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21 Emp. Rts. & Emp. Pol'y J. 75 (2017)
Justice Scalia and the Demise of the Employment Class Action

handle is hein.journals/emplrght21 and id is 75 raw text is: JUSTICE SCALIA AND THE DEMISE OF THE EMPLOYMENT CLASS ACTION BY STEVEN GREENBERGER* I. INTRODUCTION ..................................... .....75 II. JUSTICE SCALIA, MANDATORY ARBITRATION AND CLASS ACTION WAIVERS.................................77 III. JUSTICE SCALIA, WAL-MART, AND RULE 23 ...... .......88 IV. THE FUTURE OF EMPLOYMENT CLASS ACTIONS ...... ......99 V. CONCLUSION..............................................112 I. INTRODUCTION This year marks the semicentennial of the birth of the modern class action. That should be cause for celebration. With the 1966 amendment to Rule 23 of the Federal Rules of Civil Procedure, the possibility of using aggregate litigation to protect rights that otherwise might go unenforced was realized.' Provided that the requirements of Rule 23 are satisfied - chiefly that the claims of members of a class of persons share sufficient elements in common that joint adjudication will be efficient - those claims may be resolved together in a single proceeding.2 This was an enormous advance. For it meant that claims that previously were not economical to litigate singly could now be vindicated as part of a class action.3 The class action device proved transformative in many areas of the law, including employment law. Many of the important cases that changed the landscape of the workplace were brought as class actions.4 Recently, however, the class action device has been under * Associate Professor of Law, DePaul University College of Law. 1. FED. R. Civ. P. 23 advisory committee's note to 1966 amendment (describing purpose of new amendment to the Rule). See generally Benjamin Kaplan, Continuing Work on the Civil Committee: 1966 Amendments to the Federal Rules of Civil Procedure (I), 81 HARV. L. REV. 356 (1967) (discussing the old rule, its ambiguities, and the formulation of the amendments). 2. Fed. R. Civ. P. 23 advisory committee's note to 1966 amendment. 3. See generally, e.g., Linda S. Mullenix, Ending Class Actions as We Know Them: Rethinking the American Class Action, 64 EMORY L.J. 399, 401-02 (2014). 4. See, e.g., Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147 (1982); E. Tex. Motor Freight 75

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