In 1967, Judge Marvin Frankel of the United States District Court for Southern District of New York said of the then newly revised federal class action rule, Fed. R. Civ. P. 23, that it "tends to ask more questions than it answers." Professor Benjamin Kaplan, reporter for the new civil rules, predicted that generation or so would pass before the scope, the virtues, and the vices of the new Rule 23 would be fully appreciated. But the 1973-74 Supreme Court term, with its significant class action decisions, has accelerated that process. Now, only eight years later, we know that revised Rule 23 constitutes a rather uncertain weapon for consumers with small claims. The Supreme Court has blunted its edge. Whether Rule 23 can be honed into a more useful tool remains an issue for Congress and for future class action litigants.
Peter H. Schuck & Marsha N. Cohen,
The Consumer Class Action: An Endangered Species,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol12/iss1/4