Abstract

http://ssrn.com/abstract=2147955
 


 



The Way Forward after Wal-Mart


George A. Rutherglen


University of Virginia School of Law

September 1, 2012

Virginia Public Law and Legal Theory Research Paper No. 2012-56

Abstract:     
The Supreme Court's decision denying certification of a class action in Wal-Mart Stores, Inc. v. Dukes elicited a strong dissent from Justice Ginsburg, and widespread criticism in liberal circles, but in several important respects, the decision was unanimous. All the Justices agreed that a class action could not be certified under Federal Rule of Civil Procedure 23(b)(2), the rule which governs class actions in which injunctive relief is "appropriate respecting the class as a whole." The holding that divided the Justices concerned the failure of the plaintiffs’ case to meet the requirement of Rule 23(a)(2) that there were "questions of law or fact common to the class." Yet even on this issue there were points of apparent agreement, and one of them was the need to inquire into the merits to determine whether the prerequisites to certification were satisfied.

This article begins by situating this widely accepted observation in the context of perennial disputes over substance and procedure in class actions. It then turns to the question of where to put certification decisions in the structure of pretrial litigation: in pleading, discovery, or summary judgment. That inquiry, in turn, leads to the larger question of how to reform class action procedure. Looking to the merits provides a way to differentiate among class actions, both in fine-grained analysis of particular claims and in broad terms defined by different areas of law. The cases and commentary on class actions presume that class actions must be divided into conventional categories, such as mass torts, consumer class actions, civil rights claims, and securities class actions, but they provide little more than a pragmatic justification for this division. A look at the merits was tacitly accepted as the premise of most analyses of class actions before Wal-Mart. This article provides a theoretical justification for doing so -- at the level of legal doctrine, based on the relationship between the substance of a claim and the requirements of Rule 23, and at the level of optimal enforcement, by identifying cases in which the expense of aggregate litigation yields gains in the basic goals of compensation, deterrence, and efficient litigation.

Number of Pages in PDF File: 21

Keywords: Class actions, employment discrimination, notice, opt-out, commonality, merits, summary judgment

working papers series


Download This Paper

Date posted: September 18, 2012  

Suggested Citation

Rutherglen, George A., The Way Forward after Wal-Mart (September 1, 2012). Virginia Public Law and Legal Theory Research Paper No. 2012-56. Available at SSRN: http://ssrn.com/abstract=2147955 or http://dx.doi.org/10.2139/ssrn.2147955

Contact Information

George A. Rutherglen (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
434-924-7015 (Phone)
434-924-7536 (Fax)

Feedback to SSRN


Paper statistics
Abstract Views: 403
Downloads: 89
Download Rank: 163,641

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.297 seconds