![]() ![]() ![]() ![]() An antisuit injunction can be enforced through contempt proceedings, 26 with penalties taking the form of fines or even imprisonment. 25īy contrast, an injunction stops a suit in its tracks. 23 Chilling, often cited as the core rationale for the insufficiency of a defensive posture against a uniform enforcer, 24 remains the key concern with dispersed enforcers. 22 Those potential costs have chilling effects. Defending against a suit imposes costs: money, time, and the risk that the rightsholder will actually be found not to have the right she purported to exercise and held liable under the law 21 - a cost that is amplified where the constitutionality of all or part of a law is uncertain. But a defensive posture is less appealing than an offensive one. The rightsholder can still raise the law’s unconstitutionality as a defense. 20 Thus, if a private attorney general were sued and enjoined from enforcing the law, no one else would be bound by that judgment. 19 Moreover, if an injunction issues against a rank-and-file civil servant, not even her fellow civil servants are bound by it. 18 Anyone not under the aegis of the official sued need not abide by the prohibition. 17 That injunction, if issued, binds only the attorney general, her inferiors, and her successors. She sues the statute’s enforcer - typically the attorney general - to obtain an injunction prohibiting the official from enforcing the law. 16 The plaintiff alleges that she has engaged in or wishes to engage in constitutionally protected but statutorily barred activity. Costs of Private Attorneys GeneralĬonstitutional challenges are often brought via injunctions. 15 None of this literature, however, has contemplated a suit against a defendant class of private attorneys general. 14 They have also observed the concentration of defendant classes in the context of constitutional challenges: over a third of all defendant classes comprise government officials certified to enjoin them from enforcing unconstitutional laws. Scholars have highlighted the potential of the defendant class action, including to enforce civil rights and to sue private parties. 11 As early as the seventeenth century, courts permitted plaintiffs to join large numbers of defen-dants, 12 and Federal Rule of Civil Procedure 23, the class action rule we know and love today, grew out of that common law tradition. Though defendant class actions are today less common than their plaintiff counterparts, 10 the modern class action has its roots in collective actions against groups of defendants. Finally, Part IV addresses potential due process objections to this Note’s proposal. Part III considers the viability of such a class under Federal Rule of Civil Procedure 23. The Note argues that a defendant class action is a viable mechanism for enjoining the enforcement of unconstitutional laws by private attorneys general.Īfter Part I sets forth some background, Part II examines the Article III implications of a defendant class action maintained against a class of private attorneys general. ![]() There is a well-trodden path to binding parties en masse: the class action. 8 The Court’s holding offers no avenue to challenge private enforcement of analogous laws, leaving an SB 8–shaped hole in the protection of all constitutional rights - from abortion to gun ownership and speech. Ultimately, the Supreme Court allowed a preenforcement suit to proceed, but only against certain government officials whom, it held, SB 8 did not preclude from suing. 6 But, in litigation as in war, an offensive posture is often preferred: antisuit injunctions mitigate the chilling effects of looming enforcement, even if that enforcement is unlikely to succeed. The law’s unconstitutionality is still a defense. Even if one “private attorney general” can be enjoined, every other potential private attorney general remains able to sue. 5 SB 8’s structure attempts to circumvent such antisuit injunctions. 4 Often, to prevent the enforcement of an unconstitutional law, a rightsholder sues the attorney general to enjoin her from enforcing it. 3 SB 8 grants private citizens the authority to sue to enforce the law. 2 But, more esoterically, it drew attention for its unusual enforcement mechanism. 1 The law, SB 8, garnered attention for its dramatic curtailment of abortion rights. In 2021, Texas enacted a new antiabortion law. ![]()
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