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Unshrouding Our Day-to-Day Courts

Justin Weinstein-Tull, The Structures of Local Courts, _ U. Va. L. Rev. _ (forthcoming 2020), available at SSRN.

Most of the conversation about Kansas v. Glover considered the Fourth Amendment’s bearing on traffic stops. But one detail has gone unmentioned: Glover began in Kansas District Court, that state’s trial court. It then travelled to the Kansas Supreme Court, before finally arriving at the Supreme Court of the United States. This hardly seems noteworthy. After all, state supreme courts, along with federal courts of appeals, are among the most well-trodden paths to the Supreme Court, and those state cases must begin somewhere.

Yet Glover is, quite literally, a statistical outlier. As Justin Weinstein-Tull describes in The Structures of Local Courts, only 0.3% of local court cases—cases like Glover—litigated through trial receive a state supreme court opinion, and fewer still receive one from the United States Supreme Court. Their scarcity at the pinnacle of our judicial system belies their ubiquity throughout it. In 2015, for instance, 361,689 criminal and civil actions were filed in federal court, while 86.2 million (yes, million) were filed in local courts. Most legal disputes begin and end in local courts, yet they’re markedly absent from legal scholarship. This article fixes that. Weinstein-Tull provides a trenchant account of local courts, illustrating their structural diversity, revealing how a state–federal law latticework leaves them mostly free from oversight, interrogating our conception of their purpose, and imagining reforms and new lines of scholarly inquiry.

But first, what are “local courts” anyway? Weinstein-Tull defines them as “any non-appellate judicial court authorized or created by state law.” Like many past jots, Weinstein-Tull’s focus reflects a concern with the courts most responsible for dispensing day-to-day justice to their constituents.

These courts are worlds unto themselves. Because they’re creatures of state law, local courts are more diverse than their federal analogues in both form and function. Many perform functions beyond typical adversarial adjudication, like drug courts in Missouri, which divert certain defendants from the ordinary criminal-law system and place them into rehabilitation programs. Others experiment with changes to their litigation processes, such as Utah’s online small-claims courts, which relieve litigants of the burdens of in-person litigation.

But many issues beset local courts, which can turn them into “constitution-free zones,” as one advocate remarked to Weinstein-Tull. Most importantly, many lack adequate funding, often resulting in understaffed courts, physically inaccessible courthouses, glacially slow trials, opaque proceedings, and incomplete records. One woman in a California court had to translate for her husband because the court lacked interpreters—despite the fact that she was in court only to apply for a restraining order against him. Elsewhere, Weinstein-Tull recounts a time when a local court clerk acted “as though they had never had such a request” for a court transcript for an appeal.

Against this backdrop comes Weinstein-Tull’s key contribution: He weaves together disparate threads of state and federal law to reveal how the former shapes local courts and how the latter shelters them. State law, Weinstein-Tull explains, shapes local courts in myriad ways, including in how it administratively oversees local courts, how it funds them, how it appoints and retains judges, and how it substantively reviews their legal decisions through its appellate process. This means “that some local courts are well-monitored by the state system and many are not.”

Take their funding sources. Some local courts are funded entirely by the state. Yet others are funded locally, without state financial aid or the financial prescriptions dependably attached to state aid. Between these funding bookends lie many more state–local funding configurations. These configurations matter. Local courts that are locally funded, Weinstein-Tull shows, favor their localities over their states. They view state procedures as less applicable to them, preferring instead to develop local procedures that, in turn, splinter existing statewide uniform rules. Nor are these local rules invariably better: Some local procedures, ostensibly created to raise revenue, penalize marginalized communities and contribute to their overincarceration. Altogether, the choices made in shaping local courts aren’t merely theoretical; they carry real consequences.

And while state law shapes local courts, federal courts shelter them from most scrutiny. In theory, federal courts partner with state courts in a complementary scheme to administer justice nationwide. But because ordinary rules of appellate procedure—like deferring to a trial court’s factfinding absent clear error—circumscribe an appellate court’s review, and because so few local cases are reviewed by appellate courts in any event, Our Federalism’s respect for state courts is more properly understood as a respect for local courts, Weinstein-Tull concludes. So understood, doctrines such as preclusion, abstention, and habeas corpus—which “purport to vindicate federalism values by promoting state courts generally”—require federal courts to defer to local courts’ decision-making specifically. When federal courts deny habeas petitions, for example, they rely on a record primarily developed in a local court to do so—one that may lack interpreters or even a standard process for requesting transcripts of its proceedings.

Apart from deferring to their decision-making, federal courts also protect local courts through stringent doctrines that shelter them and their officials from reform efforts. Standing requires litigants to prove that they would likely reappear before the local court—eliding the fact that many litigants in local courts are not repeat players. And litigants whose claims can pass through the courthouse doors are often thwarted by generous immunity doctrines. Because of this, all but the worst offenses go unreviewed.

All of this, Weinstein-Tull argues, should lay to rest the “myth of the state court”: “the idea that state courts are an analytically coherent concept that we can discuss as a single, monolithic alternative to federal courts.” Common arguments for the value of state courts—really, local courts—in judicial federalism focus on their capacity for experimentation, their distinctive interpretation of constitutional concepts, and their ability to communicate state preferences through federal-law adjudication. Yet these values are served best when local courts are diverse and visible. But local courts are not diverse and visible; they’re diverse and obscure. We cannot evaluate whether local courts live up to these values because we cannot see what local courts do. Rather than shy away from this and pretend that local courts are rough facsimiles of federal courts, Weinstein-Tull urges us to view them earnestly and on their own terms.

And what might an earnest look entail? For their part, states should require local courts to show their work; publishing their opinions and proceedings, Weinstein-Tull suggests, would enable stronger oversight. Federal courts, on the other hand, must be more aware of the reality, rather than the myth, of state courts, tailoring their doctrines to better vindicate federalism’s values. Beyond these suggestions, Weinstein-Tull also imagines future lines of scholarly inquiry. Scholars might ask how local-court jurisprudence actually functions, rather than assuming that local courts inflexibly apply the methodologies and doctrines of higher courts. They might also investigate how local courts exercise their considerable discretion too. These inquiries, Weinstein-Tull predicts, are among the first steps toward reconnecting us with “the law in our lives.”

Local courts matter now more than ever. As the pandemic courses through the United States, local courts have reacted with timely ingenuity. Some have begun what might be called modern-day circuit riding, travelling in RVs through towns to meet with litigants directly. Others have forged ahead with pilot programs that tackle the cresting eviction crises washing over their communities. But many local courts, reliant on local funding, have begun to curtail their staff and operations. “Local courts,” Weinstein-Tull says, “reflect the justice we have, not the justice we aspire to or the justice required by written law.”

His excellent article not only reminds us of this oft-overlooked fact but also lays the foundation for fruitful future scholarship and reform.

