Cardozo Law Review
Abstract
This Article suggests a new focus for Article III standing in public interest class actions brought under Federal Rule of Civil Procedure 23(b)(2). Rule 23(b)(2) is a vital tool for protecting communities from civil rights abuses. It is also receiving new attention in the wake of Trump v. CASA, the Supreme Court’s decision in June 2025 that severely restricted the use of nationwide injunctions. Rule 23(b)(2) cases seek only injunctive relief and are designed to permit individuals to pool their adjudicative power to prevent constitutional violations by government officials. A complicated web of doctrinal entanglements, including a heightened requirement for standing to obtain an injunction, often prevent them from obtaining the relief they seek.
The initial instinct may be to analyze standing in (b)(2) cases by focusing only on the future risk of harm to the class representative, as if the litigation were not a class action. I argue that this is neither required nor justified. In (b)(2) cases, the focus can and should be on harms to the class rather than the class representative. Forcing class representatives to prove they will personally face a nonspeculative risk of harm absent an injunction ignores the role of the class in adjudicating group rights and communal harms. That role merits a relaxed and refocused standing inquiry rooted in the rights of the class as a whole and the unique procedural and doctrinal structure of class actions. I conclude by offering suggestions for plaintiffs on how to frame, sequence, and fit their claims to this new prudential approach to maximize their chances of obtaining class certification and relief on the merits.
Disciplines
Civil Procedure | Law | Public Interest
Recommended Citation
Sharon Brett,
Article III Standing and the Public Interest Class Action,
47
Cardozo L. Rev.
837
(2026).
Available at:
https://larc.cardozo.yu.edu/clr/vol47/iss3/1