A Rule Change Is, After All, a Rule Change: Rule 23 Settlement Approval and the Problems of Consensus Rulemaking

Past efforts by the Advisory Committee on Civil Rules to substantially reform Rule 23 have been met with such controversy that more recently, the Advisory Committee has elected to pursue more modest reforms. The new criteria have been widely understood as introducing modest changes and have even been argued by some to have done nothing more than codify existing circuit practice. However, two circuits have sharply diverged in their interpretation of what the new Rule 23(e)(2) requires, calling into question whether the changes are so self-evidently modest and dashing the goal of unifying circuit practice.