Rule 23: Challenges to the Rulemaking Process
Edward H. Cooper
Three decades have elapsed since Rule 23 of the Federal Rules of Civil Procedure last underwent revision. Taking a cue from proposed amendments prepared by the Civil Rules Advisory Committee, Professor Cooper asks whether now is the appropriate time to revise Rule 23. In this Article, he identifies three potential “big changes” to the Rule: substantially curtailing class actions; accommodating the needs of mass-tort actions; and recognizing the class as an entity, distinct from Its representatives. After outlining and critiquing the Advisory Committee’s draft, Professor Cooper raises a host of questions about many aspects of Rule 23 and suggests that perhaps we do not know enough about the operation of the current version of the Rule to undertake effective reform. Although he cautions against revision of Rule 23 before we obtain answers to some of the questions posed, Professor Cooper remains optimistic that the Rule can be improved in some ways without great cost.