The Journal of Things We Like (Lots)
Select Page

The Roberts Court’s Legacy in Class Action Jurisprudence

Richard D. Freer, The Roberts Court and Class Litigation: Revolution, Evolution, and Work to be Done, 51 Stetson L. Rev. ___ (forthcoming 2022), available on SSRN.

The rise in class action litigation has garnered significant scholarly and judicial attention over the past several decades, particularly in the United States. The Supreme Court of the United States under Chief Justice Roberts is perceived to be wary of, if not hostile to, class actions. A new paper by Richard Freer sheds light on the precise ways the Roberts Court has affected class action jurisprudence. The Court has released an average of more than two class action decisions a year since 2010, and in so doing, has revolutionized class action practice.

Freer offers a retrospective on three areas of jurisprudence that makes plain the important role the Roberts Court has played in class actions, especially over the past decade. He categorizes decisions as ‘revolutionary’, ‘evolutionary’ or ‘work to be done’. By analyzing the corpus of cases in this way, Freer provides a compelling account of the Court’s engagement with key class action issues.

The first category describes the revolutionary effect of Wal-Mart Stores, Inc. v Dukes. The Court rejected 35 years of lower-court interpretations of Eisen v. Carlisle & Jacquelin by requiring district judges to assess evidence relating to class certification, even if the evidence also bears on the merits of the action. The class representative must provide “significant proof” to the judge who undertakes a “rigorous analysis.” The Court also hinted that expert witnesses at the certification hearing must meet the Daubert requirements. Freer observes that lower courts “have treated this hint as a command” and that the combination of the evidentiary rule and the higher evidentiary standard has resulted in expensive certification processes.

Wal-Mart also breathed new life into the commonality requirement under Rule 23(a)(2), which historically had not been a difficult threshold to overcome. The majority’s approach “shifted the focus from common questions to common answers: there must be a common issue in the case such ‘that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’” This heightened commonality requirement has led to greater attention to Rule 23(a)(2) and to increased denials of class certification.

In the second category, Freer documents the evolution of Roberts Court case law on fraud-on-the-market class actions that has created new hurdles for shareholder plaintiffs. The fraud-on-the-market theory posits that shareholders’ reliance on a corporation’s public misrepresentations will be presumed so long as the class representative can demonstrate that the securities are traded in an efficient public market. The Court affirmed the theory in a number of cases, starting with Erica P. John Fund, Inc. v. Halliburton Co., continuing with Amgen, Inc. v. Connecticut Retirement Plans & Trust Funds, and most recently with Goldman Sachs Grp., Inc. v Arkansas Teacher Retirement Sys in June 2021. But in two decisions–Halliburton II and Goldman Sachs–the Court added the requirement that the misrepresentation had a price impact, even though the Court in Amgen had concluded that the representative need not prove the misrepresentation was material. Freer rightfully points out that the Court has ignored the relationship between price impact and materiality and has opened the door to a full-blown evidentiary inquiry at certification even further.

Finally, the Roberts Court has raised, but not answered, important questions in three areas of class action jurisprudence. First, class representatives must have standing under Article III of the Constitution even if they have a private right of action pursuant to a statute, but the Court has provided little guidance on the relationship between statutory and constitutional standing in Rule 23 cases. Second, the Court has not addressed questions of mootness, even when given the opportunity to do so in Campbell-Ewald Co v. Gomez. The Court did not answer whether an unaccepted settlement offer in the full amount of the class representative’s loss renders their claim moot and non-justiciable as a matter of constitutional law. Relatedly, it failed to explain whether that representative retains an interest that would permit them to argue that the class should be certified. Freer lists a number of issues that flow from these questions and warrant the Court’s attention. Lastly, though Roberts has stated that he has “fundamental concerns” about the use of cy pres remedies in class settlements, the Court did not seize the opportunity to clarify the limits of the doctrine in Frank v. Gaos. In all three–standing, mootness and cy pres–the Court has “staked out some topics on which its real work has yet to begin.”

In his succinct paper, Freer confirms the prevailing view among class action scholars that the Roberts Court has been active on class action issues and has made certification more difficult. Should the Court take up the work it has left uncompleted, the evolution – perhaps even revolution – of class actions will be one of its lasting legacies.

Cite as: Jasminka Kalajdzic, The Roberts Court’s Legacy in Class Action Jurisprudence, JOTWELL (January 10, 2022) (reviewing Richard D. Freer, The Roberts Court and Class Litigation: Revolution, Evolution, and Work to be Done, 51 Stetson L. Rev. ___ (forthcoming 2022), available on SSRN),

Circumventing Procedure in Eviction Court

Nicole Summers, Civil Probation (Aug. 3, 2021), available at SSRN.

Although 98% of cases in the United States are filed in state courts, it has become common to lament the lack of state-court-focused scholarship. Statements such as “staggeringly little legal scholarship focuses on state courts and judges” and “[w]e know astonishingly little about [state courts]” abound. A recent jot highlighted an article calling for more attention on “the actual,” not just “the ideal,” in procedural due process.

Luckily these tides are changing. Nicole Summers is an important member of an emerging vanguard here to help.

Summers studies eviction courts from the ground up. In her latest article, Civil Probation, she not only provides invaluable empirical data about the real workings of eviction courts, but she contextualizes her findings in theories that enhance our understanding of state civil courts generally and eviction courts in particular. (See also her earlier study of NYC housing court.)

Her empirical contribution is extraordinary. It is well documented that the vast majority of the over 3.6 million eviction cases filed annually in the United States end in settlements brokered between landlords’ lawyers and unrepresented tenants, primarily in courthouse hallways. Focusing on eastern Massachusetts, Summers analyzed 1000 randomly selected cases to determine the most prevalent features of these settlements. Summers’ study investigates the terms of those settlements, asking an important question: “What are the parties settling for?” One might expect the settlements to result in some compromise between the landlord and tenant—for example, an arrangement that the tenant would pay some or all of the outstanding rent over time. But these settlements do far more than ensure that landlords collect rent.

