In a forthcoming article in the New York University Law Review, my colleague Scott Dodson takes us through the looking glass by providing a “negative retrospective” of the class action rule that might have been. To anyone who feels comfortable with the current text of Rule 23, this is exciting and challenging reading, in part because it calls into question the inevitability of the status quo.
Had they been adopted, previously rejected proposals would have left us with, among other things, an opt-in mechanism for (b)(3) classes, an easier runway to settlement-class certification, and more explicit consideration of the social and administrative costs of class actions in the certification determination. Professor Dodson suggests that these features are “not beyond reason,” and would have produced a Rule 23 “that prioritizes individual class-member compensation and greater protections and rights for absent class members, that focuses on more facile settlement of class actions for efficiency purposes, that recognizes and internalizes the costs and hassles of class litigation for defendants and the courts, and that grants far greater discretion to district judges to balance all of these issues.”
Professor Dodson’s negative history of Rule 23 sheds light on the positive history of the rule, revealing the changing social and cultural norms and the competing values that have animated it. It also reveals a rulemaking process characterized by “amendment minimalism” as a result of the Advisory Committee’s deference to the Supreme Court and “changes to the membership of the Committee, to the rulemaking process, and to the politicization of procedure.”
From where will future procedural innovation come? Professor Dodson’s article suggests that it won’t come in a profound way from the current rulemaking process. The biggest reforms in the past 20 years have been statutory, including the Private Securities Litigation Reform Act of 1995 and the Class Action Fairness Act of 2005. The new Congress looks poised to continue that trend, no doubt by reviving the Fairness in Class Action Litigation Act that was not able to make it over the hill when Obama was President.