Law, fairness, and Wal-Mart v. Dukes

I’ve got an instant analysis up at Cato at Liberty of the retailer’s big Supreme Court win today in Wal-Mart v. Dukes, the class action certification case. The Court ruled unanimously that the Ninth Circuit had jumped the gun in certifying the case as a class action, and 5-to-4 (Scalia writing) that plaintiffs had failed to assemble the evidence needed for certification. (& welcome Real Clear Politics “Best of the Blogs”, Atlantic Wire, Nicole Neily/Daily Caller, Jon Hyman, SCOTUSBlog)

More: Josh Blackman (with a comment on the Court’s recognition of the work of the late Richard Nagareda), Hans Bader, Jim Copland, John Steele Gordon. Spot-the-errors dept.: Dahlia Lithwick. Briefs and other resources on the case at SCOTUSBlog.


  • “But it’s not — and we should be glad lawyers at every big company aren’t yet insisting that every local HR decision be sent to a distant headquarters for fear of liability.”

    I agree with this. The complaint contradicted itself, too, claiming that there was systemic discrimination while it also let local operations run amok. Logically, these would seem mutually exclusive arguments. Pleadings can be plead in the alternative to some extend, certainly. But I think this came back to haunt them.

  • […] Mitchell IV) show on Baltimore’s WBAL, scheduled for 1:35. More on the Dukes decision here and […]

  • […] about Wal-Mart v. Dukes here, here, and […]

  • I was pleased that the ridiculous theory of the case was rejected by all of the justices. But a danger pierced my heart when Justice Breyer sided with Justice Ginsberg and the other girls in their view of discrimination against women. The 59 cents for women vs 1 dollar foe men (It’s now more than75 cents.) was explained decades ago. It is amazing that such professionals, Justices on the Supreme Court, could be so ignorant.

    A manager who fairly values his potential hires has a competitive advantage over managers who do not. Statistical results, such as funding for women athletes vs men athletes reflect more the fact that women and men were subjected to different selective pressures during their evolution. That mothers suckle youngsters, not fathers, has nothing to do with the raising of boys.

  • […] Not for first time, Dahlia Lithwick misrepresents Wal-Mart case [Ponnuru, Whelan, earlier here and here] […]