Democratizing Dockets

Nov 7, 2024 Roger M. MichalskiAdd a Comment

Roger M. Michalski

Much has been written about the inaccessibility of court data. State courts are a mixed bag, but most state dockets are difficult to study. Tribal courts are even more heterogenous. The federal system provides reasonable top-level data but makes large-n studies of litigation activity tricky and costly. Commercial solutions are often pricey, incomplete, or both. The dearth of good data has been a massive impediment to the “democratization” of empirical studies in civil procedure. Scholars without significant research budgets or special connections have been stymied from answering the many empirical questions we all have about the day-to-day work of courts.

It is in this context that No Adjudication shines. Many civil procedure teachers have a sense of how many cases terminate early and without much fuss. Few can offer more than anecdotes when students inquire about specifics. No Adjudication fills that gap in important ways.

The first is to complicate our understanding of litigation. As other scholars have pointed out, teachers and scholars frequently highlight the many attention-grabbing cases with battling and beefy motions, drawn-out fights over years in multiple forums, flashy trials, and thousands of docket entries—Opioids, tobacco, asbestos, Vioxx, Texaco’s boomerang litigation. But perhaps rule-makers and scholars have not paid enough attention to the run-of-the-mill cases. Not only are trials vanishing and courts increasingly lawyerless, but No Adjudication shows that litigation often is also not public and not, as most presume, based on “presentation of facts and arguments to a neutral arbiter.” Most federal court cases (60%) resolve with only a complaint or complaint and an answer. Less than a third of cases include a filing of a dispositive motion. Most cases are in federal court for a few short weeks. Most produce only a handful of (largely routine and clerical) docket entries. What would civil procedure look like if designed primarily for “no adjudication” cases? What would a civil procedure class look like that taught future lawyers to practice ethically in such an environment?

These points are not entirely novel but certainly become more persuasive when buttressed with fresh, careful, and relevant analysis of ample data, the article’s second contribution. Its findings are based on a complete record of all Federal civil docket sheets for a two-year period, roughly 357,000 cases and millions of docket entries. That is a staggering amount of data. It far surpasses what most scholars have been able to access in the past. Previous studies frequently relied either on court opinions or on docket sheets from a sampling of cases. Both have important limitations that No Adjudication avoids.

The article’s third contribution is methodological in nature. To make sense of all these docket entries, the authors developed “a set of uniform litigation event labels” to bring order to the non-standardized and absurdly diverse ways that identical events are labeled in dockets around the country; this labeling process is available for future researchers. There are numerous ways to do this kind of work, with varying advantages and downsides. I suspect future researchers confronting the same task will benefit from the labeling process described here—whether they duplicate it, modify it, or reject it in favor of a different approach. Another methodological contribution is the authors’ humility. They contribute to the further development of the field by emphasizing the limitations of their approach and data. Even with access to amazing data, important varieties of litigation activity remain invisible because they occur “informally, behind closed doors or outside the courthouse,” do not result in a docket entry, and because there are “no uniform rules across districts for docket entries.”

The article is worth careful study in its own right. However, it also deserves attention as a sign of what might come next. The data used in the article comes from the SCALES-OKN project. Many people have generously contributed to the project over many years to acquire the data and make it accessible. That is a rare feat in legal scholarship that, I hope, will help to democratize studies of courts in every sense.

Leveling the Playing Field for Racial Justice in the Civil Litigation System

Oct 22, 2024 Suzette M. MalveauxAdd a Comment

Suzette M. Malveaux

In the United States, we are taught from an early age that we have a “right to our day in court.” This right to access the civil justice system is drilled into many of us as a given, something as American as apple pie. Yet upon further reflection, it is clear that this proverbial right has been tempered by forced arbitration. Most workers and consumers across the country cannot be heard by a jury of their peers in a free, public, transparent forum subject to appellate review, procedural guardrails, and substantive rights. Instead, anyone wanting a job, cell phone, bank account, you name it, is forced to use a private dispute resolution system to challenge their employer, landlord, retailer, by themselves and in secrecy.

Under the weight of the #MeToo movement and severe public pressure, Congress stopped this unseemly practice for a subset of Americans—those challenging sexual assault and harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), passed in 2022, gives these victims a choice of whether to challenge sexual misconduct in court or in arbitration. Such ubiquitous take-it-or-leave-it contracts are now unenforceable, giving this narrow swath of the population the power to decide for themselves how to challenge such outrageous wrongdoing. In Expanding the Ban on Forced Arbitration, Michael Z. Green argues that race discrimination claims should also be exempt from compulsory arbitration.

Green sets the stage by walking the reader through over 30 years of Supreme Court history (1991-2002), describing how the Court erected a fortress of precedents favoring the enforcement of private arbitration agreements in cases involving statutory employment discrimination claims. Relying on a sample of cases, he lays the groundwork for how and why corporate America has succeeded at privatizing the civil justice system.

Recent events finally disrupted this trend of powerful companies and employers requiring consumers and employees to use private arbitration and challenge wrongdoing alone (through mandatory class action waivers embedded in their arbitration agreements). With the vast majority of Americans (Democrats and Republicans alike) disapproving of forced arbitration, and no dearth of horror stories from women around the country complaining of sexual assaults and harassment being sheltered by the forum, Congress passed EFASASHA.

Given this welcome progress, one would think expanding this shelter to cover victims of race discrimination would easily follow suit—a no brainer. Contrary to this logic, Congress has not passed a comparable bill for cases involving racial claims, instead turning its attention to age-based claims.

This unfair and inefficient piecemeal justice has led Green to make the case for how race discrimination claims that are part of a case related to a sexual assault or harassment dispute should fall under EFASASHA’s procedural protections. Relying on the seminal work of intersectionality scholars, he describes how the theory can bridge the procedural justice gap between race and sex claims. Where the two are inextricably linked, they must travel together—away from compulsory arbitration and into court.

The article’s particularly unique and hefty contribution is in its exploration of how the principles underlying preclusion doctrine can also bridge the procedural justice gap. Judicial economy, fairness, convenience, comity, and consistency undergird res judicata and collateral estoppel, providing attractive anchors for beleaguered judges, advocates, and parties alike. However, given the Supreme Court’s stubborn tilt toward enforcing arbitration agreements under the Federal Arbitration Act (FAA), preclusion doctrine has not fared well as a tool to prevent piecemeal litigation in arbitration and court. Arbitrable and unarbitrable claims in a single case have been sent to different fora, despite the risks and inefficiencies of this approach.

While the federal supplemental jurisdiction statute does not help Green bring unarbitrable sex claims and arbitrable race claims into one proceeding, the “intertwining” doctrine does. Examining over 35 years of precedents (1985-2022), he makes a cogent argument for how the intertwining doctrine, post-EFASASHA, may be the antidote to the forced separation of race and sex discrimination claims.

Historically, disputes including “arbitrable and unarbitrable claims aris[ing] out of the same transaction, and are sufficiently ‘intertwined’ factually and legally” could proceed together in the court system, regardless of an arbitration agreement. But Dean Witter Reynolds v. Byrd overruled this practice, resolving a split among the lower courts in favor of the strong federal policy for arbitration and removing judicial discretion to lean otherwise.

Green argues persuasively that EFASASHA revives the intertwining doctrine. Byrd contains a carve out, allowing a “countervailing policy manifested in another federal statute” to trump its strict prohibition of the intertwining doctrine in the context of arbitrable and unarbitrable claims. EFASASHA, Green argues, provides that other federal statute that squares off with the FAA (although one might say they are the same statute, given that EFASASHA is an amendment of the FAA) and justifies the consolidation of unarbitrable sexual misconduct claims and arbitrable race discrimination claims in the public court system. Such consolidation protects EFASASHA’s countervailing policy of preventing a sexual assault or harassment victim from having to testify twice in two fora, compounding their trauma. Several courts seem to agree, allowing race discrimination claims related to sexual assault or harassment disputes to proceed under EFASASHA.

Green then urges employers, retailers, and other businesses not to wait for the Court or Congress to fix the piecemeal litigation problem. He presses the private sector to proactively permit race discrimination claims to escape compulsory arbitration and class action bans, emphasizing the indefensibility of procedurally favoring one protected class over another. The potential reputational harm may be more than they realize. Socially conscious millennial employees dominating the workforce and high-profile race discrimination cases challenging forced arbitration—such as one brought by Black NFL coaches—may see this corporate “two-step” in a disfavorable light. This is especially true for those companies who only a few years ago claimed alliance with Black Lives Matter (BLM) and pledged support to diversity initiatives. Green challenges these businesses to live up to their public promises, lest they be judged as purely performative.

Finally, Green recognizes and takes stock of the role that the public can and has played to bring about procedural justice. These include: mass social movements, such as the walkout by 20,000 Google employees; high profile bi-partisan legislative advocacy, such as the testimony by former Fox News host Gretchen Carlson; and plaintiff lawyers’ creativity, such as mass individual arbitration filings. Green urges labor organizers, BLM, and attorneys to coalesce to form a “Black Labor Matters” coalition to push for procedural parity.

In sum, Expanding the Ban on Forced Arbitration to Race Claims offers a way forward, an empowering menu of prescriptions to the vexing problem of racial inequity in the civil justice system.

Case Assignment & Its Constitutional Implications

Oct 4, 2024 Brooke D. ColemanAdd a Comment

Brooke D. Coleman

Which judge decides a case? This evergreen civil procedure question occupies many a civil procedure class. Discussions of Erie and related topics often focus on the litigating parties’ motivations and whether their filings were strategic, gamesmanship, or some mix of both. In Constitutional Case Management, Katherine Macfarlane shifts our focus to the courts themselves by exploring the mechanisms courts use to assign cases.

Macfarlane begins by exploring and questioning the source of case assignment power. Article III empowers Congress to create inferior courts, which includes the power to structure the lower federal judicial system. This power includes case assignment. For example, Congress has adopted laws allowing federal judges to sit by designation. These statutes, which authorize judges appointed to a specific federal court to temporarily sit elsewhere, change the cases they would otherwise hear in their home courts.

Congress also can establish rules governing litigation in the courts it has established. For example, 28 U.S.C. § 137 requires courts comprised of more than one judge to distribute cases “as provided by the rules and orders of the court.” Federal Rule of Civil Procedure 83(a) further requires that any district court rules must be approved by a majority of that court’s judges. Macfarlane reveals, though, that absent a clear local rule, some courts read § 137 to allow the district’s Chief Judge to assign cases unilaterally via general order. Macfarlane questions the constitutionality of that practice. Unlike a local rule enacted under Rule 83(a), a general order lacks public comment, engagement by the local bar, and a vote by all district judges.

Macfarlane then reviews local assignment rules and general orders in three federal districts. Her results demonstrate the widespread effect of these case-assignment mechanisms. While recent high-profile case-assignment controversies have made national news, her study shows that these problems also affect lower-profile, but still quite important, cases such as pro se habeas petitions.

