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Adversity and Non-Contentiousness

Article III extends “the judicial Power of the United States” to certain “cases” (defined largely by subject matter) and certain “controversies” (defined largely by parties). But why the different words? Does the distinctive terminology track a difference in legal meaning? Questions along this line seem to come up every time I teach about Article III. Finally, I have a concise but fairly comprehensive answer to offer if asked.

My answer now—and my (justified?) confidence in its correctness—comes from James Pfander and Daniel Birk. Their compact piece, Adverse Interests and Article III: A Reply, restates and defends against a powerful scholarly critic—Ann Woolhandler—an account they first advanced two years ago in Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction.

I must confess to paying insufficient attention to that earlier Pfander/Birk article—a 129-page throwback to the days before leading law reviews colluded to impose word limits. But if I can handle this most recent thirty-pager, so can you. And you should go read it with all deliberate speed. Like the pie-eating competition to which the practice of law is sometimes compared, the reward for consuming this legal scholarship will be more legal scholarship. But unlike excessive pie-eating, consumption of this additional scholarship will provide additional satisfaction instead of indigestion. (It’s all protein, no carbs.) Start with the reply, as some judges do with their briefs. And you will then be motivated and equipped to go back and read not only that earlier Pfander/Birk piece but also Woolhandler’s response, Adverse Interests and Article III, with the attention and care each demands and rewards.

Thanks to Pfander and Birk, my in-class answer to the standard “what’s the difference” question will begin something like this: “Yes, good question. There is a difference between ‘cases’ and ‘controversies.’ ‘Cases’ is a broader category than ‘controversies.’ The category of ‘cases’ includes not only civil suits and criminal prosecutions, but also other judicial proceedings that result in a final determination of a claim of legal right, including the granting of petitions for naturalization and applications for warrants. Unlike ‘cases,’ which can exist even if there is a single party before the court, ‘controversies’ require the presence of an adverse party.”

This answer—or beginning of an answer, really—is certain to raise many additional questions in class as we continue our exploration of the federal judicial power. “What about standing doctrine?” “What about the adverse-party requirement?” “Was Justice Kennedy right to treat the presence of an adverse party in Windsor as simply a prudential matter?” “Are you actually saying Justice Scalia’s Windsor dissent was wrong?” “Will this be on the final?” “Can you repeat that so I can type it exactly?”

With the exception of those last two, these are all excellent questions. And the aid offered in thinking through all of them is a virtue not only of the Pfander and Birk pieces, but also of the responsive article from Ann Woolhandler that makes up the middle of this trio. These scholars cannot all be right about everything each asserts; some of their claims are inconsistent. Helpfully, though, Pfander and Birk begin their reply with an overview of some of the areas of agreement between them and Woolhandler. Here is one big one: even under Woolhandler’s more current-doctrine-compatible “adverse interests” approach, an adverse-party requirement is too demanding a formulation of what Article III inflexibly requires.

If judicially accepted, the Pfander and Birk view would significantly unsettle existing doctrine. If they are right about Article III, then “parties do not need an injury in fact to pursue a claim in federal court” (P. 1092), judicial proceedings can be Article III “cases” even in the absence of adverse parties or adverse interests, and Justice Scalia’s dissent in Windsor “began from an incorrect premise” about the need for an adverse party (P. 1073). It does not necessarily follow that Justice Kennedy was right in Windsor to treat the need for an adverse party as something that Article III assigns to case-by-case judicial discretion. But he was right to reject a hard-and-fast Article III adverse-party requirement.

For all its potential to unsettle existing doctrine, there is something about the Pfander and Birk view that makes it relatively easy to accept. The textual distinction between “cases” and “controversies,” they contend, maps onto a more fundamental distinction between contentious and non-contentious jurisdiction. And non-contentious jurisdiction, they show, has been uncontroversially exercised by judicial tribunals in many other jurisdictions over long swaths of time. Pfander and Birk help us recognize something that has been hiding in plain sight for a really long time—“the judicial Power of the United States” includes the authority to accept “cases” of non-contentious jurisdiction assigned to the federal judiciary by Congress. Further, their distinction between contentious and non-contentious jurisdiction offers a helpful lens through which to re-examine much of what we have taken for granted. Once we see the utility and ubiquity of non-contentious jurisdiction in other legal systems, the ability of Article III courts to exercise non-contentious jurisdiction assigned to them by Congress makes a great deal of practical sense, in addition to clarifying the textual distinction between “cases” and “controversies.”

