How Lower-Court Precedent Affects the Supreme Court

Aaron-Andrew Bruhl, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851 (2014)

Aaron-Andrew Bruhl has done it again. Beginning with a simple question—what can one say about the Supreme Court’s on-again/off-again relationship with lower court precedent—Bruhl finds a surprisingly rich collection of answers that illuminate much about the institutional federal judiciary. While Bruhl plays with numbers and demonstrates a sophisticated appreciation for the possibilities and limitations of empirical work on the federal courts, he treats quantitative analysis as one source of insight into a complex world rather than as an end in itself.

We’re familiar with the notion that the Court attends to lower court precedent. For starters, the Court often intones that its decision to grant review in a particular case was driven by a division in the lower court. When a split fails to emerge, it may prevent review for a time (as the marriage equality cases reveal). Even with a circuit split, the Court may refrain from taking a case at the first opportunity, preferring to allow the issue to percolate for a time as more circuit court judges take a crack at the problem. Finally, we often observe that particular members of the Court rely on lower court precedent in the course of their own treatment of an issue—Justice Breyer does this with some frequency, Bruhl reports, but Justice Scalia consciously eschews such reliance.

Bruhl manages to deepen our understanding of all of these matters. He begins with a bit of stage setting, invoking the Condorcet jury theorem (which explains the wisdom of groups) to illustrate why a Supreme Court like ours might benefit from the input of a large number of lower court decisions. More decisions, especially those that converge on a particular answer, might appear more likely to provide the “correct” answer. But Bruhl immediately recognizes several reasons why that may not always be true: lower courts may not be offering independent assessments of a question (particularly as circuit authority piles up on one side of a question), the Supreme Court has certain institutional advantages in the form of better briefs and arguments and longer decision times, and the legal question might have changed over the course of multiple decisions.

Bruhl also offers a nice typology of reasons why a Supreme Court might prefer to invoke lower court precedent. Those decisions may have a certain truthiness (as the Condorcet theorem suggests) and there may be pragmatic value in deferring to a well-settled view of the law that has emerged in the lower courts and has seemed to work tolerably well. With the typology in hand, Bruhl examines the numbers. He compiles a database from a recent three-year period and examines the Court’s behavior in light of the nature of the lower court authority. He finds some evidence that the Court more likely follows the direction indicated in a one-sided circuit split, but the evidence is far from conclusive. Indeed, he finds a number of situations in which the Court came out on the other side of a one-sided split.

These findings lead Bruhl to ask a series of productive second-order questions. For example, he raises serious doubts that one can identify “easy” cases by pointing to the one-sided nature of a circuit split (as some quantitatively minded scholars have hypothesized). Moreover, he usefully complicates our understanding of the very nature of a circuit split. After all, we have no definitive reporting system for circuit splits. In trying to identify splits, one might focus on the language of the Court’s own opinions (which in practice lack consistency) or on the content of the parties’ briefs (which sometimes disclose more or different information on circuit splits than the Court reports). Finally, he points out that the nature of a legal question may change as time advances. Lower courts may be constrained in their view of the law by existing circuit or Supreme Court precedent, and those constraints may not apply in other courts (either because they work in a different circuit or because the relevant Supreme Court precedent was overruled in the meantime). Caution to data crunchers: the task of coding for the existence and depth of a circuit split is no easy thing.

It seems fitting, somehow, that Justices Scalia and Breyer would differ so sharply in their use of lower court precedent. Justice Scalia tends to his own knitting; he believes in his own muse and in his own obligation to offer an independent determination of the legal question at hand. Justice Breyer, ever the pragmatist, attends more closely to the consequences of legal rules and the impact of unsettling from on high an interpretation of law that has taken hold below. Interestingly, Bruhl shows that Justice Kagan, at least at this stage in her career on the Court, has more in common with Justice Scalia than with Justice Breyer. Other Justices fall somewhere in between.

Bruhl ends, however self-consciously, with an anecdote. It seems that one Fifth Circuit panel identified a textual wrinkle in a statute that seemed pretty clearly to point to an answer different from views expressed by the several circuits that had previously decided the issue the other way. What to do? Follow the text or the weight of non-binding circuit authority? The panel followed the text, creating a split and virtually inviting Supreme Court review. But then the Fifth Circuit granted en banc review and reversed the panel, concluding that it was better to preserve the unity and clarity of the law than to insist on the accuracy of its own panel’s (arguably correct) interpretation. Perhaps the Fifth Circuit was also worried about the possibility of further review; by abrogating a panel decision that had created a circuit split that might beg for High Court intervention, the en banc circuit court avoided a division that could have resulted in an appellate reversal.

We learn much about the institutional judiciary from such a story. Accuracy in strictly legal terms may be a driving force in legal decisions, but it is not the only force. Courts may act strategically to reduce the likelihood of appellate reversal, thus lessening the “accuracy” of the signal that their decisions might otherwise convey about the best interpretation of the law. Circuit courts willing to buck a strong trend in the other circuits may do so only if genuinely convinced of the correctness of their view. Perhaps, then, a court that has recently disagreed with the weight of lower court authority (thereby creating a one-sided circuit split) may be sending (counterintuitively) a more accurate signal about the law than that expressed in the previously accumulated wisdom of the group.


Appealing to Injustice

William M. Richman & William L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (2013).

Professors William M. Richman and William L. Reynolds have been writing about the “crisis” facing the U.S. Courts of Appeals—a crisis borne out of the combination of a dramatic uptick in appellate caseloads and the lack of any corresponding increase in the number of federal appellate judges—since before I was born. Readers familiar with their groundbreaking earlier work in the field might therefore wonder whether there’s anything to learn from their new monograph on the subject, Injustice on Appeal. But the longevity of their critique actually underscores the significance of their newest work. By almost any account, the crisis facing the thirteen federal Courts of Appeals is only getting worse—and the steps those courts are taking in an effort to abate that crisis (what Richman and Reynolds refer to as the “Appellate Triage” regime) are only getting that much more controversial. Indeed, it is no overstatement to suggest that Injustice on Appeal is at once the most comprehensive—and yet accessible—descriptive account to date of both the crisis itself and the Appellate Triage regime that circuit judges have devised in response.