Although specifics of Macfarlane’s study are too numerous to address in this summary, her research demonstrates a handful of interesting trends. Single-judge divisions within a district are more common than we might think. Courts create exceptions to random case assignment through general orders rather than Rule 83’s local rulemaking process. And notably, it is difficult to locate the case assignment practices of each federal district. With respect to this latter trend, the Western District of Texas has more than 166 general orders available online and the Southern District of Florida has thousands. These orders (in these and other districts in the study) establish a patchwork of case-assignment provisions. Some place certain substantive cases with specific judges; some divide by percentage the kinds of cases each judge will hear; and some divide the work based on divisions within the district as well as substantive areas.

While as a matter of policy Macfarlane may prefer that case assignments be random as opposed to directed through these various orders, that is not the substantial contribution of her article. By situating certain case-assignment mechanisms within the constitutional authority of Congress, and therefore under Rule 83, Macfarlane reveals a promising argument for challenging any directed assignment of cases within district courts. For example, in the mifepristone case, plaintiffs could have challenged the district court’s decision by questioning the constitutionality of how the case was assigned to that judge in a single-judge division.

Macfarlane is not alone in questioning the legitimacy of certain case-assignment provisions. Congress and the Judicial Conference have attempted reforms, although Congress has not passed any laws and at least one judicial district has ignored the Conference’s recent directives. Until courts adopt reforms, Macfarlane’s article offers a novel argument for challenging certain case-assignment provisions on a case-by-case basis. She adds a richness to our recurring “which judge” discussion, and I commend it to all as a piece they just might like lots.

Protecting the Public from Protective Orders

Sep 20, 2024 Allan ErbsenAdd a Comment

Allan Erbsen

Stipulated motions can be more troubling than they seem. The cooperation that leads to stipulations is a beguiling reprieve from the combativeness of litigation. Parties constantly file contested motions raising vexing questions that require judges to pick winners and losers. In contrast, stipulated motions appear simple and enable win-win outcomes. Busy judges might be tempted to grant these stipulated motions without much thought. Minimal scrutiny is tolerable if an order truly is win-win for everyone who the order affects. But if the order has collateral consequences, then a win for the parties can impose a troubling loss on the public. Rulemakers recognize that private and public interests do not always align and craft procedures to manage the incongruity. For example, Federal Rule of Civil Procedure 26(c)(1) requires judges to police self-interested parties seeking protective orders. Even if the parties agree that information obtained though discovery should remain private, judges must find “good cause” before shielding information from the public. The rule gives judges discretion to protect trade secrets and personal data while enabling disclosure of threats to public health and safety.

Secrecy by Stipulation reveals that the “good cause” requirement often fails to prevent dubious protective orders. When parties stipulate that secrecy will facilitate discovery, courts are reluctant to disrupt the agreement. The authors—Nora Freeman Engstrom, David Freeman Engstrom, Jonah B. Gelbach, Austin Peters, and Aaron Schaffer-Neitz—acknowledge that prior scholarship has considered the potential harms of protective orders and the need for careful judicial scrutiny. Many commentators believe that judges are side-stepping the “good cause” standard. However, a lack of data has hindered efforts to assess the frequency of stipulated protective orders and the intensity of judicial review. Critics of secrecy have relied on anecdotal accounts and empirical studies with limited scope. This evidence has not convinced rulemakers that judges are departing from the requirements of Rule 26(c)(1). Proposed reforms therefore have failed to gain traction.

The new article responds to the impasse by providing better evidence of how Rule 26(c)(1) operates in practice. The authors employ cutting-edge empirical methods to show that stipulated protective orders are more common and less scrutinized than rulemakers assume.

Measuring the prevalence of stipulated protective orders is difficult. Researchers must parse docket sheets to find orders with a range of designations. Moreover, the frequency of orders may vary by time, place, and subject matter. Scholars hoping to paint a complete picture must therefore analyze a massive sample of cases. Unsurprisingly, no one has completed this labor-intensive inquiry until now.

Modern technology makes the task of identifying stipulated protective orders less labor-intensive than manual coding techniques. The authors cleverly combine text processing and machine learning to extract information about protective orders from more than two million docket sheets in civil cases filed between 2005 and 2012. These techniques reveal the frequency of stipulated protective orders with far more precision than prior studies. The authors explain that the passage of time since 2012 should not undermine the current relevance of their findings.

The study reveals that at least one party files a motion for a protective order in roughly 8.5% of the cases that survive long enough for defendants to file an answer. Roughly 45% of these motions are stipulated. Despite the “good cause” requirement, judges grant approximately 96% of stipulated motions. More than half the judges who reviewed at least twenty-five motions for stipulated protective orders granted every motion in its entirety. The authors contend that this 100% grant rate is evidence that “searching case-by-case scrutiny is not the norm.” They reinforce this finding of “rubber-stamping” by qualitatively reviewing four hundred cases from the sample. Most of the orders granting stipulated motions did not mention “good cause” and did not provide any case-specific analysis. In contrast, judges who denied stipulated motions often found glaring errors. The authors “identified many of these same errors” in their review of granted motions. The prevalence of errors in granted motions suggests that courts are not rigorously applying the “good cause” standard.

Of course, data does not have self-evident implications. A high grant rate for stipulated protective orders is troubling only if judges should have denied some of the granted motions. Determining whether motions should have been denied requires a normative framework for analyzing judicial secrecy. The article therefore does more than present the results of an innovative empirical study. The authors situate their study within a broader context of debates about the purpose of civil adjudication. If adjudication should promote public interests in addition to private interests, then secrecy may be undesirable. Secrecy is especially troubling under an emerging theory positing that the tort system should aspire to transfer privately held information about wrongdoing into the public domain. This transfer would enable government officials to implement regulatory objectives more effectively. The authors hope their empirical findings will invigorate conversations about the information-disclosing function of adjudication.

