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Charting the Interactions of Legal Tech and Civil Procedure

David Freeman Engstrom & Jonah B. Gelbach, Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. __ (forthcoming, 2020), available at SSRN.

Myriad examples—from the rise of chief technology officers in law firms to the over $1.6 trillion invested in legal tech start-ups in 2018 to the use of AI-assisted drafting tools by Walmart’s legal department—demonstrate how technology is inexorably changing the American legal profession and courts, despite their small “c” conservative nature. When Chief Justice John Roberts was asked whether “smart machines, driven with artificial intelligences, will assist with courtroom fact finding or, more controversially even, judicial decision making,” he replied, “It’s a day that’s here….” And the legal community’s integration of more mundane—if no less important—technological tools such as videoconferencing into its existing practices has been dramatically hastened by the COVID-19 pandemic. A prominent example of this trend was when the Supreme Court of the United States held its first telephonic hearing in May.

While legal scholars and the popular press frequently comment on these developments, even the most expansive futurist takes about robot judging focus on how lawyers and the judiciary are (or will be) using new technology to do their traditional work. And courts mostly wrestle with how to adapt existing doctrine to specific applications of new tools. Against this context, David Freeman Engstrom and Jonah Gelbach’s Legal Tech, Civil Procedure, and the Future of Adversarialism marks a significant theoretical push forward, identifying and exploring the overarching question of how legal tech and the civil justice system’s procedural rules mutually shape each other.

In sketching their answers to this question, Engstrom and Gelbach provide two key insights about simultaneous interactions that will guide future research and reform efforts in the near-to-medium term. First, they explain how civil procedure acts on legal technology by shaping the incentives for innovation through the rules governing its use in litigation. Second, they show how legal technology acts on civil procedure doctrine by altering two foundational concerns—the reduction of high and asymmetric litigation costs and the widening of information asymmetries.

Engstrom and Gelbach begin by surveying existing legal technology, presenting a robust account of different tasks, along with the end user, litigation stage, necessary legal or technical expertise, data inputs, and product examples for each task. They also assess the likely technical trajectory of legal technology and the movement from tools that handle routinized tasks like e-discovery or digital reference retrieval to more sophisticated tools that use natural language processing and other machine learning techniques to make case predictions or draft legal documents. Engstrom and Gelbach then discuss regulatory, cultural, and technical problems that might limit the growth of legal tech. Of these, the technical barriers loom largest—whether difficulties generic to natural-language processing or law-specific difficulties like the dynamism of law and data deficiencies due to confidential settlements.

Notwithstanding a cautious note about how fast and far legal technology will advance in the near-to-medium term, Engstrom and Gelbach identify several important implications of the emerging academic literature on the topic. As to the legal profession, legal tech might result in lawyer de-skilling and de-centering, as non-lawyer professionals are brought in to manage advanced technological tools. They question whether the rule of law will suffer as lawyers are displaced by technologists whose expertise is shaped without the traditional norms of the legal profession. Additionally, they considerhow legal technology tools might impact the law, cautioning against a world in which the “process of enforcing collective value judgments plays out in server farms rather than a messy deliberative and adjudicatory process.”

Engstrom and Gelbach examine the possible distributive effects of legal technology’s spread. They start with the promising notion that such tools might level the playing field between the “haves” and have nots,” letting smaller practices compete against BigLaw and making litigation for lower-value claims more cost-effective. But they warn that these tools might reproduce existing structural inequalities. Among other issues, few advanced tools are ready off-the-shelf, potentially putting them out of reach of smaller players.

Three individual case studies then explore how e-discovery, outcome-prediction, and advanced legal analytics tools change how litigation costs and information asymmetries play out. For each, Engstrom and Gelbach connect the tools to the applicable civil procedure doctrines and suggest how they might change in response. To provide a straightforward example, if legal technology tools reduce the costs associated with discovery of voluminous electronically stored information, a primary rationale for the restrictive Iqbal pleading standard would fall away.

Having laid the necessary groundwork, Engstrom and Gelbach draw out their lessons about the bi-directional interactions of legal technology and civil procedure. In the first instance, judges’ procedural decisions will set the incentives for legal technology tools, creating “a shadow innovation policy.” At the same time, these tools will change factors that inform existing civil procedure doctrine. These interactions and the policy decisions of judges and other rulemakers will “shape the future of American adversarialism” by determining how the power of advances in legal technology is allocated between parties vis-à-vis each other and judges.

This article weaves a rich story of how legal technology and civil procedure inform each other. It moves from concrete descriptions of specific tools and doctrine to analysis that illuminates the frequently unspoken underlying normative conceptions of adversarialism and justice that animate the civil justice system. And, while it is particularly timely because of how COVID-19 has forced the global legal community to rapidly integrate more legal technology tools into its practice, the article’s impact will extend well beyond this moment.

A final subtle beauty of the article is its invitation to legal scholars of all stripes to join the conversation. While Engstrom and Gelbach disclaim that the article exhaustively addresses all of the nuances of the issue, they highlight connections to virtually every major theme in civil procedure, providing a road map for further exploration of how legal technology interacts with access to justice, aggregate litigation, confidentiality, innovation, litigation as democratic deliberation, managerial judging, private procedural ordering, professional responsibility, settlements, and trans-substantivity (just to name a few).

Cite as: Seth Endo, Charting the Interactions of Legal Tech and Civil Procedure, JOTWELL (July 1, 2020) (reviewing David Freeman Engstrom & Jonah B. Gelbach, Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. __ (forthcoming, 2020), available at SSRN), https://courtslaw.jotwell.com/charting-the-interactions-of-legal-tech-and-civil-procedure/.

Mischief and Snap Removal

Samuel L. Bray, The Mischief Rule, 109 Geo. L.J. ___ (forthcoming 2021), available at SSRN.

Civil Procedure may mark 1Ls’ first encounter with statutes and judicial interpretation and elaboration of statutory text. Some of the provisions in the canon are barebones to the point of meaningless without judicial elaboration— “short and plain statement of the claim” or a corporation’s “principal place of business” have no obvious meaning. Other statutes and rules are more substantial and allow for deeper textual parsing. Either way, statutory analysis remains an essential component of the study of courts law.

Samuel Bray’s The Mischief Rule reconsiders one rule of statutory interpretation that “instructs an interpreter to consider the problem to which the statute was addressed, and also the way in which the statute is a remedy for that problem.” The mischief rule asks what evil or danger a statute intended to cure and how it remedies that evil or danger. While the rule dates to Elizabethan times, it is misunderstood by defenders and critics. Bray resituates the rule as a tool for all interpretive methodologies.

