Danya Shocair Reda, Producing Procedural Inequality Through the Empirical Turn
, 94 U. Colo. L. Rev.
__ (forthcoming, 2023), available at SSRN
Data is all the fashion, not just in the legal academy and other academic disciplines, but in our daily lives. We have been glued to COVID-19 statistics to make decisions about whether to wear masks, send our kids to school, or take that rescheduled trip. While these graphs and statistics have been helpful, they have not been without controversy. The pandemic has brought into full relief how data can be manipulated, misunderstood, and even misleading.
Danya Reda’s Producing Procedural Inequality Through the Empirical Turn questions and critiques how data is gathered and used in another important context—the federal civil rulemaking process. Reda’s prior work has contributed to how we think about the civil justice system and the rules that govern it. She has shown that elite lawyers and judges constructed and marshalled a cost-and-delay narrative that affects the civil rulemaking process. She has interrogated the effect of casting the rulemaking process as political. In this article, Reda takes her critique a step further by arguing that the rulemakers’ attempts at neutrality—and their attempts to keep the process “neutral” using data—distort the rulemaking process and deepen systemic inequality.
Reda takes aim at the concept of neutrality in the civil justice system. The problem with anchoring the rulemaking process in neutrality is two-fold. First, the Federal Rules of Civil Procedure intervene in a system already structured unequally by law. The parties’ positionality, the law governing the dispute, and the decisionmakers—both judge and jury—are far from neutral. Second, decisions about what rules should govern are contested, meaning different views persist about how the rules should function. That, in and of itself, demonstrates that the rules can never be neutral. Any decision about the rules is necessarily normative, informed by value judgments and insights.
I, and others, have questioned how the rulemaking committee members’ ideologies, identities, and litigation experience affect the committee’s procedural reforms. Because those reforms are often cast as out of step with the realities of litigation and skewed in favor of organizational defendant interests, this scholarship can create an impression that committee members’ actions are deeply purposeful, maybe even nefarious. Reda’s article takes a broader, balanced view of why the committee members make their decisions. Her explanation—while not minimizing the effects of identity, ideology, and litigation experience on member behavior—asks us to think about the ways in which the “who” of the committee member intersects with the “how.” That “how” requires us to think about the rulemaking process and the committee’s fidelity to empirical data.
Reda does not argue that empirical data is useless, but that the way the committee uses data is problematic. The committee’s definition of empirical is unclear and often includes information that should not be categorized as such. Because of this “category error,” the committee will rely on information that is not empirical, at least for the committee’s stated purpose. When the committee has empirical information, it misapplies it. By not understanding what the information means, the committee’s work is not data-informed. Finally, because the committee believes it is using empirical data properly, it fails to utilize other potentially useful and productive empirical information that could inform and improve its decisionmaking.
To demonstrate how misusing empirical information has hampered the committee’s work, Reda pored over rulemaking records, including those regarding the 2010 Duke Civil Litigation Conference in which the committee endeavored to anchor its work in an “empirical foundation.” The Duke Conference led to the controversial 2015 discovery amendments, which the committee celebrated as data driven. Yet Reda shows that category error, misinterpretation, and missed opportunity plagued the conference and the ensuing rulemaking process.
From the outset, the committee failed to identify useful empirical information. It called for data, but it received general attorney-perception survey results. The lone exception was a Federal Judicial Center closed case study, which connected the surveys to the particular case the attorney had litigated. Despite the differences in the quality of the information, the committee lumped it all together as empirical.
Building on the lack of categorization, the committee misinterpreted the data. Reda shows that the committee interpreted the survey data and the case study data as conflicting. In fact, the survey information revealed that attorneys believed discovery was too expensive while the closed case study showed that most discovery was not outsized. The committee interpreted this as showing that discovery worked well in most cases, but not in a subset of cases. This interpretive error had significant consequences for discovery reform. As experts pointed out during the conference, and as Reda reinforces in her article, the general perception surveys reflect impressions resulting from cognitive biases. Survey respondents naturally focused on the most extreme cases they could recall. The closed case study, by contrast, reflected a more accurate picture of how discovery worked on the ground.
Finally, in the name of neutrality, the committee missed useful empirical data. Committee members resisted hearing practitioners explain how a rule change might benefit particular clients. They defined generalized impressionistic survey data as impartial, but specific, contextual attorney feedback as biased. Reda explains that the opposite is true. Generalized data is less useful and quite biased. Had the committee sought out practitioners and asked them to identify how the discovery proportionality rule might operate in a particular case, the committee could have received a complete picture of what the proposed rule change might do.
In other words, accepting that ours is an adversarial system, Reda argues that the committee should hear from advocates regarding how a rule operates for their clients. Yet commitments to neutrality prevent committee members from gathering the very information that would better inform their work. The rulemaking process further entrenches existing inequalities because committee members do not grapple with the value judgments and biases they impose on the rules. Producing Procedural Inequality deftly shows that the neutrality of the rules is a myth and that the committee process should reflect the same. Reda does not blame committee members, but argues they need better resources and assistance in understanding what is before them. Committee members necessarily design rules that will affect the outcomes of cases. This is a heady task for sure, but hardly a neutral one.
“Staffers, staffers, staffers.” That is the number one rule of congressional testimony. To provide some context: U.S. senators and representatives are elected to represent large constituencies with diverse and often conflicting interests. To respond to constituent concerns, Congresspersons rely upon their staff to help them understand complex issues. The key in congressional testimony is not to convince the Congressperson but the staffers of the rightness of your position. It is advice that proceduralists like me appreciate.
Myriam Gilles is adept at talking to staffers, as demonstrated by two examples of her submitted congressional testimony that I like lots. The first (“Justice Restored”) concerns the Forced Arbitration Injustice Repeal (“FAIR”) Act, a house bill that would prohibit forced arbitration in a number of consumer and employment settings. The second (“Silenced”) concerns the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which recently became law and prohibits arbitration agreements involving claims of sexual assault or sexual harassment.
