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Catching and Killing It in Federal Court

Jul 21, 2022 Howard M. WassermanAdd a Comment

Good procedure scholarship identifies, explains, justifies, and critiques a judicial and litigation phenomenon, offering a framework to understand, change, or support what courts, parties, and rulemakers are doing. Great procedure scholarship describes the phenomenon with a pithy and memorable name or metaphor.

Behold Zachary Clopton’s Catch and Kill Jurisdiction.

Clopton draws his framework and label from catch-and-kill journalism, in which a publication purchases exclusive rights to a story for the purpose of not publishing it. The purchaser catches the story by taking it from other publications, then kills it by refusing to put the story out. The move protects the story subject from embarrassment (or worse) and denies the public potentially important information.

A court catches a case by exercising jurisdiction over an apparent state-law claim through a judge-made expansion of jurisdictional rules, keeping the case away from a state court with concurrent jurisdiction. It kills the case by applying unique, often judge-made federal-court doctrines to dismiss the case on non-merits grounds that prevent future litigation of the claim.

Clopton narrows and specifies the details of both elements.

A court catches through judicially created jurisdictional rules or expansive judicial interpretations of jurisdictional statutes, allowing cases to be filed in federal court or removed from state court; the federal court exercises jurisdiction rather than a state court, as the catching publication controls the piece rather than another publication. Courts catch through several doctrines. One is federal common law and federal common law of foreign relations in transnational cases—cases arise under federal law because judge-made federal law, rather than apparent state law, provides the rule of decision. Another is jurisdictional sequencing; the court assumes subject-matter jurisdiction to dismiss cases on other federal procedural grounds. Another involves expansive readings of federal jurisdictional and removal statutes—snap removal (allowing removal of diversity cases before a disqualifying forum defendant is served), federal-officer removal, and complete preemption (a federal statute converts a state common law claim into a federal statutory claim arising under federal law).

A court kills by dismissing in a specific way. Killing requires a non-merits dismissal, rejecting the claim on grounds that would not have applied or produced the same result in state court. Killing requires more than wounding—that a case becomes more difficult for a plaintiff in federal court than state court (e.g., because of heightened pleading requirements) does not mean the case has been killed. Killing means the case cannot—as a legal or practical matter—be refiled and successfully litigated in state court. Courts kill cases by dismissing for forum non conveniens or by abstaining on grounds of international comity; both push litigation to a non-U.S. court. Courts can kill by delaying ruling on a jurisdictional motion (such as a motion to remand to state court), leaving time for settlement or other resolution. And courts kill by rejecting the plaintiff’s claim under federal common law, the most insidious exercise of this power—the court exercises jurisdiction because federal common law or a preempting federal statute provides the rule of decision, then finds no enforceable legal right under federal common law.

Clopton identifies three features that enable the catch-and-kill phenomenon. Federal courts must be willing to expand their jurisdiction and to exercise judicial power, whether generally or out of special concerns for a particular class of case, such as transnational litigation. Federal courts must be hostile to a class of cases or litigants and willing to apply non-merits doctrines to defeat those claims. And Clopton warns of a “catch and kill ratchet,” in which catch-and-kill jurisdiction begets more catch-and-kill jurisdiction. As defendants recognize federal-court hostility to some claims, they push courts to extend jurisdiction to bring those disfavored claims into federal court to be rejected, whether by lobbying Congress to expand jurisdiction or by urging broader interpretations of existing jurisdictional grants. That is, as defendants recognize that federal courts are willing to kill some cases, they push to allow federal courts to catch more of those cases.

Clopton rejects the easy conclusion that this phenomenon must be a negative. Absent agreement on the ideal distribution between state and federal courts, it is impossible to say the expansion of federal jurisdiction or the rejection of these claims is incorrect. A stronger objection rests on concerns for transparency and democratic legitimacy. Catch-and-kill changes substantive policy on important matters—transnational claims and claims regarding climate change—through “diffusion, obscurity, and seeming neutrality.” Rather than Congress, hundreds of lower-court judges apply neutral-sounding procedural rules with different issues in different cases, with a corresponding loss of oversight, public accountability, and even public awareness of actual substantive policy. For example, three lower-court judges may create a catch-and-kill doctrine—one judge creates the catch rule in one case, a second judge creates the kill rule in a second case, and a third judge combines those rules in a third case—each unknown and out of the public eye.

