Francis E. McGovern & William B. Rubenstein, The Negotiating Class: A Cooperative Approach to Class Actions Involving Large Stakeholders, Duke L. Sch. Pub. L. & Legal Theory Series No. 2019-41
(June 13, 2019), available at SSRN
A common criticism of modern academic legal writing is its lack of usefulness in the real world of practice. A common criticism of writing directed toward solving workaday legal problems is its lack of theoretical sophistication. Neither of these criticisms can be levied against the new paper by Francis McGovern, a Special Master in the National Prescription Opiate Litigation multidistrict litigation (MDL), and William Rubenstein, a consulting expert to the MDL court. The paper is dazzlingly conceived, and Judge Dan Polster, who is presiding over the Opiate MDL, has employed the proposal and its reasoning to find a solution to one of today’s most intractable mass torts.
The proposal harnesses Rule 23 to a new purpose: to create a class action designed specifically to negotiate a settlement. Today class actions are certified to litigate claims and, more controversially, to settle them. But this proposal is different. It forms a class around a specific settlement structure, in advance of negotiating the settlement itself; in effect, without knowing whether the defendants will settle or for how much, the class agrees about how the proceeds of a possible settlement will be distributed among class members. Class members have a right to opt out once the structure is known, so those dissatisfied with the proposed distribution plan may exit and the defendants may know in advance of negotiations what the binding effect of the settlement will be. Should a settlement be achieved, class members, who at this point will know what their share of the settlement will be, then vote to approve or reject the settlement, with approval requiring the favorable vote of a supermajority. Class members also retain rights to object to the settlement before the judge decides whether to approve it.
This new form of class action is designed specifically for what they coin “heterogeneous classes.” In a “homogeneous class,” all class members have small claims. No class member has an incentive to opt out and pursue separate litigation because individual litigation would cost more than the claim is worth; as a result, the defendant can be confident that, in negotiating a settlement, there will be no opt outs and no knock-on litigation. In a heterogeneous class, some individual claims are large enough to be worth pursuing. Hence, when a defendant negotiates a settlement with the class, the defendant must hold back some money or negotiate escape clauses to hedge against class members with valuable claims opting out. That dynamic prevents the class from harvesting the “peace premium:” the extra amount that a defendant would be willing to pay to make the entire litigation go away once and for all.
Enter the negotiation class action. Before commencing negotiations with the class, the defendant knows who is in the class and who will be bound if the court approves any ultimate settlement. As the authors argue, it behooves the putative class members and class counsel to establish a settlement structure that will keep class members with large-value claims from exercising their opt-out right. With those large-value claimants remaining in the class, the defendant can obtain global peace, while class counsel can negotiate from a position of strength, capture the peace premium, and divvy up the proceeds of any settlement according to the agreed-on distribution plan.
McGovern and Rubenstein bolster their proposal with insights from the academic class-action literature. Agency costs—the fear that the class’s agents (the representatives and counsel) will sell out the interests of the class to enrich themselves—represent one of the great concerns of class actions. The traditional responses to agency costs include enhancing the agent’s loyalty (by requiring adequate representation), giving the class members voice (by allowing them to intervene and object), and permitting them to exit (by providing an opt-out right). The authors suggest that the negotiation class action employs a novel, fourth approach to reduce agency costs: cooperation. At the same time, the negotiation class action relies on traditional mechanisms: exit (through the initial opt-out right) and voice (through the right to object to the settlement). The authors also offer a new voice mechanism, borrowed from the ALI’s Principles of Aggregate Litigation and from bankruptcy reorganization, of requiring supermajority class approval of the settlement.
The negotiation class action is both a brilliant and a brilliantly flawed proposal. Harnessing the ALI’s supermajority voting requirement to the class-action context, in which voting rights can be employed without doing violence to the principle of litigant autonomy that has otherwise doomed the ALI’s proposal, is a clever way to give class members more voice than the often-ineffective route of filing an objection to a settlement. At the same time, a voting-rights proposal generates more questions than it answers: What is the proper supermajority (66%? 75%? 90%?)? How are votes counted (one person, one vote? weighted based on claim value? weighted based on other considerations, such as a class member’s location or claim strength?)? And is the majority calculated on the basis of the votes cast or on the basis of the class size (an essential question when class members may not be easily found or when small-claim class members may not bother to return their ballots)? The devil of the proposal lies in such details, and the authors only advert to these issues without providing a framework for thinking about them.
Some theoretical underpinnings of the proposal are also debatable. The existence of a peace premium has become an article of faith in some academic circles, despite only a modicum of evidence that it might exist in the real world of aggregate-settlement negotiation. Another academic difficulty is the argument that the concept of cooperation is a fourth strategy to deal with agency costs. It is not; cooperation assumes away agency costs or, at best, is a way to execute a loyalty strategy. A simple tell reveals the weakness of this cooperation strategy: to ensure that agency costs do not infect the initial intra-class negotiation on the proper settlement structure, the authors must rely on strategies of exit (opt-out rights) and voice (objections and supermajority voting).
These concerns are perhaps troubling only to an academic. More practically troubling is the idea of the heterogeneous class. Claims of class members may be heterogeneous along a number of vectors. One vector—on which the authors build their proposal—is differences in the amount of damages that a class member suffers. In this regard, the authors’ idea creates a new label (“heterogeneous claims”) for an old principle—existing case law recognizes that claims of different amounts do not necessarily create internal differences or conflicts sufficient to scuttle class certification.
But another vector is the comparable strength or weakness of claims, in light of differences in applicable substantive law, defenses, or evidence. Class certification of heterogeneous mass torts with these characteristics often founder against one or more of the elements necessary to attain certification (commonality, typicality, adequacy of representation, or predominance). What Richard Nagareda called the pre-existence principle, which seems to underlie the Court’s decisions in Amchem and Wal–Mart, provides that these elements cannot be satisfied by a common negotiation strategy or distribution plan. It becomes difficult to imagine that negotiation classes could be certified except in cases in which the only relevant differences among class members is the amount of damages they suffer. But these are the cases in which a novel negotiation class action is least needed, for certification of a litigation or settlement class action is already possible.
The advantage that the negotiation class may offer over litigation or settlement class actions is a means to keep large-scale claimants in the class. But these claimants will remain in the class, rather than opt out, only if they perceive that the distribution plan negotiated at the outset favors them—that they stand to gain more from the class action than from individual litigation. A negotiation class action might promise more gain for a number of reasons: because they share in a peace premium, because they can spread litigation costs among all class members, or because the settlement structure overcompensates them in relation to small claimants. The first possibility, on which the authors seem to hinge the proposal, is speculative—in no small part because, once the defendants know the distribution plan, they can game their negotiating strategy accordingly. Unable to use the possibility of large-claimant withdrawal as leverage to negotiate a sweeter deal, class counsel might be negotiating with one arm tied behind its back. The second possibility is not unique to negotiation class actions but is shared with litigation or settlement class actions. And the last possibility raises disqualifying conflicts of interest within the class—conflicts of the kind that cratered the settlement class actions in Amchem and Ortiz.
Given its conservatism on class actions, the Supreme Court would almost surely “disapprove th[e] novel project” of negotiation class actions, as it disapproved “trial by statistics” in Wal-Mart. At best, the device might find use in a narrow swath of class actions in which claims are heterogeneous only with respect to the amount of damages that class members suffered. Time will tell, and the early returns are coming soon—the order certifying the Opiate Litigation negotiation class action is on appeal.
