Class Actions and Justice
Roughly a month ago, I was invited to speak on a panel at “Class Actions and Justice,” a conference cosponsored by the American Constitution Society for Law & Policy, Public Justice and the Cardozo School of Law. I was asked to address some of the ways in which class action litigation had been used in the civil rights and human rights context.
In preparing my remarks, I was struck particularly by an obscure class action from Kansas that many progressives fail to recognize as a class action. This was a case that changed the face of our nation, and the way we see ourselves and each other, a case that represented a step toward achieving our nation’s promises – Brown v. Board of Education.
Brown v. Board used what we now would call a Rule 23(b)(1) or (b)(2) class action to achieve, through the rule of law, something that Americans for the most part, individually or in the aggregate, had resisted. Of course, thinking of Brown made me think of other human rights uses of the class action instrument, such as the Marcos litigation brought by roughly 10,000 victims of a generation-long reign of terror in the Philippines, a class action that was fully tried and affirmed on appeal.
Certain benefits of class actions are discussed often. Aside from their role in facilitating judicial efficiency, class actions play powerful roles in ensuring access to justice in our courts. Class actions allow plaintiffs who might not be able to litigate their claims individually, to seek redress in the courts as a group. Also, in limited fund cases, class actions encourage equal relief for the entire group of individuals harmed, not simply those who have the resources to litigate their cases first. However, thinking about Brown v. Board made me reflect upon some of the less discussed benefits to class actions.
Class actions, at their core, are an exercise in aggregation. Aggregation puts together individuals, but the class action, as representative prosecution, does more: it creates an empowered whole far greater than the sum of its disenfranchised parts. As expressed in the great California Supreme Court Justice Stanley Mosk’s opinion in the landmark consumer class action Vasquez v. Superior Court:
Modern society seems increasingly to expose men to group injuries for which individually they are in a poor position to seek legal redress, either because they do not know enough or because such redress is disproportionately expensive. If each is left to assert his rights alone if and when he can, there will at best be a random and fragmentary enforcement, if there is any at all.
The class action, “an effective and inclusive group remedy,” is our progressive common law’s transformative response.
Class actions, thus, have the power to empower clusters of individuals to see themselves as groups, to create a sense of community, to view individual harms through the prism of larger patterns of injustice.
In this manner, class actions can be seen as instruments of cultural change and engines of justice
movements.
To hear Elizabeth Cabraser’s remarks and to access video footage of the “Class Actions and Justice” conference, please click here.