Marcus Alexander Gadson, Stolen Plausibility, __ Geo. L. J. __ (forthcoming, 2021).
I often explain to my brilliant first-year law students that, unlike most of their education before law school, originality is not required, nor is it always rewarded. Creativity is certainly key to being a successful lawyer but hewing to convention is critical too. I recall my discomfort as a law clerk when I first copied and pasted a summary judgment rule paragraph from my judge’s prior order into the order I was drafting. It feels odd, but it is something we do in the legal profession. We borrow language, ideas, and arguments all the time.
Which is why Marcus Gadson’s Stolen Plausibility is so striking. Examining post-Twombly and Iqbal decisions, Gadson finds that plaintiffs have adapted by using other parties’ complaints and investigations to fill in the facts required for plausibility. This makes sense. In discrimination cases, for example, a plaintiff who cannot make it to discovery is unlikely to obtain the facts required to plead a plausible claim. Yet if other parties have already established key facts through an investigation, it makes sense for the aggrieved plaintiff to borrow those facts. There seems no good reason to re-invent facts just as there was no good reason for me to rewrite my judge’s standard summary judgment rule paragraph.
But Gadson finds that courts are suspicious of, and sometimes downright hostile to, plaintiffs’ efforts to “borrow” plausibility. Relying on Rule 12(f)’s authorization to strike immaterial language, courts have stricken what they believe are “stolen” facts, and then determined that the remaining facts fail to plead a plausible claim. Under Rule 11, some courts have determined that plaintiffs’ “stolen” facts are not reasonable, leading courts to issue sanctions.
Gadson challenges this response. First, lawyers and judges constantly borrow from each other. Singling out this borrowing as different is suspect. For example, courts allow parties to cite a reputable investigation by a newspaper or think tank in their complaints. Why not allow the same when the investigation is done by a government agency or similarly situated plaintiff? Second, courts justify using Rule 12(f) to strike borrowed facts because they would not be admissible as evidence and are therefore immaterial. But the admissibility of evidence does not matter on summary judgment (as long as the evidence can be distilled into admissible form by trial), so it should not matter on a motion to dismiss or a motion to strike. Finally, in many cases plaintiffs borrow the fruits of a government agency investigation (e.g., the EEOC); those investigations and the resulting facts belong to the public and should be available to individual plaintiffs.
Gadson acknowledges that judges have policy reasons for thwarting the use of “stolen” plausibility. Judicial economy is the primary concern. Judges may worry that if plaintiffs can simply ride other plaintiffs’ coattails, the cost of filing a lawsuit will become too low, the floodgates will open, and courts will be overwhelmed. The corollary to this concern is that it will be too easy for plaintiffs to file suits for the sole purpose of extracting settlements. But tools such as Rules 12(f) and 11 are hardly going to increase judicial economy. To the contrary, they will increase satellite litigation. Gadson acknowledges that “figuring out the optimal balance between discouraging unmeritorious litigation and encouraging meritorious litigation is difficult,” but argues that treating borrowed plausibility as stolen is a step too far. The system should deter “unscrupulous plaintiffs,” but it should also guard against “unscrupulous defendants” who use Rule 12(f) and Rule 11 to delay and defeat meritorious lawsuits.
A related policy concern is the legal profession’s fidelity to the notion that the smartest lawyer in the room deserves the win. This recalls Justice Jackson’s concurrence in Hickman v. Taylor, where he fretted about the less-bright lawyer stealing the wits (a.k.a. work product) of the brighter opposing counsel. It is a gunners-unite principle of law practice. But Gadson refutes that policy concern in this context. First, in many cases, the plausible facts are borrowed from a government investigation. These investigations are—by design—intended to benefit the public at large and not some paid, private interest. Second, the purpose of the justice system is not to assess who worked harder or better, but to assess who is right on the law. If the facts—no matter the source—are applied to the law and demonstrate the plaintiff is entitled to relief, justice is served.
Finally, Gadson concedes that some defendants may be less likely to settle cases if they understand that those facts can be used against them in follow-on litigation, a valid concern even if the settlement is generally not admissible before a jury. The public benefit of avoiding lengthy government litigation is significant. But Gadson wonders if this concern might be overblown. After all, not all courts prevent the use of borrowed plausibility, so defendants already take that risk. To better understand this policy implication, Gadson calls for further study.
Overall, this article is a great read about what is happening on the ground in the wake of Twombly and Iqbal. It is thoughtful and thorough, and it is fun to dig into Rules 12(f) and 11 in this context. The big takeaway for me though is that Gadson eloquently reminds us that judicial economy sits in tension with access to justice. Borrowing from one will often look like stealing to the other. It reminds us that justice is in the eye of the beholder. When those with power see a steal, I tend to see a borrow. But be sure to read the paper and decide for yourself.
Federal Rules Committees hold significant power. For example, a recent amendment to the Federal Rules of Civil Procedure that was approved by the Civil Rules Committee narrowed the scope of discovery—which of course, may affect the outcome of a case. In the rulemaking process, each Committee decides whether a proposed rule is considered and votes on whether to adopt it. While other bodies stand in the way of a rule becoming law (proposed amendments can be blocked by the Supreme Court or Congress), almost invariably a rule becomes law once a Committee adopts the rule.
This is why Professor Brooke Coleman’s article is so important. She analyzed all Committee memberships over its approximately 80-year history. She found 94% of the Committee membership has been white. 81% has been men. Perhaps the current Committees are much more representative, but Professor Coleman shows that is not the case. White people continue to constitute an inordinately high percentage of the committee at 92% and the Committees are largely male at 62%.
Professor Coleman shows that White people have been overrepresented on the Committees over time and currently. So, the Committees have been under representative and specifically in relationship to three different demographic comparisons—the US population, the legal profession and federal judiciary.
Men have also been overrepresented on the Committees over time. On the positive side, women are represented on the Committees roughly in proportion to their make-up in the legal profession and in the federal judiciary. Coleman contrasts this good news with the bad news—women of color make up only 4.6% of Committee membership in contrast with 11.9% of federal judges and 14.5% of lawyers.
