Hogs Get Slaughtered at the Supreme Court

38 Pages Posted: 10 Feb 2012 Last revised: 4 Jul 2012

Suzanna Sherry

Vanderbilt University - Law School

Date Written: February 9, 2012

Abstract

Class action plaintiffs lost two major five-to-four cases last Term, with potentially significant consequences for future class litigation: AT&T Mobility v. Concepcion and Wal-Mart v. Dukes. The tragedy is that the impact of each of these cases might have been avoided had the plaintiffs’ lawyers, the lower courts, and the dissenting Justices not overreached. In this Article, I argue that those on the losing side insisted on broad and untenable positions and thereby set themselves up for an equally broad defeat; they got greedy and suffered the inevitable consequences. Unfortunately, the consequences will redound to the detriment of many other potential litigants. And these two cases are not isolated tragedies; they provide a window into a larger problem of Rule 23. When plaintiffs’ lawyers chart a course for future litigants, they may be tempted to frame issues broadly for the “big win” – with disastrous consequences. I suggest that it is up to the courts, and especially to those judges most sympathetic to the interests of class-action plaintiffs, to avoid the costs of lawyers’ overreaching. That is exactly what the dissenting Justices (and the judges below) failed to do in these cases.

Keywords: arbitration, clas action, Wal-Mart, Concepcion, common question, unconscionability, Supreme Court

Suggested Citation

Sherry, Suzanna, Hogs Get Slaughtered at the Supreme Court (February 9, 2012). Supreme Court Review, 2011 ; Vanderbilt Public Law Research Paper No. 12-6. Available at SSRN: https://ssrn.com/abstract=2002009 or http://dx.doi.org/10.2139/ssrn.2002009

Suzanna Sherry (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-0993 (Phone)

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