and became known for his liberal positions on many issues. A Progressive Era Democrat, he joined with Justice LOUIS D . BRANDEIS on many votes. He also wrote the Court’s opinion in ABRAMS V. UNITED STATES, 250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173 (1919), in which the Court upheld the conviction of several radicals accused of fomenting unrest and in the process helped define the Court’s position on free speech issues for decades to come. Clarke was born in Lisbon, Ohio, on September 18, 1857. His father, John Clarke, Sr., was an Irish Protestant who immigrated to Lisbon in 1830 and became a successful lawyer and judge. Clarke attended Western Reserve College in Hudson, Ohio, graduating Phi Beta Kappa in 1877 and receiving a master of arts degree in 1880. After college Clarke returned to Lisbon to study law under his father’s tutelage. He passed the bar with honors in 1878 and practiced briefly in his father’s firm. At age twenty-three he moved to the nearby city of Youngstown and opened his own corporate law firm. He soon gained a reputation as an excellent lawyer and developed an impressive list of clients. Clarke also became an active citizen of Youngstown. He bought an interest in the local Democratic newspaper, the Vindicator, and used it to promote progressive political reform in cluding national CIVIL SERVIC E reform and free public libraries. He was an active participant and speaker in a local literary society. Clarke did not marry. In 1897, after spending seventeen years in Youngstown, Clarke moved to Cleveland, where he joined the firm of Williamson and Cushing. His clients there included the Erie Railroad, the Nickel Plate Railroad, and the Pullman Com- pany, maker of railcars. In Cleveland, Clarke continued to advocate progressive political reform, sometimes conflicting with the interests of his clients. He became part of the circle of Tom L. Johnson, Cleveland’s Democratic mayor (from 1901 to 1909) and a leader in political reform. Among other things, Clarke pushed for limits on railroad fares and profits. He also sought to impose antitrust laws on the rail industry. In 1896 Clarke opposed the populist policies of fellow Democrat WILLIAM JENNINGS BRYAN , who ran for president that year. Unlike Bryan, Clarke supported the gold standard, a policy that fixed the value of the dollar in terms of a specific amount of gold. Clarke’s name came up at times for political office, including that of governor and of congressional representative but he declined such invitations. In 1903, however, he finally John Hessin Clarke. COLLECTION OF THE SUPREME COURT OF THE UNITED STATES. ▼▼ ▼▼ 18751875 John Hessin Clarke 1857–1945 18501850 19001900 19251925 19501950 ◆◆◆◆◆◆◆◆ ❖❖ 1945 Died, San Diego, Calif. 1857 Born, Lisbon, Ohio 1861–65 U.S. Civil War 1878 Passed Ohio bar 1880 Moved to Youngstown, started own law firm 1897 Moved to Cleveland and joined Williamson and Cushing 1914 Appointed to federal judgeship 1916 Nominated to U.S. Supreme Court 1914–18 World War I 1937 Publicly supported Roosevelt's plan to add justices to the Supreme Court 1939–45 World War II 1919 Wrote the Court's opinion in Abrams v. United States 1922 Left the Court to advocate for U.S. membership in the League of Nations ◆ 1945 United Nations founded GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 438 CLARKE, JOHN HESSIN ran for the U.S. Senate as a Democratic candidate. His platform advocated radical reform, including municipal ownership of street railways, equalization of taxes, direct election of senators, institution of workers’ compensation, and disclosure of campaign finances. Clarke lost to the more conservative INCUMBENT, Mark Hanna, a fellow native of Lisbon. He sought the Democratic nomination for the U.S. Senate again in 1914 but withdrew when a popular politician, Thomas Hogan, entered the race. Clarke later supported progressive reforms including women’s voting rights. At age 56 the silver-haired Clarke began a judicial career when President Wilson appointed him to become a federal judge in the Northern District of Ohio. Only two years later, on July 14, 1916, Wilson summoned him again, this time to be a nominee for the U.S. Supreme Court. Wilson hoped that Clarke would join with Justice Brandeis—who had been confirmed shortly before Clarke’s nomination—in moder- ating the conservative slant of the Court. Taking the place of Charles E. Hughes who had stepped down to run for president, Clarke met Wilson’s expectations. He took a liberal stance on most issues, becoming, for example, a strong advocate of enforcing antitrust laws against business monopolies. He also made many decisions that were pro-labor. Clarke had become wary of the potential of large CORPORATIONS to eliminate competition and infringe on the rights of workers. One of his most important contributions to the history of the Court was in the area of ANTITRUST LAW.He dissented in several decisions early in his term— including United States v. United States Steel Corp., 251 U .S. 417, 40 S. Ct. 293, 64 L. Ed. 34 3 (1920)— in which the Court found the defendants not guilty of violating antitrust laws. However, in United States v. Reading R.R., 253 U.S. 26, 40 S. Ct. 425, 64 L. Ed. 760 (1920), the Court majority joined him in his earlier dissenting position, dissolving a railroad HOLDING COMPANY because it was, according to Clarke’sopinion,“amenace to … interstate commerce within the meaning of the Anti-Trust Act.” Then, in United States v. Lehigh Valley R.R., 254 U.S. 255, 41 S. Ct. 104, 65 L. Ed. 253 (1920), Clarke garnered unanimous support for his opinion, in which the Court opined that a railroad