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Is Personal Jurisdiction Constitutionally Self-Enacting?

A. Benjamin Spencer, The Territorial Reach of Federal Courts, __ Fla. L. Rev. __ (forthcoming 2019), available at SSRN.

Federal Rule of Civil Procedure 4(k) generally limits the scope of a federal district court’s personal jurisdiction to that of the state in which it sits. We have this paralleling of state- and federal-court personal jurisdiction despite the fact that the Fourteenth Amendment limits only the states’ exercise of personal jurisdiction while it is the Fifth Amendment that presumptively regulates the federal exercise of that same power. Building upon this distinction, Benjamin Spencer, in his dual role as a preeminent procedural scholar and member of the Judicial Conference Advisory Committee on Civil Rules, argues that we should decouple federal and state court personal jurisdiction doctrine. You should give this short, but thought-provoking, essay a read not only because Spencer is one of the top proceduralists writing today, but because you could well be working with his revised Rule 4(k) soon.

Spencer defends a radical redrafting of Rule 4(k), suggesting as follows: “All process other than a subpoena may be served anywhere within the territorial limits of United States. Nothing in these Rules limits the personal jurisdiction of a district court.” Under his proposal, federal courts would take personal jurisdiction by engaging in an International Shoe analysis that focuses upon contacts with the nation as a whole—not merely contacts with the state in which the federal court sits, as is the case under current practice.

The basic premise of Spencer’s nationwide-contacts approach has great intuitive appeal. The contacts analysis under International Shoe focuses upon the relationship between the defendant and the relevant sovereign that empowers the court with authority. In state court, one rightly focuses on contacts between the forum state and the defendant, as the forum state is the relevant sovereign. By analogy then, in federal court the International Shoe contact analysis should focus upon contacts between the nation as a whole and the defendant, as it is the nation as a whole that acts as the relevant sovereign in such an instance. The Supreme Court flirted with the notion that nationwide contacts are relevant in a Fifth Amendment International Shoe analysis in the past, most prominently in Justice Kennedy’s concurring opinion in J. McIntyre Machinery v. Nicastro and leaving the question open in other cases. But it has failed to reach a holding on this issue.

Spencer lays out several policy goals that his proposal would achieve. His revised Rule 4(k) eliminates the current state of affairs in which different federal district courts possess differing scopes of personal jurisdictional authority merely because they sit in different states. Eliminating this non-uniformity enhances efficiency, consistency, and predictability in civil litigation. His revised Rule 4(k) ensures that a federal forum exists in every state for the adjudication of civil suits that have federal subject matter jurisdiction. His revised Rule 4(k) avoids Rule 12(b)(2) dismissals of prima facie valid claims, which otherwise have subject matter jurisdiction and proper venue in federal court, where the forum state takes a different approach to personal jurisdiction. Finally, this nationwide personal jurisdiction approach is easier to understand and apply than our current forum-state-linked analysis.

Spencer provides a forceful rebuttal to potential Erie-based concerns with his approach. He acknowledges that his revised Rule 4(k) would create an outcome-determinative difference that could induce forum shopping among state and federal courts. Nevertheless, Spencer notes that the Supreme Court does not treat outcome determination as a talisman and, moreover, Erie has never been applied to jurisdictional analyses.

Finally, Spencer contends that his proposed revisions do not require an Act of Congress. Relying upon his past work, Spencer argues that current Rule 4(k) is ultra vires under the Rules Enabling Act. The REA prohibits the Supreme Court from promulgating rules that speak to subject matter or personal jurisdiction. Current Rule 4(k) must go, in Spencer’s view. The beauty of revised Rule 4(k) is that it does not speak to personal jurisdiction at all; rather, his revision takes the Rules “out of the business of delimiting the jurisdictional reach of the federal courts.” In Spencer’s view, with the current jurisdiction-delimiting version of Rule 4(k) struck, the federal district courts would have self-enacting personal jurisdiction flowing from the Fifth Amendment because he concludes that “federal courts do not require statutory authorization to exercise territorial jurisdiction over litigants.”

It is at this last step—Spencer’s posited self-enacting personal jurisdiction authority for federal courts flowing from the FifthAmendment—that procedural scholars should stay tuned. If we were discussing the Fourteenth Amendment’s regulation of the state’s ability to take personal jurisdiction, most would agree that personal “jurisdiction is not self-executing” and that federal due process does not compel states to open their courts. The crux of Spencer’s argument is that personal jurisdiction in federal court should not be analyzed under the Fourteenth Amendment analysis, but the Fifth Amendment. Hence, he has room to make his contention.

This is not to say that we have a consensus that the Fifth Amendment self-enacts personal jurisdiction authority for the federal courts. Far from it. We face a dearth of case law on this Fifth Amendment point. And at least one scholar, in another great new article, takes the opposite position from Spencer on this point.

I, for one, look forward to Spencer’s continued work on this very question of self-enacting personal jurisdiction authority for federal courts. It is bound to be a fascinating dialogue.

Cite as: Lumen N. Mulligan, Is Personal Jurisdiction Constitutionally Self-Enacting?, JOTWELL (May 7, 2019) (reviewing A. Benjamin Spencer, The Territorial Reach of Federal Courts, __ Fla. L. Rev. __ (forthcoming 2019), available at SSRN), https://courtslaw.jotwell.com/is-personal-jurisdiction-constitutionally-self-enacting/.

Accountability Requires Tenacity

Law Clerks for Workplace Accountability, Public Comment On The Judicial Conference of the United States’ Proposed Changes to the Code of Conduct for U.S. Judges and Judicial Conduct & Disability Rules.

In 2017, United States District Court Judge Lynn H. Hughes of the Southern District of Texas mused, “It was a lot simpler when you guys wore dark suits, white shirts and navy ties… We didn’t let girls do it in the old days.” The Assistant U.S. Attorney appearing before Judge Hughes that day, Tina Ansari, believed Hughes’ comments were aimed at her, something Hughes disputes. The Fifth Circuit reversed the judge’s merits decision in Ansari’s case. It also scolded the judge for his courtroom remarks, calling them “demeaning, inappropriate and beneath the dignity of a federal judge.”

Fast forward to 2019. Judge Hughes summarily dismissed Ansari from his court. She appeared in his court four days later. Again, without explanation, he dismissed her. His reason? Judge Hughes—still smarting from the Fifth Circuit’s comments—explained that “Ms. Ansari is not welcome here because her ability and integrity are inadequate.”

This story may sound like an unusual example of one female lawyer’s unfortunate experience with one federal judge. I and many other women are here to tell you it is not. Undoubtedly, plenty of members of the judiciary have positive and respectful relationships with the women with whom they work. At the same time, as with any profession, the federal judiciary is not immune to sexual harassment, gender discrimination, and complicity in an environment that creates fertile ground for those behaviors. Recently approved changes to the Code of Conduct for U.S. Judges and Disability Rules represent a recent effort to improve the judicial workplace for women. Important Public Comment from Law Clerks for Workplace Accountability (“LCWA”) represent the kind of tenacity necessary to ensure real change takes place.

In 2017, Heidi Bond and Emily Murphy first went on the record about Ninth Circuit Judge Alex Kozinski’s harassment of them as law clerks. Following their courageous act, other clerks came forward, and Kozinksi resigned. In response, Chief Justice Roberts acknowledged that even the federal judiciary was going to have its #MeToo moment. In his 2017 annual report, Roberts explained that he had appointed a working group to undertake a “careful evaluation of whether [the judiciary’s] standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate to ensure an exemplary workplace for every judge and every court employee.”

