The Preservation and Rejuvenation of Aggregate Litigation: A Systemic Imperative

Arthur R. Miller
Faculty Co-Director
Center on Civil Justice at NYU Law

Keynote Address: The 2014 Randolph W. Thrower Symposium American Dispute Resolution in 2020: The Death of Group Vindication and the Law?

Forgive me if I begin on an autobiographical note. Approximately fifty-five years ago I was a young lawyer transitioning into academe when I became indentured--enthusiastically, I admit--to my professional father, procedure teacher, and summer employer following my second law school year, Professor Benjamin Kaplan, of the Harvard Law School. He was then the Reporter for the Advisory Committee on Civil Rules of the Judicial Conference of the United States. Through a series of byzantine circumstances, I became an informal assistant reporter. I was then the Associate Director of the Columbia Law School Project on International Procedure, and one of my assignments was to convince Ben to present to the Advisory Committee a group of rule revisions I had developed relating to transnational litigation, an obscure and arcane matter at the time. That proved a relatively easy sell, and the proposals navigated the statutory rulemaking process successfully. But the quid pro quo was my commitment to help Ben with what was then at the top of the Advisory Committee’s agenda—the revision of the Federal Rules relating to claim and party joinder.

The Rules, originally promulgated in 1938, had taken adventuresome, expansive steps in those precincts. But by the early 1960s it seemed necessary to update, clarify, and improve the effectiveness of the relevant Rules. The Committee had an overarching theme—that the liberal joinder of parties and claims was desirable in order to maximize their utility and further systemic efficiency. The clichés of the time were as follows: promote the resolution of like things in a single action (a.k.a. try like things together), improve judicial productivity, and, as I often put it colloquially in class, get more judicial bang for the judicial buck. And so I became a percipient witness and participant in the process that led to the 1966 amendments of the Federal Rules.

The complete revision of Rule 23 governing class actions was the theme’s centerpiece. Despite the rich historical roots of the procedure, it had been invoked infrequently during the quarter century following the original promulgation of the Federal Rules. There had been few substantive contexts in which to do so, adventuresome lawyering seemed to be absent at that time, and the Rule’s opaque and metaphysical text retarded its functionality. The Committee decided the Rule’s language had to be translated into plain English to make it user-friendly and elaborated to capture the better procedural features of the limited experience base that then existed.

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