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Discovery Costs and Default Rules

Brian T. Fitzpatrick & Cameron T. Norris, One-Way Fee Shifting After Summary Judgment (2016), available on SSRN.

In One-Way Fee Shifting After Summary Judgment, Brian Fitzpatrick and his student, Cameron Norris, address what has been the dominant impulse in federal procedural reform for the past thirty-five years: reducing cost and delay in civil litigation.

The most recent effort to curb litigation expense — the 2015 amendments to the Federal Rules of Civil Procedure that, among other things, sought to invigorate the concept of proportional discovery expenditures that had first found its way into the Rules in 1983 — has been widely criticized as feckless. Switching the proportionality requirement from (principally) Federal Rule 26(b)(2) to (principally) Federal Rule 26(b)(1) and then eliminating “subject matter” discovery seem to be little more than moving the deck chairs on the Titanic, given that judges have no more tools in 2016 to determine whether discovery is proportional than they had in prior years, and “subject matter” discovery was minimal at best.

One fundamental difficulty with requiring that discovery be proportional to the needs of the case — as alluring as this principle is in theory — is its informational demand. Neither the parties nor the judge can quantify with any certainty the most relevant proportionality variables: how much the case is worth, how much discovery will cost, or how much the information will affect the likelihood of recovery (including how much follow-on discovery might affect this calculus). Equally problematic is that the parties often have a private incentive to engage in discovery that, from society’s viewpoint, is disproportionate.

Take a simple example in which all the variables are known. The plaintiff has a 50% chance of winning a $100,000 claim. The plaintiff seeks discovery costing $7,000 that will increase the odds of victory to 60%. But the defendant will then seek to obtain discovery to discredit the new information, and at a cost of $4,000, can successfully minimize the impact of the discovery, reducing the plaintiff’s chances of recovery to 55%.

As an initial matter (and without regard for who pays for the discovery), the plaintiff’s discovery seems proportional: a $7,000 expenditure increases the expected value of the case by $10,000 (from $50,000 to $60,000). When the defendant’s countermeasures are considered, however, this discovery is not justified. Looked at in total, the plaintiff’s discovery request has triggered $11,000 in expenses (the original $7,000 in response to the plaintiff’s request, plus an additional $4,000 for countermeasure discovery) but moved the value of the case by only $5,000. To the extent that proportionality is judged in cost-benefit terms, this discovery is not proportional.

Confounding the calculation in some cases is the American approach to paying for discovery: as a rule, the requesting party bears the burden of making the request (a burden that is often fairly minimal), while the responding party bears the burden of providing the discovery. On the assumption that the defendant bears the $7,000 cost of providing the initial discovery while the plaintiff bears the $4,000 cost of providing the countermeasure discovery, this “responder pays” approach gives the plaintiff an incentive to ask for the initial discovery: a $4,000 expense yields a $5,000 increase in case value (from $50,000 to $55,000). And the defendant has an incentive to ask for the countermeasure discovery: at an expense of $0, the value of the case falls by $5,000.

If each party bore its own costs — and another 2015 reform hinted that judges should consider this “requester pays” approach more broadly — then an omniscient plaintiff would not have requested the initial discovery: the plaintiff would expect to expend $7,000 to yield a benefit of $5,000. But on facts that were styled differently, it could be shown that the requester-pays approach (as well as the loser-pays approach adopted in countries other than the United States) would also lead to inefficient discovery. The sad reality is that the private incentive to invest in litigation often diverges from the public goal, represented inter alia in the proportionality principle, of cost-effective action by the parties.

But the most immediate problem with proportionality is the improbability that the parties and the judge have access to information of the precision that the hypothetical provides. The parties and judge may have some sense of the cost of the discovery itself, but the value of the claim, the likelihood of winning, and the impact of countermeasure discovery on the value and likelihood are dimly graspable at best, and simply unknowable in most cases. Any proportionality rule that asks the judge to engage in a case-by-case cost-benefit analysis regarding the cost of discovery sounds great as an aspirational matter but is unenforceable in practice — as our thirty-three-year history with proportionality shows.

For that reason, default rules become attractive. Such rules may not offer finely tuned balancing of costs and benefits in each case. But a default rule that, in the main, leads to a more efficient outcome may yield more benefit in the long run than a more tailored approach that is unwieldy in practice. Fitzpatrick and Norris propose a new kind of default rule to deal with excessive discovery expenditures. It is ingeniously simple: require the plaintiff to pay the difference between the plaintiff’s discovery expenses and the defendant’s discovery expenses — but only when the plaintiff loses a motion for summary judgment. This modified requester-pays rule does not kick in if the plaintiff prevails in whole or part on the motion for summary judgment, or if the plaintiff settles or voluntarily dismisses the case before summary judgment is entered.

The authors argue that this rule is better than pure producer-pays, requester-pays, or loser-pays regimes, including the present producer-pays approach with a proportionality principle. A lose-summary-judgment-and-pay-the-discovery-cost-differential rule particularly targets the problem of asymmetric discovery, in which one party (typically a defendant) has access to far more information than the other party (typically the plaintiff). In a producer-pays world with asymmetric information, the plaintiff has an incentive to ask the defendant for significant amounts of information as a means of driving up settlement values. To recur to the example above, if we assume that the plaintiff’s discovery requests would require the defendant to spend $60,000 to respond, the defendant has an incentive to settle even a frivolous case for substantial value. By shifting the differential between the plaintiff’s and the defendant’s discovery costs (in other words, the measurable extent of the asymmetry) to the plaintiff when the plaintiff persists in prosecuting the case despite the lack of a “genuine dispute as to any material fact,” a plaintiff’s incentive to engage in “impositional discovery” (discovery so costly that it shakes a defendant down to settle a meritless case) is vastly reduced.

As a stand-alone way to limit discovery costs, the authors’ proposal seems insufficient. To the extent the problem is excessively costly discovery, the solution is overinclusive in one way. There are well-known empirical analyses (here, here, and here) that the cost of discovery is not excessive, except in a small subset of cases. The authors dispute the validity of some of this data, but perhaps they need not. Even if the data are correct, the “problem cases” involving excessive discovery expenditures are also likely to be cases with vigorous summary-judgment practice; therefore, the proposal could make headway to contain discovery costs in the cases in which containment is most needed.

The proposal is also underinclusive in some ways. There are data (here and here) about how frequently summary judgment is sought and how frequently it terminates an entire lawsuit; summary-judgment termination occurs in fewer than 10% of federal civil cases (6 to 7% seems to be about right in most district courts). So the authors’ solution would not affect discovery costs in most cases, unless the proposal has an outsized in terrorem effect. On the positive side, however, the proposal might affect cases in which the cost of discovery is greatest (on the reasonable assumption of a substantial overlap between cases involving high discovery costs and cases in which summary-judgment motions are filed). It also fails to address situations in which the asymmetry in discoverable information favors the defendant, who can force the plaintiff to expend substantial amounts on discovery. Like Federal Rule 68, this proposal is a one-way ratchet that operates only in favor of defendants. But it is not clear that many cases feature such asymmetries. Even if their proposed rule is underinclusive, therefore, it takes a small bite out of the problem of discovery cost — and could do more if joined with proposals to curb excessive discovery in other cases.

Of course, it is in the nature of default rules to be over- and underinclusive, so these concerns do not doom the idea of making plaintiffs pay the differential in discovery costs when they lose a summary-judgment motion. The greatest drawbacks to the proposal are its untoward side effects. As the authors acknowledge, defendants have an incentive to run up their discovery-response costs, precisely to keep risk-averse plaintiffs from pressing their claims. Moreover, the proposal may make some defendants less willing to settle litigation and more willing to play the case out through summary judgment precisely to recoup discovery costs, thus increasing overall litigation costs.

