Reactions to Wal-Mart v. Dukes: Litigation Strategy and Legal Change

Abstract

Most discussions of legal doctrine assume that litigants will react to a change in doctrine, but not that they will try to influence that doctrine further by adopting new arguments or finding loopholes in the doctrine itself. As a result, legal scholars tend to overstate the reactions to changes in doctrine, and understate the role of legal strategy in changing doctrine. One recent example is the legal academy's pronouncement of the "death of the class action" in response to the Supreme Court's opinion in Wal-Mart Stores, Inc. v. Dukes. In fact, when one examines the lower court responses to Dukes, it becomes clear that Dukes did not present a significant change in class-action doctrine, let alone sound a death knell for the device. Instead, it was a periodic correction in an area where litigants have fought for advantage over a period of more than forty years.

Keywords: class action, commonality, litigation, strategy