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Summary: Where is that line drawn between judges ruling in a specific case and setting a standard by which we all abide? Our panelists largely agreed that setting social policy is an inevitable consequence of judicial rulings, but does that constitute judicial activism?

Questions about how lower courts can control claims are fundamental. How those decisions reverberate through society can be unpredictable. What Judge Jones calls “managing litigation actively” may encompass which cases to hear as well as how much time or discovery is acceptable. Lord Hoffmann suggests that “trial judges need to be encouraged...to be more robust about throwing out hopeless claims." Gillian Hadfield asks whether that exercise is, in itself, determining social policy.

Our panelists address whether judges should be selected on merit, by appointment, or by election, and what standards of conduct should apply. “Managerial judging” comes to the fore, asking if a hands-off approach serves the community better than does a more aggressive approach.

Gillian Hadfield Professor University of Southern California
MODERATOR

Posted July 8, 2008, 9:00am

Gillian Hadfield: 

Welcome to this online forum discussing the role of the courts in making social policy. Over the next three days, we will address such questions as: Is it possible for judges to apply the law in court cases without making or affecting social policy? What is “judicial activism”? To what extent should courts and judges take into account the broader societal effects of the cases they rule on? How have case law judgments affected social policy? Where do we draw the line between decisions that courts should make and those that they should not?

We are all coming to this discussion with different perspectives and opinions, and I look forward to exploring these issues in this discussion. Personally, I have been thinking and writing about these issues lately in two very different perspectives. One is in the context of an active debate among academic lawyers and economists about the relative merits of common law and civil code legal regimes in fostering growth in transition and development economies. Common law is frequently seen as adaptive and flexible, able to respond to changing times and needs while civil code regimes are seen as more rigid and ‘top down.’ But flexibility clearly poses the ‘activism’ question of whether judges are the appropriate adapters of law to changing times. The other perspective I have worked with recently is in relation to the increasing pressure to divert matters out of court with alternative dispute resolution and settlements; I’ve wondered whether this idealized reduced role for courts also means a reduced role for citizen participation in generating the legal standards by which we live, standards that are in large part developed through the concrete ‘activist’ process of adjudicating actual ‘cases and controversies’ and not just legislating.

Let me ask Philip Howard to weigh in to get us started with his views.

Philip Howard Chair Common Good

Posted July 8, 2008, 9:05am

Philip Howard: 

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

Russell Wheeler: 

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
MODERATOR

Posted July 8, 2008, 9:30am

Gillian Hadfield: 

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

Robert Joffe: 

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 Chair Common Good

Posted July 8, 2008, 10:39am

Philip Howard: 

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

Judge Edith H. Jones: 

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

Russell Wheeler: 

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

Alan Morrison: 

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 Sheila Lubetsky Birnbaum Professor of Civil Litigation New York University School of Law

Posted July 8, 2008, 11:42am

Mark Geistfeld: 

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 Founder and Rresident Center for Class Action Fairness

Posted July 8, 2008, 11:49am

Theodore H. Frank: 

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

Russell Wheeler: 

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

Ken Feinberg: 

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

Peter H. Schuck: 

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

David Schoenbrod : 

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

Michael Traynor: 

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
MODERATOR

Posted July 8, 2008, 1:45pm

Gillian Hadfield: 

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 Chair Common Good

Posted July 8, 2008, 2:33pm

Philip Howard: 

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

Robert Joffe: 

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

Alan Morrison: 

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
MODERATOR

Posted July 8, 2008, 3:50pm

Gillian Hadfield: 

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

Michael Traynor: 

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

Russell Wheeler: 

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

Ken Feinberg: 

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 Sheila Lubetsky Birnbaum Professor of Civil Litigation New York University School of Law

Posted July 8, 2008, 4:40pm

Mark Geistfeld: 

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 Founder and Rresident Center for Class Action Fairness

Posted July 8, 2008, 5:00pm

Theodore H. Frank: 

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

Robert Joffe: 

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

Peter H. Schuck: 

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

David Schoenbrod : 

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 Chair Common Good

Posted July 8, 2008, 7:14pm

Philip Howard: 

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

Judge Edith H. Jones: 

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
MODERATOR

Posted July 9, 2008, 9:00am

Gillian Hadfield: 

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

Peter H. Schuck: 

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 Sheila Lubetsky Birnbaum Professor of Civil Litigation New York University School of Law

Posted July 9, 2008, 9:35am

Mark Geistfeld: 

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

Robert Joffe: 

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

Russell Wheeler: 

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 Founder and Rresident Center for Class Action Fairness

Posted July 9, 2008, 10:23am

Theodore H. Frank: 

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

Alan Morrison: 

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

Robert Joffe: 

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 Chair Common Good

Posted July 9, 2008, 11:42am

Philip Howard: 

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

Judge Edith H. Jones: 

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

Robert Joffe: 

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

Ken Feinberg: 

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
MODERATOR

Posted July 9, 2008, 12:59pm

Gillian Hadfield: 

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.

David Schoenbrod Trustee Professor of Law New York Law School

Posted July 9, 2008, 1:10pm

David Schoenbrod : 

At the beginning of day one, Philip mentioned the New York City special education case as an instance of courts shaping social policy. It changed how the school system spent billions of dollars and affected the education of millions of children, often for the worse, according to diverse thoughtful commentators. Much of the massive impact on public policy can be ascribed neither to correcting the violation of the federal statute in question (because much of the decree had nothing to do with that) nor the hesitancy of judges to limit discovery or grant summary judgment (because a violation was found early on and the decree went on for many years afterward). The prior discussion is, however, relevant. An important theme in that discussion was that, as Ted Frank put it, "a hands-off approach means less work for judges". The decree controlled special education for many years with zero involvement of the judge other than to approve attorneys’ fees. The judge turned over the court's power to negotiation between the attorneys in the case with no real effort to ensure that this power was used to cure the violation. That is the safer course for the judge because the judge does not have to take responsibility for the decree and its impact on public policy. Yet, mayors who were elected after the original decree was entered objected, but they were locked into the old decree by consent of their predecessors in office. This problem deserves attention in any discussion of the role of the courts in making social policy.

