CAFA Judicata: A Tale of Waste and Politics

36 Pages Posted: 20 Sep 2007 Last revised: 27 Mar 2008

See all articles by Kevin M. Clermont

Kevin M. Clermont

Cornell Law School

Theodore Eisenberg

Cornell University, Law School (Deceased)

Date Written: December 15, 2007


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.

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: or

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 (Deceased) ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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