Mitu Gulati
Versatile scholar joins Duke Law faculty
Mitu Gulati is known in legal circles for the striking creativity and breadth of his scholarship; in fact, one catalogue of recent moves by law professors offered the designation “Renaissance man” in place of a specialty. With characteristic modesty Gulati, who joined the Duke Law faculty in July from Georgetown, ducks the accolade, saying that his scholarship, which addresses such diverse issues as employment discrimination, critical race theory, corporate law, and international sovereign debt, simply reflects his interests. “That’s what’s great about the job.” His colleagues are less reserved about singing his praises.
“He is extraordinary,” says Professor Catherine Fisk. “His studies of employment discrimination in large law firms have shaped a decade of critical, empirical, and theoretical scholarship about discrimination in the elite professions. He collaborates with an enormous number of people across a wide variety of subject matters, brings together diverse people and ideas, and mentors students and junior scholars in a number of areas. Both intellectually and personally, he brings out the best in everyone with whom he works. He is so productive in so many areas that one wonders whether there are really two or three Mitus behind so much superlative work.”
“Mitu’s interests are like his intellect, wide-ranging and bent on challenging conventions,” adds Brainerd Currie Professor of Law James Cox. “In one of the areas of my interest, securities regulation, Mitu is the leading scholar on sovereign debt, such as today’s debate regarding how to discourage lending to tyrants who when in power
raid their country’s treasury of the funds obtained through international borrowing. What is particularly distinctive about Mitu is the extensive ties he has to practitioners who help him bridge the distance from the heights of our ivory tower to the ground.”
Gulati cemented his interst in sovereign debt as a first year associate at Cleary, Gottlieb, Steen & Hamilton in New York, following his graduation from Harvard. “There was a pro bono project for Tanzania,” Gulati recalls. “They couldn’t pay back their debt and were trying to devise some scheme where they would issue equity interests in state-owned enterprises in exchange for people forgiving their debt. I was responsible for thinking about some of these things.” He had, in fact, been thinking of such things for years. Having grown up in Kerala, India, Gulati’s economist father focused on international finance.
I grew up around conversations about debt problems, sustainability and the IMF, North-South dialogue, and things like that. In the U.S. there is very little awareness about global debt problems, but the rest of the world has been talking about it for decades.
Although he left Cleary, Gottleib after a year to pursue a clerkship, Gulati has collaborated frequently with Cleary partner Lee Buccheit, who currently represents the Iraqi government in its debt restructuring; Buccheit was one of several sovereign debt specialists who guest lectured in Gulati’s “International Debt” class last spring and will return to co-teach a short course, “Law, Ethics, and International Finance,” in the coming academic year. Most recently, the two have collaborated on scholarship relating to sovereign bonds and questions of “odious debts.”
While some commentators suggest that states should have the right to totally repudiate debts incurred by previous odious regimes, Gulati and Buccheit argue, in a forthcoming article written with Robert Thompson of Vanderbilt Law School, in favor of independent scrutiny of each contractual debt of a sovereign pursuant to the domestic law of the United States or another appropriate country.
“Often if you fail to pay one creditor, it causes a default on everybody’s debt,” Gulati explains, noting the reputational sanctions that follow default. “I want a court to declare a debt illegitimate, so that neither the reputational sanction nor the contractual secondary effects from nonpayment apply. South Africa could probably say, ‘Look, we just won’t pay any of the arms debt that the previous apartheid regime incurred.’ Yet they don’t. But if there was a system whereby they could pay the debts that were incurred to build basic infrastructure, but not those that were used to buy arms used to shoot at [black South Africans] — if there is a way that courts could say a debt is not valid under the basic principles of contract law, maybe the creditor community would say that seems fine.”
All firms have their own cultures, and they are going to hire people that fit those cultures
Also known as one of the leading scholars of employment discrimination in the country, Gulati’s work has consistently probed the complexities of racial and gender discrimination within the context of specific organizations and institutions. Much of his scholarship in the area of employment discrimination emphasizes the need to examine intra-group, as well as inter-group experiences, and how “identity” affects discrimination — as, for example, how the experience of a black lesbian may differ from that of a black heterosexual woman. It also reflects his fascination with workplace dynamics and the various social and economic forces that affect organizations and their decision-making.
“All firms have their own cultures, and they are going to hire people that fit those cultures,” says Gulati, noting the importance of cohesion in law firms and other workplaces. “Only particular types of women and minorities will be hired, and only particular types of women and minorities will be promoted. And if [the women and minorities] know that’s what the firm requires, they’ll try to behave in ways that the firm wants them to behave.”
In a chapter in Friedman’s Employment Discrimination Stories (Foundation Press, 2006), subtitled “Makeup and Women at Work,” Gulati and co-authors Devon Carbado of UCLA and Gowri Ramachandran of Georgetown, dissect the Ninth Circuit’s recent ruling in Jesperson v. Harrah’s Casino, which upheld Harrah’s decision to fire a long-time bartender because she refused to comply with its requirement that female employees wear makeup. While the court found that Harrah’s action did not constitute discrimination on the basis of sex, Gulati and his co-authors argue the regulation of makeup and grooming should be so conceptualized, concluding that employers historically have used makeup “both to screen women into the workplace and screen them out.” Gulati and Fisk have joined forces to explore the issue further, inviting business and legal scholars to Duke for an October conference focused on makeup, grooming, performance, and discrimination.
In 2003, Gulati and Professor Stephen Choi of Boalt Hall — who frequently collaborate on scholarship relating to securities regulation — generated enormous response when they proposed a “tournament of judges” for filling Supreme Court vacancies. The partisan bickering that has overtaken the appointment process could be circumvented, they argued, by looking solely at objective, empirical criteria such as opinion publication rates, dissent rates, reversal rates, and rates of citations by academics, appellate courts, and the Supreme Court.
“There is so much data on these people — they have often been judges for two or three decades,” observes Gulati. “The data can’t give you a full picture, but it can give you an idea of whether someone is being lazy or not. It can lead you to ask more questions [about a jurist’s performance].” And such an exercise would render transparent political motivations behind appointments of less objectively “qualified” judges, suggests Gulati.
Gulati and Choi’s essay setting out their “thought experiment” sparked a great deal of favorable response from legal academics as well as “hate mail,” says Gulati. Jurist devoted an online symposium to the idea, and the Florida State University Law Review used it as a springboard for a symposium issue considering empirical measures of judicial performance.
Although he did his best to avoid the media spotlight as Chief Justice John Roberts and Associate Justice Samuel Alito went through their confirmation hearings, Gulati acknowledged to The Washington Post in January that Justice Alito ranked 16th among 98 appellate judges when “productivity,” “quality” of opinions, and “judicial independence” were taken into account, though he advised against “overinterpreting” the results. Having clerked for Judge Alito on the United States Court of Appeals for the Third Circuit in 1996—97, an experience he describes as “wonderful,” Gulati notes the particular challenge for any clerk to “judge your judges.”
“They are your teachers, and in many ways, if you are lucky, the best teachers you’ll ever have. The relationship is one that goes on forever,” says Gulati who also clerked for the Honorable Sandra L. Lynch of the United States Court of Appeals for the First Circuit in 1995—96.