A brief history of Rule 23.

• Position: Class actions - Federal Rules of Civil Procedure

The class action has its ultimate roots in the English Court of Chancery and the bill of peace. It was a practical rule of joinder where joinder was otherwise impractical. The American courts adopted the procedure in the 19th and early 20th centuries. Federal Equity Rule 48, in place from 1842 to 1912, provided for a class action, but, significantly, also provided that the "decree shall be without prejudice to the rights and claims of all the absent parties." In 1938, Rule 23 was included in the new Federal Rules of Civil Procedure. The rule was adopted with little fanfare or discussion. It divided class actions into three categories: the "true," the "hybrid" and the "spurious." These categories, with their infelicitous names and formalistic attributes, proved difficult to apply.

After almost 30 years of experience, the Advisory Committee entirely rewrote the rule in 1966, and it is that rule that we still use today.

The 1966 rule kept a three-part structure but the structure became functional: (b)(1) classes for situations in which necessary parties under Rule 19(a) were too numerous to be joined, including claims involving a common fund, (b)(2) classes for claims involving common injunctive relief, particularly intended for civil rights litigation, and, finally, (b)(3) class actions for damage based on predominant common issues. The 1966 rule provided new procedural protections, for example, by requiring notice to (b)(3) class members of certification, and, for all classes, notice of a proposed settlement. It provided that class members could be bound if they did not affirmatively opt out of (b)(3) damage class actions.

In adopting the "opt out" approach, the committee apparently had in mind small claim, consumer class actions in which no one class member would have a sufficient interest to litigate an individual claim and in which the forces of inertia might be greater than a potential class member's desire to participate, given the small stakes involved.

The 1966 rule also clarified that any judgment would bind the members of the class in all certified class actions.

It is not entirely clear what the committee of 1966 expected. Professor Arthur Miller, who was involved with the work of the committee at that time, tells us that "Nothing was in the committee's mind.... Nothing was going on. There were a few antitrust cases, a few securities cases. The civil rights legislation was then putative. ... And the rule was not thought of as...