William B. Rubenstein

Sidley Austin Professor of Law

Biography

William Rubenstein is the Sidley Austin Professor of Law at Harvard Law School where he teaches and writes primarily about complex litigation.

Professor Rubenstein is the author, co-author, or editor of four books and more than a dozen scholarly articles, as well as dozens of shorter publications, most of which concern complex litigation. Since 2008, Professor Rubenstein has been the sole author of Newberg on Class Actions and he is in the process of re-writing the entire 11-volume treatise for its Fifth Edition.  He has litigated, consulted, and regularly serves as an expert witness in, class action lawsuits. 

Professor Rubenstein was a practicing lawyer for nearly a decade before becoming a law professor.  After graduating from Yale College (magna cum laude, 1982) and Harvard Law School (magna cum laude, 1986), Professor Rubenstein clerked for the Hon. Stanley Sporkin in the U.S. District Court for the District of Columbia. He was then awarded a Harvard Fellowship in Public Interest Law to help start an AIDS Project at the national office of the American Civil Liberties Union. Professor Rubenstein was a Staff Attorney with the ACLU’s National LGBT and AIDS Projects from 1987-1990 and Director of those Projects from 1990-1995. In those capacities, he litigated civil rights cases in state and federal courts throughout the country and oversaw the ACLU’s national litigation docket on these issues. Professor Rubenstein argued the landmark case, Braschi v. Stahl Associates, 544 N.E.2d 49 (N.Y. 1989), before New York’s highest court, yielding the first decision in the United States recognizing a gay couple as a legal family.

While practicing at the ACLU, Professor Rubenstein also taught courses on sexual orientation and AIDS law at Harvard and Yale Law Schools. In conjunction with those courses, he authored the first law school casebook in the area, now entitled, Cases and Materials on Sexual Orientation and The Law (now with Carlos Ball and Jane Schacter, 4th ed. 2011).

From 1995-1997, Professor Rubenstein was a visiting professor from practice at Stanford Law School; he was awarded the 1996-1997 John Bingham Hurlbut Award for Excellence in Teaching at Stanford Law School. From 1997-2007, Professor Rubenstein taught at UCLA School of Law; he was awarded the 2001-2002 Rutter Award for Excellence in Teaching at UCLA. While at UCLA, Professor Rubenstein founded the Williams Institute on Sexual Orientation Law and Public Policy. Professor Rubenstein joined the Harvard faculty in 2007; he was awarded the 2011-2012 Albert M. Sacks-Paul A. Freund Award for Teaching Excellence at Harvard Law School.

Professor Rubenstein is originally from Pittsburgh, Pennsylvania and currently resides in Cambridge, Massachusetts.

Areas of Interest

Morris A. Ratner & William B. Rubenstein, Profit for Costs, 63 DePaul L. Rev. 587 (2014).
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
Abstract
Courts reward attorneys for investing time in class action lawsuits more generously than they reward them for investing money in the costs of those suits. Class counsel may directly profit on time investments in two ways: by billing lawyers at market rates though paying those lawyers less and by receiving multiplied fee awards. Those same attorneys in those same situations may also recover their costs but courts may not — or at least do not — permit the attorneys either to mark up their costs or to receive cost multipliers. As cost profits are rarely even debated, there is no good defense of why they are unavailable, but one assumes that courts are less comfortable awarding attorneys a markup on their copying machine than they are for their legal work. The assumption that costs cannot be directly profitable appears therefore to belittle costs, relegating them to a secondary position in the fee and cost award analysis and treating them as something of a tagalong or afterthought. Our goal in this Article is to give costs their due. We describe current jurisprudence, demonstrating how, given a choice between investing profitable time or reimbursable costs, profit-maximizing attorneys will find time investment more attractive than cost investment. We then explore the effects of this bias, showing that because cost investments are not directly rewarded, profit-maximizing attorneys will predictably (1) avoid certain cases; (2) select suboptimal modes of proceeding within cases they do bring; and then (3) settle those cases prematurely. Assuming that conclusion is unfortunate, we consider and propose mechanisms for remedying it. While our proposals are initial and therefore tentative, our commitment to the project of centering costs is not: it is grounded in the belief that the legal system’s anti-cost-investment bias impedes access to justice for individuals whose claims can be established only with substantial cost investments by entrepreneurial lawyers. Centering costs — and considering measures as conventionally discouraged as permitting third parties to profit from cost investments — has the potential to serve a larger public good.
