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Rethinking Judicial Independence

Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. (forthcoming 2018), available at SSRN.

It is an extraordinary time when the following sentence—“it is hard to underestimate the importance of [X]”—has a plethora of topics all credibly vying for the position of “X.” Appreciating the competition, one would be hard-pressed not to include the independence of the judiciary as a prime candidate. When the eventual President calls into question the impartiality of a judge based on the judge’s “heritage” or when a court’s ruling on the administration’s travel ban might not be heeded, at least two conclusions can be drawn. First, the independence of the judiciary is presently being tested. Second, the independence of the judiciary may well be needed more than ever. Against such a backdrop, it is vital for current scholarship to provide a way to think through and assess that independence.

Enter Tara Leigh Grove’s thoughtful new article, The Origins (and Fragility) of Judicial Independence.

Drawing in part from her own (excellent) past work, Grove undertakes a significant examination of the independence of the federal judiciary. She traces the historical arcs of several key contestations between the judicial branch and one of its sibling branches, including the failure to comply with a court order, the potential removal of a judicial officer outside the impeachment process, and court packing. Though these contestations have received scholarly attention before, Grove brings them together in a new way. In so doing, she provides a persuasive account of how these various attempts to curb the courts were not only not verboten, but were embraced in the early days of the judiciary—and how political actors ultimately reversed their course.

To focus on one key interbranch standoff, Grove provides an important analysis of the history of court packing. Contrary to its current “off-the-wall” status (to use a Jack Balkinism), Grove points out that in the nineteenth century, Congress several times packed and unpacked the Supreme Court, at least in part for partisan gain. The article then examines FDR’s infamous 1937 proposal to increase the size of the Court and the debates surrounding that plan. (Here, Grove keeps good company. Others, such as my colleagues Curt Bradley and Neil Siegel, have also done important work identifying the constitutional conventions surrounding court packing.) For Grove, the point is that although there was some pushback against the President’s plan when first proposed, it was not until the late 1950s that court packing came to be viewed as a “negative precedent,” based on the way political actors publicly spoke about the ill-fated attempt. That treatment continues even to this day. Grove points to comments made in the context of now-Justice Gorsuch’s nomination to the Supreme Court to show that the convention against court packing is alive and well.

Grove ultimately draws together this and other episodes to make a larger statement about the independence of the judiciary. To use the author’s words, what we may today take for granted—specifically, the existence of certain norms or conventions against various court-curbing measures—we may need to reconsider. The text and structure of our Constitution do not put them in place. And Grove’s careful rendering of the past informs us that none of the attempts to encroach upon the judiciary’s power had to be resolved as each was. Those of us playing at home should keep in mind the contingent nature of the courts’ trajectory, and that what has been done can be undone in the future.This article makes a substantial contribution to the existing literature on judicial independence and simultaneously prompts several important questions. For one, might there be other ways of gauging judicial independence beyond the clearly significant ones Grove investigates? For example, in the early 2000s Congress contemplated requiring courts of appeals to publish all of their opinions, contrary to the courts’ own decision(s) to dispose a majority of cases via “unpublished” orders. This led to a confrontation between Congress and the judiciary and a question about the extent to which the courts’ own power to decide the form of its decisions could be curbed. I mention this point not to begin a game of everyone-pull-out-their-favorite-interbranch-contestation (that should be reserved strictly for social gatherings), but to question how we know we are looking at the “right” moments between the judiciary and its sibling branches and whether it might be worth including others in the canon.

Another question looks beyond the federal courts to their state counterparts. To again focus on court packing, it is remarkable how this court-curbing measure is “off the wall” with respect to the former, but is apparently on-the-wall with respect to the latter. A new report by Alicia Bannon and Nathaniel Sobel at the Brennan Center documents an increased politicization of state courts through various legislative measures, including recent attempts to increase or decrease the size of state appellate courts across the country. We might wonder more broadly to what extent conventions within the federal judiciary translate to the states. If the answer is “not much,” we should ask why this is so, and what this means for the independence of our state courts.

These questions further underscore the importance of what Grove has hit upon. The Origins (and Fragility) of Judicial Independence provides a careful and persuasive account of a vital topic, making a substantial contribution to an already robust literature. Such a contribution is critical now. One can only hope that her conclusion about the judiciary’s fragile independence is not tested any time soon.

Cite as: Marin Levy, Rethinking Judicial Independence, JOTWELL (June 5, 2017) (reviewing Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. (forthcoming 2018), available at SSRN), https://courtslaw.jotwell.com/rethinking-judicial-independence/.

What Judges Can Do About Implicit Bias

Andrew J. Wistrich & Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, in Ensuring Justice: Reducing Bias 87 (Sarah Redfield ed., forthcoming 2017), available at SSRN.

For some years now, scholars have discussed the influence of implicit bias on decision-making. While many argue that conscious bias is decreasing,1 studies show that the impact of unconscious bias is significant. Although scholars, including Judge Andrew Wistrich and Jeffrey Rachlinski, have shown that judges possess such bias, judges—SCOTUS included—have not been sufficiently aware of the problem. The relatively recent change to the standard for dismissing a claim on a Rule 12(b)(6) motion illustrates this point.

In Bell Atlantic Corporation v. Twombly, Justice Souter formulated the new plausibility standard for deciding whether a claim should be dismissed. Later, in Ashcroft v. Iqbal, Justice Kennedy expounded on this new interpretation, stating that a judge should rely on her “judicial experience and common sense” to decide whether a claim should be dismissed. Despite the importance of this modern invocation, the Court cited no evidence to support relying on these intuitions. Scholars, including Steve Burbank, publicly questioned the use of this information as inviting subjective judgments by judges to dismiss cases that they disfavor. But courts continue to embrace this SCOTUS-endorsed phrase and employ it in their quest to decide whether claims should be dismissed. Should they?

Judge Wistrich and Rachlinski’s important contribution to a new American Bar Association book, Ensuring Justice: Reducing Bias, should call into question the Iqbal rule that courts use their judicial experience and common sense. The authors show that judges’ decision-making may be compromised by implicit bias and discuss what judges can do to combat this bias.

The authors first explain that people decide in two different ways: intuitive and deliberative. Intuitive decision-making is instinctual and emotional—referred to at times by psychologists as System 1 reasoning. Deliberative decision-making involves consciousness, effort, and time and is referred to at times by psychologists as System 2 reasoning. Where the two types of reasoning conflict, people—including judges—tend to rely on intuition.

But intuition can hamper judicial decision-making. For example, studies have shown that a number that is irrelevant to a determination of damages can influence a judge’s decision regarding damages and that a judge likely also will consider inadmissible evidence. Additionally, while judges may deny the influence of emotions, emotions are a part of intuitive decision-making. Based on irrelevant emotions, judges may decide an issue of statutory interpretation favorably for the defendant because of certain characteristics of that individual, such as why they took a drug. Intuition also tends to make people possess bias toward their own groups. For example, a study demonstrated that a group of judges exhibited bias toward litigants from their own state. Racial bias may be another type of in-group bias. Using the Implicit Association Test (IAT), the authors found that judges possess the same level of implicit bias against African-Americans as most lay adults.

These studies show judges are human—sharing problems that the rest of us face. Thankfully, judges can try to combat these issues. First, deliberative, System 2 decision-making can help judges avert their reliance on intuition—that is, knowing they have bias can help judges avoid their bias. Second, several different tests and methods can aid judges. For example, they can take the IAT, which permits them to understand that they may need to account for implicit bias and alerts others to the need for training judges who possess such bias. Because judges tend to think they are better than most at avoiding racial bias, actually taking the test will be a particularly useful first step to lessen the effects of bias.

In addition to awareness through the IAT, the authors propose a variety of ways to combat bias, only a few of which I highlight here. Increasing from one to three the number of trial judges who decide any important issue is a particularly innovative, interesting proposal. While the authors recognize the difficulty of implementation given the current allocation of resources, their idea is compelling because of the noted research on how outcomes improve by increasing diversity on appellate panels. Additionally, I want to point out that historically the importance of more than one judge deciding an issue was recognized. In late eighteenth-century England, a panel of three judges would determine issues such as whether a new trial should be ordered in a case or whether a case should be dismissed on a demurrer.

The authors propose a number of other ways to reduce implicit bias in the judiciary. Another favorite of mine is mindfulness meditation. Mindfulness is popular these days. It’s used in companies and classrooms to train people to recognize their thoughts and emotions that arise, but to let go of them to be in the present. We encourage students at the University of Illinois to consider practicing it to reduce stress. The authors argue that mindfulness may help judges curb their reliance on inappropriate reactions.

