Hogs Get Slaughtered at the Supreme Court

Class action plaintiffs lost two major five-to-four cases last Term. Both will potentially have a significant negative impact on future litigation. The tragedy is that the impact of each of these cases might well have been avoided had the plaintiffs' lawyers, the lower courts, and the dissenting Justices not overreached. In this article, Sherry shows that the losing side insisted on broad and untenable positions and thereby set itself up for an equally broad defeat. She examines the Supreme Court's rulings in AT&T Mobility LLC v Concepcion and in Wal-Mart Stores, Inc. v Dukes and argues that the cases will result in a ratcheting up of requirements for class certification and thus in fewer class actions, especially in the context of employment discrimination.