Document Type
Article
Publication Date
4-9-2013
ISSN
2330-1295
Publisher
JOTWELL
Language
en-US
Abstract
It has been less than two years since the Supreme Court’s controversial decision in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011). During this short period the Court’s opinion has been interpreted by numerous lower courts. It also, not surprisingly, has been the subject of a substantial amount of commentary in law reviews and numerous proposals for legislative reform to restore a promise of class action challenges to employment discrimination that the Dukes decision allegedly shattered. Drawing from this commentary, I would choose these two very different articles as useful guides for tracking the impact of Dukes on employment discrimination class action litigation. The articles, in my view, together make the case that at least in the absence of legislative or judicial qualification, the Dukes decision’s 5-4 split holding on the commonality requirement in FRCP 23(a)(2) may have less of an impact than the Court’s unanimous dicta on the limited remedies allowed for Rule 23(b)(2) classes and the unavailability of statistical modeling to facilitate the certification of Rule 23(b)(3) classes.
Recommended Citation
Michael Harper,
The Uncertain Impact of Wal-Mart v. Dukes
,
in
JOTWELL
(2013).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/3669