Having described the phenomenon and its defects, Clopton questions who might eliminate the practice and how. Congress, the Supreme Court, and the states can produce wholesale changes, although he doubts any would be willing or effective. He places greater faith in litigants to make lower courts aware of the catch-and-kill problem and of the need to narrow these jurisdictional doctrines or to refuse to apply them in a way that produces kills. By naming this phenomenon, Clopton strengthens those arguments.

Catch-and-kill journalism is a nefarious practice, a way for the worst tabloid journalists to expend vast resources to conceal misconduct of powerful actors from public view, scrutiny, and accountability. Clopton finds and uses the perfect metaphor for a litigation phenomenon—these doctrines protect powerful defendants from seeming liability, through doctrines whose creation, application, and outcome is concealed from public view, scrutiny, and accountability.

Justice As Celebrity

Jun 24, 2022 Lumen N. MulliganAdd a Comment

Following “the Dobbs leak,” I re-read Suzanna Sherry’s Our Kardashian Court (and How to Fix it). The piece is, sadly, prescient in discussing our broken Supreme Court. Her diagnosis of the Court’s dysfunction—cults of personality—rings truer following the leak than any Presidential Commission’s report. Her prescription—statutorily mandating that rulings be communicated in per curiam opinions without concurrences, dissents, or vote counts—rings more achievable than court-packing or its derivations do. Further, her piece—more than any I have grappled with for some time—caused me to reflect more deeply upon what the rule of law means in a profession dominated by legal-realist jurisprudence. I urge you to give this piece a read soon.

It is no secret that the Court suffers from greater legitimacy concerns and internal dysfunction than in the past. Many have proffered structural causes and solutions for these concerns. Sherry argues that we should focus on the celebrity status of the Justices as an important causal factor in these breakdowns. The Court is now “Keeping Up with the Kardashians Justices.” That is the problem, in her view.

And none can doubt the Justices’ celebrity status. Indeed, just this morning I passed the t-shirt store in my Midwestern college town; amidst the snarky jokes, national basketball championship, and KU themed shirts were three different “Notorious RBG” offerings. Three! Sherry captures this growth of celebrity with the following. “Over the last decade, the number of Americans who can name at least one Supreme Court Justice as increased while the number who can name at least one Supreme Court case has decreased.” It is the persona of the Justice, not the law itself, that captures attention.

This explosion of Justice-as-celebrity is not merely correlated with, but is a causal feature of, the Court’s legitimacy concerns in Sherry’s view. As the Justices have become more like “brands,” polls show that 75% of Americans believe that they decide cases on their personal political preferences rather than the law. This phenomenon, Sherry argues, “undermines public confidence in the impartiality of the Court and its Justices.”

The Justice-as-celebrity trend drives judicial dysfunction. Justices write individually to maintain their brand and fanbase. This process, in turn, fosters judicial polarization, because to “the extent that the Justices are engaged in public debates (whether through their separate opinions or otherwise), they may be reluctant to engage in internal deliberation.” Moreover, it creates disincentives to compromise. “Compromise is off the table because while it enhances the institutional reputation of the Court, it weakens the individual reputations of the Justices. Celebrity status makes it in the best interests of all the Justices to act like independent contractors competing for business by advertising the purity of their brand. Dysfunctionality is inevitable.”

Sherry’s solution is bold in its modesty. Congress should take away the Justices’ official publicity machines. “Congress should enact the following into law: For each case, the Court must issue one, and only one, per curiam opinion. No attribution, no concurrences or dissents permitted. No one outside the Supreme Court would know who wrote the opinion or whether the vote was unanimous, five to four, or anything in between.”

Sherry identifies numerous benefits. It would enhance the public perception of the Court as an institutional actor, with citizens seeing it as responding to law and not personal political preferences. It would push the Justices to focus more on doctrinal coherence than maintenance of their personal jurisprudential brands. It would remove the official, government-funded forum for Justices to cultivate their fan bases via concurring and dissenting opinions. It would reduce the number of cases without a majority opinion. And it would foster more cooperation and collaboration among the Justices—even those nominated by presidents of differing parties.

As you might expect from a scholar of Sherry’s skill, she considers and rebuts a host of possible objections—that her per curiam approach will produce minimalist opinions, that it suffers constitutional infirmities, and that it is impractical. Two concerns—leaks and the effects of legal realism on the Court’s legitimacy—warrant special attention.

Sherry considers that the quest for celebrity status may push Justices to leak information, especially if they were forced to operate under her proposed per curiam regime. “My proposal may well give rise to a temptation for Justices to play to their fans and burnish their political credentials by announcing to the world both their own vote and, where the vote was close, the actual vote count.” As we now know, we did not need her proposal to cause leaks. The incentives are already in the system. But why?

Of all the ruminations for what was to be gained, and by whom, from the Dobbs leak, Sherry’s Justice-as-celebrity theory offers the best explanation. Here, states the leaker, is the uncompromised, unsullied Justice’s product—check it out, it’s fully on brand! No matter the final product, the leak-reader knows what the majority author truly thinks. And, as Sherry predicted, this quest for individual brand purity came at an extreme cost to the institution as a whole.

As for legal realism, we no longer conceive of judges discovering the law as if it were a brooding omnipresence in sky, as Holmes deridingly put it. We are all legal realists now, as it were, and we understand that (especially in hard cases) it matters who the judge is. As a civil-rights plaintiff, I want a judge who has a plaintiff’s brand and vice versa. Justice-as-celebrity, with its concomitant concurrences and dissents, reflects that law (at least in hard cases) is indeterminate.  This practice of branding one’s opinions, from this perspective, has the virtue of transparency. The Justice-as-celebrity approach tells citizens that any ruling was not logically derived from immutable principles, but that different judges with different brands view cases differently.  Hiding behind a patina of per curiam decisions is inauthentic at best, assuming the accuracy of legal realist jurisprudence.

Sherry’s response to this concern invites deep reflection. “I can see the point,” she replies. One can hardly claim “that forcing a pretense of unanimity where none exists is unproblematic.” But the “pendulum of academic and public opinion has swung so far toward the realist view that there is scarcely any room for an argument that law, even as made by the Supreme Court, is about more than raw political or ideological preferences.” Because the nation must believe that the Court’s decisions are based, at least in part, on precedent, principle, and legal reasoning, “[s]uppressing dissents and concurrences is a necessary corrective.” Our commitment to rule of law, as I read her argument, depends upon a broad-based belief that decisions depend on legal norms—even if that is not entirely accurate in the hard cases. “Perhaps when the pendulum swings back, we will need full transparency again.” But until such time, Sherry recommends that authentic legal-realist discussions stay in law reviews—safe from public scrutiny.

Sherry’s argument leaves me thinking—which is a good thing! On the one hand, her position reminds me of Plato’s Noble Lie, which is supposed to establish for the hoi polloi the legitimacy of the guardian’s political supremacy in Plato’s ideal republic. Or, if you prefer, her position is akin to announcing that “you can’t handle the truth.” On the other hand, I think she is right.  Radical judicial process transparency, coupled with a celebrity culture and digital media, seems to degrade our commitment to rule of law. This is a hard truth for me to sit with. But what a gift to have Sherry push me to reckon with it.

Endangered Claims: How the U.S. Civil Procedure System Mimics the Wild

Jun 10, 2022 Suzette M. MalveauxAdd a Comment

This season I was captured by an article offering a new lens to analyze the precarious state of consumer, employment discrimination, civil rights, and other substantive claims in the U.S. civil litigation system.  Brooke Coleman’s Endangered Claims reminds the reader to consider how such rights—increasingly vulnerable to obstructionist policies and decisions by the federal rule makers, the Supreme Court, and Congress—fare in an ecosystem that favors the privileged. Coleman analogizes claims and claimants in the court system to endangered species who must adapt, migrate, or suffer extinction in a Darwinian world driven by “survival of the fittest.” She illustrates how a system titled “civil” is hardly that, looking more like a brutal story of evolution where the strong devour the weak and the latter must adapt or die.

The analogy reveals that the values underlying much of modern procedural reform prefer parties with greater power and money, are anchored in a restrictive rather than liberal ethos, and undermine court access and promotion of meritorious claims—the primary goals justifying the Federal Rules of Civil Procedure in 1938. Coleman challenges policymakers to consider the effect of procedural rules and doctrine on “endangered” claims, as a conservationist would consider the effect of environmental policies on endangered species.

Coleman provides persuasive examples of the “evolution story of federal civil litigation.” She describes a landscape littered with adaptation, migration, and extinction of claims since the Federal Rules’ inception in 1938. This evolution winds its way through heightened pleadings, limited discovery, robust summary judgment, punitive Rule 11, increased judicial case management, and disappearing jury trials. For example, parties and attorneys have adapted by using multi-district litigation (MDLs) to aggregate claims when class certification barriers were too high and by lobbying the rule makers to change the discovery rules to include a proportionality requirement when discovery was too expensive and burdensome. These litigants and lawyers with power and resources (on both sides of the “v”) have adapted within and without the court system in order for their claims to survive. Repeat players have found work-arounds to maintain court access and control.

Similarly, Coleman offers compelling examples of migration. For example, defendants have migrated to arbitration via mandatory, pre-dispute arbitration clauses that have proliferated in all manner of contracts and garnered unwavering support from the Supreme Court over the last fifty years. Plaintiffs, on the other hand, have migrated to state courts and federal agencies to keep their claims alive.

Those who have not succeeded at adapting or migrating have faced extinction. Coleman states the cold reality: “[A]s with evolution, not everyone can make it. The most vulnerable parties with endangered claims are now extinct.” (P. 386). A notable example involves plaintiffs with civil rights and small consumer claims who could not scale the higher pleadings wall under Twombly and Iqbal, survive the Supreme Court’s rigorous Celotex summary judgment trilogy, or act collectively because of class action bans in mandatory arbitration agreements post-Concepcion and Italian Colors. The proliferation of class arbitration bans in consumer and employment contracts has killed claims altogether in any forum. Plaintiffs (such as some DoorDash workers) with sophisticated and well-resourced counsel have tried to adapt by bringing mass individual arbitration filings, with varied success. But for the most part, “defendants—with the blessing of the Court—managed to disappear a large number of cases not just from the federal court system, but from the universe. For many plaintiffs, defendants’ migration to arbitration has meant not just endangerment, but extinction.” (P. 382.)

The article makes important concessions. One is that litigant adaptation is not new. Another is that procedure is one of a number of influencers killing substantive rights. Moreover, there is nothing “natural” about this evolution. This ecosystem does not develop in a vacuum; “[h]uman interference changes this natural development.” (P. 390.) One might go further and say that humans are not an interference, but an integral part of this natural development. In any event, Coleman questions Darwin’s “natural selection” theory and characterizes the “survival of the fittest” model as “perverse.” The analogy is descriptive, not aspirational.

After establishing that the strongest survive in the world of civil litigation as well—a phenomenon that promotes corruption, replicates homogeneity, and undermines the legitimacy of the federal justice system—Coleman pivots to the important question of what policymakers (including rule makers, Congress, and the Supreme Court) should do now. She argues that policymakers have taken a primarily reactive posture to procedural reform. Some might find that framing too generous; for example, the Supreme Court’s extensive pro-arbitration jurisprudence and interpretation of the Federal Arbitration Act is “an edifice of its own creation.” Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 283 (1995) (O’ Connor, J., concurring).

Coleman urges policymakers to take a page out of the Endangered Species Act, offering an Endangered-Claims-Act framework for procedural reform. Policymakers should focus on protecting endangered claims  rather than protecting powerful parties. This requires gathering systemic data and proactively studying the effect of procedural reform on claim survival, something more easily done through the public court system than private non-transparent alternative fora. Coleman describes this shift as one in unit selection: the claim, not the party, measures the success of procedural reform. This subtle shift is significant, as it questions the anchor principle of trans-substantivity; a claim-driven analysis shows that perhaps not all claims should be treated alike.

The article ends by testing this hypothesis in the COVID world. Technological advances to court access proliferated during COVID, when the powerful needed such adaptations. A party-driven system that favors those with resources and power led to innovations that economically marginalized and person with disabilities long had sought. An Endangered-Claims-Act analysis would examine how civil justice reform affects the least powerful and the most vulnerable claims, with the goal of protecting those that are meritorious but left behind.

This is a creative and thoughtful piece about the evolution of the civil justice system. The analogy between endangered claims and endangered species offers a new lens through which to think about how substantive rights and litigants are treated in the U.S. and how civil reform policymakers should lead. Coleman helps the reader appreciate the inequities in our justice system and challenges us go deeper in our understanding of our fragile democracy.

Discovery in State Courts

May 27, 2022 Jay TidmarshAdd a Comment

Because 98% of civil litigation occurs in state court, we procedure scholars can be criticized for our myopic focus on procedures in federal courts. An emerging body of scholarship is adjusting that perspective by telling us much more about what is occurring in state courts — and it is eye-opening. To pick a few examples, Pamela Bookman and Colleen Shanahan (reviewed here) have shown how, in contrast to “lawyered” federal courts, state courts are often “lawyerless courts” where at least one party is unrepresented. Daniel Wilf–Townsend samples state-court dockets and uncovers, among other nuggets, that ten corporations account for an astounding 24% of the 16 million annual state-court filings. If we are concerned about access to justice, we should heed the advice of Anna Carpenter, Jessica Steinberg, Colleen Shanahan, and Alyx Mark to do more empirical research and more theoretical analysis about the roles of lawyers and judges in the fluid and evolving world of state-court litigation.

Diego Zambrano takes on one piece of this task by exploring how discovery operates in state courts. Zambrano has become a distinctive voice on discovery. He has proposed seeing it as a regulatory tool (in contrast to the usual view that it is meant to aid in the accurate and fair adjudication or settlement of individual cases). His co-authored piece on the myriad ways in which parties can poison the well of technology-assisted review is required reading for anyone who hopes that artificial intelligence will harness and solve the problems of discovery in document-intensive litigation. In Missing Discovery, Zambrano examines how discovery plays out in some of the largest categories of state-court litigation, in which individual litigants are likely unrepresented: small-claims and debt-collection cases, landlord-tenant disputes, family matters, and appeals from agency decisions in areas such as workers’ comp or unemployment insurance.

The article’s first, descriptive contribution maps states’ widely disparate approaches to permitting discovery in these cases. At the federal level, of course, discovery is in theory available in every case (although empirical studies show that, in practice, a substantial minority of cases involve little to no discovery). Federal discovery is uniform and trans-substantive: neither the substance of the dispute nor the amount in controversy disqualifies a case from access to the capacious tools of federal discovery. Not so at the state level. Zambrano focuses on seven states (California, Florida, Massachusetts, Michigan, New York, Pennsylvania, and Texas) whose formal discovery processes diverge from the federal model, documenting how the discovery procedures in the three categories of cases vary state to state and even within a state, depending on the nature of the case. For instance, most state courts allow no discovery in small-claims cases, while a couple do, and others allow at least a judicially led inquiry into the facts. Likewise, three states deny discovery in eviction proceedings but four allow them. When discovery is allowed, the available methods vary from limited subpoenas to the full panoply of discovery tools.

As Zambrano shows, some impulses behind restricting discovery are understandable. Unrepresented parties are probably unable to afford discovery, so a better-financed party can wield that discovery as a cudgel. Discovery is also complex, and unrepresented parties are not likely to be successful in navigating those complexities. And discovery adds a measure of delay. Balanced against these justifications for “missing discovery” are the costs of denying parties access to information—decreased accuracy, a diminished sense of participation and fairness, and a greater incentive for repeat players to engage in unlawful behavior on which discovery would have shone a bright light.

Zambrano’s second, anormative contribution analyzes whether the lack of discovery in mostly lawyerless courts is suboptimal. He concludes that it is. Seeking a “sweet spot” between no discovery and full discovery, he develops three design principles — imposing discovery only on sophisticated parties, requiring discovery only from parties who possess “actually relevant” information, and expanding discovery to its full scope only when the alleged wrongdoing has broader significance than the dispute between the parties. He cashes out those principles into a concrete “open file” proposal that operates somewhat like a prosecutor’s Brady disclosures on the criminal side—sophisticated parties such as landlords or debt-collection companies must deposit all relevant documents into a publicly available file.

Zambrano admits that “unlawyered” parties might be unable to make good use of this evidence, as they lack the legal knowledge and sophistication to appreciate the significance of much of the disclosed information. He hopes that public disclosure of this information will have a positive regulatory effect on repeat players. Debt collectors and landlords might reform their dubious practices rather than distribute information about those practices into the public arena, where the little guys fortunate enough to have legal representation might could use damaging disclosures. It is in “the shadows of litigation,” as Zambrano puts it, where an open-file approach might see its greatest effect. This open-file approach links back to Zambrano’s broader view of discovery as a regulatory measure.

Having proposed both direct and incentive-based means to thread the needle between excessive and insufficient discovery, I find a great deal to admire in Zambrano’s design principles and his open-file proposal, as well as his idea of using state courts as laboratories to build a better discovery mousetrap than the one in the Federal Rules. Nonetheless, given that Zambrano predicts modest increases in accuracy of dispute resolution, the case for an open-file system comes down to the uncertain strength of the expected regulatory effect. And that uncertainty wraps into the broader question of whether “discovery as regulation” is the right way to think about discovery in general and one-way mandatory public disclosures in particular.

Perhaps the principal take-aways in the emerging literature on state-court procedure are the prevalence of unrepresented parties and the willingness of sophisticated repeat players to design litigation strategies to take advantage of a lawyerless opponent. Frederick Wilmot–Smith’s important Equal Justice argues convincingly that a true commitment to equal justice requires a radical reinvention how societies allocate legal services among presently lawyered and presently unlawyered parties. Requiring repeat players in state courts to disclose information on a mandatory and public basis renders unjust systems less unjust. But that is not the same as making those systems just.

Data-Driven Procedural Inequality

May 13, 2022 Brooke D. ColemanAdd a Comment

Data is all the fashion, not just in the legal academy and other academic disciplines, but in our daily lives. We have been glued to COVID-19 statistics to make decisions about whether to wear masks, send our kids to school, or take that rescheduled trip. While these graphs and statistics have been helpful, they have not been without controversy. The pandemic has brought into full relief how data can be manipulated, misunderstood, and even misleading.

Danya Reda’s Producing Procedural Inequality Through the Empirical Turn questions and critiques how data is gathered and used in another important context—the federal civil rulemaking process. Reda’s prior work has contributed to how we think about the civil justice system and the rules that govern it. She has shown that elite lawyers and judges constructed and marshalled a cost-and-delay narrative that affects the civil rulemaking process. She has interrogated the effect of casting the rulemaking process as political. In this article, Reda takes her critique a step further by arguing that the rulemakers’ attempts at neutrality—and their attempts to keep the process “neutral” using data—distort the rulemaking process and deepen systemic inequality.

Reda takes aim at the concept of neutrality in the civil justice system. The problem with anchoring the rulemaking process in neutrality is two-fold. First, the Federal Rules of Civil Procedure intervene in a system already structured unequally by law. The parties’ positionality, the law governing the dispute, and the decisionmakers—both judge and jury—are far from neutral. Second, decisions about what rules should govern are contested, meaning different views persist about how the rules should function. That, in and of itself, demonstrates that the rules can never be neutral. Any decision about the rules is necessarily normative, informed by value judgments and insights.

I, and others, have questioned how the rulemaking committee members’ ideologies, identities, and litigation experience affect the committee’s procedural reforms. Because those reforms are often cast as out of step with the realities of litigation and skewed in favor of organizational defendant interests, this scholarship can create an impression that committee members’ actions are deeply purposeful, maybe even nefarious. Reda’s article takes a broader, balanced view of why the committee members make their decisions. Her explanation—while not minimizing the effects of identity, ideology, and litigation experience on member behavior—asks us to think about the ways in which the “who” of the committee member intersects with the “how.” That “how” requires us to think about the rulemaking process and the committee’s fidelity to empirical data.

Reda does not argue that empirical data is useless, but that the way the committee uses data is problematic. The committee’s definition of empirical is unclear and often includes information that should not be categorized as such. Because of this “category error,” the committee will rely on information that is not empirical, at least for the committee’s stated purpose. When the committee has empirical information, it misapplies it. By not understanding what the information means, the committee’s work is not data-informed. Finally, because the committee believes it is using empirical data properly, it fails to utilize other potentially useful and productive empirical information that could inform and improve its decisionmaking.

To demonstrate how misusing empirical information has hampered the committee’s work, Reda pored over rulemaking records, including those regarding the 2010 Duke Civil Litigation Conference in which the committee endeavored to anchor its work in an “empirical foundation.” The Duke Conference led to the controversial 2015 discovery amendments, which the committee celebrated as data driven. Yet Reda shows that category error, misinterpretation, and missed opportunity plagued the conference and the ensuing rulemaking process.

From the outset, the committee failed to identify useful empirical information. It called for data, but it received general attorney-perception survey results. The lone exception was a Federal Judicial Center closed case study, which connected the surveys to the particular case the attorney had litigated. Despite the differences in the quality of the information, the committee lumped it all together as empirical.

Building on the lack of categorization, the committee misinterpreted the data. Reda shows that the committee interpreted the survey data and the case study data as conflicting. In fact, the survey information revealed that attorneys believed discovery was too expensive while the closed case study showed that most discovery was not outsized. The committee interpreted this as showing that discovery worked well in most cases, but not in a subset of cases. This interpretive error had significant consequences for discovery reform. As experts pointed out during the conference, and as Reda reinforces in her article, the general perception surveys reflect impressions resulting from cognitive biases. Survey respondents naturally focused on the most extreme cases they could recall. The closed case study, by contrast, reflected a more accurate picture of how discovery worked on the ground.

Finally, in the name of neutrality, the committee missed useful empirical data. Committee members resisted hearing practitioners explain how a rule change might benefit particular clients. They defined generalized impressionistic survey data as impartial, but specific, contextual attorney feedback as biased. Reda explains that the opposite is true. Generalized data is less useful and quite biased. Had the committee sought out practitioners and asked them to identify how the discovery proportionality rule might operate in a particular case, the committee could have received a complete picture of what the proposed rule change might do.

In other words, accepting that ours is an adversarial system, Reda argues that the committee should hear from advocates regarding how a rule operates for their clients. Yet commitments to neutrality prevent committee members from gathering the very information that would better inform their work. The rulemaking process further entrenches existing inequalities because committee members do not grapple with the value judgments and biases they impose on the rules. Producing Procedural Inequality deftly shows that the neutrality of the rules is a myth and that the committee process should reflect the same. Reda does not blame committee members, but argues they need better resources and assistance in understanding what is before them. Committee members necessarily design rules that will affect the outcomes of cases. This is a heady task for sure, but hardly a neutral one.

Talking the Talk to Walk the Walk

Apr 19, 2022 Sergio J. CamposAdd a Comment

“Staffers, staffers, staffers.” That is the number one rule of congressional testimony. To provide some context: U.S. senators and representatives are elected to represent large constituencies with diverse and often conflicting interests. To respond to constituent concerns, Congresspersons rely upon their staff to help them understand complex issues. The key in congressional testimony is not to convince the Congressperson but the staffers of the rightness of your position. It is advice that proceduralists like me appreciate.

Myriam Gilles is adept at talking to staffers, as demonstrated by two examples of her submitted congressional testimony that I like lots. The first (“Justice Restored”) concerns the Forced Arbitration Injustice Repeal (“FAIR”) Act, a house bill that would prohibit forced arbitration in a number of consumer and employment settings. The second (“Silenced”) concerns the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which recently became law and prohibits arbitration agreements involving claims of sexual assault or sexual harassment.

