Private Law Theory

ABSTRACT
This Article identifies a structural failure in class action litigation: the judicial agency problem. While class counsel’s misaligned incentives have been widely scrutinized, the institutional role of judges, who approve settlements on behalf of absent class members, remains undertheorized. Drawing on fiduciary theory and corporate governance, the Article reconceptualizes judges as institutional fiduciaries and articulates normative duties of loyalty, care, and transparency. It proposes practical reforms to align judicial discretion with representational responsibility and argues that such a shift can restore legitimacy and accountability to collective litigation.

Freidin, Matan, Judicial Agency Problems in Class Actions (June 1, 2025).