Implausible Wrongs and Dissimilarities: The Supreme Court Continues Its Anti-Litigation Trend, This Time With a Class Action Focus in Wal-Mart v. Dukes

The Supreme Court’s decision this term in Wal-Mart v. Dukes, has broad implications for the future of class actions, particularly where the defendant’s state of mind matters to the claim or where the case involves potentially complicated questions of causation. And when the decision is combined with the Court’s recent decisions about pleadings in Twombly and Iqbal and judges’ views on how people are motivated, the future of class actions seems very uncertain. The Court has invited lower court judges to consider what kinds of legal wrongs they think people are likely to engage in and to focus on what makes members of a putative class different rather than what makes them alike. That invitation will inevitably result in fewer class actions.