Volume 156, Issue 6 
June 2008

Commentary On Class Settlements Under Attack

Catherine T. Struve

Like the supporters of the Class Action Fairness Act (CAFA), Issacharoff and Nagareda ground their proposal in the concept of the “anomalous court.” For CAFA supporters, the concern was the “anomalous” state courts—also termed “judicial hellholes”—that were willing improperly to certify a nationwide class action. CAFA addresses this concern by “mak[ing] it much easier for defendants to remove to federal court proposed nationwide class actions involving high-stakes, state law claims originally filed in state court.” But, as Professor Tobias Wolff has pointed out, by failing to provide for removal by class members, CAFA leaves such members at the mercy of collusive class settlements in anomalous state courts. Collateral attacks provide one means of addressing the concern about collusive class settlements. Issacharoff and Nagareda, however, argue that reliance on collateral review as a means of policing collusive class settlements recreates the problem of the “anomalous court” in a different posture, because some courts may be willing to take anomalously hostile views of the validity of a challenged class settlement.

CAFA Judicata: A Tale of Waste and Politics

Kevin M. Clermont & Theodore Eisenberg

The Class Action Fairness Act (CAFA) has taken on its real form through construction by federal judges. That form emerges in this empirical study of judicial activity and receptivity in regard to the Act. Our data comprise the opinions under the Act published during the two and a half years following its enactment in 2005.

The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View

Stephen B. Burbank

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.

Has the Erie Doctrine Been Repealed by Congress

Geoffrey C. Hazard, Jr.

The enactment of the Class Action Fairness Act of 2005 (CAFA) is a congressional pronouncement implying that the Erie Doctrine is seriously erroneous. In broad terms, CAFA allows class actions that have been filed in state courts and that are based on state substantive law to be removed to federal court if they involve out-of-state defendants and more than five million dollars in claimed damages. The legislation is very complex and in many respects ambiguous.

CAFA's Impact on Class Action Lawyers

Howard M. Erichson

Procedural reforms alter litigation options directly, but they alter the litigation landscape in more ways than reformers anticipate. Three years ago, Congress dramatically expanded federal jurisdiction with the Class Action Fairness Act of 2005 (CAFA), a statute drafted with no love for class action plaintiffs’ lawyers. Those lawyers have adapted to the statute, in part, by altering their forum-selection and claim-selection strategies. Analysis of these adaptations offers an emerging picture of the statute’s impact on class actions and class action lawyers. CAFA’s impact on the class action bar deserves particular attention because, although the statute speaks the language of subject matter jurisdiction, its message of mistrust was aimed squarely at the lawyers.

Federal Jurisdiction and Due Process in the Era of the Nationwide Class Action

Tobias Barrington Wolff

The class action has come of age in America. With increasing regularity, class litigation plays a central role in discussions about theory, doctrine, and policy in the American civil justice system. The dynamics of the class action lie at the heart of current debates over the nature of the litigation process and the limits of adjudication in effectuating social policy. Choice of law analysis has enjoyed a renaissance as its significance to the question of class certification has become apparent. Class litigation now frequently drives debates over tort reform and the phenomenon of regulation through litigation. In these and many other respects, we have entered a new dispensation: the era of the nationwide class action. The passage of the Class Action Fairness Act of 2005 (CAFA) —the first occasion on which Congress has enacted a generally applicable legislative policy pertaining to aggregate representative litigation —aptly punctuates that arrival.

Procedure, Politics, Prediction, and Professors: A Response to Professors Burbank and Purcell

Stephen N. Subrin

It is a daunting assignment to attempt to add something of merit to the work of Stephen Burbank and Edward Purcell, two of the leading scholars of American civil procedure and procedural reform. Their papers, though, do suggest four themes to me, which I will comment upon briefly: (1) the relationship of substantive and procedural law; (2) the place of politics in procedural reform; (3) the difficulty of reliably predicting consequences of procedural reform; and (4) challenges that the Class Action Fairness Act of 2005 (CAFA) and similar reforms present for law professors, both in their roles as researchers and writers, and as teachers of would-be lawyers.

The Class Action Fairness Act in Perspective: The Old and the New in Federal Jurisdictional Reform

Edward A. Purcell, Jr.

