The Persistence and Uncertain Future of the Public Interest Class Action

Authors

David Marcus, UCLA School of Law

First Page

395

Abstract

Cases against government defendants for large-scale injunctive relief often turn on the class certification decision. From the modern class action’s early days until 2011, these “public interest class actions” enjoyed marked success in the federal courts. This procedural favor seemed to lapse when the U.S. Supreme Court decided Wal-Mart Stores, Inc. v. Dukes. The decision tightened the requirements that govern class certification in public interest cases. In Wal-Mart’s immediate wake, several courts of appeals vacated certified classes in important structural reform lawsuits. This litigation seemed to face a tough road ahead.

But the public interest class action has persisted. In this symposium contribution, I report quantitative and qualitative findings from my analysis of every reported decision on class certification in a federal public interest case from June 21, 2011 to March 31, 2020. About 75% of district court decisions favor plaintiffs, and appellate judges continue to vote for plaintiffs at a high rate. I use a typology of public interest class actions to explain the reasons for Wal-Mart’s modest impact. The case has proven irrelevant to two of the public interest class actions’ three major types. Wal-Mart has changed litigation practice in the third, a type involving structural reform lawsuits challenging systemic government maladministration. The decision has forced litigants and courts to clarify the nature of the substantive rights at stake with more precision. These efforts have prompted a “group rights” jurisprudence to crystallize. Courts have come to understand that the substantive law in these cases protects plaintiffs not as individuals but as undifferentiated group members. As such, this law is not just amenable to class-wide adjudication. It requires class action procedure for its vindication.

The persistence of the public interest class action does not depend on how procedural law evolves going forward. It depends on whether federal judges continue to recognize group rights in bodies of law protecting prisoners, children in foster care, people with disabilities, and other vulnerable populations. As my findings of disparities in judges’ willingness to support class certification suggest, ideology will likely determine this future course.

Recommended Citation

David Marcus, The Persistence and Uncertain Future of the Public Interest Class Action, 24 Lewis & Clark L. Rev. 395 (2020).
Available at: https://lawcommons.lclark.edu/lclr/vol24/iss2/5