Symposium Articles

In a 2013 article, I explained that the Supreme Court and federal circuits had cut back significantly on plaintiffs’ ability to bring class actions. As I explain in this article, that trend has subsided. First, the Supreme Court has denied certiorari in several high-profile cases. Second, the Court’s most recent class action rulings have been narrow and fact specific. Third, the federal circuits have generally rejected defendants’ broad interpretations of Supreme Court precedents and arguments for further restrictions on class certification. One explanation for this new trend is that defendants have been overly aggressive in their arguments, losing credibility and causing courts to push back. Another is that courts are retreating from the view that pressure on defendants to settle is itself a reason to curtail class actions. It remains to be seen, however, whether this trend is the new normal, or merely a respite from the decline of class actions.

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.

Testing the Constitution

We live in the age of empiricism, and in that age, constitutional law is a relative backwater. Although quantitative methods have transformed entire fields of scholarly inquiry, reshaping what we ask and what we know, those who write about the Constitution rarely resort to quantitative methodology to test their theories. That seems unfortunate, because empirical analysis can illuminate important questions of constitutional law. Or, at least, that is the question to be tested in this Symposium.

We brought together a terrific group of scholars with a unique assignment. We paired distinguished constitutional thinkers with equally accomplished empiricists. We asked the law scholars to identify a core question, assumption, or doctrine from constitutional law, and we asked the empiricist to take a cut at answering it, or at least at figuring out how one might try to answer it. We understood that their answers might be preliminary at best, that the questions might be resistant to easy answers. This is so, in part, because empiricism is as much a means of refining questions as it is a way of answering them.

The balance of this Foreword is, in a sense, an introduction to the idea that more serious empirical analysis can further both constitutional law scholarship and constitutional law decisionmaking. Hence our title: Testing the Constitution.

Attorneys General as Amici

An important strain of federalism scholarship locates the primary value of federalism in how it carves up the political landscape, allowing groups that are out of power at the national level to flourish—and, significantly, to govern—in the states. On that account, partisanship, rather than a commitment to state authority as such, motivates state actors to act as checks on federal power. Our study examines partisan motivation in one area where state actors can, and do, advocate on behalf of state power: the Supreme Court. We compiled data on state amicus filings in Supreme Court cases from the 1979–2013 Terms and linked it up with data on the partisanship of state attorneys general (AGs). Focusing only on merits-stage briefs, we looked at each AG’s partisan affiliation and the partisanship of the AGs who either joined, or explicitly opposed, her briefs. If partisanship drives amicus activity, then we should see a strong negative relationship between the partisanship of AGs opposing each other and a strong positive relationship between those who cosign briefs.

What we found was somewhat surprising. States agreed far more often than they disagreed, and—until recently—most multistate briefs represented bipartisan, not partisan, coalitions of AGs. Indeed, for the first twenty years of our study, the cosigners of these briefs were generally indistinguishable from a random sampling of AGs then in office. The picture changes after 2000, when the coalitions of cosigners become decidedly more partisan, particularly among Republican AGs. The partisanship picture is also different for the 6% of cases in which different states square off in opposing briefs. In those cases, AGs do tend to join together in partisan clusters. Here, too, the appearance of partisanship becomes stronger after the mid-1990s.

Oliver Wendell Holmes’s notion of the marketplace of ideas—that the best test of truth is the power of an idea to get itself accepted in the competition of the market— is a central idea in free speech thought. Yet extant social science evidence provides at best mixed support for the metaphor’s veracity, and thus for the view that the truth of a proposition has substantial explanatory force in determining which propositions will be accepted and which not. But even if establishing an open marketplace for ideas is unlikely to produce a net gain in human knowledge, it may have other consequences. We illustrate how to empirically study the consequences of establishing or restricting a communicative domain. Our focus is on time, place, and manner restrictions, and we examine two potential natural experiments involving speech buffer zones around polling places and health care facilities providing abortions. Using a regression discontinuity design with geocoded polling information for over 1.3 million voters in two high-density jurisdictions (Hudson County and Manhattan), we provide suggestive evidence that speech restrictions in Hudson County reduced turnout amongst voters in the buffer zone. By failing to cue voters of the election, speech restrictions may have unanticipated costs. And using difference-in-differences and synthetic control matching with state-level data from 1973 to 2011, we illustrate how one might study the impact of speech restrictions around health care facilities. Although the evidence is limited, Massachusetts’s restrictions were accompanied, if anything, by a decrease in the abortion rate. Buffer zones might channel speech toward more persuasive forms, belying the notion that the cure for bad speech is plainly more speech.

An Empirical Study of the Roberts Court

Constitutional law casebooks, generations of constitutional lawyers, and the Justices themselves say that the Court is more likely to depart from precedent in constitutional cases than in other types. We test this assumption in cases decided by the Roberts Court and find, at odds with earlier studies, that the data provide inconclusive support for it. Other factors, especially criticism of precedent by lower courts and lawyers, are more consistent and stronger predictors of the Court’s decisions to depart from precedent. These findings have interesting implications for lawyering, teaching, and judging in the constitutional law context.