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Cohesive Class Actions

The Rule 23(b)(2) class action has taken many forms since it was added to the Federal Rules in 1966. At first, the provision was used largely to enforce the antidiscrimination objectives of the Civil Rights Era, but over time, subsection (b)(2) became a stock device to pursue injunctive and declaratory relief on a class-wide basis. Along with those developments have come attempts to limit the (b)(2) class, first with the excision of most money damages and individualized injunctions, and now with the requirement in the lower courts that the class be “cohesive.” Though the cohesiveness doctrine lacks a uniform definition, it is usually invoked with the same purpose: avoiding unconstitutional deprivations of class members’ claims. That justification is founded on two key errors. First, the doctrine does not meaningfully differentiate claims for money damages and claims for injunctive relief, only the former of which are properly subject to heightened due process limits contemplated by the cohesiveness requirement. Second, the doctrine both overestimates and mishandles any actual preclusion risks from (b)(2) litigation, limiting class relief under murky and counterintuitive standards despite a more sensible approach offered by existing preclusion law. These errors have combined to produce a strong presumption against heterogeneity in injunctive relief class actions, weakening an important tool for the private enforcement of civil rights. Fortunately, the Supreme Court has never required class actions for injunctive relief to be cohesive, permitting the lower courts to reconsider the operation of preclusion in modern class actions and recalibrate their requirements.