by Martin H. Redish. Stanford, CA: Stanford University Press. 2009. 328pp. Cloth $70.00. ISBN: 9780804752756. Paper. $27.95. ISBN: 9780804752756.

Reviewed by Paul Chen, Department of Political Science, Western Washington University. Email: paul.chen [at] wwu.edu.


In WHOLESALE JUSTICE, Martin Redish constructs a sophisticated and provocative, even magnificent, edifice of legal-doctrinal and political-theoretical argument that questions the constitutional basis for the modern class action lawsuit (CAL) governed by Rule 23 of the Federal Rules of Civil Procedure (FRCP). He delves into both legal and political theory, and examines the modern CAL with the logical nuance and analytical precision of a philosopher, while pointing out the practical ramifications of his conclusions.

One of the reasons his book is provocative is that Redish suggests that a major piece of federal legislation, the Rules Enabling Act (REA), pursuant to which the U.S. Supreme Court promulgates the FRCP and other rules for the federal courts, is unconstitutional. To say that he presents his argument with the systematic cogency of a well-crafted legal brief is not meant to detract from his argument’s broader implications for the integrity of the legal system within our constitutional democracy.

Redish opens Chapter 1 by listing among the benefits of using class action lawsuits (CALs) “obtaining relief for many plaintiffs whose claims are insufficiently large to economically justify individual litigation, . . . and help[ing] police widespread governmental or corporate misconduct” (p.1). But, he points out, the CAL was never intended to accomplish those purposes. Instead, it is a procedural device intended only to facilitate enforcing pre-existing substantive laws (p.22). The more serious problem, however, is that CALs, according to Redish, through a “procedural shell game” can change substantive laws without approval by either voters or their elected representatives (p.3). That problem constitutes the major thrust of Redish’s thesis: that the use of CALs raises what he calls a “democratic difficulty” (pp.1, 21) in which courts engage in the equivalent of law-making without any political accountability or democratic oversight.

In the other chapters, Redish discusses a host of other problems with CALs, including (1) that many CALs are the equivalent of “judicial blackmail” (p.21) where plaintiffs’ attorneys in effect threaten the survival of business, even entire industries, by extorting money via huge damage awards (p.2); (2) that in most CALs potential class members are required to affirmatively opt out of the suit or else forfeit their right to pursue litigation individually (p.3); and (3) that, in many cases, the class plaintiffs are “all but comatose,” since many class members are neither aware of the [*373] litigation’s existence nor will ever benefit from its prosecution, making the class attorneys the CAL’s real beneficiaries (p.14, also 24-25).

Whether his readers will share his concern for these problems is something with which Redish is primarily concerned, as he addresses that issue explicitly, not just once, but in several of his chapters. I will summarize Redish’s arguments on that point at the end of this review. First, however, I will proceed to summarize the sub-theses in each of his chapters.

The primary aim of Chapter 2 is to analyze the CAL “within the broader framework of American democracy” (p.61). Despite the widespread criticism of CALs by judges and scholars, Redish notes that none seems to recognize a more serious problem, namely that CALs “undermin[e] the foundational precepts of American democracy” (p.21). He equates democracy with certain “axioms of [political] accountability and representation”: namely, that “those who make . . . social policy must (1) have been chosen by the electorate, and (2) be accountable to the electorate if they wish to continue in office” (p.46). What we lose by neglecting to examine CALs from the perspective of political and democratic theory is a proper understanding of how legal procedures and rules relate to the broader scope of our democratic system of government.

Redish explains that CALs undermine democratic government by effectively changing the substantive law, and not merely facilitating the enforcement of existing law, its intended purpose. Further, because these changes in the law, which are no different from what elected lawmakers do while in session, occur entirely outside the normal democratic law-making process, voters and/or their elected representatives have no opportunity to exercise political oversight over these changes. This is the democratic difficulty (p.21).

