Federal Jurisdiction and Due Process in the Era of the Nationwide Class Action

Abstract:     
The class action has come of age in America. With increasing regularity, class litigation plays a central role in discussions about theory, doctrine, and policy in the American civil justice system. The dynamics of the class action lie at the heart of current debates over the nature of the litigation process and the limits of adjudication in effectuating social policy. Choice of law analysis has enjoyed a renaissance as its significance to the question of class certification has become apparent. Class litigation now frequently drives debates over tort reform and the phenomenon of regulation through litigation. In these and many other respects, we have entered a new dispensation: the era of the nationwide class action. The passage of the Class Action Fairness Act of 2005 (CAFA) aptly serves to punctuate that arrival.

The class action's ascendance to center stage, however, has not always been accompanied by the development of a sophisticated doctrinal and analytical apparatus that is adequate for its needs. This is particularly the case in the two important areas that will be my primary focus in this Article: the analysis of the content and impact of federal jurisdictional policy when parallel class actions are filed in state and federal courts, and the due process standards that govern the various aspects of representative litigation. In the former case, much of the discussion among courts and commentators has been mired for too long in forms of analysis that are inapposite and inadequate. In the latter, the discussion has been riddled with outright mistakes and misunderstanding. The enactment of CAFA offers an important occasion for revisiting our treatment of these vital questions of federal jurisdictional policy and due process in representative litigation. This Article undertakes that task.

Keywords: class action, federal jurisdiction, due process, Class Action Fairness Act, collateral attack, antisuit, injunction, shutts, mullane

JEL Classifications: K4, K40, K41, K42, K49

Accepted Paper Series