Two views of the class action

Fordham Law Review

Volumn 79, Issue 5, 2011, Pages 1939-1963

  Lahav, Alexandra D ^a  

^a UNIVERSITY OF CONNECTICUT   (United States)

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EID: 79959203253     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (202)

1. The less generous might call the lawyer-entrepreneur a "bounty hunter." See John C. Coffee, Jr., Rescuing the Private Attorney General: Why the Model of the Lawyer As Bounty Hunter Is Not Working, 42 MD. L. REV. 215, 218 (1983).
2. We might also fruitfully consider the role of the judge, but that is beyond the scope of this essay. For a few different views of the role of the judge in complex litigation, see generally, Martha L. Minow, Judge for the Situation: Judge Jack Weinstein, Creator of Temporary Administrative Agencies, 97 COLUM. L. REV. 2010 (1997);
3. Jonathan T. Molot, An Old Judicial Role for a New Litigation Era, 113 YALE L. J. 27 (2003);
4. Judith Resnik, Courts: In and Out of Sight, Site and Cite, 53 VILL. L. REV. 771 (2008);
5. Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374 (1982).
6. Much has been written on the adequacy of representation requirement. See, e.g., Samuel Issacharoff, Governance and Legitimacy in the Law of Class Actions, 1999 SUP. CR. REV. 337, 354 (discussing the U. S. Supreme Court's approach to adequacy of representation and stating that "[t]o the extent that the Rules direct courts to focus on the named class parties, they provide what is at best a distraction from the real source of legitimacy in class actions: the incentives for faithful representation by class counsel").
7. For a recent debate on the issue of adequacy, compare Elizabeth Chamblee Burch, Procedural Adequacy, 88 TEX. L. REV. SEE ALSO 55, 57-59 (2010) (critiquing the view of class counsel and class representatives as purely self-interested)
8. with Jay Tidmarsh, Rethinking Adequacy of Representation, 87 TEX. L. REV. 1137, 1176 (2009) (arguing that the standard for adequacy of representation on collateral attack ought to be that representation "is adequate if and only if the actions of the class representative and class counsel... [leave] that class member in no worse a position than that class member would have enjoyed had [that member] retained control of her own case").
9. 130 S. Ct. 1431 (2010).
10. Id. at 1436.
11. Id.
12. Id.
13. Id. at 1436-37.
14. Id.
15. Id. at 1437 n. 3.
16. Id. at 1436.
17. 28 U. S. C. § 1332 (d) (2006). The statute requires the federal court to remand the case to state court when more than two-thirds of the class members are citizens of the same state as the primary defendant and makes remand discretionary when between one-third and two-thirds of the class members are citizens of the same state as the primary defendant.
18. Id. § 1332 (d) (3), (4);
19. see also Shady Grove, 130 S. Ct. at 1437.
20. N. Y. C. P. L. R. 901 (b) (McKinney 2010);
21. Shady Grove, 130 S. Ct. at 1437.
22. Shady Grove, 130 S. Ct. at 1437.
23. Id.
24. Id. at 1448.
25. Id. at 1443.
26. Id.
27. Id.
28. Id. at 1443.
29. Id.
30. Id.
31. Id. (alteration in original)
32. (quoting Miss. Publ'g Corp. v. Murphree, 326 U. S. 438, 445 (1946)).
33. Id. at 1460 (Ginsburg, J., dissenting).
34. Rules Enabling Act of 1934, 28 U. S. C. § 2072 (2006). The dissent instead preferred to argue that there was no direct conflict between the federal and the New York rules and therefore the New York rule should govern.
35. Shady Grove, 130 S. Ct. at 1460. For an argument that the class action rule violates the Rules Enabling Act
36. see generally MARTIN H. REDISH, WHOLESALE JUSTICE: CONSTITUTIONAL DEMOCRACY AND THE PROBLEM OF THE CLASS ACTION LAWSUIT (2009). For a different view
37. see Stephen B. Burbank & Tobias Barrington Wolff, Redeeming the Missed Opportunities of Shady Grove, 159 U. PA. L. REV. 17 (2010) (advocating a radical reinterpretation of the Rules Enabling Act);
38. Alexandra Lahav, Are Class Actions Unconstitutional?, 109 MICH. L. REV. 993 (2011) (reviewing Redish, supra).
39. See FED. R. CIV. P. 23 (g) (stating that the court picks the lawyer);
40. FED. R. CIV. P. 23 (h) (stating that the court determines compensation);
41. Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 590 (3d Cir. 1999) (holding that class counsel need not be disqualified when the class representative, who had hired the lawyer, objects to the settlement).