had bought up its competition in order to gain a monopoly on rail service. Lehigh Valley R.R. serve d as a model for antitrust decisions during the 1930s. Clarke often sided with labor and he opposed efforts to use antitrust laws against unions. He upheld labor’s right to STRIKE in several cases and in Bunting v. Oregon, 243 U.S. 426, 37 S. Ct. 435, 61 L. Ed. 830 (1917), he voted to sustain Oregon’s MINIMUM WAGE law and its ten-hour workday limit. Clarke’s record on civil liberties was less uniformly liberal. Although he often voted with fellow justices Brandeis and Oliver Wendell Holmes Jr., he differed with them in Abrams. At issue was the First Amendment’s Free Speech Clause, which states, “Congress shall make no law … abridging the freedom of speech.” The case involved Russian-born anarchists and socialists who had been accused of distributing leaflets calling for WEAPONS workers to go on strike during WORLD WAR I. In the Court’s opinion, Clarke wrote, “the defendants plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ord- nance and munitions necessary and essential to the prosecution of the war.” Clarke said that the SEDITION Act of 1918, 40 Stat. 553, allowed for the restriction of speech that intended to disrupt the conduct of the war, even if that intention had not led to such disruption. This interpreta- tion of the FIRST AMENDMENT remained dominant for several decades. In his dissent, Holmes argued that Clarke and the majority had overblown the effect of “the surreptitious publishing of a silly leaflet by an unknown man.” Clarke again opted for a conservative interpretation of the First Amendment in U.S. ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 41 S. Ct. 352, 65 L. Ed. 704 (1921). In that decision, Clarke upheld a Milwaukee postmas- ter’s denial of mailing privileges to a socialist newspaper, claiming that a mailing permit was a privilege and not a right. Clarke resigned from the C ourt i n 1922 on his 65th birthday. He left in order to become an advocate for U.S. me mbership in t he LEAGUE OF NATIONS . Among the reasons for his resigna- tion, he told Brandeis, was his perception that many of the cases accepted by the Court were trivial in nature. Clarke was suffering from health problems, including loss of hearing and a heart condition, and he had been greatly affected by the death of two sisters. He also resented the hostility of the conservative justice JAMES C. MCREYNOLDS. President Wilson wrote to Clarke of the resignation, “I am only sorry, “IT IS NOT UNCOMMON FOR IGNORANT AND CORRUPT MEN TO FALSELY CHARGE OTHERS WITH DOING WHAT THEY IMAGINE THAT THEY THEMSELVES , IN THEIR NARROW MINDS AND EXPERIENCE , WOULD HAVE DONE UNDER THE CIRCUMSTANCES .” —JOHN CLARKE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CLARKE, JOHN HESSIN 439 deeply sorry. Like thousands of other liberals throughout the c ountry, I have b een counting on the influence of you and Justice Brandeis to restrain the C ourt in some measure from the extreme reactionary course which it seems inclined to follow.” During his time on the Court, Clarke wrote 129 opinions and 23 dissents. In the same year that he resigned Clarke became president of the League of Nations Non-Partisan Association of the United States, a position he held until 1928. After the carnage of World War I Clarke put great stock in the League of Nations’ efforts “to devise some rational substitute for irrational war a s a means of settling international disputes.” Clarke worked hard as an advocate for the League of Nations, traveling around the country, making speeches and campaigning for the cause—and spending a good deal of his own personal fortune in the process. He also became an active trustee of the World Peace Foundation in 1923. Plagued with respiratory problems in addi- tion to his heart condition, Clarke retired to San Diego in 1930. He remained disappointed by the United States’ persistent isolationism and its refusal to join the League of Nations. In the 1930s Clarke made known his support for Franklin D. Roosevelt’s NEW DEAL legislation. In 1937 he made a radio address speaking in favor of Roosevelt’s plan to add more justices to the Supreme Court. He was greatly saddened by the events of WORLD WAR II and told a friend that he “began to gravely doubt the existence of a moral government on this seemingly abandoned planet.” He died in 1945, shortly before the explosion of the atomic bomb on Hirosh ima and the formal creation of the UNITED NATIONS. FURTHER READINGS Cushman, Claire, ed. 1996. The Supreme Court Justices: Illustrated Biographies, 1789–1995. 2d ed. Washington, D.C.: Congressional Quarterly. Friedman, Leon, and Fred L. Israel, eds. 1995. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volumes I–V. New York: Chelsea House. “John Hessin Clarke (Sept. 18, 1857–March 22, 1945).” The Ohio Judicial Center, Grand Concourse. Columbus, OH: The Supreme Court of Ohio. CLASS ACTION A class action is a lawsuit that allows a large number of people with a common interest in a matter to sue or be sued as a group. The CLASS ACTION suit began in the equity courts of seventeenth-century England as a bill of peace. English courts would allow a bill of peace to be heard if the number of litigants was so large that joining their claims in a lawsuit was not possible or practical; the members of the group possessed a joint interest in the question to be adjudicated, and the parties named in the suit could adequately represent the interests of persons who were absent from the action but whose rights would be affected by the outcome. If a court allowed a bill of peace to proceed, the judgment