Ronen Avraham, William Hubbard & Itay E. Lipschits, Procedural Flexibility in Three Dimensions
(2018), available at SSRN
A burgeoning procedural literature explores the power of parties to alter the procedural entitlements of the civil-justice system by means of contractual agreement and the limits of that power. The most dramatic example of such bargaining is the agreement to arbitrate, although bargaining also can occur within the context of a civil lawsuit. As Ronen Avraham, William Hubbard, and Itay Lipschits argue in a fascinating new paper, this literature has focused almost exclusively on a single question: which procedures are subject to contractual negotiation and which are not? No one believes that the parties can by contract agree to let the judge flip a coin to determine the winner, but most scholars believe that parties can contract for fewer depositions or requests for production. The debate has centered on distinguishing “core” procedural rights that are not subject to negotiation from non-“core” rights that can be bargained away.
While largely accepting that distinction, the authors challenge extant efforts to establish the limits of procedural flexibility by means of this “core” metric. They make two critical points. First, the distinction between the core that is non-negotiable and the non-core procedural rights subject to horse-trading is slippery at best. There is widespread agreement that core rights are those whose alteration through party negotiation might impair the interests of third parties, might impose additional burdens on the court, or might impinge on reasoned judicial decision-making. The parties’ inability to contract for a coin flip by the judge falls within this last category. But the sacrifice of non-core rights (say, bargaining away the right to take depositions) can affect the information on which the judge’s decision is based and thus deflate the quality and accuracy of judicial decision-making. Even assuming that lines can be drawn, the authors demonstrate that many “core” rights, which should in theory apply uniformly in all cases, are subject to great variability and flexibility in practice, with different judges (and sometimes even the same judge) adopting different procedures in different cases to reason their way to the result.
The second criticism — and the paper’s critical insight — is the all-or-nothing nature of the distinction.
On the standard scholarly account, any right within the core applies uniformly in all civil cases; any right outside the core is always subject to negotiation. Avraham, Hubbard, and Lipschits argue that this rigidity fails to recognize two additional dimensions along which cases can be procedurally flexible. One dimension is the nature of the lawsuit — perhaps the core is large in cases of significant social or legal import and small in cases the authors call “routine” (for the most part, cases presenting only factual disputes whose resolution matters only to the parties themselves). The parties should be unable to bargain away most rights in non-routine cases; even a bargain to limit the number of depositions may be off limits if it unduly affects the quality of information available to the judge making a decision likely to have broad precedential effect. Conversely, when the outcome of a case has no effect beyond the parties to the dispute, they should be able to structure the dispute-resolution process in almost any way they wish.
The other dimension that should bear on the question of procedural flexibility is methods or means. Here the authors launch their most provocative claim: that we should create markets in procedural entitlements. As the authors correctly point out, all the literature on the limits of procedural flexibility through contractual modification assumes that the negotiation occurs only between the parties to the suit: if the defendant wants to take more (or fewer) depositions, he must bargain with the plaintiff to make that deal. “Why?” the authors ask. Creating a secondary market in freely tradable procedural entitlements allows parties to realize some of the value of their claims or defenses even when they lose. Under Federal Rule of Civil Procedure 30(a)(2)(A)(i), every party is entitled to take ten depositions; if I need an extra five depositions, why can’t I buy them from a litigant in another case, who intends to use only five of the allotted ten? Under Federal Rule of Appellate Procedure 32(a)(7)(B)(i), a principal brief may contain no more than 13,000 words; if I need an extra 5,000 words to make my argument on appeal, why can’t I get them from a vendor who has bought up the word allotments from parties who are more parsimonious with language than I am?
The authors suggest two principal ways through which a market in freely tradable procedural opportunities might be created. The first is a cap-and-trade system, akin to pollution-control regimes, in which a central decision-maker (Congress? The Supreme Court? The Administrative Office of U.S. Courts?) sets a cap on the amount of procedural entitlement available for purchase, then allows the entitlement holders to reap the value of the entitlement by selling it to others. The second is a government auction, akin to the government’s allocation of broadband spectrum, in which the government sells entitlements either to litigants or to vendors with whom litigants can then deal. The authors propose that the realized funds from the second approach be dedicated to improving the justice system and providing legal services to the underrepresented.
Framing the “procedure as contract” debate along these three dimensions — “which procedures,” “which cases,” and “which type of flexibility” — raises numerous implementation difficulties that the authors seek to address. On the second question (“which cases”), the authors state — somewhat controversially in my judgment — that ninety-nine percent of all cases are “routine,” and thus subject to broad-based negotiation about the shape of the procedural forms that will resolve the claims and defenses. They admit that a judge may need to determine whether a lawsuit is routine early in the case, and that the judge might be wrong. But they argue that default rules (for instance, class actions and multidistrict litigation proceedings are never routine) and other markers (for instance, the appearance of intervenors or amici make the case not routine) will provide reliable guides in most instances.
The authors spend more time sorting out theoretical and implemental issues for the headline-grabbing third question (“which type of flexibility”). They recognize that a cap-and-trade approach creates problems. Setting the cap at the right level is one issue: how many depositions and how many words, in total, should the civil-justice system countenance? Providing the entitlement to the right people is another. If entitlements are allocated on the basis of party status, the system creates an incentive for people to flood the courts with lawsuits whose sole purpose is to market litigation rights. But other methods of distributing entitlements, such as giving each citizen an annual or lifetime allotment of depositions, seem impractical.
The authors find the auction method more promising, although the intervention of major players — think private-equity firms that snarf up all the depositions for the year — may be an unappealing prospect for some. But the authors argue that these proposals will be allocatively efficient and will reduce the negative externalities associated with litigation, just as cap-and-trade systems have markedly decreased the externalities from pollution. As a distributional matter, permitting procedural trading will not favor the rich any more than the present system, in which litigants already get only as much justice as they can afford to purchase. Of course, cap-and-trade or auction markets in procedural entitlements are subject to the charge that they commodify justice, to which the authors respond: That’s right, and if you can’t abide that fact, then these proposals are not for you. But the authors do not close on a take-it-or-leave-it note. They show how market mechanisms may enhance (or least not retard) the quality of dispute resolution, aid in norm creation, and enhance democracy. In short, there is something to like about this proposal even if you hold a normative rather than economic perspective on procedural rights.
I was fortunate to obtain a very preliminary draft of this paper, and I recognize that the authors’ thoughts may evolve as they work through the details of their proposals. Some of their claims about the scope or operation of procedural rules are broad and lack the nuance that later footnotes will presumably provide. But quibbles about the description of present doctrine are beside the point in an article whose goal — successfully accomplished, in my judgment — is to get all of us to think outside of the usual boxes in the procedure-as-contract debate. Its creative genius is to show procedural entitlements in an entirely new light — not as transaction costs sullenly tolerated only to the extent that they cut error costs at the margin by improving accuracy, but also as a source of positive value for those who hold procedural entitlements.
The exact relationship among the three modes of flexibility is unclear in the present draft. The authors do not state definitively whether a market in procedural rights should exist only in “routine” cases in which party bargaining over procedural form has the greatest latitude. Assuming a functional market in procedural entitlements, is there any reason why parties in a complex and socially important class action should get only the entitlements that the judge permits, while parties in routine litigation can purchase greater quantities of entitlements? The authors do not discuss how a market in entitlements fits with a large unchangeable core of entitlements in non-routine cases, nor the exact content of the core in routine and non-routine cases. It is hard to see how robust this market in entitlements will be, at least in the cases that matter.
The authors show some sensitivity to the ways in which the exercise of procedural rights can harm third persons and seem to accept tacitly the premise that the scope and extent of procedural opportunities can affect the outcomes that parties can expect. Whether in this paper or another, they must better sort out whether a market in entitlements might help well-financed parties engage in scorched-earth tactics to avoid liability. At one point they suggest that if a party buys 10,000 more words for itself, it might be required to purchase the same number for its opponent. But it remains unclear whether there should be a more general hold-harmless rule to prevent the imposition of costs on opposing parties and third persons.
