A hue and cry went up earlier this week in response to the Supreme Court’s decision in Walmart v. Dukes. In at least some respects, the outcry is justified. After Dukes, plaintiff groups who seek money damages for job discrimination under Title VII of the 1964 Civil Rights Act can join together only where they can, according to the Court in a memorable passage, point to some “glue” that binds together their allegations, such as discriminatory treatment by the “same supervisor.” The Court also took a broad (and likely fatal) swipe at the so-called “trial-by-statistics” approach in which the results of a series of mini-trials of a few representative class members are extrapolated to the broader population of plaintiffs. As many commentators have noted, the Dukes decision thus kills many large-scale job discrimination class actions.
In other respects, however, the attention the case has received is puzzling. The truth is that the job discrimination class action lost much of its vitality long ago. Compared to yesteryear, the 21st-century workplace is less hierarchical and less likely to be infected with overt forms of bias. Damages suits, some have argued, are particularly ill-suited to remedying “second generation” discrimination in which patterns of inequality result from “implicit” or “subconscious” forms of bias and often cannot be traced to particular decision-making nodes. Indeed, the Dukes plaintiffs, by linking local managerial discretion to broader statistical patterns, were part of a wider effort to adapt Title VII to these changing workplace realities. Few in the civil rights community thought courts—let alone the Supreme Court—would bless their approach.
Nor is Dukes even the most important job discrimination case of 2011. That honor arguably goes to AT&T Mobility LLC v. Concepcion, an April decision in which the Court appeared to sanction employer-compelled arbitration agreements that waive employees’ rights to assert class-based claims. After Concepcion, a large corporation like Walmart can, it seems, avoid class actions—even litigation altogether—with a simple stroke of the pen. Coming on the heels of Concepcion, it is not at all clear that Dukes shut down the class-action party so much as it quietly turned off the lights and closed the door.
Much of Dukes is a travesty, but we’ve been crying about the wrong thing. Going forward, the significance of Dukes is not only, or even primarily, its effect on job discrimination class actions, but rather its impact on the civil rights law firms that, for better or worse, are the central players in the current civil rights enforcement landscape. Post Dukes, class actions will become more expensive, riskier, and more difficult to bring to trial. This effect will be most keenly felt outside the job discrimination context, in other areas of civil rights enforcement and beyond, such as cases alleging mortgage fraud. To that extent, Dukes is best seen as the latest in a long line of decisions by the Court that, as my Stanford colleague, and Boston Review columnist, Pam Karlan has put it, has “disarmed the private attorney general.”
Karlan’s phraseology here is no accident. Some of the best recent scholarship on complex litigation regimes views private enforcement of federal law—whether Title VII or securities or antitrust—as a form of state capacity that, like a legislature’s delegation of enforcement authority to a “public” attorney general or administrative agency, is the product of conscious legislative design. This line of scholarship has also shown that private enforcement capacity is highly manipulable: relatively small shifts in incentives—whether the result of decisions by Congress, agencies with litigation oversight authority, or courts—can and often do have a large effect on the availability and sophistication of private counsel as well as the types of cases they bring. As a result, we can think of the small and often quite sophisticated law firms that specialize in civil rights litigation as part of a network of deputized private enforcers buffeted by a range of external forces that constantly shape and reshape their actions.
Viewed in this light, the reason Dukes matters should be obvious. By narrowing the types of legal tools private enforcers can bring to bear in civil rights and other cases, decisions such as Dukes discourage private enforcement of public law and, over time, will surely shrink the network of capable private civil rights enforcers. This is especially significant because civil rights law firms tend to litigate a wide range of civil rights cases beyond job discrimination, including those targeting police brutality as well as discrimination in housing, lending, and public accommodations. Some of these cases are class actions, but many more are hard-fought litigation campaigns pitting individual aggrieved plaintiffs against recalcitrant defendants. Winning both kinds of cases requires significant capital, both human and financial. By making class-action cases harder to bring, Dukes threatens to shift the playing field for all types of civil rights cases, class action or otherwise, by degrading overall private enforcement capacity.
Moreover, it is doubtful that public enforcement will fill any enforcement gaps that open up in Dukes’s wake. One study found that lawyers at the Department of Justice and various federal agencies, including the Equal Employment Opportunity Commission, are more likely to bring relatively small and uncontroversial civil rights cases. In particular both DOJ and the EEOC have been stingy in invoking their authority to bring so-called “pattern or practice” suits under Title VII. Perhaps Dukes will create political pressure for a more expansive public enforcement role, but don’t bet on it. The disarming of the private attorney general has come in an era of divided government and rising fiscal austerity that makes a public enforcement solution unlikely. For good or ill, vindication of civil rights will depend on private lawyers. After Dukes, they will have fewer weapons in their arsenal.
