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Monthly Archives: March 2016

Redefining Efficiency In Civil Procedure

Brooke D. Coleman, The Efficiency Norm, 56 B.C. L. Rev. 1777 (2015), available at SSRN.

In his year end report, Chief Justice Roberts stated that the 2015 civil procedure amendments were “to address the most serious impediments to just, speedy, and efficient resolution of civil disputes.” Roberts clearly was referring to Rule 1 of the Federal Rules of Civil Procedure, which states that the rules are to be interpreted to achieve a “just, speedy, and inexpensive determination.” In other words, Roberts equated efficiency with inexpensive. The Chief Justice’s comment illustrates the “efficiency norm” problem that Professor Coleman has addressed in her noteworthy article. The courts, the rulemakers, and Congress have defined efficiency too narrowly, and this definition has resulted in fewer trials and an anti-plaintiff bias.

In her article, Coleman considers the important question of how the concept of efficiency should affect litigation. She first recognizes that the number of cases filed in federal court has increased significantly since the rules were adopted in 1938—some of this as the result of the creation of new substantive rights. This phenomenon has lead to criticism of the litigation system. Influenced by and participating in this criticism, the institutional actors of the rulemakers, the judiciary, and Congress have promoted “the efficiency norm.” Under this mandate, they make changes in the name of efficiency and focus on just cost—more specifically on only certain costs—the costs to corporate or governmental defendants.

Coleman aptly illustrates how institutional actors have employed this norm. For example, in their recent decision to change the discovery rule to add proportionality as a consideration, the rulemakers focused on cost to defendants and failed to consider the possible costs to plaintiffs of not receiving necessary discovery. Similarly, in TwomblyIqbal, and Concepcion, the Supreme Court discussed only the costs to businesses, not the effect of the possible changes on plaintiffs such as having more cases dismissed without the opportunity to receive important discovery. Finally, Congress also has narrowly viewed efficiency. For example, the Prison Litigation Reform Act intended to decrease the costs of frivolous litigation to the federal courts but did not consider the possible cost to prisoners with meritorious claims that may be dismissed.

Coleman makes the important point that the procedural changes made in the name of efficiency or cost may not even lessen costs. For example, the new proportionality rule may increase discovery motion practice and thus costs.

Coleman also critiques how the efficiency norm is conveyed. Extensive efforts have been made to broadcast a view about the high costs of litigation to the public without also showing the other costs and benefits of litigation. While Coleman recognizes the difficulty of quantifying these other costs and benefits, she rightly argues that regardless of these problems, the other costs and benefits must be presented and considered to accurately examine the question of efficiency. Moreover, she notes that the costs to defendants are often “cherry-pick[ed]” or exaggerated—all resulting in an incomplete picture of litigation.

As previously mentioned, Coleman asserts that the efficiency norm has contributed to two presumptions in our modern litigation system. Although the original system valued trials and was receptive to plaintiffs, now, non-trial adjudication is favored over trials and there is skepticism towards plaintiffs. For example, the new proportionality rule’s focus on less discovery without viewing what plaintiffs actually need for trial disfavors trial and plaintiffs.

Coleman goes on to argue that modern adjudication is now de-democraticizing our civil justice system. Public adjudications including those that employ the public as jurors are rare. Moreover, it is difficult for a regular citizen to litigate a dispute in court. These changes create losses, including public benefits. People or companies may not abide by the law because the threat of consequences is not as great as in the past.

According to Coleman, these changes are connected to a larger issue in civil procedure—the shift from a liberal ethos to a restrictive ethos—a problem about which Professors Rick Marcus and Benjamin Spencer have written. In other work Coleman has explained that while benefiting corporations, government, and other entities, this restrictive ethos has caused certain plaintiffs—who are economically or culturally disadvantaged—to vanish.

Coleman argues that efficiency norm should be redefined. She states “efficiency—as applied to civil litigation—must take account of all of the potential costs and benefits.”

Whenever efficiency or costs are mentioned, Coleman’s words should be heeded. The rulemakers, the courts, and Congress should look at all of the potential costs and benefits.

If you are interested in Coleman’s arguments, you should also read The Perverse Effects of Efficiency in Criminal Process. There, Darryl Brown has written about how this concept of efficiency affects our criminal system, emphasizing that particular costs have been stressed and the appropriate costs and benefits have not been examined.

Cite as: Suja A. Thomas, Redefining Efficiency In Civil Procedure, JOTWELL (March 30, 2016) (reviewing Brooke D. Coleman, The Efficiency Norm, 56 B.C. L. Rev. 1777 (2015), available at SSRN), https://courtslaw.jotwell.com/redefining-efficiency-in-civil-procedure/.

