The 'Commencement Problem': Lessons from a Statute's First Year

42 Pages Posted: 8 Feb 2006

See all articles by Lonny Hoffman

Lonny Hoffman

University of Houston Law Center


Passed in February 2005, the Class Action Fairness Act is the most comprehensive effort at regulating class action litigation the Congress has ever enacted. As we pass the first anniversary of the CAFA's enactment, there is a valuable opportunity to be taken in looking at the major questions with which the courts have been engaged in interpreting the new law. The primary problem has been deciding to what cases the new statute applies. Defendants, eager to gain the benefits of the new legislation, have attempted to extend the statute's reach to cases filed before the date it went into effect, February 18, 2005. While the precise commencement questions raised by the CAFA will only remain live issues for a short time, there is much in the CAFA case law to command our attention. The CAFA cases warrant continued and careful consideration because the issues with which the courts have dealt also arise regularly beyond the class action context, and will continue to do so. Whenever new legislation is enacted questions can arise over its applicability to pending cases. Surprisingly, courts and commentators previously have not given rigorous attention to the commencement problem; as a result, many of the reported decisions either reflexively follow older, not particularly well-reasoned precedents or simply reach dubious results.

In this essay, I suggest that in interpreting the meaning of commenced, when used as a statutory application trigger, it would be valuable for courts to follow three essential canons of construction. First, whenever new legislation uses the date of commencement as a relevant point in time for identifying those cases to which the new statute applies, a court should first discern whether the law specifically defines the term. Assuming state law governs the definition of when a state suit is commenced because the federal statute does not include a different method, the second step is to determine whether a state rule fixes the time at which an action is commenced and, if so, to figure out what is that relevant date. Finally, the third canon of construction is to distinguish between state rules that fix the date of commencement with those that set requirements for maintaining the action or that have some other, even more specific purpose in mind. When the text of a law does not instruct differently, reflexive consideration of rules directed to purposes other than fixing the date of commencement confuses the inquiry with which the court must be involved. The question - the only relevant question - in interpreting statutory text governing its applicability is what did the Congress mean when it provided that the statute would apply only to cases commenced on or after the law's effective date. A court that follows these three canons of construction is more likely to better keep straight the proper inquiry about which it should be engaged.

Keywords: statutory commencement, statutory interpretation, class action fairness act

JEL Classification: K10, K40, K41

Suggested Citation

Hoffman, Lonny, The 'Commencement Problem': Lessons from a Statute's First Year. UC Davis Law Review, 2006, U of Houston Law Center No. 2006-W-03, U of Texas Law, Public Law Research Paper No. 86, Available at SSRN:

Lonny Hoffman (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
4604 Calhoun Road
Houston, TX 77204-6060
United States
713-743-5206 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics