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)),

Saving the Public Interest Class Action by Unpacking Theory and Doctrinal Functionality

David Marcus, The Public Interest Class Action, 104 Geo. L.J. 777 (2016).

Scholars, lawyers, and litigants struggle to understand the class action landscape that has evolved over the past five decades and has sharply contracted more recently. Seminal rulings such as Wal-Mart v. Dukes and its progeny in the lower courts have sown division and analytical confusion over the meaning and normative value of this obstructionist shift in jurisprudence. In The Public Interest Class Action, David Marcus dives into this morass, examining one slice of this jurisprudential retrenchment and its varied implications—class action procedure in public interest litigation, litigation brought against government officials and agencies for injunctive relief.

Marcus’s focus on structural-reform cases against public actors illustrates how most of the policy concerns animating class certification retrenchment are unjustified, misplaced, and dangerous to enforcement of constitutional rights. Much of the academic critique has centered around the role of monetary interests in aggregation—a distortion and distraction for understanding the public interest class action. The casualties of this misalignment are vulnerable populations such as foster children, prisoners, and students with disabilities, who have historically successfully sought structural remedies through aggregate litigation. Marcus speaks directly to judges chewing on how to approach class-certification motions and counsels them to manage structural reform litigation, not destroy it. Marcus puts retrenchment advocates to their proof, concluding that they have failed to prove how public interest class actions pose policy problems that can be rectified by Rule 23 obstructionism.

The article sets up the shift in class action treatment in recent history. The “Old Era” was characterized by easy certification of public interest classes, with Rule 23(a)(2) commonality and the Rule 23(b)(2) injunctive class as the two primary entry points. Commonality was easily satisfied, as the common issue was defined at such a high level of abstraction that the mere question of liability or allegation of group harm often sufficed. Moreover, courts were reluctant to engage the merits when determining whether commonality was met. Rule 23(b)(2) was also easily cleared, and in fact, was designed with civil rights and group rights in mind.

By contrast, the “New Era”—foreshadowed by Judge Frank Easterbrook in 2008 and in full bloom over the last decade as seen in cases such as Wal-Mart—has erected numerous barriers to public interest class litigation. By heightening commonality and refashioning Rule 23(b)(2) to require indivisibility of remedy, Wal-Mart has hampered structural reform litigation that does not affect policy concerns over monetary interests the opinion purported to address. Lower courts have followed suit, regardless of the inapplicability of monetary stakes in public interest aggregation.

Without answering why this class action retrenchment has occurred, Marcus argues that judges should use class action procedure consistent with the function of Rule 23. As a starting point, he recognizes two characteristics of classes certified for injunctive relief: claim interdependence and remedial indivisibility. He then creates a three-part typology based on the different degrees of each characteristic in a particular case: I) necessarily interdependent & necessarily indivisible; II) necessarily interdependent & plausibly indivisible; or III) plausibly interdependent & plausibly indivisible.

Marcus provides useful examples. For example, a Type I case is one that involved plaintiffs challenging California highway patrol officers for enforcing a state law that punishes motorcyclists who do not wear helmets that comply with federal law. Plaintiffs contended that stopping motorists without knowing if their helmets were out of compliance necessarily lacked reasonable suspicion, in violation of the Fourth Amendment. They consequently sought to enjoin enforcement of the state law. These claims are necessarily interdependent because a judge cannot determine the validity of one motorcyclist’s claim without determining the validity of all others. Moreover, the remedy is necessarily indivisible because a remedy for one motorcyclist–an injunction prohibiting enforcement of the law—would inure to the benefit of all.

An example of a Type II case is one that involved same-sex couples challenging Virginia’s prohibition on same-sex marriage. The plaintiffs sought an injunction prohibiting enforcement of the state law prohibiting same-sex couples from obtaining marriage licenses and ordering the responsible county clerks to issue licenses. These claims are necessarily interdependent because, again, a judge cannot determine the lawfulness of the state policy against same-sex marriage for one couple without determining the same for all others. Because a court could theoretically require different remedies for each couple denied a license by each county clerk, however, the remedy is plausibly indivisible. Individually tailored injunctions, although unlikely, are possible.

An example of a Type III case is one that involved prisoners alleging a variety of problems with the healthcare provided by ten prison complexes operated by the Arizona Department of Corrections. Unlike the express policies targeted in Type I and II cases, a Type III case targets a custom or practice of deliberate indifference that plays itself out in myriad ways for thousands of prisoners at the hands of different corrections officers. These plaintiffs’ claims are only plausibly interdependent and their remedies only plausibly indivisible. This is not to say that a judge could not find unlawful systemic indifference that is manifested in different ways as to different people and issue an injunction to address the statewide problem. But depending on the level of harm challenged, the judge could also recognize individual claims and divisible remedies. The Type III public law litigation case prompts the most significant question about the propriety of Rule 23 certification.

