Closing off "avenues of pursuit"

The class-action law that President Bush signed on Friday has been getting a lot of attention, as has the U.S. Chamber of Commerce's successful lobbying on behalf of it and other legislative changes. Two interesting aspects to the class-action story, which seeks to foreclose the state courts as a forum for pursuing multistate class-action law suits in which aggregate claims exceed $5 million:

• As historian James McPherson once observed, "states' rights" ideology as a rule has served as a means to achieving some more fundamental goal than as an end in itself. Here's a(nother) case in point, where one might have expected states' rights-friendly Republicans to oppose legislation that mandates removal to the federal courts. Instead, they have taken the lead in nationalizing the issue.
• It also serves as a reminder that exploiting or fiddling with the American political structure has been a potent weapon in political struggles since the adoption of the Constitution. Legal historian Harry Scheiber pointed out the "avenues of escape," inherent in the structure, that businesses used in the nineteenth century to escape regulation. The structure creates, in effect, multiple opportunities across branches, levels, and geographic units of government for "forum shopping" in search of favorable legal treatment. Branch-jumping,level-jumping, and jurisdiction-jumping (within branches or levels) are all possible avenues of escape or pursuit, depending on the circumstances. In this case, the U.S. Chamber of Commerce (formed at the instigation of the Department of Commerce and Labor in 1912, by the way) and its allies seem to have succeeded in closing off the "avenue of pursuit" offered by the state courts, which have generally been seen as friendlier forums than the federal courts.

David Rogers and Monica Langley, "Bush Set to Sign Landmark Bill on Class Actions," Wall Street Journal, 2/18/05, A: 1, 7; Stephen Labaton, "Quick Victories Encourage Business Lobby," New York Times, 2/18/05, C: 1,2; Gretchen Morgenson and Glen Justice, "Taking Care of Business His Way: Hardball Tactics at U.S. Chamber," New York Times, 2/20/05, sec. 3: 1, 7.