Abstract: Lawmakers, courts, and legal scholars have long recognized that
consolidating the claims of dispersed plaintiffs with similar
grievances may promote justice and efficiency. In this Article, we
argue that justice and efficiency also mandate that similarly
positioned defendants be provided with an adequate procedure for
consolidating their claims. We explore the circumstances under
which costly litigation and collective action problems will prevent
dispersed defendants with plausibly valid defense claims from
confronting plaintiffs in court and analyze the troubling fairness and
deterrence implications of such failure. We then demonstrate that
aggregating claims will rectify the imbalance between the common
plaintiff and defendants. To achieve defendant consolidation, we
propose to implement what we label as the class defense device. We
outline the novel features that will make the class defense both
effective and fair—i.e., that will provide class attorneys with proper
incentives, adequately protect the due process rights of absentee
defendants, and keep to a minimum the omnipresent risk of collusion.
Finally, we show that the class defense procedure affords would-be
defendants greater protection than its alternatives. Specifically, we
demonstrate that the class defense is a superior framework for
resolving many disputes—such as lawsuits against credit card and
cable companies—that currently take the form of class actions.