This article proceeds as follows. Part I describes the historical background of the modern class action rule in relation to civil rights. More specifically, this Part reveals how the drafters deliberately crafted the rule to address desegregation obstructionism. Part II analyzes Supreme Court jurisprudence interpreting Rule 23(b)(2) over the course of the last fifty years, identifying three primary periods in which the pendulum has swung: from a heyday of liberal class certification for broad injunctive relief for newly created rights; to a heightened critique and retraction of class certification; to a complex gauntlet of contemporary barriers involving evidentiary hurdles, contractual restrictions and access limitations. Part III critiques modern class action jurisprudence and concludes that it fails to sufficiently fulfill the drafters’ intent of creating an efficient and just procedural mechanism for pursuing systemic racial equality. The article recommends a contemporary judicial interpretation more anchored to the bone, rooted in Rule 23(b)(2)’s strong civil rights mission.
Suzette M. Malvaux, The Modern Class Action Rule: Its Civil Rights Roots and Relevance Today, 66 KAN. L. REV. 325 (2017).