Rather than look to the text and history of Rule 23 to explain the need for class actions in public law litigation, Marcus considers how standing and scope-of-remedy doctrines—what he calls the “right plaintiff principle”—undermine the class action device. These doctrines dictate whether the right person is seeking injunctive relief from the defendant on both the front and back ends of the litigation. Standing requires that a plaintiff have a personal stake in the outcome and suffer a personal injury-in-fact rather than a generalized one, thereby ensuring the development of a real factual record and concrete adversity necessary for informed adjudication. Standing restrictions also protect separation of powers by allowing only individuals with concrete harms to use the power of judicial enforcement, leaving citizens with generalized grievances to use the legislative process as the default for obtaining relief. Scope-of-remedy similarly requires a court to narrowly tailor relief to the actual case before it, thereby protecting the province of other courts and the circumspect range of judicial power.

These doctrines, although workable in Type I and II cases, make it difficult for an individual to successfully pursue structural reform in Type III cases. Marcus explains how the substantive law in Type III cases often vests claims in groups—an interest that is thwarted by the standing and scope-of-remedy doctrines. Relying on evidence of other individuals’ experiences in Type III cases to establish systemic liability “hardly opens the courthouse doors to ordinary members of the public and to preferences better vindicated in political arenas.”

Marcus argues that the result of this right plaintiff principle is substantive legal dormancy. And the antidote to this dormancy is the class action, properly administered.

Class action procedure can serve as a counterweight to the right plaintiff principle in public law litigation. For example, the class action requirement of commonality ensures a common course of government conduct that affects the class representative and class members alike, making the representative more than a generalized aggrieved citizen and ensuring a factually concrete record. Similarly, the juridical link between the defendant’s conduct toward the representative and toward class members means the remedy need not be limited to the class representative. Moreover, the class representative has remedial standing to seek an injunction regardless of the likelihood of future harm, because she functions as an undifferentiated member of a group vested with a claim recognized by the substantive law. So long as the class representative functions in this manner, the right plaintiff principle is not undermined.

The “class action’s chief function for public interest cases [is] to enable the vindication of claims the substantive law vests in groups, when other strands in the web of doctrinal governance for public interest litigation would unnecessarily render them dormant.” This function can guide judges in the proper administration of Rule 23.

Marcus circles back to his typology to demonstrate how the counterweight function of the class action must do heavier lifting in Type III cases. Type I and II cases, although more paradigmatic class cases, ironically need class certification less because of the relatively seamless connection between the individuals’ claims and remedies—the tighter the nexus, the less necessary certification is. In Type III cases, however, the distinction between the individual and the group matters.

The solution is for judges to focus on that function in applying both commonality and Rule 23(b)(2). Marcus proposes that judges consider two criteria for commonality: 1) proof that the substantive law vests a claim in a group that the class representative wants to represent and 2) proof that the group actually exists. An illustration is a Title VII pattern-or-practice claim for prospective relief. He similarly suggests that judges considering the counterweight function cabin Rule 23(b)(2) to those injunctions whose administration does not require individual determinations for each public interest plaintiff. In other words, the remedy sought should be broad and undifferentiated, in line with Rule 23(b)(2)’s constrictions.

In sum, this article makes an important contribution by challenging judges to consider the theory and doctrine of public interest class actions post-Wal-Mart. Its defense of modern structural reform litigation and argument against the misuse of class action procedure offers much to the literature, jurisprudence, and practice.

Cite as: Suzette M. Malveaux, Saving the Public Interest Class Action by Unpacking Theory and Doctrinal Functionality, JOTWELL (June 29, 2016) (reviewing David Marcus, The Public Interest Class Action, 104 Geo. L.J. 777 (2016)),

The Irrepressible Myth of SCOTUS

Corinna Barrett Lain, Three Supreme Court “Failures” and a Story of Supreme Court Success, 69 Vand. L. Rev. 1019 (2016).

In The Case Against the Supreme Court, Erwin Chemerinsky explains why he is disappointed in the Supreme Court and its failure to function as it is designed—as a countermajoritarian check on society’s worst majoritarian impulses, protecting individual rights from popular encroachment and offering a venue to minorities shut out of success in the political process. Commenting on the book, Corinna Lain argues that the source of Chemerinsky’s disappointment is his expectation that this is the Court’s function. And, she argues, the source of that expectation is the Supreme Court itself. On Lain’s telling, every case in which the Court is perceived to have “failed” in its countermajoritarian role actually reflects the Court’s success in furthering the story (I might label it a “myth”) of what it does, what it should be, and what many scholars (I would put myself in this group) hope and expect it to be.

Lain focuses on three cases routinely disparaged as judicial failures–Plessy v. Ferguson (upholding segregated railroad cars and, by extension, Jim Crow laws), Buck v. Bell (upholding forced sterilization programs), and Korematsu v. United States (upholding the exclusion of people of Japanese ancestry from the West Coast). All are uniformly recognized today as among the most grievous examples of the Court failing to protect individual rights and vulnerable minorities.

