Still Confronting the Consolidation Conundrum

"I think it unlikely that the class action will ever be taught to behave in accordance with the precepts of the traditional model of adjudication." --Professor Abram Chayes (1976) (1) "Class actions had their day in the sun and kind of petered out." --Dean Paul Carrington, Reporter, Advisory Committee on Civil Rules (1988) (2) "[The use of class actions is] transforming the litigation landscape.... Class actions are being certified at unprecedented rates, and they are involving a substantial [number], if not a majority, of all American citizens." --Judge Paul Niemeyer, Chair, Advisory Committee on Civil Rules (1997) (3) "Anyone listening to our opening statements [about class-action litigation] would think that we are talking about two different things. The wide differences of the views are astounding, but they happen regularly in the Judiciary Committee." --Rep. John Conyers (2012) (4) INTRODUCTION In 1995, I reacted to then-current debates about handling the phenomenon of mass litigation, and in particular the work of the American Law Institute's Complex Litigation project, by suggesting that we were finally confronting the consolidation conundrum. (5) I applauded the effort to bring consolidation of separate cases into some conformity with class-action treatment, particularly in terms of when consolidation was appropriate and policing of the handling of the aggregate litigation that would result. But I also predicted that the statutory recommendations emerging from the ALI Project were unlikely to be adopted by Congress. (6) Much has happened since then. In 1996, the Advisory Committee published a set of possible amendments to Rule 23 that included some revisions to class certification standards under Rule 23(b)(3) and the introduction of a new Rule 23(b)(4) to authorize certification solely for settlement. (7) Those proposals produced a lot of controversy and a lot of comment; eventually Judge Niemeyer had the commentary published in four volumes that he brought with him when he testified before Congress as quoted above. (8) In 1997 and again in 1999, the Supreme Court made important decisions on mass tort class actions. (9) In 2003, Rule 23 was amended to deal with procedures attending class certification rather than the criteria for certification. (10) In 2005, the Class Action Fairness Act (CAFA) (11) expanded federal-court jurisdiction for class actions asserting claims based on state law and made them subject to federal class-action rules and decisions. (12) In 2009, the ALI published its Principles of the Law of Aggregate Litigation, (13) which addresses both class actions and other forms of aggregation. In 2010 and 2011, the Supreme Court decided an exceptional number of class-action cases, (14) and it seems that more are on the way. (15) Certainly these decisions do not reflect wholehearted enthusiasm for class action, (16) and some see them contributing to "the decline of class actions." (17) At least one piece of legislation has already been introduced in Congress to undo the effects of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes (18) and facilitate combined litigation in employment discrimination cases. (19) On June 1, 2012, as suggested by the quotation above from Rep. Conyers, the Subcommittee on the Constitution of the House Judiciary Committee held a hearing focusing on the impact of CAFA and addressing more generally a variety of issues about class-action practice. (20) Finally, in early 2012 the Advisory Committee on Civil Rules created a Rule 23 Subcommittee to consider whether some further amendments to the class-action rule might warrant serious consideration. (21) Though much has changed, then, much remains the same--aggregation of litigation is still a hot topic. Beyond a doubt, the field is rife with issues that could be addressed. …