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The Status of Non-Binding Authority

The field of judicial administration has started to produce an embarrassment of riches. Many of the legal academy’s best young scholars are taking up critical issues related to how courts operate and how judges reach their decisions. Two forthcoming articles (and their authors), which take on the topic of non-binding authority, are perfect exemplars: Maggie Gardner’s Dangerous Citations and Merritt E. McAlister’s Missing Decisions.

As we know, courts cite to binding precedent in their opinions to support a particular point (e.g., the law on X is Y in Z jurisdiction). There are times, however, when courts cite to non-binding precedent, be it a published opinion from a court that cannot bind it or an unpublished opinion that binds no court. And we generally have assumptions about how this process works. First, that courts cite to non-binding authority sparingly and only when truly appropriate (e.g., for a persuasive point that is not well captured elsewhere). Second, that all decisions that a court might cite—including unpublished ones—can easily be accessed and assessed by the public. Gardner and McAlister challenge these assumptions in their respective articles.

Dangerous Citations examines the curious phenomenon of judges citing non-binding authority. In particular, the article looks to instances in which district judges cite work of other district judges, despite the fact that the opinions of their colleagues cannot bind them. While this practice can be harmless or even useful—as Gardner notes, it can promote consistency in the law, for example—it can also be quite harmful.

Specifically, Gardner divides what she terms “dangerous citations” into two categories: those that are poorly conceived and those that are poorly implemented. Poorly conceived citations are ones in which the non-binding authority being leaned upon simply cannot be authoritative under the circumstances. A classic example is a cite to another case to establish facts (outside of the preclusion context)—courts seem to do this more when asked to fill in factors of a cumbersome multi-factor test. Poorly implemented citations, by contrast, rely upon authority that is not quite apt. For example, a court looks to a sibling court for guidance on a subject and imports a test that does not fit the context at hand.

What are the problems with poorly conceived and poorly implemented citations? First and foremost, they run against our understanding of how authority is meant to operate—it undermines the rule of law if courts cite cases for propositions that they cannot support. And second, such actions can inadvertently introduce errors into decisions, thereby shifting the path of the law in detrimental ways. For example, if a court “borrows” a test from one context and (mis)uses it in another, the law will be the worse for it. These are important concerns to be documenting and assessing, and some may carry into the use of citations to binding authority more generally. They certainly give us pause as we pick up and read the next opinion . . .

Missing Decisions takes on a separate problem of non-binding authority—whether such opinions are available to pick up and read in the first place. One of the great debates within judicial administration over the last several decades was about the propriety of unpublished opinions (opinions that are not published in the Federal Reporter). A truce of sorts made such opinions citable, although non-binding, beginning in 2007. And most thought the issue was largely resolved with the advent of the major legal databases such as WestLaw, Lexis, and Bloomberg Law. That is, the designation “unpublished” became less problematic given that the opinion it referred to was easy enough to locate. McAlister calls into question that “given.”

Missing Decisions painstakingly documents how 27% of merits terminations in the twelve-month period ending September 30, 2017 are missing from the major commercial legal databases. To be sure, most of these are likely quite short and light on reason-giving. Still, this discovery is significant to scholars, practitioners, court administrators, and even judges.

How did so many decisions go missing? Not all decisions are released onto court websites—the websites that then populate the big commercial legal databases. This does not mean these decisions are nowhere to be found; they exist on the federal courts docketing database, PACER. But PACER lacks keyword-search functionality, rendering it of little use—in effect, one would have to know that a particular opinion exists to find it. The gap Missing Decisions identifies, therefore, is a substantial one.

The result, McAlister argues, is that we have been operating under a “false sense of transparency.” And what is the problem with that problem? First, our ability to be an effective check on the judiciary is impeded if a sizeable percentage of its decisions is out of sight (even accepting that many of these decisions may be perfunctory). And second, McAlister suggests that many of the missing decisions come from cases involving pro se litigants, criminal appellants, and non-citizens—our most vulnerable litigants. Depriving future litigants of the chance to review similar cases and outcomes may harm their own litigation chances. Moreover—tying back to a concern that Dangerous Citationsraises—the path of the law could be shifted, even if just modestly, in a detrimental way.

