Separation of Powers and the Class Action

I. Introduction II. The Need for a New Theory of Litigant Autonomy … A. Some Terminology ... B. The Litigant Autonomy Conundrum ... 1. The Anti-Balancing Puzzle ... 2. Solutions to the Puzzle? ... a. Litigant Autonomy as a Fundamental Right ... b. Litigant Autonomy as a “Substantive Right” ... c. The Problem with the “Substantive Right” Argument ... C. The Need for a New Theory III. A Separation of Powers (and Federalism) Theory of Litigant Autonomy ... A. Class Actions and the Federal-State Balance ... 1. Class Actions Expand What Gets on the Federal Judicial Agenda ... 2. Class Actions Expand the Scope of Federal (Judicial) Preemption ... B. A New Separation of Powers Argument for Construing Rule 23 Narrowly ... 1. Private Law Standing as a Component of the System of Concurrency … 2. Entrenchment of Private Law Standing Principles by the Separation of Powers ... C. Consistency of the Approach with the Application of Separation of Powers in Other Contexts ... 1. Antisuit Injunctions ... 2. Jurisdiction ... 3. Erie and Hanna ... 4. Implied Rights of Action ... 5. Congress’s Control of the Concurrency System … D. Miscellaneous Objections ... 1. “What about the Rules Enabling Act?” ... 2. “What about the Class Action Fairness Act?” ... 3. “There is no federal common law!” ... 4. “I don’t like the outcome.” IV. Conclusion