42. But see 15 U. S. C. § 77 z-l (a) (3) (B) (iii) (I) (bb), 78u-4 (a) (3) (B) (2006) (requiring that entity with largest financial stake in the relief sought be appointed lead plaintiff and choose class counsel).
43. Under Rule 23 (e) (5), the court must approve the withdrawal of objections, but this does not mean that the terms of a side settlement must be disclosed, and it is not clear under what circumstances the terms of such side settlements would be discoverable.
44. See Duhaime v. John Hancock Mut. Life Ins. Co., 183 F.3d 1, 6-7 (1st Cir. 1999) (refusing class member post-judgment discovery of side settlement).
45. See Devlin v. Scardelleti, 536 U. S. 1, 15-16 (2003) (Scalia, J., dissenting). Devlin held that objecting class members need not intervene in order to appeal.
46. Id. at 14 (majority opinion);
47. see also ALBA CONTE & HERBERT B. NEWBERG, 5 NEWBERG ON CLASS ACTIONS § 16:1 (4th ed. 2002) ("Absent class members should not be required to participate actively during the pretrial and trial stages of the litigation, since such a requirement would impose an affirmative obligation, not expressly required by Rule 23 and would frustrate the rule's goals.") Treatises note some disagreement over whether class members are parties for purposes of discovery or counterclaims.
48. See Conte & Newberg, supra;
49. cf. Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 810 (1985) (noting that absent class members "are almost never subject to counterclaims or cross-claims, or liability for fees or costs."). The disagreement largely comes up in the context of defendants wanting to depose absent class members, not in the context of absent class members wishing to control the discovery process.
50. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U. S. 546, 549 (2005).
51. See Phillips Petroleum, 472 U. S. at 810.
52. Conte & Newberg, supra note 28, § 15:19.
53. See Stephenson v. Dow Chem. Co., 273 F.3d 249, 261 (2d Cir. 2001)
54. aff' d in part and vacated in part, 539 U. S. 111, 112 (2003) (affirming with respect to Stephenson, and vacating and remanding with respect to other plaintiffs).
55. Devlin, 536 U. S. at 1.
56. Stephenson, 273 F.3d at 261.
57. Devlin, 536 U. S. at 10 (observing that the statute of limitations is tolled for absent class members);
58. see also FED. R. CRV. P. 23 (b) (3) (requiring that absent class members be permitted to opt out of money damages class actions);
59. FED. R. CIV. P. 23 (e) (requiring fairness hearings before approval of settlements in class actions).
60. 166 F.3d 581 (3d Cir. 1999).
61. See id. at 583.
62. See id.
63. See id.
64. See id.
65. Id. at 588.
66. MODEL RULES OF PROF' L CONDUCT R. 1.9 (a) (2011).
67. Lazy Oil, 166 F.3d at 591.
68. Id. at 589-90
69. (quoting In re "Agent Orange" Prod. Liab. Litig., 800 F.2d 14, 18-19 (2d Cir. 1986)) ("[C]lass counsel may continue to represent the remaining class representatives and the class, as long as the interest of the class in continued representation by experienced counsel is not outweighed by the actual prejudice to the objectors of being opposed by their former counsel.").
70. Id.
71. The entity theory seems to have been proposed initially by Edward H. Cooper. See Edward H. Cooper, Rule 23: Challenges to the Rulemaking Process, 71 N. Y. U. L. REV. 13, 16 (1996);
72. see also Samuel Issacharoff, Preclusion, Due Process, and the Right To Opt Out of Class Actions, 77 NOTRE DAME L. REV. 1057 (2002);
73. Nancy J. Moore, "Who Should Regulate Class Action Lawyers?", 2003 U. ILL. L. REV. 1477;
74. David L. Shapiro, Class Actions: The Class As Party and Client, 73 NOTRE DAME L. REV. 913 (1998).
75. See Issacharoff, supra note 3 at 338 ("[I]t is useful to think of the class action mechanism as fundamentally a centralizing device designed to accomplish some of the same functions as performed by the state, particularly in those situations in which the state has not or cannot perform its regulatory function, or it would be inefficient for the state to undertake such regulation directly.").
