The Governance Problem in Aggregate Litigation

By Samuel Issacharoff
April 30, 2013

Recent developments in class action law and scholarship have forced new attention on the question of how class representation should be assessed. This Article begins with an examination of the governance problem in class action analyzed from the perspective of the customary political theories that would justify legitimate government in public and private domains. Customary accounts of democratic legitimacy or contractual voluntarism poorly capture the distinct world of the one-time aggregation of a class under court-assigned leadership. What emerges is an assessment of how various class action doctrines serve to fill the void in customary indications of legitimacy in governance. The Article concludes with a review of alternative efforts to structure class governance to avoid the agency problems inherent in the power to manage the affairs of others.