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Volumn 156, Issue 6, 2008, Pages 1765-1821

Assessing cafa's stated jurisdictional policy

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EID: 54849407634     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper
Times cited : (17)

References (284)
  • 1
    • 54849429881 scopus 로고    scopus 로고
    • CHARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL COURTS 3 (6th ed. 2002).
    • CHARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL COURTS 3 (6th ed. 2002).
  • 2
    • 54849414745 scopus 로고    scopus 로고
    • Id. at 145
    • Id. at 145.
  • 3
    • 54849433043 scopus 로고    scopus 로고
    • For an elegant general theory that offers a seven-factor method for evaluating questions of jurisdictional allocation, see Martin H. Redish, Reassessing the Allocation of judicial Business Between State and Federal Courts: Federal Jurisdiction and The Martian Chronicles, 78 VA. L. REV. 1769, 1770 1992
    • For an elegant general theory that offers a seven-factor method for evaluating questions of jurisdictional allocation, see Martin H. Redish, Reassessing the Allocation of judicial Business Between State and Federal Courts: Federal Jurisdiction and "The Martian Chronicles," 78 VA. L. REV. 1769, 1770 (1992).
  • 4
    • 1542530852 scopus 로고    scopus 로고
    • See, e.g., Charles Gardner Geyh, Paradise Lost, Paradigm Found: Redefining the Judiciary's Imperiled Role in Congress, 71 N.Y.U. L. REV. 1165, 1169 (1996) (noting Congress's increasingly active role with regard to procedure, beginning with its suspension of the Rules of Evidence in 1973).
    • See, e.g., Charles Gardner Geyh, Paradise Lost, Paradigm Found: Redefining the Judiciary's Imperiled Role in Congress, 71 N.Y.U. L. REV. 1165, 1169 (1996) (noting Congress's increasingly active role with regard to procedure, beginning with its suspension of the Rules of Evidence in 1973).
  • 5
    • 54849412681 scopus 로고    scopus 로고
    • Stephen A. Saltzburg et al., The Future of Class Actions in Mass Tort Cases: A Roundtable Discussion, 66 FORD. L. REV. 1657, 1667 (1998) (comments of Judge Edward R. Becker).
    • Stephen A. Saltzburg et al., The Future of Class Actions in Mass Tort Cases: A Roundtable Discussion, 66 FORD. L. REV. 1657, 1667 (1998) (comments of Judge Edward R. Becker).
  • 6
    • 54849416016 scopus 로고    scopus 로고
    • Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified at scattered sections of 28 U.S.C).
    • Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified at scattered sections of 28 U.S.C).
  • 7
    • 54849425891 scopus 로고    scopus 로고
    • See CAFA § 2, 28 U.S.C. § 1711 note Supp. V 2005, setting forth statutory findings and purposes
    • See CAFA § 2, 28 U.S.C. § 1711 note (Supp. V 2005) (setting forth statutory findings and purposes).
  • 8
    • 33646054260 scopus 로고    scopus 로고
    • For an example, see Alan B. Morrison, Removing Class Actions to Federal Court: A Better Way to Handle the Problem of Overlapping Class Actions, 57 STAN. L. REV. 1521, 1522-23 2005, stating: There is, of course, talk about fairer procedures in federal courts, about how appropriate it is for national class actions to be in federal court before a single judge, and about how it would be much more efficient to hear disparate class actions that are filed in different states, but that involve very similar claims, in one forum. But no one should be fooled by such talk. These proposals are unabashed efforts at forum shopping because defendants believe they will improve their chances of success markedly in class actions if they are in federal courts. This conclusion is made clear by the fact that the impact of the removal provisions on state court class actions would far exceed the rationales offered for the amendments. Even when the vast overinclusiveness of these rem
    • For an example, see Alan B. Morrison, Removing Class Actions to Federal Court: A Better Way to Handle the Problem of Overlapping Class Actions, 57 STAN. L. REV. 1521, 1522-23 (2005), stating: There is, of course, talk about fairer procedures in federal courts, about how appropriate it is for national class actions to be in federal court before a single judge, and about how it would be much more efficient to hear disparate class actions that are filed in different states, but that involve very similar claims, in one forum. But no one should be fooled by such talk. These proposals are unabashed efforts at forum shopping because defendants believe they will improve their chances of success markedly in class actions if they are in federal courts. This conclusion is made clear by the fact that the impact of the removal provisions on state court class actions would far exceed the rationales offered for the amendments. Even when the vast overinclusiveness of these removal provisions was pointed out, the bill's proponents did not back off or agree to narrowing amendments. In somewhat the same vein, Professor Burbank says that "any sentient reader of the statute's statement of findings and purposes" would recognize that "[t]hey are, at best, window dressing. Less charitably, they meet the philosopher Harry Frankfurt's definition of 'bullshit,' because they are made with apparent indifference to their truth content."
  • 9
    • 33845739748 scopus 로고    scopus 로고
    • Stephen B. Burbank, Aggregation on the Couch: The Strategic Uses of Ambiguity and Hypocrisy, 106 COLUM. L. REV. 1924, 1942 (2006) (footnotes omitted).
    • Stephen B. Burbank, Aggregation on the Couch: The Strategic Uses of Ambiguity and Hypocrisy, 106 COLUM. L. REV. 1924, 1942 (2006) (footnotes omitted).
  • 10
    • 54849431490 scopus 로고    scopus 로고
    • See EDWARD A. PURCELL, JR., LITIGATION AND INEQUALITY: FEDERAL DIVERSITY JURISDICTION IN INDUSTRIAL AMERICA, 1870-1958 ch. 2 (1992) (describing the manifold ways in which corporate defendants used access to federal court as a method of defeating or frustrating plaintiffs' claims against them).
    • See EDWARD A. PURCELL, JR., LITIGATION AND INEQUALITY: FEDERAL DIVERSITY JURISDICTION IN INDUSTRIAL AMERICA, 1870-1958 ch. 2 (1992) (describing the manifold ways in which corporate defendants used access to federal court as a method of defeating or frustrating plaintiffs' claims against them).
  • 11
    • 54849410713 scopus 로고    scopus 로고
    • See, e.g., Judith Resnik, Naturally Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. REV. 1682, 1730 (1991) (arguing in favor of passage of the Violence Against Women Act, in part to ensure access to federal court for such claims).
    • See, e.g., Judith Resnik, "Naturally" Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. REV. 1682, 1730 (1991) (arguing in favor of passage of the Violence Against Women Act, in part to ensure access to federal court for such claims).
  • 12
    • 54849413695 scopus 로고    scopus 로고
    • I have in mind in part my experience since 1996 as Special Reporter of the Advisory Committee on Civil Rules. In this paper, I speak only on my own behalf and not on behalf of that Committee or anyone else
    • I have in mind in part my experience since 1996 as Special Reporter of the Advisory Committee on Civil Rules. In this paper, I speak only on my own behalf and not on behalf of that Committee or anyone else.
  • 13
    • 54849436737 scopus 로고    scopus 로고
    • John K. Rabiej, The Making of Class Action Rule 23-What Were We Thinking?, 24 MISS. C. L. REV. 323, 347 (2005). Rabiej goes on to describe the Judicial Conference's instruction in 1991 that the committee . . . review Rule 23 with a view to amending it to accommodate the demands of asbestos mass-tort litigation. Id.
    • John K. Rabiej, The Making of Class Action Rule 23-What Were We Thinking?, 24 MISS. C. L. REV. 323, 347 (2005). Rabiej goes on to describe the Judicial Conference's instruction in 1991 that the "committee . . . review Rule 23 with a view to amending it to accommodate the demands of asbestos mass-tort litigation." Id.
  • 14
    • 54849421436 scopus 로고    scopus 로고
    • See generally REPORT OF THE ADVISORY COMMITTEE ON CIVIL RULES AND THE WORKING GROUP ON MASS TORTS TO THE CHIEF JUSTICE OF THE UNITED STATES AND TO THE JUDICIAL CONFERENCE OF THE UNITED STATES (1999) (compiling a variety of materials on related topics); Working Papers of the Advisory Committee On Civil Rules on Proposed Amendments to Civil Rule 23 (May 1, 1997) (unpublished, on file with the author) (compiling, in four of roughly 800 pages each, commentary on the 1996 preliminary draft of possible amendments to Rule 23).
    • See generally REPORT OF THE ADVISORY COMMITTEE ON CIVIL RULES AND THE WORKING GROUP ON MASS TORTS TO THE CHIEF JUSTICE OF THE UNITED STATES AND TO THE JUDICIAL CONFERENCE OF THE UNITED STATES (1999) (compiling a variety of materials on related topics); Working Papers of the Advisory Committee On Civil Rules on Proposed Amendments to Civil Rule 23 (May 1, 1997) (unpublished, on file with the author) (compiling, in four volumes of roughly 800 pages each, commentary on the 1996 preliminary draft of possible amendments to Rule 23).
  • 15
    • 54849419776 scopus 로고    scopus 로고
    • Class Action Fairness Act and the Federalization of Class Actions, 238
    • Edward F. Sherman, Class Action Fairness Act and the Federalization of Class Actions, 238 F.R.D. 504, 504 (2007).
    • (2007) F.R.D , vol.504 , pp. 504
    • Sherman, E.F.1
  • 16
    • 54849403791 scopus 로고    scopus 로고
    • In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1020 (7th Cir. 2002), cert. denied, 537 U.S. 1105 (2003). For a pertinent invocation of this phrase at the outset on a topic I will examine later, see infra text accompanying notes 246-262; see also Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. REV. 1353, 1355 (2006).
    • In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1020 (7th Cir. 2002), cert. denied, 537 U.S. 1105 (2003). For a pertinent invocation of this phrase at the outset on a topic I will examine later, see infra text accompanying notes 246-262; see also Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. REV. 1353, 1355 (2006).
  • 17
    • 54849431896 scopus 로고    scopus 로고
    • See Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909, 969 (1987) (describing successful submission of the Rules Enabling Act - long pushed by conservatives in Congress - as New Deal legislation).
    • See Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909, 969 (1987) (describing successful submission of the Rules Enabling Act - long pushed by conservatives in Congress - as New Deal legislation).
  • 18
    • 54849438418 scopus 로고    scopus 로고
    • As Professor Burbank points out, lawyers in Texas may find federal courts more receptive to class certification than state courts. See Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, 156 U. PA. L. REV. 1439, 1458 n.71 (2008).
    • As Professor Burbank points out, lawyers in Texas may find federal courts more receptive to class certification than state courts. See Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, 156 U. PA. L. REV. 1439, 1458 n.71 (2008).
  • 19
    • 54849437188 scopus 로고    scopus 로고
    • See Richard L. Marcus, Of Babies and Bathwater: The Prospects for Procedural Progress, 59 BROOK L. REV. 761, 789 (1993) (footnotes omitted), stating: 1960s enthusiasm for using the class action as a method of banding claimants together has given way to 1980s and 1990s uneasiness that use of the device will trammel the rights of plaintiffs and permit defendants to steal a march on plaintiffs' individual control of their litigation destinies. Although the 1966 perspective might have been that a number of establishment defendants would blanch at the increased availability of class actions, the perspective a quarter century later is not so one-sided. Some defendants may view class actions as an important tool to deal with widespread liability.
    • See Richard L. Marcus, Of Babies and Bathwater: The Prospects for Procedural Progress, 59 BROOK L. REV. 761, 789 (1993) (footnotes omitted), stating: 1960s enthusiasm for using the class action as a method of banding claimants together has given way to 1980s and 1990s uneasiness that use of the device will trammel the rights of plaintiffs and permit defendants to steal a march on plaintiffs' individual control of their litigation destinies. Although the 1966 perspective might have been that a number of "establishment defendants" would blanch at the increased availability of class actions, the perspective a quarter century later is not so one-sided. Some defendants may view class actions as an important tool to deal with widespread liability.
  • 20
    • 84888467546 scopus 로고    scopus 로고
    • text accompanying notes 109-110
    • See infra text accompanying notes 109-110.
    • See infra
  • 21
    • 54849431895 scopus 로고    scopus 로고
    • 255 U.S. 356, 365-66 (1921).
    • 255 U.S. 356, 365-66 (1921).
  • 22
    • 54849425034 scopus 로고    scopus 로고
    • Id. at 365 (relying on Stewart v. Dunham, 115 U.S. 61 (1885)). In Stewart, the Court held that once there was jurisdiction as between the original plaintiffs and defendants, the court, in exercising jurisdiction between the parties, could incidentally decree in favor of all other creditors coming in under the bill. 115 U.S. at 64.
    • Id. at 365 (relying on Stewart v. Dunham, 115 U.S. 61 (1885)). In Stewart, the Court held that once there was jurisdiction as between the original plaintiffs and defendants, "the court, in exercising jurisdiction between the parties, could incidentally decree in favor of all other creditors coming in under the bill." 115 U.S. at 64.
  • 23
    • 54849435951 scopus 로고    scopus 로고
    • See Judicial Improvements Act of 1990, § 310(a), Pub. L. No. 101-650, 104 Stat. 5089, 5113 (codified at 28 U.S.C. § 1367(b) (2000)) (forbidding supplemental jurisdiction over claims by parties who intervene in diversity cases under Rule 24).
    • See Judicial Improvements Act of 1990, § 310(a), Pub. L. No. 101-650, 104 Stat. 5089, 5113 (codified at 28 U.S.C. § 1367(b) (2000)) (forbidding supplemental jurisdiction over claims by parties who intervene in diversity cases under Rule 24).
  • 24
    • 54849440442 scopus 로고    scopus 로고
    • 545 U.S. 546, 558-59 (2005).
    • 545 U.S. 546, 558-59 (2005).
  • 25
    • 54849439604 scopus 로고    scopus 로고
    • Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 EMORY L.J. 943, 961 n.91 (1991).
    • Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 EMORY L.J. 943, 961 n.91 (1991).
  • 26
    • 54849427169 scopus 로고    scopus 로고
    • See Exxon, 545 U.S. at 589 n.8 (Ginsburg, J., dissenting) (discussing the impact of the majority's analysis on Rosario Ortega v. Star-Kist Foods, Inc., the companion case to Exxon involving a Rule 20 joinder situation).
    • See Exxon, 545 U.S. at 589 n.8 (Ginsburg, J., dissenting) (discussing the impact of the majority's analysis on Rosario Ortega v. Star-Kist Foods, Inc., the companion case to Exxon involving a Rule 20 joinder situation).
  • 28
    • 54849407659 scopus 로고    scopus 로고
    • See, e.g., Merrill Lynch & Co. v. Allegheny Energy, Inc., 500 F.3d 171, 179 (2d Cir. 2007) (Exxon makes clear that its expansive interpretation of § 1367 does not extend to additional parties whose presence defeats diversity.); General Refractories Co. v. First State Ins. Co., 500 F.3d 306, 312 (3d Cir. 2007) (finding that if a nonparty was indispensable under Rule 19(b) but was not diverse, the action should be dismissed); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 351 (2006) (stating that Exxon allows a federal court in a diversity action to exercise supplemental jurisdiction over additional diverse plaintiffs whose claims failed to meet the amount-in-controversy threshold (emphasis added)).
    • See, e.g., Merrill Lynch & Co. v. Allegheny Energy, Inc., 500 F.3d 171, 179 (2d Cir. 2007) ("Exxon makes clear that its expansive interpretation of § 1367 does not extend to additional parties whose presence defeats diversity."); General Refractories Co. v. First State Ins. Co., 500 F.3d 306, 312 (3d Cir. 2007) (finding that if a nonparty was "indispensable" under Rule 19(b) but was not diverse, the action should be dismissed); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 351 (2006) (stating that Exxon allows "a federal court in a diversity action to exercise supplemental jurisdiction over additional diverse plaintiffs whose claims failed to meet the amount-in-controversy threshold" (emphasis added)).
  • 29
    • 54849432105 scopus 로고    scopus 로고
    • Recall Judge Henry Friendly's early criticism of the complete diversity requirement: [W]ho can say whether a Vermont jury, concentrating attention on the one Vermont defendant, would shut its eyes to the merits of the complainants' case, or, realizing that its fellow citizen was only one of a crowd, would deal fairly and squarely with all? A theory so litde founded on realities could hardly be expected to furnish a satisfactory answer to a new and difficult question. Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483, 509 (1928).
    • Recall Judge Henry Friendly's early criticism of the complete diversity requirement: [W]ho can say whether a Vermont jury, concentrating attention on the one Vermont defendant, would shut its eyes to the merits of the complainants' case, or, realizing that its fellow citizen was only one of a crowd, would deal fairly and squarely with all? A theory so litde founded on realities could hardly be expected to furnish a satisfactory answer to a new and difficult question. Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483, 509 (1928).
  • 30
    • 54849426299 scopus 로고    scopus 로고
    • See ZECHARIAH CHAFEE, JR., SOME PROBLEMS OF EQUITY 200, 257 (1950) (stating that the author had as much difficulty distinguishing a common from a several right as in deciding whether some ties were green or blue, and adding that [t]he situation is so tangled and bewildering that I sometimes wonder whether the world would be any the worse off if the class-suit device had been left buried in the learned obscurity of Calvert on Parties to Suits in Equity).
    • See ZECHARIAH CHAFEE, JR., SOME PROBLEMS OF EQUITY 200, 257 (1950) (stating that the author had as much difficulty distinguishing a "common" from a "several" right as in deciding whether some ties were green or blue, and adding that "[t]he situation is so tangled and bewildering that I sometimes wonder whether the world would be any the worse off if the class-suit device had been left buried in the learned obscurity of Calvert on Parties to Suits in Equity").
  • 31
    • 54849428635 scopus 로고    scopus 로고
    • See Snyder v. Harris, 394 U.S. 332, 335 (1969) (recognizing that [t]he 1966 amendment to Rule 23 replaced the old categories with a functional approach to class actions).
    • See Snyder v. Harris, 394 U.S. 332, 335 (1969) (recognizing that "[t]he 1966 amendment to Rule 23 replaced the old categories with a functional approach to class actions").
  • 32
    • 54849428423 scopus 로고    scopus 로고
    • Id. at 338
    • Id. at 338.
  • 33
    • 54849440858 scopus 로고    scopus 로고
    • 414 U.S. 291, 301 (1973).
    • 414 U.S. 291, 301 (1973).
  • 34
    • 54849433687 scopus 로고    scopus 로고
    • See 394 U.S. at 348 (Fortas, J, dissenting, There is certainly no reason the specific application of this body of federal decisional law to class actions should be immune from reevaluation after a fundamental change in the structure of federal class actions has made its continuing application wholly anomalous, see also Redish, supra note 3, at 1808 arguing that the majority's conclusions in Snyder that the pre-1966 rules were not difficult to apply and that the change in the rules was insufficient to warrant a change in jurisdictional doctrine were simply wrong, There was certainly a counterargument to this position, based in part on Rule 82 and also on the limits of the rulemakers' power to affect jurisdiction by rule provision. For arguments on why those limitations do not affect the relevance of the 1966 amendments to the question presented in Snyder, see id. at 1809, which asserts that [t]he Court's reaso
    • See 394 U.S. at 348 (Fortas, J., dissenting) ("There is certainly no reason the specific application of this body of federal decisional law to class actions should be immune from reevaluation after a fundamental change in the structure of federal class actions has made its continuing application wholly anomalous."); see also Redish, supra note 3, at 1808 (arguing that the majority's conclusions in Snyder that the pre-1966 rules were not difficult to apply and that the change in the rules was insufficient to warrant a change in jurisdictional doctrine were "simply wrong"). There was certainly a counterargument to this position, based in part on Rule 82 and also on the limits of the rulemakers' power to affect jurisdiction by rule provision. For arguments on why those limitations do not affect the relevance of the 1966 amendments to the question presented in Snyder, see id. at 1809, which asserts that "[t]he Court's reasoning in Snyder effectively shields the judicial decision not to alter purely judge-made aggregation rules behind a wall of legislative inertia."
  • 35
    • 54849422706 scopus 로고    scopus 로고
    • Benjamin Kaplan, A Prefatory Note, 10 B.C. INDUS. & COM. L. REV. 497, 498 (1969).
    • Benjamin Kaplan, A Prefatory Note, 10 B.C. INDUS. & COM. L. REV. 497, 498 (1969).
  • 36
    • 54849405225 scopus 로고    scopus 로고
    • Carole E. Goldberg, The Influence of Procedural Rules on Federal Jurisdiction, 28 STAN. L. REV. 397, 459 (1976) (footnote omitted).
    • Carole E. Goldberg, The Influence of Procedural Rules on Federal Jurisdiction, 28 STAN. L. REV. 397, 459 (1976) (footnote omitted).
  • 37
    • 54849440441 scopus 로고
    • Pendent Parties, 45
    • noting that [i]t is when interests are several that an out-of-state party is most likely to need the jurisdiction provided by Ben-Hur to protect him from bias in the local court; when interests are joint, a biased tribunal may be unable to injure the outsider without harming a local coparty as well, See
    • See David P. Currie, Pendent Parties, 45 U. CHI. L. REV. 753, 762-63 (1978) (noting that "[i]t is when interests are several that an out-of-state party is most likely to need the jurisdiction provided by Ben-Hur to protect him from bias in the local court; when interests are joint, a biased tribunal may be unable to injure the outsider without harming a local coparty as well").
    • (1978) U. CHI. L. REV , vol.753 , pp. 762-763
    • Currie, D.P.1
  • 38
    • 0039184469 scopus 로고
    • Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the "Class Action Problem," 92
    • discussing the shock waves sent by the restrictive decisions in Snyder and Zahn, See
    • See Arthur R. Miller, Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the "Class Action Problem," 92 HARV. L. REV. 664, 679-80 (1979) (discussing the "shock waves" sent by the "restrictive decisions" in Snyder and Zahn).
    • (1979) HARV. L. REV , vol.664 , pp. 679-680
    • Miller, A.R.1
  • 39
    • 38849149389 scopus 로고
    • The Myth of Parity, 90
    • criticizing the view of parity between federal and state courts, under which state courts could be trusted to provide sufficient protection for federal rights
    • Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105, 1106 (1977) (criticizing the view of "parity" between federal and state courts, under which state courts could be trusted to provide sufficient protection for federal rights).
    • (1977) HARV. L. REV , vol.1105 , pp. 1106
    • Neuborne, B.1
  • 40
    • 54849415591 scopus 로고    scopus 로고
    • See PURCELL, supra note 9, ch. 2 (detailing the various ways in which corporate defendants benefited from having cases in federal court). It is worth noting that most of those advantages seem inapplicable in modern class actions affected by CAFA. The inconvenient location of federal courts in large cities, for example, is unlikely to deter modern class action plaintiffs' lawyers.
    • See PURCELL, supra note 9, ch. 2 (detailing the various ways in which corporate defendants benefited from having cases in federal court). It is worth noting that most of those advantages seem inapplicable in modern class actions affected by CAFA. The inconvenient location of federal courts in large cities, for example, is unlikely to deter modern class action plaintiffs' lawyers.
  • 41
    • 54849429671 scopus 로고    scopus 로고
    • See Morrison, supra note 8, at 1526 (By the mid-1990s, defendants in class actions began to favor federal courts, just as plaintiffs once did. Conversely, many plaintiffs' lawyers began to prefer state courts. (footnote omitted)).
    • See Morrison, supra note 8, at 1526 ("By the mid-1990s, defendants in class actions began to favor federal courts, just as plaintiffs once did. Conversely, many plaintiffs' lawyers began to prefer state courts." (footnote omitted)).
  • 42
    • 1542461814 scopus 로고
    • Parity Reconsidered: Defining a Role for the Federal Judiciary, 36
    • emphasizing that questions of parity or inequality between the federal and state courts depend on empirical judgments for which there is no empirical measure, See
    • See Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. REV. 233, 235-36 (1988) (emphasizing that questions of parity or inequality between the federal and state courts depend on empirical judgments for which there is no empirical measure);
    • (1988) UCLA L. REV , vol.233 , pp. 235-236
    • Chemerinsky, E.1
  • 43
    • 1542776631 scopus 로고
    • Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36
    • arguing that institutional factors such as caseload, support staff, and lifetime appointments mean that the federal courts are preferable, see also
    • see also Martin H. Redish, Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329, 330-31 (1988) (arguing that institutional factors such as caseload, support staff, and lifetime appointments mean that the federal courts are preferable).
    • (1988) UCLA L. REV , vol.329 , pp. 330-331
    • Redish, M.H.1
  • 44
    • 54849431889 scopus 로고    scopus 로고
    • Erik B. Walker, Keep Your Case in State Court, TRIAL, Sept. 2004, at 22, 22 (footnote omitted). An additional factor prompting many plaintiffs' lawyers to prefer state court is the federal courts' gatekeeper function under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). For example, another article in Trial magazine says that Daubert has had a devastating effect on civil plaintiffs, and has made trying cases in federal court a riskier . . . enterprise than at any time in the last 50 years.
    • Erik B. Walker, Keep Your Case in State Court, TRIAL, Sept. 2004, at 22, 22 (footnote omitted). An additional factor prompting many plaintiffs' lawyers to prefer state court is the federal courts' "gatekeeper" function under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). For example, another article in Trial magazine says that Daubert "has had a devastating effect on civil plaintiffs," and "has made trying cases in federal court a riskier . . . enterprise than at any time in the last 50 years."
  • 46
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    • The Role of the Judge in Public Law Litigation, 89
    • Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1291 (1976).
    • (1976) HARV. L. REV , vol.1281 , pp. 1291
    • Chayes, A.1
  • 47
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    • The Supreme Court, 1981 Term - Foreword: Public Law Litigation and the Burger Court, 96
    • Abram Chayes, The Supreme Court, 1981 Term - Foreword: Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4, 28 (1982).
    • (1982) HARV. L. REV , vol.4 , pp. 28
    • Chayes, A.1
  • 48
    • 0032387150 scopus 로고    scopus 로고
    • See David L. Shapiro, Class Actions: The Class as Party and Client, 73 NOTRE DAME L. REV. 913, 919 (1998) (advocating the entity view of the class action in which the class, rather than any particular individual, is the lawyer's client). Professor Shapiro noted the parallels between his views and Professor Chayes's work. Id. at 918 n.7.
    • See David L. Shapiro, Class Actions: The Class as Party and Client, 73 NOTRE DAME L. REV. 913, 919 (1998) (advocating the "entity" view of the class action in which the class, rather than any particular individual, is the lawyer's client). Professor Shapiro noted the parallels between his views and Professor Chayes's work. Id. at 918 n.7.
  • 49
    • 54849408857 scopus 로고    scopus 로고
    • He found inspiration for the latter in Edward H. Cooper, Rule 23: Challenges to the Rulemaking Process, 71 N.Y.U. L. REV. 13 (1996). Shapiro, supra note 45, at 917 n.6.
    • He found inspiration for the latter in Edward H. Cooper, Rule 23: Challenges to the Rulemaking Process, 71 N.Y.U. L. REV. 13 (1996). Shapiro, supra note 45, at 917 n.6.
  • 50
    • 54849426530 scopus 로고    scopus 로고
    • Shapiro, supra note 45, at 921 (citing trade unions, congregations, and municipal governmental entities as voluntary organizations in which members may have limited say in their litigation activities).
    • Shapiro, supra note 45, at 921 (citing trade unions, congregations, and municipal governmental entities as "voluntary" organizations in which members may have limited say in their litigation activities).
  • 51
    • 54849424642 scopus 로고    scopus 로고
    • Id. at 927-34
    • Id. at 927-34.
  • 52
    • 54849422922 scopus 로고    scopus 로고
    • See id. at 939 (arguing that if the class is seen as the litigating entity, then it should be regarded not only as the party plaintiff but as the client). On this score, consider FED. R. CIV. P. 23(g)(4), which directs that [c]lass counsel must fairly and adequately represent the interests of the class.
    • See id. at 939 (arguing that "if the class is seen as the litigating entity, then it should be regarded not only as the party plaintiff but as the client"). On this score, consider FED. R. CIV. P. 23(g)(4), which directs that "[c]lass counsel must fairly and adequately represent the interests of the class."
  • 53
    • 54849423343 scopus 로고    scopus 로고
    • See STEPHEN C. YEAZELL, FROM MEDIEVAL GROUP LITIGATION TO THE MODERN CLASS ACTION ch. 2 & 3 (1987) (describing the medieval origins of suits on behalf, for example, of the residents of a given village).
    • See STEPHEN C. YEAZELL, FROM MEDIEVAL GROUP LITIGATION TO THE MODERN CLASS ACTION ch. 2 & 3 (1987) (describing the medieval origins of suits on behalf, for example, of the residents of a given village).
  • 54
    • 54849427594 scopus 로고    scopus 로고
    • For his discussion of the topic, see Shapiro, supra note 45, at 940: This approach does not imply that class members should be deprived of a significant role in litigation brought on behalf of the class. Even if the class is the relevant litigating entity, it is not one that can act, think, or communicate on its own. In the case of a trade union or corporation, there are preexisting individuals who have been authorized to speak for the entity and who normally would be the ones to work with counsel. In the case of a class that is, in effect, created for purposes of a particular litigation, there is likely to be no preexisting structure, and methods should be devised for creating that structure and endowing it with the widest representation consistent with efficient case management.
    • For his discussion of the topic, see Shapiro, supra note 45, at 940: This approach does not imply that class members should be deprived of a significant role in litigation brought on behalf of the class. Even if the class is the relevant litigating entity, it is not one that can act, think, or communicate on its own. In the case of a trade union or corporation, there are preexisting individuals who have been authorized to speak for the entity and who normally would be the ones to work with counsel. In the case of a class that is, in effect, created for purposes of a particular litigation, there is likely to be no preexisting structure, and methods should be devised for creating that structure and endowing it with the widest representation consistent with efficient case management.
  • 56
    • 54849418514 scopus 로고    scopus 로고
    • For a discussion of the efforts needed to resolve intraclass disputes in an employment class action combining claims of racial and gender discrimination, see Shauna I. Marshall, Class Actions as Instruments of Change: Reflections on Davis v. City and County of San Francisco, 29 U.S.F. L. REV. 911, 915-25 1995, who describes her experiences meeting with class members to discuss and work through differences
    • For a discussion of the efforts needed to resolve intraclass disputes in an employment class action combining claims of racial and gender discrimination, see Shauna I. Marshall, Class Actions as Instruments of Change: Reflections on Davis v. City and County of San Francisco, 29 U.S.F. L. REV. 911, 915-25 (1995), who describes her experiences meeting with class members to discuss and work through differences.
  • 58
    • 54849427589 scopus 로고    scopus 로고
    • See, e.g., Chapman v. Barney, 129 U.S. 677, 682 (1889) (holding that citizenship of mere partnership must be determined by the citizenship of its members).
    • See, e.g., Chapman v. Barney, 129 U.S. 677, 682 (1889) (holding that citizenship of "mere partnership" must be determined by the citizenship of its members).
  • 59
    • 54849403977 scopus 로고    scopus 로고
    • See United Steelworkers of Am. v. R.H. Bouligny, Inc., 382 U.S. 145, 152-53 (1965) (holding that an unincorporated labor union is not a citizen for purposes of diversity jurisdiction).
    • See United Steelworkers of Am. v. R.H. Bouligny, Inc., 382 U.S. 145, 152-53 (1965) (holding that an unincorporated labor union is not a citizen for purposes of diversity jurisdiction).
  • 60
    • 54849418297 scopus 로고    scopus 로고
    • See Carden v. Arkoma Assocs., 494 U.S. 185, 196-97 (1990) (holding that a limited partnership is not a citizen of its home state for purposes of diversity jurisdiction).
    • See Carden v. Arkoma Assocs., 494 U.S. 185, 196-97 (1990) (holding that a limited partnership is not a citizen of its home state for purposes of diversity jurisdiction).
  • 61
    • 54849410711 scopus 로고    scopus 로고
    • WRIGHT & KANE, supra note 1, at 524 (footnote omitted). As discussed below, however, a similar sort of analysis may be necessary to apply the exceptions to CAFA jurisdiction for cases in which a set percentage of class members are local. See infra text accompanying notes 87-108 (providing examples of suits that illustrate the difficulty of applying CAFA's exceptions, which depend on showing that percentages of class members are citizens of the forum state).
