Due Process and Wal-Mart

This will be my last post on Wal-Mart, and although much more can be said about the decision, I want to focus on its ramifications for the law of procedural due process.  As I mentioned in an earlier post, Wal-Mart is part of a clear shift in favor of giving defendant's rights greater protection under the Due Process Clause.  But, as many have noted, the resulting doctrine is at odds with "ensuring accountability and effective enforcement in a wide variety of areas."  Indeed, as scholars recognized in the Court's earlier plurality opinion in Shady Grove, the Court "dismisses the proposition that a court should look to the policies embodied in the underlying substantive law when deciding whether class certification is appropriate."  Perhaps it is not a coincidence that Justice Scalia wrote the plurality in both Shady Grove and Wal-Mart.

I agree with these criticisms, but, building on my complaint that academics sometimes overcomplicate things, I am not sure it is helpful to frame the issue as one of "accountability" or "policies" versus "rights."  Framed in this way, the Court could easily respond that due process rights trump everytime.  Why not?  We're talking about the Constitution here!  Instead, and as I argue in my recent paper Mass Torts and Due Process (which is still looking for a home, law review editors!), I would say that the Court focuses on the wrong rights!    

I willingly concede that defendants have a "right" to such things as a trial by jury and affirmative defenses.  If a plaintiff has a property interest in a claim, why not recognize defenses as a form of property?  But we don't have these rights in a vacuum.  Instead, as famously recognized by Calabresi and Melamed, rights like claims or defenses are provided to protect other rights.  The Wal-Mart women have a claim under Title VII because "Congress has cast the Title VII plaintiff in the role of 'a private attorney general,' vindicating a policy 'of the highest priority.'"  Okay, so the Court also uses terms like "policy," but just what exactly is that "policy?"  Protecting a woman's right to be free from gender discrimination!  In other words, the claim is given to potential plaintiffs to protect a higher order right - a right against unlawful discrimination!  Understood in this way, Wal-Mart is not a case about "policy" versus "rights," or "groups" versus "individuals," or "substance" versus "procedure."  It is about two rights that can come into conflict!  It's rights versus rights!

But again, shouldn't the due process right reign supreme?  Not necessarily so.  As I discuss in my paper and in a recent debate on mass torts for Penn Law Review, a Court has to balance these rights, not identify them and protect them blindly.  And sometimes "due process" rights like control over the claim (so-called "litigant autonomy") or affirmative defenses have to give way if they lead to absurd and self-defeating results.

The key case is Mullane v. Central Hanover Bank & Trust Co.  There the Supreme Court reviewed a New York state banking law that authorized the aggregation of trusts with small assets into "common fund trusts" for common administration.  At issue was a provision for periodic accountings in which a court would review any claims against the administrator for breaching its fiduciary duties.  The accountings would settle all claims, but only provided notice to beneficiaries through a small ad in the newspaper.  The Supreme Court found the notice inadequate, saying in no uncertain terms that "a fundamental prerequisite of due process is an opportunity to be heard," which entails "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."  

So the Court ruled that each of the beneficiaries were entitled to individual, hand-delivered notice of the proceedings, right?  Wrong!  First, the Court said that newspaper notice was a-ok for beneficiaries that could not be located easily, like those with unknown addresses who only had a contingent and "remote" interest in the assets.  Otherwise, requiring more notice would be so expensive that it would "dissipate [the] advantages" of common fund trusts.  Second, the Court only required mail notice to those with known addresses, since "[t]he individual interest does not stand alone, but is identical with that of a class."   According to the Court, those who receive notice and choose to appear will adequately represent the interests of those who do not receive notice.

The lesson of Mullane is that due process rights like "notice" or a "defense," even if "fundamental prerequisites of due process," sometimes have to be diminished if they undermine the very rights they are meant to protect.  I mean, who wants "notice" for an accounting to settle claims against a common fund trust administrator if there are no common fund trusts?  Due process does not stand in the way to such absurdities.  More importantly, there is no need to resort to fancy concepts like "substantive policy" or "enforcement" to reach that simple lesson in Mullane.

Accordingly, I hope the Court does not use the recognition of a defendant's due process rights to undermine the whole point of Title VII, which again is to protect the plaintiff's "individual rights" against discrimination.  But I am both hopeful and a bit dismayed.  In Turner v. Rogers, for example, the Court engaged in the kind of balancing of competing rights I endorse here, where the Court considered competing procedures for protecting the rights of a deadbeat dad subjected to civil contempt for failing to pay child support.  At the same time, I also agreed with Justice Thomas that the Court's narrow focus on the "liberty interests" of the dad in avoiding incarceration failed to consider the rights of the mom in getting child support.  I mean, that was the whole point of the civil contempt procedure - ensuring timely payment!

 This is not to say that the Court did not get the right answer in Turner v. Rogers, and I certainly disagree with Justice Thomas's ultimate view that no such balancing should occur.  But the Court cannot ignore why we have certain procedural rights like contempt proceedings in the first place.  We sometimes forget that we have procedural rights to protect substantive rights, and to ignore those higher-order rights is to put the cart before the horse.