Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in a Digital Age

Cases are won and lost in discovery, yet discovery draws little academic attention. Most scholarship focuses on how much discovery to allow, not on how courts decide discovery disputes-which, unlike trials, occur in most cases. The growth of computer data-e-mails, lingering deleted files, and so forth-increased discovery cost, but the new e-discovery rules just reiterate existing cost-benefit proportionality limits that draw broad consensus among litigation scholars anti economists. But proportionality rules are impossible to apply effectively; they fail to curb discovery excess yet disallow discovery that meritorious cases need. This Article notes proportionality\u27s flaws but rejects the consensus blaming bad rulemaking or judging. Rather, proportionality requires impossible comparisons between discovery value and cost before parties gather the evidence. Like other arguments that procedural rulings should depend on case merits, this Article notes how discovery has more probative value in close cases-yet a case\u27s merits are unclear during discovery because the court cannot yet examine all the evidence. In game theory terms, parties with discovery disputes cannot convey case merit credibly; courts have too little information, so low-merit parties can claim high merit, and courts are compelled to act as if all cases of a similar type warrant similar discovery. In this pooling equilibrium, ruling the same on all cases in the pool, regardless of merit, is courts\u27 best strategy but a suboptimal one, yielding too much discovery in low-merit cases, too little in higher-merit ones. Thus, the quest for better discovery has disappointed not because of bad rules or decisions, but because courts and parties are stuck in a pooling equilibrium with information-timing circularity: optimal evidence gathering requires merits analysis, which in turn requires evidence gathering. As a solution, courts could defer close decisions on possibly useful but costly evidence until meritorious cases separate from the pool, turning pooling into separating equilibria. Summary judgment can be this separation: cases going to trial after summary judgment not only have higher average merit than the pool of all filed cases, but are disproportionately likely to be the sort of close calls in which juries struggle to reach verdicts. No one yet has proposed post-summary judgment discovery to redress the costly discovery dilemma because summary judgment typically occurs only after all discovery, but high-cost evidence can be an exception to that usual sequence: cases surviving summary judgment are close calls warranting more fact gathering, so some costly discovery regularly denied should be allowed after summary judgment. Thus, the existing debate is too focused on limiting the amount of discovery; it should instead focus more on timing costly discovery optimally, to try to limit discovery to cases in which it is truly needed. Existing rules give courts discretion to use this proposal, but a new rule could minimize the risk of misusing the proposal to deny more discovery. This Article concludes by briefly noting how economic analyses must consider the details and information timing of the litigation process

Fighting Discrimination While Fighting Litigation: A Tale of Two Supreme Courts

The U.S. Supreme Court has issued an odd mix of pro-plaintiff and pro-defendant employment law rulings. It has disallowed harassment lawsuits against employers even with failed antiharassment efforts, construed statutes of limitations narrowly to bar suits about ongoing promotion and pay discrimination, and denied protection to public employee internal complaints. Yet the same Court has issued significant unanimous rulings easing discrimination plaintiffs\u27 burdens of proof. This jurisprudence is often miscast in simple pro-plaintiff or pro-defendant terms. The Court\u27s duality traces to its inconsistent and unaware adoption of competing policy arguments: Policy 1: Employees must try internal dispute resolution before suing--or lose their claims. Policy 2: Employees must sue promptly after discrimination starts--or lose their claims. These policies are plausible independently but incoherent together. Harassment plaintiffs lose by suing too quickly, without trying internal resolution; pay or promotion discrimination plaintiffs lose by delaying suit to seek internal resolution. This inconsistency exists even within the same cases: dual-claim plaintiffs alleging both harassment and pay or promotion discrimination face competing demands to file promptly and to delay filing. The Court has given no rationale for this difference, and the reverse would make more sense: delaying litigation is more troubling for he-said/she-said harassment cases than for pay disparity cases based on objective data, and day-to-day harassment seems harder to resolve internally than pay disparities. An explanation for this inconsistency is that the Court has wavered in its commitment not to fighting discrimination, but to fighting discrimination with litigation--a theory based on the Court\u27s broader hostility to litigation as a tool of dispute resolution. Thus, the Court continues to produce pro-plaintiff outcomes with its continued adherence to the policy of broadly construing Title VII--except in cases implicating anti-litigation policies. The Court\u27s anti-litigation policies, however, place inconsistent demands on employees and significantly harm the Court\u27s commitment to the older policy of construing discrimination statutes broadly. Lower courts can mitigate these problems in several ways: exempt dual-claim harassment plaintiffs from requirements of pre-litigation dispute resolution, broadly construe exceptions to that requirement (which most courts wrongly construe as a per se rule), and mitigate the harshness of short limitations periods with a discovery rule that the limitations period begins not when discrimination starts, but when the employee reasonably should have discovered the discrimination