Summers’ data reveals that these settlement agreements usually contain three features: 1) the landlord gets judgment of possession; but 2) execution of that judgment—meaning actual eviction—is stayed, provided that the tenant complies with certain conditions for a certain length of time; and 3) during that period, the landlord can move the court to execute the eviction if the tenant violates one of those conditions. Those conditions can include otherwise eviction-worthy missteps like missing rent. But they can include mundane, less eviction-worthy missteps, such as failing to file certain paperwork. The settlement agreement requires compliance with these additional requests—sometimes reflecting all of the lease terms—to avoid nearly immediate eviction. These settlements are common with sophisticated, represented institutional landlords (as opposed to mom-and-pop lessors).

Summers analogizes these settlements to probation—which, like all good insights, seems obvious in retrospect. Summers rejects the typical categorization of settlements as either repayment agreements (settlements that require repayment of outstanding rent) and probationary agreements (settlements imposing behavioral terms, such as not having pets). Summers instead offers the new label of civil probation to describe settlement agreements that impose conditions on tenants (whether the conditions address repayment or behavior) and subject them to eviction if those conditions are violated.

The irony of studying Massachusetts is that it has relatively tenant-friendly housing laws, which might protect tenants from eviction for failure to comply with one minor lease term. But these settlement agreements effectively re-write those laws via contract. Like consumer contracts whose arbitration clauses effectively deny consumers the opportunity to access courts and class-action lawsuits, these agreements enable landlords to circumvent ordinary eviction proceedings when they return to court to execute their judgments. The result, as in the consumer context, is that contractual arrangements replace the underlying regulatory law—substantive and procedural.

The core insight is that these settlement agreements “place tenants under a more restrictive regime by which they can be evicted through an alternative legal process.” Landlords, having threatened eviction once, can impose onerous conditions with a hair trigger to future eviction, which helps the landlord not only collect rent but also compel other kinds of compliance. Indeed, this arrangement affords the landlord access to eviction as a remedy for minor missteps even if tenants have paid all rent. Eighty one percent of eviction orders in Summers’ study are issued within this civil-probation system, in contrast to 19% issued pursuant to judgment for the landlord after trial. This creates a shadow legal system, dictated not by housing law but by settlement agreements designed by landlords and their lawyers and imposing more onerous terms and obligations on tenants.

This shadow system also changes the procedural rules for eviction in four ways. It circumvents the statutorily prescribed system for serving a summons and complaint required for seeking first-order evictions; no such notice measures are required before moving to enforce a probationary settlement agreement. It circumvents statutory rules granting tenants extensive written discovery rights in regular eviction proceedings; when facing eviction for breach of a settlement agreement, “the tenant is not entitled to any discovery whatsoever.” It replaces tenants’ right to a trial for ordinary eviction with a right to a motion hearing over violation of a settlement agreement. Finally, after issuance of an eviction order, tenants are ordinarily entitled to an automatic 10-day stay (akin to the statutory period for filing a notice of appeal); that does not apply to evictions based on a probationary settlement agreement.

Summers’ article makes important contributions to the much-needed scholarship on state civil courts. Some of these trends are reminiscent of themes often examined in the federal court literature, such as the role of parties in crafting procedures and potentially circumventing procedural rules. Here, however, these dynamics play out in the context of what Carpenter, Shanahan, Mark, and Steinberg call “lawyerless courts,” where in most cases at least one party is unrepresented. Wherever one falls on the propriety of party-driven procedure in federal court, where 90% of cases involve parties represented on both sides, one-party-driven procedure should concern us all.

Summers concludes the article by calling for even more research. Her study focuses on Massachusetts, a state with tenant-friendly eviction rules. One could imagine that civil probation agreements in other states might have different features operating against a different legal regime. Likewise, Summers states that civil probation settlements are the most common means of resolving cases in the Massachusetts courts she surveyed, but comprise only 37% of cases. There are non-trivial numbers of voluntary dismissals (24%), move-out agreements (19%), default judgments (15%), and even trials (4%). One might expect these percentages to vary across different jurisdictions. (See, for example, Lauren Sudeall and Daniel Pasciuti’s excellent recent study of Georgia’s housing courts.) But each category raises its own issues, and there is value to identifying them and their prevalence in different contexts.

The contribution here is undeniable. Summers adds to a growing wealth of scholarship on state civil courts that will help us all better understand civil procedure across all kinds of courts all across the country. It is a welcome answer to our pleas.

Cite as: Pamela Bookman, Circumventing Procedure in Eviction Court, JOTWELL (December 3, 2021) (reviewing Nicole Summers, Civil Probation (Aug. 3, 2021), available at SSRN),

In a Different Voice

Elizabeth Chamblee Burch & Margaret Williams, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd, __ Cornell L. Rev. __ (forthcoming 2022), available at SSRN.

How should we measure the value of an article? Easy metrics come to mind: citation counts, the h-index, SSRN downloads, likes and retweets, etc. All reflect the pathogenic logic of YouTube and Instagram celebrityhood transposed to legal scholarship. We all know that. Yet many of us pour over top-10 lists of most-cited scholars in different fields, compare downloads, and fret when a forthcoming article in our area does not cite us. When the masters behind the tyranny of the U.S. News metrics flirted with including citation counts, more than a few corners of legal academy prepared to fall in line. Some perhaps a bit too eagerly.

How about other (anti-)metrics: humanity and compassion? A bit quaint, perhaps, too cute in a hardnosed data-driven world. But why not focus on meaningful markers of human flourishing?

