Issue 3

Separation of Structures

In a series of decisions—Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law v. Consumer Financial Protection Bureau, and Collins v. Yellen—the Supreme Court struck down for-cause removal restrictions over agency heads. These rulings fault structural elements of the respective agency—double-layer protections or single directorships—for violating separation of powers because they insulate the agency from presidential review and oversight. But while the Court increasingly relies on agency structures to adjudicate constitutionality, separation of powers scholarship has focused on the division of powers into legislative, executive, and judicial functions.

This Article supplies the missing account of separation of structures, and in the process defends the legitimacy of the administrative state against its critics. It argues that an emphasis on an agency’s institutional structure in adjudicating constitutionality is deeply rooted in constitutional design and the Founders’ reception of ancient Greek and Roman political philosophy. By introducing the link between institutional design and the Constitution, separation of structures sketches a doctrinal terrain of how judicial adjudications of agency structure could proceed beyond the formalist approach latent in the Court’s recent decisions. By shifting the doctrinal focus from the nature of political functions to the design of accountability mechanisms in governance structures, this Article provides strong support for the constitutionality of congressional delegation of legislative powers to agencies. This more capacious understanding of structural separation of powers accords with constitutional design and better accommodates the dynamic needs of modern regulation.

Introduction

Modern separation of powers doctrine is in disarray. While the Supreme Court routinely decides questions of interbranch conflict, agency structure, and delegation,1 1.E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952); Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); Stern v. Marshall, 564 U.S. 462, 469 (2011); Gundy v. United States, 139 S. Ct. 2116, 2129 (2019).Show More both its approaches and the cases’ outcomes feature sharp disagreement and immense unpredictability. Much of the contemporary jurisprudence on the President’s power to remove agency officials, for example, derives from two contrasting precedents. In Myers v. United States, the Court held that the Decision of 1789 gave the President constitutional entitlement to remove executive branch officials for any reason.2 2.272 U.S. 52, 119 (1926).Show More A mere nine years later, in Humphrey’s Executor v. United States, the Court empowered Congress to specify for-cause removal conditions for independent agencies with quasi-legislative and quasi-judicial functions.3 3.Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935); see also Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal, 52 U. Rich. L. Rev. 691, 699–701 (2018) (recounting Justice Sutherland’s attempts to distinguish Humphrey’s Executor from Myers based on the term of years established in the FTC’s organic statute and the quasi-legislative, quasi-judicial character of the FTC).Show More Today’s debate tracks this disagreement: after Morrison v. Olson articulated an open-textured inquiry of whether removal restrictions impede the President’s ability to execute his Take Care duties, the Court reversed course by adopting, in Free Enterprise Fund v. Public Company Accounting Oversight Board (“PCAOB”), a bright-line rule that dual-layered for-cause restrictions are unconstitutional.4 4.Morrison v. Olson, 487 U.S. 654, 691–92 (1988); Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); see Jack Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1841–43 (2016).Show More Such incongruity extends to other spheres of doctrinal engagement. With respect to congressional grants of adjudicative authority to non-Article III tribunals, the Court has applied a pragmatic test and concluded that an agency’s jurisdiction over common law counterclaims is constitutional; the Court has also taken a more formalist approach and held that such jurisdiction contravenes separation of powers.5 5.Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 851–52 (1986); Stern, 564 U.S. at 482–83; see William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1519–21 (2020) (reconciling non-Article-III adjudication with functional separation of powers); infra Figure 2.Show More When determining which officials are “inferior Officers” for the purposes of the Appointments Clause, the Court has characterized an independent counsel—not subordinate to any executive branch officers—as an inferior officer, while defining, a decade later, inferior officers as those supervised by principal officers.6 6.Morrison, 487 U.S. at 671; Edmond v. United States, 520 U.S. 651, 663 (1997); see United States v. Arthrex, Inc., 141 S. Ct. 1970, 1985–86 (2021).Show More The latest victims of this doctrinal quagmire are the Consumer Financial Protection Bureau (“CFPB”) and the Federal Housing Finance Agency (“FHFA”): the Court—splintered along ideological lines—invalidated for-cause removal restrictions on those agencies’ directors.7 7.Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); Collins v. Yellen, 141 S. Ct. 1761, 1787 (2021).Show More