Secrecy by Stipulation should generate a wide-ranging discussion. The authors have provided a sobering reminder that the FRCP’s general commands can be ineffective when judges lack the benefit of adversarial briefing. The article also highlights how secrecy minimizes the ripple effects of private discovery. Cabining these effects can undermine both private and public enforcement of health and safety regulations. In addition, the authors’ creative integration of machine learning and qualitative analysis can shape future empirical studies of judicial behavior. Millions of docket sheets are ready to be mined by creative researchers. The article is therefore notable for its descriptive findings, normative implications, and empirical methods.

State Courts as Laboratories of Structure, Procedure, and Democracy

Jul 12, 2024 Pamela BookmanAdd a Comment

Pamela Bookman

State courts contain multitudes. This is true within a particular state court system. Several states have multiple trial courts—New York, one of the largest court systems in the world, famously has eleven—handling a wide variety of matters. It is also true across state courts and state court systems throughout the country. State supreme courts are increasingly in the spotlight as the keepers of state substantive law on important issues such as abortion and election law. But states’ various approaches to court procedures and courts’ structural role in democracy have received less attention.

This is why I like Jerry Dickinson’s work on state courts as laboratories of democracy. He urges us to see state courts not only as interpreters of law and articulators of rights (and thereby developers of public policy), but also as places for experimentation in procedure and institutional design. Readers of this blog know that procedure and court structure matter. The delay of a trial date or the justiciability of an issue in one court as opposed to another can have significant consequences for our law and our democracy. In state or federal courts, individual judges can make procedural determinations or a panel of judges can interpret law.

State courts, however, wield broader power beyond traditional judicial decisionmaking roles, which Dickinson highlights as a source of their potential. Yes, state courts, like their federal counterparts, adjudicate cases and interpret constitutional rights. But they also make rules and perform functions—political and lawmaking—that overlap with or even counter legislatures in ways that federal courts don’t.

Justice Brandeis posited that a fundamental principle of federalism was that states were free to experiment with public policy innovations without risk to the entire nation. Scholars have taken issue with the metaphor. Charles Tyler and Heather Gerken argue that state officials face many obstacles to policy innovation, while interest groups and other third-party organizations fuel change. Nevertheless, states pursue tremendous amounts of policy innovation. Discussions of this innovation, however, often focus on policies enacted by legislatures and refined by state courts through judicial opinions.

Dickinson highlights a different way of understanding state courts’ role—as institutions and rule makers. Whereas Article III confines the institutional role of federal courts, many states lack such restraints. As Jonathan Marshfield recently explored in the Duke Law Journal, state separation of powers can be different and less constraining in terms of internal checks and balances. Moreover, state courts have wide berth to experiment with procedure. For example, many state courts make their own rules of civil procedure. These experiments can affect policy in underappreciated ways. As a topic for Dickinson to explore further, most state courts also regulate the bar.

Fundamental to Dickinson’s argument is that state courts—more than federal ones—are democratic agents. Dickinson emphasizes state courts’ “democratic pedigree,” including that many are elected, which can make them more like legislators than federal judges. State courts thus are more likely to function as democratic co-equals with other branches of government. Scholarship on federalism’s promotion of states as laboratories sometimes assumes a traditional and confined judicial role—as independent adjudicators of disputes “who uphold the rule of law, serve as a check on unwieldy legislatures and executives, protect constitutional rights, and when necessary, defer to the executive or legislatures to ‘administer faithfully the laws.’” While this judicial-review-centric perspective is true in some respects, there is more to how state courts and state judges function. Some state courts possess express powers that federal courts lack.

Dickinson’s prime examples arise in the areas of gerrymandering, exclusionary zoning, and eviction moratoria. Some states empower state courts to draw political district maps in response to unacceptable state legislative gerrymandering. Dickinson also highlights the famous New Jersey Mount Laurel doctrine, where state courts took over enforcing the fair-share obligation in housing after determining that the legislature had failed to do so adequately.

The last example—eviction moratoria—is particularly illuminating. For millions of Americans, the pandemic was socially and economically devastating. As unemployment rates skyrocketed, many tenants found it difficult or impossible to pay rent. This economic crisis disproportionately affected low-income households, especially in Black and Brown communities.

Dickinson recounts state court efforts to experiment with using their administrative powers to address the homelessness and displacement exacerbated by the pandemic. Eviction moratoria took several forms at the state and local government levels, coming from governors, state supreme courts, and state legislators (as well as federal actors). One early form in which state courts acted first was judicially imposed eviction moratoria. The Supreme Court of South Carolina, for example, paused all eviction enforcement and foreclosure actions and stopped accepting eviction filings, scheduling hearings, and issuing writs in March 2020, mere days after the governor declared a state of emergency. Other states also quickly adopted this mechanism. Some state high courts barred landlords from court to initiate eviction proceedings, creating an effective moratorium.

Dickinson sheds important light on the role of state courts as institutions, rulemakers, and gatekeepers in their impact on democracy, democratic legitimacy, and substantive policy. They play this role when acting as arbitrators in cases that involve key policy issues or the potential for restraining other branches of government. They also play this role in their own right—as keepers of the keys to the courthouse, architects of procedural rules, and guardians of access to and provision of legal services. With this Article, we can all better appreciate the vital role courts play in these aspects, both within their states and as exemplars for other states to learn from and replicate.

De-Othering Pro Se Litigants

Jun 14, 2024 Seth EndoAdd a Comment

Seth Endo

Recent debates over reforming civil litigation frequently involve questions about the use of empirical data, the value of critical approaches, and the access-to-justice gap (especially as it relates to pro se litigants). Roger Michalski and Andrew Hammond’s Mapping the Civil Justice Gap in Federal Court marries these themes, using judicial data to uncover the collective identity of pro se litigants through an exercise of critical cartography (i.e., creating maps that detect and challenge social relations of power which “create and perpetuate inequality and inequity”).