It pains me to be skeptical. The need to create useful solutions to resolve the intractable problem of mass torts is palpable. And the authors’ proposal is one of the most promising and innovative developments to come along in a great while.
Cite as: Jay Tidmarsh, The Negotiation Class Action
(November 13, 2019) (reviewing Francis E. McGovern & William B. Rubenstein, The Negotiating Class: A Cooperative Approach to Class Actions Involving Large Stakeholders, Duke L. Sch. Pub. L. & Legal Theory Series No. 2019-41
(June 13, 2019), available at SSRN), https://courtslaw.jotwell.com/the-negotiation-class-action/
Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard, Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions
, NYU Law and Economics Research Paper No. 19-31 (July 15, 2019), available at SSRN
Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard have authored a provocative empirical study of attorney fee awards in securities fraud class actions. Complementing an existing array of studies, they focus on the subset of mega-settlements—those in excess of $100 million dollars—such as the $186.5 million fee award in a securities action against Petroleo Brasileiro SA, in which the plaintiffs’ attorneys claimed to have worked 324,307 hours on the litigation to obtain a $3 billion settlement. Their conclusions are certain to provoke discussion, if not strenuous dissent: namely, that the lure of mega-fees in certain securities cases induces many lead counsel to make work, rather than to work hard.
The authors situate their study in the reforms Congress envisioned in enacting the Private Securities Litigation Reform Act of 1995 (“PSLRA”). This legislation limited fee awards in securities class actions to a “reasonable” percentage of the settlement. The study included every securities class action filed in federal court between 2005 and 2016, a total of 1719 cases, comparing fee requests and awards in the highest-stakes cases with those in other securities class actions. The authors wanted to test whether attorneys were investing more time in high-stakes cases and if the needs of these cases drove the expenditure of additional time or merely rove the desire to justify a higher fee award.
The authors investigated five hypotheses. First, courts rarely reject fee awards, but are more likely to reject fee awards in higher-stakes litigation than in low settlement values. Second, plaintiffs’ attorneys work significantly more hours in the top decile of settlements and receive significantly higher fees. Third, defendants mount more aggressive defenses in higher-stakes litigation, thereby raising the marginal benefit of more work by plaintiffs’ attorneys (the “work hard” hypothesis). Fourth, high-stakes litigation encourages plaintiffs’ attorneys to inflate their hours by doing work that is not necessary (the “make work” hypothesis). Finally, the authors posited that fee award multipliers would not track litigation risk.
Mega-settlements are not the norm: 90% of the actions resulted in a settlement under $50 million and attorneys’ fees under $10 million. The top decile however, differed considerably. The mean top decile settlement was $295.5 million and the mean attorney fee award was $39.5 million. The top decile of mega-settlements had the highest attorney hourly fee, at $938.30.
The authors reach a number of interesting–if not remarkable–conclusions. Plaintiffs’ attorneys put in far more hours in the top decile of settlements and are rewarded with higher fees. Some of the increased hours may have resulted from attorneys doing work that was not necessary, especially in cases with multiple lead counsel. For example, attorneys may engage in unnecessary or duplicative discovery and motion practice across numerous law firms, especially where the defendant’s egregious conduct was patently evident. The authors found evidence that attorneys may work less efficiently in cases with the largest stakes.
With regard to control of attorney fee awards, the judicial system assigns oversight to two actors: the class representative and the court. The PSLRA introduced the requirement that the largest institutional investor represent the class of shareholder claimants. The authors express skepticism–documented in previous studies—that institutional shareholders are the consistent, active watchdogs that Congress envisioned when enacting the PSLRA. But the authors conclude that judges do not serve as a meaningful check on fee awards, more often than not willing to sign off on mega-fee requests. If the plaintiffs’ attorneys accompanied their fee requests with a lodestar check, courts were less likely to reject the fee award. Generally, courts do not use a multiplier to reward plaintiffs’ attorneys for taking on riskier cases., although they do use a multiplier to reward attorneys for litigating more egregious securities violations, even though these cases pose less, not more, risk for them.
This study is worth reading because it carves out high-stakes, high-settlement cases from the universe of all securities settlements. As such, it seeks to identify and explain the agency costs entailed in these significant cases, ultimately with implications for shareholder claimants. Their general conclusions seem certain to provoke protests from the plaintiffs’ bar, as well as the judges who approve the fee requests. It additionally presents the tantalizing question whether mega-fees in other types of mega-settlements—mass tort litigation, for example—experience the same hydraulic forces that induce attorneys to “make work” for higher fees.
Cite as: Linda S. Mullenix, Is Greed Good? Mega-Fees in Securities Fraud Class Action Mega-Settlements
(October 30, 2019) (reviewing Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard, Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions
, NYU Law and Economics Research Paper No. 19-31 (July 15, 2019), available at SSRN), https://courtslaw.jotwell.com/is-greed-good-mega-fees-in-securities-fraud-class-action-mega-settlements/
- Matthew Erie, The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution, __ Va. J. Int’l L. __ (forthcoming 2020), available at SSRN.
- Will Moon, Delaware’s New Competition, __ Nw. U. L. Rev. __ (forthcoming 2020), available at SSRN.
Fascinating developments are afoot in other countries’ courts. Recent articles by Matthew Erie and Will Moon offer terrific insights into a variety of innovative developments in foreign business courts. These articles have implications for those interested in procedural innovation, the development of legal institutions, transnational governance, the international development and influence of the common law, the role of courts in establishing and maintaining the rule of law, and the role of U.S. courts in transnational litigation and as an international judicial leader.
Erie’s article describes the rise of “new legal hubs” (NLHs) across “Inter-Asia,” including in Hong Kong, China, Singapore, Dubai, and Kazakhstan. Erie defines an NLH “as a ‘one-stop shop’ for cross-border commercial-dispute resolution, often located in financial centers, promoted as an official policy by nondemocratic or hybrid [democratic and authoritarian] states.” NLHs have been established over the past few decades—some as recently as earlier this year. These new institutions establish courts in combination with arbitration centers and mediation services, often housed in the same state-of-the-art buildings.
Erie, a legal anthropologist at Oxford, conducted extensive empirical research in five jurisdictions that are home to NLHs. The article contains a wealth of fantastic details and insights about the history, political economy, and functioning of these courts and legal centers. It explores the role of lawyers and legal culture in the creation of legal institutions and depicts procedural innovations. These courts tend to exclude the local law and local language in favor of common law procedural and substantive law and English language. The Dubai International Financial Center’s court, for example, allows its judgments to be converted into arbitral awards, potentially allowing for international enforcement as if they were arbitral awards. Singapore is experimenting with merging arbitration and mediation into a procedure known as “Arb-Med-Arb” that allows, among other things, for consent awards to be accepted as an arbitral award. China offers “smart courts,” integrating artificial intelligence, big data, and machine learning into the adjudication process to minimize over-burdened court dockets and increase access to justice, particularly for online disputes. Courts in NLHs highlight the role of courts in relation to arbitration and other modes of dispute resolution.
