The Role of Choice of Law in National Class Actions

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A number of the papers in this Symposium on the impact of the Class Action Fairness Act of 2005 (CAFA) have focused on the allocation of state and federal authority with respect to jurisdiction over nationwide class actions. This Article takes a different perspective by analyzing the role of choice of law in selecting a forum to hear a class action and the effect of choice of law on interstate forum shopping in nationwide class litigation. CAFA does not address the choice of law question, and thus interstate forum shopping is likely to continue as plaintiffs seek a forum with an approach to choice of law that will facilitate certification of a nationwide class. Because a federal court is obliged to apply state choice of law rules under Klaxon Co. v. Stentor Electric Manufacturing Co., a single state’s parochial or pro-aggregation choice of law rule may be in tension with the “neutrality” in certification decisions that CAFA is seeking.

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