Thomas O. Main, Jeffrey W. Stempel, & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism
(Aug. 17, 2020), available on SSRN
Who are the most textualists federal judges (at least in the context of “snap removal”)? Thomas Main, Jeffrey Stempel, and David McClure conclude that they are younger, Republican-appointed, white, female judges who attended elite universities. This conclusion is but one of many important insights their empirical work offers to the continuing snap-jurisdiction debate.
For the uninitiated, snap removal is a proper (or improper) exercise of federal removal jurisdiction, depending upon your approach to statutory interpretation. The primary federal removal statute allows a state-court defendant to remove a case to federal court when it otherwise could be brought in diversity jurisdiction. One exception to this scheme, the forum-defendant rule, bars removal “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Because the statute requires the forum defendant to be both joined and served, in many states there is a window of time in which the forum defendant is joined but not yet served, during which the non-forum defendants may attempt removal. That is to say, these non-forum defendants may be able to remove if they do it as quick as a snap.
While snap removal pre-dates the Internet era, the digital age has sharpened this practice. Wealthy defendants have access to state-court-docket tracking software that empowers snap removals at breakneck speed. This practice quashes the power of the forum-defendant rule by swift action, gutting the intent of the Congress to leave suits with in-state defendants in state court. The lower federal courts—especially district courts, given the non-appealability of remand orders—have split on whether to allow such snap removals; the prevailing view, as shown in a different work by these authors, is that they are permissible.
This split offers insight into the statutory-interpretation practices of federal district court judges. While many (likely rightly) argue that the textualism-vs-purposivism dichotomy does not often animate the actual day-to-day work of the lower federal courts, the snap-jurisdiction question presses the issue. The plain text of 28 U.S.C. § 1441 allows for snap removal, yet the unquestioned intent of the Congress in drafting it in 1948 was to prevent plaintiff gamesmanship in removal and to strengthen the home-forum-defendant rule, not weaken it. As Main, Stempel, and McClure put it, “applications of this statute require either a hyper-literal reading that flouts Congressional intent or a purposive reading that evades crystal-clear text; there is no middle ground.” Thus, judges facing a snap-removal question are forced to pick either the textualist or purposivist team, unless courts turn to a creative understanding of textualism and the statutory mischief rule. In important ways, then, the snap-removal question is a proxy for a judge’s commitment to textualism or purposivism.
Main, Stempel, and McClure take on the empirical question of determining how this team-picking shakes out in the lower federal courts. In so doing, they offer necessary detail as to where snap removal occurs most often (California, Pennsylvania, and New Jersey), whether snap removals are increasing or decreasing (they are increasing), whether snap removals are becoming more or less successful (more successful), and whether the type of case matters (tort claims are more likely to be removed successfully than contract claims). These findings alone render this paper worth a serious look.
But for me, the most interesting insights spoke to the identities of the judges most likely to allow snap removal. Which is to say, assuming one accepts the snap-removal question as a proxy for textualist or purposivist interpretive commitments, the authors offer deep insight as to who is on which team. Making no pretense of conveying all the nuance that they offer in this short essay, they find the following:
- Republican-appointed judges are more likely to be textualists, and Democratic-appointed judges are more likely to be purposivists.
- Female judges, appointed by either party, are more likely to be textualists than male judges.
- Younger judges, appointed by either party, are more likely to be textualists than older judges.
- Elite-university credentialed judges correlate with a commitment to textualism by Republican-appointed judges and with a commitment to purposivism by Democratic-appointed judges.
To be sure, some of these findings, like the party of the appointing president, are not surprising. But I found the gendered nature of a commitment to textualism unexpected and interesting. Similarly, the disordinal interaction for attendance at elite educational institutions was unexpected and worth pondering.
This paper raises much to consider beyond snap-removal data. To take just one question: Does this data show that gender diversity on the bench impacts outcomes in measurable ways in matters having (at least on their face) little to do with gender equity? I do not wish to suggest that the authors attempt to squeeze more and grander conclusions from their empirical findings than they can support. Nevertheless, many scholars, such as Christina Boyd, find such an impact. But these studies have focused on discrimination cases—not dusty issues of jurisdiction. I finished Main, Stempel, and McClure’s paper supporting the call to diversify the bench more strongly than I had before reading.
What an unexpected result from an empirical study of snap removal. And all the more reason you should read this piece straight away.
Cite as: Lumen N. Mulligan, What Does a Textualist Look Like?
(February 18, 2021) (reviewing Thomas O. Main, Jeffrey W. Stempel, & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism
(Aug. 17, 2020), available on SSRN), https://courtslaw.jotwell.com/what-does-a-textualist-look-like/
Alyssa King, Global Civil Procedure
, __ Harv. Int’l. L. J. __ (forthcoming 2021), available at SSRN
Remember when civil procedure was making headlines? Dozens of courts relied on familiar procedures to dismiss meritless lawsuits lacking proof or factual support. The Supreme Court dashed President Trump’s hopes of a judicial reversal of fortune by relying on standing to reject Texas’s attempt to have the Court exercise original jurisdiction over its suit against Pennsylvania and other states. While Trump and his affiliates complained that cases were being dismissed based on “technicalities,” those dismayed by Trump’s attempt to subvert the election rejoiced that civil procedure did its basic job of protecting justice.
These recent events—and more recent ones—provide a striking backdrop for Alyssa King’s Global Civil Procedure. Surveying procedural developments in litigation and arbitration around the world, King reveals an overlapping consensus in how institutions handle civil dispute resolution. She demonstrates a growing consensus on what procedure governs civil dispute resolution around the world but cautions that this seeming harmony conceals fundamental disagreements over what procedure is for, and thus differences in what procedure can and should do in different political contexts.
King defines global civil procedure to “include the procedural rules, practices, and social understandings that govern international litigation and arbitration.” Reading this definition, you might think that global civil procedure would be an eclectic combination of different procedures. But varied tribunals have adopted “global civil procedure norms,” norms “adopted across courts or arbitration providers with the purpose of making that jurisdiction or provider more competitive in attracting transnational litigation or arbitration.”
