Rights and Retrenchment in the Trump Era

Our aim in this Article is to leverage the archival research, data, and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, to illuminate the prospects for retrenchment in the current political landscape. In the book, we documented how an outpouring of rights-creating legislation from Democratic Congresses in the 1960s and 1970s, much of which contained provisions designed to stimulate private enforcement, prompted the conservative legal movement within the Republican Party to devise a response. Recognizing the political infeasibility of retrenching substantive rights, the movement’s strategy was to weaken the infrastructure for enforcing them. Although largely a failure in the elected branches and only modestly successful in the domain of court rulemaking, the project flourished in the federal courts. In both the book and this Article, we focus exclusively on law that bears on opportunities and incentives for private enforcement of federal rights. Our decision to limit the project in that way was based on considerations that are both practical and theoretical. It was fortified by evidence from our archival research that the counterrevolution started in the first Reagan administration as an ideological campaign against private litigation as a tool of federal policymaking and by our empirical data showing that the effort to retrench private enforcement of federal law preceded tort reform on both the administration’s and the legislative agenda during the Reagan years

The Influence of Women and Racial Minorities Under Panel Decision Making on the U.S. Court of Appeals

This paper assesses the impact of gender and race on judicial decisions on the federal Court of Appeals, paying particular attention to the institutional nuances of decision-making on three-judge appellate panels within circuits. Its central question is whether and how racial minority and women judges influence legal policy on issues thought to be of particular concern to women and minorities. Proper analysis of this question requires investigating whether women and minority judges influence the decisions of other panel members. The authors find that the norm of unanimity on panels grants women influence over outcomes even when they are outnumbered on a panel

The Subterranean Counterrevolution: The Supreme Court, the Media, and Litigation Retrenchment

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of judicial decisions, despite the counterrevolution’s struggles in landscapes of democratic politics. This perspective also highlights normative concerns that arise when changes bearing on the fate of rights enforcement are not the result of public deliberation and democratic politics — indeed, when they may not be noticed by the public at all. In this article, we explore further the theoretical underpinnings of our intuitions concerning public awareness of the relevant judicial decisions, and, for the first time, seek to determine whether they have empirical support. To that end, we explore relationships among the Supreme Court’s turn against rights enforcement, public understanding, and public preferences by analyzing an original dataset that comprises news coverage of (1) Supreme Court opinions ruling on substantive rights, and (2) opinions adjudicating opportunities and incentives to enforce those rights, such as standing, damages, fees, and the class action. Drawing on both theory and this empirical evidence, we argue that the Court’s decisions on rights enforcement, because of their lower public visibility, are less constrained by public opinion and therefore less tethered to democratic governance. We suggest, further, that the relatively subterranean quality of law affecting private enforcement of rights may help to explain why it has become even more ideologically divisive on the Court than substantive rights themselves

Politics, Identity, and Pleading Decisions on the U.S. Courts of Appeals

We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal. We first describe the role that pleading was intended to play in the original (1938) Federal Rules of Civil Procedure, review the Court’s decisions in Twombly and Iqbal, and offer a brief discussion of common themes in normative scholarship that is critical of Twombly and Iqbal, including the claim that they threaten to amplify ideological and subjective decision-making, particularly in civil rights cases. We then empirically examine the extent to which the party (of appointing president), gender, and racial composition of panels are associated with their disposition of 12(b)(6) appeals across all policy areas pooled, also separately analyzing discrimination claims, all “other civil rights” claims, and non-civil rights claims. We separately analyze a random sample of (predominantly non-precedential) cases and a set of only precedential cases. In our random sample of cases, we find that panels with women and non-white judges are substantially more likely to rule in favor of a plaintiff reaching discovery in other civil rights claims, an important and cross-cutting civil rights category amounting to a quarter of 12(b)(6) appeals in our data, but that race and gender are insignificant outside that substantive area. Party is insignificant across the board in the random sample. The results are different when the panel is making law. In precedential cases, we find that Democratic panels were significantly more likely to decide in favor of plaintiffs in non-civil rights claims. We also find that panels with one woman were more likely to decide precedential other civil rights claims in favor of plaintiffs, and that panels with two women (but not one) were more likely to do so in non-civil rights claims. Our results for gender contradict conventional wisdom in the literature that women judges’ preferences differ from men’s only in cases implicating discrimination. They add to evidence suggesting the possibility that procedural law affecting access to justice may itself be a policy domain in which women have different (more pro-access) preferences that extend beyond discrimination claims. Gender, alone among the judge characteristics we study, is significant in both random sample and precedential-only models, and in both civil rights and non-civil rights models, revealing a distinctive propensity among women on the Courts of Appeal to support plaintiffs’ access to discovery. Finally, significant variation in our results across the random sample and precedential cases highlights the risk of error in drawing general inferences from either significant or null results in precedential cases—general inferences that are widespread in the literature on the Courts of Appeals

Federal Court Rulemaking and Litigation Reform: An Institutional Approach

The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, the committee shifted toward being dominated by federal judges, that those appointments shifted in favor of judges appointed by Republican Presidents, that practitioner appointments shifted toward corporate and defense practitioners, and that the committee’s proposals became increasingly anti-plaintiff (and hence anti-private enforcement). Since the bold rulemaking reforms of 1993 were very nearly blocked by Congress, it has seemed that the important lessons for some rulemakers had to do with the epistemic deficits or overreaching of proposed reforms, while for others the lessons focused attention on the locus of partisan control in Congress. The former group may have learned from the Court’s strategy of incrementalism – death by a thousand cuts -- in litigation reform involving the interpretation of federal statutes. The latter group may regret, if not the loss of leadership in procedural lawmaking, then the loss of leadership in retrenchment, which some rulemaking critics have seen signaled in the Court’s recent use of decisions effectively to amend the Federal Rules

