Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-removable State Actions in Multi-district Litigation

Given a string of decisions restricting the use and availability of the class action device, the world of mass litigation may well be moving into a post-class action era. In this era, newer devices of aggregation—perhaps principally among them multi-district litigation (“MDL”)—increasingly will be called upon to meet the age-old mass litigation goal of achieving global peace of numerous claims arising out of a related, widespread harm. Indeed, coordination of pretrial proceedings in the MDL frequently facilitates the achievement of this peace, given the reality that cases, once consolidated in the MDL, often settle en masse. However, one clear obstacle to the achievement of aggregate peace in the MDL, one that also plagues the achievement of that peace in the class action world, is our federal system of substantive and procedural law. In the MDL context, the problem arises because litigation involving state-law claims and non-diverse parties, which are not removable from state court, cannot be transferred to the MDL court. Despite their prevalence, little scholarly attention has been devoted to non-removable state-court actions in MDL. The few responses to this issue have largely focused upon the efficiencies that could be gained through increased, and perhaps total, consolidation of all related cases or, short of consolidation, through heightened coordination of pre-trial proceedings between state and federal judges. This article questions whether these responses have led reform proposals in the wrong direction, and instead takes a different view. Rather than argue for increased consolidation, I offer for further consideration the possible ways in which the happenstantial existence of parallel tracks of related state and federal cases actually hold promise, if properly harnessed, as mechanisms for achieving the goals of aggregate litigation and for disciplining the contours of global settlements of mass disputes. In particular, I explore the possibility that the existence of parallel state and federal cases—frequently viewed as an obstacle to global resolution of claims unable to be consolidated in a single forum—may well fortuitously provide an opportunity to achieve the sorts of mass litigation resolution envisioned but unsuccessfully attempted in the class action context. In so doing, this article adds new thoughts and theories to the specific debate regarding parallel state and federal claims in MDL, as well as to the larger debate about mass litigation governance in a post-class action world

“Encroachments and Oppressions”: The Corporatization of Procedure and the Decline of Rule of Law

This Article begins by providing a brief account of the corporatization of procedure through judicial decision-making and noting some of the detrimental effects it has had on the preservation of rule of law and access to justice. Part II goes on to explore how the judiciary does not retain full control over procedure and how corporate entities have little care for whether a procedural reform simply cuts back at litigation or goes further and cuts back at judicial power and the judicial role itself. To illustrate these points, Part II examines the most recent attempt at procedural reform by corporate entities-the proposed Fairness in Class Action Litigation Act (FICALA). The most dramatic procedural changes in FICALA involve multidistrict litigation (MDL). These changes would cut back significantly at judicial power and discretion as well as the role of the judiciary in preserving the rule of law. Part III explores one of the implications of having two political branches and one nonpolitical branch of government-namely, that moneyed corporate interests effectively get two bites at the procedural apple. This state of affairs raises a number of fundamental questions, including. ones regarding the appropriate nature and scope of legislative and judicial power over procedure. Part III grapples with those questions

The Federal Rules of Civil Settlement

The Federal Rules of Civil Procedure were originally based upon a straightforward model of adjudication: Resolve the merits of cases at trial and use pretrial procedures to facilitate accurate trial outcomes. Though appealing in principle, this model has little relevance today. As is now well known, the endpoint around which the Federal Rules were structured — trial — virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article is the first to argue that the current litigation process needs a new regime of civil procedure for the world of settlement This Article begins by providing a systemic analysis of why the Federal Rules inadequately prevent settlement outcomes from being distorted relative to the underlying merits — as defined by reference to substantive law — of a given dispute. It then explains how the Federal Rules can actually amplify these distortions. Indeed, notwithstanding the well-worn adage that settlement occurs in the “shadow of the law,” scholars have shown that non-merits factors exert significant influence on settlement outcomes. However, these insights have not been considered together and combined with a systemic focus on the ways in which the influence of these factors on settlement outcomes is actually a product of the basic structural features of the Federal Rules. This Article takes these next steps to explain that the “shadow of the law” that is cast on settlements is fading. Further, this Article discusses a new phenomenon in the current litigation environment — namely, that litigants’ increased reliance on prior settlements as “precedent” for future settlement decisions may move settlement even further out of the “shadow of the law” and into the “shadow of settlement” itself. This Article then traces these problems to three foundational assumptions underlying the Federal Rules of Civil Procedure, all of which have become outmoded in a world of settlement. In rethinking these assumptions, it provides a new conceptual account that contextualizes previously isolated procedural reform proposals as challenges to these foundational assumptions. It also explains how these reform efforts ought to be refined and extended with a specific view toward systematically redesigning the basic model and operation of the Federal Rules for a world of settlement. Lastly, it sets forth new proposals that seek to reorient current rules expressly toward the goal of aligning settlement outcomes with the merits of underlying claims. What emerges is a new vision of procedure — one in which the application of pretrial procedural rules do not merely facilitate trial but are designed to provide litigants with guidance regarding the merits of claims and are used to align settlement outcomes more meaningfully with the dictates of the substantive law. In describing this vision, this Article lays the groundwork for the design of a new Federal Rules of Civil Settlement

