Class actions, litigant autonomy, and the foundations of procedural due process

California Law Review

Volumn 95, Issue SPEC. ISS., 2007, Pages 1573-1618

  Redish, Martin H ^a   Larsen, Nathan D ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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EID: 38849196868     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (209)

1. The thirteenth and fourteenth questions of the October 5, 2004 vice-presidential debate between John Edwards and Dick Cheney regarded the issues of tort reform and Edwards' career as a trial attorney. See Nathaniel L. Bach, Trial Lawyer on the Ticket: Electoral Rhetoric and the Depiction of Lawyers in the 2004 Presidential Campaign, 19 GEO. J. LEGAL ETHICS 317 (2006).
2. U.S. CONST, amend. V, cl. 4; amend. XIV, §1, cl. 3.
3. See, e.g., Hansberry v. Lee, 311 U.S. 32 (1940);
4. see discussion infra at Section II.B.2..
5. See, e.g., Richard A. Nagareda, Administering Adequacy in Class Representation, 82 TEX. L. REV. 287 (2003).
6. Another commentator has also argued that for the most part, mandatory class actions are due process violations. However, at no point does he recognize or explore either the foundational nature of the autonomy factor or its relevance to the due process analysis as applied to class actions. See Steven T.O. Cottreau, Note, The Due Process Right to Opt Out of Class Actions, 73 N.Y.U. L. REV. 480 (1998).
7. See discussion infra at Section I.B.; I.C.
8. See discussion infra at Section I.A.
9. In this sense, we seek to distinguish ourselves from a critique of class actions grounded in a more sweeping form of libertarianism. See generally NATURAL RIGHTS LIBERALISM FROM LOCKE TO NOZICK (Ellen Frankel Paul, Fred D. Miller & Jeffrey Paul eds., 2004).
10. See discussion infra at Section I.C.
11. See discussion infra at Section I.D.
12. FED. R. CIV. P. 23(b)(1)(A), (b)(1)(B), (b)(2). See discussion infra at Section II.B.3.
13. See discussion infra at Section II.C.2. It is thought by some that in Phillips Petroleum Co. v. Shutts, All U.S. 797 (1985), the Court held all mandatory class actions to violate due process.
14. See, e.g., Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir. 1992);
15. cert. granted, 510 U.S. 810 (1993);
16. cert. dismissed as improvidently granted, 511 U.S. 117 (1994). However, this is a clear misreading of Shutts.
17. See discussion infra at 97.
18. FED. R. CIV. P. 23(e);
19. see discussion infra at Section II.D.
20. 424 U.S. 319 (1976).
21. Id. at 334-35.
22. The Court found that the social security claimant's interest was minimal, because a relatively small amount of money was involved. Id. at 340-41.
23. 501 U.S. 1 (1991).
24. Id. at 10-11.
25. Id. at 10 (quoting Mathews, 424 U.S. at 334 (quoting Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961))).
26. Doehr, 501 U.S. at 10.
27. Id. at 13.
28. Id. at 16.
29. Id.
30. Jerry Mashaw, The Supreme Court 's Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value, 44 U. CHI. L. REV. 28 (1976);
31. Martin H. Redish & Lawrence C. Marshall, Adjudicatory Independence and the Value of Procedural Due Process, 95 YALE L.J. 455 (1986).
32. Mashaw, supra note 24, at 899.
33. Id..
34. See also Redish & Marshall, supra note 24, at 481-83.
35. Mashaw, supra note 24, at 899.
36. We refer to this value as the "presumptive" foundation, because we fully acknowledge that, under sufficiently compelling circumstances, this presumption of an individual's control of the protection of her own interests may be rebutted. See discussion infra at Section II.D.
37. See Martin H. Redish, Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329 (1988).
38. See also discussion infra at Section I.C.
39. Democratic theorists have differed over the role that the individual should play in government, beyond the selection of governing officials. The most extreme of the theorists in support of a narrow role was Joseph Schumpeter. See generally JOSEPH SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY (1942).
