Class Problem!: Why the Inconsistent Application of Rule 23’s Class Certification Requirements During Overbreadth Analysis Is a Threat to Litigant Certainty

By David I. Berman

Abstract

Rule 23 of the Federal Rules of Civil Procedure is home to the class action
device. It is well-documented that this rule significantly impacts our legal
system. As a result, the need for its effective utilization has been apparent
since its introduction. Despite this, federal courts have inconsistently
applied the rule during their analyses of overbroad class definitions at the
class certification stage. Consequently, parties involved in such litigation
have been exposed to unnecessary costs and the potential for forum
shopping.

Nonetheless, this judicial inconsistency has gone largely unrecognized
because it does not implicate the results of class certification. Hence, courts
here must first recognize the general need for uniformity before a precise
standard for overbreadth analysis may be chosen. Only then, this Note
argues, may the aforementioned detrimental consequences be avoided.