More generally, as Samuel Issacharoff and George Loewenstein have shown, any toughening of summary-judgment standards for plaintiffs suppresses settlement values for plaintiffs’ claims across the board; the same effect seems likely under the authors’ proposal. As the authors acknowledge, judges who realize the consequences to plaintiffs when summary judgment is granted (that they must pay the discovery cost differential) may become less willing to do so, thus defeating the purpose of the proposal. Finally, the proposal would add to the perception that federal courts are pro-defendant, which might drive some plaintiffs into state courts that did not adopt this proposal, or, more problematically, discourage them from bringing meritorious suits at all.

My preference is for a broader approach to litigation costs (about which I have written in a prior post and elsewhere): require the parties to establish, and live within, litigation budgets (including a budget for discovery). Such an approach is perhaps too radical for most, although litigants in England have been faring reasonably well under a variant of this method for nearly four years. Fitzpatrick and Norris’s proposed rule is perhaps more politically palatable: less sweeping and more targeted at cases susceptible to disposition on summary judgment. In the end, however, its side effects seem sufficiently grave and its reach sufficiently narrow that implementing the proposal without first trying it out on a pilot or experimental basis is probably a mistake.

But the impulse behind the proposal — to find simple, workable solutions that allow us to abandon an amorphous proportionality inquiry — is exactly right. May many more such proposals blossom in the years to come.

Cite as: Jay Tidmarsh, Discovery Costs and Default Rules, JOTWELL (December 19, 2016) (reviewing Brian T. Fitzpatrick & Cameron T. Norris, One-Way Fee Shifting After Summary Judgment (2016), available on SSRN),

Time to Say Goodbye to Forum Non Conveniens?

Maggie Gardner, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. (forthcoming 2017), available at SSRN.

The doctrine of forum non conveniens is a mainstay in the modern defendant’s procedural arsenal in transnational cases. Under this common law doctrine, which the Supreme Court first recognized at the federal level in 1947, a judge may consider a number of private and public factors to decide whether a lawsuit over which it otherwise has jurisdiction should be dismissed and (at the plaintiff’s initiative) relitigated in another, non-U.S. forum. In her thorough and thought-provoking article, Maggie Gardner goes beyond the multitude of scholars who have called for the doctrine to be refined, reformed, or limited, and instead calls for its retirement from federal procedural law altogether.

Gardner recognizes the enormity of this task, and suggests jettisoning forum non conveniens only after presenting a careful history of the doctrine and a thorough canvassing of the critiques and reform proposals that have dotted the lower-court and scholarly landscapes over the past few decades.

Gardner identifies several problems with forum non conveniens, both in the doctrine and the proposed reforms. She argues that the doctrine, once rooted in notions of international litigation and principles of comity, was refashioned for the domestic context before it mutated again to its current role in transnational litigation. This meandering doctrinal path has left forum non conveniens with an odd assortment of vestiges of domestic and international concerns that are no longer meaningfully relevant to modern transnational litigation. In addition to these doctrinal mismatches, Gardner argues that the doctrine focuses an outsized lens on the issue of availability of evidence in long-distance situations – a problem that does not plague modern litigation, where the feasibility of access to evidence is facilitated by modern technology and ease of travel. The doctrinal difficulties are linked to the problems with proposed reforms. Because reform efforts take the doctrine’s existence and multi-factored test as their starting point, they tend to only add more complexity to the doctrine. But as Gardner ably shows, it is the layers of complexity that created the problems in the first place.

Other difficulties stem from forum non conveniens’ status as a common law doctrine. Forum non conveniens became an exclusive tool of transnational litigation because its more general domestic application was edged out by statutes such as 28 U.S.C. § 1404(a), which allows for transfer of venue within the federal system. The changing nature of litigation, and particularly transnational litigation, makes the general test for forum non conveniens, as adopted in 1947 and reconfigured for the transnational context in 1981, an awkward fit. One would think that a discretionary common law doctrine would be precisely what this situation calls for – that the evolutionary nature of common law reasoning would provide the necessary adaptability to a new litigation landscape and that the discretionary nature of the doctrine would allow judges to use it as a flexible backstop. But Gardner convincingly argues that the standard itself is the wrong test and that reforms, which should be easy to generate within a common law doctrine, are “partial, inconsistent, and generally unsuccessful.” Due to the awkward fit of well-intentioned but inconsistent reforms with the wrong test, a true reform of forum non conveniens becomes “difficult, perhaps impossible.”

I am skeptical, however, that retiring forum non conveniens would ameliorate many of the doctrinal problems she identifies. One of Gardner’s insights is that forum non conveniens analysis is redundant in light of the inquiries made under several other procedural doctrines such as personal jurisdiction, the presumption against extraterritoriality, and the enforcement of forum-selection clauses. With the “safety valve” of forum non conveniens gone, courts would rely more on these other doctrines for policing the outer boundaries of transnational litigation in U.S. courts. There is no guarantee that the sloppiness of forum non conveniens would not simply reappear as problematic inconsistencies in their new doctrinal homes. Personal jurisdiction is already notorious for its lack of clarity. And because personal jurisdiction carries the weight of constitutional due process, the boundaries of the availability of an American forum for transnational litigation might become simultaneously more unforgiving and more unpredictable. Gardner recognizes this objection and argues that the redundant focus of comity and “exorbitant” exercises of jurisdiction in transnational cases in both forum non conveniens and personal jurisdiction is part of what has enabled the Supreme Court to keep generating imprecise and inconsistent opinions in both arenas. Narrowing the inquiry to one doctrine might nudge the Court towards a more narrowly tailored and coherent personal jurisdiction doctrine in both international and domestic cases.

But it may be that forum non conveniens is more rhetorical flourish than anything else, and that the difficulties and vagaries of personal jurisdiction, particularly as applied to foreign defendants, will continue even without the doctrinal distraction of forum non conveniens. Moreover, relocating to personal jurisdiction many of the doctrinal fights over the propriety of the use of American forums for resolution of transnational disputes may have some unfortunate consequences for personal jurisdiction doctrine. Many of the doctrines that govern ordinary access by ordinary parties to ordinary U.S. courts already are driven by outlier fact patterns and defendants, frequently foreign or remote defendants. When this fight must now occur almost entirely within the boundaries of personal jurisdiction doctrine, I fear that the contours and rhetoric of personal jurisdiction will be further driven by an outsized focus on the transnational, rather than an orderly and measured focus on the typical.

Gardner’s article concludes with the suggestion that the most promising way to retire forum non conveniens is through legislative intervention. Gardner suggests that the federal government pursue reinvigorated negotiations for a harmonized judgments treaty, which would then be implemented by statute into domestic law. She envisions that such legislation would limit forum non conveniens to “exceptional circumstances” and would focus exclusively on a refined private-interest analysis. I believe that she is correct in identifying this as the strongest path forward, and would suggest that its success would be bolstered by simultaneous legislative intervention into the doctrines of personal jurisdiction and forum selection clauses. Without a holistic legislative approach, the problems that Gardner so aptly identifies will only live to see another day as residents of new doctrinal arenas.

Cite as: Robin Effron, Time to Say Goodbye to Forum Non Conveniens?, JOTWELL (December 8, 2016) (reviewing Maggie Gardner, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. (forthcoming 2017), available at SSRN),

Equity, the Judicial Power, and the Problem of the National Injunction

Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction (2016), available at SSRN.

Samuel Bray’s newest article tackles a topic of serious concern. The national injunction is an injunction against the enforcement of a federal statute or regulation against all people nationwide, not simply to protect the plaintiffs in one case. It is a powerful tool for political actors and interest groups who use litigation to accomplish regulatory and de-regulatory goals.

Unknown to traditional equity, the national injunction somehow wormed its way into judicial practice in the second half of the twentieth century and has been deployed with powerful effect through the present. Bray identifies some of the principal problems caused by the national injunction, investigates the changes that led to its emergence and spread, and offers a simple principle for limiting injunctive relief to the protection of plaintiffs. If adopted, Bray’s prescription would end the national injunction.

Bray justifies his reform proposal as a translation of traditional equity principles, growing out of the institutional transformation of equity practice. England had only one Chancellor, one person empowered to issue injunctions. In the United States, by contrast, every federal trial judge is a chancellor when deciding on equitable relief.

That injunctions can extend beyond protecting individual plaintiffs to reach all people nationwide creates two big problems: an incentive to forum shop and a risk of conflicting injunctions.

The forum shopping point is easy to grasp. As Bray explains, “[i]t is no accident that the major national injunctions in the George W. Bush administration were issued by California courts, and the major national injunctions in the Barack Obama administration have been issued by Texas courts.” The shopping is not just for trial judges, but also for appellate courts like the Ninth Circuit and the Fifth Circuit. “The pattern is as obvious as it is disconcerting.”

The risk of conflicting injunctions is “less common,” but still “potentially serious.” Bray points to historical examples of conflicting injunctions, but the problem is not limited to the past. As Bray writes his article, for instance, cases were pending in the Eastern District of New York and the Northern District of Illinois seeking injunctions that would require the federal government to ignore a national injunction granted by a federal district court in Texas prohibiting enforcement of President Obama’s deferred action immigration program.

By tracing these two problems to the institutional shift to multiple chancellors, Bray roots his reform proposal in traditional principles of equity practice. Because English equity practice had one chancellor, it did not need to develop solutions to the problems of forum shopping and conflicting injunctions.

At the same time, equity had principles limiting the scope of equitable relief, which must be translated to the setting of multiple chancellors. The rule Bray prescribes can be stated in terms of what an injunction against enforcement of a federal regulation or statute should and should not cover: “A federal court should give an injunction that protects the plaintiff vis-à-vis the defendant, wherever the plaintiff and the defendant may both happen to be. The injunction should not constrain the defendant’s conduct vis-à-vis non-parties.” A “rule of thumb” for thinking this through is to look ahead to possible contempt proceedings: “an injunction should be no broader than what the plaintiffs—not in any kind of representative capacity, but solely for themselves—should logically be able to bring contempt proceedings to enforce.” Bray does not just make this rule up; he roots it in traditional equity, in which “injunctions did not control the defendant’s behavior against non-parties.” But Bray also acknowledges that “traditional equity never condensed its practice into a sharply defined principle” such as the one he advances. Again, the reason for this is historical and institutional. “With only one chancellor, and with a modest conception of what equitable relief was supposed to do, traditional equity did not need to develop rules [like this one] to constrain the scope of injunctive relief.”

I am not normally one to quibble about article titles, but Bray’s title may obscure the most interesting and important contributions of his article by highlighting just one. Multiple Chancellors: Reforming the National Injunction is a fine title for an article that does only what this review has thus far described.

But Bray’s article does something more. And that something more provides an opening for additional promising scholarship seeking insight into conceptual transformations in the self-understanding of those exercising the judicial power of the United States.

As Bray recognizes, the “multiple chancellors” aspect of equity in the federal courts is a “structural precondition” of the forum shopping and conflicting injunction problems that stem from national injunctions. But it does not explain why such injunctions emerged with any frequency only in the second half of the twentieth century. We had multiple chancellors long before that.

Bray offers a tentative explanation that is compelling as far as it goes. He points to two “ideological shifts,” along with judicial experience with desegregation decrees leading to creation of the Rule 23(b)(2) class action (that is, the class action for injunctive relief).

One “ideological shift” is in how judges think about suits for injunctive relief. The older conception was to view injunctions against enforcement as anti-suit injunctions, a defensive, plaintiff-protective conception. The newer conception understands a suit for injunctive relief as a challenge to the validity of a statute. In this way of thinking, the injunction-seeking plaintiff is on the offense.

This shift is closely related to another, which is a change in judges’ conceptions of what they are doing vis-à-vis an unconstitutional statute. Under the older conception, a judge would decline to recognize an unconstitutional law or invalid regulation as applicable in resolving the case at hand. As applied in the anti-suit injunction context, this older conception would result in an injunction enjoining enforcement against the plaintiff. Under the newer conception, the judge “strikes down” the law or “sets aside” the regulation. Bray captures the import of this shift: “If a court considers a statute inconsistent with the Constitution, and thus does not apply it, nothing follows about the remedy…. But on the contemporary conception of what a court does—striking down or setting aside an unconstitutional statute or regulation—a national injunction begins to have a relentless logic.”

In elaborating these conceptual shifts, Bray identifies other variables. Scholars, lawyers, and judges seeking to better understand how the federal judicial power has drifted into its present, confused state when it comes to the intersection of constitutional adjudication with injunctive relief would do well to follow up on these other variables.

One is passage of the federal Declaratory Judgment Act in 1933. By untethering cases from coercive relief, the Act may have transformed the idea of what makes a case fit for judicial resolution, as critics of the Act feared. Another is the rise of facial challenges, a term that reflects the offensive nature of constitutional adjudication. With the statute itself on the chopping block, constitutional adjudication is conceived less in terms of the rights and duties of the parties vis-à-vis each other under the law and more in terms of the court doing something to the statute itself. Finally, Bray points to the Administrative Procedure Act, which says that federal courts are to “set aside” unlawful agency action. When that action is a regulation promulgated after notice and comment, one sees the parallel with the idea of “striking down” a statute. The APA’s language, Bray notes, is “less violent but still suggestive of physical dislocation.”

Following Bray’s lead, it is possible to probe the parallel between the shifting conceptions of judicial treatment of invalid regulations and unconstitutional statutes and the origins of the phrase “judicial review.” While it is commonplace to treat “judicial review” of federal laws as extending back to Marbury v. Madison in 1803 (at least!), the phrase itself was not used to describe the practice until the early twentieth century. As used to describe the practice of refusing to recognize unconstitutional statutes, the phrase “judicial review” appears to have been imported from the practice of reviewing the legality of administrative regulations and orders.

When one burrows deeper into the origins of the national injunction, one recognizes that the metastasis of injunctive relief is just one symptom of a broader pathology afflicting the federal judiciary. Most federal judges’ conception of what they are doing when entering injunctive relief against the enforcement of an invalid regulation or an unconstitutional statute is removed not only from traditional equity but also from traditional understandings of the judicial power itself. Bray’s prescription treats this symptom, and his description helps us understand related problems such as injunctions against the enforcement of statutory provisions that do not even apply to plaintiffs obtaining the injunction. Bray’s article can help the judiciary put one problem—the problem of national injunctions—to rest. And it provides a needed alert to the existence of others.

Cite as: Kevin C. Walsh, Equity, the Judicial Power, and the Problem of the National Injunction, JOTWELL (November 24, 2016) (reviewing Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction (2016), available at SSRN),

Introducing U.S. Law

Robert H. Klonoff, Introduction to the Study of U.S. Law (2016).

Teaching an introductory course on United States Law to foreign students is a challenging task, regardless of whether it is done in a U.S. law school as part of an LL.M. program or in a course taught abroad. LL.M. programs usually provide one such course each academic year. Some of these courses use material randomly assembled by the teachers and assigned to the class. Others use published casebooks, most of which are outdated or otherwise unsatisfactory, too synthetic to achieve their stated goal, lacking a unitary vision, and devoid of informative comparative angles.

