A Critical Guide to Civil Procedure

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The Vanishing Plaintiff

What if restrictive procedural rules kept cases like Bakke v. Regents of the Univ. of Cal., Monell v. Dept. of Soc. Servs., and Hopkins v. Price Waterhouse from making it past a motion to dismiss and on to the Supreme Court? A case like Bakke is well-known for its holding about the use of race in admissions policies. But imagine that Alan Bakke was never able to get his original trial court complaint past a motion to dismiss, through discovery, and on to a final, appealable judgment. While reasonable people can disagree about the merits of Bakke, it is fair to say that our collective legal consciousness would be altered had he not been able to have his paradigmatic day in court. Yet, that world - the one without Bakke and his legal claim - is exactly the world in which our civil justice system increasingly finds itself. Plaintiffs like Bakke are simply vanishing, and the restrictive procedural regime is largely to blame. Over the past thirty years, Congress, the Supreme Court, and the civil rule-making bodies have responded to the argument that litigation is burdensome by restricting access to the system itself through changes to procedural doctrine. These institutions are concerned about the effect that merit-less litigation has on defendants. Yet, both the institutions responsible for formulating procedure and the scholars that critique the same have failed to carefully consider one critical issue: the identity of the plaintiffs whose meritorious claims are sacrificed under a restrictive procedural regime. We already know the identity of the defendants that most benefit under this regime - they are corporations, government bodies, and other organizations. But, the identity of the plaintiffs whose meritorious claims are lost is unknown and unstudied. This article constructs an identity for these plaintiffs by arguing that recent restrictive procedural changes, like those to pleading and summary judgment, interact differently with some plaintiffs’ distinctive characteristics, like race, economic status, and/or gender. The result is that these plaintiffs - who the article calls vanishing plaintiffs - are less able to bring their claims. They are either barred from pursuing their claims by operation of a particular procedural rule or they are unable to get their claims into the system at all because of the regime’s overall chilling effect. The loss of these claims comes at a high systemic cost. Litigation by vanishing plaintiffs has historically created new bodies of law and has served to enforce that law when other enforcement mechanisms have failed. With the exclusion of the vanishing plaintiff and her claims comes the loss of these critical path-breaking and enforcement mechanisms. Thus, in order to regain this benefit, the institutions responsible for crafting procedural doctrine should carefully consider how changes in procedure impact vanishing plaintiffs. This article argues that such a consideration will often require a retreat from the current restrictive procedural regime

Prison Is Prison

Two indigent men stand before two separate judges. Both will be sent to prison if they lose their cases. One receives appointed counsel, but the other does not. This discrepancy seems terribly unjust, yet the Supreme Court has no problem with it. It recently affirmed in Turner v. Rogers, that where an indigent individual is subject to criminal charges that can result in incarceration, he has a right to appointed counsel, but where an indigent individual is subject to civil proceedings where incarceration is a consequence, he does not. In other words, criminal and civil proceedings have different rules, and the right to appointed counsel is no exception. This Article argues that because the consequence of these proceedings is exactly the same, the right to appointed counsel should be the same. Prison is prison. This consequence, and not just doctrinal distinctions, should guide the Court’s analysis in deciding whether an indigent individual receives appointed counsel. By systematically examining the Court’s narratives in both criminal and civil right-to-counsel cases, this Article seeks to determine why the Court continues to treat the same situation so differently. The Court states that it is driven solely by doctrine, but it uses radically different language to discuss the individuals, attorneys, and nature of the proceedings in the criminal versus civil setting. This Article argues that the Court’s different goals in the criminal and civil context better explain the Court’s approach than doctrinal distinctions alone. With criminal cases, its goal is legitimacy, while with civil cases, its primary goal is efficiency. This Article questions the Court’s “doctrine-oriented” approach in the civil context, and argues that what the Court is really doing is allowing its treatment of cases in the broader civil justicesystem to affect its jurisprudence in this context. It does this even when the consequence of a typical civil case is so different. After all, the result in a case like Turner is prison, not monetary damages or injunctive relief. Instead of taking this doctrine-oriented approach, this Article argues that the Court’s analysis should be “consequence-driven.” Where prison is the consequence, the Court’s underlying analysis of right to counsel should be the same whether the proceeding is criminal or civil. Using the Court’s decision in Turner, the Article shows how a consequence-driven approach could have changed the result in that case

Discovering Innovation: Discovery Reform & Federal Civil Rulemaking

Federal civil rulemaking—the process by which the Federal Rules of Civil Procedure are created and maintained—has simultaneously been described as a crisis and a crowning achievement. This Article departs from this binary and pragmatically turns to a consideration of how the committee operates. Using the lens of discovery reform, this Article examines how the rulemaking process has evolved over the past 35 years. The ups and downs of discovery reform have inspired the committee to adopt many modern rulemaking innovations. Those innovations, this Article argues, are critical to the success of the rulemaking process because they provide rulemakers with better information. Finally, discovery reform and the committee’s responsive innovations are true to the ethos of the rulemaking process, a process that was designed to be reflective, deliberative, and adaptive

#SoWhiteMale - Federal Civil Rulemaking

116 out of 136. That is the number of white men who have served on the 82-year old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate even in the context of the white-male-dominated legal profession. Were the rules simply a technical set of instructions made by a neutral set of experts, perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rulemakers—while expert—are not apolitical actors. This essay argues that the homogeneous composition of the rulemaking committee, not only historically, but also today, limits the quality of the rules produced and perpetuates inequality. The remedy to this problem is straightforward: appoint different people to the rulemaking committee. To be sure, the federal civil rulemaking process is but one small part of where and how gender and racial identity matter. Even still, this essay argues that the rulemaking committee members, the Judiciary, and the Bar should demand that the civil rulemaking committee cease being #SoWhiteMale

