Socially-Driven Class Actions: The Legacy of Briggs

By Atiram, Barak | Texas Journal on Civil Liberties & Civil Rights, Fall 2017 | Go to article overview

Socially-Driven Class Actions: The Legacy of Briggs


Atiram, Barak, Texas Journal on Civil Liberties & Civil Rights


I. THE EARLY DEVELOPMENT OF CLASS ACTIONS....................3

II. THE MAIN CHANGES TO RULE 23 BETWEEN 1938 AND 1966..........6

III.SOCIAL MOTIVATIONS: THE MAIN GOALS OF THE 1966 COMMITTEE....................8

IV. STATUS AND THE STRUGGLE AGAINST RACIAL SEGREGATION......11

V. BETWEEN LAW-IN-BOOKS AND LAW-IN-ACTION: STRATEGIC USE OF THE SOCIAL SCIENCES....................14

VI. ACKNOWLEDGING SOCIAL REALITIES: THE HISTORICAL CONTEXT OF BRIGGS....................18

VII. ACKNOWLEDGING STATUS: PROCEDURAL LAW IN BRIGGS..........21

A. Grassroots Empowerment: Moving the Victim into Action. 22

B. Inner Conflicts, Gradual Changes, and Compromises..........23

C. Adversarial Equality and Class Suits....................24

D. Courts' Legitimacy....................25

VIII. CONCLUDING INSIGHTS....................26

Judge Waring's dissent in Briggs v. Elliott was the first judicial opinion to reject Plessy v. Ferguson and declare that racial segregation in public schools violated the Equal Protection Clause of the Fourteenth Amendment.1 The reasoning behind Waring's dissent clearly had an ef- feet on the court's decisions in Brown, and in that sense, it played an active part in opening the floodgates for class actions dealing with racial segregation and human rights violations. From a procedural standpoint, Briggs, just like the cases consolidated into Brown, was filed as a class action, and treated by the court as preclusive, despite falling into the 1938 category of "spurious class actions."2

The success of civil rights class actions in the 1950s led to growing attacks on their legal validity, and the role of the National Association for the Advancement of Colored People (NAACP) as their leading initiator. Both the success of civil rights class actions and the threats against that success had a profound impact on the deliberations of the 1966 advisory committee, which drafted Federal Rule of Civil Procedure 23(b)(2) regarding mandatory class actions.3 Hoping to protect civil rights class actions, the committee moved away from James Moore's old categories, and guided by its legendary reporter, Benjamin Kaplan, decided that civil rights class actions like Briggs, asking for declaratory relief, would bind absent parties without notice, and without giving class members an opportunity to opt out.4

This presents a perplexing socio-legal dilemma. Human rights violations can be constitutionally challenged by an individual lawsuit, which can eventually affect every person similarly situated. It is therefore unclear what advantages a representative suit filed on behalf of a large, and mostly passive, crowd offers-this seems to render class actions redundant. Yet Briggs, and the cases consolidated into Brown, were quite different in both form and function from the typical modern class action.5 At their core, the civil rights class actions of the 1950s successfully found a way to integrate the ideas, thoughts, feelings, and active participation of the community with the legal proceedings.6

While existing accounts regarding the evolution of class actions in civil rights litigation focus on the legal advantages of class actions in overcoming various legal obstacles, like mootness claims, this article shines a new light on class actions, by exploring the path of civil rights litigation leading to Brown. Focusing on the social-sciences strategy which shaped both the legal ideas and legal reasoning in Briggs and Brown, this article maintains that the desire to bridge the gap between "Law in Books" and "Law in Action" inevitably influenced and molded civil procedure. The NAACP went to great lengths in order to bring together social realities and judicial rule making. With the help of testimonies, research, and interviews with leading social sciences experts like David Krech, Horace McNally, and Kenneth Clark, the NAACP challenged the "Separate but Equal" doctrine, presenting the court with the far-reaching repercussions of racial segregation. …

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