Prof. Hoffman Publishes Article on CAFA Commencement Issue

The U.C. Davis Law Review has just published an article by Prof. Lonny Hoffman entitled, The "Commencement" Problem: Lessons from a Statute's First Year, 40 U.C. Davis L. Rev. 469 (Dec. 2006). Here is the abstract:

Whenever new legislation is enacted, questions can arise over its applicability to pending and future cases. One of the most common formulations used by Congress is to provide for a statute's application to all cases "commenced" on or after the date of enactment. It routinely uses a commencement trigger both in substantive legislation as well as in positive procedural enactments. Statutory commencement battles have high stakes. Judicial infidelity to statutory text can truncate or expand ab initio the reach of regulatory measures. Surprisingly, however, courts and commentators previously have not given rigorous attention to the commencement problem. As a result of this lack of careful attention, most of the reported decisions either follow older, not particularly well-reasoned precedents or simply engage in dubious analysis. Even the most nimble of judicial craftsmen can stumble.

Using the cases dealing with the commencement problem under the newly enacted Class Action Fairness Act of 2005, I critique the reflexive--and quite common--practice among courts of relying on rules directed to purposes other than answering the statutory inquiry. Such misguided analysis confuses the court's responsibility. The focal question in interpreting statutory text governing its applicability is what Congress intended when it provided that the statute would apply only to cases "commenced" on or after the law's effective date. I propose three canons of construction for courts to rely upon in interpreting the meaning of "commenced" when used as a statutory application trigger. The suggestion is that a court that follows these three canons of construction is more likely to keep straight the proper statutory inquiry before it and, thus, more likely to attend to the policies underlying the statute it is applying.