Legal Theory Blog

Brunet on Arbitration & Federalism

Edward Brunet (Lewis & Clark Law School) has posted The Minimal Role of Federalism and State Law in Arbitration (Nevada Law Review, Forthcoming) on SSRN. Here is the abstract:

State arbitration law currently plays an atrophied and minimal role. Modern Supreme Court arbitration cases leave little room for the application of state arbitration law or policy. Federalism principles are ignored by these cases, despite the appropriate custom of deferring to state contract law norms. State arbitration laws have been preempted using an unusual preemption approach that eschews the more common obstacle test. State arbitration laws are also ignored by a series of cases that grant discretion to the arbitrator to decide procedural issues without any meaningful judicial review. We are left with an odd situation in which the only two situations in which state arbitration law applies are where the parties select state law in their agreement to arbitrate or where a transaction is truly intrastate in nature. Each of these situations is uncommon, leaving little role for state arbitration law in the arbitration field.

Oldfatehr on De Novo Review

Chad M. Oldfather (Marquette University - Law School) has posted Universal De Novo Review (George Washington Law Review) on SSRN.  Here is the abstract:

This article takes up the question of why appellate courts always review questions of law pursuant to the de novo standard of review. Put another way, it examines the familiar idea that appellate courts owe no deference to the legal rulings of trial judges. They must instead engage in what I refer to as universal de novo review - a practice pursuant to which appellate courts faced with legal questions always enjoy the authority to engage in plenary review, and never have the responsibility (or even the option) to defer to their trial-level counterparts. Despite - or perhaps because of - its familiarity and prevalence, universal de novo review has gone relatively unexamined by legal scholars. The article looks to fulfill that gap by undertaking a comprehensive analysis of its possible justifications. I also consider the appropriateness of a regime incorporating deference - something of a Chevron doctrine for trial courts - and outline some of the factors that should guide the exercise of such deference.

Highly recommended.

Adamson on Rule FRCP 52(A)

Bryan L Adamson (Seattle University School of Law) has posted Federal Rule of Civil Procedure 52(A) as an Ideological Weapon? on SSRN. Here is the abstract:

In this article, the author explores Federal Rule of Civil Procedure 52(a) and standard of review choice to determine whether appellate judges can exploit its terms to pursue ideological goals. The author examines the operative terms of Rule 52(a), viz., findings of fact, clear error, and documentary evidence, and concludes that they are so malleable as to give appellate judges wide discretion in deciding whether clear error, de novo, or some other standard of review is to be applied. The article then goes on to identify fact typologies appellate courts invoke (historical, ultimate, constitutional, legislative, sociological, scientific, political, economic, jurisdictional), some which also enables them to circumvent Rule 52(a) and engage in de novo review of a trial court's factual findings The article concludes that standard of review choices can serve as a prism through which to view a judge's ideological predisposition, especially when those choices are made in an undisciplined, unprincipled manner. The author argues that appellate courts' treatment of Rule 52(a) and fact typology can impair decisional legitimacy, administrative efficiency, and comity between the trial and appellate courts. As Rule 52(a)'s malleable character and fact typology serve important jurisprudential functions, the author makes several recommendations to clarify decisional rules as they apply to standard of review, and to mitigate unwarranted perception of ideological bias in making judgments about the applicable standard of review.

Riskin on & Welsh on Court-Oriented Mediation

Leonard L. Riskin and Nancy Welsh (Pennsylvania State University - Dickinson School of Law) have posted Is that All There is? 'The Problem' in Court-Oriented Mediation (George Mason Law Review, Vol. 15, 2008) on SSRN. Here is the abstract:

The "alternative" process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand "the problem" to be addressed in personal injury, employment, contract, medical malpractice and other "ordinary" civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues predominate; other potential issues - personal, psychological, relational, communitarian - disappear.

This approach to mediation may be satisfactory to many parties and appropriate for courts that must engage in the mass processing of cases. But at least some individual one-shot players, who suddenly must seek redress or defend themselves, need something more. This Article describes a case involving such parties, dealing with their son‘s heart-breaking disabilities and the narrow problem definition of their two mediations. We consider why the problem definition of their mediations mattered to these parties and how the mediation sessions could have been different. We then propose a systematic method that would enable the customization of mediation sessions, along with three initiatives that courts and private dispute resolution provides could adopt. These initiatives would provide parties with the opportunity to choose whether they wish to engage in a customized process. We also explore why courts should take the lead in experimenting with the breadth of the problems to be resolved by non-family civil court-oriented mediation.

Ward on Twombly

Ettie Ward (St. John's University - School of Law) has posted The After-Shocks of Twombly: Will We Notice Pleading Changes? (St. John's Law Review , Vol. 82, p. 893, 2008) on SSRN. Here is the abstract:

Bell Atlantic Corp. v. Twombly was decided by the Supreme Court on May 21, 2007 and has already been cited more than 9400 times as of March 15, 2008. The majority decision was not subtle in broadcasting its dissatisfaction with notice pleading, at least in large, complex, antitrust conspiracy cases, and the dissent certainly viewed the majority's holding as a procedural revolution. The bar and academic community immediately began to weigh in on the question of whether the new standard applies to all civil cases or merely to antitrust conspiracy cases, with most commentators concluding that the pleading landscape had shifted. The trickier questions are likely to revolve around how to satisfy the new standard in different cases. We have yet to parse fully the impact of Twombly or how significant an adjustment to practice it will require, but there will be a shake-out period (which is already well underway) in which lawyers will do what they have been trained to do namely, testing the limits and meaning of the new phraseology used by the Twombly court to measure and examine pleadings. This paper explores the contours of the post-Twombly landscape and discusses the questions and concerns that are likely to require court decision or rule revision.

Campbell on Twombly

Charles B. Campbell (Faulkner University, Jones School of Law) has posted A 'Plausible' Showing after 'Bell Atlantic Corp. v. Twombly' (Nev. L.J., Vol. 9, 2008) on SSRN. Here is the abstract:

The United States Supreme Court's decision in Bell Atlantic Corp. v. Twombly is creating quite a stir. Suddenly gone is the famous loosey-goosey rule of Conley v. Gibson that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Now a complaint must provide enough facts to state a claim to relief that is plausible on its face. Only decided last May, Bell Atlantic has been cited in over 3,700 cases. Already being described as a landmark decision, Bell Atlantic nonetheless has lawyers and judges scratching their heads over the precise pleading standard to apply in its wake. As the Second Circuit (mildly) put it, Considerable uncertainty concerning the standard for assessing the adequacy of pleadings has recently been created by the Supreme Court's decision in Bell Atlantic Corp. v. Twombly. Just what is a plausible showing that the pleader is entitled to relief under Rule 8(a)(2)?

I believe an answer lies in the 26-year-old decision of the Former Fifth Circuit in In re Plywood Antitrust Litigation. Plywood Antitrust requires, at a minimum, that a complaint . . . contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. Already used in more than half the circuits, this standard paraphrases advice found in the venerable WRIGHT & MILLER for nearly 40 years.

Properly applied, this all . . . material elements standard satisfies Bell Atlantic's plausibility requirement in all respects. The Plywood Antitrust pleading standard works well after Bell Atlantic, first, because the Supreme Court referred to the standard, albeit parenthetically, with approval in Bell Atlantic. Second, it does much to harmonize the Federal Rules' goal of dispensing with pleading technicalities while still requiring enough general factual information about a pleader's claim to make the notice in notice pleading meaningful. Finally, and perhaps most importantly, it gives lawyers, litigants, and courts a standard they can actually use when drafting, or assessing the sufficiency of, pleadings.

Miller on Tellabs v. Makor Issues & Rights

Geoffrey P. Miller (New York University - School of Law) has posted Pleading After Tellabs on SSRN.  Here is the abstract:

In Tellabs, Inc. v. Makor Issues & Rights, Ltd., the Supreme Court held that a securities fraud complaint will survive a motion to dismiss only if a reasonable person would deem the inference of [culpable state of mind] cogent and at least as compelling as any opposing inference one could draw from the facts alleged. This paper analyzes how the Tellabs test may be applied, identifies questions left open under the decision, and discusses broader implications of the opinion and the PSLRA. Among other things, the paper suggests that the PSLRA's heightened pleading rules have deformed the motion to dismiss to the point where it now operates in securities fraud cases as a hybrid falling somewhere in between the traditional Rule 12(b)(6) and Rule 56 summary judgment procedures.

Ahdieh on Intersystemic Governance & Modern Jurisdiction

Robert B. Ahdieh (Emory University School of Law) has posted From Federalism to Intersystemic Governance: The Changing Nature of Modern Jurisdiction (Emory Law Journal, Vol. 57, No. 1, 2007) on SSRN. Here is the abstract:

At heart, this introductory essay aspires to encourage scholars who write in widely divergent areas, yet share a focus on the changing nature of jurisdiction, to engage one another more closely. From Jackson's study of "convergence, resistance, and engagement" among courts, Kingsbury's study of "global administrative law," and Bermann's analysis of "transatlantic regulatory cooperation," to Resnik's evaluation of "trans-local networks," Weiser's account of "cooperative federalism" in telecommunications law, and Thompson's concept of "collaborative corporate governance," a related set of questions is ultimately at stake: How ought we understand the reach of any given decision-maker's jurisdiction? What are the implications of increasing overlap in such jurisdiction? And how should such overlap be "resolved"?

With an eye to encouraging heightened engagement among the wide range of scholars attentive to these questions, I draw on the diverse set of papers published in a recent symposium on "The New Federalism: Plural Governance in a Decentered World" - by David Bederman, Bill Buzbee, Charles Koch, Judith Resnik, Robert Schapiro, Mark Tushnet, and Ernie Young - to explore potential elements of a modern conception of jurisdiction. I highlight four features as particularly standing out in the collected works: (1) A pervasive sense of complexity and an emphasis on jurisdictional overlap as a critical source of that complexity; (2) A perhaps resulting attention to dynamics of coordination in law and regulation; (3) Suggestion of a certain interdependence of regulatory actors; and (4) An orientation to dynamics of persuasion, rather than more hierarchical mechanisms of regulatory control. Individually, these elements represent interesting and potentially useful subjects of study. Operating in conjunction, they would seem to represent something quite new in the nature (and study) of jurisdiction, offering a framework for future research, perhaps particularly across the otherwise divided scholarly spheres noted above.

Steinman on Erie

Adam Steinman (University of Cincinnati - College of Law) has posted What is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?) on SSRN.  Here is the abstract:

As when Erie Railroad v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren. The current situation is due in large part to federal courts' comparatively pro-defendant approaches to summary judgment, class certification, and other procedural issues. Last Term's decision in Bell Atlantic v. Twombly, which tilts federal pleading standards in favor of defendants, will likely have similar federalism implications. This Article presents a surprisingly straightforward argument that the Erie doctrine requires federal courts to follow state-law standards on summary judgment, class certification, and pleading. This argument has strong support in Supreme Court case-law and the black-letter framework for resolving Erie issues, yet it would significantly recalibrate the conventional understanding of judicial federalism in civil adjudication. Ironically, the 2005 Class Action Fairness Act (CAFA) - whose expansion of federal diversity jurisdiction over high-stakes civil litigation was a major political victory for the defense side - strengthens Erie's preference for state law, because it confirms that procedural disparities between state and federal courts cause precisely the kind of forum-shopping and inequitable treatment that Erie aims to prohibit. Because Erie is likely to play a critical role in the politically-charged arena of contemporary litigation, this Article also confronts some of the broader conceptual and theoretical problems that have plagued the Erie doctrine during its first seventy years. It proposes a theory that reconciles the reasoning of Justice Brandeis's Erie opinion with the subsequent evolution of the Erie doctrine and federal judicial power generally. This Article thus provides a coherent doctrinal framework for considering the challenges Erie may face in the years to come.

I read this earlier & just got off the phone with Steinman after a long talk.  Fascinating article & highly recommended.  This is very rich.  They key insight is Steinman's recognition that the rationale of Gaspareni extends to cases in which two conditions are met: (1) there is a substance-effecting difference between state and federal law, and (2) the federal rule of civil procedure underdetermines the outcome and hence requires "construction" (as opposed to "interpretation") in the technical sense.  Very cool.  The more controversial implication would be that some federal rules may violate 28 USC Sec. 2072(b) if they are substance affecting.

Steinman doesn't offer a complete theory of the conditions for a rule having validating substantive effects.  I have suggested that one possibility is that the rule would affect primary conduct ex ante from the perspective of the parties before the dispute arose.  If you are interested, my general theory of the line between substance and procedure can be found in Part II of :

Procedural Justice, 78 So.Cal. L. Rev.182 (2004)

If you are interested in procedure, read Steinman!

