Ascertaining Ascertainability

Oct 28, 2026 Adam N. SteinmanAdd a Comment

Adam N. Steinman

Class actions have long been an important and controversial weapon in the civil justice arsenal. And those who teach, study, and litigate class actions are well aware of the myriad obstacles that federal courts have erected in recent years that can block class certification—even when a class action would be the most effective way to hold powerful entities accountable for illegal conduct with broad societal consequences. One such obstacle (although it appears nowhere in the text of Rule 23) goes by the moniker ascertainability. Maureen Carroll and Madena Mustafa’s terrific article provides a timely account and critique of how courts are interpreting and applying this often-muddled concept.

The authors begin by disentangling three distinct inquiries that courts have placed under the ascertainability label. One is Definitional Clarity, which is the requirement that a class definition be clear and (usually) objective. It screens out vague definitions, subjective definitions that turn on state of mind, and (at times) “fail-safe” classes defined by success on the merits. Another version, Individual Provability, demands that a court be able to determine, by reference to objective criteria and records, whether any particular person standing before it is a class member. The third variant is Enumerability, which requires a reliable and administratively feasible mechanism for generating a list of absent class members (an approach associated with the Third Circuit’s decisions in Marcus v. BMW and Carrera v. Bayer).

Carroll and Mustafa nicely illustrate the escalating burden of these standards with a hypothetical involving purchasers of Lucky Charms cereal. The same class definition is easily certified under Definitional Clarity; it may succeed or fail under Individual Provability depending on whether the stores and businesses selling the product maintain electronic purchase records; and it likely fails Enumerability when those records are scattered across thousands of retailers in non-standardized formats.

Having identified the different approaches to ascertainability across various federal courts, Carroll and Mustafa rigorously examine the extent to which each version comports with the text and structure of Rule 23. To evaluate the three variants, the authors use five justifications courts have offered: proper application of the class-certification requirements in Rule 23(a) and (b); determining the preclusive effect of a class-wide judgment; the notice and opt-out process for Rule 23(b)(3) classes; distribution of monetary relief; and efficiency. The Definitional Clarity version of ascertainability emerges as well supported. Without a clear definition, a court cannot assess whether the class meets Rule 23’s certification requirements, give effect to preclusion, or design an appropriate notice plan. Individual Provability has narrower support. It can serve the goal of deciding whether a future plaintiff is bound by a class judgment, but ascertainability should not require that preclusion be determined without individualized fact-finding in the later case. Enumerability finds no solid footing. Rule 23(c)(2)(B) requires individual notice only to members “who can be identified through reasonable effort”; preclusion can be enforced in later litigation without any need for a pre-existing list; and concerns about manageability and efficiency already have a home in the predominance and superiority requirements of Rule 23(b)(3).

The final part of the article identifies several problems stemming from the inconsistent approaches to ascertainability. One concern involves Rule 23(b)(2) class actions that seek exclusively injunctive or declaratory relief. Many courts state that ascertainability does not apply to Rule 23(b)(2) classes—and Carroll and Mustafa endorse that view with respect to the stricter Individual Provability and Enumerability variants. But the authors worry that even Rule 23(b)(2) class actions require a clear and objective definition in order to conduct the Rule 23 certification analysis and to clarify the scope of any resulting injunction. In addition, they show how the lack of attention to the competing meanings of ascertainability has allowed important doctrinal changes to occur under the cover of obscurity. The Third Circuit’s Marcus decision offers a compelling example. The court presented its new Enumerability requirement as well established, citing six earlier ascertainability decisions, none of which actually imposed that strict version. The authors also show how courts sometimes engage in a “bait-and-switch,” invoking justifications that support only Definitional Clarity to impose one of the more restrictive flavors of ascertainability.

The Trouble with Ascertainability is a valuable contribution to civil procedure scholarship. By naming the distinct requirements hiding behind a single word, testing each against the purposes courts claim it serves, and documenting the concrete errors that confusion has produced, Carroll and Mustafa bring welcome precision to an important issue. It is worth a careful read by scholars, practitioners, and jurists alike.

Personal Jurisdiction and the Tapestry of Constitutional Law

Sep 29, 2026 Allan ErbsenAdd a Comment

Allan Erbsen

Imagine that a presenter at an academic conference summarizes the Supreme Court’s recent decisions. The presenter explains that Dobbs v. Jackson Women’s Health Organization addressed regulatory constraints on certain medical procedures and therefore is primarily of interest to health law scholars; that Trump v. United States addressed a defense to certain criminal charges and therefore is primarily of interest to criminal law scholars; and that Students for Fair Admissions v. Harvard addressed university admissions criteria and therefore is primarily of interest to education law scholars. The audience would conclude that the presenter missed the bigger picture. Each decision invoked principles with broad implications beyond the specific context in which the constitutional issue arose. Each should and will interest scholars in many fields.

Now suppose that the same presenter mentions that Pennoyer v. Neff is a famous decision about civil procedure. The audience that rejected the presenter’s prior oversimplifications might nevertheless accept the presenter’s narrow characterization of Pennoyer as a civil procedure case. The academy has relegated constraints on personal jurisdiction to the margins of the constitutional landscape. Pennoyer is a staple of civil procedure courses, but rarely receives substantial coverage in courses about constitutional law. Yet Pennoyer is interesting primarily because the Court sanctified a territorial account of state power with the imprimatur of the Fourteenth Amendment’s Due Process Clause. Pennoyer therefore should feature prominently in discussions of federalism. Marginalizing Pennoyer as a case about civil procedure minutiae makes the same type of mistake as reducing Dobbs to a health law decision, reducing Trump to a criminal law decision, and reducing SFFA to an education law decision.