The conventional narrative places the mischief rule within four key historical jurisprudential moments. The first is Heydon’s Case, a 1584 decision of the Court of the Exchequer; the second is Blackstone’s Commentaries on the Laws of England; the third is Hart & Sacks The Legal Process; and the fourth is Justice Scalia’s rejection in his book Reading Law and his opinion for the Court in Oncale v. Sundowner Offshore Services. But Bray argues that each moment misunderstands the rule. Heydon’s Case is not a “manifesto” for purposivism, but a guide to not reading statutes in a vacuum. Blackstone did not fully separate mischief from other interpretive considerations. Hart and Sacks conflate the mischief rule with purposivism. And working from that same conflation, Scalia rejects the mischief rule because he rejects purposivism. The result is that courts and scholars “slide” between mischief and purpose, using them interchangeably.

But there is “daylight” between the concepts. Mischief or evil operates prior and external to the enactment of the statute—mischief is the social problem and the deficiencies in existing law that allow the social problem to persist. Bray frames it as a logical progression: “Because of a, the action b, so that c.” The mischief is a, the social problem for which existing law is deficient and to which the statute responds; the legislative action is b, the statutory response to the mischief; the legislature’s purpose or goal going forward is c. Whether one believes the third step should matter (the point on which Scalia departs from Hart and Sacks), the mischief represents a distinct concept and a distinct step.

So conceptualized, the mischief rule performs two textual functions. First, it provides a rational stopping point in defining the scope of a statutory term. Considering mischief could prompt a narrower interpretation or a broader interpretation; either way, it guides the interpreter, focuses her attention, and allows her to express an intuition about the statute. Thus, a slug or squirrel is not an “animal” on the railroad tracks for which a train must stop, where the mischief is valuable farm animals such as cows being killed and derailing trains. Second, it allows courts to adopt modestly broader interpretations to thwart “clever evasions” of the text that perpetuate the mischief. Thus, “cattle” includes sheep, to prevent ranchers from grazing livestock other than cows on Indian land without tribal consent.

Bray’s rehabilitation of the mischief rule offers scholars and judges a solution to a current civil procedure problem—forum defendants and “snap removal.” The forum-defendant rule prohibits removal of diversity actions from state to federal court where one of the defendants is a citizen of the forum state. Diversity jurisdiction alleviates the mischief of local bias (or anti-local prejudice) in state court by offering the non-local party a structurally insulated forum. Congress recognized, however, that this mischief is not implicated where a non-forum plaintiff chooses to sue in the forum defendant’s home turf; removal in such case is unnecessary to further diversity’s purposes.

But the text precludes removal only where the forum defendant has been “properly joined and served.” That language targets a different mischief—cases in which the real target of the lawsuit is a non-forum defendant (who needs the federal forum) and the plaintiff includes a forum defendant against which it does not intend to proceed. A plaintiff can frustrate the non-forum defendant’s right to remove by including a forum defendant with no intention to even serve, keeping him in the case to prevent the non-forum defendant from removing. The “properly joined and served” language allows removal where the plaintiff never serves the forum defendant.

While protecting non-forum defendants from plaintiff gamesmanship, however, the text has enabled a clever evasion—the defendants, including forum defendants, snapping the case into federal court before the forum defendant can be served. Many district courts have allowed this practice despite its obvious inconsistency with the purposes of diversity jurisdiction and its obvious departure from congressional intent to proscribe removal by forum defendants. Other courts reject snap removal, but by express resort to legislative purpose and the absurdity canon to ignore or override plain statutory text. The Third Circuit even allowed removal where the sole defendant was from the forum, because the text was plain and the result not absurd.

Bray’s conception of the mischief rule suggests a way out. Congress included the “properly joined and served” language in response to the mischief of plaintiffs including forum defendants for show. In Bray’s logical progression: Because plaintiffs include unserved forum defendants for show (a), Congress limited the bar on removal to forum defendants properly joined and served (b), so that plaintiffs cannot frustrate non-forum defendants’ right to remove (c). But that mischief is not implicated where the plaintiff obviously intends to proceed against the forum defendant but has not had an opportunity to serve and has time remaining to do so.

Applying the mischief rule, a court might interpret “properly . . . served” to mean served prior to expiration of the time permitted for service by the forum rules; this reading precludes removal before the time for serving the forum defendant has lapsed. By modestly broadening “properly” to account for the entire service period, the statute focuses on the mischief of a plaintiff naming a forum defendant for show with no intent to serve, while preventing the creative evasion. This interpretation broadens the statute to preclude removal when time remains to properly serve the forum defendant, even if service has not yet been effected, while allowing removal once service time lapses and it is no longer legally possible to properly serve the forum defendant.

Arthur Hellman and his co-authors propose allowing plaintiffs to serve forum defendants post-removal and for post-removal service to provide a basis for remand. But they argue that this resolution requires congressional action, because statutory purpose and policy goals are insufficient to overcome plain language. This new mischief rule does not involve a similar overriding of text. Rather, the mischief informs the text and colors the court’s broader interpretation of the word “properly.” Courts focus existing text on the evil Congress had in mind—frustrating non-forum-defendant removal by naming a forum defendant without intention to proceed). The mischief-focused interpretation permits removal when that evil is implicated, while excluding from the text and prohibiting removal in the different case that does not implicate that evil (when the plaintiff has not had a full opportunity to serve the forum defendant).

Bray does not have civil procedure in mind in his article. He focuses on statutes and cases involving discriminatory state taxes on railroads, fish as a tangible object that cannot be destroyed, and the meaning of sex under Title VII. But his paper offers a key to resolving an ongoing civil procedure conundrum.

Cite as: Howard M. Wasserman, Mischief and Snap Removal, JOTWELL (June 3, 2020) (reviewing Samuel L. Bray, The Mischief Rule, 109 Geo. L.J. ___ (forthcoming 2021), available at SSRN), https://courtslaw.jotwell.com/mischief-and-snap-removal/.

Discretion, Division, and the Supreme Court’s Docket

Jonathan R. Nash & Michael G. Collins, The Certificate of Division and the Early Supreme Court, 94 S. Cal. L. Rev. __ (forthcoming 2021), available at SSRN.

The Constitution does not resolve foundational questions about the purpose and mechanics of the Supreme Court’s appellate jurisdiction. Should the nation’s highest court focus on resolving conflicts between lower courts, correcting errors, or opining on especially salient issues? And who should decide which appeals the Supreme Court will hear: the Justices by exercising discretion, Congress by enacting mandatory criteria, or lower courts by certifying issues for review? The Constitution’s flexibility regarding these questions creates leeway for experimentation.

A forthcoming article by Jonathan Nash and Michael Collins explores a fascinating jurisdictional experiment from the Court’s formative years. The experiment addressed tie votes arising from the quirky composition of circuit courts. Modern circuit courts sit in panels of three and primarily hear appeals. But for several decades circuit courts sat in panels of two and exercised both appellate and original jurisdiction. Panels typically consisted of one district judge and one Supreme Court Justice. The prospect of disagreement between the judge and Justice required a tiebreaking procedure.

