The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View
Jurisdictional legislation, like the law of procedure with which it tends to be grouped, can become disembodied from the political and social con-texts in which it was enacted, the political and social contexts in which it functions, and the historical and institutional circumstances that affect—if not determine—its significance. Scholars who are preoccupied with doctrine, and courts that must try to make sense of jurisdictional legislation and precedent interpreting it, may be content (or constrained) simply to grapple with the technical details. Those who seek to understand law’s significance, however, require perspectives in addition to the internal logic of technical reasoning. Particularly when the law in question is labeled “procedure,” they must resist the temptation to accept a doctrinal question at face value (that is, to regard doctrine as an end in itself), to view such a question apart from the litigation dynamics that it engenders, and otherwise to ignore issues of power that may be at stake in its resolution.
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Kevin M. Clermont & Theodore Eisenberg
Geoffrey C. Hazard, Jr.