Balkinization

Wal-Mart v. Dukes and the future of meritocracy

Joseph Fishkin

First, a big thank you to Jack for inviting me to contribute to the blog.

The fulcrum of the 5-4 divide in Wal-Mart v. Dukes, which came down this morning, turned out to be the following question: was the plaintiffs’ case bolstered, or was it eviscerated, by the fact that Wal-Mart gave mid-level managers nearly unfettered discretion over whom to tap for promotions and what wages (within a range) to pay each employee? The majority today answered: it was eviscerated. This is a big change. In this post I’ll offer a couple of observations about where this change came from and what it might mean going forward.

First it is worth taking a step back. In 47 years, what has Title VII accomplished? In my view, it has worked not one, but two, major changes to the landscape of American employment. One change is the obvious one: Title VII brought some measure of racial and gender integration to the workforce. But a second, subtler change was in some ways equally profound. Title VII helped spur both public and private employers to replace subjective, non-meritocratic systems of hiring and promotion with systems that were fairer, more uniform, and more merit-based. Today it is hard to imagine, for example, a big-city police department deciding simply to hire only the sons and nephews of incumbent officers. But at one time such practices were common. What changed was that corporate leaders, HR professionals, public sector managers, and the many, many lawyers who advise all of these people learned that if one does not want to be accused of discrimination—and for that matter, if one does not want to discriminate—it helps, a lot, to adopt relatively rational, formalized, uniform, merit-based policies for hiring, performance evaluation, promotion, compensation, and termination. An employer that instead adopts policies of total subjectivity and discretion is needlessly painting a litigation target on its back, so why do it? Or so any competent employment lawyer would have advised, at least until this morning.

Is it still good advice? Probably. But Dukes raises the disquieting possibility that rather than inviting litigation, subjective and standardless policies might—for a large enough employer—have the perverse effect of insulating the employer from large-scale litigation by helping to defeat class certification. This possibility could have far-reaching effects on the landscape of American employment practices. We would only expect those far-reaching effects under certain conditions. Large employers would only have reason to switch (back) to more subjective, Wal-Mart-style employment practices if they valued a potential shield against class certification more highly than they valued either (a) the shield against individual discrimination lawsuits that more objective, meritocratic practices provide and (b) all the other salutary effects of more objective, meritocratic practices, which include having a workforce that is more qualified and more rationally compensated and promoted. (More after the jump.)

Labels: class actions, employment discrimination, implicit bias, Wal-Mart v. Dukes

Posted 3:07 AM by Joseph Fishkin [link] (13) comments

How Justice Marshall Affected the Court’s Deliberations Just by Sitting There

Susan Bandes

Much of the discussion sparked by the Sotomayor nomination has focused on whether race, gender and ethnicity should shape an individual judge’s jurisprudence. But a separate question has received little attention—how these attributes of individual judges affect the deliberative process. As I've argued in previous posts here and here, one value of the deliberative process is that it increases the odds that individual assumptions about how the world works will be subject to challenge, or at least that no judge will assume his or her own perspective is universal.

I was glad to see Adam Liptak’s article in today's New York Times focusing on the impact of diversity on the deliberative process. Liptak cites a study by Washington lawyer Jennifer Peresie concluding that the presence of a female judge on a three-judge panel in a sex discrimination or sexual harassment case significantly increased the likelihood that the male judges would find for the plaintiff. He also cites a study by Tom Miles and Adam Cox concluding that the presence of an African-American judge on a three-judge panel in a voting rights case significantly increased the likelihood that a white judge on the panel would find for the plaintiff. As Peresie cautioned, these findings about three-judge courts can’t simply be extrapolated to a nine-judge court (particularly the Supreme Court, which has a different set of institutional constraints). But they do point to the importance of examining how heterogeneity affects the deliberative body as a whole.

The literature on the dynamics of judicial deliberation is surprisingly sparse. Much of what we’re learning about the dynamics of deliberation in the legal context comes from the study of juries. (Speculatively, this may be because the very notion that judicial interpretation is influenced by background or life experience offends the conventional wisdom that the rule of law transcends individual interpretation). But these jury studies contain some fascinating findings about how racial composition affects the deliberative process.

Liptak quotes Justice Scalia observing about Justice Marshall in conference, “Marshall could be a persuasive force just by sitting there. He wouldn’t have to open his mouth to affect the nature of the conference and how seriously the conference would take matters of race.” A series of studies by Sam Sommers, a psychologist at Tufts (often in conjunction with Phoebe Ellsworth), help explain this dynamic. In one 2006 study (involving a mock jury) Sommers found, as expected, that heterogeneous groups deliberated longer and considered a wider range of information than did homogeneous groups. But this effect was not simply due to the contributions of the black participants. In fact, it occurred even when the black participants didn’t contribute to the discussion at all. “White participants were largely responsible for the influence of racial composition, as they raised more case facts, made fewer factual errors, and were more amenable to discussion of race-related issues when they were members of a diverse group.”

This effect seems to depend partly on the fact that the participants push themselves to formulate better arguments when they know they will have to justify them. But in addition, it reflects the fact that people generally try to correct for implicit attitudes of racial or gender bias when reminded to do so. A couple of the many questions for further study: How would the dynamics Sommers identified play out when other implicit biases are triggered—biases that people are not as motivated to avoid? How would the dynamics Cox and Miles and Peresie identified play out in cases in which race and gender played a role, but not as explicit a role? Perhaps the current national discussion will lead to more much-needed empirical work on the dynamics of judicial deliberation.

Labels: cognitive psychology, implicit bias, judicial deliberation, jury deliberation

Posted 3:27 PM by Susan Bandes [link]