If those who oppose non-plaintiff-specific relief are doing so on principle and not just politics, they should support more robust nationwide class action suits against the federal government.
Thank you so much for your thoughtful commentary on this and other issues. I joined yesterday during Schiff’s time and your comments that I saw after that were very well done, and highlighted the insane contrast with the crap that Cruz, Schmitt and Panuccio were shoveling. It was a sorry spectacle for our democracy, but illustrated that half of congress is still trying to govern responsibly.
Steve: As always, your analysis is exactly right on. I viewed myself as a contrarian on the whole nationwide injunction issue, but your point about nationwide class actions actually addresses my concern, and your approach to having it apply to suits against the government seeking equitable relief rather than monetary damages squarely addressed the problem. What had bothered me about the furor about nationwide injunctions was that if a court finds an action by the government to violate federal law or, even worse, be unconstitutional, without some form of nationwide coverage, you have a situation where the unconstitutionality applies only with respect to certain plaintiffs or a particular geographic location, but not the rest of the country. If government action is unconstitutional, that determination should not be limited to just one state, say Texas, but then for the rest of the country, the government action -- even though having been found to be unconstitutional -- remains in effect as being just fine. That outcome is absolutely nuts -- something is either unconstitutional everywhere or nowhere. Your analysis of nationwide class actions is the perfect solution and addresses this in exactly the right way.
Prof Vladeck- It seems like Class Action suits by their nature require much more legal work and effort due to the significant up-front classification efforts required? To this neophyte this approach would have a much higher cost to pursue and likely to be useable only on very large cases. Or what am I missing?
Not an area of any expertise for me, but I was wondering if law firms subject to Trump's Exec Order have or will consider FTCA in connection with tortious interference and how that could fold into your thoughts on nationwide class action as an alternative to nationwide injunction or otherwise.
Boy howdy, this topic is above my pay grade but I have, against my prior actions, participated in some nationwide class actions in the last few years: airlines and luggage charges, communications companies, and banks that sneaked services into your account without your knowledge. Unlike the old days where you got a check for $0.23, these payouts were in the tens if not 100’s of dollars.
So I checked DE (sorry, ashamedly Googled it) and it has no statewide class action legislation but does have antitrust statutes that were even updated late last year, SB 296, such that (I think) an individual can bring cause (against the state?, maybe the seller) for over charging, price fixing, etc. My eyes glazed over and my brain froze at that point.
Long story short, what do people who think they understand your logic enough do? Do we send this substack to our federal and state legislators and ask them to take a look and take action?
Really enjoyed your idea of having things kick in on 20 January, 2029, doubt, seriously, that it will do any good, but, never-the-less it is a good idea.
Thank you for an excellent article that e plains the issue. The problems. And that offers some solutions or at least the lines along which some solutions might be found . I’ve been waiting for someone with your expertise to suds out the issues. I did not wait in vain.
Thanks for the illuminating discussion--and conclusion: the GOP just wants to stop the judiciary from "interfering" with Trumpleon. It seems so obvious that there should be SOME way of considering the legality/constitutionality of policies that affect people all over the nation. And say that there is no one in, perhaps, Wyoming that will be affected by the particular policy? Then what harm is an injunction against applying the policy do in that state?
The opposite can be seen in good old judge K's nationwide "ban" on mifepristone. He may have MORAL objections to people using it, but in many states it isn't actually illegal. So a nationwide injunction makes no sense at all.
I think the problem partly IS about single District Judges, who are unelected, overruling the President of the United States (and sometimes even the United States Congress) plus, often, administrative agencies who have signed off on policies. Which is why I have proposed (and I believe Prof. Vladeck has supported this in the past) randomly selected three judge panels to do this. It should be hard to do this.
And class actions present many of the same problems. Plus, the reason class actions were curtailed and nationalized was because of a bunch of abuses by plaintiffs lawyers under the old system. Expand class actions and we risk getting those abuses again. Why do that rather than just going to random selection and three judge panels?
And sorry, but when Prof. Vladeck says "any reforms should take place after 2029", that's basically giving away the principle in the same way that he accuses Republicans and conservatives of. Obviously he wants it to be trivially easy for any liberal judge to invalidate any Trump policy, with any reform, if it happens at all, to take place after he figures a Democrat will get elected in 2028. Can't have three judge panels now! They might decide some of Trump's stuff is legal. (BTW, to be clear, a lot of it is illegal. But I have confidence in that position and don't need plaintiffs' forum manipulation to produce any artificial victories. I am fine with random selection and taking my chances.)
Now would be the best time for reform if partisan Democrats weren't thinking "how can we gum up reform so we can continue to forum select courts to invalidate all of Trump's stuff?". If that's the governing principle, we are condemned to rule by Single Unelected Selected By Plaintiff District Judge forever.
Please do share with us, Dilan, exactly where Professor Vladeck accused Republicans and conservatives of bad faith in proposing that a politically charged change in the law have effective date delayed to the next presidential administration, the party of which none of us knows. Or consider retracting your accusation.
You should consider retracting your comment, which completely misstates mine (and adopts a snarky, rude, arrogant tone in making your baseless criticism). I said he accused Republicans and conservatives of bad faith. Didn't say that accusation was in the effective date (rather I said that's where Prof. Vladeck is.... let's just say being a little partisan :) ).
But Prof. Vladeck does indeed suggest that both the effective date and the reticence to repeal the Class Action Fairness Act (and again, why would we want to expand class actions that would allow all sorts of other things having nothing to do with nationwide injunctions that Congress thought needed to be reined in rather than just solving the nationwide injunction problem?) were things Republicans needed to get behind to prove they were being principled:
"if Republicans’ current outrage is really about neutral procedural rules"
"an easy way for Republicans to show that their hostility to nationwide injunctions is really about principle, and not just short-term partisan political gain"
"f opposition to nationwide injunctions had nothing to do with broader views about when and how the federal courts should be able to hold the executive branch accountable, eliminating them in exchange for more robust nationwide class actions should (and, in my view, would) be a no-brainer."
So yeah, my comment was correct.
Honestly, what I think is actually happening here is that Prof. Vladeck probably dislikes the Class Action Fairness Act and also likes the fact that single more-likely-to-be-liberal judges are able to strike down Trump policies, so he doesn't want Congress to just fix this (even with the reform he literally proposed back when it was Biden who was getting his policies struck down). He wants to extract a price-- either in the form of bringing back the abusive class actions that were curtailed years ago, or making sure liberals get one more chance to use the old rules against Trump before we change them.
But the problem ultimately is the result of that is actually that we are just never going to change the rules, because the rules will only change when we all act like Sam Bray and not try and extract any advantage for our political project and just change the rule, immediately, neutrally, even if it hits our side in the short term.
Were nationwide class actions challenging federal policies common before the recent Supreme Court cases (Wal-Mart, et al.)? And if not, does the increased difficulty of certifying class actions really do much to explain the rise of nationwide injunctions?
Thank you so much for your thoughtful commentary on this and other issues. I joined yesterday during Schiff’s time and your comments that I saw after that were very well done, and highlighted the insane contrast with the crap that Cruz, Schmitt and Panuccio were shoveling. It was a sorry spectacle for our democracy, but illustrated that half of congress is still trying to govern responsibly.
Steve: As always, your analysis is exactly right on. I viewed myself as a contrarian on the whole nationwide injunction issue, but your point about nationwide class actions actually addresses my concern, and your approach to having it apply to suits against the government seeking equitable relief rather than monetary damages squarely addressed the problem. What had bothered me about the furor about nationwide injunctions was that if a court finds an action by the government to violate federal law or, even worse, be unconstitutional, without some form of nationwide coverage, you have a situation where the unconstitutionality applies only with respect to certain plaintiffs or a particular geographic location, but not the rest of the country. If government action is unconstitutional, that determination should not be limited to just one state, say Texas, but then for the rest of the country, the government action -- even though having been found to be unconstitutional -- remains in effect as being just fine. That outcome is absolutely nuts -- something is either unconstitutional everywhere or nowhere. Your analysis of nationwide class actions is the perfect solution and addresses this in exactly the right way.
Are the plaintiffs 50% of the country?!? Some small group, eh?!?
Prof Vladeck- It seems like Class Action suits by their nature require much more legal work and effort due to the significant up-front classification efforts required? To this neophyte this approach would have a much higher cost to pursue and likely to be useable only on very large cases. Or what am I missing?
Not an area of any expertise for me, but I was wondering if law firms subject to Trump's Exec Order have or will consider FTCA in connection with tortious interference and how that could fold into your thoughts on nationwide class action as an alternative to nationwide injunction or otherwise.
Boy howdy, this topic is above my pay grade but I have, against my prior actions, participated in some nationwide class actions in the last few years: airlines and luggage charges, communications companies, and banks that sneaked services into your account without your knowledge. Unlike the old days where you got a check for $0.23, these payouts were in the tens if not 100’s of dollars.
So I checked DE (sorry, ashamedly Googled it) and it has no statewide class action legislation but does have antitrust statutes that were even updated late last year, SB 296, such that (I think) an individual can bring cause (against the state?, maybe the seller) for over charging, price fixing, etc. My eyes glazed over and my brain froze at that point.