But Lain argues that the historical and cultural contexts in which the Justices operated explain, even if they do not normatively justify, the outcomes in each case. Plessy and Buck reflected what, at the time, were widely popular, accepted, and even progressive views—Booker T. Washington and other prominent African-American leaders supported segregation, Helen Keller and Margaret Sanger supported eugenics (the scientific theory underlying forced sterilization). Korematsu followed a genuinely earth-shaking event and was decided in a period of total war, over which the Court was not likely to challenge the public and the war-making branches. In fact, Lain argues, a closer look at Korematsu’s internal dynamics shows the Court doing more than we might expect–it refused to lend judicial imprimatur to internment, performing “judicial backflips” to rule only on the constitutionality of exclusion and not pass on the validity of internment). And in Ex parte Endo, Korematsu’s companion case, the Court ordered the government to release those whose loyalty had been established. Moreover, none of the three “failures” was obviously incorrect on the law as it stood at the time—the problem with these cases is not doctrinal, but that each rests on “value judgments that we strongly reject today.”

Cultural and historical context in turn affects how we should understand the judicial role. The Justices are part of the broader society and share many of its widely held ideas, which the Court’s judgments inevitably reflect. The Court’s “failures” are not necessarily decisions in which the Justices recognized a wrong but refused or were unable to stop it out of fear—the concerns that Article III protections of life tenure and guaranteed salary are designed to alleviate. Rather, the Justices shared the prevailing legal, political, and social views informing the challenged actions and simply were not going to depart from those views. That prevailing culture sets “limits on the plausible constitutional outcomes that a majority of the Justices might find agreeable,” simply because the Justices, even subconsciously, are immersed in that culture. It is unfair, Lain insists, to expect them to depart so far from societal norms that they themselves share.

Lain generalizes this argument to judicial review more broadly. In particular, it explains why the Court has most vigorously protected minorities from majoritarian overreach at the state and local, rather than national, levels. She cites the invalidation of segregated education in Brown and the recognition of procedural protections for criminal defendants in Gideon v. Wainright; we could add free speech, where the Court protected civil rights protesters and their supporters from local restrictions, but not communists or anarchists from federal prosecution. As Lain argues, when “the problem is not a pocket of oppression but rather society itself, the same values that permeate the rest of the population are highly likely to color the Justices’ views too. And that limits what the Supreme Court can realistically do.”

Yet Chemerinsky and others remain disappointed that the Court has not lived up to some ideal as a countermajoritarian protector of politically powerless minorities. Importantly, however, they can be disappointed in the Court only if they were expecting it to do better. And given Plessy, Buck, and Korematsu (to name only three), we might wonder where that expectation comes from. According to Lain, it is because the Court has convincingly established this as its role, even while not always performing it (at least not in the way many would like). Lain argues that this “role is not inherent in the Court’s composition; it did not spring forth from the Constitution fully formed. It did not have to be, but it is, and it is because the Court created it.”

Beginning with Footnote 4 of Carolene Products, the Court has sprinkled decisions with rhetorical flourishes about its standing as the bulwark protecting individuals and the Bill of Rights against the tide of popular passions, and about conducting more searching judicial inquiries into laws that disadvantage discrete and insular minorities or that touch on specific constitutional prohibitions. The Court even did this in Korematsu itself, dropping what Lain calls an “awkwardly placed” declaration that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect,” before pronouncing that suspect legal restriction constitutionally valid.

And this idea has stuck. It does not matter that the Court often has rejected the rights claim amid the rhetoric. Nor does it matter that even the Warren Court, held up as the one true period of countermajoritarianism, often acted in step with, rather than against, larger socio-political changes. Nor does it matter that some of the most rights-protective Justices have produced the greatest failures—Justice Black wrote, and Justice Douglas joined, the majority in Korematsu; Justice Holmes wrote Buck nearly a decade after planting the seeds for vigorous judicial protection of free speech.

At the same time, this rhetorical creation has some practical benefits. First, the Court’s self-conception as countermajoritarian defender frees it to actually play that role, at least at times. Broad public acceptance of the Court’s rhetoric allows the public to accept at least some of the decisions in which the Court flies in the face of majoritarian sentiment. While we do not have a full understanding of when the Court will choose to play the countermajoritarian role and when it will not, Lain argues the Court can do so even occasionally only because it has put itself in this rhetorical position. Second, the Court’s promotion of this ideal influences those who argue before and write about the Court (Chemerinsky regularly does both). It prompts them to continue bringing their arguments to the Court, continue talking about the Court, and, most importantly, continue responding to their disappointments by refining their arguments and critiques until they find the ones that work, both with the Court and with the public. As Lain summarizes the point, “the Justices cannot transcend the culture in which they live, but the expectations the Court has created can do something better—they can set in motion the very forces that can, over time, change culture itself.”

This article continues two significant recurring themes of Lain’s larger body of scholarly work—the role of cultural and historical context in constitutional decisionmaking and the historical inaccuracy of the Court’s countermajoritarianism narrative (even in those cases in which it “succeeds” in protecting individual rights). It then adds a new piece to that puzzle—the self-reinforcing influence of the Court’s rhetoric on the Court and on our expectations. Regardless of what the Court actually does or why, the expectations themselves tell “a separate, and decidedly consequential, story of Supreme Court success.”

Cite as: Howard M. Wasserman, The Irrepressible Myth of SCOTUS, JOTWELL (June 1, 2016) (reviewing Corinna Barrett Lain, Three Supreme Court “Failures” and a Story of Supreme Court Success, 69 Vand. L. Rev. 1019 (2016)),

Fit to Be Tied

Justin Pidot, Tie Votes in the Supreme Court, Minn. L. Rev. (forthcoming 2016), available at SSRN.