Robert Klonoff’s Introduction to the Study of U.S. Law is the most updated, thorough, and precise text on the subject currently available. The first true “U.S. Law” casebook for foreign students and designed in the U.S. law school tradition, it embarks on its mission with intriguing comparative law angles, addressing questions that a foreigner might raise when first confronting U.S. law. Overall, the casebook offers a solid, engaging, and effective guide to the study of the pillars of the U.S. legal system. The selection of topics, the organization, and the clearly stated analysis make the book an effective tool for any foreign lawyer interested in taking the bar exam in the United States. But it is so much more than that.

Klonoff’s casebook also offers a useful compendium for students, practitioners, and academics already grounded in U.S. law, with a carefully updated, comprehensive, and profound vision of the crucial rules and doctrines underlying our system. I could easily imagine this casebook being used in a final law school course giving students an opportunity to appreciate the legal system in its entirety. The book is especially effective in showing the common grounds and common problems that run through U.S. law, contributing to that holistic vision necessary to meaningfully approach legal analysis.

Each chapter in the casebook might also serve as introductory reading for a foundational course on the subject. For example, as a Civil Procedure teacher, I found the chapter on procedure quite intriguing. It provided an interesting Civil Procedure “story” that a professor might assign before moving to the fragmentation and topic-by-topic approach that we all must necessarily attend to. It also provides a carefully stated and streamlined presentation of the topics one typically associates with a first-year Civil Procedure course. Using Goldberg v. Kelly on procedural due process as the opening gambit is a deft move, as that case introduces the reader to (or reminds him of) the idea that any civil procedure topic should be addressed against a solid and concrete due process background.

Each chapter similarly opens with an introductory note highlighting the central features of the topic, covered through the edited opinions and accompanying Notes & Questions. The move from the general to the particular was balanced and effective, serving as a powerful bridge from the author to the teacher to the student. In fact, the Notes & Questions offer context to the cases and preview the doctrines that tie the cases together. They also introduce foreign students to the Socratic method, trace for them an effective learning path, and generate wonderful classroom exchanges. Klonoff also uses them to develop substantive themes that go beyond the specific cases covered, often showing the connections between those cases and other areas of study.

After providing an overview of the common law system in the U.S., the judicial system and the lawyers’ role within it, the casebook offers a thorough overview and analysis of the foundational subjects of the U.S. legal system: Constitutional Law (Chapter 2), Civil Procedure (Chapter 3), Contracts (Chapter 4), Torts (Chapter 5), Property (Chapter 6), Criminal Procedure (Chapter 7), and Criminal Law (Chapter 8).

The selection of cases is spot-on, moving from common grounds to the peculiarities of the U.S. system, and from older to more recent cases, thus offering foundational as well as contemporary applications of critical doctrines in state and federal courts. But, in general, the emphasis is on contemporary cases, allowing teacher and student to move through the materials without the baggage of doctrines that may be less than illuminating.

The book also offers opportunities for scholarly reflections, as on the American Law Institute’s work on the Restatements, the role of dissenting opinions, or scholarly debates on the most current topics, such as electronic formation of contracts or the current impact of Bell Atlantic v. Twombly and Ashcroft v. Iqbal.

Chapter 1, “Introduction to the U.S. Legal System,” is worth highlighting, as it offers information crucial to a complete understanding of the interlocking aspects of the legal system. It is comparative, moving fluidly from the civil law to the common law system. The chapter also explores the U.S. legal system through different angles, including the academic, historical, traditional, and practical. The sources range from ABA materials and federal government publications to articles and lectures by Supreme Court Justices.

Klonoff’s Introduction to the Study of U.S. Law is, without doubt, the best text currently available to introduce foreign students to the study of the U.S. legal system. Moving from Supreme Court cases to lower federal and state court opinions to scholarly articles and current debates to current practice, it offers a panoramic and truthful overview of a system that continues to inspire scholars, lawyers, judges, and legislators all over the world. The author’s knowledge of and sensitivity to a foreigner’s curiosity and his encyclopedic knowledge of U.S. law are evident on every page.

Cite as: Simona Grossi, Introducing U.S. Law, JOTWELL (November 9, 2016) (reviewing Robert H. Klonoff, Introduction to the Study of U.S. Law (2016)),

Bringing in the Jury

From the milk carton graphic on the cover to the blurb by Dallas Mavericks owner Mark Cuban, Suja Thomas’s The Missing American Jury is not your typical, staid academic monograph. Indeed, although neither the punchline nor the stridency will come as a surprise to those familiar with her prior work (including my personal favorite—Why Summary Judgment Is Unconstitutional, an article that spawned an entire symposium), the book is a far more powerful, elegant, and concise explication of her long-held view of the unfortunate (and inappropriate) demise of the criminal, civil, and grand juries in contemporary American litigation. More than that, it is also a call for a systemic restoration of the jury, one grounded in a proper appreciation of the structural constitutional role juries were meant to play vis-à-vis the legislative, executive, and even judicial branches of government.

There is simply no denying Thomas’s descriptive claim. At the Founding, juries decided all but the most minor criminal cases. But by 1962, jury trials accounted for only 8.2% of cases tried in federal court. And by 2013, that number had more than halved, dropping to 3.6%. The numbers in state courts are even more bleak—and, in most cases, come on top of the absence of grand juries. And in civil cases, as will surprise absolutely no one, juries decided only 5.5% of federal cases in 1962—and 0.8% by 2013. There are lots of explanations, obvious and otherwise, for these trends. But whereas conventional narratives of the jury’s demise have emphasized the inefficiency, cost, incompetence, and inaccuracy of the jury, the real culprits, Thomas argues, are each of the branches of government, which have “seized the domain of the jury.” As Thomas explains, “the executive charges, convicts, and sentences, despite juries indicting, sentencing, and convicting in the past. The legislature can set damages, although only the jury historically had that power. The judiciary circumvents juries by resolving cases via mechanisms such as the motion to dismiss, summary judgment, judgment of acquittal, and judgment as a matter of law, procedures nonexistent at our Constitution’s founding.” And all of this is on top of what Thomas consciously excludes from her discussion, the move (sanctioned, if not affirmatively encouraged, by all three branches) toward non-trial settlement—whether through plea bargains in the criminal context or alternative dispute resolution in the civil context.

More than just demonstrating the how and why of the demise of American juries, Thomas’s narrative also (if implicitly) reflects upon the consequences of such a development. These include the possibility that the demise of the civil jury has tilted particular types of litigation against plaintiffs; the rise of non-Article III federal adjudication tied, in many respects, to the absence (or shrinking) of constitutional jury-trial protections; and the more general concern that one of the important checks on abuses by legislatures, prosecutors, and judges has been so diluted so as to no longer be visible as a check.

This last point is the heart of Thomas’s normative claim—that the demise of juries has caused us to lose sight of their structural role in the constitutional system as a check on the very institutions that have been complicit in their demise. And whereas those institutions can usually be trusted zealously to protect their own prerogatives (“ambition must be made to counteract ambition,” as James Madison wrote in Federalist No. 51), Thomas argues that juries have a “unique inability to protect [their] own authority.” In other words, if one views juries as a co-equal structural feature of our constitutional system, they are fundamentally unequal in their ability to respond to real or perceived usurpations of their authority—or lack thereof. And those usurpations have happened through a number of measures designed to transfer decisionmaking power traditionally exercised by juries to legislatures, prosecutors, and judges. Because juries cannot really fight for themselves, other institutions ought to be held to constitutionally grounded limits on their ability to invade—and seize—the historical province of the jury.

