Discovery and Democracy

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

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

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

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

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

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

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

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

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

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

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

Cite as: Elizabeth Thornburg, Discovery and Democracy, JOTWELL (June 23, 2014) (reviewing Gillian K. Hadfield & Dan Ryan, Democracy, Courts and the Information Order, 54 European J. of Sociology 67 (2013), available at SSRN),

Trans-Substantivity Beyond Procedure

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

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

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

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

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

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

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

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

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

Cite as: Suzette M. Malveaux, Trans-Substantivity Beyond Procedure, JOTWELL (May 21, 2014) (reviewing David Marcus, Trans-Substantivity and the Processes of American Law, 2013 B.Y.U. L. Rev. 1191),

Federalism and Mass Tort Litigation

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

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

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

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

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

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

Cite as: Robin Effron, Federalism and Mass Tort Litigation, JOTWELL (April 22, 2014) (reviewing J. Maria Glover, Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-Removable State Actions in Multi-District Litigation, J. Tort Law (forthcoming 2014)),

Distinguished Precedents

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

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

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

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

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

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

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

Cite as: Corey Rayburn Yung, Distinguished Precedents, JOTWELL (April 4, 2014) (reviewing Adam N. Steinman, To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis, 99 Va. L. Rev. 1737 (2013)),

Recognizing the Value of Failure in Civil Litigation

Alexander A. Reinert, Screening Out Innovation: The Merits of Meritless Litigation, 89 Ind. L. J. __ (forthcoming 2014) available at SSRN.

Throughout life, we are told that we should learn from our mistakes.  Alex Reinert, in Screening Out Innovation:  The Merits of Meritless Litigation, forces us to consider why civil litigation shouldn’t have to do the same.  Reinert elegantly defines meritless–as distinct from frivolous–litigation, argues why the civil justice system should value it, and argues that Congress, the Court, and federal rulemakers should change the way they think about substantive and procedural change.

In civil litigation, the question of how to manage the tension between efficiency and justice has been resolved by resort to an argument that frivolous claims should be screened out, and screened out early.  That proposition appears uncontroversial on its face.  Yet, changes like the Twiqbal pleading standard and the Private Securities Litigation Reform Act (PSLRA) are criticized for taking this proposition too far.  The argument is that these efforts to achieve efficiency screen out meritorious cases along with the frivolous.  Those in favor of these changes respond by arguing that it is worth sacrificing a few meritorious cases because the overall system benefits when frivolous cases are eliminated.  Proponents argue this leaves more room for meritorious cases to receive careful attention.  What gets left out of this debate, at least explicitly, is the role of meritless cases in the system and how those meritless cases should be valued when considering substantive and procedural reform.

Reinert takes this question on.  First, he unpacks the difference between a frivolous claim and a meritless one. Frivolous cases are those in which a judge can determine that “the plaintiff has no arguable basis to believe that she may establish the defendant’s liability on the basis of any of the legal theories she alleges.”  In contrast, meritless cases are those in which the judge “determines, after adversarial briefing or discovery, that a plaintiff’s theory of relief is insufficient or that a reasonable jury could not find facts that would allow a plaintiff to recover.”  In other words, frivolous cases are generally losers from the outset.  Meritless cases might be losers, but the only way to determine that status is to engage in some amount of adversarial practice.

Once Reinert defines these terms, he surveys a number of instances where the Court and Congress have adopted procedural and substantive restrictions in the name of screening out frivolous cases.  These changes are made without appreciating that frivolous and meritless cases are distinct.  For example, the inquiry for qualified immunity changed from a subjective to an objective reasonableness standard, asking whether the claim shows a violation of “clearly established” law.  The justification for this change was that the old standard was ineffective in filtering out both frivolous and meritless claims against government officials.  Reinert argues that these changes are flawed because frivolous and meritless cases are, in fact, not equal.

Meritless claims, Reinert argues, are actually good for the system.  For example, when a plaintiff loses a case, future plaintiffs and the system itself learn something from that loss.  Whether it is how to differentiate between existing precedents or the simple fact that a particular legal claim is a loser, the loss teaches us something.  Another benefit of meritless litigation is that a loss will lead to a positive change in the law. Lilly Ledbetter’s case is an example.  She lost her lawsuit, but Congress remedied that loss for future litigants by softening the statute of limitations for bringing discrimination claims on the basis of pay disparities.  If her meritless claim hadn’t been adjudicated, Congress would not have acted.  In addition, even if meritless cases do not lead to formal legal change, those cases might have broader social consequences as the public weighs in.  For example, lawsuits challenging the Obama Administration’s surveillance activities have helped shape the public debate and have even led the Administration to affirmatively change its policies and practices without court order.  Meritless cases also provide litigants with a sense that they have been heard, even if they lose.  Finally, those cases signal to potential litigants what their chances might be, guiding their decision to file a claim, arbitrate, or settle.  Reinert’s ultimate point is that even when these meritless cases fail, they teach us something, and that something improves the system.

