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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.

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[Vol. 4

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