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A Rule Against Fun

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

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

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

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

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

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

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

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

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

Cite as: Richard Re, A Rule Against Fun, JOTWELL (July 22, 2021) (reviewing Nina Varsava, Professional Irresponsibility and Judicial Opinions,  __ Hous. L. Rev. __ (forthcoming, 2021), available at SSRN), https://courtslaw.jotwell.com/a-rule-against-fun/.

Update of Jotwell Mailing Lists

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The Paths to Comprehensive Entity Liability in Constitutional Litigation

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

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

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

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

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

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

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

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

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

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

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

Howard Wasserman, The Paths to Comprehensive Entity Liability in Constitutional Litigation, JOTWELL (June 23, 2021) (reviewing Katherine Mims Crocker, Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity, 73 Fla. L. Rev. ___ (forthcoming, 2021), available at SSRN; Katherine Mims Crocker, Qualified Immunity, Sovereign Immunity, and Systemic Reform, 71 Duke L.J. ___ (forthcoming, 2022), available at SSRN), https://courtslaw.jotwell.com/the-paths-to-comprehensive-entity-liability-in-constitutional-litigation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cite as: Suzette M. Malveaux, Getting Real About Procedure: Changing How We Think, Write and Teach About American Civil Procedure, JOTWELL (June 9, 2021) (reviewing Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, 48 Hastings Const. L.Q. 261 (2021)), https://courtslaw.jotwell.com/getting-real-about-procedure-changing-how-we-think-write-and-teach-about-american-civil-procedure/.

Procedural Evolution in Multidistrict Litigation

Abbe R. Gluck & Elizabeth Chamblee Burch, MDL Revolution, 96 N.Y.U. L. Rev. __ (forthcoming, 2021), available at SSRN.

Modern litigation often operates at a larger scale than rulemakers envisioned when the Federal Rules of Civil Procedure (FRCP) debuted in 1938. The FRCP’s architects recognized that aggregation would pose challenges. But they could not foresee the specific adjustments that would be necessary to process novel claim clusters catalyzed by advances in technology, market organization, and substantive law. Amendments to the FRCP and the promulgation of nonbinding guidelines—including by the Federal Judicial Center, American Law Institute, and Bolch Judicial Institute—have addressed the expanding scale of litigation. But aggregate litigation evolves faster than rules and best practices manuals can adapt. When the litigation frontier moves beyond the shadow of existing guidance, emergent procedures can seem unsettling and unjustified. Yet these procedures shape outcomes in cases implicating significant public policy interests.

This high-stakes gap between procedural design and procedural reality is the focus of Abbe Gluck and Elizabeth Chamblee Burch’s forthcoming article on multidistrict litigation (MDL). Their key insight is that a body of “MDL common law” has developed from the accretion of procedural innovations in large-scale cases. Each new MDL shares features with prior MDLs while adding novel quirks. The shared features enable judges to borrow procedures from prior MDLs, while the quirks generate new procedures that become precedent for future MDLs. Over time, judicial responses to quirks replicate and ossify into common law, such that “the exception becomes the norm.”

Many ordinary MDL procedures are unusual in traditional litigation. Gluck and Burch cite numerous examples of how MDL exceptionalism circumvents traditional constraints on judicial discretion, including transsubstantivity, litigant consent, choice of law rules, and respect for parallel state litigation. Collectively, these exceptions foster what the authors call “the MDL Paradox.” The paradox arises because the statutory framework detailing how MDLs should operate is inconsistent with the common law framework governing how they actually operate. In theory, MDLs provide an alternative to class actions that preserves the “individual” character of each constituent case. But in practice, MDLs replicate the “centralized” approach of class litigation without the attendant safeguards.

Gluck and Burch explore the MDL paradox by analyzing the ongoing Opiates proceeding before Judge Dan Polster in the Northern District of Ohio. This sprawling MDL is attempting to resolve approximately 2,900 suits addressing virtually every facet of the national opioid crisis. A diverse array of plaintiffs seeks distinct remedies from a heterogenous group of defendants under varying theories. The full case caption alone foreshadows a complex story, featuring states, counties, cities, hospitals, doctors, pharmacies, insurers, manufacturers, distributors, and various other parties. Moreover, related claims are pending in state court and thus nominally are beyond Judge Polster’s control. Yet he hopes to arrange a nationwide settlement of federal and state claims. Depending on one’s perspective, Judge Polster’s procedural rulings either creatively avoid obstacles to settlement or imprudently plow through them.

