Class Actions and Justiciability

A lingering issue in class action law concerns the case or controversy requirement of Article III, otherwise known as the requirement of justiciability. For purposes of justiciability doctrines such as standing, mootness, and ripeness, is the class action brought by all class members, some class members, or just the class representative? This Article argues that the answer should be none of the above—it should be the class attorney. This Article first shows that the function of the class action is to assign dispositive control of, and a partial beneficial interest in, the class members’ claims to the class attorney. Put another way, the class action functionally creates a trust, with the class attorney as trustee of the claims for the benefit of the class. This Article argues that the creation of such a trust is essential for the categories of litigation in which class actions are permitted. But, in doing so, the class action also makes the class attorney the de facto real party in interest. This Article then shows that the current law of justiciability provides some support for viewing the class attorney as the relevant party for Article III purposes. It shows, in particular, that current law permits a court to recognize the standing of a noninjured party like the class attorney when, as in all class action settings, such recognition is necessary to adequately protect the interests of those injured. This Article concludes by exploring what lessons the trust function of the class action can provide for the law of justiciability. One central lesson of the trust function of the class action is that those who are initially assigned the right to bring a lawsuit, such as those who are personally injured, are not always adequate representatives of their own interests, let ∗ Associate Professor of Law, University of Miami School of Law. Email: scampos@law.miami.edu. Phone: (305) 284-5899. I am grateful for comments I received at the Fifth Annual Junior Faculty Federal Courts Workshop, the New Voices in Civil Justice Workshop at Vanderbilt, and workshops in Miami and Houston. I especially want to thank Robin Effron, Brian Fitzpatrick, Michael Froomkin, John Goldberg, James Grimmelmann, Dennis Lynch, Linda Mullenix, Erin O’Hara O’Connor, Amanda Rose, David Rosenberg, Suzanna Sherry, Rob Sitkoff, Henry Smith, and Kevin Stack for their helpful comments. Ali Levenson, Megan Ralstin, Sara Solano, and Bridget Schultz provided excellent research assistance. All errors are mine. 1 Campos: Class Actions and Justiciability Published by UF Law Scholarship Repository, 2015 554 FLORIDA LAW REVIEW [Vol. 66 alone others. This Article uses this lesson to address the adequacy of representation concerns that underlie the law of justiciability. This Article ultimately argues that the law’s insistence on a personal injury to satisfy justiciability requirements like standing is misplaced. Federal courts instead should focus on ensuring the adequate representation of all the interests affected by their exercise of jurisdiction. INTRODUCTION 554 I. THE FUNCTION OF THE CLASS ACTION 560 A. Joinder v. Representative View of the Class Action 561 B. The Trust View of the Class Action 565 C. The Class Action Categories 574 D. Trust v. Agency 577 II. THE CLASS ACTION AND THE LAW OF JUSTICIABILITY 581 A. Class Actions and Article III 581 B. Cognizable Injury and Injury In Fact 586 C. Cognizable Injury and the Right to Bring Suit 590 D. “Hohfeldian” and “Non-Hohfeldian” Plaintiffs 597 III. THE FUNCTION OF THE LAW OF JUSTICIABILITY 598 A. Adequacy of Representation 599 B. Incentives to Litigate 605 C. Separation of Powers 611 1. United States v. Windsor 616 2. Hollingsworth v. Perry 618 CONCLUSION 621