Tuesday, June 21, 2011
The NYTimes Room for Debate feature has a series of short posts from various law professors about the Wal-Mart case. There are a few good ones there from Richard Banks, Melissa Hart, Tanya Hernandez, and Suzette Malveaux.
I was especially taken with Richard Primus' take on the individualism espoused by the decision versus the potential for social reform that a more collectivist view permits. This is the same argument (albeit in a different area of the law) as that made most forcefully by David Rosenberg in the mass tort context (see his article Decoupling Deterrence and Compensation Functions in Mass Tort Class Actions for Future Loss).
In a series of recent decisions the Supreme Court has shorn up the individualist approach to litigation. Examples include Taylor v. Sturgell last term (rejecting a theory of 'virtual representation' in preclusion doctrine) and Smith v. Bayer this term (limiting the reach of the federal courts who have denied class certification to enjoin allegedly "copycat" state court class actions). Sam Issacharoff has written about this phenomenon in the October 2007 Term in his article Private Claims, Aggregate Rights. Wal-Mart v. Dukes is of a piece with this trend.
The problem of course is that the political economy of litigation and the structure of a mass consumption society does not fit well with the individualized approach that the Court prefers. This lack of fit raises a deeper question - what sources should the Court use to determine these questions when it has a choice between adopting an interpretation of a procedural rule that is more friendly to aggregation and one that is more hostile? A formalist would respond by saying that the Court was interpreting the law. But the split between the Justices on the commonality question indicates that there are multiple interpretations available and the choice between them is based on something other than the clear language of the Rule. That "something other" I think is a policy preference for individualism over aggregation, and there are good reasons for this preference, but also good reasons to be wary of formal individualism that ends up preventing the functional vidication of rights.