This essay sketches a Rawlsian defense of allowing subsequent challenges to class action settlements, as in the Stephenson agent orange case and the Homeside Bank Boston case. My normative claim is that the Rawlsian original position is a helpful way of thinking about what a fair distribution among class members entails that is, we should ask whether a settlement conceivably could have been agreed to by class members standing behind a veil of ignorance as to what their particular position or place within the class would be beyond the veil. Subsequent challenges to settlements should be permitted where no reasonable class member standing behind the veil of ignorance, employing maximum decisionmaking, would have consented to the settlement. I also argue that proposed reforms in the manner by which judges approve class action settlements, while perhaps sensible, will not eliminate the problem of inadequate representation, and that the availability of such subsequent challenges based on inadequacy of representation will not appreciably reduce the settlement rate in class actions or otherwise destroy the class action as a dispute resolution mechanism.

Date of this Version

June 2004