Structuring Multiclaim Litigation: Should Rule 23 Be Revised?
The question whether Rule 23 should be revised therefore is not susceptible to a global answer unless revision is stylistic only, limited to making the text more elegant – and even stylistic revision is likely to have some substantive impact, even if unintended. But if the argument for revision is that the Rule is in some respect deficient and should be made to work better, one must begin by answering the question how it should work. That in tum depends on defining the Rule’s purpose – what it is intended to accomplish.This paper examines briefly the purposes for which the Rule was adopted in 1966 and the purposes to which it since has been put. It then discusses how different purposes call for different class-action regimes, that is, how the regulation of a class action must reflect the objectives for which it is invoked. It concludes by considering how these differences may be best accommodated: whether by revising the Rule or by greater reliance on the existing structuring devices under the Federal Rules of Civil Procedure and improved practices under the Rule.