North Carolina Law Review

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The Supreme Court, CAFA, and Parens Patriae Actions: Will it be Principles or Biases

92 N.C. L. Rev. Addendum 1 (2013)


The Supreme Court's decision to grant certiorari in Mississippiex rel. Hood v. AU Optronics Corp. provides a unique opportunity to test whether the individual Justices will follow their previously articulated principles of statutory interpretation or instead will ignore these principles in order to reach a result reflecting their respective pro-business or pro-consumer biases. The issue before the Court in Hood is whether the defendant manufacturers can remove a parens patriae action alleging price-fixing brought by the State of Mississippi to federal court on diversity grounds under the provisions of the Class Action Fairness Act ("CAFA").


On one hand, Justices Scalia and Thomas are consistent proponents of a textualist or plain meaning approach to statutory interpretation. Usually their fellow conservatives on the Court, Chief Justice Roberts and Justices Alito and Kennedy, follow their lead on issues of statutory interpretation. At the same time, these five Justices all rank within the ten most pro-business Justices (among thirty-six ranked Justices) since 1946, with Justice Alito ranking as the most pro-business Justice and Chief Justice Roberts coming in second. On the other hand, Justice Breyer is the strongest proponent now on the Court of a competing approach to statutory interpretation known here as the "purposive" approach, a method of interpretation that focuses on the purpose the legislature sought to achieve when it passed the law. Justice Breyer, along with Justices Ginsburg and Sotomayor, are also the Justices most likely to rule against corporations and in favor of plaintiffs such as consumers or employees.


So here lies the rub. An honest and logical application of textualism in Hood by Justice Scalia and his conservative colleagues will lead to a pro-consumer outcome. On the other hand, a genuine application of the purposive approach by Justice Breyer will probably lead to a pro-business and anti-consumer outcome, although the outcome here is somewhat less predictable than it is for the conservatives. So for both the conservatives and the more progressive members of the Court, which shall it be? A principled application of their preferred approach to statutory interpretation? Or a result consistent with their ideological preferences?



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