Ethical Lawyering in the Clientless World of Class Actions in Canada

Jul 2, 2012 Janet Walker

Janet Walker

It is surprising what you can learn by watching the next generation coming of age. In this way, lawyers in the United States can gain much from following the experiences of the Canadian legal community as it climbs the steep learning curve needed to formulate the parameters and protocols for complex litigation.

Civil litigation and the structure of the legal profession in Canada do not pretend to challenge American exceptionalism. There are important differences between the two legal systems. But they have enough in common that academics and others in the U.S. can gain useful insight into class actions practice by hearing how Canadians are currently struggling to meet the kinds of challenges that have long been the subject of debate in the U.S. In this fine article, Jasminka Kalajdzic explores a new subject, at least for Canadian lawyers: the special ethical concerns that arise for counsel in class actions.

Kalajdzic identifies and examines three key ethical dilemmas unique to class actions: 1) entrepreneurial litigation, in which the lawyer’s financial stake is out of all proportion to any individual class member’s interest; 2) the adversarial void, in which the interests of class counsel and defense counsel in gaining approval for settlements are aligned, so the court is deprived of the fundamental forensic benefits of the adversary system; and 3) clientless representation, in which the fiduciary relationship of the lawyer to the client in providing advice and taking instructions is so notional that it cannot be relied upon to safeguard the interests of the class.

Kalajdzic then takes a closer look at the third problem: ethical lawyering in what is, for all practical purposes, clientless litigation.  She notes that the Ontario Law Reform Commission recommended tailoring the Rules of Professional Conduct to make them responsive to the special concerns raised by class actions in 1982, a decade before class actions even were adopted in Ontario.

While this problem is not new in the U.S., Kalajdzic explains how it is compounded by Canadian courts’ insistence on clinging to the notion of the representative plaintiff as a genuine client. She reviews two recent cases, Fantl v Transamerica and Richard v British Columbia, to show the implications of relying upon and reinforcing the supposedly “genuine” client relationship between class counsel and the representative plaintiff as a means of serving the interests of the class.

In Fantl, a representative plaintiff opposed a lawyer’s attempt to take the proposed class action with him upon leaving the firm. The lawyer sought an order either requiring the representative plaintiff to accept him and his new firm, or replacing the representative plaintiff with another plaintiff. The Court (and the Court of Appeal) sided with the representative plaintiff, allowing him to sever the relationship with the lawyer who had prosecuted the matter for several years. Many features of class actions widely appreciated in the U.S. would question the assumption that the interests of the class were better served by giving primacy to the representation of the lead plaintiff over that of class counsel. Still, the Ontario courts preferred to rely upon traditional notions of named-party litigation in making this decision.

In Richard, shortly after class certification, a decision in a related case meant that the claim of the representative plaintiff in Richard was barred by statute of limitations. After protracted negotiations, class counsel received a final offer of settlement for the claims of those who were not time-barred. The representative plaintiff instructed counsel to reject the offer, and counsel sought unsuccessfully to have the plaintiff class divided into sub-classes. Counsel then sought to have the class re-defined to eliminate the statute-barred claimants and to replace the representative plaintiff, who in turn filed a successful motion to remove counsel. Eventually, the matter was sorted out and the claimants whose recovery was not barred were able to proceed separately.

These decisions mark an important moment in the development of class actions practice in Canada, in which the legal community comes to grips with the new ethical issues arising from the potential for a conflict of interest between the representative plaintiff and the interests of the class as a whole. Kalajdzic explores the reasons the Canadian legal community is only now tackling these ethical issues and how these issues might best be addressed. Relying on a wealth of analysis from American jurisprudence and commentary, supplemented by interviews with seven of the most experienced Canadian class actions jurists, she considers options for better understanding and enforcing the ethical obligations of class counsel.

She makes a number of thoughtful and specific recommendations for reform to the Rules of Professional Conduct and for further consideration of emerging issues. She concludes that normative confusion persists in the absence of a clear sense of who the client is in class litigation and what duties are owed to the client. And she calls for a more fulsome discussion within the legal community so judges will not be left to build the body of ethical rules piecemeal at the expense of the interests of class counsel, the public, and absent class members.

This concise and informative article provides readers in the United States with real insight into Canadian class action practice at a critical juncture in its development – the discovery of the need for specialized ethical rules.

Plausibility Pleading and Employment Discrimination

May 28, 2012 Suzette M. Malveaux

Suzette M. Malveaux

In a sea of law review articles analyzing the potential impact of the more rigorous federal pleading standard of Ashcroft v. Iqbal, Charles Sullivan’s Plausibly Pleading Employment Discrimination stands out for a number of reasons.  As an initial matter, Sullivan grapples with an important question plaguing the civil rights community and the employment bar: does Swierkiewicz v. Sorema—the unanimous 2002 opinion that took a lenient approach to pleading discrimination cases—remain good law post-Iqbal?  Sullivan argues that Iqbal did not overturn Swierkiewicz, leaving intact the ability of plaintiffs to plead employment discrimination without alleging a prima facie case under the McDonnell Douglas test.

But Sullivan then considers the alternate view: assuming arguendo that Iqbal did overrule Swierkiewicz, what should plaintiffs do to avoid dismissal for failure to state a claim under this more rigorous pleading regime?  Sullivan offers a variety of approaches, each with strengths and weaknesses. This willingness to explore the proverbial edge of the envelope makes this article a compelling read.  It combines pragmatism, creativity, and boldness at a time when many are struggling to make sense of the impact of the new federal pleadings standard in the civil rights arena.  Given the importance of pleadings as an access to justice issue, this article provides an invaluable perspective.

The article first describes the evolution from notice to plausibility pleading and the potential deleterious effect of the latter on typical individual disparate treatment employment claims. Sullivan describes the various procedural and substantive criticisms of the plausibility standard, including concern that absent discovery, individual employment discrimination cases will be unfairly dismissed because of information asymmetry between the parties.  Although to date empirical studies of Twombly’s and Iqbal’s impact on the viability of employment discrimination and civil rights claims are mixed, this does not change the fundamental question posed by Professor Sullivan: “whether alleging an identified action as being discriminatorily motivated suffices.”  (P. 1643.)  In other words, is it enough today for plaintiffs to plead what Swierkiewicz did?

Swierkiewicz involved a plaintiff who alleged intentional employment discrimination under Title VII and the ADEA.  In a unanimous opinion written by Justice Thomas, the Court concluded that the plaintiff was not required to plead facts establishing a prima facie case of discrimination under the McDonnell Douglas test to sufficiently put the defendant on notice of plaintiff’s claim. McDonnell Douglas provides a method of establishing intentional disparate treatment through circumstantial evidence, but  the Court made clear that the test is “an evidentiary standard, not a pleading requirement.”

