Symposium – Executive Overreach and the Rule of Law in Trump II

How a Rule 23(b)(2) Class Action Could Save Law Firms from Trump

President Trump has so far issued five executive orders attacking leading law firms, 1 See, e.g., Exec. Order No. 14230, 90 Fed. Reg. 11781 (Mar. 6, 2025). even though he has conceded that these firms have done “nothing wrong.” 2 Steve Benen, As the White House’s Campaign Against Law Firms Continues, Trump Says a Bit Too Much, MSNBC: MaddowBlog (Apr. 9, 2025, 9:01 AM PDT), https://perma.cc/‌BF6F-EVBU. Trump stated: “Have you noticed that lots of law firms have been signing up with Trump? $100 million . . . . [T]hey give me a lot of money considering they’ve done nothing wrong.” Id. These orders—which aim to disrupt firms’ relationships with clients, terminate government contracts, revoke lawyers’ security clearances, and prevent law firm employees from entering federal buildings—are an “unprecedented attack on . . . foundational principles.” 3 Perkins Coie LLP v. U.S. Dep’t of Just., No. 25-716, 2025 WL 1276857, at *2 (D.D.C. May 2, 2025). They exceed the President’s powers. They violate the First, Fifth, and Sixth Amendments. And they represent a grave threat to the legal profession’s integrity and independence.

Although the orders’ illegality is plain, challenging them takes real courage. If a law firm in Trump’s crosshairs fights back—if the firm does not contort itself to get in the Administration’s good graces—the firm’s clients may see the firm as “persona non grata when it comes to working with the Trump [A]dministration.” 4 Aysha Bagchi, An Attack on the Constitution? Why Trump’s Moves to Punish Law Firms are Causing Alarm, USA Today (Apr. 5, 2025, 2:01 AM PDT), https://perma.cc/‌8JRM-7W9M. Clients, wanting a law firm with an amicable relationship with the executive branch, might take their business elsewhere. 5 See Kathryn Rubino, Will Perkins Coie’s Clients Obey in Advance?, Above The Law (Mar. 14, 2025, 10:45 AM), https://perma.cc/‌BB44-MBQS (“People know if they work with Perkins Coie, they will earn the displeasure of the White House.”). To be sure, there is “little evidence” so far that any of the four firms has suffered significant financial blowback. Jack Newsham & Jacob Shamsian, Donald Trump Went After One of America’s Top Law Firms. Its Decision to Fight Back Took Just Two Hours., Bus. Insider (Apr. 27, 2025, 3:00 AM PT), https://perma.cc/‌4C4S-VL4W. In fact, Microsoft recently dropped Simpson Thacher, a firm that cut a deal with Trump, for Jenner & Block. Noam Scheiber, Microsoft Drops Law Firm that Made a Deal with Trump from a Case, N.Y. Times (updated May 4, 2025), https://perma.cc/‌7HT2-9FYH. For further discussion of how certain firms that capitulated have lost both business and person power, see notes 23-25 and accompanying text below.

Given these incentives, it’s perhaps unsurprising that nine of the country’s most powerful law firms have already surrendered to Trump without a fight. 6 Ryan J. Reilly, Furor over Trump’s Targeting of Law Firms Heats Up with Court Fight and Ad Campaign, NBC News (Apr. 24, 2025, 3:00 AM PDT), https://perma.cc/‌RCS9-9KST (“Nine firms have reached deals with Trump: A&O Shearman; Kirkland; Latham & Watkins; Simpson Thacher; Cadwalader; Milbank; Skadden; Willkie; and Paul Weiss.”). Some did so preemptively, even before he issued orders against them.

Under the terms of their surrender, these nine firms have pledged about $1 billion in free legal services to Trump-favored causes—and effectively declared themselves closed to millions of people unlawfully harmed by Trump policies. 7 See Michael S. Schmidt, Maggie Haberman, Matthew Goldstein, Jessica Silver-Greenberg, Ben Protess & William K. Rashbaum, Law Firms Made Deals with Trump. Now He Wants More from Them, N.Y. Times (Apr. 16, 2025), https://perma.cc/‌G4WT-9CJ9. Soon, these firms—staffed by some of the most well-resourced lawyers in America—may square off against public schools with inclusive policies, state and local governments fighting climate change, public health authorities promoting vaccination, and those seeking to hold police officers accountable for violations of their civil rights. 8 See, e.g., Exec. Order No. 14288, 90 Fed. Reg. 18765 § 2 (Apr. 28, 2025).

Yet, though there are clear reasons to cave, four targeted firms—Perkins Coie, WilmerHale, Jenner & Block, and Susman Godfrey—have fought back. These firms have gone to court to challenge Trump’s unconstitutional actions, and, so far, they’ve prevailed. 9 For the fact these firms have prevailed, see Steve Benen, 4 Law Firms Targeted by Trump Extend Their Winning Streak Against White House, MSNBC: MaddowBlog (Apr. 16, 2025, 5:58 AM PDT), https://perma.cc/‌Z4YM-8LJY. Other firms have displayed their resistance, by opting to represent these firms. They include Williams & Connolly (Perkins Coie); Cooley (Jenner & Block); Clement & Murphy (WilmerHale); and Munger, Tolles, & Olson (Susman Godfrey). Many additional law firms, albeit few in the American Lawyer’s ranking of the top 100 firms by revenue, signed an amicus brief filed on behalf of Perkins Coie. For discussion, see note 11 below. Judges appointed by both Democratic and Republican Presidents have found, to quote one ruling, that these executive orders represent “viewpoint discrimination, plain and simple.” 10 Perkins Coie LLP, 2025 WL 1276857, at *38; see also, e.g., Wilmer Cutler Pickering Hale & Dorr LLP v. Exec. Off. of the President, No. 25-CV-917, 2025 WL 946979, at *2 (D.D.C. Mar. 28, 2025) (granting temporary restraining order).

But the broader threat still exists. Trump might target additional firms at any moment. And this uncertainty is itself a problem, as firms, worried about angering the Administration, have an incentive to trim their sails. 11 It appears, for instance, that firms, eager to stay in Trump’s good graces, are dialing back pro bono assistance. E.g., Matthew Goldstein & Jessica Silver-Greenberg, Some Giant Law Firms Shy Away from Pro Bono Immigration Cases, N.Y. Times (May 24, 2025), https://perma.cc/‌23H4-NYYZ; Ryan Lucas, Trump Attacks on Law Firms Begin to Chill Pro Bono Work on Causes He Doesn’t Like, NPR (Apr. 13, 2025, 5:00 AM ET), https://perma.cc/‌6B8H-LW5Y. Another arresting datapoint is that, when it came time to support those challenging the unlawful executive orders, “not a single top 20 firm by revenue” chose to sign an amicus brief for fear that doing so “would draw Mr. Trump’s ire and cost them clients.” Ben Protess, More than 500 Law Firms Back Perkins Coie in Fight with Trump, N.Y. Times (Apr. 4, 2025), https://perma.cc/‌R9FK-J2B9. Indeed, frightening evidence of this self-censorship is already starting to accumulate. What’s more, because the deals Trump has forged don’t have legal force, even firms that caved aren’t off the hook. 12 See Schmidt et al., supra note 7 (explaining that the “deals did little to insulate” the capitulating firms). Finally—and as we explain in depth below—the judicial victories the four firms have notched may prove pyrrhic. Even if a firm challenges a Trump order and prevails, clients, hoping for an amicable relationship with the executive branch, may still take their business elsewhere. 13 See Rubino, supra note 5. Partners representing those clients might do the same. 14 Justin Henry & Roy Strom, Judge Blocks Trump Order Targeting Perkins Coie, Clients (2), Bloomberg L. (Mar. 12, 2025, 12:45 PM PDT), https://perma.cc/‌G5AA-LHJZ (“As clients leave [Perkins Coie], its own lawyers could follow.”). As we discuss below, the dynamics of partner departures may be complex. See infra notes 20-21, 23, 25 and accompanying text.

In short, even successful individualized litigation may fail to arrest Trump’s profound threat to the American legal profession’s independence and integrity. Fortunately, there’s a simple and powerful way for law firms to fight back. Below, in Part I, we analyze the knotty collective action problem that law firms face. In Part II, we explain how, by filing a Rule 23(b)(2) class action, a single law firm could solve this collective action problem, benefiting the legal profession en masse.

I. The Current Collective Action Problem

Law firms face a classic collective action problem. All would benefit if they could commit to resisting Trump’s attack. But if too few resist, each individual firm has an incentive to cave.

This collective action problem is a version of game theory’s famous prisoner’s dilemma. There, two thieves are arrested and held separately, without the ability to communicate. Each prisoner is offered a deal to confess and rat out the other—call this the “fink” action. If neither finks, both will receive a relatively light prison sentence; if both prisoners fink, each will receive a mid-length prison sentence. If one finks and the other doesn’t, the finker will receive the lightest possible sentence, but the one who refuses to fink will receive the maximum sentence. Famously, each individual prisoner’s best response is to fink (i.e., capitulate), even though both prisoners would benefit if both would resist. 15 To be precise, each prisoner has what is called a dominant strategy to fink, which means that each individual prisoner does better by finking than not. For a discussion of this canonical game, see Robert Gibbons, Game Theory for Applied Economists 2-5 (1992). A large portion of game theory literature considers whether and when this result can be reversed in repeated iterations of the standard prisoner’s dilemma game. For a summary, see id. at 82-99.

To see how this dilemma captures the dynamics of today’s law firms, just think of finking as cutting a deal with President Trump and not finking as fighting Trump in court. As in the above hypothetical, an individual law firm’s best response may well be to cave when attacked, even though all firms would benefit if all could somehow lock arms and refuse to roll over.

This is so, in part, because even if a law firm that challenges an executive order will surely win in court, an individualized injunction goes only so far, largely given the “persona non grata” problem we referenced earlier. 16 David Lat, Brad Karp’s Email to Paul Weiss About Its Deal with the Trump Administration, Substack: Original Jurisdiction (Mar. 23, 2025), https://perma.cc/‌Z566-VUCL (quoting email from Brad Karp, Chair of Paul Weiss, to all firm employees, explaining that, on the heels of the executive order targeting Paul Weiss, the firm “prepared to challenge the executive order in court” but then abandoned that effort when it realized that “even if we were successful in initially enjoining the executive order in litigation, it would not solve the fundamental problem, which was that clients perceived our firm as being persona non grata with the Administration”). The problem comes in because, even if the firm formally prevails, a prospective client might worry that representation by a firm that Trump has targeted will cost it government business, or raise the chances and scope of government scrutiny or interference. 17 See id. (quoting email from Brad Karp, Chair of Paul Weiss, to all firm employees, explaining that even if the firm fought in court and won, “[c]lients had told us that they were not going to be able to stay with us, even though they wanted to”). Injunctions secured by individual law firms can’t eliminate such fears, because retaliatory governmental treatment of the firm’s clients would be hard to prove and probably impossible to remedy. 18 The Trump Administration has taken ongoing steps to target even those law firms that have sued and secured injunctions. See Memorandum from Deputy Att’y Gen. Todd Blanche to All Component Heads, U.S. Dep’t of Just. (May 9, 2025), https://perma.cc/‌34ZB-NMBV (prohibiting the government from working with law firms involved in “active litigation against Administration policies”). Elsewhere, the Trump Administration has taken punitive steps against disfavored entities with little or no explanation. E.g., Jessica Blake, What to Know About Trump’s Strategy Targeting Colleges’ Grants and Contracts, Inside Higher Ed. (Apr. 18, 2025), https://perma.cc/‌6V6B-3Y23. It takes little imagination to envision the Administration canceling a contract with a business that remains a client of one of the firms that has sued, with no explanation given. As a consequence, clients represented by firms not in Trump’s good graces will have an incentive to switch to firms that are. Only if all firms are somehow involved in a coordinated opposition to Trump’s attacks will this dynamic disappear.

The threat goes beyond the prospect of lost clients. If a law firm becomes persona non grata, certain partners might also head for the hills. 19 See supra note 14. Big law firms are staffed by lawyers with different specialties. If hit by an executive order, a firm’s litigators, for instance, might want to resist Trump’s attack. But they might nevertheless cut a deal for fear that, if they don’t, key partners, or even whole practice-area groups, might bolt. 20 See, e.g., Debra Cassens Weiss, Recruitment of Lawyers from Trump-Targeted Firms is Ethics Violation, Democrats’ Letter Says, ABA J. (Apr. 9, 2025, 2:40 PM CDT), https://perma.cc/‌9PCY-BR7T (describing a report of law firms trying to poach clients and lawyers from targeted firms); Lat, supra note 16 (quoting email from Brad Karp, Chair of Paul Weiss, to all firm employees, explaining that, on the heels of the executive order targeting Paul Weiss, “we learned that certain other firms were seeking to exploit our vulnerabilities by aggressively soliciting our clients and recruiting our attorneys”). Lawyers in a firm’s mergers and acquisitions or financial services group might not be willing to challenge the President and risk losing their lucrative clients to make a point—and the litigators might not risk losing their corporate colleagues. 21 Matthew Goldstein, Michael S. Schmidt, Jessica Silver-Greenberg, Lauren Hirsch, Rob Copeland & Ben Protess, Rivals Pounce on Paul Weiss, a Top Law Firm, After Trump’s Order, N.Y. Times (Mar. 26, 2025), https://perma.cc/‌9GTQ-BY2P (explaining that as soon as Paul Weiss was hit with an executive order, some firms tried to poach Paul Weiss’s top talent, particularly from the corporate side—and this poaching was worrisome as Paul Weiss’s “corporate practice is now [its] main source of revenue”).

In short, every law firm partner knows that if they are targeted by an unlawful executive order and opt to challenge it, they could win the battle but lose the war. This creates powerful pressure to cave, and firms’ surrenders are thus no surprise.

An additional point bears discussion. Several recent news stories have chronicled decisions by corporate clients to drop firms that settled with Trump—the finkers of the law-firm version of the prisoner’s dilemma game—while other reports chronicle the departures of certain big-name partners. 22 See, e.g., Scheiber, supra note 5 (describing Microsoft’s decision to dump a capitulating law firm in favor of a firm that resisted Trump’s attack); Erin Mulvaney, Emily Glazer, C. Ryan Barber & Josh Dawsey, The Law Firms That Appeased Trump—and Angered Their Clients, Wall St. J. (June 1, 2025, 9:00 PM ET), https://perma.cc/‌Q86N-TZMP (describing a filing by McDonald’s informing a federal court that former Attorney General Loretta Lynch, a Paul Weiss lawyer, would withdraw from representing McDonald’s in a case she had worked on for years); Michael S. Schmidt, Jessica Silver-Greenberg & Matthew Goldstein, Karen Dunn and Other Top Lawyers Depart Paul Weiss to Start Firm, N.Y. Times (May 23, 2025), https://perma.cc/‌CWH8-K38K (reporting that “[f]our top partners” were leaving Paul Weiss to start their own firm). Given these dynamics, one might wonder whether we can just count on market forces to eliminate the effects of Trump’s attack.

We think the answer is no.

To be sure, it is unsurprising that some clients would voice their preference “to work with law firms that aren’t afraid of a fight,” as one top business attorney put it. 23 Mulvaney et al., supra note 22 (paraphrasing reported comments by Citadel attorney Brooke Cucinella). Nor is it a surprise that some high-profile attorneys would leave a finking firm for one that “lives its values.” 24 Matthew Goldstein & Jessica Silver-Greenberg, Paul Weiss Loses Another Prominent Lawyer in Wake of Trump Deal, N.Y. Times (June 6, 2025), https://perma.cc/‌QCM3-ESE9 (quoting former U.S. Attorney for the Southern District of New York, Damian Williams, who left Paul Weiss (a finker) for Jenner & Block (a firm that opted to resist)).

But these exits, so far, are too limited to alter the broader landscape. The broader landscape is this: Whether finking, fighting, or ducking for cover, American law firms are currently imperiled. Meanwhile, like in the classic prisoner’s dilemma, all firms would benefit from cooperation. All would be better off if all could credibly commit not only (1) to resist Trump, but also not to poach each other’s (2) clients or (3) attorneys. But the odds of such robust cooperation are low. Any large group of actors struggles to act collectively. Here, the problem is greatly exacerbated. Law firms not only compete; adversarial, often bare-knuckled, competition is in their very DNA. It’s no surprise, then, that broad-based cooperation hasn’t surfaced.

