The (Cloudy) Future of Class Actions

The past, both proximate and remote, is often consulted in attempts to predict the
future. Of course extrapolation from past to future is at best an uncertain art.
Extrapolation, however, is not the only problem. Lessons from the recent past are
distorted by lack of perspective. Lessons from the distant past are distorted by
distance. The first step is to choose which of the competing pasts to consult.
Selfishly, I choose to consult the recent past, as it continues through the present
and on into the near-term future, from the perspective of the Advisory Committee on
the Federal Rules of Civil Procedure. I gain at least two advantages from this
perspective.

The first advantage is that the Civil Rules Committee experience is familiar. Many
of the observations that follow build from my own summaries of the public
testimony and comments on proposals to amend Rule 23 that were published in 1996.
One function of these observations, indeed, is to provide an helpfully in the
rulemaking process. The proposals were intended to be relatively modest, opening
opportunities to pare back the use of class actions in some settings and to expand
the flexibility of class actions in others. The testimony and comments, however,
showed a wide range of conflicting views not only about the proposals but also
about contemporary uses of class actions in general. Except for a proposal to add
a provision for permissive interlocutory appeals, the 1996 proposals have not yet
gone–and many are not likely to go–further.

The second advantage, perhaps not so obvious, is that this chosen platform provides
some excuse for my inability to make clear predictions. So long as I have the great
good fortune to serve as the Advisory Committee Reporter, I can have no firm views.
Indeed, I cannot even make predictions as to the likely course of further Committee
deliberations. The Committee maintains a continuing Rule 23 agenda. Rule 23 is
caught up in the continuing dilemma of “mass tort litigation, however, and three
Committee members are participating in a mass torts working group with liaison
members from five other Judicial Conference Committees. The Rule 23 agenda may well
remain largely inactive until the working group has run its one-year course. A
reasonably safe way to avoid wrong predictions is to make no predictions.