The Ironic History of Rule 23

Abstract

Fifty years ago, the Federal Rules of Civil Procedure were amended to create the modern money damages class action, Rule 23(b)(3). The 1966 amendment changed the money damages class action from one where class members had to opt in to be included to one where all class members were included unless they opted out. No change to the original Federal Rules has been a greater boon to plaintiffs and a greater burden to the business community. But when (b)(3) was proposed, almost no one worried the rule would be too friendly to plaintiffs. Rather, the greater worry expressed at the time was the rule would be too friendly to business. In this article, I recount the ironic history of (b)(3).

Keywords: Class Actions, History, Federal Rules, Rulemaking, Litigation