Comment by Jeremy T. Grabill
Ongoing concern exists regarding the expenses, delays, and inconsistencies that arise in complex litigation in the bifurcated American judiciary. It is generally accepted that unified treatment of related claims would prevent duplicative parallel litigation, avoid inconsistent outcomes in similar cases, and work to equalize the bargaining power of plaintiffs. Over the last decade, however, choice-of-law complexities have frustrated class treatment of state-law claims in both federal and state courts. Specifically, when a class includes citizens of different states (multistate class action), a court must engage in a choice-of-law analysis to decide whether it can properly select one state's law to apply to all class claims or whether it must instead apply multiple states' laws.
This Comment will discuss the increasing unwillingness of courts to certify multistate classes when this choice-of-law analysis requires the application of multiple states' laws. Conventional wisdom is that the emergence of a choice-of-law roadblock to class certification is a negative development. Accordingly, most scholarship in this area tends to be “problem-solving,” and has produced numerous proposals that would allow for unified federal treatment of complex cases. Not only does the literature marginalize the costs of class treatment, but it also fails to recognize the benefits of parallel litigation, namely diversified decisionmaking and respect for state sovereignty.
This Comment begins in Part II with a brief introduction to choice-of-law analyses and identifies that subset of cases in which the complexity of applying multiple states' laws prevents multistate class actions from satisfying the statutory requirements of Rule 23. Part III examines recent cases refusing to certify multistate class actions on this ground and also discusses the exceptions to this trend. Part IV summarizes both the dominant criticisms of this hostility to certification and the unsuccessful calls for unified federal treatment. Finally, Part V discusses the alternative “parallel litigation” model espoused by the United States Court of Appeals for the Seventh Circuit in In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation (Bridgestone/Firestone I) and presents this model's normative justifications as well as ways in which the effectiveness of parallel litigation can be enhanced.
About the Author
Jeremy T. Grabill. J.D. candidate 2006, Tulane University School of Law; B.A. 2003, Cornell University.
Citation
80 Tul. L. Rev. 299 (2005)