Philip Howard Founder and Chair Common Good

Posted July 8, 2008, 9:05am

What is the role of the courts in making social policy? It has been a tenet of conservatism that judges should not be "activist." Nominees for the Supreme Court dutifully make statements that the role of judges is only to "apply the law", not to make law. This indictment of "judicial activism" has its roots in courts that decided to take over the school system, as in Kansas City, or manage "consent decrees for decades”, as with special education in New York City (chronicled in sharp detail by Ross Sandler and David Schoenbrod in Democracy by Decree).

But perhaps this indictment of activism is too simplistic. Doesn't it depend on the context? Someone sues the dry cleaners for $54 million for losing a pair of pants–the claim should be dismissed, or bounced to small claims court. Otherwise justice is used for extortion. Someone sues for an accident in the playground–arguing that seesaws are unreasonably dangerous. Just the availability of the claim results in the removal of seesaws around the country. Should a plaintiff have this unilateral power? Or should a judge defend social norms of reasonable risk as a matter of law?

Recent decisions by the Supreme Court and other courts illustrate how over-simplistic the rhetoric of "judicial activism" is. The Supreme Court reduces punitive damages awards in the Exxon case, citing the need for predictability, overturns gun control laws on the basis of the undeniably vague Second Amendment, and gives military detainees habeas corpus rights. The Supreme Court of California says there is a right to gay marriage, and the Supreme Court of Rhode Island says there is no right to sue manufacturers of lead paint (link to pdf).

Perhaps courts inevitably make social policy–that this is inherent in the power they yield. If this is so, then what are the principles by which we sort out how they should exercise this power?

Russell Wheeler Visiting Fellow The Brookings Institution

Posted July 8, 2008, 9:27am

Making policy (and not just social policy) I think is inherent in the nature of the work that common law courts do, but how they do so, and how much they do so, varies with type of court (e.g., the general jurisdiction state trial level court versus most supreme courts) and the type of case (applying fairly settled principles of law—most cases—versus trying to apply a vaguely worded statute) and type of disposition (overseeing a settlement versus deciding one of the blockbuster cases that the US Supreme Court announced last week). We could spend many days sorting out these differences.

Gillian Hadfield Professor University of Southern California

Posted July 8, 2008, 9:30am

Thanks Philip. I agree with you that courts inevitably make social policy when they decide cases and that the issue is to determine the principles by which they play this role. Is there an initial distinction to be drawn between constitutional cases and other cases? Public law and private law settings? Settings in which individual democratic values are at stake and those in which more economic issues (in tort, contract, intellectual property for example) are at stake?

Robert Joffe Partner Cravath, Swaine & Moore LLP

Posted July 8, 2008, 10:15am

A few thoughts: Philip is fond of pointing out in his social policy work that we either have lots of rules (read too many) or we give the person in authority some discretion and hold him or her responsible for its exercise. The same is true with legal systems. The civil system has lots of rules and supposedly less discretion in the courts. In our system we have constitutions, laws and regulations, but also common law evolution and broad discretion. We generally don't fire judges for "wrong" decisions (but see some state elective systems and recalls) but we usually have several rounds of appeals. We also have guideposts, the language of the constitution, statute or rule, the original intent, the decisions over the years, changing circumstances, reasoning from other jurisdictions, etc. Some of these are more controversial than others, all are subject to more than one view. Ultimately, the courts are subject to scholarly opinion, executive and legislative reactions, and public opinion. ("The switch in time that saved nine.") Whether a conservative court is swinging back to what it sees to be original intent (almost always challenged by the other side) or a liberal court is stretching that last case one step farther, "new law" in any meaningful sense is being made. In a way that seems to be at the heart of our system.

Philip Howard Founder and Chair Common Good

Posted July 8, 2008, 10:39am

I think Gillian's distinction between private and public claims is useful. But I think there's a confusion among judges about the difference.

In talking with judges around the country, I have been struck by the sense that they lack the power to draw lines—of what is an unreasonable claim or defense, what is too much discovery, etc. There is a general conception that they should act as referees in a neutral process.

Of course, judges should be impartial. But law is not "neutral" but a compendium of enforceable values. If judges don't apply boundaries of reasonable values, then people in society can't rely on those values in their daily dealings.

Judge Edith H. Jones Chief Judge United States Court of Appeals for the Fifth Circuit

Posted July 8, 2008, 10:53am

Hello, all. I suggest that if we deviate too much into US constitutional adjudication, we will end in disarray. I suppose all of us have firm views on how to interpret our fundamental law.

There is room for creative and collegial thinking, by contrast, in the areas of tort, contract, and economic regulations. I suggest, tentatively, that in an era of increasing global competitiveness, neither the courts nor legislatures can avoid knowing that whenever our decisions or laws constrain competitiveness or innovation, other countries can offer more hospitable environments. Look at London in the wake of Sarbanes-Oxley; oil drilling around the world, etc. The rule of law ultimately requires transparency, integrity, some kind of equal administration, and intelligibility to those who are governed by it. Not much more, in my view. The challenge of globalism is to maintain these minima, plus the public's desired extras like sound environmental standards, while also maintaining our competitiveness. The legal system, in other words, can't any longer be simply self-referential with respect to our society.

An example: if courts in this country, or the legislature, impose ever stricter environmental controls, doesn't that push the production of necessaries of modern life, like biofuels and lumber, deeper into the rain forests of Brazil?

Another example: the head of Southwest Airlines reminded members of the Texas legislature a year ago of the huge legal struggles that competing airlines put up against his company's start-up. He concluded, whenever the legislature enacts laws, it may make it easier or harder for another SWA to start up. If many can agree that the broad economic environment is affected by legal rules/decisions, then we can begin to assess what's positive and what's negative viewed from the broad perspective.

