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For seventy-five years, 'Klaxon v. Stentor Electric Manufacturing' has provided a one-line answer to choice-of-law questions in federal diversity cases: 'Erie Railroad v. Tompkins' requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that 'Erie' produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But 'Klaxon' cannot bear the weight with which it has been loaded.

'A district court has broad discretion in deciding whether a suit may be maintained as a class action'. Variations on this phrase populate the class action jurisprudence of the federal courts. The sentiment reflects the equity roots of the representative class proceeding-a history that has been thoroughly investigated by leading scholars in the field of civil procedure, structured the work of the committee that drafted modern Rule 23, and has repeatedly been embraced by the Supreme Court as a necessary starting point when interpreting and applying the Rule in modern practice. The power of the federal courts to exercise discretion when deciding whether to permit a suit to proceed as a class action has long been treated as an elemental component of a representative proceeding. It is therefore cause for surprise that there is no broad consensus regarding the nature and definition of this judicial discretion in the certification process. The federal courts have not coalesced around a clear or thorough exposition of the question, and the scholarly literature has not provided a sustained analytical treatment.

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of a tolling rule. The same need can arise for those who wish to opt out of a certified class action. American Pipe and its progeny provide such a tolling rule in some circumstances, but many unanswered questions remain about when the doctrine is available. In June 2017, the Court decided CalPERS v. ANZ Securities, holding that American Pipe tolling was foreclosed to a class member who opted out of a certified class in an action brought to enforce a federal statute (the Securities Act of 1933) that contained what the Court labeled a \"statute of repose.\" In June 2018, the Court decided Resh v. China Agritech, which held that American Pipe tolling is not available when absent members of a putative class file another class action following the denial of certification in the first action rather than pursuing their claims individually in subsequent proceedings. In this Article we develop a comprehensive theoretical and doctrinal framework for the American Pipe doctrine. Building on earlier work, we demonstrate that American Pipe tolling is a federal common-law rule that aims to carry into effect the provisions and policies of Federal Rule of Civil Procedure 23, the federal class action device. Contrary to the Court's assertion in CalPERS, American Pipe is not an “equitable tolling doctrine.” Neither is it the product of a direct mandate in Rule 23, which is the source of authority, not the source of the rule. Having clarified the status of American Pipe tolling as federal common law, we explain the basis on which the doctrine operates across jurisdictions, binding subsequent actions in both federal and state court. We argue that the doctrine applies whether the initial action in federal court was based on a federal or state cause of action—a question that has produced disagreement among the lower federal courts. And we situate American Pipe within the framework of the Court's Erie jurisprudence, explaining how the doctrine should operate when the putative class action was in federal court based on diversity jurisdiction and the courts of the state in which it was filed would apply a different rule. Finally, we discuss how CalPERS should have been decided if the Court had recognized the true nature of the American Pipe rule and if it had engaged the legislative history of the Securities Act rather than relying on labels.

Few subjects in the field of Procedure are characterized by greater legal abstraction than the collection of doctrines that govern the relationship between the federal and state courts. The grand experiment by which the drafters of the Constitution “split the atom of sovereignty,” as Justice Kennedy memorably put it, has not always produced readily administrable doctrines for the actual business of running parallel and overlapping judicial systems. The Court’s efforts to harmonize the operation of those systems through the Erie doctrine and its interpretations of the Rules Enabling Act—the statute that both authorizes and limits the Federal Rules of Civil Procedure—have been most successful when undertaken with an informed awareness of social dynamics and consequences. But successful harmonization of the judicial systems has been the exception, not the rule.

Despite the intense focus trained upon class litigation for the last twenty-five years, a central feature of the class proceeding has received no sustained attention: the preclusive effect that a class judgment should have upon the nonclass claims of absentees. The omission is a serious one. If claim and issue preclusion were to operate in their normal mode when a claim is certified for class treatment, the proceeding could compromise the high-value claims of individual absentees. Such a threat, in turn, can create ex ante conflicts of interest within a class that can prevent certification if left unresolved. Those few courts that have recognized the problem have thrown up their hands in helplessness, refusing to certify potentially beneficial classes for fear of the preclusive consequences. Worse, most courts have entirely failed to address the problem. It is not merely a lack of diligence that has produced this state of affairs. The reluctance of courts to address preclusion during certification has resulted from a deep confusion about the positive law foundations of a judgment's preclusive effects. This Article offers the first systematic examination of these issues. It explains the threat that claim and issue preclusion can pose to class members when those doctrines are applied, unaltered, to class litigation. It then offers a more careful account of the positive law foundations of a judgment's preclusive effect, marking out the path that will allow courts to reclaim their proper role in constraining the preclusive effects of the class proceedings that they shepherd to judgment.

Should the Boy Scouts of America and other noncommercial associations have a right to discriminate when selecting their members? Does the state have a legitimate interest in regulating the membership practices of private associations? These questions-- raised byBoy Scouts of America v. Dale, in which the Supreme Court ruled that the Scouts had a right to expel gay members-- are at the core of this provocative book, an in-depth exploration of the tension between freedom of association and antidiscrimination law. The book demonstrates that the \"right\" to discriminate has a long and unpleasant history. Andrew Koppelman and Tobias Wolff bring together legal history, constitutional theory, and political philosophy to analyze how the law ought to deal with discriminatory private organizations.

Gay and lesbian couples are now entering into legally authorized marriages for the first time in the nation's history. As has happened many times before when significant policy differences have emerged among the civil marriage laws of different jurisdictions, these newly married couples will inevitably move about the country, and state courts will have to decide whether, when, and for what purpose to give effect to their marriages when forum law would have prohibited the couples from marrying locally.

The class action's ascendance to center stage has not always been accompanied by the development of a sophisticated doctrinal and analytical apparatus that is adequate to its needs. Wolff analyzes the content and impact of federal jurisdictional policy when paralled class actions are filed in state and federal courts, and the due process standards that govern the various aspects of representative litigation.

In the field of civil procedure, it is sometimes a struggle to get practitioners, judges, and scholars to give history the attention it deserves. Torts, property, and the other common law subjects, constitutional law, international law--in these areas and many others, the evolution and growth of legal doctrines over time form an integral part of the common understanding of how modern problems should be understood and approached. The collection of doctrines and institutional practices that govern the field of civil procedure are no less shaped by their history. There are a few conspicuous exceptions, the most notable being the doctrine of personal jurisdiction, which is usually taught in law schools as an historical exercise in legal process and constitutional common law. But when it comes to the core doctrines of civil practice and litigation--preclusion, joinder, discovery, pleadings--discussions often proceed as though the world began in the closing decades of the twentieth century. Here, Wolff traces the history of civil practice and procedure.