Mirroring or Muscling: An Examination of State Class Action Appellate Rulemaking

Abstract

This article examines the impact of Federal Rule 23(f), the first significant amendment to the federal class action rule in over thirty years, on state class action rule counterparts. Rule 23(f) authorized class litigants to seek discretionary appellate review of such orders without the same stringent requirements of preexisting exceptions to the final judgment rule. While states have their own class action rules, and are not bound by any changes to the federal class action rule, they face many of the same controversies about the proper role and parameters of the class action. Indeed, in the decade after Rule 23(f), a number of states altered their existing appellate rules relating to interlocutory review of class certification orders. Subject to several important limitations, I posit a few tentative conclusions about state rulemaking behavior post-Rule 23(f). I found some clear evidence of a replica effect: following Rule 23(f), states that more closely patterned their rules after the federal rules (“replica states”) amended their rules to expand class litigant appellate access at higher rates than states less inclined to mirror federal rules in the first instance. But the high rate of expanded class appeals rules among non-replica states both pre- and post-Rule 23(f) clearly suggests the presence of significant influences other than Rule 23(f) itself. The data also suggest that interest group pressures likely played a role in some state rulemaking conduct: highly populous states, states with relatively large numbers of Fortune 500 corporate headquarters, and states with elevated levels of perceived class action activity were more likely to have allowed expanded class action appeals even before Rule 23(f), and appear to have been more amenable to amending their class action rules post-Rule 23(f) to provide greater levels of appellate access. But the flexing of interest group muscles does not wholly explain state class action rulemaking conduct in this era, some of which remains apparently attributable to a Replica Theory effect.