Oftentimes when we call a thing someone’s “property,” we do so to invoke a very specific picture of the owner’s rights to that thing. To call something “property” often entails significant limits to what one can do to regulate the thing. The Due Process Clause and Takings Clause both enter the picture. Even outside of legal discourse, the term “property” has a rhetorical power that brings to mind what Blackstone called the “sole and despotic dominion” one can exercise over the thing. That is why “[m]ine is often one of the first words toddlers learn.” To quote an old American Express commercial, ownership, like membership, “has its privileges.”
So one would think that conceptualizing a thing as “property” would have an important effect on how we think about the thing. But what if it doesn’t? What if it actually leads to inconsistent, irreconcilable views in different contexts? What if it turns out that thinking about something as “property” does not provide much analytic clarity at all?
This is the bold thesis of J. Maria Glover’s A Regulatory Theory of Legal Claims, where Glover takes on longstanding debates about the conceptual status of the legal claim. Civil procedure scholars continue to debate whether the legal claim is a party’s “property,” as opposed to an aspect of procedure that is subject to the discretionary regulation of the court. Glover’s goal is not to resolve the debate but to dissolve it, as a debate that does not have the significance that the debaters give it.
Her technique is quite clever. She examines the state of the debate in different procedural contexts to show that conceptualizing the claim as property can lead to different, often inconsistent views depending on the context.
Take, for example, the class action context. The class action has often been criticized because it takes away a class member’s control over her claim, and thus takes away an important stick in the property rights bundle. In fact, a class attorney can sell the class member’s property in a settlement without the class members’ consent. For that reason, courts and scholars have been wary of certifying class actions in many contexts. Consider, for example, Justice Scalia’s throwaway line in Wal-Mart Stores, Inc. v. Dukes, that class actions for injunctive relief “rightly or wrongly” do not require notice of the class action for the class members or provide an opportunity for the class members to opt out.
But if the class action can be understood as a “taking” of the party’s control over her claim, then a party should obviously have the power to sell the claim to whomever he or she wants. Not so fast. For example, recently there has been a rise in “alternative litigation finance,” understood as attempts to finance litigation by selling shares in a claim’s recovery. At the same time, there has been a rise in lobbying efforts to change the laws of champerty and maintenance, which prohibit such claim selling. One would think that, given the paternalistic bent of the class action, plaintiffs’ attorneys would work hard to preserve champerty and maintenance laws to protect the naïve interests of the claimholders. Similarly, one would think that the defendants’ bar, as champions of the property rights of the claimholders, would push for greater opportunities to sell claims. But the opposite is true, as Glover points out – plaintiffs’ attorneys love litigation finance and the defense bar hates it.
Glover’s point is not to identify hypocrisy in the debate over the status of the claim. Her point is to question the very debate itself. As property scholars have long understood, property rights in a thing are never absolute and are frequently regulated depending on the objectives of the law. I may own the land where my residence is located, but I may have to grant an easement to allow public access to the beach. Consequently, calling something “property” does not negate the ability of courts and legislators to restrict an owner’s use of it.
Glover seeks to import that property-law insight into procedure, not by settling whether the claim is property, but by looking at the objectives of the claim. Moving in a more functionalist direction, Glover argues that the extent of a claimholder’s control rights over her claim depends on the objectives that litigation of the claim is meant to achieve. As I have argued in my own work, if protecting control rights in a claim can lead to worse compensation and deterrence in certain contexts, we should not protect them. But if protecting control rights would help (or at least not impede) underlying substantive rights, then, by all means, protect those rights. These positions are not inconsistent because they are unified by the same objective of property law in general—that the regulation of one’s control over a thing should depend on what the law, and by extension society, wants to achieve.
This is why Glover calls her theory a “regulatory” theory of the claim, and in the latter part of the article Glover discusses the implications of taking this approach to contexts such as Rule 68 offers of judgment, alternative litigation finance, and, finally, the class action. Indeed, one important takeaway of the article is that courts are empowered to regulate claims consistent with substantive goals and institutional constraints.
Glover’s article makes her point in a very persuasive and fun way. Because it is theoretical, it differs somewhat from the articles that I have liked lots in the past. But it does share with those prior articles a sensitivity to how procedure works on the ground. Glover does not talk about theory for theory’s sake, but really looks at the practical implications of theory, bringing such abstractions down to earth. For that reason, Glover makes a significant contribution to the literature.
The Supreme Court’s decision in Wal-Mart v. Dukes set off a groundswell of concern among many scholars, lawyers, and legal commentators about its potential impact on employees’ capacity to collectively pursue relief, particularly for systemic intentional discrimination claims. As one of those concerned parties, I enjoyed reading the five-year retrospective by Michael Selmi and Sylvia Tsakos, which seems to suggest that Wal-Mart’s impact on such claims has been more of a wave than a tsunami. Selmi and Tsakos recognize the ways in which the Court’s ruling has taken its toll, but they highlight how much Wal-Mart’s impact is a matter of degree rather than kind. Pre-Wal-Mart, the class action landscape was characterized by skepticism toward nationwide class actions, greater merits-focused class certification, and jurisdiction-dependent class treatment. Post-Wal-Mart, those trends have expanded to the detriment of civil rights claims. While this expansion is normatively problematic, this article makes an important contribution to the literature by situating Wal-Mart historically and putting it into a broader perspective. In addition, Selmi and Tsakos identify a forward trend of class certification jurisprudence involving certain kinds of subjective employment practices, which have been found to satisfy Rule 23’s commonality requirement even under current class action jurisprudence.
