Unlocking Doors: Reflections on Myrna Raeder\u27s Generativity and Generosity

Celebrating Myrna Raeder is an honor, as is joining this symposium, Locking Up Females, which is a fitting tribute to her work. My connection to Myrna comes through joining with her in efforts to respond to gender inequalities in the institutions around us. The problems we saw were not only in jails and prisons, which famously occupied Myrna\u27s time, but also in law schools and courts. Thus, in Myrna\u27s memory and in her tradition, I reflect on some of the issues that we encountered and the collective efforts in which we participated to mitigate some of the hardships

Naturally Without Gender: Women, Jurisdiction, and the Federal Courts

For many years, women who work (or who have tried to work) with law and in courts have understood that their gender was relevant to that work. However, until recently, those who run the courts to which women have sought entry have not been interested in the effects of women on courts and of courts on women. Below, Professor Resnik explores the relationship between women and the federal courts and the role that gender plays in the allocation of work between state and federal courts

Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation

The topic of this symposium is mass torts. My focus is on fees, costs, and subsidies. Given that my co-participants are judges, lawyers, and academics steeped in current practices (indeed creating them), I have no need to rehearse the arguments about the different methods used for paying lawyers or the insufficiency of current law. The law of attorneys\u27 fees is the subject of dozens of law review articles, and both academic and popular literature evidence a shared sense that something needs to be done. But I do need to explain why figuring out what to do is difficult. As I begin to discuss a) judicial intervention into the market for legal services; b) judicial allocation of lawyers\u27 fees that turn judges into purchasers of legal services; c) the challenges of determining whether and how to subsidize which litigants; and d) the effects of such decision making on the judicial role, I am conscious that I am engaging in a breach of etiquette. I am talking about judges directing the flow of money in civil litigation. But the discourse of civil justice has tried to avoid that topic; the phrase—judges as market-makers—is not regularly deployed

Litigating and Settling Class Actions: The Prerequisites of Entry and Exit

John Oakley has entitled the panel discussion, and now this symposium, Summing Up Procedural Justice: Exploring the Tension Between Collective Processes and Individual Rights in the Context of Settlement and Litigating Classes. Under this rubric we could be discussing an array of topics, but given that this conversation takes place in the winter of 1997 among a group of proceduralists, our attention has been drawn by proposed revisions to the 1966 class action rule and by pending and vivid case law examples (including Georgine, Ahearn, and GM Trucks) of class action practice, doctrine, and aspirations. The issues come packaged under headings like futures classes and settlement classes and the controversy has become heated—with accusations of collusion, attorney self-interest, and judicial acquiescence in or support of unfair settlements. In this heat, issues become conflated that need to be disentangled; examples stemming from cases claimed to be typical may themselves be only a part of a diverse and variable lot. Neither rulemaking nor commentary on procedure should be driven by that which grabs attention unless we can be confident that the vivid example is paradigmatic of the set. Thus, while I share concerns about the equity and quality of certain class action (and other) settlements and about the processes that generate them, I am also concerned about a reaction to these instances that disables class action litigation rather than attempting to constrain particular distressing manifestations

Reorienting the Process Due: Using Jurisdiction to Forge Post- Settlement Relationships Among Litigants, Courts, and the Public in Class and Other Aggregate Litigation

The 1966 revision of Rule 23 has shaped our political and legal imagination. Building on the 1950 ruling of Mullane v. Central Hanover Bank and Trust Company, which approved the possibility of binding absentees nationwide through representative litigation, Rule 23 expanded the groups eligible for class treatment. Aggregation responded to felt social needs—for banks to pool trusts, school students to enforce school desegregation injunctions, and consumers to pursue monetary claims too small to bring individually

Aggregation Settlement and Dismay

Richard Marcus and Jack Coffee argue that federal judges are relying on the class action rule (Federal Rule of Civil Procedure 23) to revamp both substance and procedure. Both papers represent attempts to link the efforts of lawyers and judges across an array of cases and to provide a coherent picture of the emerging new rules and doctrine, both substantive and procedural. Coffee and Marcus strive to place a series of federal mass tort class action litigations in a broader context, in an effort to understand a phenomenon rather than a particular case. As Marcus explains, while Congress has not (as of this writing) enacted any of the various legislative proposals for tort reform, federal judges have functionally undertaken tort reform through their work under Rule 23. That is, judges have approved (and, to varying extents, designed) class action settlements that eliminate punitive damages; created priorities of rights by staggering the processing of claims and categorizing the values of claims; recognized to some extent a tort of fear of future injury; altered standards of proof of causation and injury; and capped payments. Professor Coffee would add a few other items to this list of federal judicial innovations—that judges have imposed new requirements on eligibility for compensation, excluded lesser injuries from compensation, and sanctioned the queuing of claimants so that only a certain number of claims are paid in a given year

Building the Federal Judiciary (Literally and Legally): the Monuments of Chief Justices Taft, Warren and Rehnquist

The “federal courts” took on their now familiar contours over the course of the twentieth century. Three chief justices—William Howard Taft, Earl Warren, and William Rehnquist—played pivotal roles in shaping the institutional, jurisprudential, and physical premises. Taft is well known for promoting a building to house the U.S. Supreme Court and for launching the administrative infrastructure that came to govern the federal courts. Earl Warren’s name has become the shorthand for a jurisprudential shift from state toward federal authority; the Warren Court offered an expansive understanding of the role federal courts could play in enabling access for a host of new claimants seeking an array of rights. William Rehnquist is identified with limiting both rights and access in favor of state court and of executive authority. He has been less well appreciated for his role in changing the institutional capacity of the federal courts. During the Rehnquist era, the budget of the federal courts doubled as staff and facilities expanded, in part by way of the largest federal building program since the New Deal. Over the course of the twentieth century and under the leadership of all three chief justices, the judiciary gained an increasingly robust corporate persona. Judges shifted their sights from “court quarters” to custom-designed courthouses and, during Chief Justice Rehnquist’s tenure, obtained billions of dollars to fund new construction. The Administrative Office of the United States Courts came into close contact with two other federal bureaucracies—the General Services Administration and the National Endowment for the Humanities—and developed a program of construction that made massive federal courthouses signature buildings of the federal government. Changes of the last decades, however, interrupt the narrative of federal judicial growth spiraling ever upward. Flattening rates of filings, vanishing trials, and limitations imposed both by Congress and the Supreme Court on federal court authority make fragile both the monumental aspirations for federal adjudication and the continuing investment of resources in federal judges and in their courts. The cultural capital of the federal courts overshadows that of state and administrative adjudication, but, as federal jurisprudence continues to constrict access, the state courts—with jurists pressing for “Civil Gideon”—are advancing the very agendas that the Warren Court once made “federal” imperatives. Addison C. Harris Lectur