The article spotlights the role of State Attorneys General, who have coalesced to oppose federal centralization in the Opiates MDL. Many MDLs conflict with parallel state proceedings. But this conflict is unusually stark in the Opiates MDL because State AGs are plaintiffs in state court while many local governments are plaintiffs in the MDL. State AGs want to litigate their state court claims without federal interference and without unnecessary friction between state and local governments. These state interests have highlighted federalism issues regarding the federal court’s embrace of interjurisdictional preclusion and lack of deference to state actors. Similar issues lurk in other MDLs, but they have received more scrutiny in the Opiates case due to its political salience and the state AGs’ coordinated advocacy. Judge Polster has not been as receptive to federalism concerns as the AGs would prefer, telling the Massachusetts AG: “I can order you to do anything I want. I can order a State Court Judge to do anything. Whether it will be upheld or not, I don’t know.”

Burch and Gluck conclude their analysis of MDL exceptionalism with innovative and pragmatic suggestions for reform. They recognize that the quirks, scale, and stakes of novel MDLs make procedural innovation inevitable. But they contend that a common law approach to procedure in MDLs should not morph into unfettered judicial discretion. Rather than suggesting specific constraints that might quickly become outdated, they propose “guardrail[s]” that would improve MDL common law by altering how judges craft procedures. Their premise is that sound procedures are more likely to emerge when judges consider competing options and review critical information that refines their understanding of the issues. To nudge judges in this direction, Burch and Gluck suggest expanding appellate review, supplementing centralization with pluralism by remanding some individual cases to the districts in which they were initially filed, and creating opportunities for information-forcing motion practice.

More generally, Gluck and Burch frame their proposals as part of a broader inquiry into setting realistic expectations for what procedure can accomplish “in mega-cases that are dumped into the laps of courts.” In that respect their article is reminiscent of scholarship from past decades analyzing procedural innovations in class actions. Then as now, scholars considered whether the regulatory aspirations of large-scale litigation warranted departing from procedural values animating small-scale litigation. Dueling conceptions of “justice” pitted an emphasis on outcomes against an emphasis on the manner in which those outcomes were achieved.  A similar dynamic is shaping MDLs. Gluck and Burch advance the literature by constructing an insightful account of how MDL common law evolves and a thoughtful assessment of the norms that should shape this evolution.

Cite as: Allan Erbsen, Procedural Evolution in Multidistrict Litigation, JOTWELL (May 20, 2021) (reviewing Abbe R. Gluck & Elizabeth Chamblee Burch, MDL Revolution, 96 N.Y.U. L. Rev. __ (forthcoming, 2021), available at SSRN), https://courtslaw.jotwell.com/procedural-evolution-in-multidistrict-litigation/.

Something Borrowed

Marcus Alexander Gadson, Stolen Plausibility, __ Geo. L. J. __ (forthcoming, 2021).

I often explain to my brilliant first-year law students that, unlike most of their education before law school, originality is not required, nor is it always rewarded. Creativity is certainly key to being a successful lawyer but hewing to convention is critical too. I recall my discomfort as a law clerk when I first copied and pasted a summary judgment rule paragraph from my judge’s prior order into the order I was drafting. It feels odd, but it is something we do in the legal profession. We borrow language, ideas, and arguments all the time.

Which is why Marcus Gadson’s Stolen Plausibility is so striking. Examining post-Twombly and Iqbal decisions, Gadson finds that plaintiffs have adapted by using other parties’ complaints and investigations to fill in the facts required for plausibility. This makes sense. In discrimination cases, for example, a plaintiff who cannot make it to discovery is unlikely to obtain the facts required to plead a plausible claim. Yet if other parties have already established key facts through an investigation, it makes sense for the aggrieved plaintiff to borrow those facts. There seems no good reason to re-invent facts just as there was no good reason for me to rewrite my judge’s standard summary judgment rule paragraph.