Finally, I suggest that most judges today are ill suited by training and habit to assess the broader perspectives. The mere dichotomy of interests imposed in ordinary litigation is not a viable means to cure the deficiencies. Ordinary CLE is self-referential and therefore limited.

Russell Wheeler Visiting Fellow The Brookings Institution

Posted July 8, 2008, 10:55am

I sense more variation among judges than does Philip in respect to the judge's role. Indeed, some attribute the declining trial rate to judges’ interfering too much in litigation, pressing settlements.

Alan Morrison Special Counsel for Administrative Reform and Litigation Fair Elections Legal Network

Posted July 8, 2008, 11:23am

At the risk of straying into constitutional adjudication, the recent Supreme Court decision in District of Columbia v. Heller is an interesting case to tease out the meaning of judicial activism and the proper role of the courts. Disclosure: I was deeply involved in the defense of DC's statute that forbids any person from possessing a handgun in the District, including for use in self defense of persons or property in their home. The Court made two separate rulings that seem to raise different questions. First, it held that the Second Amendment protected a private right to own guns for self-defense purposes, regardless of whether the owner had any connection with any form of militia. Second, it held that, while some regulations of guns are proper, a complete ban on handgun ownership in the home was an option that, Justice Scalia said, was "taken off the table" by the Second Amendment. I want to focus on the first issue and perhaps come back to the second.

Some court critics accuse judges of judicial activism when they overturn the popular will of the people, as evidenced in legislative determinations. There are multiple examples, from abortion to same sex marriage, to death penalties, to school prayer. Is the Heller case an example, because the Court directly rejected the views of the Council of the District of Columbia? My view is that the term judicial activism is not a helpful one and is generally applied to a case with which the speaker disagrees on the merits. The main issue in Heller was the meaning of the Second Amendment, and that question has cost our country thousands if not millions of trees to be sacrificed in the debate. Whatever one thinks of the result, the majority did point to specific language in the Constitution, but that is almost always the case. Some would say that the Second Amendment is much clearer in its protection of a private right to own arms than is the due process clause in other contexts, but that clarity is much more in the eye of the beholder than in the comparative language. Or, one might ask, is the language on which the Court relied in striking down race-conscious programs in the Seattle & Louisville schools any more helpful than the due process language in other contexts? This does not mean that judges should not pause before using the constitution to overrule legislation, but objecting to a decision on grounds of judicial activism when the Court is relying on a part of the Constitution is not a helpful way of asking whether the court went too far in a particular case.

Mark Geistfeld Crystal Eastman Professor of Law New York University School of Law

Posted July 8, 2008, 11:42am

The premise of our discussion–that judges exercise a lawmaking or policymaking role–is undeniable, but worth considering more closely. One could imagine a regime in which all matters of public policy were resolved by the executive and legislative branches. Courts would resolve factual disputes and could certify any ambiguities regarding law application back to the legislature. Such a regime, of course, is not feasible for the simple reason that a centralized decisionmaker does not have the capacity to resolve all of our varied legal problems. Decentralization is an inevitable outcome of scarce governmental resources, as illustrated by the early English common law. Judges will have to formulate public policy, so the real questions are ones of degree and so on. Without addressing those questions, one cannot criticize a case by the simple assertion of “judicial activism,” as Alan points out.

Theodore H. Frank Director AEI Legal Center for the Public Interest

Posted July 8, 2008, 11:49am

Ironically, judges that, as Russell puts it, "interfere too much in litigation" to press settlements because they feel overwhelmed by their docket simply guarantee that more litigation will be filed by attorneys who know that judges will prefer to dispose of their cases by pressing for settlements rather than on the merits.

This is a collective action problem that can be solved either by changing the legal rules (as the Supreme Court did in Twombly to permit courts to dispose of purely speculative complaints before expensive discovery takes place) or by, as Philip proposes, changing the legal culture about the appropriate role of the judge in adjudication.

There is, as Russell notes, variation from judge to judge, but I agree with Philip that far too many take an absentee approach to judging by refusing to grant timely summary judgment rulings. And even more take such a hands-off approach when it comes to anything-goes discovery–the increasing expense of which does more to explain the reduction in the percentage of cases that go to trial in the last several decades than any other factor.

I disagree with Philip that "judicial activism" is a meaningless term (though some are certainly trying to make it so by misusing it to describe judicial rulings they don't like), and Philip himself seems to confuse judges being active with judges improperly interposing their own personal views into constitutional law. But as Judge Jones wisely points out, exploring that debate will put us in a morass beyond the scope of what we wish to discuss here.

Returning to the original topic, every year we ask our judicial system to take a greater and greater role in social policy–and not just social policy, but foreign policy, defense policy, and economic policy. Litigation is an awfully blunt and expensive tool to achieve good results efficiently. An adversarial process where courts make social policy based on the situation of one plaintiff with one injury without fair consideration of the underlying costs, benefits, and second-order effects of such a ruling can lead to policy disasters: hence the arguments made by the last several presidential administrations for federal preemption. Maybe we as a society don't want to allow hot beverages or SUVs or morning-sickness drugs to be sold, but that's a decision that should be made by someone other than unelected trial lawyers.

Russell Wheeler Visiting Fellow The Brookings Institution

Posted July 8, 2008, 11:58am

In respect to Alan’s and Mark’s comments, it's worth keeping in mind also that legislatures are hardly vessels of pure democracy. It's hard to say that the products of the US Congress—with a constitutionally malapportioned Senate and supersized role for committee chairs in both houses (and with voters who cast ballots on bases unrelated to many policy choices legislators make)—are necessarily expressions of the "will of the people." Those factors, and related factors I’ve not mentioned, are not dispositive in the debate over courts making social policy, but they cannot be ignored.

