Over the past two decades, courts and commentators have often treated the class action as though it were a monolith, limiting their analysis to the particular class form that joins together a large number of claims for monetary relief. This Article argues that the myopic focus on the aggregated-damages class action has led to under-theorization of the other class-action subtypes, which serve far different purposes and have far different effects, and has allowed the ongoing backlash against the aggregated-damages class action to affect the other subtypes in an undifferentiated manner. The failure to confine this backlash to its intended target has had a negative impact on the availability of the other class forms, harming the interests of both litigants and the judiciary. In particular, in civil-rights cases involving injunctive or declaratory relief, obstacles to class treatment pose a threat to remedial efficacy and the rule of law. Courts, lawmakers, and scholars should therefore engage in a broader analysis that takes into account all of the subtypes set forth in the modern class-action rule.
Class Action Myopia,
65 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol65/iss5/1