Home Slideshow

Bad Faith Prosecution

There is no shortage of claims by parties that their prosecutions are politically motivated, racially motivated, or just plain arbitrary. In our increasingly polarized society, such claims are more common than ever. Donald Trump campaigned on promises to lock up Hillary Clinton for her handling of State Department-related emails, but he subsequently complained that the special counsel’s investigation of his campaign’s alleged contacts with Russian operatives was a politically motivated witch hunt. Kenneth Starr’s pursuit of investigations of Bill Clinton evoked similar arguments of political motivation.1 1.See, e.g., Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 Iowa L. Rev. 393, 397 (2001) (using the Starr investigation as a point of departure for discussing prosecutorial abuses generally).Show More

The advent of “progressive” prosecutors will no doubt increase claims of bad faith prosecution, given their announcements of crimes they will and will not prosecute. Typically, they promise not to prosecute for lesser violations such as prostitution and drug possession.2 2.See Memorandum from Alvin L. Bragg, Jr., District Attorney, Cnty. of New York (Jan. 3, 2022), https://www.manhattanda.org/wp-content/uploads/2022/01/Day-One-Letter-Policies-1.03.2022.pdf [https://perma.cc/A336-ERT6] (announcing a policy to decline prosecution for, inter alia, marijuana misdemeanors, failing to pay a fare for public transportation, aggravated unlicensed operation, and prostitution); Jeffrey Bellin, Theories of Prosecution, 108 Calif. L. Rev. 1203, 1205–06 (2020) (providing examples of progressive prosecutors’ policies).Show More Although crime victims generally cannot complain that a perpetrator was not prosecuted, non-prosecution policies could strengthen claims of bad faith prosecution when prosecutors nevertheless prosecute some individuals for such delicts. In addition, candidates’ and officials’ statements that they intend to pursue certain individuals or groups may bolster claims of bad faith—as evidenced in Donald Trump’s arguments of political motivation for investigations by New York Attorney General Letitia James.3 3.See Complaint at 6, 11, 29, Trump v. James, No. 21-cv-01352, 2022 WL 1718951 (N.D.N.Y. May 27, 2022) (seeking declaratory and injunctive relief inter alia under 42 U.S.C. § 1983 to limit the investigation, and relying on numerous statements by James as a candidate and as the New York Attorney General with respect to Trump); Trump v. James, 2022 WL 1718951, at *19–20 (dismissing the complaint based on Younger [v. Harris, 401 U.S. 37 (1971),] abstention); id. at *13 (stating that the plaintiffs had not established that the subpoena enforcement action was commenced for a retaliatory purpose). Within days of the complaint being dismissed, the plaintiffs appealed. See Trump v. James,No. 21-cv-01352, 2022 WL 1718951 (N.D.N.Y. May 27, 2022), appeal docketed,No. 22-1175 (2d Cir. May 31, 2022).Show More

Introduction

The varying cries of “foul” raise questions as to what should count as a politically motivated, racially motivated, or generally bad faith prosecution. The pitfalls of too easy or too difficult a standard for showing selective prosecution are evident. The investigation and prosecution of Paul Manafort might not have occurred absent his political visibility, but one may not necessarily think that his evasion of income taxes should therefore be excused.4 4.See United States v. Manafort, 314 F. Supp. 3d 258, 272 (D.D.C. 2018) (refusing to suppress evidence from an allegedly overbroad search).Show More On the other hand, the fact that Yick Wo violated San Francisco’s ordinance against operating a laundry in a wooden building should not preclude a claim of discriminatory prosecution.5 5.See Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (“[T]he facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities . . . with a mind so unequal and oppressive as to amount to a practical denial . . . of that equal protection of the laws . . . .”). But cf. Gabriel J. Chin, Unexplainable on Grounds of Race: Doubts About Yick Wo, 2008 Ill. L. Rev. 1359, 1369–70, 1373, 1376 (arguing that the decision was based on an invasion of property rights and was not about discriminatory prosecution, although later cases attributed that meaning to Yick Wo).Show More

The Supreme Court has required relatively high standards for claims of race- or speech-motivated prosecution. Under Armstrong v. United States, defendants in criminal cases must make a significant showing to obtain discovery as to discriminatory purpose and effect.6 6.517 U.S. 456, 459–61, 463–65, 469–70 (1996).Show More And under Hartman v. Moore, plaintiffs seeking damages for a previous prosecution must allege the absence of probable cause in addition to bad motivation.7 7.547 U.S. 250, 260–61 (2006). There are, of course, other ways for checking prosecutorial abuse such as elections and criminal process. The criminal process provides for possible determinations by grand juries and judges that probable cause is lacking, including by way of motions for acquittal and appeals for insufficiency of evidence.Show More

Many have condemned the standards used by the Supreme Court as unduly limiting bad faith prosecution claims8 8.See, e.g., Alison Siegler & William Admussen, Discovering Racial Discrimination by the Police, 115 Nw. U. L. Rev. 987, 991 (2021) (criticizing difficulties of proof); John S. Clayton, Policing the Press: Retaliatory Arrests of Newsgatherers After Nieves v. Bartlett, 120 Colum. L. Rev. 2275, 2294–96 (2020); William J. Stuntz, Bordenkircher v. Hayes: Plea Bargaining and the Decline of the Rule of Law, in Criminal Procedure Stories 351, 369 (Carol S. Steiker ed., 2006); Richard H. McAdams, Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi.-Kent L. Rev. 605, 618 (1998); Anne Bowen Poulin, Prosecutorial Discretion and Selective Prosecution: Enforcing Protection After United States v. Armstrong, 34 Am. Crim. L. Rev. 1071, 1073–74 (1997); Melissa L. Jampol, Goodbye to the Defense of Selective Prosecution, 87 J. Crim. L. & Criminology 932, 963 (1997).Show More and as inconsistent with ordinary standards for proving cases of unconstitutional motivation.9 9.See Hartman v. Moore, 547 U.S. 250, 267 (2006) (Ginsburg, J., dissenting, joined by Breyer, J.); Kristin E. Kruse, Comment, Proving Discriminatory Intent in Selective Prosecution Challenges—An Alternative Approach to United States v. Armstrong, 58 SMU L. Rev. 1523, 1536 (2005) (recommending use of the employment discrimination framework from cases such as McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); cf. Nieves v. Bartlett, 139 S. Ct. 1715, 1730 (2019) (Gorsuch, J., concurring in part and dissenting in part) (in a damages case alleging an arrest in retaliation for speech, arguing that a showing of lack of probable cause should not be required by the Court because a constitutional violation did not require such a showing); id. at 1737 (Sotomayor, J., dissenting) (arguing that the standards of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), strike the proper balance between government interests and individual rights).Show More After all, if we look beyond the setting of criminal prosecutions, the Court has made it comparatively easier to vindicate rights in the face of constitutionally improper motivations. The Court in Mt. Healthy City School District Board of Education v. Doyle famously introduced a two-part test that requires, upon a showing by the plaintiff that a constitutionally improper motivation prompted his termination, the defendant to prove that the plaintiff’s termination would in any event have come to pass.10 10.429 U.S. 274, 286–87 (1977).Show More

In other words, the Mt. Healthy test—which has spread beyond its original First Amendment setting—more readily allows a claimant to have her claim heard on the merits.11 11.Under the 1991 amendments to Title VII, a plaintiff can prevail on the liability phase if the plaintiff shows that a factor such as race was “a motivating factor for an employment practice”; the defendant has a burden of persuasion at the remedy phase if the defendant wishes to show that the adverse employment action would have occurred for an alternative reason. 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B) (2018); see also George Rutherglen, Employment Discrimination Law 53–54 (5th ed. 2021) (discussing aforementioned statutes). The Court, however, has eschewed burden shifting under certain other employment discrimination statutes, see id.; Gross v. FBL Fin. Servs., 557 U.S. 167, 178–79 (2009) (not applying burden shifting in a case under the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) (2018)); id. at 179 (questioning the burden shifting approach generally). There may be some question, then, of whether the Court will continue to use the burden shifting framework where statutes do not specifically require it.Show More Why should a similar approach not hold sway in the setting of criminal prosecutions? We have a succinct answer to this question: the same approach should not apply because the setting of criminal prosecutions is fundamentally different.