William B. Rubenstein, Procedure and Society: An Essay for Steve Yeazell, 61 UCLA L. Rev. Discourse 136 (2013).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Litigation & Settlement
,
Class Action Litigation
,
Biography & Tribute
Type: Article
Abstract
Stephen Yeazell’s pathbreaking study of the history of group litigation revealed how disparate societies have shaped the rules of group litigation to meet their own needs. Professor Yeazell thereby demonstrated that procedural rules are socially contingent rather than universal in nature. In this Essay honoring Steve, I transform that lesson into a new approach to joinder rules. Specifically, I argue that if joinder rules arise out of specific social situations, then the simplest approach to joinder is to adopt a default rule calling for the shape of litigation to reflect the shape of the social activity that gave rise to the litigation. Labeling this concept “social loyalty,” I argue that it provides a new way of identifying what cases ought to be adjudicated in the aggregate and a new defense of their aggregation.
William B. Rubenstein, Newberg on Class Actions (West 5th ed. 2011). (Kept up to date by pocket parts.)
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Book
Abstract
Cited as persuasive authority in more than 600 federal and state court decisions, Newberg on Class Actions provides comprehensive, step-by-step coverage from pretrial through final resolution. The text focuses on the benefits of the class action, particularly in achieving judicial economy and in providing court access to small claimants who would otherwise be without judicial remedy. Newberg discusses fundamental characteristics, evolving controversies, and applying a theoretical framework to various areas of the law. It examines strategy, technique, agreements and settlements, torts, fees, constitutionality, and damages, and provides detailed analysis of various types of class actions involving: Antitrust Bankruptcy Consumer credit and fraud Intellectual property Shareholder derivative suits And more
Carlos A. Ball, Jane S. Schacter, Douglas NeJaime & William B. Rubenstein, Cases and Materials on Sexuality, Gender Identity, and the Law (West Acad. Pub. 6th ed. 2016).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
LGBTQ Rights Law
Type: Book
Abstract
This casebook on the law of sexual orientation and gender identity weaves interdisciplinary perspectives into the up-to-date coverage of a rapidly changing legal landscape. It provides comprehensive coverage of the range of legal issues concerning LGBT persons, along with scholarly commentary on these issues. It also covers issues of sexuality and gender more broadly. It addresses in depth many significant recent developments, including the Supreme Court's landmark decisions on marriage equality in Obergefell and Windsor, and the growing set of religious liberty claims asserted by opponents of LGBT equality measures. Gender identity issues are covered throughout the book.
William B. Rubenstein, Shedding Light on Outcomes in Class Actions, in Confidentiality, Transparency, and the U.S. Civil Justice System 20 (Joseph W. Doherty, Robert T. Reville & Laura Zakaras eds., Oxford Univ. Press 2012).
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Book
William B. Rubenstein, Supreme Court Round-Up: Part II, 5 Class Action Att'y Fee Dig., Sept. 2011, at 331.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Supreme Court Round-Up: Part I, 5 Class Action Att'y Fee Dig., July-Aug. 2011, at 263.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Class Action Fee Award Procedures, 5 Class Action Att'y Fee Dig., Jan. 2011, at 3.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Benefits of Class Action Lawsuits, 4 Class Action Att'y Fee Dig., Nov. 2010, at 423.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Contingent Fees for Representing the Government: Developments in California Law, 4 Class Action Att'y Fee Dig., Sept. 2010, at 335.
Categories:
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Class Action Litigation
,
Courts
,
State & Local Government
Type: Article
William B. Rubenstein, Supreme Court Round-Up, 4 Class Action Att'y Fee Dig., July 2010, at 251.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, SCOTUS Okays Performance Enhancements in Federal Fee Shifting Cases – At Least In Principle, 4 Class Action Att'y Fee Dig., Apr. 2010, at 135.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, The Puzzling Persistence of the “Mega-Fund” Concept, 4 Class Action Att'y Fee Dig., Feb. 2010, at 39.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, 2009: Class Action Fee Awards Go Out With A Bang, Not A Whimper, 3 Class Action Att'y Fee Dig., Dec. 2009, at 483.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Privatizing Government Litigation: Do Campaign Contributors Have an Inside Track?, 3 Class Action Att'y Fee Dig., Oct. 2009, at 407.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Supreme Court Preview, 3 Class Action Att'y Fee Dig., Aug. 2009, at 307.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Supreme Court Round-Up, 3 Class Action Att'y Fee Dig., July 2009, at 259.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, What We Now Know About How Lead Plaintiffs Select Lead Counsel (And Hence Who Gets Attorneys Fees!) in Securities Cases, 3 Class Action Att'y Fee Dig., June 2009, at 219.
Categories:
Civil Practice & Procedure
,
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
Class Action Litigation
Type: Article
William B. Rubenstein, Beware Of Ex Ante IncentIve Award Agreements, 3 Class Action Att'y Fee Dig., May 2009, at 175.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, On What a “Common Benefit Fee” Is, Is Not, and Should Be, 3 Class Action Att'y Fee Dig., Mar. 2009, at 87.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, 2009: Emerging Issues in Class Action Fee Awards, 3 Class Action Att'y Fee Dig., Jan. 2009, at 3.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, 2008: The Year in Class Action Fee Awards, 2 Class Action Att'y Fee Dig., Dec. 2008, at 465.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, The Largest Fee Award - Ever!, 2 Class Action Att'y Fee Dig., Sept. 2008, at 337.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Why Are Fee Reductions Always 50%?: On The Imprecision of Sanctions for Imprecise Fee Submissions, 2 Class Action Att'y Fee Dig., Aug. 2008, at 295.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Supreme Court Round-Up, 2 Class Action Att'y Fee Dig., July 2008, at 257.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Fee-Shifting For Wrongful Removals: A Developing Trend?, 2 Class Action Att'y Fee Dig., May 2008, at 177.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, You Cut, I Choose: (Two Recent Decisions About) Allocating Fees Among Class Counsel, 2 Class Action Att'y Fee Dig., Apr. 2008, at 137.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Why The Percentage Method?, 2 Class Action Att'y Fee Dig., Mar. 2008, at 93.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Reasonable Rates: Time to Reload The (Laffey) Matrix, 2 Class Action Att'y Fee Dig., Feb. 2008, at 47.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, The "Lodestar Percentage": A New Concept For Fee Decisions?, 2 Class Action Att'y Fee Dig., Jan. 2008, at 3.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Class Action Practice Today: An Overview, A.B.A. Sec. Litig., Class Actions Today, 2008, at 4.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, The American Law Institute's New Approach to Class Action Objectors' Attorneys Fees, 1 Class Action Att'y Fee Dig., Nov. 2007, at 347.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, The American Law Institute's New Approach to Class Action Attorneys Fees, 1 Class Action Att'y Fees Dig., Oct. 2007, at 307.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, "The Lawyers Got More Than The Class Did!": Is It Necessarily Problematic When Attorneys Fees Exceed Class Compensation?, 1 Class Action Att'y Fee Dig., Aug. 2007, at 233.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Supreme Court Round-Up, 1 Class Action Att'y Fee Dig., July 2007, at 201.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Finality in Class Action Litigation: Lessons From Habeas, 82 N.Y.U. L. Rev. 791 (2007).
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
Abstract
A class action can only bind class members who are “adequately represented,” and thus a class action court necessarily determines representational adequacy. But should class members who were not an active part of that proceeding be able to relitigate adequacy in a collateral forum at a later date so as to evade the binding effect of the class judgment? Courts and scholars have generated a bipolar response to that question, with one side arguing that full relitigation is required by the constitutional nature of the question and the other insisting that no relitigation is permitted because of the issue-preclusive effect of the class court’s holding. Despite the richness of this debate, myriad specific questions about the availability, substance, and procedural details of the relitigation opportunity remain unexamined. In this Article, Professor Rubenstein expands the conversation outward by comparing class action law’s approach to relitigation of adequacy of representation with habeas corpus’s approach to relitigation of ineffective assistance of counsel claims in criminal cases. Using two recent, seemingly unconnected Supreme Court cases—one from each field—as case studies, Professor Rubenstein explains how these cases in fact raise remarkably similar questions. Specifically, the comparison reveals that habeas provides a relatively clear, rule-based system that specifies when—and according to what procedural rules—relitigation is available. Professor Rubenstein concludes by arguing that there are lessons for class action law in habeas’s approach: a method for considering when relitigation is appropriate that avoids the extremes of either “always” or “never”; a rule system that helps identify issues (such as substantive standards, degrees of deference, burdens of proof, and defaults) that have yet to be carefully examined in class action law; and a template for balancing the competing policy concerns at issue. Without defending current habeas doctrine, and without pretending that habeas and class actions are overtly similar, the Article nonetheless demonstrates that class action law’s relitigation problem can learn something through a close look at criminal law’s relitigation solutions.
William B. Rubenstein, On The Difference Between Winning and Getting Fees, 1 Class Action Att'y Fee Dig., June 2007, at 163.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Divvying Up The Pot: Who Divides Aggregate Fee Awards, How, and How Publicly?, 1 Class Action Att'y Fee Dig., May 2007, at 127.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, On Plaintiff Incentive Payments, 1 Class Action Att'y Fee Dig., Apr. 2007, at 95.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, Percentage of What?, 1 Class Action Att'y Fee Dig., Mar. 2007, at 63.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein & Alan Hirsch, Lodestar v. Percentage: The Partial Success Wrinkle, 1 Class Action Att'y Fee Dig., Feb. 2007, at 31.
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
Type: Article
William B. Rubenstein, The Fairness Hearing: Adversarial and Regulatory Approaches, 53 UCLA L. Rev. 1435 (2006).
