CAFA's Impact on Litigation as a Public Good

Abstract:     
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.

Keywords: CAFA, class action fairness act, choice-of-law, procedural justice, spillover, externality, transparency, deterrence, public litigation, private attorneys' general

Accepted Paper Series