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Class Actions Products Liability United States Supreme Court

Class Certification

Will Gorsuch Pick Up Where Scalia Left Off?

For two decades leading up to Justice Antonin Scalia's death, the U.S. Supreme Court's class certification jurisprudence took shape as a dialogue between Justices Scalia and Ruth Bader Ginsburg over the commonality and predominance requirements of Federal Rule of Civil Procedure 23(a)(2) and (b)(3), respectively. Will this continue if Gorsuch is confirmed to the Court?

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For two decades leading up to Justice Antonin Scalia’s death, the U.S. Supreme Court’s class certification jurisprudence took shape as a dialogue between Justices Scalia and Ruth Bader Ginsburg over the commonality and predominance requirements of Federal Rule of Civil Procedure 23(a)(2) and (b)(3), respectively. In broad strokes, Ginsburg favored granting significant discretion to district judges to determine whether, based on the unique facts and pragmatic concerns of each case, a class action was the appropriate vehicle for resolution. By contrast, Scalia favored requiring putative class plaintiffs to meet an ever-increasing set of “bright line” rules in order to have a class certified. Fundamentally, this debate reflected their views on the desirability of class actions as a means of dispute resolution.

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