Robert G. Bone · May 2014
82 GEO. WASH. L. REV. 651 (2014)
This Article focuses on a conflict at the core of federal class action law between an “internal” and an “external” view of the class. The internal view sees the class as a device constructed by the judge to achieve the functional goals of Rule 23. The external view sees the class as a group with a unity existing prior to the certification decision. The conflict is connected at a deeper level to competing normative models of the class action. The outcome-based model, linked with the internal view, focuses on the benefits of class litigation for outcome quality and assumes that good outcomes go a long way toward satisfying due process values. The process-based model, linked with the external view, focuses on litigant autonomy, requires clear and strong out- come quality gains to justify class treatment, and confines the class action to classes with sufficient group cohesion to support the legitimacy of representative adjudication.
While these two views have both contributed to the shape of modern class action law, the external view has gained considerable ground over the past fifteen years. This Article first traces the two views through class action history and describes the growing influence of an externally defined “cohesive class” requirement. The Article then examines the normative case for the external view and the process-based model and finds it seriously wanting. Two conclusions emerge from this analysis. First, if we are to make progress with the class action, the debates must be informed by a more rigorous account of due process and adjudicative legitimacy. Second, problems with the class action should be confronted directly rather than addressed indirectly through a cohesiveness requirement that sends courts on a hopeless, misguided search for class unity.
