Res Publica: Law and Social Policy Blog and Forum

Posts by Elizabeth Dubats

Introducing Res Publica


Res Publica translates from Latin as “public issue” or “public matter.” JLSP’s Res Publica is an online academic forum that integrates interdisciplinary perspectives on current legal issues with discussion of significant social ramifications. The purpose of Res Publica is to highlight topical legal issues of wide public concern and explore the intersections between the law and other relevant scholarship.

Our first issue explores the Supreme Court’s decision in Walmart v. Dukes, 131 S.Ct. 2541 (2011). In Dukes, plaintiffs sought certification of a class of 1.5 million women who were current or former Walmart employees to bring suit against Walmart for violation of Title VII of the Civil Rights Act of 1964. Plaintiffs alleged that male employees were disproportionally favored over female employees both in compensation and promotion. Plaintiffs relied on statistical studies to demonstrate a disparate impact to support their claims of systematic discrimination. The Court held that plaintiffs’ class failed to meet the requirements of Fed. R. Civ. Pro. 23(a)(2) that all claims raise common “questions of law or fact.”  Specifically, the Court found that plaintiffs failed to demonstrate a strong enough of a relationship between the personnel decisions regarding each class member to warrant certification. The Court’s decision raises many important issues, including those of procedural justice and proper interpretation of statistical analyses in discrimination cases.

To explore these questions further and examine the possible implications of the decision going forward, Res Publica reached out to legal professionals, law professors, and professors in other fields for their thoughts on the decision. Their responses are posted below.



Procedural Justice after Dukes

By Elizabeth Chamblee Burch*


Wal-Mart Stores, Inc. v. Dukes is the latest in a long line of both congressional and court-based maneuvers that make certifying a class increasingly difficult and nonclass aggregation through multidistrict procedures exceedingly likely. Since the mid-1990s, both Congress and the courts have taken steady measures to curtail the prevalence of class actions by providing federal courts with jurisdiction, making it harder to plead claims, and raising the threshold for class certification. Consider, for example, the changes wrought over the past fifteen years by the Private Securities Litigation Reform Act, the Securities Litigation Uniform Standards Act, Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and the Class Action Fairness Act, to name but a few.

Although each of these changes made class actions more difficult to certify, Wal-Mart Stores, Inc. v. Dukes dramatically altered the relative ease with which plaintiffs’ counsel could certify not only a Rule 23(b)(2) class, but classes across the board. The Dukes majority presented defendants with three forms of new artillery: a formidable commonality standard under Rule 23(a), an impossibly high standard for recovering monetary remedies on a classwide basis under Rule 23(b)(2), and, lest a class squeak by under Rule 23(b)(3), the ability to raise individual defenses.

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Did the Supreme Court Appreciate the Statistical Evidence Pertaining to “Commonality” in Wal-Mart v. Dukes?


By Joseph L. Gastwirth, Weiwen Miao, and Efstathia Bura*


Under Rule 23(a)(2), a party seeking class certification must show there is a question of law or fact common to the class. In support of their claim of class-wide gender-based pay disparities, the plaintiffs in Wal-Mart v. Dukes submitted a regression analysis of salary data for each region. 131 S.Ct. 2541 (2011). Their regression accounted for seniority, weeks worked, job held, performance rating, the particular store where the employee worked, and their gender. Females were found to be paid significantly lower than males in almost all regions. The defendant’s expert analyzed the data for each store, separating out employees of grocery departments. They found that, even though females in about three-fourths of the stores were paid less than their male counterparts, the pay disparity was statistically significant in only 10% of the stores. The majority opinion (id. at 2555) indicates that information about disparities at the national and regional level cannot establish the existence of disparities at individual stores, as a regional disparity may be attributable to a small subset of stores. The dissent (id. slip op. at 6, n.5) states that plaintiffs’ regression showed there were disparities within stores. Unfortunately, neither opinion is statistically correct.

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Ask a Practitioner

Amber M. Nesbitt is an Associate Attorney at Wexler Wallace, LLP. She has experience in civil rights, securities, consumer fraud, healthcare, and antitrust matters. Res Publica interviewed Ms. Nesbitt on October 31, 2011.

What is your class action background and experience?

At Wexler Wallace, we litigate all kinds of class actions, in addition to a few other nonclass cases. Personally, in the past two or three years I’ve been focusing more on pharmaceuticals, whether it’s antitrust, consumer fraud, or other pricing issues. I do some non-pharmaceutical work as well, including consumer fraud and breach of contract or fiduciary duty cases. However, lately my focus has mostly been pharmaceutical antitrust.

You are you familiar with the Dukes decision. Is there anything, any part of it, that you think the Supreme Court got right?

No. Most of the classes we seek to certify are Rule 23(b)(3) classes, so focusing on the portion of the decision relating to whether a common question of law or fact exists as required by Rule 23(a)(2), I think they got it wrong.  We actually think the decision changes the law more with respect to Rule 23(b)(2), but some of the unfortunate language from the decision is making its way into our cases.

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