THE DEATH KNELL OF ISSUE CERTIFICATION AND WHY THAT MATTERS AFTER WAL-MART V. DUKES

This article begins by examining the effect of Dukes, detailing in Section I how the Court's pronouncement has been felt most acutely by class plaintiffs seeking to certify Rule 23(b)(3) classes. Section II explains why that is significant in light of the Court's most recent cases and orders. It profiles Comcast's unusual trip through the appellate process and offers two competing interpretations of the Court's opinion around which distinct camps at the lower court level have already coalesced. Neither camp, however, the Section argues, understands the disagreement between the majority and dissenting views in Comcast or the Court's other 2013 decision and orders. Section III concludes that when read in context, Comcast guts the controversial lower court practice of certifying discrete issues for class treatment. That matters because after Dukes, trying common issues has been the class counsel's most reliable tool navigating hostile Rule 23(b)(3) terrain.