In Bell Atlantic Corp. v. Twombly and later in Iqbal, however, the Court shifted from requiring plaintiffs to plead facts demonstrating that a claim was possible to demonstrating that a claim was plausible.  The plausibility standard has led many practitioners, commentators, and judges to wonder if an employment discrimination claim that fails to plead a prima facie case can still set forth a plausible claim.  Sullivan concludes that “there is certainly good reason to believe that Swierkiewicz is good law,” noting Twombly’s favorable citation of its predecessor and lower courts’ hesitancy to assume Swierkiewicz has been overruled in the absence of clear direction from the Court.  But Swierkiewicz’s viability depends on how broadly or narrowly it is interpreted—a conflict which has yet to be resolved.

So Sullivan analyzes a “plaintiff’s worst-case scenario.”  (P. 1622.)  Assuming Swierkiewicz is dead, how can a plaintiff avoid dismissal for failure to state an intentional discrimination claim?  One obvious way is to plead facts establishing a prima facie case under McDonnell Douglas, consistent with Rule 11.  Although the McDonnell Douglas burden-shifting framework is admittedly not a pleading standard, the prima facie showing—which creates a rebuttable presumption of discrimination—would seem to comfortably provide a floor for pleading purposes, even assuming that Swierkiewicz is no longer good law.

As an alternative, a plaintiff may contend that he or she was treated worse than a comparator—someone similarly situated to the plaintiff.  Rather than accepting as true facts alleging discriminatory motive, a court would accept as true facts alleging that a comparator was treated more favorably and, therefore, plausibly infer discriminatory intent.  Subject to Rule 11 limitations, this should suffice for plausibility pleading.

Another strategy available for plaintiffs in an overruled-Swierkiewicz world would be to plead facts showing direct evidence of discrimination—a less likely option given modern discrimination’s subtlety and subconscious nature.  Professor Sullivan contends that “[a]s applied to the pleading context, this preference for direct evidence may satisfy plausible pleading by alleging this kind of evidence of discriminatory intent.”  (P. 1657.)

Finally, Sullivan offers a “more extreme” approach for plausibly pleading intentional employment discrimination claims post-Iqbal, which he contends is not only permitted, but “invited” by the Court.  (P. 1662.)  Sullivan suggests that plaintiffs plead “that the phenomenon of discrimination is more common than the courts might otherwise believe,” as indicated by social science research.  (P. 1662.)  Plaintiffs must plead sufficient facts to convince a judge that their claims of intentional discrimination are plausible, and can do so in various ways.  Sullivan’s way is “simply pleading this social science as fact, thereby requiring the court to take that fact as true.”  (P. 1663.)  As evidence of the workability of this approach, Sullivan points to the Court’s own reliance on economic research in Twombly as the basis for concluding that the defendants’ economic behavior was as consistent with parallel conduct as a conspiracy.  Perhaps social science research could nudge an intentional discrimination claim from possible to plausible in a similar way.  This could be particularly useful where a judge’s baseline assumption is that discrimination is rare and therefore implausible in comparison to alternative, more benign explanations for a defendant’s conduct.

This bold approach admittedly poses its own challenges.  For example, in the event that an expert is asked to opine about the general propensity of discrimination in the workplace, this may say little about the propensity of a specific employer to discriminate in a specific case.  At what level of generality should the factual allegations apply?  Moreover, courts may give little credence to expert testimony or social science research in the discrimination context.  The Court’s most recent treatment of sociology evidence at the class certification stage in Wal-Mart v. Dukes suggests an uphill battle.  And the questions remain whether a court must accord the presumption of truth to such legislative facts and, if so, what limits are appropriate.

Sullivan’s final proposal raises more questions than it answers—which makes its contribution so important.  This article moves the ball forward in assessing the viability of employment discrimination claims post-Iqbal, challenging readers to consider what is plausible in pleading.

Striking Out Specious Claims in Mass Tort Global Settlements

Apr 30, 2012 Sergio J. Campos

Sergio J. Campos

The late Richard Nagareda once noted that global settlements in mass tort litigation present a “Field of Dreams” problem – “if you build it, they will come.”  In the movie, people came to the Iowa baseball field in the corn fields because it was “money they had, but peace they lacked.”  The opposite is true in mass tort litigation.  In most cases, multinational corporations and plaintiffs’ firms with large inventories of claims typically achieve peace through a global settlement resolving all of the victims’ claims.  It is money that the individual victims lack, and it is why the victims consistently come in droves, many with claims that are specious at best.

In his excellent article Specious Claims and Global Settlements, Todd Brown examines three comprehensive settlements in mass tort litigation to identify the cause of the “Field of Dreams” problem.  He contends at the outset that the problem is caused by more than adverse selection, in which asymmetries in information allow plaintiffs with dubious claims to try to collect. (P. 20.)  Instead, Brown provocatively argues that the problem arises from how the parties define what a compensable claim is in negotiating the settlement, using the settlement to “supplant[] tort law with a negotiated grid for compensation.”  (P. 23.)  Brown shows that the parties negotiating the settlement define grids because they only care about the size of the settlement, not the distribution of the proceeds.  But by failing to establish more accurate distribution procedures, global settlements allow a thousand specious claims to bloom.

Brown carefully analyzes global settlements in asbestos, silica, and phen-fen litigation.  He shows that both plaintiffs’ firms and defendants have an incentive to define the claims covered by the settlement as broadly as possible.  In this way the plaintiffs’ firms collect the most claims possible to extract the largest settlement amount.  Brown provides vivid examples of “claim manufacturing”—collecting inventories of clients with little regard to the accuracy of their claims.  (see, e.g., pp. 11-12).  The defendants go along with this strategy because, in most cases, the global settlement amount is fixed (see P. 52), and the benefits of screening individual claims do not justify the costs.  In short, both parties are rationally ignorant because greater accuracy is costly and, in the case of the plaintiffs, usually leads to a lower expected recovery. (pp. 29-31).

But in defining categories of claims broadly, the settling parties invite individual victims to pass off specious claims as compensable ones.  Although Brown notes the incentives for filing specious claims, he is careful not to depict the parties involved in claim manufacturing too negatively.  Indeed, it is hard to imagine that intentional claim manufacturing is that widespread.  Brown instead argues that the filing of specious claims arises largely from two causes.  First, in most cases it is difficult to prove that an injury was specifically caused by the defendant’s conduct, which leads plaintiffs to err on the side of filing an uncertain claim.  Second, Brown argues that specious claims are caused by a “compartmentalization of responsibility.”  (P. 38.)  Since the recruiting, diagnosing, and processing of each individual victim’s claim requires a number of professionals, doctors, and experts, each may make a contribution that is so small that none are aware that they are aiding and abetting claim manufacturing.

The one counterexample Brown discusses is litigation involving silica, a chemical that, like asbestos, can cause a number of severe diseases when inhaled.  Brown notes that the litigation, which many initially had compared to asbestos litigation, collapsed after judicial intervention exposed “numerous flaws in the litigation-screening practices – largely borrowed from asbestos litigation practice – that generated the vast majority of the underlying claims.”  (P. 15.)  In fact, as Brown notes, this intervention led to some criminal prosecutions, although, due to the compartmentalization of responsibility, few individuals were ever sanctioned.