In addition to these innovations, Erie’s analysis places NLHs in a global context that is important for understanding the role of courts and law on the international plane. As London and New York take themselves down a notch in global influence, they create an opening for other providers of legal services, such as Singapore and Hong Kong, to step into the market for international commercial dispute resolution. NLHs seem to catalyze globalization, facilitating cross-border commercial transactions. They also “exist in relation to one another . . . as a mainly decentralized network.” They enter non-binding agreements to enforce each other’s judgments and they contribute to our understanding of how judges in different jurisdictions engage in dialog.
But Erie’s central proposition is that despite the appearance that NLHs facilitate globalization, NLHs may conflict with their host states, creating thorny conflicts between the rule of law and nondemocratic governments. In part because NLHs operate in “exceptional zones”—carve-outs from the rules that generally apply to the rest of the country—they develop and apply “bespoke rules and institutions that differ from those of the host state.” “But their very exceptionality . . . can cause an array of conflicts with the host state, from institutional competition and jurisdictional turf wars to political rivalries and ideological dissonance.” Thus, “NLHs demonstrate the potential and fragility of ‘rule of law’ in nondemocratic states that promote globalization against trends in the West.”
This rich account of NLHs in Inter-Asia pairs well with Moon’s article, which focuses on specialized business courts in offshore jurisdictions such as the Cayman Islands, the British Virgin Islands, and Bermuda. Moon describes these foreign nations as “Delaware’s new competition.” Like Delaware, they offer permissive corporate governance rules and specialized business courts, attracting publicly traded American companies to incorporate there. Moon makes an important contribution to the corporate-governance literature, continuing debates about Delaware’s role started by Roberta Romano in the 1980s.
Most interesting to students of courts is Moon’s description of these offshore islands’ new specialized commercial divisions. Like the courts in NLHs, these courts have hired judges with business law expertise, often foreign individuals who are well respected judges in their home states (often the UK). Indeed, some people serve as judges for NLHs and offshore states and as international arbitrators. Also like NLH courts, offshore business courts incorporate a common law tradition and apply common law substantive and procedural law.
The new courts Erie and Moon describe raise difficult normative issues about the public accessibility of the dispute-resolution process. A classic divide between arbitration and litigation is that the former can be kept confidential, while courts and their judgments are open to the public. But the “open justice” principle, recently reaffirmed by the UK Supreme Court, has varying applications in different countries. These new business courts in NLHs and offshore nations are, by default, public. They are state-created courts. They often post decisions on their websites, such as the Dubai International Financial Centre Court’s and Bermuda’s. But NLH courts allow parties to opt into confidential proceedings and judgments and do not (and potentially never will) identify or clarify the standards for determining whether to grant parties’ requests for confidentiality. The offshore courts are more “transparent” in their secrecy—over 55% of Cayman Islands Financial Services Division opinions are sealed, and even that court’s “public” decisions are only available to registered users who have paid an annual fee. Even U.S. courts have been known to grant confidentiality requests when both parties agree, notwithstanding the possible public harm that results from such secrecy, as demonstrated by the recent opioid litigation. It stands to reason that international business courts, who may aim to please the parties before them, would grant such requests.
This secrecy stands in tension with another goal of NLHs and offshore business courts: to develop law. They thus raise fundamental questions about institutional design and legal development. If a state subsidizes dispute resolution in part to foster the development of precedent, how much publicity is enough? These courts may be able to proceed in secret to resolve the particular dispute between the parties, while ignoring the other purposes that courts serve.
NLHs and offshore business courts thus provide a window into the role of courts as creators and preservers of the rule of law domestically and internationally. All purport to promote investment and investment security in their local economies. They may do so by offering well-respected international jurists, a common law tradition, or confidentiality. But can these attributes make up for foreigners’ distrust of the host state? As Erie asks, can they generate positive legal developments in other aspects of domestic governance?
Moon’s paper also examines these foreign court developments from the perspective of U.S. courts, particularly Delaware. U.S. courts—whether Delaware for corporate disputes or federal courts for international human rights disputes—have traditionally thought of themselves as being inviting, even too inviting, to transnational litigation. They have helped develop international law and domestic law with far-reaching extraterritorial effects. But I have argued that these tides are changing because of rising barriers to transnational litigation in U.S. courts and rising competition abroad.
Erie and Moon provide deep dives into two different, important sources of that rising foreign competition. These perspectives should illuminate how we understand courts as international actors in a world with quickly changing global dynamics. These articles are significant contributions in their own right, and also provide a launching pad for important future work for these scholars and others interested in examining courts from a variety of angles.
Cite as: Pamela Bookman, New Courts, New Perspectives
(October 16, 2019) (reviewing
Matthew Erie, The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution
, __ Va. J. Int’l L. __
(forthcoming 2020), available at SSRN.
Will Moon, Delaware’s New Competition
, __ Nw. U. L. Rev. __
(forthcoming 2020), available at SSRN.
Christine P. Bartholomew, E-Notice
, 68 Duke L.J.
As I have mentioned in previous jots, I am a big fan of scholarship that focuses on “on-the-ground-practice with a sensitivity to finding solutions.” Christine Bartholomew’s E-Notice fits that mold. Bartholomew reviews more than 2,700 federal district court decisions on notice in class actions to examine the openness of these courts to electronic methods of notice that take advantage of newer technologies, big data, and social media.
But the article is much more than that. It is one of those rare articles that uses on-the-ground practice to provide insights into one of the thorniest areas of the law—the law of due process.
The empirical project is impressive. Bartholomew searched legal databases to find every decision from 2005 (the year that the Class Action Fairness Act was enacted) to 2017 concerning notice in class actions, focusing on the notice provided to class members of pending class actions and class-action settlements pursuant to Rules 23(c)(2), Rule 23(d), and 23(e). She read each decision to determine whether the court addressed the use of what she calls “e-notice,” which she defines as “emails, text messages, website advertisements, banner ads, keyword ad campaigns, social media posts, and other digital-electronic communication.” Bartholomew analyzes the data to show a general reluctance by district courts to use such methods of notice, categorizing their concerns under three categories—fear of changing traditional notice, fear of new technologies, and fear of imprecision.
Bartholomew does a great job of toggling between the forest and the trees. She presents data and charts to support her claims, but always illustrates her claims with carefully selected examples. For example, she shows “the fear of imprecision” by singling out the Third Circuit’s use of e-notice for antitrust and consumer cases. The choice is apt—the Third Circuit has been one of the leading circuits in adopting an “ascertainability” requirement for class certification, requiring proof that the class members can be specifically ascertained or identified. It stands to reason that a preference for ascertainability goes hand in hand with an aversion to “constructive” methods of notice such as e-notice, which tends to not target specific class members but to use more indirect methods.
The data bears this out. Bartholomew focuses on antitrust and consumer cases because proof of ascertainability tends to be difficult given the lack of records of specific purchases, making e-notice a valuable means of “constructively” informing class members. Use of e-notice declines for antitrust and consumer cases in the Third Circuit after 2013 and 2014, when the court issued important opinions “doubling down” on the ascertainability requirement. There is even a bump up in 2015 when a new decision eased up a bit on that requirement.
Source: P. 254.
Bartholomew brings life to this data by quoting specific cases—for example, where a court was troubled with constructive notice being both “overinclusive and underinclusive,” one of the concerns that undergirds the ascertainability requirement.
But what I really like “lots” about the article is the subtle but persuasive argument it makes about due process. Rather modestly, Bartholomew includes an “intentionally abbreviated” discussion of the statutory and constitutional requirements surrounding class-action notice. The centerpiece of her discussion is Mullane v. Central Hanover Bank and Trust Co., a case I have analyzed in my own writings. Mullane is a masterpiece, containing a coherent theory of due process that focuses less on fixed procedural rights and more on using procedure functionally and flexibly to achieve important social objectives. Bartholomew does not discuss the implications of Mullane to the law of due process writ large, but observes, correctly, that Mullane is the law on the due process of class-action notice. Therefore, Rule 23 and cases interpreting it (particularly Eisen v. Carlisle & Jacqueline) must embody Mullane’s flexible approach. I found this very persuasive, particularly her focus on the terms of Rule 23(c)(2)(B), which expresses a preference for “individual notice” when possible, but only requires the “best notice that is practicable under the circumstances.”
Bartholomew’s main argument for a flexible, Mullane conception of due process arises from the courts’ misgivings about e-notice. The arguments against e-notice given by courts are especially unpersuasive, such as courts’ concerns that too much notice may (supposedly) harm defendants’ reputations. This is due, in part, to the reality that many district court judges do not spend much time critically examining notice plans, understandably so. There is so much to do, and sometimes it is easier to do what is tried and true than to venture into new territory. But the reader is left with a picture of due process as a cage, forever enshrining a preference for mailed notice, which was state-of-the-art when Mullane was decided in 1950. Courts repeat that “[t]he Supreme Court has consistently endorsed notice by first-class mail.” But the “spirit of Mullane” and significant due process precedent contemplate “changing modes of notice over time.” The contrast between what Mullane and e-notice can offer and what we actually have provides a powerful argument that we should rethink how we achieve due process.
It is a small and impressive miracle that Bartholomew achieves such great heights from digging into the earthy practice of class-action notice plans. And it is done with crisp, sparkling writing. Needless to say, I really like this article lots and I highly recommend it!
Jeffrey L. Fisher & Alli Orr Larsen, Virtual Briefing at the Supreme Court
, 105 Cornell L. Rev.
__ (forthcoming 2019), available at SSRN
How do the Justices (and their law clerks) know what they know? More specifically, how do they acquire the information that they rely on when deciding cases? Alli Orr Larsen has done more than anyone in recent years to answer this set of questions. From exploring the role of amicus brief “facts” in Supreme Court opinions to tracing “in house” fact-finding by the Justices themselves, Larsen has shown how information comes to, and is sought by, members of the Court in surprising and perhaps unsettling ways. It is thereforeunsurprising that Larsen, with renowned Supreme Court advocate Jeff Fisher, have new and important information about how facts and arguments reach chambers today.
The starting point of Virtual Briefing is that the digital age has opened new avenues for reaching the Justices. As readers of this site will no doubt acknowledge, many in the legal profession gather crucial information about cases online. Whereas yesterday’s lawyer might have consulted bar journals and op-ed pages to glean legal insights, today’s lawyer has her pick of podcasts, blogs, and twitter feeds devoted to the Court. As one example, according to ABA estimates, there were a mere 100 legal blogs in 2002 and more than 4000 by 2016. These sources provide what the authors dub “virtual briefing”— written or oral online advocacy, outside the normal briefing process, aimed at influencing the outcome of a case at the Supreme Court.
A lesser team would simply say it stands to reason that the Justices and their clerks are paying attention to this new type of briefing. Larsen and Fisher, however, have the online equivalent of receipts. They identified Twitter accounts for 25 law clerks from the 2017–18 and 2018–19 Terms—37% of the clerks from this period. They then found that a substantial number of clerks “followed” accounts focused on Court commentary, including those of SCOTUSblog, Orin Kerr, and the now-defunct First Mondays podcast. Larsen and Fisher even show in a few instances that clerks began following subject-specific accounts around the time certain cases were pending—for example, a labor law blog when the public-unions case, Janus v. AFSCME, was argued.
Having shown that a sizeable number of law clerks tune in to Court commentators, Virtual Briefing then has the difficult task of showing that this made a difference. The authors are careful to acknowledge that they cannot prove so definitively. But they can provide examples where the evidence suggests that a particular blog post or podcast mattered—and they do so persuasively. As one example, Fisher and Larsen trace the infamous “broccoli horrible” argument from NFIB v. Sebelius, as it moved from the Volokh Conspiracy blog to Justice Scalia’s questions at oral argument to all three main opinions on the Commerce Clause. With this and a few other powerful examples, they make a strong case that virtual briefing has mattered, even if one cannot say so with certainty or in quantifiable terms.
The article then turns from the descriptive to the normative: We have reason to believe that virtual briefing matters, now should we be concerned? To answer this question, the authors have another difficult task: trying to draw a line between making arguments with an intent to affect case outcomes in a blog post or podcast and making arguments with an intent to affect case outcomes in a bar journal or the op-ed page of The New York Times. Online commentators can respond to claims made at argument in real time (not days or weeks later) and online fora tend to lack the gatekeepers and fact-checkers associated with famed print publications. Taken together, these points mean that the Justices can “crowdsource” their arguments, often from potentially dubious sources, making virtual briefing different in kind from what has come before.
The ways in which virtual briefing is different can create clear problems. Virtual briefing can circumvent the adversarial process, as commentators can posit new arguments not made by the advocates at argument, and quickly enough to impact decision-making. And it can skirt the spirit of Supreme Court Rules on amicus briefs, which forbid non-amici from providing financial support for filing and require disclosure of non-amici authors. Needless to say, there are no transparency/accountability requirements when uploading a blog post or recording a podcast.
Virtual Briefing concludes by exploring several prescriptive measures. The authors acknowledge, however, that the most obvious solutions come with their own problems. For example, if the Court were to promulgate a rule restricting the posting of material online that appeared to function as a brief—and such a rule could pass constitutional muster—it is not clear to whom the rule would apply, how the rule would be enforced, and how the Court could separate virtual briefing from unobjectionable commentary. The authors ultimately call for enhanced transparency as the most sensible and realistic option. If a Justice encounters a new argument of interest from an online source, the Court could call for supplemental briefing—thereby bringing it “into the fold” of traditional briefing.
In the end, Virtual Briefing makes a valuable contribution by identifying and wrestling with an important and complex problem. As the authors conclude, whatever happens with virtual briefing in the future, we should not proceed without discussion and critical thought. Thanks to Fisher and Larsen, we have it.
Cite as: Marin K. Levy, Confronting Online Advocacy
(September 4, 2019) (reviewing Jeffrey L. Fisher & Alli Orr Larsen, Virtual Briefing at the Supreme Court
, 105 Cornell L. Rev.
__ (forthcoming 2019), available at SSRN), https://courtslaw.jotwell.com/confronting-online-advocacy/
Leah Litman’s Remedial Convergence and Collapse highlights a common two-step phenomenon in the law of constitutional torts. First, the Supreme Court increases the standard for obtaining one remedy (“Remedy A”), relying in part on the availability of another remedy (“Remedy B”). The Court then increases the standard for obtaining Remedy B, relying in part on the availability of Remedy A. The result is that neither remedy is available. Across a range of remedial domains, the Court has imposed similar, high standards for relief, often citing the availability of other remedies that do not exist as a practical matter. Litman calls the similarity of the remedial standards “convergence.” The ultimate unavailability of any remedy? “Collapse.”
