Legal Theory Blog

Bone on Procedure Theory & Rulemaking

Robert G. Bone (Boston University School of Law) has posted Making Effective Rules: The Need for Procedure Theory (Oklahoma Law Review, Vol. 61, p. 319, 2008) on SSRN.  Here is the abstract:

This essay is the published and somewhat expanded version of a presentation to the meeting of the AALS Section on Civil Procedure at the January 2008 AALS annual meeting. The essay argues that effective rulemaking in civil procedure requires not only more empirical work on how procedural rules actually operate in practice, but also more rigorous normative work on how rule choices can be justified in theory. The essay begins with a brief overview of the history of procedural reform, focusing on the Field Code reforms, the 1938 Federal Rule reforms, and the current reform movement that began roughly in the late 1970s. The essay argues that the current movement, in sharp contrast to the two earlier ones, lacks a sense of shared mission and common purpose, and that this normative gap adversely affects the quality of the rule reforms that are implemented. The essay then briefly discusses three fundamental normative issues that are in need of much more careful analysis: (1) the proper way to conceive the relationship between procedure and substantive law; (2) the proper role of settlement in civil adjudication, and (3) the proper way to value individual participation and the participation right.

Highly recommended.

LeRoy on Judicial Review of Arbitration

Michael H. LeRoy (University of Illinois College of Law) has posted Crowning the New King: The Statutory Arbitrator and the Demise of Judicial Review (Journal of Dispute Resolution, Vol. 29, No. 3, Spring 2009) on SSRN.  Here is the abstract:

Judicial review of arbitration awards is highly deferential- but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed awards. Nearly the same result was observed for a sub-sample of 44 employment discrimination awards under Title VII. By comparison, federal appeals courts in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

Why are the rulings of Article III judges scrutinized more than the awards of citizen-arbitrators? What does this mean when companies can avoid Article III court rulings by requiring employees to arbitrate their claims? Judicial review of awards based on statutory claims is inadequate, and undermines the constitutional role of federal courts.

I explore these empirical findings from a historical perspective. English kings and merchants helped to fashion modern arbitration. Nearly 700 years ago, small merchants traded goods at fairs that operated under a royal franchise. Arbitrators improved the efficiency of these markets by adjudicating transactional disputes. This role was codified by the Statute of the Staple of 1353, where the king delegated his sovereign power to ensure the success of the fair.

I point to two prominent junctures - in 1698, and again in 1925 - when lawmakers in England and the U.S. believed that court litigation hampered commerce. They enacted similar statutes to authorize courts to confirm disputed awards, unless these private rulings resulted from corruption or misconduct. This deference grew out of practical considerations. The parties had chosen the arbitrator, agreed to the private process, and bound themselves to an industry norm.

Courts deferred so heavily to awards because William III wanted these merchant tribunals to be autonomous. His law, the 1698 Arbitration Act, did not allow courts to vacate awards for fact finding or legal errors. Great deference in its reviewing standards reflected the king's infallibility.

My textual research shows that the FAA's reviewing standards descended from William III. I suggest that our law crowns today's statutory arbitrator with the king's mantle of infallibility. But this deference is too extreme for awards that rule on statutory claims. In Gilmer v. Johnson/Interstate Lane Corp., the Supreme Court ignored the commercial history of arbitration when it broadly approved a theory of forum substitution. Gilmer said that arbitrators may decide statutory claims, even if one disputant objects to the forum and wishes, instead, to be heard by a court. The result is that the ruling of the arbitrator is subject to a narrower standard for review than an Article III judge's order. Epitomizing this regal deference, a contemporary court said: "The arbiter was chosen to be the Judge. That Judge has spoken. There it ends." In textual and empirical analysis, I show that statutory arbitrations enjoy a presumption of royal infallibility. I conclude with two solutions for aligning the review of rulings by statutory arbitrators and Article III judges.

Gomez on Aggregation of Litigation in Latin America

Manuel A. Gomez (Florida International University - College of Law) has posted Class Actions, Group Litigation and Other Aggregative Procedures in Latin America: A General Overview on SSRN.  Here is the abstract:

This article offers a synopsis on the current status of class actions, and other forms of aggregative and collective litigation that exist in Latin America. In light of the limited scope of this article, my goal is to simply present a general report that highlights the differences and similarities in procedural rules and legal practices regarding the use of remedies against collective harms. Special attention is given to those countries that have developed a legal framework for the protection of individual and collective rights through different forms of aggregative processes, with particular focus on the potential for and the obstacles that affect the various forms of collective litigation in the region.

Burch on Nonclass Aggregation & Procedural Justice

Elizabeth Chamblee Burch (Florida State University - College of Law) has posted Procedural Justice in Nonclass Aggregation (Wake Forest Law Review, Forthcoming) on SSRN.   Here is the abstract:

Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions. Although scholars have formulated procedural protections for both extremes, the unique danger and allure posed by nonclass aggregation has been undertheorized, leaving mass tort claimants with inadequate safeguards. When hallmark features of mass torts include attenuated attorney-client relationships, numerous litigants, and the demise of adversarial legalism, the attorney-client relationship itself becomes another bargaining chip in the exchange of rights. This Article thus takes the initial steps toward advancing a cohesive theory of procedural justice in nonclass aggregation by exposing the problem itself, discerning the principal disparities between litigant preference and mass tort practice, and identifying the main obstacles to implementing procedural preferences. In so doing, it observes that procedural justice is context-dependent and thus a matter of perspective. Claimants' perspectives and procedural preferences vary depending on whether they view themselves as part of a group or a collective. Accordingly, this Article introduces a continuum for evaluating group cohesion and designates two new points along that continuum-"individuals-within-the-collective" and "group-oriented-individuals." It concludes by sketching some preliminary observations about tailoring process to meet the needs of these different plaintiffs and the inherent barriers to implementing procedural justice.

And from the article:

As defined by social psychologists, procedural justice, as opposed to distributive justice, is the belief that the dispute resolution process is fair and satisfying in and of itself.21 More specifically, as [one writer] defines the term, procedural justice “is concerned with the adjudicative methods by which legal norms are applied to particular cases and the legislative processes by which social benefits and burdens are divided.”22 So procedural justice has both an objective and a subjective component: it is a fair means for applying legal norms and resolution procedures to particular cases that is, in turn, psychologically satisfying to the participants.

And:

Though we often draw sharp lines when contemplating individual versus class litigation, no lines exist. Instead, there are various degrees of interpenetration and cohesion—multiple issues within litigation create harmony or conflict. So consider first the extremes. At one end of the continuum lies individual litigation where each individual pursues exclusively her own goals. At the other end, beyond even class litigation, lies pure group cohesion where the group obtains and maintains perfect consensus.

Between those extremes, this continuum recognizes that claimants’ perspectives vary by group formation, solidarity, and homogeneity; the mass tort’s maturity level; the timing and method of aggregation; and how and when claimants secure representation. Aggregation and representation may occur in any number of ways: some claimants may enter into contingency-fee agreements with specific attorneys who represent similar claimants—the aggregation here may occur either purposefully through the attorney or through coercive court-mandated consolidation procedures. Others may first form an interest group and then seek collective representation. Still others may join the litigation post-aggregation after hearing about it in the news or through attorney advertising.55 For ease of reference, I will identify two sub-points within aggregate litigation: “individuals-within-the-collective” and “group-oriented individuals.”

Highly recommended.

Steinman on the Proposed Amendments to Rule 56

Adam Steinman (University of Cincinnati - College of Law) has posted An Ounce of Prevention: Solving Some Unforeseen Problems with the Proposed Amendments to Rule 56 and the Federal Summary Judgment Process (Northwestern University Law Review, Forthcoming) on SSRN.  Here is the abstract:

The Civil Rules Advisory Committee has recently proposed the most significant revisions to Rule 56 since the Federal Rules of Civil Procedure were adopted seventy years ago. Although the stated goal of the proposed amendments is laudable - "to improve the procedures for making and opposing summary-judgment motions, and to facilitate the judge's work in resolving them" - this Essay in the Northwestern University Law Review Colloquy identifies some unanticipated problems with the proposed text. Contrary to the Advisory Committee's intent, the proposed text may inadvertently make substantial changes to the summary-judgment standard and the burdens on litigants at the summary-judgment phase. This Essay suggests specific solutions that would eliminate the potentially troubling consequences of the new rule while preserving its important improvements to the summary-judgment process.

And from the text:

As an initial matter, the proposed amendments may inadvertently modify the summary-judgment burden that applies to the party (typically the plaintiff) who will bear the burden of production at trial. The text provides that parties may support their factual positions by “showing . . . than an adverse party cannot produce admissible evidence to support the fact.”10 A plaintiff who bears the burden of production at trial, however, should never be able to support its factual position simply by showing that the defendant will not be able to produce admissible evidence to support its view of the facts. That is precisely the view of summary judgment that the Supreme Court rejected in Celotex. If the defendant can show that the plaintiff will lack sufficient evidence to satisfy the plaintiff’s burden of production at trial, the defendant need not “support its motion with affidavits or other similar materials negating the opponent’s claim.”11

The impact of the proposed amendments would be even more remarkable when the party with the burden of production seeks summary judgment. If taken literally, the proposed rule would allow a plaintiff to support summary judgment in its favor simply by showing that the defendant “cannot produce admissible evidence” at trial.12 This would be a drastic change to current summary-judgment burdens. Even if the defendant (who ordinarily does not bear the burden of production for the elements of a plaintiff’s claim) will have no admissible evidence it can use at trial, the defendant should prevail as long as the plaintiff fails to meet its burden of production. The defendant’s lack of evidence— standing alone—surely cannot be a sufficient basis for awarding summary judgment to the plaintiff.

Steinman's arguments are at least plausible, and surely deserve serious consideration.  My own sense is that complexification of the federal rules frequently leads to unintended consequences, and I am quite skeptical of the proposed Rule 56(c) procedures--essentially an attempt to create a highly formalized set of procedures that micromanage the contest over the application of the "genuine issue of material fact" to the record.

Proceduralists will surely want to read Steinman's lucid, brief, and illuminating essay.

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.