Jan 6, 2021 Linda S. Mullenix
Thomas D. Russell,
Frivolous Defenses (Aug. 17, 2020), available at
SSRN.
From the mid-1980s through the turn of the twenty-first century, tort reform advocates, corporate entities, politicians, and lobbyists have raged about an alleged plague of frivolous lawsuits clogging state and federal dockets. In what perhaps might be characterized as revenge of the plaintiffs’ bar, Thomas Russell has turned the table and written the first systematic study of frivolous defenses. This provocative article, which has raised the ire of insurance defense attorneys, is worth reading as a compelling counterpoint to the frivolous lawsuit narrative.
Russell is a torts professor and plaintiffs’ attorney in Colorado. Based on his experience representing plaintiffs in auto accident litigation, Russell concluded that “Sometime after the first-year civil procedure course, insurance defense lawyers learn to ignore the rules of civil procedure when filing answers to lawsuits.” In handling client cases, insurance defense attorneys repeatedly frustrated Russell with the paucity of their responses to the averments in his complaints. Trial judges frustrated Russell by denying his motions concerning the inadequacy of defense responses.
Russell anchors his discussion in Nora Freeman Engstrom’s scholarship on “settlement mills.” He notes that Engstrom’s scholarship demonstrates how plaintiffs’ lawyers participating in settlement mills engage in routinized practices, conduct little factual investigation, and take shortcuts to achieve the quick settlement of small cases. Russell’s article crosses from the plaintiffs’ side of the docket to examine the work of insurance defense lawyers in auto accident lawsuits who respond by filing boilerplate, largely non-responsive answers to plaintiffs’ averments. As titillating as studies of plaintiffs’ lawyers may be, additional study of the plaintiffs’ side without a correlative look into defense work perpetuates a distorted view of tort litigation. His study of insurance defense practices is intended to provide this balance.
The heart of the paper is an in-depth empirical study of the Colorado state court docket in 2015, focusing on auto accidents occurring between 2012 and 2015. Approximately ¼ of Colorado car crashes result in personal-injury claims, comprising the highest proportion of personal-injury cases in the state. He examined answers in 355 cases, focusing on defense lawyers’ responses to plaintiffs’ averments in their complaints and cataloguing how defense attorneys’ responses departed from the rules of procedure when answering.
The centerpiece of Russell’s analysis is compliance—or non-compliance—with Colorado Rules of Civil Procedure 8(b) and (c). Colorado Rule 8(b) directs a defendant to state in short and plain terms their defense to each of the plaintiff’s claims by admitting, denying, or indicating a lack of knowledge or information sufficient to form a belief as to the truth of an averment. Like its federal counterpart, Colorado Rule 8(c) permits defendants to assert affirmative defenses.
Russell argues that in replying, defense attorneys fail in their professional obligation to conduct the adequate investigation required by Rule 11 prior to responding, as well as frustrating plaintiffs’ ability to obtain useful information to advance their litigation
First, defense lawyers routinely fail to respond to plaintiffs’ averments by stating that an averment “calls for a legal conclusion,” a response not recognized by, and thus contrary to, the rules. Second, defense attorneys fail to admit information concerning co-defendants, an evasion not authorized by any rule or privilege. Third, defense counsel routinely assert that a “document speaks for itself,” a boilerplate response that evades Rule 8’s clear path. Finally, Russell documents the boilerplate laundry list of affirmative defenses asserted by insurance company defendants, many of which are clearly unmeritorious or fantastical.
Russell’s hero is the late federal Judge Milton Shadur of the Northern District of Illinois, one of few federal judges to balk at defense lawyers’ boilerplate responses that evade Rule 8 and its goal of providing meaningful information to plaintiffs. Discussing Rule 8(b) of the Federal Rules of Civil Procedure, the counterpart to the Colorado rule, Judge Shadur insisted that too many lawyers “feel a totally unwarranted need to attempt to be creative by straying from that clear path.” He complained of defense attorneys’ “pervasive and impermissible flouting of the crystal-clear directive” of the rules for responsive pleadings.
Russell argues that his analysis parallels Engstrom’s, insisting that insurance defense attorneys engage in similar mill-style practices. He makes a sweeping indictment: Defense lawyers engage in routinized practices; conduct little or no pre-answer factual investigation; ignore factual investigations that claim agents have conducted; ignore the rules of civil procedure; take purposive, obstructive actions that defeat the fact-finding goals of pleading; and likely delegate legal work to paralegals, thereby violating the Rules of Professional Conduct. In the final analysis, Russell’s remix of Engstrom’s scholarship is his recommendation to law professors “Don’t Let Your Law Students Grow Up to be Insurance Defense Mill Lawyers.”
Dec 11, 2020 Maureen Carroll
A federal judge is accused of misconduct and an investigation begins. Before the investigation has concluded, though, the judge leaves her post. What happens next? Does it create an accountability gap, and if so, how much should that concern us? These are the questions that Veronica Root Martinez takes up in Avoiding Judicial Discipline.
This topic is timely and important in light of the crisis of accountability in the modern federal judiciary. Federal judges’ work is high in status and low in transparency, in the sense that social and professional norms give them a great deal of power but allow them to operate mostly out of public view. Those conditions create fertile ground for sexual harassmentand other forms of misconduct, yet the federal judiciary has largely been left to police itself. Federal judges are exempt from workplace misconduct laws such as Title VII. Congress has the authority to impeach and remove them, but in 230 years, the House of Representatives has impeached fifteen judges and the Senate has removed eight.
Martinez focuses on the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, which offers one of the few mechanisms through which allegations of judicial misconduct can be addressed. The statute gives the judicial council of each federal circuit authority to investigate allegations and impose discipline when appropriate. But that authority extends only to judges serving within the circuit. If a judge leaves the circuit’s bench before the investigation is complete, the statute’s grant of jurisdiction evaporates and the matter ends.
Martinez uses three recent examples to demonstrate that short-circuited investigations are not merely theoretical. Maryanne Trump Barry was serving on the Third Circuit when it initiated an investigation into allegations that she had engaged in tax evasion. Shortly after receiving formal notice of the investigation, she retired, ending the investigation. Alexander Kozinski was serving on the Ninth Circuit when it initiated an investigation into allegations that he had sexually harassed several of his law clerks. He retired days later, so the investigation never even got off the ground. Brett Kavanaugh was serving on the D.C. Circuit when allegations became public that he had committed sexual assault while he was in high school. The circuit received several complaints connected to those allegations, but because he left the circuit to become an associate justice of the Supreme Court, all were dismissed.
These examples are well-chosen, and Martinez draws on them to make concrete various flaws in the status quo. A judge with unadjudicated allegations of misconduct can continue to draw a pension equal to her full salary; since her retirement, Barry has continued to receive a judicial pension in the neighborhood of $200,000 per year. Retirement from a judicial post does not equate to retirement from the profession; it might be followed by the practice of law (as with Kozinski) or another judicial position (as with Kavanaugh). Any misconduct that goes unaddressed in one forum might appear again in another.
Systemically failing to address misconduct creates systemic problems, and even as she draws on the lessons of individual instances, Martinez remains focused on that broader view. The failure to complete investigations into judicial misconduct allegations can contribute to a public perception that judges are above the law. The judiciary’s only real authority comes from the public’s faith in it; as Martinez puts it, “who will obey a judiciary that fails to police itself?” That failure of self-policing can also put judges on an ethical slippery slope, under which a judge might not notice his behavior worsening over time. As that deterioration occurs, it might become normalized among the judge’s peers as his standard operating procedure—an open secret perhaps, but not one that other judges feel compelled to do anything about.
Systemic problems require systemic responses, and Martinez offers several. She proposes modifying the Judicial Conduct and Disability Act, to confer authority to complete an investigation after a judge leaves the circuit and to make clear that the inquiry could address whether the judge should remain eligible to receive a pension.
Failing legislative reform—and Martinez is not optimistic on that front—each circuit’s chief judge and judicial council should adopt a “custom of referral” for every non-frivolous complaint they receive. Under this custom of referral, a circuit would simultaneously forward a complaint to Congress and to any state bar to which the accused judge belongs. The congressional referral would be designed to prompt an inquiry into the appropriateness of impeachment proceedings. Although a judge who has retired cannot be removed from the bench, Congress could evaluate whether the former judge should be eligible to receive a pension or serve in a similar federal office in the future. The state bar referral would be designed to prompt an investigation into potential violations of the rules governing attorneys’ professional conduct. Although some judges do not belong to any state bar, some intend to practice law after leaving the bench, so those proceedings could have real teeth.
Martinez covers a lot of ground in this essay, but she does not purport to address all of the situations that might leave allegations against a federal judge unadjudicated. For example, how should the death of a judge affect an investigation into allegations of misconduct? That situation looms large in my mind, because I clerked for Stephen Reinhardt. He sexually harassed Olivia Warren, who was clerking for him at the time of his death in March 2018. Warren tried to report the misconduct through formal and informal avenues, from former Reinhardt clerks to the federal judiciary’s Office of Judicial Integrity, but they (and we) failed her at every turn.
When the allegations became public, some objected that they risked damaging the judge’s reputation for no real benefit. Martinez discusses similar objections. She sees them as consistent with what she refers to as “weak civility”—the idea that judges and lawyers should be mannerly with each other and that allegations such as these are somehow unmannerly. But as Martinez powerfully argues, we should be more concerned with “strong civility,” which prioritizes interpersonal respect and the proper functioning of the judicial branch. That version of civility counsels in favor of a full accounting of any misconduct that has occurred.
Nov 26, 2020 Steve Vladeck
Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb,
Supreme Court Practice (11th ed. 2019).
Seventy years ago, Robert L. Stern and Eugene Gressman published the first edition of Supreme Court Practice, intended “to set forth in a single volume . . . as close as possible to everything, outside of the field of substantive law, that a lawyer would want to know in handling a case in the Supreme Court.” For generations, the treatise (known most commonly as “Stern and Gressman”) was an indispensable staple on every Supreme Court practitioner’s bookshelf (and, rumor has it, the bookshelves of more than a few Justices). The new and improved eleventh edition—published late last year and authored by the late Stephen M. Shapiro (to whom it is dedicated), Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb—drives home why: For an institution governed as much by formal and informal norms as it is by rules and statutes (for instance, the settled—but unwritten—understanding that it takes four Justices to grant a writ of certiorari), an accurate, accessible guide to both the written and unwritten rules of the road was an obvious necessity.
More than that, the authors of SCP were (and remain) in an open and behind-the-scenes dialogue with the Supreme Court Clerk’s Office and the Justices themselves. Questions raised in earlier editions have provoked formal and informal rule changes at the Court, and the editions, in turn, have attempted to keep up with formal and informal developments at One First Street. Indeed, a cursory search for citations to the treatise in reported Supreme Court opinions returns 90 hits, from 1957 to this summer. Simply put, SCP has become more than just a practitioner’s guide; it has become a font of institutional knowledge for an institution that is, notoriously, anything but transparent. And it is a one-stop shop for those trying to figure out all kinds of arcane but potentially significant historical tidbits—such as the last time a Justice heard oral argument in chambers (“apparently” in 1980). In that sense, SCPhas become a necessity for students and scholars of the Court as well.
All of that goes to why SCP is singularly useful. But perhaps the biggest surprise to those who pick it up for the first time is that it is readable, straight through, in ways that most treatises aren’t. That is to say, although the book’s signature value is as a desk reference, later editions have increasingly—if unintentionally—become a textbook for a coherent course (self-taught or otherwise) on “how the Supreme Court conducts its business.” In the tradition of Felix Frankfurter and James Landis’s 1928 tome on The Business of the Supreme Court, someone trying to better understand the Court today (and how it has evolved) could simply march through SCP’s 20 chapters (albeit perhaps skipping the last one—on bar admissions and disbarment), and come out with a deeper understanding of the Court’s practices than (dare I say) even the Justices themselves.
And that is where the eleventh edition really shines. It does not just smooth the Court’s rough edges and provide guidance for everything from the mundane to the macro; it provides ever more of a window into an increasingly significant part of the Court’s substantive work: what Will Baude has labeled “the shadow docket,” i.e., the (growing number of) significant rulings that the Justices hand down through orders—especially those granting or denying applications for stays, injunctions, and other forms of emergency relief.
To be sure, for as long as the Court has existed, it is had a procedural docket. As Ross Davies noted, Congress required a lone Justice to sit for a rump Term every August from 1802 to 1839—to dispose of, among other things, any pending procedural matters that did not require the full Court’s attention. But there’s no denying that Justices’ rulings on orders have drawn more attention in recent years—or that they have become more controversial. In October 2020 alone, in the run up to the November elections, the Court handed down 10 shadow docket rulings on applications to grant (or lift) lower-court stays pending appeal, eight of which provoked public dissents. During the October 2019 Term, 11 shadow docket rulings alone provoked four public dissents, compared to only 12 of the Court’s “merits” cases. Simply put, the Justices are doing more to disrupt the status quo in the lower courts pending appeal than they ever have before; their machinations are provoking more disagreements than they ever have before; and (almost) all of this is happening without any opinion for the Court explaining why the Court is ruling the way it is in a particular case—let alone where this broader uptick is coming from or why.
To be sure, the eleventh edition of SCP does not purport to answer these questions. But as much as any other source, it provides a fair amount of evidence and a whole bunch of clues—from the Court’s quiet move to a “continuous” Term in 1979 (which allowed the full Court, rather than a single Justice, to resolve contentious applications even during the summer); to the increasing frequency with which all contentious applications have been referred to the full Court; to the slow but steady decline of in-chambers arguments and opinions; to the subtle shift in how at least some of the Justices have applied the traditional four-factor test for emergency relief. To their credit, the authors do not draw specific conclusions from these individual data points. But they make it possible for others to do so—and to attempt to draw broader lessons from patterns that would be all-but impossible to even see without their efforts.
Critically, though, the shadow docket comes into clearer view thanks to a specific slice through SCP’s 1600 pages, especially its chapter devoted to stays, injunctions, and bail. And although increased popular and academic attention focuses on the shadow docket today, it could shift to another hitherto esoteric aspect of the Court’s work tomorrow—especially if conversations about judicial reforms become more than hypothetical in 2021. Whatever happens, SCP will surely remain first among equals when it comes to legal treatises—as comprehensive and accessible a guide to the actual workings of the Supreme Court as is reasonably possible, and one that already does, and should, provide real value and insights to far more than those of us who consider ourselves SCOTUS nerds. And for that, we owe a debt of gratitude to Stern, Gressman, and their contemporary successors.
Nov 12, 2020 Marin K. Levy
The field of judicial administration has started to produce an embarrassment of riches. Many of the legal academy’s best young scholars are taking up critical issues related to how courts operate and how judges reach their decisions. Two forthcoming articles (and their authors), which take on the topic of non-binding authority, are perfect exemplars: Maggie Gardner’s Dangerous Citations and Merritt E. McAlister’s Missing Decisions.
As we know, courts cite to binding precedent in their opinions to support a particular point (e.g., the law on X is Y in Z jurisdiction). There are times, however, when courts cite to non-binding precedent, be it a published opinion from a court that cannot bind it or an unpublished opinion that binds no court. And we generally have assumptions about how this process works. First, that courts cite to non-binding authority sparingly and only when truly appropriate (e.g., for a persuasive point that is not well captured elsewhere). Second, that all decisions that a court might cite—including unpublished ones—can easily be accessed and assessed by the public. Gardner and McAlister challenge these assumptions in their respective articles.
Dangerous Citations examines the curious phenomenon of judges citing non-binding authority. In particular, the article looks to instances in which district judges cite work of other district judges, despite the fact that the opinions of their colleagues cannot bind them. While this practice can be harmless or even useful—as Gardner notes, it can promote consistency in the law, for example—it can also be quite harmful.
Specifically, Gardner divides what she terms “dangerous citations” into two categories: those that are poorly conceived and those that are poorly implemented. Poorly conceived citations are ones in which the non-binding authority being leaned upon simply cannot be authoritative under the circumstances. A classic example is a cite to another case to establish facts (outside of the preclusion context)—courts seem to do this more when asked to fill in factors of a cumbersome multi-factor test. Poorly implemented citations, by contrast, rely upon authority that is not quite apt. For example, a court looks to a sibling court for guidance on a subject and imports a test that does not fit the context at hand.
What are the problems with poorly conceived and poorly implemented citations? First and foremost, they run against our understanding of how authority is meant to operate—it undermines the rule of law if courts cite cases for propositions that they cannot support. And second, such actions can inadvertently introduce errors into decisions, thereby shifting the path of the law in detrimental ways. For example, if a court “borrows” a test from one context and (mis)uses it in another, the law will be the worse for it. These are important concerns to be documenting and assessing, and some may carry into the use of citations to binding authority more generally. They certainly give us pause as we pick up and read the next opinion . . .
Missing Decisions takes on a separate problem of non-binding authority—whether such opinions are available to pick up and read in the first place. One of the great debates within judicial administration over the last several decades was about the propriety of unpublished opinions (opinions that are not published in the Federal Reporter). A truce of sorts made such opinions citable, although non-binding, beginning in 2007. And most thought the issue was largely resolved with the advent of the major legal databases such as WestLaw, Lexis, and Bloomberg Law. That is, the designation “unpublished” became less problematic given that the opinion it referred to was easy enough to locate. McAlister calls into question that “given.”
Missing Decisions painstakingly documents how 27% of merits terminations in the twelve-month period ending September 30, 2017 are missing from the major commercial legal databases. To be sure, most of these are likely quite short and light on reason-giving. Still, this discovery is significant to scholars, practitioners, court administrators, and even judges.
How did so many decisions go missing? Not all decisions are released onto court websites—the websites that then populate the big commercial legal databases. This does not mean these decisions are nowhere to be found; they exist on the federal courts docketing database, PACER. But PACER lacks keyword-search functionality, rendering it of little use—in effect, one would have to know that a particular opinion exists to find it. The gap Missing Decisions identifies, therefore, is a substantial one.
The result, McAlister argues, is that we have been operating under a “false sense of transparency.” And what is the problem with that problem? First, our ability to be an effective check on the judiciary is impeded if a sizeable percentage of its decisions is out of sight (even accepting that many of these decisions may be perfunctory). And second, McAlister suggests that many of the missing decisions come from cases involving pro se litigants, criminal appellants, and non-citizens—our most vulnerable litigants. Depriving future litigants of the chance to review similar cases and outcomes may harm their own litigation chances. Moreover—tying back to a concern that Dangerous Citationsraises—the path of the law could be shifted, even if just modestly, in a detrimental way.
What the two articles have in common, beyond adding to our understanding of how judges and courts operate, is that they identify concerning problems and then provide meaningful solutions. For Dangerous Citations, the solutions are a few-fold. First, appellate courts should create less complex legal tests for lower courts—quelling the demand for shortcuts by which judges inappropriately rely on colleague courts. Second, Gardner hopes to change opinion-writing norms, so that judges internalize quality citations over quantity. Awareness of the problem is necessary to accomplish that goal—and Dangerous Citations paves the way. For Missing Decisions, the solution is at the courts’ fingertips. McAlister proposes that the Judicial Conference issue guidance requiring courts to make all decisions (that are unsealed and that are stripped of personally-sensitive information) freely available on court websites. This step is critical in and of itself and will lead to broader collection of decisions by the WestLaws and Lexises of the world.
Ultimately, Gardner’s and McAlister’s works shed necessary light on how we maintain and rely upon non-binding decisions. Their articles challenge our notions of the status quo and should lead to real-world fixes, leaving all of us—including the courts—the better for it.
Marin K. Levy,
The Status of Non-Binding Authority, JOTWELL (November 11, 2020) (reviewing Maggie Gardner,
Dangerous Citations,
Maggie Gardner, Dangerous Citations, 95 N.Y.U. L. Rev. (forthcoming 2020).; Merritt E. McAlister,
Missing Decisions,
Merritt E. McAlister, Missing Decisions, 169 U. Pa. L. Rev. (forthcoming 2021).), http://courtslaw.jotwell.com/the-status-of-non-binding-authority.
Oct 28, 2020 Fred O. Smith, Jr.
Seth Davis’s The New Public Standing canvasses and interrogates ways that state and local governments allege financial injuries to challenge the constitutional validity of federal law. Federal courts are often quite generous in entertaining private litigants’ claims based on economic injuries (as opposed to ideological or “conscience-based” injuries). Across a wide range of domains, states have relied on this generosity to allege creative economic injuries, even when the states’ actual objections to the relevant federal law are based on ideology. In Davis’s view, this kind of “new public standing presents constitutional, prudential, and remedial issues that are distinct from those raised by private standing for the public and by private standing based upon financial injuries.”
Previous scholars have examined ways that state governments allege injuries to their sovereignty or “quasi-sovereignty.” States sometimes invoke the doctrine of parens patriae to allege injuries to the health and welfare of their citizenry; states allege injuries to the geographic reach of their sovereign territories; and states allege injuries to their lawmaking authority. It has been said that states receive “special solicitude” as quasi-sovereigns, permitting them to command the jurisdiction of federal courts under circumstances that private litigants would not.
But Davis’s focus is different—he targets cases in which state and local governments allege economic injuries. By way of example, states challenging President Trump’s potential violations of the Emoluments Clause contended the President’s actions put them at an unfair competitive advantage, given their ownership stake in properties. States challenging President Trump’s seven-country travel ban contended that the ban would affect revenue their public universities would otherwise receive from students who could not enter the United States. And at least one state challenging President Obama’s Deferred Action for Childhood Arrivals (“DACA”) policy argued that to comply with federal and state law, the policy would require the expenditure of funds to provide drivers’ licenses to individuals who would otherwise be ineligible.
To help explain these moments, Davis offers what Richard Fallon calls a “doctrinal Realist” account of this phenomenon. He seeks to “pars[e] … opinions to identify their operative facts against background patterns that could also facilitate predictions of results in future cases.” In Davis’s view, the new public standing will be more durable than previous attempts to open the courthouse doors for litigants with ideological or conscience-based objections to governmental policies. He contrasts the extant phenomenon to the Supreme Court’s expansion of standing for taxpayers in the late 1960’s, from which the Court sharply retreated. The new public standing is distinguishable in its origins and in the scope of its ideological consequences. In contrast to taxpayer-standing doctrine, conservative states were early innovators in making expansive and creative accounts of economic harm. Moreover, so-called “blue states” and “red states” have claimed economic injury against Republican and Democratic policies. As Davis explains, the “new public standing is an important vehicle not only for progressive legal mobilization, but also for conservative legal mobilization—a vehicle that allows state executive officials of any ideology to bring partisan battles over the national public interest before the federal courts.”
At the same time, Davis contends that courts and commentators should be skeptical of states’ claims for a form of highly deferential “special solicitude” with respect to alleged financial injuries. He acknowledges that for states, a “loss of revenue may directly implicate the state’s uniquely public capacities to make and enforce law and to provide government services.” But relaxing standing requirements for states’ economic injuries could result in relatively few limits to enterprising state attorneys general seeking to challenge federal laws they do not like. “Given the interdependence of state governments and the federal government, any number of federal actions will affect a state’s finances to some degree, and, therefore, any number of state attorneys general will be able to point to financial injuries as a basis for suing the federal government.” Davis predicts that courts will rely on doctrines such as third-party standing and rules against manufacturing self-inflicted injuries to tame the new public standing. And he implies that this is a salutary development.
Davis also offers insights into what the new public standing might teach us about broader Article III doctrine. Given that states are relying on purported economic injuries to raise ideological objections, he contends that the rise of new public standing should encourage courts to revisit the distinction between financial and ideological injuries in private standing doctrine. Otherwise, by insisting on “concrete” injuries for private litigants who are less equipped to articulate structurally based financial arguments, public law litigation will be increasingly funneled through (sometimes highly partisan) state attorney generals’ offices.
These insights will undoubtedly prove influential, as Article III courts attempt to braid the power and flexibility that the new public standing gives them with the ever-present need to tailor the role of an unelected federal judiciary to resolving actual cases and controversies. Those who care about the enforcement of public law, and those who care about the proper role of courts in a democratic society, can benefit from Davis’s balanced, nuanced, and realistic analysis.
Oct 9, 2020 Robin J. Effron
Amanda M. Rose,
Classaction.gov, __
U. Chi. L. Rev. __ (forthcoming 2020), available at
SSRN.
It is easier than ever to notify class members of a proposed settlement and for class members to file claims. So why are participation rates so low in consumer class action settlements? This is one of the most important puzzles in modern complex litigation. With billions of dollars spent on class action litigation, a 9% participation rate in consumer class actions seems a dismal return on that collective investment, even accounting for the deterrent or quasi-punitive functions that a large settlement represents for the defendants. In her new essay, Amanda Rose offers a solution to this and other related problems of class action administration and transparency—have the federal government develop and administer a website, classaction.gov.
Classaction.gov is an intriguing proposal that would centralize and standardize certain administrative aspects of class action litigation and settlement (notice, informational websites, claims processing, and claims distribution) that she identifies as barriers to higher class participation rates as well as to the overall transparency of individual actions and class action litigation. Rose’s key insight is that broader and cheaper notice are insufficient to induce broader class participation, even when the average class recovery is a non-trivial sum. Rather, consumers must absorb the costs of reading and understanding the notice and assuring themselves that it is not fraudulent. A federally sponsored website would leverage Americans’ trust in the federal government. The use of a common government database would further streamline both the notice and claims processes.