To illustrate her point, Litman focuses primarily on three mechanisms of constitutional enforcement that are of particular importance to policing and criminal justice: (1) qualified immunity; (2) federal habeas; and (3) the exclusionary rule. As Litman puts it, “[t]he standards for qualified immunity, habeas corpus, and exclusion of evidence have … converged around a similar, overarching principle that purports to select for unreasonably egregious actions.” (P. 1480.)
For example, for a damages suit to advance against a governmental defendant in an individual capacity, a plaintiff must demonstrate that the official’s actions violated clearly established law that a reasonable official would have known at the time of the violation. This is a high bar; qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Likewise, when a criminal defendant seeks to exclude illegally obtained evidence, “the same standard of objective reasonableness that [applies] in the context of a suppression hearing … defines the qualified immunity accorded an officer.” And Congress requires that if a state court has adjudicated a petitioner’s federal claim, that ruling must remain intact in the face of a habeas petition unless “the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” This standard has been interpreted to mean that state court’s decision is not “objectively unreasonable” “so long as ‘fair-minded jurists could disagree’ on the correctness of the … decision.”
The standards for these various remedies also converge in the level of generality with which courts are required to read prior cases. Across all three contexts, the Court has warned against defining the rules established by prior cases at a high level of generality. In the habeas context, litigants may not rely on new rules established after their conviction became final, absent rarely applicable exceptions; in determining whether a Supreme Court decision creates a new rule or instead applies an old rule, lower courts have been admonished not to define the old rule at a high level of generality. The Court has issued similar warnings in qualified immunity cases.
Convergence is surprising because these doctrines implicate different causes of action and defenses that arise from different sources of law. Section 1983 features broad language, purportedly applying to “[e]very person” whose federal rights have been violated by state officials, saying nothing about qualified immunity. By contrast, in the Antiterrorism and Effective Death Penalty Act, Congress expressly limited the reach of federal habeas to protect federalism and finality. And the exclusionary rule is a judicially-crafted doctrine that arises in criminal prosecutions. Still, as Litman demonstrates, similar, stringent standards govern these disparate contexts.
Despite the similar governing standards, the Court often cites the availability of one remedy as it denies another. When restricting the scope of the exclusionary rule, the Court has pointed to the availability of suits under Section 1983. Restrictive habeas cases rely on the availability of the exclusionary rule, even when exclusion likely would not have been available. Qualified immunity cases have relied on the availability of remedies in criminal cases, even when this is not so. Litman explains that the “convergence in the different remedial standards thus undermines the Court’s reassurances that another remedy will substitute for the remedy the Court has denied, because convergence means that all remedies will effectively be displaced when the court denies one remedy.” (P. 1510.)
This is an important observation. While the rights-remedies gap has long been an important topic in scholarship about constitutional torts, less attention has been paid to the common mechanisms that sustain and widen that gap. A generation ago, Daniel Meltzer suggested that “there is reason to doubt that ‘the central problems for constitutional law . . . are issues of the definition of rights rather than the creation of a machinery of jurisdiction and remedies that can transform rights proclaimed on paper into practical protections.’” As Chief Justice Marshall once admonished, it is odd for a court to engage in the work of “prescribing limits,” but then “declar[e] that those limits may be passed as pleasure.”
Litman’s work helps focus on that machinery of jurisdiction and remedies, and how that machinery is not living up to its transformative promise.
At the end of the Supreme Court’s October 2010 Term, George Washington University law professor (now President and CEO of the National Constitution Center) Jeffrey Rosen wrote a pointed essay for The Atlantic titled Why I Miss Sandra Day O’Connor. Justice O’Connor retired from the Court in January 2006, and Rosen was writing to bemoan the sharp conservative turn that he believed the Court had taken over the five years since Justice Samuel Alito had been confirmed as her successor. Although Rosen had strongly criticized O’Connor’s “pragmatic, split-the-difference jurisprudence while she was on the Court,” the utility of that approach—and the centrism it bespoke—had not only become increasingly clear in hindsight, but its absence in cases such as Citizens United v. FEC had become increasingly noticeable, and, to Rosen, distressing.
Eight years later, at the end of the Court’s first Term with its new, solidified five-Justice conservative majority, Evan Thomas’s breezy, thoughtful, and incisive new biography of Justice O’Connor leaves the same impression. The monograph, which the Justice authorized and in which she and her family encouraged colleagues and clerks to cooperate, is more than just a recounting of the high (and lower) points of Justice O’Connor’s remarkable (and remarkably well-documented) life and career and an engaging study of the first woman appointed to the highest Court in the land. It is also an elegy—for a moment in the political life of the country and in the perception (and internal politics) of the Supreme Court that has clearly passed. Exactly 100 years after William Butler Yeats warned that “the centre cannot hold,” Thomas’s volume is not just an accessible “intimate portrait” of someone who, in his words, “is easy to caricature and harder to understand;” it is a powerful reminder of the increasingly forgotten virtues of moderation, compromise, and civility—not just within the marble halls of One First Street, but on Main Street, as well.
O’Connor, as Thomas exhaustively documents, brought pragmatic sensibilities to the Court when she was appointed by President Reagan in 1981—sensibilities informed by her experience as both a state judge and state senator in Arizona. A judge as much as she was a Supreme Court Justice, that pragmatism often led her to decisions that eschewed broad theories in favor of formulations that appropriately balanced her view of the competing interests, even at the expense of (her own) analytical consistency. For instance, Thomas recounts some of what occurred behind the scenes in Central Virginia Community College v. Katz—what turned out to be the final decision in which Justice O’Connor participated. In that case, a 5-4 majority held that Congress has the power to subject non-consenting states to damages liability in federal court—to abrogate their sovereign immunity—when it enacts bankruptcy legislation under Article I of the Constitution. O’Connor, who had joined a series of earlier 5-4 majorities holding that Congress generally lacked the power to subject non-consenting states to such suits, had changed her mind—and joined Justice John Paul Stevens’ majority opinion without separate comment. As Thomas writes, “her reasoning was simple and, as ever, pragmatic: Bankruptcy laws cannot work unless states are treated like other creditors” Full stop.
Although other examples abound, Thomas also singles out O’Connor’s opinion for a four-Justice plurality in one of the “enemy combatant” cases, Hamdi v. Rumsfeld. Writing for herself, Chief Justice William Rehnquist, and Justices Anthony Kennedy and Stephen Breyer, O’Connor concluded that Congress had authorized the detention of U.S. citizens captured while allegedly fighting for the Taliban in Afghanistan when it authorized the use of military force in the fall of 2001, but that, balancing the detainee’s rights against the government’s interests, the Due Process Clause required more proof for the government’s case against the detainee before indefinite military detention could be authorized.