The Class Action Fairness Act of 2005 (CAFA) was the product of an extended and well-organized political campaign. In Congress, its passage required a grinding eight-year effort, several modifications to the original proposal, numerous committee hearings, multiple reports by both Houses, political compromises that drew some Democratic support, two unsuccessful attempts to terminate debate in the Senate by imposing cloture, and strenuous efforts to amend in both the House and Senate when the bill came to the floor for a final vote. Passage also required Republican control of both Houses of Congress and the presidency as well.

Assessing CAFA's Stated Jurisdictional Policy

Richard L. Marcus

Anyone who addresses jurisdictional policy must contend with the fact—proclaimed at the outset of Professors Wright and Kane’s Federal Courts treatise—that “there is to this day no consensus as to the historical justification or the contemporary need for diversity jurisdiction.” Even if one could discern the original objectives, they add, “[t]he conditions that existed, or were feared to exist, in 1789 are irrelevant in determining the continued necessity for diversity jurisdiction.” Thus, although one may fashion a general theory about the appropriate use of the federal judicial power, one is also left with strong competing currents. At least in Congress, those currents often respond more to political pressure than to elegant general jurisdictional policies.

Overruling Erie: Nationwide Class Actions and National Common Law

Suzanna Sherry

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.

CAFA Settlement Notice Provision: Optimal Regulatory Policy?

Catherine M. Sharkey

Sometimes the periphery proves to be of central importance. In its infant years, the Class Action Fairness Act of 2005 (CAFA) has undergone much critical scrutiny. This Article moves us to the periphery to evaluate the largely ignored settlement notice provision. The provision mandates that notice of every class action settlement within CAFA’s purview must be provided to “appropriate” federal and state officials. The relevant federal official is the Attorney General of the United States. As for the states, the relevant official is the one who has “primary regulatory or supervisory responsibility with respect to the defendant, or who licenses or otherwise authorizes the defendant to conduct business in the State,” or, by default, the attorney general (AG) of any state in which any class member lives.

Lessons in Federalism From the 1960s Class Action Rule and the 2005 Class Action Fairness Act: "The Political Safeguards" of Aggregate Translocal Actions

Judith Resnik

What does the Class Action Fairness Act of 2005 (CAFA) teach us about federalism? A first lesson is that, when confronted with state-based decision making of which they disapprove, national lawmakers federalize rights, as they have repeatedly done throughout United States history. In 2005, Congress turned to the federal courts because CAFA’s proponents believed that state courts were too welcoming of collective adjudication. CAFA is part of a cohort of enactments and doctrinal developments of this era that preempt state decision making and push litigants toward noncollective and nonadjudicative remedies such as privately sponsored arbitration programs.

The Impact of the Class Action Fairness Act on the Federal Courts: An Empirical Analysis of Filings and Removals

Emery G. Lee III & Thomas E. Willging

This Article presents preliminary findings from the Federal Judicial Center’s (FJC) study of the impact of the Class Action Fairness Act of 2005 (CAFA) on filings and removals of class actions in the federal courts. After setting the FJC research in the context of the Judicial Conference’s evolving position with respect to expanded federal court jurisdiction over class actions, the Article shows that the monthly average number of diversity of citizenship class actions filed in or removed to the federal courts has ap-proximately doubled in the post-CAFA period (February 18, 2005, through June 30, 2006). The Article also presents preliminary findings on trends in federal question class action filings and removals, class action activity by nature-of-suit categories, and the geographic distribution of class action filings and removals in the federal courts.

Class Settlements Under Attack

Samuel Issacharoff & Richard A. Nagareda

Settlements dominate the landscape of class actions. The overwhelming majority of civil actions certified to proceed on a class-wide basis and not otherwise resolved by dispositive motions result in settlement, not trial. This is far from unusual in civil litigation generally, where observations about “the vanishing trial” have become commonplace. Seemingly, the paucity of actual trials should have been integrated into the core structures of the class action. That, however, is not so, and the failure to integrate the fact of settlement into class action law permeates the difficulties now facing the field.

The Role of Choice of Law in National Class Actions

Linda Silberman

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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