SOMETHING LESS AND SOMETHING MORE: MDL'S ROOTS AS A CLASS ACTION ALTERNATIVE

Rule 23(b)(3) has always had a bit of a self-confidence problem, at least when it comes to mass torts. Although it offers what its drafters called an"adventuresome" opportunity to unite and bind a class whose members' claims share common questions of fact or law, it has always contain...

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Bibliographic Details
Published in:University of Pennsylvania law review 2017-06, Vol.165 (7), p.1711-1742
Main Author: Bradt, Andrew D.
Format: Article
Language:English
Subjects:
Amendments
CIVIL LAW
CIVIL PROCEDURE
Class action lawsuits
CLASS ACTIONS
Class actions (Civil procedure)
CONFLICT OF LAWS
History
Judgment
Laws, regulations and rules
LITIGATION
Multidistrict litigation
Social aspects
TORTS
U.S. states
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Summary:Rule 23(b)(3) has always had a bit of a self-confidence problem, at least when it comes to mass torts. Although it offers what its drafters called an"adventuresome" opportunity to unite and bind a class whose members' claims share common questions of fact or law, it has always contained hedges that cabin its applicability. These hedges include the requirements of predominance and superiority and the unlimited right of a class member to opt out. Ultimately, Rule 23(b)(3) creates the possibility of a binding judgment on all members of a mass tort class, but the limitations embedded in the rule make such a judgment-and its potential benefits-difficult to realize.
ISSN:0041-9907
1942-8537