Dukes v. WalMart: Oral Argument Next Tuesday

Following on a torrent of amicus submissions that have made Dukes v. Wal-Mart, 603 F.3d. 571 (9th Cir.) (en banc), cert granted, 131 S. Ct. 795 (Dec. 6, 2010) (No. 10-277) perhaps the most extensively briefed case in Supreme Court history, the case is now set for oral argument next Tuesday, March 29, 2011. In concert with AT&T v. Concepcion (which takes up the validity of class action waivers), Dukes represents an opportunity for the Roberts Court to remake the rules applicable to class actions in federal courts.

Apart from taking up several discrete issues broadly relevant to nearly all class actions, Dukes is effectively a Rorschach test on class actions: Corporate interests see Rule 23 as merely a device for “greedy” plaintiffs’ firms (is there any other type?) to blackmail companies into paying attorneys’ fees, while consumer and employee rights advocates contend that class actions are a necessary corrective in the free market system.

While oral argument can be an unreliable indicator of Supreme Court outcomes, there are some tendencies to look out for during next Tuesday’s session. For instance, do Justices presumed to be unsympathetic to class actions (notably Scalia, Thomas, and Alito) appear swayed by class action supporters’ market-based arguments? Is a radical remaking of class action rules harmonious with a conservative Justice’s preference for stability and predictability? Likewise, oral argument will occasionally reveal signs of ideological drift on the Court’s liberal wing. Justice Breyer, for instance, while known as a member of the progressive bloc of the Court, was at the forefront of the movement to deregulate airfares during the 1970s. Here, one should look for indications that a Justice presumed to be supportive of class actions harbors any skepticism toward the large and varied class in Dukes.

As with any case where big-picture procedural issues are at stake, it is likely that behind-the-scenes negotiations will result in complex majority opinions and concurrences in both Dukes and Concepcion that may be difficult to reconstruct from the Justices’ public statements at oral argument. The suspense should end by late spring, when decisions in both cases are expected to be issued.