Frontloading, Class Actions, and a Proposal for a New Rule 23

Abstract

As we are celebrating the 50th anniversary of the modern class action Rule — the version adopted in 1966 — the Advisory Committee is working on further revisions of Rule 23, conferences on the topic are proliferating, and the Supreme Court and lower federal courts are trying to navigate the technicalities of the current Rule. Several doctrines in the federal system have generated a frontloading trend, i.e., a trend that pushes the analysis of the merits of the claim to the very outset of the litigation, before discovery has taken place, ultimately resulting in a denial of justice. The current Rule 23 and its proposed amendments seem to follow the same trend. In the article, I unearth the frontloading trend, show how and to what extent Rule 23 and its interpretation is part of it, and propose a new Rule 23, one designed to promote the underlying litigation principles the original Rule was meant to advance. I spent my fall 2016 at the Yale Law School to work on Charles E. Clark’s Papers that are stored in the Yale’s Archives. Clark was the driving force behind the adoption of the Federal Rules. Clark’s Papers contain Clark’s thoughts, notes, sketches, ideas on the federal rules and the federal system he was designing, his philosophy of legal analysis and judicial decisionmaking. Clark’s clear procedural vision has produced Rules that have lasted, almost untouched, for almost 80 years. Inspired by Clark’s vision and ideas, my paper articulates a theory of class actions that is truthful to the design of the original Federal Rules, and proposes a new class action rule that is consistent with that theory and with Clark’s original vision for the rules.