Theodore H. Frank Founder and Rresident Center for Class Action Fairness

Posted July 9, 2008, 1:24pm

Theodore H. Frank: 

David Schoenbrod is being too modest to mention it, but his book Democracy by Decree (with Ross Sandler) is critical reading on the issue he raises. And, if anything, his 1:10 post understates the problem, because often government officials will use the consent decree process to achieve political results that would be impossible otherwise, most notoriously in California, where Governor Gray Davis undid a referendum through a consent decree that he had no power to undo without the help of a federal judge's order. Judges are misusing their Article III power when they sign off on such collusive settlements.

Russell Wheeler Visiting Fellow The Brookings Institution

Posted July 9, 2008, 1:47pm

Russell Wheeler: 

Judith Resnik’s very important “Managerial Judging” article and more recent scholarship (e.g., her 2000 “Trial as Error” article) certainly show a link in some judges’ minds between active case management and pushing cases to settle. But another view, held by activist case managers, is that most cases are going to settle anyway, so best that they settle without unnecessary discovery and time. The judge, in fact, can look out for the parties’ interests in a way that their lawyers may not.

As best I know, we don’t have information on how much of the decline in trials is due to more settlements versus other forms of termination and/or increased litigation costs. Research underway at Becky Kourlis’s Institute, which Philip mentioned, may shed some light on that.

But consider this: in an earlier post, I noted that last fiscal year, the federal courts in Eastern Virginia and Western Wisconsin were among the fastest in the nation in moving civil cases to trial, and with higher weighted caseloads per judge than Massachusetts, which was relatively slow to try cases. But Virginia and Wisconsin both out-paced Massachusetts in trials completed per judge (civil and criminal)—28 and 22 versus 18. Just three courts, but at least suggestive.

Also, while I would never quibble with Ken Feinberg about how the Senate works, there is some evidence, at least among Bush 2 district appointees, that those from states where senators use commissions get confirmed a little faster and have slightly higher ABA ratings, but that may be due to the fact that they constitute a higher proportion of sitting judges, which may in turn be due to the fact that sitting judges, without political connections, are more willing to apply to commissions.

Stuart Taylor Columnist National Journal

Posted July 9, 2008, 2:32pm

Stuart Taylor: 

Apologies for entering the discussion late due to a writing deadline. After reading many excellent posts, I would stress what strikes me as one unambiguously bad consequence of judges simply pressing (or waiting for) parties to settle rather than issuing (or signaling that they will issue) timely rulings of law:

Such judicial passivity advantages those parties–be they plaintiffs or defendants–who are vexatious enough and have resources enough to push unreasonable positions to the hilt at the expense of those parties who have stronger positions on the merits. At least in extreme cases, the judiciary thereby lends itself to use of the law as a tool of extortion or harassment.

Gillian Hadfield Professor University of Southern California
MODERATOR

Posted July 9, 2008, 2:53pm

Gillian Hadfield: 

David has broadened the relevant scope of the issue from passivity on pre-trial and trial management to post-trial remedies. The issues there do seem very similar.

Do people have thoughts on what principles might guide judges who seek to reverse the trend to excessive delegation of process to the litigants?

Gillian Hadfield Professor University of Southern California
MODERATOR

Posted July 9, 2008, 4:21pm

Gillian Hadfield: 

John Witt of Columbia Law has just posted a comment on our discussion that I think is worth looking at—as he emphasizes, the types of empirical questions we're raising may be best addressed by distinguishing among different types of cases and legal concerns, rather than looking for answers that apply across the full range of cases. This goes even further than our initial observations about distinguishing public and private law cases and economic and non-economic settings.


It's interesting that we are all drawn to the diagnosis and demonstration of the problem, as of course we should be; harder it seems is to articulate what might work better or principles for a shift in judicial approaches. John has some observations on that as well.


[Editor's Note: See Reader Comments for full text of Prof. Witt’s remarks.]

David Schoenbrod Trustee Professor of Law New York Law School

Posted July 9, 2008, 6:00pm

David Schoenbrod : 

Gillian has asked how to respond the concern that I have raised about institutional reform decrees in cases against state and local government. Let me offer one suggestion that Ross Sandler and I have made in our book. In such a case, the court should enter a decree only to the extent that it is needed to prevent future violations or repair past ones. That is the law in contested cases but most decrees are entered by consent and many consent decrees are considerably broader than justified. The court should begin the remedial process in cases where the judge has made no finding of violation by requiring the parties to agree on a bill of particulars as to the violations that the case addresses.

Mark Geistfeld Sheila Lubetsky Birnbaum Professor of Civil Litigation New York University School of Law

Posted July 9, 2008, 6:57pm

Mark Geistfeld: 

In the practice of insurance-coverage litigation, there is a so-called "big claim" exclusion that describes the predictable manner in which an insurance company will deny large claims by relying on an alleged ambiguity in the exclusionary language of the policy. Trying to figure out whether this practice is vexatious or wasteful, however, is surprisingly hard. To use an extreme example motivated by the World Trade Center insurance litigation, suppose the company faces a claim for $1 billion. Even if the alleged exclusion has a 1 in 1,000 chance of prevailing at trial, the insurer has an incentive to deny the claim and spend $1 million on litigation. Is the insurer’s denial of coverage frivolous or unreasonable? Should the insurer be subject to bad-faith liability for denying the claim on such a basis? We want insurers to deny claims when appropriate, but drawing the line is exceedingly hard. As the stakes of litigation increase, it is clear that far-fetched claims become more common. It is much less clear whether those claims are frivolous, or whether it would be desirable to have judges try to induce the settlement of such claims.

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

Posted July 9, 2008, 8:02pm

Michael Traynor: 

A useful resource for judges and counsel is the ALI/UNIDROIT project entitled "Principles of Transnational Civil Procedure." It was adopted and promulgated by the two sponsoring organizations in 2004 and published by Cambridge University Press in 2006. Professors Geoffrey C. Hazard, Jr. (Hastings Law School) and Michele Taruffo (University of Pavia, Italy) were the Reporters and stated in their preface that "a system of procedure acceptable generally throughout the world could not require jury trial and would require much more limited discovery than is typical in the United States. This in turn has led us to conclude that the scope of the proposed Principles...is limited to commercial disputes and excludes categories of litigation such as personal-injury and wrongful-death actions, because barring jury trial in such cases would be unacceptable in the United States." The utility of the Principles is not limited to transnational disputes. Although a judge or arbitrator could not compel parties to follow the Principles, they offer an important model for judges and litigants who might consider a stipulation and order that such fair and efficient procedures will apply in a particular case, with adaptations if necessary to the circumstances of that case.

