On Tuesday, March 29, the Supreme Court will hear oral argument in Wal-Mart v. Dukes to decide whether a court may certify a class action by as many as 1.5 million former and current female employees against Wal-Mart for alleged discrimination in pay and promotion policies. Dukes has been described as one of the most important business cases on the Court’s calendar this term, and it may lead to significant changes in the implementation of class actions in employment discrimination cases.  So it’s no surprise that the case has already generated some interesting academic discussion.
Professors Elizabeth Burch, Robert Bone, Alexandra Lahav, Greg Mitchell, and Richard Nagareda all weighed in on the Ninth Circuit’s decision in a roundtable hosted by Vanderbilt Law Review. Their essays are available here. In a forthcoming article in the Harvard Law & Policy Review, Professsor Suzette Malveaux argues that Rule 23(b)(2) is the appropriate mechanism for class certification of a case in which money damages is not the exclusive or predominant form of relief sought.  Professor Mark Moller has posted an article on ssrn asserting that Walmart’s constitutional arguments are not supported by the original understanding of due process, but rather are consistent with Lochner era views that a party can’t be deprived of property without heightened procedural protections.  And Jospeh Gastwrith, Efstathia Bura and Weiwen Miao explain how statistics can be effectively employed to analyze plaintiffs’ claims in such cases in an article available here. All are recommended reading for those interested in the case.
CLICK HERE FOR FULL VERSION OF THIS STORY