Courts, practitioners, and scholars have recently focused on discovery costs in civil litigation. This produced recent amendments to the Federal Rules of Civil Procedure emphasizing that discovery requests be “proportional” rather than excessive. But this focus has ignored the fact that the information sought in discovery about the defendant’s liability is often consciously created by the defendant’s compliance measures before any litigation actually occurs (a point I am examining in depth in a current project). More importantly, potential defendants may create such information with an eye to ensuring that uncovering it in litigation or through similar regulatory intervention is costly or impossible. Accordingly, reducing the “costs” of discovery by limiting discovery to “proportional” requests may have the perverse consequence of making it even less likely that such information is ever uncovered, giving defendants greater incentive not to comply with the law in the first place.
This perverse consequence of reducing discovery costs is made vivid in Roy Shapira and Luigi Zingales’s new article examining DuPont’s treatment of C8, a chemical used in the production of Teflon-containing products. As Shapira and Zingales detail, DuPont learned in 1984 (and even earlier) that C8 posed potentially serious health risks because of the chemical’s bio-accumulative and bio-resistant properties. Among other things, C8 may cause birth defects in an infant’s eyes and nostrils, a fact discovered when DuPont examined the children of its employees. Nevertheless, DuPont continued to use C8, and even doubled its C8 emissions, for nearly three decades after learning about these risks, stopping its use in 2013.
Although this history is valuable, Zingales and Shapira go further and examine an interesting, and generally neglected, question. Did DuPont continue to use C8 because of ignorance and bad governance? Or, more problematically, because they considered it the rational thing to do? Here Shapira and Zingales use contemporaneous internal company documents, reasonable assumptions, and economic tools to conclude that DuPont chose to use C8 even though it was not socially optimal. The internal documents show that DuPont was well aware of its liability risk in using C8. But Shapira and Zingales surmise that the use of C8 remained rational for DuPont so long as the chance of being detected (and thus forced to pay heavy sanctions) was only a nineteen percent chance or lower. Continuing use of C8 unabated “was a case of ‘rational wrongdoing’: a decision that maximizes shareholder value ex ante, even though it is socially inefficient.”
What is interesting about this exercise from a civil-procedure perspective is the source of the internal documents Shapira and Zingales use in their analysis. The documents were produced during the discovery in the multiple suits filed against DuPont starting in the late 1990s. Shapira and Zingales argue that the “discovery process … provided a unique glimpse into the inner workings of a large company like DuPont.” Indeed, they later note that “[t]he main investigation of the health effects of C8 was made possible by the … initial litigation and the documents discovered during subsequent litigations.”
Compare this acknowledgement with the authors’ diagnosis of the failure of enforcement—“the main way corporations succeed in reducing their expected liability is by suppressing and distorting information.” The civil litigation and liability regime “as currently designed … creates bad incentives ex ante. Companies face incentives to suppress potentially damaging information, so as to keep the plaintiff lawyers away.” The general counsel of DuPont, for example, led workshops “on what not to document and share in regards to C8.” And those incentives to suppress information allowed DuPont to consciously emit C8 despite the social harm such emissions would cause, expecting this use would not be discovered. It is a small miracle that those internal documents were found in the first place. The current trend toward making discovery less costly for defendants only exacerbates those incentives to make such information very “costly” to discover in the first place.
Shapira and Zingales’s work is a sobering reminder that any discussion of discovery reform must acknowledge the regulatory role tort liability, through civil litigation, plays. They confirm that companies such as DuPont pay a great deal of attention ex ante to how potential litigation will affect their bottom line. Indeed, companies like DuPont may engage in “rational wrongdoing” based on predictions of how well litigation and other regulatory measures will be able to police their actions. Thus, while discovery is costly, courts and rulemakers cannot lose sight of its enormous regulatory benefits. Indeed, without discovery, this story could not have been told.
Brooke D. Coleman, A Legal Fempire?: Women in Complex Civil Litigation
, 93 Ind. L.J.
(forthcoming), available at SSRN
If ever there was a right time to discuss gender inequity in the legal profession, it is now. With a daily deluge of examples of how women are objectified, degraded, and undervalued in the workplace, Brooke Coleman’s A Legal Fempire?: Women in Complex Civil Litigation comes at a perfect time. It is a welcome and timely exposé of how a slice of the legal profession—the Multi-District Litigation (MDL) world—illustrates the acute and ongoing systemic problem of gender inequity and the modest progress that has been made over time to address it. Coleman does an excellent job of shining a light on this serious contemporary issue without sugarcoating or whitewashing it, while simultaneously crediting the Gender Bias Task Force movement for its historical contributions and making proposals for going forward.
Coleman’s article was an easy pick as a work I loved reading and one I highly recommend to law teachers, law students, and the legal profession in general. Her work reaches into many corners—complex litigation, feminism, employment law, ethics, social science—and is accessible in its content and tenor. She navigates the topic of gender inequity in the legal profession with both sensitivity and unapologetic dissatisfaction with the current state of affairs. In sum, Coleman’s article should be required reading for 1Ls today, as a part of the prescription for attacking gender inequity in the legal profession.
Coleman’s article mines data collected from Gender Bias Task Forces, which were created in the 1980s by the National Organization for Women and the National Association of Women Judges to examine gender discrimination in the legal profession. Coleman takes a sample from more than forty available studies, choosing a slice that cuts across state and federal courts, representing seven states and two federal circuits. My only critique is that I wish the article could have covered even more.
To Coleman’s credit, she recognizes upfront that her work focuses on an elite, privileged few and that the data and analysis upon which she relies is in many ways under-inclusive. She concedes that much of this limitation was by design—with task-force leaders choosing essentialism over recognizing intersectionality—and that her work, while valuable, perpetuates this flaw to some degree. With this insightful confession behind her, the article goes on to make an invaluable contribution.
Although the Gender Bias Task Force studies varied in approach and scope, they all spotlighted two attributes in the legal profession: (1) acute female underrepresentation and (2) “rampant sexism.”
Despite an inspiring history of female “firsts,” the Gender Bias Task Forces revealed a significant female gap up to the mid-1990s, when their work primarily ended. Twenty years later, the statistics paint a similarly bleak picture. While women comprise almost half of law students today, women are woefully underrepresented in the most powerful and elite positions of the legal profession. Women make up only a quarter of federal and state judges, and 21% of law firm partners. Those who do make partner earn only 44% of what their male counterparts earn. Female lawyers are also tracked into lower-income practice areas. Although women make up 40% of law professorships, they hold only 28% of deanships. These numbers are even direr for women of color. Although they comprise 20% of the population, they make up only 8% of state and federal judges, less than 3% of all law firm partners, 7% of tenure/tenure-track professorships, and 8% of deanships.
Of course, the numbers tell only one part of the story. Not only is the legal profession dominated by men, it is rife with boorish and sexist conduct toward its female members. The Gender Bias Task Force studies “generally found … women lawyers often suffered gross discrimination, and female parties and staff were regularly mistreated on the basis of gender.” The extent to which this remains the case is unclear. However, if the current #MeToo movement is any indicator of the American workplace climate overall, there is much about which to be concerned. The fact that this movement has spread like wildfire across industries as varied as entertainment, politics, media, and professional athletics suggests that gender discrimination is systemic and endemic.
Coleman does a deft job of recognizing the positive contributions of the Gender Bias Task Force movement, identifying its shortcomings, and building from this base with proposals of her own. She tips her hat to the pioneers of the movement, highlighting their positive recommendations for change, including gender bias and civility educational programs for judges, law students, and lawyers; changes to the rules of professional conduct; recruitment efforts for female lawyers and judges; judicial election and appointment process reforms and training; and standardization of judicial qualifications. Coleman hits the nail on the head, however, in asking where we are twenty years after the efforts of the Task Forces largely subsided. With over half of all law students being female since 1996, what does the legal profession have to show for this equalization?
Coleman cleverly selects the world of complex civil litigation, specifically MDL, to illustrate the ubiquity of gender inequity in the legal profession. This exemplar is a microcosm of the larger endemic problem of discrimination against female lawyers and judges.
Not surprisingly, the history of multi-district litigation is one of gender exclusion with respect to (1) the judges appointed by the Chief Justice to serve on the Judicial Panel on Multidistrict Litigation, (2) the judges chosen by the panel as transferee judges in MDL cases, and (3) the lawyers selected as plaintiffs’ lead counsel in MDL cases. In 1968, the first MDL panel was comprised of seven white men. The first white woman was appointed to the panel in 2000. Slowly, more were added: one in 2004, one in 2010, and then four more by 2014. Over the almost fifty years of the MDL panel’s existence, there have been fifty judges appointed to the panel, only seven of them women. There has never been a woman of color appointed to the panel, although they represent 27% of the federal bench. Today, for the first time in its history, there is a majority of women on the panel, including a female chair. While there has been progress, Coleman rightly concludes that “[t]he lack of racial diversity and the paucity of women on the [MDL panel] is quite discouraging.”
The same is true for the selection of transferee judges. While 33% of active federal district court judges are women, they represent only 25% of transferee judges. Not surprisingly, the lawyers selected by those transferee judges as lead counsel are primarily white men. Women comprised only 16% of the MDL leadership appointments from 2011 to 2015, although that figure has increased to over 27%. Even those women selected for MDL leadership are stratified in lower-level leadership positions.
One of the insidious problems of diversifying multi-district litigation is the pipeline problem. To be considered for the MDL panel and as transferee judges, women must be federal judges. Yet presidents—particularly Republican administrations—have been stingy in appointing women to the bench. Almost 20% of President George H. W. Bush’s judicial appointees were women, while 22% of George W. Bush’s were women. President Bill Clinton was the first president to exceed 20% women with his nominees, at 28%. President Barack Obama appointed more women to the bench during his first five years in office than Presidents Reagan, H.W. Bush, and W. Bush combined; 42% of his nominees in eight years were women. Trump’s legacy has yet to be determined, but Coleman suggests that if his Cabinet appointments are any hint, the number of women nominees will wane.
Not only does Coleman do an excellent job of illustrating the gender disparity in complex civil litigation, she also makes a compelling argument that the disparity should be eradicated. While this would seem to be an obvious normative conclusion, Coleman supports it with four distinct undeniable pillars. First, gender diversity is important because the best decision-making occurs when a group is heterogeneous. This is backed by scientific studies that demonstrate the harms of conformity and lack of dissent. Second, participation by women not only changes outcomes, but improves them. A nice example of this is the corporate literature that reveals a 66% increase in profits for Fortune 500 companies having the highest percentage of females on their boards of directors. Third, gender diversity in complex litigation legitimizes the legal system. Stakeholders’ meaningful participation in the legal system signals fairness in the process, which in turn engenders confidence in the outcomes. Fourth, because the legal system itself has created and perpetuated subordination of women, it has a duty to correct it. This is only fair, especially for an institution that purports to promote justice as its job.
Finally, Coleman builds on the work of her Gender Bias Task Force predecessors with her own prescriptive measures for the future. Coleman gives an appropriate shout-out to the pioneers, contextualizing their contributions and appreciating their progress. After this brush clearing, she sets forth her own proposals.
First and foremost, Coleman contends that it is time to rip off the Band-Aid and “confront base sexism and change social norms.” She sums up what has been dripping out of the news on the daily: “As the events of the past year and the results of the national election demonstrate, there is a foundational sexism and misogyny that underlies our culture.” Coleman’s examples are perfect, showcasing how appearance—including African-American women’s hair, Muslim women’s hijabs, and all women’s bodies—has been used to discredit women in the legal profession. There are no easy answers, but there are many answers: “[a]wareness, education, movements, and overt action by allies,” to name a few.
Second, Coleman emphasizes the importance of retaining and elevating women in the complex-litigation world. To rectify the pipeline problem, law firms must do a better job of hiring, mentoring, and promoting women through the ranks. White women and women of color are leaving law firms in droves because of structural and cultural barriers built into the law firm environment that replicate white male control and success.
Third, Coleman suggests that MDL practices be restructured to address the gender inequity in plaintiffs’ leadership committees and in selection of MDL transferee judges. Coleman recommends that MDL judges move away from using slates of repeat players and instead affirmatively consider diversity in their leadership appointments. She also recommends that MDL panels dole out the opportunity of serving as a transferee judge to rookies, so as to open up the pipeline.
Finally, Coleman closes with the sobering observation that overcoming gender inequity in the legal profession is daunting, but worth it. I wholeheartedly agree, and suggest that we start by reading her important and timely article.
William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens
, 116 Mich. L. Rev.
(forthcoming 2018), available at SSRN
Parsimony is a vital concept in empirical scholarship. It holds that a simple model that explains things is preferable to a more complex model that explains just as much. The ideal model achieves a desired level of explanation with as few predictors and as little complexity as possible. For example, a regression model with three independent variables that explains a given amount of variance is preferable to a regression model with nine independent variables that does not explain more (or not sufficiently more). The key insight is that complexity is not always desirable or always undesirable; it must be justified by the amount of extra explanatory power that it purchases.
The concept of parsimony can help us make sense of the morass that is personal jurisdiction doctrine and scholarship. The Supreme Court continues to provide a fluctuating cast of more or fewer rules and caveats. Personal jurisdiction doctrine is, to a significant degree, the discursive practice of strengthening or adjusting a few core rules (e.g., Shaffer v. Heitner) or expanding, preserving, and creating caveat categories (e.g., Burnham v. Superior Court). Legal scholars debate whether we should account for new phenomena (e.g., Internet commerce) by adjusting existing categories or creating entirely new caveats and tests. The notion of parsimony offers tools to puzzle through such choices. It reminds us that we cannot simply insist that the creation of new doctrinal categories would be a better fit for new realities. Similarly, we cannot reject innovations simply because they would add complexity. Instead, the cost of doctrinal complexity must be justified by the benefit of a sufficiently better normative fit.
William Dodge and Scott Dodson’s forthcoming Personal Jurisdiction and Aliens does just that. It argues for a broadened national-contacts test for alien defendants. Under this test, the alienage status of a defendant breaks the shackles of a state-by-state contacts analysis. Instead, courts would consider the defendant’s contacts with the whole nation for state and federal causes of action in state and federal courts. This doctrinal innovation would add complexity by explicitly bifurcating (to some extent) the personal jurisdiction analysis based on the domestic or alienage status of the defendant. Is this added complexity justified?
