Document Type

Article

Publication Date

2023

Publication Citation

100 Washington University Law Review 611

Abstract

Class actions can have profound effects. But theorists, policymakers, and judges have long worried that attorneys can use them for their own advantage, reaping generous rewards for themselves while class members receive next to nothing. Unlike citizens or shareholders, members of a class cannot exercise democratic control over the attorney that nominally works on their behalf. I label this the democratic critique of class actions, and it has been the dominant framework for understanding class actions, shaping both case law and reform proposals.

The democratic critique is based on a false premise, though, because it does not take into account the downsides of democratic control. Drawing insight from the political economy literature, I show that there is an inevitable trade-off between control and expertise: if class members had control, they would lose the specialized knowledge that the attorney brings to the table. In other words, voting over litigation decisions would actually make class members worse off. Strategic features of the relationship make it hard for them to accept even well-meaning advice from their attorney: the mere possibility that the attorney might mislead them prevents information from being conveyed. Perversely, honest advice actually leads class members to make especially bad decisions. Given the choice, class members would rather delegate matters to the attorney instead of exercising class action democracy.

By blunting the dominant critique of class actions, this Article goes a long way to reestablishing their legitimacy. It also suggests better ways to protect class members’ interests. Rather than looking to institute democratic procedures in class actions or find some substitute for them, judges should engage in careful scrutiny of attorney fee arrangements and the structure of settlements. Class action law should ensure that the attorney does well if and only if their client, the class, does.

Download

Share

COinS