A Grudging Defense of Wal-Mart v. Dukes

Abstract

The Supreme Court's denial of class certification in Wal-Mart v. Dukes has been viewed by many as a wholesale rejection of the use of discrimination law for social change. In this Article, I argue that the Supreme Court would have been open to certification had the plaintiffs given more careful attention to the difficult doctrinal and normative issues raised by their case. The plaintiffs' evidence suggested significant problems with the treatment of women at Wal-Mart, but these facts were never tied in any systematic way to a plausible theory of liability under Title VII of the Civil Rights Act of 1964.