Legal Theory Lexicon: Procedural Justice

Introduction Recently, the Legal Theory Lexicon provided a very general entry on the the topic of justice. The notion of justice can be analyzed in many ways, but one good place to start is with Aristotle. Aristotle divides the topic of justice into two main parts, corrective justice and distributive justice. Distributive justice concerns the division of shares in social benefits and burdens; thus, many questions of tax policy are questions of distributive justice. Corrective justice involves the rectification of injustice, and thus includes a variety of topics from criminal law, torts, and contracts, among many others. Supplementing Aristotle's account, let us say that "procedural justice" is concerned with the means by which social groups (including governments, private institutions, and families) institutionalize the application of requirements of corrective and distributive justice to particular cases. This entry in the Lexicon provides an introduction to the idea of procedural justice for law students (especially first years) with an interest in legal theory.

Slicing a Cake Our approach to the idea of procedural justice may be made easier by using a simple example. Consider the familiar procedure for dividing a cake: the person who slices the cake picks last. What makes this a fair procedure? One answer to this question might be the following: there is an independent criterion of what constitutes a fair outcome, equal slices for all, and the slicer-picks-last rule assures that we will get to this outcome. Slicer-picks-last is fair because guarantees accuracy. Or does it? If we really wanted to assure perfectly equal slices, then we could use a compass and the principles of plane geometry, with equal shares as a more reliable result. But this strikes us as an undue amount of fuss to go through when slicing a cake. Perhaps, the reason we believe that the slicer-picks-last rule is a fair procedure is that it strikes a fair balance between the importance of the outcome and the cost of getting there: the rule gets us close to equal shares most of the time at a reasonable price. Slicer-picks last might be considered fair, because does a good job of balancing. Or is there something more to the idea that the slicer-picks-last rule is fair? Maybe the reason we believe that the slicer gets a fair share is because the slicer was the one who did the cutting; the slicer's participation in the cutting validates the outcome, even if the slicer ends up with a smaller slice (or among the calorie conscious, a bigger slice). Slicer-picks-last could be a fair rule, because of process independently of outcome.

Perfect, Imperfect, and Pure Procedural Justice These questions about the fairness of procedures for slicing a cake can be generalized by setting out a framework for analyzing the idea of procedural justice. In A Theory of Justice, John Rawls distinguishes three very general and abstract kinds of procedural justice: (1) perfect procedural justice, (2) imperfect procedural justice, and (3) pure procedural justice. Consider perfect procedural justice first. There are, he writes,

two characteristic features of perfect procedural justice. First, there is an independent criterion of what is a fair division, a criterion defined separately from and prior to the procedure which is to be followed. And second, it is possible to devise a procedure that is sure to give that desired outcome.

Rawls argues that our rule for the slicing of cakes is an example of perfect procedural justice. The person who slices picks last; Rawls believes that this procedure insures the equal division of shares. "Equal shares for each" is the independent criterion of a fair division; the slicer-picks-last rule is the procedure that reliably produces that outcome.
In the case of imperfect procedural justice, the first characteristic, an independent criterion for fairness of outcome, is present, but the second, a procedure that guarantees that outcome, is not. Rawls contends:

Imperfect procedural justice is exemplified by a criminal trial. The desired outcome is that the defendant should be declared guilty if and only if he has committed the offense with which he is charged. The trial procedure is framed to search for and to establish the truth in this regard. But it seems impossible to design the legal rules so that they always lead to the correct result. The theory of trials examines which procedures and rules of evidence, and the like, are best calculated to achieve this purpose consistent with the other ends of the law. Different arrangements for hearing cases may reasonably be expected in different circumstances to yield the right results, not always but at least most of the time.

Thus, imperfect procedural justice incorporates the notion of an independent criterion for accuracy but adds the notion of "other ends of the law," e.g., considerations of cost that may be balanced against accuracy. The final notion is "pure procedural justice." Rawls writes:

[P]ure procedural justice obtains when there is no independent criterion for the right result: instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed. This situation is illustrated by gambling. If a number of persons engage in a series of fair bets, the distribution of cash after the last bet is fair, or at least not unfair, whatever this distribution is.

Pure procedural justice rejects an underlying assumption of both perfect and imperfect procedural justice--the assumption that there is an independent criterion for what constitutes the correct outcome. There are not criteria for the correct outcome except for an ideal (or actual) set of procedures.

Three Models of Procedural Justice: Accuracy, Balancing, and Participation Rawls's theory provides an abstract framework that can be used to categorize theories of procedural justice, but it doesn't tell us what the content of a theory of procedural justice might be. Three approaches have been characteristic of thinking about procedural justice--one emphasizes accuracy, the second cost, and the third participation. Each of these three approaches can be expressed as simply model of procedural justice:

The Accuracy Model We can begin with the utopian hypothesis that the current doctrine is structured by an implicit conception of perfect procedural justice?the accuracy model?corresponding to the idea of perfect procedural justice. The core idea of this model is that the aim of procedure is a search for truth?e.g. conclusions of law that are correct and findings of fact that are true.

