Feb 24, 2023 Suja A. Thomas
They do justice differently in the UK. Although the United States based its constitutional right to a jury trial on the right in England, the right to a jury trial no longer exists in England in most civil cases including employment discrimination cases. For employment discrimination disputes, a three-person panel consisting of a judge, a lay person from the employee side and a lay person from the employer side decide the matter. The Tribunal decisions are published in an online searchable repository. This database is the subject of this excellent article, which examines the reason for and problems with such a publicly available searchable vehicle. In addition to giving us the opportunity to learn about this database, the article also leads us to compare the present US system to the UK’s.
The authors recognize that the rule of law there requires open justice, which in turn compels publication of judgments. This is also compelled by statute and related to the common law right of access to the courts. For over five years, Employment Tribunal decisions from England, Scotland, and Wales have been published online and thus been easily accessible to the public including employers. The database has been accessed by, among others, researchers and private companies.
The article poses the question of the extent to which data about judgments should be published. Most importantly, should names be published? The authors point out that elsewhere in Europe, using anonymous information is the usual practice. They emphasize that while the publication of judgments helps ensure access to justice, employers could use names found in judgments to exclude those individuals from jobs. Employees could also be discouraged from bringing claims because such information could be available and used against them in the future. The information could also affect future settlement negotiations with information that may not be complete.
The authors also describe issues with the database, including that all judgments are not published. Because of this, the accessed cases may not be representative of all of the cases. As a result, the database can skew studies, advice to employees, recommendations made to employers and negotiations between parties.
The existence of the database also creates general artificial intelligence (AI) concerns. AI can generate information from the database that can be used against employees, such as predictions on the characteristics of people who bring lawsuits against employers.
The authors go on to analyze whether the current law can adequately protect against abuses of the database. They conclude it cannot and argue for changes to the law. I mention two here. First, they recommend that the names of all parties should not be included. The exclusion of claimants’ names will prevent employers from discriminating on this basis. I do note one possible issue with anonymizing defendants’ names. Without the publication of this information, employers can commit violations that are shielded from easy view. With that said, Tribunal hearings are generally open to the public so there is some opportunity for public viewing of cases and accountability for employers. In addition to the recommendation of excluding names from publication, the authors recommend that employers be prohibited from taking into account an employee’s litigation history.
This study elicits some interesting comparisons between the UK and the US. While there is increasing public access to many employment decisions online in the US, the readily available one-stop shop in the UK is not comparable to what we have in the US. And however useful such a mechanism could be here in the United States, because the US does not utilize Employment Tribunals and instead uses widely dispersed federal and state courts, the creation of such a database would be more difficult in the US to say the least. Additionally, in the US, because over 50% of employment disputes are subject to arbitration, many employment decisions are not published in any form. Comparing the more transparent UK system to ours highlights some of the controversial issues in our own system, including forced arbitration in employment cases.
Feb 10, 2023 Jasminka Kalajdzic
The digital revolution has compelled us to review, and at times rethink, important parts of our law. From gig workers to social media, artificial intelligence to self-driving cars, technological advancements have resisted the mechanical application of rules developed in the pre-digital age. Copyright law offers one example. As digital aggregation technologies enable the reproduction of millions of copyrighted works, they test law’s capacity to define, address, and compensate for infringements – as a matter of both doctrine and procedure.
Enter the class action device. Although copyright scholars have debated how law should evolve to address new technological uses, Xiyin Tang may be the first to suggest that copyright class actions can achieve by private ordering what has eluded legislators. The Class Action as Licensing and Reform Device argues that copyright class actions have effected advancements in copyright law and will continue to play an increasingly important role in licensing and reform.
Tang analyzes fifty years of copyright class actions to make the point that this form of litigation can efficiently address the millions of copyright right claims involving streaming services, a feat that neither the market, the regulator, specialized courts, nor Congress could achieve on their own. In mounting this argument, Tang makes the provocative claim that these class actions are doing something quite different from typical mass-tort, discrimination, and consumer class actions – compensating for injuries defined by existing law and updating the law by filling the gaps exposed by new technology. Both legal proceduralists and copyright scholars should take note.
Tang begins by discussing how new technologies fail to fit old copyright paradigms. Simply put, it is impossible for digital aggregation technologies, such as Google and Spotify, to obtain permission from the thousands of individual copyright holders to reproduce their works legally. The alternatives fare no better. The Copyright Office, an anachronistic regulatory solution to a modern problem, cannot sustain its work-by-work licensing model in the face of large streaming platforms. Market solutions such as collective rights organizations have created different problems, including anti-trust prosecutions. Specialized copyright courts have been criticized by rightsholders. Individual litigation is costly and does not resolve infringements on an industry-wide basis.
The only large-scale solution for mass infringements is the fair use doctrine – the rule that permits use of copyrighted works for purposes of criticism, comment, news reporting, teaching, or research. It protects the public interest, absolves defendants of liability, and allows courts to avoid sticky problem of quantifying damages for past infringements and ongoing royalties for future use. Applying fair use in the mass aggregation context, however, extends the doctrine beyond the use of copyrighted content in the creation of new work to technologies that merely reproduce copyrighted works wholesale.
According to Tang, the class action device offers an under-researched way forward that avoids the problems of fair use without relying on legislative action and ongoing court supervision. She devotes part two of her article to the history of copyright class actions, describing a five-fold increase in such actions between 1990 and 2000 as compared to the previous five decades combined. Just as mass production of consumer goods and widespread harm led to the need for aggregate litigation in the last century, digital technologies that facilitate the copying of mass quantities of copyrighted works require more than what Judith Resnik calls “the familiar—but insufficient—single-file, laissez-faire, unaided civil justice system.”
Tang surveys the seminal copyright class actions of the 1990s and 2000s that filled statutory and common law gaps in “the lawless internet.” The first copyright class action against an internet service provider for the infringements of its users, Frank Music Corp v. CompuServe, led to a damages award, a licensing agreement for future royalties to the class, and releases for future claims. Subsequent lobbying by CompuServe produced a legislative carve-out for internet service providers who do not participate in the infringing conduct of users. The class action resolved the immediate dispute and led to industry-wide relief. A class action against Spotify similarly resulted in a settlement that compensated for past infringements and future royalties, while fashioning a forward-looking blanket licensing scheme that avoided the bottleneck of the Copyright Office. More importantly, the settling parties agreed to create a database to fill gaps in ownership data for music publishers. Follow-on legislation mirrored the best parts of the settlement, further proof of Tang’s theory that class actions are uniquely capable of acting as a catalyst for legislative change.
