In recent years, I have become leery of writing book reviews. The authors, who are sometimes people I know, have often poured their heart and soul into the book and a proper review requires me to say negative and sometimes harshly critical things about it. This usually makes me feel bad. Reviewing The Conservative Case for Class Actions is a welcome contrast. Finally, a book review that leaves me feeling good.

Vanderbilt law professor Brian T. Fitzpatrick has produced a well-constructed, informative, and clearly expressed argument for the value of class action lawsuits. But since reviewers are usually required to find something negative to say, I will point out that both the book’s title and much of its exposition are misleadingly modest. Fitzpatrick has not given us the conservative case for class action; he has given us the case for class action. Throughout the book, he writes as though his argument is designed only for conservatives and he continually cites those he refers to as conservative scholars in support of his contentions. Perhaps this is done for rhetorical reasons. Perhaps he believes that liberals are already on board and need no convincing. Or perhaps he believes that characterizing conservatives as opposed to class action is enough to influence liberals to support them. Whatever the case, the rhetorical flourish is unnecessary. The book provides a well-reasoned argument for class action that should appeal to thoughtful readers regardless of prior ideological commitments.

While we are on the subject, I should probably warn the reader that in using the term “conservative,” Fitzpatrick is not referring to today’s members of the American political right: what might be called “Trump conservatives” if that were not oxymoronic. He uses the term to refer to what might be called Reagan conservatives: a big tent conception of conservatism that includes libertarians and market-friendly social conservatives.

Having gotten that out the way, let me get on with the review.

Nonpolitical safety regulation / The best thing about this book is that it is written not for other law professors, but for a non-expert audience. Its purpose is to explain the complex subject of class action lawsuits to ordinary members of the public, something that it does extraordinarily well. In a carefully crafted series of chapters, Fitzpatrick leads the reader through an understanding of, first, how the tort system works in general, and then the specific role class action lawsuits play within the system. It does this in language that is devoid of technical jargon and easily accessible to its intended audience.

As a Torts professor, I have become inured to having misrepresentations about virtually every aspect of the tort system widely disseminated to the public, as exemplified most notoriously by the McDonald’s coffee cup case. This book is designed as an inoculation against the spread of this virus.

Fitzpatrick patiently and clearly explains that tort law is a subtle, nuanced, and powerful form of nonpolitical safety regulation. Although he never expresses it this way, what he is showing is that tort law and class action lawsuits are the market’s internal regulatory mechanism. Perhaps this is why he calls his argument the “conservative” case for class actions.

In the book’s early chapters, Fitzpatrick patiently and usefully explains the nature of tort law and distinguishes different referents for the term “regulation.” In Chapter 2, he points out that markets need rules barring certain types of conduct in order to function. Rules prohibiting theft, fraud, breach of contract, and violence against person and property (and perhaps monopolization, i.e., antitrust law) are required for people to be able and willing to engage in market transactions. These rules constitute regulation, but they are a necessary form of regulation that all parties, even conservatives, want to see effectively enforced. Such rules can be distinguished from the unnecessary, politically created regulations that conservatives oppose.

The question then becomes, what is the most effective way of enforcing these necessary regulations? In Chapters 3 and 4, Fitzpatrick explains that rules can be enforced either publicly by designated government prosecutorial agents or privately through civil lawsuits brought by private parties represented by private attorneys. He then carefully articulates the pros and cons of each enforcement method. He begins by methodically detailing the advantages of private enforcement, presenting arguments that show that it requires smaller government, allows for self-help, has better incentives than public enforcement, makes better use of limited resources, is less centralized, and — importantly — is resistant to regulatory capture and so is less subject to political bias. One of the great virtues of the book is that Fitzpatrick backs up each contention with supporting data expressed in terms easily accessible to the lay person.

Fitzpatrick then considers the potential problems with private enforcement, such as the effect of the profit motive on plaintiffs’ attorneys, the charge that it is undemocratic, and that it is applied inconsistently. He forthrightly recognizes the ways in which private enforcement through tort law departs from the ideal model of regulation. But one of the great values of this book is that he never forgets that the relevant question is always, compared to what? Once again, he appeals to data to demonstrate that public enforcement suffers from the same or similar problems as much as, if not more than, private enforcement. Simply put, he provides a well-reasoned, clearly expressed, data-supported case for the superiority of private regulation through tort law to the public enforcement of politically derived regulation.

