What the rulemakers should do about class actions

In recent years, Supreme Court decisions have narrowed the circumstances in which class actions can be maintained under Federal Rule of Civil Procedure 23. In "Walking the Class Action Maze: Toward a More Functional Rule 23," law professor Robert Bone says that because these Supreme Court decisions are interpretations of the federal rule, the rule can be changed to make the Rule 23 more workable. Here's the abstract:

roughly the past fifteen years, the Supreme Court and lower federal
courts have limited access to class actions. Many of the more
restrictive decisions — such as Amchem Products, Inc. v. Windsor, Ortiz
v. Fibreboard Corp., and Wal-Mart Stores, Inc. v. Dukes — are based on
interpretations of Rule 23 and thus fall within the power of the
Advisory Committee and rulemaking process to modify. This Article,
which is a symposium contribution, proposes revisions to Rule 23
designed to deal with some of these decisions and to make the class
action a more pragmatic and functional device. It focuses on two areas:
(1) the constraints imposed by fairness to absentees and due process,
and (2) the problem of strategic abuse associated with frivolous and
weak class action filings. Responding in large part to concerns
about fairness, due process, and legitimacy, the Supreme Court has
adopted a vague class “cohesion” requirement (Amchem), an interpretive
principle tethering the class action to outdated precedent (Ortiz), and a
strong indivisibility condition for (b)(2) certification (Wal-Mart).
The problem is that none of these limitations is based on a clear
understanding of what fairness to absentees requires or how the
individual day-in-court right can be reconciled with representative
litigation. As a result, the Court’s decisions are poorly reasoned and
its restrictions inadequately justified. The Advisory Committee should
do what it can to correct these deficiencies, and this Article suggests a
promising approach. Furthermore, in response to concerns about the
strategic filing of frivolous and weak class action suits, federal
judges have tightened the standard of proof for certification. But they
have done so without general agreement on the normative stakes, and the
result is a collection of inconsistent and relatively vague standards.
The Advisory Committee should clarify the law in this area by specifying
a standard of proof in the text of Rule 23. This Article suggests a
useful framework for doing so. Finally, the Article briefly
discusses some potential obstacles to Committee action, including the
advisability of overruling recent Supreme Court decisions, potential
constitutional problems, Rules Enabling Act constraints,
transsubstantivity objections, and the ever-present risk of political

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