40. On the general issue of paternalism, see David L. Shapiro, Courts, Legislatures and Paternalism, 74 VA. L. REV. 519 (1988).
41. See Lea Brilmeyer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy"Requirement, 93 HARV. L. REV. 297 (1979).
42. See, e.g., Hawaii v. Standard Oil of Cal., 405 U.S. 251, 258 (1972);
43. Missouri v. Illinois, 180 U.S. 208 (1901).
44. See, e.g., Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) (statutory provision for appointment of guardian to represent interests of beneficiaries of common trust fund).
45. Powell v. Alabama, 287 U.S. 45 (1932) ("It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice").
46. But see United States v. Walters, 309 F.3d 589, 592 (9th Cir. 2002) ("The Sixth Amendment grants criminal defendants a qualified constitutional right to hire counsel of their own choice but the right is qualified in that it may be abridged to serve some 'compelling purpose . . . .'") (quoting United States v. D'Amore, 56 F.3d 1202, 1204 (9th Cir. 1999)).
47. See also United States v. Panzardi-Alvarez, 816 F.2d 813, 816 (1st Cir. 1987) ("A criminal defendant's exercise of this right cannot unduly hinder the fair, efficient and orderly administration of justice.").
48. The right to defend oneself pro se has also been recognized in the courts. See, e.g., Faretta v. California: It is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts. . . . The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of "that respect for the individual which is the lifeblood of the law."
49. U.S. 806, 834 (1975) (citation omitted).
50. See Frank I. Michelman, Law's Republic, 97 YALE L.J. 1493, 1533-36 (1988).
51. For a more detailed exploration of the grounding of the commitment to individual autonomy in liberal political theory, see generally Martin H. Redish & Clifford Berlow, The Class Action as Political Theory, 86 WASH. U. L. REV. (2008) (forthcoming).
52. ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM 9 (1960) ("So far . . . as our own affairs are concerned, we refuse to submit to alien control."). We fully recognize, of course, that in a constitutional democracy certain choices are excluded from simple majoritarian choice. Unless the concept of accountable government is to be lost completely, however, the bulk of decisions must be made by those responsive to public will.
53. The Supreme Court has stated that "there is no such thing as a false idea." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).
54. See, e.g., Wooley v. Maynard, 430 U.S. 705 (1977) (Jehovah's witnesses may not be required to display state slogan, "Live Free or Die" on their license plate).
55. By "process-based" autonomy we refer to an individual's autonomous right to protect his interests through participation in the governmental process. This is to be contrasted with a right to exercise total control over all aspects of one's life - a power that is infeasible, even in a democracy. The concept may also be described as "meta-autonomy," because it refers to the individual's autonomy to make choices as to how he participates in the processes of self-government.
56. Of course, if the very same unit of government that was prosecuting the defendant were permitted to choose his representative and/or direct the nature of his defense, additional constitutional problems would develop. However, the intuitive problem we have with this course of action is present, even if we posit that the branch or level of government making the choices as to defense strategy is wholly distinct from the branch or level involved in the prosecution.
57. In Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), the Court assumed that a plaintiffs property rights in her chose in action is somehow more diluted than is a defendant's constitutionally protected interest in avoiding judgment.
58. Id. at 812.. Like much in the Shutts decision, however, this conclusion is wholly unsupported with logic or reason, and is surely not intuitive: Both plaintiffs and defendants have a great deal to lose or gain as the result of litigation. Moreover, this suggestion of a gradation in the relative interests of plaintiffs and defendants is inconsistent with clearly established prior Court doctrine that the Shutts Court in no way purported to affect.
59. See Schlagenhauf v. Holder, 379 U.S. 104 (1964). In any event, as a bottom line matter, it is clear that the Court in Shutts recognized in plaintiff claims a constitutionally protected interest, sufficient to trigger the due process guarantee.
60. Martin H. Redish, The Adversary System, Democratic Theory, and the Constitutional Role of Self-interest: The Tobacco Wars, 1953-1971, 51 DEPAUL L. REV. 359, 366 (2001).
61. See discussion supra at Section I.A.1.
62. See discussion supra at Section I.C.
63. For a more detailed exploration of this reverse engineering process in the context of the adversary system, see generally Redish, supra note 43.
64. It is true, of course, that when government seeks, for example, to protect consumer interests through administrative or criminal enforcement of consumer protection laws, protected individuals do not possess a due process right to control the litigation. See discussion supra at Section II.B. However, in such cases the individuals do not have constitutionally protected property interests - a necessary trigger to the guarantees of procedural due process - at stake.
65. See discussion infra at Section II.B.1.a.
66. See FED. R. CIV. P. 13(a) (providing for compulsory counterclaims where a counterclaim arises out of same transaction or occurrence as the primary claim).
67. See the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202.
68. Purists might suggest that attempting to mix utilitarianism, which traditionally cared not at all for the interests of the individual, with a formalistic commitment to individualism is equivalent to incongruously mixing oil and water. However, from a real world perspective there exists no a priori reason why recognition of the value of individual autonomy cannot be tempered by pragmatic concerns. See generally Redish & Berlow, supra note 36.
69. Ortiz v. Fibreboard, 527 U.S. 815, 845, 847-48 (2001);
70. see discussion infra at Section II.B.3.
71. See discussion infra at Section II.B.2.
72. See, e.g., Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 874 (1984).
73. FED. R. CIV. P. 23(a)(1)-(4).
74. FED. R. CIV. P. 23(b)(1)-(3).
75. FED. R. CIV. P. 23(c); (d).
76. FED. R. CIV. P. 23(c)(3).
77. FED. R. CIV. P. 23(c)(2)(B).
78. FED. R. CIV. P. 23(d)(2).
79. See discussion infra at Section II.B.2. It should be noted that while after Ortiz the scope of Rule 23(b)(1)(B) class actions has been limited, this category of class actions is still employed.
80. See, e.g., Devlin v. Scardelletti, 536 U.S. 1 (2002).
81. See U.S. CONST, amend XIV, § 1; U.S. CONST, amend. V.
82. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 429 (1982) ("The Court traditionally has held that the Due Process Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting to redress grievances.");
83. Standard Oil Co. v. New Jersey, 341 U.S. 428, 439 (1951) ("There is no fiction ... in the fact that choses in action . . . held by the corporation, are property.");
84. Sentry Ins. v. Sky Management, Inc., 34 F. Supp. 2d 900 (D. N.J. 1999) ("A chose in action is an item of intangible personal property.");
85. Commonwealth v. Ky. Distilleries & Warehouse Co., 136 S.W. 1032, 1036 (Ky. Ct. App. 1911) ("The term 'property' . . . include[s] . . . choses in action.");
86. Gibbes v. Nat'l Hosp. Serv., 24 S.E.2d 513, 515 (S.C. 1943) ("[I]t said that the word property, is of very extensive meaning, and includes choses in action.") (internal citations omitted);
87. Hutton v. Autoridad Sobre Hogares De La Capital, 78 F. Supp. 988, 994 (D. P.R. 1948) ("A vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference, and whether it springs from contract or from the principles of the common law, the legislature may not take it away.") (internal citations omitted);
88. Hailing v. Indus. Comm. of Utah, 263 P. 78, 81 (Utah 1927) (not allowing a widow to bring cause of action against husband's employer for wrongful death, even though husband had unsuccessfully brought wrongful death cause of action, would, given Utah's Constitutional scheme, deprive "applicant of property without due process of law.");
89. Mark Weber, Preclusion and Procedural Due Process in Rule 23(b)(2) Class Actions, 21 U. MICH. J.L. REFORM 347 (1988) (making the argument that there is an individual property right in a cause of action, including those causes of action for injunctive or declaratory relief that the possessor has not personally filed in court).
