Abe Fortas

“ I cannot find any meaningful sense in which the aggregation doctrines in class action cases should be any less subject to re-evaluation in the light of new conditions because Congress in 1958 re-enacted the jurisdictional amount statute in raising the dollar amount required. ”

“ Indeed, the promulgation of the old Rule 23 provided a new means for resolving in a single federal litigation, based on diversity jurisdiction, the claims of all members of a class, even though some in the class were not of diverse citizenship from parties on the other side. ”

“ Now, confronted by an issue of the meaning of the jurisdictional amount requirement arising in the context of a new procedural law of class actions, we should continue to take account of such changes. We should not allow the judicial interpretation of the jurisdictional amount requirement to become petrified into forms which are products of, and appropriate to, another time. To do this would vitiate a significant part of the reform intended to be accomplished by the amendment of Rule 23. ”

“ Whatever the pre-1966 status of the aggregation doctrines in class action cases, the amendment of the Rules in that year permits and even requires a re-examination of the application of the doctrines to such cases. The fundamental change in the law of class actions effected by the new Rule 23 requires that prior subsidiary judicial doctrine developed for application to the old Rule be harmonized with the new procedural law. ”

“ The majority speculates that it is 'possible, if not probable,' that Congress 'implicitly' took into account the existing aggregation doctrines as applied to class action cases when it decided to raise the jurisdictional amount to $10,000 rather than some higher or lower amount. ”

“ Southern Pacific Co., 333 U.S. 445, 450, 68 S.Ct. 611, 613, 92 L.Ed. 798 (1948) , the majority noted the difficulty of regarding re-enactment as a congressional adoption of existing judicial doctrines, but decided that 'in the setting of this case' adoption was implied. The dissent responded:↑ See Hearing on H.R. 2516 and H.R. 4497, before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong., 1st Sess., ser. 5 (1957) ; H.R.Rep.No.1706, 85th Cong., 2d Sess. (1958) ”