Discovery Hydraulics

Discovery reforms invariably have unexpected consequences. But the growth of electronically stored information has led to one constant — an ever-increasing pressure on the finite resources of both the judiciary and litigants. Courts, through their discovery rules, direct where that pressure will be channeled. But like any force in a closed system, it must be sent somewhere, ultimately requiring difficult tradeoffs amongst the three mainstay procedural justice norms of accuracy, efficiency, and participation. Discovery Hydraulics explores this phenomenon, cataloging how recently proposed or implemented document discovery reforms affect these norms. In creating the first purposive taxonomy of recent document discovery reforms, Discovery Hydraulics makes three main contributions to the literature by: (1) articulating an understanding of how the treatment of costs and information volume correspond to the accuracy, efficiency, and participation norms; (2) systematically collecting and organizing the plethora of suggestions that have been offered to address the burdens associated with the growth of electronically stored information, and; (3) laying out the normative and instrumental benefits of discovery reforms that focus on reducing costs without losing information. And last, but not least, a significant practical benefit is that this analytical approach should provide court with the tools needed to assess, ex ante, the potential normative effects of changes to document discovery processes

Ad Tech & the Future of Legal Ethics

Privacy scholars have extensively studied online behavioral advertising, which uses Big Data to target individuals based on their characteristics and behaviors. This literature identifies several new risks presented by online behavioral advertising and theorizes about how consumer protection law should respond. A new wave of this scholarship contemplates applying fiduciary duties to information-collecting entities like Facebook and Google.Meanwhile, lawyers—quintessential fiduciaries—already use online behavioral advertising to find clients. For example, a medical malpractice firm directs its advertising to Facebook users who are near nursing homes with bad reviews. And, in 2020, New York became the first jurisdiction to approve lawyers’ use of retargeting, one form of online behavioral advertising. But the professional responsibility scholarship has not yet considered these developments.The Article describes the rise of online behavioral advertising and lawyers’ nascent use. It draws on modern privacy scholarship to explain how this advertising method can lead to privacy invasions and manipulation. It then explores the specific case of lawyer advertising. And it critiques the existing regulations, which do not prohibit tactics involving privacy invasions or manipulation even though they undermine client autonomy—a key concern for the law of lawyer marketing.In addition to this descriptive and doctrinal work, the Article makes two other contributions. First, the examination of online behavioral advertising helps explain why the legal profession struggles to integrate new technological innovations more generally. AI tools and similar products are driven by informational capitalism’s focus on exploiting knowledge advantages, its speed, and its scale. But these features all are in tension with traditional aspects of the fiduciary relationship between lawyers and their clients. Second, as privacy scholars begin to think about how the duty of loyalty might provide a principle to limit abuses of Big Data in other contexts, the Article proposes that lawyers—who already have this duty—make good subjects for a case study

Fee Retrenchment in Immigration Habeas

For noncitizens facing removal, habeas corpus provides one of very few avenues for Article III review. For decades, habeas proceedings have been interpreted as falling under the ambit of the Equal Access to Justice Act (EAJA), which provides for the award of attorneys’ fees to prevailing parties in suits against the federal government. But this understanding is being challenged, threatening the judicial backstop to executive and legislative overreach in immigration. Reducing the ability of lawyers to recover their fees in these circumstances will reduce the number and quality of habeas challenges by individuals being detained while they await removal—a particularly salient worry given the aggressive enforcement and misconduct by U.S. Immigration and Customs Enforcement over the past few years. This Article demonstrates that reading out habeas proceedings from the EAJA is best understood as an example of the federal courts’ jurisprudential shift against the private enforcement of civil rights—that is, the rights retrenchment movement. This case study also shows how nonacquiescence permits agencies to selectively tee up issues for retrenchment and magnify the structural power differences between them and the individuals they face in litigation. This Article then applies a procedural justice lens to normatively assess whether the EAJA should cover immigration habeas. Using the Mathews v. Eldridge framework for this inquiry, this Article identifies the strong private interests at stake, the value of the process, and the government’s interest, mapping these factors to the accuracy, efficiency, and participation norms