Ever since Justice Scalia passed away in February, the Supreme Court of the United States has been operating with eight justices. As readers are surely aware, this is one justice short of its statutorily mandated population of nine.

There is widespread consensus among mathematicians that the number eight is evenly divisible by two, while the number nine is not. So it should come as no surprise that the Supreme Court has handed down several 4-4 decisions in recent months, with more expected before the Term wraps this June. In light of Senate Republicans’ refusal to hold a hearing on President Obama’s nominee to replace Scalia—and predictions that such a stalemate might extend well into the next President’s term—this even-numbered state of affairs could well become the new normal. Enter Justin Pidot’s article, which provides a timely, thoughtful, and informative examination of tie votes at the Supreme Court.

Pidot begins with a little history. The basic rule that a tie vote leads to an affirmance of the lower court decision—but does not establish any binding precedent—is almost as old as the Republic itself. It dates back to the Court’s 1792 decision in Hayburn’s Case, when a six-justice Court divided equally on whether our nation’s first Attorney General, Edmund Randolph, had the authority to file a petition for mandamus ex officio.

Next, Pidot sets out the results of his empirical analysis of tie votes between 1925 and 2015. (He chose the starting date because the 1925 Judiciary Act made it so the vast majority of the Supreme Court’s docket would be at the Court’s own discretion, via a writ of certiorari.) Pidot limits his study to cases where the Court is equally divided on the judgment, rather than where the Court is equally divided as to the reasons for the judgment. Pidot also excludes from his dataset motions—such as requests for stays or writs of mandamus—that the Court denied because of a tie vote.

Within these parameters, Pidot finds 164 tie votes during the period from 1925 to 2015. He reports that in 149 of these, the Court did not identify how each of the voting Justices voted, and neither the Court as a whole nor any individual justices provided any reasoning or explanation in support. This is consistent with the one-sentence rulings we have seen from the Court so far this Term: “The judgment is affirmed by an equally divided Court.”

Pidot then turns to the fifteen cases that do not fit this description. In some, the Court noted its equally divided vote on a particular issue as part of a larger opinion resolving the case on other grounds. (This happened again just recently in Franchise Tax Board v. Hyatt, where the post-Scalia Court split 4-4 on whether to overrule Nevada v. Hall, but a 6-2 majority reversed the lower court’s judgment on other grounds.) In others, the Court divided equally as to one party but made some other disposition as to other parties—such as dismissing cert as improvidently granted (a “DIG”), or granting cert but vacating and remanding for reconsideration in light of some other decision (a “GVR”). Pidot also found one fascinatingly odd case where the Court granted certiorari and—in the same order and without merits briefing or oral argument—affirmed by an equally divided court. There were only three cases in the dataset where any justices authored an opinion that explicitly revealed their views about the particular issue on which the Court divided equally.

Pidot’s article also explores the normative implications of 4-4 ties. The major practical downside of such decisions is that they can compound a lack of uniformity in the federal judiciary, because they fail to generate binding precedent that otherwise could have resolved disagreements among lower courts. These concerns have prompted some to call for institutional changes—such as the appointment of substitute justices—to avoid tie votes.

To assess the extent to which this has been a problem, Pidot looks at the 21 tie votes that occurred between 1986 and 2010. He argues that the lack of precedential decisions in those cases did not significantly undermine uniformity. It remains to be seen whether this will still be the case if we find ourselves in a sustained period of only eight justices—rather than the more typical situation where eight-justice decisions result from occasional recusals in particular cases. But Pidot’s findings from these 21 cases are very interesting. He identifies six cases where there had not been a split of lower court authority before the Court granted cert; thus the lack of a binding Supreme Court decision did not allow a lack of uniformity to persist. In nine cases where a circuit split did exist, the Supreme Court granted cert in a later case and resolved the disagreement. For cases in this category, the two longest delays between the 4-4 affirmance and the later cert grant were nine and ten years; all of the others were four years or less (in one instance, the Supreme Court decided a follow-up case within five months). Pidot also finds two examples where a split was resolved notwithstanding the 4-4 Supreme Court affirmance, either because some lower courts changed their position or because the Executive Branch promulgated clarifying regulations. He concludes that there were only three examples during this period where an important circuit split remained unresolved following a tie vote at the Supreme Court.

Pidot proposes one change to the way 4-4 votes are currently handled. He argues that the ultimate result of a tie vote should not be an affirmance of the lower court. Rather, the Court should DIG such cases. This would have the same practical consequence of leaving the lower court decision intact. But Pidot finds a DIG preferable to affirmance for several reasons. Among other things, having justices cast affirmative votes on the merits risks biasing those justices in future cases, due to psychological dynamics such as confirmation bias, cognitive dissonance, and the “lock-in effect.” He also contends that an affirmance based on a tie vote can undermine the legitimacy of the Court—furthering the perception that the Court is political rather than impartial, raising ethical questions in future cases by indicating that justices have prejudged a particular issue, and encouraging gamesmanship by highlighting who the tie-breaking justice will be (the one who did not vote in the case that generated the 4-4 tie).

