Richard Marcus, ‘Revolution v Evolution in Class Action Reform’

It is widely agreed that the federal-court class action became a somewhat revolutionary device after Rule 23 was amended in 1966. Since 1966, further substantial changes to the rule have been considered by the rulemakers, but more proposals have been discarded than adopted. Meanwhile, a major battle has emerged about whether class actions should primarily or solely be designed to achieve deterrence or limited to a compensatory function. That division has been central to many current debates, such as the issue of ‘no injury’ class actions, whether courts could certify classes only after determining that they were ‘ascertainable’ by an identified administratively feasible method, and whether the idea of cy pres could be used to justify class actions in which the defendant paid a large amount, but the class members themselves received little or nothing and the funds were instead used for good works of some relevant sort …

Richard Marcus, Revolution v Evolution in Class Action Reform, 96 North Carolina Law Review 903 (2018)

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