Ken Feinberg Managing Partner and Founder The Feinberg Group

Posted July 8, 2008, 12:13pm

I have followed the discussion with interest. As to both issues initially raised at the outset, by Philip Howard, I believe a historical perspective is useful. Cries of “judicial activism” are as old as the Republic; it all depends on the critics’ reaction to the bottom line decision of the Court involved in the decision. I believe it was Professor Gewirtz at Yale a few years ago who pointed out that, statistically at least, Justices Scalia and Thomas have overturned Congressional statutes more than the other Justices, while Justice Breyer has been the Justice most willing to defer to the will of the Congress. I am not sure what this means except that it demonstrates to me the point made by Alan Morrison—that labeling a Judge as a “judicial activist” is not particularly helpful. It all depends on whose ox is being gored.

The same historical perspective applies to the subject of alternative dispute resolution. The idea that ADR will somehow supplant the Courts as the vehicle for resolving legal disputes ignores an understanding of our history. Back in 1840, deTocqueville observed that “sooner or later, every major dispute in the United States ends up in the courtroom.” ADR may be fashionable and of increasing value in assisting our courts (and litigants) in the resolution of disputes; but the idea that ADR is “the wave of the future” or is responsible for the concern about “the vanishing trial” seems to me to ignore historical realities and the role of our courts as part of our heritage. ADR has a role to play; it will not, I believe, be a viable substitute for the courtroom.

Peter H. Schuck Simeon E. Baldwin Professor of Law Yale University

Posted July 8, 2008, 12:28pm

I think that we can all agree on a few points: that courts inevitably make social policy, even if they are simply interpreting ambiguous statutes (their least controversial activity); that, as Alan and others have argued, the notion of judicial activism is inherently question-begging and bespeaks little more than that the speaker dislikes the opinion; and that as Gillian noted, context does (or should) matter when one is assessing a judicial decision. So with that consensus, let's move on. One interesting and important question, it seems to me, concerns the norm of judicial self-discipline and self-restraint, the extent to which a court will hesitate before second-guessing the wisdom or legitimacy of other sources of authority: legislatures, executive officials, contracting parties, etc. Another such question, with perhaps more implications for possible reform that would be desirable by almost anyone's lights, is one alluded to by Russell: the effect on judicial decision-making of the ways in which legislatures conduct their business and write statutes. For example, I have just written a little essay for The American Lawyer about how a legislative checklist could reduce wasteful litigation over relatively uncontroversial but litigation-generating issues.

David Schoenbrod Trustee Professor of Law New York Law School

Posted July 8, 2008, 12:53pm

Mark Geistfeld is correct that courts must have discretion to affect public policy because legislatures and chief executives “do not have the capacity to resolve all of our varied legal problems”. However, in my experience, most judges do not abuse the discretion that they inevitably have. In dealing with a statutory ambiguity, for example, they try to be sensitive to the gravitational pull of the choices that the statute has made.

Michael Traynor Chair of the Council and President Emeritus American Law Institute

Posted July 8, 2008, 1:25pm

Assuming that educating the public about the role of judges is a purpose of this discussion, it bears noting that judges are under significant constraints, including jurisdictional limits, applicable statutes and rules, precedents, and a sense of institutional responsibility. Judicial decisions are public records and must be based on a record. Decisions are subject to review (other than those by the Supreme Court or the highest state court on a nonfederal issue). In appellate courts, panels of three or more judges and the requirement of a majority or plurality provide additional safeguards. Much appellate review involves correcting error rather than making law. Where review is discretionary and law-making may be a relatively greater responsibility, a significant number of the judges must agree to review the case. It is within such constraints that courts have both responsibility and limited leeway for advancing the law.

Gillian Hadfield Professor University of Southern California

Posted July 8, 2008, 1:45pm

Let me take up Peter Schuck and Russell Wheeler’s suggestions that the question of the role of courts in social policy becomes, at least, the question of how legislatures and regulatory agencies draft laws and rules: what scope for discretion is left to the good faith judge who only seeks to grapple with the intent and legislative purpose of the rule maker? There are those who will claim for example that the scope of discretion in courts is too great because legislative and regulatory processes are increasingly dysfunctional: laws are either excessively vague because political bargaining and polarization prevent more careful drafting or they are excessively complex because of the conflicts in provisions introduced by amendments and legislative bargaining. It is important to remember here too that a very large share of all litigation is 1.) in state courts (perhaps 98% of all litigation) and 2.) in traditional common law areas such as contract and tort (including not merely personal injury but perhaps more importantly business torts such as trade secret and fraud) where state legislatures have not apparently acted to replace common law broad principles with narrower legislative rules. There is a further consideration too of whether the tendency to vagueness and complexity—which increases the scope of discretion—is a product of the nature of the legal reasoning that Judge Jones notes is heavily self-referential (based on legal norms and not policy norms).

Philip Howard Founder and Chair Common Good

Posted July 8, 2008, 2:33pm

Maybe it would be worth stating what I, at least, see as the problems here. Polls indicate that the American people don't trust civil justice. They see lawsuits as a way for people and companies to get away with something. This distrust undermines the fabric of freedom, and is related, I think, to confusion over the role of judges.

1. Many judges allow so much latitude in what people argue, and demand in discovery, that a) litigation is too slow (an average of 5 years to settlement in medical malpractice cases) and too expensive for most claims; justice delayed is justice denied...; b) claimants end up making social policy by exposing people to potential damages for ordinary activities (e.g., the accident on the seesaw). Many judges I've spoken with say that to act otherwise is to be improperly "activist." But I think judges have to seize control over what litigants argue. The standards for these decisions are common law principles, informed by precedent, and applied by reference to reasonable social norms. I agree with the recent punitive damages ruling because there is no statute and I think people need to know who can sue for what.
 
