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Burdens of Jurisdictional Proof

44 Pages Posted: 13 Aug 2007 Last revised: 7 Oct 2016

Lonny Hoffman

University of Houston Law Center


Having passed the most significant legislative reform of complex litigation in American history, advocates of the Class Action Fairness Act have now set their sights on more technical battles of statutory interpretation and application. Their ambitions span a broad range: from trying to stretch the boundaries of CAFA's reach, in the first instance, to divining new principles in the conflict of laws which bear, ultimately, on the propriety of class certification. One of the most important questions with which courts are wrestling with regard to the Class Action Fairness Act concerns the burden of jurisdictional proof. In the broadest sense, the issue is who bears the burden of proving the existence (or nonexistence) of the federal district court's subject matter jurisdiction under the new statute. Traditionally, the party who desires to maintain the suit in federal court always has had the obligation of demonstrating the court's authority to hear the case. Reallocating some of that obligation so that the other side has to prove that federal jurisdiction is lacking constitutes a sea-change of enormous proportions. Yet, as to one aspect of the burden of proof under CAFA, this is exactly what the vast majority of courts - and every court of appeals to consider the question - has found Congress intended. It is already possible to see the impact that this reallocation is having on class action litigation. The empirical evidence, which Professor Hoffman collects and reports in Appendix A to this article, shows that reallocation of this burden of jurisdictional proof dramatically influences forum selection outcomes. In this paper Professor Hoffman demonstrates that the arguments credited by courts that have adjudged Congress intended to shift some of the burden of proof onto the party opposing federal jurisdiction rest on a number of highly suspect doctrinal and empirical assumptions. Against the prevailing view, Professor Hoffman argues that there are sound reasons to conclude that CAFA does not shift any of the burden of jurisdictional proof from the party who desires to maintain the suit in federal court.

Keywords: class action, CAFA, litigation, jurisdiction, federal courts, civil procedure

JEL Classification: K00, K10, K40, K41

Suggested Citation

Hoffman, Lonny mname, Burdens of Jurisdictional Proof. 59 Alabama Law Review 409 (2008) ; U of Houston Law Center No. 2016-A-21. Available at SSRN:

Lonny Hoffman (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States
713-743-5206 (Phone)

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