In 2018, James Duff, the Director of the Administrative Office of the Courts, formed the Federal Judiciary Workplace Conduct Working Group, comprised of eight judges and court administrators. Although former-law-clerk reports of sexual harassment inspired the creation of this group, no current or recent former law clerks were members. This oversight inspired a group of former law clerks to form LCWA. LCWA contributed to the Working Group’s work, but it never had a seat at the decision-making table.

In June of 2018, the Working Group released its report, which made three broad recommendations: (1) revise the judiciary’s existing codes of conduct; (2) improve procedures for reporting inappropriate behaviors; and (3) increase efforts to educate and train judges and other employees. The LCWA lauded many aspects of the Working Group’s report, including its recommendation that the Judicial Conference create a national Office of Judicial Integrity. Yet, it had its criticisms as well, namely that the report’s proposals were often vague.

In September 2018, and in response to the Working Group’s report, the Judicial Conference published changes to the Code of Conduct for U.S. Judges (“Code”) and the Judicial Conduct & Disability Rules (“Rules”). Like the Working Group’s report, there was much to commend. Revised Canon 3 provides that judges “should not engage in behavior that is harassing, abusive, prejudiced, or biased.” The Rules define cognizable misconduct as including “engaging in unwanted, offensive, or abusive sexual conduct, including sexual harassment or assault.” Finally, Canon 3 now states that judges should take appropriate action when learning of these types of behaviors, whether that behavior be from a fellow judge, a court employee, or lawyer.

The LCWA celebrated the progress made, but identified numerous deficiencies. The LCWA’s work is thorough, so I will summarize a few of the critical shortcomings it brings to light.

First, neither the Rules nor the Code provide a mechanism for reporting charges of judicial misconduct to the Administrative Office. There are no apparent mechanisms to track any reports made to the AO. This leaves the AO and the judiciary unable to assess and appreciate the scale of the problem before it. At the very least, the revised provisions should provide for mandatory reporting and tracking of misconduct charges. Only then, as the LCWA points out, will the judiciary “better understand the scope of the problem and how best to remedy it.”

Second, and relatedly, the provisions regarding public disclosure of misconduct are weak. If a complaint is dismissed because a judge resigns, no public disclosure is required. If the complaint is settled privately, public disclosure is prohibited. But we know that hiding sexual harassment allegations is a conduit to their repetition. While the Conference’s desire to protect judges is understandable, that concern should be outweighed by the judiciary’s obligation to maintain the public trust. This kind of transparency, including not just reporting individual claims but also aggregate annual reporting of misconduct allegations, the LCWA argues, is required to restore that trust.

A final critique of the Code and Rules goes to the heart of the process. The Rules provide that the judges will regulate themselves. When an allegation of misconduct is made, the Rules allow for a judge or group of judges to both investigate and adjudicate the charge. As the LCWA points out, there are myriad problems with this approach in the context of sexual harassment charges. Judges are not trained to investigate these types of claims. Victims are unlikely to feel comfortable sharing their experiences with a judge. Investigation and adjudication are two distinct strands of the process, and the lack of clarity in the revised rules about how to separate the two will lead to confusion. The LCWA argues that there should be an independent process to evaluate claims.

In addition to the LCWA comments on the Code and Rules, the group reiterates its concerns from earlier comments that remain unaddressed. These include a request to create a national, confidential reporting system for harassment claims; establishment of a standing body within the AO to assess and examine whether these (and other) changes are working; and a requirement—not an option—that all federal courts address the issue of harassment. Most paramount in the LCWA comments, in my opinion, is that there has been no reckoning. Much of the response to the 2017 accusations has been forward-looking, which is a good, but not enough. The LCWA asks that the AO conduct a climate survey of court employees to get a real sense of workplace experience. Only then can the judiciary “understand how harassment has been allowed to flourish in the past and how prevalent misconduct currently is.”

The LCWA’s tenacity is making a difference. In the 2018 Year-End Report, the Chief Justice again addressed the judiciary’s work in ending “inappropriate conduct in the workplace.” He updated us on progress—the Working Group, the revised Code and Rules, and new Federal Judicial Center training materials. He admitted that the work is not done, stating that “[t]he job is not finished until we have done all that we can to ensure that all of our employees are treated with fairness, dignity, and respect.” The Chief Justice is taking this issue seriously and understands only a dent has been made. The LCWA is to be commended for holding the judiciary’s feet to the fire. Their work honors the brave individuals who have already stepped forward and helps to protect those court employees who may endure treatment yet to come to light.

Cite as: Brooke D. Coleman, Accountability Requires Tenacity, JOTWELL (April 23, 2019) (reviewing Law Clerks for Workplace Accountability, Public Comment On The Judicial Conference of the United States’ Proposed Changes to the Code of Conduct for U.S. Judges and Judicial Conduct & Disability Rules), https://courtslaw.jotwell.com/accountability-requires-tenacity/.

Plea Bargaining with Juveniles

Erika N. Fountain & Jennifer L. Woolard, How Defense Attorneys Consult With Juvenile Clients About Plea Bargains, 24 Psych. Pub. Pol'y & L. 192 (2017).

Criminal cases—or for that matter civil ones—don’t go to trial any longer. For a variety of reasons, in criminal matters, plea bargaining has replaced trials. This has occurred in both juvenile and adult cases.

Most juvenile and adult cases differ significantly, however. The justification is the alleged purpose of juvenile courts to rehabilitate youth. This rehabilitation supposedly involves the judge as an understanding, parent-like mentor to the child.

Because plea bargaining effectively bypasses this process, the study of plea bargaining’s effect on youth is particularly important. Currently, the special procedures in juvenile court—such as confidentiality—have led to little check on the prosecution of youth. This has resulted in some bad consequences including the false detention of children, as illustrated in the Kids for Cash documentary.

Erika Fountain and Jennifer Woolard have endeavored to study the plea-bargaining process for juveniles. Their article is part of a series of work, some of which is included in a dissertation.

In the article, the authors describe the results of interviews with defense attorneys who represent juveniles. Before detailing these conversations, they cite some of the literature that shows the difficulty of decision-making by youth who undergo significant change during their childhood. They also point out that, though youth are under the control of their parents, they must independently decide whether to a take a plea. Attorneys can make this situation more palatable. Previous research has shown, however, that juveniles are overly swayed by their attorneys’ recommendations.

This article is the first to study the strategy that attorneys use with juveniles when giving them advice about plea bargains. Attorneys are specifically tasked with the job of preparing their clients to make “knowing, intelligent, and voluntary plea bargain decisions in juvenile court.” In their study of juvenile plea bargaining, the authors focus on a single public defender office on the east coast. Studying one office permitted them to limit variation among lawyers by keeping consistent matters such as caseload. In the semi-structured interviews, the authors asked the eighteen participating lawyers questions regarding the plea process, questions about their most recent client, and general questions about working with juveniles.

So much about juvenile plea bargaining can be learned from this important study. For example, prosecutors made most plea offers on the day of trial such that lawyers reported lacking sufficient time to discuss the offers with their clients. The authors recognize that these circumstances are problematic. I would argue that they necessitate action by the states—specifically, the enactment of laws requiring juveniles be given sufficient time to consider plea offers particularly to ensure that they understand them. Indeed in the context of age discrimination there is a law that requires older people be given a certain amount of time to decide whether to take a severance agreement. In the current context of youth losing their freedom, I would argue that at least some similar protections should be put into effect.

The authors also describe the timing of the lawyers’ discussion of certain subjects with their juvenile clients. It was interesting to learn that many lawyers did not discuss what clients were giving up until after they decided to take a plea. Additionally, only about a quarter of the lawyers described collateral consequences to their clients, such as the possibility of limited educational opportunities and job prospects if they pled guilty.

Also studied were the top reasons for juveniles taking pleas. They included to avoid incarceration and to prevent having to see witnesses testify against them. Additionally, two more reasons were mentioned—to avoid the time a trial would take and to avoid prosecution in adult court. The latter, which was reported by 22% of the lawyers who were interviewed, is highly problematic for its coercive nature.

The study also describes different approaches to how possible pleas can be discussed with youth. In explaining these approaches, the lawyers in the study acknowledged their significant influence over their client’s decisions and juveniles’ general inability to look into the future very far.

The authors conclude that policy changes need to be considered. These include additional time for a youth to consider a plea offer along with an approach to ensure that the juvenile understands the plea offer and the possible consequences.

This is an extremely important study that may incentivize states to require prosecutors to slow down plea bargaining in the juvenile context. If the states are serious about the so-called rehabilitative process for juveniles, they should deliberately and carefully proceed with plea bargaining with youth.

Cite as: Suja A. Thomas, Plea Bargaining with Juveniles, JOTWELL (April 9, 2019) (reviewing Erika N. Fountain & Jennifer L. Woolard, How Defense Attorneys Consult With Juvenile Clients About Plea Bargains, 24 Psych. Pub. Pol'y & L. 192 (2017)), https://courtslaw.jotwell.com/plea-bargaining-with-juveniles/.

When American Pipe Met Erie

Stephen B. Burbank & Tobias Barrington Wolff, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018).

The White House is engulfed in scandal. Prosecutors and congressional investigators tighten their net around a beleaguered President and his inner circle. A constitutional crisis looms, and our nation’s faith in the rule of law hangs in the balance.

As the legal and political drama of our current moment unfolds, it remains to be seen whether today’s Supreme Court will play the same role that it was called upon to play in 1974. The current Court has, however, immersed itself in another 1974 classic: the eponymous tolling rule of American Pipe & Construction Co. v. Utah. Twice in the past two years, the Court has revisited American Pipe tolling: first in California Public Employees’ Retirement System v. ANZ Securities, Inc. (CalPERS) and then in China Agritech, Inc. v. Resh. In the wake of these decisions, Steve Burbank and Tobias Wolff provide a comprehensive and much-needed exploration of “the source, reach, and limits of the tolling rule for federal class actions that originated in American Pipe.” They persuasively argue that the Supreme Court has lost its way, misperceiving the underlying rationale and purpose of American Pipe tolling.

Under American Pipe, the commencement of a class action in federal court tolls the statute of limitations as to all purported class members. This tolling rule means that would-be class members need not overwhelm courts with precautionary individual lawsuits (or motions to intervene in the putative class action) solely to avoid a time bar in the event the federal court denies class certification. And in cases where the federal court does certify a class action, American Pipe means that class members may opt out—a right guaranteed for Rule 23(b)(3) class actions—without fear of their subsequent suits being time-barred.

Burbank and Wolff contend that American Pipe is a federal common law rule that aims to effectuate the provisions and policies of Rule 23. They support this view with a sophisticated examination of the doctrinal thicket that encompasses Erie, Hanna, the Rules of Decision Act (RDA), and the Rules Enabling Act (REA). On their account, the Federal Rules of Civil Procedure have the status of “Acts of Congress” for purposes of the RDA’s allowance that a federal court need not follow “[t]he laws of the several states” when “Acts of Congress otherwise require.” Federal courts, therefore, may “carry into effect the policies of Federal Rules of Civil Procedure through judge-made federal common law.” Properly understood, Rule 23 is not the direct source of American Pipe’s tolling rule—that view could be problematic under the REA and its provision that Federal Rules of Civil Procedure “shall not abridge, enlarge, or modify substantive rights.” Rather, Rule 23 is the source of authority for a federal common law tolling rule—the tolling rule that the Court has articulated in American Pipe and its progeny.

In support of this argument, Burbank and Wolff distinguish between three distinct types of federal judicial lawmaking. One type concerns only “the internal administration of federal court adjudication.” This kind of lawmaking—federal forum non conveniens law is an example—has no preemptive effect in state court proceedings. A second form (sometimes called “substantive” federal common law, although Burbank and Wolff resist that nomenclature) directly addresses “questions of liability or regulatory policy” in areas of “uniquely federal concern,” or where needed to resolve “competing claims of interested states.” This kind of federal common law is binding in both federal court and state court, and it preempts contrary state law.

American Pipe tolling falls into a third category—one that “aims to preserve and promote the provisions of and policies underlying a procedural rule by shaping the behavior and rights of parties in both the same and subsequent proceedings.” Burbank and Wolff point to federal preclusion law—as the Supreme Court described in Semtek—as another example of this third category. Although federal common law will usually borrow state-law preclusion rules for cases that are in federal court based on diversity jurisdiction, “a federal preclusion standard might be necessary to enable district courts to enforce procedural policies like those found in the discovery rules in cases where borrowed state preclusion law would not adequately do so.” This third kind of federal common law can displace contrary state law but in a different way than “substantive” federal common law. States are not obligated to follow American Pipe for class actions filed in state court. They need not allow class actions at all. But state courts must recognize—and state law must defer to—the tolling effect of a federal class action.

Burbank and Wolff then explore the potential distinction between the following kinds of federal class actions that would be the basis for American Pipe tolling: (1) federal class actions based on a federal cause of action with a federal statute of limitations and (2) federal class actions pursuing state-law claims over which federal courts exercise diversity jurisdiction. The first category is in the “wheelhouse” of federal judicial lawmaking. Even for the diversity-jurisdiction class actions, however, Burbank and Wolff argue that subsequent courts—including state courts—must recognize the tolling effect of the federal class action under American Pipe’s federal common law rule. The only situations where a contrary tolling rule provided by state law should apply would be where that state rule is “unambiguously more generous than the suspension rule of American Pipe,” or—perhaps—where there is established state law that “would unambiguously afford absentees in the federal class action adequate time (whether more or less than suspension) either to seek to intervene or to bring independent actions if certification is denied or they opt out of a certified class.”

Finally, Burbank and Wolff turn to the Supreme Court’s recent decisions in CalPERS and Resh. They are especially critical of CalPERS, a 5-4 decision holding that the 3-year deadline imposed by Section 13 of the 1933 Securities Act was a “statute of repose” to which the American Pipe tolling rule does not apply. The CalPERS majority mistakenly viewed American Pipe as a form of “equitable tolling,” based on an “impoverished account of the sources of federal law” and a failure to appreciate the true justification for American Pipe—to carry into effect the provisions and underlying policies of Rule 23. Such a rule of federal common law is distinct from rules based on the power of federal courts to apply general principles of equity.

The Resh decision is—at least partially—“an improvement on the missteps the Court made in CalPERS.” Although Burbank and Wolff take no position on Resh’s ultimate conclusion that American Pipe tolling does not apply to successive class actions, they applaud the Resh Court’s recognition that the American Pipe tolling rule is driven by the “policies of ‘efficiency and economy of litigation’ bound up in Rule 23.” Resh is a “mish-mash,” however, because it also made problematic references to equitable tolling and failed to emphasize the particular need to preserve opt-out rights in Rule 23(b)(3) class actions. In the final analysis, Resh “leaves considerable room for improvement in future cases,” but there is also cause for modest optimism in that Resh “can be read as shifting the primary focus back to the policies of Rule 23.”

There may be more chyrons on today’s screens (and more screens, period), but the parallels between today and 1974 are hard to ignore. Burbank and Wolff provide a compelling critique of the Supreme Court’s contemporary reboot of American Pipe. Their article is a must-read contribution whether readers are interested in the specific relationship between class actions and statutes of limitations or in broader questions about the sources, scope, and propriety of federal judicial lawmaking.

Cite as: Adam N. Steinman, When American Pipe Met Erie, JOTWELL (March 26, 2019) (reviewing Stephen B. Burbank & Tobias Barrington Wolff, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018)), https://courtslaw.jotwell.com/when-american-pipe-met-erie/.

A Primer on Opioid-Epidemic Litigation

Abbe R. Gluck, Ashley Hall, & Gregory Curfman, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, 46(2) Journal of Law, Medicine & Ethics 351–366 (2018), available on SSRN.

Susan Sontag documented how illness becomes metaphor, wrapped in “punitive or sentimental fantasies.” The bubonic plague is no longer a mere disease but an instrument of wrath and moral judgment on the failings of a community. A popular mythology morphed tuberculosis into a romanticized episode afflicting the reckless, poor, sensual consumed by their repressed passions. Cancer turns into the disease of the capitalistic affluent; AIDS becomes a social category to punishing deviance. In these cultural myths disease expresses and causes character and thus contains moral judgment. Disease becomes shameful, a stigma to hide and wrap in guilt. Sontag argued that such myths can survive irrefutable human experience and medical knowledge. Treating illness as metaphor is obviously dangerous and misguided. Sontag calls on us to de-mystify illness and become resistant to metaphoric thinking.

The illness of our time is the opioid epidemic. We are in the process of characterizing and metaphorizing it. Litigation plays an important role in this process. As the debate about (oh what to call it?) non-party/national/universal/cosmic/high-volume/prospective-repetition injunctions has reminded us, to give something a name is to classify it and with that classification comes conceptual and normative baggage. Opioid litigation similarly continues to be part of a definitional battle. Is this about an epidemic, crisis, loss of moral fiber, white middle-class decline, crime-wave, plague, or something else? Litigation and procedural vehicles lean on these different conceptions and, in turn, shape how we view that thing out there in the world.

I was reminded of the problem of categorization and Sontag’s account when reading Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis. The article is an excellent primer on the role of courts in “impos[ing] blame–and with it, enduring responsibility” for the harm caused by the opioid epidemic.

There is no quick way to describe the despair and destruction brought upon communities by the opioid epidemic, but let me offer three crude reference points: Overdose deaths are higher than deaths from H.I.V., car crashes, or gun violence at their peaks. Hundreds of thousands suffer from opioid dependence and impairment. Many states and counties warn that they are absurdly inundated with opioids. For example, multiple Indiana counties claim that they have more opioid prescriptions than residents. Ohio claims that in 2012 (long before the peak of the opioid epidemic), pharmaceutical companies shipped to Ohio enough opioid doses to supply every last man, woman, and child in the state with 68 pills each.

Gluck et al.’s article is a useful starting point for scholars interested in one of the most shocking public health crises of our time, one that is being litigated in courts across the country. The opioid epidemic is massive, diffuse, and multifaceted, at once nearby and often hidden and remote. Litigation related to the opioid epidemic is complex and constantly evolving. It involves hundreds of cases from around the country, spanning multiple decades, using different procedural vehicles, and raising thorny substantive and procedural questions.

For people not familiar with the twists and turns of this litigation, Gluck et al.’s article offers a valuable guide. Beyond shining a spotlight on this important and perhaps overlooked topic, it makes numerous additional contributions.

First, it provides an overview of the cast of players. The article highlights a changing and expanding cast of plaintiffs and defendants. The illegal purchase of a single OxyContin pill in the hallways of a high school is the endpoint of a long chain linking pharmaceutical companies, distributors, doctors, pharmacies, and patients to federal regulators, state agencies, local law enforcement, and local harm. Gluck et al. identify the actors in the opioid litigation as well as their substantive claims, defenses, and litigation strategies. The article also provides a useful primer on the numerous difficulties of proving causation and implementing relief.

Second, it provides an account of the history of civil opioid litigation. In a first wave of lawsuits, pharmaceutical companies largely avoided liability, public disclosures, and admissions of wrongdoing by shifting blame to users and prescribing doctors. As the authors point out, “stigma against addiction . . . played a key part in the success of drug manufacturers in defending themselves in these suits.” They detail how the first wave of opioid litigation ended when Purdue Pharma agreed to pay $600 million in criminal and civil fines to the federal government and nearly $20 million to 26 states and the District of Columbia; three executives pleaded guilty to criminal charges; and Purdue admitted to misbranding by falsely advertising. This settlement, though big, pales compared to the colossal cost of opioid abuse. A second wave of litigation is under way, predominantly driven by state and local governments with a broader cast of defendants and novel legal claims.

Third, the article provides a helpful and perhaps inevitable comparison between opioid litigation and tobacco litigation. The authors are skeptical whether the former can use the latter as a strategic blueprint, repeat its successes ($250 billion recovered), and avoid its failures (use of settlement funds to compensate for general state budget shortfalls). Tobacco litigation involved fewer defendants, a clearer causal account, and no FDA approval. And in contrast to some opioid use, tobacco, in contrast to some provides no medical benefits.

Fourth, the article is attuned to the pivotal role of procedure. It highlights how class actions in the first wave failed because courts focused on the unique medical history of each user and varying medical providers, thus defeating commonality claims. In contrast, the current wave is dominated by the decision to consolidate hundreds of opioid cases in federal multidistrict litigation under a single judge.

This article is not without flaws, but it accomplishes its goals efficiently and elegantly. It provides a timely and balanced account that is mindful of the practical costs and opportunities of the opioid litigation. Most importantly, the article reminds us about all the work that remains to be done. A rich menu of pressing procedural questions awaits exploration. I hope that Gluck et al.’s article will spark a new generation of procedural scholarship on opioid litigation that will help to de-mystify the underlying epidemic and inoculate us against punitive metaphors and stigma.

Cite as: Roger M. Michalski, A Primer on Opioid-Epidemic Litigation, JOTWELL (March 7, 2019) (reviewing Abbe R. Gluck, Ashley Hall, & Gregory Curfman, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, 46(2) Journal of Law, Medicine & Ethics 351–366 (2018), available on SSRN), https://courtslaw.jotwell.com/a-primer-on-opioid-epidemic-litigation/.

In Praise of Non-Partisan Law Reform of Class Actions

Class actions remain a work in progress in many jurisdictions around the globe. Several amendments to Federal Rule 23 took effect on December 1, 2018, after more than four years of deliberation by the Advisory Committee on Civil Rules. The Ontario Law Reform Commission is in the final stages of an eighteen-month comprehensive review of class actions, the first in the class action statute’s history in that province. Likewise, the Australian Law Reform Commission recently submitted its report to the Attorney General recommending amendments to its class action procedure, while the Victorian Law Reform Commission’s report on Litigation Funding and Group Proceedings was tabled in the Victorian Parliament in June 2018. Efforts at legislative reform in the United States, however, have stalled. No doubt to the considerable relief of the plaintiff bar, sweeping changes to class action procedure introduced by a Republican Congress in the Fairness in Class Action Litigation Act of 2017 (FICALA) will not come to pass, as the bill failed to advance in the Senate prior to the end of the previous Congress and Democratic control of the House of Representatives in the new Congress.

Still, the appetite for reforming class actions remains, not least among corporate interests eager to capitalize on legislative efforts to cut regulations and curb litigation. Anticipating that reform efforts will continue and FICALA will reappear in reincarnated form, Howard Erichson usefully dissects the proposed amendments in Searching for Salvageable Ideas in FICALA, one of six papers published as part of a symposium at Fordham Law School entitled “Civil Litigation Reform in the Trump Era: Threats and Opportunities.” FICALA represents “the most aggressive attempt in recent memory to dismantle the apparatus of mass litigation through procedural reform.” Introduced less than three weeks after President Trump took office and passed by the House along party lines, FICALA appears to be less about improving judicial efficiency or updating an outmoded procedure than a “defendant-driven effort to reduce liability exposure by making it difficult for plaintiffs to aggregate claims.” While most of the bill has little to commend itself to Erichson and other class action experts, a few proposals have the potential to improve the litigation process. In his essay, Erichson discusses the irredeemable and the salvageable ideas in the reform bill, both in convincing fashion.

