December 4, 2008 4:54PM # Originalism vs. Class Action Reform By [Mark Moller](https://www.cato.org/people/mark-moller) --- SHARE David Boaz once [suggested](https://www.cato.org/pub_display.php?pub_id=3766) that the Class Action Fairness Act—an important statute that federalizes lots of abusive lawsuits traditionally confined to states—gives federal courts power they shouldn’t have. In this [article](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1305708), I marshal new evidence of the Constitution’s original meaning that supports David. In a nutshell: the evidence confirms an interpretation of the Constitution’s text advanced by (gasp!) Public Citizen’s litigation director Brian Wolfman. CAFA pins federal jurisdiction over state-filed class actions on the fact that many classes include members who are citizens of different states than the defendant. Congress, in turn, assumed these suits fall within federal courts’ jurisdiction over “controversies between citizens of different states.” However, in congressional testimony on CAFA, Wolfman argued that *proposed* members of a class are not parties to a constitutional “controversy.” For reasons too technical to go into here, if Wolfman’s right that would punch a big gaping hole in CAFA, allowing plaintiffs’ lawyers to easily evade federal jurisdiction in lots of cases. My evidence suggests Wolfman *is* correct—although Congress has the power to rewrite CAFA in a way that would make it constitutional. Unfortunately, as the article explains, a “fix” for CAFA is probably not politically feasible, at least in the forseeable future. For more on the argument, which involves some pretty technical points of federal jurisdiction and class action law, see the abstract, posted [here](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1305708), and a longer excerpt from the article posted by Professor Larry Solum on his Legal Theory Blog [here](http://lsolum.typepad.com/legaltheory/2008/12/moller-on-the-o.html). The bottom line: Tort 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. ##### Related Tags [General](https://www.cato.org/general), [Constitutional Law](https://www.cato.org/constitutional-law), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).