Can habeas corpus cases proceed as class actions? The Supreme Court has never squarely answered that question, even in cases where lower courts certified habeas classes. But the Trump Administration's wholesale push to expel noncitizens has forced the question to the center of modern civil rights litigation. And at least two Justices have expressed deep skepticism. This Article is the first modern work to consider the habeas class action thoroughly. Our conclusion: Applicable rules and statutes permit class treatment in appropriate habeas cases, when representative adjudication promotes efficiency and fairness. While the Supreme Court has reserved the question, practice in the lower federal courts is uniform. We review and report on sixty years of habeas class adjudication in lower courts, starting with the 1966 introduction of Rule 23(b)(2) for classes seeking injunctive and declaratory relief. Our standout finding is that half of the geographic circuits have express precedent in favor of habeas class treatment, and the remainder favor it in practice. That is, every single federal appellate jurisdiction accepts habeas class treatment. That decisional history figures into how courts should analyze applicable procedure in habeas cases. If a Federal Rule of Civil Procedure "conforms" to a history of habeas practice, then it applies of its own force. Courts also can - and do - look to the content of useful but "nonconforming" rules to craft analogous habeas procedure under other statutory authority, including the All Writs Act and the pertinent habeas corpus statute (28 U.S.C. & sect; 2243). Whether Rule 23 is "conforming," and therefore applies of its own force, is a close question. Whether courts can apply the content of Rule 23 by force of other authority is not: Habeas cases with common issues are amenable to class adjudication. In appropriate habeas cases, class treatment aligns with the purposes of representative litigation. Habeas classes can satisfy Rule 23 requirements, promote efficient adjudication of common issues, avoid inconsistent judgments, and defeat gamesmanship by defendants in more fragmented adjudication. And class treatment ensures adequate legal representation for vulnerable plaintiffs who would otherwise be unable to meaningfully assert their rights in court.
By standard accounts, there are fifty-four constitutions across the federal, state, and territorial governments of the United States. But in fact, there are 230 other governmental constitutions that currently govern peoples and territories within the United States. These constitutions not only flow from a sovereignty that existed prior to the United States but also came out of a legal movement that asserted its independence from both the U.S. Constitution and state constitutions. This Article tells the story of these constitutions - the constitutions of Native nations. Having existed for over two centuries with an archive of thousands of constitutional documents and amendments, tribal constitutions have been left out of the narratives of American constitutional history while being obscured within the fields of American constitutional law and federal Indian law. This Article corrects these oversights and calls for the recognition of a tradition of "Indigenous constitutionalism" in the United States. This Article's aims are both theoretical and historical. On one hand, it conceptualizes Indigenous constitutionalism as a distinct and shared constitutional practice through which Native nations claim and exercise self-governance while embedded in the wider constitutional - and colonial - landscape of the United States. On the other hand, this Article draws Indigenous constitutionalism's features from the two-hundred-year history of tribal constitutions. It explores, for the first time, three major eras of tribal constitutional development: the first constitutions during the early nineteenth-century period of Indian Removal, the explosion of constitutions under the Indian Reorganization Act in the early twentieth century, and the movement for tribal constitutional reform that has stretched from the late twentieth century to today. But this Article also brings theory and history together to rethink the prevalent narratives surrounding tribal law, federal Indian law, and American constitutionalism. Indigenous constitutionalism reveals the fundamental and persistent questions around which a tribal constitutional law framework can be constructed. It also revises the origin stories of federal Indian law, demonstrating that the field did not coalesce in isolation from tribal law but was actually cocreated with tribal constitutions. Finally, by placing tribal constitutions into conversation with other American charters, Indigenous constitutionalism disrupts and expands the category of constitutionalism itself. This Article demonstrates that tribal constitutions - unique among American constitutions - showcase how these documents can appear in many forms, function as external-facing declarations of sovereignty, and exist alongside other forms of fundamental law.