The real contribution of Injustice on Appeal, though, is not in its descriptive account of how the appellate crisis came to be, how circuit judges have responded, or why contemporary judges and lawmakers are so comfortable with such a problematic status quo. As the title suggests, Richman and Reynolds’ thesis is that the judicial response has created “injustice,” by producing a disproportionate impact on a specific subset of litigants. In their words, the effect of the Appellate Triage regime “falls disproportionately on the poor and middle class, whose appeals are deemed less momentous than the ‘big’ cases brought by or against the government or major private economic actors.” But while it’s impossible to discount the plight of poor and middle-class federal litigants in recent years, the real question Richman and Reynolds raise (but do not answer) is whether it’s the appellate crisis—as opposed to increasingly harsh procedural and substantive rules—that is to blame.

I. The Caseload Crisis and the “Appellate Triage” Regime

As Richman and Reynolds document, the average caseload per federal appellate judge has jumped from just over 57 cases per year in 1960 to over 340 in 2010. That statistic would be staggering enough in the abstract, but it comes alongside two additional developments that make it that much more jarring: First, the same period has seen a dramatic reduction in the number of cases heard by the Supreme Court—leaving the increasingly overworked Courts of Appeals with the last word on an ever-increasing majority of questions of federal law. Second, and less obviously, the same period has seen a proliferation in administrative appeals—in at least some of which (e.g., immigration and social security cases) the Courts of Appeals are all too often the first meaningful Article III word on those same questions.

In response to the undeniable pressures these developments have created, the circuit courts have, in addition to more zealously guarding their appellate jurisdiction, adopted a series of triage measures for cases within their purview. The hallmarks of this regime include (1) the screening of nearly all appeals by staff attorneys in the Court of Appeals’ clerk’s offices to assess the merits—or lack thereof; (2) the disposition of many—if not most—of those cases without oral argument; and (3) the resolution of the appeal through unpublished (and, until 2006, uncitable) “memorandum dispositions.” Through these devices, Richman and Reynolds argue, the Courts of Appeals have transmogrified themselves from courts of mandatory appellate jurisdiction into de facto certiorari courts, with only a specially chosen minority of cases receiving the full range of “traditional” appellate adjudication, including a “sufficiently detailed explanation so that the whole world can second-guess the result—and have an informed idea as to the state of the law.” And whereas a similar move by the Supreme Court in the 1980s was at least tied to statutory amendments to its jurisdiction (and thereby pursuant to a legislative sanction), these developments within the Courts of Appeals have taken place entirely through internal (and usually informal) procedural changes.

At some level of generality, all of Richman and Reynolds’ conclusions should be familiar to those with experience practicing before (or working with) the Courts of Appeals. But Richman and Reynolds replace anecdotal experience with incontrovertible evidence—and the numbers are staggering. According to the Administrative Office of the U.S. Courts, 81.4% of cases decided by the Courts of Appeals on the merits in 2012 were resolved through unpublished orders or opinions. A typical appellant, in other words, has less than a 1-in-5 chance of receiving the benefits of “traditional” appellate review from the Courts of Appeals. Reasonable minds can certainly differ as to whether such a regime is normatively desirable; what cannot be gainsaid is the complete absence of any meaningful democratic involvement in—or accountability for—such a fundamental shift in our judicial processes.

II. The Injustice of Contemporary Appeals and the Reform Agenda

As Professor Marin Levy has explained, the true insight of Richman and Reynolds’ work is not simply in describing the Appellate Triage regime. Rather, the insight is in showing how “it is not simply that some cases receive less judicial attention overall, but rather that some kinds of cases receive less attention—namely, social security cases, prisoner cases, and criminal cases,” i.e., “cases brought by parties who are arguably the most vulnerable in our legal system,” including criminal defendants, prisoners, and certain administrative claimants such as veterans and Social Security beneficiaries. In other words, Richman and Reynolds conclude, although the Appellate Triage regime would be problematic enough in its own right, it appears to not be “neutral,” but rather to give informal preference to litigants with means over those without:

Of course, this unfortunate result does not come from any deliberate attempt to harm disfavored groups; the federal appellate courts remain, in theory, a bulwark protecting the citizenry. Nevertheless, the harm is there for all to see; judges are simply less likely to devote serious effort and attention to the routine veterans’ benefit denial appeal than to the interesting corporate tax case. The discrimination may be ad hoc rather than planned, de facto and not de jure, but it is nonetheless real.

The “injustice” of the Appellate Triage regime, then, becomes Richman and Reynolds’ core impetus for reform; for if the regime is not sufficiently worthy of reform as such (and it hasn’t been, at least thus far), surely this effect, whether intended or not, is one that should not be tolerated by the American people—or, through them, federal policymakers. Instead, Richman and Reynolds conclude, Congress should finally accept the need for more federal appellate judges, even if the circuit courts themselves won’t.

In appealing to “injustice,” though, Richman and Reynolds’ work raises—but does not answer—perhaps the most important question. Students and scholars of Federal Courts jurisprudence know all too well how difficult it has become for many of these same classes of litigants to press their claims in any forum—a result of a controversial series of judge-made procedural obstacles and legislative constrictions of remedies over the past thirty years. And insofar as these statutes and doctrines have increasingly circumscribed both the entitlement of these parties to any judicial relief and the discretion of judges to so provide, the injustice of contemporary appeals may merely be an inevitable byproduct of the far more pervasive (and problematic) injustices pervading our contemporary legal system writ large.

Regardless, Richman and Reynolds have written a book that is a must-read even for those already familiar with its conclusions, but especially for those who are not.  There may be some disagreement as to the causes of the injustices plaguing present-day federal appeals, but there can no longer be denial of their existence.


The Depreciation of Precedent

Ryan C. Black & James F. Spriggs II, The Citation and Depreciation of U.S. Supreme Court Precedent, 10 J. Empirical Legal Stud. 325 (2013).

Landes & Posner’s 1976 article Legal Precedent: A Theoretical and Empirical Analysis is a path-breaking study in two ways. Drawing on the analysis of capital formation and investment, they were the first to offer a realistic theory of precedent. To them, precedents produce a flow of information that decreases in value over time as society evolves. Legal Precedent is also an early example of empirical scholarship in the law schools. To measure the efficacy of a precedent, they developed the-then novel strategy of counting the number of times judges cite to a decision. Applying this approach to samples of federal court decisions they found that precedent depreciated over time.