The author’s views here are his own and do not necessarily reflect his employer’s.

Cite as: Leonardo Mangat, Unshrouding Our Day-to-Day Courts, JOTWELL (September 10, 2020) (reviewing Justin Weinstein-Tull, The Structures of Local Courts, _ U. Va. L. Rev. _ (forthcoming 2020), available at SSRN),

No Laughing Matter

Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Rev. 1423 (2019).

Few would mistake One First Street for a comedy club. Sure, it may be hard to get a ticket sometimes, but at least there’s no two-drink minimum once you get in. Am I right? Is this thing on?

But seriously, folks. For years now, some Supreme Court aficionados have taken a particular interest in oral argument humor. Jay Wexler’s @SCOTUSHUMOR Twitter account keeps regular stats on how often each Justice triggers [LAUGHTER] in an argument transcript. (He was on this beat before Twitter existed, in fact.) Wexler’s laughter rankings garnered a full Adam Liptak article in the New York Times, and Justice Breyer referred to them in a speech last Fall.

This all may seem like something on the lighter side of the Court-watching world, but it’s not immune from rigorous quantitative analysis. And that is exactly what Tonja Jacobi and Matthew Sag bring to bear in their fascinating article. They created a database of every argument transcript over a 63-year period, identifying more than 9000 incidents of laughter. They devised a method to account for the delay between a laughter-inducing event and the point at which “the laughter reaches the threshold of disruption that causes the court reporter to make a note of it.” (Comedy is all about timing, after all.) They deployed several approaches to the denominator problem, measuring laughter rates on a per-argument basis and as a function of each “speech event” and even the number of words spoken. And they cleansed the data of those instances where “laughter” lurks in less jovial words like “manslaughter.”

As an initial matter, Jacobi and Sag’s article provides a terrific highlight reel of moments that have elicited giggles and guffaws from the gallery: the Court’s epic twelve-laugh set in FCC v. Fox Television; the time an advocate confused Justice Kagan for Justice Scalia; Chief Justice Roberts ad libbing “I knew we should have paid that bill” when the lights went out; Justice Ginsburg dropping the mic after a deep-cut reference to “Bong hits for Jesus”; Justices Scalia and Breyer clashing in the carbohydrate culture wars over the merits of “sliced bread”; Justice Kennedy riffing on Einstein and the space-time continuum; and for you procedure enthusiasts out there, Justice Sotomayor openly lobbying that she not be assigned the opinion in Perry v. MSPB (a case about the jurisdictional boundary between federal district courts and the Federal Circuit in challenges to Merit Systems Protection Board decisions).

Ultimately, however, Jacobi and Sag argue that there is a decided dark side to the SCOTUS laugh track. Based on an admittedly “impressionistic” review of more than one thousand laughter events from 2010 to 2017, they conclude that “humor at the Supreme Court is not an equalizing force.” Instead, Justices use humor to highlight their superiority over the advocates before them. Not all laughs fit this profile. Jacobi and Sag recognize examples of “laughter reflecting incongruity,” prompted by “both absurdities and the surprising lack of fit between experience and expectation.” They also see instances where laughter acts as a “release valve.” There is even occasional “inferiority humor” involving “silliness or self-deprecation”—especially from Justices Breyer and Kagan. But Jacobi and Sag posit that, by and large, laughter “does not tend to indicate lighthearted, good-natured jesting.” Rather, “the Justices use it as a rhetorical weapon against their inferiors, as a form of advocacy against counsel arguing a side they will likely oppose, or to indicate that an advocate is inexperienced or doing badly.” As the saying goes, comedy is tragedy that happens to someone else.

Jacobi and Sag’s deeper statistical analysis reveals a number of interesting dynamics. First is a dramatic increase in laughter-inducing incidents over time: by any measure, laughter occurred much more frequently in the Rehnquist and Roberts Courts than in the Warren and Burger Courts. The authors consider a number of possible explanations for the increase. One was Justice Scalia joining the Court in 1986. As noted below, he places at the top of the laughter rankings by most measures. Another potential trigger that occurred at roughly the same time was the professionalization and concentration of the Supreme Court bar, which might have generated the sort of “exclusive club” among Justices and advocates that would be conducive to convivial banter. Jacobi and Sag also consider a more recent tipping point—1995, which they mark as the beginning of our current period of intense political polarization.

Looking at variations among cases, the authors show that the bigger the case the bigger the laughs, with more than double the frequency of Justice-inspired laughter in “legally salient” cases. And Jacobi and Sag provide a wealth of data on the individual Justices. Measured by laughter incidents per oral argument, Justice Scalia gets the gold medal, Justice Breyer the silver, and Chief Justice Roberts the bronze. Justice Frankfurter is the only Warren Court era Justice in the Top-10. (You can check Figure 2 of the article to see how your favorite Justices stack up.)

Jacobi and Sag then present data supporting their view that humor is a “weapon of advocacy.” The Justices are more likely to elicit laughter when the advocates they do not ultimately support are at the podium (the “agree/disagree” differential). And they are more likely to elicit laughter during the arguments of lawyers who ultimately lose the case (the “win/lose” differential), which could indicate that the Justices are getting laughs at the expense of weaker advocates. Finally, the authors explore the connection between the Justices’ use of humor and the advocate’s experience arguing before the Court. The Justices get more laughs when a SCOTUS novice is at the podium, which may reflect barbs directed at inexperienced advocates. Indeed, novice advocates endure much larger agree/disagree and win/lose differentials than their more experienced counterparts.

The insights lead Jacobi and Sag to question the notion that the Justice who gets the most laughs is truly the “Funniest Justice.” Humor is “a blood sport at the Court,” rather than “an empathetic attempt to equalize a hierarchical system.” Justice Scalia in particular exemplified this aspect of the Court’s practice; the authors note—as other scholars have—his “sarcasm and snark” and argue that he “put the punch in punchline.” According to the data, however, Justice Scalia is not alone. With some exceptions, “the overall humor of the Court is pretty mean.”

The Justices start their next gig on October 5. Although they’ll be here all week (and the following week, for that matter), it remains to be seen whether the October arguments—or those beyond—will generate any laughter data for scholars like Jacobi and Sag to collect and analyze. Last spring’s March and April sittings were postponed due to the COVID-19 pandemic, prompting the Court to hold remote oral arguments by teleconference in May. (The remote arguments did feature some amusing moments, but there was no gallery whose real-time reaction could be captured on a transcript.) Whatever broader lessons we should draw from the Justices’ use of humor during oral argument, we all hope for safe enough conditions that they can try their new material in front of a live studio audience. And we could certainly use a little laughter.

Cite as: Adam N. Steinman, No Laughing Matter, JOTWELL (August 11, 2020) (reviewing Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Rev. 1423 (2019)),

The Machinery of Justice

Amnon Reichman, Yair Sagy, Shlomi Balaban, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71 Hastings L. J. 589 (2020).