2. In the name of individual rights, some judges (liberal and conservative) override or supplant legislative choices. This too leads to cynicism and distrust, as occurred with the busing cases. In most situations, I favor judicial restraint, in the mold of Holmes and, I think, Breyer. But there is clearly a partisan divide here–inaccurately cast as a dispute over activism.
 
But the bottom line for me is that clarifying the role of the judge is critical to maintaining a sense of order in society. We don’t allow juries to interpret standard contractual language because commerce needs predictability. Nor should judges take over the job of legislatures. Defining the places where judges need to reach inside themselves to rule on the boundaries of acceptable conduct and claims is, I submit, a vital challenge of modern justice.

Robert Joffe Partner Cravath, Swaine & Moore LLP

Posted July 8, 2008, 3:14pm

On Philip's first point, I agree that judicial control is essential to an efficient running trial court system. It is near impossible to cabin in judicial discretion by rule. The way to handle it is through the appeal process (not very efficient, particularly on interlocutory rulings) and by education of judges through better lawyering, conferences, studies, scholarly criticism, etc. Of course, judicial selection is key as well. Too many of our states elect judges, a nonsensical way to select judges. The overriding of legislative choices I find a harder issue, particularly at the state level. Many statutes are poorly drafted, and many state legislatures are hardly models of democracy at work. The result, too much is left to judicial discretion. The courts, however, are only part of the problem.

Alan Morrison Special Counsel for Administrative Reform and Litigation Fair Elections Legal Network

Posted July 8, 2008, 3:36pm

I want to respond to Philip's last comment (if time & energy permit I will return to the second part of Heller because I think it illustrates another aspect of judging that needs attention).

Somewhat overstated, Philip decries judges who make up law and make up causes of action that should be left to the legislature. His view of the proper role of the courts is shown in the recent Rhode Island Supreme Court decision in refusing to allow a claim for nuisance against the paint companies for putting too much lead in their paint. Courts should not create such claims; leave them to the legislature.
 
But he also applauds the Supreme Court decision in Exxon to limit punitive damages in maritime cases to the amount of actual damages, apparently in all cases, with no exceptions. He supports that ruling in the name of predictability.
 
For punitive damages outside maritime law, the Supreme Court has used the oft-reviled due process clause to limit punitive damages on a constitutional basis, without regard to what state courts and state legislatures have and have not done. (I leave the appropriateness of those interventions to another day.) In maritime cases, the federal courts generally perform the role that state courts do in non-maritime tort cases. They build on the common law and decide cases as they come up, leaving the major changes in the law and the drawing of new lines in the law to the legislature. Thus, in Exxon, the Supreme Court was free to act like a state court would in a common law tort case. What is remarkable is that virtually all non-constitutional limits on state court punitive damages awards have been imposed by state legislatures, not state court judges, presumably because those judges thought that, if there were to be whole new rules on punitive damages, it was preferable that the legislature make them, because they are elected by the voters and can be removed if the voters don’t like what they do. The dissenters in Exxon made this point (and others), and my question is, results aside, was the majority decision in Exxon improper judicial lawmaking, and if not, why not?

Gillian Hadfield Professor University of Southern California

Posted July 8, 2008, 3:50pm

Philip’s point is a very important one and highlights a different sense of “activist judges” than is often intended. The political concern about activist judges is that judges insert their personal values into, especially, constitutional interpretation on the merits. The activism Philip is talking about is, I think, really about active control over the process of litigation. Anglo-American judges in the common law tradition are largely passive, leaving the shape of issues and evidence to litigants and resolution at trial. This is in contrast to the judge-led (“inquisitorial”) process in many civilian legal regimes. I have the same sense that Philip reports that American judges—most importantly state trial court judges—feel extremely wary of intervening in the process to limit discovery, evidentiary scope and legal theories. Is this due to excessive risk aversion among judges? Is this due to a flaw in American legal norms that value any chance at a “better” decision as essentially infinitely valuable, worth any expenditure of legal costs? Do American judges defer excessively to lawyer and party control over their cases?

Michael Traynor Chair of the Council and President Emeritus American Law Institute

Posted July 8, 2008, 4:00pm

The Restatements use "bookend" illustrations. I will venture one: now that the Supreme Court has invoked a 1:1 ratio in reducing punitive damages to an amount equal to compensatory damages, its holding might serve as one illustration of the developing law of appellate review of damages (whether you agree with the particular ruling or not). I expect, however, that many would be concerned about judicial overreaching had the Court decided that a company's failure to use a double-hulled vessel should, for that reason, expose it to punitive damages. Courts have extensive experience with damages. Congress, however, seems institutionally better situated to hold hearings and reach a policy decision on whether and when to require double-hulled vessels.  (Comparative institutional capability is a separate question from whether the legislative process is broken and unduly influenced by special interests, a question that may bear on our discussion.)

Russell Wheeler Visiting Fellow The Brookings Institution

Posted July 8, 2008, 4:31pm

We seemed to have moved into a bifurcated discussion: on the one hand, how do we define “judicial activism,” unfortunate term that it may be, when judges are faced with a social (or economic) policy as expressed in a statute or agency rule, and what factors properly cabin their decisions in such situations? On the other hand, and mainly as an empirical matter, to what extent (and why) are trial judges, state or federal, activist case managers, willing not only to move litigation to termination or settlement but also, in Philip’s words, willing “to seize control over what litigants argue” so as to “maintain a sense of order in society”?
My sense, as with other discussants, is that state trial judges are less active case managers than federal trial judges for a host of reasons, from whether they have to placate the bar to keep their jobs to calendaring systems used in large state trial courts. But I suspect that any effort to identify patterns of active case management among state or federal judges would find local legal cultures to be a–probably the–key variable.
One final question: when trial judges who are active case managers get elected or appointed to appellate courts, do they tend to be “activist” in the other sense of the term? I doubt there’s any connection at all.