The effect of this system on the litigants also deserves further reflection. In some cases, the ability to purchase additional procedural opportunities might enhance agency costs, whether they arise from an hourly-fee lawyer seeking to squeeze out more fees from the lawsuit or a contingency-fee lawyer fronting the purchase price and settling the case on the cheap to ensure recovery of the additional cost.
The choice of method to market procedural entitlements also presents an important distributional question for which there is no definite answer. Cap-and-trade gives the value of the entitlements to their holders (whether they be the parties or the citizenry as a whole). Auction gives the value to the government, which created the entitlements in the first instance. Unless the bidders at auction are limited to present litigants, however, it is likely that a sizable chunk of that value will fall to highly capitalized jobbers who will buy up the entitlements and then sell them off at a profit.
Commodifying procedural entitlements also might have a disheartening side effect: skewing procedural reform. In some instances, commodification will make reform harder, because those who hold present entitlements have an incentive to oppose substantial reform. Say, for instance, a cheap and harmless truth serum threatens to make depositions conducted by lawyers obsolete. Holders of deposition entitlements would have a strong reason to oppose the switch to the serum. (Granted, there might be other reasons to oppose the use of truth serums, but we can already imagine the slick advertising campaigns that entitlement-holding hedge funds will run to exploit those reasons and scare people into opposing reform.) In other ways, commodification might spur useless reform, as people seeking to profit from new forms of entitlements that add little social value to judicial decision-making lobby to enact these forms.
Many of the concerns that the authors and I have identified are trained specifically on the third question of appropriate types of procedural flexibility and the authors’ answer of markets in procedure. The authors acknowledge that their proposal is “to say the least … implausible, and in any event well outside the realm of existing law.” In the rush to talk about markets in procedure that this paper will likely generate, it is important to bear in mind the broader frame of procedural flexibility within which this proposal arose. The authors’ second point — that the breadth of the parties’ right to negotiate procedural forms should depend on the nature of the case — is an insight whose significance does not hinge on the merits of establishing a secondary market in procedural entitlements.
The third question is valuable even if a market-based solution is impractical. Establishing markets in procedure is a logical endpoint of permitting parties to negotiate over the procedural forms to resolve disputes. If creating such markets seems a bridge too far, then perhaps the entire movement toward contract-based procedure is fundamentally flawed. If so, that realization is only a first step. The litigation system operates in a competitive environment. If potential litigants are voting with their feet by moving away from judicially provided procedure toward party-agreed procedure, the litigation system must reform or die.
Given the practical impediments, markets in procedure may not prove the way to reinvigorate the litigation system in the marketplace of dispute resolution. But out-of-the-box creativity, what Avraham, Hubbard, and Lipschits offer here, is needed if a solution is to be found.
The critical scholarly narrative surrounding civil rights litigation is that the Supreme Court in the past decade has expanded the defense of qualified immunity, particularly through a series of per curiam reversals of qualified-immunity denials, with the Justices impatiently demanding that lower courts properly (and expansively) approach immunity. The effect has been to slam the courthouse doors on injured plaintiffs. Expansive qualified immunity insulates all but the “plainly incompetent” and those who knowingly violate the law. It shields officers against liability except for the rare case in which the officer violated a constitutional right that was “clearly established” by binding precedent finding a constitutional violation on factually similar conduct in factually similar circumstances, or the rarer case in which the violation was so obvious in light of general constitutional principles (such as tying a prisoner to a hitching post in the sun for seven hours). And the Court moved the doctrine in this direction for unabashed policy reasons—to insulate law-enforcement and other public officials from the cost, burden, distraction, and expense of litigation, discovery, and trial, by raising the bar for liability and requiring resolution of immunity early in litigation.
In How Qualified Immunity Fails, Joanna Schwartz’s empirical study shows both the critical narrative and the Court’s purported goals to be empirically unsupportable.
Schwartz reviewed dockets for cases brought by civilians alleging constitutional violations by state and local law-enforcement employees and agencies. The study examined cases filed in 2011 and 2012 in five federal districts in five circuits (Southern District of Texas, Middle District of Florida, Northern District of Ohio, Eastern District of Pennsylvania, and Northern District of California). The study yielded 1,183 cases; qualified immunity could be raised as a defense in 979 of them because the case included claims against an individual officer for money damages. In all but three cases, qualified immunity was raised only on summary judgment, only on a motion to dismiss on the pleadings, or at both stages (it was raised only at trial or appeal in the other cases). Schwartz identified 440 motions (to dismiss on the pleadings or summary judgment) in those cases; qualified immunity was denied in the plurality (139) and granted in full or in part in a smaller number (79). In fact, courts were more likely to grant dismissal or summary judgment in whole or in part on other grounds or without mentioning qualified immunity. Moreover, a grant of qualified immunity need not end the litigation or that officer’s role in the litigation; other claims may remain in the case for which qualified immunity is unavailable (claims for non-monetary relief, claims against government entities, and claims under state law). Schwartz identified only 38 cases in which qualified immunity ended the litigation—27 on summary judgment, 7 on pleadings dismissal, and 4 on appeal.
These findings suggest that qualified immunity does not slam the courthouse doors as critics fear. To the extent civil rights and constitutional claims fail, they fail for reasons other than qualified immunity. The plaintiff failed to plead facts showing a plausible claim for a constitutional violation. Or he failed to produce evidence showing a genuine dispute of material fact. For Bivens claims against federal officials (which were not included in this study, but are the subject of an ongoing study by a group of scholars), the hurdle is the narrowing of the Bivens cause of action itself. Or claims fail because the scope of constitutional rights and the standards for establishing a violation have narrowed, leaving law-enforcement officials more constitutional leeway to act.
At the same time, Schwartz’s findings show that qualified immunity does not achieve its policy goals of protecting government officials from the cost, burden, expense, and distraction of discovery and litigation. A finding of qualified immunity does not get the individual officer out of litigation or discovery and its associated burdens. Claims may remain seeking equitable relief for the constitutional violation or seeking remedies under state law. Claims may remain against the municipality; although the officer no longer remains a party, he may remain part of the litigation and the discovery process as a witness and as the person whose conduct is the linchpin for the entity’s liability. And the grant of qualified immunity likely had to await summary judgment, which must await some discovery, meaning the officer had to endure some of the burdens, costs, and distractions that immunity is designed to limit.
In establishing the modern approach to qualified immunity, the Supreme Court acknowledged that the doctrinal balance might be reconsidered if the realities of constitutional litigation undermine the Court’s assumptions about the purposes and benefits of immunity. Schwartz insists that her findings have undermined those assumptions, revealing the doctrine as “an exercise in futility.” The answer, however, is not to make qualified immunity stronger. She doubts the doctrine could be stronger than it is, certainly in the Supreme Court. And even expansive qualified immunity is not tailored to its intended role, because immunity cannot be adequately resolved before discovery and summary judgment and because plaintiffs can avoid the defense by including claims to which immunity does not apply.
Instead, Schwartz’s empirical demonstration of the emptiness of qualified immunity suggests the Court should eliminate or redefine the defense. It could rely on other mechanisms (summary judgment, motions to dismiss, and the limits of substantive constitutional rights) to protect officers against non-meritorious claims. It could reinstate the subjective prong to qualified immunity, denying immunity to officers who act in knowing and subjective bad faith or with knowledge of the unconstitutionality of their behavior. It could eliminate immediate appeal of immunity denials under the collateral order doctrine. At a minimum, it could move the “clearly established” prong away from case law and the demand for on-point precedent to a focus on a broader sense of whether the officer’s conduct was “clearly unconstitutional,” whether based on case law or general constitutional principles.
This is the second article in which Schwartz has used empirical study to show that the Court’s assumptions around qualified immunity are flawed. She previously showed that qualified immunity fails to serve an alternative purpose of avoiding over-deterring law enforcement for fear of personal liability; her study of indemnification agreements revealed that officers pay even a small portion of any judgment in only a miniscule percentage of cases. With this second paper, Schwartz has completed the task of showing that the Emperor of Qualified Immunity has no clothes.
Daniel Epps & William Ortman, The Lottery Docket
, 116 Mich. L. Rev.
(forthcoming 2018), available at SSRN
Every year thousands of parties ask the Supreme Court to hear their cases. Every year the Court disappoints the vast majority of them, selecting only about one percent of cert petitions. And every year scholars decry the Court’s choices—arguing that the Justices have taken too few cases and not even the most important ones at that. One can imagine the Justices turning to each other at conference and lamenting, “Everyone’s a critic!” But have we been raising the right sorts of criticisms? The Lottery Docket, by Daniel Epps and William Ortman, suggests not so much.
In this thoughtful piece, Epps and Ortman challenge both convention and conventional wisdom around case selection at the Court. The Justices fail to take the right cases not because (or not just because) they incorrectly identify which ones are important, as so much scholarship has stated, but precisely because they miss ones that are unimportant. By selecting and then deciding cases based on such factors as whether a given issue has resulted in a circuit split and attracted sufficient attention from amici, the Court has a distorted view of the legal landscape and thus how its decisions might affect parties and the courts below. Epps and Ortman’s elegant solution to the problem is to supplement the Court’s current docket with some randomly drawn cases from the courts of appeals—a “lottery docket.”
Epps and Ortman begin with a brief history of the Supreme Court’s agenda, gently reminding readers that for the first hundred years of its life, the Court had no control over the cases it would hear. Beginning in the late 1800s, Congress afforded the Court some discretionary review (largely in response to the Court’s substantial caseload). Congress continued to expand the Court’s discretionary review over the next century, culminating in the 1988 Judiciary Act, which essentially did away with the Court’s mandatory appellate jurisdiction. As a result of these various acts, the Justices are now left to their own devices to select which appeals to review out of the 7000-8000 cases that seek cert every year.
Epps and Ortman next turn to how the Justices go about selecting cases to review. There are numerous factors that go into deciding what to decide, as H.W. Perry’s seminal work on the subject demonstrated. Epps and Ortman focus on the factor that seems predominant these days: whether the question raised by the appeal has caused a circuit split. Having this drive the selection process creates a couple critical problems. The first is informational—the Justices end up with a distorted sense of how the law functions “on the ground” and therefore how its decisions might affect litigants and the lower courts deciding their cases. The second implicates accountability—lower-court judges know when deciding run-of-the-mill cases that they will almost certainly be immune from review (and may even take steps when writing their opinions to ensure such immunity).
Having convincingly identified the problems with the current cert process, Epps and Ortman propose a neat solution to it: the creation of a lottery docket. This would supplement the certiorari docket by giving the Court appellate jurisdiction over a small number of cases—possibly twenty to forty—selected at random from the final decisions of the circuit courts. The Lottery Docket then devotes some space to how the proposal could be implemented. Questions include whether all cases from the courts of appeals would be automatically entered into the pool or if there would be an opt-in mechanism, and whether some appeals would be weighted or all would receive an equal chance at selection. Whatever the particulars, the thrust is the same—the Court would be exposed to a much wider swath of cases than it currently sees, thus helping to mitigate the informational and accountability problems identified above.
Stepping back, The Lottery Docket is a terrific new piece of scholarship. It persuasively identifies a set of problems afflicting the Court—and the federal judiciary as a whole—and offers a thoughtful response to those pathologies. One can raise questions about the proposal—for example, will having the Court take even forty standard cases really improve accountability given that thousands of appeals will still retain the last word (a point that appellate judges will know)? But part of what makes The Lottery Docket a pleasure to engage with is that Epps and Ortman have anticipated most of these questions and have fair responses at the ready.
Stepping back once more, it is exciting to see scholarship in the growing field of judicial administration—what we might want to call the “new legal process.” In the legal academy, much of our scholarship and teaching centers around particular substantive areas of law—constitutional law, civil procedure, administrative law, and the like. Yet it remains critical to study our legal institutions and the actors who populate them. As legal scholars, we all may be critics in our own way, but it is important to apply some of our critical thinking to understanding, and improving, our court system. The Lottery Docket is a great example of exciting new scholarship in this field and we should look forward to what its authors, and other students of the new legal process school, will offer in the future.
Robin Effron, Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion
, 98 B.U. L. Rev.
(forthcoming 2018), available at SSRN
Over the past few decades, two narratives have emerged about who controls civil procedure. One describes the rise of private procedural ordering, a phenomenon that encompasses a number of different practices whereby parties dictate the procedural rules they will face in potential or ongoing dispute resolution. Arbitration clauses are the most extreme example, where parties opt out of court procedures altogether, but there has also been extensive commentary about parties’ abilities to contract for particular procedural rules or otherwise customize the procedure governing litigation. The rise of private procedural ordering, according to some accounts, is overtaking procedure dictated by existing laws, such as the Federal Rules of Civil Procedure. The second narrative is about the rising prominence of the judge in “managing” litigation with increasing amounts of judicial discretion. To the extent that these two narratives intersect, it might seem that private procedural ordering has nothing to do with judicial discretion other than obliterating it.
Robin Effron’s new article tackles the important task of identifying and examining the connection between these two narratives. By looking at them together, Effron illuminates age-old questions of who controls litigation and arrives at a nuanced and thoughtful answer: Rather than one always overtaking the other, private procedural ordering and judicial discretion alternate between being cozy and uncomfortable bedfellows. These dynamics can result in uneasy cooperation between parties and judges, providing some solutions to difficult problems in modern litigation. But they offer little comfort with regard to many concerns about either private procedural ordering or judicial discretion.
To showcase the interaction between judicial discretion and private procedural ordering, Effron plumbs three instances in which “party agreement is already baked into some of our existing procedural tools.” Learning from these investigations, Effron rejects both the common “elevation theory” that private procedural ordering is simply overtaking judicial discretion and the opposite proposition that the law and judicial discretion stand above party power in a rigid hierarchy. Instead, she proposes a two-pronged thesis that consists of the “co-management” and “co-interpretive” theories, which, together, describe the uneven and unstable power-sharing between parties and judges in procedure-making. Effron’s theories are descriptively satisfying in many contexts, even though they do not purport to address any normative concerns about either private procedural ordering or managerial judging.
Effron wields three examples to illustrate these arrangements: civil discovery, settlement, and enforcement of forum selection clauses.
In the realm of discovery, the Federal Rules “deploy judicial discretion and party agreement as complementary tools.” The Rules invite parties to customize discovery for each case by setting default rules from which parties are free to depart by agreement, or, failing that, by leave of the court. Judicial discretion—by means of oversight of the parties’ negotiations and agreements about discovery—cooperates fairly successfully with private procedural ordering.
In the area of settlement, the two forces coexist less stably. Most settlement is completely unregulated and left to private ordering. In the class action context, however, the Rules instruct courts to intervene. But because judges rarely examine other kinds of contracts for fairness, adequacy, or reasonableness, it is perhaps unsurprising that they do so timidly when reviewing settlement agreements. This meek use of judicial discretion as to private procedural ordering is by design: the standard for reviewing settlements is discretionary to accommodate an area (settlement) that is traditionally dominated by private procedural ordering. Another example of the push-and-pull of these two phenomena.
The final example is an area in which the Supreme Court has made private procedural ordering “open[ly] hostil[e]” to judicial discretion: the enforcement of forum selection clauses. This and Effron’s prior writings show her unmasked hostility to the Supreme Court’s decision in Atlantic Marine. The Court instructed lower courts to abandon the “normal practice” under 28 U.S.C. § 1404(a) of considering a variety of private-interest factors in determining whether enforcing a forum selection clause would promote the interests of justice. Instead, the Court declared, courts should weigh all private-interest factors in favor of the preselected forum. In Effron’s words, “Atlantic Marine thus swept away any judicial discretion to consider private interest factors under § 1404(a) in forum-selection clause cases” and “seriously undermined a judge’s ability to exercise much discretion in considering the public interest factors.” The result is a “multifactor test with one factor, [a] balancing test with no balance, a discretionary standard with but one permissible outcome.”
While this is an example of private ordering eclipsing judicial discretion, Effron argues that the Court did not have to decide this issue in terms of the relationship between those two phenomena. It could have resolved the question presented (what procedural mechanism should be used to dismiss or transfer a case brought in a forum other than the one designated by a valid forum selection clause) in a number of other ways. The Court chose to hold that the forum selection clause obliterates § 1404(a) discretion. The enforcement of forum selection clauses thus demonstrates the most uncomfortable coexistence—or lack thereof—of judicial discretion and private procedural ordering.
It appears that private procedural ordering assumes an increasingly privileged role in federal civil procedure, while the scope of procedural judicial discretion seems to be narrowing. But Effron urges us to question the standard explanations.
She rejects the conventional wisdom, or “elevation theory,” that “rule makers and judges have decided to prize party preference over other procedural values,” including judicial discretion. In the first two examples, private procedural ordering is not totally “dominant.” On the other hand, Effron disagrees with Scott Dodson’s recent work arguing that private procedural ordering is completely subordinate to law and judicial discretion. As evidence, Effron points to the easy enforceability of arbitration agreements, “a cheap ticket to the land of party dominance.” Arbitration is an efficient and common way for parties to obtain privatized (even if not bespoke) procedure. She could also note that Atlantic Marine’s strict attitude toward enforcing forum selection clauses further demonstrates the supremacy of party control in certain contexts. Thus, “[j]udicial discretion cannot be fairly characterized as resting solidly atop party choice.”
The point is that the relationship is more complex, as the 2015 discovery amendments demonstrate. On one hand, the amendments elevate judicial discretion—by directing judges to police party behavior more actively. On the other hand, the amendments ratchet up judicial oversight “to limit the scope of discretion and enable continued private procedural ordering.” Thus it’s not clear whether judicial discretion or private procedural ordering is being prioritized.
These complexities drive Effron to seek other ways to understand the increased prominence of private procedural ordering and its relationship to judicial discretion. She finds two frameworks: the co-management theory and the co-interpretation theory.
The core of the co-management thesis is that once “litigation became something that needed to be managed… judges and parties each assumed increasingly prominent roles in such management.” Civil discovery again illustrates the point: the rules direct co-management of discovery, starting with party negotiation and agreement, but with the judge as important overseer. Class action settlement likewise begins with party negotiation and ends with judicial oversight, but oversight that defers to party agreement. Effron admits that the enforcement of forum selection clauses may seem like proof of the elevation thesis rather than co-management, but she highlights that “§ 1404(a) also contains a great example of the recent codification of the co-management theory” because in 2011, Congress amended § 1404(a) to permit transfer “to any district or division to which all parties have consented” (emphasis added). Thus, “the text of § 1404(a) now includes an express invitation for parties to use private procedural ordering to choose a venue during the life of the lawsuit,” right alongside the statute’s direction to the court to exercise judicial discretion.
The co-management thesis is descriptive and does not allay the normative concerns about judicial discretion, its waning influence, or the increasing prominence of private procedural ordering. Co-management creates additional “troubling conflicts” that perhaps can be likened to the problems of fighting a war “by committee.” For example, co-management might dilute the ability of either the parties or the judge to completely control procedural decisions without providing a better replacement. The theory also operates exclusively within federal litigation; it does nothing to account for the popularity of arbitration.
The “co-interpretation theory,” which Effron admits is “more controversial,” posits that “in a few procedural areas”—such as determining what it means for discovery to be “relevant” or “proportional to the needs of the case” or whether a settlement is “fair, reasonable, and adequate”—“litigants have assumed some interpretive authority over procedural rules,” either through delegation or deference by the judge. Effron argues that the enforcement of forum selection clauses may be an example of co-interpretation “gone too far,” resulting in near-total deference to contractual venue choice. She seems understandably concerned about the implications of co-interpretation and argues that “to the extent that it is a normatively desirable practice at all, [co-interpretation] should reflect a dynamic interplay between judge and parties”—not extreme deference, which Atlantic Marine seems to introduce.
One take-away from co-management and co-interpretation is that they are anti-adversarial elements in U.S. litigation culture, which has always distinguished itself as adversarial and not “inquisitorial” (the system in most European countries). The cooperation inherent in co-management and co-interpretation reveals a litigation process that may be a path forward in modern litigation that eschews the ultimate adversarial system (the trial), but also doesn’t replace it with an inquisitorial system foreign to our litigation culture.
Effron’s cooperation-based theories offer much food for thought. While not posed as a “theory of everything,” the idea of procedure as a cooperative endeavor—between parties and among parties and judge—feels both right and somewhat radical. Judges and litigants are in the litigation boat together; who steers the ship—and who should steer it—is not always clear. The infrastructure that supports this cooperation comes from all procedural rule-makers: from the Federal Rules (2015 discovery amendments), Congress (amendments to § 1404(a)), and the Supreme Court (Atlantic Marine). We should be on the lookout for more examples of cooperation and we should be wary of its potentially troubling aspects.
It is also worth considering how these dynamics interact with other recent procedural developments. Is a cooperative model a better option for the shifting nature of federal dockets, in light of the rise of multidistrict litigation and the increasing barriers to access to litigation? Does it facilitate ad hoc procedural adjustments to accommodate litigation when the ordinary rules of civil procedure do not seem to be working? Will courts themselves take a wrecking ball to judicial discretion, as by eagerly enforcing arbitration and forum selection clauses? These areas for future research are rife with important questions. Effron has ably pushed us forward on this journey.
Cite as: Pamela Bookman, Cooperative Procedure-Making
(January 23, 2018) (reviewing Robin Effron, Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion
, 98 B.U. L. Rev.
(forthcoming 2018), available at SSRN), https://courtslaw.jotwell.com/cooperative-procedure-making/
Courts, practitioners, and scholars have recently focused on discovery costs in civil litigation. This produced recent amendments to the Federal Rules of Civil Procedure emphasizing that discovery requests be “proportional” rather than excessive. But this focus has ignored the fact that the information sought in discovery about the defendant’s liability is often consciously created by the defendant’s compliance measures before any litigation actually occurs (a point I am examining in depth in a current project). More importantly, potential defendants may create such information with an eye to ensuring that uncovering it in litigation or through similar regulatory intervention is costly or impossible. Accordingly, reducing the “costs” of discovery by limiting discovery to “proportional” requests may have the perverse consequence of making it even less likely that such information is ever uncovered, giving defendants greater incentive not to comply with the law in the first place.
This perverse consequence of reducing discovery costs is made vivid in Roy Shapira and Luigi Zingales’s new article examining DuPont’s treatment of C8, a chemical used in the production of Teflon-containing products. As Shapira and Zingales detail, DuPont learned in 1984 (and even earlier) that C8 posed potentially serious health risks because of the chemical’s bio-accumulative and bio-resistant properties. Among other things, C8 may cause birth defects in an infant’s eyes and nostrils, a fact discovered when DuPont examined the children of its employees. Nevertheless, DuPont continued to use C8, and even doubled its C8 emissions, for nearly three decades after learning about these risks, stopping its use in 2013.
Although this history is valuable, Zingales and Shapira go further and examine an interesting, and generally neglected, question. Did DuPont continue to use C8 because of ignorance and bad governance? Or, more problematically, because they considered it the rational thing to do? Here Shapira and Zingales use contemporaneous internal company documents, reasonable assumptions, and economic tools to conclude that DuPont chose to use C8 even though it was not socially optimal. The internal documents show that DuPont was well aware of its liability risk in using C8. But Shapira and Zingales surmise that the use of C8 remained rational for DuPont so long as the chance of being detected (and thus forced to pay heavy sanctions) was only a nineteen percent chance or lower. Continuing use of C8 unabated “was a case of ‘rational wrongdoing’: a decision that maximizes shareholder value ex ante, even though it is socially inefficient.”
What is interesting about this exercise from a civil-procedure perspective is the source of the internal documents Shapira and Zingales use in their analysis. The documents were produced during the discovery in the multiple suits filed against DuPont starting in the late 1990s. Shapira and Zingales argue that the “discovery process … provided a unique glimpse into the inner workings of a large company like DuPont.” Indeed, they later note that “[t]he main investigation of the health effects of C8 was made possible by the … initial litigation and the documents discovered during subsequent litigations.”
Compare this acknowledgement with the authors’ diagnosis of the failure of enforcement—“the main way corporations succeed in reducing their expected liability is by suppressing and distorting information.” The civil litigation and liability regime “as currently designed … creates bad incentives ex ante. Companies face incentives to suppress potentially damaging information, so as to keep the plaintiff lawyers away.” The general counsel of DuPont, for example, led workshops “on what not to document and share in regards to C8.” And those incentives to suppress information allowed DuPont to consciously emit C8 despite the social harm such emissions would cause, expecting this use would not be discovered. It is a small miracle that those internal documents were found in the first place. The current trend toward making discovery less costly for defendants only exacerbates those incentives to make such information very “costly” to discover in the first place.
Shapira and Zingales’s work is a sobering reminder that any discussion of discovery reform must acknowledge the regulatory role tort liability, through civil litigation, plays. They confirm that companies such as DuPont pay a great deal of attention ex ante to how potential litigation will affect their bottom line. Indeed, companies like DuPont may engage in “rational wrongdoing” based on predictions of how well litigation and other regulatory measures will be able to police their actions. Thus, while discovery is costly, courts and rulemakers cannot lose sight of its enormous regulatory benefits. Indeed, without discovery, this story could not have been told.
Brooke D. Coleman, A Legal Fempire?: Women in Complex Civil Litigation
, 93 Ind. L.J.
(forthcoming), available at SSRN
If ever there was a right time to discuss gender inequity in the legal profession, it is now. With a daily deluge of examples of how women are objectified, degraded, and undervalued in the workplace, Brooke Coleman’s A Legal Fempire?: Women in Complex Civil Litigation comes at a perfect time. It is a welcome and timely exposé of how a slice of the legal profession—the Multi-District Litigation (MDL) world—illustrates the acute and ongoing systemic problem of gender inequity and the modest progress that has been made over time to address it. Coleman does an excellent job of shining a light on this serious contemporary issue without sugarcoating or whitewashing it, while simultaneously crediting the Gender Bias Task Force movement for its historical contributions and making proposals for going forward.
Coleman’s article was an easy pick as a work I loved reading and one I highly recommend to law teachers, law students, and the legal profession in general. Her work reaches into many corners—complex litigation, feminism, employment law, ethics, social science—and is accessible in its content and tenor. She navigates the topic of gender inequity in the legal profession with both sensitivity and unapologetic dissatisfaction with the current state of affairs. In sum, Coleman’s article should be required reading for 1Ls today, as a part of the prescription for attacking gender inequity in the legal profession.
Coleman’s article mines data collected from Gender Bias Task Forces, which were created in the 1980s by the National Organization for Women and the National Association of Women Judges to examine gender discrimination in the legal profession. Coleman takes a sample from more than forty available studies, choosing a slice that cuts across state and federal courts, representing seven states and two federal circuits. My only critique is that I wish the article could have covered even more.
To Coleman’s credit, she recognizes upfront that her work focuses on an elite, privileged few and that the data and analysis upon which she relies is in many ways under-inclusive. She concedes that much of this limitation was by design—with task-force leaders choosing essentialism over recognizing intersectionality—and that her work, while valuable, perpetuates this flaw to some degree. With this insightful confession behind her, the article goes on to make an invaluable contribution.
Although the Gender Bias Task Force studies varied in approach and scope, they all spotlighted two attributes in the legal profession: (1) acute female underrepresentation and (2) “rampant sexism.”
Despite an inspiring history of female “firsts,” the Gender Bias Task Forces revealed a significant female gap up to the mid-1990s, when their work primarily ended. Twenty years later, the statistics paint a similarly bleak picture. While women comprise almost half of law students today, women are woefully underrepresented in the most powerful and elite positions of the legal profession. Women make up only a quarter of federal and state judges, and 21% of law firm partners. Those who do make partner earn only 44% of what their male counterparts earn. Female lawyers are also tracked into lower-income practice areas. Although women make up 40% of law professorships, they hold only 28% of deanships. These numbers are even direr for women of color. Although they comprise 20% of the population, they make up only 8% of state and federal judges, less than 3% of all law firm partners, 7% of tenure/tenure-track professorships, and 8% of deanships.
Of course, the numbers tell only one part of the story. Not only is the legal profession dominated by men, it is rife with boorish and sexist conduct toward its female members. The Gender Bias Task Force studies “generally found … women lawyers often suffered gross discrimination, and female parties and staff were regularly mistreated on the basis of gender.” The extent to which this remains the case is unclear. However, if the current #MeToo movement is any indicator of the American workplace climate overall, there is much about which to be concerned. The fact that this movement has spread like wildfire across industries as varied as entertainment, politics, media, and professional athletics suggests that gender discrimination is systemic and endemic.
Coleman does a deft job of recognizing the positive contributions of the Gender Bias Task Force movement, identifying its shortcomings, and building from this base with proposals of her own. She tips her hat to the pioneers of the movement, highlighting their positive recommendations for change, including gender bias and civility educational programs for judges, law students, and lawyers; changes to the rules of professional conduct; recruitment efforts for female lawyers and judges; judicial election and appointment process reforms and training; and standardization of judicial qualifications. Coleman hits the nail on the head, however, in asking where we are twenty years after the efforts of the Task Forces largely subsided. With over half of all law students being female since 1996, what does the legal profession have to show for this equalization?
Coleman cleverly selects the world of complex civil litigation, specifically MDL, to illustrate the ubiquity of gender inequity in the legal profession. This exemplar is a microcosm of the larger endemic problem of discrimination against female lawyers and judges.
Not surprisingly, the history of multi-district litigation is one of gender exclusion with respect to (1) the judges appointed by the Chief Justice to serve on the Judicial Panel on Multidistrict Litigation, (2) the judges chosen by the panel as transferee judges in MDL cases, and (3) the lawyers selected as plaintiffs’ lead counsel in MDL cases. In 1968, the first MDL panel was comprised of seven white men. The first white woman was appointed to the panel in 2000. Slowly, more were added: one in 2004, one in 2010, and then four more by 2014. Over the almost fifty years of the MDL panel’s existence, there have been fifty judges appointed to the panel, only seven of them women. There has never been a woman of color appointed to the panel, although they represent 27% of the federal bench. Today, for the first time in its history, there is a majority of women on the panel, including a female chair. While there has been progress, Coleman rightly concludes that “[t]he lack of racial diversity and the paucity of women on the [MDL panel] is quite discouraging.”
The same is true for the selection of transferee judges. While 33% of active federal district court judges are women, they represent only 25% of transferee judges. Not surprisingly, the lawyers selected by those transferee judges as lead counsel are primarily white men. Women comprised only 16% of the MDL leadership appointments from 2011 to 2015, although that figure has increased to over 27%. Even those women selected for MDL leadership are stratified in lower-level leadership positions.
One of the insidious problems of diversifying multi-district litigation is the pipeline problem. To be considered for the MDL panel and as transferee judges, women must be federal judges. Yet presidents—particularly Republican administrations—have been stingy in appointing women to the bench. Almost 20% of President George H. W. Bush’s judicial appointees were women, while 22% of George W. Bush’s were women. President Bill Clinton was the first president to exceed 20% women with his nominees, at 28%. President Barack Obama appointed more women to the bench during his first five years in office than Presidents Reagan, H.W. Bush, and W. Bush combined; 42% of his nominees in eight years were women. Trump’s legacy has yet to be determined, but Coleman suggests that if his Cabinet appointments are any hint, the number of women nominees will wane.
Not only does Coleman do an excellent job of illustrating the gender disparity in complex civil litigation, she also makes a compelling argument that the disparity should be eradicated. While this would seem to be an obvious normative conclusion, Coleman supports it with four distinct undeniable pillars. First, gender diversity is important because the best decision-making occurs when a group is heterogeneous. This is backed by scientific studies that demonstrate the harms of conformity and lack of dissent. Second, participation by women not only changes outcomes, but improves them. A nice example of this is the corporate literature that reveals a 66% increase in profits for Fortune 500 companies having the highest percentage of females on their boards of directors. Third, gender diversity in complex litigation legitimizes the legal system. Stakeholders’ meaningful participation in the legal system signals fairness in the process, which in turn engenders confidence in the outcomes. Fourth, because the legal system itself has created and perpetuated subordination of women, it has a duty to correct it. This is only fair, especially for an institution that purports to promote justice as its job.
Finally, Coleman builds on the work of her Gender Bias Task Force predecessors with her own prescriptive measures for the future. Coleman gives an appropriate shout-out to the pioneers, contextualizing their contributions and appreciating their progress. After this brush clearing, she sets forth her own proposals.
First and foremost, Coleman contends that it is time to rip off the Band-Aid and “confront base sexism and change social norms.” She sums up what has been dripping out of the news on the daily: “As the events of the past year and the results of the national election demonstrate, there is a foundational sexism and misogyny that underlies our culture.” Coleman’s examples are perfect, showcasing how appearance—including African-American women’s hair, Muslim women’s hijabs, and all women’s bodies—has been used to discredit women in the legal profession. There are no easy answers, but there are many answers: “[a]wareness, education, movements, and overt action by allies,” to name a few.
Second, Coleman emphasizes the importance of retaining and elevating women in the complex-litigation world. To rectify the pipeline problem, law firms must do a better job of hiring, mentoring, and promoting women through the ranks. White women and women of color are leaving law firms in droves because of structural and cultural barriers built into the law firm environment that replicate white male control and success.
Third, Coleman suggests that MDL practices be restructured to address the gender inequity in plaintiffs’ leadership committees and in selection of MDL transferee judges. Coleman recommends that MDL judges move away from using slates of repeat players and instead affirmatively consider diversity in their leadership appointments. She also recommends that MDL panels dole out the opportunity of serving as a transferee judge to rookies, so as to open up the pipeline.
Finally, Coleman closes with the sobering observation that overcoming gender inequity in the legal profession is daunting, but worth it. I wholeheartedly agree, and suggest that we start by reading her important and timely article.
William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens
, 116 Mich. L. Rev.
(forthcoming 2018), available at SSRN
Parsimony is a vital concept in empirical scholarship. It holds that a simple model that explains things is preferable to a more complex model that explains just as much. The ideal model achieves a desired level of explanation with as few predictors and as little complexity as possible. For example, a regression model with three independent variables that explains a given amount of variance is preferable to a regression model with nine independent variables that does not explain more (or not sufficiently more). The key insight is that complexity is not always desirable or always undesirable; it must be justified by the amount of extra explanatory power that it purchases.
The concept of parsimony can help us make sense of the morass that is personal jurisdiction doctrine and scholarship. The Supreme Court continues to provide a fluctuating cast of more or fewer rules and caveats. Personal jurisdiction doctrine is, to a significant degree, the discursive practice of strengthening or adjusting a few core rules (e.g., Shaffer v. Heitner) or expanding, preserving, and creating caveat categories (e.g., Burnham v. Superior Court). Legal scholars debate whether we should account for new phenomena (e.g., Internet commerce) by adjusting existing categories or creating entirely new caveats and tests. The notion of parsimony offers tools to puzzle through such choices. It reminds us that we cannot simply insist that the creation of new doctrinal categories would be a better fit for new realities. Similarly, we cannot reject innovations simply because they would add complexity. Instead, the cost of doctrinal complexity must be justified by the benefit of a sufficiently better normative fit.
William Dodge and Scott Dodson’s forthcoming Personal Jurisdiction and Aliens does just that. It argues for a broadened national-contacts test for alien defendants. Under this test, the alienage status of a defendant breaks the shackles of a state-by-state contacts analysis. Instead, courts would consider the defendant’s contacts with the whole nation for state and federal causes of action in state and federal courts. This doctrinal innovation would add complexity by explicitly bifurcating (to some extent) the personal jurisdiction analysis based on the domestic or alienage status of the defendant. Is this added complexity justified?
Dodge and Dodson begin their answer to that question by relativizing the charge of added complexity. A national-contacts caveat for aliens would not add significant complexity to current doctrine because, though facially neutral, it already treats alien defendants differently from local defendants in important ways. The reasonableness prong of the minimum contacts analysis and the modern articulation of general jurisdiction make it increasingly difficult to establish personal jurisdiction over foreign defendants. Courts in practice rarely use the reasonableness prong of modern minimum contacts to protect domestic defendants. Instead, this prong is mostly reserved to dismiss suits against foreign defendants. Similarly, while general-jurisdiction doctrine does not mention foreign defendants, they are typically not treated as “at home” in any U.S. jurisdiction. General jurisdiction serves as a fallback option for domestic defendants—at least one state will be able to hear a suit involving a domestic defendant. But because foreign defendants are not “at home” in any U.S. jurisdiction, they can do business with many or all U.S. states but still be immune from general jurisdiction in all of them. Unitary personal jurisdiction doctrine thus hides complexity in application—the doctrine already minds differences between domestic and foreign defendants with the net effect that foreign defendants can more easily escape the reach of U.S. courts than domestic defendants.
Beyond explaining that their proposal would not add much complexity, Dodge and Dodson justify any added complexity by arguing that a national-contacts test for alien defendants is a good doctrinal and normative fit. One key notion that animates much of the argument here is that “once [alien defendants’] contacts justify suit somewhere in the United States, they ought not care exactly where.” Foreign defendants typically do not want to be sued in U.S. courts. But if unavoidable, they care far less about whether to incur that burden in Nebraska or South Dakota. If foreign defendants think of the market, the forum, and the burdens as national, then courts do not impose unfairness by using a national test that sums contacts across states. This also avoids the incentives potential foreign defendants have to structure their substantial U.S. business dealings in a diffuse manner spread across numerous states to become immune to suit in all of these states.
Dodge and Dodson contend that a national-contacts test for alien defendants respects the sovereignty interests of each state and the accompanying limitations on the sovereignty of all other states. Treating alien defendants differently from domestic defendants does not upset the implied federal balance among the states. Alien defendants frequently do not have a special relationship with a state that could be impinged upon by the assertion of personal jurisdiction in sister-state courts. Dodge and Dodson further argue that treating alien defendants differently is consistent with recent Supreme Court thinking and would provide a stronger foundation for building broad and stable coalitions on the Court.
They conclude by arguing that existing protections temper the abuse of a national-contacts analysis for alien defendants. Foreign defendants utilize specific-jurisdiction’s reasonableness factors to challenge the exercise of personal jurisdiction based on the unique burdens foreign litigants sometimes face; these factors continue as a safeguard under a national-contacts test. Similarly, federal venue and transfer statutes, as well as forum non conveniens (among other practical tools), can mitigate excessive litigation burdens on alien defendants.
The power of Personal Jurisdiction and Aliens does not derive from complete originality—others have considered ways to incorporate alien defendants into general jurisdiction doctrine, in federal courts, for federal claims, etc. Instead, Dodge and Dodson’s article shines in two ways.
First, it is timely. Many of the Supreme Court’s recent personal-jurisdiction cases have involved foreign defendants, and alien defendants likely will continue to attract significant judicial attention, generating thorny and consequential doctrinal puzzles and confusions. Second, the article is elegant and thorough. Balancing complexity and fit is a delicate exercise. Dodge and Dodson illustrate how to do it well, even though some readers might strike a different balance or would prefer to purchase complexity elsewhere in the personal-jurisdiction landscape.
This article provides a helpful model for a new wave of scholarship just over the horizon that will grapple with the reach and effects of cases like J. McIntyre Machinery v. Nicastro and Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County and propose new and hopefully parsimonious accounts of personal jurisdiction in a changing world.
Alan M. Trammell, Precedent and Preclusion, Notre Dame L. Rev. (forthcoming 2018).
Preclusion and precedent restrict the permissible range of actions in future litigation. Preclusion bars parties from relitigating claims or issues that have already been adjudicated in a prior action in which the litigant was present. Precedent binds all courts and parties within a relevant jurisdiction to a particular rule or holding if the decision emerged from a court with binding authority. Alan Trammell’s new article undertakes a fresh examination of the tension between these two doctrines: why are future parties bound by precedent and stare decisis regardless of their presence in a prior action, when preclusion doctrines demand prior party presence and jealously guard an absent party’s right to a day in court?
Trammell’s take is that preclusion and precedent embody two different theories of due process. Preclusion protects a “participation-oriented theory,” in which courts are focused on guarding a party’s due process right to a “day in court.” Precedent protects an “outcome-oriented theory,” in which due process bolsters decisional accuracy and protects litigants’ rights to a stable and predictable legal environment.
Trammell frames his article around the problem of serial litigation. As a general matter, parties are not permitted to relitigate claims or issues that have already been litigated. Litigants can circumvent this bar by having a non-party to a first lawsuit bring a second action. In some cases, this has the effect of giving relief to the first party, particularly when the remedy sought is of an equitable nature and all similarly situated persons will benefit from the relief granted to the second-comer. Courts have struggled to articulate workable doctrines that do not bind absent parties to decisions in which they had no ability to argue or influence the outcome, but that also protect defendants from potentially vexatious repeat litigation.
Framing the preclusion/precedent problem as one that is primarily concerned with solving the problem of serial litigation emphasizes the disconnect between the two doctrines and allows Trammell to suggest that any plausible solution must account for a deeper understanding and application of the due process theories that underpin each doctrine, theories directed toward addressing serial litigation. It might be, however, that these doctrines do not fit neatly within the framework of problematic serial litigation. For example, one traditional justification for limiting the preclusive effect of judgments to parties while allowing precedential effect on all future parties is that each doctrine is directed at different classes of actors. The effect of preclusion is to bar future litigants from bringing a claim or relitigating an issue. But precedent does not bind parties directly, per se; rather, it binds future decision makers. Judges are bound by precedent, while parties retain more freedom. Future parties are constrained in their ability to achieve a desired outcome within the molding of existing precedent to which judges must adhere, but they are not barred from bringing the claims in the first place. This framing accounts for the fact that precedent is meant to address more than the problems that arise from serial litigation.
One of Trammell’s main contributions is to demonstrate the gap between theory and reality in this distinction. He urges the reader to look at the reality of the paralyzing and crushing weight of precedent, which becomes a de facto regulator of non-party lawsuits, justified by a due process theory inconsistent with that behind preclusion doctrines. Recognizing two distinct theories of due process better explains the doctrinal conundrum because they reflect the actual effects of each doctrine rather than the theoretical differences in scope. This observation also allows Trammell to advance a normative argument. Looking at each due process theory, he offers a convincing argument that the outcome-oriented theory of precedent is much more consistent with due process theories underlying other doctrines both in civil procedure and in the wider legal context. Applying the outcome-oriented theory to preclusion doctrines would enable courts to relax further the prohibitions on barring non-parties from effectively relitigating settled issues or claims in new lawsuits.
Trammell sees the outcome-oriented theory as dominant and the participation-oriented theory as “anomalous.” Although he makes a convincing case for the dominance of the former, he may be giving short shrift to the latter. While the participation-oriented theory is certainly less prominent, it is a stretch to characterize it as anomalous. Class actions represent the biggest example of the Supreme Court’s concern for the “day in court” theory of due process. The Court has repeatedly issued decisions celebrating the right of each current or potential class member to have his or her personal day in court. Many of the class-action structures, from notice to certification to settlement, are designed to ensure that no party is “absent” before it is bound by a settlement or judgment. Trammell’s intuition might be right to show that these decisions value a participation that is largely illusory. Beyond the fact that only a tiny fraction of absent class members will meaningfully object to or opt out of a class action, the “day in court” decisions rest on a participation theory, but result in less participation in practice. After all, many of the decisions that protect absent class members have the practical effect of weakening the class-action mechanism itself. And since many of these actions are made up of negative expected value claims, the upshot of the Court’s concern about individual participation is to reduce court access altogether.
While the participation-oriented theory might not be a true due process outlier, Trammell is correct to suggest the concern for “participation” might be another outcome-oriented theory. Trammell ends his article with a call for “leveling down,” using the outcome-oriented theory to justify an expansion of non-party preclusion. While this is an appealing doctrinal solution to the problem of serial litigation, class-action jurisprudence shows that courts might be too beholden to the participation-oriented theory in the minority of contexts where it exists—so much so that they will preserve the appearance of participation even when their decisions have quite the opposite effect.
Alexandra D. Lahav, Procedural Design
(2017), available at SSRN
An elegant logic seems to animate the intricate mechanics of civil procedure. To determine whether a requested remedy is appropriate, courts must identify the scope of a dispute, consider whether the law provides a potential basis for judicial action, resolve factual disagreements, apply the law to the facts, and reexamine that application when necessary. These abstract requirements manifest as an ostensibly sequential process of pleading, discovery, trial, and appeal, interspersed with dispositive motions.
In theory, each sequential stage of litigation incorporates data developed in prior stages, enabling courts to make progressively more informed decisions. Although a stage analyzed in isolation may appear to involve disjointed maneuvering, a broader choreography unites and structures all stages of a civil action. But what happens if the choreography unravels, jumbling the order of adjudication?
Alexandra Lahav’s new article, Procedural Design, challenges tidy sequential accounts of civil adjudication. The article builds from an empirical observation to a normative conclusion. Empirically, Lahav observes that civil litigation in federal courts does not follow the “textbook” sequential progression that commentators often assume. Instead, “a federal lawsuit may proceed in almost any order” (emphasis in original). She then contends that this departure from presumed ideals requires rulemakers to articulate guiding principles for the progression of adjudication. The article suggests three normative approaches, although one need not agree with Lahav’s typology of cures to accept her diagnosis.
The article’s empirical claim rests on analysis of five “doctrines of disintegration” that erode the customary sequence of litigation. Three of these doctrines entail consideration of facts prior to discovery. For example, motions to dismiss for failure to state a claim invite speculation about the plausibility of factual allegations and in complex cases can address factually detailed Lone Pine filings. Likewise, class certification motions can lead to “a full blown trial at the commencement of litigation” on an incomplete yet functionally dispositive record. Even summary judgment motions, which seem to require significant fact development, are now often used to avoid discovery rather than as the culmination of discovery. The remaining two “disintegration” doctrines involve shifting legal inquiries away from the starting and ending points of a suit. Appeals are frequently available in the middle of a case rather than at the end, while inquiries into justiciability and jurisdiction can occur throughout a case rather than only at the beginning.
A theme unifying Lahav’s examples is that the role of individual procedural devices evolves over time while the underlying systemic design remains static. Doctrinal evolution has many causes, including revised theories about the desirability of competing ends and the feasibility of proffered means. Procedures that seem misguided or wasteful in one era can appear prudent and efficient in another. Indeed, a recurring catalyst for change is a perception that prior procedures excessively accommodated weak claims or disfavored claimants. This perception raised the bar for pleading and class certification and lowered the bar for summary judgment and interlocutory appellate review.
Whatever the reason for doctrinal evolution, modern usage eventually diverges so far from what was originally expected that a rule no longer fits comfortably within the space for which it was designed. As more time passes, the accumulation of changes across multiple rules increases the system’s drift from its original assumptions. No innovation is revolutionary on its own, but the aggregation of several innovations can challenge assumptions about the proper sequence of litigation.
Lahav contends that this “organized decay”—an evocative quote from Emily Dickinson—has gradually undermined procedural coherence for the past forty years. The consequences are pervasive because the transsubstantive aspiration of federal procedure enables new ideas to propagate across substantive boundaries. For example, there is a short road between holding that complex antitrust cases require relatively precise pleadings and extending the new rule to all civil actions. The consequences of travelling down that road might not be apparent to judges focused on immediate rather than systemic concerns. As Lahav notes, courts often implement “piecemeal reactions to the problems posed by the individual case” without “think[ing] about procedural design holistically.”
Lahav concludes by considering how a holistic approach to procedural design might address questions about sequencing. To test competing options, Lahav posits that a sound procedural regime must promote four goals: a “meaningful hearing,” “a fair chance of reaching the correct result,” “speed,” and making costs predictable while balancing costs against competing objectives. She then identifies three distinct approaches to sequencing and assesses each in light of the goals above.
First, rulemakers might attempt to restore the “textbook” order in which motions “are calibrated to the information available at the stage of the litigation in which they are brought.” This approach has both the benefits and costs of formality. The pretrial, trial, and appellate stages would coalesce in a way that is logically coherent and easily administered, yet potentially stifling and wasteful.
Second, at the opposite extreme, rulemakers could authorize “bespoke procedures.” Judges would tailor the sequence of motions to the perceived needs of a case without any effort to enforce a prescribed order. This system’s flexibility might be productive in some circumstances, but discretion could easily lead to uninformed, arbitrary, or inefficient decsionmaking.
Third, rulemakers could jettison transsubstantivity in favor of “subject specific procedure.” Just as common law courts in England applied distinct procedures to different writs, federal courts might develop unique procedures for different claims. Sequencing would vary depending on the type of claim being considered, but each sequence would be fixed (at least relative to the bespoke option). This hybrid of the textbook and bespoke approaches risks sharing the flaws of each: it may be both too flexible and too rigid. In addition, the administrative costs of creating and implementing myriad sets of rules—including concurrently in cases with multiple claims—might outweigh the marginal benefit of customization.
Lahav acknowledges that all three potential regimes in her typology have flaws. Her goal is not to identify an optimal approach to sequencing procedures, but to provide a framework for further study. She reveals a trend, raises concerns about its consequences, identifies categories of responses, articulates norms by which to test those responses, and provides a preliminary assessment of competing options.
The article raises numerous fascinating questions for scholars to consider. I will highlight three. First, to what extent have adventurous exercises in resequencing significantly altered outcomes in a material number of cases? The article focuses on identifying the theoretical implications of doctrinal changes and provides specific examples, but the practical scope of the problem is difficult to quantify. Second, did the “textbook” description of procedure describe an order that rulemakers never fully embraced? Concise textbook summaries of a complex procedural system inevitably gloss over nuances. Perhaps the conventional account of sequencing was always neater than the reality on the ground, such that modern departures are more incremental than they may seem. Third, is the problem that courts are departing from established norms, or that they are doing so in an ad hoc manner? The FRCP’s framers deliberately designed the rules to be pliant and entrusted them to a common law method of elaboration. The problems that Lahav identifies may be foreseeable consequences of how federal procedure develops, or a reason to rethink the rulemaking process.
Lahav’s rigorous and thoughtful article will be a rich source of insight for scholars addressing these and other questions about the design and implementation of procedural rules.
Symeon C. Symeonides, What Law Governs Forum Selection Clauses
, 78 La. L. Rev.
(forthcoming 2018), available at SSRN
I can think of no better person to answer the burning question, “What law governs forum selection clauses?” than the inestimable Symeon C. Symeonides, of conflict-of-laws fame. Symeonides has stepped into the breach to assist civil procedure and federal courts professors everywhere with an exhausting analysis of how to resolve the problems relating to applicable law as it applies to contractual forum selection clauses.
Some may remember that the Supreme Court in Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas avoided (or evaded) this fundamental question. Instead, focusing on proper procedure, the Court held that a forum selection clause is appropriately enforced through a venue transfer motion under 28 U.S.C. § 1404(a).
Having resolved this vexing procedural issue, the Court left unanswered an array of irksome foundational questions. In the final analysis the Court’s entire Atlantic Marine edifice was erected on the premise that the forum selection clause in that case was valid. In footnote 5, the Court simply noted that “[its] analysis presuppose[d] a contractually valid forum-selection clause.”
Atlantic Marine proceeds from a presupposition of validity, which invites the question of how to decide if a forum selection clause is, in fact, valid. At a minimum, three legitimate questions arise: (1) what body of law applies to evaluate the validity and enforceability of a forum selection clause? (2) what court should make that determination? and (3) when should that determination be made? The analysis is further complicated depending on whether or not the contract also contains a choice-of-law provision. A choice-of-law provision might point to the application of a law other than the law of the plaintiff’s chosen forum. In such cases, as a matter of first instance, does the plaintiff’s chosen forum apply its own law to determine the validity and enforceability of the clauses, or does the choice-of-law provision compel interpretation of validity and enforceability based on the contractual forum’s law? Does the answer to this question vary depending on whether the court’s authority is based on admiralty, federal question, or diversity jurisdiction? And, if the threshold dispute centers on the validity and enforceability of choice-of-law and forum selection clauses, why should another forum’s law govern these questions?
Symeonides leaps into this breach to discuss, evaluate, and propose answers to these questions. In methodical fashion, he takes the reader through a decision-tree analysis, categorizing various possibilities for the choice-of-law question. At the threshold, he suggests that cases need to be assessed based on whether the applicable-law question is litigated in the court designated by the forum selection clause or in another court, and whether a choice-of-law clause is included in the forum selection clause. He also emphasizes that courts ought to pay better attention to the distinction between the enforceability and interpretation of forum selection clauses. He writes: “Once interpretation is separated from enforceability, one can address with a clearer mind the question of what law should govern the enforceability of [forum selection] clauses.”
Symeonides then surveys three possible scenarios where the parties’ contract contains a forum selection clause: (1) actions filed in the court chosen by the forum selection clause, (2) actions filed in a court other than the one chosen by the forum selection clause where the contract does not also contain a choice-of-law clause, and (3) actions filed in a court other than the one chosen by the forum selection clause where the contract does also contain a choice-of-law clause. In discussing the third scenario, he reviews decisions where courts have applied forum law, applied the contract’s chosen law, or distinguished between enforceability and interpretation.
Following an exhaustive recitation of judicial decisions, Symeonides offers these summary conclusions. In scenario 1, courts apply the forum state’s internal law without any choice-of-law analysis. These courts apply forum law in interpreting and determining the enforceability of the clause. In scenario 2, courts apply forum-state law to determine whether the forum selection clause is enforceable. A few cases undertake a choice-of-law analysis, but only in interpreting the forum selection clause. In scenario 3, courts chiefly apply the forum state’s internal law to determine whether the forum selection clause is enforceable and apply the law chosen in the choice-of-law clause in interpreting the forum selection clause.
In assessing what courts have been doing with regard to the applicable-law quandary, Symeonides concludes that most American courts, in all three scenarios, demonstrate a bias for applying lex fori, or the “internal” law of the forum state. The vast majority of courts, he notes, apply the forum state’s internal law to determine whether a forum selection clause is enforceable, and more often than not, do so without conducting a choice-of-law inquiry. Noting this judicial preference for application of lex fori, Symeonides challenges the reader to consider whether this is a bad practice. He reviews the competing scholarly views either repudiating or defending this practice, with his own sympathies tending toward the lex fori approach.
As law professors appreciate, conducting a choice-of-law analysis is not for the faint-hearted. Judge Jack Weinstein is reputed to have once jokingly said that whenever he wanted parties to settle a case, he would call them into chambers and tell them that he wanted them to return to court with a choice-of-law analysis.
As the country’s preeminent conflicts scholar, Professor Symeonides has performed an extremely valuable task in systematically hacking through the Gordian knot of the applicable-law problem intertwined with forum selection clauses. Civil procedure professors, in teaching Atlantic Marine, now have a ready resource to address student enquiries: “So what law applies if we have to decide whether the forum selection clause is valid?” Brave professors may venture an explanation citing Symeonides, or otherwise send questioning students to this thoroughgoing article.