It is not my intent here, though, to endorse every element of the Pfander and Birk approach, or to adjudicate each disagreement between them and Woolhandler. The former strays beyond my considered judgment from my examination of their arguments; the latter extends outside my ken. My goal, instead, is to encourage new readers to take up all three articles for themselves.

Reading good legal scholarship is good for your soul. And these articles are excellent. Tasty, nutritious, and restorative (with just enough pepper to be interesting), Pfander, Birk, and Woolhandler have served up chicken soup for the Article III soul. More often than I should probably admit on the Internet, the consumption of legal scholarship is a disagreeable and sometimes dreadful chore for me. This perspective doesn’t come through in my JOTWELL contributions, I hope, but that is primarily because the point of this forum is to identify and discuss scholarship that we particularly value. Isn’t it especially off-putting, though, when legal scholars disagree in a disagreeable way? And isn’t that disagreeableness often an indicator for distortion of the views with which a scholar is disagreeing? (One example from personal experience as a student law review editor fifteen years ago is Ronald Dworkin’s “book review” of a Jules Coleman book on legal pragmatism.)

If you, too, try to avoid the annoyance of people who cannot disagree without being disagreeable, you can approach the scholarly interchange among Pfander, Birk, and Woolhandler without apprehension. Perhaps “tonic” is a better metaphor than “chicken soup.” Their tone is just right throughout—reasonable and measured but also clear about areas of agreement and disagreement. And that helps the reader avoid the mental distractions that emerge from unnecessary invective. For anyone who makes a living in this profession of law, it is a true professional pleasure to come across a scholarly legal interchange carried out so clearly and cordially as in this series. That is not to say it is non-contentious. The whole point of the exchange is to contend for one understanding of the federal judicial power over another. But scholarly contention can be personally non-contentious while remaining legally rigorous. And this controversy—through both its what and its how—helps us think through why it is the case that Article III extends the judicial power of the United States to encompass both “cases” and “controversies.”

Cite as: Kevin C. Walsh, Adversity and Non-Contentiousness, JOTWELL (September 22, 2017) (reviewing James E. Pfander & Daniel Birk, Adverse Interests and Article III: A Reply, 111 Nw. U. L. Rev. 1067 (2017) and James E. Pfander & Daniel D. Birk, Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L.J. 1346 (2015)),

The Trouble with Qualified Immunity

William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. (forthcoming 2018), available at SSRN.

Is Qualified Immunity Unlawful? This is the ambitious question that Will Baude tackles in a forthcoming article in the California Law Review. When plaintiffs file damages suits under § 1983 against government officials who violate federal rights acting “under color” of state law, they must overcome the defense of qualified immunity. That doctrine protects government officials from damages claims unless they violate clearly established law that a reasonable person would have known. The Court has emphasized that this is a high standard, protecting all but the “plainly incompetent and those who knowingly violate the law.”

While qualified immunity appears nowhere in § 1983’s text, its lawfulness tends to go unchallenged both in scholarship and in cases. Until now. Baude’s article interrogates the legal justifications for qualified immunity and finds them wanting. Neither text nor history is sufficient to sustain this highly consequential doctrine. He begins with the text, stressing the statute’s language, which purports to hold “[e]very person” liable who violates federal rights while acting under color of state law.

Baude’s article does not end with the seemingly unambiguous language of the statute, however, which would leave it a short article indeed. Instead, he catalogues and rebuts other proffered legal justifications. For example, on the rare occasions that the Court has explained the foundations of the doctrine, it has sometimes either asserted or implied that qualified immunity is a common law doctrine that was implicitly or presumptively incorporated into § 1983 when it was enacted in 1871.

Baude accepts that a common law backdrop can sometimes help us understand the proper scope of a statute. The problem is that the common law backdrop does not support qualified immunity, especially as the doctrine currently operates. In Little v. Barreme, the Supreme Court rejected a broad immunity for civilian government officials who violated the law. And in the decades after § 1983’s passage, courts rejected the notion that state and local officials who violate the Constitution should be immunized from liability. In Myers v. Anderson, the Court held that any claim of such immunity was “fully disposed of … by the very terms of” § 1983.

To be sure, Baude acknowledges that some common law doctrines protected government officials from suit under limited circumstances. Acting in “good faith” sometimes served as a shield to liability. But to the extent that a defendant’s good faith could doom a plaintiff’s suit, this was because bad faith was an element of a specific tort, such as false arrest. “Good faith” was not a broad protection that applied regardless of the underlying alleged violation. What is more, qualified immunity today is an objective standard that applies even when a defendant acts in subjective bad faith. In that way, the qualified immunity defense as it is currently understood outpaces the common law good faith doctrine.

Justice Scalia proposed an additional argument in a dissenting opinion in Crawford-El v. Britton. He contended that § 1983 had been interpreted too broadly, to reach officials who violated state law, because it seemed implausible that a person could violate state law while acting under the color of state law. Qualified immunity provided a remedial correction for this fundamental defect in the Court’s § 1983 jurisprudence. Baude dispatches this argument persuasively, relying in part on the work of scholars such as Steven Winter. “Under color of” is a legal term of art that long has encompassed not only individuals acting with authority, but also those acting with the pretense of authority. Section 1983’s breadth is a matter of congressional choice, so the statute does not need some deep, broad extratextual remedial correction like qualified immunity.

Finally, Baude makes plain that qualified immunity cannot be justified by the rule of lenity, because qualified immunity is much more extensive. Dueling cases from various circuits can help demonstrate that the law is sufficiently unclear to shield a government official from civil liability, while the same division of authority does not provide a basis for lenity in criminal law.

Baude’s piece is, almost self-evidently, a bold and important contribution that emerges at a timely moment. The Court in recent decades has often taken a formalist tone with respect to legal doctrines that outpace statutory and constitutional text. And yet, during the same era, the Court has routinely invoked qualified immunity to protect police officers and other government officials, often reversing lower courts that find the doctrine inapplicable. So what do we make of a doctrine that is not justified by traditional modes of interpretation and that routinely blocks accountability? At least one Justice has acknowledged the need for the Court to confront this question. In a concurring opinion this past term in Ziglar v. Abbasi, Justice Thomas cited to Baude’s manuscript and suggested the Court should reconsider its qualified-immunity jurisprudence in an “appropriate case.” In the absence of new justifications for the doctrine that have not yet emerged, it is time to revisit qualified immunity’s scope, its existence, or both.

Cite as: Fred O. Smith, Jr., The Trouble with Qualified Immunity, JOTWELL (September 14, 2017) (reviewing William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. (forthcoming 2018), available at SSRN),

What Abbasi Should Have Said

It is a common rhetorical trope among far too many federal judges (including Supreme Court Justices) that legal scholarship is of diminishing utility to them and their work, at least in part because scholars have turned their gaze to topics too far removed from those relevant to the deliberations of contemporary jurists. Most famously, Chief Justice Roberts (who does and should know better) echoed this lament at the 2011 Fourth Circuit conference: “Pick up a copy of any law review that you see and the first article is likely to be . . . the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” The Chief Justice’s ill-informed quip may have gotten the most attention, but he is hardly alone.

There is a lot to say about this general claim. In the specific case of the Chief Justice, much of it has already been said by Orin Kerr.

But the juxtaposition of Jim Pfander’s erudite and magisterial new monograph, Constitutional Torts and the War on Terror, and the Supreme Court’s June 19 decision in Ziglar v. Abbasi, suggests a different (and more alarming) possibility: The problem is not that law professors are failing to produce scholarship of utility to contemporary judges; the problem is that the scholarship that is out there just is not getting read. How else to explain both the result and the reasoning in Abbasi—a decision deeply hostile to judge-made damages remedies for constitutional violations by federal officers, and one that is shamelessly indifferent and stunningly oblivious to the rich history and tradition of such remedies that has been well- and long-documented in the academic literature, most powerfully in Pfander’s book.