The Supreme Court’s “Non-Transsubstantive” Class Action

This year marks the fiftieth anniversary of the adoption of Federal Rule of Civil Procedure Rule 23, and with it, the advent of the modern class action. As the fiftieth anniversary approached, many scholars, including myself, said that class actions were dead, dying, or headed for a zombie state. Many of the Supreme Court’s recent class action cases all but confirmed that view. In just the last six years, the Supreme Court ratcheted up the requirements for class certification under Rule 23 in Wal-Mart Stores v. Dukes and Comcast v. Behrend, increasing the cost and difficulty of obtaining certification. And, in a series of cases, the Court permitted the use of class action prohibitions in arbitration contracts, thus eliminating a swath of class actions and, often, the underlying claims themselves. The Court’s language in these cases also tracked stock arguments against the class action, leaving the distinct impression that the Roberts Court was on a mission to diminish or destroy the class action procedure. But a funny thing happened on the way to the funeral: just as the obituaries for the class action were being written, the Supreme Court issued a series of decisions that breathed new life into it. In Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II) and Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, the Court reaffirmed the fraud-on-the-market theory, a critical tool in securities class actions. In Tyson Foods v. Bouaphakeo, the Court vindicated the use of statistical proof to satisfy Rule 23 requirements, distancing itself from strong suggestions in prior cases that individualized proof requirements would doom class certification. And the language in these cases tracked stock arguments in favor of class actions. To paraphrase Mark Twain, the rumors of the class action’s death now seem greatly exaggerated. But the Court’s class action decisions raise a new and perhaps more vexing question. If the Court is not fully intent on destroying the class action, what drives its seemingly disparate decisions? Do they reflect an anti–class action agenda losing steam, as Professor Coffee has suggested? Was the unbridled anti–class action agenda an illusion to begin with? Or is there a deeper explanation for these decisions? Part I of this Article demonstrates that the Court’s “pro–class action” decisions cannot be easily reconciled with their “anti–class action” counterparts through traditional means—neither through straightforward applications of Rule 23, nor precedent, nor particular case facts. But Part II posits that the Court’s seemingly disparate class action cases can still be rationalized. To do so, however, one must look past the procedural veneer and consider the underlying substantive rules and remedial regimes at stake. Indeed, a key question presented in each case—notwithstanding what appears in the petitions for writs of certiorari—is whether the Court will embrace an interpretation of a substantive rule that has the effect of facilitating the availability of the class action. The Court’s ultimate answer reflects a composite judgment about the substantive rule at issue and its implications for the availability of the class action device. Accordingly, to the extent one insists that procedural rules are, or ought to be, transsubstantive—that, “in form and manner of application, [they do] not vary from one substantive context to the next”—the Court’s class action jurisprudence might actually be deemed “non-transsubstantive.” This Article’s thesis has numerous implications—for separation of powers, judicial lawmaking power, federalism, the role of precedent, notions of transsubstantive procedure, procedural theory, and the nature and legitimacy of the judicial role, among others. The limitations of the Article format permit consideration in Part III of just two: First, the implications for the nature and scope of the federal courts’ procedural and substantive lawmaking powers under the Rules Enabling Act [hereinafter Enabling Act]. And second, related implications for the nature and legitimacy of the judicial role in “procedural” opinions

