The Class Action Fairness Act: History, Uses, and Differences from Traditional Diversity Jurisdiction

In 2005, Congress passed the Class Action Fairness Act (“CAFA”) in order to grant class action litigants in diversity cases easier access to the federal courts. The re-formulated sections under 28 U.S.C. § 1332 created a lower threshold to gain access into the federal courts for both the plaintiff class members, and the perspective defendants wishing to remove to federal court. Congress passed these new provisions in order to “restore the intent of the framers of the United States Constitution by providing for Federal court consideration of interstate cases of national importance under diversity jurisdiction.” In its deliberations over the bill, Congress specifically found that certain litigants used the previous jurisdictional regime to create many situations whereby certain cases with national importance did not qualify for federal jurisdiction based upon diversity. Additionally, Congress sought to address the age old concern of discrimination against out-of-state litigants.

Congress also mentions in its findings and purposes prelude to CAFA that over the previous decade (1995 – 2005), abusive practices of the class action device caused numerous harms, thus justifying this remake of the class action jurisdictional regime. But why in 2005? Perhaps because Congress wished to respond to the vast amount of litigation against insurers stemming from Hurricane Katrina, which made landfall in August of 2005. Perhaps because in 2005, Republicans held a majority in both the House and the Senate (and held the presidency), and as a general matter, the Republican Party, rightly or wrongly, is viewed as anti-plaintiff. In this view, Republicans wanted to allow insurance companies greater opportunities to remove to federal court (which is also seen, rightly or wrongly, as somewhat less pro-plaintiff than many state courts). Whatever the true reasoning, Congress did pass CAFA, and some of CAFA’s provisions are worth noting.

CAFA grants federal jurisdiction (through diversity) to class action cases where: (1) the amount in controversy, in the aggregate of all of the class members, exceeds $5,000,000 and (2) in a controversy in which ANY member of the class of plaintiffs is diverse from the defendant. CAFA then defines class members as those persons, named or unnamed, who fall within the definition of the proposed or certified class in a class action. Based on these threshold rules, a defendant could rather easily assert diversity from one of the unnamed or proposed class members. The removing party need not identify the diverse class member, but merely show by a preponderance of the evidence, using the face of the complaint or summary judgment type evidence, that it is reasonable to believe at least one class member maintains diversity from the defendant. Hardly a high hurdle to clear. However, several important subsections to CAFA help to qualify these basic underlying tenets, and may impose at least some further obstacles to navigate as a removing party.

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Is It Time to Expand the Size of Congress?

Seal of US House of RepresentativesOn August 8, 1911, President William Howard Taft signed a bill authorizing an increase in the size of the House of Representatives from 391 members to 433. A provision in the bill also provided that two additional members would be added in 1912, following the scheduled admission of New Mexico and Arizona as the 47th and 48th states, and thereby raising the size of the House to 435, which is still the size of the House.

This means that since the admission of Arizona as the 48th state on Valentine’s Day, 1912, the size of the House of Representatives has remained unchanged for the 101.5 years. (The admission of Alaska and Hawaii in 1959 increased the size of the United States Senate from 96 members to 100, but a decision was made at that time to keep the size of the House at 435.)

The 1910 Census reported the population of the United States as slightly more than 92 million people. In comparison, the figure for 2010 was slightly less than 309 million, an increase of more than 330%. This means that every Congressman today represents more than three times as many people as his or her counterpart of a century ago.

The original idea regarding representation was that congressional districts should be small enough that citizens would have confidence that their elected representative would be able to represent their immediate interests. However, the average congressional district of today has more than 700,000 constituents and is larger than 16 of the 46 states in 1910.

If we go back further into our constitutional past, the disparity is even greater. In the Congressional Resolution passed on September 25, 1789, endorsing a Bill of Rights for the Constitution and submitting the proposed amendments to the states, the original First Amendment required the creation of a minimum of one congressional district for every 50,000 people.

As it turned out, this was the only one of these “original” amendments that did not become part of the Constitution. Had the original first amendment been adopted, Congress today would be made up of approximately 6,180 members, which all but the most fervent admirers of the Founding Fathers and advocates of constitutional localism would likely agree is too large.

