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It focuses on how Scalia’s interpretations of both the Federal Rules of Civil Procedure and, especially, the Federal Arbitration Act enabled corporations to avoid class-wide liability through arbitration contracts. The analysis reviews key Supreme Court opinions and evaluates whether the outcomes align with conservative free-market principles.",{"@graph":69,"@context":123},[70,84,106],{"@type":71,"itemListElement":72},"BreadcrumbList",[73,77,79,82],{"item":74,"name":75,"@type":76,"position":8},"https://docshare.wps.com","Home","ListItem",{"item":78,"name":9,"@type":76,"position":14},"https://docshare.wps.com/document/",{"item":80,"name":40,"@type":76,"position":81},"https://docshare.wps.com/document/research-report/",3,{"item":83,"name":65,"@type":76,"position":19},"https://docshare.wps.com/document/justice-scalia-and-class-actions-a-loving-critique/157140/",{"url":83,"name":65,"@type":85,"image":86,"author":91,"headline":65,"publisher":94,"fileFormat":97,"inLanguage":63,"description":67,"dateModified":98,"datePublished":99,"encodingFormat":97,"isAccessibleForFree":100,"interactionStatistic":101},"DigitalDocument",{"url":87,"@type":88,"width":89,"height":90},"https://docshare.wps.com/thumbnails/justice-scalia-and-class-actions-a-loving-critique/157140.png","ImageObject",300,407,{"name":92,"@type":93},"Aditya","Person",{"url":74,"name":95,"@type":96},"DocShare","Organization","application/pdf","2026-10-18","2026-08-29",true,{"@type":102,"interactionType":103,"userInteractionCount":105},"InteractionCounter",{"@type":104},"ViewAction",15,{"@type":107,"mainEntity":108},"FAQPage",[109,115,119],{"name":110,"@type":111,"acceptedAnswer":112},"Why does the essay focus on class action jurisprudence rather than Scalia’s constitutional-law work?","Question",{"text":113,"@type":114},"The author argues Scalia’s class action decisions leave some of the biggest marks, even though the Justice is more commonly linked to constitutional law.","Answer",{"name":116,"@type":111,"acceptedAnswer":117},"What does the essay identify as the main way Scalia undermined class actions?",{"text":118,"@type":114},"It emphasizes that Scalia’s interpretations of the Federal Arbitration Act enabled corporations to opt out of class-wide liability via arbitration contracts, making class aggregation harder.",{"name":120,"@type":111,"acceptedAnswer":121},"Which Supreme Court cases are highlighted in the essay?",{"text":122,"@type":114},"The essay reviews Scalia’s class action opinions, including those interpreting the Federal Rules (such as Wal-Mart v. Dukes and Comcast v. Behrend) and those interpreting the FAA (such as Italian Colors and Concepcion).","https://schema.org",{"og:url":83,"og:type":125,"og:title":65,"og:site_name":95,"og:description":67},"article",{"robots":127,"canonical":83},"index,follow",{"doc_id":129,"site_id":62},157140,1787974424,{"code":4,"msg":5,"data":132},{"doc_id":129,"user_id":133,"nickname":92,"user_avatar":134,"doc_module":4,"category_id":39,"category_name":40,"doc_title":65,"doc_description":67,"doc_content":135,"file_id":136,"file_url":137,"file_type":138,"file_size":139,"view_count":105,"is_deleted":4,"is_public":8,"is_downloadable":8,"audit_status":8,"page_count":46,"language":140,"language_code":63,"site_id":62,"html_lang":63,"table_of_contents":141,"faqs":142,"seo_title":143,"seo_description":67,"update_tm":130,"read_time":31,"preview_page_count":4},962085564549,"https://ap-avatar.wpscdn.com/davatar_085a072bc5b1113ac321206ff7593b45","JUSTICE SCALIA AND CLASS ACTIONS: A LOVING CRITIQUE  \nBrian T. Fitzpatrick*  \nINTRODUCTION  \nI have been asked to write an essay on Justice Scalia’s class action jurisprudence and although I suspect many readers will find this surprising because the Justice is so often linked to constitutional law, I actually think that his class action jurisprudence may be where his opinions leave some of the biggest marks. To be as blunt about it as the Justice himself would have been: for better or for worse, I am not sure any other Justice of the Supreme Court in American history has done more to hinder the class action lawsuit than Justice Scalia did.1  \nThe Justice did his damage not so much in his opinions interpreting the Federal Rules of Civil Procedure—there, his opinions gave both sides of the class action divide something to like—but in his opinions interpreting the Federal Arbitration Act (FAA) . Under the auspices of the FAA, the Justice authored two majority opinions giving a green light to corporations that want to opt out of class-wide liability entirely so long as they do so using arbitration contracts.2  \nI am one of the Justice’s biggest fans. But his FAA opinions are not my favorites of his opinions. As many commentators have noted, it is very hard to square these opinions with either the text or the history of the FAA.  \nFor these reasons, many commentators have assumed that Justice Scalia was more animated by his conservative ideological preferences in these cases  \n© 2017 Brian T. Fitzpatrick. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.  \n* Professor of Law, Vanderbilt University Law School. J.D., 2000, Harvard Law School. Law Clerk to Justice Scalia, 2001–2002. I am grateful to participants in this symposium for helpful comments and to Daniel Naydenov and Kasey Youngentob for helpful research assistance.  \n1 See Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. ILL. L. REV. 371, 390 (noting that Justice Scalia’s FAA decisions did more to undermine class actions than “even the most radical legislative proposals put forth by” Republican politicians) .  \n2 See Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2308, 2312 (2013); AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) .  \n1978 notre dame law review [vol. 92:5  \nthan to his fidelity to the original understanding of the text. That may be—although the Justice tried very hard to separate his personal views from his jurisprudential views, he was not superhuman—but, if it is what motivated these decisions, I am not sure the Justice got it right on this point either. On a superficial level, of course, conservatives tend to side with the interests of corporations and liberals with the interests of plaintiffs’ lawyers. But not always. There are plenty of times when conservative principles deviate from corporate interests. As I explain, I wonder if class action waivers should be one of these times. In my view, it is hard to see how the conservative (and, often, libertarian) free market principles that Justice Scalia and I shared suggest that corporations should be allowed to opt out of class action lawsuits.  \nIn Part I of this Essay, I review the Justice’s class action opinions; I give special emphasis to his opinions interpreting the FAA and explain why I think it is hard to square those decisions with either text or history. In Part II, I explain why I think even conservative and libertarian ideology may not be consistent with the Justice’s FAA opinions.  \nI.  \nJustice Scalia authored dozens of opinions in class action cases, but only six of these opinions—five opinions for the Court and one dissent—were about class actions.3 Four of these opinions interpreted the Federal R","cbCaimXQaQL3qw59","https://ap.wps.com/l/cbCaimXQaQL3qw59","pdf",92381,"English","# Introduction\n## Scalia’s impact on class actions\n# I. Scalia’s class action opinions\n## A. Cases interpreting the Federal Rules\n### 1. Wal-Mart Stores, Inc. v. Dukes\n### 2. Comcast Corp. v. Behrend\n### 3. Shady Grove Orthopedic Associates, P.A. v. Allstate\n### 4. Devlin v. Scardelletti\n## B. Cases interpreting the FAA\n### 1. American Express Co. v. Italian Colors Restaurant\n### 2. AT&T Mobility LLC v. Concepcion\n# II. Ideology and consistency with the FAA opinions","[{\"question\":\"Why does the essay focus on class action jurisprudence rather than Scalia’s constitutional-law work?\",\"answer\":\"The author argues Scalia’s class action decisions leave some of the biggest marks, even though the Justice is more commonly linked to constitutional law.\"},{\"question\":\"What does the essay identify as the main way Scalia undermined class actions?\",\"answer\":\"It emphasizes that Scalia’s interpretations of the Federal Arbitration Act enabled corporations to opt out of class-wide liability via arbitration contracts, making class aggregation harder.\"},{\"question\":\"Which Supreme Court cases are highlighted in the essay?\",\"answer\":\"The essay reviews Scalia’s class action opinions, including those interpreting the Federal Rules (such as Wal-Mart v. Dukes and Comcast v. Behrend) and those interpreting the FAA (such as Italian Colors and Concepcion).\"}]","Justice Scalia and Class Actions - A Loving Critique | PDF"]