But Gadson finds that courts are suspicious of, and sometimes downright hostile to, plaintiffs’ efforts to “borrow” plausibility. Relying on Rule 12(f)’s authorization to strike immaterial language, courts have stricken what they believe are “stolen” facts, and then determined that the remaining facts fail to plead a plausible claim. Under Rule 11, some courts have determined that plaintiffs’ “stolen” facts are not reasonable, leading courts to issue sanctions.

Gadson challenges this response. First, lawyers and judges constantly borrow from each other. Singling out this borrowing as different is suspect. For example, courts allow parties to cite a reputable investigation by a newspaper or think tank in their complaints. Why not allow the same when the investigation is done by a government agency or similarly situated plaintiff? Second, courts justify using Rule 12(f) to strike borrowed facts because they would not be admissible as evidence and are therefore immaterial. But the admissibility of evidence does not matter on summary judgment (as long as the evidence can be distilled into admissible form by trial), so it should not matter on a motion to dismiss or a motion to strike. Finally, in many cases plaintiffs borrow the fruits of a government agency investigation (e.g., the EEOC); those investigations and the resulting facts belong to the public and should be available to individual plaintiffs.

Gadson acknowledges that judges have policy reasons for thwarting the use of “stolen” plausibility. Judicial economy is the primary concern. Judges may worry that if plaintiffs can simply ride other plaintiffs’ coattails, the cost of filing a lawsuit will become too low, the floodgates will open, and courts will be overwhelmed. The corollary to this concern is that it will be too easy for plaintiffs to file suits for the sole purpose of extracting settlements. But tools such as Rules 12(f) and 11 are hardly going to increase judicial economy. To the contrary, they will increase satellite litigation. Gadson acknowledges that “figuring out the optimal balance between discouraging unmeritorious litigation and encouraging meritorious litigation is difficult,” but argues that treating borrowed plausibility as stolen is a step too far. The system should deter “unscrupulous plaintiffs,” but it should also guard against “unscrupulous defendants” who use Rule 12(f) and Rule 11 to delay and defeat meritorious lawsuits.

A related policy concern is the legal profession’s fidelity to the notion that the smartest lawyer in the room deserves the win. This recalls Justice Jackson’s concurrence in Hickman v. Taylor, where he fretted about the less-bright lawyer stealing the wits (a.k.a. work product) of the brighter opposing counsel. It is a gunners-unite principle of law practice. But Gadson refutes that policy concern in this context. First, in many cases, the plausible facts are borrowed from a government investigation. These investigations are—by design—intended to benefit the public at large and not some paid, private interest. Second, the purpose of the justice system is not to assess who worked harder or better, but to assess who is right on the law. If the facts—no matter the source—are applied to the law and demonstrate the plaintiff is entitled to relief, justice is served.

Finally, Gadson concedes that some defendants may be less likely to settle cases if they understand that those facts can be used against them in follow-on litigation, a valid concern even if the settlement is generally not admissible before a jury. The public benefit of avoiding lengthy government litigation is significant. But Gadson wonders if this concern might be overblown. After all, not all courts prevent the use of borrowed plausibility, so defendants already take that risk. To better understand this policy implication, Gadson calls for further study.

Overall, this article is a great read about what is happening on the ground in the wake of Twombly and Iqbal. It is thoughtful and thorough, and it is fun to dig into Rules 12(f) and 11 in this context. The big takeaway for me though is that Gadson eloquently reminds us that judicial economy sits in tension with access to justice. Borrowing from one will often look like stealing to the other. It reminds us that justice is in the eye of the beholder. When those with power see a steal, I tend to see a borrow. But be sure to read the paper and decide for yourself.

Cite as: Brooke D. Coleman, Something Borrowed, JOTWELL (April 23, 2021) (reviewing Marcus Alexander Gadson, Stolen Plausibility, __ Geo. L. J. __ (forthcoming, 2021)), https://courtslaw.jotwell.com/something-borrowed/.

