Common Problems for the Common Answers Test: Class Certification in Amgen and Comcast

2013 Cato Supreme Court Review 301

DePaul Legal Studies Research Paper No. 13-09

31 Pages Posted: 26 Oct 2013 Last revised: 9 Jan 2014

See all articles by Mark Moller

Mark Moller

DePaul University - College of Law

Date Written: October 24, 2013

Abstract

The Supreme Court’s 2011 decision, Wal-Mart Stores, Inc. v. Dukes, drew heavily on the work of the late Professor Richard Nagareda. In a series of seminal articles, Professor Nagareda urged courts to treat class action procedure as a handmaiden to the substantive law — a tool to enforce it, rather than a cover for altering it. Has the Court, since Wal-Mart, taken Professor Nagareda’s advice? This article, published in the Cato Institute’s review of the Supreme Court’s 2012-2013 term, takes a look, with a focus on the Supreme Court’s two biggest post-Wal-Mart class action decisions to date: Amgen Inc. v. Connecticut Retirement Plans & Trust Funds and Comcast v. Behrend. It argues that, while conforming to the letter of Professor Nagareda’s formulation of the class certification test, each of these decisions violated the spirit of his work. In each case, different majorities of the Court used the class action procedure to pursue favored substantive projects below-board, outside the usual constraints of substantive justification.

Keywords: class actions, common answers, Amgen, Comcast, Wal-Mart, Richard Nagareda, class certification, predominance, common questions, aggregation, Rule 23

JEL Classification: K10, K40, K41

Suggested Citation

Moller, Mark, Common Problems for the Common Answers Test: Class Certification in Amgen and Comcast (October 24, 2013). 2013 Cato Supreme Court Review 301, DePaul Legal Studies Research Paper No. 13-09, Available at SSRN: https://ssrn.com/abstract=2344877

Mark Moller (Contact Author)

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604
United States

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