Judge Wistrich and Rachlinski recognize that there are also indirect ways that implicit bias can be countered. For example, judges may rely less on intuitive decision-making if the time for decision-making were increased and more written opinions were required.

The authors also emphasize that others who help judges, such as police and prosecutors, should be trained to combat the implicit bias that they possess.

Judge Wistrich and Rachlinski’s chapter and previous work on implicit bias in the judiciary are incredibly important. The chapter helps us to understand influences on judicial decision-making and how to combat these problems. Through the chapter, the ABA book, and other efforts, such as training of judges by the Federal Judicial Center under the leadership of Judge Jeremy Fogel, important efforts to reduce implicit bias are underway.

Lastly, the authors’ chapter on implicit bias should specifically call into question the Supreme Court’s admonition in Iqbal that judges should rely on their “judicial experience and common sense”—a phrase—as I mentioned—that the trial and appellate courts continue to invoke in their opinions.

  1. Despite these arguments, my co-author and I show that quite a bit of conscious bias remains in employment settings. Sandra Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law (2017). []
Cite as: Suja A. Thomas, What Judges Can Do About Implicit Bias, JOTWELL (May 22, 2017) (reviewing Andrew J. Wistrich & Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, in Ensuring Justice: Reducing Bias 87 (Sarah Redfield ed., forthcoming 2017), available at SSRN), https://courtslaw.jotwell.com/what-judges-can-do-about-implicit-bias/.

But the Feds Do It That Way!

Stephen N. Subrin & Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (2016).

Although state courts handle roughly ninety-five percent of all civil cases, federal procedural law dominates reform initiatives, academic discussions, and legislative attention. In line with this federal focus, there continues to be a push for state court systems to conform their civil procedural rules to the most recent amended version of the Federal Rules of Civil Procedure. In their new article, Stephen Subrin and Thomas Main reject this unreflective state emulation of federal procedure.

Subrin and Main begin by demonstrating that the original promise that the Federal Rules would lead to universal uniformity has not been met. They track this lack of uniformity across four dimensions.

First, the promise of trans-substantive uniformity has not been met. That desire pushes Federal Rules drafters toward a standards-based approach, as opposed to a rules-based approach, to procedural law. This, in turn, leads to substantial disuniformity in practice, given the discretion inherent in a standards-based system.

Second, the promise of uniformity across federal districts has not been met. Subrin and Main point to the explosion of Local Rules made pursuant to Federal Rule 83; the Civil Justice Reform Act of 1990, with its requirement that each district adopt a plan to address the expense and delay of litigation; and general orders, standing orders, special orders, scheduling orders, minute orders, and other practices of individual judges, all of which diminish uniformity across federal districts. See, e.g., Guidelines and Orders (D. Kan. 2017).

Third, prior to the adoption of the Federal Rules in 1938, the Conformity Act of 1872 provided intrastate uniformity of procedure (at least for suits at law) between state courts and federal courts sitting in the same state. While the adoption of the Federal Rules disrupted this intrastate uniformity, the drafters assured the bar that the states would soon adopt the Federal Rules and restore intrastate uniformity. While small-population states by and large adopted the Federal Rules as their state procedural model by the mid-1970s, nine out of ten of the largest-population states still have not. And, Subrin and Main claim, even the adopting states themselves often decline to enact newly promulgated, substantial amendments to the Federal Rules.

Fourth, because they assumed states would adopt the Federal Rules as a model, the drafters promised interstate uniformity of procedure as well. For the reasons recounted above, this promise has not been met, either. Subrin and Main’s point in demonstrating these failings in the creation of intra-jurisdictional uniformity is to suggest that the entire goal of creating unity by way of textual rule is quixotic. Thus, they suggest, the entire goal of seeking state and federal procedural unity is not a sound one.

In the second half of the article, Subrin and Main more pointedly address why states’ unreflective emulation of the Federal Rules constitutes poor policy. They offer numerous grounds for consideration:

  1. The Federal Civil Rules Advisory Committee has been biased toward defendants for decades, recounting a series of studies in support of this proposition. The Federal Committee obsesses over “big discovery” cases, although such cases form a very small statistical slice of the federal civil docket, (I hope the reader will excuse one lengthy parenthetical, but this is a point worth repeating often: There is no empirical evidence for the idea that discovery is explosively expensive in the overwhelming majority of cases. See Emery G. Lee III & Thomas E. Willging, Fed. Judicial Ctr., National, Case-Based Civil Rules Survey: Preliminary Report to the Judicial Conference 43 (2009), (concluding that, at the median, discovery cost about 1.6% of the stakes for plaintiffs and 3.3% of the stakes for defendants in 2009 with the median stakes coming in at $160,000); Emery G. Lee III & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation, 60 Duke L.J. 765, 773–74 (2010) (finding that “[discovery] costs are generally proportionate” to client stakes in the litigation); Thomas E. Willging et al., An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B.C. L. Rev. 525, 525, 531 (1998) finding similar results just ten years earlier); see also James S. Kakalik et al., Inst. for Civil Justice, Discovery Management: Further Analysis of the Civil Justice Reform Act Evaluation Data xxvii (1998), http://www.rand.org/pubs/monograph_reports/2009/MR941.pdf (“Discovery is not a pervasive litigation cost problem for the majority of cases.”). Explosive discovery cost cases account for 5%-15% of cases, depending on the year or the study. See, e.g.,  Suja A. Thomas & Dawson Price, How Atypical Cases Make Bad Rules: A Commentary on the Rulemaking Process, 15 Nev. L.J. 1141, 1147–49 (2015).) much less the state court dockets.
  1. State and federal systems face meaningfully different dockets and different docket concerns. Awards in state court are radically lower, with nearly 75% of matters resolving for less than $5200. More parties are unrepresented in state court, with 75% of matters involving at least one pro se party. Matters resolve more rapidly in state court, with nearly 75% of matters coming to resolution in less than a year. And state-court cases skew greatly toward non-complex collection actions, with contract claims accounting for 66% of the state dockets and torts accounting for but 7% of the docket.
  2. The multiplicity of post-1938 amendments to the Federal Rules have rendered federal procedure more expensive to litigants, more time consuming, and more subject to judicial discretion. Doubling down on the expense point, they argue that the federal approach requires more judicial-branch financial resources than most states can afford.
  3. States can and should experiment with procedure.

There is much to appreciate in this paper. Subrin and Main’s argument constitutes a helpful reminder that state courts are not a discount brand of the federal courts. They are different institutions performing different tasks, working under different funding models, and serving different stakeholders. As someone who works on his state civil rules advisory committee, I appreciate the reminder that the needs of the state courts often are substantially different from those of the federal system’s. I fully embrace their full-throated federalism approach in principle.

Other aspects of the paper, however, gave me some pause. Subrin and Main express great discomfort with district court discretion in procedure, typically on the ground that a standards-based approach does not lead to uniformity. Assuming this is true, I do not see why a state court system should overly care about uniformity in procedural outcomes per se, assuming uniform application of a discretionary standard. This is to say, I do not see Subrin and Main make the argument that discretionary standards per se are to be avoided in state courts where, one presumes, there is not a historical commitment to uniformity akin to that found with the Federal Rules. Discretion often is good. Implementing state procedural policy though adjudication could avoid many of the problems with rules in the first place, because case-by-case decisionmaking is more flexible, dynamic, and incremental than rulemaking, in addition to being cheaper and easier to utilize in some circumstances.

For these reasons, administrative law—which is my favored interpretive approach to procedural matters—contains several doctrines that allow administrators to exercise equitable discretion and soften the hard edges of bright-line rules in particular cases. As Glen Staszewski and I have discussed elsewhere, trial-court discretion can be a sound procedural policy precisely because trial-court judges are typically better situated than rules drafters or appellate judges to make fine-grained procedural decisions based on their relevant experience and perspective.

