Often in the law, much hinges on the choice of a particular word. This is true of a contract, a statute, and it is no less true of the Federal Rules of Civil Procedure. There is one word in the Federal Rules, however, that has increasingly been interpreted contrary to its plain meaning. That word is "predominate," in Federal Rule of Civil Procedure 23(b)(3). Rule 23(b)(3) says that a case may proceed as a class action when "questions of law or fact common to class members predominate over any questions affecting only individual members." The choice of the word "predominate" unambiguously conveys the intent that cases be certified as class actions, even when there are a number of individual issues, as long as those individual issues are outweighed by common issues; that is, a finding that common issues "predominate" over individual issues. Yet, in class actions seeking Rule 23(b)(3) class certification, litigation often turns into a fight to prove that all issues are common across the class—thus erroneously conflating predominance with perfection, which is not what the rule contemplates or requires.

To read an implicit requirement into Rule 23(b)(3) that all, or nearly all, issues of law and fact must be common across the class is not only at odds with the choice of the word "predominate," it is also at odds with the intention behind Rule 23(b)(3). When the Federal Rules were amended in 1966 and Rule 23(b)(3) was introduced, the Advisory Committee stated that the new rule was intended to allow for class actions where certification would "achieve economies of time, effort, and expense, and promote uniformity of decisions as to persons similarly situated." Fed. R. Civ. P. 23(b)(3) advisory committee's note to 1966 amendment. Benjamin Kaplan, reporter to the 1966 U.S. Judicial Conference Advisory Committee on Civil Rules, explained, "The reform of Rule 23 was intended to shake the law of class actions free of abstract categories … and to rebuild the law on functional lines responsive to those recurrent life patterns which call for mass litigation through respective parties." (See Benjamin Kaplan, "A Prefatory Note," 10 B.C. Indus. & Com. L. Rev. 497, 497 (1969).) In the same comment, Kaplan noted that the rule's reconstruction sought "to promote more vigorously than before the dual missions of the class-action device," by way of (1) reducing the amount of litigation by consolidating cases that may otherwise be duplicative and (2) providing a means of vindication "for groups of people who individually would be without effective strength to bring their opponents into court at all." As the Supreme Court later stated in Phillips Petroleum v. Shutts, 472 U.S. 797, 809 (1985), Rule 23(b)(3) permits "plaintiffs to pool claims which would be uneconomical to litigate individually."