Lessons in federalism from the 1960s class action rule and the 2005 class action fairness act: "the political safeguards" of aggregate translocal actions

University of Pennsylvania Law Review

Volumn 156, Issue 6, 2008, Pages 1929-1969

  Resnik, Judith ^a  

^a YALE UNIVERSITY   (United States)

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EID: 54549104752     PISSN: 00419907     EISSN: None     Source Type: Journal    
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References (183)

1. Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.).
2. See Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, 156 U. PA. L. REV. 1439, 1484-89 (2008);
3. Edward Purcell, Jr., The Class Action Fairness Act in Perspective: The Old and the New in Federal Jurisdictional Reform, 156 U. PA. L. REV. 1823, 1851 (2008).
4. 347 U.S. 483 (1954).
5. See generally Herbert Weschler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954), discussed infra text accompanying note 151.
6. See, e.g., Owen M. Fiss, The Political Theory of the Class Action, 53 WASH. & LEE L. REV. 21 (1996);
7. Jonathan R. Macey & Geoffrey P. Miller, The Plaintiffs' Attorney's Role in Class Action and Derivative Litigation: Economic Analysis and Recommendations for Reform, 58 U. CHI. L. REV. 1 (1991).
8. See Amendments to the Federal Rules of Civil Procedure, 215 F.R.D. 158, 162-69 (2003).
9. See Symposium, Mass Torts, 148 U. PA. L. REV. 1851 (2000).
10. See Judith Resnik, Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation, 148 U. PA. L. REV. 2119, 2146, 2149 (2000) [hereinafter Resnik, Money Matters].
11. Id. at 2129.
12. See Purcell, supra note 2, at 1868-69.
13. Lee H. Rosenthal, U.S. Dist. Judge, S. Dist of Tex., Remarks at the University of Pennsylvania Law Review Symposium: Fairness to Whom? Perspectives on the Class Action Fairness Act of 2005 (Dec. 1, 2007);
14. see also Lee H. Rosenthal, Back in the Court's Court, 74 UMKC L. REV. 687, 706-07 (2006).
15. See, e.g., Tobias Barrington Wolff, Federal Jurisdiction and Due Process in the Era of the Nationwide Class Action, 156 U. PA. L. REV. 2035, 2131 (2008).
16. See, e.g., Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. REV. 1353, 1415-20 (2006).
17. See Richard L. Marcus, They Can't Do That, Can They? Tort Reform via Rule 23, 80 CORNELL L. REV. 858, 866-71 (1995). To the extent that "they" (federal judges) were doing "that" (tort reform), Congress could be read to have given its approval in CAFA.
18. Cf. CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT (1999).
19. See, e.g., Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957). The majority read the Labor Management Relations Act of 1947 as authorizing federal judges to supply common law rules of decision. The decision is also known for its dissent, exploring whether - if the Act had not provided substantive federal lawmaking authority - Congress could have given jurisdiction over the claims to the federal courts. See id. at 469-484 (Frankfurter, J., dissenting). See generally Carole E. Goldberg-Ambrose, The Protective Jurisdiction of the Federal Courts, 30 UCLA L. REV. 542 (1983);
20. Paul J. Mishkin, The Federal "Question" in the District Courts, 53 COLUM. L. REV. 157, 195 (1953).
21. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
22. See, e.g., Geoffrey C. Hazard, Jr., Erie Doctrine Repealed by Congress?, 156 U. PA. L. REV. 1629 (2008);
23. Suzanna Sherry, Overruling Erie: Nationwide Class Actions and National Common Law, 156 U. PA. L. REV. 2135 (2008).
24. Edward Purcell details this position along with others taken during the debates about CAFA's enactment. See generally Purcell, supra note 2, at 1889-1904.
25. Burbank, supra note 2, at 1445-48.
26. See Kevin M. Clermont & Theodore Eisenberg, CAFA Judicata: A Tale of Waste and Politics, 156 U. PA. L. REV. 1553 (2008).
27. See Richard L. Marcus, Assessing CAFA's Stated Jurisdictional Policy, 156 U. PA. L. REV. 1765 (2008).
28. See Linda Silberman, The Role of Choice of Law in National Class Actions, 156 U. PA. L. REV. 2001 (2008). Again, I borrow Cass Sunstein's description of what he sees as a form of constitutional interpretation. See SUNSTEIN, supra note 15.
29. See Silberman, supra note 23, at 2031.
30. See William B. Rubenstein, The Public Role in Private Governance: Some Reflections on CAFA's Early Experience 3 (Nov. 19, 2007) (unpublished manuscript, on file with author) (discussing 28 U.S.C. § 1715 (Supp. V 2005)).
31. See FED R. CIV. P. 23 (1966).
32. Pub. L. No. 94-559, 90 Stat. 2641 (codified as amended at 42 U.S.C. § 1988 (2000)).
33. Pub. L. No. 68-401, 43 Stat. 883 (codified at 9 U.S.C. §§ 1-14 (2000)); see infra notes 93-97 and accompanying text.
34. See infra Part V.
35. Benjamin Kaplan, Commentary, Comment on Carrington, 137 U. PA. L. REV. 2125, 2126-27 (1989). Thanks to Stephen Subrin for pointing me to this commentary.
36. I detail the archival sources in From "Cases" to "Litigation," 54 LAW & CONTEMP. PROBS. 5, 6-15 (1991) [hereinafter Resnik, From "Cases" to "Litigation"].
37. Professor Kaplan explained his project in Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 HARV. L. REV. 356 (1967) [hereinafter Kaplan, Continuing Work].
38. See FED. R. CIV. P. 23 advisory committee's note, reprinted in 39 F.R.D. 69, 102 (1966) (explaining that civil rights actions are "illustrative" of the purpose of Rule 23(b)(2) and listing several school desegregation cases as examples).
39. See id. (noting that Rule 23(b)(2) is "not limited to civil rights cases" and describing several potential commercial applications).
40. See Judith Resnik, Dennis E. Curtis & Deborah R. Hensler, Individuals Within the Aggregate: Relationships, Representation, and Fees, 71 N.Y.U. L. REV. 296, 298-309 (1996).
41. See generally Theodore Eisenberg & Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 HARV. L. REV. 465 (1980).
42. See Gideon v. Wainwright, 372 U.S. 335 (1963).
43. See Legal Services Corporation Act of 1974, Pub. L. No. 93-355, 88 Stat. 378 (1974).
44. Pub. L. No. 94-559, 90 Stat. 2641 (codified as amended at 42 U.S.C. § 1988 (2000)).
45. In this context, the Supreme Court's limitation on the 1966 Rule in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 175 (1974), requiring that plaintiffs bear the costs of identifying and sending notice to all members of 23(b) (3) class actions, was subjected to a great deal of criticism for undercutting the utility of the Rule. See, e.g., Kenneth W. Dam, Class Action Notice: Who Needs It?, 1974 SUP. CT. REV. 97. The judicial response to the 1966 rule may be paralleled in the response, reported by Clermont and Eisenberg, of judicial reluctance to implement CAFA. See Clermont & Eisenberg, supra note 21, at 1579-84.
46. See, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 42 U.S.C.); Fair Housing Act, Pub. L. No. 90-284 §§ 801-819, 82 Stat. 81 (1968); Clean Air Act, Pub. L. No. 88-206, 77 Stat. 392 (1963) (codified as amended in scattered sections of 42 U.S.C.).
47. 383 U.S. 715 (1966). The Court explained that, if "a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming sustainability of the federal issues, there is power in federal courts to hear the whole." Id. at 725 (emphasis omitted). In the era of Gibbs, the terminology used was "pendent" and "ancillary" claims and parties. The current statute addressing these ideas speaks of "supplemental jurisdiction." See 28 U.S.C. § 1367 (2000).
48. I analyzed the interaction and development of this approach, and its reflection in the minutes and letters of the Advisory Committee in Resnik, From "Cases" to "Litigation," supra note 31, at 6-15.
49. See FED. R. CIV. P. 23 advisory committee's note, reprinted in 39 F.R.D. 69, 103 (1966).
50. Benjamin Kaplan stated that "where the stake of each member bulks large and his will and ability to take care of himself are strong," class treatment was not necessary. Kaplan, Continuing Work, supra note 31, at 391.
51. Benjamin Kaplan, A Prefatory Note, 10 B.C. INDUS. & COM. L. REV. 497, 497 (1969).
52. Kaplan, Continuing Work, supra note 31, at 393.
53. 28 U.S.C. § 1407 (2000).
54. See Resnik, From "Cases" to "Litigation," supra note 31, at 28-35 & n.103.
55. As Silberman notes, "[T]he federal courts in these class action choice of law cases felt bound under Erie . . . to adopt the choice of law approach of the respective states in which they sat, and thus were limited as to how they might expressly shape choice of law to accommodate aggregate litigation." See Silberman, supra note 23, at 2015; see also Sherry, supra note 18, at 2138-39.
56. 380 U.S. 460 (1965). That decision, which concluded that the state method of service of process need not be used, underscored the authority of federal procedural rules to govern diversity cases.
57. In the 1930s, federal judges were proponents of diversity jurisdiction, which has long been a significant portion of the docket. Indeed, when a proposal to abolish diversity was pending in the 1930s, neither Chief Justice Hughes, presiding at the Conference of Senior Circuit Judges (the predecessor of the Judicial Conference of the United States) nor his colleagues were enthusiastic about that proposal. Yet the group thought that it would be inappropriate and inept to submit a formal statement in opposition. Moreover, the Conference thought that its power to report on the "business of the federal courts" did not authorize it to opine on the wisdom of the proposed reconfiguration of federal jurisdiction. See Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 HARV. L. REV. 924, 962-63 (2000). Furthermore, before 1938 and the Erie decision, diversity cases provided federal judges with opportunities to fashion federal rules of decision. Diversity jurisdiction thus served as a vehicle for federalization, in that judges developed national common law and created incentives for lawyers to bring cases in federal court to be governed by those precepts.
58. ALI, STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS 172-76 (1969). As the study explained, "the stated requirement of an amount in controversy in fact has relatively little impact on the volume of federal question litigation. The few cases there are, however, that must satisfy the § 1331 requirement are likely to involve matters particularly deserving of a federal forum." Id. at 172. Further, the simple fact that more cases might be better - or more efficiently - tried in a federal court is not of itself sufficient justification for such jurisdiction. The problems involved here [in the discussion of multiparty, multistate diversity] do not relate simply to trial efficiency at large, but grow out of the multi-state nature of our Union. . . . To the extent that the need for a federal forum to handle these multi-state cases is great enough, such incursion must of course be accepted. The problem thus becomes one of balance, and of judgments that can perhaps be better made in somewhat more specific contexts. Id. at 378-79.
59. See Judith Resnik & Lane Dilg, Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States, 154 U. PA. L. REV. 1575, 1603-04 (2006).
60. David L. Shapiro, Class Actions: The Class as Party and Client, 73 NOTRE DAME L. REV. 913, 917 (1998).
61. See Purcell, supra note 2, at 1856-60.
62. CAFA § 2(b) (1), 28 U.S.C. § 1711 note (Supp. V 2005).
63. Id. § 2(b) (3).
64. Id. § 2(b) (2).
65. Id. § 2(a) (4)-(a) (4) (A).
66. See id. § 2(a) (4) (A)-(C).
67. See Violence Against Women Act of 1994, Pub. L. No. 103-322, § 40302, 108 Stat. 1902, 1941 (codified at 42 U.S.C. § 13981 (2000)), invalidated by United States v. Morrison, 529 U.S. 598 (2000).
68. See Brief of Law Professors as Amici Curiae in Support of Petitioners, Morrison, 529 U.S. 598 (No. 99-5), 1999 WL 1032805.
69. See 529 U.S. at 617-18.
70. See Judith Resnik, Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 YALE L.J. 619, 629-70 (2001) [hereinafter Resnik, Categorical Federalism].
71. But see Kenneth W. Starr, Preface to FEDERAL PREEMPTION: STATES' POWERS, NATIONAL INTERESTS, at xi, xiv (Richard A. Epstein & Michael S. Greve eds., 2007) [hereinafter FEDERAL PREEMPTION]. There, Dean Starr commented, "Crime eradication, poverty relief, family governance, morals regulation, together with primary and secondary education, have in the past formed the core responsibilities of state and local government, and they should continue to do so today." Id.
72. See Resnik, Categorical Federalism, supra note 64, at 619-26;
73. see also Judith Resnik, Afterword: Federalism's Options, 14 YALE L. & POL'Y REV. 465, 479-85 (1996) [hereinafter Resnik, Federalism's Options].
74. One illustration is the recent decision in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, stating the rule that "in certain cases federal-question jurisdiction will lie over state-law claims that implicate significant federal issues." 545 U.S. 308, 312 (2005).
75. See, e.g., Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978).
76. 87 U.S. (20 Wall.) 590 (1874).
77. Thus, Professor Sherry and I agree that Erie is optional but may disagree about the wisdom of exercising that option. See Sherry, supra note 18, at 2139-40.
78. 28 U.S.C. § 1332(d) (5) (A) (Supp. V 2005). Also excluded are cases involving proposed classes of one hundred or fewer members. Id. § 1332(d) (5) (B).
79. 465 U.S. 89, 117 (1984) (5-4 decision).
80. Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321, 1321-66 (1996).
81. CAFA requires that, Not later than 10 days after a proposed settlement of a class action is filed in court, each defendant that is participating in the proposed settlement shall serve upon the appropriate State official of each State in which a class member resides and the appropriate Federal official, a notice of the proposed settlement. CAFA § 3, 28 U.S.C. § 1715(b). "Notice" must consist of a copy of the complaint and related materials, notice of any scheduled judicial hearing, any proposed or final notification to class members, any proposed or final class action settlement, any settlement or other agreement made between class counsel and defense counsel, any final judgment or notice of dismissal, and - depending on feasibility - the names of class members who reside in each State and their estimated share of the settlement. Id. § 1715(b) (1)-(7).
