As Professor Yeazell has shown, present Federal Rule 23 has a surprisingly
long lineage, but it remains a work in progress. One of its “roots,” the aptly named
“Bill of Peace,” has been described by Professor Rowe. My task is to examine the
original version of Rule 23, as it appeared in the new Federal Rules in 1938. That
version served until the amendment of Rule 23 which became effective in 1966 as
part of a general revision of the Federal Rules.
With the benefit of hindsight, we can now say that the original rule had a
number of weaknesses, some of which were addressed in 1966. Yet it would be
inappropriate merely to criticize the rule. The 1938 Federal Rules as a whole,
including Rule 23, represented an enormous effort to organize an untidy body of
procedural law into a coherent set of statements which would govern the conduct of
all civil litigation in the federal courts. It would be presumptuous to suggest that
every issue should have been worked out to our present satisfaction.