Under the relevant provisions of the Constitution (Article I, sec. 2, cl. 3, and Sec. 2 of the Fourteenth Amendment) the size of the House of Representatives is left entirely to the Congress to determine, with the restriction that unless the population of a state is under that number, every Congressional District must have a population of at least 30,000 citizens. This would currently rule out the possibility of a 10,300 seat House (or anything larger).

But to say that 6,000 (or 10,000) members is too many does not mean that 435 is not too few. Had the ratios embraced by the 1911 bill remained the norm, there would currently be 1,436 members in the House of Representatives. While most observers would react by saying that 1400 would also be too large, would that actually be the case? Or is that reaction just a predictable response to the unfamiliarity of the idea. (We are conditioned by experience to assume that 435 is the proper size of the House of Representatives. To remember a House that did not have 435 members, a person would have to be at least 110 years old, which is pretty much the equivalent of remembering the Chicago Cubs winning the World Series.)

It does seem possible that the House of Representatives in its current form is too small and that representatives are too far removed from their constituents, at least by traditional norms. Perhaps an influx of additional new members could help improve the image of Congress, which appears to be at an historic low. One thing is clearly true, dealing with a 6,000-member House of Representatives would change the way that lobbyists do business.

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Are There Three Factions on the United States Supreme Court?

SCtThe way that the media reports on the Supreme Court, one gets the impression that the Court is divided into two intractable four-justice blocs, with Justice Anthony Kennedy deciding most of the cases by swaying back and forth between the two blocs.

(Under this interpretation, the conservative block is made up of Chief Justice John Roberts, as well as Justices Alito, Scalia and Thomas, while the liberal bloc includes Justices Breyer, Ginsburg, Kagan, and Sotomayor.)

Using data compiled from the SCOTUS blog regarding the Court’s 5-4 decisions since the appointment of Chief Justice Roberts, the Court actually divides into three three-justice blocs:

An all-female, “liberal” bloc including Justices Ginsburg, Kagan, and Sotomayor, who agree with each other virtually all the time; an all-male, three judge “conservative” bloc made up of Justices Roberts, Alito, and Thomas, who agree with each other in the vast majority of cases, but without quite the same degree of uniformity as their liberal counterparts.  This leaves a three justice bloc in the middle, composed of Justices Breyer, Kennedy, and Scalia, who are less likely to agree with the members of the other two blocs.

In the first bloc, Justices Ginsburg and Kagan have never disagreed with each other in regard to the result in a case that was decided by a 5-4 margin.  Justice Sotomayor, in contrast, has agreed with both Ginsburg and Kagan a mere 95% of the time.

In the second block, Justices Roberts and Alito have reached the same result 95% of the time in 5-4 decisions.  Thomas and Alito have agreed 91% of the time, while the figure for Thomas and Roberts is 87%.

The justices in the middle group are, in many ways the most interesting.  They are grouped together not because they agree with each other (which they do not), but because their voting patterns often fail to align with either of the other two groups.  Justices Kennedy and Breyer have reached the same result in 43% of the cases, while Kennedy and Scalia have been together 52% of the time.  Perhaps the most remarkable statistic, however, is that Scalia and Breyer have voted with each other in only 4% of the court’s 5-4 decisions since 2006.

As the following table indicates, Justice Breyer votes much more frequently with the “liberal” first group, while both Kennedy and Scalia side with the “conservative” second group approximately two-thirds and three-fourths of the time, respectively.

Voting with Ginsburg Kagan Sotomayor Thomas Roberts Alito
BREYER 78% 78% 73% 26% 26% 23%
KENNEDY 30% 30% 36% 61% 65% 73%
SCALIA 26% 265 23% 74% 78% 73%

The pairings least likely to vote together in 5-4 cases are Alito-Ginsburg; Alito-Kagan; and Roberts-Sotomayor.  The two justices in those pairings have never voted with each other in a 5-4 decision.  Also normally disagreeing are Breyer-Scalia (4% agreement, discussed above); Alito-Sotomayor (5%); Thomas-Ginsburg (9%); Thomas-Kagan (9%); and Thomas-Sotomayor (14%).

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