Should the Rules Committees be Remade?

Brooke D. Coleman, #SoWhiteMostlyMale: Federal Procedural Rulemaking Committees, 68 UCLA L. Rev. Disc. 370 (2020).

Federal Rules Committees hold significant power. For example, a recent amendment to the Federal Rules of Civil Procedure that was approved by the Civil Rules Committee narrowed the scope of discovery—which of course, may affect the outcome of a case. In the rulemaking process, each Committee decides whether a proposed rule is considered and votes on whether to adopt it. While other bodies stand in the way of a rule becoming law (proposed amendments can be blocked by the Supreme Court or Congress), almost invariably a rule becomes law once a Committee adopts the rule.

This is why Professor Brooke Coleman’s article is so important. She analyzed all Committee memberships over its approximately 80-year history. She found 94% of the Committee membership has been white. 81% has been men. Perhaps the current Committees are much more representative, but Professor Coleman shows that is not the case. White people continue to constitute an inordinately high percentage of the committee at 92% and the Committees are largely male at 62%.

Professor Coleman shows that White people have been overrepresented on the Committees over time and currently. So, the Committees have been under representative and specifically in relationship to three different demographic comparisons—the US population, the legal profession and federal judiciary.

Men have also been overrepresented on the Committees over time. On the positive side, women are represented on the Committees roughly in proportion to their make-up in the legal profession and in the federal judiciary. Coleman contrasts this good news with the bad news—women of color make up only 4.6% of Committee membership in contrast with 11.9% of federal judges and 14.5% of lawyers.

As might be expected to follow, Committee leadership is also mostly white and male. 97% of chairpersons have been white and 88% men. Put in more stark terms, only 2 of 75 chairs have been people of color. Reporters—academics who take notes and do not vote, but can have influence—have largely been male and white as well. 97% have been white and 80% men.

Professor Coleman discusses why the demographics of the Committees matter. While she acknowledges that arguments may be made that Rulemaking is technical and thus, the demographics of Committee membership do not matter, Professor Coleman counters that rulemaking is not technical or neutral. In other words, whether or not particular rules are implemented can affect the outcomes of cases. The importance of this process is shown by the large number of comments and testimony on the proposed change to the scope of discovery—split largely along the lines of plaintiffs’ lawyers versus companies/defendants’ lawyers. As a result, the characteristics of Committee members, including the members’ ideology, politics, and identity, including sex and race, can affect whether a rule is adopted and thus the outcomes of cases.

In addition to describing why the composition of the Rules Committees matters, Professor Coleman discusses why the Committees have been so white and so male. She points out the history of discrimination against women and people of color in admissions and employment. She also emphasizes that the Chief Justice, who appoints members, uses a narrow nomination process.

Professor Coleman emphasizes three reasons why mostly white, male committees are problematic. First, participants in the legal system can question the rulemaking process. Second, the quality of the rules can be worse. Finally, this unrepresentative composition is contrary to the legal profession’s responsibilities to diversity and ethics. On the first point, she states as an example that criminal rules affect a larger percentage of the Black population yet Black people are inadequately represented on that Committee. For example, the Evidence Committee has never had an African-American member. On the second point, that the quality could be better, Coleman uses the established scholarship on diverse decision-making to show better decision-making is likely with increased representation.

Professor Coleman’s article is a gamechanger. She has pointed out through careful study that there is insufficient diversity on the Committees. This issue causes legitimacy concerns and, more importantly, the possibility that rules may be adopted or not—based on Committee membership—and that may determine who wins or loses, including if someone goes to prison or not.

Bringing a high level of expertise to this article—having served as the clerk to Judge David Levi when he chaired the Standing Committee—Coleman had the unique opportunity to see the process of Rules making in action and, now, can advise about what has happened and what should happen. So what now? It appears Professor Coleman may have had an effect already. Chief Justice Roberts appointed seven more female members of the Committees after her first article came out—going from 29% to 50%. What else is possible? Professor Coleman discusses the possible creation of a nomination committee by the Chief Justice. But this might have the tendency to draw from the same groups of people and create more of the same. Perhaps Professor Coleman should take the lead to help create committees to recommend people for the Committees. Diverse nomination committees will likely lead to diverse Rules Committees.

Cite as: Suja A. Thomas, Should the Rules Committees be Remade?, JOTWELL (April 8, 2021) (reviewing Brooke D. Coleman, #SoWhiteMostlyMale: Federal Procedural Rulemaking Committees, 68 UCLA L. Rev. Disc. 370 (2020)), https://courtslaw.jotwell.com/should-the-rules-committees-be-remade/.

AI & the End of Lawyers… Defeating Class Certification

Peter Salib, Artificially Intelligent Class Actions (December 16, 2020), __ Tex. L. Rev. __ (forthcoming), available on SSRN.

The effect of artificial intelligence (AI) on legal services is one of the most pressing issues facing the profession and legal education. AI has enormous potential to improve efficiencies and reduce costs for clients across many fields, from due diligence to online dispute resolution. This potential renders AI a highly disruptive force in the legal profession. In The End of Lawyers, Richard Susskind asked whether lawyers have any future given the ability of machines to take on many of the tasks we once believed required human lawyers.

In Artificially Intelligent Class Actions, however, Peter Salib argues that in the field of class action litigation at least, AI may lead to more, not less, work for litigators. Salib explores the use of AI to manage large numbers of individual assessments of causation and harm among class members. Rule 23(b)(3) requires that common issues predominate over individual ones for a lawsuit to proceed as a class action. Thus, the need to prove individual causation in product liability cases, or to assess damages for thousands of class members, may be fatal to certification. In other words, some cases are too big to succeed.

Class counsel have attempted to overcome the predominance hurdle by using statistical methods to achieve rough justice for large classes. In effect, class counsel sought to replace an accurate but unattainable disposition of each class member’s claim with an efficient but imprecise one. The US Supreme Court famously rejected this approach, however, in Wal-Mart Stores Inc v Dukes.

Salib proposes that we overcome the problems of statistical sampling by using AI to deliver answers to individual questions that are both accurate and efficient.

He begins his methodical argument by identifying the principles behind the Court’s resistance to statistical proof in Wal-Mart. The plaintiffs proposed a trial plan based on statistical adjudication to avoid the necessity of determining each class member’s claim of unlawful discrimination and entitlement to backpay. A random sample of the class would have their claims adjudicated at the common issues trial, and the average results would be awarded to the rest of the class. The Court rejected certification because “trial by formula” was prohibited under Rule 23 and violated due process.

Salib, however, posits that the central concern in Wal-Mart was not so much about due process as it was about accuracy. After all, due process concerns do not trump other forms of aggregate proof—such as the fraud-on-the-market theory (pursuant to which individual class members are presumed to have relied on an efficient market once it is shown there was general market reliance) or regression analyses to quantify the harm of price-fixing. What drove the Court’s rejection of statistical sampling in Wal-Mart was that the methodology could not produce sufficiently accurate determinations of which class members had been subject to sex-based discrimination in promotion and pay.

Salib argues that AI can address the accuracy values animating Wal-Mart. Machine learning is not statistical sampling. Salib describes how “cutting-edge machine learning algorithms can be trained to provide high-accuracy, plaintiff-by-plaintiff answers to individual questions – like medical causation, individual discrimination, or reliance. They can accurately determine whether a particular class member – as opposed [to] the average one – relied, for example, on a fraudulent misrepresentation.”

The process goes something like this. A set of training data is collected. This is the data, such as decisions made by human adjudicators, that we want the machine to emulate. Algorithms then uncover complex correlations in the data, essentially ‘learning’ from the sample to emulate the decision-makers. The trained algorithm is then tested against another training dataset that was not used in the initial training process. If the algorithm reaches the same results as the human adjudicators did in this set, “the algorithm is likely to make accurate determinations about new cases – those for which the correct answers are not already known.”