To take up this argument, we first provide what we hope is a useful taxonomy of different types of claims of bad faith prosecution and the procedural settings in which they arise. We also describe the standards of proof in the different procedural settings. We then address criticisms that the standards of proof for bad faith prosecutions unduly deviate from the ordinary standards for proving unconstitutional motivation. We suggest that there are good reasons for requiring higher standards for showing bad faith prosecution as compared to other areas of alleged illicit motivation such as employment discrimination. There may be a presumption that criminal behavior, rather than bad faith, is the reason for prosecution of nontrivial violations.12 12.Cf. McAdams, supra note 8, at 653 (“Perhaps the more fundamental basis for hostility to selective prosecution claims is that they are presented by the guilty.”).Show More And despite the academic chorus reprobating prosecutorial discretion,13 13.See, e.g., William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 511–12, 579–81 (2001) (arguing that prosecutorial discretion leads to over-criminalization but suggesting difficulties with eliminating such discretion); Stuntz, supra note 8, at 379 (arguing that prosecutorial discretion gives too much power to prosecutors, upsetting our system of checks and balances); Leslie B. Arffa, Note, Separation of Prosecutors, 128 Yale L.J. 1078, 1082 (2019) (noting that many see prosecutorial power as a central problem of the American criminal justice system); Hon. J. Harvie Wilkinson, In Defense of American Criminal Justice, 67 Vand. L. Rev. 1099, 1104–05, 1129–31 (2014) (describing critiques of prosecutorial discretion and citing authority).Show More greater judicial scrutiny of prosecutorial motives may be less helpful than safeguards within prosecutors’ offices—as Professor Barkow has argued.14 14.See Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 Stan. L. Rev. 869, 908–09 (2009); Wilkinson, supra note 13, at 1132 (providing reasons for prosecutorial discretion); Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 379–81 (1973) (detailing reasons why judicial review of prosecutorial discretion would be undesirable); cf. Hannah Shaffer, Prosecutors, Race, and the Criminal Pipeline, U. Chi. L. Rev. (forthcoming 2023) (manuscript at 1–2) (suggesting that limiting prosecutorial discretion or blinding them to defendants’ race may inadvertently offset prosecutors’ giving less weight to the criminal records of Black defendants than white defendants in decisions affecting incarceration); id. (manuscript at 25–26, 37, 45, 54) (not attributing the lesser weight to records of Black defendants to progressive elected prosecutors, although finding that beliefs of individual prosecutors affected results). Our views thus could be characterized as a “checks and balances” approach, under which prosecutors’ offices adopt organizational structures that reduce incentives and opportunities to pursue constitutionally improper motives, rather than a “separation of powers” approach—that is, an approach that involves other branches of government—to regulate prosecutorial discretion. See Daniel Epps, Checks and Balances in the Criminal Law, 74 Vand. L. Rev. 1, 4–5 (2021) (contrasting checks and balances approaches with separation of powers approaches); id. at 73–74 (recommending separation of functions within prosecutors’ offices, as suggested by Barkow).Show More This does not mean that prosecutors’ offices should be immune from scrutiny, but it may suggest that Armstrong’s and Hartman’s hurdles to opening up judicial review of prosecutorial motives are appropriate.

In addition, we discuss the special difficulties of addressing political and racial motivations in the prosecutorial setting. While all deplore politically motivated prosecutions, there are difficulties in drawing lines between appropriate and inappropriate political influences on prosecutorial policies and decisions,15 15.Cf. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2573 (2019) (discussing that agency decisions are often informed by politics).Show More which in turn suggests high standards of proof. What is more, the Court assumes that disparate racial impact evidence may hold reduced probative value in the prosecution context, given the difficulties of determining the populations of those who might have been prosecuted but were not.16 16.See Sandra G. Mayson, Bias In, Bias Out, 128 Yale L.J. 2218, 2257–58 (2019) (referring to studies suggesting some crimes may be committed disproportionately by different groups); Jennifer L. Skeem & Christopher T. Lowenkamp, Risk, Race and Recidivism: Predictive Bias and Disparate Impact, 54 Criminology 680, 690 (2016) (noting the debate as to whether differential participation or differential selection causes racial disparities in criminal justice).Show More

We also address other arguable inconsistencies between the standards for bad faith prosecution claims and related areas and offer resolutions. (1) In damages (Hartman) cases, the plaintiff must make a showing of no-probable-cause that is not required when a motion is brought in a criminal proceeding (Armstrong cases), but we conclude that the difference is warranted. (2) In retaliatory arrest claims, the Court in Nieves v. Bartlett allowed for an exception to the no-probable-cause showing for minor crimes that rarely evoke enforcement,17 17.139 S. Ct. 1715, 1724, 1727 (2019).Show More but it is unclear whether such an exception exists for Hartman retaliatory prosecution claims. We suggest recognition of such an exception for bad faith prosecution claims. (3) Some lower federal courts have more easily allowed discovery with respect to claims in criminal cases of discriminatory “enforcement” as distinguished from Armstrong discriminatory “prosecution” motions.18 18.See, e.g., United States v. Washington, 869 F.3d 193, 220–21 (3d Cir. 2017); infra note 70 (describing differing views in the circuit courts).Show More We suggest that the experience with broader discovery warrants continuing caution in loosening discovery for bad faith prosecution claims. (4) Lower federal courts have prescribed somewhat different elements for damages claims under various theories in the nature of malicious prosecution.19 19.See Erin E. McMannon, The Demise of § 1983 Malicious Prosecution: Separating Tort Law from the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1485, 1493 (2019) (discussing varying standards and citing cases and secondary authority); Lyle Kossis, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1646–48 (2013) (discussing various standards).Show More For example, there is an issue of whether malicious prosecution claims brought under the Fourth Amendment require proof of subjective bad motivation.20 20.See, e.g., Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99–101 (1st Cir. 2013) (alluding to differences among the circuits).Show More We suggest a way to make the standards more uniform across different types of claims.21 21.Compare Kossis, supra note 19, at 1662–63 (favoring use of common law elements), with McMannon, supra note 19, at 1504 (disfavoring use of common law elements in favor of a Fourth Amendment-based framework).Show More

Finally, we show how the rise of progressive prosecutors may make proof of bad faith prosecutions easier. That is because policies of non-prosecution will provide claimants with more comparators for making out their claims.

Part I discusses what we mean by bad faith prosecution, and we provide a taxonomy of bad faith prosecution claims arising under different constitutional provisions and as they arise in particular procedural settings. Although we principally focus on claims that a prosecution was motivated by race or speech, we also describe other theories that may support a claim of bad faith prosecution. Part II describes the standards of proof for bad faith prosecution claims as they arise in different procedural contexts. Part III addresses criticisms that these standards are too high and inconsistent with other claims involving subjective ill will and provides rationales for the elevated standards for bad faith prosecution. Part IV briefly considers whether certain other inconsistencies in the doctrine suggest changes to requirements for proving bad faith prosecutions. Part V discusses the possible impact of progressive prosecutors on claims of bad faith prosecution.

