Richard A. Nagareda


Compulsion “To Be a Witness” and the Resurrection of Boyd

Richard A. Nagareda

For more than a century, judges and commentators have sought to determine the proper meaning of the Self-Incrimination Clause of the Fifth Amendment . Although the Supreme Court during this period has expanded dramatically the scope of protection afforded by the Clause with regard to self-incriminatory oral statements, the Court has retreated steadily from its 1886 decision in Boyd v. United States, which had provided full-scale constitutional protection to self-incriminatory documents. In this Article Professor Nagareda draws upon the text of the Fifth Amendment, the content of related constitutional guarantees, and recent scholarship on the history of the privilege against self-incrimination to argue for a revival of the Fifth Amendment holding of Boyd. He concludes that the constitutional prohibition upon compulsion of a person “to be a witness” against himself is best understood as synonymous with the bar upon compulsion of a person “to give evidence” against himself found in state sources contemporaneous with the framing of the Bill of Rights. Such a reading not only supports the holding of Boyd but, more broadly, serves to clarify the relationship between the Fifth Amendment (as a categorical ban against the compelled giving of incriminatory evidence) and the Fourth Amendment (as a regulation of the unilateral taking of such evidence by government agents). At the same time, Professor Nagareda’s reading serves to underscore the textual support for much of modem self-incrimination jurisprudence including, most significantly, the use immunity doctrine.

Class Certification in the Age of Aggregate Proof

Richard A. Nagareda

Few pretrial motions in our civil justice system elicit as much controversy as those for the certification of class actions. This Article offers the first account of the challenges courts face today in light of an important series of federal appellate decisions that direct the district courts to resolve competing expert submissions on the class certification question during the pretrial stage, even when the dispute overlaps with the merits of the litigation.

Across broad swaths of class action litigation today, plaintiffs rely on aggregate proof—evidence, typically of an economic or statistical nature, that presupposes the cohesiveness of the aggregate unit for litigation and, from that perspective, seeks to reveal quantitatively a common wrong attributable to the defendant. Debates over the proper role of aggregate proof arise in what otherwise might seem disparate disputes over class certification across securities, antitrust, Racketeer Influenced and Corrupt Organizations Act (RICO), and employment discrimination litigation. Too often, however, courts have taken at face value the evidentiary form that aggregate proof assumes in motions for class certification.

This Article urges a new conceptualization of the challenges in class certification facing courts today. The real question about aggregate proof in class certification is not one that speaks to the relationship between the court and the factfinder in the (usually hypothetical) event of a class-wide trial. Rather, the institutional relationship that really matters is the one between the court and the legislature as expositors of governing law. Properly understood, aggregate proof frequently offers not so much a contested view of the facts but, more fundamentally, a contested account of governing law—one eminently suited for judicial resolution and appellate correction de novo, without concern about possible intrusion into the role of the factfinder.

This Article exposes how renewed attention to the judicial duty to “say what the law is” can lend coherence to the law of class certification, offering the first extended assessment of such controversial recent litigation as the civil RICO class action against the tobacco industry in connection with its marketing of light cigarettes and the employment discrimination class action—the largest certified class in history— against Wal-Mart concerning the pay and promotion of its hourly female employees. The Article concludes by relating the analysis of class certification tolarger changes in the civil justice system that seek in various ways to address the reality of settlement, rather than trial, as the endgame of litigation.