Elizabeth Chamblee Burch and Margaret Williams’s new article would score high on both counts.

The article opens with the obligatory observation in the field that MDL caseloads swallow up more and more of the federal docket and involve many high-profile issues (e.g., opioids). This trend has drawn significant scholarly attention. Yet we still know little about the individual plaintiffs in many of these MDLs. Their views, concerns, and frustrations have largely remained hidden. Burch and Williams conducted a survey of plaintiffs in numerous MDLs to understand their perspectives and inform numerous doctrinal debates.

Burch and Williams begin by rehearsing MDLs’ transfer provisions and specialized litigation procedures. They contrast these structural features with the main findings of the procedural justice literature. That literature suggests individuals value proceedings that allow for participation (or at least presence), that are intelligible, where an attorney they trust can influence proceedings, and where a judge considers the facts of their case. MDLs might be efficient (allowing for one judge and a few adjuncts to handle huge numbers of cases), but they purchase such efficiency at the cost of distant proceedings that drag on for years, that are led by a team of attorneys with no relation to most plaintiffs, and that rarely concern themselves with the messy business of understanding the stories of individual plaintiffs.

Then comes Burch and Williams’ main contribution: they ask a bunch of plaintiffs a bunch of questions. The article analyzes how these answers relate to important doctrinal questions, raise ethical concerns for the often absent or dismissive MDL attorneys, and generally show “a system under stress,” often unable to meet basic thresholds of what we expect from a proud judicial system. The article includes various proposals to ameliorate the current state of affairs, ranging from required attorney public-disclosure statements to technologically enabled transparency measures (Zoom MDLs!) to appointment of separate attorneys for separate interests.

I could summarize the article and its practical, doctrinal, and theoretical points at great length. But the point of the article is to let MDL plaintiffs speak in their voices. So here are a few quotes from the article. (There are many more and they deserve to be read with care.)

  • “I was on an assembly line and just waited for years.”
  • “I feel that the judicial system is treating this serious matter just like a mass production of a product and not as legal human suffering cases where people’s lives are at stake.”
  • “It was a total failure of the system. I lost faith in the legal system and feel these multi district lawsuits do not help the individual in any way.”
  • “I absolutely feel like I don’t matter. I would even say I kinda feel like my attorney just wishes I would die so they could forget about the whole thing.”
  • “I feel as though I was never represented. To this day I have never spoken with the attorney . . . . I had absolutely no input in my own case.”
  • “[My lawyers] waited till the night before to tell me that I had a deposition the next morning” and then “no showed and the person from Johnson and Johnson had to conference call them in so they could continue. I walked into that deposition so unprepared and alone.”
  • “I felt like I didn’t matter at all and I was just another number.”
  • “My life has been ruined and my attorney apparently doesn’t care. There’s been no personal interaction with him.”

One might have different reactions at this point. One is to examine the data and the process that generated it. There are weak points. For example, the survey focuses on plaintiffs in 26 thematically linked MDLs out of hundreds available. The survey was web-based, not administered in person or on paper. The authors relied on social media, webpages, plaintiff’s attorneys, and news coverage to spread the word about the survey. It yielded 217 unique and verified responses (the authors also “spoke with over 20 [plaintiffs] by phone and corresponded with over 90 by email and electronic messages”). In short, the survey is not random and it is difficult to identify a population from which it samples. Also, as the authors acknowledge, “it is possible that those who felt more strongly about their experiences might have been more likely to participate and, of course, recollections may be tainted by any number of biases.” As such, all claims that rely on the representativeness of the survey must be read with lavish caution.

But perhaps that misses the point. Perhaps a better reaction to the many quotations in this article is to reflect on the suffering and outrage that these people experienced within these MDLs. Perhaps one might even ponder one’s role in all of this. I wondered if I had trained any of the lawyers involved. That is uncomfortable terrain, and I found myself instinctively reaching for the familiar comfort of literally any other article to avoid the emotional drain of this one. I am humbled by the compassion and humanity it took to research and write this article.

Of course, it could be that the survey responders are outliers. But I am not sure anymore. Are there accounts of people ennobled by MDLs and pleased with the procedure? Plaintiffs who were properly treated, respected, their stories heard and their view of the legal profession, the legal system, and the rule of law enhanced? Such people might exist (after all, without MDLs they might have been unable to find a lawyer and sue at all). But perhaps it is time for MDL proponents to find these people and bring forward their side of the story. As it stands, we have many stories that make the usual invocations of efficiency and lack of alternatives ring hollow.

Cite as: Roger M. Michalski, In a Different Voice, JOTWELL (November 18, 2021) (reviewing Elizabeth Chamblee Burch & Margaret Williams, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd, __ Cornell L. Rev. __ (forthcoming 2022), available at SSRN),

Recovering Equity

Samuel L. Bray & Paul Miller, Getting Into Equity, 97 Notre Dame L. Rev. __ (forthcoming, 2022), available at SSRN.

I write to offer three cheers for Getting Into Equity, a rumination on the distinctive manner in which litigants invoke law and equity. To get into law, the authors explain, one asserts a cause of action, rooted in a Roman law conception of redress for a violation of one’s rights. To get into equity, the suitor provides a narrative account of a grievance that raises an equity in her favor. Equity may act in relatively predictable ways, but it remains fundamentally discretionary in the hands of judges or chancellors who have been asked to correct an injustice. The authors persuasively argue that the distinction has survived (if barely) the fusion of law and equity in the Federal Rules of Civil Procedure.

One immediate takeaway (as my students like to say) seems straightforward: judges asked to do equity must conduct a more flexible, less rule-bound assessment of the nature of the grievance and should not insist on codified causes of action. That may suggest that the failure of Congress to create a statutory right to sue in favor of the United States should not prove fatal to its suit for injunctive relief against enforcement of the Texas anti-abortion statute, SB8. Rather, the extraordinary nature of SB8’s enforcement regime and the apparent inadequacy of remedies at law for doctors who face a string of potential bounty-hunter proceedings might justify equitable intervention absent any statutory (or prior precedential) authority.

But for those of us struggling with puzzles like Ex parte Young (EPY) and Bivens, the paper offers a good deal more. Justice Harlan cited EPY in his Bivens concurrence, explaining that the right of action for constitutional wrongs had already been recognized (EPY) and the Bivens action simply offered an additional remedy (damages) in circumstances where no other remedy would suffice. Bray and Miller allow us to see that perhaps Harlan had things backwards: equity arises to complete or fulfill the common law, but the existence of an equity cannot give rise to the sort of rights that tort law customarily enforces. One might reason from a common law invasion (denial of substantive due process) to an equitable remedy (EPY) but not from equity (EPY) to a right of action, enforceable in a suit for money (Bivens).

So how can we tell when a federal court should recognize an equity? Just the other day in my federal courts class, I channeled the Justice Scalia of Armstrong v. Exceptional Child Center and the movie Ghostbusters in describing equity as a “free-floating phantasm.” Bray and Miller would agree. They explain, apropos of the origin story, that “[e]quity was in the background, and it was always there.” It does not require a statute to give it life; only a grant of jurisdiction and the federal courts have had that in abundance, under both Article III and the First Judiciary Act.

Yet the authors acknowledge that sometimes equity matures, from a body of grievance-based corrective justice to a set of supplemental rules that provide “first-order law,” comparable to a common law or statute-based right of action. That has happened, Bray and Miller explain, as to certain equitable specialties such as trust law. But in the main, equity remains corrective, filling gaps in the common law and supplying remedies tailored to specific accounts of injustice. Equitable jurisdiction and equitable discretion go hand in hand.

But how can we tell when equity has matured, evolving from corrective to supplemental? Does the change occur when a doctrine of equity, like the action recognized in EPY, has been enshrined in a Supreme Court opinion? Perhaps not, as the Court there emphasized the equities. When the holding has been restated on numerous occasions? Perhaps not, as equities might vary from case to case. When the holding has withstood a call for a return to a discretionary, corrective justice regime? In the case of EPY, Justice Kennedy called in Coeur D’Alene for a return to a discretionary doctrine. But the Court (perhaps under the influence of a rule-focused Justice Scalia) rejected that call. And all signs suggest that the Court prefers to do its constitutional business by declaring the law, a practice that it views as better suited to litigation brought for injunctive and declaratory relief than in suits for damages. Can we now think of EPY as supplemental, rather than corrective, and as a proper foundation for the sort of reasoning on which Justice Harlan based his Bivens concurrence?

One should mostly praise in a jot. If I were obliged to quibble, to season the praise so to speak, I would mention an item or two that the authors already know. True, the petition of right was addressed to the Crown’s discretion, but by the time Blackstone wrote it had evolved (matured?) into a proceeding that was resolved on legal principles; the Attorney General granted a fiat if the claim was well-founded in law. And true, courts of law and equity were separate in many Anglo-American legal systems. But joinder was no stranger to Americans with knowledge of Scots practice, and joinder emerged early in the federal courts with law and equity conducted on different “sides” of the same federal courtroom. And true, bills of complaint were lengthy, no doubt a reflection as the article suggests of the need to narrate a grievance. But bills also offered sworn statements of fact on which the courts might proceed to do equity, especially if the respondent failed to make an effective answer. Quite a different procedural world from our modern, federal rule-based hybrid of notice and plausibility pleading.

Returning to the Federal Rules, one finds the choice of language there all the more striking in light of the authors’ account of joinder and the cause of action. The formulation in Rule 8—the “claim for relief”—might encompass both the cause of action at law and the grievance in equity. Perhaps there is room in that phrase to accommodate the project of equity’s recovery, a project to which the authors have contributed much scholarly energy and erudition.

Cite as: James E. Pfander, Recovering Equity, JOTWELL (November 4, 2021) (reviewing Samuel L. Bray & Paul Miller, Getting Into Equity, 97 Notre Dame L. Rev. __ (forthcoming, 2022), available at SSRN),

Recasting the Corporate Bias of Civil Procedure: A Neoliberal Theory

Luke Norris, Neoliberal Civil Procedure, 12 U. C. Irvine L. Rev. ___ (forthcoming, 2022), available at SSRN.

In discussing federal rulemaking, civil procedure teachers have long pointed out prevailing norms of impartiality and neutrality. But most understand that the promise of neutral rules, as applied, often falls short of these aspirational goals. This realization prompts students to think beyond case outcomes and to reflect on the interests that courts serve by their judicial decisions. Commentators have analyzed the Court’s embedded political preferences, centering on the Court’s pro-corporate and anti-plaintiff bias that denies access to justice and “closes the courthouse doors.”

In Neoliberal Civil Procedure, Luke Norris pursues this enquiry, setting forth a sophisticated explanation grounded in neoliberal economic theory. His general themes and conclusions are the same as the “access to justice” crowd: that the way in which the Court has interpreted procedural rules has placed barriers to citizens seeking to vindicate rights in civil litigation. Norris endeavors to move the discussion beyond the simple incantation that the Court is pro-corporate and anti-plaintiff. Instead, Norris explains how neoliberalism has become a prevailing model in the Court’s application of procedural rules.