Lord Leonard Hoffmann Senior Judge Appellate Committee of the House of Lords

Posted July 10, 2008, 5:11am

Lord Leonard Hoffmann: 

I have come in rather late, but much of the discussion has been about how trial judges behave. Perhaps one should concentrate on the guidance they should receive from Supreme Courts, and I imagine that in torts, contract, etc., we are talking about State supreme courts. They are responsible for the proper functioning of their judicial system and although it might be "judicial activism" to make changes in the law for purposes of social engineering, it must be part of their proper function to try to prevent existing law or procedure from having obviously unintended consequences, such as discouraging people from undertaking socially desirable activities. I should have thought, for example, that trial judges need to be encouraged from above to be more robust about throwing out hopeless claims. Otherwise it is not surprising that they will play safe and try to avoid being reversed.

Philip Howard Chair Common Good

Posted July 10, 2008, 7:09am

Philip Howard: 

In reviewing the discussion so far, I see a few points that perhaps bear more comment.

1. John Witt suggests that the second-level effects of litigation on the functioning of society probably vary area by area. That suggests a need to focus further work, both empirical and jurisprudential, in the particular areas--auto crashes may be different than medical errors.

2. As Alan Morrison suggests, it would be a major shift in responsibility, about which Alan is dubious, for judges to assume the job of looking at the broader social implications of claims--say, drawing boundaries of reasonable risk for playground equipment if legislatures have not spoken on the issue. Should judges have this job? They would not merely make rulings on duty, but on outer boundaries of reasonableness. This would be a major shift, supported in theory (Holmes: negligence is a “standard of conduct which we hold the parties bound to know beforehand…not a matter dependent upon the whim of the particular jury.”) but not in current practice.

3. Most of you seem to agree that "activism" is a term applied to decisions people don't like. But isn't there a line to be drawn here--for example, why should a judge oversee the special ed system in NYC for decades? It's one thing to interpret rights and draw boundaries of reasonable claims and argument, and another to manage public services.

4. Judicial reluctance to intervene in case management or drawing boundaries may be the result of laziness, risk-aversion or fear of being labeled "activist." But part of the problem, I believe, is confusion over the power of the judge to draw on his or her values to say--"that's just too much" or "that defense is too remote" or "let's have a briefing over whether seesaws are a reasonable risk." Various of you have suggested that activism means a judge "drawing on his own values." I would argue that of course a judge has the power to draw on values--how else can the wheat be separated from the chaff? But it's not his "personal" values but his perception of community values. To quote Cardozo: It's "not what I believe to be right. It is what I may reasonably believe that some other man of normal intellect and conscience might reasonably look upon as right."

5. Various of you, and Jim Copland in his comment, suggest the need to change rules. Which rules?

Gillian Hadfield Professor University of Southern California
MODERATOR

Posted July 10, 2008, 9:10am

Gillian Hadfield: 

Thanks to all of you for your active participation in our discussion the last two days. In yesterday's discussion a few people picked up on Ted Frank's notion that the problem of excessive delegation of control over process to lawyers may be due to judicial incentives and in particular the reduced workload and exposure that a "hands off" approach generates. Robert Joffe noted in particular that judges are poorly paid in most instances and "we can't expect a sea change except through a change in incentives." Russell Wheeler cautions us however to be careful about over-generalizing about judicial behavior, given how little empirical evidence exists. He emphasized that more careful research about the differences between 'rocket docket' courts that have significantly cut times to completion and the number of trials completed (suggesting that it's not all about increasing settlements which, as Robert Joffe, Stuart Taylor and Ken Feinberg observed, is not clearly the right goal for the judiciary) could help us answer the question of how to motivate judges to, as Philip puts it, better align the incentives created by a costly system with the social goals embedded in substantive law. Alan suggests that, at least based on work done in the early 90’s, there is little discovery and judicial involvement in most cases; others suggest we really just don't have good facts to separate anecdote from data and to see whether things have changed dramatically in recent years, particularly (as Judge Jones suggests) in light of e-discovery rules.

I think there's clear consensus that we need more empirical work to investigate, in particular, how judicial incentives work and why some courts appear to operate differently than others and on how litigation expense and unpredictability, which Mark Geistfeld emphasizes, impact the liability-sensitive decisions individuals and corporations make. We all recognize that any policy recommendations need to be grounded in such empirical work but given we can't complete that today, I'm wondering whether we might focus nonetheless on two predictive questions, which might identify some of the factors we need to investigate. The first question is posed by Jim Copland (in Reader's Comments), picking up on an earlier query by Judge Jones: What if we eliminated much of what we know as discovery and went to a European model that reaches decisions based on much smaller records? (This is different from the more radical suggestions of moving to a European model of a career judiciary or putting the judge directly into an investigative role.) I've sometimes wondered why we feel comfortable telling Senators that they have 15 minutes each for questions in Congressional hearings into major public issues and yet uncomfortable telling plaintiffs and defendants they have 10 document requests or 5 depositions or one week maximum of court time.  The second question, raised by multiple comments yesterday, is whether changes in judicial behavior require rule changes or whether substantial change can be accomplished (or also accomplished) through a role (as Philip suggests) for the ALI and private entities?  Can judges change the rules or does this have to come through (what some thought was a hopelessly gridlocked) legislative process?

Russell Wheeler Visiting Fellow The Brookings Institution

Posted July 10, 2008, 10:28am

Russell Wheeler: 

As to the second question posed by Gillian Hadfield—whether judicial behavior can be changed by rules and legislation or through exhortation by private entities:

First, judicial education can produce changes in some areas. Judith Resnik sees it as a contributing factor in the shift to managerial judging, and she’s right about that.

Second, the success of change agents depends in part on the behavior one seeks to change—when the Supreme Court said “more summary judgments,” that happened, in at least some courts. To the degree the behavior in question reflects judicial attitudes about the proper judicial role, consider also the force of what Thomas Church 30 years ago labeled “local legal culture.” He showed fairly strong statistical associations between civil disposition times in 21 general jurisdiction state trial courts and the corresponding federal district courts in the same cities. Cases moved fast in New Orleans—state or federal—and much more slowly in Boston, state or federal.

