Category Archives: Uncategorized
Mar 10, 2023 Fred O. Smith, Jr.
Here is the puzzle. On one hand, various species of originalism have ostensibly come to dominate American constitutional law. “We are all originalists,” Justice Elena Kagan contended during her 2010 confirmation hearings. “Is originalism our law?” William Baude asked in widely cited 2015 Columbia Law Review article. (His answer was a qualified and nuanced “yes.”) And in the last couple of years, originalism at the Supreme Court has become broad and deep. Broad, in that originalist arguments have proven resistant to countervailing methodological tools such as precedent or even text, allowing originalist arguments to prevail in a wider range of constitutional settings. Deep, in that on issues such as gun rights, the Court has demanded more and more in the way of precise historical analogies from the Founding (or the Second Founding).
On the other hand, Mila Sohoni observes that despite originalism’s rise, one area has been mostly absent from originalism’s reach—procedure. Sohoni focuses on a body of law she terms “constitutional civil procedure,” explaining that a number of important questions in civil procedure turn on interpretations and constructions of constitutional text. Sohoni cabins her analysis to constitutional doctrines that tend to be taught in civil procedure as opposed to courses on constitutional law, federal courts, or remedies. Originalism has barely touched core questions of civil procedure. “It would be tempting to say that all this has been hidden in plain view, but that would only be a half-truth. Civil procedure’s nonoriginalism hasn’t been hidden at all. And yet—until recently—few originalists have faulted procedural law for its infidelity to original meaning.” (P. 992.)
Sohoni offers numerous examples; consider three.
First, is Washington, D.C. a “state” for purposes of diversity jurisdiction in Article III, which permits suits “between citizens of different States?” Hepburn & Dundas v. Ellzey said no in 1805. Writing for the Court, Chief Justice Marshall acknowledged that not treating citizens of the District of Columbia as citizens of a state produced an odd and perhaps undesirable set of consequences. More than a century later, in a fractured set of opinions, National Mutual Insurance Co. v. Tidewater Transfer Co., said they are, assigning greater weight to these consequences. Sohoni observes that this “outcome—the continued allowance of diversity jurisdiction to D.C. citizens—is pragmatic. It is reasonable. It is fair. It is just not originalist.” (P. 977.)
Second, are corporations “citizens” for suits between citizens of different states? Corporations rely on this head of jurisdiction to sue (and be sued) in federal court. Sohoni shows, however, that treating corporations as “citizens” is incompatible with early cases such as Bank of the United States v. Deveaux, where “Chief Justice Marshall explained that a corporation was an ‘invisible, intangible, and artificial being’ and ‘certainly not a citizen.’” (P. 979.) Deveaux required federal courts to look to the citizenship of a corporation’s shareholders when deciding whether diversity jurisdiction was permissible. When paired with a complete diversity requirement, however, that approach created a mess. The Court in Louisville, Cincinnati & Charles R. Co. v. Letson and Marshall v. Baltimore & Ohio Railroad Co. opted for pragmatism over historicism, allowing corporations to be treated as citizens for the purposes of diversity jurisdiction. Sohoni accordingly concludes: “Treating corporations as citizens in diversity can claim on its behalf a slew of pragmatic benefits. What it cannot claim is fidelity to original meaning.” (P. 982.)
Third, as a matter of due process under the Fifth and Fourteenth Amendments, what contacts must a defendant have with a state before a plaintiff can hale him into courts in that state? The doctrine turns on broad appeals to “fair play and substantial justice” rather than deep historicism. In some areas, the Court has expressly rejected history in favor of fairness and pragmatism. Shaffer v. Heitner refused to allow a court to attach a defendant’s property within a forum for claims unrelated to that property. Such attachment was “an ancient form without substantial modern justification,” and “continued acceptance” of it “would serve only to allow state-court jurisdiction that is fundamentally unfair to the defendant.” (Pp. 986-87.)
Collectively, these examples show that “rather than copying its content solely from evidence of original meaning, the law of civil procedure has drawn its substance from pragmatism and policy; from the impetus of changing times, technology, and philosophies; from values such as fairness; and from simple common sense.” (P. 992.) Procedural law’s nonoriginalism may “provide a particularly vivid example of how in the face of old enough reasons or good enough reasons, and in the absence of any political pushback one way or the other, claims to the primacy of original meaning simply are not very compelling.” (P. 992.)
Sohoni identifies evidence that the Court may soon confront, and perhaps close, the gap between originalism and constitutional civil procedure. Justice Thomas’s dissent in Liu v S.E.C. questioned the absence of an originalist foundation of disgorgement remedies. Justice Gorsuch’s concurrence in Ford Motor Co. v. Montana Eighth Judicial District Court questioned the Court’s markedly non-originalist approach to personal jurisdiction. Parties and amici emphasize originalist arguments in Mallory v. Norfolk Southern Railway Co., a pending case about the constitutionality of a Pennsylvania statute that requires a corporation to consent to personal jurisdiction before doing business in the state.
Sohoni argues that this looming confrontation between doctrine and history may enrich debates about the efficacy and proper scope of originalism. The approach the Court takes in cases such as Mallory may offer lessons about: whether originalist arguments have the most force in the ideologically charged spaces that are aligned with the conservative legal movement; whether or when precedent and stare decisis are more compelling than originalism; and the degree to which originalism operates as a constraint on judicial discretion. When interpreting the due process clauses, for example, will originalism prevail when it serves to further subordinate the historically marginalized groups who had little public voice at the Founding, while non-originalist approaches reign when they better serve oligarchic ends? Time will tell. But we should take up Sohoni’s invitation to watch closely in our appeals to and appraisals of the Court.
Feb 24, 2023 Suja A. Thomas
They do justice differently in the UK. Although the United States based its constitutional right to a jury trial on the right in England, the right to a jury trial no longer exists in England in most civil cases including employment discrimination cases. For employment discrimination disputes, a three-person panel consisting of a judge, a lay person from the employee side and a lay person from the employer side decide the matter. The Tribunal decisions are published in an online searchable repository. This database is the subject of this excellent article, which examines the reason for and problems with such a publicly available searchable vehicle. In addition to giving us the opportunity to learn about this database, the article also leads us to compare the present US system to the UK’s.
The authors recognize that the rule of law there requires open justice, which in turn compels publication of judgments. This is also compelled by statute and related to the common law right of access to the courts. For over five years, Employment Tribunal decisions from England, Scotland, and Wales have been published online and thus been easily accessible to the public including employers. The database has been accessed by, among others, researchers and private companies.
The article poses the question of the extent to which data about judgments should be published. Most importantly, should names be published? The authors point out that elsewhere in Europe, using anonymous information is the usual practice. They emphasize that while the publication of judgments helps ensure access to justice, employers could use names found in judgments to exclude those individuals from jobs. Employees could also be discouraged from bringing claims because such information could be available and used against them in the future. The information could also affect future settlement negotiations with information that may not be complete.
The authors also describe issues with the database, including that all judgments are not published. Because of this, the accessed cases may not be representative of all of the cases. As a result, the database can skew studies, advice to employees, recommendations made to employers and negotiations between parties.
The existence of the database also creates general artificial intelligence (AI) concerns. AI can generate information from the database that can be used against employees, such as predictions on the characteristics of people who bring lawsuits against employers.
The authors go on to analyze whether the current law can adequately protect against abuses of the database. They conclude it cannot and argue for changes to the law. I mention two here. First, they recommend that the names of all parties should not be included. The exclusion of claimants’ names will prevent employers from discriminating on this basis. I do note one possible issue with anonymizing defendants’ names. Without the publication of this information, employers can commit violations that are shielded from easy view. With that said, Tribunal hearings are generally open to the public so there is some opportunity for public viewing of cases and accountability for employers. In addition to the recommendation of excluding names from publication, the authors recommend that employers be prohibited from taking into account an employee’s litigation history.
This study elicits some interesting comparisons between the UK and the US. While there is increasing public access to many employment decisions online in the US, the readily available one-stop shop in the UK is not comparable to what we have in the US. And however useful such a mechanism could be here in the United States, because the US does not utilize Employment Tribunals and instead uses widely dispersed federal and state courts, the creation of such a database would be more difficult in the US to say the least. Additionally, in the US, because over 50% of employment disputes are subject to arbitration, many employment decisions are not published in any form. Comparing the more transparent UK system to ours highlights some of the controversial issues in our own system, including forced arbitration in employment cases.
