Revising Judicial Gatekeeping of Aggregation: Scrutinizing the Merits on Class Certification

51 Pages Posted: 18 Sep 2016

Date Written: 2011


Despite certification's centrality, until recently federal judges have approached their gatekeeping tasks in deciding whether to certify with one hand tied behind their backs because they have regarded the Supreme Court's 1974 Eisen decision as forbidding consideration of anything bearing on the merits of the case at that point. Although the merits of class certification might sometimes involve issues that are as challenging as the ones Judge Kozinski described above, in general, the questions posed by class certification are of the sort that judges are familiar with resolving in litigation. Thus, this limitation on certification scrutiny has been questioned almost from the time Eisen was decided, and it has recently been jettisoned, in part due to the 2003 amendments to Rule 23. This is a major development. Professor Mullenix, for example, has described the Third Circuit's leading decision on evaluating the merits - In re Hydrogen Peroxide Antitrust Litigationl - as potentially the most influential class certification decision since the Supreme Court's 1997 ruling invalidating a nationwide asbestos settlement class.13 Already this trend has been denounced in the law reviews This Article places this development in the context of judicial gatekeeping more generally, borrowing from Professor Molot's recent recognition that different features of judicial management of civil litigation place varying stress on the traditional judicial function. Part I begins by noting the longstanding role of judges in fashioning and approving aggregation of litigation, and then Part II examines the 1966 amendment to Rule 23 and the constricted attitude toward certification that resulted from the Eisen decision against that background. Part III then contrasts that constricted gatekeeping role in regard to class certification with the steadily broadening gatekeeping required of judges in a variety of areas in which they are asked to perform tasks much further from traditional adjudication-including the handling of important aspects of class action practice-and Part IV finds that the recent embrace of merits scrutiny in relation to class certification is something of a "back to basics" development. Finally, Part V reflects briefly on where this development may lead.

Suggested Citation

Marcus, Richard, Revising Judicial Gatekeeping of Aggregation: Scrutinizing the Merits on Class Certification (2011). George Washington Law Review, Vol. 79, 2011, UC Hastings Research Paper No. 203, Available at SSRN:

Richard Marcus (Contact Author)

UC Law, San Francisco ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-565-4829 (Phone)
415-565-4865 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics