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.

Volume 156, Issue 5 
May 2008

Punishing the Innocent

Josh Bowers

Scholars highlight an "innocence problem" as one of plea bargaining's chief failures. Their concerns, however, are misguided. In fact, many innocent defendants are better off in a world with plea bargaining than one without it. Plea bargaining is not the cause of wrongful punishment. Rather, inaccurate guilty pleas are merely symptomatic of errors at the points of arrest, charge, or trial. Much of the worry over an innocence problem proceeds from misperceptions over (1) the characteristics of typical innocent defendants; (2) the types of cases they generally face; and (3) the level of due process they ordinarily desire. In reality, most innocent defendants are recidivists, because institutional biases select for the arrest and charge of these repeat players. And most cases are petty. In these low-stakes cases, recidivist innocent defendants face high pretrial process costs (particularly if the defendants are detained). But innocent defendants also enjoy low plea prices because prosecutors do not try to maximize sentence length in low-stakes cases. Moreover, defendants possess certain underappreciated bargaining advantages in these cases. In the end, the costs of proceeding to trial often swamp the costs of pleading to lenient bargains. Put differently, many recidivist innocent defendants are punished by process and released by pleas. Thus, plea bargaining is no source of wrongful punishment; rather, it may be a normative good that cuts erroneous punishment short. Accordingly, the system must provide innocent defendants access to plea bargaining. Cur-rent vehicles for rational choice pleas-like no-contest pleas and equivocal pleas-are not up to the task. Instead, the system should reconceive of false pleas as legal fictions and require defense lawyers to advise and assist innocent defendants who wish to enter into plea bargains and mouth dishonest on-the-record words of guilt.

Relational Tax Planning Under Risk-Based Rules

Alex Raskolnikov

Risk-based rules are the tax system's primary response to aggressive tax planning. They usually grant benefits only to those taxpayers who accept risk of changes in market prices (market risk) or business opportunities (business risk). Attempts to circumvent these rules by hedging, contractual safeguards, and diversification are well understood. The same cannot be said about a very different type of tax planning. Instead of reducing risk directly, some taxpayers change the nature of risk. They enter into informal, legally unenforceable agreements with contractual counterparties that are designed to eliminate market or business risk entirely. The new uncertainty these tax planners inevitably accept, however, is the risk that the counterparties will violate the implicit agreements and betray taxpayers' trust (counterparty risk). A deliberate substitution of counterparty risk for market or business risk is what this Article calls relational tax planning. The Article offers an economic analysis of different risks and considers two responses to the relational tax planning problem. The analysis suggests that from a welfarist perspective, business risk is a superior deterrent compared to both market and counterparty risks. Counterparty risk is the most complex of the three. In addition to producing risk-bearing losses like all other risks, it leads to reduced transaction costs in future exchanges between relational tax planners, but only if they manage to overcome bargaining obstacles caused by opportunism and asymmetric information. These insights suggest two very different responses. A sweeping reform will allow—and even encourage—taxpayers to engage in relational tax planning, but it will also ensure that counterparty risk they incur is sufficiently high. If only incremental improvements are pursued, courts should increase their scrutiny of relational tax planning involving extensive dyadic business relationships and interactions based on social norms.

Excluding Religion

Nelson Tebbe

Tebbe’s Article considers whether the government may single out religious actors and entities for exclusion from its support programs. The problem of selective exclusion has recently sparked interest in lower courts and in informal discussions among scholars, but the literature has not kept pace. Excluding Religion argues that the government generally ought to be able to select religious actors and entities for omission from support without offending the Constitution. At the same time, the Article carefully circumscribes that power by delineating several limits. It concludes by drawing out some implications for the question of whether and how a constitutional democracy ought to be able to influence private choices concerning matters of conscience.


Indigenous Peoples' Courts: Egalitarian Juridical Pluralism, Self-Determination, and the United Nations Declaration on the Rights of Indigenous Peoples

Christopher J. Fromherz

Assessing the Proper Relationship Between the Alien Tort Statute and the Torture Victim Protection Act

Philip Mariani

Volume 156, Issue 4 
April 2008

Integrating Accommodation

Elizabeth F. Emens

Deadlines In Administrative Law

Jacob E. Gersen & Anne Joseph O'Connell

A cottage industry in administrative law studies the various mechanisms by which Congress, the President, and the courts exert control over administrative agencies. Restrictions on the appointment and removal of personnel, the specification of requisite procedures for agency decision making, presidential prompt letters, ex ante review of proposed decisions by the Office of Management and Budget (OMB), legislative vetoes, and alterations in funding and jurisdiction are all potential mechanisms for controlling agency behavior. This Article focuses on a more basic mechanism of control that has surprisingly gone comparatively unnoticed in the literature on administrative agencies: control of the timing of administrative action.

Constitutional Showdowns

Eric A. Posner & Adrian Vermeule


Dismantling the Felony-Murder Rule: Juvenile Deterrence and Retribution Post-Roper v. Simmons

Erin H. Flynn

The Court’s dicta in Roper v. Simmons seem to foreclose immediate Eighth Amendment challenges to juvenile LWOP sentences. This Comment seeks to show that the Court’s recognition of three main differences between juveniles and adults leaves open to principled attack one of the major doctrinal hooks for gaining adult court jurisdiction over juveniles, and one of the main factors in lengthy juvenile incarcerations and juvenile LWOP sentences: prosecutors’ use of felony-murder charges.

Flashback to the Federal Analog Act of 1986: Mixing Rules and Standards in the Cauldron

Gregory Kau

Volume 156, Issue 3 
March 2008

An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005

Barton Beebe

Equity and Debt Decoupling and Empty Voting II: Importance and Extensions

Henry T. C. Hu & Bernard Black

Two Conceptions of Emotion in Risk Regulation

Dan M. Kahan


Successor Liability Under CERCLA: It’s Time To Fully Embrace State Law

Michael Carter

Stacking the Deck: Futility and the Exhaustion Provision of the Prison Litigation Reform Act

Eugene Novikov

Volume 156, Issue 2 
December 2007

Law and the Market: The Impact of Enforcement

John C. Coffee, Jr.

Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities

Christopher S. Elmendorf

Causing, Aiding, and the Superfluity of Accomplice Liability

Michael S. Moore


Appended Post-Passage Senate Judiciary Committee Report: Unlikely "Legislative History" for Interpreting Section 5 of the Reauthorized Voting Rights Act

Erica Lai

The Constitutionality of Federal Restrictions on the Indemnification of Attorneys' Fees

Nishchay H. Maskay

Volume 156, Issue 1 
November 2007

The Short and Puzzling Life of the “Implicit Minority Discount” in Delaware Appraisal Law

Lawrence A. Hamermesh & Michael L. Wachter

International Consensus as Persuasive Authority in the Eighth Amendment

Youngjae Lee

Antitrust and Nonprofit Hospital Mergers: A Return to Basics

Barak D. Richman


Expanding the Scope of the Hatch-Waxman Act's Patent Carve-Out Exception to the Identical Drug Labeling Requirement: Closing the Patent Litigation Loophole

Julie Dohm

Third-Party Ratings as Modern Reputational Information: How Rules of Professional Conduct Could Better Serve Lower-Income Legal Consumers

Colleen Petroni

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