Monday, January 4, 2016

Wall Street Journal References Prof. Zimmerman's Amicus Brief in Class Action Battle

Professor Adam Zimmerman was one of two primary authors for an amicus brief written on behalf of top federal court, complex litigation and administrative law scholars from around the country. The brief advances arguments made in article written in the Columbia Law Review, The Agency Class Action, 112 Colum. L. Rev. 1992 (2012). It was referenced in a Wall Street Journal story about the case.

Amici submit this brief to explain the use of aggregate procedures in non-Article III courts. In contrast to the decision below, a wide variety of non-Article III courts have concluded that they can, and should, in appropriate circumstances, aggregate claims under statutory authority parallel to that which Congress has provided to the Court of Appeals for Veterans Claims (CAVC). See Appendix A (collecting aggregation rules). Amici thus make three points in support of Claimant-Appellant Conley F. Monk, Jr.’s position that the CAVC may use either class actions or other informal procedures to aggregate cases.

First, Congress has the power, within constitutional limits, to create special courts whose judges do not receive the salary and tenure protections described in Article III of the Constitution. When doing so, Congress generally grants “non-Article III” courts broad discretion to craft procedures they deem necessary and appropriate to adjudicate the cases and claims that come before them.

Second, non-Article III courts employ a wide range of procedures to aggregate cases and claims at both the “trial” and “appellate” levels. For example, non-Article III courts have adopted rules that permit joinder, consolidation, and class actions. And even in the absence of a specific rule, non-Article III courts have aggregated particular cases and claims. The fact that non-Article III courts deploy a wide range of aggregation procedures reflects an appropriate and effective division of labor between Congress and the courts. While Congress creates and defines the jurisdiction of non-Article III courts, the courts apply their expertise to determine the procedures necessary and best-suited to exercise that jurisdiction.

Third, non-Article III courts use aggregation to promote efficiency, consistency, and fairness. Aggregation enables courts to pool information about common and recurring problems efficiently, fosters more consistent outcomes in similar cases than is possible through case-by-case adjudications, and improves access to legal and expert assistance for parties who have limited resources and whose claims may appropriately be pursued through collective mechanisms.

Below, Amici provide examples of the use of aggregation by non-Article III courts. As Amici detail, aggregation is especially useful when, as here, a party seeks declaratory or injunctive relief in response to an alleged institutional or system-wide harm.

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