Woolley, Patrick, Erie And Choice Of Law After The Class Action Fairness Act, 80 Tul. L. Rev. 1723 (2006).
While CAFA may not have Sue Ellen Ewing to offer, the law has had dynamic effects on class action practice, and this article out of the Tulane Law School’s summer symposium entitled Class Actions in the Gulf South provides more than a teaser of what to expect on the choice of law front. In this article, Professor Patrick Woolley of the University of Texas School of Law delves into CAFA’s potential affects on an already convoluted area of the law. Professor Woolley questions Congress’s reliance on CAFA’s subject matter provisions to influence choice of law analyses in multi-state class actions, instead suggesting Congress should have seized control of the complex issue by passing specific choice of law provisions under Article III and IV. The professor objects to Congress’s assumption that application of a single state’s law in a multi-state class action is necessarily unconstitutional, pointing out that such a presumption severely undercuts the traditional choice of law presumption in favor of forum law. Also addressed is the substitution of Federal Rule of Civil Procedure 23’s burden of proof for the choice of law burden. According to Professor Woolley, a federal court is bound to apply the choice of law rules of the state in which it sits, however many federal courts ignore the state’s choice of law provisions by placing the burden of proof on the class proponent due to Rule 23.
Bottom Line: Choice of law is complicated and often a guessing game. Throw in more uncertainty due to CAFA’s implicit application to the area, and you’ve got a mess. Saving this well written article may save a lot of time and frustration down the road.