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 “doctrinal-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 justice system 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 doctrinal-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

The Celotex Initial Burden Standard and an Opportunity to “Revivify” Rule 56

This article provides a pragmatic review of the summary judgment process and offers a new methodological approach to critiquing the Federal Rules of Civil Procedure. Using qualitative empirical methods to focus on the defendant\u27s initial burden standard under the watershed case Celotex v. Catrett, the article calls on two new sets of data - a broad survey of published and unpublished district and appellate court opinions and a focused survey of district court cases from a single federal district court - to evaluate the critical responses to the case. The article finds that those who criticize the Celotex initial burden standard have not accurately predicted how defendants would respond to the change and that those who support it, while not completely vindicated in their views of the overall system, are correct in arguing that other procedural rules cabin defendants\u27 actions. Using these results, this article calls into question how we respond to changes in procedural rules. It argues that the mistaken responses to Celotex are due to a failure to account for the complexity of modern federal litigation when evaluating procedure. Moreover, it argues that such an atomistic approach can adversely affect the way the rules are drafted and amended. Procedural rules cannot be viewed in a vacuum. The article asserts that the rules are a part of a sophisticated process with different interests (attorney fees, judicial ethos, party preferences, etc.) at play; to draft, amend, or critique the rules without an appreciation of these other real-world considerations is to do them a great disservice

Abrogation Magic: The Rules Enabling Act Process, Civil Rule 84, and the Forms

The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof - after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act process. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change to the Rules to which they correspond. Yet, the proposal to abrogate Rule 84 and the Forms has received little attention, with commenters instead focused on proposed discovery amendments. This Essay argues that inattention to the proposed abrogation of Rule 84 and the Forms is a mistake, and that the Forms should not just disappear

Civil-izing Federalism

When Chief Justice Roberts and Justice Alito joined the United States Supreme Court, most commentators predicted it would become more conservative. Indeed, many believed that the reinvigorated federalism revolution under Chief Justice Rehnquist would, if anything, become more robust under the new chief. To a large degree, those commentators were right; the Court has decided numerous hotly contested federalism cases along predictable ideological lines. But there are some important counterexamples in the Court’s federalism jurisprudence. In a list of cases about access to plaintiff-friendly state courts, the Justices seem to abandon their federalism principles. Instead, the liberal wing of the Court generally votes in favor of robust states’ rights, while the conservative wing votes to impose defendant-friendly federal rules in civil litigation or to require plaintiffs to proceed in relatively hostile federal courts. This article is the first to focus on the Roberts Court’s treatment of federalism in civil procedure cases and the consequences for private civil litigation. It argues that the apparent disconnect between individual Justices’ stances in procedural cases and their federalism commitments is due, at least in part, to the Justices’ understandings of the purposes for, and effectiveness of, the federal civil litigation system. By examining the Justices’ narratives about civil litigation, the article demonstrates that even as they invoke the language of federalism, the Justices’ positions in procedural cases correlate with the civil litigation interests they seek to protect: business interests for the conservative Justices and access to justice for the liberal Justices. This article concludes that these interests, and not federalism commitments, are far better predictors of how the Justices will decide procedural cases. Yet, the article argues, the Court should more closely adhere to traditional conservative federalism principles in this context. Procedural jurisprudence that is deferential to states in private civil litigation is likely to create greater access to the courts and thus a more just civil litigation system

Abrogation Magic: The Rules Enabling Act Process, Civil Rule 84, and the Forms

The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof - after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act process. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change to the Rules to which they correspond. Yet, the proposal to abrogate Rule 84 and the Forms has received little attention, with commenters instead focused on proposed discovery amendments. This Essay argues that inattention to the proposed abrogation of Rule 84 and the Forms is a mistake, and that the Forms should not just disappear

