Joshua P. Davis · May 2014
82 GEO. WASH. L. REV. 890 (2014)
Classwide recoveries can have important advantages over individual recoveries. They can, for example, allow plaintiffs to pursue litigation when individual actions would be uneconomical, and they can make possible a statistical approach that is often not feasible in ordinary litigation. This Article makes these points and then explores subtler issues. In doing so, it focuses on situations in which classwide recoveries can offer a way to tailor a defendant’s overall liability to the precise harm it caused. The circumstances in which this benefit accrues are important: when some but not all members of a group suffered injury, and when identifying those members of the group that were harmed is impossible or impractical. This issue has great significance. A recent controversy in class certification jurisprudence is whether plaintiffs must show harm to all or virtually all members of a proposed class to satisfy Federal Rule of Civil Procedure 23. This Article suggests a novel and counterintuitive thesis: class treatment and classwide recoveries can be particularly valuable precisely when some courts have questioned the propriety of class certification. To be more precise, classwide recoveries can impose just the right amount of liability on a defendant when plaintiffs can show the total harm the defendant has caused but cannot identify which class members suffered resulting injuries. Ironically, some courts have expressed reluctance to certify classes in just these circumstances.