Long story short, what do people who think they understand your logic enough do? Do we send this substack to our federal and state legislators and ask them to take a look and take action?
Really enjoyed your idea of having things kick in on 20 January, 2029, doubt, seriously, that it will do any good, but, never-the-less it is a good idea.
Thank you for an excellent article that e plains the issue. The problems. And that offers some solutions or at least the lines along which some solutions might be found . I’ve been waiting for someone with your expertise to suds out the issues. I did not wait in vain.
Thanks for the illuminating discussion--and conclusion: the GOP just wants to stop the judiciary from "interfering" with Trumpleon. It seems so obvious that there should be SOME way of considering the legality/constitutionality of policies that affect people all over the nation. And say that there is no one in, perhaps, Wyoming that will be affected by the particular policy? Then what harm is an injunction against applying the policy do in that state?
The opposite can be seen in good old judge K's nationwide "ban" on mifepristone. He may have MORAL objections to people using it, but in many states it isn't actually illegal. So a nationwide injunction makes no sense at all.
I think the problem partly IS about single District Judges, who are unelected, overruling the President of the United States (and sometimes even the United States Congress) plus, often, administrative agencies who have signed off on policies. Which is why I have proposed (and I believe Prof. Vladeck has supported this in the past) randomly selected three judge panels to do this. It should be hard to do this.
And class actions present many of the same problems. Plus, the reason class actions were curtailed and nationalized was because of a bunch of abuses by plaintiffs lawyers under the old system. Expand class actions and we risk getting those abuses again. Why do that rather than just going to random selection and three judge panels?
And sorry, but when Prof. Vladeck says "any reforms should take place after 2029", that's basically giving away the principle in the same way that he accuses Republicans and conservatives of. Obviously he wants it to be trivially easy for any liberal judge to invalidate any Trump policy, with any reform, if it happens at all, to take place after he figures a Democrat will get elected in 2028. Can't have three judge panels now! They might decide some of Trump's stuff is legal. (BTW, to be clear, a lot of it is illegal. But I have confidence in that position and don't need plaintiffs' forum manipulation to produce any artificial victories. I am fine with random selection and taking my chances.)
Now would be the best time for reform if partisan Democrats weren't thinking "how can we gum up reform so we can continue to forum select courts to invalidate all of Trump's stuff?". If that's the governing principle, we are condemned to rule by Single Unelected Selected By Plaintiff District Judge forever.
Please do share with us, Dilan, exactly where Professor Vladeck accused Republicans and conservatives of bad faith in proposing that a politically charged change in the law have effective date delayed to the next presidential administration, the party of which none of us knows. Or consider retracting your accusation.
You should consider retracting your comment, which completely misstates mine (and adopts a snarky, rude, arrogant tone in making your baseless criticism). I said he accused Republicans and conservatives of bad faith. Didn't say that accusation was in the effective date (rather I said that's where Prof. Vladeck is.... let's just say being a little partisan :) ).
But Prof. Vladeck does indeed suggest that both the effective date and the reticence to repeal the Class Action Fairness Act (and again, why would we want to expand class actions that would allow all sorts of other things having nothing to do with nationwide injunctions that Congress thought needed to be reined in rather than just solving the nationwide injunction problem?) were things Republicans needed to get behind to prove they were being principled:
"if Republicans’ current outrage is really about neutral procedural rules"
"an easy way for Republicans to show that their hostility to nationwide injunctions is really about principle, and not just short-term partisan political gain"
"f opposition to nationwide injunctions had nothing to do with broader views about when and how the federal courts should be able to hold the executive branch accountable, eliminating them in exchange for more robust nationwide class actions should (and, in my view, would) be a no-brainer."
So yeah, my comment was correct.
Honestly, what I think is actually happening here is that Prof. Vladeck probably dislikes the Class Action Fairness Act and also likes the fact that single more-likely-to-be-liberal judges are able to strike down Trump policies, so he doesn't want Congress to just fix this (even with the reform he literally proposed back when it was Biden who was getting his policies struck down). He wants to extract a price-- either in the form of bringing back the abusive class actions that were curtailed years ago, or making sure liberals get one more chance to use the old rules against Trump before we change them.
But the problem ultimately is the result of that is actually that we are just never going to change the rules, because the rules will only change when we all act like Sam Bray and not try and extract any advantage for our political project and just change the rule, immediately, neutrally, even if it hits our side in the short term.
Were nationwide class actions challenging federal policies common before the recent Supreme Court cases (Wal-Mart, et al.)? And if not, does the increased difficulty of certifying class actions really do much to explain the rise of nationwide injunctions?