Why true conservatives aren't the enemies of plaintiffs: Musings on CAFA Jurisdiction

Yesterday, Brian Wolfman posted a piece to this blog about a recent article by law prof and Cato ally Mark Moeller on why CAFA may be an unconstitutional extension of federal court jurisdiction. I'll leave it to y'all to read this article, because I want to address what its substance says about true conservatives versus the pro-business judges we too often encounter.

One of the most frequent battles consumer lawyers have to fight is whether their client (whether individual or class representative) has standing to assert claims, particularly in federal court. Pro-business courts seize on this concept as a way of booting out the lawsuit at an early stage.

The result is very favorable to crooked defendants, and is at least conceptually justified as a conservative approach to jurisdiction, just so much and no more.

However, CAFA's pirating of state court jurisdiction turns this conservative approach on its head, so it's nice to see a Cato type actually applying conservative principles to the law, in a way that does not favor big bidness.

This is in stark contrast to the radical activist judges we see too often, who are intent on crossing branches of government to undo what a legislative body (whether Congress or a City Council) has done.

There's been ranting about activist judges on the left, but as far as I can see, all those folks did was apply the law to current reality. This conflicts perhaps with the Scalia approach to Constitutional interpretation--that the Constitutional Convention meant what it said and said what it meant and it's wrong to read the Constitution in a way that does not reflect the words and not the intentions of those good men--but it does not rewrite the law.

What we see now is courts (including but not limited to the Texas Supreme Court) that have never met a businessman they didn't like, and are willing to perform jurisprudential backflips in order to please.

The result is truly a radical revision to the separation of powers. It's not getting much attention, but that's probably because advocates (1) don't have nearly the resources of the Chamber of Commerce and (2) are restricted by principles and honesty, and thus have not been as effective in demonizing what is truly a radical and dangerous trend.

To bring this back to the CAFA article, what is refreshing is to see someone who follows a conservative line of thought to its logical end, rather than taking a detour (or laying down a new road) in order to arrive at the desired end.

For this reason, advocates can feel fine when they draw a conservative judge, if that judge is an honest conservative, who will apply the law to the facts, regardless the end result.

Comments

[D]

This article, and there are others out there by conservative, libertarian, and free market idealogues, including myself, who believe that the 7th, 9th, and 10th Amendments actually mean something. For all his outspoken posturing, Justice Scalia's opinions routinely extend big federal government approaches and quashe States' rights, from jurisdiction to commerce to drugs to tort law.

I'm thrilled some more of the right are getter louder about this and documenting how Big Business has hijacked our federalist ideals (including the complete hijacking of the Federalist Society as a Chamber of Commerce lackey).