In 1978, top DOJ officials in the Carter Administration floated a revolutionary proposal that would have remade the consumer class action and, with it, the relationship of litigation and administration within the American regulatory state. At the proposal’s core was a “public action” for widespread small-damages claims that would have replaced Rule 23 with a hybrid public-private enforcement model. Similar to the False Claims Act, this new mechanism would have granted private plaintiffs the power to bring lawsuits and recover a finder’s fee if successful, but it also gave DOJ substantial screening authority and control, including the ability to take over suits or dismiss them outright. Despite months of shuttle diplomacy among interest groups, a pair of bills in Congress, and full-scale committee hearings, this creative blend of private initiative and public oversight soon fizzled. Yet the story of the proposal’s rise and fall nonetheless provides a venue for wider reflection about American civil procedure and the political economy that produces it. Indeed, the failed revolution of 1978 reveals a contingent moment when the American litigation system was splintering into the pluralistic, chaotic one we now take for granted, including hard-charging state attorneys general, a federal administrative state with litigation authority independent of DOJ, and a sophisticated and politically potent plaintiffs’ bar. In retrospect, the proposal may have been the last best chance to counter the centrifugal tendencies of an American state that was progressively empowering ever more institutional actors within the litigation system. More importantly, lurking in the background of the story of 1978 is the bracing possibility that the Rules Enabling Act, for all its virtues in revising technocratic procedural rules, has systematically enervated efforts to address larger procedural design questions in an increasingly dense and interconnected regulatory world.The second, forthcoming in the Stanford Law Review 70 (2018): is “Not Merely There to Help the Men”: Equal Pay Laws, Collective Rights, and the Making of the Modern Class Action:
For many, the 2011 case of Walmart v. Dukes—a gender discrimination suit brought on behalf of 1.6 million women—represents, for good or ill, the apogee of the modern class action. Yet Walmart’s recency also raises a puzzle: Why, in a nation thought pervasively committed to “adversarial legalism,” did mass litigation and, in particular, the class action lawsuit not emerge as significant regulatory tools until at least the 1970s? Standard answers point to New Deal faith in bureaucracy, or an Advisory Committee that was not moved to amend Rule 23 until mounting docket pressures and the desegregation cases of the 1950s and 1960s forced its hand. This Article challenges these accounts by framing the modern class action’s emergence as part of a broader mid-century battle over how to conceptualize collective rights within the emerging New Deal state. Using the untapped records of a remarkable lawsuit brought by 29 female factory workers against General Motors in 1937 claiming unequal pay and the heated legislative campaigns to enact pay equity laws it spurred, this Article presents overwhelming evidence that labor unions killed the earliest effort to build American anti-discrimination law around the class action. Working against dozens of bills providing for class action authority, damages multipliers, and attorney’s fees, unions instead pushed the new pay equity laws into an anemic administrative system of regulation because they saw class actions as an existential threat to the New Deal system of labor relations built around collective bargaining.
Recovering this history yields two kinds of insights. First, it allows us to imagine alternative pathways in the continuing American struggle to combat workplace discrimination. Indeed, a more potent regulatory response to gender discrimination in the immediate post-war era could have, decades before a case like Walmart was even imaginable, fundamentally altered the American industrial order and women’s place in it. Second, the early history of the pay equity movement offers an especially clear example of how the tensions between a labor-driven vision of collective rights and one built around adversarial, aggregated litigation of workplace disputes have shaped the evolution of the American regulatory state. That history remains highly relevant today as the Supreme Court, in a trio of cases asking whether the National Labor Relations Act bars class action waivers in arbitration agreements, must once more reconcile American labor law and the class suit.