90. Issacharoff characterizes the discussion of property rights in a chose as a "return to an older, more formal conception of a legal claim." Samuel Issacharoff, Preclusion, Due Process, and the Right to Opt Out of Class Actions, 11 NOTRE DAME L. REV. 1057, 1058 (2002). Although this pejorative characterization is probably meant to imply that the notion of a chose as property is outdated, federal and state courts continue to consistently and explicitly recognize a property right in a cause of action.
91. See cases cited in note 61, supra. It is worth noting that the modem trend has been to recognize new property rights for which due process rights attach, rather than to reject traditional definitions of property.
92. See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (giving procedural due process protections to welfare recipients).
93. See generally Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964). Similarly, an assertable defense is also a form of property protected by the Due Process Clause.
94. See Baltimore & O.S.W. Ry. Co. v. Read, 158 Ind. 25, 62 N.E. 488, 490 (1902) ("The law recognizes that a vested right of defense to an action is, in a sense, property, - as much so as is a vested right of action, - and is equally protected as is the latter against an attempt of the legislature to destroy or take it away.");
95. Logan, 455 U.S. at 429.
96. See Best Practices for Gatekeepers Emerging Communications, Inc. Shareholders Litigation Opinion, in the Court of Chancery of the State of Delaware in and for New Castle County, 1530 PLI/CORP 167, 249-50 (2006) ("[I]t is established Delaware law that choses in action that survive the death of the victim are validly assignable").
97. Issacharoff, supra note 61.
98. Even proponents of such a view probably agree that an individual cannot be bound to a judgment unless he was adequately represented by the class proceeding. See discussion infra at Section II.B.2.
99. Issacharoff, supra note 61, at 1060.
100. To a similar effect, see David L. Shapiro, Class Actions: The Class as Party and Client, 73 NOTRE DAME L. REV. 913, 917 (1998) ("[T]he notion of class as entity should prevail over more individually oriented notions of aggregate litigation.").
101. See also Shapiro, supra note 65.
102. Id.
103. Id. at 921.
104. Id.
105. Id. at 1058-61.
106. Id. at 1060.
107. Shapiro, supra note 65, at 1058-1059. At least as a technical matter of collateral estoppel, however, rejection of an injunction does not decide future cases.
108. See, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954).
109. FED. R. CIV. P. 24(b) (permissive intervention).
110. Certification under Rule 23(b)(2) is appropriate where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." FED. R. CIV. P. 23(b)(2). Illustrative of class actions appropriately certified under Rule 23(b)(2) "are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration." 39 F.R.D. 69, 102 (1966) (listing numerous appellate court decisions finding a proper class action in school desegregation and public accommodation cases).
111. The same holds true if there are fifty children but only one decides to sue. It does not necessarily follow, of course, that due process will always require that substantively pristine rights be enforced free from limitation; due process usually requires some form of utilitarian calculus. However, when a due process inquiry is triggered, a compelling interest must be established to justify impairment of the individual's rights. By somehow recharacterizing what are unambiguously individually held rights as entity-held rights, Issacharoff and Shapiro are able to circumvent this inquiry.
112. Shapiro, supra note 65, at 1059.
113. Such suits typically fall under Rule 23(b)(1)(B), at least when the claims are made into an identifiable fund. Traditional limited fund class actions "include claimants to trust assets, a bank account, insurance proceeds, company assets in a liquidation sale, proceeds of a ship sale in a maritime accident suit, and others." Ortiz v. Fibreboard Corp., 527 U.S. 815, 834 (1999).
114. See also FED. R. CIV. P. 23 ADV. COMM. NOTES 697;
115. Dickinson v. Burnham, 197 F.2d 973 (2nd Cir.), cert, denied, 344 U.S. 875 (1952).
116. Id.
117. See, FED. R. CIV. P. 23(b)(1)(B) and Advisory Committee's Note to the 1966 Amendment.
118. Id.
119. Id.
120. See, e.g., In re Mex. Money Transfer Litigation, 267 F.3d 743 (7th Cir. 2001) (approving coupon settlement in case against wire transfer companies alleging RICO and state-antifraud violations).
