Overreaching, Underreaching, And The Supreme Court

In the past few years, Professor Mark Moller of DePaul University Law School has proven to be one of the most thoughtful critics of modern class action law in the legal academy. While most commentators take on class action decisions from either a pro-plaintiff or pro-defendant standpoint, Professor Moller appears intent on evaluating these opinions according to the criteria set out by the arguments they advance. From that standpoint, he pointed out that class action defendants' "originalist" arguments about due process were influenced heavily by a no-longer-favored line of Supreme Court cases. And now, as he argues in his recent article Common Problems for the Common Answers Test: Class Certification in Amgen and Comcast, the Supreme Court has applied its "common answers" test for class certification in ways that may not accord with the intent of its original author, the late Professor Richard Nagareda. As Professor Moller argues: