Class Actions, Heightened Commonality, and Declining Access to Justice

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class." Although this "commonality" requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave the requirement new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such a reading of Rule 23's commonality requirement unsupported by the text of the rule, but it also is at odds with the historical understanding of commonality in both the class action and joinder contexts. The Court's articulation of a heightened commonality standard can be explained by a combination of its negative view of the merits of the discrimination claims at issue in Dukes, the conflation of the predominance requirement with commonality, and the Court's apparent penchant for favoring restrictive interpretations of procedural rules that otherwise promote access. Although an unfortunate consequence of the Dukes Court's heightening of the commonality standard will be the enlivening of challenges to class certifications that would otherwise never have been imagined, this Article urges the Court to reject heightened commonality and read Rule 23 in a manner that remains true to the language and history of the common question requirement.INTRODUCTION 442I. THE ROOTS OF COMMONALITY 449A. The Antecedents of Rule 23 4501. The Precursors of the Common Right Requirement 4522. The Origin of the "Common Question" Requirement 4553. The Contradistinction Between Common Questions and Common Rights 458B. The Modern Version of Rule 23 461II. DUKES AND THE DEVELOPMENT OF HEIGHTENED COMMONALITY 463A. The Same Injury Requirement 464B. The Centrality Requirement 470C. The Efficiency Requirement 473III. HEIGHTENED COMMONALITY AND THE RESTRICTIVE ETHOS IN CIVIL PROCEDURE 475A. Threshold Skepticism 476B. Disfavored Actions 479C. Anti-Claimant Bias and Outgroups as Class Claimants 484CONCLUSION 488INTRODUCTION"The text is the law, and it is the text that must be observed."-Justice Antonin Scalia1The class certification decision is one of the most hard-fought battles in civil litigation. Aggregating many claims in a single action can threaten defendants with immense liability, a threat that can be reduced or avoided altogether when prospective plaintiffs are denied the opportunity to pursue their claims collectively. This battle has been waged primarily under Rule 23 over concerns such as mootness,2 notice,3 predominance,4 and adequacy of representation.5 Whether monetary relief can be properly sought in the context of an injunctive-relief class certified under Rule 23(b)(2) has also been a point of contention.6 What has heretofore not been the subject of the same degree of controversy, however, is the issue of whether a proposed class had questions of law or fact in common as required for class certification under Rule 23(a)(2).7 That changed in 2011 when the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes,8 in which it held that a putative employment-discrimination class did not satisfy this "commonality" requirement.9Commonality, which refers to the requirement that "there are questions of law or fact common to the class,"10 is a prerequisite to class certification that, prior to Dukes, had been seen as relatively easy to satisfy.11 It requires that each member of the class assert claims that share legal or factual issues with one another. For example, if there were a group of consumers, each of whom had experienced the same product defect, a common factual question uniting the class would be whether the product had an alleged defect;12 a common legal question in this scenario might be whether the defendant owed and breached a duty of care to the plaintiffs or negligently failed to warn them. …