Courts will be more likely to embrace an appropriately subtype- differentiated analysis if lawmakers, scholars, and litigants draw their attention to the historical origins of the traditional subtypes,362
and to the longstanding history of creating and acknowledging doctrinal differences between those subtypes and the aggregated-damages class action.363
357. Smith v. Bayer Corp., 131 S. Ct. 2368, 2380 (2011). But see Tobias Barrington Wolff,
Multiple Attempts at Class Certification, 99 IOWA L.REV.BULL. 137, 141 (2014) (arguing against “the suggestion in Bayer that the current version of Rule 23 would foreclose a district court from ever employing procedures designed to give a denial of certification binding effect”). 358. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2552–54 (2011).
359. See supra Part III.C.
360. FED.R.CIV.P. 23 advisory committee’s note to 1966 amendment.
361. Indeed, nothing in the text of the rule explicitly codifies any requirement of ascertainability. The text onto which the ascertainability requirement has been engrafted states only that “[a]n order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).” FED. R. CIV. P. 23(c)(1)(B).
362. Recent scholarship has greatly enhanced the tools available for understanding and illuminating these historical origins. See, e.g.,Robert H. Klonoff, Class Actions for Monetary Relief Under Rule 23(b)(1)(A) and (b)(1)(B): Does Due Process Require Notice and Opt-Out Rights?, 82 GEO.WASH.L.REV.798, 810–22 (2014); Marcus, Flawed but Noble, supra note 24, at 671–711; Marcus, History, supra note 48, at 600–22.
363. See, e.g., FED. R. CIV. P. 23(c)(2)(A)–(B) (creating different notice and opt-out requirements for aggregated-damages class actions versus the other class forms); Phillips
The U.S. Supreme Court, in particular, has emphasized the importance of history to the interpretation and application of the class-action rule.364
Yet dicta in Wal-Mart Stores, Inc. v. Dukes suggest that the Court has lost sight of a crucial aspect of that history, involving the origins and purposes of the injunctive civil-rights class action. The Court acknowledged, as it had before,365 that “‘[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples’ of what (b)(2) is meant to capture.”366
Yet it went on to assert that the “justification[] for class treatment” pursuant to the injunctive civil-rights subtype is “that the relief sought must perforce affect the entire class at once”367
—in other words, that the relief in such cases is “indivisible.”368
If taken literally, the Wal-Mart Court’s assertion about the purpose of the injunctive civil-rights class action cannot be squared with the history of that provision,369 which was motivated in part by the problem that the relief in desegregation cases was not logically indivisible, permitting district courts to enter “meaningless, individual-by-individual injunctions” instead of structural relief.370
As Benjamin Kaplan wrote during the drafting process,
If a school desegregation case, for example, is maintained by an individual on his own behalf, rather than as a class action, very likely the relief will be confined to admission of the individual to the
Petroleum Co. v. Shutts, 472 U.S. 797, 811 n.3 (1985) (acknowledging implicitly that the procedural-due-process analysis differs for aggregated-damages class actions versus the other class forms).
364. See, e.g., Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2557–58 (2011); Ortiz v. Fibreboard Corp., 527 U.S. 815, 833–45 (1999);Wolff, supra note 251, at 1040 (noting that the
Wal-Mart Court “discusse[d] the history and origins of Rule 23 as a lens through which to scrutinize the proper function of subsection (b)(2)”).
365. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).
366. Wal-Mart, 131 S. Ct. at 2557–58 (alteration in original) (quoting Amchem, 521 U.S. at 614).
367. Id. at 2558.
368. See id. at 2557 (“The key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” (quoting Nagareda, supra note 247, at 132)).
369. Elsewhere in the opinion, the Court articulated the purpose of the injunctive civil-rights subtype in a more historically consistent way. For example, it accords with historical practice to state (as the Court did in Wal-Mart) that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart, 131 S. Ct. at 2557.
school and will not encompass broad corrective measures— desegregation of the school. This would be unfortunate. . . .371
The history of desegregation litigation, and its role in the drafting of the injunctive civil-rights class action, thus refutes the Court’s assertion that the relief in such cases “must perforce affect the entire class at once.”372
As this example suggests, the proper interpretation of the class- action rule—including the appropriate analysis of subtype- differentiated standards embodied within the rule—may require greater efforts to bring the Court back to the historical origins of the traditional subtypes, especially with regard to the injunctive civil- rights class action.
CONCLUSION
In interpreting and modifying procedural law, courts and lawmakers must move beyond the erroneous assumption that all class forms entail the same challenges and concerns as the aggregated- damages class action, which is the newest and most controversial of the subtypes captured in the modern class-action rule. If those decisionmakers continue with their current level of class-action myopia, many of the intended benefits of the device’s other forms will ultimately be lost. Regardless of what restrictions the aggregated- damages class action may warrant, those restrictions should not be permitted to destroy the utility of the other mechanisms that the class-action rule creates.
371. Id. at 700 (alteration in original). Kaplan added that “if the action is not maintained as a class action, the contempt remedy would presumably not be available to anyone but the individual plaintiff, and others in similar position could be put to separate proceedings with ensuing delay.” Id. at 700–01.
372. Wal-Mart, 131 S. Ct. at 2558. One way of squaring this circle is to read the Court as referring not to logical indivisibility, but to what might be termed precedential indivisibility—the notion that the liability question cannot be decided differently for different members of the class, making the resulting precedent legally and factually indistinguishable in cases brought by similarly situated claimants. Richard Nagareda, on whose scholarship the Wal-Mart Court relied, appears to have originally intended this meaning of indivisibility. See Richard A. Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 COLUM.L.REV. 149, 180 (2003) (“Absent demands for damages, the liability issue—whether the defendant’s generally applicable conduct deviates from the governing legal standard—is indivisible in the sense that the defendant’s conduct is either lawful or unlawful as to everyone it affects.”).