Court systems are large, complex, diverse, and resource-dependent organizations, a condition that shapes their character and behavior. It is surprising, then, how often court leaders fail to account for the organizational perspective in their decisionmaking. Amnon Reichman, Yair Sagy, and Shlomi Balaban illustrate this phenomenon, showing how the visionaries behind Legal-Net, Israel’s cloud-based judicial management system, were plagued by their failure to place its development in a broader organizational context.

Reichman and his colleagues trace the Israeli courts’ development of Legal-Net over two decades. Their research reveals a court system brimming with confidence that technology could be used to regulate judicial behavior, but insufficiently appreciative of the challenges of technological integration. The first version of Legal-Net was a flop: complicated and ambitious, it was a poor fit with existing court culture. A subsequent version better accounted for the court system’s unique character, but court leaders failed to anticipate how significantly its implementation would affect that character. In fact, the authors explain, the introduction of Legal-Net “heralded a tectonic shift in the judiciary’s work culture and work patterns,” as judges tailored their behavior toward the system’s incentives and away from their traditional roles. Today, it seems, the Israeli courts work for Legal-Net as much as Legal-Net works for them.

Legal-Net’s history begins in the early 1990s, when a handful of determined court administrators and judges began dreaming of a centralized and fully digitized judicial management system on a national scale. They imagined a “command and control” system that would rigidly structure and manage judicial performance by dictating how and when legal issues would be resolved. The system would structure the judicial process, telling judges which matters to address next in light of their existing caseload. This approach was compatible with Israel’s general “faith in technology as the bridge to a brighter and better future,” but wholly incompatible with reality on the ground. The proposal faced significant pushback from trial judges as well as insurmountable technical challenges, and it was abandoned after failing to attract a single viable development bid.

The failure of this first effort made clear the need to come at the problem from a broader organizational perspective. That meant responding to both the demands of the external environment and the needs of the court system’s internal stakeholders. To their credit, judicial leaders were up to the task. Looking outward, they contemplated how Legal-Net could ease—or hinder—the court system’s relationship with its external resource providers. One subtle but important example was Chief Justice Aharon Barak’s insistence in 2003 that Legal-Net be designed in accordance with the values of transparency and accountability. These values were central to Barak’s own beliefs about the judicial role in a liberal democracy, and embracing them in such a public way bolstered the court system’s resource acquisition strategy. If the courts presented themselves as open, transparent, and constructively self-critical, they would more likely be seen as legitimate and worthy of public support and financing.

Legal-Net’s proponents also turned their gaze inward. Their earlier failure taught them that they could not implement a significant technological change without buy-in from rank-and-file judges. They rescinded their demands for a top-down control system and reimagined the technology “as an integrative platform, where management pursues organizational goals, related to establishing a sense of shared mission and common practices of communication about such a mission.” This “managerial-integrative” approach eventually gained wider internal acceptance, and by the mid-2000s a new version of Legal-Net was ready for launch.

The new system allowed court administrators to create and disseminate statistical reports covering a wide range of judicial activity, including fine-grained comparative analyses of how individual judges managed their dockets. Court leaders viewed these reports as advancing system-wide transparency and accountability without compromising judicial independence. Judges would not be forced to decide cases in a certain way or within a certain timeframe, but they could be nudged toward efficiency “by way of harnessing judicial reputation.” The hope, in other words, was that judges would continue to address each individual matter with due care, but would also expedite the entire docket more efficiently than before.

But Legal-Net’s implementation provided a sharp reminder that organizations (like living organisms) are adaptive and will adjust their behavior to handle new environmental conditions. Once the reporting software was in place, Israeli judges felt pressure to resolve all their open matters quickly, even when individual issues might warrant extra time or attention. The result was greater case management efficiency, but also—in the authors’ view—a full-fledged reconfiguration of the judicial role. Reichman and colleagues explain that the arrival of Legal-Net epitomized “a transformation from a consciousness of retail, where the judicial attention was supposed to be fully devoted to the quality of resolution of individual cases, to an attitude of wholesale, where the judicial business is contextualized as a manufacturing process that is evaluated for its overall success in applying the law to a large number of cases as smoothly as possible.”

The lessons of the Legal-Net saga redound to court systems worldwide. The push for efficiency is familiar to American courts, which have increasingly turned to statistical reporting and managerial-judging techniques over the past half-century. As Israel’s experience shows, judicial efficiency can be an agreed-upon virtue yet pose delicate and difficult challenges in implementation. Separately, Legal-Net’s origin story is a valuable reminder that the process of organizational change and the effect of organizational change, while related, have different dimensions. To succeed, court systems (no less than other organizations) must structure their planning processes to account both for the current needs of their constituencies and for the unintended effects that transitions often bring.

Cite as: Jordan Singer, The Machinery of Justice, JOTWELL (July 28, 2020) (reviewing Amnon Reichman, Yair Sagy, Shlomi Balaban, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71 Hastings L. J. 589 (2020)),

Charting the Interactions of Legal Tech and Civil Procedure

David Freeman Engstrom & Jonah B. Gelbach, Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. __ (forthcoming, 2020), available at SSRN.

Myriad examples—from the rise of chief technology officers in law firms to the over $1.6 trillion invested in legal tech start-ups in 2018 to the use of AI-assisted drafting tools by Walmart’s legal department—demonstrate how technology is inexorably changing the American legal profession and courts, despite their small “c” conservative nature. When Chief Justice John Roberts was asked whether “smart machines, driven with artificial intelligences, will assist with courtroom fact finding or, more controversially even, judicial decision making,” he replied, “It’s a day that’s here….” And the legal community’s integration of more mundane—if no less important—technological tools such as videoconferencing into its existing practices has been dramatically hastened by the COVID-19 pandemic. A prominent example of this trend was when the Supreme Court of the United States held its first telephonic hearing in May.

While legal scholars and the popular press frequently comment on these developments, even the most expansive futurist takes about robot judging focus on how lawyers and the judiciary are (or will be) using new technology to do their traditional work. And courts mostly wrestle with how to adapt existing doctrine to specific applications of new tools. Against this context, David Freeman Engstrom and Jonah Gelbach’s Legal Tech, Civil Procedure, and the Future of Adversarialism marks a significant theoretical push forward, identifying and exploring the overarching question of how legal tech and the civil justice system’s procedural rules mutually shape each other.

In sketching their answers to this question, Engstrom and Gelbach provide two key insights about simultaneous interactions that will guide future research and reform efforts in the near-to-medium term. First, they explain how civil procedure acts on legal technology by shaping the incentives for innovation through the rules governing its use in litigation. Second, they show how legal technology acts on civil procedure doctrine by altering two foundational concerns—the reduction of high and asymmetric litigation costs and the widening of information asymmetries.

