TITLE

AN OPT-IN OPTION FOR CLASS ACTIONS

AUTHOR(S)
Dodson, Scott
PUB. DATE
November 2016
SOURCE
Michigan Law Review;Nov2016, Vol. 115 Issue 2, p171
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes over broad and ill-defined classes; these critics favor an opt-in model. This bimodal debate — opt out vs. opt in — has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on an opt-out or an opt-in basis? This article explores such an opt-in option. It considers the effects of opt-in classes’ enhanced cohesiveness and representational character on the ease of class certification, the logistical challenges of opt-in mechanisms and the technological advances that can mitigate those challenges, the doctrinal feasibility of allowing an opt-in option, and the potential pitfalls the option presents. The article concludes that the opt-in option has positive potential, and it offers specific proposals for rule makers to consider.
ACCESSION #
119289564

 

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