Should We Publish All District Court Opinions?

Elizabeth McCuskey, Submerged Precedent, 16 Nev. L. Rev.  ___ (forthcoming 2016), available at SSRN.

In Submerged Precedent, Professor Elizabeth McCuskey unearths new data on the rate of remand from federal to state courts in suits alleging 28 U.S.C. § 1331 jurisdiction under a Grable & Sons theory. As part of her vigorous data collection project, McCuskey determined that substantial numbers of the district court opinions she studied never found their way into commercial databases or PACER, substantially skewing our understanding of caselaw in this area. From this starting point, she launches into an intriguing normative discussion on the need to bring this body of “submerged precedent” to the surface. She concludes with a call for a strong presumption that all reasoned district court opinions be made publically available. For those of us who study the federal courts, Submerged Precedent’s raises intriguing empirical and doctrinal questions to which we should turn our attention.

McCuskey’s study focuses upon a particular method of taking § 1331 jurisdiction in federal court. The vast majority of cases take § 1331 jurisdiction under the so-called Holmes test (i.e., vesting § 1331 jurisdiction because the plaintiff raises a federal cause of action). There exists, however, a narrow exception to the Holmes test whereby federal question jurisdiction may lie over state-law causes of action that necessarily require construction of an embedded federal issue. McCuskey focuses her work on these cases, seeking to discover the rate at which suits removed to federal court under that theory are remanded from to state court.

Instead of taking the typical appellate-court focused approach to this question, McCuskey looks solely to district court action. Her chosen jurisdictional issue is especially ripe for a district-court-focused study because, contrary to the general rule, these jurisdictional remands are not subject to appellate review. As a result, this area lacks much on-point appellate precedent.

In conducting her examination, McCuskey studies two districts, the Eastern District of Virginia and the Northern District of Illinois, looking for all remand opinions in Grable & Sons-style cases from 2002 to 2008 (hence studying activity both immediately before and after the 2005 Grable & Sons decision). Key to her study was reaching beyond both commercially available databases (e.g., Westlaw and Lexis) and the publically available data on the federal PACER system, which generally mark the boundaries for empirical judicial-work-product studies. As McCuskey details, not every district court action makes it to the publically available data on PACER, regardless of whether one is accessing for free or in the fee-driven service. In her data set, she pulls all decisions directly from dockets, a difficult collection process to say the least. Indeed, I believe her work to be the only empirical study addressing federal-court jurisdictional issues that relies upon this robust a data set.

Having collected this data, McCuskey reveals that our typical reliance upon non-docket-sourced data skews our understanding of jurisdictional decisions. She found that if one limits the data set of remand decisions to Westlaw, publically available data on PACER, and the like, it would appear that her targeted set of cases—state law causes of action with embedded federal issues—are remanded at a 62% rate. Her direct-docket-pull study, however, found that the remand rate was actually 76% for these cases. The difference between those numbers represents a body of cases that fall through the cracks in the move from the direct-docket-pulled rulings in her study to the more traditional data sources of Westlaw and publically available data on PACER. This is what McCuskey labels submerged precedent and aims to raise to the surface.

Having discussed these empirical findings and the methods used, McCuskey turns next to a normative analysis. She discusses why district court opinions, while not binding precedent, are of great value to the legal system and why docket-only decisions run counter to important rule-of-law norms such as legitimacy, transparency, equal application, consistency, and efficiency. As part of this discussion, McCuskey argues for reform. She contends that there should be a strong presumption that all reasoned decisions—as opposed to non-reason-giving minute orders—should be made publicly available. Here she relies upon the E-Government Act of 2002 as a positive-law foundation to further her normative position that rule-of-law norms require access to all sources of law, including non-precedential district court decisions.

McCuskey’s piece demands our engagement on many levels. The overwhelming study of judicial activity, and precedent in particular, focuses upon appellate decision-making. Yet, trial courts conduct the vast majority of judicial activity. This mismatch of scholarly attention and judicial activity is all the more apparent in analyses of jurisdiction. McCuskey bucks this trend. Submerged Precedent is the second, in what I hope is a long-lived series, of pieces addressing federal trial court precedent on jurisdictional issues. The fact that she takes an empirical bent, and one with novel collection practices no less, only adds to the value of the piece.

Moreover, McCuskey’s work is deeply thought provoking. I, for one, question whether her data set is limited by selection bias on a couple of scores. First, she examines two high-population, urban districts. I am not sure if this population issue matters in jurisdictional opinions, but it certainly might. Second, her cases (remand cases) are unique in that appellate review is not available. I, at least, am concerned that this fact may impact how decisions are written and the rates at which they are “submerged” vis-à-vis matters subject to appellate review. Finally, I am curious if the application of more robust empirical methodologies, when coupled with her robust collection, could yield more information from her data sets.

