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4 L. A. Pub. Int. L.J. 1 (2013-2014)

handle is hein.journals/lapubinl4 and id is 1 raw text is: LOS ANGELES PUBLIC INTEREST LAW JOURNAL CIVIL RIGHTS COMMONALITY: DUKES' SEARCH FOR CENTRAL COMMON ANSWERS, § 1983 CLASS CLAIMS & GOVERNMENT REFORM Anna Deknatel* Abstract: Class action claims via 42 U.S.C. § 1983 offer a powerful mechanism to vindicate the mass violation of civil rights by state and municipal officials. Shifts in barriers to accessing this aggregate litigation tool can both limit the protection of Constitutional and federal rights, and also stymie reform the government entities, polices, and programs that have caused such harms. This paper considers the possibility that the Supreme Court's heightening of class certification's commonality requirement in Wal-Mart v. Dukes may have just such implications for § 1983 class claims, which have as of yet gone unexamined. I argue that the shilft in commonality possesses novel requirements not only for all injunctive relief classes, but also for § 1983 class claims brought against state defendants, due to the underlying legal character of § 1983. Prior to Dukes' holding, the Rule 23 (a)(2) commonality threshold demanded a precise question, common to the named plaintiff and the class members, but not one central to the resolution of the case. This changed with Dukes' search for a central common question able to resolve an issue at the heart of a class' claims. This article closely maps the non-rigorous application of this prior standard and how, applied to injunctive classes, the search had often been limited to ascertaining whether class-wide injury justified systemic relief. In light of that baseline, I then consider the first wave of federal district and appellate court applications of Dukes' commonality to § 1983 class litigation, focusing the Fifth and Seventh Circuits' rejections of certifications for deficient commonality. These cases demonstrate a closing gap between Rule 23 (a) and (b) requirements. I also argue § 1983 class claims against state defendants evidence a greater vulnerability to strengthened commonality, given the preexisting demand that § 1983 claims for municipal liability evidence a policy or custom at the heart of the common harm. 1 [Vol. 4

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