INTRODUCTION 4 I. BACKGROUND 5 A. Nomenclature 5 B. Hypothetical 10 II. CONTRACTUAL AND PROCEDURAL IMPLICATIONS 11 III. PRECLUSIVE-IMPACT ANALYSIS 14 A. Overview 14 B. Under U.S. Law 15 C. In the Civil-Law World 17 1. Prelude 17 2. Parties 18 3. Object 19 4. Cause 20 5. Coda 22 D. The Idea of Res Judicata 22 IV. PRECLUSION IN PRACTICE 25 A. Warm-Up 25 B. The United States 26 1. Class Actions 26 2. Citizen Suits and Qui Tam Actions 28 3. Parens Patriae Suits 29 4. Summation 31 C. Brazil 32 1. Popular Actions 32 2. Public Civil Actions 33 3. Summation 34 D. Spanish America 34 1. Diffuse-Interests Suits in Peru and Uruguay 34 2. Colombian Popular Actions 37 3. Argentina's Collective Writ of Protection 37 4. Mexican Collective Actions on Diffuse Rights 39 5. Summation 40 E. Wrap-Up 40 V. LEGITIMATELY SETTLING SOCIETAL CLAIMS 41 A. Without Compromising 41 B. On Behalf of the Citizenry 45 VI. GOVERNMENT FOR THE PEOPLE 48 CONCLUSION 53 O, pardon! since a crooked figure may Attest in little place a million; And let us, ciphers to this great accompt, On your imaginary forces work. WILLIAM SHAKESPEARE, THE LIFE OF KING HENRY THE FIFTH, act 1, prologue INTRODUCTION
Like the chorus in Shakespeare's Henry the Fifth, (1) those who proceed on behalf of society at large should have both the first and last word. They should possess the capacity to undertake this act of representation, whether in or out of court, with forcefulness and finality. Indeed, a genuine representative should not have to run the risk of others thereafter embarking upon the matter anew and standing in for whomever she is representing, as well as casting aside her effort as irrelevant, insufficient, or illegitimate.
This Article will imagine the state as such a nominal claimant and specifically study the preclusive ramifications, in the United States and throughout the Western Hemisphere, of a judicially endorsed governmental conciliation of a societal claim. It will conclude that such an agreement, like the settled or averted action, precludes other, prospective plaintiffs from litigating the cause. Coincidentally, some civil-law jurisdictions do not require the judiciary to sign off to produce this outcome.
The overall conclusion at the heart of the preceding paragraph rests on the notion that the settler or suitor in these disputes steps into the shoes of the broader community. The latter, as the real party in interest, may not subsequently take another bite at the apple through a different spokesperson. Otherwise, it would unfairly and inefficiently burden, respectively, its opponents and the adjudicating tribunals in its quest for a windfall. As a result, such settlements or suits would lose much of their legitimacy and perhaps also their political and social support.
In any event, the conciliatory option plays a key role in the effort to vindicate environmental and other entitlements that pertain to the citizenry as a whole. Specifically, it allows such vindication in an abundant number of cases that could not realistically go through a potentially protracted and pricey adjudication. Of course, the law must not merely authorize parties to settle and to secure any necessary judicial endorsement. It must additionally guarantee a full res judicata effect thereupon. After all, alleged violators would have much less of an incentive to conciliate if they could not thereby attain protection against fundamentally identical complaints that other complainants might lodge.
Part I will (A) define the various types of rights at stake and (B) describe a hypothetical scenario to which the analysis will refer from start to finish. Next, Part II will explore the discussed agreements' contractual and procedural implications. Part III will then consider the latter. In particular, it will separately scrutinize how U.S. law and its civil-law counterpart should decide the question of res judicata under their respective standards.
Afterward, Part IV will examine how legal systems in the United States and throughout Latin America tackle the issue in practice. It will show that they recognize, mostly explicitly, an erga omnes impact; in other words, against anyone who might try to reignite the controversy. Finally, Parts V and VI will assess, in turn, the theoretical challenges confronting and the justifications underlying (V) an authorized litigant's endeavor to settle these collective claims and (VI) the government's defense of the public's well-being.
