The Search for the Adequate Representative in Class Action Litigation

DePaul Law Review Volume 34 Issue 1 Fall 1984 Article 4 Protecting the Class: The Search for the Adequate Representative in Class Action Litigation George M. Strickler Jr. Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation George M. Strickler Jr., Protecting the Class: The Search for the Adequate Representative in Class Action Litigation, 34 DePaul L. Rev. 73 (1984) Available at: https://via.library.depaul.edu/law-review/vol34/iss1/4 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. PROTECTING THE CLASS: THE SEARCH FOR THE ADEQUATE REPRESENTATIVE IN CLASS ACTION LITIGATION George M. Strickler, Jr.* For over 300 years, courts have been troubled by the problem of defining the circumstances that justify the legal determination of the rights of persons not formally joined as parties in litigation. Despite the theoretical and practical problems that are posed by cases where the rights and liabilities of absent parties are resolved, the archetypical suit of this kind-the class action-has flourished in the twentieth century. Our legal system has found many uses for the class action device. Consequently, class actions have become familiar features on the judicial landscape. Yet the proper condi- tions for litigation on behalf of non-joined groups and non-consenting individuals are debated continually. Due process requires that absent class members be adequately represented, because they are bound by the res judicata effect of the litigation.' No problem has proved more perplexing than that of defining "adequate" representation. What qualifies a person who desires to bring a class into being, to represent the group and assert a claim on its behalf? During the last thirty years, class actions have been used increasingly in civil rights and institutional reform litigation.2 Frequently, such actions were instituted by persons motivated more by desire to effect social, political, and economic change, than by traditional notions of self-interest. These suits often attacked a variety of practices on behalf of groups whose only common trait was the race or sex of their members. In the late 1960's and 1970's, broadly-based class actions were the staple vehicle for enforcement of the public policies expressed in federal civil rights legislation.' The policy justifica- tions for liberal treatment of class actions, combined with the lack of standards for testing a representative's capacity to represent the class," led the courts in that era to avoid addressing the question of representational adequacy, even though such an inquiry was mandated by Rule 23 of the Federal Rules of Civil Procedure (Rule 23).' Certification of classes as broad as the plaintiff's attorney's "ingenuity and syntax would allow ' 6 became * Associate Professor, Tulane University School of Law. A.B., Southern Methodist Univer- sity; J.D., Yale University. I wish to thank my colleague Catherine P. Hancock without whose encouragement, criticism, editorial assistance, and prodding, this work would have remained messy piles of paper cluttering my office. I also gratefully acknowledge the assistance of Lisa Curtis, J.D., Tulane University, 1983 for her tireless and meticulous proofreading. 1.See Hansberry v. Lee, 311 U.S. 32, 44 (1940). 2. See infra discussion in text Part II A. 3. See infra discussion in text Part I1A, II C. 4. See infra discussion in text Part I C. 5. See infra discussion in text Part I B, I C. 6. Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1126 (5th Cir. 1969) (God- bold, J.,concurring). DEPA UL LA W REVIEW [Vol. 34:73 the rule. Whether the plaintiff and counsel could, in fact, protect the interests of absentee class members was not explored in any meaningful way. As a conservative majority on the Supreme Court asserted itself in the late 1970's and early 1980's, a backlash against liberal class treatment was inevitable. 7 The reaction could have taken the form of a development of standards for representation aimed at the problem of protecting the rights of absentee class members. Unfortunately, the Court chose to ignore the opportunity to articulate a protective standard. It adopted, instead, a narrow and unnecessarily formalistic construction of Rule 23 that is fundamentally inconsistent with the Court's own decisions applying the "case or controversy" requirement of article III in the class action context., This current approach threatens to interfere with the class action's function as a tool for the private enforcement of social policies. Most importantly, the Court's new tack has not advanced the essential inquiry of adequate representation, but instead has inhibited development of a rational approach to the problem in the lower federal courts.' It is not too late, however, to begin