The Bible depicts King Solomon resolving a dispute between two women who claimed to be the mother of the same child. In the pursuit of justice, King Solomon threatened to do the unthinkable- slice the child in two. Although severing children is not a recommended vehicle for justice, severing lawsuits is. In fact, in the class-action context, the "issue class" established by Federal Rule of Civil Procedure 23(c)(4) does just what King Solomon threatened-it severs litigation into pieces, allowing aggregate treatment of only certain issues in a given lawsuit. Residual issues are left to be determined in plaintiff-specific, follow-on suits. Although courts have generally accepted this tool despite normative academic debate over its utility, they have not established the tool's boundaries. Instead, courts haphazardly accept and reject attempts to create issue classes, causing uncertainty about when they should be used. Moving beyond the normative discussion of issue class utility and the textual evolution of Rule 23(c)(4), this Note establishes a framework for determining when issue classes are appropriate. Put another way, this Note moves to the next step of King Solomon's decision: Assuming that it is ever appropriate to split the baby, when and how should that be done?
Jenna G. Farleigh,
Splitting the Baby: Standardizing Issue Class Certification,
64 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol64/iss5/5