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A Step Toward a Proper Understanding of Constitutional Litigation

Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. __ (forthcoming 2018), available at SSRN.

Everyone—public, media, government officials, courts, and first-year law students—understands constitutional litigation in light of two ideas. From Marbury v. Madison’s declaration that it is “emphatically the province and duty of the Judicial Department to say what the law is,” everyone believes that the Supreme Court gets the final, uncontestable word on what the Constitution says and means. And a court exercising judicial review “strikes down” or “sets aside” or “invalidates” unconstitutional laws, rendering them null and void for all purposes, erased from existence, as if never enacted and no longer available as “law.”

In a new article, Jonathan Mitchell labels this the “writ-of-erasure fallacy,” the erroneous “assumption that a judicial pronouncement of unconstitutionality has cancelled or blotted out a duly enacted statute, erasing that law from the books, vetoing or suspending it and leaving nothing for the executive to enforce now or in the future.” In fact, judicial review is more limited. Having identified a law as constitutionally invalid, a court may decline to enforce that law in a particular case or it may enjoin executive officers from enforcing the law while the injunction remains in effect. But the statute continues to exist as law unless and until repealed by the enacting legislature. It is a fiction that courts “strike down” or “block” or “invalidate” statutes. That fiction creates misunderstandings about constitutional litigation and the effect of judicial rulings in constitutional cases. And that fiction unnecessarily limits the power of the executive to enforce still-existing law and of the legislature to enact new or amended laws.

Mitchell first traces the fallacy to the early days of the Constitution. One source is Convention debates over a proposed Council of Revision that would have given federal courts a genuine power to veto legislation as unconstitutional, preventing a proposed law from taking effect. Of course, the Council idea failed—and with it the power of the federal judiciary to strike laws from the books. Another source is the rhetoric of Marbury and its progeny, in which courts describe judicially disapproved statutes as “void” or “not law.” A third is the courts’ tendency to adhere to precedent; because courts are unlikely to overrule constitutional precedent, judicial disapproval of a statute in one case is regarded as permanent. Courts therefore refuse to enforce the statute (previously declared constitutionally infirm) in future litigation and enjoin threats or attempts at future enforcement. History shows, however, that the Court does overrule precedent at times, putting lie to the assumption that any judicial declaration of constitutional invalidity is permanent.

Mitchell then illustrates the nefarious effects of the writ-of-erasure fallacy in two doctrines. The first involves the Civil Rights Act of 1875, a late-Reconstruction statute that prohibited race discrimination in places of public accommodation. In The Civil Rights Cases, the Court held that Congress lacked the authority under § 5 of the Fourteenth Amendment to prohibit private racial discrimination, while treating the statute as void for all purposes. By purporting to “erase” the Act, however, the Court disabled its future uses, such as against discrimination on a train traveling in interstate commerce or against state-compelled racial segregation in Plessy v. Ferguson. As to the latter, Mitchell argues that the Court should have held that the 1875 Act, still extant as federal law, preempted the discriminatory state law.

The second nefarious effect is to overstate the effect of judicial injunctions. An injunction “simply forbids the named defendants to enforce the statute while the court’s order remains in place.” The injunction does not suspend or revoke the statute. And it does not shield those who violate the statute from future prosecutions or penalties should the injunction be dissolved or should the court overrule the underlying pronouncement of unconstitutionality. Mitchell analogizes an injunction to a President ordering his subordinates not to enforce a statute he believes is constitutionally invalid. Neither voids or strikes down the law, which remains on the books, presently unenforced but potentially enforceable.

Finally, Mitchell considers four doctrinal areas that would be altered by rejecting the writ-of-erasure fallacy; two are of present interest. One is the doctrine of standing in Establishment Clause cases in which plaintiffs claim injury from laws or regulations that by their words endorse religious beliefs or project a message of exclusion of those who do not adhere to those beliefs. The source of the constitutional injury in such cases purports to be the statute itself. But if the statute (as opposed to its actual or threatened enforcement) causes the injury, the only remedy is repeal or elimination of the statute. But a court cannot repeal a statute nor order a legislature to repeal a statute. That means no judicial order can redress the plaintiff’s injury, depriving her of standing in such cases. This doctrinal change would affect current debates over President Trump’s travel ban, as several plaintiffs are claiming injury from the existence of the executive order and its message of exclusion; standing becomes a problem in that litigation if a court cannot order the repeal of the executive order, the only remedy that would resolve the claimed injury.

A second doctrinal area involves the pre-clearance provisions of the Voting Rights Act of 1965 (VRA), which require certain “covered” (mostly Southern) jurisdictions to clear voting-related laws with the Department of Justice (DOJ) or a federal court. In Shelby County v. Holder, the Court held that the formula for defining covered jurisdictions was constitutionally invalid, such that covered jurisdictions could enact and implement voting-related laws without pre-clearance, something many jurisdictions have done since. But the pre-clearance provisions continue to exist as federal statutes and have not been repealed, erased, revoked, or amended. Shelby County means a covered jurisdiction can disregard the statutory pre-clearance regime without fear of a court enjoining their actions should DOJ attempt to stop it from implementing a non-precleared law. But, Mitchell argues, covered jurisdictions must recognize that the pre-clearance provisions remain as federal law, that a future Supreme Court could overrule Shelby County, and that any new, non-precleared voting-related measure could be challenged and found to violate a now-constitutionally valid VRA. Mitchell suggests that covered jurisdictions should continue submitting laws for pre-clearance, consistent with the VRA, unless and until the pre-clearance provisions are repealed—something that Shelby County did not achieve and that only Congress can do.

This article that I like lots furthers scholarly debates (to which I offer my contributions) about the proper scope and operation of constitutional litigation and constitutional remedies. There are many dimensions to this issue, and Mitchell does not address all of them. He does not specify whether the anti-suit injunctions courts are authorized to issue can prohibit enforcement of the challenged law as to the named plaintiffs (he acknowledges the injunction prohibits enforcement only by the named officials) or whether courts can issue universal/nationwide/”cosmic” injunctions prohibiting enforcement against all persons who might be subject to the law. Mitchell also identifies, but avoids, the debate between departmentalism and judicial supremacy. He need not resolve the debate, because even in a world of judicial supremacy, courts can repudiate prior constitutional pronouncements, empowering the political branches to resume enforcement of these statutes, including retroactively.

If we do resolve those debates in favor of departmentalism and particularized/non-universal injunctions, however, the political branches gain even more power than Mitchell suggests. Consider Shelby County and the VRA’s pre-clearance requirements. Mitchell allows that covered jurisdictions may encounter pre-clearance problems with new laws if a future Supreme Court overrules Shelby County and a future DOJ resumes enforcement. But if the point of Shelby County is that five members of the Supreme Court as it existed in 2013 believed the VRA’s coverage formula unconstitutional and the resulting injunction only prohibited DOJ from requiring Shelby County to obtain pre-clearance for changes to particular voting laws, then DOJ need not wait that long. It could continue demanding pre-clearance from other jurisdictions as to other voting laws, without violating the injunction. Of course, DOJ’s efforts in that direction will fail as soon as they reach court (whether through its action to enforce pre-clearance or a covered jurisdiction’s action to enjoin DOJ from enforcing pre-clearance); courts must follow Shelby County as precedent and find that pre-clearance is constitutionally defective and unenforceable as to the new laws enacted by the new covered jurisdiction.

But Mitchell’s insights into the operation of constitutional litigation and the nature of constitutional remedies maps how this process will play out and the additional steps required. He shows that it is richer and more complicated than the simplistic “the court struck the law down and it is gone forever” narrative in which we operate.

Mitchell’s paper is long and detailed, but wonderfully written and highly readable. It is a significant scholarly work that should change how we think and talk about judicial review and constitutional adjudication.

Cite as: Howard M. Wasserman, A Step Toward a Proper Understanding of Constitutional Litigation, JOTWELL (July 12, 2018) (reviewing Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. __ (forthcoming 2018), available at SSRN),

Hail to the Chief Justice

Jeffrey Rosen, William Howard Taft (2018).