Underpinning these doctrinal puzzles are patterns that only muddy the waters. The Court has announced, with some consistency, the purpose of its separation of powers doctrine: to erect “structural protections against abuse of power [that are] critical to preserving liberty.”8 8.Seila Law, 140 S. Ct. at 2202 (quoting Bowsher v. Synar, 478 U.S. 714, 730 (1986)).Show More But precisely how (or why) policing the confines of government bodies’ distinct powers contributes to individual freedom is unclear,9 9.Daryl J. Levinson, The Supreme Court 2015 Term—Foreword: Looking for Power in Public Law, 130 Harv L. Rev. 31, 37 (2016).Show More and the mechanisms of effectuating that goal are unpredictable. The Court has considered a combination of three factors: function, power, and design. It has asked whether the function, or the type of authority, exercised by the government body is of the kind constitutionally assigned to it by its Vesting Clause: for example, whether the Commodities Futures Trading Commission’s jurisdiction over common law claims represents an exercise of the judicial function.10 10.Schor, 478 U.S. at 851.Show More It has asked whether the magnitude of one actor’s authority impedes the ability of another to fulfill its constitutional responsibilities: for example, whether the CFPB has “potent enforcement powers” and “extensive adjudicatory authority.”11 11.Seila Law, 140 S. Ct. at 2193.Show More It has also considered issues of institutional design: for example, whether congressionally mandated for-cause removal conditions create a double layer of protection for executive personnel.12 12.Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); see also Lisa Shultz Bressman, What Seila Law Says About Chief Justice Roberts’ View of the Administrative State, U. Chi. L. Rev. Online (Aug. 27, 2020), https://lawreviewblog.uchicago.edu/2020/08/27/seila-bress‌man [https://perma.cc/97HT-CNRH] (arguing that Seila Law changes existing jurisprudence by “let[ting] the structure of the agency determine the degree of presidential control over its principal officers”).Show More But precisely which factor the Court will emphasize (and the interaction among them) remains a puzzle. In particular, it is unclear whether considerations of design constitute an independent analysis or are merely parasitic upon issues of power and function. For these reasons, scholars have characterized separation of powers doctrine as a “hoary non sequitur”13 13.Stephen L. Carter, The Independent Counsel Mess, 102 Harv. L. Rev. 105, 105 (1988).Show More and criticized it for its “[l]ack of progress.”14 14.M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va. L. Rev. 1127, 1129 (2000); see also Jerry L. Mashaw, Of Angels, Pins, and For-Cause Removal: A Requiem for the Passive Virtues, U. Chi. L. Rev. Online (Aug. 27, 2020), https://lawreview‌blog.uchicago.edu/2020/08/27/seila-mashaw [https://perma.cc/BMT9-NK6C] (characterizing the doctrine on for-cause removal as a “jurisprudential train wreck”).Show More

Academic commentary has not successfully explained the doctrinal variation.15 15.See infra Part I.Show More Scholars have developed complex models to ground the Court’s separation of powers jurisprudence. But those models only underscore disagreement over the fundamental building blocks of their theories. Relying on the Vesting Clauses, scholars have argued that the three constitutional branches of government are each assigned distinct functions.16 16.See infra notes 32–36 and accompanying text.Show More These separation models, however, suffer from inconsistency with contemporary practice, not the least from the rise of the powerful administrative state.17 17.See infra notes 40–48 and accompanying text. Strict separation-model theorists question the legitimacy of the modern administrative state, prominently by appeals to the nondelegation doctrine. E.g., Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 332 (2002) (arguing that the “civics-book model of legislators legislating, executives executing, and judges judging has enormous intuitive—and legitimating—power,” which explains the modern obsession with the nondelegation doctrine despite its disuse); Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1493–94 (2021) (arguing there is significant evidence the Founding generation adhered to a robust nondelegation doctrine that was keenly faithful to traditional separation of powers); see also infra Subsection IV.B.3.Show More Other scholars have committed to a more fluid balance among the branches and proposed judicial intervention as a means to restore accountability and good governance.18 18.See infra notes 49–55 and accompanying text.Show More But these balance models offer little doctrinal determinacy and threaten nonjusticiability.19 19.See infra notes 56–57 and accompanying text.Show More Most attempts to combine the two main approaches are limited to specialized arenas and have not generated consensus.20 20.See infra Section I.C.Show More The most recent scholarly strands have suggested exogenous approaches that abandon existing doctrinal molds altogether.21 21.See infra notes 73–78.Show More

This Article argues that, in contemporary discourse about separation of powers, an important piece of the puzzle is missing. The Article articulates a theory of separation of structures, which in its simplest version posits that political authority should depend not only on the power being exercised but also on the institutional structure of the government entity that exercises the power. Previous theories—separation and balance models alike—have focused exclusively on the nature or the magnitude of the contested functions: for example, whether an agency in the executive branch has performed actions that are adjudicative in nature (and therefore encroached on the judiciary), or whether Congress has assigned to itself so extensive an authority as to disrupt the distribution of powers among the constitutional branches.22 22.See infra Sections I.A–B.Show More But an account of separation of powers is incomplete without considering the structural design of the entity performing the contested functions: for example, whether an agency’s unitary structure concentrates power and heightens the need for accountability, or whether a multimember body facilitates deliberation and expertise necessary for technical decision-making. The case law of the past decade has unmistakably established the relevance of institutional design.23 23.E.g., Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191–92 (2020); Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); Collins v. Yellen, 141 S. Ct. 1761, 1770–71 (2021).Show More This Article supplies this missing account of institutional structure in separation of powers.