  1.  See, e.g., Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 Iowa L. Rev. 393, 397 (2001) (using the Starr investigation as a point of departure for discussing prosecutorial abuses generally). ↑
  2.  See Memorandum from Alvin L. Bragg, Jr., District Attorney, Cnty. of New York (Jan. 3, 2022), https://www.manhattanda.org/wp-content/uploads/2022/01/Day-One-Letter-Policies-1.03.2022.pdf [https://perma.cc/A336-ERT6] (announcing a policy to decline prosecution for, inter alia, marijuana misdemeanors, failing to pay a fare for public transportation, aggravated unlicensed operation, and prostitution); Jeffrey Bellin, Theories of Prosecution, 108 Calif. L. Rev. 1203, 1205–06 (2020) (providing examples of progressive prosecutors’ policies). ↑
  3.  See Complaint at 6, 11, 29, Trump v. James, No. 21-cv-01352, 2022 WL 1718951 (N.D.N.Y. May 27, 2022) (seeking declaratory and injunctive relief inter alia under 42 U.S.C. § 1983 to limit the investigation, and relying on numerous statements by James as a candidate and as the New York Attorney General with respect to Trump); Trump v. James, 2022 WL 1718951, at *19–20 (dismissing the complaint based on Younger [v. Harris, 401 U.S. 37 (1971),] abstention); id. at *13 (stating that the plaintiffs had not established that the subpoena enforcement action was commenced for a retaliatory purpose). Within days of the complaint being dismissed, the plaintiffs appealed. See Trump v. James, No. 21-cv-01352, 2022 WL 1718951 (N.D.N.Y. May 27, 2022), appeal docketed, No. 22-1175 (2d Cir. May 31, 2022). ↑
  4.  See United States v. Manafort, 314 F. Supp. 3d 258, 272 (D.D.C. 2018) (refusing to suppress evidence from an allegedly overbroad search). ↑
  5.  See Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (“[T]he facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities . . . with a mind so unequal and oppressive as to amount to a practical denial . . . of that equal protection of the laws . . . .”). But cf. Gabriel J. Chin, Unexplainable on Grounds of Race: Doubts About Yick Wo, 2008 Ill. L. Rev. 1359, 1369–70, 1373, 1376 (arguing that the decision was based on an invasion of property rights and was not about discriminatory prosecution, although later cases attributed that meaning to Yick Wo). ↑
  6.  517 U.S. 456, 459–61, 463–65, 469–70 (1996). ↑
  7.  547 U.S. 250, 260–61 (2006). There are, of course, other ways for checking prosecutorial abuse such as elections and criminal process. The criminal process provides for possible determinations by grand juries and judges that probable cause is lacking, including by way of motions for acquittal and appeals for insufficiency of evidence. ↑
  8.  See, e.g., Alison Siegler & William Admussen, Discovering Racial Discrimination by the Police, 115 Nw. U. L. Rev. 987, 991 (2021) (criticizing difficulties of proof); John S. Clayton, Policing the Press: Retaliatory Arrests of Newsgatherers After Nieves v. Bartlett, 120 Colum. L. Rev. 2275, 2294–96 (2020); William J. Stuntz, Bordenkircher v. Hayes: Plea Bargaining and the Decline of the Rule of Law, in Criminal Procedure Stories 351, 369 (Carol S. Steiker ed., 2006); Richard H. McAdams, Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi.-Kent L. Rev. 605, 618 (1998); Anne Bowen Poulin, Prosecutorial Discretion and Selective Prosecution: Enforcing Protection After United States v. Armstrong, 34 Am. Crim. L. Rev. 1071, 1073–74 (1997); Melissa L. Jampol, Goodbye to the Defense of Selective Prosecution, 87 J. Crim. L. & Criminology 932, 963 (1997). ↑
  9.  See Hartman v. Moore, 547 U.S. 250, 267 (2006) (Ginsburg, J., dissenting, joined by Breyer, J.); Kristin E. Kruse, Comment, Proving Discriminatory Intent in Selective Prosecution Challenges—An Alternative Approach to United States v. Armstrong, 58 SMU L. Rev. 1523, 1536 (2005) (recommending use of the employment discrimination framework from cases such as McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); cf. Nieves v. Bartlett, 139 S. Ct. 1715, 1730 (2019) (Gorsuch, J., concurring in part and dissenting in part) (in a damages case alleging an arrest in retaliation for speech, arguing that a showing of lack of probable cause should not be required by the Court because a constitutional violation did not require such a showing); id. at 1737 (Sotomayor, J., dissenting) (arguing that the standards of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), strike the proper balance between government interests and individual rights). ↑
  10.  429 U.S. 274, 286–87 (1977). ↑
  11.  Under the 1991 amendments to Title VII, a plaintiff can prevail on the liability phase if the plaintiff shows that a factor such as race was “a motivating factor for an employment practice”; the defendant has a burden of persuasion at the remedy phase if the defendant wishes to show that the adverse employment action would have occurred for an alternative reason. 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B) (2018); see also George Rutherglen, Employment Discrimination Law 53–54 (5th ed. 2021) (discussing aforementioned statutes). The Court, however, has eschewed burden shifting under certain other employment discrimination statutes, see id.; Gross v. FBL Fin. Servs., 557 U.S. 167, 178–79 (2009) (not applying burden shifting in a case under the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) (2018)); id. at 179 (questioning the burden shifting approach generally). There may be some question, then, of whether the Court will continue to use the burden shifting framework where statutes do not specifically require it. ↑
  12.  Cf. McAdams, supra note 8, at 653 (“Perhaps the more fundamental basis for hostility to selective prosecution claims is that they are presented by the guilty.”). ↑
  13.  See, e.g., William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 511–12, 579–81 (2001) (arguing that prosecutorial discretion leads to over-criminalization but suggesting difficulties with eliminating such discretion); Stuntz, supra note 8, at 379 (arguing that prosecutorial discretion gives too much power to prosecutors, upsetting our system of checks and balances); Leslie B. Arffa, Note, Separation of Prosecutors, 128 Yale L.J. 1078, 1082 (2019) (noting that many see prosecutorial power as a central problem of the American criminal justice system); Hon. J. Harvie Wilkinson, In Defense of American Criminal Justice, 67 Vand. L. Rev. 1099, 1104–05, 1129–31 (2014) (describing critiques of prosecutorial discretion and citing authority). ↑
  14.  See Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 Stan. L. Rev. 869, 908–09 (2009); Wilkinson, supra note 13, at 1132 (providing reasons for prosecutorial discretion); Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 379–81 (1973) (detailing reasons why judicial review of prosecutorial discretion would be undesirable); cf. Hannah Shaffer, Prosecutors, Race, and the Criminal Pipeline, U. Chi. L. Rev. (forthcoming 2023) (manuscript at 1–2) (suggesting that limiting prosecutorial discretion or blinding them to defendants’ race may inadvertently offset prosecutors’ giving less weight to the criminal records of Black defendants than white defendants in decisions affecting incarceration); id. (manuscript at 25–26, 37, 45, 54) (not attributing the lesser weight to records of Black defendants to progressive elected prosecutors, although finding that beliefs of individual prosecutors affected results). Our views thus could be characterized as a “checks and balances” approach, under which prosecutors’ offices adopt organizational structures that reduce incentives and opportunities to pursue constitutionally improper motives, rather than a “separation of powers” approach—that is, an approach that involves other branches of government—to regulate prosecutorial discretion. See Daniel Epps, Checks and Balances in the Criminal Law, 74 Vand. L. Rev. 1, 4–5 (2021) (contrasting checks and balances approaches with separation of powers approaches); id. at 73–74 (recommending separation of functions within prosecutors’ offices, as suggested by Barkow). ↑
  15.  Cf. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2573 (2019) (discussing that agency decisions are often informed by politics). ↑
  16.  See Sandra G. Mayson, Bias In, Bias Out, 128 Yale L.J. 2218, 2257–58 (2019) (referring to studies suggesting some crimes may be committed disproportionately by different groups); Jennifer L. Skeem & Christopher T. Lowenkamp, Risk, Race and Recidivism: Predictive Bias and Disparate Impact, 54 Criminology 680, 690 (2016) (noting the debate as to whether differential participation or differential selection causes racial disparities in criminal justice). ↑
  17.  139 S. Ct. 1715, 1724, 1727 (2019). ↑
  18.  See, e.g., United States v. Washington, 869 F.3d 193, 220–21 (3d Cir. 2017); infra note 70 (describing differing views in the circuit courts). ↑
  19.  See Erin E. McMannon, The Demise of § 1983 Malicious Prosecution: Separating Tort Law from the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1485, 1493 (2019) (discussing varying standards and citing cases and secondary authority); Lyle Kossis, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1646–48 (2013) (discussing various standards). ↑
  20.  See, e.g., Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99–101 (1st Cir. 2013) (alluding to differences among the circuits). ↑

  21.  Compare Kossis, supra note 19, at 1662–63 (favoring use of common law elements), with McMannon, supra note 19, at 1504 (disfavoring use of common law elements in favor of a Fourth Amendment-based framework). ↑

Relational Fairness in the Administrative State

­

The American administrative state suffers from widespread claims of normative illegitimacy because administrative agencies and their personnel are neither enshrined in the Constitution nor directly elected. As a result, Supreme Court Justices and commentators openly question whether agencies should be able to compel citizens to follow agency actions. Normative legitimacy is important to administrative agencies because it explains why people have moral duties to obey agency rules, including rules with which they may disagree, even though agencies lack the traditional hallmarks of democratic governance.

This Article answers the critics head-on by proposing a new theory of normative legitimacy for the administrative state called “relational fairness.” Relational fairness states that all persons potentially affected by agency action must have the opportunity to deliberate with the agency during administrative decision-making according to certain procedural, relational, and substantive values. In contrast to previous theories that attempted to legitimate agencies by connecting them to other political institutions, relational fairness articulates how the administrative state can attain normative legitimacy in its own right by establishing a new democratic relationship between agencies and citizens.

Although some courts have shown implicit concern for relational fairness, fully adopting the theory would lead to important doctrinal and policy changes to improve the legitimacy of the American administrative state. Relational fairness leads to a deferential form of arbitrariness review that reduces the ability of judges to insert their own ideological ends, reintroduces the importance of regulating agency ex parte communications, and unifies legal rules on valid agency usage of guidance documents. The theory also argues notice-and-comment rulemaking is illegitimate and advocates for alternative informal rulemaking structures to improve the legitimacy of agencies.

Introduction

Since the New Deal ushered in the contemporary administrative state, lawyers and scholars have attempted to legitimate its place in our democratic government.1 1.Michael P. Vandenbergh, The Private Life of Public Law, 105 Colum. L. Rev. 2029, 2035 (2005) (“Agencies are neither mentioned in the Constitution nor directly responsive to the electorate, leaving their democratic legitimacy unclear.”).Show More The task is difficult. Unlike Congress and the President, agency staff are not elected.2 2.U.S. Const. art. III. The Constitution does mention “[d]epartments” in the Opinions Clause, so the Framers perhaps contemplated the existence of some type of agency. Id. art. II, § 2, cl. 1. However, there is no substantive discussion of the form or structure such institutions should take.Show More Unlike the judiciary, the Constitution does not delineate the structure of agencies.3 3.Edward H. Stiglitz, Delegating for Trust, 166 U. Pa. L. Rev. 633, 635 (2018) (“The administrative state is an awkward creature in our constitutional system—in the eyes of many, an unseemly chimera . . . .”).Show More The fact that agencies express power through methods that span the branches makes things even more problematic for their legitimation.4 4.Administrative Procedure Act, 5 U.S.C. §§ 553–554. Some administrative action falls under the Take Care Clause. U.S. Const. art. II, § 3. The constitutional derivation of the independent agency and “mixed” agencies, which perform both rulemaking and adjudication, is more complicated. See Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935) (holding that the President has limited removal power over agency officials acting in a “quasi-legislative and quasi-judicial” capacity).Show More Executing laws is the province of the executive, rulemaking looks like legislation, and adjudications mimic the work of the judiciary.5 5.“Administrative state” comprises the group of political institutions in government not located in Congress or the Executive Office that therefore have some insulation from these branches. This being said, as Datla and Revesz show, the level of agency independence from the branches is a matter of degree and not a binary variable. Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 772–73 (2013). “The administrative state” is commonly used to describe the post-New Deal conglomeration of independent and executive agencies and has its origin in nineteenth-century French and German writings on administration (“1’état administratif” and “die verwaltungsstaat,” respectively). Mark Rutgers, Beyond Woodrow Wilson: The Identity of the Study of Public Administration in Historical Perspective, 29 Admin. & Soc’y 276, 285–90 (1997); see also Dwight Waldo, The Administrative State (1948) (popularizing the term “the administrative state” to American audiences).Show More These features put the administrative state6 6.For examples, see infra note 18.Show More in an uncomfortable position in our democratic system.7 7.Cynthia R. Farina et al., Rulemaking in 140 Characters or Less: Social Networking and Public Participation in Rulemaking, 31 Pace L. Rev. 382, 385 (2011) [hereinafter Farina et al., Rulemaking in 140 Characters].Show More

Despite this problem of administrative legitimation, agencies express power to regulate seemingly every aspect of modern life.8 8.John M. de Figueiredo & Edward H. Stiglitz, Democratic Rulemaking, in 3 The Oxford Handbook of Law and Economics 38 (Francesco Parisi ed., 2017).Show More In 2013, administrative agencies finalized over 2,800 rules.9 9.Regulatory Information Database, U.S. Gen. Servs. Admin., https://www.reginfo.gov [https://perma.cc/7VVD-2U6Z] (last visited Mar. 12, 2023).Show More Fifty-one of those rules each had over $100 million in economic effects.10 10.Bernardo Zacka, When the State Meets the Street 9 (2017).Show More Agencies are also responsible for regulating and administrating important programs, such as Medicaid, Medicare, Social Security, and the Veterans Health Administration, that directly affect the lives of millions. Bureaucrats make crucial decisions that govern citizens across the country, including deciding who is eligible for public services and how much of these services they will receive.11 11.K. Sabeel Rahman, Democracy Against Domination 144 (2016) (“[A]gencies are, in practice, the primary sites of policymaking, giving specificity and concreteness to broad legislative directives.”).Show More In short, agencies are the primary site of policymaking in contemporary democratic governance.12 12.Normative legitimacy is also called “moral legitimacy.” Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1794–802 (2005).Show More

Do people who disagree with agency decisions still have moral duties to obey those actions? This is a question of normative legitimacy, which determines whether people have moral obligations to follow agency actions.13 13.Descriptive legitimacy is also called “sociological legitimacy.”Show More Normative legitimacy is different from descriptive legitimacy, which describes why people subjectively believe they should follow agency actions.14 14.Id.Show More It is also different from legality: whether rules are validly generated through the rule-generating conventions of a polity.15 15.This definition is derived from John Rawls. John Rawls, Political Liberalism 224–26 (expanded ed. 2005) [hereinafter Rawls, Political Liberalism].Show More Normative legitimacy requires the justification of agency power over citizens and organizations such that these persons have a moral duty to comply with agency actions, even if they disagree with particular agency decisions.16 16.See infra Part II.Show More Legal commentators have previously proposed multiple theories to legitimate administrative agencies. Although these previous theories are intuitively attractive, they all run into well-known problems.17 17.See, e.g., Philip Hamburger, Is Administrative Law Unlawful? 355 (2014) (“[C]an the Secretary of the Department of Agriculture legislate? He is not a representative body, let alone the constitutionally established representative body. So how can he be assumed to legislate with consent of the people? And if without their consent . . . how can his commands have any legal obligation?”); R. Shep Melnick, The Transformation of Title IX 251 (2018) (criticizing court-agency “leapfrogging” that incrementally increases agencies’ authority without requiring them to accumulate evidence, experience, or public input); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1231 (1994) (arguing that the post-New Deal administrative state is unconstitutional); see also Gillian E. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 8–33 (2017) (discussing the recent attacks on the administrative state).Show More

The inability of lawyers and legal scholars to normatively legitimate agencies has led to fierce criticism that agencies conflict with our democratic government;18 18.See, e.g., Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring) (stating that the major questions and nondelegation doctrines prevent “government by bureaucracy supplanting government by the people” (quoting Antonin Scalia, A Note on the Benzene Case, 4 Regulation 25, 27 (July/Aug. 1980))); Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 91 (2015) (Thomas, J., concurring) (referring to “an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure”); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 108 (2015) (Alito, J., concurring in part) (describing a U.S. Court of Appeals for the D.C. Circuit procedural innovation as “prompted by an understandable concern about the aggrandizement of the power of administrative agencies”); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010) (“The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.”).Show More a view that is increasingly gaining traction on the Supreme Court.19 19.140 S. Ct. 2183, 2207 (2020).Show More In his recent majority opinion in Seila Law LLC v. Consumer Financial Protection Bureau ruling that the structure of the Consumer Financial Protection Bureau (“CFPB”) violated the separation of powers,20 20.Id. at 2200.Show More Chief Justice Roberts wrote that the liberty of the citizenry was threatened by the Bureau’s independent director because the CFPB Director could “bring the coercive power of the state to bear on millions of private citizens and businesses.”21 21.See supra note 19.Show More Other Justices have echoed the Chief Justice’s concern in multiple recent administrative law cases.22 22.See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1758–66 (2007) (discussing shifts in administrative law doctrine as courts have shifted their operating theories of administrative legitimacy over the twentieth century).Show More

The longstanding inability to legitimate the administrative state has caused sweeping changes to administrative law as scholars and judges have searched for a theory to justify and structure agency policymaking.23 23.See Ronald M. Levin, Rulemaking and the Guidance Exemption, 70 Admin. L. Rev. 263, 268 (2018) (“[C]ourts have not developed a coherent theory as to what an interpretive rule is.”); Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 Duke L.J. 1051, 1065–66 (1995) (“[T]he arbitrary and capricious standard is relatively open-ended, and the Supreme Court has not given it more precise content.”); Louis J. Virelli III, Deconstructing Arbitrary and Capricious Review, 92 N.C. L. Rev. 721, 750, 751 n.116 (2014) (noting “the apparent difficulty experienced by the Court in articulating a consistent, coherent framework for explaining its reasoning” during hard look review).Show More The accumulation of these doctrinal changes over time has caused multiple areas of administrative law, including arbitrariness review and agency use of the Administrative Procedure Act’s (“APA”) exceptions to notice-and-comment rulemaking, to lack coherent organizing principles.24 24.See infra Subsection IV.A.2.ii (discussing persistent circuit splits and courts failing to provide a rule in cases regarding whether agencies correctly utilized APA exceptions to notice-and-comment).Show More At worst, these doctrinal shifts have led to persistent circuit splits and left courts confused when attempting to determine the governing rules for the cases before them.25 25.See Metzger, supra note 18, at 7 (arguing that the administrative state promotes good government and constrains executive power); Adrian Vermeule, Bureaucracy and Distrust: Landis, Jaffe, and Kagan on the Administrative State, 130 Harv. L. Rev. 2463, 2487–88 (2017) (endorsing a “pluralist” approach to legitimizing the administrative state and criticizing various “independence” theories); Cass R. Sunstein & Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 Sup. Ct. Rev. 41, 44 (claiming that the administrative state provides benefits like government efficiency, coordinated policymaking, and energetic execution of the laws).Show More