that resulted would bind all members of the group. Justice JOSEPH STORY, who served on the U.S. Supreme Court from 1811 to 1845, advocated the development of the bill of peace in the United States. He wrote that in equity courts, “all persons materially interested, either as plaintiffs or defendants in the subject matter of a bill ought to be made parties to the suit, however numerous they may be,” so that the court could “make a complete decree between the parties [and] pre vent future LITIGATION by taking away the necessity of a multiplicity of suits” (West v. Randall, 29 F. Cas. 718, 2 [C.C.R.I. Mason] 181 [1820][No. 17, 424]). The bill of peace, and later the class action, provided a convenient and efficient vehicle for resolving legal disputes affecting a number of parties with similar claims. Common issues that could have similar outcomes did not have to be tried piecemeal in separate actions, thus saving the courts and the litigants time and money. Initially, a class action could be brought only in equity cases, disputes in which the parties did not necessarily seek monetary DAMAGES but instead might desire some other type of relief. The adoption of Rule 23 of the Federal Rules of CIVIL PROCEDURE in 1938 broadened the scope of the class action suit, providing that cases in law seek ing money damages as well as cases in equity could be brought as class actions. In 1966, the scope of the class action was again clarified and expanded when Rule 23 was amended to provide that unnamed parties to a class action were bound by the final judgment in the action so long as their interests were adequately represented. Rule 23 of the Federal Rules of Civil Procedure defines three kinds of class actions. The first type may be brought w here separate lawsuits might adversely affect other members GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 440 CLASS ACTION of the class or the DEFENDANT in either of two ways: if the piecemeal litigation resulting from separate suits might impose inconsistent standards of conduct on the defendant or if multiple suits might “impair or impede” the class members from protecting their various interests. In the second type of class action, a class seeks an injunction or some type of relief compelling the defendant either to cease a certain activity or to perform some other type of action. In the third category of class actio n lawsuit, questions of law or fact common to the entire class predominate over questions peculiar to each individual PLAINTIFF, and a class action suit is a more efficient means to resolve the controversy. Under the third type of class action, individual members of the class may “opt out” of the litigation if they do not WANT to be bound by the results of the suit. Courts have held that due process requires that absent class members be given adequate notice, adequate representation, and adequate opportunity to opt out, before they can be bound by a final judgment in the suit (Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S. Ct. 2965, 86 L. Ed. 2d 628 [1985]). Class action suits have led to social reform in the United States. They have helped to remedy DISCRIMINATION based on race and gender; been used to address inequities in education, housing, and voting rights laws; and helped to ensure due process. For example, in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court decision striking down segregated schools was brought as a class action lawsuit. The LANDMARK decision Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), in which the Supreme Court held that recipients of public assistance must be given notice and the opportunity for a hearing prior to termination of benefits, was also litigated as a class action suit. In addition, the class action suit has been used in several widely publicized mass tort cases. In these actions, many plaintiffs, often hundreds or even thousands, have alleged injuries suffered as the result of the actions of a single defendant, usually the manufacturer of some product believed to have caused damage. In the mid-1970s, thousands of women brought suit against the manufacturer of the Dalkon Shield, an intrauterine contraceptive device linked to numerous health problems, including sterility. A class action suit was also employed in lawsuits against the manufacturer of the herbi- cide Agent Orange, a highly toxic defoliant that the U.S. military used during the VIETNAM WAR and has been linked to cancer and birth defects in Vietnam era veterans and their families. In mid-1995 two major class action suits on behalf of millio ns of smokers were instituted against several TOBACCO companies. The plaintiffs hoped to prove that they had become addicted to nicotine and suffered illnesses as a result and that the defendant tobacco companies con- cealed their knowledge of the addictive nature of nicotine and the harmful effects of smoking. Some large companies, anticipating LIABILITY for potentially huge damages as a result of class action suits, file for BANKRUPTCY in order to protect their assets. The pharmaceutical com- pany A. H. Robins, the manufacturer of the Dalkon Shield, filed for bankruptcy in 1985 when it was faced with the prospect of paying millions of dollars as a result of class action suits filed against it . In 1995 Dow Corning Corpora- tion, the subject of hundreds of claims resulting from allegedly defective silicone gel breast implants, filed for Chapter 11 bankruptcy protection. Other companies, fearing the finan- cial consequences of possible class action suits arising from certain types of products, have ceased research and development in certain areas altogether. The Upjohn Company, for instance, ceased contraceptive research in 1986. The Supreme Court addressed concerns about the use of Rule 23 in mass tort actions in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997). This case involved persons who had been exposed to asbestos and who either had diseases attributed to this exposure or who had the potential of developing these diseases. The federal courts became worried that they would be inundated by thousands of individual cases. Therefore, in 1991 all asbestos cases that had been filed but not tried were consolidated and transferred to a single judge in Pennsylvania. During SETTLEMENT discussions, the defen- dants refused to negotiate unless the final agreement bound victims who would file claims in the future. The plaintiffs eventually agreed, and the par ties came to a settlement. They then went into court and obtained a certification of class action. However, objections were raised by many class members, and the Supreme Court was required to make a final determination. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CLASS ACTION 441 The Supreme Court ruled the class action was improper. The Court was troubled by attorneys of current victims, who stood to receive payment from the defendants, binding future victims to a settlement that greatly restricted their ability to receive compensation. Rule 23 requires class representatives to protect the interests of all class members, yet it seemed unlikely that future victims were fully protected. Another concern was that the proposed class did not have sufficient unity so that the future claimants could “fairly be bound by class representatives’ decisions.” The current plain- tiffs, who had asbestos injuries and wanted immediate compensation, had agreed to terms that future claimants might find unacceptable. These included the lack of inflation adjustment, the limitation on the number of payable claims each year, and the prohibitions against asking for damages based on emotional distress and loss of consortium. The Court found that the proposed class was not “sufficiently cohesive.” Although all members of the class shared experience of asbestos exposure, this did not meet the predominance requirement u nder Rule 23 (b)(3). In fact, there were many individual issues and many categories of persons who were exposed and injured or exposed but not yet injured. The supposed class was too “sprawling” to mee t the Rule 23 requirement. In 2002 the Supreme Court reviewed the rights of persons who seek to intervene in a class action settleme nt for the purpose of objecting to the settlement. In Devlin v. Scardelletti, 536 U.S. 1, 122 S. Ct. 2005, 153 L. Ed. 2d 27 (2002), the Court held that persons affected by a settlement Should Class Actions Be Restricted? C LASS ACTION lawsuits have become a controversial topic in the 1990s. Once seen as a way of empowering individuals with small claims to have their DAY IN COURT, class actions are viewed by many lawyers, legislators, and government officials as a vehicle for plaintiffs’ lawyers to make millions of dollars on issues of dubious merit. Other critics charge that class actions have been used by defendants in mass tort cases, such as asbestos LITIGATION, to frustrate the large and legitimate claims of indi- vidual victims. Defenders of class actions argue that this type of lawsuit has a legitimate social purpose. A lawyer who prosecutes a class action can be viewed as a “private attorney general” who aggressively enforces various regulatory laws or who alerts the public to FRAUD, health, and safety problems. In a time when govern- ment is seeking to reduce government regulation, class action lawsuits provide an opportunity for the private sector to take up the oversight function. Defenders note that the class action format has most often been used to aggregate small cla ims that wer e not worth litigating separately. A class action is an effective means for holding defendants accountable for widespread harm that would otherwise go unchecked. There is public value in allowing this type of class action to go forward, even if the amount payable to each member of the class is small. The deterrent effect of a class action can be substantial, forcing the DEFENDANT to change its product or procedures. Supporters of class actions contend that trivial cases are rare a nd that neither high SETTLEMENT rates nor small individual recoveries demonstrate frivolous litigation. Moreover, criticism of multimillion-dollar attorney fees ignores the risk that class action attorneys take in starting such lawsuits. Not every class action will be successful and the c osts of litigation c an be substantial. Without a financial incentive, attorneys will not take on and plaintiffs will not find REDRESS for certain types of injury. Defenders also point out that PERSONAL INJURY attorneys receive large portions of the awarded damages through CONTINGENT FEE agreements. Class action attorneys should not be treated differently. Defenders of large claim class actions believe that mass tort cases benefit from using a class action structure. When victims of mass torts seek substantial compensation for injuries caused by a defective product, such as asbestos, breast implants, and BIRTH CONTROL devices, it makes sense to aggregate the claims. It is more economical for attorneys and the courts to manage hundreds or even thousands of similar claims as a group rather than on a case-by-case basis. The courts would be tied up for years if each case had to be handled individually, and the duplication of EVIDENCE and expert WITNESSES would generate needless ex- pense. A class action, on the other hand, can resolve the central issues and develop rational compensation schedules for the victims. Settlement also becomes a more attractive option for defendants when the victims are members of a class. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 442 CLASS ACTION may appeal even if they are not a class representative or a court-approved intervener. The effect of the decision was anticipated to increase such appeals. Three years later Congress passed the Class Action Fairness Act (CAFA), Pub. L. No. 109-2, to address the problem of forum-shopping, which had been rankling courts almost since the inception of the class-action lawsuit. Prior class- action legislat ion made it difficult for plaintiffs to bring class actions in federal court because the law required strict DIVERSITY OF CITIZENSHIP, which meant that every class-action plaintiff and every class-action defendant had to reside in different states. If one plaintiff and one defendant were residents of the same state, diversity did not exist under the prior law, and the class action would have to be filed in state court, unless the case stemmed from violation of a federal law. Between 1985 and the early 2000s, certain state court developed a reputa- tion for providing huge damage awards in class actions. As a result, more lawsuits were filed in those jurisdictions than anywhere else, in hopes of landing the next big judgment. Defendants argued that those jurisdictions denied them a fair trial. CAFA helped resolve this problem by making it easier for class-action defendants who are initially sued in state court to remove that lawsuit to federal court, where justice is presumed to be more IMPARTIAL and evenhanded. CAFA gives federal courts ORIGINAL JURISDICTION over all class-action suits in which any single member of a class is a resident of a different state from that of any sing le defendant, instead of requiring that all plaintiffs and all defendants reside in different states, as under the prior law. Critics of class actions remain un- convinced about the social and legal value of group lawsuits. In small claims class actions, critics question the value of supporting litigation in which individual class members have very small stakes. For example, does it make sense to permit a lawyer to initiate a class action where a utility company overcharged two million customers two cents per month? Such filings demonstrate to the critics the lawyer-driven nature of most small claims class actions. The individual claimants, because they have so little at stake, do not exercise any control over the litigation or elect to opt out of the class and pursue individual claims. With the plaintiffs’ lawyer in total control, the dynamics of the lawsuit change. The lawyer has the largest economic stake in the outcome, leading to settlements that guarantee high attorney fees and mini- mal payouts to the class members. Critics also dispute the value of the PRIVATE ATTORNEY GENERAL role. Most class action attorneys, they contend, are seeking lucrative financial awards rather than social justice. Moreover, class actions may inter- fere with the regulatory and oversight functions of the appropriate government agency. The agency may conclude that the injuries attributed to the defendant are insignificant and do not WARRANT prosecu- tion. A class action substitutes the judg- ment of the private attorney for that of the public’s elected officials. As to the deterrence value of class actions, the critics maintain that state and federal law enforcement organiza- tions have the ability to investigate and punish cases involving widespread small- scale fraud and offer an alternative means of addressing wrongful conduct. Private enforcement through a class action reduces the accountability of the law enforcement effort and delegates to the plaintiffs’ attorney control over enforce- ment priorities. As to large claim class actions, critics believe that the victims may not be fairly served. They contend that large claim cases raise concerns about the capacity of the class action format to provide individualized justice, the ability of class attorneys to effectively represent the various needs of class members, and the impact on future class members who do not, at the time of litigation, have a ripe claim (their injury is not yet apparent). Critics argue that in these large claim cases, defendants have sought class action status as a way of limiting LIABILITY.In some cases, the parties propose a settle- ment before a complaint has ever been filed, suggesting the possibility of COLLU- SION between the attorneys for the two sides. Finally, defendants in mass tort class actions have an incentive to search for and negotiate with the plaintiffs’ attorney for the lowest settlement amount. Critics of class actions propose that legislation and court rules be changed to give more power to the courts to examine class action applications. Courts should carefully review the applications and deny class status to small claims cases with little social value in the adjudicating the claims. Another alternative is to sharply reduce attorney fees, which would reduce the incentive for frivolous actions. FURTHER READINGS Conte, Alba, and Herbert B. Newberg. 2002. Newberg on Class Actions. 4th ed. St. Paul, Minn.: Thomson/West. Coyle, Marcia. 2003. “Bill Targets Class Action Lawyer Fees: Sparked by Ire Over Tobac- co Money.” The National Law Journal 25 (May 19): 1. Feldman, Joel S., and Keith M. Fleischman. 2002. Non-Federal Question Class Actions 2002: Prosecution & Defense Strategies. New York: Practicing Law Institute. Schwartz, Robert Alexander. 