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Moller on Dukes v. Wal-Mart

Mark Moller of Cato, whose commentaries on the behemoth sex discrimination class action of Dukes v. Wal-Mart we've noted earlier, now has a nine-page article in Regulation on the case's implications. Part of the abstract, from SSRN:

...The retailer is the target of the largest certified class action in history: Dukes v. Wal-Mart, a case consisting of two million punitive damages claims filed under Title VII. While it has lost at each stage in the lower courts, Wal-Mart has litigated the case with an eye to Supreme Court review, by arguing, at each juncture, that the Constitution forbids certifying a punitive damages class action of such an unwieldy size.

Wal-Mart's innovative constitutional argument is significant because it implicitly challenges two under-examined commitments at the heart of class action culture: (1) that class actions, as a form of remedy, stand outside the scope of serious due process scrutiny, and (2) that Congress has delegated courts special quasi-legislative powers in the class context.

...A successful Wal-Mart appeal in Dukes, I suggest, just might shake the faith of class action "culture" in both commitments - with potentially far-reaching, and welcome, results for class action law.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.