Yearly Archives: 2016

Discovery Costs and Default Rules

Dec 19, 2016 Jay Tidmarsh3 comments

In One-Way Fee Shifting After Summary Judgment, Brian Fitzpatrick and his student, Cameron Norris, address what has been the dominant impulse in federal procedural reform for the past thirty-five years: reducing cost and delay in civil litigation.

The most recent effort to curb litigation expense — the 2015 amendments to the Federal Rules of Civil Procedure that, among other things, sought to invigorate the concept of proportional discovery expenditures that had first found its way into the Rules in 1983 — has been widely criticized as feckless. Switching the proportionality requirement from (principally) Federal Rule 26(b)(2) to (principally) Federal Rule 26(b)(1) and then eliminating “subject matter” discovery seem to be little more than moving the deck chairs on the Titanic, given that judges have no more tools in 2016 to determine whether discovery is proportional than they had in prior years, and “subject matter” discovery was minimal at best.

One fundamental difficulty with requiring that discovery be proportional to the needs of the case — as alluring as this principle is in theory — is its informational demand. Neither the parties nor the judge can quantify with any certainty the most relevant proportionality variables: how much the case is worth, how much discovery will cost, or how much the information will affect the likelihood of recovery (including how much follow-on discovery might affect this calculus). Equally problematic is that the parties often have a private incentive to engage in discovery that, from society’s viewpoint, is disproportionate.

Take a simple example in which all the variables are known. The plaintiff has a 50% chance of winning a $100,000 claim. The plaintiff seeks discovery costing $7,000 that will increase the odds of victory to 60%. But the defendant will then seek to obtain discovery to discredit the new information, and at a cost of $4,000, can successfully minimize the impact of the discovery, reducing the plaintiff’s chances of recovery to 55%.

As an initial matter (and without regard for who pays for the discovery), the plaintiff’s discovery seems proportional: a $7,000 expenditure increases the expected value of the case by $10,000 (from $50,000 to $60,000). When the defendant’s countermeasures are considered, however, this discovery is not justified. Looked at in total, the plaintiff’s discovery request has triggered $11,000 in expenses (the original $7,000 in response to the plaintiff’s request, plus an additional $4,000 for countermeasure discovery) but moved the value of the case by only $5,000. To the extent that proportionality is judged in cost-benefit terms, this discovery is not proportional.

Confounding the calculation in some cases is the American approach to paying for discovery: as a rule, the requesting party bears the burden of making the request (a burden that is often fairly minimal), while the responding party bears the burden of providing the discovery. On the assumption that the defendant bears the $7,000 cost of providing the initial discovery while the plaintiff bears the $4,000 cost of providing the countermeasure discovery, this “responder pays” approach gives the plaintiff an incentive to ask for the initial discovery: a $4,000 expense yields a $5,000 increase in case value (from $50,000 to $55,000). And the defendant has an incentive to ask for the countermeasure discovery: at an expense of $0, the value of the case falls by $5,000.

If each party bore its own costs — and another 2015 reform hinted that judges should consider this “requester pays” approach more broadly — then an omniscient plaintiff would not have requested the initial discovery: the plaintiff would expect to expend $7,000 to yield a benefit of $5,000. But on facts that were styled differently, it could be shown that the requester-pays approach (as well as the loser-pays approach adopted in countries other than the United States) would also lead to inefficient discovery. The sad reality is that the private incentive to invest in litigation often diverges from the public goal, represented inter alia in the proportionality principle, of cost-effective action by the parties.

But the most immediate problem with proportionality is the improbability that the parties and the judge have access to information of the precision that the hypothetical provides. The parties and judge may have some sense of the cost of the discovery itself, but the value of the claim, the likelihood of winning, and the impact of countermeasure discovery on the value and likelihood are dimly graspable at best, and simply unknowable in most cases. Any proportionality rule that asks the judge to engage in a case-by-case cost-benefit analysis regarding the cost of discovery sounds great as an aspirational matter but is unenforceable in practice — as our thirty-three-year history with proportionality shows.

