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Pound's century, and ours
... The time for clear-eyed critique and for imagination about the next procedural moment is now. 42 If a revolutionary change is controversial-and most are-it might well be better to adopt the entire change, rather than dragging out the controversy for years and years. As Judge Charles Clark once observed, "[H]alfhearted reform is worse than none at all-having all the vices of novelty and none of the virtues of lasting improvement." ...
The Denver University Law Review is to be congratulated on organ-izing this wonderful issue on civil justice reform. The Law Review has compiled an exceptionally knowledgeable and talented group of authors, who have provided us with thoughtful and intriguing suggestions for changes to the Federal Rules of Civil Procedure. For example, Justice Rebecca Love Kourlis and her colleagues at the Institute for the Ad-vancement of the American Legal System take head on the difficult and controversial subject of pleading standards at a time when practitioners, jurists, academics, and legislators are debating the meaning of the Su-preme Court's decisions in Iqbal and Twombly. 1 Judge Lee H. Rosenthal, Chair of the Judicial Conference's Standing Committee on Rules of Prac-tice and Procedure, discusses discovery and judicial control of discovery, which very well may lie at the heart of the controversy over pleading standards. 2 Indeed, it is the cost associated with the operation of the Fed-eral Rules, and discovery in particular, that leads Professor Jay Tidmarsh to suggest that in designing and interpreting our procedural rules, we replace the vision on which our modern procedural system was built— United States District Judge, District of Connecticut. The author has served as Chair of the Civil Rules Advisory Committee since June 2007. Before that, the author served as a member of the Standing Committee on Rules of Practice and Procedure from 2001 to 2007. The sentiments ex-pressed in this article are the author's alone and do not reflect the views of the Civil Rules Advisory Committee or the Standing Committee. The author wishes to thank Professor Edward H. Cooper, Reporter to the Civil Rules Advisory Committee, for his insights and assistance. Any errors or mis-takes of judgment are the author's alone. ("We need a civil justice system that encourages the filing of meritorious claims and one that allows those claims to be honed and resolved effi-ciently. We need, in other words, a process that begins to narrow and focus issues as soon as a le-gitimate claim is filed."); see also Open Access to Courts Act of 2009, H.R. 4115, 111th Cong. (1st Sess. 2009) ("A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief."); Notice Pleading Restoration Act of 2009, S. 1504, 111th Cong. (1st Sess. 2009) ("Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957)"). 2. Lee H. Rosenthal, From Rules of Procedure to How Lawyers Litigate: 'Twixt the Cup and the Lip, 87 DENV. U. L. REV. 227, 231 (2010) ("Many studies and surveys analyzing the civil litiga-tion system have concluded that the critical element in bridging the gap between the rules and their application is making the district judge more accessible to the lawyers, more involved in the details of discovery in cases that need such involvement, more present in the cases that require such super-vision.").
This book presents a unified set of arguments about the nature of jurisprudence and its relation to the jurist's role. It explores contemporary challenges that create a need for social scientific perspectives in jurisprudence, and it shows how sociological resources can and should be used in considering juristic issues. Its overall aim is to redefine the concept of sociological jurisprudence and outline a new agenda for this. Supporting this agenda, the book elaborates a distinctive juristic perspective that recognises law's diversity of cultural meanings, its extending transnational reach, its responsibilities to reflect popular aspirations for justice and security, and its integrative tasks as a general resource of regulation for society as a whole and for the individuals who interact under law's protection. Drawing on and extending the author's previous work, the book will be essential reading for students, researchers and academics working in jurisprudence, law and society, socio-legal studies, sociology of law, and comparative legal studies.
The starting place for any discussion of civil procedure in the United States is the Federal Rules of Civil Procedure (‘FRCP’), rules first enacted in 1938 and made applicable solely to federal courts. Even though the adoption of these rules by state courts and state legislatures has never been mandatory, nonetheless the FRCP have to a great extent served as a highly influential model impacting the development of procedural law in all 50 states. Why is this so? Why did voluntary processes succeed in bringing about the harmonisation of procedural law in the U.S.? In part the answer is that the movement that produced the FRCP was not primarily an effort to bring about harmonisation; it was as much an effort at reform. In part the answer is that from the perspective of greater access to justice and greater likelihood of justice on the merits, the FRCP were an improvement over existing state law and practice. But neither of these two explanations is a complete answer. This chapter focuses on the powerful role of emerging elites that stood much to gain from the creation of a federal law of civil procedure and from its dissemination to state systems throughout the country. Three groups in particular gained much in stature: elite law schools, the emerging class of law firms seeking to practice law on a multistate basis, and federal judges. Based on the American experience, the insight potentially useful in evaluating other harmonisation movements, especially in the EU, is that harmonisation is most likely to go forward when determined and resourceful interest groups can identify clear gains to themselves from such a process.
This Article studied the actual effect of the United States Supreme Court’s decision in Ashcroft v. Iqbal on the cohort of more than 264 federal pharmaceutical and medical device cases of every type, released from the day of the decision in Iqbal through August 31, 2010. The results of this study of more than 15 months of case law suggest that Iqbal is not having a dramatic impact on this cohort, although its impact cannot be conclusively dismissed as inconsequential either. There have been aggressive applications of Iqbal on occasion. In the 21.2% of the time when Iqbal appears facially to be impactful, a closer examination reveals that this observed effect is, in large measure, decreasing in incidence, coupled with an ability for correction, and frequently avoidable through accessible sources of information. Moreover, it is possible that those perceived effects may be phantoms, because repeated, longstanding, and frequently cited federal precedent among the lower federal courts may well have led to functionally identical results even without Iqbal‘s emergence.
Courts have recently grappled with the issue of whether predictive coding is sufficiently reliable search technology to use in electronic discovery. Courts have appropriately ruled in recent cases that parties may choose to use predictive coding. Moves by courts to mandate that a party use that technology, however, are improper. Such actions by judges implicate important policy considerations that go to the heart of the American adversarial system. This paper argues that parties may have legitimate concerns that lead them to prefer keyword searching rather than predictive coding and that judges do not have sufficient reasons to depart from the traditional judicial role to intervene in parties' decisions on search technology.
Eighty years ago in SEC v. Chenery, the Supreme Court declared, “an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its actions can be sustained.” Translation: Courts and agencies must not deploy post hoc rationales during judicial review to save discretionary administrative actions. Over time, this contemporaneous-rationale rule has seeped deep into the marrow of administrative law. But this Chenery rule is wrong — or at least not quite right. Chenery’s basic, procrustean mistake was to state a categorical rule even though reliance on post hoc rationales is sometimes sensible. Courts have reasonably responded to this overreach by cheating on Chenery. The law in this area is therefore more confused than it should be, which impedes clear thinking about how post hoc rationales could be integrated into administrative and judicial procedures to improve them both. Chenery's bar is, at bottom, a judicially-crafted, common-law style rule designed to encourage agency responsibility and judicial efficiency. It is not constitutionally compelled. Courts therefore can change it, and they should do so, giving up Chenery's misleading clarity for a pragmatic, rule-of-reason approach. Or, as Judge Friendly suggested over forty years ago, courts should recognize that applying Chenery is “perhaps more art than science.”
For thirty years, the Federal Rules of Civil Procedure have relied on active Judicial case management to combat undue cost and delay The complaints about cost and delay have not gone away, but few blame the case-management rules for that Indeed, lawyers continue to view active judicial case management as one of the best ways of reducing cost and delay, and most of the reforms being urged today seek even greater Judicial case management for that reason But some think the rulemakers took a wrong turn thirty years ago and that each round of rulemaking that places more reliance on case management simply compounds the error This Article examines the role of case management in the current system, the criticisms of the case-management model, and the implications of those criticisms for the current reform agenda It is organized around five questions, each exploring a policy or practical issue associated with having a pretrial system that (1) has Just one set of rules for all cases, and (2) relies on active Judicial case management to ensure that the pretrial process in each case is just, speedy, and inexpensive The stakes are high If we, participants in the Judicial system, are to continue to rely on active Judicial case management to tailor the pretrial process to the needs of individual cases, then we must be sure that we understand the implications of doing so If we conclude that we do not like those implications, or that there are better ways to tailor the pretrial process, then we need to take a different path than the one we have traversed for the last thirty years But if we conclude that we have been on the right path, and that federal courts should push even farther down that path, then we must be prepared to meet the crossfire that we will encounter along the way
Class action plaintiffs lost two major five-to-four cases last Term, with potentially significant consequences for future class litigation: AT&T Mobility v. Concepcion and Wal-Mart v. Dukes. The tragedy is that the impact of each of these cases might have been avoided had the plaintiffs’ lawyers, the lower courts, and the dissenting Justices not overreached. In this Article, I argue that those on the losing side insisted on broad and untenable positions and thereby set themselves up for an equally broad defeat; they got greedy and suffered the inevitable consequences. Unfortunately, the consequences will redound to the detriment of many other potential litigants. And these two cases are not isolated tragedies; they provide a window into a larger problem of Rule 23. When plaintiffs’ lawyers chart a course for future litigants, they may be tempted to frame issues broadly for the “big win” – with disastrous consequences. I suggest that it is up to the courts, and especially to those judges most sympathetic to the interests of class-action plaintiffs, to avoid the costs of lawyers’ overreaching. That is exactly what the dissenting Justices (and the judges below) failed to do in these cases.