Our discussion is about much more than time to disposition. It’s also about the degree behaviors reflect strong underlying attitudes in the bench and bar of a particular locality about what a judge is supposed to do or not do. Rules changes are up against a powerful force.

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

Posted July 10, 2008, 10:36am

Peter H. Schuck: 

Again, I'm traveling today and won't be able to intervene much or at all, but I do want to observe that our litigation system is exemplary of the kind of decentralized, privatistic, market-driven, official-marginalizing arrangements that pervade most of America's other social systems, making us very exceptional in this respect among the world's advanced liberal democracies. This is certainly not to defend the system, but it is to suggest that there are deep structural social, political, economic, and cultural forces at work that, for better and for worse (here, many suggested or assumed yesterday that it is indeed for worse, at least in the litigation system), will be very difficult to change in significant ways. Reform will necessitate attacking, or at least inducing greater public skepticism about, the characteristics mentioned in my first sentence.

Stuart Taylor Columnist National Journal

Posted July 10, 2008, 10:43am

Stuart Taylor: 

I am inclined to answer "yes" to Gillian's first question: Should we greatly reduce the time and resources spent on discovery and reach decisions on much smaller records? But this is largely a gut judgment without benefit of litigation experience. My question for those who do have litigation experience is whether this approach would produce markedly worse outcomes. If not, slashing discovery would be all benefit and no cost, would it not?

In a somewhat tangential reaction to Gillian's second question, I agree with what I took to be Judge Jones's observation yesterday that courts should be far less hesitant to change judge-made law than to overturn democratically adopted laws. To the extent that there is such a thing as unjustified "judicial activism," I think it involves using judicial power to override or preempt democratic choices that violate no clear constitutional command. I see no problem of legitimacy in using judicial power to clean up the judiciary's own messes. I also agree with Philip that the kind of judicial passivity that in recent decades has allowed juries to impose unpredictable liabilities on defendants engaged in reasonable conduct is one of the judiciary's own messes.

Theodore H. Frank Founder and Rresident Center for Class Action Fairness

Posted July 10, 2008, 10:47am

Theodore H. Frank: 

Judges can be resistant to rules changes. The Private Securities Litigation Reform Act requires courts dismissing securities cases to consider on their own motion whether awarding attorneys' fees is appropriate, and many courts simply fail to make the inquiry. (Defense attorneys know not to bother to press the issue: why spend the client's money litigating something where the judge is not going to exercise his discretion in your favor?) We're also seeing judges circumvent the expanded federal jurisdictional rules of the Class Action Fairness Act by turning the burden of proof of amount-in-controversy on its head.

My concern is that the legal culture is going in the opposite direction from where it needs to go to achieve Philip's desired results. To take the most notorious example, the first dozen or so reported cases to consider product liability for hot-coffee spills dismissed them out of hand. When a New Mexico jury, helped along by factually false expert testimony, awarded $2.9 million to Stella Liebeck for her coffee spill, it was a national uproar. The legal community could have reasonably responded by saying "This is an outlier, courts usually get this right, and the courts will get this right on appeal." Instead trial lawyers and the academy reflexively defended this ludicrous lawsuit (again using questionable facts) and now torts students across the nation are regularly taught that it's within the realm of reason to sue coffee vendors for selling hot coffee if one spills it on oneself, and those students are going to be in the next generation of judges.

Philip Howard Chair Common Good

Posted July 10, 2008, 11:00am

Philip Howard: 

Briefly on the McDonald's hot coffee case....I can imagine a judicial ruling that 180 degree coffee from a drive-in window is outside the boundaries of reasonableness. My argument would be that there needs to be a judicial ruling so vendors know where they stand.

 

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

Posted July 10, 2008, 11:51am

Judge Edith H. Jones: 

On Gillian's excellent questions about empirical research, why not study the effects of tort reform in Texas, where medical malpractice rules have dramatically reduced litigation and doctors are supposedly flocking to the state now? The new legislative rules entail, I believe, statute of limitations modification, reducing joint /several liability, requiring expert affidavits at an early stage, reducing non-economic damages, and limiting punitive damages. Defense lawyers as well as plaintiff attorneys are unhappy.

I think it's not so much "judicial incentives" as overall culture or, as Russell says, local culture, that influences judicial reluctance to declare some cases out of bounds. Culture can change–look at Scalia's largely successful project to require analysis of statutory text rather than legal history. Further, awareness of extrinsic effects can be taught to judges. I'm not pessimistic about that, especially as I said yesterday, when anyone can see the impacts on our competitiveness in the global economy. ALI, Rand, the FJC, Center for State Courts, etc.–all could be an immense help.

Finally, note that the journalist and two judges (Lord Hoffmann and I) all agree that judges at the high court level can make helpful changes in procedure and substance. In my experience, this requires outside-the-box, big-picture thinking. In my experience also, many judges don't yet agree on the need for such thinking. Russell can correct me, but federal judicial training rarely if ever includes this type of discussion.

Theodore H. Frank Founder and Rresident Center for Class Action Fairness

Posted July 10, 2008, 12:22pm

Theodore H. Frank: 

I think that is where Philip and I differ. Millions of people safely purchase 180-degree coffee every day from Starbucks, McDonald's, Burger King, and countless other vendors. Barring evidence that vendors in the highly competitive coffee market are colluding to force unwanted temperatures upon consumers, it should be presumptively reasonable to sell a product that people prefer without a legislative determination to the contrary. It's bad enough when a legislature acts as a nanny state and tells people they cannot be trusted to decide for themselves what to order at a drive-through window, but at least such a decision has democratic legitimacy. A common-law judicial decision, even one to permit a jury to second-guess such decisions on a case-by-case basis, does not have that saving grace.

Those interested in comparative jurisprudence will be interested in the British response to attorneys' attempts to export American-style liability for hot-coffee spills.

This is where, I think, judicial modesty should come into play. As Judge Jones noted Tuesday, a generalist judiciary is not very well suited to be deciding large-scale questions of social and economic policy. The legislature may not get it right, either, but it better suits separation of powers if the judiciary is taking a "First, do no harm" approach before tinkering with incentive structures. Judge Easterbrook makes this point very forcefully in the context of antitrust in his classic Texas Law Review article, but the principle is equally applicable in product liability, medical malpractice, and, as Justice Breyer noted for a seven-justice majority in Credit Suisse First Boston v. Billing, securities litigation.

