JoEllen Lind


My discussion is made in the spirit of an essay and proceeds in four major parts. Part II, Diversity Jurisdiction and Democracy, describes the problematic connection between democratic values and diversity jurisdiction. It explains that when Congress deploys minimal diversity to make access to federal courts available in class action and mass tort cases there are potential risks to the role of states in promoting the democratic values of political participation, transparency, and accountability. Part III, Complex Litigation—The Rationale for Intrusion relates these issues to the specific reforms in complex litigation recently initiated by Congress. Part IV, Tilting the Playing Field, shows how, once state-based cases are redirected to the federal forum by this legislation, the procedural regime there can yield substantially different results than state proceedings. The particular examples analyzed are federal standards for class certification, federal standards for summary judgment, and the development of federal “summary judgment substitutes.” Together, they implicate a regime of “Procedural Swift,” in which state tort law is being reshaped through the national power to regulate procedure in diversity actions. Finally, Part V, Diversity and Democracy Revisited concludes with the question whether the rationale of a uniform procedure for the federal courts really supports the risks to democratic principles that it currently represents.