The Modern Class Action Rule: Its Civil Rights Roots and Relevance Today

73 Pages Posted: 17 Jan 2018 Last revised: 20 Jan 2018

See all articles by Suzette Malveaux

Suzette Malveaux

University of Colorado Law School

Date Written: 2017


The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. The article tells the story of how the drafters were united in creating a rule that would enable litigants to respond effectively to the fierce resistance to desegregation following the seminal Brown v. Board of Education decision. They deliberately crafted a rule to address desegregation obstructionism.

Second, the article examines the seminal role the modern class action rule has played in the private enforcement of statutory and Constitutional civil rights. The article analyzes Supreme Court jurisprudence interpreting Rule 23(b)(2) over the course of the last fifty years, identifying three primary periods in which the pendulum has swung: from a heyday of liberal class certification for broad injunctive relief for newly created rights; to a heightened critique and retraction of class certification; to a complex gauntlet of contemporary barriers.

Finally, the article critiques modern class action jurisprudence and concludes that it fails to sufficiently fulfill the drafters’ intent of creating an efficient and just procedural mechanism for challenging systemic inequality. The article urges a contemporary judicial interpretation that honors Rule 23(b)(2)’s strong civil rights mission.

Keywords: class action, civil rights, Rule 23, discrimination, Constitution, Supreme Court

JEL Classification: K40, K41, K42

Suggested Citation

Malveaux, Suzette, The Modern Class Action Rule: Its Civil Rights Roots and Relevance Today (2017). 66 Kan. L. Rev. 325 (2017) , CUA Columbus School of Law Legal Studies Research Paper No. 2018-2, Available at SSRN:

Suzette Malveaux (Contact Author)

University of Colorado Law School ( email )

401 UCB
2450 Kittredge Loop Road
Boulder, CO 80309
United States

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