82. See Rubenstein, supra note 25 (manuscript at 26-27) (suggesting that drafters in Congress may not have focused on the degree to which CAFA's settlement notice provision provides opportunities for state officials to receive notice of, and therefore potentially to affect, the settlements of class actions).
83. CAFA § 4, 28 U.S.C. § 1332(d) (11) (B) (iii) (III).
84. See generally Elizabeth C. Burch, CAFA's Impact on Litigation as a Public Good, 29 CARDOZO L. REV. (forthcoming 2008);
85. Myriam Gilles & Gary B. Friedman, Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers, 155 U. PA. L. REV. 103 (2006).
86. 127 S. Ct. 1955 (2007).
87. See Private Securities Litigation Reform Act of 1995, Pub. L. No. 104-67, § 21D(b) (1)-(3), 109 Stat. 737, 747 (codified at 15 U.S.C. § 78u-4(b) (1)-(3) (2000)).
88. 355 U.S. 41 (1957).
89. The majority commented, We could go on, but there is no need to pile up further citations to show that Conley's "no set of facts" language has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion's preceding summary of the complaint's concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Bell Atlantic, 127 S. Ct. at 1969.
90. See generally Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L. REV. 433 (1986).
91. As of that date, the Supreme Court had cited Bell Atlantic twice - in Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and in Credit Suisse Securities (USA) LLC v. Billing, 127 S. Ct. 2383, 2398 (2007). State courts provided fifteen citations, and 2169 came from the lower federal courts.
92. 127 S. Ct. 2197 (2007).
93. The Court concluded that the pro se pleader's allegations that his medication was withheld, that he was still in need of treatment, and that the prison official refused to provide treatment sufficed under Rule 8(a) (2). Id. at 2200. For discussion of whether Bell Atlantic and Erickson cohere, see Iqbal v. Hasty, 490 F.3d 143, 155-59 (2d Cir. 2007), cert. granted, No. 07-1015, 2008 WL 336310 (June 16, 2008).
94. 355 U.S. 41 (1957).
95. Id. at 42-43.
96. Id. at 44-45.
97. See 45 C.F.R. § 1617.3 (2007) ("Recipients [of LSC funding] are prohibited from initiating or participating in any class action."). The Court has, however, rejected the view that state funding of legal services through Interest on Lawyers' Trust Account (IOLTA) funds violated attorneys' rights. See Brown v. Legal Found., 538 U.S. 216, 231-35 (2003).
98. Specifically, the Prison Litigation Reform Act of 1995 enacted the following restrictions with regard to attorneys' fees: (1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility . . . [attorneys'] fees shall not be awarded, except to the extent that - (A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section 2 of the Revised Statutes; and (B) (i) the amount of the fee is proportionately related to the court ordered relief for the violation; or (ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation. (2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant. (3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of title 18, United States Code, for payment of court-appointed counsel. Pub. L. No. 104-134, sec. 803(d), § 7(d), 110 Stat. 1321-66, 1321-71 to 72 (1996) (codified at 42 U.S.C. § 1997e(d) (2000)).
99. See, e.g., Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598 (2001).
100. See, e.g., City of Burlington v. Dague, 505 U.S. 557, 567 (1992).
101. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 110 (2001).
102. Id. at 119.
103. 546 U.S. 440 (2006).
104. Id. at 446.
105. See Philip Morris USA v. Williams, 127 S. Ct. 1057, 1063-65 (2007).
106. See Issacharoff & Sharkey, supra note 13, at 1365-98.
107. See FEDERAL PREEMPTION, supra note 65;
108. see also Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. CHI. L. REV. 429, 471-72 (2002); Issacharoff & Sharkey, supra note 13, at 1433 app. (listing Supreme Court cases involving preemption).
109. See, e.g., Watters v. Wachovia Bank, 127 S. Ct. 1559 (2007) (finding that federal banking law preempts certain state-level regulation); Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) (holding that federal law preempts a state common law tort action). Displaced is what Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) posited: an "assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."
110. 530 U.S. 363 (2000).
111. 539 U.S. 396 (2003).
112. 545 U.S. 1 (2005).
113. Stephen Gardbaum, The Breadth vs. the Depth of Congress's Commerce Power: The Curious History of Preemption During the Lochner Era, in FEDERAL PREEMPTION, supra note 65, at 48, 73.
