Lost in the Dismal Swamp: Interstate Class Actions, False Federalism, and the Dormant Commerce Clause
70 Pages Posted: 8 Jun 2013
Date Written: 2011
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: Suggested Citation