What can we learn from including class members’ voices in the process of approving settled class actions? How does the opportunity provided to class members to participate in a public hearing relate to the inherent tension between individualism and the goals of aggregate litigation? Employing a unique methodology for analyzing court transcripts and using original data, this paper provides a renewed and rich depiction of the fairness hearing—a public hearing mandated by the Federal Rules of Civil Procedure—which is held before the court can approve a settlement in a class action. Situated both within socio-legal studies and mass litigation scholarship, the following analysis combines empirical questions concerning the actual function of the fairness hearing within the class action mechanism, with broader questions concerning the participation of lay people within legal procedures. Based on an analysis of hearings held in three class actions, I make the claim that while the participation of individual class members in these events may not have a strong legal impact—by means of influencing the legal outcome—it still has a significant socio-legal meaning, in, among other things, providing an opportunity for interaction between lay and legal actors, offering a forum for public deliberation, challenging the boundaries of legal discourse, and leaving an historical account of the significant events that lie at the heart of many class actions.
"On Individual Participation within Mass Litigation: The Case of the Fairness Hearing,"
Akron Law Review: Vol. 52
, Article 4.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol52/iss4/4