My colleague Rick Marcus, one of the current “greats” in the world of civil procedure, recently wrote a paper called “Bending in the Breeze: American Class Actions in the Twenty-First Century.” In the paper, Professor Marcus appraises the future of the federal class action.
Professor Marcus is in a good position to do so; he has served as Associate Reporter of the Advisory Committee on Civil Rules since 1996, and is the Reporter of the Rule 23 Subcommittee that has had primary responsibility for considering Rule 23 amendments since 2014. In those roles, he’s been privy to extensive and repeated discussion about Rule 23, both inside and outside the Advisory Committee. Rule 23 always seems to be at the forefront of hot-button issues in civil procedure. And recent developments in the amendment process, in Supreme Court opinions, and in Congress have tended to raise the prospect that class actions are facing significant headwinds.
Professor Marcus’s main contribution is to show, persuasively, that class-action practice and the law applicable to it are resilient enough to persist in meaningful forms despite these headwinds. Taking the long view, Professor Marcus traverses the history of Rule 23, from its heyday to the inevitable scaling back, arriving at the present openings for continued utility.
As he often is, Professor Marcus is a voice of sobriety among shrills of panic, and his argument is persuasive. Hopes for the end of class actions are unrealistic; class-action practice is too ingrained, and class-action lawyers are too persistent and creative. Yes, the class-action pendulum has swung away from its amplitude. But the pendulum is still moving, and perhaps there are even upswings yet to be had.