Constitutional Law

Liberal Law Prof Thrills Conservatives with Claim of Class Action 'Pathologies'

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A respected senior academic known for his groundbreaking theory, while still a third-year law student at Harvard University in 1970, that the constitution protects corporate speech is making another novel argument.

And, ironically, the argument by Martin Redish, a longtime Northwestern University law professor whose personal political leanings are liberal, is music to the ears of conservatives, reports Forbes.

His current theory is that class actions may be unconstitutional. Citing “pathologies” in the process, including a lack of strategic decision-making—or even knowledge of the litigation—by members of the plaintiffs group, he contends that the current class action system may unconstitutionally rescind individuals’ rights to seek redress on their own.

“You have injured people, but they’re basically comatose,” Redish, who is now 64, tells Forbes. “They don’t know about the class action, they don’t care, and they are unlikely to be compensated.”

To corporate opponents of class actions, however, his argument also implicates an even more crucial concern—the hefty attorney fees that successful plaintiffs attorneys can earn, the magazine recounts. They amount to some $600 million annually for just one segment of the profitable complex litigation arena, securities class actions.

Stephen Presser, a longtime Northwestern colleague whose personal politics are conservative, says it’s unusual for a law professor’s personal views to be so separated from his academic work, Forbes notes. Joking, he suggests that Redish “man up and just become a Republican.”

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