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. Read More

Liability for Toxic Workplace Cultures

Title VII is meant to protect employees from discrimination and has historically been a crucial tool for creating social change in the workplace. But when considering modern-day workplace discrimination wrought by “toxic workplace cultures” defined herein, Title VII’s frameworks for confronting systemic discrimination prove outdated and ineffective. This Note proposes the codification of a new theory of discrimination under Title VII targeting toxic workplace cultures, with substantive and procedural elements working in tandem to better enable plaintiffs to collectively bring actions to hold employers accountable for fostering discriminatory environments. Part I defines toxic workplace cultures and walks through case studies of such cultures in action. Part II explains the existing frameworks of Title VII and why they do not provide recourse for victims of toxic workplace cultures. Part III proposes a solution through codifying a new cause of action for toxic workplace cultures under the statute and offers a brief case study highlighting a potential outcome were this proposal to be implemented. Read More

Sexual Orientation, Gender Identity, and Homelessness Post-Bostock

Housing discrimination on the basis of sexual orientation and gender identity is a critical problem facing LGBTQ+ people in the United States. In addition, LGBTQ+ people, particularly transgender people, disproportionately suffer from homelessness and face discrimination by homeless shelters on the basis of sexual orientation and gender identity. This homelessness and discrimination both disproportionately affect transgender people of color. This Note makes two contributions that would enable courts to grant meaningful relief in these contexts. First, it argues that “sex” in the Fair Housing Act includes sexual orientation and gender identity after the holding in Bostock v. Clayton County. Second, it argues that the Fair Housing Act applies to homeless shelters. These two arguments enable LGBTQ+ people to sue under the Fair Housing Act for the discrimination they experience in homeless shelters. Read More

The Good-Faith Doubt Test and the Revival of Joy Silk Bargaining Orders

The last fifty-two years have borne witness to the swift degradation and virtual irrelevance of the bargaining order. By the end of the twentieth century even pro-enforcement officials in the NLRB were acknowledging the difficulty of obtaining an enforceable bargaining order, and the remedy rarely appears these days in the agency’s published decisions. This is not the product of the usual economic or political factors cited as reasons for the labor movement’s and its attendant regulating schema’s diminishment. Rather, the decline of the bargaining order can be explained almost entirely by the disappearance of the so-called Joy Silk doctrine from the labor law landscape in 1969. Under Joy Silk, the NLRB would order an employer to recognize and bargain with a labor union if the union represented a majority of the employees in an appropriate bargaining unit at the time it requested recognition, and the employer denied the request while lacking a good faith doubt as to the union’s majority status and took action calculated to dissipate that majority status. Under closer examination, it has become clear that the NLRB’s abandonment of the good-faith doubt test in favor of the misconduct-centric analysis enunciated in Gissel Packing is intimately connected to the agency’s inability to enforce the law and, as a result, fulfill its statutory mission of encouraging collective bargaining. This Article addresses the primary objections to the NLRB’s use of the good-faith doubt test in the realm of union requests for recognition that were raised in its heyday and elucidates their lack of historical, legal, and practical foundations. The NLRB’s inquiry into motive in the pre-recognition context was statutorily permissible, logically consistent, and effectively deterrent. Reviving the good-faith doubt test of Joy Silk and enforcing Section 8(a)(5) of the NLRA as written would better encapsulate the bargaining orders envisioned in past Supreme Court precedent and equip the NLRB with a tool historically proven to prevent misconduct in elections. Read More

Shareholder Appraisal Rights: Delaware’s Flawed Market-Out Exception

Lynn Bai* and William A. Murphy* Abstract State statutes give dissenting shareholders an appraisal right in some, but not all corporate mergers. With varying specifics, a widely adopted market-out exception denies appraisal if the shares are publicly traded. The rationale for market-out is that the public market offers a… Read More