Importantly, separation of structures originated in ancient Greek and Roman political theory, indelibly shaped the Founding generation’s understanding, and formed an integral part of the constitutional design. Separation of powers—the structural and the functional strands—finds its genesis in Aristotle’s typology of regimes, which divides constitutions into six types based on the numerosity of the governing class and constitution’s compliance with (or deviation from) the normative ends of government.24 24.See infra Section II.A.Show More Polybius, a second-century Greek historian, transforms this typology into a theory of mixed government.25 25.See infra Section II.B.Show More None of the basic Aristotelian constitutional forms (monarchy, aristocracy, and democracy), individually considered, instantiates desirable political design. The perfect constitution incorporates each regime type. Separation of structures remained highly influential in the early-modern period: Montesquieu subscribed to a version of the model,26 26.See infra Section II.D.Show More and the English political theorists adapted it to justify the constitutional setup of England.27 27.See infra Section II.C.Show More The Founding generation, well-versed in classical philosophy and ancient history, saw separation of structures and mixed government as background assumptions of any successful constitutional design.28 28.See infra Part III.Show More Although the Founders ultimately abandoned the British (what I call the sociological) notion of mixed government, the structural provisions of the Constitution, with its institution of representation, evinced a return to Aristotelian separation of structures. The absence of separation of structures in contemporary discussion accounts in part for the doctrinal disarray and the scholarly disagreement.29 29.Most scholars give only cursory treatment to the Aristotelian origins of separation of powers. See, e.g., Steven G. Calabresi, Mark E. Berghausen & Skylar Albertson, The Rise and Fall of the Separation of Powers, 106 Nw. U. L. Rev. 527, 529–36 (2012). Serious assessments of classical political philosophy’s contribution to modern jurisprudence are outdated and cannot account for the dramatic rise of the administrative state. See John A. Fairlie, The Separation of Powers, 21 Mich. L. Rev. 393, 393–94 (1923); Arthur S. Miller, Separation of Powers: An Ancient Doctrine Under Modern Challenge, 28 Admin. L. Rev. 299, 300 (1976); Malcolm P. Sharp, The Classical American Doctrine of the “Separation of Powers,” 2 U. Chi. L. Rev. 385, 386–87 (1935) (identifying Aristotle’s Politics as containing the “original statement of the doctrine” of mixed regimes “closely related in classic American political writing to the separation of powers”). While Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 152–53 (1998) rejects the mixed-regime view of separation of powers, John Hart Ely, The Apparent Inevitability of Mixed Government, 16 Const. Comment. 283, 292 (1999) acknowledges its inevitability. Part III argues that while Wood rightly points out the demise of the British theory, the Founders’ rejection of the sociological version of mixed government in fact signaled a return to the basic Aristotelian model.Show More

This Article makes three main contributions. First, it fleshes out the theory of separation of structures as distinct from contemporary scholarly approaches. Second, it writes the intellectual history of separation of structures, which has been an integral part of the separation of powers enterprise since its inception, including at the Founding. Third, it explores the scholarly and doctrinal implications of structural separation of powers. In particular, adjudicating the constitutionality of agency structures requires methodological pluralism that incorporates the normative values underlying the structural design. That is, under separation of structures, current doctrine should evolve beyond the formalism heavily criticized by scholars. This structural framework thus provides a limiting principle to the doctrine of Free Enterprise Fund, Seila Law, and Collins v. Yellen. Further, congressional delegation to agencies cannot be conceptualized as a violation of separation of powers on the sole ground that delegation allows executive branch agencies to exercise legislative power. Instead, advocates of a muscular nondelegation doctrine often fail to recognize that agency structure can mitigate potential violations of functional separation of powers. Both implications are urgent in today’s doctrinal milieu. Not only does the Court continue to entrench its agency-structure jurisprudence—it appears poised to extend the nondelegation doctrine.30 30.See infra Subsection IV.B.3.Show More

The remainder of the Article proceeds as follows. Part I situates separation of structures within the existing scholarly models. Part II turns to the classical and early-modern origins of separation of structures. Part III examines the adoption of separation of structures as part of Founding-era constitutional design. Part IV discusses doctrinal and scholarly implications.

