Class Counsel, Self-Interest, and Other People’s Money

Abstract

The uproar over class actions has been building for years. Despite numerous efforts at reform, things are not getting much better. This hostility toward the class action appears to be driven by twin concerns – the class action can be unfair to defendants on one hand, and it can impinge on the interest of plaintiffs in pursuing strong individual claims on the other. The thesis of this article is that Federal Rule of Civil Procedure 23, which governs class actions in federal court, as it functions today, fails, at least in part, because it is employed without regard to a proper view of human nature. A recognition of man's natural selfishness is part of the warp and woof of our legal system. At every step, the framers of the U.S. Constitution were careful to check the power of men over other men. This article suggests that many of the widely recognized problems with class actions as they are conducted today stem from the law’s failure to account for the fact that class counsel, while officers of the court, are also, like the rest of us, mere men and women, not angels. Because class counsel are mere mortals, with all the natural self-centeredness that mortal status entails, the power of class counsel to benefit themselves at the expense of defendants and at the expense of their own clients must be checked, not merely re-directed, or it will be wielded in the interest of those counsel and to the oppression of both plaintiffs and defendants.

Keywords: class action, Federal Rule of Civil Procedure 23, self-interest, civil procedure