Rose acknowledges the advantages of classaction.gov for improving direct and comprehensible notice to consumers. But her essay suggests that consumer distrust in the notice and claims process is the biggest sticking point in improving class participation rates. She observes that direct notice to class members has become much cheaper with the advent of electronic communication; likewise, new technology makes for more efficient and effective identification of potential class members. She rightly observes that something like classaction.gov would reduce the number of mismatched contact information and be a vehicle for proactively creating databases of consumers, their likely matches to class actions, and their best contact information.
While I agree that the consumer distrust argument is important and a compelling reason to give serious consideration to the classaction.gov proposal, Rose underestimates the persistent problems of notice, thus ignoring ways in which classaction.gov could be further developed to refine class action notice practices. Her approach still places too much faith in direct notice. She implies that classaction.gov can fix much of what is broken with our current system of direct notice – that it still fails to identify all potential class members, that contact information may be faulty, that the notices are unclear and difficult to parse, and that consumers who receive and read the notices are hesitant to invest the effort needed to assure themselves of the veracity of the notice. In fact, however, many emails and official hard-copy envelopes are simply discarded or deleted by consumers’ as they try to sort through the daily avalanche of emails and snail mail. An email may remain unopened or perhaps deleted, not only because of distrust but because it does not rise to the top of personal communications triage. And by the next day or week, it is one of many overlooked or forgotten missives. This follows in the long legal tradition of assuming that direct notice is almost always the best form of notice, tantamount to actual notice. But what if this is no longer true? What if other forms of notice, such as notice by publication, are actually superior as a replacement for or augmentation of direct notice?
Rose is skeptical of this argument. She finds proposals for invigorated programs of targeted advertising and database searching “impractical” for most consumer class actions and argues that consumers are more likely to respond to direct notices than advertisements.
But allow me to challenge this conventional wisdom with a recent anecdote.
In the summer of 2019, the parties to the Equifax data breach litigation announced a settlement plan. After a provocatively titled article in Slate declared, “You Have a Moral Obligation to Claim Your $125 from Equifax,” CNBC columnist Dan Mangan wrote “I may have banked up to $125 by filling out this Equifax claim in seconds — what are you waiting for?” Both articles went viral – especially after influential freshman Representative Alexandria Ocasio-Cortez retweeted the CNBC column with the message: “Everyone: go get your check from Equifax! $125 is a nice chunk of change. Get that money and pay off a bill, sock it away, take a day off, treat yourself, whatever you’d like- but cash that check! It takes one minute. Do it here.” Within hours, so many consumers had filed claims that Rep. Ocasio-Cortez hastily added a tweet advising potential class members to opt for the free credit monitoring option instead.
The Equifax story proves that we could be more creative about class action notice than limiting ourselves to improved direct-notice practices and plans. And that the power of Internet amplification of ideas might augment targeted advertising to more efficiently direct the right consumers to relevant class action certification or settlement notices. Rose’s proposal for classaction.gov—with its potential for growth, standardization, but also creativity—would be the perfect place to incubate and collectively execute innovative notice strategies, while continuing to fortify direct-notice practices. The Equifax example also suggests, however indirectly, that Rose is right about harnessing the power of the federal government to shore up confidence in the veracity of settlement notices and communications. Ocasio-Cortez is a popular figure, but at least some of her authority derives from the fact that she is a member of Congress. Her message that the settlement was real and that participation was important convinced millions to take the time to file a claim. It is time to use the transparency that we would gain from classaction.gov to allow the government and commentators to learn from isolated notice successes and turn them into comprehensive rules and programs.
Sep 25, 2020 Sergio J. Campos
The current global pandemic continues to disrupt our lives. But the pandemic has also inspired some pleasant surprises in the legal profession, ranging from humorous ways of engaging with law students to inventive ways of improving access to justice.
I want to highlight a particularly pleasant surprise for civil procedure scholars—the Civil Procedure Unavailability Workshop (the “Workshop”), a virtual workshop organized by Suzanna Sherry and Adam Steinman that has met weekly this summer and will continue monthly in the fall. (Full disclosure—Adam Steinman is the co-editor of the Courts section of JOTWELL, and I presented at the Workshop in early June). A full list of previous and upcoming presentations can be found here.
Unlike a typical law-school workshop, the Workshop does not necessarily focus on a work-in-progress. Instead, each presenter discusses a topic of interest to civil procedure scholars. The topics have covered a wide terrain of civil procedure—e-discovery, anti-SLAPP suits, the Erie doctrine, protective orders, class actions, personal jurisdiction, and even the bar exam, just to name a few recent topics. For the first half of each session one of the moderators asks the presenter two-to-four questions about the topic. These initial questions introduce the topic for nonexperts and show the topic’s relevance to current trends in scholarship and to curricular needs. The second half is a fun free-for-all where participants ask the presenter questions about the topic.
The participants are the best part of the workshop and have shown the promise of technologies like Zoom in fostering scholarly exchange. To provide some context: The typical workshop is conducted in a room at a law school, with the presenter speaking to a small group of approximately 20 physically present participants. The presenter may be from a different institution but almost all of the participants in the audience are affiliated with the law school (or perhaps larger university) hosting the workshop. For obvious reasons, the pandemic’s social-distancing requirements have made this typical set-up impossible. Moreover, the Workshop’s use of Zoom cannot replicate some of the advantages of face-to-face contact, which many have been pointed out.
Nevertheless, Zoom has opened up possibilities that could not be achieved in the typical set-up. For example, Zoom has allowed participants to attend from anywhere in the world, at a scale that would be impossible to replicate at many law schools. As a result, the Workshop has approximately 226 registered participants and typically 75-to-125 active participants for each session. Unlike the audience at a typical law school workshop, the Workshop participants are not all from the same institution. Indeed, although the Workshop is limited to law professors, the moderators have permitted a few nonacademics to participate, which has enhanced the already great discussions. One participant and presenter has been Chief Judge Lee H. Rosenthal of the Southern District of Texas, a former chair of both the Standing Committee on Rules of Practice and Procedure and the Advisory Committee on the Federal Rules of Civil Procedure.
The civil procedure scholarly community is a particularly friendly and generous one, which has made it easy for participants to meaningfully interact with each other without any fear of judgment. Indeed, one unintended feature I have enjoyed is participants, completely unprompted, acknowledging and engaging with the scholarly work of other Workshop participants. I take these exchanges as proof that scholarship does, in fact, get read!
Zoom also allows for different interactions among participants that would be hard to replicate in the typical law school workshop. One successful feature is the “chat” function, which allows participants to type questions or comments for all participants to read and respond to, supplementing points being made by the speaker or the participants. Based on my own observations, the “chat” questions have allowed participants who would normally hesitate to speak at a typical workshop to make their thoughts heard. The moderators have become adept at integrating chat questions into the queue of live questions, resulting in a great mix of questions that could not be easily created in the typical law school workshop. As an added bonus participants can download the “chat” to preserve not only all of the insightful questions asked, but the comments, links, citations, and other ideas that did not require a response from the presenter.
