Class Actions in the Administrative State: Kalven and Rosenfield Revisited

“First movers” in many enterprises gain an advantage simply by being first. Published in 1941, Harry Kalven, Jr., and Maurice Rosenfield’s Article, The Contemporary Function of the Class Suit, offered the first major analysis of the class action device in institutional terms. The Article would occupy the field for more than a decade, until the emergence of a new generation of commentary spurred by the adoption in 1966 of Rule 23 of the Federal Rules of Civil Procedure in its modern form. That the Article should have become one of the most cited in the annals of both class action scholarship and The University of Chicago Law Review is not merely the product of first-mover status, however. Writing amid the emergence of the New Deal administrative state, Kalven and Rosenfield captured the relationship between two central features of the civil litigation landscape that continue to shape debates today: the notion of negative-value claims and the limited enforcement capacity of public administrative agencies.