Pidot recognizes, however, that many of these concerns are not absolute. For example, judges do change their minds on certain issues. My favorite “exception that proves the rule” is Free v. Abbott Laboratories—a case that Pidot identifies as a tie vote where the issue left unresolved was addressed on the merits in a later Supreme Court decision. The Court had granted cert in Free to resolve whether supplemental jurisdiction is available for certain kinds of claims, but Justice O’Connor recused herself and a 4-4 tie ensued. When the Court revisited that issue in Exxon Mobil v. Allapattah, O’Connor was in the minority—even though the membership on the Court had not changed. So one of the justices in the Allapattah majority (Rehnquist, Scalia, Kennedy, Souter, or Thomas) must have changed his view after the vote in Free.

The current stand-off over filling Scalia’s seat on the Supreme Court means that tie votes at the Supreme Court present a more crucial challenge than ever. Pidot’s article is a must read for anyone who wishes to wade into this important topic.

Cite as: Adam N. Steinman, Fit to Be Tied, JOTWELL (May 18, 2016) (reviewing Justin Pidot, Tie Votes in the Supreme Court, Minn. L. Rev. (forthcoming 2016), available at SSRN),

Process Failure on the Road to Obergefell

Josh Blackman and Howard M. Wasserman, The Process of Marriage Equality, 43 Hastings Const. L.Q. 243 (2016), available at SSRN.

In The Process of Marriage Equality, Josh Blackman and Howard Wasserman provide a chronicle and critical assessment of the judicial decisions about procedure, jurisdiction, and remedies through which the federal courts moved from United States v. Windsor to Obergefell v. Hodges. It is an essential article for understanding how the process unfolded.

The picture painted by the authors is not a pretty one. Some of the procedural decisions come out looking somewhat shabby, and the judges who made them possibly partial. Blackman and Wasserman do not always say so squarely, but the best explanation for some of the procedural misadventures they chronicle is likely found in partial judicial strategery: Procedural monkeying made the underlying substantive right more likely to stick, which is what the judges wanted because they were partial to the plaintiffs (and similarly situated couples) seeking it.

This is a strong claim, and one that the authors stop short of making when assessing most of the procedural decisions. But at times they come close. Consider, for example, their bottom-line assessment of why Judge Crabb of the Western District of Wisconsin granted summary judgment for the plaintiffs but delayed issuing an injunction or a stay for a week: “The most plausible explanation for this bizarre turn of events is that it was a deliberate effort to allow marriages to proceed before the court of appeals put them on hold.” Or consider their characterization of the Fourth Circuit’s denial of a stay as “inexplicable” (p. 305), and the judges’ order as revealing “what can charitably be described as deliberate indifference” to the contrary orders of the Supreme Court and other circuits.” (P. 306)

The authors do not declare themselves on the substantive correctness of Windsor or Obergefell, and it might be that the two are not of the same mind on that point. But it would be difficult to dismiss their critical assessments of “the process of marriage equality” as the product of disgruntlement with the Supreme Court’s adoption of a constitutional right to same-sex marriage. After all, their descriptions of the core issue as one of “marriage equality” and of the state laws at issue as “bans” come straight from the plaintiffs’ playbook.

The authors’ criticisms appear to arise, instead, from a sense that much of the confusion and disorder surrounding a domain that should be marked by clarity and order was unnecessary. This can be seen in the way that they praise the decisions of some of the lower courts that they examine. They describe as “particularly measured,” for example, the path chosen by lower courts that held invalid “bans on same-sex marriage, but put their judgments on hold pending the review process.” (P. 291.) They quote Judge Heyburn of the Western District of Kentucky, who expressed empathy with plaintiffs’ desire for quick action but stayed his judgment nonetheless, because “[i]t is the entire process … which gives our judicial system and our judges such high credibility and acceptance.” (P. 292.) “It is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well.” (P. 292.) These are the words of the quoted judge, but they also express the thoughts of Blackman and Wasserman.

A primary difficulty with the process, they observe, is that the Supreme Court sent conflicting signals from its perch at the top of the federal judicial hierarchy. The Court initially ordered stays, presumably to maintain the status quo pending its resolution of the merits. But the Court then denied certiorari in the stayed cases, and subsequently declined to issue stays. The consequence was predictable. “[L]ower courts appeared conflicted about what to do with the penumbras emanating from the shadow docket—whether to decide cases by exercising their best judgment in light of existing precedent or to be guided by the Court’s non-precedential and unexplained signals.” (P. 285.)

Despite their evident disdain for result-oriented proceduralism, Blackman and Wasserman ultimately counsel lower courts against any “formalistic approach [that] disregards the Supreme Court’s role as traffic cop in major constitutional cases.” (P. 323.) Once the Supreme Court has taken an interest in high-stakes constitutional litigation, they argue, lower courts should put a hold on their injunctions and let the Supreme Court dictate the pace of constitutional change. (P. 324.)