As might be expected to follow, Committee leadership is also mostly white and male. 97% of chairpersons have been white and 88% men. Put in more stark terms, only 2 of 75 chairs have been people of color. Reporters—academics who take notes and do not vote, but can have influence—have largely been male and white as well. 97% have been white and 80% men.
Professor Coleman discusses why the demographics of the Committees matter. While she acknowledges that arguments may be made that Rulemaking is technical and thus, the demographics of Committee membership do not matter, Professor Coleman counters that rulemaking is not technical or neutral. In other words, whether or not particular rules are implemented can affect the outcomes of cases. The importance of this process is shown by the large number of comments and testimony on the proposed change to the scope of discovery—split largely along the lines of plaintiffs’ lawyers versus companies/defendants’ lawyers. As a result, the characteristics of Committee members, including the members’ ideology, politics, and identity, including sex and race, can affect whether a rule is adopted and thus the outcomes of cases.
In addition to describing why the composition of the Rules Committees matters, Professor Coleman discusses why the Committees have been so white and so male. She points out the history of discrimination against women and people of color in admissions and employment. She also emphasizes that the Chief Justice, who appoints members, uses a narrow nomination process.
Professor Coleman emphasizes three reasons why mostly white, male committees are problematic. First, participants in the legal system can question the rulemaking process. Second, the quality of the rules can be worse. Finally, this unrepresentative composition is contrary to the legal profession’s responsibilities to diversity and ethics. On the first point, she states as an example that criminal rules affect a larger percentage of the Black population yet Black people are inadequately represented on that Committee. For example, the Evidence Committee has never had an African-American member. On the second point, that the quality could be better, Coleman uses the established scholarship on diverse decision-making to show better decision-making is likely with increased representation.
Professor Coleman’s article is a gamechanger. She has pointed out through careful study that there is insufficient diversity on the Committees. This issue causes legitimacy concerns and, more importantly, the possibility that rules may be adopted or not—based on Committee membership—and that may determine who wins or loses, including if someone goes to prison or not.
Bringing a high level of expertise to this article—having served as the clerk to Judge David Levi when he chaired the Standing Committee—Coleman had the unique opportunity to see the process of Rules making in action and, now, can advise about what has happened and what should happen. So what now? It appears Professor Coleman may have had an effect already. Chief Justice Roberts appointed seven more female members of the Committees after her first article came out—going from 29% to 50%. What else is possible? Professor Coleman discusses the possible creation of a nomination committee by the Chief Justice. But this might have the tendency to draw from the same groups of people and create more of the same. Perhaps Professor Coleman should take the lead to help create committees to recommend people for the Committees. Diverse nomination committees will likely lead to diverse Rules Committees.
Peter Salib, Artificially Intelligent Class Actions
(December 16, 2020), __ Tex. L. Rev. __ (forthcoming), available on SSRN
The effect of artificial intelligence (AI) on legal services is one of the most pressing issues facing the profession and legal education. AI has enormous potential to improve efficiencies and reduce costs for clients across many fields, from due diligence to online dispute resolution. This potential renders AI a highly disruptive force in the legal profession. In The End of Lawyers, Richard Susskind asked whether lawyers have any future given the ability of machines to take on many of the tasks we once believed required human lawyers.
In Artificially Intelligent Class Actions, however, Peter Salib argues that in the field of class action litigation at least, AI may lead to more, not less, work for litigators. Salib explores the use of AI to manage large numbers of individual assessments of causation and harm among class members. Rule 23(b)(3) requires that common issues predominate over individual ones for a lawsuit to proceed as a class action. Thus, the need to prove individual causation in product liability cases, or to assess damages for thousands of class members, may be fatal to certification. In other words, some cases are too big to succeed.
Class counsel have attempted to overcome the predominance hurdle by using statistical methods to achieve rough justice for large classes. In effect, class counsel sought to replace an accurate but unattainable disposition of each class member’s claim with an efficient but imprecise one. The US Supreme Court famously rejected this approach, however, in Wal-Mart Stores Inc v Dukes.
Salib proposes that we overcome the problems of statistical sampling by using AI to deliver answers to individual questions that are both accurate and efficient.
He begins his methodical argument by identifying the principles behind the Court’s resistance to statistical proof in Wal-Mart. The plaintiffs proposed a trial plan based on statistical adjudication to avoid the necessity of determining each class member’s claim of unlawful discrimination and entitlement to backpay. A random sample of the class would have their claims adjudicated at the common issues trial, and the average results would be awarded to the rest of the class. The Court rejected certification because “trial by formula” was prohibited under Rule 23 and violated due process.
Salib, however, posits that the central concern in Wal-Mart was not so much about due process as it was about accuracy. After all, due process concerns do not trump other forms of aggregate proof—such as the fraud-on-the-market theory (pursuant to which individual class members are presumed to have relied on an efficient market once it is shown there was general market reliance) or regression analyses to quantify the harm of price-fixing. What drove the Court’s rejection of statistical sampling in Wal-Mart was that the methodology could not produce sufficiently accurate determinations of which class members had been subject to sex-based discrimination in promotion and pay.
Salib argues that AI can address the accuracy values animating Wal-Mart. Machine learning is not statistical sampling. Salib describes how “cutting-edge machine learning algorithms can be trained to provide high-accuracy, plaintiff-by-plaintiff answers to individual questions – like medical causation, individual discrimination, or reliance. They can accurately determine whether a particular class member – as opposed [to] the average one – relied, for example, on a fraudulent misrepresentation.”
The process goes something like this. A set of training data is collected. This is the data, such as decisions made by human adjudicators, that we want the machine to emulate. Algorithms then uncover complex correlations in the data, essentially ‘learning’ from the sample to emulate the decision-makers. The trained algorithm is then tested against another training dataset that was not used in the initial training process. If the algorithm reaches the same results as the human adjudicators did in this set, “the algorithm is likely to make accurate determinations about new cases – those for which the correct answers are not already known.”
Accurately predicting the outcomes of thousands of complex problems through AI is not new. Such advance machine learning is used to evaluate loan applications for creditworthiness and to help separating spouses make parenting arrangements and divide assets. Blue J, a company founded by two Canadian law professors, sells platforms trained on tax, employment, and other case law to predict decisions in these domains with over 90% accuracy. Their products are so accurate that even the Canadian government has begun using them to assist Department of Justice employees.
It is not unreasonable, therefore, to use the same machine learning in class actions where individual determinations threaten to overwhelm the common issues and thereby scuttle certification. For example, a sample set of judgments about causation made by an actual judge or jury at the common issues trial could become the training set for producing the algorithmic determination of claims across the class. In other words, “the algorithm would simulate, with high accuracy, the jury’s determination about whether each individual class member could show medical causation.” The unmanageability of individual proof – the downfall of many a class action under Rule 23(b)(3) – ceases to be an issue. Certification cannot be denied on the basis that individual issues predominate over common ones.
AI’s promise is perhaps most evident in class action settlements. By making class-wide adjudication possible, AI increases the chances of certification, thereby increasing the settlement value of the case. The ability to more accurately evaluate the value of each class member’s claim will also facilitate negotiations and promote settlements. And while Salib does not mention it, machine learning can revolutionize the complicated, costly, and time-consuming claims processes prevalent in many approved class action settlements. An AI-facilitated claims process could make efficient decisions that avoid both underpaying and overpaying members of the class.
Salib predicts and persuasively responds to a number of critiques of his argument. Might the parties aggressively dispute algorithmic design? Yes, but unlike other battles of experts, this one can be tested by applying the competing designs to a hold-out set of training data to see which generates more accurate results. Would algorithmic answers to individual questions be rebuttable, and if so, would wars of attrition be waged vis-à-vis these answers? Unlikely, because the cost of litigating such challenges would be prohibitive compared to the amounts in issue, which would be small given the slim margin of error in machine-generated outcomes. Can we trust machines to make decisions that do not entrench discriminatory bias in the justice system and in society as a whole? Salib is optimistic. Because AI class actions permit the party to whom the algorithm will be applied (i.e., class members, via class attorneys) to have a say in the design of the algorithm and to participate in the creation of the training data in the form of the evidence they adduce at trial, the risk of potential bias is minimized. The argument is familiar in class action literature: class attorneys’ financial incentives to maximize trial awards and settlement amounts should ensure the interests of class members are protected, including in the design and generation of training data.
The prevailing approach to Rule 23’s predominance requirement prevents many important class actions from being certified. The result is that most of these cases do not get litigated, given the high cost of individual litigation, among other barriers. For class actions to realize their true potential in delivering access to justice for mass harms, these cases, often involving important personal injury claims, must be resolvable by collective means. Individual issues are inevitable, but they are only fatal when they must be adjudicated in a time-consuming manner.
Salib shows AI’s promise to convert this expensive, lengthy process of individual assessment into an efficient and accurate one. To date, the best that class actions have had to offer is rough justice, if any at all. AI-facilitated class actions hold out the hope that the justice system can do much better than that.
As the saying goes, we live in partisan times. This makes it easy to succumb to the delicious allure of Manichean partisanship. Legal scholars are not immune from this temptation. Some identify with one side or the other, advocate for one party or the other, espouse one political agenda or the other. But this moment urges us to think about the role of legal academics in a civic discourse. What is our function? How can we contribute to make the important discussions happening around the country more productive, informed, lasting, inclusive, reasonable, and effective? At a time when the legitimacy of many other institutions is seriously questioned, what is our role in shaping how people view lawyers, courts, and the rule of law?
I thought of these themes when reading Symeon Symeonides’s Choice of Law in the American Courts in 2020. It is the 30th time that Symeonides has canvassed developments in conflict of laws doctrine and summarized the year’s developments in the field. The stated purpose is “to inform, rather than to advocate.” To do so, Symeonides casts a wide initial net, reading hundreds of cases that touch upon conflict of laws topics. Year after year. The surveys highlight key developments in the field, as well as broader trends. This is an immense amount of work and provides a significant benefit to many scholars, practitioners, and judges. The survey also represents a different model of legal scholarship than the standard law article fare, providing food for thought about the many roles of legal scholars.
Symeonides’s surveys are well-known and used for numerous purposes. One is providing a fundamentally descriptive account of diverse and dispersed developments in an amorphous field. Descriptive work is sometimes demeaned as intellectually less rigorous than high-flying theory. Perhaps such a view is understandable in fields with ample knowledge of the legal world. But in many other areas, we still lack broad and reliable accounts of what is happening out there. In such environments, surveys can lay invaluable groundwork for subsequent research. This type of survey work relies on reading many, many cases. Perhaps that is also a practical though toilsome technique to negotiate the conflicting risks of the tyranny of the anecdote and the tyranny of big data.
Symeonides’ descriptive work highlights recent developments and departures in conflict methodology while explaining where the law remains stable or is stabilizing. This is helpful in a field where many cases are not explicitly labeled as conflict cases. The survey also explains developments in specific subject matters that have seen important cases. His “Methodological Table” exemplifies the approach—an overview chart of the main choice-of-law approaches followed in the States, the District of Columbia, and Puerto Rico. Introduced with many caveats and asterisks, it is still a surprisingly useful tool for newcomers to the field to orient themselves and to acquire an initial feel for the lay of the land.
To ensure this essay does not become a Mini-Festschrift, let me examine some areas where the survey might have room for improvement. The clearest place is the use of tables and charts to “depict the growth of conflicts cases” over the last thirty years. These sections do not discuss at length the potential for selection effects and data availability effects. As such, they might leave hasty readers with an impression of developments in the law without a corresponding measure of confidence and reliability. Elsewhere, it is clear that the descriptive approach of the survey is aspirational, although I suspect readers vary as to whether they appreciate or disregard occasional editorializing. Commentaries that stray from pure description push the surveys closer to an annual Restatement of the Law, with all attendant tensions. Predictably, readers’ receptiveness will vary.
