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Date: Mar. 2022
From: Harvard Law Review(Vol. 135, Issue 5)
Publisher: Harvard Law Review Association
Document Type: Article
Length: 10,997 words
Lexile Measure: 1650L

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In 2021, Texas enacted a new antiabortion law. (1) The law, SB 8, garnered attention for its dramatic curtailment of abortion rights. (2) But, more esoterically, it drew attention for its unusual enforcement mechanism. (3) SB 8 grants private citizens the authority to sue to enforce the law. (4) Often, to prevent the enforcement of an unconstitutional law, a rightsholder sues the attorney general to enjoin her from enforcing it. (5) SB 8's structure attempts to circumvent such antisuit injunctions. Even if one "private attorney general" can be enjoined, every other potential private attorney general remains able to sue. The law's unconstitutionality is still a defense. (6) But, in litigation as in war, an offensive posture is often preferred: antisuit injunctions mitigate the chilling effects of looming enforcement, even if that enforcement is unlikely to succeed. (7)

Ultimately, the Supreme Court allowed a preenforcement suit to proceed, but only against certain government officials whom, it held, SB 8 did not preclude from suing. (8) The Court's holding offers no avenue to challenge private enforcement of analogous laws, leaving an SB 8--shaped hole in the protection of all constitutional rights--from abortion to gun ownership and speech. (9)

This Note suggests a possible solution. There is a well-trodden path to binding parties en masse: the class action. The Note argues that a defendant class action is a viable mechanism for enjoining the enforcement of unconstitutional laws by private attorneys general.

After Part I sets forth some background, Part II examines the Article III implications of a defendant class action maintained against a class of private attorneys general. Part III considers the viability of such a class under Federal Rule of Civil Procedure 23. Finally, Part IV addresses potential due process objections to this Note's proposal.


A. The Defendant Class Action

Though defendant class actions are today less common than their plaintiff counterparts, (10) the modern class action has its roots in collective actions against groups of defendants. (11) As early as the seventeenth century, courts permitted plaintiffs to join large numbers of defendants, (12) and Federal Rule of Civil Procedure 23, the class action rule we know and love today, grew out of that common law tradition. (13)

Scholars have highlighted the potential of the defendant class action, including to enforce civil rights and to sue private parties. (14) They have also observed the concentration of defendant classes in the context of constitutional challenges: over a third of all defendant classes comprise government officials certified to enjoin them from enforcing unconstitutional laws. (15) None of this literature, however, has contemplated a suit against a defendant class of private attorneys general.

B. Costs of Private Attorneys General

Constitutional challenges are often brought via injunctions. (16) The plaintiff alleges that she has engaged in or wishes to engage in constitutionally protected but statutorily barred activity. She sues the statute's enforcer--typically the attorney general--to obtain an injunction prohibiting the official from enforcing the law. (17) That injunction, if issued, binds only the attorney...

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Gale Document Number: GALE|A697327419