This discussion is adapted from comments which Lawyers for Civil Justice, a nationwide coalition of defense and corporate counsel working to improve the civil justice system, requested that I submit to the Civil Rules Advisory Committee (Advisory Committee) of the Judicial Conference of the United States (Judicial Conference) regarding class action reform and pending, proposed amendments to Rule 23 of the Federal Rules of Civil Procedure (FRCP). In those comments, I supported the adoption of the proposed amendments to Rule 23 with regard to overlapping class actions and argued for even more sweeping and fundamental revisions of federal class action jurisdiction and procedure.

It is my position that modern class action procedure, on both jurisdictional and structural levels, is in need of significant retooling in order to prevent serious harm to the attainment of many of the most fundamental goals underlying the federal procedural system. These goals include: (1) making the adjudicatory system as efficient as reasonably possible; (2) avoiding use of the litigation system for purposes of harassment or coercion; (3) assuring individuals a meaningful opportunity to control both the choice whether to litigate in order to vindicate their private rights and the ability to control the conduct of that litigation if the choice is made to sue; and (4) assuring that the FRCP do not alter substantive law in a manner prohibited by the Rules Enabling Act (REA).¹ In one way or another, the current method of adjudicating class actions has dangerously undermined the procedural system's pursuit of each of these vitally important social, political, and (in certain respects) constitutionally grounded ends.