Save Wal‐​Mart, Save Class Action Law?

I’ve got a short Regulation Magazine piece on the notorious (or glorious, depending on your perspective) Dukes v. Wal‐​Mart case – a gender discrimination class action composed of as many as 2 million women, according to some estimates. You can read more about the case here and download my Regulation piece here.


Many believe the case is headed to the Supreme Court – if not this upcoming term, then the next. If it does, and if the Court takes up Wal‐​Mart’s constitutional arguments against certification, then, I argue, it might just set the stage for some far‐​reaching, and overdue, conceptual changes in the way we think about the constitutional rights of class action defendants. My piece uses Dukes as a springboard for sketching some of these defenses – admittedly quite adventurous – which just might become a bit less exotic if Wal‐​Mart succeeds.