Ken Feinberg Managing Partner and Founder The Feinberg Group

Posted July 8, 2008, 4:36pm

This entire discussion–especially the ongoing comments of Alan and Philip about lead paint and punitive damages–simply reconfirms what I said earlier: any discussion of the appropriate role of judges and the subject of so-called "judicial activism," is simply a debate over the decisions rendered by our courts and the values reaffirmed by those decisions. If you support the bottom line, the opinion is principled and defensible. If you oppose the decision, it is "judge-made law" and a threat to the separation of powers. Nor should one be tricked by so-called "judicial restraint." It is the same argument under a different guise. I, for one, continue to have faith in juries and the day-to-day reliance of our civil justice system on juries. Why, exactly, is it inappropriate to request a jury to decide the issue of punitive damages? Why should the courts substitute their values and opinions to that of the jury in such a case? Jury deliberations should be lawful and under the watchful eye of the judge. If so, what's the beef? And what about the doctrine of preemption? Is that a growing area of "judicial activism"?

Mark Geistfeld Crystal Eastman Professor of Law New York University School of Law

Posted July 8, 2008, 4:40pm

I agree with the distinction that Gillian draws between activism in policymaking and activism in the control of litigation. I’ve often wondered whether judicial passivity in the latter realm stems from the nature of adversarial litigation. If the right outcome is supposed to be derived from a clash of competing ideas, then it becomes more understandable why judges would be wary of limiting the competition in any way.

Theodore H. Frank Director AEI Legal Center for the Public Interest

Posted July 8, 2008, 5:00pm

I'm curious why Michael thinks the question of whether "the legislative process is broken and unduly influenced by special interests" is relevant to the role of the courts. Certainly, nothing in Article I or III changes the balance between the legislature and judiciary based on the supposed influence of special interests. Nor does it appear that courts consider the question when laws are challenged: the legislation that public choice theory teaches us is most likely to be influenced by special interests at the expense of the general public–economic legislation–the legislation granted the most deference by the courts in judicial review. Few would dream of using 21st century American courts to challenge ethanol subsidies or the farm bill or highway earmarks. In contrast, there is little (if any) evidence that legislative decisions over the death penalty or habeas rights of unlawful combatants are motivated by anything other than legislators' good-faith efforts to create public policy, but a five-justice majority of the Supreme Court has regularly substituted its preferences for those of state and federal legislatures on such questions.

Returning to the main topic thread, I think Gillian raises an interesting question. Judge Richard Posner has suggested that judges have no control over their salary but do have control over their workload, and have an incentive to minimize the latter. They thus have the incentive to refrain from intervention in discovery or to rule on summary judgment motions. A hands-off approach means less work for judges (and who wants to weigh costs and benefits of dreary document and e-discovery requests?). It also means less likelihood of committing reversible error resulting in a remand: no appellate court ever spanks a district court for permitting too much discovery. Finally, it increases the uncertainty and expense of litigation and thus the incentives of the parties to settle and take a case off of their dockets.

Solving that sort of problem will require changing the legal rules under which parties conduct litigation.

Robert Joffe Partner Cravath, Swaine & Moore LLP

Posted July 8, 2008, 5:02pm

I would reiterate that it isn't as if the legislatures have it all right and the courts all wrong. Many of the problems stem from the laws being applied, and attempts to improve the judicial system or narrow the laws or limit the damages are often blocked in the legislature by the plaintiffs' trial bar of which many of the legislators are members. Of course, it isn't as if corporate defendants, doctors or teachers are without their power or influence as well. As in so many areas of our society there is an ongoing push and pull and pendulum swing. Just where the pendulum is often depends on the issue, the locale and of course the eye of the beholder.

Peter H. Schuck Simeon E. Baldwin Professor of Law Yale University

Posted July 8, 2008, 5:30pm

Since we now seem to be addressing the issue of special interest influences in legislatures and courts, it is important to remember that there are no generally acceptable criteria for distinguishing between special and general interests, and that as Robert Joffe notes, the integrity and effectiveness of democracy requires that courts not decide cases based on some putative special insight into the nature of general and special interests. That distinction is the very issue over which democratic citizens–and yes, the interests that they form–must deliberate. Courts cannot and should not preempt this fundamental political debate.

David Schoenbrod Trustee Professor of Law New York Law School

Posted July 8, 2008, 5:36pm

To the distinction in the discussion between managing litigation and determining rights should be added the distinction between determining rights and providing remedies. Judges who are anxious not to invade the policy prerogatives of governors and mayors in finding rights are, sometimes, for the same reason deferential to them in entering institutional reform decrees to which they have consented. Yet, these decrees often seek to do more than enforce rights and instead lock in policy choices of the sitting governors, mayors, or their appointees, thereby intruding upon the equally important policy prerogatives of successors’ officials and the legislature. Judges need to be alert to this risk.

Philip Howard Founder and Chair Common Good

Posted July 8, 2008, 7:14pm

It's interesting how hard it is achieve closure on this question, at least for me. There is a lot to the "whose ox is gored" phenomenon. There's also a general distinction between case management and policy making.

But the lines blur. Many private claims—just the availability of private claims—affect the conduct of people who are not parties. In healthcare, studies show, fear of litigation dramatically skews incentives for the worse.  So who makes decisions on what basis is an important matter of social policy. Judges who don't decide are still making social policy—you might get sued for that conduct.