Between 1802 and 1864, the tiebreaker for questions of law within the circuit court’s original jurisdiction was the “certificate of division.” The panel would certify the divisive legal question to the Supreme Court, which would provide a definitive answer. Certificates of division accounted for roughly 8% of the Supreme Court’s appellate docket during the relevant era. This percentage may seem low, but it was only slightly lower than the percentage of cases arriving from state courts by writ of error. Yet scholars have studied review of state court decisions by writ of error far more extensively than review of federal decisions by certificate of division.

Nash and Collins employ several methods to explore the certificate of division. They are historians excavating a largely forgotten past, empiricists analyzing original data, and creative federal courts scholars considering the modern implications of past practices. Each of these roles generates insightful conclusions and grist for future scholarship.

Two historical findings are especially intriguing. First, the article illuminates an underexplored dimension of the Court’s famous—and perhaps infamous—Swift v. Tyson decision. Swift authorized federal courts exercising diversity jurisdiction to apply their own interpretation of general law, even when that interpretation conflicted with otherwise controlling state court decisions. One of the dubious rationales for this rule was that federal court opinions applying general law would promote national uniformity by persuading state courts to adopt similar positions. The Court’s optimism about national uniformity raises a puzzling question: why did the Court think that it could harmonize general law decisions from multiple circuits given limits on its appellate jurisdiction over diversity cases? Part of the answer is that the certificate of division allowed the Court to adjudicate diversity cases over which it otherwise would have lacked jurisdiction. Swift itself arrived at the Court through a certificate of division. Accordingly, the certificate of division may have helped catalyze the pre-Erie approach to vertical choice of law. Future scholarship could quantify this influence by using the Nash and Collins dataset to analyze the role of general law in certified civil cases.

A second historical finding illustrates how discretion can insinuate itself into procedures that do not seem discretionary. The statute authorizing certification ostensibly created mandatory jurisdiction based on the objective fact of division. However, Justices riding circuit sometimes strategically disagreed with the district judge in order to manufacture Supreme Court jurisdiction. Justices acknowledged this contrived disagreement in opinions and private correspondence. For example, Chief Justice Marshall once lamented in a letter that because he was sitting alone as a trial judge, “I have not the privilege of dividing the court” and thereby elevating a “question of great consequence” to the Supreme Court. A certification procedure that in theory eschewed discretion by the Court thus in practice incentivized discretion by individual Justices. Rather than division producing jurisdiction, a desire for jurisdiction produced division.

Nash and Collins build on their historical observations about contrived division to reach empirical conclusions about how individual Justices exercised their discretion. Careful statistical analysis enables Nash and Collins to estimate whether a given Justice generated more or fewer certifications than one would expect from an average Justice. The data implies that some Justices embraced division, while others avoided it. Many factors could have influenced these voting patterns. But the article suggests that some Justices might have been especially inclined to shape the Supreme Court’s appellate docket through strategic voting in the circuit court. The certificate of division may therefore interest scholars who study strategic voting by Justices in other contexts, such as when Justices shape the Court’s appellate docket through the certiorari process.

The article concludes by discussing how the certificate of division can inform modern scholarship about federal jurisdiction. Nash and Collins propose potentially fruitful inquiries into the utility of interlocutory appeals, the balance between mandatory and discretionary review, and the optimal approach to breaking ties.

A testament to the article’s depth is that scholars can adopt it as a case study while addressing topics beyond those that Nash and Collins discuss. For example, certificates of division were designed to grant appellate jurisdiction over discrete aspects of a circuit court case rather than original jurisdiction over the entire case. To police the distinction between appellate and original jurisdiction, the Court developed the “whole case” doctrine. This doctrine considered whether a certificate formally purporting to trigger an appeal functionally shifted an original action from the circuit court to the Supreme Court. The modern and oft-misunderstood RookerFeldman doctrine requires an analogous effort to disentangle form and function. Under RookerFeldman, a losing party in a state court action cannot appeal the state court’s order to a federal district court under the guise of an original action. The doctrine considers whether a complaint formally purporting to trigger an original action functionally shifts the path of appeal. Thus both the whole case and RookerFeldmandoctrines delineate between appeals and original actions to determine whether one is masquerading as the other. Perhaps the Court’s struggle with this problem in the nineteenth century can inform the similar struggle that persists in the twenty-first century.

Nash and Collins have made a welcome contribution to several literatures. Their analysis of certificates of division is intrinsically interesting and concretely helpful for scholars grappling with vexing aspects of federal jurisdiction.

Cite as: Allan Erbsen, Discretion, Division, and the Supreme Court’s Docket, JOTWELL (May 15, 2020) (reviewing Jonathan R. Nash & Michael G. Collins, The Certificate of Division and the Early Supreme Court, 94 S. Cal. L. Rev. __ (forthcoming 2021), available at SSRN), https://courtslaw.jotwell.com/discretion-division-and-the-supreme-courts-docket/.

The Real World

Diane P. Wood, Sexual Harassment Litigation with a Dose of Reality, 2019 U. Chi. Legal F. 395.

I love being a JOTWELL contributor, but I am going to be real with you. Writing a Jot in the midst of a pandemic is fraught. I sit at my computer, often paralyzed, while questions run through my mind, such as: How do I write about the latest and greatest law review article as if everything around us is normal? How do I conjure the energy to focus on great scholarship when in the back of my mind I am just, well, worried?

I do not have many answers right now. But I do know one thing for sure: This community that we have built—scholars who have a deep interest in justice and how it works within our civil court system—is an amazing one. I have watched with awe as you have taught your classes, written your work, and kept things going with amazing grace. I am grateful for all of you and I am honored to be a part of your world.

So, in this Jot, I am going to do something a little different. One idea behind JOTWELL was to be something of a time saver. Each Jot draws attention to a great piece of legal scholarship. Given the reality of our current time constraints, I want to focus your attention on a new University of Chicago Legal Forum, Law in the Era of #MeToo. The online forum includes several great pieces. One notable inclusion is Judge Diane P. Wood’s Sexual Harassment Litigation with a Dose of Reality.

Judge Wood is a beloved jurist and renowned civil-procedure expert. This makes her real-world take on the state of sexual harassment litigation a great read. Judge Wood reminds us that Title VII of the Civil Rights Act has been on the books for more than fifty-five years. As the #MeToo movement starkly revealed, however, Title VII and similar laws meant to prohibit sex discrimination in the workplace and beyond have not done the job. This is true even when there is Supreme Court precedent that should be working. Cases such as Meritor Savings Bank v. Vinson (recognizing harassment in the absence of a quid pro quo) or Oncale v. Sundowner Offshores Services, Inc. (recognizing sexually harassment by a person of the same sex) have been in place for decades. But Judge Wood shows that in the real world, “even blatant cases of sexual harassment frequently fail” in our federal district and appellate courts.