Fee Retrenchment in Immigration Habeas

For noncitizens facing removal, habeas corpus provides one of very few avenues for Article III review. For decades, habeas proceedings have been interpreted as falling under the ambit of the Equal Access to Justice Act (EAJA), which provides for the award of attorneys’ fees to prevailing parties in suits against the federal government. But this understanding is being challenged, threatening the judicial backstop to executive and legislative overreach in immigration. Reducing the ability of lawyers to recover their fees in these circumstances will reduce the number and quality of habeas challenges by individuals being detained while they await removal—a particularly salient worry given the aggressive enforcement and misconduct by U.S. Immigration and Customs Enforcement over the past few years. This Article demonstrates that reading out habeas proceedings from the EAJA is best understood as an example of the federal courts’ jurisprudential shift against the private enforcement of civil rights—that is, the rights retrenchment movement. This case study also shows how nonacquiescence permits agencies to selectively tee up issues for retrenchment and magnify the structural power differences between them and the individuals they face in litigation. This Article then applies a procedural justice lens to normatively assess whether the EAJA should cover immigration habeas. Using the Mathews v. Eldridge framework for this inquiry, this Article identifies the strong private interests at stake, the value of the process, and the government’s interest, mapping these factors to the accuracy, efficiency, and participation norms

Ethical Guardrails to Unbounded Procedure

Civil lawsuits in federal courts—especially class actions and multidistrict litigation (MDL)—can be messy and complicated, calling for pragmatic interventions that lie beyond what is explicitly addressed by the existing rules. And flexibility is part of the genius of the Federal Rules of Civil Procedure. On the other hand, unbounded discretion and innovation in procedure can lead to illegitimate exercises of power, bias, democratic nonaccountability, and other serious harms. But the choice is not between providing individual courts with nearly limitless authority to experiment with procedure or having a set of rigid rules. Instead, there is a third path: district judges should look to ethics rules to define the boundaries of their discretion, especially when innovating with civil procedure. The case for treating professional-conduct rules as guardrails to unbounded procedure begins with a recognition that federal district courts have almost universally adopted ethics codes modeled after the American Bar Association Model Rules of Professional Conduct through their local rulemaking. This comes with an important doctrinal payoff: judges cannot ignore these ethics rules when applicable. Moreover, even if the district courts had not already committed to them, professional-conduct rules have many normative advantages over unbounded procedure and, thus, would serve as useful guides. The supervision of attorneys’ fees in multidistrict litigation provides a helpful case study. MDLs have become the predominant battleground for important procedural disputes and are a paradigmatic example of unbounded procedure. Within MDLs, common-benefit fees are extremely controversial and legally tenuous. Several professional-conduct rules, however, directly address the substantive issues and offer established frameworks for regulating lawyers’ compensation to ensure its reasonableness and fairness for everybody involved. Beyond this specific intervention, the key contributions of this Article are (1) putting civil procedure and professional responsibility into greater dialogue and (2) illustrating how professional-conduct rules are well positioned to fill many important gaps or otherwise guide judges’ experiments

Contracting for Confidential Discovery

One way that courts have adapted to the age of the internet is to provide nearly instant online access to their dockets. But many important filings remain shielded from public view as courts regularly issue stipulated protective orders at the request of the parties. And, while the costs and benefits of confidential discovery have been extensively discussed in the academic literature, several important contextual developments — including the continuing growth of electronically stored information — prompt a reexamination. Additionally, easily searchable federal dockets now provide a window into what is happening in actual practice.Taking up this task, Contracting for Confidential Discovery examines how federal trial courts dealt with 100 proposed stipulated protective orders in January 2018. A key finding is that courts are regularly entering orders overly favoring secrecy in a manner that is inconsistent with the governing jurisprudence and consensus theory. The Article proposes several doctrinal and policy interventions to rectify the most problematic common mistakes: (1) an overreliance on boilerplate language and (2) the conflation of the relatively low standard for keeping unfiled discovery confidential with the much higher bar for filing materials under seal