In summary, then, the current collective action problem is conceptually severe, is actually occurring, and threatens to disrupt the basic operation of the market for legal services. Litigation brought by individual firms, one by one, cannot solve it.

II. A Rule 23(b)(2) Class Action Could Solve this Collective Action Problem

The current collective action problem would vanish if a firm facing Trump’s threat pursued a Rule 23(b)(2) class action. Below, we detail how such a class action would work and explain why both precedent and history support the use of this device.

A. Creating a Class

Several firms targeted by Trump have already sued and obtained individual injunctions. But, pursuant to a Rule 23(b)(2) class action for injunctive relief, a firm could go further by seeking to represent other firms that are—or that might find themselves in—Trump’s crosshairs. The judge could certify that class, and with the stroke of a pen, could effectively create a powerful protective shield.

Promulgated in 1966, Federal Rule of Civil Procedure 23(b)(2) provides that a “class action may be maintained” if “the party opposing the class”—here, Trump—”has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” 25 .Fed. R. Civ. P. 23(b)(2). Furthermore, the Rule permits class certification even if the defendant’s “[a]ction or inaction . . . has taken effect or is threatened only as to one or a few members of the class.” 26 .Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment. Or, as the leading treatise on class actions explains, “it is well-settled that the defendant’s conduct described in the complaint need not be directed or damaging to every member of the class.” 27 2 William B. Rubenstein, Newberg and Rubenstein on Class Actions § 4:28 (6th ed. 2025). Thus, a class can include many firms that Trump has not yet targeted, provided that a law firm with standing acts as class representative. 28 Id. § 2:3 (explaining that “there is no confusion in cases seeking injunctive or other equitable relief” that “the standing inquiry focuses solely on the named plaintiff”). See also Hyland v. Navient Corp., 48 F.4th 110, 117-18 & n.1 (2d Cir. 2022) (explaining that, at the class certification stage, Article III is satisfied so long as “at least one named plaintiff can demonstrate the requisite injury).

At least two options for a class definition exist. The simpler one would include all law firms that represent clients with government contracts and employ lawyers with security clearances. A more detailed version would link definitional criteria to Trump’s penchant for targeting political opponents. Here is one possible class definition:

The class is defined as including

(a) all law firms that litigated cases against the federal government between January 20, 2017, and January 20, 2021;

(b) all law firms that are litigating cases against the federal government or have litigated such a case since January 20, 2025;

(c) all law firms that are litigating or have litigated cases against Donald Trump, the Trump Organization, either of the two Trump Campaigns for President, or any of the foregoing’s current or former officers, agents, or employees since January 20, 2017;

(d) all law firms that litigated against any person charged with offenses related to conduct at the Capitol on January 6, 2021, for that person’s January 6th-related conduct;

(e) all law firms that litigated cases either defending results in the 2020 presidential election against challenges to these results or that litigated cases pursuing remedies for alleged defamation related to the 2020 presidential election;

(f) all law firms that have signed or filed any amicus brief supporting a position adverse to Donald Trump in his individual or official capacity since January 20, 2017;

(g) all law firms that have signed or filed any amicus brief seeking to limit or reverse or mandate action by any agency, officer, or employee of the federal government that was taken between January 20, 2017, and January 20, 2021, or since January 20, 2025; and

(h) all law firms that employ lawyers who have:

(1) done any of the foregoing litigation work,

(2) have done legal work related to the prosecution of any of the persons described in (d), or

(3) worked for any Congressional committee that investigated any action described in (d).

This class definition is lengthy, but the specificity is necessary for it to be both comprehensive and clear in its use of objective criteria to determine class membership. These objective criteria ensure that determining class membership would not require mini-trials to determine whether any particular law firm fits within the class boundaries. 29 This criterion—known as “ascertainability”—is not necessarily required by Rule 23(b)(2), and indeed several courts have held that Rule 23(b)(2) classes do not need to satisfy it. E.g., Cole v. City of Memphis, 839 F.3d 530, 541-42 (6th Cir. 2016); Shelton v. Bledsoe, 775 F.3d 554, 559-63 (3d Cir. 2015); Orr v. Trump, No 1:25-cv-10313, 2025 WL 1695941, at *8-10 (D. Mass. June 17, 2025); Rubenstein, supra note 27, § 3:7. This view is not universally held. Braidwood Mgmt., Inc. v. EEOC, 70 F.4th 914, 933 n.36 (5th Cir. 2023). Regardless, both our detailed and very simple class definitions would pass muster, as each is specific and objective.