To unpack why, Judge Wood surveys a set of Seventh Circuit sexual harassment cases. The cases are startling. First, lest anyone think that corporations and individuals are routinely slapped with sexual harassment lawsuits over “innocuous or misunderstood” behavior, these cases prove the opposite. The stories are harrowing. One female employee endured repeated sexual advances by her supervisor, including an episode where he followed her while she was on a walk and grabbed her. Another female worker was told by her supervisor that he could see down her blouse during her interview. That supervisor also repeatedly said things such as, “You know you want me, don’t you?” And still another male supervisor grabbed a female employee’s breasts and buttocks and, on another occasion, simulated a sexual act on her while holding a zucchini between his legs. In all of these cases and most others Judge Wood details, the female employees did not prevail.

Judge Wood explains that while her data are not comprehensive, these cases provide a unique window into how sexual harassment cases are handled in the real world. Sexual harassment cases are under-reported, and even when a court case is filed, it often settles. Thus, the cases in her survey represent the small number that proceed to summary judgment or trial. In many of these cases, the parties appealed on an agreed factual record.  This provides interesting insight. The agreement on the facts reveals what is actually occurring in the workplace. And the trial and appellate courts’ responses, as detailed in their opinions, provide a better sense of why these cases are unsuccessful.

What Judge Wood observes overall is that substantive and procedural blockades, combined with judicial skepticism of sexual harassment claims, render even the most dreadful of sexual-harassment cases dead on arrival. Despite the shocking nature of the harassing behavior, judges determined that the actions were not severe enough to affect a person’s employment experience. In other cases, the employee lost because she did not sufficiently apprise her employer of the abuse. In still other cases, the court could not connect the actions against the employee to her sex. Finally, sometimes employees chose the wrong legal theory—harassment instead of retaliation, for example—that proved fatal to their claims.

After examining why these cases fail, Judge Wood offers potential reforms. First, she calls for better reporting mechanisms. Employees often fail to report for fear they will not be believed or might lose their jobs. While retaliation laws help, they do not do enough; the law and our cultural response to complaints of workplace harassment must improve. Second, Judge Wood argues for reconsidering the structure of sexual harassment law, such as the problematic distinction between supervisory harassment and harassment by co-workers or customers. If a company has a well-written harassment policy, as most do, it is nearly impossible to get relief from the employer when co-workers or customers violate the law. Written policies will not eradicate sexual harassment, yet this fairly easy step will often immunize employers. These substantive rules misunderstand how sexual harassment functions in real life, and Judge Wood calls for their reconsideration.

Judge Wood lives in the real world of these cases. She sees them in the courtroom and she has witnessed how they have played out over the years. Her pragmatic assessment and prescriptions are all the more appealing. As we wrestle with our new reality on so many fronts, it is refreshing to read Judge Wood’s take on an area of the law where we certainly can do better.

Cite as: Brooke D. Coleman, The Real World, JOTWELL (April 20, 2020) (reviewing Diane P. Wood, Sexual Harassment Litigation with a Dose of Reality, 2019 U. Chi. Legal F. 395), https://courtslaw.jotwell.com/the-real-world/.

The Wild, Wild West for Low Wage Workers with Wage and Hour Claims

Llezlie L. Green, Wage Theft in Lawless Courts, 107 Cal. L. Rev. 1303 (2019).

People with low salaries recover less frequently for their claims against their employers than those with larger salaries. The problems include that lawyers lack the incentive to take these cases. They have less to gain monetarily, and the costs can even exceed the recovery. Professor Green tells us that low income individuals with wage and hour claims in small claims courts face these difficulties and more—indeed “wage theft” and it is theft condoned by the courts.

Professor Green opens her insightful article with a story about a case that her clinic tried. An hourly employee worked approximately 12 hours a day and was paid around $5 an hour. When she brought a wage and hour case in small claims court asserting $2500 in lost income, the court rejected the claim, concluding there was a simple contract between the worker and the employer—which had not been breached. The appellate court asked more questions and concluded that the wage and hour laws had been violated—awarding her $2,500.

Her client was fortunate. It takes money to appeal cases, and appellate courts may not always get it right. This typical case in a small claims court illustrates the wild, wild west for low wage workers. They may not recover—not because they do not have a good claim, but rather because the small claims courts do not know the law. This is not a small problem. A whopping 60% of workers may be underpaid.

Professor Green summarizes the wage and hour laws, including the Fair Labor Standards Act and state laws, which employers may violate by not compensating or not properly compensating workers. “Wage theft” significantly affects low wage workers’ bottom line, including the ability to pay for basic needs such as housing. While class action cases can help these workers, where class claims do not exist or are not feasible, these workers are left to bring their claims in small claims court on their own.

The procedure in small claims courts is designed to be simple and efficient. However, this can lead to problems. Pro se litigants often do not know the law, so they may not assert the right claims. Some judges in small claims courts may not even have a law degree, so pro se litigants may not be given adequate legal advice from them. Additionally, even a judge who has a legal background may not understand the wage and hour laws. Similar to the court in her legal clinic’s case, Professor Green argues that many small claims courts improperly interpret the law to be simply a contractual relationship governed by a Lochner-type analysis instead of protected by a set of federal and state laws.

Additional problems for employees with wage and hour claims include that employers are more likely to have witnesses—those who work for them—to support their side of the story. Moreover, courts tend to rely on unreliable stock stories or, in essence, stereotypes for what happened to an employee in any given case.

If a worker manages to win on liability, they may still lose. Workers are supposed to receive liquidated damages in the amount of double the back wages they lost to compensate them for the employer not paying them on time. This can help with losses such as late fees they had to pay when they could not make a payment. Although liquidated and treble damages in addition to attorneys’ fees are available, courts often do not award these damages and fees and grant only backpay. This leaves employers incentivized to underpay their employees. If sued by an employee, they will simply have to pay—with minimal fees for their attorneys—for nonpayment of wages.

To remedy wage theft, Professor Green argues for important changes to small claims courts based on safeguards discussed in the United States Supreme Court case of Turner v. Rogers. These include courts providing: basic information to plaintiffs about employees’ wage and hour rights under the law; a more specific form with wage and hour type questions; discovery; and an opportunity to present evidence that they are employees and not independent contractors. Additionally, courts should make express findings about the case, require employers to provide information about their ability to pay; and finally, require judicial training on the wage and hour laws. Professor Green also emphasizes the importance of a litigant informing the court of the case theory through a careful description of the facts and law.

Professor Green has a convincing argument. Who would want to litigate one of these claims in small claims court. Is it even fair that these claims are relegated to inferior treatment in these courts? Should juries decide these questions? That is a question for another day. In the meantime, reform is clearly necessary to ensure that workers are paid what they should be paid.

