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Flawed But Noble: Desegregation Litigation And Its Implications For The Modern Class Action, Davis Marcys

Florida Law Review

From the perspective of the present day, Rule 23 of the Federal Rules of Civil Procedure contains a difficult puzzle. After a court certifies a class pursuant to Rule 23(b)(3) in a money damages case, absent class members must receive notice and have a chance to opt out. Their counterparts in injunctive or declaratory relief suits prosecuted pursuant to Rule 23(b)(2) do not. As long understood, the class certification decision essentially equals a determination to bind all class members to the eventual judgment. Class members seeking money damages therefore have some control over their rights to sue before these rights …