In Attorneys' Fees and the Social Legitimacy of Class Actions, Professor David Marcus responds to Brian Fitzpatrick's proposals in Do Class Action Lawyers Make Too Little? Professor Marcus contends that while Fitzpatrick's proposal—that in certain class actions, attorneys should be permitted to take 100% of the class recovery—is intriguing and may be beneficial, it runs afoul of current law and may otherwise not be a prudent policy. First, Marcus argues that Civil Rule 23(h) cannot be construed to allow these payments within the terms of the Rules Enabling Act, as claim assignment law is substantive and not procedural. Next, Marcus doubts that the doctrine of unjust enrichment could be stretched to permit such fee awards. Marcus then turns to Fitzpatrick's utilitarian arguments justifying higher fee awards, and finds that merely adjusting the substantive law would not be likely to ensure optimal deterrence of bad actors, as Fitzpatrick suggests. As a result, Marcus argues, an explosion in fee awards would upset a careful substantive and procedural balance struck by current law. Finally, Marcus notes that “a spate of clientless cases” might undermine the legitimacy of class actions themselves. He concludes by acknowledging the attractiveness of Fitzpatrick's proposals but positing that to the extent that aggregate litigation is intended to preserve fundamental “day in court” ideals, current fee awards may be entirely appropriate.
Volume 159 Issue 1 2011 Response