According to Norris, neoliberalism describes the revival of doctrines of classical economic liberalism. Neoliberalism is based on market-models of efficiency and autonomy, market arrangements, and the reduction of citizens to consumers and atomistic individuals rather than social agents. This market-model exceptionalism conflicts with democratic values such as distributive fairness, workplace security, economic opportunity, civic equality, and community solidarity. Neoliberalism is hostile to questions of power, structure, or vulnerability, and sidelines issues of coercion, subordination, and domination. It seeks to construct a law and politics that shields market relations from democratic control. Consequently, the infusion of neoliberalism into procedural decisions has made it increasingly difficult for plaintiffs to enforce regulatory laws such as antitrust, consumer protection, and anti-discrimination statutes.

Norris applies this theory of neoliberalism to four parts of the Court’s procedural jurisprudence: summary judgment, pleading, arbitration, and class actions. These decisions represent the low-hanging fruit for critics of a corporate-leaning Court; Michael Vitiello’s Animating Civil Procedure used the same examples to describe the Court’s pro-corporate bias. Norris examines these decisions through a neoliberalism lens.

Norris’s star example of neoliberalism at work is the Court’s 1986 summary judgment decision Matsushita Electric Industrial Co. v. Zenith Radio Corp., an antitrust case. Norris characterizes the decision as “perhaps the zenith of procedural interpretation that is market naturalizing, allowing judges to bring economic theory into their decision-making to construct market rationality.” In granting the defendant’s motion, the Court asked whether the plaintiff’s claim made economic sense. The Court constructed what it thought was plausible through the lens of efficiency, focusing on Chicago-school economic theory about how rational, profit-maximizing companies act. This increased plaintiffs’ procedural burdens in antitrust cases.

In the pleading arena, Norris finds neoliberalism infusing 2007’s Bell Atlantic v. Twombly, another antitrust decision. In dismissing the plaintiffs’ case for a lack of plausible pleading, “the Court again constructed its own view of efficient market rationality . . . and used that view to naturalize market behavior and insulate it from regulatory litigation.” In addition, the Court’s focus on discovery costs and burdens on institutional defendants was consistent with a market-efficiency rationale. Norris notes that while Matsushita represented a “foray into economic theory,” the Court there had relied on a well-developed record. The Twombly Court decided the motion on a record bereft of evidence. The Court “inserted itself . . . into reasoning about what was plausible within the market and whether market relationships evinced anticompetitive conduct at the pleading stage.” In dissent, Justice Stevens argued that the Court’s decision would invite lawyers to debate economic theory to conclusively resolve antitrust suits without any evidence. Needless to say, numerous critics piled on Twombly for its anti-plaintiff impact.

Regarding arbitration, Norris discusses the Court’s 1985 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. decision. That litigation asserted claims under the Sherman Act and involved a general arbitration clause. The Court interpreted the arbitration clause to include statutory rights and declined to allow the litigation to proceed in court. Norris suggests that Mitsubishi illustrates the Court’s lack of concern about power and parity: a lack that the Court would repeatedly manifest in many subsequent arbitration decisions.

Norris identifies two class action decisions reflecting the neoliberal approach to judicial decisionmaking. Norris’s prime example is Judge Posner’s 1995 Seventh Circuit decision in In re Rhone-Poulenc Rorer Inc. overturning a class certification, a decision infused with economic concepts such as settlement blackmail, which Norris contends persisted to impose hurdle after hurdle on class action plaintiffs. The Court’s 2011 Wal-Mart Stores v. Dukes demonstrates that the Court “trains its eye on the individual citizen consumer and thwarts and dampens collective or aggregate litigation.”

Norris speculates that this neoliberal age may be another passing civil procedure era. Understanding the logic and pull of neoliberalism puts reformers in a better position to effectuate change. But resisting the pull of neoliberalism “would require a profound shift, a democratic reordering that is unlikely to occur without a new governing coalition.” Norris rather grandiosely suggests that civil procedure for a revitalized democratic regulatory era would shift the normative focus beyond efficiency, involve rethinking the governmental role as a procedural facilitator, and develop a politics of procedure. This article is worth reading for the insight he brings to procedural developments and for the numerous debatable points and interpretations he suggests.

Cite as: Linda S. Mullenix, Recasting the Corporate Bias of Civil Procedure: A Neoliberal Theory, JOTWELL (October 20, 2021) (reviewing Luke Norris, Neoliberal Civil Procedure, 12 U. C. Irvine L. Rev. ___ (forthcoming, 2022), available at SSRN),

Hiding Behind Habeas’s Hardness

Jonathan R. Siegel, Habeas, History, and Hermeneutics, (August 6, 2021), available in draft at SSRN.

Habeas is hard. Even among law professors—indeed, even among law professors whose teaching and writing includes habeas—the statutes and doctrines governing collateral post-conviction review in the federal courts have become so complicated and convoluted that there is a temptation to skip it in the Federal Courts syllabus (and, I dare say, to gloss over any paper the title of which includes the h-word). Whether you are a habeas scholar or not, though, you should make an exception for Jonathan Siegel’s forthcoming essay.

Siegel’s paper centers on Edwards v. Vannoy—by far the Supreme Court’s most important habeas decision from its October 2020 Term—and explains why even those of us who have paid attention to it have missed what really matters. In the process, we have missed ominous portents of the future of the current Court’s approach to post-conviction habeas—and of how the current Supreme Court decontextualizes older rulings and statutes to rewrite history and to free itself from the strictures that proper understandings would impose. Siegel’s paper is equal parts trenchant and terrifying, and it is a must-read even for those who do not know, to this point in the review, what Edwards was actually about.

Let’s start there: The Court granted certiorari in Edwards to decide a relatively straightforward question. In 2020, a 6-3 majority in Ramos v. Louisiana held that the right to a unanimous conviction required by the Sixth Amendment’s Jury Trial Clause also applies to the states through the Due Process Clause of the Fourteenth Amendment. By incorporating against the states a new rule of constitutional law, Ramos raised the question of whether its new rule applied retroactively to those state prisoners whose non-unanimous convictions had become final. Under the framework the Court articulated in its 1989 decision in Teague v. Lane, a new constitutional rule is generally not enforceable on collateral review (as opposed to direct appeal) unless it invalidates the substantive basis for the petitioner’s conviction or sentence or it is a “watershed” rule of criminal procedure—one that implicates the fundamental fairness of the underlying criminal trial. The question in Edwards was whether Ramos belonged in this latter category.

