Class action lawsuits descend from medieval English villages suing as one
From about 1200, English courts routinely let whole villages, parishes and guilds sue or be sued as a single body, and nobody questioned it. Roads, messengers and royal officials were too weak for the Crown to deal with people one by one. That habit of group justice faded in England but found an unexpected second life in American law.
Between 1400 and 1700 group litigation slid from normal to unusual in England. Wealthy backers of the new corporate form grew wary of unincorporated bodies, and during stretches when the common law courts were paralysed, the Court of Chancery took sole charge of group cases. As society grew more individualistic its rulings became muddled, and after Parliament passed targeted laws for bodies such as joint-stock companies, the practice had essentially died out in Britain by 1850.
It crossed the Atlantic almost by accident. Supreme Court Justice Joseph Story described it in his equity treatises and an 1820 opinion, West v. Randall, without really grasping the old Chancery cases. Equity Rule 48 of 1842 allowed representative suits when parties were too numerous to gather, but it could not bind absent people, which made it nearly useless. The rule became Equity Rule 38 in 1912 and then Rule 23 of the federal civil procedure rules in 1938.
The real turning point came in 1966, when a rewrite of Rule 23 made opting out the default: everyone in the defined group is bound unless they ask to leave. Its drafters were swayed by a 1941 proposal from Harry Kalven Jr. and Maurice Rosenfield that shareholder suits could supplement securities regulation, and by the civil rights, environmental and consumer movements, which embraced the tool. One scholar called the result the most extreme form of collective civil litigation anywhere.
Such suits typically involve at least 40 people harmed in the same way by one defendant. Companies have fought back through arbitration, adding collective action waivers to consumer contracts, which the Supreme Court upheld 5–4 in AT&T Mobility v. Concepcion in 2011.
Source: Class action