Class Certification in the U.S. Courts of Appeals: A Longitudinal Study

There is a vast literature on the modern class action, but little of it is informed by systematic empirical data. Mindful both that there have been few Supreme Court class certification decisions and that they may not provide an accurate picture of class action jurisprudence, let alone class action activity, over time, we created a comprehensive data set of class certification decisions in the United States Courts of Appeals consisting of all precedential panel decisions addressing whether a class should be certified from 1966 through 2017, and of nonprecedential panel decisions from 2002 through 2017. In Section I, through a literature review, we identify both prior empirical scholarship and commonly asserted claims concerning federal class action activity and jurisprudence over time. In Section II we present our data and explore the light they shed on questions that have been raised, and assertions that have been made, about class action certification decisions in the U.S. Courts of Appeals. Our findings show that, contrary to conventional expectations, in the period since Wal-Mart and Comcast, plaintiffs have been winning certification appeals more frequently than they were formerly, and Rule 23(f) contributed to this recent success. This growth in pro-certification outcomes occurred on both Democratic- and Republican-Majority panels. We find that final-judgment appeals, at least in precedential decisions, played a larger role in this landscape prior to Rule 23(f) than has often been asserted or assumed, and that in all decisions since 2002 they continue to play a major role. We also find that final-judgment appeals involving (b)(3) issues are common among appeals, which casts doubt on the conventional wisdom concerning the class certification decision as the “death knell” for plaintiffs or defendants in such cases. We find significant variation over time in appeal outcomes under Rule 23(f), with defendants far more successful than plaintiffs prior to Wal-Mart and Comcast, and relative parity after. This variation suggests the hazards of generalizing about operation of that rule from experience in any particular period. Our models also show that, for reasons about which we can only speculate, interlocutory appeals since around 2000 have elicited more ideological voting behavior by judges, leading to greater polarization

Politics, Identity, and Class Certification on the U.S. Courts of Appeals

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of two women (but not one), is associated with procertification outcomes. Our results show that, contrary to conventional wisdom in scholarship on diversity on the Courts of Appeals, the impact of diversity extends beyond conceptions of “women’s issues” or “minority issues.” The consequences of gender and racial diversity on the bench, through application and elaboration of certification law, radiate widely across the legal landscape, influencing implementation in such areas as consumer, securities, labor and employment, antitrust, insurance, product liability, environmental, and many other areas of law. In considering possible explanations for our findings on the procertification preferences of women and African Americans, we note that class action doctrine, as transsubstantive procedural law, traverses many policy areas. As strategic actors, it would be rational for judges to take into consideration how class-certification doctrine in a case that does not implicate issues on which they have distinctive preferences might affect certification in cases that do. Alternatively, or in addition, our results may be the first evidence that transsubstantive procedural law affecting access to justice is itself a policy domain in which women and African Americans have distinctive preferences. In either case, the results highlight the importance of exploring the effects of diversity on transsubstantive procedural law more generally. Our findings on gender panel effects in particular are novel in the literature on panel effects and the literature on gender and judging. Past work focusing on substantive antidiscrimination law found that one woman can influence the votes of men in the majority (mirroring what we find with respect to African Americans in class-certification decisions). These results allowed for optimism that the panel structure—which threatens to dilute the influence of underrepresented groups on the bench because they are infrequently in the panel majority—actually facilitates minority influence, whether through deliberation, cue taking, bargaining, or some other mechanism. Our gender results are quite different and normatively troubling. We observe that women have substantially more procertification preferences based on outcomes when they are in the majority. However, panels with one woman are not more likely to yield procertification outcomes. Panels with women in the majority occur at sharply lower rates than women’s percentage of judgeships, and thus certification doctrine underrepresents their preferences relative to their share of judgeships and overrepresents those of male judges

The Subterranean Counterrevolution: The Supreme Court, the Media, and Litigation Retrenchment

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of judicial decisions, despite the counterrevolution’s struggles in landscapes of democratic politics. This perspective also highlights normative concerns that arise when changes bearing on the fate of rights enforcement are not the result of public deliberation and democratic politics — indeed, when they may not be noticed by the public at all. In this article, we explore further the theoretical underpinnings of our intuitions concerning public awareness of the relevant judicial decisions, and, for the first time, seek to determine whether they have empirical support. To that end, we explore relationships among the Supreme Court’s turn against rights enforcement, public understanding, and public preferences by analyzing an original dataset that comprises news coverage of (1) Supreme Court opinions ruling on substantive rights, and (2) opinions adjudicating opportunities and incentives to enforce those rights, such as standing, damages, fees, and the class action. Drawing on both theory and this empirical evidence, we argue that the Court’s decisions on rights enforcement, because of their lower public visibility, are less constrained by public opinion and therefore less tethered to democratic governance. We suggest, further, that the relatively subterranean quality of law affecting private enforcement of rights may help to explain why it has become even more ideologically divisive on the Court than substantive rights themselves