Walking the Class Action Maze: Towards a More Functional Rule 23

32 Pages Posted: 29 May 2013 Last revised: 18 Jun 2013

See all articles by Robert G. Bone

Robert G. Bone

University of Texas School of Law

Date Written: May 28, 2013


Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions — such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal-Mart Stores, Inc. v. Dukes — are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article, which is a symposium contribution, proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by fairness to absentees and due process, and (2) the problem of strategic abuse associated with frivolous and weak class action filings.

Responding in large part to concerns about fairness, due process, and legitimacy, the Supreme Court has adopted a vague class “cohesion” requirement (Amchem), an interpretive principle tethering the class action to outdated precedent (Ortiz), and a strong indivisibility condition for (b)(2) certification (Wal-Mart). The problem is that none of these limitations is based on a clear understanding of what fairness to absentees requires or how the individual day-in-court right can be reconciled with representative litigation. As a result, the Court’s decisions are poorly reasoned and its restrictions inadequately justified. The Advisory Committee should do what it can to correct these deficiencies, and this Article suggests a promising approach. Furthermore, in response to concerns about the strategic filing of frivolous and weak class action suits, federal judges have tightened the standard of proof for certification. But they have done so without general agreement on the normative stakes, and the result is a collection of inconsistent and relatively vague standards. The Advisory Committee should clarify the law in this area by specifying a standard of proof in the text of Rule 23. This Article suggests a useful framework for doing so.

Finally, the Article briefly discusses some potential obstacles to Committee action, including the advisability of overruling recent Supreme Court decisions, potential constitutional problems, Rules Enabling Act constraints, transsubstantivity objections, and the ever-present risk of political controversy.

Keywords: class actions, Rule 23 reform, class cohesion, certification standard of proof

JEL Classification: K40, K41

Suggested Citation

Bone, Robert G., Walking the Class Action Maze: Towards a More Functional Rule 23 (May 28, 2013). University of Michigan Journal of Law Reform, Vol. 46, 2013, U of Texas Law, Public Law Research Paper No. 487, Available at SSRN: https://ssrn.com/abstract=2271305

Robert G. Bone (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-5562 (Phone)
512-471-6988 (Fax)

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