The Constitutionality of the Proposed Amendments to Rule 23

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 discretion. 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. Three final observations concerning the constitutional challenges to the proposed Rule 23 amendments, and the problem of the Rules Enabling Act attack: First, it is difficult to follow the current debate over the proposed Rule 23(b)(4) settlement proposal without an immense sense of irony at what the rule opponents will accomplish if they successfully defeat this proposal. In essence, defeat of the settlement class proposal will kill off the possibility of resolving mass tort litigation -- and many other different substantive class actions -- through the auspices of classwide settlements. Coupled with the recent trend in federal courts repudiating nationwide class certification of mass tort litigation classes, the combined effect will result in the disaggregation of thousands of claims into individual or other small group litigation. This is what the rule opponents desire; they believe this is the only just and fair method of resolving mass tort claims. The opponents of proposed Rule 23(b)(4) vigorously and sincerely oppose settlement classes because of an alleged parade of horribles implicated in this means for resolving classwide claims. Yet in defeating the settlement class proposal, not only would these champions deny claimants of one of the few means for resolving these massive disputes, but they also would forego, on behalf of these citizens, an array of judicially required protections that simply are not available in other forms of litigation. Second, it is unfortunate that the virulent attack on the proposed Rule 23(b)(4) settlement class chiefly derives from the highly organized and vocal advocacy of a group of law professors with passing experience -- and in many instances no experience at all -- with one highly controversial settlement class, the Georgine litigation. The fate of the Rule 23(b)(4) proposal should not rise or fall on the Georgine litigation, but the Georgine settlement class is indeed the subtext for the controversy over the (b)(4) proposal. Third, the danger of the constitutional and Rules Enabling Act attacks against the class action proposals is that if these arguments (and the prestigious collection of persons advancing them) generate enough heat, then the Advisory Committee is likely to beat a retreat to save its political capital. This would be unfortunate both for the current rulemaking, as well as the precedent it would set for future rulemaking. The Advisory Committee has proposed a set of minimal revisions to the class action rule after lengthy and deliberative process. The Advisory Committee debated, acknowledged, understood, and evaluated the constitutional and Rules Enabling Act objections to these proposals. The Advisory Committee debated, acknowledged, understood, and evaluated the pragmatic implications of these proposals. While not perfect, the proposals are sound. It would be a tragedy, indeed, if the Advisory Committee were to capitulate to sophisticated but misguided attacks that would transform procedure into substance.