The Anti-Constitutional Culture of Class Action Law

Posted: 28 Jun 2007

See all articles by Mark Moller

Mark Moller

DePaul University - College of Law


Legal sub-fields aren't just collections of cases and doctrines. They are each animated by a set of commitments, shared among practitioners and academics, that might be described as a kind of legal culture.

The culture of class action law is under assault from an unlikely rebel: Wal-Mart. The retailer is the target of the largest certified class action in history: Dukes v. Wal-Mart, a case consisting of two million punitive damages claims filed under Title VII. While it has lost at each stage in the lower courts, Wal-Mart has litigated the case with an eye to Supreme Court review, by arguing, at each juncture, that the Constitution forbids certifying a punitive damages class action of such an unwieldy size.

Wal-Mart's innovative constitutional argument is significant because it implicitly challenges two under-examined commitments at the heart of class action culture: (1) that class actions, as a form of remedy, stand outside the scope of serious due process scrutiny, and (2) that Congress has delegated courts special quasi-legislative powers in the class context.

In this nine page magazine article, I use Dukes as a backdrop to briefly critique these two commitments and show how they have obscured some broader constitutional arguments against large-scale public policy class actions. A successful Wal-Mart appeal in Dukes, I suggest, just might shake the faith of class action "culture" in both commitments - with potentially far-reaching, and welcome, results for class action law.

Keywords: Class Action, Punitive Damages, Due Process, Separation of Powers

Suggested Citation

Moller, Mark, The Anti-Constitutional Culture of Class Action Law. Regulation, Vol. 30, No. 2, 2007. Available at SSRN:

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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