76. As John C. Coffee, Jr. explains, "From a governance perspective, a class action is an organization, often with thousands of members, that persists for an indefinite period, usually several years from the case's filing to its resolution. " John C. Coffee, Jr., Litigation Governance: Taking Accountability Seriously, 110 COLUM. L. REV. 288, 306 (2010). My own work has been consistent with Coffee's approach;
77. see also Alexandra D. Lahav, Fundamental Principles for Class Action Governance, 37 IND. L. REV. 65 (2003).
78. Issacharoff, supra note 46, at 1060 (citing Shapiro, supra note 46, at 917).
79. This view was famously advocated by Judges Henry J. Friendly and Richard A. Posner. See HENRY J. FRIENDLY, FEDERAL JURISDICTION: A GENERAL VIEW 118-20 (1973);
80. In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1299-300 (7th Cir. 1995).
81. For critiques of the blackmail argument, see Alexandra D. Lahav, The Curse of Bigness and the Optimal Size of Class Actions, 63 VAND. L. REV. EN BANC 117 (2010), http://www.vanderbiltlawreview.org/content/articles/2010/ll/Lahav- The-Curse-of-Bigness-63-Vand.-L.-Rev.-En-Banc-117-20101.pdf;
82. Charles Silver, "We're Scared to Death": Class Certification and Blackmail, 78 N. Y. U. L. REV. 1357, 1386-90 (2003).
83. Amchem Prods. Inc. v. Windsor, 521 U. S. 591, 625-27 (1997) (stating that class representative must represent particular interests of class members);
84. see FED. R. CIV. P. 23 (g) (requiring the court to appoint class counsel);
85. FED. R. CIV. P. 23 (c) (5) (treating subclasses as a class under the rule).
86. See FED. R. CIV. P. 23 (g) (4) ("Class counsel must fairly and adequately represent the interests of the class.").
87. See Jean Wegman Burns, Standing and Mootness in Class Actions: A Search for Consistency, 22 U. C. DAVIS L. REV. 1239, 1265 n. 118 (1989) (citations omitted).
88. See MODEL RULES OF PROF'L CONDUCT R. 1.7 cmt. [25] (2011);
89. id. R. 1.8 cmt. [13].
90. Id. R. 1.8 cmt. [13].
91. Conte & Newberg, supra note 28, § 15:19.
92. MODEL RULES OF PROF'L CONDUCT R. 1.8 cmt. [13].
93. See, e.g., id R. 1.13 (governing relationship between counsel and corporation);
94. see also Moore, supra note 46 (arguing for specialized professional ethics rules governing the lawyer-client relationship in class actions).
95. See John C. Coffee, Jr., The Regulation of Entrepreneurial Litigation: Balancing Fairness and Efficiency in the Large Class Action, 54 U. CHI. L. REV. 877, 888-89 (1987).
96. See William B. Rubenstein, On What a "Private Attorney General" Is-And Why It Matters, 57 VAND. L. REV. 2129 (2004).
97. Kenneth J. Arrow, The Economics of Agency, in PRINCIPALS AND AGENTS: THE STRUCTURE OF BUSINESS 37, 37-51 (John W. Pratt & Richard J. Zeckhauser eds., 1985).
98. See FED. R. CIV. P. 23 (g) (1) (appointment of class counsel by the court).
99. Lucian A. Bebchuk, The Myth of the Shareholder Franchise, 93 VA. L. REV. 675, 676 (2007).
100. See, e.g., Lucian A. Bebchuk, Martijn Cremers & Urs Peyer, The CEO Pay Slice, (Harvard John M. Olin Ctr. for Law, Econ., & Bus., Discussion Paper No. 679, 2010), available at http://www.law.harvard.edu/faculty/bebchuk/ pdfs/Bebchuk-Cremers-Peyer-CEO-Pay-Slice-Sept2010.pdf. There is some hope for change on the corporate front but it is hard to see how readily applicable mechanisms such as staggered boards are to the class action context.
101. Cf. Lucian A. Bebchuk, Alma Cohen & Charles C. Y. Wang, Staggered Boards and the Wealth of Shareholders: Evidence from a Natural Experiment (Feb. 3, 2011) (unpublished manuscript), available at http://papers.ssrn.com/sol3/ papers.cfm?abstract-id=1706806 (finding that staggered boards tend to improve shareholder value).
