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Secrets and Lies in the History of US Adjudication

Amalia Kessler’s book, The Invention of American Exceptionalism, is a rich history of American procedural development. The book, which is meticulously researched, sets procedural developments in their political context, and is an excellent example of a social history of law. She describes the relationship between 19th-century procedural developments and struggles over both capitalism and race. She traces English influences on our history, such as the development of equity practice, and French influences, such as the Freedmen Bureau Courts, which were inspired by French conciliation courts. Among other things, Kessler unearths the American equity tradition and with it fights over judicial power versus lawyer (and jury) power, as well as the development of lawyering as we know it today.  There is too much in the book for me to adequately summarize it, so instead I will offer two vignettes from the book, the first conceptual and the second a narrative, both focused on the antebellum history of equity.

The first, conceptual, vignette describes the requirements of historic equity procedure and helps us understand our own practices by making them strange to us. Indeed, one of the best things about reading a historical study such as this is learning to understand our world in new ways by comparing it with a past understood on its own terms. So it is with the story of equity and the judicial search for truth. The modern cliché is that there was never a better test of truth than the cross examination. This idea, Kessler shows, was invented in the first decades of the nineteenth century by lawyers seeking to show their value to clients and to society. In equity practice at that time, a very different view of how to get to the truth prevailed: the truth would be best obtained in secret, without the pressures of the parties bearing down on witnesses to alter their stories.

In its ideal form, equity practice required that the judicial officer (the chancellor or an appointed magistrate) question witnesses in secret. The officer would take notes on the testimony of the witness without the lawyers or parties present. This was the equivalent of what is known today as a deposition. Because it was in secret, the lawyers could not cross examine the witnesses. Indeed, they did not know what the witness told the judicial officer so they could not use that witness’s testimony to prepare other witnesses or their own clients for their deposition. When all the witness testimony was taken and every piece of evidence admitted, the testimony would be published to the lawyers – that is, it would be made public – and no more evidence could be introduced. At that point, lawyers could use the testimony to argue their case. Secrecy was the path to truth-telling.

This is a very different conception of human psychology than that found in the “crucible of trial” formulation so popular today. Instead of getting at the truth under the pressure of that Perry Mason moment when the witness is confronted by her own lies, the truth is obtained by relieving the pressure and allowing the witness room to be honest without attorney intervention or prompting. If the witness could not be influenced during the proceeding by the lawyer, she was more likely to be truthful. If the attorney could question her and prepare her to conform her testimony to that of other witnesses, she was more likely to misrepresent the truth to favor one or the other of the parties. This is similar to the principle that governs the German system today, as I understand it, in which the judge questions the witnesses and preparing a witness for testimony is an ethical violation. Not so in our system, where lawyers conduct depositions outside the judges’ presence and not preparing a witness is malpractice.

What happened to the idea that truth is best obtained in secret, without lawyer involvement? In his masterful history of procedure, How Equity Conquered the Common Law, Steve Subrin argued that the Federal Rules of Civil Procedure largely represent equitable practices rather than those of common law courts. Yet our rules and trial procedures depend on lawyer-led interrogation with no judge present; we cannot even imagine judges questioning witnesses in secret unless the matter concerned national security. How can this be? The answer is partly structural. The equity courts during the period Kessler covers were understaffed and therefore appointed magistrates, rather than permanent commissioners, to interview witnesses. Because the magistrates were not familiar with the case and were sometimes in the pockets of the lawyers, they became increasingly dependent on the questions lawyers submitted in advance of depositions. In fact, they became something more like stenographers than investigators.  Ultimately, driven by the fiscal and structural constraints and by the constant pressure of the bar, equity courts in New York abandoned secrecy and permitted lawyers to attend depositions. The problems and complaints about equity meant that for many years—and especially as his tenure neared its end—Chancellor Kent may have been one of the most hated men in New York. (Kent was one of the most famous jurists of his day and is often praised in procedural histories as the father of equity practice in the United States).

Lawyers, argues Kessler, wanted the opportunity to show off to justify their fees, and the way to do that was to transform litigation into a kind of spectacle, which in turn required lawyers to erode the secrecy that characterized equity practice. Secrecy limited their ability to perform for their client. Lawyers styled themselves as great orators, comparing their role favorably to Cicero, and attempted to reposition themselves as servants of the public good so that they might stave off accusations that they were manipulating legal process to increase their fees. The accusation that “doing well by doing good” is self-serving clap-trap should sound familiar to the modern ear.

One could not reasonably disagree with Kessler’s assessment that manipulation was part of the story of professionalization of the bar that in the mid-1800s. But there is something incomplete about this description of lawyers (then and now). The example that comes to mind is Richard Henry Dana, a Boston lawyer who in the 1840s and 50s represented fugitive slaves and persons tried for attempting to forcibly free them, as well as commercial clients. Dana wrote in his diary that his representation of fugitives brought him support from the Boston community and thus more clients, helping him to build his commercial legal practice. But Dana took a risk standing up to the slave power, which was strong in Boston (where the local mercantile elite benefitted greatly from slavery), and was attacked and severely beaten by a ruffian on the streets of Boston for doing so.

The issue of controlling lawyer behavior is a theme that runs through the book, one that is crucial to the policy questions (past and present) about lawyer-versus-judicial control over proceedings. This is one core aspect of the adversarialism to which Kessler’s title refers. And it brings me to the second vignette, a wonderful story from the courts of equity in late-seventeenth-century England that provides great insight.

A lawyer managed to get his case into the chancery court and this gave him an advantage over his adversary, who was only familiar with common law practices. How so? The lawyer knew the commissioner who had taken the testimony of his witness in the case and obtained (wrongfully) the transcript of that witness’s testimony. Recall that once all the evidence was taken in a case at equity, the judge closed the case by “publishing” the deposition transcripts. This lawyer took it upon himself to publicize the transcript after the first witness (his witness) had testified. He did this by coming to his rival’s office and reading the statement to him out loud. The common-law lawyer took his client immediately to the equity court and asked to provide his client’s side of the story. Unfamiliar with equity practices, he revealed to the commissioner that his opponent had read him the testimony. This was a disaster for his client. The commissioner told him that he would now close the case to further evidence, as the testimony had been publicized.

What does this story teach us? That some gamesmanship is unavoidable in any procedural system, and always has been – at least since the late 1600s. No matter what rules are adopted or protections created, unscrupulous actors will abuse their power, cheat their adversary, and distort the system of which they are a part. Within the judicial system, this is true not only of lawyers, but also of judges and magistrates. A court system, in the end, depends on the people who use it and the people who staff it. The problem, in other words, is not only the system but the participants. Out of the crooked timber of humanity, no straight thing was ever made.

The procedural system plays a crucial role in what people can and cannot get away with, and the norms within that system play a role in what people will and will not do. However well-designed the system, abuses are inevitable.   The philosopher Stewart Hampshire argued that moral conflict is eternal and that one must focus on procedures that allow contestation of moral norms. The court system offers one such set of procedures, but they are always eroding, in need of shoring up, and in danger of being distorted. The procedures themselves are a site of moral conflict. Kessler’s book is important because it reminds us both that these battles have been going on forever and that understanding past fights helps open possibilities for reform in the inevitable future conflicts.

Cite as: Alexandra D. Lahav, Secrets and Lies in the History of US Adjudication, JOTWELL (July 18, 2017) (reviewing Amalia Kessler, The Invention of American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 (2017)),

On Gender Disparity and Dialogue

Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017), available at SSRN.

Jennifer Mika’s essay examining the scarcity of women arguing before the Supreme Court is a valuable contribution to a growing literature tracking gender disparities at all stages of the legal profession. Research has examined disparities in the way men and women experience the law school classroom, interact with professors, obtain clerkships, make partner at private firms, enter academia, gain tenure, and leave the profession altogether. Mika has made several contributions to this area of research.

In her latest work, Mika’s findings are stark. She draws upon two original data sets: one including every attorney who argued before the Supreme Court during the 2015-2016 term; the other including every attorney who has argued more than once in any term since 2010. During the 2015-2016 term, of the 117 people who argued before the Supreme Court, only 20 were women, or 17%. And since 2010, only 15 of 80 advocates who argued more than one case before the Supreme Court, or 19%, were women.

Mika also accumulated revealing data regarding the employers of the men and women who argued before the Court. During the 2015-2016 term, of the women who argued, 35% were from the Office of the Solicitor General, another 35% were employed by other federal government entities (for example, attorneys from various divisions of the Department of Justice) or state governments, and 25% were in private practice. This distribution contrasts sharply with the distribution of men: only 12% were from the Office of the Solicitor General, 16% were employed by federal or state governments, and 67% were from private practice. In other words, women were much less likely than men to argue before the Supreme Court from private practice. Indeed, only four of the 80 repeat advocates since 2010 were from private practice.

From there, Mika suggests possible explanations for the disparities. Here, the essay is admirably restrained: legal scholars often try to point to a single factor as the explanation for the phenomenon they are discussing. Mika, on the other hand, emphasizes that the explanations for the disparity are likely multiple and that her discussion is likely incomplete. Rather than attempting anything like an exhaustive explanation, she focuses on two possible causes.

The first and more persuasive explanation is the paucity of women partners at private law firms. A woman in private practice who argues before the Supreme Court will most likely be a partner, not an associate. And since women are dramatically underrepresented among partners at private law firms, it is statistically less likely that clients who seek representation from the private sector will select a woman advocate rather than a man. Of course, this explanation merely leads to another question: why are there fewer women than men who are partners at law firms? Since many law firms now hire men and women in equal numbers, the disparity at the partner level is due to attrition. A significant literature has contemplated the causes of this attrition, with plausible hypotheses ranging from the “old boys club” atmosphere of some firms, to a lack of female mentorship, to parental leave policies that disadvantage women, to subtle and perhaps subconscious bias against women that creates a negative work environment, to straightforward discrimination because of gender.

Whatever the cause of the dearth of women partners, Mika does not contemplate an interesting and related question. Suppose that the numbers of men and women partners at private law firms were equal. Would the disparity in the number who argue before the Supreme Court disappear as well? One can think of reasons that perhaps it might not. For example, even if women partners are available in equal numbers, biases among private sector clients might lead to a preference for men as Supreme Court advocates. Moreover, the most relevant comparison is arguably not to law firm partners as a whole, but to the subset of law-firm partners running the appellate practice subgroups in large law firms or working at boutique appellate litigate firms. This specialized subset of partners is disproportionately comprised of former Solicitor Generals or Deputy Solicitor Generals, who also tend to be men—indeed, the only female former Solicitor General, Justice Elena Kagan, is for obvious reasons conflicted out of arguing before the Court.

Somewhat less persuasive is Mika’s evidence for a clear causal link between clerking and becoming a Supreme Court advocate. Most Supreme Court advocates have clerked, and of those a not-insignificant subset have clerked on the Supreme Court. Mika observes that—of repeat advocates since 2010—53% of women advocates and 65% of men advocates have clerked on the Supreme Court. She reasons: “[w]hile Supreme Court clerkship experience does not appear to directly impact an advocate’s likelihood of becoming a Supreme Court advocate generally, it does appear to be an important experience for attorneys interested in becoming a frequent Supreme Court advocate and, by extension, a Supreme Court expert.” She further observes that fewer than one-third of Supreme Court clerks have been women in each year since 2010. While the connection among clerking, clerking on the Supreme Court, and becoming an advocate before the Supreme Court is intuitively plausible, the data suggest there is a relationship between the latter two, but that a Supreme Court clerkship is by no means a requirement. Nearly half of women and over a third of men who become repeat advocates before the Court do so without a Supreme Court clerkship. Still, Mika’s framing of the possible connection is appropriately limited, and she notes that future research may illuminate—or eliminate—the possibility of a causal link.

More broadly, Mika explains that her essay “strives to start a dialogue about how the gender gap in Supreme Court advocacy can be closed.” The goal is admirable given that many people are determined not to have conversations about gender disparities in general, and gender disparities within the legal profession in particular.

A decade ago, when I was a third-year law student, I noticed a striking gender disparity in the notes published in the Stanford Law Review each year. As a member of that journal, I sought information from my fellow editors about the number of men and women who submitted notes for publication. I reasoned that a publication disparity that tracked a disparity in the number who submitted notes would suggest one explanation, while a publication disparity greater than the submission disparity would suggest another. But the issue remained unexplored: my fellow editors informed me that providing me with the information I sought would raise “confidentiality concerns.” Of course, that explanation could not be the real explanation: someone had the information about who had submitted notes each year, and all I needed was the total number of men and of women who submitted notes, not their actual names.

Dialogue resistance continues today. Not long ago Brian Leiter published a set of his citation rankings, and I wrote up a blog post in which I considered why most of the most cited academics are men. A senior white male professor vehemently insisted to me on social media that obviously men are cited more than women because men publish more than women. When I responded with some data indicating a disparity in per-paper citations, he dismissed it by saying that men and women were both cited “between eight and sixteen times per paper.” Without picking up my calculator, I was pretty sure that the difference between eight and sixteen was a fairly substantial one—and I was pretty sure my interlocutor knew it—but he was tenured and at the time I was not. So I let it go.

The larger point is simply that we should not let the dialogue go. We should not be afraid of asking hard questions, of collecting data and allowing those data to lead us to the most plausible conclusions. My sense is that many well-credentialed white men are, on some level, afraid of examining gender disparities because they are afraid of what it might say about their own achievements. Investigation might well reveal that their accomplishments are due not only to intelligence, skill, and hard work, but also to social factors ranging from implicit bias to workplace leave policies. Admitting that the playing field might not be entirely level forces us to confront the possibility that at some point, some of us might have gotten things we did not earn purely on merit. That is a hard thing to confront. But a fear of the truth is not a reason to avoid dialogue about gender disparity.

Mika’s paper presents interesting and important data and discusses those data in a thoughtful way. Future investigators would do well to build upon her research. Her work contributes to the gender disparity dialogue, and I liked it a lot.

Cite as: Nancy Leong, On Gender Disparity and Dialogue, JOTWELL (June 16, 2017) (reviewing Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017), available at SSRN),

Rethinking Judicial Independence

Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. (forthcoming 2018), available at SSRN.

It is an extraordinary time when the following sentence—“it is hard to underestimate the importance of [X]”—has a plethora of topics all credibly vying for the position of “X.” Appreciating the competition, one would be hard-pressed not to include the independence of the judiciary as a prime candidate. When the eventual President calls into question the impartiality of a judge based on the judge’s “heritage” or when a court’s ruling on the administration’s travel ban might not be heeded, at least two conclusions can be drawn. First, the independence of the judiciary is presently being tested. Second, the independence of the judiciary may well be needed more than ever. Against such a backdrop, it is vital for current scholarship to provide a way to think through and assess that independence.

Enter Tara Leigh Grove’s thoughtful new article, The Origins (and Fragility) of Judicial Independence.

Drawing in part from her own (excellent) past work, Grove undertakes a significant examination of the independence of the federal judiciary. She traces the historical arcs of several key contestations between the judicial branch and one of its sibling branches, including the failure to comply with a court order, the potential removal of a judicial officer outside the impeachment process, and court packing. Though these contestations have received scholarly attention before, Grove brings them together in a new way. In so doing, she provides a persuasive account of how these various attempts to curb the courts were not only not verboten, but were embraced in the early days of the judiciary—and how political actors ultimately reversed their course.

To focus on one key interbranch standoff, Grove provides an important analysis of the history of court packing. Contrary to its current “off-the-wall” status (to use a Jack Balkinism), Grove points out that in the nineteenth century, Congress several times packed and unpacked the Supreme Court, at least in part for partisan gain. The article then examines FDR’s infamous 1937 proposal to increase the size of the Court and the debates surrounding that plan. (Here, Grove keeps good company. Others, such as my colleagues Curt Bradley and Neil Siegel, have also done important work identifying the constitutional conventions surrounding court packing.) For Grove, the point is that although there was some pushback against the President’s plan when first proposed, it was not until the late 1950s that court packing came to be viewed as a “negative precedent,” based on the way political actors publicly spoke about the ill-fated attempt. That treatment continues even to this day. Grove points to comments made in the context of now-Justice Gorsuch’s nomination to the Supreme Court to show that the convention against court packing is alive and well.

