May 12, 2010
Elena Kagan's Civil Procedure Paper Trail
Readers interested in Supreme Court nominee Elena Kagan's views on civil procedure might want to take a look at her student note: Certifying Classes and Subclasses in Title VII Suits, 99 Harv. L. Rev. 619 (1986). (See SCOTUSblog for a more complete list of her publications.)
General Kagan's note examines the then-prevailing approaches to determining whether an employment discrimination class action under Title VII complies with FRCP 23(a). She concludes:
"Each of the traditional approaches to certification of title VII classes fails to take into account important values. The unity-of-interest approach slights the value of enforcing substantive law; the across-the-board approach neglects the value of observing procedural norms. A proper approach to the certification of title VII classes will attempt to accommodate these values and to mitigate the conflict between them. No perfect reconciliation will be possible: the recognition of the one value will inevitably burden to some degree the other. The task for courts is to find the approach that will best accommodate the values at stake and thereby best protect the rights of victims of discrimination. The subclassification of broad title VII classes provides that approach. Subclassification adequately protects absent class members and yet responds to the classwide and systemic nature of employment discrimination. The technique thus makes the class action device a reliable vehicle for the assertion and vindication of minority rights."
For those interested in what the nominee was like as a civil procedure professor, see this post on Above The Law ("Elena Kagan and Me: One Semester of Civ Pro With the New SCOTUS Nominee").