Defendant Class Actions Under Rule 23(b)(2): Resolving the Language Dilemma
Taylor, David H.
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This Article explores the language dilemma created by the provisions of subsection (b)(2). After setting out the precise nature of the language dilemma, the Article discusses the arguments of those courts that have denied subsection (b)(2) defendant class certification based upon a literal reading of the subsection's language, and the arguments of those courts that have used various devices, some involving quite contorted reasoning, to overcome the language dilemma based upon the functional need for defendant class certification under subsection (b)(2). 9 The Article asserts that neither side has developed a persuasive argument for its position because neither side has engaged in the thorough analysis grounded in principles of statutory construction that is necessary to determine the proper interpretation of Rule 23(b)(2). The Article then offers such an analysis, in which it demonstrates that defendant class certification is provided for under Rule 23(b)(2).