Russell Wheeler Visiting Fellow The Brookings Institution

Posted July 10, 2008, 12:32pm

Russell Wheeler: 

Judge Jones’ statement about Federal Judicial Center judicial education is pretty much on target, largely for the underlying reason cited—revamping of judge-made rules is not something most busy judges want to confront at educational programs, and their preferences dictate program agendas. I’m fairly sure a review of the offerings of state judicial education counterparts would show the same thing.

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

Posted July 10, 2008, 12:35pm

Michael Traynor: 

The hot coffee case is an urban legend and raises questions about the responsibility of the media as well as commentators in reporting on court decisions and jury verdicts. The news reports in general did not report, for example, the third-degree burns and permanent scarring the elderly victim suffered, the painful skin grafts she endured, the fact that she was willing to settle for her medical expenses of about $20,000 and that the company offered her only $800, the fact that McDonald's coffee was served about twenty degrees higher than what was standard in the trade, the seven hundred claims against McDonald's for similar complaints, the company's indifferent response but eventual payment of nearly three quarters of a million dollars to settle such claims; the reduction of compensatory damages (from $200,000 to $160,000) because of the plaintiff's comparative fault (20%); or the reduction by the trial judge of the $2.7 million punitive damage award to $480,000 (three times the compensatory damages), after which the parties reached a confidential settlement. What is the rule that Ted proposes for this case, which he describes as an "outlier" and "ludicrous"? Is it to return to contributory negligence and dismiss the claim, and if so, at what point in the litigation process, at the pleading stage or on summary judgment? Is it that the appellate courts should intervene in the trial judge's oversight and further reduce or eliminate punitive damages and, if so, on what legal basis? Is a legislative rule here necessary, e.g., some temperature limit (or range) for hot coffee, tea, soups, or other food and drink, or can we rely on courts and juries to apply common law principles of tort liability, recognizing that there may be occasional true outliers for which dismissal or summary judgment is appropriate? (For references, see, e.g., Gerald N. Rosenberg, The Impact of Courts on American Life, in The Judicial Branch 295-96 (2005); Lynn Mather, Courts in American Popular Culture, in id. at 243; William Haltom & Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis 7, 236 (2004).)

Gillian Hadfield Professor University of Southern California
MODERATOR

Posted July 10, 2008, 1:05pm

Gillian Hadfield: 

The ‘hot coffee’ discussion demonstrates a least one potential pitfall that may hamper efforts to encourage judges to act more proactively in reigning in the burgeoning costs, delays and unpredictability of civil litigation. As the exchange of posts suggests, there are substantially different views on the merits of this case, despite the fact that it is a case that was fully adjudicated through post-trial adjustment of a jury award. If control over process, however, is seen as driven by judgment on the merits of substantive law—many critics of ADR and settlement, for example, such as Judith Resnik and Owen Fiss have argued that efforts to shift the form of resolution outside of the courts is part of an overall effort to reduce substantive rights by limiting access to courts—then it’s hard to get to a reasonable, relatively non-ideological position across the judiciary on the question of how to get runaway processes (not runaway substantive legal rules) under control. Heading down this path seems to me to put us at risk of replicating the first judicial activism debate, in which people’s views about how actively judges should interpret the constitution is seen by many to be driven mostly by views on the underlying merits of the result.
So, is this possible: to pursue suggestions to develop rules, attempt to change local legal culture and judicial norms and seek appellate guidance on issues of reducing the quantity of discovery or deference to party control over process in individual cases without adopting positions on the merits? Or is the effort to control process irretrievably linked to disagreements on the substantive merits about the scope of tort law or civil rights?

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

Posted July 10, 2008, 2:09pm

Alan Morrison: 

Responding to the last part of Gillian's most recent post, I do think it is possible to develop neutral rules outside the context of specific substantive outcomes. One reason that our system of checks and balances is more or less in balance is that the Framers did not know in which branch of government they would be serving and so devised a system that was fair to all. Interestingly, in the 1930s, when the rules of civil procedure were developed, and continuing on until fairly recently, in most cases, large institutions were defendants and rarely ever plaintiffs, which is not true today. I am not saying that the rules are always neutral as between plaintiffs and defendants, but only that our best hope for neutrality is to have both substantive and procedural rules created outside of specific and inevitably limiting facts in a given case. Of course, how those rules are applied will be their true test, but if we are to be a nation of laws, then we should design generally applicable rules and hope we get it right. And to return to Heller, my main objection to the second part of the case is that the Court refused to tell us the standard of review (unlike almost every other recent constitutional case where that is always the first question), it announced the result (DC loses), and then confidently said that some other laws were OK, but with no hint of why those and not others. Rather lawless I would say, but then I am a little biased on that case.

Theodore H. Frank Founder and Rresident Center for Class Action Fairness

Posted July 10, 2008, 2:24pm

Theodore H. Frank: 

When a case rejects the precedent of a dozen courts against it and comes up with unprecedented liability, is that something other than an outlier?

The only urban legend about the hot coffee case is the one propounded by the trial lawyer lobby that Michael Traynor (and his academic cites) repeat. McDonald's sold hot coffee at a temperature below that recommended by coffee experts for optimal flavor, and at a temperature below that served by Starbucks today. Stella Liebeck spilled coffee on herself, and sat in the resulting puddle of hot liquid for ninety seconds as her cotton sweatpants held the liquid against her elderly skin. She suffered very real injuries, but that's hardly a reason to hold McDonald's liable any more than I can sue a knife or bagel manufacturer for injuries for cutting myself trying to slice open a bagel–even though both knife and bagel manufacturers know (or should know) of hundreds of such injuries from previous bagel accidents.

"What is the rule that Ted proposes for this case?" asks Michael. Simple: the same one the previous dozen hot-coffee cases (and later cases such as Bogle v. McDonald's and McMahon v. Bunn-O-Matic) propounded: there is no prima facie case of product liability against a manufacturer selling hot coffee because reasonable consumers understand that coffee is hot. Were these other dozen-plus courts wrong? (And Stella Liebeck's cup even contained a warning! The jury second-guessed it and decided the warning wasn't big enough.) Why is the fact that McDonald's was not willing to pay $20,000 for an injury for which it held no legal responsibility at all damning?

