The Class Appeal

45 Pages Posted: 9 Aug 2021 Last revised: 26 Aug 2021

Date Written: August 7, 2021

Abstract

For a wide variety of claims against the government, the federal courthouse doors are closed to all but those brought by powerful, organized interests. This is because hundreds of laws—colloquially known as “channeling statutes”—require disaffected groups to contest government bodies directly in appellate courts that hear cases individually. In theory, these laws promise quick, consistent, and authoritative legal decisions in appellate courts. In fact, without class actions, government bodies avoid judicial review by selectively avoiding claims brought by some of the most vulnerable claimants in the administrative state—from veterans and immigrants to coal miners, laborers, and the disabled.

This Article proposes a novel solution: courts of appeals should hear class actions themselves. In so doing, courts high in the judicial hierarchy would continue to authoritatively decide important legal questions involving government institutions, while ensuring groups of similar, unrepresented parties finally get their day in court. While appellate class actions might sound like a strange procedural innovation, appellate courts already have power do this. Relying on the All Writs Act, appellate courts long ago created ad-hoc procedures modeled after class actions to respond to systemic government harm.

This Article is the first to examine nascent experiments with appellate class actions. It shows that, contrary to popular belief, appellate courts can hear class actions and explains why they should do so. In cases challenging systemic abuse, this power has become vital not only to level the playing field between the government and the governed, but to protect courts’ core function in our separation of powers—to hear claims, interpret law, and grant meaningful relief. Without classwide judgments in such cases, courts risk ceding power to the executive branch to decide for itself when judicial decisions limit its own unlawful policies.

Keywords: Class actions, administrative law, judicial review, access to justice, veterans law, immigration law

Suggested Citation

Zimmerman, Adam S., The Class Appeal (August 7, 2021). University of Chicago Law Review, Vol. 89, 2022 Forthcoming, Loyola Law School, Los Angeles Legal Studies Research Paper No. 2021-23, Available at SSRN: https://ssrn.com/abstract=3901197 or http://dx.doi.org/10.2139/ssrn.3901197

Adam S. Zimmerman (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States

HOME PAGE: http://www.lls.edu/aboutus/facultyadministration/faculty/facultylists-z/zimmermanadam/

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
308
Abstract Views
2,162
Rank
150,303
PlumX Metrics