The Journal of Things We Like (Lots)
Select Page

Monthly Archives: November 2013

Substance, Procedure, and the Interdependence of Gatekeeping Standards Across Multiple Stages of Litigation

Louis Kaplow, Multistage Adjudication, 126 Harv. L. Rev. 1179 (2013).

Legal reasoning is often a reductive enterprise that enables lawyers to address a difficult question by positing a series of constitutive questions.  Dissecting vexing problems into more manageable components fosters analytical precision.  But precision comes with a risk of overlooking connections between seemingly discrete issues.  Each isolated inquiry may develop a life of its own that obscures their collective interdependence.

This phenomenon of distorting problems by isolating them is evident in the legal academy’s approach to the study of procedure and the judiciary’s approach to resolving disputes.  Law schools generally do not offer courses in “procedure,” focusing instead on subsidiary fields such as criminal procedure, administrative procedure, and civil procedure.  Within each field, coverage further dissolves into distinct topics.  Students may occasionally explore “civil procedure” in the abstract, but more often will study narrower subjects such as pleading, discovery, and summary judgment.  Scholarship often mirrors these divisions, coalescing into distinct literatures analyzing discrete aspects of litigation.  Judicial opinions likewise rarely consider procedure as an undifferentiated whole.  Instead, decisions address motions tailored to particular phases of litigation.

The urge to simplify complex problems—such as how to manage adjudication—by dividing, categorizing, and rearranging their components is understandable and often unavoidable, but creates a risk of essentialism.  If pleading and summary judgment are distinct topics in casebooks, law review articles, and judicial opinions, one can be lulled into believing that they are completely distinct concepts.  Likewise, if civil procedure and administrative procedure are separate courses, and if both are separate from torts and contracts, one might assume that the values and aspirations animating each subject do not overlap.  Lawyers may conclude that procedural problems are fundamentally different than substantive problems and that evaluating the sufficiency of a pleading presents fundamentally different issues than evaluating a motion for summary judgment.

Commentators have long recognized and attempted to combat the allure of essentialism in efforts to structure legal analysis of complex questions.  Louis Kaplow’s article Multistage Adjudication is a fascinating addition to that literature and a welcome contribution to discourse about the optimal form and function of rules governing adjudication.

Kaplow contends that standards used to winnow claims as adjudication progresses through multiple stages must recognize the interdependence of each stage and the overlapping goals of substantive and procedural rules.  Rulemakers should not rely on traditional doctrinal boundaries, but must instead rethink the path of adjudication from beginning to end with an eye toward the substantive ideals that procedures implement.  The article considers several types of formal and informal adjudication in widely varying settings, ranging from civil and criminal litigation in courts, to investigations by law enforcement agencies and regulators, to administrative review of licensing applications and proposed mergers.  From Kaplow’s perspective, the objectives and features of adjudication transcend doctrinal categories and institutional contexts that typically limit comparative analysis.  This insight is itself a helpful reminder that common themes permeate distinct forms of adjudicatory procedure.  But I will focus here on civil litigation, to which Kaplow devotes his most sustained and detailed scrutiny.

The article defends and builds on three central premises.  First, civil cases on a path to final judgment must transit multiple gateways where judges have discretion to either terminate the case or allow it to continue.  For example, judges can grant or deny a motion to dismiss, for summary judgment, or for judgment as a matter of law.  Second, termination/continuation decisions occur under conditions of uncertainty, but judges acquire progressively more information as a case advances through successive gateways.  Third, the existence of uncertainty requires judges at each gateway to balance competing risks linked to the social costs of erroneous decisions.  Premature termination of strong claims undermines the deterrent force of substantive laws by signaling that an obligation or entitlement may be difficult to enforce.  But allowing weak claims to continue imposes needless litigation costs.  Misplaced costs in turn chill protected conduct by signaling that legal immunities may be ineffective, leading prospective defendants to mitigate exposure to meritless claims by modifying their behavior.

These foundational observations draw from existing scholarship, but Kaplow blends them into two original contributions that entail rethinking the relationship between ostensibly distinct types of rules.  He defends his conclusions in great detail with many subtle nuances and caveats.  The simplified account in this review focuses on his basic argument.

