Academic journal article The Yale Law Journal

Class Ascertainability

Academic journal article The Yale Law Journal

Class Ascertainability

Article excerpt

NOTE CONTENTS  INTRODUCTION I.   THE LIFE OF THE CASE: NOTICE, REMEDIES, RES JUDICATA      A. Notice      B. Remedies      C. Res Judicata II.  DEFINITIONAL MALFUNCTIONS: SUBJECTIVITY, VAGUENESS, AND SCOPE      A. Subjectivity and Vagueness         1. Subjective Classes         2. Vague Classes      B. Problems of Scope         1. Overbroad Classes         2. Failsafe Classes III. KEEPING FAITH WITH RULE 23 IV.  A RETURN TO THE TEXT CONCLUSION 

INTRODUCTION

"Modern society," wrote Harry Kalven, Jr. and Maurice Rosenfield, two legal visionaries who conceptualized the class suit, "seems increasingly to expose men to ... group injuries for which individually they are in a poor position to seek legal redress." (1) Rule 23 of the Federal Rules of Civil Procedure responds to this problem. The Rule, which took its modern form in 1966, creates a class action mechanism to aggregate the claims of people who "are isolated, scattered, and utter strangers to each other." (2) In doing so, the Rule aims to bring about regulatory effects far beyond what is possible with individual litigation alone and to break from the old formalisms that kept claims out of court. In the words of its principal drafter, Benjamin Kaplan, the Rule "intended to shake the law of class actions free of abstract categories contrived from... bloodless words... and to rebuild the law on functional lines responsive to... recurrent life patterns which call for mass litigation through representative parties." (3) Today, "modern society" still "expose[s]" men and women to "group injuries for which... they are in a poor position to seek legal redress" as individuals. But a "judicially created" (4) change to the law of class certification, untethered to the carefully engineered text of Rule 23, has disrupted class action procedure and made it harder for them to "seek legal redress" as groups. This development deserves a critical and "rigorous analysis." (5)

Rule 23 establishes specific criteria for class certification. (6) The proposed class must be so numerous that joinder of each individual plaintiff is "impracticable"; (7) the members of the class must have common claims; (8) the claims of the representative plaintiffs must be typical of the class; (9) and the representative plaintiffs must be able "adequately" to represent the absent class members. (10) If these conditions are satisfied, the proposed class must also fit into one of three functional categories. (11) "A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." (12) And a court must perform a "rigorous analysis" to ensure that the proposed class meets the Rule's requirements. (13)

Recently, however, a growing number of federal courts have identified an additional, implicit requirement for class certification: the class must be ascertainable. (14) Although this "implied requirement of ascertainability" does not appear in the text of Rule 23 and "is judicially created," (15) courts deploy it as an independent bar to class certification. (16) The general idea is that there ought to be an objective and administratively feasible way to determine exactly who is in the class. As the Court of Appeals for the Third Circuit put it, "[A]scertainability entails two important elements. First, the class must be defined with reference to objective criteria. Second, there must be a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition." (17) Courts disagree, however, about exactly what the requirement means and how it should be applied. Some courts have placed greater emphasis on the objectivity of the class's definition, which is said to protect against excessive administrative burdens over the course of the litigation. (18) Other courts have directly scrutinized the administrative feasibility of identifying individual members, requiring plaintiffs to propose and defend methods for identifying the class's membership. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.