[Excerpt] “Imagine that you are a legal aid lawyer in America whose services are funded by the Federal Legal Services Corporation (LSC). You interview a prospective client and learn that she was recently laid off from her job; she applied for and was denied Unemployment Insurance (UI) benefits by the state; and she is in a desperate financial situation. You accept the client’s case to determine whether she has a legal basis to challenge the denial of her UI claim. You research your client’s problem and form the opinion that the denial of her UI claim was based on a provision of state law that conflicts with a superior federal law. You also realize that thousands of other needy state residents are likely denied UI benefits each year for the same reason as your client and that the amount of UI financial assistance that they lose as a result may be in the millions of dollars. You discuss your research with your client and she desires to pursue litigation that will not only seek a judicial remedy for herself but also for the other state residents who face the same problem. The obvious judicial avenue for your client to pursue is a class action4 case against the state, but you cannot file such a case because a 1996 federal law prohibits you from participating in class actions.
The purpose of this article is to examine the policy justifications for the 1996 federal law that prohibits lawyers and legal assistance organizations funded by LSC from initiating or participating in class action litigation. No other attorneys in America who engage in civil litigation are barred by law from representing their clients in class action cases. This article will consider whether this prohibition is justified for LSC-funded attorneys. It will also explore the consequences of the prohibition for low income persons and for American society. This examination of the policy justifications for the class action prohibition will be done in the context of a review of Pennington v. Doherty, a typical class action case filed on behalf of low-income persons.”
Henry Rose, Class Actions and the Poor, 6 Pierce L. Rev. 55 (2007), available at http://scholars.unh.edu/unh_lr/vol6/iss1/4