Academic journal article Notre Dame Law Review

Justice Scalia and Class Actions: A Loving Critique

Academic journal article Notre Dame Law Review

Justice Scalia and Class Actions: A Loving Critique

Article excerpt


I have been asked to write an essay on Justice Scalia's class action jurisprudence and although I suspect many readers will find this surprising because the Justice is so often linked to constitutional law, I actually think that his class action jurisprudence may be where his opinions leave some of the biggest marks. To be as blunt about it as the Justice himself would have been: for better or for worse, I am not sure any other Justice of the Supreme Court in American history has done more to hinder the class action lawsuit than Justice Scalia did. (1)

The Justice did his damage not so much in his opinions interpreting the Federal Rules of Civil Procedure--there, his opinions gave both sides of the class action divide something to like--but in his opinions interpreting the Federal Arbitration Act (FAA). Under the auspices of the FAA, the Justice authored two majority opinions giving a green light to corporations that want to opt out of class-wide liability entirely so long as they do so using arbitration contracts. (2)

I am one of the Justice's biggest fans. But his FAA opinions are not my favorites of his opinions. As many commentators have noted, it is very hard to square these opinions with either the text or the history of the FAA.

For these reasons, many commentators have assumed that Justice Scalia was more animated by his conservative ideological preferences in these cases than to his fidelity to the original understanding of the text. That may be-- although the Justice tried very hard to separate his personal views from his jurisprudential views, he was not superhuman--but, if it is what motivated these decisions, I am not sure the Justice got it right on this point either. On a superficial level, of course, conservatives tend to side with the interests of corporations and liberals with the interests of plaintiffs' lawyers. But not always. There are plenty of times when conservative principles deviate from corporate interests. As I explain, I wonder if class action waivers should be one of these times. In my view, it is hard to see how the conservative (and, often, libertarian) free market principles that Justice Scalia and I shared suggest that corporations should be allowed to opt out of class action lawsuits.

In Part I of this Essay, I review the Justice's class action opinions; I give special emphasis to his opinions interpreting the FAA and explain why I think it is hard to square those decisions with either text or history. In Part II, I explain why I think even conservative and libertarian ideology may not be consistent with the Justice's FAA opinions.


Justice Scalia authored dozens of opinions in class action cases, but only six of these opinions--five opinions for the Court and one dissent--were about class actions. (3) Four of these opinions interpreted the Federal Rules of Civil Procedure--Wal-Mart Stores, Inc. v. Dukes, (4) Comcast Corp. v. Behrend, (5) Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., (6) and Devlin v. Scardellett (7)--and two of them interpreted the FAA--American Express Co. v. Italian Colors Restaurant (8) and AT&T Mobility LLC v. Concepcion. (9) As I said, the former opinions are something of a mixed bag, but the latter opinions could not have done more to undermine class aggregation. (10)


Let me begin with the cases interpreting the Federal Rules. Here, Justice Scalia made things a bit harder for class actions in Wal-Mart and Comcast, but a bit easier in Shady Grove. And he would have made things even easier still in Devlin had he not ended up in the dissent.


Of these opinions, Wal-Mart, is by far the most famous. There, Justice Scalia decertified a nationwide class of 1.5 million current and former female employees of Wal-Mart who had sued the merchant for sex discrimination. (11) The opinion is most famous (or infamous, depending on your point of view) (12) for ratcheting up the requirement in Federal Rule 23(a)(2) that all members of a class have at least one question of fact or law in common before the class can be certified (known as the "commonality" prerequisite). …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.