For a 6-3 majority, Justice Kavanaugh said “no.” Far more than that, the Edwards majority (in a huge favor to future Federal Courts students) eliminated the “watershed” rule exception—since, in the 32 years it had been on the books, the Court had never identified a single new example (and the only old example was Gideon v. Wainwright). Not surprisingly, most commentary on Edwards focused on this rather aggressive and wholly unnecessary move by the majority and the troubling implications of the Court’s certitude that it would never again identify such a rule. For one especially good example, see Jeffrey Ho’s note in the June 2021 issue of the Stanford Law Review.

Here’s where Siegel comes in. His focus, unlike just about every other commentator, is on the two concurring opinions in Edwards—by Justices Thomas and Gorsuch (each of whom joined the other). As he (quite correctly) notes, the Justices used their separate opinions to attack the foundation of modern post-conviction review, arguing that historical practice and a proper interpretation of the relevant habeas statute (itself a descendant of the Habeas Corpus Act of 1867) should limit federal courts to reviewing only whether the state court was one of competent jurisdiction. As Siegel writes, “Under this rule, it wouldn’t matter if the state court that tried the prisoner’s original criminal case violated the prisoner’s right to a jury trial, to the assistance of counsel, to call witnesses, to avoid self-incrimination, or any of the numerous other federal constitutional rights that apply in state criminal proceedings.” After all, as we understand “jurisdiction” today, a criminal case in which a state court lacks it is exceedingly rare.

The problem, as Siegel’s paper thoroughly and convincingly explains, is that is not how “jurisdiction” was understood at the relevant times—by antebellum state and federal courts and by the Radical Republicans in Congress who drafted the Habeas Corpus Act of 1867 (and, to a lesser extent, the radical Republicans in Congress who drafted the Antiterrorism and Effective Death Penalty Act of 1996). To the former, Siegel marshals significant evidence in support of a different framing—that “[t]hese cases used the term ‘jurisdiction’ as a term of art with a specialized meaning quite different from the meaning it would have today. Federal courts issued habeas relief to prisoners in custody by virtue of courts’ judgments even though the courts had what would today be regarded as jurisdiction.” Indeed, as even non-habeas nerds know, the Supreme Court spent a good part of the early 2000s clarifying what the term “jurisdiction” means, after so many lower courts had read it far more capaciously. The Court’s modern terminological formalism vis-à-vis the concept of “jurisdiction” underscores what Siegel’s paper makes explicit—that this formalism is new.

To the latter, Siegel walks through the evolution of the federal habeas statutes from 1867 to today, and shows—again, convincingly—how, at each step along the way, Congress understood the scope of relief it was authorizing to extend beyond what we would understand today as collateral attacks on the subject-matter jurisdiction of the trial court. Even AEDPA would have had no need to impose many of the controversial limits that have formed the backbone of modern habeas jurisprudence if Gorsuch and Thomas were right.

There is a lot to commend this punchy, short, and direct paper. It is accessible to non-habeas scholars. It does not try to include a literature review that would bog down the footnotes. It engages directly with the reasoning of the Thomas and Gorsuch concurrences. And it attempts to offer broader lessons about judges doing history and hermeneutics—and the importance of reading not only statutes in context (including what their language necessarily implies), but judicial decisions as well.

Alas, in habeas scholarship, this is hardly a new theme. From James Liebman to Randy Hertz to Amanda Tyler to Paul Halliday to Todd Pettys to Baher Azmy to Lee Kovarsky to (you get the idea), one could fill a library with two decades of convincing, unrebutted academic work demonstrating beyond peradventure that habeas was far more robust before the Supreme Court’s canonical 1953 decision in Brown v. Allen than is widely understood. To similar effect, much of this work has attempted to demonstrate that many contemporary conservative jurists continue to misstate the origins and historical understanding of habeas. Yet, as the Thomas and Gorsuch concurrences in Edwards underscore, none of that scholarship seems to have broken through. Meanwhile, as Siegel notes, the changing composition of the Court makes the project much more urgent, with a growing possibility that a majority exists to adopt this deeply revisionist view of 18th, 19th, and even 20th century habeas practice at the expense of the constitutional rights of state (and, it would seem to follow, federal) prisoners. Here’s hoping that Siegel’s succinct and scary essay breaks that cycle—and that the Supreme Court does as well.

Cite as: Steve Vladeck, Hiding Behind Habeas’s Hardness, JOTWELL (October 6, 2021) (reviewing Jonathan R. Siegel, Habeas, History, and Hermeneutics, (August 6, 2021), available in draft at SSRN),

Standing for Something More: Respect and Article III

Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L. J. 1263 (2021).

The last Supreme Court Term featured a bumper crop of important decisions on standing, justiciability, and remedies. The outcomes were not monolithic. Some were sympathetic to those seeking access to judicial remedies in federal court, while others seemed to erect significant barriers—even in stark defiance of the express will of the federal government’s two other branches. The Court’s recent pronouncements also reveal sharp divides among the justices about issues at the heart of what they and the rest of the federal judiciary actually do: determine whether and when parties are entitled to judicial remedies.