Dodge and Dodson begin their answer to that question by relativizing the charge of added complexity. A national-contacts caveat for aliens would not add significant complexity to current doctrine because, though facially neutral, it already treats alien defendants differently from local defendants in important ways. The reasonableness prong of the minimum contacts analysis and the modern articulation of general jurisdiction make it increasingly difficult to establish personal jurisdiction over foreign defendants. Courts in practice rarely use the reasonableness prong of modern minimum contacts to protect domestic defendants. Instead, this prong is mostly reserved to dismiss suits against foreign defendants. Similarly, while general-jurisdiction doctrine does not mention foreign defendants, they are typically not treated as “at home” in any U.S. jurisdiction. General jurisdiction serves as a fallback option for domestic defendants—at least one state will be able to hear a suit involving a domestic defendant. But because foreign defendants are not “at home” in any U.S. jurisdiction, they can do business with many or all U.S. states but still be immune from general jurisdiction in all of them. Unitary personal jurisdiction doctrine thus hides complexity in application—the doctrine already minds differences between domestic and foreign defendants with the net effect that foreign defendants can more easily escape the reach of U.S. courts than domestic defendants.
Beyond explaining that their proposal would not add much complexity, Dodge and Dodson justify any added complexity by arguing that a national-contacts test for alien defendants is a good doctrinal and normative fit. One key notion that animates much of the argument here is that “once [alien defendants’] contacts justify suit somewhere in the United States, they ought not care exactly where.” Foreign defendants typically do not want to be sued in U.S. courts. But if unavoidable, they care far less about whether to incur that burden in Nebraska or South Dakota. If foreign defendants think of the market, the forum, and the burdens as national, then courts do not impose unfairness by using a national test that sums contacts across states. This also avoids the incentives potential foreign defendants have to structure their substantial U.S. business dealings in a diffuse manner spread across numerous states to become immune to suit in all of these states.
Dodge and Dodson contend that a national-contacts test for alien defendants respects the sovereignty interests of each state and the accompanying limitations on the sovereignty of all other states. Treating alien defendants differently from domestic defendants does not upset the implied federal balance among the states. Alien defendants frequently do not have a special relationship with a state that could be impinged upon by the assertion of personal jurisdiction in sister-state courts. Dodge and Dodson further argue that treating alien defendants differently is consistent with recent Supreme Court thinking and would provide a stronger foundation for building broad and stable coalitions on the Court.
They conclude by arguing that existing protections temper the abuse of a national-contacts analysis for alien defendants. Foreign defendants utilize specific-jurisdiction’s reasonableness factors to challenge the exercise of personal jurisdiction based on the unique burdens foreign litigants sometimes face; these factors continue as a safeguard under a national-contacts test. Similarly, federal venue and transfer statutes, as well as forum non conveniens (among other practical tools), can mitigate excessive litigation burdens on alien defendants.
The power of Personal Jurisdiction and Aliens does not derive from complete originality—others have considered ways to incorporate alien defendants into general jurisdiction doctrine, in federal courts, for federal claims, etc. Instead, Dodge and Dodson’s article shines in two ways.
First, it is timely. Many of the Supreme Court’s recent personal-jurisdiction cases have involved foreign defendants, and alien defendants likely will continue to attract significant judicial attention, generating thorny and consequential doctrinal puzzles and confusions. Second, the article is elegant and thorough. Balancing complexity and fit is a delicate exercise. Dodge and Dodson illustrate how to do it well, even though some readers might strike a different balance or would prefer to purchase complexity elsewhere in the personal-jurisdiction landscape.
This article provides a helpful model for a new wave of scholarship just over the horizon that will grapple with the reach and effects of cases like J. McIntyre Machinery v. Nicastro and Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County and propose new and hopefully parsimonious accounts of personal jurisdiction in a changing world.
Alan M. Trammell, Precedent and Preclusion, Notre Dame L. Rev. (forthcoming 2018).
Preclusion and precedent restrict the permissible range of actions in future litigation. Preclusion bars parties from relitigating claims or issues that have already been adjudicated in a prior action in which the litigant was present. Precedent binds all courts and parties within a relevant jurisdiction to a particular rule or holding if the decision emerged from a court with binding authority. Alan Trammell’s new article undertakes a fresh examination of the tension between these two doctrines: why are future parties bound by precedent and stare decisis regardless of their presence in a prior action, when preclusion doctrines demand prior party presence and jealously guard an absent party’s right to a day in court?
Trammell’s take is that preclusion and precedent embody two different theories of due process. Preclusion protects a “participation-oriented theory,” in which courts are focused on guarding a party’s due process right to a “day in court.” Precedent protects an “outcome-oriented theory,” in which due process bolsters decisional accuracy and protects litigants’ rights to a stable and predictable legal environment.
Trammell frames his article around the problem of serial litigation. As a general matter, parties are not permitted to relitigate claims or issues that have already been litigated. Litigants can circumvent this bar by having a non-party to a first lawsuit bring a second action. In some cases, this has the effect of giving relief to the first party, particularly when the remedy sought is of an equitable nature and all similarly situated persons will benefit from the relief granted to the second-comer. Courts have struggled to articulate workable doctrines that do not bind absent parties to decisions in which they had no ability to argue or influence the outcome, but that also protect defendants from potentially vexatious repeat litigation.
Framing the preclusion/precedent problem as one that is primarily concerned with solving the problem of serial litigation emphasizes the disconnect between the two doctrines and allows Trammell to suggest that any plausible solution must account for a deeper understanding and application of the due process theories that underpin each doctrine, theories directed toward addressing serial litigation. It might be, however, that these doctrines do not fit neatly within the framework of problematic serial litigation. For example, one traditional justification for limiting the preclusive effect of judgments to parties while allowing precedential effect on all future parties is that each doctrine is directed at different classes of actors. The effect of preclusion is to bar future litigants from bringing a claim or relitigating an issue. But precedent does not bind parties directly, per se; rather, it binds future decision makers. Judges are bound by precedent, while parties retain more freedom. Future parties are constrained in their ability to achieve a desired outcome within the molding of existing precedent to which judges must adhere, but they are not barred from bringing the claims in the first place. This framing accounts for the fact that precedent is meant to address more than the problems that arise from serial litigation.
One of Trammell’s main contributions is to demonstrate the gap between theory and reality in this distinction. He urges the reader to look at the reality of the paralyzing and crushing weight of precedent, which becomes a de facto regulator of non-party lawsuits, justified by a due process theory inconsistent with that behind preclusion doctrines. Recognizing two distinct theories of due process better explains the doctrinal conundrum because they reflect the actual effects of each doctrine rather than the theoretical differences in scope. This observation also allows Trammell to advance a normative argument. Looking at each due process theory, he offers a convincing argument that the outcome-oriented theory of precedent is much more consistent with due process theories underlying other doctrines both in civil procedure and in the wider legal context. Applying the outcome-oriented theory to preclusion doctrines would enable courts to relax further the prohibitions on barring non-parties from effectively relitigating settled issues or claims in new lawsuits.
Trammell sees the outcome-oriented theory as dominant and the participation-oriented theory as “anomalous.” Although he makes a convincing case for the dominance of the former, he may be giving short shrift to the latter. While the participation-oriented theory is certainly less prominent, it is a stretch to characterize it as anomalous. Class actions represent the biggest example of the Supreme Court’s concern for the “day in court” theory of due process. The Court has repeatedly issued decisions celebrating the right of each current or potential class member to have his or her personal day in court. Many of the class-action structures, from notice to certification to settlement, are designed to ensure that no party is “absent” before it is bound by a settlement or judgment. Trammell’s intuition might be right to show that these decisions value a participation that is largely illusory. Beyond the fact that only a tiny fraction of absent class members will meaningfully object to or opt out of a class action, the “day in court” decisions rest on a participation theory, but result in less participation in practice. After all, many of the decisions that protect absent class members have the practical effect of weakening the class-action mechanism itself. And since many of these actions are made up of negative expected value claims, the upshot of the Court’s concern about individual participation is to reduce court access altogether.
While the participation-oriented theory might not be a true due process outlier, Trammell is correct to suggest the concern for “participation” might be another outcome-oriented theory. Trammell ends his article with a call for “leveling down,” using the outcome-oriented theory to justify an expansion of non-party preclusion. While this is an appealing doctrinal solution to the problem of serial litigation, class-action jurisprudence shows that courts might be too beholden to the participation-oriented theory in the minority of contexts where it exists—so much so that they will preserve the appearance of participation even when their decisions have quite the opposite effect.
Alexandra D. Lahav, Procedural Design
(2017), available at SSRN
An elegant logic seems to animate the intricate mechanics of civil procedure. To determine whether a requested remedy is appropriate, courts must identify the scope of a dispute, consider whether the law provides a potential basis for judicial action, resolve factual disagreements, apply the law to the facts, and reexamine that application when necessary. These abstract requirements manifest as an ostensibly sequential process of pleading, discovery, trial, and appeal, interspersed with dispositive motions.
In theory, each sequential stage of litigation incorporates data developed in prior stages, enabling courts to make progressively more informed decisions. Although a stage analyzed in isolation may appear to involve disjointed maneuvering, a broader choreography unites and structures all stages of a civil action. But what happens if the choreography unravels, jumbling the order of adjudication?
Alexandra Lahav’s new article, Procedural Design, challenges tidy sequential accounts of civil adjudication. The article builds from an empirical observation to a normative conclusion. Empirically, Lahav observes that civil litigation in federal courts does not follow the “textbook” sequential progression that commentators often assume. Instead, “a federal lawsuit may proceed in almost any order” (emphasis in original). She then contends that this departure from presumed ideals requires rulemakers to articulate guiding principles for the progression of adjudication. The article suggests three normative approaches, although one need not agree with Lahav’s typology of cures to accept her diagnosis.
The article’s empirical claim rests on analysis of five “doctrines of disintegration” that erode the customary sequence of litigation. Three of these doctrines entail consideration of facts prior to discovery. For example, motions to dismiss for failure to state a claim invite speculation about the plausibility of factual allegations and in complex cases can address factually detailed Lone Pine filings. Likewise, class certification motions can lead to “a full blown trial at the commencement of litigation” on an incomplete yet functionally dispositive record. Even summary judgment motions, which seem to require significant fact development, are now often used to avoid discovery rather than as the culmination of discovery. The remaining two “disintegration” doctrines involve shifting legal inquiries away from the starting and ending points of a suit. Appeals are frequently available in the middle of a case rather than at the end, while inquiries into justiciability and jurisdiction can occur throughout a case rather than only at the beginning.
A theme unifying Lahav’s examples is that the role of individual procedural devices evolves over time while the underlying systemic design remains static. Doctrinal evolution has many causes, including revised theories about the desirability of competing ends and the feasibility of proffered means. Procedures that seem misguided or wasteful in one era can appear prudent and efficient in another. Indeed, a recurring catalyst for change is a perception that prior procedures excessively accommodated weak claims or disfavored claimants. This perception raised the bar for pleading and class certification and lowered the bar for summary judgment and interlocutory appellate review.
Whatever the reason for doctrinal evolution, modern usage eventually diverges so far from what was originally expected that a rule no longer fits comfortably within the space for which it was designed. As more time passes, the accumulation of changes across multiple rules increases the system’s drift from its original assumptions. No innovation is revolutionary on its own, but the aggregation of several innovations can challenge assumptions about the proper sequence of litigation.
Lahav contends that this “organized decay”—an evocative quote from Emily Dickinson—has gradually undermined procedural coherence for the past forty years. The consequences are pervasive because the transsubstantive aspiration of federal procedure enables new ideas to propagate across substantive boundaries. For example, there is a short road between holding that complex antitrust cases require relatively precise pleadings and extending the new rule to all civil actions. The consequences of travelling down that road might not be apparent to judges focused on immediate rather than systemic concerns. As Lahav notes, courts often implement “piecemeal reactions to the problems posed by the individual case” without “think[ing] about procedural design holistically.”
Lahav concludes by considering how a holistic approach to procedural design might address questions about sequencing. To test competing options, Lahav posits that a sound procedural regime must promote four goals: a “meaningful hearing,” “a fair chance of reaching the correct result,” “speed,” and making costs predictable while balancing costs against competing objectives. She then identifies three distinct approaches to sequencing and assesses each in light of the goals above.
First, rulemakers might attempt to restore the “textbook” order in which motions “are calibrated to the information available at the stage of the litigation in which they are brought.” This approach has both the benefits and costs of formality. The pretrial, trial, and appellate stages would coalesce in a way that is logically coherent and easily administered, yet potentially stifling and wasteful.
Second, at the opposite extreme, rulemakers could authorize “bespoke procedures.” Judges would tailor the sequence of motions to the perceived needs of a case without any effort to enforce a prescribed order. This system’s flexibility might be productive in some circumstances, but discretion could easily lead to uninformed, arbitrary, or inefficient decsionmaking.
Third, rulemakers could jettison transsubstantivity in favor of “subject specific procedure.” Just as common law courts in England applied distinct procedures to different writs, federal courts might develop unique procedures for different claims. Sequencing would vary depending on the type of claim being considered, but each sequence would be fixed (at least relative to the bespoke option). This hybrid of the textbook and bespoke approaches risks sharing the flaws of each: it may be both too flexible and too rigid. In addition, the administrative costs of creating and implementing myriad sets of rules—including concurrently in cases with multiple claims—might outweigh the marginal benefit of customization.
Lahav acknowledges that all three potential regimes in her typology have flaws. Her goal is not to identify an optimal approach to sequencing procedures, but to provide a framework for further study. She reveals a trend, raises concerns about its consequences, identifies categories of responses, articulates norms by which to test those responses, and provides a preliminary assessment of competing options.
The article raises numerous fascinating questions for scholars to consider. I will highlight three. First, to what extent have adventurous exercises in resequencing significantly altered outcomes in a material number of cases? The article focuses on identifying the theoretical implications of doctrinal changes and provides specific examples, but the practical scope of the problem is difficult to quantify. Second, did the “textbook” description of procedure describe an order that rulemakers never fully embraced? Concise textbook summaries of a complex procedural system inevitably gloss over nuances. Perhaps the conventional account of sequencing was always neater than the reality on the ground, such that modern departures are more incremental than they may seem. Third, is the problem that courts are departing from established norms, or that they are doing so in an ad hoc manner? The FRCP’s framers deliberately designed the rules to be pliant and entrusted them to a common law method of elaboration. The problems that Lahav identifies may be foreseeable consequences of how federal procedure develops, or a reason to rethink the rulemaking process.
Lahav’s rigorous and thoughtful article will be a rich source of insight for scholars addressing these and other questions about the design and implementation of procedural rules.
Symeon C. Symeonides, What Law Governs Forum Selection Clauses
, 78 La. L. Rev.
