In the much-watched Dukes v. Walmart, Walmart has advanced a deceptively compelling claim: Due process, Walmart says, guarantees it the right to mount a “full defense” based on “any relevant rebuttal evidence [Walmart] choose[s], including evidence that there was no discrimination against one or more members of the class.” Because Walmart cannot possibly present rebuttal evidence against each of the 1.5 million gender discrimination claims that form the Dukes class, the class action, Walmart concludes, is unconstitutional. The argument is not original to Walmart - it is a staple of the class action defense bar. What should originalists make of it? This article is the first to examine the historical record with that question in mind. And for class action defendants, the verdict is a bad one: Throughout the nineteenth century, it was thought that judicial discretion to limit, even cut off, defendants’ opportunities to present evidence was thoroughly consistent with due process. The origins of class action defendants’ conception of a fair hearing lie, instead, in the early twentieth century - during the Lochner era. There, the Court, in a line of cases forgotten or ignored by scholars, held that a party can’t be deprived of its property interests through a liability judgment without heightened procedural protections, including an opportunity to present all evidence supporting defenses to liability. This is the Lochner Court’s distinctive contribution to procedural due process. This article retraces the origins of that innovation - underscoring that class action defendants’ arguments are not originalist. They are Lochnerian.
Mark Moller, Class Action Defendants' New Lochnerism, 2012 Utah L. Rev. 319, 392 (2012)