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Monthly Archives: January 2017

Infusing Civil Rulemaking with Economic Theory

Paul Stancil, Substantive Equality and Procedural Justice, Iowa L. Rev. (forthcoming), available at SSRN.

For the most part, civil procedure teachers are dedicated doctrinalists. Nothing wrong in that, especially if well done.

Departing from this norm, Paul Stancil’s Substantive Equality and Procedural Justice is a highly ambitious piece that strives to anchor civil procedure and the rulemaking process in a theoretical construct, largely moored in sophisticated economic analysis.

As such, this piece is part of a subset of academic literature that suggests that the field of civil procedure lacks theoretical heft. Since the enactment of the Federal Rules of Civil Procedure more than seventy-five years ago, intellectually inclined academics periodically have called attention to a lack of “theory” undergirding civil procedure. Typically, this is accompanied by a call for rulemakers to infuse the rulemaking process with the author’s proposed theoretical construct. Stancil’s article is part of this genre; as he states, “Civil procedure has been too long without a theory” – a lacuna he intends to remedy.

In essence, Stancil’s article is a criticism of the foundational transsubstantive norm of the Federal Rules of Civil Procedure, that one set of rules should apply to all cases under all substantive law. Simply stated, he points out that the “homogeneous” nature of the civil case that pervaded rulemaking in 1938 has been rendered inequitable by the reality of “heterogeneous” cases on the modern civil docket. Consequently, the prevailing norm of transsubstantive rules and rigid formal equality fails to promote substantive equality. Each new generation of procedural scholars periodically arises to question the prevailing transsubstantive rulemaking norm. This is an old and recurring debate in the procedural arena.

In advancing his thesis, Stancil first anchors his paper in the scholarly work of other critical academics (Matsuda, Delgado, Crenshaw, and West) who have advanced similar theories arguing that formal equality is not the same as substantive equality. Stancil argues that this same critique should be applied to civil procedure. Surveying historical and theoretical accounts of formal and substantive equality derived from Aristotle, he arrives at a working definition of procedural justice to advance his construct. Stancil extensively relies on the recent scholarly contributions of David Marcus and Larry Solum, whose work centers on grand theories of procedural justice and the transsubstantive norm of the federal rules.

Stancil’s article rehearses an historical account of the origins of the transsubstantive rulemaking norm, the substance-procedure dichotomy in civil procedure, and the federal rulemaking process. He further canvasses the reasons why the transsubstantive norm currently works a substantive unfairness and inequality on litigants.

This discussion lays the groundwork for his proposal that federal civil rulemaking ought to be grounded in economic theories of civil litigation. The nub of his argument states:

For committee rulemakers genuinely committed to the creation of a procedurally just system, the most important moving parts are the merits of the parties’ claims and defenses and the intra-economic incentives that influence parties’ litigation behavior apart from the merits. In very general terms, a procedurally just system will maximize the effects of the parties’ merits positions upon the outcome of litigation, and it will minimize the effects of unrelated economic incentives upon the result.

Expanding on his economic theories, Stancil attempts to demonstrate that formal equality, absent sound economic analysis, leads to disastrous results, citing to recent Supreme Court pleading decisions and the newly amended proportionality rules.

Finally, Stancil concludes his article with a series of recommendations, largely directed at the federal rulemaking process and its constituent committees. He urges rulemakers to adopt an Aristotelian concept of the equality/justice relationship, and to pay careful attention to intra-case economic incentives. Perhaps Stancil’s most striking recommendation is a proposal to create a new federal agency to provide independent economic analysis to rulemaking committees as they undertake their rulemaking functions.

As indicated at the outset, Stancil’s article is a highly ambitious work that attempts, along with a small cohort of procedure scholars, to infuse this arena with “theory.” The article canvasses the work of academics engaged in this same conversation (critical scholars in other disciplines, proceduralists, and law-and-economics scholars), and does a yeoman’s job of setting forth historical context and descriptive material about the rulemaking process. Stancil obviously has leveraged his law-and-economics/antitrust background into his thinking about procedural law. And he offers both a theoretical construct for replacing the transsubstantive rulemaking norm and institutional suggestions for concretely implementing his proposals.

Stancil is writing for the small academic audience that places a high value on “theory” pieces, but he seeks to influence the rulemakers as well. This article is to be admired for its ambition and interdisciplinary approach. In a procedural world largely populated by very good doctrinalists – our dominant mode of scholarship – Stancil seeks to set himself apart as a higher-order thinker and is to be commended for his recommendations.

How this piece might be received by actual rulemakers, however, is another question altogether. For those who have attended rules-committee meetings deliberating on pending rule amendments, I can report that Aristotle does not come up. Indeed, the lack of a “theory of civil procedure” does not come up – which is precisely Stancil’s point. Nonetheless, he argues that these deliberations should be infused with theory to mitigate the deleterious consequences of the prevailing transsubstantive rulemaking norm. Better theory (law-and-economics version), in his view, would result in substantive equality.

Ever the realist, I can only suggest that this not going to happen. Given my understanding of how the federal rulemaking process works, proposals to infuse the rulemaking process with law-and-economics theory, or any other high-level theory (let alone create a new independent federal agency to do this) are unlikely to be adopted in practice.

But it is a case worth making, and Stancil makes it well.

Cite as: Linda S. Mullenix, Infusing Civil Rulemaking with Economic Theory, JOTWELL (January 23, 2017) (reviewing Paul Stancil, Substantive Equality and Procedural Justice, Iowa L. Rev. (forthcoming), available at SSRN),

Comparative Avoidance

I’ll start this essay just as Erin Delaney starts her article—with a shout-out to Alexander Bickel. In The Least Dangerous Branch, Bickel extolled the “passive virtues”—deciding not to decide the merits of contentious constitutional issues—in order to preserve the Supreme Court’s institutional legitimacy in the face of the judicial branch’s “counter-majoritarian difficulty.” Strategic avoidance, the argument goes, can enable further dialogue over such issues, allowing resolution through the political branches rather than through judicial intervention.

As it turns out, the United States is not the only place where the judicial branch holds the title of least dangerous. So it is not surprising that other systems have developed devices by which judicial institutions avoid conflict with coordinate branches of government or with popular opinion more generally. As Delaney puts it: “Avoidance is everywhere.” To be clear, Delaney’s article takes no position on whether this sort of strategic avoidance is normatively desirable or whether courts do, in fact, enhance their legitimacy when they engage in such avoidance. But she argues that this assumption appears to influence the behavior of courts across the globe. Her focus in this article is on strategic avoidance by the Supreme Court of the United States (SCOTUS), the European Court of Human Rights (ECtHR), the Constitutional Court of South Africa (CCSA), and the Supreme Court of Canada (SCC).

Delaney’s analysis of these systems emphasizes two variables that affect how avoidance operates. The first is timing: when during the course of a case does the court make the avoidance decision? Ex ante avoidance occurs before the court weighs in on the substantive merits of a particular issue. In medio avoidance occurs in the midst of the court’s consideration of the case, after the arguments on the merits have been aired but without directly deciding the merits. And ex post avoidance occurs at the remedies phase, after the court has rendered a decision on the merits. The second variable is candor: how openly does the court admit that it is engaging in strategic avoidance? Delaney provides a brief but insightful summary of the costs and benefits of judicial candor, emphasizing the core values of public reason-giving and trust while acknowledging the pragmatic, strategic, and normative considerations that might counsel toward less candor rather than more.

Delaney’s discussion of SCOTUS targets its ex ante methods of avoidance—justiciability doctrines (standing, ripeness, and mootness), as well as the Court’s unique agenda-setting prerogatives that come with the certiorari process. She recognizes, however, that the Court also relies on in medio avoidance (including constitutional avoidance, deference doctrines, and governmental immunities) and ex post avoidance (such as the Court’s “all deliberate speed” remedial instruction in Brown II). With respect to candor, Delaney argues that the Court’s ex ante avoidance methods score quite low. Certiorari denials (as well as DIGs, which dismiss a prior cert grant as “improvidently granted”) are typically accompanied by no explanation at all. In addition, justiciability doctrines (which Bickel might have viewed as paradigmatic tools of strategic avoidance) have developed into independent areas of constitutional law. Delaney uses the Court’s decision in Hollingsworth v. Perry—in which the majority found a lack of Article III standing and therefore did not decide whether bans on same-sex marriage were constitutional—to illustrate how difficult it is to tell whether a particular decision was strategic avoidance or simply “a sincere holding on the standing issue.”

Delaney then turns to the ECtHR, which has jurisdiction over claims by individuals seeking to enforce rights provided by the European Convention on Human Rights. For the ECtHR, ex ante avoidance methods are not generally available because of mandatory jurisdiction. Accordingly, the primary avoidance method is the in medio “margin of appreciation.” This doctrine—although lacking textual support in the Convention itself—gives nations a “margin” within which their regulations will avoid judicial second-guessing. The ECtHR is quite candid with respect to the avoidance function the margin of appreciation performs in the European system. It is only when there is consensus regarding the content of a particular right that the ECtHR will find laws flouting that consensus to exceed the margin of appreciation.

Finally, Delaney details how the CCSA and the SCC rely on ex post methods of avoidance. Like the ECtHR, both courts lack the sort of ex ante tools that are commonly used by SCOTUS. Instead, avoidance comes by limiting or delaying the remedies that will be imposed in the event of a counter-majoritarian ruling. The CCSA is constitutionally required to “declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency,” but the Constitution also grants it the ability to suspend or delay such a declaration of invalidity—and the CCSA has invoked this authority frequently. Canada’s Constitution Act similarly mandates that laws found to be inconsistent with the Constitution “have no force or effect” to the extent of the inconsistency. Although the Act does not explicitly allow the SCC to delay that invalidity in the event of such a finding, delayed declarations of invalidity and legislative remands have become preferred remedies in the Canadian system. As with their European counterparts, the South African and Canadian avoidance tools score well in terms of candor. By ruling on the merits of constitutional claims without ordering a remedy to correct violations, these courts are overtly “self-effacing” about their own “judicial weakness.”

Delaney recognizes that, ultimately, the key normative question is which approaches to timing and candor are most effective in accomplishing the institutional goals that strategic avoidance purports to serve. Although she does not provide a comprehensive proposal, she makes a number of important observations. For example, one downside of the ex ante avoidance methods employed by SCOTUS is that the Court is largely left on the sidelines when it comes to the dialogue that avoidance is supposed to facilitate. As Delaney puts it, the Supreme Court “can only eavesdrop.” The foreign courts’ in medio and ex post avoidance methods allow those courts to participate more directly in that dialogue. However, those methods carry with them the risk that the political branches will openly reject the judiciary’s position regarding the very rights that the courts have been tasked with enforcing.

The global export of Bickelian passive virtues is unlikely to bring the U.S. trade deficit into balance. But it does provide a rich opportunity for exploring comparative-law perspectives on a topic that has long fascinated federal courts scholars. I hope Delaney’s article is just the beginning.

Cite as: Adam N. Steinman, Comparative Avoidance, JOTWELL (January 5, 2017) (reviewing Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1 (2016)),