Mark Moller of the Cato Institute posted this commentary today arguing that true originalists should not be so quick to extol the virtues of the Class Action Fairness Act of 2005 (CAFA), which is often hailed as a conservative victory in tort reform. Moller and various other conservative commentators argue that the Act, which expands the statutory grant of federal diversity jurisdiction of the federal courts over certain class actions, is unconstitutional. He concludes that “[t]ort reformers who are faithful to the original meaning of the Constitution must confront the uncomfortable fact that the Constitution takes key provisions of CAFA, the tort reform movement’s greatest legislative achievement, off the table.”
The argument mirrors one made by Florida personal injury lawyer David J. Sales, who, in an October article, remarked that CAFA is a “decidedly anti-federalist” measure that erodes States’ judicial powers in favor of greater federal jurisdiction. (See ClassActionBlawg Commentary here).
Could it be that the class action case of The American Trial Lawyers Association and The Federalist Society v. United States is just around the bend?