Understanding the demographics of pro se litigants is both practically and conceptually important. In 2021, more than 100,000 cases involved pro se parties, comprising more than 25% of the non-prisoner civil docket in federal courts. These litigants must navigate a system built for lawyers, raising meaningful policy and legal questions that are largely being addressed in the dark.

At its core, Michalski and Hammond’s project reminds scholars, courts, and policymakers that pro se litigants are not some category of other but real people who live in every type of community. They emphasize the role that courts play in determining the “relationship between civil litigation and inequality.” Accordingly, Michalski and Hammond encourage scholars to “focus on the people using the courts—all the people, not just those who have the benefit of counsel.”

In a forthcoming article, Zachary Clopton and Aziz Huq argue that judicial statistical data are underused by scholars and the general public. A new wave of scholarship already addresses this: for example, Merritt McAlister used data from the federal circuit courts to identify how “the distribution of appellate resources has been uneven across the country in ways that have a disparate impact on communities of color and poor communities.”

Michalski and Hammond’s study offers another excellent example of how new technological tools can lead to scholarly insights. They mine more than 2.5 million federal docket sheets for the addresses of non-prisoner pro se litigants. They combine the litigants’ locations with Census data about their communities to extrapolate race, economic status, educational attainment, urbanity, and other characteristics of the parties. While appropriately cautious and modest in their empirical conclusions given the methodological issues they identify, they offer three headline discoveries that challenge longstanding assumptions about pro se litigants.

First, pro se litigants share—or, at least, come from communities that broadly reflect—the demographics of the general population. In this way, the pro se litigants presumably are not different from represented litigants. As such, “the federal judiciary should not see these litigants as a problem of strange outliers to manage, but as a public worth serving.” Michalski and Hammond argue that this finding should encourage judges and lawyers to reflect on the “economic reality of most Americans” in which more than 90 million people are poor or near poor. Elite legal institutions must de-other pro se litigants, rekindling a sense of shared community and connection.

Second, communities of color produce more-than-expected pro se litigants compared with predominantly White neighborhoods. Michalski and Hammond suggest that efforts to address the needs of pro se litigants should target these non-White neighborhoods. Although more research is needed to determine the cause of the finding, they suggest this finding might reflect another symptom of the general racial bias endemic in our civil legal system and society.

Third, rural communities produce fewer-than-expected pro se litigants, especially given the lack of lawyers in such areas. Again, more research is needed to figure out exactly why there are lower rates of self-representation.

Mapping the Civil Justice Gap in Federal Court is one of my favorite sorts of articles. It makes significant conceptual and descriptive contributions. My biggest critique, as with any enjoyable piece of writing, is that it left to explore. Michalski has another article exploring the gender gap in pro se litigation, so this is just a small quibble. But additional questions remain. This is a rich area. I hope that other scholars, Congress, and the Administrative Office of the U.S. Courts will answer Michalski and Hammond’s call to action.

Standing, Still

May 17, 2024 Adam N. SteinmanAdd a Comment

Adam N. Steinman

When it comes to Supreme Court decisions on standing, the hits keep coming. Whether you view “hits” in the Casey Kasem sense or the Joe Louis sense may depend on your perspective. It seems like only yesterday that I posted a Jot about standing, and the Court has not let up—with more big decisions (like Murthy v. Missouri and the mifepristone case) on the way before the current Term draws to a close in June.

William Baude and Samuel Bray’s excellent article is not just about standing. It also is about remedies and other aspects of the judicial role. They recognize, of course, the inextricable relationship between standing and remedies; one element of Article III standing is redressability, after all. And they acknowledge—as others have—legitimate questions about whether current standards “have been cashed out in exactly the right places,” including whether they “should not be in a doctrine called or conceptualized as Article III standing, but instead should be handled by rules about causes of action, equitable jurisdiction, various civil procedure doctrines, and so on.” For Baude and Bray, the guiding principle should be this: “federal courts should be deciding only cases between the proper parties that result in proper relief.”

In urging this reset, the authors rib the Supreme Court for its all-too-frequent invocation of “mantras” about the relationship between Article III standing and separation of powers, asking whether such language reflects merely “the tautological point that because standing is a judicial construction of the requirements of Article III, and because the separation of powers comprises Articles I, II, and III of the Constitution, any violation of the doctrine of standing must also be a violation of the separation of powers.” Baude and Bray also keenly diagnose how the current collection of doctrines has prompted a dynamic where judicial intervention is a nearly automatic consequence of any significant action by the federal government. They show this vividly in discussing the standing of state governments to challenge federal policies—an issue they properly recognize as “especially important for the centrality of standing in the twenty-first century.” The pattern of blue-state attorneys general suing the Trump administration, followed by red-state attorneys general suing the Biden administration, has become “like a high school theater play on the last night of the performance, when everyone knows the lines but is so tired of saying them.” Combine that with the ability to obtain preliminary, nationwide injunctions in hand-selected challenger-friendly districts, and we end up with “a state of affairs where almost every major presidential act is immediately frozen by a federal district court.”

State governments are not always the plaintiffs in such lawsuits. But the state of affairs Baude and Bray describe has the added benefit of helping to explain the cognitive dissonance that can arise when judges are called upon to lay justiciability doctrines alongside their priors about the underlying substantive arguments at play in any particular lawsuit. Just a few weeks ago, the jurist who authored the Supreme Court’s decision in Clapper v. Amnesty International—denying standing to challenge the constitutionality of the massive federal surveillance program authorized by the 2008 amendments to the Foreign Intelligence Surveillance Act—expressed frustration during oral argument that to find a lack of standing to challenge the FDA’s approval of the abortion drug mifepristone would mean that “the American people have no remedy.” Will what’s good for the goose be good for the gander? It’s hard to predict whether judges will be guided by core views about the proper role and reach of the judiciary, by the impact of such issues on the immediate case at hand, or by some prediction of the likely effect on certain types of claims, litigants, or policies.