A bellicose politician is on the warpath. His target: the judiciary. On the stump, he mocks individual judges by name and castigates their rulings. The courts, he declares, should not stand in the way of the needs of the public, much less the energetic executive committed to bringing those needs to fruition. Faced with a hostile Congress, a shortage of judges, and no traditional avenue for self-advocacy, the courts are poorly equipped to respond to these attacks on their own. They need a champion on the outside who can make a case against popular passion and for the rule of law.

The story feels conspicuously modern, but it dates back more than a century. The populist demagogue? Theodore Roosevelt. The champion of the judiciary and the rule of law? William Howard Taft.

Jeffrey Rosen’s new biography of Taft, part of the Times Books “American Presidents” series, is a well-timed salve for our unsettling era. As Rosen explains, unlike Roosevelt—and more recent Presidents—Taft embraced “a constitutional rather than a popular conception of the presidency,” and approached his executive responsibilities with a “judicial temperament.” He showed deep-seated respect for the constitutional prerogatives of the coordinate branches, deferring to Congress on legislative priorities and advocating for judicial independence. That reverence for the rule of law fueled Taft’s judicial career before and after his presidency, helping him to modernize the federal courts and bolster their legitimacy. Rosen’s book introduces us to a figure of dual importance: a humble, thoughtful, and constitutionally principled hero in the White House, and a transformative leader on the Supreme Court.

Taft is the only man to serve as both President and Chief Justice, the culmination of a lifetime of public service across two branches of government. The son and grandson of Ohio state judges, Taft was appointed to the Ohio Superior Court in 1887, at the age of twenty-nine. Two years later he became Solicitor General of the United States; three years after that, a judge on the Sixth Circuit. At the insistence of his wife, Nellie, Taft answered the call of politics, serving in rapid succession as Civil Governor of the Philippines, Secretary of War, Provisional Governor of Cuba, and, after the 1908 election, President of the United States.

Nellie reveled in the hurly-burly of political life and the material trappings of political success. Her husband, by contrast, was never fully comfortable in the political arena, where success increasingly depended on one’s willingness to blur constitutional boundaries. Roosevelt had ushered in a new presidential era, energetically introducing reforms without sweating the constitutional details. This greatly distressed Taft, who believed executive power was necessarily tempered by the limits of the Constitution and respect for the rule of law. For his presidency, Taft adopted a much more circumscribed view of his own powers. He approached Congress with “suggestions” on tariff reform, trust-busting, and environmental protection, but refused to interfere with Congress’s power to legislate. And far from bashing judges, he repeatedly stressed the importance of an independent judiciary, including it as a central theme in his inaugural address in 1909 and on the campaign trail in 1912.

Taft’s constitutional humility in the Oval Office proved too much for Roosevelt, who saw it as a virtual abdication of executive power. Their relationship quickly deteriorated, culminating in Roosevelt’s entry into the 1912 presidential election. Unable to draw attention away from Roosevelt’s dramatics and Woodrow Wilson’s message of economic reform, Taft finished a distant third, with only eight electoral votes.

Leaving the White House after electoral defeat might have depressed others, but it came as a relief to Taft. He had always been happier as a judge than as a politician. Moreover, his lifelong ambition—to be Chief Justice—remained within reach. For the next eight years, Taft worked to stay in the public eye (teaching at Yale, leading the ABA) while his allies lobbied successive presidents to place him in the center chair. Their tenacity paid off. In June 1921, Warren Harding nominated Taft to be Chief Justice. The Senate confirmed him the same day.

Taft’s second act as a chief executive was as lively and inspired as his first had been muted. The new Chief Justice encountered a federal court system that was heavily backlogged and under attack. Using his political skill and the prominence of his new office, Taft immediately set about improving the courts’ operations, public legitimacy, and institutional self-awareness. Free from the constitutional restrictions on lobbying that he had faced as President, Taft personally pressed Congress for legislation to modernize the federal court system. He procured more judges, ended the Supreme Court’s mandatory jurisdiction, advocated for judicial power to make procedural rules, secured funding for a freestanding Supreme Court building, and created the predecessor to the Judicial Conference of the United States. A century later, the federal courts still bear the stamp of Taft’s organizational genius.

Reflecting on these developments, Rosen observes that “Taft chafed as a judicial president and thrived as a presidential chief justice.” This is no contradiction, given that Taft was guided by respect for constitutional government and the rule of law in both executive and judicial life. Fealty to the design of the Constitution restricted Taft’s actions as President, and that same fealty energized him as head of the federal court system. And while Rosen portrays Taft’s devotion to these principles as near-religious at times, at no point does Taft’s commitment feel anything less than genuine, heartfelt, and sincere.

We could use a healthy dose of that commitment today. Our last two presidents have chosen to pursue their agendas largely through executive orders, agency regulations, and pointed political attacks, rather than engaging in the hard work of negotiating with Congress. A disquieting number of legislators and interest groups treat judges as politicians in robes and assail judicial nominees for the sin of having privately held opinions. And cynicism about lawmakers, law enforcement, and the law itself is growing. In an age in which the rule of law is increasingly equated with politics, power, and privilege, Taft’s lived experience and fidelity to deliberative democracy and constitutional government remind us that these ideals are worth defending.

The judiciary, too, can learn from Taft’s example. The Chief Justice was keenly aware that courts cannot function without public legitimacy—legitimacy that in our day (if not Taft’s) is rooted in transparency. Today’s federal courts, however, remain curiously uninterested in making their work broadly accessible to the general public. Electronic court documents hide behind the PACER paywall. The Judicial Conference recently shelved a successful pilot program for videotaping civil proceedings. And with rare exceptions, the Supreme Court will not release same-day audio of oral arguments, let alone allow video-recording. It is hard for the public to build confidence in the rule of law when it cannot readily observe the judicial process or the procedural safeguards that public adjudication provides. A modicum of transparency would yield disproportionately positive returns.

Sensing the moment, Rosen writes that “all three branches today are institutionally equipped, if they choose, to resist these populist threats and defend the rule of law.” Taft’s enduring example, and Rosen’s crisp and engaging depiction of it, remind us that the core values of American democracy remain within our civic grasp, if we allow ourselves to embrace them.

Cite as: Jordan Singer, Hail to the Chief Justice, JOTWELL (June 15, 2018) (reviewing Jeffrey Rosen, William Howard Taft (2018)),

Questions of Funding and Compensation on the 50th Anniversary of Modern Class Actions

The modern class action turned fifty last year in the United States, and this year celebrates a quarter-century in Ontario, the first English-speaking province in Canada to enact class action legislation. On these anniversaries, scholars on both sides of the border, and around the world, are taking stock of class actions. A common theme in many of these discussions is whether class actions are achieving their intended purpose. Specifically, do they result in adequate compensation for class members? Or is the temptation for self-interest among plaintiffs’ counsel so great that the interests of class members are inevitably subservient?

Important analyses on these and other critical questions, from doctrinal, comparative, and normative perspectives, are brought together in a special volume of Theoretical Inquiries in Law published in early 2018, entitled Fifty Years of Class Actions – A Global Perspective. Contributions by Elizabeth Chamblee Burch and Brian T. Fitzpatrick tackle the thorny question of compensation from the same starting point—that the entrepreneurial and representative nature of class actions creates risks for under-compensation of class members. They explore different aspects of the problem. Burch focuses on strengthening the role of objecting class members at the settlement approval hearing.  Fitzpatrick focuses on using private claims investment to reduce the risk that plaintiffs’ lawyers will settle for too little. Each contributes to an important discussion about the importance of fairly compensating the class.

