Overruling Erie: Nationwide Class Actions and National Common Law

The Class Action Fairness Act of 2005 (CAFA) reflects a sharp change of direction in contemporary thinking about federalism. It expands federal jurisdiction substantially, placing many more state law claims into federal court. In so doing, it highlights and attempts to resolve the tension that has always existed between state and national interests.

In this Commentary, I argue that the enactment of CAFA amounts to swimming halfway across a river. Professor Linda Silberman’s thoughtful and well-argued proposal is a valiant attempt to keep from drowning while treading water in the middle of the river. I suggest that instead of treading water, we should swim the rest of the way.

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