ABSTRACT

Although the 1966 amendments to Federal Rule of Civil Procedure 23 were originally designed to empower civil rights lawyers to advance systemic reform, the modern damages class has evolved into a primarily private, profit-driven enterprise. The resulting disconnect between plaintiffs’ counsel and the constituencies they represent has raised enduring concerns about accountability, fairness, and legitimacy in aggregate litigation.

Drawing from the history of the injunctive class and the development of “movement lawyering,” this Article contends that a participatory framework can reinvigorate the damages class action. Movement lawyering—an approach that emphasizes attorney accountability, collaboration with affected communities, and recognition of the limits of legal reform—offers a model through which plaintiffs’ attorneys can more effectively engage class members, design fairer settlements, and strengthen broader social movements.

The Article further proposes that courts should incorporate class member participation into the adequacy-of-representation analysis under Rule 23(a)(4). By rewarding attorneys who foster class member “voice,” partner with grassroots organizations, utilize digital organizing tools, and compensate class members for meaningful participation, courts can encourage practices that advance both procedural integrity and democratic participation.

Recasting the damages class action through a participatory lens realigns the device with Rule 23’s original purpose: empowering collective action and facilitating social change. Movement-lawyering tactics thus offer a path to restore legitimacy, transparency, and democratic value to the modern class action.