Gilles is a perfect choice to provide these congressional testimonies. She writes in the field of class actions and complex litigation and expresses complex issues clearly, precisely, and with great vividness. Her titles are legendary:
As one can tell from these titles, one focus of Gilles’s scholarship has been arbitration, in particular arbitration clauses prohibiting the use of class action and similar aggregate procedures. Gilles has been writing about “class action waivers” since 2005, when she predicted that such clauses would lead to the “near-total demise of the modern class action.” Beginning in 2009, the Supreme Court decided a series of cases, most notably AT&T Mobility v. Concepcion, holding not only that class action waivers were enforceable, but that class action procedures were in conflict with the policy of “bilateral arbitration” reflected in the Federal Arbitration Act (“FAA”). Gilles, much to her dismay, proved prophetic.
The Court’s position has some intuitive appeal. Arbitration is a process that allows parties to opt out of formal judicial procedures and resolve disputes using a private arbitrator. Arbitration procedures often are simpler, cheaper, and faster. It is hard to square the simplicity of arbitration with the complexity of class action procedures that allow one representative to litigate on behalf of many.
Gilles’s work reveals the fallacy of that position. Not only are class actions cheaper, faster, and better, but without class actions many plaintiffs would not file suit at all, either in a court or an arbitration. Class actions allow a representative party to pool resources and invest in litigation that would not make sense on a plaintiff-by-plaintiff basis. Defendants know this, which is why, to borrow Gilles’s words, class waivers are “nothing more than a ‘get out of jail free’ card for companies.” Even in settings where class action procedures are not necessary, defendants can write arbitration clauses with procedures that are so one-sided that they can “write their own accountability-avoiding rules at the expense of American workers.”
Of course, Gilles cannot submit 16 years of law review articles to the committees; that would be too much to ask of any staffer. Instead, in the two examples that I like lots, Gilles condenses her work into two short, crisp, letters, each serving as “submitted testimony,” that provide an overview of her work in a way that addresses the committees’ concerns.
Justice Restored provides a short overview of the Supreme Court’s expansive interpretation of the FAA and how it has led to the proliferation of arbitration clauses in consumer and employment contracts. Like an experienced litigator, she provides vivid evidence of the effects of these forced arbitration clauses. In 2018, out of an estimated 826 million consumer arbitration provisions in force, the two largest arbitration providers resolve approximately 6,000 arbitrations (only 6,000!). About 52% of private-sector, non-union workers (about 60.1 million workers total) are subject to arbitration of employment disputes, but an estimated 1 in 10,400 workers pursues any arbitration claim. The high use of arbitration clauses combined with the paltry numbers of actual arbitrations supports Gilles’ thesis that arbitration clauses allow defendants to escape liability.
Silenced focuses on the lack of transparency in the few arbitrations that plaintiffs do pursue. The offending provisions include nondisclosure provisions that require the arbitration to be conducted “in utter secrecy.” For claims involving sexual assault or sexual harassment, defendants use arbitration clauses less to divide and conquer plaintiffs than to hide the offending conduct from the public. The lack of transparency can and does lead to systematic bias against victims in arbitration awards.
In Silenced, Gilles further shows the necessity of federal legislation by discussing the limits of alternative avenues of challenging forced arbitration – state legislation and public pressure. State legislation runs into preemption, as the Court has interpreted the FAA so expansively that it would preempt state law attempts to curb forced arbitration. Public pressure may work for the most powerful and well-off workers, who can lobby against arbitration clauses in their own contracts. But it leaves the least-well-off workers the most vulnerable. I found these sections particularly compelling, as I could imagine a staffer feeling a renewed sense of urgency in the need for legislation.
I have written in previous jots about my love for scholarship that focuses on the how – how to change law, how to improve things on the ground. I commend Gilles for her mastery of putting her scholarship into action, to ensuring that her important contributions to legal scholarship are understood by individuals who can do something about the problems she exposes. Many legal scholars participate in this kind of work, through amicus briefs, legislative testimony, service on law-reform projects, and other efforts. These efforts should be celebrated because they prove again and again the value and importance of legal scholarship.
Personal jurisdiction is one of those legal headscratchers. Courts and commentators assume that personal jurisdiction doctrine—which delimits where a defendant can face suit—is rooted in the due process clause, imposing a constitutional limit on the reach of state authority. This means courts usually find personal jurisdiction (1) where a defendant resides, (2) where it has sufficient “minimum contacts” that closely “relate to” the litigation, or (3) where it is physically served with process. But the Supreme Court has limited this last option—“tag jurisdiction”—to individuals, not corporations. In a great new article, Patrick Borchers offers a contrary view, decoupling personal jurisdiction from due process and concluding that states can constitutionally adopt long arm statutes permitting tag jurisdiction over corporations.
The Supreme Court has struggled to articulate a workable test for personal jurisdiction. So when Ford v. Montana, a products liability case, yielded a unanimous ruling last year, it generated attention. The majority found Ford’s significant contacts relating to its car business—such as selling and servicing its cars in the forum state—sufficed for personal jurisdiction, even though the individual vehicles involved in the accidents were originally purchased elsewhere. As Anya Bernstein and I have explained, Ford clarifies that, for personal jurisdiction purposes, a defendant’s contacts with the forum state need not give rise to the particular cause of action; it is enough for the defendant’s state contacts to relate to the lawsuit’s “underlying controversy.”
With this crucial issue resolved, Ford will have a significant immediate effect on personal jurisdiction doctrine. But Borchers offers a fascinating longer view of the issues Ford raises. His lively article stems from Justice Gorsuch’s concurring opinion, which was joined by Justice Thomas. The concurrence agrees with the outcome but questions the majority’s minimum contacts analysis. Instead, Gorsuch invites an analysis of personal jurisdiction from a textualist and originalist lens.
Borchers accepts this invitation and challenges conventional personal jurisdiction scholarship and doctrine by reaching three conclusions. First, “[t]he current constitutional rule that corporations are subject to general jurisdiction only in the states in which they have their headquarters or are incorporated is utterly ahistorical and disastrous in practice.” Second, after detaching personal jurisdiction from due process, he argues that the Court can jettison the beleaguered minimum contacts test. Borchers builds on these conclusions to make his boldest claim—states have the constitutional authority to enact long arm statutes permitting corporate tag jurisdiction.