But there are severe problems with the accuracy model. Given that civil procedure imposes real costs on litigants and society at large, it is difficult to argue that the smallest marginal gain in accuracy is worth the largest investment of resources. Justice has a price, and there is a point at which that price is not worth paying. Moreover, we have every reason to believe that accuracy is subject to the law of diminishing returns. If we were to make perfect accuracy our highest commitment, we would find that as we got closer and closer to our goal, the cost of reducing the marginal rate of error would become higher and higher. We will reach a point where society would be required to invest enormous resources for the most infinitesimal gain in accuracy.

The Balancing Model The second model "the balancing model" corresponds to the idea of imperfect procedural justice. The consequentialist version of imperfect procedural justice finds substantial support in the decisions of the Supreme Court that interpret the Due Process Clauses of the United States Constitution. The most striking example is provided by the balancing test announced in Mathews v. Eldridge:

[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Beginning with the emphasis on balancing in doctrine, we could construct a utilitarian conception of imperfect procedural justice. This effort is complicated, however, because there are many forms of utilitarianism; for our purposes, we might consider ideal rule utilitarianism, in which an act is right if and only if it is conformity with the system of rules, which if universally followed would produce the best consequences. Let us make a further simplifying assumption: that all of the relevant costs can be expressed as prices. The resultant approach will be roughly similar to some law and economics approaches.

Consider for example, Richard Posner's economic analysis of procedure. He writes, "The objective of a procedural system, viewed economically, is to minimize the sum of two costs. The first is "the cost of erroneous judicial decisions." The second type of cost is "the cost of operating the procedural system." Operating costs are borne by the public, in the form of subsidies to the judicial system and by the parties in the form of court fees, attorneys' fees, and litigation costs.

The Participation Model The third model--the participation model?corresponds to the idea of pure procedural justice. The key notion is that it is it is participation in the process and not outcome that defines procedural justice. The second interpretation of the participation model connects the independent value of process with the dignity of those who are affected by legal proceedings. One way of articulating this central notion is that everyone is entitled to their day in court. This right to participation is justified by a background right of political morality, i.e. the right of persons (or citizens) to be treated with dignity and respect. A procedure which ensures parties an opportunity to participate in the process of making decisions that affect them might be counted as a just procedure for this reason, independently of the correctness of the outcome that results from the procedures.

On influential version of the participation model has been developed by Jerry Mashaw. Mashaw states the intuitive idea as follows:

At an intuitive level, a dignity approach is appealing. We all feel that process matters to us irrespective of result. This intuition may be a delusion. We may be so accustomed to rationalizing demands for improvement in our personal prospects, in the purportedly neutral terms of process fairness, that we can no longer distinguish between outcome-oriented motives and process-oriented arguments. * * * Yet there seems to be something to the intuition that process itself matters. We do distinguish between losing and being treated unfairly. And, however fuzzy our articulation of the process characteristics that yield a sense of unfairness, it is commonplace for us to describe process affronts as somehow related to disrespect for our individuality, to our not being taken seriously as persons.

In recent years, the question whether participation has value that is independent of outcomes has been enormously controversial. The participation model reflects the view that participation matters for reasons other than cost and accuracy. Most advocates of the balancing model deny that participation has independent value--other than a subjective taste for participation which can be weighed in a cost-benefit analysis.

Conclusion Of course, procedural justice is a very large topic, and we have only begun to scratch the surface. Law students encounter ideas about procedural justice in a variety of courses: Civil Procedure, Criminal Procedure, and Administrative Law are among the classes in which procedural justice may become an important focus of discussion. I hope this Lexicon post gives you a lively sense of the basic structure of legal thinking about procedural justice.

Online Resource

Lawrence Solum, Procedural Justice (PDF)

Bibliography

• Robert Bone, Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness, 83 B.U. L. REV. 485, 488-89 (2003).
• Mathews v. Eldrige, 424 U.S. 319 (1976).
• Jerry L. Mashaw, Due Process In The Administrative State (1985).
• Richard Posner, Economic Analysis Of Law (1992).
• John Rawls, A Theory Of Justice (1971)

(This entry was last revised on April 13, 2004.)