Unlike the precedents in their study, Landes & Posner’s paper hasn’t seemed to depreciate much. In just the last year or two, it has been cited in studies on labor law, judicial behavior, corporate law, and behavioral economics; and in journals as diverse as Theoretical Inquiries in Law, International Review of Law & Economics, the Journal of Evolutionary Economics, and the Annual Review of Political Science.

Black & Spriggs’s new article, The Citation and Depreciation of U.S. Supreme Court Precedent, could be seen as just another of the many studies that, as they write, “owes its origin” to Landes & Posner—just another citation. But that characterization would be a mistake. After all these years, Black & Spriggs break new ground.

The question they ask is not just whether precedent depreciates—it surely does, as the many studies in the wake of Landes & Posner have confirmed. The question is why there might be variation in depreciation rates. To provide a quick example from Black & Spriggs’s dataset: The Supreme Court decided both United States v. Riverside Bayview Homes and Cornelius v. Nutt in 1985. The Justices continue to cite Riverside Bayview Homes but not Nutt. Why?

Landes & Posner offered some hypotheses, and other scholars have followed suit. Frank Cross speculated, and political scientists tend to concur, that ideological considerations led to depreciation of Warren Court precedents during the Rehnquist years. Many writers, including the Justices themselves, have intimated that the value of constitutional precedent, relative to most others, should decline at a faster rate. And still other scholars have suggested that precedent established in especially salient cases might depreciate more slowly.

Studies have tried to assess some of these ideas but none with the level of rigor, sophistication, and breadth as this article. Black & Spriggs test the various hypothesis using all 6,299 Supreme Court decisions (the “precedents” in the study) issued between the 1946 and 2004 terms.

The results are really interesting. First, Black & Spriggs continue to validate Landes & Posner’s basic finding: Supreme Court precedents don’t have an especially long shelf life: they depreciate by about 80% between years one and twenty. Interestingly, though, much of the depreciation occurs within the first couple of years. Within five years of the Court issuing a decision, the predicted probability of citation decreases by 25%. Between fifteen and twenty years from decision, the probability declines by only 4%.

The second and especially notable result is that almost none of the hypothesized factors affect the rate of depreciation—and those that are significantly related have a very small effect. To provide but a few examples: Although there are good reasons to suspect that statutory precedents should depreciate at a slower rate than constitutional precedents, the results show very little difference between the two. Ditto for the political scientists’ emphasis on ideology. There is virtually no difference in depreciation rates based on the ideological distance between the deciding and sitting Court.

Only variables that tap the citation history of precedents produce statistically and substantively significant results. The more the Court interprets a decision and the more central a precedent in the network of Supreme Court law, the slower the depreciation. But even these effects tend to disappear a decade or so after the Court issues its decision.

What are we to make of these findings? First, Landes & Posner were right—and right without qualification. Precedent (almost always) depreciates, period. Second, because of its “here today, gone tomorrow” quality, law professors and lawyers might (re)consider carefully the cases they emphasize in class and in the courtroom. If currency is a virtue for at least some judges, maybe it should be for them too.


Judicial Retention Meets Due Process

Martin H. Redish & Jennifer Aronoff, The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism, Wm. & Mary L. Rev. (forthcoming, 2014), available at SSRN.

The differences between the composition and independence of the federal and state judiciaries have often been stated in simplistic terms—federal judges are appointed and state judges are elected, so the former enjoy greater independence while the latter are subject to greater popular accountability. But several instances of non-retention of state judges, often on the heels of controversial decisions, show that the real threat to judicial independence is not popular election as the means of initially selecting judges. Rather, the problem is popular election as the means of retaining judges once selected.

As Martin Redish and Jennifer Aronoff argue in a new article, “Judges will always owe their job to someone, and often someone who may at some point appear before them or be directly impacted by their decisions.” Instead, “the threat that a judge might make decisions on the basis of what might win him another term in office (and thus ensure his continued livelihood) looms constantly.” If the goal is to ensure judicial independence at the state level that looks more like judicial independence at the federal level, initial selection is largely irrelevant—the focus must be on creating better systems of retention. However a judge obtains her position initially, she should not have to worry about whether a particular decision will adversely affect her ability to retain that position.

But Redish and Aronoff go one step further. It is not only that non-electoral retention is a good idea that the Framers were wise enough to codify in Article III and that states should adopt in the name of judicial independence. Instead, non-electoral retention is required at the state level as a matter of Fourteenth Amendment Due Process. A litigant does not receive a meaningful opportunity to be heard by a neutral arbiter if there is any risk that the judge’s decision is influenced, even in small part, by considerations of how it may affect her continued service on the bench. A judge who is looking over her shoulder, worried about being thrown out of office is not a neutral arbiter, and that litigant’s opportunity to be heard on the merits is rendered meaningless if the decision is influenced by external issues unrelated to those legal and factual merits. It is clear that a judge should not gain a financial profit from deciding a case a certain way; it should be equally clear that a judge should not gain continued employment from deciding a case a certain way.

Redish long ago staked out the connection among life tenure, judicial independence, and due process, specifically in recognizing the Due Process Clause as an external limitation on congressional power to strip federal courts of jurisdiction. A fundamental component of due process is that a judge should not have any direct pecuniary or personal interests in the outcome of a case or her decision in a case. That includes interests in continued employment as a judge, which are personal and pecuniary, if less direct. Due process thus demands “a form of tenure secure enough to prevent judges from having to worry about pleasing voters or the popular branches while on the bench, or from making decisions on the bench with an eye towards how they will affect the judge’s future employment prospects.”

Now writing with Aronoff, Redish has a new arrow in the quiver—the Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co. The Court held that due process was violated where a justice of the West Virginia Supreme Court of Appeals heard (and cast the deciding vote in) a case affecting the interests of a businessman who contributed more than $3 million to the justice’s recent election campaign. That “significant and disproportionate influence” raised a “serious risk of actual bias—based on objective and reasonable perceptions,” even absent a showing that those contributions actually biased or influenced the judge. On its face, Caperton is about the effect of retroactive judicial gratitude—the fear that the judge would rule a certain way out of a sense of gratitude for the past beneficence of one of the parties. And the Court took great pains to emphasize the unique facts of the case.