But how do CALs change the substantive law? Redish explains how in many cases the class of plaintiffs in a CAL is just an empty shell “solely for the purposes of display” (p.15). It is not the class plaintiffs who either decide to initiate the action or receive meaningful compensation if the CAL is successful; in reality, “it is the private attorneys who initiate suit and who are the only ones rewarded” (p.24). We know that in many CALs the injury to individual plaintiffs is so minimal that no single plaintiff would be willing to file a lawsuit against the defendant. But why should we care if the plaintiffs in the class receive little compensation, if they are getting something for basically doing nothing, and the defendant (usually a corporation) pays for its wrong?

The problem, as Redish sees it, is that a procedural device whose sole function is to facilitate the enforcement of substantive law, which is intended to compensate plaintiffs for their injuries, actually results in bringing no meaningful compensation to victims by enforcing the substantive law. We cannot know if voters would approve of this outcome because they have no knowledge of it. “It is, then, the impact on the democratic process, rather than the impact on individual class members, that gives rise to concern” (p.25). [*374]

Redish’s point is subtle. It is not that the class attorneys benefit from using CALs that should concern us. Rather, it is that their financial windfall is politically, legally, and democratically suspect. Under the scenario described above, which is not hypothetical but real, the ends of the substantive law – namely, to compensate victims for their injuries under the relevant law – is at best thwarted and at worst perverted for another end – namely, to reward entrepreneurial lawyers for prosecuting legal claims on behalf of a nominal class of plaintiffs, most of whom do not even know about the litigation.

In Chapter 3, Redish addresses other problems arising from the use of CALs in the broader context of the FRCP and the Rules Enabling Act (REA). Redish notes that the FRCP, and especially Rule 23 governing CALs, has a “dramatic impact on fundamental socio-political and economic concerns: the allocation of governmental resources, the redistribution of private wealth, the effectiveness of legislatively imposed behavioral proscriptions, and the concerns of fairness and equality” (p.62). In comparison to the amount of political controversy stirred up by other recent FRCP amendments, such as those involving electronic discovery, which prompted heated “testimony by trial lawyers associations, representatives of large global companies, and spokespersons for consumer groups,” Redish notes that Rule 23 has “generated the most intense political controversy in recent years” (p.72). Despite recognition of this fact by scholars, none has analyzed how this might affect either the interpretation or constitutionality of the REA, the federal statute that authorizes the Supreme Court to promulgate and amend the FRCP and other rules (p.63). Redish believes that, were the REA subjected to serious constitutional scrutiny, it would very likely be found invalid (p.65).

The Constitution, to prevent the judiciary from exercising purely legislative power, restricts courts to law-making incident only to adjudicating legal disputes. But, as Redish notes, the REA actually vests the Supreme Court with law-making power independent of any adjudicative function (p.64). He explains that because the original drafters of the REA had a more formalistic conception of the dichotomy between legal substance and procedure, they thought it constitutionally permissible to insulate the Supreme Court’s promulgation of procedural rules pursuant to the REA from the constitutional requirements of legislative enactment and presentment (p.69). It seemed that, in the minds of the drafters, doing this was permissible “because procedure is, by definition, internal to the operation of the judiciary” (p.64). But this is “political nonsense.” No one in the legal community today denies that “procedural rule-making involves the weighing of substantial policy interests and dynamically alters the development of the substantive law” (p.73). Redish states that this is “especially” true of the rules governing CALs (p.64).

Although Congress can legislatively reject or overrule any rule the Court promulgates, that, Redish argues, would not allow Congress to delegate law-making power to the Court to promulgate rules of consumer protection or products liability (pp.84-85). By allowing the Court to promulgate procedural rules pursuant to the REA [*375] outside of normal law-making, Redish claims that Congress has violated the separation of powers and “undermined the essence of the democratic process” (p.84). As he points out, while modern constitutional scholars may deem doctrinal concerns over the separation of powers irrelevant, at some point “the Constitution will be found to prohibit the delegation of purely legislative authority to the Supreme Court” (p.74).

In Chapter 4, Redish examines the CAL from the perspective of political theory, specifically democratic theory. He compares his own view of “traditional liberal political theory, grounded in a foundational commitment to a belief in the worth and integrity of the individual as a core participant in a democratic society” (p.88), to other political theories that are implicated in conceptions of the CAL advocated by other scholars (pp.93-106): namely, liberalism (his own view), utilitarianism, democratic communitarianism, and civic republicanism (pp.106-125).

