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.