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INTRODUCTION
In recent years, there have been hundreds of academic articles and scores of books written about class action litigation.1 The law reviews abound with doctrinal critiques, letters to Congress, moralist manifestos, and economists' prescriptions for optimized class action rules. Reading it all, one would certainly think that abusive class action litigation is running amok in the United States.
On the doctrinal front, for example, Professor Martin Redish raises the objection that much of contemporary class action litigation is, in reality, a "lawyer-driven" hunt for bounty and that, when a court in such a case applies Rule 23 procedures to a substantive federal statute, it is effectively grafting a qui tam provision onto a law that contains no such remedy. Redish would have courts hold that Rule 23 may not be applied to lawyerdriven suits, lest it conflict with the remedial scheme of the substantive congressional enactment upon which the suit is based. Alternatively, he would settle for legislation banning the widespread scourge of lawyer-driven class actions.2
From the moralist corner, Professor Charles Wolfram raises the somewhat less nuanced objection that plaintiffs' lawyers are, well, immoral. Professor Wolfram's attack focuses on the "low state of ethical practice in class actions" and the "sell-out lawyers who, for millions in fees, are willing to sign away the rights of tens of thousands of faceless and lawyerless class members."3 The moralists4 purport to be pessimistic about "reform" efforts so long as a "sizable number of lawyers . . . are attracted to the big-money rewards of morally compromised (but legal) professional work."5
Law and economics, of course, has had a field day criticizing class actions. Economic analysis has led some scholars to conclude that the agency costs inherent in "entrepreneurial litigation" (that's law and economics for lawyer-driven suits) produce inefficiencies that can only be addressed by a free market for legal claims, in which attorneys may purchase outright the claims of class members.6 Related scholarship focuses on auctioning the lead counsel position in class actions,7 on the problems of collusion between plaintiffs' lawyers and defendants,8 on the concomitant problems of self-dealing by class counsel,9 or on the supposedly outsized leverage that class certification gives even the most baseless of class claims.10 Indeed, economic analysis has been brought...