    • WRIGHT & KANE, supra note 1, at 524 (footnote omitted). As discussed below, however, a similar sort of analysis may be necessary to apply the exceptions to CAFA jurisdiction for cases in which a set percentage of class members are local. See infra text accompanying notes 87-108 (providing examples of suits that illustrate the difficulty of applying CAFA's exceptions, which depend on showing that percentages of class members are citizens of the forum state).
  • 62
    • 38149065978 scopus 로고    scopus 로고
    • See 28 U.S.C
    • § 1332(c)1, 2000, providing that, for purposes of diversity, a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business
    • See 28 U.S.C. § 1332(c)(1) (2000) (providing that, for purposes of diversity, "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business").
  • 63
    • 54849438018 scopus 로고    scopus 로고
    • Burbank, supra note 8, at 1941-42. For further development of this point, see Burbank, supra note 17, at 1465, who examines the treatment of corporations for purposes of diversity and claims that it was a blunder[] in 1844 that first gave them access to federal court on this ground.
    • Burbank, supra note 8, at 1941-42. For further development of this point, see Burbank, supra note 17, at 1465, who examines the treatment of corporations for purposes of diversity and claims that it was a "blunder[]" in 1844 that first gave them access to federal court on this ground.
  • 64
    • 54849438226 scopus 로고    scopus 로고
    • But see Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 522-23 (1928) (describing a situation in which a corporation did reincorporate in another state to create diversity and thereby make a contract enforceable under the general common law available in federal court, even though it was illegal under state law).
    • But see Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 522-23 (1928) (describing a situation in which a corporation did reincorporate in another state to create diversity and thereby make a contract enforceable under the "general" common law available in federal court, even though it was illegal under state law).
  • 65
    • 54849436941 scopus 로고    scopus 로고
    • As a practical matter, however, such a theory might be only partially effective exactly because the class is assembled solely for purposes of litigation. Sometimes there may be an argument that a class definition is underinclusive, but often plaintiffs' counsel can simply leave out those potential class members whose involvement would prove inconvenient, such as the nondiverse ones.
    • As a practical matter, however, such a theory might be only partially effective exactly because the class is "assembled" solely for purposes of litigation. Sometimes there may be an argument that a class definition is underinclusive, but often plaintiffs' counsel can simply leave out those potential class members whose involvement would prove inconvenient, such as the nondiverse ones.
  • 66
    • 54849424643 scopus 로고    scopus 로고
    • Of course, one could try to solve this problem by defining a class to exclude citizens of the states of which defendant was a citizen. But that sort of misshapen class underscores the artificiality of this contrivance to obtain federal court jurisdiction, and might even be difficult to justify at the class certification stage. Certainly, one could not meaningfully defend an entity view of the class at the same time as one excluded those who would seem clearly to be part of the entity
    • Of course, one could try to solve this problem by defining a class to exclude citizens of the states of which defendant was a citizen. But that sort of misshapen class underscores the artificiality of this contrivance to obtain federal court jurisdiction, and might even be difficult to justify at the class certification stage. Certainly, one could not meaningfully defend an entity view of the class at the same time as one excluded those who would seem clearly to be part of the entity.
  • 67
    • 54849405834 scopus 로고    scopus 로고
    • See Diane Wood Hutchinson, Class Actions: Joinder or Representational Device?, 1983 SUP. CT. REV. 459, 459 (lamenting that the Court has shown no awareness of the choices it has been making).
    • See Diane Wood Hutchinson, Class Actions: Joinder or Representational Device?, 1983 SUP. CT. REV. 459, 459 (lamenting that "the Court has shown no awareness of the choices it has been making").
  • 68
    • 54849426300 scopus 로고    scopus 로고
    • Id. at 482
    • Id. at 482.
  • 69
    • 54849403978 scopus 로고    scopus 로고
    • Id. at 497
    • Id. at 497.
  • 70
    • 0346444530 scopus 로고    scopus 로고
    • Id. at 499. It is worth noting that the ability of class members to collaterally attack the adequacy of representation is disputed. Compare Patrick Woolley, The Availability of Collateral Attack for Inadequate Representation in Class Suits, 79 TEX. L. REV. 383, 388 (2000) (arguing that due process requires that there always be a right for such an attack),
    • Id. at 499. It is worth noting that the ability of class members to collaterally attack the adequacy of representation is disputed. Compare Patrick Woolley, The Availability of Collateral Attack for Inadequate Representation in Class Suits, 79 TEX. L. REV. 383, 388 (2000) (arguing that due process requires that there always be a right for such an attack),
  • 71
    • 54849415561 scopus 로고    scopus 로고
    • with Marcel Kahan & Linda Silberman, Matsushita and Beyond: The Role of State Courts in Class Actions Involving Exclusive Federal Claims, 1996 SUP. CT. REV. 219, 272-80 (arguing that where a proper adequacy-of-representation inquiry is made in a class action and class members have an opportunity to object, there should be no right to attack adequacy collaterally as well).
    • with Marcel Kahan & Linda Silberman, Matsushita and Beyond: The Role of State Courts in Class Actions Involving Exclusive Federal Claims, 1996 SUP. CT. REV. 219, 272-80 (arguing that where a proper adequacy-of-representation inquiry is made in a class action and class members have an opportunity to object, there should be no right to attack adequacy collaterally as well).
  • 72
    • 54849408068 scopus 로고    scopus 로고
    • See Hutchinson, supra note 63, at 504 (The history of the class action, in the end, provides significantly greater support for the representation model than the alternative, even though the nature of the action has changed dramatically over time.).
    • See Hutchinson, supra note 63, at 504 ("The history of the class action, in the end, provides significantly greater support for the representation model than the alternative, even though the nature of the action has changed dramatically over time.").
  • 73
    • 54849434934 scopus 로고    scopus 로고
    • Id. at 506
    • Id. at 506.
  • 74
    • 54849411560 scopus 로고    scopus 로고
    • Thus, in Eisen v. Carlisle & Jacquelin, the Court said that the plaintiff must pay for the cost of notice [to the class] as part of the ordinary burden of financing his own suit. 417 U.S. 156, 179 (1974). Since it will be the lawyer, not the class representative, who pays this cost, the thrust of this statement seems to be to regard the class action as counsel's device. Somewhat similarly, in Deposit Guaranty National Bank v. Roper, the Court said that the right of a litigant to employ Rule 23 is a procedural right only, ancillary to the litigation of substantive claims. 445 U.S. 326, 332 (1980).
    • Thus, in Eisen v. Carlisle & Jacquelin, the Court said that "the plaintiff must pay for the cost of notice [to the class] as part of the ordinary burden of financing his own suit." 417 U.S. 156, 179 (1974). Since it will be the lawyer, not the class representative, who pays this cost, the thrust of this statement seems to be to regard the class action as counsel's device. Somewhat similarly, in Deposit Guaranty National Bank v. Roper, the Court said that "the right of a litigant to employ Rule 23 is a procedural right only, ancillary to the litigation of substantive claims." 445 U.S. 326, 332 (1980).
  • 76
    • 0242458364 scopus 로고    scopus 로고
    • The Dubious Concept of Jurisdiction, 54
    • arguing that there is no qualitative difference between jurisdictional questions and merits questions, See
    • See Evan Tsen Lee, The Dubious Concept of Jurisdiction, 54 HASTINGS L.J. 1613, 1615-27 (2003) (arguing that there is no qualitative difference between "jurisdictional" questions and "merits" questions);
    • (2003) HASTINGS L.J , vol.1613 , pp. 1615-1627
    • Tsen Lee, E.1
  • 77
    • 26444593953 scopus 로고    scopus 로고
    • see also Howard M. Wasserman, Jurisdiction and Merits, 80 WASH. L. REV. 643, 656-62 (2005) (discussing courts' practice of erroneously treating factual elements of a plaintiff's claim as jurisdictional in nature); cf. Arbaugh v. Y & H Corp., 546 U.S. 500, 510, 516 (2006) (noting that the Court has sometimes been profligate in using the term jurisdiction and holding that the need to prove that the defendant employed fifteen employees in order to maintain a suit under Title VII was not jurisdictional).
    • see also Howard M. Wasserman, Jurisdiction and Merits, 80 WASH. L. REV. 643, 656-62 (2005) (discussing courts' practice of erroneously treating factual elements of a plaintiff's claim as jurisdictional in nature); cf. Arbaugh v. Y & H Corp., 546 U.S. 500, 510, 516 (2006) (noting that the Court "has sometimes been profligate" in using the term "jurisdiction" and holding that the need to prove that the defendant employed fifteen employees in order to maintain a suit under Title VII was not "jurisdictional").
  • 78
    • 54849428418 scopus 로고    scopus 로고
    • Thus, although the Court has said that jurisdictional issues must be resolved first, see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1998), it has also said that there is no unyielding jurisdictional hierarchy, and that personal jurisdiction may be resolved before subject matter jurisdiction is established. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578 (1999). Further, in Sinochem International Co. v. Malaysia International Shipping Corp., 127 S. Ct. 1184, 1190 (2007), the Court held that a dismissal on forum non conveniens nonmerits grounds could occur even before the court determines whether it has jurisdiction.
    • Thus, although the Court has said that "jurisdictional" issues must be resolved first, see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1998), it has also said that "there is no unyielding jurisdictional hierarchy," and that personal jurisdiction may be resolved before subject matter jurisdiction is established. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578 (1999). Further, in Sinochem International Co. v. Malaysia International Shipping Corp., 127 S. Ct. 1184, 1190 (2007), the Court held that a dismissal on forum non conveniens nonmerits grounds could occur even before the court determines whether it has jurisdiction.
  • 79
    • 54849424215 scopus 로고    scopus 로고
    • See, e.g., Bowles v. Russell, 127 S. Ct. 2360, 2367 (2007) (holding that the appeal of a habeas corpus petitioner had to be dismissed for lack of jurisdiction because the notice of appeal was filed late, even though the district judge had made a mistake about when the notice was due and the petitioner had filed it before the date specified by the district judge). Justice Souter denounced the majority's decision as a bait and switch, id. at 2367 (Souter, J., dissenting), and the decision was harshly criticized in the press. See, e.g., Editorial, Don't Listen to What the Man Says, N.Y. TIMES, June 17, 2007, § 4, at 11 (attacking the decision as wrong and mean-spirited).
    • See, e.g., Bowles v. Russell, 127 S. Ct. 2360, 2367 (2007) (holding that the appeal of a habeas corpus petitioner had to be dismissed for lack of jurisdiction because the notice of appeal was filed late, even though the district judge had made a mistake about when the notice was due and the petitioner had filed it before the date specified by the district judge). Justice Souter denounced the majority's decision as a "bait and switch," id. at 2367 (Souter, J., dissenting), and the decision was harshly criticized in the press. See, e.g., Editorial, Don't Listen to What the Man Says, N.Y. TIMES, June 17, 2007, § 4, at 11 (attacking the decision as "wrong and mean-spirited").
  • 80
    • 84874306577 scopus 로고    scopus 로고
    • § 1332(d)(5)B, Supp. V 2005
    • 28 U.S.C. § 1332(d)(5)(B) (Supp. V 2005).
    • 28 U.S.C
  • 81
    • 54849421011 scopus 로고    scopus 로고
    • Admittedly there may be a limited risk of later dismissal due to an incorrect determination at the outset that the class has at least 100 members. Indeed, it could be that the ultimate class is defined much differendy than the one originally proposed. But the existence of these variables underscores the possibility of active litigation about the scope of CAFA jurisdiction
    • Admittedly there may be a limited risk of later dismissal due to an incorrect determination at the outset that the class has at least 100 members. Indeed, it could be that the ultimate class is defined much differendy than the one originally proposed. But the existence of these variables underscores the possibility of active litigation about the scope of CAFA jurisdiction.
  • 82
    • 84874306577 scopus 로고    scopus 로고
    • § 1332(d)3
    • 28 U.S.C. § 1332(d)(3).
    • 28 U.S.C
  • 84
    • 54849409076 scopus 로고    scopus 로고
    • Id. § 1332(d)(4)(A)(i)(I), (d)(4)(B).
    • Id. § 1332(d)(4)(A)(i)(I), (d)(4)(B).
  • 86
    • 54849424007 scopus 로고    scopus 로고
    • Id. § 1332(d)(4)(B).
    • Id. § 1332(d)(4)(B).
  • 91
    • 54849403203 scopus 로고    scopus 로고
    • See S. REP. NO. 109-14, at 44 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 42, which states: The Committee understands that in assessing the various criteria established in all these new jurisdictional provisions, a federal court may have to engage in some fact-finding, not unlike what is necessitated by the existing jurisdictional statutes. . . . However, the Committee cautions that these jurisdictional determinations should be made largely on the basis of readily available information. Allowing substantial, burdensome discovery on jurisdictional issues would be contrary to the intent of these provisions to encourage the exercise of federal jurisdiction over class actions.
    • See S. REP. NO. 109-14, at 44 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 42, which states: The Committee understands that in assessing the various criteria established in all these new jurisdictional provisions, a federal court may have to engage in some fact-finding, not unlike what is necessitated by the existing jurisdictional statutes. . . . However, the Committee cautions that these jurisdictional determinations should be made largely on the basis of readily available information. Allowing substantial, burdensome discovery on jurisdictional issues would be contrary to the intent of these provisions to encourage the exercise of federal jurisdiction over class actions.
  • 92
    • 54849440914 scopus 로고    scopus 로고
    • For a discussion of this impact, see William Sullivan & James Fazio III, Changing the Game: Jurisdiction Maneuvering and Early Settlements Likely Results of Class Action Fairness Act, RECORDER (S.F.), June 8, 2005, available at GALE GENERAL ONEF ILE, Doc. No. A133132221: These determinations would appear to require significant discovery from defendants early in the litigation. If defendants are forced to reveal considerable information about the size and location of plaintiff-customers and the injuries they have sustained, that would seem to encourage early setdement because it would give plaintiffs' counsel more information about their claims and potential damages earlier than they might otherwise obtain it.
    • For a discussion of this impact, see William Sullivan & James Fazio III, Changing the Game: Jurisdiction Maneuvering and Early Settlements Likely Results of Class Action Fairness Act, RECORDER (S.F.), June 8, 2005, available at GALE GENERAL ONEF ILE, Doc. No. A133132221: These determinations would appear to require significant discovery from defendants early in the litigation. If defendants are forced to reveal considerable information about the size and location of plaintiff-customers and the injuries they have sustained, that would seem to encourage early setdement because it would give plaintiffs' counsel more information about their claims and potential damages earlier than they might otherwise obtain it.
  • 93
    • 54849419777 scopus 로고    scopus 로고
    • See also Eron Ben-Yehuda, Class-Action Law Could Spark Growth of Jurisdiction Experts, S.F. DAILY J., Aug. 26, 2005, at 1 (suggesting that there might be a need for expert testimony on whether two-thirds of the class members are citizens of one state).
    • See also Eron Ben-Yehuda, Class-Action Law Could Spark Growth of Jurisdiction Experts, S.F. DAILY J., Aug. 26, 2005, at 1 (suggesting that there might be a need for expert testimony on whether two-thirds of the class members are citizens of one state).
  • 94
    • 54849426752 scopus 로고    scopus 로고
    • Evans v. Walter Indus., Inc., 449 F.3d 1159, 1161 (11th Cir. 2006).
    • Evans v. Walter Indus., Inc., 449 F.3d 1159, 1161 (11th Cir. 2006).
  • 95
    • 54849410181 scopus 로고    scopus 로고
    • Id. at 1166
    • Id. at 1166.
  • 96
    • 54849436326 scopus 로고    scopus 로고
    • Id
    • Id.
  • 97
    • 54849415562 scopus 로고    scopus 로고
    • Id
    • Id.
  • 98
    • 54849431891 scopus 로고    scopus 로고
    • Preston v. Tenet Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 804, 808 (5th Cir. 2007).
    • Preston v. Tenet Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 804, 808 (5th Cir. 2007).
  • 99
    • 54849439827 scopus 로고    scopus 로고
    • Id. at 815
    • Id. at 815.
  • 100
    • 54849411767 scopus 로고    scopus 로고
    • Id. at 808-09
    • Id. at 808-09.