  1.  E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952); Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); Stern v. Marshall, 564 U.S. 462, 469 (2011); Gundy v. United States, 139 S. Ct. 2116, 2129 (2019). ↑
  2.  272 U.S. 52, 119 (1926). ↑
  3.  Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935); see also Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal, 52 U. Rich. L. Rev. 691, 699–701 (2018) (recounting Justice Sutherland’s attempts to distinguish Humphrey’s Executor from Myers based on the term of years established in the FTC’s organic statute and the quasi-legislative, quasi-judicial character of the FTC). ↑
  4.  Morrison v. Olson, 487 U.S. 654, 691–92 (1988); Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); see Jack Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1841–43 (2016). ↑
  5.  Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 851–52 (1986); Stern, 564 U.S. at 482–83; see William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1519–21 (2020) (reconciling non-Article-III adjudication with functional separation of powers); infra Figure 2. ↑
  6.  Morrison, 487 U.S. at 671; Edmond v. United States, 520 U.S. 651, 663 (1997); see United States v. Arthrex, Inc., 141 S. Ct. 1970, 1985–86 (2021). ↑
  7.  Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); Collins v. Yellen, 141 S. Ct. 1761, 1787 (2021). ↑
  8.  Seila Law, 140 S. Ct. at 2202 (quoting Bowsher v. Synar, 478 U.S. 714, 730 (1986)). ↑
  9.  Daryl J. Levinson, The Supreme Court 2015 Term—Foreword: Looking for Power in Public Law, 130 Harv L. Rev. 31, 37 (2016). ↑
  10.  Schor, 478 U.S. at 851. ↑
  11.  Seila Law, 140 S. Ct. at 2193. ↑
  12.  Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); see also Lisa Shultz Bressman, What Seila Law Says About Chief Justice Roberts’ View of the Administrative State, U. Chi. L. Rev. Online (Aug. 27, 2020), https://lawreviewblog.uchicago.edu/2020/08/27/seila-bress‌man [https://perma.cc/97HT-CNRH] (arguing that Seila Law changes existing jurisprudence by “let[ting] the structure of the agency determine the degree of presidential control over its principal officers”). ↑
  13.  Stephen L. Carter, The Independent Counsel Mess, 102 Harv. L. Rev. 105, 105 (1988). ↑
  14.  M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va. L. Rev. 1127, 1129 (2000); see also Jerry L. Mashaw, Of Angels, Pins, and For-Cause Removal: A Requiem for the Passive Virtues, U. Chi. L. Rev. Online (Aug. 27, 2020), https://lawreview‌blog.uchicago.edu/2020/08/27/seila-mashaw [https://perma.cc/BMT9-NK6C] (characterizing the doctrine on for-cause removal as a “jurisprudential train wreck”). ↑
  15.  See infra Part I. ↑
  16.  See infra notes 32–36 and accompanying text. ↑
  17.  See infra notes 40–48 and accompanying text. Strict separation-model theorists question the legitimacy of the modern administrative state, prominently by appeals to the nondelegation doctrine. E.g., Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 332 (2002) (arguing that the “civics-book model of legislators legislating, executives executing, and judges judging has enormous intuitive—and legitimating—power,” which explains the modern obsession with the nondelegation doctrine despite its disuse); Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1493–94 (2021) (arguing there is significant evidence the Founding generation adhered to a robust nondelegation doctrine that was keenly faithful to traditional separation of powers); see also infra Subsection IV.B.3. ↑
  18.  See infra notes 49–55 and accompanying text. ↑
  19.  See infra notes 56–57 and accompanying text. ↑
  20.  See infra Section I.C. ↑
  21.  See infra notes 73–78. ↑
  22.  See infra Sections I.A–B. ↑
  23.  E.g., Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191–92 (2020); Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); Collins v. Yellen, 141 S. Ct. 1761, 1770–71 (2021). ↑
  24.  See infra Section II.A. ↑
  25.  See infra Section II.B. ↑
  26.  See infra Section II.D. ↑
  27.  See infra Section II.C. ↑
  28.  See infra Part III. ↑
  29.  Most scholars give only cursory treatment to the Aristotelian origins of separation of powers. See, e.g., Steven G. Calabresi, Mark E. Berghausen & Skylar Albertson, The Rise and Fall of the Separation of Powers, 106 Nw. U. L. Rev. 527, 529–36 (2012). Serious assessments of classical political philosophy’s contribution to modern jurisprudence are outdated and cannot account for the dramatic rise of the administrative state. See John A. Fairlie, The Separation of Powers, 21 Mich. L. Rev. 393, 393–94 (1923); Arthur S. Miller, Separation of Powers: An Ancient Doctrine Under Modern Challenge, 28 Admin. L. Rev. 299, 300 (1976); Malcolm P. Sharp, The Classical American Doctrine of the “Separation of Powers,” 2 U. Chi. L. Rev. 385, 386–87 (1935) (identifying Aristotle’s Politics as containing the “original statement of the doctrine” of mixed regimes “closely related in classic American political writing to the separation of powers”). While Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 152–53 (1998) rejects the mixed-regime view of separation of powers, John Hart Ely, The Apparent Inevitability of Mixed Government, 16 Const. Comment. 283, 292 (1999) acknowledges its inevitability. Part III argues that while Wood rightly points out the demise of the British theory, the Founders’ rejection of the sociological version of mixed government in fact signaled a return to the basic Aristotelian model. ↑

  30.  See infra Subsection IV.B.3. ↑

Constitutional Rights and Remedial Consistency

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.

This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial inconsistency can be transparent, translucent, or opaque given the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently inconsistent, for instance, because they apply differently to discrete rights on their faces. And indeterminate remedial standards (like the political question doctrine for justiciability and the “plan of the Convention” doctrine for state sovereign immunity) are opaquely inconsistent because discerning their variable character requires inductive analysis of actual applications.

After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional remedies—while recognizing that non-transsubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent inconsistency more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque inconsistency before relying on overdeterminative reasoning to reach otherwise established results. Among additional contributions, by providing innovative tools for centering remedial consistency as an important—but not absolute—aspect of constitutional law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political, thereby reinforcing its legitimacy at this time of widespread skepticism.