Erichson identifies three principal reasons why most of the bill is highly problematic. The bad proposals either (1) are solutions in search of a problem; (2) address real problems in an ill-conceived way; or (3) target issues better solved by the courts, not Congress. He then discusses the few laudatory aspects of the bill.

One of FICALA’s most draconian provisions would prohibit class certification unless the plaintiff “affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative” (H.R. 985 §103(a)). Requiring identical harm among class members would eliminate many appropriate class actions, such as those on behalf of consumers and employees, just because the degree of harm between them may differ. Rule 23 already requires that common issues predominate and that the class representative be typical of the class; there is no good reason to deny certification solely because class members suffered non-identical harm. Indeed, with certification having become more difficult for plaintiffs in the past decade, a stricter test for certification purports to solve a problem that does not even exist.

In the second category of defect is the proposed prohibition on determining or paying class counsel fees until all class members are paid. According to Erichson, at best the proposal “represents a clumsy effort to defer the determination of class counsel fees until after the value of the remedy is known.” An absolute prohibition on the payment of even interim fees would create problematic incentives to negotiate settlements with short claims processes even where a longer process would be appropriate.

A proposal to impose strict limitations on who may serve as a representative plaintiff falls within Erichson’s third category. Class action reform in the United States can take place in three different ways: by the courts’ rulemaking committees; in the development of case law as issues percolate in the appellate courts; and through Congress. Procedural reforms linked to federal substantive statutes are within Congress’ institutional role. Procedural reforms not connected to subject matter jurisdiction, however, are more properly the purview of deliberative rulemaking bodies or appellate consideration in the context of live disputes. Concerns about conflicts of interest between class representatives and class counsel, for example, are better left to the discretion of the judge looking at the relationships and the circumstances of a particular case, whereas legislative intervention may impose an unnecessarily rigid rule.

Despite its many flaws, FICALA contains a few salvageable ideas. Erichson discusses three – reforms to class counsel fees, class settlement reporting, and subject matter jurisdiction – but devotes the most attention to the first. He recognizes that reforms that aim to improve class actions for class members (as opposed to entrepreneurial attorneys or defendants) are the least likely to be represented in judicial rule-making processes. I would add that class member interests are also unlikely to be pressed by political lobbyists, which is why the fee provisions in FICALA represent the most promising and nonpartisan aspects of the bill. Plaintiff attorneys’ and defendants’ interests align to the extent that both prefer expedient settlements. As a matter of brute economics, the “best way to incentivize class counsel to negotiate remedies of real value to class members is to link fees to what class members get.” Too often, however, class counsel obtain a fee based on the face value of a settlement that differs significantly from the actual value to the class, due to coupon settlements, large (and unnecessary) cy près awards, or low claims rates attributable to a flawed distribution process. Determining the true value of a settlement may require waiting until the end of the distribution process, followed by a report to the court. Erichson would not defer all fees to the end of that process, as contemplated under FICALA, but he proposes interim fee payments following a periodic accounting of the settlement distribution. He also would include appropriate cy près remedies for the purpose of calculating counsel’s fee. Erichson’s proposal makes sense; it’s very similar to one that I have advocated in my own jurisdiction’s reform efforts and an approach adopted by several Canadian judges.

Erichson persuasively argues that most FICALA provisions are draconian, “driven not by a desire to assure fair and prompt recoveries, but rather by a desire to make recoveries difficult for all plaintiffs in class actions.” With equal conviction, he makes the case for supporting legislative reform that would improve class actions for the people they are meant to serve: class members. It’s an idea worth salvaging.

Cite as: Jasminka Kalajdzic, In Praise of Non-Partisan Law Reform of Class Actions, JOTWELL (February 28, 2019) (reviewing Howard M. Erichson, Civil Litigation Reform in the Trump Era: Threats and Opportunities Searching for Salvageable Ideas in FICALA, 87 Fordham L. Rev. 19 (2018)), https://courtslaw.jotwell.com/in-praise-of-non-partisan-law-reform-of-class-actions/.

Building a Better Mousetrap

Christopher Hodges & Stefaan Voet, Delivering Collective Redress: New Technologies (2018).

A series of mostly hostile Supreme Court and court of appeals decisions, combined with the Court’s unwillingness to rein in boilerplate arbitration clauses in consumer agreements, has led a number of scholars to proclaim that class actions are dead, or at least dying. While appreciating that this framing puts the unquestioned decline of class actions into stark relief, I have been skeptical of the narrative. The recent amendments to Rule 23, for instance, show that policymakers still believe that class actions have salience, and the myriad state-court class actions that fly beneath the jurisdictional radar of the Class Action Fairness Act belie the class action’s demise.

In some retellings of the “class actions are dying” narrative, the ironic suplot is the rise of class-action practice in the rest of the world. Until recent years, only countries with a common-law heritage employed class actions, and even among those countries, only the United States used them with regularity. Over the past ten to fifteen years, however, many countries (I recently counted almost forty, and I was not attempting a comprehensive survey) have established some form of class or collective action. The terms of these processes vary across numerous measures: who can bring suit, for what types of claims, whether members must opt in or may opt out, and so on. But the moral of the subplot is that, just as American courts are moving away from one of the signal features of American procedural exceptionalism, the rest of the world is embracing the device.

The new volume from Hodges and Voet throws some shade on this subplot, and at the same time adumbrates a future in which class actions might indeed wither away.

Although the European Commission recommended in 2013 that Member States develop collective-redress procedures, the recommendation went out of its way to take swipes at the “toxic cocktail” of incentives that fueled the American class action. The European view of the American class action is a nasty caricature of its worst features: greedy lawyers, abusive discovery, and cowering corporations pitchforking millions of dollars at meritless settlements to prevent juries from plunging companies into bankruptcy. The Commission’s message was: “Collective redress, yes; American class actions, most decidedly no.”

But consensus on this point dissipated when the rubber met the road. The authors document the post-2013 failure of Member States to agree on basic matters of class-action or collective-redress design. As a result, the results of collective-redress litigation have been unimpressive so far and the future effectiveness of such litigation is likely to be limited.

More important, those captivated by the rise of class actions in other countries may be neglecting a phenomenon that is bubbling up at the same time: a wide range of new mechanisms to resolve mass disputes, of which class actions or class-action-like devices are only one. Focusing on the responses of EU Member States to the problem of collective redress, the authors describe this welter of responses. The devil is often in the details, and this book is chock-full of case studies from European countries. Aided in their effort by rapporteurs from Member States who presented their findings at a series of conferences, the authors group these responses into four broad categories: collective actions (class actions and their ilk); criminal prosecutions that, among their sanctions, generate compensation orders for victims; regulatory mechanisms that seek to modify putative injurers’ future behavior (whether through influence or coercion) and that may include compensation as part of the regulatory response; and ombudsmen, who work in conjunction with regulatory agencies to process claims, provide information feedback designed to modify injurers’ behavior, and advocate for necessary changes in legislation or other regulatory rules.

In evaluating these options as they have played out in the EU over the past decade, the authors are enthusiastically disposed to the latter two options, particularly when the ombudsman has a full toolbox of remedial options that includes compensatory mechanisms for consumers and techniques to influence or coerce industry. The latter options are not an either-or choice. As the authors describe, the regulatory and ombudsmen models have been married in a number of high-profile cases to provide redress and prevent recurrence of improper behavior.

