I oppose the Class Action Fairness Act, S. 353, because I believe it is unfair to plaintiffs, harmful to the federal courts and an unwise, and possibly unconstitutional, intrusion on states’ rights.

This legislation would remove most class action lawsuits involving state law claims from state courts – the forum most familiar with the legal issues involved – to the federal courts, where the case will generally take much longer to be resolved because of the current backlog of federal cases and federal judicial nominations.

I do not see any need for this so-called “reform.” Instead, I fear that some proponents of this bill are relying on a few anecdotes to justify federalizing most class actions cases. I am not aware of any hard evidence backing up the need for throwing class actions based on state law into the already overburdened federal courts.

We should remember that our state-based tort system remains one of the greatest and most powerful vehicles for justice anywhere in the world. One reason for that is the availability of class action litigation to let ordinary people band together to take on powerful corporations or even their own government. Consumers, victims of defective products, asbestos survivors, temporary workers, smokers, and thousands of other ordinary people have all been able to rely on class action lawsuits under our state-based tort system to seek and receive justice.

I am old enough to remember the civil rights battles of the 1950s and 1960s and the impact of class actions to vindicate basic rights through our courts. The landmark Supreme Court decision in Brown v. Board of Education was the culmination of appeals from four class action cases, three from Federal court decisions in Kansas, South Carolina and Virginia and one from a decision by the Supreme Court of Delaware. Only the Supreme Court of Delaware, the state court, got the case right by deciding for the African American plaintiffs. The Supreme Court of Delaware, a state court, understood before any federal court that “separate but equal is inherently unequal.”

Today, we have seen a more recent example of class actions seeking justice – tobacco victims. The recent tobacco class action litigation has contributed to fundamentally change the very dynamics of tobacco and public health.

For the first time, that class action litigation uncovered and presented serious and credible evidence about the tobacco industry’s 45-year campaign of deception about the dangers of cigarettes. As a result, the class action settlements negotiated by the State attorneys general and the private bar have brought about profound changes in the tobacco industry. Indeed, the tobacco industry is now admitting on its Internet web sites that smoking causes cancer and is addictive. Before the litigation, the executives of these same companies denied under oath to Congress that smoking was addictive.

The very existence of the multi-state tobacco settlements is a credit to class actions under our state-based civil justice system. In fact, without the use of class actions, does anyone believe that the tobacco companies would have ever come to a negotiating table? Without the willingness of private attorneys acting on behalf of their clients, taking significant financial and professional risks, and pursuing these matters so diligently, the States would not have settlement payments for the next 25 years, which will be devoted to promoting the public health of their citizens. Thousands, if not millions, of lives will be saved because of future public health improvements made possible by the tobacco class action settlement.

Unfortunately, this bill tries to unfairly limit class actions in our state courts at the expense of ordinary people seeking justice. This bill contains one-sided provisions that lower legal hurdles for defendants and raise legal hurdles for victims and consumers. These short-sighted policies shield the few from accountability at the expense of the many.

We all know that without consolidating procedures like class actions, it might be impossible for plaintiffs to obtain effective legal representation. Defense lawyers tend to be paid by the hour. Plaintiff’s lawyers in this type of setting tend to work without pay for the possibility of obtaining a portion of the judgment obtained, a contingent fee. It may well prove uneconomical for counsel to take on governmental or corporate defendants if they must do so on a case-by-case, individual basis. For instance, class actions made it possible for individual tobacco victims to band together to take on the powerful tobacco conglomerates in ways that individual smokers could not afford.

It would be criminal to leave some people with valid claims against corporate interests with no effective way to seek relief. I am extremely hesitant to restrict these legal rights and remedies without substantial evidence that such restrictions are justified. And I see no evidence to justify this bill.

The proponents of this legislation appear to believe that judges in state courts are incompetent. Or why else do they want to throw class action claims involving state law issues before federal court judges, instead of state court judges.

Preferring federal court judges over state court judges seems rather silly when many judges sitting on the federal bench now once presided over state courts earlier in their legal careers. Indeed, of the 60 federal court judges confirmed so far in this Congress, 21 are former state court judges. That means 35% of the federal court judges confirmed in the last two years have served as state court judges. I don’t think Senate confirmation bestows some higher IQ on these judges than other state court judges.

Not only is the removal of state law cases to federal courts unnecessary but it is also harmful. In his 1999 Year-end Report on the Federal Judiciary, Chief Justice Rehnquist warned Congress against continuing the trend of “unnecessary federalization of traditional state court matters” because our federal judiciary is already overburdened. I agree with Chief Justice Rehnquist.

There are currently 64 judicial vacancies in our Federal courts, 20 of which are judicial emergencies. The Judicial Conference has requested 63 more judgeships across the nation to accommodate the growing caseload of our federal courts. In fact, the total number of cases in federal courts increased 13 percent from 57,852 cases in 1998 to 65,443 cases in 1999. And the current levels of criminal case and defendant filings are higher than in any year since 1933, the year the Prohibition Amendment was repealed.

Clearly, our federal courts have enough cases already. They do not need more cases that should be reviewed at the state level. Indeed, the Judicial Conference concluded that “when the additional, burdensome litigation resulting from [this legislation] is added to the already overcrowded dockets of federal courts across our country, substantial backlogs and attendant delays can be expected.”

I also suspect that the federal procedural changes to state law in this legislation may not pass constitutional muster when challenged. The bill does not create a federal cause of action for class action lawsuits. Instead, the bill forces federal rules on state-based claims and procedures. This will result in the dismissal of claims that might otherwise succeed under state law and usurps the ability of state legislatures to make and enforce the laws for their citizens.

The so-called Class Action Fairness Act is an arrogant dismissal of the basic constitutional principle of federalism. The Conference of Chief Justices for State Courts wrote to Congress that this legislation “would unilaterally transfer jurisdiction of a significant category of cases from state to federal courts. So drastic a distortion and disruption of traditional notions of judicial federalism is not justified, absent clear evidence of the inability of the state judicial systems to process and decide class actions cases in a fair and impartial manner.”

The Conference on Chief Justices for State Courts continued: “Our discussions on this issue within the Conference have failed to identify any systemic problems in state class action procedures. Rather, we have heard only anecdotes of isolated problems that are being addressed on an ongoing basis by state judicial and legislative bodies. We believe strongly that there is no rational basis for so drastic an invasion of state judicial prerogatives.”

In fact, state legislatures are reviewing class actions in their state courts and taking appropriate action if necessary. Currently, thirteen states, including Alabama, Iowa, Michigan, California, and New York, are considering legislative proposals regarding class actions. These states and many others continue to determine the proper procedures for their courts. That is why the National Conference of State Legislatures opposes S. 353. I ask unanimous consent that a letter dated June 21, 2000, from the National Conference of State Legislatures be included in the record.

We in Congress should not be tramping on the rights of the States to set the legal procedures for their courts. I reject this Washington-knows-best approach.