On the normative side of her piece, McCuskey tends to make claims about the value of “un-submerging” precedent generally based upon data from a limited slice of remand cases that are not subject to appellate review. These cases certainly make for the strongest case for full publication. But I question if the same cost-benefit analysis holds in matters where we have a robust set of appellate decisions—say, in suppression-of-evidence cases. Because appellate courts make publically available near all of their rulings (both in “published precedential” and “non-precedential” forms), in areas such as suppression, there are already thousands upon thousands of opinions such that the addition of new district court rulings would seem to add little from a rule-of-law perspective.

Additionally, while she addresses the topic, one could question whether McCuskey appropriately values the importance of not making precedent. Much of what district courts do is exercise discretion. That is to say, what they are after often is not easily captured in the values of consistency and equal application on which McCuskey focuses. From this vantage, perhaps exercises of discretion should be submerged. Indeed, her data set of jurisdictional remands, which are more rule-bound decisions than exercises of discretion, does not reach this issue in a way that is equally germane in other areas of law.

Finally, I remain curious how judges would react to the full-publication regime McCuskey advocates. Judges might resort more often to orally delivered, less-reason-giving rulings so as to avoid publication, both to avoid the time investment required in publication and the potential that published decisions would hem in the judge in future cases. I, for one, fear that such an outcome is likely, which would be a disservice to parties at little added benefit to the system.

In the end, all these potential criticisms really show is that McCuskey is a provocative and engaged scholar. Her work fills critical gaps in the jurisdictional literature in a meaningful way. I am sure, therefore, you will learn much from her scholarship. I certainly have.

Cite as: Lumen N. Mulligan, Should We Publish All District Court Opinions?, JOTWELL (March 16, 2016) (reviewing Elizabeth McCuskey, Submerged Precedent, 16 Nev. L. Rev.  ___ (forthcoming 2016), available at SSRN), https://courtslaw.jotwell.com/should-we-publish-all-district-court-opinions/.

On Being Mostly Right

Samuel Bray, The Supreme Court and the New Equity, 68 Vand. L. Rev. 997 (2015).

Close only counts in horseshoes, hand-grenades, and the Supreme Court’s recent treatment of equitable remedies. So says Samuel Bray in The Supreme Court and the New Equity, where he defends fourteen Supreme Court decisions decided from 1999 to 2014 that are fraught with errors and frequently criticized, which Bray labels “the new equity cases.” The equity in these cases is “new” in two ways. First, it maintains a clear distinction between equitable and legal remedies by entrenching the “irreparable injury rule,” or the requirement that there be no adequate remedy at a law before a judge consider equitable relief. Second, it seeks to control judicial discretion by adhering strictly to the history of equitable practice, and drawing from that history rules and multi-part tests to guide the application of equitable relief.

“It is not easy to imagine,” Bray writes, “anything further from the conventional scholarly wisdom than” the doctrinal developments of the new equity cases. (P. 1008.) For one, experts had long celebrated both the death of the irreparable injury rule and the unity, for all practical purposes, of equitable and legal remedies. Bray points to Douglas Laycock’s 1991 book “The Death of the Irreparable Injury Rule” as the aristeia of a movement to tear down the barrier between equitable and legal remedies that began over a century ago. Laycock “meticulously” illustrated that the requirement to show no adequate remedy at law has no discernable impact on a judge’s decision whether or not to grant equitable relief; as Bray puts it, “[w]hen judges want to give a permanent injunction, they never find legal remedies adequate.” (P. 1006.) Even the American Law Institute criticized the irreparable injury showing as “antiquated” and “spurious” in its Restatement (Third) of Restitution and Unjust Enrichment.

For two, the Court’s history of equitable practice is marred by misunderstandings and clear errors. Throughout the new equity cases, the Court has said things that are objectively and discernably incorrect about equitable practice—for example, despite the Court’s insistence on the distinction, mislabeling certain legal remedies as equitable remedies and vice versa—and has “restated” tests that, though made up of familiar elements, had never been stated before.

That much has already been said by others; Bray’s contribution is his defense of these new equity cases. As Bray puts it, the Court has intentionally or unintentionally fabricated an idealized history of equity that, while not accurate, is useful for adjudicating cases. It is not a historian’s history, but a judge’s history that smooths out many centuries of equity practice to make it easier to digest. Bray likens it to a tailor who has repaired a tattered cloth with patches and seams, so that it may be cut to use; the resulting “new old” coat may not be handsome, but it is better suited to its purpose.