In Pennoyer, Due Process, and the End of Reconstruction, Aderson François and Helen Hershkoff restore Pennoyer to the broader constitutional context in which it belongs. They contend that Pennoyer is not merely a case about the meaning of the Due Process Clause as applied to personal jurisdiction. Instead, scholars should analyze Justice Stephen Field’s 1878 Pennoyer opinion in the context of contemporary jurisprudential debates. At the time the Court decided Pennoyer, Reconstruction was waning and a “Confederate narrative” reifying state sovereignty was rising. A competing narrative from Reconstruction’s defenders emphasized the importance of national power to protect civil rights. In this fraught environment, even seemingly mundane cases provided opportunities to skew the trajectory of important constitutional principles. François and Hershkoff contend that Justice Field seized this opportunity to undermine Reconstruction. Field could have resolved Pennoyer without citing the Due Process Clause, which the states did not ratify until after the challenged conduct occurred. His dalliance with due process presents a puzzle for scholars who focus narrowly on personal jurisdiction but has a clearer rationale when viewed as a component of postbellum legal discourse. Invoking the Fourteenth Amendment enabled Field to transform a dispute about the mechanics of attachment jurisdiction into a vehicle for framing the states’ role in the federal system.

François and Hershkoff uncover Justice Field’s reasoning by examining contemporary constitutional jurisprudence. Throughout the 1870s, courts struggled to synthesize the new Reconstruction Amendments with the original Constitution. Each case nominally presented a narrow issue implicating a particular domain, such as voting procedures, criminal law, and economic regulation. But these ostensibly distinct cases had a unifying thread. Each required considering whether the national government could exercise power in ways that antebellum principles would have precluded. Justice Field’s pre- and post-Pennoyer opinions tended to favor antebellum norms. He framed these norms as providing a strongly entrenched backdrop that limited what the Reconstruction Amendments could accomplish. Viewed in this context, Pennoyer’s endorsement of territorial sovereignty as an intrinsic feature of the original Constitution was a strategic maneuver. By prioritizing a perceived tradition of state discretion within its territory, Field fortified antebellum federalism principles against postbellum encroachment. François and Hershkoff frame this maneuver as part of a “gradual emergent policy that became solidified in constitutional doctrine over time” and led to Reconstruction’s defeat.

The article adds a second layer of historical inquiry that further enriches analysis of Pennoyer’s significance. Pennoyer considered whether a state court had jurisdiction to execute a default judgment upon land that Neff acquired under the 1850 Oregon Donation Act. Both the Donation Act and judicially endorsed land seizures were controversial. The Donation Act overtly discriminated based on race: white settlers could claim land while black settlers could not. After white settlers claimed land, they were at constant risk of losing the land to predatory schemers, including through dubious writs of execution. François and Hershkoff therefore view Pennoyer’s requirement of pre- rather than post-judgment attachment as a mechanism that supported white property owners seeking to protect their economic interests. The racial subtext and endemic insecurity of title were not formally before the Court, but the Justices—especially Field, who was from California—would have been aware of related controversies swirling around ownership of western land. This context provides a prism for viewing Pennoyer that a myopic focus on the formal holding would obscure.

François and Hershkoff’s “central point” is that “trying to understand Pennoyer from a perspective that is only internal to jurisdiction doctrine, divorced from its time and its place, distorts the decision’s rationale and occludes its significance to constitutional politics.” While they limit their inquiry to Pennoyer, their point also applies to subsequent cases that addressed personal jurisdiction. For example, International Shoe Company v. Washington’s emphasis on “unreasonable or undue procedure” can be understood as favoring a functional rather than formal approach to analyzing state power in a federal system. Burnham v. Superior Court’s dueling opinions about the significance of “traditional rules” can be understood as staking positions in the Court’s long-running effort to define the boundaries of substantive due process. And the Court’s recent decisions in Mallory v. Norfolk Southern Railway and Ford Motor Company v. Montana Eighth Judicial District Court are as much about selecting proper methods of constitutional interpretation as they are about personal jurisdiction.

Personal jurisdiction decisions are small vignettes in an evolving tapestry of constitutional law. The academy’s siloed approach to curricula and scholarship obscures the relevance of this tapestry. In contrast, Justices often are acutely aware that they are weaving individual opinions into a broader narrative about the intersection of state power and individual rights. François and Hershkoff’s fascinating article highlights the importance of viewing the Court’s personal jurisdiction decisions as part of the broader narrative that the decisions draw upon and extend. Pennoyer’s implications for constitutional law are far more substantial than its immediate focus on post-judgment attachment suggests.

Learning from Others: Summary Judgment in Canada

Sep 2, 2026 Sergio J. CamposAdd a Comment

Sergio J. Campos

Any serious study of civil procedure in the United States should learn from other procedural systems. Comparative study has a number of advantages. It can provide insights about alternatives. It can shed light on beneficial features of our own procedural system that we take for granted. And it can generate questions for further study.

In Hyrniak’s Erosion: Summary Judgment in Ontario, Suzanne E. Chiodo, Gerard J. Kennedy, & Alyssa King conduct an insightful and nuanced empirical study of summary judgment motions in Ontario provincial courts (the equivalent of state courts in the United States). The motivation for the study is a tension between two views of summary judgment. The first, endorsed by the Supreme Court of Canada in Hryniak v. Mauldin (2014), views summary judgment as a vehicle for increasing access to justice by reducing the costs of litigation. The central idea is that the amount of procedure should be “proportional” to the case, and in some lower-stake cases providing a full trial would be a form of “undue process,” raising costs and discouraging plaintiffs from filing suit. The second, endorsed by the Ontario Court of Appeals, discourages summary judgment because such motions are themselves costly and can hinder the “full appreciation of the evidence and issues” needed to resolve a case.

As someone who studies U.S. civil procedure, a few things jumped out to me. First, Ontario’s summary judgment standard is a bit looser than the “no genuine dispute as to any material fact” standard for U.S. federal courts, which prohibits the judge from evaluating conflicting evidence. In U.S. federal courts fact-finding is usually the jury’s job, and in some cases constitutionally required. Ontario employs a summary process that allows a judge “to engage in a live fact-finding hearing and weigh significant amounts of evidence.” Second, summary judgment in Ontario is de facto at the discretion of the court. In U.S. federal courts a party “may move for summary judgment” without leave of court. Parties in Ontario’s provincial court “must appear before a motions scheduling court . . . in order to schedule a summary judgment motion.” According to a report by the Civil Rules Review Working Group, convened by the Ontario Attorney General and the Chief Justice of the Ontario Superior Court of Justice, “courts in certain regions have started refusing to schedule summary judgment motions . . . despite lacking explicit authority to do so.” And in Ontario one judge may decide whether to schedule a summary judgment motion while a different judge decides the motion itself.

