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Streamlining Class Actions: Active Case Management, Trial Plans, and Test Cases

Over the past 50 years since the institution of the modern version of Federal Rule of Civil Procedure 23, an entire market has been created for ‘‘class-action’’ lawyers, resulting in a handful of lawyers ultimately shepherding millions of claims through the Rule 23 grinder. Both the Rules Advisory Committee and Congress have struggled to rewrite Rule 23 or pass laws to curb the abuses of the class action vehicle. Simpler paths exist, however, for the courts to increase their role as a gatekeeper and return Rule 23 to its original procedural box.

This article proposes three tools federal courts could utilize immediately, within the confines of the current federal rules, to corral class action litigation, all of which could and should occur within the time frame of the first case management hearing.