2003. “Can Arbitration Do More for Consumers? The TILA Class Action Reconsidered.” New York Univ. Law Review 78 (May): 809–44. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CLASS ACTION 443 CAFA also modified the “amount in contro- versy” threshold for class-action lawsuits brought in federal court. Under prior law, every class-action plaintiff had to allege damag es of at least $75,000, whereas under the new law, only one plaintiff must allege damages of at least that amount, though the entire amount of all damages sought by class members must total at least $5 million in the aggregat e before a federal court may invoke jurisdiction on diversity grounds. At the same time, the new law requires federal courts to decline jurisdiction in cases where the lawsuit is truly local in nature. In determining whether a lawsuit is primarily a local one, courts must consider whether the following applies: (1) the alleged injuries or the alleged wrongful conduct occurred in the forum state; (2) at least two-thirds of the plaintiffs are from the forum state; (3) at least one defendant is from the forum state, and that defendant will be responsible for paying a large portion of any judgment; (4) the claims asserted involve matters of national or interstate interest; (5) the laws of the forum state will govern; (6) the action was pleaded in a manner seeking to avoid federal jurisdiction; and (7) similar class actions have been filed in the three years preceding the filing of the action. Application of the pre-emption doctrine can also curb state jurisdiction over class-action lawsuits. Under this doctrine, states are prohibited—or “pre-empted”—from exercising jurisdiction over matters that Congress has sought fully regulate on its own. Congress may preempt an area of law expressly or by implication, but in either case states may not place obstacles to the accomplishment and execution of purposes and objectives underlying the PREEMPTION. For example, plaintiffs may not bring a class action in state court alleging a violation of SECURITIES law, where the plaintiff alleges FRAUD in connection with the purchase, sale, or holding of a SECURITY because such wrongful conduct is already regulated at the federal level by the Securities Litigation Uniform Standards Act of 1998 (112 Stat. 3227); Merrill Lynch, Pierce, Fenner & Smith v. Dabit, 547 U.S. 71, 126 S. Ct. 1503, 164 L. Ed. 2d 179 (2006). FURTHER READINGS Hensler, Deborah, Nicholas M. Pace, Bonita Dombey- Moore, Beth Giddens, et al. 2000. Class Action Dilemmas: Pursuing Public Goals for Private Gain. Santa Monica, CA: Rand. Klonoff, Richard H. 2007. Class Actions and Other Multi- Party Litigation in a Nutshell. 3d ed. St. Paul, Minn.: West Group. Olson, Walter K. 2003. The Rule of Lawyers: How the New Litigation Elite Threatens America’s Rule of Law. New York: St. Martin’s Press. Viscusi, Kip W., ed. 2002. Regulation Through Litigation. Washington, D.C.: Brookings Institution. CROSS REFERENCES Civil Procedure; Preemption; Product Liability. CLAUSE A section, phrase, paragraph, or segment of a legal document, such as a contract, deed, will, or constitution, that relates to a particular point. A document is usually broken into several numbered components so that specific sections can be easily located. The SUPREMACY CLAUSE, for example, is part of Article IV of the U.S. Constitution. CLAUSE PARAMOUNT In admiralty law, a statement required by federal law to be included in any bill of lading, which evinces a contract for the transportation of goods by sea from U.S. ports in foreign trade. The statement provides that such bill is subject to the provisions of the Carriage of Goods by Sea Act (46 U.S.C.A. § 1300 et seq. [1936]), the federal legislation that governs the rights, obliga- tions, and liabilities arising out of the relation of issuer to holder of the ocean BILL OF LADING,in regard to the loss o r damage of goods. CROSS REFERENCE Shipping Law. v CLAY, HENRY Fiery southern lawmaker, Speaker of the House, and SECRETARY OF STATE HENRY CLAY played a pivotal role in preserving the Union during the early and middle years of the nineteenth century. Clay rose from modest origins to become a well-known politician. During his lifetime, the self-educated leader was known as the Great Compromiser and the Great Pacifier, epithets earned for his ability to find the necessary middle ground between the federal government and the states over issues such as SLAVERY, tariffs, and the admittance of new states to the Union. Argumentative, eloquent, and quick to propose a duel if insulted, he helped forge the MISSOURI COMPROMISE OF 1820 during a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 444 CLAUSE career that included five bids for the presidency. His contributions to federal policy ranged from trade and finance to foreign affairs in the administration of President JOHN QUINCY ADAMS. Born in Hanover County, Virginia, on April 12, 1777, Clay became a lawyer by the age of 20. He moved to Lexington, Kentucky, where he entered private practice while keeping an eye open for an entry to politics. Frontier life suited him. He especially liked gambling and drinking, pursuits that only exacerbated his hot temper. But he flourished as an attorney. His sharp oratory brought him prominence and while not yet thirty he represented former vice president AARON BURR in GRAND JURY proceedings involving Burr’s REAL ESTATE dealings. In 1799 Clay married the socially prom inent Lucretia Hart. Clay and his wife eventually had eleven children, and great tragedy. All six daughters and one son died at a young age. Clay