Many class-action commentators (including this blog) spend much of their time focusing on class action in federal courts: what caselaw controls, what arguments tend to work.  They spend far less time on what happens to those defendants who–for one reason or another–find themselves in state court.  There are sound reasons for this.  The fifty states have very different class action regimes, ranging from tracking the Federal Rules to prohibiting them entirely.  And, thanks to the Class Action Fairness Act, state court cases are either truly local controversies, or are smaller-stake cases worth less than $5 million.

That doesn’t mean those cases should be ignored, though.  And thankfully, Professor Louisiana State Professor Margaret S. Thomas‘s newest article (to appear in the Nebraska Law Review), Constitutionalizing Class Certification, helps to fill that gap.

For defense counsel, the most valuable part of Professor Thomas’s argument is the observation that launches it: defendants facing down class actions in state court are prone to making arguments that invoke the Constitutional concept of procedural due process, in particular that defendants have a due process right to assert individualized affirmative defenses.  As a strategy, it makes sense.  Most state courts do not have mature, developed, class action doctrines.  Those that do (like California) are not necessarily as helpful to defendants.  And there is no guarantee that state courts will follow federal precedent, even when they have already stated that they treat it as persuasive.  Under those circumstances, making due process arguments provides additional persuasive force.

Professor Thomas reports this trend with alarm.  From her perspective, due process arguments threaten both federalism (those varied class action regimes) and the proliferation of the class action.  Much of her article is aimed at opposing any due process arguments defendants might make.  (And much of it recaps earlier work by DePaul’s Mark Moller and Baylor’s Jill Weiber Lens.)

But the arguments against granting defendants due process (which are of variable persuasiveness) are nowhere near as important as the original point.  When a class action defendant finds itself in state court, invoking the US Constitution may prove more persuasive than federal or state precedent.