Yet, because Congress and the Court conflate meritless and frivolous claims, both are screened out of the system as if they are the same.  As Reinert argues, substantive and procedural restrictions have increased, which means these claims are screened out even earlier in the litigation process.  Losing meritless claims so early means that their value is not realized at all.  For example, lawyers might resist taking cases unless they are certain the case can clear the “clearly established” hurdle for qualified immunity.  The result is that cases that might have defined the outer bounds of clearly established constitutional violations will not be pursued.  And even if they are, because courts can skip the clearly established step in their analysis, the law regarding what qualifies as a violation is paralyzed.  Reinert’s point is that substantive and procedural reforms, like the standard and timing of qualified immunity, should be made with an appreciation of what meritless litigation contributes to the civil justice system.  If meritless litigation were considered, the argument goes, different and better changes might be made.

Reinert’s article provides numerous examples of how meritless and frivolous claims are systemically different.  While not exhaustive, his discussion is broad, stretching across all manner of procedural and substantive provisions.  My only minor qualm with the article is that Reinert does not explicitly address federal civil rulemaking.  That is an area rife with discussions that, unfortunately, conflate meritlessness and frivolousness and undervalue meritless claims.  The latest round of proposed amendments to the federal discovery rules are a ready example how an under-appreciation of meritless claims can result in imperfect procedural change.  These amendments will make it more difficult for parties to request discovery necessary to develop their claims by requiring, among other things, a demonstration of proportionality.  However, Reinert’s larger and important point does not suffer at all for not discussing federal rulemaking; it is only another example of why his argument makes sense.

Reinert deftly demonstrates how meritless cases should influence substantive and procedural reform.  In a debate that is dominated by concerns about efficiency, he reminds us that the “justice” side of the equation is often understated and underdeveloped.  His work is a critical contribution.  Indeed, his article is such a success because he so convincingly argues that there is great value in failure.

Cite as: Brooke D. Coleman, Recognizing the Value of Failure in Civil Litigation, JOTWELL (March 19, 2014) (reviewing Alexander A. Reinert, Screening Out Innovation: The Merits of Meritless Litigation, 89 Ind. L. J. __ (forthcoming 2014) available at SSRN),


•  Neil H. Andrews, Money and Other Fundamentals: English Perspectives on Court Proceedings, Meditation, and Arbitration, U Cam. Faculty of Law Research Paper No. 38/2013 (2013) available at SSRN.
•  Stuart Sime, A Practical Approach to Civil Procedure (16th ed. 2013).
•  Stuart Sime & Derek French, Blackstone’s Guide To The Civil Justice Reforms 2013 (2013).

The banes of every civil-justice system are delay and expense.  The two maladies are often run together in a single phrase as if they were one disease, but they are distinct problems whose antidotes sometimes work at cross-purposes.  One solution to delay, for instance, is to impose early, firm deadlines during litigation, but that can simply induce parties to “lawyer up” and spend more money in the rush to meet truncated deadlines.  Conversely, keeping the cost of litigation down may induce more people to sue, which will drive up the length of time to resolution.

In England, where I taught this past Fall, the delay-and-cost two-step has played out over fifteen years and two sets of procedural reforms.  The first, and better known, effort occurred in 1998, when the Wolff reforms (named after Lord Chief Justice Woolf, principal author of the report Access to Justice) led to the creation of the Civil Procedure Rules.  The principal innovation of the Woolf reforms was case management, an idea that had been growing in popularity on the American side of the Atlantic since the 1970s.  But it also included a number of other innovations—such as pre-action protocols in which parties in some cases exchanged information before suit, greater resort to ADR, and a rule (“Part 36”) that operates akin to but more broadly than Federal Rule of Civil Procedure 68—that were designed to both reduce delay and lower the cost of litigation.

After a decade’s worth of experience with this new judicial approach, the general view was that the Woolf reforms did a better job reducing delay than lowering cost.  Hence, in his massive Review of Civil Litigation Costs, Lord Justice Jackson proposed another series of reforms targeted specifically at the management of litigation costs.  These reforms, often called the Jackson reforms (or simply “Jackson”), came into effect in April 2013.  These three works attempt, with increasing levels of detail, to examine the Jackson regime.  Professor Andrews’ overview locates the reforms within the context of other movements in British procedure (such as mediation and arbitration).  Professor Sime’s well-known hornbook on civil procedure contains new chapters describing the effect of Jackson, and his book with Mr. French focuses exclusively on these reforms.