Chiodo, Kennedy, and King study the hearing and disposition of summary judgment motions in Ontario, creating a data set based on Westlaw searches designed to capture the universe of summary judgment motions resolved from 2015 to 2024. The authors sought to measure the effects of Hyrniak on the provincial courts, as well as the observed dip in motions resolved during the pandemic around 2020. This highlights another feature of Canadian civil procedure. Courts in the United States provide publicly available dockets; regardless of one’s feelings about PACER, almost all docket entries in the federal system and most state court systems are presumptively available to the public. Not so in Canada. The authors could not measure the number of summary judgment motions filed, and thus the study “offers limited insight into the behavior of parties.” Instead, the authors were limited to those summary judgment decisions reported on Westlaw, with the data set used by the Civil Rules Review Working Group serving as a check.

The authors found that Hyrniak did have an effect in increasing the number of summary judgment decisions in Ontario courts. But when the pandemic slowed all decisions; the number of summary judgment decisions never recovered. Figure C from the study shows this difference, with the key pivot in 2020.
In addition to the decrease in numbers, the percentage of summary judgment grants increased, suggesting that “courts are not only hearing fewer motions, but ones that are safer.” Here we may be getting some insight into party behavior. Given the cost of summary judgment motions, parties may be self-selecting, filing when they are more certain of prevailing. Alternatively, scheduling courts may be weeding out summary judgment motions that are unlikely to prevail. The authors do some further nuanced analysis of the data set with respect to appeals, regional differences, the time to decision, and the effect of legal representation.

I like this study lots. It provides a window into summary judgment as an “access to justice” device, opening up alternatives such as “mini-trials” that may be viable in the United States with some creativity (e.g., bellwether trials in multidistrict litigation). More broadly, the concept of “proportionality” introduces the possibility of too much, or “undue,” process, requiring courts to create streamlined processes for smaller cases. U.S. courts and scholars should take that concept seriously. The study also highlights how lucky we are in the U.S. to have publicly available information about the courts. Finally, its sensitive analysis of the data suggests some interesting avenues of further study, such as party responses to procedural vehicles more generally and the effects of procedure on ex ante behavior.

Delineating De Minimus

Jul 20, 2026 Christine BartholomewAdd a Comment

Christine Bartholomew

How many uninjured plaintiffs are too many? The question–which arises across class action litigation, from consumer to employment cases–sounds simple. But as Tom Flesher demonstrates in his student note, federal courts cannot agree on an answer.

Flesher’s note centers on Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, a price-fixing case that is hard not to love as a teaching vehicle precisely because the facts are so clean. The defendants were the three largest canned tuna producers in the nation, two of whom had already pled guilty to federal criminal charges; none seriously disputed wrongdoing.

The case nonetheless nearly came apart at class certification. Experts for both sides acknowledged that a portion of the putative class suffered no injury, though they disagreed about magnitude. Plaintiffs’ expert used a pooled regression model (aggregating all class members together) to estimate the figure at 5.5%. The defendants’ expert (relying on disaggregated data) put it at 28%. The district court granted certification. The Ninth Circuit affirmed, reasoning that aggregate statistical evidence of average overcharge could satisfy Rule 23(b)(3)’s predominance requirement even where a substantial minority of class members went unharmed. The court maintained this result aligned with other circuits. As Flesher argues, courts actually diverge, not just on how many uninjured members are too many, but on whether aggregate statistical evidence can satisfy predominance at all.

It would be easy to minimize Olean as different circuits drawing different lines. The Olean majority characterized the other circuits’ decisions as merely fact-specific rather than rule-based, effectively denying a split existed.

Flesher’s close textual analysis shows something more important–doctrinal disagreement. That is a meaningful scholarly contribution, given that some have accepted the Ninth Circuit’s framing at face value. The First Circuit in In re Nexium Antitrust Litigation and In re Asacol Antitrust Litigation adopted a de minimis rule. The D.C. Circuit in In re Rail Freight Fuel Surcharge Antitrust Litigation gestured toward something even stricter. Flesher calls the Supreme Court’s denial of certiorari a missed opportunity, particularly given that the Ninth Circuit handles more antitrust class actions than any circuit.

The note is especially valuable because Flesher does not stop at his doctrinal analysis. He explains why the question is so hard to resolve, explaining regression analysis accessibly and well. The choice between pooling and disaggregating data can determine whether a class is certified at all. Competing econometric models can yield dramatically different results, and judges often lack the tools to choose between them. Flesher’s primer on regression modeling makes that problem concrete. Statistical fog is part of the story, and he clears enough of it to show what is really at stake.

Flesher also keeps the public policy costs associated with defining de minimis squarely in view. An overly demanding rule allows wrongdoers to retain ill-gotten gains simply because the diffuse nature of harm makes perfect plaintiff identification impossible. As Flesher puts it, “benefits are concentrated with the producers and harms are spread across the relatively much larger number of purchasers”—no individual victim is well positioned to prove damages alone. He further observes that even a gold-standard regression model built to economists’ typical 95% confidence threshold will statistically misclassify some plaintiffs as uninjured. A de minimis rule that ignores this baseline limitation may set a bar that sound econometric practice cannot clear. The stakes are especially high in the antitrust context, where private enforcement is the primary check on anticompetitive conduct and procedural barriers to certification have already taken a significant toll.

Flesher concludes by weighing in on a question the Olean court never had to reach. Had the district court credited the defendants’ expert, he argues, certifying a class with 28% uninjured members would have gone too far. Perhaps we should push back on this conclusion, which sits uneasily with his argument. If an overly demanding standard lets wrongdoers off the hook, it is worth asking whether certifying the Olean class was not merely defensible, but correct. That tension aside, the note’s willingness to grapple honestly with a hard problem is part of what makes it worth reading.

Variable Standards is short, timely, and effective. The circuit split it chronicles remains unresolved. As recent scholarship confirms, the doctrinal and statistical challenges surrounding uninjured class members are only growing in importance. For scholars and practitioners who grapple with predominance in class actions, Flesher has provided an invaluable roadmap to a problem that is only going to get harder to ignore.