But, the authors argue, the logic and rhetoric of Caperton extend much further. Gratitude is not only backward-looking, but also forward-looking or prospective: A judge’s anticipated need for support at some point in the future—from donors, voters, officials in other branches of government, or others—to retain her position may affect her decision just as much as gratitude for past donations. So might a judge’s feared need for post-judicial employment (say, as a partner in a law firm) at some point in the future. The appearance of influence or bias and the difficulty of proving actual influence or bias—both central to the Caperton analysis—justify prophylactic measures against the influence of prospective gratitude just as against retrospective gratitude. Eliminating electoral retention eliminates the risk to judges of losing their positions because of an unpopular decision, in turn eliminating the risk to litigants that judges’ decisions will be influence by concerns for their positions rather than the merits.

Redish and Aranoff illustrate the problem with electoral retention by describing several instances in which judges have been voted out in retention elections following well-funded election campaigns explicitly focused on particular decisions or categories of decisions. There was Justice Rose Byrd of the California Supreme Court in 1986, targeted because of her votes in several death-penalty cases. More recently, there were three justices of the Iowa Supreme Court who lost their seats in 2010 in the wake of a 2007 decision recognizing marriage equality under the state constitution, as well as a fourth justice who survived a tough battle and a relatively close vote to retain his seat. And demonstrating the ongoing practical import of these arguments, Tennessee is now the site of an organized effort to remove three Supreme Court justices, not for any particular decisions, but because of how they, as Democratic appointees, might be expected to rule on issues in unknown future cases involving unknown future litigants.

Focusing on due process means the constitutional problem is not the non-retention of these judges per se. If the public is permitted to vote on judges, then individual voters can vote for or against a judge for any reason, including agreement or disagreement with particular decisions or with expected decisions. The particular election does not raise either structural or due process concerns for the judge. Rather, due process focuses the analysis, and the claim of right, on litigants, present and future. The point is that the threat of a similar future electoral defeat may cause other judges to decide cases in a way that will maximize their chances of remaining on the bench or otherwise gaining or maintaining future employment. That threat violates the due process rights of the disadvantaged parties in these other cases (for example, future defendants in capital cases or future LGBTQ-rights claimants).

An open question, and an area for future exploration, is the precise nature of the “form of tenure secure enough” to allow a judge to decide the case solely on the merits and without consideration of how her decision will affect retention. Three possibilities appear—life tenure a la Article III, life tenure with a mandatory retirement age, or non-renewable terms of years. All insulate judges from voters or elected officials causing them to lose their office in response to particular decisions, thereby insulating litigants from judges deciding cases under that threat. But the second and third options create a different due process concern. Although a judge no longer is influenced by a desire to remain on the bench—she knows her judicial career will end when she turns 70 or when she has served 20 years, no matter how she decides the case—she may be influenced by a need to find non-judicial employment (for example, as a law-firm partner) once she has left the bench. Thus, Redish and Aronoff argue, life tenure is the only means of removing all employment considerations that might distract the judge from anything other than the merits of the claims before her, at least absent an unlikely declaring that a justice may not take another job after leaving the highest court.

The debate about the appropriate balance between judicial independence and accountability and how that affects systems of judicial selection and retention shows no sign of abating. By recasting the focus on retention rather than initial selection, framing the question in due process terms, and bringing to bear the consequences of the Supreme Court’s analysis in Caperton, Redish and Aronoff have added an important new wrinkle to the discussion.


What if you woke up one day in a place where there was no Courts Law?: The Impact of Teaching Procedure on the Legal Academy

Elizabeth G. Thornburg, Erik S. Knutsen, Carla Crifò, Camille Cameron, & David Bamford, A Community of Procedure Scholars: Teaching Procedure and the Legal Academy, 51 Osgoode Hall L.J. 93 (2013), available at SSRN.

In identifying legal scholarship worth celebrating (i.e., scholarship we like lots and that matters), few articles would seem to qualify better than one that traces the mutually supportive relationship between the teaching of civil procedure and the strength of the academic community and the scholarship in the field.

One such article is A Community of Procedure Scholars, a piece by multiple authors from four different legal systems—United States, Canada, Australia, and England and Wales. The authors compare and contrast the treatment of Civil Procedure in the law school curriculum and in the scholarly literature of their respective systems.

For most JOTWELL Courts Law readers, asking about the relationship between the teaching of procedure and scholarship in procedure would be like asking a fish what it is like to live in water. In many legal systems, civil procedure is so well established as a part of the law school curriculum and as an area of academic inquiry, and teaching and scholarship in the field are so prevalent that it would be odd to wonder about the connection between the two.

Surprisingly, though, this is not the reaction in all legal cultures. In particular, questioning the relationship might not seem so strange in England and Wales. It takes only a brief visit to a law faculty there for a specialist in Courts Law to feel like, well, a fish out of water. For in England and Wales, by and large, civil procedure is not an academic subject at all.

This is not an exaggeration or a misconception. If the existence of an academic subject can be determined by its inclusion in the curriculum of the typical law faculty, then the subject of civil procedure does not exist in England and Wales. It is not that it is taught under a different name, as might be the case with Restitution and Unjust Enrichment, or Conflict of Laws and Private International Law, or even Courts Law and Procedure. It is not that it is included in some other subject, for example, the way the Erie Doctrine is taught as part of Civil Procedure in the United States but might be understood as a question of the conflict of laws elsewhere. Civil Procedure simply is not present in the curriculum.

Alternatively, if the existence of an academic subject can be determined by a body of scholarship or a community of scholars, a similar absence is evident. England’s lone journal in this area, Civil Justice Quarterly, though highly respected, regularly relies on the contributions of foreign scholars. And the annual meeting in England of the Society of Legal Scholars has no session for the discussion of procedural law among the more than two dozen sessions covering the range of legal subjects studied.

This surprising absence raises intriguing questions about how a legal subject that is so well established in one legal system could fail to exist in another. What would it take to introduce a subject such as civil procedure into the academic curriculum in a country where it did not previously exist? What does it take to keep an academic subject alive and thriving in a country where it is well established?

When these questions are examined comparatively, the observations above—that one looks both to the inclusion of the subject in the standard law school curriculum and to a body of literature and a community of scholars—further demonstrate the connection between teaching and scholarship. As the authors explain:

This article asks whether the way in which procedure is taught has an impact on the extent and accomplishments of a scholarly community of proceduralists. Not surprisingly, we find a strong correlation between the placement of procedure as a required course in an academic context and the resulting body of scholars and scholarship. Those countries in which more civil procedure is taught as part of a university degree—and in which procedure is recognized as a legitimate academic subject—have larger scholarly communities, a larger and broader corpus of works analyzing procedural issues, and a richer web of institutional support systems that inspire, fund, and shape the study of public justice.

By comparing the scholarly communities in their countries and the nature and extent of the teaching of procedure in their countries’ law schools, the authors identify a strong symbiosis between the two. They link the positioning of civil procedure—as a required first year course taught by full time faculty, as opposed to an upper-year elective taught by adjuncts, as opposed to an element of a professional licensing course—to the prevalence of full time academics specializing in the subject. At one end of the spectrum, in 200 US law schools, more than 300 full time academics teach and write broadly in the area of civil procedure. At the other end of the spectrum, in some 83 British university law departments, fewer than a dozen full-time academics engage in any scholarship in the field.

The authors identify further correlations concerning the extent to which academic lawyers have established for themselves networks in the field, as well as comparing publication rates in the field. While the authors’ methods for measuring these metrics comparatively are ingenious, the picture that emerges is a compelling one: the spectrum from a first year compulsory subject taught by full time academics to a topic merely required on a practice training course tracks the varying strength and vitality of the community of scholars in the field in each country.

The article forms part of a larger project of comparative analysis that considered the impact of teaching civil procedure across common law systems as part of a special issue of the Osgoode Hall Law Journal on Teaching Civil Procedure. It included a detailed comparison of the extent and focus of the teaching of civil procedure across the four common law systems; an examination of the impact of the inclusion of civil procedure on the law school curriculum as a whole; and the possible implications of teaching procedure for the evolution of the legal profession and civil justice reform.


Coming to a Better Understanding of Remedies

Samuel L. Bray, The Myth of the Mild Declaratory Judgment, 63 Duke L. J. 1091 (2014).

Remedies is a vital, yet sometimes overlooked, area of study and scholarship. So often with law, we gravitate toward the substantive fields—constitutional law, property, contracts, torts, and the like. In academic writing and course offerings, there is less of a tendency to step back and consider the commonalities between these subjects.

Remedies is trans-substantive almost by definition. It looks across all areas of law and asks, once a liability or right has been established, now what? Is the victim, be she of trespass or breach of contract or malpractice, entitled to damages? If so, how much? Should she receive an injunction or declaratory relief or both? The goal of the field is to better understand how it is that our legal system can and should make aggrieved parties whole. Sam Bray’s The Myth of the Mild Declaratory Judgment deftly brings us closer to that goal.

As Bray reminds us at the outset ofthe article, plaintiffs seeking prospective relief often request an injunction, a declaratory judgment, or both. Bray is prompted by this remedial fork in the road to ask a critical question: how are injunctive and declaratory relief different? The traditional answer is that declaratory judgments are “milder” than injunctions. The “mildness thesis,” as Bray calls it, has been consistently advanced by the Supreme Court and embraced by several prominent scholars. The thesis has intuitive appeal. Because an injunction is a court order, a violation of which can result in a sanction, it seems “stronger” than the declaratory judgment, which only sets out the relative legal positions of the parties.

But Bray pushes beyond and unpacks these standard answers, ultimately finding them wanting. Beginning with the command rationale, Bray examines several scenarios in which a party would likely seek a declaratory judgment. For example, consider an inventor with a product design that she fears infringes another’s patent; since she is concerned about being sued for patent infringement, she brings a declaratory judgment action to determine if the infringed patent is valid. As Bray shows, that a declaratory judgment lacks a command will ultimately be irrelevant in this scenario. If the inventor wins her suit, she can continue with her product design without fear of future suit or liability for patent infringement; if she loses, it is likely in her interest to cease work on the product (as liability for patent infringement involves treble damages). Accordingly, in this, and other scenarios in which parties commonly seek declaratory relief, the lack of a command is immaterial and therefore does not render declaratory relief a “milder” remedy.

Turning to the sanction rationale, Bray once more counters the standard justification for preferring one remedy to the other. While Bray notes that declaratory judgments cannot themselves be the basis for contempt proceedings, the potential for contempt is often irrelevant in the instances in which such judgments are sought. Consider the inventor above: if she loses her suit and can be sued for patent infringement for continuing work on her product, whether she can be held in contempt is just as immaterial as whether the court’s judgment carries with it a command. In both instances, as Bray points out, what motivated the plaintiff to seek a declaratory judgment in the first place—the desire to avoid liability—is the true deterrent. Bray acknowledges that the incentives are different for losing defendants, but convincingly shows that these parties, too, will likely not care about immediate sanctions. Because the Declaratory Judgment Act expressly allows plaintiffs who win declaratory relief to seek injunctive relief either simultaneously or subsequently, any losing defendant will know that the potential for sanctions is only one step away. As Bray concludes, there is no reason to think that the declaratory judgment is any less coercive—and therefore any more mild—than the injunction in actual practice.

After persuasively rejecting the mildness thesis as the difference between declaratory judgments and injunctions, Bray offers two other differences between the remedies: the ability of the court to manage the parties and the timing of the relief. On the first point, Bray clearly delineates how a court can manage parties with an injunction, crafting more detailed orders, responding to difficulties in implementation, and if necessary, responding to any violations. This managerial feature of injunctive relief is what sets it apart from declaratory relief. On the second point, Bray notes that it is theoretically possible to obtain a declaratory judgment earlier than an injunction in the life of a dispute. This is allegedly because an action in which a plaintiff seeks declaratory relief need only satisfy the constitutional ripeness requirement, whereas an action for injunctive relief must also satisfy the requirement of equitable ripeness. As such, Bray writes that an injunction can be understood as a “fruit that sometimes ripens more slowly” than the declaratory judgment. Though as Bray himself cautions, it is difficult to pinpoint the exact moment in the lifecycle of a case when declaratory but not injunctive relief would be available to a plaintiff.

In short, Bray not only persuasively takes down the mildness thesis as the distinction between declaratory judgments and injunctions, but replaces it with a new thesis—one that focuses on the managerial and timing aspects of these forms of relief. Bray therefore makes a great contribution to the literature and also to practice. It shows parties and courts that the primary rationale given for preferring one remedy to another is, in fact, a fiction. If one is choosing between remedies, the decision should be based on the relative need for management and, to a lesser extent, on concerns about timing.