All Balls and No Strikes: The Roberts Court’s Anti-Worker Activism

For decades, legislatures and courts have created and preserved rights and remedies for vulnerable groups—consumers, employees, victims of mass torts, investors, and the like. Both branches have extolled the virtues of these substantive rights and the private enforcement mechanisms required to effectuate them. However, despite statements like that of Justice Roberts and others that the judiciary is not a lawmaking body—indeed, that the judicial institution should take care to exercise restraint—the Roberts Court has engaged in sweeping reform that tends to extinguish these substantive rights. In 2012, I traced how the Roberts Court paid scant attention to the integral role private enforcement plays in various regulatory frameworks in which given substantive laws operate. By reducing or eliminating mechanisms of private enforcement, I argued, entire swaths of substantive law would go woefully under-enforced. Since that time, the Roberts Court’s civil justice and procedural jurisprudence—jurisprudence that has brought about systematic retrenchment of substantive rights—reveals that the Roberts Court is not so much inattentive to the exigencies of various regulatory frameworks. Instead, the Roberts Court jurisprudence tends to reveal an affirmative deregulatory aim. Far from merely calling balls and strikes, and in opinions involving questions as varied as ones about class-action rule interpretation, the permissibility of collective action waivers in arbitration agreements, the ability to opt out of collective bargaining dues on First Amendment grounds, standing, and others, the Roberts Court has achieved sweeping deregulation in the past decade. As has been traced in the literature, these deregulatory effects have been particularly pronounced in the area of consumer law. Moreover, the deregulatory effects for the underlying substantive regimes have often been achieved through somewhat indirect, procedural decision-making, but those effects have been almost as significant as if the Court had simply re-written the particular rights-bearing statutes. During October Term 2017, the Court moved beyond consumer law and ramped up its efforts to effectuate deregulation of employment law. Whatever protections workers have enjoyed throughout our nation’s history have been secured in large part through private enforcement. And to be sure, on their faces, critical workplace protection laws like Title VII and the Fair Labor Standards Act (“FLSA”)—both of which rely almost exclusively on private litigation for their effectuation—remain completely intact. However, in three critical (but less-blockbuster-than-Masterpiece Cakeshop) cases—Janus v. American Federation of State, County, and Municipal Employees, Epic Systems v. Lewis, and Encino Motorcars—the Court in back-to-back 5-4 rulings stripped workers of mechanisms to pursue their rights against employers who commit wrongs in the workplace. Both history and present experience teach us that the Court’s recent opinions will help eliminate the regulatory apparatus for workplace injury, and private employers will enjoy increased ability to essentially rewrite their obligations under substantive law through procedural vehicles. This essay proceeds as follows: Part A traces the Court’s employment law jurisprudence from October Term 2017. Part B discusses the regulatory consequences of these opinions and argues that the Court’s opinions this past term reflect political commitments that favor and disfavor certain types of claims and claimants

Alternative Litigation Finance and the Limits of the Work-Product Doctrine

As third-party funding of litigation begins to take hold in the United States, debates about the normative value of such arrangements have heated up among scholars, practitioners, and policymakers. Meanwhile, such arrangements are up and running-providing capital for parties in various cases. As a result, while higher-level debates remain ongoing, courts have had to grapple with on-the-ground issues at the intersection of such funding arrangements and the operation of the Federal Rules of Civil Procedure. In particular, as this essay addresses, courts have begun to deal with the question of whether and to what extent materials created in the course of obtaining and making use of third-party funding in litigation qualify for work-product protection under Rule 26

Mass Arbitration

For decades, the class action has been in the crosshairs of defense-side procedural warfare. Repeated attacks on the class action by the defense bar, the U.S. Chamber of Commerce, and other defense-side interest groups have been overwhelmingly successful. None proved more successful than the “arbitration revolution”—a forty- year campaign to eliminate class actions through forced arbitration provisions in private contracts. The effects for civil justice have been profound. Scores of claims vanished from the civil justice landscape—claims concerning civil rights, wage theft, sexual harassment, and consumer fraud. The effects for social justice, racial justice, gender justice, and economic justice were especially profound, as the legal claims of minorities, women, wage-and- hour workers, and the working poor were systematically and disproportionately foreclosed. Yet now, just when one would expect the defense bar to be taking a victory lap, prominent defendants are abandoning the hard-fought right to disable the class action through arbitration and instead seeking refuge in class actions in court. Why the about face? A surprising counter-offensive to use individual arbitration to plaintiffs’ advantage—Mass Arbitration. This Article presents a foundational analysis of the subject. This Article develops the first and only case study of Mass Arbitration and provides a taxonomy of the results. What emerges is not a variation on old themes but, instead, a new and distinct model of dispute resolution. The investigation reveals significant ways in which the Mass Arbitration model challenges conventional litigation theory wisdom about the economics of individual claiming, uncovers important differences between the Mass Arbitration model and existing forms of aggregate dispute resolution, recasts long-standing debates in litigation theory and jurisprudence, and provides new perspectives on the relationships among private procedural ordering, public procedural reform, and civil justice. Mass Arbitration, in other words, is a phenomenon in its own right. More importantly, it offers a window into the future of civil justice