Equity Emerges from the Shadow (Docket)

Jun 19, 2026 James E. PfanderAdd a Comment

James E. Pfander

Like the weather in the Midwest, about which more is said than done, so too with the Supreme Court’s “shadow docket” or, depending on your preferred locution, the “emergency” or “interim” docket. Now that may change. In an engaging paper, Thomas Schmidt and Kellen Funk propose a new name and a new way of conceptualizing the growing and increasingly important power (and predisposition) of the Supreme Court to intervene in ongoing disputes in the lower federal courts.

As a central element of the Court’s response to Trump II, the spate of shadow docket decisions over the past fifteen months has been nothing less than astonishing. The Trump Administration sought emergency relief in twenty significant cases in the second half of the October Term 2024, almost half as many as the forty-one the First Trump Administration sought in four years. Not only has the Court been setting the status quo pending final resolution, in Justice Kavanaugh’s telling, it has been remaking the substantive law along the way. Caught in the crossfire between an impetuous president and a cautious Court that has accommodated and sought to avoid direct conflict, lower federal courts have been whipsawed. Unable to overrule settled precedent, lower courts have applied the law on the books only to find their orders stayed or vacated by a Court that sees the law differently or strikes a different equitable balance. For example, the Court in the officer removal cases rejected lower court applications of Humphrey’s Executor, then circled back to clarify the situation.

What to do? Schmidt and Funk deploy the maxims of equity from the time of the divided bench to offer a cogent set of solutions. In an oversimplified version of the argument, the authors propose viewing the Court’s docket as consisting of a law side and an equity side, much the way the federal courts approached their divided bench responsibilities in the early republic. On the law side, the Court does its usual work – granting petitions for certiorari, addressing important and divisive questions of law, and formulating rules to govern life in these United States. We know this law side well; it is the familiar Court we learn about in school. On the shadow or equity docket side, the Court performs the classic equitable function of assessing likely success on the merits and irreparable harm as it manages interim applications for stays and injunctions.

That proposed division of labor explains the authors’ suggestion that we rename this the equity docket. What would such a nominal change accomplish? The authors offer the intriguing suggestion that, following the classic approach of equity courts past, “equity should follow law.” That maxim has a number of interesting implications. Perhaps most importantly, it suggests that the Court should deploy its law docket to make the law (or find it or whatnot) and use its equity docket to conduct a more select form of interest balancing in the face of uncertainty. Such an approach would ensure that changes in law take place through the ordinary processes of oral argument, reasoned decision-making, and the considered resolution of important questions that have divided the lower courts.

That change alone would obviate the Court’s practice of overruling settled precedent with limited explanation. It also would help save the Court from its bad habits of failing to explain its results, of hinting at changes in law through equitable decrees, and of decrying lower court decisions that fail to understand the new dispensation. These bad habits are on full display in the Court’s emergency docket rulings on grant terminations. In NIH v. American Public Health Association, Justices Gorsuch and Kavanaugh accused a district court judge of “defy[ing]” their four-paragraph order in Department of Education v. California. Senior District Judge William Young of the District of Massachusetts felt compelled to apologize, explaining that he “simply did not understand that orders on the emergency docket were precedent.” We have seen rugs pulled out from under lower courts on any number of occasions, from pandemic-era religious liberty cases to recent litigation over grant termination and removal of federal officials without cause.

Of course, the authors have more to say. They would encourage reason-giving by the Court, even in the hurried precincts of equity docket work. They would deploy other equitable maxims (such as the principle that those who seek equity must do equity) to help guide the decisional process (and perhaps rein in some of the most outrageous government conduct). And they would call for a reconsideration of the Court’s capricious view that any stay of government action threatens irreparable harm and thus establishes a basis for equitable intervention.

Introducing an equitably constrained shadow docket may provide one additional benefit, not fully explored in the draft I read. Consistent application of the requirement that equity follow law could substantially improve relations between the Supreme Court and the lower federal courts that do the important work of first-instance disposition and review. If the Court were restrained in equity and left legal change to its more readily accessible and orderly law side, lower courts could confidently apply the law without fear that their decisions need to predict future changes. Otherwise, lower courts occupy an impossible position: they cannot predicate their decisions on a prediction that the Court will change the law. As one district court described it, lower federal courts cannot “defy” Supreme Court precedent, but the Court’s decisions “have not been models of clarity, and have left many issues unresolved.”

If, in administering the equity docket, the Court focused on the proper equitable balance and took the law on the books as a given, lower federal courts could do the same. By thus aligning with the applicable law, implementing the equity docket constraint could restore a world in which federal courts at all levels of the Article III hierarchy work together in a judicial department devoted to applying and enforcing the same body of law.

One must of course ask if a change in nomenclature would alter the Court’s behavior. Some equity docket decisions display a marked determination on the part of a bare majority to impose a specific solution to a problem, orderly process and decorum to the contrary notwithstanding. But the task of justification remains, both as the Justices deliberate over outcomes internally and explain those outcomes externally through opinions of the Court. Workways have consequences for the way institutions operate. A self-conscious decision to frame its interim docket as infused with the values of equity may help to shape the set of options the Court sees as available as it contemplates yet another intervention into lower court decision making.

Perhaps it won’t change the weather at the Supreme Court, but it may moderate the gusts.

Resilience and Judicial Power in the Aftermath of Trump v. CASA

May 18, 2026 Suzette M. MalveauxAdd a Comment

Suzette M. Malveaux

The Supreme Court of the United States is poised to make one of the most important decisions this term: the constitutionality of President Trump’s Executive Order challenging birthright citizenship. As the Court considers this substantive question, many scholars, judges, lawyers, and Americans are still grappling with the meaning of its earlier remedial decision, Trump v. CASA. Thankfully, Professor Mila Sohoni’s essay provides an excellent analysis of the case and its implications.

Sohoni provides a thoughtful, fair, and clear-eyed summary of what the opinion does and does not do. She starts by explaining how the Court now forbids district courts from issuing injunctive relief beyond the parties (“universal injunctions”). She flags important interpretive vacuums and questions left in CASA’s aftermath. Having clearly identified CASA’s boundaries, she recognizes the various means through which federal courts can provide broad injunctive relief to those challenging executive branch overreach. Finally, and most importantly, Sohoni contextualizes CASA during these turbulent times.