By identifying the international dispute resolution community’s convergence on certain global civil procedure norms, the article makes (at least) three important contributions that are worthy of the attention of those interested in domestic or international litigation or arbitration (or both!). These insights are also revealing for students of democracy, judicial independence, and the interaction between courts and politics.
First, King provides a useful frame for understanding the current state of transnational dispute resolution and the receding importance of U.S. courts. She notes the convergence of certain procedural norms across both arbitration and litigation. She focuses on three cases studies, demonstrating similarities in norms about the importance of decisionmaker independence, discovery, and the ability to aggregate claims across transnational litigation and arbitration. Notably, this convergence happens across modes of adjudication and geographic boundaries. King identifies an emerging “common language” about procedural values such as efficiency and impartiality.
Second, King questions the theory that competition among dispute-resolution forums will lead to a race to the top and an agreement on best practices. According to that theory, parties with choices about where to duke out their disputes will choose the forums with the most efficient rules—especially if the parties must agree on that forum in advance through a contractual forum-selection clause. King doubts that rosy account, while recognizing that courts and arbitral tribunals often adapt their procedures with that competition in mind.
The market hypothesis, King argues, relies on three assumptions: (a) parties actively choose a particular forum for its procedures, (b) that choice represents revealed preference, and (c) that preference chooses efficiency. But none of these assumptions holds true across the board. For example, because certain actors, (e.g., lawyers who practice transnationally) are often the vehicles for spreading procedural norms across different legal systems, these actors may choose some procedures for their familiarity, as much as, if not more than, for other qualities. For example, when English lawyers advise the Kazakh government about how to set up a new international commercial court in the Astana International Financial Centre, they may draw upon “international best practices,” but they identify English common law practices as the best. The argument is circular, of course, since Kazakh officials hired these lawyers for their English common law expertise. But King is right to point out the blurriness between “best” practices and practices that may be “most familiar” to a certain elite set of lawyers. This is not to malign those elites’ preferences, but to demonstrate that they are neither universal nor unbiased.
Global civil procedure thus provides a useful perspective for viewing other kinds of procedural reform. Drawing inspiration from Brooke Coleman’s work on the Efficiency Norm and One Percent Procedure, King pays attention to who pushes for reforms and who stands to benefit. She identifies a wide range of actors—including international lawyers, clients, litigation funders, adjudicators, and institutions—as the drivers of global civil procedure and explains the convergence of these norms through the lens of their interests. With these insights, King adds to the growing literature on procedural convergence and harmonization around the world, casting doubt on and adding perspective to the law-market narrative used to explain procedural reform.
Third, and perhaps most interestingly, at least to a wider audience, King appreciates the limits of convergence. Procedural “[r]ules that seem to do similar things, [and] for which similar rationales are given,” may “still ultimately reflect divergent and likely incompatible understandings of what adjudication is for.” Political context matters, as seemingly similar procedural rules can sustain and support different kinds of states.
A prime example is judicial independence—a key feature of the legitimacy, authority, and fairness of the U.S. legal system and a topic of recent debate. U.S. courts adopt strong norms and rules to avoid conflicts of interest, so the judge does not have an inappropriate relationship with or bias towards one of the parties. Separation of powers, life tenure, and other constitutional structures are supposed to ensure the independence of federal judges.
It may surprise lawyers raised on this account of judicial independence to learn that this account plays an important role in the socialist legal tradition. When considering judicial independence, King therefore urges us to ask “independence from whom and to do what.” In Communist East Germany, for example, independence sometimes meant “responsiveness to the ‘right’ external interventions,” namely, supporting prevailing party policy; after all, socialism began with the idea that “law had to serve the interests of the proletariat,” which were represented by the Party. Because politics changed quickly in East Germany, “for many judges, ‘the safest way to go forward was to make no decision at all.’” (Note the similarities between using the “passive virtues” of judicial restraint in the U.S. system to avoid disrupting an election and using judicial restraint in the socialist system to avoid interfering with political party control.) Similarly, recent Chinese legal reforms promoting judicial independence tend to create institutional independence from local government and local Communist Party entities, but in a way that helps the centralized Communist Party retain its control.
We might think of global civil procedure as akin to standardization of the metric system or the international postal system. It makes life easier for professionals working across borders and captures professional views of what “good” dispute resolution procedure looks like. This coordination has considerable benefits.
But convergence also has its limits. In stark contrast with American idealization of procedure as a protector of justice, King emphasizes that “global civil procedure is … not a vehicle for deeper harmonization on issues such as democracy, or even liberalism.”
When I originally drafted this jot, King’s insight made me worry about whether we are too quick to celebrate procedure as protecting American democracy against President Trump’s baseless allegations of election fraud. From one perspective the procedural protections of Rule 12(b)(6) and standing doctrine stopped legal assaults on the election. From another perspective, however, these doctrines simply allowed courts to avoid deciding.
Of course, recent events demonstrate that victory in the courts is not always the end of the story. King teaches that the commitments of judges who implement procedure and their ability to withstand political pressure can direct procedure’s power. But that takes us only so far. It is a lesson worth considering on the domestic and global levels—and in a broader political context.
Bryan Lammon, An Empirical Study of Class-Action Appeals
(2020), available at SSRN
Modern class-action scholarship needs more myth-busting. Class-action narratives—for and against aggregate litigation—have spurred decades of procedural reform, from the 2005 Class Action Fairness Act to amendments to Federal Rule of Civil Procedure 23. Scholarship rarely interrogates whether the reality of class-action practice aligns with these narratives. This leaves a potential gulf between scholarship and practice. Bryan Lammon’s An Empirical Study of Class-Action Appeals contributes to the growing body of research aimed at bridging this gap.
In this work in progress, Lammon debunks myths about class-action appeals. The function of Rule 23(f) is clear enough: it permits interlocutory review of class-certification decisions, creating a carve out to the final judgment rule. Certification is a pivotal procedural point in the life of a class action. If a case is not certified, its value is limited to the damages sought by the named class representatives. If it is certified, the value of the case jumps to cover all potential class members.