In all, Bray clarifies the differences between two of the most important remedies. He does so by considering how parties use these remedies in the real world, and by considering these remedies together, across multiple areas of law. As such, Bray successfully makes the case not only for new distinctions between declaratory relief and injunctive relief, but also for the field of Remedies more generally. With scholars such as Bray in the field, one can look forward to what we will learn next about how courts can and should make injured parties whole.


Discovery and Democracy

Gillian K. Hadfield & Dan Ryan, Democracy, Courts and the Information Order, 54 European J. of Sociology 67 (2013), available at SSRN.

Discovery has a bad name, and the reason for that is something of a mystery. It certainly isn’t careful empirical evidence. Decades of research have consistently demonstrated that discovery is used appropriately and that in the vast majority of cases its costs are proportionate to the stakes in the lawsuit. Most recently, the Federal Judicial Center’s 2009 study of thousands of closed cases (chosen to maximize the likelihood of discovery) found that at the median, the reported costs of discovery, including attorney’s fees, was just 1.6% of stakes of the case for plaintiffs and only 3.3% for defendants. Discovery’s benefits are harder to quantify, but mutual access to relevant information surely leads to case outcomes that more accurately reflect legal norms. Yet the Advisory Committee on the Civil Rules is once again proposing rule amendments that would limit discovery.

The public discovery debate focuses almost entirely on the instrumental value of discovery to litigants. There are, however, other significant reasons for using the power of courts to compel information exchange. Judicial process as process is crucial to the legitimacy of the legal system because citizens must perceive it to be trustworthy and fair. Hadfield and Ryan’s Democracy, Courts, and the Information Order articulates how the discovery process is fundamental to American democracy: civil courts serve as a place where litigants are formally treated as equals in their ability to demand the sharing of relevant information, even from entities with far more political or economic power in society. The experience of participating in the discovery process is thus part of the “phenomenology of democracy”– the lived experience of being treated as an equal among equals. (P. 88-89.)

Hadfield and Ryan begin with vignettes reminding us that those who file lawsuits are not always or only interested in money; a thorough and public assessment of responsibility, including disclosure of underlying facts, is an essential part of the process. They then couple this reality with Ryan’s concept of a social information order, a system of notification norms that prescribe who is expected to share information with whom. Part of what an information order reflects is hierarchy, because some may be privileged to receive information without giving it, and in some settings the failure to provide expected information can have serious consequences.

While lawyers may not have thought about this bit of sociology, the explanation and examples ring true. Here are some examples of asymmetry: 1) Children must account to parents for their whereabouts and activities, while parents need not share similar information with their children; 2) Employees are obligated to tell those above them in the pecking order what work they have done, to whom they have spoken, and what they have learned, but bosses share information as they wish; 3) Teachers can demand information from students but are not obligated to make reciprocal disclosures.

Equal relationships, on the other hand, come with reciprocal expectations for information sharing. Those expectations are reinforced both with actual disclosures and with meta-messages (“I should have called you sooner.”) Close friends share information that is not shared with strangers, and the failure to share is an indicator of lack of closeness or equality. (P. 72-73.)

Interesting, but how does any of this apply to litigation? To embody the expectations of equality before the law, Hadfield and Ryan argue, courts must implement the kind of information norms that are found in equal relationships.

The paper then demonstrates the effects of a system with an asymmetric disclosure regime – the 9/11 Victim Compensation Fund – using interviews conducted by Hadfield. Those who gave up the right to sue and accepted the settlement – which is almost everyone – expressed regret that by doing so they gave up the opportunity to learn more about what happened and to obtain answers from those they felt were responsible. Moreover, the claimants themselves had to provide significant amounts of personal and financial information. While litigation would have posed enormous obstacles, it would have come closer to information equality: “the bereaved New Jersey housewife and the chief security officer for American Airlines [would be] equals.” (P. 77.)

What is it about courts, and about discovery, that makes a more democratic space possible? In their roles as “plaintiffs” and “defendants,” litigants have broad authority to use discovery devices to compel the disclosure of information in a way that would be impossible outside the courtroom. This authority exists even where, absent litigation, there is enormous inequality of resources and information. In discovery, the “empirically unequal meet as abstract equals.” (P. 83.) And while the information revealed does have instrumental value, Hadfield and Ryan argue that it also has enormous political significance.

Calling on the work of various political theorists, the article contends that equal rights and duties to share information in dispute resolution are necessary to our ongoing experience of citizenship. “[W]e suspect that a political community that denied those lacking the good fortune, material resources, or political influence to obtain the kind of information from another that one expects to obtain from an equal – and allowed those with the good fortune, material resources or political influence to withhold the information one is ordinarily expected to share with an equal – would be one in which it would become increasingly untenable for individuals to conceive of themselves as being even formally equal to one another.” (P. 91.) Conversely, that equality may explain some of the resistance to discovery on the part of those who otherwise are not required to treat others as equals.

The most direct implications of this article are for discovery itself and the rules of discovery. But the authors’ arguments are also relevant to any number of current procedural debates: when should complaints be dismissed for failure to plead sufficient “facts” without an opportunity for discovery; when should courts consign disputes to arbitration systems with extremely truncated or one-sided information exchange; and when does our zeal for efficiency and case management get in the way of the equalizing effect of the judicial process? This intriguing article can help procedure reformers remember the world beyond case-specific costs and benefits and focus on the special role of courts and dispute resolution in a democracy.


Trans-Substantivity Beyond Procedure

David Marcus, Trans-Substantivity and the Processes of American Law, 2013 B.Y.U. L. Rev. 1191.

Whether the Federal Rules of Civil Procedure should be trans-substantive (as they ostensibly are) has been hotly debated since the Rules’ inception.  One wonders, after three-quarters of a century, if another article examining this central tenet of the American civil litigation system can make a unique contribution to the literature. David Marcus’s recent article, Trans-Substantivity and the Processes of American Law, demonstrates that the answer is “yes.”  Building on his excellent 2010 article, The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure, Marcus challenges proceduralists to broaden their examination of trans-substantivity beyond the confines of civil procedure law.