Bray drives this point home by highlighting the growing consensus among members of the Court across the new equity cases, a point not yet covered by the literature. The Court began bitterly divided in the 1999 case Grupo Mexicano de Desarrollo, SA v. Alliance Bond Fund, Inc., where the question was whether a federal court was authorized to issue an injunction freezing assets unrelated to the litigation but potentially needed to satisfy a money judgment. Such injunctions, called Mareva injunctions, had only become accepted in the courts of the United Kingdom during the last several decades. Justice Scalia wrote for a 5-4 majority, holding that the federal courts were not authorized to issue such injunctions because they were not an accepted part of equity practice when Congress passed the Judiciary Act of 1789. Resisting Scalia’s push to freeze equity at 1789, Justice Ginsburg’s dissent argued that equity must be eminently flexible “to protect all rights and do justice to all concerned.”

Bray argues that neither approach is workable; the scope of equitable remedies must be more flexible than Scalia’s approach and less amorphous than Ginsburg’s approach to provide guidance to lower courts. Over time the Court has coalesced around a middle path that protects the discretion inherent in equity while cabining its use to exceptional circumstances. For example, the Court was unanimous in eBay v. MercExchange (2006), which established a four-part test for permanent injunctions and which Bray identifies as the “most important decision in decades” on the issue. And the next time Justice Ginsburg dissented in favor of equity’s flexibility, in Winters v. Natural Resources Defense Council (2008), only one other justice joined. Under the new equity cases, the guiding rule is that equitable remedies are “exceptional.” Bray explains that the “norm is legal remedies” and “[a]ny departure demands justification; even if it is easily made, it still must be made.” (P. 1038.) The Court has provided the tools for making that justification in “new old” multipart tests and a repaired history, thereby giving lower courts better guidance than actual equitable practice could offer.

Bray concludes that this approach is broadly consistent with equity’s broad tradition, even if inconsistent with its specific practice over the centuries (which often were inconsistent or conflicting). For example, at one time equity “would never enjoin a trespass,” whereas now an injunction is the definitive remedy for trespass. (P. 1016.) That broad perspective offers the best approach. Plus, an artificial history is also easier to update, providing flexibility to better seek the aspirational principles that are “not just the words but the music” of equity. (P. 1012.) Thus, Bray defends the new equity cases as mostly right and good enough.

I do wish that Bray touched on the relationship between the type and content of an equitable remedy, an issue that is not obvious to those of us who are not remedies experts. For example, Justice Ginsburg’s approach in Grupo Mexicano de Desarrollo extolling equity’s flexibility is not, as Bray argues, a useful guiding principle when distinguishing between types of remedies—like when deciding whether the phrase “equitable remedies” in a particular statute includes injunctions but not writs of mandamus.  But it offers useful guidance to a judge’s ability to control the content of, for example, a preliminary injunction—having no restrictions is not the same has having no guidance. The rub is that the type of injunction seems tied by its content—what is a Mareva injunction if not the familiar preliminary injunction tailored to do a specific thing? If so, Ginsburg’s broad approach may be a workable answer to the practical question of whether the judge can do what she did. Whatever the correct answer, explaining both sides of this coin would better communicate Bray’s argument to a general readership.

On the whole, Bray’s article is a wonderfully written reminder of how instrumental legal reasoning is. Though we labor under various euphemisms, precedent is only as right as it is useful. We forgive advocates of this weakness in recognition of the institutional role that they play in an adversarial system, but we forget that judges also play an institutional role—that of making a decision, and not always the right decision. In the new equity cases, Bray argues that the Court succeeded in performing its institutional function of providing guidance to lower courts, and not untangle the Gordian history of equitable remedies. Ours is a system designed to settle expectations, not exceed them. Consider then-Associate Justice Rehnquist’s frustration that that legal academy “holds [the Court] up to a far higher standard than any group of nine mortals can expect to attain”:

If our opinions seem on occasion to be internally inconsistent, to contain a logical fallacy, or to insufficiently distinguish a prior case, I commend you to the view attributed to Chief Justice Hughes upon his retirement from our Court in 1941. He said that he always tried to write his opinions logically and clearly, but if a Justice whose vote was necessary to make a majority insisted that particular language be put in, in it went, and let the law reviews figure out what it meant.

Tip of the hat then, to Bray for figuring out what it means.

Cite as: Wyatt Sassman, On Being Mostly Right, JOTWELL (March 3, 2016) (reviewing Samuel Bray, The Supreme Court and the New Equity, 68 Vand. L. Rev. 997 (2015)), https://courtslaw.jotwell.com/on-being-mostly-right/.