Document Type
Article
Publication Title
The Supreme Court Review
Publication Date
2011
Page Number
1
Keywords
Rule 23, AT&T Mobility LLC v. Concepcion, Wal-Mart Stores, Inc. v. Dukes
Disciplines
Law
Abstract
Class action plaintiffs lost two major five-to-four cases last Term, with potentially significant consequences for future class litigation: AT&T Mobility v. Concepcion and Wal-Mart v. Dukes. The tragedy is that the impact of each of these cases might have been avoided had the plaintiffs’ lawyers, the lower courts, and the dissenting Justices not overreached. In this Article, I argue that those on the losing side insisted on broad and untenable positions and thereby set themselves up for an equally broad defeat; they got greedy and suffered the inevitable consequences. Unfortunately, the consequences will redound to the detriment of many other potential litigants. And these two cases are not isolated tragedies; they provide a window into a larger problem of Rule 23. When plaintiffs’ lawyers chart a course for future litigants, they may be tempted to frame issues broadly for the “big win†– with disastrous consequences. I suggest that it is up to the courts, and especially to those judges most sympathetic to the interests of class-action plaintiffs, to avoid the costs of lawyers’ overreaching. That is exactly what the dissenting Justices (and the judges below) failed to do in these cases.
Recommended Citation
Suzanna Sherry,
Hogs Get Slaughtered at the Supreme Court, 2011 The Supreme Court Review. 1
(2011)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/318