What the two articles have in common, beyond adding to our understanding of how judges and courts operate, is that they identify concerning problems and then provide meaningful solutions. For Dangerous Citations, the solutions are a few-fold. First, appellate courts should create less complex legal tests for lower courts—quelling the demand for shortcuts by which judges inappropriately rely on colleague courts. Second, Gardner hopes to change opinion-writing norms, so that judges internalize quality citations over quantity. Awareness of the problem is necessary to accomplish that goal—and Dangerous Citations paves the way. For Missing Decisions, the solution is at the courts’ fingertips. McAlister proposes that the Judicial Conference issue guidance requiring courts to make all decisions (that are unsealed and that are stripped of personally-sensitive information) freely available on court websites. This step is critical in and of itself and will lead to broader collection of decisions by the WestLaws and Lexises of the world.

Ultimately, Gardner’s and McAlister’s works shed necessary light on how we maintain and rely upon non-binding decisions. Their articles challenge our notions of the status quo and should lead to real-world fixes, leaving all of us—including the courts—the better for it.

Marin K. Levy, The Status of Non-Binding Authority, JOTWELL (November 11, 2020) (reviewing Maggie Gardner, Dangerous Citations, Maggie Gardner, Dangerous Citations, 95 N.Y.U. L. Rev. (forthcoming 2020).; Merritt E. McAlister, Missing Decisions, Merritt E. McAlister, Missing Decisions, 169 U. Pa. L. Rev. (forthcoming 2021).),

Assessing the Rise of the Governmental Plaintiff

Seth Davis, The New Public Standing, 71 Stan. L. Rev. 1229 (2019).

Seth Davis’s The New Public Standing canvasses and interrogates ways that state and local governments allege financial injuries to challenge the constitutional validity of federal law. Federal courts are often quite generous in entertaining private litigants’ claims based on economic injuries (as opposed to ideological or “conscience-based” injuries). Across a wide range of domains, states have relied on this generosity to allege creative economic injuries, even when the states’ actual objections to the relevant federal law are based on ideology. In Davis’s view, this kind of “new public standing presents constitutional, prudential, and remedial issues that are distinct from those raised by private standing for the public and by private standing based upon financial injuries.”

Previous scholars have examined ways that state governments allege injuries to their sovereignty or “quasi-sovereignty.” States sometimes invoke the doctrine of parens patriae to allege injuries to the health and welfare of their citizenry; states allege injuries to the geographic reach of their sovereign territories; and states allege injuries to their lawmaking authority. It has been said that states receive “special solicitude” as quasi-sovereigns, permitting them to command the jurisdiction of federal courts under circumstances that private litigants would not.

But Davis’s focus is different—he targets cases in which state and local governments allege economic injuries. By way of example, states challenging President Trump’s potential violations of the Emoluments Clause contended the President’s actions put them at an unfair competitive advantage, given their ownership stake in properties. States challenging President Trump’s seven-country travel ban contended that the ban would affect revenue their public universities would otherwise receive from students who could not enter the United States. And at least one state challenging President Obama’s Deferred Action for Childhood Arrivals (“DACA”) policy argued that to comply with federal and state law, the policy would require the expenditure of funds to provide drivers’ licenses to individuals who would otherwise be ineligible.

To help explain these moments, Davis offers what Richard Fallon calls a “doctrinal Realist” account of this phenomenon. He seeks to “pars[e] … opinions to identify their operative facts against background patterns that could also facilitate predictions of results in future cases.” In Davis’s view, the new public standing will be more durable than previous attempts to open the courthouse doors for litigants with ideological or conscience-based objections to governmental policies. He contrasts the extant phenomenon to the Supreme Court’s expansion of standing for taxpayers in the late 1960’s, from which the Court sharply retreated. The new public standing is distinguishable in its origins and in the scope of its ideological consequences. In contrast to taxpayer-standing doctrine, conservative states were early innovators in making expansive and creative accounts of economic harm. Moreover, so-called “blue states” and “red states” have claimed economic injury against Republican and Democratic policies. As Davis explains, the “new public standing is an important vehicle not only for progressive legal mobilization, but also for conservative legal mobilization—a vehicle that allows state executive officials of any ideology to bring partisan battles over the national public interest before the federal courts.”