(forthcoming 2018), available at SSRN
I can think of no better person to answer the burning question, “What law governs forum selection clauses?” than the inestimable Symeon C. Symeonides, of conflict-of-laws fame. Symeonides has stepped into the breach to assist civil procedure and federal courts professors everywhere with an exhausting analysis of how to resolve the problems relating to applicable law as it applies to contractual forum selection clauses.
Some may remember that the Supreme Court in Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas avoided (or evaded) this fundamental question. Instead, focusing on proper procedure, the Court held that a forum selection clause is appropriately enforced through a venue transfer motion under 28 U.S.C. § 1404(a).
Having resolved this vexing procedural issue, the Court left unanswered an array of irksome foundational questions. In the final analysis the Court’s entire Atlantic Marine edifice was erected on the premise that the forum selection clause in that case was valid. In footnote 5, the Court simply noted that “[its] analysis presuppose[d] a contractually valid forum-selection clause.”
Atlantic Marine proceeds from a presupposition of validity, which invites the question of how to decide if a forum selection clause is, in fact, valid. At a minimum, three legitimate questions arise: (1) what body of law applies to evaluate the validity and enforceability of a forum selection clause? (2) what court should make that determination? and (3) when should that determination be made? The analysis is further complicated depending on whether or not the contract also contains a choice-of-law provision. A choice-of-law provision might point to the application of a law other than the law of the plaintiff’s chosen forum. In such cases, as a matter of first instance, does the plaintiff’s chosen forum apply its own law to determine the validity and enforceability of the clauses, or does the choice-of-law provision compel interpretation of validity and enforceability based on the contractual forum’s law? Does the answer to this question vary depending on whether the court’s authority is based on admiralty, federal question, or diversity jurisdiction? And, if the threshold dispute centers on the validity and enforceability of choice-of-law and forum selection clauses, why should another forum’s law govern these questions?
Symeonides leaps into this breach to discuss, evaluate, and propose answers to these questions. In methodical fashion, he takes the reader through a decision-tree analysis, categorizing various possibilities for the choice-of-law question. At the threshold, he suggests that cases need to be assessed based on whether the applicable-law question is litigated in the court designated by the forum selection clause or in another court, and whether a choice-of-law clause is included in the forum selection clause. He also emphasizes that courts ought to pay better attention to the distinction between the enforceability and interpretation of forum selection clauses. He writes: “Once interpretation is separated from enforceability, one can address with a clearer mind the question of what law should govern the enforceability of [forum selection] clauses.”
Symeonides then surveys three possible scenarios where the parties’ contract contains a forum selection clause: (1) actions filed in the court chosen by the forum selection clause, (2) actions filed in a court other than the one chosen by the forum selection clause where the contract does not also contain a choice-of-law clause, and (3) actions filed in a court other than the one chosen by the forum selection clause where the contract does also contain a choice-of-law clause. In discussing the third scenario, he reviews decisions where courts have applied forum law, applied the contract’s chosen law, or distinguished between enforceability and interpretation.
Following an exhaustive recitation of judicial decisions, Symeonides offers these summary conclusions. In scenario 1, courts apply the forum state’s internal law without any choice-of-law analysis. These courts apply forum law in interpreting and determining the enforceability of the clause. In scenario 2, courts apply forum-state law to determine whether the forum selection clause is enforceable. A few cases undertake a choice-of-law analysis, but only in interpreting the forum selection clause. In scenario 3, courts chiefly apply the forum state’s internal law to determine whether the forum selection clause is enforceable and apply the law chosen in the choice-of-law clause in interpreting the forum selection clause.
In assessing what courts have been doing with regard to the applicable-law quandary, Symeonides concludes that most American courts, in all three scenarios, demonstrate a bias for applying lex fori, or the “internal” law of the forum state. The vast majority of courts, he notes, apply the forum state’s internal law to determine whether a forum selection clause is enforceable, and more often than not, do so without conducting a choice-of-law inquiry. Noting this judicial preference for application of lex fori, Symeonides challenges the reader to consider whether this is a bad practice. He reviews the competing scholarly views either repudiating or defending this practice, with his own sympathies tending toward the lex fori approach.
As law professors appreciate, conducting a choice-of-law analysis is not for the faint-hearted. Judge Jack Weinstein is reputed to have once jokingly said that whenever he wanted parties to settle a case, he would call them into chambers and tell them that he wanted them to return to court with a choice-of-law analysis.
As the country’s preeminent conflicts scholar, Professor Symeonides has performed an extremely valuable task in systematically hacking through the Gordian knot of the applicable-law problem intertwined with forum selection clauses. Civil procedure professors, in teaching Atlantic Marine, now have a ready resource to address student enquiries: “So what law applies if we have to decide whether the forum selection clause is valid?” Brave professors may venture an explanation citing Symeonides, or otherwise send questioning students to this thoroughgoing article.
Article III extends “the judicial Power of the United States” to certain “cases” (defined largely by subject matter) and certain “controversies” (defined largely by parties). But why the different words? Does the distinctive terminology track a difference in legal meaning? Questions along this line seem to come up every time I teach about Article III. Finally, I have a concise but fairly comprehensive answer to offer if asked.
My answer now—and my (justified?) confidence in its correctness—comes from James Pfander and Daniel Birk. Their compact piece, Adverse Interests and Article III: A Reply, restates and defends against a powerful scholarly critic—Ann Woolhandler—an account they first advanced two years ago in Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction.
I must confess to paying insufficient attention to that earlier Pfander/Birk article—a 129-page throwback to the days before leading law reviews colluded to impose word limits. But if I can handle this most recent thirty-pager, so can you. And you should go read it with all deliberate speed. Like the pie-eating competition to which the practice of law is sometimes compared, the reward for consuming this legal scholarship will be more legal scholarship. But unlike excessive pie-eating, consumption of this additional scholarship will provide additional satisfaction instead of indigestion. (It’s all protein, no carbs.) Start with the reply, as some judges do with their briefs. And you will then be motivated and equipped to go back and read not only that earlier Pfander/Birk piece but also Woolhandler’s response, Adverse Interests and Article III, with the attention and care each demands and rewards.
Thanks to Pfander and Birk, my in-class answer to the standard “what’s the difference” question will begin something like this: “Yes, good question. There is a difference between ‘cases’ and ‘controversies.’ ‘Cases’ is a broader category than ‘controversies.’ The category of ‘cases’ includes not only civil suits and criminal prosecutions, but also other judicial proceedings that result in a final determination of a claim of legal right, including the granting of petitions for naturalization and applications for warrants. Unlike ‘cases,’ which can exist even if there is a single party before the court, ‘controversies’ require the presence of an adverse party.”
This answer—or beginning of an answer, really—is certain to raise many additional questions in class as we continue our exploration of the federal judicial power. “What about standing doctrine?” “What about the adverse-party requirement?” “Was Justice Kennedy right to treat the presence of an adverse party in Windsor as simply a prudential matter?” “Are you actually saying Justice Scalia’s Windsor dissent was wrong?” “Will this be on the final?” “Can you repeat that so I can type it exactly?”
With the exception of those last two, these are all excellent questions. And the aid offered in thinking through all of them is a virtue not only of the Pfander and Birk pieces, but also of the responsive article from Ann Woolhandler that makes up the middle of this trio. These scholars cannot all be right about everything each asserts; some of their claims are inconsistent. Helpfully, though, Pfander and Birk begin their reply with an overview of some of the areas of agreement between them and Woolhandler. Here is one big one: even under Woolhandler’s more current-doctrine-compatible “adverse interests” approach, an adverse-party requirement is too demanding a formulation of what Article III inflexibly requires.
If judicially accepted, the Pfander and Birk view would significantly unsettle existing doctrine. If they are right about Article III, then “parties do not need an injury in fact to pursue a claim in federal court” (P. 1092), judicial proceedings can be Article III “cases” even in the absence of adverse parties or adverse interests, and Justice Scalia’s dissent in Windsor “began from an incorrect premise” about the need for an adverse party (P. 1073). It does not necessarily follow that Justice Kennedy was right in Windsor to treat the need for an adverse party as something that Article III assigns to case-by-case judicial discretion. But he was right to reject a hard-and-fast Article III adverse-party requirement.
For all its potential to unsettle existing doctrine, there is something about the Pfander and Birk view that makes it relatively easy to accept. The textual distinction between “cases” and “controversies,” they contend, maps onto a more fundamental distinction between contentious and non-contentious jurisdiction. And non-contentious jurisdiction, they show, has been uncontroversially exercised by judicial tribunals in many other jurisdictions over long swaths of time. Pfander and Birk help us recognize something that has been hiding in plain sight for a really long time—“the judicial Power of the United States” includes the authority to accept “cases” of non-contentious jurisdiction assigned to the federal judiciary by Congress. Further, their distinction between contentious and non-contentious jurisdiction offers a helpful lens through which to re-examine much of what we have taken for granted. Once we see the utility and ubiquity of non-contentious jurisdiction in other legal systems, the ability of Article III courts to exercise non-contentious jurisdiction assigned to them by Congress makes a great deal of practical sense, in addition to clarifying the textual distinction between “cases” and “controversies.”
It is not my intent here, though, to endorse every element of the Pfander and Birk approach, or to adjudicate each disagreement between them and Woolhandler. The former strays beyond my considered judgment from my examination of their arguments; the latter extends outside my ken. My goal, instead, is to encourage new readers to take up all three articles for themselves.
Reading good legal scholarship is good for your soul. And these articles are excellent. Tasty, nutritious, and restorative (with just enough pepper to be interesting), Pfander, Birk, and Woolhandler have served up chicken soup for the Article III soul. More often than I should probably admit on the Internet, the consumption of legal scholarship is a disagreeable and sometimes dreadful chore for me. This perspective doesn’t come through in my JOTWELL contributions, I hope, but that is primarily because the point of this forum is to identify and discuss scholarship that we particularly value. Isn’t it especially off-putting, though, when legal scholars disagree in a disagreeable way? And isn’t that disagreeableness often an indicator for distortion of the views with which a scholar is disagreeing? (One example from personal experience as a student law review editor fifteen years ago is Ronald Dworkin’s “book review” of a Jules Coleman book on legal pragmatism.)
If you, too, try to avoid the annoyance of people who cannot disagree without being disagreeable, you can approach the scholarly interchange among Pfander, Birk, and Woolhandler without apprehension. Perhaps “tonic” is a better metaphor than “chicken soup.” Their tone is just right throughout—reasonable and measured but also clear about areas of agreement and disagreement. And that helps the reader avoid the mental distractions that emerge from unnecessary invective. For anyone who makes a living in this profession of law, it is a true professional pleasure to come across a scholarly legal interchange carried out so clearly and cordially as in this series. That is not to say it is non-contentious. The whole point of the exchange is to contend for one understanding of the federal judicial power over another. But scholarly contention can be personally non-contentious while remaining legally rigorous. And this controversy—through both its what and its how—helps us think through why it is the case that Article III extends the judicial power of the United States to encompass both “cases” and “controversies.”
Cite as: Kevin C. Walsh, Adversity and Non-Contentiousness
, JOTWELL (September 22, 2017) (reviewing James E. Pfander & Daniel Birk, Adverse Interests and Article III: A Reply
, 111 Nw. U. L. Rev.
1067 (2017) and James E. Pfander & Daniel D. Birk, Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction
, 124 Yale L.J.
1346 (2015)), https://courtslaw.jotwell.com/adversity-and-non-contentiousness/
William Baude, Is Qualified Immunity Unlawful?
, 106 Cal. L. Rev.
(forthcoming 2018), available at SSRN
Is Qualified Immunity Unlawful? This is the ambitious question that Will Baude tackles in a forthcoming article in the California Law Review. When plaintiffs file damages suits under § 1983 against government officials who violate federal rights acting “under color” of state law, they must overcome the defense of qualified immunity. That doctrine protects government officials from damages claims unless they violate clearly established law that a reasonable person would have known. The Court has emphasized that this is a high standard, protecting all but the “plainly incompetent and those who knowingly violate the law.”
While qualified immunity appears nowhere in § 1983’s text, its lawfulness tends to go unchallenged both in scholarship and in cases. Until now. Baude’s article interrogates the legal justifications for qualified immunity and finds them wanting. Neither text nor history is sufficient to sustain this highly consequential doctrine. He begins with the text, stressing the statute’s language, which purports to hold “[e]very person” liable who violates federal rights while acting under color of state law.
Baude’s article does not end with the seemingly unambiguous language of the statute, however, which would leave it a short article indeed. Instead, he catalogues and rebuts other proffered legal justifications. For example, on the rare occasions that the Court has explained the foundations of the doctrine, it has sometimes either asserted or implied that qualified immunity is a common law doctrine that was implicitly or presumptively incorporated into § 1983 when it was enacted in 1871.
Baude accepts that a common law backdrop can sometimes help us understand the proper scope of a statute. The problem is that the common law backdrop does not support qualified immunity, especially as the doctrine currently operates. In Little v. Barreme, the Supreme Court rejected a broad immunity for civilian government officials who violated the law. And in the decades after § 1983’s passage, courts rejected the notion that state and local officials who violate the Constitution should be immunized from liability. In Myers v. Anderson, the Court held that any claim of such immunity was “fully disposed of … by the very terms of” § 1983.
To be sure, Baude acknowledges that some common law doctrines protected government officials from suit under limited circumstances. Acting in “good faith” sometimes served as a shield to liability. But to the extent that a defendant’s good faith could doom a plaintiff’s suit, this was because bad faith was an element of a specific tort, such as false arrest. “Good faith” was not a broad protection that applied regardless of the underlying alleged violation. What is more, qualified immunity today is an objective standard that applies even when a defendant acts in subjective bad faith. In that way, the qualified immunity defense as it is currently understood outpaces the common law good faith doctrine.
Justice Scalia proposed an additional argument in a dissenting opinion in Crawford-El v. Britton. He contended that § 1983 had been interpreted too broadly, to reach officials who violated state law, because it seemed implausible that a person could violate state law while acting under the color of state law. Qualified immunity provided a remedial correction for this fundamental defect in the Court’s § 1983 jurisprudence. Baude dispatches this argument persuasively, relying in part on the work of scholars such as Steven Winter. “Under color of” is a legal term of art that long has encompassed not only individuals acting with authority, but also those acting with the pretense of authority. Section 1983’s breadth is a matter of congressional choice, so the statute does not need some deep, broad extratextual remedial correction like qualified immunity.
Finally, Baude makes plain that qualified immunity cannot be justified by the rule of lenity, because qualified immunity is much more extensive. Dueling cases from various circuits can help demonstrate that the law is sufficiently unclear to shield a government official from civil liability, while the same division of authority does not provide a basis for lenity in criminal law.