Engstrom and Gelbach begin by surveying existing legal technology, presenting a robust account of different tasks, along with the end user, litigation stage, necessary legal or technical expertise, data inputs, and product examples for each task. They also assess the likely technical trajectory of legal technology and the movement from tools that handle routinized tasks like e-discovery or digital reference retrieval to more sophisticated tools that use natural language processing and other machine learning techniques to make case predictions or draft legal documents. Engstrom and Gelbach then discuss regulatory, cultural, and technical problems that might limit the growth of legal tech. Of these, the technical barriers loom largest—whether difficulties generic to natural-language processing or law-specific difficulties like the dynamism of law and data deficiencies due to confidential settlements.

Notwithstanding a cautious note about how fast and far legal technology will advance in the near-to-medium term, Engstrom and Gelbach identify several important implications of the emerging academic literature on the topic. As to the legal profession, legal tech might result in lawyer de-skilling and de-centering, as non-lawyer professionals are brought in to manage advanced technological tools. They question whether the rule of law will suffer as lawyers are displaced by technologists whose expertise is shaped without the traditional norms of the legal profession. Additionally, they considerhow legal technology tools might impact the law, cautioning against a world in which the “process of enforcing collective value judgments plays out in server farms rather than a messy deliberative and adjudicatory process.”

Engstrom and Gelbach examine the possible distributive effects of legal technology’s spread. They start with the promising notion that such tools might level the playing field between the “haves” and have nots,” letting smaller practices compete against BigLaw and making litigation for lower-value claims more cost-effective. But they warn that these tools might reproduce existing structural inequalities. Among other issues, few advanced tools are ready off-the-shelf, potentially putting them out of reach of smaller players.

Three individual case studies then explore how e-discovery, outcome-prediction, and advanced legal analytics tools change how litigation costs and information asymmetries play out. For each, Engstrom and Gelbach connect the tools to the applicable civil procedure doctrines and suggest how they might change in response. To provide a straightforward example, if legal technology tools reduce the costs associated with discovery of voluminous electronically stored information, a primary rationale for the restrictive Iqbal pleading standard would fall away.

Having laid the necessary groundwork, Engstrom and Gelbach draw out their lessons about the bi-directional interactions of legal technology and civil procedure. In the first instance, judges’ procedural decisions will set the incentives for legal technology tools, creating “a shadow innovation policy.” At the same time, these tools will change factors that inform existing civil procedure doctrine. These interactions and the policy decisions of judges and other rulemakers will “shape the future of American adversarialism” by determining how the power of advances in legal technology is allocated between parties vis-à-vis each other and judges.

This article weaves a rich story of how legal technology and civil procedure inform each other. It moves from concrete descriptions of specific tools and doctrine to analysis that illuminates the frequently unspoken underlying normative conceptions of adversarialism and justice that animate the civil justice system. And, while it is particularly timely because of how COVID-19 has forced the global legal community to rapidly integrate more legal technology tools into its practice, the article’s impact will extend well beyond this moment.

A final subtle beauty of the article is its invitation to legal scholars of all stripes to join the conversation. While Engstrom and Gelbach disclaim that the article exhaustively addresses all of the nuances of the issue, they highlight connections to virtually every major theme in civil procedure, providing a road map for further exploration of how legal technology interacts with access to justice, aggregate litigation, confidentiality, innovation, litigation as democratic deliberation, managerial judging, private procedural ordering, professional responsibility, settlements, and trans-substantivity (just to name a few).

Cite as: Seth Endo, Charting the Interactions of Legal Tech and Civil Procedure, JOTWELL (July 1, 2020) (reviewing David Freeman Engstrom & Jonah B. Gelbach, Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. __ (forthcoming, 2020), available at SSRN),

Mischief and Snap Removal

Samuel L. Bray, The Mischief Rule, 109 Geo. L.J. ___ (forthcoming 2021), available at SSRN.

Civil Procedure may mark 1Ls’ first encounter with statutes and judicial interpretation and elaboration of statutory text. Some of the provisions in the canon are barebones to the point of meaningless without judicial elaboration— “short and plain statement of the claim” or a corporation’s “principal place of business” have no obvious meaning. Other statutes and rules are more substantial and allow for deeper textual parsing. Either way, statutory analysis remains an essential component of the study of courts law.

Samuel Bray’s The Mischief Rule reconsiders one rule of statutory interpretation that “instructs an interpreter to consider the problem to which the statute was addressed, and also the way in which the statute is a remedy for that problem.” The mischief rule asks what evil or danger a statute intended to cure and how it remedies that evil or danger. While the rule dates to Elizabethan times, it is misunderstood by defenders and critics. Bray resituates the rule as a tool for all interpretive methodologies.

The conventional narrative places the mischief rule within four key historical jurisprudential moments. The first is Heydon’s Case, a 1584 decision of the Court of the Exchequer; the second is Blackstone’s Commentaries on the Laws of England; the third is Hart & Sacks The Legal Process; and the fourth is Justice Scalia’s rejection in his book Reading Law and his opinion for the Court in Oncale v. Sundowner Offshore Services. But Bray argues that each moment misunderstands the rule. Heydon’s Case is not a “manifesto” for purposivism, but a guide to not reading statutes in a vacuum. Blackstone did not fully separate mischief from other interpretive considerations. Hart and Sacks conflate the mischief rule with purposivism. And working from that same conflation, Scalia rejects the mischief rule because he rejects purposivism. The result is that courts and scholars “slide” between mischief and purpose, using them interchangeably.

But there is “daylight” between the concepts. Mischief or evil operates prior and external to the enactment of the statute—mischief is the social problem and the deficiencies in existing law that allow the social problem to persist. Bray frames it as a logical progression: “Because of a, the action b, so that c.” The mischief is a, the social problem for which existing law is deficient and to which the statute responds; the legislative action is b, the statutory response to the mischief; the legislature’s purpose or goal going forward is c. Whether one believes the third step should matter (the point on which Scalia departs from Hart and Sacks), the mischief represents a distinct concept and a distinct step.

So conceptualized, the mischief rule performs two textual functions. First, it provides a rational stopping point in defining the scope of a statutory term. Considering mischief could prompt a narrower interpretation or a broader interpretation; either way, it guides the interpreter, focuses her attention, and allows her to express an intuition about the statute. Thus, a slug or squirrel is not an “animal” on the railroad tracks for which a train must stop, where the mischief is valuable farm animals such as cows being killed and derailing trains. Second, it allows courts to adopt modestly broader interpretations to thwart “clever evasions” of the text that perpetuate the mischief. Thus, “cattle” includes sheep, to prevent ranchers from grazing livestock other than cows on Indian land without tribal consent.

