Publication Date

Winter 2016



Document Type



In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court concluded that the allegations of pay discrimination in a case brought by over a million female employees lacked sufficient commonality to warrant class certification under Federal Rule of Civil Procedure 23(a). Though the case was expressly decided under the federal rules, some well-known employer groups have begun to advance the argument that Wal-Mart was decided on constitutional grounds. These advocates maintain that the Supreme Court’s decision creates a commonality standard for all class-action plaintiffs — regardless of whether those litigants bring their claims in federal or state court. This Article explores the possible constitutional implications of the Wal-Mart decision. This paper explains the potential due process concerns of commonality in class-action claims, and critiques the argument that Wal-Mart creates a constitutional floor for all systemic litigation.

This Article further fills a void in the scholarship by establishing a framework for analyzing whether class-action claims satisfy commonality under the Constitution. This paper develops a normatively fair definition of commonality, identifying five core guideposts that should be considered when determining whether a class-action claim complies with due process guarantees. This Article explains the implications of adopting the proposed guideposts, and situates the suggested framework within the context of the existing academic literature. Wal-Mart signals a sea change for how commonality will be analyzed in all class-action cases. This Article helps define what commonality means under the Constitution, and the guideposts identified here will help streamline all future complex litigation.


Reprinted with permission of the author and the Indiana Law Journal, 2016.

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