There is a pragmatic streak that runs through the authors’ proceduralism. They carefully discuss, for instance, the formal legal differences between the binding authority of precedents and of injunctions. But they also acknowledge circumstances, such as when there has been a final appellate ruling, in which officials who are not formally bound by a ruling should nonetheless act as if they are. That is sometimes “the cheapest, simplest, and likely least controversial move.” (P. 272.)

Although the authors are critical of courts throughout, Blackman and Wasserman do not limit their criticisms to the courts. They devote one of the article’s three principal sections to an unsparing assessment of the unavailing attempts of state officials to use unpersuasive abstention theories to slow down federal court adjudication of states’ marriage laws.

Overall, however, the focus of The Process of Marriage Equality is on the courts, and the balance of the assessment is critical.

All of us now are still too close to the process of this particular constitutional change to have the perspective that comes with the distance of many years. But the chronicle that Blackman and Wasserman provide will remain valuable for future observers who possess such a perspective. Whether those observers view Obergefell more like Brown or more like Roe, the record of the process that led to Obergefell will remain. As one who largely agrees with Blackman and Wasserman’s critical assessments—if anything, I would be more critical—I suspect that this record is not likely to look any better with age.

Cite as: Kevin C. Walsh, Process Failure on the Road to Obergefell, JOTWELL (May 2, 2016) (reviewing Josh Blackman and Howard M. Wasserman, The Process of Marriage Equality, 43 Hastings Const. L.Q. 243 (2016), available at SSRN),

Rethinking Civil Settlement

J.J. Prescott and Kathryn E. Spier, A Comprehensive Theory of Civil Settlement, N.Y.U. L. Rev. (forthcoming 2016), available at SSRN.

How should we understand settlement in civil litigation? In A Comprehensive Theory of Civil Settlement, J.J. Prescott and Kathryn Spier rethink civil settlement and take a significant step forward in the scholarly conversation about this topic. Generally, settlement has been understood as an alternative to a judicial disposition in the case. In this view, settlement is a zero-sum event from a systemic standpoint. (Of course, the parties negotiating a settlement may split the differences between them and both receive gains, but I am speaking of the court’s perspective here.) Prescott and Spier provide a new way of thinking about settlement as a continuum rather than as an either/or event that ends the dispute. At one end of the continuum is litigation according to the default procedural and substantive rules. On the other end is the termination of the dispute with an agreement. In between are many smaller agreements that parties can, and do, reach in moving toward resolution of their dispute. In explaining the implications of this insight, this article ties together disparate scholarship in a neat way. They support their argument with evidence from a sample of cases in New York’s summary jury trial docket.

The first step in their analysis is to define a settlement. Prescott and Spier define settlement as any agreement between the parties that improves their position in the litigation by some combination of (1) reducing adjudication costs, (2) mitigating losses due to risk, or (3) maximizing ex ante returns. This agreement need not end the litigation. A high-low agreement, for example, sets a range for the outcome of the case because the parties agree that regardless of what the adjudicator decides, they will set a cap and a floor to the damages. Still, the case goes to trial. In the binary view, a high-low agreement does not count as a settlement, but it is an agreement between the parties that mitigates losses due to risk. Prescott and Spier categorize partial settlements (that is, settlements that are on the continuum between no agreement and resolution) into three types: award-modification agreements, issue-modification agreements, and procedure-modification agreements.

An example of award-modification agreements, taken from the authors’ prior work and likely the inspiration for this article, are high-low agreements. Such agreements can have several consequences for litigation. For example, they might affect the level of investment in the suit by narrowing the range of possible outcomes. They might also allow parties to continue with the litigation while controlling risk leading to a resolution that they prefer to a complete settlement of the dispute. For example, the authors cite to agreements where different allocations of fault by the jury will result in different damages awards that have already been agreed upon by the parties. Thus when the parties cannot agree on how to allocate fault but can agree on the amount of damages they can still reach an agreement. Especially interesting to me, the authors show how these agreements can be structured as continuums (“smooth award-modification agreements”) rather than tiers (“kinked” agreements). This is an analysis I haven’t seen before and one that is very intriguing because, as the authors note, such a structure can increase the flexibility of the parties in negotiation. A linear settlement continuum might even be possible to institute in small cases, although other factors (such as entrenched practices) may stand in the way. And one can imagine a “smooth” award-modification agreement being very useful in larger cases.

Some of the implications of this analysis are not worked through in the paper but are quite important and open avenues for future work. That is another great contribution of this piece – once the conception of settlement is opened up, there are many opportunities to generate new ideas and analysis. For example, trials are very rare in the American court system. If the reason for the decrease in trials is due to risk adverseness, the high low agreement can cabin this risk and increase reward for both parties. Can this lead to more trials? The answer is a qualified yes, as we shall see in a moment. Another potential implication of such partial settlements is along the lines of Marc Galanter’s famous thesis of how repeat play can distort the legal system. Award-modification agreements may give repeat players who can obtain a high-low from their opponent added incentives to go to trial in cases that will benefit them in the long term. By mitigating risk, high-low agreements can create incentives for plaintiffs to take low value cases to trial where they would not in a binary settlement world.   A low verdict, in turn, will improve defendant’s leverage in negotiating settlements in future cases, because cases are usually settled by reference to other settlements or to trial outcomes. Whether such distortion in fact occurs could be a subject of future inquiry.