114. Id. at 73-74.
115. MINORITY STAFF, SPECIAL I NVESTIGATIONS DIV., H. COMM. ON GOV'T REFORM, 109TH CONG., CONGRESSIONAL PREEMPTION OF STATE LAWS AND REGULATIONS 1 (Comm. Print 2006) [hereinafter CONGRESSIONAL PREEMPTION], available at http://oversight.house.gov/documents/20060606095331-23055. pdf.
116. Examples of legislation from the report include proposals to preempt state laws on reproduction, abortion, and end-of-life care. Id. at 2.
117. Pub. L. No. 109-59, sec. 10208, § 30106, 119 Stat. 1144, 1935-36 (2005) (codified at 49 U.S.C. § 30106 (Supp. V 2005)). Some sixteen states imposed liability on rental-car companies when an uninsured driver of a rental car caused harm. CONGRESSIONAL PREEMPTION, supra note 106, at 19; see, e.g., CAL. VEH. CODE § 17150 (West 2000) ("Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner."); N.Y. VEH. & TRAF. LAW § 388(1) (McKinney 2005) ("Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission . . . of such owner."). Congress instead prohibited owners of vehicles from being held "liable under the law of any State" for accidents, if a car was rented and the owner not negligent. 49 U.S.C. § 30106 (Supp. V 2005). A federal district court judge in Florida has twice held this particular preemption to be an unconstitutional exercise of Commerce Clause powers. See Vanguard Car Rental USA, Inc. v. Drouin, 521 F. Supp. 2d 1343, 1350-51 (S.D. Fla. 2007) (Moore, J.); Vanguard Car Rental USA v. Huchon, No. 06-10082, 2007 WL 2875388, at *10 (S.D. Fla. Sept. 14, 2007) (Moore, J.). A Florida state court disagreed, asserting that "motor vehicle leasing transactions unquestionably affect the channels of interstate commerce, the instrumentalities of interstate commerce, and intrastate activities substantially related to interstate commerce." Bechina v. Enter. Leasing Co., No. 3D07-1225, 2007 WL 4322303, at *1 (Fla. Ct. App. Dec. 12, 2007).
118. Pub. L. No. 109-92, §§ 3-4, 119 Stat. 2095, 2096-99 (2005) (codified at 15 U.S.C. §§ 7902-7903 (2006)). Other proposed preemption provisions have not yet passed both the House and the Senate. For example, one proposal would strip federal and state courts of jurisdiction over state tort remedies related to obesity. See Personal Responsibility in Food Consumption Act of 2005, H.R. 554, 109th Cong. §§ 3(a), 4(5) (2005). Another would preempt certain state civil actions for employing spyware while creating federal penalties. See Internet Spyware (I-SPY) Prevention Act of 2005, H.R. 744, 109th Cong., sec. 2, § 1030A(c) (2005).
119. See Sudan Accountability and Divestment Act of 2007, Pub. L. No. 110-174, § 3, 121 Stat. 2516, 2518-19 (Dec. 31, 2007).
120. See Statement on Signing the Sudan Accountability and Divestment Act of 2007, 43 WEEKLY COMP. PRES. DOC. 1646 (Dec. 1, 2007). The President also stated that he shared "the deep concern of the Congress over the continued violence in Darfur perpetrated by the Government of Sudan and rebel groups." Id. He asserted that his administration would "continue its efforts to bring about significant improvements in the conditions in Sudan through sanctions against the Government of Sudan and high level diplomatic engagement and by supporting the deployment of peacekeepers in Darfur." Id.
121. Starr, supra note 65, at xv.
122. A Purcell explains, [F]or the previous thirty years Congress - and the Burger and Rehnquist Courts - had firmly believed that those very same state-law class actions properly 'belonged' in the state courts, not the federal courts. CAFA's supporters, then, could not have chosen to send class actions to the federal courts simply because those cases 'belong' there. Rather, they had to have had some additional reason for acting, a reason of practical policy and anticipated consequences. That reason, the evidence suggests, was their belief that CAFA would terminate large numbers of class actions and prevent many more from ever being filed. Purcell, supra note 2, at 1868-69.
123. Pub. L. No. 107-110, § 1001, 115 Stat. 1425, 1439 (2002) (codified at 20 U.S.C. 6301 (Supp. V 2005)) (establishing federal standards for public schools to "ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at minimum, proficiency on . . . State academic achievement standards and state academic assessments").
124. Pub. L. No. 104-199, 110 Stat. 2419, §§ 2-3 (1996) (codified at 1 U.S.C. § 7 (2000) and 28 U.S.C. § 1738C (2000)) (defining "marriage" under federal law as "only a legal union between one man and one woman as husband and wife" and permitting states to refuse to recognize same-sex relationships that are treated as marriages under another state's laws).