Grove ultimately draws together this and other episodes to make a larger statement about the independence of the judiciary. To use the author’s words, what we may today take for granted—specifically, the existence of certain norms or conventions against various court-curbing measures—we may need to reconsider. The text and structure of our Constitution do not put them in place. And Grove’s careful rendering of the past informs us that none of the attempts to encroach upon the judiciary’s power had to be resolved as each was. Those of us playing at home should keep in mind the contingent nature of the courts’ trajectory, and that what has been done can be undone in the future.This article makes a substantial contribution to the existing literature on judicial independence and simultaneously prompts several important questions. For one, might there be other ways of gauging judicial independence beyond the clearly significant ones Grove investigates? For example, in the early 2000s Congress contemplated requiring courts of appeals to publish all of their opinions, contrary to the courts’ own decision(s) to dispose a majority of cases via “unpublished” orders. This led to a confrontation between Congress and the judiciary and a question about the extent to which the courts’ own power to decide the form of its decisions could be curbed. I mention this point not to begin a game of everyone-pull-out-their-favorite-interbranch-contestation (that should be reserved strictly for social gatherings), but to question how we know we are looking at the “right” moments between the judiciary and its sibling branches and whether it might be worth including others in the canon.

Another question looks beyond the federal courts to their state counterparts. To again focus on court packing, it is remarkable how this court-curbing measure is “off the wall” with respect to the former, but is apparently on-the-wall with respect to the latter. A new report by Alicia Bannon and Nathaniel Sobel at the Brennan Center documents an increased politicization of state courts through various legislative measures, including recent attempts to increase or decrease the size of state appellate courts across the country. We might wonder more broadly to what extent conventions within the federal judiciary translate to the states. If the answer is “not much,” we should ask why this is so, and what this means for the independence of our state courts.

These questions further underscore the importance of what Grove has hit upon. The Origins (and Fragility) of Judicial Independence provides a careful and persuasive account of a vital topic, making a substantial contribution to an already robust literature. Such a contribution is critical now. One can only hope that her conclusion about the judiciary’s fragile independence is not tested any time soon.

Cite as: Marin Levy, Rethinking Judicial Independence, JOTWELL (June 5, 2017) (reviewing Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. (forthcoming 2018), available at SSRN),

What Judges Can Do About Implicit Bias

Andrew J. Wistrich & Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, in Ensuring Justice: Reducing Bias 87 (Sarah Redfield ed., forthcoming 2017), available at SSRN.

For some years now, scholars have discussed the influence of implicit bias on decision-making. While many argue that conscious bias is decreasing,1 studies show that the impact of unconscious bias is significant. Although scholars, including Judge Andrew Wistrich and Jeffrey Rachlinski, have shown that judges possess such bias, judges—SCOTUS included—have not been sufficiently aware of the problem. The relatively recent change to the standard for dismissing a claim on a Rule 12(b)(6) motion illustrates this point.

In Bell Atlantic Corporation v. Twombly, Justice Souter formulated the new plausibility standard for deciding whether a claim should be dismissed. Later, in Ashcroft v. Iqbal, Justice Kennedy expounded on this new interpretation, stating that a judge should rely on her “judicial experience and common sense” to decide whether a claim should be dismissed. Despite the importance of this modern invocation, the Court cited no evidence to support relying on these intuitions. Scholars, including Steve Burbank, publicly questioned the use of this information as inviting subjective judgments by judges to dismiss cases that they disfavor. But courts continue to embrace this SCOTUS-endorsed phrase and employ it in their quest to decide whether claims should be dismissed. Should they?

Judge Wistrich and Rachlinski’s important contribution to a new American Bar Association book, Ensuring Justice: Reducing Bias, should call into question the Iqbal rule that courts use their judicial experience and common sense. The authors show that judges’ decision-making may be compromised by implicit bias and discuss what judges can do to combat this bias.

The authors first explain that people decide in two different ways: intuitive and deliberative. Intuitive decision-making is instinctual and emotional—referred to at times by psychologists as System 1 reasoning. Deliberative decision-making involves consciousness, effort, and time and is referred to at times by psychologists as System 2 reasoning. Where the two types of reasoning conflict, people—including judges—tend to rely on intuition.

But intuition can hamper judicial decision-making. For example, studies have shown that a number that is irrelevant to a determination of damages can influence a judge’s decision regarding damages and that a judge likely also will consider inadmissible evidence. Additionally, while judges may deny the influence of emotions, emotions are a part of intuitive decision-making. Based on irrelevant emotions, judges may decide an issue of statutory interpretation favorably for the defendant because of certain characteristics of that individual, such as why they took a drug. Intuition also tends to make people possess bias toward their own groups. For example, a study demonstrated that a group of judges exhibited bias toward litigants from their own state. Racial bias may be another type of in-group bias. Using the Implicit Association Test (IAT), the authors found that judges possess the same level of implicit bias against African-Americans as most lay adults.

These studies show judges are human—sharing problems that the rest of us face. Thankfully, judges can try to combat these issues. First, deliberative, System 2 decision-making can help judges avert their reliance on intuition—that is, knowing they have bias can help judges avoid their bias. Second, several different tests and methods can aid judges. For example, they can take the IAT, which permits them to understand that they may need to account for implicit bias and alerts others to the need for training judges who possess such bias. Because judges tend to think they are better than most at avoiding racial bias, actually taking the test will be a particularly useful first step to lessen the effects of bias.

In addition to awareness through the IAT, the authors propose a variety of ways to combat bias, only a few of which I highlight here. Increasing from one to three the number of trial judges who decide any important issue is a particularly innovative, interesting proposal. While the authors recognize the difficulty of implementation given the current allocation of resources, their idea is compelling because of the noted research on how outcomes improve by increasing diversity on appellate panels. Additionally, I want to point out that historically the importance of more than one judge deciding an issue was recognized. In late eighteenth-century England, a panel of three judges would determine issues such as whether a new trial should be ordered in a case or whether a case should be dismissed on a demurrer.

The authors propose a number of other ways to reduce implicit bias in the judiciary. Another favorite of mine is mindfulness meditation. Mindfulness is popular these days. It’s used in companies and classrooms to train people to recognize their thoughts and emotions that arise, but to let go of them to be in the present. We encourage students at the University of Illinois to consider practicing it to reduce stress. The authors argue that mindfulness may help judges curb their reliance on inappropriate reactions.

Judge Wistrich and Rachlinski recognize that there are also indirect ways that implicit bias can be countered. For example, judges may rely less on intuitive decision-making if the time for decision-making were increased and more written opinions were required.

The authors also emphasize that others who help judges, such as police and prosecutors, should be trained to combat the implicit bias that they possess.

Judge Wistrich and Rachlinski’s chapter and previous work on implicit bias in the judiciary are incredibly important. The chapter helps us to understand influences on judicial decision-making and how to combat these problems. Through the chapter, the ABA book, and other efforts, such as training of judges by the Federal Judicial Center under the leadership of Judge Jeremy Fogel, important efforts to reduce implicit bias are underway.

Lastly, the authors’ chapter on implicit bias should specifically call into question the Supreme Court’s admonition in Iqbal that judges should rely on their “judicial experience and common sense”—a phrase—as I mentioned—that the trial and appellate courts continue to invoke in their opinions.

  1. Despite these arguments, my co-author and I show that quite a bit of conscious bias remains in employment settings. Sandra Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law (2017). []
Cite as: Suja A. Thomas, What Judges Can Do About Implicit Bias, JOTWELL (May 22, 2017) (reviewing Andrew J. Wistrich & Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, in Ensuring Justice: Reducing Bias 87 (Sarah Redfield ed., forthcoming 2017), available at SSRN),

But the Feds Do It That Way!

Stephen N. Subrin & Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (2016).

Although state courts handle roughly ninety-five percent of all civil cases, federal procedural law dominates reform initiatives, academic discussions, and legislative attention. In line with this federal focus, there continues to be a push for state court systems to conform their civil procedural rules to the most recent amended version of the Federal Rules of Civil Procedure. In their new article, Stephen Subrin and Thomas Main reject this unreflective state emulation of federal procedure.

