28 Pages Posted: 22 Jun 2010 Last revised: 16 Jul 2010
Date Written: June 18, 2010
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.
JEL Classification: K00, K13, K41
Suggested Citation: 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: https://ssrn.com/abstract=1626795 or http://dx.doi.org/10.2139/ssrn.1626795