Cite as: Suja A. Thomas, The Wild, Wild West for Low Wage Workers with Wage and Hour Claims, JOTWELL (April 9, 2020) (reviewing Llezlie L. Green, Wage Theft in Lawless Courts, 107 Cal. L. Rev. 1303 (2019)), https://courtslaw.jotwell.com/the-wild-wild-west-for-low-wage-workers-with-wage-and-hour-claims/.

Neither State Nor Federal Law

David S. Rubenstein, Supremacy, Inc., 67 UCLA L. Rev. ___  (forthcoming 2020), available at SSRN.

Legal scholars have long noted that the federal government increasingly outsources once-deemed-core governmental services to private contractors.  Similarly, scholars have often noted that the scope of government-contractor immunity under Boyle v. United Technologies Corporation and its progeny has metastasized. David Rubenstein’s recent article pushes us to view with a critical eye how these two doctrines work in concert to preempt swaths of state law, all without congressional action.

Rubenstein begins with an overview of history of government outsourcing.  While outsourcing of government functions is as old as the Republic itself, Rubenstein identifies the post-Watergate era as the inflection point for outsourcing, which exploded under both the Reagan and Clinton administrations. While this process has led to a well-recognized loss of congressional control over federal-government processes, Rubenstein argues that it has led to a “leveling down” of state authority as well by (1) occupying areas of traditional state regulation, (2) undercutting spaces for cooperative federalism actions, and (3) outright federal preemption.

Importantly for Rubenstein’s account, Congress did not authorize this aggressive clearing of state law. Rather, the act of contracting triggers federal contractors’ various supremacy claims. One might quibble as to whether the federal common law of contract is chosen by the contracting parties (as Rubenstein sees it) or acts as a background court-created doctrine that applies regards of the contracting parties choice (which I take to be the received view).  But this peripheral skirmish does not alter Rubenstein’s key insight that this explosive growth of federal contracting diminishes state authority without explicit congressional act. In his view, such supremacy claims for contractors require an act of Congress.

Rubenstein turns next to federal-contractor immunity and its under-studied interaction with federal preemption. He begins with the familiar history of contractor immunity’s growth from older intergovernmental immunity doctrine.  From this vantage, contractor immunity, at least as a starting point, forms a poor doctrinal fit as an outgrowth of intergovernmental immunity doctrine, because contractors lack the other electoral and institutional checks upon their conduct that limit governmental actors. Accepting, however, that the immunity ship has sailed, Rubenstein argues for less-than-full abolition of the doctrine in favor of flipping default rules for contractor immunity defenses. That is, contractor immunity should not apply by default but only by legislative action.

Pragmatically, Rubenstein paints an ugly picture of the current state of affairs.  Because of immunity, those who interact with federal contractors lack state regulatory protections. At the same time, any surviving state-law causes of action for relief are subject to federal-contractor defenses. And, of course, there is no general federal common law creating federal avenues to pursue relief.  Thus, federal contracts are subject to neither state nor federal law—only contract-review procedures. Government contractors benefit from acting as federal-government actors (being shielded from state law on supremacy grounds) and not acting as federal-government actors (being absolved from constitutional rules on non-public-action grounds). Rubenstein labels this state of affairs “Supremacy, Inc.”

Rubenstein’s piece, which reflects many of the hallmarks of his work, calls for us to look past formalistic mantras and examine how law impacts real people.  He engages in a detailed discussion of how Supremacy, Inc. worsens both the student-loan crisis and immigration detention. And, again a hallmark of his work, he avoids dogmatic solutions in favor of a call for Congress to exercise control—either way—and to imbue our privatization moment with greater democratic legitimacy. This nuanced and thoughtful piece is a “must read” for federal courts and constitutional law scholars.

Cite as: Lumen N. Mulligan, Neither State Nor Federal Law, JOTWELL (March 23, 2020) (reviewing David S. Rubenstein, Supremacy, Inc., 67 UCLA L. Rev. ___  (forthcoming 2020), available at SSRN), https://courtslaw.jotwell.com/neither-state-nor-federal-law/.

Discovery and the Limits of Transsubstantivity

Diego A. Zambrano, Discovery as Regulation, 118 Mich. L. Rev. ___ (forthcoming 2020), available at SSRN.

Discovery is an instrument of litigation. It is thus unsurprising that most of the scholarship about discovery is itself instrumental–how to make it better or how to explain why it is not so bad. As Diego Zambrano argues in his forthcoming article, however, focusing on such questions misses the larger opportunity to interrogate the foundational purposes of discovery and to use these principles to shape the rules and practices of discovery. Zambrano’s article is a pathbreaking investigation of discovery as a process and an end in itself, rather than as a means to the “fairness-accuracy-settlement” model in which the “right” discovery rules match a commentator’s particular view about the values and purposes of litigation.

Zambrano uses private enforcement actions as his vehicle for taking a fresh look at the theories and principles behind discovery.  Private enforcement lawsuits are those in which “Congress deliberately employs private litigants as the main method of statutory enforcement.” This allows him to work with  the decades of research and arguments about the private lawsuits as key means of enforcing public law regimes.  Once we accept that lawsuits are a form of regulation, it seems quaint to limit discussions of discovery to the relative burdens and merits that discovery serves within a lawsuit. Rather, discovery is an independent regulatory tool, albeit a tool housed within private civil litigation rather than in a public administrative or regulatory body. Zambrano’s insight ties these arguments to specific regulatory mechanisms that can be replicated in or adapted to discovery—namely, the subpoena power of many administrative agencies. He argues that “[w]hether discovery costs are too high should depend less on a case’s amount in controversy and more on whether the case generates proportional regulatory benefits and fewer costs than a comparable agency investigation.”

What follows is a thorough and elegant examination of the relationship between discovery in private enforcement actions and the subpoena power of administrative agencies in analogous regulatory situations, where civil plaintiffs are “quasi-public investigators” and discovery is the “lynchpin of private enforcement.” By laying out the history and justifications for administrative agencies’ broad subpoena powers alongside the purposes of private enforcement litigation, Zambrano makes a persuasive case for a very permissive scope of discovery in these cases. By rooting his argument in the existing structure of American-style discovery, he makes a convincing case that discovery is not simply a tool of private enforcement litigation, but the backbone of private enforcement litigation.

