Class Actions and State Authority

As experiments with class actions spread to more distant shores, especially in countries of civil law backgrounds, a recurring question arises: what is the relation of the private class action to the customary regulatory power of the state? The response offered here is that, in fact, the class action stands in three different postures to state authority: as a direct challenge, as a complement, and as a rival. Recent class action cases in the U.S. are analyzed to examine these three functions and to give a distinct justification for each. At bottom, each justification turns on a contested commitment to a diversity of regulatory authority-—here termed “regulatory pluralism”-—that lends coherence to all three forms of interaction between the state and private authority, claiming the mantle of the “private attorney general.

Democracy’s Deficits

Barely a quarter century after the collapse of the Soviet empire, democracy has entered an intense period of public scrutiny. The election of President Donald Trump and the Brexit vote are dramatic moments in a populist uprising against the postwar political consensus of liberal rule. But they are also signposts in a process long in the making, yet perhaps not fully appreciated until the intense electoral upheavals of recent years. The current moment is defined by distrust of the institutional order of democracy and, more fundamentally, of the idea that there is a tomorrow and that the losers of today may unseat the victors in a new round of electoral challenge. At issue across the nuances of the national settings is a deep challenge to the core claim of democracy to be the superior form of political organization of civilized peoples. The current democratic malaise is rooted not so much in the outcome of any particular election but in four central institutional challenges, each one a compromise of how democracy was consolidated over the past few centuries. The four are: first, the accelerated decline of political parties and other institutional forms of popular engagement; second, the paralysis of the legislative branches; third, the loss of a sense of social cohesion; and fourth, the decline in state competence. While there are no doubt other candidates for inducing anxiety over the state of democracy, these four have a particular salience in theories of democratic superiority that make their decline or loss a matter of grave concern. Among the great defenses of democracy stand the claims that democracies offer the superior form of participation, of deliberation, of solidarity, and of the capacity to get the job done. We need not arbitrate among the theories of participatory democracy, deliberative democracy, solidaristic democracy, or epistemic democratic superiority. Rather, we should note with concern that each of these theories states a claim for the advantages of democracy, and each faces worrisome disrepair

Voter Welfare: An Emerging Rule of Reason in Voting Rights Law

For the first time in at least a generation, the central focus of voting rights law has returned to the issue of eligibility to cast a ballot and the act of voting itself. Unlike in prior generations, the fights over voting are centrally part of a partisan battle for electoral supremacy and are not organized around perpetuating the historic sub-ordination of minority populations—whatever the localized impact on minorities that the new voting rules may trigger. In the partisan environment, courts face claims of exclusion that only imperfectly map onto constitutional prohibitions of discrimina-tory intent or statutory protections of minority voting opportunity. Although only some of these challenges arise in jurisdictions that were formerly covered by Section 5 of the Voting Rights Act, the Supreme Court’s ruling in Shelby County further compels a new legal approach to these cases. This Article begins with the observation that, at least thus far, courts have been remarkably sympathetic to these new claims of voter exclusion, even without precise doctrinal categories for assessing them. Courts have fashioned parallel lines of case authority under the Constitution and the Voting Rights Act to shift evidentiary bur-dens to defendants to justify the need for election law overhaul shown to have an impact on the availability of the franchise. Voting rights law is moving from a rigid per se rule against certain established practices to a contextual assessment of the reason for the challenged practices. The Article presents this evolution as analogous to the emergence of a rule of reason to provide nuance to the overly rigid antitrust laws under the Sherman Act. Any such contextual approach needs an animating principle to guide a flexible judicial standard. In the antitrust context, that was the idea of consumer welfare. The question in the voting rights context is whether a corresponding notion of voter welfare can emerge