Civil Procedure
Privilege Review
Editor's Note: This is the fourth of seven installments on the electronic discovery rules. To view an index of the installments, click here. One of the areas to be discussed in the Rule 26(f) meet-and-confer is whether the parties can agree on a procedure for asserting claims of attorney-client privilege or work-product protection after production. The amended Rule encourages parties to consider whether they can agree to nonwaiver agreements such as “quick peeks,” which would permit production before a full-blown, expensive, time-consuming privilege review. These and similar protocols are not new but are newly important, given the volume, nature, and variety of such information. These characteristics of electronically stored information both increase the costs and burdens of already expensive and slow preproduction privilege reviews and the likelihood of inadvertent disclosures even when the responding party conducts a full blown review.
Not Reasonably Accessible Information and Allocating Discovery Costs
Editor's Note: This is the third of seven installments on the electronic discovery rules. To view an index of the installments, click here. A recurring problem in electronic discovery involves information stored on sources that are not reasonably accessible. Amended Rule 26(b)(2)(B) is designed to address this problem with a two-tiered solution. In the first tier, a party must provide discovery of relevant, nonprivileged, reasonably accessible, electronically stored information without a court order. In the second tier, however, a party need only identify sources of electronically stored information that are not reasonably accessible. Information stored on such sources may be discoverable, but only if the requesting party can show good cause for a court to order production.
Meeting and Conferring
Editor's Note: This is the second of seven installments on the electronic discovery rules. To view an index of the installments, click here. The new amendments that provoked the least controversy, the expansion of the meet-and-confer under Rule 26(f) and the initial conference with the court under Rule 16, may turn out to be the most important. The amended meet and confer requirements serve crucial purposes: to identify potential problems early in litigation and to establish workable electronic discovery protocols. Courts are already expecting parties to come to the meet-and-confer prepared to discuss the details of electronic discovery and can be demanding in what they require counsel to know. One judge described the obligations under new Rule 26(f) as follows:
Sentencing Organizations After Booker
In United States v. Booker, the Supreme Court held that courts violate individuals' right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines. The Supreme Court, however, has never decided exactly when organizations are entitled to a criminal jury. Accordingly, Booker's full implications for the organizational sentencing guidelines are not immediately clear. Nonetheless, a careful reading of the law suggests that organizations are entitled to a jury in at least most federal criminal cases and thus that Booker's logic should apply to the organizational guidelines.
A Few Thoughts on Electronic Discovery After December 1, 2006
Editor's Note: On December 1, 2006, electronic discovery amendments to the Federal Rules of Civil Procedure go into effect. In this seven-part series, Judge Lee H. Rosenthal, chair of the Judicial Conference's Advisory Committee on Civil Rules, offers an introduction to the new amendments and describes challenges they present for lawyers, litigants, and judges. The last time the Federal Rules of Civil Procedure were amended to acknowledge computers was 1970, when the words “data and data compilations” were added to Rule 34. Thirty-six years later, long after the computer has become both ubiquitous and essential, it is time to do much more. On December 1, amendments will go into effect to make the discovery rules better able to accommodate the vast changes in information technology that have already occurred and that will inevitably continue. The need for the guidance the e-discovery rule amendments provide is reflected in the fact that courts have been applying the new rules since they were proposed, years before their effective date. Because the amendments have to be flexible enough to apply to all federal cases that could involve electronic discovery and general enough to accommodate the inevitable changes in information technology, there are a number of issues the new rules do not address. Instead, the rules present procedures and guidelines targeted at the distinctive features of electronically stored information, to help resolve those issues when they arise. In this seven-part series, I discuss a few issues likely to arise under the new rules and the challenges they may present, not only for lawyers and litigants, but for judges. Installment 1: An Overview of the E-Discovery Rules Amendments Installment 2: Meeting and Conferring Installment 3: Not Reasonably Accessible Information and Allocating Discovery Costs Installment 4: Privilege Review Installment 5: Metadata and Issues Relating to the Form of Production Installment 6: Sanctions Installment 7: Conclusion
An Overview of the E-Discovery Rules Amendments
Editor's Note: This is the first of seven installments on the electronic discovery rules. To view an index of the installments, click here. The electronic discovery amendments are an interrelated package. The amendments address five broad areas: (1) the parties’ obligations to meet and confer about electronic discovery early in litigation; (2) discovery of information that is not reasonably accessible and allocating costs of that discovery; (3) privilege review; (4) form of production; and (5) sanctions. An overarching change is the introduction of the term “electronically stored information” to the rules. This new term describes a distinct category of information subject to discovery rights and obligations, in addition to “documents” and “things.” The word “documents” no longer has to be distorted to accommodate the myriad ways in which computers create and store information, many bearing no resemblance to words fixed on pieces of paper. The amendments distinguish documents from electronically stored information because the categories are different in ways important to managing discovery. The distinction allowed the rules drafters to write provisions specifically addressing electronic discovery.