addressing the question of what constitutes adequate class representation because courts do possess the tools for assessing and insuring adequacy of class representation."0 Part I of this article traces the development of concepts of representative adequacy from the English Chancery Court origins of group litigation through the present version of federal Rule 23. Part II describes how the current unhappy state of the law came to pass in the context of civil rights class litigation. Part III outlines and illustrates a procedure for the determination and subsequent monitoring of the representative's protection of class interests. Part IV briefly addresses other proposals for the determination of adequacy. I. HISTORY AND THE FEDERAL RULES A. English Practice and the Equity Rules The origins of the modern class action lie in seventeenth century chancery procedures devised to settle disputes between two groups: agrarian tenants and their landlords, and parishioners and their clergymen." Early group actions were filed by or against cohesive communal groups to enforce or define a custom of the manor or parish. The decisions that resulted from 7. See infra discussion in text Part II C. 8. See infra discussion in text Part II B, 11 C. 9. See infra discussion in text Part II D. 10. See infra discussion in text Part III. 1I. See Z. CHAFEE, SOME PROBLEMS OF EQUITY 157-67, 200-01 (1950); Yeazell, Group Litiga- tion and Social Context: Toward a History of the Class Action, 77 COLUM. L. REV. 866, 867 (1977) [hereinafter cited as Yeazell, History of Class Action]; cf. Marcin, Searching for the Origin of the Class Action, 23 CATH. U.L. REV. 515, 516-17 (1974) (asserting that although scholars have generally recognized that class actions originated in the seventeenth century, they actually originated in the thirteenth and fourteenth centuries). 19841 PROTECTING THE CLASS these actions had the force of law. For example, tenants frequently sued to determine the amount which the lord of the manor could charge for per- mitting succession to a tenancy 2 or to fix other obligations running with the land.' 3 In a frequently cited case, Brown v. Vermuden,'4 a vicar sued his flock to enforce customary tithes. These examples of early group litigation shared a number of distinct characteristics. In the first place, they were filed on behalf of, or against, close-knit groups whose members had expressly consented to being represented in the case by a few of their number.,, The substantive rights at issue were, by definition, common to all members because of their status in their communities."1 Due to stare decisis, the effect of the judgment on members of the groups would likely have been the same as if the suits had been filed solely on behalf of the individual plaintiffs.' 7 Thus, the procedural device made little, if any, difference in the first class actions. In a series of seminal articles, Professor Stephen Yeazell has described how, in the eighteenth and early nineteenth centuries, the device created to facilitate resolution of post-feudal agrarian disputes was adopted to address problems created by new social organizations that were the products of the industrial revolution.8 These new organizations, the forerunners of the publicly-held corporation and the trade union, created problems because they were not considered legal entities.' 9 When disputes between these organizations and third parties arose (typically, between organization members and officers accused of malfeasance), the question presented was whether a suit could be filed on behalf of the members forming the organization. The organizations could not sue in their own names without legal status; however, because of the nature of the rights asserted, relief could not be granted to individual members without joinder of all parties who would be affected. According to chancery doctrine, group litigation was impossible without joinder of all parties who would be necessarily affected. The solution was for the individuals to file suit for themselves and on behalf of the members of the group. These groups, however, bore little, 12. See Brown v. Howard, 21 Eng. Rep. 960 (Ch. 1701) (suit to limit fine due on death or alienation); Morgan v. Schudamore, 21 Eng. Rep. 638 (Ch. 1677-1678) determining fine due on renewal of 99-year lease); Farrer v. Duckett, 73 Publ. Selden Soc. 300 (Ch. 1675-1676) (claim of res judicata by prior suits of other tenants). 13. See generally Yeazell, History of Class Action, supra note 11, at 872 n.30 (discussing group litigation involving members of agricultural communities). 14. 22 Eng. Rep. 802 (Ch. 1676). For a discussion of the Brown case, see Z. CHAFEE, supra note 11, at 201; Yeazell, History of Class Action, supra note 11, at 869-71.

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