102. See Coffee, supra note 48, at 300.
103. See Deborah L. Rhode & Paul D. Paton, Lawyers, Ethics and Enron, 8 STAN. J. L. BUS. & FIN. 9, 17-25 (2002) (describing the role of lawyers in the Enron scandal);
104. Matthew A. Smith, Note, Advice and Complicity, 60 DUKE L. J. 499, 515-17 (2010) (same).
105. Of course there are legal limits on the creation of the class action; the lawyer is not permitted to pay plaintiffs or others who bring them cases. Cf. John Leubsdorf, Legal Ethics Falls Apart, 57 BUFF. L. REV. 959, 1016-17 (2009).
106. John C. Coffee, Jr., Understanding the Plaintiff's Attorney: The Implications of Economic Theory for Private Enforcement of Law Through Class and Derivative Actions, 86 COLUM. L. REV. 669, 683-84 (1986).
107. See, e.g., Brian T. Fitzpatrick, Do Class Action Lawyers Make Too Little?, 158 U. PA. L. REV. 2043 (2010) (arguing that class action lawyers should receive 100% of the proceeds of class actions to create optimal incentives to bring deterrent small claims suits);
108. Myriam Gilles & Gary B. Friedman, Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers, 155 U. PA. L. REV. 103, 105 (2006) (arguing that in small claims class actions, "[a]ll that matters is whether the practice causes the defendantwrongdoer to internalize the social costs of its actions", not to whom it pays those costs).
109. See Brian Wolfman & Alan B. Morrison, Representing the Unrepresented in Class Actions Seeking Monetary Relief, 71 N. Y. U. L. REV. 439, 498 (1996) (describing the problem of settlements providing little or no relief to class members with viable claims).
110. See, e.g., 15 U. S. C. § 1681n (a) (2006) (imposing a civil penalty of between $100 and $1000 for violations of the Consumer Credit Reform Act of 1996).
111. See, e.g., Stewart v. Gen. Motors Corp., 756 F.2d 1285, 1294 n. 5 (7th Cir. 1985).
112. See, e.g., Rubenstein, supra note 60, at 2130-31 (presenting a taxonomy of uses of the private attorney general concept and arguing for a more nuanced view of the clients the attorney is serving and what their interests are).
113. For example, in the debate over CAFA, fourteen state Attorneys General wrote in opposition to a notice provision in the Act that "class actions provide an important 'private attorney general' supplement to our efforts to obtain redress for violations of state consumer protection, civil rights, labor, public health and environmental laws." 150 CONG. REC. 14, 366 (2004).
114. For a critique that has stood the test of time, see Coffee, supra note 1.
115. See, e.g., 15 U. S. C. §§ 1681c (g), 1681n (a) (barring retailers from reprinting more than five digits of a customer's credit card number, providing a minimum of $100 in statutory damages, and allowing for attorney's fees for successful suits).
116. See Coffee, supra note 1, at 218.
117. Id. at 220-26.
118. See generally Howard M. Erichson, Coattail Class Actions: Reflections on Microsoft, Tobacco, and the Mixing of Public and Private Lawyering in Mass Litigation, 34 U. C. DAVIS L. REV. 1 (2000).
119. See generally Erichson, supra note 78.
120. Coffee, supra note 1, at 226.
121. Id. at 234-35;
122. see also Susan P. Koniak & George M. Cohen, In Hell There Will Be Lawyers Without Clients or Law, 30 HOFSTRA L. REV. 129, 162-63 (2001).
123. 28 U. S. C. § 1715.
124. See supra note 74.
125. See Catherine M. Sharkey, CAFA Settlement Notice Provision: Optimal Regulatory Policy?, 156 U. PA. L. REV. 1971, 1975 (2008).
126. Austin Sarat, The Profession Versus the Public Interest: Reflections on Two Reifications, 54 STAN. L. REV. 1491, 1497 (2002).
127. Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 459 (1897).
128. See, e.g., Parker v. Time Warner Entm't Co., 331 F.3d 13, 25-27 (2d Cir. 2003) (Newman, J., concurring) (discussing the due process implications of certifying a class action brought on behalf of one million cable subscribers under a privacy law that provided a $1000 statutory penalty to each absent class member).
129. See id.
130. see also Sheila B. Scheuerman, Due Process Forgotten: The Problem of Statutory Damages and Class Actions, 74 MO. L. REV. 103 (2009) (arguing against statutory damages class actions on due process grounds).
