The fact that a Supreme Court Justice asks about something off the wall at an oral argument — and the suggestion that Rule 23 could solve the problems with nationwide injunctions is off the wall, out of the handball court, and over the fence into the weedy parking lot next door where the winos hang out — just goes to show their humanity, which is to say, capacity to occasionally look and sound stupid no matter how smart they really are.
I first learned about class actions from Harvard's Mark Tushnet when he taught a 1L Federal Civil Procedure course while visiting at Texas Law in 1977. Tushnet, a self-avowed Marxist, was enough of a social justice warrior to wish that class actions could solve all our problems, but honest and realistic enough to recognize that they never, ever would — and that indeed, even by 1977 it was obvious that their uses were extremely limited and mostly speculative in the real world.
My practice experience in the intervening four decades has shown me that his cautions were well given. As a wealth transfer technique, from corporate America to class-action lawyers on both sides, they're extremely useful. But I'm pretty much aligned with Walter Olson, notorious and in my opinion heroic gadfly opposing class certifications and settlements.
"Hey, I know! Let's crowd-source all these issues, and let everyone who wants a say intervene, oppose class certification or demand revisions thereto, or opt out!" Sounds good; won't work. Imagine the arguments over whether or not the named class representative's purported gang tattoos make him or her an appropriate class representative. Should facial tattoos require a separate subclass? And if there's no underlying commerce to suck the blood, or money, out of to pay all the lawyers, the incentive structures won't work either: corporate counsel who advise their clients to pay off the class action plaintiffs' bar aren't similarly situated (heh) to government lawyers deciding whether to oppose a civil rights fee which would instead be paid from the public fisc.
We need more actual civil trial lawyers on the SCOTUS bench. Even one would be nice. I'm pretty sure that not a single sitting Justice has ever actually filed or defended against a class action, and they quite literally know not of what they speak.
1. I do think there's a difference between (b)(2) and (b)(3) class actions. Because they don't have the opt-out provisions, (b)(2) class actions can be certified much more quickly—as Judge Murphy did in the Boston case.
2. Now that the Court has blessed giving relief to "putative" classes, I could see plenty of (progressive) judges doing so, even while the class-certification gears grind. As Professor Fitzpatrick put it (in a part of the interview that didn't make the article), "District judges can say, 'If it's good enough for SCOTUS, it's good enough for us down in the district courts!'"
So Trump policies could get frozen for quite some time during the certification battles—which is really what the issue with universal injunctions is all about (i.e., while the legality of some executive action gets hashed out in the courts, who gets the benefit of the doubt).
Progressive judges can enjoin the Trump policy ASAP, by giving relief to the "putative" class. And if they take their sweet time on deciding certification, so much the better.
The fundamental problem in this and other cases is that the courts, including SCOTUS, are struggling to find ways to do justice and enforce the law against an administration that has no respect for the rule of law, regularly operates in bad faith, and does not hesitate to distort judicial decisions or do whatever else it can to impede judicial review or escape it altogether. Exacerbating the situation, the federal judiciary is in the uncomfortable and extremely challenging position of being the lone check on Trump's excesses since there clearly are no guardrails within the executive branch (only enablers) and Congress is totally MIA.
The fact that a Supreme Court Justice asks about something off the wall at an oral argument — and the suggestion that Rule 23 could solve the problems with nationwide injunctions is off the wall, out of the handball court, and over the fence into the weedy parking lot next door where the winos hang out — just goes to show their humanity, which is to say, capacity to occasionally look and sound stupid no matter how smart they really are.
I first learned about class actions from Harvard's Mark Tushnet when he taught a 1L Federal Civil Procedure course while visiting at Texas Law in 1977. Tushnet, a self-avowed Marxist, was enough of a social justice warrior to wish that class actions could solve all our problems, but honest and realistic enough to recognize that they never, ever would — and that indeed, even by 1977 it was obvious that their uses were extremely limited and mostly speculative in the real world.
My practice experience in the intervening four decades has shown me that his cautions were well given. As a wealth transfer technique, from corporate America to class-action lawyers on both sides, they're extremely useful. But I'm pretty much aligned with Walter Olson, notorious and in my opinion heroic gadfly opposing class certifications and settlements.
"Hey, I know! Let's crowd-source all these issues, and let everyone who wants a say intervene, oppose class certification or demand revisions thereto, or opt out!" Sounds good; won't work. Imagine the arguments over whether or not the named class representative's purported gang tattoos make him or her an appropriate class representative. Should facial tattoos require a separate subclass? And if there's no underlying commerce to suck the blood, or money, out of to pay all the lawyers, the incentive structures won't work either: corporate counsel who advise their clients to pay off the class action plaintiffs' bar aren't similarly situated (heh) to government lawyers deciding whether to oppose a civil rights fee which would instead be paid from the public fisc.
We need more actual civil trial lawyers on the SCOTUS bench. Even one would be nice. I'm pretty sure that not a single sitting Justice has ever actually filed or defended against a class action, and they quite literally know not of what they speak.
1. I do think there's a difference between (b)(2) and (b)(3) class actions. Because they don't have the opt-out provisions, (b)(2) class actions can be certified much more quickly—as Judge Murphy did in the Boston case.
2. Now that the Court has blessed giving relief to "putative" classes, I could see plenty of (progressive) judges doing so, even while the class-certification gears grind. As Professor Fitzpatrick put it (in a part of the interview that didn't make the article), "District judges can say, 'If it's good enough for SCOTUS, it's good enough for us down in the district courts!'"
So Trump policies could get frozen for quite some time during the certification battles—which is really what the issue with universal injunctions is all about (i.e., while the legality of some executive action gets hashed out in the courts, who gets the benefit of the doubt).
Progressive judges can enjoin the Trump policy ASAP, by giving relief to the "putative" class. And if they take their sweet time on deciding certification, so much the better.
I appreciate the detailed and thoughtful reply, Mr. Lat, although I can't say I'm persuaded yet.
The fundamental problem in this and other cases is that the courts, including SCOTUS, are struggling to find ways to do justice and enforce the law against an administration that has no respect for the rule of law, regularly operates in bad faith, and does not hesitate to distort judicial decisions or do whatever else it can to impede judicial review or escape it altogether. Exacerbating the situation, the federal judiciary is in the uncomfortable and extremely challenging position of being the lone check on Trump's excesses since there clearly are no guardrails within the executive branch (only enablers) and Congress is totally MIA.