Wednesday, April 27, 2011

The Onslaught on Class Actions Begins

In the first of four cases which will shape the future of complex litigation, the Supreme Court held today that the Federal Arbitration Act preempts California contract law and upheld an arbitration contract barring class actions.  You can find coverage at Scotusblog and on if you have access to it.

While this has no direct relevance that I can think of to mass torts (although it has relevance to mass consumer actions, in the sense that its going to kill them), it is tangentially related in the sense that preemption doctrine and mass tort issues have been intertwined for some time.  I recommend Catherine Sharkey's work on preemption.  You can find some of her articles on SSRN, such as Backdoor Federalization, written with Sam Issacharoff, also Products Liability Preemption: An Institutional Approach and Preemption by Preamble.

If you are interested in the future of small claims class actions, I highly recommend the work of Myriam Gilles, which has been quite precient on the subject.  See her pieces on SSRN: Opting Out of Liability: the Forthcoming Near Total Demise of the Modern Class Action (written in 2004 and now coming to pass) and the more recent Class Dimissed: Contemporary Judicial Hostility to Small-Claims Consumer Class Actions.


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