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
,
Litigation & Settlement
Type: Article
Abstract
At the conclusion of every class action lawsuit, a judge must hold a fairness hearing to assess the reasonableness of the outcome. The fairness hearing contains the promise of providing real monitoring of class counsel. In practice, it has not fulfilled this promise and scholars have largely, therefore, forsaken it. In this Article, William Rubenstein provides a sustained investigation of the fairness hearing, arguing that since it will inevitably take place, we ought to perfect not abandon it. To that end, he explores four types of mechanisms that might assist the judge at the fairness hearing: a devil’s advocate, employed by the court to argue against the settlement; bonds, posted by the settling parties and used to pay the attorneys’ fees of private objectors who raise valid concerns; labels, like food nutrition labels, compelled by a public agency to provide more transparency to the elements and quality of the settlement; and certification marks, like the Good Housekeeping Seal of Approval, created by an independent private group to signal class members and judges as to the adequacy of the settlement terms. Examining this new set of disparate proposals enables an assessment of the underlying question of institutional design: namely, whether adversarial or regulatory, public or private, approaches are likely to be most efficacious at identifying and curtailing problematic settlements and hence controlling class counsel. Given that at a fairness hearing a judge is charged with reviewing two distinct sets of concerns—the process by which the settlement was achieved and the content of the settlement in light of the strengths or weaknesses of the plaintiffs’ claims—Professor Rubenstein concludes that these roles require a combination of adversarial and regulatory approaches. For review of the substance and value of the class’s legal claims, adversarial presentation of issues is the preferred procedure and a judge the favored decisionmaker. For review of the settlement process, investigatory oversight is the needed procedure and an administrative inquisitor the ideal agent. The proposed settlement of a class action should trigger a two-part process involving both a judicial assessment of the value of the claims and a regulatory assessment of the process of settlement. Such an enriched proceeding holds the promise of providing meaningful constraints on class counsel.
William B. Rubenstein, Why Enable Litigation?: A Positive Externalities Theory of the Small Claims Class Action, 74 UMKC L. Rev. 709 (2006).
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
,
Litigation & Settlement
Type: Article
Abstract
This Article appears in a Symposium commemorating the Supreme Court's decision in Phillips Petroleum Co. v. Shutts. The legal claims that gave rise to Shutts were meritorious, yet of relatively modest value. Individuals are unlikely to litigate such negative value claims because the costs of doing so outweigh the benefits they will receive; defendants are well-situated to escape liability. Conventionally, scholars describe this situation as posing a collective action problem and demonstrate how the class action mechanism works to solve that problem. In this Article, I discuss the problem of negative value claims in a related yet distinct manner. The fact that parties will not pursue these claims is, I argue, an example of the underproduction of a so-called public good. That good is a lawsuit. Litigation can be conceptualized as a public good, with its pursuit producing positive externalities. The Article enumerates these collateral social benefits, grouping them as: 1) decree effects; 2) settlement effects; 3) threat effects; and 4) institutional effects. The addition of this analysis to the scholarly literature serves several functions. Among these is that it illuminates how little collective action really takes places in small claims cases; how relatively unimportant the compensatory aspects of the case are compared to its other social functions; how the concept of deterrence does not capture these non-compensatory benefits as well as the concept of externalities does; and how small claims class actions are more like other types of class cases than generally presumed.
William B. Rubenstein, Play It Straight, N.Y. Times, Oct. 16, 2004, at A17.
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
LGBTQ Rights Law
,
Elections & Voting
Type: News
Abstract
Comments on the emergence of same sex marriage during the political debates of the presidential candidates in the U.S. Remark of the Democratic nominees concerning Mary Cheney, the lesbian daughter of Vice President Dick Cheney; Portrayal of hypocrisy by both parties; Contrast between the Cheney's support for his daughter and the president's policies.
William B. Rubenstein, Hiding Behind the Constitution, N.Y. Times, Mar. 20, 2004, at A13.
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Discrimination
,
LGBTQ Rights Law
,
Politics & Political Theory
Type: News
Abstract
Comments on the attitude of the Republican Party and the Democratic Party of the U.S. on the debate over gay marriage. Message by Republicans that gay marriage is all about "judicial activism"; Appeasement of the conservative base of the Republicans by opposing gay marriage; Contention by the Democrats that gay marriage is all about state's rights; Ability of Democrats to placate their liberal cause by not opposing gay marriage.
William B. Rubenstein, My Harvard Law School, 39 Harv. C.R.-C.L. L. Rev. 317 (2004).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
LGBTQ Rights Law
,
Legal Education
,
Biography & Tribute
Type: Article
William B. Rubenstein, On What a "Private Attorney General" Is - And Why It Matters, 57 Vand. L. Rev. 2129 (2004).
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
,
Litigation & Settlement
Type: Article
Abstract
Although the phrase private attorney general is commonly employed in American law, its meaning remains elusive. The concept generally serves as a placeholder for any person who mixes public and private features in the adjudicative arena. Yet there are so many players who mix public and private functions in so many different ways that the idea holds the place for a motley cast of disparate characters. My goal in this Article is to map these mixes - to distill from the singular private attorney general concept a range of distinct private attorneys general - and then to show why this new taxonomy is a helpful heuristic device. Specifically, I argue that the new taxonomy illuminates a weakness in the governing model of the class case. Scholars loosely associated with the law and economics movement have helpfully described class action lawsuits as presenting a classic agency problem: class action attorneys (agents) pursue the interests of their class member clients (principals) with little oversight or control. Consequently, class action scholarship has focused on identifying ways to better align the interests of the agents with those of their principals. This obsession with agent incentives assumed, without significant investigation, that there existed a stable group of principals with easily-identifiable interests. My typology demonstrates that different types of private attorneys general serve different types of principals, each of which combine public and private interests in different ways. If the goal of class action law is to align the attorneys' interests with those of their clients, it is necessary to identify clearly the precise nature of these underlying principals. That is the contribution of this piece.
William B. Rubenstein, The Real Story of U.S. Hate Crimes Statistics: An Empirical Analysis, 78 Tulane L. Rev. 1213 (2004).
Categories:
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
,
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Race & Ethnicity
,
Religious Rights
,
Empirical Legal Studies
Type: Article
Abstract
Since 1990, the federal government has collected data on hate crimes reported throughout the United States. To date, the conventional account of that data has simply been to report that racial hate crimes are the most frequently reported type, followed by religious hate crimes, and sexual orientation hate crimes. While this conventional story is not technically wrong, I argue in this Article that it is not the real story the data tell. Undertaking the first comprehensive empirical analysis of this data, this Article develops a new account of hate crimes in the United States. First, the Article pierces the neutral categories (race, religion, sexual orientation) to demonstrate that three sub-groups - blacks, Jewish people, and gay people - report, by far, the most hate crimes. Second, I adjust the raw data to account for the differing population sizes of targeted groups: per capita, gay people report the greatest number of hate crimes, followed by Jewish people and blacks, these three groups reporting hate crimes at greater per capita rates then all other groups. Third, gay people are especially like to report personal - as opposed to property-based - hate crimes. A final section of the Article presents the first scholarly analysis of the staggering growth of anti-Islamic and anti-Arab hate crimes after September 11, 2001. The methodology of this Article enables a per capita perspective on this increase, showing that Muslims and Arabs reported hate crimes in 2001 at rates even greater than those at which gay people, Jewish people, and blacks have reported hate crimes over the past half-decade. While this post-9/11 spike leveled off in 2002, Muslims and Arabs are still reporting hate crimes at very high rates. As Congress intended hate crimes data to assist in designing public policy initiatives, the Article concludes by calling on Congress to respond to what the data actually demonstrate.
William B. Rubenstein & R. Bradley Sears, Toward More Perfect Unions, N.Y. Times, Nov. 20, 2003, at A31.
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
LGBTQ Rights Law
Type: News
Abstract
Comments on the legalization of gay marriage in Massachusetts. Rights and benefits afforded to gay couples in different states; Relocation of majority of people who identified themselves as "living with an unmarried partner" to states that grant some legal recognition to gay unions.
William B. Rubenstein, The Concept of Equality in Civil Procedure, 23 Cardozo L. Rev. 1865 (2002).
Categories:
Civil Practice & Procedure
Sub-Categories:
Practice & Procedure
Type: Article
Abstract
The Article fills a void in the procedural literature by providing the first sustained treatment of the complex role that equality plays in procedural thought. The Article's central message is that there is not one "procedural equality" but rather a host of "procedural equalities." I identify and explore three different forms of equality that are central organizing principles of procedural justice. The Article creates a new typology of procedural equalities. The Article's second primary contribution is that it demonstrates how our procedural systems contain an intricate web of architectural decisions that promote procedural equalities. The Article discusses numerous procedural rules and approaches that contribute to the forms of equality that are identified. Finally, by carefully delineating the meaning of equality in various procedural domains, the Article provides an explanation for the Equal Protection Clause's impotence in the field of procedure - namely, that constitutional equality and these three procedural equalities are not the same thing. Although my conclusion is that constitutional adjudication is generally not a successful, nor even germane, method for achieving procedural equalities, the Article nonetheless contains a normative agenda. It concludes by providing policy suggestions to two sets of institutional actors - crafters of alternative dispute resolution systems and legislators considering procedural rules.
William B. Rubenstein, A Transactional Model of Adjudication, 89 Geo. L.J. 371 (2001).
Categories:
Civil Practice & Procedure
,
Corporate Law & Securities
Sub-Categories:
Litigation & Settlement
,
Class Action Litigation
,
Torts - Product Liability
Type: Article
Abstract
This Article defines a new way of thinking about adjudication. American procedural theory encompasses three familiar models of adjudication: the traditional adversary system model; a model of public law litigation that describes large civil rights cases; and a model of managerial judging that attempts to account for the increasing judicial emphasis on settlement, as opposed to adjudication. None of these models, however, can explain much of contemporary class action litigation. A new model of civil litigation has emerged: a transactional model. The large, sprawling class action lawsuits that occupy the current procedural domain have more in common with business deals than they do with traditional adversarial litigation, legislative activity, or executive management. The salient attributes of contemporary class actions are most familiar in transactional terms: (1) Defendants purchase a commodity - finality. They buy from the plaintiffs' representative the plaintiffs' rights to sue. (2) The attorneys' activities are primarily business-oriented, not legal, in nature. They negotiate and structure large financial arrangements. Traditional litigation work - client meetings, legal research, discovery, motion practice, brief drafting, oral argument, trial - is of secondary importance. (3) The familiar signposts of adjudication - pleading, discovery, and trial - are of minor importance. Pleadings often do not initiate adjudicatory activity, but rather succeed the finalization of the transaction, and rarely do they frame the nature of the dispute as much as they reflect the nature of the deal. Huge transactions take placed based on discovery from other cases, or no discovery at all. Trial is rarely contemplated. (4) Judges broker deals, they do not adjudicate cases or even simply manage settlements. (5) The desire for nationwide deals and global peace has displaced familiar sovereign boundaries on the judicial capacity and function. This Article demonstrates the failure of current doctrinal and theoretical frameworks through an in-depth analysis of three recent Supreme Court cases - Amchem & Ortiz (mass tort class actions) and Matsushita (securities class actions ). The Article then describes the new transactional model, making the case for conceptualizing large, private law class action lawsuits as commercial transactions. The Article demonstrates the descriptive and explanatory value of such a model. The Article concludes by considering some of the normative questions raised by the adjudicatory developments.
William B. Rubenstein, Do Gay Rights Laws Matter?: An Empirical Assessment, 75 S. Cal. L. Rev. 65 (2001).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Empirical Legal Studies
Type: Article
William B. Rubenstein, Boy Scouts Is a Training Ground for Homophobia, L.A. Daily J., Dec. 29, 2000.
Categories:
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Discrimination
Type: News
William B. Rubenstein, Divided We Propagate: An Introduction to Protecting Families: Standards for Child Custody in Same-Sex Relationships, 10 UCLA Women's L.J. 143 (1999).
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Children's Law & Welfare
Type: Article
William B. Rubenstein, The Myth of Superiority, 16 Const. Comment. 599 (1999).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
LGBTQ Rights Law
,
Courts
,
Federalism
,
State & Local Government
Type: Article
Abstract
This Article re-considers the relationship between federal and state courts as fora for the resolution of civil rights claims. In his renowned 1977 article, The Myth of Parity, 90 Harv. L. Rev. 1105, Professor Burt Neuborne set forth the argument that the federal courts were institutionally superior to state courts in handling federal constitutional claims. In the succeeding 22 years, gay litigants seeking to establish and vindicate civil rights have generally fared better in state courts than they have in federal courts. This might, of course, be nothing more than a consequence of the political orientation of the federal judges appointed by Presidents Reagan and Bush during these years. However, this Article argues that the gay rights experience reveals certain institutional characteristics of state courts that make them systemically better-situated (or at least no less well-situated) to demonstrate empathy for minority concerns in certain carefully-defined situations. In so concluding, the Article urges that forum-shopping civil rights attorneys abandon an irrebutable presumption in favor of federal courts.
William B. Rubenstein, Queer Studies II: Some Reflections on the Study of Sexual Orientation Bias by the Legal Profession, 8 UCLA Women's L.J. 379 (1998).
Categories:
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
LGBTQ Rights Law
Type: Article
William B. Rubenstein, Foreword, in Michael Scarce, Male on Male Rape: The Hidden Toll of Stigma and Shame (1997).
Categories:
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Gender & Sexuality
Type: Book
Abstract
Male on Male Rape: The Hidden Toll of Stigma and Shame examines a form of violence that, despite worldwide prevalence, remains vastly underreported and unrecognized. Michael Scarce, coordinator of a rape education and prevention program and a survivor of adult male rape, investigates the substantial effects of male-on-male sexual violence on individuals and society, dispelling popular myths and questioning why most communities cannot or will not confront the problem of same-sex sexual violence. This groundbreaking book is the culmination of years of research that includes numerous interviews with straight and gay male rape survivors, an analysis of popular media, case studies, and the author's own personal and professional experience. Male on Male Rape shatters the silence surrounding this sexual violence in our society while offering concrete initiatives and strategies for addressing the rape of men by men. It is an invaluable resource for anyone interested in the prevention of rape or the healing of rape's devastating effects.
