They Doth Protest Too Much: A Historical Demonstration that Wal-Mart's Critics Have it All Wrong

Abstract

Decided in the middle of 2011, Wal-Mart Stores, Inc. v. Dukes has inspired nearly uniform condemnation from scholars. The decision has been decried as the death knell of employment class actions, a retrogressive outcome that imperils civil rights. But whether the case was rightly decided depends on the rule’s text, purpose, and history rather than policy preferences. That is to say, courts should decide outcomes based on what the rules are rather than what they should be. This essay examines the 1966 amendments that gave birth to the modern class action.

By examining the events leading up to the rule’s amendment in 1966 and contemporary commentary, I will show that, as amended and modernized in 1966, Rule 23 was never meant to be a cure-all in situations where a number of prospective plaintiffs might identify the same defendant. Rather, it was designed as a joinder device guaranteeing preclusive effects on rulings that had previously bound only named parties. The Committee intended the device to be used only in limited situations — a use that bears no resemblance to that seen today. Thus, typical criticisms of Wal-Mart have force only in a normative sense — perhaps the rule should be amended to account for its limitations. Critics’ charges that the Supreme Court stripped the rule of its potential reach are not well taken.

The essay takes an atypical structure. After a brief history of class actions, it explores the 1966 amendments through five miniature biographies of key Rule 23 framers. With the groundwork thus laid, I then address Wal-Mart Stores, Inc. v. Dukes specifically, demonstrating why its holding was appropriate in every respect.

Keywords: complex litigation, class actions, Rule 23, civil procedure, legal history, employment law, Title VII

JEL Classification: K10, K19, K31, K39