Burying (With Kindness) the Felicific Calculus of Civil Procedure

On January 2, 1986, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit announced to an astonished legal profession, not to mention the unsuspecting attorneys-of-record, that, in the future, the Seventh Circuit would decide whether to grant or deny a preliminary injunction by applying the following simple formula: P x Hp \u3e (1-P) x Hd With one fell swoop of his algebraic-judicial pen, Judge Posner not only stirred the deepest math anxieties of the practicing bar, but revolutionized preliminary injunction law. Despite Judge Posner\u27s protestations that his simple formula was not offered as a new legal standard, preliminary injunction law will never be the same. This Article addresses the transcendental question raised by this preliminary injunction formula: What hath Judge Posner wrought? On sober reflection, it is abundantly clear that Judge Posner\u27s preliminary injunction formula sprang full-blown from the head of an academic-economist turned judge. The preliminary injunction formula is a logical extension of Judge Posner\u27s desire to impose econometrics on all aspects of the law. Dissatisfied with the untidiness of mere mortal judicial decision making, Judge Posner intends to rationalize the law by Benthamizing it--by subjecting the law to a twentieth century version of felicific calculus. This Article sounds the alarm concerning Judge Posner\u27s seemingly innocent mathematical foray into preliminary injunction aw. Judge Posner\u27s formula should not be viewed simply as an intellectually diverting exercise, but should be recognized for what it truly is: the camel\u27s head in the tent. Judge Posner long has been an advocate of market analysis in appropriate substantive legal contexts such as antitrust, tort, corporation, securities, and tax law.\u27 With his preliminary injunction formula, however, he has crossed the great divide between market and nonmarket applications of econometrics. If Professor Posner has his druthers as a judge, he will reduce all of civil procedure to a neat set of formulas. This Article argues that Judge Posner\u27s efforts to Benthamize civil procedure are an abomination in theory and practice. Judge Posner\u27s preliminary injunction formula should be bur[ied] with kindness, and any further attempts to quantify civil procedure should be resisted swiftly and sternly. Econometrics should be relegated to limited substantive applications and not engrafted onto inappropriate procedural motions. Part II of this Article outlines the short happy life of formula Posner. This section first discusses Judge Posner\u27s articulation of the preliminary injunction formula in American Hospital Supply Corp. v. Hospital Products Ltd.1 and then describes the formula\u27s reception in the Seventh Circuit and among the district courts. Far from being repudiated outright, Judge Posner\u27s formula has taken shallow root at the trial court level. Significantly, however, trial judges have manifested groping uncertainties in utilizing the new-fangled formula. Consequently, recent Seventh Circuit decisions amply demonstrate the many problems inherent in quantifying the preliminary injunction process. Part III explores the roots of Judge Posner\u27s preliminary injunction formula and illustrates that the formula is a logical extension of Judge Posner\u27s lifelong commitment to rationalizing legal substance and procedure. This section demonstrates that Judge Posner is an intellectual heir of Jeremy Bentham, who attempted to develop a felicific calculus of the law, and Judge Learned Hand, who attempted to develop algebraic torts. More recently,Professor John Leubsdorf has provided Judge Posner with an economic analysis of preliminary injunctions, stressing minimization of error through probabilistic calculations. This section further demonstrates that these intellectual strands have merged in Professor Posner\u27s writing and Judge Posner\u27s decisions.\u27 More importantly, however, this section exposes the problems associated with applying econometric methodology to civil procedure, including the methodology\u27s reliance on unsound premises, uncertain probabilistic assessments, implicit subjectivity, and illusory objectivity. Part IV demonstrates that Judge Posner\u27s preliminary injunction formula is not an isolated decisional novelty. Instead, the formula represents an initial foray into mathematical civil procedure. Unless the formulaic approach is reproved swiftly, the legal profession can expect Judge Posner to announce additional procedural formulas. Judge Posner\u27s efforts to Benthamize civil procedure should be rejected because they undermine principled decisionmaking. This Article is not merely about preliminary injunctions. Nor is it a roaming discussion of the ever-burgeoning field of law and economics.\u27 Rather, it is an article that rejects and warns of the incipient Benthamization of civil procedure. In the final analysis, this Article is an attempt to supply reasoned argument to one district judge\u27s plaintive response to Judge Posner\u27s preliminary injunction formula: [I]f it ain\u27t broke, don\u27t fix it. \u2

Taking Adequacy Seriously: The Inadequate Assessment of Adequacy in Litigation and Settlement Classes

In the past decade, the debate over settlement classes has moved considerably beyond the sturm und drang inspired by the epic settlement classes in Amchem Products, Incorporated. v. Windsor\u27 and Ortiz v. Fibreboard Corporation. Whereas Amchem asked whether and on what terms federal courts were authorized to approve settlement classes, and Ortiz asked whether a mandatory, limited- fund global asbestos settlement was sustainable, the settlement class issue du jour focuses on the ability of litigants to collaterally attack settlements in remote forums and at remote times. Because the collateral attack problem is so vital to the sanctity of settlement classes, the locus of the debate over the future of settlement classes is centrally located in the issue of adequacy. Today, it seems beyond cavil that the federal class action rule authorizes settlement classes, even without a specific provision for settlement classes in Rule 23 of the Federal Rules of Civil Procedure. Indeed, the great rulemaking debate of the late 1990s over the possible amendment of Rule 23(b) to include a new subdivision that would have specifically authorized settlement classes now seems a quaint tempest in the class action teapot. During the past two decades, the courts, practicing attorneys, academic commentators, rulemaking committees, and interested spectators have come a long way in the class action wars. In addition to providing a rule basis for interlocutory appeal of class certification orders in 1998, the Advisory Committee on Civil Rules amended Rule 23 in 2003 to add new subsections dealing with appointment of class counsel and attorney fees. In large measure, these new provisions are relatively unimaginative, noninnovative, and work to simply codify existing case law. The Advisory Committee also tinkered around the edges of settlement classes, though again doing so without fully engaging the most pressing issues relating to settlement classes