Introduction

What if the U.S. Supreme Court had decided Dobbs v. Jackson Women’s Health Organization1 1.142 S. Ct. 2228 (2022).Show More differently, such that Roe v. Wade2 2.410 U.S. 113 (1973).Show More (or some other set of abortion protections) remained the law of the land? It might not have mattered much in practice. For as those paying attention even before the Dobbs opinion leak will remember, Texas enacted a “heartbeat bill,” S.B. 8 (Senate Bill 8), prohibiting abortion at a point in pregnancy long before prevailing precedent allowed—and long before many people would have known they were pregnant.3 3.See Shannon Najmabadi, Gov. Greg Abbott Signs into Law One of Nation’s Strictest Abortion Measures, Banning Procedure as Early as Six Weeks into a Pregnancy, Tex. Trib. (May 19, 2021, 11:00 AM), https://www.texastribune.org/2021/05/18/texas-heartbeat-bill-ab‌ortions-law [https://perma.cc/MRV9-UFKW].Show More By confining the bill’s enforcement to civil suits with private plaintiffs, Texas circumvented the usual system that enables regulated parties to challenge a law’s constitutionality in federal court without running the risk of violating it.4 4.See Charlie Savage, What is Ex Parte Young, Much-Discussed in the Texas Abortion Case?, N.Y. Times (Nov. 1, 2021), https://www.nytimes.com/2021/11/01/us/politics/what-is-ex-parte.html [https://perma.cc/ZB9F-ELTX].Show More Separate and apart from Dobbs, that is, Texas avoided a crucial remedy for enforcing abortion rights and, in doing so, essentially eliminated abortion rights themselves. Other states soon followed suit.5 5.See Kate Zernike, Idaho Is First State to Pass Abortion Ban Based on Texas’ Law, N.Y. Times (Mar. 14, 2022), https://www.nytimes.com/2022/03/14/us/idaho-abortion-bill-texas.‌html [https://perma.cc/9U98-2CTA].Show More

The Supreme Court refused to reject this scheme first on the shadow docket (by declining to prevent S.B. 8 from taking effect)6 6.Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021).Show More and then after merits briefing and oral argument (by holding that challengers could not sue state court judges, state court clerks, the state attorney general, or a potential private plaintiff).7 7.Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 539 (2021).Show More The Court did permit the case to continue against a handful of Texas officials responsible for medical licensing.8 8.Id.Show More But in response to a certified question on remand, the Supreme Court of Texas interpreted state law as withholding enforcement authority from those officials, effectively ending the attack on S.B. 8 more than three months before Dobbs came down.9 9.See Whole Woman’s Health v. Jackson, 642 S.W.3d 569, 583 (Tex. 2022); see also Whole Woman’s Health v. Jackson, 31 F.4th 1004, 1006 (5th Cir. 2022) (instructing the district court to “dismiss all challenges to the private enforcement provisions of the statute”).Show More

Critics condemned the Supreme Court for allowing this remedial end-run around abortion rights.10 10.See, e.g., Strict Scrutiny, A Uterus, If You Can Keep It, Crooked Media, at 27:00 (Dec. 10, 2021), https://castbox.fm/episode/A-Uterus%2C-If-You-Can-Keep-It-id2173578-id4496‌96579? [https://perma.cc/LMQ9-WS9A] (podcast episode hosted by Professors Leah Litman, Melissa Murray, and Kate Shaw, with guest Professor Steve Vladeck).Show More One prominent theme became that the majority would have never tolerated the similar treatment of some preferred legal protection—say, gun rights. “Imagine a world in which the DOJ was challenging a CA law that was identical to TX #SB8 but swap abortion for guns,” Professor Amanda Hollis-Brusky posted on X, formerly Twitter.11 11.Amanda Hollis-Brusky (@HollisBrusky), X (Dec. 10, 2021, 11:00 AM), https://twitter.‌com/HollisBrusky/status/1469336195045814278?s=20 [https://perma.cc/NRH3-SCD3].Show More “Gun sales have stopped,” and “[g]un ownership is a de facto state crime despite 2nd A,” she continued, referencing the Second Amendment right to keep and bear arms.12 12.Id.Show More “Now ask yourself,” she said rhetorically: “[W]ould the conservative Justices have ruled differently?”13 13.Id.; see also, e.g., Jacob D. Charles, Are Gun Rights Safe After S.B. 8?, The Hill (Dec. 15, 2021, 9:31 AM), https://thehill.com/opinion/judiciary/585700-are-gun-rights-safe-after-sb8/ [https://perma.cc/LXW5-DPRB] (stating that “it would be hard to see the conservative justices reaching that same conclusion if gun rights were at stake”).Show More This refrain reemerged when California indeed enacted a copycat gun-control scheme14 14.E.g., Evan Bernick (@evanbernick), X (July 23, 2022, 11:50 PM), https://perma.cc/‌VAQ4-4MPW (“If SCOTUS does take [the California gun control law] up, I doubt it will be treated similarly. Which is part of why the prospect of this getting struck down is not going to deter conservatives from modeling other stuff on SB 8.”); see Cal. Code Civ. Proc. § 1021.11.Show More—which went into effect after a federal trial court held a tangential provision invalid.15 15.See S. Bay Rod & Gun Club, Inc. v. Bonta, 646 F. Supp. 3d 1232, 1235 (S.D. Cal. 2022); Miller v. Bonta, 646 F. Supp. 3d 1218, 1222 (S.D. Cal. 2022); see Jon Healey, Californians Have a Green Light to Sue the Gun Industry. How Will That Work?, L.A. Times (Jan. 1, 2023, 3:36 PM), https://www.latimes.com/california/story/2023-01-01/californians-will-soon-have‌-their-chance-to-sue-the-gun-industry [https://perma.cc/XT7P-6A7Q] (explaining that a federal district court “nixed . . . the ‘fee-shifting’ provision that would have saddled gun-industry litigants with all or part of the court costs from any suit challenging the state’s gun controls, even if they prevailed in court,” but that “[t]he rest of [the law] remains in effect, including the private right of action”).Show More