Despite these caveats and tensions, Symeonides has done a great service to the field with his surveys. This is certainly not the only way to practice legal scholarship and much would be lost if it were. But it is one important, while perhaps neglected and undervalued, model of how to contribute. Symeonides is not the only legal academic engaged in this type of project. But this type of work represents, at least on this continent, a diminishing fraction of what legal academics do and what they are rewarded for doing. Maybe it is time to re-evaluate that.
A final reason to read this contribution is that it is Symeonides’ last survey. Beginning next year, John Coyle, William Dodge, and Aaron Simowitz will assume this role. The survey is in good hands and I look forward to seeing how they will build and develop upon the strong foundations that Symeonides has laid out with such care and dedication.
Thomas O. Main, Jeffrey W. Stempel, & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism
(Aug. 17, 2020), available on SSRN
Who are the most textualists federal judges (at least in the context of “snap removal”)? Thomas Main, Jeffrey Stempel, and David McClure conclude that they are younger, Republican-appointed, white, female judges who attended elite universities. This conclusion is but one of many important insights their empirical work offers to the continuing snap-jurisdiction debate.
For the uninitiated, snap removal is a proper (or improper) exercise of federal removal jurisdiction, depending upon your approach to statutory interpretation. The primary federal removal statute allows a state-court defendant to remove a case to federal court when it otherwise could be brought in diversity jurisdiction. One exception to this scheme, the forum-defendant rule, bars removal “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Because the statute requires the forum defendant to be both joined and served, in many states there is a window of time in which the forum defendant is joined but not yet served, during which the non-forum defendants may attempt removal. That is to say, these non-forum defendants may be able to remove if they do it as quick as a snap.
While snap removal pre-dates the Internet era, the digital age has sharpened this practice. Wealthy defendants have access to state-court-docket tracking software that empowers snap removals at breakneck speed. This practice quashes the power of the forum-defendant rule by swift action, gutting the intent of the Congress to leave suits with in-state defendants in state court. The lower federal courts—especially district courts, given the non-appealability of remand orders—have split on whether to allow such snap removals; the prevailing view, as shown in a different work by these authors, is that they are permissible.
This split offers insight into the statutory-interpretation practices of federal district court judges. While many (likely rightly) argue that the textualism-vs-purposivism dichotomy does not often animate the actual day-to-day work of the lower federal courts, the snap-jurisdiction question presses the issue. The plain text of 28 U.S.C. § 1441 allows for snap removal, yet the unquestioned intent of the Congress in drafting it in 1948 was to prevent plaintiff gamesmanship in removal and to strengthen the home-forum-defendant rule, not weaken it. As Main, Stempel, and McClure put it, “applications of this statute require either a hyper-literal reading that flouts Congressional intent or a purposive reading that evades crystal-clear text; there is no middle ground.” Thus, judges facing a snap-removal question are forced to pick either the textualist or purposivist team, unless courts turn to a creative understanding of textualism and the statutory mischief rule. In important ways, then, the snap-removal question is a proxy for a judge’s commitment to textualism or purposivism.
Main, Stempel, and McClure take on the empirical question of determining how this team-picking shakes out in the lower federal courts. In so doing, they offer necessary detail as to where snap removal occurs most often (California, Pennsylvania, and New Jersey), whether snap removals are increasing or decreasing (they are increasing), whether snap removals are becoming more or less successful (more successful), and whether the type of case matters (tort claims are more likely to be removed successfully than contract claims). These findings alone render this paper worth a serious look.
But for me, the most interesting insights spoke to the identities of the judges most likely to allow snap removal. Which is to say, assuming one accepts the snap-removal question as a proxy for textualist or purposivist interpretive commitments, the authors offer deep insight as to who is on which team. Making no pretense of conveying all the nuance that they offer in this short essay, they find the following:
- Republican-appointed judges are more likely to be textualists, and Democratic-appointed judges are more likely to be purposivists.
- Female judges, appointed by either party, are more likely to be textualists than male judges.
- Younger judges, appointed by either party, are more likely to be textualists than older judges.
- Elite-university credentialed judges correlate with a commitment to textualism by Republican-appointed judges and with a commitment to purposivism by Democratic-appointed judges.
To be sure, some of these findings, like the party of the appointing president, are not surprising. But I found the gendered nature of a commitment to textualism unexpected and interesting. Similarly, the disordinal interaction for attendance at elite educational institutions was unexpected and worth pondering.
This paper raises much to consider beyond snap-removal data. To take just one question: Does this data show that gender diversity on the bench impacts outcomes in measurable ways in matters having (at least on their face) little to do with gender equity? I do not wish to suggest that the authors attempt to squeeze more and grander conclusions from their empirical findings than they can support. Nevertheless, many scholars, such as Christina Boyd, find such an impact. But these studies have focused on discrimination cases—not dusty issues of jurisdiction. I finished Main, Stempel, and McClure’s paper supporting the call to diversify the bench more strongly than I had before reading.
What an unexpected result from an empirical study of snap removal. And all the more reason you should read this piece straight away.
Cite as: Lumen N. Mulligan, What Does a Textualist Look Like?
(February 18, 2021) (reviewing Thomas O. Main, Jeffrey W. Stempel, & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism
(Aug. 17, 2020), available on SSRN), https://courtslaw.jotwell.com/what-does-a-textualist-look-like/
Alyssa King, Global Civil Procedure
, __ Harv. Int’l. L. J. __ (forthcoming 2021), available at SSRN
Remember when civil procedure was making headlines? Dozens of courts relied on familiar procedures to dismiss meritless lawsuits lacking proof or factual support. The Supreme Court dashed President Trump’s hopes of a judicial reversal of fortune by relying on standing to reject Texas’s attempt to have the Court exercise original jurisdiction over its suit against Pennsylvania and other states. While Trump and his affiliates complained that cases were being dismissed based on “technicalities,” those dismayed by Trump’s attempt to subvert the election rejoiced that civil procedure did its basic job of protecting justice.
