A lingering issue in class action law concerns the case or controversy requirement of Article III, otherwise known as the requirement of justiciability. For purposes of justiciability doctrines such as standing, mootness, and ripeness, is the class action brought by all class members, some class members, or just the class representative? This Article argues that the answer should be none of the above—it should be the class attorney. This Article first shows that the function of the class action is to assign dispositive control of, and a partial beneficial interest in, the class members’ claims to the class attorney. This Article then shows that the current law of justiciability provides some support for viewing the class attorney as the relevant party for Article III purposes. This Article concludes by exploring what lessons the trust function of the class action can provide for the law of justiciability. This Article ultimately argues that the law’s insistence on a personal injury to satisfy justiciability requirements like standing is misplaced. Federal courts instead should focus on ensuring the adequate representation of all the interests affected by their exercise of jurisdiction.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital