Rule 23(f): A Note on Law and Discretion in the Courts of Appeals

Abstract

This article examines the treatment of Rule 23(f) of the Federal Rules of Civil Procedure, which authorizes the appeal of decisions granting or denying class certification petitions, by appellate courts. It does so by looking at each circuit's docket sheets to see what evidence they yield as to how they have disposed of such petitions. It begins by discussing what Rule 23(f) is; then briefly discusses the results of a circuit-by-circuit docket search for 23(f) petitions, and finally raises the question whether a "certiorari" model – at least one understood as an "unfettered discretion" model – is wholly appropriate for the courts of appeals to use in considering whether to grant Rule 23(f) petitions. We conclude that the rule of law requires that matters of such importance be treated with more transparency and with greater assurances of consistency and conformity.

Keywords: class actions, class certification, class status, appeal of class certification, Rule 23(f)

JEL Classification: K4, K10, K41