In the wake of Wal-Mart Stores v. Dukes, Judge Posner certified a class of African-American brokers who claimed racial discrimination solely for the purpose of determining whether a pair of compensation policies were discriminatory. Since the publication of that opinion--McReynolds v. Merrill Lynch--the topic of how to deal with the possibility of "issue certification" under Rule 23(c)(4) has become a hot topic for practitioners.
Kansas law professor Laura J. Hines has long written about the issues surrounding issue certification. And her latest paper, The Unruly Class Action, contains her latest and best effort at explaining a section of Rule 23 that has confounded lawyers and judges alike for decades.
Much of the article is devoted to a comprehensive (and comprehensible) analysis of the various approaches to interpreting Rule 23(c)(4). Professor Hines's preferred interpretation is based in both structure and the "legislative" history of the Rule:
Over fifty years after Benjamin Kaplan described it as making a “perfectly obvious point,” (c)(4)’s clarifying purpose has become roundly discounted as improbably superfluous to Rule 23. Instead, (c)(4)’s language has widely come to be understood as offering a flexible Rule 23 alternative to the strict demands of (b)(3)’s predominance test. But, as close examination of the Committee’s (c)(4) Note confirms, this more ambitious role for (c)(4) is utterly ahistorical. Moreover, such an interpretation significantly undermines the Committee’s painstakingly calibrated construction of the (b)(3) class action, regarded as the major “advance” of its 1966 revisions. The formulation of that highly controversial new category of class action occupied the lion’s share of the Committee’s deliberative attention, as they labored to create a daring new species of class action to respond to the complexities of modern litigation. As Rule 23’s structural design reflects, the Committee intended each of (b)(3)’s constituent parts to provide important “safeguards” against potential abuse of the new class action.
(Emphasis added, internal footnote omitted.)
In other words, Rule 23(c)(4) does not authorize the creation of "issue" class actions, but instead regulates the ways in which the Court may employ Rule 23(b)(3).
There is much for defendants to use in this article. The overall argument against issue certification is very attractive. Equally useful is the deep-dive analysis into both the history of Rule 23 and the various policy arguments for and against issue certification, as well as the extensive citation of sources from both case law and academia.
I know I'm on record as complaining about the general quality of class action scholarship; specifically that they tend to be under-researched and alien to actual lawyers' needs. If more academics wrote about emerging issues the way Professor Hines did, I'd be happy to eat my words.