Class Actions All the Way Down

Sergio J. Campos*

Response to: Michael D. Sant’Ambrogio & Adam Zimmerman, The Agency Class Action, 112 Colum. L. Rev. 1992 (2012).

Introduction

In his review of Kill Bill Volume I, Roger Ebert describes the film as “kind of brilliant,” and then proceeds to quote Manny Farber’s definition of auteur theory: “A bunch of guys standing around trying to catch someone shoving art up into the crevices of dreck.”¹ After reading The Agency Class Action,² I felt like I had caught the authors not exactly shoving art up into, but certainly extracting art out of, the crevices of dreck.

The dreck in this case is the class action, arguably the most controversial procedure in civil litigation. The art is the lessons the authors believe the class action can teach us. One of the coauthors, Adam Zimmerman, recently applied the lessons of the class action to the criminal context.³ Here Zimmerman and his coauthor, Michael Sant’Ambrogio, turn their attention to administrative law.⁴ Other scholars have recognized the similarities of the class action to administrative law, perhaps most famously the late Richard Nagareda.⁵ But Zimmerman and Sant’Ambrogio, unlike Nagareda and others, do not use administrative law to criticize the class action. Instead, they use the class action to suggest reforms to administrative law.⁶ It is an approach that is equal parts creative, audacious, and heretical. This is just a long way of saying that I think the Article is “kind of brilliant.”

This Response first situates The Agency Class Action within the literature on the class action. It is not an exaggeration to say that the Article is borderline heretical given the current animosity toward the class action. This is not to say that Zimmerman and Sant’Ambrogio view the class action as a panacea. Instead, they move the debate forward by focusing not on the bad of the class action but the good. Indeed, the Article is a throwback to a view of the class action as an important complement to administrative enforcement.

This Response then suggests that, whether the authors are conscious of it or not (and I think they are), the Article contains a much deeper critique of some basic premises that underlie both the law of civil procedure and administrative law. As I have argued in my own work, the class action is not only a source of wisdom, but it upends many common sense notions that underlie a great deal of legal doctrine on civil procedure, most notably the fetish many courts and scholars have with protecting litigant autonomy.⁷ Here, I want to point out that Sant’Ambrogio and Zimmerman’s description of administrative law’s pathologies, and their suggested reforms, implicitly reject a parallel commonly accepted premise of administrative law—the concern with “replacing individual hearings with a potentially faceless, unresponsive bureaucracy.”⁸ In my view, the Article celebrates the benefits of “faceless . . . bureaucracy.”

I. The Class Action Is the Solution!

Sant’Ambrogio and Zimmerman modestly describe the contribution of their Article as “natural, albeit novel.”⁹ The natural part is easy to understand. The modern class action, like the modern administrative state, is a product of the New Deal. Although class actions, in one form or another, have been around for centuries,¹⁰ the contemporary class action did not enter the American legal scene until the tail end of the New Deal, roughly around the promulgation of the first Federal Rules of Civil Procedure in 1938.¹¹

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