Class Actions, Heightened Commonality, and Declining Access to Justice

50 Pages Posted: 20 Jul 2012 Last revised: 17 Mar 2013

Date Written: July 19, 2012


A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class." Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but it also is at odds with the historical understanding of commonality in both the class action and joinder contexts. The Court’s articulation of a heightened commonality standard can be explained by a combination of its negative view of the merits of the discrimination claims at issue in Dukes, the conflation of the predominance requirement with commonality, and the Court’s apparent penchant for favoring restrictive interpretations of procedural rules that otherwise promote access. Although an unfortunate consequence of the Dukes Court’s heightening of the commonality standard will be the enlivening of challenges to class certifications that otherwise would never have been imagined, this Article urges the Court to reject heightened commonality and read Rule 23 in a manner that remains true to the language and history of the common question requirement.

Keywords: Class actions, commonality, restrictive ethos, civil procedure, litigation, Wal-Mart, dukes, employment discrimination, group actions, access to justice, heightened standards

JEL Classification: K00, K10, K19, K39, K4, K40, K41, K42, K49

Suggested Citation

Spencer, A. Benjamin, Class Actions, Heightened Commonality, and Declining Access to Justice (July 19, 2012). Boston University Law Review, Vol. 93, Forthcoming, Washington & Lee Legal Studies Paper No. 2012-28, Available at SSRN: or

A. Benjamin Spencer (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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