Ombudsmen, which act as alternative dispute resolvers en masse, earn the lion’s share of the authors’ praise. Ombudsmen enjoy “a number of strengths and few weaknesses.” Strengths include an automatic opt-in procedure for consumers who contact the ombudsman, the capacity to treat like cases alike, the ability to notify companies and affected consumers of common issues, and the power to resolve those issues on a classwide basis without binding consumers to the resolution. The process is also free to consumers (with companies or government agencies footing the bill) and faster than judicial resolution.

In contrast, the authors are cool to litigation options, like class actions, for corrective redress.

They seek to convince the reader of their conclusions along two paths. The first is descriptive: they lay out the successes and limits of each approach in the countries and cases in which they have been tried, often with accompanying data. The second is theoretical (a term the authors may not like, so perhaps functional is a better word): the principal goals of collective redress to consumers are compensation and influencing behavior to prevent similar conduct in the future. On these measures, the authors argue, the regulatory and ombudsman approaches outperform alternatives.

Both sets of arguments are contestable. On the descriptive side, the number of countries using ombudsmen is small, and experience is limited outside the United Kingdom. On the functional side, the authors, who throw in their lot with behavioral sociology and economics rather that rational-choice economics, swim against a strong tide to argue that affecting future behavior, not deterrence, is a principal function of system of mass dispute resolution. Following prior work by Hodges, the authors argue that compensation does little to deter bad conduct and that mechanisms other than ordering the payment of money are necessary to change behavior.

Those steeped in class-action literature will fault the authors for cherry-picking arguments that put the class action in its worst light as a compensatory and deterrence mechanism.

In addition, the authors would have done well to defend their ombudsman-favoring recommendations against evident critiques. One critique is the problem of regulatory capture. While it appears that this problem has not infected the professionalized British ombudsmen system, the closest American analogy to a broad consumer ombudsman — the Consumer Financial Protection Bureau (CFPB) — has been a political football that offers a cautionary tale of what can go wrong when an administration disagrees fundamentally with the ombudsman’s regulatory objectives. Another critique, which was beyond the remit of the authors to address, is whether it is possible to mold a regulatory-ombudsman approach to a legal culture, such as in the United States, that prefers to regulate action lightly at the front end and sort out harmful effects at the back end. Finally, it is unclear how much of the success of ombudsmen is due to the backstop of litigation: would ombudsmen have the same leverage without realistic litigation options?

Some of the approaches that the authors describe have American analogs. As Adam Zimmerman and his co-authors have demonstrated, the American system increasingly relies on criminal or regulatory-enforcement proceedings to provide redress to victims in mass disputes. The CFPB and a few other ombudsman-like systems, such as FINRA, already exist. Thus far, however, Americans have not invested these mechanisms with the broad regulatory and compensatory powers of some of their European counterparts.

For me, the scenario likeliest to kill the American class action is a better alternative — a device that accomplishes most of the aims of class actions with fewer side effects. So far, such devices have been thin on the ground, at least in the United States. Despite its limits, the book offers a tantalizing look at an alternative universe of mass dispute resolution and is sure to stimulate the imagination of scholars who think about the future of aggregation in the United States. If regulatory and ombusdman approaches can be adapted to the American context, collective redress need not rely solely on class actions, multidistrict litigation, or less desirable options such as individualized consumer ADR. Debates about the strengths, weaknesses, and incentive structures of the present options will take on a different mien. The authors’ effort to sketch a possible future for aggregate dispute resolution creates an intriguing picture indeed.

Cite as: Jay Tidmarsh, Building a Better Mousetrap, JOTWELL (February 12, 2019) (reviewing Christopher Hodges & Stefaan Voet, Delivering Collective Redress: New Technologies (2018)), https://courtslaw.jotwell.com/building_a_better_moustrap/.

Enhancing the Role of States in Making Constitutional Law

Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018).

Jeffrey Sutton has much to teach us about the role of courts, state and federal, in making constitutional law. Sutton, well-known for his work as a judge on the United States Court of Appeals for the Sixth Circuit, has drawn on years of experience and research in this book-length rumination on the way state courts (and constitutions) can contribute to constitutionalism more broadly. Sutton served for some years as the solicitor general of Ohio, and knows the joys and heart-breaks of state constitutionalism first hand. Indeed, among the many happy turns of phrase in the book, one finds Sutton (many years after the fact) wistfully pursuing motions to reconsider the adverse decisions that most set his teeth on edge.

Sutton approaches his task with a deep appreciation of modern constitutionalism and an eye and ear for storytelling keen enough to engage readers both learned and lay. In brief, Sutton, argues, we have mistakenly come to view federal or national constitutionalism as the only game in town and have slighted state constitutionalism as a source of rights. Sutton describes a world hungry for rights articulation and suggests that state courts might play a more active role in the process. Sutton encourages lawyers to mount more state constitutional challenges, thereby giving their clients an extra shot at success. He also encourages state courts to take their own constitutions more seriously, noting that these documents often contain provisions missing from their national counterpart.

Sutton’s argument for state constitutionalism would advance three related goals. He invokes the familiar Brandeis idea of states as laboratories, extending it to judicial experimentation with constitutional rights. Rather than locking us all into a single national solution, state constitutionalism can flex in light of local conditions. States might vary in terms of the strictness with which they enforce the right to bear arms, depending on whether they tend to worry more about urban gun violence or the preservation of a rural hunting ethos. Other states, depending on their own history and patterns of migration and settlement, might take different views of the free exercise of religion or the guarantee of compensation for the taking of private property.

Apart from allowing states to experiment and adapt constitutional guarantees to local conditions, Sutton’s vision of state constitutionalism would allow the national courts to draw on state experience in considering when to nationalize a particular set of rights. Sutton points to the way the Court in Mapp v. Ohio drew on the experience of the states with the exclusionary rule, in contrast to Buck v. Bell, in which the Court, through Justice Holmes, refused to take opposing state court decisions seriously in the course of upholding the forced sterilization of Carrie Buck. Sutton’s dismay with Holmes, who upheld the Virginia law less as a dispassionate judge and more as an enthusiastic cheerleader for eugenics, leaps off the page.  Sutton also observes that state courts led in developing a guarantee of same-sex marriage equality, providing the Obergefell Court with signposts to guide its way.

Finally, Sutton argues that, by virtue of their knowledge of local conditions and politics, state courts can better “manage” the implementation of the new rights they recognize than the far-away Supreme Court. Sutton offers the school finance cases as a lesson, tracing how state courts responded after the Supreme Court rejected an equal protection challenge to school funding disparities. Sutton sees the complexity in how states fund their public schools and doubts that the Supreme Court could have articulated a standard that would apply effectively to the wide array of local arrangements. He contrasts national incapacity with the more nuanced appreciation that state judges brought to task of reworking school funding decisions. While he recognizes some state-to-state disparities, Sutton views the state experience as a qualified success—virtually every state has re-worked its school funding models, without needing a federal obligation to do so.

Sutton proposes changes in the way state courts resolve constitutional claims. State courts facing challenges to state action based on parallel provisions of the state and federal constitution typically decide the federal question first. This sequencing stultifies state constitutionalism. Many state courts also interpret parallel state provisions in lockstep with their national constitutional counterpart and decline to give any independent content to state constitutional guarantees. Sutton would have state courts step out on their own, developing pockets of independent law that might grow over time as the judges gain greater confidence. Sutton asks law schools to give greater attention to state constitutionalism, hoping to generate more interest and more action as it were. Along the way, he devotes thoughtful attention to Justice Brennan’s attempt, some forty years ago, to encourage development of state constitutional law.