Feb 10, 2023 Jasminka Kalajdzic
The digital revolution has compelled us to review, and at times rethink, important parts of our law. From gig workers to social media, artificial intelligence to self-driving cars, technological advancements have resisted the mechanical application of rules developed in the pre-digital age. Copyright law offers one example. As digital aggregation technologies enable the reproduction of millions of copyrighted works, they test law’s capacity to define, address, and compensate for infringements – as a matter of both doctrine and procedure.
Enter the class action device. Although copyright scholars have debated how law should evolve to address new technological uses, Xiyin Tang may be the first to suggest that copyright class actions can achieve by private ordering what has eluded legislators. The Class Action as Licensing and Reform Device argues that copyright class actions have effected advancements in copyright law and will continue to play an increasingly important role in licensing and reform.
Tang analyzes fifty years of copyright class actions to make the point that this form of litigation can efficiently address the millions of copyright right claims involving streaming services, a feat that neither the market, the regulator, specialized courts, nor Congress could achieve on their own. In mounting this argument, Tang makes the provocative claim that these class actions are doing something quite different from typical mass-tort, discrimination, and consumer class actions – compensating for injuries defined by existing law and updating the law by filling the gaps exposed by new technology. Both legal proceduralists and copyright scholars should take note.
Tang begins by discussing how new technologies fail to fit old copyright paradigms. Simply put, it is impossible for digital aggregation technologies, such as Google and Spotify, to obtain permission from the thousands of individual copyright holders to reproduce their works legally. The alternatives fare no better. The Copyright Office, an anachronistic regulatory solution to a modern problem, cannot sustain its work-by-work licensing model in the face of large streaming platforms. Market solutions such as collective rights organizations have created different problems, including anti-trust prosecutions. Specialized copyright courts have been criticized by rightsholders. Individual litigation is costly and does not resolve infringements on an industry-wide basis.
The only large-scale solution for mass infringements is the fair use doctrine – the rule that permits use of copyrighted works for purposes of criticism, comment, news reporting, teaching, or research. It protects the public interest, absolves defendants of liability, and allows courts to avoid sticky problem of quantifying damages for past infringements and ongoing royalties for future use. Applying fair use in the mass aggregation context, however, extends the doctrine beyond the use of copyrighted content in the creation of new work to technologies that merely reproduce copyrighted works wholesale.
According to Tang, the class action device offers an under-researched way forward that avoids the problems of fair use without relying on legislative action and ongoing court supervision. She devotes part two of her article to the history of copyright class actions, describing a five-fold increase in such actions between 1990 and 2000 as compared to the previous five decades combined. Just as mass production of consumer goods and widespread harm led to the need for aggregate litigation in the last century, digital technologies that facilitate the copying of mass quantities of copyrighted works require more than what Judith Resnik calls “the familiar—but insufficient—single-file, laissez-faire, unaided civil justice system.”
Tang surveys the seminal copyright class actions of the 1990s and 2000s that filled statutory and common law gaps in “the lawless internet.” The first copyright class action against an internet service provider for the infringements of its users, Frank Music Corp v. CompuServe, led to a damages award, a licensing agreement for future royalties to the class, and releases for future claims. Subsequent lobbying by CompuServe produced a legislative carve-out for internet service providers who do not participate in the infringing conduct of users. The class action resolved the immediate dispute and led to industry-wide relief. A class action against Spotify similarly resulted in a settlement that compensated for past infringements and future royalties, while fashioning a forward-looking blanket licensing scheme that avoided the bottleneck of the Copyright Office. More importantly, the settling parties agreed to create a database to fill gaps in ownership data for music publishers. Follow-on legislation mirrored the best parts of the settlement, further proof of Tang’s theory that class actions are uniquely capable of acting as a catalyst for legislative change.
Part three offers four reasons the class action vehicle is well-suited to the copyright context. First, objecting class members play an important role in ensuring settlements are substantively fair. The epic Google settlement was rejected based largely on objectors’ arguments. The consideration of opposing views at settlement approval is preferable to a purely private bargain struck by two parties. Second, whereas individual licensing negotiations are not feasible, a class action settlement facilitates large-scale permissions. “Outside of fair use, only a class-wide resolution has the same effect of extinguishing all claims while also, unlike fair use, compensating smaller rights holders.” Third, the non-monetary components of the settlement have provided creative solutions to industry problems, such as the establishment of a publicly available musical works ownership database in the Spotify settlement. Finally, copyright class actions often lead to permanent legislative change because rightsholders have the incentive to seek the legislative corollary to the defendant’s release – legislation that protects them against future tech disruptors.
In refuting potential concerns in the final part of her paper, Tang identifies other advantages to class actions over other means of effecting change. For example, the hybrid public-private class-action settlement process has a better chance of defending the public policy of access to socially useful content than do rightsholders and public interest organizations in the political domain, where tech giants enjoy a distinct economic advantage. None of the usual critiques of regulation through litigation land as neatly in this category of cases because the record for follow-on legislation is strong.
Copyright class actions may not be alone in their ability to spur law reform. In Canada, class action litigation produced payday loans legislation and protection against mandatory arbitration clauses in consumer contracts. But Tang is correct that a small number of copyright class actions has had an outsized impact in this area of law, advancing the law and benefitting countless individual authors and artists. Tang concludes that “[a]ggregate litigation of copyright claims enables creators of all sizes to take advantage of a legal system that had previously been monopolized by the largest copyright holders.” The class action device was meant to serve this precise access-to-justice mission.
Jan 27, 2023 Aliza Shatzman
Jeremy Fogel, Mary Hoopes, & Goodwin Liu,
Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals (Nov. 30, 2022), available at
SSRN.
Diversity among judges affects diversity among law clerks. If what gets measured gets managed, California Supreme Court Justice Goodwin Liu opined at a recent Berkeley Judicial Institute event, the dearth of law clerk demographic data has precluded the federal judiciary from making strides toward diversifying appellate chambers. How diverse is the law clerk population? Not very, according to recent survey data by the National Association for Law Placement (NALP). The lack of diversity in one of the legal community’s coveted circles has implications not just for judicial decision-making, but also for the future of the legal profession. As we consider who rises to and through the profession—including to and through the judiciary—diversifying the profession starts with diversifying clerkship hires.
In Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals, retired Federal District Judge Jeremy Fogel, Mary Hoopes, and Liu provide readers with a rare window into one aspect of the opaque clerkship application process: circuit judges’ attitudes about and practices toward hiring diverse clerks. Relying on their relationships and stature as judges (and former clerks), the researchers collect candid insights about judges’ hiring decisions. Under the cloak of anonymity, judges explained that “There’s no monopoly over brains or qualifications; it’s a question of opportunity,” and “Diversity doesn’t mean a diminution in quality; it just means you have to be willing to look in non-traditional areas.”
The researchers conducted unrecorded Zoom interviews throughout 2020 to encourage candor. Participating judges had at least three years of appellate experience—this ensured a breadth of recent experience hiring clerks, although it limited the number of Trump appointees (three participated). Participants were neither randomly selected nor fully representative of the appellate bench. Minority judges, whose hiring strategies are of particular interest, were oversampled. The response rate was higher for Democratic than Republican appointees (71.4 percent versus 54.5 percent). The final sample of 50 judges represented 30 percent of active court of appeals judges, spanning all federal circuits with an average of fourteen years’ experience.
Judges shared their objectives for hiring; whether they consider diversity and, if so, what types; the practices they use to achieve their hiring objectives; whether they speak with their colleagues about hiring; and how best to engage their colleagues in conversations about diverse hiring. The study defined “diversity” broadly—not just gender, sexual orientation, and racial, but also law school, ideological, and socioeconomic diversity. Forty-three judges consider diversity when hiring clerks, although the types of diversity they value—and their methods for achieving this—vary. Many view their role in hiring law clerks as shaping the future of the profession and “training the next generation of attorneys.” As judges consider their “ensemble” of four law clerks, several opined about appellate clerkships “opening doors” for historically marginalized groups.
Judges who attended law schools outside the top 20 (“T20”) U.S. News and World Report rankings were more likely to hire clerks from outside the T20—76 percent of the non-T20 judges hired at least one quarter of their clerks from outside the T20, whereas 34 percent of the judges from T20 schools did. These judges sought to foster relationships between local legal communities and the bench and to develop local talent. One judge reasoned, “Whose life will [this clerkship] make a bigger difference in?”
Most judges assigned no weight or negative weight to ideological affiliation—several reported that American Constitution Society or Federalist Society on an applicant’s resume was a “warning sign” that the clerk would be “too partisan.” Other judges sought ideological diversity between themselves and their clerks. This is surprising, as studies suggest ideological alignment between judges and clerks. In fact, the researchers postulated, clerkship applicants sort themselves by applying to like-minded judges: judges hire like-minded clerks because those individuals apply. This ideological sorting is particularly pronounced among “feeder judges”—those who send large numbers of Supreme Court clerks—since Justices seek ideological fit.
Most judges sought gender, racial, and ethnic diversity. Republican appointees reported more trouble achieving gender balance than Democratic appointees. One judge remarked that “I’m not seeing a lot of women who would be drawn to the current Republican Party;” others observed that “far fewer female students are conservatives” and those “with good credentials get snatched up really quickly.” Questions of racial and ethnic diversity were more complicated. Most judges were “intentional” about this, engaging in “affirmative outreach” to “reconceptualize hiring.” Minority judges hired more minority clerks. These practices—and results—were particularly notable among Black judges. They went “out and about” in their communities—they attended affinity-group events at law schools; contacted diverse candidates they read about and encouraged them to apply; and conveyed to trusted law professors that they sought diverse applicants. Black judges, who represent just one eighth of circuit court judges, hire more than half of the Black clerks. Yet diverse judges alone cannot diversify appellate chambers.
The study fosters honest dialogue among judges about diversifying law clerk hiring. A “norm of silence” pervades courthouses; no judge wants to intrude into colleagues’ deeply personal hiring decisions. Yet many judges want to hire more diverse applicants and are interested in their colleagues’ hiring strategies. While judges might not respond well to “being told what to do” by outsiders, they listen to their peers.
Judges must take intentional steps to diversifying hiring. Relying on stereotypical credentials such as law school ranking, grades, and class rank will not achieve this. This study also has implications for judicial selection (diversity among judges affects diversity among clerks); ideological segmentation (clerkship applicants and feeder judges engage in this practice); and data transparency (more robust data are needed). The authors offer an organizational structure solution—a Clerkship Resource Liaison to serve as a conduit between judges and law schools to help them achieve their hiring objectives.
“The norm of silence will not change without a catalyst,” and judges respond to their colleagues’ opinions. As a fellow traveler in the law clerk advocacy space who understands the value of judges broaching difficult conversations with their peers, I hope Judge Fogel and Justice Liu will continue this dialogue in appellate courthouses. This topic, while “rarely broached within the judiciary,” is one of great contemporary interest among prospective clerks and the many stakeholders seeking to diversify the legal profession.
Jan 13, 2023 Jay Tidmarsh
Helen Hershkoff & Luke Norris,
The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline, 122
Mich. L. Rev. 1 (forthcoming, 2023), available at
SSRN.
Since Robert Cover’s 1981 article, many (including me) have accepted on faith that jurisdictional redundancy is a good thing. Redundancy is a feature of many complex systems. In the judicial context, redundancy creates competition among courts. According to Cover, this competition prevents ossification of the judicial process — whether that ossification arises from the self-interest of one system’s judges, from one system’s ideological capture or impasse, or from one system’s resistance to innovation. The principal cost of jurisdictional redundancy, especially in the context of state and federal courts, is its inherent messiness or inefficiency; an array of often complex doctrines polices the lines between systems (think of the rules of subject-matter jurisdiction, abstention, and full faith and credit, to name three). Concurrent jurisdiction between federal and state courts has a pedigree nearly as old as the Republic, its inefficiency often seen as a necessary cost to achieve the benefits of jurisdictional redundancy.
This sobering article by Helen Hershkoff and Luke Norris adds a new set of factors — how corporations have exploited the diffusion of adjudicatory power to evade accountability for their actions — that weaken the case for redundancy. Worse, the authors seek to demonstrate how this corporate abuse of jurisdiction bleeds over from preserving economic power to creating political power, establishing the conditions for oligarchic authority that undermines American democracy and self-government.
In many ways, this article follows in the vein of scholars such as Burbank & Farhang, Staszak, and Chemerinsky, each of whom has documented how the Supreme Court has used procedure to kneecap substantively progressive legislation or legal claims. But this article adds new dimensions.
