The Keepers of the Federal Courts Canon

Sep 22, 2015 Steve Vladeck1 comment

Steve Vladeck

There are casebooks, and then there’s Hart and Wechsler’s The Federal Courts and the Federal System, the brand-new seventh edition of which arrived this summer. It may seem odd to focus so much attention on the latest edition of a casebook that has been around since before the Brooklyn Dodgers won their only World Series. But this newest iteration by Richard Fallon, John Manning, Daniel Meltzer, and David Shapiro is, for reasons I elaborate upon below, worthy of its own adoration—and should hopefully entice scholars who have long sought other teaching materials to return to the gold standard.

I

As Akhil Amar has explained, the first edition of “Hart and Wechsler,” published in 1953, “succeeded in defining the pedagogic canon of what has come to be one of the most important fields of public law in late twentieth-century America,” i.e., Federal Courts. And whereas most other legal disciplines preceded the casebooks that purported to define them, Hart and Wechsler all but created not just a curriculum for Federal Courts classes, but also a far deeper sense of why such a course was worth teaching—and taking.

In the process, Hart and Wechsler did not just define the Federal Courts canon; it also served as a bible for the then-nascent legal process school and its focus on “how substantive norms governing primary conduct shape, and are in turn shaped by, organizational structure and procedural rules.” Hart and Wechsler thus provoked generations of students and teachers alike to struggle with one of the most important questions in twentieth-century public law: why federal courts? With Brown (and the Warren Court) right around the corner, its timing could not have been better.

But there was a dark side. Modeled in part on Henry Hart’s landmark 1953 Harvard Law Review article that was itself dialectic, the book was wonderful for everything except teaching. It was maddeningly rhetorical, hyper-dense, and included far too much significant material in the footnotes and the notes after cases. It also gave incredibly short shrift to any number of vital doctrines and theories that were in tension with the views of Professors Hart and Wechsler themselves and to landmark Supreme Court decisions (Martin v. Hunter’s Lessee, most famously) that were difficult to reconcile with the book’s broader, state-court-oriented thesis. In the same space, then, Hart and Wechsler both defined the field and made it terribly difficult to teach. In a contemporaneous review of the first edition, Edward Barrett suggested that, “From his first using of the book this reviewer learned how little he really knew about the subject. After the tenth time through the book he expects still to be learning, still to be wondering what the answers are to many of the questions posed by the authors.” Barrett meant it as a compliment; generations of law students reacted somewhat less charitably.

The second and third editions, published (mostly coincidentally) at the close of the Warren and Burger Courts, respectively, brought with them remarkable substantive improvements even as the ground shifted under the Federal Courts terrain. As Amar wrote in his review of the third edition, “It is not easy to be both gracious and incisive, but the editors here pull off this combination with remarkable skill.” But that graciousness and incisiveness came at the expense of teachability. The treatise-like third edition checked in at nearly 1900 dense pages—packed with notes and footnotes to cover virtually every permutation that could arise from the issues covered in the primary cases. Hart and Wechsler had become unparalleled as a desk reference—as Chief Justice Roberts highlighted at his 2003 confirmation hearing to the D.C. Circuit—and unteachable to all but the most sado-masochistic law students. It was thus no surprise that the universe of Federal Courts casebooks began to expand at about the same time—from only a handful to over a dozen.

Perhaps because they were published more regularly (in 1996, 2003, and 2009), and perhaps because of the passing of the torch from Paul Bator and Paul Mishkin to Fallon, Meltzer, and Shapiro, the ensuing three editions paid successively more attention to teaching and teachability. Even as the canon grew to encompass novel legal questions raised by current events such as AEDPA and the government’s response to 9/11, the successive editions slowly both began (1) to shrink; and (2) to replace rhetorical questions with declaratory summations of doctrinal rules. It was progress, but it was slow.

II

Against that backdrop, the seventh edition is a remarkable achievement for what it both does and does not do. As the editors explain in the Preface,

we have worked hard to make this edition as user-friendly and teachable as possible. In a number of places, we have prefaced leading cases with brief introductory notes, to explain to students how cases and materials that they are about to read fit into an emerging historical or doctrinal picture. . . . In addition, users of prior editions will notice that although our Notes continue to probe the most challenging problems that lawyers, judges, and lawmakers confront, we have reduced the number of sentences that end in question marks. Where we think we have guidance to offer, we have more frequently stated our views explicitly. Many questions remain, but few are rhetorical or repetitive.

And lest there be any doubt, the book bears out the editors’ promise. A bevy of new introductory notes helps students (to say nothing of their teachers) connect the dots from one section to the next. The editors also have trimmed still more fat (the book is now down to 1466 pages), even while adding lengthy treatments of new principal cases, such as Stern v. Marshall, and updated notes for old chestnuts, from Erie to Lincoln Mills to Sabbatino.

But what makes the seventh edition’s greatly improved teachability so remarkable is that it has not come at the expense of continuity. Although the book asks fewer rhetorical questions than its predecessor editions, the same fundamental provocation—why federal courts—remains, alongside the same principled effort to challenge the assumptions of readers of any and all political, ideological, and/or philosophical persuasions. In an age in which judicial decisions are increasingly perceived as reflecting partisan, result-oriented reasoning, Hart and Wechsler offers a principled alternative—an enduring effort to suggest that there truly are neutral principles governing much, if not most, of the work of federal judges. One need not accept that view of the federal courts in practice to understand its normative attractiveness.

To be sure, there is still plenty of work to be done. And Meltzer’s untimely passing of on the eve of the seventh edition’s publication only adds to the challenge facing Fallon, Manning, and Shapiro. But perhaps the biggest challenge to the keepers of the Federal Courts canon is the underlying project: As Congress and the Supreme Court continue to constrain the scope of civil remedies available to state and federal prisoners and all others seeking to challenge alleged government misconduct, the question becomes whether Federal Courts as a project might eventually descend into nihilism—and Hart and Wechsler reduced to a work of history. All seven editions provide their own literal and figurative counterweight to that trend. One can only hope that the dramatic improvements to the latest iteration mean that more students and teachers—and, through them, more judges and policymakers—heed their lessons.

A Pragmatic Approach to Interpreting the Federal Rules

Aug 11, 2015 Suzette M. MalveauxAdd a Comment

Suzette M. Malveaux

With seventeen decisions interpreting the Federal Rules of Civil Procedure in the last decade, the Roberts Court has doubled the number of cases decided by its predecessor, the Rehnquist Court, in the same amount of time. This record-breaking streak has given scholars a unique opportunity to examine the contours and direction of the modern civil litigation system. Elizabeth Porter has taken this opportunity to discern the interpretive methodologies used by the Roberts Court when deciding Rules cases. In doing so, she makes a unique contribution not only to the literature on civil process, but also to the study of interpretation, focusing it away from statutes and instead onto the Rules.

At a time when much is at flux in the procedural world, in Pragmatism Rules, Porter discerns two primary competing interpretative methodologies in the Roberts Court’s Rules opinions. On the one hand, the Roberts Court interprets the Rules using the familiar tools of statutory interpretation. This go-to mode, although imperfect, works to provide rational, clear, and predictable outcomes. To the extent that Rules are like statutes, the Court can rely on the familiar markers of text, structure, and purpose when deciding Rules cases. The Court justifies its reliance on this mode by reminding the lower courts and parties that rule changes must come from the rulemaking process, not judicial adjudication.

On the other hand, at times the Roberts Court has taken a more hands-on approach, actively managing the litigation as if it were a trial judge. This “managerial” mode breaks from the rule-statute analogy, allowing the Court to rely on precedent, specific application of the law to the facts, and public policy considerations. In this mode, Advisory Committee Notes give way to equity and the Court leans on common-law judicial power and pragmatism. Porter observes how managerial judging has “trickled up” the food chain, resulting in Wal-Mart’s heightened Rule 23(a)(2) commonality standard, Twombly and Iqbal’s more rigorous plausibility pleading, and Scott v. Harris’s usurpation of lower court and jury power in summary judgment determinations involving video evidence.

