Life After Amchem: The Class Struggle Continues, page 5

Life After Amchem (continued)

Page 5

Thus, Amchem has lasting significance, I believe, in three respects, which are the focus of the remainder of this Essay. First, Amchem reinvokes the equitable principles inherent in each class action, as these have evolved in American law. Second, Amchem insists upon due process for class members and judicial assurance of their rights to adequate representation, and implicitly condemns those who exploit the class action procedure, not as a pragmatic means to a just end, but as the instant gratification of self-interest. Finally, in conjunction with Supreme Court action in other recent contexts,²⁸ Amchem has not only granted explicit approval but also implicit endorsement to the migration of state law-based class actions from the federal to the state courts for certification, trial, and settlement.

This migration has in large part been one of necessity, as federal courts have denied certification or decertified classes that in earlier practice would have gone forward in the federal system. Under our federalism, there is no litigation vacuum; these cases have moved to state court. To condemn either this move or the state courts that will certify classes is often an exercise in mere chauvinism. On the basis of my experience in the federal and state systems, I believe that the state courts are often the equal of federal courts in their ability to fairly and efficiently manage, try, and resolve complex class action litigation.

II. THE PRIMACY OF EQUITY

As Amchem reminds us, modern Rule 23 -- operative throughout the federal court system, and adopted by most states -- has its deepest roots in English equity practice.²⁹ Equity as implemented under the class action rules, however, has evolved to embody three distinct, and distinctly American principles: (1) efficiency and economy in judicial administration; (2) universal access to civil justice; and (3) empowerment of small claimants to achieve equality between humans and corporate entities.³⁰ The Court invokes and affirms each of these principles in the Amchem decision as the class action's continuing mandate. As Amchem reminds us:

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NOTES

²⁸ See, e.g., Matsushita Elec. Indus. Co. v. Epstein, 116 S. Ct. 873 (1996) (affirming the jurisdiction of state courts to resolve nationwide class claims, including federal securities fraud claims that could have been litigated only in the federal courts). In a surprising sequel, the Ninth Circuit, on remand, has held that the Supreme Court did not dispositively establish the full faith and credit due the state court judgment. The majority held that the order approving the settlement was subject to collateral attack for failure of the state court to make findings of adequacy or representation. See Epstein v. MCA, Inc., 1997 U.S. App. LEXIS 29678 (9th Cir. Oct. 22, 1997); see also Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) (upholding the propriety of nationwide class certification by state courts in the Rule 23(b)(3) context if due process—notice, opportunity to be heard, and the right to opt out—was preserved).

²⁹ See, e.g., How v. Tenants of Broomsgrove, I Vern. 22, 23 Eng. Rep. 277 (1681); JACK B. WEINSTEIN, INDIVIDUAL JUSTICE IN MASS TORT LITIGATION: THE EFFECT OF CLASS ACTIONS, CONSOLIDATIONS AND OTHER MULTIPARTY DEVICES 125-26 (hereinafter "INDIVIDUAL JUSTICE"); Stephen C. Yeazell, From Group Litigation to Class Action, Part II: Interest, Class, and Representation, 27 UCLA L. Rev. 1067, 1067 (1980).

³⁰ As Judge Weinstein summarizes the evolution of equity principles in mass tort jurisprudence,

[c]ourts of equity traditionally have taken into account the equities—the concrete issues of fact and fairness of the particular situation—in fashioning remedies. In the mass tort context, these include (1) fairly and expeditiously compensating numerous victims and (2) deterring wrongful conduct where possible while (3) preventing overdeterrence in mass torts from shutting down industry or removing needed products from the market, (4) keeping the courts from becoming paralyzed by tens or even hundreds of thousands of repetitive personal injury cases, and (5) reducing transactional costs of compensation.

INDIVIDUAL JUSTICE, at 125.