The Failed Superiority Experiment

Authors

Christine P. Bartholomew, University at Buffalo School of LawFollow

Document Type

Article

Publication Date

2016

Rights

Abstract

Federal law requires a class action be “superior to alternative methods for fairly and efficiently adjudicating the controversy.” This superiority requirement has gone unstudied, despite existing for half a century. This Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card—subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges should rely on existing yet currently underutilized case management tools and abandon the failed superiority experiment.

Publication Title

Vanderbilt Law Review

First Page

1295

Last Page

1348

Recommended Citation

Christine P. Bartholomew, The Failed Superiority Experiment, 69 Vand. L. Rev. 1295 (2016).
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/28