Zoom’s “chat” function also serves an important community-building role. One downside to the typical law school workshop is that it prevents participants from socializing, as attention is focused solely on the presenter. “Chat” does allow participants to send private messages to specific participants, allowing me, for example, to say a quick hello to colleagues I have not interacted with in years. It is the equivalent of passing a note during class, although (I hope) far less rude. In addition, the “Brady Bunch” layout of the speakers and participants makes it easier to see colleagues and feel less alone. Indeed, that names are published under everyone’s talking head makes it easier to follow up with participants after each session, something that can be a bit of a challenge in the real world when name tags are unavailable or illegible.
Finally, I want to point out a small but important feature of the Workshop. The moderators make a point of staying after the “official” end of each session to allow participants to continue the conversation with the presenter. This allows those participants who are particularly interested in the topic to have a more unstructured back-and-forth with the presenter. I have stayed for at least one of these sessions and they have been a lot of fun, mimicking at times a boisterous lunch with a small group of friends.
This pandemic has not created many things I have liked lots, but I have certainly enjoyed the Unavailability Workshop. I hope that it does not end with the pandemic and that it inspires other ways of bringing civil procedure enthusiasts together.
Sep 10, 2020 Leonardo Mangat
Justin Weinstein-Tull,
The Structures of Local Courts, _
U. Va. L. Rev. _ (forthcoming 2020), available at
SSRN.
Most of the conversation about Kansas v. Glover considered the Fourth Amendment’s bearing on traffic stops. But one detail has gone unmentioned: Glover began in Kansas District Court, that state’s trial court. It then travelled to the Kansas Supreme Court, before finally arriving at the Supreme Court of the United States. This hardly seems noteworthy. After all, state supreme courts, along with federal courts of appeals, are among the most well-trodden paths to the Supreme Court, and those state cases must begin somewhere.
Yet Glover is, quite literally, a statistical outlier. As Justin Weinstein-Tull describes in The Structures of Local Courts, only 0.3% of local court cases—cases like Glover—litigated through trial receive a state supreme court opinion, and fewer still receive one from the United States Supreme Court. Their scarcity at the pinnacle of our judicial system belies their ubiquity throughout it. In 2015, for instance, 361,689 criminal and civil actions were filed in federal court, while 86.2 million (yes, million) were filed in local courts. Most legal disputes begin and end in local courts, yet they’re markedly absent from legal scholarship. This article fixes that. Weinstein-Tull provides a trenchant account of local courts, illustrating their structural diversity, revealing how a state–federal law latticework leaves them mostly free from oversight, interrogating our conception of their purpose, and imagining reforms and new lines of scholarly inquiry.
But first, what are “local courts” anyway? Weinstein-Tull defines them as “any non-appellate judicial court authorized or created by state law.” Like many past jots, Weinstein-Tull’s focus reflects a concern with the courts most responsible for dispensing day-to-day justice to their constituents.
These courts are worlds unto themselves. Because they’re creatures of state law, local courts are more diverse than their federal analogues in both form and function. Many perform functions beyond typical adversarial adjudication, like drug courts in Missouri, which divert certain defendants from the ordinary criminal-law system and place them into rehabilitation programs. Others experiment with changes to their litigation processes, such as Utah’s online small-claims courts, which relieve litigants of the burdens of in-person litigation.
But many issues beset local courts, which can turn them into “constitution-free zones,” as one advocate remarked to Weinstein-Tull. Most importantly, many lack adequate funding, often resulting in understaffed courts, physically inaccessible courthouses, glacially slow trials, opaque proceedings, and incomplete records. One woman in a California court had to translate for her husband because the court lacked interpreters—despite the fact that she was in court only to apply for a restraining order against him. Elsewhere, Weinstein-Tull recounts a time when a local court clerk acted “as though they had never had such a request” for a court transcript for an appeal.
Against this backdrop comes Weinstein-Tull’s key contribution: He weaves together disparate threads of state and federal law to reveal how the former shapes local courts and how the latter shelters them. State law, Weinstein-Tull explains, shapes local courts in myriad ways, including in how it administratively oversees local courts, how it funds them, how it appoints and retains judges, and how it substantively reviews their legal decisions through its appellate process. This means “that some local courts are well-monitored by the state system and many are not.”
Take their funding sources. Some local courts are funded entirely by the state. Yet others are funded locally, without state financial aid or the financial prescriptions dependably attached to state aid. Between these funding bookends lie many more state–local funding configurations. These configurations matter. Local courts that are locally funded, Weinstein-Tull shows, favor their localities over their states. They view state procedures as less applicable to them, preferring instead to develop local procedures that, in turn, splinter existing statewide uniform rules. Nor are these local rules invariably better: Some local procedures, ostensibly created to raise revenue, penalize marginalized communities and contribute to their overincarceration. Altogether, the choices made in shaping local courts aren’t merely theoretical; they carry real consequences.
And while state law shapes local courts, federal courts shelter them from most scrutiny. In theory, federal courts partner with state courts in a complementary scheme to administer justice nationwide. But because ordinary rules of appellate procedure—like deferring to a trial court’s factfinding absent clear error—circumscribe an appellate court’s review, and because so few local cases are reviewed by appellate courts in any event, Our Federalism’s respect for state courts is more properly understood as a respect for local courts, Weinstein-Tull concludes. So understood, doctrines such as preclusion, abstention, and habeas corpus—which “purport to vindicate federalism values by promoting state courts generally”—require federal courts to defer to local courts’ decision-making specifically. When federal courts deny habeas petitions, for example, they rely on a record primarily developed in a local court to do so—one that may lack interpreters or even a standard process for requesting transcripts of its proceedings.
Apart from deferring to their decision-making, federal courts also protect local courts through stringent doctrines that shelter them and their officials from reform efforts. Standing requires litigants to prove that they would likely reappear before the local court—eliding the fact that many litigants in local courts are not repeat players. And litigants whose claims can pass through the courthouse doors are often thwarted by generous immunity doctrines. Because of this, all but the worst offenses go unreviewed.
