The Supreme Court Review
Rule 23, AT&T Mobility LLC v. Concepcion, Wal-Mart Stores, Inc. v. Dukes
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 plaintiffsâ€™ 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 plaintiffsâ€™ lawyers chart a course for future litigants, they may be tempted to frame issues broadly for the â€œbig winâ€ â€“ 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 lawyersâ€™ overreaching. That is exactly what the dissenting Justices (and the judges below) failed to do in these cases.
Hogs Get Slaughtered at the Supreme Court, 2011 The Supreme Court Review. 1
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/318