At the same time, Davis contends that courts and commentators should be skeptical of states’ claims for a form of highly deferential “special solicitude” with respect to alleged financial injuries. He acknowledges that for states, a “loss of revenue may directly implicate the state’s uniquely public capacities to make and enforce law and to provide government services.” But relaxing standing requirements for states’ economic injuries could result in relatively few limits to enterprising state attorneys general seeking to challenge federal laws they do not like. “Given the interdependence of state governments and the federal government, any number of federal actions will affect a state’s finances to some degree, and, therefore, any number of state attorneys general will be able to point to financial injuries as a basis for suing the federal government.” Davis predicts that courts will rely on doctrines such as third-party standing and rules against manufacturing self-inflicted injuries to tame the new public standing. And he implies that this is a salutary development.

Davis also offers insights into what the new public standing might teach us about broader Article III doctrine. Given that states are relying on purported economic injuries to raise ideological objections, he contends that the rise of new public standing should encourage courts to revisit the distinction between financial and ideological injuries in private standing doctrine. Otherwise, by insisting on “concrete” injuries for private litigants who are less equipped to articulate structurally based financial arguments, public law litigation will be increasingly funneled through (sometimes highly partisan) state attorney generals’ offices.

These insights will undoubtedly prove influential, as Article III courts attempt to braid the power and flexibility that the new public standing gives them with the ever-present need to tailor the role of an unelected federal judiciary to resolving actual cases and controversies. Those who care about the enforcement of public law, and those who care about the proper role of courts in a democratic society, can benefit from Davis’s balanced, nuanced, and realistic analysis.

Cite as: Fred O. Smith, Jr., Assessing the Rise of the Governmental Plaintiff, JOTWELL (October 28, 2020) (reviewing Seth Davis, The New Public Standing, 71 Stan. L. Rev. 1229 (2019)),

#Getyour$$now!: A New Plan for Class Action Notice and Administration

Amanda M. Rose,, __ U. Chi. L. Rev. __ (forthcoming 2020), available at SSRN.

It is easier than ever to notify class members of a proposed settlement and for class members to file claims. So why are participation rates so low in consumer class action settlements? This is one of the most important puzzles in modern complex litigation. With billions of dollars spent on class action litigation, a 9% participation rate in consumer class actions seems a dismal return on that collective investment, even accounting for the deterrent or quasi-punitive functions that a large settlement represents for the defendants. In her new essay, Amanda Rose offers a solution to this and other related problems of class action administration and transparency—have the federal government develop and administer a website, is an intriguing proposal that would centralize and standardize certain administrative aspects of class action litigation and settlement (notice, informational websites, claims processing, and claims distribution) that she identifies as barriers to higher class participation rates as well as to the overall transparency of individual actions and class action litigation. Rose’s key insight is that broader and cheaper notice are insufficient to induce broader class participation, even when the average class recovery is a non-trivial sum. Rather, consumers must absorb the costs of reading and understanding the notice and assuring themselves that it is not fraudulent. A federally sponsored website would leverage Americans’ trust in the federal government. The use of a common government database would further streamline both the notice and claims processes.

Rose acknowledges the advantages of for improving direct and comprehensible notice to consumers. But her essay suggests that consumer distrust in the notice and claims process is the biggest sticking point in improving class participation rates. She observes that direct notice to class members has become much cheaper with the advent of electronic communication; likewise, new technology makes for more efficient and effective identification of potential class members. She rightly observes that something like would reduce the number of mismatched contact information and be a vehicle for proactively creating databases of consumers, their likely matches to class actions, and their best contact information.

While I agree that the consumer distrust argument is important and a compelling reason to give serious consideration to the proposal, Rose underestimates the persistent problems of notice, thus ignoring ways in which could be further developed to refine class action notice practices. Her approach still places too much faith in direct notice. She implies that can fix much of what is broken with our current system of direct notice – that it still fails to identify all potential class members, that contact information may be faulty, that the notices are unclear and difficult to parse, and that consumers who receive and read the notices are hesitant to invest the effort needed to assure themselves of the veracity of the notice. In fact, however, many emails and official hard-copy envelopes are simply discarded or deleted by consumers’ as they try to sort through the daily avalanche of emails and snail mail. An email may remain unopened or perhaps deleted, not only because of distrust but because it does not rise to the top of personal communications triage. And by the next day or week, it is one of many overlooked or forgotten missives. This follows in the long legal tradition of assuming that direct notice is almost always the best form of notice, tantamount to actual notice. But what if this is no longer true? What if other forms of notice, such as notice by publication, are actually superior as a replacement for or augmentation of direct notice?

Rose is skeptical of this argument. She finds proposals for invigorated programs of targeted advertising and database searching “impractical” for most consumer class actions and argues that consumers are more likely to respond to direct notices than advertisements.

But allow me to challenge this conventional wisdom with a recent anecdote.

In the summer of 2019, the parties to the Equifax data breach litigation announced a settlement plan. After a provocatively titled article in Slate declared, “You Have a Moral Obligation to Claim Your $125 from Equifax,” CNBC columnist Dan Mangan wrote “I may have banked up to $125 by filling out this Equifax claim in seconds — what are you waiting for?” Both articles went viral – especially after influential freshman Representative Alexandria Ocasio-Cortez retweeted the CNBC column with the message: “Everyone: go get your check from Equifax! $125 is a nice chunk of change. Get that money and pay off a bill, sock it away, take a day off, treat yourself, whatever you’d like- but cash that check! It takes one minute. Do it here.” Within hours, so many consumers had filed claims that Rep. Ocasio-Cortez hastily added a tweet advising potential class members to opt for the free credit monitoring option instead.

The Equifax story proves that we could be more creative about class action notice than limiting ourselves to improved direct-notice practices and plans. And that the power of Internet amplification of ideas might augment targeted advertising to more efficiently direct the right consumers to relevant class action certification or settlement notices. Rose’s proposal for—with its potential for growth, standardization, but also creativity—would be the perfect place to incubate and collectively execute innovative notice strategies, while continuing to fortify direct-notice practices. The Equifax example also suggests, however indirectly, that Rose is right about harnessing the power of the federal government to shore up confidence in the veracity of settlement notices and communications. Ocasio-Cortez is a popular figure, but at least some of her authority derives from the fact that she is a member of Congress. Her message that the settlement was real and that participation was important convinced millions to take the time to file a claim. It is time to use the transparency that we would gain from to allow the government and commentators to learn from isolated notice successes and turn them into comprehensive rules and programs.

Cite as: Robin J. Effron, #Getyour$$now!: A New Plan for Class Action Notice and Administration, JOTWELL (October 9, 2020) (reviewing Amanda M. Rose,, __ U. Chi. L. Rev. __ (forthcoming 2020), available at SSRN),

Stay (Faraway, So Close!) in Touch with Civil Procedure

The current global pandemic continues to disrupt our lives. But the pandemic has also inspired some pleasant surprises in the legal profession, ranging from humorous ways of engaging with law students to inventive ways of improving access to justice.

I want to highlight a particularly pleasant surprise for civil procedure scholars—the Civil Procedure Unavailability Workshop (the “Workshop”), a virtual workshop organized by Suzanna Sherry and Adam Steinman that has met weekly this summer and will continue monthly in the fall. (Full disclosure—Adam Steinman is the co-editor of the Courts section of JOTWELL, and I presented at the Workshop in early June). A full list of previous and upcoming presentations can be found here.

Unlike a typical law-school workshop, the Workshop does not necessarily focus on a work-in-progress. Instead, each presenter discusses a topic of interest to civil procedure scholars. The topics have covered a wide terrain of civil procedure—e-discovery, anti-SLAPP suits, the Erie doctrine, protective orders, class actions, personal jurisdiction, and even the bar exam, just to name a few recent topics. For the first half of each session one of the moderators asks the presenter two-to-four questions about the topic. These initial questions introduce the topic for nonexperts and show the topic’s relevance to current trends in scholarship and to curricular needs. The second half is a fun free-for-all where participants ask the presenter questions about the topic.

The participants are the best part of the workshop and have shown the promise of technologies like Zoom in fostering scholarly exchange. To provide some context: The typical workshop is conducted in a room at a law school, with the presenter speaking to a small group of approximately 20 physically present participants. The presenter may be from a different institution but almost all of the participants in the audience are affiliated with the law school (or perhaps larger university) hosting the workshop. For obvious reasons, the pandemic’s social-distancing requirements have made this typical set-up impossible. Moreover, the Workshop’s use of Zoom cannot replicate some of the advantages of face-to-face contact, which many have been pointed out.

Nevertheless, Zoom has opened up possibilities that could not be achieved in the typical set-up. For example, Zoom has allowed participants to attend from anywhere in the world, at a scale that would be impossible to replicate at many law schools. As a result, the Workshop has approximately 226 registered participants and typically 75-to-125 active participants for each session. Unlike the audience at a typical law school workshop, the Workshop participants are not all from the same institution. Indeed, although the Workshop is limited to law professors, the moderators have permitted a few nonacademics to participate, which has enhanced the already great discussions. One participant and presenter has been Chief Judge Lee H. Rosenthal of the Southern District of Texas, a former chair of both the Standing Committee on Rules of Practice and Procedure and the Advisory Committee on the Federal Rules of Civil Procedure.

The civil procedure scholarly community is a particularly friendly and generous one, which has made it easy for participants to meaningfully interact with each other without any fear of judgment. Indeed, one unintended feature I have enjoyed is participants, completely unprompted, acknowledging and engaging with the scholarly work of other Workshop participants. I take these exchanges as proof that scholarship does, in fact, get read!

Zoom also allows for different interactions among participants that would be hard to replicate in the typical law school workshop. One successful feature is the “chat” function, which allows participants to type questions or comments for all participants to read and respond to, supplementing points being made by the speaker or the participants. Based on my own observations, the “chat” questions have allowed participants who would normally hesitate to speak at a typical workshop to make their thoughts heard. The moderators have become adept at integrating chat questions into the queue of live questions, resulting in a great mix of questions that could not be easily created in the typical law school workshop. As an added bonus participants can download the “chat” to preserve not only all of the insightful questions asked, but the comments, links, citations, and other ideas that did not require a response from the presenter.

Zoom’s “chat” function also serves an important community-building role. One downside to the typical law school workshop is that it prevents participants from socializing, as attention is focused solely on the presenter. “Chat” does allow participants to send private messages to specific participants, allowing me, for example, to say a quick hello to colleagues I have not interacted with in years. It is the equivalent of passing a note during class, although (I hope) far less rude. In addition, the “Brady Bunch” layout of the speakers and participants makes it easier to see colleagues and feel less alone. Indeed, that names are published under everyone’s talking head makes it easier to follow up with participants after each session, something that can be a bit of a challenge in the real world when name tags are unavailable or illegible.

Finally, I want to point out a small but important feature of the Workshop. The moderators make a point of staying after the “official” end of each session to allow participants to continue the conversation with the presenter. This allows those participants who are particularly interested in the topic to have a more unstructured back-and-forth with the presenter. I have stayed for at least one of these sessions and they have been a lot of fun, mimicking at times a boisterous lunch with a small group of friends.

This pandemic has not created many things I have liked lots, but I have certainly enjoyed the Unavailability Workshop. I hope that it does not end with the pandemic and that it inspires other ways of bringing civil procedure enthusiasts together.

Cite as: Sergio J. Campos, Stay (Faraway, So Close!) in Touch with Civil Procedure, JOTWELL (September 25, 2020) (reviewing The Civil Procedure Unavailability Workshop at,

Unshrouding Our Day-to-Day Courts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No Laughing Matter

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

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

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

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

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

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

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

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

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

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

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

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

The Machinery of Justice

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

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

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

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

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

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

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

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

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

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

Charting the Interactions of Legal Tech and Civil Procedure

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

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

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

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

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

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

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

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

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

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

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

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

Mischief and Snap Removal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Discretion, Division, and the Supreme Court’s Docket

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

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

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

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

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

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

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

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

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

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

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

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