April 8, 2011
N.Y. Times Editorial on Wal-Mart v. Dukes
[D]uring oral argument last week, conservative justices and liberals to some degree expressed skepticism: Is there enough “cohesion” among the women to justify treating them as a single class? If so, how could a solo trial judge manage such an enormous class action?
A brief by 31 professors of civil procedure explains why the women are a suitable class. Their claims meet the core test: They have in common the question of whether Wal-Mart discriminated against them. Meanwhile, the high cost of litigation compared to the low likely individual recoveries would make it hard for the women to proceed any other way. …
If the court has doubts about whether the class is cohesive or manageable enough, it should ask the trial judge to explore whether there is a single class or more than one — say, salaried female employees and hourly employees or female store managers and other kinds of employees. That would be much fairer than dismissing the case and insisting that 1.5 million women fend for themselves.