Pulling out to a bird’s eye view, she illustrates how the Trump Administration is weaponizing CASA. The Administration accuses federal court judges of judicial activism, defiance, and insubordination whenever they issue systemic injunctive relief. Such rhetoric aims to misinform the public and to punish and silence judges who perform their jobs by acting independently and consistently with the Constitution and rule of law. Sohoni urges the judiciary and others not to take the bait. The Administration’s campaign to delegitimize judges, judicial review, and the oversight process is a dangerous path we cannot afford to spiral down. Sohoni offers not only practical legal strategies for those fighting widespread suffering under the current political regime, but a deeper understanding of what is at stake moving forward.

The essay begins by setting the table, unpacking remedies law and shedding light on the Court’s jurisprudence regarding the scope of equitable relief. Sohoni would know; she has been studying and writing in the area for over a decade. The Court has cited her numerous times during the first and current Trump Administrations. Her voice is central to understanding the landscape, especially post-CASA. In a complex case with three concurrences and two dissents in addition to a 6-3 majority, Sohoni makes CASA surprisingly accessible.

In a nutshell, CASA no longer allows federal district courts to issue injunctive relief beyond the parties to a case. The Supreme Court concluded that the Judiciary Act of 1789 forbids such “universal” injunctions.

By way of background, CASA arose from three cases filed by individuals, organizations, and states in federal district courts in Maryland, California, and Washington challenging the Executive Order (EO) 14160 redefining birthright citizenship under the Fourteenth Amendment Citizenship Clause and the Nationality Act of 1940. Each district courts issued a nationwide preliminary injunction, enjoining implementation and enforcement of the EO against anyone nationwide. Three courts of appeals denied the Administration’s requests for stays, leading the government to file emergency applications to the Supreme Court to stay the injunctions as they applied to non-parties. The Administration argued that the district courts did not have the equitable authority to issue nationwide or “universal” injunctions, a position CASA’s conservative majority (6-3) endorsed.

Relying on the Judiciary Act of 1789 (rather than Article III), the Court stayed the injunctions to the extent that they were broader than necessary to provide “complete relief” to each plaintiff with standing to sue. The Court concluded that Congress only granted federal courts equitable remedies that were “traditionally accorded by courts of equity” at the founding. Going back to the High Court of Chancery in England, the Supreme Court described longstanding general practice of the Chancellor as awarding remedies specific to the parties. Courts of equity in the U.S. at its founding followed this trajectory. In a battle among the experts (primarily between Sohoni and Sam Bray), CASA’s majority sided with the latter, concluding that universal injunctions were absent for most of the nation’s history (1700s, 1800s) and surfaced relatively recently (in the 1900s). The Court rejected bills of peace and taxpayer suits as precursors to today’s universal injunctions, concluding: “Because the universal injunction lacks a historical pedigree, it falls outside of the bounds of a federal court’s equitable authority under the Judiciary Act.” Any benefit to non-parties can only be “incidental” and is allowed only if this is the “only feasible option.”

With the remedy of non-party universal injunctive relief off the table, many scholars, judges, lawyers and litigants are trying to figure out what’s next. Sohoni characterizes the legal landscape as follows: “CASA has not reset the relationship between federal courts and the executive branch. What it has done is introduce new sources of tension into it.” The opinion has left open several “interpretive vacuums” with which many of us are wrestling. While Sohoni concedes that it will take time to grapple with the issues left unaddressed, undefined, and ambiguous, she provides an excellent roadmap to begin that understanding. The essay explores court power and injunctive relief post-CASA in five areas: complete relief, agency vacatur, injunctive class actions, associational and third party-standing, and statutory authority.

First, while CASA preserved federal courts’ capacity to provide “complete relief” to plaintiffs, it left the term undefined. Complete relief includes “indivisible” remedies (e.g., the quintessential scenario where blaring loud music that is turned down benefits not only the complaining neighbors but also their non-party neighbors because the remedy cannot be divided). Complete relief also includes universal relief when it is the “only feasible option” (e.g., a broader injunction offers the only workable way to avoid the financial and administrative burdens on states administering federal programs that turn on the citizenship of beneficiaries). Complete relief is not guaranteed, and functions as a cap. Yet such relief, while only between the parties, may benefit non-parties when “incidental.” Thus, federal courts have significant room to award “complete relief.”

Second, CASA carved out universal vacatur of an unlawful federal agency rule or action under the Administrative Procedure Act (APA). Lower courts can continue their long history of universally setting aside unlawful agency conduct. Having distinguished the APA from the Judiciary Act, Justice Kavanaugh’s concurrence concludes that vacatur may act as the “functional equivalent” of the now-defunct universal injunction.

Third, CASA permits the modern injunctive class action of Federal Rule of Civil Procedure Rule 23(b)(2), enabling broad systemic relief. So long as litigants satisfy the Rule’s “rigorous” criteria, they may be entitled to broad relief protecting everyone affected by the challenged executive policy. CASA held that the universal injunction was an impermissible “workaround” to Rule 23 class actions, but not vice versa. Unlike the banned universal injunction, the class action has the requisite “historical pedigree”—the bill of peace. Justice Kavanaugh’s concurrence identifies the modern class action as the “functional equivalent” of the now-defunct universal injunction, so long as district courts follow proper procedure. Moreover, CASA permits a preliminary injunction for a putative class (one not yet certified), even though its members are not (yet) parties. This is allowed, Sohoni argues, because the class action’s equitable history bona fides predate the Rule’s adoption in 1966. Thus, the class action, while described by Justice Sotomayor’s dissent as “cumbersome,” may help fill CASA’s remedial gap.

Fourth, CASA was silent about associational and third-party standing. This means that organizations may continue to seek injunctive relief for their unidentified members nationwide and states may continue to seek the same for their individual residents. The law remains intact post-CASA.

Fifth, CASA’s holding is significantly limited by its reliance on statutory, rather than constitutional, grounds. Tethered to the Judiciary Act, CASA leaves open the possibility that other statutes may provide courts with the authority to provide universal equitable relief (e.g., the APA) and that Congress itself could broaden such authority by amending the Judiciary Act.