Zambrano uses this inquiry to provide a unifying theory of discovery that moves the discourse beyond standard debates about instrumental justifications. Throughout the article, he is candid about the limitations of this approach.  Much of the force of his argument derives from the unique characteristics of private enforcement litigation, particularly that Congress has delegated much of the enforcement authority in the relevant statutory regimes to private parties. This, of course, excludes a large chunk of litigation based in state law and common law causes of action. Zambrano acknowledges that mass-tort and other complex litigation has a similar structure to private enforcement litigation in that “discovery in mass torts cases produces similar effects [as private enforcement litigation] so it may be illustrative of regulatory discovery.” But he also argues that mass tort litigation does not share the key quasi-public features that make private enforcement litigation such an ideal candidate for a theory of expansive discovery—private enforcement litigation is an extension of the congressional delegation of enforcement power that underlies the exercise of administrative subpoenas, while mass torts arise from a long common law tradition of state law.  Is it possible to have a unified theory of discovery that is premised so heavily on litigation to privately enforce public statutes and ignores a large swath of other litigation in federal courts? To the extent that the argument for discovery in these types of cases is exceptionally strong, one worries where the scope of discovery might land in a mass-tort MDL or any litigation at all outside of the federal system.

Towards the end of the article, Zambrano alights on the idea of trans-substantivity. He intuits that if his theory is heavily predicated on a type of litigation and causes of action that are uniquely situated in the American legal landscape, then he might have a problem with trans-substantivity–the principle (purportedly essential to the Federal Rules of Civil Procedure) that procedural rules apply uniformly across litigation without regard for the underlying substantive law. He points to Rule 26 and argues that the scope of discovery is non-trans-substantive—governed by a case-specific and discretionary standard that is capacious enough to accommodate different factual scenarios and broad enough to incorporate the underlying purposes of different causes of action, such as private enforcement actions.

While the appeal to the flexibility and broad discretion inherent in American discovery practice is a perfectly satisfactory answer, I think it is a missed opportunity to underscore the depth and importance of his article as a whole.  If we continue to conceive of American-style discovery as a means rather than an end, trans-substantivity forms a serious barrier to a theory whose strongest underpinnings are tied to the peculiarities of private enforcement litigation.  But once we have freed ourselves from framing discovery in almost exclusively instrumental terms, discuss it as its own end, and perhaps engage the vocabulary of remedies, the problem of trans-substantivity fades away.  If discovery is not primarily an instrument or tool of litigation, that tool need not be a one-size-fits-all affair.  It is within this larger reframing of the discovery debate that Zambrano’s article will make a lasting contribution that extends far beyond the private enforcement context.

Cite as: Robin J. Effron, Discovery and the Limits of Transsubstantivity, JOTWELL (March 9, 2020) (reviewing Diego A. Zambrano, Discovery as Regulation, 118 Mich. L. Rev. ___ (forthcoming 2020), available at SSRN), https://courtslaw.jotwell.com/discovery-and-the-limits-of-transsubstantivity/.

A Return to First Principles: Class Actions & Conservatism

Brian T. Fitzpatrick, The Conservative Case for Class Actions (2019).

For decades, most opposition to class actions in the United States has come from the political right. Corporations on the receiving end of class action lawsuits have hired lobbyists and lawyers to restrict the availability of class actions, through legislation such as the Class Actions Fairness Act and by successfully arguing for narrow judicial interpretations of Federal Rule of Civil Procedure 23. If the pendulum has swung toward ‘killing’ the modern class action in the United States, it is conservatives who have pushed it.

For this reason, Brian Fitzpatrick’s The Conservative Case for Class Actions offers a unique contribution to political debates over class actions. A self-described card-carrying member of the Federalist Society and former clerk to Justice Antonin Scalia, Fitzpatrick argues that “class action lawsuits are not only the most effective way to hold corporations accountable; they are also the most conservative way to hold them accountable.” This contention rests on two basic premises: what is “good for conservative principles may be bad for big corporations” and “the private sector is better at doing most everything than the government is.” He persuasively supports the first premise as a matter of principle and history: Republicans acknowledge that some rules are necessary (like laws against fraud or anti-competitive behaviour), and conservative principles have not always aligned perfectly with the interests of big business. He defends the second premise by exploring the options for enforcement and empirically showing that the conservative preference for private enforcement is justified: the private sector is better than the government at detecting misconduct and enforcing the law.

After recounting the ironic history of Rule 23 in chapter 1, which includes an attempt by Democrats to curb class actions in favour of government enforcement, Fitzpatrick explains in chapter 2 that a preference for limited ex ante regulation and greater reliance on ex post regulation by private lawyers is consistent with long-standing conservative political and economic theory. There is little public enforcement in the U.S. compared to “large central bureaucracies that dominate governance in high-tax, activist welfare states,” a fact made more true in the past three years of deregulation by the Trump Administration. If all but the most radical conservatives accept that some rules are necessary (for the protection of the capital markets, for example), then all but the most radical conservatives must accept enforcement of these rules. Pointing to such prominent conservatives as economist, law professor, and former judge Richard Posner, Fitzpatrick states that “for most of our history, conservatives preferred legal enforcement by private lawyers.”

Fitzpatrick then explains why conservatives should prefer private enforcement by private lawyers to public enforcement by government lawyers. He cites six reasons the private bar is preferable to government lawyers, but the most persuasive is that private lawyers have better incentives and better resources to detect misconduct. Quoting civil rights scholar Myriam Gilles, “The massive government expenditures required to detect and investigate misconduct are no match for the millions of ‘eyes on the ground’ that bear witness to … violations.” If conservatives accept that some regulation is good, then better and more efficient enforcement of those regulations in a manner that reduces the size of government and avoids the risks of crony capitalism and agency capture should be embraced by conservatives. In other words, just as conservatism is not to be conflated with big business interests, an aversion to government enforcement should not be conflated with support for impunity.

Fitzpatrick addresses the main arguments against class actions in chapter 4: class-action lawyers select only lucrative cases to pursue; class-action lawyers bring frivolous lawsuits when there has been no wrongdoing; and the private bar is not accountable to the political process as compared to government enforcers. He responds to each criticism with data and arguments based on conservative first principles. For example, the data do not show that the private bar pursues less meritorious cases than the government does. Unlike their government counterparts, class action lawyers are not subject to agency capture. They also represent a decentralized form of regulation. And since when do conservatives have a problem with the profit motive?

If private enforcement is better than government enforcement, then class-action attorneys should be the private enforcers of choice. Private enforcement of small harms can only occur if aggregated in representative litigation. Quoting libertarian legal scholar Richard Epstein, Fitzpatrick posits that “without the class action, the ‘real risk is that serious wrongdoing at the corporate level will go unchecked for want of a champion to respond to a common problem.’” Opposing class actions in order to immunize corporations from such wrongdoing is neither principled nor consistent with conservative values.

Fitzpatrick then tackles the two most frequent conservative arguments against class actions: that they are usually meritless and that lawyers get all of the money. Even if is true that some class actions are without legal merit, defendants have an inexpensive way to combat them: motions to dismiss. More importantly, the majority of class actions do have merit. Entrepreneurial lawyers working on contingency fee have every incentive to file meritorious and strong cases. Empirical studies show that motions to dismiss are successful in less than one-third of cases and that most settlements are for amounts far greater than their nuisance value (the cost of defending the action)—both of which show the underlying merit of the lawsuit. Similarly, studies do not support the view that class members get nothing while class attorneys get everything; while class members are rarely made whole, statistically class actions are still better than government enforcement at compensating victims.

