Flawed But Noble: Desegregation Litigation and its Implications for the Modern Class Action

In this Article, I excavate the historical answer to the Rule 23 puzzle, one that suggests that the rule’s structure has little to do with theoretical distinctions between types of remedies. Far more important was the particular moment in American history during which the Federal Civil Rules Advisory Committee (the “1966 authors”) undertook the revision of Rule 23. To capture this moment, I reconstruct a neglected chapter in procedural history that stretches from 1938, when the first Rule 23 went into force, to the early 1960s, when the 1966 authors labored. I pay particular attention to Rule 23′s experience in desegregation litigation, which generated the sole doctrinal foundation for the class-wide res judicata that the remade Rule 23 would facilitate. Others have exhaustively chronicled the story of the legal campaign against Jim Crow, but until now, it has lacked this procedural chapter. Finally, I mine the surviving transcripts, memoranda, and letters the 1966 authors created as they revised Rule 23, in order to unearth their reasons for treating money damages and injunctive relief class members differently.