- Our findings show that, contrary to conventional expectations, in the period since Wal-Mart and Comcast, plaintiffs have been winning certification appeals more frequently than they were formerly, and Rule 23(f) contributed to this recent success. This growth in pro-certification outcomes occurred on both Democratic- and Republican-Majority panels.
- We also find that final-judgment appeals involving (b)(3) issues are common among appeals, which casts doubt on the conventional wisdom concerning the class certification decision as the “death knell” for plaintiffs or defendants in such cases.
- We find significant variation over time in appeal outcomes under Rule 23(f), with defendants far more successful than plaintiffs prior to Wal-Mart and Comcast, and relative parity after. This variation suggests the hazards of generalizing about operation of that rule from experience in any particular period. Our models also show that, for reasons about which we can only speculate, interlocutory appeals since around 2000 have elicited more ideological voting behavior by judges, leading to greater polarization.
Burbank, Stephen B. and Farhang, Sean, Class Certification in the U.S. Courts of Appeals: A Longitudinal Study (January 16, 2021). Law and Contemporary Problems, Forthcoming, U of Penn Law School, Public Law Research Paper No. 21-03, Available at SSRN: https://ssrn.com/abstract=3769477
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