This article examines the principle of trans-substantivity in the context of what Marcus calls “process law” —which includes not only procedural law, but administrative and interpretive law as well.  Marcus uses the Supreme Court’s 2009 decision in Ricci v. DeStefano to illustrate how the Court may draw upon federal civil procedure, federal administrative law, and statutory interpretation doctrine in a single case.  He draws upon this example to encourage scholars not to cabin their understanding of the pros and cons of trans-substantivity to a single species of process law.  The interrelationship and overlap of these doctrines are significant.

Drawing on history, Marcus explains some of the forces that prompted trans-substantivity in the various types of process law.  As it turns out, procedural and administrative doctrine share parallel histories that help to explain the development and endurance of trans-substantivity for both.  As the American legal system grew in complexity, the need for litigation and public administration regulation norms increased.  Trans-substantivity firmly took root in the 1930s, post-New-Deal, and became even more entrenched following World War II.

Situating trans-substantivity in this broader context, Marcus defends the principle’s longevity and future maintenance.  His defense grows out of a comparative analysis of institutional competence.  In the context of court-made process, trans-substantivity is the norm. Marcus argues that this is appropriate in light of the judicial branch’s institutional deficiencies in three areas: legitimacy, competency, and effectiveness (coordination).  Trans-substantivity addresses these deficiencies so that courts can appropriately create and administer process law.  He defends this normative principle, relying on a number of compelling values.  For example, trans-substantivity requires that a certain generality be applied to all cases.  This reduces the effect of potential political influence and bias, and enhances access for generalist lawyers.

Marcus does not deify trans-substantivity, however.  To his credit, he recognizes that trans-substantivity can be over-inclusive.  Admittedly, some rules are nominally trans-substantive, yet their routine application generates different outcomes for different substantive areas of law.  The disparate impact of summary judgment procedure on employment discrimination cases is a good example.  He also grants that “substance-specific doctrines may … respond to dysfunctions from which legal processes involving particular antecedent regimes tend to suffer.” (P. 1221)

But Marcus cautions decision-makers who consider deviating from the trans-substantivity norm to undertake a contextualized analysis of the costs and benefits.  Building on his analysis of trans-substantivity within “process law,” he offers a method for evaluating when a particular doctrine should adhere to the principle and when it should be exempt.  With this broader lens through which to examine trans-substantivity, he creates a general metric for evaluating the legitimacy of judge-created substance-specific process law.

When considering the propriety of court-created substance-specific procedural doctrine, Marcus emphasizes the goals of fidelity and institutional efficacy—although he recognizes other important goals of process law, such as fairness. (P. 1242)  Marcus contends these goals help courts overcome legitimacy, competency and coordination limitations.  With respect to fidelity, Marcus makes a distinction between judges who depart from the trans-substantive norm to better realize the policy objectives of an antecedent regime and those who depart from the norm to interfere with those objectives.  He argues that substance-specific rules motivated by the former rather than the latter are more justifiable.  As to institutional efficacy, Marcus contends that process law may depart from the trans-substantive norm to address limitations or flaws in the institutions involved in legal processes.  This includes attempts to address inefficiencies, poorly reasoned deliberations, and comparative institutional incompetence, among others. Marcus adeptly grapples with these values of fidelity and institutional efficacy—individually and in combination—to justify departures from the trans-substantive norm.

Marcus’s work continues to offer clarity and context to the examination of trans-substantivity.  He challenges proceduralists to stretch our understanding of this enduring principle and the circumstances in which departures are warranted.  This article makes an important and thoughtful contribution to the literature.


Federalism and Mass Tort Litigation

Fair and global resolutions to mass tort claims are not easy to achieve. Aggregation of claims, either through a formal class action or perhaps through multi-district litigation (“MDL”) consolidation, has been a key feature of mass tort litigation for several decades. In an MDL, related cases filed in federal court may be consolidated before a single judge for coordinated pre-trial proceedings, including settlement. The benefits and limitations of aggregation generally, and the MDL device itself, have been the subject of numerous academic papers. American federalism places a stumbling block in the way of complete aggregation – the presence of related but non-removable claims pending in state court, which cannot be part of that consolidated federal action.

While many scholars have viewed non-removable claims as a limitation on the success of aggregation, surprisingly few have tackled the issue head on. Maria Glover provides a thoughtful and thorough investigation of this problem in Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-Removable State Actions in Multi-District Litigation. Unlike scholars who have come before her, Glover does not dismiss the issue as an annoying yet intractable problem, although she does not purport to “solve” it. Rather, her article is a fresh and inventive take on this problem, in which she suggests that the presence of non-removable state actions might actually be beneficial to the resolution of mass tort claims.

Champions of aggregation have promoted complete consolidation of related claims on the theory that a global peace is difficult to achieve when defendants face the uncertainties of resolving parallel claims, and that the global settlements that parties reach in such cases lack in fairness and legitimacy because they do not account for the voices and needs of all possible claimants. Glover argues that these parallel claims need not necessarily block global settlements nor detract from their legitimacy. Instead, “the non-removable state cases, used as test cases, would provide information about what actually happens when these cases are litigated in front of the relevant state judge and tried (where applicable) before a jury pooled from the relevant geographic area.” In other words, non-removable state actions provide important data, not just about circumstances and values of individual claims under the relevant state substantive law, but about how such claims interact with the nuances of local practice and procedure.

Because federalism is one of the major stumbling blocks to complete and seamless aggregation (both in terms of jurisdiction over claims and in terms of a unified answer to choice-of-law problems), scholars have assumed that federalism must be part of the solution, either by adjusting federalism theory to accommodate greater consolidation, or by using current federalism theory to justify current allocations of jurisdiction. Glover’s main insight respects “happenstantial federalism,” the idea that “federalism may foster conditions that would aid in mass litigation governance, but those conditions do not stem from the typically cited purposes or values underlying federalism itself.” That is, the jurisdictional facts that render such claims non-removable are immaterial to their value as information for a global settlement. The values of federalism should not lead judges or scholars to accord either greater or lesser weight and legitimacy to these decisions. It is the mere fact of federalism and not the reason of federalism that has assigned such claims to a place outside of an aggregation. The outcomes of these cases, both in terms of substantive legal rulings and in terms of award values, can provide valuable information for the settlement grids that are frequently used in global settlements of mass tort cases.

