A New Look at the Original Meaning of the Diversity Clause

84 Pages Posted: 24 Nov 2008 Last revised: 11 Mar 2010

Mark Moller

DePaul University - College of Law

Date Written: November 22, 2008

Abstract

Must a federal court obtain the power to bind a party before her citizenship becomes relevant to diversity jurisdiction under Article III? For a long time conventional wisdom has assumed the answer is "no": Article III allows Congress to authorize diversity jurisdiction based on the citizenship of persons beyond a court's power to bind at the time jurisdiction is tested. Congress, in turn, has acted on this assumption. Key provisions of the most ambitious, and controversial, expansion of diversity jurisdiction in the last decade, the 2005 Class Action Fairness Act (CAFA), hinge diversity jurisdiction on the citizenship of persons conventionally believed beyond a court's power to bind-i.e., proposed class members in an uncertified class.

Based on an examination of the original semantic meaning of the Diversity Clause, this article argues that the conventional wisdom is wrong: Article III limits diversity jurisdiction to suits in which citizens of different states are brought within a court's power to bind their interests. In the process, the article sheds new light on the original meaning of an Article III "controversy" -- in particular, on whom an Article III "controversy" subsists "between" -- and raises new doubts about CAFA's constitutionality.

Keywords: Article III, Federal Courts, Diversity Clause, Originalism, Class Actions, Class Action Fairness Act

JEL Classification: K4, K40, K41, K1, K10

Suggested Citation

Moller, Mark, A New Look at the Original Meaning of the Diversity Clause (November 22, 2008). William & Mary Law Review, Vol. 51, 2009. Available at SSRN: https://ssrn.com/abstract=1305708

Mark Moller (Contact Author)

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604
United States

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