Bending in the Breeze: American Class Actions in the Twenty-First Century


Writing in the DePaul Law Review, Richard Marcus observes that it is always better to have the breeze at your back, but that surely has not recently been the case for class action proponents. At the risk of overstating, there is a certain fin de siècle flavor to current procedural discussions, at least among academics; it seems that several foundational principles of late twentieth century procedural ordering have come under attack in the twenty-first century. Although not alone among those principles, class actions have a prominent role. Dean Robert Klonoff has recently written of “The Decline of Class Actions,” and Professor Linda Mullenix has written of “Ending Class Actions as We Know Them.” Professor Arthur Miller-who was present at the creation of the modern class action-has suggested that we face “the death of aggregate litigation by a thousand paper cuts.” But he, at least, sees some “rays of light that indicate it will survive.” …

Without questioning in the least the idea that proponents of the class action have suffered some reverses recently, I argue that Professor Miller’s optimism about American aggregate litigation is justified. Like Confucius’ green reed, the class action is likely to bend in the breeze and survive the current, cold climate. In significant part, this attitude stems from an appreciation of the exceptional character of American class actions in particular and the American bench and bar in general… Against this background, it does not seem that American aggregate litigation in general, and class actions in particular, are in danger of extinction.


Citation:  Marcus R. Bending in the Breeze: American Class Actions in the Twenty-First Century DePaul Law Review, 2016; 65: 497- 533.