Monday, July 2, 2018

Murphy on Rule 23 in American Legal Thought

We’ve previously noted articles on the drafting of the Federal Rules of Civil Procedure’s provision on class action by Malveaux, Engstrom, and Marcus.  Now comes Competing Ideologies at the Formation of the Federal Class Action Rule: Legal Process Versus Legal Liberalism, published in the Drexel Law Review 10 (2018): 389-444, by Rye Murphy, a civil litigator in Oakland, CA, who studied with Reuel Schiller at U.C. Hastings:
In 1966, the Supreme Court promulgated a new procedural rule for class actions in federal court. Amended Rule 23 was a considerably different mechanism than its predecessor. It was more inviting of class action litigation but also incorporated new mechanisms for protecting class members. This was not an unreasonable trade-off, and one can imagine a group of rule-makers—elite academics, federal judges, prestigious attorneys—peaceably striving to write a rule that could balance individual class members’ interests with the interests of the class as a whole. But this is not what happened. The Rule 23 of today is an accord between two rival sects of mid-century legal thinking. The Legal Process tradition considered federal courts one of many institutions in society for mediating conflict, though the one uniquely capable of employing neutral reasoning to do so. Harvard Law School professors Benjamin Kaplan and Albert Sacks argued that a flexible, robust class action rule was needed to solve the complex, large-scale problems American society was increasingly facing. Attorney John P. Frank, a litigator and civil libertarian, fought vigorously against anything but the narrowest rule. Legal liberalism, Frank’s camp, tended to view federal courts in their capacity to enforce substantive principles, and Frank argued that the Constitution and American legal tradition forbade a rule that might deprive an individual of the opportunity to litigate her own interests. It was a duty of the rule-maker, for Frank, not to enact a rule that would violate what he identified as a principle of individualized adjudication. The balance the current rule strikes, including the opt-out mechanism, is a product of their compromise.

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