The lawsuit was absurd, the judge's letting it go to the jury was absurd, and the issuance of punitive damages by the jury was an appalling injustice. Yet if one wants to know the problems of the legal culture today, and why the trends are in the wrong direction, look at the fact that the president emeritus of the American Law Institute is defending the epitome of tort-law abuse as aspirational rather than an outlier--even though such liability contradicts the ALI's own standards. See American Law Institute, Restatement of Torts: Products Liability § 2 comment j (Proposed Final Draft 1997).

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

Posted July 10, 2008, 2:29pm

Michael Traynor: 

A skillful and respected trial judge, without imposing a heavy managerial hand, but applying a light but involved and intelligent touch, can facilitate the sequencing and decision of dispositive or critical motions, the discovery needed (which might be in phases), potential settlement (using mediators or settlement judges as appropriate), and planning the scope and scheduling of the trial when that becomes necessary. Perhaps there are empirical studies and "best practices" compilations that are or could be relevant. Parties and their counsel may be concerned, for example, if the judge lacks relevant commercial experience, judgment, and temperament or whose prior experience has primarily been as a prosecutor, magistrate, or commissioner. Hence the push in many complex and commercial cases for ADR and the attendant ability to select the arbitrator or mediator, schedule the case, and obtain privacy. Hence also the removal from public courts of cases that would be interesting and challenging for the best judges and judicial candidates. Judicial selection is a critical piece of the puzzle along with public education about the judicial function.

Philip Howard Chair Common Good

Posted July 10, 2008, 3:12pm

Philip Howard: 

I'd like to second Alan's suggestion that there are principles that transcend differing views on the merits. That principle for me, as stated earlier, is this: judges should make rulings on claims that affect broader social relations.

I once debated the McDonald's hot coffee judge (on Oprah), and he believed that it wasn't his role to draw lines of whether a claim was justiciable. As he put it to me during a break, "Who am I to judge?"

That's the wrong principle in my view.

Mark Geistfeld Sheila Lubetsky Birnbaum Professor of Civil Litigation New York University School of Law

Posted July 10, 2008, 3:23pm

Mark Geistfeld: 

In the area of tort law, judges have been quite influenced by public perceptions of excessive tort liability, at least as reported in the media or publicized by tort reformers. For example, see Theodore Eisenberg and James Henderson, “Inside the Quiet Revolution in Products Liability,” 39 UCLA L. Rev. 731 (1992). Media reporting, of course, is not neutral, as reflected in the exchange about the McDonald’s hot-coffee case. That particular case does not illustrate a tort system gone awry, but instead shows the perils of case-by-case adjudication when the outcome of a particular case affects thousands of similarly situated right holders (consumers). On the facts of the case, the jury appropriately awarded punitive damages. The posting by Michael Traynor provides part of the story, but the real reason lies in the nature of the evidence before the courts. The defendant admitted that the coffee as sold was unfit for human consumption, and it did not contradict the plaintiff’s evidence showing that the coffee was sold at a significantly higher temperature than the industry average without a compelling reason. Coffee sold at that temperature burns the skin much more quickly than the ordinary consumer expects, as reflected in the numerous complaints McDonald’s had previously received. None of this was in the initial media reports, although the true facts later emerged in a few stories. The McMahon case, cited in the posting by Ted Frank, was based on different evidence, the most pertinent of which was gathered by Judge Frank Easterbrook on his own initiative. The McDonald’s case was an outlier, but only because it turned on the evidence adduced by the parties rather than a more complete evidentiary record like that in McMahon. Mistakes based on limited evidence are inevitable, but especially regrettable in these kinds of cases because the industry understandably responds to the first case, particularly when punitive damages are levied.

Theodore H. Frank Founder and Rresident Center for Class Action Fairness

Posted July 10, 2008, 4:15pm

Theodore H. Frank: 

Media reporting is not neutral, but that hardly benefits the cause of tort reform. Media-promoted urban legends that the Ford Pinto was unusually dangerous for a car of its size or that Audis had a "sudden acceleration" problem have had far more effect on public policy than any public misunderstandings about the McDonald's coffee case—and the trial bar has done more than its fair share of spreading misunderstandings about the McDonald's coffee case. And I have yet to see the legal thriller in print or the movies where the corporate defense counsel ethically defending an innocent client against an unfair accusation in a mass-tort case is the good guy.

Professor Geistfeld puts his finger on a critical issue: case-by-case adjudication is frequently based on misleading evidence. Indeed, it is considered within the bounds of zealous advocacy to attempt to mislead a jury into coming to the wrong result by tricking a deponent into making an untrue admission or suggesting in a closing argument that a defendant expert's technical discussion of "statistical insignificance" is evidence of corporate callousness or, as Mark Lanier did in a Vioxx trial, hinting to jurors that a big verdict will get them on television with Oprah. Such shenanigans make good TV courtroom dramas or for watching Donald Trump pick The Apprentice. But it's not so good for getting results. Public policy by game-show is worse than any legislative sausage-making, and a reason not to entrust as much as we do to the judicial system without substantial changes in the legal culture.

The courts have some control over this. Cases such as Daubert have resulted in improvements at the margin, and one can be encouraged by opinions like that of the Ohio Supreme Court in Harris v. Mt. Sinai Hospital, where the court singled out the abusive trial tactics that led to a $30 million verdict. But I am still dumbfounded that it is black-letter law that a court that holds that a jury's damages verdict was so subject to "passion and prejudice" that remittitur is required, will hold that same impassioned jury's liability determination is entitled to deference.

