Title: Preclusion, Due Process, and the Right to Opt Out of Class Actions
Abstract: Among the current controversies in class action law is the question of when cases are properly classified as (b)(2) as opposed to (b)(3) class actions. Much rides on the distinction, particularly since the manageability requirement of Rule 23(b)(3) may frustrate the certifiability of claims. Even the classic forms of class actions, such as the employment discrimination disparate impact claim, may be caught up in these debates, as evident from the split between the Fifth Circuit in Allison and the Second Circuit in Robinson.