The Curse of Bigness and the Optimal Size of Class Actions

Abstract

How big is too big when it comes to class actions? This short essay, written for the Vanderbilt Law Review En Banc roundtable on Dukes v. Wal-Mart Stores, Inc. examines that question. Size in itself should not be a barrier to certification, but courts may rightly be concerned with variation within the class. Variation causes manageability problems, but in some cases (like Dukes) variation can be managed within the class context by judicious use of statistical methods. I also demonstrate why the related argument that this class ought not be certified because it is too big and Wal-Mart will be forced to settle the case out of duress is misguided.

Keywords: Wal-Mart, complex litigation, class action, class certification, employment discrimination, Title VII, statistical adjudication, bellwether trials, aggregate proof

JEL Classification: K41