For the past ten terms the Supreme Court has increased its focus on the law of class actions. In doing so, the Court has revised the law to better accord with a view of the class action as an exception to an idealized picture of litigation. This “exceptional” view of the class action has had a profound impact not only on class action law, but on procedural and substantive law in general. However, in the October 2015 term the Court decided three class action cases that support an alternative, “functional” view of the class action, one that does not view the class action as exceptional, but as one of many equally permissible tools to serve the objectives of substantive law. This alternative view has the potential to have a similarly significant impact on the law, but it is not certain whether the Court will further develop this alternative, especially given its most recent class action decisions. This Article discusses the development of the “exceptional” view of the class action, the awakening of a “functional” alternative view, and the uncertain path ahead.
INTRODUCTION
It is always risky to discuss the current views of the Supreme Court over any area of law. The Court’s views are like riverbeds, which can dry from inattention at times, or flood with focus, or shift into new and unexpected directions. Moreover, like a riverbed, the Court’s views can create channels that draw water after dry periods, influencing the course of the river when the Court’s attention returns. It is difficult to chart the causes of these ebbs and flows, but it is helpful to map the river to better navigate it, to see what deep channels may still draw water, and, perhaps, to cultivate channels into new directions.
This is particularly true of the Supreme Court’s views on the class action. Beginning in the October 2009 term, the Supreme Court has granted certiorari in a number of cases raising issues concerning the law of class actions.1 During this time period, Justice Scalia had an enormous influence on the Supreme Court’s understanding of the class action device. This is reflected in the many majority and plurality opinions he wrote in the class action cases decided during this period.2 This influence, in fact, can be traced to deep channels that Justice Scalia, with the help of others, developed prior to this flood of attention.
One can also detect Justice Scalia’s influence on class action law by his absence. This is especially true of the October 2015 term, a term which, unfortunately, saw the passing of Justice Scalia on February 13, 2016.3 During that term the Court decided three major class action cases. The first, Campbell-Ewald Co. v. Gomez, was decided less than a month before Justice Scalia’s death and was his last class action case.4 However, in Campbell-Ewald, Justice Scalia did not write the majority, but dissented. Moreover, in the two cases that followed—Tyson Foods, Inc. v. Bouaphakeo5136 S. Ct. 1036 (2016) (decided on Mar. 22, 2016). and Spokeo, Inc. v. Robins6136 S. Ct. 1540 (2016) (decided on May 16, 2016). —the Court moved further away from the view that has informed Justice Scalia’s, and the Court’s, recent decisions on the class action.7 The fact that this new path occurred so quickly after Justice Scalia’s death only confirms the outsized influence he has had on the Court’s class action jurisprudence.
This Article seeks, in part, to bring to light the view of the class action that motivated Justice Scalia’s, and the Court’s, decisions prior to his passing. This view is not unique to Justice Scalia, and can be traced back to decisions made by the Court in the 1990s concerning class actions and asbestos litigation,8 if not earlier.9 Indeed, this Article not only sets forth this view, but traces the development of this view over time, to arguably its apex just prior to the October 2015 term.
This view does not consider class actions per se unlawful, but it does consider them to be an exception to a particular idealized view of procedure. Specifically, under this “exceptional” view of class action, a class action is seen primarily as an “economical” procedure that decides issues collectively for the class.10 However, the class action cannot be used if it would change what would have occurred in the “normal process” of separate actions filed by each individual class member.11 Put another way, the Court has emphasized “our ‘deep-rooted historic tradition that everyone should have his own day in court,’”12 and the class action is an “exception” that cannot frustrate that tradition without great justification.13
The “exceptional” status of the class action, and the purportedly “deep-rooted tradition” upon which it is based, has had an enormous impact on class action law. Indeed, this exceptional view is a threat to the very existence of the class action itself, insofar as the Court has slowly forgotten the utility of, and thus the justification for, the class action procedure.
Critics of the Supreme Court’s recent class action jurisprudence have pushed back against this exceptional view of the class action by highlighting the regulatory benefits of the class action in curtailing wrongdoing committed against a large group of dispersed individuals.14 Older class action decisions by the Court have also pointed out the regulatory benefits of the class action.15 But these regulatory benefits only appear to redound to persons outside the litigation, and thus, at least at first glance, sacrifice the interests of the parties to some diffuse, amorphous good.16 The regulatory benefits do not, without more, counter the core appeal of the exceptional view. What makes the exceptional view compelling is that it prioritizes the individual over the group, and thus seeks to prevent the collective from running roughshod over the individual’s rights and interests.
As argued in more detail below, the three class action decisions of the October 2015 term have awakened an alternative to the exceptional view of the class action, one that takes on the core appeal of the exceptional view directly. Under this nascent alternative view, the class action is not an exception to an idealized, individualized procedure. Instead, the alternative view recognizes that such individualized procedures can be dysfunctional in some contexts, and in those contexts the class action may be a solution to that dysfunction. Accordingly, under this alternative view, the class action is not an imperfect procedure to be constrained but a solution that alleviates the problems that may arise from the very individualized procedures that the exceptional view regards as ideal.
More importantly, this alternative view does not differ from the exceptional view’s concern with protecting the interests of each individual class member from being subordinated to the interests of the collective. They only differ in what those rights are and how they should be protected. Under the exceptional view, the procedural ideal of separate actions by individual victims has an enormous influence on what rights get protected in the first place. If the right cannot be protected by the procedural ideal, then it is not protected.
The alternative view, in contrast, takes substantive rights as they are, and tailors the procedure to ensure their protection. Unlike the exceptional view, the functional view does not idealize any procedure. Instead, it sees procedure as subservient to the rights and interests that are implicated in a given case. In other words, if, under the exceptional view, function follows an imagined, idealized form, then under this alternative view, form follows, and is subsidiary to, the function the law is trying to achieve.
Accordingly, a further goal of this Article is to describe the awakening of this alternative, functional view of the class action. The awakening is subtle and fragile, and, as discussed below, it may simply be an aberration in the Court’s march to full adoption of the exceptional view of the class action. Indeed, the awakening can easily be reconciled with the exceptional view depending on the choices the Court makes going forward. As discussed below, the Court’s most recent class action decisions, most notably Epic Systems Corp. v. Lewis, have been, at best, agnostic with respect to these two different views.17
But the awakening also presents an opportunity for the Court to adopt the functional view, a view that, as argued below, is more appealing than the exceptional view and opens up other avenues of procedural innovation. It is also a view of the class action that better accords with the history and the purposes of the class action. In many ways, this nascent functional alternative is a throwback to a different era when courts were more willing to experiment with procedure for substantive ends. Thus, like the exceptional view, this alternative, functional view has its own deep channels.
The Article begins by discussing the development of the exceptional view in the Court’s recent class action decisions. It then discusses the awakening of an alternative, functional conception of the class action based upon the Court’s class action decisions during the October 2015 term. The third Part discusses the uncertain path forward for the alternative, functional view, its promise and historical support, and the roadblocks ahead. The Article then concludes.
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