These recent events—and more recent ones—provide a striking backdrop for Alyssa King’s Global Civil Procedure. Surveying procedural developments in litigation and arbitration around the world, King reveals an overlapping consensus in how institutions handle civil dispute resolution. She demonstrates a growing consensus on what procedure governs civil dispute resolution around the world but cautions that this seeming harmony conceals fundamental disagreements over what procedure is for, and thus differences in what procedure can and should do in different political contexts.
King defines global civil procedure to “include the procedural rules, practices, and social understandings that govern international litigation and arbitration.” Reading this definition, you might think that global civil procedure would be an eclectic combination of different procedures. But varied tribunals have adopted “global civil procedure norms,” norms “adopted across courts or arbitration providers with the purpose of making that jurisdiction or provider more competitive in attracting transnational litigation or arbitration.”
By identifying the international dispute resolution community’s convergence on certain global civil procedure norms, the article makes (at least) three important contributions that are worthy of the attention of those interested in domestic or international litigation or arbitration (or both!). These insights are also revealing for students of democracy, judicial independence, and the interaction between courts and politics.
First, King provides a useful frame for understanding the current state of transnational dispute resolution and the receding importance of U.S. courts. She notes the convergence of certain procedural norms across both arbitration and litigation. She focuses on three cases studies, demonstrating similarities in norms about the importance of decisionmaker independence, discovery, and the ability to aggregate claims across transnational litigation and arbitration. Notably, this convergence happens across modes of adjudication and geographic boundaries. King identifies an emerging “common language” about procedural values such as efficiency and impartiality.
Second, King questions the theory that competition among dispute-resolution forums will lead to a race to the top and an agreement on best practices. According to that theory, parties with choices about where to duke out their disputes will choose the forums with the most efficient rules—especially if the parties must agree on that forum in advance through a contractual forum-selection clause. King doubts that rosy account, while recognizing that courts and arbitral tribunals often adapt their procedures with that competition in mind.
The market hypothesis, King argues, relies on three assumptions: (a) parties actively choose a particular forum for its procedures, (b) that choice represents revealed preference, and (c) that preference chooses efficiency. But none of these assumptions holds true across the board. For example, because certain actors, (e.g., lawyers who practice transnationally) are often the vehicles for spreading procedural norms across different legal systems, these actors may choose some procedures for their familiarity, as much as, if not more than, for other qualities. For example, when English lawyers advise the Kazakh government about how to set up a new international commercial court in the Astana International Financial Centre, they may draw upon “international best practices,” but they identify English common law practices as the best. The argument is circular, of course, since Kazakh officials hired these lawyers for their English common law expertise. But King is right to point out the blurriness between “best” practices and practices that may be “most familiar” to a certain elite set of lawyers. This is not to malign those elites’ preferences, but to demonstrate that they are neither universal nor unbiased.
Global civil procedure thus provides a useful perspective for viewing other kinds of procedural reform. Drawing inspiration from Brooke Coleman’s work on the Efficiency Norm and One Percent Procedure, King pays attention to who pushes for reforms and who stands to benefit. She identifies a wide range of actors—including international lawyers, clients, litigation funders, adjudicators, and institutions—as the drivers of global civil procedure and explains the convergence of these norms through the lens of their interests. With these insights, King adds to the growing literature on procedural convergence and harmonization around the world, casting doubt on and adding perspective to the law-market narrative used to explain procedural reform.
Third, and perhaps most interestingly, at least to a wider audience, King appreciates the limits of convergence. Procedural “[r]ules that seem to do similar things, [and] for which similar rationales are given,” may “still ultimately reflect divergent and likely incompatible understandings of what adjudication is for.” Political context matters, as seemingly similar procedural rules can sustain and support different kinds of states.
A prime example is judicial independence—a key feature of the legitimacy, authority, and fairness of the U.S. legal system and a topic of recent debate. U.S. courts adopt strong norms and rules to avoid conflicts of interest, so the judge does not have an inappropriate relationship with or bias towards one of the parties. Separation of powers, life tenure, and other constitutional structures are supposed to ensure the independence of federal judges.
It may surprise lawyers raised on this account of judicial independence to learn that this account plays an important role in the socialist legal tradition. When considering judicial independence, King therefore urges us to ask “independence from whom and to do what.” In Communist East Germany, for example, independence sometimes meant “responsiveness to the ‘right’ external interventions,” namely, supporting prevailing party policy; after all, socialism began with the idea that “law had to serve the interests of the proletariat,” which were represented by the Party. Because politics changed quickly in East Germany, “for many judges, ‘the safest way to go forward was to make no decision at all.’” (Note the similarities between using the “passive virtues” of judicial restraint in the U.S. system to avoid disrupting an election and using judicial restraint in the socialist system to avoid interfering with political party control.) Similarly, recent Chinese legal reforms promoting judicial independence tend to create institutional independence from local government and local Communist Party entities, but in a way that helps the centralized Communist Party retain its control.
We might think of global civil procedure as akin to standardization of the metric system or the international postal system. It makes life easier for professionals working across borders and captures professional views of what “good” dispute resolution procedure looks like. This coordination has considerable benefits.
But convergence also has its limits. In stark contrast with American idealization of procedure as a protector of justice, King emphasizes that “global civil procedure is … not a vehicle for deeper harmonization on issues such as democracy, or even liberalism.”
When I originally drafted this jot, King’s insight made me worry about whether we are too quick to celebrate procedure as protecting American democracy against President Trump’s baseless allegations of election fraud. From one perspective the procedural protections of Rule 12(b)(6) and standing doctrine stopped legal assaults on the election. From another perspective, however, these doctrines simply allowed courts to avoid deciding.
Of course, recent events demonstrate that victory in the courts is not always the end of the story. King teaches that the commitments of judges who implement procedure and their ability to withstand political pressure can direct procedure’s power. But that takes us only so far. It is a lesson worth considering on the domestic and global levels—and in a broader political context.