Public choices—overturning statutes, interpreting rights, enforcing consent decrees—always affect the public. I'd really like to see a principled formulation of when or how judges should make these choices.

Judge Edith H. Jones Chief Judge United States Court of Appeals for the Fifth Circuit

Posted July 8, 2008, 9:04pm

Peter has said all that needs to be said, in my view, on the question of courts' presuppositions about the legislative process. We aren't the popular representatives. We deal with the law, not with our quarrels about how it got to be.

I also agree with Ted's theorizing that judges do not manage litigation actively and that this has adverse consequences, but I have different reasons. In federal courts, it is a widespread practice for district judges to assign discovery/pretrial disputes to magistrate judges. Article III judges are pushed to delegate the process, not because they are self-interested, but because they are taught that they should be concerned with "larger" issues. Perhaps the magistrate judges know they won't be reversed by district courts if they let all discovery hang out.  Summary judgment, however, is frequently utilized because the Supreme Court told us to do that in a series of decisions. The Supreme Court has often attempted to rein in the litigation process, from summary judgment to punitive damages to class actions to the Twombly pleading rules. And this leads to my principal observation: what courts created, in the litigation process and the 1938 rules of civil procedure, courts can and have the obligation to correct, if necessary. When legislatures have to step in on procedural matters, courts have failed to keep our house in order. For this reason, I have no problem with the Supreme Court decision, resting on its ancient common law admiralty powers, to limit punitive damages; such damages are not, after all, a lottery prize. And they are within courts' institutional competence.

Getting a handle on the cost and scope of discovery is, in the federal or state system, difficult. (I'd be interested in what you all think of the new e-discovery rules, which appear to escalate costs exponentially.) That's why many good judges instead advocate setting firm trial deadlines and letting the parties curtail their discovery to meet the trial date. Is this practice beneficial to control costs?

Unfortunately, it is also hard for lower court judges to limit the scope of claims, as Philip advocates. The problem is two fold. Pleading rules still give the advantage to the plaintiff for a short and plain statement of his claim. And, equally important, there is hardly any claim, especially in tort or business litigation, that doesn't lend itself to multiple causes of action. How would courts go about reversing the theories of negligence and products liability that have evolved over the past nearly hundred years? And would they in so doing recover from the skepticism that Philip notes? Can state court trial judges just begin saying, for instance, that there's no duty? or that the facts pled don't add up to a claim for interference with contract? When some courts have undertaken this responsibility, they are pilloried in the editorial pages and by much of the legal establishment.

In all these matters, for judges as for ordinary humans, it's always easier to go along and get along. That means being "conservative," in the sense of not bucking the litigation status quo. So we get back to Ted's final comment. Solving the problem of an excess of litigation (and I agree there's a problem, despite the declining number of cases in state and federal courts) will ultimately require a change in the rules of litigation.

Gillian Hadfield Professor University of Southern California

Posted July 9, 2008, 9:00am

Welcome back to day two of our discussion on the role of courts in making social policy. We touched on a number of issues yesterday and distinguished two broad areas of concern. One is with the idea of "judicial activism" in the interpretation of legislation, particularly constitutions, and the appropriate balance between judicial and legislative lawmaking. The other is the idea of "judicial activism"–or lack thereof–in controlling both the substance and process of litigation as it unfolds. Since this is "NewTalk" and the first issue is one that has both been a staple of debates for decades (if not centuries!) and, we seemed to agree yesterday, is very difficult to disentangle from disagreements on the merits of the outcomes judges reach, let me suggest we focus today on the second idea. I think this is potentially an area where there could be real progress in surfacing what's at stake here and some vision of how things might change by educating judges and the legal profession.

The view that a number of us voiced yesterday was that American judges, particularly state court judges, acting in the Anglo-American common law adversarial tradition, often see their role as a relatively passive neutral referee. Unlike civilian judges, who take center stage in shaping issues and investigation of the facts, our judges show tremendous deference to the parties and their lawyers in terms of what the issues are, what discovery and evidence is necessary, and how the case will move forward. Even judges that are heavily involved in case management are, in the end, showing substantial deference relative to the civilian model. Philip's perception that this is an important way in which judges create social policy is a subtle and powerful one. His point is that by deferring to the parties on legal theories that will be explored (short of the relatively high bar of summary judgment), what discovery and evidence is needed and so on, courts create the legal world in which real decisions—about product design or contractual behavior or medical care—are made. And in effect judges infuse that legal world with a set of values that, by requiring extensive engagement with an expensive and risky process even for those who are engaged in reasonable conduct, does not reflect the reasonableness that is at the heart of most legal standards in fact. So judicial approaches to shaping litigation implicitly make social policy by omission: failing to inject the reasonableness in the legal standards themselves sufficiently into the process that follows after a suit is filed.

Let's see if we can make progress, then, on two questions today. First, why are judges so reluctant to judge—to exercise control over discovery process, for example, in such a way as to bring the expected social value of the investigation closer in line with the expected cost? Are judges too risk averse? Pandering to the bar? Too well-schooled in abstract legal reasoning that treats getting to the right legal result as if it were a math problem rather than practical policy? (Obviously there's a premise in here that judges do too little to reign in legal process and if there's disagreement on that, we should also hear about it.) Second, if American judges were to move to a more 'activist' role in controlling litigation at early stages, what should be the principles that govern what cases warrant the full-court press of modern American litigation and what cases do not? Can the judiciary develop a set of principles to guide this, something that doesn't devolve into using process to achieve desired redistributions of rights relative to those that are set out in legislation or common law?

