Separation of Powers and the Class Action

• Publication year: 2021
• Citation: Vol. 95

95 Nebraska L. Rev. 366. Separation of Powers and the Class Action

Separation of Powers and the Class Action

Mark Moller(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 367

II. The Need for a New Theory of Litigant Autonomy ..... 371
A. Some Terminology ................................. 372
B. The Litigant Autonomy Conundrum ............... 373
1. The Anti-Balancing Puzzle ..................... 374
2. Solutions to the Puzzle? ....................... 383
a. Litigant Autonomy as a Fundamental Right ...................................... 383
b. Litigant Autonomy as a "Substantive Right" ..................................... 386
c. The Problem with the "Substantive Right" Argument .................................. 390
C. The Need for a New Theory ....................... 394

III. A Separation of Powers (and Federalism) Theory of Litigant Autonomy .................................... 395
A. Class Actions and the Federal-State Balance ...... 396
1. Class Actions Expand What Gets on the Federal Judicial Agenda ............................... 396
2. Class Actions Expand the Scope of Federal (Judicial) Preemption .......................... 399
B. A New Separation of Powers Argument for Construing Rule 23 Narrowly ...................... 403
1. Private Law Standing as a Component of the System of Concurrency ........................ 403

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2. Entrenchment of Private Law Standing Principles by the Separation of Powers ......... 405
C. Consistency of the Approach with the Application of Separation of Powers in Other Contexts ........... 411
1. Antisuit Injunctions ........................... 412
2. Jurisdiction ................................... 414
3. Erie and Hanna ............................... 416
4. Implied Rights of Action ....................... 420
5. Congress's Control of the Concurrency System. . 422
D. Miscellaneous Objections .......................... 423
1. "What about the Rules Enabling Act?" ......... 423
2. "What about the Class Action Fairness Act?" . . . 425
3. "There is no federal common law!" ............. 427
4. "I don't like the outcome." ...................... 428

IV. Conclusion ............................................ 430

I. INTRODUCTION

We are, it has been said, in a "post-class-action" era-a product of a Supreme Court's increasing hostility to class certification.(fn1) That hostility has come in for a lot of criticism. Judge Jack Weinstein recently articulated one technocratic vein of this. The eclipse of the federal class action, he lamented, deprives federal courts of a potent tool for consolidating control over mass litigation.(fn2)

Weinstein is certainly right. The demise of federal courts' oncegenerous attitude toward class certification has ended up ceding control over significant chunks of mass tort litigation to state courts. The notorious Vioxx products liability litigation(fn3) is the classic example. There, thanks entirely to the inability to certify the claims as a federal class, tens of thousands of suits ended up in state courts, leading the Judicial Panel on Multidistrict Litigation ("MDL Panel") to engage in dubious creative efforts aimed at inducing state litigants to join a global settlement.(fn4) And Professor J. Maria Glover has found the pattern of "significant" mass tort spillage into state court persists today,

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despite changes to federal jurisdiction in the Class Action Fairness Act.(fn5)

The reason that taking away the class action device ends up leaving states in control of lots of cases is pretty simple. The scheme of federal jurisdiction relies to a significant degree on "litigant auton-omy"-that is, the ability of litigants to control the enforcement of their own claims. Our jurisdictional scheme gives claim owners a broad choice of forums and, with that choice, substantial power to avoid federal court by exploiting control of their claims-through, for example, their selection of the theory of the case, their control over party structure, and the like.(fn6)

Individual claim owners inevitably have differing forum preferences. As result, giving each injured party control of her own claim means that substantial chunks of litigation will radiate out of federal courts' reach as litigants exercise that control to park their claims in state court. Class actions, by contrast, override claim owners' ability to leverage the jurisdictional power of claim-control. That is in no small part why class actions are such a potent vehicle for federal consolidation.

For fans of federal consolidation, like Judge Weinstein, this is a powerful reason to construe the federal class action rule broadly. Doing so would give federal courts power over mass litigation beyond what even the Class Action Fairness Act's supporters envisioned.(fn7) But, in fact, the class action's consolidating power actually highlights a reason to defend the Supreme Court's narrow constructions of the federal class action rule-a reason that has gone unnoticed in the literature.

