Developments in the Law: Class Actions

Briffault, Richard

This Note will attempt to work out a general approach to class actions recognizing the public law character of such suits and the consequent need for taking absentee interests into account in class procedures. It is postulated that the interests (and interrelationships of interests) of absentees are relevant because courts in deciding cases are under an obligation derived from substantive law to consider and reconcile those interests. This obligation can be seen most clearly in contemporary equitable doctrine, but it is also implicit in efforts by courts to discover -- through devices such as the appointment of masters and the recognition of amici -- the impact of their decisions on those not before the court. On the other hand, substantive law itself may restrict the procedural mechanisms available for recognizing absentee rights. The central problem of class action procedure therefore becomes the design of a mechanism for registering absentee interests which will not distort the law that makes those interests relevant.


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September 21, 2016