A. Individualized Constitutional Rights
A series of constitutional rights remain highly individualized and therefore difficult to assert in damages class actions that require commonality and predominance. The Supreme Court individualizes rights in a variety of ways: regarding the definition of the right violation itself, or regarding other elements of the right such as causation, or regarding defenses that the government might raise to rebut presumptions of a violation. The Court may do so to simply make it difficult to obtain a remedy for a violation of a right except in egregious cases. The Court may view the right as requiring a case-specific inquiry, based on text or purpose or other interpretative methods. The Court may view a brighter-line rule as unduly burdensome on government. In contrast, the Court may seek to create brighter-line to give notice to government. As Fred Schauer has prominently developed, general rules may be advantageous for a host of reasons. (101) They more readily protect the interests of the broader public. They may be more difficult to evade and may simplify proof. They provided clearer notice. On the other hand, they may be less adaptable and flexible. Difficult substantive choices all impact the scaling of a right and therefore the ability to pursue aggregate remedies. It would be far beyond the scope of this piece to comprehensively describe differences as to the individualized or aggregated definitions of various constitutional rights. Instead, I provide a set of particularly illustrative examples to show differences in the Court's approach to the substance of the constitutional right and the impact on aggregate litigation.
1. The Eighth Amendment
Requirements that a plaintiff satisfy a showing of subjective government intent to violate the constitution render the inquiry a highly individualized one. In Eighth Amendment cases involving prison conditions, the Court has ruled that plaintiff must satisfy both an objective prong and a subjective prong that the government official (usually a prison guard) acted with "deliberate indifference," under the circumstances. (102) Eighth Amendment claims by prisoners commonly involve allegations concerning prison conditions such as provision of adequate medical care, (103) personal security from violence by other inmates, excessive force by corrections officers (which requires a showing of an "unnecessary and wanton infliction of pain'), (104) and punitive measures taken against prisoners.
The Court in Wilson v. Seiter (105) specifically rejected the argument advanced by the plaintiffs that there should be a different showing in a case alleging systemic violations and not a single act. The plaintiffs had hoped to avoid the need to show that officials acted with a particular malicious mental state, but rather to rely on evidence of systemic violations. The Court held that there was no difference between the need to show an individual official's state of mind in a "one-time" versus a "systemic" violation, arguing that the word "punishment" in the Eighth Amendment implies a mental state that must be present to make out a claim. (106) However, the Court also cited to policy reasons supporting individualization of the inquiry, where in particular cases there may be "composite conditions" that resist "pigeonholing." (107) The Court explained that
[u]ndoubtedly deprivations inflicted upon all prisoners are, as a
policy matter, of greater concern than deprivations inflicted upon
particular prisoners, but we see no basis whatever for saying that
the one is a "condition of confinement" and the other is not--much
less that the one constitutes "punishment" and the other does not.
As a result, plaintiffs attempting to bring a class action concerning prison conditions must show that officials engaged in "deliberate indifference," both showing that the conditions are objectively unconstitutionally inadequate and subjectively manifesting deliberate indifference through an "unnecessary and wanton infliction of pain. …