Lost in the Dismal Swamp: Interstate Class Actions, False Federalism, and the Dormant Commerce Clause

70 Pages Posted: 8 Jun 2013

See all articles by Chad DeVeaux

Chad DeVeaux

Bartko Zankel Bunzel & Miller

Date Written: 2011

Abstract

The dormant Commerce Clause is generally associated with prohibitions against economic balkanization. I argue that the Clause also serves an important ancillary function: It protects the polity of each state from regulatory intrusions by sister states. This sovereign-capacity function underlies the so-called per se rule of invalidity. When a state’s law “directly regulates” extraterritorial commerce, the Supreme Court has “generally struck down the statute without further inquiry.” Nonetheless, courts often certify multi-state class actions under a single state’s law. I argue that the Supreme Court’s holding in BMW v. Gore that state courts may not use punitive-damages awards to force parties to conform their extraterritorial conduct to the forum’s consumer-protection laws precludes certification of multi-state class actions under a single state’s law.

Keywords: conflict of laws, choice of laws, dormant Commerce Clause, false federalism, class actions, CAFA, Class Action Fairness Act

Suggested Citation

DeVeaux, Chad, Lost in the Dismal Swamp: Interstate Class Actions, False Federalism, and the Dormant Commerce Clause (2011). George Washington Law Review, Vol. 79, No. 4, 2011. Available at SSRN: https://ssrn.com/abstract=2276166

Chad DeVeaux (Contact Author)

Bartko Zankel Bunzel & Miller

1 Embarcadero Center Ste 800
San Francisco, CA 94111
United States

HOME PAGE: http://www.bzbm.com/attorney/chad-e-deveaux/

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