Recovering Access: Rethinking the Structure of Federal Civil Rulemaking

Access to the justice system, which is broadly defined in the article as the opportunity to resolve the merits of a legal claim, is declining. One source of this decline is the Civil Rules. This article examines how the institutional failings of the civil rulemaking process have allowed for the production of rules that diminish access. Rule 1 of the Federal Rules of Civil Procedure provides that the Civil Rules should facilitate the just, speedy, and inexpensive resolution of legal claims. While the Civil Rules Committee considers this timeworn mandate when drafting the rules, there is no agreement about how to interpret this three-part directive. The article argues that one interpretive principle should be access to the justice system. Examining the history, the article demonstrates that proponents of the Rules Enabling Act and court-based rulemaking envisioned and designed the rules with access firmly in mind. Indeed, although access was not the only concern, it was on equal footing with competing concerns, such as systemic efficiency. Over time, as the perception of a litigation explosion has created political pressure to reduce access to the justice system, rule makers have responded by creating rules that do just that. The article argues that access should be restored to its original status as a co-equal principle of civil rulemaking and that one way to do so is to modify the structure of the rulemaking process. Under the current institutional structure, the rulemaking body is more attuned to a view of litigation intent on reducing access. The article offers a spectrum of structural reforms that have the potential to reduce this bias. These proposals include modifying the Committee\u27s composition to be more representative of litigants and passing legislation that mandates access will be considered in the rulemaking process

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 “doctrinal-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 justice system 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 doctrinal-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

The Celotex Initial Burden Standard and an Opportunity to “Revivify” Rule 56

This article provides a pragmatic review of the summary judgment process and offers a new methodological approach to critiquing the Federal Rules of Civil Procedure. Using qualitative empirical methods to focus on the defendant\u27s initial burden standard under the watershed case Celotex v. Catrett, the article calls on two new sets of data - a broad survey of published and unpublished district and appellate court opinions and a focused survey of district court cases from a single federal district court - to evaluate the critical responses to the case. The article finds that those who criticize the Celotex initial burden standard have not accurately predicted how defendants would respond to the change and that those who support it, while not completely vindicated in their views of the overall system, are correct in arguing that other procedural rules cabin defendants\u27 actions. Using these results, this article calls into question how we respond to changes in procedural rules. It argues that the mistaken responses to Celotex are due to a failure to account for the complexity of modern federal litigation when evaluating procedure. Moreover, it argues that such an atomistic approach can adversely affect the way the rules are drafted and amended. Procedural rules cannot be viewed in a vacuum. The article asserts that the rules are a part of a sophisticated process with different interests (attorney fees, judicial ethos, party preferences, etc.) at play; to draft, amend, or critique the rules without an appreciation of these other real-world considerations is to do them a great disservice

Recovering Access: Rethinking the Structure of Federal Civil Rulemaking

Access to the justice system, which is broadly defined in the article as the opportunity to resolve the merits of a legal claim, is declining. One source of this decline is the Civil Rules. This article examines how the institutional failings of the civil rulemaking process have allowed for the production of rules that diminish access. Rule 1 of the Federal Rules of Civil Procedure provides that the Civil Rules should facilitate the just, speedy, and inexpensive resolution of legal claims. While the Civil Rules Committee considers this timeworn mandate when drafting the rules, there is no agreement about how to interpret this three-part directive. The article argues that one interpretive principle should be access to the justice system. Examining the history, the article demonstrates that proponents of the Rules Enabling Act and court-based rulemaking envisioned and designed the rules with access firmly in mind. Indeed, although access was not the only concern, it was on equal footing with competing concerns, such as systemic efficiency. Over time, as the perception of a litigation explosion has created political pressure to reduce access to the justice system, rule makers have responded by creating rules that do just that. The article argues that access should be restored to its original status as a co-equal principle of civil rulemaking and that one way to do so is to modify the structure of the rulemaking process. Under the current institutional structure, the rulemaking body is more attuned to a view of litigation intent on reducing access. The article offers a spectrum of structural reforms that have the potential to reduce this bias. These proposals include modifying the Committee\u27s composition to be more representative of litigants and passing legislation that mandates access will be considered in the rulemaking process