Subrin and Main begin by demonstrating that the original promise that the Federal Rules would lead to universal uniformity has not been met. They track this lack of uniformity across four dimensions.

First, the promise of trans-substantive uniformity has not been met. That desire pushes Federal Rules drafters toward a standards-based approach, as opposed to a rules-based approach, to procedural law. This, in turn, leads to substantial disuniformity in practice, given the discretion inherent in a standards-based system.

Second, the promise of uniformity across federal districts has not been met. Subrin and Main point to the explosion of Local Rules made pursuant to Federal Rule 83; the Civil Justice Reform Act of 1990, with its requirement that each district adopt a plan to address the expense and delay of litigation; and general orders, standing orders, special orders, scheduling orders, minute orders, and other practices of individual judges, all of which diminish uniformity across federal districts. See, e.g., Guidelines and Orders (D. Kan. 2017).

Third, prior to the adoption of the Federal Rules in 1938, the Conformity Act of 1872 provided intrastate uniformity of procedure (at least for suits at law) between state courts and federal courts sitting in the same state. While the adoption of the Federal Rules disrupted this intrastate uniformity, the drafters assured the bar that the states would soon adopt the Federal Rules and restore intrastate uniformity. While small-population states by and large adopted the Federal Rules as their state procedural model by the mid-1970s, nine out of ten of the largest-population states still have not. And, Subrin and Main claim, even the adopting states themselves often decline to enact newly promulgated, substantial amendments to the Federal Rules.

Fourth, because they assumed states would adopt the Federal Rules as a model, the drafters promised interstate uniformity of procedure as well. For the reasons recounted above, this promise has not been met, either. Subrin and Main’s point in demonstrating these failings in the creation of intra-jurisdictional uniformity is to suggest that the entire goal of creating unity by way of textual rule is quixotic. Thus, they suggest, the entire goal of seeking state and federal procedural unity is not a sound one.

In the second half of the article, Subrin and Main more pointedly address why states’ unreflective emulation of the Federal Rules constitutes poor policy. They offer numerous grounds for consideration:

  1. The Federal Civil Rules Advisory Committee has been biased toward defendants for decades, recounting a series of studies in support of this proposition. The Federal Committee obsesses over “big discovery” cases, although such cases form a very small statistical slice of the federal civil docket, (I hope the reader will excuse one lengthy parenthetical, but this is a point worth repeating often: There is no empirical evidence for the idea that discovery is explosively expensive in the overwhelming majority of cases. See Emery G. Lee III & Thomas E. Willging, Fed. Judicial Ctr., National, Case-Based Civil Rules Survey: Preliminary Report to the Judicial Conference 43 (2009), (concluding that, at the median, discovery cost about 1.6% of the stakes for plaintiffs and 3.3% of the stakes for defendants in 2009 with the median stakes coming in at $160,000); Emery G. Lee III & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation, 60 Duke L.J. 765, 773–74 (2010) (finding that “[discovery] costs are generally proportionate” to client stakes in the litigation); Thomas E. Willging et al., An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B.C. L. Rev. 525, 525, 531 (1998) finding similar results just ten years earlier); see also James S. Kakalik et al., Inst. for Civil Justice, Discovery Management: Further Analysis of the Civil Justice Reform Act Evaluation Data xxvii (1998), (“Discovery is not a pervasive litigation cost problem for the majority of cases.”). Explosive discovery cost cases account for 5%-15% of cases, depending on the year or the study. See, e.g.,  Suja A. Thomas & Dawson Price, How Atypical Cases Make Bad Rules: A Commentary on the Rulemaking Process, 15 Nev. L.J. 1141, 1147–49 (2015).) much less the state court dockets.
  1. State and federal systems face meaningfully different dockets and different docket concerns. Awards in state court are radically lower, with nearly 75% of matters resolving for less than $5200. More parties are unrepresented in state court, with 75% of matters involving at least one pro se party. Matters resolve more rapidly in state court, with nearly 75% of matters coming to resolution in less than a year. And state-court cases skew greatly toward non-complex collection actions, with contract claims accounting for 66% of the state dockets and torts accounting for but 7% of the docket.
  2. The multiplicity of post-1938 amendments to the Federal Rules have rendered federal procedure more expensive to litigants, more time consuming, and more subject to judicial discretion. Doubling down on the expense point, they argue that the federal approach requires more judicial-branch financial resources than most states can afford.
  3. States can and should experiment with procedure.

There is much to appreciate in this paper. Subrin and Main’s argument constitutes a helpful reminder that state courts are not a discount brand of the federal courts. They are different institutions performing different tasks, working under different funding models, and serving different stakeholders. As someone who works on his state civil rules advisory committee, I appreciate the reminder that the needs of the state courts often are substantially different from those of the federal system’s. I fully embrace their full-throated federalism approach in principle.

Other aspects of the paper, however, gave me some pause. Subrin and Main express great discomfort with district court discretion in procedure, typically on the ground that a standards-based approach does not lead to uniformity. Assuming this is true, I do not see why a state court system should overly care about uniformity in procedural outcomes per se, assuming uniform application of a discretionary standard. This is to say, I do not see Subrin and Main make the argument that discretionary standards per se are to be avoided in state courts where, one presumes, there is not a historical commitment to uniformity akin to that found with the Federal Rules. Discretion often is good. Implementing state procedural policy though adjudication could avoid many of the problems with rules in the first place, because case-by-case decisionmaking is more flexible, dynamic, and incremental than rulemaking, in addition to being cheaper and easier to utilize in some circumstances.

For these reasons, administrative law—which is my favored interpretive approach to procedural matters—contains several doctrines that allow administrators to exercise equitable discretion and soften the hard edges of bright-line rules in particular cases. As Glen Staszewski and I have discussed elsewhere, trial-court discretion can be a sound procedural policy precisely because trial-court judges are typically better situated than rules drafters or appellate judges to make fine-grained procedural decisions based on their relevant experience and perspective.

Several of Subrin and Main’s arguments described above can be fairly grouped under an agency-capture heading. To be sure, the federal Civil Rules Advisory system has flaws—big ones, as I have outlined in prior work. Yet there may still be good reason for states to adopt the content of the Federal Rules. First, state-court rule drafters are not freed from these same political and capture concerns. Many states craft rules as statutes. Yet, I do not believe state legislators en masse will have greater expertise in this area than the Federal Advisory Committee or be less pressured from intensive interest-group lobbying than the Federal Advisory Committee. Often, a policy of “Our state follows the federal rules” stops a lot of injury off the top. Second, even in states that have advisory drafting committees, there is little evidence that these drafters will not have biases and concerns over capture, be they pro-defense or otherwise, similar to the Federal Advisory Committee’s. Third, as Subrin and Main argue, state judiciary budgets are under extreme stress, meaning there are no funds for the empirical work, which we have at the federal level, that should inform sound state rule creation. Lastly, because the Federal Advisory Committee’s work is high-profile, various interest groups can organize to follow the Committee’s recommendations closely and object to reforms these competing interest groups deem ill-advised. For example, in response to the aggressive anti-discovery amendments flowing out of the 2010 Duke Conference, more than 2300 comments were lodged with the Federal Committee. These organized movements forced substantial changes to the amendments proffered. It is not clear to me that proposed state procedural reforms have the same avenues for dissent, even if they are as closely watched as the Federal Committee’s work—which seems a dubious proposition in many states to begin with. The point is that a preference for state-level rulemaking should not idealize state rule-drafting processes. They make sausage in the state house as well.

These thoughts aside, any serious student of procedure should read this piece. It is thoughtful. It is provocative. It is well researched. And it is a lot of fun to read. Download it while supplies last!

Cite as: Lumen N. Mulligan, But the Feds Do It That Way!, JOTWELL (May 8, 2017) (reviewing Stephen N. Subrin & Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (2016)),

A Well-Pleaded Argument

Lonny Hoffman, Plausible Theory, Implausible Conclusions, 83 U. Chicago L. Rev. Online 143 (2016).

I should start by putting my own bias on the table: I think the changes to pleading standards brought about by Twombly and (especially) Iqbal are a really bad idea. Procedural systems that turn on early pleading of factual detail have failed for centuries to provide either accurate or efficient results. Rather, gatekeeping based on pleadings encourages and rewards pleading disputes, leads to wasteful motion practice about degrees of particularity, and, worse, the dismissal of meritorious claims under conditions of information asymmetry. Even if I did not hold these views, however, I would find much to admire in Lonny Hoffman’s elegantly structured response to William H.J. Hubbard’s article, A Fresh Look at Plausibility Pleading, an article that doubts that “plausibility” analysis has much impact and suggests that plaintiffs with weak cases are better off losing quickly.

Hubbard’s piece is a fascinating thought experiment: what if there were no pleading standards, so that decisions about what cases to bring and how to plead them were entirely in the hands of plaintiff-side lawyers? It is generally agreed that lawyers play a gatekeeping role in litigation. In fact, lawyer gatekeeping itself represents only a tip of the no-lawsuit iceberg, since studies consistently show that most people with a potential justiciable claim do not even consult an attorney. (American Bar Association, Legal Needs and Civil Justice: A Survey of Americans, Major Findings of the Comprehensive Legal Needs Study (1994); Hazel Genn, Paths to Justice: What People Do and Think About Going to Law (1999).) Nevertheless, Hubbard’s article contributed to the discussion by updating and attempting to quantify this effect.

Hoffman describes the way in which Hubbard combines economic theory with data from the Federal Judicial Center about median case values and litigation costs. As a result of this cost/benefit calculus, most meritless and very weak cases will not be brought at all. One might conclude from this that an additional rigorous screening mechanism is unnecessary (Hoffman) or unlikely to make a difference (Hubbard).

Hoffman’s article proceeds to tackle important flaws in Hubbard’s descriptive and normative conclusions, starting with the problem of information asymmetry. Hoffman concisely describes the problem:

How do information imbalances that favor the defendant (such as those in cases that turn on the defendant’s state of mind or on wrongful conduct that occurred in private) interact with a strict pleading filter? And the answer, as many scholars have noted, is that, when relevant information is primarily in the possession of the defendant, plausibility pleading can create a catch-22: the plaintiff needs access to information to plead sufficiently, but a pleading stage dismissal denies her the information that would have enabled her to plead a nonconclusory, plausible claim.

Hubbard recognizes that there may be many meritorious cases in which a lack of information at the outset leads to dismissal in the “plausible” pleading regime, but argues that those cases are doomed to lose in any case – that it is a lack of “facts” rather than the pleading rules that defeat such a plaintiff. As Hoffman’s article points out, however, this is just wrong. It is not that there are no facts to support this type of claim, but that without discovery the would-be plaintiff has no access to those facts. We should not assume that case-supporting information would not be discovered. The problem is exactly that a pleadings-based dismissal prevents the equalizing of information, not that the information must forever remain asymmetric.

Further, the pleading barrier might skew the lawyer-gatekeeping process so that fewer claims are even filed – the lack of discovery forces the lawyer to evaluate the probability of success based solely on facts known to the potential plaintiff, unaided by discovery. This is true not because a loss at trial would be inevitable, but because the lawyer knows that the pleading rule will allow no discovery. Because of the combined effects of dismissals and gatekeeping, the pleading filter will mean that private enforcement of civil norms will fail when it should have succeeded.

Hoffman’s article also points out that pleading-based regimes increase cost and decrease accuracy. In order to understand why this is so, one must understand that Iqbal requires a two-step inquiry. First, judges are instructed to go through the complaint to identify and consider only allegations of facts, ignoring things that are conclusory. In cases in which the plaintiff knows, and can plead, direct evidence of the defendant’s liability, there will likely be no motion to dismiss filed.

Many cases, however, will turn on circumstantial “facts,” and ultimately on the question of whether those facts support the inference needed to prove liability. The tricky and unpredictable task of separating facts from conclusions may well lead judges to discard as “conclusory” allegations that explicitly draw those inferences, leaving only isolated nuggets of information. The question is often not “no facts” versus “conclusive facts.” It is “some facts” that are within the plaintiff’s knowledge at the pleading stage. Consider an employment discrimination example. Suppose that the complaint states that the plaintiff’s supervisor called her an “ugly bitch” on two occasions, but did not do so when explaining why the plaintiff was not promoted. That namecalling is a “fact,” but an allegation that the plaintiff was denied a promotion based on sex might be disregarded as conclusory. (I’d disagree with calling it conclusory, but it’s certainly possible that a judge would do so.)

The analysis thus turns to the second step: do the non-conclusory nuggets of information plausibly support the needed inference? Iqbal provides little guidance on what this test means or what the judge may consider, but does suggest that the inference must be at least as plausible as competing inferences (fifty percent or better?), and that the judge should use his “experience and common sense” in making this decision.

Not surprisingly, this sketchily explained, fact-dependent analysis makes it very difficult to predict how a judge would rule on a Rule 12(b)(6) motion in any particular case. Consider, again, the employment example. Does the judge’s experience suggest that the use of such language supports an inference that the supervisor’s attitudes toward women affected the promotion decision? Does the judge’s experience suggest that the language is meaningless locker room talk? If the motion to dismiss is denied, the plaintiff will have the opportunity to do discovery to try to unearth additional circumstantial evidence of discrimination, which could strengthen the basis for an inference of discrimination. If the motion is granted, the plaintiff will never have the opportunity to learn what information available only to the defendant might reveal. With nothing more than the sexist epithets, the plaintiff might lose even on summary judgment under substantive Title VII law; but the summary judgment decision would not be made until after an opportunity to do discovery, while the 12(b)(6) decision is based on only those “facts” available to the plaintiff at the outset.

Given this process, I find interesting two of Hoffman’s points about early merits decisions mandated by pleading practice. First, the newly invigorated motion to dismiss comes with a cost to the court system. The existence of a high-reward-low-risk motion to dismiss has increased the frequency with which such motions are filed. Why would a rational defendant not routinely file such a motion – given the fuzziness of the law, such motions will not violate Rule 11, will cost plaintiffs time and money, will reveal much about what the plaintiff knows (and does not know), and may even result in dismissal. As I have written previously, this is consistent with the experience of countries whose civil justice systems continue to use pleadings as a tool for screening and issue-narrowing – the energy that U.S. lawyers spend on discovery disputes is, in those countries, poured into fights about pleading.

Because the rate of pleadings-motion practice has increased, the cost to courts and parties of those motions has also increased. In assessing systemic impact, that cost must be subtracted from whatever savings might result from the early dismissal of a small number of cases (as Hoffman reminds us, Hubbard contends that since lawyers already avoid filing weak cases in most situations, this number will be small). Unsuccessful motions will take more time and result in no cost savings to the court or the parties. A 12(b)(6) dismissal, if without prejudice, allows the plaintiff a second chance to plead more “facts,” and in some situations the plaintiff might have access to the necessary information. But those motions that result in a more detailed amended complaint but not dismissal are also unlikely to save costs, unless the amended complaint limits the issues (and thus discovery) in a way that the original would not have done. For example, it seems unlikely that the amended complaint in Branham v. Dolgencorp (in which the court dismissed as insufficient a complaint that clearly met the requirements of the then-existing negligence form pleading) saved any expense that would have been incurred under the original bare-bones slip-and-fall complaint. Even successful motions to dismiss on the pleadings will vary in the marginal cost savings of foregone case management and dispute resolution prior to settlement (court) plus foregone discovery expense (parties). And while some parties and courts might save costs, it will come at the expense of increased costs for other courts and litigants.

Second, early pleadings-based decisions require an undesirable change in judicial role. Hubbard argues that early dismissal is better for plaintiffs, even in the case of the intentionally biased judge. It is still better, he suggests, to lose sooner than later. But, Hoffman argues, this straw-man image of judicial malice ignores the real problem: the common combination of sparse facts and implicit bias causes even well-meaning judges to make worse decisions. It is becoming increasingly clear that all of us, including judges, perceive the world through a set of attitudes and stereotypes – implicit biases – that arise out of precisely the factors that Iqbal directs judges to use in making plausibility decisions, our “experience and common sense.” While judges can make an effort to become more aware of, and try to counteract, their own biases, doing so is much more difficult in situations in which information is sparse. Returning to the problem of information asymmetry, the information-poor plaintiff may not be able to provide a rich enough body of “facts” to convince a judge, perhaps against his experience and common sense, that a needed inference is plausible.

