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Why Class Actions Are Something both Liberals and Conservatives Can Love

Posted by on Tuesday, May 26, 2020 in Essays, Volume 73, Volume 73, Number 4.

Brian T. Fitzpatrick | 73 Vand. L. Rev. 1147 (2020) |

In Professor Redish’s review of my new book, The Conservative Case for Class Actions, he argues that liberals should oppose the class action because the cy pres doctrine used to distribute settlement money is democratically illegitimate and that conservatives should oppose it because it is inferior to government policing of the marketplace or no policing at all. But cy pres is a longstanding common law doctrine and relying on it is no more illegitimate than relying on any other common law doctrine that has not been abrogated by legislation. Moreover, contrary to popular caricatures, conservatives actually do believe the marketplace needs some policing, and, for all the reasons we prefer private solutions over government solutions in other areas, we should prefer a private police force staffed with class action lawyers over government bureaucrats.

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Brian T. Fitzpatrick