INTRODUCTION 1743 I. THE INDIVIDUAL MODEL: ONE ATTORNEY, ONE CLIENT 1747 II. THE POLITICAL MODEL: GOVERNMENT ATTORNEYS REPRESENTING THE PUBLIC 1752 III. THE COLLECTIVE MODEL: ATTORNEYS IN AGGREGATE LITIGATION 1757 CONCLUSION 1764 INTRODUCTION
One of the core tenets of democratic government is that We the People should have a voice in decisions that affect us collectively. Yet, given the size and scope of modern society, it will rarely be feasible for all of us to participate directly in the policymaking process. Instead, we participate via political representatives. It is through representation that the people are made "present" in government, and generations of political theorists have sought to make sense of the relationship between representation and democracy. (1)
The standard account of political representation emphasizes three features that serve to legitimize and democratize representation: Representatives must be authorized to act on the people's behalf; there must be some means by which the people can hold their representatives accountable for their actions; and the representatives must in fact endeavor to advance the people's interests. (2) The precise meaning of the last condition is the subject of one of the longest-running debates in political theory. Some commentators argue that representatives ought to serve as delegates for the people, channeling their constituents' wishes into action. Others envision representatives as enlightened and largely independent trustees who follow their own autonomous judgment about how best to promote their constituents' interests. (3) Where a particular representative sits on the spectrum from "instructed delegate" to "enlightened trustee" has important consequences for the representative relationship, and--for some theorists--for the legitimacy of representation. (4)
Most theories of political representation focus on legislative bodies as centers of policymaking authority and, thus, key sites for representation. But policymaking in the United States is by no means confined to the legislative branch. Of particular relevance here, our legal system also depends heavily on courts and litigants to develop and enforce the law through case-by-case adjudications. (5) The reality that adjudication involves more than mechanical law application is most obvious in common law cases, but the point extends to many instances in which courts are called upon to interpret statutes and constitutional provisions. (6) And, because "[c]ourts are not self-starting," (7) the choices made by litigants and lawyers--which may be driven by considerations of strategy, resources, values, and more--play a vital role in shaping how the law operates in practice.
Representation is critical to adjudication, though at first glance the link to political representation may seem to be little more than semantic coincidence. If the prototypical political representative is an elected official who represents a multitude of citizens, the standard model of adjudicative representation is that of a single attorney representing a single client. The reasons for representation also appear to shift when we move from the political to the adjudicative context. Clients rely on attorneys to speak for them in adjudication, not because it is impossible for them to participate more directly but because they wish to take advantage of attorneys' specialized legal training.
These differences reflect the distinctive norms that govern participation in adjudication and lawmaking. The norms of adjudication are individualistic, focused on litigant autonomy and captured in the ideal that every disputant is entitled to his own "day in court." (8) That ideal, in turn, is formalized in due process rights of notice and an opportunity to be heard. (9) But those rights do not apply in the context of regulatory or legislative decisions of more general applicability. As the Court explained in the famous Bi-Metallic case,
[w]here a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption .... Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. (10) Despite these differences, the worlds of lawmaking and adjudication are closer than they first appear. As many others have observed, the lines between lawmaking and adjudication are blurry at best. (11) Statutes and regulations may be narrowly drawn, targeting identifiable individuals and groups. (12) And, given rules of preclusion and stare decisis, the results of adjudication may have wide-ranging, prospective effects. (13)
This familiar point about the overlap between lawmaking and adjudication also has ramifications for representation. To borrow the language of Bi-Metallic, adjudication can and often does establish "rule[s] of conduct" that apply to "more than a few people"--sometimes many more. That point is self-evident in class actions and other forms of aggregate litigation in which the interests being adjudicated are themselves quite numerous. (14) Indeed, a primary purpose of the class-action device is to facilitate litigation in circumstances where it is inefficient or impossible for all the affected individuals to sue one by one. But even cases with a single plaintiff and a single defendant can have serious consequences for third parties, particularly where the goal of the suit is to change institutional conduct or establish a new rule of law.
In these circumstances, the conventional model of adjudicative representation--one attorney, one client--seems inaccurate, or at least inadequate. Meanwhile, the questions that have animated theories of political representation come to the forefront. How can diverse and sometimes conflicting interests be represented by a single person? How might representatives be authorized and held accountable, and what should we do when they are not? Should representatives behave like delegates or trustees? To be sure, lawyers and legal academics talk about these questions, particularly in the context of class actions. Too often, though, the conversation is confined to the silo of law, ignoring that theorists from other disciplines have studied the same questions for generations. (15)
In this Article, I use the lens of political theory to examine the concepts of adjudicative representation in different types of litigation settings. My use of the plural is intentional. Our legal system employs multiple models of representation, and my principal goal is to survey the litigation landscape to take account of the diversity of adjudicative representation. Given limitations of space, the survey is necessarily truncated. First, I focus only on attorneys as representatives, though there is much that could be said about representative parties. Second, I consider only three adjudicative settings: individual suits, civil suits by government, and private class actions. Because the potential for overlap between adjudicative and political representation is at its peak in areas where adjudication touches on contested questions of social policy, most of the discussion that follows concerns public law litigation. (16) In the class action context, for example, I focus on injunctive class actions, which tend to be spearheaded by public interest lawyers.
Even with these limitations, the survey reveals three distinct models of adjudicative representation, each of which presents different challenges and produces different consequences for the immediate litigants and third parties. As political theorists long have recognized, no system of representation is perfect; "the suppression of differences is a problem for all representation." (17) But different types of representation include and exclude--empower and disempower--in different ways. As I suggest in a brief conclusion, recognizing this diversity in adjudicative representation might open up fruitful lines of inquiry into the comparative advantages and disadvantages of each model, and a better understanding of where each model is most, and least, desirable.
THE INDIVIDUAL MODEL: ONE ATTORNEY, ONE CLIENT
The conventional vision of adjudicative representation features an individual attorney representing an individual client. The same vision permeates the rules of professional conduct for attorneys, most of which "simply assume that the client is an individual." (18) In this vision, the attorney acts as an agent of the client. The client relies on the attorney for legal expertise, but the client is in charge: her preferences as to the "objectives of representation" control, even if the attorney believes them to be unwise. (19) I will call this the "individual model" of adjudicative representation.
If we compare this model to the standard account of political representation, we find both similarities and differences. Recall that the orthodox view of political representation stresses three elements: authorization, accountability, and interest representation. As described below, the first two elements become problematic when we move away from conventional lawyer-client arrangements and into larger-scale litigation in which an individual attorney represents many people at once. But in the simple case of one attorney and one client, the requirements of authorization and accountability are straightforward as a conceptual matter.
It is with respect to the third element of representation--the requirement that the representative act for the represented, promoting her interests--that the individual model of adjudicative representation diverges from most theories of political representation. As the Introduction suggested, the verb form of "represent" raises thorny questions about what it means for one person to represent the interests of another, and to do so well or badly. Should the representative follow the wishes of her constituents? Or should she...