Accurately predicting the outcomes of thousands of complex problems through AI is not new. Such advance machine learning is used to evaluate loan applications for creditworthiness and to help separating spouses make parenting arrangements and divide assets. Blue J, a company founded by two Canadian law professors, sells platforms trained on tax, employment, and other case law to predict decisions in these domains with over 90% accuracy. Their products are so accurate that even the Canadian government has begun using them to assist Department of Justice employees.

It is not unreasonable, therefore, to use the same machine learning in class actions where individual determinations threaten to overwhelm the common issues and thereby scuttle certification. For example, a sample set of judgments about causation made by an actual judge or jury at the common issues trial could become the training set for producing the algorithmic determination of claims across the class. In other words, “the algorithm would simulate, with high accuracy, the jury’s determination about whether each individual class member could show medical causation.” The unmanageability of individual proof – the downfall of many a class action under Rule 23(b)(3) – ceases to be an issue. Certification cannot be denied on the basis that individual issues predominate over common ones.

AI’s promise is perhaps most evident in class action settlements. By making class-wide adjudication possible, AI increases the chances of certification, thereby increasing the settlement value of the case. The ability to more accurately evaluate the value of each class member’s claim will also facilitate negotiations and promote settlements. And while Salib does not mention it, machine learning can revolutionize the complicated, costly, and time-consuming claims processes prevalent in many approved class action settlements. An AI-facilitated claims process could make efficient decisions that avoid both underpaying and overpaying members of the class.

Salib predicts and persuasively responds to a number of critiques of his argument. Might the parties aggressively dispute algorithmic design? Yes, but unlike other battles of experts, this one can be tested by applying the competing designs to a hold-out set of training data to see which generates more accurate results. Would algorithmic answers to individual questions be rebuttable, and if so, would wars of attrition be waged vis-à-vis these answers? Unlikely, because the cost of litigating such challenges would be prohibitive compared to the amounts in issue, which would be small given the slim margin of error in machine-generated outcomes. Can we trust machines to make decisions that do not entrench discriminatory bias in the justice system and in society as a whole? Salib is optimistic. Because AI class actions permit the party to whom the algorithm will be applied (i.e., class members, via class attorneys) to have a say in the design of the algorithm and to participate in the creation of the training data in the form of the evidence they adduce at trial, the risk of potential bias is minimized. The argument is familiar in class action literature: class attorneys’ financial incentives to maximize trial awards and settlement amounts should ensure the interests of class members are protected, including in the design and generation of training data.

The prevailing approach to Rule 23’s predominance requirement prevents many important class actions from being certified. The result is that most of these cases do not get litigated, given the high cost of individual litigation, among other barriers. For class actions to realize their true potential in delivering access to justice for mass harms, these cases, often involving important personal injury claims, must be resolvable by collective means. Individual issues are inevitable, but they are only fatal when they must be adjudicated in a time-consuming manner.

Salib shows AI’s promise to convert this expensive, lengthy process of individual assessment into an efficient and accurate one. To date, the best that class actions have had to offer is rough justice, if any at all. AI-facilitated class actions hold out the hope that the justice system can do much better than that.

Cite as: Jasminka Kalajdzic, AI & the End of Lawyers… Defeating Class Certification, JOTWELL (March 24, 2021) (reviewing Peter Salib, Artificially Intelligent Class Actions (December 16, 2020), __ Tex. L. Rev. __ (forthcoming), available on SSRN), https://courtslaw.jotwell.com/ai-the-end-of-lawyers-defeating-class-certification/.

Conflict Scholarship in Partisan Times

Symeon C. Symeonides, Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey, 69 Am. J. Comp. L. 235 (2021).

As the saying goes, we live in partisan times. This makes it easy to succumb to the delicious allure of Manichean partisanship. Legal scholars are not immune from this temptation. Some identify with one side or the other, advocate for one party or the other, espouse one political agenda or the other. But this moment urges us to think about the role of legal academics in a civic discourse. What is our function? How can we contribute to make the important discussions happening around the country more productive, informed, lasting, inclusive, reasonable, and effective? At a time when the legitimacy of many other institutions is seriously questioned, what is our role in shaping how people view lawyers, courts, and the rule of law?