Dissenting (for once, from Justice O’Connor’s left), Justice Scalia did not pull his punches, decrying O’Connor’s opinion as “an approach that reflects what might be called a Mr. Fix-it Mentality.” As Scalia wrote, O’Connor “seems to view it as [her] mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions.” And yet, O’Connor’s careful, nuanced analysis has withstood the test of time. Not only have no U.S. citizens been subject to military detention on U.S. soil in the 15 years since that ruling, but, as Justice Breyer pointed out last month, the plurality’s nuanced analysis did not pre-judge an array of harder questions that have arisen in cases involving non-citizen detainees. As Thomas writes, “the Hamdi decision cemented O’Connor’s status as the true rudder of the Court”
Yet when O’Connor prematurely stepped down from the bench in 2006 to help care for her ailing husband, control of that rudder passed to Kennedy. Although it was clear by the mid-1990s that the Court’s ideologically divisive cases would typically come down to how Kennedy and O’Connor voted, they often took radically different paths even when reaching the same destination. Thus, although the Court clearly moved to the right in at least some respects when Alito replaced O’Connor, the real movement may have been the oscillations between the landmark cases in which Kennedy sided with the increasingly solid bloc of progressive Justices and those in which he sided with the conservatives. Thus, the period after O’Connor’s departure not only brought Heller, Citizens United, and Shelby County, but also Boumediene, Windsor, and Obergefell. The Justices may not have agreed with Kennedy, but it was in their interests to placate him—or, at the very least, to not alienate him.
On the far side of the October 2018 Term, it is impossible not to notice the absence of more moderate voices on the Court. From the highly unusual public airing in April of a months-long behind-the-scenes dispute in a series of capital cases to the tenor of some of the Justices’ higher-profile rulings in June, it is clear that “the justices have less reason to be conciliatory in either their reasoning or their tone in ideologically divisive cases.” In the process, the Court has come to resemble the country—two deeply entrenched blocs, each having a hard time seeing the arguments and principles that define the other side. And the Court may have reinforced such increasing polarization on multiple levels in its sharply divided ruling that challenges to partisan gerrymandering present non-justiciable political questions—a result from which Justice Elena Kagan and her three progressive colleagues dissented “with deep sadness.” These developments would not have sat well with O’Connor, a Justice for whom “[c]ivility, not snark, was the currency of discourse. Extremism of any kind was to be avoided. Absolutism was for demagogues.” (P. 360.)
In that respect, it is O’Connor, more than Kennedy, who is missing. More alarmingly, it is hard to imagine a scenario in the near or medium term in which it will be in any President’s political interest to try to bridge that gap, rather than appointing the most ideologically extreme candidate capable of gaining Senate confirmation.
O’Connor may have been “First,” but Thomas’s book all but hits readers over the head with the troubling specter that she might also have been the last of her kind. Her colleagues knew it, too. In a note to the Justice shortly after she announced her retirement in August 2005, Justice Scalia wrote that she had been “the forger of the social bond that has kept the Court together.” He wondered, “who will take that role when you are gone?” (P. 378.)
Fourteen years later, that question remains unanswered.
- Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade’s Whiplash, Tex. L. Rev. ___ (forthcoming 2019), available at SSRN.
- Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. ___ (forthcoming 2019), available at SSRN.
The Supreme Court is broken, or so holds an emerging consensus. From the Senate’s refusal to consider Judge Merrick Garland’s 2016 nomination to the Court to the contentious 2018 confirmation of Justice Brett Kavanaugh to a string of 5-4 decisions in politically salient cases, many entailing overruling of long-standing precedent and dividing along the party of the appointing President. All suggest an institution facing deep questions of legitimacy. That apparent consensus yields numerous suggestions to reform, and thus save, the Court.
One idea gaining traction in academic and political circles, across the ideological spectrum, entails eliminating life tenure in favor of some form of 18-year term limits on the Justices. Structures, details, and implementation vary, but the common idea is that a Justice would serve as part of the active nine-member Court for 18 years and a new Justice would be appointed every two years. Supporters believe this will reduce the political intensity surrounding any appointment, eliminate the fortuity of how many appointments a President gets and when, remove the incentive to appoint ever-younger Justices, and perhaps remove the Court as a campaign issue. Two forthcoming papers question this emerging wisdom. Term Limits and Turmoil: Roe v. Wade’s Whiplash empirically exposes the doctrinal costs of term limits; How to Save the Supreme Court proposes alternatives that avoid those doctrinal costs.
In Term Limits and Turmoil, Christopher Sundby and Suzanna Sherry show what might have happened to the constitutional right to abortion recognized in Roe v. Wade if the Court’s membership changed every two years from 1973 (when Roe was decided) until 2019 (when President Trump would make the second appointment of his first term). Assuming a case allowing for reconsideration of Roe every two years (something the authors acknowledge is unlikely), the paper models seven scenarios based on three factors that might influence judges: the loyalty of a Justice to the nominating President’s political values, a Justice’s deference to precedent, and the moderating influence of the Senate confirming the nomination. Computer simulations of judicial votes determine the odds of prevailing precedent being overruled in a run of 10,000 cases. Their basic findings:
- Where loyalty to the political values of the appointing President is the prevailing value, it is likely that controlling precedent would have been overruled three times: Roe would have been overruled in 1985, the case overruling Roe would have been overruled (reinstating constitutional protection for abortion) in 2009, and that case would have been overruled (eliminating constitutional protection for abortion) in 2017. Of course, that last overruling likely would not occur had Hillary Clinton won the 2016 presidential election and made the 2017 appointment. The triple reverse occurred whether the Justices were weakly, strongly, or moderately loyal; the intensity of loyalty increased the odds of overruling.
- Deference to stare decisis, whether strong or weak, brings some doctrinal stability, with one likely overruling of Roe itself around 1989, but no subsequent overruling of that decision. But under a weak-deference model, the likelihood of overruling was within 10 points of 50 % (as Sundby and Sherry put it, within 10 points of a coin flip) at several points during the 45-year period. And, again, the constitutional right likely would have been reinstated by 2019 had Clinton prevailed in 2016.
- High Senate influence, with and without the filibuster, similarly produces one likely overruling of Roe itself, tempering wild doctrinal swings.
Justices and commentators acknowledge that the Court changes with every new member, such that term limits create a new and different Court every two years. Doctrinal instability is an obvious consequence. The instability may not happen in the way this study suggests—it would take longer for cases to wind their way through the lower courts and to the Supreme Court to reconsider precedent. Sundby and Sherry identify an additional unknown—how lower courts and political branches will respond to doctrinal change, knowing that another switch may be on the horizon. Perhaps lower courts will ignore the new overruling precedent; perhaps anti-abortion states will continue to enact and enforce abortion bans, confident that a doctrinal turn is forthcoming. But this fascinating study offers a specific picture of the potential jurisprudential switchbacks.
Daniel Epps and Ganesh Sitaraman similarly recognize doctrinal instability as one of several defects in term limits. They offer two independent alternatives, each working not by shortening or limiting the term for which a Justice serves, but by expanding who is a Justice and what Justices comprise the Court for a given case or term. Three candidates for the Democratic presidential nomination—Beto O’Rourke, Pete Buttigieg, and Bernie Sanders—have expressed support for one or the other idea.
