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104 Geo. L.J. 777 (2015-2016)
The Public Interest Class Action

handle is hein.journals/glj104 and id is 787 raw text is: The Public Interest Class Action DAVID MARCUS* Public interest lawyers often bring large-scale cases against govern- ment defendants for injunctive relief as class actions. Until recently, their class certification motions routinely succeeded, enabling plaintiffs to obtain sweeping remedies that have required fundamental reforms to government policies and practices. In recent years, however, the proce- dural law regulating the public interest class action has changed dramati- cally, with recurring doctrinal problems splitting the federal courts. Should a nascent trend against class certification continue, class action doctrine will soon present a formidable obstacle-possibly a barrier-to the successful prosecution of a sort of litigation that has produced innumerable changes to prisons, foster care systems, and other govern- ment agencies and services over the last fifty years. Any path out of the present confusion must address a basic but neglected question: why do large-scale public interest cases so regularly proceed as class actions? The answer involves an underappreciated interaction between the law of class actions and other doctrines devised to limit standing and the scope of remedies. Class action procedure enables public interest plaintiffs to vindicate policies in the substantive law consistent with broad, systemic remedies without asking courts to usurp power from other branches or adjudicate ineptly. Without class certification, these policies would lie dormant because the other doc- trines would unnecessarily derail litigation. This counterweight function can generate responses to the doctrinal problems that courts have struggled to answer in this new era for the public interest class action. If class action procedure evolves in a manner that is consistent with its function, large-scale public interest litigation will remain a viable means for the achievement of structural reform. * Professor of Law, University of Arizona Rogers College of Law. © 2016, David Marcus. This Article has benefited from presentations at the First Annual Civil Procedure Workshop, Brooklyn Law School, Stanford Law School, the University of Arizona, the University of California-Hastings College of Law, the University of Pennsylvania, and the University of Texas. Bob Bone, Steve Burbank, Maureen Carroll, Andy Coan, Scott Dodson, David Engstrom, Jonah Gelbach, Myriam Gilles, Rick Marcus, Toni Massaro, Chimene Keitner, Nina Rabin, Chris Robertson, Carol Rose, Reuel Schiller, Norm Spaulding, a wonderful group of Penn Law students, and the superb editors of The Georgetown Law Journal provided helpful feedback. Sam Adriance, Lauren Hartz, and Kate Hollist provided helpful research assistance.

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