In this Essay, Professor Burbank comments on the essays by Professors Nagareda and Issacharoff. Welcoming the opportunity to revisit the interplay between procedure and substantive law and the question of democratic accountability that Professor Nagareda’s essay presents, Professor Burbank concludes that the parts of that essay are greater than the whole. He finds that Professor Nagareda’s pursuit of unifying themes and a general normative theory leads to inconsistencies in classification between procedure and substance and to an impoverished vision of institutional legitimacy. Professor Burbank voices concern that this quest, which is also evident in the current draft of the American Law Institute’s Principles of the Law of Aggregate Litigation, denies the complex interaction of procedure and substantive law and takes an essentialist view, shaped by current federal arrangements, on normative questions, including questions of institutional legitimacy. Noting that both Professor Nagareda and Professor Issacharoff discuss the implications of the Class Action Fairness Act of 2005 (CAFA) for choice of law in nationwide class actions, but that their essays reach radically different conclusions, Professor Burbank finds neither persuasive on the critical question of legal authority. He argues that Professor Issacharoff attempts to beat Congress at the hypocrisy game, cherry picking congressional statements to justify a choice of law result precisely the opposite of that sought by the statute’s promoters. He also disagrees with Professor Nagareda’s claim that CAFA instantiates a broader principle of institutional legitimacy. Agreeing, however, with both authors that CAFA affords good reason to reconsider the Supreme Court’s Erie jurisprudence, in particular Klaxon Co. v. Stentor Electric Manufacturing Co., Professor Burbank offers an analytical path to the conclusion that under CAFA a federal court may not be required to follow state choice of law doctrine that “bootstraps” for the purpose of enabling aggregation.
Burbank, Stephen B., "Aggregation on the Couch: The Strategic Uses of Ambiguity and Hypocrisy" (2006). Faculty Scholarship at Penn Law. 952.
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