I cannot do justice to Redish’s political-theoretical analysis of the CAL within the scope of this review. I will point out, however, that key to Redish’s critique of alternative conceptions of the CAL is his belief that process-based autonomy (PBA), which concerns the types of decisions one makes about one’s participation in and influence on democratic processes or institutions (p.89), is “essential to the functioning of a civil justice system within a liberal democratic society” (pp.90, 134). (Redish gives a plausible account of the normative philosophical basis for the adversarial nature of the U.S. legal system and its relation to both PBA and liberal political theory (p.97-98), which he then elaborates further in Chapter 5.) On that basis he proposes an “Individualist Difference Principle” derived from the liberal theory of John Rawls (pp.125-127). In summary, Redish explains that this principle, “[e]ven when it authorizes collectivization [via CALs], . . . views litigants as autonomous beings brought together as an aggregate of individuals. . . [whose] rights . . . remain individually held and are simply brought in one proceeding” (pp.126-127). (Redish will later in Chap. 5 contrasts his conception of the CAL with an “entity-based” model proposed by David Shapiro and Michael Issacharoff [see pp.151-155]. But it is in Chapter 4 that he states his rejection of that model because it is based on political theories that give insufficient weight to the important role of PBA in democracy [p.125].)

In Chapter 5, Redish, building upon his discussion of PBA in the previous chapter, argues for a procedural due process basis for adversarial litigation that is premised on a “foundational interest in litigant autonomy,” and then discusses the implications of that for CALs (p.137). His discussion involves three key topics: first, the significance of litigant autonomy in the legal system (pp.135-147); second, a critique of the entity theory of CALs (pp.147-157); and third, a critique of the current opt-out procedure used in CALs (pp.157-173), which he initially discussed in the previous chapter.

In this chapter, Redish defends a bold claim that the logical conclusion of liberal democratic theory is a fundamental belief in what he calls litigant autonomy – i.e., the right of individuals to decide for themselves [*376] whether and how to protect their rights by resorting to the legal process. Further, litigant autonomy, he argues should “be recognized as a foundational element in the theory and structure of procedural due process, [which is] a constitutional protection that itself grows out of . . . liberal democratic thought” (pp.139, 173). What he finds troubling is that, while the Court has long acknowledged that the use of CALs may be limited by due process concerns, and scholars have considered the implications of due process on CALs, “virtually all of this . . . attention has focused on the paternalistic concern that the named parties adequately protect the interests of the absent class members” (p.135), yet completely discounts the right of litigants to control, even initiate, their own lawsuit. Redish likens the above scenario to the government notifying voters that it will deem them to have voted for a Democrat unless they affirmatively indicate their desire to vote for a Republican (pp.135-136, 172).

After explaining the common law origins of a “chose in action,” i.e. the right to litigate, as a property right (149-150), Redish critiques the entity model of CALs proposed by Samuel Issacharoff and David Shapiro, who conceive the CAL as fusing the individual plaintiffs into a single aggregated litigant-entity that is subject to fewer due process limitations (p.151). Redish rejects the entity model of CALs as “predicated on a fundamental misconception”: because the CAL is a purely procedural mechanism used to aggregate “PRE-EXISTING individual private rights created by substantive law,” the CAL “itself creates no causes of action.” According to Redish, CALs based on the entity model “would effectively transform pristine pre-existing individually held private rights into a kind of collective right, NEVER CONFERRED BY THE UNDERLYING SUBSTANTIVE LAW” (p.155, emphasis in the original). Tying this to the democratic difficulty, he argues that such a conception of the CAL “not only erodes the concept of individually created rights, but also works serious harm to our democratic political system by transforming the nature of substantive law through resort to the procedural fig leaf of the Federal Rules” (p.155).