Several of Subrin and Main’s arguments described above can be fairly grouped under an agency-capture heading. To be sure, the federal Civil Rules Advisory system has flaws—big ones, as I have outlined in prior work. Yet there may still be good reason for states to adopt the content of the Federal Rules. First, state-court rule drafters are not freed from these same political and capture concerns. Many states craft rules as statutes. Yet, I do not believe state legislators en masse will have greater expertise in this area than the Federal Advisory Committee or be less pressured from intensive interest-group lobbying than the Federal Advisory Committee. Often, a policy of “Our state follows the federal rules” stops a lot of injury off the top. Second, even in states that have advisory drafting committees, there is little evidence that these drafters will not have biases and concerns over capture, be they pro-defense or otherwise, similar to the Federal Advisory Committee’s. Third, as Subrin and Main argue, state judiciary budgets are under extreme stress, meaning there are no funds for the empirical work, which we have at the federal level, that should inform sound state rule creation. Lastly, because the Federal Advisory Committee’s work is high-profile, various interest groups can organize to follow the Committee’s recommendations closely and object to reforms these competing interest groups deem ill-advised. For example, in response to the aggressive anti-discovery amendments flowing out of the 2010 Duke Conference, more than 2300 comments were lodged with the Federal Committee. These organized movements forced substantial changes to the amendments proffered. It is not clear to me that proposed state procedural reforms have the same avenues for dissent, even if they are as closely watched as the Federal Committee’s work—which seems a dubious proposition in many states to begin with. The point is that a preference for state-level rulemaking should not idealize state rule-drafting processes. They make sausage in the state house as well.

These thoughts aside, any serious student of procedure should read this piece. It is thoughtful. It is provocative. It is well researched. And it is a lot of fun to read. Download it while supplies last!

Cite as: Lumen N. Mulligan, But the Feds Do It That Way!, JOTWELL (May 8, 2017) (reviewing Stephen N. Subrin & Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (2016)), https://courtslaw.jotwell.com/but-the-feds-do-it-that-way/.

A Well-Pleaded Argument

Lonny Hoffman, Plausible Theory, Implausible Conclusions, 83 U. Chicago L. Rev. Online 143 (2016).

I should start by putting my own bias on the table: I think the changes to pleading standards brought about by Twombly and (especially) Iqbal are a really bad idea. Procedural systems that turn on early pleading of factual detail have failed for centuries to provide either accurate or efficient results. Rather, gatekeeping based on pleadings encourages and rewards pleading disputes, leads to wasteful motion practice about degrees of particularity, and, worse, the dismissal of meritorious claims under conditions of information asymmetry. Even if I did not hold these views, however, I would find much to admire in Lonny Hoffman’s elegantly structured response to William H.J. Hubbard’s article, A Fresh Look at Plausibility Pleading, an article that doubts that “plausibility” analysis has much impact and suggests that plaintiffs with weak cases are better off losing quickly.

Hubbard’s piece is a fascinating thought experiment: what if there were no pleading standards, so that decisions about what cases to bring and how to plead them were entirely in the hands of plaintiff-side lawyers? It is generally agreed that lawyers play a gatekeeping role in litigation. In fact, lawyer gatekeeping itself represents only a tip of the no-lawsuit iceberg, since studies consistently show that most people with a potential justiciable claim do not even consult an attorney. (American Bar Association, Legal Needs and Civil Justice: A Survey of Americans, Major Findings of the Comprehensive Legal Needs Study (1994); Hazel Genn, Paths to Justice: What People Do and Think About Going to Law (1999).) Nevertheless, Hubbard’s article contributed to the discussion by updating and attempting to quantify this effect.

Hoffman describes the way in which Hubbard combines economic theory with data from the Federal Judicial Center about median case values and litigation costs. As a result of this cost/benefit calculus, most meritless and very weak cases will not be brought at all. One might conclude from this that an additional rigorous screening mechanism is unnecessary (Hoffman) or unlikely to make a difference (Hubbard).

Hoffman’s article proceeds to tackle important flaws in Hubbard’s descriptive and normative conclusions, starting with the problem of information asymmetry. Hoffman concisely describes the problem:

How do information imbalances that favor the defendant (such as those in cases that turn on the defendant’s state of mind or on wrongful conduct that occurred in private) interact with a strict pleading filter? And the answer, as many scholars have noted, is that, when relevant information is primarily in the possession of the defendant, plausibility pleading can create a catch-22: the plaintiff needs access to information to plead sufficiently, but a pleading stage dismissal denies her the information that would have enabled her to plead a nonconclusory, plausible claim.

Hubbard recognizes that there may be many meritorious cases in which a lack of information at the outset leads to dismissal in the “plausible” pleading regime, but argues that those cases are doomed to lose in any case – that it is a lack of “facts” rather than the pleading rules that defeat such a plaintiff. As Hoffman’s article points out, however, this is just wrong. It is not that there are no facts to support this type of claim, but that without discovery the would-be plaintiff has no access to those facts. We should not assume that case-supporting information would not be discovered. The problem is exactly that a pleadings-based dismissal prevents the equalizing of information, not that the information must forever remain asymmetric.

Further, the pleading barrier might skew the lawyer-gatekeeping process so that fewer claims are even filed – the lack of discovery forces the lawyer to evaluate the probability of success based solely on facts known to the potential plaintiff, unaided by discovery. This is true not because a loss at trial would be inevitable, but because the lawyer knows that the pleading rule will allow no discovery. Because of the combined effects of dismissals and gatekeeping, the pleading filter will mean that private enforcement of civil norms will fail when it should have succeeded.

Hoffman’s article also points out that pleading-based regimes increase cost and decrease accuracy. In order to understand why this is so, one must understand that Iqbal requires a two-step inquiry. First, judges are instructed to go through the complaint to identify and consider only allegations of facts, ignoring things that are conclusory. In cases in which the plaintiff knows, and can plead, direct evidence of the defendant’s liability, there will likely be no motion to dismiss filed.

Many cases, however, will turn on circumstantial “facts,” and ultimately on the question of whether those facts support the inference needed to prove liability. The tricky and unpredictable task of separating facts from conclusions may well lead judges to discard as “conclusory” allegations that explicitly draw those inferences, leaving only isolated nuggets of information. The question is often not “no facts” versus “conclusive facts.” It is “some facts” that are within the plaintiff’s knowledge at the pleading stage. Consider an employment discrimination example. Suppose that the complaint states that the plaintiff’s supervisor called her an “ugly bitch” on two occasions, but did not do so when explaining why the plaintiff was not promoted. That namecalling is a “fact,” but an allegation that the plaintiff was denied a promotion based on sex might be disregarded as conclusory. (I’d disagree with calling it conclusory, but it’s certainly possible that a judge would do so.)

The analysis thus turns to the second step: do the non-conclusory nuggets of information plausibly support the needed inference? Iqbal provides little guidance on what this test means or what the judge may consider, but does suggest that the inference must be at least as plausible as competing inferences (fifty percent or better?), and that the judge should use his “experience and common sense” in making this decision.

Not surprisingly, this sketchily explained, fact-dependent analysis makes it very difficult to predict how a judge would rule on a Rule 12(b)(6) motion in any particular case. Consider, again, the employment example. Does the judge’s experience suggest that the use of such language supports an inference that the supervisor’s attitudes toward women affected the promotion decision? Does the judge’s experience suggest that the language is meaningless locker room talk? If the motion to dismiss is denied, the plaintiff will have the opportunity to do discovery to try to unearth additional circumstantial evidence of discrimination, which could strengthen the basis for an inference of discrimination. If the motion is granted, the plaintiff will never have the opportunity to learn what information available only to the defendant might reveal. With nothing more than the sexist epithets, the plaintiff might lose even on summary judgment under substantive Title VII law; but the summary judgment decision would not be made until after an opportunity to do discovery, while the 12(b)(6) decision is based on only those “facts” available to the plaintiff at the outset.

Given this process, I find interesting two of Hoffman’s points about early merits decisions mandated by pleading practice. First, the newly invigorated motion to dismiss comes with a cost to the court system. The existence of a high-reward-low-risk motion to dismiss has increased the frequency with which such motions are filed. Why would a rational defendant not routinely file such a motion – given the fuzziness of the law, such motions will not violate Rule 11, will cost plaintiffs time and money, will reveal much about what the plaintiff knows (and does not know), and may even result in dismissal. As I have written previously, this is consistent with the experience of countries whose civil justice systems continue to use pleadings as a tool for screening and issue-narrowing – the energy that U.S. lawyers spend on discovery disputes is, in those countries, poured into fights about pleading.

