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Monthly Archives: October 2016

Bringing in the Jury

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.

Cite as: Steve Vladeck, Bringing in the Jury, JOTWELL (October 24, 2016) (reviewing Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (2016)),

Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys

Briana Rosenbaum, The RICO Trend in Class Action Warfare, 102 Iowa L. Rev. (forthcoming 2016), available at SSRN.

A racketeer, a mobster, and a plaintiffs’ mass-action attorney walk into a bar. What might be a decent setup for a joke is actually dead serious. Like members of organized crime, plaintiffs’ mass-action attorneys are being sued under the federal Racketeer Influenced and Corrupt Organizations (RICO) statutes. Briana Rosenbaum’s The RICO Trend in Class Action Warfare carefully considers existing remedies for frivolous litigation and critiques what she sees as the inefficacy of “the RICO reprisal.”

Rosenbaum readily admits that some mass-action attorneys include frivolous claims among meritorious ones in an attempt to obtain a larger settlement, otherwise known as “specious claiming.” But Rosenbaum argues that remedies for abusive litigation already exist. There are tort remedies such as malicious prosecution and abuse of process, and procedural remedies such as Fed. R. Civ. P. 11 and 28 U.S.C. § 1927. Rosenbaum posits that this existing remedial structure for vexatious litigants, while imperfect, was at least created with important countervailing policy considerations in mind, such as access to justice and administrative efficiency.

None of these countervailing policy considerations went into crafting RICO as a remedy for abusive litigation. Rosenbaum uses CSX Transportation, Inc. v. Gilkison as a case study to show just how poorly RICO works. CSX is the only known case to go to trial and result in a verdict against the plaintiffs’ attorneys. It arises from asbestos litigation, where it is undisputed that the plaintiffs’ law firm relied on a questionable expert who used controversial diagnostic methods. There is much to say about this case, but for purposes of understanding Rosenbaum’s article, one need know only the bottom line. The asbestos litigation defendants filed a RICO claim against the plaintiffs’ attorneys and demonstrated that eleven out of the 5,300 claims filed, or 0.2%, were baseless. On that evidence, CSX won its RICO claim at a jury trial, leading the parties to settle the case for $7.3 million.

To understand how this happened requires a basic understanding of RICO. First, to win a civil RICO claim, an injured party must prove that the defendant engaged in an enterprise through a pattern of racketeering. The statute provides an exhaustive list of “racketeering activity,” but the most common “predicate offense” in these recent cases against plaintiffs’ attorneys is mail or wire fraud. This criminal act must be shown before there is any civil liability under RICO. In CSX, the court found that every time the plaintiffs’ law firm filed a paper with the court—such as a complaint—or sent correspondence to opposing counsel—such as a letter with a courtesy copy of a mediation request—it committed mail fraud. The court determined that it was not just the eleven fraudulent claims that established a pattern under RICO, but was instead the mass suit itself because the attorneys allegedly used the threat of a mass action that included concealed fraudulent claims to leverage a higher settlement.

CSX is a shocking case that is part of a larger trend of mass-action defendants pursuing plaintiffs’ attorneys through RICO. The CSX numbers and facts are staggering, but perhaps appropriate if the punishment fits the crime. Rosenbaum argues that it does not. Calling on existing critiques of RICO in other contexts, Rosenbaum points out that necessary legal practice activities, such as making phone calls and filing court documents, become potentially criminal. Moreover, successful RICO claims result in treble damages, which inflate what a party would normally recover in a garden-variety malicious prosecution claim. If we are concerned with ensuring that courts remain open to aggregate litigation claims, Rosenbaum argues, RICO is much too powerful a weapon.

Rosenbaum also presents more nuanced arguments about why RICO is a poor regulation tool against frivolous claims. For example, she argues that RICO unnecessarily usurps state-law methods of regulating litigation. After all, RICO’s pleading standards and burden of proof are lighter than a state-law malicious prosecution claim, and the damages are certainly larger. This makes bringing a RICO claim, rather than a state tort claim, something of a no-brainer for defendants seeking a remedy against vexatious aggregate-litigation plaintiffs’ attorneys, which is exactly the problem that Rosenbaum wants to highlight. Perhaps RICO makes it too easy, producing a negative impact on aggregate litigation overall.

Finally, Rosenbaum points out that RICO is at once under- and over-inclusive. It is over-inclusive because it targets the entire mass action as a violation, not just the handful of baseless claims that may be part of that litigation. It is under-inclusive because it addresses only a sliver of the structural challenges aggregate litigation presents. Again, Rosenbaum does not dispute that over-aggregation is a problem, but relying on defendants’ attorneys to regulate plaintiffs’ attorney conduct seems equally problematic.

If RICO is to remain a part of the litigation game, however, Rosenbaum argues it should be reformed. When pure litigation conduct is challenged, courts could require a showing of malicious intent. This would bring RICO in line with existing common law remedies such as malicious prosecution. It also would re-balance access-to-justice concerns. Our system cannot be completely free from frivolous litigation. Indeed, we must tolerate some frivolousness in order to make room for meritorious claims. Moreover, requiring a showing of intent in the RICO context would not leave defendants without any recourse. They could still use existing remedies for pure litigation conduct, and RICO could be reserved for truly egregious litigation schemes.

Perhaps the title of this essay—Racketeers, Mobsters, and Plaintiffs’ Mass-Action Attorneys—made sense to you as a story about three equivalent evildoers. Or perhaps, like me, this group of individuals struck you as incongruent. Regardless of which explanation most speaks to you, you will benefit from reading Rosenbaum’s take on this emerging development in the civil litigation game.

Cite as: Brooke D. Coleman, Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys, JOTWELL (October 12, 2016) (reviewing Briana Rosenbaum, The RICO Trend in Class Action Warfare, 102 Iowa L. Rev. (forthcoming 2016), available at SSRN),