The Conservative Case for Class Actions

In a new book published by the University of Chicago Press, Vanderbilt Law Professor Brian Fitzpatrick makes the case for class action litigation from a surprising perspective: an unabashedly conservative point of view.

Professor Fitzpatrick argues that all of us, conservatives and libertarians included, believe that markets need at least some policing to thrive, from laws that enforce contracts, to laws that prevent companies from committing fraud, to laws that prohibit price fixing. But he shows there are only two ways to do this policing: 1) private lawsuits filed by private citizens and their lawyers or 2) more government. He argues that, for the same reasons conservatives prefer other private sector solutions to problems, they should prefer private enforcement of the law as well.

Yet, for many market infractions—those involving small harms—the class action lawsuit is the only form of private enforcement possible because the harms are too small for anyone to sue on their own. Although the class action is not perfect, Professor Fitzpatrick shows in several data-driven chapters that our system is working better than might be expected given all the criticism it endures. Nonetheless, in the book’s final chapter, he suggests a few tweaks that he hopes will persuade conservatives to keep the class action around for the next generation of consumers, employees, and shareholders alike.

Offering a novel argument that will surprise partisans on all sides, The Conservative Case for Class Actions is sure to breathe new life into a long-running debate.

The Conservative Case for Class Actions is available here. Signed copies are available here.