Part three offers four reasons the class action vehicle is well-suited to the copyright context. First, objecting class members play an important role in ensuring settlements are substantively fair. The epic Google settlement was rejected based largely on objectors’ arguments. The consideration of opposing views at settlement approval is preferable to a purely private bargain struck by two parties. Second, whereas individual licensing negotiations are not feasible, a class action settlement facilitates large-scale permissions. “Outside of fair use, only a class-wide resolution has the same effect of extinguishing all claims while also, unlike fair use, compensating smaller rights holders.” Third, the non-monetary components of the settlement have provided creative solutions to industry problems, such as the establishment of a publicly available musical works ownership database in the Spotify settlement. Finally, copyright class actions often lead to permanent legislative change because rightsholders have the incentive to seek the legislative corollary to the defendant’s release – legislation that protects them against future tech disruptors.
In refuting potential concerns in the final part of her paper, Tang identifies other advantages to class actions over other means of effecting change. For example, the hybrid public-private class-action settlement process has a better chance of defending the public policy of access to socially useful content than do rightsholders and public interest organizations in the political domain, where tech giants enjoy a distinct economic advantage. None of the usual critiques of regulation through litigation land as neatly in this category of cases because the record for follow-on legislation is strong.
Copyright class actions may not be alone in their ability to spur law reform. In Canada, class action litigation produced payday loans legislation and protection against mandatory arbitration clauses in consumer contracts. But Tang is correct that a small number of copyright class actions has had an outsized impact in this area of law, advancing the law and benefitting countless individual authors and artists. Tang concludes that “[a]ggregate litigation of copyright claims enables creators of all sizes to take advantage of a legal system that had previously been monopolized by the largest copyright holders.” The class action device was meant to serve this precise access-to-justice mission.
Jan 27, 2023 Aliza Shatzman
Jeremy Fogel, Mary Hoopes, & Goodwin Liu,
Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals (Nov. 30, 2022), available at
SSRN.
Diversity among judges affects diversity among law clerks. If what gets measured gets managed, California Supreme Court Justice Goodwin Liu opined at a recent Berkeley Judicial Institute event, the dearth of law clerk demographic data has precluded the federal judiciary from making strides toward diversifying appellate chambers. How diverse is the law clerk population? Not very, according to recent survey data by the National Association for Law Placement (NALP). The lack of diversity in one of the legal community’s coveted circles has implications not just for judicial decision-making, but also for the future of the legal profession. As we consider who rises to and through the profession—including to and through the judiciary—diversifying the profession starts with diversifying clerkship hires.
In Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals, retired Federal District Judge Jeremy Fogel, Mary Hoopes, and Liu provide readers with a rare window into one aspect of the opaque clerkship application process: circuit judges’ attitudes about and practices toward hiring diverse clerks. Relying on their relationships and stature as judges (and former clerks), the researchers collect candid insights about judges’ hiring decisions. Under the cloak of anonymity, judges explained that “There’s no monopoly over brains or qualifications; it’s a question of opportunity,” and “Diversity doesn’t mean a diminution in quality; it just means you have to be willing to look in non-traditional areas.”
The researchers conducted unrecorded Zoom interviews throughout 2020 to encourage candor. Participating judges had at least three years of appellate experience—this ensured a breadth of recent experience hiring clerks, although it limited the number of Trump appointees (three participated). Participants were neither randomly selected nor fully representative of the appellate bench. Minority judges, whose hiring strategies are of particular interest, were oversampled. The response rate was higher for Democratic than Republican appointees (71.4 percent versus 54.5 percent). The final sample of 50 judges represented 30 percent of active court of appeals judges, spanning all federal circuits with an average of fourteen years’ experience.
Judges shared their objectives for hiring; whether they consider diversity and, if so, what types; the practices they use to achieve their hiring objectives; whether they speak with their colleagues about hiring; and how best to engage their colleagues in conversations about diverse hiring. The study defined “diversity” broadly—not just gender, sexual orientation, and racial, but also law school, ideological, and socioeconomic diversity. Forty-three judges consider diversity when hiring clerks, although the types of diversity they value—and their methods for achieving this—vary. Many view their role in hiring law clerks as shaping the future of the profession and “training the next generation of attorneys.” As judges consider their “ensemble” of four law clerks, several opined about appellate clerkships “opening doors” for historically marginalized groups.
Judges who attended law schools outside the top 20 (“T20”) U.S. News and World Report rankings were more likely to hire clerks from outside the T20—76 percent of the non-T20 judges hired at least one quarter of their clerks from outside the T20, whereas 34 percent of the judges from T20 schools did. These judges sought to foster relationships between local legal communities and the bench and to develop local talent. One judge reasoned, “Whose life will [this clerkship] make a bigger difference in?”
Most judges assigned no weight or negative weight to ideological affiliation—several reported that American Constitution Society or Federalist Society on an applicant’s resume was a “warning sign” that the clerk would be “too partisan.” Other judges sought ideological diversity between themselves and their clerks. This is surprising, as studies suggest ideological alignment between judges and clerks. In fact, the researchers postulated, clerkship applicants sort themselves by applying to like-minded judges: judges hire like-minded clerks because those individuals apply. This ideological sorting is particularly pronounced among “feeder judges”—those who send large numbers of Supreme Court clerks—since Justices seek ideological fit.
Most judges sought gender, racial, and ethnic diversity. Republican appointees reported more trouble achieving gender balance than Democratic appointees. One judge remarked that “I’m not seeing a lot of women who would be drawn to the current Republican Party;” others observed that “far fewer female students are conservatives” and those “with good credentials get snatched up really quickly.” Questions of racial and ethnic diversity were more complicated. Most judges were “intentional” about this, engaging in “affirmative outreach” to “reconceptualize hiring.” Minority judges hired more minority clerks. These practices—and results—were particularly notable among Black judges. They went “out and about” in their communities—they attended affinity-group events at law schools; contacted diverse candidates they read about and encouraged them to apply; and conveyed to trusted law professors that they sought diverse applicants. Black judges, who represent just one eighth of circuit court judges, hire more than half of the Black clerks. Yet diverse judges alone cannot diversify appellate chambers.