It begins by tracking corporate efforts in the late nineteenth and early twentieth centuries to crack open access to federal courts, which were perceived as more hospitable to corporate efforts to achieve a national market largely unfettered by regulation. That effort was single-minded: establish jurisdictional and procedural pathways to federal court. Switching to modern times, Hershkoff and Norris show that corporations have not changed their goal of finding forums where they are least subject to regulation and accountability.
But the landscape changed after the New Deal, as corporations found themselves subject to federal regulation, typically enforceable through private rights of action (as Farhang documented). In this environment, corporate strategy becomes more diffuse. In some areas, it makes sense for corporations to gain a federal forum and “lock in” federal jurisdiction; the authors cite removal doctrine, especially the recent rise of fraudulent removal and snap removal. In other areas, however, it makes sense to “lock out” federal courts to prevent them from adjudicating disputes: see the Supreme Court’s muscular support for a broad reading of the Federal Arbitration Act, which sends many consumer and employee disputes to corporate-friendly arbitral forums. And in still other areas, it makes sense to “throw out” cases to administrative agencies; here (in their least helpful example) the authors cite primary jurisdiction, which does not end federal-court review but delays enforcement of federal law, lodges fact-finding in a possibly more favorable forum, and drives up costs for opponents.
The authors’ basic claim that procedure is being used to frustrate substantive enforcement is not itself novel. Nonetheless, the concepts of “lock in,” “lock out,” and “throw out” provide a useful lens for thinking about the Supreme Court’s recent procedural rulings. What makes the authors’ contribution especially powerful is their attempt to link these efforts to a possible ongoing transition in the United States from democracy to oligarchy.
According to the authors, corporations are using their economic power to achieve unequal access to courts, a political resource. While the authors are cautious to note that unequal access to political resources does not itself create an oligarchy, unequal access “concentrat[es] political opportunities in the ‘haves’” and therefore limits the opportunities for democratic contestation. In turn, a more oligarchical structure allows a minority to maintain control without the assent of the majority and creates the conditions for the de-democratization of the United States. The jurisdictional abuse that helps to create the “oligarchic courthouse” (to use the authors’ phrase) may not itself signal the end of American self-government, but it must be seen as a piece of other movements — such as efforts to undermine free and fair elections and laws that consistently favor the wealthy and powerful — that close off the majority’s will and threaten an end to American democracy.
Hershkoff and Norris also seek to answer the evident question: granting that corporations want an oligarchic courthouse, why have judges abetted efforts that could undermine American democracy? They offer numerous reasons — organizations (such as the Federalist Society) with a mission of shaping pro-corporate judicial thinking, Democratic acquiescence by appointing judges with corporate and prosecutorial backgrounds, and a narrative about litigation abuse that has captured institutional actors such as judges and procedural rulemakers.
That the connection between corporate efforts to avoid accountability and the conditions establishing oligarchical power is more theoretical than clearly proven presents the article’s weak point. In terms of the threat to democratic values, the difference between election denial and a corporation’s snap removal of a lawsuit is night and day, and there is no suggestion that corporations condone election denial. Nonetheless, the stakes of an oligarchic courthouse are high, and defenders of democracy ignore these jurisdictional abuses at their peril. At a minimum, if the authors are correct, we must reassess the value of jurisdictional redundancy. Redundancy presents a tool that powerful interests can use to shop around for their best forum — setting in motion the anti-democratic tendencies the authors describe.
Hershkoff and Norris offer a bleak assessment of where we are — of where courts, and especially the Supreme Court, have led us. They provide no rosy solutions. They are pessimistic that reforming jurisdictional rules will get us out of this conundrum; such reform will be hard to achieve, and corporations will adapt to the new rules, as they did after the New Deal. They suggest that law professors alert their students to the democratic values at stake in dry jurisdictional doctrines. They recommend the construction of networks that can produce a counter-narrative focused on the value of procedure and litigation for the “have-nots.” And they argue that the preservation and expansion of democratic power should lie at the center of jurisdictional design.
Good ideas all, but are they enough?
Cite as: Jay Tidmarsh,
Jurisdictional Abuse and American Democracy, JOTWELL
(January 13, 2023) (reviewing Helen Hershkoff & Luke Norris,
The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline, 122
Mich. L. Rev. 1 (forthcoming, 2023), available at SSRN),
https://courtslaw.jotwell.com/jurisdictional-abuse-and-american-democracy/.
