The Chief on Law & Policy

Chief Justice John Roberts served as a moot court judge at Columbia last week.  One of the issues in the case was whether an issue class action could be certified.

The Chief Justice’s questions to the students (as reported by Adam Liptak of the New York Times) may have given us some insights into his view of class actions:

“A class action is a dramatic departure from the normal rules oflitigation,” he said. He asked one student whether the practical impactof allowing a class action was not merely to grant the plaintiffleverage in settlement talks.

Discussing a federal law thatrequires states to run medical programs “consistent with efficiency,economy and quality of care,” Chief Justice Roberts sounded exasperated.

“Howin the world is a judge supposed to apply those terms — economy,efficiency?” he asked. “Those sound like legislative judgments.”

I wonder if this means that he espouses the “blackmail” theory of class actions.  (For an excellent refutation of that theory, see Charles Silver, “We’re Scared to Death:” Class Certification and Blackmail, 78 N.Y.U. L. Rev. 1357 (2003) – you can also find a version of the same paper here on SSRN).

ADL