121. Rinaldi v. Iomega Corp., 1999 WL 1442014, 41 UCC Rep.Serv.2d 1143 (Del. Super. Sept. 03, 1999). A zipdrive is a portable inexpensive computer disk drive which permits users to save large amounts of electronic information on a relatively small magnetic disk. For more information, see the Iomega corporate website at http://www.iomega.com/direct/products/family.jsp? FOLDER%3C%3Efolder_id=26891285&ASSORTMENT%3C%3East_id= 63191&bmUID= 1143058630573.
122. Rinaldi v. Iomega Corp., 1999 WL 1442014, 41 UCC Rep.Serv.2d 1143 (Del. Super. Sept. 03, 1999).
123. While the Rules Enabling Act vests in the Supreme Court the power to prescribe procedural rules, the power is limited by the Act's substantive limitations, which prohibit procedural rules that trammel on existing substantive rights or that otherwise approximate substantive law making. See Rules Enabling Act, 28 U.S.C. § 2072.
124. See also Stephen B. Burbank, The Rules Enabling Act Of 1934, 130 U. PA. L. REV. 1015, 1114 (1982) ("[T]he history [of the REA] suggests a purpose to foreclose the creation in court rules of rights that would approximate the substantive law in their effect on person or property.").
125. For a more detailed exploration of the effects of this approach on democratic theory, see generally Martin H. Redish, Class Actions and the Democratic Difficulty: Rethinking the Intersection of Private Litigation and Public Goals, 2003 U. CHI. L. FORUM 71.
126. See Rules Enabling Act, 28 U.S.C. § 2072;
127. Redish supra note 87.
128. We have nevertheless given the theory so much attention because it clearly constitutes the most detailed theoretical argument against litigant autonomy.
129. In one instance, the Supreme Court, in a footnote, cryptically suggested a due process dichotomy between damage and injunctive claims. Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). However, it is our belief that the decision was intended to be confined to the highly limited due process context of constitutional limits on personal jurisdiction. See discussion infra at Section II.B.3.
130. See, e.g., Hansberry v. Lee, 311 U.S. 32 (1940);
131. Stephenson v. Dow Chemical Co., 273 F.3d 249 (2nd Cir. 2001), aff' d by equally divided court, 539 U.S. 111 (2003).
132. See also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997) (recognizing importance of avoiding conflict between interests of class representatives and absent class members).
133. 311 U.S. 32 (1940).
134. FED. R. CIV. P. 23(a)(4).
135. Proposed Amendments to Rules of Civil Procedure of the United States District Courts, 39 F.R.D. 73, 107 (Advisory Committee Note to Rule 23(c)(2)).
136. See discussion supra at Section I.C.
137. 7AA CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE, CIVIL §1786 (3d ed. 2005).
138. 472 U.S. 797 (1985).
139. Id. at 812.
140. Brown v. Ticor Title Ins. Co., 982 F.2d 386, 392 (9th Cir. 1992), cert, granted, 510 U.S. 810 (1993), cert. dismissed as improvidently granted, 511 U.S. 117 (1994).
141. See generally Arthur R. Miller & David Crump, Jurisdiction and Choice of Law in Multistate Class Actions After Phillips Petroleum Co. v. Shutts, 96 YALE L.J. 1 (1986).
142. FED. R. CIV. P. 12(b)(1).
143. 527 U.S. 815 (1999).
144. Id. at 846.
145. Note that if Shutts had, in fact, found all mandatory damage class actions unconstitutional, the narrow construction given to Rule 23(b)(1)(B) in Ortiz would have been mooted.
146. See, e.g., Nat'l Ass'n for Advancement of Colored People v. Button, 371 U.S. 415 (1963).
147. Hansberry v. Lee, 311 U.S. 32 (1940).
148. See, e.g., Nat'l Ass'n for Advancement of Colored People v. Button, 311 U.S. 32 (1940).
149. See, e.g., Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977);
150. Democratic Party of U.S. v. Wis. ex rel. La Follette, 450 U.S. 107 (1981).
151. See Redish, supra note 87, at 116-18.
152. For a detailed examination of the First Amendment right of non-association, see generally Martin H. Redish & Christopher McFadden, HUAC, the Hollywood Ten, and the First Amendment Right of Non-Association, 85 MINN. L. REV. 1669 (2001).