Having offered ways courts post-CASA can broadly check executive branch overreach, Sohoni turns to the Administration’s misreading of the opinion and its dangerous implications. Shifting from a relatively optimistic lens to a more sinister one, she warns of the Administration’s larger goals to discredit and retaliate against judges who act independently and to undermine judicial review writ large. The Administration accuses federal judges who order broad injunctions against its lawfully dubious policies of circumventing CASA. It portrays such judges as “rogue,” “activist,” “defiant,” and politically motivated, while criticizing them for abusing their authority and engaging in insubordination. The Administration expects lower court judges to do its bidding, rather than responsibly interpret and apply the law and exercise discretion in complex ways. The Administration vilifies normal law percolation and checks and balances.

This type of rhetoric is not only inflammatory, but dangerous. Judges are ignored and disobeyed, sued, targeted for impeachment, verbally attacked, and subjected to death threats, all for doing their job. This assault on judges who courageously issue orders consistent with the rule of law is part of a larger campaign to de-legitimize the judiciary. Sohoni reminds the Supreme Court of its power and responsibility to hold the line so that “reasoned dialogue and mutual respect” may once again define our “constitutional culture.” On the cusp of authoritarianism, Sohoni’s warning could not come sooner.

The Lost Story of the Pelvic Mesh Litigants

Apr 15, 2026 Seth EndoAdd a Comment

Seth Endo

Multidistrict litigation (MDL) cases now comprise a majority of the federal docket. And MDLs often are one of the only means of providing victims of mass-torts with the possibility of redress. But even after Federal Rule of Civil Procedure 16.1 took effect on December 1, 2025, there is limited guidance for courts, lawyers, and litigants. Despite this, as Nora Freeman Engstrom identifies, “These decisions can affect hundreds of thousands of litigants and, in many cases, the legitimacy of the civil justice system itself.” Unsurprisingly, MDLs provide a frequent subject for legal scholars.

Even the best scholarship frequently misses a vital component, however—the on-the-ground experiences and stories of the litigants themselves. Elizabeth Chamberlee Burch’s new book builds on her earlier work to address this gap, providing a unique window into the pelvic-mesh MDLs and how unscrupulous lawyers, doctors, and con artists preyed on vulnerable women.

Beginning in the late 1990s, transvaginal mesh was used to treat pelvic organ prolapse in women. Thousands of women experienced significant complications from the treatment. Eventually the FDA banned its use. Many affected women sued the makers of the pelvic mesh, with the lawsuits consolidated into an MDL. Crooked lawyers targeted these women, persuading them to undergo unnecessary surgeries to remove the mesh– ostensibly for their health but really to boost the economic value of their cases and trap them in high-interest loans.

Burch reviewed thousands of court records and interviewed more than a hundred people to tell the full story of this scandal, pairing her legal expertise with deeply insightful reporting that centered the stories of three plaintiffs who fell prey to the predatory tactics. Humanizing the legal issues makes the book especially powerful in several ways.

First, the plaintiffs’ experiences demonstrate the vast gap between the formal rules and the lived reality of the law. In one interview, Burch described her students’ questions about the book “because everything they’re learning in all their other classes say you can’t do this.” I confess to having the same reaction. At dozens of points in the book, I stopped reading to silently rant about the professional-conduct and procedural rules that were broken. But I had the advantage of knowing these rules, being able to take a break from the book, and not suffering any of the harms.

In contrast, the three profiled plaintiffs—Sharon Gore, Barbara Shepard, and Jerri Plummer—never got to step away. And that leads to the second key contribution: the stories make salient the breaches of trust by their original lawyers as well as the lack of any real oversight or accountability from the legal system. Burch and other scholars have covered the potential disconnect between MDL lawyers and their clients; these personal accounts breathe real life into the issues. And the popular media has picked up on this, with Burch’s book garnering a detailed positive review in The New Yorker.

Third, Burch’s reporting and analysis highlights the complexity of legal reform. While loosening regulations on legal practice is often viewed as promoting access to justice, it carries real risks Some of the worst actors were non-lawyers who ran the “law firms” that were, in fact, call centers soliciting vulnerable women.

Fourth, Burch challenges some conventions of legal academia by demonstrating the power of storytelling. In this way, it leans in the direction of the emerging participatory legal scholarship movement and centers the voices of those most directly affected by the law, not just Ivory Tower experts.

In her New Yorker review, Casey Cep called Burch “the Jane Goodall of complex litigation.” And The Pain Brokers is an important contribution to the literature, offering a fresh perspective on evergreen themes—how economic resources interact with access to justice, how procedural rules influence outcomes, the effectiveness of the legal profession’s self-regulation, and more.

[Editor’s note: For another review of The Pain Brokeers, see Anthony Sebok, The Shame of Mass Torts, JOTWELL (April 15, 2026).]

Standing and the Legislative Power

Mar 24, 2026 Howard M. WassermanAdd a Comment

Howard M. Wasserman

Good scholarship connects distinct areas and issues, highlighting consistencies and inconsistencies (some might say hypocrisies) across areas. Elizabeth Beske’s Article III’s Constraints on the Legislative Power connects a well-covered area—35 years of SCOTUS narrowing Article III standing, from Lujan through TransUnion—to historic and modern controversies over congressional power and judicial aggrandizement at legislative expense.

Beske places standing in the broader discussion of the imperial Supreme Court and Supreme Court supremacy. Rather than limiting the power of courts to hear and decide cases—the oft-repeated rationale for justiciability doctrines—the Court wields Article III to limit the legislative power. Spokeo v. Robins and TransUnion v. Ramirez narrowed Congress’ power to authorize litigation between private parties for statutory harms and statutory damages, absent a showing of a traditional judicially recognized common law injury.

She highlights six features of these new limitations on congressional power.

