« Nixon, Burger, and timing of nominations | Main | Why does it matter (redux)? »

Thursday, March 10, 2016

Scalia & Litigant Autonomy, Part 2

In a previous post, I discussed how Justice Scalia seemed to think laws creating claims for individualized relief generally also vest claim-holders with substantive rights to control their own claims. In this post, I want to explore some problems with substance-izing claim-control.

First, though, here are a few (very significant!) consequences of this Scalia-ian conception of claim-control:

• Once we view claim-control as a substantive entitlement, its tough to see how courts can interpretively extend the scope of mandatory classing (e.g. under Rules 23(b)(1)(B) and 23(b)(2)) much beyond current boundaries without butting up against the Rules Enabling Act’s ban on procedures that alter or abridge substantive rights. 

• Viewing claim-control as a substantive entitlement removes rulemakers’ flexibility to expand mandatory classing via Rules amendments, again thanks to the Enabling Act.

• This conception of claim-control also restricts states—if individualized claim-control rights are embedded in federal rights of action for individualized relief, that leads to reverse Erie constraints on state mandatory class action procedures.

• Conceptualizing claim-control as a substantive right requires conceptualizing the class as an aggregation of individually controlled claims, ratter than as a juridical entity (i.e., a fictive party subject to legal consequences that vest independently of the choices of individual class members). And as my friend and future co-author Andy Trask notes, the Roberts Court has indeed tended to reject the entity model. Yet, even today, there are any number of judge-made rules that seem to accept the entity view of the class. Although some of these penumbral doctrines might be reconcilable with the view that claims confer a substantive control entitlement, others—particularly, the rule that the class counsel represents the class as a whole and so can settle individual class members’ claims over their objections—seem harder to justify in a world of substance-ized claim-control.

Some might respond to this (partial) list of consequences with a shrug: The restriction on mandatory classing is a feature of the theory, not a bug. And if some aspects of class action doctrine are, at the end of the day, inconsistent with a substantive conception of claim-control—this is a problem with these doctrines, not with substance-izing claim-control.

And that response seems totally right!—if rights to control claims are, in fact, part of the underlying right of action. The problem is that substance-izing claim-control rights doesn’t, on closer examination, really wash.

Here’s Ernest Young: “[E]ven in statutory cases, legislative intent about which plaintiffs ought to be permitted to sue will generally be fictional. Congress will not have addressed the problem, and the courts will need to rely largely on default presumptions.” “[T]he Court will need to recognize that it cannot do without prudential rules [that specify who can sue] entirely,” Young continues in another article. “Then the hard work of specifying which prudential rules are legitimate, which are not, and why can begin.” (my emphasis).

Yeah, careful reader, I know--he’s not writing here about class actions. He’s writing about the jurisdictional (and quasi-jurisdictional “prudential”) law of standing. But his point is equally applicable to class action law’s litigant autonomy norm.

The reality (I argue in the first part of this article, which, like this cute puppy, is still looking for its forever home, law review editors) is: Lots and lots of rights of action just don’t specify claim-control rights. And the inferences we can draw about legislative intent from background assumptions are actually pretty inconclusive—its been a long, long time since there was anything like a consensus in our law or legal culture about who, among a class of injured parties, ought to control their claims. That leaves the “usual rule that litigation is conducted by and for the named parties only” looking an awful lot like a judicial custom, informed, like the law of prudential standing, by both constitutional and forum-specific institutional values.

At the end of the day, the Scalia-era equation of that custom with substantive law did some good by reminding courts that they also need to be attentive to case-specific policies of the underlying substantive schemes when thinking about how much control class members should exercise over their own claims. But, even so, turning our attention in this direction answers fewer questions than we hoped—leaving those who want to put the Court’s treatment of litigant autonomy in the law of class actions on firmer footing with lots more work to do.

In a future post, I’ll suggest some overlooked avenues defenders of the Court’s cases might pursue.

Posted by Mark Moller on March 10, 2016 at 01:41 AM in Civil Procedure | Permalink


Thanks, RQA.

I’m bringing in Young to help make the point that the litigant autonomy rule (claim owners usually control their own claims) is best-conceived as a judge-made rule.

How we characterize the formal source of the litigant autonomy rule—is it an entitlement that lawmakers adopt when they created the right of action, or is it, as I’m suggesting, just a judge-made enforcement default--- matters, because it has implications for how broadly or narrowly we interpret the exception to the usual rule, Rule 23. If litigant autonomy is an entitlement conferred by the law that creates a right of action for substantive reasons, that leads to narrow constructions of Rule 23, for reasons I mention in the post. If litigant autonomy is a judicial policy, that opens the door to interpreting Rule 23 more flexibly and broadly, especially if you think (as I do) that due process requires less protection for litigant autonomy that we currently afford it.

Think about the Young articles as a cf. The Lexmark article includes some discussion of the zone of interests test, but also discusses, more broadly, how to conceptualize all of the prudential rules (including the ban on third party standing, which does govern claim-control). In the course of that discussion (and in the other article on Fletcher), he suggests enforcement details, including who is a proper party, often have to be filled in judicially or procedurally, because lawmakers don’t address (or even really think about) those details. They leave them to be fleshed out by courts and forum procedure. That point is helpful, albeit in a general way, introduction to the point I want to make: that federal claim-control rules are, to a not insignificant degree, judge-made.

Posted by: Mark Moller | Mar 10, 2016 6:16:44 PM

I'm not sure I quite follow the logic. The "usual rule" is that when a statute explicitly vests a right in an individual, litigation is conducted by and for named parties; Rule 23 creates an exception. Young is talking about the circumstances under which, absent a statute's explicit creation of a right, a cause of action (again, presumably vested in an individual) should be implied. Granting that there are many instances in which no private right of action will be implied, I don't think that means someone other than the individual "controls" the claim: it means there is no claim. That being so, I don't see why initial uncertainty about whether statutes create private rights of action suggests we shouldn't view control of those rights, once they've been found to exist, in substantive terms.

Posted by: RQA | Mar 10, 2016 2:45:13 PM

Yeah, I know. Creative license! (Plus, I couldn't resist the picture: The puppy looks like it is looking for a forever home.)

Posted by: Mark Moller | Mar 10, 2016 1:14:10 PM

"I argue in the first part of this article, which, like this cute puppy, is still looking for its forever home, law review editors"

That puppy already has a forever home, or so I infer from the photo caption.

Posted by: Asher Steinberg | Mar 10, 2016 11:48:05 AM

The comments to this entry are closed.