The Advisory Committee begins re-consideration of rule.

• Position: Class actions - Federal Rules of Civil Procedure

There have been several phases in the committee's work, although many continuing themes. At the beginning, the committee developed a comprehensive re-draft of the rule. In 1992, Judge Pointer, chair of the committee, relying on a 1986 proposal from the Litigation Section of the ABA, prepared a revision that did away with the three part (b)(1), (b)(2), and (b)(3) classification, provided for opt-in classes at the court's discretion, and provided that exclusion from the class could be conditioned upon a prohibition against institution or maintenance of a separate action. Notice was made more flexible such that sampling notice might be permitted depending on the circumstances.

This far-reaching draft was presented to the [Judicial Conference] Standing Committee [on Rules of Practice and Procedure] but then withdrawn on the Standing Committee's advice that further consideration would be required before such a sweeping proposal could be published for public comment. In the years since that time, we have engaged in that further consideration and can now appreciate how prescient and sophisticated that first effort was.

The committee then began the painstaking and careful inquiry into class action practice in which we are still engaged. The new chair of the committee, Judge Higginbotham, pioneered the investigatory model that the committee continues to use to good effect whenever it considers a complex issue. The model combines multiple informal opportunities for involvement by interested academics, members of the bar and bar organizations, with targeted empirical work. Thus, the committee was educated at several class action and mass tort conferences, drawing together academic experts and experienced practitioners. The Federal Judicial Center undertook an empirical study of federal class actions. See [Thomas E.] Willging, [Laurel L.] Hooper & [Robert J.] Niemic, Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules (Federal Judicial Center 1996). The reporter circulated a variety of proposals informally to gather guidance from members of the bar. Eventually, several different proposals were published, resulting in extraordinarily helpful comment from practitioners and others.

The committee first turned to the all important certification decision in (b)(3) class actions. The committee was concerned that the certification decision was the critical issue in class action litigation, and...