Tuesday, December 9, 2008

Resnik on CAFA

Judith Resnik recently posted her article, Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: 'The Political Safeguards' of Aggregate Translocal Actions, on SSRN. It recently appeared in the Pennsylvania Law Review.  Here's the abstract:

What does the Class Action Fairness Act of 2005 (CAFA) teach us about federalism? A first lesson is that, when confronted with state-based decision making of which they disapprove, national lawmakers federalize rights, as they have repeatedly done throughout United States history. In 2005, Congress turned to the federal courts because CAFA's proponents believed that state courts were too welcoming of collective adjudication. CAFA is part of a cohort of enactments and doctrinal developments of this era that preempt state decision making and push litigants toward noncollective and nonadjudicative remedies such as privately sponsored arbitration programs. CAFA's reliance on federal courts to deal with aggregate litigation parallels decisions made in the 1960s to revise the Federal Rules of Civil Procedure to facilitate the aggregation of parties and claims. The mechanism of federalization is the same, but the goals are not. In the 1960s, Rule 23 was redrafted to expand class action opportunities for claimants in the federal courts. By easing access, rulemakers wanted to maximize the enforcement of federal rights, which they perceived to be under-protected in state courts, especially when state actors were charged with discrimination. In 2005, the purpose was, once again, to offer an alternative to state courts, perceived by then to have over-protected rights for various kinds of plaintiffs. Thus, a second lesson to be drawn from the enactment of CAFA is how quickly substantive "national" goals can change aimed now at deploying federal courts to very different ends.

Turning the question around to ask what federalism teaches us about CAFA yields other insights. A review of the history of the interactions between state and federal governance results in a third lesson, that efforts to centralize authority in the federal government and to exclude the states are not likely to endure. In this federation, national rule pronouncement regularly relies on local implementation. Fourth, local decision making does not occur in isolation. Rather, state policies and laws are regularly shaped through the interaction of state officials crossing their own borders as well as those of the nation. The interactions across localities have increased as government officials work, translocally as well as transnationally, through national organizations of local officials such as the U.S. Conference of Mayors, the National Governors Association, and the National League of Cities. While CAFA may try to centralize decision making at the national level in an effort to assert the United States' sovereign interests, pressures from local and transnational levels function as "political safeguards" that limit concentrations of power through countervailing mechanisms that produce other policy judgments.

From the density and richness of such translocal initiatives comes a fifth lesson: CAFA's efforts to diminish the role of aggregate-rights claiming will not succeed. Joint endeavors by local officials and their national organizations are themselves a form of aggregation, prompted by the need for collective responses to problems that affect large numbers of persons. Like the invention of the class action rules in the 1960s, the development of translocal organizations is likewise innovative. These national networks of local actors function as "political safeguards" that check exclusive national authority, but they are not themselves intrinsically "safe." Rather, their power raises questions that are familiar in the class action and political science literatures about the adequacy of representation by spokespersons for the group, the commonality of interests among members, and the opportunities of members to participate so as to inform and to monitor their representatives. Further, some of these national networks raise new questions for social movement theory, which has been focused on networks of nongovernmental organizations (NGOs) rather than on these voluntary national, private entities gaining authority by virtue of their members holding local and state offices. Thus, I propose capturing their presence through the term "transnational organizations of government actors," or TOGAs, as I begin below to interrogate their contributions both to federalism and to aggregation.



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