Previously posted on SSRN.

Abstract

Multidistrict litigation (MDL) includes some of the most high-profile torts of our day—opioids, talc, RoundUp, to name a few—but the attorneys who spearhead these proceedings often look a lot like they did fifty years ago: predominately white and predominately male.

A debate has emerged over whether attorneys best positioned to fill MDL leadership roles are the grizzled repeat players who appear time and again—and who are largely white, older, and male—or newcomers with fresh ideas and energy who may not always look like their predecessors. And if diversity is important, what kind of diversity matters?

In this short essay, I suggest that judges broaden their ideas about diversity to consider cognitive diversity--meaning different knowledge, skills, information, and tool kits. In selecting leaders, courts should consider conflicts of interest that are likely to emerge between plaintiffs and plaintiffs’ counsel, encourage dissent and the airing of minority viewpoints, and select leaders based on attorneys’ cognitive diversity.

To be sure, there are a number of MDLs in which normative claims about representation, fairness, and social legitimacy can make identity diversity among leaders key—mass torts over trans-vaginal mesh, Mirena, Yasmin/Yaz, Essure, NuvaRing, and OrthoEvra all come to mind. Gender can matter where gender itself is an issue as it is in those proceedings.

But identity diversity proponents often argue that diversity likewise improves outcomes. Here, studies are mixed, with some suggesting that when people perceive themselves as belonging to opposing groups, they may tune each other out and that those with privately held information may be less inclined to share it for fear of being mocked or socially ostracized. The evidence is more straightforward when researchers consider cognitive diversity. Cognitively diverse groups consistently see “bonuses” when group members perform disjunctive, nonroutine, thought-provoking tasks like brainstorming legal strategy or identifying which issues to appeal. And, as this essay explores, cognitive diversity and identity diversity can overlap.

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