“Common Problems for the Common Answers Test: Class Certification in Amgen and Comcast”

That is the name of this article by law professor Mark Moller. Here is the abstract:

Supreme Court’s 2011 decision, Wal-Mart Stores, Inc. v. Dukes, drew
heavily on the work of the late Professor Richard Nagareda. In a series
of seminal articles, Professor Nagareda urged courts to treat class
action procedure as a handmaiden to the substantive law — a tool to
enforce it, rather than a cover for altering it. Has the Court, since
Wal-Mart, taken Professor Nagareda’s advice? This article, published in
the Cato Institute’s review of the Supreme Court’s 2012-2013 term,
takes a look, with a focus on the Supreme Court’s two biggest
post-Wal-Mart class action decisions to date: Amgen Inc. v. Connecticut
Retirement Plans & Trust Funds and Comcast v. Behrend. It argues
that, while conforming to the letter of Professor Nagareda’s formulation
of the class certification test, each of these decisions violated the
spirit of his work. In each case, different majorities of the Court
used the class action procedure to pursue favored substantive projects
below-board, outside the usual constraints of substantive justification.

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