72 Pages Posted: 19 Sep 2010
Date Written: September 17, 2010
As revised in 1966, Rule 23 of the Federal Rules of Civil Procedure requires that class members in money damages suits receive notice and an opportunity to opt out. Class members in injunctive relief suits do not enjoy these procedural rights. No consensus explanation for this difference, which implicates the class action’s constitutional foundation, has prevailed. Using previously-overlooked primary sources, I provide a history of both class action doctrine before 1966 and the labors of the authors of the 1966 revision to determine why they structured the rule the way they did. The answer is startling. No purely procedural, trans-substantive justification exists to explain why they eschewed procedural rights for injunctive relief suits. Rather, the 1966 authors did so to assist plaintiffs prosecuting desegregation suits in the Deep South. The substance-specific origins of at least part of Rule 23 call into question foundational aspects of current class action doctrine.
Keywords: class actions, desegregation, civil procedure, legal history
Suggested Citation: Suggested Citation
Marcus, David, Flawed But Noble: Desegregation Litigation and its Implications for the Modern Class Action (September 17, 2010). Florida Law Review, Forthcoming ; Arizona Legal Studies Discussion Paper No. 10-32. Available at SSRN: https://ssrn.com/abstract=1678803