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In a Different Voice

Elizabeth Chamblee Burch & Margaret Williams, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd, __ Cornell L. Rev. __ (forthcoming 2022), available at SSRN.

How should we measure the value of an article? Easy metrics come to mind: citation counts, the h-index, SSRN downloads, likes and retweets, etc. All reflect the pathogenic logic of YouTube and Instagram celebrityhood transposed to legal scholarship. We all know that. Yet many of us pour over top-10 lists of most-cited scholars in different fields, compare downloads, and fret when a forthcoming article in our area does not cite us. When the masters behind the tyranny of the U.S. News metrics flirted with including citation counts, more than a few corners of legal academy prepared to fall in line. Some perhaps a bit too eagerly.

How about other (anti-)metrics: humanity and compassion? A bit quaint, perhaps, too cute in a hardnosed data-driven world. But why not focus on meaningful markers of human flourishing?

Elizabeth Chamblee Burch and Margaret Williams’s new article would score high on both counts.

The article opens with the obligatory observation in the field that MDL caseloads swallow up more and more of the federal docket and involve many high-profile issues (e.g., opioids). This trend has drawn significant scholarly attention. Yet we still know little about the individual plaintiffs in many of these MDLs. Their views, concerns, and frustrations have largely remained hidden. Burch and Williams conducted a survey of plaintiffs in numerous MDLs to understand their perspectives and inform numerous doctrinal debates.

Burch and Williams begin by rehearsing MDLs’ transfer provisions and specialized litigation procedures. They contrast these structural features with the main findings of the procedural justice literature. That literature suggests individuals value proceedings that allow for participation (or at least presence), that are intelligible, where an attorney they trust can influence proceedings, and where a judge considers the facts of their case. MDLs might be efficient (allowing for one judge and a few adjuncts to handle huge numbers of cases), but they purchase such efficiency at the cost of distant proceedings that drag on for years, that are led by a team of attorneys with no relation to most plaintiffs, and that rarely concern themselves with the messy business of understanding the stories of individual plaintiffs.

Then comes Burch and Williams’ main contribution: they ask a bunch of plaintiffs a bunch of questions. The article analyzes how these answers relate to important doctrinal questions, raise ethical concerns for the often absent or dismissive MDL attorneys, and generally show “a system under stress,” often unable to meet basic thresholds of what we expect from a proud judicial system. The article includes various proposals to ameliorate the current state of affairs, ranging from required attorney public-disclosure statements to technologically enabled transparency measures (Zoom MDLs!) to appointment of separate attorneys for separate interests.

I could summarize the article and its practical, doctrinal, and theoretical points at great length. But the point of the article is to let MDL plaintiffs speak in their voices. So here are a few quotes from the article. (There are many more and they deserve to be read with care.)

  • “I was on an assembly line and just waited for years.”
  • “I feel that the judicial system is treating this serious matter just like a mass production of a product and not as legal human suffering cases where people’s lives are at stake.”
  • “It was a total failure of the system. I lost faith in the legal system and feel these multi district lawsuits do not help the individual in any way.”
  • “I absolutely feel like I don’t matter. I would even say I kinda feel like my attorney just wishes I would die so they could forget about the whole thing.”
  • “I feel as though I was never represented. To this day I have never spoken with the attorney . . . . I had absolutely no input in my own case.”
  • “[My lawyers] waited till the night before to tell me that I had a deposition the next morning” and then “no showed and the person from Johnson and Johnson had to conference call them in so they could continue. I walked into that deposition so unprepared and alone.”
  • “I felt like I didn’t matter at all and I was just another number.”
  • “My life has been ruined and my attorney apparently doesn’t care. There’s been no personal interaction with him.”

One might have different reactions at this point. One is to examine the data and the process that generated it. There are weak points. For example, the survey focuses on plaintiffs in 26 thematically linked MDLs out of hundreds available. The survey was web-based, not administered in person or on paper. The authors relied on social media, webpages, plaintiff’s attorneys, and news coverage to spread the word about the survey. It yielded 217 unique and verified responses (the authors also “spoke with over 20 [plaintiffs] by phone and corresponded with over 90 by email and electronic messages”). In short, the survey is not random and it is difficult to identify a population from which it samples. Also, as the authors acknowledge, “it is possible that those who felt more strongly about their experiences might have been more likely to participate and, of course, recollections may be tainted by any number of biases.” As such, all claims that rely on the representativeness of the survey must be read with lavish caution.

But perhaps that misses the point. Perhaps a better reaction to the many quotations in this article is to reflect on the suffering and outrage that these people experienced within these MDLs. Perhaps one might even ponder one’s role in all of this. I wondered if I had trained any of the lawyers involved. That is uncomfortable terrain, and I found myself instinctively reaching for the familiar comfort of literally any other article to avoid the emotional drain of this one. I am humbled by the compassion and humanity it took to research and write this article.

Of course, it could be that the survey responders are outliers. But I am not sure anymore. Are there accounts of people ennobled by MDLs and pleased with the procedure? Plaintiffs who were properly treated, respected, their stories heard and their view of the legal profession, the legal system, and the rule of law enhanced? Such people might exist (after all, without MDLs they might have been unable to find a lawyer and sue at all). But perhaps it is time for MDL proponents to find these people and bring forward their side of the story. As it stands, we have many stories that make the usual invocations of efficiency and lack of alternatives ring hollow.

Cite as: Roger M. Michalski, In a Different Voice, JOTWELL (November 18, 2021) (reviewing Elizabeth Chamblee Burch & Margaret Williams, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd, __ Cornell L. Rev. __ (forthcoming 2022), available at SSRN),

Recovering Equity

Samuel L. Bray & Paul Miller, Getting Into Equity, 97 Notre Dame L. Rev. __ (forthcoming, 2022), available at SSRN.

I write to offer three cheers for Getting Into Equity, a rumination on the distinctive manner in which litigants invoke law and equity. To get into law, the authors explain, one asserts a cause of action, rooted in a Roman law conception of redress for a violation of one’s rights. To get into equity, the suitor provides a narrative account of a grievance that raises an equity in her favor. Equity may act in relatively predictable ways, but it remains fundamentally discretionary in the hands of judges or chancellors who have been asked to correct an injustice. The authors persuasively argue that the distinction has survived (if barely) the fusion of law and equity in the Federal Rules of Civil Procedure.

One immediate takeaway (as my students like to say) seems straightforward: judges asked to do equity must conduct a more flexible, less rule-bound assessment of the nature of the grievance and should not insist on codified causes of action. That may suggest that the failure of Congress to create a statutory right to sue in favor of the United States should not prove fatal to its suit for injunctive relief against enforcement of the Texas anti-abortion statute, SB8. Rather, the extraordinary nature of SB8’s enforcement regime and the apparent inadequacy of remedies at law for doctors who face a string of potential bounty-hunter proceedings might justify equitable intervention absent any statutory (or prior precedential) authority.

But for those of us struggling with puzzles like Ex parte Young (EPY) and Bivens, the paper offers a good deal more. Justice Harlan cited EPY in his Bivens concurrence, explaining that the right of action for constitutional wrongs had already been recognized (EPY) and the Bivens action simply offered an additional remedy (damages) in circumstances where no other remedy would suffice. Bray and Miller allow us to see that perhaps Harlan had things backwards: equity arises to complete or fulfill the common law, but the existence of an equity cannot give rise to the sort of rights that tort law customarily enforces. One might reason from a common law invasion (denial of substantive due process) to an equitable remedy (EPY) but not from equity (EPY) to a right of action, enforceable in a suit for money (Bivens).

So how can we tell when a federal court should recognize an equity? Just the other day in my federal courts class, I channeled the Justice Scalia of Armstrong v. Exceptional Child Center and the movie Ghostbusters in describing equity as a “free-floating phantasm.” Bray and Miller would agree. They explain, apropos of the origin story, that “[e]quity was in the background, and it was always there.” It does not require a statute to give it life; only a grant of jurisdiction and the federal courts have had that in abundance, under both Article III and the First Judiciary Act.

Yet the authors acknowledge that sometimes equity matures, from a body of grievance-based corrective justice to a set of supplemental rules that provide “first-order law,” comparable to a common law or statute-based right of action. That has happened, Bray and Miller explain, as to certain equitable specialties such as trust law. But in the main, equity remains corrective, filling gaps in the common law and supplying remedies tailored to specific accounts of injustice. Equitable jurisdiction and equitable discretion go hand in hand.

But how can we tell when equity has matured, evolving from corrective to supplemental? Does the change occur when a doctrine of equity, like the action recognized in EPY, has been enshrined in a Supreme Court opinion? Perhaps not, as the Court there emphasized the equities. When the holding has been restated on numerous occasions? Perhaps not, as equities might vary from case to case. When the holding has withstood a call for a return to a discretionary, corrective justice regime? In the case of EPY, Justice Kennedy called in Coeur D’Alene for a return to a discretionary doctrine. But the Court (perhaps under the influence of a rule-focused Justice Scalia) rejected that call. And all signs suggest that the Court prefers to do its constitutional business by declaring the law, a practice that it views as better suited to litigation brought for injunctive and declaratory relief than in suits for damages. Can we now think of EPY as supplemental, rather than corrective, and as a proper foundation for the sort of reasoning on which Justice Harlan based his Bivens concurrence?

One should mostly praise in a jot. If I were obliged to quibble, to season the praise so to speak, I would mention an item or two that the authors already know. True, the petition of right was addressed to the Crown’s discretion, but by the time Blackstone wrote it had evolved (matured?) into a proceeding that was resolved on legal principles; the Attorney General granted a fiat if the claim was well-founded in law. And true, courts of law and equity were separate in many Anglo-American legal systems. But joinder was no stranger to Americans with knowledge of Scots practice, and joinder emerged early in the federal courts with law and equity conducted on different “sides” of the same federal courtroom. And true, bills of complaint were lengthy, no doubt a reflection as the article suggests of the need to narrate a grievance. But bills also offered sworn statements of fact on which the courts might proceed to do equity, especially if the respondent failed to make an effective answer. Quite a different procedural world from our modern, federal rule-based hybrid of notice and plausibility pleading.

Returning to the Federal Rules, one finds the choice of language there all the more striking in light of the authors’ account of joinder and the cause of action. The formulation in Rule 8—the “claim for relief”—might encompass both the cause of action at law and the grievance in equity. Perhaps there is room in that phrase to accommodate the project of equity’s recovery, a project to which the authors have contributed much scholarly energy and erudition.

Cite as: James E. Pfander, Recovering Equity, JOTWELL (November 4, 2021) (reviewing Samuel L. Bray & Paul Miller, Getting Into Equity, 97 Notre Dame L. Rev. __ (forthcoming, 2022), available at SSRN),

Recasting the Corporate Bias of Civil Procedure: A Neoliberal Theory

Luke Norris, Neoliberal Civil Procedure, 12 U. C. Irvine L. Rev. ___ (forthcoming, 2022), available at SSRN.

In discussing federal rulemaking, civil procedure teachers have long pointed out prevailing norms of impartiality and neutrality. But most understand that the promise of neutral rules, as applied, often falls short of these aspirational goals. This realization prompts students to think beyond case outcomes and to reflect on the interests that courts serve by their judicial decisions. Commentators have analyzed the Court’s embedded political preferences, centering on the Court’s pro-corporate and anti-plaintiff bias that denies access to justice and “closes the courthouse doors.”

In Neoliberal Civil Procedure, Luke Norris pursues this enquiry, setting forth a sophisticated explanation grounded in neoliberal economic theory. His general themes and conclusions are the same as the “access to justice” crowd: that the way in which the Court has interpreted procedural rules has placed barriers to citizens seeking to vindicate rights in civil litigation. Norris endeavors to move the discussion beyond the simple incantation that the Court is pro-corporate and anti-plaintiff. Instead, Norris explains how neoliberalism has become a prevailing model in the Court’s application of procedural rules.

According to Norris, neoliberalism describes the revival of doctrines of classical economic liberalism. Neoliberalism is based on market-models of efficiency and autonomy, market arrangements, and the reduction of citizens to consumers and atomistic individuals rather than social agents. This market-model exceptionalism conflicts with democratic values such as distributive fairness, workplace security, economic opportunity, civic equality, and community solidarity. Neoliberalism is hostile to questions of power, structure, or vulnerability, and sidelines issues of coercion, subordination, and domination. It seeks to construct a law and politics that shields market relations from democratic control. Consequently, the infusion of neoliberalism into procedural decisions has made it increasingly difficult for plaintiffs to enforce regulatory laws such as antitrust, consumer protection, and anti-discrimination statutes.

Norris applies this theory of neoliberalism to four parts of the Court’s procedural jurisprudence: summary judgment, pleading, arbitration, and class actions. These decisions represent the low-hanging fruit for critics of a corporate-leaning Court; Michael Vitiello’s Animating Civil Procedure used the same examples to describe the Court’s pro-corporate bias. Norris examines these decisions through a neoliberalism lens.

Norris’s star example of neoliberalism at work is the Court’s 1986 summary judgment decision Matsushita Electric Industrial Co. v. Zenith Radio Corp., an antitrust case. Norris characterizes the decision as “perhaps the zenith of procedural interpretation that is market naturalizing, allowing judges to bring economic theory into their decision-making to construct market rationality.” In granting the defendant’s motion, the Court asked whether the plaintiff’s claim made economic sense. The Court constructed what it thought was plausible through the lens of efficiency, focusing on Chicago-school economic theory about how rational, profit-maximizing companies act. This increased plaintiffs’ procedural burdens in antitrust cases.

In the pleading arena, Norris finds neoliberalism infusing 2007’s Bell Atlantic v. Twombly, another antitrust decision. In dismissing the plaintiffs’ case for a lack of plausible pleading, “the Court again constructed its own view of efficient market rationality . . . and used that view to naturalize market behavior and insulate it from regulatory litigation.” In addition, the Court’s focus on discovery costs and burdens on institutional defendants was consistent with a market-efficiency rationale. Norris notes that while Matsushita represented a “foray into economic theory,” the Court there had relied on a well-developed record. The Twombly Court decided the motion on a record bereft of evidence. The Court “inserted itself . . . into reasoning about what was plausible within the market and whether market relationships evinced anticompetitive conduct at the pleading stage.” In dissent, Justice Stevens argued that the Court’s decision would invite lawyers to debate economic theory to conclusively resolve antitrust suits without any evidence. Needless to say, numerous critics piled on Twombly for its anti-plaintiff impact.

Regarding arbitration, Norris discusses the Court’s 1985 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. decision. That litigation asserted claims under the Sherman Act and involved a general arbitration clause. The Court interpreted the arbitration clause to include statutory rights and declined to allow the litigation to proceed in court. Norris suggests that Mitsubishi illustrates the Court’s lack of concern about power and parity: a lack that the Court would repeatedly manifest in many subsequent arbitration decisions.

Norris identifies two class action decisions reflecting the neoliberal approach to judicial decisionmaking. Norris’s prime example is Judge Posner’s 1995 Seventh Circuit decision in In re Rhone-Poulenc Rorer Inc. overturning a class certification, a decision infused with economic concepts such as settlement blackmail, which Norris contends persisted to impose hurdle after hurdle on class action plaintiffs. The Court’s 2011 Wal-Mart Stores v. Dukes demonstrates that the Court “trains its eye on the individual citizen consumer and thwarts and dampens collective or aggregate litigation.”

Norris speculates that this neoliberal age may be another passing civil procedure era. Understanding the logic and pull of neoliberalism puts reformers in a better position to effectuate change. But resisting the pull of neoliberalism “would require a profound shift, a democratic reordering that is unlikely to occur without a new governing coalition.” Norris rather grandiosely suggests that civil procedure for a revitalized democratic regulatory era would shift the normative focus beyond efficiency, involve rethinking the governmental role as a procedural facilitator, and develop a politics of procedure. This article is worth reading for the insight he brings to procedural developments and for the numerous debatable points and interpretations he suggests.

Cite as: Linda S. Mullenix, Recasting the Corporate Bias of Civil Procedure: A Neoliberal Theory, JOTWELL (October 20, 2021) (reviewing Luke Norris, Neoliberal Civil Procedure, 12 U. C. Irvine L. Rev. ___ (forthcoming, 2022), available at SSRN),

Hiding Behind Habeas’s Hardness

Jonathan R. Siegel, Habeas, History, and Hermeneutics, (August 6, 2021), available in draft at SSRN.

Habeas is hard. Even among law professors—indeed, even among law professors whose teaching and writing includes habeas—the statutes and doctrines governing collateral post-conviction review in the federal courts have become so complicated and convoluted that there is a temptation to skip it in the Federal Courts syllabus (and, I dare say, to gloss over any paper the title of which includes the h-word). Whether you are a habeas scholar or not, though, you should make an exception for Jonathan Siegel’s forthcoming essay.

Siegel’s paper centers on Edwards v. Vannoy—by far the Supreme Court’s most important habeas decision from its October 2020 Term—and explains why even those of us who have paid attention to it have missed what really matters. In the process, we have missed ominous portents of the future of the current Court’s approach to post-conviction habeas—and of how the current Supreme Court decontextualizes older rulings and statutes to rewrite history and to free itself from the strictures that proper understandings would impose. Siegel’s paper is equal parts trenchant and terrifying, and it is a must-read even for those who do not know, to this point in the review, what Edwards was actually about.

Let’s start there: The Court granted certiorari in Edwards to decide a relatively straightforward question. In 2020, a 6-3 majority in Ramos v. Louisiana held that the right to a unanimous conviction required by the Sixth Amendment’s Jury Trial Clause also applies to the states through the Due Process Clause of the Fourteenth Amendment. By incorporating against the states a new rule of constitutional law, Ramos raised the question of whether its new rule applied retroactively to those state prisoners whose non-unanimous convictions had become final. Under the framework the Court articulated in its 1989 decision in Teague v. Lane, a new constitutional rule is generally not enforceable on collateral review (as opposed to direct appeal) unless it invalidates the substantive basis for the petitioner’s conviction or sentence or it is a “watershed” rule of criminal procedure—one that implicates the fundamental fairness of the underlying criminal trial. The question in Edwards was whether Ramos belonged in this latter category.

For a 6-3 majority, Justice Kavanaugh said “no.” Far more than that, the Edwards majority (in a huge favor to future Federal Courts students) eliminated the “watershed” rule exception—since, in the 32 years it had been on the books, the Court had never identified a single new example (and the only old example was Gideon v. Wainwright). Not surprisingly, most commentary on Edwards focused on this rather aggressive and wholly unnecessary move by the majority and the troubling implications of the Court’s certitude that it would never again identify such a rule. For one especially good example, see Jeffrey Ho’s note in the June 2021 issue of the Stanford Law Review.

Here’s where Siegel comes in. His focus, unlike just about every other commentator, is on the two concurring opinions in Edwards—by Justices Thomas and Gorsuch (each of whom joined the other). As he (quite correctly) notes, the Justices used their separate opinions to attack the foundation of modern post-conviction review, arguing that historical practice and a proper interpretation of the relevant habeas statute (itself a descendant of the Habeas Corpus Act of 1867) should limit federal courts to reviewing only whether the state court was one of competent jurisdiction. As Siegel writes, “Under this rule, it wouldn’t matter if the state court that tried the prisoner’s original criminal case violated the prisoner’s right to a jury trial, to the assistance of counsel, to call witnesses, to avoid self-incrimination, or any of the numerous other federal constitutional rights that apply in state criminal proceedings.” After all, as we understand “jurisdiction” today, a criminal case in which a state court lacks it is exceedingly rare.

The problem, as Siegel’s paper thoroughly and convincingly explains, is that is not how “jurisdiction” was understood at the relevant times—by antebellum state and federal courts and by the Radical Republicans in Congress who drafted the Habeas Corpus Act of 1867 (and, to a lesser extent, the radical Republicans in Congress who drafted the Antiterrorism and Effective Death Penalty Act of 1996). To the former, Siegel marshals significant evidence in support of a different framing—that “[t]hese cases used the term ‘jurisdiction’ as a term of art with a specialized meaning quite different from the meaning it would have today. Federal courts issued habeas relief to prisoners in custody by virtue of courts’ judgments even though the courts had what would today be regarded as jurisdiction.” Indeed, as even non-habeas nerds know, the Supreme Court spent a good part of the early 2000s clarifying what the term “jurisdiction” means, after so many lower courts had read it far more capaciously. The Court’s modern terminological formalism vis-à-vis the concept of “jurisdiction” underscores what Siegel’s paper makes explicit—that this formalism is new.

To the latter, Siegel walks through the evolution of the federal habeas statutes from 1867 to today, and shows—again, convincingly—how, at each step along the way, Congress understood the scope of relief it was authorizing to extend beyond what we would understand today as collateral attacks on the subject-matter jurisdiction of the trial court. Even AEDPA would have had no need to impose many of the controversial limits that have formed the backbone of modern habeas jurisprudence if Gorsuch and Thomas were right.

There is a lot to commend this punchy, short, and direct paper. It is accessible to non-habeas scholars. It does not try to include a literature review that would bog down the footnotes. It engages directly with the reasoning of the Thomas and Gorsuch concurrences. And it attempts to offer broader lessons about judges doing history and hermeneutics—and the importance of reading not only statutes in context (including what their language necessarily implies), but judicial decisions as well.

Alas, in habeas scholarship, this is hardly a new theme. From James Liebman to Randy Hertz to Amanda Tyler to Paul Halliday to Todd Pettys to Baher Azmy to Lee Kovarsky to (you get the idea), one could fill a library with two decades of convincing, unrebutted academic work demonstrating beyond peradventure that habeas was far more robust before the Supreme Court’s canonical 1953 decision in Brown v. Allen than is widely understood. To similar effect, much of this work has attempted to demonstrate that many contemporary conservative jurists continue to misstate the origins and historical understanding of habeas. Yet, as the Thomas and Gorsuch concurrences in Edwards underscore, none of that scholarship seems to have broken through. Meanwhile, as Siegel notes, the changing composition of the Court makes the project much more urgent, with a growing possibility that a majority exists to adopt this deeply revisionist view of 18th, 19th, and even 20th century habeas practice at the expense of the constitutional rights of state (and, it would seem to follow, federal) prisoners. Here’s hoping that Siegel’s succinct and scary essay breaks that cycle—and that the Supreme Court does as well.

Cite as: Steve Vladeck, Hiding Behind Habeas’s Hardness, JOTWELL (October 6, 2021) (reviewing Jonathan R. Siegel, Habeas, History, and Hermeneutics, (August 6, 2021), available in draft at SSRN),

Standing for Something More: Respect and Article III

Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L. J. 1263 (2021).

The last Supreme Court Term featured a bumper crop of important decisions on standing, justiciability, and remedies. The outcomes were not monolithic. Some were sympathetic to those seeking access to judicial remedies in federal court, while others seemed to erect significant barriers—even in stark defiance of the express will of the federal government’s two other branches. The Court’s recent pronouncements also reveal sharp divides among the justices about issues at the heart of what they and the rest of the federal judiciary actually do: determine whether and when parties are entitled to judicial remedies.

Against this backdrop, Rachel Bayefsky’s article offers an especially timely and valuable contribution. Bayefsky identifies and critiques what she calls the “circumscribed” approach to the remedial authority of federal courts. At the core of this approach is a presumption that judicial remedies address solely the parties’ material circumstances. As Bayefsky shows, this vision undergirds the Court’s (or at least some justices’) attitudes on a range of issues—whether parties have Article III standing to sue in federal court, whether an offer of complete relief to a class representative can thwart a class action by mooting the representative’s individual claims, whether suits seeking only nominal damages may proceed in federal court, whether a party has “prevail[ed]” such that they are entitled to attorney fees, and whether injunctive relief for unconstitutional conduct may extend “nationwide.” For these issues, the circumscribed theory threatens to restrict or burden access to the federal courts and the power of those courts to remedy legal violations. And the circumscribed approach often acts as a matter of constitutional law—dictating the scope of Article III’s “case or controversy” requirement in a way that shuts the doors to federal courts.

Bayefsky offers a compelling alternative: an “expressive account” of judicial remedies. She argues that “a legitimate and important remedial task for federal courts is to express respect for parties’ dignity”—beyond the merely material concerns that are the focus of the circumscribed approach. These dignitary harms should be understood as constitutionally cognizable injuries that federal courts can and should remedy.

In support of this vision, Bayefsky marshals both historical and empirical support. She details, for example, the common law’s robust recognition of a party’s legal interest in respectful treatment. And she emphasizes the role that dignity and respect have played in a range of contemporary legal doctrines, such as antidiscrimination and equal protection law. Bayefsky also invokes empirical studies revealing how litigants’ dignitary concerns—the quest for respect and the need to redress disrespectful treatment—drive litigation. Vindicating these concerns increases procedural justice as litigants actually experience it and bolsters judicial legitimacy.

Bayefsky makes a convincing case that it is fundamentally mistaken to constitutionalize the circumscribed “material harm” vision into Article III’s “case or controversy” requirement. In doing so, she persuasively refutes the objection that dignitary remedies will invite federal courts to render “advisory opinions” in merely “hypothetical” disputes. That critique is premised on the circumscribed understanding of remedial authority. Once the expression of respect is recognized as an appropriate remedial task, disputes involving claims for such remedies are hardly hypothetical.

In refining her framework, Bayefsky provides sophisticated responses to some intriguing questions that her expressive approach presents. She distinguishes, for example, the “dignitary consequences of respectful and disrespectful treatment” from the psychological effects of such treatment. There is value in remedying disrespect, regardless of whether its targets suffer psychological trauma. Yet Bayefsky resists the conclusion that every legal violation necessarily causes dignitary harm, offering benchmarks to guide when expressive remedies are warranted. In addition, she highlights the importance of collective redress for dignitary harms that derive from an individual plaintiff’s membership in a broader group. This insight sheds particular light on the debate surrounding nationwide injunctions and other remedies that benefit individuals beyond the specific plaintiff bringing suit.

The Supreme Court’s jurisprudence on standing, justiciability, and remedies has long been the subject of criticism and perplexity. Bayefsky’s argument for dignitary harm as a cognizable injury and a proper subject of the federal judiciary’s remedial authority has the potential not only to correct substantive blind spots in the Court’s current doctrine, but to pave the way toward a more coherent and workable framework. It is a commendable, welcome, and well-supported proposal.

Cite as: Adam N. Steinman, Standing for Something More: Respect and Article III, JOTWELL (September 20, 2021) (reviewing Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L. J. 1263 (2021)),

A Gendered Right to Counsel?

Kathryn A. Sabbeth and Jessica K. Steinberg, The Gender of Gideon, 69 UCLA L. Rev. (forthcoming, 2022), available at SSRN.

The civil and criminal justice systems are built on an adversarial model, but only in the criminal sphere does the defendant possess a constitutional right to representation at public expense. As a result, while representation is the default in criminal cases, more than three quarters of civil cases involve an unrepresented party.

That disconnect flows from the Supreme Court’s decisions in Gideon v. Wainwright and Lassiter v. Department of Social Services. Gideon held that the Constitution guarantees a right to counsel for a defendant facing imprisonment for a criminal offense, regardless of the nature of the crime or the length of the sentence. Lassiter held that the Constitution does not provide the same guarantee for a parent facing the termination of her legal relationship with her child.

What does any of that have to do with gender? Quite a bit, Kathryn Sabbeth and Jessica Steinberg explain in The Gender of Gideon.

That Clarence Gideon was a white man while Abby Gail Lassiter was a Black woman is only the starting point for their analysis. They demonstrate that, when it comes to the right to counsel, race and gender play a striking role in both the flaws in the doctrine and the facts on the ground. “[I]n both criminal and civil proceedings, the defendants unable to afford counsel are disproportionately people of color. Yet, in civil proceedings, they are also disproportionately women.” (Emphasis in the original.)

No governmental agency collects data about the gender of civil litigants, so the authors find information that, while indirect, provides ample support for their claim that “women face civil justice issues regularly and with highly punitive consequences.” Nearly a fifth of civil matters are evictions, and numerous studies of housing courts show that women comprise a clear majority of those facing eviction. Approximately five million cases a year involve family law, and virtually all defendants in cases involving the termination of parental rights are women. Debt collection actions constitute about a quarter of civil cases, and governmental data suggests that women carry high levels of debt and fall behind on payments more often than men do.

Women often appear in court for civil matters without counsel. As noted above, three quarters of civil litigants are unrepresented, higher in eviction and debt collection cases. Landlords and debt owners, by contrast, have representation rates upwards of 90 percent, meaning that a pro se defendant in an eviction or debt collection action likely faces a represented party. The authors caution against drawing overly precise conclusions from the available data. But it is clear that women are heavily burdened by the absence of a “civil Gideon” for matters affecting their lives.

Moving from data to doctrine, the authors show that the Supreme Court’s right-to-counsel decisions have failed to reflect the profound importance of these matters. In Gideon, the Court held that principles of liberty and justice required a right to counsel in all criminal cases involving imprisonment. By contrast, the Court held in Lassiter that a mother’s liberty interest in her relationship with her child did not automatically trigger the same right. As the authors put it, “the Court flatly concluded that the right to parent was categorically less important than physical liberty.”

Instead of announcing an across-the-board guarantee, the Court held that the right to counsel in parental-termination proceedings would be determined on a case-by-case basis pursuant to the Mathews v. Eldridge balancing test, asking whether the private interest is significant enough, in light of the risk of an erroneous decision, to outweigh the state’s interests. The authors argue that the Court analyzed those factors in a way that devalued Abby Gail Lassiter’s relationship with her child. The Court showed no awareness of the long and ugly history of the destruction of Black women’s bonds with their children in discussing her liberty interests and did not identify the preservation of Lassiter’s family as an interest of the state.

In criticizing Lassiter, the authors do not idealize Gideon. They acknowledge the latter’s many failures, but also note its successes. The development of doctrine in eviction, family law, and debt-collection cases, compared with criminal cases, supports the proposition that Gideon has had some positive effects. In criminal cases, the availability of representation at public expense has facilitated frequent appellate decisions about important legal issues. In the most common categories of civil cases, by contrast, the absence of representation has meant that the less powerful party seldom appeals, let alone effectively presents issues for appellate review. Doctrine stagnates, if it does not disappear altogether.

The Gender of Gideon is a terrific article. It offers a rich and empirically grounded view of parts of the justice system that receive too little attention, and it persuasively explains the role that gender has played in those areas. It asks its readers to attend to those realities, and it also asks those of us in the legal academy to consider how we might be complicit in creating and sustaining them. For example, do we treat family law cases, courses, and scholarship as unimportant or lacking in prestige? What, if anything, do we teach students about the “domestic relations” exception to federal subject matter jurisdiction? It is worth thinking about those choices and the values they reflect.

Cite as: Maureen Carroll, A Gendered Right to Counsel?, JOTWELL (September 3, 2021) (reviewing Kathryn A. Sabbeth and Jessica K. Steinberg, The Gender of Gideon, 69 UCLA L. Rev. (forthcoming, 2022), available at SSRN),

A Rule Against Fun

Nina Varsava, Professional Irresponsibility and Judicial Opinions,  __ Hous. L. Rev. __ (forthcoming, 2021), available at SSRN.

In recent months, federal judicial opinions have criticized “schlocky Star Wars sequels” or called circuit case law “a hot mess.”  They have fondly recalled “[w]hen painter-turned-inventor Samuel Morse sent the first telegraph message” or sarcastically used expressions like “presto!” or “voila.” And they have sustained decades-long criminal sentences by writing: “tl;dr . . . . we affirm the whole kit and caboodle.” In different ways, these opinions are having a bit of fun. And what could be wrong with that?

Quite a lot, argues Nina Varsava in a bracing and timely paper on judicial rhetoric. The piece takes aim at opinions that are literary, witty, or entertaining—precisely the traits that, she argues, are often held in high regard. Part of Varsava’s argument overlaps with familiar debates about legal narrative and storytelling, but she goes in unexpected directions.

Varsava argues that the judicial role demands at least three things of court opinions: candor, impartiality, and respectfulness. Varsava excludes not just entertainment but persuasiveness from this list. A judge’s goal should be to provide a sound legal basis for the decision at hand, regardless of whether that justification proves attractive to its readers. Too often, the desire to persuade proves a temptation, yielding appeals to fashion or prejudice. Lawyers in robes should not write briefs.

The essay also considers various benefits and “ethical costs.” The benefits of fun, Varsava suggests, largely lie with the jurists who engage in it. Judges aspire to write engaging opinions to draw attention to themselves, enhancing their reputations and careers. Fawning commentators encourage this strategy. The costs, by contrast, are more systemic. Colorful rhetoric consumes the reader’s time, obscures legally important points, and lends itself to oversimple or offensive stereotypes.

An important theme is that what is good for one audience might be bad for another. What persuades experts might turn off lay readers. And what delights the media could offend the parties. The risk of demeaning criminal defendants looms especially large. “There’s no rule against fun” in judicial opinions, Justice Kagan once remarked. “But perhaps there should be,” Varsava responds, if fun too often comes at someone’s expense.

What would a rule against fun look like? At one point, Varsava backs up her call for “an even-keeled and restrained institutional style” by discussing stern rules, such as “no jokes.” At other moments, however, she is more cautious, asking only “to draw attention to the ethical stakes of the stylistic choices that judges make.” Possible reforms thus range from encouraging judicial care to requiring that all opinions be per curiam.

I find the essay most persuasive in showing that judges’ pursuit of fun carries serious risks that are too often overlooked. That message can acknowledge the systemic benefits of fun. Lawyers and students appreciate breaks from insipid prose, and some judges share unique, valuable voices. Further, part of the problem goes to quality. Nothing succeeds quite like success and nothing falls flat quite like a judge who is trying too hard.

The most auspicious reforms have more to do with legal culture than formal rules. Judges supply opinions to meet demand. We readers thus generate bad rhetoric by dolling out praise for cheap tricks and barbs. If we were more careful with our compliments, perhaps judges would be more responsible, too.

Cite as: Richard Re, A Rule Against Fun, JOTWELL (July 22, 2021) (reviewing Nina Varsava, Professional Irresponsibility and Judicial Opinions,  __ Hous. L. Rev. __ (forthcoming, 2021), available at SSRN),

Update of Jotwell Mailing Lists

Many Jotwell readers choose to subscribe to Jotwell either by RSS or by email.

For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the Courtslaw section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.

The links at the subscription portal already point to the new email delivery system. It is open to all readers whether or not they previously subscribed for email delivery. From there you can choose to subscribe to all Jotwell content, or only the sections that most interest you.

The Paths to Comprehensive Entity Liability in Constitutional Litigation

  • Katherine Mims Crocker, Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity, 73 Fla. L. Rev. ___ (forthcoming, 2021), available at SSRN;
  • Katherine Mims Crocker, Qualified Immunity, Sovereign Immunity, and Systemic Reform, 71 Duke L.J. ___ (forthcoming, 2022), available at SSRN.

Proferred solutions to the problem of police misconduct have coalesced around qualified immunity—government officials (not only police officers, although that has been the focus of the current political moment) cannot be liable for damages unless it was clearly established by judicial precedent that the officer’s conduct violated the Constitution, such that all reasonable officers would have known their conduct was unlawful. Scholars, justices, judges, and members of Congress have argued for eliminating the defense. And qualified immunity makes an easy target for reform by reference to cases involving prisoners locked in cells containing raw sewage or officers who stole cash and coins while executing a search warrant.

Katherine Mims Crocker offers a different approach. In two related articles that connect to a broader “panoramic view” of the system of constitutional-tort litigation—Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity and Qualified Immunity, Sovereign Immunity, and Systemic Reform—Crocker argues that the key to government accountability for constitutional wrongs lies in eliminating sovereign immunity and expanding the liability of government entities, rather than a pinpoint focus on eliminating qualified immunity (although she agrees the latter should happen).

Reconsidering looks backward to critique an arguable original sin—the Court’s conclusion that Congress did not abrogate sovereign immunity and subject states to suit under § 1983. The Court held that Congress did not provide a clear statement that states could be sued, using a statutory word—“person”—that does not, without more, obviously include states. This conclusion, Crocker argues, is doubtful on its terms, as a negative matter and an affirmative matter.

The negative critique targets the ahistoricity and anachronism of the Court’s analysis. It makes no sense as a matter of legislative-process theory for the modern Court to apply a clear-statement rule, judicially established in 1973, to a statute enacted in 1871. This carries greater force in light of the unique conditions and objectives of the Reconstruction Congress and its legislative efforts. The Court also assumed that the Reconstruction Congress understood that the Eleventh Amendment limited state suability and that it had to address that in the statute, although the Court did not hold that the Eleventh Amendment immunized states from federal claims until almost twenty years after the 1871 Act. The affirmative critique argues that the Court may have been wrong as a matter of text. The evidence “on balance” appears to show that states were “bodies politic and corporate,” persons under federal law, and within the meaning of the term in § 1983.

Qualified Immunity shows why this historical argument matters. Crocker argues that the constitutional-tort system focuses on individual rather than entity liability because of the Court’s “dedication” to sovereign immunity and other limitations on entity liability—a dedication reflected in decisions holding that states are not § 1983 persons. This background of sovereign immunity made individual officers the primary targets in damages claims. The Court then created qualified immunity to narrow individual-officer liability, ease the costs and burdens on individual officers, and avoid expanding federal dockets. This connection is not linear—the line of cases expanding qualified immunity (and thus narrowing individual liability) developed prior to and independent of the decisions narrowing entity liability. But that means the “real-life problems plaguing the constitutional-tort system” are not about qualified immunity alone, but about sovereign immunity and other limits on entity liability.

Crocker discusses literature showing near-universal government indemnification, with individual officers paying any amount in less than .5 % of cases and contributing .02 % of overall awards. Because qualified immunity exists to protect officers against crippling personal financial liability, the fact that officers pay virtually nothing undermines the doctrine’s purpose and existence. But indemnification also undercuts the reasons for sovereign immunity. Sovereign immunity seeks to protect the public fisc, to shield the treasury from damages actions. If governments agree to pay virtually all judgments through indemnification, it shows that the public fisc does not need protection from damages suits. If the logic of sovereign immunity falls, so does the logic of individual liability and thus the need for qualified immunity.

Instituting entity liability for all levels of government requires three changes, all of which can come from Congress. First, Congress should codify Bivens and waive federal sovereign immunity from constitutional-tort cases, creating a statutory analogue to § 1983 for constitutional violations by federal officers. Second, Congress should amend or replace § 1983 to make clear that states and arms of the state can be sued—legislatively correcting the judicial misstep discussed in Reconsidering. Third, Congress should eliminate Monell’s custom-or-policy requirement for claims against municipalities. All government entities would be liable for their officers’ constitutional violations under the common-law standard of respondeat superior. And these changes complement the fourth move of eliminating qualified immunity for individual officers.

The resulting comprehensive system allows plaintiffs to pursue claims against individual officers and government entities in a single action. Liability could attach to the entity on respondeat superior or on a custom-or-policy claim against unique systemic wrongdoing. Proceeding against individual officers remains important for claims based on conduct beyond the scope of employment (to which respondeat superior does not attach) but still under color of law (to which § 1983 does apply); Crocker offers the example of an off-duty police officer working as a private security guard who identified himself as a police officer prior to shooting the victim. This shift to entity liability offers three benefits—it improves litigation by bringing the public cost of the judgment (and thus of the constitutional violation) to the forefront, enhances political accountability, and better allocates the costs, burdens, and perverse of incentives of constitutional misconduct.

Crocker limits the proposal to Fourth Amendment excessive-force claims. These represent the most-pressing civil-rights problem and they lie at the center of the congressional focus on constitutional litigation; Congress is concerned with, and likely to act in response to, the narrow and politically salient issue of “policing” as opposed to the broader and more abstract issue of “constitutional enforcement.” Crocker hopes that this case study will allow and encourage governments to respond to the current policing crisis while seeing that entity liability is not destructive, while giving Congress the opportunity to use excessive-force as a test case for future expansion or fine-tuning. She recognizes the benefit of a one-time change to establish a broader scheme covering all constitutional claims, but argues that Congress need not jump there immediately and can reach the correct result even when it prefers to move incrementally.

The legal and political discussion of reforming constitutional litigation is welcome and necessary. But limiting the discussion to qualified immunity—with the opportunity to focus on and mock egregious decisions on Twitter—misses the broader issue. The process of constitutional litigation consists of many moving pieces that contribute to the problem and that any solution must address. Crocker offers and defends a comprehensive scheme that, if followed to the end, would produce a superior system of constitutional-rights enforcement.

Howard Wasserman, The Paths to Comprehensive Entity Liability in Constitutional Litigation, JOTWELL (June 23, 2021) (reviewing Katherine Mims Crocker, Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity, 73 Fla. L. Rev. ___ (forthcoming, 2021), available at SSRN; Katherine Mims Crocker, Qualified Immunity, Sovereign Immunity, and Systemic Reform, 71 Duke L.J. ___ (forthcoming, 2022), available at SSRN),

Getting Real About Procedure: Changing How We Think, Write and Teach About American Civil Procedure

Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, 48 Hastings Const. L.Q. 261 (2021).

It is time to do a gut check about the nature of civil procedure and due process in the United States. Much of the discourse among law proceduralists is divorced from the reality of how most Americans experience the court system, if they participate at all. With less than two percent of all civil cases brought in the federal courts, procedural scholars are being challenged to do some soul searching about our pedagogy and curriculum—largely centered on the federal civil system. The common proceduralist gaze falls on Supreme Court precedent and the Federal Rules of Civil Procedure—highbrow loci ripe for analysis.

But this focus misses the mark, argues Norman Spaulding in The Ideal and the Actual in Procedural Due Process. He flags that this perspective is “idealized, abstract, and ossified,” unconnected to the way things actually work. This myopia not only calls into question the relevance of much current civil process pedagogy, but has serious repercussions for the vulnerable and marginalized.

This article is one of my favorites because it directly appeals to those of us who teach and write about civil process and challenges us to face some important questions. It compels us to reflect on what we teach and write about and why, and whose experiences and voices are amplified or muffled by those choices. The schism between the ideal and actual ways procedural due process works in the United States is profound, making it incumbent upon us to rethink our preoccupation with the former over the latter. Spaulding reminds us that far more than the legitimacy of our field is at stake; so too are the lives of those most in need of due process protections.

The “ideal” discourse of civil process and due process—with its emphasis on the Supreme Court, the Federal Rules and the gold star but vanishing jury trial—is not entirely unjustified. Pragmatic and historical considerations abound; the federal system is tested on the bar, functions as a model for state courts, and is easier to study empirically.

Spaulding argues, however, that these reasons cannot justify the nearly exclusive attention on federal procedural law. The difference between ideal and actual procedural justice is alarming and profound. This difference plays out in three fora where most Americans seek justice: state courts, arbitration and administrative agencies.

First, local, not federal, courts are the home for the vast number of case filings. Justice meted out in state courts is a far cry from what the casebooks and introductory Civ Pro courses tell their 1L students. Relying on a 2015 National Center on State Courts study, Spaulding highlights the distinctions between the federal ideal and the actual state court reality along various axes: subject matter, monetary value, access to counsel, and case disposition method.

The prototypical state court case involves a lender successfully securing a default judgment against a pro se defendant for a low-value monetary claim. Powerful actors such as employers, creditors, and landlords use the state courts for debt collection, enjoying very little merits review or adjudication. Abusive debt-collection practices may result in judges issuing arrest warrants, holding debtors in contempt of court, and even jailing them for failing to appear or pay private fines and public court-imposed fees. Everyday Americans—living paycheck to paycheck—are deprived their basic due process rights of notice and the right to be heard on the merits, instead languishing in jails on account of their poverty.

For example, the Department of Justice investigation of Ferguson, Missouri produced a report unearthing serious due process violations and “coercive measures” used by the municipal courts to collect debts. The Report revealed inhumane treatment of African-Americans and draconian punishments for small violations. Spaulding reminds us of how the confluence of race and class inform what civil process is actually meted out in the courts and how the civil courts function as feeders into criminal courts, with grave consequences.

Second, given the proliferation of contracts of adhesion in consumer and employment matters, many Americans are required to resolve their disputes in arbitration rather than in the courts. Unfortunately, most people do not experience the often-touted benefits of arbitration (cheaper, faster, more flexible, and more participatory). Evidence indicates that powerful companies win 80% of the time. With the explosion of class-action bans in arbitration agreements, individuals with little money and small-value claims are unable to share the litigation cost and collectively pursue their claims. Consequently, low-wage and vulnerable workers cannot afford to challenge their employers in the arbitral forum and are denied any remedy, resulting in underenforcement of the law. Again, gender, race and class are strong markers of who will receive procedural injustice.

Third, a massive number of claims are processed by administrative bodies. Spaulding flags several procedural problems, including agency partiality, resource constraints, and delays. Those who suffer due process injustices include asylum seekers and immigrants who credibly fear persecution abroad, veterans who died waiting for benefits determinations, and workers denied worker’s compensation for injuries sustained on the job. Spaulding unmasks a different procedural reality than the one discussed in law reviews and 1L classrooms. Whether in state court, arbitration or an administrative hearing, the more vulnerable and powerless the population, the rougher the justice, if any, that is meted out.

Spaulding persuasively argues that procedural failure—its methodology and impact—must be studied and taught before it can be changed. Enter civil procedure scholars. He urges proceduralists to examine how drastic funding cuts to courts and advocacy organizations, a paucity of judges, failure of the organized bar to provide representation, and an ideological assault on adversary adjudication have undermined procedural justice.

But scholars must go beyond the diagnostic to understanding the human impact of procedural injustice, using qualitative as well as quantitative and doctrinal methods. Professors must open the classroom to the experiences of everyday people in the civil justice system. The principle that due process requires litigants be heard should inform our pedagogy and curriculum. The story of American civil process should not be told only by its makers but also by the people who experience it on the ground. The civil procedure course could model what due process looks like in reality by expanding the gamut of voices and perspectives in the classroom. This makes sense given the increasingly diverse population of the twenty-first century. The history of American civil process—including its use as a tool of racial subjugation at times—should be part of this inclusive and more accurate modern narrative.

Now, more than ever, it is important to get it right, given the high stakes. Spaulding looks forward to an unknown future in which artificial intelligence (AI) plays a greater role, warning us to take care not to reproduce the inequities and civil justice problems that already exist.

I commend Spaulding for shining light on the acute ideal/actual gap in the American civil justice system and its pernicious absence from our policy debates, scholarly literature and law school classrooms. Only when we face the truth can we truly be set free.

Cite as: Suzette M. Malveaux, Getting Real About Procedure: Changing How We Think, Write and Teach About American Civil Procedure, JOTWELL (June 9, 2021) (reviewing Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, 48 Hastings Const. L.Q. 261 (2021)),