Stakeholders on the left are justified in feeling this anxiety. But they are not alone, for stakeholders on the right have repeatedly leveled a converse condemnation about the preceding era in judicial history. The majority in Dobbs itself contended that prior abortion jurisprudence “diluted the strict standard for facial constitutional challenges,” “ignored the Court’s third-party standing doctrine,” “disregarded standard res judicata principles,” “distorted First Amendment doctrines,” and “flouted” both “the ordinary rules on the severability of unconstitutional provisions” and “the rule that statutes should be read where possible to avoid unconstitutionality.”16 16.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2275–76 (2022).Show More

Comments like these arise from and attest to the idea that at the federal level, the United States has two Constitutions: what one could call the conservative Constitution and what one could call the liberal or progressive Constitution. The point is not only that different ideological groups interpret the Constitution using different methods and causing different effects. The point is also that different ideological groups value, invoke, and—in the case of judges—advance the law surrounding different constitutional provisions to the detriment or disregard of others. As Professor Zachary Price puts a similar point, while progressives “typically embrace a constitutional vision centered on advancing social justice, protecting sexual and reproductive autonomy, and enabling expert administrative governance,” conservatives “typically focus on protecting historic understandings of individual rights (including gun rights and religious freedom), leaving moral questions to the political process, and restoring a traditional view of separation of powers.”17 17.Zachary S. Price, Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post-Kennedy Supreme Court, 70 Hastings L.J. 1273, 1280 (2019).Show More

This phenomenon comes into stark relief with respect to individual rights—those provisions, largely located in the Bill of Rights and the Reconstruction Amendments, that constrain government action to preserve spheres of personal freedom. A 2016 survey, for example, found that while “41% of Americans” identified the First Amendment as “the most important” part of the Bill of Rights, “Republicans (27%)” were “much more likely than Democrats (6%) to say that the Second Amendment is the most important,” with Democrats putting the Fourth Amendment in second place.18 18.Peter Moore, First Amendment Is the Most Important, and Well Known, Amendment, YouGov (Apr. 12, 2016, 3:15 PM), https://today.yougov.com/topics/politics/articles-reports/‌2016/04/12/bill-rights [https://perma.cc/Q73Y-5FDM].Show More And while the Roberts Court has recently elevated Second Amendment protections to unprecedented heights,19 19.See generally Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67 (2023) (outlining the unique development of, and some challenges within, Second Amendment jurisprudence).Show More the Justices have not granted plenary review on a Fourth Amendment question for more than three years.20 20.See Joel S. Johnson, Supreme Court Cases of Interest, Crim. Just., Fall 2023, at 44, 44–45 (noting that “[t]he Court has not granted certiorari on a Fourth Amendment issue since 2020”).Show More

That different ideological groups favor and disfavor separate sets of constitutional provisions undoubtedly contributes to declining confidence in the Supreme Court.21 21.See Jodi Kantor & Jo Becker, Former Anti-Abortion Leader Alleges Another Supreme Court Breach, N.Y. Times (Nov. 19, 2022), https://www.nytimes.com/2022/11/19/us/supreme‌-court-leak-abortion-roe-wade.html [https://perma.cc/6VD6-GJF9] (“A majority of Americans are losing confidence in the institution, polls show, and its approval ratings are at a historic low. Critics charge that the court has become increasingly politicized, especially as a new conservative supermajority holds sway.”).Show More Knowing that members of the two major political parties and the predominant legal factions prefer discrete protections, it is not surprising that recent survey results indicate that when asked how well the Justices are “keeping their own political views out of how they decide major cases,” 53% of all respondents answered “only fair” or “poor,” while just 18% answered “excellent” or “good.”22 22.Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr. (Sept. 1, 2022), https://www.pewresearch.org/politics/2022/09/01/positive-views-of-sup‌reme-court-decline-sharply-following-abortion-ruling/ [https://perma.cc/MXM3-8TP7].Show More Nor is it surprising, given the Court’s changing composition, that Democrats expressed significantly more negative views, with 70% choosing “only fair” or “poor” and just 6% choosing “excellent” or “good.”23 23.Id.Show More Given these realities, one could reasonably feel pessimistic about how much could be done in the near future from a cross-ideological perspective to improve perceptions about the law of constitutional rights. A possible path to achieving a similar bridge-building objective, however, emerges with respect to how courts enforce such rights—with respect, that is, to the law of constitutional remedies.

This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. Underlying both sets of abortion-related criticisms above is the idea that certain facets of the law—and especially the law of constitutional remedies, understood “broadly” (for thematic purposes here, but not everywhere) as including “rules for implementing constitutional rights and preventing or punishing their violation”24 24.Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 861 (1999).Show More—should stay consistent across separate substantive areas. This idea, the remedial consistency paradigm, derives in part from the deeply rooted values of generality and neutrality in judicial decision-making. But the remedial consistency paradigm does not always control. With the Roberts Court repeatedly placing discrete rights guarantees on different remedial grounds, this topic deserves systematic scholarly scrutiny.

This Article advances in three parts. Part I explains how the remedial consistency paradigm arises from the concept of transsubstantivity, beginning by connecting the paradigm with generality and neutrality values and exploring transsubstantivity’s current salience. This Part then offers several conceptual observations—including that while discussions about transsubstantivity usually relate to doctrinal consistency across discrete legal issues, transsubstantivity can also relate to doctrinal consistency across discrete interests or facts; that transsubstantivity represents a matter of degree; and that transsubstantivity depends on the measure of evaluation. Finally, this Part discusses why transsubstantivity is especially important in the context of constitutional remedies as a species of process law and as a possible point of cross-ideological consensus. Critically, constitutional remedies are the focus of the analysis throughout. But before introducing that context, the explanatory sections rely on examples from other areas as well. The implication is not that considerations concerning transsubstantivity should look the same within and beyond constitutional remedies—just that one can gain a richer understanding of the concept without worrying about context-specific limitations.

Part II proposes a novel framework for understanding remedial inconsistency in constitutional adjudication. The framework provides a classification of different kinds of remedial inconsistency organized by the clarity of non-transsubstantivity, with concrete examples for each. Transparent inconsistency, which includes prophylactic and legislative remedial doctrines, refers to areas of law that treat discrete referents differently on their faces. Translucent inconsistency emerges through background knowledge about the legal landscape, including with respect to areas implicating fact-sensitive versus fact-insensitive claims and irregular interactions with external sources of law. Opaque inconsistency, which often surrounds doctrines involving indeterminate tests and comparator cases demonstrating uneven reliance on expansive principles, becomes apparent only with inductive analysis of actual applications.

This Part introduces, both conceptually and illustratively, a large body of constitutional remedies doctrines that treat discrete substantive concerns differently. The catalog is extensive but not exhaustive, and the borders between the categories of transparent, translucent, and opaque inconsistency can be cloudy and contestable. Someone may think, for instance, that a case described here as opaquely inconsistent is actually translucently inconsistent—or not inconsistent with other relevant areas at all. But that should not detract from the bigger-picture argument that non-transsubstantivity is present, prevalent, and patterned along analytically important lines throughout constitutional remedies law.

Courts, and especially the Supreme Court, can do better. Moving from the descriptive to the normative, Part III explores four ideas for improving judicial decision-making premised on the preceding analysis. The first revolves around enhancing attention on remedial consistency by spotlighting occasions for adherence and defending instances of divergence. One way to do so involves imagining a rebuttable presumption by which constitutional remedies should apply the same way to discrete referents unless circumstances warrant idiosyncratic treatment. The second idea for improvement entails increasing transparency. All non-transsubstantive doctrines involve variable ranges, but because they apply differently to discrete referents on their faces, transparently inconsistent doctrines involve variable rationales too. The latter characteristic facilitates holding courts accountable for departures from the remedial consistency paradigm at the time of decision and evaluating their continuing justifications into the future—such that judges should work to make inconsistent doctrines more transparent.

The third idea for improvement concerns decreasing the overdetermination endemic to judicial decision-making. Judges have a lawyerly habit of oversubstantiating their analyses with more lines of logic than necessary. This runs the risk of introducing inconsistent elements (and especially opaquely inconsistent elements) into diverse doctrinal areas, as the more reasoning an opinion includes, the more likely that it will conflict with the reasoning in other opinions. The fourth idea for improvement encourages reconsidering, though not necessarily rejecting, foundational doctrines that become inconsistent (or more inconsistent) across constitutional contexts through extensive exceptions or debatable distinctions. Rather than overruling precedent, courts often carve controversial case law into finer and finer, and sometimes more non-transsubstantive, fragments. Focusing on remedial consistency favors reevaluating such decisions in whole.

Among additional contributions, this Part argues that centering remedial consistency as an important, but not absolute, aspect of constitutional law could potentially help reinforce the Supreme Court’s legitimacy at this time of widespread skepticism. For the Court loses legitimacy—whether conceptualized sociologically, morally, or legally—by acting in ways that people perceive as “political” rather than “legal.” By reducing opportunities for favoritism and disfavoritism (and especially unacknowledged favoritism and disfavoritism) among constitutional claims, the ideas suggested here could help renew some faith in the Court as committed to deciding cases on appropriate bases.