In reaching this conclusion, Borchers untethers personal jurisdiction from procedural due process. The “conventional view of Pennoyer—establishing the due process clause itself as a limitation on state-court jurisdiction—might be a ‘giant misunderstanding.’” The minimum contacts test—the Court’s proposed means of measuring whether due process allows a state to exercise personal jurisdiction—is the product of a misreading of Pennoyer v. Neff, the path-breaking case from which the Supreme Court spent decades stumbling to articulate a new vision for personal jurisdiction. Borchers analyzes Pennoyer’s text and historical context to weave an argument that “Due Process—as originally understood—quite likely did not itself supply jurisdictional rules, but rather was a mechanism for enforcing rules that come from elsewhere.”
This is where the article breaks new ground
Borchers identifies state long arm statutes as “that elsewhere” underlying personal jurisdiction requirements. Had I come across such a conclusion in isolation, the skeptic in me would have bristled. But Borchers leads his readers towards this point by methodically and convincingly unpacking this history of personal jurisdiction. He spells out how separating the doctrine from due process allows the judiciary to forego “the ever-morphing minimum-contacts/fair-play test [that] too often put[s corporations] beyond the grasp of plaintiffs harmed in their home states by multinational enterprises exploiting the forum-state’s market.” He examines the world of personal jurisdiction post-Pennoyer but pre-minimum contacts, analyzing key New York and North Carolina decisions approving state long arm statutes permitting tag jurisdiction over corporations. These decisions, combined with his close reading of Pennoyer, prove his claim that due process need not limit a state’s reach over an out of state defendant personal jurisdiction.
The payout for working through this line of reasoning is significant. Should the Court recognize that due process is a means for challenging—not a source of—personal jurisdiction requirements, state long arm statutes can extend further than the limited reach of the minimum contacts test. Such statutes must identify a forum that does not “put the defendant at a practical disadvantage in defending the case.” This means states can adopt long arm statutes allowing corporate tag jurisdiction, negating “the advantages corporations gained in prior decades by being able to do some business while evading jurisdiction in the forum state.”
There is a lot here, too much for me to do all of Borchers’ article justice in this review. He walks the reader through each claim, interweaving existing scholarly debates with his own assiduous readings of legal authority. Even as one uninclined towards textualist or originalist arguments, the article left me with a tremendous amount to consider about a post minimum contacts world.
Cite as: Christine Bartholomew, A Post Minimum Contacts World
(April 4, 2022) (reviewing Patrick J. Borchers, Ford Motor Co. v. Montana Eighth Judicial District Court and “Corporate Tag Jurisdiction” in the Pennoyer Era
, 72 Case W. Res. L. Rev.
45 (2021)), https://courtslaw.jotwell.com/a-post-minimum-contacts-world/
Edith Beerdsen, Discovery Culture
(Mar. 14, 2022), available at SSRN
Discovery drives U.S. civil litigation but rarely grabs the public’s attention. Recent high-profile cases offer exceptions to this rule. In 2022, MyPillow CEO Mike Lindell’s refusal to participate in the discovery process in the $1.3 billion defamation claim brought against him by Dominion Voting System made national news. A few months earlier, Remington Arms garnered major media coverage after it produced thousands of cartoons, emojis, and other seemingly irrelevant images in response to a document request in the lawsuit brought by ten families of victims in the Sandy Hook shooting tragedy. These aggressively unlawful discovery machinations might simply demonstrate disregard for the rule of law in these contentious times. But civil discovery’s time in the shadows also might embolden parties’ misbehavior.
In Discovery Culture, Edith Beerdsen argues that discovery is primarily an extralegal practice governed by the informal norms of the legal community, which can explain Lindell and Remington’s behavior and more. Beerdsen explores this phenomenon and how it interacts with formal legal authorities to influence parties’ decisions about what discovery requests are reasonable, when to cooperate, and when to seek the court’s intervention. Beerdsen’s descriptive and theoretical accounts of how discovery functions greatly add to the study of American civil litigation.
Identifying Discovery Culture is a major contribution by itself. It can be hard to see how discovery functions because it is a stage of litigation that largely happens away from the court’s active supervision. And, even when a discovery dispute is brought to a judge, formal orders are rare and appeals are virtually unheard of. Despite these challenges, Beerdsen finds a plethora of evidence for Discovery Culture. She identifies multiple statements by lawyers describing how regional or practice norms shape how they handle discovery and related disputes. She charts changes to the Federal Rules of Civil Procedure designed to account for existing discovery practices. Most strikingly, Beerdsen examines ten years of deposition disputes from three “middle-of-the-pack federal district courts with roughly typical caseloads.” The study found few formal orders, consistent with her hypothesis that parties resolve most disputes without judicial interventions interpreting Rule 30(a). And those uncommon orders involved instances in which the Rule requires a court order regardless of the parties’ agreement, flagrantly obstructive behavior, or especially unusual fact patterns.
Having identified Discovery Culture, Beerdsen specifics its nature and fit within existing models of extralegal practice. Beerdsen pushes back on the notion that discovery neither is governed by much formal law nor the “shadow of the law.” She provides a thoughtful description of the law of discovery and broader ruminations on the nature of law itself. She fits Discovery Culture within Robert C. Ellickson’s “order without law” framework. The key idea is that, especially in close-knit communities, individuals’ primary conduct is dictated by social norms even if those norms contradict formal legal authorities. Beerdsen provides a rigorous, extended account of the framework and how it describes discovery better than a traditional, positivist account of the law.
Ellickson’s study of order without law in Shasta County’s agricultural community provided a more optimistic account than Beerdsen’s description of civil discovery in federal court. She discusses several shortcomings, including the risk that the flexibility and indeterminacy of cultural norms may exacerbate the unequal power of parties or lead to violations of other trans-substantivity norms. She proposes several solutions, including enhancing required disclosures that provide outsiders with a better sense of prevailing cultural norms and could be used to develop additional reforms.
Beerdsen’s Discovery Culture is an important and timely work that identifies a previously unrecognized driver of discovery. But the article is not just for discovery enthusiasts. It is best understood as a case study explaining the role of rules within American civil litigation.
Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures
, 122 Colum. L. Rev.
__ (forthcoming, 2022), available at SSRN
Law students often perceive civil procedure as the first-year subject that is least accessible to nonlawyers. Before law school, students signed contracts, owned property, monitored criminal trials, encountered torts, and invoked the Constitution. But civil procedure teems with novel concepts, mysterious rites, and unfamiliar vocabulary. These features beguile students into viewing civil procedure as a realm in which only lawyers tread. The case method reinforces this misperception by focusing on published opinions arising from litigation between represented parties. The misperception persists after graduation and influences how lawyers conceptualize the field of civil procedure.
Unfortunately, focusing on how procedure shapes opportunities for lawyers obscures the large volume of civil cases in which at least one party does not have a lawyer. A growing literature explores the implications of failing to adapt lawyer-centric procedural ideals to “lawyerless” adjudication. Scholars have analyzed state courts in which cases routinely proceed without lawyers (such as family courts) or in which represented parties sue unrepresented parties (such as housing courts). These courts affect millions of vulnerable people in traumatic circumstances. Yet procedures in many lawyerless courts fail to account for the practical consequences of self-representation within a nominally adversarial system. The ensuing risk of injustice has led commentators to propose a wide variety of reforms. Pamela Bookman and Colleen Shanahan’s A Tale of Two Civil Procedures looks beyond “fixing” specific procedures. The Article focuses instead on removing obstacles to understanding what is broken. A critical obstacle is that commentators often frame the field of civil procedure in a way that obscures the importance of lawyerless adjudication. The Article suggests reframing the field to directly engage with distinctions between “lawyered” and “lawyerless” courts. Bookman and Shanahan contend that this approach will make descriptive accounts of civil procedure more precise, normative discussions more nuanced, and reform proposals more effective.
The prevalence of pro se litigation in state courts is well-known. Scholars might therefore wonder why attendant procedural shortcomings have resisted reform. The Article insightfully addresses that question by explaining how traditional rubrics for analyzing civil procedure elide the problem of lawyerless adjudication. For example, many fields of procedural scholarship analyze subtle distinctions between federal and state courts. Emphasizing the federal/state dyad focuses attention on the subset of state courts that most closely resemble federal courts. These courts generally adjudicate disputes between represented parties. Likewise, using the Federal Rules of Civil Procedure as a baseline spotlights the subset of state procedural codes that govern similar types of lawyered cases. When procedural scholars do analyze pro se litigation, they generally emphasize access to justice for unrepresented plaintiffs. This framing can obscure the struggles of unrepresented defendants trying to exit rather than enter a court. Moreover, analysis tends to focus on written procedures accessible to outsiders and frequently overlooks unwritten procedures known only to insiders. Procedures of extraordinary practical importance thus hide in a fog of unrecorded experiences.
After explaining why procedures in lawyerless courts evade scrutiny, Bookman and Shanahan suggest mechanisms for encouraging and implementing critical scholarship. Their central insight is that procedural scholars should rethink the rubrics that animate analysis of civil procedure. In addition to concentrating on formal lines (such as federal/state) or clashes between values (such as merits/efficiency), scholars should stress the distinction between “lawyered and lawyerless courts.” Foregrounding that distinction would encourage scholars to examine dimensions of civil procedure that they might otherwise not consider.
Bookman and Shanahan support their suggestion by surveying three fields of procedural scholarship through their proposed lens. They “lead by example,” using each case study to illustrate their proposed inquiry and to confirm the inquiry’s value.
First, the authors review recent studies of procedural rulemaking that analyze the development of written rules and “ad hoc” practices. They conclude that the literature implicitly relies on assumptions that are accurate in lawyered courts but misplaced in lawyerless courts. For example, scholarship about ad hoc procedures in MDL litigation—which is heavily lawyered—assume the existence of lawyer-driven checks on judicial discretion. These checks help tailor ad hoc procedures to the needs of individual cases. But lawyerless courts lack such checks, enabling informal procedures developed for a particular lawyerless case to ossify into generally applicable norms. Analysis of informal rulemaking that omits lawyerless courts thus understates the systemic rather than case-specific role that lawyers play in shaping procedure.
Second, Bookman and Shanahan use e-notice to illustrate the value of “cross-pollination” between procedures in lawyered and lawyerless courts. Scholars have separately considered the value of e-notice in lawyered class actions and lawyerless individualized litigation. The Article contends that these inquiries should merge because each implementation of e-notice can inform its use in other contexts. This discussion of e-notice complements the authors’ prior discussion of ad hoc procedures. The case study of ad hoc procedures illustrates that differences between lawyered and lawyerless courts can be salient, while the case study of e-notice illustrates that facial differences can obscure deeper connections.
Third, the Article unites two parallel conversations about aggregation in civil litigation. In lawyered courts, aggregation often is a formal process governed by written rules. In contrast, lawyerless courts aggregate informally by applying streamlined procedures to similar cases. Yet in both contexts aggregation leads to similar results, such as extensive judicial management and formulaic settlements. Scholars have carefully studied each context separately but have rarely compared them. Bookman and Shanahan argue that concurrently analyzing both kinds of aggregation highlights how procedural norms implicitly assume the presence of lawyers. Articulating these norms more precisely might illuminate avenues for refining them in both contexts.
Bookman and Shanahan recognize that there is more to say about lawyerless adjudication. They hope to shape future conversations by integrating this often-marginalized topic into the mainstream of civil procedure discourse. Accordingly, they suggest that scholars writing and teaching about procedural policy and doctrine should consciously distinguish between lawyered and lawyerless courts. This approach would lead scholars to consider whether their analysis applies equally to both and, if not, whether the asymmetry is meaningful. Emphasizing how the adversarial system operates would also help scholars design procedures that “take advantage of lawyers’ presence while also functioning in their absence.” The Article’s thought-provoking defense of a new procedural lens is a welcome addition to the literature.
Danielle Keats Citron & Daniel J. Solove, Privacy Harms
, 102 B.U. L. Rev.
In Privacy Harms, Danielle Citron and Daniel Solove identify a central tension in the regulation of privacy in the United States. On one hand, federal law relies on litigation to address systemic depravations of privacy that, in the aggregate, compromise democracy, autonomy, and safety. On the other hand, federal litigation focuses on whether a specific litigant has experienced a concrete and particularized injury. Without demonstrating that the complainant has faced cognizable harm, there is no room to air the ways that undeterred, cumulative violations rip at the ties that bind us as a society.
The authors identify at least two ways that this judicial insistence on individualized injuries can facilitate systemic privacy harms.
Most directly, because courts sometimes fail to confer standing on plaintiffs for “mere” statutory violations, companies are sometimes not properly incentivized to comply with the law. The authors highlight the Supreme Court’s recent opinion in TransUnion v. Ramirez. Plaintiffs sued a credit reporting agency under the Fair Credit Reporting Act, alleging it wrongly accused them of being potential terrorists. The Court concluded that the plaintiffs were not harmed, and did not have standing, except in instances where the false information had been distributed to third parties. “No concrete harm, no standing,” the Court reasoned. Missing from this doctrinal picture is Congress’s systemic goal of encouraging credit reporting agencies to take reasonable steps to guard against inaccurate information on credit reports.
Second, courts’ insistence on specific, individualized harm means that even when a plaintiff does have standing, judicial proceedings and remedies are not necessarily tailored to airing and addressing the most urgent privacy harms. To gain access to federal court, some plaintiffs identify trivial financial harms as a pretext for more damaging (but highly generalized) harms. As Citron and Solove explain, “We have seen the emergence of an odd sort of legal fiction, where the law redresses ‘harm’ that is not the real interest interfered with as a means to redress a harm that really is.” By way of example, the authors describe a district court case in which plaintiffs sued Apple, alleging that the company violated its promises by failing to adequately prevent apps from non-consensually collecting plaintiffs’ personal data. According to the court, the plaintiffs had standing because the “unauthorized transmission of data from their iPhones taxed the phones’ resources by draining the battery and using up storage space and bandwidth.” But was battery drainage or used storage space the harm that the plaintiffs were concerned about? And does judicial focus on those trivial harms distract from what is at stake when a company breaks its promises and disseminates private information without permission?
Relatedly, the authors observe a disconnect between available remedies and the germane privacy harms at stake. Remedies generally fall into three categories: compensation (to redress an injury), deterrence (to discourage future injuries), and equity (to facilitate a return to the pre-violation status quo). But sometimes there is a mismatch between how privacy interests are enforced and the underlying goals of enforcement. Congress creates compensation schemes when it wants to deter widespread privacy harms. Compensation for financial harms might not express the value of privacy in ways that equitably promote psychological security and relational trust. The authors invite Congress, courts, and regulators to do a better job of tailoring enforcement schemes to enforcement goals.
To assist with this tailoring, the authors offer a typology of seven privacy harms. First are physical harms. Some violations of privacy interests—like reckless doxing of controversial individuals—can place people at increased of physical injury. Second are economic harms of the sort the Court is poised to recognize. Theft of one’s personal information, for example, places a person at increased risk of identity theft. Third are reputational harms. Fourth, are psychological harms, such as emotional distress and disturbance. Fifth are violations of privacy, which can undermine individual choice and autonomy. Sixth are privacy breaches that can facilitate discrimination. The authors reason, “The misuse of personal data can be particularly costly to women, sexual minorities, and nonwhites given the prevalence of destructive stereotypes and the disproportionate surveillance of women and marginalized communities in their intimate lives.” Seventh are harms to relationships, which “are two-fold: most immediately, the loss of confidentiality and in the longer term, damage to the trust that is essential for the relationship to continue.”
The authors recognize countervailing interests. Redressing and preventing privacy harms must be balanced with the effect of, for example, allowing thousands of people to bring suit for a single violation in a way that might cause a defendant damage that is highly disproportionate to the offense. But striking the right balance requires thinking critically about enforcement goals and about the harms at stake. Citron and Solove have offered an important contribution by providing a cogent critique of the pitfalls of the federal litigation in privacy cases; articulating harms that might assist litigants and courts wrestling with which privacy interests should be cognizable; and calling for lawmakers to ensure that protection of privacy occurs in precise and effective ways.
Danielle Keats Citron & Daniel J. Solove, Privacy Harms
, 102 B.U. L. Rev.
Proceduralists debate what procedures a system of civil justice ought to have and what rules and doctrines best actualize these procedures. We do not, however, pause enough to ask, “in the real world of courts and dispute resolution, do these rules and procedures do what we think they are doing?” Lauren Sudeall and Daniel Pasciuti contribute to the growing literature of quantitative and qualitative empirical studies of what happens inside American courtrooms by observing and analyzing the inner workings of dispossessory (eviction) courts in Georgia.
Sudeall and Pasciuti provide a detailed account of dispossessory courts in three counties – a large suburban county, a large rural county, and a small rural county. They shed needed light into the proverbial “black box.” I guess many legal academics have scant knowledge of the workaday life of state courts, and fewer still of specialized and small claims courts. For those who have spent time in these arenas, Praxis and Paradox demonstrates the wide variance between courts within the same state with a nominally uniform set of substantive and procedural laws. To know one housing court is not to know them all.
Much of what Sudeall and Pasciuti describe takes place in lawyerless courts. Tenants were unrepresented by counsel in roughly 99% of cases. The representation of landlords, on the other hand, varied by county but was still quite low—County S (the suburban county) had the highest level of landlord representation with 12.2% of landlords represented by counsel. The landlords, often repeat players, viewed the cases as straightforward factual matters in which representation was rarely worth its cost. Tenants reported feeling that a lawyer might have been helpful, although few were aware of the legal services programs that might have provided some assistance.
