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Confronting Online Advocacy

Jeffrey L. Fisher & Alli Orr Larsen, Virtual Briefing at the Supreme Court, 105 Cornell L. Rev. __ (forthcoming 2019), available at SSRN.

How do the Justices (and their law clerks) know what they know?  More specifically, how do they acquire the information that they rely on when deciding cases? Alli Orr Larsen has done more than anyone in recent years to answer this set of questions. From exploring the role of amicus brief “facts” in Supreme Court opinions to tracing “in house” fact-finding by the Justices themselves, Larsen has shown how information comes to, and is sought by, members of the Court in surprising and perhaps unsettling ways. It is thereforeunsurprising that Larsen, with renowned Supreme Court advocate Jeff Fisher, have new and important information about how facts and arguments reach chambers today.

The starting point of Virtual Briefing is that the digital age has opened new avenues for reaching the Justices. As readers of this site will no doubt acknowledge, many in the legal profession gather crucial information about cases online. Whereas yesterday’s lawyer might have consulted bar journals and op-ed pages to glean legal insights, today’s lawyer has her pick of podcasts, blogs, and twitter feeds devoted to the Court. As one example, according to ABA estimates, there were a mere 100 legal blogs in 2002 and more than 4000 by 2016. These sources provide what the authors dub “virtual briefing”— written or oral online advocacy, outside the normal briefing process, aimed at influencing the outcome of a case at the Supreme Court.

A lesser team would simply say it stands to reason that the Justices and their clerks are paying attention to this new type of briefing. Larsen and Fisher, however, have the online equivalent of receipts. They identified Twitter accounts for 25 law clerks from the 2017–18 and 2018–19 Terms—37% of the clerks from this period. They then found that a substantial number of clerks “followed” accounts focused on Court commentary, including those of SCOTUSblog, Orin Kerr, and the now-defunct First Mondays podcast. Larsen and Fisher even show in a few instances that clerks began following subject-specific accounts around the time certain cases were pending—for example, a labor law blog when the public-unions case, Janus v. AFSCME, was argued.

Having shown that a sizeable number of law clerks tune in to Court commentators, Virtual Briefing then has the difficult task of showing that this made a difference. The authors are careful to acknowledge that they cannot prove so definitively. But they can provide examples where the evidence suggests that a particular blog post or podcast mattered—and they do so persuasively. As one example, Fisher and Larsen trace the infamous “broccoli horrible” argument from NFIB v. Sebelius, as it moved from the Volokh Conspiracy blog to Justice Scalia’s questions at oral argument to all three main opinions on the Commerce Clause.  With this and a few other powerful examples, they make a strong case that virtual briefing has mattered, even if one cannot say so with certainty or in quantifiable terms.

The article then turns from the descriptive to the normative: We have reason to believe that virtual briefing matters, now should we be concerned? To answer this question, the authors have another difficult task: trying to draw a line between making arguments with an intent to affect case outcomes in a blog post or podcast and making arguments with an intent to affect case outcomes in a bar journal or the op-ed page of The New York Times. Online commentators can respond to claims made at argument in real time (not days or weeks later) and online fora tend to lack the gatekeepers and fact-checkers associated with famed print publications. Taken together, these points mean that the Justices can “crowdsource” their arguments, often from potentially dubious sources, making virtual briefing different in kind from what has come before.

The ways in which virtual briefing is different can create clear problems. Virtual briefing can circumvent the adversarial process, as commentators can posit new arguments not made by the advocates at argument, and quickly enough to impact decision-making. And it can skirt the spirit of Supreme Court Rules on amicus briefs, which forbid non-amici from providing financial support for filing and require disclosure of non-amici authors. Needless to say, there are no transparency/accountability requirements when uploading a blog post or recording a podcast.

Virtual Briefing concludes by exploring several prescriptive measures. The authors acknowledge, however, that the most obvious solutions come with their own problems. For example, if the Court were to promulgate a rule restricting the posting of material online that appeared to function as a brief—and such a rule could pass constitutional muster—it is not clear to whom the rule would apply, how the rule would be enforced, and how the Court could separate virtual briefing from unobjectionable commentary. The authors ultimately call for enhanced transparency as the most sensible and realistic option. If a Justice encounters a new argument of interest from an online source, the Court could call for supplemental briefing—thereby bringing it “into the fold” of traditional briefing.

In the end, Virtual Briefing makes a valuable contribution by identifying and wrestling with an important and complex problem.  As the authors conclude, whatever happens with virtual briefing in the future, we should not proceed without discussion and critical thought. Thanks to Fisher and Larsen, we have it.

Cite as: Marin K. Levy, Confronting Online Advocacy, JOTWELL (September 4, 2019) (reviewing Jeffrey L. Fisher & Alli Orr Larsen, Virtual Briefing at the Supreme Court, 105 Cornell L. Rev. __ (forthcoming 2019), available at SSRN),

How Remedies Disappear

Leah Litman, Remedial Convergence and Collapse, 106 Cal. L. Rev.1477 (2018).

Leah Litman’s Remedial Convergence and Collapse highlights a common two-step phenomenon in the law of constitutional torts. First, the Supreme Court increases the standard for obtaining one remedy (“Remedy A”), relying in part on the availability of another remedy (“Remedy B”). The Court then increases the standard for obtaining Remedy B, relying in part on the availability of Remedy A. The result is that neither remedy is available. Across a range of remedial domains, the Court has imposed similar, high standards for relief, often citing the availability of other remedies that do not exist as a practical matter. Litman calls the similarity of the remedial standards “convergence.” The ultimate unavailability of any remedy? “Collapse.”

To illustrate her point, Litman focuses primarily on three mechanisms of constitutional enforcement that are of particular importance to policing and criminal justice: (1) qualified immunity; (2) federal habeas; and (3) the exclusionary rule. As Litman puts it, “[t]he standards for qualified immunity, habeas corpus, and exclusion of evidence have … converged around a similar, overarching principle that purports to select for unreasonably egregious actions.” (P. 1480.)

For example, for a damages suit to advance against a governmental defendant in an individual capacity, a plaintiff must demonstrate that the official’s actions violated clearly established law that a reasonable official would have known at the time of the violation. This is a high bar; qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Likewise, when a criminal defendant seeks to exclude illegally obtained evidence, “the same standard of objective reasonableness that [applies] in the context of a suppression hearing … defines the qualified immunity accorded an officer.” And Congress requires that if a state court has adjudicated a petitioner’s federal claim, that ruling must remain intact in the face of a habeas petition unless “the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” This standard has been interpreted to mean that state court’s decision is not “objectively unreasonable” “so long as ‘fair-minded jurists could disagree’ on the correctness of the … decision.”

The standards for these various remedies also converge in the level of generality with which courts are required to read prior cases. Across all three contexts, the Court has warned against defining the rules established by prior cases at a high level of generality. In the habeas context, litigants may not rely on new rules established after their conviction became final, absent rarely applicable exceptions; in determining whether a Supreme Court decision creates a new rule or instead applies an old rule, lower courts have been admonished not to define the old rule at a high level of generality. The Court has issued similar warnings in qualified immunity cases.

Convergence is surprising because these doctrines implicate different causes of action and defenses that arise from different sources of law. Section 1983 features broad language, purportedly applying to “[e]very person” whose federal rights have been violated by state officials, saying nothing about qualified immunity. By contrast, in the Antiterrorism and Effective Death Penalty Act, Congress expressly limited the reach of federal habeas to protect federalism and finality. And the exclusionary rule is a judicially-crafted doctrine that arises in criminal prosecutions. Still, as Litman demonstrates, similar, stringent standards govern these disparate contexts.

