February 15, 2017

In this article, Jenner & Block Partner Jeremy M. Creelan discusses the future of the US Supreme Court’s class certification jurisprudence.  Mr. Creelan explains that the late Justice Antonin Scalia and Justice Ruth Bader Ginsburg had different views regarding the commonality and predominance requirements of Federal Rule of Civil Procedure 23(a)(2) and (b)(3).  Now, with Justice Scalia’s passing, President Trump has nominated Judge Neil Gorsuch to take his place.  But, Jeremy observes, there are “surprisingly few clues” to indicate whether Judge Gorsuch will follow in Scalia’s footsteps in this area.  Mr. Creelan then examines how Justices Scalia and Ginsburg ruled on certain cases and analyzes the only class certification case in which Judge Gorsuch authored the court’s majority opinion.  Law clerk Nicolas G. Keller contributed to the article.