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A district court has broad discretion in deciding whether a suit may be maintained as a class action. Variations on this phrase populate the class action jurisprudence of the federal courts. The power of the federal courts to exercise discretion when deciding whether to permit a suit to proceed as a class action has long been treated as an elemental component of a representative proceeding. It is therefore cause for surprise that there is no broad consensus regarding the nature and definition of this judicial discretion in the certification process. The federal courts have not coalesced around a clear or thorough exposition of the question, and the scholarly literature has not provided a sustained analytical treatment. This article undertakes to provide that treatment.

The recent decision of the Supreme Court in Shady Grove Orthopedic Associates v. Allstate Insurance Co. makes the need for a systematic examination of these matters more salient. In one of the few passages that garnered a majority of an otherwise fractured opinion, the Court used language that could be read to deprive district courts of any discretion when deciding whether certification is appropriate in a given case -- a holding that would upend forty-five years of practice under modern Rule 23. Such a ruling would be revolutionary, and a careful examination of the majority’s discussion of Rule 23 in Shady Grove makes clear that the ruling calls for no such revolution.


Federal Rules of Civil Procedure, 1966 amendments, Rule 23(b)(2), Rule 23(b)(3), complex litigation, class actions and certification, federal judiciary, SCOTUS, legal doctrine, appellate review, abuse of discretion, judicial case management, procedural versus substantive law, Shady Grove

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University of Pennsylvania Law Review

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162 U. Pa. L. Rev. 1897 (2014).