Baude’s piece is, almost self-evidently, a bold and important contribution that emerges at a timely moment. The Court in recent decades has often taken a formalist tone with respect to legal doctrines that outpace statutory and constitutional text. And yet, during the same era, the Court has routinely invoked qualified immunity to protect police officers and other government officials, often reversing lower courts that find the doctrine inapplicable. So what do we make of a doctrine that is not justified by traditional modes of interpretation and that routinely blocks accountability? At least one Justice has acknowledged the need for the Court to confront this question. In a concurring opinion this past term in Ziglar v. Abbasi, Justice Thomas cited to Baude’s manuscript and suggested the Court should reconsider its qualified-immunity jurisprudence in an “appropriate case.” In the absence of new justifications for the doctrine that have not yet emerged, it is time to revisit qualified immunity’s scope, its existence, or both.
It is a common rhetorical trope among far too many federal judges (including Supreme Court Justices) that legal scholarship is of diminishing utility to them and their work, at least in part because scholars have turned their gaze to topics too far removed from those relevant to the deliberations of contemporary jurists. Most famously, Chief Justice Roberts (who does and should know better) echoed this lament at the 2011 Fourth Circuit conference: “Pick up a copy of any law review that you see and the first article is likely to be . . . the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” The Chief Justice’s ill-informed quip may have gotten the most attention, but he is hardly alone.
There is a lot to say about this general claim. In the specific case of the Chief Justice, much of it has already been said by Orin Kerr.
But the juxtaposition of Jim Pfander’s erudite and magisterial new monograph, Constitutional Torts and the War on Terror, and the Supreme Court’s June 19 decision in Ziglar v. Abbasi, suggests a different (and more alarming) possibility: The problem is not that law professors are failing to produce scholarship of utility to contemporary judges; the problem is that the scholarship that is out there just is not getting read. How else to explain both the result and the reasoning in Abbasi—a decision deeply hostile to judge-made damages remedies for constitutional violations by federal officers, and one that is shamelessly indifferent and stunningly oblivious to the rich history and tradition of such remedies that has been well- and long-documented in the academic literature, most powerfully in Pfander’s book.
As Pfander demonstrates, for most of the country’s history, courts and commentators alike unflinchingly embraced the “common-law model of government accountability” (xviii), pursuant to which U.S. officials were routinely subjected to damages liability whenever they invaded the rights of individuals, even foreigners. Whether the liability arose under state common law or the pre-Erie body of federal “general” law, the theory was the same: Judges could—and, indeed, should—fashion remedies to vindicate individual rights, including damages for misconduct that had ceased by the time of the lawsuit. As late as 1963, the Supreme Court was still insisting that “When it comes to suits for damages for abuse of power, federal officials are usually governed by local law.”
Against that backdrop, the Supreme Court’s 1971 decision in Bivens, recognizing that federal judges could imply a damages remedy directly into federal constitutional provisions, was part of a larger shift in patterns of official accountability during the same era—not in favor of increased judicial power, as such, but in favor of federal remedies over state remedies, especially where federal misconduct was at issue. Indeed, there were in 1971 (and remain today) any number of reasons why it makes more sense to treat a case like Bivens as a Fourth Amendment violation, rather than, as the Nixon administration argued, a dispute that could be settled by resort to ordinary state-law trespass principles. Thus, as the second Justice Harlan put it in his concurring opinion in Bivens, once the Court began to prefer federal remedies (including, for example, in suits seeking injunctive relief), allowing judges to imply damages remedies into the Constitution seemed to follow, since “it would be . . . anomalous to conclude that the federal judiciary . . . is powerless to accord a damages remedy to vindicate social policies which, by virtue of their inclusion in the Constitution, are aimed predominantly at restraining the Government as an instrument of the popular will.”
Much of the rest of Pfander’s book unpacks how, since Bivens was decided, we have lost sight of this understanding—and of Congress’s role, in 1974 and 1988, in taking affirmative steps to bolster, if not enshrine, Bivens. And the real proof of this drift, Pfander persuasively demonstrates, is in lower-court decisions arising out of challenges to post-September 11 counterterrorism policies, where courts have allowed an array of debatable (if not dubious) policy judgments to weigh against recognition of a judge-made damages remedy even for egregious violations of clearly established constitutional rights, most notably the torture of terrorism suspects.
What’s more, these decisions would have left victims of constitutional abuses to state law remedies at the time Bivens was decided. But even that limited avenue is no longer an option, thanks to the 1988 Westfall Act, which has been read to convert all scope-of-employment state tort claims against federal officers into FTCA claims against the federal government. All told, then, the book aspires to “provide the tools needed for the Supreme Court to rethink its Bivens jurisprudence,” tools that include (1) a proper understanding of the rich history of judge-made remedies for federal official misconduct; (2) a reassessment of which branch is in the best position to consider the significance of deterrence and indemnification in remedies against government officers; and (3) a recalibration of the doctrine to channel considerations better dealt with elsewhere (e.g., qualified immunity and state secrets) into those avenues. “Only the Supreme Court can implement this new model of litigation,” Pfander concludes, but such a model would “harken back to the common-law model that the founders of our Constitution borrowed from England,” and would “enable a federal court to follow the ‘plain path of duty’ identified by Justice Story and ‘to administer the law as it finds it.’”
Contrast Pfander’s exhaustive work (both in this monograph and in his vast body of work on related topics) with the sum total of what Justice Kennedy had to say about all of this history and analysis in his opinion for the 4-2 majority in Abbasi:
In 1871, Congress passed a statute that was later codified at Rev. Stat. § 1979, 42 U.S.C. § 1983. It entitles an injured person to money damages if a state official violates his or her constitutional rights. Congress did not create an analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a specific damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal Government.
In 1971, and against this background, this Court decided Bivens.
No wonder, then, that Justice Kennedy thought it such “a significant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation.” As Pfander’s book (and plenty of other scholarship by Pfander and other scholars) shows, it was never understood to be such a significant step until Bivens constitutionalized what had to that point been common-law damages remedies. Justice Kennedy’s response is that damages remedies are especially problematic in national security cases. But his argument to that effect, as I have suggested elsewhere, is normatively incoherent. Instead, as Pfander argues, national security cases are particularly important contexts for robust judicial remedies, especially after the fact.
Even Justice Breyer’s pointed (for him, anyway) dissent, which cites Pfander’s book, misses the forest for the trees—invoking it in support of the proposition that “It is by now well established that federal law provides damages actions at least in similar contexts, where claims of constitutional violation arise. Congress has ratified Bivens actions, plaintiffs frequently bring them, courts accept them, and scholars defend their importance.” (Emphasis added). A cursory perusal of the cited authority—Pfander’s book—shows that the story is so much richer and the Court’s abandonment of that history in Abbasi so much more troubling.
* * *
Pfander’s book is a Thing I Like Lots for several reasons. Its substance is, in my view, unanswerable (although it would certainly be useful to see what a thoroughgoing academic response would look like). Its bottom line about the significance of a robust judicial role in national security cases, in particular, could not be timelier. And the extent to which the Supreme Court just ran roughshod over the rich historical and doctrinal analysis it provides is, I fear, a powerful indictment not of the utility of contemporary legal scholarship, but of the Justices’ interest in taking it seriously. I am often reminded, when thinking about how judges use scholarship, of the Scottish writer Andrew Lang’s quip about those who use statistics the way drunks use lampposts—seeking support rather than illumination. Pfander’s book is, and should have been, intensely illuminating. That a majority of the Supreme Court saw otherwise is, and ought to be, far more vexing to legal scholars than the suggestion that we are all too busy writing about “the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria.”
