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.
Sep 12, 2022 Maureen Carroll
Recent legal scholarship has shed needed light on the vast universe of litigation that occurs without lawyers. Large majorities of civil litigants lack representation, even in weighty matters such as eviction and termination of parental rights, raising a host of issues worthy of scholarly attention. For example, one recent article has examined racial and gendered effects of the lack of constitutionally guaranteed counsel in civil matters, and another has shown that judges tend not to reduce the complexity of the proceedings for the benefit of unrepresented parties.
In Judging Without a J.D., Sara Greene and Kristen Renberg add an important dimension to this discussion by examining the phenomenon of judges who have no legal training before they take the bench. Thirty-two states allow a person without a law degree to become a judge, including seventeen that allow non-lawyer judges to adjudicate eviction cases. Because of the high rates of pro se litigation, many litigants in these states “experience a courtroom in which often no one, not even the judge, is aware of the law.” Worse, some find that “the one person in the courtroom who is aware of the law is the attorney for the more powerful party (such as a landlord).”
Non-lawyer judges preside over low-level state courts, which helps to explain why Greene and Renberg’s essay is the first piece of legal scholarship since the 1980s to focus on them. “Attention to the matter has significantly waned over the last forty years as the legal academy and bar associations have focused more on federal courts and, to a lesser degree, high-level state courts.” For many of us in the academy, our knowledge of this issue comes not from legal scholarship (or personal experience) but from journalism: A 2006 New York Times investigation into New York’s town and village courts and a 2019 ProPublica investigation into South Carolina’s magistrates cast public attention on lay judging.
Greene and Renberg begin their essay with a concise but illuminating history of lay judging in America. In the colonial courts of the seventeenth century, few judges were lawyers; justice and religion were linked, and colonists often viewed lawyers as impious outsiders. Although roles of courts and judges evolved, distrust of lawyers persisted; it was not until the nineteenth century that legal training became a presumptive requirement for higher-court judicial positions. “It took longer for lower courts to transition, and many did not transition at all, particularly in rural areas.”
By the twentieth century, “federal courts and high-level state courts ended up primarily with cases involving businesses and people with higher incomes, while the legal problems of the poor were primarily allocated to low-level state courts.” The latter were–and remain–the courts where non-lawyers serve as judges. This alignment is not a coincidence: While lay judging originated in a distrust of lawyers and a belief that “local custom and piousness should pervade the law,” the current reality flows from “a long history of blaming the poor for their problems and then underresourcing institutions that serve people who are poor and disproportionately Black and Latinx.”
That is a provocative conclusion, but the authors amply support it, in part through a comprehensive survey of state laws governing lay judging. States assign cases to non-lawyer judges not because of the complexity of the legal issues or the extent to which they would benefit from an understanding of community norms, but because of the amount of money at stake. Of course, one need not have a J.D. to grasp complex legal issues, and one can learn the law without attending law school. But as the authors demonstrate, many of the states that allow non-lawyers to become judges do little to ensure that they possess sufficient legal knowledge to adjudicate the cases that come before them. Qualifications and training requirements vary widely. Some states require only that non-lawyer judges be over a certain age (usually twenty-one) and reside within the state’s geographical boundaries at the time they take the bench; the irregular timing of magistrate training programs “can result in magistrates adjudicating cases for half a year or more with no legal or administrative training at all.”
In addition to the fifty-state survey, Greene and Renberg provide a granular view through a case study of non-lawyer judges in North Carolina. Magistrate judges in that state adjudicate civil and criminal matters, over 80% without a law degree. They may adjudicate cases for up to six months without any training; by the six-month mark, they must receive forty hours of initial training, and they must complete twelve hours of continuing education per year thereafter. Unsurprisingly, magistrates made “clear procedural errors,” including “failing to tell litigants of their right to appeal, failing to consider legal issues in eviction cases, incorrectly revoking a litigant’s driver’s license, setting inappropriate bail, and incorrectly issuing warrants.”
Greene and Renberg find that judicial salaries “put a price tag on these courts, and the lack of high valuation is evident.” North Carolina magistrates make between $42,630 and $68,072 per year, depending on how long they have been on the job. By contrast, all federal judges earn more than $200,000 per year, and “the mean and median salaries for (higher-level) state court judges of general jurisdiction courts, intermediate appellate courts, and courts of last resort are all over $150,000.” These salary differentials show “states’ lack of willingness to invest in making magistrate positions (or their equivalent) attractive to lawyers as a career path.”
A fascinating part of the North Carolina case study explores the degree to which the state’s lay judges have a background in law enforcement. Law enforcement is one of magistrates’ most common previous careers; in the county where the authors conducted interviews, all but one of the fifteen sitting magistrates were former probation officers. The situation is a far cry from the idealized model of the lay judge as wise community member, steeped in local norms but presumably neutral. Instead, the person overseeing an individual’s criminal punishment one day may preside over their eviction case on a later day–without any legal training. That path is troubling when viewed against the racial dynamics of law enforcement and the over-policing of minority neighborhoods.
This essay is beautifully written and elegantly structured. Each of its three sections–the history of non-lawyer judges, the comprehensive survey of state laws about judicial qualifications, and the case study of non-lawyer judges in North Carolina–is worth reading on its own and could work well as a supplemental reading in a Civil Procedure course. Together, they make for a gripping and thought-provoking read. I came away thoroughly convinced of the authors’ argument for “an increased focus on who staffs low-level state court judgeships and what type of training they receive.”