The first proposal is the “Supreme Court Lottery.” Every judge appointed to the court of appeals also would serve as an Associate Justice of the Supreme Court, functionally making the Court a body of 180 members. Cases would be heard by a randomly selected panel of nine Justices sitting for two weeks; judges would prepare for arguments at their home courts, travel to Washington for arguments, then return home to draft opinions. The next set of cases would be heard by a different randomly selected panel of nine. A judgment declaring a federal statute (although not a state statute or federal regulation) constitutionally invalid would require at least a 7-2 vote, and the Court would have mandatory jurisdiction if a lower-court declared a federal statute (although not a state statute or federal regulation) invalid. The nine Justices sitting during a two-week period also select cases for review, although granted cases would be heard by a different randomly selected panel. Epps and Sitaraman identify several benefits to this structure. It decreases ideological partisanship by limiting the power of one judge to pursue an idiosyncratic or ideological agenda in case selection or opinion writing over a long period. Case selection and resolution occur behind a “veil of ignorance,” as one judge does not know what cases she will hear (because they were selected by a different nine-person panel) or who will hear the cases she selects (because they will be heard by a different nine-person panel). And the seven-Justice supermajority requirement guards against radical doctrinal swings and may have a moderating effect on individual judges in drafting opinions, producing more “minimalist” doctrine.
Their second proposal is the “Balanced Bench.” It would establish a Court of ten Justices, five affiliated with each major political party. Those ten would select five additional lower-court judges to serve on the Court for a non-renewable one-year term; they must select the additional five unanimously (or at least by supermajority), at the risk of a loss of a quorum and inability to hear cases that Term. The system is analogous to civil arbitration, in which each side selects one arbitrator favorable to its side and the two arbitrators agree on a third “neutral” for the panel. This echoes previous proposals for making the Court explicitly partisan and politically balanced, allowing the institution to match the public perception. But by adding five neutral Justices agreed upon by both “sides” of the Court, it restores a modicum of non-partisanship, as big cases cannot be decided by simple majorities along party lines.
Epps and Sitaraman address and rebut a host of constitutional objections to both proposals. These include concerns about limiting the presidential appointment power, vesting appointing authority in the Justices themselves, imposing a supermajority voting rule on the Court, and having judges serve on courts other than the ones to which they were appointed. Both proposals dig at structural questions of what constitutes a “court” and what “one supreme Court” requires under Article III—Epps and Sitaraman insist a tribunal qualifies as one Court even if its membership is non-permanent or rotating, pointing for support to the Foreign Intelligence Surveillance (FISA) Court and to the original Circuit Courts under the Judiciary Act of 1789. The most serious objection involves partisan-balance requirements, which limit the President’s appointment discretion. They respond that Presidents of both parties have accepted partisan-balance rules in administrative agencies and a judicial-nominations commission for the District of Columbia courts, so might accede to a similar settlement as to the Supreme Court. Congress also could achieve partisan balance through a Senate rule refusing to confirm any nominee not from the proper party; this solution does not limit the President’s power to nominate anyone he wants, but he knows that only a member of the proper party will be confirmed.
Both articles achieve what the best legal scholarship should—offering practical guidance to those charged with making and implementing legal choices. Facing an uncertain political situation about the present and future of the Supreme Court, the articles expose what is constitutionally possible and practically workable. What those charged with implementing structural choices do with this information is up to them.
Howard M. Wasserman, The Supreme Court is Broke, the Question is How to Fix it: Alternatives to Term Limits
, JOTWELL (June 5th, 2019)(reviewing ; Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade’s Whiplash
, Tex. L. Rev.
___ (forthcoming 2019); Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court
, 129 Yale L.J.
___ (forthcoming 2019)).https://courtslaw.jotwell.com/?p=1691&preview=true.
Although Westlaw contains thousands of cases with a party named “Erie,” there is only one Erie. This abridged citation evokes expansive concepts. Erie is shorthand for normative and descriptive accounts about how the constitutional system operates, the origins of legal rules, and the nature of judicial reasoning. Invocations of Erie can shimmer with veneration, prickle with disdain, or tingle with dread. Either way, references to Erie pervade scholarship and case law.
Despite the myriad meanings that Erie has acquired, there was until now a consensus about the underlying facts. Late on a dark night in Pennsylvania, Harry Tompkins was walking home on a path parallel to railroad tracks. A protrusion from a passing train knocked him beneath the wheels, which severed his right arm. Trains are not supposed to have protrusions. The railroad therefore was liable for negligence if it owed Tompkins a duty of care. Pennsylvania law rejected a duty of care because it deemed Tompkins a trespasser even though he was on a well-worn path. Tompkins’ lawyers wisely did not sue in Pennsylvania. Instead, they sued in a federal court in New York because they anticipated that the court would ignore Pennsylvania law in favor of “general law.” This strategy led to a large but short-lived jury verdict. The Supreme Court held on appeal that the trial court should have applied Pennsylvania law. On remand, Tompkins received no compensation for his life-changing injury.
Critics and defenders of Erie generally agree that Tompkins caught a tough break under a harsh definition of trespassing. Scholars sometimes frame the case as an example of how even progressive judges—such as Erie’s author, Louis Brandeis—may sacrifice an individual plaintiff’s welfare in pursuit of broad legal ideals. But what if Tompkins actually was trespassing far more directly than generations of lawyers have assumed? The Erie decision was never really about the facts, but perhaps the facts were not even real.
Brian Frye’s fascinating new article presents an extensively researched argument suggesting that Tompkins misrepresented the accident’s cause. Rather than walking home, Tompkins may have been attempting to hitch a ride on the passing train. He was unemployed and the train was destined for a city with more opportunities than the small town where he lived. Climbing onto moving trains was common during the Great Depression. Severed limbs—or worse—were a grim consequence for thousands of riders.
Frye acknowledges the impossibility of unearthing the truth eighty-five years after the accident. But his critical analysis of transcripts and exhibits suggests an alternative version of the canonical story. In a nutshell, Frye contends that Tompkins’ account is implausible because: (1) Tompkins saw the train’s headlights while it was approaching him head-on from hundreds of feet away; (2) the train’s maximum possible speed was at least 70% slower than Tompkins alleged (about 8-10 mph, rather than 34-35 mph); (3) the only cars with potential protrusions were in the middle and back of the train, so Tompkins could have been hit only after at least 640 feet of the train had passed him; (4) if Tompkins was moving in the direction that he claimed, he would have left the vicinity of the tracks before encountering the engine, let alone the relevant cars; and (5) there was ample room beside the path for Tompkins to veer away from the train while continuing to walk toward his house.
These findings raise a puzzling question: why did Tompkins not step aside during the long time that a large and noisy train passed within several inches of him? Tompkins testified that he felt no need to avoid the train and that his preferred path was safer than adjacent land further from the tracks. But even the appellate opinion affirming the verdict called Tompkins’ account “patently absurd.” He nonetheless prevailed on appeal because the deferential standard of review did not provide a basis for reversal. The question thus remains: did the accident really happen the way Tompkins alleged, such that he spent a long time walking within inches of a rumbling freight train that he easily could have sidestepped?
Any challenge to Tompkins’ testimony faces a daunting hurdle: the wheels of the train indisputably severed his arm. There are not many ways this accident could have happened other than the way that Tompkins alleged and that the jury apparently accepted. An alternative account therefore bears a heavy burden of persuasion.