The study fosters honest dialogue among judges about diversifying law clerk hiring. A “norm of silence” pervades courthouses; no judge wants to intrude into colleagues’ deeply personal hiring decisions. Yet many judges want to hire more diverse applicants and are interested in their colleagues’ hiring strategies. While judges might not respond well to “being told what to do” by outsiders, they listen to their peers.
Judges must take intentional steps to diversifying hiring. Relying on stereotypical credentials such as law school ranking, grades, and class rank will not achieve this. This study also has implications for judicial selection (diversity among judges affects diversity among clerks); ideological segmentation (clerkship applicants and feeder judges engage in this practice); and data transparency (more robust data are needed). The authors offer an organizational structure solution—a Clerkship Resource Liaison to serve as a conduit between judges and law schools to help them achieve their hiring objectives.
“The norm of silence will not change without a catalyst,” and judges respond to their colleagues’ opinions. As a fellow traveler in the law clerk advocacy space who understands the value of judges broaching difficult conversations with their peers, I hope Judge Fogel and Justice Liu will continue this dialogue in appellate courthouses. This topic, while “rarely broached within the judiciary,” is one of great contemporary interest among prospective clerks and the many stakeholders seeking to diversify the legal profession.
Jan 13, 2023 Jay Tidmarsh
Helen Hershkoff & Luke Norris,
The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline, 122
Mich. L. Rev. 1 (forthcoming, 2023), available at
SSRN.
Since Robert Cover’s 1981 article, many (including me) have accepted on faith that jurisdictional redundancy is a good thing. Redundancy is a feature of many complex systems. In the judicial context, redundancy creates competition among courts. According to Cover, this competition prevents ossification of the judicial process — whether that ossification arises from the self-interest of one system’s judges, from one system’s ideological capture or impasse, or from one system’s resistance to innovation. The principal cost of jurisdictional redundancy, especially in the context of state and federal courts, is its inherent messiness or inefficiency; an array of often complex doctrines polices the lines between systems (think of the rules of subject-matter jurisdiction, abstention, and full faith and credit, to name three). Concurrent jurisdiction between federal and state courts has a pedigree nearly as old as the Republic, its inefficiency often seen as a necessary cost to achieve the benefits of jurisdictional redundancy.
This sobering article by Helen Hershkoff and Luke Norris adds a new set of factors — how corporations have exploited the diffusion of adjudicatory power to evade accountability for their actions — that weaken the case for redundancy. Worse, the authors seek to demonstrate how this corporate abuse of jurisdiction bleeds over from preserving economic power to creating political power, establishing the conditions for oligarchic authority that undermines American democracy and self-government.
In many ways, this article follows in the vein of scholars such as Burbank & Farhang, Staszak, and Chemerinsky, each of whom has documented how the Supreme Court has used procedure to kneecap substantively progressive legislation or legal claims. But this article adds new dimensions.
It begins by tracking corporate efforts in the late nineteenth and early twentieth centuries to crack open access to federal courts, which were perceived as more hospitable to corporate efforts to achieve a national market largely unfettered by regulation. That effort was single-minded: establish jurisdictional and procedural pathways to federal court. Switching to modern times, Hershkoff and Norris show that corporations have not changed their goal of finding forums where they are least subject to regulation and accountability.
But the landscape changed after the New Deal, as corporations found themselves subject to federal regulation, typically enforceable through private rights of action (as Farhang documented). In this environment, corporate strategy becomes more diffuse. In some areas, it makes sense for corporations to gain a federal forum and “lock in” federal jurisdiction; the authors cite removal doctrine, especially the recent rise of fraudulent removal and snap removal. In other areas, however, it makes sense to “lock out” federal courts to prevent them from adjudicating disputes: see the Supreme Court’s muscular support for a broad reading of the Federal Arbitration Act, which sends many consumer and employee disputes to corporate-friendly arbitral forums. And in still other areas, it makes sense to “throw out” cases to administrative agencies; here (in their least helpful example) the authors cite primary jurisdiction, which does not end federal-court review but delays enforcement of federal law, lodges fact-finding in a possibly more favorable forum, and drives up costs for opponents.
The authors’ basic claim that procedure is being used to frustrate substantive enforcement is not itself novel. Nonetheless, the concepts of “lock in,” “lock out,” and “throw out” provide a useful lens for thinking about the Supreme Court’s recent procedural rulings. What makes the authors’ contribution especially powerful is their attempt to link these efforts to a possible ongoing transition in the United States from democracy to oligarchy.
According to the authors, corporations are using their economic power to achieve unequal access to courts, a political resource. While the authors are cautious to note that unequal access to political resources does not itself create an oligarchy, unequal access “concentrat[es] political opportunities in the ‘haves’” and therefore limits the opportunities for democratic contestation. In turn, a more oligarchical structure allows a minority to maintain control without the assent of the majority and creates the conditions for the de-democratization of the United States. The jurisdictional abuse that helps to create the “oligarchic courthouse” (to use the authors’ phrase) may not itself signal the end of American self-government, but it must be seen as a piece of other movements — such as efforts to undermine free and fair elections and laws that consistently favor the wealthy and powerful — that close off the majority’s will and threaten an end to American democracy.
Hershkoff and Norris also seek to answer the evident question: granting that corporations want an oligarchic courthouse, why have judges abetted efforts that could undermine American democracy? They offer numerous reasons — organizations (such as the Federalist Society) with a mission of shaping pro-corporate judicial thinking, Democratic acquiescence by appointing judges with corporate and prosecutorial backgrounds, and a narrative about litigation abuse that has captured institutional actors such as judges and procedural rulemakers.
