Abstract

http://ssrn.com/abstract=1626795
 
 

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A Solution to the Choice-of-Law Problem of Differing State Laws in Class Actions: Average Law


David Rosenberg


Harvard Law School

Luke McCloud


affiliation not provided to SSRN

June 18, 2010

Harvard Public Law Working Paper No. 10-31
Harvard Law and Economics Discussion Paper No. 670

Abstract:     
In this essay, we show why and how to apply the average of differing state laws to overcome the choice-of-law impediment currently blocking certification of multi-state federal diversity class actions. Our main contribution is in demonstrating that the actual law governing a defendant’s activities involving interstate risk is in every functionally meaningful sense the same regardless of whether it is applied in disaggregated form state-by-state at great cost or in aggregated form on average at far less cost. We refute objections to using the average law approach, including that average law subjects defendants to a law of which they lacked notice at the time of the underlying conduct; fails to accurately reflect and enforce the substantive differences among the governing state laws; and undermines the sovereign lawmaking power of states to enact their distinctive policy preferences. To facilitate use of the average law approach, we also sketch the means for practically implementing the average law solution in different types of class action to determine a defendant’s aggregate liability and damages.

Number of Pages in PDF File: 28

JEL Classification: K00, K13, K41

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Date posted: June 22, 2010 ; Last revised: July 16, 2010

Suggested Citation

Rosenberg, David and McCloud, Luke, A Solution to the Choice-of-Law Problem of Differing State Laws in Class Actions: Average Law (June 18, 2010). Harvard Public Law Working Paper No. 10-31; Harvard Law and Economics Discussion Paper No. 670. Available at SSRN: http://ssrn.com/abstract=1626795 or http://dx.doi.org/10.2139/ssrn.1626795

Contact Information

Michael Rosenberg (Contact Author)
Harvard Law School ( email )
1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
617-496-4558 (Phone)
617-495-1110 (Fax)
Luke McCloud
affiliation not provided to SSRN ( email )
Feedback to SSRN


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