This Article does not delve deeply into the substantive issues of Wal-Mart, Concepcion, or Italian Colors...My focus is on how Rule 23 has fared, structurally and practically, in the aftermath of the “common answer” formulation of Wal-Mart; three other decisions of the Roberts Court, Dukes, Amgen, and Comcast; and three cases that the Roberts Court did not ultimately take in the wake of Amgen and Comcast: its denials of review in Whirlpool, Butler, and Deepwater. Also discussed is the newly intense debate on the use of cy pres, catalyzed by Chief Justice Roberts’ extraordinary “Statement” accompanying the denial of certiorari in Marek v. Lane. This Article’s brief Wal-Mart discussion focuses on the case as an instance—perhaps anomalous—of the Court’s indifference to the structural constraints of Rule 23 itself in transporting the requirement for predominance of common issues from Rule 23(b)(3) to Rule 23(b)(2). This structural disruption at once dismayed employment rights advocates and, intentionally or not, provided a practical tool for the design and trial of class cases by plaintiffs.
Cabraser, Elizabeth J.
"The Class Abides: Class Actions and the "Roberts Court","
Akron Law Review:
4, Article 3.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol48/iss4/3