  • 101
    • 54849434093 scopus 로고    scopus 로고
    • Id. at 823-24
    • Id. at 823-24.
  • 102
    • 54849429878 scopus 로고    scopus 로고
    • Id. at 815
    • Id. at 815.
  • 103
    • 54849412897 scopus 로고    scopus 로고
    • One defendant joined in the remand motion, and plaintiffs eventually dropped their support for the motion
    • One defendant joined in the remand motion, and plaintiffs eventually dropped their support for the motion.
  • 104
    • 54849430823 scopus 로고    scopus 로고
    • Preston, 485 F.3d at 817.
    • Preston, 485 F.3d at 817.
  • 105
    • 54849424644 scopus 로고    scopus 로고
    • Id. at 820 (Arguably, without knowing the number of persons in the class, the court cannot determine whether one-third of the class members are citizens of Louisiana.).
    • Id. at 820 ("Arguably, without knowing the number of persons in the class, the court cannot determine whether one-third of the class members are citizens of Louisiana.").
  • 106
    • 54849419587 scopus 로고    scopus 로고
    • Id. at 821
    • Id. at 821.
  • 107
    • 54849433253 scopus 로고    scopus 로고
    • Id. at 820
    • Id. at 820.
  • 108
    • 54849431488 scopus 로고    scopus 로고
    • Id. at 821
    • Id. at 821.
  • 109
    • 54849410179 scopus 로고    scopus 로고
    • The court stated, id, We would probably invoke a different analysis if, for example, the class definition included persons trapped in the Ninth Ward in the hours and days following Hurricane Katrina and the levee breach. Under this hypothetical, the ability to quantity such a class, much less parse renters from property owners and other relevant complications, would require more evidence than before the court in this appeal. Here, we know the number of patients. We also know the patients' names, emergency contact information for the deceased patients, and the discrete time period of the episodic event giving rise to the litigation. Moreover, we are not dealing with a class of patients receiving medical care from a national hospital that regularly services out-of-state patients. Memorial Medical Center is a local health care facility primarily servicing the local citizens of New Orleans, as evinced by the local addresses and phone numbers found in the medical records
    • The court stated, id.: We would probably invoke a different analysis if, for example, the class definition included persons trapped in the Ninth Ward in the hours and days following Hurricane Katrina and the levee breach. Under this hypothetical, the ability to quantity such a class, much less parse renters from property owners and other relevant complications, would require more evidence than before the court in this appeal. Here, we know the number of patients. We also know the patients' names, emergency contact information for the deceased patients, and the discrete time period of the episodic event giving rise to the litigation. Moreover, we are not dealing with a class of patients receiving medical care from a national hospital that regularly services out-of-state patients. Memorial Medical Center is a local health care facility primarily servicing the local citizens of New Orleans, as evinced by the local addresses and phone numbers found in the medical records.
  • 110
    • 54849407858 scopus 로고    scopus 로고
    • Id. at 803-04
    • Id. at 803-04.
  • 111
    • 54849435346 scopus 로고    scopus 로고
    • Id. at 800
    • Id. at 800.
  • 113
    • 54849439828 scopus 로고    scopus 로고
    • Id. at 799
    • Id. at 799.
  • 114
    • 54849430633 scopus 로고    scopus 로고
    • Id. at 802
    • Id. at 802.
  • 115
    • 54849422296 scopus 로고    scopus 로고
    • Id. For more Katrina illustrations, see generally Martin v. Lafon Nursing Facility of the Holy Family, Inc., 244 F.R.D. 348 (E.D. La. 2007), and Martin v. Lafon Nursing Facility of the Holy Family, Inc., 244 F.R.D. 352 (E.D. La. 2007), which both deal with whether the Louisiana healthcare provider privilege law precluded the discovery that the plaintiffs sought in order to address the question of remand.
    • Id. For more Katrina illustrations, see generally Martin v. Lafon Nursing Facility of the Holy Family, Inc., 244 F.R.D. 348 (E.D. La. 2007), and Martin v. Lafon Nursing Facility of the Holy Family, Inc., 244 F.R.D. 352 (E.D. La. 2007), which both deal with whether the Louisiana healthcare provider privilege law precluded the discovery that the plaintiffs sought in order to address the question of remand.
  • 116
    • 54849415128 scopus 로고    scopus 로고
    • Obviously this information is regularly harder to get in individual cases when the plaintiff sues in state court
    • Obviously this information is regularly harder to get in individual cases when the plaintiff sues in state court.
  • 117
    • 54849441957 scopus 로고    scopus 로고
    • Saint Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-90 (1938).
    • Saint Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-90 (1938).
  • 118
    • 54849414744 scopus 로고    scopus 로고
    • See, e.g., Lowdermilk v. U.S. Bank Nat'l Ass'n, 479 F.3d 994, 996, 1004 (9th Cir. 2007) (holding that when the plaintiff class's prayer is for in total, less than five million dollars, defendant must show that actually more is at issue if it desires to remove the case to federal court (internal quotation marks omitted)); Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 678 (9th Cir. 2006) (holding that CAFA does not change the requirement that a removing defendant must show that jurisdiction has been established).
    • See, e.g., Lowdermilk v. U.S. Bank Nat'l Ass'n, 479 F.3d 994, 996, 1004 (9th Cir. 2007) (holding that when the plaintiff class's prayer is for "in total, less than five million dollars," defendant must show that actually more is at issue if it desires to remove the case to federal court (internal quotation marks omitted)); Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 678 (9th Cir. 2006) (holding that CAFA does not change the requirement that a removing defendant must show that jurisdiction has been established).
  • 119
    • 54849442579 scopus 로고    scopus 로고
    • See, e.g., Preston, 485 F.3d at 813 (requiring plaintiffs to prove the applicability of the local controversy and home state exceptions); Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021-24 (9th Cir. 2007) (concluding that the party seeking remand bears the burden of proving an exception to CAFA's jurisdiction); Hart v. FedEx Ground Package Sys., Inc., 457 F.3d 675, 679-82 (7th Cir. 2006) (finding that placing the burden of proving the applicability of one of the exceptions on the plaintiff is consistent with the statutory language, legislative history, and stated purpose of the statute).
    • See, e.g., Preston, 485 F.3d at 813 (requiring plaintiffs to prove the applicability of the "local controversy" and "home state" exceptions); Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021-24 (9th Cir. 2007) (concluding that "the party seeking remand" bears the burden of proving an exception to CAFA's jurisdiction); Hart v. FedEx Ground Package Sys., Inc., 457 F.3d 675, 679-82 (7th Cir. 2006) (finding that placing the burden of proving the applicability of one of the exceptions on the plaintiff is consistent with the statutory language, legislative history, and stated purpose of the statute).
  • 120
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    • See supra notes 91-108 and accompanying text (discussing the class action cases arising out of Hurricane Katrina).
    • See supra notes 91-108 and accompanying text (discussing the class action cases arising out of Hurricane Katrina).
  • 121
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    • See infra notes 200-201 and accompanying text (discussing the reasons for a congressional preference for limiting the opportunities for plaintiffs' lawyers to avoid federal court).
    • See infra notes 200-201 and accompanying text (discussing the reasons for a congressional preference for limiting the opportunities for plaintiffs' lawyers to avoid federal court).
  • 122
    • 54849420593 scopus 로고    scopus 로고
    • Morrison, supra note 8, at 1523
    • Morrison, supra note 8, at 1523.
  • 123
    • 54849408470 scopus 로고    scopus 로고
    • See ALI, COMPLEX LITIGATION: STATUTORY RECOMMENDATIONS AND ANALYSIS § 3.02 (1994) (urging the creation of a Complex Litigation Panel to determine when cases should be shifted to a common forum).
    • See ALI, COMPLEX LITIGATION: STATUTORY RECOMMENDATIONS AND ANALYSIS § 3.02 (1994) (urging the creation of a Complex Litigation Panel to determine when cases should be shifted to a common forum).
  • 124
    • 54849410528 scopus 로고    scopus 로고
    • In California, for example, preliminary data on state court class action filings do show a decline in the number of class actions filed in 2005 compared to the number filed in 2004, but the number filed in 2005 was nonetheless higher than the number filed in 2003, which in turn was higher than the number filed in 2002. Put differently, the number filed in 2005 was approximately fifty percent higher than the number filed in 2002. See FED. JUDICIAL CTR., PROGRESS REPORT TO THE ADVISORY COMMITTEE ON CIVIL RULES ON THE IMPACT OF CAFA ON THE FEDERAL COURTS 3-5 & fig.1 (2007), available at http://www.fjc.gov/public/pdf.nsf/ lookup/cafa1107.pdf/$file/cafa1107.pdf.
    • In California, for example, preliminary data on state court class action filings do show a decline in the number of class actions filed in 2005 compared to the number filed in 2004, but the number filed in 2005 was nonetheless higher than the number filed in 2003, which in turn was higher than the number filed in 2002. Put differently, the number filed in 2005 was approximately fifty percent higher than the number filed in 2002. See FED. JUDICIAL CTR., PROGRESS REPORT TO THE ADVISORY COMMITTEE ON CIVIL RULES ON THE IMPACT OF CAFA ON THE FEDERAL COURTS 3-5 & fig.1 (2007), available at http://www.fjc.gov/public/pdf.nsf/ lookup/cafa1107.pdf/$file/cafa1107.pdf.
  • 125
    • 54849433025 scopus 로고    scopus 로고
    • notes 38-40 and accompanying text
    • Supra notes 38-40 and accompanying text.
    • Supra
  • 126
    • 54849419190 scopus 로고    scopus 로고
    • Thus, the first congressional finding supporting CAFA endorses such suits. See CAFA § 2(a)(1, 28 U.S.C. § 1711 note Supp. V 2005, Class action lawsuits are an important and valuable part of the legal system when they permit the fair and efficient resolution of legitimate claims of numerous parties by allowing the claims to be aggregated into a single action against a defendant that has allegedly caused harm
    • Thus, the first congressional finding supporting CAFA endorses such suits. See CAFA § 2(a)(1), 28 U.S.C. § 1711 note (Supp. V 2005) ("Class action lawsuits are an important and valuable part of the legal system when they permit the fair and efficient resolution of legitimate claims of numerous parties by allowing the claims to be aggregated into a single action against a defendant that has allegedly caused harm.").
  • 127
    • 54849432296 scopus 로고    scopus 로고
    • See infra Part V (discussing the possibility of a slippery slope away from Erie and Klaxon and toward the development of substantively uniform law by the federal judiciary).
    • See infra Part V (discussing the possibility of a slippery slope away from Erie and Klaxon and toward the development of substantively uniform law by the federal judiciary).
  • 128
    • 33646024311 scopus 로고    scopus 로고
    • Class Action "Cops": Public Servants or Private Entrepreneurs?, 57
    • attacking the entire idea of private attorneys general enforcing the law via class actions, See, e.g
    • See, e.g., John H. Beisner et al., Class Action "Cops": Public Servants or Private Entrepreneurs?, 57 STAN. L. REV. 1441, 1451-62 (2005) (attacking the entire idea of "private attorneys general" enforcing the law via class actions).
    • (2005) STAN. L. REV , vol.1441 , pp. 1451-1462
    • Beisner, J.H.1
  • 129
    • 54849422106 scopus 로고    scopus 로고
    • Some relatively fervent opponents of CAFA nonetheless seem to appreciate the possibility that federal court class actions could advance the consumer cause. See David Marcus, Erie, the Class Action Fairness Act, and Some Federalism Implications of Diversity Jurisdiction, 48 WM. & MARY L. REV. 1247, 1287 2007, noting that [t]he empowerment of the multistate class action in federal court in the 1980s meant that underlying state law had more regulatory bite
    • Some relatively fervent opponents of CAFA nonetheless seem to appreciate the possibility that federal court class actions could advance the consumer cause. See David Marcus, Erie, the Class Action Fairness Act, and Some Federalism Implications of Diversity Jurisdiction, 48 WM. & MARY L. REV. 1247, 1287 (2007) (noting that "[t]he empowerment of the multistate class action in federal court in the 1980s meant that underlying state law had more regulatory bite").
  • 130
    • 54849411565 scopus 로고    scopus 로고
    • See Hanna v. Plumer, 380 U.S. 460, 463 n.1, 474 (1965) (explaining that the method of service of process in Federal Rule of Civil Procedure 4 is less cumbersome than the competing state method and must be followed by the federal court).
    • See Hanna v. Plumer, 380 U.S. 460, 463 n.1, 474 (1965) (explaining that the method of service of process in Federal Rule of Civil Procedure 4 is "less cumbersome" than the competing state method and must be followed by the federal court).
  • 131
    • 54849436945 scopus 로고    scopus 로고
    • This, at least, is the way in which one Justice read the majority's opinion. Id. at 476 (Harlan, J., concurring).
    • This, at least, is the way in which one Justice read the majority's opinion. Id. at 476 (Harlan, J., concurring).
  • 132
    • 38849100049 scopus 로고
    • Adjudicatory Independence and the Values of Procedural Due Process, 95
    • D]ue process is inadequately protected when an individual must depend on an adjudicator who lacks salary and tenure protection, to protect an entidement to a life, liberty, or property interest, See
    • See Martin H. Redish & Lawrence C. Marshall, Adjudicatory Independence and the Values of Procedural Due Process, 95 YALE L.J. 455, 504 (1986) ("[D]ue process is inadequately protected when an individual must depend on an adjudicator who lacks salary and tenure protection . . . to protect an entidement to a life, liberty, or property interest").
    • (1986) YALE L.J , vol.455 , pp. 504
    • Redish, M.H.1    Marshall, L.C.2
  • 133
    • 54849415795 scopus 로고    scopus 로고
    • Walker, supra note 42, at 22; see also supra text accompanying note 42 (quoting Walker to differentiate the attitudes of elected local judges - who are under pressure to provide fair and quick adjudication - from those of overburdened, life-appointed federal judges - who may be more likely to limit discovery or grant summary judgment).
    • Walker, supra note 42, at 22; see also supra text accompanying note 42 (quoting Walker to differentiate the attitudes of elected local judges - who are under pressure to provide "fair and quick adjudication" - from those of overburdened, life-appointed federal judges - who may be more likely to limit discovery or grant summary judgment).
  • 134
    • 54849442151 scopus 로고    scopus 로고
    • See Civil Justice Reform Act of 1990 §§ 102, 471, 28 U.S.C. § 471 & note (2000). This act directed all federal district
    • See Civil Justice Reform Act of 1990 §§ 102, 471, 28 U.S.C. § 471 & note (2000). This act directed all federal district courts to adopt programs to improve their handling of civil litigation, in large measure by using case management. The legislative history invoked the "benefits of enhanced case management," which it took to mean "that greater and earlier judicial control over civil cases yields faster rates of disposition." S. REP. NO. 101-416, at 16 (1990), reprinted in 1990 U.S.C.C.A.N. 6802, 6819.
  • 135
    • 54849433486 scopus 로고    scopus 로고
    • See supra text accompanying note 42 (asserting that plaintiffs' lawyers prefer state courts because federal courts have increasingly engaged in stringent control of discovery, aggressive encouragement of settlement, and more frequent granting of summary judgment).
    • See supra text accompanying note 42 (asserting that plaintiffs' lawyers prefer state courts because "federal courts have increasingly engaged in stringent control of discovery, aggressive encouragement of settlement, and more frequent granting of summary judgment").
  • 136
    • 54849411137 scopus 로고    scopus 로고
    • For a careful description of the debates that attended the adoption of the 1966 amendments, see Rabiej, supra note 12, at 333-45
    • For a careful description of the debates that attended the adoption of the 1966 amendments, see Rabiej, supra note 12, at 333-45.
  • 137
    • 54849427164 scopus 로고    scopus 로고
    • After much debate, the drafters included a strong warning against use of class actions in mass torts in the Committee Note. Id. at 341-43. Yet in the 1980s courts began to experiment with such class actions, and the Supreme Court recognized in Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), that the rule did not categorically exclude class actions and that District Courts, since the late 1970's, have been certifying such cases in increasing number. Id. at 625. At most, it concluded, the Advisory Committee's warning continues to call for caution. Id.