Once the court certified the class under Rule 23(b)(2), all firms within its definition would be class members. Unlike in actions for damages under Rule 23(b)(3), in a Rule 23(b)(2) class action, class members do not have opt-out rights. 30 Compare Fed. R. Civ. P. 23(c)(2)(A) (not mentioning opt out rights in the Rule 23(b)(2) context), with Fed. R. Civ. P. 23(c)(2)(B)(v) (requiring notice and opt out rights in a Rule 23(b)(3) case). This is crucial. No firm could “defect.” And the collective action problem would be solved.

B. Class Action Doctrine and History Support a Law Firm Class Action

With the recent demise of the universal (or “nationwide”) injunction in Trump v. CASA, the class action has become even more indispensable as a collective response to Trump Administration illegality. 31 Trump v. CASA, Inc., No. 24A884, 2025 WL 1773631, at *8 (June 27, 2025). Trump v. CASA will likely invite challenges to the power of federal courts to issue broad injunctive relief in cases brought by associations availing themselves of associational standing. See FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 401-02 (2024) (Thomas, J., concurring) (linking the universal injunction to associational standing and questioning both as inconsistent with traditional understandings of federal courts’ equitable power). Class actions, by contrast, pose no challenges by the terms of Trump v. CASA’s analysis of federal equity power. 2025 WL 1773631, at *9 (explaining that the bill of peace, a traditional equitable device for group litigation, “evolved into the modern class action” and not the universal injunction). See Isaac Chaput, End of Universal Injunctions, Re-Emergence of Rule 23(b)(2) Class Actions, Covington (June 30, 2025), https://perma.cc/‌G7DK-VRY9 (forecasting that the Court’s ruling in Trump v. CASA “will propel many litigants challenging federal statutes and policies to opt for Rule 23(b)(2) class actions in order to secure broad injunctive relief”). Then, beyond the basic fact that the class action (unlike the universal injunction) remains available—its application here, in the law firm context, is also supported by both doctrine and history.

Indeed, the Rule 23(b)(2) class may be more available than some observers assume. In some recent commentary, experts have raised sharp concerns about Rule 23’s overall health, lamenting that class actions have been “eviscerat[ed] or “gutted.” 32 E.g., Exploring Legislative Solutions to the Bipartisan Problem of Universal Injunctions: Hearing Before the S. Comm. on the Judiciary, 119th Cong. 4 (2025) (statement of Stephen I. Vladeck) (characterizing Wal-Mart v. Dukes, 564 U.S. 338 (2011) as having “eviscerat[ed]” the class action); Mark Joseph Stern, The Decade Class Actions Were Gutted, Slate (Dec. 18, 2019, 5:58 AM ET), https://perma.cc/‌DN44-MPGY. See generally Robert H. Klonoff, The Decline of Class Actions, 90 Wash. U. L. Rev. 729 (2013) (describing numerous doctrinal changes that restrict the availability of the class action). But, at least as applied to the 23(b)(2) class, these concerns are overstated. For the type of case law firms would bring, recent doctrinal developments have been modest, not monumental. 33 Robert H. Klonoff, Class Actions Part II: A Respite from the Decline, 92 N.Y.U. L. Rev. 971, 992-93 & n.150 (2017) (discussing Wal-Mart’s limited impact on class actions against government defendants for injunctive relief).

True, Wal-Mart v. Dukes, 34 564 U.S. 338 (2011). the Supreme Court’s decision that has most directly impacted Rule 23(b)(2) classes, raised the bar in certain respects. But even post Wal-Mart, “[c]ourts continue to certify public interest classes at a robust clip.” 35 David Marcus, The Persistence and Uncertain Future of the Public Interest Class Action, 24 Lewis & Clark L. Rev. 395, 407 (2020). In fact, between June 21, 2011, and March 31, 2020, there were over 300 reported district court opinions related to class certification in public interest cases, of which approximately three-fourths favored plaintiffs. 36 Id. at 411-12 tbl.1; see also David Marcus, The Class Action After Trump v. CASA, 73 UCLA L. Rev. Discourse (forthcoming 2025) (manuscript at 13 & nn.83-84) (observing that, since Wal-Mart, the federal courts of appeals have issued forty-two decisions on class certification in Rule 23(b)(2) cases against government defendants, and finding that plaintiffs have prevailed, in whole or in part, in twenty-eight of these instances). As discussed therein, there are good reasons not to worry about selection effects that commonly arise after legal standards change. See Marcus, supra note 35, at 411 n.73.

Yes, particularly in the wake of Wal-Mart, courts demand considerable evidence that the defendant has injured—or threatens to injure—all class members in a common way. 37 E.g., Parsons v. Ryan, 754 F.3d 657, 681-85 (9th Cir. 2014) (discussing Rule 23(b)(2) class actions after Wal-Mart). And yes, that’s a real obstacle in some cases. But it’s not a substantial obstacle here. The liability questions upon which entitlement to a class-wide remedy would turn—for instance, “does the President have the power under Article II to subject lawyers to professional discipline?” 38 E.g., Complaint at 25-28, Perkins Coie v. U.S. Dep’t of Just., No. 25-CV-00716, 2025 WL 776323 (D.D.C. Mar. 11, 2025) (alleging that the President does not have this power). —necessarily generate the same answers for all law firms. And the requested relief—a judgment that retaliatory executive orders are unlawful plus an injunction prohibiting the President from issuing further retaliatory orders—would be uniform across the class as a whole. 39 See, e.g., Augustin v. City of Philadelphia, 318 F.R.D. 292, 301 (E.D. Pa. 2016) (“[T]he primary relief which Plaintiffs seek . . . is indeed the issuance of one injunction and/or declaration applicable to all of the members of the class . . . . From this, we readily conclude that the case now before us is clearly the type of . . . action for which Rule 23(b)(2) was uniquely designed.”); Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 536-37 (N.D. Cal. 2012) (finding that “[p]laintiffs have met the requirements of (b)(2)” where plaintiffs “complain[ed] of a pattern or practice that is generally applicable to the class as a whole” and “any classwide injunctive relief would address [that] pattern or practice”). Such cases remain tailor-made for class treatment. 40 E.g., Fowler v. Guerin, 899 F.3d 1112, 1120-21 (9th Cir. 2018) (reversing and remanding a denial of class certification when the plaintiffs challenged the lawfulness of a single policy applied to them uniformly); Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 498 (7th Cir. 2012) (distinguishing cases challenging an “illegal policy” from those that require individualized determinations of class members’ treatment).

Califano v. Yamasaki, 41 442 U.S. 682 (1978). which the Supreme Court cited favorably in Trump v. CASA, provides particularly helpful support for a law firm class action. 42 See Trump v. CASA, Inc., No. 24A884, 2025 WL 1773631, at *11 (June 27, 2025); id. at *19 (Kavanaugh, J., concurring) (citing Califano in support of the claim that, after Trump v. CASA, plaintiffs can obtain “classwide relief” that may be “nationwide”). There, a federal agency head announced that he would withhold future payments from Social Security beneficiaries who he claimed had been overpaid—and that he would not restart payments until overpaid amounts had been recouped. 43 Califano v. Yamasaki, 442 U.S. 682, 684 (1979). Two sets of plaintiffs brought class actions, alleging that the withholding would violate due process and the Social Security Act because it would happen without notice and a hearing. 44 Id. at 687-89. Ultimately, the consolidated cases went to the U.S. Supreme Court. The Court held that “class relief is appropriate in civil actions brought in federal court, including those seeking to overturn determinations of the departments of the Executive Branch of the Government in cases where” individuals could challenge their mistreatment individually. 45 Id. at 700.

Yamasaki is instructive because (1) the federal government announced that it would target individuals for unfavorable treatment, and (2) what made the government’s conduct unlawful did not vary from individual to individual. Trump’s attacks on law firms share these characteristics. 46 Notably, in Yamasaki, the defendant threatened to withhold different amounts from different class members—just as Trump’s attacks might play out differently for different firms. What matters is that in Yamasaki, the case centered—and here, the case will center—on the illegality of the defendant’s conduct with respect to all class members. See id. at 701 (finding class treatment warranted, notwithstanding the “differences in the factual background of each claim”).

Beyond precedent, a law firm class action would further Rule 23(b)(2)’s legacy, one that began with a collective action problem of profound importance. The relevant history goes back to the years after Brown v. Board of Education formally declared that “in the field of public education the doctrine of ‘separate but equal’ has no place.” 47 Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954). Brown left lower courts with the question of how, exactly, to remedy school segregation. Some lower courts, hoping to turn back the clock, took this opening as a license to deprive Brown of its force. One influential opinion issued in Brown’s wake insisted that “[t]he Constitution . . . does not require integration” and instead “merely forbids discrimination.” 48 Briggs v. Elliott, 132 F. Supp. 776, 777 (E.D.S.C. 1955). On the importance of this interpretation, see David Marcus, Flawed But Noble: Desegregation Litigation and Its Implications for the Modern Class Action, 63 Fla. L. Rev. 657, 683-86, 683-84 n.151 (2011).

Seizing on this interpretation, many Southern governments resisted affirmative integration efforts and, instead, required Black children to apply, one at a time, to transfer into formally all-white schools. Meaningful school integration would require a large number of Black children to navigate the onerous process individually. Furthermore, Black families that attempted the laborious transfer process for their children identified themselves openly as segregation’s adversaries, amidst a violent backlash to Brown. 49 Erika Frankenberg & Genevieve Siegel-Hawley, Choosing Equality: School Choice and Racial Integration in the Age of Obama, 6 Stan. J. C.R. & C.L. 219, 223 & n.21 (2010).

The collective action problem was clear: When consigned to proceed individually, Black families were disincentivized to challenge state-sanctioned segregation, with the result that too few families would come forward. State-sanctioned segregation could persist. 50 .U.S. Comm’n on Civil Rights, Public Schools: Southern States 4 (1962) (describing school assignment laws that required individual families to apply to send children to desegregated schools as “the principal obstacle to desegregation in the South”).

Class actions offered a solution. A few brave Black families courageously brought lawsuits representing classes of Black children. These families fought not just for themselves, but for other families, too. Courts responded by issuing class-wide injunctions that prohibited segregation not child by child, but all at once for large groups. 51 See, e.g., Potts v. Flax, 313 F.2d 284, 288-89 (5th Cir. 1963); Ross v. Dyer, 312 F.2d 191, 196 (5th Cir. 1963); Jeffers v. Whitley, 309 F.2d 621, 629 (4th Cir. 1962); see also Marcus, supra note 48, at 687 n.172, 702-08 (discussing this litigation). The lawyers who drafted Rule 23 took note. These lawyers believed deeply in the cause Black-family class representatives championed, and they wrote Rule 23(b)(2) to codify exactly the sort of class action these families pioneered. 52 Marcus, supra note 48, at 702-08. Importantly, as we explained above in Part II.B., even in the wake of Wal-Mart and its progeny, the Rule 23(b)(2) class action is alive and well. See generally Parsons v. Ryan, 754 F.3d 657, 681-85 (9th Cir. 2014) (discussing Rule 23(b)(2) class actions after Wal-Mart). In recent years, district courts have certified Rule 23(b)(2) class actions of far greater legal and evidentiary complexity than what a law firm case would involve—and appellate courts have affirmed those decisions. See supra notes 35-36 and accompanying text.

Conclusion

Today’s wealthy law firms are worlds apart from the Black families of the 1950s and 1960s who battled segregation. But they face the same sort of collective action problem—one that the Rule 23(b)(2) class action exists to solve.

If just one targeted firm pursues a class-action strategy, class-wide preliminary relief could follow rapidly. The incentive to race to the bottom would cease, and the American legal profession could survive this existential threat to its independence.

*Nora Freeman Engstrom is the Ernest W. McFarland Professor at Stanford Law School and the Co-Director of the Deborah L. Rhode Center on the Legal Profession. Jonah B. Gelbach is the Herman F. Selvin Professor of Law at the University of California, Berkeley School of Law. David Marcus is a Professor of Law at the University of California, Los Angeles School of Law.