Driving Diverse Representation of Diverse Classes

Why have federal courts overwhelmingly appointed white men to represent diverse consumer classes? Rule 23(g) of the Federal Rules of Civil Procedure requires courts to appoint the attorneys “best able to represent the interests of class members” to serve as class counsel. But courts’ recurrent conclusion that white men best fit the federally mandated job description not only gives the appearance of discrimination, but harms class members that suffer from outcomes plagued by groupthink and cognitive biases. This Article sets out to uncover why white male repeat players continue to dominate class counsel appointments and proposes a practical and immediately implementable solution for the judiciary to improve class counsel diversity. The Article examines all class action auto defect multidistrict litigation suits. By focusing on this subset of cases that span across five decades, it observes potential tendencies of certain courts (i.e., white, Republican-appointed, and female courts) to appoint white men and identifies different processes and criteria courts have implemented and considered that have resulted in the appointment of more female and minority attorneys. The Article finds, however, that the gender and racial gaps remain stark, largely because courts understandably place an almost dispositive value on attorneys’ prior experience serving as class counsel, a role white men have traditionally monopolized. It proposes a way to resolve this Catch-22 problem—a two-tier joint appointment structure that collectively evaluates the experience and diversity of counsel and removes the insurmountable entry barriers to the plaintiffs’ counsel class action bar

The Class Counsel Draft Gender Gap: An Analysis of Class Counsel Applicants

This Article accomplishes three important and distinct objectives. First, it provides an updated window into the class counsel gender gap. Second, and most critically, it analyzes a to date unexamined data point—MDL class counsel applications. And third, based on its analysis of the data gathered, it demonstrates: (1) female class counsel application rates are correlated with appointment rates and (2) gender equal class counsel applicants’ success rate, suggesting courts are not discriminating against female class counsel applicants. Instead, the class counsel gender gap appears to be a product of the class counsel draft gender gap. To narrow the gap, more women must apply to represent class members. But female candidates must be qualified and meet Rule 23(g)’s adequacy requirements, and they cannot easily attain the experience and financial resources required under the Rule without the class counsel bar’s investment and endorsement. In the recent past, the bar has been motivated by courts’ vocal efforts to appoint diverse candidates, but with courts’ diversity efforts in Constitutional jeopardy, the bar’s incentives to train, retain, and sponsor female candidates will likely decrease. It is up to the class counsel bar now to recognize, as several courts have, the many benefits gender-diverse representation affords class members and class counsel, whose ultimate financial success is tied to the success of the class

Inadequate Adequacy?: Empirical Studies on Class Member Preferences of Class Counsel

Class members to date have been completely sidelined in class litigation. Representational notice is one way to provide them with a voice and a seat at the table (albeit a distant one). However, we note that expressing unmandated preferences does not solve the agency problem that exists in these actions, nor does it guarantee that class counsel is necessarily operating in class members’ best interests during the course of the litigation or in any settlement, even armed with useful ex ante information. Much is left to be explored as to whether class members are satisfied with the representation they received or the results achieved after the culmination of the litigation. Gaining greater insight into class members’ interests, needs, and preferences narrows agency problems that have plagued class actions and would steer such litigation towards being what at its roots it was meant to be—representationa

Judging Offensiveness: A Rubric for Privacy Torts

How do we judge whether a violation of someone's privacy is offensive? Currently, U.S. tort law requires privacy violations be "highly offensive to a reasonable person" to afford redress. However, our research reveals that there is no effective analysis--or rhyme or reason--to determine what conduct, disclosure, or implication is offensive. Our review of hundreds of privacy tort cases concludes that the ambiguity of the offensiveness prong has created opportunity for both significant legal errors and thriving biases, which often lead to discriminatory and neglectful treatment of women, racial minorities, and other marginalized groups. This is particularly alarming because the offensiveness analysis figures prominently in not only the most consequential privacy-related cases of our day, including data collection, geolocation tracking, revenge porn, sexual harassment, and transgender bathroom access, but also in corporate boardrooms, universities and schools, and policymaking bodies. This Article argues that we must develop a systematic mechanism to judge offensiveness, if the concept is to continue as a gatekeeper for privacy violations. Despite the concept's social significance and pervasiveness, alarmingly few legal scholars have written about offensiveness vis-a-vis privacy and its effects in entrenching social privilege and questionable norms. This Article seeks to fill this gap in privacy law with a view towards informing legal reform (including the upcoming Restatement (Third) of Torts) and providing guidelines for an unbiased analysis for judges and other decision-makers who must increasingly decide whether an alleged invasion of privacy is offensive. Guided by social science and philosophy, the Article proposes a factor-based rubric to guide decision-makers in determining whether conduct or content is highly offensive in the privacy context

Deconstructing Fallacies in Products Liability Law to Provide a Remedy for Economic Loss