Professor Burch begins from the premise that principal-agent problems persist in class proceedings, despite the statutorily prescribed function of the judge to protect the interests of the class. Many provisions in class action rules and statutes in the U.S. and other jurisdictions recognize the need to guard against attorney self-interest with court oversight: judicial approval of settlements; opt-out rights; the ability to object to a proposed settlement; and appeals. While the Subcommittee for Federal Rule of Civil Procedure 23 has recommended a number of proxies by which judges can better determine adequacy of settlement, all fall short because of an information deficit and adversarial void that hamper judges’ ability to maintain robust oversight. Burch focuses on the objection process as the most promising space in which to close the information gap. Identifying the rise of professional objectors (lawyers who routinely challenge settlements, at times simply to extract a nuisance payment from class counsel) as a phenomenon unique to American jurisdictions, she considers “how to encourage noble objectors that benefit class members while staving off those that namely seek rents of class counsel.”

She proposes a ‘leveling up’ of objectors. Sophisticated (and usually represented) objecting class members “can bring to light new information about structural conflicts of interest within the class or between class members and class counsel, as well as information about unfair outcomes.” Burch seeks to incentivize ‘good’ objectors from those who wish to extort money from class counsel. Even well-meaning objectors have no incentive to propose radical changes to a settlement, as fees are only paid if a settlement is approved. ‘Leveling up’ objections would require the public funding of non-profit groups to encourage the socially useful objector. Such funding might come from a self-funding mechanism. (Here, she draws inspiration from Ontario and Quebec; in both provinces, a non-profit organization provides funding for plaintiffs’ disbursements, and in the case of Quebec, legal fees, as well as an indemnity against adverse costs, for successful applicants. In exchange, a percentage of the class’ recovery is levied). If the political will to create a public funding entity is lacking, she suggests an ad hoc approach: judges can direct cy près awards to non-profit objectors. Whatever the source of funding, Burch persuasively argues that properly motivated and publicly funded objectors offer our best hope to ensure judges have the necessary information to monitor attorneys and the settlements they seek to have approved.

Fitzpatrick addresses the problem of suboptimal settlements by focusing on the economics of litigation for class counsel. Because plaintiffs’ attorneys currently bear all the risk for their clients and may be more risk-averse than the defendants, they may decide to settle too early for too little. Fitzpatrick turns to third-party litigation financing as a method to achieve risk-balancing gains: non-lawyer investors purchase some or all of the value of the class’ stake in the litigation in exchange for a percentage of any eventual recoveries. The risk of non-recovery is spread, if not wholly transferred, from class counsel to the funder. The economic theory is that a plaintiff will be less inclined to settle for less than the expected value of the claim, as it has already secured partial payment of the claim from the funder.

Thus far, financiers in the U.S. have avoided funding class actions for, among other reasons, the impossibility of contracting directly with each class member. Indeed, third-party class-action funding has effectively transformed Australia’s opt-out regime into an opt-in regime. The alternative exists in Canada, where judges can approve the payment of a portion of any judgment to the funder, just as they currently enforce a first charge on any recovery for the lawyers’ fee.

Fitzpatrick recognizes four main concerns about whether investing in class actions is socially desirable—fear of more litigation, longer cases, compounding agency costs, and skewing case selection either to only low risk actions or to high risk ones. He is able to succinctly address each concern in turn. An increase in meritorious claims is normatively unproblematic. Longer cases may in fact drive up compensation levels for class members. Agency costs can be addressed by contract (as they have been in Ontario). And, as an empirical matter, financing is unlikely to decrease the number of high probability, low risk cases, even if a marginal number of low probability cases are added. In the end, he concludes that the benefits outweigh perceived costs. In doing so, he contributes to the start of an important conversation both within and outside of the United States on diversifying the financing of entrepreneurial litigation.

The occasion of a milestone anniversary can be an impetus for thoughtful reflection, as well as inspiration for improvement. Burch’s and Fitzpatrick’s articles, as with all of the articles in this volume, make an important contribution to the study of class actions and their possible reform. Both scholars acknowledge the weaknesses of litigation that relies so extensively on economic incentives and risk (in)tolerance. While they aim to address those weaknesses by radically different means, they share a common goal: to secure meaningful justice for absent class members in whose name class actions are brought.

Jasminka Kalajdzic, Questions of Funding and Compensation on the 50th Anniversary of Modern Class Actions, JOTWELL (June 1 2018) (reviewing Elizabeth Chamblee Burch, Publicly Funded Objectors, 19 Theoretical Inquiries in Law 47 (2018); Brian T. Fitzpatrick, Can and Should the New Third-Party Litigation Financing Come to Class Actions?, 19 Theoretical Inquiries in Law 109 (2018)),…rn-class-actions/.

Human Rights Litigation and the States

Seth Davis and Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018).

It has been almost forty years since the Second Circuit’s landmark decision in Filártiga v. Peña-Irala, which opened the door to human rights litigation in U.S. federal courts under the Alien Tort Statute (ATS). That statute—a creature of the first Judiciary Act in 1789—authorizes federal subject-matter jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” ATS litigation flourished in the decades following Filártiga, but more recently the Supreme Court has imposed new obstacles. In Sosa, the Court limited the scope of the federal common law cause of action that allows plaintiffs to assert violations of international law under the ATS. In Kiobel, the Court imported a presumption against extraterritoriality into ATS litigation, requiring that such claims “touch and concern the territory of the United States . . . with sufficient force to displace the presumption.” And this Term, in Jesner v. Arab Bank, the Court immunized foreign corporations from liability under the ATS. (WNYC’s More Perfect released a terrific podcast on the ATS following the Jesner oral argument last October.)

If federal law and federal courts are less receptive to actions seeking remedies for human rights violations, what about the states? That is the crucial question that Seth Davis and Chris Whytock tackle in their excellent article. They persuasively argue that state courts and state law can play a role in this context, and that the Supreme Court’s restrictive decisions on questions of federal law do not automatically foreclose more sympathetic approaches at the state level.

A foundation of the authors’ arguments is that state law and state courts have a constitutionally recognized power to redress legal wrongs. The basic notion that where there is a legal right, there is also a legal remedy is the “normative core of a state’s interest in providing redress for the victims of human rights violations.” Davis and Whytock support this view with reference to state law, federal law, and international law, as well as broader political theories of corrective justice, social contract, and cosmopolitanism. Although they recognize that a remedy for human rights violations will not be available in every case, courts considering the proper role of state courts and state law must give due weight to a state’s interest in providing remedies. Their argument “shifts the ground of debate; what presumptively seemed a ‘foreign relations’ matter for the federal government alone now appears a remedial matter presumptively for state courts to decide.”

Davis and Whytock then turn to various court-access doctrines that might restrict state remedies for human rights violations. They argue against removal of state court lawsuits to federal court, criticizing in particular removal on the theory that such lawsuits implicate foreign policy concerns. Likewise, they critique the use of the political question doctrine to dismiss suits seeking redress for human rights violations. Davis and Whytock also address personal jurisdiction. Although they recognize that state courts may lack personal jurisdiction over some foreign defendants, they argue that suits based on human rights violations should not be subject to more rigorous scrutiny than suits based on other wrongs, and that a state’s interest in providing remedies for human rights violations strengthens the case that personal jurisdiction is reasonable. Finally, they discuss forum non conveniens, emphasizing that courts must take seriously the requirement that a dismissal is appropriate only when an adequate foreign forum exists. And even when a foreign system is an adequate alternative, a U.S. state’s interest in providing a remedy for human rights violations is a public-interest factor in favor of allowing a case to proceed in the plaintiff’s selected U.S. forum.

Davis and Whytock next examine substantive choice of law. They argue that under either the Second Restatement or interest analysis, courts must consider the forum state’s interest in redressing wrongs, including wrongs that violate human rights. In addition, the Supreme Court’s presumption against extraterritoriality with respect to federal law—and its application of that presumption in human rights cases—does not apply to state law. And they clarify that even when foreign law is chosen, that choice is not fatal if foreign law would provide a basis for the plaintiff’s claim.

Finally, they confront federal preemption. Considering both field and conflict preemption, they argue that preemption analysis should give substantial weight to the state’s interest in providing law for the redress of wrongs. As to states providing remedies for violations of international law, state courts are not preempted from concurrent jurisdiction over the admittedly narrow federal common law cause of action for enforcing customary international law (CIL) that the Supreme Court recognized in Sosa. Even a state-law right of action enforcing CIL more broadly than Sosa endorsed should not be categorically forbidden. The state’s interest must be taken into account, and “critics of state common law remedies for CIL have the burden of showing that foreign relations concerns leave little to no room for state remedial lawmaking.” They close with a discussion of state remedies for violations of treaty-based human rights. Although they recognize that the case for preemption may be stronger in this context, they reject the view that state courts will necessarily face the same limitations as federal courts.

Ultimately, the proper role of the states in human rights litigation is a question of default rules. There is little doubt that the federal government can take steps to block such litigation at the state level if it so chooses—as Davis and Whytock put it: “[w]here a state oversteps, creating an actual foreign relations conflict, the political branches . . . have no shortage of ways of responding.” So the real issue is what states can do when federal political institutions have not spoken with clarity. Davis and Whytock make a compelling case that the default position should not prohibit state-based remedies for violations of human rights.

Cite as: Adam N. Steinman, Human Rights Litigation and the States, JOTWELL (May 21, 2018) (reviewing Seth Davis and Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018)),

#MeToo Justice

Lesley Wexler, Jennifer Robbennolt & Colleen Murphy, #MeToo, Time’s Up, and Theories of Justice, available at SSRN.

Do we really need to hear more about #MeToo or have we reached the point of saturation? Given the subject of my review, it should come as no surprise that I think there is more to say. What might be a surprise, however, is that I also believe we are approaching saturation. Exhibit A is the backlash that is already in full swing. Overexposure could be bad for #MeToo, but I do not think it will be. The culture of harassment, abuse, and diminishment in which women have existed and continue to exist requires nothing short of a counter-saturation. I say bring it on.

This is where this important article by Lesley Wexler, Jennifer Robbennolt, and Colleen Murphy comes in. The authors interrogate what justice might look like for this historic movement. They conclude that the concept of transitional justice (with some nods to principles of restorative justice) holds great promise. While individualized justice is critical, the authors argue that #MeToo should also pursue and achieve systemic change. The authors land on transitional justice, but caution that its promise will be realized only if two things happen. It must include and address the most marginalized women, and it should take a holistic view of what types of changes will lead to societal transformation.

Tarana Burke started the #MeToo movement well before Harvey Weinstein headlines made their way into our collective consciousness. Burke focused her movement on women of color and marginalized people, with a goal of building community among survivors. It was not until a famous, white, cisgender woman—Alyssa Milano—asked Twitter users to share their stories of sexual harassment and assault using the #MeToo hashtag that the current iteration of the movement was born.

This genesis story is telling. While Milano credited Burke with the hashtag and the original movement, the real power differentials among women are apparent—the movement did not garner national attention until a privileged white woman did something. This lack of focus on intersectionality led to the immediate question of whether #MeToo could really change the status quo. Public shaming may have taken down Harvey Weinstein or Bill O’Reilly in the relative short term, and a (second) jury in our criminal justice system may have convicted Bill Cosby of aggravated assault against one of his many accusers. But what about women who lack the power or the opportunity to take on such giants? Moreover, what about the structures and systems that protected these men and so many others from a day of reckoning? The Time’s Up initiative, created by a group of Hollywood elite, has the potential to move beyond this initial step of calling out the behavior and shaming it. The question the authors wrestle with is how.

The authors first review restorative justice theory, which they define as “a loose collection of practices or mechanisms that share a number of core commitments,” focusing on “offender accountability, harm repair, and reintegration.” Apologies can often go wrong and seldom go right, as in cases in which those accused of sexual harassment blame the victims for being overly sensitive or thin-skinned. Although there are many possibilities for harm repair, such as community activities, therapy, public statements of accountability, and cessation of the behavior, the main remedy remains monetary damages. Unfortunately, women cannot seek money publicly or privately—they are criticized for doing so publicly and their voices are often silenced through non-disclosure agreements if they settle privately. There must be reintegration for both the victim and the perpetrator. While apologies and accountability are important first steps for offenders, the quickness with which some have been reintegrated into their communities and careers (think Mel Gibson) leads the authors to emphasize the primacy of full reintegration of victims.

After assessing how restorative justice values might apply to #MeToo, the authors turn their attention to transitional justice. Restorative justice tends to focus on the perpetrator and the victim, which, while critical, does not necessarily lead to systemic change. Transitional justice can link this individualized restorative response with institutional reform.

Transitional justice is defined as “a broad body of multidisciplinary scholarship and practice concentrating on responses to wrongdoing in contexts of transitions toward democracy and away from extended periods of conflict or repression.” The authors argue that the #MeToo movement is analogous to paradigmatic transitional justice in three important ways. Transitional justice focuses not on the isolated criminal acts, but instead on the “patterns of wrongdoing” that have been normalized. The patterns of wrongdoing occur within a broader background of “pervasive structural inequality.” Finally, the goal of transitional justice is explicit—it is to link the response of the individualized wrongs to the goal of broader institutional change.

Analogs to #MeToo are readily apparent. The focus of the movement is the normalized way in which women have been and are treated. That half a million people responded to the #MeToo call within twenty-four hours of Milano’s initial tweet is telling. The way women are treated is systemic, and women have adapted to endure it. Women around the world face obstacles to equality, and while the degree may vary, the fact of inequality between men and women cannot be denied. Finally, while the #MeToo movement has led some men to lose their jobs, with each resignation comes another attempt to minimize or downplay the scope of the issue. Harvey Weinstein is just one of few bad men, for example. Transitional justice forces a collective counter to these forms of denial while also forcing a recognition of the scope of the issue.

The authors acknowledge that the transitional justice with which we are most familiar—truth and reconciliation commissions in war-torn countries—differ from the #MeToo movement in important ways. But the ideas behind transitional justice still hold promise. The authors also do not commit to what form #MeToo transitional justice will take. Instead, they caution that any attempts must endeavor not just to acknowledge, but to actively include marginalized women, and they argue that the movement must take a holistic approach to the variable challenges that have surfaced.

For what it is worth—and as you might have already surmised—I am a proud feminist. As Chimamanda Ngozi Adichie expressed in 2014, we all really should be. Treating humans equally is not radical at all; treating humans differently based on gender is what should be horrifying to our society. The #MeToo movement is only beginning to chip away at this paradox, but with work along the lines of what Wexler, Robbennolt, and Murphy are producing, I am hopeful that significant change is possible.

Cite as: Brooke D. Coleman, #MeToo Justice, JOTWELL (May 7, 2018) (reviewing Lesley Wexler, Jennifer Robbennolt & Colleen Murphy, #MeToo, Time’s Up, and Theories of Justice, available at SSRN),

More Amicus Briefing?

Scott Dodson, Should the Rules Committees Have an Amicus Role?, 104 Va. L. Rev. 1 (2018).

JOTWELL readers do not need me to tell them that Scott Dodson is a leading voice in jurisdiction and procedure. His most recent article, as we have come to expect, meaningfully contributes to the contemporary discussion concerning the proper, and perhaps competing, roles for the Supreme Court and the Civil Rules Advisory Committee in interpreting the Federal Rules of Civil Procedure. Dodson calls for the Rules Committee to take a more active amicus curiae role in Civil Rules cases, suggesting that such an approach can substantially improve the reasoning and resolution of such cases without marginalizing the Court’s adjudicatory role.

Dodson succinctly lays out the current state of affairs in which the Court is largely divorced from the Civil Rules promulgation process, despite nominally overseeing it. This state of affairs has led to the current situation in which the Rules Committee takes exclusive ownership over the Rules drafting process, while the Court takes exclusive ownership over interpreting the Rules. As a result, the Court and the Rules Committee engage in their respective tasks without consulting the other.