For that reason, default rules become attractive. Such rules may not offer finely tuned balancing of costs and benefits in each case. But a default rule that, in the main, leads to a more efficient outcome may yield more benefit in the long run than a more tailored approach that is unwieldy in practice. Fitzpatrick and Norris propose a new kind of default rule to deal with excessive discovery expenditures. It is ingeniously simple: require the plaintiff to pay the difference between the plaintiff’s discovery expenses and the defendant’s discovery expenses — but only when the plaintiff loses a motion for summary judgment. This modified requester-pays rule does not kick in if the plaintiff prevails in whole or part on the motion for summary judgment, or if the plaintiff settles or voluntarily dismisses the case before summary judgment is entered.

The authors argue that this rule is better than pure producer-pays, requester-pays, or loser-pays regimes, including the present producer-pays approach with a proportionality principle. A lose-summary-judgment-and-pay-the-discovery-cost-differential rule particularly targets the problem of asymmetric discovery, in which one party (typically a defendant) has access to far more information than the other party (typically the plaintiff). In a producer-pays world with asymmetric information, the plaintiff has an incentive to ask the defendant for significant amounts of information as a means of driving up settlement values. To recur to the example above, if we assume that the plaintiff’s discovery requests would require the defendant to spend $60,000 to respond, the defendant has an incentive to settle even a frivolous case for substantial value. By shifting the differential between the plaintiff’s and the defendant’s discovery costs (in other words, the measurable extent of the asymmetry) to the plaintiff when the plaintiff persists in prosecuting the case despite the lack of a “genuine dispute as to any material fact,” a plaintiff’s incentive to engage in “impositional discovery” (discovery so costly that it shakes a defendant down to settle a meritless case) is vastly reduced.

As a stand-alone way to limit discovery costs, the authors’ proposal seems insufficient. To the extent the problem is excessively costly discovery, the solution is overinclusive in one way. There are well-known empirical analyses (here, here, and here) that the cost of discovery is not excessive, except in a small subset of cases. The authors dispute the validity of some of this data, but perhaps they need not. Even if the data are correct, the “problem cases” involving excessive discovery expenditures are also likely to be cases with vigorous summary-judgment practice; therefore, the proposal could make headway to contain discovery costs in the cases in which containment is most needed.

The proposal is also underinclusive in some ways. There are data (here and here) about how frequently summary judgment is sought and how frequently it terminates an entire lawsuit; summary-judgment termination occurs in fewer than 10% of federal civil cases (6 to 7% seems to be about right in most district courts). So the authors’ solution would not affect discovery costs in most cases, unless the proposal has an outsized in terrorem effect. On the positive side, however, the proposal might affect cases in which the cost of discovery is greatest (on the reasonable assumption of a substantial overlap between cases involving high discovery costs and cases in which summary-judgment motions are filed). It also fails to address situations in which the asymmetry in discoverable information favors the defendant, who can force the plaintiff to expend substantial amounts on discovery. Like Federal Rule 68, this proposal is a one-way ratchet that operates only in favor of defendants. But it is not clear that many cases feature such asymmetries. Even if their proposed rule is underinclusive, therefore, it takes a small bite out of the problem of discovery cost — and could do more if joined with proposals to curb excessive discovery in other cases.

Of course, it is in the nature of default rules to be over- and underinclusive, so these concerns do not doom the idea of making plaintiffs pay the differential in discovery costs when they lose a summary-judgment motion. The greatest drawbacks to the proposal are its untoward side effects. As the authors acknowledge, defendants have an incentive to run up their discovery-response costs, precisely to keep risk-averse plaintiffs from pressing their claims. Moreover, the proposal may make some defendants less willing to settle litigation and more willing to play the case out through summary judgment precisely to recoup discovery costs, thus increasing overall litigation costs.

