"Much to Gain and Nothing to Lose" Implications of the History of the Declaratory Judgment for the (b)(2) Class Action* Andrew Bradt** Whether a class action should be certified under Rule 23(b)(2) of the Federal Rules of Civil Procedure remains a troubling problem for both courts and commentators, especially if such a class asks to be certified, in whole or part, for declaratory relief.' Courts seeking guidance will find little from the federal rulemakers, and even less from the Supreme Court, which has noted its concerns about mandator' class actions but has offered little in the way of doctrine. A phalanx of academics has joined the Court in expressing significant reservations about the due process rights of absent members of mandatory classes because they typically are denied notice and the right to opt out of the litigation. 3 Despite these fears, Rule 23 does provide for certification of classes for final injunctive or Deepest thanks to Stephen B. Burbank, whose vast knowledge and insightful critique have been crucial to this project since its inception. Thanks also to all those who read drafts and provided helpful comments, particularly David R. Dempsey, Martin A. Kurzweil, R. Adam Lauridsen, and Alexis J. Loeb. Finally, thanks to my family for their constant support and encouragement. ** Law Clerk to the Honorable Patti B. Saris, United States District Judge for the District of Massachusetts; J.D., Harvard Law School (2005); A.B., Harvard University (2002). 1. See generally Linda S. Mullenix, No Exit: Mandatory Class Actions in the New Millennium and the Blurring of Categorical Imperatives, 2003 U. CHI. LEGAL F. 177 (2003). 2. See Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121-22 (1994); see also Molski v. Gleich, 318 F.3d 937, 948 (9th Cir. 2003) ("[W]e recognize the Court's growing concerns regarding the certification of mandatory classes when money damages are involved."); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411 n.3 (5th Cir. 1998) (recognizing that Ticor Title "casts doubt on the proposition that class actions seeking money damages can be certified under Rule 23(b)(2)"). 3. See John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 COLUM. L. REv. 370, 372 (2000); Samuel Issacharoff, Preclusion,Due Process, and the Right to Opt Out of Class Actions, 77 NOTRE DAME L. REv. 1057 (2002); Mullenix, supra note 1. HeinOnline -- 58 Ark. L. Rev. 767 2005-2006 768 ARKANSAS LAW REVIEW [Vol. 58:767 "corresponding declaratory relief' in many instances, in some cases including prayers for money damages. This article suggests that courts seeking guidance in these (b)(2) certification disputes should consider turning to a literature often ignored: the history of the declaratory judgment itself. The history of declaratory relief, especially the writings of its most prominent advocate, Professor Edwin Borchard, reveals principles that could be profitably applied to class certification issues today. The history of the declaratory judgment demonstrates that those who advocated it thought they were providing courts with more flexibility to settle disputes outside the traditional remedial structure. In brief, broader recognition of this philosophy would allow courts dealing with class certification issues to feel more free to certify entire classes, or some class questions, under Rule 23(b)(2). Although most courts deciding whether to certify a (b)(2) class action for declaratory relief cite the text of Rule 23 and its accompanying advisory committee's note, few courts examine the history of the Declaratory Judgments Act 5 or Federal Rule of Civil Procedure 576 for guidance. Commentators who reference this history generally assume that a declaratory judgment is only appropriate for claims seeking preventive relief-when parties seek guidance from the court on how to act before an alleged wrong has been committed-as opposed to cases determining liability for past wrongs. 7 This perception is based on a misreading of the history of declaratory relief in American civil procedure. Writings of the framers of American declaratory judgment statutes demonstrate that declaratory relief is appropriate for numerous purposes other than to obtain relief before a wrong is committed. Of course, it is understandable that the history of the declaratory judgment in America has been somewhat ignored in the Rule 23 context. After all, Rule 23 does not incorporate the entirety of the Declaratory Judgments Act or Rule 57, and the 4. FED. R. Civ. P. 23 advisory committee's note. 5. 28 U.S.C. § 2201 (2000). 6. FED. R. CIv. P. 57. 