While supporters of contemporary administrative governance have recently defended it on legal and policy grounds,26 26.See Blake Emerson, Liberty and Democracy Through the Administrative State: A Critique of the Roberts Court’s Political Theory, 73 Hastings L.J. 371, 375 (2022) [hereinafter Emerson, Liberty and Democracy Through the Administrative State] (“The Court’s most vocal defenders of the administrative state, Justice Kagan and Justice Breyer, tend to wave away the conservatives’ high-altitude critique of the regulatory state.”); see also Vermeule, supra note 26, at 2463 (focusing on the descriptive legitimacy of the administrative state); Cass R. Sunstein & Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State 3 n.5 (2020) (focusing on the legal legitimacy of the administrative state). But see Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 165–75 (2019) [hereinafter Emerson, The Public’s Law] (arguing for a democratization of agency policymaking partly on legitimacy grounds).Show More they have largely not addressed critics’ attacks on the normative legitimacy of the administrative state.27 27.See Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev. 265, 271–72 (2019) (forgoing federal administrative legitimacy and looking to state administrative institutions for legitimacy); Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 Chi.-Kent L. Rev. 987, 989 (1997) (arguing there is no unified theory of democratic legitimation of the administrative state); Mark Seidenfeld, The Quixotic Quest for a “Unified” Theory of the Administrative State, in Issues in Legal Scholarship, 2005, at 15 (same); Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276, 1381 (1984) (same).Show More The theoretical task is so daunting that some supporters of administrative governance argue that we should give up looking for a theory of normative administrative legitimacy.28 28.Camilla Stivers, Governance in Dark Times: Practical Philosophy for Public Service 10–11 (2008).Show More

This concession is a mistake. The Chief Justice in Seila Law is correct to worry about the power of administrative agencies because they exert vast powers over citizens and organizations in our society.29 29.See Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L.J. 804, 811 (2014) (arguing that administrative law has been dominated by concerns about democratic control of agencies by Congress or the President); Peter L. Strauss, Legislation That Isn’t—Attending to Rulemaking’s “Democracy Deficit”, 98 Calif. L. Rev. 1351, 1357 (2010) (arguing that agency discretion is legitimated by judicial review).Show More Administrative power must be legitimated on normative grounds in democratic governance. The question is whether supporters of administrative governance can rise to this challenge to answer the Justices’ concerns. This Article addresses the concerns of the Chief Justice and recent critics head-on to generate a theory of administrative legitimacy that gives the administrative state a proper place in our democratic government.

Most previous theories of administrative legitimacy attempted to legitimate agencies through a “derivative” method of legitimacy, linking agencies to other institutions, such as Congress, the president, or courts.30 30.See infra Section II.E.Show More While intuitively appealing, legitimating agencies through other institutions runs into problems due to the distinctive structure and function of agencies.31 31.Richard Stewart’s interest representation and Mark Seidenfeld’s civic republicanism are two notable exceptions. See infra Section II.D (critiquing civic republicanism); see infra Subsection III.A.1 (critiquing interest group representation). More recently, a few scholars, such as Blake Emerson, Sabeel Rahman, and Dan Walters, have also focused their analysis on agency structure and process. See infra Section III.D (discussing these recent theories).Show More Instead, this Article develops a “direct” theory of legitimacy that legitimates the administrative state on its own terms. Interestingly, one intuition underlying previous derivative theories is the belief that linking agencies to other institutions can indirectly connect agencies to citizens. Therefore, a promising route to directly legitimate agencies is to cut out the middle institution and focus on the structure of the actual relationship between agencies and citizens.

Surprisingly, lawyers and scholars have spent little time theoretically analyzing the direct relationships between agencies and persons when theorizing about the legitimacy of the administrative state.32 32.See Anya Bernstein & Cristina Rodríguez, The Accountable Bureaucrat, 132 Yale L.J. 1600, 1607–09 (2023); Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, 36 Yale J. on Regul. 165, 191–200 (2019).Show More This being said, recent empirical work has highlighted the role that deeply embedded relationships between agency officials and persons serve to substantiate important administrative values, such as agency effectiveness and democratic accountability, in practice.33 33.See infra Section III.C.Show More The importance of the relationships between agencies and persons to our administrative state demands proper theorization.

This Article develops the theory of relational fairness to normatively legitimate administrative governance as part of our democratic government. Relational fairness states that all persons potentially affected by an agency action must have the opportunity to deliberate with the agency during administrative decision-making.34 34.See infra Subsection III.C.3.Show More The theory reveals that agencies stand in different normative relationships with persons based on whether a person is potentially affected by a prospective agency action. Relational fairness articulates how the administrative state itself should be structured to attain normative legitimacy based on its own relationships with members of civil society, rather than derivatively through its connections to other institutions.

Relational fairness contains three components: procedural values, relational values, and substantive safeguards. The theory begins with familiar procedural values to structure agency deliberation with affected parties as open, voluntary, equal in access, and ongoing. It continues with substantive safeguards that limit the potential results of agency deliberations according to certain constitutional and deliberative requirements. However, relational fairness departs from existing theories by shaping the interpersonal relations between agencies and affected persons on the grounds of equal status, respect, and good faith. Practically, including relational values in the theory allows relational fairness to address persistent political inequalities between persons in administrative policymaking that procedural and substantive reforms alone cannot solve.35 35.See infra Part IV.Show More

Although some courts have implicitly embraced relational fairness, fully adopting the theory would lead to important doctrinal and policy changes to improve the legitimacy of the American administrative state.36 36.See infra Subsection IV.A.1.Show More Importantly, relational fairness organizes the various parts of arbitrariness review based on whether a regulation is “arbitrary and capricious” from the perspective of affected persons. Surprisingly, focusing on the perspective of affected persons provides both justification and content for a deferential form of arbitrariness review that leaves less room for judges to insert their own ideological beliefs during judicial review.37 37.See infra Subsection IV.A.2.Show More

Relational fairness also demonstrates that the growing movement to improve administrative governance through a focus on internal administrative law has been hitherto blind to the profound effect that internal agency rules can have on the relationship between agencies and affected parties.38 38.See infra Subsection IV.B.1.Show More The doctrines of ex parte communications and the APA exceptions to informal rulemaking demonstrate this tension between relational fairness and internal administrative law. Instead of recent calls to enhance agency power in these areas, relational fairness advocates that Congress should require agency disclosure of ex parte communications to all affected parties and that federal courts should adopt a unified legal test to review whether agencies validly used an APA exception to notice-and-comment based on whether the agency action in question binds potentially affected parties.

Relational fairness reconceptualizes the value of public participation in administrative law.39 39.See infra Subsection IV.B.1.Show More The theory argues that members of civil society stand in distinct normative relationships with agencies, which should inform how we structure public participation during agency policymaking. When we view participation in this light, notice-and-comment rulemaking appears deficient on legitimacy grounds because of the political inequalities it generates for marginalized and geographically dispersed affected persons.40 40.See infra Subsections IV.B.2, IV.B.3.Show More Some congressional and agency reforms to notice-and-comment, such as negotiated rulemaking, serve as helpful guides to improve informal rulemaking, while others, such as most e-rulemaking efforts, fail to eliminate the problems in notice-and-comment.41 41.See infra Section I.B.Show More

Relational fairness resolves multiple problems endemic to administrative law. These problems include the ability of agencies to generate moral obligations on citizens to follow agency rules, the tension between democracy and administration, and the mood of agency distrust that permeates administrative law.footnote_id_43_42 Relational fairness responds to Chief Justice Roberts and others concerned with agency power over citizens by showing how to properly structure the direct relationship between agencies and the persons they govern to legitimate agency power to govern. By normatively legitimating the administrative state, relational fairness allows agencies to take their place as part of our democratic government.