It is against this background that the authors report key findings about litigants’ perceptions of justice and procedural fairness. Landlords may have slightly overestimated their litigation abilities and procedural advantages. Tenants had different experiences of self-representation and procedural fairness. Tenants reported feeling that they would have benefited from assistance in comprehending aspects of the proceedings and in expressing themselves to the court. The perceived unfairness was systemic rather than individual; they believed “they were treated in a fair and reasonable manner by the individual actors. But when asked whether they thought the procedure and proceedings themselves were fair, they balked, suggesting “a sense that the structures undergirding the process were fundamentally unjust.” That litigants could discern the gap between fair treatment as individuals and systemic unfairness is telling—fair and respectful treatment is not a substitute for tenants’ perception that the underlying substantive law is stacked against them and that the larger constellation of procedures does not favor their interests.
These sentiments will not surprise access-to-justice scholars. The typical scholarly reaction to these findings is to demand promulgation and enforcement of more and better procedures. But Paradox and Praxis suggests that we ought to hit the brakes before following that instinct. Sudeall and Pasciuti find a gap between procedures that lawyers (and law professors!) think will facilitate better outcomes and the actual effect of these procedures, concluding that “[e]lements of the process we tend to assume would be beneficial to litigants or associate with fair judicial process—such as filing an answer…, scheduling an individual hearing on the merits, and providing tenants with the opportunity to tell their story in court—do not always manifest as expected or lead to better substantive tenant outcomes.”
The access-to-justice community would do well to heed this warning. In much theoretical and doctrinal literature, affording parties their “day in court” is the holy grail of procedural reform. Paradox and Praxis instructs that we should not discount this value altogether. Litigants spoke positively about the opportunity to tell their story even if it did not seem to affect the outcome of the proceeding, and court personnel spoke with pride about the degree (differing among the three counties) that they prioritized giving tenants their day in court and providing a forum in which they could explain their position. But some court-access measures appear disconnected from the merits or larger procedural values, if not counterproductive to the ends that they are supposed to serve. For example, courts provide form answers, some of which allow tenants to choose responses that “provide[d] no legally cognizable defense” such as the inability to pay rent because of lack of funds. With other examples and findings, this paints a picture of “day-in-court theater,” in which the superficial appearance of procedure masks deeper deficits in procedural structures and underlying substantive housing law and policy.
Praxis and Paradox is a must-read for practitioners and scholars whose work is unlikely to take them inside the black box of lawyerless courts.
Richard D. Freer, The Roberts Court and Class Litigation: Revolution, Evolution, and Work to be Done
, 51 Stetson L. Rev
. ___ (forthcoming 2022), available on SSRN
The rise in class action litigation has garnered significant scholarly and judicial attention over the past several decades, particularly in the United States. The Supreme Court of the United States under Chief Justice Roberts is perceived to be wary of, if not hostile to, class actions. A new paper by Richard Freer sheds light on the precise ways the Roberts Court has affected class action jurisprudence. The Court has released an average of more than two class action decisions a year since 2010, and in so doing, has revolutionized class action practice.
Freer offers a retrospective on three areas of jurisprudence that makes plain the important role the Roberts Court has played in class actions, especially over the past decade. He categorizes decisions as ‘revolutionary’, ‘evolutionary’ or ‘work to be done’. By analyzing the corpus of cases in this way, Freer provides a compelling account of the Court’s engagement with key class action issues.
The first category describes the revolutionary effect of Wal-Mart Stores, Inc. v Dukes. The Court rejected 35 years of lower-court interpretations of Eisen v. Carlisle & Jacquelin by requiring district judges to assess evidence relating to class certification, even if the evidence also bears on the merits of the action. The class representative must provide “significant proof” to the judge who undertakes a “rigorous analysis.” The Court also hinted that expert witnesses at the certification hearing must meet the Daubert requirements. Freer observes that lower courts “have treated this hint as a command” and that the combination of the evidentiary rule and the higher evidentiary standard has resulted in expensive certification processes.
Wal-Mart also breathed new life into the commonality requirement under Rule 23(a)(2), which historically had not been a difficult threshold to overcome. The majority’s approach “shifted the focus from common questions to common answers: there must be a common issue in the case such ‘that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’” This heightened commonality requirement has led to greater attention to Rule 23(a)(2) and to increased denials of class certification.
In the second category, Freer documents the evolution of Roberts Court case law on fraud-on-the-market class actions that has created new hurdles for shareholder plaintiffs. The fraud-on-the-market theory posits that shareholders’ reliance on a corporation’s public misrepresentations will be presumed so long as the class representative can demonstrate that the securities are traded in an efficient public market. The Court affirmed the theory in a number of cases, starting with Erica P. John Fund, Inc. v. Halliburton Co., continuing with Amgen, Inc. v. Connecticut Retirement Plans & Trust Funds, and most recently with Goldman Sachs Grp., Inc. v Arkansas Teacher Retirement Sys in June 2021. But in two decisions–Halliburton II and Goldman Sachs–the Court added the requirement that the misrepresentation had a price impact, even though the Court in Amgen had concluded that the representative need not prove the misrepresentation was material. Freer rightfully points out that the Court has ignored the relationship between price impact and materiality and has opened the door to a full-blown evidentiary inquiry at certification even further.
Finally, the Roberts Court has raised, but not answered, important questions in three areas of class action jurisprudence. First, class representatives must have standing under Article III of the Constitution even if they have a private right of action pursuant to a statute, but the Court has provided little guidance on the relationship between statutory and constitutional standing in Rule 23 cases. Second, the Court has not addressed questions of mootness, even when given the opportunity to do so in Campbell-Ewald Co v. Gomez. The Court did not answer whether an unaccepted settlement offer in the full amount of the class representative’s loss renders their claim moot and non-justiciable as a matter of constitutional law. Relatedly, it failed to explain whether that representative retains an interest that would permit them to argue that the class should be certified. Freer lists a number of issues that flow from these questions and warrant the Court’s attention. Lastly, though Roberts has stated that he has “fundamental concerns” about the use of cy pres remedies in class settlements, the Court did not seize the opportunity to clarify the limits of the doctrine in Frank v. Gaos. In all three–standing, mootness and cy pres–the Court has “staked out some topics on which its real work has yet to begin.”
