Today’s Community topic is the effect of the Supreme Court’s holdings on the rights of war-on-terror detainees. In OT07, the Court decided both Boumediene v. Bush and Munaf v. Geren. Since then, however, it has not taken significant action in a detainee case, and – in the absence of further guidance from the Court – the D.C. Circuit has applied its understanding of Munaf to sharply limit, if not completely eliminate, judicial review of military detention decisions. Lyle has posted excellent analyses of these issues under the tag “Detainee Litigation.” Today in the Community, we ask for your thoughts on the prospects for detainees, and your opinions on the Court’s decision to stay clear of this controversy so far this Term.

Here are some of our favorite comments from last week’s discussion about the effect of the Wal-Mart decision on class action litigation.

Richard Samp 

One particularly important important aspect of the Wal-Mart decision was its holding that Rule 23 entitles a class-action defendant to “individualized determinations” regarding individualized issues of fact. (In Wal-Mart, the issue was the amount of back pay to which each plaintiff might be entitled.) But defendants in many state-court class actions do not have the same right. The rationale of those state courts: the principal purpose of class actions (efficient adjudication of multiple claims raising similar fact patterns) would be undermined if individualized evidence had to be introduced for every member of the class. Thus, for example, in a number of class actions raising fraud claims, state supreme courts have held that class-wide reliance on the defendant’s misrepresentations can be presumed — at least where there is evidence of reliance by the class representatives. And while the Class Action Fairness Act permits defendants in many large class actions to remove their cases to federal court, CAFA removal is unavailable in many others.

There is good reason to believe that the Fourteenth Amendment’s Due Process Clause does not permit state courts to deprive class-action defendants of a right to individualized factual determinations. Indeed, it appears to be only a matter of time before the U.S. Supreme Court agrees to hear the issue and extends its Wal-Mart ruling to state class actions. Last year, Justice Scalia granted a temporary stay in a Louisiana case that raised the issue (Philp Morris v. Scott), and the Court held onto the case for nearly a year before finally denying review. Just last week, the Court denied review in a California case (Thomas v. Alcoser) raising the issue. Yet another petition raising the issue (Farmers Ins. Co. of Oregon v. Strawn) is pending at the Court. Given the Court’s oft-repeated statement that due process requires that litigants be afforded “an opportunity to present every available defense” (see, e.g., Lindsey v. Normet), the Court is unlikely to condone state procedures that deny that opportunity to class-action defendants.

John Vail 

The Advisory Committee on Federal Rules will meet Monday and Tuesday in Washington and one of its agenda items is whether the committee should revise Rule 23. The committee’s memorandum on the topic can be found here,, at Tab IX. Under the Rules Enabling Act, revising the rules is generally the turf of the committee, not Congress.

Should the committee revise the rule? Consider the 1950s, an era of American industrial might. In 1955 the top ten companies in the Fortune 500 included industrial giants like General Motors, Chrysler, U.S. Steel, and General Electric. Wal-Mart, today, employs more people than all ten of 1955 Fortune top ten combined. One of the purposes of the civil justice system is to check private power. I may have a tin ear, but I think I hear a swath of America from the Tea Party to Occupy Wall Street saying that private power is a tad too un-checked. Even conservative commentators, like the late Richard Nagareda, whose work was cited in the Wal-Mart decision, assert that class actions are a necessary tool for policing gargantuan organizations. Rule 23 should vest federal judges with sufficient discretion to manage large class actions. If we don’t tame the beast, it will eat us.

Rae Vann 

It may be some time before we know the full extent to which Dukes will alter nationwide class litigation. To be sure, Dukes will bring renewed rigor and discipline to Rule 23 class certification determinations, making it substantially more difficult for plaintiffs to construct “super” class actions as a means of forcing massive settlements, even of questionable claims. For companies that routinely make and implement millions of employment decisions each year, including hires, promotions, transfers, disciplinary actions, terminations, and other employment actions, the decision is sure to tamp down efforts to target them with the sort of broad-based class action rejected by the Court in this case.
At the same time, employers should anticipate and be prepared for a potential increase in individual cases or smaller, more specific Title VII class actions. They also should bear in mind that Dukes will have little, if any, impact on state class action litigation brought under different procedural rules. Furthermore, the EEOC is not bound by Rule 23 at all, and presumably will continue to prosecute class-based claims in the public interest.

Dukes is no panacea, and by no means signals an end to class litigation. Nevertheless, it will help to ensure robust application of Rule 23 so as to prevent future abuse of the class action vehicle.

Timothy Sandefur 

In Dukes, the plaintiffs were trying to use the class action lawsuit as a means of challenging what they perceived as discrimination, but which came from not conscious discriminatory act—just from the allegedly entrenched sexism in American society. In my briefs, I argued that there is no such thing as “social justice” and that the class action lawsuit should not be used to pursue general allegations that American society or capitalism are inherently discriminatory.

In my brief (, I argued that what the plaintiffs were attempting was an argument that Wal-Mart committed a discriminatory act precisely by not having a hiring or promotion policy. Instead, those decisions were made by local managers, who are in the best position to know the skills of their employees and needs of their customers. According to the Plaintiffs, this policy of not having a policy was a discriminatory policy, because it allowed social attitudes (which are sexist) to creep into the decisions made by local managers, and thereby fostered the differential treatment of women and men. My argument was that this was essentially an indictment of all decentralized, bottom-up decision-making processes—that is to say, of capitalism itself, since decisions are made in a free market through the decentralized process of “spontaneous order.” In short, if the lack of a policy was a discriminatory policy, the result would be that a central, top-down policy of hiring and promotion quotas would be legally required. In addition, the basic principle of the plaintiffs’ justice argument—that equal outcomes are mandated by principles of justice—rests on the assumption that there is such a thing as “social justice,” a concept that is actually devoid of meaning and incapable of application. Instead, justice is simply the result of any transaction to which the parties themselves consent.

Posted in Community

Recommended Citation: Tejinder Singh, Today in the Community: November 7, 2011, SCOTUSblog (Nov. 7, 2011, 10:49 AM),