Brown offers four ways to limit the filing of fraudulent claims.  First, he applauds courts’ recent demands for greater evidence of specific causation from individual victims.  Second, to correct the problem of compartmentalization of responsibility, Brown insists on greater communication of ethical obligations to doctors and other professionals who assist with identifying claims.  Third, he argues for better procedures for auditing claims; such audits should (a) be mandatory; (b) utilize sampling to reduce costs; (c) be targeted; (d) use increased sanctions; (e) defer and suspend compensation to avoid payment to specious claims; and (f) be flexible.  (pp. 45-51).  Finally, no doubt inspired by the judicial intervention in the silica case, he calls for increased judicial scrutiny of distribution procedures in global settlements.  (pp. 51-52).

Brown’s sensitive analysis of the problem of specious claims demonstrates both his strong command of the intricacies of mass tort litigation, as well his command of the literature in a number of disciplines.  One approach that Brown does not explore, but might be worth thinking about, is whether other methods may reduce the need for evidence of specific causation, which in turn would reduce the proliferation of specious claims.  Since, for most mass torts, the evidence of causation is epidemiological in nature, it is difficult to translate population-based risk assessments to individual cases.  But, as David Rosenberg argues in an unpublished paper, that translation may not be necessary if limitations on insurance subrogation were lifted, allowing insurers to recover on behalf of the insured victims.  In this way the insurers can prove their losses using population-based evidence, and the victims can recover for their claims based on their actual loss rather than prove specific causation.  This is not so much a criticism but an approach inspired by Brown’s lucid treatment of the subject.

Brown is part of a group of scholars who are tackling what can be called second-generation problems in mass torts.  They have focused not on the appropriateness of private, aggregate enforcement for mass torts, but on how to improve that enforcement.  Their recent work has been thoughtful and exciting, and, as with Brown’s article, I have learned a great deal from their scholarship.

Interpreting the Federal Rules of Civil Procedure

Mar 26, 2012 Brooke D. Coleman

Brooke D. Coleman

The debate over how best to interpret legal text is not limited to the Constitution and controversial statutes, although the expansive literature about interpretation in those contexts might lead one to think that is the case.  There are plenty of other legal texts to argue about, and David Marcus’s article, When Rules are Rules:  The Federal Rules of Civil Procedure and Institutions in Legal Interpretation, focuses on none other than the Federal Rules of Civil Procedure.  Shocking as it may seem (maybe because we are all kicking ourselves that we did not notice this first), there is not much written about how judges should interpret the Rules.¹ Moreover, recent Supreme Court decisions, namely Bell Atlantic v. Twombly and Ashcroft v. Iqbal, demonstrate that reasonable people can disagree about how best to interpret even the most basic and simply-stated Rules.  What’s missing is a unified theory of how judges should interpret the Federal Rules, and Marcus’s article is here to save the day.

Marcus puts forward a theory of rule interpretation that respects the unique nature of how the Federal Rules of Civil Procedure came to be and how they continue to evolve.  The old adage of a parent loving each of her children equally—and appreciating their differences—applies here.  The rules are one of many “textual” children, and they cannot be interpreted as an agency regulation or a constitutional provision might be.

Marcus begins by canvassing existing modes of statutory interpretation.  He rejects a textualist approach because he argues that the rules themselves and their interpretive notes are succinct by design.  Moreover, he notes that there are sources outside of the text that provide a significant window into their meaning.  Marcus argues instead for what he calls an “institutional” approach—one that pays heed to the institutions that create and implement the Federal Rules and how the rulemaking process works.  This approach must recognize the various aspects of these institutions, how the interaction of those institutions might pose interpretive challenges, and what values emerge from that interaction.  The best method of interpretation must come out of an understanding of these institutions and their unique features and must ultimately serve their distinctive institutional values.

Applying these questions to the Civil Rules, Marcus argues first that judges must have discretion to interpret the rules, but that such discretion must be deferential to the rulemakers’ intent and purpose.  This might sound counterintuitive, he notes, but any student of the federal civil rulemaking process will recognize that this makes complete sense.  The rulemaking process was designed to be responsive and flexible.  That, in fact, was a foundational goal of its institutional design.  Thus, judges should resist implementing changes to the rules in light of new circumstances and should instead wait for the rulemaking process to respond.  The committee is made up of experts and the process itself is deliberative and open; as a result, the rules produced by virtue of that process have an air of legitimacy about them.  To let judges interpret them ad hoc would create confusion, delegitimize the rules, and defeat the goal of uniformity that underpinned their adoption in the first place.  For these reasons, Marcus explicitly rejects the dynamic method of statutory interpretation as ill-fitted.

Turning to what courts should do, Marcus argues that judges should feel free to consult a wide variety of sources, but that the weight given to those sources must account for the unique aspects of the rulemaking process.  He groups the outside sources that could aid in interpreting the rules into three tiers:  (1) the Advisory Committee Notes to the rules themselves; (2) Advisory Committee Reports; and (3) all other rulemaking documentation.  With the final tier of materials, Marcus emphasizes the differences between this documentation and analogous ones in the congressional setting.  For example, while statements made by members of Congress after the fact are given little weight in interpreting legislation, similar comments by rulemakers deserve more attention. For example, the Reporter of the rulemaking committee is often an academic who has an interest in clarifying rule intent because of his or her own professional pedigree.

Finally, Marcus addresses the canons of construction that should be used in interpreting the rules.  As for “substantive” canons, Marcus notes two that work particularly well in this context.  First, the “rulemaker primacy” canon requires that judges interpret the rules so that significant changes come from the rulemaking process and not from the bench.  Second, a “functional relationship” canon requires the court to respect the differences between each of the rules and the attendant differences in judicial function as to each.  Marcus then discusses “semantic” canons and determines that some are a good fit for the rules, while others might not be.

Applying this ecumenical approach to the Civil Rules, Marcus argues that the Court’s interpretation of Rule 8 in Twombly and Iqbal was indefensible.  First, as to intent, the text of Rule 8—“short and plain statement of the claim”—is undeniably imprecise.  But, Marcus points to the language rejected by the rulemaking committee that adopted Rule 8—“statements of facts constituting the cause of action.” That language communicated a pleading standard that required “nonconclusory” facts for each element of a legal claim–precisely what Twombly and Iqbal now appear to require. But Marcus argues that because the committee specifically rejected this language and meaning, the Court should have considered that rejection in interpreting the actual language of Rule 8.