153. See discussion infra at Section ILD.
154. 527 U.S. at 838-39.
155. See also discussion supra at Section II.B.3.
156. See, e.g., In re Enron Sec., Derivative & ERISA Litig., 228 F.R.D. 541 (S.D. Tex. 2005);
157. In re Syncor ERISA Litig., 227 F.R.D. 338 (C.D. Cal. 2005);
158. Thomas v. Smithkline Beecham Corp., 201 F.R.D. 386 (E.D. Pa. 2001).
159. Proposed Amendments to Rules of Civil Procedure of the United States District Courts, 39 F.R.D. 73, 102 (Advisory Committee Note to Rule 23(b)(2)).
160. See MARTIN H. REDISH, THE LOGIC OF PERSECUTION 147-48 (2005).
161. See generally IMMANUEL KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS (Lewis White Beck trans., Bobbs-Merrill 1959) (1785). In a similar vein, a respected modern democratic theorist has argued that liberal democracy "assumes that the individual will is the cause of all actions, individual and collective and . . . ascribes decisive epistemic and hence moral authority to the individual over his actions, on the grounds that he has privileged access to the contents of his own mind."
162. IAN SHAPIRO, THE EVOLUTION OF RIGHTS IN LIBERAL THEORY 275 (1986). Democratic theory, Shapiro asserts, further assumes that "individual consent . . . [is] vital to the whole idea of political activity."
163. Id.
164. See discussion supra at 83.
165. See discussion supra at Section I.A.
166. See Section II.A, supra.
167. 255 U.S. 356 (1921).
168. Proposed Amendments to Rules of Civil Procedure of the United States District Courts, 39 F.R.D. 73, 100 (Advisory Committee Note to Rule 23(b)(1)).
169. W. Union Tel. Co. v. Pa., 368 U.S. 71 (1961) (state denied due process when it escheated unclaimed property held by Western Union because the state could not guarantee that no other state would make a conflicting and duplicative escheat claim).
170. 527 U.S. at 838-40.
171. Id.
172. This would be due to the fact that parties who have not had their day in court cannot legally be bound by either res judicata or collateral estoppel.
173. Proposed Amendments to Rules of Civil Procedure of the United States District Courts, 39 F.R.D. 73, 100-01 (Advisory Committee Note to Rule 23(b)(1)(B): "This clause takes in situations where the judgment in a nonclass action by or against an individual member of the class, while not technically concluding the other members, might do so as a practical matter.")
174. State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523 (1967).
175. In the case of a class action, where there are potentially countless claimants, it would be impractical to delay enforcement of judgment until all claims have come to judgment. It would therefore make more sense to set up some type of time limit on awards as a control device.
176. See discussion supra at Section II.B.2.
177. Even though neither res judicata nor collateral estoppel would apply to the class member who had removed herself from the class, the problem of same situation stare decisis would remain a very significant concern. Moreover, given the modern demise of the mutuality of estoppel doctrine, it is conceivable that an absent class member who chose to opt out of the class could nevertheless invoke collateral estoppel against the party opposing the class in a subsequent individual proceeding. However, the Supreme Court has recognized as a possible limitation on the modern breach of mutuality those situations in which the litigant not participating in the first suit has consciously chosen to "sit on the sidelines." Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 331-32 (1979).
178. At this point, we take no position on the exact manner in which a class member would be permitted to withdraw. See discussion infra at Section II.D.
179. FED. R. CIV. P. 23(d)(2).
180. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process requires the best notice practicable under the circumstances). In the case of far-reaching (b)(2) classes, of course, anything approaching individual notice would be impossible. That does not mean, however, that, under Mullane, notice reasonably designed to publicize the existence of the class could not be required.
181. Michael A. Perino, Class Action Chaos? The Theory of the Core and an Analysis of Opt-Out Rights in Mass Tort Class Actions, 46 EMORY L.J. 85, 143-44 (1997).
182. David Rosenberg, Adding a Second Opt-Out to Rule 23(b)(3) Class Actions: Cost Without Benefit, 2003 U. CHI. LEGAL F. 19, 23 (2003).
183. 28 U.S.C. §2072 (prohibiting Federal Rules from modifying, enlarging or abridging substantive rights).
184. See generally Martin H. Redish & Christopher R. Pudelski, Legislative Deception, Separation of Powers, and the Democratic Process: Harnessing the Political Theory of United States v. Klein, 100 NW. U. L. REV. 437 (2006).
185. Richard A. Epstein, Class Actions: Aggregation, Amplification, and Distortion, 2003 U. CHI. LEGAL F. 475.
186. See generally Redish, supra note 87.
187. Ohio Bell Tel. Co. v. Pub. Utilities Comm'n of Ohio, 301 U.S. 292, 307 (1937) ("We do not presume acquiescence in the loss of fundamental rights.").
188. 407 U.S. 67, 95 (1972).
189. Edelman v. Jordan, 415 U.S. 651, 673 (1974).
190. See, e.g., United States v. Moore, 340 U.S. 616 (1951).
191. See, e.g., Nat'l Equip. Rental v. Szukhent, 375 U.S. 311 (1964).
192. See, e.g., Carnival Cruise Line v. Shute, 499 U.S. 585 (1991).
193. FED. R. CIV. P. 12(h)(1).
194. This is especially true in the context of class action opt-out. Professors Eisenberg and Miller have noted, based on their empirical study, that "[o]pt-outs from class participation and objections to class resolutions are rare: on average, less than 1 percent of class members object to classwide settlements." Theodore Eisenberg & Geoffrey Miller, The Role of Opt-Outs and Objectors in Class Action Litigation: Theoretical and Empirical Issues, 57 VAND. L. REV. 1529, 1532 (2004).
195. These "trivially small percentages" of opt-outs, id. at 1566, arguably demonstrate absent class members' uncertainty or ignorance about their opt-out rights.
196. See also Thomas E. Willging et al., An Empirical Analysis of Rule 23 to Address the Rulemaking Challenges, 71 N.Y.U. L. REV. 74, 134 (1996) ("Many, perhaps most, of the notices [in federal court class actions] present technical information in legal jargon. Our impression is that most notices are not comprehensible to the lay reader.").
197. See discussion supra at Section I.C.
198. Issacharoff, supra note 61.
199. See also discussion supra at 83.
200. For a detailed exploration of the nature and basis of this presumption, see Redish & Berlow, supra note 36.
201. See Eisenberg & Miller, supra note 146, at 1538-39, for a catalogue of the existing scholarship.
202. See id. at 1538-40 nn.34-48.
203. The only exceptions appear to be Richard A. Epstein, Class Actions: Aggregation, Amplification, and Distortion, 2003 U. CHI. LEGAL F. 475, 510 ("the control of one's own litigation cannot be regarded as a small detail within the overall scheme of civil procedure.")
204. and John E. Kennedy, Class Actions: The Right to Opt Out, 25 ARIZ. L. REV. 3, 79 (1983) (recognizing the right to control one's own litigation). However, neither of these sources provides an extensive theoretical or constitutional analysis of the litigant autonomy right as an outgrowth of the democratic process, and neither recognizes that recognition of this constitutional interest necessarily implies the constitutional inadequacy of opt-out procedures. Instead, both view opt-out as satisfying the constitutional interest in litigant autonomy.
205. See discussion supra at I.D.
206. See discussion supra at I.D.
207. See discussion supra at II.C.
208. See discussion supra at II. A.
209. While this may be true as a matter of procedural due process, whether opt out is permissible as a matter of macro democratic theory is beyond the scope of this Article. For a discussion of that issue, see generally Redish, supra note 87.