Baude and Bray argue for a more circumscribed judicial role across the board—regardless of the partisan valence of a particular lawsuit. And they provide a concise but extremely compelling summary and critique of issues that have taken central stage in recent years: state standing (as mentioned above), preliminary injunctions, national injunctions, and the one-good-plaintiff rule. The authors do praise some of the Supreme Court’s recent decisions as reflecting a more standing-skeptical position. One example is United States v. Texas, in which the Court concluded that states lacked standing to challenge the Biden Administration’s immigration enforcement guidelines. Baude and Bray are less convinced by Biden v. Nebraska, which found that one state (not Nebraska, despite the caption) had standing to challenge Biden’s student loan forgiveness program. They are encouraged, however, by the fact that both decisions decline to repeat the Court’s observation almost two decades ago that state governments are “entitled to special solicitude in our standing analysis.”

The authors close with a recognition that meaningful change may not come solely by recalibrating the particular doctrinal formulas. Baude and Bray also urge a different judicial “mindset” that “internalize[s]” standing as “a judicial virtue.” On this account, “[p]roper parties and proper relief help us have proper courts, that is, courts acting as courts.” They aptly cite Justice Kagan’s observation (from her Biden v. Nebraska dissent) that standing doctrine is an “edict” to the federal judiciary to “stay in its lane.”

At the end of the day, Baude and Bray are certainly asking the right question: which parties may properly seek what kinds of relief? Different jurists, scholars, and advocates may provide a range of different answers to this question. But we are more likely to get a just, coherent answer if we wrestle with that question directly.

The Uneven Impact of Mistreatment on Law Clerks

Apr 25, 2024 Jade CraigAdd a Comment

Jade Craig

Aliza Shatzman, the founder of the Legal Accountability Project (LAP) and the author of The Clerkships Whisper Network, has kicked off a national conversation about the clerkship experience and lack of accountability for judges who mistreat their law clerks. It is important to continue to refine the information available to law students and alumni considering applying for clerkships. The many people who have great clerkship experiences should describe those experiences “in the rosiest of terms.” But referencing Charles Dickens’ A Tale of Two Cities, Shatzman identifies the paradox: “the best of circumstances, the worst of circumstances.” A clerkship lives at the extremes – if it is very good, it is wonderful and a blessing, and if it goes very badly, it can be the worst work experience one has ever endured. The work environment often revolves around one person – the judge.

Mistreatment does not affect all clerks equally, but may vary with the personal identity of the clerk. Some difficult work environments make it difficult for the employee to disentangle the mistake from the employer’s negative or abusive reaction. The employee starts to believe that perhaps it is their fault or they deserved the mistreatment. An employer who is a serial abuser often suggests the employee deserves the mistreatment, avoiding accountability for their actions or their part in the conflict. The first reaction for many employees is to internalize the criticism and blame themselves, deterring them from reporting the experience.

The risk of internalizing mistreatment increases for people who have endured childhood abuse or past trauma, whether physical, sexual, verbal, emotional or otherwise. Shatzman and LAP’s Clerkships Database seek to democratize access to information about clerkship experiences. In the effort to diversify the ranks of law clerks, it is important to be mindful of the imbalance in the past experiences that many law school graduates of color carry into their careers. Black and Latinx children are more likely to have adverse childhood experiences, including trauma and abuse, than their white counterparts. Children who experience abuse often adapt by believing that they are responsible for and deserve the abuse.

The road to healing from this trauma should include what psychologists call “corrective experiences.” A potential clerk deserves access to information about a judge and the work experience in that judge’s chambers that helps them decide if this environment will be healthy for them personally given their background and what they need from an early legal employment experience.

Access to information about prior clerks’ experiences helps students and recent alumni make the best decisions about whether to commit to working for a particular judge. But that transparency must extend to information about how the judge’s behavior affects students from particular backgrounds. If the judge has a habit of making racist comments or an employee of color found the experience difficult because of their race, that information should be shared with potential clerks. Likewise if the judge is insensitive or disrespectful toward women or demeans the experiences of LGBTQ+ individuals. It is hard to admit that a judge would have such biases that shape how they relate to employees from certain groups. But judges are a product of society, susceptible to the same biases, even if the behavior does not rise to the level of discrimination in a legal sense.

If a potential clerk accepts a clerkship based on faith and the best available information, that clerk may not find support if something goes wrong. Shatzman explains that the “legal community has created a culture of silence and fear around the judiciary: one of deifying judges and disbelieving law clerks.” The power and prestige afforded to judges leads many attorneys, law professors, and others in the legal profession to believe judges can do no wrong. They fear calling out the behavior and admitting that the Emperor is wearing no clothes. A clerk who reaches out to a mentor for advice in the midst of the crisis may find an unreceptive ear, including a focus on identifying all the ways the clerk may have contributed to the judge’s behavior rather than validation of their concerns and advice on advocating for themselves or ending the clerkship early.

Chambers is a whole employment ecosystem. As Shatzman explains, a “judicial chambers’ structure is both isolated and hierarchical: Two to four clerks, perhaps a judicial assistant, and a powerful judge work long hours behind locked doors in stressful circumstances.” The experience resembles a small law firm, with the judge as the senior partner, the courtroom deputy as a legal assistant, and the two to four clerks as junior lawyers. But those junior lawyers have fewer options for addressing mistreatment, as the federal judiciary is exempt from Title VII.