Doctrine is at the center of law and legal analysis. This Article argues that we have fundamentally misunderstood its nature. The conventional approach to legal doctrine focuses on theory and applications. What is the doctrine designed to do and how does it function? But many doctrines cannot be adequately understood or evaluated under the conventional model because they contain an additional, hidden element. They are built on foundational facts: potentially contested factual assumptions embedded in the doctrinal structure itself. Foundational facts are judges' generalized and invisible intuitions about how the world works. Whether a defendant acted in a particular way out of a particular motive are decisional, rather than foundational, facts. But the likelihood of actors in defendant's position acting that way or having that motive are foundational facts, and doctrinal rules - including burdens of proof and standards of review - will be structured differently depending on whether judges assume a high or low likelihood. Foundational facts thus drive doctrine. Without an understanding of a doctrine's foundational facts, we cannot adequately understand the doctrine and its changes over time. Foundational facts only come to light when doctrine shifts, seemingly inexplicably and often without judicial acknowledgment that anything has changed. That doctrinal shift serves as a cue to look for changed foundational assumptions that might be driving the doctrinal change. Identifying those foundational facts, in turn, allows us to better understand and evaluate both the doctrine and its underlying assumptions.
Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.
The Federal Rules of Civil Procedure were originally based upon a straightforward model of adjudication: Resolve the merits of cases at trial and use pretrial procedures to facilitate accurate trial outcomes. Though appealing in principle, this model has little relevance today. As is now well known, the endpoint around which the Federal Rules were structured — trial — virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article is the first to argue that the current litigation process needs a new regime of civil procedure for the world of settlement. This Article begins by providing a systemic analysis of why the Federal Rules inadequately prevent settlement outcomes from being distorted relative to the underlying merits — as defined by reference to substantive law — of a given dispute. It then explains how the Federal Rules can actually amplify these distortions. Indeed, notwithstanding the well-worn adage that settlement occurs in the “shadow of the law,” scholars have shown that non-merits factors exert significant influence on settlement outcomes. However, these insights have not been considered together and combined with a systemic focus on the ways in which the influence of these factors on settlement outcomes is actually a product of the basic structural features of the Federal Rules. This Article takes these next steps to explain that the “shadow of the law” that is cast on settlements is fading. Further, this Article discusses a new phenomenon in the current litigation environment — namely, that litigants’ increased reliance on prior settlements as “precedent” for future settlement decisions may move settlement even further out of the “shadow of the law” and into the “shadow of settlement” itself. This Article then traces these problems to three foundational assumptions underlying the Federal Rules of Civil Procedure, all of which have become outmoded in a world of settlement. In rethinking these assumptions, it provides a new conceptual account that contextualizes previously isolated procedural reform proposals as challenges to these foundational assumptions. It also explains how these reform efforts ought to be refined and extended with a specific view toward systematically redesigning the basic model and operation of the Federal Rules for a world of settlement. Lastly, it sets forth new proposals that seek to reorient current rules expressly toward the goal of aligning settlement outcomes with the merits of underlying claims. What emerges is a new vision of procedure — one in which the application of pretrial procedural rules do not merely facilitate trial but are designed to provide litigants with guidance regarding the merits of claims and are used to align settlement outcomes more meaningfully with the dictates of the substantive law. In describing this vision, this Article lays the groundwork for the design of a new Federal Rules of Civil Settlement.
