The Constitutionality of the Proposed Rule 23 Class Action Amendments

The proposed amendments to Federal Rule 23 currently are working their way
through the rulemaking process, with the public notice and comment period ending
February 15, 1997. The proposed amendments reflect the considered efforts of the
Advisory Committee on Civil Rules, over the past four years, to amend and
improve the existing federal class action rule., In this period the Advisory
Committee has moved from a wholesale rule revision to a more “minimalist”
approach to revamping the existing class action rule.

The Advisory Committee already has received an array of opinions
commenting on the wisdom or ill-wisdom of the proposed revisions. Generally, the
practicing bar has voiced concerns about the real-world consequences of these
changes, based on experience under the existing rule. Plaintiff and defense lawyers,
organized bar associations, interest-group lobbyists, and judges have capably
educated the Advisory Committee concerning how the proposed rules will affect
class action practice and client interests. The academic community also has
assessed the effects of the proposed amendments, but generally has been more
concerned with questions relating to the constitutional and statutory allocation of
rulemaking power, Article III justiciability issues, and the scope of judicial

Moreover, a number of commentators have posed the global question: “They
can’t do that, can they?,” raising the so-called “Rules Enabling Act question.”
Generally, the Rules Enabling Act question challenges the constitutionality of
proposed amendments, an issue embedded in the debate over the proposed Rule 23
revisions. This paper addresses the Rule Enabling Act question as it relates to the
proposed amendments, focusing chiefly on the highly controversial proposal to
authorize a Rule 23(b)(4) settlement class. The paper also briefly addresses
possible constitutional challenges to these proposals grounded in Article III and
due process concerns, rather than the Rules Enabling Act.