Reply To: Federal judge holds Colorado registry is punishment; violates Eighth Amendment

Robin Vander Wall
Robin Vander Wall

There is really no such animal as a “class action” in a case where one or more individuals are challenging the constitutionality of a statute. That’s because there’s no reason to establish a class if one decides to bring a facial challenge. A facial challenge presumes that the law is unconstitutional as it applies to everyone affected. But facial challenges are more difficult because it’s much harder to develop a record of harm. In an as-applied setting, it’s possible for the plaintiffs to demonstrate, in personal and particularized ways, the harm that has actually occurred to them. And where you have what are called “sympathetic” plaintiffs (plaintiffs whose stories of harm are likely to be persuasive to judge or jury), the chances of a positive outcome are greater.

Class actions, as a general rule, are rarely used anymore and are difficult to prosecute because the rules surrounding how a class is certified have tightened over the years. These days, you typically see class actions in cases where there is some sort of consumer fraud or product liability. But you never see them in claims challenging the constitutionality of a statute (although you will still see references being made to “class actions” by groups and individuals who don’t fully understand what they are talking about).