Each of the authors is a leading scholar of the British legal system.  The value of these works lies not in their novel analysis, but in their clear and cogent descriptions of a set of reforms that should spark the American imagination.  Although it is not possible to provide a full rendition of Jackson in the short space I have here, some of the highlights are worth mentioning.1

Costs Budgeting.  Early on in certain cases (in particular, in many multi-track cases, which involve stakes of more than £25,000), each side must prepare a costs budget detailing the expenses that they expect to incur in the litigation.  The budget, which is to be prepared on a pre-formatted spreadsheet, is shared with the client, the court, and the opponent, and limits are imposed on the amounts that barristers can charge for certain services (including preparation of the cost-budgeting worksheet).  In one sense, lawyers are not bound by the budget; they can work more hours or charge their clients more than the budget provides.  But the budget provides the presumptive amount of costs that can be awarded to the client in the event that the client wins—recalling that the United Kingdom follows the English (or “loser-pays”) rule.  If parties do not agree to each other’s costs budgets, the court can enter an order on the appropriate costs.  Moreover, the court can reduce the parties’ budgets when they seem disproportionate to the amount at stake.  For instance, if a case has a value of £100,000, the budgets for each side may be £60,000 (or £120,000 in total).  It would not be socially beneficial for this case to go forward on this basis, but both parties might feel justified in expending this amount because of the belief that they will recover their costs when they win.  Indeed, a party with a strong claim or defense may even have an incentive to spend more than £100,000 (a result that would not occur under the American rule, under which each party bears its own costs).  The court now has authority to require the parties to trim their costs budgets to ensure that the global amount expended is proportionate to the stakes of the litigation.  Parties may spend more, but doing so will likely be on their own dime—even if they win on the merits.  The budgeting rules can be found in Part 3 of the Civil Procedure Rules (Rules 3.12–.17).

The bench seems determined to enforce this new power.  In a decision that is presently sending seismic waves through the bar, the Court of Appeals held that the plaintiff would be entitled to no costs when his solicitors were late in submitting a costs budget.2  The untimely budget had called for an expenditure of more than £506,000—meaning that, should the plaintiff prevail, his solicitors may be looking at a £506,000 professional-malpractice claim.

Qualified One-Way Fee Shifting.  Somewhat reluctantly, Britain has begun to permit contingency-fee agreements.  One form of contingency fee (the “damages-based agreement”) is familiar to Americans, although the caps on fees for a successful recovery (for instance, 25% for a tort claim) are often lower.  Another form (the “conditional-fee agreement”) is uniquely British: the barrister charges the traditional hourly rate (payable only in the event of recovery), but is then entitled to a “success fee” to compensate for the risk of losing the case.  One of the Jackson reforms is to limit fee shifting by defendants in personal-injury cases, in which contingency-fee agreements are most common.  Thus, contrary to the usual English rule, a successful defendant cannot generally receive its costs from a losing plaintiff.  Qualified one-way fee shifting still makes a plaintiff liable for her own lawyer’s costs, although here the rise of the contingency fee limits that prospect.  These provisions appear in Rules 44.14–.16.

Proportionality.  Already ensconced in the Civil Procedure Rules, the notion that costs must be proportionate to the nature of the case—enforceable through the principle that only proportionate costs are recoverable—was reinforced throughout.  For instance, the revision to Rule 1.1(1) (the equivalent of Federal Rule 1) inserted four new words at the end: “These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.”  Proportionality also received greater emphasis in the drafting of a revised Part 44 (especially Rules 44.2–.12), which deals with the court’s general power to award costs.  With the exception of qualified one-way fee shifting, the usual loser-pay rule prevails: the losing party must pay the fees of the prevailing party for the costs that the other party has budgeted.  This “standard-basis” fee shifting is, however, limited by the “indemnity principle,” which holds that a party should not be responsible for more in costs than the other party would have been required to pay her own lawyer.  For example, if a plaintiff has entered into a damages-based agreement to receive a 25% contingency fee, the defendant is liable only for fees in that amount.

The attribution is unclear (it was either George Bernard Shaw or Oscar Wilde, or perhaps it was Winston Churchill), but it has been said that England and the United States are two countries separated by a common language.  The same may be said of law: We are two countries divided by our common legal heritage.  Backed by significant empirical data, the Jackson reforms are a thoroughly thought-out package of changes designed to bring down the cost of British litigation.  It is therefore tempting to borrow pieces of the reforms—costs budgets seems an especially attractive notion—and consider their adoption in the U.S.