Marcus looks to evidence outside of Rule 8 itself to further support his argument that the purpose and intent was contrary to the Court’s most recent interpretation.  Iqbal’s requirement that courts reject conclusory allegations not supported by well-pled facts directly conflicts with the rulemakers’ intent.  According to “third tier” committee materials, committee members deliberately rejected language requiring distinctions between ultimate facts and conclusions of law.  Marcus points to post-promulgation statements by Charles Clark, the committee reporter and the driving force behind Rule 8, that conflict with the decisions in Twombly and Iqbal.  Namely, when Clark was a Second Circuit judge, he accepted pleading language similar to that used in Twombly for an almost identical antitrust claim, stating that he thought Conley was a well-decided case.  Relying on his argument that dependable post-promulgation statements by certain influential rulemakers should be taken into consideration, Marcus argues that the Supreme Court in Iqbal should have consulted these statements, which Clark made after the pleading regime had been in place and scrutinized for two decades.  It would have been easy for him to distance himself from what might have been the original intent, but he did not.

Further, Marcus argues that the committee materials do not contain any evidence of a desire for Rule 8 to serve as a means to “screen” out frivolous cases.  In fact, the committee emphasized other rules that would serve that function.  This again conflicts with the Court’s interpretation Twombly and Iqbal, which both raises the specter of frivolous claims and the abuse of the discovery process.  Finally, Marcus argues that the rulemaker-primacy and functional-relationship canons of construction should have required the Court in Twombly and Iqbal to defer to the committee process and refrain from interpreting the bounds of Rule 8 itself.

By staking out a defensible and pragmatic approach to rule interpretation in this article, Marcus creates a mechanism with which to measure the work of judges in interpreting the Federal Rules of Civil Procedure.  As he states, we may not always agree about the best ultimate interpretation of particular rules, but we should be able to agree on a standardized approach to that interpretation.  We are proceduralists after all, and thus know that process often, if not always, matters more than substance.

1. Marcus discusses and differentiates the two main articles in this area:  Catherine T. Struve, The Paradox of Delegation:  Interpreting the Federal Rules of Civil Procedure, 150 U. Pa. L. Rev. 1099 (2002) and Karen Nelson Moore, The Supreme Court’s Role in Interpreting the Federal Rules of Civil Procedure, 44 Hastings L. J. 103 (1993).

A Modest Proposal on Preservation

Feb 27, 2012 Lonny Hoffman

Lonny Hoffman

William Hubbard’s Preservation Under the Federal Rules: Accounting for the Fog, the Pyramid, and the Sombrero is an elegant, important, and provocative argument about what the Federal Rules of Civil Procedure should say about duties to preserve documents and electronically stored information. And it could not be timelier. The Judicial Conference’s Civil Rules Advisory Committee is actively considering rules that, for the first time, would expressly address preservation obligations and the consequences of not doing so. This effort is driven by a perception that—at least for a small percentage of the federal caseload—preservation burdens have contributed to spiraling costs in civil cases. Hubbard joins a distinguished list of authors who have written about preservation issues, but his paper seemed to attract the attention of a number of rulemakers at the Civil Rules Advisory Committee’s most recent meeting in November 2011.

Many have argued that the current Federal Rules, which are mostly silent on preservation obligations, need to be revised to expressly address preservation issues. As for what a federal preservation rule would look like, discussions have largely centered on three main questions: trigger (when does the duty to preserve arise), scope (what types and sources of information should be subject to preservation) and sanctions (what are the consequences of failing to preserve). Hubbard offers policy suggestions for all three.

Hubbard begins by pointing to a familiar reality about preservation duties: when they arise before a lawsuit has been brought, they are being imposed in the “fog of litigation,” which is to say that they are imposed at a time of great uncertainty. Will the dispute result in a lawsuit and, if so, when? Who will bring it, against whom, and what claims and subject matter will it concern? It is very hard, Hubbard observes, to anticipate what documents ultimately may be relevant to a later-filed case. Additionally, he points out that before litigation has commenced there is no judge to tell the relevant parties you should keep this or you don’t need to preserve that. Of course, litigation-related judgment calls often must be made before suit based on incomplete information. For Hubbard, though, the lack of pre-litigation judicial guidance carries a particular consequence as it pertains to preservation duties. Because what is relevant isn’t clear—at least not entirely clear—before litigation has commenced, Hubbard argues that the unavoidable result of pre-litigation preservation obligations is that those with potentially relevant documents in their possession feel compelled to over-preserve, fearing that hindsight sanctions may result.

Hubbard argues that over-preservation is generally a bad thing because most documents that are preserved do not end up being relevant in litigation. This is both an empirical assertion, for which there is some supporting prior data (Hubbard is separately engaged in a project to gather additional data), and a normative claim, which he largely bases on efficiency. Given these concerns, Hubbard argues that a federal rule should trigger the duty to preserve only after federal litigation has commenced. Hubbard argues that comity considerations provide an additional reason why federal rulemakers should not try to regulate pre-litigation conduct. Although others have argued that the Rules Enabling Act does not allow for a Federal Rule that would govern pre-litigation conduct, Hubbard assiduously avoids taking a position on that question. His point, instead, is that even if federal courts have the power to impose pre-litigation preservation obligations, the better course for federal rulemakers is not to overreach; otherwise, prospective parties will feel compelled to follow a federal pre-litigation preservation rule even though the odds are slim that the dispute will end up in federal court.

Hubbard recognizes that some may object that triggering the preservation obligation at the commencement of federal litigation will entice bad actors to destroy relevant evidence during the period before filing. He responds by distinguishing between the duty to preserve and the duty not to spoliate. The duty to preserve is an affirmative duty, Hubbard argues, that requires parties to deviate from their usual practices in order to preserve evidence—much of which will not be material or relevant. The duty not to spoliate, on the other hand, is a negative command—don’t destroy a particular piece of relevant evidence. Unlike the affirmative duty to preserve, where costs and benefits usually run in opposite directions, “the genius of the duty not to spoliate is that rather than pitting cost savings against fact-finding benefits, it aligns the interest in cost savings with the interest in fact finding: it calls on individuals and companies not to change their usual activities.” (P. 18.)

Hubbard’s second prescription is that a rule ought to provide that no adverse inferences should be drawn merely from the failure to preserve. Under current case law, an intent to spoliate sometimes can be inferred merely from the fact that preservation was not done before litigation. Hubbard favors a rule that would only impose sanctions “upon proof of a guilty state of mind.” (P. 26.) He distinguishes between mens rea in fact and an inference of bad faith merely from the decision not to preserve data in the ordinary course of business.