rose quickly through Kentucky politics. He used his opposition to the repressive ALIEN AND SEDITION ACTS of 1798 as a springboard into the state legislature in 1803, where he ultimately served seven terms. Immensely popular with his fellow lawmakers, Clay was their choice to fill an expired term in the U.S. Senate in 1806—despite his not having reached the constitutionally mandated minimum age of 30. In 1810 he assumed a vacant seat in the Senate for a one-year period. Two ironies emerged from Clay’s early political career. Both would bear on his future course as a national leader. First, he opposed slavery and favored EMANCIPATION, an unusual and unpopular position in nineteenth-century southern politics. Clay saw slavery as evil. He was not, however, ultimately interested in blacks’ sharing in U.S. society: He would later become an originator of the American Coloni- zation Society, which sought to return former slaves to Africa, and at his death, his will would free the 50 slaves he had owned and provide for their transportation to Liberia. Second, Clay’s sensitivity to insult and his hair-trigger temper landed him in personal crises that would continue throughout his career. He fo ught his first duel with a fellow Kentucky lawmaker in 1809, and by the time he became secretary of state, he would be dueling with a U.S. senator. Brief service in Washington, D.C., whetted Clay’s appetite for a national political career. From 1811 to 1821, and 1823 to 1825, he was elected to the House of Representatives as a Henry Clay. LIBRARY OF CONGRESS Henry Clay 1777–1852 ❖❖ ◆◆◆◆◆◆ ◆ ◆ 1777 Born, Hanover County, Va. 1775–1783 American Revolution 1797 Received license to practice law in Virginia; moved to Kentucky 1803 Elected to Ky. general assembly 1806 Hired to defend Aaron Burr; elected to U.S. Senate 1807 Left U.S. Senate to become speaker of Ky. assembly 1811 Elected to represent Ky. in the U.S. House, served as speaker of the House 1820 Helped draft the Missouri Compromise 1825 Joined President John Q. Adams's cabinet as secretary of state 1831 Elected to U.S. Senate 1832–37 Led opposition to President Jackson's policies and appointments 1850 Formulated the Compromise of 1850 ◆ 1852 Died, Washington, D.C. 1861–65 U.S. Civil War ▼▼ ▼▼ 18751875 18501850 18251825 18001800 17751775 17501750 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CLAY, HENRY 445 Republican. He served as Speaker of the House for all but two of those years. Clay advocated a national economic policy that he called the American System, an ambitious attempt to link the East and West through transportation reforms, protectionism in the form of tariffs to boost U.S. industries, a plan for national defense, and a reorganization of the National Bank. Calling for war with Britain in 1812, he became nationally prominent as a leading member of the so-called War Hawks. In 1814 he acted as a representative to the Ghent Peace Commission, which ended the WAR OF 1812. Strong stands were his trademark: In 1819, opposing General Andrew Jackson’s invasion of Florida, he resigned as Speaker of the House. In 1820 Clay helped bring about the Missouri Compromise. This was a federal response to a bitter controversy over new slave states’ joining the Union, which came to a head when the slave-owning Missouri Territory applied for admission in 1818. Northerners objected to the entry of more slave states. Southerners protested when the House consid- ered a measure that would block further slavery in Missouri.Thomas Jefferson declared the Missouri issue—and in particular questions of constitutional authority—to be part of a Federalist conspiracy to destroy the Union. Clay drafted a compromise, persuading northern lawmakers to drop the slavery restriction, while southern lawmakers agreed to limit the geo- graphic boundaries of slavery. In 1821 he secured a second compromise in the form of a resolution that prohibi ted Missouri from dis- criminating against citizens from other states. Clay won wide praise for his work, although the compromise would be undone in time by the Supreme Court and the question of slavery would be ultimately decided by the Civil War. As a candidate of the WHIG PARTY, Clay made his first of five bids for the White House in 1824. He never succeeded, but the first failure bore fruit. In a runoff between Jackson and Adams that was decided in the House, Clay gave his support to Adams, who won. Clay’s reward was the job of secretary of state, one he had long coveted. For years, Democrats bitterly scorned the obvious deal, and the criticism wounded Clay. By 1826, he became the target of a particularly venomous attack by Senator John Randolph, an old opponent, who compared Clay to one of the scoundrels from Henry Fielding’s novel Tom Jones in a series of blasts at Clay’s competence and ethics as secretary. Clay promptly chal- lenged Randolph to a little-celebrated pistol duel—a series of bad aims and misfires in which neither man could hit anything and the two ended up shaking hands. In 1831 Clay returned to the Senate to represent Kentucky for an eleven-year stretch, to which he added another term from 1849 to 1852. Two of his achievements w ere significant. One was the Compromise TARIFF of 1833, which eased the situation caused by South Carolina’s nullification policy—a political doctrine under which a state held that it could reject any federal law that it deemed unconstitutional. Upset over federal tariffs that it found discriminatory, South Carolina had refused to allow tariffs to be collected in its state and had threatened to secede from the Union. This refusal brought the first test of a state’s