Bryan Lammon, An Empirical Study of Class-Action Appeals
(2020), available at SSRN
Modern class-action scholarship needs more myth-busting. Class-action narratives—for and against aggregate litigation—have spurred decades of procedural reform, from the 2005 Class Action Fairness Act to amendments to Federal Rule of Civil Procedure 23. Scholarship rarely interrogates whether the reality of class-action practice aligns with these narratives. This leaves a potential gulf between scholarship and practice. Bryan Lammon’s An Empirical Study of Class-Action Appeals contributes to the growing body of research aimed at bridging this gap.
In this work in progress, Lammon debunks myths about class-action appeals. The function of Rule 23(f) is clear enough: it permits interlocutory review of class-certification decisions, creating a carve out to the final judgment rule. Certification is a pivotal procedural point in the life of a class action. If a case is not certified, its value is limited to the damages sought by the named class representatives. If it is certified, the value of the case jumps to cover all potential class members.
Since its enactment in 1997, however, Rule 23(f) has been somewhat of an enigma. While the rule’s function and rationale are straightforward, its potential impact on certification is murkier. As Lammon details, Rule 23 engenders discontent from both plaintiffs and defendants. Plaintiffs fear the rule advantages defendants by increasing the reversal of certification decisions. On the other hand, “[d]efense-side interests contend that the courts are inconsistent in applying Rule 23(f) and that the rule insufficiently protects defendants from the pressure to settle.”
To assess the legitimacy of both critiques, Lammon created a new dataset of all federal class-certification appeal petitions from 2013-2017. The article provides foundational information about the volume of appeals and general grant and denial rates. These findings are compelling given the roughly 850 petitions underpinning the article. But Lammon’s deeper data dives make the biggest contributions.
He addresses the criticisms against Rule 23(f) under two dimensions: “party effects” and “circuit effects.” The findings as to each dimension are surprising—and encourage a degree of hope when many scholars (including me) have lamented the demise of class actions. On circuit effects, the article concludes that appeal results differ minimally by circuit, though not enough to conclude there is any particular circuit bias. As for party effects, the article dissects whether the party seeking the appeal affects the outcome. Lammon finds reversal rates split evenly by party, thus minimizing concerns that interlocutory appeals favor defendants. This finding means there is “at least one corner of the class-action universe in which plaintiffs are not predominately losing.”
Instead, the true burden of Rule 23(f) is its bearing on the time and resources necessary to litigate class actions. Lammon explains that “allowing parties to petition for review of class-certification decisions can add to the cost, delay, and difficulty in adjudicating class actions.” The appeal process is a protracted one, extending the life of a class action anywhere from 80 to 828 days. Defendants thus are the long-term beneficiaries of interlocutory review—win or lose on appeal.
Empirical work, though necessary to understand procedure in application, is a risky endeavor. It is easy to overstate claims or flirt with unnecessarily complex statistical wordplay to increase the findings’ appeal. Lammon avoids both potential pitfalls. Throughout the piece, he encourages readers to draw their own conclusions while subtly spelling out potential deductions. He is also refreshingly willing to acknowledge the limitations of his findings. For example, he concedes that the party effects results may differ if one considered the particular practice area or remedy sought in each petition.
Further, Lammon is clear—at times delightfully chatty—about some of his decisions in applying statistical models to his work. This transparency helps with the perspicuity and pacing of the piece, which is a fast read despite its depth. The detailed methodology, spelled out in the text and accompanying appendices, allows future scholars to replicate and expand on his findings. This is another notable often unacknowledged contribution that the Article offers class action scholarship.
Lammon’s article made me question my own assumptions about the effect of Rule 23(f). It also made me wish, dang it, that I had thought to write the article. Admittedly, it is better that he did. It is a great read, one I will likely return to many times.
Thomas D. Russell, Frivolous Defenses
(Aug. 17, 2020), available at SSRN
From the mid-1980s through the turn of the twenty-first century, tort reform advocates, corporate entities, politicians, and lobbyists have raged about an alleged plague of frivolous lawsuits clogging state and federal dockets. In what perhaps might be characterized as revenge of the plaintiffs’ bar, Thomas Russell has turned the table and written the first systematic study of frivolous defenses. This provocative article, which has raised the ire of insurance defense attorneys, is worth reading as a compelling counterpoint to the frivolous lawsuit narrative.
Russell is a torts professor and plaintiffs’ attorney in Colorado. Based on his experience representing plaintiffs in auto accident litigation, Russell concluded that “Sometime after the first-year civil procedure course, insurance defense lawyers learn to ignore the rules of civil procedure when filing answers to lawsuits.” In handling client cases, insurance defense attorneys repeatedly frustrated Russell with the paucity of their responses to the averments in his complaints. Trial judges frustrated Russell by denying his motions concerning the inadequacy of defense responses.
Russell anchors his discussion in Nora Freeman Engstrom’s scholarship on “settlement mills.” He notes that Engstrom’s scholarship demonstrates how plaintiffs’ lawyers participating in settlement mills engage in routinized practices, conduct little factual investigation, and take shortcuts to achieve the quick settlement of small cases. Russell’s article crosses from the plaintiffs’ side of the docket to examine the work of insurance defense lawyers in auto accident lawsuits who respond by filing boilerplate, largely non-responsive answers to plaintiffs’ averments. As titillating as studies of plaintiffs’ lawyers may be, additional study of the plaintiffs’ side without a correlative look into defense work perpetuates a distorted view of tort litigation. His study of insurance defense practices is intended to provide this balance.
The heart of the paper is an in-depth empirical study of the Colorado state court docket in 2015, focusing on auto accidents occurring between 2012 and 2015. Approximately ¼ of Colorado car crashes result in personal-injury claims, comprising the highest proportion of personal-injury cases in the state. He examined answers in 355 cases, focusing on defense lawyers’ responses to plaintiffs’ averments in their complaints and cataloguing how defense attorneys’ responses departed from the rules of procedure when answering.
The centerpiece of Russell’s analysis is compliance—or non-compliance—with Colorado Rules of Civil Procedure 8(b) and (c). Colorado Rule 8(b) directs a defendant to state in short and plain terms their defense to each of the plaintiff’s claims by admitting, denying, or indicating a lack of knowledge or information sufficient to form a belief as to the truth of an averment. Like its federal counterpart, Colorado Rule 8(c) permits defendants to assert affirmative defenses.