125. See, e.g., Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, sec. 103, § 401, 110 Stat. 2105, 2113 (codified at 42 U.S.C. § 601(a) (2000)) (increasing the "flexibility of States in operating" programs designed to aid needy families and encourage work and marriage).
126. See, e.g., National Highway System Designation Act of 1995, Pub. L. No. 104-59, § 205(d), 109 Stat. 568, 577 (repealing the national maximum speed limit).
127. 388 U.S. 1, 11-12 (1967) (declaring state antimiscegenation laws unconstitutional).
128. See, e.g., 29 U.S.C. § 1055 (2000).
129. See Resnik, Categorical Federalism, supra note 64, at 644-56;
130. Judith Resnik, "Naturally" Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. REV. 1682, 1721-29 (1991) (analyzing the ways in which family relations "can be described as a regime of joint [state and federal] governance").
131. See, e.g, Medellín v. Texas, 128 S. Ct. 1346 (2008); Judith Resnik, Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism, 57 EMORY L.J. 31 (2007).
132. See U.S. CONST., art. I, § 10, cl. 3 (the "Compact Clause") ("No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State, or with a foreign Power . . . ."). For a general discussion of the Compact Clause and the use of interstate compacts, see, for example, Felix Frankfurter & James M. Landis, The Compact Clause of the Constitution - A Study in Interstate Adjustments, 34 YALE L.J. 685 (1925);
133. Jill E. Hasday, Interstate Compacts in a Democratic Society: The Problem of Permanency, 49 FLA. L. REV. 1, 3-5 (1997).
134. See, e.g., Interstate Agreement on Detainers Act, Pub. L. No. 91-538, 84 Stat. 1397 (1970), reprinted in 18 U.S.C. app. at 1520 (2000).
135. The classic analysis is DANIEL J. ELAZAR, EXPLORING FEDERALISM (1987).
136. For in-depth descriptions of these organizations and their import for federalism, see Judith Resnik, Joshua Civin & Joseph Frueh, Don't Sign Kyoto; Don't Cite Foreign Law: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 ARIZ. L. REV. (forthcoming 2008);
137. Joshua Civin, Public Official Associations: Legal Federalism in Theory and Practice 6-11 (Dec. 3, 2001) (unpublished manuscript, on file with author).
138. EARL H. FRY, THE EXPANDING ROLE OF STATE AND LOCAL GOVERNMENTS IN U.S. FOREIGN AFFAIRS 128 (1998).
139. 505 U.S. 144 (1992).
140. See U.S. Conference of Mayors Climate Protection Agreement, Mayors Climate Protection Center, http://usmayors.org/climateprotection/agreement.htm (last visited Apr. 15, 2008).
141. List of Participating Mayors, Mayors Climate Protection Center, http://usmayors.org/climateprotection/list.asp (last visited Apr. 15, 2008).
142. See supra note 108.
143. See supra note 109.
144. See CONGRESSIONAL PREEMPTION, supra note 106, at 19 & n.70 (citing Letter from Michael Balboni, Chair, Nat'l Conference of State Legislatures Comm. on Law and Criminal Justice, to Senator Bill Frist, Senate Majority Leader, and Senator Harry Reid, Senate Minority Leader (Apr. 26, 2005)).
145. See Ed Somers, Gun Immunity Considered by Congress, U.S. MAYOR NEWSPAPER, May 9, 2005, http://www.usmayors.org/uscm/ us_mayor_newspaper/documents/05_09_05/guns.asp.
146. See Letter from Annice M. Wagner, President, Conference of Chief Justices, to Senator Patrick Leahy, Chairman, Senate Comm. on the Judiciary (Mar. 28, 2002), available at http://www.citizen.org/documents/CCJLetter. pdf (arguing that "[a]bsent hard evidence of the inability of the state judicial systems to hear and decide fairly class actions brought in state courts," CAFA was not warranted). This letter was invoked in the February 28, 2005, Statement of Minority Views by Senators Leahy, Kennedy, Biden, Feingold, and Durbin in opposition to CAFA. See S. REP. NO. 109-14, at 82 n.2 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 75.
147. See Letter from Michael Balboni, Chair, Nat'l Conference of State Legislatures Law and Criminal Justice Comm., to U.S. Senate (Feb. 2, 2005), available at http://www.citizen.org/documents/NCSLClasActionLetter2-05. pdf (asserting that CAFA "undermines our system of federalism, disrespects our state court system, and clearly preempts carefully crafted state judicial processes . . . regarding the treatment of class action lawsuits").