131. See, e.g., Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 YALE L. J. 470 (1976).
132. Anne C. Dailey, Imagination and Choice, 35 LAW & SOC. INQUIRY 175, 177 (2010).
133. Id.
134. Id. at 177-78.
135. Id. at 178.
136. Thomas C. Grey, Hear the Other Side: Wallace Stevens and Pragmatist Legal Theory, 63 S. CAL. L. REV. 1569, 1570 (1990)
137. (quoting Letter from Wallace Stevens to Barbara Church (Sept. 29, 1952), in LETTERS OF WALLACE STEVENS, at 761 (H. Stevens ed., 1966)).
138. The proper usage of the terms "Romantic" and "Romanticism" has been the subject of intense debate. Here, I adopt by inference Jacques Barzun's definition, which defines Romanticism both by a set of artists, poets, and writers prominent during a historical period and an attitude or approach. See JACQUES BARZUN, CLASSIC, ROMANTIC AND MODERN 14-17 (2d ed. 1961).
139. PERCY BYSSHE SHELLEY, A DEFENCE OF POETRY 33 (1904).
140. Barzun, supra note 95, at 17.
141. Id at 16.
142. MARY SHELLEY, FRANKENSTEIN, at iii (Candace Ward ed., Dover Publ'ns 1994) (3d ed. 1831).
143. See Arthur R. Miller, Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the "Class Action Problem", 92 HARV. L. REV. 664 (1979).
144. See generally MARTHA C. NUSSBAUM, POETIC JUSTICE: THE LITERARY IMAGINATION AND PUBLIC LIFE (1995).
145. Dailey, supra note 90, at 189.
146. Id. at 187.
147. 356 F.3d 781 (7th Cir. 2004).
148. Id. at 782.
149. Id. at 782-83.
150. Id. at 783.
151. Id. Ultimately the court found that the claims discussed in this opinion were in fact worthless.
152. See Mirfasihi v. Fleet Mortg. Corp., 551 F.3d 682, 686-87 (7th Cir. 2008) ("We are disheartened that the litigation by the information-sharing class has been allowed to drag on for eight years, when it had no merit-and that as a matter of law, without need to take evidence.").
153. 982 F.2d 386 (9th Cir. 1992)
154. cert, dismissed, 511 U. S. 117 (1994) (stating writ of certiorari was "improvidently granted").
155. Id. at 387, 389.
156. Id. at 390-91.
157. 3 CONTE & NEWBERO, supra note 28, § 10:17.
158. See, e.g., Democratic Cent. Comm. v. Wash. Metro. Area Transit Comm'n, 84 F.3d 451 (D. C. Cir. 1996).
159. See, e.g., Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2d Cir. 1973)
160. acated on other grounds, All U. S. 156 (1974).
161. See BLACK'S LAW DICTIONARY 444 (9th ed. 2009). Cy pres translates into "as near as" and is a concept imported from the law of trusts and estates.
162. See, e.g., In re Mex. Money Transfer Litig., 164 F. Supp. 2d 1002, 1031-32 (N. D. Ill. 2000)
163. aff'd, 267 F.3d 743 (7th Cir. 2001).
164. See, e.g., Jones v. Nat'l Distillers, 56 F. Supp. 2d 355, 359 (S. D. N. Y. 1999).
165. See, e.g., In re Holocaust Victim Assets Litig., 424 F.3d 132, 147-49 (2d Cir. 2005) (approving the district court's cy pres distribution to the neediest members of the class of Jewish Holocaust victims, the majority of whom were located in the former Soviet Union);
166. Six Mex. Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1308 (9th Cir. 1990) (rejecting a proposed cy pres distribution to the Inter-American Fund for indirect distribution to Mexico because it "benefit[ed] a group far too remote from the plaintiff class");
167. Schwartz v. Dall. Cowboys Football Club, Ltd., 362 F. Supp. 2d 574, 577 (E. D. Pa. 2005) (rejecting cypres distribution to law school clinical program because it did not "touch upon the subject matter of the lawsuit (football or sports-related activities) "). Reasonable minds can differ on the question of whether the recipient of a cy pres distribution in fact shares a nexus with the underlying suit.
168. See, e.g., Powell v. Georgia-Pacific Corp., 119 F.3d 703, 707 (8th Cir. 1997) (approving a distribution in a discrimination class action to establish a scholarship fund for minority students in the same geographic area in which the class members lived);
169. Schwartz, 362 tF. Supp. 2d at 577 (approving a cy pres distribution in an antitrust class action to NFL Youth Education Town Centers which "ha[d] some involvement in the same area of commerce as the subject matter of the law suit (football or sports-related activities) ").
170. Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781, 784 (7th Cir. 2004);
171. see also tMartin H. Redish, Peter Julian, & Samantha Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 FLA. L. REV. 617, 622-23 (2010) (arguing that cy pres awards are an example of class actions exceeding the bounds of the law in part because they create the illusion of class member compensation).
172. Bell, supra note 89, at 492.
173. See FED. R. CIV. P. 11 (b) (2) (requiring that lawyers certify that the claims and defenses in a given suit are "warranted by existing law or by a nonfrivolous argument for... establishing new law").
174. WALLACE STEVENS, "The Man with the Blue Guitar", in THE COLLECTED POEMS OF WALLACE STEVENS 165 (Vintage Books 1990) (1954).
175. See Grey, supra note 94, at 1571.
176. Nikolai Gogol, Dead Souls 251 (Andrew R. MacAndrew trans., 1961).
177. Holmes, supra note 86, at 459.
178. Robert W. Gordon, The Path of the Lawyer, 110 HARV. L. REV. 1013, 1018 (1997).
179. See Anne C. Dailey, Holmes and the Romantic Mind, 48 DTUKE L. J. 429, 433-34 (1998).
180. OLIVER WENDELL HOLMES, The Law, in COLLECTED LEGAL PAPERS 25, 27 (1920).
181. See generally DAVID LUBAN, LEGAL ETHICS AND HUMAN DIGNITY (2007);
182. DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION (2000);
183. WILLIAM H. SIMON, THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS' ETHICS (1998) (favoring a lawyer's duty to build just institutions);
184. Russell G. Pearce, Professional - Responsibility for the Age of Obama, 22 GEO. J. LEGAL ETHICS 1595 (2009) (reviewing Luban, supra).
185. See, e.g., Elizabeth Chamblee Burch, Group Consensus, Individual Consent, 79 GEO. WASH. L. REV. (forthcoming 2011) (manuscript at 12-26), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1552462.
186. See generally Lahav, supra note 48 (making detailed, specific recommendations for improving class action governance).
187. I use the term "virtue" here very loosely, but other scholars have presented a more rigorous analysis of lawyer-virtue ethics. See, e.g., R. Michael Cassidy, Character and Context: What Virtue Theory Can Teach Us About a Prosecutor's Ethical Duty To "Seek Justice", 82 NOTRE DAME L. REV. 635 (2006).
188. W. Bradley Wendel, Professionalism As Interpretation, 99 NW. U. L. REV. 1167, 1178 & n. 31 (2005).
189. See Bell, supra note 89, at 492. In the article, Bell quotes the general counsel of the National Association for the Advancement of Colored People (NAACP) as saying that he cannot be expected to poll every class member before filing suit.
190. Id. But, of course, every class member need not be polled, only a sample randomly selected and large enough to yield significant results. Cf. Alexandra D. Lahav, Rough Justice 24-29 (Aug. 9, 2010) (unpublished manuscript), available at http://ssrn.com/abstract=l562677 (discussing optimal methods for sampling in litigation).
191. See Lahav, supra note 48, at 101-03 (discussing the limited guidance provided by Rule 23 and scholarly responses).
192. HANNA FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION 2 (1967).
193. FED. R. CIV. P. 23 (a).
194. See Amchem Prods., Inc. v. Windsor, 521 U. S. 591, 621 (1997) (stating that whether class should be divided into multiple, independently represented subclasses depends on whether the class "has sufficient unity so that absent members can fairly be bound by decisions of class representatives");
195. Lazy Oil Co. v. Witco Corp., 166 F.3d 581 (3d Cir. 1999) (affirming settlement in the face of objections from the class representative);
196. see also John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 COLUM. L. REV. 370, 375 (2000) (discussing the representative as a "mirror" of the class).
197. See generally STUART HAMPSHIRE, JUSTICE IS CONFLICT (2000).
198. Cf. id. at 79, 95-96.
199. Id.
200. See id. at 3-4.
201. Benjamin C. Zipursky, Integrity and the Incongruities of Justice: A Review of Daniel Markovits's A Modern Legal Ethics: Adversary Advocacy in a Democratic Age, 119 YALE L. J. 1948, 1990 (2010);
202. see also Alexandra D. Lahav, Absence Makes the Heart Grow Fonder: Dead Souls, Phantom Clients and the Modern Class Action, 40 STUD, IN L., POL. & SOC'Y 153 (2007) s (arguing that the class action lawyer must be in a constant state of questioning her aims and goals).