Complex Litigation Lecture: The Adversary System and Modern Class Action Practice

In modern class action practice, the class action device can enormously expand the availability of justice but can also cause substantial injustice to defendants and absent class members when improperly used. The latter is often the case because Rule 23 of the Federal Rules of Civil Procedure has come to be interpreted by the federal courts in ways that mask the proper criteria that should be used in deciding whether to certify a class action. Thus, Rule 23 needs a complete overhaul. First, Rule 23 should be amended to allow appeals as of right, not discretion, from orders granting or denying class actions to be certified. Second, the federal class action rule should be redrafted to allow for a more functional definition of permissible class actions and more pragmatic criteria for judging whether a given class action should be certified. Third, the rule should expressly distinguish between cases where the claims of class members are viable if pursued individually and where they are not.In addition to Rule 23, the Manual for Complex Litigation should also be revised to recommend certain best practices in the management of class actions. Where appropriate, a second judge should be appointed to assist the trial judge as a judicial guardian ad litem for the class to protect the interests of absent class members. Enacting these revisions to the class action device and expanding judicial oversight over class actions will better accomplish the purposes for which the rule was intended