  1.  142 S. Ct. 2228 (2022). ↑
  2.  410 U.S. 113 (1973). ↑
  3.  See Shannon Najmabadi, Gov. Greg Abbott Signs into Law One of Nation’s Strictest Abortion Measures, Banning Procedure as Early as Six Weeks into a Pregnancy, Tex. Trib. (May 19, 2021, 11:00 AM), https://www.texastribune.org/2021/05/18/texas-heartbeat-bill-ab‌ortions-law [https://perma.cc/MRV9-UFKW]. ↑
  4.  See Charlie Savage, What is Ex Parte Young, Much-Discussed in the Texas Abortion Case?, N.Y. Times (Nov. 1, 2021), https://www.nytimes.com/2021/11/01/us/politics/what-is-ex-parte.html [https://perma.cc/ZB9F-ELTX]. ↑
  5.  See Kate Zernike, Idaho Is First State to Pass Abortion Ban Based on Texas’ Law, N.Y. Times (Mar. 14, 2022), https://www.nytimes.com/2022/03/14/us/idaho-abortion-bill-texas.‌html [https://perma.cc/9U98-2CTA]. ↑
  6.  Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021). ↑
  7.  Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 539 (2021). ↑
  8.  Id. ↑
  9.  See Whole Woman’s Health v. Jackson, 642 S.W.3d 569, 583 (Tex. 2022); see also Whole Woman’s Health v. Jackson, 31 F.4th 1004, 1006 (5th Cir. 2022) (instructing the district court to “dismiss all challenges to the private enforcement provisions of the statute”). ↑
  10.  See, e.g., Strict Scrutiny, A Uterus, If You Can Keep It, Crooked Media, at 27:00 (Dec. 10, 2021), https://castbox.fm/episode/A-Uterus%2C-If-You-Can-Keep-It-id2173578-id4496‌96579? [https://perma.cc/LMQ9-WS9A] (podcast episode hosted by Professors Leah Litman, Melissa Murray, and Kate Shaw, with guest Professor Steve Vladeck). ↑
  11.  Amanda Hollis-Brusky (@HollisBrusky), X (Dec. 10, 2021, 11:00 AM), https://twitter.‌com/HollisBrusky/status/1469336195045814278?s=20 [https://perma.cc/NRH3-SCD3]. ↑
  12.  Id. ↑
  13.  Id.; see also, e.g., Jacob D. Charles, Are Gun Rights Safe After S.B. 8?, The Hill (Dec. 15, 2021, 9:31 AM), https://thehill.com/opinion/judiciary/585700-are-gun-rights-safe-after-sb8/ [https://perma.cc/LXW5-DPRB] (stating that “it would be hard to see the conservative justices reaching that same conclusion if gun rights were at stake”). ↑
  14.  E.g., Evan Bernick (@evanbernick), X (July 23, 2022, 11:50 PM), https://perma.cc/‌VAQ4-4MPW (“If SCOTUS does take [the California gun control law] up, I doubt it will be treated similarly. Which is part of why the prospect of this getting struck down is not going to deter conservatives from modeling other stuff on SB 8.”); see Cal. Code Civ. Proc. § 1021.11. ↑
  15.  See S. Bay Rod & Gun Club, Inc. v. Bonta, 646 F. Supp. 3d 1232, 1235 (S.D. Cal. 2022); Miller v. Bonta, 646 F. Supp. 3d 1218, 1222 (S.D. Cal. 2022); see Jon Healey, Californians Have a Green Light to Sue the Gun Industry. How Will That Work?, L.A. Times (Jan. 1, 2023, 3:36 PM), https://www.latimes.com/california/story/2023-01-01/californians-will-soon-have‌-their-chance-to-sue-the-gun-industry [https://perma.cc/XT7P-6A7Q] (explaining that a federal district court “nixed . . . the ‘fee-shifting’ provision that would have saddled gun-industry litigants with all or part of the court costs from any suit challenging the state’s gun controls, even if they prevailed in court,” but that “[t]he rest of [the law] remains in effect, including the private right of action”). ↑
  16.  Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2275–76 (2022). ↑
  17.  Zachary S. Price, Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post-Kennedy Supreme Court, 70 Hastings L.J. 1273, 1280 (2019). ↑
  18.  Peter Moore, First Amendment Is the Most Important, and Well Known, Amendment, YouGov (Apr. 12, 2016, 3:15 PM), https://today.yougov.com/topics/politics/articles-reports/‌2016/04/12/bill-rights [https://perma.cc/Q73Y-5FDM]. ↑
  19.  See generally Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67 (2023) (outlining the unique development of, and some challenges within, Second Amendment jurisprudence). ↑
  20.  See Joel S. Johnson, Supreme Court Cases of Interest, Crim. Just., Fall 2023, at 44, 44–45 (noting that “[t]he Court has not granted certiorari on a Fourth Amendment issue since 2020”). ↑
  21.  See Jodi Kantor & Jo Becker, Former Anti-Abortion Leader Alleges Another Supreme Court Breach, N.Y. Times (Nov. 19, 2022), https://www.nytimes.com/2022/11/19/us/supreme‌-court-leak-abortion-roe-wade.html [https://perma.cc/6VD6-GJF9] (“A majority of Americans are losing confidence in the institution, polls show, and its approval ratings are at a historic low. Critics charge that the court has become increasingly politicized, especially as a new conservative supermajority holds sway.”). ↑
  22.  Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr. (Sept. 1, 2022), https://www.pewresearch.org/politics/2022/09/01/positive-views-of-sup‌reme-court-decline-sharply-following-abortion-ruling/ [https://perma.cc/MXM3-8TP7]. ↑
  23.  Id. ↑
  24.  Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 861 (1999). ↑

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
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    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.”). ↑

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