    • After much debate, the drafters included a strong warning against use of class actions in mass torts in the Committee Note. Id. at 341-43. Yet in the 1980s courts began to experiment with such class actions, and the Supreme Court recognized in Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), that the rule did not categorically exclude class actions and that "District Courts, since the late 1970's, have been certifying such cases in increasing number." Id. at 625. At most, it concluded, the Advisory Committee's warning "continues to call for caution." Id.
  • 138
    • 54849437613 scopus 로고    scopus 로고
    • See COMM. ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE U.S., PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF APPELLATE, CIVIL, AND CRIMINAL PROCEDURE 45-51 (1996) (setting forth several draft amendments to Federal Rule of Civil Procedure 23(b)).
    • See COMM. ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE U.S., PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF APPELLATE, CIVIL, AND CRIMINAL PROCEDURE 45-51 (1996) (setting forth several draft amendments to Federal Rule of Civil Procedure 23(b)).
  • 141
    • 54849433038 scopus 로고    scopus 로고
    • See Shapiro, supra note 45, at 939 (discussing the need to focus on the precise nature of the lawyer's professional responsibility in class actions, and suggesting that the notion of paying special attention to ethical issues in the class action context has merit in several respects (footnote omitted)).
    • See Shapiro, supra note 45, at 939 (discussing the need to "focus on the precise nature of the lawyer's professional responsibility in class actions," and suggesting that "the notion of paying special attention to ethical issues in the class action context has merit in several respects" (footnote omitted)).
  • 142
    • 54849409583 scopus 로고    scopus 로고
    • See DEBORAH R. HENSLER ET AL., RAND CORP. & INST. FOR CIVIL JUSTICE, Executive Summary, CLASS ACTION DILEMMAS: PURSUING PUBLIC GOALS FOR PRIVATE GAIN 24 (1999), available at http://www.rand.org/pubs/ monograph_reports/2005/MR969.1.pdf (saying that what judges do is key to determining the benefit-cost ratio in class actions, and that salutary results followed when judges took responsibility for determining attorney fees).
    • See DEBORAH R. HENSLER ET AL., RAND CORP. & INST. FOR CIVIL JUSTICE, Executive Summary, CLASS ACTION DILEMMAS: PURSUING PUBLIC GOALS FOR PRIVATE GAIN 24 (1999), available at http://www.rand.org/pubs/ monograph_reports/2005/MR969.1.pdf (saying that "what judges do is key to determining the benefit-cost ratio" in class actions, and that salutary results followed when judges "took responsibility for determining attorney fees").
  • 143
    • 54849441735 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(c)(1)(A).
    • FED. R. CIV. P. 23(c)(1)(A).
  • 144
    • 54849415563 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(c)(1)(B).
    • FED. R. CIV. P. 23(c)(1)(B).
  • 145
    • 54849408263 scopus 로고    scopus 로고
    • See FED. R. CIV. P. 23(c)(1)(C) (allowing for an order to be altered or amended only before final judgment). As noted in the Committee Note, the former provision that class certification may be conditional was deleted because [a] court that is not satisfied that the requirements of Rule 23 have been met should refuse certification until they have been met. FED. R. CIV. P. 23 advisory committee's note (2003).
    • See FED. R. CIV. P. 23(c)(1)(C) (allowing for an order to be altered or amended only before final judgment). As noted in the Committee Note, the former provision that class certification "may be conditional" was deleted because "[a] court that is not satisfied that the requirements of Rule 23 have been met should refuse certification until they have been met." FED. R. CIV. P. 23 advisory committee's note (2003).
  • 146
    • 54849415357 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(c)(2)(B).
    • FED. R. CIV. P. 23(c)(2)(B).
  • 148
    • 54849432499 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(e)(2).
    • FED. R. CIV. P. 23(e)(2).
  • 149
    • 54849434730 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(e)(3).
    • FED. R. CIV. P. 23(e)(3).
  • 150
    • 54849415564 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(e)(4).
    • FED. R. CIV. P. 23(e)(4).
  • 151
    • 54849415565 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(e)(5).
    • FED. R. CIV. P. 23(e)(5).
  • 152
    • 84963456897 scopus 로고    scopus 로고
    • note 49 and accompanying text
    • See supra note 49 and accompanying text.
    • See supra
  • 153
    • 54849442364 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(g)(4, The Committee Note to the 2003 Rule 23(g)(1)(B) expands on the meaning of this directive: The rule thus establishes the obligation of class counsel, an obligation that may be different from the customary obligations of counsel to individual clients. Appointment as class counsel means that the primary obligation of counsel is to the class rather than to any individual members of it. The class representatives do not have an unfettered right to fire class counsel. In the same vein, the class representatives cannot command class counsel to accept or reject a setdement proposal. To the contrary, class counsel must determine whether seeking the court's approval of a setdement would be in the best interests of the class as a whole. FED. R. CIV. P. 23 advisory committee's note 2003
    • FED. R. CIV. P. 23(g)(4). The Committee Note to the 2003 Rule 23(g)(1)(B) expands on the meaning of this directive: The rule thus establishes the obligation of class counsel, an obligation that may be different from the customary obligations of counsel to individual clients. Appointment as class counsel means that the primary obligation of counsel is to the class rather than to any individual members of it. The class representatives do not have an unfettered right to "fire" class counsel. In the same vein, the class representatives cannot command class counsel to accept or reject a setdement proposal. To the contrary, class counsel must determine whether seeking the court's approval of a setdement would be in the best interests of the class as a whole. FED. R. CIV. P. 23 advisory committee's note (2003).
  • 154
    • 54849419588 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(g)(1)(A).
    • FED. R. CIV. P. 23(g)(1)(A).
  • 155
    • 54849421657 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(g)(1)(B).
    • FED. R. CIV. P. 23(g)(1)(B).
  • 156
    • 54849408264 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(g)(1)(D).
    • FED. R. CIV. P. 23(g)(1)(D).
  • 157
    • 54849437186 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(g)(2).
    • FED. R. CIV. P. 23(g)(2).
  • 158
    • 54849433487 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(h)(1).
    • FED. R. CIV. P. 23(h)(1).
  • 159
    • 54849405221 scopus 로고    scopus 로고
    • FED. R. CIV. P. 23(h)(2).
    • FED. R. CIV. P. 23(h)(2).
  • 160
    • 54849431045 scopus 로고    scopus 로고
    • Many of them were based on best practices that had been developed under the 1966 rule
    • Many of them were based on "best practices" that had been developed under the 1966 rule.
  • 161
    • 54849416450 scopus 로고    scopus 로고
    • I admit that my attitude may be affected by my involvement in the drafting of these proposals. See Rabiej, supra note 12, at 381 n.240 (noting that I drafted Rules 23(g) and (h)).
    • I admit that my attitude may be affected by my involvement in the drafting of these proposals. See Rabiej, supra note 12, at 381 n.240 (noting that I drafted Rules 23(g) and (h)).
  • 162
    • 54849418982 scopus 로고    scopus 로고
    • For a more detailed explanation of the grounds for Congress to favor having nationwide class actions in federal court, see infra Part IV.B
    • For a more detailed explanation of the grounds for Congress to favor having nationwide class actions in federal court, see infra Part IV.B.
  • 163
    • 54849436135 scopus 로고    scopus 로고
    • E.g., H.R. 2341, 107th Cong. § 1715 (2002); S. 353, 106th Cong. § 1713(c)(2) (1999); S. 2083, 105th Cong. § 1713(c)(1) (1998); S. 1501, 104th Cong. § 1711(g)(1) (1995). For the rules provision, see FED. R. CIV. P. 23(c)(2)(B).
    • E.g., H.R. 2341, 107th Cong. § 1715 (2002); S. 353, 106th Cong. § 1713(c)(2) (1999); S. 2083, 105th Cong. § 1713(c)(1) (1998); S. 1501, 104th Cong. § 1711(g)(1) (1995). For the rules provision, see FED. R. CIV. P. 23(c)(2)(B).
  • 164
    • 54849422923 scopus 로고    scopus 로고
    • CAFA § 3, 28 U.S.C. § 1712(b)2, Supp. V 2005
    • CAFA § 3, 28 U.S.C. § 1712(b)(2) (Supp. V 2005).
  • 165
    • 54849419972 scopus 로고    scopus 로고
    • CAFA § 3, 28 U.S.C. § 1715
    • CAFA § 3, 28 U.S.C. § 1715.
  • 166
    • 54849429674 scopus 로고    scopus 로고
    • Compare CAFA § 3, 28 U.S.C. § 1715(b)(5, requiring service of notice on state and federal officials including any settlement or other agreement contemporaneously made between class counsel and counsel for the defendants, with FED. R. CIV. P. 23(e)3, requiring only the filing of a statement identifying any agreement made in connection widi the proposal to setde; the full agreement need not be provided
    • Compare CAFA § 3, 28 U.S.C. § 1715(b)(5) (requiring service of notice on state and federal officials including "any settlement or other agreement contemporaneously made between class counsel and counsel for the defendants"), with FED. R. CIV. P. 23(e)(3) (requiring only the filing of "a statement identifying any agreement made in connection widi the proposal" to setde; the full agreement need not be provided).
  • 167
    • 34248597453 scopus 로고    scopus 로고
    • The Consumer Class Action Bill of Rights: A Policy and Political Mistake, 58
    • asserting that ambitious politicians will use the opportunity to object to proposed setdements as a platform for their personal political advancement. For an argument denouncing the required notice to state and federal regulatory authorities, see
    • For an argument denouncing the required notice to state and federal regulatory authorities, see Laurens Walker, Essay, The Consumer Class Action Bill of Rights: A Policy and Political Mistake, 58 HASTINGS L.J. 849, 853-55 (2007), asserting that ambitious politicians will use the opportunity to object to proposed setdements as a platform for their personal political advancement.
    • (2007) HASTINGS L.J , vol.849 , pp. 853-855
    • Laurens Walker, E.1
  • 168
    • 54849411986 scopus 로고    scopus 로고
    • See, e.g., Morrison, supra note 8, at 1538 (commenting that the Advisory Committee is recognized as not favoring either plaintiffs or defendants in class actions).
    • See, e.g., Morrison, supra note 8, at 1538 (commenting that the Advisory Committee "is recognized as not favoring either plaintiffs or defendants in class actions").
  • 169
    • 54849433040 scopus 로고    scopus 로고
    • See Figueroa v. Sharper Image Corp., 517 F. Supp. 2d 1292, 1328 (S.D. Fla. 2007) (noting that the attorneys general, as amicus curiae, have objected at every turn to each version of the parties' proposed coupon setdement); see also Julie Kay, Miami Judge Rejects Settlement in Sharper Image Class Action, RECORDER (S.F.), Oct. 15, 2007, available at GALE GENERAL ONEFILE, Doc. No. A169911289 (calling the rejection a stunning blow to the defendant);
    • See Figueroa v. Sharper Image Corp., 517 F. Supp. 2d 1292, 1328 (S.D. Fla. 2007) (noting that the attorneys general, as amicus curiae, "have objected at every turn to each version of the parties' proposed coupon setdement"); see also Julie Kay, Miami Judge Rejects Settlement in Sharper Image Class Action, RECORDER (S.F.), Oct. 15, 2007, available at GALE GENERAL ONEFILE, Doc. No. A169911289 (calling the rejection a "stunning blow" to the defendant);
  • 170
    • 54549107121 scopus 로고    scopus 로고
    • CAFA and Coupons
    • writing that [t]he objectors' persistence, and the substance of their criticisms convinced the judge to reject the settlement, Nov. 12, at
    • Linda S. Mullenix, CAFA and Coupons, NAT'L L.J., Nov. 12, 2007, at 24 (writing that "[t]he objectors' persistence, and the substance of their criticisms" convinced the judge to reject the settlement).
    • (2007) NAT'L L.J , pp. 24
    • Mullenix, L.S.1
  • 171
    • 54849411360 scopus 로고    scopus 로고
    • For example, speaking against an earlier version of CAFA, Representative Lee (Dem., Texas) warned that in cases where the federal court chooses not to certify the state class action, the bill prohibits the states from using class actions to resolve the underlying state causes of action. Class Action Fairness Act of 2001: Hearing on H.R. 2341 Before the H. Comm. on the Judiciary, 107th Cong. 9 (2002) [hereinafter Hearing] (statement of Rep. Sheila Jackson Lee).
    • For example, speaking against an earlier version of CAFA, Representative Lee (Dem., Texas) warned that "in cases where the federal court chooses not to certify the state class action, the bill prohibits the states from using class actions to resolve the underlying state causes of action." Class Action Fairness Act of 2001: Hearing on H.R. 2341 Before the H. Comm. on the Judiciary, 107th Cong. 9 (2002) [hereinafter Hearing] (statement of Rep. Sheila Jackson Lee).
  • 172
    • 0038457119 scopus 로고    scopus 로고
    • Abandoning the Federal Class Action Ship: Is There Smoother Sailing for Class Actions in Gulf Waters?, 74
    • reporting that scrutiny of class certification requirements in federal court class actions has become more heightened in recent years than that of some Gulf Coast state courts, See generally
    • See generally Linda S. Mullenix, Abandoning the Federal Class Action Ship: Is There Smoother Sailing for Class Actions in Gulf Waters?, 74 TUL. L. REV. 1709 (2000) (reporting that scrutiny of class certification requirements in federal court class actions has become more heightened in recent years than that of some Gulf Coast state courts).
    • (2000) TUL. L. REV , vol.1709
    • Mullenix, L.S.1
  • 173
    • 54849423346 scopus 로고    scopus 로고
    • A competing concern, which CAFA does address, is that state court certification of multistate classes can intrude on the law-enforcement activities of other states
    • A competing concern, which CAFA does address, is that state court certification of multistate classes can intrude on the law-enforcement activities of other states.
  • 174
    • 26444450009 scopus 로고    scopus 로고
    • See note 121, at, describing states' curtailment of aggressive certification policies
    • See Marcus, supra note 121, at 1294-95 (describing states' curtailment of aggressive certification policies).
    • supra , pp. 1294-1295
    • Marcus1
  • 175
    • 54849424217 scopus 로고    scopus 로고
    • Rebecca Beyer, Coupon-Based Settlements Get Tougher, S.F. DAILY J., May 29, 2007, at 1.
    • Rebecca Beyer, Coupon-Based Settlements Get Tougher, S.F. DAILY J., May 29, 2007, at 1.
  • 176
    • 54849433685 scopus 로고    scopus 로고
    • Matthew Hirsch, CA Plaintiffs on Verge of $96M Cash Settlement, RECORDER (S.F.), Oct. 17, 2007, available at GALE GENERAL ONEFILE, Doc. No. A170284382.
    • Matthew Hirsch, CA Plaintiffs on Verge of $96M Cash Settlement, RECORDER (S.F.), Oct. 17, 2007, available at GALE GENERAL ONEFILE, Doc. No. A170284382.
  • 177
    • 54849432297 scopus 로고    scopus 로고
    • See Matthew Hirsch, Fees Account for Human Nature: Alameda Courts Delay Some Pay to Keep Class Counsel on Toes, RECORDER (S.F.), Nov. 21, 2007, available at GALE GENERAL ONEFILE, Doc. No. A171853976, (describing the Alameda County Superior Court's practice and reporting that some attorneys say the strategy isn't common elsewhere).
    • See Matthew Hirsch, Fees Account for "Human Nature": Alameda Courts Delay Some Pay to Keep Class Counsel on Toes, RECORDER (S.F.), Nov. 21, 2007, available at GALE GENERAL ONEFILE, Doc. No. A171853976, (describing the Alameda County Superior Court's practice and reporting that "some attorneys say the strategy isn't common elsewhere").
  • 178
    • 54849419191 scopus 로고    scopus 로고
    • See Assem. B. 1505, 2007-08 Reg. Sess. (Cal. 2007) (creating a comprehensive set of procedures to be followed in all class actions).
    • See Assem. B. 1505, 2007-08 Reg. Sess. (Cal. 2007) (creating "a comprehensive set of procedures to be followed in all class actions").
  • 179
    • 54849438225 scopus 로고    scopus 로고
    • Cheryl Miller, Lawmakers Reject New Class Action Rules, RECORDER (S.F.), May 9, 2007, available at GALE GENERAL ONEFILE, Doc. No. A163174405.
