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"Class Action Lawmaking: An Administrative Law Model"

Mark Moller of Cato reports that his near-final paper of this title is up at SSRN. The abstract reads, in part:

This Article considers how courts should interpret federal statutes when the interpretive question affects the scope or availability of class certification. When faced with such a question, many courts are tempted to interpret the statute in a way that enables class certification, enhancing the chance that the parties will settle.

I argue that the debate over this practice can be conceptualized as a debate about delegation. Those who argue that courts act illegitimately when they �adapt� statutes to �fit� the class device assume Congress has delegated courts a narrow range of discretion to promote certification and settlement under federal statutes. By contrast, those who argue courts have great leeway to certify statutory claims, even at the price of �distorting� the statute, assume courts have been delegated a great degree of such discretion.

The Chevron doctrine of administrative law provides an unexpected solution to this debate, if we treat Chevron as a �starting-point� measure of Congress's intent to delegate authority to �adapt� federal statutes to new circumstances. This proposal is roughly similar to Nicholas Quinn Rosenkranz's suggestion that Chevron might be treated as a �constitutional starting-point rule� for defining permissible delegations of �dynamic interpretive power.�...



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.