That the connection between corporate efforts to avoid accountability and the conditions establishing oligarchical power is more theoretical than clearly proven presents the article’s weak point. In terms of the threat to democratic values, the difference between election denial and a corporation’s snap removal of a lawsuit is night and day, and there is no suggestion that corporations condone election denial. Nonetheless, the stakes of an oligarchic courthouse are high, and defenders of democracy ignore these jurisdictional abuses at their peril. At a minimum, if the authors are correct, we must reassess the value of jurisdictional redundancy. Redundancy presents a tool that powerful interests can use to shop around for their best forum — setting in motion the anti-democratic tendencies the authors describe.
Hershkoff and Norris offer a bleak assessment of where we are — of where courts, and especially the Supreme Court, have led us. They provide no rosy solutions. They are pessimistic that reforming jurisdictional rules will get us out of this conundrum; such reform will be hard to achieve, and corporations will adapt to the new rules, as they did after the New Deal. They suggest that law professors alert their students to the democratic values at stake in dry jurisdictional doctrines. They recommend the construction of networks that can produce a counter-narrative focused on the value of procedure and litigation for the “have-nots.” And they argue that the preservation and expansion of democratic power should lie at the center of jurisdictional design.
Good ideas all, but are they enough?
Cite as: Jay Tidmarsh,
Jurisdictional Abuse and American Democracy, JOTWELL
(January 13, 2023) (reviewing Helen Hershkoff & Luke Norris,
The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline, 122
Mich. L. Rev. 1 (forthcoming, 2023), available at SSRN),
https://courtslaw.jotwell.com/jurisdictional-abuse-and-american-democracy/.
Dec 7, 2022 Roger M. Michalski
Electronic filing has been a mainstay of federal practice for twenty years. It makes filing more convenient and cheaper than regular mail or personal delivery. The Federal Judicial Center (“FJC”) learned from federal clerks of court that pro se litigants sometimes can use the federal courts’ Case Management/Electronic Case Files (CM/ECF) system and sometimes not. In response to a request by the federal rules committee’s working group on pro se electronic filing, the FJC conducted this study of where, when, and how pro se litigants can electronically file.
The FJC reached out to seventy-nine [out of 190] clerks of court, all but one of whom agreed to participate in [the] study. Using “loosely structured interview[s]” the FJC asked each a range of questions, including whether pro se litigants, prisoners, and unrepresented bankruptcy filers (e.g. pro se creditors) can file electronically; what they must do to become electronic filers; whether pro se litigants can initiate cases directly in CM/ECF; whether the court ever accepts filings by email, fax, or electronic drop box; signature requirements; the existence, location, and use of physical drop boxes; and how they time-stamp drop box items.
The main contribution of this article is to provide a richly textured, nuanced, nitty-gritty account of electronic filings by pro se litigants. It takes time and care to examine the differences between submitting a document to a court and filing a document; between initiating a case and filing in an existing case; between NextGen CM/ECF and previous generation CM/ECF; among civil, criminal, and bankruptcy cases; and between prisoner and non-prisoner pro se litigants.
The study also distinguishes filings in the courts of appeals (less complicated and more permissive of pro se filings) from filings in district and bankruptcy courts (generally more complicated and less permissive). About half of districts allow non-prisoner pro se litigants to use CM/ECF to file in existing cases with individual permission. About one in ten dispense with the need for advanced permission for existing cases. Slightly more district courts do not permit pro se litigants to use CM/ECF. One in five district courts are silent on these questions. Where permission is required, the presiding judge typically decides (on formal motion), although some districts allow the clerk’s office to decide on less formal processes.
These variations might be explained, in part, by courts having different experiences and expectations concerning pro se litigants who might struggle with court procedures in general and CM/ECF in particular. The pro se litigant’s lack of experience, lack of potential Bar sanctions as deterrent, mental health issues, and occasional vexatious litigation behavior might make some courts more cautious about granting pro se litigants electronic access. As the FJC reports, however, courts that have granted access have “reported fewer problems than expected.”
Prisoner pro se litigants typically cannot file using CM/ECF because they lack internet access, forcing them to use regular mail. But courts have arrangements with some prisons that allow or even mandate electronic submissions. Prisoners present filings to a prison librarian who scans and transmits them to the court. On the return, some prisons accept electronic notices on behalf of prisoners and then convert filings to paper documents. In other prisons non-prisoner and court filings must still be served by regular mail. There is again a hopeful note in this variation: courts that permit electronic communications with prisoners “reported a reduction in controversies over the reliability of prison mail.”
Beyond these and other summary findings, the article includes multiple-paragraph accounts for each of the seventy-eight clerks’ offices that participated in the study.
This article represents a tremendous amount of research and care. Few other researchers can dream of having such thorough access to and participation by so many federal courts. This allows the article to develop a nuanced court-by-court description that provides a better sense of the rich texture and diversity of approaches to pro se litigation, the existence and extent of experimentation, and embedded value judgments. As such, the article complements and rounds out the important work of scholars such as Andrew Hammond who study court-by-court how federal courts interact with pro se litigants.
The article also provides insight into the research the federal judiciary and the rule-makers use in their decision-making. This is not the only way to do research. But academic researchers frustrated with their lack of impact might find here useful pointers. That said, it can be jarring for someone accustomed to reading law review articles all day to encounter a study overflowing with normative implications that are never cashed out and barely hinted at. This is a study about the meaning of access to justice in the most concrete, practical, nitty-gritty way, and yet the authors take great care not to evaluate or situate. They do not hit the reader on the nose with policy recommendations. That is equally refreshing and frustrating.
The article is worth a careful read for all these reasons, as are the many studies the FJC publishes each year. Academics are not the FJC’s primary audience. But we have much to learn from its insights, resources, and alternative approach.
Nov 22, 2022 Sergio J. Campos
Legal scholarship comes in a variety of forms. One form that I like lots is the law review online supplement. Online supplements allow scholars to address cutting-edge issues without the delay of the normal publication process. The submissions also tend to be shorter and thus more accessible, not only to scholars but to practitioners, judges, and policymakers in the field. A good piece will not only efficiently discuss an emerging legal trend but suggest a legal reform or solution that helps out on-the-ground practitioners sooner rather than later.
Michael Francus’s wonderful piece on the Texas Two-Step hits these marks. The piece, which is a joy to read, discusses the emergence of the “Texas Two-Step” as a procedure to deal with mass tort liability. For the uninitiated, defendants often use bankruptcy to resolve mass-tort liability.
This is not new as bankruptcy courts handled famous mass torts involving asbestos and the Dalkon Shield. But defendants have expanded the practice beyond products liability, such as the Boy Scouts’ liability for sexual abuse in its ranks or Purdue Pharmaceutical’s liability relating to the opioid epidemic.
Bankruptcy offers speed and comprehensiveness. Unlike traditional litigation, bankruptcy proceedings tend to be much, much faster–think months rather than years. And unlike complex procedures such as multidistrict litigation (“MDLs”) or class actions, bankruptcy allows a defendant to resolve all claims (state or federal, present or future) in one non-opt out proceeding.
The turn to bankruptcy has introduced some concerning innovations. One such procedure is the Texas Two-Step, famously demonstrated by the bankruptcy proceedings involving Johnson & Johnson’s baby powder. The talc in J&J’s baby powder is alleged to have caused cancer in thousands of cases, and the claims filed have threatened J&J with massive liability. Although initially consolidated as an MDL, J&J turned to the “divisive merger” under Texas law, under which the company splits into two. J&J created a new entity, LTL Management, and assigned all of its talc liability to that entity (Step 1). LTL Management then filed for bankruptcy (Step 2). J&J assigned its remaining assets to the other half of the split but agreed to indemnify LTL Management for all of its talc liability.
On the surface, the Texas Two-Step looks innocuous—J&J’s assets remain to make the talc claimants whole. But the talc claimants cannot sue J&J thanks to a third-party release, and only the shared officers of the divided companies (not the claimants) can enforce the indemnification agreements. Full recovery on paper becomes illusory in practice.
In fact, Francus argues, this looks like a fraudulent transfer, where a debtor shields its assets pre-bankruptcy by assigning them to nonbankruptcy entities. But “a fraudulent transfer challenge takes significant time and expense,” deterring challenges or producing suboptimal settlements.
Francus offers an alternative that civil procedure scholars can appreciate—good faith challenges. Fraudulent transfer challenges “must be litigated in an adversary proceeding,” requiring significant development through “service, pleadings, counterclaims, discovery” and the like. A good faith challenge can be done at the pleading stage in bankruptcy, without discovery or trial, a sufficiently early stage that can “negate the tactics of the two-steppers.” Francus discusses some possible “good faith” challenges and notes the challenges presented by forum shopping, where debtors choose forums that make such “good faith” challenges hard to make. But Francus’s clever appreciation of cost and delay made this civil procedure scholar very proud.
This is an excellent piece. It boils down a complex issue into something digestible for nonbankruptcy scholars and practitioners, while providing a solution to the resulting problems. Throughout the piece, Francus cites and hints at the extensive literature on the issue if one wants to research it more. Francus knows this literature by heart, but boils it to the essential, providing a great contribution to the literature and to practical life. This is a good combination of theory and practice, and I like it lots!
Nov 7, 2022 Robin J. Effron
Sir Winston Churchill famously remarked that “democracy is the worst form of Government except for all those other forms that have been tried from time to time.” The witticism endures because the flaws and failures of democracy (in its many forms) are obvious and omnipresent, yet it is hard to defend replacing democracy with pretty much anything else. The same might be said of modern aggregate litigation: it is the worst form of resolving mass harms except for all those other forms that have been tried from time to time. As with democracy, paradigmatic aggregate litigation (class actions and multi-district litigation (MDL) actions) seem to be under perpetual threat, as critics, lawmakers, rulemakers, and judges seek to limit their scope, weaken their effectiveness, or supply alternative means of resolution altogether.
Bankruptcy has emerged in the past few decades as a viable forum for global resolution of mass claims that once were within the exclusive province of state and federal class actions and MDLs. As Lindsey Simon documents in Bankruptcy Grifters, using bankruptcy to aggregate and resolve certain mass harms originates in a fundamental problem of outsized litigation. Sometimes, injured claimants’ present and future claims threaten to overwhelm a defendant who is already insolvent or would be pushed into insolvency in satisfying the claims. This is particularly troublesome in cases involving long-term harm or exposure to toxic products, where the earlier claimants may exhaust the defendants’ existing funds, leaving nothing for later claimants. Bankruptcy offered an attractive forum for aggregating and resolving or settling such claims, and courts cut their teeth on bankruptcy-as-mass-tort-aggregator in the large asbestos cases that overwhelmed courts in the second half of the twentieth century. But while bankruptcy offers limited solutions to aggregate litigation problems in certain situations, the tools to assist the resolution of claims against insolvent or genuinely struggling defendants have attracted an increasing number of “grifters.” Bankruptcy Grifters is a must-read for anyone interested in modern aggregate litigation. It is no longer enough to master the ins and outs of class actions and MDLs; attorneys and scholars must possess a command of bankruptcy tools and procedures that have become an essential element of the aggregate-litigation landscape.
Simon begins with a thorough and compelling description of how defendants can use procedures such as channeling injunctions and nondebtor releases to siphon mass-tort litigation out of state and federal courts and into settlement trusts and bankruptcy mechanisms created by bankruptcy proceedings. These efforts do not entail unjust procedures and outcomes; Simon praises and details judicial and litigant efforts to create solutions within Chapter 11 proceedings, providing an assuring array of procedural protections to mass-tort claimants. But the titular “bankruptcy grifters” too often seek (and bankruptcy judges approve) access to tools and remedies reserved for struggling debtors, in such a way that minimizes procedural protections and potential recovery for present and future mass-tort claimants. Simon offers compelling critiques, leading to a set of cogent and practical reforms that Congress and courts should make to retain the benefits of bankruptcy as aggregator while ensuring greater fairness and better outcomes for claimants.
One must note the larger background against which these developments have taken place—the real shortcomings of other aggregate litigation. Perhaps the door has been so open to bankruptcy grifters because other forms of aggregate litigation have become so difficult, restrictive, and unappealing; judges administering plans with broad relief and nondebtor releases view bankruptcy aggregation as Churchill viewed democracy—the worst form of aggregation except for all the others that have been tried.