As Pfander demonstrates, for most of the country’s history, courts and commentators alike unflinchingly embraced the “common-law model of government accountability” (xviii), pursuant to which U.S. officials were routinely subjected to damages liability whenever they invaded the rights of individuals, even foreigners. Whether the liability arose under state common law or the pre-Erie body of federal “general” law, the theory was the same: Judges could—and, indeed, should—fashion remedies to vindicate individual rights, including damages for misconduct that had ceased by the time of the lawsuit. As late as 1963, the Supreme Court was still insisting that “When it comes to suits for damages for abuse of power, federal officials are usually governed by local law.”

Against that backdrop, the Supreme Court’s 1971 decision in Bivens, recognizing that federal judges could imply a damages remedy directly into federal constitutional provisions, was part of a larger shift in patterns of official accountability during the same era—not in favor of increased judicial power, as such, but in favor of federal remedies over state remedies, especially where federal misconduct was at issue. Indeed, there were in 1971 (and remain today) any number of reasons why it makes more sense to treat a case like Bivens as a Fourth Amendment violation, rather than, as the Nixon administration argued, a dispute that could be settled by resort to ordinary state-law trespass principles. Thus, as the second Justice Harlan put it in his concurring opinion in Bivens, once the Court began to prefer federal remedies (including, for example, in suits seeking injunctive relief), allowing judges to imply damages remedies into the Constitution seemed to follow, since “it would be . . . anomalous to conclude that the federal judiciary . . . is powerless to accord a damages remedy to vindicate social policies which, by virtue of their inclusion in the Constitution, are aimed predominantly at restraining the Government as an instrument of the popular will.”

Much of the rest of Pfander’s book unpacks how, since Bivens was decided, we have lost sight of this understanding—and of Congress’s role, in 1974 and 1988, in taking affirmative steps to bolster, if not enshrine, Bivens. And the real proof of this drift, Pfander persuasively demonstrates, is in lower-court decisions arising out of challenges to post-September 11 counterterrorism policies, where courts have allowed an array of debatable (if not dubious) policy judgments to weigh against recognition of a judge-made damages remedy even for egregious violations of clearly established constitutional rights, most notably the torture of terrorism suspects.

What’s more, these decisions would have left victims of constitutional abuses to state law remedies at the time Bivens was decided. But even that limited avenue is no longer an option, thanks to the 1988 Westfall Act, which has been read to convert all scope-of-employment state tort claims against federal officers into FTCA claims against the federal government. All told, then, the book aspires to “provide[] the tools needed for the Supreme Court to rethink its Bivens jurisprudence,” tools that include (1) a proper understanding of the rich history of judge-made remedies for federal official misconduct; (2) a reassessment of which branch is in the best position to consider the significance of deterrence and indemnification in remedies against government officers; and (3) a recalibration of the doctrine to channel considerations better dealt with elsewhere (e.g., qualified immunity and state secrets) into those avenues. “Only the Supreme Court can implement this new model of litigation,” Pfander concludes, but such a model would “harken[] back to the common-law model that the founders of our Constitution borrowed from England,” and would “enable a federal court to follow the ‘plain path of duty’ identified by Justice Story and ‘to administer the law as it finds it.’”


Contrast Pfander’s exhaustive work (both in this monograph and in his vast body of work on related topics) with the sum total of what Justice Kennedy had to say about all of this history and analysis in his opinion for the 4-2 majority in Abbasi:

In 1871, Congress passed a statute that was later codified at Rev. Stat. § 1979, 42 U.S.C. § 1983. It entitles an injured person to money damages if a state official violates his or her constitutional rights. Congress did not create an analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a specific damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal Government.

In 1971, and against this background, this Court decided Bivens.

