Author

Longstanding constitutional commitments appear to ensure rights to remedies for “every person.” Nonetheless, courts were once exclusionary institutions contributing to the maintenance of racialized status hierarchies. Twentieth-century civil rights movements pushed courts into recognizing the authority of diverse claimants to pursue their claims. These movements also succeeded in legislatures, which invested in making constitutional obligations real through statutory entitlements, jurisdictional grants, and funding for tens of hundreds of courthouses, judgeships, and staff.

Courts thus became icons of government commitments to legal remedies, as well as battlegrounds about the authority of government to regulate power, both public and private. In this essay, I explore how the federal courts became the source of “our common intellectual heritage,” why it is difficult to bring sustained attention to state courts, and why doing so has become pressing as economic inequalities in state and federal courts undermine adjudication’s legitimacy.

Many of the new rights-holders had limited resources. Asymmetries in dispute resolution make aspirations to provide fair and equal treatment difficult. Because courts are public sites, the disparities are patent—bringing to the fore the problems facing litigants and courts. For some, responses lie in augmenting the capacity of courts to make good on their promises as information-forcing, conflict-exposing, and information-disseminating institutions. For others, the goal is to limit access to courts and undercut the legitimacy of their processes and outcomes. Illustrative is “Judicial Hellholes,” which is the name of a yearly publication attacking jurisdictions in which plaintiffs succeed in obtaining remedies.

To clarify the normative stakes of conflicts over “rights to remedies” in “open” courts, I focus here on the infrastructure of state and of federal courts and data on users and needs. Filings in both federal and state courts have, in recent years, declined, while concerns about self-represented litigants and the inaccessibility of courts have risen. I argue that the legal academy needs to take on “class” (as in economic wherewithal) in courts and that Congress needs to provide fiscal support for both federal and state courts, on which enforcement of law depends, and I address the challenges of
doing so.

The 1966 revision of Rule 23 has shaped our political and legal imagination. Building on the 1950 ruling of Mullane v. Central Hanover Bank and Trust Company, which approved the possibility of binding absentees nationwide through representative litigation, Rule 23 expanded the groups eligible for class treatment. Aggregation responded to felt social needs—for banks to pool trusts, school students to enforce school desegregation injunctions, and consumers to pursue monetary claims too small to bring individually.

Key to the legitimacy of doing so for Rule 23’s drafters was “the homogeneous character” of claims, permitting an identity of interests between the representative and absent members of the class. The 1966 Rule 23 put judges in charge twice: first, to determine the shape of the class and the adequacy of the representation and second, if a compromise was proposed, to assess again whether representative plaintiffs had proffered a fair and adequate resolution.

Rule 23 gave a limited role to absentees, many of whom were in mandatory classes from which no exit was possible. Added on late in the drafting was a mandate to provide notice at the outset that class actions were pending. That notice was required only for a subset of cases; individuals with monetary stakes were given formal opportunities to “opt-out”—even if, as a practical matter, individual lawsuits were not likely feasible.

While not producing a mass of opt-outs, notice requirements have pushed the processes of class actions into the public realm. Class actions gained a visibility not only because of the stakes and the judicial decisions on certification and settlement but also through mass mailings that brought the idea of class actions into the homes of millions of potential beneficiaries of lawsuits.

Aspirations and utility thus combined to reframe constitutional understandings of the “process due” by legitimating the authority of courts to deal in the aggregate without individuals affirmatively consenting to participate when cases began. But what fifty years of experience with class actions and related forms of aggregation— including multi-district litigation (MDL) and bankruptcy—have made plain is that an aggregate litigation’s life-span often continues after settlement or trial. New information can emerge about difficulties in effectuating relief, as can conflicts among claimants, whose “homogeneous character” may diminish after resolution. Thus, aggregate litigation in practice has come to have three phases—certification, resolution by settlement or trial, and implementation of remedies.

Critics of class actions, aiming to disable their use, rely on problems of implementation to argue against certification at the outset, and they invoke due process rights of both defendants and absent plaintiffs. A new law of due process is also emerging in the arena of personal jurisdiction—as the Supreme Court circumscribes the ability of courts to decide claims involving non-resident defendants. I bring that doctrine into discussions of class actions, first because the Supreme Court expanded the ability to aggregate litigants in 1950 through expanding jurisdiction and second because the Court’s decisions reflect unease with adjudicative authority not founded on relationships among the forum and those whose rights are decided. The concern about ensuring that defendants are “at home” parallels class action notice, as both seek forms of affiliation between litigants and the jurisdictions deciding their rights.

The Supreme Court has used its new personal jurisdiction law to circumscribe the scope of courts’ reach. Here I propose to borrow its concerns for the opposite purpose—to build affiliations so to expand the authority of courts during aggregation’s third phase. Aggregation’s pooling of resources has new importance today, as tens of thousands of civil litigants appear in state and federal courts without lawyers. Revising its practices is one way for democratic polities to help all classes of persons have access to court-based remedies.

In 1950 in Mullane, the Supreme Court approved what has been called “jurisdiction by necessity” to license state courts to determine the rights of all claimants when lawsuits had a nexus with the forum and notice was provided. In this century, the Court should likewise recognize the necessity of giving judges jurisdiction to oversee aggregation post-settlement so as to monitor implementation, respond to conflicts, and assess distributional equities. And, just as the 1966 Rule drafters turned to notice as a means of doing “something” to connect litigants with courts, notice can again be put to work during aggregation’s third phase to provide the “publicity” (to borrow from Jeremy Bentham) that makes connections possible and that forces the practices of courts, lawyers, and auxiliary personnel before the public.

Over the past decades, aggregate litigation has become more common; through various statutory, rule-based, and informal means, judges and lawyers consolidate large groups of individual litigants and claims. The paradigm of a class action, however, continues to dominate the literature, and with it, the assumption that a single set of lead lawyers represent all of the plaintiffs in the assembled group.

This article addresses the problems raised when, in contrast to that paradigm, aggregation brings together mass tort plaintiffs, some of whom come with individually-retained plaintiffs’ attorneys (IRPAs), who perform tasks in addition to those done by a court-appointed plaintiffs’ steering committee (PSC). Our central questions are about the roles of the many lawyers within the aggregate and the potential for policymakers to use procedural tools and the law of attorneys’ fees to structure incentives to enhance the experience of individual litigants within the aggregate. Animating our interest is the view that, in addition to effectuating outcomes, litigation is also a means by which to express political and social relationships. What occurs within an aggregate formed for adjudicatory purposes is of moment for the polity.