In the last section of Chapter 5, Redish attacks the current procedure of requiring class plaintiffs to affirmatively opt-out of CALs or else be included in the litigation by default. He argues that mandatory class actions are unconstitutional except in “very limited circumstances” (pp.137, 174). (Redish notes that only one of the mandatory class actions [under Rule 23(b)(1)(A)] might justify inclusion by default: where, without inclusion in the class, “the party opposing the class risks inconsistent judicial directives from individual actions where the party’s behavior vis-à-vis all class members is indivisible” [p.174].) Otherwise, an opt-out procedure results in creating a “‘faux’ class, which does not truly represent an aggregation of willing plaintiffs as much as [it is] a comatose grouping of absent class members who know little or nothing of the proceeding.” Further, if we take a litigant’s interest in PBA – i.e. the right not to be included in a litigation either against one’s will or over which one lacks full control – as a “significant constitutional right,” then the opt-out requirement amounts to a waiver of that [*377] right. But, Redish notes, “[i]n virtually no other context may constitutional rights be formally waived by such total passivity.” He concludes the chapter by proposing to replace the opt-out procedure with an opt-in requirement (p.175).

Chapter 6 is devoted to the problems associated with a more recent variant of the CAL, the settlement class action (SCA), which Redish describes as “nothing more than a non-litigation means of resolving potential disputes” (p.177). The problem he sees with SCAs is that, because they involve no live dispute between the litigants – in fact, the parties are “in complete agreement” from the very outset of their “litigation” – SCAs lack genuine adverseness. And if the parties are not adverse, which is an essential element for federal jurisdiction under Article III, then SCAs are, as Redish argues, unconstitutional (p.178).

In the first part of Chapter 6, Redish “provide[s a] textual, doctrinal, and theoretical analysis of the adverseness requirement” (p.179), explaining why it is vitally important under the Supreme Court’s procedural jurisprudence – not just because the constitutional text prescribes it (pp.190-193), but because the separation of powers doctrine as well as liberal democratic theory dictate it (pp.194-204). He then examines the SCA in light of those three criteria (pp.206-227).

Redish identifies both private and public concerns arising from the adverseness requirement. The private concern is meant to honor the foundational value of litigant autonomy in controlling one’s case (p.196). He explains that our adversarial legal system, which is rooted in liberal democratic theory, requires that litigants be truly adverse for a suit to be justiciable (p.194). Further, this requirement is closely related to PBA discussed in Chapter 5.

Perhaps even more important, however, is the public concern arising from the adverseness requirement, which is implicated because of the fact that future potential litigants are bound by the outcome of the earlier litigation. But, as Redish points out, if all that “parties wish to do is legally codify their agreement or the already-reached resolution of a prior dispute,” they need only sign a contract. “There is absolutely no need to proceed to litigation – unless, of course, they wish to impact the legal interests of others,” which then raises suspicions about the litigants’ motives in bringing the suit as an SCA (p.198). Redish concludes that “the sole motive [to initiate a SCA] is to bind the interests of absent class members” (p.212).

Another aspect of the public concern of the adverseness requirement is that it is “indispensable” to our system of separated powers. Against the backdrop of a legal system premised on adversarialism, Congress has chosen to enforce many of its statutes via private lawsuits under the premise that private individuals can serve as quasi-private attorneys general (pp.202-203). But if courts assume jurisdiction over cases that lack genuine adverseness, as they do in SCAs, this risks both under-enforcing these statutes (p.203) as well as under-compensating victims (p.202).

Further, the adverseness requirement serves a “critical function” to distinguish [*378] judicial powers and functions from those of the executive (p.202). In an SCA where the parties already agree on the outcome before requesting certification by the court, a court that certifies the class is basically exercising executive powers as, in effect, an administrative agency by supervising and administering the redistribution of assets dictated by an agreement previously reached by the parties (pp.203). In doing this, Redish argues, “courts have neglected their fundamental Article III obligation to hear only adversarial cases or controversies – an obligation rooted in the text, jurisprudence, and values served by the adversariness requirement” (p.227). Therefore, pre-certification SCAs, according to him, are constitutional.

