Jewish World Review July 1, 2004 / 12 Tamuz 5764

Wendy McElroy

Wendy McElroy
JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
James Glassman
Paul Greenberg
Bob Greene
Betsy Hart
Nat Hentoff
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
Michelle Malkin
Jackie Mason
Chris Matthews
Michael Medved
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Roger Simon
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports

Jackpot Justice, the Wal-Mart suit | Wal-Mart is facing the largest class action lawsuit ever been brought against a private company. As many as 1.6 million women may join the suit and the possible payout could exceed $1 billion dollars. What are class action lawsuits, and why have they become so prominent in the news?

Class action lawsuits are an aspect of tort law, which addresses harm or loss that is caused either deliberately or through carelessness by the actions of another. A class action suit is brought by one or more plaintiffs on behalf of a larger group that has a common interest, a common harm. For example, if a product is defective and injures a consumer, that consumer can bring suit against the producer on behalf of all consumers similarly injured. After attorneys' fees, any settlement or court award is divided among those participating in the suit.

In the Wal-Mart case, six women filed the original action in June 2001, claiming that the giant retailer discriminated against women in salaries and promotions. Approximately 1.6 million women who have worked for Wal-Mart since 1998 are eligible to join the suit.

There are several reasons why class action lawsuits have proliferated over the last few decades. Changes in legal procedure have favored the growth.

A comprehensive study from the Rand Institute for Justice entitled "Class Action Dilemmas, Pursuing Public Goals for Private Gains" explains one such change. "[T]he current controversy over class action roared to life in 1966 when Rule 23, the procedural rule that provides for class actions in federal courts, was significantly revised. ...Whereas previously, all individuals seeking money damages with a class action lawsuit needed to sign on affirmatively ('opt in'), now those whom the plaintiffs claimed to represent would be deemed part of the lawsuit unless they explicitly withdrew ('opted out')."

In an instant, the scope of lawsuits and the financial liability of defendants "multiplied many times over." (Rule 23 has been subsequently amended, largely to increase the role of judges in every aspect of class action suits.)

In short, class action suits became tremendously more profitable, especially for lawyers whose contingency fees sometimes exceeded the money paid out to successful plaintiffs. Contingency fees are commonly viewed as a necessary device by which poor plaintiffs can access the court system. In 1971, the Florida Supreme Court stated, "It is irrefutable that the poor and the least fortunate in our society enjoy access to our courts, in part, because of the existence of the contingency fee."

But the excesses of contingency fees have become infamous, leading critics to label class action suits as "jackpot justice" for lawyers. One critic is Supreme Court Justice Sandra Day O'Connor who has spoken out against "out-of-control class action lawsuits and outrageous contingency fees, which have turned some lawyers into 'overnight millionaires.'"

Donate to JWR

A recent class action suit against a Hooters restaurant in Augusta, Ga., is just one example among many. Over 1,300 plaintiffs sued Hooters for sending out six unsolicited fax advertisements. Although the faxes had been actually sent by a third party with whom Hooters had contracted, the court awarded the plaintiffs $12 million. Each plaintiff was to receive $6,000, with lawyers claiming $4 million.

The Hooters in question subsequently filed for bankruptcy protection, thus validating a common objection to class action suits: they bankrupt businesses, sometimes frivolously.

But much more than monetary profit is involved in the growth of class action suits. The lawsuits have become a vehicle for social reform. Those who advocate class action suits often present them as part of a larger crusade for grassroots justice in the face of corrupt corporations and the wealthy (e.g. physicians). The movie "Erin Brockovich" exemplifies this representation.

The recent decision that a class action suit can proceed against Wal-Mart seems to be cut from this cloth. In his 84-page ruling, Judge Martin Jenkins of the notoriously liberal U.S. District Court in San Francisco called the case "historic in nature, dwarfing other employment discrimination cases that came before." He compared the case to Brown v. Board of Education, the 1954 case that ended racial discrimination in schools.

Martin wrote, "This anniversary [of Brown] serves as a reminder of the importance of the courts in addressing the denial of equal treatment under the law whenever and by whomever it occurs." Those words are more appropriate to a social reformer rather than to a judge who has neutrally weighed the merits of a case.

The court as social reformer is often given support by media eager to maximize publicity. For example, an editorial in the Chicago Sun-Times was titled "Class action could finally put women on fast track."

The merits of the Wal-Mart case are blurred by association with a broader political cause. The case is as much or more a piece of social reform than it is restitution for injured individuals. This is one of the main criticisms aimed at class action lawsuits and reform-minded judges. Namely, that unelected courts -- including lawyers and juries -- are going far beyond their jurisdiction of providing remedies to specific individuals. They are usurping the function of lawmakers.

Phyllis Schafly's latest book, "The Supremacists: The Tyranny of Judges -- and How to Stop It" addresses this issue. A blurb on the book cover reads, "The gravest threat to American democracy is the supreme power of judges over political, social, and economic policy."

No one knows how to definitively resolve the abuses and dangers of class action suits without denying the underdog access to the courts. A good first step, however, would be to require participants to "opt in," to limit contingency fees for lawyers, and reduce the jurisdiction of judges.