But that impulse presents problems of translation.  Many of the Jackson reforms, and the powers that British judges have to control costs, are keyed to the reality that the United Kingdom, like much of the world, employs a loser-pays approach to fees.  This approach can create some perverse incentives: parties with strong cases and financially solvent opponents have little reason to control their own spending on litigation.  In a legal culture in which fees to the winning party are the norm, the power to withhold those fees might be a significant inducement to the parties to control costs.  But withholding those costs (in other words, making each side bear its own costs of litigation) merely makes the British system run more along the lines of the American rule—a tendency reinforced by qualified one-way fee shifting.  Moving in this direction may lead the parties in a U.K. lawsuit to make more rational litigation decisions in some respects.  For instance, if costs budgeting works as expected, rational actors have less capacity to expend £120,000 on a £100,000 claim.  But costs budgeting does not prevent all socially undesirable litigation behavior.  For instance, if a court approves budgets of £40,000 per side for this £100,000 claim, a plaintiff with a very strong claim might nonetheless make an economically rational decision to expend £120,000 on litigation expenses: she will receive £140,000 in total (£100,000 on the judgment and £40,000 in costs recovery) but spend only £120,000, leaving her £20,000 to the good.

The American rule does a better job ensuring that parties do not spend more on a case than the benefits that they expect to recover.  But, like the traditional English rule, it does not always ensure that the costs of both parties are proportionate to the needs of the case; for instance, under the American rule, both parties might have an incentive to expend a socially wasteful $60,000 on a $100,000 claim.  The promise of Jackson—if parties truly limit their spending to their costs budgets and if judges become good at assessing expected recoveries—is to push forward only those cases that are economically viable (considering the costs on all sides).  But the carrots and sticks that Jackson uses to realize this goal work best within the confines of the fee and cost structure of the English system.  As significant a reform as it appears to be in English practice, Jackson provides few immediately transferable ideas for controlling costs in the American civil-justice system.

  1. I am enormously grateful to Geoffrey Bennett, Susan Blake, and Stuart Sime for conversations that have helped to shape this discussion.  Any errors in translating English procedure for an American audience are mine. []
  2. See Mitchell v News Group Newspapers Ltd., [2013] EWCA Civ. 1537, 2013 WL 6148230 (Nov. 27, 2013). []
Cite as: Jay Tidmarsh, Jackson, JOTWELL (February 17, 2014) (reviewing •  Neil H. Andrews, Money and Other Fundamentals: English Perspectives on Court Proceedings, Meditation, and Arbitration, U Cam. Faculty of Law Research Paper No. 38/2013 (2013) available at SSRN.•  Stuart Sime, A Practical Approach to Civil Procedure (16th ed. 2013).•  Stuart Sime & Derek French, Blackstone’s Guide To The Civil Justice Reforms 2013 (2013).),

The Erie-ness of the Rules

In Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the Supreme Court famously ruled that a federal court cannot displace state common law with its own common law. Justice Brandeis’s majority opinion suggested that the Constitution compelled this result, and ever since, the decision has been called everything from a “brooding omnipresence” to an “irrepressible myth.” If Erie means anything (and, trust me, there is a lot of disagreement about whether it means anything at all), it makes clear that the federal government’s powers are limited vis-à-vis the states, and these limitations extend to the judiciary’s power to make law through precedent. To borrow Justice Brandeis’s words, “there is no federal general common law.” But translating this idea into doctrine has been a difficult task.

Applying Erie becomes even more complicated once you throw in the Federal Rules of Civil Procedure (which, ironically, became effective the same year as Erie). The Rules are like a legal mythical beast. The Rules are not statutes, even though they are exercises of Congress’s power to regulate the practices and procedures of Article III inferior courts. With rare exceptions, Congress does not exercise this power directly, but rather has delegated it to the Supreme Court through the Rules Enabling Act. The Court, in turn, has delegated the primary drafting of the Rules to an ad hoc advisory committee. Finally, under the Rules Enabling Act, the Rules cannot “abridge, enlarge or modify a substantive right,” which reflects a concern by Congress that the Court will abuse this delegated power to make “substantive” law without the authorization of Congress. Consequently, the Rules introduce a separation of powers dimension on top of the federalism concerns of Erie.

Enter Margaret Thomas’s masterful article, Constraining the Federal Rules of Civil Procedure Through the Federalism Canons of Statutory Interpretation. Thomas focuses on the limitation that the Rules must not “abridge, enlarge, or modify a substantive right,” which has been difficult to apply in practice. This is especially true in cases brought under a federal court’s diversity jurisdiction, where a federal court is required under the Rules of Decision Act (and, according to Erie, the Constitution) to apply state law when there is no federal law on point. On the one hand, if a Federal Rule differs from the procedure that would apply in state court, then a federal court should apply the Rule because it is arguably a federal “law” on point. On the other hand, applying the Rule instead of the state procedure most likely would have an effect on the outcome (why else would the parties care?), and thus would arguably “modify” the substantive rights at issue in the case.

So is a Rule always valid or never valid? The Court has historically chosen the former. Recently, in Shady Grove, the plurality (and arguably the dissent) concluded that a Rule is valid if it “really regulates procedure,” ignoring the “abridge, enlarge, or modify” limitation altogether.

For Thomas, this will not do. Like many scholars, Thomas argues that ignoring the “abridge, enlarge, or modify” limitation allows the Rules to preempt state procedures that are designed to protect or limit substantive rights. As she puts it, ignoring the limitation “risks undermining important areas of state policymaking that Congress never intended to control through federal law.” (P. 192 & n.11). But Thomas does not argue that “the Federal Rules should never apply in diversity cases.” (P. 25).

Instead, she proposes a simple and very elegant solution to figuring out when a Rule would “abridge, enlarge or modify a substantive right.” Thomas looks to the canons of construction used by the federal courts to determine whether a federal statute preempts state law. These canons include (1) the presumption against the preemption of state law and (2) the “clear manifestation of intent” rule, which only permits preemption of states exercising their “historic police powers” when it is unambiguously shown that a federal statute is meant to preempt state law. As Thomas points out, these canons protect federalism because they interpret congressional silence as creating space for states to exercise their police powers. Moreover, by ensuring that Congress, rather than the courts, exercises legislative powers, the canons protect federalism because, unlike the courts, Congress “provides for the representation of state interests in the legislative process.” (P. 237). Thus, Thomas cleverly reads into the “abridge, enlarge or modify” limitation of the Rules Enabling Act an implicit concern with federalism to go along with the Act’s concern with separation of powers.

This is all somewhat abstract, but Thomas’s insight reduces the “abridge, enlarge or modify” limitation to a simple standard. The key inquiry for Thomas is whether “the law is in an area where Congress has declined to exercise federal power and the state law at issue is part of the manner in which the state governs the area.” (P. 251).

A simple example shows how Thomas’s proposal can provide much needed guidance. Suppose, as in Shady Grove, a state has a blanket prohibition against class actions where the damages are defined by statute. Should the prohibition apply in a diversity case, or should Rule 23, which governs federal class actions, apply? This issue divided the Court, but Thomas points out that the federalism canons provide a much easier way to address the issue. In Thomas’s view, whether the state prohibition applies depends on what the claims are meant to address. In Shady Grove, the statutory damages were meant to ensure that insurance companies make timely payment of their proceeds. Because insurance regulation is a traditional state concern, the state prohibition should apply. As Thomas puts it in discussing Shady Grove, “[l]imiting the magnitude of statutory late-payment penalties reflects a decision about New York’s regulation of its own insurance industry.” (P. 258). Here Thomas’s standard provides a compelling answer to the question of whether the “abridge, enlarge or modify” limitation has been breached. Moreover, it does so without sifting through state legislative history or giving significance to whether the prohibition was part of the state’s procedural code or part of its “substantive” statutes.

I have proposed an approach to Erie that differs somewhat from Thomas’s proposal, although I am not sure the differences matter. More importantly, Thomas’s proposal has the advantage of using canons of construction that have been used “since the time of the Framing . . . to identify the internal power of states to regulate matters within their own borders to promote the general welfare.” (P. 255).  Thus, like another article that I liked (lots), Thomas’s article goes beyond criticizing or defending a doctrine to address how to make the doctrine work. For that reason Thomas’s excellent article is a major contribution to the already extensive scholarship on Erie.

Cite as: Sergio J. Campos, The Erie-ness of the Rules, JOTWELL (February 4, 2014) (reviewing Margaret S. Thomas, Constraining the Federal Rules of Civil Procedure Through the Federalism Canons of Statutory Interpretation, 16 N.Y.U. J. Leg. & Pub. Pol’y 187 (2013)),

Front-End Duties to the Class

Nick Landsman-Roos, Front-End Fiduciaries: Precertification Duties and Class Conflict, 65 Stan. L. Rev. 817 (2013).

As some may remember, Dallas attorney Fred Baron created an uproar in the legal community in 1993 when he mounted a full-bore attack against the infamous Georgine nationwide asbestos settlement class. In 1997, Laurence Tribe — arguing an array of substantive and procedural objections — ultimately convinced the Supreme Court in Amchem v. Windsor to disapprove that settlement.  Fred Baron, then, largely was responsible for helping to establish that settlement classes are legitimate, but that they must include structural assurances of due process fairness to absent class members.

Less well-known and long-forgotten in Amchem’s wake, Baron also lobbed an array of ethical objections at the settling parties, although the Supreme Court ultimately deflected these challenges. The Georgine settling parties had simultaneously presented the federal district court with a class complaint and a settlement. Baron raised the question of the duties that plaintiffs’ attorneys owed to class members in the absence of a formal class certification at the outset of the litigation. On this, he held two somewhat discordant views. On one hand, he opined that absent a formal class certification at the front-end of class litigation, no class was created and therefore the plaintiffs’ attorneys could not negotiate a settlement on behalf of the class. There was no attorney-client relationship until the class came into existence. Thus, he argued, the entire Georgine settlement was illegitimate and the class could not be bound by a back-end class certification. On the other hand, he argued that an attorney-client relationship existed throughout and class counsel owed fiduciary duties to the class members, even without a filed class complaint. In this regard, class counsel had violated their fiduciary duties to the Georgine class.

It is somewhat surprising that nearly  twenty years after Fred Baron first called attention to the issue in Georgine, the problem of attorney fiduciary duties during pre-certification class proceedings remains largely unresolved. This problem is extremely important given the prevalence of settlement classes in our post-Amchem era. In an excellent piece in the Stanford Law Review, Nick Landsman-Roos has stepped into this doctrinal breach. Front-End Fiduciaries: Precertification Duties and Conflict traverses the landscape of pre-certification professional responsibilities as they intersect with class action jurisprudence.

Landsman-Roos first explicates the problem of class counsel’s pre-certification duties, noting that courts have largely ignored this issue because judges evaluate the adequacy of class counsel at the back end, during the settlement fairness hearing. Such back-end evaluations typically are ex post facto, focusing on what the attorneys already have done, and not on what they may do. In addition, back-end inquiries focus on the requirements of Rule 23 adequacy, rather than on broader ethical obligations. Thus, Landsman-Roos suggests that the problem of pre-certification duties has been given short-shrift because no Federal Rules framework exists for addressing pre-certification attorney conduct. Moreover, pre-certification duties have special salience for addressing conflicts of interest at the outset of class litigation, rather than at the back end of a settlement.

Courts have been confounded, Landsman-Roos notes, by questions relating to the scope of fiduciary duties, professional ethics, and conflicts at the outset of litigation.  Consequently, courts have applied varying standards for dealing with such disputes. But the problem of pre-certification conflicts and fiduciary obligations remains largely undertheorized, and Landsman-Roos’s project is to identify a framework to resolve loyalty problems at the front end of class action litigation.

Landsman-Roos focuses initially on the crucial question of how to define the client in class litigation. Surveying the academic debate, he discusses whether class counsel and absent class members have (or do not have) a constructive attorney-client relationship for the purpose of professional ethics rules. During pre-certification proceedings, he argues, the view that a court adopts is crucial for understanding how class litigation will be regulated. Thus, if a court takes a narrow view of the attorney-client relationship, it “strips professional ethics rules of much force and limits the fiduciary obligations of class counsel to absent class members at the beginning of litigation.” A more robust conception, by contrast, “creates a fiduciary relationship and implies ethical requirements between an attorney and all class members and reduces the discretion class counsel.” Landsman-Roos stakes his position, “contrary to conventional wisdom,” that a fiduciary duty among counsel, the named class plaintiff, and each individual class member ought to attach when a class action complaint is filed. Thus, a precertification duty attaches and is owed not just to the named plaintiffs or the class as an entity, but to each potential unnamed class member.

Finally, Landsman-Roos addresses the scope of precertification duties. An attorney breaches fiduciary duties to class members when she makes a decision that prejudices the substantive legal rights of absent class members without notice and an opportunity for objections. When an attorney’s action potentially or actually prejudices an absent class member’s rights, the attorney should have a good faith defense: If the conduct was undertaken in a good faith belief that it would maximize the class’s recovery, she should not be found to have breached her precertification duties.

Landsman-Roos’s piece is well worth reading.  It addresses an important question of class action doctrine that courts and commentators have largely — and surprisingly — ignored for more than twenty years. He is thoughtful in his analysis of pre-certification duties, innovative in his quest for an analytical framework, and provocative in his conclusions and recommendations.

Cite as: Linda Mullenix, Front-End Duties to the Class, JOTWELL (January 17, 2014) (reviewing Nick Landsman-Roos, Front-End Fiduciaries: Precertification Duties and Class Conflict, 65 Stan. L. Rev. 817 (2013)),

Posner on Realist Judging

Richard A. Posner, Reflections on Judging (Harvard University Press, 2013).

Reflections on Judging, by Judge Richard A. Posner, is the latest contribution to the familiar genre of extrajudicial writings by judges on the judicial process. But the book stands apart from most other works in the genre by the way that Posner situates the judge as part of a larger system while simultaneously maintaining a candid, personal, experience-based approach throughout.

In addition to offering personal reflections on the core judicial function of deciding cases through a sometimes creative process, Posner discusses the effects of pre-judicial careers, judicial selection, judicial training, law clerk selection and management, the writing process, the qualities of good and bad judicial opinions, the distinctive functions of trial court and intermediate appellate judges, judicial “googling” (he is an enthusiast), appellate advocacy, and many other matters beyond those conjured up by an image of the “judicial process” as the individual judge wrestling alone with difficult legal issues. For Posner, it is a matter of “urgent concern” to figure out “how the federal judiciary can cope with the increasing complexity of federal cases.” (p. 3) A question is “complex,” in this usage, “when it is difficult by virtue of involving complicated interactions, or, in other words, involving a system rather than a monad.” (P. 3) Appropriately, then, the book’s non-monadic reflections on judging exemplify the kind of approach that he thinks federal judges ought to take to complex matters more generally.

Those familiar with Posner’s more recent extrajudicial writings will see much that is familiar in both style and substance. Two middle chapters on what Posner describes as “coping strategies for appellate judges,” for example, are reworked versions of a published lecture Posner delivered on judicial restraint, and a development and synthesis of three items Posner wrote for The New Republic. Parts of Chapters 4, 5, and 8, to pick another example, are drawn from a different published lecture distilling Posner’s “beliefs concerning opinions and advocacy into practical advice for federal court of appeals judges, their law clerks, and the lawyers who practice before these courts.” Even apart from the addition of new material and clarifying edits, the revised versions of Posner’s older materials are worth reading and digesting as parts of a larger whole; their location in the book reveals Posner’s understanding of the overall coherence of these extrajudicial writings.

The book’s integration of earlier materials is not, however, uniformly successful. The chapters on judicial restraint (Chapter 6) and interpretation (Chapter 7), for instance, fit uneasily into the book because Posner’s reduction of these ideas to judicial attempts to escape from complexity are unconvincing. The chapter on judicial restraint would have fit better packaged as one influential federal appellate judge’s personal evaluations of some of his predecessors’ attempts to address constitutional questions (which the best parts of this chapter provide). And the chapter on interpretation should have been left out or at least significantly condensed and combined with the chapter on judicial restraint.

More generally, the most illuminating portions of the book are those in which Posner the judge offers experience-based advice and insights to those muddling through the judicial process daily, rather than those in which Posner the public intellectual takes on rivals. “I may be a good judge, a bad judge, or an indifferent judge,” Posner writes at the outset, “but I am undeniably an experienced judge.” (P. 2) Indeed. Appointed to the United States Court of Appeals for the Seventh Circuit by President Reagan in 1981, Posner has written more than 2,800 published judicial opinions, heard over 6,000 oral arguments, and read more than 15,000 briefs; he has also conducted (a much smaller but non-trivial number of) trials, pretrial proceedings, and settlement negotiations, participated in three-judge district court decisions, and decided appeals as a visiting judge in the Federal Circuit. Posner’s reflections on the cumulative experiences of his three-plus decade judicial career illustrate his lived commitment to Holmes’s aphorism about the life of the law.

Because understanding judges’ limitations and weaknesses is as important to him as understanding their capabilities and strengths, Posner reveals aspects of the judicial process that are usually hidden from all but judges, as well as others that remain hidden from or ignored by the judges themselves. In discussing post-argument conferences, for example, Posner asserts that judges “for the sake of collegiality often pull their punches in stating their view of how the case should be decided.” (P. 129) And he adds that “[o]nce a judge has indicated his vote in the case, even if tentatively, concern with saving face may induce him to adhere to his vote in the face of the arguments of the other judges, who moreover may be reluctant to press him to change his mind, fearing they’ll offend him by doing so.” (P. 129) Nor does the writing process necessarily bring previously unappreciated analytical and legal difficulties to light. Having entered laterally after a career path that encouraged them to act more as editors than as writers, most judges delegate opinion writing to law clerks. And although law clerks are “on average sharper analytically than their judge, law clerks are reluctant to argue with the judge.” (P. 255) A clerk may develop doubts “about the soundness of his judge’s take on a case . . . when in drafting the opinion the clerk discovers a problem that neither he nor his judge had noticed.” (P. 255) But that is typically too late: “The clerk will be tempted to paper over the problem rather than admit to his judge that he had failed to provide accurate advice before the argument and the vote. His job now is to defend the vote.” (P. 255)

Posner not only describes pitfalls in the decision process for appeals, but also explains some of what he does (and thinks other judges should do) to avoid or minimize them. One theme running through these counsels is the importance of candor. Within his office (no archaically termed “chambers” for him), Posner insists that clerks call him by first name because he wants them to be entirely candid and direct, “brutally so if they want.” (P. 127) Appellate judges should write their own opinions, Posner contends, as clerk-drafted products tend toward obfuscatory formalism. And these opinions should identify and discuss all the considerations (not just the formal legal considerations) that the judge is conscious of influencing the judge’s decision. Opinions written for other judges on a panel may require the judge “to compromise his views or blunt the opinion’s rhetorical thrusts,” and “concern with preserving collegiality, as well as consideration for the feelings of litigants and their lawyers, may properly induce a judge to turn down his rhetorical volume.” (P. 267) But while rejecting “let it all hang out” as a judicial motto, Posner insists that an opinion can and should be candid even while decorous. (P. 267)

To organize his observations and the prescriptions that emerge from them, Posner deploys a fundamental contrast between legal formalism and legal realism, which he develops throughout the book. The formalist acts as if conventional legal materials provide right answers in all cases, while the realist recognizes that this is not so and aims for reasonable and sensible results. In difficult cases, the formalist sees primarily legal complexity, while the realist sees primarily factual complexity. Posner wants judges to be realists. But who doesn’t (at least some of the time and with respect to some matters)? Certainly, no formalist that I am aware of fits Posner’s description of the type early in the book: someone who believes “that all legal issues can be resolved by logic, text, or precedent, without a judge’s personality, values, ideological leanings, background and culture, or real-world experience playing any role.” (P. 1)

Fortunately, the book’s many incisive mid- and low-level observations have value in themselves, even if one rejects Posner’s seemingly across-the-board advocacy of greater realism. And one should. The reader is put on guard to beware a false dichotomy when Posner describes formalism narrowly and then describes realism as “everything in legal thought and practice that is not formalism” (P. 5). Sure enough, when Posner later elaborates on the distinction, he describes “extreme formalism” and “extreme realism” as two ends of a spectrum along which American judges can be located. And yet the two are not really polar opposites even in Posner’s view. He renders all-the-time judicial realism plausible only by defining realism to subsume formalism. He writes that the good realist judge on a federal court of appeals acts like a formalist most of the time: “Because most appeals to federal courts of appeals can be decided satisfactorily by straightforward application of known and definite law to the facts of the case, and because most trial judges and intermediate appellate judges take seriously their role as modest law appliers—but also because it takes less time and effort to dispose of a case by application of known law to fact than by forging new law—federal court of appeals judges most of the time do decide appeals formalistically.” (P. 107) To which one should add: They would be bad judges if they did not decide these appeals formalistically.

Hints of the importance of formalism even at the Supreme Court level come through in a couple of passing observations Posner makes about Justice William O. Douglas. Here is someone who would seem to be the quintessential judicial anti-formalist. Yet Posner qualifies his one positive assessment of Douglas by limiting it to the time “before he soured on judging.” (P. 41) What exactly was it that Douglas soured on? And even though Douglas wrote his own opinions—as Posner thinks good appellate judges should—Posner rates those opinions as “the weakest” among those he saw when clerking for Justice Brennan. (P. 21) The reason they were weak, Posner says, is not that Douglas “was dumb” but “rather because he was bored.” (P. 21) What was he bored with, if not the bread-and-butter legal reasoning (most of it formalist) that makes up the daily fare even of Supreme Court Justices?

There is no reason that formalism in theory cannot match formalism in practice by subsuming a dose of realism. Posner acknowledges as much about formalist practice when he observes that modern formalists include “low-level practical concerns” in their judicial reasoning and then states that “modern formalism is better described as a tendency than as a dogma.” (P. 116) So, too, with the modern judicial realism that Posner endorses. Despite the impression one gets from the beginning of the book, by the end of Posner’s Reflections on Judging, it is clear that whatever else it may be, modern judicial realism is not best understood as anti-formalism.

Cite as: Kevin C. Walsh, Posner on Realist Judging, JOTWELL (December 10, 2013) (reviewing Richard A. Posner, Reflections on Judging (Harvard University Press, 2013)),

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

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

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

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

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

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

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

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

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

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

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

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

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

Cite as: Allan Erbsen, Substance, Procedure, and the Interdependence of Gatekeeping Standards Across Multiple Stages of Litigation, JOTWELL (November 20, 2013) (reviewing Louis Kaplow, Multistage Adjudication, 126 Harv. L. Rev. 1179 (2013)),