In his succinct paper, Freer confirms the prevailing view among class action scholars that the Roberts Court has been active on class action issues and has made certification more difficult. Should the Court take up the work it has left uncompleted, the evolution – perhaps even revolution – of class actions will be one of its lasting legacies.
Nicole Summers, Civil Probation
(Aug. 3, 2021), available at SSRN
Although 98% of cases in the United States are filed in state courts, it has become common to lament the lack of state-court-focused scholarship. Statements such as “staggeringly little legal scholarship focuses on state courts and judges” and “[w]e know astonishingly little about [state courts]” abound. A recent jot highlighted an article calling for more attention on “the actual,” not just “the ideal,” in procedural due process.
Luckily these tides are changing. Nicole Summers is an important member of an emerging vanguard here to help.
Summers studies eviction courts from the ground up. In her latest article, Civil Probation, she not only provides invaluable empirical data about the real workings of eviction courts, but she contextualizes her findings in theories that enhance our understanding of state civil courts generally and eviction courts in particular. (See also her earlier study of NYC housing court.)
Her empirical contribution is extraordinary. It is well documented that the vast majority of the over 3.6 million eviction cases filed annually in the United States end in settlements brokered between landlords’ lawyers and unrepresented tenants, primarily in courthouse hallways. Focusing on eastern Massachusetts, Summers analyzed 1000 randomly selected cases to determine the most prevalent features of these settlements. Summers’ study investigates the terms of those settlements, asking an important question: “What are the parties settling for?” One might expect the settlements to result in some compromise between the landlord and tenant—for example, an arrangement that the tenant would pay some or all of the outstanding rent over time. But these settlements do far more than ensure that landlords collect rent.
Summers’ data reveals that these settlement agreements usually contain three features: 1) the landlord gets judgment of possession; but 2) execution of that judgment—meaning actual eviction—is stayed, provided that the tenant complies with certain conditions for a certain length of time; and 3) during that period, the landlord can move the court to execute the eviction if the tenant violates one of those conditions. Those conditions can include otherwise eviction-worthy missteps like missing rent. But they can include mundane, less eviction-worthy missteps, such as failing to file certain paperwork. The settlement agreement requires compliance with these additional requests—sometimes reflecting all of the lease terms—to avoid nearly immediate eviction. These settlements are common with sophisticated, represented institutional landlords (as opposed to mom-and-pop lessors).
Summers analogizes these settlements to probation—which, like all good insights, seems obvious in retrospect. Summers rejects the typical categorization of settlements as either repayment agreements (settlements that require repayment of outstanding rent) and probationary agreements (settlements imposing behavioral terms, such as not having pets). Summers instead offers the new label of civil probation to describe settlement agreements that impose conditions on tenants (whether the conditions address repayment or behavior) and subject them to eviction if those conditions are violated.
The irony of studying Massachusetts is that it has relatively tenant-friendly housing laws, which might protect tenants from eviction for failure to comply with one minor lease term. But these settlement agreements effectively re-write those laws via contract. Like consumer contracts whose arbitration clauses effectively deny consumers the opportunity to access courts and class-action lawsuits, these agreements enable landlords to circumvent ordinary eviction proceedings when they return to court to execute their judgments. The result, as in the consumer context, is that contractual arrangements replace the underlying regulatory law—substantive and procedural.
The core insight is that these settlement agreements “place tenants under a more restrictive regime by which they can be evicted through an alternative legal process.” Landlords, having threatened eviction once, can impose onerous conditions with a hair trigger to future eviction, which helps the landlord not only collect rent but also compel other kinds of compliance. Indeed, this arrangement affords the landlord access to eviction as a remedy for minor missteps even if tenants have paid all rent. Eighty one percent of eviction orders in Summers’ study are issued within this civil-probation system, in contrast to 19% issued pursuant to judgment for the landlord after trial. This creates a shadow legal system, dictated not by housing law but by settlement agreements designed by landlords and their lawyers and imposing more onerous terms and obligations on tenants.
This shadow system also changes the procedural rules for eviction in four ways. It circumvents the statutorily prescribed system for serving a summons and complaint required for seeking first-order evictions; no such notice measures are required before moving to enforce a probationary settlement agreement. It circumvents statutory rules granting tenants extensive written discovery rights in regular eviction proceedings; when facing eviction for breach of a settlement agreement, “the tenant is not entitled to any discovery whatsoever.” It replaces tenants’ right to a trial for ordinary eviction with a right to a motion hearing over violation of a settlement agreement. Finally, after issuance of an eviction order, tenants are ordinarily entitled to an automatic 10-day stay (akin to the statutory period for filing a notice of appeal); that does not apply to evictions based on a probationary settlement agreement.
Summers’ article makes important contributions to the much-needed scholarship on state civil courts. Some of these trends are reminiscent of themes often examined in the federal court literature, such as the role of parties in crafting procedures and potentially circumventing procedural rules. Here, however, these dynamics play out in the context of what Carpenter, Shanahan, Mark, and Steinberg call “lawyerless courts,” where in most cases at least one party is unrepresented. Wherever one falls on the propriety of party-driven procedure in federal court, where 90% of cases involve parties represented on both sides, one-party-driven procedure should concern us all.
Summers concludes the article by calling for even more research. Her study focuses on Massachusetts, a state with tenant-friendly eviction rules. One could imagine that civil probation agreements in other states might have different features operating against a different legal regime. Likewise, Summers states that civil probation settlements are the most common means of resolving cases in the Massachusetts courts she surveyed, but comprise only 37% of cases. There are non-trivial numbers of voluntary dismissals (24%), move-out agreements (19%), default judgments (15%), and even trials (4%). One might expect these percentages to vary across different jurisdictions. (See, for example, Lauren Sudeall and Daniel Pasciuti’s excellent recent study of Georgia’s housing courts.) But each category raises its own issues, and there is value to identifying them and their prevalence in different contexts.