This Article unfolds as follows. Part I demonstrates the legal importance of normatively legitimating the administrative state and begins to construct a theory of administrative legitimacy. Part II contends that although previously proposed theories of administrative legitimacy are intuitively appealing, they each run into problems. Instead of seeking a pluralistic account of legitimacy that combines these theories, this Part identifies their underlying similarities to shape an alternative theory based on the direct relationship between agencies and persons. Part III creates the theory of relational fairness, which legitimates the administrative state from the bottom up by properly structuring the direct relationship between agencies and citizens based on the distinctive institutional features of agencies. Importantly, relational fairness can legitimate agencies as part of our democratic government once we embrace a conception of democratic participation that moves beyond merely viewing elections as sufficient for democratic governance.

Part IV discusses how some courts have already implicitly embraced relational fairness and demonstrates how to fully implement the theory in order to improve the legitimacy of the American administrative state. This Part explains how relational fairness should guide reform in multiple areas of administrative law, including arbitrariness review, ex parte communications, and the APA exceptions to informal rulemaking. It also argues that notice-and-comment rulemaking is deficient on legitimacy grounds and proposes potential reforms to improve the legitimacy of informal rulemaking. Part V rebuts three criticisms to applying relational fairness: inefficiency, regulatory capture, and the implementation of the theory.

  1.  See, e.g., James O. Freedman, Crisis and Legitimacy: The Administrative Process and American Government 6 (1978) (discussing the longstanding crisis of legitimacy surrounding the administrative state); James M. Landis, The Administrative Process 1 (1938) (discussing how the administrative state can improve modern governance); Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2383–84 (2001) (endorsing the trend toward greater presidential control over administrative agencies); Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511, 1515 (1992) (arguing that civic republican theory provides legitimacy for the administrative state); Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1767, 1802 (1975) (arguing against the ability of the interest representation theory to legitimate the administrative state). ↑

  2.  Michael P. Vandenbergh, The Private Life of Public Law, 105 Colum. L. Rev. 2029, 2035 (2005) (“Agencies are neither mentioned in the Constitution nor directly responsive to the electorate, leaving their democratic legitimacy unclear.”). ↑

  3.  U.S. Const. art. III. The Constitution does mention “[d]epartments” in the Opinions Clause, so the Framers perhaps contemplated the existence of some type of agency. Id. art. II, § 2, cl. 1. However, there is no substantive discussion of the form or structure such institutions should take. ↑

  4.  Edward H. Stiglitz, Delegating for Trust, 166 U. Pa. L. Rev. 633, 635 (2018) (“The administrative state is an awkward creature in our constitutional system—in the eyes of many, an unseemly chimera . . . .”). ↑

  5.  Administrative Procedure Act, 5 U.S.C. §§ 553–554. Some administrative action falls under the Take Care Clause. U.S. Const. art. II, § 3. The constitutional derivation of the independent agency and “mixed” agencies, which perform both rulemaking and adjudication, is more complicated. See Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935) (holding that the President has limited removal power over agency officials acting in a “quasi-legislative and quasi-judicial” capacity). ↑

  6.  “Administrative state” comprises the group of political institutions in government not located in Congress or the Executive Office that therefore have some insulation from these branches. This being said, as Datla and Revesz show, the level of agency independence from the branches is a matter of degree and not a binary variable. Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 772–73 (2013). “The administrative state” is commonly used to describe the post-New Deal conglomeration of independent and executive agencies and has its origin in nineteenth-century French and German writings on administration (“1’état administratif” and “die verwaltungsstaat,” respectively). Mark Rutgers, Beyond Woodrow Wilson: The Identity of the Study of Public Administration in Historical Perspective, 29 Admin. & Soc’y 276, 285–90 (1997); see also Dwight Waldo, The Administrative State (1948) (popularizing the term “the administrative state” to American audiences). ↑

  7.  For examples, see infra note 18. ↑

  8.  Cynthia R. Farina et al., Rulemaking in 140 Characters or Less: Social Networking and Public Participation in Rulemaking, 31 Pace L. Rev. 382, 385 (2011) [hereinafter Farina et al., Rulemaking in 140 Characters]. ↑

  9.  John M. de Figueiredo & Edward H. Stiglitz, Democratic Rulemaking, in 3 The Oxford Handbook of Law and Economics 38 (Francesco Parisi ed., 2017). ↑

  10.  Regulatory Information Database, U.S. Gen. Servs. Admin., https://www.reginfo.gov [https://perma.cc/7VVD-2U6Z] (last visited Mar. 12, 2023). ↑

  11.  Bernardo Zacka, When the State Meets the Street 9 (2017). ↑

  12.  K. Sabeel Rahman, Democracy Against Domination 144 (2016) (“[A]gencies are, in practice, the primary sites of policymaking, giving specificity and concreteness to broad legislative directives.”). ↑

  13.  Normative legitimacy is also called “moral legitimacy.” Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1794–802 (2005). ↑

  14.  Descriptive legitimacy is also called “sociological legitimacy.” ↑

  15.  Id. ↑

  16.  This definition is derived from John Rawls. John Rawls, Political Liberalism 224–26 (expanded ed. 2005) [hereinafter Rawls, Political Liberalism]. ↑

  17.  See infra Part II. ↑

  18.  See, e.g., Philip Hamburger, Is Administrative Law Unlawful? 355 (2014) (“[C]an the Secretary of the Department of Agriculture legislate? He is not a representative body, let alone the constitutionally established representative body. So how can he be assumed to legislate with consent of the people? And if without their consent . . . how can his commands have any legal obligation?”); R. Shep Melnick, The Transformation of Title IX 251 (2018) (criticizing court-agency “leapfrogging” that incrementally increases agencies’ authority without requiring them to accumulate evidence, experience, or public input); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1231 (1994) (arguing that the post-New Deal administrative state is unconstitutional); see also Gillian E. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 8–33 (2017) (discussing the recent attacks on the administrative state). ↑

  19.  See, e.g., Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring) (stating that the major questions and nondelegation doctrines prevent “government by bureaucracy supplanting government by the people” (quoting Antonin Scalia, A Note on the Benzene Case, 4 Regulation 25, 27 (July/Aug. 1980))); Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 91 (2015) (Thomas, J., concurring) (referring to “an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure”); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 108 (2015) (Alito, J., concurring in part) (describing a U.S. Court of Appeals for the D.C. Circuit procedural innovation as “prompted by an understandable concern about the aggrandizement of the power of administrative agencies”); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010) (“The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.”). ↑

  20.  140 S. Ct. 2183, 2207 (2020). ↑

  21.  Id. at 2200. ↑

  22.  See supra note 19. ↑

  23.  See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1758–66 (2007) (discussing shifts in administrative law doctrine as courts have shifted their operating theories of administrative legitimacy over the twentieth century). ↑

  24.  See Ronald M. Levin, Rulemaking and the Guidance Exemption, 70 Admin. L. Rev. 263, 268 (2018) (“[C]ourts have not developed a coherent theory as to what an interpretive rule is.”); Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 Duke L.J. 1051, 1065–66 (1995) (“[T]he arbitrary and capricious standard is relatively open-ended, and the Supreme Court has not given it more precise content.”); Louis J. Virelli III, Deconstructing Arbitrary and Capricious Review, 92 N.C. L. Rev. 721, 750, 751 n.116 (2014) (noting “the apparent difficulty experienced by the Court in articulating a consistent, coherent framework for explaining its reasoning” during hard look review). ↑

  25.  See infra Subsection IV.A.2.ii (discussing persistent circuit splits and courts failing to provide a rule in cases regarding whether agencies correctly utilized APA exceptions to notice-and-comment). ↑

  26.  See Metzger, supra note 18, at 7 (arguing that the administrative state promotes good government and constrains executive power); Adrian Vermeule, Bureaucracy and Distrust: Landis, Jaffe, and Kagan on the Administrative State, 130 Harv. L. Rev. 2463, 2487–88 (2017) (endorsing a “pluralist” approach to legitimizing the administrative state and criticizing various “independence” theories); Cass R. Sunstein & Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 Sup. Ct. Rev. 41, 44 (claiming that the administrative state provides benefits like government efficiency, coordinated policymaking, and energetic execution of the laws). ↑