148. Letter from Eliot Spitzer, N.Y. Att'y Gen., et al., to Senator Bill Frist, Senate Majority Leader, and Senator Harry Reid, Senate Minority Leader (Feb. 7, 2005) [hereinafter Letter from Fifteen State Attorneys General], reprinted in 151 CONG. REC. H644-45 (daily ed. Feb. 16, 2005). In addition to the New York Attorney General, the letter was also sent on behalf of the Attorneys General of California, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oklahoma, Oregon, Vermont, and West Virginia. Id. at H644.
149. See 151 CONG. REC. S1215-16 (daily ed. Feb. 9, 2005) (statement of Sen. Pryor) (proposing an amendment to the bill).
150. CAFA § 4, 28 U.S.C. § 1332(d) (II) (B) (11) (III) (Supp. V 2005). The distinction is not trivial in that specific statutes are needed rather than the inherent power to act on behalf of the state.
151. Id. § 1332(d) (5) (A). Also excluded are cases involving proposed classes of fewer than one hundred members. Id. § 1332(d) (5) (B).
152. See id. § 1715; see also supra note 25 and accompanying text.
153. See Rubenstein, supra note 25 (manuscript at 5-8).
154. See Letter from Fifteen State Attorneys General, supra note 136, at H645.
155. See, e.g., Civin, supra note 125 (manuscript at 27) (stating that states and government officials signed on to both sides of a dispute over the 1990 census).
156. See, e.g., Brief for the States of New York et al. as Amici Curiae in Support of the Petitioner at 1, Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559 (2007) (No. 05-1342), 2006 WL 2570992, at *1 (arguing on behalf of forty-nine states that federal law ought not to be interpreted to preclude state regulation of banks operating subsidiaries organized under state law). The Supreme Court held otherwise. Watters, 127 U.S. 1559.
157. See Sister Cities International: Frequently Asked Questions, http://www.sister-cities.org/sci/aboutsci/faqs (last visited Apr. 15, 2008).
158. See Nat'l League of Cities v. Usery, 426 U.S. 833, 852 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985).
159. National League of Cities, Resolution 2007-43: Urging More Effective Emergency Preparedness and Response and Action on Related Issues, available at http://nlc.org/ (search for "2007-43"; follow "NLC Resolution #2006-40").
160. See Assemb. B. No. 1108, 2007-08 Leg., Reg. Sess. (Cal. 2007), available at http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_1101-1150/ ab_1108_bill_20071014_chaptered.pdf.
161. See S.F., CAL., HEALTH CODE art. 34 (2008); Council Directive 92/59, 1992 O.J. (L 228) 24 (EEC) (establishing product safety guidelines, including the regulation of dangerous chemicals). On December 14, 2005, the product safety ban on some dangerous chemicals (including phthalates) became permanent in the European Union. See Council Directive 2005/84, 2005 O.J. (L 344) 40 (E.C.). These European materials were cited in the analysis of the California law. See Analysis of Assemb. B. 1108 of the S. Envtl. Quality Comm., 2007-08 Leg., Reg. Sess. 4-5 (Cal. 2007), available at http://leginfo.ca.gov/pub/07-08/bill/asm/ab_1101-1150/ ab_1108_cfa_20070629_163701_sen_comm.html.
162. See, e.g., Complaint at 2, Toy Indus. As'n v. City and County of S.F., No. 06-7111 (N.D. Cal. Nov. 16, 2006) (arguing that the San Francisco's ban "is preempted in part by the [Federal Hazardous Substances Act]"); Complaint at 1, Citikids Baby News, Inc. v. City and County of S.F., No. 06-457303 (Cal. Super. Ct. Oct. 25, 2006) (arguing that San Francisco ordinance banning allegedly dangerous chemicals "is preempted by the Federal Food, Drug and Cosmetic Act"); Stipulation and Order Regarding Hearing of Pending Application for Preliminary Injunction at 2-3, Citikids, No. 06-457303,
163. Wechsler, supra note 4, at 543.
164. See, e.g., New Haven, Conn., Dep't of Police Serv., General Order 06-2 (Dec. 21, 2006); Ariz. Contractors Ass'n., Inc., v. Candelaria, No. 07-2496, 2008 WL 343082 (D. Ariz. Feb. 7, 2008); Lozano v. City of Hazelton, 496 F. Supp. 2d 477 (M.D. Pa. 2007).
165. See, e.g., Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093, 1149-60 (1996).
166. See, e.g., Lynn A. Baker, Putting the Safeguards Back into the Political Safeguards of Federalism, 46 VILL. L. REV. 951, 961-66 (2001);
167. Michael S. Greve, Cartel Federalism? Antitrust Enforcement by State Attorneys General, 72 U. CHI. L. REV. 99, 103-08 (2005).
