The concept of ‘predominance’ in Federal Rule of Civil Procedure 23(b)(3) has been a hot topic in legal debates, especially regarding class actions. This rule states a case may proceed as a class action when “questions of law or fact common to class members predominate over any questions affecting only individual members.” Predominance, as specified here, has been interpreted in a way often contrasting its plain meaning.
Such interpretation implies that all, or most, issues of law and fact must be common across class members. This contradicts the original intent of Rule 23(b)(3). Notably, Benjamin Kaplan, reporter to the 1966 U.S. Judicial Conference Advisory Committee on Civil Rules, stated “The reform of Rule 23 was intended to shake the law of class actions free of abstract categories and to rebuild the law on functional lines responsive to those recurrent life patterns which call for mass litigation through respective parties.”
The rule’s reconstruction was aimed at promoting two principles: reducing duplicative litigation, and providing a means of redress for groups without individual strength to bring their opponents to court. As articulated in the case of Phillips Petroleum v. Shutts, Rule 23(b)(3) permits plaintiffs to pool claims making it economical where individual litigation would not be so.
Therefore, the jurisprudence of predominance within Rule 23(b)(3) should return to align with the rule’s goal of efficiency and equity in mass litigations. These concepts have been explored in depth by Adam J. Levitt, renowned legal expert, in his article titled Arguing Class Actions: Returning to the Plain Meaning of ‘Predominance’ on the National Law Journal.