Habeas Class Actions

Can habeas corpus cases proceed as class actions? The Supreme Court has never squarely answered that question, even in cases where lower courts certified habeas classes. But the Trump administration’s wholesale push to expel noncitizens has forced the question to the center of modern civil rights litigation. And at least two Justices have expressed deep skepticism. This Article is the first modern work to consider the habeas class action thoroughly. Our conclusion: Applicable rules and statutes permit class treatment in appropriate habeas cases, when representative adjudication promotes efficiency and fairness.

While the Supreme Court has reserved the question, practice in the lower federal courts is uniform. We review and report on sixty years of habeas class adjudication in lower courts, starting with the 1966 introduction of Rule 23(b)(2) for classes seeking injunctive and declaratory relief. Our standout finding is that half of the geographic circuits have express precedent in favor of habeas class treatment, and the remainder favor it in practice. That is, every single federal appellate jurisdiction accepts habeas class treatment.

That decisional history figures into how courts should analyze applicable procedure in habeas cases. If a Federal Rule of Civil Procedure “conforms” to a history of habeas practice, then it applies of its own force. Courts also can—and do—look to the content of useful but “non-conforming” Rules to craft analogous habeas procedure under other statutory authority, including the All Writs Act and the habeas corpus statute (28 U.S.C. § 2243). Whether Rule 23 is “conforming,” and therefore applies of its own force, is a close question. Whether courts can apply the content of Rule 23 by force of other authority is not: habeas cases with common issues are amenable to class adjudication.

In appropriate habeas cases, class treatment aligns with the purposes of representative litigation. Habeas classes can satisfy Rule 23 requirements, promote efficient adjudication of common issues, avoid inconsistent judgments, and defeat the gamesmanship available to defendants in more fragmented adjudication. And it ensures adequate legal representation for vulnerable plaintiffs who would otherwise be unable to meaningfully assert their rights in court.