No wonder, then, that Justice Kennedy thought it such “a significant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation.” As Pfander’s book (and plenty of other scholarship by Pfander and other scholars) shows, it was never understood to be such a significant step until Bivens constitutionalized what had to that point been common-law damages remedies. Justice Kennedy’s response is that damages remedies are especially problematic in national security cases. But his argument to that effect, as I have suggested elsewhere, is normatively incoherent. Instead, as Pfander argues, national security cases are particularly important contexts for robust judicial remedies, especially after the fact.

Even Justice Breyer’s pointed (for him, anyway) dissent, which cites Pfander’s book, misses the forest for the trees—invoking it in support of the proposition that “It is by now well established that federal law provides damages actions at least in similar contexts, where claims of constitutional violation arise. Congress has ratified Bivens actions, plaintiffs frequently bring them, courts accept them, and scholars defend their importance.” (Emphasis added). A cursory perusal of the cited authority—Pfander’s book—shows that the story is so much richer and the Court’s abandonment of that history in Abbasi so much more troubling.

*                                     *                                     *

Pfander’s book is a Thing I Like Lots for several reasons. Its substance is, in my view, unanswerable (although it would certainly be useful to see what a thoroughgoing academic response would look like). Its bottom line about the significance of a robust judicial role in national security cases, in particular, could not be timelier. And the extent to which the Supreme Court just ran roughshod over the rich historical and doctrinal analysis it provides is, I fear, a powerful indictment not of the utility of contemporary legal scholarship, but of the Justices’ interest in taking it seriously. I am often reminded, when thinking about how judges use scholarship, of the Scottish writer Andrew Lang’s quip about those who use statistics the way drunks use lampposts—seeking support rather than illumination. Pfander’s book is, and should have been, intensely illuminating. That a majority of the Supreme Court saw otherwise is, and ought to be, far more vexing to legal scholars than the suggestion that we are all too busy writing about “the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria.”

Cite as: Steve Vladeck, What Abbasi Should Have Said, JOTWELL (August 15, 2017) (reviewing James E. Pfander, Constitutional Torts and the War on Terror (2017)),

Secrets and Lies in the History of US Adjudication

Amalia Kessler’s book, The Invention of American Exceptionalism, is a rich history of American procedural development. The book, which is meticulously researched, sets procedural developments in their political context, and is an excellent example of a social history of law. She describes the relationship between 19th-century procedural developments and struggles over both capitalism and race. She traces English influences on our history, such as the development of equity practice, and French influences, such as the Freedmen Bureau Courts, which were inspired by French conciliation courts. Among other things, Kessler unearths the American equity tradition and with it fights over judicial power versus lawyer (and jury) power, as well as the development of lawyering as we know it today.  There is too much in the book for me to adequately summarize it, so instead I will offer two vignettes from the book, the first conceptual and the second a narrative, both focused on the antebellum history of equity.

The first, conceptual, vignette describes the requirements of historic equity procedure and helps us understand our own practices by making them strange to us. Indeed, one of the best things about reading a historical study such as this is learning to understand our world in new ways by comparing it with a past understood on its own terms. So it is with the story of equity and the judicial search for truth. The modern cliché is that there was never a better test of truth than the cross examination. This idea, Kessler shows, was invented in the first decades of the nineteenth century by lawyers seeking to show their value to clients and to society. In equity practice at that time, a very different view of how to get to the truth prevailed: the truth would be best obtained in secret, without the pressures of the parties bearing down on witnesses to alter their stories.

In its ideal form, equity practice required that the judicial officer (the chancellor or an appointed magistrate) question witnesses in secret. The officer would take notes on the testimony of the witness without the lawyers or parties present. This was the equivalent of what is known today as a deposition. Because it was in secret, the lawyers could not cross examine the witnesses. Indeed, they did not know what the witness told the judicial officer so they could not use that witness’s testimony to prepare other witnesses or their own clients for their deposition. When all the witness testimony was taken and every piece of evidence admitted, the testimony would be published to the lawyers – that is, it would be made public – and no more evidence could be introduced. At that point, lawyers could use the testimony to argue their case. Secrecy was the path to truth-telling.

This is a very different conception of human psychology than that found in the “crucible of trial” formulation so popular today. Instead of getting at the truth under the pressure of that Perry Mason moment when the witness is confronted by her own lies, the truth is obtained by relieving the pressure and allowing the witness room to be honest without attorney intervention or prompting. If the witness could not be influenced during the proceeding by the lawyer, she was more likely to be truthful. If the attorney could question her and prepare her to conform her testimony to that of other witnesses, she was more likely to misrepresent the truth to favor one or the other of the parties. This is similar to the principle that governs the German system today, as I understand it, in which the judge questions the witnesses and preparing a witness for testimony is an ethical violation. Not so in our system, where lawyers conduct depositions outside the judges’ presence and not preparing a witness is malpractice.

What happened to the idea that truth is best obtained in secret, without lawyer involvement? In his masterful history of procedure, How Equity Conquered the Common Law, Steve Subrin argued that the Federal Rules of Civil Procedure largely represent equitable practices rather than those of common law courts. Yet our rules and trial procedures depend on lawyer-led interrogation with no judge present; we cannot even imagine judges questioning witnesses in secret unless the matter concerned national security. How can this be? The answer is partly structural. The equity courts during the period Kessler covers were understaffed and therefore appointed magistrates, rather than permanent commissioners, to interview witnesses. Because the magistrates were not familiar with the case and were sometimes in the pockets of the lawyers, they became increasingly dependent on the questions lawyers submitted in advance of depositions. In fact, they became something more like stenographers than investigators.  Ultimately, driven by the fiscal and structural constraints and by the constant pressure of the bar, equity courts in New York abandoned secrecy and permitted lawyers to attend depositions. The problems and complaints about equity meant that for many years—and especially as his tenure neared its end—Chancellor Kent may have been one of the most hated men in New York. (Kent was one of the most famous jurists of his day and is often praised in procedural histories as the father of equity practice in the United States).

Lawyers, argues Kessler, wanted the opportunity to show off to justify their fees, and the way to do that was to transform litigation into a kind of spectacle, which in turn required lawyers to erode the secrecy that characterized equity practice. Secrecy limited their ability to perform for their client. Lawyers styled themselves as great orators, comparing their role favorably to Cicero, and attempted to reposition themselves as servants of the public good so that they might stave off accusations that they were manipulating legal process to increase their fees. The accusation that “doing well by doing good” is self-serving clap-trap should sound familiar to the modern ear.

One could not reasonably disagree with Kessler’s assessment that manipulation was part of the story of professionalization of the bar that in the mid-1800s. But there is something incomplete about this description of lawyers (then and now). The example that comes to mind is Richard Henry Dana, a Boston lawyer who in the 1840s and 50s represented fugitive slaves and persons tried for attempting to forcibly free them, as well as commercial clients. Dana wrote in his diary that his representation of fugitives brought him support from the Boston community and thus more clients, helping him to build his commercial legal practice. But Dana took a risk standing up to the slave power, which was strong in Boston (where the local mercantile elite benefitted greatly from slavery), and was attacked and severely beaten by a ruffian on the streets of Boston for doing so.

The issue of controlling lawyer behavior is a theme that runs through the book, one that is crucial to the policy questions (past and present) about lawyer-versus-judicial control over proceedings. This is one core aspect of the adversarialism to which Kessler’s title refers. And it brings me to the second vignette, a wonderful story from the courts of equity in late-seventeenth-century England that provides great insight.

A lawyer managed to get his case into the chancery court and this gave him an advantage over his adversary, who was only familiar with common law practices. How so? The lawyer knew the commissioner who had taken the testimony of his witness in the case and obtained (wrongfully) the transcript of that witness’s testimony. Recall that once all the evidence was taken in a case at equity, the judge closed the case by “publishing” the deposition transcripts. This lawyer took it upon himself to publicize the transcript after the first witness (his witness) had testified. He did this by coming to his rival’s office and reading the statement to him out loud. The common-law lawyer took his client immediately to the equity court and asked to provide his client’s side of the story. Unfamiliar with equity practices, he revealed to the commissioner that his opponent had read him the testimony. This was a disaster for his client. The commissioner told him that he would now close the case to further evidence, as the testimony had been publicized.

What does this story teach us? That some gamesmanship is unavoidable in any procedural system, and always has been – at least since the late 1600s. No matter what rules are adopted or protections created, unscrupulous actors will abuse their power, cheat their adversary, and distort the system of which they are a part. Within the judicial system, this is true not only of lawyers, but also of judges and magistrates. A court system, in the end, depends on the people who use it and the people who staff it. The problem, in other words, is not only the system but the participants. Out of the crooked timber of humanity, no straight thing was ever made.

The procedural system plays a crucial role in what people can and cannot get away with, and the norms within that system play a role in what people will and will not do. However well-designed the system, abuses are inevitable.   The philosopher Stewart Hampshire argued that moral conflict is eternal and that one must focus on procedures that allow contestation of moral norms. The court system offers one such set of procedures, but they are always eroding, in need of shoring up, and in danger of being distorted. The procedures themselves are a site of moral conflict. Kessler’s book is important because it reminds us both that these battles have been going on forever and that understanding past fights helps open possibilities for reform in the inevitable future conflicts.

Cite as: Alexandra D. Lahav, Secrets and Lies in the History of US Adjudication, JOTWELL (July 18, 2017) (reviewing Amalia Kessler, The Invention of American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 (2017)),

On Gender Disparity and Dialogue

Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017), available at SSRN.

Jennifer Mika’s essay examining the scarcity of women arguing before the Supreme Court is a valuable contribution to a growing literature tracking gender disparities at all stages of the legal profession. Research has examined disparities in the way men and women experience the law school classroom, interact with professors, obtain clerkships, make partner at private firms, enter academia, gain tenure, and leave the profession altogether. Mika has made several contributions to this area of research.

In her latest work, Mika’s findings are stark. She draws upon two original data sets: one including every attorney who argued before the Supreme Court during the 2015-2016 term; the other including every attorney who has argued more than once in any term since 2010. During the 2015-2016 term, of the 117 people who argued before the Supreme Court, only 20 were women, or 17%. And since 2010, only 15 of 80 advocates who argued more than one case before the Supreme Court, or 19%, were women.

Mika also accumulated revealing data regarding the employers of the men and women who argued before the Court. During the 2015-2016 term, of the women who argued, 35% were from the Office of the Solicitor General, another 35% were employed by other federal government entities (for example, attorneys from various divisions of the Department of Justice) or state governments, and 25% were in private practice. This distribution contrasts sharply with the distribution of men: only 12% were from the Office of the Solicitor General, 16% were employed by federal or state governments, and 67% were from private practice. In other words, women were much less likely than men to argue before the Supreme Court from private practice. Indeed, only four of the 80 repeat advocates since 2010 were from private practice.

From there, Mika suggests possible explanations for the disparities. Here, the essay is admirably restrained: legal scholars often try to point to a single factor as the explanation for the phenomenon they are discussing. Mika, on the other hand, emphasizes that the explanations for the disparity are likely multiple and that her discussion is likely incomplete. Rather than attempting anything like an exhaustive explanation, she focuses on two possible causes.

The first and more persuasive explanation is the paucity of women partners at private law firms. A woman in private practice who argues before the Supreme Court will most likely be a partner, not an associate. And since women are dramatically underrepresented among partners at private law firms, it is statistically less likely that clients who seek representation from the private sector will select a woman advocate rather than a man. Of course, this explanation merely leads to another question: why are there fewer women than men who are partners at law firms? Since many law firms now hire men and women in equal numbers, the disparity at the partner level is due to attrition. A significant literature has contemplated the causes of this attrition, with plausible hypotheses ranging from the “old boys club” atmosphere of some firms, to a lack of female mentorship, to parental leave policies that disadvantage women, to subtle and perhaps subconscious bias against women that creates a negative work environment, to straightforward discrimination because of gender.

Whatever the cause of the dearth of women partners, Mika does not contemplate an interesting and related question. Suppose that the numbers of men and women partners at private law firms were equal. Would the disparity in the number who argue before the Supreme Court disappear as well? One can think of reasons that perhaps it might not. For example, even if women partners are available in equal numbers, biases among private sector clients might lead to a preference for men as Supreme Court advocates. Moreover, the most relevant comparison is arguably not to law firm partners as a whole, but to the subset of law-firm partners running the appellate practice subgroups in large law firms or working at boutique appellate litigate firms. This specialized subset of partners is disproportionately comprised of former Solicitor Generals or Deputy Solicitor Generals, who also tend to be men—indeed, the only female former Solicitor General, Justice Elena Kagan, is for obvious reasons conflicted out of arguing before the Court.

Somewhat less persuasive is Mika’s evidence for a clear causal link between clerking and becoming a Supreme Court advocate. Most Supreme Court advocates have clerked, and of those a not-insignificant subset have clerked on the Supreme Court. Mika observes that—of repeat advocates since 2010—53% of women advocates and 65% of men advocates have clerked on the Supreme Court. She reasons: “[w]hile Supreme Court clerkship experience does not appear to directly impact an advocate’s likelihood of becoming a Supreme Court advocate generally, it does appear to be an important experience for attorneys interested in becoming a frequent Supreme Court advocate and, by extension, a Supreme Court expert.” She further observes that fewer than one-third of Supreme Court clerks have been women in each year since 2010. While the connection among clerking, clerking on the Supreme Court, and becoming an advocate before the Supreme Court is intuitively plausible, the data suggest there is a relationship between the latter two, but that a Supreme Court clerkship is by no means a requirement. Nearly half of women and over a third of men who become repeat advocates before the Court do so without a Supreme Court clerkship. Still, Mika’s framing of the possible connection is appropriately limited, and she notes that future research may illuminate—or eliminate—the possibility of a causal link.

More broadly, Mika explains that her essay “strives to start a dialogue about how the gender gap in Supreme Court advocacy can be closed.” The goal is admirable given that many people are determined not to have conversations about gender disparities in general, and gender disparities within the legal profession in particular.

A decade ago, when I was a third-year law student, I noticed a striking gender disparity in the notes published in the Stanford Law Review each year. As a member of that journal, I sought information from my fellow editors about the number of men and women who submitted notes for publication. I reasoned that a publication disparity that tracked a disparity in the number who submitted notes would suggest one explanation, while a publication disparity greater than the submission disparity would suggest another. But the issue remained unexplored: my fellow editors informed me that providing me with the information I sought would raise “confidentiality concerns.” Of course, that explanation could not be the real explanation: someone had the information about who had submitted notes each year, and all I needed was the total number of men and of women who submitted notes, not their actual names.

Dialogue resistance continues today. Not long ago Brian Leiter published a set of his citation rankings, and I wrote up a blog post in which I considered why most of the most cited academics are men. A senior white male professor vehemently insisted to me on social media that obviously men are cited more than women because men publish more than women. When I responded with some data indicating a disparity in per-paper citations, he dismissed it by saying that men and women were both cited “between eight and sixteen times per paper.” Without picking up my calculator, I was pretty sure that the difference between eight and sixteen was a fairly substantial one—and I was pretty sure my interlocutor knew it—but he was tenured and at the time I was not. So I let it go.

The larger point is simply that we should not let the dialogue go. We should not be afraid of asking hard questions, of collecting data and allowing those data to lead us to the most plausible conclusions. My sense is that many well-credentialed white men are, on some level, afraid of examining gender disparities because they are afraid of what it might say about their own achievements. Investigation might well reveal that their accomplishments are due not only to intelligence, skill, and hard work, but also to social factors ranging from implicit bias to workplace leave policies. Admitting that the playing field might not be entirely level forces us to confront the possibility that at some point, some of us might have gotten things we did not earn purely on merit. That is a hard thing to confront. But a fear of the truth is not a reason to avoid dialogue about gender disparity.

Mika’s paper presents interesting and important data and discusses those data in a thoughtful way. Future investigators would do well to build upon her research. Her work contributes to the gender disparity dialogue, and I liked it a lot.

Cite as: Nancy Leong, On Gender Disparity and Dialogue, JOTWELL (June 16, 2017) (reviewing Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017), available at SSRN),

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 K. 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),

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),

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), (“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)),

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)),

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),