on Jan 17, 2011 at 12:51 pm
Smith v. Bayer Corp., which is scheduled for oral argumentÂ tomorrow, reads like a particularly devious Federal Courts exam.Â At issue is whether a federal districtÂ court can enjoin a state court from certifying a class action based on the district courtâ€™s earlier refusal to certify an overlapping class bringing similar claims.Â The case raises a number of interesting questions about the scope of the Anti-Injunction Act, the contours of issue preclusion, and whether due process permits absent class members to be bound by a previous certification decision.
In their briefs, both parties cite and discuss leading law review articles addressing these issues.Â Legal scholars have written extensively on these questions, and thus it is a pleasure to see their work presented to the Court.Â And yet the case also shows just how manipulable academic literature is in the hands of litigators.Â Such writing is by its very nature abstract and theoretical, and thus lawyers on either side of the case can claim support from the same article.Â So, for example, Bayer cites Professor David Shapiroâ€™s article, Class Actions:Â The Class as Party and Client, for the proposition that Due Process does not require notice and opt-out rights prior to class-wide decision making. Â Smith responds that Professor Shapiro was taking a normative position on this issue, and that his article acknowledged that Supreme Court precedent states otherwise.Â Likewise, the parties dispute Diane Woodâ€™s take on that question.Â Bayer claims that Wood states in her article Adjudicatory Jurisdiction and Class Actions that notice and an opportunity to opt out are not constitutionally mandated, even in Rule 23(b)(3) class actions, as long as class members are adequately represented.Â Smith responds that Bayer â€œmisrepresentsâ€ Woodâ€™s position, which is limited to Rule 23(b)(1) and (b)(2) cases.
All of which goes to show that the clerks and the Justices would do better to simply read the articles themselves and come to their own conclusions.