More generally, as Samuel Issacharoff and George Loewenstein have shown, any toughening of summary-judgment standards for plaintiffs suppresses settlement values for plaintiffs’ claims across the board; the same effect seems likely under the authors’ proposal. As the authors acknowledge, judges who realize the consequences to plaintiffs when summary judgment is granted (that they must pay the discovery cost differential) may become less willing to do so, thus defeating the purpose of the proposal. Finally, the proposal would add to the perception that federal courts are pro-defendant, which might drive some plaintiffs into state courts that did not adopt this proposal, or, more problematically, discourage them from bringing meritorious suits at all.

My preference is for a broader approach to litigation costs (about which I have written in a prior post and elsewhere): require the parties to establish, and live within, litigation budgets (including a budget for discovery). Such an approach is perhaps too radical for most, although litigants in England have been faring reasonably well under a variant of this method for nearly four years. Fitzpatrick and Norris’s proposed rule is perhaps more politically palatable: less sweeping and more targeted at cases susceptible to disposition on summary judgment. In the end, however, its side effects seem sufficiently grave and its reach sufficiently narrow that implementing the proposal without first trying it out on a pilot or experimental basis is probably a mistake.

But the impulse behind the proposal — to find simple, workable solutions that allow us to abandon an amorphous proportionality inquiry — is exactly right. May many more such proposals blossom in the years to come.

Time to Say Goodbye to Forum Non Conveniens?

Dec 8, 2016 Robin J. EffronAdd a Comment

The doctrine of forum non conveniens is a mainstay in the modern defendant’s procedural arsenal in transnational cases. Under this common law doctrine, which the Supreme Court first recognized at the federal level in 1947, a judge may consider a number of private and public factors to decide whether a lawsuit over which it otherwise has jurisdiction should be dismissed and (at the plaintiff’s initiative) relitigated in another, non-U.S. forum. In her thorough and thought-provoking article, Maggie Gardner goes beyond the multitude of scholars who have called for the doctrine to be refined, reformed, or limited, and instead calls for its retirement from federal procedural law altogether.

Gardner recognizes the enormity of this task, and suggests jettisoning forum non conveniens only after presenting a careful history of the doctrine and a thorough canvassing of the critiques and reform proposals that have dotted the lower-court and scholarly landscapes over the past few decades.

Gardner identifies several problems with forum non conveniens, both in the doctrine and the proposed reforms. She argues that the doctrine, once rooted in notions of international litigation and principles of comity, was refashioned for the domestic context before it mutated again to its current role in transnational litigation. This meandering doctrinal path has left forum non conveniens with an odd assortment of vestiges of domestic and international concerns that are no longer meaningfully relevant to modern transnational litigation. In addition to these doctrinal mismatches, Gardner argues that the doctrine focuses an outsized lens on the issue of availability of evidence in long-distance situations – a problem that does not plague modern litigation, where the feasibility of access to evidence is facilitated by modern technology and ease of travel. The doctrinal difficulties are linked to the problems with proposed reforms. Because reform efforts take the doctrine’s existence and multi-factored test as their starting point, they tend to only add more complexity to the doctrine. But as Gardner ably shows, it is the layers of complexity that created the problems in the first place.

Other difficulties stem from forum non conveniens’ status as a common law doctrine. Forum non conveniens became an exclusive tool of transnational litigation because its more general domestic application was edged out by statutes such as 28 U.S.C. § 1404(a), which allows for transfer of venue within the federal system. The changing nature of litigation, and particularly transnational litigation, makes the general test for forum non conveniens, as adopted in 1947 and reconfigured for the transnational context in 1981, an awkward fit. One would think that a discretionary common law doctrine would be precisely what this situation calls for – that the evolutionary nature of common law reasoning would provide the necessary adaptability to a new litigation landscape and that the discretionary nature of the doctrine would allow judges to use it as a flexible backstop. But Gardner convincingly argues that the standard itself is the wrong test and that reforms, which should be easy to generate within a common law doctrine, are “partial, inconsistent, and generally unsuccessful.” Due to the awkward fit of well-intentioned but inconsistent reforms with the wrong test, a true reform of forum non conveniens becomes “difficult, perhaps impossible.”

I am skeptical, however, that retiring forum non conveniens would ameliorate many of the doctrinal problems she identifies. One of Gardner’s insights is that forum non conveniens analysis is redundant in light of the inquiries made under several other procedural doctrines such as personal jurisdiction, the presumption against extraterritoriality, and the enforcement of forum-selection clauses. With the “safety valve” of forum non conveniens gone, courts would rely more on these other doctrines for policing the outer boundaries of transnational litigation in U.S. courts. There is no guarantee that the sloppiness of forum non conveniens would not simply reappear as problematic inconsistencies in their new doctrinal homes. Personal jurisdiction is already notorious for its lack of clarity. And because personal jurisdiction carries the weight of constitutional due process, the boundaries of the availability of an American forum for transnational litigation might become simultaneously more unforgiving and more unpredictable. Gardner recognizes this objection and argues that the redundant focus of comity and “exorbitant” exercises of jurisdiction in transnational cases in both forum non conveniens and personal jurisdiction is part of what has enabled the Supreme Court to keep generating imprecise and inconsistent opinions in both arenas. Narrowing the inquiry to one doctrine might nudge the Court towards a more narrowly tailored and coherent personal jurisdiction doctrine in both international and domestic cases.

But it may be that forum non conveniens is more rhetorical flourish than anything else, and that the difficulties and vagaries of personal jurisdiction, particularly as applied to foreign defendants, will continue even without the doctrinal distraction of forum non conveniens. Moreover, relocating to personal jurisdiction many of the doctrinal fights over the propriety of the use of American forums for resolution of transnational disputes may have some unfortunate consequences for personal jurisdiction doctrine. Many of the doctrines that govern ordinary access by ordinary parties to ordinary U.S. courts already are driven by outlier fact patterns and defendants, frequently foreign or remote defendants. When this fight must now occur almost entirely within the boundaries of personal jurisdiction doctrine, I fear that the contours and rhetoric of personal jurisdiction will be further driven by an outsized focus on the transnational, rather than an orderly and measured focus on the typical.

Gardner’s article concludes with the suggestion that the most promising way to retire forum non conveniens is through legislative intervention. Gardner suggests that the federal government pursue reinvigorated negotiations for a harmonized judgments treaty, which would then be implemented by statute into domestic law. She envisions that such legislation would limit forum non conveniens to “exceptional circumstances” and would focus exclusively on a refined private-interest analysis. I believe that she is correct in identifying this as the strongest path forward, and would suggest that its success would be bolstered by simultaneous legislative intervention into the doctrines of personal jurisdiction and forum selection clauses. Without a holistic legislative approach, the problems that Gardner so aptly identifies will only live to see another day as residents of new doctrinal arenas.

Equity, the Judicial Power, and the Problem of the National Injunction

Nov 24, 2016 Kevin C. Walsh1 comment

Samuel Bray’s newest article tackles a topic of serious concern. The national injunction is an injunction against the enforcement of a federal statute or regulation against all people nationwide, not simply to protect the plaintiffs in one case. It is a powerful tool for political actors and interest groups who use litigation to accomplish regulatory and de-regulatory goals.

Unknown to traditional equity, the national injunction somehow wormed its way into judicial practice in the second half of the twentieth century and has been deployed with powerful effect through the present. Bray identifies some of the principal problems caused by the national injunction, investigates the changes that led to its emergence and spread, and offers a simple principle for limiting injunctive relief to the protection of plaintiffs. If adopted, Bray’s prescription would end the national injunction.

Bray justifies his reform proposal as a translation of traditional equity principles, growing out of the institutional transformation of equity practice. England had only one Chancellor, one person empowered to issue injunctions. In the United States, by contrast, every federal trial judge is a chancellor when deciding on equitable relief.

That injunctions can extend beyond protecting individual plaintiffs to reach all people nationwide creates two big problems: an incentive to forum shop and a risk of conflicting injunctions.

The forum shopping point is easy to grasp. As Bray explains, “[i]t is no accident that the major national injunctions in the George W. Bush administration were issued by California courts, and the major national injunctions in the Barack Obama administration have been issued by Texas courts.” The shopping is not just for trial judges, but also for appellate courts like the Ninth Circuit and the Fifth Circuit. “The pattern is as obvious as it is disconcerting.”

The risk of conflicting injunctions is “less common,” but still “potentially serious.” Bray points to historical examples of conflicting injunctions, but the problem is not limited to the past. As Bray writes his article, for instance, cases were pending in the Eastern District of New York and the Northern District of Illinois seeking injunctions that would require the federal government to ignore a national injunction granted by a federal district court in Texas prohibiting enforcement of President Obama’s deferred action immigration program.

By tracing these two problems to the institutional shift to multiple chancellors, Bray roots his reform proposal in traditional principles of equity practice. Because English equity practice had one chancellor, it did not need to develop solutions to the problems of forum shopping and conflicting injunctions.

At the same time, equity had principles limiting the scope of equitable relief, which must be translated to the setting of multiple chancellors. The rule Bray prescribes can be stated in terms of what an injunction against enforcement of a federal regulation or statute should and should not cover: “A federal court should give an injunction that protects the plaintiff vis-à-vis the defendant, wherever the plaintiff and the defendant may both happen to be. The injunction should not constrain the defendant’s conduct vis-à-vis non-parties.” A “rule of thumb” for thinking this through is to look ahead to possible contempt proceedings: “an injunction should be no broader than what the plaintiffs—not in any kind of representative capacity, but solely for themselves—should logically be able to bring contempt proceedings to enforce.” Bray does not just make this rule up; he roots it in traditional equity, in which “injunctions did not control the defendant’s behavior against non-parties.” But Bray also acknowledges that “traditional equity never condensed its practice into a sharply defined principle” such as the one he advances. Again, the reason for this is historical and institutional. “With only one chancellor, and with a modest conception of what equitable relief was supposed to do, traditional equity did not need to develop rules [like this one] to constrain the scope of injunctive relief.”

I am not normally one to quibble about article titles, but Bray’s title may obscure the most interesting and important contributions of his article by highlighting just one. Multiple Chancellors: Reforming the National Injunction is a fine title for an article that does only what this review has thus far described.

But Bray’s article does something more. And that something more provides an opening for additional promising scholarship seeking insight into conceptual transformations in the self-understanding of those exercising the judicial power of the United States.

As Bray recognizes, the “multiple chancellors” aspect of equity in the federal courts is a “structural precondition” of the forum shopping and conflicting injunction problems that stem from national injunctions. But it does not explain why such injunctions emerged with any frequency only in the second half of the twentieth century. We had multiple chancellors long before that.

Bray offers a tentative explanation that is compelling as far as it goes. He points to two “ideological shifts,” along with judicial experience with desegregation decrees leading to creation of the Rule 23(b)(2) class action (that is, the class action for injunctive relief).

One “ideological shift” is in how judges think about suits for injunctive relief. The older conception was to view injunctions against enforcement as anti-suit injunctions, a defensive, plaintiff-protective conception. The newer conception understands a suit for injunctive relief as a challenge to the validity of a statute. In this way of thinking, the injunction-seeking plaintiff is on the offense.

This shift is closely related to another, which is a change in judges’ conceptions of what they are doing vis-à-vis an unconstitutional statute. Under the older conception, a judge would decline to recognize an unconstitutional law or invalid regulation as applicable in resolving the case at hand. As applied in the anti-suit injunction context, this older conception would result in an injunction enjoining enforcement against the plaintiff. Under the newer conception, the judge “strikes down” the law or “sets aside” the regulation. Bray captures the import of this shift: “If a court considers a statute inconsistent with the Constitution, and thus does not apply it, nothing follows about the remedy…. But on the contemporary conception of what a court does—striking down or setting aside an unconstitutional statute or regulation—a national injunction begins to have a relentless logic.”

In elaborating these conceptual shifts, Bray identifies other variables. Scholars, lawyers, and judges seeking to better understand how the federal judicial power has drifted into its present, confused state when it comes to the intersection of constitutional adjudication with injunctive relief would do well to follow up on these other variables.

One is passage of the federal Declaratory Judgment Act in 1933. By untethering cases from coercive relief, the Act may have transformed the idea of what makes a case fit for judicial resolution, as critics of the Act feared. Another is the rise of facial challenges, a term that reflects the offensive nature of constitutional adjudication. With the statute itself on the chopping block, constitutional adjudication is conceived less in terms of the rights and duties of the parties vis-à-vis each other under the law and more in terms of the court doing something to the statute itself. Finally, Bray points to the Administrative Procedure Act, which says that federal courts are to “set aside” unlawful agency action. When that action is a regulation promulgated after notice and comment, one sees the parallel with the idea of “striking down” a statute. The APA’s language, Bray notes, is “less violent but still suggestive of physical dislocation.”

Following Bray’s lead, it is possible to probe the parallel between the shifting conceptions of judicial treatment of invalid regulations and unconstitutional statutes and the origins of the phrase “judicial review.” While it is commonplace to treat “judicial review” of federal laws as extending back to Marbury v. Madison in 1803 (at least!), the phrase itself was not used to describe the practice until the early twentieth century. As used to describe the practice of refusing to recognize unconstitutional statutes, the phrase “judicial review” appears to have been imported from the practice of reviewing the legality of administrative regulations and orders.

When one burrows deeper into the origins of the national injunction, one recognizes that the metastasis of injunctive relief is just one symptom of a broader pathology afflicting the federal judiciary. Most federal judges’ conception of what they are doing when entering injunctive relief against the enforcement of an invalid regulation or an unconstitutional statute is removed not only from traditional equity but also from traditional understandings of the judicial power itself. Bray’s prescription treats this symptom, and his description helps us understand related problems such as injunctions against the enforcement of statutory provisions that do not even apply to plaintiffs obtaining the injunction. Bray’s article can help the judiciary put one problem—the problem of national injunctions—to rest. And it provides a needed alert to the existence of others.

Introducing U.S. Law

Nov 9, 2016 Simona Grossi1 comment

Teaching an introductory course on United States Law to foreign students is a challenging task, regardless of whether it is done in a U.S. law school as part of an LL.M. program or in a course taught abroad. LL.M. programs usually provide one such course each academic year. Some of these courses use material randomly assembled by the teachers and assigned to the class. Others use published casebooks, most of which are outdated or otherwise unsatisfactory, too synthetic to achieve their stated goal, lacking a unitary vision, and devoid of informative comparative angles.

Robert Klonoff’s Introduction to the Study of U.S. Law is the most updated, thorough, and precise text on the subject currently available. The first true “U.S. Law” casebook for foreign students and designed in the U.S. law school tradition, it embarks on its mission with intriguing comparative law angles, addressing questions that a foreigner might raise when first confronting U.S. law. Overall, the casebook offers a solid, engaging, and effective guide to the study of the pillars of the U.S. legal system. The selection of topics, the organization, and the clearly stated analysis make the book an effective tool for any foreign lawyer interested in taking the bar exam in the United States. But it is so much more than that.

Klonoff’s casebook also offers a useful compendium for students, practitioners, and academics already grounded in U.S. law, with a carefully updated, comprehensive, and profound vision of the crucial rules and doctrines underlying our system. I could easily imagine this casebook being used in a final law school course giving students an opportunity to appreciate the legal system in its entirety. The book is especially effective in showing the common grounds and common problems that run through U.S. law, contributing to that holistic vision necessary to meaningfully approach legal analysis.

Each chapter in the casebook might also serve as introductory reading for a foundational course on the subject. For example, as a Civil Procedure teacher, I found the chapter on procedure quite intriguing. It provided an interesting Civil Procedure “story” that a professor might assign before moving to the fragmentation and topic-by-topic approach that we all must necessarily attend to. It also provides a carefully stated and streamlined presentation of the topics one typically associates with a first-year Civil Procedure course. Using Goldberg v. Kelly on procedural due process as the opening gambit is a deft move, as that case introduces the reader to (or reminds him of) the idea that any civil procedure topic should be addressed against a solid and concrete due process background.

Each chapter similarly opens with an introductory note highlighting the central features of the topic, covered through the edited opinions and accompanying Notes & Questions. The move from the general to the particular was balanced and effective, serving as a powerful bridge from the author to the teacher to the student. In fact, the Notes & Questions offer context to the cases and preview the doctrines that tie the cases together. They also introduce foreign students to the Socratic method, trace for them an effective learning path, and generate wonderful classroom exchanges. Klonoff also uses them to develop substantive themes that go beyond the specific cases covered, often showing the connections between those cases and other areas of study.

After providing an overview of the common law system in the U.S., the judicial system and the lawyers’ role within it, the casebook offers a thorough overview and analysis of the foundational subjects of the U.S. legal system: Constitutional Law (Chapter 2), Civil Procedure (Chapter 3), Contracts (Chapter 4), Torts (Chapter 5), Property (Chapter 6), Criminal Procedure (Chapter 7), and Criminal Law (Chapter 8).

The selection of cases is spot-on, moving from common grounds to the peculiarities of the U.S. system, and from older to more recent cases, thus offering foundational as well as contemporary applications of critical doctrines in state and federal courts. But, in general, the emphasis is on contemporary cases, allowing teacher and student to move through the materials without the baggage of doctrines that may be less than illuminating.

The book also offers opportunities for scholarly reflections, as on the American Law Institute’s work on the Restatements, the role of dissenting opinions, or scholarly debates on the most current topics, such as electronic formation of contracts or the current impact of Bell Atlantic v. Twombly and Ashcroft v. Iqbal.

Chapter 1, “Introduction to the U.S. Legal System,” is worth highlighting, as it offers information crucial to a complete understanding of the interlocking aspects of the legal system. It is comparative, moving fluidly from the civil law to the common law system. The chapter also explores the U.S. legal system through different angles, including the academic, historical, traditional, and practical. The sources range from ABA materials and federal government publications to articles and lectures by Supreme Court Justices.

Klonoff’s Introduction to the Study of U.S. Law is, without doubt, the best text currently available to introduce foreign students to the study of the U.S. legal system. Moving from Supreme Court cases to lower federal and state court opinions to scholarly articles and current debates to current practice, it offers a panoramic and truthful overview of a system that continues to inspire scholars, lawyers, judges, and legislators all over the world. The author’s knowledge of and sensitivity to a foreigner’s curiosity and his encyclopedic knowledge of U.S. law are evident on every page.

Bringing in the Jury

Oct 24, 2016 Steve VladeckAdd a Comment

From the milk carton graphic on the cover to the blurb by Dallas Mavericks owner Mark Cuban, Suja Thomas’s The Missing American Jury is not your typical, staid academic monograph. Indeed, although neither the punchline nor the stridency will come as a surprise to those familiar with her prior work (including my personal favorite—Why Summary Judgment Is Unconstitutional, an article that spawned an entire symposium), the book is a far more powerful, elegant, and concise explication of her long-held view of the unfortunate (and inappropriate) demise of the criminal, civil, and grand juries in contemporary American litigation. More than that, it is also a call for a systemic restoration of the jury, one grounded in a proper appreciation of the structural constitutional role juries were meant to play vis-à-vis the legislative, executive, and even judicial branches of government.