Peter H. Schuck Simeon E. Baldwin Professor of Law Yale University

Posted July 9, 2008, 9:23am

I'll be traveling today so won't be weighing in, but there is, as Gillian speculated, a question of fact that complicates the analysis. Judith Resnik wrote an article 25 years ago on "managerial judging" heralding a new aggressiveness on the part of judges, at least in certain categories of cases like mass torts. If she was right, as I think she was, then the question is whether this trend persists and how important a fraction of total litigation it constitutes.

Mark Geistfeld Crystal Eastman Professor of Law New York University School of Law

Posted July 9, 2008, 9:35am

The problem of case management, at least as identified by Philip, is not merely a procedural problem. Consider the California tort case involving a see-saw on a playground that concerns Philip. In evaluating the element of duty (a matter of law), a judge could conclude that for this category of cases, the mere threat of litigation has negative social consequences (a general reduction in the availability of playground equipment) with little or no social benefit (reduction of unreasonable risk in a few cases). Indeed, California courts have been fairly aggressive in dismissing cases on the ground of no duty. Absent a duty, playground operators are not subject to tort liability, eliminating the untoward social consequences of concern to Philip. To be sure, the element of duty has not yet crystallized into a set of identifiable principles that yield adequately predictable outcomes, but that is one reason why working on this area of the law (like others) is so compelling. In my view, the problem is one of inadequate guidance or predictability, which is then exacerbated by protracted litigation, not the omission of public concerns from the legal inquiry, whether it involves an issue of substantive or procedural law.

Robert Joffe Partner Cravath, Swaine & Moore LLP

Posted July 9, 2008, 9:53am

I think Ted Frank and Judge Jones have it exactly right. Ted says the incentives are wrong: "A hands-off approach means less work for judges (and who wants to weigh costs and benefits of dreary document and e-discovery requests?). It also means less likelihood of committing reversible error resulting in a remand: no appellate court ever spanks a district court for permitting too much discovery. Finally, it increases the uncertainty and expense of litigation and thus the incentives of the parties to settle and take a case off of their dockets." To that I would add and emphasize the way we select judges (elections or political appointments, rather than true merit selection), and what we pay judges (NY hasn't raised the pay of its judges in eight or nine years) doesn't, in the main, get people who are prepared to grapple with Philip's issues. Judge Jones says we have to change the rules of litigation and so we do. Principally a legislative task, and we mentioned yesterday the impediments to breaking through legislative gridlock. There is some room for improvement through administrative action. In the interstices there is room for improvement through education of judges and scholarly and public comment, etc., but we can't expect a sea change except through a change in incentives, a change in the quality of many of the judges, and a change in the rules, most of which is beyond the reach of the judges themselves.

Russell Wheeler Visiting Fellow The Brookings Institution

Posted July 9, 2008, 10:19am

We should take care in assuming more than we know about judges' behavior. Just in the federal courts, there is great variation in how aggressive judges are in moving cases to disposition. Consider the measure of time from filing to trial for civil cases in FY 2007: for two "rocket docket" courts (Eastern Virginia and Western Wisconsin), average months were 9 and 10 respectively and those courts had weighted filings per judgeship of 474 and 556, 35th and 14th highest in the country. In Massachusetts, by contrast, average months was 33, and with relatively low weighted filings per judgeship (313, 78th nationally). (Unfilled judgeship months were 0 in Wisconsin and Massachusetts, 20 in Virginia.)

The figures, which are not 2007 aberrations, obviously don’t measure directly, for example, the level of judicial control of discovery, but they are suggestive. They pose several questions for research—first, are there associations between these temporal measures and judges' willingness to limit legal theories, discovery, etc., and, second, what are the conditions in different districts that may help explain different judicial approaches? Finding that out is one step to trying to change behaviors, if they need changing.

Theodore H. Frank Director AEI Legal Center for the Public Interest

Posted July 9, 2008, 10:23am

Robert Joffe suggests that the problem with judges is that they are largely selected through "elections or political appointments, rather than true merit selection." I query what he means by "true merit selection." Missouri ostensibly has a "merit selection" process that is often held up as a model, but one sees no indication that Missouri judges are superior to other judges. Indeed, the Missouri merit selection process has been notoriously captured by the special interest of the plaintiffs' bar.

The other possible definition of "true merit selection" is the Continental European model of judging being a separate career path than being an attorney, and judges being promoted through a civil service. It is hard to draw direct comparisons since Europeans ask their courts to do much less than Americans do, but such a move would clearly require a revolutionary approach to the legal system far more sweeping than anything a tort reformer or Philip Howard proposes.

Alan Morrison Special Counsel for Administrative Reform and Litigation Fair Elections Legal Network

Posted July 9, 2008, 10:25am

I have two comments.

First, using the see-saw case as a starting point, I am reluctant to comment on it without having the facts, but if the case is a problem, it is a problem that we have had since the founding because our tort system is a common law, case-by-case system, with a heavy role for juries. There is an inevitable tradeoff in predictability, but a gain in flexibility and, many would say, fairness in individual cases. I think the system is, on balance, good, albeit not perfect (but what is). If others disagree, then the legislature must step in and either write new rules or legislate new directions (or limitations) on judges.

Second, on massive discovery and control of litigation, most cases, even in federal court, are done with modest if any discovery and little judicial involvement, as the Rule committee found in the 90's when it changed the rules on discovery. And that lack of judicial involvement does not seem to cause much of a problem. The key problem is identifying those cases, which, because of their factual complexity or legal importance, should have greater judicial involvement early on and, perhaps, a greater opportunity for at least discretionary interlocutory review of important legal questions.