Russell argues that in replying, defense attorneys fail in their professional obligation to conduct the adequate investigation required by Rule 11 prior to responding, as well as frustrating plaintiffs’ ability to obtain useful information to advance their litigation
First, defense lawyers routinely fail to respond to plaintiffs’ averments by stating that an averment “calls for a legal conclusion,” a response not recognized by, and thus contrary to, the rules. Second, defense attorneys fail to admit information concerning co-defendants, an evasion not authorized by any rule or privilege. Third, defense counsel routinely assert that a “document speaks for itself,” a boilerplate response that evades Rule 8’s clear path. Finally, Russell documents the boilerplate laundry list of affirmative defenses asserted by insurance company defendants, many of which are clearly unmeritorious or fantastical.
Russell’s hero is the late federal Judge Milton Shadur of the Northern District of Illinois, one of few federal judges to balk at defense lawyers’ boilerplate responses that evade Rule 8 and its goal of providing meaningful information to plaintiffs. Discussing Rule 8(b) of the Federal Rules of Civil Procedure, the counterpart to the Colorado rule, Judge Shadur insisted that too many lawyers “feel a totally unwarranted need to attempt to be creative by straying from that clear path.” He complained of defense attorneys’ “pervasive and impermissible flouting of the crystal-clear directive” of the rules for responsive pleadings.
Russell argues that his analysis parallels Engstrom’s, insisting that insurance defense attorneys engage in similar mill-style practices. He makes a sweeping indictment: Defense lawyers engage in routinized practices; conduct little or no pre-answer factual investigation; ignore factual investigations that claim agents have conducted; ignore the rules of civil procedure; take purposive, obstructive actions that defeat the fact-finding goals of pleading; and likely delegate legal work to paralegals, thereby violating the Rules of Professional Conduct. In the final analysis, Russell’s remix of Engstrom’s scholarship is his recommendation to law professors “Don’t Let Your Law Students Grow Up to be Insurance Defense Mill Lawyers.”
A federal judge is accused of misconduct and an investigation begins. Before the investigation has concluded, though, the judge leaves her post. What happens next? Does it create an accountability gap, and if so, how much should that concern us? These are the questions that Veronica Root Martinez takes up in Avoiding Judicial Discipline.
This topic is timely and important in light of the crisis of accountability in the modern federal judiciary. Federal judges’ work is high in status and low in transparency, in the sense that social and professional norms give them a great deal of power but allow them to operate mostly out of public view. Those conditions create fertile ground for sexual harassmentand other forms of misconduct, yet the federal judiciary has largely been left to police itself. Federal judges are exempt from workplace misconduct laws such as Title VII. Congress has the authority to impeach and remove them, but in 230 years, the House of Representatives has impeached fifteen judges and the Senate has removed eight.
Martinez focuses on the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, which offers one of the few mechanisms through which allegations of judicial misconduct can be addressed. The statute gives the judicial council of each federal circuit authority to investigate allegations and impose discipline when appropriate. But that authority extends only to judges serving within the circuit. If a judge leaves the circuit’s bench before the investigation is complete, the statute’s grant of jurisdiction evaporates and the matter ends.
Martinez uses three recent examples to demonstrate that short-circuited investigations are not merely theoretical. Maryanne Trump Barry was serving on the Third Circuit when it initiated an investigation into allegations that she had engaged in tax evasion. Shortly after receiving formal notice of the investigation, she retired, ending the investigation. Alexander Kozinski was serving on the Ninth Circuit when it initiated an investigation into allegations that he had sexually harassed several of his law clerks. He retired days later, so the investigation never even got off the ground. Brett Kavanaugh was serving on the D.C. Circuit when allegations became public that he had committed sexual assault while he was in high school. The circuit received several complaints connected to those allegations, but because he left the circuit to become an associate justice of the Supreme Court, all were dismissed.
These examples are well-chosen, and Martinez draws on them to make concrete various flaws in the status quo. A judge with unadjudicated allegations of misconduct can continue to draw a pension equal to her full salary; since her retirement, Barry has continued to receive a judicial pension in the neighborhood of $200,000 per year. Retirement from a judicial post does not equate to retirement from the profession; it might be followed by the practice of law (as with Kozinski) or another judicial position (as with Kavanaugh). Any misconduct that goes unaddressed in one forum might appear again in another.
Systemically failing to address misconduct creates systemic problems, and even as she draws on the lessons of individual instances, Martinez remains focused on that broader view. The failure to complete investigations into judicial misconduct allegations can contribute to a public perception that judges are above the law. The judiciary’s only real authority comes from the public’s faith in it; as Martinez puts it, “who will obey a judiciary that fails to police itself?” That failure of self-policing can also put judges on an ethical slippery slope, under which a judge might not notice his behavior worsening over time. As that deterioration occurs, it might become normalized among the judge’s peers as his standard operating procedure—an open secret perhaps, but not one that other judges feel compelled to do anything about.
Systemic problems require systemic responses, and Martinez offers several. She proposes modifying the Judicial Conduct and Disability Act, to confer authority to complete an investigation after a judge leaves the circuit and to make clear that the inquiry could address whether the judge should remain eligible to receive a pension.
Failing legislative reform—and Martinez is not optimistic on that front—each circuit’s chief judge and judicial council should adopt a “custom of referral” for every non-frivolous complaint they receive. Under this custom of referral, a circuit would simultaneously forward a complaint to Congress and to any state bar to which the accused judge belongs. The congressional referral would be designed to prompt an inquiry into the appropriateness of impeachment proceedings. Although a judge who has retired cannot be removed from the bench, Congress could evaluate whether the former judge should be eligible to receive a pension or serve in a similar federal office in the future. The state bar referral would be designed to prompt an investigation into potential violations of the rules governing attorneys’ professional conduct. Although some judges do not belong to any state bar, some intend to practice law after leaving the bench, so those proceedings could have real teeth.