William B. Rubenstein, Divided We Litigate: Addressing Disputes Among Group Members and Lawyers in Civil Rights Campaigns, 106 Yale L.J. 1623 (1997).
Categories:
Civil Practice & Procedure
,
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Litigation & Settlement
,
Practice & Procedure
,
Gender & Sexuality
,
LGBTQ Rights Law
,
Civil Rights
,
Legal Ethics
Type: Article
Abstract
Examines the rules of civil procedure structure disputes among group members regarding their goals in practice. Impact of the rules of professional ethics on disputes among attorneys about legal strategies; Individualist model of procedure and ethics; Rules of civil procedure and democratic decision-making among members.
William B. Rubenstein, In Community Begins Responsibilities: Obligations at the Gay Bar, 48 Hastings L.J. 1101 (1997).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
LGBTQ Rights Law
,
Legal Reform
,
Legal Services
Type: Article
William B. Rubenstein, Ruth Eisenberg & Lawrence O. Gostin, The Rights of People Who are HIV Positive: The Authoritative ACLU Guide to the Rights of People Living with HIV Disease and Aids (ACLU Handbook) (S. Ill. Univ. Press 1996).
Categories:
Discrimination & Civil Rights
,
Health Care
Sub-Categories:
Discrimination
,
Health Law & Policy
Type: Book
Abstract
Using the question-and-answer format common to all ACLU handbooks, this book makes clear how to take advantage of the laws designed to secure the rights of people who are HIV positive. The authors have divided the book into four sections: the disease itself and the related testing, public health, and confidentiality issues; day-to-day issues involving insurance, family law, and healthcare decision-making; discrimination in housing and work; and AIDS in prisons, schools, as a factor in immigration, and among IV drug users.
William B. Rubenstein, Lesbians, Gay Men and the Law, in The Lives of Lesbians, Gays, and Bisexuals: Children to Adults 331 (Ritch Savin-Williams & Ken Cohen eds., 1995).
Categories:
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
Type: Book
Abstract
This contributed text is for undergraduate or graduate courses in gay, lesbian and bisexual studies and courses on diversity issues taught in a variety of departments. The authors are experts from psychology, sociology, anthropology, education, women's studies, and law. Features: * Developmental focus provides students with a sense of continuity in understanding the life span challenges of gays, lesbians, and bisexuals. * Range of topics include perinatal factors in gender identity, issues in sexual childhood identity, perspectives on coming out, ethnic minorities, dating, relationships, families, and law. * Examples from popular culture, interviews, and life histories help students relate to and understand these issues more fully. * Lists of resources, organizations and services, as well as policy recommendations, form a valuable reference guide within the textbook.
William B. Rubenstein, Since When Is The Fourteenth Amendment Our Route to Equality?: Some Reflections on the Construction of the "Hate Speech" Debate From a Lesbian/Gay Perspective, in Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties 280 (co-contributor with Henry Louis Gates, Jr., Anthony P. Griffin, Donald E. Lively, Robert C. Post & Nadine Strossen, NYU Press 1994).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
First Amendment
,
Fourteenth Amendment
,
Gender & Sexuality
,
Race & Ethnicity
,
Civil Rights
,
LGBTQ Rights Law
Type: Book
Abstract
Proponents of hate speech regulations, notes Harvard Afro-American Studies department head Gates in the best of these six essays, must be met with more than conventional free speech absolutism. He elegantly dissects the practical problems of such codes (who defines "historically oppressed?") and attributes their rise to "the seductive vision of the therapeutic state." Also notable are three short stories, including one about a silenced comedian by Griffin, a black Texas lawyer professionally censured for representing the Ku Klux Klan. Other contributors write in lawyerish style but make some worthy points: dialogue, not censorship, might better lead us to racial reform; contrary to common perception, the American Civil Liberties Union devotes more resources to fighting racism than defending racists; despite radical law professors' arguments that the equality provisions of the Fourteenth Amendment should take precedence over the free speech guarantee of the First, gay and lesbian gains have relied mainly on the First Amendment.
William B. Rubenstein, The Stonewall Anniversary: 25 Years of Gay Rights, 21 Hum. Rts., Summer 1994, at 18.
Categories:
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
Type: Article
William B. Rubenstein, No: Judge People by Their Abilities, ABA J., Oct. 1993, at 55.
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
LGBTQ Rights Law
,
Military & Veterans Law
Type: Other
Abstract
Presents the views William B. Rubenstein, director of the American Civil Liberties Union's (ACLU) National Lesbian and Gay Rights Project on the law allowing gays and lesbians to serve in the military. Views of ACLU on the constitutionality of the policy; Violations of the First Amendment and equal protection rights.
William B. Rubenstein, Day of Judgment for Gay Ban, Legal Times, Aug. 2, 1993, at 58.