    • Cheryl Miller, Lawmakers Reject New Class Action Rules, RECORDER (S.F.), May 9, 2007, available at GALE GENERAL ONEFILE, Doc. No. A163174405.
  • 180
    • 54849410533 scopus 로고    scopus 로고
    • Id
    • Id.
  • 181
    • 54849403794 scopus 로고    scopus 로고
    • See S. 1751, 108th Cong. § 1453(b)(2) (2003) (providing a right to remove by any plaintiff class member who is not a named or representative class member without the consent of all members of such class).
    • See S. 1751, 108th Cong. § 1453(b)(2) (2003) (providing a right to remove "by any plaintiff class member who is not a named or representative class member without the consent of all members of such class").
  • 182
    • 54849422926 scopus 로고    scopus 로고
    • See, e.g., In re High Sulfur Content Gasoline Prods. Liab. Litig., 344 F. Supp. 2d 755, 757 (J.P.M.L. 2004) (placing particular emphasis on prevent[ing] inconsistent pretrial rulings, especially with respect to class certification, in deciding whether to transfer for purposes of consolidation); DAVID F. HERR, MULTIDISTRICT LITIGATION MANUAL § 5.24 (2007) (asserting that if there are conflicting or potentially conflicting class claims in the litigation, transfer is likely regardless of the presence or absence of other factors that would otherwise favor or militate against transfer).
    • See, e.g., In re High Sulfur Content Gasoline Prods. Liab. Litig., 344 F. Supp. 2d 755, 757 (J.P.M.L. 2004) (placing particular emphasis on "prevent[ing] inconsistent pretrial rulings, especially with respect to class certification," in deciding whether to transfer for purposes of consolidation); DAVID F. HERR, MULTIDISTRICT LITIGATION MANUAL § 5.24 (2007) (asserting that "if there are conflicting or potentially conflicting class claims in the litigation, transfer is likely regardless of the presence or absence of other factors that would otherwise favor or militate against transfer").
  • 183
    • 54849410532 scopus 로고    scopus 로고
    • For an example, see Carlough v. Amchem Products, Inc., 10 F.3d 189 (3d Cir. 1993), in which the Third Circuit reviewed a West Virginia state court order purporting to opt all West Virginia residents out of a class action that was in settlement review in federal court. Not only did this order threaten to undermine the federal court's settlement-review process, but it also would have prevented any West Virginia class members who wanted to participate in the class setdement from doing so. Id at 203. The Third Circuit upheld the district court's injunction against the state court order. Id. at 204.
    • For an example, see Carlough v. Amchem Products, Inc., 10 F.3d 189 (3d Cir. 1993), in which the Third Circuit reviewed a West Virginia state court order purporting to opt all West Virginia residents out of a class action that was in settlement review in federal court. Not only did this order threaten to undermine the federal court's settlement-review process, but it also would have prevented any West Virginia class members who wanted to participate in the class setdement from doing so. Id at 203. The Third Circuit upheld the district court's injunction against the state court order. Id. at 204.
  • 184
    • 54849431894 scopus 로고    scopus 로고
    • For an example, see In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 134 F.3d 133, 137 (3d Cir. 1998), in which, after a proposed settlement was rejected in federal court, the parties repaired to the 18th Judicial District for the Parish of Iberville, Louisiana, where a similar suit had been pending, restructured their deal, and submitted it to the Louisiana court, which ultimately approved it as a national class action settlement. The Third Circuit held that, because by then there was no class settlement pending before the federal court, there was no justification for a federal injunction against the proceedings in state court. Id. at 145.
    • For an example, see In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 134 F.3d 133, 137 (3d Cir. 1998), in which, after a proposed settlement was rejected in federal court, the parties "repaired to the 18th Judicial District for the Parish of Iberville, Louisiana, where a similar suit had been pending, restructured their deal, and submitted it to the Louisiana court, which ultimately approved it" as a national class action settlement. The Third Circuit held that, because by then there was no class settlement pending before the federal court, there was no justification for a federal injunction against the proceedings in state court. Id. at 145.
  • 185
    • 54849413477 scopus 로고    scopus 로고
    • The most famous illustration involves an aggressive use of federal injunctive power to prevent such second chance certification. In In re Bridgestone/Firestone, Inc, Tires Products Liability Litigation, 333 F.3d 763, 769 7th Cir. 2003, the Seventh Circuit directed that all members of the proposed class be enjoined from seeking nationwide class certification in another court after it had ruled that nationwide certification was improper. Although the decision could be challenged in regards to the power of a federal court to enjoin state court litigation, Judge Easterbrook's opinion emphasizes the disruptive potential of parallel class-certification efforts: Relitigation can turn even an unlikely outcome into reality. Suppose that every state in the nation would as a matter of first principles deem inappropriate a nationwide class covering these claims and products. What this might mean in practice is something like 9 of 10 judges in every state would rule agai
    • The most famous illustration involves an aggressive use of federal injunctive power to prevent such "second chance" certification. In In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, 333 F.3d 763, 769 (7th Cir. 2003), the Seventh Circuit directed that all members of the proposed class be enjoined from seeking nationwide class certification in another court after it had ruled that nationwide certification was improper. Although the decision could be challenged in regards to the power of a federal court to enjoin state court litigation, Judge Easterbrook's opinion emphasizes the disruptive potential of parallel class-certification efforts: Relitigation can turn even an unlikely outcome into reality. Suppose that every state in the nation would as a matter of first principles deem inappropriate a nationwide class covering these claims and products. What this might mean in practice is something like "9 of 10 judges in every state would rule against certifying a nationwide class" . . . . Although the 10% that see things otherwise are a distinct minority, one is bound to turn up if plaintiffs file enough suits - and, if one nationwide class is certified, then all the no-certification decisions fade into insignificance. A single positive trumps all the negatives. Id. at 766-67. For a case that reached the opposite conclusion, see Bailey v. State Farm Fire & Casualty Co., 414 F.3d 1187 (10th Cir. 2005). There, the Tenth Circuit held that a federal court's refusal to enjoin efforts by other plaintiffs to obtain class certification for a class that the federal court had refused to certify did not require issuance of an injunction preventing their repeat tries. The Court focused particularly on the fact that the defendant approached the federal court only after litigating class certification in state court and that the district judge "acted out of respect for the work already performed by the state court." Id. at 1190.
  • 186
    • 54849442798 scopus 로고    scopus 로고
    • See generally RICHARD L. MARCUS & EDWARD F. SHERMAN, COMPLEX LITIGATION: CASES AND MATERIALS ON ADVANCED CIVIL PROCEDURE 164-209 (4th ed. 2004) (presenting and discussing cases that have confronted the issue of dual federal-state proceedings).
    • See generally RICHARD L. MARCUS & EDWARD F. SHERMAN, COMPLEX LITIGATION: CASES AND MATERIALS ON ADVANCED CIVIL PROCEDURE 164-209 (4th ed. 2004) (presenting and discussing cases that have confronted the issue of dual federal-state proceedings).
  • 187
    • 54849410926 scopus 로고    scopus 로고
    • Geoffrey P. Miller, Overlapping Class Actions, 71 N.Y.U. L. REV. 514, 517 (1996).
    • Geoffrey P. Miller, Overlapping Class Actions, 71 N.Y.U. L. REV. 514, 517 (1996).
  • 188
    • 54849413266 scopus 로고    scopus 로고
    • See Civil Rules Advisory Comm., Minutes 23 (Oct. 6-7, 1997), available at http://www.uscourts.gov/rules/Minutes/cvlo-97.htm (reporting that the data from the Federal Judicial Center showed at least one overlapping action in twenty to forty percent of the federal court class actions it had studied);
    • See Civil Rules Advisory Comm., Minutes 23 (Oct. 6-7, 1997), available at http://www.uscourts.gov/rules/Minutes/cvlo-97.htm (reporting that the data from the Federal Judicial Center showed at least one overlapping action in twenty to forty percent of the federal court class actions it had studied);
  • 189
    • 0034381813 scopus 로고    scopus 로고
    • see also Rhonda Wasserman, Dueling Class Actions, 80 B.U. L. REV. 461 (2000) (discussing the problems caused by overlapping class actions).
    • see also Rhonda Wasserman, Dueling Class Actions, 80 B.U. L. REV. 461 (2000) (discussing the problems caused by overlapping class actions).
  • 190
    • 54849418983 scopus 로고    scopus 로고
    • See generally Edward H. Cooper, Aggregation and Settlement of Mass Torts, 148 U. PA. L. REV. 1943 (2000) (detailing what Cooper labeled the All-Encompassing Model and the Rule 23 model and describing the challenges they present).
    • See generally Edward H. Cooper, Aggregation and Settlement of Mass Torts, 148 U. PA. L. REV. 1943 (2000) (detailing what Cooper labeled the "All-Encompassing Model" and the Rule 23 model and describing the challenges they present).
  • 191
    • 25444475505 scopus 로고    scopus 로고
    • Benign Neglect Reconsidered, 148
    • For my evaluation of those proposals, see
    • For my evaluation of those proposals, see Richard L. Marcus, Benign Neglect Reconsidered, 148 U. PA. L. REV. 2009 (2000).
    • (2000) U. PA. L. REV. 2009
    • Marcus, R.L.1
  • 192
  • 193
    • 54549096928 scopus 로고    scopus 로고
    • See Emery G. Lee III & Thomas E. Willging, The Impact of the Class Action Fairness Act on the Federal Courts: An Empirical Analysis of Filings and Removals, 156 U. PA. L. REV. 1723, 1759 & fig.6 (2008) (displaying the varyiance in filing activity before and after CAFA in the different circuits).
    • See Emery G. Lee III & Thomas E. Willging, The Impact of the Class Action Fairness Act on the Federal Courts: An Empirical Analysis of Filings and Removals, 156 U. PA. L. REV. 1723, 1759 & fig.6 (2008) (displaying the varyiance in filing activity before and after CAFA in the different circuits).
  • 194
    • 54849419778 scopus 로고    scopus 로고
    • See Memorandum from David F. Levi, U.S. Dist. Judge, to the Civil Rules Advisory Comm. 17 (May 7, 2002) (on file with author), which concluded For these reasons the Advisory Committee on the Federal Rules of Civil Procedure respectfully recommends to the Standing Committee on the Rules of Practice and Procedure and to the Committee on Federal-State Jurisdiction that they support the concept of minimal diversity for large, multistate class actions, in which the interests of no one state are paramount, with appropriate limitations or threshold requirements so that the federal courts are not unduly burdened and the states' jurisdiction over in-state class actions is left undisturbed.
    • See Memorandum from David F. Levi, U.S. Dist. Judge, to the Civil Rules Advisory Comm. 17 (May 7, 2002) (on file with author), which concluded For these reasons the Advisory Committee on the Federal Rules of Civil Procedure respectfully recommends to the Standing Committee on the Rules of Practice and Procedure and to the Committee on Federal-State Jurisdiction that they support the concept of minimal diversity for large, multistate class actions, in which the interests of no one state are paramount, with appropriate limitations or threshold requirements so that the federal courts are not unduly burdened and the states' jurisdiction over in-state class actions is left undisturbed.
  • 195
    • 54849440028 scopus 로고    scopus 로고
    • See Lee & Willging, supra note 182, at 1730 (reporting that in March of 2003, the Judicial Conference shifted course and adopted a resolution endorsing the premise that minimal diversity jurisdiction could be appropriate for federal court jurisdiction over multistate class actions).
    • See Lee & Willging, supra note 182, at 1730 (reporting that in March of 2003, the Judicial Conference shifted course and adopted a resolution endorsing the premise that minimal diversity jurisdiction could be appropriate for federal court jurisdiction over multistate class actions).
  • 196
    • 54849440654 scopus 로고    scopus 로고
    • See infra Part IV.B for a discussion of this rationale for CAFA. I am not contending that this objective must be viewed as procedural in the sense that, by itself, it would serve as a ground for rulemaking, but it certainly was a relevant point to make to Congress about legislation that would also have the advantage of solving a procedural problem.
    • See infra Part IV.B for a discussion of this rationale for CAFA. I am not contending that this objective must be viewed as "procedural" in the sense that, by itself, it would serve as a ground for rulemaking, but it certainly was a relevant point to make to Congress about legislation that would also have the advantage of solving a procedural problem.
  • 197
    • 54849438796 scopus 로고    scopus 로고
    • See supra Part IV.A.1 (noting that ensuring the application of federal class action procedures could be a rational goal for Congress to have).
    • See supra Part IV.A.1 (noting that ensuring the application of federal class action procedures could be a rational goal for Congress to have).
  • 198
    • 54849415989 scopus 로고    scopus 로고
    • For arguments that CAFA significantly broadened the authority of federal courts to enjoin class action proceedings in state court, see Tobias Barrington Wolff, Federal Jurisdiction and Due Process in the Era of the Nationwide Chss Action, 156 U. PA. L. REV. 2035, pt. 1 (2008, Professors Issacharoff and Nagareda argue that CAFA should also limit the ability of class members to challenge the binding effect of federal court class action judgments. This would provide another potential way to insulate federal class action proceedings from disruption due to collateral litigation in either state or federal court
    • For arguments that CAFA significantly broadened the authority of federal courts to enjoin class action proceedings in state court, see Tobias Barrington Wolff, Federal Jurisdiction and Due Process in the Era of the Nationwide Chss Action, 156 U. PA. L. REV. 2035, pt. 1 (2008). Professors Issacharoff and Nagareda argue that CAFA should also limit the ability of class members to challenge the binding effect of federal court class action judgments. This would provide another potential way to insulate federal class action proceedings from disruption due to collateral litigation (in either state or federal court).
  • 199
    • 54849403960 scopus 로고    scopus 로고
    • Class Settlements Under Attack, 156
    • See
    • See Samuel Issacharoff & Richard A. Nagareda, Class Settlements Under Attack, 156 U. PA. L. REV. 1649, 1659 (2008).
    • (2008) U. PA. L. REV , vol.1649 , pp. 1659
    • Issacharoff, S.1    Nagareda, R.A.2
  • 200
    • 54849422924 scopus 로고    scopus 로고
    • See WRIGHT & KANE, supra note 1, at 153 & n.54 (finding that the traditional justifications for diversity jurisdiction are no longer present and positing that its endurance is due largely to lawyers' efforts to retain it).
    • See WRIGHT & KANE, supra note 1, at 153 & n.54 (finding that the traditional justifications for diversity jurisdiction are no longer present and positing that its endurance is due largely to lawyers' efforts to retain it).
  • 201
    • 54849417483 scopus 로고    scopus 로고
    • FED. COURTS STUDY COMM., REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 38-44 (1990).
    • FED. COURTS STUDY COMM., REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 38-44 (1990).
  • 202
    • 54849417689 scopus 로고    scopus 로고
    • Id. at 44
    • Id. at 44.
  • 203
    • 54849415131 scopus 로고    scopus 로고
    • Linda Silberman, Can the State of Minnesota Bind the Nation?: Federal Choice-of-Law Constraints After Allstate Insurance Co. v. Hague, 10 HOFSTRA L. REV. 103 (1981).
    • Linda Silberman, Can the State of Minnesota Bind the Nation?: Federal Choice-of-Law Constraints After Allstate Insurance Co. v. Hague, 10 HOFSTRA L. REV. 103 (1981).
  • 204
    • 54849423559 scopus 로고    scopus 로고
    • For an example of a case in which one might make such an argument, see Mooney v. Allianz Life Insurance Co. of North America, 244 F.R.D. 531, 534-35 (D. Minn. 2007), which holds that the defendant's Minnesota contacts were sufficient to permit application of Minnesota law to the claims of non-Minnesota class members in a consumer fraud suit.
    • For an example of a case in which one might make such an argument, see Mooney v. Allianz Life Insurance Co. of North America, 244 F.R.D. 531, 534-35 (D. Minn. 2007), which holds that the defendant's Minnesota contacts were sufficient to permit application of Minnesota law to the claims of non-Minnesota class members in a consumer fraud suit.
  • 205
    • 54849435745 scopus 로고    scopus 로고
    • See, e.g., Marcus, supra note 121, at 1294 (recognizing that under Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801 (Ill. 2005), [t]he application of the uniquely restrictive Illinois law to the whole country . . . illustrate[s] the potentially abusive power one remote county court could exercise).