Dodson aims to bridge this gap in Rules cases before the Court by way of amicus briefing. He suggests that in Civil Rules cases the Administrative Office of the United States Court’s Office of General Counsel should submit amicus briefing on behalf of the Rules Committee. He argues that such amicus briefing brings three broad advantages. First, it can apprise the Court of relevant legislative facts, such as discovery expenses or judicial-management issues, that inform the policy choices embedded in the Civil Rules. Second, it can alert the Court when the Committee itself is considering changes to the Civil Rule under review. And third, it could offer broader perspectives on how particular interpretations presented by the parties might affect other cases or other rules. Finally, Dodson thoughtfully considers numerous objections to his proposal, ranging from the Solicitor General’s amicus role to Rules Enabling Act concerns.

I find much to admire in Dodson’s piece. Indeed, I applaud Dodson’s strategy that replaces the Court’s overreliance on, as Kevin M. Clermont and Stephen C. Yeazell label it, “folk wisdom” in procedural cases with a properly developed set of legislative facts. I also welcome Dodson’s focus upon the Administrative Office’s General Counsel as an unbiased friend of the court, whose incentive structure links only to ensuring that the Court examines the Rules Committee’s past work and record.

As with any important article, Dodson’s paper leaves the reader wanting to explore the issue further. The value of Dodson’s amicus-briefing approach, which aims to highlight the Rules Committee’s past or ongoing work to the Court, is squarely on point in cases when the Court engages in expository, or interpretive, decision-making in an authentic search for the rule drafters’ legislative intent in Civil Rules cases. Thankfully, the Court regularly engages such Civil Rules cases.

As several scholars have noted, however, the Court does not always engage in a legislative-intent analysis in Civil Rules cases. It often deploys prescriptive, or non-interpretive, reasoning in its Civil Rules opinions, in a process that calls for weighing legislative facts, utilizing technical expertise, and making value judgments. One might label these opinions, which rely primarily upon such prescriptive reasoning as opposed to the drafters’ intent, “procedural policy-change cases.”

In procedural policy-change cases, the overwhelming value of a Rules Committee amicus brief seems less apparent. Take Twombly, for example. Commentators near-universally recognize it as a pronouncement regarding the policy underlying pleading requirements in federal court, not as an interpretation of Rule 8(a)(2)’s text. This is to say, the Twombly Court was not confused as to the original drafters’ intent regarding Rule 8(a)(2)—a problem remediable with additional information that a Rules Committee amicus could provide. The Court had issued Conley, which did consider that intent, decades earlier. Rather, the Twombly Court disagreed with the policy choices those drafters enacted. An amicus brief discussing the intent and purpose of Rule 8(a)(2) would not have changed the Court’s reasoning or conclusion.

Dodson and I share a commitment to Civil Rules cases steering the course closest to drafter intent. Dodson’s proposal furthers that goal because the Justices might be less likely to disregard a Rules Committee amicus brief that draws the Court’s attention to drafters’ intent. But in high profile procedural policy-change cases that Dodson discusses—such as Wal-Mart and Twombly—where the Court exercises its muscle to disagree with the Rules Committee’s policy decisions, we should not expect one amicus brief to turn that tide. Dodson’s strategy still brings the added benefit of laying bare the Court’s naked policy power play by offering a true contrast between the drafters’ intent and the Court’s opinion.

An additional area for continued consideration of Dodson’s amicus strategy involves the interdependent nature of the Civil Rules. Many of the pressing issues that the Court faces in procedural policy-change cases are not amenable to successful resolution by way of litigation. Twombly again offers a key example. Many, including Robert Bone, conclude that the Twombly Court was properly concerned with explosive discovery costs in antitrust cases, but that a narrower remedy, such as a Committee proposal for an early motion for summary judgment in complex cases, presented the better solution.

But the Court lacks the power to craft such new rules. It also lacks the power to make coordinated changes to portions of a Rule not under review. For example, only the Rules Committee could create a safe-harbor provision in Rule 11 as part of its revisions to the Rule in the aftermath of the Pavelic & LeFlore opinion, which held that entire law firms could not be sanctioned under Rule 11. These are structural dynamics inherent in the divisions of power between the Court and the Rules Committee. Dodson does not suggest that an amicus brief, from any entity, could overcome this hurdle. Rather, I raise the point to highlight that many of the ills in the Court’s Civil Rules jurisprudence result not from poor information gathering, a problem that Dodson’s strategy readily resolves, but from institutional design, a defect Dodson’s strategy does not address nor did it intend to. Good ideas need not resolve every conceivable difficulty.

The Court often wades into procedural policy-change cases woefully under-informed. Dodson’s amicus briefing proposal would be of immense value in numerous cases. His approach is not a panacea, nor does he advertise it as such. As Bone has noted, the Civil Rules are “interdependent.” Procedural policy-change cases (i.e., the headline-making cases that we care about most) almost always require multiple and simultaneous rule amendments that are “tightly coordinated.” Only the Rules Committee wields this type of drafting power.

I hope you will read Dodson’s article soon. I am confident you will find it as stimulating and thought-provoking as I have.

Cite as: Lumen N. Mulligan, More Amicus Briefing?, JOTWELL (April 23, 2018) (reviewing Scott Dodson, Should the Rules Committees Have an Amicus Role?, 104 Va. L. Rev. 1 (2018)),

Take Down the List

Miguel de Figueiredo, Alexandra D. Lahav & Peter Siegelman, Against Judicial Accountability: Evidence From the Six Month List (revised 2018), available at SSRN.

Are judges motivated by incentives? A recent study by Miguel de Figueiredo, Alexandra D. Lahav, and Peter Siegelman concludes that they can be and shows much more. Nancy Gertner, a former judge and currently a Senior Lecturer at Harvard Law School, suggested the research. Gertner was concerned that the so-called Six Month List causes judges to engage in actions that they otherwise would not take—such as dismissing cases. The List requires the Administrative Office of the United States Courts to report motions pending before federal district judges for more than six months and cases pending for more than three years. Some time ago, after I gave a talk on summary judgment, a judge stated a belief similar to Gertner’s that judges dismiss cases on summary judgment because of administrative deadlines.

We should be concerned about what these judges are saying. Thankfully, the authors have carefully analyzed this issue. The most important conclusion of their study is this: the List should be abolished. After the List’s existence and acceptance for almost thirty years, that conclusion is both remarkable and alarming.

Under the Civil Justice Reform Act (CJRA), the Administrative Office publicly reports twice a year—on March 31 and September 30—when judges have cases that are older than three years and motions pending more than six months. There is a grace period of 30 days for motions so a judge has at least 214 days to decide a motion before being reported on the List.

The purpose of the List was to lessen the time that judges take to dispose of cases and motions, thus making the processing of cases faster and cheaper. Both sides of the aisle favored the List despite reliance on mere anecdotes of slow judges and the lack of study of the supposed problem and solution.

So, does the List work? Do cases close faster, and are motions decided more quickly than they would be otherwise? The authors’ answers are respectively no and yes and no. Perhaps more importantly, even in circumstances where the List somewhat accomplishes the goal of faster dispositions, the authors show significant, unintended bad consequences.

For their study, for case information, the authors looked at Administrative Office data from 1980 to 2017 and interviewed lawyers, judges, and court administrators. They analyzed the differences between closures of cases in weeks 13 and 39 (the weeks of March 31 and September 30) versus the closures of cases in other weeks before and after the effective date of the CJRA. For motions, they used a hand-coded random sample of almost 800 summary judgment motions filed between August 1 and September 30, 2011. They compared motions that were eligible for the March List with motions that were not eligible for that List. If a motion had been filed on August 29, 2011, it would need to be completed within 214 days—by March 31, 2012—to stay off the List, while a motion filed just two days later (on August 31, 2011) would need to be completed within 397 days—only by September 30, 2012—to stay off the List.

The authors found that the List has influenced judicial behavior, with case closures spiking in List weeks. Consistent with this, one judge reported that “[n]o judge likes being on this ‘report of shame.’”

The study has a number of other important results. The authors discovered that the three-year pending cases reporting requirement does not cause cases to close any faster. They believe that because judges already close most cases within three years, the reporting requirement is essentially irrelevant.

Motions, however, are significantly affected by the List. It takes 10-40 days fewer or 6-25% less in time for just-eligible summary judgment motions versus just-ineligible summary judgment motions. It is important to note that only motions that would have taken six months to resolve without the deadline are affected. In other words, the List does not affect motions with very short or very long durations.

In some ways the results simply show that judges act like most of us act. They are incentivized by deadlines and don’t want to look bad in comparison to peers.

The most significant results, however, demonstrate the unintended consequences of the List. Approximately 20% of the motions that judges did not decide from the August group (which were placed on the March List) were not decided until three weeks before the next List date of September. In other words, if a judge did not make the first deadline, he had little incentive to finish the case any earlier than the next deadline. So, the List may cause delay in some circumstances.

The List also may change outcomes. For example, eligible cases decided near the List time were 18% more likely to favor defendants than those decided at other times, and cases closed during List weeks had a 40% increased likelihood of being remanded on appeal—which may mean that they were decided incorrectly.

Given the high rate of summary judgment in civil rights cases, including employment discrimination cases, it was interesting that the study found that no specific case types were decided more frequently at the deadline or had a particular result.

The authors discuss the costs of the List, such as administrative expenses and the possibility of error. They also discuss the benefits of the List, including the savings of 10-40 days for the average motion, which could result in a positive monetary gain to the prevailing party. However, the authors conclude that the costs exceed the benefits, recommending that the List should be eliminated. Given the unlikelihood of this happening soon, they propose that more and different information, such as publishing the average or median duration of cases or motions, be provided to decrease the incentives to comply with the List.

The study of the List is one of the most important studies relating to the federal courts to come out in years. It illustrates the problems with congressional change that is motivated by anecdote and not by careful study. Most significantly, it shows that Congress should eliminate the List, which lessens justice in the federal courts.

Cite as: Suja A. Thomas, Take Down the List, JOTWELL (April 9, 2018) (reviewing Miguel de Figueiredo, Alexandra D. Lahav & Peter Siegelman, Against Judicial Accountability: Evidence From the Six Month List (revised 2018), available at SSRN),

Statutory Interpretation for Courts and Lawyers

Victoria Nourse, Misreading Law, Misreading Democracy (2016).

Since the New Deal, when more information became available about the hearings and reports that accompanied the passage of bills through Congress, lawyers and judges have been fighting over how to read legislation. Law professors have joined the fray, debating questions such as how far courts can stray from the plain meaning of the text and how reliably courts can look to legislative history in attempting to make sense of the words of the statute. Every interpretive method promises fidelity to Congress as the first branch of government, but the methods deliver very different forms of fidelity. Some prize the words themselves, using dictionaries and canons to give them meaning; others look for meaning in the purposes and debates that animated the legislation.

Enter Victoria Nourse. In a series of articles drawing on her experience as a key staffer in Congress, Nourse argues that we should all take a class in Congress 101. That is, both textualists and purposivists approach the words of a statute with a shared misunderstanding of the way members of Congress do their work. The words of the statute count in Nourse’s telling, but they must be read with an appreciation of the nature of the legislative process. That insight, shared with positive political theorists, sets the stage for Nourse’s critique of modern methods of interpretation and her attempt to construct an alternative approach, one she calls a “legislative decision” mode of interpretation.

Nourse bases her approach to interpretation on a deep appreciation for the rules that structure the way bills become law. On this view, statutes emerge not from a process of careful and iterative drafting in which all the members sharpen their quills, but from an intensely political process. Nourse calls it an election. To win, a bill must attain a supermajority vote in the Senate (that is one key rule of the legislative decision process). To understand the compromises that led to the bill’s passage, one has to attend to the choices that allowed its sponsors to round up sixty votes in the Senate. Cheap-talk speeches by proponents and opponents tell us little about those crucial compromises. Instead, we must attend to the drafting choices at mark-up and during floor debate, when costly choices are being made to secure the votes needed. To figure out what happened, it may be necessary to reverse engineer the legislative process to home in on the crucial inflection point around which the supermajority coalesced. Other rules govern the process of compromise. When a conference committee meets to resolve differences between the House and Senate, it acts within a set of rules that narrows its options. Conferees cannot fashion new or more ambitious approaches.

Nourse takes this insider’s guide to the legislative process and applies it to a range of familiar statutory-interpretation problems. Consider the Supreme Court’s approach to the discriminatory impact of tests and other job requirements in Griggs v. Duke Power. Much was made at the Court of the defeat of the Tower amendment as part of the Senate’s deliberations over Title VII. Nourse explains that Tower was a loser in the election, trying to reopen the deal that had ended the Senate filibuster; defeat of the Tower amendment thus tells us little about the deal struck to get to sixty votes in the Senate. Or the lengthy legislative history Justice Rehnquist compiled in his dissent from the decision in United Steelworkers v. Weber to allow affirmative action programs by private employers. Nourse shows that the Rehnquist dissent focuses on legislative history that occurred months before the addition of the key textual provision during Senate deliberations.

Or the Court’s interpretation of the term “utilize” in Public Citizen v. DOJ, which asked whether the President had “established or utilized” the ABA for purposes of judicial evaluations and was thus obliged to ensure that their meetings were open and their membership balanced. The Court labored to avoid a finding that the President “utilized” or used the ABA, but Nourse shows that the Court might have avoided this struggle through careful attention to the origins of the text’s “or utilized” language, which first appeared in the conference substitute. Since both the House and Senate had agreed on “established” and since legislative decision rules prohibit conferees from changing text on which both chambers have agreed, the right thing to do was to ignore the nettlesome addition.

Finally, Nourse tackles the fate of the snail darter, which came to the Court as a conflict between the Endangered Species Act and a series of appropriations bills that had funded the dam that was said to threaten the darter. Nourse shows that the Court backed the wrong statute, in effect treating the ESA as taking precedence while members of Congress would have surely regarded appropriations legislation as controlling.

Nourse draws general conclusions from these examples. We should not waste too much time on the early versions of legislation, but should attend more carefully to late-stage developments. She criticizes scholars and courts for the way they talk about the legislative process. True, the process of holding statutory elections can produce messy laws. But no member ran for a seat in Congress on their drafting prowess; the people care about policy and not about the nice interpretive questions that occupy the scriveners on the federal bench. Nourse offers a thoughtful defense of legislation—it is different from the process that judges deploy to settle disputes over meaning. For Nourse, true fidelity to the legislative process calls for a greater appreciation of the way it really works. Hence her argument, reflected in the book’s title, that courts today approach statutes in a way that misreads the law and misunderstands the democratic (legislative) process.

Nourse writes in an engaging and accessible style and offers a model of interpretation that lawyers and judges can understand and “utilize.” One comes away from the book wishing Nourse had tackled more examples of flawed interpretation, had reverse engineered more statutes, had shed light on more instances in which courts, in the course of demeaning their legislative colleagues, reached conclusions that would have mystified those involved in the lawmaking process. But perhaps that is work we will have to do for ourselves, now that Nourse has illuminated the rules of Congress 101.

Cite as: James E. Pfander, Statutory Interpretation for Courts and Lawyers, JOTWELL (March 26, 2018) (reviewing Victoria Nourse, Misreading Law, Misreading Democracy (2016)),

“And the Deposition Goes to the Gentleman in the Blue Pinstripe Suit”

Ronen Avraham, William Hubbard & Itay E. Lipschits, Procedural Flexibility in Three Dimensions (2018), available at SSRN.

A burgeoning procedural literature explores the power of parties to alter the procedural entitlements of the civil-justice system by means of contractual agreement and the limits of that power. The most dramatic example of such bargaining is the agreement to arbitrate, although bargaining also can occur within the context of a civil lawsuit. As Ronen Avraham, William Hubbard, and Itay Lipschits argue in a fascinating new paper, this literature has focused almost exclusively on a single question: which procedures are subject to contractual negotiation and which are not? No one believes that the parties can by contract agree to let the judge flip a coin to determine the winner, but most scholars believe that parties can contract for fewer depositions or requests for production. The debate has centered on distinguishing “core” procedural rights that are not subject to negotiation from non-“core” rights that can be bargained away.

While largely accepting that distinction, the authors challenge extant efforts to establish the limits of procedural flexibility by means of this “core” metric. They make two critical points. First, the distinction between the core that is non-negotiable and the non-core procedural rights subject to horse-trading is slippery at best. There is widespread agreement that core rights are those whose alteration through party negotiation might impair the interests of third parties, might impose additional burdens on the court, or might impinge on reasoned judicial decision-making. The parties’ inability to contract for a coin flip by the judge falls within this last category. But the sacrifice of non-core rights (say, bargaining away the right to take depositions) can affect the information on which the judge’s decision is based and thus deflate the quality and accuracy of judicial decision-making. Even assuming that lines can be drawn, the authors demonstrate that many “core” rights, which should in theory apply uniformly in all cases, are subject to great variability and flexibility in practice, with different judges (and sometimes even the same judge) adopting different procedures in different cases to reason their way to the result.

The second criticism — and the paper’s critical insight — is the all-or-nothing nature of the distinction.

On the standard scholarly account, any right within the core applies uniformly in all civil cases; any right outside the core is always subject to negotiation. Avraham, Hubbard, and Lipschits argue that this rigidity fails to recognize two additional dimensions along which cases can be procedurally flexible. One dimension is the nature of the lawsuit — perhaps the core is large in cases of significant social or legal import and small in cases the authors call “routine” (for the most part, cases presenting only factual disputes whose resolution matters only to the parties themselves). The parties should be unable to bargain away most rights in non-routine cases; even a bargain to limit the number of depositions may be off limits if it unduly affects the quality of information available to the judge making a decision likely to have broad precedential effect. Conversely, when the outcome of a case has no effect beyond the parties to the dispute, they should be able to structure the dispute-resolution process in almost any way they wish.

The other dimension that should bear on the question of procedural flexibility is methods or means. Here the authors launch their most provocative claim: that we should create markets in procedural entitlements. As the authors correctly point out, all the literature on the limits of procedural flexibility through contractual modification assumes that the negotiation occurs only between the parties to the suit: if the defendant wants to take more (or fewer) depositions, he must bargain with the plaintiff to make that deal. “Why?” the authors ask. Creating a secondary market in freely tradable procedural entitlements allows parties to realize some of the value of their claims or defenses even when they lose. Under Federal Rule of Civil Procedure 30(a)(2)(A)(i), every party is entitled to take ten depositions; if I need an extra five depositions, why can’t I buy them from a litigant in another case, who intends to use only five of the allotted ten? Under Federal Rule of Appellate Procedure 32(a)(7)(B)(i), a principal brief may contain no more than 13,000 words; if I need an extra 5,000 words to make my argument on appeal, why can’t I get them from a vendor who has bought up the word allotments from parties who are more parsimonious with language than I am?

The authors suggest two principal ways through which a market in freely tradable procedural opportunities might be created. The first is a cap-and-trade system, akin to pollution-control regimes, in which a central decision-maker (Congress? The Supreme Court? The Administrative Office of U.S. Courts?) sets a cap on the amount of procedural entitlement available for purchase, then allows the entitlement holders to reap the value of the entitlement by selling it to others. The second is a government auction, akin to the government’s allocation of broadband spectrum, in which the government sells entitlements either to litigants or to vendors with whom litigants can then deal. The authors propose that the realized funds from the second approach be dedicated to improving the justice system and providing legal services to the underrepresented.

Framing the “procedure as contract” debate along these three dimensions — “which procedures,” “which cases,” and “which type of flexibility” — raises numerous implementation difficulties that the authors seek to address. On the second question (“which cases”), the authors state — somewhat controversially in my judgment — that ninety-nine percent of all cases are “routine,” and thus subject to broad-based negotiation about the shape of the procedural forms that will resolve the claims and defenses. They admit that a judge may need to determine whether a lawsuit is routine early in the case, and that the judge might be wrong. But they argue that default rules (for instance, class actions and multidistrict litigation proceedings are never routine) and other markers (for instance, the appearance of intervenors or amici make the case not routine) will provide reliable guides in most instances.

The authors spend more time sorting out theoretical and implemental issues for the headline-grabbing third question (“which type of flexibility”). They recognize that a cap-and-trade approach creates problems. Setting the cap at the right level is one issue: how many depositions and how many words, in total, should the civil-justice system countenance? Providing the entitlement to the right people is another. If entitlements are allocated on the basis of party status, the system creates an incentive for people to flood the courts with lawsuits whose sole purpose is to market litigation rights. But other methods of distributing entitlements, such as giving each citizen an annual or lifetime allotment of depositions, seem impractical.

The authors find the auction method more promising, although the intervention of major players — think private-equity firms that snarf up all the depositions for the year — may be an unappealing prospect for some. But the authors argue that these proposals will be allocatively efficient and will reduce the negative externalities associated with litigation, just as cap-and-trade systems have markedly decreased the externalities from pollution. As a distributional matter, permitting procedural trading will not favor the rich any more than the present system, in which litigants already get only as much justice as they can afford to purchase. Of course, cap-and-trade or auction markets in procedural entitlements are subject to the charge that they commodify justice, to which the authors respond: That’s right, and if you can’t abide that fact, then these proposals are not for you. But the authors do not close on a take-it-or-leave-it note. They show how market mechanisms may enhance (or least not retard) the quality of dispute resolution, aid in norm creation, and enhance democracy. In short, there is something to like about this proposal even if you hold a normative rather than economic perspective on procedural rights.

I was fortunate to obtain a very preliminary draft of this paper, and I recognize that the authors’ thoughts may evolve as they work through the details of their proposals. Some of their claims about the scope or operation of procedural rules are broad and lack the nuance that later footnotes will presumably provide. But quibbles about the description of present doctrine are beside the point in an article whose goal — successfully accomplished, in my judgment — is to get all of us to think outside of the usual boxes in the procedure-as-contract debate. Its creative genius is to show procedural entitlements in an entirely new light — not as transaction costs sullenly tolerated only to the extent that they cut error costs at the margin by improving accuracy, but also as a source of positive value for those who hold procedural entitlements.

The exact relationship among the three modes of flexibility is unclear in the present draft. The authors do not state definitively whether a market in procedural rights should exist only in “routine” cases in which party bargaining over procedural form has the greatest latitude. Assuming a functional market in procedural entitlements, is there any reason why parties in a complex and socially important class action should get only the entitlements that the judge permits, while parties in routine litigation can purchase greater quantities of entitlements? The authors do not discuss how a market in entitlements fits with a large unchangeable core of entitlements in non-routine cases, nor the exact content of the core in routine and non-routine cases. It is hard to see how robust this market in entitlements will be, at least in the cases that matter.

The authors show some sensitivity to the ways in which the exercise of procedural rights can harm third persons and seem to accept tacitly the premise that the scope and extent of procedural opportunities can affect the outcomes that parties can expect. Whether in this paper or another, they must better sort out whether a market in entitlements might help well-financed parties engage in scorched-earth tactics to avoid liability. At one point they suggest that if a party buys 10,000 more words for itself, it might be required to purchase the same number for its opponent. But it remains unclear whether there should be a more general hold-harmless rule to prevent the imposition of costs on opposing parties and third persons.

The effect of this system on the litigants also deserves further reflection. In some cases, the ability to purchase additional procedural opportunities might enhance agency costs, whether they arise from an hourly-fee lawyer seeking to squeeze out more fees from the lawsuit or a contingency-fee lawyer fronting the purchase price and settling the case on the cheap to ensure recovery of the additional cost.

The choice of method to market procedural entitlements also presents an important distributional question for which there is no definite answer. Cap-and-trade gives the value of the entitlements to their holders (whether they be the parties or the citizenry as a whole). Auction gives the value to the government, which created the entitlements in the first instance. Unless the bidders at auction are limited to present litigants, however, it is likely that a sizable chunk of that value will fall to highly capitalized jobbers who will buy up the entitlements and then sell them off at a profit.

Commodifying procedural entitlements also might have a disheartening side effect: skewing procedural reform. In some instances, commodification will make reform harder, because those who hold present entitlements have an incentive to oppose substantial reform. Say, for instance, a cheap and harmless truth serum threatens to make depositions conducted by lawyers obsolete. Holders of deposition entitlements would have a strong reason to oppose the switch to the serum. (Granted, there might be other reasons to oppose the use of truth serums, but we can already imagine the slick advertising campaigns that entitlement-holding hedge funds will run to exploit those reasons and scare people into opposing reform.) In other ways, commodification might spur useless reform, as people seeking to profit from new forms of entitlements that add little social value to judicial decision-making lobby to enact these forms.

Many of the concerns that the authors and I have identified are trained specifically on the third question of appropriate types of procedural flexibility and the authors’ answer of markets in procedure. The authors acknowledge that their proposal is “to say the least … implausible, and in any event well outside the realm of existing law.” In the rush to talk about markets in procedure that this paper will likely generate, it is important to bear in mind the broader frame of procedural flexibility within which this proposal arose. The authors’ second point — that the breadth of the parties’ right to negotiate procedural forms should depend on the nature of the case — is an insight whose significance does not hinge on the merits of establishing a secondary market in procedural entitlements.

The third question is valuable even if a market-based solution is impractical. Establishing markets in procedure is a logical endpoint of permitting parties to negotiate over the procedural forms to resolve disputes. If creating such markets seems a bridge too far, then perhaps the entire movement toward contract-based procedure is fundamentally flawed. If so, that realization is only a first step. The litigation system operates in a competitive environment. If potential litigants are voting with their feet by moving away from judicially provided procedure toward party-agreed procedure, the litigation system must reform or die.

Given the practical impediments, markets in procedure may not prove the way to reinvigorate the litigation system in the marketplace of dispute resolution. But out-of-the-box creativity, what Avraham, Hubbard, and Lipschits offer here, is needed if a solution is to be found.

Cite as: Jay Tidmarsh, “And the Deposition Goes to the Gentleman in the Blue Pinstripe Suit”, JOTWELL (March 12, 2018) (reviewing Ronen Avraham, William Hubbard & Itay E. Lipschits, Procedural Flexibility in Three Dimensions (2018), available at SSRN),

The Empirical Truth About Qualified Immunity

Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017).

The critical scholarly narrative surrounding civil rights litigation is that the Supreme Court in the past decade has expanded the defense of qualified immunity, particularly through a series of per curiam reversals of qualified-immunity denials, with the Justices impatiently demanding that lower courts properly (and expansively) approach immunity. The effect has been to slam the courthouse doors on injured plaintiffs. Expansive qualified immunity insulates all but the “plainly incompetent” and those who knowingly violate the law. It shields officers against liability except for the rare case in which the officer violated a constitutional right that was “clearly established” by binding precedent finding a constitutional violation on factually similar conduct in factually similar circumstances, or the rarer case in which the violation was so obvious in light of general constitutional principles (such as tying a prisoner to a hitching post in the sun for seven hours). And the Court moved the doctrine in this direction for unabashed policy reasons—to insulate law-enforcement and other public officials from the cost, burden, distraction, and expense of litigation, discovery, and trial, by raising the bar for liability and requiring resolution of immunity early in litigation.

In How Qualified Immunity Fails, Joanna Schwartz’s empirical study shows both the critical narrative and the Court’s purported goals to be empirically unsupportable.

Schwartz reviewed dockets for cases brought by civilians alleging constitutional violations by state and local law-enforcement employees and agencies. The study examined cases filed in 2011 and 2012 in five federal districts in five circuits (Southern District of Texas, Middle District of Florida, Northern District of Ohio, Eastern District of Pennsylvania, and Northern District of California). The study yielded 1,183 cases; qualified immunity could be raised as a defense in 979 of them because the case included claims against an individual officer for money damages. In all but three cases, qualified immunity was raised only on summary judgment, only on a motion to dismiss on the pleadings, or at both stages (it was raised only at trial or appeal in the other cases). Schwartz identified 440 motions (to dismiss on the pleadings or summary judgment) in those cases; qualified immunity was denied in the plurality (139) and granted in full or in part in a smaller number (79). In fact, courts were more likely to grant dismissal or summary judgment in whole or in part on other grounds or without mentioning qualified immunity. Moreover, a grant of qualified immunity need not end the litigation or that officer’s role in the litigation; other claims may remain in the case for which qualified immunity is unavailable (claims for non-monetary relief, claims against government entities, and claims under state law). Schwartz identified only 38 cases in which qualified immunity ended the litigation—27 on summary judgment, 7 on pleadings dismissal, and 4 on appeal.

These findings suggest that qualified immunity does not slam the courthouse doors as critics fear. To the extent civil rights and constitutional claims fail, they fail for reasons other than qualified immunity. The plaintiff failed to plead facts showing a plausible claim for a constitutional violation. Or he failed to produce evidence showing a genuine dispute of material fact. For Bivens claims against federal officials (which were not included in this study, but are the subject of an ongoing study by a group of scholars), the hurdle is the narrowing of the Bivens cause of action itself. Or claims fail because the scope of constitutional rights and the standards for establishing a violation have narrowed, leaving law-enforcement officials more constitutional leeway to act.

At the same time, Schwartz’s findings show that qualified immunity does not achieve its policy goals of protecting government officials from the cost, burden, expense, and distraction of discovery and litigation. A finding of qualified immunity does not get the individual officer out of litigation or discovery and its associated burdens. Claims may remain seeking equitable relief for the constitutional violation or seeking remedies under state law. Claims may remain against the municipality; although the officer no longer remains a party, he may remain part of the litigation and the discovery process as a witness and as the person whose conduct is the linchpin for the entity’s liability. And the grant of qualified immunity likely had to await summary judgment, which must await some discovery, meaning the officer had to endure some of the burdens, costs, and distractions that immunity is designed to limit.

In establishing the modern approach to qualified immunity, the Supreme Court acknowledged that the doctrinal balance might be reconsidered if the realities of constitutional litigation undermine the Court’s assumptions about the purposes and benefits of immunity. Schwartz insists that her findings have undermined those assumptions, revealing the doctrine as “an exercise in futility.” The answer, however, is not to make qualified immunity stronger. She doubts the doctrine could be stronger than it is, certainly in the Supreme Court. And even expansive qualified immunity is not tailored to its intended role, because immunity cannot be adequately resolved before discovery and summary judgment and because plaintiffs can avoid the defense by including claims to which immunity does not apply.

Instead, Schwartz’s empirical demonstration of the emptiness of qualified immunity suggests the Court should eliminate or redefine the defense. It could rely on other mechanisms (summary judgment, motions to dismiss, and the limits of substantive constitutional rights) to protect officers against non-meritorious claims. It could reinstate the subjective prong to qualified immunity, denying immunity to officers who act in knowing and subjective bad faith or with knowledge of the unconstitutionality of their behavior. It could eliminate immediate appeal of immunity denials under the collateral order doctrine. At a minimum, it could move the “clearly established” prong away from case law and the demand for on-point precedent to a focus on a broader sense of whether the officer’s conduct was “clearly unconstitutional,” whether based on case law or general constitutional principles.

This is the second article in which Schwartz has used empirical study to show that the Court’s assumptions around qualified immunity are flawed. She previously showed that qualified immunity fails to serve an alternative purpose of avoiding over-deterring law enforcement for fear of personal liability; her study of indemnification agreements revealed that officers pay even a small portion of any judgment in only a miniscule percentage of cases. With this second paper, Schwartz has completed the task of showing that the Emperor of Qualified Immunity has no clothes.

Cite as: Howard M. Wasserman, The Empirical Truth About Qualified Immunity, JOTWELL (February 23, 2018) (reviewing Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017)),