Recent Developments in Mandatory Arbitration Warfare: Winners and Losers (So Far) in Mass Arbitration

Mass arbitration has sent shock waves through the civil justice system and unnerved the defense bar. To see how quickly and dramatically this phenomenon has entered both the civil justice landscape and the public discourse, one need look no further than the January 2023 filings of hundreds of individual arbitration demands by former Twitter employees against Elon Musk, along with threats to file hundreds more—threats that were announced, no doubt intentionally, on Twitter itself. Plaintiffs are increasingly more aware of mass arbitration as a tool in their arsenal, and defendants are, perhaps for the first time in decades of mandatory arbitration warfare, on the defensive. From 2018 to 2021, I conducted a large study of this relatively new phenomena and published the results. In Mass Arbitration, the first and only case study of the phenomenon, I detailed the history of mandatory arbitration warfare, whereby a coalition of defense-side interests waged a decades-long effort to retrench aggregate dispute resolution through arbitration agreements and class-action waivers imposed in contracts of adhesion. This mandatory arbitration warfare achieved nothing short of an arbitration revolution—it eliminated scores of legal claims across the civil landscape and saved corporations billions of dollars. Yet, just when everyone expected the defense interests to take a victory lap, prominent defendants started to abandon the hard-fought war against class actions and, instead, began to take refuge in them. The study chronicled the genesis of mass arbitration, the transformation of mandatory arbitration from a windfall for defendants to a weapon for the plaintiffs’ bar. Mass Arbitration concluded by capturing early responses from the defense coalition and offered predictions for the future of mass arbitration. This Article updates and expands the original study of Mass Arbitration. Of course, mass arbitration is constantly evolving. Neither the initial study nor an updated analysis in 2023 here mean that investigation and study is complete. However, as with the initial study, this Article provides important snapshots of what is now one of the most substantial developments in the civil justice landscape. Part I of this Article summarizes the rise of mandatory arbitration, the emergence of mass arbitration, and what my prior study identified as the key elements of the mass arbitration model. Part II updates and expands on the original study, with a particular focus on responses to the phenomenon that have emerged. Specifically, Part II catalogs and briefly analyzes an array of responses to mass arbitration that have arisen in the past two years—both those that were anticipated in the Mass Arbitration study and those unanticipated. Part III takes a step back and considers who, so far, can be described as “winners” and “losers” in the mass arbitration landscape. Among other things, taking this step back reveals arbitration warfare’s arbitrariness, which has important implications for claiming by way of mandatory arbitration in particular and in our civil justice system more generally

The Structural Role of Private Enforcement Mechanisms in Public Law

The American regulatory system is unique in that it expressly relies upon a diffuse set of regulators, including private parties, rather than upon a centralized bureaucracy, for the effectuation of its substantive aims. In contrast with more traditional conceptions of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation through litigation is an integral part of the structure of the modern regulatory state. Private litigation and the mechanisms that enable it are not merely add-ons to our regulatory regime, much less are they fundamentally at odds with it. Yet mechanisms of enforcement attendant to private suits are being restricted in numerous ways, and on numerous fronts, in the form of prohibitions on the use of the class action device, the recalibration of procedural mechanisms through private contract to discourage suit, the heightening of pleading standards, and the pre-emption of state law causes of action, just to name a few. Although these restrictions in some instances may provide necessary correctives to the system of private litigation in particular and the functioning of overall regulatory schemes more generally, in their broad-sweeping forms, they threaten to undermine systematically substantive regulatory law. Yet the larger regulatory consequences of these efforts receive inadequate attention. This Article thus offers a more systemic view of these mechanisms of private enforcement by providing elements of a conceptual framework for tailoring mechanisms of private litigation to the contours of particular regulatory regimes. This framework seeks to effectuate and extend the systemic interests in aligning private mechanisms with the regulatory goals of particular areas of substantive law, and at the same time seeks to balance the value of such mechanisms with concerns that they will, in some substantive regimes, generate undesired regulatory consequences. Indeed, this framework highlights the need, in some instances, for limitations on the use of private enforcement mechanisms, as well as the need, in other circumstances, for the creation of new mechanisms that are more carefully calibrated to address potential pathologies. This framework is therefore preferable to one-size-fits-all, abstract approaches to a number of seemingly disparate debates regarding restrictions on private enforcement mechanisms across our legal landscape. By offering a systemic view of various debates about these mechanisms, this framework offers the hope of eventual resolution of these seemingly intractable disputes. This framework also seeks to provide guidance to judges, agencies, and legislatures in the task of tailoring mechanisms of private enforcement to the achievement of public regulatory objectives