Hubbard’s third recommendation concerns the scope of the preservation obligation. He argues that as long as the default condition is over-preservation—which is to say, keep anything that could possibly be relevant to a future case—the party seeking preservation of documents in someone else’s possession has little incentive to negotiate. This is most true, Hubbard points out, when there is an imbalance in information between the parties (where one side bears most of the preservation burdens). Given how current rules disincentivize negotiation, Hubbard would restrict the scope of preservation by imposing a presumptive limit on the number of custodians subject to a preservation obligation. With this presumptive limit in place, parties would then have incentive to negotiate if they think it should be more or less

Overall, Hubbard’s normative claims are bold, and my guess is that readers are likely to either strongly agree or strongly disagree with his analysis and policy prescriptions. Supporters will see this paper as the kind of thoughtful and persuasive analysis that could convince rulemakers to limit preservation obligations regarding trigger, sanctions, and scope along the lines he lays out. Critics are likely to question his concerns about over-preservation, especially as compared to the consequences of under-preservation—the loss of evidence and the resulting effect on the ability of aggrieved parties to obtain judicial redress. The need for preservation may be particularly important with respect to corporations and other non-natural entities. One can access all of a person’s memory—through a deposition, say—but there is no comparable access to corporate memory. Even with the ability to depose corporate representatives, a document preservation requirement arguably has a role to play as to organizational entities that is important and unique. Some may also challenge Hubbard’s assertions about how uncertainty impacts pretrial preservation decisions. More centrally, concern may be raised over his reliance on spoliation rules that punish only the willful destruction of relevant evidence. Such a sanctions regime would provide no remedy for negligent failures to preserve relevant information, not even curative orders designed not to punish but rather to restore the other party to the position they might have been in had the negligent act not occurred.

Still, while Hubbard’s argument is not likely to convince everyone, it is an elegant, important, and provocative argument. In other words, Preservation Under the Federal Rules is a “must read” for anyone interested in civil justice reform.

Access to Courts and the Democratic Order

Jan 30, 2012 Jay Tidmarsh

Jay Tidmarsh

In this comment on the Supreme Court’s October 2010 Term, Judith Resnik links together three cases – two of them among the Term’s blockbusters and a third that traveled beneath the radar screen – to explore issues of access to courts in modern America.  The blockbusters – AT&T Mobility LLC v. Concepcion, and Wal-Mart Stores, Inc. v. Dukes– have evident connections, as a host of commentators have already noted (and undoubtedly will continue to note in myriad forthcoming articles).  Concepcion held that the Federal Arbitration Act preempts a court’s ability to invalidate as unconscionable under state law consumer-contract clauses that required consumers to waive the right to obtain classwide arbitration.  Wal-Mart held that a class composed of female employees (perhaps as many as three million in total) could not be certified under Federal Rule of Civil Procedure 23.  In adopting constrictive views of Rule 23(a)’s “commonality” element and Rule 23(b)(2)’s injunctive-class-action element, Wal-Mart reduced the scope of federal class actions. But its holdings or dicta on a number of other points – requiring a “rigorous analysis” of Rule 23’s elements, suggesting a need for opt-out rights whenever class members seek monetary relief, and crushing the use of sampling methods to prove individual class members’ damages – have contributed equally to a sense that the Court has sounded the death knell for class actions.

Although too melodramatic a take-away from either Concepcion or Wal-Mart, the death-knell concern fits neatly into a storyline that has been building since the Class Action Fairness Act of 2005, as well as two cases in the October 2009 Term (Shady Grove Orthopedic Assocs. v. Allstate Insurance Co., and Stolt-Nielsen S. A. v. AnimalFeeds International Corp.): federal courts are exercising increasing control over the availability of class actions, whether in court or in arbitration.  And that storyline feeds into the larger storyline of an anti-consumer, anti-employee, pro-business Roberts Court.

The third case on which Professor Resnik focuses – Turner v. Rogers – does not fit this storyline, and requires a reframing of the issue.  Turner involved a noncustodial father jailed for a year for civil contempt as a result of his failure to pay child support.  The case was brought by the child’s mother and Turner appeared at the hearing without a lawyer.  Very quickly – the proceeding was short and pro forma – he was found in contempt and trundled off to prison, without any finding that Turner could pay child support.  The Supreme Court rejected Turner’s argument that he had a due process right to a lawyer – a “civil Gideon” claim – when the mother was also unrepresented.  But it held that, before the judge confined Turner, the Due Process Clause required the judge to adopt a process that “assures a fundamentally fair determination” that Turner had the ability to pay.  Such a process may include notice to Turner of the contempt hearing’s central issue (his ability to pay) and the entry of a finding that Turner could pay. Turner does not focus on whether plaintiffs may have a day in court as an actual matter (as in Concepcion) or as a practical matter (as in Wal-Mart).  Turner, a defendant, had his day (or at least his five minutes) in court, but he was poorly equipped for it.

In this regard, the three cases share a common concern.  As a practical matter, left to their own devices, none of the aggrieved parties – the Concepcions, Dukes, and Turner – could afford a lawyer to handle their individual claims.  For the Concepcions and Dukes, it was a simple matter of economics; their individual claims lacked sufficient value to attract a lawyer.  For Turner, it was a matter of even simpler economics; he didn’t have the money to pay a lawyer.  The solution for the Concepcions and Dukes was to bundle their claims with those who were similarly situated in a class action – a solution that left them with something less than the ideal of an individually attentive lawyer, but with more than a completely unvindicated right.  The solution for Turner was to demand that the State of South Carolina provide him with a lawyer free of charge.  In all three cases, the Court rejected the solution, and all three sets of parties found their access to the courts constrained in ways harmful to their claimed rights.  But is this a problem about which the legal system should worry?

Resnik’s layered and nuanced analysis examines this question through numerous lenses.  The first is the meaning (or rather, as she discusses, the many meanings) of the Due Process Clause.  She demonstrates that, as a constitutional ideal, “procedural due process” has sprung up during the past century and now encompasses several dimensions: fair procedures, leveling of asymmetrical litigant resources, treating like litigants alike, easing access to courts, and (perhaps) public participation in adjudication.  Complicating matters is the fact that, on each of these views of what process is due, there are different possible positions. And, to make matters even more complex, the competing positions are supported by different underlying theories of fair process, such as efficiency, accuracy, historical fidelity, and avoidance of arbitrary governmental action.

Second, she examines the issues from an institutional perspective.  She demonstrates that overburdened courts have had difficulty providing the individualized access that due process demands as an ideal (even if not as a constitutional) matter.  Moreover, high-quality legal talent is skewed toward high-profile courts such as the Supreme Court rather than toward the courts of first instance.

Third, she considers the matter historically.  As she points out, each of the claims the parties asserted or defended against arose in the twentieth century, thus requiring courts to graft eighteenth-century ideals of open courts and fair process onto new expectations of human dignity and value.

Finally, she injects into the equation the relationship between the ancient institution of courts and the more recent rise of modern democracy.  She suggests that courts’ inability or unwillingness to enforce legislatively created rights threatens the democratic legitimacy of courts and simultaneously curtails courts’ unique contribution to democracy, which she argues is “their structural insistence on participatory parity and their due process practices of according equality and dignity to those before them.”

The access-to-courts question on which Professor Resnik focuses should be the central civil-justice issue of our day.  It is no criticism of the comment that it offers less in the way of prescription than description.  There are no easy answers.  Professor Resnik correctly recognizes the problem of pat solutions; not allowing parties like the Concepcions or Dukes to aggregate their cases can create unfairness, but aggregating cases can create different issues of unfairness.  Likewise, the benefits of open access to courts must be balanced against the risk that some parties will strategically exploit their opponents.  At the same time, Professor Resnik’s skepticism of the resolutions in all three cases comes through.  The goals of providing access, affirming the dignity and equality of all, and situating the courts properly in the democratic order are badly served when the Court erects barriers around the adjudicatory system.  What seems to be needed – and what the three cases lack – is the imagination to confront presently intractable problems of access with promising ideas that may show the way forward.

Procedural Values and the Mechanics of Federal Appeals

Dec 21, 2011 Kevin C. Walsh

Kevin C. Walsh

Some federal judges think that they do not have much to learn from legal academics. At the very least, though, perhaps these judges could learn from legal academics some fruitful ways to learn from other judges. A good start down that road could begin with a recent article by Marin Levy, The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, in the Duke Law Journal.

In Mechanics, Levy offers a descriptive, analytical, and normative examination of case management practices in the federal circuit courts of appeals. These practices guide determinations about, among other things, “whether a case will receive oral argument or be decided solely on the briefs, whether its disposition will be drafted by judges and their law clerks or by staff attorneys, and whether it will be resolved by a published opinion or an unpublished, non-binding order.” Levy describes significant variations in these and other case management practices among the circuits that she has studied in depth. (P. 317.) For example, staff attorneys are heavily involved in screening cases for oral argument in the D.C., First, and Fourth Circuits, but “play almost no role in screening” in the Second and Third Circuits. (P. 339.) To pick another example, in the Fourth Circuit, only 13.1% of cases terminated on the merits have oral argument, whereas close to half of all such cases in the D.C. Circuit receive hearings. (Pp. 359-60.)

The Federal Judicial Center has gathered some of the types of information that Levy presents, although its latest study is over a decade old. Much has changed in that time, Levy observes, and there are limits on what the FJC can do. Levy nevertheless calls on the FJC to take a more active role in gathering and sharing information on case management practices. To be sure, though, circuit judges are not all of one mind about the desirability of shining a light on their courts’ management practices. Levy observes that “several judges have said that it would be helpful to learn of the practices of other courts,” which can provide “[t]he opportunity to learn of a useful or efficient practice that can then be emulated in one’s own court.” (P. 385.) But Levy also tells of a judge who, shortly after joining the bench, shared with another judge her interest in learning more about the case management practices of the other circuits, only to be told “not to bother” because each circuit was already convinced about the comparative desirability of its practices. (P. 376.)

Levy’s analysis of the causes of disuniformity in case management practices points not only to the differences in caseload and type of appeals that one would expect, but also to differences in norms and culture in the circuits that she studied. She recognizes that it is difficult to identify the underlying values of a given circuit from its case management practices. But her interviews certainly suggest variation in the weight ascribed to differing values such as collegiality, legitimacy, the appearance of legitimacy, efficiency, and fairness. Turning to a normative assessment of the disuniformity she has identified, Levy offers several powerful examples (relating to the treatment of immigration appeals and to the treatment of pro se appeals) to suggest that “total uniformity may be impossible to achieve, and attempts to achieve it will often prove too costly.” (P. 382.) With practical constraints duly noted, Levy argues that disuniformity in case management is more difficult to accept the more that it is attributable to differences in values across the circuits. “In simplified terms,” Levy writes, “it might become difficult to accept the divergent case management practices of the Second and Fourth Circuits, for example, if the Second Circuit were being driven by the value of perceived legitimacy and the Fourth Circuit were being driven by the value of efficiency.” (P. 383.)

This portion of Levy’s analysis ends with a promise for “[f]uture normative work, building on the qualitative and explanatory accounts” offered in this article (P. 383.) The prospect is promising indeed. As Levy notes near the end of the article, “case management practices are currently so opaque, [that] few people even have a basis for evaluating them.” (P. 389.) Levy is already one of those few, but thanks to Mechanics, the number can increase.

Judicial Specialization and the Functional Case for Non-Article III Courts

Nov 4, 2011 Steve Vladeck

Steve Vladeck

As is abundantly clear from the Supreme Court’s June 2011 decision in Stern v. Marshall, the debate over the propriety of non-Article III federal adjudication tends to reduce to the classical divide between separation-of-powers formalists and functionalists. Thus, Chief Justice Roberts’s opinion for the 5-4 majority, in the course of holding that non-Article III bankruptcy courts could not constitutionally exercise jurisdiction over certain kinds of state-law counterclaims, repeatedly trumpeted the need zealously to protect Article III prerogatives from even the smallest encroachment. In contrast, Justice Breyer’s dissent harped on the real-world efficiency that such adjudication promoted, criticizing the majority for failing to appreciate how much its decision would likely slow down (and further complicate) bankruptcy litigation by requiring the intervention of district courts before final judgment in a far greater number of cases. As Breyer explained, “a constitutionally required game of jurisdictional ping-pong between courts would lead to inefficiency, increased cost, delay, and needless additional suffering among those faced with bankruptcy.”

For those, like Justice Breyer, who are taken by the functional case for non-Article III adjudication, Lawrence Baum’s new book, Specializing the Courts, couldn’t come at a better time. Indeed, although Baum’s monograph consciously sidesteps the debate over the constitutionality of non-Article III adjudication, there are obvious—if not compelling—parallels between his comprehensive treatment of the causes and consequences (and pros and cons) of judicial specialization and the functional case for at least most non-Article III federal courts.

As Professor Baum explains, it is inapt to distinguish between “generalist” and “specialist” courts. Instead, Baum suggests that there are two axes of specialization: “Judge concentration” and “case concentration.” (P. 7.) The former occurs when individual judges focus all of their work on a specific set of cases with limited substantive range; the latter occurs when cases in a particular field are assigned to a limited number of judges. So, for example, bankruptcy courts have high judge concentration, but low case concentration, since bankruptcy judges only hear bankruptcy cases, and yet the substantive range of legal questions they confront therein is remarkably broad. On the flip side, the Foreign Intelligence Surveillance Court (FISC) has low judge concentration but high case concentration, since its judges only devote a small chunk of their time to hearing FISA applications, but every FISA application must go before the FISC.

The utility of breaking out the different forms of judicial specialization in this manner comes in Baum’s comprehensive assessment of the causes and consequences of judicial specialization, which embraces a far wider class of cases than we might otherwise have thought existed. As he suggests, different motivations explain why policymakers might opt for higher judge concentration as compared to higher case concentration, and vice-versa. The bulk of his monograph is devoted to a study of the different causes and consequences of specialization in four major fields: foreign policy and internal security; criminal cases; government-involved economic litigation; and private economic litigation. Separate from the normative conclusions Baum draws from these studies, merely putting all these examples together into one condensed volume is an immensely useful contribution to existing literature.

But the real gem of Baum’s volume is chapter seven, when he turns to the lessons learned from the examples that the heart of the book surveyed. For example, with regard to the causes of specialization, Baum concludes that the motive that has had the greatest impact on the creation of specialized courts is “an interest in shaping the substance of judicial policy.” (P. 207.) Yet “[o]fficials in the three branches do not regularly consider whether their goals would be advanced by increasing or decreasing the level of specialization in each field of policy.” (P. 210.)  Moreover, Baum suggests that “[d]iffusion has played a major part in the growth of judicial specialization,” such that the existence of some specialization has often been one of the principle justifications for additional specialization. This all leads to perhaps the most significant—if unsurprising—conclusion concerning the causes of specialization, i.e., that “judicial specialization has been a byproduct of other goals rather than an end in itself.” (P. 213.)

As for the consequences, Baum argues that “the effect of judicial specialization . . . [is] contingent both on the form that specialization takes and on other attributes of specialized courts and the situations in which they operate.” (P. 218.) Thus, Baum identifies three conditions that “foster the impact of judicial specialization on the substance of policy” (P. 221.): the selection of judges “whose own attitudes give them a commitment to a particular policy orientation”; “the existence of strong incentives for judges to lean in favor of one side in a field rather than its competitor,” which are more prevalent where there has been judicial specialization; and the “bundling of specialization with other provisions that favor the desired policies,” that is, where the creation of the judicial specialization comes part-and-parcel with new substantive policies that appear designed to effectuate a particular outcome. (P. 225.) When various combinations of these three conditions are present, Baum concludes, judicial specialization, whether for better or worse, is more likely to achieve its goals.

Professor Baum is hardly the first to tackle the subject of judicial specialization. But beyond its accessibility and readability, Baum’s volume makes a significant contribution to the literature in at least two distinct respects. First, “no study has considered the sources and growth of specialization as general phenomena.” (P. 27.) Instead, most prior work has focused on particular examples of judicial specialization in the federal and state levels, ranging from studies of the work of the U.S. Court of Appeals for the Federal Circuit and the Tax Court to normative or empirical analyses of “problem-solving” state courts, such as drug courts, homeless courts, and so on. Baum’s monograph is unique as a systematic attempt to gauge comprehensively both the causes and consequences of judicial specialization. As a result, his analysis is not specific to any particular example or even to specialization at the federal vs. state levels.

Second, Baum’s volume is significant to the extent it allows us to aggregate the causes and consequences of judicial specialization. Although there may be separate functional justifications for different kinds of specialized judges and/or courts, Baum’s volume should empower those who would seek categorically to argue for or against the merits of judicial specialization to cover the subject with one brush.

The harder question, which Baum himself assiduously avoids, is how the merits of judicial specialization dovetail with the legal constraints on such adjudication. But given the well-documented difficulties of applying formalist methodology to the question of non-Article III adjudication, Baum’s volume may have a lot to say about the pros and cons of the functional case for non-Article III courts in general, and the bankruptcy courts in particular. In that vein, consider Justice Breyer’s dissent in Stern, which argued that one of the critical factors to consider in deciding when non-Article III adjudication would be appropriate is “the nature and importance of the legislative purpose served by the grant of adjudicatory authority to a tribunal with judges who lack Article III’s tenure and compensation protections.” Allowing bankruptcy courts to adjudicate “core” state-law counterclaims, Breyer wrote, “plays a critical role in Congress’ constitutionally based effort to create an efficient, effective federal bankruptcy system.”

But Breyer’s dissent fails to articulate a key point on which Baum’s volume harps: the efficiency of allowing bankruptcy courts to resolve “core” state-law counterclaims only follows from the efficiency of allowing bankruptcy courts to resolve core federal bankruptcy claims in the first instance. For those who believe that functional considerations should enter into play, Baum’s book should remind us that the real questions to ask in these cases are (1) what the legislature’s goal was in creating the judicial specialization at issue; (2) whether the relevant expansion of adjudicatory power is necessary to vindicate that goal; and (3) whether judicial specialization is ultimately preferable to allowing similar disputes to be resolved by generalists. If those are the relevant inquiries, then Justice Breyer’s analysis seems at least somewhat incomplete.

More generally, Baum’s book may speak to those who have, quite legitimately, critiqued current jurisprudence for failing to articulate coherent principles. Justice Scalia’s Stern concurrence, for example, complained that “something is seriously amiss with our jurisprudence in this area,” noting that “[t]he sheer surfeit of factors that the Court was required to consider . . . seem to have entered our jurisprudence almost randomly.”

Baum’s splendidly concise volume should be useful to all students of the courts, whether political scientists or lawyers, judges or academics. But those who seek a more coherent theory on which to predicate the values (and, perhaps, constitutionality) of non-Article III federal courts may find in particular that Baum’s book could lead the way.

Rethinking Jurisdictionality

Oct 24, 2011 James E. Pfander2 comments

James E. Pfander

I recall quite clearly when, as a rookie law professor some years back, it occurred to me to wonder why we accorded so much weight to questions of jurisdiction. What was so special about making sure the amount in controversy really exceeded the statutory threshold or that the citizens, apparently from different states, were really so? Why regard jurisdiction as an especially favored defense; one that the courts must raise on their own motion and that the parties may mount at any time, even for the first time on appeal or when they have consented to the court’s jurisdiction or have invoked it themselves?  What about the well-known waste of resources associated with jurisdictional failure? In my search for better understanding, I approached a senior colleague who explained that some things were just too well settled to question. After kicking the issue around for a while, I moved on to another project, concluding that jurisdiction was (as Mark Twain reportedly observed) too various for me.

Happily, at least for those who (like me) enjoy a good jurisdictional puzzle, others have decided to tackle the varieties of jurisdictional experience. In fact, over the past ten years or so, a group of mostly junior scholars have done much to broaden our understanding of the nature of jurisdiction. Instead of thinking of jurisdiction as a monolith, as I did, these scholars have taught us to think of jurisdiction more as a bundle of sticks (to borrow that construct from our property colleagues). Jurisdiction may have a number of different legal characteristics and not all of them need to apply to all issues that touch the power or ability of a court to adjudicate a claim. Merits and jurisdiction, though placed in separate boxes by jurisdiction casebooks, often blend in practice.

Among the most productive assessments of jurisdictionality have come from Scott Dodson. In his Stanford Law Review article Mandatory Rules, Dodson demonstrated that many rules of law outside the jurisdictional box share features (such as non-waivability) in common with jurisdictional rules. He thus came to ask when should a rule simply be regarded as mandatory and when should it have the other characteristics that we associate with jurisdictional law, such as the requirement that courts raise the issue on their own motion. Applying this set of ideas to the familiar problem of state sovereign immunity, Dodson provides a useful way to organize our thinking about some of the arbitrary stops and starts that have come to characterize immunity law. While the Court has often treated all invocation of state sovereign immunity as jurisdictional, Dodson shows that the doctrine might be better regarded as a mandatory rule that the states may waive or forfeit either formally or through conduct in litigation.

Dodson has continued to interrogate the construct of jurisdiction in his forthcoming article in California Law Review, Hybridizing Jurisdiction.  There, he returns to his argument against the simple dichotomous view of jurisdictional and non-jurisdictional rules, urging instead a hybrid form of doctrine that would allow courts and parties to regulate jurisdiction (and thereby tame it to some degree).  Dodson’s approach provides a new set of conceptual possibilities (and new names to boot) with which lawyers and courts can begin to break down and better understand jurisdictional problems. Dodson gives us incorporated hybridization, linked hybridization, and indirect hybridization, the better to understand the way non-jurisdictional elements may usefully creep into jurisdictional doctrine. Whether his nomenclature will catch on remains to be seen, but he has a knack for framing the issues in a way that allows us to conduct a more nuanced analysis. For example, Dodson shows that jurisdiction often depends on the way courts find jurisdictional facts, but the adversary process and the complications of discovery often shape the factual record and influence the jurisdictional determination (thereby making it less purely jurisdictional). One appealing feature of the work is its generality: Dodson’s approach provides insights into such wide-ranging jurisdictional problems as the timing rules for appeals and the prudential aspects of mootness doctrine.

Dodson does not stand alone in his engagement with the elements of jurisdictionality. Much of the interest in the topic, in fact, has grown out the Court’s own attempt to offer a better account of the difference between jurisdictional rules and others. One oft-criticized case from 2007, Bowles v. Russell, woodenly insisted on treating time limits as a jurisdictional barrier to appellate review, despite the strong factual case for an equitable extension of the deadline that the lower courts had accepted. Other judicial decisions have attracted jurisdictional inquiries. In an earlier piece in the genre, Laura Fitzgerald posed the question, Is Jurisdiction Jurisdictional?, in connection with an assessment of the jurisdictional ideas reflected in the Rehnquist Court’s embrace of state sovereign immunity. Similarly, Evan Lee was moved to examine jurisdiction and the merits in reacting to the Supreme Court decision eliminating so-called hypothetical jurisdiction in Steel Co. v. Citizens for a Better Environment.

The work of these scholars suggests something of a revival of scholarly interest in the field of federal jurisdictional law, born of current legal controversies. I have sometimes speculated that the prison camp at Guantanamo Bay has done more to spark an interest in jurisdiction and the reach of habeas corpus than all of the brilliant outpourings of Hart and Wechsler. Inquiries into the nature of jurisdiction suggest that somewhat more mundane decisions can trigger scholarly engagement as well. Whatever its origins, the revival offers a lesson in the importance of youthful energy to vital scholarship. Almost by definition, new scholars must question and re-think the most basic assumptions of their field. In the case of jurisdictionality, the revisionist project has been a most fruitful one indeed. Dodson has been a careful and constructive reviser.

Juries and Emerging Democracies

Sep 30, 2011 Suja A. Thomas

Suja A. Thomas

One prevailing idea is that democracy, which fosters economic development, requires the rule of law. In other words, the rule of law will remedy the economic woes of emerging democracies. Another prevailing idea is that juries are antithetical to the rule of law. Because foreign companies are less likely to invest in a country with juries, which do not follow the law, emerging democracies should not establish juries. Brent White boldly questions both of these ideas in his article Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies.

White’s proposal comes at a time in the United States—the country with the most extensive jury trial right—when juries are in decline, with jury trials occurring in approximately only 2% of criminal cases and 1% of civil cases. So, you might ask, if juries do not seem necessary in an established democracy, why should juries be the answer in emerging democracies?

White uses Mongolia as a case study, including interviews that he conducted of people there, to support his conclusion in favor of juries. He first describes how the current extensive corruption in Mongolia—bribery pervades society, including every aspect of government—was caused in part by international “shock therapy.” After almost seventy years under Communist rule, Mongolia became a democracy in 1990 after the dissolution of the Soviet Union, which had provided significant monetary support to Mongolia.  International financial institutions (“IFs”) came to Mongolia and attempted to fill this gap. There were requirements, though. Shock therapy required countries, including Mongolia, to privatize and reduce the government’s size and power to receive aid. The result was less equality and more poverty than under Communist rule. Moreover, while corruption is often said to derive from the Soviet period, Mongolians reported that corruption became more widespread after the IFs came in. For example, in the aftermath of communism, when shares of publicly owned companies were quickly sold as demanded by the IFs, those in the know exploited others to acquire valuable assets to the result that a small percentage of the population became wealthy.

White goes on to describe the IFs’ attempt to promote the rule of law in Mongolia through the judiciary. But the IFs did not directly attack corruption in the judiciary—the seventh biggest bribe takers. To indirectly address corruption, the IFs worked on other reforms, including the establishment of the judiciary as a separate branch and as the ultimate authority to decide the law. But these reforms did not lead to the reduction of corruption. Indeed, problems continue to pervade the Mongolian judiciary, including a lack of transparency with few published decisions and a public perception that corruption by judges is widespread. All of this occurs with the support of IFs, which, White argues, provide computers and other building infrastructure, which legitimizes corruption.

White states that the problem in the judiciary is part of the larger societal acceptance that bribery is necessary in daily life. As White writes in a more recent essay, while Mongolians want less corruption, they “must survive in the society in which they live—and this frequently means disregarding the law.” And despite the existence of much legal behavior in the country, the negative rule of law myth remains that all actions are the result of improper, corrupt behavior.

With the lack of political will to address judicial corruption, the education of citizens has been promoted as a key component to the development of the rule of law. White criticizes the assumptions of such programs. Those assumptions—“first, rule of law is necessary for significant economic growth; second, rule of law is a prerequisite to democracy; and third, fostering a rule of law culture will plant the seeds for the actual rule of law in the future” (PP. 349-50)—lack empirical support. He explains that context is everything, because a country may not be able to follow the rule of law. Inequality, poverty, and corruption are all examples of impediments to the rule of law. And he cautions that the efforts to educate can replicate the negative rule of law myth that occurred when there was a significant difference between the Soviet government message and people’s lives.

Using Mongolia, White presents a very good argument that the importance of the rule of law to emerging democracies has been overstated. It would be helpful to hear more on why the rule of law more generally, as opposed to shock therapy specifically, is not the problem.  It also would be helpful to know whether Mongolia is not unique and thus is representative of other emerging democracies.

White ends by proposing that juries are a solution to the failure of the rule of law project.  He first points out studies that generally show that jury verdicts are supported by the evidence. He then emphasizes the positive roles that juries can play in emerging democracies. They can use nullification to fight against unjust laws, can reflect the values of a community, and can promote citizen participation. Moreover, juries can check judges’ corruption. Thus, contrary to popular thought, juries could indeed lead emerging democracies to the rule of law.

At a time when there are few proponents for the expansion of juries to other countries, White gives a fresh perspective on the importance of the jury, and he indirectly challenges the idea that the existence of juries will discourage investment. With such a provocative idea, it would be interesting to hear more about how White would respond to criticisms of the jury.

Through his discussion of emerging democracies, White can make us rethink the role of juries in the United States. Going back to my question of why juries are the answer in emerging democracies if they are not the answer in an established democracy, maybe we do not need juries once democracies are firmly established. If so, should the US discard them?  The opposite conclusion could be that given the rule of law myth in the US, juries continue to be important here.