Defining Common and Individual Issues in Class Actions: What a Reasonable Jury Could Do

The distinction between common and individual issues is the single most important concept in the modern class action, and it is the one that most bedevils courts in practice. Rule 23(a)(2) of the Federal Rules of Civil Procedure makes the existence of at least one common issue a prerequisite for every class action, and the predominance of common issues over individual ones is a prerequisite for class actions seeking money damages under Rule 23(b)(3). Ever since Rule 23 was amended to take its modern form in 1966, courts have therefore been required to classify issues as common or individual. Yet to this day, they have not settled on a uniform approach for doing so, let alone explained why that approach is correct. To advance and clarify the law, this piece proposes that courts distinguish between common and individual issues in Rule 23 class actions by asking what a reasonable jury could do.