The 99.6% final version of my latest law review article, Class Action Lawmaking: An Administrative Law Model, is now posted on SSRN (here). The article is forthcoming in the next edition of the Texas Review of Law and Politics. An early draft was posted some months ago, but it has been significantly revised in response to helpful comments at two faculty workshops. Here is the abstract:

This Article considers how courts should interpret federal statutes when the interpretive question affects the scope or availability of class certification. When faced with such a question, many courts are tempted to interpret the statute in a way that enables class certification, enhancing the chance that the parties will settle.

I argue that the debate over this practice can be conceptualized as a debate about delegation. Those who argue that courts act illegitimately when they “adapt” statutes to “fit” the class device assume Congress has delegated courts a narrow range of discretion to promote certification and settlement under federal statutes. By contrast, those who argue courts have great leeway to certify statutory claims, even at the price of “distorting” the statute, assume courts have been delegated a great degree of such discretion.

The Chevron doctrine of administrative law provides an unexpected solution to this debate, if we treat Chevron as a “starting-point” measure of Congress’s intent to delegate authority to “adapt” federal statutes to new circumstances. This proposal is roughly similar to Nicholas Quinn Rosenkranz’s suggestion that Chevron might be treated as a “constitutional starting-point rule” for defining permissible delegations of “dynamic interpretive power.”

My argument, however, is pragmatic rather than constitutional: in the absence of clear information about Congress’s desires in the class context, and in light of the complex trade-offs implicated by class actions, an off-the-rack approximation of Congress’s intent to delegate dynamic interpretive power to courts in the class context is needed. I suggest that Chevron is the best available “starting point” measure, in this pragmatic sense. In other words, pending further instruction from Congress, we might ask courts in the class context to start by “thinking about statutory interpretation and statutory discretion as they would want an agency to think.”

In the process, I show that the obvious objection to using Chevron in this fashion—that federal courts, unlike agencies, are not democratically accountable—doesn’t withstand close scrutiny. Put bluntly, courts interpreting statutes that affect the scope of their power to certify claims exempt themselves from the restraint they demand of agencies. Asking courts to consciously parallel the restraint they expect of agencies therefore reins in courts’ interpretive discretion—promoting, in the process, more democratic control over class action lawmaking.

Incidentally, I found Nicholas Quinn Rosenkranz’s article, Federal Rules of Statutory Interpretation, very helpful. You can access his paper, which I rely on in this latest draft and reference in the abstract, here.