Fitzpatrick spends considerable time in chapter 8 addressing whether class actions deter wrongdoing. The argument that they do not “flies in the face of decades of economic theory that was pioneered by conservative academics.” Fitpatrick’s empirical studies revealed that 25% of all settlements include a provision requiring the defendant to change its behaviour in some way, usually by way of injunctive relief; in other cases, defendants changed offending practices as soon as lawsuits were commenced.

Fitzpatrick concludes with a series of proposed amendments to the class action regime that would make it more palatable to conservatives, most radically to limit class actions to certain types of wrongs or to require that plaintiffs share defendants’ discovery expenses to dissuade defendants from settling to avoid the expense of discovery. And with Republicans in charge of the Senate and the Presidency, he writes that now is the time to negotiate such amendments.

Fitzpatrick’s writing is crisp, accessible, and intended for a lay audience, but with hundreds of dense footnotes that will appeal to lawyers and academics. Published in November 2019, the book’s provocative argument has attracted criticism from the right. The U.S. Chamber of Commerce rejects Fitzpatrick’s argument that class actions promote accountability and the rule of law, labelling the plaintiffs’ bar “the storm troopers of the anti-free-enterprise agenda” and arguing that because the majority of class-action settlements do not compensate class members but enrich lawyers, class actions actually undermine democratic accountability. The argument is unconvincing, given that the data cited in the book dispels the Chamber’s assumption that most settlements pay nothing to class members. Moreover, in light of its central mission to lobby for the eradication of regulations that protect consumers and the environment (among other constituents), the Chamber’s complete rejection of the role for private enforcement suggests a preference for corporate unaccountability.

Martin Redish makes a similar argument against class actions, but in the name of liberalism. He writes that “certain types of modern class actions [are] fundamentally inconsistent with process-based liberalism” because a settlement that includes large cy pres awards “transforms a compensatory statute magically into a form of civil fine or qui tam action” through undemocratic means. Redish has argued that cy pres settlements are unconstitutional. Fitzpatrick anticipated this charge, arguing, with empirical support, that most courts now scrutinize cy pres settlements more closely and that while “[t]hese settlements may have been a problem at some point, …they are not today.” In any event, opposition to a minority of settlements that include cy pres relief does not justify wholesale opposition to class actions.

That Fitzpatrick is under fire by different sides of the political spectrum is the best advertisement for his book. On a topic so easily dominated by partisanship, he makes a principled argument for the modern class action. The Conservative Case for Class Actions is a persuasive defense of this form of litigation, at a time in its history when it needs it.

Cite as: Jasminka Kalajdzic, A Return to First Principles: Class Actions & Conservatism, JOTWELL (February 24, 2020) (reviewing Brian T. Fitzpatrick, The Conservative Case for Class Actions (2019)), https://courtslaw.jotwell.com/a-return-to-first-principles-class-actions-conservatism/.

The Forest, the Trees, and Lone Pine Orders

Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2 (2019).

1986 wasn’t just a big year for Mets fans. It was a big year for civil procedure. The Supreme Court decided the summary judgment trilogy—Anderson, Celotex, and Matsushita—two of which would go on to become the most frequently cited Supreme Court cases in history. Earlier that year—but with considerably less fanfare at the time—Monmouth County Superior Court Judge William Wichmann issued an unusual order in a case about alleged contamination from the Lone Pine Landfill in Freehold Township, New Jersey. He set a deadline by which the plaintiffs had to provide documentation supporting their exposure to substances from the landfill and the injuries that were caused as a result. Later that year—just three weeks after Jesse Orosco struck out Marty Barrett for the final out of Game 7—Judge Wichmann found the plaintiffs’ submissions inadequate and dismissed their claims with prejudice.

Judge Wichmann’s order would come to bear the name of that case (and that landfill) and it spawned a revolution in civil procedure—particularly in the mass-tort context. As Nora Freeman Engstrom’s excellent article explains at the outset, Lone Pine orders have featured in a “Who’s Who” of mass-tort cases—including “Love Canal, asbestos, Vioxx, Fosamax, Rezulin, Celebrex, Zimmer NexGen knee implants, Baycol, Avandia, Fresenius, and the Deepwater Horizon oil spill.” Her must-read piece is a comprehensive dive into the use of Lone Pine orders, their advantages and disadvantages from a practical and theoretical perspective, and the lessons that can be drawn for civil litigation more broadly.

This topic prompts an important definitional question: what exactly is a Lone Pine order? Although Engstrom describes considerable variation on the details of particular orders in particular cases, she defines it as an order requiring a plaintiff to make an early evidentiary showing regarding three issues: (1) her exposure to the defendant’s product or contaminant; (2) the impairment she has suffered as a result; and (3) specific causation, typically supported by qualified experts. As in the eponymous New Jersey litigation, failure to provide sufficient information on these issues can result in dismissal of a plaintiff’s claim with prejudice.

From a policy standpoint, Lone Pine orders are viewed as a solution to the problem of nonmeritorious mass-tort claims. Of course, the weight of the evidence indicates that groundless tort claims are the exception rather than the rule. But Engstrom identifies five conditions that characterize tort claims where nonmeritorious suits are more likely to be a concern. These conditions are: “(1) injuries are hard to discern; (2) specific causation is contestable; (3) defendants have a diminished incentive or capacity to scrutinize claims prior to payment; (4) filing rates are unusually high; and, perhaps most importantly, (5) restraints typically imposed by the contingency fee are relaxed or altogether inoperative.” With respect to the last condition, Engstrom notes how the sheer mass of mass torts affects the economics of litigation: “once the mass tort is in full swing, costs are essentially fixed, while rewards depend largely on claim volume—meaning, bluntly, the more the merrier.”

Engstrom recognizes that Lone Pine orders, when properly used, can “promote judicial economy, preserve defendant and judicial resources, safeguard the integrity of trial processes, and allay concerns that MDLs (or their state-court counterparts) are a repository of—or breeding ground for—dubious filings.” They can also facilitate the processing of claims, as well as their ultimate resolution and settlement. That said, Engstrom identifies several problems with Lone Pine orders. Insofar as they require costly expert reports at an early stage in the litigation, they impose significant burdens on plaintiffs. They are hard to square with the structure of the Federal Rules of Civil Procedure, particularly the summary judgment process set forth in Rule 56, the obligations imposed on plaintiffs by Rule 11, and Rule 37’s regime for imposing sanctions for noncompliance with discovery orders. Engstrom also highlights a trend in MDL cases of issuing “twilight” Lone Pine orders to plaintiffs who decline to opt into a settlement program negotiated during the MDL proceedings; such orders impose added pressure on plaintiffs to accept the settlement rather than assert their right to litigate their individual claims in the courts where they initially filed suit.

