This Article was written for the purpose of revitalizing Rule 23 (b) (3) class actions following the rulings of Snyder, Zahn and especially Eisen IV. These three Supreme Court opinions were analyzed carefully in order to determine whether such effort is possible without any constitutional amendment. The principal innovation of the "spurious" class action in 1966 was the rule that, while formerly class members had to take affirmative steps to participate in the class, now they are bound by the class action unless they opt out. In the authors' view, this 1966 change of policy was sound, especially in the fields of consumer, environmental, and mass tort litigation, and it should be preserved. Without it, some of that litigation would be most difficult to handle.
Sidney B. Jacoby & Michael G. Cherkasky,
The Effects of Eisen IV and Proposed Amendments of Federal Rule 23,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol12/iss1/3