The adaptive American judiciary: from classical adjudication to class action litigation.

ABSTRACT

Beginning primarily in the late-twentieth century, the American legal system underwent several rather dramatic changes in procedure and practice. In particular, class action litigation has become one of the distinguishing features of our legal system and it remains one of the most politically controversial areas of law. This article outlines recent fundamental changes in the American legal system by examining several prominent legal models suggested by scholars. It also specifically evaluates the class action device by theoretically analyzing several widely expressed concerns. Although these concerns are sensible, the history of the American legal system has demonstrated its remarkable adaptability and a careful analysis of specific concerns suggests some promising solutions, several of which have already resulted in considerable improvements.

INTRODUCTION

The American judiciary, particularly during the past several decades, has critically impacted our sociopolitical landscape. Federal courts have profoundly influenced nearly every major policy issue, including civil rights, women's issues, criminal punishment, health care, education, environmental regulation, corporate conduct, and consumer protection. Although a great deal of public discourse focuses on the policy issues themselves, legal scholars have identified fundamental changes in the formal structure and procedures of the courts as an underlying impetus of legal and political developments.

The purpose of this article is to provide a historical framework for evaluating developments in the American legal system and to demonstrate its remarkable versatility in resolving persisting institutional and procedural issues. In particular, this paper synthesizes existing scholarly literature on legal models and the major developments of the American legal system and evaluates claims regarding a relatively recent development--class action litigation. Part I presents the concept of a legal model and comments on its purposes and inherent limitations. Part II discusses the six most prominent legal models, in roughly chronological order, and then briefly identifies other trends and variations in the American legal system. Part III redirects the discussion to class action litigation and offers a brief history of the class action device. Part IV analyzes some of the most important concerns expressed by scholars regarding the potential consequences of class action litigation. Part V concludes the article by advocating a cautious but nevertheless optimistic reception of appropriate forms of class actions.

I. THE CONCEPT OF LEGAL MODELS

In the social sciences, a model is a simplified, often graphical, representation of the essential process of a particular variable or institution at a single point in time. (1) Legal scholars frequently use models to describe the functions and processes of the legal system. In this scenario, a legal model deliberately captures the most essential components of the legal system in an attempt to account for the majority of outcomes. Most research that deals with legal models, however, fails to explicitly recognize their purposes and inherent limitations. Understanding the following basic qualities of legal models is critical to interpreting and applying them correctly.