Libertarians and the Public Interest Class Action

    In my previous post, I suggested that there is a seeming disconnect between libertarian priors and the real-world class action reform advocacy of DC libertarian organizations. In this post, I’ll illustrate that point, in a provisional way, through a case study.  This one focuses on the Fairness in Class Action Litigation Act (FICALA) 1.0, introduced in 2015.  (This was the precursor of the current bill before Congress.) 

    The original version of the FICALA was not well-drafted, to the say the least.

     As originally introduced, it provided as follows:

No Federal court shall certify any proposed class unless the party seeking to maintain a class action affirmatively demonstrates through admissible evidentiary proof that each proposed class member suffered an injury of the same type and extent as the injury of the named class representative or representatives

    Subsequent alterations narrowed the same injury requirement to claims for monetary relief.  But the fact that the language was proposed at all is troubling.

    Critics noted several problems.  Let me focus on just one: As Alexandra Lahav testified, “All injunctive actions would be affected by this bill the way it is written. . . . I do not see a way around that.”  That’s, of course, a natural implication of the bill’s all-encompassing language:  “[I]it says,” noted Lahav, that “ no Federal court shall certify any proposed class” unless each class member suffered the same type and extent of injury.

    What’s wrong with that? 

    Well, injunctive classes, as David Marcus notes here, often target systematic wrongdoing that bureaucratically “distributes” harm in different ways.  David gives the classic example of  a state custom of deliberate indifference to prisoners’ medical needs.

    That custom may spawn different types of harms in different prisons.  For example, writes David, one prison warden “might implement a policy to provide for emergency medical care for inmates injured in prison fights. But his prison might neglect the medical care of inmates with diabetes, a failing made possible by the [state custom of] indifferent management” of local prison conditions.  Another warden “might have an adequate insulin protocol in place but ignore mental health needs of inmates in solitary confinement.” 

    Prisoners at these prisons—the diabetic prisoner denied insulin and the prisoner suffering from solitary confinement—have palpably different “types” of injuries, but are victims of the same systemic problem of indifferent state management.  Read one way, the 2015 bill would prevent one or a few prisoners from challenging the system-wide policy—it would rather require recruiting named plaintiffs that represent every discrete category of harm emanating from the alleged systemic failure, or, instead, relegate lawyers to the slow grind of targeting the custom piecemeal. 

    Was that an aim of the original bill? 

    It’s hard to say. 

    Best case: the bill simply was not well thought out in its early stages. Worst case:  the bill was a failed bid to smuggle in the constraints on public interest class actions that have grown up willy nilly since Wal-Mart Stores v. Dukes.  Indeed, as David Marcus details in the article referenced above, a series of post-Dukes (b)(2) injunctive class actions have foundered thanks to lower court rulings rejecting injunctive classes due to a lack of “near-perfect identity among class members’ experiences.”   Whatever may have been intended, the original bill sure looked an awful lot an attempt to codify this caselaw.

    “So what?,” you might say.  After all, Congress eventually changed the same injury language of the 2015 bill to limit the provision to class monetary claims —and the new version of the bill introduced in this Congress retains that focus.

     But the episode, while it turned out to be  just an initial bump on the road to the current version of the bill, is telling.

    The grist of public interest litigation against governmental defendants —systemic government wrongdoing, like prisoner abuse--is certainly something that engages many libertarians.  But while progressive public interest advocacy organizations rightly raised a hue and cry about the original blunderbuss language (Lahav called it a “terrible” bill), class action mavens in DC libertarian-leaning organizations seemed to mostly shrug off these concerns.  Prominent representatives of these groups echoed, instead, the (to-my-mind unpersuasive) claims of the corporate defense bar that civil rights groups were overreacting.

    It’s a small episode, but one that reinforces my point from my earlier post.  Despite what would seem to be a natural affinity, at least in governmental public interest litigation, between libertarians and the plaintiffs’ bar, institutional libertarians’ class action reform advocacy seemed more in tune with the corporate defense wavelength. 

    In the next post— I’ll turn to take a look at the Fairness in Class Action Litigation Reform Act 2.0. Here again, we’ll find the legal reform wing of institutional libertarianism seems overly sanguine about an improved but still problematic bill.