Richard Marcus · February 2011
79 GEO. WASH. L. REV. 324 (2011)
Judges have always been gatekeepers, but their gatekeeping tasks have changed a good deal over time. Gatekeeping is central to litigation aggregation, and it is thus not surprising to find that it is also central to the Principles of the Law of Aggregate Litigation. The central gatekeeping question, of course, is whether aggregation should occur and, if so, how broadly. Until recently federal judges have approached their gatekeeping tasks in deciding whether to certify with one hand tied behind their backs because they have regarded the Supreme Court’s 1974 Eisen decision as forbidding consideration of anything bearing on the merits of the case at that point. This limitation on certification scrutiny has been questioned almost from the time Eisen was decided, and it has recently been jettisoned, in part due to the 2003 amendments to Rule 23.
Part I begins by noting the longstanding role of judges in fashioning and approving aggregation of litigation, and then Part II examines the 1966 amendment to Rule 23 and the constricted attitude toward certification that resulted from the Eisen decision against that background. Part III then contrasts that constricted gatekeeping role in regard to class certification with the steadily broadening gatekeeping required of judges in a variety of areas in which they are asked to perform tasks much further from traditional adjudication—including the handling of important aspects of class action practice—and Part IV finds that the recent embrace of merits scrutiny in relation to class certification is something of a “back to basics” development. Finally, Part V reflects briefly on where this development may lead.
