Aggregation and constitutional rights.

• Author: Garrett, Brandon L.
• Position: Introduction to II. Individualized and Aggregated Constitutional Rights, p. 593-616

Constitutional rights can impact large groups, yet most plaintiffs in civil rights cases bring individual claims. Critics of the Supreme Court's decisions regarding class actions, such as Wal-Mart Stores, Inc. v. Dukes, (1) have argued that the Court adopts unduly restrictive interpretations of class action procedures. I trace the problem deeper into the substance of constitutional doctrine. The Court has defined certain constitutional rights to require highly individualized inquiries. For example, Fourth Amendment excessive force claims, the bread and butter of constitutional tort litigation, often require an individual analysis of the reasonableness of the search. As a result, courts may deny class certification citing to a lack of common issues. Other constitutional rights--ranging from due process rights, criminal procedure rights, equal protection claims, and takings claims--similarly resist aggregate treatment. The Wal-Mart ruling--although procedural--will have a disproportionate impact on particular substantive areas of the law, even within civil rights litigation. I suggest that this confluence of procedural rulings and change in constitutional doctrine was not anticipated nor is it entirely desirable. I explore changes to sub-constitutional remedial doctrine and statutes that could rekindle aggregate constitutional litigation, as well as associational standing rulings that facilitate group litigation. If constitutional litigation becomes a purely solitary affair, sporadic cases may have an outsized impact, but in an ad hoc way that provides poor notice to government officials. Aggregation can improve clarity, legitimacy, participation, and representation. Bigger lawsuits may sometimes be better--particularly when developing constitutional values.

INTRODUCTION

Constitutional rights and remedies are not just individual rights. Interpretation of constitutional provisions alters the structure and obligations of government and rights and responsibilities of citizens. Constitutional law affects groups, groups pursue impact litigation to press forward new constitutional theories, and courts supervise injunctions requiring government bodies to comply with constitutional norms. Despite the group-based nature of some civil rights litigation and the impact of constitutional litigation on groups, individual plaintiffs chiefly bring civil rights litigation in constitutional tort suits. Why is that?

One reason is that class actions seeking group-based civil rights remedies may be difficult to bring. This is no surprise to observers of the Supreme Court's recent class action decisions, particularly the high profile ruling in Wal-Mart v. Dukes, (2) decertifying a massive nationwide class action seeking remedies under Title VII, a civil rights statute, and calling for "rigorous" merits assessment of commonality prior to class certification. (3) The Court called the Wal-Mart class action, in which plaintiffs sought individualized relief, inconsistent with the historical purpose of the applicable class action provision, which grew out of "a series of decisions involving challenges to racial segregation--conduct that was remedied by a single classwide order." (4) The history of the evolution of civil rights class actions has been unexpected and little examined. (5) Groundbreaking 1968 revisions to the class action rule, Federal Rule of Civil Procedure 23, sought to facilitate civil rights class actions seeking injunctions. The Court has repeatedly noted Rule 23(b)(2) was designed for "[c]ivil rights cases against parties charged with unlawful, class-based discrimination." (6)

All of the Justices agreed with the portion of the Wal-Mart decision narrowing 23(b)(2) practice to such civil rights actions seeking injunctions. (7) The Court's still broader ruling (contested by the dissenters) required a searching merits examination of the threshold

Rule 23(a) requirement of commonality (that there be common questions of fact and law shared by the putative class members). (8) Observers predicted a negative impact not just in Title VII class actions, but also civil rights class actions more broadly. (9) However, the Wal-Mart decision will affect some types of civil rights class actions far more than others. That is because for some time now, the Court has defined a range of constitutional rights to require individualized inquiries, which may then run afoul of the commonality requirement.

For example, Fourth Amendment use of force claims, the bread and butter of constitutional tort litigation, require an individual inquiry regarding the reasonableness of the use of force. (10) As a result, a court may deny class certification citing a lack of common issues in the class. For related reasons, individual victims may have a difficult time pursuing injunctive relief to improve police policies. Other constitutional rights--ranging from due process rights, criminal procedure rights, Equal Protection Clause claims, and Takings Clause claims--similarly resist aggregate treatment as well as injunctive relief. (11) Why? The Court has elaborated "totality of the circumstances" or "individualized suspicion" or "materiality" or other context-specific tests. The story is mixed; for other constitutional claims, some involving the same Bill of Rights or Fourteenth Amendment provisions, the Court has expanded or narrowed rights, but in ways that do not hinder aggregation. At the same time, the Court has developed doctrines regarding standing and official immunity, as well as remedial barriers, that each created individual issues frustrating civil rights class actions. (12)

Over time, constitutional substance and not procedure may explain the decline of civil rights class actions. The number and proportion of class actions brought in federal civil rights cases has apparently fallen over the years. (13) There are many potential explanations, but it is possible at least that the Court's rulings have over time rendered some constitutional rights unsuitable to class action resolution. Regardless, no clear lines can be drawn because Congress has also at times enacted new civil rights statutes that are not directly tied to Bill of Rights provisions, but rather grounded in Commerce Clause power. (14) Those statutes are far more amenable to class treatment--though not always intentionally so. The Court has repeatedly stepped in, as in Wal-Mart, to impose limits. The Court has restricted access to class actions asserting bare constitutional claims and claims under federal civil rights statutes. In both respects, the civil rights class action has not fulfilled its promise. The result not only makes litigation outcomes more unpredictable for plaintiffs and for government, but it provides a poor forum for development of constitutional doctrine. The role of aggregation in civil rights litigation may need to be reconsidered from the ground up.

In Part I, I describe how in the areas of mass torts, securities litigation, antitrust, and others, courts, scholars and legislators have over time come to recognize that the class action device redefined aspects of the civil system by affecting the content of substantive rights. (15) By permitting mass litigation, the rise of modern class actions practice not only changed the way cases were handled procedurally, but it also affected how courts interpreted common law and statutory substantive rights. This connection between class action procedure and substantive rights also exists in regards to constitutional litigation, but the relationship has not been developed. (16) Nevertheless, scholars increasingly appreciate the role that procedure and remedies play in the development of constitutional rights. (17) That literature has not taken stock of the advent of the class action, modern nonparty preclusion law, as well as other procedural developments that have reshaped constitutional litigation.

Part II explores unintended procedural results of substantive constitutional rulings, examining Eighth Amendment, Fourth Amendment, Equal Protection Clause, Takings Clause, and criminal procedure claims. (18) The constitutional text rarely includes any language that addresses issues of individualized or aggregate proof. Instead, the Supreme Court to an unappreciated degree has in its rulings scaled constitutional rights. In other respects, the Court adopts constitutional rules that define the harm as a group harm suited to aggregate resolution. Even different theories under the same constitutional provision may be either amenable or totally incompatible with aggregate treatment. Remedies have also been individualized, in ways that hinder aggregate litigation, with an exception: the Court's associational standing cases that highlight the advantages of group litigation.

Part III develops a theory of the relationship between democratic accountability and aggregation. Our overly individualized constitutional litigation system does not...