All of this, Weinstein-Tull argues, should lay to rest the “myth of the state court”: “the idea that state courts are an analytically coherent concept that we can discuss as a single, monolithic alternative to federal courts.” Common arguments for the value of state courts—really, local courts—in judicial federalism focus on their capacity for experimentation, their distinctive interpretation of constitutional concepts, and their ability to communicate state preferences through federal-law adjudication. Yet these values are served best when local courts are diverse and visible. But local courts are not diverse and visible; they’re diverse and obscure. We cannot evaluate whether local courts live up to these values because we cannot see what local courts do. Rather than shy away from this and pretend that local courts are rough facsimiles of federal courts, Weinstein-Tull urges us to view them earnestly and on their own terms.
And what might an earnest look entail? For their part, states should require local courts to show their work; publishing their opinions and proceedings, Weinstein-Tull suggests, would enable stronger oversight. Federal courts, on the other hand, must be more aware of the reality, rather than the myth, of state courts, tailoring their doctrines to better vindicate federalism’s values. Beyond these suggestions, Weinstein-Tull also imagines future lines of scholarly inquiry. Scholars might ask how local-court jurisprudence actually functions, rather than assuming that local courts inflexibly apply the methodologies and doctrines of higher courts. They might also investigate how local courts exercise their considerable discretion too. These inquiries, Weinstein-Tull predicts, are among the first steps toward reconnecting us with “the law in our lives.”
Local courts matter now more than ever. As the pandemic courses through the United States, local courts have reacted with timely ingenuity. Some have begun what might be called modern-day circuit riding, travelling in RVs through towns to meet with litigants directly. Others have forged ahead with pilot programs that tackle the cresting eviction crises washing over their communities. But many local courts, reliant on local funding, have begun to curtail their staff and operations. “Local courts,” Weinstein-Tull says, “reflect the justice we have, not the justice we aspire to or the justice required by written law.”
His excellent article not only reminds us of this oft-overlooked fact but also lays the foundation for fruitful future scholarship and reform.
The author’s views here are his own and do not necessarily reflect his employer’s.
Aug 11, 2020 Adam N. Steinman
Few would mistake One First Street for a comedy club. Sure, it may be hard to get a ticket sometimes, but at least there’s no two-drink minimum once you get in. Am I right? Is this thing on?
But seriously, folks. For years now, some Supreme Court aficionados have taken a particular interest in oral argument humor. Jay Wexler’s @SCOTUSHUMOR Twitter account keeps regular stats on how often each Justice triggers [LAUGHTER] in an argument transcript. (He was on this beat before Twitter existed, in fact.) Wexler’s laughter rankings garnered a full Adam Liptak article in the New York Times, and Justice Breyer referred to them in a speech last Fall.
This all may seem like something on the lighter side of the Court-watching world, but it’s not immune from rigorous quantitative analysis. And that is exactly what Tonja Jacobi and Matthew Sag bring to bear in their fascinating article. They created a database of every argument transcript over a 63-year period, identifying more than 9000 incidents of laughter. They devised a method to account for the delay between a laughter-inducing event and the point at which “the laughter reaches the threshold of disruption that causes the court reporter to make a note of it.” (Comedy is all about timing, after all.) They deployed several approaches to the denominator problem, measuring laughter rates on a per-argument basis and as a function of each “speech event” and even the number of words spoken. And they cleansed the data of those instances where “laughter” lurks in less jovial words like “manslaughter.”
As an initial matter, Jacobi and Sag’s article provides a terrific highlight reel of moments that have elicited giggles and guffaws from the gallery: the Court’s epic twelve-laugh set in FCC v. Fox Television; the time an advocate confused Justice Kagan for Justice Scalia; Chief Justice Roberts ad libbing “I knew we should have paid that bill” when the lights went out; Justice Ginsburg dropping the mic after a deep-cut reference to “Bong hits for Jesus”; Justices Scalia and Breyer clashing in the carbohydrate culture wars over the merits of “sliced bread”; Justice Kennedy riffing on Einstein and the space-time continuum; and for you procedure enthusiasts out there, Justice Sotomayor openly lobbying that she not be assigned the opinion in Perry v. MSPB (a case about the jurisdictional boundary between federal district courts and the Federal Circuit in challenges to Merit Systems Protection Board decisions).
Ultimately, however, Jacobi and Sag argue that there is a decided dark side to the SCOTUS laugh track. Based on an admittedly “impressionistic” review of more than one thousand laughter events from 2010 to 2017, they conclude that “humor at the Supreme Court is not an equalizing force.” Instead, Justices use humor to highlight their superiority over the advocates before them. Not all laughs fit this profile. Jacobi and Sag recognize examples of “laughter reflecting incongruity,” prompted by “both absurdities and the surprising lack of fit between experience and expectation.” They also see instances where laughter acts as a “release valve.” There is even occasional “inferiority humor” involving “silliness or self-deprecation”—especially from Justices Breyer and Kagan. But Jacobi and Sag posit that, by and large, laughter “does not tend to indicate lighthearted, good-natured jesting.” Rather, “the Justices use it as a rhetorical weapon against their inferiors, as a form of advocacy against counsel arguing a side they will likely oppose, or to indicate that an advocate is inexperienced or doing badly.” As the saying goes, comedy is tragedy that happens to someone else.
Jacobi and Sag’s deeper statistical analysis reveals a number of interesting dynamics. First is a dramatic increase in laughter-inducing incidents over time: by any measure, laughter occurred much more frequently in the Rehnquist and Roberts Courts than in the Warren and Burger Courts. The authors consider a number of possible explanations for the increase. One was Justice Scalia joining the Court in 1986. As noted below, he places at the top of the laughter rankings by most measures. Another potential trigger that occurred at roughly the same time was the professionalization and concentration of the Supreme Court bar, which might have generated the sort of “exclusive club” among Justices and advocates that would be conducive to convivial banter. Jacobi and Sag also consider a more recent tipping point—1995, which they mark as the beginning of our current period of intense political polarization.
Looking at variations among cases, the authors show that the bigger the case the bigger the laughs, with more than double the frequency of Justice-inspired laughter in “legally salient” cases. And Jacobi and Sag provide a wealth of data on the individual Justices. Measured by laughter incidents per oral argument, Justice Scalia gets the gold medal, Justice Breyer the silver, and Chief Justice Roberts the bronze. Justice Frankfurter is the only Warren Court era Justice in the Top-10. (You can check Figure 2 of the article to see how your favorite Justices stack up.)
