CAFA's Impact on Litigation as a Public Good
Elizabeth Chamblee Burch
University of Georgia Law School
Cardozo Law Review, Vol. 29, p. 2517, 2008
Class actions regulate when government fails. Perhaps this use as an ex post remedy when ex ante regulation founders explains the fervor and rhetoric surrounding Rule 23's political life. In truth, the class action does more than aggregate; it augments government policing and generates external societal benefits. These societal benefits - externalities - are the spillover effects from facilitating small claims litigation. In federalizing class actions through the Class Action Fairness Act (CAFA), Congress, in some ways, impeded class action practice, thereby negating its positive externalities and inhibiting backdoor regulation. This Article critically considers those effects on the common good. It also develops an implicit but overlooked theme within the CAFA debate - the notion that litigation itself is a public good.
Number of Pages in PDF File: 40
Keywords: CAFA, class action fairness act, choice-of-law, procedural justice, spillover, externality, transparency, deterrence, public litigation, private attorneys' general
Date posted: August 7, 2007 ; Last revised: December 4, 2008
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