Still Confronting the Confronting the Consolidation Conundrum

Notre Dame Law Review Volume 88 | Issue 2 12-1-2012 Still Confronting the Confronting the Consolidation Conundrum Richard Marcus Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Recommended Citation Richard Marcus, Still Confronting the Confronting the Consolidation Conundrum, 88 Notre Dame L. Rev. 557 (2012). Available at: http://scholarship.law.nd.edu/ndlr/vol88/iss2/1 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact . Article 1 \\jciprod01\productn\N\NDL\88-2\NDL201.txt unknown Seq: 1 4-FEB-13 12:46 ARTICLES STILL CONFRONTING THE CONSOLIDATION CONUNDRUM Richard Marcus* “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  2012 Richard Marcus. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Horace Coil Chair in Litigation, University of California, Hastings College of the Law. Since 1996, I have served as Associate Reporter of the U.S. Judicial Conference’s Advisory Committee on Civil Rules. Some of that work has focused on class actions. In this piece, however, I speak only for myself and not for the Committee or anyone else. I am indebted to Mary Kay Kane for a multitude of very helpful suggestions about a draft of this article; remaining errors are mine alone. 1 Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1291 (1976). 2 Douglas Martin, The Rise and Fall of the Class-Action Lawsuit, N.Y. TIMES, Jan. 8, 1988, at B7 (quoting Carrington). 3 Senate Subcommittee Holds Hearing on Class Action Litigation Reform, 66 U.S.L.W. 2294 (U.S. Nov. 18, 1997). 557 \\jciprod01\productn\N\NDL\88-2\NDL201.txt 558 unknown Seq: 2 notre dame law review 4-FEB-13 12:46 [vol. 88:2 “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 4 Class Actions Seven Years After the Class Action Fairness Act: Hearing Before the Subcomm. on the Const. of the H. Comm. on the Judiciary, 112th Cong. 37 (June 1, 2012) (opening statement of Rep. John Conyers). Rep. Conyers spoke after the chair, Rep. Trent Franks (R. Ariz.) and the ranking member of the minority, Rep. Jerome Nadel (D. N.Y.) had spoken. A video of the hearing can be found at: http://judiciary.house. gov/hearings/Hearings%202012/hear_06012012.html. 5 See generally Richard L. Marcus, Confronting the Consolidation Conundrum, 1995 BYU L. REV. 879, 881 (1995). 6 See id. at 921–23. 7 See Proposed Amendments to the Federal Rules of Civil Procedure, 167 F.R.D. 559, 559–66 (1996). 8 See WORKING PAPERS OF THE ADVISORY COMMITTEE ON CIVIL RULES ON PROPOSED AMENDMENTS TO CIVIL RULE 23, vol. I–IV (Admin. Off. of U.S. Courts, May 1, 1997). 9 See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 597 (1997); Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999). \\jciprod01\productn\N\NDL\88-2\NDL201.txt 2012] unknown Seq: 3 4-FEB-13 still confronting the consolidation conundrum 12:46 559 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 enthusi10 See Amendments to the Federal Rules of Civil Procedure, 215 F.R.D. 159, 159–69 (2003). 11 Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified at 28 U.S.C. §§ 1453, 1711–15 (2006)). 12 For discussion, see generally Richard L. Marcus, Assessing CAFA’s Stated Jurisdictional Policy, 156 U. PA. L. REV. 1765, 1790 (2008). 13 AM. LAW INST., PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION (2009). 14 See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550–57 (2011) (overturning class certification in an employment discrimination case charging Wal-Mart with company-wide gender discrimination); Smith v. Bayer Corp., 131 S. Ct. 2368, 2375–82 (2011) (holding that the Anti-Injunction Act prevented a federal judge who had already denied class certification from enjoining the submission of a similar classcertification request to the West Virginia state courts on behalf of a very similar class); Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2184–87 (2011) (holding that plaintiffs (...truncated)