Scholars have criticized both interpretive modes. Traditional statutory interpretation has been criticized for being overly textualist, to the detriment of a Rule’s underlying purpose. Managerial interpretation has been criticized as overreaching and potentially abusive of judicial discretion. Porter carefully threads the needle by rejecting and embracing both. She concludes that both interpretive paradigms not only are here to stay, but are the result of tensions that exist in the very fabric of the Rules themselves and the rulemaking process. Although she identifies the importance of pragmatism to the Court—as reflected in the article’s title—she turns out to be a pragmatist, too.

Porter explores three tensions (what she calls “fault lines”) that characterize the Rules and rulemaking process. She takes a deep dive on characterizations often noticed, but not fully explored.

The first tension is structural. Porter puts her finger on a fundamental institutional tension in the Court’s relationship to civil process. The Court is both legislative rule maker and judicial adjudicator. Subject only to rarely-used congressional override, the Court is the architect of the Rules, enjoying veto power over the Standing and Advisory Committees below. Thanks to the Rules Enabling Act, the Court has more skin in the game than it would otherwise. But this makes the Court’s role all the more confusing, as it must now interpret its own creation.

The Court has recently been criticized for altering the Rules by judicial fiat in cases such as Wal-Mart, Twombly & Iqbal, and Scott. Such decisions, Porter contends, exhibit a lack of judicial restraint by the Roberts Court. Porter reminds us that the Court should not legislate from the bench. But does it do that already? Arguably. But as only one part of a seven-step process that includes significant public participation and transparency, the Court’s formal role in rulemaking may not be as robust as imagined.

Scholars have described the Court’s adjudicative power as akin to that of an administrative agency. The Court has both a unique relationship with the Rules and broad and inherent power to interpret texts, no matter what genre. And where the Advisory Committee comes up short (as in failing to amend the Rule 8 pleading standard), the Court is available to step into the breach. Porter ties these two competing perceptions of the Court – “rung on the technocratic ladder” and “adjudicator-in-chief” (P. 32.)—to the Court’s two modes of Rule interpretation, noting the Court’s nimble exploitation of each:

When it wants to declaim interpretive power, the Court interprets the Rules narrowly using traditional statutory interpretation tools, and urging dissatisfied parties to seek recourse through rulemaking. But when it is frustrated with the rulemaking process or otherwise wants to recalibrate litigation norms, the Court toggles seamlessly into the other paradigm—the paradigm of broad, almost unbounded, common law power. (P. 32.)

The second tension is linguistic. The language of the Rules themselves creates a schism in interpretation. The text is deliberately crafted to maximize the Court’s discretion and flexibility to achieve procedural due process. But the text may be so ambiguous—if not downright poetic—that the Court has too much play, thereby undermining a uniform interpretive theory.

Porter anchors her examination of the linguistic tension in Rule 1. Porter explains that the “master Rule” was drafted as “a statement of interpretive methodology” (P. 33.), designed to steer decisions away from procedural formalism and toward resolution on the merits. She bemoans the fact that the Rule seems to have lost its original moorings, and is instead used to sell cost-savings and systemic efficiency, all of which promote managerial Rule interpretation. Undervalued by scholars and courts, Rule 1 has been made more vulnerable to this pitch. Of course the Rule’s text itself (calling for “speedy and inexpensive” determinations) gives license to the managerial interpretive mode and, unsurprisingly, sends mixed messages.

Porter observes that the language of the Rules—with their roots in equity—often wax poetic, inviting rule interpretation that is highly discretionary, factually based, and purpose-driven. This freedom, invited by such poetic text, has been applied not only by the district courts—who are tethered to a factual record and live litigants—but by the Supreme Court, as well. Porter concludes that the Roberts Court has exploited this freedom, enabling it to disrespect the abuse-of-discretion standard of review and rebuke judicial restraint.

The third tension is epistemological. Porter explores how two unresolvable dichotomies mirror, if not create, the Court’s statutory and managerial interpretive modes. One dichotomy is between substance and procedure. When this divide is clean, it supports a statutory interpretation of the Rules. When messy, it invites a managerial interpretation. The other dichotomy is between Rule trans-substantivity and case- and fact-specific Rule application. When the Court uses statutory interpretation, trans-substantivity is clearly valued; but when the Court favors managerial interpretation, fidelity to trans-substantivity wanes.

Porter does a great job teeing up these three tensions or interpretive fault lines and exploring how they might explain, if imperfectly, the conflicting paradigms the Court uses when interpreting the Rules. But Porter doesn’t stop there. In addition to identifying the Court’s contradictory interpretative paradigms and fleshing out the underlying tensions in the Rules and rulemaking process that undergird and concretize such paradigms, she attempts to reconcile these uncomfortable contradictions with a proposal modeled on administrative law.

Because the Rules resemble agency regulations more than statutes, Porter draws from administrative law when crafting a way for the Court to properly employ both statutory and managerial interpretive modes. Porter proposes a framework that supports the Court’s reliance on statutory interpretation and de novo review for cases dealing with pure questions of law and managerial interpretation for cases dealing with the application of Rules to the facts. In the latter, if the Court is faced with a merits question, the Court should remand to the lower court to apply the Court’s new Rule interpretation. This Chevron-type deference scheme strives to preserve Court flexibility while checking overreaching and abuse of power. Porter makes the important and unique observation that the real problem may be that the Roberts Court fails to give proper deference to the lower courts, rather than to the rulemakers.

While recognizing the legitimacy and value of both the statutory and managerial interpretive modes, Porter concludes that this new theoretical framework is necessary to reign in the Roberts Court’s usurpation of the district courts’ managerial discretion. She contends that the Court has not only created new procedural standards through Rule interpretation, but aggressively inserted itself into merits determinations belonging squarely to the courts below. Thus, the problem is not one of Rule interpretation, but of proper deference. Porter contends that a Chevron-inspired framework would promote transparency that discourages merits-based overreach and return the Roberts Court to the minimalist procedural decisions of the Rehnquist Court.

Porter concludes by challenging us to remember the uniqueness of the Rules—as neither statutes nor agency regulations—and the concomitant value of creating an interpretive theory that recognizes both statutory and managerial Rule interpretation. Her proposal starts us down this important and groundbreaking path.

Rationing Constitutional Justice

Jul 8, 2015 Marin K. LevyAdd a Comment

Marin K. Levy

It is easy to forget sometimes that our hallowed federal courts are a collection of organizations and therefore subject to the mundane limitations that organizations face.The judges who compose those organizations must determine how to wade through hundreds of thousands of cases each year—a task that has become more challenging in the past few decades, as the ratio of cases to judges has increased. Judicial administration scholarship has long sought to understand how increases in caseload affect court procedure and practice. More recently, scholars have tried to assess how caseload can impact substantive law.

Against this background, Aziz Huq makes a significant contribution with his forthcoming article, Judicial Independence and the Rationing of Constitutional Remedies.

Huq begins with a stark observation: Article III adjudication is now a scarce good. He notes that in addition to a rising caseload, federal courts must contend with the fact that settled constitutional rules are broken on a daily basis. In particular, Huq argues, the constitutional criminal procedure rules developed by the Warren Court are consistently flouted. This constitutional problem quickly has become an organizational one, as the courts lack the ability to provide relief in all cases challenging violations of these rules, given their current resource constraints. Some rationing of constitutional remedies is an “inevitable” result. The question that follows is how courts have taken up that task.

Huq first argues that the Supreme Court has established a “gatekeeping” rule of fault for individualized constitutional remedies in a range of areas. That is, constitutional litigants must show not only that the Constitution was violated, but that a clear and unambiguously applicable constitutional rule was self-evidently violated. By adopting such a rule in different contexts, the Court has necessarily raised the threshold for success in constitutional litigation, meaning that fewer parties will be able to come to federal court and win relief. Huq does a wonderful job tracing how this litigation-limiting rule applies in a range of contexts, from constitutional torts to exclusion of evidence in criminal prosecutions to habeas corpus. The result is a comprehensive account of how the fault rule has thoroughly permeated, and restricted, constitutional remediation.

Huq next explores the reasons behind the doctrinal expansion of the fault rule. He notes that scholars focusing on the rise of the rule in the past have told a standard causal story in which the ideological interests of the Justices and various historical circumstances play the primary roles. Without disputing the importance of these factors, Huq provides a fuller account by adding a new, hitherto underapperciated factor—what he calls “judicial independence.” That is, the Court has developed doctrines at least partially to further its own institutional interests, notably a desire to decrease the workload of the federal judiciary while simultaneously increasing its prestige. The rise of the fault rule thus should be seen as directly tied to the rise in pressures on the federal courts in the late 1970s and 1980s.

The article makes several important contributions. In addition to providing a comprehensive account of the reach of the fault rule, Huq convincingly suggests a causal link between these doctrinal shifts and judicial self-interest. To be sure, the article cannot definitively prove causation, and Huq is clear on this point—he states that he can only provide circumstantial evidence to support the causal claim. That said, the evidence is strong and it carries a number of implications, whichuq briefly sketches at the close of the article.

Chief among the implications is that Huq’s account may shift our understanding of separation of powers. As he writes, one central component of separation-of-powers theory is that the autonomy of the judiciary is critical for vindicating individual constitutional rights. But if one accepts that the rise of the fault-based rule for limiting the availability of constitutional relief is due, at least in part, to the judiciary exercising its own autonomy to reduce workload pressures, then surely the traditional account should be questioned. Furthermore, read more aggressively, the evidence in Huq’s account suggests that the “successful institutionalization of judicial independence” can even undermine the “project of realizing constitutional rights.”

How judges do and should ration their own attention are questions of central importance. The answers to these questions define who gets what rights recognized and who gets what remedies. There is still a great deal of work to be done in this rich and important area at the intersection of constitutional law, judicial administration, civil and criminal procedure, and remedies. Huq’s article makes substantial contributions in this area and helps to set up other important work to come.

Discovery and Self-Improvement

Jun 9, 2015 Elizabeth G. ThornburgAdd a Comment

Elizabeth G. Thornburg

Opponents of civil litigation portray it as one massive resource suck, focusing on its transaction costs and ignoring its social benefits–not only fair and accurate resolution of disputes, but also the potential for improved compliance with the laws governing civil society. Thus the current round of discovery rule amendments recite the usual claims about the expense of discovery, despite empirical research showing that discovery costs are actually quite modest in most cases. A number of civil procedure academics question the need for those new limits, even considering only costs.

Discovery’s benefits, while harder to measure, come in a number of forms. My last Jotwell essay highlighted the egalitarian information-sharing function of discovery. Steve Burbank’s forthcoming article, Proportionality and the Social Benefits of Discovery: Out of Sight and Out of Mind?, reminds us that lawsuits, including discovery, reflect the deliberate congressional policy choice of enforcing law through private litigation. And now Joanna Schwartz’s excellent article, Introspection Through Litigation, adds to the “benefits” side of the analysis. While Burbank focuses on benefits external to the litigants themselves, Schwartz calls our attention to a litigant-centered phenomenon: self-study, based on information unearthed and marshaled in the process of being sued.

Schwartz’s article locates introspection through litigation at the intersection of two concepts: “organizational introspection” and previously hidden information. The former recognizes that organizations must understand both their strengths and their weaknesses in order to improve their own performance. The latter recognizes that the dispersion of information within organizations means that critical knowledge about weaknesses may elude regulators and even the entity’s own executives. Viewed in this way, litigation can act as a kind of unsolicited audit by a highly motivated researcher: the plaintiff’s lawyer. As Schwartz explains:

Complaints may describe allegations of wrongdoing that employees never reported to their supervisors. During discovery, lawyers may unearth details about the plaintiff’s allegations that other investigators did not have the time or fortitude to seek out. And in complaints, summary judgment briefs, expert reports, pretrial orders, and trial itself, parties marshal the evidence – meaning they interpret, organize, and present information to support their claims – in ways that may prove illuminating. Each of these aspects of civil litigation can draw attention to previously unknown or underappreciated information and insights that organizations can use to identify and correct weaknesses in personnel, training, management, and policies (p. 1058)

Schwartz acknowledges that litigation-generated information can have flaws, and must be understood in light of the circumstances under which is was generated, but nevertheless argues that it is a powerful source of information that may otherwise fall between the cracks.

The most fascinating part of the article lies in Schwartz’s studies of two distinct types of entities – hospitals and police departments – and their very different behavior when it comes to learning from what litigation reveals. Hospitals, it turns out, almost always make some effort to learn systemic lessons from the lawsuits brought against them. Few police departments do so. In seeking to understand why some entities benefit from introspection while others do not, Schwartz posits three conditions needed for fruitful institutional self-analysis: 1) incentives to learn about errors and weaknesses in order to improve performance; 2) awareness that lawsuits can be a source of valuable information about organizational performance; and 3) infrastructure and personnel to gather and analyze lawsuit-generated information. The presence of the first two conditions gives an incentive to establish the third condition.

Applying these three variables, it is easy to see why hospitals and police departments differ so dramatically. Hospitals feel an immediate out-of-pocket cost from lawsuit judgments, while judgments against police more often are paid from general funds. The two types of institutions also tend to have quite different norms regarding the importance of detecting, understanding, and reducing the types of errors that lead to lawsuits. Influenced by a groundbreaking study published in 1999 titled To Err is Human, health care providers have been encouraged to think of systems and policies as both a source of medical risk and a way to increase patient safety. Unlike hospitals, police department are still more likely to see the problems identified by lawsuits as isolated incidents – “bad apples” rather than the results of systems or practices. Hospital risk managers and patient-safety advocates are tasked not only with handling individual cases but also with discerning patterns. Police departments, in contrast, rarely have personnel dedicated to collecting the kind of information that might detect and reduce systemic abuses.

How could we incentivize organizational defendants to act more like hospitals and less like police departments? The most direct tactic would be government regulation requiring the collection and analysis of closed claim (including lawsuit) information. But that would involve significant investment in the administrative state, something politically unlikely to happen in the United States. Perhaps ironically, it may be that private litigation is a motivational key. Substantive law provides a strong incentive for corporations to utilize litigation information introspectively, where it faces liability for failure to take steps to discover and deal with systemic risk. This norm is so well established in the hospital setting that it has created a standard of care. Current civil rights law, on the other hand, discourages police departments from identifying or correcting illegal behavior as part of a recurring practice that would subject them to municipal liability under Monell. There is actually a substantive law disincentive to an introspective search for patterns of individual misconduct.

Even with encouragement from substantive law, however, if procedural rules limit discovery, the material may not be unearthed or marshaled, even through the independence and energy of opposing counsel. Schwartz and others argue that introspection can improve future compliance and decrease future harm. And this is where the impact of discovery on individual litigants broadens to benefit society more generally, as Margo Schlanger has described.

The loss of that potential benefit takes us back to the pending discovery amendments. Two problems are evident. First, it appears that the Advisory Committee and the Supreme Court give little weight to the social value of discovery, particularly the benefit of introspection. Second, this is most prominent in the so-called “proportionality” element in the new definition of discoverability . In addition to being relevant, the new rule would only allow discovery that is:

proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Unless “importance of the issues at stake in the action” is interpreted to include the information’s potential impact on the defendant’s future actions, discovery’s ability to promote introspection will be missing from the scale, and even logically relevant information may be left undiscovered.