Bray’s rehabilitation of the mischief rule offers scholars and judges a solution to a current civil procedure problem—forum defendants and “snap removal.” The forum-defendant rule prohibits removal of diversity actions from state to federal court where one of the defendants is a citizen of the forum state. Diversity jurisdiction alleviates the mischief of local bias (or anti-local prejudice) in state court by offering the non-local party a structurally insulated forum. Congress recognized, however, that this mischief is not implicated where a non-forum plaintiff chooses to sue in the forum defendant’s home turf; removal in such case is unnecessary to further diversity’s purposes.

But the text precludes removal only where the forum defendant has been “properly joined and served.” That language targets a different mischief—cases in which the real target of the lawsuit is a non-forum defendant (who needs the federal forum) and the plaintiff includes a forum defendant against which it does not intend to proceed. A plaintiff can frustrate the non-forum defendant’s right to remove by including a forum defendant with no intention to even serve, keeping him in the case to prevent the non-forum defendant from removing. The “properly joined and served” language allows removal where the plaintiff never serves the forum defendant.

While protecting non-forum defendants from plaintiff gamesmanship, however, the text has enabled a clever evasion—the defendants, including forum defendants, snapping the case into federal court before the forum defendant can be served. Many district courts have allowed this practice despite its obvious inconsistency with the purposes of diversity jurisdiction and its obvious departure from congressional intent to proscribe removal by forum defendants. Other courts reject snap removal, but by express resort to legislative purpose and the absurdity canon to ignore or override plain statutory text. The Third Circuit even allowed removal where the sole defendant was from the forum, because the text was plain and the result not absurd.

Bray’s conception of the mischief rule suggests a way out. Congress included the “properly joined and served” language in response to the mischief of plaintiffs including forum defendants for show. In Bray’s logical progression: Because plaintiffs include unserved forum defendants for show (a), Congress limited the bar on removal to forum defendants properly joined and served (b), so that plaintiffs cannot frustrate non-forum defendants’ right to remove (c). But that mischief is not implicated where the plaintiff obviously intends to proceed against the forum defendant but has not had an opportunity to serve and has time remaining to do so.

Applying the mischief rule, a court might interpret “properly . . . served” to mean served prior to expiration of the time permitted for service by the forum rules; this reading precludes removal before the time for serving the forum defendant has lapsed. By modestly broadening “properly” to account for the entire service period, the statute focuses on the mischief of a plaintiff naming a forum defendant for show with no intent to serve, while preventing the creative evasion. This interpretation broadens the statute to preclude removal when time remains to properly serve the forum defendant, even if service has not yet been effected, while allowing removal once service time lapses and it is no longer legally possible to properly serve the forum defendant.

Arthur Hellman and his co-authors propose allowing plaintiffs to serve forum defendants post-removal and for post-removal service to provide a basis for remand. But they argue that this resolution requires congressional action, because statutory purpose and policy goals are insufficient to overcome plain language. This new mischief rule does not involve a similar overriding of text. Rather, the mischief informs the text and colors the court’s broader interpretation of the word “properly.” Courts focus existing text on the evil Congress had in mind—frustrating non-forum-defendant removal by naming a forum defendant without intention to proceed). The mischief-focused interpretation permits removal when that evil is implicated, while excluding from the text and prohibiting removal in the different case that does not implicate that evil (when the plaintiff has not had a full opportunity to serve the forum defendant).

Bray does not have civil procedure in mind in his article. He focuses on statutes and cases involving discriminatory state taxes on railroads, fish as a tangible object that cannot be destroyed, and the meaning of sex under Title VII. But his paper offers a key to resolving an ongoing civil procedure conundrum.

Cite as: Howard M. Wasserman, Mischief and Snap Removal, JOTWELL (June 3, 2020) (reviewing Samuel L. Bray, The Mischief Rule, 109 Geo. L.J. ___ (forthcoming 2021), available at SSRN),

Discretion, Division, and the Supreme Court’s Docket

Jonathan R. Nash & Michael G. Collins, The Certificate of Division and the Early Supreme Court, 94 S. Cal. L. Rev. __ (forthcoming 2021), available at SSRN.

The Constitution does not resolve foundational questions about the purpose and mechanics of the Supreme Court’s appellate jurisdiction. Should the nation’s highest court focus on resolving conflicts between lower courts, correcting errors, or opining on especially salient issues? And who should decide which appeals the Supreme Court will hear: the Justices by exercising discretion, Congress by enacting mandatory criteria, or lower courts by certifying issues for review? The Constitution’s flexibility regarding these questions creates leeway for experimentation.

A forthcoming article by Jonathan Nash and Michael Collins explores a fascinating jurisdictional experiment from the Court’s formative years. The experiment addressed tie votes arising from the quirky composition of circuit courts. Modern circuit courts sit in panels of three and primarily hear appeals. But for several decades circuit courts sat in panels of two and exercised both appellate and original jurisdiction. Panels typically consisted of one district judge and one Supreme Court Justice. The prospect of disagreement between the judge and Justice required a tiebreaking procedure.

Between 1802 and 1864, the tiebreaker for questions of law within the circuit court’s original jurisdiction was the “certificate of division.” The panel would certify the divisive legal question to the Supreme Court, which would provide a definitive answer. Certificates of division accounted for roughly 8% of the Supreme Court’s appellate docket during the relevant era. This percentage may seem low, but it was only slightly lower than the percentage of cases arriving from state courts by writ of error. Yet scholars have studied review of state court decisions by writ of error far more extensively than review of federal decisions by certificate of division.

Nash and Collins employ several methods to explore the certificate of division. They are historians excavating a largely forgotten past, empiricists analyzing original data, and creative federal courts scholars considering the modern implications of past practices. Each of these roles generates insightful conclusions and grist for future scholarship.

Two historical findings are especially intriguing. First, the article illuminates an underexplored dimension of the Court’s famous—and perhaps infamous—Swift v. Tyson decision. Swift authorized federal courts exercising diversity jurisdiction to apply their own interpretation of general law, even when that interpretation conflicted with otherwise controlling state court decisions. One of the dubious rationales for this rule was that federal court opinions applying general law would promote national uniformity by persuading state courts to adopt similar positions. The Court’s optimism about national uniformity raises a puzzling question: why did the Court think that it could harmonize general law decisions from multiple circuits given limits on its appellate jurisdiction over diversity cases? Part of the answer is that the certificate of division allowed the Court to adjudicate diversity cases over which it otherwise would have lacked jurisdiction. Swift itself arrived at the Court through a certificate of division. Accordingly, the certificate of division may have helped catalyze the pre-Erie approach to vertical choice of law. Future scholarship could quantify this influence by using the Nash and Collins dataset to analyze the role of general law in certified civil cases.

A second historical finding illustrates how discretion can insinuate itself into procedures that do not seem discretionary. The statute authorizing certification ostensibly created mandatory jurisdiction based on the objective fact of division. However, Justices riding circuit sometimes strategically disagreed with the district judge in order to manufacture Supreme Court jurisdiction. Justices acknowledged this contrived disagreement in opinions and private correspondence. For example, Chief Justice Marshall once lamented in a letter that because he was sitting alone as a trial judge, “I have not the privilege of dividing the court” and thereby elevating a “question of great consequence” to the Supreme Court. A certification procedure that in theory eschewed discretion by the Court thus in practice incentivized discretion by individual Justices. Rather than division producing jurisdiction, a desire for jurisdiction produced division.

Nash and Collins build on their historical observations about contrived division to reach empirical conclusions about how individual Justices exercised their discretion. Careful statistical analysis enables Nash and Collins to estimate whether a given Justice generated more or fewer certifications than one would expect from an average Justice. The data implies that some Justices embraced division, while others avoided it. Many factors could have influenced these voting patterns. But the article suggests that some Justices might have been especially inclined to shape the Supreme Court’s appellate docket through strategic voting in the circuit court. The certificate of division may therefore interest scholars who study strategic voting by Justices in other contexts, such as when Justices shape the Court’s appellate docket through the certiorari process.

The article concludes by discussing how the certificate of division can inform modern scholarship about federal jurisdiction. Nash and Collins propose potentially fruitful inquiries into the utility of interlocutory appeals, the balance between mandatory and discretionary review, and the optimal approach to breaking ties.

A testament to the article’s depth is that scholars can adopt it as a case study while addressing topics beyond those that Nash and Collins discuss. For example, certificates of division were designed to grant appellate jurisdiction over discrete aspects of a circuit court case rather than original jurisdiction over the entire case. To police the distinction between appellate and original jurisdiction, the Court developed the “whole case” doctrine. This doctrine considered whether a certificate formally purporting to trigger an appeal functionally shifted an original action from the circuit court to the Supreme Court. The modern and oft-misunderstood RookerFeldman doctrine requires an analogous effort to disentangle form and function. Under RookerFeldman, a losing party in a state court action cannot appeal the state court’s order to a federal district court under the guise of an original action. The doctrine considers whether a complaint formally purporting to trigger an original action functionally shifts the path of appeal. Thus both the whole case and RookerFeldmandoctrines delineate between appeals and original actions to determine whether one is masquerading as the other. Perhaps the Court’s struggle with this problem in the nineteenth century can inform the similar struggle that persists in the twenty-first century.

Nash and Collins have made a welcome contribution to several literatures. Their analysis of certificates of division is intrinsically interesting and concretely helpful for scholars grappling with vexing aspects of federal jurisdiction.

Cite as: Allan Erbsen, Discretion, Division, and the Supreme Court’s Docket, JOTWELL (May 15, 2020) (reviewing Jonathan R. Nash & Michael G. Collins, The Certificate of Division and the Early Supreme Court, 94 S. Cal. L. Rev. __ (forthcoming 2021), available at SSRN),

The Real World

Diane P. Wood, Sexual Harassment Litigation with a Dose of Reality, 2019 U. Chi. Legal F. 395.

I love being a JOTWELL contributor, but I am going to be real with you. Writing a Jot in the midst of a pandemic is fraught. I sit at my computer, often paralyzed, while questions run through my mind, such as: How do I write about the latest and greatest law review article as if everything around us is normal? How do I conjure the energy to focus on great scholarship when in the back of my mind I am just, well, worried?

I do not have many answers right now. But I do know one thing for sure: This community that we have built—scholars who have a deep interest in justice and how it works within our civil court system—is an amazing one. I have watched with awe as you have taught your classes, written your work, and kept things going with amazing grace. I am grateful for all of you and I am honored to be a part of your world.

So, in this Jot, I am going to do something a little different. One idea behind JOTWELL was to be something of a time saver. Each Jot draws attention to a great piece of legal scholarship. Given the reality of our current time constraints, I want to focus your attention on a new University of Chicago Legal Forum, Law in the Era of #MeToo. The online forum includes several great pieces. One notable inclusion is Judge Diane P. Wood’s Sexual Harassment Litigation with a Dose of Reality.

Judge Wood is a beloved jurist and renowned civil-procedure expert. This makes her real-world take on the state of sexual harassment litigation a great read. Judge Wood reminds us that Title VII of the Civil Rights Act has been on the books for more than fifty-five years. As the #MeToo movement starkly revealed, however, Title VII and similar laws meant to prohibit sex discrimination in the workplace and beyond have not done the job. This is true even when there is Supreme Court precedent that should be working. Cases such as Meritor Savings Bank v. Vinson (recognizing harassment in the absence of a quid pro quo) or Oncale v. Sundowner Offshores Services, Inc. (recognizing sexually harassment by a person of the same sex) have been in place for decades. But Judge Wood shows that in the real world, “even blatant cases of sexual harassment frequently fail” in our federal district and appellate courts.

To unpack why, Judge Wood surveys a set of Seventh Circuit sexual harassment cases. The cases are startling. First, lest anyone think that corporations and individuals are routinely slapped with sexual harassment lawsuits over “innocuous or misunderstood” behavior, these cases prove the opposite. The stories are harrowing. One female employee endured repeated sexual advances by her supervisor, including an episode where he followed her while she was on a walk and grabbed her. Another female worker was told by her supervisor that he could see down her blouse during her interview. That supervisor also repeatedly said things such as, “You know you want me, don’t you?” And still another male supervisor grabbed a female employee’s breasts and buttocks and, on another occasion, simulated a sexual act on her while holding a zucchini between his legs. In all of these cases and most others Judge Wood details, the female employees did not prevail.

Judge Wood explains that while her data are not comprehensive, these cases provide a unique window into how sexual harassment cases are handled in the real world. Sexual harassment cases are under-reported, and even when a court case is filed, it often settles. Thus, the cases in her survey represent the small number that proceed to summary judgment or trial. In many of these cases, the parties appealed on an agreed factual record.  This provides interesting insight. The agreement on the facts reveals what is actually occurring in the workplace. And the trial and appellate courts’ responses, as detailed in their opinions, provide a better sense of why these cases are unsuccessful.

What Judge Wood observes overall is that substantive and procedural blockades, combined with judicial skepticism of sexual harassment claims, render even the most dreadful of sexual-harassment cases dead on arrival. Despite the shocking nature of the harassing behavior, judges determined that the actions were not severe enough to affect a person’s employment experience. In other cases, the employee lost because she did not sufficiently apprise her employer of the abuse. In still other cases, the court could not connect the actions against the employee to her sex. Finally, sometimes employees chose the wrong legal theory—harassment instead of retaliation, for example—that proved fatal to their claims.

After examining why these cases fail, Judge Wood offers potential reforms. First, she calls for better reporting mechanisms. Employees often fail to report for fear they will not be believed or might lose their jobs. While retaliation laws help, they do not do enough; the law and our cultural response to complaints of workplace harassment must improve. Second, Judge Wood argues for reconsidering the structure of sexual harassment law, such as the problematic distinction between supervisory harassment and harassment by co-workers or customers. If a company has a well-written harassment policy, as most do, it is nearly impossible to get relief from the employer when co-workers or customers violate the law. Written policies will not eradicate sexual harassment, yet this fairly easy step will often immunize employers. These substantive rules misunderstand how sexual harassment functions in real life, and Judge Wood calls for their reconsideration.

Judge Wood lives in the real world of these cases. She sees them in the courtroom and she has witnessed how they have played out over the years. Her pragmatic assessment and prescriptions are all the more appealing. As we wrestle with our new reality on so many fronts, it is refreshing to read Judge Wood’s take on an area of the law where we certainly can do better.

Cite as: Brooke D. Coleman, The Real World, JOTWELL (April 20, 2020) (reviewing Diane P. Wood, Sexual Harassment Litigation with a Dose of Reality, 2019 U. Chi. Legal F. 395),

The Wild, Wild West for Low Wage Workers with Wage and Hour Claims

Llezlie L. Green, Wage Theft in Lawless Courts, 107 Cal. L. Rev. 1303 (2019).

People with low salaries recover less frequently for their claims against their employers than those with larger salaries. The problems include that lawyers lack the incentive to take these cases. They have less to gain monetarily, and the costs can even exceed the recovery. Professor Green tells us that low income individuals with wage and hour claims in small claims courts face these difficulties and more—indeed “wage theft” and it is theft condoned by the courts.

Professor Green opens her insightful article with a story about a case that her clinic tried. An hourly employee worked approximately 12 hours a day and was paid around $5 an hour. When she brought a wage and hour case in small claims court asserting $2500 in lost income, the court rejected the claim, concluding there was a simple contract between the worker and the employer—which had not been breached. The appellate court asked more questions and concluded that the wage and hour laws had been violated—awarding her $2,500.

Her client was fortunate. It takes money to appeal cases, and appellate courts may not always get it right. This typical case in a small claims court illustrates the wild, wild west for low wage workers. They may not recover—not because they do not have a good claim, but rather because the small claims courts do not know the law. This is not a small problem. A whopping 60% of workers may be underpaid.

Professor Green summarizes the wage and hour laws, including the Fair Labor Standards Act and state laws, which employers may violate by not compensating or not properly compensating workers. “Wage theft” significantly affects low wage workers’ bottom line, including the ability to pay for basic needs such as housing. While class action cases can help these workers, where class claims do not exist or are not feasible, these workers are left to bring their claims in small claims court on their own.

The procedure in small claims courts is designed to be simple and efficient. However, this can lead to problems. Pro se litigants often do not know the law, so they may not assert the right claims. Some judges in small claims courts may not even have a law degree, so pro se litigants may not be given adequate legal advice from them. Additionally, even a judge who has a legal background may not understand the wage and hour laws. Similar to the court in her legal clinic’s case, Professor Green argues that many small claims courts improperly interpret the law to be simply a contractual relationship governed by a Lochner-type analysis instead of protected by a set of federal and state laws.

Additional problems for employees with wage and hour claims include that employers are more likely to have witnesses—those who work for them—to support their side of the story. Moreover, courts tend to rely on unreliable stock stories or, in essence, stereotypes for what happened to an employee in any given case.

If a worker manages to win on liability, they may still lose. Workers are supposed to receive liquidated damages in the amount of double the back wages they lost to compensate them for the employer not paying them on time. This can help with losses such as late fees they had to pay when they could not make a payment. Although liquidated and treble damages in addition to attorneys’ fees are available, courts often do not award these damages and fees and grant only backpay. This leaves employers incentivized to underpay their employees. If sued by an employee, they will simply have to pay—with minimal fees for their attorneys—for nonpayment of wages.

To remedy wage theft, Professor Green argues for important changes to small claims courts based on safeguards discussed in the United States Supreme Court case of Turner v. Rogers. These include courts providing: basic information to plaintiffs about employees’ wage and hour rights under the law; a more specific form with wage and hour type questions; discovery; and an opportunity to present evidence that they are employees and not independent contractors. Additionally, courts should make express findings about the case, require employers to provide information about their ability to pay; and finally, require judicial training on the wage and hour laws. Professor Green also emphasizes the importance of a litigant informing the court of the case theory through a careful description of the facts and law.

Professor Green has a convincing argument. Who would want to litigate one of these claims in small claims court. Is it even fair that these claims are relegated to inferior treatment in these courts? Should juries decide these questions? That is a question for another day. In the meantime, reform is clearly necessary to ensure that workers are paid what they should be paid.

Cite as: Suja A. Thomas, The Wild, Wild West for Low Wage Workers with Wage and Hour Claims, JOTWELL (April 9, 2020) (reviewing Llezlie L. Green, Wage Theft in Lawless Courts, 107 Cal. L. Rev. 1303 (2019)),

Neither State Nor Federal Law

David S. Rubenstein, Supremacy, Inc., 67 UCLA L. Rev. ___  (forthcoming 2020), available at SSRN.

Legal scholars have long noted that the federal government increasingly outsources once-deemed-core governmental services to private contractors.  Similarly, scholars have often noted that the scope of government-contractor immunity under Boyle v. United Technologies Corporation and its progeny has metastasized. David Rubenstein’s recent article pushes us to view with a critical eye how these two doctrines work in concert to preempt swaths of state law, all without congressional action.

Rubenstein begins with an overview of history of government outsourcing.  While outsourcing of government functions is as old as the Republic itself, Rubenstein identifies the post-Watergate era as the inflection point for outsourcing, which exploded under both the Reagan and Clinton administrations. While this process has led to a well-recognized loss of congressional control over federal-government processes, Rubenstein argues that it has led to a “leveling down” of state authority as well by (1) occupying areas of traditional state regulation, (2) undercutting spaces for cooperative federalism actions, and (3) outright federal preemption.

Importantly for Rubenstein’s account, Congress did not authorize this aggressive clearing of state law. Rather, the act of contracting triggers federal contractors’ various supremacy claims. One might quibble as to whether the federal common law of contract is chosen by the contracting parties (as Rubenstein sees it) or acts as a background court-created doctrine that applies regards of the contracting parties choice (which I take to be the received view).  But this peripheral skirmish does not alter Rubenstein’s key insight that this explosive growth of federal contracting diminishes state authority without explicit congressional act. In his view, such supremacy claims for contractors require an act of Congress.

Rubenstein turns next to federal-contractor immunity and its under-studied interaction with federal preemption. He begins with the familiar history of contractor immunity’s growth from older intergovernmental immunity doctrine.  From this vantage, contractor immunity, at least as a starting point, forms a poor doctrinal fit as an outgrowth of intergovernmental immunity doctrine, because contractors lack the other electoral and institutional checks upon their conduct that limit governmental actors. Accepting, however, that the immunity ship has sailed, Rubenstein argues for less-than-full abolition of the doctrine in favor of flipping default rules for contractor immunity defenses. That is, contractor immunity should not apply by default but only by legislative action.

Pragmatically, Rubenstein paints an ugly picture of the current state of affairs.  Because of immunity, those who interact with federal contractors lack state regulatory protections. At the same time, any surviving state-law causes of action for relief are subject to federal-contractor defenses. And, of course, there is no general federal common law creating federal avenues to pursue relief.  Thus, federal contracts are subject to neither state nor federal law—only contract-review procedures. Government contractors benefit from acting as federal-government actors (being shielded from state law on supremacy grounds) and not acting as federal-government actors (being absolved from constitutional rules on non-public-action grounds). Rubenstein labels this state of affairs “Supremacy, Inc.”

Rubenstein’s piece, which reflects many of the hallmarks of his work, calls for us to look past formalistic mantras and examine how law impacts real people.  He engages in a detailed discussion of how Supremacy, Inc. worsens both the student-loan crisis and immigration detention. And, again a hallmark of his work, he avoids dogmatic solutions in favor of a call for Congress to exercise control—either way—and to imbue our privatization moment with greater democratic legitimacy. This nuanced and thoughtful piece is a “must read” for federal courts and constitutional law scholars.

Cite as: Lumen N. Mulligan, Neither State Nor Federal Law, JOTWELL (March 23, 2020) (reviewing David S. Rubenstein, Supremacy, Inc., 67 UCLA L. Rev. ___  (forthcoming 2020), available at SSRN),

Discovery and the Limits of Transsubstantivity

Diego A. Zambrano, Discovery as Regulation, 118 Mich. L. Rev. ___ (forthcoming 2020), available at SSRN.

Discovery is an instrument of litigation. It is thus unsurprising that most of the scholarship about discovery is itself instrumental–how to make it better or how to explain why it is not so bad. As Diego Zambrano argues in his forthcoming article, however, focusing on such questions misses the larger opportunity to interrogate the foundational purposes of discovery and to use these principles to shape the rules and practices of discovery. Zambrano’s article is a pathbreaking investigation of discovery as a process and an end in itself, rather than as a means to the “fairness-accuracy-settlement” model in which the “right” discovery rules match a commentator’s particular view about the values and purposes of litigation.

Zambrano uses private enforcement actions as his vehicle for taking a fresh look at the theories and principles behind discovery.  Private enforcement lawsuits are those in which “Congress deliberately employs private litigants as the main method of statutory enforcement.” This allows him to work with  the decades of research and arguments about the private lawsuits as key means of enforcing public law regimes.  Once we accept that lawsuits are a form of regulation, it seems quaint to limit discussions of discovery to the relative burdens and merits that discovery serves within a lawsuit. Rather, discovery is an independent regulatory tool, albeit a tool housed within private civil litigation rather than in a public administrative or regulatory body. Zambrano’s insight ties these arguments to specific regulatory mechanisms that can be replicated in or adapted to discovery—namely, the subpoena power of many administrative agencies. He argues that “[w]hether discovery costs are too high should depend less on a case’s amount in controversy and more on whether the case generates proportional regulatory benefits and fewer costs than a comparable agency investigation.”

What follows is a thorough and elegant examination of the relationship between discovery in private enforcement actions and the subpoena power of administrative agencies in analogous regulatory situations, where civil plaintiffs are “quasi-public investigators” and discovery is the “lynchpin of private enforcement.” By laying out the history and justifications for administrative agencies’ broad subpoena powers alongside the purposes of private enforcement litigation, Zambrano makes a persuasive case for a very permissive scope of discovery in these cases. By rooting his argument in the existing structure of American-style discovery, he makes a convincing case that discovery is not simply a tool of private enforcement litigation, but the backbone of private enforcement litigation.

Zambrano uses this inquiry to provide a unifying theory of discovery that moves the discourse beyond standard debates about instrumental justifications. Throughout the article, he is candid about the limitations of this approach.  Much of the force of his argument derives from the unique characteristics of private enforcement litigation, particularly that Congress has delegated much of the enforcement authority in the relevant statutory regimes to private parties. This, of course, excludes a large chunk of litigation based in state law and common law causes of action. Zambrano acknowledges that mass-tort and other complex litigation has a similar structure to private enforcement litigation in that “discovery in mass torts cases produces similar effects [as private enforcement litigation] so it may be illustrative of regulatory discovery.” But he also argues that mass tort litigation does not share the key quasi-public features that make private enforcement litigation such an ideal candidate for a theory of expansive discovery—private enforcement litigation is an extension of the congressional delegation of enforcement power that underlies the exercise of administrative subpoenas, while mass torts arise from a long common law tradition of state law.  Is it possible to have a unified theory of discovery that is premised so heavily on litigation to privately enforce public statutes and ignores a large swath of other litigation in federal courts? To the extent that the argument for discovery in these types of cases is exceptionally strong, one worries where the scope of discovery might land in a mass-tort MDL or any litigation at all outside of the federal system.

Towards the end of the article, Zambrano alights on the idea of trans-substantivity. He intuits that if his theory is heavily predicated on a type of litigation and causes of action that are uniquely situated in the American legal landscape, then he might have a problem with trans-substantivity–the principle (purportedly essential to the Federal Rules of Civil Procedure) that procedural rules apply uniformly across litigation without regard for the underlying substantive law. He points to Rule 26 and argues that the scope of discovery is non-trans-substantive—governed by a case-specific and discretionary standard that is capacious enough to accommodate different factual scenarios and broad enough to incorporate the underlying purposes of different causes of action, such as private enforcement actions.

While the appeal to the flexibility and broad discretion inherent in American discovery practice is a perfectly satisfactory answer, I think it is a missed opportunity to underscore the depth and importance of his article as a whole.  If we continue to conceive of American-style discovery as a means rather than an end, trans-substantivity forms a serious barrier to a theory whose strongest underpinnings are tied to the peculiarities of private enforcement litigation.  But once we have freed ourselves from framing discovery in almost exclusively instrumental terms, discuss it as its own end, and perhaps engage the vocabulary of remedies, the problem of trans-substantivity fades away.  If discovery is not primarily an instrument or tool of litigation, that tool need not be a one-size-fits-all affair.  It is within this larger reframing of the discovery debate that Zambrano’s article will make a lasting contribution that extends far beyond the private enforcement context.

Cite as: Robin J. Effron, Discovery and the Limits of Transsubstantivity, JOTWELL (March 9, 2020) (reviewing Diego A. Zambrano, Discovery as Regulation, 118 Mich. L. Rev. ___ (forthcoming 2020), available at SSRN),