Jul 21, 2022 Howard M. Wasserman
Zachary D. Clopton,
Catch and Kill Jurisdiction, _
Mich. L. Rev. _ (forthcoming 2022), available at
SSRN.
Good procedure scholarship identifies, explains, justifies, and critiques a judicial and litigation phenomenon, offering a framework to understand, change, or support what courts, parties, and rulemakers are doing. Great procedure scholarship describes the phenomenon with a pithy and memorable name or metaphor.
Behold Zachary Clopton’s Catch and Kill Jurisdiction.
Clopton draws his framework and label from catch-and-kill journalism, in which a publication purchases exclusive rights to a story for the purpose of not publishing it. The purchaser catches the story by taking it from other publications, then kills it by refusing to put the story out. The move protects the story subject from embarrassment (or worse) and denies the public potentially important information.
A court catches a case by exercising jurisdiction over an apparent state-law claim through a judge-made expansion of jurisdictional rules, keeping the case away from a state court with concurrent jurisdiction. It kills the case by applying unique, often judge-made federal-court doctrines to dismiss the case on non-merits grounds that prevent future litigation of the claim.
Clopton narrows and specifies the details of both elements.
A court catches through judicially created jurisdictional rules or expansive judicial interpretations of jurisdictional statutes, allowing cases to be filed in federal court or removed from state court; the federal court exercises jurisdiction rather than a state court, as the catching publication controls the piece rather than another publication. Courts catch through several doctrines. One is federal common law and federal common law of foreign relations in transnational cases—cases arise under federal law because judge-made federal law, rather than apparent state law, provides the rule of decision. Another is jurisdictional sequencing; the court assumes subject-matter jurisdiction to dismiss cases on other federal procedural grounds. Another involves expansive readings of federal jurisdictional and removal statutes—snap removal (allowing removal of diversity cases before a disqualifying forum defendant is served), federal-officer removal, and complete preemption (a federal statute converts a state common law claim into a federal statutory claim arising under federal law).
A court kills by dismissing in a specific way. Killing requires a non-merits dismissal, rejecting the claim on grounds that would not have applied or produced the same result in state court. Killing requires more than wounding—that a case becomes more difficult for a plaintiff in federal court than state court (e.g., because of heightened pleading requirements) does not mean the case has been killed. Killing means the case cannot—as a legal or practical matter—be refiled and successfully litigated in state court. Courts kill cases by dismissing for forum non conveniens or by abstaining on grounds of international comity; both push litigation to a non-U.S. court. Courts can kill by delaying ruling on a jurisdictional motion (such as a motion to remand to state court), leaving time for settlement or other resolution. And courts kill by rejecting the plaintiff’s claim under federal common law, the most insidious exercise of this power—the court exercises jurisdiction because federal common law or a preempting federal statute provides the rule of decision, then finds no enforceable legal right under federal common law.
Clopton identifies three features that enable the catch-and-kill phenomenon. Federal courts must be willing to expand their jurisdiction and to exercise judicial power, whether generally or out of special concerns for a particular class of case, such as transnational litigation. Federal courts must be hostile to a class of cases or litigants and willing to apply non-merits doctrines to defeat those claims. And Clopton warns of a “catch and kill ratchet,” in which catch-and-kill jurisdiction begets more catch-and-kill jurisdiction. As defendants recognize federal-court hostility to some claims, they push courts to extend jurisdiction to bring those disfavored claims into federal court to be rejected, whether by lobbying Congress to expand jurisdiction or by urging broader interpretations of existing jurisdictional grants. That is, as defendants recognize that federal courts are willing to kill some cases, they push to allow federal courts to catch more of those cases.
Clopton rejects the easy conclusion that this phenomenon must be a negative. Absent agreement on the ideal distribution between state and federal courts, it is impossible to say the expansion of federal jurisdiction or the rejection of these claims is incorrect. A stronger objection rests on concerns for transparency and democratic legitimacy. Catch-and-kill changes substantive policy on important matters—transnational claims and claims regarding climate change—through “diffusion, obscurity, and seeming neutrality.” Rather than Congress, hundreds of lower-court judges apply neutral-sounding procedural rules with different issues in different cases, with a corresponding loss of oversight, public accountability, and even public awareness of actual substantive policy. For example, three lower-court judges may create a catch-and-kill doctrine—one judge creates the catch rule in one case, a second judge creates the kill rule in a second case, and a third judge combines those rules in a third case—each unknown and out of the public eye.
Having described the phenomenon and its defects, Clopton questions who might eliminate the practice and how. Congress, the Supreme Court, and the states can produce wholesale changes, although he doubts any would be willing or effective. He places greater faith in litigants to make lower courts aware of the catch-and-kill problem and of the need to narrow these jurisdictional doctrines or to refuse to apply them in a way that produces kills. By naming this phenomenon, Clopton strengthens those arguments.
Catch-and-kill journalism is a nefarious practice, a way for the worst tabloid journalists to expend vast resources to conceal misconduct of powerful actors from public view, scrutiny, and accountability. Clopton finds and uses the perfect metaphor for a litigation phenomenon—these doctrines protect powerful defendants from seeming liability, through doctrines whose creation, application, and outcome is concealed from public view, scrutiny, and accountability.
