The Case Against Constitutionalized Commonality Standards for Collective Civil Litigation

Abstract

It is no secret that the current Supreme Court is hostile to class actions and other forms of group litigation. One area that has received considerable attention from the Court is the requirement that "there [be] questions of law or fact common to the class," and, in most class action suits for damages, that "common questions of law or fact . .. predominate over any questions affecting only individual members." In Wal-Mart Stores, Inc. v. Dukes, the Court held that, under the statutory burdens of proof in Title VII, an employer is entitled to individualized determinations before backpay can be awarded. The Court further disparaged judicial efforts to facilitate such class suits as "Trial by Formula." This year, the Court further indicated its skepticism of claims to commonality in Comcast Corp. v. Behrend.