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36 Cardozo L. Rev. 2017 (2014-2015)
Aggregation for Me, but Not for Thee: The Rise of Common Claims in Non-Class Litigation

handle is hein.journals/cdozo36 and id is 2125 raw text is: AGGREGATION FOR ME, BUT NOT FOR THEE: THE RISE OF COMMON CLAIMS IN NON-CLASS LITIGATION Maureen Carrollt When a plaintiff seeks an injunction or declaration based on a defendant's generally applicable policy or practice, the case has an inherently aggregate dimension, regardless of whether the plaintiff brings it as a class action or as an individual suit. Recent cases involving marriage rights for same-sex couples, affirmative action in higher education, the National Security Agency's metadata program, and the Affordable Care Act's contraceptive mandate-among others-have all taken the non-class form, notwithstanding the underlying claims' amenability to class treatment. Difficult problems arise when a plaintiff brings a common claim in non- class litigation. The plaintiff might obtain system-wide relief without the knowledge or participation of other potential claimants; this creates a representational asymmetry. The defendant might be bound by collateral estoppel or a system-wide decree if the plaintiff wins, but other potential claimants will not be bound by collateral estoppel if the plaintiff loses; this creates a preclusive asymmetry. Most important, the absence of class treatment jeopardizes values that the judicial system should promote, such as judicial economy, accuracy, and rights articulation. This Article analyzes plaintiffs' structural disincentives to seeking class treatment for claims seeking purely injunctive or declaratory relief, and the wide-ranging repercussions of the plaintiffs' procedural choice for other litigants and the judicial system. It then proposes a set of changes designed to make the class action device more attractive and available to plaintiffs bringing these types of claims. t Bernard A. and Lenore S. Greenberg Law Review Fellow, University of California, Los Angeles, School of Law. I owe many thanks to Tendayi Achiume, David Babbe, Sam Bray, Emily Carroll, Joel Feuer, Gwyn Leachman, Bill Rubenstein, Joanna Schwartz, Jay Tidmarsh, Jordan Woods, and Steve Yeazell for their helpful comments on earlier drafts. I would also like to thank the participants in the ASU Legal Scholars Workshop, the UCLA Law Fellows' Workshop, and the Williams Institute Workshop for their valuable feedback. 2017

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