decision to invoke nullification, and the reaction was swift: Presi- dent Jackson, declaring that the state had no right to nullify a federal law, threatened to send troops. Clay’s compromise called for a gradually declining tariff, which pleased South Carolina, averting further trouble. But, like the Missouri Compromise, it was a temporary balm to the aggravations between the North and the South. Clay’s greatest achievement occurred at the end of his long career. In 1850, as the question of slavery threatened to split the nation, he formulated a p lan that fairly decided the admission of California and the New Mexico and Utah territories as free or slave states. Again, a compromise of his averted civil war. Clay died two years later, on June 29, 1852, in Washington, D.C. The war he had helped forestall came less than a decade after his death. FURTHER READINGS Baxter, Maurice G. 2000. Henry Clay the Lawyer. Lexington: Univ. Press of Kentucky. Clement, Eaton. 1957. Henry Clay and the Art of American Politics Boston: Little, Brown. Remini, Robert V. 1993. Henry Clay: Statesman for the Union. New York: Norton. CLAYTON ACT A federal law enacted in 1914 as an amendment to the Sherman Anti-Trust Act (15 U.S.C.A. § 1 et seq. [1890]), prohibiting undue restriction of trade and commerce by designated methods. I WOULD RATHER BE RIGHT THAN PRESIDENT. —HENRY CLAY GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 446 CLAYTON ACT The CLAYTON ACT (15 U.S.C.A. § 12 et seq. [1914]) was originally enacted to exempt unions from the scope of antitrust laws by refusing to treat human labor as a COMMODITY or an article of commerce. In the early 2000s, it is used primarily to prohibit the suppression of free competition by making illegal four busi- ness practices: price DISCRIMINATION,whichis thesaleofthesameproducttocomparably situated buyers at different prices; tying and exclusive dealing contracts, which are the sale of products on condition that the buyer stop dealing with the seller’s competitors; corporate mergers, the acquisition of competing compa- nies by one company; and interlocking direc- torates, the members of which are common members on the boards of directors of compet- ing companies. These practices are illegal when they might substantially lessen competition or tend to create a monopoly in any line of commerce. By making the suppression of free competition unlawful the Clayton Act supplements the provisions of the Sherman Act, which outlaws monopolies. v CLAYTON, HENRY DELAMAR Henry DeLamar Clayton achieved prominence as a jurist and as the originator of the Clayton Antitrust Act (15 U.S.C.A. § 12 et seq. [1914]). Clayton was born February 10, 1857, in Barbour County, Alabama. He was a graduate of the University of Alabama, where he received a bachelor of arts degree in 1877 and a bachelor of laws degree in 1878. After establishing a law firm in Clayton, Alabama, in 1878, Clayton relocated his practice to Eufaula, Alabama, in 1880, and practiced there until 1914. From 1890 to 1891, Clayton participated in the Alabama General Assembly. He performed the duties of U.S. DISTRICT ATTORNEY for Alabama from 1893 to 1896 before entering the federal government system. Clayton became a representative in the U.S. House of Representatives in 1897 and served until 1914. From 1911 to 1914 he was the presiding officer of the JUDICIARY Committee. During his last year in the House, Clayton drafted the Clayton Antitrust Act, which simplified and added provisions to the SHERMAN ANTI -TRUST ACT of 1890 (15 U.S.C.A . § 1 et seq.), a law that was enacted to prevent the combina- tion of businesses for the purpose of unreason- ably restricting free competition. In 1914 Clayton began the judicial phase of his career and presided as U.S. district judge in Alabama for the next fifteen years. Clayton died December 21, 1929, in Montgomery, Alabama. CROSS REFERENCE Clayton Act. v CLAYTON, JOHN MIDDLETON John Middleton Clayton achieved prominence as a U.S. senator and as a drafter of the Clayton- Bulwer Treaty. Clayton was born July 24, 1796, in Dags- borough, Delaware. A graduate of Yale Univer- sity in 1815, Clayton was admitted to the Delaware bar in 1819. He began his political career in 1824 as a member of the Delaware ▼▼ ▼▼ 18751875 Henry DeLamar Clayton 1857–1929 19501950 19001900 19251925 19501950 1857 Born, Barbour County, Ala. 1861–65 U.S. Civil War 1878 Established law firm in Clayton, Ala. 1879 Standard Oil controlled over 90 percent of U.S. refining capacity 1890 Sherman Anti-Trust Act passed by Congress 1893 Appointed U.S. district attorney for Ala. 1896 Elected to U.S. House 1911 Became presiding officer of the House Judiciary Committee 1900 J. P. Morgan owned half of America's railroad track mileage 1914 Drafted the Clayton Antitrust Act 1914–18 World War I 1939–45 World War II 1929 Died, Montgomery, Ala. ◆ ◆ ◆◆ ◆ ◆ ◆ ❖ 1914–29 Served as U.S. district judge in Alabama ◆ ❖ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CLAYTON, JOHN MIDDLETON 447 . Formulated the Compromise of 1850 ◆ 18 52 Died, Washington, D.C. 1861–65 U.S. Civil War ▼▼ ▼▼ 18751875 18501850 1 825 1 825 18001800 17751775 17501750 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CLAY,. members of a class. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 4 42 CLASS ACTION may appeal even if they are not a class representative or a court-approved intervener. The effect of the decision. admittance of new states to the Union. Argumentative, eloquent, and quick to propose a duel if insulted, he helped forge the MISSOURI COMPROMISE OF 1 820 during a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD