Contracting with Tortfeasors: Mandatory Arbitration Clauses and Personal Injury Claims

This article examines some of the cases in which courts have enforced arbitration clauses in personal injury litigation and considers why courts have reached the outcomes they have. It evaluates the ways that arbitration can disturb the traditional values of procedural justice, contractual fairness and the enforcement of tort-based duties. It suggests changes in the law regarding mandatory arbitration of personal injury claims and explores the extent to which change is possible

Litigating the Zero-Sum Game: The Effect of Institutional Reform Litigation on Absent Parties

This article considers the impact that the use and misuse of equitable interest balancing has had on institutional reform litigation. It begins by considering the types of cases in which interest balancing was originally used in equity, and then surveys the use of interest balancing in school desegregation and employment discrimination cases. The article argues that the Supreme Court\u27s interest balancing is flawed in systemic ways that result in overvaluing non-party interests

Cognitive Bias, the \u27Band of Experts,\u27 and the Anti-Litigation Narrative

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable cognitive biases take this blend of politics, elite and often defense-side experience, and corporate manipulation of public opinion and blind the Rules Committee members to the possibilities of solutions that expand rather than contract information sharing. This article considers these phenomena, and recommends more heterogeneous committee membership, the use of deliberative processes that are more likely to overcome flawed heuristics, and greater reliance on non-opinion-poll data in the rulemaking process

Judicial Hellholes, Lawsuit Climates, and Bad Social Science: Lessons from West Virginia

The American Tort Reform Association (ATRA) was founded in 1986 by the American Medical Association and American Council of Engineering Companies, and now has hundreds of corporate members. Every year, ATRA releases a list of Judicial Hellholes: court systems alleged to be unfair to defendants. The name is definitely catchy: the thought of a judicial hellhole invokes images of Kafka, Satan and the Queen of Hearts. No wonder ATRA\u27s hellhole campaign has embedded itself in media vocabulary. And no wonder state courts and state legislatures bend over backwards to get out from under the hellhole label. Similarly, the U.S. Chamber of Commerce has a spin-off organization,the Institute for Legal Reform, that issues an annual report on each state\u27s lawsuit climate, ranking states from 1 to 50 on their friendliness to business, based on a survey of general counsel of very large businesses and their outside lawyers. Since no state wants to be found near the bottom of the list, the ILR report also creates pressure for legal change. This essay uses West Virginia as a test case to examine the methodology of the Hellhole and Lawsuit Climate reports. It provides context by briefly tracing the earlier campaigns of tort reform advocates, highlighting some of the ways in which they have played fast and loose with numbers and stories. The essay describes the national Hellhole and Lawsuit Climate campaigns, and then focuses on ATRA\u27s treatment of West Virginia in order to demonstrate the techniques of the hellhole reports. For example, the reports represent opinions as facts, use quotations and anecdotes in a misleading and manipulative way, omit bad facts, and misuse statistics. Reasonable scholars on all sides of the substantive and procedural issues involved in tort litigation have debated and will continue to debate difficult issues such as deterrence, insurance, proof of causation, procedural efficiency, the role of the courts, the limits of science, and best choice of decision maker. The hellhole reports add nothing to these thoughtful and nuanced debates; indeed, they debase that debate by misleading and misinforming citizens and lawmakers

Designer Trials

This article considers the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing, without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party with the greatest pre-dispute bargaining power. Such a clause could appear in a contract with an employer, a bank, a cell phone company, an internet service provider, a credit card company, a stock broker, a landlord, a doctor, a hospital, a school, a gym, a travel company or even an exterminator. With this clause, a potential institutional litigant has obtained many of the features that normally motivate businesses to require arbitration, but without the expense of arbitration fees, and without the necessity to litigate the validity of the arbitration clause or to sue to enforce an arbitrator\u27s decision. The contracting party who is a repeat player can tailor the litigation contract to suit its probable position in litigation. If the institutional party predicts that it would likely appear in court as a defendant, it can make choices that decrease the out-of-pocket cost of litigation, eliminate the threat of class actions, avoid a jury trial, and limit the bad publicity and proliferation of litigation made possible by public disputes. In addition, the contracting future defendant can include provisions likely to make it harder for the party with the burden of proof to prevail, such as limiting discovery and the presentation of evidence. If the institutional party predicts that it would likely appear in court as a plaintiff but is likely to be in a position in which it has pre-suit access to information, it will still want to limit discovery, speed the dispute resolution process, avoid publicity, and eliminate the jury. In either case, it can choose a favorable forum and the most attractive available law. Would courts enforce such a contract? If they follow precedent established in arbitration and jury waiver cases, they might easily do so. In the context of arbitration clauses, courts have enthusiastically endorsed freedom of contract, particularly when those contracts result in a perceived efficiency gain for the courts themselves. They have dismissed the differences between court procedures and arbitration procedures as insignificant unless the chosen arbitration procedures effectively deny a remedy or are unconscionable under state contract law. Yet restricting procedural choice within the public court system has implications beyond those of opting out of the system entirely. Ultimately, contractual modifications to court processes raise the issue of the extent and importance of the public purposes of the judicial system

Law, Facts, and Power

The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways. This essay is about only one of them: the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law. This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction. The chinks in the law-fact divide are evident in Iqbal itself - both in the already notorious pleading section of the opinion, and in the much-less-noted section on whether the Court even had jurisdiction over the case, which also turned on the distinction between law and fact. Iqbal further demonstrates the power issues that lurk below the “law” and “fact” labels. The Court’s misuse of the law/fact divide allocates authority to judges rather than juries, and gives appellate judges the power to review those decisions with no deference to the trial court. In addition, by using a case to change the long-established interpretation of a procedure rule, Iqbal allowed the Supreme Court itself to avoid the transparent and participatory process for amending the Federal Rules of Civil Procedure, and altered the balance of power between the Court and Congress

Just Say No Fishing : The Lure of Metaphor

The phrase fishing expedition is widely used in popular culture and in the law. In the legal setting, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence the result in a case. At best, it is uninformative. Worse, the fishing metaphor may itself shape the court\u27s attitude toward the issue or claim in a lawsuit. This Article begins by tracing the development of the fishing expedition metaphor in civil cases, demonstrating how its changing uses reflect and contribute to the legal controversies of each era. The policies that originally supported limited use of the metaphor have long been rejected. The drafters of the Federal Rules of Civil Procedure tried to overcome the metaphor. Nevertheless, in contemporary cases the prohibition of fishing is omnipresent. In an overwhelming proportion of modern cases, it is plaintiffs who are said to be fishing, and the metaphor\u27s concentration in certain types of cases reflects and reinforces an anti-plaintiff bias. The Article concludes by suggesting that we reject the fishing metaphor It has been trite for more than two hundred years. More important, the fishing metaphor may camouflage reasoning that violates the letter or spirit of the Federal Rules of Civil Procedure

Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege

This article surveys the traditional justifications for giving corporations the benefit of attorney-client privilege. It rejects both moral and utilitarian explanations and argues that, far from being beneficial or benign, the privilege actually does great harm to the truth-seeking function of litigation and imposes tremendous transaction costs on the litigants and on the judicial system as a whole