Every weekday publishes what many in Washington and in the media consider "must reading." Sign up for the daily JWR update. It's free. Just click here.

JWR contributor Wendy McElroy is the editor of She also edited Freedom, Feminism, and the State (Independent Institute, 1999) and Sexual Correctness: The Gender Feminist Attack on Women (McFarland, 1996). She lives with her husband in Canada. Comment by clicking here.


06/24/04: The decline of affirmative action
06/10/04: How to form an informed opinion
05/13/04: Do fraternities deserve their bad reputations?
04/30/04: Facts or propaganda? Deconstructing advocacy
03/26/04: Reading between the numbers
03/11/04: When ‘mother’ is a bureaucracy
03/04/04: Do Gun Control Activists Pad Gun Death Statistics?
02/26/04: The Separation of School and State
01/21/04: A Man's (and Woman's) Home Is a Castle
12/17/04: The Conservative Cookie Rebellion
11/26/03: Zero Patience for Zero Tolerance
10/22/03: Killing the Good Samaritan
10/08/03: Collective western guilt burdens today's children
10/01/03: Families pay price for government spending
09/24/03: Do Poor Fathers Deserve Debtors' Prison?
08/29/03: Going to extremes
08/23/03: The Marriage Strike
07/30/03: University Students Deserve Human Rights
07/09/03: The PCspeak of Diversity
07/02/03: Rebuttable presumption of joint custody
06/18/03: A Conscientious Objector to the Gender War
06/04/03: Gender issues impacted by masculinists
05/28/03: The value of error
05/21/03: U.S. to Fund Gender Feminism in Africa?
05/14/03: Cut men: Do they not bleed?
05/07/03: Women with guns fight back
04/30/03: No oil for food
04/28/03: The Great Lie
04/16/03: War may redefine gun control
04/09/03: Why we must discuss a post-war U.S.
04/02/03: Leftist feminists using war as podium
03/26/03: Laying down 'the white woman's burden'
03/19/03: Iraq War may kill feminism as we know it
03/13/03: A woman to replace Saddam
02/19/03: Elder abuse demands family solutions
02/13/03: Iraqi women brutalized by Saddam
01/29/03: There ought not to be a law
01/22/03: Gambling with race and gender cards
01/02/03: The future of fatherhood
12/26/02: U.N. complicit in forced sterilizations
12/20/02: Compassion, kindness killed by fear, paranoia
12/11/02: Affirmative action insults immigrant contributions
12/04/02: Stand up for yourself
11/27/02: Feminist fighting: Aren't we all women?
11/20/02: Rights & responsibilities
11/14/02: Feminist "urban legends"
11/06/02: Equal access does not guarantee equal outcome
10/24/02: Battered Women's Syndrome: Science or sham?
10/17/02: I demand a civil society that respects the individual and acknowledges the existence of honest disagreement between human beings of good will
10/09/02: Abortion debate is about to be ratcheted up yet again
10/02/02: 'Restorative justice' offers battered women more options
09/25/02: Why is prez promising to embrace UN radical social engineering programs?
09/18/02: Dirty dealings kill men's panel
09/11/02: Taking back your power
09/05/02: Calm down, Hootie!
08/21/02: Will Congress empower a group of radical feminists to oversee money slated for Afghan women?
08/14/02: Empower the U.N. with power to sculpt American laws and institutions into the image of gender feminism!?
08/01/02: Practicing 'intellectual virtue'
07/24/02: All male, bad. All female, good: Your tax dollars at work
07/11/02: Put Up or Shut Up
07/03/02: NOW they've done it, again!
06/19/02: A dark cloud shades U.N. Women's Treaty
06/10/02: This Father's Day, send justice
05/31/02: When good women do nothing
05/28/02: Feminists claiming motherhood as liberal cause
05/20/02: Wounds in health care system are self-inflicted: Or, why "my son the lawyer" makes more sense
05/10/02: Are parents boycotting public schools?
05/03/02: Women can't be gun-shy about defense
04/25/02: The Bill of Intellectual Rights
04/19/02: World Bank or World Government?: The World Bank is blackmailing impoverished nations
04/12/02: Victims From Birth: Engineering Defects in Helpless Children Crosses the Line
04/05/02: The professor made me cry, now I will make him pay!
03/31/02: Doctors and teens --- parents be on guard
03/22/02: I was born, now I'm suing you!
03/15/02: The 21st Century is knocking at the barricaded door of feminism
03/08/02: Fun and games at the Ms mag Bulletin Board
03/01/02: Andrea Yates, NOW, and Feminist Jurisprudence
02/22/02: Lady, Your Slip is Showing
02/14/02: 'Abusing' Valentine's Day
02/11/02: Is NOW Pro-Choice or Pro-Abortion?
02/01/02: Are 'fathers' rights' a factor in male suicide?
01/25/02: Is the U.N. Running Brothels in Bosnia?
01/18/02: 'Freedom' at another's (moral) expense
01/11/02: Feminists hit Ground Zero with WTC funds grab
01/04/02: Males winning "diversity discrimination" cases is good?
12/21/01: Good will toward men
12/14/01: "Boss Tweed" feminism
12/07/01: Call me 'anti-woman'

© 2004, Wendy McElroy