Martinez covers a lot of ground in this essay, but she does not purport to address all of the situations that might leave allegations against a federal judge unadjudicated. For example, how should the death of a judge affect an investigation into allegations of misconduct? That situation looms large in my mind, because I clerked for Stephen Reinhardt. He sexually harassed Olivia Warren, who was clerking for him at the time of his death in March 2018. Warren tried to report the misconduct through formal and informal avenues, from former Reinhardt clerks to the federal judiciary’s Office of Judicial Integrity, but they (and we) failed her at every turn.
When the allegations became public, some objected that they risked damaging the judge’s reputation for no real benefit. Martinez discusses similar objections. She sees them as consistent with what she refers to as “weak civility”—the idea that judges and lawyers should be mannerly with each other and that allegations such as these are somehow unmannerly. But as Martinez powerfully argues, we should be more concerned with “strong civility,” which prioritizes interpersonal respect and the proper functioning of the judicial branch. That version of civility counsels in favor of a full accounting of any misconduct that has occurred.
Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb, Supreme Court Practice
(11th ed. 2019).
Seventy years ago, Robert L. Stern and Eugene Gressman published the first edition of Supreme Court Practice, intended “to set forth in a single volume . . . as close as possible to everything, outside of the field of substantive law, that a lawyer would want to know in handling a case in the Supreme Court.” For generations, the treatise (known most commonly as “Stern and Gressman”) was an indispensable staple on every Supreme Court practitioner’s bookshelf (and, rumor has it, the bookshelves of more than a few Justices). The new and improved eleventh edition—published late last year and authored by the late Stephen M. Shapiro (to whom it is dedicated), Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb—drives home why: For an institution governed as much by formal and informal norms as it is by rules and statutes (for instance, the settled—but unwritten—understanding that it takes four Justices to grant a writ of certiorari), an accurate, accessible guide to both the written and unwritten rules of the road was an obvious necessity.
More than that, the authors of SCP were (and remain) in an open and behind-the-scenes dialogue with the Supreme Court Clerk’s Office and the Justices themselves. Questions raised in earlier editions have provoked formal and informal rule changes at the Court, and the editions, in turn, have attempted to keep up with formal and informal developments at One First Street. Indeed, a cursory search for citations to the treatise in reported Supreme Court opinions returns 90 hits, from 1957 to this summer. Simply put, SCP has become more than just a practitioner’s guide; it has become a font of institutional knowledge for an institution that is, notoriously, anything but transparent. And it is a one-stop shop for those trying to figure out all kinds of arcane but potentially significant historical tidbits—such as the last time a Justice heard oral argument in chambers (“apparently” in 1980). In that sense, SCPhas become a necessity for students and scholars of the Court as well.
All of that goes to why SCP is singularly useful. But perhaps the biggest surprise to those who pick it up for the first time is that it is readable, straight through, in ways that most treatises aren’t. That is to say, although the book’s signature value is as a desk reference, later editions have increasingly—if unintentionally—become a textbook for a coherent course (self-taught or otherwise) on “how the Supreme Court conducts its business.” In the tradition of Felix Frankfurter and James Landis’s 1928 tome on The Business of the Supreme Court, someone trying to better understand the Court today (and how it has evolved) could simply march through SCP’s 20 chapters (albeit perhaps skipping the last one—on bar admissions and disbarment), and come out with a deeper understanding of the Court’s practices than (dare I say) even the Justices themselves.
And that is where the eleventh edition really shines. It does not just smooth the Court’s rough edges and provide guidance for everything from the mundane to the macro; it provides ever more of a window into an increasingly significant part of the Court’s substantive work: what Will Baude has labeled “the shadow docket,” i.e., the (growing number of) significant rulings that the Justices hand down through orders—especially those granting or denying applications for stays, injunctions, and other forms of emergency relief.
To be sure, for as long as the Court has existed, it is had a procedural docket. As Ross Davies noted, Congress required a lone Justice to sit for a rump Term every August from 1802 to 1839—to dispose of, among other things, any pending procedural matters that did not require the full Court’s attention. But there’s no denying that Justices’ rulings on orders have drawn more attention in recent years—or that they have become more controversial. In October 2020 alone, in the run up to the November elections, the Court handed down 10 shadow docket rulings on applications to grant (or lift) lower-court stays pending appeal, eight of which provoked public dissents. During the October 2019 Term, 11 shadow docket rulings alone provoked four public dissents, compared to only 12 of the Court’s “merits” cases. Simply put, the Justices are doing more to disrupt the status quo in the lower courts pending appeal than they ever have before; their machinations are provoking more disagreements than they ever have before; and (almost) all of this is happening without any opinion for the Court explaining why the Court is ruling the way it is in a particular case—let alone where this broader uptick is coming from or why.
To be sure, the eleventh edition of SCP does not purport to answer these questions. But as much as any other source, it provides a fair amount of evidence and a whole bunch of clues—from the Court’s quiet move to a “continuous” Term in 1979 (which allowed the full Court, rather than a single Justice, to resolve contentious applications even during the summer); to the increasing frequency with which all contentious applications have been referred to the full Court; to the slow but steady decline of in-chambers arguments and opinions; to the subtle shift in how at least some of the Justices have applied the traditional four-factor test for emergency relief. To their credit, the authors do not draw specific conclusions from these individual data points. But they make it possible for others to do so—and to attempt to draw broader lessons from patterns that would be all-but impossible to even see without their efforts.
Critically, though, the shadow docket comes into clearer view thanks to a specific slice through SCP’s 1600 pages, especially its chapter devoted to stays, injunctions, and bail. And although increased popular and academic attention focuses on the shadow docket today, it could shift to another hitherto esoteric aspect of the Court’s work tomorrow—especially if conversations about judicial reforms become more than hypothetical in 2021. Whatever happens, SCP will surely remain first among equals when it comes to legal treatises—as comprehensive and accessible a guide to the actual workings of the Supreme Court as is reasonably possible, and one that already does, and should, provide real value and insights to far more than those of us who consider ourselves SCOTUS nerds. And for that, we owe a debt of gratitude to Stern, Gressman, and their contemporary successors.