The Story of a Class: Uses of Narrative in Public Interest Class Actions Before Certification

Abstract

Stories have power. When litigants in public interest class actions tell their stories, the narratives can advance the law and influence public debate. But before class members’ stories can vindicate civil rights on the merits, plaintiffs must overcome the hurdle of class certification.

For decades, class certification under Federal Rule of Civil Procedure 23 was not a significant challenge for plaintiffs seeking to litigate as a class. But recent restrictive procedural developments—including heightened standards for class certification—threaten the powerful stories that can be told through public interest class actions.

Missing in the critical analysis of class action jurisprudence is any discussion of how advocates can use narrative techniques to meet that heightened certification standard. Similarly, law and narrative scholarship has devoted little attention to the class action.

This article begins to fill that gap by engaging in a critical reading of two recent public interest class actions: one challenging family separations at the border, and one challenging the denial of abortion care to pregnant unaccompanied minors in immigration custody. The article identifies narrative choices that ultimately enable class certification and further storytelling in public interest class actions. The article argues that narrative theory can provide an important perspective on the debate over restrictive class action procedure, and makes recommendations for courts and lawyers to pay greater attention to narrative in class action cases.

Keywords: class action, class certification, civil procedure, litigation, pleading, pretrial, public interest, civil rights, constitutional rights, immigration, Supreme Court, legal storytelling, narrative, Wal-Mart v. Dukes, Flores