Marcus on Looking at the Merits in Class Certification

Rick Marcus has published an article called "Reviving Judicial Gatekeeping of Aggregation: Scrutinizing the Merits on Class Certification," 79 Geo. Wash. L. Rev. 324 (2011). Rick notes that scrutiny of the merits during the decision about whether to certify a class has been making a comeback. The 1974 case of Eisen v. Carlisle & Jaquelin disapproved such scrutiny, but the 2003 Amendments to Rule 23 have in part brought it back. Rick ultimately views this as something of a "back to basics" development, saying that "In a number of ways, Eisen has seemed a wrong turn in class action law . . . ." While Rick views the development generally positively, he warns that "it nonetheless comes with potential consequences that may unnerve some," most prominently that "there will be even more settlement-class than litigation-class certifications."