But this is not a particularly fair or accurate view of class actions, MDLs, statutory settlement funds, and other forms of aggregation, although it is hard to ignore their shortcomings and failures, which have increased over time. State and federal class actions often require a degree of commonality that forecloses treatment of mass harms raising individualized inquiries into causation and damages. The jurisdictional and applicable-law hurdles for class actions make aggregation and resolution fractured and difficult. MDLs do not fare much better. To the extent one critiques aggregation in bankruptcy for the overreach of equitable power, inherent powers of the court, and ad hoc procedure, MDLs are the poster children for (seemingly) inscrutable proceedings and resolutions. While Rule 23 and similar state and federal law provisions codify procedural protections for claimants and absent parties, governance problems are well-documented. Finally, critics view the judgments and settlements of many class actions and MDLs as far from optimal. Dismal settlement participation rates, for example, suggest that class actions do not achieve the goal of full or adequate compensation to harmed parties.
Simon rightly encourages Congress and courts to implement some “gatekeeping for grifters” by improving the formal and informal mechanisms for protecting claimants in bankruptcy. But other forms of mass litigation cannot limp alongside, positioned as vastly superior alternatives. Otherwise, the grifters might drift back, exploiting the weakest of the systems and finding the path of least resistance.
Oct 24, 2022 Christine Bartholomew
Peter Ormerod,
Privacy Qui Tams, 98
Notre Dame L. Rev. __ (forthcoming 2023), available at
SSRN.
Qui tam actions have a long history as a valuable litigation structure to vindicate collective harms. A qui tam action obviates the need for class actions while providing a mechanism for private enforcement. The qui tam plaintiff is a private individual—often called a relator—who files suit to redress a societal wrong. The government has a limited period to intervene and take over the litigation. If it does not act, the individual steps into the government’s shoes and serves as a regulator.
Although the procedure traces to thirteenth-century England, modern qui tam statutes authorizing this private enforcement variant are exceedingly rare. Peter Ormerod hopes to revitalize their use to enforce privacy rights in Privacy Qui Tams. Ormerod posits qui tam as “a novel enforcement structure with deep roots and great promise.” He builds a careful and compelling argument to live up to that claim. Discussing substantive and procedural law, without giving either component short shrift, is no small feat, yet Ormerod manages the challenge artfully.
The Article begins with a theoretical and doctrinal primer on privacy law. Ormerod summarizes scholarly taxonomies of “information capitalism” to highlight the ineffectiveness of the new wave of privacy laws. These laws lack a clear ideological foundation and create unintended enforcement barriers. The rapid expansion of surveillance infrastructures precipitates the need for a new approach to privacy law before the United States becomes entrenched in the “status quo.”
The law has not responded to the shift from an industrial to an informational political economy. The law cannot respond to new technologies that do not fit its archaic structures, which were designed to stop industrial, rather than digital, threats. “[E]ven privacy laws that hint at superior substantive provisions are threatened by an inability to enforce them effectively.” He specifies how challenges to public and private enforcement have left privacy law impotent, citing three factors: (1) enforcement agencies are severely understaffed and underfunded; (2) industry players have too great an influence on the politics of privacy; and (3) when public enforcers do act, the remedies they seek are too meager to compensate or deter.
To illustrate his point, Ormerod examines the Federal Trade Commission. The Commission has adopted a “meek and unimaginative regulatory strategy” to privacy concerns. In 2021, the Supreme Court exacerbated the problem in AMG Capital Management v. FTC, holding the FTC lacks the statutory authority to obtain equitable monetary remedies. While Ormerod concedes other agencies have authority to impose monetary penalties, such “penalties pale in comparison to the businesses’ profit-generating capacity.”
The Article then explains the shortcomings of class-action private enforcement. Federal laws such as the Fair Credit Reporting Act and the Telephone Consumer Protection Act authorize private rights of action, allowing individuals to vindicate their rights and the rights of others. But “over the past thirty years, the Supreme Court has sharply limited individual plaintiffs’ ability to vindicate legal rights conferred on them by Congress.” Forced arbitration agreements, narrow constructions of Article III standing, and restrictive interpretations of FRCP 23’s class certification requirements have crippled private enforcement.
Given this state of “ineffective public enforcement and infeasible private enforcement,” Ormerod’s deceptively simple solution would authorize private citizens to bring privacy qui tam suits. It is in this proposal section that the article exceeds expectations. Privacy is not merely an “individual, fundamental right” but a “common pool” of “related interests,” and hence an appropriate subject for qui tam actions. In this theoretical framework, privacy is vital to “social functioning” and essential for a functioning liberal democracy. Qui tams offer the natural solution to the enforcement problem.
Ormerod offers concrete details about privacy qui tams. He proposes statutory language allowing an individual to sue for civil penalties to protect collective privacy rights in state and federal court. Any legislation must negate standing concerns by “studiously avoid[ing] any suggestion that the relator’s compensation is intended to remedy a personalized injury or that the relator represents other aggrieved parties.” The government can intervene and take over litigation within 60 days, but the relator would receive a modest percentage of any recovery. If the government opts against intervening, the relator continues with her suit and receives a higher percentage of any disgorged profits, along with fees and costs.
From there, Ormerod addresses likely criticisms. He acknowledges some may view his proposal as too “exotic and unprecedented” for the judiciary. Congress may be wary of contributing to potential litigiousness. There will be industry opposition and the “inevitable regulatory capture” that occurs in our neoliberal society. But in confronting such challenges, Ormerod persuades. He walks through the counterarguments in full and responds without over-promising. His proposal becomes a modest, moderate strategy with viable potential to make a difference.
As a staunch advocate of private enforcement, I approached this piece with doubt. On questions of private and public enforcement, my gut reaction is to reform and strengthen class action procedures. Regarding privacy claims, however, Ormerod convinced me that qui tam actions are worthy of close consideration.
In one of my favorite quotes, Representative John Dingell stated, “I’ll let you write the substance…you let me write the procedure, and I’ll screw you every time.” Ormerod left me wondering if this quote needs revision—“If you let me write the procedure, I’ll get to vindicate substantive rights.”
Oct 10, 2022 Linda S. Mullenix
William S. Dodge, Maggie Gardner, & Christopher A. Whytock,
The Many State Doctrines of Forum Non Conveniens, 72
Duke L.J. __ (forthcoming 2023), available at
SSRN.
