Wednesday, December 8, 2010
Justice Ginsburg and the Dukes Class Action
Our own Howard Erichson was cited in a Supreme Court amicus brief for his observation that "Granted,
the Wal-Mart class action isn't a mass tort, but the Ninth Circuit's previous decision that upheld certification of the largest class action to date bears significantly on class action law in general." For this reason, the Court's grant of cert in the case on Monday signals a banner year for class actions in the Supreme Court.
The Court has been hostile to mass tort class actions and among the hostile Justices we should pay special attention to Justice Ginsburg. Justice Ginsberg is a proceduralist (she once taught civil procedure). She has evidenced a desire to read the class action rule narrowly and rigorously, not only in Amchem v. Windsor, but also more recently in Shady Grove v. Allstate, in which she desribed the process by which a number of individual small claims become a class action as a form of "alchemy" and I would say came pretty close to suggesting that class action rule violates the Rules Enabling Act (although she certainly did not go that far).
At the same time, Justice Ginsburg is a well known proponent of women's rights and antidiscrimination law. She was on the front lines of sex discrimination litigation when she was in practice, back in the day.
In the Dukes class action she faces a crash course between two values: her apparent increasingly skeptical view of the class action as an instrument of doing justice and deterring wrongdoing and her committment to gender equality. It will be very interesting to see how she resolves that tension.
[edited to fix link]