Sexuality and Civil Rights: Re-Imagining Anti-Discrimination Laws

In this essay, I first describe the origins and current status of anti-discrimination laws that cover sexual orientation and/or gender identity. I examine the debates over whether existing laws are underutilized, and I analyze the variations in the structures of state and local laws that contribute to an unevenness in the patterns of utilization. These factors suggest that even persons living in states or local jurisdictions that already have anti-discrimination laws may lack meaningful mechanisms for redress. Part two raises the ante in my exploration of the relationship between sexuality and civil rights laws by asking whether there are ways that the civil rights concept itself may fall short of addressing the kinds of discrimination that LGBT persons experience. I approach this question by inviting readers to engage in a thought experiment of designing anti-discrimination laws around the experiences of persons who suffer sexuality-linked discrimination, rather than trying to shoehorn those life experiences into a standard anti-discrimination model. I conclude that there are points of friction between sexuality and civil rights that bubble beneath the surface of advocates\u27 longstanding efforts to fold sexual orientation into the civil rights model

The Case Against Constitutionalized Commonality Standards for Collective Civil Litigation

It is no secret that the current Supreme Court is hostile to class actions and other forms of group litigation. One area that has received considerable attention from the Court is the requirement that there [be] questions of law or fact common to the class, and, in most class action suits for damages, that common questions of law or fact . .. predominate over any questions affecting only individual members. In Wal-Mart Stores, Inc. v. Dukes, the Court held that, under the statutory burdens of proof in Title VII, an employer is entitled to individualized determinations before backpay can be awarded. The Court further disparaged judicial efforts to facilitate such class suits as Trial by Formula. This year, the Court further indicated its skepticism of claims to commonality in Comcast Corp. v. Behrend

Coattail Class Actions: Reflections on Microsoft, Tobacco, and the Mixing of Public and Private Lawyering in Mass Litigation

Ask anyone who follows legal news to name the two biggest litigation news stories in the United States at the start of the twenty-first century, and they will answer without blinking: Microsoft and tobacco. The Microsoft litigation, they will tell you, claims a place in the pantheon of antitrust landmarks that includes Standard Oil, Alcoa, and AT&T. The tobacco litigation is the most massive in a string of mass torts including asbestos, Dalkon Shield, and breast implants; it is arguably the most important public health matter ever litigated. Microsoft and tobacco each fit so well and so interestingly in their own line of antitrust or product liability cases that it would be easy to miss what the two stories have in common. The Microsoft and tobacco litigations each involve allegations of wrongful conduct causing widespread harm, committed by actors so powerful they seemed immune to attack by private litigants. In each case, government lawsuits broke down the barriers to successful litigation, and private litigants, particularly those pursuing class actions, rode the government\u27s coattails. This pattern is not limited to tobacco and Microsoft, nor is it new; in antitrust, securities, civil rights, and consumer fraud litigation, private plaintiffs have been riding government coattails for years. This Article examines coattail class actions and related developments in Microsoft, tobacco, and other recent litigation involving widespread harm. It does not address whether the government entities and private plaintiffs have valid claims in the Microsoft and tobacco cases, nor does it consider whether the underlying substantive law itself is just or wise. For purposes of this discussion, my interest in these cases is not to enter the raging debate over the legal and factual issues in them,9 but rather to look at whether their procedural structure of interdependent public and private actions offers a sensible model for the resolution of claims of widespread harm. Part One looks at the Microsoft antitrust litigation and the tobacco litigation as illustrations of the relationship between government litigation and subsequent class actions. Part Two examines two related developments that mix public and private lawyer roles: the use of private litigators to prosecute government lawsuits, and the nature of recent government recoupment actions. Part Three considers the differences between government lawyers, who owe duties to government entities and face largely political incentives, and class action lawyers, who owe duties to the class and face largely fee-based incentives. With the idea that government lawsuits and private class actions serve different purposes even when targeted at the same conduct, I turn to several specific implications. Part Four looks at implications for government suits. I suggest that government lawyers should consider the issue preclusive value of adjudications, the public value of discovered information, and the impact of settlement agreements that compromise private litigants\u27 remedies or procedural mechanisms. I also suggest that contingent fees are generally inappropriate for government retention of private litigators. Part Five turns to implications for coattail class actions themselves. I contend that while prior government litigation does not render a class action illegitimate, the government action does matter for the outcome of the coattail class action. Prior government litigation substantially increases the likelihood of successful prosecution of the class action, but in some cases it should reduce the likelihood or amount of punitive damages, as well as the amount of legal fees awarded to class counsel. While much of what I discuss in this Article is equally true of individual lawsuits that piggyback on government litigation, I focus on class actions because as representative litigation they share an essential attribute of government actions, and thus present most starkly the question of who should represent the interests of injured citizens in litigation: government officials or class representatives and class counsel

Understanding New Hampshire’s Rule 4.2 as Applied to Corporate Litigants: An Explanation and Suggestions for Improvement

[Excerpt] “Consider this scenario: an attorney represents a client in litigation against a corporation. The attorney gets a call from an employee of that corporation and the employee says, “Everything in your complaint is absolutely correct.” However excited the attorney is to speak with this person, the Rules of Professional Conduct constrain whom the attorney can talk to if a corporation is involved in the pending litigation. In New Hampshire, any attorney can quickly find that Rule 4.2 prohibits contact with a represented party.1 But is this corporate employee a represented party? Even after reading the comment to the rule and the sparse interpretive case law available in New Hampshire, the attorney would be unable to discern whether it is proper to speak with this person, who could possibly make or break his or her case. […] This article clarifies New Hampshire’s Rule 4.2 in relation to corporate litigants and establishes a few basic concepts gleaned by reviewing different jurisdictional interpretations of the rule. This article begins with background information regarding Rule 4.2 followed by a brief explanation of both the 2001 version of the ABA Model Rule 4.2 and the New Hampshire Rule 4.2.4 In particular, this article focuses on the difference between the comments of each rule. Next, this article surveys tests other jurisdictions have formulated to interpret the scope of Rule 4.2 as applied to corporate litigants and analyzes the likelihood of the New Hampshire Supreme Court adopting each test. This article then examines the 2003 version of the ABA Model Rule 4.2 and explains the origin of the rule and the scope of this rule when applied to a corporate litigant. The author then proposes a rule for New Hampshire that is easy to apply and narrowly tailored to fulfill its purpose. This article concludes that New Hampshire should adopt this modified version of the 2003 Model ABA Rule, which clarifies who is covered under the ambit of the rule when applied to corporate litigants.