If there is a topic in the whirlwind course that is now Civil Procedure that law professors give relatively short shrift to, it is the doctrine of forum non conveniens. Sandwiched among personal jurisdiction, venue, and subject matter jurisdiction, forum non conveniens is the fly-over country of procedure land. Procedure teachers typically have enough time to hit the highlights: Gulf Oil Co. v. Gilbert and Piper Aircraft v. Reyno. This cursory exploration of forum non conveniens usually ends with the passing observation that states, too, have their own doctrines of forum non conveniens.
Dodge, Gardner, and Whytock have undertaken the definitive study of state doctrines of forum non conveniens, which I view with no small degree of admiration. The authors are to be commended for delving into the largely ignored landscape of state procedural law, which is always a challenging task. Their study answers practically everything you might ever want to know about federal and state forum non conveniens and provides law professors with substantial data to voice something more than passing reference to state doctrines. More importantly, the authors locate their findings in a conversation about procedural federalism—how courts and rule makers spread procedural innovations throughout the state and federal systems through a process of diffusion.
The Many State Doctrines of Forum Non Conveniens accomplishes four goals. The article debunks commonplace myths about the origins of forum non conveniens in federal and state courts. It sets forth an exhaustive survey of forum non conveniens in fifty-one jurisdictions. The study comprehensively analyzes differences among state doctrines and the reasons for and consequences of those differences. Finally, the paper contextualizes its findings in a social science framework of procedural federalism, defined as the set of relationships between federal and state actors affecting the development of procedural rules. This section challenges federal courts scholars to consider the ways in which state and federal procedural doctrines arise and interact to affect dispute resolution in a dual court system with overlapping jurisdiction.
The authors provide much surprising history. They debunk the myth that federal and state courts routinely recite, that forum non conveniens is an ancient doctrine with deep roots in the common law, rather than a twentieth-century creation. When the Court decided Gulf Oil in 1947, nine states acknowledged judicial discretion to dismiss cases. Georgia, Montana, Oregon, Rhode Island, and South Dakota did not adopt forum non conveniens until the twenty-first century, while Idaho has no such doctrine. States originally limited forum non conveniens dismissals to international or domestic foreign-cubed litigation (where the plantiffs, defendants, and events are outside the forum state). And there is no one doctrine of forum non conveniens among states, but much variation.
Their empirical findings offer a tour-de-force survey of forum non conveniens doctrines in the fifty states and the District of Columbia. It begins with an engaging narrative of the origins of forum non conveniens–too many foreign ships and crews in American ports seeking access to federal courts to resolve claims. This segues to the gradual state court adoption of limited notions of forum non conveniens, largely centered on the status of the parties and claims. The authors focus on Federal Employers’ Liability Act (FELA) actions as a twentieth-century crucible through which state courts considered discretion to decline jurisdiction over actions involving no state residents or in-state claims and how FELA contributed to the problem of plaintiff forum-shopping. The article then discusses Piper Aircraft, which expanded the doctrine to international foreign plaintiffs suing in-state local domestic corporations; state courts followed Piper’s reduced deference to foreign plaintiffs’ choice of forum. Finally, the authors consider how state tort reform movements sought to expand forum non conveniens through statutes intended to override judicial reticence to apply the doctrine, particularly in foreign personal injury litigation.
The authors next analyze the similarities and differences among state doctrines compared to federal law, finding a significant number of states “have chartered independent courses.” Thirty-three states and the District of Columbia follow the basic federal model, while one-third of states diverge from the federal model in one or more significant ways; this suggests that federal procedural law exerts a “gravitational” pull on the states. But their findings do not suggest “rampant mimicry” among the states. Five states have eliminated the federal threshold requirement of an alternative available forum; some states differ in the deference to be accorded to the plaintiff’s choice of forum; and nine states differ from federal law in the balancing of factors. Six states exclude from forum non conveniens local plaintiffs and/or local causes of action, or both.
In view of this empirical data, the authors locate the discussion about forum non conveniens in the broader context of procedural federalism. This discussion has much to recommend to federal courts scholars with scant familiarity with this political science literature. They apply lessons from political science policy diffusion theory to identify what drives convergence and divergence in procedural law development. They discuss how courts with concurrent jurisdiction assert hydraulic pressure, competition, momentum, and emulation to adopt or reject procedural rules or doctrines. This can inspire cross-doctrinal comparisons in other areas of procedural law. It recommends a different approach to procedural history than federal courts scholars currently embrace, highlighting instead a dynamic and iterative evolution of doctrinal reforms.
Sep 26, 2022 Steve Vladeck
There is almost nothing positive to say about the Supreme Court’s cryptic 2006 ruling in Purcell v. Gonzalez. In a short and unsigned ruling that styled itself as attempting to avoid the risks of election confusion, the Justices handed down a “principle” for how federal courts should behave in late-arising election cases: courts should generally refrain from changing the rules governing elections as Election Day approaches. The basic import of Purcell is to encourage trial courts to avoid enjoining election rules and procedures that they otherwise might if the election is nigh—and to encourage appellate courts to stay any such injunctions. Purcell is not an argument against the power of lower courts to provide remedies for unlawful election laws; rather, it is an argument against allowing injunctions of election laws to go into effect too close to elections.
At first blush, that principle seems plausible enough. Court orders—especially competing court orders—changing the rules in the run-up to Election Day can cause chaos, risking not just disenfranchisement of confused voters, but headaches for election officials tasked with administering an election and tallying results under shifting legal foundations. Indeed, perhaps the best defense of Purcell is that it was the Supreme Court’s attempt to introduce rigidity into an area in which the Justices believed that there is too much discretion—to tightly circumscribe the power of courts as Election Day approaches. But in the 16 years since Purcell was handed down, numerous problems have emerged with its “principle.”
Perhaps no series of cases better illustrate those problems than the Supreme Court’s handling of election cases in 2020 during (and arising out of) the COVID pandemic. In Purcell in Pandemic, Wilfred Codrington III uses those decisions to illustrate some of Purcell’s most significant shortcomings.
On its own terms, Purcell never explained when it is “too close” to an election for courts to intervene. In Purcell itself, the Ninth Circuit injunction came 33 days before the Arizona election—far enough out to seemingly abate any confusion concern (the Supreme Court’s decision, in contrast, came just 18 days before the election). But if 33 days is too close, what about 43? Or 63?
