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« "A Rising Tide Against Class-Action Suits" | Main | BREAKING NEWS: Supreme Court grants review in Duran v. U.S. Bank N.A. »

Monday, May 14, 2012


Elliot Silverman

Ever since Erie, we have had federal courts deciding issues of state law. The state courts are not required to follow those decisions unless they find them persuasive.

Kimberly A. Kralowec

The problem is it has been happening significantly more often since CAFA, and state court judges do follow these decisions. Because of CAFA, federal judges are seeing and ruling on certain types of state law questions that tend to arise in class actions (for example, interpretation of the UCL and Labor Code) much more frequently than they did pre-CAFA. Federal judges follow each other in later class actions, leading to a critical mass of decisions that some state judges then also choose to follow. More and more federal district court decisions are being cited in California Court of Appeal opinions (which happens partly because those decisions are readily available in databases like Westlaw and partly because the rules permit citation of unpublished federal decisions in California state courts). Even if these federal decisions are supposed to be merely "persuasive," it cannot be denied that they are having an impact on the development of California law -- one that we would not be seeing but for CAFA. It is certainly possible that some of CAFA's proponents intended and expected this to happen.

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