Despite the similar governing standards, the Court often cites the availability of one remedy as it denies another. When restricting the scope of the exclusionary rule, the Court has pointed to the availability of suits under Section 1983. Restrictive habeas cases rely on the availability of the exclusionary rule, even when exclusion likely would not have been available.1 Qualified immunity cases have relied on the availability of remedies in criminal cases, even when this is not so. Litman explains that the “convergence in the different remedial standards thus undermines the Court’s reassurances that another remedy will substitute for the remedy the Court has denied, because convergence means that all remedies will effectively be displaced when the court denies one remedy.” (P. 1510.)

This is an important observation. While the rights-remedies gap has long been an important topic in scholarship about constitutional torts, less attention has been paid to the common mechanisms that sustain and widen that gap. A generation ago, Daniel Meltzer suggested that “there is reason to doubt that ‘the central problems for constitutional law . . . are issues of the definition of rights rather than the creation of a machinery of jurisdiction and remedies that can transform rights proclaimed on paper into practical protections.’” As Chief Justice Marshall once admonished, it is odd for a court to engage in the work of “prescribing limits,” but then “declar[e] that those limits may be passed as pleasure.”

Litman’s work helps focus on that machinery of jurisdiction and remedies, and how that machinery is not living up to its transformative promise.

  1. Davis v. United States, 564 U.S. 229 (2011).
Cite as: Fred O. Smith, Jr., How Remedies Disappear, JOTWELL (July 31, 2019) (reviewing Leah Litman, Remedial Convergence and Collapse, 106 Cal. L. Rev.1477 (2018)),

The Center Cannot Hold

Evan Thomas, First: Sandra Day O’Connor (2019).

At the end of the Supreme Court’s October 2010 Term, George Washington University law professor (now President and CEO of the National Constitution Center) Jeffrey Rosen wrote a pointed essay for The Atlantic titled Why I Miss Sandra Day O’Connor. Justice O’Connor retired from the Court in January 2006, and Rosen was writing to bemoan the sharp conservative turn that he believed the Court had taken over the five years since Justice Samuel Alito had been confirmed as her successor. Although Rosen had strongly criticized O’Connor’s “pragmatic, split-the-difference jurisprudence while she was on the Court,” the utility of that approach—and the centrism it bespoke—had not only become increasingly clear in hindsight, but its absence in cases such as Citizens United v. FEC had become increasingly noticeable, and, to Rosen, distressing.

Eight years later, at the end of the Court’s first Term with its new, solidified five-Justice conservative majority, Evan Thomas’s breezy, thoughtful, and incisive new biography of Justice O’Connor leaves the same impression. The monograph, which the Justice authorized and in which she and her family encouraged colleagues and clerks to cooperate, is more than just a recounting of the high (and lower) points of Justice O’Connor’s remarkable (and remarkably well-documented) life and career and an engaging study of the first woman appointed to the highest Court in the land. It is also an elegy—for a moment in the political life of the country and in the perception (and internal politics) of the Supreme Court that has clearly passed. Exactly 100 years after William Butler Yeats warned that “the centre cannot hold,” Thomas’s volume is not just an accessible “intimate portrait” of someone who, in his words, “is easy to caricature and harder to understand;” it is a powerful reminder of the increasingly forgotten virtues of moderation, compromise, and civility—not just within the marble halls of One First Street, but on Main Street, as well.

O’Connor, as Thomas exhaustively documents, brought pragmatic sensibilities to the Court when she was appointed by President Reagan in 1981—sensibilities informed by her experience as both a state judge and state senator in Arizona. A judge as much as she was a Supreme Court Justice, that pragmatism often led her to decisions that eschewed broad theories in favor of formulations that appropriately balanced her view of the competing interests, even at the expense of (her own) analytical consistency. For instance, Thomas recounts some of what occurred behind the scenes in Central Virginia Community College v. Katz—what turned out to be the final decision in which Justice O’Connor participated. In that case, a 5-4 majority held that Congress has the power to subject non-consenting states to damages liability in federal court—to abrogate their sovereign immunity—when it enacts bankruptcy legislation under Article I of the Constitution. O’Connor, who had joined a series of earlier 5-4 majorities holding that Congress generally lacked the power to subject non-consenting states to such suits, had changed her mind—and joined Justice John Paul Stevens’ majority opinion without separate comment. As Thomas writes, “her reasoning was simple and, as ever, pragmatic: Bankruptcy laws cannot work unless states are treated like other creditors” Full stop.

Although other examples abound, Thomas also singles out O’Connor’s opinion for a four-Justice plurality in one of the “enemy combatant” cases, Hamdi v. Rumsfeld. Writing for herself, Chief Justice William Rehnquist, and Justices Anthony Kennedy and Stephen Breyer, O’Connor concluded that Congress had authorized the detention of U.S. citizens captured while allegedly fighting for the Taliban in Afghanistan when it authorized the use of military force in the fall of 2001, but that, balancing the detainee’s rights against the government’s interests, the Due Process Clause required more proof for the government’s case against the detainee before indefinite military detention could be authorized.

Dissenting (for once, from Justice O’Connor’s left), Justice Scalia did not pull his punches, decrying O’Connor’s opinion as “an approach that reflects what might be called a Mr. Fix-it Mentality.”1 As Scalia wrote, O’Connor “seems to view it as [her] mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions.”2 And yet, O’Connor’s careful, nuanced analysis has withstood the test of time. Not only have no U.S. citizens been subject to military detention on U.S. soil in the 15 years since that ruling, but, as Justice Breyer pointed out last month, the plurality’s nuanced analysis did not pre-judge an array of harder questions that have arisen in cases involving non-citizen detainees. As Thomas writes, “the Hamdi decision cemented O’Connor’s status as the true rudder of the Court”

Yet when O’Connor prematurely stepped down from the bench in 2006 to help care for her ailing husband, control of that rudder passed to Kennedy. Although it was clear by the mid-1990s that the Court’s ideologically divisive cases would typically come down to how Kennedy and O’Connor voted, they often took radically different paths even when reaching the same destination. Thus, although the Court clearly moved to the right in at least some respects when Alito replaced O’Connor, the real movement may have been the oscillations between the landmark cases in which Kennedy sided with the increasingly solid bloc of progressive Justices and those in which he sided with the conservatives. Thus, the period after O’Connor’s departure not only brought Heller, Citizens United, and Shelby County, but also Boumediene, Windsor, and Obergefell. The Justices may not have agreed with Kennedy, but it was in their interests to placate him—or, at the very least, to not alienate him.

On the far side of the October 2018 Term, it is impossible not to notice the absence of more moderate voices on the Court. From the highly unusual public airing in April of a months-long behind-the-scenes dispute in a series of capital cases to the tenor of some of the Justices’ higher-profile rulings in June, it is clear that “the justices have less reason to be conciliatory in either their reasoning or their tone in ideologically divisive cases.”3 In the process, the Court has come to resemble the country—two deeply entrenched blocs, each having a hard time seeing the arguments and principles that define the other side. And the Court may have reinforced such increasing polarization on multiple levels in its sharply divided ruling that challenges to partisan gerrymandering present non-justiciable political questions—a result from which Justice Elena Kagan and her three progressive colleagues dissented “with deep sadness.” These developments would not have sat well with O’Connor, a Justice for whom “[c]ivility, not snark, was the currency of discourse. Extremism of any kind was to be avoided. Absolutism was for demagogues.” (P. 360.)

In that respect, it is O’Connor, more than Kennedy, who is missing. More alarmingly, it is hard to imagine a scenario in the near or medium term in which it will be in any President’s political interest to try to bridge that gap, rather than appointing the most ideologically extreme candidate capable of gaining Senate confirmation.

O’Connor may have been “First,” but Thomas’s book all but hits readers over the head with the troubling specter that she might also have been the last of her kind. Her colleagues knew it, too. In a note to the Justice shortly after she announced her retirement in August 2005, Justice Scalia wrote that she had been “the forger of the social bond that has kept the Court together.” He wondered, “who will take that role when you are gone?” (P. 378.)

Fourteen years later, that question remains unanswered.

  1. Hamdi v. Rumsfeld, 542 U.S. 507, 576 (2004) (Scalia, J., dissenting).
  2. id.
  3. Stephen I. Vladeck, It’s Neil Gorsuch’s Supreme Court Now, Not Anthony Kennedy’s, Politico Mag. (April 2, 2019).
Cite as: Steve Vladeck, The Center Cannot Hold, JOTWELL (July 10, 2019) (reviewing Evan Thomas, First: Sandra Day O’Connor (2019)),

The Supreme Court is Broke, the Question is How to Fix It: Alternatives to Term Limits

  • Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade’s Whiplash, Tex. L. Rev. ___ (forthcoming 2019), available at SSRN.
  • Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. ___ (forthcoming 2019), available at SSRN.

The Supreme Court is broken, or so holds an emerging consensus. From the Senate’s refusal to consider Judge Merrick Garland’s 2016 nomination to the Court to the contentious 2018 confirmation of Justice Brett Kavanaugh to a string of 5-4 decisions in politically salient cases, many entailing overruling of long-standing precedent and dividing along the party of the appointing President. All suggest an institution facing deep questions of legitimacy. That apparent consensus yields numerous suggestions to reform, and thus save, the Court.

One idea gaining traction in academic and political circles, across the ideological spectrum, entails eliminating life tenure in favor of some form of 18-year term limits on the Justices. Structures, details, and implementation vary, but the common idea is that a Justice would serve as part of the active nine-member Court for 18 years and a new Justice would be appointed every two years. Supporters believe this will reduce the political intensity surrounding any appointment, eliminate the fortuity of how many appointments a President gets and when, remove the incentive to appoint ever-younger Justices, and perhaps remove the Court as a campaign issue. Two forthcoming papers question this emerging wisdom. Term Limits and Turmoil: Roe v. Wade’s Whiplash empirically exposes the doctrinal costs of term limits; How to Save the Supreme Court proposes alternatives that avoid those doctrinal costs.

In Term Limits and Turmoil, Christopher Sundby and Suzanna Sherry show what might have happened to the constitutional right to abortion recognized in Roe v. Wade if the Court’s membership changed every two years from 1973 (when Roe was decided) until 2019 (when President Trump would make the second appointment of his first term). Assuming a case allowing for reconsideration of Roe every two years (something the authors acknowledge is unlikely), the paper models seven scenarios based on three factors that might influence judges: the loyalty of a Justice to the nominating President’s political values, a Justice’s deference to precedent, and the moderating influence of the Senate confirming the nomination. Computer simulations of judicial votes determine the odds of prevailing precedent being overruled in a run of 10,000 cases. Their basic findings:

  • Where loyalty to the political values of the appointing President is the prevailing value, it is likely that controlling precedent would have been overruled three times: Roe would have been overruled in 1985, the case overruling Roe would have been overruled (reinstating constitutional protection for abortion) in 2009, and that case would have been overruled (eliminating constitutional protection for abortion) in 2017. Of course, that last overruling likely would not occur had Hillary Clinton won the 2016 presidential election and made the 2017 appointment. The triple reverse occurred whether the Justices were weakly, strongly, or moderately loyal; the intensity of loyalty increased the odds of overruling.
  • Deference to stare decisis, whether strong or weak, brings some doctrinal stability, with one likely overruling of Roe itself around 1989, but no subsequent overruling of that decision. But under a weak-deference model, the likelihood of overruling was within 10 points of 50 % (as Sundby and Sherry put it, within 10 points of a coin flip) at several points during the 45-year period. And, again, the constitutional right likely would have been reinstated by 2019 had Clinton prevailed in 2016.
  • High Senate influence, with and without the filibuster, similarly produces one likely overruling of Roe itself, tempering wild doctrinal swings.

Justices and commentators acknowledge that the Court changes with every new member, such that term limits create a new and different Court every two years. Doctrinal instability is an obvious consequence. The instability may not happen in the way this study suggests—it would take longer for cases to wind their way through the lower courts and to the Supreme Court to reconsider precedent. Sundby and Sherry identify an additional unknown—how lower courts and political branches will respond to doctrinal change, knowing that another switch may be on the horizon. Perhaps lower courts will ignore the new overruling precedent; perhaps anti-abortion states will continue to enact and enforce abortion bans, confident that a doctrinal turn is forthcoming. But this fascinating study offers a specific picture of the potential jurisprudential switchbacks.

Daniel Epps and Ganesh Sitaraman similarly recognize doctrinal instability as one of several defects in term limits. They offer two independent alternatives, each working not by shortening or limiting the term for which a Justice serves, but by expanding who is a Justice and what Justices comprise the Court for a given case or term. Three candidates for the Democratic presidential nomination—Beto O’Rourke, Pete Buttigieg, and Bernie Sanders—have expressed support for one or the other idea.

The first proposal is the “Supreme Court Lottery.” Every judge appointed to the court of appeals also would serve as an Associate Justice of the Supreme Court, functionally making the Court a body of 180 members. Cases would be heard by a randomly selected panel of nine Justices sitting for two weeks; judges would prepare for arguments at their home courts, travel to Washington for arguments, then return home to draft opinions. The next set of cases would be heard by a different randomly selected panel of nine. A judgment declaring a federal statute (although not a state statute or federal regulation) constitutionally invalid would require at least a 7-2 vote, and the Court would have mandatory jurisdiction if a lower-court declared a federal statute (although not a state statute or federal regulation) invalid. The nine Justices sitting during a two-week period also select cases for review, although granted cases would be heard by a different randomly selected panel. Epps and Sitaraman identify several benefits to this structure. It decreases ideological partisanship by limiting the power of one judge to pursue an idiosyncratic or ideological agenda in case selection or opinion writing over a long period. Case selection and resolution occur behind a “veil of ignorance,” as one judge does not know what cases she will hear (because they were selected by a different nine-person panel) or who will hear the cases she selects (because they will be heard by a different nine-person panel). And the seven-Justice supermajority requirement guards against radical doctrinal swings and may have a moderating effect on individual judges in drafting opinions, producing more “minimalist” doctrine.

Their second proposal is the “Balanced Bench.” It would establish a Court of ten Justices, five affiliated with each major political party. Those ten would select five additional lower-court judges to serve on the Court for a non-renewable one-year term; they must select the additional five unanimously (or at least by supermajority), at the risk of a loss of a quorum and inability to hear cases that Term. The system is analogous to civil arbitration, in which each side selects one arbitrator favorable to its side and the two arbitrators agree on a third “neutral” for the panel. This echoes previous proposals for making the Court explicitly partisan and politically balanced, allowing the institution to match the public perception. But by adding five neutral Justices agreed upon by both “sides” of the Court, it restores a modicum of non-partisanship, as big cases cannot be decided by simple majorities along party lines.

Epps and Sitaraman address and rebut a host of constitutional objections to both proposals. These include concerns about limiting the presidential appointment power, vesting appointing authority in the Justices themselves, imposing a supermajority voting rule on the Court, and having judges serve on courts other than the ones to which they were appointed. Both proposals dig at structural questions of what constitutes a “court” and what “one supreme Court” requires under Article III—Epps and Sitaraman insist a tribunal qualifies as one Court even if its membership is non-permanent or rotating, pointing for support to the Foreign Intelligence Surveillance (FISA) Court and to the original Circuit Courts under the Judiciary Act of 1789. The most serious objection involves partisan-balance requirements, which limit the President’s appointment discretion. They respond that Presidents of both parties have accepted partisan-balance rules in administrative agencies and a judicial-nominations commission for the District of Columbia courts, so might accede to a similar settlement as to the Supreme Court. Congress also could achieve partisan balance through a Senate rule refusing to confirm any nominee not from the proper party; this solution does not limit the President’s power to nominate anyone he wants, but he knows that only a member of the proper party will be confirmed.

Both articles achieve what the best legal scholarship should—offering practical guidance to those charged with making and implementing legal choices. Facing an uncertain political situation about the present and future of the Supreme Court, the articles expose what is constitutionally possible and practically workable. What those charged with implementing structural choices do with this information is up to them.

Howard M. Wasserman, The Supreme Court is Broke, the Question is How to Fix it: Alternatives to Term Limits, JOTWELL (June 5th, 2019)(reviewing ; Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade’s Whiplash, Tex. L. Rev. ___ (forthcoming 2019); Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. ___ (forthcoming 2019)).

An Erie Tale

Brian L. Frye, The Ballad of Harry James Tompkins, 52 Akron L. Rev. 531 (2019).

Although Westlaw contains thousands of cases with a party named “Erie,” there is only one Erie. This abridged citation evokes expansive concepts. Erie is shorthand for normative and descriptive accounts about how the constitutional system operates, the origins of legal rules, and the nature of judicial reasoning. Invocations of Erie can shimmer with veneration, prickle with disdain, or tingle with dread. Either way, references to Erie pervade scholarship and case law.

Despite the myriad meanings that Erie has acquired, there was until now a consensus about the underlying facts. Late on a dark night in Pennsylvania, Harry Tompkins was walking home on a path parallel to railroad tracks. A protrusion from a passing train knocked him beneath the wheels, which severed his right arm. Trains are not supposed to have protrusions. The railroad therefore was liable for negligence if it owed Tompkins a duty of care. Pennsylvania law rejected a duty of care because it deemed Tompkins a trespasser even though he was on a well-worn path. Tompkins’ lawyers wisely did not sue in Pennsylvania. Instead, they sued in a federal court in New York because they anticipated that the court would ignore Pennsylvania law in favor of “general law.” This strategy led to a large but short-lived jury verdict. The Supreme Court held on appeal that the trial court should have applied Pennsylvania law. On remand, Tompkins received no compensation for his life-changing injury.

Critics and defenders of Erie generally agree that Tompkins caught a tough break under a harsh definition of trespassing. Scholars sometimes frame the case as an example of how even progressive judges—such as Erie’s author, Louis Brandeis—may sacrifice an individual plaintiff’s welfare in pursuit of broad legal ideals. But what if Tompkins actually was trespassing far more directly than generations of lawyers have assumed? The Erie decision was never really about the facts, but perhaps the facts were not even real.

Brian Frye’s fascinating new article presents an extensively researched argument suggesting that Tompkins misrepresented the accident’s cause. Rather than walking home, Tompkins may have been attempting to hitch a ride on the passing train. He was unemployed and the train was destined for a city with more opportunities than the small town where he lived. Climbing onto moving trains was common during the Great Depression. Severed limbs—or worse—were a grim consequence for thousands of riders.

Frye acknowledges the impossibility of unearthing the truth eighty-five years after the accident. But his critical analysis of transcripts and exhibits suggests an alternative version of the canonical story. In a nutshell, Frye contends that Tompkins’ account is implausible because: (1) Tompkins saw the train’s headlights while it was approaching him head-on from hundreds of feet away; (2) the train’s maximum possible speed was at least 70% slower than Tompkins alleged (about 8-10 mph, rather than 34-35 mph); (3) the only cars with potential protrusions were in the middle and back of the train, so Tompkins could have been hit only after at least 640 feet of the train had passed him; (4) if Tompkins was moving in the direction that he claimed, he would have left the vicinity of the tracks before encountering the engine, let alone the relevant cars; and (5) there was ample room beside the path for Tompkins to veer away from the train while continuing to walk toward his house.

These findings raise a puzzling question: why did Tompkins not step aside during the long time that a large and noisy train passed within several inches of him? Tompkins testified that he felt no need to avoid the train and that his preferred path was safer than adjacent land further from the tracks. But even the appellate opinion affirming the verdict called Tompkins’ account “patently absurd.” He nonetheless prevailed on appeal because the deferential standard of review did not provide a basis for reversal. The question thus remains: did the accident really happen the way Tompkins alleged, such that he spent a long time walking within inches of a rumbling freight train that he easily could have sidestepped?

Any challenge to Tompkins’ testimony faces a daunting hurdle: the wheels of the train indisputably severed his arm. There are not many ways this accident could have happened other than the way that Tompkins alleged and that the jury apparently accepted. An alternative account therefore bears a heavy burden of persuasion.

Frye assumes this burden while acknowledging that he is relying on speculation and inferences that he cannot definitively prove. He marshals evidence suggesting that Tompkins was trying to hitch a ride and slipped. The jury could have surmised that Tompkins was trying to board the train and nevertheless awarded him compensation because of his serious injury. An especially peculiar fact is that two young men called an ambulance almost immediately after the accident, then vanished before the ambulance arrived. Local residents did not recognize these elusive witnesses. Their presence on an obscure path at 2:30 a.m. concurrently with both Tompkins and the train is a remarkable coincidence. Frye speculates that these men were fellow rail-riders.

One might wonder why this speculation matters. After all, Erie is not cited as a tort case in which the finer points of trespassing are relevant. Erie is instead invoked to support abstract principles that are only nominally connected to Mr. Tompkins’ circumstances. Yet this nominal connection is what makes Frye’s research salient.

Facts are the foundation from which law evolves. An accurate account of a record can inform our understanding of how judges engage in the complex process of turning a dispute into a precedent. Frye’s article is therefore a welcome addition to a growing body of literature upending conventional accounts of historically important cases. Examples of this literature include the “Stories” line of textbook supplements from Foundation Press and Dale Carpenter’s illuminating book Flagrant Conduct: The Story of Lawrence v. Texas.

A revised understanding of Erie would add additional dimensions to an already multifaceted case. For example, Erie is often taught in Civil Procedure courses. Yet presumably few instructors use the case as a vehicle for exploring how juries evaluate evidence in a broader social context. If Frye is correct, then the jury apparently accepted implausible testimony because the railroad’s deep pockets were a substitute for a social safety net that Congress had only just begun to construct.

Moreover, if Tompkins’ lawyers were complicit in crafting misleading testimony, or looked the other way, then Erie would become a vehicle for analyzing professional responsibility and Fed. R. Civ. P. 11. Modern scholarship about Tompkins’ lawyers has focused on their ostensibly clever effort to obtain favorable law by forum shopping. Yet this account emerges in part from statements by the lawyers that were intended for posterity and may have exaggerated their foresight. Some evidence suggests that the lawyers filed in the Southern District of New York for their own convenience and only later discovered that this decision facilitated a favorable choice of law. Even if the lawyers accurately summarized their effort to obtain favorable law, Frye’s analysis implies that they were less candid about efforts to obtain favorable facts.

Although Frye’s analysis is diligent and engaging, the record is sufficiently ambiguous that some readers might not endorse his conclusions. Indeed, I would like to see additional evidence before definitively impugning Tompkins or his lawyers. But even if readers are not convinced, they likely will be intrigued. And thus Erie acquires yet another layer of mystery.

Cite as: Allan Erbsen, An Erie Tale, JOTWELL (May 23, 2019) (reviewing Brian L. Frye, The Ballad of Harry James Tompkins, 52 Akron L. Rev. 531 (2019)),

Is Personal Jurisdiction Constitutionally Self-Enacting?

A. Benjamin Spencer, The Territorial Reach of Federal Courts, __ Fla. L. Rev. __ (forthcoming 2019), available at SSRN.

Federal Rule of Civil Procedure 4(k) generally limits the scope of a federal district court’s personal jurisdiction to that of the state in which it sits. We have this paralleling of state- and federal-court personal jurisdiction despite the fact that the Fourteenth Amendment limits only the states’ exercise of personal jurisdiction while it is the Fifth Amendment that presumptively regulates the federal exercise of that same power. Building upon this distinction, Benjamin Spencer, in his dual role as a preeminent procedural scholar and member of the Judicial Conference Advisory Committee on Civil Rules, argues that we should decouple federal and state court personal jurisdiction doctrine. You should give this short, but thought-provoking, essay a read not only because Spencer is one of the top proceduralists writing today, but because you could well be working with his revised Rule 4(k) soon.

Spencer defends a radical redrafting of Rule 4(k), suggesting as follows: “All process other than a subpoena may be served anywhere within the territorial limits of United States. Nothing in these Rules limits the personal jurisdiction of a district court.” Under his proposal, federal courts would take personal jurisdiction by engaging in an International Shoe analysis that focuses upon contacts with the nation as a whole—not merely contacts with the state in which the federal court sits, as is the case under current practice.

The basic premise of Spencer’s nationwide-contacts approach has great intuitive appeal. The contacts analysis under International Shoe focuses upon the relationship between the defendant and the relevant sovereign that empowers the court with authority. In state court, one rightly focuses on contacts between the forum state and the defendant, as the forum state is the relevant sovereign. By analogy then, in federal court the International Shoe contact analysis should focus upon contacts between the nation as a whole and the defendant, as it is the nation as a whole that acts as the relevant sovereign in such an instance. The Supreme Court flirted with the notion that nationwide contacts are relevant in a Fifth Amendment International Shoe analysis in the past, most prominently in Justice Kennedy’s concurring opinion in J. McIntyre Machinery v. Nicastro and leaving the question open in other cases. But it has failed to reach a holding on this issue.

Spencer lays out several policy goals that his proposal would achieve. His revised Rule 4(k) eliminates the current state of affairs in which different federal district courts possess differing scopes of personal jurisdictional authority merely because they sit in different states. Eliminating this non-uniformity enhances efficiency, consistency, and predictability in civil litigation. His revised Rule 4(k) ensures that a federal forum exists in every state for the adjudication of civil suits that have federal subject matter jurisdiction. His revised Rule 4(k) avoids Rule 12(b)(2) dismissals of prima facie valid claims, which otherwise have subject matter jurisdiction and proper venue in federal court, where the forum state takes a different approach to personal jurisdiction. Finally, this nationwide personal jurisdiction approach is easier to understand and apply than our current forum-state-linked analysis.

Spencer provides a forceful rebuttal to potential Erie-based concerns with his approach. He acknowledges that his revised Rule 4(k) would create an outcome-determinative difference that could induce forum shopping among state and federal courts. Nevertheless, Spencer notes that the Supreme Court does not treat outcome determination as a talisman and, moreover, Erie has never been applied to jurisdictional analyses.

Finally, Spencer contends that his proposed revisions do not require an Act of Congress. Relying upon his past work, Spencer argues that current Rule 4(k) is ultra vires under the Rules Enabling Act. The REA prohibits the Supreme Court from promulgating rules that speak to subject matter or personal jurisdiction. Current Rule 4(k) must go, in Spencer’s view. The beauty of revised Rule 4(k) is that it does not speak to personal jurisdiction at all; rather, his revision takes the Rules “out of the business of delimiting the jurisdictional reach of the federal courts.” In Spencer’s view, with the current jurisdiction-delimiting version of Rule 4(k) struck, the federal district courts would have self-enacting personal jurisdiction flowing from the Fifth Amendment because he concludes that “federal courts do not require statutory authorization to exercise territorial jurisdiction over litigants.”

It is at this last step—Spencer’s posited self-enacting personal jurisdiction authority for federal courts flowing from the FifthAmendment—that procedural scholars should stay tuned. If we were discussing the Fourteenth Amendment’s regulation of the state’s ability to take personal jurisdiction, most would agree that personal “jurisdiction is not self-executing” and that federal due process does not compel states to open their courts. The crux of Spencer’s argument is that personal jurisdiction in federal court should not be analyzed under the Fourteenth Amendment analysis, but the Fifth Amendment. Hence, he has room to make his contention.

This is not to say that we have a consensus that the Fifth Amendment self-enacts personal jurisdiction authority for the federal courts. Far from it. We face a dearth of case law on this Fifth Amendment point. And at least one scholar, in another great new article, takes the opposite position from Spencer on this point.

I, for one, look forward to Spencer’s continued work on this very question of self-enacting personal jurisdiction authority for federal courts. It is bound to be a fascinating dialogue.

Cite as: Lumen N. Mulligan, Is Personal Jurisdiction Constitutionally Self-Enacting?, JOTWELL (May 7, 2019) (reviewing A. Benjamin Spencer, The Territorial Reach of Federal Courts, __ Fla. L. Rev. __ (forthcoming 2019), available at SSRN),

Accountability Requires Tenacity

Law Clerks for Workplace Accountability, Public Comment On The Judicial Conference of the United States’ Proposed Changes to the Code of Conduct for U.S. Judges and Judicial Conduct & Disability Rules.

In 2017, United States District Court Judge Lynn H. Hughes of the Southern District of Texas mused, “It was a lot simpler when you guys wore dark suits, white shirts and navy ties… We didn’t let girls do it in the old days.” The Assistant U.S. Attorney appearing before Judge Hughes that day, Tina Ansari, believed Hughes’ comments were aimed at her, something Hughes disputes. The Fifth Circuit reversed the judge’s merits decision in Ansari’s case. It also scolded the judge for his courtroom remarks, calling them “demeaning, inappropriate and beneath the dignity of a federal judge.”

Fast forward to 2019. Judge Hughes summarily dismissed Ansari from his court. She appeared in his court four days later. Again, without explanation, he dismissed her. His reason? Judge Hughes—still smarting from the Fifth Circuit’s comments—explained that “Ms. Ansari is not welcome here because her ability and integrity are inadequate.”