I hope that Schwartz’s important article prompts judges doing this inevitably normative balancing to include a richer array of benefits.

A Call for Providence in Class Action Reform

May 12, 2015 Brooke D. Coleman1 comment

Brooke D. Coleman

Square pegs do not generally fit in round holes. When and if they do, the fit is certainly imperfect. Maureen Carroll calls on this adage to explain how courts and lawmakers are muddling the class action. In Class Action Myopia, Carroll argues that institutional actors’ singular focus on the Rule 23(b)(3) class action—what Carroll calls the aggregated-damages class action—negatively affects other types of class actions. Institutional actors fail to assess how perceived problems in the aggregated-damages context might not even exist in other class actions. Relatedly, actors do not anticipate how proposed solutions distinctively, and sometimes negatively, affect different class actions. This myopia, Carroll argues, must give way to providence.

Carroll begins by rehearsing the different types of class actions addressed by Rule 23: logical-indivisibility (Rule 23(b)(1)(A)), limited fund (Rule 23(b)(1)(B)), injunctive civil-rights (Rule 23(b)(2)), and aggregated-damages class actions (Rule 23(b)(3)). She argues that when Rule 23 was amended in 1966, the first three subtypes were designed to reflect common practice by courts and parties who were using some version of aggregate litigation to respond to specific litigation difficulties. For example, where a defendant wished to take water from a stream, it could not do so and only affect one downstream landowner and not others. But litigating disputes between the defendant and various landowners separately might lead to inconsistent judgments. Rule 23(b)(1)(A) thus provides that a class of potential claimants can combine their claims and seek one consistent judgment. Carroll explains how this same historical pedigree applied to limited-fund and injunctive civil-rights class actions—these subtypes were created to deal with existing complexities facing courts and largely codified best practices that had developed in response. Moreover, these subtypes were meant to address unfair outcomes produced by individual litigation in these specific contexts.

Rule 23(b)(3), Carroll argues, was different. It did not respond to existing concerns and did not use some version of aggregate litigation that courts were already employing. Instead, Rule 23(b)(3) was, as Benjamin Kaplan explained, an “innovation.” It was not put forward to address unfair outcomes, as with the other subtypes; it created a new litigation mechanism. By aggregating small damage awards among many plaintiffs against a common defendant, the Rule 23(b)(3) class action motivated claimants and their lawyers to bring new kinds of cases. Carroll reminds us that the 1966 rulemakers were cautious about when and how Rule 23(b)(3) was to be used. Yet decades later, the aggregated-damages class action is the most common class action; according to some studies, it represents a full two-thirds of the class actions filed.

Perhaps because of the sheer number of aggregated-damages class actions, courts and lawmakers have focused exclusively on perceived problems that arise within that subtype. Carroll argues, however, that the common concerns about, and criticisms of, aggregated-damages class actions do not apply to the other subtypes. The standard critiques—undue settlement pressure, attorney overcompensation, and delay and expense—are simply misplaced when considered in the context of other subtypes. For example, assuming the aggregated-damages class action actually creates undue settlement pressures, it does so because the stakes are raised when a claim morphs from an individual one to a class-based one. But, with logically indivisible relief, for example, the remedy is the same whether sought by one plaintiff or one hundred. This means that settlement pressure does not increase by virtue of the class-action device. Similarly, attorney overcompensation cannot apply to the civil-rights injunction subtype because there is no contingency fee involved where no monetary relief is sought.

Because the problems with class actions are not differentiated based on subtype, the solutions are similarly undifferentiated. For instance, the adoption of Rule 23(f), providing for interlocutory review of class certification decisions, has resulted in fewer class certifications. Yet this decrease applies to all subtypes, meaning that all class-action plaintiffs face a greater difficulty in certifying their proposed classes. Carroll argues that this is a sub-optimal result. For example, the civil-rights injunction class action generally requires a pro-bono attorney or other non-profit to take the case. But changes like Rule 23(f) create higher transaction costs for the case, lessening the likelihood that a lower-resourced individual will be able to find a lawyer willing to take on her civil-rights injunction case. To the extent there is value in these cases, the failure to differentiate in class action reform creates negative consequences. We lose the type of class action that society might value most.

After exploring the other undifferentiated ways in which class action reform has developed, an analysis that looks at changes ranging from class action arbitration waivers to Wal-Mart v. Dukes, Carroll discusses several case studies to demonstrate the impact these changes are having on other subtypes. Focusing on the injunctive civil-rights subtype, an area over which she has great expertise and passion, she shows that applying aggregated-damages solutions (and the consequential chilling of class actions) has thwarted attempts to obtain such class actions. Legitimate pursuit of civil-rights ends are delayed, the system is less efficient, and structural reform becomes much harder to achieve.

Carroll ultimately argues that this myopic focus on aggregated-damages class actions must stop. First, when considering reform, institutional actors must consider whether the problem they are addressing is unique to aggregated-damages class actions or whether it is applicable to all class action subtypes. Second, when denying class action treatment in a particular context, actors must consider whether that is the most effective response to the perceived problem, and if so, whether that change will have negative consequences for other class action subtypes. This may be easiest to achieve if the class action subtypes are divided not just by rule designation but also by the requirements that apply to each. Carroll suggests revising Rule 23 to establish differentiated standards for interlocutory appeal, evidentiary burdens, and ascertainability based on subtype. This is just a beginning, Caroll explains, but it is a beginning that at least takes account of important differences.

Carroll adeptly identifies a problem with class action reform, picking up on work such as Suja Thomas’s argument that atypical cases make for ill-conceived reform by the Court and federal civil rulemakers. Thomas discussed cases such as Wal-Mart and Twombly, as well as discovery reform movements by the federal rulemaking body. Fashioning reform when focused on atypical cases is problematic because the reform either does not fit the typical case or, worse, does harm to the typical case. Carroll’s argument elegantly applies this principle to the class action, except her argument is not that there is a typical class action, but that there are four types of class actions that serve four different purposes. By pointing out that institutional actors have taken a myopic view of class actions, Carroll’s work joins the burgeoning call for differentiation in civil litigation reform. Not all cases, let alone all class actions, are the same. Indeed, a square peg response in a world of both square pegs and round holes will not do.

Standing (in) for the Government

Apr 14, 2015 Sergio J. CamposAdd a Comment

Sergio J. Campos

Eugene Diamond, a pediatrician, took it upon himself to protect and uphold the constitutionality of Illinois’s Abortion Law of 1975, which, among other things, imposed criminal liability on doctors who performed certain abortions. Diamond himself was not affected by the law, as he did not perform abortions. Indeed, he wanted to prevent them.

In 1983, when the Northern District of Illinois enjoined enforcement of parts of the law as unconstitutional, the State of Illinois declined to defend the law any further, leaving only Diamond to defend the law on appeal. After losing the appeal, Diamond petitioned the Supreme Court to let him defend the constitutionality of the law, asserting his right to defend as “a doctor, a father, and a protector of the unborn.” But in Diamond v. Charles, the Supreme Court concluded that Diamond had no such right to defend, calling Diamond’s actions “simply an effort to compel the State to enact a code in accord with Diamond’s interests.”

In his excellent article, Standing Doctrine’s State Action Problem, Seth Davis addresses when a party such as Diamond can assert a state’s interest in a lawsuit under Article III of the Constitution, which limits lawsuits to “Cases” or “Controversies” between parties who meet requirements such as standing, ripeness and lack of mootness. The question of who can assert the state’s interests arose again recently in Hollingsworth v. Perry, which involved an amendment to the California Constitution, voted on by citizens of California directly through the state’s referendum system, banning same-sex marriage. As in Diamond, the proponents of the amendment sought to defend its constitutionality on appeal when the State of California declined to do so. The Supreme Court concluded that the proponents lacked standing. Relying upon principles of agency, the Court concluded that the proponents cannot stand in for the state because the state could not exercise control over the proponents’ actions. In dissent, Justice Kennedy noted the irony of insisting on state control of the proponents when the whole point of the California referendum system is to allow citizens to bypass state control of the legislative process and to propose laws directly to the people.