I thought of these themes when reading Symeon Symeonides’s Choice of Law in the American Courts in 2020. It is the 30th time that Symeonides has canvassed developments in conflict of laws doctrine and summarized the year’s developments in the field. The stated purpose is “to inform, rather than to advocate.” To do so, Symeonides casts a wide initial net, reading hundreds of cases that touch upon conflict of laws topics. Year after year. The surveys highlight key developments in the field, as well as broader trends. This is an immense amount of work and provides a significant benefit to many scholars, practitioners, and judges. The survey also represents a different model of legal scholarship than the standard law article fare, providing food for thought about the many roles of legal scholars.

Symeonides’s surveys are well-known and used for numerous purposes. One is providing a fundamentally descriptive account of diverse and dispersed developments in an amorphous field. Descriptive work is sometimes demeaned as intellectually less rigorous than high-flying theory. Perhaps such a view is understandable in fields with ample knowledge of the legal world. But in many other areas, we still lack broad and reliable accounts of what is happening out there. In such environments, surveys can lay invaluable groundwork for subsequent research. This type of survey work relies on reading many, many cases. Perhaps that is also a practical though toilsome technique to negotiate the conflicting risks of the tyranny of the anecdote and the tyranny of big data.

Symeonides’ descriptive work highlights recent developments and departures in conflict methodology while explaining where the law remains stable or is stabilizing. This is helpful in a field where many cases are not explicitly labeled as conflict cases. The survey also explains developments in specific subject matters that have seen important cases. His “Methodological Table” exemplifies the approach—an overview chart of the main choice-of-law approaches followed in the States, the District of Columbia, and Puerto Rico. Introduced with many caveats and asterisks, it is still a surprisingly useful tool for newcomers to the field to orient themselves and to acquire an initial feel for the lay of the land.

To ensure this essay does not become a Mini-Festschrift, let me examine some areas where the survey might have room for improvement. The clearest place is the use of tables and charts to “depict the growth of conflicts cases” over the last thirty years. These sections do not discuss at length the potential for selection effects and data availability effects. As such, they might leave hasty readers with an impression of developments in the law without a corresponding measure of confidence and reliability. Elsewhere, it is clear that the descriptive approach of the survey is aspirational, although I suspect readers vary as to whether they appreciate or disregard occasional editorializing. Commentaries that stray from pure description push the surveys closer to an annual Restatement of the Law, with all attendant tensions. Predictably, readers’ receptiveness will vary.

Despite these caveats and tensions, Symeonides has done a great service to the field with his surveys. This is certainly not the only way to practice legal scholarship and much would be lost if it were. But it is one important, while perhaps neglected and undervalued, model of how to contribute. Symeonides is not the only legal academic engaged in this type of project. But this type of work represents, at least on this continent, a diminishing fraction of what legal academics do and what they are rewarded for doing. Maybe it is time to re-evaluate that.

A final reason to read this contribution is that it is Symeonides’ last survey. Beginning next year, John Coyle, William Dodge, and Aaron Simowitz will assume this role. The survey is in good hands and I look forward to seeing how they will build and develop upon the strong foundations that Symeonides has laid out with such care and dedication.

Cite as: Roger M. Michalski, Conflict Scholarship in Partisan Times, JOTWELL (March 4, 2021) (reviewing Symeon C. Symeonides, Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey, 69 Am. J. Comp. L. 235 (2021)), https://courtslaw.jotwell.com/conflict-scholarship-in-partisan-times/.

What Does a Textualist Look Like?

Thomas O. Main, Jeffrey W. Stempel, & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism (Aug. 17, 2020), available on SSRN.

Who are the most textualists federal judges (at least in the context of “snap removal”)? Thomas Main, Jeffrey Stempel, and David McClure conclude that they are younger, Republican-appointed, white, female judges who attended elite universities. This conclusion is but one of many important insights their empirical work offers to the continuing snap-jurisdiction debate.

