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In a 2013 article, I explained that the Supreme Court and federal circuits had cut back significantly on plaintiffs’ ability to bring class actions. As I explain in this article, that trend has subsided. First, the Supreme Court has denied certiorari in several high-profile cases. Second, the Court’s most recent class action rulings have been narrow and fact specific. Third, the federal circuits have generally rejected defendants’ broad interpretations of Supreme Court precedents and arguments for further restrictions on class certification. One explanation for this new trend is that defendants have been overly aggressive in their arguments, losing credibility and causing courts to push back. Another is that courts are retreating from the view that pressure on defendants to settle is itself a reason to curtail class actions. It remains to be seen, however, whether this trend is the new normal, or merely a respite from the decline of class actions.

This Article offers a new reading of Hart’s classic Positivism and the Separation of Law and Morals by rethinking the form of positivism Hart was putting forward. Hart’s separationism was not principally intended as a speculative proposition about the conceptual distinctness of law and morality but as a practical maxim about the need to distinguish what the law is from what the law ought to be. Hart believed that legal interpreters must display truthfulness or veracity about the law, being candid about what it actually says and how far it goes, rather than gilding the content of the law by ascribing to it what one wishes it said. “Practical positivism,” as Professor Zipursky calls it, was Hart’s antidote to the approaches of legal realism and natural law theory gaining ascendancy in American legal theory in the 1950s. Despite all of their differences, both realists and natural law theorists like Fuller treated the task of saying what the law is as inviting decision makers to make the law what it ought to be—“practical perfectionism,” in Zipursky’s terminology. Hart’s great lecture asserted, above all, that practical positivism was superior to practical perfectionism. Drawing upon a variety of contemporary examples, the Article suggests that the practical perfectionism that concerned Hart in 1958 is alive and well today among both conservatives and progressives—on the bench, at the bar, and in the legal academy. Conversely, originalists, textualists, and pragmatic conceptualists are among today’s descendants of practical positivists. The last half of the Article sketches a contemporary defense of practical positivism, adapting a Legal Coherentist framework to bolster Hart’s work against Ronald Dworkin’s criticisms.