There is simply no denying Thomas’s descriptive claim. At the Founding, juries decided all but the most minor criminal cases. But by 1962, jury trials accounted for only 8.2% of cases tried in federal court. And by 2013, that number had more than halved, dropping to 3.6%. The numbers in state courts are even more bleak—and, in most cases, come on top of the absence of grand juries. And in civil cases, as will surprise absolutely no one, juries decided only 5.5% of federal cases in 1962—and 0.8% by 2013. There are lots of explanations, obvious and otherwise, for these trends. But whereas conventional narratives of the jury’s demise have emphasized the inefficiency, cost, incompetence, and inaccuracy of the jury, the real culprits, Thomas argues, are each of the branches of government, which have “seized the domain of the jury.” As Thomas explains, “the executive charges, convicts, and sentences, despite juries indicting, sentencing, and convicting in the past. The legislature can set damages, although only the jury historically had that power. The judiciary circumvents juries by resolving cases via mechanisms such as the motion to dismiss, summary judgment, judgment of acquittal, and judgment as a matter of law, procedures nonexistent at our Constitution’s founding.” And all of this is on top of what Thomas consciously excludes from her discussion, the move (sanctioned, if not affirmatively encouraged, by all three branches) toward non-trial settlement—whether through plea bargains in the criminal context or alternative dispute resolution in the civil context.

More than just demonstrating the how and why of the demise of American juries, Thomas’s narrative also (if implicitly) reflects upon the consequences of such a development. These include the possibility that the demise of the civil jury has tilted particular types of litigation against plaintiffs; the rise of non-Article III federal adjudication tied, in many respects, to the absence (or shrinking) of constitutional jury-trial protections; and the more general concern that one of the important checks on abuses by legislatures, prosecutors, and judges has been so diluted so as to no longer be visible as a check.

This last point is the heart of Thomas’s normative claim—that the demise of juries has caused us to lose sight of their structural role in the constitutional system as a check on the very institutions that have been complicit in their demise. And whereas those institutions can usually be trusted zealously to protect their own prerogatives (“ambition must be made to counteract ambition,” as James Madison wrote in Federalist No. 51), Thomas argues that juries have a “unique inability to protect [their] own authority.” In other words, if one views juries as a co-equal structural feature of our constitutional system, they are fundamentally unequal in their ability to respond to real or perceived usurpations of their authority—or lack thereof. And those usurpations have happened through a number of measures designed to transfer decisionmaking power traditionally exercised by juries to legislatures, prosecutors, and judges. Because juries cannot really fight for themselves, other institutions ought to be held to constitutionally grounded limits on their ability to invade—and seize—the historical province of the jury.

Among other things, this leads to Thomas’s arguments about why summary judgment is unconstitutional; why the Grand Jury Indictment Clause of the Fifth Amendment, which has not been incorporated against the states, should be; why judges should not be able to enter judgments of acquittal in criminal cases; and why juries, not judges, must have the power to fix damages under any federal statute authorizing such a remedy. And although much of Thomas’s defense of these restorative moves is grounded in different species of originalism, the book closes with a powerful chapter taking a more comparative look at the contemporary role of lay jurors in other democratic legal systems—a role that, Thomas concludes, is far more powerful than anachronism-based critiques of juries might otherwise suggest. Simply put, Thomas’s proposals may not be as out-of-place with comparative contemporary practice as we might think at first blush.

Of course, Thomas’s proposals will strike many—especially legislators, prosecutors, and judges—as radical. Methinks that’s the point. And I, for one, find the demise of juries to be much more problematic in the criminal context than in civil cases, given the extent to which it tips the scales so much more decisively in one direction (to say nothing of the impact of the demise of the jury-trial right in non-Article III federal courts doctrine).

But Thomas’s book is a thing I like lots not because I agree with every word of it, but because I do not. It is the very best kind of legal scholarship—a narrative that does not force readers to agree, but does force them to think hard about the cause and effect of an undeniable trend and to reach their own conclusion about whether we have lost more than we have gained as a result.