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Friday, March 04, 2016

Scalia and Litigant Autonomy

A belated, blawg-y RIP, Justice Scalia. Over my next couple of posts, I want to talk a little bit about Justice Scalia’s legacy in an area where it doesn’t get a ton of play—class actions. Lots of posts around the web already note that Scalia was, of course, the fifth vote in important rulings restricting the class action. Without Scalia, you don’t get the common answers test from Wal-Mart Stores v. Dukes or the majority in Comcast v Behrend. And so on.

But what gets neglected about Scalia is that he seemed to have a pretty distinctive way of conceptualizing  external constraints on the class action, one that has made some inroads on the way proceduralists think about these questions—but also one that has never quite prevailed (which is probably a good thing).

In this post, I’m going to focus on litigant autonomy (for non-proceduralists, this is the term we proceduralists like to use to refer to litigants’ control of their own claims). Protecting that autonomy is, of course, one of the guiding norms of class action law.

As the term “litigant autonomy” itself evidences, lawyers have a tendency to describe the provenance of litigants’ claim-control entitlement in pretty ethereal terms— as a judicially-bestowed liberty that due process requires courts to give litigants for one or more “deep-rooted” normative reasons (dignity, participation, etc.). (There’s also a huge literature, of course, offering various sophisticated ways to theorize litigant autonomy’s normative foundations.)

One of Scalia’s characteristic moves was to push the way we think about autonomy in a positivist direction—to treat litigants’ rights to control their own claims as, first and foremost, a question of substantive law.

It’s a move that paralleled, and really was probably influenced by, the way he approached prudential standing, one of his longstanding bête noires. That might strike some readers as a weird thing to say. Prudential standing and class action law’s litigant autonomy norm aren’t routinely grouped together—partly a product, perhaps, of the accident that prudential standing and class actions often get taught in different classes by different professors.

But, for Scalia, they seemed to be linked—as, really, they should be. One of the three traditional prudential standing limits is “the general prohibition on a litigant’s raising another person’s legal rights.” That general prohibition is, of course, just a re-description of what we proceduralists call litigant autonomy.   And in fact, there’s a deep, but neglected historical link between prudential standing doctrine and the litigant autonomy norm in class action doctrine that’s worth exploring. Take Califano v. Yamasaki’s statement that class actions are an “exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” The passage really echoes the language of the Court’s prudential standing caselaw.

Scalia, in keeping with his general distaste for judicial lawmaking, was, to say the least, not a big fan of prudential standing.   And he ultimately succeeded in killing off two of its legs (the zone of interests test and the ban on assertion of generalized grievances) in Lexmark International v. Static Control Components, while leaving the prudential rule against third party standing on life support.

I can’t describe the bottom line of Lexmark any better than Ernest Young, so here’s his take from his very good article on the case:

Writing in 1988, Professor (now judge) William Fletcher reinterpreted standing doctrine as grounded in the substance of the plaintiff’s claim—not in general principles emanating from Article III. “Standing,” Fletcher wrote, “should simply be a question on the merits of plaintiff’s claim;” hence, “[t]he essence of a true standing question is the following: Does the plaintiff have a legal right to judicial enforcement of an asserted legal duty?” It followed that “[t]his question should be seen as a question of substantive law, answerable by reference to the statutory or constitutional provision whose protection is invoked.” Fletcher urged that this inquiry should replace the traditional constitutional requirements courts had found in Article III, such as injury-in-fact, and that position remains heresy at the Supreme Court. But one may fairly read Lexmark as adopting Fletcher’s analysis for purposes of prudential standing. The thrust of Justice Scalia’s opinion, after all, is to replace general, judge-made notions of prudence with a substantive inquiry into the intent of particular statutory provisions. (emphasis mine).

This was also largely the answer Scalia seemed to give when he turned, in recent class action cases, to the provenance of litigants’ autonomy or claim-control rights. Take Shady Grove Orthopedics v. Allstate, where he implied that eliminating opt out rights for damages claims would abridge class-members' “substantive rights,” contra the Rules Enabling Act. Sergio Campos suggested, in this excellent article, that Scalia here was treating claim-control entitlements as one of a bundle of substantive entitlements conferred by rights of action. Viewing this allusive passage next to Lexmark really drives home, I think, the rightness of that reading.

For Scalia, deriving individualized claim-control rights from the substantive law was pretty straightforward. Historically, in personam-type rights to individualized remedies were controlled by the right-holder. Against the backdrop of this historical practice, it only makes sense to assume that when a statute creates a personal right to individual compensatory damages and says nothing about allocation of claim-control entitlements, it intends to vest those entitlements in the traditional way.

This approach holds out the usual Scalia-ian promise that we can excise judicial value judgments, solve questions about the allocation of claim-control rights through ordinary legal science, while shifting that allocative decision, in the first instance, to the accountable political process. It doesn’t eliminate due process from the equation—lawmakers’ ability to override the claim-control norm is of course subject to due process limits (that remain fuzzily-limned in the caselaw).  But because the claim-control limit is already embedded in substantive law, the scope of those limits isn’t something that courts have to wade into.

To my mind, there’s some appeal to this approach. But it also creates some perplexing problems for class action law, which I’ll explore in a subsequent post.

Posted by Mark Moller on March 4, 2016 at 03:33 PM in Civil Procedure | Permalink

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