2016 University of Pennsylvania Law Review Symposium

1966 and All That:
Class Actions and Their Alternatives After Fifty Years

November 11‐12, 2016 Philadelphia, PA

Organizing Faculty: Stephen Burbank, Jonah Gelbach, and Tobias Wolff

In 1966, the Supreme Court promulgated amendments to Rule 23 of the Federal Rules of Civil Procedure — the class action provision — that proved to be the most consequential use of its civil rulemaking authority since the promulgation of the original rules in 1938. The 1966 amendments to Rule 23 replaced a little‐used, rigid, hidebound provision with a powerful, flexible, open‐ended tool for addressing mass harms affecting large numbers of people. The amended Rule unleashed unprecedented litigation power that reflected commitment by Congress and the Court to facilitate private enforcement of statutory and constitutional rights. Interest groups were forced to confront the power of procedure, and civil procedure in the federal courts became politicized as never before.

Fifty years later, the central dilemma posed by the class action remains unsolved: how to use litigation to carry into effect important substantive policies for large numbers of injured individuals while preserving fairness to defendants and ensuring that the rights of claimants are not improperly compromised. The landscape on which that struggle plays out has expanded. In response to increasingly restrictive federal class action jurisprudence and the expansion of federal jurisdiction in the Class Action Fairness Act of 2005, lawyers for plaintiffs pivoted to non‐class alternatives, developing mass inventories of individual claims in higher‐value disputes that gave them much of the leverage of a class action with none of the constraints. Defense lawyers, in turn, have made increasing use of the federal Multi‐District Litigation statute (MDL), a potent consolidating tool that blunts the tactical options available to plaintiffs and can enable defendants to control the momentum of the litigation process. The federalization of class actions through CAFA has only increased the power of the MDL.

The University of Pennsylvania Law Review will take the occasion of the fiftieth anniversary of the 1966 Rule 23 amendments to explore the future of the class action and its alternatives. The symposium will dedicate panels to the doctrinal and litigation history that has produced the present landscape; the current state of class litigation; alternatives to the class action; and questions of policy and theory that cut across both class actions and the alternatives. Although organized around the discussion of papers by scholars selected for their expertise in the field, the symposium will integrate the commentary of some of the most influential judges in the country, and there will be ample time for discussion with those in attendance, who are expected to include leading practitioners, interested students, and other members of the bench and the academy.

Please direct all questions to Andrew D’Aversa at symposium@pennlawreview.com.