This story may sound like an unusual example of one female lawyer’s unfortunate experience with one federal judge. I and many other women are here to tell you it is not. Undoubtedly, plenty of members of the judiciary have positive and respectful relationships with the women with whom they work. At the same time, as with any profession, the federal judiciary is not immune to sexual harassment, gender discrimination, and complicity in an environment that creates fertile ground for those behaviors. Recently approved changes to the Code of Conduct for U.S. Judges and Disability Rules represent a recent effort to improve the judicial workplace for women. Important Public Comment from Law Clerks for Workplace Accountability (“LCWA”) represent the kind of tenacity necessary to ensure real change takes place.

In 2017, Heidi Bond and Emily Murphy first went on the record about Ninth Circuit Judge Alex Kozinski’s harassment of them as law clerks. Following their courageous act, other clerks came forward, and Kozinksi resigned. In response, Chief Justice Roberts acknowledged that even the federal judiciary was going to have its #MeToo moment. In his 2017 annual report, Roberts explained that he had appointed a working group to undertake a “careful evaluation of whether [the judiciary’s] standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate to ensure an exemplary workplace for every judge and every court employee.”

In 2018, James Duff, the Director of the Administrative Office of the Courts, formed the Federal Judiciary Workplace Conduct Working Group, comprised of eight judges and court administrators. Although former-law-clerk reports of sexual harassment inspired the creation of this group, no current or recent former law clerks were members. This oversight inspired a group of former law clerks to form LCWA. LCWA contributed to the Working Group’s work, but it never had a seat at the decision-making table.

In June of 2018, the Working Group released its report, which made three broad recommendations: (1) revise the judiciary’s existing codes of conduct; (2) improve procedures for reporting inappropriate behaviors; and (3) increase efforts to educate and train judges and other employees. The LCWA lauded many aspects of the Working Group’s report, including its recommendation that the Judicial Conference create a national Office of Judicial Integrity. Yet, it had its criticisms as well, namely that the report’s proposals were often vague.

In September 2018, and in response to the Working Group’s report, the Judicial Conference published changes to the Code of Conduct for U.S. Judges (“Code”) and the Judicial Conduct & Disability Rules (“Rules”). Like the Working Group’s report, there was much to commend. Revised Canon 3 provides that judges “should not engage in behavior that is harassing, abusive, prejudiced, or biased.” The Rules define cognizable misconduct as including “engaging in unwanted, offensive, or abusive sexual conduct, including sexual harassment or assault.” Finally, Canon 3 now states that judges should take appropriate action when learning of these types of behaviors, whether that behavior be from a fellow judge, a court employee, or lawyer.

The LCWA celebrated the progress made, but identified numerous deficiencies. The LCWA’s work is thorough, so I will summarize a few of the critical shortcomings it brings to light.

First, neither the Rules nor the Code provide a mechanism for reporting charges of judicial misconduct to the Administrative Office. There are no apparent mechanisms to track any reports made to the AO. This leaves the AO and the judiciary unable to assess and appreciate the scale of the problem before it. At the very least, the revised provisions should provide for mandatory reporting and tracking of misconduct charges. Only then, as the LCWA points out, will the judiciary “better understand the scope of the problem and how best to remedy it.”

Second, and relatedly, the provisions regarding public disclosure of misconduct are weak. If a complaint is dismissed because a judge resigns, no public disclosure is required. If the complaint is settled privately, public disclosure is prohibited. But we know that hiding sexual harassment allegations is a conduit to their repetition. While the Conference’s desire to protect judges is understandable, that concern should be outweighed by the judiciary’s obligation to maintain the public trust. This kind of transparency, including not just reporting individual claims but also aggregate annual reporting of misconduct allegations, the LCWA argues, is required to restore that trust.

A final critique of the Code and Rules goes to the heart of the process. The Rules provide that the judges will regulate themselves. When an allegation of misconduct is made, the Rules allow for a judge or group of judges to both investigate and adjudicate the charge. As the LCWA points out, there are myriad problems with this approach in the context of sexual harassment charges. Judges are not trained to investigate these types of claims. Victims are unlikely to feel comfortable sharing their experiences with a judge. Investigation and adjudication are two distinct strands of the process, and the lack of clarity in the revised rules about how to separate the two will lead to confusion. The LCWA argues that there should be an independent process to evaluate claims.

In addition to the LCWA comments on the Code and Rules, the group reiterates its concerns from earlier comments that remain unaddressed. These include a request to create a national, confidential reporting system for harassment claims; establishment of a standing body within the AO to assess and examine whether these (and other) changes are working; and a requirement—not an option—that all federal courts address the issue of harassment. Most paramount in the LCWA comments, in my opinion, is that there has been no reckoning. Much of the response to the 2017 accusations has been forward-looking, which is a good, but not enough. The LCWA asks that the AO conduct a climate survey of court employees to get a real sense of workplace experience. Only then can the judiciary “understand how harassment has been allowed to flourish in the past and how prevalent misconduct currently is.”

The LCWA’s tenacity is making a difference. In the 2018 Year-End Report, the Chief Justice again addressed the judiciary’s work in ending “inappropriate conduct in the workplace.” He updated us on progress—the Working Group, the revised Code and Rules, and new Federal Judicial Center training materials. He admitted that the work is not done, stating that “[t]he job is not finished until we have done all that we can to ensure that all of our employees are treated with fairness, dignity, and respect.” The Chief Justice is taking this issue seriously and understands only a dent has been made. The LCWA is to be commended for holding the judiciary’s feet to the fire. Their work honors the brave individuals who have already stepped forward and helps to protect those court employees who may endure treatment yet to come to light.

Cite as: Brooke D. Coleman, Accountability Requires Tenacity, JOTWELL (April 23, 2019) (reviewing Law Clerks for Workplace Accountability, Public Comment On The Judicial Conference of the United States’ Proposed Changes to the Code of Conduct for U.S. Judges and Judicial Conduct & Disability Rules),

Plea Bargaining with Juveniles

Erika N. Fountain & Jennifer L. Woolard, How Defense Attorneys Consult With Juvenile Clients About Plea Bargains, 24 Psych. Pub. Pol'y & L. 192 (2017).

Criminal cases—or for that matter civil ones—don’t go to trial any longer. For a variety of reasons, in criminal matters, plea bargaining has replaced trials. This has occurred in both juvenile and adult cases.

Most juvenile and adult cases differ significantly, however. The justification is the alleged purpose of juvenile courts to rehabilitate youth. This rehabilitation supposedly involves the judge as an understanding, parent-like mentor to the child.

Because plea bargaining effectively bypasses this process, the study of plea bargaining’s effect on youth is particularly important. Currently, the special procedures in juvenile court—such as confidentiality—have led to little check on the prosecution of youth. This has resulted in some bad consequences including the false detention of children, as illustrated in the Kids for Cash documentary.

Erika Fountain and Jennifer Woolard have endeavored to study the plea-bargaining process for juveniles. Their article is part of a series of work, some of which is included in a dissertation.

In the article, the authors describe the results of interviews with defense attorneys who represent juveniles. Before detailing these conversations, they cite some of the literature that shows the difficulty of decision-making by youth who undergo significant change during their childhood. They also point out that, though youth are under the control of their parents, they must independently decide whether to a take a plea. Attorneys can make this situation more palatable. Previous research has shown, however, that juveniles are overly swayed by their attorneys’ recommendations.

This article is the first to study the strategy that attorneys use with juveniles when giving them advice about plea bargains. Attorneys are specifically tasked with the job of preparing their clients to make “knowing, intelligent, and voluntary plea bargain decisions in juvenile court.” In their study of juvenile plea bargaining, the authors focus on a single public defender office on the east coast. Studying one office permitted them to limit variation among lawyers by keeping consistent matters such as caseload. In the semi-structured interviews, the authors asked the eighteen participating lawyers questions regarding the plea process, questions about their most recent client, and general questions about working with juveniles.

So much about juvenile plea bargaining can be learned from this important study. For example, prosecutors made most plea offers on the day of trial such that lawyers reported lacking sufficient time to discuss the offers with their clients. The authors recognize that these circumstances are problematic. I would argue that they necessitate action by the states—specifically, the enactment of laws requiring juveniles be given sufficient time to consider plea offers particularly to ensure that they understand them. Indeed in the context of age discrimination there is a law that requires older people be given a certain amount of time to decide whether to take a severance agreement. In the current context of youth losing their freedom, I would argue that at least some similar protections should be put into effect.

The authors also describe the timing of the lawyers’ discussion of certain subjects with their juvenile clients. It was interesting to learn that many lawyers did not discuss what clients were giving up until after they decided to take a plea. Additionally, only about a quarter of the lawyers described collateral consequences to their clients, such as the possibility of limited educational opportunities and job prospects if they pled guilty.

Also studied were the top reasons for juveniles taking pleas. They included to avoid incarceration and to prevent having to see witnesses testify against them. Additionally, two more reasons were mentioned—to avoid the time a trial would take and to avoid prosecution in adult court. The latter, which was reported by 22% of the lawyers who were interviewed, is highly problematic for its coercive nature.

The study also describes different approaches to how possible pleas can be discussed with youth. In explaining these approaches, the lawyers in the study acknowledged their significant influence over their client’s decisions and juveniles’ general inability to look into the future very far.

The authors conclude that policy changes need to be considered. These include additional time for a youth to consider a plea offer along with an approach to ensure that the juvenile understands the plea offer and the possible consequences.

This is an extremely important study that may incentivize states to require prosecutors to slow down plea bargaining in the juvenile context. If the states are serious about the so-called rehabilitative process for juveniles, they should deliberately and carefully proceed with plea bargaining with youth.

Cite as: Suja A. Thomas, Plea Bargaining with Juveniles, JOTWELL (April 9, 2019) (reviewing Erika N. Fountain & Jennifer L. Woolard, How Defense Attorneys Consult With Juvenile Clients About Plea Bargains, 24 Psych. Pub. Pol'y & L. 192 (2017)),

When American Pipe Met Erie

Stephen B. Burbank & Tobias Barrington Wolff, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018).

The White House is engulfed in scandal. Prosecutors and congressional investigators tighten their net around a beleaguered President and his inner circle. A constitutional crisis looms, and our nation’s faith in the rule of law hangs in the balance.

As the legal and political drama of our current moment unfolds, it remains to be seen whether today’s Supreme Court will play the same role that it was called upon to play in 1974. The current Court has, however, immersed itself in another 1974 classic: the eponymous tolling rule of American Pipe & Construction Co. v. Utah. Twice in the past two years, the Court has revisited American Pipe tolling: first in California Public Employees’ Retirement System v. ANZ Securities, Inc. (CalPERS) and then in China Agritech, Inc. v. Resh. In the wake of these decisions, Steve Burbank and Tobias Wolff provide a comprehensive and much-needed exploration of “the source, reach, and limits of the tolling rule for federal class actions that originated in American Pipe.” They persuasively argue that the Supreme Court has lost its way, misperceiving the underlying rationale and purpose of American Pipe tolling.

Under American Pipe, the commencement of a class action in federal court tolls the statute of limitations as to all purported class members. This tolling rule means that would-be class members need not overwhelm courts with precautionary individual lawsuits (or motions to intervene in the putative class action) solely to avoid a time bar in the event the federal court denies class certification. And in cases where the federal court does certify a class action, American Pipe means that class members may opt out—a right guaranteed for Rule 23(b)(3) class actions—without fear of their subsequent suits being time-barred.

Burbank and Wolff contend that American Pipe is a federal common law rule that aims to effectuate the provisions and policies of Rule 23. They support this view with a sophisticated examination of the doctrinal thicket that encompasses Erie, Hanna, the Rules of Decision Act (RDA), and the Rules Enabling Act (REA). On their account, the Federal Rules of Civil Procedure have the status of “Acts of Congress” for purposes of the RDA’s allowance that a federal court need not follow “[t]he laws of the several states” when “Acts of Congress otherwise require.” Federal courts, therefore, may “carry into effect the policies of Federal Rules of Civil Procedure through judge-made federal common law.” Properly understood, Rule 23 is not the direct source of American Pipe’s tolling rule—that view could be problematic under the REA and its provision that Federal Rules of Civil Procedure “shall not abridge, enlarge, or modify substantive rights.” Rather, Rule 23 is the source of authority for a federal common law tolling rule—the tolling rule that the Court has articulated in American Pipe and its progeny.

In support of this argument, Burbank and Wolff distinguish between three distinct types of federal judicial lawmaking. One type concerns only “the internal administration of federal court adjudication.” This kind of lawmaking—federal forum non conveniens law is an example—has no preemptive effect in state court proceedings. A second form (sometimes called “substantive” federal common law, although Burbank and Wolff resist that nomenclature) directly addresses “questions of liability or regulatory policy” in areas of “uniquely federal concern,” or where needed to resolve “competing claims of interested states.” This kind of federal common law is binding in both federal court and state court, and it preempts contrary state law.

American Pipe tolling falls into a third category—one that “aims to preserve and promote the provisions of and policies underlying a procedural rule by shaping the behavior and rights of parties in both the same and subsequent proceedings.” Burbank and Wolff point to federal preclusion law—as the Supreme Court described in Semtek—as another example of this third category. Although federal common law will usually borrow state-law preclusion rules for cases that are in federal court based on diversity jurisdiction, “a federal preclusion standard might be necessary to enable district courts to enforce procedural policies like those found in the discovery rules in cases where borrowed state preclusion law would not adequately do so.” This third kind of federal common law can displace contrary state law but in a different way than “substantive” federal common law. States are not obligated to follow American Pipe for class actions filed in state court. They need not allow class actions at all. But state courts must recognize—and state law must defer to—the tolling effect of a federal class action.

Burbank and Wolff then explore the potential distinction between the following kinds of federal class actions that would be the basis for American Pipe tolling: (1) federal class actions based on a federal cause of action with a federal statute of limitations and (2) federal class actions pursuing state-law claims over which federal courts exercise diversity jurisdiction. The first category is in the “wheelhouse” of federal judicial lawmaking. Even for the diversity-jurisdiction class actions, however, Burbank and Wolff argue that subsequent courts—including state courts—must recognize the tolling effect of the federal class action under American Pipe’s federal common law rule. The only situations where a contrary tolling rule provided by state law should apply would be where that state rule is “unambiguously more generous than the suspension rule of American Pipe,” or—perhaps—where there is established state law that “would unambiguously afford absentees in the federal class action adequate time (whether more or less than suspension) either to seek to intervene or to bring independent actions if certification is denied or they opt out of a certified class.”