Because the rate of pleadings-motion practice has increased, the cost to courts and parties of those motions has also increased. In assessing systemic impact, that cost must be subtracted from whatever savings might result from the early dismissal of a small number of cases (as Hoffman reminds us, Hubbard contends that since lawyers already avoid filing weak cases in most situations, this number will be small). Unsuccessful motions will take more time and result in no cost savings to the court or the parties. A 12(b)(6) dismissal, if without prejudice, allows the plaintiff a second chance to plead more “facts,” and in some situations the plaintiff might have access to the necessary information. But those motions that result in a more detailed amended complaint but not dismissal are also unlikely to save costs, unless the amended complaint limits the issues (and thus discovery) in a way that the original would not have done. For example, it seems unlikely that the amended complaint in Branham v. Dolgencorp (in which the court dismissed as insufficient a complaint that clearly met the requirements of the then-existing negligence form pleading) saved any expense that would have been incurred under the original bare-bones slip-and-fall complaint. Even successful motions to dismiss on the pleadings will vary in the marginal cost savings of foregone case management and dispute resolution prior to settlement (court) plus foregone discovery expense (parties). And while some parties and courts might save costs, it will come at the expense of increased costs for other courts and litigants.

Second, early pleadings-based decisions require an undesirable change in judicial role. Hubbard argues that early dismissal is better for plaintiffs, even in the case of the intentionally biased judge. It is still better, he suggests, to lose sooner than later. But, Hoffman argues, this straw-man image of judicial malice ignores the real problem: the common combination of sparse facts and implicit bias causes even well-meaning judges to make worse decisions. It is becoming increasingly clear that all of us, including judges, perceive the world through a set of attitudes and stereotypes – implicit biases – that arise out of precisely the factors that Iqbal directs judges to use in making plausibility decisions, our “experience and common sense.” While judges can make an effort to become more aware of, and try to counteract, their own biases, doing so is much more difficult in situations in which information is sparse. Returning to the problem of information asymmetry, the information-poor plaintiff may not be able to provide a rich enough body of “facts” to convince a judge, perhaps against his experience and common sense, that a needed inference is plausible.

Hubbard may be correct that we will not soon have conclusive empirical evidence about the impact of Twiqbal on access to justice. Unfortunately, Hubbard’s Fresh Look discounts the ability of the civil procedure process to counter other problems. Information asymmetry? That is the problem, not the pleading rule (even though a different pleading rule could allow information exchange). Biased judges? That is the problem, not a pleading rule that helps empower and disguise that bias (when a different pleading rule would deter bias-based outcomes). As Hoffman’s article demonstrates, information matters and reliable process matters. The world prior to Iqbal was different in important ways, and we should not assume away its effects.

Cite as: Elizabeth G. Thornburg, A Well-Pleaded Argument, JOTWELL (April 24, 2017) (reviewing Lonny Hoffman, Plausible Theory, Implausible Conclusions, 83 U. Chicago L. Rev. Online 143 (2016)), https://courtslaw.jotwell.com/a-well-pleaded-argument/.

Erie and Equity

Michael T. Morley, The Federal Equity Power (March 1, 2017), available at SSRN.

Michael Morley has many skills we admire in a scholar: he is doggedly productive; he has an easy command of the established authorities; and he typically identifies sources that shed new light on the problem he has chosen to tackle. Perhaps best of all, Morley has a canny eye for the kind of project that has become ripe for careful exploration. His new article on the federal equity power confirms this.

We have enjoyed something of an equity renaissance in recent years. The Supreme Court has been busy, fashioning a body of federal equity law for application to a diverse array of problems. To be sure, the Court’s handiwork has drawn its share of criticisms, perhaps most pointedly from John Langbein. But it also has its share of defenders. In an elegant piece of writing (reviewed in JOTWELL), Sam Bray celebrated the Court’s new equity jurisprudence as a flexible body of principles drawn from the days of the divided bench. While Bray recognized that the Court’s equity might not pass muster as good history, he argued that it might nonetheless provide the foundation for a supple body of law.

Understanding the nature of federal equity power has become more pressing in the wake of the Court’s decision in Armstrong v. Exceptional Child Center. There, the Court refused to treat an action to compel state compliance with a cooperative state-federal spending program as an entailment of the Supremacy Clause; instead, the Court explained that the right to seek an injunction to compel state official compliance with federal norms was a creature of federal equity. While such remedies were ordinarily available to enforce certain federal rights (as in Ex parte Young and its progeny), they were displaced in the particular case by a federal Spending Clause statute that appeared to place remedial control in the state’s overseers at the federal agency level. Private enforcement had been displaced.

Along comes Morley to make sense of the federal equity power. While he does not set out to solve the Armstrong problem, his paper possesses an admirable clarity. He would extend Erie to issues of remedial power that some federal courts continue to view as governed by the equity power of the federal forum. His approach would significantly curtail the availability of a freestanding body of federal equity in cases otherwise governed by state law. By contrast, when the substantive right traces to a foundation in federal law, Morley would recognize broader federal equity power.

In doing so, Morley marshals a good deal of common sense, pointing out that equitable remedies create the outcome disparities that ordinarily bring the Erie Doctrine into play. He also shows that one cannot fairly link the federal equity power to any positive source in the federal rules of civil procedure or in applicable federal jurisdictional statutes, thus leaving it exposed as a body of judge-made law to which the Erie doctrine (the “relatively unguided Erie choice”) applies with full force. Morley echoes conclusions that Steve Burbank also reached in a different context, arguing against the Court’s reliance on federal (rather than state) equitable principles in assessing the availability of Mareva injunctions in Grupo Mexicano.

One might fairly ask how much difference it will make if a federal court were to evaluate the propriety of preliminary injunctive relief under a federal or state standard; after all, most standards consider such matters as irreparable harm and likelihood of success on the merits. And a federal judge, sitting in diversity, will evaluate likelihood of success by looking at the merits of the claim under applicable state law. To the extent that equity calls for the exercise of judicial discretion in weighing matters of more or less, the way one frames the standard may matter less than the proverbial size of the chancellor’s foot. But where state law speaks in more absolute terms, either requiring or forbidding injunctions in specific settings, the choice of state or federal remedial law can make all the difference. In those settings, remedial choices have a more dramatic impact on outcomes and on forum preferences, thus triggering the concerns that continue to underpin Erie. When a state says no to an equitable remedy on matters governed by state law, federal courts should pay attention; after all, we would expect a state court to refrain from equitable enforcement of the federal norms that the Armstrong Court said were a matter for federal agency enforcement.

Morley teaches another important and subtle lesson. By describing the world of pre-Erie, free-wheeling federal equity and contrasting it with the more circumscribed perception of federal common law authority today, Morley helps us understand nineteenth-century perceptions of federal equity as a system of remedies. He also shows that it can be quite difficult to account for the particular content of much of the old doctrine. Sometimes equity took its cues from English practice, sometimes from perceptions of remedial adequacy at common law, sometimes from more localized considerations. In the welter of doctrines, one has difficulty distilling an essence of equity that readily translates to our very different world of litigation today, after the merger of law and equity. This offers a cautionary tale for a Court apparently devoted to dusting off the old books and plucking equity doctrines of old for use as the measure of federal equity today.

Cite as: James E. Pfander, Erie and Equity, JOTWELL (April 4, 2017) (reviewing Michael T. Morley, The Federal Equity Power (March 1, 2017), available at SSRN), https://courtslaw.jotwell.com/erie-and-equity/.

Do Claims About Claims to Claims Matter?

J. Maria Glover, A Regulatory Theory of Legal Claims, 70 Vand. L. Rev. 221 (2017).

Oftentimes when we call a thing someone’s “property,” we do so to invoke a very specific picture of the owner’s rights to that thing. To call something “property” often entails significant limits to what one can do to regulate the thing. The Due Process Clause and Takings Clause both enter the picture. Even outside of legal discourse, the term “property” has a rhetorical power that brings to mind what Blackstone called the “sole and despotic dominion” one can exercise over the thing. That is why “[m]ine is often one of the first words toddlers learn.” To quote an old American Express commercial, ownership, like membership, “has its privileges.”

So one would think that conceptualizing a thing as “property” would have an important effect on how we think about the thing. But what if it doesn’t? What if it actually leads to inconsistent, irreconcilable views in different contexts? What if it turns out that thinking about something as “property” does not provide much analytic clarity at all?

This is the bold thesis of J. Maria Glover’s A Regulatory Theory of Legal Claims, where Glover takes on longstanding debates about the conceptual status of the legal claim. Civil procedure scholars continue to debate whether the legal claim is a party’s “property,” as opposed to an aspect of procedure that is subject to the discretionary regulation of the court. Glover’s goal is not to resolve the debate but to dissolve it, as a debate that does not have the significance that the debaters give it.

Her technique is quite clever. She examines the state of the debate in different procedural contexts to show that conceptualizing the claim as property can lead to different, often inconsistent views depending on the context.

Take, for example, the class action context. The class action has often been criticized because it takes away a class member’s control over her claim, and thus takes away an important stick in the property rights bundle. In fact, a class attorney can sell the class member’s property in a settlement without the class members’ consent. For that reason, courts and scholars have been wary of certifying class actions in many contexts. Consider, for example, Justice Scalia’s throwaway line in Wal-Mart Stores, Inc. v. Dukes, that class actions for injunctive relief “rightly or wrongly” do not require notice of the class action for the class members or provide an opportunity for the class members to opt out.

But if the class action can be understood as a “taking” of the party’s control over her claim, then a party should obviously have the power to sell the claim to whomever he or she wants. Not so fast. For example, recently there has been a rise in “alternative litigation finance,” understood as attempts to finance litigation by selling shares in a claim’s recovery. At the same time, there has been a rise in lobbying efforts to change the laws of champerty and maintenance, which prohibit such claim selling. One would think that, given the paternalistic bent of the class action, plaintiffs’ attorneys would work hard to preserve champerty and maintenance laws to protect the naïve interests of the claimholders. Similarly, one would think that the defendants’ bar, as champions of the property rights of the claimholders, would push for greater opportunities to sell claims. But the opposite is true, as Glover points out – plaintiffs’ attorneys love litigation finance and the defense bar hates it.

Glover’s point is not to identify hypocrisy in the debate over the status of the claim. Her point is to question the very debate itself. As property scholars have long understood, property rights in a thing are never absolute and are frequently regulated depending on the objectives of the law. I may own the land where my residence is located, but I may have to grant an easement to allow public access to the beach. Consequently, calling something “property” does not negate the ability of courts and legislators to restrict an owner’s use of it.

Glover seeks to import that property-law insight into procedure, not by settling whether the claim is property, but by looking at the objectives of the claim. Moving in a more functionalist direction, Glover argues that the extent of a claimholder’s control rights over her claim depends on the objectives that litigation of the claim is meant to achieve. As I have argued in my own work, if protecting control rights in a claim can lead to worse compensation and deterrence in certain contexts, we should not protect them. But if protecting control rights would help (or at least not impede) underlying substantive rights, then, by all means, protect those rights. These positions are not inconsistent because they are unified by the same objective of property law in general—that the regulation of one’s control over a thing should depend on what the law, and by extension society, wants to achieve.

This is why Glover calls her theory a “regulatory” theory of the claim, and in the latter part of the article Glover discusses the implications of taking this approach to contexts such as Rule 68 offers of judgment, alternative litigation finance, and, finally, the class action. Indeed, one important takeaway of the article is that courts are empowered to regulate claims consistent with substantive goals and institutional constraints.

Glover’s article makes her point in a very persuasive and fun way. Because it is theoretical, it differs somewhat from the articles that I have liked lots in the past. But it does share with those prior articles a sensitivity to how procedure works on the ground. Glover does not talk about theory for theory’s sake, but really looks at the practical implications of theory, bringing such abstractions down to earth. For that reason, Glover makes a significant contribution to the literature.

Cite as: Sergio J. Campos, Do Claims About Claims to Claims Matter?, JOTWELL (March 23, 2017) (reviewing J. Maria Glover, A Regulatory Theory of Legal Claims, 70 Vand. L. Rev. 221 (2017)), https://courtslaw.jotwell.com/do-claims-about-claims-to-claims-matter/.

The Impact of Wal-Mart v. Dukes on Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More a Wave Than a Tsunami

Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes, 48 Akron L. Rev. 803 (2015).

The Supreme Court’s decision in Wal-Mart v. Dukes set off a groundswell of concern among many scholars, lawyers, and legal commentators about its potential impact on employees’ capacity to collectively pursue relief, particularly for systemic intentional discrimination claims. As one of those concerned parties, I enjoyed reading the five-year retrospective by Michael Selmi and Sylvia Tsakos, which seems to suggest that Wal-Mart’s impact on such claims has been more of a wave than a tsunami. Selmi and Tsakos recognize the ways in which the Court’s ruling has taken its toll, but they highlight how much Wal-Mart’s impact is a matter of degree rather than kind. Pre-Wal-Mart, the class action landscape was characterized by skepticism toward nationwide class actions, greater merits-focused class certification, and jurisdiction-dependent class treatment. Post-Wal-Mart, those trends have expanded to the detriment of civil rights claims. While this expansion is normatively problematic, this article makes an important contribution to the literature by situating Wal-Mart historically and putting it into a broader perspective. In addition, Selmi and Tsakos identify a forward trend of class certification jurisprudence involving certain kinds of subjective employment practices, which have been found to satisfy Rule 23’s commonality requirement even under current class action jurisprudence.

The authors’ sobering observation that employment discrimination class actions alleging subjective practices have been struggling, combined with their positive observation that some of these class actions remain viable post-Wal-Mart, lead the authors to conclude that Wal-Mart’s effect thus far has been modest.

As an initial matter, the article establishes that Wal-Mart has changed the litigation landscape to the detriment of employees. For example, fewer plaintiffs have filed employment discrimination class actions, and those that have must incur substantial additional costs if they seek damages under Rule 23(b)(3). Moreover, emboldened by the ruling, more defendants are seeking to dismiss employment cases even before the class certification determination. (P. 804.)

The authors make no bones about their impression that the Supreme Court – and certainly its “conservative wing” – is hostile to class litigation in general and in particular to the kind of class action pursued in the Wal-Mart case. This hostility stems from the common-yet-unsupported perception that defendants are unfairly subjected to immense pressure to settle given the high costs and potential widespread liability class actions present. They argue that this overlooks the absence of evidence of potential blackmail, the availability of alternative tools for curbing settlement pressure, and the reality that plaintiffs face significant costs and risks too.

Initially, systemic challenges to facially discriminatory employment policies seeking injunctive relief made class certification straightforward. But as workers started to challenge subjective employment practices and to seek significant monetary damages (and a jury trial) for intentional discrimination pursuant to the Civil Rights Act of 1991, their capacity to unite under the umbrella of one lawsuit waned. Federal appellate courts split over the propriety of class certification under Rule 23(b)(2) — the traditional injunctive class action for civil rights cases. Some courts continued to allow employees to litigate collectively, while others rejected such routine certifications where employees sought monetary relief. This schism and differing judicial philosophies about aggregation naturally led to forum shopping.

The article contends that barriers to aggregation that existed prior to Wal-Mart, not surprisingly, have bled into the post-Wal-Mart era. This means that Wal-Mart is like its predecessors — a product of judicial hostility toward aggregation of employment claims that dates back at least a couple of decades. At the same time, the particular facts of Wal-Mart are distinct from typical employment class actions. The plaintiffs attempted to sew together the claims of 1.5 million women nationwide in a single suit on the ground that decentralized excessive subjective personnel decision-making was a policy that harmed women; this was a bridge too far for the Court. Although plaintiffs’ liability theory did not cover new ground, the size and scope of the case did. Consequently, no amount or type of evidence could satisfy the Wal-Mart majority that there existed a policy of systemic gender discrimination here.

Selmi and Tsakos pivot from establishing the fertile ground from which Wal-Mart swelled to how employment discrimination class actions have since fared. They conclude that for cases not alleging the identical theory pursued in Wal-Mart, there has not been a “death knell” of employment discrimination class actions.1 Given Wal-Mart’s unique facts, courts have been able to distinguish the case, thereby permitting certification or denying decertification.2 Some noteworthy appellate cases have breathed new life into the possibility of class certification for discriminatory subjective decision-making in the workplace. For example, in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., Judge Posner distinguished Wal-Mart and reversed denial of class certification where low-level managers exercised discretion but did so pursuant to two companywide policies that had an adverse disparate impact on African-American brokers. Another example is Scott v. Family Dollar Stores, Inc., where the court clearly delineated Wal-Mart’s strictures and permitted certification of a class action alleging discretionary employment practices. The Fourth Circuit concluded that commonality was satisfied where there existed a uniform corporate policy and higher-level managers were the ones making discretionary decisions that had a disparate impact on female workers or that revealed a pattern or practice of intentional gender discrimination. These appellate decisions demonstrate that the ambit of Wal-Mart’s reach may not be as wide as anticipated.