Dec 7, 2022 Roger M. Michalski
Electronic filing has been a mainstay of federal practice for twenty years. It makes filing more convenient and cheaper than regular mail or personal delivery. The Federal Judicial Center (“FJC”) learned from federal clerks of court that pro se litigants sometimes can use the federal courts’ Case Management/Electronic Case Files (CM/ECF) system and sometimes not. In response to a request by the federal rules committee’s working group on pro se electronic filing, the FJC conducted this study of where, when, and how pro se litigants can electronically file.
The FJC reached out to seventy-nine [out of 190] clerks of court, all but one of whom agreed to participate in [the] study. Using “loosely structured interview[s]” the FJC asked each a range of questions, including whether pro se litigants, prisoners, and unrepresented bankruptcy filers (e.g. pro se creditors) can file electronically; what they must do to become electronic filers; whether pro se litigants can initiate cases directly in CM/ECF; whether the court ever accepts filings by email, fax, or electronic drop box; signature requirements; the existence, location, and use of physical drop boxes; and how they time-stamp drop box items.
The main contribution of this article is to provide a richly textured, nuanced, nitty-gritty account of electronic filings by pro se litigants. It takes time and care to examine the differences between submitting a document to a court and filing a document; between initiating a case and filing in an existing case; between NextGen CM/ECF and previous generation CM/ECF; among civil, criminal, and bankruptcy cases; and between prisoner and non-prisoner pro se litigants.
The study also distinguishes filings in the courts of appeals (less complicated and more permissive of pro se filings) from filings in district and bankruptcy courts (generally more complicated and less permissive). About half of districts allow non-prisoner pro se litigants to use CM/ECF to file in existing cases with individual permission. About one in ten dispense with the need for advanced permission for existing cases. Slightly more district courts do not permit pro se litigants to use CM/ECF. One in five district courts are silent on these questions. Where permission is required, the presiding judge typically decides (on formal motion), although some districts allow the clerk’s office to decide on less formal processes.
These variations might be explained, in part, by courts having different experiences and expectations concerning pro se litigants who might struggle with court procedures in general and CM/ECF in particular. The pro se litigant’s lack of experience, lack of potential Bar sanctions as deterrent, mental health issues, and occasional vexatious litigation behavior might make some courts more cautious about granting pro se litigants electronic access. As the FJC reports, however, courts that have granted access have “reported fewer problems than expected.”
Prisoner pro se litigants typically cannot file using CM/ECF because they lack internet access, forcing them to use regular mail. But courts have arrangements with some prisons that allow or even mandate electronic submissions. Prisoners present filings to a prison librarian who scans and transmits them to the court. On the return, some prisons accept electronic notices on behalf of prisoners and then convert filings to paper documents. In other prisons non-prisoner and court filings must still be served by regular mail. There is again a hopeful note in this variation: courts that permit electronic communications with prisoners “reported a reduction in controversies over the reliability of prison mail.”
Beyond these and other summary findings, the article includes multiple-paragraph accounts for each of the seventy-eight clerks’ offices that participated in the study.
This article represents a tremendous amount of research and care. Few other researchers can dream of having such thorough access to and participation by so many federal courts. This allows the article to develop a nuanced court-by-court description that provides a better sense of the rich texture and diversity of approaches to pro se litigation, the existence and extent of experimentation, and embedded value judgments. As such, the article complements and rounds out the important work of scholars such as Andrew Hammond who study court-by-court how federal courts interact with pro se litigants.
The article also provides insight into the research the federal judiciary and the rule-makers use in their decision-making. This is not the only way to do research. But academic researchers frustrated with their lack of impact might find here useful pointers. That said, it can be jarring for someone accustomed to reading law review articles all day to encounter a study overflowing with normative implications that are never cashed out and barely hinted at. This is a study about the meaning of access to justice in the most concrete, practical, nitty-gritty way, and yet the authors take great care not to evaluate or situate. They do not hit the reader on the nose with policy recommendations. That is equally refreshing and frustrating.
The article is worth a careful read for all these reasons, as are the many studies the FJC publishes each year. Academics are not the FJC’s primary audience. But we have much to learn from its insights, resources, and alternative approach.