  27.  See Blake Emerson, Liberty and Democracy Through the Administrative State: A Critique of the Roberts Court’s Political Theory, 73 Hastings L.J. 371, 375 (2022) [hereinafter Emerson, Liberty and Democracy Through the Administrative State] (“The Court’s most vocal defenders of the administrative state, Justice Kagan and Justice Breyer, tend to wave away the conservatives’ high-altitude critique of the regulatory state.”); see also Vermeule, supra note 26, at 2463 (focusing on the descriptive legitimacy of the administrative state); Cass R. Sunstein & Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State 3 n.5 (2020) (focusing on the legal legitimacy of the administrative state). But see Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 165–75 (2019) [hereinafter Emerson, The Public’s Law] (arguing for a democratization of agency policymaking partly on legitimacy grounds). ↑

  28.  See Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev. 265, 271–72 (2019) (forgoing federal administrative legitimacy and looking to state administrative institutions for legitimacy); Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 Chi.-Kent L. Rev. 987, 989 (1997) (arguing there is no unified theory of democratic legitimation of the administrative state); Mark Seidenfeld, The Quixotic Quest for a “Unified” Theory of the Administrative State, in Issues in Legal Scholarship, 2005, at 15 (same); Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276, 1381 (1984) (same). ↑

  29.  Camilla Stivers, Governance in Dark Times: Practical Philosophy for Public Service 10–11 (2008). ↑

  30.  See Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L.J. 804, 811 (2014) (arguing that administrative law has been dominated by concerns about democratic control of agencies by Congress or the President); Peter L. Strauss, Legislation That Isn’t—Attending to Rulemaking’s “Democracy Deficit”, 98 Calif. L. Rev. 1351, 1357 (2010) (arguing that agency discretion is legitimated by judicial review). ↑

  31.  See infra Section II.E. ↑

  32.  Richard Stewart’s interest representation and Mark Seidenfeld’s civic republicanism are two notable exceptions. See infra Section II.D (critiquing civic republicanism); see infra Subsection III.A.1 (critiquing interest group representation). More recently, a few scholars, such as Blake Emerson, Sabeel Rahman, and Dan Walters, have also focused their analysis on agency structure and process. See infra Section III.D (discussing these recent theories). ↑

  33.  See Anya Bernstein & Cristina Rodríguez, The Accountable Bureaucrat, 132 Yale L.J. 1600, 1607–09 (2023); Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, 36 Yale J. on Regul. 165, 191–200 (2019). ↑

  34.  See infra Section III.C. ↑

  35.  See infra Subsection III.C.3. ↑

  36.  See infra Part IV. ↑

  37.  See infra Subsection IV.A.1. ↑

  38.  See infra Subsection IV.A.2. ↑

  39.  See infra Subsection IV.B.1. ↑

  40.  See infra Subsection IV.B.1. ↑

  41.  See infra Subsections IV.B.2, IV.B.3. ↑

  42.  See infra Section I.B. ↑

Parties or Not?: The Status of Absent Class Members in Rule 23 Class Actions

When should absent class members—individuals who are bound by and share in a class recovery but who are not active participants in the litigation—be treated as “parties” in Rule 23 class actions? This simple question has confused courts and litigants almost since the initial conception of the class action device. In 1983, then-Professor Diane Wood introduced the joinder and representational models to classify approaches to this question in her now-seminal article. The joinder model treats absent class members as parties to the litigation at all times, while the representational model presumes only the named plaintiffs are parties to the case itself. At various moments, the Supreme Court has expressed exclusive support for the representational approach, exclusive support for the joinder approach, and a preference for a balanced approach which treats absent class members as parties for some procedural issues if not for others. Through the lens of the joinder and representational models, this Note clarifies the decisions courts are making when assessing the procedural rights of absent class members, and ultimately suggests that the status of absent class members should depend on the procedural right being asserted.

Introduction

When a lawsuit proceeds as a class action, how should we think about the “absent” members of the class—people who might share in the relief that the court awards, and who are also at risk of being bound by an adverse judgment, but who are not named and are not actively participating in the suit? In a classic 1983 article, then-Professor (now Judge) Diane Wood argued that courts had unknowingly been using two different approaches, which she called the “joinder” model and the “representational” model.1 1.Diane Wood Hutchinson, Class Actions: Joinder or Representational Device?, 1983 Sup. Ct. Rev. 459, 459. Judge Wood now serves as a senior judge on the U.S. Court of Appeals for the Seventh Circuit.Show More Broadly, the joinder model treats all members of the class as full parties to the litigation, whether or not they are named and actively participating.2 2.Id.Show More On that view, the court would need to consider the absent members of the class when answering threshold questions about jurisdiction or venue, and the absent members of the class would also have all the rights and obligations of parties as the case proceeds.3 3.Id.Show More By contrast, the representational model treats only the named members of the class as parties to the litigation for procedural purposes; the named members are considered to be representing absent class members throughout the litigation, but the absent class members whom they represent are not actually parties to the case.4 4.Id.at 460.Show More

For a simplified example of the distinction, imagine a plaintiff class action in which the named plaintiffs are all citizens of State A, but some of the absent class members are citizens of State B. If the defendant is a citizen of State B, then whether the suit qualifies for diversity jurisdiction under 28 U.S.C. § 1332(a) depends on whether the absent class members are regarded as additional plaintiffs. The joinder model would deny diversity jurisdiction in this case because some of the plaintiffs are citizens of the same state as the defendant, while the representational model would grant diversity jurisdiction (assuming that the amount in controversy requirement is satisfied) because the representational model is only concerned with the named parties.

The models can produce equally stark differences on questions that might arise as the suit proceeds. For example, in a major consumer protection lawsuit against the at-home exercise company Peloton, the joinder model would permit the district court to allow all forms of discovery against its, at the time, estimated 3.1 million subscribers to the platform,5 5.Lauren Thomas, Peloton Thinks It Can Grow to 100 Million Subscribers. Here’s How, CNBC (Sept. 15, 2020, 2:29 PM), https://www.cnbc.com/2020/09/15/peloton-thinks-it-can-grow-to-100-million-subscribers-heres-how.html [https://perma.cc/D2VF-3FZ4].Show More while the representational model would only permit interrogatories or requests for admission to be levied against the named class members.6 6.Cf. Fishon v. Peloton Interactive, Inc., 336 F.R.D. 67, 74 (S.D.N.Y. 2020) (permitting limited deposition of absent putative class members). Some discovery devices, such as requests for admissions and interrogatories, can only be directed at parties to the lawsuit. See, e.g., Fed. R. Civ. P. 33 (interrogatories); Fed. R. Civ. P. 36 (requests for admissions). Parties can aim other discovery mechanisms, such as depositions or subpoenas at parties and non-parties alike. See, e.g., Fed. R. Civ. P. 30 (oral depositions); Fed. R. Civ. P. 45 (subpoenas).Show More Or, the joinder model would require all absent class members to consent to adjudication by a magistrate rather than a district court judge, while the representational model would only require the named plaintiffs to consent.7 7.See, e.g., Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 180–81 (3d Cir. 2012) (holding that unnamed class members are not parties for purposes of consenting to adjudication by a magistrate judge).Show More These different treatments for absent class members can have major practical impacts on class action litigation in whether suits can be brought in federal court and, when they are, what absent class members are required to do.

Judge Wood herself advocated for using the representational model. In her view, applying that model across the board would best promote two goals of class actions: to provide efficiency for litigants and to act as a “private attorney-general” enforcement mechanism.8 8.Wood Hutchinson, supranote 1, at 480.Show More Since the publication of her article, however, the Supreme Court has struck different notes.9 9.Even before Judge Wood’s article, Justice Stevens’s concurring opinion in Deposit Guaranty National Bank v. Roper noted that “[t]he status of unnamed members of an uncertified class has always been difficult to define accurately.” 445 U.S. 326, 343 n.3 (1980) (Stevens, J., concurring). In Roper, Justice Stevens suggested that absent parties be conceived of as parties for some procedural purposes even if they are not for others. Id. Justice Powell’s dissent strongly disagreed with this statement, arguing that Justice Stevens cited no authority to support his position and provided no explanation “as to how a court is to determine when these unidentified ‘parties’ are present.” Id.at 358 n.21 (Powell, J., dissenting). This Note attempts to propose a solution to Justice Powell’s concern.Show More For example, in Martin v. Wilks, the Supreme Court presumed the representational model applied, labeling the class action as a “certain limited circumstance[]” where “a person, although not a party, has his interests adequately represented by someone with the same interests who is a party.”10 10.490 U.S. 755, 762 n.2 (1989); see also Taylor v. Sturgell, 553 U.S. 880, 894 (2008) (agreeing with this characterization of class actions).Show More By contrast, Justice Scalia’s plurality opinion in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co. described the class action as a straightforward “joinder” device that “merely enables a federal court to adjudicate claims of multiple parties at once, instead of in separate suits.”11 11.559 U.S. 393, 408 (2010) (plurality opinion).Show More And, in 2002, Justice O’Connor’s majority opinion in Devlin v. Scardelletti asserted that “[n]onnamed class members . . . may be parties for some purposes and not for others.”12 12.536 U.S. 1, 9–10 (2002). One might find it curious that Justice Scalia wrote the dissent in Devlin arguing for a representational approach as he would later write the majority opinion in Shady Grove, which called a class action a species of “traditional joinder.” Shady Grove, 559 U.S. at 408. In dissent, he wrote that the majority’s decision to permit both the joinder and the representational model “abandons the bright-line rule that only those persons named as such are parties to a judgment, in favor of a vague inquiry ‘based on context.’” Devlin, 536 U.S. at 20 (Scalia, J., dissenting).Show More

