In 1966, the Supreme Court promulgated an amended rule 23 of the Federal Rules of Civil Procedure, replacing a rule that had remained unchanged since 1938. The 1938 rule, which was understood to reflect Professor Moore's famous distinctions among "true," "hybrid," and "spurious" class suits, proved to be a source of confusion almost from its date of promulgation, and by i966 courts were having great difficulty applying the concepts of joint and several rights the rule relied upon to define cases appropriate for class treatment. Commentators ignored the terms of the rule and sought justification for conclusive adjudication of absentee claims through class suit in other, more pragmatic considerations. Although no unified, well-accepted theory of the purpose and function of the class suit had emerged by 1966, there was a consensus that the historic criteria defining the propriety of class suit had no contemporary meaning and that therefore the class action device needed to be rethought.
By 1966, three answers could be found in the commentary to the question: Why have class suits? First, class suit was seen to be useful, perhaps necessary, in situations where an action, regardless of its individual form, would itself either affect the interests of nonparties or alternatively create a potential for conflicting obligations for one of the parties. The second answer, rather than justifying class suit in terms of fairness to absentees or to the class opponent, asserted that class suits provide convenient and economical forums for disposing of similar lawsuits. The third answer, which has developed into the theory of the consumer class suit, was that class suits provide a device for aggregating substantially similar claims, thereby prorating the cost of litigation among numerous litigants and making suit feasible where it would not be otherwise.
Law | Torts
Harv. L. Rev.
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