Kaplow first concludes that standards governing termination/continuation decisions at each gateway should be interdependent.  This interdependence arises because the marginal effect on deterrence or chilling that is appropriate at any given gateway is a function of how much deterrence and chilling occurs at the others.  From an ex ante perspective, actors considering the probability of being correctly sanctioned or improperly subjected to prolonged litigation must consider the aggregate affect of screening standards at all gateways.  Standards governing each gateway must account for the others to ensure that the aggregate effect is optimal.  Likewise, the value of producing additional information by allowing a case to continue in part depends on how later stages will assess that information.  The decision to allow a case to continue (e.g., by denying a motion to dismiss) might hinge on predictions about what will happen at the next stage (e.g., discovery) and how events at that stage will influence application of later screening standards (e.g., summary judgment).  These interdependencies suggest that a rulemaker choosing between a relatively strict or lenient standard for termination/continuation decisions cannot focus solely on the supposedly essential characteristics of a particular litigation stage.  Instead, whether a screening rule should be strict or lenient depends in part on the strictness or leniency of prior and subsequent screening rules.

A second conclusion is that termination/continuation standards elide categorization as either substantive or procedural.  At each gateway, a court’s analysis of how screening standards affect deterrence and chilling will depend on the content of claims and defenses.  Relevant factors include the difficulty of proving various kinds of claims and the importance of preventing or protecting various types of conduct.  A screening rule therefore might seem to be transsubstantive because it applies in all civil cases, yet may include factors that lead to varying outcomes in different contexts.  Standards for assessing these factors have both substantive and procedural characteristics because they influence ex ante behavior while managing adjudication.  Likewise, screening standards that overtly retreat from pure transsubstantivity by emphasizing context-specific factors—such as the heightened pleading requirement in the Private Securities Litigation Reform Act—can be conceptualized as creating substance-sensitive procedural law or process-sensitive substantive law.  Either way, distinctions that Kaplow treats as “semantic[]” should not distract from the underlying problem, which is the difficulty of crafting screening standards that optimally balance deterrence, adjudication costs, and chilling.

Kaplow is candid about the limits of his analysis.  His goals are “clarifying thought, expanding perspective, and raising alternatives rather than establishing correct legal interpretations or advocating particular reforms.”  The ambitious scope of his project leads him to rely on simplifying assumptions.  The ensuing crisp formulas abstract away the practical challenges of drafting broadly applicable rules and applying them to the messy and uncertain facts of individual disputes.  Moreover, Kaplow’s assumption that substantive and procedural law share a single goal of maximizing social welfare leads him to omit other potentially relevant goals, including promoting values addressed in the literature on “procedural justice.”  (The word “justice” is notably missing from the 120-page article.)  These additional values might be important in their own right, or as new factors in a social welfare calculus that Kaplow limits to only three variables: deterrence, chilling, and adjudication costs.  Rulemakers might therefore agree with Kaplow’s conclusions that gatekeeping standards should consider substantive and procedural factors and should be interdependent, yet question whether his criteria for optimizing those standards are complete.

Limits aside, Kaplow’s analysis is pathbreaking.  Discourse about gatekeeping often bogs down in the perceived idiosyncrasies of distinct litigation stages.  Kaplow shows that the relevant context is the act of gatekeeping itself and that many of the relevant inquiries transcend traditional doctrinal categories.  His nuanced account of how rulemakers should define and implement these inquiries invites rethinking of hotly contested questions such as how to assess the sufficiency of a pleading, when to allow discovery, and whether to grant summary judgment.  The article is thus an innovative catalyst for multiple literatures.

Cite as: Allan Erbsen, Substance, Procedure, and the Interdependence of Gatekeeping Standards Across Multiple Stages of Litigation, JOTWELL (November 20, 2013) (reviewing Louis Kaplow, Multistage Adjudication, 126 Harv. L. Rev. 1179 (2013)), https://courtslaw.jotwell.com/substance-procedure-and-the-interdependence-of-gatekeeping-standards-across-multiple-stages-of-litigation/.

Police Don’t Pay

Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. ___ (forthcoming 2014).

Whenever I teach criminal procedure I arrange for a police officer to talk to my students.  It’s always a fascinating class.  I remember one time in particular when a student asked an officer whether the officer would be more unhappy if evidence he found was excluded from trial on Fourth Amendment grounds, or if he faced personal liability in a civil damages suit under section 1983 for a Fourth Amendment violation.  With absolutely no hesitation, the officer said that he would be much more unhappy if he had evidence excluded in a criminal case, and that he simply didn’t worry about section 1983 because an occasional lawsuit was par for the course.

At the time, I thought it was a surprising answer and so did my students.  Wouldn’t most officers be more concerned about a lawsuit that could expose them to personal financial liability?  That assumption seems to have driven much jurisprudence in the constitutional litigation arena—for example, the doctrine of qualified immunity is premised on the notion that officers need breathing room to do their jobs without worrying incessantly about crippling financial liability.

After reading Professor Joanna Schwartz’s article Police Indemnification, however, the officer’s response began to make a lot more sense to me.  Through detailed empirical research, Schwartz provides an unprecedented contribution to our understanding of the practice of indemnification of police officers by the jurisdictions that employ them.  One of the most impressive features of her research is its scope:  Schwartz sent public records requests to seventy of the largest police departments and law enforcement agencies, seeking information about the amount spent in judgments and settlements from 2006 to 2011.  She followed up on these public records requests with emails and phone calls to risk managers, city attorneys, city council staff, city clerk employees, and plaintiffs’ attorneys in the relevant jurisdictions, ultimately obtaining useable data from forty-four jurisdictions that included twelve of the country’s twenty largest law enforcement agencies and nearly 20% of the country’s sworn law enforcement personnel.

Professor Schwartz’s data yield a stark finding:  police officers are virtually always indemnified.  Officers contributed to judgments in just 0.44% of the 8600 civil rights settlements and judgments to plaintiffs, and their contributions amounted to a mere 0.02% of the $760 million that states, cities, and counties paid out in these cases.  And even in cases involving punitive damages—where the officers’ conduct was presumably most egregious—officers paid only 0.005% of the $3.8 million in punitive damages judgments entered against them.

Using the same methodology, Professor Schwartz is in the process of contacting 70 small and midsize jurisdictions. As of the most recent draft, she had heard from 30, and the number will likely increase by the final draft. In every known instance, these jurisdictions indemnified their officers as well.

One of the most remarkable findings is that governments often indemnified officers even when indemnification was directly prohibited by statute. For example, municipalities frequently indemnify for punitive damage awards, even when the relevant statute expressly forbids such payment. Even when officers were terminated or sanctioned by their employers, the officers still generally did not contribute financially to the judgments against them.

Despite the likelihood of indemnification, Schwartz also found anecdotal evidence that municipalities use the possibility of a refusal to indemnify as leverage in settlement negotiations with plaintiffs, even if the municipality almost inevitably indemnified the officer in the end.  In keeping with the careful approach of her overall project, Schwartz takes no position on whether attorneys for municipalities deliberately inflate the possibility that they will not indemnify an officer to pressure plaintiffs to accept settlement agreements.  Given the starkness of the overall data, however, it seems to me that in some instances such leveraging is, at a minimum, quite misleading.

Schwartz’s work is important both because it fills a gaping empirical hole in the literature and because it runs counter to many of the assumptions that courts have made when deciding issues relating to monetary claims against law enforcement officers.  The contours of the doctrines of qualified immunity, municipal liability, and punitive damages, among others, have evolved as they have in part because courts have assumed that at least some of the time officers pay out of their own pockets when they are sued.  So Schwartz’s striking empirical evidence to the contrary should prompt courts to rethink these doctrines and litigators to reexamine their strategies.  Indeed, her work provides an impressive example of precisely how useful and practical legal scholarship can be.

Of course, all research has its limits, and some questions bear further examination.  For example, Schwartz suggests that perhaps the concern of over-deterring police officers in doing their jobs is less important than we thought it was, given that most officers can likely count on indemnification.

But other factors arguably (over-)deter police officers as well.  For example, even an officer who is 100% certain that he will be indemnified still may desperately wish to avoid the stress, publicity, and personal exposure of a lawsuit.  I suspect that at least some officers would pay some amount of money in order to avoid the psychological and administrative hassles of personal-capacity litigation. And even when an officer is more than 99% sure that he will not have to pay, statistical unlikelihood does not always yield reassurance or prevent over-deterrence. (If it did, then far fewer people would struggle with fears of flying or avoid flying altogether.)

Future research might usefully examine the perceptions of officers themselves.  What percentage of police officers know that they’re extremely unlikely to end up paying out of pocket for civil rights violations?  Do they even know that a personal judgment in a civil rights suit is a theoretical possibility?  If officers don’t know, then perhaps Schwartz’s findings have less impact on deterrence than we might expect, despite their many other troubling implications.

I hope that future research will take an empirical approach to these and other important questions.  For now, Schwartz’s work provides an important contribution to an area that has long cried out for empirical examination.  Courts, commentators, governmental agencies, litigators, and police officers would do well to read her work and consider carefully its implications.

Cite as: Nancy Leong, Police Don’t Pay, JOTWELL (November 7, 2013) (reviewing Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. ___ (forthcoming 2014)), https://courtslaw.jotwell.com/police-dont-pay/.