Document Type

Article

Abstract

Class actions face a crisis of governance. The form of governance provided by Rule 23, governance by representative parties, is both vague in theory and ignored in practice. Instead, by a combination of procedural rules, judicial interpretation and common practice, the class is governed by a regime of attorney dictatorship with limited judicial oversight. This regime neither reflects the basic insight that the class and attorney do not have a traditional attorney-client relationship nor performs the task of transforming the inchoate collectivity of the class into an organization that protects and is responsive to the will of class members. This Article proposes an alternative regime of governance for 23(b)(3) small claims class actions that accomplishes both these things, based on four fundamental principles: mandatory disclosure of material information, an actively adversarial process, expertise of decision-makers and independence of decision-makers from influence and self-interest.

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