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This unnoticed argument is formal. It lies with the design of our system of separated powers. Control over jurisdictional policy lies with Congress. That control protects states from federal courts' incentives to arrogate power to themselves.(fn8) And modern doctrine enforces Congress's control over jurisdictional policy in a distinctive way-by directing federal courts to read rules that confer power on them, at the expense of states, narrowly.(fn9) This interpretive norm ties federal courts to the proverbial mast. It prevents them from exploiting ambiguity to grab power that Congress didn't intend to give them.(fn10)

Because litigant autonomy is so tightly woven into our scheme of limited federal jurisdiction, class actions-by overriding that autonomy-change how that scheme works. And they do so in a way that aggrandizes federal courts. Given all this, the class action has to be included in any principled application of the rule that "changes to the scheme of limited jurisdiction are construed narrowly." Excluding it would blow a huge loophole in the framework protecting Congress's control over jurisdictional policy.(fn11)

This "jurisdictional" argument for narrow constructions of the class action turns out to have surprising implications for the current debate about the Court's class action cases. Scholars have almost uniformly focused on due process as the source of the protection for litigant au-

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tonomy.(fn12) This though raises a puzzle. Due process does not protect any interest absolutely. Its protections, rather, fall away in the face of strong competing interests. But, if litigant autonomy is protected only through the Due Process Clause, why is the Supreme Court, in the course of construing Rule 23, so unwilling to override litigants' autonomy interests when the balance of interests actually favors aggregation?(fn13)

By redirecting our attention to autonomy's role in our jurisdictional system, the argument offers a way to defend the Court's treatment of autonomy by lending it a different formal underpinning. When due process protection for autonomy gives out, institutional values-federalism and separation of powers-still obligate courts to construe rules derogating from the policy of litigant autonomy narrowly. The Court's treatment of the class action rule-as a narrowly construed exception to the "usual rule that litigation is conducted by and on behalf of the individual named parties only"(fn14)-pretty neatly maps onto this idea.

The argument here also draws out an important tension between two conservative criticisms of mass tort litigation. One the one hand, legal conservatives tend to exhibit near-reflexive hostility to supposedly "plaintiff-friendly" state courts.(fn15) One the other hand, conservatives are also famously hostile to federal class actions.(fn16)

My argument puts these impulses on a collision course. Building a formal underpinning for contemporary class action law's treatment of

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autonomy, it turns out, requires acknowledging states' continuing role in our system of mass tort federalism.

I develop the argument in two parts. Part II reviews existing accounts of litigant autonomy, showing how none offer an adequate defense of current class action law's nearly "absolute" protection of that value.

Part III then sketches the Article's new way of thinking about litigant autonomy, in four steps: Section A unpacks how litigant autonomy protects states and how class actions, by overriding that autonomy, aggrandize federal courts. Section B introduces the basic separation-of-powers argument for a narrow interpretation of Rule 23 that flows from the federalism problem with class actions.

Section C responds to one likely objection-that the argument misapplies a "narrow construction" rule developed for jurisdictional law to a nonjurisdictional rule, the federal class action. I show that, to the contrary, doing so is actually consistent with existing doctrine: The scheme of limited federal jurisdiction is a product of the complex interplay of rules both "jurisdictional," in a technical sense, and nonjurisdictional. And the Court applies the "narrow construction" rule to both, making the approach argued for here a natural, even inevitable, extension of existing case law.

Section D responds to some additional objections, including (1) that the delegation of rulemaking authority to federal courts obviates separation of powers concerns with broad judicial constructions of the class device and (2) that the argument here is inconsistent with the Class Action Fairness Act.

II. THE NEED FOR A NEW THEORY OF LITIGANT AUTONOMY

Before introducing this Article's new theory of litigant autonomy, this Part reviews predecessors. It focuses, in particular, on how these predecessor theories can't convincingly explain the...