Against this backdrop, Rachel Bayefsky’s article offers an especially timely and valuable contribution. Bayefsky identifies and critiques what she calls the “circumscribed” approach to the remedial authority of federal courts. At the core of this approach is a presumption that judicial remedies address solely the parties’ material circumstances. As Bayefsky shows, this vision undergirds the Court’s (or at least some justices’) attitudes on a range of issues—whether parties have Article III standing to sue in federal court, whether an offer of complete relief to a class representative can thwart a class action by mooting the representative’s individual claims, whether suits seeking only nominal damages may proceed in federal court, whether a party has “prevail[ed]” such that they are entitled to attorney fees, and whether injunctive relief for unconstitutional conduct may extend “nationwide.” For these issues, the circumscribed theory threatens to restrict or burden access to the federal courts and the power of those courts to remedy legal violations. And the circumscribed approach often acts as a matter of constitutional law—dictating the scope of Article III’s “case or controversy” requirement in a way that shuts the doors to federal courts.

Bayefsky offers a compelling alternative: an “expressive account” of judicial remedies. She argues that “a legitimate and important remedial task for federal courts is to express respect for parties’ dignity”—beyond the merely material concerns that are the focus of the circumscribed approach. These dignitary harms should be understood as constitutionally cognizable injuries that federal courts can and should remedy.

In support of this vision, Bayefsky marshals both historical and empirical support. She details, for example, the common law’s robust recognition of a party’s legal interest in respectful treatment. And she emphasizes the role that dignity and respect have played in a range of contemporary legal doctrines, such as antidiscrimination and equal protection law. Bayefsky also invokes empirical studies revealing how litigants’ dignitary concerns—the quest for respect and the need to redress disrespectful treatment—drive litigation. Vindicating these concerns increases procedural justice as litigants actually experience it and bolsters judicial legitimacy.

Bayefsky makes a convincing case that it is fundamentally mistaken to constitutionalize the circumscribed “material harm” vision into Article III’s “case or controversy” requirement. In doing so, she persuasively refutes the objection that dignitary remedies will invite federal courts to render “advisory opinions” in merely “hypothetical” disputes. That critique is premised on the circumscribed understanding of remedial authority. Once the expression of respect is recognized as an appropriate remedial task, disputes involving claims for such remedies are hardly hypothetical.

In refining her framework, Bayefsky provides sophisticated responses to some intriguing questions that her expressive approach presents. She distinguishes, for example, the “dignitary consequences of respectful and disrespectful treatment” from the psychological effects of such treatment. There is value in remedying disrespect, regardless of whether its targets suffer psychological trauma. Yet Bayefsky resists the conclusion that every legal violation necessarily causes dignitary harm, offering benchmarks to guide when expressive remedies are warranted. In addition, she highlights the importance of collective redress for dignitary harms that derive from an individual plaintiff’s membership in a broader group. This insight sheds particular light on the debate surrounding nationwide injunctions and other remedies that benefit individuals beyond the specific plaintiff bringing suit.

The Supreme Court’s jurisprudence on standing, justiciability, and remedies has long been the subject of criticism and perplexity. Bayefsky’s argument for dignitary harm as a cognizable injury and a proper subject of the federal judiciary’s remedial authority has the potential not only to correct substantive blind spots in the Court’s current doctrine, but to pave the way toward a more coherent and workable framework. It is a commendable, welcome, and well-supported proposal.

Cite as: Adam N. Steinman, Standing for Something More: Respect and Article III, JOTWELL (September 20, 2021) (reviewing Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L. J. 1263 (2021)),

A Gendered Right to Counsel?

Kathryn A. Sabbeth and Jessica K. Steinberg, The Gender of Gideon, 69 UCLA L. Rev. (forthcoming, 2022), available at SSRN.

The civil and criminal justice systems are built on an adversarial model, but only in the criminal sphere does the defendant possess a constitutional right to representation at public expense. As a result, while representation is the default in criminal cases, more than three quarters of civil cases involve an unrepresented party.

That disconnect flows from the Supreme Court’s decisions in Gideon v. Wainwright and Lassiter v. Department of Social Services. Gideon held that the Constitution guarantees a right to counsel for a defendant facing imprisonment for a criminal offense, regardless of the nature of the crime or the length of the sentence. Lassiter held that the Constitution does not provide the same guarantee for a parent facing the termination of her legal relationship with her child.

What does any of that have to do with gender? Quite a bit, Kathryn Sabbeth and Jessica Steinberg explain in The Gender of Gideon.

That Clarence Gideon was a white man while Abby Gail Lassiter was a Black woman is only the starting point for their analysis. They demonstrate that, when it comes to the right to counsel, race and gender play a striking role in both the flaws in the doctrine and the facts on the ground. “[I]n both criminal and civil proceedings, the defendants unable to afford counsel are disproportionately people of color. Yet, in civil proceedings, they are also disproportionately women.” (Emphasis in the original.)

No governmental agency collects data about the gender of civil litigants, so the authors find information that, while indirect, provides ample support for their claim that “women face civil justice issues regularly and with highly punitive consequences.” Nearly a fifth of civil matters are evictions, and numerous studies of housing courts show that women comprise a clear majority of those facing eviction. Approximately five million cases a year involve family law, and virtually all defendants in cases involving the termination of parental rights are women. Debt collection actions constitute about a quarter of civil cases, and governmental data suggests that women carry high levels of debt and fall behind on payments more often than men do.

Women often appear in court for civil matters without counsel. As noted above, three quarters of civil litigants are unrepresented, higher in eviction and debt collection cases. Landlords and debt owners, by contrast, have representation rates upwards of 90 percent, meaning that a pro se defendant in an eviction or debt collection action likely faces a represented party. The authors caution against drawing overly precise conclusions from the available data. But it is clear that women are heavily burdened by the absence of a “civil Gideon” for matters affecting their lives.

Moving from data to doctrine, the authors show that the Supreme Court’s right-to-counsel decisions have failed to reflect the profound importance of these matters. In Gideon, the Court held that principles of liberty and justice required a right to counsel in all criminal cases involving imprisonment. By contrast, the Court held in Lassiter that a mother’s liberty interest in her relationship with her child did not automatically trigger the same right. As the authors put it, “the Court flatly concluded that the right to parent was categorically less important than physical liberty.”

