Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Monday, November 18, 2013

Judge's Practice of Requiring Gender and Race Diversity for Class Counsel Questioned

The US Supreme Court denied cert in Martin v. Blessing challenging a settlement in the antitrust class action regarding the merger of satellite radio providers Sirrius and XM.  Justice Alito took the opportunity to chastise the trial judge in the case, Judge Harold Baer of the S.D. of New York for his "highly unusual practice" of requiring that lawyers for the class fairly represent the class in terms of race and gender. 

Alito wrote:

I am hardpressed to see any ground on which Judge Baer’s practice can be defended. This Court has often stressed that "[r]acial discrimination has no place in the courtroom, whether the proceeding is civil or criminal." . . . . Court approved discrimination based on gender is similarly objectionable, and therefore it is doubtful that the practice in question could survive a constitutional challenge.

Alito thought the judge's standard order meant that "if the class consisted of persons who had undergone treatment for breast cancer," the court would "favor firms with a high percentage of female lawyers.  Fair or proportional representativethough would require more like 95% women lawyers if the class of breast cancer patients was 95% women.   

And how would that work in this particular case?  Satellite radio listeners have mostly been older, white, rich men.

Judge Baer seems less concerned about matching characteristics of the lawyers and class, than with ensuring generalized racial and gender diversity of the counsel.  See Michael Hurwitz, Judge Harold Baer's Quixotic Crusadefor Class Counsel Diversity, 17 Cardozo J. L. & Gender 321 (2011)

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