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
LGBTQ Rights Law
,
Discrimination
,
Military & Veterans Law
Type: News
William B. Rubenstein, Gays in the Military: Compromise Won't Last in Court, L.A. Daily J., July 23, 1993.
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
LGBTQ Rights Law
,
Discrimination
,
Military & Veterans Law
Type: News
William B. Rubenstein, 'Don't Ask, Don't Tell.' Don't Believe It, N.Y. Times, July 20, 1993, at A19.
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
LGBTQ Rights Law
,
Military & Veterans Law
Type: News
Lesbians, Gay Men and the Law: A Reader (William B. Rubenstein ed., The New Press 1993).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
LGBTQ Rights Law
Type: Book
Abstract
Organized according to the life experience of lesbians and gay men, the book includes chapters entitled, "What we talk about when we talk about sexual orientation," "Having sex/making love," "Coming out/speaking out/joining in," "Working," "Coupling" and "Parenting"
William B. Rubenstein, AIDS: Illness and Injustice;
 The Epidemic Poses Questions About Liberties and Access to Care, Wash. Post, July 26, 1992.
Categories:
Discrimination & Civil Rights
,
Health Care
Sub-Categories:
Civil Rights
,
Discrimination
,
Health Law & Policy
Type: News
William B. Rubenstein & Luis Lavin, The HIV Epidemic in Puerto Rico, in AIDS Agenda: Emerging Issues in Civil Rights (Nan D. Hunter & William B. Rubenstein eds., 1992).
Categories:
Discrimination & Civil Rights
,
Health Care
Sub-Categories:
Civil Rights
,
Discrimination
,
Health Law & Policy
Type: Book
Abstract
As the AIDS crisis moves into its second decade, new populations are suffering its devastating effects, and complex new social and legal issues are emerging. In AIDS Agenda, the directors of the AIDS Project of the ACLU have gathered nine important essays analyzing the legal and social policy failures that have led to widespread discrimination against persons with HIV disease, and have presented concrete recommendations for a more just and effective AIDS policy. With an emphasis on civil rights throughout, the authors address such topics as adolescents with HIV, women with HIV, health insurance and the battle over limits on coverage, the criminalization of HIV infected persons, HIV in the workplace, and the responsibilities of health care providers. AIDS Agenda is not only a useful and moving review of significant cases relating to HIV, AIDS, health care and civil rights, but also represents an urgent response to the government's willful failure to address these issues.
Nan D. Hunter & William B. Rubenstein, AIDS and Civil Rights: The New Agenda, 7 AIDS & Pub. Pol'y J. 204 (1992).
Categories:
Discrimination & Civil Rights
,
Health Care
Sub-Categories:
Civil Rights
,
Discrimination
,
Health Law & Policy
Type: Article
William B. Rubenstein, Since When is the Fourteenth Amendment Our Route to Equality: Some Reflections on the Construction of the Hate Speech Debate from a Lesbian/Gay Perspective, 2 Law & Sexuality 19 (1992).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
First Amendment
,
Fourteenth Amendment
,
Civil Rights
,
LGBTQ Rights Law
,
Discrimination
Type: Article
Abstract
Symposium speech: Legal Restrictions on Homophobic and Racist Speech: Collateral Consequences on the Lesbian and Gay Community
William B. Rubenstein, Challenging the Military's Antilesbian and Antigay Policy, 1 Law & Sexuality 239 (1991)(reviewing Allan Berube, Coming Out Under Fire (1991)).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
LGBTQ Rights Law
,
Military & Veterans Law
Type: Article
William B. Rubenstein, We Are Family: A Reflection on the Search for Legal Recognition of Lesbian and Gay Relationships, 8 J.L & Pol. 89 (1991).
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
LGBTQ Rights Law
Type: Article
Gara LaMarche & William B. Rubenstein, The Love That Dare Not Speak: Censoring Gay Expression, The Nation, Nov. 5, 1990, at 524.
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
First Amendment
,
Discrimination
,
LGBTQ Rights Law
Type: Other
Abstract
Congress, spurred by Senator Jesse Helms, bars the National Endowment for the Arts from funding "homoerotic" art, thereby equating art, involving homosexual themes with obscenity. Facing criticism from conservative members of Congress, the Secretary of Health and Human Services disavows a government report on youth suicide that found a remarkable prevalence of suicide among, and called for an end to discrimination against, gay youth. In Arlington Heights, Texas, a school principal prohibits the school paper from publishing the results of a student survey on attitudes towards homosexuality.
William B. Rubenstein, Law and Empowerment: The Idea of Order in the Time of AIDS, 98 Yale L.J. 975 (1989)(reviewing AIDS and the Law: A Guide for the Public, Harlon L. Dalton & Scott Burris eds., 1989).
Categories:
Health Care
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Disability Rights
,
Health Law & Policy
Type: Article

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Professor Rubenstein's Personal Web Page: www.billrubenstein.com