Constitutionalizing Class Certification

• Publication year: 2021

95 Nebraska L. Rev. 1024. Constitutionalizing Class Certification

Constitutionalizing Class Certification

Margaret S. Thomas(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 1025

II. The Constitutional Shift in Class Certification ......... 1030

A. BP's Gulf Oil Spill Muddies Article III's Limits on Class Standing in Federal Court ................... 1030
B. Defendant Due Process Rights in Class Actions in State Courts ...................................... 1036
1. Montana's Example: Class-Wide Punitive Damages ...................................... 1036
2. Pennsylvania's Example: Wal-Mart Redux ...... 1039
C. Weaving Together the Three Categories of Constitutional Challenges to Certification .......... 1041

III. The Historical Constitutional Limits on Aggregation . . . 1042
A. The Constitutional Canon for Class Actions: Flexibility and Pragmatism ........................ 1044
B. Due Process in Civil Litigation: Mathews v. Eldridge and Its Progeny ................................... 1049
C. The New Frontier: Movement Toward a National, Uniform Class Certification Procedure ............. 1051
1. Connecting Punitive Damages Doctrine with
Class Certification ............................. 1052
2. Constitutionalizing Wal-Mart Stores v. Dukes . . 1055
D. Scholarly Critiques of the New Due Process Constraints in Class Actions ....................... 1060

IV. Reconstructing Federalism in the Class Action Landscape ............................................ 1065
A. The Value of Federalism in Aggregate Litigation . . . 1066
B. The State Courts as Independent Systems in "Our Federalism" ....................................... 1068

V. Conclusion ............................................ 1070

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I. INTRODUCTION

Class action litigation is in a period of transition. Many scholars, including myself, have observed the slow demise of class actions in federal court in the wake of the Class Action Fairness Act of 2005 (CAFA),(fn1) and the Supreme Court decisions that followed. Indeed, some scholars have even begun imagining the shape of mass tort litigation in a "post-class action era."(fn2) However, the end of the Supreme Court's most recent term brought a chorus of relief from the plaintiffs' bar. This was a Supreme Court term that some had once feared would hasten the end of federal class actions, but the term concluded without any tectonic shifts in the procedural landscape of aggregate litigation.(fn3) The respite taken by the Supreme Court in reshaping class action doctrine is not a signal of the doctrine's stability, however. The instability of the class action landscape seems to have instead merely relocated to lower courts for now.(fn4)

While the Roberts Court created increasingly insurmountable barriers to certification of nationwide classes in federal court,(fn5) mass tort litigation did not simply vanish into thin air. When federal courts (mostly) closed their doors to nationwide class actions, some of the disputes shifted into federal multidistrict litigation composed of many similar individual suits consolidated for pretrial proceedings.(fn6) Others fragmented into smaller class actions, some of which stayed in state

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courts.(fn7) Mark Moller has suggested this unintended result of the Supreme Court's contraction of nationwide class actions in the post-CAFA era created a kind of "accidental federalism" through the fragmentation and dispersal of mass tort litigation.(fn8)

This Article's focus is on a different kind of federalism in mass torts: the integrity of states as independent systems of adjudication for mass tort litigation. Specifically, it identifies the enormous pressure being placed upon this independence in the fragmented, dispersed pieces of mass tort litigation that happen to land in state court systems in the post-CAFA era. This form of federalism is not accidental or "happenstantial."(fn9) Rather, it is an essential and fundamental structural feature of our federal constitutional system. The independence of state courts as separate systems of civil adjudication is under pressure from a wave of arguments from defendants seeking to nationalize class action procedure through an aggressive reworking of constitutional due process doctrine that would wipe away state variations in class certification procedures.

A little-noticed battle for the future of complex litigation appears to be underway in state supreme courts. The relocation of class action's doctrinal battles to state courts is astonishing, as not long ago, state courts seemed to fade away in importance in complex litigation because of CAFA's reforms: CAFA was designed to facilitate the removal of many class actions from state courts to federal courts, causing the number of class actions in state courts to plummet.(fn10) Once in federal court, a wave of Supreme Court decisions then raised the bar to certifying classes in most mass tort cases.(fn11) Since CAFA facilitated re-

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moval of more suits into federal court, complex litigation scholars naturally focused on the rapid reshaping of the class action landscape by those federal courts.(fn12) The resulting post-CAFA decline in the utility of federal class actions as a means of resolving complex mass tort disputes has been well captured by academic commentators.(fn13) CAFA, combined with the Supreme Court's tightening of the understanding of the federal procedures for certification, seemed to have narrowed the space in which class actions could operate. This has been the conventional narrative for quite some time, but this narrative captures only part of the picture of what is transpiring.

This conventional post-CAFA mass torts narrative misses the development of the movement in state supreme courts to constitutionalize class certification. State class actions did not entirely vanish. Despite CAFA's robust sweep of cases into federal court, its plain terms contemplated space for at least some class actions that would continue to be decided by state courts, although that space would be smaller.(fn14) Within that small space in state courts, monumentally important changes are occurring in the kind of arguments being used to oppose class certification.

The state-by-state battle over class certification procedure is still in its early stages and has largely been overlooked by scholars, who have understandably fixed their gaze on developments in federal

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courts in the post-CAFA era. The conventional narrative focused academic attention on the one-two punch of Congress (enacting CAFA to facilitate more federal removal) and the Supreme Court (issuing a series of important decisions interpreting Federal Rule of Civil Procedure 23 to make class actions less likely to survive).(fn15) This narrative has helped to mask a seismic shift that is occurring in the manner in which defendants present arguments about certification in state courts, and this shift has profound implications for federal courts, too.

While a long line of Supreme Court decisions has focused on interpreting Federal Rule 23, state courts are not constrained to follow this precedent in their own certification of class actions filed in state court. Instead, defendants are often focusing state certification arguments on the U.S. Constitution. This tactic seeks to limit state procedural choices in certifying class actions, constraining states through an expansive interpretation of the civil defendants' due process rights. The tactic aims to constitutionalize the class certification process.

Defendants have attacked certification of class actions in state courts with an array of constitutional arguments about the process for certification. These arguments have been percolating through state courts (and sometimes even lower federal courts), without having yet reached the U.S. Supreme Court. Despite, or maybe because of, the Supreme Court's silence on the matter, they are becoming an increasingly important feature of the class certification landscape.

Many of the constitutional arguments against class certification are already well worn. Almost as long as there have been class actions, defendants have complained that curtailing their right to bring individual defenses would violate due process.(fn16) Arguments along these lines have long been asserted sporadically in lower courts, sometimes for decades; the arguments have become mainstream, stock arguments-and they now seem to be gaining some traction in some state courts and lower federal courts.

The academic commentary thus far has generally treated the varying constitutional arguments raised by class action defendants in different contexts in state and federal courts as dwelling in distinct

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doctrinal silos. For example, arguments objecting to certifying a class seeking punitive damages have been analyzed with reference to the specialized constitutional doctrine developed for punitive damages in individual litigation.(fn17) Arguments about individual proof and statistical modeling, by contrast, have been treated as having a different doctrinal pedigree, closely linked to procedural due process.(fn18)

This Article offers a fresh perspective by weaving together different threads of constitutional arguments related to class certification to demonstrate their common function in the class certification process. It takes these different doctrinal species of constitutional objections to certification and shows that they have a common purpose in the process. Each of these species attempts to shift certification from a rule-based decision to a constitutional one based on arguments about class members lacking sufficient commonality to allow for class-wide adjudication of defenses. In other words, it constitutionalizes the commonality inquiry. Connecting these different constitutional objections to class certification reveals...