The contribution here is undeniable. Summers adds to a growing wealth of scholarship on state civil courts that will help us all better understand civil procedure across all kinds of courts all across the country. It is a welcome answer to our pleas.
Elizabeth Chamblee Burch & Margaret Williams, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd
, __ Cornell L. Rev.
__ (forthcoming 2022), available at SSRN
How should we measure the value of an article? Easy metrics come to mind: citation counts, the h-index, SSRN downloads, likes and retweets, etc. All reflect the pathogenic logic of YouTube and Instagram celebrityhood transposed to legal scholarship. We all know that. Yet many of us pour over top-10 lists of most-cited scholars in different fields, compare downloads, and fret when a forthcoming article in our area does not cite us. When the masters behind the tyranny of the U.S. News metrics flirted with including citation counts, more than a few corners of legal academy prepared to fall in line. Some perhaps a bit too eagerly.
How about other (anti-)metrics: humanity and compassion? A bit quaint, perhaps, too cute in a hardnosed data-driven world. But why not focus on meaningful markers of human flourishing?
Elizabeth Chamblee Burch and Margaret Williams’s new article would score high on both counts.
The article opens with the obligatory observation in the field that MDL caseloads swallow up more and more of the federal docket and involve many high-profile issues (e.g., opioids). This trend has drawn significant scholarly attention. Yet we still know little about the individual plaintiffs in many of these MDLs. Their views, concerns, and frustrations have largely remained hidden. Burch and Williams conducted a survey of plaintiffs in numerous MDLs to understand their perspectives and inform numerous doctrinal debates.
Burch and Williams begin by rehearsing MDLs’ transfer provisions and specialized litigation procedures. They contrast these structural features with the main findings of the procedural justice literature. That literature suggests individuals value proceedings that allow for participation (or at least presence), that are intelligible, where an attorney they trust can influence proceedings, and where a judge considers the facts of their case. MDLs might be efficient (allowing for one judge and a few adjuncts to handle huge numbers of cases), but they purchase such efficiency at the cost of distant proceedings that drag on for years, that are led by a team of attorneys with no relation to most plaintiffs, and that rarely concern themselves with the messy business of understanding the stories of individual plaintiffs.
Then comes Burch and Williams’ main contribution: they ask a bunch of plaintiffs a bunch of questions. The article analyzes how these answers relate to important doctrinal questions, raise ethical concerns for the often absent or dismissive MDL attorneys, and generally show “a system under stress,” often unable to meet basic thresholds of what we expect from a proud judicial system. The article includes various proposals to ameliorate the current state of affairs, ranging from required attorney public-disclosure statements to technologically enabled transparency measures (Zoom MDLs!) to appointment of separate attorneys for separate interests.
I could summarize the article and its practical, doctrinal, and theoretical points at great length. But the point of the article is to let MDL plaintiffs speak in their voices. So here are a few quotes from the article. (There are many more and they deserve to be read with care.)
- “I was on an assembly line and just waited for years.”
- “I feel that the judicial system is treating this serious matter just like a mass production of a product and not as legal human suffering cases where people’s lives are at stake.”
- “It was a total failure of the system. I lost faith in the legal system and feel these multi district lawsuits do not help the individual in any way.”
- “I absolutely feel like I don’t matter. I would even say I kinda feel like my attorney just wishes I would die so they could forget about the whole thing.”
- “I feel as though I was never represented. To this day I have never spoken with the attorney . . . . I had absolutely no input in my own case.”
- “[My lawyers] waited till the night before to tell me that I had a deposition the next morning” and then “no showed and the person from Johnson and Johnson had to conference call them in so they could continue. I walked into that deposition so unprepared and alone.”
- “I felt like I didn’t matter at all and I was just another number.”
- “My life has been ruined and my attorney apparently doesn’t care. There’s been no personal interaction with him.”
One might have different reactions at this point. One is to examine the data and the process that generated it. There are weak points. For example, the survey focuses on plaintiffs in 26 thematically linked MDLs out of hundreds available. The survey was web-based, not administered in person or on paper. The authors relied on social media, webpages, plaintiff’s attorneys, and news coverage to spread the word about the survey. It yielded 217 unique and verified responses (the authors also “spoke with over 20 [plaintiffs] by phone and corresponded with over 90 by email and electronic messages”). In short, the survey is not random and it is difficult to identify a population from which it samples. Also, as the authors acknowledge, “it is possible that those who felt more strongly about their experiences might have been more likely to participate and, of course, recollections may be tainted by any number of biases.” As such, all claims that rely on the representativeness of the survey must be read with lavish caution.
But perhaps that misses the point. Perhaps a better reaction to the many quotations in this article is to reflect on the suffering and outrage that these people experienced within these MDLs. Perhaps one might even ponder one’s role in all of this. I wondered if I had trained any of the lawyers involved. That is uncomfortable terrain, and I found myself instinctively reaching for the familiar comfort of literally any other article to avoid the emotional drain of this one. I am humbled by the compassion and humanity it took to research and write this article.
Of course, it could be that the survey responders are outliers. But I am not sure anymore. Are there accounts of people ennobled by MDLs and pleased with the procedure? Plaintiffs who were properly treated, respected, their stories heard and their view of the legal profession, the legal system, and the rule of law enhanced? Such people might exist (after all, without MDLs they might have been unable to find a lawyer and sue at all). But perhaps it is time for MDL proponents to find these people and bring forward their side of the story. As it stands, we have many stories that make the usual invocations of efficiency and lack of alternatives ring hollow.
Cite as: Roger M. Michalski, In a Different Voice
(November 18, 2021) (reviewing Elizabeth Chamblee Burch & Margaret Williams, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd
, __ Cornell L. Rev.
__ (forthcoming 2022), available at SSRN), https://courtslaw.jotwell.com/in-a-different-voice/