Vanderbilt University law professor Brian Fitzpatrick has written a new book titled The Conservative Case for Class Actions (University of Chicago Press, 2019). An excerpt was published in the winter 2020 issue of Vanderbilt Law. I haven’t read the book yet, but since I am a class action lawyer, a conservative, and a Vandy grad, I found the excerpt intriguing and worthy of mention.
Fitzpatrick proposes that class action lawsuits are good for conservative principles, even if they are not necessarily good for “big corporations.” He makes the following arguments in support of this proposition:
- Reliance on markets alone is insufficient to regulate business conduct. Conservatives support rules requiring companies to do such things as honor their contracts, not commit fraud, and not form cartels to fix prices. Class actions enforce those rules by letting one person sue for everyone else, transforming an unprofitable lawsuit for a small amount of money into a profitable lawsuit for a lot of money.
- Reliance on the government to provide the necessary regulation of business conduct is less desirable. Conservatives believe the private sector is better than the government at doing most anything. Class actions provide privatized enforcement of the law.
- The second most liberal president in American history, Jimmy Carter — he doesn’t say who he thinks is the most liberal — proposed abolishing most private class action lawsuits and replacing them with government lawsuits. It is anomalous that today’s conservatives are joining Carter in that regard. As an example of this, he cites conservative support of recent Supreme Court jurisprudence allowing companies to insulate themselves from class action lawsuits through arbitration provisions in employment or consumer contracts.
- Conservatives should support the profit motivation of plaintiff’s class action lawyers because this supports free markets, and these private actors will do a better job than “salaried, tenured government bureaucrats do.”
To be sure, Fitzpatrick acknowledges that many of the rules we have adopted in the market “go too far” and, therefore, those who seek to enforce them (that is, plaintiff’s class action lawyers) also sometimes “go too far.” He says, however, that the solution is “not to kill all class action lawsuits; it is to get rid of the rules we don’t like — or, if that is not possible, to kill only the class actions that seek to enforce rules that we don’t like.” He suggests that perhaps “we should reserve the class action only for the good laws like breach of contract, fraud, and horizontal price fixing.”
At least in the excerpt, Fitzpatrick doesn’t say who is trying to kill all class action lawsuits (I don’t know of anyone). Nor does he say what laws he has in mind that “go too far,” although here it doesn’t require much imagination to think that statutory claims bereft of actual injury or damages (you know, the kind that draw Spokeo motions to dismiss for lack of standing) may be at least in part what he has in mind.
Fitzpatrick also seems to agree that, at least at times, an “unbridled profit motive can lead to destructive consequences,” and therefore class action lawyers should be regulated in some way (undefined, at least in the excerpt), beyond the judicial supervision of the settlement process already required by Federal Rule of Civil Procedure 23. He agrees that right now “class actions are too expensive and risky for companies to defend.” But his proposal to conservatives is to mend the class action, don’t end it.
Since I have only read the excerpt, it would be premature and unfair for me to offer a critique of his proposal without reading the entire book. I am glad that Fitzpatrick seems to recognize many of the problems inherent to the modern class action device, including the blackmail settlement problem and the proliferation of meritless claims. Indeed, I wonder whether he is too sanguine about the ability or desire of busy trial court judges to ferret out meritless claims at the front end of what is often an unavoidably expensive and disruptive litigation process. I also found curious his criticism of conservative support of class action waivers and no-class arbitration clauses. What’s wrong with supporting a privatized dispute resolution process in the place of mandated use of the government system? That sounds conservative to me.
Suffice it to say that Fitzpatrick provides a provocative and intriguing thesis worthy of further consideration.