Avoiding death by a thousand cuts: the relitigation of class certification and the realities of the modern class action

Part I of this Article examines Smith vs Bayer Corp and its implications for the problem of serial certification attempts. Part II describes baseline principles of res judicata in more detail. Part III explores the relitigation of class certification and the specific problems it poses. Part IV places the relitigation of class certification in the context of the development and realities of the modern class action. By doing so, it will establish that for a number of purposes (including the application of res judicata) the class attorneys, not just the named plaintiffs, should be deemed the real parties in interest. Part V assesses alternative solutions proposed in response to the relitigation of class certification, including the solution suggested in Bayer, and explains why each of these alternatives fails. Part VI examines the methods by which our solution might be implemented.