Endangered Claims

Litigants—like organisms in an ecosystem—must evolve to survive our civil justice system. When procedural rules and doctrines that govern civil litigation change, litigants must respond. In some cases, litigants will adapt to the rules. In others, they will migrate to alternative fora to capitalize on the new environment’s rules. For those who cannot adapt or migrate, their claims will go extinct. This Article chronicles the evolution story of federal civil litigation by examining how, in response to changing procedural rules and doctrines, parties and their claims adapt, migrate, or go extinct. It shows that throughout this evolution, claims by the most resourced parties survive while claims by less resourced parties do not. This leads to the Article’s second contribution, which concerns implications for policymakers. If policymakers understand that, despite the procedural rules or doctrines they adopt, the most powerful litigants will almost always find a way to survive, that understanding should change how policymakers approach their work. More specifically, this Article argues that policymakers should abandon their distorted survival-of-the-fittest approach to procedural reform and instead adopt an Endangered Claims Act approach. Using such an approach, policymakers’ choices would be guided by meritorious claim conservation. Thus, if a procedural change would lead to claim extinction, policymakers would not pursue that change, even if it would otherwise benefit powerful litigants. Finally, to best implement this methodology, policymakers—like scientists observing a species in the wild—will need better information about how claims fare in our civil justice system. Obtaining that information will require greater data-gathering resources and a commitment to, where possible, funneling claims into public courts where they can be better monitored

What If?: A Study of Seminal Cases as if Decided in a \u3cem\u3eTwombly/Iqbal\u3c/em\u3e Regime

What if, like in It’s a Wonderful Life, we were able to go back and see what life would be like without a particular legal rule? In other words, what if we could be the George Bailey of law for a day? It is through this “what if” lens that this essay tackles the already well-discussed cases of Bell Atlantic v. Twombly and Ashcroft v. Iqbal. But, unlike the scholarship that has addressed these cases so far, this essay stakes out a completely different methodological approach. Rather than predicting what courts might do with Twombly and Iqbal going forward, it asks what might have been had Twombly and Iqbal existed decades ago. To engage in this exercise, the essay looks at actual complaints in cases that have become common parlance in legal circles, Bakke v. The Regents of the Univ. of Cal. and Hopkins v. Price Waterhouse, and applies the standards enunciated in Twombly and Iqbal to them. By doing so, the essay attempts to concretely think about the consequences of a Twombly/Iqbal pleading regime by considering the potential impact that a granted motion to dismiss might have had on cases that we take for granted today. This requires both micro and macro considerations. At the micro level, it is worth thinking about whether the complaint could have been re-filed and ultimately survive a motion to dismiss. At the macro level, the exercise involves a broader consideration of what would have happened had the case never been decided. In other words, how would the doctrines defined by that seminal case have been affected? And, even more broadly, how might the development of particular kinds of law practice changed and how might other modes of social change been utilized? By considering the effect of Twombly and Iqbal in this manner, the essay offers yet another way to consider the benefits and drawbacks of a Twombly/Iqbal regime

A Legal Fempire?: Women in Complex Civil Litigation

Justice Ruth Bader Ginsburg made headlines when she said that she would be satisfied with the number of women on the Supreme Court “when there are nine.” But why should that answer have been so remarkable? After all, there were nine men on the Court for nearly all of its history. Yet, Justice Ginsburg’s statement was met with amusement or from some quarters — disdain. What answer would have been considered more appropriate coming from a groundbreaking feminist litigator? Would four have been an acceptable answer? Would five have been presumptuous? This episode reflects our cramped view of how much representation women can and should expect in the loftiest reaches of the legal profession. And indeed, while women have been attending and graduating from law school in record numbers, they are only a fifth of the partners in law firms. Even when they make partner, they are paid nearly half the compensation of their male counterparts. Likewise, women continue to be underrepresented as state and federal judges, as appellate practitioners, and in complex litigation. This essay begins from the view that gender equity is important to the functioning and legitimacy of our legal system, and assesses gender equity — or rather the lack thereof — within the legal profession. First, the essay reflects on the gender bias task force movement that began almost four decades ago. Second, using a case study approach, the essay updates that work by examining the role of women on the Judicial Panel for Multidistrict Litigation, as judges, and in multidistrict litigation leadership roles. Finally, after assessing the ongoing barriers to gender equity in modern complex civil litigation as well as its modest genderequalizing reforms, the essay closes with a set of proposals for how to move toward gender equality

#SoWhiteMale: Federal Procedural Rulemaking Committees

Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That is 94 percent of the committee membership. Of that same group, 513—or 81 percent—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The Federal Rules of Practice and Procedure are not mere technical instructions, nor are they created by a neutral set of experts. To the contrary, the Rules embody normative judgments about what values trump others, and the rulemakers—while experts—are not disinterested actors. This Essay examines racial and gender diversity across six different committees through original research. The data tell a textured story of homogeneity, diversity, and power. Critically, the respective committees’ demographic compositions differ both historically and now. But there is one significant similarity across all committees: The Chief Justice can and should appoint a more diverse set of individuals to these committees, and the rulemaking committee members, the judiciary, and the bar should demand it