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CAFA Judicata: A Tale of Waste and Politics


Kevin M. Clermont


Cornell Law School

Theodore Eisenberg


Cornell University - Law School

December 15, 2007

University of Pennsylvania Law Review, Vol. 156, No. 6, 2008
Cornell Legal Studies Research Paper No. 07-018

Abstract:     
The Class Action Fairness Act has taken on its real form through construction by the federal judges. That form emerges in this empirical study of judicial activity and receptivity in regard to the Act. Our data comprise the opinions under the Act published during the two and a half years following its enactment in 2005.

CAFA has produced a lot of litigation in its short life. The cases were varied, of course, but most typically the resulting published federal opinion involved a removed contract case, with the dispute turning on the statute's effective date or on federal jurisdiction. Even though the opinions shed some light on issues such as jurisdictional burden and standard of proof, most of the judicial activity was socially wasteful litigation. It emphasized transitional efforts to interpret sloppily drafted provisions.

More interesting, we saw wise but value-laden resistance by judges to CAFA, as they interpreted it in a way to dampen the early hopes of overly enthusiastic removers. Regression analysis confirms the suggestion that one can derive from percentages of cases decided in certain ways. With the exception of Republican male judges, the federal judiciary has not warmly embraced the statute.

Number of Pages in PDF File: 36

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Date posted: September 20, 2007 ; Last revised: March 27, 2008

Suggested Citation

Clermont, Kevin M. and Eisenberg, Theodore, CAFA Judicata: A Tale of Waste and Politics (December 15, 2007). University of Pennsylvania Law Review, Vol. 156, No. 6, 2008; Cornell Legal Studies Research Paper No. 07-018. Available at SSRN: http://ssrn.com/abstract=1014966 or http://dx.doi.org/10.2139/ssrn.1014966

Contact Information

Kevin M. Clermont (Contact Author)
Cornell Law School ( email )
Myron Taylor Hall
Ithaca, NY 14853
United States
607-255-5189 (Phone)
607-255-7193 (Fax)
Theodore Eisenberg
Cornell University - Law School ( email )
524 College Ave
Myron Taylor Hall
Ithaca, NY 14853
United States
607-255-6477 (Phone)
607-255-7193 (Fax)
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