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Publication Date

2017

Abstract

Class counsel and prosecutors have a lot more in
common than scholars realize. Because these lawyers
have to make decisions on their client's behalf that clients
would make in other contexts, they prompt substantial
concerns about lawyers' accountability to their clients.
Accordingly, there is a lot that each context can learn from
the other about how to hold these lawyers accountable.
This Article considers what criminal law can learn from
class action law. Its central insights are first that diffuse
entities comprised largely of apathetic individuals cannot
be expected to hold their lawyers accountable. And second,
to combat that accountability deficit, just as judges play
an important role in holding class counsel accountable, so
too should judges play an important role holding
prosecutors accountable-both to their public-clients and
their constitutional obligations.
In more concrete terms, this Article contends that once a
plea agreement has been reached, courts should
substantively review the sentence that the parties
recommend with an eye to the process that yielded the
agreement, much as courts review class action settlements.
As with class members in class actions, courts should
afford opportunities to be heard to those who wish to
contest the deal to inform the court's review. If courts are
hamstrung at sentencing by prosecutors' charging
decisions that they think inappropriate, judges should
articulate their concerns and ask prosecutors to justify
those decisions on the record in open court to facilitate
accountability by the electorate and within prosecutor
offices.

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