Among other things, this leads to Thomas’s arguments about why summary judgment is unconstitutional; why the Grand Jury Indictment Clause of the Fifth Amendment, which has not been incorporated against the states, should be; why judges should not be able to enter judgments of acquittal in criminal cases; and why juries, not judges, must have the power to fix damages under any federal statute authorizing such a remedy. And although much of Thomas’s defense of these restorative moves is grounded in different species of originalism, the book closes with a powerful chapter taking a more comparative look at the contemporary role of lay jurors in other democratic legal systems—a role that, Thomas concludes, is far more powerful than anachronism-based critiques of juries might otherwise suggest. Simply put, Thomas’s proposals may not be as out-of-place with comparative contemporary practice as we might think at first blush.

Of course, Thomas’s proposals will strike many—especially legislators, prosecutors, and judges—as radical. Methinks that’s the point. And I, for one, find the demise of juries to be much more problematic in the criminal context than in civil cases, given the extent to which it tips the scales so much more decisively in one direction (to say nothing of the impact of the demise of the jury-trial right in non-Article III federal courts doctrine).

But Thomas’s book is a thing I like lots not because I agree with every word of it, but because I do not. It is the very best kind of legal scholarship—a narrative that does not force readers to agree, but does force them to think hard about the cause and effect of an undeniable trend and to reach their own conclusion about whether we have lost more than we have gained as a result.

Cite as: Steve Vladeck, Bringing in the Jury, JOTWELL (October 24, 2016) (reviewing Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (2016)),

Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys

Briana Rosenbaum, The RICO Trend in Class Action Warfare, 102 Iowa L. Rev. (forthcoming 2016), available at SSRN.

A racketeer, a mobster, and a plaintiffs’ mass-action attorney walk into a bar. What might be a decent setup for a joke is actually dead serious. Like members of organized crime, plaintiffs’ mass-action attorneys are being sued under the federal Racketeer Influenced and Corrupt Organizations (RICO) statutes. Briana Rosenbaum’s The RICO Trend in Class Action Warfare carefully considers existing remedies for frivolous litigation and critiques what she sees as the inefficacy of “the RICO reprisal.”

Rosenbaum readily admits that some mass-action attorneys include frivolous claims among meritorious ones in an attempt to obtain a larger settlement, otherwise known as “specious claiming.” But Rosenbaum argues that remedies for abusive litigation already exist. There are tort remedies such as malicious prosecution and abuse of process, and procedural remedies such as Fed. R. Civ. P. 11 and 28 U.S.C. § 1927. Rosenbaum posits that this existing remedial structure for vexatious litigants, while imperfect, was at least created with important countervailing policy considerations in mind, such as access to justice and administrative efficiency.

None of these countervailing policy considerations went into crafting RICO as a remedy for abusive litigation. Rosenbaum uses CSX Transportation, Inc. v. Gilkison as a case study to show just how poorly RICO works. CSX is the only known case to go to trial and result in a verdict against the plaintiffs’ attorneys. It arises from asbestos litigation, where it is undisputed that the plaintiffs’ law firm relied on a questionable expert who used controversial diagnostic methods. There is much to say about this case, but for purposes of understanding Rosenbaum’s article, one need know only the bottom line. The asbestos litigation defendants filed a RICO claim against the plaintiffs’ attorneys and demonstrated that eleven out of the 5,300 claims filed, or 0.2%, were baseless. On that evidence, CSX won its RICO claim at a jury trial, leading the parties to settle the case for $7.3 million.

To understand how this happened requires a basic understanding of RICO. First, to win a civil RICO claim, an injured party must prove that the defendant engaged in an enterprise through a pattern of racketeering. The statute provides an exhaustive list of “racketeering activity,” but the most common “predicate offense” in these recent cases against plaintiffs’ attorneys is mail or wire fraud. This criminal act must be shown before there is any civil liability under RICO. In CSX, the court found that every time the plaintiffs’ law firm filed a paper with the court—such as a complaint—or sent correspondence to opposing counsel—such as a letter with a courtesy copy of a mediation request—it committed mail fraud. The court determined that it was not just the eleven fraudulent claims that established a pattern under RICO, but was instead the mass suit itself because the attorneys allegedly used the threat of a mass action that included concealed fraudulent claims to leverage a higher settlement.

CSX is a shocking case that is part of a larger trend of mass-action defendants pursuing plaintiffs’ attorneys through RICO. The CSX numbers and facts are staggering, but perhaps appropriate if the punishment fits the crime. Rosenbaum argues that it does not. Calling on existing critiques of RICO in other contexts, Rosenbaum points out that necessary legal practice activities, such as making phone calls and filing court documents, become potentially criminal. Moreover, successful RICO claims result in treble damages, which inflate what a party would normally recover in a garden-variety malicious prosecution claim. If we are concerned with ensuring that courts remain open to aggregate litigation claims, Rosenbaum argues, RICO is much too powerful a weapon.

Rosenbaum also presents more nuanced arguments about why RICO is a poor regulation tool against frivolous claims. For example, she argues that RICO unnecessarily usurps state-law methods of regulating litigation. After all, RICO’s pleading standards and burden of proof are lighter than a state-law malicious prosecution claim, and the damages are certainly larger. This makes bringing a RICO claim, rather than a state tort claim, something of a no-brainer for defendants seeking a remedy against vexatious aggregate-litigation plaintiffs’ attorneys, which is exactly the problem that Rosenbaum wants to highlight. Perhaps RICO makes it too easy, producing a negative impact on aggregate litigation overall.

Finally, Rosenbaum points out that RICO is at once under- and over-inclusive. It is over-inclusive because it targets the entire mass action as a violation, not just the handful of baseless claims that may be part of that litigation. It is under-inclusive because it addresses only a sliver of the structural challenges aggregate litigation presents. Again, Rosenbaum does not dispute that over-aggregation is a problem, but relying on defendants’ attorneys to regulate plaintiffs’ attorney conduct seems equally problematic.

If RICO is to remain a part of the litigation game, however, Rosenbaum argues it should be reformed. When pure litigation conduct is challenged, courts could require a showing of malicious intent. This would bring RICO in line with existing common law remedies such as malicious prosecution. It also would re-balance access-to-justice concerns. Our system cannot be completely free from frivolous litigation. Indeed, we must tolerate some frivolousness in order to make room for meritorious claims. Moreover, requiring a showing of intent in the RICO context would not leave defendants without any recourse. They could still use existing remedies for pure litigation conduct, and RICO could be reserved for truly egregious litigation schemes.

Perhaps the title of this essay—Racketeers, Mobsters, and Plaintiffs’ Mass-Action Attorneys—made sense to you as a story about three equivalent evildoers. Or perhaps, like me, this group of individuals struck you as incongruent. Regardless of which explanation most speaks to you, you will benefit from reading Rosenbaum’s take on this emerging development in the civil litigation game.

Cite as: Brooke D. Coleman, Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys, JOTWELL (October 12, 2016) (reviewing Briana Rosenbaum, The RICO Trend in Class Action Warfare, 102 Iowa L. Rev. (forthcoming 2016), available at SSRN),

Common Law in the Age of Arbitration

Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371 (2016).

Judge-made law is dynamic. Rules adapt to innovations in technology, trends in human behavior and markets, and nascent theories that unsettle previously entrenched approaches to a problem. Even when a rule’s basic elements are stable, the accretion of new decisions can lead to subtly different formulations, caveats, and corollaries. Observers might therefore assume that doctrine in any given field will evolve for as long as affected actors are creative and litigious.