In Chapter 7 Redish summarizes his arguments. His two main sub-theses can be stated as follows. First, in Chapters 2 and 3, he argues that, on a “macro level,” the current structure of CALs undermines democracy “by the indirect manipulation of underlying substantive law under the guise of a procedural mechanism,” thereby “contraven[ing] basic dictates of legislative transparency and electoral accountability” (p.228). Second, in Chapters 4 and 5, he argues that, on a “micro level,” CALs “threaten core notions of liberal democracy . . . by restricting the individual’s autonomous ability to employ the judicial process as a means of protecting her substantive legal rights,” thereby “contraven[ing] both constitutional and political values, by simultaneously violating procedural due process rights and fundamental precepts of process-based liberal individualism that are central to the attainment of the liberal values of individual worth, integrity, and development” (p.229).

If one agrees with Redish’s argument that our laws should have some rational and logical coherence with the goals or ends, explicit and implicit, dictated by the practical implications of normative political theory, then it is difficult to deny his major thesis that the modern CAL is problematic as a matter of normative democratic theory and also unconstitutional as a matter of law.

But the question that many readers may ask is whether any of these legal-constitutional or political-theoretical problems that Redish raises really matter. Many readers, as I believe Redish suspects, are willing to overlook the abstract, philosophical transformation that worry him, so long as in the end they think good social objectives are achieved. But what criteria should we use to determine that? If one says that it should be based on law, then the problems that Redish identifies seem serious, because his argument is based on normative legal principles. But even if one says the determination should be based on politics, taking that position does not solve the problems either. Redish’s argument is, in a sense, in favor of politics. He argues that in many cases the outcomes of CALs may not just lack democratic support from voters, but worse, may evade the democratic process altogether by flying under the radar of political accountability.

Redish is, it seems to me, arguing for a political-democratic solution to these problems. Rather than allow the Supreme Court to promulgate law under a constitutionally suspect federal statute (i.e. the REA), we should subject those outcomes for approval by either the voters or their elected representatives. If readers ascribe this as concern for mere legal formalism, then we should ask [*379] ourselves whether we are willing to eliminate the concept of due process in favor of only substance. To put it more bluntly, are we willing to cast aside the “mere formalism” of due process if we think the ends justify the means? The idea of due process, I tell my students, is that justice is more likely achieved by following set procedures and fully disclosing the stakes of a legal claim. That seems to be Redish’s basic argument, albeit in a much more sophisticated, nuanced, and detailed manner.

A quibble I have with Redish is his assertion that the modern CAL arose in response to liberal-progressive forces during Lyndon Johnson’s administration, when “the rulemakers saw a need for procedural devices that would legally empower otherwise unempowered groups” and transformed Rule 23 into an “important instrument for enforcement of legislative and common law proscriptions of business behavior” (p.72). Although he includes four footnotes, none support his assertion. The first three footnotes (fns.81-83) cite a 1967 HARVARD LAW REVIEW article by Benjamin Kaplan, but there appears to be nothing “political” about Kaplan’s justification for the amendments, which reads like an arid lecture on civil procedure. Then the fourth footnote cites a 2005 L.A. TIMES story noting the impact that CALs have on business.

To his critics who insist on the benefits and utility of using CALs, Redish simply replies that “neither the American democratic system nor its constitutional structure has as its primary purpose the achievement of convenience” (p.232), echoing Chief Justice Burger’s words in INS v. CHADHA, that “[c]onvenience and efficiency are not the primary objectives – or the hallmarks – of democratic government” (462 U.S. 919, 944). I fear, however, that just as the political branches paid little heed to that ruling, Redish’s clarion call warning of the constitutional and theoretical problems with CALs may draw a similar response.

But even if that were the case, Redish has made a major contribution to the discussion with his political-theoretical critique based on democratic theory, a perspective that others have rarely acknowledged, much less examined. This reviewer, who teaches introduction to law and judicial process, found particularly intriguing the logical and normative connections that Redish makes between liberal democratic theory, procedural due process, other judicial doctrines (e.g. the case or controversy requirement for federal court jurisdiction under Article III), and the adversarial nature of the American legal system. My understanding and appreciation of how these fundamental concepts are intricately related has been deeply enriched by this book, and I therefore highly recommend it to scholars and advanced graduate students.

Kaplan, Benjamin. 1967. “Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I).” 81 HARVARD LAW REVIEW 356-416.

INS v. CHADHA, 462 U.S. 919 (1982).

© Copyright 2010 by the author, Paul Chen.