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Thursday, April 06, 2017

The Liberaltarian Class Action

When my old colleague Brink Lindsey coined the term “liberaltarianism” in 2006—his term for a liberal-libertarian “rapprochement”-- it seemed like an idea that was headed nowhere. 

But as the post-Trump Republican Party has catapulted deep into the abyss of nativism and racial resentment, treating us to various civil libertarian horror shows along the way, some Never Trump libertarians are finding common cause with progressives. 

And, as a result, liberaltarianism is getting a second wind.  Witness the amazing leap to prominence, over the last year or so, of the new Niskanen Center, a think tank that is the project of a great group of former colleagues from the Cato Institute, like Will Wilkinson, Joey Coon, Radley Balko, and Jerry Taylor.  

Niskanen’s M.O. is making a pragmatic libertarian case for positions once exclusively associated with the left or center-left.  Niskanen writers have produced some of my favor pieces of punditry in the last several months, like this Will Wilkinson piece on the social safety net and Jacob Levy’s piece on the BLM movement.

But they haven’t addressed one burning question (OK--burning perhaps only in the minds of class action nerds like me): what does liberaltarianism  mean for class action policy?

As even casual observers of the class action  know, its only a slight exaggeration to say that the Beltway debate over the class action has become as predictable as The Walking Dead.  It divides into two camps: One side (a constellation of plaintiff-oriented groups and progressive think tanks) argues, roughly, for a restoration of the permissive class certification caselaw of the late 1970s and 1980s.  The other—a group of corporate defense attorneys and allied advocacy groups, like the Chamber of Commerce—perpetually advocate an ever deeper retrenchment of the class action across the board.    

Mainstream libertarian groups, like my one-time employer the Cato Institute, tend to align with the Chamber—a product of the way that (as Will Wilkinson recounts here) the culture of Beltway libertarian think tanks has, at least in big stakes policy debates that are likely to produce actual legislation, biased them toward operating as spokes-entities for positions favored by the Republican Party. 

But, on class action reform, anyway, this alliance is quite odd.  If any group should be receptive to a robust role for the class device—particularly when it comes to civil liberties—its libertarians. 

Hence the value of the liberaltarian moment:  by creating a safe space for center-right heterodoxy, groups like the Niskanen Center are also creating an opportunity to scramble battle lines in the Beltway class action debate.

Is there a distinctive libertarian position for the class action?  What might it look like? Might it be different from "The Conservative Case for Class Actions” (the subject of Brian Fitzpatrick’s much anticipated forthcoming book?) In future posts, I’ll jot some tentative, blog-appropriate thoughts by using the pending Fairness in Class Action Litigation Act as a case study.

Posted by Mark Moller on April 6, 2017 at 01:20 AM in Civil Procedure | Permalink

Comments

Mark,

Looking forward to reading your posts. Of course, as you know, the House Republican Liberty Caucus made these very arguments in opposing the Fairness in Class Action Litigation Act in March. They describe the class action as a "market-based" solution to address "widespread breaches" of various legal rights. They go on to argue class actions are preferable to ex ante government regulation (which it said imposes "compliance costs" on whole industries, rather than just "bad actors.")

https://mobile.twitter.com/libertycaucus/status/839967179495837696/photo/1

All my best.

Adam

Posted by: Adam Zimmerman | Apr 6, 2017 4:07:47 PM

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