The Failed Superiority Experiment
47 Pages Posted: 11 Mar 2016 Last revised: 19 Apr 2016
Date Written: March 10, 2016
Abstract
Federal law requires a class action be “superior to alternative methods for fairly and efficiently adjudicating the controversy.” This superiority requirement has gone unstudied, despite existing for half a century. This Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card — subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges should rely on existing yet currently underutilized case management tools and abandon the failed superiority experiment.
Keywords: class actions, superiority, civil procedure, consumer protection, antitrust, Rule 23(b)(3)
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