The New Class Action Jurisprudence and Public Interest Law


‘Class actions have always contended with imputations of illegitimacy.’ Conservatives have viewed class actions as promoting unproductive litigation. Some progressives have argued that class actions privilege the lawyer’s role, stifling the voices of clients.’ Along with Calmore and Tremblay, among others, I have sought to develop a contextual approach that acknowledges criticisms of public interest law from a progressive perspective while recognizing the importance of institutions already in place, such as federally funded legal services and clinical legal education. The Supreme Court has recently issued two decisions, Amchem Products, Inc. v. Windsor’ and Ortiz v. Fibreboard Corp., that invoke concerns about legitimacy and the adequacy of representation to bar class certification and settlement under Federal Rule of Civil Procedure 23(b)(3) in certain contexts involving money damages for “mass torts” such as exposure to asbestos. In deciding these cases, however, the Court left undisturbed the case law on Rule 23(b)(2) class actions, which typically involve suits for injunctive or other equitable relief against governmental or private entities that have allegedly engaged in illegal practices.

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