Gilles is a perfect choice to provide these congressional testimonies. She writes in the field of class actions and complex litigation and expresses complex issues clearly, precisely, and with great vividness. Her titles are legendary:

• The Day Doctrine Died: Private Arbitration and the End of Law;
• Killing Them With Kindness: Examining “Consumer-Friendly” Arbitration Clauses After AT&T Mobility Concepcion;
• Class Dismissed: Contemporary Judicial Hostility to Class Certification

As one can tell from these titles, one focus of Gilles’s scholarship has been arbitration, in particular arbitration clauses prohibiting the use of class action and similar aggregate procedures. Gilles has been writing about “class action waivers” since 2005, when she predicted that such clauses would lead to the “near-total demise of the modern class action.” Beginning in 2009, the Supreme Court decided a series of cases, most notably AT&T Mobility v. Concepcion, holding not only that class action waivers were enforceable, but that class action procedures were in conflict with the policy of “bilateral arbitration” reflected in the Federal Arbitration Act (“FAA”). Gilles, much to her dismay, proved prophetic.

The Court’s position has some intuitive appeal. Arbitration is a process that allows parties to opt out of formal judicial procedures and resolve disputes using a private arbitrator. Arbitration procedures often are simpler, cheaper, and faster. It is hard to square the simplicity of arbitration with the complexity of class action procedures that allow one representative to litigate on behalf of many.

Gilles’s work reveals the fallacy of that position. Not only are class actions cheaper, faster, and better, but without class actions many plaintiffs would not file suit at all, either in a court or an arbitration. Class actions allow a representative party to pool resources and invest in litigation that would not make sense on a plaintiff-by-plaintiff basis. Defendants know this, which is why, to borrow Gilles’s words, class waivers are “nothing more than a ‘get out of jail free’ card for companies.” Even in settings where class action procedures are not necessary, defendants can write arbitration clauses with procedures that are so one-sided that they can “write their own accountability-avoiding rules at the expense of American workers.”

Of course, Gilles cannot submit 16 years of law review articles to the committees; that would be too much to ask of any staffer. Instead, in the two examples that I like lots, Gilles condenses her work into two short, crisp, letters, each serving as “submitted testimony,” that provide an overview of her work in a way that addresses the committees’ concerns.

Justice Restored provides a short overview of the Supreme Court’s expansive interpretation of the FAA and how it has led to the proliferation of arbitration clauses in consumer and employment contracts. Like an experienced litigator, she provides vivid evidence of the effects of these forced arbitration clauses. In 2018, out of an estimated 826 million consumer arbitration provisions in force, the two largest arbitration providers resolve approximately 6,000 arbitrations (only 6,000!). About 52% of private-sector, non-union workers (about 60.1 million workers total) are subject to arbitration of employment disputes, but an estimated 1 in 10,400 workers pursues any arbitration claim. The high use of arbitration clauses combined with the paltry numbers of actual arbitrations supports Gilles’ thesis that arbitration clauses allow defendants to escape liability.

Silenced focuses on the lack of transparency in the few arbitrations that plaintiffs do pursue. The offending provisions include nondisclosure provisions that require the arbitration to be conducted “in utter secrecy.” For claims involving sexual assault or sexual harassment, defendants use arbitration clauses less to divide and conquer plaintiffs than to hide the offending conduct from the public. The lack of transparency can and does lead to systematic bias against victims in arbitration awards.

In Silenced, Gilles further shows the necessity of federal legislation by discussing the limits of alternative avenues of challenging forced arbitration – state legislation and public pressure. State legislation runs into preemption, as the Court has interpreted the FAA so expansively that it would preempt state law attempts to curb forced arbitration. Public pressure may work for the most powerful and well-off workers, who can lobby against arbitration clauses in their own contracts. But it leaves the least-well-off workers the most vulnerable. I found these sections particularly compelling, as I could imagine a staffer feeling a renewed sense of urgency in the need for legislation.

I have written in previous jots about my love for scholarship that focuses on the how – how to change law, how to improve things on the ground. I commend Gilles for her mastery of putting her scholarship into action, to ensuring that her important contributions to legal scholarship are understood by individuals who can do something about the problems she exposes. Many legal scholars participate in this kind of work, through amicus briefs, legislative testimony, service on law-reform projects, and other efforts. These efforts should be celebrated because they prove again and again the value and importance of legal scholarship.