    • See, e.g., Marcus, supra note 121, at 1294 (recognizing that under Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801 (Ill. 2005), "[t]he application of the uniquely restrictive Illinois law to the whole country . . . illustrate[s] the potentially abusive power one remote county court could exercise").
  • 206
    • 54849436329 scopus 로고    scopus 로고
    • See CAFA § 2(b)(2, 28 U.S.C. § 1711 note Supp. V 2005, stating that one purpose of the legislation was to restore the intent of the framers of the United States Constitution by providing for Federal court consideration of interstate cases of national importance under diversity jurisdiction
    • See CAFA § 2(b)(2), 28 U.S.C. § 1711 note (Supp. V 2005) (stating that one purpose of the legislation was to "restore the intent of the framers of the United States Constitution by providing for Federal court consideration of interstate cases of national importance under diversity jurisdiction").
  • 207
    • 54849439601 scopus 로고    scopus 로고
    • Supra Part IV.A.1.
    • Supra Part IV.A.1.
  • 208
    • 54849404583 scopus 로고    scopus 로고
    • CAFA § 4(a, 28 U.S.C. § 1332d, 2, Supp. V 2005
    • CAFA § 4(a), 28 U.S.C. § 1332(d) (2) (Supp. V 2005).
  • 209
    • 84888442523 scopus 로고    scopus 로고
    • note 117 and accompanying text explaining research from California class action filings supporting this point
    • See supra note 117 and accompanying text (explaining research from California class action filings supporting this point).
    • See supra
  • 210
    • 33846608465 scopus 로고    scopus 로고
    • Part III discussing the many difficult determinations that must be made in order to apply CAFA
    • See supra Part III (discussing the many difficult determinations that must be made in order to apply CAFA).
    • See supra
  • 211
    • 54849425653 scopus 로고    scopus 로고
    • See supra Part IV.A (supporting the legitimacy of Congress's desire to apply what it views as superior federal class action rules).
    • See supra Part IV.A (supporting the legitimacy of Congress's desire to apply what it views as superior federal class action rules).
  • 212
    • 54849421016 scopus 로고    scopus 로고
    • The poster child among witnesses before Congress on this point was Hilda Bankston, who testified about how her late husband - a Mississippi pharmacist - was named as a defendant in a large number of pharmaceutical products liability suits to defeat diversity and prevent removal to federal court. See Hearing, supra note 162, at 34-36 (testimony of Hilda Bankston, former small business owner).
    • The poster child among witnesses before Congress on this point was Hilda Bankston, who testified about how her late husband - a Mississippi pharmacist - was named as a defendant in a large number of pharmaceutical products liability suits to defeat diversity and prevent removal to federal court. See Hearing, supra note 162, at 34-36 (testimony of Hilda Bankston, former small business owner).
  • 213
    • 54849413094 scopus 로고    scopus 로고
    • CAFA § 4(a, 28 U.S.C. § 1332(d)(3, Among the statutory considerations relevant to the decision of whether to exercise the new jurisdiction is whether the class action has been pleaded in a manner that seeks to avoid Federal jurisdiction. § 1332d, 3, C
    • CAFA § 4(a), 28 U.S.C. § 1332(d)(3). Among the statutory considerations relevant to the decision of whether to exercise the new jurisdiction is "whether the class action has been pleaded in a manner that seeks to avoid Federal jurisdiction." § 1332(d) (3) (C).
  • 214
    • 0035467602 scopus 로고    scopus 로고
    • See John H. Beisner & Jessica Davidson Miller, They're Making a Federal Case Out of It . . . in State Court, 25 HARV. J.L. & PUB. POL'Y 143, 160 (2001) (reporting a 1850% rise in class filings over three years in Madison County, Illinois, from two to thirty-nine).
    • See John H. Beisner & Jessica Davidson Miller, They're Making a Federal Case Out of It . . . in State Court, 25 HARV. J.L. & PUB. POL'Y 143, 160 (2001) (reporting a 1850% rise in class filings over three years in Madison County, Illinois, from two to thirty-nine).
  • 215
    • 54849409286 scopus 로고    scopus 로고
    • THOMAS E. WILLGING & SHANNON R. WHEATMAN, FED. JUDICIAL CTR., AN EMPIRICAL EXAMINATION OF ATTORNEYS' CHOICE OF FORUM IN CLASS ACTION LITIGATION 34-36 (2005), available at http://www.fjc.gov/public/pdf.nsf/lookup/ ClAct05.pdf/$file/ClAct05.pdf.
    • THOMAS E. WILLGING & SHANNON R. WHEATMAN, FED. JUDICIAL CTR., AN EMPIRICAL EXAMINATION OF ATTORNEYS' CHOICE OF FORUM IN CLASS ACTION LITIGATION 34-36 (2005), available at http://www.fjc.gov/public/pdf.nsf/lookup/ ClAct05.pdf/$file/ClAct05.pdf.
  • 216
    • 54849414937 scopus 로고    scopus 로고
    • Id. at 34-41
    • Id. at 34-41.
  • 217
    • 54849434506 scopus 로고    scopus 로고
    • TERRENCE DUNGWORTH & NICHOLAS M. PACE, RAND CORP. & INST. FOR CIVIL JUSTICE, STATISTICAL OVERVIEW OF CIVIL LITIGATION IN THE FEDERAL COURTS 17-25 (1990).
    • TERRENCE DUNGWORTH & NICHOLAS M. PACE, RAND CORP. & INST. FOR CIVIL JUSTICE, STATISTICAL OVERVIEW OF CIVIL LITIGATION IN THE FEDERAL COURTS 17-25 (1990).
  • 218
    • 54849404585 scopus 로고    scopus 로고
    • Supra Part IV.A.1.
    • Supra Part IV.A.1.
  • 219
    • 54849404386 scopus 로고    scopus 로고
    • Supra Part IV.A.2.
    • Supra Part IV.A.2.
  • 220
    • 54849432301 scopus 로고    scopus 로고
    • Supra Part IV.B.
    • Supra Part IV.B.
  • 221
    • 54849421875 scopus 로고    scopus 로고
    • text accompanying notes 16-18
    • Supra text accompanying notes 16-18.
    • Supra
  • 222
    • 33845753972 scopus 로고    scopus 로고
    • Settled Expectations in a World of Unsettled Law: Choice of Law After the Class Action Fairness Act, 106
    • hereinafter Issacharoff, Settled Expectations, Issacharoff & Sharkey, supra note 15;
    • Samuel Issacharoff, Settled Expectations in a World of Unsettled Law: Choice of Law After the Class Action Fairness Act, 106 COLUM. L. REV. 1839 (2006) [hereinafter Issacharoff, Settled Expectations]; Issacharoff & Sharkey, supra note 15;
    • (2006) COLUM. L. REV. 1839
    • Issacharoff, S.1
  • 223
    • 54849436136 scopus 로고    scopus 로고
    • Samuel Issacharoff, Getting Beyond Kansas, 74 UMKC L. REV. 613 (2006) [hereinafter Issacharoff, Beyond Kansas].
    • Samuel Issacharoff, Getting Beyond Kansas, 74 UMKC L. REV. 613 (2006) [hereinafter Issacharoff, Beyond Kansas].
  • 224
    • 54849409287 scopus 로고
    • They Can't Do That, Can They? Tort Reform via Rule 23, 80
    • Richard L. Marcus, They Can't Do That, Can They? Tort Reform via Rule 23, 80 CORNELL L. REV. 858 (1995).
    • (1995) CORNELL L. REV , vol.858
    • Marcus, R.L.1
  • 225
    • 54849441118 scopus 로고    scopus 로고
    • Id. at 859-66
    • Id. at 859-66.
  • 226
    • 0037360189 scopus 로고    scopus 로고
    • The Preexistence Principle and the Structure of the Class Action, 103
    • Richard A. Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 COLUM. L. REV. 149, 156-57 (2003).
    • (2003) COLUM. L. REV , vol.149 , pp. 156-157
    • Nagareda, R.A.1
  • 227
    • 54849434298 scopus 로고    scopus 로고
    • Compare Arthur John Keeffe et al., Weary Erie, 34 CORNELL L.Q. 494, 497 (1949), who makes such an assertion in the twentieth century: Unquestionably Article III of the Constitution designates the federal courts as proper forums to litigate suits between Citizens of different States. Given jurisdiction, it would logically follow that a federal court would have the constitutional power to determine the controversy by any reasonable method. The choice of federal common law rather than the law of a particular state is clearly not so unreasonable as to be unconstitutional.
    • Compare Arthur John Keeffe et al., Weary Erie, 34 CORNELL L.Q. 494, 497 (1949), who makes such an assertion in the twentieth century: Unquestionably Article III of the Constitution designates the federal courts as proper forums to litigate suits between "Citizens of different States." Given jurisdiction, it would logically follow that a federal court would have the constitutional power to determine the controversy by any reasonable method. The choice of "federal common law" rather than the law of a particular state is clearly not so unreasonable as to be unconstitutional.
  • 228
    • 85050842069 scopus 로고
    • The Origins of Diversity Jurisdiction, the Rise of Legal Positivism, and a Brave New World for Erie and Klaxon, 72
    • arguing that the drafting and ratification history [of the Constitution] supports the conclusion that diversity was intended at least in part as a protection against aberrational state laws, particularly those regarding commercial transactions, See
    • See Patrick J. Borchers, The Origins of Diversity Jurisdiction, the Rise of Legal Positivism, and a Brave New World for Erie and Klaxon, 72 TEX. L. REV. 79, 81 (1993) (arguing that "the drafting and ratification history [of the Constitution] supports the conclusion that diversity was intended at least in part as a protection against aberrational state laws, particularly those regarding commercial transactions").
    • (1993) TEX. L. REV , vol.79 , pp. 81
    • Borchers, P.J.1
  • 229
    • 54849435949 scopus 로고    scopus 로고
    • The Rules of Decision Act was section 34 of the Judiciary Act of 1789, ch. 20, 1 Stat. 73, 92. It is now codified, and has been since 1948 (slightly amended, in 28 U.S.C. § 1652 2000, The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States in cases where they apply
    • The Rules of Decision Act was section 34 of the Judiciary Act of 1789, ch. 20, 1 Stat. 73, 92. It is now codified, and has been since 1948 (slightly amended), in 28 U.S.C. § 1652 (2000): "The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States in cases where they apply."
  • 230
    • 54849411769 scopus 로고    scopus 로고
    • 41 U.S. 1 (1842), overruled by, Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
    • 41 U.S. 1 (1842), overruled by, Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
  • 231
    • 54849418293 scopus 로고    scopus 로고
    • See, e.g, William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 HARV. L. REV. 1513, 1514 1984, Then-Professor Fletcher observed that in the mid-nineteenth century the general common law was a reasonable place to look for guidance on issues not resolved by local law: In such cases, depending on the nature of the dispute, a number of different kinds of law could provide the relevant rules of decision. The general common law was by far the most important of these nonlocal and nonfederal laws. That it was not explicitly referred to in section 34 does not prove that it was not expected to be applied. Rather, the fact that it was not mentioned probably suggests quite the opposite, that its applicability was so obvious as to go without saying. Id. at 1517
    • See, e.g., William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 HARV. L. REV. 1513, 1514 (1984). Then-Professor Fletcher observed that in the mid-nineteenth century the general common law was a reasonable place to look for guidance on issues not resolved by "local" law: In such cases, depending on the nature of the dispute, a number of different kinds of law could provide the relevant rules of decision. The general common law was by far the most important of these nonlocal and nonfederal laws. That it was not explicitly referred to in section 34 does not prove that it was not expected to be applied. Rather, the fact that it was not mentioned probably suggests quite the opposite - that its applicability was so obvious as to go without saying. Id. at 1517.
  • 232
    • 54849406882 scopus 로고    scopus 로고
    • See Erie, 304 U.S. at 77-78 (stating that the Court would not have overturned a doctrine so widely applied throughout nearly a century were it not for the unconstitutionality of the course pursued).
    • See Erie, 304 U.S. at 77-78 (stating that the Court would not have overturned "a doctrine so widely applied throughout nearly a century" were it not for "the unconstitutionality of the course pursued").
  • 233
    • 54549104752 scopus 로고    scopus 로고
    • In advocating such a view, Professor Issacharoff has said that Erie assumed a world in which controversies arose within a state and faithful application of a state's laws could reasonably settle the expectations of all concerned persons. But in a society in which people, goods, and services cross state lines with abandon, the premise of Erie seems a fleeting memory. Issacharoff, Settled Expectations, supra note 210, at 1871; see also Judith Resnik, Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: The Political Safeguards of Translocal Actions, 156 U. PA. L. REV. 1929, 1947 (2008) (asserting that Erie was wrongly decided).
    • In advocating such a view, Professor Issacharoff has said that Erie assumed a world in which controversies arose within a state and faithful application of a state's laws could reasonably settle the expectations of all concerned persons. But in a society in which people, goods, and services cross state lines with abandon, the premise of Erie seems a fleeting memory. Issacharoff, Settled Expectations, supra note 210, at 1871; see also Judith Resnik, Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: "The Political Safeguards" of Translocal Actions, 156 U. PA. L. REV. 1929, 1947 (2008) (asserting that Erie was wrongly decided).
  • 234
    • 57649157721 scopus 로고    scopus 로고
    • Cf. Richard Marcus, Essay, The Impact of Computers on the Legal Profession: Evolution or Revolution?, 102 NW. U. L. REV. (forthcoming 2008) (assessing the impact of computers on many aspects of lawyers' work, and questioning whether it constitutes an evolution or a revolution for the practice of law).
    • Cf. Richard Marcus, Essay, The Impact of Computers on the Legal Profession: Evolution or Revolution?, 102 NW. U. L. REV. (forthcoming 2008) (assessing the impact of computers on many aspects of lawyers' work, and questioning whether it constitutes an "evolution" or a "revolution" for the practice of law).
  • 235
    • 54849411984 scopus 로고    scopus 로고
    • See Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 14-15 (1985) (explaining that the limits imposed by federalism on the exercise of federal power were transformed, in an era of active legislation and executive branch activity, into a constraint only on the judiciary).
    • See Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 14-15 (1985) (explaining that the limits imposed by federalism on the exercise of federal power were transformed, in an era of active legislation and executive branch activity, into a constraint only on the judiciary).
  • 236
    • 54849438429 scopus 로고    scopus 로고
    • § 185a, 2000
    • 29 U.S.C. § 185(a) (2000).
    • 29 U.S.C
  • 237
    • 54849431046 scopus 로고    scopus 로고
    • Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 455 (1957).
    • Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 455 (1957).
  • 239
    • 54849429255 scopus 로고    scopus 로고
    • See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987) (explaining that the language of the jurisdictional subsection of ERISA's civil enforcement provisions closely parallels that of § 301 of the LMRA).
    • See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987) (explaining that "the language of the jurisdictional subsection of ERISA's civil enforcement provisions closely parallels that of § 301 of the LMRA").
  • 240
    • 54849427167 scopus 로고    scopus 로고
    • This proposition is found in H.R. REP. NO. 93-1280, at 5107 1974, Conf. Rep, which states, All such actions in Federal or State courts are to be regarded as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor-Management Relations Act of 1947. The U.S. district courts are to have jurisdiction of these actions without regard to the amount in controversy and without regard to the citizenship of the parties
    • This proposition is found in H.R. REP. NO. 93-1280, at 5107 (1974) (Conf. Rep.), which states, All such actions in Federal or State courts are to be regarded as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor-Management Relations Act of 1947. The U.S. district courts are to have jurisdiction of these actions without regard to the amount in controversy and without regard to the citizenship of the parties.
  • 241
    • 54849422493 scopus 로고    scopus 로고
    • See supra text accompanying note 55 (regarding citizenship of a labor union for diversity purposes). Of course, Congress could direct that unions should be treated somehow like corporations, but, even then, some suits to enforce collective bargaining agreements would probably not satisfy complete diversity. As a result, federal question jurisdiction seemingly was the only way to get all such cases into federal court.
