Constitutional rights can impact large groups, yet most plaintiffs in civil rights cases bring individual claims. Critics of the Supreme Court’s decisions regarding class actions, such as the decision last Term in Dukes v. Wal-Mart, have argued that the Court is generally limiting the ability of plaintiffs to bring class actions through procedural limitations, such as the Wal-Mart Court’s heightening of the commonality requirement. I trace the problem deeper into the substance of constitutional doctrine. The Court has defined certain constitutional rights to require highly individualized inquiries. For example, Fourth Amendment excessive force claims, the bread and butter of constitutional tort litigation, often require an individual analysis of the reasonableness of the search. As a result, courts may deny class certification citing to a lack of common issues. Other constitutional rights - ranging from due process rights, criminal procedure rights, equal protection claims, and takings claims - similarly resist aggregate treatment. The Wal-Mart ruling - although procedural - will have a disproportionate impact on particular substantive areas of the law, even within civil rights litigation. I suggest that this confluence of procedural rulings and change in constitutional doctrine was not anticipated and nor is it desirable. I explore changes to sub-constitutional remedial doctrine and statutes that could rekindle aggregate constitutional litigation. Aggregation would benefit more than just the plaintiffs who bring these cases. If constitutional litigation becomes a purely solitary affair, sporadic cases may have an outsized impact, but in an ad hoc way that provides poor notice to government officials. Aggregation can improve clarity, legitimacy, participation, and representation. Bigger lawsuits may sometimes be better - particularly when developing constitutional values.
Brandon L. Garrett, Aggregation and Constitutional Rights, 88 Notre Dame Law Review 593-648 (2012)