Constructing Issue Classes

Abstract

As government budgets shrink each year, enforcement responsibilities in products liability, consumer protection, and employment discrimination fall increasingly to private attorneys. But defendants have successfully layered new objections about noncohesive classes and unascertainable members atop legislative and judicial reforms to cripple plaintiffs’ attorneys’ chief weapon — the class action. The result? Courts deny class certification and defendants escape enforcement by highlighting the differences among those affected by their misconduct. At the other end of the regulatory spectrum lies the opposite problem. Some defendants’ actions are so egregious that hordes of public and private regulators can’t help but get involved — think the GM ignition switch debacle or the BP Oil Spill, for example. Whether regulators are chasing splashy headlines, easy money, or public support, the result is a cacophony of litigation in dispersed fora that risks inefficient resource use and inconsistent verdicts regarding a defendant’s conduct.

A one-line sentence buried within Rule 23 offers a partial elixir for problems at both ends of the enforcement spectrum. That sentence, Rule 23(c)(4), allows courts to certify certain issues for class treatment. While issue certification is experiencing a renaissance in the courts, scholarship has stagnated. Commentators have fixated on the technical to-be-or-not-to-be question of how to read Rule 23(c)(4) within the rule’s predominance requirement. But they have offered strikingly little theory or guidance on how issue classes might revive private enforcement and coordinate fractured regulatory responses through issue preclusion.

This Article aims to fill that void with an alternative theory of class cohesion — a term that appears nowhere in Rule 23, but has emerged at the center of Supreme Court jurisprudence. This theory not only informs the class-certification calculus by identifying core questions ripe for issue-class adjudication, but also simplifies vexing questions over the sufficiency of aggregate proof and class members’ ascertainability. Shedding anachronistic, stereotypical notions that immutable characteristics like gender and race fuse members into a cohesive class can reveal what often unites groups for adjudication purposes: defendant’s uniform conduct. When a defendant’s actions are non-individuated (GM’s failure to take appropriate safety precautions, for example), litigating the components within a claim or defense that regulate defendant’s conduct on a classwide basis can revive private enforcement and stymie inconsistent outcomes through preclusion.

Keywords: class action, Rule 23, attorneys' fees, multidistrict litigation, Seventh Amendment Reexamination Clause, Parens Patriae, Ascertainability, choice of law, aggregate proof, Rule 23(c)(4)

JEL Classification: K10, K41, K13, K40, K42