The Intersection of Constitutional Law and Civil Procedure: Review of Wholesale Justice—Constitutional Democracy and the Problem of the Class Action Lawsuit

Douglas G. Smith[*]

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Introduction

Much ink has been spilled over the class action device.  Commentators have thoroughly analyzed both the plain language and intent behind the federal rules authorizing the aggregation of claims in a single lawsuit as well as the policy implications of the class action in both theory and practice.  Seldom does a work break new ground in a field that has been plowed as often as that of class actions.  Martin Redish’s Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit is the rare exception.

In Wholesale Justice, Professor Redish provides a thorough analysis of the constitutional implications of the class action mechanism.  Unlike prior commentators and courts, which have focused mainly on limited constitutional issues arising in class action cases, Professor Redish’s analysis sweeps more broadly.  In the process, he brings to bear principles of constitutional law that have long lain dormant in the field of class action practice.  His insights demonstrate that more than mere practical or policy concerns arise when class action procedures are used.  Rather, they implicate—and often infringe—fundamental principles of constitutional law.

Mending Holes in the Rule of (Administrative) Law

Evan J. Criddle[*]

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The past decade has witnessed a surge of interest in Carl Schmitt’s controversial assertion that the rule of law inevitably bends under the demands of state necessity during national emergencies.  According to Schmitt, legal norms cannot constrain sovereign discretion during emergencies because “the precise details of an emergency cannot be anticipated” in advance.[1]  The sovereign must therefore possess unfettered discretion to determine both “whether there is an extreme emergency” and “what must be done to eliminate it.”[2]

Few legal scholars have embraced Schmitt’s theory of emergencies with the enthusiasm and sophistication of Adrian Vermeule, the John H. Watson, Jr. Professor of Law at Harvard Law School.  In an article published recently in the Harvard Law Review, Vermeule argues that American administrative law is fundamentally “Schmittian” in the sense that it permits federal agencies to operate outside the constraints of administrative procedure and meaningful judicial review during emergencies.[3]  Vermeule contends that the federal Administrative Procedure Act (APA) is replete with procedural exceptions, which generate “black holes”—zones where federal agencies are free to act outside the constraints of legal order.[4]  In addition, he suggests that federal courts manipulate flexible legal standards to accord heightened deference to federal agencies during national crises, transforming standards such as “reasonableness”[5] and “good cause”[6] into “grey holes”—legal devices which preserve the façade, but not the reality, of the rule of law.[7]  Far from criticizing these gaps in federal administrative law, Vermeule accepts black and grey holes as institutional inevitabilities, and dismisses proposals to extend the rule of law to all administrative action as a “hopeless fantasy.”[8]  

The Effect of Legal Professionalization on Moral Reasoning: A Reply to Professor Vischer and Professor Wendel

Michael Hatfield[*]

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Introduction

I am grateful to Professor Vischer and Professor Wendel for their responses to my essay, Professionalizing Moral Deference;[1] I learned a great deal from each piece.  I also appreciate their patience in enduring my finalization of the essay and am indebted to them both for their personal indulgence and intellectual stimulation.

The aim of my earlier essay was to open a new discussion of lawyers and morality through my reflections on the so-called “Torture Memo.”[2]  Specifically, my essay focuses on the effect of legal training and practice on lawyers’ moral reasoning.[3]  It explores the ways in which we, as lawyers, “come to engage in . . . strategic reasoning,” and express “concern[] about [the] cost to our moral reasoning skills.”[4]  The core argument is that “lawyers are professionalized in a manner that undermines moral reasoning skills,”[5] and that “[t]o suggest that we who are officers of the American judicial system are deficient in moral reasoning is to suggest a deep problem.”[6]  To address this deep problem, I suggest lawyers accept personal moral accountability for professional projects undertaken, idealizing those lawyers who choose their professional projects on personal moral grounds.[7]  Thus, I believe lawyers—such as the authors of the Torture Memo—are subject to criticism on grounds of morality and not merely professional technique.

The responses of Professor Vischer and Professor Wendel, though thought-provoking, do not address my focus on the effect of legal training and practice on lawyers’ moral reasoning.  Instead, the responses of Professor Vischer and Professor Wendel focus on the role of moral reasoning in legal reasoning.