But even litigious actors cannot instigate changes to judge-made rules if litigation cannot lead to new judicial opinions. Myriam Gilles proposes a thought experiment to illustrate this possibility in her new article. Suppose that all cases in field X were suddenly shunted to arbitration, such that courts had no further opportunity to write opinions expounding on the law of X. Further suppose that choice-of-law provisions required arbitrators to apply judge-made rules governing X and that arbitrators would not write detailed opinions explaining their decisions (or that their opinions would be inaccessible to nonparties). In this hypothetical regime, the common law of X would stagnate. Doctrine would remain on the books as a source of guidance for arbitrators addressing the idiosyncrasies of individual cases. But those idiosyncrasies would no longer be catalysts for refining the publicly articulated rules that arbitrators apply. Judge-made law would shape outcomes, yet outcomes would not reshape the law.

Gilles’ article offers the game of musical chairs as a metaphor for the doctrinal stagnation that can arise when arbitration supplants public adjudication. When the music stops, players are locked into the arrangement of chairs at that moment. Each player’s position relative to the fixed chairs influences who wins and who loses. Likewise, when arbitrators who do not publish opinions begin deciding all cases in a particular field, litigants are stuck with the formulation of judge-made rules at the time judges were displaced. Given that doctrine is constantly evolving, any muting of public adjudication (the music in this metaphor) will occur after one innovation and before the next innovation. A normative assessment of whether the music has stopped at an appropriate time therefore requires considering both the content of current rules and the lost opportunity for those rules to develop. More generally, if one thinks that the common law process improves doctrine over the long term, then stopping the music at any point in a rule’s evolution may require a compelling justification.

Gilles develops her argument in three steps. First, she discusses several historical trends that coalesced into a movement away from public adjudication. For example, Gilles argues that the Reagan, Bush I, and Bush II administrations invoked the prospect of frivolous suits and burdensome litigation costs to justify making adjudication of a claim’s merits less likely and less effective. Gilles contends that even though legislative initiatives largely fizzled, judicial appointees from these eras successfully implemented what she describes as an “anti-lawsuit agenda.” At roughly the same time, the Supreme Court expanded the scope of the Federal Arbitration Act (FAA) to encompass federal statutory claims. This innovation empowered potential defendants to draft contractual arbitration provisions that circumvented courts in an increasingly wide range of cases, including putative class actions.

Second, Gilles considers the potential consequences of privatizing adjudication in three fields: antitrust, consumer protection, and employment discrimination. Each field features an active common law process in which judge-made doctrines elaborate on sparse statutory language. Each also implicates statutory claims that would arguably be immune from arbitration if the Court retreated from its expansive interpretation of the FAA.

Gilles uses these three fields as grist for a fascinating counterfactual question: How would the substantive law have developed differently if arbitration had been more widely available in the past? Her review of recent antitrust, consumer protection, and employment discrimination cases concludes that many share two characteristics: The parties had a contract, and the court’s opinion meaningfully altered or refined doctrine. These observations suggest that if the contracts had included an enforceable arbitration clause, then many important opinions never would have been written. Modern doctrine in this counterfactual world would include elements that were destined to change, but that persisted because of the shift from public to private adjudication.

The case studies provide a concrete illustration of how arbitration can “freeze” doctrine. If the Supreme Court interprets the FAA to allow arbitration of a particular claim, and if actors draft arbitration clauses that encompass such claims, then courts will lose opportunities to modify judge-made rules. The rules will persist, but they will not evolve. Of course, evolution in an adversarial system is not always for the best; any given change will have supporters and opponents. The prospect of doctrinal stagnation is nevertheless interesting even if its normative implications are not always apparent.

Third, Gilles notes that arbitrators can mitigate stagnation by publishing reasoned opinions. But she contends that arbitrators have little incentive to replace courts as public expositors of law because arbitration thrives on confidentiality and streamlined procedures. Courts could create such an incentive by refusing to confirm arbitral awards without a reasoned opinion, but that is not a path that FAA jurisprudence has taken.

Gilles’s analysis has several interesting implications. As she acknowledges, her thesis builds on earlier work by Owen Fiss exploring the risk that settlements pose for the explication of public law. Fiss was concerned about cases dropping out of the judicial system before a final decision, while Gilles is concerned about cases never reaching the judicial system. Both issues require assessing the value of judicial opinion-writing and weighing that value against the potential benefits of using private agreements to streamline dispute resolution.

Gilles’s argument also suggests that certain kinds of claims may be more susceptible to doctrinal stagnation than others. For example, suppose that claim Y arises exclusively in a context where the parties have a contract and one party has leverage to compel arbitration. In contrast, claim Z arises roughly equally in cases with and without contracts. Applying the FAA to claim Y would remove from the judicial system all or most cases raising Y, while applying the FAA to claim Z would leave courts free to adjudicate the subset of Z claims that do not involve a contract. Enforcement of arbitration clauses might therefore be more troubling in the Y context than in the Z context if the stagnation of doctrine is a legitimate factor to consider when allocating claims between public and private fora.

Another intriguing question arises from Gilles’ implicit assumption that reducing the number of judicial opinions in a field reduces innovation. A decline in the number of cases that courts adjudicate does not necessarily mean that rules will stagnate. What matters is whether the remaining cases provide a sufficient foundation for innovation. There is no obvious way to determine how deep the pool of justiciable cases needs to be, which complicates any effort to determine if arbitration has excessively drained it. Scholars might therefore consider how to identify the minimum number and variety of cases that courts must adjudicate in a given field to ensure that rules remain sufficiently dynamic.

Finally, lawyers will presumably engage in strategic behavior as they encounter the risks that Gilles identifies. The article focuses on scenarios where judges can no longer rule on an entire category of claims, such that the law becomes completely frozen. These scenarios illustrate the article’s theoretical point, but in practice may be outliers. Contracts are not ubiquitous in many areas of law, some contracts will not contain an enforceable arbitration clause, judicial review of arbitral awards may provide an opportunity to expound on rules applied by arbitrators, and government agencies may be able to file enforcement actions even if individual plaintiffs lack a right to sue.

The possibility that public adjudication will persist alongside arbitration means that the relevant ice metaphor is not that doctrines will entirely freeze. Instead, the pace of evolution might become relatively glacial. A lingering window for judicial decisionmaking will create opportunities for strategic behavior designed to induce doctrinal change. For example, government lawyers may bring enforcement actions that they hope will result in new judicial precedent for arbitrators to follow, public interest lawyers may look for test cases in which arbitration is not an obstacle to adjudication, and defense lawyers may seek opportunities to reshape rules with which their clients disagree. Stagnation of legal doctrine is therefore not an inevitable consequence of sending more cases to arbitration, but rather a risk that well-informed actors may attempt to avoid or exploit. The strategies that actors might employ would be an interesting topic for further study.

Gilles has creatively explored a difficult problem with a thought-provoking counterfactual experiment. Her analysis is an illuminating addition to the literature about the relative merits of public and private adjudication.

Cite as: Allan Erbsen, Common Law in the Age of Arbitration, JOTWELL (September 23, 2016) (reviewing Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371 (2016)),

The Vanishing Poor

It’s certainly not news that, in recent years, the Supreme Court majority has been unenthusiastic about class actions. Reinterpretations of procedural rules and standing requirements make class certification more difficult and efforts at certification more expensive. Ever-broadening interpretations of the Federal Arbitration Act also move claims out of courts and prohibit aggregation of claims in arbitration. Procedure scholars have lamented these decisions for years, as the gradual accretion of unfortunate decisions continues.

