The problem, Ted writes in the Examiner, isn’t that the class action is “too large” — even very large classes can sometimes fit the law’s requirements that each claim be identical in nature and capable of standing or falling together.

But the theory of the Dukes lawsuit is exactly the opposite: the plaintiffs claimed that Wal-Mart’s central office did not exercise enough authority over each of its 3,400 stores; each of the individual managers’ discretionary employment or promotion decisions–whether made by male or female managers–was, on average, discriminatory; and thus Wal-Mart was responsible for a policy that “fosters or facilitates” discrimination. …

The discrimination laws permit Wal-Mart to defend itself by demonstrating that the challenged job decision was made for a reason other than gender. For example, looking at Betty Dukes, the named plaintiff, alone, we learn that she had a female manager and that she was repeatedly disciplined for returning late from lunch breaks. …Wal-Mart is stripped of its defense because the individualized defense would be inconvenient to trying the case as a class action. …

If the Supreme Court rules in Wal-Mart’s favor later this year, it will not be to protect business, but to protect due process.

Filed under: class actions, Ted Frank, Wal-Mart v. Dukes