Tuesday, March 1, 2011

Profs' Amicus Brief Filed in Wal-Mart v. Dukes

Scotus In more SCOTUS news, the briefing is almost finished as we head towards the oral argument at the end of the month for Wal-Mart v. Dukes, the class action sex discrimination case. And today, a group of 31 law professors filed an amicus brief in support of the plaintiffs. Melissa Hart (Colorado) is the counsel of record, and Alexandra Lahav (Connecticut), Arthur R. Miller (NYU), Paul M. Secunda (Marquette), and Adam Steinman (Seton Hall) also pitched in. Twenty-six more professors who teach civ. pro., employment discrimination, and related classes also signed on, including me. 

Here's the summary of the argument: 

The class action device is essential to a well-functioning system of justice because of its ability to balance the values of access to the courts and efficient adjudication of disputes. This was the vision of the drafters of Federal Rule of Civil Procedure 23. This Court can and should interpret Rule 23's text in a way that vindicates these overarching goals.

Particularly in an adjudicative class action, the certification motion needs to be understood as a preliminary step that is complimented by motions to dismiss and summary judgment motions. The aim of class certification is not to screen out suits that fail even to allege a claim for relief (that is for motions to dismiss), nor to issue dispositive rulings on the merits (that is the purpose of summary judgment or trial). Instead, it is to determine whether the purposes of the class action rule would be served by proceeding with a collective litigation. 

The district court did not abuse its discretion in concluding that the proposed class met the requirements of Rule 23(a). In fact, the court’s attention to the detailed pleadings and the extensive evidence gathered by the parties in assessing whether the named plaintiffs’ claims shared common questions of law or fact with claims of absent class members showed a level of rigorous evaluation that went beyond the 23(a) threshold.  Classification of the class under 23(b)(2) was also appropriate under the Federal Rules. Petitioner’s contrary arguments ignore the text, purpose and history of Rule 23.

I'm sure the brief will be available shortly in Scotusblog's case file. In the meantime, you can see the merits briefs and all of the amici in support of Wal-Mart. From my brief count, if the number of amici in support of respondents mirrors the number in support of petitioners, there will likely be near thirty total.  That number and amount of activity speaks volumes to the stakes of this case as a cultural matter.

Update -- here's a pdf version of the brief: Download Civil procedure professors amicus brief



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This is not even close to the record. I don't know what the record is, but there were over 80 amicus briefs filed in Grutter, and nearly 80 in Webster v. Reproductive Health Services. Ricci had far fewer.

Posted by: Scott Nelson | Mar 8, 2011 11:49:47 AM

At the time, the clerk's office at the Supreme Court had told me that it looked like Ricci was going to break the record, but perhaps that was before all of the briefs were due and in. I'll moderate my hyperbole.

Posted by: Marcia | Mar 9, 2011 7:41:53 AM

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