Since its enactment in 1997, however, Rule 23(f) has been somewhat of an enigma. While the rule’s function and rationale are straightforward, its potential impact on certification is murkier. As Lammon details, Rule 23 engenders discontent from both plaintiffs and defendants. Plaintiffs fear the rule advantages defendants by increasing the reversal of certification decisions. On the other hand, “[d]efense-side interests contend that the courts are inconsistent in applying Rule 23(f) and that the rule insufficiently protects defendants from the pressure to settle.”
To assess the legitimacy of both critiques, Lammon created a new dataset of all federal class-certification appeal petitions from 2013-2017. The article provides foundational information about the volume of appeals and general grant and denial rates. These findings are compelling given the roughly 850 petitions underpinning the article. But Lammon’s deeper data dives make the biggest contributions.
He addresses the criticisms against Rule 23(f) under two dimensions: “party effects” and “circuit effects.” The findings as to each dimension are surprising—and encourage a degree of hope when many scholars (including me) have lamented the demise of class actions. On circuit effects, the article concludes that appeal results differ minimally by circuit, though not enough to conclude there is any particular circuit bias. As for party effects, the article dissects whether the party seeking the appeal affects the outcome. Lammon finds reversal rates split evenly by party, thus minimizing concerns that interlocutory appeals favor defendants. This finding means there is “at least one corner of the class-action universe in which plaintiffs are not predominately losing.”
Instead, the true burden of Rule 23(f) is its bearing on the time and resources necessary to litigate class actions. Lammon explains that “allowing parties to petition for review of class-certification decisions can add to the cost, delay, and difficulty in adjudicating class actions.” The appeal process is a protracted one, extending the life of a class action anywhere from 80 to 828 days. Defendants thus are the long-term beneficiaries of interlocutory review—win or lose on appeal.
Empirical work, though necessary to understand procedure in application, is a risky endeavor. It is easy to overstate claims or flirt with unnecessarily complex statistical wordplay to increase the findings’ appeal. Lammon avoids both potential pitfalls. Throughout the piece, he encourages readers to draw their own conclusions while subtly spelling out potential deductions. He is also refreshingly willing to acknowledge the limitations of his findings. For example, he concedes that the party effects results may differ if one considered the particular practice area or remedy sought in each petition.
Further, Lammon is clear—at times delightfully chatty—about some of his decisions in applying statistical models to his work. This transparency helps with the perspicuity and pacing of the piece, which is a fast read despite its depth. The detailed methodology, spelled out in the text and accompanying appendices, allows future scholars to replicate and expand on his findings. This is another notable often unacknowledged contribution that the Article offers class action scholarship.
Lammon’s article made me question my own assumptions about the effect of Rule 23(f). It also made me wish, dang it, that I had thought to write the article. Admittedly, it is better that he did. It is a great read, one I will likely return to many times.
Thomas D. Russell, Frivolous Defenses
(Aug. 17, 2020), available at SSRN
From the mid-1980s through the turn of the twenty-first century, tort reform advocates, corporate entities, politicians, and lobbyists have raged about an alleged plague of frivolous lawsuits clogging state and federal dockets. In what perhaps might be characterized as revenge of the plaintiffs’ bar, Thomas Russell has turned the table and written the first systematic study of frivolous defenses. This provocative article, which has raised the ire of insurance defense attorneys, is worth reading as a compelling counterpoint to the frivolous lawsuit narrative.
Russell is a torts professor and plaintiffs’ attorney in Colorado. Based on his experience representing plaintiffs in auto accident litigation, Russell concluded that “Sometime after the first-year civil procedure course, insurance defense lawyers learn to ignore the rules of civil procedure when filing answers to lawsuits.” In handling client cases, insurance defense attorneys repeatedly frustrated Russell with the paucity of their responses to the averments in his complaints. Trial judges frustrated Russell by denying his motions concerning the inadequacy of defense responses.
Russell anchors his discussion in Nora Freeman Engstrom’s scholarship on “settlement mills.” He notes that Engstrom’s scholarship demonstrates how plaintiffs’ lawyers participating in settlement mills engage in routinized practices, conduct little factual investigation, and take shortcuts to achieve the quick settlement of small cases. Russell’s article crosses from the plaintiffs’ side of the docket to examine the work of insurance defense lawyers in auto accident lawsuits who respond by filing boilerplate, largely non-responsive answers to plaintiffs’ averments. As titillating as studies of plaintiffs’ lawyers may be, additional study of the plaintiffs’ side without a correlative look into defense work perpetuates a distorted view of tort litigation. His study of insurance defense practices is intended to provide this balance.
The heart of the paper is an in-depth empirical study of the Colorado state court docket in 2015, focusing on auto accidents occurring between 2012 and 2015. Approximately ¼ of Colorado car crashes result in personal-injury claims, comprising the highest proportion of personal-injury cases in the state. He examined answers in 355 cases, focusing on defense lawyers’ responses to plaintiffs’ averments in their complaints and cataloguing how defense attorneys’ responses departed from the rules of procedure when answering.
The centerpiece of Russell’s analysis is compliance—or non-compliance—with Colorado Rules of Civil Procedure 8(b) and (c). Colorado Rule 8(b) directs a defendant to state in short and plain terms their defense to each of the plaintiff’s claims by admitting, denying, or indicating a lack of knowledge or information sufficient to form a belief as to the truth of an averment. Like its federal counterpart, Colorado Rule 8(c) permits defendants to assert affirmative defenses.
Russell argues that in replying, defense attorneys fail in their professional obligation to conduct the adequate investigation required by Rule 11 prior to responding, as well as frustrating plaintiffs’ ability to obtain useful information to advance their litigation
First, defense lawyers routinely fail to respond to plaintiffs’ averments by stating that an averment “calls for a legal conclusion,” a response not recognized by, and thus contrary to, the rules. Second, defense attorneys fail to admit information concerning co-defendants, an evasion not authorized by any rule or privilege. Third, defense counsel routinely assert that a “document speaks for itself,” a boilerplate response that evades Rule 8’s clear path. Finally, Russell documents the boilerplate laundry list of affirmative defenses asserted by insurance company defendants, many of which are clearly unmeritorious or fantastical.
Russell’s hero is the late federal Judge Milton Shadur of the Northern District of Illinois, one of few federal judges to balk at defense lawyers’ boilerplate responses that evade Rule 8 and its goal of providing meaningful information to plaintiffs. Discussing Rule 8(b) of the Federal Rules of Civil Procedure, the counterpart to the Colorado rule, Judge Shadur insisted that too many lawyers “feel a totally unwarranted need to attempt to be creative by straying from that clear path.” He complained of defense attorneys’ “pervasive and impermissible flouting of the crystal-clear directive” of the rules for responsive pleadings.
Russell argues that his analysis parallels Engstrom’s, insisting that insurance defense attorneys engage in similar mill-style practices. He makes a sweeping indictment: Defense lawyers engage in routinized practices; conduct little or no pre-answer factual investigation; ignore factual investigations that claim agents have conducted; ignore the rules of civil procedure; take purposive, obstructive actions that defeat the fact-finding goals of pleading; and likely delegate legal work to paralegals, thereby violating the Rules of Professional Conduct. In the final analysis, Russell’s remix of Engstrom’s scholarship is his recommendation to law professors “Don’t Let Your Law Students Grow Up to be Insurance Defense Mill Lawyers.”
A federal judge is accused of misconduct and an investigation begins. Before the investigation has concluded, though, the judge leaves her post. What happens next? Does it create an accountability gap, and if so, how much should that concern us? These are the questions that Veronica Root Martinez takes up in Avoiding Judicial Discipline.
This topic is timely and important in light of the crisis of accountability in the modern federal judiciary. Federal judges’ work is high in status and low in transparency, in the sense that social and professional norms give them a great deal of power but allow them to operate mostly out of public view. Those conditions create fertile ground for sexual harassmentand other forms of misconduct, yet the federal judiciary has largely been left to police itself. Federal judges are exempt from workplace misconduct laws such as Title VII. Congress has the authority to impeach and remove them, but in 230 years, the House of Representatives has impeached fifteen judges and the Senate has removed eight.
Martinez focuses on the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, which offers one of the few mechanisms through which allegations of judicial misconduct can be addressed. The statute gives the judicial council of each federal circuit authority to investigate allegations and impose discipline when appropriate. But that authority extends only to judges serving within the circuit. If a judge leaves the circuit’s bench before the investigation is complete, the statute’s grant of jurisdiction evaporates and the matter ends.
Martinez uses three recent examples to demonstrate that short-circuited investigations are not merely theoretical. Maryanne Trump Barry was serving on the Third Circuit when it initiated an investigation into allegations that she had engaged in tax evasion. Shortly after receiving formal notice of the investigation, she retired, ending the investigation. Alexander Kozinski was serving on the Ninth Circuit when it initiated an investigation into allegations that he had sexually harassed several of his law clerks. He retired days later, so the investigation never even got off the ground. Brett Kavanaugh was serving on the D.C. Circuit when allegations became public that he had committed sexual assault while he was in high school. The circuit received several complaints connected to those allegations, but because he left the circuit to become an associate justice of the Supreme Court, all were dismissed.
These examples are well-chosen, and Martinez draws on them to make concrete various flaws in the status quo. A judge with unadjudicated allegations of misconduct can continue to draw a pension equal to her full salary; since her retirement, Barry has continued to receive a judicial pension in the neighborhood of $200,000 per year. Retirement from a judicial post does not equate to retirement from the profession; it might be followed by the practice of law (as with Kozinski) or another judicial position (as with Kavanaugh). Any misconduct that goes unaddressed in one forum might appear again in another.
Systemically failing to address misconduct creates systemic problems, and even as she draws on the lessons of individual instances, Martinez remains focused on that broader view. The failure to complete investigations into judicial misconduct allegations can contribute to a public perception that judges are above the law. The judiciary’s only real authority comes from the public’s faith in it; as Martinez puts it, “who will obey a judiciary that fails to police itself?” That failure of self-policing can also put judges on an ethical slippery slope, under which a judge might not notice his behavior worsening over time. As that deterioration occurs, it might become normalized among the judge’s peers as his standard operating procedure—an open secret perhaps, but not one that other judges feel compelled to do anything about.
Systemic problems require systemic responses, and Martinez offers several. She proposes modifying the Judicial Conduct and Disability Act, to confer authority to complete an investigation after a judge leaves the circuit and to make clear that the inquiry could address whether the judge should remain eligible to receive a pension.
Failing legislative reform—and Martinez is not optimistic on that front—each circuit’s chief judge and judicial council should adopt a “custom of referral” for every non-frivolous complaint they receive. Under this custom of referral, a circuit would simultaneously forward a complaint to Congress and to any state bar to which the accused judge belongs. The congressional referral would be designed to prompt an inquiry into the appropriateness of impeachment proceedings. Although a judge who has retired cannot be removed from the bench, Congress could evaluate whether the former judge should be eligible to receive a pension or serve in a similar federal office in the future. The state bar referral would be designed to prompt an investigation into potential violations of the rules governing attorneys’ professional conduct. Although some judges do not belong to any state bar, some intend to practice law after leaving the bench, so those proceedings could have real teeth.
Martinez covers a lot of ground in this essay, but she does not purport to address all of the situations that might leave allegations against a federal judge unadjudicated. For example, how should the death of a judge affect an investigation into allegations of misconduct? That situation looms large in my mind, because I clerked for Stephen Reinhardt. He sexually harassed Olivia Warren, who was clerking for him at the time of his death in March 2018. Warren tried to report the misconduct through formal and informal avenues, from former Reinhardt clerks to the federal judiciary’s Office of Judicial Integrity, but they (and we) failed her at every turn.
When the allegations became public, some objected that they risked damaging the judge’s reputation for no real benefit. Martinez discusses similar objections. She sees them as consistent with what she refers to as “weak civility”—the idea that judges and lawyers should be mannerly with each other and that allegations such as these are somehow unmannerly. But as Martinez powerfully argues, we should be more concerned with “strong civility,” which prioritizes interpersonal respect and the proper functioning of the judicial branch. That version of civility counsels in favor of a full accounting of any misconduct that has occurred.
Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb, Supreme Court Practice
(11th ed. 2019).
Seventy years ago, Robert L. Stern and Eugene Gressman published the first edition of Supreme Court Practice, intended “to set forth in a single volume . . . as close as possible to everything, outside of the field of substantive law, that a lawyer would want to know in handling a case in the Supreme Court.” For generations, the treatise (known most commonly as “Stern and Gressman”) was an indispensable staple on every Supreme Court practitioner’s bookshelf (and, rumor has it, the bookshelves of more than a few Justices). The new and improved eleventh edition—published late last year and authored by the late Stephen M. Shapiro (to whom it is dedicated), Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb—drives home why: For an institution governed as much by formal and informal norms as it is by rules and statutes (for instance, the settled—but unwritten—understanding that it takes four Justices to grant a writ of certiorari), an accurate, accessible guide to both the written and unwritten rules of the road was an obvious necessity.
More than that, the authors of SCP were (and remain) in an open and behind-the-scenes dialogue with the Supreme Court Clerk’s Office and the Justices themselves. Questions raised in earlier editions have provoked formal and informal rule changes at the Court, and the editions, in turn, have attempted to keep up with formal and informal developments at One First Street. Indeed, a cursory search for citations to the treatise in reported Supreme Court opinions returns 90 hits, from 1957 to this summer. Simply put, SCP has become more than just a practitioner’s guide; it has become a font of institutional knowledge for an institution that is, notoriously, anything but transparent. And it is a one-stop shop for those trying to figure out all kinds of arcane but potentially significant historical tidbits—such as the last time a Justice heard oral argument in chambers (“apparently” in 1980). In that sense, SCPhas become a necessity for students and scholars of the Court as well.
All of that goes to why SCP is singularly useful. But perhaps the biggest surprise to those who pick it up for the first time is that it is readable, straight through, in ways that most treatises aren’t. That is to say, although the book’s signature value is as a desk reference, later editions have increasingly—if unintentionally—become a textbook for a coherent course (self-taught or otherwise) on “how the Supreme Court conducts its business.” In the tradition of Felix Frankfurter and James Landis’s 1928 tome on The Business of the Supreme Court, someone trying to better understand the Court today (and how it has evolved) could simply march through SCP’s 20 chapters (albeit perhaps skipping the last one—on bar admissions and disbarment), and come out with a deeper understanding of the Court’s practices than (dare I say) even the Justices themselves.
And that is where the eleventh edition really shines. It does not just smooth the Court’s rough edges and provide guidance for everything from the mundane to the macro; it provides ever more of a window into an increasingly significant part of the Court’s substantive work: what Will Baude has labeled “the shadow docket,” i.e., the (growing number of) significant rulings that the Justices hand down through orders—especially those granting or denying applications for stays, injunctions, and other forms of emergency relief.
To be sure, for as long as the Court has existed, it is had a procedural docket. As Ross Davies noted, Congress required a lone Justice to sit for a rump Term every August from 1802 to 1839—to dispose of, among other things, any pending procedural matters that did not require the full Court’s attention. But there’s no denying that Justices’ rulings on orders have drawn more attention in recent years—or that they have become more controversial. In October 2020 alone, in the run up to the November elections, the Court handed down 10 shadow docket rulings on applications to grant (or lift) lower-court stays pending appeal, eight of which provoked public dissents. During the October 2019 Term, 11 shadow docket rulings alone provoked four public dissents, compared to only 12 of the Court’s “merits” cases. Simply put, the Justices are doing more to disrupt the status quo in the lower courts pending appeal than they ever have before; their machinations are provoking more disagreements than they ever have before; and (almost) all of this is happening without any opinion for the Court explaining why the Court is ruling the way it is in a particular case—let alone where this broader uptick is coming from or why.
To be sure, the eleventh edition of SCP does not purport to answer these questions. But as much as any other source, it provides a fair amount of evidence and a whole bunch of clues—from the Court’s quiet move to a “continuous” Term in 1979 (which allowed the full Court, rather than a single Justice, to resolve contentious applications even during the summer); to the increasing frequency with which all contentious applications have been referred to the full Court; to the slow but steady decline of in-chambers arguments and opinions; to the subtle shift in how at least some of the Justices have applied the traditional four-factor test for emergency relief. To their credit, the authors do not draw specific conclusions from these individual data points. But they make it possible for others to do so—and to attempt to draw broader lessons from patterns that would be all-but impossible to even see without their efforts.
Critically, though, the shadow docket comes into clearer view thanks to a specific slice through SCP’s 1600 pages, especially its chapter devoted to stays, injunctions, and bail. And although increased popular and academic attention focuses on the shadow docket today, it could shift to another hitherto esoteric aspect of the Court’s work tomorrow—especially if conversations about judicial reforms become more than hypothetical in 2021. Whatever happens, SCP will surely remain first among equals when it comes to legal treatises—as comprehensive and accessible a guide to the actual workings of the Supreme Court as is reasonably possible, and one that already does, and should, provide real value and insights to far more than those of us who consider ourselves SCOTUS nerds. And for that, we owe a debt of gratitude to Stern, Gressman, and their contemporary successors.
The field of judicial administration has started to produce an embarrassment of riches. Many of the legal academy’s best young scholars are taking up critical issues related to how courts operate and how judges reach their decisions. Two forthcoming articles (and their authors), which take on the topic of non-binding authority, are perfect exemplars: Maggie Gardner’s Dangerous Citations and Merritt E. McAlister’s Missing Decisions.
As we know, courts cite to binding precedent in their opinions to support a particular point (e.g., the law on X is Y in Z jurisdiction). There are times, however, when courts cite to non-binding precedent, be it a published opinion from a court that cannot bind it or an unpublished opinion that binds no court. And we generally have assumptions about how this process works. First, that courts cite to non-binding authority sparingly and only when truly appropriate (e.g., for a persuasive point that is not well captured elsewhere). Second, that all decisions that a court might cite—including unpublished ones—can easily be accessed and assessed by the public. Gardner and McAlister challenge these assumptions in their respective articles.
Dangerous Citations examines the curious phenomenon of judges citing non-binding authority. In particular, the article looks to instances in which district judges cite work of other district judges, despite the fact that the opinions of their colleagues cannot bind them. While this practice can be harmless or even useful—as Gardner notes, it can promote consistency in the law, for example—it can also be quite harmful.
Specifically, Gardner divides what she terms “dangerous citations” into two categories: those that are poorly conceived and those that are poorly implemented. Poorly conceived citations are ones in which the non-binding authority being leaned upon simply cannot be authoritative under the circumstances. A classic example is a cite to another case to establish facts (outside of the preclusion context)—courts seem to do this more when asked to fill in factors of a cumbersome multi-factor test. Poorly implemented citations, by contrast, rely upon authority that is not quite apt. For example, a court looks to a sibling court for guidance on a subject and imports a test that does not fit the context at hand.
What are the problems with poorly conceived and poorly implemented citations? First and foremost, they run against our understanding of how authority is meant to operate—it undermines the rule of law if courts cite cases for propositions that they cannot support. And second, such actions can inadvertently introduce errors into decisions, thereby shifting the path of the law in detrimental ways. For example, if a court “borrows” a test from one context and (mis)uses it in another, the law will be the worse for it. These are important concerns to be documenting and assessing, and some may carry into the use of citations to binding authority more generally. They certainly give us pause as we pick up and read the next opinion . . .
Missing Decisions takes on a separate problem of non-binding authority—whether such opinions are available to pick up and read in the first place. One of the great debates within judicial administration over the last several decades was about the propriety of unpublished opinions (opinions that are not published in the Federal Reporter). A truce of sorts made such opinions citable, although non-binding, beginning in 2007. And most thought the issue was largely resolved with the advent of the major legal databases such as WestLaw, Lexis, and Bloomberg Law. That is, the designation “unpublished” became less problematic given that the opinion it referred to was easy enough to locate. McAlister calls into question that “given.”
Missing Decisions painstakingly documents how 27% of merits terminations in the twelve-month period ending September 30, 2017 are missing from the major commercial legal databases. To be sure, most of these are likely quite short and light on reason-giving. Still, this discovery is significant to scholars, practitioners, court administrators, and even judges.
How did so many decisions go missing? Not all decisions are released onto court websites—the websites that then populate the big commercial legal databases. This does not mean these decisions are nowhere to be found; they exist on the federal courts docketing database, PACER. But PACER lacks keyword-search functionality, rendering it of little use—in effect, one would have to know that a particular opinion exists to find it. The gap Missing Decisions identifies, therefore, is a substantial one.
The result, McAlister argues, is that we have been operating under a “false sense of transparency.” And what is the problem with that problem? First, our ability to be an effective check on the judiciary is impeded if a sizeable percentage of its decisions is out of sight (even accepting that many of these decisions may be perfunctory). And second, McAlister suggests that many of the missing decisions come from cases involving pro se litigants, criminal appellants, and non-citizens—our most vulnerable litigants. Depriving future litigants of the chance to review similar cases and outcomes may harm their own litigation chances. Moreover—tying back to a concern that Dangerous Citationsraises—the path of the law could be shifted, even if just modestly, in a detrimental way.
What the two articles have in common, beyond adding to our understanding of how judges and courts operate, is that they identify concerning problems and then provide meaningful solutions. For Dangerous Citations, the solutions are a few-fold. First, appellate courts should create less complex legal tests for lower courts—quelling the demand for shortcuts by which judges inappropriately rely on colleague courts. Second, Gardner hopes to change opinion-writing norms, so that judges internalize quality citations over quantity. Awareness of the problem is necessary to accomplish that goal—and Dangerous Citations paves the way. For Missing Decisions, the solution is at the courts’ fingertips. McAlister proposes that the Judicial Conference issue guidance requiring courts to make all decisions (that are unsealed and that are stripped of personally-sensitive information) freely available on court websites. This step is critical in and of itself and will lead to broader collection of decisions by the WestLaws and Lexises of the world.
Ultimately, Gardner’s and McAlister’s works shed necessary light on how we maintain and rely upon non-binding decisions. Their articles challenge our notions of the status quo and should lead to real-world fixes, leaving all of us—including the courts—the better for it.
Marin K. Levy, The Status of Non-Binding Authority
, JOTWELL (November 11, 2020) (reviewing Maggie Gardner, Dangerous Citations
, Maggie Gardner, Dangerous Citations, 95 N.Y.U. L. Rev.
(forthcoming 2020).; Merritt E. McAlister, Missing Decisions
, Merritt E. McAlister, Missing Decisions, 169 U. Pa. L. Rev.
(forthcoming 2021).), http://courtslaw.jotwell.com/the-status-of-non-binding-authority.
Seth Davis’s The New Public Standing canvasses and interrogates ways that state and local governments allege financial injuries to challenge the constitutional validity of federal law. Federal courts are often quite generous in entertaining private litigants’ claims based on economic injuries (as opposed to ideological or “conscience-based” injuries). Across a wide range of domains, states have relied on this generosity to allege creative economic injuries, even when the states’ actual objections to the relevant federal law are based on ideology. In Davis’s view, this kind of “new public standing presents constitutional, prudential, and remedial issues that are distinct from those raised by private standing for the public and by private standing based upon financial injuries.”
Previous scholars have examined ways that state governments allege injuries to their sovereignty or “quasi-sovereignty.” States sometimes invoke the doctrine of parens patriae to allege injuries to the health and welfare of their citizenry; states allege injuries to the geographic reach of their sovereign territories; and states allege injuries to their lawmaking authority. It has been said that states receive “special solicitude” as quasi-sovereigns, permitting them to command the jurisdiction of federal courts under circumstances that private litigants would not.
But Davis’s focus is different—he targets cases in which state and local governments allege economic injuries. By way of example, states challenging President Trump’s potential violations of the Emoluments Clause contended the President’s actions put them at an unfair competitive advantage, given their ownership stake in properties. States challenging President Trump’s seven-country travel ban contended that the ban would affect revenue their public universities would otherwise receive from students who could not enter the United States. And at least one state challenging President Obama’s Deferred Action for Childhood Arrivals (“DACA”) policy argued that to comply with federal and state law, the policy would require the expenditure of funds to provide drivers’ licenses to individuals who would otherwise be ineligible.
To help explain these moments, Davis offers what Richard Fallon calls a “doctrinal Realist” account of this phenomenon. He seeks to “pars[e] … opinions to identify their operative facts against background patterns that could also facilitate predictions of results in future cases.” In Davis’s view, the new public standing will be more durable than previous attempts to open the courthouse doors for litigants with ideological or conscience-based objections to governmental policies. He contrasts the extant phenomenon to the Supreme Court’s expansion of standing for taxpayers in the late 1960’s, from which the Court sharply retreated. The new public standing is distinguishable in its origins and in the scope of its ideological consequences. In contrast to taxpayer-standing doctrine, conservative states were early innovators in making expansive and creative accounts of economic harm. Moreover, so-called “blue states” and “red states” have claimed economic injury against Republican and Democratic policies. As Davis explains, the “new public standing is an important vehicle not only for progressive legal mobilization, but also for conservative legal mobilization—a vehicle that allows state executive officials of any ideology to bring partisan battles over the national public interest before the federal courts.”
At the same time, Davis contends that courts and commentators should be skeptical of states’ claims for a form of highly deferential “special solicitude” with respect to alleged financial injuries. He acknowledges that for states, a “loss of revenue may directly implicate the state’s uniquely public capacities to make and enforce law and to provide government services.” But relaxing standing requirements for states’ economic injuries could result in relatively few limits to enterprising state attorneys general seeking to challenge federal laws they do not like. “Given the interdependence of state governments and the federal government, any number of federal actions will affect a state’s finances to some degree, and, therefore, any number of state attorneys general will be able to point to financial injuries as a basis for suing the federal government.” Davis predicts that courts will rely on doctrines such as third-party standing and rules against manufacturing self-inflicted injuries to tame the new public standing. And he implies that this is a salutary development.
Davis also offers insights into what the new public standing might teach us about broader Article III doctrine. Given that states are relying on purported economic injuries to raise ideological objections, he contends that the rise of new public standing should encourage courts to revisit the distinction between financial and ideological injuries in private standing doctrine. Otherwise, by insisting on “concrete” injuries for private litigants who are less equipped to articulate structurally based financial arguments, public law litigation will be increasingly funneled through (sometimes highly partisan) state attorney generals’ offices.
These insights will undoubtedly prove influential, as Article III courts attempt to braid the power and flexibility that the new public standing gives them with the ever-present need to tailor the role of an unelected federal judiciary to resolving actual cases and controversies. Those who care about the enforcement of public law, and those who care about the proper role of courts in a democratic society, can benefit from Davis’s balanced, nuanced, and realistic analysis.
Amanda M. Rose, Classaction.gov
, __ U. Chi. L. Rev.
__ (forthcoming 2020), available at SSRN
It is easier than ever to notify class members of a proposed settlement and for class members to file claims. So why are participation rates so low in consumer class action settlements? This is one of the most important puzzles in modern complex litigation. With billions of dollars spent on class action litigation, a 9% participation rate in consumer class actions seems a dismal return on that collective investment, even accounting for the deterrent or quasi-punitive functions that a large settlement represents for the defendants. In her new essay, Amanda Rose offers a solution to this and other related problems of class action administration and transparency—have the federal government develop and administer a website, classaction.gov.
Classaction.gov is an intriguing proposal that would centralize and standardize certain administrative aspects of class action litigation and settlement (notice, informational websites, claims processing, and claims distribution) that she identifies as barriers to higher class participation rates as well as to the overall transparency of individual actions and class action litigation. Rose’s key insight is that broader and cheaper notice are insufficient to induce broader class participation, even when the average class recovery is a non-trivial sum. Rather, consumers must absorb the costs of reading and understanding the notice and assuring themselves that it is not fraudulent. A federally sponsored website would leverage Americans’ trust in the federal government. The use of a common government database would further streamline both the notice and claims processes.
Rose acknowledges the advantages of classaction.gov for improving direct and comprehensible notice to consumers. But her essay suggests that consumer distrust in the notice and claims process is the biggest sticking point in improving class participation rates. She observes that direct notice to class members has become much cheaper with the advent of electronic communication; likewise, new technology makes for more efficient and effective identification of potential class members. She rightly observes that something like classaction.gov would reduce the number of mismatched contact information and be a vehicle for proactively creating databases of consumers, their likely matches to class actions, and their best contact information.
While I agree that the consumer distrust argument is important and a compelling reason to give serious consideration to the classaction.gov proposal, Rose underestimates the persistent problems of notice, thus ignoring ways in which classaction.gov could be further developed to refine class action notice practices. Her approach still places too much faith in direct notice. She implies that classaction.gov can fix much of what is broken with our current system of direct notice – that it still fails to identify all potential class members, that contact information may be faulty, that the notices are unclear and difficult to parse, and that consumers who receive and read the notices are hesitant to invest the effort needed to assure themselves of the veracity of the notice. In fact, however, many emails and official hard-copy envelopes are simply discarded or deleted by consumers’ as they try to sort through the daily avalanche of emails and snail mail. An email may remain unopened or perhaps deleted, not only because of distrust but because it does not rise to the top of personal communications triage. And by the next day or week, it is one of many overlooked or forgotten missives. This follows in the long legal tradition of assuming that direct notice is almost always the best form of notice, tantamount to actual notice. But what if this is no longer true? What if other forms of notice, such as notice by publication, are actually superior as a replacement for or augmentation of direct notice?
Rose is skeptical of this argument. She finds proposals for invigorated programs of targeted advertising and database searching “impractical” for most consumer class actions and argues that consumers are more likely to respond to direct notices than advertisements.
But allow me to challenge this conventional wisdom with a recent anecdote.
In the summer of 2019, the parties to the Equifax data breach litigation announced a settlement plan. After a provocatively titled article in Slate declared, “You Have a Moral Obligation to Claim Your $125 from Equifax,” CNBC columnist Dan Mangan wrote “I may have banked up to $125 by filling out this Equifax claim in seconds — what are you waiting for?” Both articles went viral – especially after influential freshman Representative Alexandria Ocasio-Cortez retweeted the CNBC column with the message: “Everyone: go get your check from Equifax! $125 is a nice chunk of change. Get that money and pay off a bill, sock it away, take a day off, treat yourself, whatever you’d like- but cash that check! It takes one minute. Do it here.” Within hours, so many consumers had filed claims that Rep. Ocasio-Cortez hastily added a tweet advising potential class members to opt for the free credit monitoring option instead.
The Equifax story proves that we could be more creative about class action notice than limiting ourselves to improved direct-notice practices and plans. And that the power of Internet amplification of ideas might augment targeted advertising to more efficiently direct the right consumers to relevant class action certification or settlement notices. Rose’s proposal for classaction.gov—with its potential for growth, standardization, but also creativity—would be the perfect place to incubate and collectively execute innovative notice strategies, while continuing to fortify direct-notice practices. The Equifax example also suggests, however indirectly, that Rose is right about harnessing the power of the federal government to shore up confidence in the veracity of settlement notices and communications. Ocasio-Cortez is a popular figure, but at least some of her authority derives from the fact that she is a member of Congress. Her message that the settlement was real and that participation was important convinced millions to take the time to file a claim. It is time to use the transparency that we would gain from classaction.gov to allow the government and commentators to learn from isolated notice successes and turn them into comprehensive rules and programs.
The current global pandemic continues to disrupt our lives. But the pandemic has also inspired some pleasant surprises in the legal profession, ranging from humorous ways of engaging with law students to inventive ways of improving access to justice.
I want to highlight a particularly pleasant surprise for civil procedure scholars—the Civil Procedure Unavailability Workshop (the “Workshop”), a virtual workshop organized by Suzanna Sherry and Adam Steinman that has met weekly this summer and will continue monthly in the fall. (Full disclosure—Adam Steinman is the co-editor of the Courts section of JOTWELL, and I presented at the Workshop in early June). A full list of previous and upcoming presentations can be found here.
Unlike a typical law-school workshop, the Workshop does not necessarily focus on a work-in-progress. Instead, each presenter discusses a topic of interest to civil procedure scholars. The topics have covered a wide terrain of civil procedure—e-discovery, anti-SLAPP suits, the Erie doctrine, protective orders, class actions, personal jurisdiction, and even the bar exam, just to name a few recent topics. For the first half of each session one of the moderators asks the presenter two-to-four questions about the topic. These initial questions introduce the topic for nonexperts and show the topic’s relevance to current trends in scholarship and to curricular needs. The second half is a fun free-for-all where participants ask the presenter questions about the topic.
The participants are the best part of the workshop and have shown the promise of technologies like Zoom in fostering scholarly exchange. To provide some context: The typical workshop is conducted in a room at a law school, with the presenter speaking to a small group of approximately 20 physically present participants. The presenter may be from a different institution but almost all of the participants in the audience are affiliated with the law school (or perhaps larger university) hosting the workshop. For obvious reasons, the pandemic’s social-distancing requirements have made this typical set-up impossible. Moreover, the Workshop’s use of Zoom cannot replicate some of the advantages of face-to-face contact, which many have been pointed out.
Nevertheless, Zoom has opened up possibilities that could not be achieved in the typical set-up. For example, Zoom has allowed participants to attend from anywhere in the world, at a scale that would be impossible to replicate at many law schools. As a result, the Workshop has approximately 226 registered participants and typically 75-to-125 active participants for each session. Unlike the audience at a typical law school workshop, the Workshop participants are not all from the same institution. Indeed, although the Workshop is limited to law professors, the moderators have permitted a few nonacademics to participate, which has enhanced the already great discussions. One participant and presenter has been Chief Judge Lee H. Rosenthal of the Southern District of Texas, a former chair of both the Standing Committee on Rules of Practice and Procedure and the Advisory Committee on the Federal Rules of Civil Procedure.
The civil procedure scholarly community is a particularly friendly and generous one, which has made it easy for participants to meaningfully interact with each other without any fear of judgment. Indeed, one unintended feature I have enjoyed is participants, completely unprompted, acknowledging and engaging with the scholarly work of other Workshop participants. I take these exchanges as proof that scholarship does, in fact, get read!
Zoom also allows for different interactions among participants that would be hard to replicate in the typical law school workshop. One successful feature is the “chat” function, which allows participants to type questions or comments for all participants to read and respond to, supplementing points being made by the speaker or the participants. Based on my own observations, the “chat” questions have allowed participants who would normally hesitate to speak at a typical workshop to make their thoughts heard. The moderators have become adept at integrating chat questions into the queue of live questions, resulting in a great mix of questions that could not be easily created in the typical law school workshop. As an added bonus participants can download the “chat” to preserve not only all of the insightful questions asked, but the comments, links, citations, and other ideas that did not require a response from the presenter.
Zoom’s “chat” function also serves an important community-building role. One downside to the typical law school workshop is that it prevents participants from socializing, as attention is focused solely on the presenter. “Chat” does allow participants to send private messages to specific participants, allowing me, for example, to say a quick hello to colleagues I have not interacted with in years. It is the equivalent of passing a note during class, although (I hope) far less rude. In addition, the “Brady Bunch” layout of the speakers and participants makes it easier to see colleagues and feel less alone. Indeed, that names are published under everyone’s talking head makes it easier to follow up with participants after each session, something that can be a bit of a challenge in the real world when name tags are unavailable or illegible.
Finally, I want to point out a small but important feature of the Workshop. The moderators make a point of staying after the “official” end of each session to allow participants to continue the conversation with the presenter. This allows those participants who are particularly interested in the topic to have a more unstructured back-and-forth with the presenter. I have stayed for at least one of these sessions and they have been a lot of fun, mimicking at times a boisterous lunch with a small group of friends.
This pandemic has not created many things I have liked lots, but I have certainly enjoyed the Unavailability Workshop. I hope that it does not end with the pandemic and that it inspires other ways of bringing civil procedure enthusiasts together.