The second category of partial settlements that Prescott and Spier address is issue-modification agreements. They analytically separate different types of issues that might be more or less amenable to partial settlements, such as legal issues that are divisible (they offer the example of comparative fault) as opposed to legal issues that are not (for example, state of mind). They rightly point out that there may be some issues with respect to which the party may take unilateral action – by not disputing the issue at trial, for example. While such a unilateral decision cannot be considered a settlement, the defendant and plaintiff may each agree to one “free” issue – an issue that each concedes to the other. Jury instructions, they argue, are also an important moment for such issue-modification agreements to take place, yet as they point out much of the cost of litigation has already been incurred at that point. This opens the possibility for parties to consider entering into such agreements early on. Considering the implications of such developments is a further line of inquiry that is suggested by this piece. Should the substantive law change to accommodate partial issue settlements? Should the procedural law be structured to make such settlements easier to reach? We already permit bifurcation and trifurcation of trials; perhaps there are other mechanisms that could be considered.

The third type of partial settlements are procedure-modification agreements. This type of agreement is often discussed in the procedural literature under the term “contract procedure” but the authors helpfully fold it in to the discussion of settlements as well. Such agreements might include waiving the jury right, altering the timing of litigation, evidence rules, secrecy, bellwether trials, and appeals. In some ways, a significant amount of real-life litigation process is negotiated, so perhaps calling agreements for extension of time and discovery schedules “settlements” goes too far and erodes the category of settlement so much that it becomes incoherent. Still, there are ways in which altering the procedure can look like a settlement, especially when it relates to appeals or extrapolation from bellwether trials. And of course these different strands may be combined. In the GM bellwether trials now ongoing in the Southern District of New York, the first bellwether trial included a secret high-low agreement. How would such an agreement affect party investment in the case and what would this mean for the extrapolated cases? The insights from this article can help answer such questions.

The authors also discuss the interesting implications of attorneys’ fees, which can be categorized as both award and procedure modifications. These have been addressed in the law and economics literature but this paper connects them to the broader question of settlement. An agreement to apply the British rule, for example, can increase risk, causing parties to invest more in the litigation. The authors demonstrate how “doubling down” in this way can increase welfare for both parties in some cases. The authors do not mention Rule 68, but that rule provides the opposite scenario: a switch from a default one-way fee shift (a modified British rule) to the American rule. An initial offer of settlement on the lower end can limit the defendant’s exposure in terms of attorneys’ fees, altering the incentive to invest in the litigation. Here, too, future work is opened up. For example, what would be the effect of a “smooth” curve in shifting attorneys’ fees, along the lines that the authors suggest in award modifications? (That is, instead of shifting fees entirely parties might agree on incremental shifts). This might be a useful way of thinking about fees in large cases such as class actions or MDLs. The next step, indeed, is to consider the ideas presented in this article for multi-party and complex litigation where more strategic behavior is likely to occur.

At the end of the article, Prescott and Spier analyze a set of data from the New York court system’s summary jury trial program to demonstrate the use of partial settlements. As they explain, the sample of cases that enters into that program is skewed. The data are still very interesting, however, and the authors hint that they may do more with it. For now, they have found two things. First, they find that settling key issues such liability is positively associated with award modification agreements and that settling damages only is negatively associated with high-low agreements (as the low is set effectively at zero with a finding of no liability). Second, they find that parties who have partially settled their cases are more likely to continue through trial rather than fully settle their cases. Overall, the New York data show that cases with high-low agreements settle about 20% of the time. Accordingly, some types of systems that encourage partial settlement may also encourage trials, with the caveat that choosing the summary jury trial process is probably a choice in favor of trial anyway. It would be interesting to test this finding on different types of cases, especially higher stakes cases. In any event, this finding provides food for thought for those civil procedure scholars who favor trials.

A Comprehensive Theory of Civil Settlement broadens our conception of what a settlement is, leading to a number of implications and further areas of study. The authors of this article are both economists, and there were some things that I would have suggested they change because of the way I know procedure to work. For example, some procedural rules, such as those on amending pleadings, are so forgiving that parties are unlikely to settle around them. Such changes would not alter the analysis overall, but my reaction reminded me how much potential there is for economists and procedural scholars to collaborate or provide input on work that approaches similar sets of questions from different angles.

Cite as: Alexandra D. Lahav, Rethinking Civil Settlement, JOTWELL (April 14, 2016) (reviewing J.J. Prescott and Kathryn E. Spier, A Comprehensive Theory of Civil Settlement, N.Y.U. L. Rev. (forthcoming 2016), available at SSRN),

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),

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),

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)),

Bringing Court Reasoning to the Surface

Elizabeth Y. McCuskey, Submerged Precedent, 16 NEV. L. J. __ (forthcoming 2016), available at SSRN.

In the modern age, there is no shortage of information. The internet and the tools it has inspired lead many—myself included—to feel overwhelmed by the sheer volume of what is out there. As a consequence, I came to Elizabeth McCuskey’s Submerged Precedent with some degree of skepticism. McCuskey, after all, argues that even more information—in the form of “submerged” district court opinions—should be made readily available. After reading this carefully researched and artfully written article, however, I am a believer. And I think you will be too.

