The New York Times has a thoughtful piece on the Dukes v. WalMart Stores, Inc. case following oral argument in the United States Supreme Court – see article here. I wrote about some of the issues and players in this case earlier in my tilting at windmills post.
The question in today’s post’s headline is the key issue.
I have pursued a lot of discrimination cases, including gender discrimination and Equal Pay Act cases. None were class actions. And in each case, the pursuit of justice was an individual matter based on that person’s set of circumstances.
I am intrigued by the comments by Justice Scalia. Is mass produced justice on the scale of the Wal Mart plaintiffs’ class real justice for each plaintiff? Or even for most plaintiffs?
According to Samuel Issacharoff, a law professor at New York University, “You need to have mechanisms of enforcement that correspond to the scale of the economic activity.” WalMart’s alleged discrimination is on an enormous scale. The reality is that the litigation burden would be overwhelming if each and every plaintiff were required to pursue her own claims against this employer all across the nation. Overwhelming for each plaintiff to take on the nation’s largest employer. And overwhelming for the courts. Maybe even overwhelming for WalMart.
As another commentator says, it’s a balance between fairness and efficiency. Few doubt that there is a wrong done here that needs to be fixed. What is the best way to fix it?
I wonder if the United States Supreme Court will have an answer.