Having laid this groundwork, in Chapter 5 Fitzpatrick turns his attention to showing how class action lawsuits fit this nonpolitical regulatory mechanism. He begins by explaining how class action lawsuits fill a hole in the private enforcement system that results from our modern commercial society. With companies supplying goods and services to national and international markets, large corporations can do things that impose small harms on large numbers of people. Because many of these harms are so small that the transaction costs of bringing a lawsuit would overwhelm any potential recovery, individuals acting alone cannot use the civil liability system to redress this type of harm. The class action allows the entire class of aggrieved parties to sue for the total loss suffered by all. This overcomes the transaction cost problem and renders the lawsuits financially viable. In this way, the class action provides both the needed compensation for small but widespread wrongdoing in the past and the necessary deterrence of such wrongdoing in the future.

Fitzpatrick then shows that class action lawsuits share the advantages of all private litigation over public enforcement: they require less government, allow for self-help, have better incentives than governmental agencies, make better use of limited resources, and are resistant to political biases. He admits that class actions are a more centralized form of regulation and that, along this dimension, they are more like public enforcement mechanisms than most lawsuits. Nevertheless, he shows that they require less centralization than public enforcement, once again reminding us that the relevant question is always, compared to what?

Handling objections / Having made the positive case for class action, Fitzpatrick devotes the remainder of the book to answering what he calls conservative arguments against class action. Once again, this characterization is a bit misleading because he is addressing all significant arguments against class action.

He begins by knocking off a series of minor objections: that the small harms that class actions target are not worth the trouble of redressing, that class actions restrain liberty, that they distort substantive law, and that they pose special under-enforcement problems.

His simple answer to the first objection, that the small harms are not worth redressing, is that small harms to individuals can produce large harm in the aggregate. There is no reason to allow such wrongdoing if it is preventable in a cost-effective manner.

Fitzpatrick regards the second objection, that class actions restrain liberty, as more symbolic than substantive. Although it is true that class actions deprive inattentive plaintiffs of the freedom to sue on their own, he argues that because class action litigation is Pareto efficient, this loss is insignificant. Because all plaintiffs are better off if the litigation succeeds, and none are worse off if it fails, he claims that the loss of freedom is an entirely theoretical objection.

He treats the third objection, that class actions distort substantive law, as a red herring. If courts are skewing the substantive law to meet the procedural demands of the class action, they are behaving improperly. Although such improper judicial conduct should be curtailed, that problem does not lie with the class action.

The final objection, that class actions pose under-enforcement problems, arises from the risk that class action plaintiffs’ attorneys will collude with corporate defense counsel to maximize legal fees while minimizing corporate liability. Fitzpatrick recognizes this risk, but contends the civil liability system has already adapted to it by instituting measures designed to prevent such collusion.

In the next three chapters, Fitzpatrick addresses what he considers the most significant objections to class action. The first is that the class action mechanism encourages meritless lawsuits. This, of course, is the class action version of the general knock on tort law exemplified by the McDonald’s coffee cup case. Fitzpatrick spends Chapter 6 methodically undermining this critique both procedurally and substantively. He begins by detailing the various stages at which spurious claims are eliminated procedurally, explaining both the motion to dismiss and the motion for summary judgment. He once again uses data to support his description of how the system works, showing that the statistics on actual class actions settlements do not bear out the claim that a significant number of meritless lawsuits survive motions to dismiss. He spends some time reviewing the putative examples of frivolous class action lawsuits advanced by critics to show that even what appear to be the most egregious examples, when correctly understood, are meritorious suits.