For years, products liability law has failed to provide a remedy for consumers who suffer financial injury as a result of purchasing defective products manufacturers place and keep in the marketplace. The economic loss rule and defect manifestation requirements have, to date, foreclosed products liability claims when consumers suffer only economic injury and severely hampered recovery through other claims. Prior discussion of consumer economic loss litigation has been critical and embraced the necessity of the injury-based economic loss rule and defect manifestation requirements to protect manufacturers from perceived endless liability. While a few scholars have addressed some of the deficiencies behind the economic loss rule, this article builds on those discussions, addressing for the first time the flawed rationales behind defect manifestation requirements, and deconstructs in detail the outdated and flawed assumptions or fallacies upon which the rationales behind both doctrines are based. After deconstructing and exposing the, at best, questionable assumptions behind the economic loss rule and defect manifestation requirements, the article advocates a novel expansion of products liability law that provides a remedy for consumer economic loss caused by dangerously defective products. This proposed framework provides the proper demarcation between contract and tort, is consistent with earlier justifications eliminating privity and negligence, better aligns consumer safety with manufacturers' economic interests, bridges the current liability gap, and streamlines existing litigation

The Class Action Megaphone Empowering Class Members with an Empirical Voice

Class actions are plagued by poor communication between class counsel and the masses of unnamed class members. In this Essay, Professors Alissa del Riego and Joseph Avery propose that these barriers be overcome by using the new technical capabilities of artificial intelligence, and by adding an express duty to communicate to the Federal Rules of Civil Procedure

Inadequate Adequacy?: Empirical Studies on Class Member Preferences of Class Counsel

Class members to date have been completely sidelined in class litigation. Representational notice is one way to provide them with a voice and a seat at the table (albeit a distant one). However, we note that expressing unmandated preferences does not solve the agency problem that exists in these actions, nor does it guarantee that class counsel is necessarily operating in class members’ best interests during the course of the litigation or in any settlement, even armed with useful ex ante information. Much is left to be explored as to whether class members are satisfied with the representation they received or the results achieved after the culmination of the litigation. Gaining greater insight into class members’ interests, needs, and preferences narrows agency problems that have plagued class actions and would steer such litigation towards being what at its roots it was meant to be—representational

Inadequate Adequacy?: Empirical Studies on Class Member Preferences of Class Counsel

Class members to date have been completely sidelined in class litigation. Representational notice is one way to provide them with a voice and a seat at the table (albeit a distant one). However, we note that expressing unmandated preferences does not solve the agency problem that exists in these actions, nor does it guarantee that class counsel is necessarily operating in class members’ best interests during the course of the litigation or in any settlement, even armed with useful ex ante information. Much is left to be explored as to whether class members are satisfied with the representation they received or the results achieved after the culmination of the litigation. Gaining greater insight into class members’ interests, needs, and preferences narrows agency problems that have plagued class actions and would steer such litigation towards being what at its roots it was meant to be—representationa

ChatGPT, Esq.: Recasting Unauthorized Practice of Law in the Era of Generative AI

In March of 2023, OpenAI released GPT-4, an autoregressive language model that uses deep learning to produce text. GPT-4 has unprecedented ability to practice law: drafting briefs and memos, plotting litigation strategy, and providing general legal advice. However, scholars and practitioners have yet to unpack the implications of large language models, such as GPT-4, for long-standing bar association rules on the unauthorized practice of law ("UPL"). The intersection of large language models with UPL raises manifold issues, including those pertaining to important and developing jurisprudence on free speech, antitrust, occupational licensing, and the inherent-powers doctrine. How the intersection is navigated, moreover, is of vital importance in the durative struggle for access to justice, and low-income individuals will be disproportionately impacted. In this Article, we offer a recommendation that is both attuned to technological advances and avoids the extremes that have characterized the past decades of the UPL debate. Rather than abandon UPL rules, and rather than leave them undisturbed, we propose that they be recast as primarily regulation of entity-type claims. Through this recasting, bar associations can retain their role as the ultimate determiners of "lawyer" and "attorney" classifications while allowing nonlawyers, including the AI-powered entities that have emerged in recent years, to provide legal services--save for a narrow and clearly defined subset. Although this recommendation is novel, it is easy to implement, comes with few downsides, and would further the twin UPL aims of competency and ethicality better than traditional UPL enforcement. Legal technology companies would be freed from operating in a legal gray area; states would no longer have to create elaborate UPL-avoiding mechanisms, such as Utah's "legal sandbox"; consumers--both individuals and companies--would benefit from better and cheaper legal services; and the dismantling of access-to-justice barriers would finally be possible. Moreover, the clouds of free speech and antitrust challenges that are massing above current UPL rules would dissipate, and bar associations would be able to focus on fulfilling their already established UPL-related aims