Although the unsigned opinion in Purcell alluded to “considerations specific to election cases,” it never explained why an election-specific rule was needed. Why wouldn’t the traditional standards for injunctions—and for stays of injunctions pending appeal—suffice? When a district court enters an injunction, whether that injunction should be stayed pending appeal depends upon a series of factors, including the harm that both parties would suffer from a ruling in either direction and how the public interest is impacted either way. Those traditional factors are supposed to be “balanced,” an invitation to courts to assess which harm is worse—the harm to plaintiffs of having to comply with potentially unlawful voting rules or the harm to everyone else of blocking those rules on the eve of the election.
But in a series of cases involving district court rulings making it easier for voters to cast absentee ballots in the 2020 primary and general elections, the Justices froze those rulings even in contexts in which it was the Supreme Court’s decision, not the lower-court injunction, that was likely to cause confusion. In one especially revealing case from South Carolina, the Court stayed a district court injunction against a witness signature requirement “except to the extent that any ballots cast before this stay issues and received within two days of this order may not be rejected for failing to comply with the witness requirement.” In other words, the validity of votes without witness signatures that were cast right before the Court’s ruling would turn on when they were received by state election officials—a matter quite obviously beyond the control of the voters. Three Justices would have stayed the injunction as to all votes, disenfranchising thousands of voters who had already cast ballots while an injunction had been in effect.
Moreover, it did not have to be this way. Purcell could have identified a window (say, 60 days) before the election and instructed courts to view changes to the rules by any relevant actor with presumptive skepticism. By instead treating the election law at the moment it reaches the district court as the operative baseline, even if that law was deliberately changed weeks (or even days) before, Purcell makes it easier for election administrators to get away with unlawful rule-changes so long as they are adopted late in the game. And if a court ultimately strikes down the rule on the far side of the election, Purcell supports allowing the rule to remain in effect on election day itself, presumably accomplishing the goal of those who adopted it. In states whose officials do not behave quite so badly, Purcell at least incentivizes delay. When Georgia Governor Matt Kemp waited a full month in late 2021 before signing into law new congressional district maps adopted by the state legislature, it was broadly assumed that, with an eye on Purcell, he was trying to run out the clock. And it worked; although a Georgia district court concluded in early 2022 that the maps violated the Voting Rights Act, it also held that it would not enjoin them because of the proximity to Georgia’s primaries.
Finally, and exacerbating these concerns, Purcell was a shadow docket decision—decided on a compressed schedule, with no argument and no advance indication to the parties or anyone else that the Court would treat Arizona’s emergency application as an opportunity to fundamentally rewrite judicial procedure in election cases. (Orin Kerr called the Court’s decision “a lightning bolt from above.”) Its thinly reasoned analysis spans just over two pages. One would think that if the Justices wanted to dramatically change the nature of judicial review in election cases, they would have done so more publicly and in a more comprehensive opinion.
Part of the problem with Purcell’s paucity of analysis is the increasing appearance that courts use it in a way that tends to favor Republicans and hurt Democrats. In the middle of the 2020 cycle, the Justices had a perfect opportunity to demonstrate otherwise in a case from Florida. In 2018, Florida voters amended the state constitution to restore the right to vote to convicted felons who had fully served their sentences, an amendment that would re-enfranchise as many as one million voters. Florida’s Republican-controlled political branches vehemently opposed the amendment; because the population to whom it applied was overwhelmingly poor and non-white, the widespread assumption was that it would favor Democrats. Thus, the Governor and state legislature interpreted the amendment as only applying to those released felons who had also cleared all outstanding fines, fees, and restitution, even if they could not afford to do so, or even if, as was usually the case, Florida was unsure how much anyone owed due to faulty recordkeeping or a lack of clarity in the underlying judgments.
When those interpretations were challenged in 2019, a federal district court preliminarily enjoined enforcement, holding that they likely violated due process (because many convicted felons did not and could not know how much they owed); equal protection (because they imposed a wealth barrier to voting); and the Twenty-Fourth Amendment (which prohibits poll taxes). In May 2020, the district court issued a final judgment after an eight-day trial, striking down the pay-to-vote requirements.
On July 1, 2020, the Eleventh Circuit, which had previously refused to stay the district court’s preliminary injunction, stayed the permanent injunction. With the voter-registration deadline only 19 days away, the court of appeals changed the rules that had been in effect since the previous summer while offering no explanation as to why it was doing so. The plaintiffs asked the Supreme Court to lift the stay by invoking Purcell, arguing that the Eleventh Circuit had changed the rules for an election on the eve of the relevant deadline and had failed to either justify its ruling or explain why the underlying district court ruling was wrong. Under any reading of Purcell, this should have been an easy case for vacating the stay.
Instead, in a one-sentence order, the Supreme Court denied the application. Justice Sotomayor, joined by Justices Ginsburg and Kagan, wrote a fiery dissent, stressing the inconsistency between the Court’s intervention that April in a Wisconsin case and its non-intervention in Florida: “Ironically,” she concluded, “this Court has wielded Purcell as a reason to forbid courts to make voting safer during a pandemic,…because any safety-related changes supposedly came too close to election day. Now, faced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement—a situation that Purcell sought to avoid—the Court balks.”
Others have written about Purcell before Codrington. But the Court saw only a handful of Purcell-related cases throughout the 2010s. Codrington’s contribution is unique—and uniquely useful—in aggregating Purcell-infused disputes of the 2020 election cycle. Because of the number of last-minute changes to election laws in response to the COVID pandemic, alongside claims that local or state election officials should have gone further to accommodate voters amidst the public health emergency, the pandemic provided a chance to see how the Court would handle Purcell across a meaningful dataset of cases. And the results were, as Codrington explains, more than a little unsatisfying.
This February, concurring in the Supreme Court’s unsigned and unexplained stays of district court rulings that had enjoined implementation of Alabama’s proposed new congressional maps (although the primary was four months away and the general election nine months away), Justice Kavanaugh described Purcell as “a bedrock tenet of election law.” As Codrington persuasively argues, the only “bedrock tenet” Purcell truly establishes is its own increasingly indefensible subjectivity.