First, what is “submerged precedent?” Although district courts do not create vertically or horizontally precedential opinions in the strictest sense, McCuskey argues that district court opinions contribute to how decisional law develops. She adopts a broad view of precedent—reaching any court opinion that provides reasoned arguments—which results in a large body of persuasive law. As McCuskey argues, however, the law can only be persuasive to the extent it is available to the parties, and consequently, to courts. This is where submersion comes into play. The question is which district court opinions are available and where. District court judges designate opinions that they deem to be particularly important as “published.” Those opinions then appear on Westlaw (or other legal databases such as Lexis, but for ease, I will refer to only Westlaw). Unpublished district court opinions may also appear on Westlaw, but only if the authoring judge designates them as “written opinions.” What remains “submerged” are reasoned decisions that do not carry these designations. Instead, they can only be found on databases such as PACER, which has limited search functionality and charges a fee for everything other than “written opinions,” or Bloomberg, which while more searchable, is quite expensive. These opinions constitute the submerged precedent about which McCuskey is concerned.

Second, do we really care about “submerged precedent”? McCuskey argues that we should be concerned. Her argument develops in two parts—one is data-driven and the other is theoretical.

The data argument relies on a dataset McCuskey collected that looks at federal question opinions under Grable & Sons Metal Prod. v. Darue Eng’g & Mfg. The results span a seven-year period of cases in two federal districts. McCuskey compared the rates of remand to state court in “published and unpublished opinions” found on Westlaw with the remand rates in opinions deemed submerged precedent. Of all of the remand decision, about 56% were reasoned decisions. Of those reasoned decisions, 39% were on Westlaw and 17% were submerged. Looking only at the reasoned decisions and comparing Westlaw decisions to submerged ones, McCuskey found notable differences. For example, in ERISA cases, where close to 32% of the reasoned decisions were submerged, the overall remand rate (combining Westlaw and submerged) was 64%, but the Westlaw remand rate was 47% while the submerged remand rate was 100%. In almost every category of cases, the Westlaw remand rate was lower than both the overall and submerged remand rates. In other words, the results in cases that are readily available are skewed.

McCuskey acknowledges a number of limitations to her findings—the small dataset, the limitations created by the substantive law, and the fact that outcome differences really do not matter unless the opinions’ reasoning is also meaningfully different. This latter limitation prevents McCuskey from drawing a strong conclusion from her dataset; her review of the opinions’ reasoning leaves her at something of a draw. Calling for more research of this kind, but perhaps with a different legal question at a different procedural time, McCuskey concludes that her dataset is illuminating, but not conclusive as to whether we should care about submerged precedent.

This leads McCuskey to her theoretical arguments, grounded in concerns for fairness, efficiency, and legitimacy. For litigants to feel fairly treated, McCuskey argues, they must have access to all of the opinions so that those litigants, and the public itself, can see whether courts are consistent. In the interest of efficiency, it is important for judges to have access to the full spectrum of opinions, providing additional templates for handling similar issues as they arise. The availability of more opinions means that the system is transparent and thus legitimate. Moreover, litigants have a stronger sense of having had their day in court when the opinions are widely available. In addition to these systemic values, the opinions have intrinsic value. District courts, for example, are often the only courts to regularly handle weighty issues like discovery disputes. Because those kinds of issues are often shielded from appellate review, the availability of a larger segment of those opinions is meaningful. Finally, district court judges can wield a great deal of power in how the law develops. McCuskey cites District Judge Jack Weinstein of the Eastern District of New York as one who has had a strong impact on complex litigation. Access to more reasoned opinions from district court judges would give them an even greater impact on how the law evolves.

Having established that submerged precedent is important, McCuskey wrestles with how and to what degree to increase the availability of opinions. As a purist, she argues that all of it should be made available because it is the morally right thing to do and also because the E-Government Act of 2002 requires all “written opinions” to be available for free on PACER. Yet she acknowledges that there are drawbacks to this much access. For example, if judges knew that all of their opinions would be available, they might be less inclined to write reasoned opinions, depriving litigants of the satisfaction of seeing their cases thoroughly handled. In addition, the quantity of information might simply be overwhelming. This leads McCuskey to argue in favor of a “some submergence” solution, in which some opinions remain submerged but more opinions overall see the light of day. She then contends with how to create a system that brings the right opinions to the fore. She offers a number of solutions. These include a rule of professional responsibility that requires attorneys to conduct some level of court-docket research; a “publication panel” to decide what to designate as “written opinions,” removing the publication decision from the authoring judge; or a rule requiring judges to include reasoning in their opinions, much as Rule 11 mandates and Rule 56 suggests.

Whatever the method, now that McCuskey has brought submerged precedent to the surface, we cannot ignore its presence. As always, finding the optimal solution is a challenge. But her article takes us a long way toward reaching one.

Cite as: Brooke D. Coleman, Bringing Court Reasoning to the Surface, JOTWELL (February 4, 2016) (reviewing Elizabeth Y. McCuskey, Submerged Precedent, 16 NEV. L. J. __ (forthcoming 2016), available at SSRN),