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Mandatory class actions-those for which no right to opt out exists -are unique in the law. They define the rights and duties of absent parties through compelled participation and inextricably join the interests of class members toward a common end. As the incidence and importance of class actions multiply, so should concerns about them. Class actions are being used with increasing frequency by litigants, and they have become a powerful device for relieving overloaded judicial dockets.3 As a result, a potential conflict arises between the judiciary's interest in handling a burdensome caseload efficiently and the individual interests of persons who would prefer to assert their legal rights independently, or not at all. Until now, the Due Process Clause has provided the sole analytic framework for courts considering class actions in constitutional terms. In fact, the Supreme Court has indicated an interest in considering the scope of the opt-out right under a due process analysis,4 although it has not yet heard a case on point.

The Right Not to Sue: A First Amendment Rationale for Opting out of Mandatory Class Actions