In the first Issue of Res Publica, The Northwestern Journal of Law and Social Policy blog and forum, Wexler Wallace Attorney Amber Nesbitt was interviewed about the Dukes v. Wal-Mart 2011 Supreme Court decision. Res Publica dedicated its entire first issue to examining the Dukes case and the possible implications of the decision going forward.
Wexler Wallace has seen the impact of the 2011 decision as defendants over the past year pointed to the ruling in attempts to decertify classes. Amber, an attorney with Wexler Wallace since 2004, was interviewed for the Ask a Practitioner section of Res Publica and was asked how Dukes has affected her practice. When asked what she thinks the Supreme Court got wrong, Amber answers:
The common question in Dukes was essentially whether Wal-Mart’s policy itself, which afforded discretion in making pay and promotion decisions, gave rise to the discrimination that was being complained of. That to me is the common question that should satisfy Rule 23(a)(2), and the dissent thought so as well. But the majority framed the issue as requiring there to be not only a common question, but essentially that there is also a common answer. That is not the what Rule 23(a)(2) says, but now the Dukes plaintiffs were required to prove their Title VII claims at class certification by establishing that Wal-Mart’s policy in fact did result in discriminatory practices to the proposed class. In addition, before Dukes, one of the desirable aspects of Rule 23(b)(2) was the absence of the need to prove predominance, where most of the fighting occurs in the (b)(3) context. In Dukes, the Court essentially created the need to prove predominance under Rule 23(a), so it added an element that has never been required under Rule 23(b)(2).
For the full interview, please click here.