"Public law litigation" - civil rights advocacy seeking to restructure public agencies - has changed course over the last three decades. It has moved away from remedial intervention modeled on command-and-control bureaucracy toward a kind of intervention that can be called "experimentalist." Instead of top-down, fixed-rule regimes, the experimentalist approach emphasizes ongoing stakeholder negotiation, continuously revised performance measures, and transparency. Experimentalism is evident in all the principal areas of public law intervention - schools, mental health institutions, prisons, police, and public housing. This development has been substantially unanticipated and unnoticed by both advocates and critics of public law litigation. In this Article, we describe the emergence of the experimentalist model and argue that it moots many common criticisms of public law litigation. We further suggest that it implies answers to some prominent doctrinal issues, including the limits on judicial discretion in enforcing public law rights and the constraints entailed by separation-of-Rowers norms. Our interpretation understands public law cases as core instances of "destabilization rights" - rights to disentrench an institution that has systematically failed to meet its obligations and remained immune to traditional forces of political correction. It suggests reasons why judicial recognition and enforcement of such rights might be both effective in inducing better compliance with legal obligations and consistent with our structure of government.
An investigation of the impact of innovations in civil trial procedure manipulated trial structure (unitary vs. separated trial issues), order of decisions (liability or causation first), and number of decisions made (one to four) in a simulated toxic tort trial. Juries gave verdicts and damage awards. Recordings were made of the juries' deliberations. The results showed significantly more verdicts in favor of the plaintiffs in unitary trials (causation, liability, and damages heard together) as opposed to separated trials. However, average damage awards were higher in the separated than in the unitary trial conditions. Juries assigned more responsibility to the defendant in the unitary trial. Juries also used the totality of the evidence to decide all issues, especially general causation, which contained the most ambiguous testimony. The performance of these simulated juries in complex litigation was discussed in terms of group and individual cognitive factors.
An experiment was performed to determine the effects of the size of the plaintiff population, the presence or absence of an outlier, defined as a plaintiff whose injuries were significantly more severe than other plaintiffs, and whether plaintiffs were tried individually or were aggregated in a group. Sixty-six person juries were assigned to one of eleven experimental conditions, listened to a 4-h toxic tort trial, and, after deliberating, delivered verdicts on liability, and damage awards. The verdicts were increased significantly by the presence of an outlier and by an increase in the plaintiff population. While the punitive awards were higher in the outlier condition, there was also a tendency for juries to find the company not liable.
The meaning of the above findings, as well as the fact that juries exhibited great variability in their verdicts was discussed. Evidence as to the decision-making process of the juries was also gathered and discussed.
no abstract available
This Essay formulates a positive model that predicts when commercial parties will employ private ordering to enforce their agreements. The typical enforcement mechanism associated with private ordering is the reputation mechanism, in which a merchant community punishes parties in breach of contract by denying them future business. The growing private ordering literature argues that these private enforcement mechanisms can be superior to the traditional, less efficient enforcement measures provided by public courts. However, previous comparisons between public and private contractual enforcement have presented a misleading dichotomy by failing to consider a third enforcement mechanim: the vertically integrated firm. This Essay develops a model that comprehensively addresses three distinct types of enforcement mechanisms--firms, courts, and reputation-based private ordering. The model rests on a synthesis of transaction cost economics, which compares the efficiencies of firms versus markets, and the private ordering literature, which compares the efficiencies of public courts versus private ordering. It hypothesizes that private ordering will arise when agreements present enforcement difficulties, high-powered market incentives are important, and the costs of entry barriers are low. The Essay then conducts an illustrative test by comparing the model's predictions to documented instances of private ordering.
Legal decisions and theories are frequently condemned as formalistic, yet little discussion has occurred regarding exactly what the term "formalism" means. In this Article, Professor Schauer examines divergent uses of the term to elucidate its descriptive content. Conceptions of formalism, he argues, involve the notion that rules constrict the choice of the decisionmaker. Our aversion to formalism stems from denial that the language of rules either can or should constrict choice in this way. Yet Professor Schauer argues that this aversion to formalism should be rethought: At times language both can and should restrict decisionmakers. Consequently, the term "formalistic" should not be used as a blanket condemnation of a decisionmaking process; instead the debate regarding decision according to rules should be confronted on its own terms.
The fact that litigation ends in settlement in the vast majority of cases may lead one to conclude that settlement is the ''preferred'' alternative to going to trial. Efforts to promote settlement, including the Civil Justice Reform Act's requirement that courts adopt techniques for expediting the litigation process, seem to embrace the view that ''settlement is good.'' However, this begs the question: What makes settlement ''better'' than adjudication? In this article, Professor Galanter and Ms. Cahill question whether settlement is the ''right'' outcome just because most parties agree to it. They critique existing methods for measuring the benefits of settlement, examine the multitude of factors-legal, sociological, and economic-that contribute to a party's decision to settle, and explore the merits of judical promotion of settlement. The authors argue that courts and policymakers should approach settlement with a more critical eye, distinguishing ''good'' settlements from less desirable ones.
In 1959 the United States District Court for the Northern District of Illinois adopted a rule permitting separate trials of liability and damage issues in civil cases. At the request of the court the authors have conducted an investigation to determine the extent to which time is saved through use of the separation device. They use a variety of converging statistical approaches to arrive at the conclusion that in personal injury jury trial cases about twenty per cent of trial time may be saved. They then consider the possible ways that separation might lengthen trial time, and conclude that these will not offset the time saving to any degree.
This Article challenges the assumption that law is essentially political. Professor Weinrib presents a noninstrumental conception of the rationality of juridical relationships. His analysis draws on the notion of form to distinguish political considerations from the justificatory structures latent in legal thinking. Professor Weinrib concludes by defending the conceptualism of his approach and by contrasting formalism to the currently popular modes of legal scholarship.
In Part I of this article the authors described civil procedure in the German regular courts of first instance. They now survey review in the higher courts, the method of fixing and allocating litigation expenses, and the provision for state legal aid, and conclude with a few observations about the procedural system as a whole.
Recent scholarship has sought to challenge textualist interpretive methods by reviving the ancient English doctrine of the equity of the statute--a doctrine that treated atexual, purposive interpretation as an inherent attribute of judicial authority. In particular, modern proponents contend that this common law doctrine, rather than the currently prevailing faithful agent theory, more accurately reflects the original understanding of "the judicial Power of the United States." In this Article, Professor Manning argues that the English equity of the statute doctrine failed to survive the structural innovations that differentiated the U. S. Constitution from its English common law ancestry. He further contends that while early American history is somewhat mixed, the faithful agent theory came to be the dominant federal interpretive theory quite early in the republic. Finally, Professor Manning argues that, contrary to the critics of textualism, current rejection of the equity of the statute will not lead to rigid and literal interpretive methods.
We are approaching the fiftieth anniversary of the enactment of the Federal Rules of Civil Procedure. Reconsideration of the Rules is appropriate for several reasons, not the least of which is to pause in admiration of a formidable accomplishment. For members of my generation, who grew up in law with rules that assume the desirability of nontechnical approaches to procedure, it is easy to ignore the tremendous contribution that the Rules have made to our thinking. Hence praise, accolades, and affection are due the group which created the Federal Rules of Civil Procedure.
But this is not simply a time for rejoicing at a prior generation's achievements. Many in the legal profession now criticize aspects of the Rules and demand revision. Critics claim that the federal courts are in "crisis" and argue that some of the current problems are properly charged to decisions made fifty years ago, including reliance upon one trans-substantive set of rules for all kinds of cases, upon minimal pleading requirements, and upon discovery as a technique for issue identification. Many of the critics hope to limit what they perceive to be an avalanche of litigation and an unrestrained exploitation by litigants and attorneys of the procedural opportunities made available by the Rules.
In a recent report to the Harvard Overseers, Derek Bok called for a new direction in legal education. He decried "the familiar tilt in the law curriculum toward preparing students for legal combat," and asked instead that law schools train their students "for the gentler arts of reconciliation and accommodation." He sought to turn our attention from the courts to "new voluntary mechanisms" for resolving disputes. In doing so, Bok echoed themes that have long been associated with the Chief Justice, and that have become a rallying point for the organized bar and the source of a new movement in the law. This movement is the subject of a new professional journal, a newly formed section of the American Association of Law Schools, and several well-funded institutes. It has even received its own acronym-ADR (Alternative Dispute Resolution).
Plaintiffs' attorneys in class action and derivative suits occupy an uneasy place in the American legal system. The traditional image of the lawyer is of an independent professional providing advice and advocacy on behalf of a client. The attorney, in this view, is an agent of the client and subject to the client's control in all important matters. Plaintiffs' class action and derivative attorneys do not fit this mold. They are subject to only minimal monitoring by their ostensible "clients," who are either dispersed and disorganized (in the case of class action litigation) or under the control of hostile forces (in the case of derivative litigation). Accordingly, plaintiffs' class and derivative attorneys function essentially as entrepreneurs who bear a substantial amount of the litigation risk and exercise nearly plenary control over all important decisions in the lawsuit.
Part I of this Article first looks at the major components of common law and equity procedure, and then examines the domination of an equity mentality in the Federal Rules. Part II explores the American procedural experience before the twentieth century, and demonstrates how David Dudley Field and his 1848 New York Code were tied to a common law procedural outlook. Part III concentrates on Roscoe Pound (who initiated the twentieth century procedural reform effort), Thomas Shelton (who led the American Bar Association Enabling Act Movement), and Charles Clark (the major draftsman of the Federal Rules). Through understanding these men and the interests they represented, one can see that we did not stumble into an equity system; people with identifiable agendas wanted it. Part IV examines how the Federal Rules advocate rejected methods that might have helped balance and control their equity procedure, why the methods of confining the system failed, and why current approaches to redress the imbalance of an equity-dominated system will also fail. It concludes with a summary of fundamental constraints rejected by the advocates of uniform federal rules of procedure. My goal is to rescue some quite profound voices from the wilderness.
Our lawyer-dominated system of civil procedure has often been criticized both for its incentives to distort evidence and for the expense and complexity of its modes of discovery and trial. The shortcomings inhere in a system that leaves to partisans the work of gathering and producing the factual material upon which adjudication depends.
We have comforted ourselves with the thought that a lawyerless system would be worse. The excesses of American adversary justice would seem to pale by comparison with a literally nonadversarial system-one in which litigants would be remitted to faceless bureaucratic adjudicators and denied the safeguards that flow from lawyerly intermediation.
The main theme of this article is drawn from Continental civil procedure, exemplified for me by the system that I know reasonably well, the West German. My theme is that, by assigning judges rather than lawyers to investigate the facts, the Germans avoid the most troublesome aspects of our practice. But I shall emphasize that the familiar contrast between our adversarial procedure and the supposedly nonadversarial procedure of the Continental tradition has been grossly overdrawn. To be sure, since the greater responsibility of the bench for
In this article, Professor Mashaw examines and criticizes the Supreme Court's most recent attempt, in Mathews v. Eldridge, to formulate a due process calculus for administrative adjudication. According to Mashaw the failure of the Eldridge calculus is its emphasis on questions of technique rather than on questions of value. The Court, he proposes, should be systematically concerned with the various alternative value theories that the due process clause reflects. Finally, Mashaw indicates the contribution that such concerns might have made to the Eldridge analysis and to due process review in general.
Until recently, the American legal establishment embraced a classical view of the judicial role. Under this view, judges are not supposed to have an involvement or interest in the controversies they adjudicate. Disengagement and dispassion supposedly enable judges to decide cases fairly and impartially. The mythic emblems surrounding the goddess Justice illustrate this vision of the proper judicial attitude: Justice carries scales, reflecting the obligation to balance claims fairly; she possesses a sword, giving her great power to enforce decisions; and she wears a blindfold, protecting her from distractions.
Many federal judges have departed from their earlier attitudes; they have dropped the relatively disinterested pose to adopt a more active, "managerial" stance. In growing numbers, judges are not only adjudicating the merits of issues presented to them by litigants, but also are meeting with parties in chambers to encourage settlement of disputes and to supervise case preparation. Both before and after the trial, judges are playing a critical role in shaping litigation and influencing results.