Finally, Burbank and Wolff turn to the Supreme Court’s recent decisions in CalPERS and Resh. They are especially critical of CalPERS, a 5-4 decision holding that the 3-year deadline imposed by Section 13 of the 1933 Securities Act was a “statute of repose” to which the American Pipe tolling rule does not apply. The CalPERS majority mistakenly viewed American Pipe as a form of “equitable tolling,” based on an “impoverished account of the sources of federal law” and a failure to appreciate the true justification for American Pipe—to carry into effect the provisions and underlying policies of Rule 23. Such a rule of federal common law is distinct from rules based on the power of federal courts to apply general principles of equity.

The Resh decision is—at least partially—“an improvement on the missteps the Court made in CalPERS.” Although Burbank and Wolff take no position on Resh’s ultimate conclusion that American Pipe tolling does not apply to successive class actions, they applaud the Resh Court’s recognition that the American Pipe tolling rule is driven by the “policies of ‘efficiency and economy of litigation’ bound up in Rule 23.” Resh is a “mish-mash,” however, because it also made problematic references to equitable tolling and failed to emphasize the particular need to preserve opt-out rights in Rule 23(b)(3) class actions. In the final analysis, Resh “leaves considerable room for improvement in future cases,” but there is also cause for modest optimism in that Resh “can be read as shifting the primary focus back to the policies of Rule 23.”

There may be more chyrons on today’s screens (and more screens, period), but the parallels between today and 1974 are hard to ignore. Burbank and Wolff provide a compelling critique of the Supreme Court’s contemporary reboot of American Pipe. Their article is a must-read contribution whether readers are interested in the specific relationship between class actions and statutes of limitations or in broader questions about the sources, scope, and propriety of federal judicial lawmaking.

Cite as: Adam N. Steinman, When American Pipe Met Erie, JOTWELL (March 26, 2019) (reviewing Stephen B. Burbank & Tobias Barrington Wolff, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018)),

A Primer on Opioid-Epidemic Litigation

Abbe R. Gluck, Ashley Hall, & Gregory Curfman, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, 46(2) Journal of Law, Medicine & Ethics 351–366 (2018), available on SSRN.

Susan Sontag documented how illness becomes metaphor, wrapped in “punitive or sentimental fantasies.” The bubonic plague is no longer a mere disease but an instrument of wrath and moral judgment on the failings of a community. A popular mythology morphed tuberculosis into a romanticized episode afflicting the reckless, poor, sensual consumed by their repressed passions. Cancer turns into the disease of the capitalistic affluent; AIDS becomes a social category to punishing deviance. In these cultural myths disease expresses and causes character and thus contains moral judgment. Disease becomes shameful, a stigma to hide and wrap in guilt. Sontag argued that such myths can survive irrefutable human experience and medical knowledge. Treating illness as metaphor is obviously dangerous and misguided. Sontag calls on us to de-mystify illness and become resistant to metaphoric thinking.

The illness of our time is the opioid epidemic. We are in the process of characterizing and metaphorizing it. Litigation plays an important role in this process. As the debate about (oh what to call it?) non-party/national/universal/cosmic/high-volume/prospective-repetition injunctions has reminded us, to give something a name is to classify it and with that classification comes conceptual and normative baggage. Opioid litigation similarly continues to be part of a definitional battle. Is this about an epidemic, crisis, loss of moral fiber, white middle-class decline, crime-wave, plague, or something else? Litigation and procedural vehicles lean on these different conceptions and, in turn, shape how we view that thing out there in the world.

I was reminded of the problem of categorization and Sontag’s account when reading Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis. The article is an excellent primer on the role of courts in “impos[ing] blame–and with it, enduring responsibility” for the harm caused by the opioid epidemic.

There is no quick way to describe the despair and destruction brought upon communities by the opioid epidemic, but let me offer three crude reference points: Overdose deaths are higher than deaths from H.I.V., car crashes, or gun violence at their peaks. Hundreds of thousands suffer from opioid dependence and impairment. Many states and counties warn that they are absurdly inundated with opioids. For example, multiple Indiana counties claim that they have more opioid prescriptions than residents. Ohio claims that in 2012 (long before the peak of the opioid epidemic), pharmaceutical companies shipped to Ohio enough opioid doses to supply every last man, woman, and child in the state with 68 pills each.

Gluck et al.’s article is a useful starting point for scholars interested in one of the most shocking public health crises of our time, one that is being litigated in courts across the country. The opioid epidemic is massive, diffuse, and multifaceted, at once nearby and often hidden and remote. Litigation related to the opioid epidemic is complex and constantly evolving. It involves hundreds of cases from around the country, spanning multiple decades, using different procedural vehicles, and raising thorny substantive and procedural questions.

For people not familiar with the twists and turns of this litigation, Gluck et al.’s article offers a valuable guide. Beyond shining a spotlight on this important and perhaps overlooked topic, it makes numerous additional contributions.

First, it provides an overview of the cast of players. The article highlights a changing and expanding cast of plaintiffs and defendants. The illegal purchase of a single OxyContin pill in the hallways of a high school is the endpoint of a long chain linking pharmaceutical companies, distributors, doctors, pharmacies, and patients to federal regulators, state agencies, local law enforcement, and local harm. Gluck et al. identify the actors in the opioid litigation as well as their substantive claims, defenses, and litigation strategies. The article also provides a useful primer on the numerous difficulties of proving causation and implementing relief.

Second, it provides an account of the history of civil opioid litigation. In a first wave of lawsuits, pharmaceutical companies largely avoided liability, public disclosures, and admissions of wrongdoing by shifting blame to users and prescribing doctors. As the authors point out, “stigma against addiction . . . played a key part in the success of drug manufacturers in defending themselves in these suits.” They detail how the first wave of opioid litigation ended when Purdue Pharma agreed to pay $600 million in criminal and civil fines to the federal government and nearly $20 million to 26 states and the District of Columbia; three executives pleaded guilty to criminal charges; and Purdue admitted to misbranding by falsely advertising. This settlement, though big, pales compared to the colossal cost of opioid abuse. A second wave of litigation is under way, predominantly driven by state and local governments with a broader cast of defendants and novel legal claims.

Third, the article provides a helpful and perhaps inevitable comparison between opioid litigation and tobacco litigation. The authors are skeptical whether the former can use the latter as a strategic blueprint, repeat its successes ($250 billion recovered), and avoid its failures (use of settlement funds to compensate for general state budget shortfalls). Tobacco litigation involved fewer defendants, a clearer causal account, and no FDA approval. And in contrast to some opioid use, tobacco, in contrast to some provides no medical benefits.

Fourth, the article is attuned to the pivotal role of procedure. It highlights how class actions in the first wave failed because courts focused on the unique medical history of each user and varying medical providers, thus defeating commonality claims. In contrast, the current wave is dominated by the decision to consolidate hundreds of opioid cases in federal multidistrict litigation under a single judge.

This article is not without flaws, but it accomplishes its goals efficiently and elegantly. It provides a timely and balanced account that is mindful of the practical costs and opportunities of the opioid litigation. Most importantly, the article reminds us about all the work that remains to be done. A rich menu of pressing procedural questions awaits exploration. I hope that Gluck et al.’s article will spark a new generation of procedural scholarship on opioid litigation that will help to de-mystify the underlying epidemic and inoculate us against punitive metaphors and stigma.

Cite as: Roger M. Michalski, A Primer on Opioid-Epidemic Litigation, JOTWELL (March 7, 2019) (reviewing Abbe R. Gluck, Ashley Hall, & Gregory Curfman, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, 46(2) Journal of Law, Medicine & Ethics 351–366 (2018), available on SSRN),