As explained in the lecture and readings, several developments have combined to undermine the class action: (a) Congress passed a law, the Class Action Fairness Act, that pushed most class actions from state to federal court, (b) the Supreme Court, particularly in the Wal-Mart case, made it more difficult to certify a class action in federal court, and (c) the Court has repeatedly enforced arbitration clauses even if they contain explicit or implicit waivers of class actions.
Imagine that you work for a member of Congress who is considering legislative changes to the class action as a litigation device. The member of Congress has asked you to write a brief memo outlining one or more proposals that you would make to reform the class action via congressional legislation. Write a memo of between five and seven double-spaced pages. In your memo, you should do the following things.
First, explain what you see as a key problem or problems with the role of the class action in modern civil litigation. In doing so, make sure you explain how class actions differ from ordinary civil litigation, and create additional challenges.
Second, describe one or more proposals for reform or change to the class action as a litigation device, which could be embodied in a new law passed by Congress.
Third, explain why your proposal or proposals would be an improvement over the status quo.
As with the first assignment (on discovery), you are free to write a memo covering only one proposed reform, or you may write about more than one proposal. However, I highly recommend that you do not spread yourself too thin by trying to write about too many topics. An approach that tries to cover too much ground will likely receive a lower grade because it will be unable to fully explain and defend the changes that are being proposed.
