Class Actions, Litigant Autonomy, and the Foundations of Procedural Due Process

Literally hundreds of scholarly works have been written about the modern class action. Surprisingly little of this wealth of discussion, however, has concerned the collectivist-individual tension that inheres in much of the class action framework. With the melding of multiple individual claims into a single class proceeding necessarily comes a dramatic reduction in an individual's ability to control her lawsuit - or, indeed, to decide whether to pursue her claim in the first place. Because the Constitution's Due Process Clauses are generally construed to assure that an individual's legally protected rights cannot be adjudicated without providing her with a day in court, there would seem to exist at least a prima facie conflict between the dictates of procedural due process and the collectivist goals of the class action procedure. This paper explores the Court's current doctrinal framework for procedural due process by pointing out its serious flaws, particularly its failure to recognize the vital role that the autonomy valve should play. It explores the autonomy value's foundations in American constitutional and political theory. Finally, it proposes a revised due process calculus, designed to take into account the importance of litigant autonomy.