Gillian Hadfield Professor University of Southern California
CLOSING STATEMENT

Posted July 10, 2008, 5:30pm

Gillian Hadfield: 

I want to thank everyone for a lively and very productive exchange on the question of the role of courts in making social policy. I think we managed to put on the agenda the question of how the process of litigation itself makes policy—and perhaps leads to a mismatch between the substantive values embedded in the law about what is reasonable and lawful and the effective policy and values that end up reflected in behavior when concerns about litigation risk, delay and unpredictability are taken into account. The conventional judicial activism question has largely focused, as we recognized, on the substantive judgments courts reach, particularly in constitutional cases, and it is difficult to disentangle that question from political differences on the merits about the appropriate role of government. But the more subtle question we have raised, about how activist judges should be in taking responsibility for getting runaway processes under control seems to me to be very important and far more promising. As we saw, even this question may take us into substantive disagreement on the merits—reducing process is good if you think the underlying legal rights people are seeking to access are out of line in the first place, expanding it is good if you think legal rights are already too narrowly circumscribed—but there seems to be some hope for disentangling to some extent an across the board effort to bring process more in line with the values reflected in substantive law. I come away from the discussion, at least, with a sense that next steps involve increased attention to empirical work on what factors can affect the capacity of judges to shift their stance on deference to party control of process ("what makes rocket dockets work?"); to the potential for judicial education programs to explore shifting judicial culture and norms in the same way that the ADR revolution 25 years ago created a substantial shift in perceptions about the proper role of a judge; the role for rule changes and private efforts to develop standards and principles to guide judicial efforts to control process more; and perhaps some revisiting of whether we are facing the issues of process now because, paradoxically, judges made such a shift towards the social policy goal of reducing trials and promoting settlement that the other policy goals implicated by process, such as predictability and implementation of the substantive values reflected in underlying law, were overshadowed. I'm looking forward to an ongoing conversation on all these topics!

Participating

Walter E. Dellinger III O'Melveny & Meyers
Ken Feinberg The Feinberg Group
Theodore H. Frank Center for Class Action Fairness
Mark Geistfeld New York University School of Law
Gillian Hadfield University of Southern California
Lord Leonard Hoffmann Appellate Committee of the House of Lords
Philip Howard Common Good
Robert Joffe Cravath, Swaine & Moore LLP
Judge Edith H. Jones United States Court of Appeals for the Fifth Circuit
Alan Morrison Fair Elections Legal Network
David Schoenbrod New York Law School
Peter H. Schuck Yale University
Stuart Taylor National Journal
Michael Traynor American Law Institute
Russell Wheeler The Brookings Institution

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Reader Comments

"Judicial activism" is not mere synonym for "adverse decision making," except in the view of biased academics. Its outcome can have empirical quantification.

Scalia led the dismantling of sentencing guidelines, over a series of five or more decisions. Now, cities endure the Scalia Bounce in murder rates, and immediately, not after a decade. While, most sentences remain within the guidelines, the decisions may have invisible effects. They may have unpredictably influenced plea offerings, downward. Now, murderous predators roam the streets.

As the sun rises in the East, as the Guidelines cut the violent crime rate in half in the 1990's, Scalia could foresee this effect. The taking of the excess murder victims represents a type of judge malpractice per se, by its unauthorized human experimentation.

It caused a bad result. Now Congress must address the lethality of this unauthorized law making.

The idea of judicial review was a usurpation suggested by Coke. Marbury v Madison contained so many illegalities, it should be void, not voidable. Now only an Amendment can stop its damage.

http://supremacyclaus.blogspot.com/2007/06/marburygate-or-misconduct-in-marbury-v.html

Its first application was the Dred Scott decision. The latter set off a Civil War that killed 600,000, not 6000, as the Scalia Bounce did.

The track record of judicial review is not good.

-- Supremacy Claus

It's not clear to me at all that use of the term "judicial activism" "bespeaks little more than that the speaker dislikes the opinion," as Peter claims. While it is used to describe a variety of behaviors of the court, sometimes in unclear and less than rigorous ways, judicial activism, it seems to me, is useful in describing situations where a court does not merely determine whether a law is constitutionally valid (what seems to me a passive role, though a role nonetheless, in setting policy) but goes further and chooses to assume an active role in actually creating and dictating what policy and the law should be. I think there is a valid distinction here and the term is useful in describing the posture of the court and the degree to which it dictates what the proper policy or law should be. As such, it seems like this concept would, in fact, be central in any discussion attempting to answer: What is the role of the courts in making social policy? Does this seem valid or is my thinking muddled?

-- lex1

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Reader Comments (8)

Add Yours
1. July 8, 2008 10:37 AM

All lawmaking is human experimentation. It requires testing for safety and effectiveness in pilot, small jurisdictions. If effective, test again in a larger jurisdiction. The legislatures fail to appreciate that, to test their rules for unintended consequences, and even to subject themselves to the same regulations good enough for everyone else. An unstated principle of human experimentation is whether the experimenter would subject himself to the experiment. Lawmakers exempt themselves from many of the rules they make for others, including a host of self-dealt unjust immunities. This is a hard task for a legislature, which has the tools and funding to carry out the testing. The courts have neither the competence nor the authority in the Constitution to make new law. What is the result of these violations of the Nuremberg Principles on Human Experimentation? Utter failure in every self-stated goal of every law subject. Why? Because new law made by judges is law made by careless, oblivious amateurs, who do not test their decisions before imposing them on the public.

-- Supremacy Claus
2. July 8, 2008 11:39 AM

With respect to Chief Judge Jones' comments about globalism: As someone who lost his job in 2000 due to outsourcing, I am keenly aware of our need to be competitive in a global market. But do we really want judges making decisions based upon concerns of global competitiveness? To use the Chief Judge's environmental example, is it a "good" thing if a judge is hesitant to hold a U.S. company liable under our environmental laws out of fears that company will simply close up shop here and move to a country with weaker laws? Even if applying a law correctly will lead to harsh economic consequences, I believe a judge must choose to do so, for it should be the legislature that decides how to strike a balance between the competing interests of competition and regulation.

-- Justinian Lane
3. July 8, 2008 1:15 PM

Mr. Morrison is right on when he says that people who use the phrase "judicial activist" (and here I will collect a nickel from myself for using those words in a sentence!) mean an opinion that supposedly overturns the will of the people.

"We're all populists now," but society needs to keep the danger of tyranny of the majority in mind and at bay.

-- Anne
4. July 8, 2008 2:58 PM

"Judicial activism" is not mere synonym for "adverse decision making," except in the view of biased academics. Its outcome can have empirical quantification.

Scalia led the dismantling of sentencing guidelines, over a series of five or more decisions. Now, cities endure the Scalia Bounce in murder rates, and immediately, not after a decade. While, most sentences remain within the guidelines, the decisions may have invisible effects. They may have unpredictably influenced plea offerings, downward. Now, murderous predators roam the streets.