Traditionally, adjudication has been understood to be a process for resolving disputes among private parties which have not been privately settled. In this Article, Professor Chayes argues that this conception of adjudication cannot account for much of what is actually happening in federal trial courts. Civil litigation increasingly involves determination of issues of public law, whether statutory or constitutional, and frequently terminates in an ongoing affirmative decree. The litigation focuses not on the fair implications of private interactions, but on the application of regulatory policy to the situation at hand. The lawsuit does not merely clarify the meaning of the law, remitting the parties to private ordering of their affairs, but itself establishes a regime ordering the future interaction of the parties and of absentees as well, subjecting them to continuing judicial oversight. Such a role for courts, and for judges, is unprecedented and raises serious concerns of legitimacy. Notwithstanding these concerns, Professor Chayes' preliminary conclusion is that the involvement of the court and judge in public law litigation is workable, and indeed inevitable if justice is to be done in an increasingly regulated society. Because of its regulatory base, public law litigation will often, at least as a practical matter, affect the interests of many people. Much significant public law litigation is therefore carried out through the class action mechanism, discussed at length in Developments in the Law - Class Actions, which follows Professor Chayes' Article. Although this Article is not intended to be a foreword to the Developments Note, both pieces share the perspective that adjudication and civil procedure can usefully be analyzed as elements of a larger system of public regulation. For this reason, the two pieces may profitably be read together.
This article offers some reflections stimulated by Professor Galanter's materials, which were the common springboard for the Vanishing Trials Symposium. It suggests that other data, quantitative and qualitative, may be helpful in understanding the vanishing trials phenomenon in federal civil cases, notably data available for years prior to 1962, and questions whether it is meaningful to use total dispositions as the denominator in calculating a trial termination rate. The article argues that care should be taken in using data from state court systems, as also data from criminal cases, administrative adjudication, and ADR, lest one put at risk through careless assimilation of data or muddled thinking a project quite difficult enough without additional baggage. The article describes the limitations of data previously collected by the Administrative Office of the U.S. Courts and highlights unique opportunities created by the AO's switch to a new Case Management/Electronic Case Files system. It argues that Professor Galanter may underestimate the influence of both changing demand for court services (docket makeup) and of changing demand for judicial services (resources) on the trial rate. Finally, the article argues that conclusions about either the causes or consequences of the vanishing trials phenomenon in federal civil cases are premature, suggesting in particular reasons to be wary of emphasis on “institutional factors” such as the discretionary power of first-instance judges and the ideology of managerial judging.
Federal data sets covering district court and appellate court civil cases for cases terminating in fiscal years 1988 through 2000 are analyzed. Appeals are filed in 10.9 percent of filed cases, and 21.0 percent of cases if one limits the sample to cases with a definitive judgment for plaintiff or defendant. The appeal rate is 39.6 percent in tried cases compared to 10.0 percent of nontried cases. For cases with definitive judgments, the appeal filing rate is 19.0 percent in nontried cases and 40.9 percent in tried cases. Tried cases with definitive judgments are appealed to a conclusion on the merits in 22.7 percent of concluded trials compared to 10.2 percent of concluded nontried cases. Appellate courts affirm and reverse at different rates appeals from judgments for plaintiffs and defendants. Defendants achieve reversal of adverse trial court judgments in about 10 percent of filed cases and suffer affirmance in about 15 percent of such cases. Plaintiffs achieve reversal in about 4 percent of adverse trial court judgments and suffer affirmance in about 16 percent of such cases. Asymmetrical reversal rates are shown to be in part possibly attributable to different trial-win rates. But the data suggest that an appellate court effect exists, independent of trial-win rates and appeal rates, that depresses plaintiff success on appeal in employment discrimination cases.
We tend to take for granted that the United States Supreme Court has the discretionary power, through its use of the writ of certiorari, to select the cases it wishes to decide. The Court, however, has not always possessed this discretion. Professor Hartnett traces the history of certiorari in the Court, paying particular attention to the unprecedented efforts of Chief Justice William Howard Taft to promote the landmark Judges' Bill of 1925, and the uncritical deference to the Court shown by Congress in enacting it. After describing ways in which the Court asserted even broader discretion than Congress provided, Professor Hartnett questions whether certiorari is consistent with the traditional conceptions of judicial review, the nature of judicial power, and the rule of law. While questioning certiorari, he emphasizes its importance not only in encouraging Supreme Court Justices to think of themselves as final arbiters of controversial questions, but also in shaping substantive constitutional law.