In Chapter 7, Fitzpatrick turns his attention to the claim that class action lawsuits benefit plaintiffs’ counsel more than, and often at the expense of, the injured clients. Once again, he relies on data: in this case, a survey of every class action settlement in federal court over a period of two years. After showing that fee awards average only 15%, he goes on to demonstrate that even in cases in which the individual plaintiffs collect little, the judgments are still justified by the deterrence function they serve. He provides an interesting economic analysis of both the incentives of the plaintiffs’ attorneys and the defendants that shows that, in the present system, plaintiffs’ counsel are underpaid — that the system would serve its twin functions of compensation and deterrence better if courts were not reluctant to award fees on a true contingency fee basis.

Finally, in Chapter 8, Fitzpatrick confronts the criticism that class action lawsuits are not effective deterrents to corporate wrongdoing. He spends some time demonstrating that they provide specific deterrence — that they deter the specific corporate wrongdoer from engaging in similar wrongdoing in the future — by showing both that class actions provide injunctive relief and that such relief is generally effective. But he devotes most of his attention to demonstrating that class actions provide general deterrence: that they discourage others from engaging in wrongdoing similar to that of the corporate defendant. He argues that the claim that class actions are not effective in this regard is based on a recitation of the principal–agent problem that has already been resolved, and the contention that the prospects of such suits are too uncertain to motivate action that totally ignores the legion of attorneys devoted to risk assessment. Once again, he supports his contentions with data, examining the set of empirical studies of class actions to show that almost all of them demonstrate general deterrent effects.

Better than public enforcement / In keeping with his approach of making a comparative assessment, Fitzpatrick ends his book with a final chapter examining the defects of class action litigation and possible cures for them. Although he writes as though he is addressing a series of independent defects, several of them combine into the major critique of class action litigation that Fitzpatrick has not yet addressed: that such lawsuits overdeter.

The greatest risk of overdeterrence arises from plaintiffs’ attorneys’ ability to exploit the discovery process. Plaintiffs’ counsel with weak cases that are nonetheless substantive enough to survive a motion to dismiss can use the discovery process to go on a fishing expedition through corporate records. This can not only bolster the prospects of their present lawsuit (and provide a factual basis for future lawsuits against the defendant corporation), but also impose the significant costs of producing the requested documents and witnesses on the defendants. As a result, corporate defendants face considerable pressure to settle any suit that survives the motion to dismiss, regardless of its merit, to avoid the discovery process. (This problem is, of course, not limited to class actions, but it nevertheless provides reason to believe that low-quality class action lawsuits can yield payouts that make bringing them worthwhile.)

Fitzpatrick recognizes this and other dangers (poorly crafted statutory lawsuits, the high-risk nature of defending a class action suit, the potential misalignment of attorneys’ profit motive with effective safety regulation), and proposes reforms designed to reduce them. The most interesting, and perhaps most achievable, of these is the proposal for plaintiffs to have to share the costs of discovery. He concedes that the prospects for these reforms being adopted in the current political environment are dim. But, because his argument for class actions rests on a comparative assessment, this is not a fatal objection. He has set out to show that class action litigation with all its faults is a better option than public enforcement of regulations. Because he has done this, he has made his point. Recognizing that there is room for improvement in the superior option does not undermine the argument that it is the superior option.

As a final comment, I should point out that this book is much shorter than it appears. Of its 265 pages, only 129 are text. The rest consist of notes and the bibliography. This is not a criticism; 129 pages are sufficient to make the author’s argument effectively without padding. This helps make the book an easy read. The extensive notes, which are typical of legal writing, may be ignored by the lay reader without loss of understanding.

Nevertheless, the notes serve a useful purpose. In describing this book as designed to reach a non-expert audience, I do not mean to suggest that it is designed to reach such an audience exclusively. The book is a work of legal scholarship. Like all legal writing, it not only presents an argument for a conclusion, but also performs a service for the profession. Attorneys use legal scholarship to help them create arguments for their clients. Legal academics use legal scholarship to advance their research. The notes in legal texts lead attorneys and legal academics to the sources they need to advance their professional work. A significant part of the value of a legal author’s work is his or her research, which is transmitted through the notes to attorneys and legal academics for their use.

In sum, The Conservative Case for Class Actions is an engaging book on a timely subject that is well-organized and clearly written. It makes a strong case that the optimal form of market regulation is the private civil liability system including class actions, which is what makes it entirely fitting that this review should appear in a journal named Regulation.