An Historical Analysis of the Binding Effect of Class Suits

Abstract

of what constitutes a class.Hence, the definition of the class has been the key controversy. 23The definition of a class in a lawsuit can be specified from two different chronological points in the course of the lawsuit.One is a prospective definition adopted in connection with framing the suit at the outset.Such a definition specifies who is a party, or deemed by representation to be a party, in the instant case.The other chronological point is retrospective, specifying who was a party in the case formerly adjudicated.A prospective definition is employed in framing the action and may serve to anticipate who will be precluded by the adjudication; a retrospective definition is employed in applying the rules of res judicata and determines whether the prior forecast will actually be fulfilled.In the language of economics, the difference of perspective is that between ex-ante and ex-post.Considerations of legal consistency and protection of party expectations require that the two definitions coincide.Of course, these considerations are not preemptory.Where numerous persons are commonly involved in a legal controversy, it could be said prospectively that the suit will bind all of them, including absentees, but then be held retrospectively that the absentees actually are not bound.(It would also be possible to say prospectively that they are.Surprise!) 24 There is, however, a serious shortcoming in such inconsistency.Very simply put, if, in the administration of justice, courts take inconsistent positions ex-ante and ex-post, then party expectations are rendered uncertain.Serious unfairness can result when party expectations about the effect of the suit are uncertain.As we shall see, over the course of history, the courts have been quite inconsistent in their position on res judicata in class suits.Notwithstanding these inconsistencies, the courts have seemed to think they were dealing with two temporal aspects of a single problem and therefore have employed a single definition both ex-ante and ex-post.The history of the class suit nevertheless demonstrates that the courts have great difficulty actually maintaining a consistent position concerning res judicata in cases where res judicata effects have practical significance.In formulating a coherent and consistent position as to whether an absentee class member is bound by a class suit judgment, courts have relied on 23 See generally Yeazell, Group Litigation and Social Context, supra note 12, and Yeazell, From Group Litigation, supra note 12, for a discussion of the history and changes in the nature of litigation groups.24 See, e.g., Lee v. Hansberry, 24 N.E.2d 37, 40 (II1.1939) (holding that the doctrine of res judicata extends not only to matters actually determined in the prior suit, but that it also applies to all grants of recovery and defense involved which might have been raised), rev'd 311 U.