Document Type

Article

Publication Title

Mississippi College Law Review

Volume

24

Publication Date

2004

Keywords

Mass aggregate litigation, Mississippi, class action, appointment of counsel, Federal Rules of Civil Procedure, judicial authority, mass tort litigation

Abstract

In my primary contribution to this Symposium, I address whether Mississippi ought to adopt a class action rule. In that article, I show that the lack of a class action rule prevents neither mass disputes nor mass aggregate litigation. I argue that for some mass disputes, class actions provide a superior mechanism for dispute resolution, and that Mississippi therefore should adopt a rule permitting class actions. There is another important question, however, which is what such a rule should contain if adopted. Indeed, the questions of whether to permit class actions and what a class action rule should contain are inseparable for at least two reasons. First, several of the arguments in favor of adoption presume certain contents of the rule, such as judicial control over settlements, fees, and appointment of counsel. Second, some participants in the symposium expressed concerns about whether a class action rule, in the hands of Mississippi lawyers and judges, would work unfairness. These concerns can be addressed, at least to some extent, by careful drafting of the rule and accompanying measures. I will comment first on the wisdom of following the model of Federal Rule of Civil Procedure as a starting point. Second, I will offer an argument in favor of permitting opt-outs in most money damages class actions, notwithstanding David Rosenberg and John Scanlon's thought-provoking proposal to the contrary. Third, I will address a number of specific aspects of class action rule-drafting, commenting on the positions taken by Robert Klonoff. Finally, I will offer suggestions on how to address what may be the greatest obstacle to adoption of a class action rule in Mississippi - mistrust of judicial authority and a reluctance to expand judicial power.

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