Wednesday, June 22, 2011

Some Observations on the Wal-Mart Case

By Mike Dorf

Monday’s Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes is notable for multiple reasons. Here I’ll briefly address three.

1) Over the last quarter of a century, the scholarly interests of the legal academy have been drifting ever further from the concerns of courts. “Doctrinal scholarship,” in which legal scholars ask how various legal questions ought to be resolved by courts, has increasingly fallen out of fashion. Much of this drift is a healthy reflection of legal scholars bringing to bear a more diverse set of tools from related disciplines, such as history, philosophy, economics, statistics, psychology, and other fields. The work of the modern legal academy thus often reflects the professional norms of these other fields in which the scholars were trained--typically more descriptive and less prescriptive. On the whole, this means that whereas a generation or two ago a typical legal scholar imagined himself (and very rarely herself) as a kind of “shadow judge,” our perspective these days is much more external to the work of the courts. Nonetheless, despite all of this drift, legal scholars want to have influence. The Holy Grail is to write an article that becomes the basis for a new statute or a legal doctrine. Judged by that measure, the Wal-Mart decision crowns Richard Nagareda as an extraordinarily influential scholar. Both the majority and the four-Justice partial dissent repeatedly cite Nagareda on the key questions of the meaning of Federal Rule of Civil Procedure 23--almost in the way that an early-19th-century court would have cited Blackstone. This is bittersweet because Richard--whom I had the pleasure to meet only once--passed away well before his time less than a year ago.

2) Turning to the merits of the case, I want to register a tiny bit of faint praise for the majority opinion--intended to damn it, but not entirely. As yesterday’s highly critical NY Times Op-Ed pointed out, "the majority requires that potential members of a class show that they are likely to prevail at trial when they seek initial certification. In this change, the court has made fact-finding a major part of certification, increasing the cost and the stakes of starting a class action."

I agree, and in that important respect, the ruling is reminiscent of the Roberts Court’s most damaging adventure in civil procedure--the pair of rulings in Bell Atlantic v. Twombly and Ashcroft v. Iqbal (collectively called “Twiqbal” by civil procedure geeks like myself) that together imposed a “plausibility” requirement for a lawsuit to survive a motion to dismiss. Twiqbal took a procedural rule that had long been understood to impose a very low bar to getting a case off the ground, and interpreted it to require more than a mere peek at the merits. Wal-Mart does for--or perhaps we might better say Wal-Mart does to--Rule 23, what Twiqbal did for/to Rule 8.

Yet the move in Wal-Mart is at least internally coherent in a way that the Twiqbal rule is not. Both rules require evaluation of the facts, but at least in the class action setting, a court will hear evidence before making the class certification decision. By contrast, under Twiqbal, a court is authorized to dismiss an implausible complaint without hearing any evidence whatsoever.  I don’t intend this observation as a defense of the majority position in Wal-Mart, just as an observation that it’s not as crazy as Twiqbal.  (I told you this would be faint praise.)

3) I don’t read anything in Wal-Mart as foreclosing smaller class actions attacking particular firm practices alleged to be sex discriminatory. If I were a plaintiffs’ lawyer, I might start by attacking Wal-Mart’s requirement that any Wal-Mart employee who wishes to be considered for a management position--including being manager of a single store--go through the company's management training program. To qualify for that program, an employee must have “an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate.” The plaintiffs cited the requirement that store managers be willing to relocate as evidence of the company's sexist culture. As the partial dissent characterized the argument, "there is a risk that managers" considering whom to promote into positions that feed into store manager positions "will act on the familiar assumption that women, because of their services to husband and children, are less mobile than men."

Perhaps, but I wonder whether a narrower suit, brought either as a class action or on an individual basis, might attack the willingness-to-relocate requirement directly. I haven't done the research, but I would not be surprised to learn that the "familiar assumption" that women are less mobile than men is, on average, true. If so, the requirement that applicants for promotion to store manager positions be willing to relocate would have a disparate impact based on sex, and could be challenged on that basis. Under Title VII, once plaintiffs have shown such a disparate impact, the burden would shift to Wal-Mart to offer evidence that the willingness to relocate is "job-related for the position in question and consistent with business necessity." I suppose it's possible that Wal-Mart could satisfy that burden by arguing that it wants all of its store managers available to move up the corporate ladder, but at least on the face of it, I have a hard time seeing why the willingness to relocate is important for the job of managing a store in which one already works, i.e., for a position that does not require relocation. Whether such a lawsuit would succeed or even be brought remains to be seen.