A Baer of Very Little Brain?

by Ed Whelan

With apologies to Winnie-the-Pooh fans for the title of this post, I’ll highlight this interesting statement by Justice Alito today (“respecting the denial of [a] petition for writ of certiorari”).

Alito calls attention to the “highly unusual practice” followed by federal district judge Harold Baer Jr. (of the Southern District of New York) in assessing the adequacy of counsel in class actions. Baer’s evident practice—one instance of which I discussed in this post from three years ago—is to ensure that the lawyers for class plaintiffs “fairly reflect the class composition in terms of relevant race and gender metrics.” (That quote is from a Baer order.)

Alito expresses himself “hard-pressed to see any ground on which Judge Baer’s practice can be defended.” Among other things, he points out that it “seems quite farfetched” to argue that the rule governing appointment of class counsel permits the judgment that “class counsel cannot fairly and adequately represent a class unless the race and gender of counsel mirror the demographics of the class.” He also gives examples of the “truly bizarre results” that would follow from such a practice. (See pp. 4-5.)

“When you are a Bear of Very Little Brain, and you Think of Things, you find sometimes that a Thing which seemed very Thingish inside you is quite different when it gets out into the open and has other people looking at it.” I don’t recall whether Winnie-the-Pooh said that about himself or whether it was said of him (the former, I think), but perhaps Alito’s discussion will help a different Baer to recognize that what evidently “seemed very Thingish inside” him is absurd.