The authors’ sobering observation that employment discrimination class actions alleging subjective practices have been struggling, combined with their positive observation that some of these class actions remain viable post-Wal-Mart, lead the authors to conclude that Wal-Mart’s effect thus far has been modest.
As an initial matter, the article establishes that Wal-Mart has changed the litigation landscape to the detriment of employees. For example, fewer plaintiffs have filed employment discrimination class actions, and those that have must incur substantial additional costs if they seek damages under Rule 23(b)(3). Moreover, emboldened by the ruling, more defendants are seeking to dismiss employment cases even before the class certification determination. (P. 804.)
The authors make no bones about their impression that the Supreme Court – and certainly its “conservative wing” – is hostile to class litigation in general and in particular to the kind of class action pursued in the Wal-Mart case. This hostility stems from the common-yet-unsupported perception that defendants are unfairly subjected to immense pressure to settle given the high costs and potential widespread liability class actions present. They argue that this overlooks the absence of evidence of potential blackmail, the availability of alternative tools for curbing settlement pressure, and the reality that plaintiffs face significant costs and risks too.
Initially, systemic challenges to facially discriminatory employment policies seeking injunctive relief made class certification straightforward. But as workers started to challenge subjective employment practices and to seek significant monetary damages (and a jury trial) for intentional discrimination pursuant to the Civil Rights Act of 1991, their capacity to unite under the umbrella of one lawsuit waned. Federal appellate courts split over the propriety of class certification under Rule 23(b)(2) — the traditional injunctive class action for civil rights cases. Some courts continued to allow employees to litigate collectively, while others rejected such routine certifications where employees sought monetary relief. This schism and differing judicial philosophies about aggregation naturally led to forum shopping.
The article contends that barriers to aggregation that existed prior to Wal-Mart, not surprisingly, have bled into the post-Wal-Mart era. This means that Wal-Mart is like its predecessors — a product of judicial hostility toward aggregation of employment claims that dates back at least a couple of decades. At the same time, the particular facts of Wal-Mart are distinct from typical employment class actions. The plaintiffs attempted to sew together the claims of 1.5 million women nationwide in a single suit on the ground that decentralized excessive subjective personnel decision-making was a policy that harmed women; this was a bridge too far for the Court. Although plaintiffs’ liability theory did not cover new ground, the size and scope of the case did. Consequently, no amount or type of evidence could satisfy the Wal-Mart majority that there existed a policy of systemic gender discrimination here.
Selmi and Tsakos pivot from establishing the fertile ground from which Wal-Mart swelled to how employment discrimination class actions have since fared. They conclude that for cases not alleging the identical theory pursued in Wal-Mart, there has not been a “death knell” of employment discrimination class actions. Given Wal-Mart’s unique facts, courts have been able to distinguish the case, thereby permitting certification or denying decertification. Some noteworthy appellate cases have breathed new life into the possibility of class certification for discriminatory subjective decision-making in the workplace. For example, in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., Judge Posner distinguished Wal-Mart and reversed denial of class certification where low-level managers exercised discretion but did so pursuant to two companywide policies that had an adverse disparate impact on African-American brokers. Another example is Scott v. Family Dollar Stores, Inc., where the court clearly delineated Wal-Mart’s strictures and permitted certification of a class action alleging discretionary employment practices. The Fourth Circuit concluded that commonality was satisfied where there existed a uniform corporate policy and higher-level managers were the ones making discretionary decisions that had a disparate impact on female workers or that revealed a pattern or practice of intentional gender discrimination. These appellate decisions demonstrate that the ambit of Wal-Mart’s reach may not be as wide as anticipated.
In sum, Selmi and Tsakos do a great job of making sense of a complex area of law by putting Wal-Mart into a broader context for analysis. Granted, their conclusion that Wal-Mart has not greatly diminished class certification for employment discrimination cases because it was already difficult to begin with is not good news for plaintiffs. This observation speaks only to Wal-Mart’s relative impact, and the certification bar was already high before the Wal-Mart decision. More encouraging is the jurisprudence emanating from lower courts that define the contours of Wal-Mart and forecast potentially viable employment discrimination class actions.
Selmi and Tsakos have made a compelling case for why Wal-Mart has not marked the “death knell” of collective actions challenging workplace discrimination. This is crucial. It also leaves a question: Is this good enough? Teeing up this question is an equally important contribution of this article. I look forward to our answering this next fundamental question in the future.