Robert Joffe Partner Cravath, Swaine & Moore LLP

Posted July 9, 2008, 11:34am

I think there is pretty good evidence that on balance appointment of judges is preferable to election. See generally, "Recommendations on the Selection of Judges and the Improvement of the Judicial Selection System In New York State" (December 2006) and "Ibid" (October 2003). (I confess to being the Chair of the NYC Bar Association Task Forces that issued these two reports.) By merit selection I meant a system whereby the chief executive appoints judges from a list of qualified nominees prepared by an independent screening commission. The two reports flesh out the process. This is meant for state courts, not to replace the system set forth in our federal constitution.

Philip Howard Founder and Chair Common Good

Posted July 9, 2008, 11:42am

There is certainly a need for empirical work in this area, from studying the effects of perceptions of justice on social behavior to judicial management (a focus of Becky Kourlis's Institute at Denver University). Looking at broader social effects is perhaps what is needed to convince Alan, Ken and many others that the current system isn't working well, at least in areas such as healthcare, children's play and employment disputes. Anecdotal evidence and polling in those areas certainly indicates there is a serious misalignment of incentives with social goals.

Legislation would be important here, but I disagree that legislation is the only avenue for change. The ALI could take on a broad range of issues, including when mixed questions of law and fact should be decided as a matter of law. (My suggestion: the judge should rule when allowing a claim or defense would affect the conduct of people not in the courtroom.) The ALI might also take up the issue of whether there should be standards for non-economic damages. Standards of reasonable risk could be developed by private groups, as ANSI standards are set for sturdy tools. Common Good is starting to organize a coalition to recommend standards of reasonable play.

I think I have a more optimistic perception of judges than others of you. But it's hard for judges to draw lines until: 1.) They're told that's part of their job (Judge Jack in the silicosis case comes to mind), and 2.) there are principles and standards that they can look to in making these rulings. I want to emphasize that the goal is to make justice work better not only for society at large, but for aggrieved plaintiffs. We all have seen guilty defendants avoid justice by dragging their heels for years.

Judge Edith H. Jones Chief Judge United States Court of Appeals for the Fifth Circuit

Posted July 9, 2008, 11:45am

Two comments on Alan's views. First, since torts evolved as judge-made law, why must legislatures, not judges, retreat from any excesses or unforeseen consequences? Judges, especially at the highest state court level, have the power and duty to do this.

Second, if it's true that most discovery in federal court needs no judicial intervention and is pretty straightforward, that doesn't mean it isn't too costly. A few years ago we had attorney fee issues arising in routine Title VII litigation, and the defense had expended over $300 thousand on litigation costs through summary judgment! Probably 5-6 times the salary of the employee who had sued. Maybe we should go back to trial by ambush? Maybe with affidavits in advance submitted by each side on what the other will say??

I agree with Russell that rocket dockets should bear research. Sometimes they force defendants to settle in complex cases like patents, I'm told.

Robert Joffe Partner Cravath, Swaine & Moore LLP

Posted July 9, 2008, 11:59am

Not sure that forcing settlement is the best goal. I suspect rocket dockets in complex cases do that, as do rulings which allow costly and burdensome discovery, but forcing settlement by itself can't be a goal of a justice system. What devices are appropriate and which ones are not?

Ken Feinberg Managing Partner and Founder The Feinberg Group

Posted July 9, 2008, 12:08pm

I think too much is expected when it comes to the concept of “merit selection.” I agree with Bob Joffe that the election of judges is not a preferable option. But, having worked closely over the years in establishing judicial merit selection committees on behalf of United States Senators, I have concluded that the creation of such “committees” merely substitutes low level politics for senatorial politics. Why not simply rely upon the United States Senator to recommend to the President his/her personal choice for a judicial vacancy? Most of the time, so-called merit selection committees are simply following the orders and recommendations of the appointing Senator in any event. Indeed, in my experience certain worthy judicial candidates are unwilling “to apply” to the merit selection committee, and have their name disclosed as being interested in a vacancy; the whole process becomes a competition. Instead, I prefer the approach of former Senator Paul Sarbanes of Maryland, who preferred the traditional system of having the personal responsibility of forwarding a name to the President. A political decision--of course; but any more political than recommendations to that Senator from a merit selection committee? I don’t think so. In any event, food for thought.

Gillian Hadfield Professor University of Southern California

Posted July 9, 2008, 12:59pm

There clearly is a need for more empirical work on judicial management approaches. Peter is right that Judith Resnik wrote about the revolution in managerial judging in federal courts 25 years ago, but my perception is that the clear move to case management was simultaneous with a move towards the view that the role of the judge is to settle cases. So case management is oriented around how to prompt settlement. That together with the inadequate resources available to the courts which increases the pressure to dispose of cases may in fact be behind the clear increases in time to completion and costs, and scope of discovery, that we are witnessing. Alan mentioned the civil justice reforms and here it may also be helpful to add another reference to the empirical work. RAND did a study of the impact of the reforms, intended to decrease costs and increase speed through aggressive management, and found that the efforts INCREASED time and costs, I think by creating whole new fronts on which parties could dispute, and increased contact with the judge, requiring increased preparation and research.
 
I agree rule changes are needed and that, as Edith Jones points out, there is a real need for judges to revisit their rules. But I think there is also a need to get underneath the cultural shift that occurred and Resnik documented 25 years ago—with the emphasis on settlement. I suspect there’s a paradox here: the more judges focus on settlement the more procedures and delays and unpredictability they create. Is there a view in the judiciary of “give them more time and discovery and they’ll settle?” I have heard anecdotally, too, that some judges use summary judgment and other pre-trial motions to create uncertainty for both parties so that neither feels confident about proceeding to trial and hence the pressure to settle increases.
 
On the judicial selection question—I suspect what happens to judges when they are on the bench is at least as important as the selection process, although I’d be interested in empirical research on whether elected judges are more or less likely to engage procedures that increase legal uncertainty and costs.