    • See supra text accompanying note 55 (regarding citizenship of a labor union for diversity purposes). Of course, Congress could direct that unions should be treated somehow like corporations, but, even then, some suits to enforce collective bargaining agreements would probably not satisfy complete diversity. As a result, federal question jurisdiction seemingly was the only way to get all such cases into federal court.
  • 242
    • 54849420391 scopus 로고    scopus 로고
    • See, e.g., Burbank, supra note 8, at 1943 n.129 (citing CAFA's legislative history); Issacharoff & Sharkey, supra note 15, at 1419 (CAFA declared its intent to leave Erie untouched . . . .).
    • See, e.g., Burbank, supra note 8, at 1943 n.129 (citing CAFA's legislative history); Issacharoff & Sharkey, supra note 15, at 1419 ("CAFA declared its intent to leave Erie untouched . . . .").
  • 243
    • 84886336150 scopus 로고    scopus 로고
    • notes 87-114 and accompanying text
    • See supra notes 87-114 and accompanying text.
    • See supra
  • 244
    • 54849405423 scopus 로고    scopus 로고
    • Indeed, as noted below, infra note 251, Judge Weinstein has recommended that CAFA be amended to cover some individual actions.
    • Indeed, as noted below, infra note 251, Judge Weinstein has recommended that CAFA be amended to cover some individual actions.
  • 245
    • 54849422105 scopus 로고    scopus 로고
    • Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).
    • Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).
  • 246
    • 54849414304 scopus 로고    scopus 로고
    • For Professor Hart's views on the subject, see Henry M. Hart, Jr, The Relations Between State and Federal Law, 54 COLUM. L. REV. 489, 513-14 1954, T]he Court [in Klaxon] has paralyzed the capacities of the federal courts to further one of the central desiderata of a federal system. Uniformity of formal doctrine throughout the, states is occasionally desirable, and where that is so a uniform federal substantive law provides the best means of securing it. But uniformity of obligation as between particular individuals, regardless of the locus of litigation, is almost invariably desirable; and the essence of this can be achieved widiout enacting uniform substantive laws. The promotion of this kind of uniformity, so far as this can be done widiout sacrifice of greater values, is one of the functions of the principles of the conflict of laws
    • For Professor Hart's views on the subject, see Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 COLUM. L. REV. 489, 513-14 (1954): [T]he Court [in Klaxon] has paralyzed the capacities of the federal courts to further one of the central desiderata of a federal system. Uniformity of formal doctrine throughout the . . . states is occasionally desirable, and where that is so a uniform federal substantive law provides the best means of securing it. But uniformity of obligation as between particular individuals, regardless of the locus of litigation, is almost invariably desirable; and the essence of this can be achieved widiout enacting uniform substantive laws. The promotion of this kind of uniformity, so far as this can be done widiout sacrifice of greater values, is one of the functions of the principles of the conflict of laws.
  • 248
    • 54849438223 scopus 로고    scopus 로고
    • In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015 (7th Cir. 2002), cert. denied, 537 U.S. 1105 (2003).
    • In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015 (7th Cir. 2002), cert. denied, 537 U.S. 1105 (2003).
  • 249
    • 54849421014 scopus 로고    scopus 로고
    • 472 U.S. 797 1985
    • 472 U.S. 797 (1985).
  • 250
    • 54849413478 scopus 로고    scopus 로고
    • Patrick Woolley, Choice of Law and the Protection of Class Members in Class Suits Certified Under Federal Rule of Civil Procedure 23(b)(3), 2004 MICH. ST. L. REV. 799, 801-09.
    • Patrick Woolley, Choice of Law and the Protection of Class Members in Class Suits Certified Under Federal Rule of Civil Procedure 23(b)(3), 2004 MICH. ST. L. REV. 799, 801-09.
  • 251
    • 54849415113 scopus 로고    scopus 로고
    • notes 87-90 and accompanying text
    • Supra notes 87-90 and accompanying text.
    • Supra
  • 252
    • 54849405421 scopus 로고    scopus 로고
    • notes 91-108 and accompanying text
    • Supra notes 91-108 and accompanying text.
    • Supra
  • 253
    • 54849418068 scopus 로고    scopus 로고
    • See Allstate Ins. Co. v. Hague, 449 U.S. 302, 320 (1981) (upholding Minnesota's application of Minnesota law to the claim of a former Wisconsin resident who moved to Minnesota after the claim arose).
    • See Allstate Ins. Co. v. Hague, 449 U.S. 302, 320 (1981) (upholding Minnesota's application of Minnesota law to the claim of a former Wisconsin resident who moved to Minnesota after the claim arose).
  • 254
    • 54849432840 scopus 로고    scopus 로고
    • For an example of such an argument, see Larry Kramer, Choice of Law in Complex Litigation, 71 N.Y.U. L. REV. 547, 549 (1996): Because choice of law is part of the process of defining the parties' rights, it should not change simply because, as a matter of administrative convenience and efficiency, we have combined many claims in one proceeding; whatever choice-of-law rules we use to define substantive rights should be the same for ordinary and complex cases. Note that this view seems to depend in part on an aggregation view of class actions. To the extent that one takes an entity view of the class action, and perhaps also a representative view, see supra Part II, the individualized choice of law inquiry looks less essential.
    • For an example of such an argument, see Larry Kramer, Choice of Law in Complex Litigation, 71 N.Y.U. L. REV. 547, 549 (1996): Because choice of law is part of the process of defining the parties' rights, it should not change simply because, as a matter of administrative convenience and efficiency, we have combined many claims in one proceeding; whatever choice-of-law rules we use to define substantive rights should be the same for ordinary and complex cases. Note that this view seems to depend in part on an aggregation view of class actions. To the extent that one takes an entity view of the class action, and perhaps also a representative view, see supra Part II, the individualized choice of law inquiry looks less essential.
  • 255
    • 54549086625 scopus 로고    scopus 로고
    • Burbank, supra note 8, at 1946; see also Linda Silberman, The Role of Choice of Law in National Class Actions, 156 U. PA. L. REV. 2001, 2007 (2008) (recognizing that states may adopt choice of law methodology that would facilitate class certification in nationwide class actions, but agreeing with Professor Kramer, supra note 241, that states should not do so).
    • Burbank, supra note 8, at 1946; see also Linda Silberman, The Role of Choice of Law in National Class Actions, 156 U. PA. L. REV. 2001, 2007 (2008) (recognizing that states may adopt choice of law methodology that would facilitate class certification in nationwide class actions, but agreeing with Professor Kramer, supra note 241, that states should not do so).
  • 256
    • 54849405650 scopus 로고    scopus 로고
    • But see Richard A. Nagareda, Bootstrapping in Choice of Law After the Class Action Fairness Act, 74 UMKC L. REV. 661, 672-76 (2006) (finding that some states have embraced such approaches to choice of law in class actions).
    • But see Richard A. Nagareda, Bootstrapping in Choice of Law After the Class Action Fairness Act, 74 UMKC L. REV. 661, 672-76 (2006) (finding that some states have embraced such approaches to choice of law in class actions).
  • 257
    • 54849406880 scopus 로고    scopus 로고
    • Professor Burbank argues that [W]here state choice of law doctrine is materially influenced by state policy reflecting a bias in favor of aggregate litigation, CAFA's jurisdictional provisions - reflecting (most charitably) a policy to enable aggregation decisions unaffected by that bias - may plausibly be thought, in the words of the Rules of Decision Act, to require otherwise than that such state law applies. Burbank, supra note 8, at 1950-51; see also Nagareda, supra note 243, at 683-84 (arguing that federal courts' judicial methodology after CAFA should resist overreaching state choice of law doctrine in class actions).
    • Professor Burbank argues that [W]here state choice of law doctrine is materially influenced by state policy reflecting a bias in favor of aggregate litigation, CAFA's jurisdictional provisions - reflecting (most charitably) a policy to enable aggregation decisions unaffected by that bias - may plausibly be thought, in the words of the Rules of Decision Act, to require otherwise than that such state law applies. Burbank, supra note 8, at 1950-51; see also Nagareda, supra note 243, at 683-84 (arguing that federal courts' "judicial methodology" after CAFA should resist overreaching state choice of law doctrine in class actions).
  • 258
    • 54849435744 scopus 로고    scopus 로고
    • Supra notes 8-9.
    • Supra notes 8-9.
  • 259
    • 54849421015 scopus 로고    scopus 로고
    • See generally Peter H. Schuck, The Role of Judges in Settling Complex Cases: The Agent Orange Example, 53 U. CHI. L. REV. 337 (1986) (exploring difficulties that result when the same judge promotes a setdement in a class action and is then called upon to decide whether the settlement is fair).
    • See generally Peter H. Schuck, The Role of Judges in Settling Complex Cases: The Agent Orange Example, 53 U. CHI. L. REV. 337 (1986) (exploring difficulties that result when the same judge promotes a setdement in a class action and is then called upon to decide whether the settlement is fair).
  • 261
    • 54849433902 scopus 로고    scopus 로고
    • Issacharoff & Sharkey, supra note 15, at 1419-20
    • Issacharoff & Sharkey, supra note 15, at 1419-20.
  • 262
    • 84963456897 scopus 로고    scopus 로고
    • note 14 and accompanying text
    • See supra note 14 and accompanying text.
    • See supra
  • 263
    • 54849429448 scopus 로고    scopus 로고
    • In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 290 (3d Cir. 1998). This case is the only case cited in the Committee Notes to the 2003 amendments to Rule 23(e) on settlement approval. See also In re Diet Drugs Prods. Liab. Litig., 282 F.3d 220, 236 (3d Cir. 2002) (noting that [i]t is in the nature of complex litigation that the parties often seek complicated, comprehensive setdements to resolve as many claims as possible in one proceeding).
    • In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 290 (3d Cir. 1998). This case is the only case cited in the Committee Notes to the 2003 amendments to Rule 23(e) on settlement approval. See also In re Diet Drugs Prods. Liab. Litig., 282 F.3d 220, 236 (3d Cir. 2002) (noting that "[i]t is in the nature of complex litigation that the parties often seek complicated, comprehensive setdements to resolve as many claims as possible in one proceeding").
  • 264
    • 54849441538 scopus 로고    scopus 로고
    • Judge Weinstein made such a recommendation recently: It may be useful for Congress to consider expanding the Class Action Fairness Act from class actions to at least some national MDL, non-Rule 23, aggregate actions. As use of the class action device to aggregate claims has become more difficult, MDL consolidation has increased in importance as a means of achieving final, global resolution of mass national disputes. In re Zyprexa Prod. Liab. Litig., 238 F.R.D. 539, 542 (E.D.N.Y. 2006). For discussion of the role in such nationwide setdements played by multidistrict transfer, see Richard Marcus, Cure-All for an Era of Dispersed Litigation? Toward a Maximalist Use of the Multidistrict Litigation Panel's Transfer Power, 82 TUL. L. REV. (forthcoming 2008).
    • Judge Weinstein made such a recommendation recently: It may be useful for Congress to consider expanding the Class Action Fairness Act from class actions to at least some national MDL, non-Rule 23, aggregate actions. As use of the class action device to aggregate claims has become more difficult, MDL consolidation has increased in importance as a means of achieving final, global resolution of mass national disputes. In re Zyprexa Prod. Liab. Litig., 238 F.R.D. 539, 542 (E.D.N.Y. 2006). For discussion of the role in such nationwide setdements played by multidistrict transfer, see Richard Marcus, Cure-All for an Era of Dispersed Litigation? Toward a Maximalist Use of the Multidistrict Litigation Panel's Transfer Power, 82 TUL. L. REV. (forthcoming 2008).
  • 265
    • 54849407267 scopus 로고    scopus 로고
    • See Marcus, supra note 211, at 905-06 (discussing the validation that could come in some instances from allowing class members to opt out).
    • See Marcus, supra note 211, at 905-06 (discussing the validation that could come in some instances from allowing class members to opt out).
  • 267
    • 54849437614 scopus 로고    scopus 로고
    • Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).
    • Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).
  • 268
    • 54849437615 scopus 로고    scopus 로고
    • Id. at 621
    • Id. at 621.
  • 269
    • 54849412900 scopus 로고    scopus 로고
    • See id. at 622-23 (The benefits . . . from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration, but it is not pertinent to the predominance inquiry. (citations omitted)).
    • See id. at 622-23 ("The benefits . . . from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration, but it is not pertinent to the predominance inquiry." (citations omitted)).
  • 270
    • 54849422925 scopus 로고    scopus 로고
    • Id. at 622
    • Id. at 622.
  • 271
    • 54849421658 scopus 로고    scopus 로고
    • See id. at 634 (Breyer, J., concurring in part and dissenting in part) (stating that he does not understand how one could decide whether common questions 'predominate' in the abstract - without looking at what is likely to be at issue in the proceedings that will ensue, namely, the settlement).
    • See id. at 634 (Breyer, J., concurring in part and dissenting in part) (stating that he does not "understand how one could decide whether common questions 'predominate' in the abstract - without looking at what is likely to be at issue in the proceedings that will ensue, namely, the settlement").
  • 272
    • 54849418791 scopus 로고    scopus 로고
    • See id. at 610 n.14 (majority opinion) (noting that California plaintiffs in mesothelioma cases regularly recover more than twice the maximum amount obtainable under the settlement in individual suits).
    • See id. at 610 n.14 (majority opinion) (noting that California plaintiffs in mesothelioma cases regularly recover more than twice the maximum amount obtainable under the settlement in individual suits).
  • 273
    • 54849406673 scopus 로고    scopus 로고
    • See Kramer, supra note 241, at 584 (proposing that problems be solved through a state-by-state survey of state law and asserting that, because variation in the legal rules is not great, once the state-by-state survey is completed, judges will find a relatively small number of
    • See Kramer, supra note 241, at 584 (proposing that problems be solved through a state-by-state survey of state law and asserting that, "because variation in the legal rules is not great, once the state-by-state survey is completed, judges will find a relatively small number of conflicts and an equally small number of approaches to choice of law").
  • 274
    • 54849403206 scopus 로고    scopus 로고
    • In Amchem, for example, the Court stressed the divergent interests of those who have not yet manifested serious illnesses, by which it seemingly meant that they should be segregated into a different subclass from the class made up of those who were already ill. 521 U.S. at 602-04
    • In Amchem, for example, the Court stressed the divergent interests of those who have not yet manifested serious illnesses, by which it seemingly meant that they should be segregated into a different subclass from the class made up of those who were already ill. 521 U.S. at 602-04.
  • 275
    • 54849413268 scopus 로고    scopus 로고
    • See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 827-28 (1999) (presenting a proposal to settle claims under Rule 23(b) (1) on the ground that defendant lacks sufficient assets to pay all claims).
    • See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 827-28 (1999) (presenting a proposal to settle claims under Rule 23(b) (1) on the ground that defendant lacks sufficient assets to pay all claims).
  • 276
    • 54849426959 scopus 로고    scopus 로고
    • See Stephen B. Burbank, The Costs of Complexity, 85 MICH. L. REV. 1463, 1471-76 (1987) (developing the theme of procedure as an instrument of power).
    • See Stephen B. Burbank, The Costs of Complexity, 85 MICH. L. REV. 1463, 1471-76 (1987) (developing the theme of "procedure as an instrument of power").
  • 277
    • 54849421214 scopus 로고    scopus 로고
    • Supra Part IV.A.1.
    • Supra Part IV.A.1.
  • 278
    • 54849441738 scopus 로고    scopus 로고
    • Supra Part IV.A.2.
    • Supra Part IV.A.2.
  • 279
    • 54849421879 scopus 로고    scopus 로고
    • Supra Part IV.B.
    • Supra Part IV.B.
  • 280
    • 54849433243 scopus 로고    scopus 로고
    • notes 87-108 and accompanying text
    • Supra notes 87-108 and accompanying text.
    • Supra
  • 281
    • 54849436740 scopus 로고    scopus 로고
    • Supra Part I
    • Supra Part I.
  • 282
    • 54849434937 scopus 로고    scopus 로고
    • Supra Part II
    • Supra Part II.
  • 283
    • 54849422104 scopus 로고    scopus 로고
    • Supra Part V
    • Supra Part V.
  • 284
    • 54849416011 scopus 로고    scopus 로고
    • note 14 and accompanying text
    • Supra note 14 and accompanying text.
    • Supra


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