Geoffrey C. Hazard, Jr. · May 2014
82 GEO. WASH. L. REV. 990 (2014)
Considerable complication and difficulty has been experienced in
Rule 23 litigation because of uncertainty about the authority of the
court to make fact determinations, particularly in connection with the
issue of class certification. The assumption has been that the Supreme
Court’s pronouncements in Beacon Theatres, Inc. v. Westover properly
define and restrict the authority of a judge in equity litigation to
determine issues of fact. This position should be reexamined
and modified.
