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48 Wm. & Mary L. Rev. 1247 (2006-2007)
Erie, the Class Action Fairness Act, and Some Federalism Implications of Diversity Jurisdiction

handle is hein.journals/wmlr48 and id is 1261 raw text is: ERIE, THE CLASS ACTION FAIRNESS ACT, AND SOME FEDERALISM IMPLICATIONS OF DIVERSITY JURISDICTION DAVID MARCUS* ABSTRACT The Class Action Fairness Act of 2005 (CAFA) expands diversity jurisdiction to allow most significant class actions based on state law to proceed in federal court. Hoping to limit the application of state law through class actions, CAFA's supporters believe that federal judges harbor a collective animosity toward the large, multistate class actions the statute targets. CAFA has no substantive compo- nent, and it does not tighten Rule 23's certification requirements. Nonetheless, if supporters are right about judicial preferences and their likely impact on certification decisions, CAFA will weaken the regulatory reach of state law. Arguments about diversity jurisdiction and judicial preferences made during CAFA debates bear a number of striking resemblances to arguments made for and against diversity jurisdiction during the decades leading up to Erie Railroad v. Tompkins. Many Progressive Era lawyers believed that, although no positive law instructed them to do so, federal judges shared a set of policy preferences that made them particularly receptive to corporate interests. As an expression of these preferences, the general common law attracted attention for its interference with the application of state law. By destroying the general common law, Erie limited the implications of judicial preferences for the federalism balance of power. * Associate Professor of Law, University of Arizona James E. Rogers College of Law. B.A., Harvard College, 1998; J.D., Yale Law School, 2002. This Article benefitted from feedback received after presentation at the University of Arizona, the University of Maryland, and Loyola Law School (Los Angeles). I owe particular thanks to the Hon. William Fletcher, Barbara Babcock, Robert Rabin, Norman Spaulding, Mark Kelman, Barbara Atwood, and, above all, Nina Rabin for comments on ideas and earlier drafts. 1247

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