Earlier this year, it became clear that the
Advisory Committee on Civil Rules is
considering possible amendments to Rule 23. As Tony
Lathrop's post summarizes, the "front burner"
issues at the moment largely concern class action
settlements, focusing in on possible limits to cy
pres relief and greater clarity on what Rule 23(e)'s
"fair, reasonable, and adequate" criteria mean.
I think these are great ideas for possible amendments.
I'm certainly on record about the possible
problems
that
arise from cy pres relief, and I've also
written about the proliferation of settlement standards that
arise from Rule 23(e)'s vague language.
But, if we're thinking about amending Rule 23 again, I have
to ask, why be cautious? Why not really think about the ways
in which class action litigation could be improved? The
Advisory Committee is already grappling with several weighty
issues, including the runaway
cost of discovery, that have large class-action
components.
