Marcus on Desegregation Litigation and the Class Action

Flawed But Noble: Desegregation Litigation and its Implications for the Modern Class Action has just been posted by David Marcus, University of Arizona - James E. Rogers College of Law.  It is forthcoming in the Florida Law Review.  Here's the abstract:

As revised in 1966, Rule 23 of the Federal Rules of Civil Procedure requires that class members in money damages suits receive notice and an opportunity to opt out. Class members in injunctive relief suits do not enjoy these procedural rights. No consensus explanation for this difference, which implicates the class action’s constitutional foundation, has prevailed. Using previously-overlooked primary sources, I provide a history of both class action doctrine before 1966 and the labors of the authors of the 1966 revision to determine why they structured the rule the way they did. The answer is startling. No purely procedural, trans-substantive justification exists to explain why they eschewed procedural rights for injunctive relief suits. Rather, the 1966 authors did so to assist plaintiffs prosecuting desegregation suits in the Deep South. The substance-specific origins of at least part of Rule 23 call into question foundational aspects of current class action doctrine.