Sergio J. Campos (University of Miami – School of Law) has posted Class Actions and Justiciability (Florida Law Review, Vol. 65, No. 6, 2013) on SSRN. Here is the abstract:
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A lingering issue in class action law concerns the "case[]" or "controvers[y]" requirement of Article III, otherwise known as the requirement of justiciability. The question is this: For purposes of justiciability doctrines such as standing, mootness, and ripeness, is the class action brought by all class members, some class members, or just the class representative? This article argues that the answer is none of the above. The article first shows that the function of the class action is to create a trust by assigning dispositive control of, and a partial beneficial interest in, the class members’ claims to the class attorney for the benefit of the class. In doing so, the class action gives the class attorney an incentive to develop the claims, which is essential for litigation in which class actions are permitted. After clarifying the trust function of the class action, the article then argues that the real party in interest for purposes of Article III should not be any of the class members, but the class attorney, since she has the proper incentives to litigate the action. Finally, the article discusses what the trust function of the class action can teach us about the function of the law of justiciability, particularly the concern with the adequate representation of the interests of nonparties affected by a federal court's exercise of jurisdiction. It concludes that the law's insistence on a plaintiff having a concrete and particularized injury is misplaced. Instead, federal courts should focus on (1) whether the parties entitled to bring suit have the proper incentives to adequately represent of all the interests implicated by the action, and (2) whether judicial intervention is appropriate given other political alternatives.