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Keywords

class actions; representative litigation; state-border argument

Abstract

In recent years, some judges have begun doubting—and at times denying— their jurisdiction in class actions whose membership crosses state lines. This doubt has followed from the U.S. Supreme Court’s significant tightening of personal jurisdiction doctrine, which has led many to argue that courts no longer have jurisdiction over the claims of unnamed class members unless those claims have some independent relationship with the forum state. Such an argument raises foundational questions about due process and federalism, and has significant implications for the size, location, and feasibility of many class actions. This Article argues that what it terms the “state-border argument” should be rejected. Proponents of the argument have cast it as a natural implication of defendants’ due process rights, ignoring the underlying question about what scope those rights have to begin with. Due process rights are often understood to have different contours in the context of representative litigation, such as class actions. And representative litigation has historically been a tool for resolving disputes even when doing so requires expansive understandings of courts’ territorial authority. Meanwhile, the underlying concerns of personal jurisdiction doctrine either do not clearly support the state-border argument or actively militate against it. As a result, defendants’ due process rights do not require courts to apply the same personal jurisdiction tests to unnamed, out-of-state class members as those that are applied to named plaintiffs, and class actions should be permitted to proceed as they have for decades.

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