Students and Workers and Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring of First Amendment Doctrine

First Amendment free speech doctrine has been called institutionally oblivious for ignoring how different institutions present different legal questions. This Article analyzes a little-discussed phenomenon in the growing literature about institutional context in constitutional law. With certain institutions, the situation is not institutional obliviousness but the opposite: extreme institutional tailoring of speech doctrine. The burden of proof ordinarily is on the government to justify speech restrictions, but in three institutions--public schools, workplaces, and prisons--courts allow heavy speech restrictions and defer to government officials. Even if these institutions need to restrict speech unusually often, why do we need different doctrine--institutionally tailored government-deferential standards--rather than standard heightened scrutiny? Courts have given no real answer. This Article serves three purposes. First, it attempts a descriptive analysis of why courts might perceive a need to tailor doctrine to these institutions. The two main arguments are waiver and risk. The waiver argument is straightforward. Individuals in certain institutions made a free, ex ante choice to enter a setting with restrictive rules. The risk argument is somewhat more involved. Heightened scrutiny, by declaring speech restrictions presumptively invalid, risks erroneously allowing dangerous speech in institutions in which there is both high error cost and high error probability. Error cost is high if a court erroneously allows disruptive speech in, for example, a prison prone to riots. Error probability is high because in these complex institutions, information costs are high for courts (so courts should defer to institutional judgments) and speech restrictions are warranted more often (so even a modest rate of error can yield a high number of errors). This risk analysis suggests that economics can help analyze constitutional issues involving risk and error cost and probability. Second, this Article undertakes a critical analysis of the above arguments for institutional tailoring, finding several flawed or overstated. The waiver argument contravenes precedent (and so cannot be courts\u27 actual reason) and is based on exaggerated premises of free choice and foreseeable consequences. The error cost point is exaggerated because the government can often guard against harmful speech with monitoring rather than a ban. The error probability argument assumes high information costs of courts evaluating these institutions, yet courts regularly handle cases in more complex institutions. The waiver and risk arguments are exaggerated but not wholly unfounded. Both are stronger for prisons; and the waiver argument is stronger for workplaces than schools. This Article offers a typology of the strength of the waiver and risk arguments in each institution. Third, this Article proposes that speech law, like equal protection law, apply heightened scrutiny in all institutions, though with modest tailoring. Considering institutional context is good in moderation, bad in excess. By dividing speech rights so starkly by institution, courts have not recognized, but rather overstated, the uniqueness of schools, workplaces, and prisons--and allowed more speech restriction than is justified. This risk of exaggerating uniqueness is inherent to tailoring and should give courts pause before tailoring constitutional law. This Article concludes with a pragmatic proposal to scale back the tailoring of speech doctrine: Courts should apply intermediate scrutiny to speech claims in these institutions

Where There\u27s At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment at Will

Employment at will, the doctrine holding that employees have no legal remedy for unfair terminations because they hold their jobs at the will of the employer, has become mired in incoherence. State courts praise the common law rule as essential to free enterprise and central to the free market, but in recent years they increasingly have riddled the rule with exceptions, allowing employee claims for whistleblowing, fraud, etc. Yet states have neither rejected employment at will nor shown any consistency in recognizing exceptions. Strikingly, states cite the same rationales to adopt and reject opposite exceptions, as a case study of two states illustrates: One state accepts exception X to protect employees while rejecting exception Y to maintain employment at will; yet on the same rationales, the other accepts exception Y while rejecting X. This dissonance, undiscussed among legal scholars, has broader implications as to legal doctrinal evolution. Inconsistent reliance upon a doctrine betrays judicial ambivalence in the form of judicial discomfort adhering to the rigid rule, discomfort rejecting it, and the inability to find an alternative. This is a recurring phenomenon in constitutional law as well, most notably in the Supreme Court\u27s recent treatment of abortion rights and governmental involvement in religion; in both fields, the Court has professed adherence to strict precedents while simultaneously eviscerating them. These examples show that what is happening to employment at will is not just quirky decision-making, but a common phenomenon in a doctrine\u27s evolution: When courts apply an established rule inconsistently, that may herald a decline, but not necessarily an imminent rejection, of that doctrine. If courts handle the decline badly, the outcome can be doctrinal chaos. This Article suggests how courts can retain employment at will while also lessening the doctrinal incoherence. Courts can recognize a range of employee claims based on a two-part theoretical structure: a broad economic conception of the public interest plus the limits of social norm theory. Recent scholarship argues that social norms are powerful protectors of fairness that make employment lawsuits unnecessary; but this Article\u27s analysis of how social norms operate distinguishes settings, like employment, where norms are too weak to substitute for lawsuits, leaving a need for a range of enforceable rights

Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs\u27 Briefs, Its Impact on the Law, and the Market Failure It Reflects

For a major field, employment discrimination suffers surprisingly low-quality plaintiffs\u27 lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs\u27 briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for win-loss rate, bad plaintiffs\u27 briefs far more often yield decisions crediting debatable defenses. These findings are puzzling. In a major legal service market, how can clients persistently choose bad lawyers, lawyers persistently perform so poorly, and judicial and ethics authorities tolerate this situation? Answers include poor client information, ethics authorities\u27 limited ability or will to discipline bad lawyers, and two troubling lawyer behaviors: (1) overoptimistically entering the field without realizing, until suffering losses, that it requires intensive research and writing; and (2) knowingly litigating on the cheap, rather than expending briefing effort to maximize case value, because contingency-paid lawyers may profitably run mills and live off quick, small settlements. A survey of the worst brief-writers\u27 law firms hints that the problem may be a mix of the former (nonspecialists in over their heads) and the latter (knowingly litigating cheaply). This Article offers the following reforms that, while no cure-all for a problem stemming from stubborn market forces, could help: (1) expanding educational efforts, including law school experiential learning, bar resource-sharing, and bar exam reform; (2) enhancing client access to information on lawyers by liberalizing ethics rules restricting expertise claims and public access to court files; (3) broadening the supply of competent lawyers by liberalizing rules restricting the standing to sue of discrimination testers and ethics rules on corporations owning law firms; and (4) toughening ethics enforcement against the worst offenders, who almost all go unpunished now

The Overhyped Path from Tinker to Morse: How the Student Speech Cases Show the Limits of Supreme Court Decisions--for the Law and for the Litigants

Each of the Supreme Court\u27s high school student speech cases reflected the social angst of its era. In 1965\u27s Tinker v. Des Moines Independent Community School District, three Iowa teens broke school rules to wear armbands protesting the Vietnam War. In 1983, amidst parental and political upset about youth exposure to sexuality in the media, Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier allowed the censorship of an innuendo-filled student government speech and a school newspaper article on teen pregnancy and parental divorce. In 2007, Morse v. Frederick paralleled the rise of reality television and online self-exposure in the 2000s: an iconoclastic student, long feuding with his principal, unfurled a cryptically drug-themed banner ( BONG HiTS 4 JESUS ) as national television news crews visited his sleepy Alaska town. Many depict the school speech cases as fundamental alterations of student-school relationships, or even of the basic role of minors in society. Tinker draws praise as the landmark decision on student rights and on minors\u27 constitutional rights generally; detractors complain that it departed from the traditional ... vision of education, which emphasizes order, civility, and the inculcation of virtue. And the broader body of school speech case law is a familiar three-act Supreme Court saga: the 1960s Warren Court declared a new right; the Burger and Rehnquist Courts chipped away at it; and the Roberts Court undercut it further, leading Tinker detractors to claim that the Court is restoring their preferred traditionalist vision, while Tinker supporters lament that the Court eviscerated Tinker with exceptions .. . swallow[ing] the Tinker rule and unquestioned deference to school officials. This Article argues that a closer look shows a more nuanced state of affairs than the prevailing narrative--that of landmark decisions sweepingly altering the legal landscape and handing parties dramatic victories and defeats. Instead, even such watershed decisions as the school speech cases show the limits of Supreme Court opinions, both for the law and for the litigants themselves. Close factual examination of these cases and the social settings in which they occurred shows not only that each case was a major life event for the student, school, and community--but also that each had a surprisingly modest real-world impact on the law and on the student-litigants\u27 lives. On the law, none of the student speech cases reshaped the legal landscape to the extent commonly depicted. Tinker never had the impact on actual schools that it had on paper: the infeasibility of most speech litigation left censorship widespread and lawsuits rare. And schools\u27 post-Tinker wins never really gutted Tinker, as the unexpected continued vitality of Tinker in the lower courts shows. On the facts, each Court decision had an unexpectedly limited impact on the student litigants themselves, as this Article documents with both contemporary media accounts and new interviews with the various students and their attorneys. Somewhat surprisingly, whether the students won or lost at the Court bore little relationship to whether they felt victorious or defeated. Some who lost at the Court, or never reached a final verdict, express a striking sense of vindication from their cases. Another losing plaintiff found vindication in further legal battles and further speech shenanigans. Only one losing plaintiff actually expressed a complete sense of defeat and largely left behind any ambitions of issue advocacy. With their cases affecting them unpredictably, the six plaintiffs in the four school speech cases are the most vivid illustrations of the limits of Supreme Court decisions