Technological Opacity & Procedural Injustice

From Google’s auto-correction of spelling errors to Netflix’s movie suggestions, machine-learning systems are a part of our everyday life. Both private and state actors increasingly employ such systems to make decisions that implicate individuals’ substantive rights, such as with credit scoring, government-benefit eligibility decisions, national security screening, and criminal sentencing. In turn, the rising use of machine-learning systems has led to questioning about whether they are sufficiently accurate, fair, and transparent. This Article builds on that work, focusing on how opaque technologies can subtly erode the due process norm of participation. To illuminate this issue, this Article examines the use of predictive coding—a form of technology-assisted review in which supervised machine-learning software is taught to predict the relevance of collected documents for discovery productions. The use of predictive coding in civil discovery highlights the new challenge to the participation norm because the processes generally do not provide any explanations for the outputs, much less non-technological accounts that are tied to the underlying substantive legal issues. Thus, even if predictive coding results in reasonably complete, accurate, and cost-efficient productions, the “black-box” nature of the process may harm the legitimacy that comes from litigants understanding and being able to more fully participate in judicial processes. This harm, however, has not been addressed by the developing jurisprudence, probably because most of the early cases involved high-stakes litigation between sophisticated parties who could afford computer experts. But the participation issue—and related equality concerns—will become increasing problematic as the technology’s use expands beyond this privileged posture. In response to these issues, this Article proposes a reinvigorated Mathews framework that explicitly weighs predictive coding’s impact on the participation norm to better futureproof the doctrine

Neither Panacea, Placebo, Nor Poison: Examining the Rise of Anti-Unemployment Discrimination Laws

Since 2009, the unemployment rate in the United States has remained above eight percent, which means that more than twelve million individuals have been looking for work at any given time. With so many affected individuals, unemployment has become an issue of public concern, particularly as stories describing employers refusing to consider currently unemployed candidates for job opportunities have proliferated. In response to these trends, about twenty states and the federal government have passed, or are considering, legislation designed to prohibit employers from discriminating against individuals based on their employment status. The goal of this Article is to survey the legislative activity, identify the factors driving it, and analyze its potential ramifications. I contend that it is unreasonable to project that this legislation will significantly reduce unemployment because there is only anecdotal data regarding the prevalence of discrimination against unemployed candidates in hiring and, regardless of the frequency of such a practice, none of the proposed or enacted legislation directly promotes job creation. However, I argue that the anti-unemployment discrimination legislation is a positive example of interest convergence in that it benefits the economy by reducing arbitrary discrimination in hiring and long-term unemployment. Furthermore, such legislation expresses a set of positive societal values and protects members of constitutionally-protected groups who are likely disproportionately impacted by current-employment requirements. I then discuss why the concerns advanced by the business community are overstated given the generally limited scope of the legislation, the lack of a private right of action, and the legally-approved uses of employment status as a proxy for characteristics about which a business might reasonably care. In sum, when taking an objective look, the anti-unemployment discrimination legislation is neither panacea, placebo, nor poison

Fee Retrenchment in Immigration Habeas

For noncitizens facing removal, habeas corpus provides one of very few avenues for Article III review. For decades, habeas proceedings have been interpreted as falling under the ambit of the Equal Access to Justice Act (EAJA), which provides for the award of attorneys’ fees to prevailing parties in suits against the federal government. But this understanding is being challenged, threatening the judicial backstop to executive and legislative overreach in immigration. Reducing the ability of lawyers to recover their fees in these circumstances will reduce the number and quality of habeas challenges by individuals being detained while they await removal—a particularly salient worry given the aggressive enforcement and misconduct by U.S. Immigration and Customs Enforcement over the past few years. This Article demonstrates that reading out habeas proceedings from the EAJA is best understood as an example of the federal courts’ jurisprudential shift against the private enforcement of civil rights—that is, the rights retrenchment movement. This case study also shows how nonacquiescence permits agencies to selectively tee up issues for retrenchment and magnify the structural power differences between them and the individuals they face in litigation. This Article then applies a procedural justice lens to normatively assess whether the EAJA should cover immigration habeas. Using the Mathews v. Eldridge framework for this inquiry, this Article identifies the strong private interests at stake, the value of the process, and the government’s interest, mapping these factors to the accuracy, efficiency, and participation norms