Davis’s key insight is that the issue of whether a private party has standing to assert a state or federal interest should not rest upon principles of agency. Instead, whether a person can assert a governmental interest should focus on “a principle of constitutional accountability concerned with ‘the arbitrary exercise of the powers of government.’” (P. 2.) Here, Davis agrees with the Supreme Court’s view that Article III justiciability limitations like standing are designed to protect separation of powers, insofar as they prevent the shielding of the co-equal branches from accountability.

But Davis goes further to argue that this principle of constitutional accountability implicates the Due Process Clauses, somewhere scholars have not looked. In Davis’s persuasive view, a primary concern where a party seeks to invoke a governmental interest is that the party will impair the interests of third parties not before the court. Due process provides the legal and conceptual framework to address the problem expressed in a case such as Diamond—that a private party invoking state interests may be seeking to “enact a code” for its own interests, to the detriment of others.

Davis builds on his insight to develop a framework for determining when a party may assert the interests of the state or the federal government, based on the type of state interest asserted (corporate, institutional, administrative, and substitute) and the protections available to prevent arbitrary or abusive lawsuits (constitutional, statutory, regulatory, and professional). He also distinguishes the interests of the United States from the interests of individual states, who have much more discretion in permitting parties to assert their interests. In contrast to the Court in Hollingsworth, Davis’s framework “does not require legislatures to limit the power of government standing to only traditional government employees and common law agents of the state.” (PP. 3, 25.) Instead, a party may assert the state interests “where there are sufficient protections . . . for the rights of defendants and third parties who may be harmed by arbitrary litigation on the government’s behalf.” (PP. 3, 34.)

Davis wisely limits his article to the issue of standing to assert governmental interests. But his insight—that state standing should be understood as a doctrine that implicates constitutional accountability—has far-reaching implications. As I have argued, as well as others, private suits for private remedies also raise due process concerns about the interests of third parties. Accordingly, in some situations an uninjured party, such as a class action attorney, should have standing to assert the interests of those injured when the injured parties cannot protect their own interests. That class action attorney is no different from the state when, asserting what Davis calls a “substitute” interest, it brings a parens patriae lawsuit to vindicate the rights of those injured. In fact, all lawsuits have this quality insofar as they implicate issues of law and fact that affect nonparties. Thus, the “interplay of the first three articles of the Constitution and the Due Process Clause” (P. 25), which Davis argues should inform government standing, arguably underlies the Article III standing concerns in all contexts, effectively turning every lawsuit into delegation of enforcement power which may raise due process concerns.

To his credit, Davis acknowledges this possibility in noting, for example, that “the link between the day-in-court right and standing are apparent.” But he points out that private and governmental contexts differ in important ways that should not be ignored. (P. 33 & n.224.)  For example, states can make law while private parties cannot, much to the chagrin of Eugene Diamond. Indeed, the brilliance of the article stems not only from Davis’s creative insight about due process, but from his meticulous attention to the important differences of seemingly similar situations.

These far-reaching implications demonstrate the force and insight of Davis’s article. Davis rather modestly notes that his framework does not “transform all hard standing cases into easy ones,” but only “makes it possible to have a sensible normative debate.” (P. 8.) But Davis gives short shrift to his contribution, which clarifies a notoriously difficult subject and allows one to see the issues implicated by government standing in the correct way. That is why I like this article lots.

Into Litigation’s Black Hole: A Cosmic Solution

Mar 31, 2015 Linda S. Mullenix1 comment

Linda S. Mullenix

How many federal courts scholars can identify what is meant by the litigation “black hole?” If you know the answer to this question, chances are you teach mass tort litigation or worked on asbestos litigation thirty years ago. And if you want to know what became of that black hole, Judge Eduardo C. Robreno of the Eastern District of Pennsylvania offers some answers.

Asbestos litigation was a seminal mass tort litigation and its procedural history provides an interesting parable about dispute resolution modalities. The flood of asbestos litigation began in the late 1970s and for approximately twenty years the Judicial Panel on Multidistrict Litigation resisted creation of an asbestos MDL. After the Judicial Conference issued a report on the nationwide asbestos litigation crisis, the Panel relented and finally created asbestos MDL-875 in 1991, docketed in the Eastern District of Pennsylvania.

The famous “black hole” refers to the contention by attorneys that the creation of the MDL—and the transfer of their cases to the MDL court—would send their asbestos cases into a litigation black hole, and that their cases would disappear forever. In issuing its order, the MDL panel took pains to assure lawyers that the MDL would not do so.

The asbestos MDL played a major role in the development of mass tort litigation, settlement classes, and Rule 23. Under the MDL umbrella, in 1993 attorneys consummated the first nationwide Rule 23(b)(3) asbestos settlement class. In 1997, the Supreme Court repudiated this settlement in Amchem Products v. Windsor based on lack of adequacy, typicality, and commonality. In 1999, the Court again repudiated a nationwide asbestos class settlement—this time certified under Rule 23(b)(1)(B)—in Ortiz v. Fibreboard Corp.

A lingering question concerns the fate of the asbestos MDL after these failed attempts at global peace. What happened to the asbestos MDL, and how were those asbestos cases resolved? Did the MDL fulfill the prophecy of a litigation black hole, or is there another story worth knowing? Judge Robreno offers some interesting and noteworthy answers.

Judge Robreno inherited supervision of the asbestos MDL docket in October 2008. In ensuing years, he developed a case management plan to resolve all the asbestos cases on the MDL docket. Significantly, the program he fashioned resolved claims on an individual, case-by-case basis. He concluded that aggregation and consolidation of cases had failed, and the appropriate approach to resolve the massive docket was to disaggregate the cases. The success of this judicially managed program gives pause to those who contend that mass tort litigation involving thousands of claimants cannot be resolved on an individualized basis.          

After organizing court personnel and setting up a communications system, Judge Robreno implemented a six step process to resolve each case: (1) transfer of all outstanding federal asbestos cases to the Eastern District of Pennsylvania, (2) severance of cases into single-plaintiff motions, (3) plaintiffs’ submission of medical reports, (4) institution of show cause hearings, (5) scheduling orders for discovery, and (6) summary judgment motions. Judge Robreno reports that cases transferred and consolidated in MDL-875 were rarely remanded to the originating court.

The results of this program are impressive. He reports that since 2006, 186,524 cases were transferred to MDL-875. Of those cases, 183,545 have been resolved, leaving only 2,979 cases on the MDL docket.

Judge Robreno offers important lessons from his experience managing the largest and oldest personal injury mass tort litigation. First, he questions whether, in retrospect, a national MDL was necessary to handle the asbestos litigation. Second, he opines that unless courts establish a “toll gate” at the entrance to litigation, non-meritorious cases will clog the process. Therefore, he urges courts to establish early procedures by which each plaintiff must either provide facts to support their claims by expert diagnostic reports or risk dismissal. Third, he recommends that each case be disaggregated into the lowest common denominator, separating each claim against each defendant to stand on its own merits. Accordingly, he contends that any trial should not be bifurcated or trifurcated.

Judge Robreno’s experience in resolving this massive asbestos docket has made him chary of aggregative solutions to mass injury litigation, which he characterizes as falsely waiting for “Superman.” The alternative, however, requires a dedicated commitment of judicial resources to implement a program such as the one he designed. Once such a system is established, it is crucial to allow lawyers to be lawyers and judges to be judges. The judge must make the roadmap for litigation as clear as possible, and then make timely rulings to guide litigants. Judge Robreno’s one-plaintiff-one-claim approach bolsters litigants’ confidence in the process, by avoiding both the perception by plaintiffs that aggregation is designed to “clean house” by dismissing cases and the perception by defendants that it is designed to coerce settlements.

It is satisfying to learn the dénouement of the asbestos story that remained in the aftermath of the Amchem and Ortiz decisions. Similar to the resolution of a litigation whodunit, Judge Robreno’s detailed article provides an excellent history of this chapter of asbestos litigation. Thus we now learn that the litigation black hole never materialized to sweep away and forever vanish individual asbestos claims brought into that MDL.

The Settler-in-Chief

Mar 17, 2015 Jay TidmarshAdd a Comment

Jay Tidmarsh

In his famous, unfinished article The Forms and Limits of Adjudication, Lon Fuller posited that certain types of claims—he called them “polycentric” disputes— were incapable of resolution through adjudication. In these disputes the number of interested parties is so large and the potential ramifications of the dispute so vast that it is impossible for each person affected by the decision to participate in the decision-making process through proofs and reasoned arguments—participation which, Fuller argued, was the sine qua non of adjudication. According to Fuller, the binary nature of a second decision-making mechanism—voting—also made elections a poor means for resolving mass disputes, with their multifaceted nuances. Therefore, the only legitimate mechanisms to resolve polycentric disputes were negotiation or managerial direction. One type of dispute that Fuller held out as an exemplar of polycentrism was a labor dispute over wages in a centralized economy: the way in which different levels of increase in wages would have ripple effects across the economy made it unimaginable that a judge or a voter could determine the question of a proper wage.

Of course, Fuller’s claim is contestable, both theoretically and factually. In particular, the rise of complex litigation, which emerged as a significant legal phenomenon after Fuller drafted his article in 1957, has tested the assumption that large-scale disputes cannot be resolved through proofs and reasoned arguments. But the course of complex litigation over the past sixty years has also given Fuller’s thesis some support. Consider, for example, the aggregation techniques that courts in complex disputes have employed: class actions that limit participation rights in return for the promise of adequate representation and MDL proceedings whose bellwether trials are designed to channel most cases into settlement and whose settlement structures take their inspiration from administrative agencies and insurance companies. In each of these, the right of each affected individual to participate through proofs and arguments falls by the wayside. Likewise, some of the “best practices” for resolving aggregate litigation—for instance, providing separate representation for each interest group to prevent conflicts of interest within groups and using statistical sampling to ensure that issues of liability and damages are determined accurately on a macro scale—highlight the difficulty of guaranteeing the individual participation and the individualized assessment of claims that lie at the heart of Fuller’s adjudicatory paradigm.

Fuller’s paradigm casts a long shadow over complex litigation. In recent years courts have seemed especially reluctant to stray too far from the traditional understanding of adjudication that Fuller describes. Courts have declined to head down adventurous doctrinal paths that would facilitate the aggregation of large numbers of cases: think, for instance, of the many cases narrowly construing Federal Rule 23, Wal-Mart’s rejection of the use of trial by statistics, and the increasing judicial resistance to cy pres relief. Whatever the merits of these decisions (and some of them seem to me more defensible than others), convincing a present-day court to use its adjudicatory powers to resolve “polycentric” claims in a single, comprehensive lawsuit is an uphill climb. Yet even if courts are reluctant to adjudicate mass disputes, the disputes themselves continue to proliferate. Predictably, substitute mechanisms have stepped into the breach.

Adam Zimmerman has explored many non-judicial dispute-resolution mechanisms. His latest article turns to another one: presidential settlements, which are deals brokered by the White House that extinguish the legal rights of claimants in favor of an executive-branch compensation system, without judicial involvement or imprimatur. The BP oil spill settlement is perhaps the largest and most recent example. As Zimmerman recognizes, however, presidents have been hammering out similar deals since the earliest days of the Republic. In the past four decades alone, President Carter negotiated, and President Reagan implemented, the Algiers Accords, providing a compensation mechanism for claims arising from the Iranian Revolution; President Clinton engineered a settlement between Holocaust victims and banks that had confiscated Jewish bank accounts; and President George W. Bush brokered a deal between the government of Libya and the victims of the Lockerbie bombing. Over the years presidents have also intervened to resolve labor disputes—a role that calls to mind Fuller’s argument that such disputes are classically polycentric and therefore beyond the legitimate reach of adjudication.

As Zimmerman points out, the president’s role as “settler-in-chief” poses certain practical problems that plague all processes for resolving mass injuries. The first is the lack of representation at the bargaining table for victims or others affected by the dispute; while the president stands in for the victims in the negotiations, the White House’s own political and international agendas make the president a less than faithful agent of the victims. Second and relatedly, presidents may ignore conflicts of interest among claimants. For example, presidential settlements of labor disputes often sacrifice the interests of those entitled to compensation for past harms in favor of those who preferred a better prospective remedy. Similarly, the varying strength of Holocaust survivors’ legal entitlements to the recovery of funds was largely ignored. A third difficulty is assessing the entitlements of individual claimants with accuracy. In the Lockerbie settlement, for instance, each plaintiff received the identical lump-sum award, despite variations in individual injury and damage. Simply put, without effective judicial review of these settlements, the quality of the President’s decision-making and the fairness of the settlement itself remain open to criticism.

These settlements also raise constitutional concerns. As highlighted by the murkiness of the Supreme Court’s opinion in Dames & Moore v. Regan, which upheld the Iranian claims tribunal, the precise boundaries on the president’s Article II power to extinguish claims is uncertain. When the president acts without congressional approval, as is often true with presidential settlements, the legitimacy of the President’s action in compromising private claims depends entirely on the breadth of this power. Whatever the precise scope of that power at a given instant, there is also a fear of the slow but inexorable accretion of power to the president (at the expense of both Congress and the judicial branch); under Justice Jackson’s framework in the Steel Seizure Case, congressional acquiescence to one presidential settlement may implicitly expand the president’s powers in the next. For instance, the BP oil-spill settlement, in which claims were largely based on past harms and did not touch in a substantial way on international relations, seems a step beyond prior settlements that resolved domestic labor disputes or claims arising from the actions of sovereign nations. Presidential settlements raise other separation-of-powers questions. For example, if the power to compromise private claims is indeed one that the president enjoys under Article II, it becomes uncertain whether that power is subject to any limitation except for other constitutional provisions, such as due process. And it is uncertain whether Congress has the ability to regulate or constrain the president’s actions in negotiating these settlements.

With respect to these practical problems, Zimmerman argues that the president should import into the settlement process some of the best practices of complex litigation: ensuring that groups with distinct interests have a voice in shaping the settlement, avoiding conflicts of interest in the bargaining process, and enhancing the accuracy of individual awards through methods such as sampling, bellwether trials, and statistical aggregation. Zimmerman also urges that the president subject the settlement to a process of judicial review, or at least independent review in an Article I court, to ensure its fairness. The problem, however, is how to ensure that a president will adopt measures that constrain presidential discretion and flexibility in brokering a deal. The article suggests—perhaps somewhat optimistically, absent recent examples of presidents having done so—that the president might welcome the importation of these mass-action principles into the process as a means of enhancing the legitimacy of the settlement. The article is more cautious about whether Congress has the power to impose these limits on an unwilling president, although its reading of cases like Youngstown and Dames & Moore is cautiously optimistic that Congress can play such a role in at least some presidential settlements.

Zimmerman’s provocative treatment of these issues brings me back to Fuller’s critique. If voting, adjudication, negotiation, and managerial direction are the principal dispute-resolution mechanisms, presidential settlements are a hybrid of the final two (some managerial direction, some negotiation) with a dash of voting thrown into the mix (given the president’s status as a political actor).¹ Zimmerman’s proposal adds to the recipe a pinch of adjudication: participatory rights for those affected, some individualized assessments of the merits of claims, and a neutral observer’s check on the fairness of the outcome. The value of Fuller’s model is to identify possible tools for dispute resolution; the value of Zimmerman’s work is to show that the real world is more complex than models—in other words, every approach to the resolution of mass disputes must rely on a mix of the tools associated with each model if it is to succeed. For Fuller, legitimacy in decision-making derives from the decision-maker’s adherence to the essential form of a decision-making model; for Zimmerman, legitimacy in decision-making is enhanced by blending elements from different models. If a blended approach is right, it becomes important to determine which blend of principles works best for each type of mass dispute and then to establish structures that channel each type of dispute into its best dispute-resolution form.

At the bottom of Zimmerman’s description of presidential settlements is a cautionary tale. For example, could a president, without input from asbestos victims, broker a settlement of all present and future asbestos claims that bars victims from bringing suit and relegates them to a flat payment of $50,000? And if the Article II power exists, is that the best way to conclusively resolve the legal aspect of the asbestos crisis? The first question (one of constitutional power) is related to, but distinct from, the second (one of best practices). Until we figure out what the best practices are and how we can implement them, we invite the president to push the boundaries of Article II power in unprincipled and counterproductive ways.

1. The dash is quite small, for it is unlikely that many voters would vote for or against a presidential candidate solely because of the candidate’s position on a presidential settlement.

Judicial Competition for Case Filings in Civil Litigation

Feb 25, 2015 Allan ErbsenAdd a Comment

Allan Erbsen

Scholars have extensively explored how outcomes in civil litigation can hinge on an adjudicator’s identity, institutional affiliation, and location. Judges bring varying perspectives and experiences to the bench that may color their assessment of factual contentions and legal arguments. Jurisdictions have idiosyncratic rules and customs. Geography often imposes burdensome participation costs, unique local norms, and distinct jury pools. Different courts therefore might reach inconsistent conclusions in otherwise identical cases. Lawyers pay close attention to these differences and try to exploit them using tactics that are often derisively described as “forum shopping.”

Although lawyers are active shoppers, observers are loath to think of judges as active sellers. We expect zealous lawyers in an adversarial system to exploit available advantages. But we take comfort in conceiving of those advantages as arising from inevitable variations among courts rather than through deliberate competition among judges. From this perspective, judges should be agnostic about where cases are filed (assuming filings comply with applicable laws), even as they operate within a system in which forum choice matters to litigants. If judges are agnostic, then the term “forum shopping” would be misleading given the absence of a market. Lawyers would be shopping for courts only in the sense that birds shop for trees in which to build nests. Trees might benefit from hosting birds and may be well-adapted to attract them, but a tree’s allure is not a product of conscious choices amenable to criticism and reconsideration.

But if lawyers react to incentives that judges deliberately provide, then the shopping metaphor would be more potent and the judicial competition potentially more unseemly. The existence of judicial sellers enticing party buyers would raise at least two difficult questions. First, what is the normative justification for allowing a judge’s desire to increase local filings to influence judicial decisionmaking? Second, what corrective measures are necessary to prevent or mitigate abuse? These are among the many questions that Daniel Klerman and Greg Reilly explore in their thoughtful new manuscript Forum Selling.

Klerman and Reilly analyze competition for civil case filings through four case studies of judicial behavior (as well as other examples of non-judicial behavior). The examples run the gamut from state to federal, domestic to foreign, and modern to historical. Each has received prior academic scrutiny, but linking them illuminates broader patterns. The case studies explore: (1) local procedural rules and practices that have helped attract approximately 28% of this country’s recent patent suits to the U.S. District Court for the Eastern District of Texas; (2) state courts that were “magnets” for a large volume of class action and mass tort litigation despite being ill-equipped to handle such complex cases and allegedly disinclined to do so fairly; (3) the District of Delaware’s effort to lure bankruptcy filings by adopting practices favorable to debtors; and (4) drawing from Klerman’s prior work, the competition for filings among England’s three common law courts in the seventeenth and eighteenth centuries, which may have inspired judges to make the common law friendlier to plaintiffs. The article focuses primarily on patent litigation, but uses the other examples to highlight common causes, features, and consequences of “forum selling.”

Viewing the case studies as manifestations of a common phenomenon leads Klerman and Reilly to several insights. First, they suggest that forum selling exists, even if it operates subtly and masquerades as innocent procedural experimentation or implementation of ambiguous texts. Courts can manipulate forum choice in their favor through ostensibly innocuous means, such as by controlling the discovery schedule, minimizing opportunities for pre-trial merits determinations, and interpreting procedural rules either strictly (e.g., to limit transfer out of the forum) or loosely (e.g., to facilitate class certification). Appellate courts could in theory police this maneuvering, but in practice these non-final non-merits rulings tend to evade appellate review, especially if they induce a settlement.

Second, the authors suggest that forum selling is attractive to judges for several recurring reasons. For example, judges may want to enhance their own or their court’s prestige by presiding over high status cases, augment their court’s budget (and resources) due to a higher caseload, or support the local bar by attracting business. Case filings can also strengthen economies in rural areas when visiting litigants eat, shop, work, and sleep locally. (The authors report that a Fairfield Inn near an East Texas patent forum catered to the influx of lawyers by subscribing to Pacer.)

Third, the case studies indicate that competition for filings leads courts to skew rules and customs in favor of plaintiffs because plaintiffs usually decide where to file (absent a contractually specified forum). Thus, while competition could in theory inspire courts to make themselves more attractive to all parties, Klerman and Reilly contend that in practice competitive courts focus on the parties that they can directly influence.

Fourth, a common feature of each example is that forum selection rules tolerate litigating a particular suit in multiple courts. For example, constitutional constraints on personal jurisdiction and statutory criteria for venue often give plaintiffs choices about where to sue limited only by malleable standards. This flexibility enables forum shopping, which in turn enables forum selling. The authors suggest tightening limits on jurisdiction and venue—or facilitating transfer and removal—to immunize defendants from entrepreneurial fora.

The article’s unsettling examples of courts appearing to offer plaintiff-friendly (and thus defendant-hostile) rules might tempt readers into thinking that all choices that could be characterized as forum selling are inherently undesirable. But Klerman and Reilly are careful to avoid sweeping normative conclusions based on limited empirical evidence.

Instead, their analysis of forum selling raises a fascinating question for further study: how should commentators decide whether particular competitive strategies are appropriate? That question is difficult because courts routinely must make discretionary choices about how best to administer justice. Some choices—even if made for unassailable reasons—will render particular courts more attractive to certain litigants. The fact that one forum is more enticing than another is therefore not by itself evidence of any questionable decisionmaking by courts. Forum selling may spur forum shopping, but forum shopping can occur even without a dubious sales pitch.

Commentators could adopt at least two approaches to challenging judicial behavior that incentivizes forum shopping. First, judicially driven forum shopping might be suspect when the court intentionally seeks to attract filings. This skepticism is plausible because judicial self-aggrandizement seems indecorous and may intrude on the prerogatives of coordinate branches of government to establish and implement regulatory priorities. Yet the prospect of courts benefitting by improving their performance is not necessarily undesirable, depending on what the courts are doing. For example, if courts attract plaintiffs by improving their expertise and striving for neutrality and fairness, then the benefit to a court from increased filings seems ancillary to the legitimate benefits to litigants. (Even the losing party benefits by receiving a more meaningful day in court compared to what it would have received in a less expert or less fair forum.) Second, commentators might question forum selling when the underlying choices either exceed the scope of judicial authority or produce suboptimal results. For example, courts might render themselves attractive for unsavory reasons (such as bias), make choices that are better left to the legislature, or distort filing incentives to the point of undermining the legitimate interests of competing fora.

This final, context-sensitive approach to assessing forum selling is attractive, but raises several questions. Commentators must know how to define the proper judicial role before deciding that forum selling exceeds it. They also need a theory of what counts as a legitimate benefit of a procedural rule, and what counts as a troubling cost, to determine if choices that make the forum more attractive produce acceptable outcomes for the parties. And they need a theory about the proper allocation of jurisdiction among coordinate fora in a federal system to decide if fora that lose filings have a legitimate grievance against fora that attract filings.

Forum selling thus implicates fundamental questions about federalism and civil procedure that scholars have been studying for centuries. Klerman and Reilly’s careful and thoughtful analysis adds a helpful dimension to these questions that is grist for further study.

Expanding Our Understanding of Narrowing Precedent

Feb 11, 2015 Kevin C. Walsh1 comment

Kevin C. Walsh

Richard Re’s recent essay, Narrowing Precedent in the Supreme Court, identifies and examines the judicial technique of narrowing precedent as a practice that is meaningfully distinct from other ways of dealing with precedent, such as distinguishing, following, and overruling. The essay is gracefully written, carefully argued, and generative of insights and additional arguments.

In Re’s taxonomy of how courts use precedent, narrowing means “not applying a precedent when it is best read to apply.” Thus understood, narrowing contrasts both with following precedent (“applying a precedent when it is best read to apply”) and also with distinguishing precedent (“not applying a precedent where it is best read not to apply”). According to Re, narrowing is also distinct from overruling. Unlike the overruled precedent, the narrowed precedent remains available for future application, though within a narrower compass.

Everyone who has argued about the application of precedent in one form or another should already understand that courts often employ this “narrowing” technique. But by differentiating this technique from both “overruling” and “distinguishing,” Re helpfully brings greater analytical clarity to discussions of the judicial treatment of precedent. By “hon[ing] the customary vocabulary that lawyers and judges use when discussing case law,” Re convincingly shows that judicial narrowing at the Supreme Court is common, as well as often (though not always) legitimate. Re’s analysis also rescues some of the Roberts Court’s more controversial narrowing decisions from the charge of “stealth overruling.”

Narrowing Precedent both prompts and channels careful thinking about the categories that we use for discussing how courts deal with judicial dispositions of prior cases. The essay invites further exploration of the complex legal relations that traffic under the familiar labels that judges and lawyers casually deploy in describing what they are doing with precedent.

One way of taking up that invitation is to begin with a question about why we might want to add “narrowing” to our working taxonomy of how courts deal with precedent. Even if Re is right to insist that there is something distinct about “narrowing,” in comparison with “overruling” and “distinguishing,” might it also be the case that every instance of narrowing can nonetheless still be described using only these two more familiar categories?

Take, for instance, Re’s discussion of the Court’s treatment of Flast v. Cohen, “[o]ne Supreme Court decision [that] has been narrowed more than any other.” When first decided, Flast was thought by many to open up broad areas for taxpayer standing. But Flast’s authorization of taxpayer standing was later narrowed to challenges based on specific constitutional limitations on the taxing and spending power (Richardson), then further narrowed to authorize taxpayer standing only for Establishment Clause challenges to certain legislative actions and expenditures (Valley Forge, Hein), and then narrowed even further to exclude taxpayer standing for Establishment Clause challenges to tax credits (Winn). The first decision or two declining to apply Flast may have been appropriately described as “distinguishing,” but not the entire course of such decisions. It is evident beyond argument that the later decisions changed Flast—they narrowed it—and did not simply leave it in place. But it also seems perfectly natural to describe what the Court has done to Flast as partially overruling it. That is, when the Court has held a different rule to apply in an area previously governed by Flast, it has functionally overruled Flast with respect to a particular set of applications.

Re argues that “[l]egitimate narrowing is the decisional-law analogue to the statutory-law canon of constitutional avoidance.” The analogy holds insofar as both techniques exploit ambiguities to constrain the legal force of one source of legal authority (a precedent or a statute) as a way of giving effect to other legal principles (whether found in other cases or the Constitution or some background source of legal principles). But another, and in some circumstances closer, analogy may be holding a statute partially unconstitutional coupled with statutory severance. After all, as Re puts it elsewhere in the essay, narrowing effects “a partial erasure of decisional law.” Following this insight a bit further might lead one to believe that when narrowing ventures beyond strained distinguishing (akin to constitutional avoidance), it becomes partial overruling (akin to partial unconstitutionality plus severance).

One benefit of recognizing the functional equivalence of narrowing and partial overruling in certain circumstances is to highlight what may be an unduly constricted but pervasive misunderstanding of lower-court freedom to narrow Supreme Court precedent. Re’s essay understandably brackets off implications for vertical stare decisis; assessing the legitimacy of narrowing by lower courts presents different and harder issues than horizontal narrowing. But by showing that narrowing is common and often legitimate at the horizontal level, the essay’s taxonomy at least reveals that it is a mistake to preemptively rule out the possibility of all lower-court narrowing simply by affixing to it the label of partial overruling.

To explore what this might mean for vertical stare decisis, it would be illuminating to run through each of the examples of legitimate narrowing that Re discusses at the Supreme Court level and to inquire whether a lower court would likewise have been free to narrow. That is, would the lower court have complied with governing stare decisis norms by narrowing precedent in the way that the Supreme Court did? If the answer for a given case is “yes,” even though the kind of narrowing that the lower court engaged in could easily be understood as an instance of partial overruling (i.e., overruling with respect to a particular set of potential applications), then the principle that lower courts may not anticipatorily overrule an undermined precedent may have a more confined reach than many think. Take, for example, Hein v. Freedom from Religion Foundation, in which the Supreme Court held that the taxpayer standing authorized by Flast was limited to specific legislative appropriations rather than executive action funded by general discretionary appropriations. This narrowing of Flast could be understood as a partial overruling of it. And yet the line adopted by the governing plurality decision is the very line identified and applied by the district court. While the Seventh Circuit reversed this decision (and itself was later reversed in turn), the discussion throughout was about how best to apply the set of cases in the Flast line rather than about whether the district court or court of appeals had violated some norm of vertical stare decisis. And that is as it should be.

The practical fluidity of the conceptual boundaries between narrowing a precedent, partially overruling a precedent, and figuring out the best application of a set of precedents gives rise to a final observation. The customary way of thinking about how particular judicial decisions change the content of the law is in terms of their effect on particular legal materials like a precedent or a statute, and usually in terms of subtraction. Narrowing Precedent sharpens this way of thinking. But using Re’s conceptual tools can reveal a different frame altogether, one that is consistent with Re’s even while describing changes in the content of the law in a precisely opposite manner.

Re’s central concept is the idea of the best reading of a precedent. In his taxonomy, the mirror image of narrowing (“not applying a precedent, even though the precedent is best read to apply”) is extending (“applying a precedent where it is not best read to apply”). The reason that both narrowing and extending can be legitimate practices is that precedents are never best read in isolation from all the other relevant legal materials in a case. The inquiry in every case is what the court has added or should add to the law going forward; only sometimes does this also involve the metaphorical paring back or cutting out of some particular source of law. And even then, there is no conceptual or legal need to describe that removal in terms of excision rather than displacement. For instance, the narrowing of Flast is simultaneously the extension of the principles and cases that countervail against taxpayer standing.

The distinction and application of precedents is one of the most fundamental functions of lawyers and judges. Narrowing Precedent brings new and welcome clarity to the theoretical understanding of this function. And in the reflection of our newly clarified conceptual lens, we can better understand the jurisprudential truth that the operative rules and standards in a working legal system are not “the statements found in the texts of constitutions, statutes, and judgments or judicial orders, but . . . the propositions which are true, as a matter of law, by reason (a) of the authoritative utterance of those statements taken with (b) the bearing on those utterances and statements (and on the propositions those utterances were intended to make valid law) of the legal system’s other, already valid propositions.” (4 Collected Essays of John Finnis 18-19). For the illumination it offers, one should approach Re’s essay the way that judges and lawyers should approach the law: Read the whole thing!