A judge’s management style, rather than the clerk’s behavior, may be the greatest contributing factor to a clerk’s negative experience. Some judges may delegate to long-term staff—judicial assistant, courtroom deputy (for trial-court judges), and career clerks—a role in managing clerks’ experiences. That leaves a clerk little or no recourse when the judge fails to intervene to prevent misconduct. The judge has every incentive to protect the key staff member who has served the judge for 30 years but who makes clerks’ lives miserable or to believe a clerk the judge has informally placed in a leadership position over another clerk who raises a complaint. To do otherwise would call into question the judge’s judgment and require them to do the uncomfortable work of managing change. Potential clerks need information about the judge’s preference for such a system of indirect management and how well it functions.

The legal profession relies on hierarchy to manage behavior, whether within a 1,000-attorney law firm or a five-person judicial chambers. The risk of losing a job practicing law and having it sully one’s reputation in the legal community can lead many young lawyers to suffer in silence or tolerate mistreatment. But as a non-attorney once told me when I dealt with a difficult legal employment situation, “You never regret standing up for yourself. Even if you lose that job, one thing you will not regret is that you stood up for yourself.” Providing transparent information about clerks’ experiences with judges can help recent law school graduates avoid having to learn this lesson the hard way, in a work environment with little protection and great stakes.

The Pendulum Swings of Access to Justice

Apr 4, 2024 Robin J. EffronAdd a Comment

Robin J. Effron

Theories of procedural justice have long contained explicit and implicit assumptions about the status of parties in the American civil justice system. Procedural rules and proposed reforms reflect beliefs that some parties are well-resourced and powerful and other parties are under-resourced and otherwise vulnerable. For several decades, commentators focused primarily on the needs of individual plaintiffs who faced uphill battles of time, money, and procedural barriers in accessing courthouse justice to vindicate their rights. They portrayed defendants as jockeying for procedural advantages of avoidance—everything from jurisdictional defenses to rules of pleading and discovery to broad powers of summary judgment existed to shield defendants from a merits-based confrontation before a jury.

In the past several years, however, scholars have begun to focus on vulnerable defendants, a class of litigants whose relative weaknesses were rendered nearly invisible by focusing on how parties fare in federal court. Pamela Bookman’s Default Procedures examines state-court rules for default judgments, adding to the growing literature on state-court procedures that have enabled a small group of relatively powerful plaintiffs to run roughshod over the debtors and tenants comprising a significant portion of the defendants in state court dockets.

Building on other recent empirical research, Bookman’s article is rich in detail about state default procedures and their effects on average defendants. Bookman demonstrates the considerable variance among state default-judgment procedures and recent efforts in some states to reform those procedures in response to the new scrutiny.

Procedures range from a traditional adversarial approach of rubber stamping plaintiffs’ complaints when defendants default—because the defendants’ default is treated as a waiver, a concession, or a justification for to the punishment of judgment—to recent reforms that require plaintiffs to include detailed substantiation of their claims with their pleadings, which also must anticipate and rebut common defenses like the statute of limitations. Although the changing landscape makes the scope of the problem and the effectiveness of procedural interventions even harder to describe, Bookman’s comprehensive assessment adds to the growing arsenal of scholarly documentation of the state of the law and the scope of the problems with default procedures.

While contributing to the growing call for procedural solutions to the default-judgment problem, Bookman’s signature contribution is situating the problem and the solutions as a conundrum for theories of procedural justice. The problem stems from the nature of default judgment as a procedural tool in an adversarial system. Adversarial justice demands active and thoughtful participation from all parties to litigation. Procedural rules should encourage vigorous participation in litigation without incentivizing overuse or misuse of public judicial resources. Herein lies the puzzle: efforts to ameliorate default-judgment problems caused by abusive plaintiffs risk emboldening abusive defendants, the likes of whom will never fully disappear from the litigation landscape.

Bookman targets four key stages of default. The first two stages—notice and the entry of default and default judgment—theoretically contain sufficient safeguards notifying the defendant of the pendency of the action and provide an opportunity to appear in the lawsuit to signal the intent to defend on the merits. The second two stages—procedures to set aside a default judgment and procedures for enforcing a default judgment—provide opportunities for post hoc challenges. While each stage serves important purposes in promoting procedural justice, the vision of procedural justice as occurring within an adversarial system limits effective reforms.

Most critiques and proposed reforms view default judgment as a problem of participation. That is, appearance in a lawsuit is the sine qua non of dispute resolution. Courts deter willful absence with sticks and ameliorate absence borne out of the inability or impracticability of appearance with efforts to enhance notice and lower the logistical and pecuniary barriers to appearing in a lawsuit. More aggressive reforms target participation. They seek to increase court access or to change areas of substantive law in which plaintiffs easily obtain default relief in the first place.

Bookman imagines a world of default procedures in which litigant participation is neither necessary nor discouraged. Paying attention to a recent array of state reforms, Bookman concludes that these reforms must be part of a larger systemic reform in which courts or court-adjacent entities can process claims fairly. Such systems would maintain the continuing availability of default judgment as a remedy while ensuring that defendants’ potential responses and defenses are given their due, regardless of whether a defendant can or does make an appearance at the outset of the lawsuit.

Most importantly, such systems account for the high volume of claims filed and default judgments sought in state courts. Many reforms will target plaintiffs–requiring more robust substantiation and requiring that courts have the personnel and capability to detect when a plaintiff’s case lacks the basic indicia of a meritorious claim. While this shifts from traditional adversarialism, it does not deviate from judicial neutrality. Instead, these reforms replace the rubber-stamping procedures that currently tip the scales in favor of certain plaintiffs in the first place.

