The History of the Modern Class Action, Part I: Sturm Und Drang, 1953–1980

This Article proceeds as follows. Part I describes the regulatory and adjectival conceptions and the dilemma of class action governance, some necessary table-setting before the history can start. Part II shows how hints of the regulatory and adjectival conceptions surfaced in the drafting history of Rule 23, conflicting with politicized accounts that make claims about authorial intentions to argue for one understanding of Rule 23 or the other. Part III turns to the politics of class actions in the 1970s.

As opposing camps formed, combatants’ arguments aligned around Rule 23’s normative divide, suggesting its importance to doctrinal evolution. Part IV elaborates on the governance dilemma lurking behind Rule 23’s politics, then shows how decision-makers used a pragmatic balancing strategy in each of Rule 23’s substantive areas to stabilize this litigation by the period’s end in 1980.