At one level, the idea of happenstantial federalism is rather benign and obvious: of course it is the case that our federal structure creates circumstances and consequences that are unrelated to the core values of federalism. But Glover is suggesting something deeper than that. Her insight is that once these particular benefits of federalism are recognized as being “happenstantial,” we are no longer tied to the values of federalism in defining and justifying these benefits. For a scholar such as Robert Post, the pendency of non-removable state court claims was part of a larger system of “jurisdictional redundancy,” a powerful concept, but one that relied heavily on federalism values for its overall force and cohesiveness. For Glover, however, the benefits of non-removable state claims are purely instrumental. Thus, their use can be purely instrumental, rather than shoehorning those benefits into a framework of federalism values—values that, frankly, are of little relevance to the utility of state court cases as additional data points in a global settlement grid. Unmoored from the restraints of justification within the theoretical framework of federalism, Glover is free to suggest that state court resolution of cases can enhance the legitimacy of global federal settlements simply because of the data that the state court cases produce.

The main barrier to optimal instrumental use of such data is that the state court cases that produce results – whether in the form of judicial disposition on the merits, trial verdicts, or settlements – are not chosen according to any statistical sampling method. They are, by their very nature, “happenstantial.” Glover notes this limitation and suggests further inquiries and studies into how such random data might be harnessed in a statistically rigorous fashion. Students of law and economics would do well to take up this invitation; together with Glover’s theoretical work, it could provide a powerful advancement in how lawyers, judges, and academics view and structure complex litigation that cannot be consolidated into a single forum.


Distinguished Precedents

What is the scope of precedent? It is a fundamental question in American law that has proven difficult to answer with precision. As courts, especially the Supreme Court, have increasingly crafted long, often rambling, opinions, it has become more difficult for other courts to interpret such judgments. Adam Steinman’s recent article, To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis, offers a key insight and valuable contribution toward explaining how courts should apply prior precedents to new facts.

The basic distinction Steinman draws in understanding stare decisis is between the rules stated by the precedent-setting court and the results reached by the precedent-setting court. In focusing on results (what Steinman terms “inferential stare decisis”), a court justifying its present judgment must reconcile its holding with the outcome of every precedential court opinion. Steinman, in contrast, argues that courts should not be obligated to conform their decisions with the results of prior binding opinions, but rather must follow the rule(s) articulated by the prior court. This approach decreases the constraining effect of prior decisions in one way, but increases their constraining effect in another. Future courts are less constrained in that they are not required to reconcile their decisions with the mere results of earlier ones. But they are more constrained in that, where the precedent-setting court has stated a rule, the future court cannot simply point to factual differences between the two cases and disregard the rule entirely. It would need to articulate a distinguishing rule that justifies a different result.

Steinman focuses his discussion on two recent high-profile Supreme Court procedure cases: Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal. Both cases have been attacked as creating “bad law,” but Steinman contends that the problems those cases create presume a particular approach to stare decisis. Steinman’s argument is widely applicable to a range of substantive areas. And because you can simply read the article (Section II) to appreciate the careful analysis of the precedential components of the majority opinions from those two cases, I want to illustrate the value of his normative perspective by applying it to another highly salient opinion with a longer timeframe of application: Lawrence v. Texas. Whereas Steinman’s examples show the danger of using inferential stare decisis to magnify a decision’s precedential effect, Lawrence provides an example of courts using such an approach to give precedent an unusually narrow interpretation.

At the time the Supreme Court decided Lawrence in 2003, many thought it represented a sea change in protecting sexual liberty. From the perspective of the rights of LBGT persons in America, the symbolic effects were surely significant. Although the majority opinion by Justice Anthony Kennedy is not a model of clarity, there should be little doubt that laws like the Texas anti-sodomy statute were found constitutionally infirm. As Justice Kennedy wrote: “The question before the Court is the validity of a Texas statute… [It] furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” And yet, over a decade later, the types of stare decisis problems Steinman articulates are manifested in lower courts application of Lawrence to sexual liberty cases.

In cases involving minors, prostitutes, people engaged in BDSM relationships, and rape, courts have repeatedly allowed prosecutions under the type of anti-sodomy statutes Lawrence invalidated by implicitly adopting the theory of inferential stare decisis Steinman criticizes. For example, in 2005, in State v. Pope, a North Carolina appellate court rejected a Lawrence challenge to the state’s anti-sodomy statute. In that case, an undercover police officer asked Teresa Darlene Pope for oral sex in exchange for money (to which she agreed). Prosecutors charged Pope not just with solicitation of prostitution, but also solicitation of crimes against nature because the act agreed to was sodomy (oral sex). Pope pled guilty to the prostitution charge, but argued that Lawrence barred enforcement of the anti-sodomy statute. The court rejected Pope’s argument because it viewed the Lawrence holding as inapplicable to prostitution; therefore, it did not violate the Constitution to apply the anti-sodomy statute to “the solicitation of a sexual act it deems a crime against nature.”

The North Carolina court’s interpretation of Lawrence fits squarely into the situations that Steinman’s proposal avoids. The judge read Justice Kennedy’s proclamation in Lawrence from a results perspective. That is, if commercial sex was not at issue in Lawrence, then Lawrence does not prohibit using an anti-sodomy statute against a prostitute. However, if the court had simply followed the rule of Lawrence, it would have found that the anti-sodomy portion of the North Carolina crimes against nature law, which was founded upon historical animus infringing upon sexual liberty, is necessarily unconstitutional under the Due Process Clause of the Fourteenth Amendment. Under a correct understanding of Lawrence, the prostitution charge would be constitutionally permissible, but prosecution for violating the anti-sodomy law would not. Instead, states with anti-sodomy laws have continued to enforce those statutes in cases with facts distinguishable from those in Lawrence.

What Steinman has offered is a rubric for analyzing and criticizing questionable past applications of precedent and a tool for fairly and consistently applying precedent in the future. Because of its value, I wanted to show, in my brief writing here, its applicability well beyond the two instances he articulates. Indeed, I would venture to guess that many instances of misapplication of precedent known to you, the reader, would be better understood through the theoretical lens proffered by Steinman. In the end, the problems of stare decisis will not disappear if courts take Steinman’s suggestions seriously. However, the rule-based approach Steinman proposes would go a long way toward addressing the most substantial issues in defining the scope of precedent.