Beyond taking stock of the entire disquisition, the Conclusion will submit that, independently of who acts as nominal claimant, such suits and settlements operate more legitimately when they punctiliously stay within the limits set by the principles of preclusion. It will propose that they may thus better survive any generalized attempt to discard them as superfluous or frivolous. At the end of the day, the speaker for the people will have the chance to speak, both figuratively and literally, once and for all.
This Section will explicate societal rights. It will contrast them with aggregated individual rights, as well as with individual rights. Further elaboration on this conceptual framework will take place in the course of the argumentation in full.
The law, the precedents, and the literature deploy different terms to refer to these various entitlements. (2) Nonetheless, they largely agree on the underlying issues. (3) This Article relies on a terminology that brings to the fore, as clearly as possible, the difference between the distinct varieties of entitlements under examination. At any rate, it uses the words 'right' and 'entitlement' mostly interchangeably.
Individualized rights are the most basic element in this categorical scheme. They support claims that one person asserts against someone else. For instance, P may, under usual circumstances, rightfully insist on indemnification, on the basis of individual entitlements, when she endures personal injury as a consequence of D's negligence. (4)
Two or more parties may sometimes combine their respective individual assertions in a single action, if they can show sufficient legal or factual commonality to warrant the combination. (5) The rights in question do not thereby lose their individualized character. For example, P1 and P2 may institute their complaints and vindicate their entitlements together whenever D injures both of them at once through her negligent conduct. (6) They should receive compensation commensurate with what they are individually entitled to.
As the number of right-holders increases, the denomination 'aggregated individual rights' becomes appropriate. Still, the numerous entitlements generally remain individual and amenable to apportionment. For instance, when a substantial set of stockholders sues the corporate board of directors for encroaching upon shareholder rights, each investor usually has a claim that corresponds to the quantity of shares that she owns. (7)
These individually held entitlements, which allow division, stand out in sharp relief against societal rights, which are basically indivisible and concern society as a unit, or a sizeable community. This ampler category includes generalized entitlements that have attained national or international recognition, such as rights to ecological well-being, to the safeguard of public health or cultural heritage, to self-determination, or to economic development. (8) These particular entitlements have developed more recently than individual rights. (9) Furthermore, they often operate as positive rights, which compel the government (or private parties) positively to engage in, rather than negatively to refrain from, certain actions. (10)
Rights that belong indivisibly to several persons have, most likely, existed in all legal systems and at all times. When two individuals own a house, for example, they normally possess a relatively undividable right with respect to it. Likewise, entitlements that pertain to society at large have had an extremely extended history. The Roman actio popularis, for instance, enabled ordinary citizens to uphold the entitlements of the entire citizenry. (11) The novelty of the contemporary action of this sort consists in its general, as opposed to sporadic, availability, in its widespread deployment, and in its focus on modern concerns such as the environment. (12) The U.S. citizen suit and the civil-law action on so-called "diffuse" interests provide cases in point. (13)
For purposes of illustration, one may think of a privately-run prison that neglects security regulations and thus compromises the safety of the immediate vicinity. The neighbors who, as a result, see their home values drop might join their individualized claims against the institution and demand satisfaction for the reduction in the price of their homes. In addition to this joinder of individual assertions, the surrounding neighborhood might seek to enforce its right to a safe residential space and request a judicial order commanding incarceration officials to abide by the relevant rules.
In societal litigation, the entitlement at stake transcends any personal entitlement that the neighboring residents might enjoy. Indeed, it cannot be apportioned (or divided) among them in a straightforward fashion. An injunction issued against the responsible authorities, for the protection of this right, benefits the group but no person in particular.
In fact, the violation would occur even if none of the properties had depreciated. After all, the population, as a totality, has suffered a separate harm--beyond the financial loss that homeowners have individually borne--due to the overall diminution in quality of life. The individual entitlements relate to but also distinctly differ from their collective counterpart.
While both types of rights can be vindicated "collectively," there are two elemental dissimilarities between aggregated-individual and societal entitlements...