BlackBerry Users Unite! Expanding the Consumer Class Action To Include a Class Defense
116 Yale L.J. 217 (2006)
Should the Criminal Defendant Be Assigned a Seat in Court?
115 Yale L.J. 2203 (2006) In this Comment I question the U.S. Attorney's claim that every criminal defendant should be required to sit at the table farthest from the jury. Courtroom seating is properly within a trial judge's discretion, and there are good reasons for seating some criminal defendants far from the jury. Yet there are also persuasive arguments, grounded in history and precedent, for why a trial judge should allow a well-behaved criminal defendant to choose for himself where he will sit. In Part I, I suggest that the criminal defendant's autonomy to choose his seat is an important aspect of the American courtroom tradition. In Part II, I argue that the defendant's well-established freedom to control some aspects of his appearance before the jury--by wearing civilian clothes rather than prison garb, for example--implies a freedom to choose the place of his appearance as well. Part III addresses the government's response to Ramsey's letter.
The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade
115 Yale L.J. 1122 (2006) Drawing on archival sources, this Note explores an early experiment in humanitarian intervention undertaken by the Court of Vice Admiralty at Sierra Leone through the suppression of the West African slave trade during the early decades of the nineteenth century. Part I discusses the social and geopolitical pressures that helped British abolitionists realize their hopes of creating a free colony in Africa. Part II demonstrates the manner in which Robert Thorpe, Chief Judge of the Court of Vice Admiralty at Sierra Leone, enforced Britain's 1807 Act for the Abolition of the Slave Trade against British and foreign traders alike. Part III argues that Thorpe's court, in conjunction with aggressive interdictions by the British Navy and privateers, forced Europe's great slaving powers to the negotiating table and secured their abandonment of the slave trade through the creation of multilateral institutions equipped to adjudicate captured slave ships. This Part also discusses the Le Louis case, which demonstrated the impact of Thorpe's court on the legal regime governing free navigation. Part IV then analyzes the relevance of Thorpe's experiment in humanitarian intervention to current interdiction efforts undertaken by the Proliferation Security Initiative.
Limiting Coercive Speech in Class Actions
114 Yale L.J. 1953 (2005) Courts once routinely banned communications of named parties and their counsel with potential class members, until the Supreme Court, in Gulf Oil Co. v. Bernard, called for "specific findings" and a "weighing of interests" before the imposition of such bans. Most courts have interpreted the opinion to require evidence that inappropriate communications have already occurred before imposing limitations. This Note argues that Bernard can and should be interpreted differently. Specifically, it recommends that courts issue prophylactic restrictions when a structurally coercive relationship, such as employer-employee, exists between defendants and potential class members.
Gideon in White/Gideon in Black: Race and Identity in Lawyering
114 Yale L.J. 1459 (2005) Traditionally, poverty lawyers, criminal defenders, and clinical teachers have overlooked John Hart Ely's theory of judicial review in teaching the lawyering process and in representing impoverished clients and their communities. But the egalitarian themes of Ely's work on judicial review, reflected in his early contribution to Gideon v. Wainwright and his service as a public defender, resonate deeply with the practice of lawyering for the poor and the disenfranchised. Indeed, Ely saw the good lawyer as mindful of racially motivated inequality and unequal access in both law and politics. Nonetheless, situated within the advocacy traditions of liberal legalism, his vision of lawyering defined race consciousness and racial equality narrowly, eschewing the notion of race-contingent identity and community as dignity-based process values linked to cultural, social, and political standing. Although constrained by legal process considerations of lawyer role, institutional function, and political legitimacy, Ely's defense of minority equality rights and political access norms can be read to extend the reach of liberal lawyering by supporting antisubordination axioms of democratic empowerment and minority collaboration. Ely's fusion of democracy and equality in legal process bridges constitutional theory and clinical practice to offer an enriching vision of progressive lawyering in impoverished, crime-ridden communities.
More Equal than Others: Defending Property-Contract Parity in Bankruptcy
114 Yale L.J. 1099 (2005) Contracts create property; contractual rights and obligations are property. In bankruptcy, however, this aspect of nonbankruptcy law is often not recognized. This Note argues that bankruptcy law and policy should recognize the property in contract. This Note examines instances of inconsistency within the Bankruptcy Code and in bankruptcy courts' holdings to demonstrate how the acceptance of property-contract parity would lead to greater efficiency in prebankruptcy contracting, a stronger policy foundation for bankruptcy law, greater protection for valid party expectations, and less inequity between interested parties in bankruptcy proceedings.
Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?
114 Yale L.J. 929 (2005) The duty of loyalty requires a trustee to administer the trust solely in the interest of the beneficiaries. Any transaction in which the trustee has an actual or potential interest violates the sole interest rule, no matter how beneficial the transaction to the beneficiaries. This Article develops the view that a transaction should not give rise to liability merely because the trustee also benefits. Sometimes beneficiaries are better off when a transaction also benefits the trustee. Corporation law has wholly abandoned the sole interest rule, preferring a rule that permits a conflicted transaction that satisfies disclosure and fairness standards. Important changes have been undermining the trust law sole interest rule. The grievous procedural inadequacies of the equity courts that gave rise to the rule have now been overcome. The rise of professional trusteeship has required that the sole interest rule be abridged to permit trustee compensation. As trusteeship has increasingly become a branch of the financial services industry, major exceptions to the sole interest rule have been recognized to facilitate trustee-provided financial services. The rationale for these exceptions is that they benefit trust beneficiaries by promoting integration of functions and economies of scale. This Article contends that the exceptions are wiser than the rule they modify. The duty of loyalty should be reformulated to prefer the best interest rather than the sole interest of the beneficiary. A conflicted transaction should continue to be presumed to violate the duty of loyalty, but rebuttably, not conclusively. The trustee should be allowed the defense that the transaction was in the best interest of the beneficiaries.
The Character of Discrimination Law: The Incompatibility of Rule 404 and Employment Discrimination Suits
114 Yale L.J. 1063 (2005) Disregarding the dictates of Federal Rule of Evidence 404, plaintiffs in discrimination suits routinely prevail on the basis of propensity proofs. Yet neither the parties nor the courts are to blame for these rampant violations. It is, instead, the dearth of evidence available to many discrimination plaintiffs that compels defiance of the ban. Courts therefore face two options: apply the Rule in an incoherent and disruptive manner, or consistently enforce it and effectively preclude these suits. Legislators should recognize the harmful effects of this incompatibility in the law and undertake efforts to reform this notoriously problematic Rule.
On the Alienability of Legal Claims
114 Yale L.J. 697 (2005) Courts have become increasingly skeptical of rules restricting plaintiffs' ability to sell legal claims, while legal commentators have argued that markets for claims would be economically beneficial, moving claims to those who can prosecute them most efficiently. Claim sales intuitively might appear to present a clash of economic and philosophical arguments, with perceived efficiency benefits coming at the expense of societal commitments to values other than efficiency. In this Article, Professor Abramowicz argues that economic and philosophical arguments do point in opposite directions, but not as one might expect. A range of philosophical and other noneconomic considerations, such as concerns about commodification, corrective justice, legal ethics, and procedural justice, pose no significant problems for claim sales. There is, however, a significant economic problem. Markets for legal claims face a particularly strong adverse selection effect, because a prospective purchaser must consider not only why the plaintiff wishes to dispose of the claim, but also why the plaintiff cannot obtain a better deal from the defendant. Thus, even a regime permitting alienation might result in very few claim sales, and many of those might be motivated by prospective inefficiencies, such as attempts to manipulate the path of legal doctrine. Using a hypothetical mandatory-alienation regime as a heuristic device, this Article shows that if claim sales became the norm, these economic concerns would be largely eliminated. Philosophical concerns, though, might reemerge.
