Some Joy in Whoville: Rule 23(f), A Good Rulemaking


Linda S Mullenix

69 Tennessee Law Review 97


My colleagues suggest that various Federal Rules of Civil Procedure are problematic, troublesome, and in need of remediation. As fine scholars and rulemakers, all have insightful suggestions concerning how to fix these rules. Most likely many federal practitioners will agree with them, although perhaps with differing approaches to rule revision. Nonetheless, my colleagues' concerns amply justify the continued existence of the Advisory Committee on the Federal Rules of Civil Procedure.

Amid this churlishness, I would like to suggest that there is some reason for Joy in Whoville: amended Federal Rule of Civil Procedure 23(f). As we approach the third anniversary of this new provision, I believe that we may tentatively venture that this was a good rulemaking.

It is with some trepidation that I suggest that the Advisory Committee has indeed accomplished a good rulemaking. First, such an assessment requires a theoretical construct setting forth what constitutes a good rulemaking. Second, nitpickers and naysayers abound, and no one has ever made a stellar academic career by writing about non-problems. We are trained to find fault. The inability to find something wrong or problematic renders the commentator glib (or worse, dull). Third, things that mostly work well do not provide the subject matter for the keen application of critical insight. Finally, it is audacious to suggest that a rule revision is working well three years after implementation, when subsequent events may prove one manifestly wrong.

As is well known, the Federal Rules of Civil Procedure are amended at a glacial pace. It often takes years for the consequences of amendments, both intended and unintended, to become clear. Hence, history and prudence suggest caution in prematurely pronouncing good tidings about rule revisions.With approximately three years of experience with Rule 23(f), it is possible to venture some tentative conclusions about the experience and efficacy of the new provision.

Importantly, the United States Court of Appeals for the Fifth Circuit has held Rule 23(f) to be a valid and constitutional rulemaking.A quick reprise of the objections to proposed Rule 23(f) suggests that the actual experience of Rule 23(f) has not yet resulted in a parade of horribles. Its critics may have overstated their case. There is simply no empirical evidence to suggest that Rule 23(f) appeals have increased costs and delays of class action litigation beyond those that otherwise would have been incurred previously through § 1292(b) or mandamus review. There is no evidence that any parties have been injured or prejudiced by the ten-day period in which to pursue an appeal or by the stay provision. There is no evidence of any deleterious consequences of double briefing. There is no evidence that the provision favors either defendants or plaintiffs.

Among the most serious objections to proposed Rule 23(f) was its lack of guidelines or standards for appellate courts. A related criticism suggested that the amended rule would lead to the development of certification jurisprudence based on extreme cases accepted for review. Appellate courts have addressed the former problem; the latter criticism has not been borne out by the few cases accepted for review.

At a minimum, it is premature to conclude that Rule 23(f) appellate decisions, on the merits, have modified class action jurisprudence in any significant or noticeable way.One might globally criticize the fact that three appellate circuits have articulated three sets of standards for review. But upon closer scrutiny, those appellate standards are basically similar, allowing for discretionary interpretation and application. Those standards do not seem to be grossly inconsistent or to provide an unfair advantage, and it seems far-fetched that litigants would consciously choose to pursue a class action in a particular circuit in order to be able, prospectively, to take advantage of a certain Rule 23(f) appellate standard.

Law professors seem the cohort most likely to realize that Rule 23(f) has reintroduced the death-knell concept into the analysis for interlocutory appellate review. The variety of factors courts used for analysis in death-knell situations, prior to that doctrine's demise in Coopers & Lybrand, have been resuscitated in the Advisory Committee Note and in the appellate courts.

It remains to be seen whether the death-knell doctrine lives again to inspire such a degree of doctrinal untidiness as to induce a new death knell for the death-knell doctrine. Irony abounds, and history may repeat itself.Finally, some may be troubled that at least one appellate court has announced that litigants may have their appellate cake and eat it, too. Litigants may appeal class certification decisions under Rule 23(f), 28 U.S.C. § 1292(b), or mandamus, if they choose.

However, notwithstanding this plethora of appellate routes, evidence suggests that federal courts are not yet experiencing a glut of class certification appeals.In the history of federal rule amendments, the implementation of Rule 23(f) has largely been a non-event, to date. Rule 23(f), it turns out, has been something of a yawn. The amended rule may simply fix a prior problem. Rule 23(f) may simply be a good rulemaking. As such, Rule 23(f) may deserve as much attention as amended Rule 11.

Full Citation

Linda S. Mullenix, Some Joy in Whoville: Rule 23(f), A Good Rulemaking, 69 Tennessee Law Review 97 (2001).