Amalia Kessler’s book, The Invention of American Exceptionalism, is a rich history of American procedural development. The book, which is meticulously researched, sets procedural developments in their political context, and is an excellent example of a social history of law. She describes the relationship between 19th-century procedural developments and struggles over both capitalism and race. She traces English influences on our history, such as the development of equity practice, and French influences, such as the Freedmen Bureau Courts, which were inspired by French conciliation courts. Among other things, Kessler unearths the American equity tradition and with it fights over judicial power versus lawyer (and jury) power, as well as the development of lawyering as we know it today. There is too much in the book for me to adequately summarize it, so instead I will offer two vignettes from the book, the first conceptual and the second a narrative, both focused on the antebellum history of equity.
The first, conceptual, vignette describes the requirements of historic equity procedure and helps us understand our own practices by making them strange to us. Indeed, one of the best things about reading a historical study such as this is learning to understand our world in new ways by comparing it with a past understood on its own terms. So it is with the story of equity and the judicial search for truth. The modern cliché is that there was never a better test of truth than the cross examination. This idea, Kessler shows, was invented in the first decades of the nineteenth century by lawyers seeking to show their value to clients and to society. In equity practice at that time, a very different view of how to get to the truth prevailed: the truth would be best obtained in secret, without the pressures of the parties bearing down on witnesses to alter their stories.
In its ideal form, equity practice required that the judicial officer (the chancellor or an appointed magistrate) question witnesses in secret. The officer would take notes on the testimony of the witness without the lawyers or parties present. This was the equivalent of what is known today as a deposition. Because it was in secret, the lawyers could not cross examine the witnesses. Indeed, they did not know what the witness told the judicial officer so they could not use that witness’s testimony to prepare other witnesses or their own clients for their deposition. When all the witness testimony was taken and every piece of evidence admitted, the testimony would be published to the lawyers – that is, it would be made public – and no more evidence could be introduced. At that point, lawyers could use the testimony to argue their case. Secrecy was the path to truth-telling.
This is a very different conception of human psychology than that found in the “crucible of trial” formulation so popular today. Instead of getting at the truth under the pressure of that Perry Mason moment when the witness is confronted by her own lies, the truth is obtained by relieving the pressure and allowing the witness room to be honest without attorney intervention or prompting. If the witness could not be influenced during the proceeding by the lawyer, she was more likely to be truthful. If the attorney could question her and prepare her to conform her testimony to that of other witnesses, she was more likely to misrepresent the truth to favor one or the other of the parties. This is similar to the principle that governs the German system today, as I understand it, in which the judge questions the witnesses and preparing a witness for testimony is an ethical violation. Not so in our system, where lawyers conduct depositions outside the judges’ presence and not preparing a witness is malpractice.
What happened to the idea that truth is best obtained in secret, without lawyer involvement? In his masterful history of procedure, How Equity Conquered the Common Law, Steve Subrin argued that the Federal Rules of Civil Procedure largely represent equitable practices rather than those of common law courts. Yet our rules and trial procedures depend on lawyer-led interrogation with no judge present; we cannot even imagine judges questioning witnesses in secret unless the matter concerned national security. How can this be? The answer is partly structural. The equity courts during the period Kessler covers were understaffed and therefore appointed magistrates, rather than permanent commissioners, to interview witnesses. Because the magistrates were not familiar with the case and were sometimes in the pockets of the lawyers, they became increasingly dependent on the questions lawyers submitted in advance of depositions. In fact, they became something more like stenographers than investigators. Ultimately, driven by the fiscal and structural constraints and by the constant pressure of the bar, equity courts in New York abandoned secrecy and permitted lawyers to attend depositions. The problems and complaints about equity meant that for many years—and especially as his tenure neared its end—Chancellor Kent may have been one of the most hated men in New York. (Kent was one of the most famous jurists of his day and is often praised in procedural histories as the father of equity practice in the United States).
Lawyers, argues Kessler, wanted the opportunity to show off to justify their fees, and the way to do that was to transform litigation into a kind of spectacle, which in turn required lawyers to erode the secrecy that characterized equity practice. Secrecy limited their ability to perform for their client. Lawyers styled themselves as great orators, comparing their role favorably to Cicero, and attempted to reposition themselves as servants of the public good so that they might stave off accusations that they were manipulating legal process to increase their fees. The accusation that “doing well by doing good” is self-serving clap-trap should sound familiar to the modern ear.
One could not reasonably disagree with Kessler’s assessment that manipulation was part of the story of professionalization of the bar that in the mid-1800s. But there is something incomplete about this description of lawyers (then and now). The example that comes to mind is Richard Henry Dana, a Boston lawyer who in the 1840s and 50s represented fugitive slaves and persons tried for attempting to forcibly free them, as well as commercial clients. Dana wrote in his diary that his representation of fugitives brought him support from the Boston community and thus more clients, helping him to build his commercial legal practice. But Dana took a risk standing up to the slave power, which was strong in Boston (where the local mercantile elite benefitted greatly from slavery), and was attacked and severely beaten by a ruffian on the streets of Boston for doing so.
The issue of controlling lawyer behavior is a theme that runs through the book, one that is crucial to the policy questions (past and present) about lawyer-versus-judicial control over proceedings. This is one core aspect of the adversarialism to which Kessler’s title refers. And it brings me to the second vignette, a wonderful story from the courts of equity in late-seventeenth-century England that provides great insight.
A lawyer managed to get his case into the chancery court and this gave him an advantage over his adversary, who was only familiar with common law practices. How so? The lawyer knew the commissioner who had taken the testimony of his witness in the case and obtained (wrongfully) the transcript of that witness’s testimony. Recall that once all the evidence was taken in a case at equity, the judge closed the case by “publishing” the deposition transcripts. This lawyer took it upon himself to publicize the transcript after the first witness (his witness) had testified. He did this by coming to his rival’s office and reading the statement to him out loud. The common-law lawyer took his client immediately to the equity court and asked to provide his client’s side of the story. Unfamiliar with equity practices, he revealed to the commissioner that his opponent had read him the testimony. This was a disaster for his client. The commissioner told him that he would now close the case to further evidence, as the testimony had been publicized.
What does this story teach us? That some gamesmanship is unavoidable in any procedural system, and always has been – at least since the late 1600s. No matter what rules are adopted or protections created, unscrupulous actors will abuse their power, cheat their adversary, and distort the system of which they are a part. Within the judicial system, this is true not only of lawyers, but also of judges and magistrates. A court system, in the end, depends on the people who use it and the people who staff it. The problem, in other words, is not only the system but the participants. Out of the crooked timber of humanity, no straight thing was ever made.
The procedural system plays a crucial role in what people can and cannot get away with, and the norms within that system play a role in what people will and will not do. However well-designed the system, abuses are inevitable. The philosopher Stewart Hampshire argued that moral conflict is eternal and that one must focus on procedures that allow contestation of moral norms. The court system offers one such set of procedures, but they are always eroding, in need of shoring up, and in danger of being distorted. The procedures themselves are a site of moral conflict. Kessler’s book is important because it reminds us both that these battles have been going on forever and that understanding past fights helps open possibilities for reform in the inevitable future conflicts.