How courts should characterize absent class members bears on many continuing controversies. For example, after the Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California,13 13.137 S. Ct. 1773 (2017).Show More most lower courts have followed Devlin’s approach to confirm that, even if absent class members are parties for some purposes, they are not parties necessary to determine whether the court has personal jurisdiction over the defendant.14 14.See, e.g., Mussat v. IQVIA, Inc., 953 F.3d 441, 447–48 (7th Cir. 2020); Al Haj v. Pfizer Inc., 338 F. Supp. 3d 815, 820 (N.D. Ill. 2018). Not all courts have interpreted Bristol-Myers Squibb in this way. For more, see infra Subsection II.A.2.Show More As recently as June 2021, however, the Court seemed to follow Justice Scalia’s characterization of the class as a “joinder” device when it concluded that all absent class members need to demonstrate standing in order to recover damages.15 15.TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207–08 (2021). Notably, the Court reserved judgment on “whether every class member must demonstrate standing before a court certifies a class.” Id. at 2208 n.4. For further discussion on this question, and whether this actually implicates the representational model, see infraSubsection II.A.3.Show More It follows that under what circumstances absent class members should be considered parties remains a live issue almost forty years after Judge Wood’s initial article. The Court itself has not offered consistent guidance on the status of absent class members, and its recent decisions on personal jurisdiction and standing have acutely raised these questions for lower courts.16 16.SeeinfraSubsection II.A.2 (personal jurisdiction); infra Subsection II.A.3 (standing).Show More The time is right to both clarify the choice lower courts will be making in these determinations and to suggest a new path forward considering the changes from the past forty years.

This Note identifies the contours of the question for various procedural doctrines, and, ultimately, suggests that Devlin’s approach of considering absent class members as parties for some purposes but not for others is preferable to a strict joinder or representational approach. Judge Wood’s article, which advocated for a more rule-like approach to the representational model, focused primarily on the jurisdiction and justiciability doctrines that govern absent class members’ access to federal courts.17 17.See Wood Hutchinson, supra note 1, at 478 (“The characteristics that would lead a court to treat a class action as a glorified joinder device or as a true representational action are different. Those characteristics are ‘procedural’ in this sense: They establish one’s right to sue in a federal court on the substantive claim, rather than in a state court.”).Show More When broadening the scope of procedural doctrines that affect absent class members during litigation, such as discovery or counterclaims, this Note contends that a more balanced approach would better vindicate the efficiency and private attorney general functions of the class action device. Writing now with the benefit of Devlin’s statement that absent class members may be treated differently for different purposes, a less rule-like approach is not only preferable but possible.

Part I of this Note explains in detail the differences between the representational and joinder models and Judge Wood’s reasons for expressing a preference for the representational model. Part II surveys post-1983 doctrine in certain procedural issues implicating the joinder and representational models in class actions. While, for the most part, courts have continued to use the representational model to conceive of absent class members, there are some areas in which Congress and the courts have shifted towards a more joinder-based approach. Part III evaluates why Devlin’s approach of treating absent class members differently based on context is preferable to following the representational model in all areas. Ultimately, it suggests that the joinder model is valuable for some litigation conduct but that the representational model continues to be a valuable way to conceive of access to federal courts for class action procedures.

  1.  Diane Wood Hutchinson, Class Actions: Joinder or Representational Device?, 1983
    S

    up

    . C

    t

    . R

    ev

    .

    459, 459. Judge Wood now serves as a senior judge on the U.S. Court of Appeals for the Seventh Circuit. ↑

  2.  Id. ↑
  3.  Id. ↑
  4.  Id. at 460. ↑
  5.  Lauren Thomas, Peloton Thinks It Can Grow to 100 Million Subscribers. Here’s How, CNBC (Sept. 15, 2020, 2:29 PM), https://www.cnbc.com/2020/09/15/peloton-thinks-it-can-grow-to-100-million-subscribers-heres-how.html [https://perma.cc/D2VF-3FZ4]. ↑
  6.  Cf. Fishon v. Peloton Interactive, Inc., 336 F.R.D. 67, 74 (S.D.N.Y. 2020) (permitting limited deposition of absent putative class members). Some discovery devices, such as requests for admissions and interrogatories, can only be directed at parties to the lawsuit. See, e.g.,
    F

    ed

    . R. C

    iv

    . P.

    33 (interrogatories);

    F

    ed

    . R. C

    iv

    . P.

    36 (requests for admissions). Parties can aim other discovery mechanisms, such as depositions or subpoenas at parties and non-parties alike. See, e.g.,

    F

    ed

    . R. C

    iv

    . P.

    30 (oral depositions);

    F

    ed

    . R. C

    iv

    . P.

    45 (subpoenas). ↑

  7.  See, e.g., Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 180–81 (3d Cir. 2012) (holding that unnamed class members are not parties for purposes of consenting to adjudication by a magistrate judge). ↑
  8.  Wood Hutchinson, supra note 1, at 480. ↑
  9.  Even before Judge Wood’s article, Justice Stevens’s concurring opinion in Deposit Guaranty National Bank v. Roper noted that “[t]he status of unnamed members of an uncertified class has always been difficult to define accurately.” 445 U.S. 326, 343 n.3 (1980) (Stevens, J., concurring). In Roper, Justice Stevens suggested that absent parties be conceived of as parties for some procedural purposes even if they are not for others. Id. Justice Powell’s dissent strongly disagreed with this statement, arguing that Justice Stevens cited no authority to support his position and provided no explanation “as to how a court is to determine when these unidentified ‘parties’ are present.” Id. at 358 n.21 (Powell, J., dissenting). This Note attempts to propose a solution to Justice Powell’s concern. ↑
  10.  490 U.S. 755, 762 n.2 (1989); see also Taylor v. Sturgell, 553 U.S. 880, 894 (2008) (agreeing with this characterization of class actions). ↑
  11.  559 U.S. 393, 408 (2010) (plurality opinion). ↑
  12.  536 U.S. 1, 9–10 (2002). One might find it curious that Justice Scalia wrote the dissent in Devlin arguing for a representational approach as he would later write the majority opinion in Shady Grove, which called a class action a species of “traditional joinder.” Shady Grove, 559 U.S. at 408. In dissent, he wrote that the majority’s decision to permit both the joinder and the representational model “abandons the bright-line rule that only those persons named as such are parties to a judgment, in favor of a vague inquiry ‘based on context.’” Devlin, 536 U.S. at 20 (Scalia, J., dissenting). ↑
  13.  137 S. Ct. 1773 (2017). ↑
  14.  See, e.g., Mussat v. IQVIA, Inc., 953 F.3d 441, 447–48 (7th Cir. 2020); Al Haj v. Pfizer Inc., 338 F. Supp. 3d 815, 820 (N.D. Ill. 2018). Not all courts have interpreted Bristol-Myers Squibb in this way. For more, see infra Subsection II.A.2. ↑
  15.  TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207–08 (2021). Notably, the Court reserved judgment on “whether every class member must demonstrate standing before a court certifies a class.” Id. at 2208 n.4. For further discussion on this question, and whether this actually implicates the representational model, see infra Subsection II.A.3. ↑
  16.  See infra Subsection II.A.2 (personal jurisdiction); infra Subsection II.A.3 (standing). ↑

  17.  See Wood Hutchinson, supra note 1, at 478 (“The characteristics that would lead a court to treat a class action as a glorified joinder device or as a true representational action are different. Those characteristics are ‘procedural’ in this sense: They establish one’s right to sue in a federal court on the substantive claim, rather than in a state court.”). ↑

©Virginia Law Review Association. All rights reserved.