I love this essay by Myriam Gilles because it changes my focus from processes to people and shines a light on the groups whose claims disappear in the absence of class action litigation. Conceptually, I’ve talked about “negative value claims” or perhaps “consumers” and “employees,” but unconsciously saw the issue through the lens of my own class-member settlements in cases involving unauthorized foreign transaction fees and excessive e-Book prices. I failed to think through the many ways in which those SCOTUS decisions have a systemic and devastating impact on the poor and powerless.

Class Warfare explores three interconnected implications of the decline of class actions and their impact on low-income groups. First, it explores the ways in which the poor are particularly vulnerable to the kinds of unlawful practices that require aggregation for a remedy: low-value consumer claims and group-based workplace harms. Lack of access to conventional credit markets makes low-income consumers targets of financial abuses such as predatory lending, abusive mortgage terms, and subprime car loans. Payday loans are a particular scourge. Gilles argues that although there have been some efforts at regulatory enforcement, private class litigation has been an important tool in reigning in improper practices. She points to the class action against ACE Cash Express that settled in 2003, resulting in loan forgiveness, changed practices, and modest cash payments.

As for employees, Gilles posits that low-wage workers are more often victimized by employers. Explanations vary: they have less bargaining power, they lack information about alternatives, and they are rationally risk-averse (having no economic cushion in the event of dismissal). The result is lower pay, fewer benefits, less job security, more discrimination, and more violations of wage and hour laws. Again, there are some legislative and regulatory measures available, but for groups without political clout, aggregate litigation is a more effective alternative. Gilles does include a footnote identifying one fascinating example of nonjudicial self-help, however: an immigrants’ rights group has developed a smartphone app for day laborers. According to an article describing the app, “Workers will be able to rate employers (think Yelp or Uber), log their hours and wages, take pictures of job sites and help identify, down to the color and make of a car, employers with a history of withholding wages. They will also be able to send instant alerts to other workers.”

Gilles’ article’s second point focuses on the potential impact of successful class litigation, where the small monetary claims are not individually feasible but aggregation provides a powerful tool for group relief. The most important benefit comes not from individual class-member payouts (“small value class actions [are] quite poor vehicles for efficiently distributing tiny per-person damages”) but from broad-based injunctive relief and from the deterrent effect of forcing the defendant to internalize the social cost of its actions. Gilles suggests that both specific and general deterrence are at work. Without such deterrence, exploitative practices will repeatedly impact the same people. “[W]hen members of low-income groups suffer group-based harm, there is a high likelihood that precisely the same individuals will suffer precisely the same harm in the future given the inability to escape poverty. And further, it is likely that their children (and possibly grandchildren) will also suffer the same harms in the more distant future.”

Third, and equally worrying, Class Warfare identifies potential long-term effects of losing class actions that invoke the rights of low-income litigants. Will some types of litigation disappear from the docket (because litigating individual claims is not economically viable)? If so, will courts lose the ability to develop the law in those areas? And when both people and legal issues have almost vanished from the docket, will judges – themselves likely to come from high-income backgrounds – lose the ability to understand the lived reality of low-income people? To be sure, this cultural blindness already exists. Gilles cites United States v. Kras (1973) as an example of some Justices’ making false assumptions about the ability of a bankruptcy debtor to make payments and find a job. Judges, as humans, have the same kinds of implicit biases as the rest of us, and when there is no judicial exposure to poverty to enrich the lens through which judges view facts, inexperience can morph into fact-finding errors. This is all the more problematic at a time when judges are increasingly called upon to decide whether inferences from circumstantial evidence are plausible and whether discovery expenses are proportional given the “importance of the issues at stake in the action” and “the parties’ resources.”

One could quibble with some of Gilles’ points. Some of the abuses of the poor are legal, there are some agencies charged with providing relief, and some cases will find their way to court. Nonetheless, Class Warfare correctly describes the overall impact of court-rationing on low-income groups. Once again, the “Haves” come out ahead.

For some, the popular culture class action story is about greedy plaintiffs’ lawyers getting rich raising frivolous issues like the lack of vitamins in Vitamin Water and the presence of pesticides in “all-natural” tea. Gilles’ article is an important reminder that more is at stake. Procedural change has predictably disproportionate impact on those without the financial and legal resources to fully utilize the court system. It’s not just generic “consumers” and “employees” who suffer when class actions become unavailable; the burden will fall most heavily on those who have the least.

One last note: Class Warfare is part of a symposium issue of the Emory Law Journal (vol. 65, issue 6). Procedure scholars interested in Gilles’ essay will also find other articles in the issue fascinating.

Cite as: Elizabeth G. Thornburg, The Vanishing Poor, JOTWELL (September 9, 2016) (reviewing Myriam Gilles, Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket, 65 Emory L.J. 1531 (2016)),

How and Why Representation Matters

Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise, 93 Denv. L. Rev. 469 (forthcoming 2016), available at SSRN.

The sociologist Rebecca Sandefur estimates that a staggering one in three members of the population experiences a civil justice problem every year. Recent reports consistently pronounce that a glut of newly minted lawyers is crowding an oversaturated market. Yet low- and moderate-income Americans are far more likely than not to attempt to protect important rights to housing, custody, financial security, and physical safety without the benefit of attorney assistance. A conservative estimate puts the number of unrepresented parties in the civil justice system at twelve or thirteen million. Gillian Hadfield and James Heine suggest that the inaccessibility of legal services leads nearly forty percent of Americans to “lump” their civil justice problems, or do nothing to solve them.

In light of these distressing statistics, two hot topics in access to justice have emerged in recent years. In one camp are those who promote the need for a right to counsel—a “civil Gideon”—in a broader range of civil cases. In a second camp are those who propose innovative models for the distribution of scarce attorney resources, including the delivery of “unbundled,” or brief, services in lieu of full representation, as well as the licensing of non-attorneys to handle routine legal matters.

One complication in evaluating the various proposals to increase access to legal services is that we lack the robust empirical data necessary to determine whether, and in what forms, attorney representation makes a difference. And that is where Colleen Shanahan, Anna Carpenter, and Alyx Mark’s outstanding article comes in.

While several previous studies have examined the binary question of whether the provision of attorney assistance impacts outcomes, these authors take the analysis further. Reviewing 1800 unemployment insurance cases in an independent and professionalized administrative court, they examine not just whether representation correlates to improved case outcomes, but also the significantly more complex question of how and why representation matters.

Relying on their significant data set, the authors find that representation is positively correlated with favorable outcomes. This finding is intuitively sound and corroborates much of the extant literature on attorney impact but, on its own, is more confirmatory than revelatory. The authors go further, however, exploring various aspects of attorney and lay representation that might account for improved outcomes. They unpack the case and litigant characteristics associated with a range of outcomes and suggest that two primary factors may influence whether representation makes a difference: balance of power between the parties and strategic expertise.

In the authors’ data set, the balance of power influenced how much benefit the parties derived from representation. When the parties lacked other types of power, representation produced the most significant effect on outcomes. For instance, represented claimants were awarded unemployment benefits at three times the rate of their unrepresented counterparts. By contrast, represented employers did not have a statistically significant advantage over unrepresented employers. The authors attribute this difference in representation outcomes to the social and economic power that claimants lack and employers enjoy. Their finding lends empirical heft to Marc Galanter’s theory that the “haves” often outperform the “have nots” in the legal system—even in the absence of representation—because of the knowledge and social power they bring to their legal matters.