Instead of announcing an across-the-board guarantee, the Court held that the right to counsel in parental-termination proceedings would be determined on a case-by-case basis pursuant to the Mathews v. Eldridge balancing test, asking whether the private interest is significant enough, in light of the risk of an erroneous decision, to outweigh the state’s interests. The authors argue that the Court analyzed those factors in a way that devalued Abby Gail Lassiter’s relationship with her child. The Court showed no awareness of the long and ugly history of the destruction of Black women’s bonds with their children in discussing her liberty interests and did not identify the preservation of Lassiter’s family as an interest of the state.

In criticizing Lassiter, the authors do not idealize Gideon. They acknowledge the latter’s many failures, but also note its successes. The development of doctrine in eviction, family law, and debt-collection cases, compared with criminal cases, supports the proposition that Gideon has had some positive effects. In criminal cases, the availability of representation at public expense has facilitated frequent appellate decisions about important legal issues. In the most common categories of civil cases, by contrast, the absence of representation has meant that the less powerful party seldom appeals, let alone effectively presents issues for appellate review. Doctrine stagnates, if it does not disappear altogether.

The Gender of Gideon is a terrific article. It offers a rich and empirically grounded view of parts of the justice system that receive too little attention, and it persuasively explains the role that gender has played in those areas. It asks its readers to attend to those realities, and it also asks those of us in the legal academy to consider how we might be complicit in creating and sustaining them. For example, do we treat family law cases, courses, and scholarship as unimportant or lacking in prestige? What, if anything, do we teach students about the “domestic relations” exception to federal subject matter jurisdiction? It is worth thinking about those choices and the values they reflect.

Cite as: Maureen Carroll, A Gendered Right to Counsel?, JOTWELL (September 3, 2021) (reviewing Kathryn A. Sabbeth and Jessica K. Steinberg, The Gender of Gideon, 69 UCLA L. Rev. (forthcoming, 2022), available at SSRN),

A Rule Against Fun

Nina Varsava, Professional Irresponsibility and Judicial Opinions,  __ Hous. L. Rev. __ (forthcoming, 2021), available at SSRN.

In recent months, federal judicial opinions have criticized “schlocky Star Wars sequels” or called circuit case law “a hot mess.”  They have fondly recalled “[w]hen painter-turned-inventor Samuel Morse sent the first telegraph message” or sarcastically used expressions like “presto!” or “voila.” And they have sustained decades-long criminal sentences by writing: “tl;dr . . . . we affirm the whole kit and caboodle.” In different ways, these opinions are having a bit of fun. And what could be wrong with that?

Quite a lot, argues Nina Varsava in a bracing and timely paper on judicial rhetoric. The piece takes aim at opinions that are literary, witty, or entertaining—precisely the traits that, she argues, are often held in high regard. Part of Varsava’s argument overlaps with familiar debates about legal narrative and storytelling, but she goes in unexpected directions.

Varsava argues that the judicial role demands at least three things of court opinions: candor, impartiality, and respectfulness. Varsava excludes not just entertainment but persuasiveness from this list. A judge’s goal should be to provide a sound legal basis for the decision at hand, regardless of whether that justification proves attractive to its readers. Too often, the desire to persuade proves a temptation, yielding appeals to fashion or prejudice. Lawyers in robes should not write briefs.

The essay also considers various benefits and “ethical costs.” The benefits of fun, Varsava suggests, largely lie with the jurists who engage in it. Judges aspire to write engaging opinions to draw attention to themselves, enhancing their reputations and careers. Fawning commentators encourage this strategy. The costs, by contrast, are more systemic. Colorful rhetoric consumes the reader’s time, obscures legally important points, and lends itself to oversimple or offensive stereotypes.

An important theme is that what is good for one audience might be bad for another. What persuades experts might turn off lay readers. And what delights the media could offend the parties. The risk of demeaning criminal defendants looms especially large. “There’s no rule against fun” in judicial opinions, Justice Kagan once remarked. “But perhaps there should be,” Varsava responds, if fun too often comes at someone’s expense.

What would a rule against fun look like? At one point, Varsava backs up her call for “an even-keeled and restrained institutional style” by discussing stern rules, such as “no jokes.” At other moments, however, she is more cautious, asking only “to draw attention to the ethical stakes of the stylistic choices that judges make.” Possible reforms thus range from encouraging judicial care to requiring that all opinions be per curiam.

I find the essay most persuasive in showing that judges’ pursuit of fun carries serious risks that are too often overlooked. That message can acknowledge the systemic benefits of fun. Lawyers and students appreciate breaks from insipid prose, and some judges share unique, valuable voices. Further, part of the problem goes to quality. Nothing succeeds quite like success and nothing falls flat quite like a judge who is trying too hard.

The most auspicious reforms have more to do with legal culture than formal rules. Judges supply opinions to meet demand. We readers thus generate bad rhetoric by dolling out praise for cheap tricks and barbs. If we were more careful with our compliments, perhaps judges would be more responsible, too.

Cite as: Richard Re, A Rule Against Fun, JOTWELL (July 22, 2021) (reviewing Nina Varsava, Professional Irresponsibility and Judicial Opinions,  __ Hous. L. Rev. __ (forthcoming, 2021), available at SSRN),

Update of Jotwell Mailing Lists

Many Jotwell readers choose to subscribe to Jotwell either by RSS or by email.

For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the Courtslaw section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.

The links at the subscription portal already point to the new email delivery system. It is open to all readers whether or not they previously subscribed for email delivery. From there you can choose to subscribe to all Jotwell content, or only the sections that most interest you.