Res Publica: Law and Social Policy Blog and Forum

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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