168. See Rubenstein, supra note 25 (manuscript at 14-21) (describing a case in which the New Jersey Attorney General secured cash payments for state citizens while class counsel settled for coupons).
169. Id. (manuscript at 22-31) (describing case in which thirty-six state attorneys general (or equivalent) objected to a class action settlement and the court did not approve it).
170. JUDICIAL CONFERENCE OF THE U.S., LONG RANGE PLAN FOR THE FEDERAL COURTS, 166 F.R.D. 49, 81 (1995). While I borrow that term, I use it differently, for there, "judicial federalism" is defined to reflect the view that state and federal courts play "different but equally significant" roles comprising an integrated justice system. Id.
171. Some of this work stemmed from efforts, in the 1980s, when federal and state judges began to cross jurisdictional lines simply to talk. In 1990, the Conference of Chief Justices of the State Courts and the Judicial Conference of the United States authorized the creation of a "National Federal-State Judicial Council," resulting in a first-ever national conference of state and federal judges in 1992. See Malcolm M. Lucas, Keynote Address: National Conference on State-Federal Judicial Relationships, 78 VA. L. REV. 1663 (1992). Along with conversation came joint ventures. Despite the formal statutory and doctrinal statements (that federal and state judicial systems are distinct, with few mechanisms for interjurisdictional consolidation), federal and state judges in charge of "All Brooklyn Navy Yard" asbestos cases convened a "state and federal court," and their rulings were captioned with each court's name. See, e.g., In re Joint E. & S. Dists. Asbestos Litig. 737 F. Supp. 735 (E.D.N.Y., S.D.N.Y. & N.Y. Sup. Ct. 1990); In re New York City Asbestos Litig., 123 B.R. 7 (E.D.N.Y., S.D.N.Y. & N.Y. Sup. Ct. 1990); In re Joint E. & S. Dists. Asbestos Litig., 129 F.R.D. 434 (E.D.N.Y., S.D.N.Y. & N.Y. Sup. Ct. 1990). In the Exxon Valdez oil-spill litigation, federal and state judges coordinated scheduling and discovery.
172. See Barnaby J. Feder, Exxon Valdez's Sea of Litigation, N.Y. TIMES, Nov. 19, 1989, at F1 (noting the "unusual joint sitting of the state and Federal courts"); see also Resnik, Federalism's Options, supra note 66, at 482 n.82 (describing how the state and federal courts "[took] turns as the lead" in the Brooklyn Navy Yard cases (internal quotation marks omitted)).
173. See Daniel C. Richman, "Project Exile" and the Allocation of Federal Law Enforcement Authority, 43 ARIZ. L. REV. 369, 370 (2001);
174. see also Daniel C. Richman, The Changing Boundaries Between Federal and Local Enforcement, in 2 CRIMINAL JUSTICE 2000: BOUNDARY CHANGES IN CRIMINAL JUSTICE ORGANIZATIONS (Nat'l Inst. of Justice ed., 2000), available at http://www.ncjrs.gov/criminal_justice2000/vol_2/02d2.pdf.
175. See Resnik, Federalism's Options, supra note 66, at 476-77.
176. For example, under the aegis of the National Asociation of Attorneys General, a "Multistate Antitrust Task Force" was created, and that organization has "Guidelines" for the enforcement. See THOMAS GREENE & ROBERT L. HUBBARD, STATE ANTITRUST ENFORCEMENT 18 (2003) available at http://www.oag.state.ny.us/business/new_antitrust/papers/PLImar03.pdf.
177. For other discussions regarding the coordinated efforts of these officials, see Cornell W. Clayton, Law, Politics and the New Federalism: State Attorneys General as National Policymakers, 56 REV. POL. 525 (1994);
178. Joseph F. Zimmerman, Interstate Cooperation: The Roles of the State Attorneys General, 28 PUBLIUS 71 (1998);
179. Jason Lynch, Note, Federalism, Separation of Powers, and the Role of State Attorneys General in Multistate Liti gation, 101 COLUM. L. REV. 1998 (2001);
180. Note, To Form a More Perfect Union?: Federalism and Informal Interstate Cooperation, 102 HARV. L. REV. 842 (1989).
181. W.B. YEATS, The Second Coming, in W.B. YEATS: THE POEMS 187, 187 (Richard J. Finneran ed., 1983).
182. See, e.g., Hal S. Scott, Federalism and Financial Regulation, in FEDERAL PREEMPTION, supra note 65, at 139. Further, many commentators with different points of view argue that national (or state-based) policies are "better" for consumers.
183. See, e.g., Thomas W. Hazlett, Federal Preemption in Cellular Phone Regulation, in FEDERAL PREEMPTION, supra note 65, at 113.