William Barnette, ‘There is No Conservative Case for Class Actions’

In his book The Conservative Case for Class Actions, Professor Brian Fitzpatrick of Vanderbilt Law School argues that because conservatives favor market forces, the profit motive, and privatization, they should favor regulating corporations through private class action litigation rather than the hand of big government. In particular, Fitzpatrick focuses on privatization, noting conservatives favor the concept generally because they believe better incentives in the private sector will typically lead it to outperform the government. Fitzpatrick concludes that private class actions ‘are not only the most effective way to hold corporations accountable, they are also the most conservative way to hold them accountable’. The problem with this argument is that whatever its merits in theory, in reality the conservative principles Fitzpatrick espouses are either wholly missing or fundamentally distorted as applied in modern class action practice. Ultimately, Fitzpatrick’s thesis fails on perhaps the most fundamental conservative principle of all – seeing the world as it is, instead of how we wish it to be. Class actions are not on the verge of disappearing, whether because of arbitration or any other aspect of Supreme Court jurisprudence. Class actions vastly increase the regulatory burden on companies, creating issues that government regulators would never bother to pursue. Class actions typically do not meaningfully benefit class members, but they do enrich class counsel. Class actions are not driven by market forces, but rather the profit motive has been distorted to incentivize copycat, abusive filings. Finally, class actions as currently practiced have no basis in this country’s legal tradition, have effected a radical change in the risk defendants face for many types of claims, and promote collectivization at the expense of individual liberty. Aside from the plaintiffs’ bar, no one should be happy with how class actions are litigated in the country today, least of all conservatives.

Barnette, William P, There is No Conservative Case for Class Actions (July 13, 2021). 22 The Federalist Society Review 192 (2021).

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