Frye assumes this burden while acknowledging that he is relying on speculation and inferences that he cannot definitively prove. He marshals evidence suggesting that Tompkins was trying to hitch a ride and slipped. The jury could have surmised that Tompkins was trying to board the train and nevertheless awarded him compensation because of his serious injury. An especially peculiar fact is that two young men called an ambulance almost immediately after the accident, then vanished before the ambulance arrived. Local residents did not recognize these elusive witnesses. Their presence on an obscure path at 2:30 a.m. concurrently with both Tompkins and the train is a remarkable coincidence. Frye speculates that these men were fellow rail-riders.
One might wonder why this speculation matters. After all, Erie is not cited as a tort case in which the finer points of trespassing are relevant. Erie is instead invoked to support abstract principles that are only nominally connected to Mr. Tompkins’ circumstances. Yet this nominal connection is what makes Frye’s research salient.
Facts are the foundation from which law evolves. An accurate account of a record can inform our understanding of how judges engage in the complex process of turning a dispute into a precedent. Frye’s article is therefore a welcome addition to a growing body of literature upending conventional accounts of historically important cases. Examples of this literature include the “Stories” line of textbook supplements from Foundation Press and Dale Carpenter’s illuminating book Flagrant Conduct: The Story of Lawrence v. Texas.
A revised understanding of Erie would add additional dimensions to an already multifaceted case. For example, Erie is often taught in Civil Procedure courses. Yet presumably few instructors use the case as a vehicle for exploring how juries evaluate evidence in a broader social context. If Frye is correct, then the jury apparently accepted implausible testimony because the railroad’s deep pockets were a substitute for a social safety net that Congress had only just begun to construct.
Moreover, if Tompkins’ lawyers were complicit in crafting misleading testimony, or looked the other way, then Erie would become a vehicle for analyzing professional responsibility and Fed. R. Civ. P. 11. Modern scholarship about Tompkins’ lawyers has focused on their ostensibly clever effort to obtain favorable law by forum shopping. Yet this account emerges in part from statements by the lawyers that were intended for posterity and may have exaggerated their foresight. Some evidence suggests that the lawyers filed in the Southern District of New York for their own convenience and only later discovered that this decision facilitated a favorable choice of law. Even if the lawyers accurately summarized their effort to obtain favorable law, Frye’s analysis implies that they were less candid about efforts to obtain favorable facts.
Although Frye’s analysis is diligent and engaging, the record is sufficiently ambiguous that some readers might not endorse his conclusions. Indeed, I would like to see additional evidence before definitively impugning Tompkins or his lawyers. But even if readers are not convinced, they likely will be intrigued. And thus Erie acquires yet another layer of mystery.
A. Benjamin Spencer, The Territorial Reach of Federal Courts
, __ Fla. L. Rev.
__ (forthcoming 2019), available at SSRN
Federal Rule of Civil Procedure 4(k) generally limits the scope of a federal district court’s personal jurisdiction to that of the state in which it sits. We have this paralleling of state- and federal-court personal jurisdiction despite the fact that the Fourteenth Amendment limits only the states’ exercise of personal jurisdiction while it is the Fifth Amendment that presumptively regulates the federal exercise of that same power. Building upon this distinction, Benjamin Spencer, in his dual role as a preeminent procedural scholar and member of the Judicial Conference Advisory Committee on Civil Rules, argues that we should decouple federal and state court personal jurisdiction doctrine. You should give this short, but thought-provoking, essay a read not only because Spencer is one of the top proceduralists writing today, but because you could well be working with his revised Rule 4(k) soon.
Spencer defends a radical redrafting of Rule 4(k), suggesting as follows: “All process other than a subpoena may be served anywhere within the territorial limits of United States. Nothing in these Rules limits the personal jurisdiction of a district court.” Under his proposal, federal courts would take personal jurisdiction by engaging in an International Shoe analysis that focuses upon contacts with the nation as a whole—not merely contacts with the state in which the federal court sits, as is the case under current practice.
The basic premise of Spencer’s nationwide-contacts approach has great intuitive appeal. The contacts analysis under International Shoe focuses upon the relationship between the defendant and the relevant sovereign that empowers the court with authority. In state court, one rightly focuses on contacts between the forum state and the defendant, as the forum state is the relevant sovereign. By analogy then, in federal court the International Shoe contact analysis should focus upon contacts between the nation as a whole and the defendant, as it is the nation as a whole that acts as the relevant sovereign in such an instance. The Supreme Court flirted with the notion that nationwide contacts are relevant in a Fifth Amendment International Shoe analysis in the past, most prominently in Justice Kennedy’s concurring opinion in J. McIntyre Machinery v. Nicastro and leaving the question open in other cases. But it has failed to reach a holding on this issue.
Spencer lays out several policy goals that his proposal would achieve. His revised Rule 4(k) eliminates the current state of affairs in which different federal district courts possess differing scopes of personal jurisdictional authority merely because they sit in different states. Eliminating this non-uniformity enhances efficiency, consistency, and predictability in civil litigation. His revised Rule 4(k) ensures that a federal forum exists in every state for the adjudication of civil suits that have federal subject matter jurisdiction. His revised Rule 4(k) avoids Rule 12(b)(2) dismissals of prima facie valid claims, which otherwise have subject matter jurisdiction and proper venue in federal court, where the forum state takes a different approach to personal jurisdiction. Finally, this nationwide personal jurisdiction approach is easier to understand and apply than our current forum-state-linked analysis.
Spencer provides a forceful rebuttal to potential Erie-based concerns with his approach. He acknowledges that his revised Rule 4(k) would create an outcome-determinative difference that could induce forum shopping among state and federal courts. Nevertheless, Spencer notes that the Supreme Court does not treat outcome determination as a talisman and, moreover, Erie has never been applied to jurisdictional analyses.
Finally, Spencer contends that his proposed revisions do not require an Act of Congress. Relying upon his past work, Spencer argues that current Rule 4(k) is ultra vires under the Rules Enabling Act. The REA prohibits the Supreme Court from promulgating rules that speak to subject matter or personal jurisdiction. Current Rule 4(k) must go, in Spencer’s view. The beauty of revised Rule 4(k) is that it does not speak to personal jurisdiction at all; rather, his revision takes the Rules “out of the business of delimiting the jurisdictional reach of the federal courts.” In Spencer’s view, with the current jurisdiction-delimiting version of Rule 4(k) struck, the federal district courts would have self-enacting personal jurisdiction flowing from the Fifth Amendment because he concludes that “federal courts do not require statutory authorization to exercise territorial jurisdiction over litigants.”
It is at this last step—Spencer’s posited self-enacting personal jurisdiction authority for federal courts flowing from the FifthAmendment—that procedural scholars should stay tuned. If we were discussing the Fourteenth Amendment’s regulation of the state’s ability to take personal jurisdiction, most would agree that personal “jurisdiction is not self-executing” and that federal due process does not compel states to open their courts. The crux of Spencer’s argument is that personal jurisdiction in federal court should not be analyzed under the Fourteenth Amendment analysis, but the Fifth Amendment. Hence, he has room to make his contention.
This is not to say that we have a consensus that the Fifth Amendment self-enacts personal jurisdiction authority for the federal courts. Far from it. We face a dearth of case law on this Fifth Amendment point. And at least one scholar, in another great new article, takes the opposite position from Spencer on this point.
I, for one, look forward to Spencer’s continued work on this very question of self-enacting personal jurisdiction authority for federal courts. It is bound to be a fascinating dialogue.