NOTHING MORE EPITOMIZES THE ASCENDANCY OF THE contingency fee into the pantheon of elemental forces driving our legal and political systems than the contingency-fee-driven class action. In a class action, a lawyer representing a single person or a small handful of people – who claim to stand for hundreds, thousands, or even millions of similarly situated persons – asserts that the defendant caused the entire “class” physical or economic injury.

A change in procedural law forty years ago transformed class actions from a sleepy backwater of legal activity into one of the greatest money-making mechanisms ever invented. A 1966 amendment to Rule 23 of the Federal Rules of Civil Procedure, which initiated this change, allowed lawyers to assemble huge numbers of consumers into a collective (class) action, subject to the right, in most class actions, of anyone so conscripted to “opt out” by filing with the court. Prior to the amendment, class actions could only be formed if claimants opted in – that is, affirmatively elected to join the litigation. After 1966, those conscripted into the class formed by a plaintiff's lawyer remain included in the litigation unless they affirmatively take steps to exclude themselves.

The rule makers responsible for the change saw it as modest procedural reform and did not expect it to profoundly affect the litigation landscape. In particular, they did not view the changes as affecting such large-scale personal injury litigation as mass torts.