The authors also develop the concept of “strategic expertise” and contend that it plays a role in effective representation. They define this as a representative’s ability to “connect formal training with situational understanding.” And they show that it is not simply representation that matters, but also how that representation is deployed. For example, attorneys are more likely to utilize procedural entitlements, such as witness disclosure and document production. And while we might expect this to correlate to more favorable outcomes, it does not always do so. Indeed, in a fascinating illustration of their theory of strategic expertise, the authors show that attorneys who presented evidence on behalf of a claimant fared less favorably than those who withheld documents and instructed their clients to remain silent. While it is common in a criminal trial for a defendant to refrain from testifying, the decision to withhold party evidence in a civil case—especially one held in an informal administrative tribunal—is not a matter of conventional wisdom. This is where strategic expertise comes into play. The attorney must take into account the claimant’s burden of proof, the signaling effect that introduction of evidence may have on the judge’s perception of relative case strengths, and the potential for backlash against zealous representation in a tribunal where the vast majority of claimants are unrepresented.

In tackling the question of why and how representation matters, the authors also uncover important data regarding the impact of assistance that falls short of full representation. In a surprising finding, they note that a substantial percentage of “represented” employers did not have representation at the administrative hearing itself. Presumably, this type of representation resembles the model of “unbundled” assistance, in which the representative offers advice or document preparation, but not the full panoply of attorney services. The authors demonstrate that such behind-the-scenes representation may not translate to favorable case outcomes. According to their data, employers nearly tripled their prospects of winning when they had full representation at the hearing. This suggests that “unbundled” services, a hotly debated proposal for improving access to justice, may deprive parties of the strategic expertise that traditional attorney assistance brings to the table.

Shanahan, Carpenter, and Mark’s data offer considerable opportunity for future analysis, and I most look forward to a fine-grained evaluation of the comparative advantages of attorney and non-attorney assistance. This study analyzed “representation” wholesale, although thirty-eight percent of represented employers were assisted by professional lay advocates, not lawyers. The authors promise to address the distinction in their next article, using a much larger data set and qualitative interviews. This new data may provide important clues as to when and how non-lawyers may be able to bring strategic expertise to the table and impact the balance of power. And it comes as Washington State pilots a controversial program to certify Limited License Legal Technicians to represent clients in certain circumstances.

Shanahan, Carpenter, and Mark’s article offers a window into the potential of evidence-based research on questions of access to justice. We are in an age of innovation with respect to the delivery of legal services to low- and moderate-income individuals. Full attorney representation is a rare luxury that few can access. To design effective and alternative models of service delivery, it is essential to understand the particular aspects of representation that are most critical to a case. This article effectively combines Shanahan and Carpenter’s firsthand experience in litigating unemployment insurance cases as clinical professors with Mark’s social science expertise. The authors should be applauded for advancing our understanding of representation in context and for producing excellent access-to-justice scholarship that is both theory-proving and theory-generating.

Cite as: Jessica Steinberg, How and Why Representation Matters, JOTWELL (August 17, 2016) (reviewing Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise, 93 Denv. L. Rev. 469 (forthcoming 2016), available at SSRN),

Classing up the Agency

In previous jots, I have highlighted articles that addressed not the why of procedure but the how. Although other forms of legal scholarship are valuable, I have always had a soft spot for legal scholarship that provides guidance for judges and policymakers on how best to set up legal procedures.

It should therefore come as no surprise that a recent piece that I like lots is not a journal article, but a government report that addresses the problem of mass litigation in administrative agencies. The report discusses, and recommends, the use of class action and similar procedures in administrative adjudicatory proceedings that involve numerous claimants against one or a few defendants. Unlike a law journal article—which, like a message in a bottle, may float out to sea never reaching its intended audience—this report not only directly addresses policymakers, but they actually read and implemented it.

The report is the result of a law journal article serendipitously reaching its intended recipient. It is the brainchild of Adam Zimmerman and Michael Sant’Ambrogio, who published an article in 2012 proposing the use of class action and similar aggregate litigation procedures in administrative adjudication (an article that I liked lots in a different forum). The article caught the attention of the Administrative Conference of the United States (ACUS), an independent federal agency focusing on improving administrative processes. ACUS then asked Zimmerman and Sant’Ambrogio to study the use of aggregate procedures in federal agencies and make recommendations. This report is the result of that study.

Zimmerman and Sant’Ambrogio’s law review article is akin to a doctor making an initial diagnosis. Here, that initial diagnosis concerned the problem of numerous claims against a common defendant. Even with the more streamlined procedures of administrative adjudication, it can be difficult for claimants to finance and litigate given the costs. In contrast, a defending party can spread its costs on common issues across all of the numerous claims, thereby reducing the cost for each claim. As a result, the defendant invests more in common issues because it has more at stake. The report offers several vivid examples – providers and hospital claims against Medicare, EEOC claims of discrimination on behalf of thousands of employees against a single employer, or vaccine defect claims against large pharmaceutical companies made in the National Vaccine Injury Compensation Program.

But the report goes beyond diagnosis, looking more like an exhaustive physical examination and treatment plan. One important contribution is cataloguing class action and similar aggregate procedures already in use by some agencies, although the vast majority of agencies historically have not utilized or developed such procedures. In general, class actions and similar aggregate procedures alleviate the problem of “asymmetrical stakes” between the numerous plaintiffs and the defendant, by incentivizing third parties such as the class attorney to make proper investments in common issues and by streamlining procedures through the use of statistical sampling and bellwether trials. The different procedures developed at these few agencies are a testament to the ingenuity of administrators, who saw the failure to address aggregate procedures in the Administrative Procedures Act (APA) as an invitation to innovate procedures on their own.

For example, in the National Vaccine Injury Compensation Program, which displaced the existing tort system with an administrative procedure for defect claims, vaccine claims filed against manufacturers were initially adjudicated one claim at a time. This obviously overwhelmed the small office of eight adjudicators charged with adjudicating the claims. But this “small office” ingenuously used its “inherent authority to use ‘specialized knowledge’ to resolve common scientific issues in a consistent and informed way,” thereby streamlining individual claim adjudication. It also used “omnibus proceedings” which “loosely resemble multidistrict litigation, bellwether hearing procedures, and creative case-management techniques” to ensure adequate public input and investment on the resolution of these common issues. The Office of Medicare Hearings and Appeals not only utilized similar aggregate procedures, but instituted a “statistical sampling initiative” to deal with overpayments to avoid deciding such issues on a claim-by-claim basis.

In June 2016, the Administrative Conference, relying on the report, adopted a series of recommendations that are careful and sensible, reading like a greatest hits of best practices in dealing with high volume claims with common issues against a single party. They include defining when aggregate procedures should be used and what principles should apply in limiting these procedures. The recommendations urge agencies to “encourage[e] adjudicators and parties” to help identify common issues in cases that would benefit from aggregate procedures. They also ask agencies to ensure that all procedures are proposed and adopted publicly and transparently. These recommendations have since been published in the Federal Register, and have already been influential. For example, the Department of Education recently proposed class action rules for student loan forgiveness claims against predatory and insolvent for-profit colleges.

The legal academy is often chastised for not addressing the problems of policymakers. I do not think that legal scholarship should solely address current problems, and JOTWELL does an extraordinary job of highlighting successful scholarship achieving a variety of objectives. But the criticism itself is also overstated, because it ignores the good work done by scholars who assist with legal reform. This report is a great example of legal scholars and policymakers working together to solve important problems.

Cite as: Sergio J. Campos, Classing up the Agency, JOTWELL (July 25, 2016) (reviewing Administrative Conference of the United States, Aggregate Agency Adjudication, Final Report (June 9, 2016); Administrative Conference of the United States, Administrative Conference Recommendation 2016-2, Aggregation of Similar Claims in Agency Adjudication (June 10, 2016)),