Jacobi and Sag then present data supporting their view that humor is a “weapon of advocacy.” The Justices are more likely to elicit laughter when the advocates they do not ultimately support are at the podium (the “agree/disagree” differential). And they are more likely to elicit laughter during the arguments of lawyers who ultimately lose the case (the “win/lose” differential), which could indicate that the Justices are getting laughs at the expense of weaker advocates. Finally, the authors explore the connection between the Justices’ use of humor and the advocate’s experience arguing before the Court. The Justices get more laughs when a SCOTUS novice is at the podium, which may reflect barbs directed at inexperienced advocates. Indeed, novice advocates endure much larger agree/disagree and win/lose differentials than their more experienced counterparts.
The insights lead Jacobi and Sag to question the notion that the Justice who gets the most laughs is truly the “Funniest Justice.” Humor is “a blood sport at the Court,” rather than “an empathetic attempt to equalize a hierarchical system.” Justice Scalia in particular exemplified this aspect of the Court’s practice; the authors note—as other scholars have—his “sarcasm and snark” and argue that he “put the punch in punchline.” According to the data, however, Justice Scalia is not alone. With some exceptions, “the overall humor of the Court is pretty mean.”
The Justices start their next gig on October 5. Although they’ll be here all week (and the following week, for that matter), it remains to be seen whether the October arguments—or those beyond—will generate any laughter data for scholars like Jacobi and Sag to collect and analyze. Last spring’s March and April sittings were postponed due to the COVID-19 pandemic, prompting the Court to hold remote oral arguments by teleconference in May. (The remote arguments did feature some amusing moments, but there was no gallery whose real-time reaction could be captured on a transcript.) Whatever broader lessons we should draw from the Justices’ use of humor during oral argument, we all hope for safe enough conditions that they can try their new material in front of a live studio audience. And we could certainly use a little laughter.
Jul 28, 2020 Jordan Singer
Court systems are large, complex, diverse, and resource-dependent organizations, a condition that shapes their character and behavior. It is surprising, then, how often court leaders fail to account for the organizational perspective in their decisionmaking. Amnon Reichman, Yair Sagy, and Shlomi Balaban illustrate this phenomenon, showing how the visionaries behind Legal-Net, Israel’s cloud-based judicial management system, were plagued by their failure to place its development in a broader organizational context.
Reichman and his colleagues trace the Israeli courts’ development of Legal-Net over two decades. Their research reveals a court system brimming with confidence that technology could be used to regulate judicial behavior, but insufficiently appreciative of the challenges of technological integration. The first version of Legal-Net was a flop: complicated and ambitious, it was a poor fit with existing court culture. A subsequent version better accounted for the court system’s unique character, but court leaders failed to anticipate how significantly its implementation would affect that character. In fact, the authors explain, the introduction of Legal-Net “heralded a tectonic shift in the judiciary’s work culture and work patterns,” as judges tailored their behavior toward the system’s incentives and away from their traditional roles. Today, it seems, the Israeli courts work for Legal-Net as much as Legal-Net works for them.
Legal-Net’s history begins in the early 1990s, when a handful of determined court administrators and judges began dreaming of a centralized and fully digitized judicial management system on a national scale. They imagined a “command and control” system that would rigidly structure and manage judicial performance by dictating how and when legal issues would be resolved. The system would structure the judicial process, telling judges which matters to address next in light of their existing caseload. This approach was compatible with Israel’s general “faith in technology as the bridge to a brighter and better future,” but wholly incompatible with reality on the ground. The proposal faced significant pushback from trial judges as well as insurmountable technical challenges, and it was abandoned after failing to attract a single viable development bid.
The failure of this first effort made clear the need to come at the problem from a broader organizational perspective. That meant responding to both the demands of the external environment and the needs of the court system’s internal stakeholders. To their credit, judicial leaders were up to the task. Looking outward, they contemplated how Legal-Net could ease—or hinder—the court system’s relationship with its external resource providers. One subtle but important example was Chief Justice Aharon Barak’s insistence in 2003 that Legal-Net be designed in accordance with the values of transparency and accountability. These values were central to Barak’s own beliefs about the judicial role in a liberal democracy, and embracing them in such a public way bolstered the court system’s resource acquisition strategy. If the courts presented themselves as open, transparent, and constructively self-critical, they would more likely be seen as legitimate and worthy of public support and financing.
Legal-Net’s proponents also turned their gaze inward. Their earlier failure taught them that they could not implement a significant technological change without buy-in from rank-and-file judges. They rescinded their demands for a top-down control system and reimagined the technology “as an integrative platform, where management pursues organizational goals, related to establishing a sense of shared mission and common practices of communication about such a mission.” This “managerial-integrative” approach eventually gained wider internal acceptance, and by the mid-2000s a new version of Legal-Net was ready for launch.
The new system allowed court administrators to create and disseminate statistical reports covering a wide range of judicial activity, including fine-grained comparative analyses of how individual judges managed their dockets. Court leaders viewed these reports as advancing system-wide transparency and accountability without compromising judicial independence. Judges would not be forced to decide cases in a certain way or within a certain timeframe, but they could be nudged toward efficiency “by way of harnessing judicial reputation.” The hope, in other words, was that judges would continue to address each individual matter with due care, but would also expedite the entire docket more efficiently than before.
But Legal-Net’s implementation provided a sharp reminder that organizations (like living organisms) are adaptive and will adjust their behavior to handle new environmental conditions. Once the reporting software was in place, Israeli judges felt pressure to resolve all their open matters quickly, even when individual issues might warrant extra time or attention. The result was greater case management efficiency, but also—in the authors’ view—a full-fledged reconfiguration of the judicial role. Reichman and colleagues explain that the arrival of Legal-Net epitomized “a transformation from a consciousness of retail, where the judicial attention was supposed to be fully devoted to the quality of resolution of individual cases, to an attitude of wholesale, where the judicial business is contextualized as a manufacturing process that is evaluated for its overall success in applying the law to a large number of cases as smoothly as possible.”
The lessons of the Legal-Net saga redound to court systems worldwide. The push for efficiency is familiar to American courts, which have increasingly turned to statistical reporting and managerial-judging techniques over the past half-century. As Israel’s experience shows, judicial efficiency can be an agreed-upon virtue yet pose delicate and difficult challenges in implementation. Separately, Legal-Net’s origin story is a valuable reminder that the process of organizational change and the effect of organizational change, while related, have different dimensions. To succeed, court systems (no less than other organizations) must structure their planning processes to account both for the current needs of their constituencies and for the unintended effects that transitions often bring.
Cite as: Jordan Singer,
The Machinery of Justice, JOTWELL
(July 28, 2020) (reviewing Amnon Reichman, Yair Sagy, Shlomi Balaban,
From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71
Hastings L. J. 589 (2020)),
https://courtslaw.jotwell.com/the-machinery-of-justice/.