Hubbard may be correct that we will not soon have conclusive empirical evidence about the impact of Twiqbal on access to justice. Unfortunately, Hubbard’s Fresh Look discounts the ability of the civil procedure process to counter other problems. Information asymmetry? That is the problem, not the pleading rule (even though a different pleading rule could allow information exchange). Biased judges? That is the problem, not a pleading rule that helps empower and disguise that bias (when a different pleading rule would deter bias-based outcomes). As Hoffman’s article demonstrates, information matters and reliable process matters. The world prior to Iqbal was different in important ways, and we should not assume away its effects.

Cite as: Elizabeth G. Thornburg, A Well-Pleaded Argument, JOTWELL (April 24, 2017) (reviewing Lonny Hoffman, Plausible Theory, Implausible Conclusions, 83 U. Chicago L. Rev. Online 143 (2016)),

Erie and Equity

Michael T. Morley, The Federal Equity Power (March 1, 2017), available at SSRN.

Michael Morley has many skills we admire in a scholar: he is doggedly productive; he has an easy command of the established authorities; and he typically identifies sources that shed new light on the problem he has chosen to tackle. Perhaps best of all, Morley has a canny eye for the kind of project that has become ripe for careful exploration. His new article on the federal equity power confirms this.

We have enjoyed something of an equity renaissance in recent years. The Supreme Court has been busy, fashioning a body of federal equity law for application to a diverse array of problems. To be sure, the Court’s handiwork has drawn its share of criticisms, perhaps most pointedly from John Langbein. But it also has its share of defenders. In an elegant piece of writing (reviewed in JOTWELL), Sam Bray celebrated the Court’s new equity jurisprudence as a flexible body of principles drawn from the days of the divided bench. While Bray recognized that the Court’s equity might not pass muster as good history, he argued that it might nonetheless provide the foundation for a supple body of law.

Understanding the nature of federal equity power has become more pressing in the wake of the Court’s decision in Armstrong v. Exceptional Child Center. There, the Court refused to treat an action to compel state compliance with a cooperative state-federal spending program as an entailment of the Supremacy Clause; instead, the Court explained that the right to seek an injunction to compel state official compliance with federal norms was a creature of federal equity. While such remedies were ordinarily available to enforce certain federal rights (as in Ex parte Young and its progeny), they were displaced in the particular case by a federal Spending Clause statute that appeared to place remedial control in the state’s overseers at the federal agency level. Private enforcement had been displaced.

Along comes Morley to make sense of the federal equity power. While he does not set out to solve the Armstrong problem, his paper possesses an admirable clarity. He would extend Erie to issues of remedial power that some federal courts continue to view as governed by the equity power of the federal forum. His approach would significantly curtail the availability of a freestanding body of federal equity in cases otherwise governed by state law. By contrast, when the substantive right traces to a foundation in federal law, Morley would recognize broader federal equity power.

In doing so, Morley marshals a good deal of common sense, pointing out that equitable remedies create the outcome disparities that ordinarily bring the Erie Doctrine into play. He also shows that one cannot fairly link the federal equity power to any positive source in the federal rules of civil procedure or in applicable federal jurisdictional statutes, thus leaving it exposed as a body of judge-made law to which the Erie doctrine (the “relatively unguided Erie choice”) applies with full force. Morley echoes conclusions that Steve Burbank also reached in a different context, arguing against the Court’s reliance on federal (rather than state) equitable principles in assessing the availability of Mareva injunctions in Grupo Mexicano.

One might fairly ask how much difference it will make if a federal court were to evaluate the propriety of preliminary injunctive relief under a federal or state standard; after all, most standards consider such matters as irreparable harm and likelihood of success on the merits. And a federal judge, sitting in diversity, will evaluate likelihood of success by looking at the merits of the claim under applicable state law. To the extent that equity calls for the exercise of judicial discretion in weighing matters of more or less, the way one frames the standard may matter less than the proverbial size of the chancellor’s foot. But where state law speaks in more absolute terms, either requiring or forbidding injunctions in specific settings, the choice of state or federal remedial law can make all the difference. In those settings, remedial choices have a more dramatic impact on outcomes and on forum preferences, thus triggering the concerns that continue to underpin Erie. When a state says no to an equitable remedy on matters governed by state law, federal courts should pay attention; after all, we would expect a state court to refrain from equitable enforcement of the federal norms that the Armstrong Court said were a matter for federal agency enforcement.

Morley teaches another important and subtle lesson. By describing the world of pre-Erie, free-wheeling federal equity and contrasting it with the more circumscribed perception of federal common law authority today, Morley helps us understand nineteenth-century perceptions of federal equity as a system of remedies. He also shows that it can be quite difficult to account for the particular content of much of the old doctrine. Sometimes equity took its cues from English practice, sometimes from perceptions of remedial adequacy at common law, sometimes from more localized considerations. In the welter of doctrines, one has difficulty distilling an essence of equity that readily translates to our very different world of litigation today, after the merger of law and equity. This offers a cautionary tale for a Court apparently devoted to dusting off the old books and plucking equity doctrines of old for use as the measure of federal equity today.

Cite as: James E. Pfander, Erie and Equity, JOTWELL (April 4, 2017) (reviewing Michael T. Morley, The Federal Equity Power (March 1, 2017), available at SSRN),

Do Claims About Claims to Claims Matter?

J. Maria Glover, A Regulatory Theory of Legal Claims, 70 Vand. L. Rev. 221 (2017).

Oftentimes when we call a thing someone’s “property,” we do so to invoke a very specific picture of the owner’s rights to that thing. To call something “property” often entails significant limits to what one can do to regulate the thing. The Due Process Clause and Takings Clause both enter the picture. Even outside of legal discourse, the term “property” has a rhetorical power that brings to mind what Blackstone called the “sole and despotic dominion” one can exercise over the thing. That is why “[m]ine is often one of the first words toddlers learn.” To quote an old American Express commercial, ownership, like membership, “has its privileges.”

So one would think that conceptualizing a thing as “property” would have an important effect on how we think about the thing. But what if it doesn’t? What if it actually leads to inconsistent, irreconcilable views in different contexts? What if it turns out that thinking about something as “property” does not provide much analytic clarity at all?

This is the bold thesis of J. Maria Glover’s A Regulatory Theory of Legal Claims, where Glover takes on longstanding debates about the conceptual status of the legal claim. Civil procedure scholars continue to debate whether the legal claim is a party’s “property,” as opposed to an aspect of procedure that is subject to the discretionary regulation of the court. Glover’s goal is not to resolve the debate but to dissolve it, as a debate that does not have the significance that the debaters give it.

Her technique is quite clever. She examines the state of the debate in different procedural contexts to show that conceptualizing the claim as property can lead to different, often inconsistent views depending on the context.

Take, for example, the class action context. The class action has often been criticized because it takes away a class member’s control over her claim, and thus takes away an important stick in the property rights bundle. In fact, a class attorney can sell the class member’s property in a settlement without the class members’ consent. For that reason, courts and scholars have been wary of certifying class actions in many contexts. Consider, for example, Justice Scalia’s throwaway line in Wal-Mart Stores, Inc. v. Dukes, that class actions for injunctive relief “rightly or wrongly” do not require notice of the class action for the class members or provide an opportunity for the class members to opt out.

But if the class action can be understood as a “taking” of the party’s control over her claim, then a party should obviously have the power to sell the claim to whomever he or she wants. Not so fast. For example, recently there has been a rise in “alternative litigation finance,” understood as attempts to finance litigation by selling shares in a claim’s recovery. At the same time, there has been a rise in lobbying efforts to change the laws of champerty and maintenance, which prohibit such claim selling. One would think that, given the paternalistic bent of the class action, plaintiffs’ attorneys would work hard to preserve champerty and maintenance laws to protect the naïve interests of the claimholders. Similarly, one would think that the defendants’ bar, as champions of the property rights of the claimholders, would push for greater opportunities to sell claims. But the opposite is true, as Glover points out – plaintiffs’ attorneys love litigation finance and the defense bar hates it.

Glover’s point is not to identify hypocrisy in the debate over the status of the claim. Her point is to question the very debate itself. As property scholars have long understood, property rights in a thing are never absolute and are frequently regulated depending on the objectives of the law. I may own the land where my residence is located, but I may have to grant an easement to allow public access to the beach. Consequently, calling something “property” does not negate the ability of courts and legislators to restrict an owner’s use of it.

Glover seeks to import that property-law insight into procedure, not by settling whether the claim is property, but by looking at the objectives of the claim. Moving in a more functionalist direction, Glover argues that the extent of a claimholder’s control rights over her claim depends on the objectives that litigation of the claim is meant to achieve. As I have argued in my own work, if protecting control rights in a claim can lead to worse compensation and deterrence in certain contexts, we should not protect them. But if protecting control rights would help (or at least not impede) underlying substantive rights, then, by all means, protect those rights. These positions are not inconsistent because they are unified by the same objective of property law in general—that the regulation of one’s control over a thing should depend on what the law, and by extension society, wants to achieve.

This is why Glover calls her theory a “regulatory” theory of the claim, and in the latter part of the article Glover discusses the implications of taking this approach to contexts such as Rule 68 offers of judgment, alternative litigation finance, and, finally, the class action. Indeed, one important takeaway of the article is that courts are empowered to regulate claims consistent with substantive goals and institutional constraints.

Glover’s article makes her point in a very persuasive and fun way. Because it is theoretical, it differs somewhat from the articles that I have liked lots in the past. But it does share with those prior articles a sensitivity to how procedure works on the ground. Glover does not talk about theory for theory’s sake, but really looks at the practical implications of theory, bringing such abstractions down to earth. For that reason, Glover makes a significant contribution to the literature.

Cite as: Sergio J. Campos, Do Claims About Claims to Claims Matter?, JOTWELL (March 23, 2017) (reviewing J. Maria Glover, A Regulatory Theory of Legal Claims, 70 Vand. L. Rev. 221 (2017)),

The Impact of Wal-Mart v. Dukes on Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More a Wave Than a Tsunami

Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes, 48 Akron L. Rev. 803 (2015).

The Supreme Court’s decision in Wal-Mart v. Dukes set off a groundswell of concern among many scholars, lawyers, and legal commentators about its potential impact on employees’ capacity to collectively pursue relief, particularly for systemic intentional discrimination claims. As one of those concerned parties, I enjoyed reading the five-year retrospective by Michael Selmi and Sylvia Tsakos, which seems to suggest that Wal-Mart’s impact on such claims has been more of a wave than a tsunami. Selmi and Tsakos recognize the ways in which the Court’s ruling has taken its toll, but they highlight how much Wal-Mart’s impact is a matter of degree rather than kind. Pre-Wal-Mart, the class action landscape was characterized by skepticism toward nationwide class actions, greater merits-focused class certification, and jurisdiction-dependent class treatment. Post-Wal-Mart, those trends have expanded to the detriment of civil rights claims. While this expansion is normatively problematic, this article makes an important contribution to the literature by situating Wal-Mart historically and putting it into a broader perspective. In addition, Selmi and Tsakos identify a forward trend of class certification jurisprudence involving certain kinds of subjective employment practices, which have been found to satisfy Rule 23’s commonality requirement even under current class action jurisprudence.

The authors’ sobering observation that employment discrimination class actions alleging subjective practices have been struggling, combined with their positive observation that some of these class actions remain viable post-Wal-Mart, lead the authors to conclude that Wal-Mart’s effect thus far has been modest.

As an initial matter, the article establishes that Wal-Mart has changed the litigation landscape to the detriment of employees. For example, fewer plaintiffs have filed employment discrimination class actions, and those that have must incur substantial additional costs if they seek damages under Rule 23(b)(3). Moreover, emboldened by the ruling, more defendants are seeking to dismiss employment cases even before the class certification determination. (P. 804.)

The authors make no bones about their impression that the Supreme Court – and certainly its “conservative wing” – is hostile to class litigation in general and in particular to the kind of class action pursued in the Wal-Mart case. This hostility stems from the common-yet-unsupported perception that defendants are unfairly subjected to immense pressure to settle given the high costs and potential widespread liability class actions present. They argue that this overlooks the absence of evidence of potential blackmail, the availability of alternative tools for curbing settlement pressure, and the reality that plaintiffs face significant costs and risks too.

Initially, systemic challenges to facially discriminatory employment policies seeking injunctive relief made class certification straightforward. But as workers started to challenge subjective employment practices and to seek significant monetary damages (and a jury trial) for intentional discrimination pursuant to the Civil Rights Act of 1991, their capacity to unite under the umbrella of one lawsuit waned. Federal appellate courts split over the propriety of class certification under Rule 23(b)(2) — the traditional injunctive class action for civil rights cases. Some courts continued to allow employees to litigate collectively, while others rejected such routine certifications where employees sought monetary relief. This schism and differing judicial philosophies about aggregation naturally led to forum shopping.

The article contends that barriers to aggregation that existed prior to Wal-Mart, not surprisingly, have bled into the post-Wal-Mart era. This means that Wal-Mart is like its predecessors — a product of judicial hostility toward aggregation of employment claims that dates back at least a couple of decades. At the same time, the particular facts of Wal-Mart are distinct from typical employment class actions. The plaintiffs attempted to sew together the claims of 1.5 million women nationwide in a single suit on the ground that decentralized excessive subjective personnel decision-making was a policy that harmed women; this was a bridge too far for the Court. Although plaintiffs’ liability theory did not cover new ground, the size and scope of the case did. Consequently, no amount or type of evidence could satisfy the Wal-Mart majority that there existed a policy of systemic gender discrimination here.

Selmi and Tsakos pivot from establishing the fertile ground from which Wal-Mart swelled to how employment discrimination class actions have since fared. They conclude that for cases not alleging the identical theory pursued in Wal-Mart, there has not been a “death knell” of employment discrimination class actions.1 Given Wal-Mart’s unique facts, courts have been able to distinguish the case, thereby permitting certification or denying decertification.2 Some noteworthy appellate cases have breathed new life into the possibility of class certification for discriminatory subjective decision-making in the workplace. For example, in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., Judge Posner distinguished Wal-Mart and reversed denial of class certification where low-level managers exercised discretion but did so pursuant to two companywide policies that had an adverse disparate impact on African-American brokers. Another example is Scott v. Family Dollar Stores, Inc., where the court clearly delineated Wal-Mart’s strictures and permitted certification of a class action alleging discretionary employment practices. The Fourth Circuit concluded that commonality was satisfied where there existed a uniform corporate policy and higher-level managers were the ones making discretionary decisions that had a disparate impact on female workers or that revealed a pattern or practice of intentional gender discrimination. These appellate decisions demonstrate that the ambit of Wal-Mart’s reach may not be as wide as anticipated.

In sum, Selmi and Tsakos do a great job of making sense of a complex area of law by putting Wal-Mart into a broader context for analysis. Granted, their conclusion that Wal-Mart has not greatly diminished class certification for employment discrimination cases because it was already difficult to begin with is not good news for plaintiffs. This observation speaks only to Wal-Mart’s relative impact, and the certification bar was already high before the Wal-Mart decision. More encouraging is the jurisprudence emanating from lower courts that define the contours of Wal-Mart and forecast potentially viable employment discrimination class actions.

Selmi and Tsakos have made a compelling case for why Wal-Mart has not marked the “death knell” of collective actions challenging workplace discrimination. This is crucial. It also leaves a question: Is this good enough? Teeing up this question is an equally important contribution of this article. I look forward to our answering this next fundamental question in the future.

  1. The authors, however, rightly struggle to explain why plaintiffs’ subsequent smaller regional versions of the parent Wal-Mart case have not been certified if size explains the Supreme Court’s rejection of a national class action. []
  2. The authors note, however, that on the district court level, some courts have seemed to reflexively apply Wal-Mart to deny class certification, even in cases where the facts could not be more distinct from those in Wal-Mart. []
Cite as: Suzette M. Malveaux, The Impact of Wal-Mart v. Dukes on Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More a Wave Than a Tsunami, JOTWELL (March 7, 2017) (reviewing Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes, 48 Akron L. Rev. 803 (2015)),

(Almost) Everything You Wanted to Know About Class Actions

With the advent of the new administration, aggregate litigation is under attack again. As of this writing new legislation aimed at limiting class actions has been introduced in Congress. This is the perfect time for Congresspersons and their aids to read John C. Coffee’s book, Entrepreneurial Litigation: Its Rise, Fall, and Future – both friends and enemies of the class action will benefit from reading this fair-minded and nuanced analysis.

Before delving into the reason for this recommendation, a bit of background. In the scholarly literature on class actions there have been two big ideas. The first was that class actions can have a deterrent effect on large institutions by permitting the enforcement of laws when many people suffer a wrong too small to merit bringing a suit. It is easy to forget that this is in large part what class actions are about. The earliest statement of this idea that I know of was in 1941 in a law review article by Harry Kalven, Jr. and Maurice Rosenfeld. The second big idea was the observation that the class action separates ownership of claims from control of claims, much like the corporate form separates ownership from control of the firm, giving rise to agency costs. John C. Coffee, Jr. has long championed this formulation, first presenting it in 1986.

All subsequent work on class actions has built on, refined, and criticized these two big ideas. A prominent and important strand of scholarship on class actions, for example, demonstrates that given the diagnosis of agency costs, class actions must be thought of as posing problems of governance. Another similarly important strand looks at class actions as problems akin to those solved by the administrative state.

Coffee has now published the sum of his work on class actions in this new book, covering almost everything you wanted to know about class actions in clearly written and engaging prose, from the history of attorney’s fees to the European experiment with the device. (I say almost because there is one omission in the book—an omission I will get to at the end of this review.) Coffee promises a “warts and all” look at the class action and he delivers on this promise. The book is critical of plaintiffs’ attorneys, defense attorneys, and judges in class actions; it sees the strengths, weaknesses, and incentives of each of these actors with a clear eye.

This is a minor miracle. Even though they constitute only one percent of the federal docket, and probably less of the state court docket after the Class Action Fairness Act, class actions are a perennial object of attack. They are what political scientists call a “condensation symbol” – a rallying or focal point for our collective anxieties about morality, politics, and the economy. Perhaps for this reason, or perhaps reflecting the general poverty of discourse on difficult policy issues, the debate over class actions has largely generated more heat than light. Either class actions are “blackmailing” corporations into settling meritless cases or they are the only mechanism for the little guy to assert his rights. Coffee presents a balanced account of both the costs and benefits of collective litigation, rightly focusing on the main issue of lawyer incentives to bring and maintain suits. He recognizes that class-action attorneys both realize the public goals of deterrence and benefit from litigation: “No simple epithet – private attorney general or bounty hunter – adequately captures the plaintiffs’ attorneys’ role in high stakes litigation.” He writes, “In truth, the plaintiffs’ attorney does not simply supplement public enforcement but extends and drives the law’s development, sometimes pushing it in directions public enforcers would not have gone.”

The book begins with a history of entrepreneurial lawyering. The insight here is that fee structures drive the structure of the legal profession—had we regulated attorney’s fees, for example, we might have a very different legal system in the United States. As it was, early on the states rejected English limitations on fees and accepted contingency fees and other innovations that encouraged lawyers to find clients and allowed clients who might not be able to afford representation otherwise to hire lawyers. That was the birth of entrepreneurial litigation and it occurred not in 1966 with the promulgation of Federal Rule of Civil Procedure 23, but in the 1850s with the adoption of contingency fees. You might say it is an American tradition. As Coffee puts it, refining his original agency thesis, “the plaintiff’s attorney in large class actions [is] less an agent than a risk-taking entrepreneur, with the class members serving as largely passive partners.”

Especially fascinating is Coffee’s history of the derivative suit. Here he tells stories that I have not seen told elsewhere, such as that of Clarence Venner, a non-lawyer who was a key player in orchestrating campaigns against public corporations as a plaintiff in the early twentieth century, and Abraham Pomerantz, a lawyer who revolutionized plaintiff’s side corporate litigation after the Great Depression. This historical narrative provides a new view of the class action, not as an inflection point in the history of American law between the New Deal regime founded on administrative expertise to a mixed regime that increasingly relied on private enforcement, but instead part of a longer history of individual activism in the courts dating back to Jacksonian populism.

Coffee addresses four types of class actions: derivative suits, securities suits, merger-and-acquisition class actions, and mass-tort class actions. When I first read the book, I thought giving mass-tort class actions a chapter was a mistake, because they were defunct. But reports of the death of the mass-tort settlement class action have been greatly exaggerated, as the NFL Concussion and Deepwater Horizon cases demonstrate. His analysis of each of these areas of the law focuses on incentives – those of the defendant, plaintiff, and, importantly, judges. These include the defendant’s side desire for global peace, the plaintiff’s attorney’s incentives created by the structure of fee awards, and judges’ incentives to avoid protracted litigation or a flood of cases. Coffee describes a dynamic of one step forward and a half step back – a cycle in which attorneys succeed, overreach, and face a counter-reaction.

After reviewing the problems in class actions, Coffee sets the stage for considering reforms. Overall, the problems he focuses on can be put into three categories: (1) structural problems, such as overlapping multiple jurisdictions permitting duplicative litigation; (2) incentive problems, such as the size of the lawyer’s fee in class actions, which can lead to overzealous prosecution of class actions, and the creation of limits such as the “loser pays” rule adopted by some corporations in their bylaws, which can lead to under-prosecution; and (3) accountability problems, including the fact that private attorneys general are not democratically accountable as public attorneys general are. These observations tie with common themes in discussions of litigation and politics in the U.S. more generally: the tension between the establishment and the people, between centralization and decentralized decision-making, and between regulation and deregulation. In the final chapter, Coffee proposes greater public/private partnerships in the prosecution of civil cases – not giving public agencies veto power, but perhaps adding some greater regulation of private lawyers than merely the existence of a substantive legal regime provides.

It is not surprising that Coffee describes class actions the way that he does, as an entrepreneurial enterprise with a long American tradition, given that he is a corporate law scholar in his other life. His description is convincing, novel, and important to current policy debates that present entrepreneurial litigation as an anomaly in our history. He focuses on sectors that are important not only financially but also in American political life. As Lizbeth Cohen demonstrated convincingly in The Consumer’s Republic: The Politics of Mass Consumption in Postwar America (2003), after the Second World War the country took a turn from understanding citizenship as a political act to understanding it as an economic one: the best thing we can do for our country is buy more.

Bringing the insights of corporate law to class action litigation is Coffee’s strength, but also a weakness, because it ignores how the class action, and the controversy surrounding it, extends beyond corporate litigation. Derrick A. Bell, Jr. originated the analysis of agency costs and of the lawyer having his own agenda (the core of the idea of the “entrepreneur”) in his 1976 article Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation. Thurgood Marshall and the NAACP Legal Defense Fund, about whom Bell wrote, might be described as ideological entrepreneurs. And like the rest of the class action regime Coffee describes so well, civil rights class actions are under threat. Here a public/private partnership will cure little, as the whole point of many civil rights actions is to sue the government itself on behalf of those with limited political power: those denied the right to vote, the homeless, foster children, and prisoners, to name but a few groups. (The government ought to have a role in enforcing civil rights, but an independent bar is a necessary watchdog.) It is important to remember that overreaching limitations on civil rights class actions are at least as dangerous to civil society as too harsh limits on consumer and corporate suits.

Coffee, who was for many years a colleague of the civil rights pioneer Jack Greenberg, is no doubt aware of this omission and it does not diminish the importance of this book.  His insights into the costs and benefits of the class action device will continue to be crucial for anyone thinking about the class action: legislators, judges, lawyers, students, and academics.

Cite as: Alexandra D. Lahav, (Almost) Everything You Wanted to Know About Class Actions, JOTWELL (February 21, 2017) (reviewing John C. Coffee, Jr., Entrepreneurial Litigation: Its Rise, Fall, and Future (2015)),