Wal-Mart v. Dukes: The Feminist Case Against Individualized Adjudication

Abstract

Discussions of due process often focus on individualizing trials in order to provide persons an opportunity to be heard. In keeping with this traditional understanding, Justice Antonin Scalia’s majority opinion denying class certification in Wal-Mart v. Dukes describes class actions as “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” This Comment grapples with the normative implications of the American legal focus on individualized (rather than collective) adjudication. It argues that the “usual rule” of individualized adjudication makes it much more difficult for the American legal system to adequately evaluate claims of widespread discrimination. When such claims arise from the behavior of numerous bad actors operating within an institutional context, the adjudicative focus on individuality tends to obscure how oppressive institutional dynamics have made the discrimination possible. These dynamics often only become evident when individual experiences are considered in the aggregate, in two key ways. First, as the #MeToo movement shows, aggregation of claims results in believability: one woman accusing a powerful man of sexual misconduct can be easily dismissed, but hundreds of accusers are more difficult to ignore. Second, aggregating claims can often demonstrate the institutional dimension of discrimination, proving that discriminatory behavior is not due to a single bad actor, but rather has been enabled by institutional structures that must be changed to prevent the behavior from recurring.