For the uninitiated, snap removal is a proper (or improper) exercise of federal removal jurisdiction, depending upon your approach to statutory interpretation. The primary federal removal statute allows a state-court defendant to remove a case to federal court when it otherwise could be brought in diversity jurisdiction. One exception to this scheme, the forum-defendant rule, bars removal “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Because the statute requires the forum defendant to be both joined and served, in many states there is a window of time in which the forum defendant is joined but not yet served, during which the non-forum defendants may attempt removal. That is to say, these non-forum defendants may be able to remove if they do it as quick as a snap.

While snap removal pre-dates the Internet era, the digital age has sharpened this practice. Wealthy defendants have access to state-court-docket tracking software that empowers snap removals at breakneck speed. This practice quashes the power of the forum-defendant rule by swift action, gutting the intent of the Congress to leave suits with in-state defendants in state court. The lower federal courts—especially district courts, given the non-appealability of remand orders—have split on whether to allow such snap removals; the prevailing view, as shown in a different work by these authors, is that they are permissible.

This split offers insight into the statutory-interpretation practices of federal district court judges. While many (likely rightly) argue that the textualism-vs-purposivism dichotomy does not often animate the actual day-to-day work of the lower federal courts, the snap-jurisdiction question presses the issue. The plain text of 28 U.S.C. § 1441 allows for snap removal, yet the unquestioned intent of the Congress in drafting it in 1948 was to prevent plaintiff gamesmanship in removal and to strengthen the home-forum-defendant rule, not weaken it. As Main, Stempel, and McClure put it, “applications of this statute require either a hyper-literal reading that flouts Congressional intent or a purposive reading that evades crystal-clear text; there is no middle ground.” Thus, judges facing a snap-removal question are forced to pick either the textualist or purposivist team, unless courts turn to a creative understanding of textualism and the statutory mischief rule. In important ways, then, the snap-removal question is a proxy for a judge’s commitment to textualism or purposivism.

Main, Stempel, and McClure take on the empirical question of determining how this team-picking shakes out in the lower federal courts. In so doing, they offer necessary detail as to where snap removal occurs most often (California, Pennsylvania, and New Jersey), whether snap removals are increasing or decreasing (they are increasing), whether snap removals are becoming more or less successful (more successful), and whether the type of case matters (tort claims are more likely to be removed successfully than contract claims). These findings alone render this paper worth a serious look.

But for me, the most interesting insights spoke to the identities of the judges most likely to allow snap removal. Which is to say, assuming one accepts the snap-removal question as a proxy for textualist or purposivist interpretive commitments, the authors offer deep insight as to who is on which team. Making no pretense of conveying all the nuance that they offer in this short essay, they find the following:

  • Republican-appointed judges are more likely to be textualists, and Democratic-appointed judges are more likely to be purposivists.
  • Female judges, appointed by either party, are more likely to be textualists than male judges.
  • Younger judges, appointed by either party, are more likely to be textualists than older judges.
  • Elite-university credentialed judges correlate with a commitment to textualism by Republican-appointed judges and with a commitment to purposivism by Democratic-appointed judges.

To be sure, some of these findings, like the party of the appointing president, are not surprising. But I found the gendered nature of a commitment to textualism unexpected and interesting. Similarly, the disordinal interaction for attendance at elite educational institutions was unexpected and worth pondering.

This paper raises much to consider beyond snap-removal data. To take just one question: Does this data show that gender diversity on the bench impacts outcomes in measurable ways in matters having (at least on their face) little to do with gender equity? I do not wish to suggest that the authors attempt to squeeze more and grander conclusions from their empirical findings than they can support. Nevertheless, many scholars, such as Christina Boyd, find such an impact. But these studies have focused on discrimination cases—not dusty issues of jurisdiction. I finished Main, Stempel, and McClure’s paper supporting the call to diversify the bench more strongly than I had before reading.

What an unexpected result from an empirical study of snap removal. And all the more reason you should read this piece straight away.

Cite as: Lumen N. Mulligan, What Does a Textualist Look Like?, JOTWELL (February 18, 2021) (reviewing Thomas O. Main, Jeffrey W. Stempel, & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism (Aug. 17, 2020), available on SSRN), https://courtslaw.jotwell.com/what-does-a-textualist-look-like/.