This bracing effort to revive state constitutionalism will open eyes and might change constitutional practice. One can, of course, question one or two particulars. The Supreme Court does not stand alone in crafting constitutional rights or in managing their implementation. Having learned the lessons of Brown, the Court relies extensively on the creativity and energy of lower federal court judges to carry its pronouncements into effect. In thinking about how courts might manage a guarantee of equality in school funding, Sutton may focus too much on the comparative isolation of the Supreme Court and too little on the managerial capacity of local federal district judges.  Sutton’s account of the role of federalism in constitutional rights development may also teach unexpected lessons about the viability of originalist precepts. He explains that one cannot premise a national constitutional right on “local traditions, cultures, or history . . . of one region of the country or one group of citizens.” While addressed to constitutional lawmaking today, this analysis may cast doubt on the relevance of the traditions, cultures, and history that surrounded the relatively narrow slice of individuals who made up the founding generation. If so, that is just one of the many insights one gains from reading this lively and informative book.

Cite as: James E. Pfander, Enhancing the Role of States in Making Constitutional Law, JOTWELL (January 30, 2019) (reviewing Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018)), https://courtslaw.jotwell.com/enhancing-the-role-of-states-in-making-constitutional-law/.

Procedural Innovations to Address the Secrecy Problem in National Security Litigation

Shirin Sinnar, Procedural Experimentation and National Security in the Courts, 106 Cal. L. Rev. 991 (2018).

Public litigation implicating national security issues faces a particularly thorny problem: the need for secrecy. On one hand, this kind of litigation—whether challenging the military’s use of Agent Orange in Vietnam, or the practice of putting individuals’ names on a No Fly list, or the Trump Administration’s “Muslim Ban”—raises important public issues and represents a paradigm case for judicial transparency. On the other hand, government defenses rely on state secrets with potentially vast consequences for national security, a situation where transparency can be dangerous.

Traditionally, courts have confronted the secrecy problem in national security litigation in one of two ways. Courts may abstain from hearing national security cases “because adjudication will lead to the dangerous exposure of sensitive national security information or to intractable challenges in reviewing and managing such information.” Alternatively, courts may defer to the executive branch’s judgment on a particular factual or judgment question. Both solutions often stop litigation in its tracks, preventing the court from evaluating cases on their merits.

Shirin Sinnar’s new article identifies a set of cases where courts have moved beyond these initial hurdles and resolved the constitutional merits. To do so, the judges have experimented with several different procedural tools to address the secrecy problem. Sinnar’s rich account of these experiments provides food for thought for procedure scholars. In her narrative, the secrecy problem is Goliath and procedural experimentation is David. While Sinnar is careful not to overstate the prevalence of these experiments, the lesson is that the power of procedure can prevail.

After describing the secrecy problems that can stymie litigation, Sinnar identifies six procedural experiments in national security cases that have not fallen prey to various abstention doctrines. Two are specifically designed for protecting secrets: “conducting ex parte and in camera review of protected information” and “using cleared counsel to access protected information.” The other four are less secrecy-specific: consolidating and transferring cases via MDL; appointing special masters and experts; facilitating interlocutory review; and using judicial management to determine rights and remedies in an incremental and dynamic fashion. Sinnar explores these practices and their ability to “supplement the traditional adversarial process, spur the growth of an institutional architecture to protect secrets, encourage the executive to disclose information voluntarily, reduce cognitive biases, and enable judicial learning over the course of litigation.”

Two of the examples I found most interesting were the use of special masters and of judicial management. As to the first, Sinnar cites two recent cases where judges considered, and rejected, appointing an FRE 706 expert “to assist the judge in determining whether disclosures in discovery would create a reasonable danger of harm to national security.” But she highlights that special masters have succeeded in the past. In a 1987 FOIA case, Judge Oberdorfer appointed a former DOJ intelligence lawyer with top secret security clearance to review documents relating to hostage release efforts that the Department of Defense sought to withhold from the Washington Post. In the Agent Orange litigation, Judge Weinstein appointed a special master to review state secrets assertions. To alleviate the government’s burden of asserting state secret privilege over all the documents, which would require approval by a department head for each document, the special master first ruled on relevance. Sinnar recounts that “the government granted extraordinary access to the special master, who spent weeks in a ‘special guarded room in the Pentagon’ examining tens of thousands of documents prior to the government deciding whether they qualified for state secrets protection.”

This use of special masters is reminiscent of—or perhaps foreshadowed—the prevalence of special masters in modern MDL and other complex litigation, such as the 9/11 Victim Compensation Fund run by Ken Feinberg, or the appointment of then-less-well-known Robert Mueller as the special settlement master in the VW clean diesel litigation. In the secrecy cases and in these more modern examples, special masters devise specialized procedures—sometimes with input from or review by the judge and parties—to enable the litigation to function.

Judicial management, another familiar tool for adapting procedures to suit the needs of particular cases, can use specially designed procedures in a similar way. Sinnar singles out Latif v. Sessions, a constitutional challenge to the terrorist No-Fly watch list, as exemplifying the judicial-management approach. Judge Brown of the District of Oregon originally dismissed the plaintiffs’ complaint. After the Ninth Circuit reinstated the case, she used what Sinnar calls “incremental and dynamic judicial management” to avoid or minimize the secrecy issues. For example, Judge Brown front-loaded certain questions of law that could be decided on a set of stipulated facts, such as whether the process for contesting one’s placement on the list violated procedural due process. She thereby delayed consideration of the substantive due process questions that would require discovery of “potentially sensitive information about individual plaintiffs.” This sequencing allowed the judge to conclude that the process for contesting inclusion on the list was constitutionally insufficient, marking “not only a rare victory for plaintiffs challenging watch lists, but also one of the first watch list challenges to even proceed to a determination on the merits.”

In short, these procedural fixes work—they help litigation perform its functions and allow the parties and judges to get to the merits of national security cases. Sinnar points to five additional benefits. They supplement adversarialism, insofar as methods such as in camera review enable judges to see documents when opposing parties are not allowed access. They “spur the development of architecture to protect secrets.” In other words, the more experience courts and the Justice Department have with providing secret information to courts in secure ways, the better they can develop infrastructure for providing and securing that information. Relatedly, more experience can prompt the Executive to be more receptive to requests to disclose information through secure processes. More experience can counter judges’ natural biases in favor of deferring to the government. And bringing several of these themes together, Sinnar identifies a fifth benefit in promoting judicial learning.

Sinnar also highlights important concerns. Secrecy is an ideal issue to address through bespoke procedures because these national security cases create risks to core rule of law values such as due process, transparency, pluralism, and the avoidance of bias. Sinnar applauds the use of experimental procedures to address secrecy issues, but cautions against using them as “‘off the rack’ solutions for national security cases.” She urges courts to consider whether the procedures satisfy due process and ensure “that their value outweighs their risks” before using them.

As a verdict on these experiments, Sinnar rejects the criticism that they are “too little, too late,” concluding instead that they are “necessary, but insufficient.” It remains true, as Margaret Kwoka documents, that this procedural experimentation is the exception to the general rule of judicial deference in national security cases. Sinnar poses “the real question” as “whether ad hoc judicial experimentation on secrecy can succeed in the absence of more systemic legislative change.” She doubts that such change is likely, a common place at which both scholars and judges land when facing difficult procedural obstacles. It thus seems natural for Sinnar to conclude by offering insights for procedure more generally. In addition to insights about the potential for diffusion of innovative procedures across subject matter and across the civil-criminal divide, these experiments provide evidence of the pervasiveness of “bottom-up” ad hoc procedure “in response to functional needs” of particular litigations. In the national-security context, the executive branch plays an outsized role, triggering different institutional dynamics. But particularly in the absence of systemic procedural change, Sinnar predicts judges will continue to experiment with ad hoc procedure in the national security context.

Interestingly, Sinnar argues that the scope and capacity of judicial discretion to address these issues are unclear. The Supreme Court has reached conflicting results when reviewing judicial capacity to devise procedural solutions in this space. In Boumediene v. Bush, a Guantanamo detainee habeas case in 2008, “the Court expressed confidence that the district court had the ‘expertise and competence’ to resolve evidentiary challenges, including the protection of classified intelligence.” But one year later in Ashcroft v. Iqbal, “the Court was equally sure that, without an across-the-board change to pleading standards, district courts could not be relied upon to regulate discovery in a manner that sufficiently respected the needs of high-level national security officials.”

This framing shows the important contribution of Sinnar’s work. National security expert Rebecca Ingber argues that “it’s important to pull away the veil of mystery draped over national security law” that courts often hide behind in these cases. Sinnar is uniquely positioned to help judges overcome their biases against delving into national security issues and to help national security experts understand procedural tools that can lift the veil. She can address both perspectives because she speaks both languages—national security and procedure—so fluently. Her work therefore facilitates both further conversations across these disciplines and a richer understanding of both fields.

This article is an excellent example of the important genre of procedural scholarship that focuses on the procedure of particular substantive areas, supporting the thesis that even trans-substantive procedure is not trans-substantive and simultaneously providing interesting insights for procedure more broadly (dare I say, trans-substantively).  Other recent complements include Jessica Erickson’s Heightened Procedure and Maria Glover’s The Supreme Court’s ‘Non‐Transsubstantive’ Class Action. Anyone interested in procedure, procedural innovation, or trans-substantivity—not to mention procedural issues in national security litigation—should read Sinnar’s article in full.

Cite as: Pamela Bookman, Procedural Innovations to Address the Secrecy Problem in National Security Litigation, JOTWELL (January 16, 2019) (reviewing Shirin Sinnar, Procedural Experimentation and National Security in the Courts, 106 Cal. L. Rev. 991 (2018)), https://courtslaw.jotwell.com/procedural-innovations-to-address-the-secrecy-problem-in-national-security-litigation/.

Practice Makes Perfect

Approximately four years ago, the Federal Advisory Committee on Civil Rules established a subcommittee to reform Federal Rule of Civil Procedure 23, the class action rule. The subcommittee engaged in a meticulous review of various class action practices, focusing on such controversial issues as cy pres awards, bad faith objectors, and class action settlements. The subcommittee’s work resulted in the Advisory Committee adopting a package of amendments to Rule 23, which went into effect on December 1, 2018. A good overview of the amendments can be found here.

Anticipating passage of these amendments, the Bolch Judicial Institute at Duke Law School assembled an all-star team of class action practitioners and experts to draft a compilation of “guidelines and best practices.” Because the amendments “codify emerging or best practices of courts,” the goal of the publication is to “add detail to the general guidance provided in the amended rule.” The publication has all the attributes of a great resource—it is concise while remaining crystal clear.

But what I find remarkable about the publication is how its focus on the on-the-ground experience of administering class actions sheds light the thorniest issues in class action law. Take standing, an issue the Supreme Court focused this Term in Frank v. Gaos. In 2016, the Court decided Spokeo v. Robins, concluding that to establish standing, a class representative must allege a harm that is both concrete and particularized. There is some question whether standing must be established for all class members, not just the class representative. Tyson Foods, Inc. v. Bouaphakeo addressed but did not decide whether standing can exist when there is the prospect that “uninjured” class members may recover.

This publication does not address this issue directly, nor does it intend to, but it does discuss some aspects of the actual administration of class actions that bear on the issue. For example, it states that, with respect to information concerning the distribution of proceeds from a settlement, “a court should not assume that automatically distributing benefits to all class members is superior to distributing benefits based on submitted claims.” (Best Practice 3C). It makes the reasonable point that in some class actions, such as those involving consumer claims, a submitted-claims process can be invaluable in identifying individuals who have suffered actual harm by requiring, for example, proof of purchase to recover. This suggests that in many cases issues of class member standing can be obviated on the back end by processes ensuring that uninjured class members cannot recover. In Tyson, the Court hinted that such a back-end process can satisfy these standing issues. The Court admonished the Tyson defendants for opposing a “bifurcation” process that would have permitted the district court to determine liability in one phase and individual class members to submit claims for damages in a second phase.

Another thorny issue concerns class attorney compensation, where there is a concern that class attorneys profit at the expense of class members who receive little to nothing from the lawsuit. The publication speaks to this issue (again, not intentionally or directly) through the debate over whether the attorney’s fee in a class action settlement should be based on the percentage of the total monetary awards made available to the class or the money “actually delivered” to class members. The notes to the 2018 amendments emphasize the latter, stating that “the relief actually delivered to the class can be a significant factor in determining the appropriate fee award.” At first glance this make sense—why should an attorney be paid if the class members are not also actually paid?

But the publication makes an important point about the actual operation of class actions that informs the “actual value” the class members receive. In a sense, class actions arise because class members do not want to be paid, or at least do not want to go to the trouble of filing a lawsuit to recover. A class action goes to that trouble. In investigating and settling the case, class attorneys make proceeds available that otherwise would not be available through efforts of class members who otherwise would not have sued. The publication cites cases to argue that “the opportunity to recover meaningful relief by availing themselves of a claims process that is procedurally fair, even though many fail to do so, is ‘actual value’ to the class members.”

The publication also tackles appointment of “interim class counsel” in multidistrict litigation (MDL). Although this concept was introduced in 2003 amendments to Rule 23, the publication discusses the importance of this designation and its effect on current practice. Interim class counsel corrects a “Catch 22” situation that has arisen from heightening class certification requirements, itself a response to courts’ unease with the near-unilateral control of the class attorney. Class certification is now “often preceded by substantial fact and expert discovery,” which requires “time and resources to develop a record in the case sufficient to enable the court to make an informed class certification decision.” The availability of interim class counsel allows for the appointment of counsel with the power and incentive to perform this work for the benefit of the class.

The publication also addresses this practice in MDLs. In theory, MDLs avoid the unease that arises from counsel control by consolidating claims, because each plaintiff retains her own counsel. But class actions can arise within MDLs. And there remains great benefit in having “lead counsel” coordinate the efforts of the individual plaintiffs, even if each retains separate counsel. “Class actions and MDL have converged in recent years,” with “MDL transferee judges, who must appoint plaintiff leadership at the outset of the proceedings, . . . often adopt[ing] the Rule 23(g) factors as qualifications in such leadership roles.” The publication discusses guidelines and best practices for interim class counsel within MDLs. And it  (again unintentionally) makes an important point about not only the persistence of the class action, but its utility. The very power of class counsel that makes courts uneasy is the same power that allows for the investment and coordination necessary to litigate the plaintiffs’ claims in the first place.

There are many more gems in the publication, too many to discuss here. This is a perfect example of the kind of work I like “lots”—it looks at on-the-ground practice with a sensitivity to finding solutions. That it also speaks to important class action issues shows the importance of paying attention to the great work being done by courts and practitioners.

Cite as: Sergio J. Campos, Practice Makes Perfect, JOTWELL (December 20, 2018) (reviewing Bolch Judicial Institute, Duke Law School, Guidelines and Best Practices Implementing 2018 Amendments to Rule 23 Class Action (2018)), https://courtslaw.jotwell.com/practice-makes-perfect/.