by Brian Wolfman
Mark Moller, a law professor, adjunct scholar at the Cato Institute, and former editor-in-chief of Cato's Supreme Court Review, has just written an article entitled "A New Look at the Original Meaning of the Diversity Clause." Based on evidence of the original meaning of the Diversity Clause of Article III of the Constitution, Prof. Moller argues that the Clause does not allow Congress to confer original jurisdiction on federal courts under a minimum diversity theory based on the citizenship of persons who have not been brought within a court's “power to bind.” Prof. Moller explains that, for originalists, this discovery reveals a serious constitutional problem with the Class Action Fairness Act (CAFA). If one accepts the conventional understanding of preclusion in class actions, says Prof. Moller, absent class members are not within the court’s power to bind prior to completion of the certification process. That means, according to Prof. Moller, that CAFA’s extension of diversity jurisdiction over uncertified classes in which the named plaintiffs and defendants are nondiverse, based on the citizenship of absent class members, exceeds the limited jurisdiction conferred on federal courts by Article III. If Prof. Moller is correct, Article III negates Congress's ability to bring certain interstate class actions into federal court, including some within CAFA's intended scope.