While class actions have been in decline in federal mass tort litigation since at least the 1990s, a quiet shift has been occurring in their landscape in state courts. Although most scholarly attention has been focused on federal courts and on the U.S. Supreme Court’s reworking of Federal Rule of Civil Procedure 23 in the aftermath of the Class Action Fairness Act, state supreme courts have been engaged in a little-noticed but tremendously important battle over the future of class certification.

Defendants in non-removable class actions in state courts have increasingly shifted their arguments against class certification from objections based on procedural rules to objections based on the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. These arguments have different variations and forms (sometimes about punitive damages within class actions, and sometimes about the kind of evidence or proof courts must consider). This Article brings these varied due process arguments together to reveal their interconnectedness. It argues that a fundamental shift is underway in how state courts are being asked to think about class certification, based on a major expansion of procedural due process doctrine.

This Article contributes a new perspective on the boundaries of procedural due process in class certification by contextualizing that doctrine with the state courts’ functional role as independent adjudicatory systems. It concludes that state courts’ procedural independence in devising their own class certification systems is best served by the pragmatic, flexible view of procedural due process that has prevailed since the middle of the twentieth century; however, that functional role is imperiled by efforts to nationalize class certification procedures by constitutionalizing them.


95 Neb. L. Rev. 1024 (2017)


Class Actions, Federalism, Due Process

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