Professor Silver advocates recognition of an inherent judicial power to send or authorize notice of pending litigation to potentially interested persons with unfiled claims. Recognizing such a judicial power is consistent with recent legal developments establishing a role for judges in expediting and managing federal litigation. Although the Federal Rules of Civil Procedure only explicitly provide for notice to potential parties in Rule 23 class action litigation, Professor Silver demonstrates that a more general judicial power to notify putative plaintiffs is consistent with the federal rules and the Constitution. She also shows that first amendment values support a judicial role in providing notice. Finally, the judiciary's role in protecting the disadvantaged, the public interest in private actions arising from mass torts and other collective actions, and the conservation of both public and private resources resulting from case consolidation, justify the federal district court's inherent power to send or authorize notice to putative plaintiffs.
Majorie A. Silver,
Giving Notice: An Argument for Notification of Putative Plaintiffs in Complex Litigation,
66 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol66/iss3/4