Patrick Murphree (Jacksonville University) has posted Ascertaining Ascertainability (Louisiana Law Review, Volume 86, No. 2, pp. 365-403) on SSRN. Here is the abstract:
Led by the Third Circuit, many federal courts enforce a so-called “ascertainability” requirement that must be met before a court may certify a class action. This Article develops a typology of the Fifth Circuit’s uses of the term. The Article proceeds in three parts. First, it briefly addresses the development of an ascertainability requirement and its unstable place within the class certification analysis. The Article then identifies four functions that ascertainability appears to serve in the Fifth Circuit: precision, objectivity, anticircularity, and administrability. The Article argues that using the requirement to ensure that certified classes have precise boundaries and membership defined by reference to criteria other than individuals’ subjective experiences are defensible as necessary conditions for the remainder of Rule 23 to operate as designed, but that using ascertainability to reject so-called fail-safe classes or to demand a showing that class members can be easily identified ex ante runs counter to textualist commitments otherwise maintained by the Fifth Circuit when interpreting the Federal Rules of Civil Procedure. The final Part expands its focus beyond the Fifth Circuit to reflect on two systemic and doctrinal concerns. First, imposing atextual requirements enables doctrinal drift. Second, requirements without textual anchors invite courts to alter the analytical sequence prescribed by statutes and procedural rules. These concerns have become more pressing in light of recent Supreme Court decisions.
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