Moller on CAFA and Diversity Jurisdiction

Mark Moller, of DePaul University College of Law, has posted "A New Look at the Original Meaning of the Diversity Clause" on SSRN. Here's the abstract:

The 2005 Class Action Fairness Act, which allows federal courts to exercise diversity jurisdiction if members of a proposed class and the defendant reside in different states, raises a jurisdictional puzzle.

The puzzle was first identified by Brian Wolfman, Public Citizen's litigation director, in congressional testimony on CAFA. "When a proposed class action is filed," he argued, "the class does not yet exist and a constitutional 'controversy' exists only between the named plaintiffs and the defendant. Because there is no controversy between the absent class members... and the defendant... it is difficult to imagine how diversity jurisdiction can be constitutionally maintained [based on class members' citizenship] prior to certification of the class."

CAFA, in other words, forces us to ask whom an Article III "controversy" is "between" for purposes of establishing diversity jurisdiction.

In this article, I solve this puzzle. An Article III "controversy" subsists only "between" those subject to the court's "power to bind." Diversity jurisdiction is therefore limited to suits in which persons brought within that power are citizens of different states. Put another way, the constitutional reach of diversity jurisdiction and the due process limits on federal preclusion are, contrary to received wisdom, linked. I end by exploring the implications of this discovery for the constitutionality of CAFA.

ECB