Bookman’s analysis implicitly acknowledges that transsubstantivity must fall by the wayside when designing these procedural reforms. The problems of rubber-stamp default judgments appear in predictable categories of state-court cases—debt collection and landlord-tenant disputes. (While Bookman’s article targets debt cases, she acknowledges the importance of extended the analysis and reforms to other areas of law including landlord-tenant). The American adversarial ideal has procedure operate (largely) independently of the substantive law claims being asserted. But default judgments demand a turn in the other direction.

The Mismatched Goals of Bankruptcy and Mass Tort Litigation

Mar 19, 2024 Maureen CarrollAdd a Comment

Maureen Carroll

By the end of this Term, SCOTUS must decide what to do about the mammoth Purdue Pharma bankruptcy settlement. If allowed to go forward, the $10 billion deal will not only resolve claims against the company, it will shield the Sackler family—the company’s former owners—from any further liability for their role in the opioid crisis. The deal has generated a great deal of discussion, much of it focused on the legality and wisdom of that third-party release. The authors of Against Bankruptcy take a broader view, asking a set of critical questions about the proper role of bankruptcy in the resolution of mass torts. “What’s to be gained and what’s to be lost by the turn to bankruptcy?”

The turn to bankruptcy represents a new attempt to solve a decades-old problem. Mass-tort defendants have long sought “global peace,” an end to the flood of litigation arising from their allegedly harm-producing conduct. Absent a procedural mechanism capable of reducing the flood to a trickle, a defendant might reasonably fear that settling one set of cases will merely encourage the filing of others, especially if it appears that many potential claimants have not yet come forward. That fear, in turn, can stand in the way of settlements that would put meaningful relief in claimants’ hands.

For as long as defendants have sought global peace, creative lawyers have deployed unorthodox aggregation maneuvers to try to provide it. To contextualize the recent turn to bankruptcy, the authors tour earlier innovations, explaining how each fell short of its goal. Defendants created “private, corporate forms of dispute resolution [that] dominated throughout the twentieth century,” but those systems depended on the voluntary participation of claimants and their lawyers, who eventually decided that the judicial system could deliver better outcomes. State Attorneys General created the “AG Multistate,” in which AGs filed separate but coordinated lawsuits in their state courts, but dissatisfied cities and counties undermined that approach by filing their own actions in federal court.

Meanwhile, in federal court, litigants attempted to use class action settlements and multidistrict litigation–sometimes separately, sometimes in combination–as vehicles for achieving global peace. Because the lawsuits pulled into an MDL formally retain their individual character, however, settlement without class certification requires the affirmative consent of each litigant, while the Supreme Court’s 1997 decision in Amchem Products, Inc. v. Windsor made settlement classes difficult in mass tort cases. When parties to the In re Opiates MDL attempted to circumvent those barriers, deploying a mechanism they called the “negotiation class,” the Sixth Circuit shut them down. That decision set the stage for the parties’ turn to bankruptcy.

Unlike state or federal courts, bankruptcy courts have the power to stay all pending lawsuits against the debtor, regardless of where the cases were filed. The court overseeing the Purdue Pharma bankruptcy proceedings issued such a stay—embracing “all state AG actions, class actions, and multidistrict litigation”— and it remained in place for several years. The authors posit that the stay not only facilitated settlement, it “created the leverage that made the more controversial aspect of the deal possible.”

The authors contextualize that controversial aspect of the settlement by tracking the evolution, through asbestos cases and onward, of allowing non-bankrupt individuals to take advantage of the finality that bankruptcy offers to the debtor. In the case of Purdue Pharma, this approach involved “third-party releases from all future civil liability for the Sacklers and a channeling injunction that funneled already filed lawsuits against the Sacklers into the Purdue debtor trust instead.” In exchange, the Sacklers—none of whom have declared bankruptcy—agreed to contribute $5.5 to $6 billion of their personal fortunes to the settlement. If global peace defines success, these maneuvers have succeeded—they have “enabl[ed] mandatory settlement of mass-tort victims’ claims against solvent nondebtors across all federal and state courts.”

But the authors persuasively argue that, in the context of mass tort litigation, success should mean something more than the efficient reallocation of assets. It also should account for claimants’ reasons for bringing these types of lawsuits, including accountability and the opportunity to be heard, and it should respect those claimants’ choices about where, when, and whom to sue. On those metrics, the state and federal court systems do not fully succeed, but bankruptcy does much worse. Among other things, because of a bankruptcy court’s power to stay all other litigation, a bankruptcy filing “has become a powerful tool for short-circuiting civil trials and the bad press that can come from pretrial filings, discovery, and trial,” which are “the principal opportunities plaintiffs have to tell their stories.”

Unlike state or federal courts, bankruptcy courts are not designed to adjudicate tort claims, which causes bankruptcy proceedings to fall short along other important dimensions as well. Consider the information-forcing function of litigation, which has value in public-health mass torts. In litigation about guns and tobacco, for example, the discovery process yielded important information about pervasive industry misconduct, “teeing up issues for legislative intervention.” Bankruptcy courts, by contrast, focus on information about the debtor’s financial health rather than the nature and extent of their wrongdoing. Moreover, while bankruptcy courts have the authority to order discovery-like disclosures, they also have the power to seal public records—a power that “seems to get overused.”

Overall, this essay does a masterful job of contextualizing the quest for global peace and explaining why the turn to bankruptcy challenges traditional litigation values. Perhaps most importantly, it urges us to consider more seriously and explicitly “the foundational goals of our public adjudication system” and to evaluate the extent to which mechanisms for resolving mass torts actually satisfy those goals. Without such an evaluation, the quest for global peace will eventually yield another procedural innovation, and “the conversation will begin afresh without ever reaching the core questions about what litigation in public-harms cases is for and how to protect it.”