First. Beske traces the Court’s evolution on the Commerce Clause and economic substantive due process, from Lochner to decades of deference to legislative policy choice. The “New Federalism” that began during the Rehnquist Court established some uncertain outer boundaries to that deference. But these cases “pointedly left key precedents, like Wickard, alone,” such that the Court’s “respect for the outcome of the legislative process purports to be profound.” Beske proposes a fascinating insight: Through Article III, the Court has limited congressional power in a way it could not through Lochnerian due process or through Lopez. Through Article III it achieves preferred substantive outcomes by disregarding legislative purpose and overriding legislative work product—something the Justices insist they no longer do under Lochner.

Second. In narrowing (to the point of virtual extinction) the Bivens cause of action for damages against federal officers for constitutional violations, the Court identifies the decision to create a cause of action as a legislative choice to which courts must defer. Egbert v. Boule narrowed the Bivens analysis “to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy,” the answer to which always will be “yes.” Courts should not assess the costs and benefits of implying a cause of action; their role is to consider whether Congress is better suited to make that balance, a calibration Courts cannot second-guess. That near-absolute judicial deference to the legislative choice not to create a constitutional cause of action cannot square with TransUnion’s judicial invalidation of the legislative choice to create that statutory cause of action. If Congress possesses sole power to weigh the costs and benefits of allowing private litigation, it should possess that power regardless of which choice it makes. Of course, one might find a different throughline—deference to the choice to decline (or fail) to create a cause of action but not to the choice to create a cause of action. But that reflects anti-litigation principles rather than legislative-supremacy principles.

Third. In 2021, the year of TransUnion, the Court took a “short but critical diversion” in Uzuegbunam v. Preczewski. The Court held that a plaintiff had standing to pursue a First Amendment claim seeking only nominal damages (the government had repealed the challenged policy, mooting a request for prospective relief). Although small, nominal damages are concrete; they remedy (even if non-economically) cognizable past constitutional injury. Critically, Justice Thomas wrote the Uzuegbunam majority, pushing the core of his Spokeo concurrence and TransUnion dissent—private harms to private rights require different, more forgiving standing rules. The plaintiff suffered a legal injury when the government prevented him from speaking; that his injury might be unquantifiable did not mean he did not suffer a particularized violation of his private rights.

Fourth. The disparate outcomes in Uzuegbunam and TransUnion—decided months apart—reflect a bizarre paradox: Statutory rights demand a greater showing of injury than non-statutory rights. “While violations of a private right with a common-law or constitutional pedigree may proceed absent any inquiry into the extent, or even existence, of actual injury, as Uzuegbunam reflects, federal judges must find harm—quantifiable harm that is good-enough harm—to allow suit in federal court upon private rights created by Congress.” Pre-2021 standing doctrine does not establish or support that idea. And the majority did not consider or explain why the private harm was obvious under the Constitution in Uzuegbunam but not under the statute in TransUnion. The Court intuits that actual injury is unnecessary “when the private rights are not creatures of statute,” but “this intuition evidently disappears” when Congress has created the right.

Fifth. The Court has constitutionalized the debate over statutory damages, despite their long pedigree and their availability without proof of actual damage or harm. Statutory damages had been a contentious political and legislative question. Academics and officials debated whether legislation should include statutory-damages provisions as a proxy for difficult-to-quantify statutory harms and to encourage lawsuits or whether they produce excessive litigation and absurd liability exposure. But they were a “humdrum” legal question, requiring statutory interpretation to determine whether Congress chose to allow that remedy. TransUnion changes the question—from one of statutory interpretation to one of Article III. “What had previously been a policy debate playing out in the political arena—is it wise or unwise to allow damage awards in the absence of measurable harm?—is no longer; Article III’s case or controversy requirement has stepped in and now dictates the answer.” Beske shows how lower courts follow TransUnion to reject standing under other consumer-protection statutes, despite an express statutory damages provision that courts had interpreted as not requiring actual harm.

Sixth. Recent standing cases disregard the lessons of decades of statutory and common law understanding of increased risk as a type of harm. The Industrial Revolution and the post-World War II world exposed the insufficiency of a tort system grounded in post-hoc compensation in addressing “ambient dangers” in a complex modern world. Congress responded with statutes regulating “increased risk” as a unique harm, buttressed with private enforcement. The lines to be drawn regarding risk were political and legislative—identify the acceptable level of pollution or toxicity before imposing liability.

No more. “TransUnion holds that, according to Article III, Congress is powerless—ever—to declare that exposure to ‘risk of harm’ is itself a compensable injury.” And it does so through an analogy that misunderstands (or ignores) the problem. The majority offered a hypothetical drunk driver who makes it home without injuring another driver, insisting that driver should be celebrated rather than sued. But in that case, the absence of harm is known and knowable. In the problematic cases—groundwater contaminants, asbestos, or benzene—no one knows who may suffer future harm or when. The Court undercut the legislative power by insisting that Congress cannot authorize such suits absent the old-style tort injuries that do not exist in new contexts.

This review essay’s extensive use of quotations should highlight another quality of Beske’s article—her writing is straight, engaging, and punctuated by sharp turns of phrase. Finding—and promoting—well-written scholarship that offers new ways of examining legal problems—JOTWELL exists for just this article.

Judicial Sovereignty-Making at the Country’s Start

Feb 20, 2026 Marin K. Levy1 comment

Marin K. Levy

Melville’s Ishmael declares in the opening chapter of Moby Dick, “Whenever I find myself growing grim about the mouth; whenever it is a damp, drizzly November in my soul . . . then, I account it high time to get to sea as soon as I can.” In this dark February, the timing is right to take to sea—and Kevin Arlyck’s new book, The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825—is just the thing to take us there.

The Nation at Sea provides a new historical account of the federal judiciary’s early days—one that shifts the way we understand how our country took its place in the world, and how the federal courts took their place in our country. The story so often told is that the federal courts were rather quiet after they were established. They began to find their voice with Chief Justice Marshall at the Court’s helm in cases such as Marbury v. Madison and McCulloch v. Maryland. And through such cases, the story goes, the Court began establishing its role in the constitutional order and its role in American nation-building.

Arlyck has a different story to tell—one that centers around the power of the courts in resolving disputes not on American soil but out at sea. His book shows how case after case made its way to federal court through Article III’s exclusive admiralty and maritime jurisdiction, and why these cases were of political, legal, and diplomatic import. From matters of trade to matters of war, American judges adjudicated foreigners’ legal rights and obligations. What’s more, the other branches of the federal government came to depend upon what had been perceived to be the “weakest” of the three, thereby building the judiciary’s credibility at home.

