The Advisory Committee has signaled that the merits inquiry
is a "back burner" issue for the next Rule 23 amendments.
Perhaps they should nudge it towards the front.
The role of the merits inquiry at certification is of vital
interest to litigators, but less so to policymakers. The Rules 23
Subcommittee, in the report from its October meeting, pointed out
that, as far as it was concerned, the role of the merits inquiry
did not rate a place on the "front burner."
It's clear why it came up, however.
Plaintiffs (and their
advocates in academia) do not like the current state of the
merits inquiry. For a long time, plaintiffs (and courts that
favored certification) relied on a misreading of the Supreme
Court's
Eisen v. Carlisle & Jacqueline to blockade against
either (1) inconvenient facts or (2) costly, time-consuming dives
into certification-related issues. Since the Supreme Court
clarified the standard for merits inquiries in
Wal-Mart Stores, Inc. v. Dukes,