In light of these concerns, Engstrom argues that Lone Pine orders should be “exceptional,” employed only when two conditions are met. First, “other procedures explicitly sanctioned by rule or statute are practically unavailable or patently insufficient.” Second, it must be the case that “substantial evidence casts doubt upon some or all plaintiffs’ entitlement to relief and/or some or all plaintiffs have displayed a marked and unjustifiable lack of diligence in pursuing the action.” This would give Lone Pine orders a more limited role than some courts currently allow, but Engstrom proposes that plaintiff fact sheets can be used to achieve some of the goals of Lone Pine orders in a less costly fashion. The distinction between Lone Pine orders and plaintiff fact sheets is an important one, although as Elizabeth Burch argues in her response essay (which is worth a read in its own right), practice regarding such fact sheets varies widely—in some instances, courts have insisted on fact sheets that are no less burdensome than a typical Lone Pine order.

Engstrom concludes with several lessons we can draw from Lone Pine, situating the use of Lone Pine orders in the broader evolution of civil litigation over the past several decades. One lesson involves managerial judging, a trend Judith Resnik identified in the 1980s,which has been further amplified by the MDL process—particularly the tendency of the Judicial Panel on Multidistrict Litigation to choose managerially active judges to supervise MDL pretrial proceedings. Another is the general anti-access shift in civil procedure, as chronicled by Steve Burbank and Sean Farhang’s work on the retrenchment of private enforcement of substantive law in federal court and Arthur Miller’s critique of the myriad “procedural stop signs” that have metastasized throughout the federal pretrial process. Lone Pine orders also exemplify the increasing customization of procedure, which not only flouts the Federal Rules’ ostensibly transsubstantive nature but can evade institutional constraints that might otherwise police inappropriate procedural “ad hocery.”

When it comes to the past, present, and future of Lone Pine orders, it is crucial to see both the forest and the trees. Engstrom’s terrific article does precisely that. She lays a sophisticated foundation for better appreciating the advantages and disadvantages of such orders and provides a coherent framework for evaluating their use going forward.

Cite as: Adam N. Steinman, The Forest, the Trees, and Lone Pine Orders, JOTWELL (February 7, 2020) (reviewing Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2 (2019)), https://courtslaw.jotwell.com/the-forest-the-trees-and-lone-pine-orders/.

Attention Supplicants

Ryan Copus, Statistical Precedent: Allocating Judicial Attention , __ Vand. L. Rev. __ (forthcoming 2020), available at SSRN.

Courts of Appeals in the United States are busy and, as numerous commentators and judges have pointed out, are unable to give many cases the attention they deserve. Attention supply and demand are currently grossly misaligned. Worse, there is little realistic hope of reducing the number of appeals or increasing the number of appellate judges. Appellate courts have responded by enlisting attention aids (e.g., more staff attorneys, more clerks), reducing attention commitments (e.g., fewer oral arguments, short and unpublished opinions), and reallocating attention from some types of cases to others.

These moves create numerous practical and normative problems. Perhaps most serious is that appellate judges systematically shortchange some types of cases (e.g., pro se, immigration, social security, and prisoner appeals) and lavish attention on other cases that have superficial markers of importance. Courts of appeals allocate their precious attention according to a cobbled-together set of proxies, heuristics, norms, historic practices, and shortcuts. None of this is to fault appellate judges; many seem unhappy with the current state of affairs and try their best with the limited resources that they have. But it is difficult to avoid the impression that the current hodgepodge of solutions is neither transparent nor efficient nor evenhanded.

Ryan Copus’ article is not the first to consider how courts can improve their ad hoc attention-triage systems, but he creatively pushes methodological boundaries to attack old problems from a fresh angle. He combines machine learning with an impressive dataset to answer how frequently appellate courts have reversed a particular type of case. Cases with low or high probabilities of reversal represent “easy” cases that typically merit little attention and are good candidates for a first look by staff attorneys. Cases in the middle represent “hard” cases that present opportunities to develop law and enhance predictability in the future. The article also uses traditional indicators of error to boost our confidence in the ability of the machine-learning-generated model to usefully predict error.

This is an impressive contribution in its own right. But Copus does not situate his article as the final word on appellate attention-triage systems. Instead, he posits that it is a “proof of concept” that merits further development. The courts have better and more detailed data that they could feed into machine-learning algorithms. Similarly, machine learning is not one thing but an opulent smorgasbord of approaches. Copus argues that, like corporations and other government agencies, courts could sponsor annual competitions to find models that maximize pre-specified, publicly communicated, up-to-date criteria.

As such, Copus’ article also helps us think about responsible and palatable uses of the riveting advances in machine learning. Copus’ proposal does not recommend or automate outcomes on appeal. Instead, it supports deliberate and informed attention-allocation decisions. Such a proposal is subtly mindful of the tendency of many experts to overestimate their ability to allocate efficiently and the capacity of machine learning to assist human decisions. Rather than handing our fate to the robot overlords or the corporations that built them, the article advises that we leverage machine learning to boost, not replace, human decision-making.

Despite these strengths, there are moments when I wish Copus was more diplomatic (e.g., when the current draft calls out a host of judges by name for frequent use of unpublished decisions in cases that the model identified as having high error estimates). Treading circumspectly might increase the likelihood of institutional buy-in. Relatedly, even though Copus presents only a “proof of concept,” a more detailed account of the data collection and model creation would enhance interested readers’ ability to identify features to keep and reject in designing future attention-triage systems.

On the whole, the article is an elegant celebration of innovation and iteration, carefully building on prior doctrinal work and preparing rich ground for further inquiry. There are, of course, many other areas of law where attention is in short supply and might currently be systematically misallocated. Entire classes of high-volume litigation and agency adjudications could benefit from transparent, principled, experience-driven attention-allocation systems.

Beyond exploring this approach in different settings, Copus’s article points to foundational questions about the role of attention in the law that have long-standing analogues in philosophy and psychology and that deserve further inquiry. How does attention and distraction shape who we are as lawyers and judges? Does and should law/lawyers/law schools prioritize some modes of attention over others? Is attention gendered and culturally specific? Is full attention a precondition for just adjudication? If we are what we pay attention to, then do judges change as their attention shifts? Does just adjudication require moments of mutual understanding of the fact that attention is shared by multiple people and trained on the same object? Those are questions well worthy of our attention.

Cite as: Roger M. Michalski, Attention Supplicants, JOTWELL (January 21, 2020) (reviewing Ryan Copus, Statistical Precedent: Allocating Judicial Attention , __ Vand. L. Rev. __ (forthcoming 2020), available at SSRN), https://courtslaw.jotwell.com/attention-supplicants/.