In sum, Selmi and Tsakos do a great job of making sense of a complex area of law by putting Wal-Mart into a broader context for analysis. Granted, their conclusion that Wal-Mart has not greatly diminished class certification for employment discrimination cases because it was already difficult to begin with is not good news for plaintiffs. This observation speaks only to Wal-Mart’s relative impact, and the certification bar was already high before the Wal-Mart decision. More encouraging is the jurisprudence emanating from lower courts that define the contours of Wal-Mart and forecast potentially viable employment discrimination class actions.

Selmi and Tsakos have made a compelling case for why Wal-Mart has not marked the “death knell” of collective actions challenging workplace discrimination. This is crucial. It also leaves a question: Is this good enough? Teeing up this question is an equally important contribution of this article. I look forward to our answering this next fundamental question in the future.

  1. The authors, however, rightly struggle to explain why plaintiffs’ subsequent smaller regional versions of the parent Wal-Mart case have not been certified if size explains the Supreme Court’s rejection of a national class action. []
  2. The authors note, however, that on the district court level, some courts have seemed to reflexively apply Wal-Mart to deny class certification, even in cases where the facts could not be more distinct from those in Wal-Mart. []
Cite as: Suzette M. Malveaux, The Impact of Wal-Mart v. Dukes on Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More a Wave Than a Tsunami, JOTWELL (March 7, 2017) (reviewing Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes, 48 Akron L. Rev. 803 (2015)), https://courtslaw.jotwell.com/the-impact-of-wal-mart-v-dukes-on-employment-discrimination-class-actions-five-years-out-a-forecast-that-suggests-more-a-wave-than-a-tsunami/.

(Almost) Everything You Wanted to Know About Class Actions

With the advent of the new administration, aggregate litigation is under attack again. As of this writing new legislation aimed at limiting class actions has been introduced in Congress. This is the perfect time for Congresspersons and their aids to read John C. Coffee’s book, Entrepreneurial Litigation: Its Rise, Fall, and Future – both friends and enemies of the class action will benefit from reading this fair-minded and nuanced analysis.

Before delving into the reason for this recommendation, a bit of background. In the scholarly literature on class actions there have been two big ideas. The first was that class actions can have a deterrent effect on large institutions by permitting the enforcement of laws when many people suffer a wrong too small to merit bringing a suit. It is easy to forget that this is in large part what class actions are about. The earliest statement of this idea that I know of was in 1941 in a law review article by Harry Kalven, Jr. and Maurice Rosenfeld. The second big idea was the observation that the class action separates ownership of claims from control of claims, much like the corporate form separates ownership from control of the firm, giving rise to agency costs. John C. Coffee, Jr. has long championed this formulation, first presenting it in 1986.

All subsequent work on class actions has built on, refined, and criticized these two big ideas. A prominent and important strand of scholarship on class actions, for example, demonstrates that given the diagnosis of agency costs, class actions must be thought of as posing problems of governance. Another similarly important strand looks at class actions as problems akin to those solved by the administrative state.

Coffee has now published the sum of his work on class actions in this new book, covering almost everything you wanted to know about class actions in clearly written and engaging prose, from the history of attorney’s fees to the European experiment with the device. (I say almost because there is one omission in the book—an omission I will get to at the end of this review.) Coffee promises a “warts and all” look at the class action and he delivers on this promise. The book is critical of plaintiffs’ attorneys, defense attorneys, and judges in class actions; it sees the strengths, weaknesses, and incentives of each of these actors with a clear eye.

This is a minor miracle. Even though they constitute only one percent of the federal docket, and probably less of the state court docket after the Class Action Fairness Act, class actions are a perennial object of attack. They are what political scientists call a “condensation symbol” – a rallying or focal point for our collective anxieties about morality, politics, and the economy. Perhaps for this reason, or perhaps reflecting the general poverty of discourse on difficult policy issues, the debate over class actions has largely generated more heat than light. Either class actions are “blackmailing” corporations into settling meritless cases or they are the only mechanism for the little guy to assert his rights. Coffee presents a balanced account of both the costs and benefits of collective litigation, rightly focusing on the main issue of lawyer incentives to bring and maintain suits. He recognizes that class-action attorneys both realize the public goals of deterrence and benefit from litigation: “No simple epithet – private attorney general or bounty hunter – adequately captures the plaintiffs’ attorneys’ role in high stakes litigation.” He writes, “In truth, the plaintiffs’ attorney does not simply supplement public enforcement but extends and drives the law’s development, sometimes pushing it in directions public enforcers would not have gone.”

The book begins with a history of entrepreneurial lawyering. The insight here is that fee structures drive the structure of the legal profession—had we regulated attorney’s fees, for example, we might have a very different legal system in the United States. As it was, early on the states rejected English limitations on fees and accepted contingency fees and other innovations that encouraged lawyers to find clients and allowed clients who might not be able to afford representation otherwise to hire lawyers. That was the birth of entrepreneurial litigation and it occurred not in 1966 with the promulgation of Federal Rule of Civil Procedure 23, but in the 1850s with the adoption of contingency fees. You might say it is an American tradition. As Coffee puts it, refining his original agency thesis, “the plaintiff’s attorney in large class actions [is] less an agent than a risk-taking entrepreneur, with the class members serving as largely passive partners.”

Especially fascinating is Coffee’s history of the derivative suit. Here he tells stories that I have not seen told elsewhere, such as that of Clarence Venner, a non-lawyer who was a key player in orchestrating campaigns against public corporations as a plaintiff in the early twentieth century, and Abraham Pomerantz, a lawyer who revolutionized plaintiff’s side corporate litigation after the Great Depression. This historical narrative provides a new view of the class action, not as an inflection point in the history of American law between the New Deal regime founded on administrative expertise to a mixed regime that increasingly relied on private enforcement, but instead part of a longer history of individual activism in the courts dating back to Jacksonian populism.

Coffee addresses four types of class actions: derivative suits, securities suits, merger-and-acquisition class actions, and mass-tort class actions. When I first read the book, I thought giving mass-tort class actions a chapter was a mistake, because they were defunct. But reports of the death of the mass-tort settlement class action have been greatly exaggerated, as the NFL Concussion and Deepwater Horizon cases demonstrate. His analysis of each of these areas of the law focuses on incentives – those of the defendant, plaintiff, and, importantly, judges. These include the defendant’s side desire for global peace, the plaintiff’s attorney’s incentives created by the structure of fee awards, and judges’ incentives to avoid protracted litigation or a flood of cases. Coffee describes a dynamic of one step forward and a half step back – a cycle in which attorneys succeed, overreach, and face a counter-reaction.

After reviewing the problems in class actions, Coffee sets the stage for considering reforms. Overall, the problems he focuses on can be put into three categories: (1) structural problems, such as overlapping multiple jurisdictions permitting duplicative litigation; (2) incentive problems, such as the size of the lawyer’s fee in class actions, which can lead to overzealous prosecution of class actions, and the creation of limits such as the “loser pays” rule adopted by some corporations in their bylaws, which can lead to under-prosecution; and (3) accountability problems, including the fact that private attorneys general are not democratically accountable as public attorneys general are. These observations tie with common themes in discussions of litigation and politics in the U.S. more generally: the tension between the establishment and the people, between centralization and decentralized decision-making, and between regulation and deregulation. In the final chapter, Coffee proposes greater public/private partnerships in the prosecution of civil cases – not giving public agencies veto power, but perhaps adding some greater regulation of private lawyers than merely the existence of a substantive legal regime provides.

It is not surprising that Coffee describes class actions the way that he does, as an entrepreneurial enterprise with a long American tradition, given that he is a corporate law scholar in his other life. His description is convincing, novel, and important to current policy debates that present entrepreneurial litigation as an anomaly in our history. He focuses on sectors that are important not only financially but also in American political life. As Lizbeth Cohen demonstrated convincingly in The Consumer’s Republic: The Politics of Mass Consumption in Postwar America (2003), after the Second World War the country took a turn from understanding citizenship as a political act to understanding it as an economic one: the best thing we can do for our country is buy more.

Bringing the insights of corporate law to class action litigation is Coffee’s strength, but also a weakness, because it ignores how the class action, and the controversy surrounding it, extends beyond corporate litigation. Derrick A. Bell, Jr. originated the analysis of agency costs and of the lawyer having his own agenda (the core of the idea of the “entrepreneur”) in his 1976 article Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation. Thurgood Marshall and the NAACP Legal Defense Fund, about whom Bell wrote, might be described as ideological entrepreneurs. And like the rest of the class action regime Coffee describes so well, civil rights class actions are under threat. Here a public/private partnership will cure little, as the whole point of many civil rights actions is to sue the government itself on behalf of those with limited political power: those denied the right to vote, the homeless, foster children, and prisoners, to name but a few groups. (The government ought to have a role in enforcing civil rights, but an independent bar is a necessary watchdog.) It is important to remember that overreaching limitations on civil rights class actions are at least as dangerous to civil society as too harsh limits on consumer and corporate suits.

Coffee, who was for many years a colleague of the civil rights pioneer Jack Greenberg, is no doubt aware of this omission and it does not diminish the importance of this book.  His insights into the costs and benefits of the class action device will continue to be crucial for anyone thinking about the class action: legislators, judges, lawyers, students, and academics.

Cite as: Alexandra D. Lahav, (Almost) Everything You Wanted to Know About Class Actions, JOTWELL (February 21, 2017) (reviewing John C. Coffee, Jr., Entrepreneurial Litigation: Its Rise, Fall, and Future (2015)), https://courtslaw.jotwell.com/almost-everything-you-wanted-to-know-about-class-actions/.

Eight Is Enough

In February 2016, shortly after the death of Justice Antonin Scalia, progressives, including progressive law professors, salivated at the prospects for the Supreme Court. President Barack Obama would fill a vacancy (the third of his presidency and the same number Reagan had appointed), shifting a 5-4 conservative Court to a 5-4 liberal Court. And with the expected election of Hillary Clinton to potentially replace three Justices who were 78-years-old or older, a 6-3 liberal Court—unseen since the 1962-68 heyday of the Warren Court—seemed possible. Visions of vigorous liberal constitutionalism, especially on “Culture War” issues, danced in the heads of constitutional scholars and advocates.

It was not to be, of course. Those dreams died in stages, with first the success of Senate Republicans’ 300-day inaction on President Obama’s nomination of Merrick Garland, then Donald Trump’s unexpected election in November 2016, then his January 2017 nomination of Tenth Circuit Judge Neil Gorsuch to fill the vacancy.

Although a self-described progressive, Eric Segall spent this interregnum attempting to steer the conversation and the political process in a different direction. In Eight Justices Are Enough (a paper I read and commented on in draft), the culmination of a series of op-eds, blog posts, and talks, Segall argues that Congress should permanently establish the status quo since Scalia’s death that may continue for the duration of the current Term: An eight-Justice Court, evenly divided between Democratic and Republican appointees. Each seat would be designated (or at least understood) as “belonging” to that party and to be filled by a nominee of that same party, regardless of the appointing President. In essence, Segall argues, the Supreme Court should be staffed the same way as the Federal Election Commission or the Court of Appeals for the Armed Forces (a non-Article III court).

Segall’s proposal seizes on an unprecedented political moment: An even number of Justices with an even ideological divide adhering to the party affiliations of their appointing Presidents and, presumably, of the Justices. That last part is important, because previous sharply divided Courts have not followed partisan lines. The four-Justice “liberal” wing from 1994-2009 consisted of two Republican appointees. So did the liberal majorities on the Warren Court. One of the “Four Horsemen” voting to declare New Deal legislation invalid was a Democratic appointee, while three of the regular dissenters were appointed by Republicans Presidents.

This proposal also reflects Segall’s scholarly approach to the Supreme Court, which he has long labeled a political rather than judicial institution in his own writing and his work with Judge Richard Posner. If a Justice’s politics dominates how she decides cases, Segall suggests, it is better to bring party affiliations into the open and make them an explicit part of the Court’s structure.

The change could be implemented deceptively easily and immediately. Congress determines the size of the Court and can reduce the number of seats from nine to eight by ordinary legislation; Article III does not command a minimum or maximum size for the Court, nor that there be an odd number of Justices. The trickier piece is ensuring same-party nominees. One way is through legislation, like that establishing the FEC, providing that “no more than four members of the Court may be affiliated with any particular party.” Although Segall does not mention it, this would not be without constitutional uncertainty, going to whether Congress can legislate limits on eligibility for a seat on the Court. Article III famously does not establish eligibility qualifications or limitations for a federal judge, not even that she be a lawyer. Alternatively, the Senate could enact an internal rule that it may confirm only a nominee from the same party as the prior holder of the seat and must refuse to confirm a nominee not of the same party, ensuring that there are never more than four Justices from one party. Segall does allow for possible confirmation of an independent, or someone who refuses to disclose party affiliation, by a supermajority.

Segall does not require the President to nominate a member of a particular party, which would trigger sticky constitutional questions about the scope of the President’s Article II appointment powers and congressional power to limit presidential prerogatives. But the President would know that if he nominates a Republican to replace Justice Ginsburg (or if President Clinton would have nominated a Democrat to replace Justice Kennedy), the Senate would not confirm.

Segall identifies three broad benefits in his proposal. First, it ensures at least a minimum of bipartisan support for any significant constitutional decision, since at least one Justice from the other party is necessary to create a majority. While an excess of constitutional decisions from a closely divided Court can be troubling, the problems of perception are exacerbated when the divide tracks partisan lines. Instead, Justices will work harder to avoid ties and to achieve some bipartisan agreement, perhaps by rendering narrower (“minimalist,” in the parlance) decisions. Second, the proposal removes incentives for partisan gamesmanship in timing retirements. A Democratic Justice has no incentive to time her retirement for when a Democrat is in the White House (or to hold on until a Democrat returns to the White House) if her successor on the Court will be a Democrat, regardless of the appointing President. Third, Segall rebuts arguments that the proposal would be detrimental to the uniformity of federal law. Because only a small portion of the Court’s decisions are 5-4, it is likely the eight-Justice Court would be evenly divided and unable to decide only on a similarly small number of cases. More importantly, having an evenly divided Court devolves decisionmaking power to the lower courts, which include a larger number of judges, who are politically, educationally, socially, geographically, and experientially more diverse.

Segall’s proposal creates some downstream effects that may prevent it from achieving its purposes. It theoretically could produce more moderate nominees, as a Republican President will appoint the most moderate (i.e., least liberal) Democrat he can find for a Democratic seat (and vice versa, for a Democratic President with a Republican seat). Segall regards this as a long-term benefit, a way to reduce the role of partisanship in the Court’s decsionmaking by getting less-partisan Justices. But that also means Justices will not entirely lose the incentive for gamesmanship in timing their retirements. Justice Ginsburg still may try to hold on to allow a Democratic President to replace her with a similarly liberal Democrat, rather than allowing a Republican President to replace her with a moderate Democrat. The difference is merely one of degree. Segall addresses this concern by requiring that any nominee be approved by a majority of that party’s members on the Senate Judiciary Committee. In theory, this forces a Democratic President to appoint, and Senate Democrats to vote to confirm, someone who is “Republican enough” to satisfy the Senate GOP caucus. That, of course, may undermine the goal of appointing moderate Justices.

The proposal also creates some perverse incentives for actors to avoid or delay acting to fill a vacancy for a lengthy period. If the new status quo is an evenly divided eight-person Court, a vacancy necessarily produces a seven-person Court with a 4-3 partisan advantage for one side. And partisan actors on that side might prefer to keep that edge for some period of time. Thus, President Trump might leave Justice Ginsburg’s seat unfilled to maintain a 4-3 Republican Court, rather than appoint a new (even moderate) Democrat. Or he can strip the force from the Democratic veto on the Senate Judiciary Committee—if they do not go along with his conservative-Democrat nominee, he is happy to leave the seat vacant. Or a Democratic Senate majority might refuse to confirm a Republican nominee to fill Justice Kennedy’s seat, leaving a 4-3 Democratic Court. Or a Democratic Senate minority might filibuster Kennedy’s replacement, producing the same result (or forcing Republicans to eliminate the filibuster). The Justices themselves might prevent this manipulation by conditioning their resignations on confirmation of a replacement. But that option disappears with an unexpected vacancy created by death, illness, or incapacity.

Finally, the proposal places downward political pressure on lower-court appointments. These have become nearly as politicized as Supreme Court appointments, as demonstrated by Republicans’ deliberate strategy to leave more than 100 unfilled vacancies for President Trump. Segall’s plan could exacerbate the problem. If SCOTUS’s inability to get a majority empowers lower courts to resolve more national issues within their geographic regions, each political party wants to increase the likelihood of favorable decisions being affirmed by that evenly divided Court. Both parties thus must maintain and strengthen majorities on lower courts, as appointment obstruction and gamesmanship trickle down to the lower courts. The new system also may prompt those lower-court judges to flex their powers, as by issuing and affirming universal (or nationwide) injunctions, binding the federal government to the decision of a single local court and essentially creating nationwide law, never to be reviewed or resolved by SCOTUS. Whether these are features or bugs, and whether as bugs they outweigh the merits of Segall’s proposal, is a matter for political debate.

Segall’s is only the newest among numerous proposals to alter the makeup and selection of the Supreme Court, both to fix the broken confirmation process and to depoliticize the Court as an institution (as perceived, if not in reality). The Paul Carrington Proposal would establish de facto eighteen-year term limits by statutorily providing for regular biennial appointments to the Court, with cases heard by the nine junior-most Justices. Others have proposed constitutional amendments to eliminate life tenure in favor of term limits. Others propose eliminating permanent Justices, staffing the Supreme Court with randomly selected rotating judges assigned from lower courts. Segall’s proposal has the benefit of simplicity in enactment—it involves small sub-constitutional changes, codifies the Court’s familiar status quo from the past year, and does not alter the terms or conditions of any sitting Justice’s appointment. It also is the most honest—reappropriating the partisanship that Segall argues exists in the Court and incorporating it into formal institutional structures.

The political reality, of course, is that none of these proposals is likely to be enacted. It would require unilateral disarmament by one party at the height of power (in this case, Republicans, who control the Senate and the White House and, but for the filibuster, can put anyone they want on the Court). That power might shift in two or four years will not affect that calculus. And the window for Segall’s plan is especially narrow, tied as it is to the Court’s current partisan moment. If Gorsuch is confirmed and the next vacancy comes via a retiring Justice Breyer, the resulting eight-person Court would not contain an even partisan divide for Congress to codify.

On the other hand, legal scholars must not run from bold ideas simply because other legal institutions are not on board. And Segall’s proposal is unique enough to look attractive should the current appointment stalemate continue. Senate Democrats have murmured about filibustering any Trump nominee, payback for Republicans’ having “stolen” the appointment from President Obama. If Senate Democrats are serious and committed enough to maintain that stance for several years, Senate Republicans may face a choice—either eliminate the filibuster (as Democrats previously did for lower-court appointments) or look for a solution that accepts the stalemate and finds benefits in retaining it.

Cite as: Howard M. Wasserman, Eight Is Enough, JOTWELL (February 3, 2017) (reviewing Eric J. Segall, Eight Justices Are Enough: A Proposal to Improve the United States Supreme Court (2017)), https://courtslaw.jotwell.com/eight-is-enough/.

Infusing Civil Rulemaking with Economic Theory

Paul Stancil, Substantive Equality and Procedural Justice, Iowa L. Rev. (forthcoming), available at SSRN.

For the most part, civil procedure teachers are dedicated doctrinalists. Nothing wrong in that, especially if well done.

Departing from this norm, Paul Stancil’s Substantive Equality and Procedural Justice is a highly ambitious piece that strives to anchor civil procedure and the rulemaking process in a theoretical construct, largely moored in sophisticated economic analysis.

As such, this piece is part of a subset of academic literature that suggests that the field of civil procedure lacks theoretical heft. Since the enactment of the Federal Rules of Civil Procedure more than seventy-five years ago, intellectually inclined academics periodically have called attention to a lack of “theory” undergirding civil procedure. Typically, this is accompanied by a call for rulemakers to infuse the rulemaking process with the author’s proposed theoretical construct. Stancil’s article is part of this genre; as he states, “Civil procedure has been too long without a theory” – a lacuna he intends to remedy.

In essence, Stancil’s article is a criticism of the foundational transsubstantive norm of the Federal Rules of Civil Procedure, that one set of rules should apply to all cases under all substantive law. Simply stated, he points out that the “homogeneous” nature of the civil case that pervaded rulemaking in 1938 has been rendered inequitable by the reality of “heterogeneous” cases on the modern civil docket. Consequently, the prevailing norm of transsubstantive rules and rigid formal equality fails to promote substantive equality. Each new generation of procedural scholars periodically arises to question the prevailing transsubstantive rulemaking norm. This is an old and recurring debate in the procedural arena.

In advancing his thesis, Stancil first anchors his paper in the scholarly work of other critical academics (Matsuda, Delgado, Crenshaw, and West) who have advanced similar theories arguing that formal equality is not the same as substantive equality. Stancil argues that this same critique should be applied to civil procedure. Surveying historical and theoretical accounts of formal and substantive equality derived from Aristotle, he arrives at a working definition of procedural justice to advance his construct. Stancil extensively relies on the recent scholarly contributions of David Marcus and Larry Solum, whose work centers on grand theories of procedural justice and the transsubstantive norm of the federal rules.

Stancil’s article rehearses an historical account of the origins of the transsubstantive rulemaking norm, the substance-procedure dichotomy in civil procedure, and the federal rulemaking process. He further canvasses the reasons why the transsubstantive norm currently works a substantive unfairness and inequality on litigants.

This discussion lays the groundwork for his proposal that federal civil rulemaking ought to be grounded in economic theories of civil litigation. The nub of his argument states:

For committee rulemakers genuinely committed to the creation of a procedurally just system, the most important moving parts are the merits of the parties’ claims and defenses and the intra-economic incentives that influence parties’ litigation behavior apart from the merits. In very general terms, a procedurally just system will maximize the effects of the parties’ merits positions upon the outcome of litigation, and it will minimize the effects of unrelated economic incentives upon the result.

Expanding on his economic theories, Stancil attempts to demonstrate that formal equality, absent sound economic analysis, leads to disastrous results, citing to recent Supreme Court pleading decisions and the newly amended proportionality rules.

Finally, Stancil concludes his article with a series of recommendations, largely directed at the federal rulemaking process and its constituent committees. He urges rulemakers to adopt an Aristotelian concept of the equality/justice relationship, and to pay careful attention to intra-case economic incentives. Perhaps Stancil’s most striking recommendation is a proposal to create a new federal agency to provide independent economic analysis to rulemaking committees as they undertake their rulemaking functions.

As indicated at the outset, Stancil’s article is a highly ambitious work that attempts, along with a small cohort of procedure scholars, to infuse this arena with “theory.” The article canvasses the work of academics engaged in this same conversation (critical scholars in other disciplines, proceduralists, and law-and-economics scholars), and does a yeoman’s job of setting forth historical context and descriptive material about the rulemaking process. Stancil obviously has leveraged his law-and-economics/antitrust background into his thinking about procedural law. And he offers both a theoretical construct for replacing the transsubstantive rulemaking norm and institutional suggestions for concretely implementing his proposals.

Stancil is writing for the small academic audience that places a high value on “theory” pieces, but he seeks to influence the rulemakers as well. This article is to be admired for its ambition and interdisciplinary approach. In a procedural world largely populated by very good doctrinalists – our dominant mode of scholarship – Stancil seeks to set himself apart as a higher-order thinker and is to be commended for his recommendations.

How this piece might be received by actual rulemakers, however, is another question altogether. For those who have attended rules-committee meetings deliberating on pending rule amendments, I can report that Aristotle does not come up. Indeed, the lack of a “theory of civil procedure” does not come up – which is precisely Stancil’s point. Nonetheless, he argues that these deliberations should be infused with theory to mitigate the deleterious consequences of the prevailing transsubstantive rulemaking norm. Better theory (law-and-economics version), in his view, would result in substantive equality.

Ever the realist, I can only suggest that this not going to happen. Given my understanding of how the federal rulemaking process works, proposals to infuse the rulemaking process with law-and-economics theory, or any other high-level theory (let alone create a new independent federal agency to do this) are unlikely to be adopted in practice.

But it is a case worth making, and Stancil makes it well.

Cite as: Linda S. Mullenix, Infusing Civil Rulemaking with Economic Theory, JOTWELL (January 23, 2017) (reviewing Paul Stancil, Substantive Equality and Procedural Justice, Iowa L. Rev. (forthcoming), available at SSRN), https://courtslaw.jotwell.com/infusing-civil-rulemaking-with-economic-theory/.