Issue 7

Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks”

In Dukes v. Wal-Mart, the Ninth Circuit recently upheld the certification of the largest employment discrimination class in history, with more than 1.5 million women employees seeking over $1.5 billion in damages. A crucial piece of evidence supporting class certification came from a sociologist who testified that he performed a “social framework analysis” to evaluate Wal-Mart “against what social science research shows to be factors that create and sustain bias” and found the company wanting. As authority for introducing this analysis, the expert—and the Ninth Circuit—relied on our prior work introducing the concept of social framework to refer to the use of general social science research to provide a context for the determination of specific factual issues in litigation. In this article, we review and recast the procedures originally proposed for apprising juries of general research results to assist in resolving the case before them. We then apply these updated procedures to the expert testimony in Dukes v. Wal-Mart, which promises to be a template for future employment discrimination litigation.

Experience over the past 20 years has shown that that courts will typically allow general contextual information from social science research to be conveyed to the jury by expert witnesses rather than via instructions, as originally envisioned. Where this occurs, we believe it essential that courts limit expert testimony to a description of the findings of relevant and reliable research and of the methodologies that produced those findings, and preclude the witness from linking the general research findings to alleged policies and practices of a specific firm. The landmark class action of Dukes v. Wal-Mart illustrates the centrality of social framework evidence to modern employment litigation, as well as the need for courts to clarify and circumscribe the role of the experts who introduce them.

Doctrinal Feedback and (Un)Reasonable Care

The law frequently derives its content from the practices of the community it regulates. Examples are legion: Tort’s reasonable care standard demands that we all exercise the prudence of an “ordinary” person. Ambiguous contracts find meaning in the custom and usage of trade. The Fourth Amendment examines our collective expectations of privacy. And so on. This recourse to real-world circumstance has intuitive appeal, in that it helps courts resolve fact-dependent disputes and lends legitimacy to their judgments.

Yet real-world practice can depart from that which the law expects. For example, suppose a physician provides more-than-reasonable care—extra tests, unneeded procedures, etc.—so as to steer clear of tort liability’s considerable gray area. If other physicians follow suit, their precautions slowly but surely become the new legal norm, as the reasonable care standard dutifully absorbs the conduct of those it governs. Instead of discouraging wasteful practices, the law feeds them back into doctrine, making overcompliance into mere compliance and ratcheting up the standard of care. Overcautious physicians then have to do even more to steer clear of liability, and the cycle begins anew.

This Article provides a general model of this “doctrinal feedback” phenomenon and then applies it to medical malpractice, where tort’s reasonable care standard has caused an unhealthy and unappreciated feedback effect and has led the law to require an unreasonable level of care. In doing so, it reveals feedback’s surprisingly common formative factors and demonstrates its potential to skew legal norms in a variety of otherwise dissimilar fields.

(Over)Valuing Uniformity

Providing for the uniform interpretation of federal law has long been viewed as a primary goal of the federal court system, and the claimed need for uniformity has shaped the structure of the courts and the scope of their jurisdiction. For example, uniformity has been cited as grounds for broad federal question jurisdiction and for the creation of specialized federal courts. Most visibly, harmonizing interpretation of federal law has become an essential factor in the Supreme Court’s selection of cases for review; 70% of the Supreme Court’s docket is devoted to resolving disagreements over the meaning of federal law. 

This Article questions whether uniformity in and of itself has inherent value, and whether the benefits of eliminating moderate disuniformity in the interpretation of ambiguous federal statutes are worth the costs. Proponents of uniformity claim that divergent interpretations of federal law are unfair to litigants, undermine the legitimacy of federal law, create intolerable conflicts for interstate actors, and lead to forum shopping. The Article explores each argument in turn and finds none to be a compelling reason for federal courts to devote considerable time and resources to maintaining uniformity. For instance, litigants have no basis to claim they were treated unfairly when courts reach different conclusions about the meaning of an ambiguous statute as long as each interpretation is reasonable. Nor is the legitimacy of federal law called into question when judges disagree about the best way to fill gaps or resolve vague provisions in the statutes they construe. Indeed, the doctrine of Chevron deference recognizes, and even promotes, the possibility that ambiguous federal statutes can be construed in a variety of ways. Interstate actors are already required to comply with the varied legal regimes of the fifty states, so adjusting their conduct to accommodate divergent interpretations of federal law is not significantly more disruptive. And if forum shopping is truly a problem (which is questionable), a better solution might be to tighten venue rules rather than expend significant federal judicial resources on standardizing federal law. 

Furthermore, even in the relatively rare cases when uniformity is essential, the federal courts are not the ideal institution to provide it. Congress is responsible for enacting ambiguous laws that produce conflicting judicial interpretations, and Congress is better situated to determine when the benefits of uniformity outweigh the costs of achieving it. Accordingly, this Article contends that courts should avoid expending resources to standardize federal law, and should instead rely on Congress to legislate uniformity when needed.

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