What understanding of the "judicial Power" would the Founders and their immediate successors possess in regard to statutory interpretation? In this Article, Professor Eskridge explores the background understanding of the judiciary's role in the interpretation of legislative texts, and answers earlier work by scholars like Professor John Manning who have suggested that the separation of powers adopted in the U.S. Constitution mandate an interpretive methodology similar to today's textualism. Reviewing sources such as English precedents, early state court practices, ratifying debates, and the Marshall Court's practices, Eskridge demonstrates that while early statutory interpretation began with the words of the text, it by no means confined its search for meaning to the plain text. He concludes that the early practices, especially the methodology of John Marshall, provide a powerful model, not of an anticipatory textualism, but rather of a sophisticated methodology that knit together text, context, purpose, and democratic and constitutional norms in the service of carrying out the judiciary's constitutional role.
Because litigation has changed so dramatically in the last half century, scholars tend to view contemporary civil procedure as raising new problems that require new solutions. We have overlooked that many of these problems can be explained, and even resolved, using an age-old judicial role. There are two contexts in particular in which scholars have identified problems with judicial practices, but have been unable to agree on solutions. One is pretrial practice, where controversy abounds over the management strategies judges use to cope with overzealous litigants and overcrowded dockets. The other is class action litigation, where debate focuses on judicial review of proposed settlements and the judge's duty to protect absent class members. Although scholars have explored the tradeoffs posed by current practices and proposed reforms in both areas, they have lacked a framework with which to connect these problems or build a consensus for reform. This Article suggests that the framework we need has been available all along. Our best hope of understanding, and ultimately resolving, these controversies lies in a model of judging that prevailed for centuries and was captured by Lon Fuller in the 1950s. Although scholars rarely invoke tradition expressly, their debates over pretrial practice and class action litigation often boil down to a debate over the value and vitality of the traditional judicial role. Fuller identified two core elements of the traditional judicial role: Judges must rely on parties to frame disputes and on legal standards to help them resolve disputes. Scholars have overlooked that judges today sometimes respect these two characteristics and sometimes do not, and that it is precisely where judges stray furthest from tradition - and proceed without the litigant input or legal criteria to which they are accustomed - that judicial conduct triggers controversy. There are powerful reasons why judges should remain faithful to their traditional role even as they update it to respond to new challenges. Judges should do so not for tradition's sake, but rather because their traditional role reflects their core institutional competence, their place in the constitutional structure, and the considered judgment of two centuries of judges who faced problems surprisingly similar to those that judges confront today. This Article explores the institutional, constitutional, and historical underpinnings of the traditional judicial role, highlighting overlooked parallels between the new problems judges face in pretrial practice and class action litigation today and old ones that judges confronted, and largely overcame, in nineteenth-century trial practice and twentieth-century administrative law.
This article traces the decline in the portion of cases that are terminated by trial and the decline in the absolute number of trials in various American judicial fora. The portion of federal civil cases resolved by trial fell from 11.5 percent in 1962 to 1.8 percent in 2002, continuing a long historic decline. More startling was the 60 percent decline in the absolute number of trials since the mid 1980s. The makeup of trials shifted from a predominance of torts to a predominance of civil rights, but trials are declining in every case category. A similar decline in both the percentage and the absolute number of trials is found in federal criminal cases and in bankruptcy cases. The phenomenon is not confined to the federal courts; there are comparable declines of trials, both civil and criminal, in the state courts, where the great majority of trials occur. Plausible causes for this decline include a shift in ideology and practice among litigants, lawyers, and judges. Another manifestation of this shift is the diversion of cases to alternative dispute resolution forums. Within the courts, judges conduct trials at only a fraction of the rate that their predecessors did, but they are more heavily involved in the early stages of cases. Although virtually every other indicator of legal activity is rising, trials are declining not only in relation to cases in the courts but to the size of the population and the size of the economy. The consequences of this decline for the functioning of the legal system and for the larger society remain to be explored.
This Article represents a revised and expanded version of a talk given at the Sixth Annual Conference on Critical Legal Studies, which was held at Harvard Law School in March 1982.