Seiner on the Constitutional Implications of Wal-Mart v. Dukes

    In Wal-Mart Stores v. Dukes (2011), the US Supreme Court ruled in part that a district court had improperly applied Federal Rule of Civil Procedure 23(a)(2) (requiring “questions of law or fact common to the class”) when it had certified a plaintiff class in a Title VII pay discrimination lawsuit against Wal-Mart, because those plaintiffs had provided “no convincing proof of a companywide discriminatory pay and promotion policy.”  Since then, some have argued for reading Wal-Mart’s gloss on FRCP 23(a)(2) into the Fourteenth Amendment’s Due Process Clause to set a minimum necessary condition for class actions under State law as well as federal law.

    Enter Joe Seiner (our fellow co-blogger), who has posted a new paper: “Commonality and the Constitution: Applying Wal-Mart to State Court Cases,” forthcoming in the Indiana Law Journal (2016).  From the paper:

This Article begins by explaining the contours of the Wal-Mart decision, emphasizing the Court’s view of commonality under the federal rules. Next, this paper discusses the argument that Wal-Mart creates a constitutional floor for commonality in all class-action litigation. This paper critiques this argument, and explains why the Wal-Mart decision should be limited to federal court claims brought under Rule 23. Finally, this Article develops a normatively fair definition of commonality, identifying five core guideposts that should be considered when determining whether a class-action claim satisfies the Due Process Clause. This Article explains the implications of adopting the proposed guideposts, and situates the proposed framework within the context of the existing academic literature. . . .

[Those guideposts:]  [T]o satisfy the Due Process Clause of the Constitution with regard to commonality, all complex litigation must: (1) present a uniform company policy or problem that is (2) effectuated by management level employees, (3) creates common harm; and (4) the case must include mutual questions shared by all plaintiffs (5) that are capable of resolution across the entire class.

This topic is particularly salient given the Supreme Court’s recent decision to grant a cert. petition in Tyson Foods, Inc. v. Bouaphakeo.

 

--Sachin Pandya