How Can States Protect their Policies in Federal Class Actions?

Lucas Watkins, Harvard University

Abstract

More than any other procedural device, class actions have substantive goals. By allowing negative-value suits and collective punishment for widespread wrongs, class actions allow plaintiffs and defendants to protect rights that would otherwise go unvindicated. States also use class actions to implement industrial and consumer protection policies. Despite their importance to state policy, however, many state class action rules do not survive the transition into the federal court system. Under the Erie doctrine, federal courts apply federal class action rules even when state rules are more permissive and even when the state rules are intended to serve important substantive policies. Federal courts could correct this imbalance by adopting a new conceptualization of the Erie doctrine that relies on a simple doctrinal argument to incorporate state standards for class certification into Federal Rule 23. Doctrinal arguments notwithstanding, federal courts are unlikely to begin using state law to certify state law-based class actions. But there is room elsewhere in federal procedure for states to influence class action policy, and a state that wanted to promote or restrict implementation of its substantive policies through class actions could easily do so.