Rule 23(b) after Wal-Mart: (Re) Considering a 'Unitary' Standard

80 Pages Posted: 19 Sep 2012

Date Written: April 4, 2012


For more than forty years, the requirements for class certification have been specified in Rule 23 (a) and (b). Under these provisions, a class may be certified if all the requirements of subsection (a) are satisfied, and if the class fits within one of the categories set forth in subsection (b). The court's selection of category, in turn, determines what protections beyond adequate representation must be provided absentee class members. By articulating classifications that emphasized function over formalism, the drafters of the 1966 amendments sought to bring needed clarity and certainty to the certification process. The hoped-for certainty, however, has proven elusive. As reflected in the courts' recent struggle to determine the proper category in cases seeking both monetary and injunctive relief (triggering a serious circuit split), the current category system may in fact impede and obscure the determination of the class certification and protection questions. While the Supreme Court's decision in Wal-Mart v. Dukes supplies some guidance to the lower courts in this area, this Article argues that the best long-term solution may be to abandon a category-based standard. In its place, the Rule should substitute an interest-based standard and decouple the certification and protection decisions. Under the proposed standard, the court would first determine whether a class should be certified by assessing the level of cohesion characterizing class claims, and on the basis of that assessment, determine whether interests traditionally implicated in class actions -- promoting efficiency; avoiding prejudice; facilitating access to the courts; and respecting the absentees' autonomy interests -- would be served by certification. In the event certification is warranted, these assessments would inform the court's subsequent decision regarding the appropriate protections afforded class members. Such a standard offers substantial advantages. It eliminates the sometimes excessive energy invested in determining the correct applicable category. It provides courts with greater flexibility, allowing them to tailor the certification and protection decisions to the circumstances before them. Finally, because courts would be required to assess, directly and explicitly, the relevant interests, it would ensure greater transparency in decision-making. Such transparency allows for more effective appellate review, thereby alleviating any potential for abuse.

Keywords: Wal-Mart, Class actions, Rule 23(b)

Suggested Citation

Murphy, Mollie, Rule 23(b) after Wal-Mart: (Re) Considering a 'Unitary' Standard (April 4, 2012). Baylor Law Review, 2012, Forthcoming , Available at SSRN:

Mollie Murphy (Contact Author)

Ave Maria School of Law ( email )

1025 Commons Circle
Naples, FL 34119
United States

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