7. See Mullenix, supra note 1, at 221 (claiming, without citation, that "[n]either declaratory judgments nor injunctions were intended to provide judicial determinations on ultimate liability issues"). HeinOnline -- 58 Ark. L. Rev. 768 2005-2006 20061 DECLARA TORY JUDGMENTS 769 contours of Rule 23 are defined by its own extensive history and jurisprudence. Moreover, the term "corresponding declaratory relief," as mandated by the text of Rule 23,8 may, and I will argue, does place limitations on the sorts of declaratory relief available in the class action context. Even with these caveats in mind, the history of the American declaratory judgment provides insight into current problems surrounding requests for certification of classes for declaratory relief under Rule 23(b)(2). Those who agitated most strongly for the adoption of state and federal declaratory judgment statutes in the first third of the twentieth century did so in an attempt to provide courts with a new procedural tool to settle disputes where they might not otherwise have been able to act, and to allow courts the opportunity to apply a milder remedy when the parties requested it, or when it would help resolve the controversy. 9 As Professor Borchard, the remedy's foremost proponent, noted in the preface to his comprehensive treatise on declaratory relief: "A better realization of [courts'] social function in the community should enable and inspire them to aid in the avoidance of purposeless technicalities which so frequently enmesh the quest for substantive justice in the bogs of procedure." 10 When dealing with declaratory relief in the class action context, I will argue that this quotation from Borchard should be a court's lodestar. In particular, I will apply Borchard's analysis to several (b)(2) certification dilemmas, demonstrating how a more flexible use of declaratory relief, coupled with a strong concern for due process rights of absentees, might produce consistent and sensible results. And, in some instances, when a lack of class certification may render a statute ineffective and unenforceable, I will argue that broader use of certification for declaratory relief would provide a solution. I will begin in Part I by sketching out the early history of the broad adoption of declaratory relief in the United States, culminating in the passage of the federal Declaratory Judgments 8. FED. R. Civ. P. 23(b)(2). 9. Edson R. Sunderland, The Courts as Authorized Legal Advisers of the People, 54 AM. L. REV. 161, 171 (1920). 10. EDWIN BORCHARD, DECLARATORY JUDGMENTS viii (2d ed. 1941) [hereinafter BORCHARD, DECLARATORY JUDGMENTS]. HeinOnline -- 58 Ark. L. Rev. 769 2005-2006 770 ARKANSAS LAW REVIEW [Vol. 58:767 Act in 1934. In this section, I will focus on the case for using the declaratory judgment for "preventive relief," both because this was central to the argument for the Act's passage, but also because it was the most controversial element of declaratory relief. After examining that history, I will turn in Part II to the less-often discussed purposes of the declaratory judgment, namely to provide a milder remedy to litigants and to be strategically combined with other forms of relief to help resolve controversies. These lesser-known aspects of the case for declaratory relief provide insight into the (b)(2) class action problem. In Part III, I will examine the class action problem in earnest, focusing on the unique interests involved in the question of whether to certify a class action under (b)(2) and the interesting history behind the Rule's peculiar language "corresponding declaratory relief." Parts IV and V will apply the writings of those who advocated most strongly for declaratory relief to several class action problems. Part IV, specifically, will assess: (1) classes seeking to be certified for only declaratory relief, but which could have sought money damages, and (2) classes seeking (b)(2) certification for both declaratory relief and money damages. Part V will deal with the related but distinct problem of classes seeking certification for declaratory relief and money damages under (b)(2) when injunctive relief is unavailable, thus testing the limits of the language "corresponding declaratory relief' in Rule 23. In this last category, I will focus on litigation under the federal Fair Debt Collection Practices Act ("FDCPA"),"I a statute which could be enforced more effectively if more classes were certified following a Borchardian approach. Any court dealing with a mandatory class certification question must keep the due process interests of absent plaintiffs at the forefront of its thoughts. Nevertheless, I suggest that the history of declaratory relief counsels a more flexible use of (b)(2) certification, either for entire classes or particular issues in class litigation. While any application of decades-old writings to a modem procedural context is somewhat imprecise, the 11. 15 U.S.C. § 1692 (2000). HeinOnline -- 58 Ark. L. Rev. 770 2005-2006 2006] DECLARA TORY JUDGMENTS 771 original principles of declaratory relief could provide courts with much needed guidance in this very difficult area. I. THE HISTORY OF THE DECLARATORY JUDGMENT IN THE UNITED STATES Although the concept of declaratory relief dates back to Roman law, it has existed in its current sweeping form in American civil procedure only for the last eighty or so years, mostly thanks to the agitation of Professors Edwin Borchard and Edson Sunderland.' 2 The influence of Borchard and Sunderland's writings and advocacy ensured passage of the federal Declaratory Judgments Act in 1934.