Against "Rough Justice" Part One: The Fidelity Imperative


In his recent article in the online magazine, Slate, Richard Thompson Ford discusses the key class action case, Wal-Mart v. Dukes, currently pending before the Supreme Court. Ford notes some of the problems of handling such an enormous number of claims as class actions. Under the Dukes trial plan, each class member’s entitlement to back pay will be determined by a mathematical model, without permitting Wal-Mart to challenge the merits of a particular class member’s claim.

Ford is okay with this because, in his view, “rough justice is better than no justice at all.” His rationale is revealing. He notes that proving individual discrimination is difficult and that “even if the statistics prove that Wal-Mart discriminated against a lot of women, very few would be able to prove they were one of them.”

Ford’s concern for “rough justice” is typical of advocates for procedures that aggregate many claims together for a single adjudication. Generally, these advocates worry about “false negatives” in civil litigation — the risk that a wrong will go unpunished rather than false positives — the risk that an innocent party will be forced to pay. While advocates of “rough justice” are right to worry that procedures should not be so cumbersome as to preclude legitimate claims, their proposed remedy is worse than the disease for several reasons. This post explores one of those reasons. Other reasons will addressed in future posts.

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