As the sun rises in the East, as the Guidelines cut the violent crime rate in half in the 1990's, Scalia could foresee this effect. The taking of the excess murder victims represents a type of judge malpractice per se, by its unauthorized human experimentation.

It caused a bad result. Now Congress must address the lethality of this unauthorized law making.

The idea of judicial review was a usurpation suggested by Coke. Marbury v Madison contained so many illegalities, it should be void, not voidable. Now only an Amendment can stop its damage.

http://supremacyclaus.blogspot.com/2007/06/marburygate-or-misconduct-in-marbury-v.html

Its first application was the Dred Scott decision. The latter set off a Civil War that killed 600,000, not 6000, as the Scalia Bounce did.

The track record of judicial review is not good.

-- Supremacy Claus
5. July 8, 2008 7:48 PM

It's not clear to me at all that use of the term "judicial activism" "bespeaks little more than that the speaker dislikes the opinion," as Peter claims. While it is used to describe a variety of behaviors of the court, sometimes in unclear and less than rigorous ways, judicial activism, it seems to me, is useful in describing situations where a court does not merely determine whether a law is constitutionally valid (what seems to me a passive role, though a role nonetheless, in setting policy) but goes further and chooses to assume an active role in actually creating and dictating what policy and the law should be. I think there is a valid distinction here and the term is useful in describing the posture of the court and the degree to which it dictates what the proper policy or law should be. As such, it seems like this concept would, in fact, be central in any discussion attempting to answer: What is the role of the courts in making social policy? Does this seem valid or is my thinking muddled?

-- lex1
6. July 8, 2008 7:50 PM

The discussion thus far seems unfocused. The question "What is the role of the courts in making social policy?" seems suited for two separate lines of inquiry: a positive line where past actions of the court are examined with respect to their actual impact on social policy, and a normative line where the court as an institution is examined in comparison with other institutions as a vehicle and mechanism for creating policy. This normative line inevitably rests, to some degree, on one's interpretation of our Constitution, but it need not be limited to that. Will one of the participants go out on a limb and actually articulate a concrete position here? It seems as though the central issue is being avoided. I don't dispute Judge Jones' claim that focusing on constitutional adjudication will end in disarray, but I would rather see disarray than a discussion that politely avoids the heart of the issue altogether. What is the role of the courts in making social policy? How does the proper role of the courts differ from current behavior and what are the consequences, both positive and negative? What reforms, if any, might be implemented to change the role of the courts in making social policy?

-- lex1
7. July 9, 2008 3:29 PM

From out here among the great unwashed, let me say that this is a super conversation. It's always an occasion worth paying attention to when eminent folks from this wide an array of perspectives got together for a public conversation.

It strikes me that these conversations are almost always a bit like the old saw about the blind men and the elephant. Given the state of our knowledge of how the litigation system works, how could it be otherwise? Fifteen years ago, Michael Saks published an article in the University of Pennsylvania Law Review titled, Do We Really Know Anything About the Behavior of the Tort Litigation System—And Why Not? I often find myself thinking about this article because in many ways we still don't know much about the litigation system. This is why the kinds of empirical investigations suggested by Philip and others are so important. But think how hard it is to gather the kind of information we would need to make wise assessments of the litigation system! The virtues of our decentralized system of litigation are many. But it has costs, too, and one of the costs is the non-transparency of privately-directed litigation.

One way to begin would be to call for a new generation of the kinds of empirical studies that Deborah Hensler and her colleagues published back almost two decades ago now. Another thing to do would be to follow the injunction of Don Dewees, David Duff, and Michael Trebelcock in their important book, EXPLORING THE DOMAIN OF ACCIDENT LAW. Dewees et al persuasively show that we’ve got to separate out different areas of litigation if we want to make any sense of the kind of problems that are under discussion here. If tort law is broken on the country’s playgrounds and in its operating rooms, it may or may not be broken on the nation's highways and sidewalks. Individual employment discrimination cases pose different kinds of problems from blockbuster securities litigation–and they almost certainly require different kinds of analysis. The point here is that generalization in these areas is often at odds with making sense of the different parts of the litigation beast. Maybe we need to study trunks or tusks before we get to the whole elephant!

Note that if I’m right this has important implications for Gillian's most recent comment: how likely is it that judges will be in a position to have the kinds of information needed to be more aggressive in their management of cases? In the most complex of these cases, the parties are incredibly sophisticated folks who can throw enormous resources at the litigation. (It may be that one of the most important developments in the last fifty years of American litigation is the development of a highly sophisticated plaintiffs' bar.) And even in the relatively simple cases–the one-off see-saw cases, for example–how easy is it for judges to do the kinds of cost-benefit balancing Mark suggests they can do? Perhaps we’d be better off with seat-of-the-pants judicial decisionmaking. But for now we can’t hope for much more than that.

-- John Fabian Witt
8. July 9, 2008 4:54 PM

I agree with my old law school chum John that this is a fascinating discussion. And I share his, and Gillian's, skepticism that American judges are well-equipped to engage in civil-law-style active case management for complex cases. While it's possible to envision more active judging fixing our litigation problems, it's also very possible to envision the inverse, and court management of mass tort dockets (outside Judge Jack's notable exception) gives me pause. I think Ted and Judge Jones are right: the answer lies in looking at the legal rules. What if, as Judge Jones suggests, we simply eliminated much of what we know as discovery and went to a European model? The results would be profound. John's comment vis-a-vis complex litigation is also right: both sides in these cases are sophisticated, and they drive the litigation. They're also smart enough to respond to incentives and do basic net present value calculations. Note that one of the reasons why expensive discovery requests exist is that in our system the demanding party (typically, the plaintiff) doesn't have to internalize any of the discovery costs but merely shifts them to the other party. Unless the judge throws out the case in the first instance, expensive discovery requests add to the settlement value of any case, no matter how weak. But what if we reversed the anomolous "American rule" and went to a two-way fee-shifting rule? Would plaintiffs think differently about onerous discovery requests? And would the playgrounds still get rid of their swing sets if the playground owners knew they could get reimbursed for legal expenses in the event of a nuisance suit? Indeed, might not those very nuisance suits dry up? General jurisdiction lower court judges in our adversarial system can only do so much. Changing the rules of the system can do a lot.

-- James R. Copland