They key point is not simply that federal judges were making their way as they stated the law in cases of international consequence. It is that at a time when the outcome of our national project was uncertain, the resolution of such disputes by our courts helped prove the project’s mettle on the world stage. In Arlyck’s words, such judicial actions “demonstrated the young republic’s fitness for admission into the community of ‘civilized’ (that is, European) nations” resulting in a kind of “judicial sovereignty-making.”

It is in moments such as this that historians (and reviewers of the work of historians) face a common challenge: what is the work’s payoff? To be sure, this history is valuable in and of itself. Facts matter and the stories we tell matter—and Nation at Sea, by correcting the record of our origins, should be viewed as essential reading for those who teach and write in Federal Courts. (As if that were not enough, it is simply a delight to spend time reading up on prize cases and puzzling through whether and when U.S. courts can exercise jurisdiction over foreign pirates!) But a skeptic may nevertheless press—does Nation at Sea provide lessons for our current moment?

Arlyck says the answer is yes—and the end of the book makes connections to the modern day. It focuses on the courts’ role in cases that implicate foreign relations. One oft-made claim is that courts are to be greatly deferential to the other branches in this space. And yet, as we learn in Nation at Sea, it was well settled through the first few decades of the country’s history that the courts could (and, it was thought, should) resolve various maritime controversies implicating foreign relations, even (if not especially) during wartime. Particularly at a time when judicial interest in early historical practices is piqued, the courts’ role in foreign affairs for the first third of a century of the country’s life could well reorient that inquiry today.

More broadly, it is worth observing that there is a great deal of uncertainty on today’s horizon. Returning to our point of origin, as one of the sailors declares in Moby Dick, “I know not all that may be coming . . .” In myriad ways, we are all at sea. At this moment, a fuller story of how the courts came into their power—and helped bring the country into its power—is a worthy tale to take in, not just as a log of past journeys, but as a potential compass for future ones.

Take Notice: Governmental Review of Class Action Settlements

Jan 23, 2026 Linda S. MullenixAdd a Comment

Linda S. Mullenix

Class action practitioners and scholars are well aware that before a federal court may approve a class action settlement, the judge must assess the settlement’s fairness, adequacy, and reasonableness under various Rule 23(e) requirements. The Advisory Committee on Civil Rules has paid heightened attention to settlement approval, amending Rule 23(e) in 2003 and 2018. State class action procedures contain similar rules relating to judicial scrutiny of state class settlements.

Although the judicial role in overseeing class action settlements is well known, the role of governmental entities under the Class Action Fairness Act of 2005 (CAFA) in assessing class settlements has been somewhat overlooked in class action scholarship. This is not surprising; since CAFA federalized class action procedure, academic discussions of CAFA’s intricacies has receded. Michael Solimine and Hailey Martin’s recent article in the Journal of Legislation reminds us that CAFA intended to provide governmental entities with an additional role in assessing class action settlements, including rights to comment and object. Their article assesses the effect of CAFA’s provision for governmental oversight of class settlements.

CAFA’s notice requirements recognize the role for the federal government and state attorneys general in assessing settlements. When settling parties submit a proposed agreement to federal court for a fairness hearing, they must notify the United States attorney general and relevant state AGs. The notice must include documents such as the complaint, settlement agreement, and hearing schedules. The court cannot approve the settlement for 90 days to allow these officials to respond, comment, or object. Legislative committee hearings on CAFA indicated that the notice’s primary purpose was “to safeguard plaintiff class members’ rights,” and to enable state AGs to “voice concern if they believe that the class action settlement is not in the best interests of its citizens.” Failure to apply with the CAFA notice requirement renders a settlement void.

Solimine and Martin assess the effect of CAFA’s notice provision on class action settlements. At the federal level, DOJ’s consumer protection office monitors notices and responds when necessary, although it has played a negligible role in assessing or objecting to proposed settlements. DOJ has no standardized system for receiving and tracking CAFA notice and experienced long delays in processing the notices internally. And it rarely objects to proposed settlements, despite receiving hundreds of CAFA notices annually; it responded to notices only six times in the first sixteen years since CAFA’s passage in 2005. Complicating the federal landscape, there is widespread non-compliance with the CAFA notice provision, with many lawyers confessing unawareness of the requirement. Anecdotal evidence suggests that parties involved in securities class litigation simply believe CAFA’s notice requirement does not apply to their litigation.

The article identifies instances in which AGs from Arizona, Connecticut, Florida, and the District of Columbia, either singularly or in concert with other state AGs, have offered objections to contested settlements. But the authors acknowledge that while anecdotes are important, no systematic literature documents state AG responses.

Solimine and Martin seek to fill this informational gap with a detailed empirical case study of the Ohio AG’s office handling CAFA notices from 2007 to 2024. It documents a detailed system for receiving, reviewing, and responding to CAFA notices. Upon a receipt, a paralegal distributes the notice to a relevant section and designated official for review. Staff focus on assessing the complaint’s alleged harm, potential effects on Ohio consumers, class member notification, release language, injunctive and monetary relief, cy pres terms, and attorney fees. When staff concerns arise, the AG may decide to engage with other state AGs, engage in discussions with plaintiff and defense counsel, or file an amicus brief detailing their objections.

The Ohio AG’s office maintains a database that includes a “robust summary” of each case from the period, including the nature of the litigation, date of notification, parties’ representation, number of Ohio class members, final hearing date, and pertinent notes. Solimine and Martin argue that Ohio’s system reflects a greater awareness of, an more centralized response to, CAFA and CAFA notices among state AGs than in the DOJ.

They conclude that federal and state involvement with class settlements post-CAFA is sparse. Moreover, they show that many courts are uncertain what deference or weight to give to government responses and objections. Solimine and Martin argue that courts should give heightened deference to governmental objections, considered in conjunction with the court’s evaluation of the Rule 23(e) factors. On the other hand, they argue courts should not read the lack of government response or objection as indicating approval of the settlement or as a reason not to approve it.