Juries and Race in the Nineteenth Century
113 Yale L.J. 895 (2004) The Supreme Court's jurisprudence on criminal juries has overlooked an important piece of history. This is most notable in the context of its jury discrimination jurisprudence over the past twenty years. In Batson v. Kentucky, the Court held that the Equal Protection Clause prohibits a prosecutor from using his peremptory strikes against a potential juror on the basis of race. Later, the Court extended Batson to a variety of related contexts. In Powers v. Ohio, the Court held that Batson applied even when the defendant and the juror were of different races, holding that a white defendant could challenge the discriminatory striking of black jurors. The Equal Protection Clause prohibits discrimination only by state actors, but in Edmonson v. Leesville Concrete Co., the Court held that private civil litigants were to be regarded as state actors when they used their peremptory strikes. The Court went one step further in Georgia v. McCollum, holding that even criminal defendants were state actors when exercising peremptories. These cases prompted disagreement among the Justices on important questions, including whether a juror's race might influence his view of a case. In Powers, Justice Kennedy flatly rejected such a notion, arguing that to accept it would be to recognize "the very stereotype the law condemns." His conclusion in Edmonson was similarly resounding: Our "progress as a multiracial democracy" mandates that litigants "satisfy themselves of a jury's impartiality without using skin color as a test." While Kennedy's position has consistently held a majority of the Court, Justice O'Connor has taken the opposite view: "We ought not delude ourselves that the deep faith that race should never be relevant has completely triumphed over the painful social reality that, sometimes, it may be." Also in dispute has been the question of whose rights are violated by discriminatory jury selection. The prevailing view, again pressed most vigorously by Justice Kennedy, is that there are three harms: to the defendant, to the excluded juror, and to the community at large. This rationale has allowed the Court to extend Batson to all parties in all trials, because whenever a litigant uses a discriminatory strike, somebody is harmed. Again, this view has been challenged, with Justices O'Connor, Scalia, and Thomas arguing that only criminal defendants were meant to be protected by the rule against discriminatory strikes. In McCollum, for example, Thomas wrote that prohibiting a defendant from using race-based peremptory strikes "exalted the right of citizens to sit on juries over the rights of the criminal defendant, even though it is the defendant, not the jurors, who faces imprisonment or even death." On its face, this line of cases evokes the legacy of Reconstruction, when racial inclusiveness on juries was a major constitutional and legislative issue. In deciding these cases, however, the Court has rarely examined debates from that period. This Essay attempts to provide what is missing from the Court's jury discrimination decisions: a discussion of how various parties during the antebellum and Reconstruction eras thought about juries, and especially how they thought about juries and race. In Part II, I focus on the abolitionists' views of the jury. I suggest that while the Court has traditionally recognized the primacy of juries to the political philosophy of the colonial era, juries became even more important during the abolitionist movement. Specifically, the abolitionists' struggle against fugitive slave laws deepened their commitment to jury trial--a commitment that had existed in some form since colonial times. The abolitionists' struggle also helped set the stage for developments during the Reconstruction era, the subject of Part III. During Reconstruction, I argue, the abolitionist belief in juries as protectors of liberty came under challenge. After the Civil War, all-white Southern juries refused to indict or convict white defendants accused of crimes against blacks. In response, Reconstruction Republicans did not abandon the jury trial. Instead, they worked to eliminate barriers to black participation in the legal system, with a view toward ultimately securing the right of blacks to serve as jurors. They had come to recognize that the exclusion of blacks from juries made it impossible to achieve justice in Southern courts. But just as important as the abolitionists' decision to end discriminatory jury selection was their reason for doing so. Blacks and Reconstruction Republicans were grappling with many of the issues that divide the Court today. One was the question of whose rights were violated by discriminatory selection. On this point, the historical record yields no single answer--different legislators took differing positions. But a common theme does emerge: The greatest legal injustice of the era was the failure to protect black victims of white violence, and most of the jury arguments were framed with that problem in mind. Consideration of this historical reality would go a long way to resolving the debate presented in McCollum, where the Court struggled over whether white defendants charged with assaulting black victims could use their strikes to remove blacks from the jury. Writing for the Court, Justice Blackmun held that they could not, but in doing so he failed to refer to any of the evidence that protecting black victims from all-white juries was one of Reconstruction's goals. Blackmun's ahistoricism was matched by the revisionism of Justice Thomas, who argued in concurrence that protecting black defendants was the sole goal of Reconstruction. Again, as we shall see, the historical record says otherwise. On another question, the Reconstruction debates provide even greater clarity. Reconstruction Republicans would be quite surprised by the current Court majority's assumption that a juror's race is irrelevant to how that juror is likely to perceive evidence, evaluate witnesses, or make judgments in a case. Reconstruction Republicans' case for racially diverse juries was grounded in the understanding that people's life experiences were significantly influenced by their race, and that these experiences, in turn, often made a difference in how they performed as jurors. So while the current majority believes that eliminating jury discrimination must be predicated on the belief that race is irrelevant, Reconstruction Republicans fought to end jury discrimination because of their contrary belief that race is significant. Accordingly, I conclude by suggesting that if the Court were to give more attention to Reconstruction, it would find a basis for its jury discrimination holdings that is more firmly rooted in history and more consistent with the emerging empirical evidence about race and juries.
Punitive Damages as Societal Damages
113 Yale L.J. 347 (2003) Jury awards of "classwide" punitive damages provide windfalls to individual plaintiffs, particularly in products liability, fraud, civil rights, and employment discrimination cases. This suggests a new angle from which to approach the ongoing punitive damages debate. Under current law, classwide assessment of widespread public harms has proceeded under the rubric of retributive punishment and deterrence--the traditional justifications for punitive damages-- bypassing class action procedural requirements and unjustly enriching the plaintiff. In the wake of the Supreme Court's admonition in State Farm that such a practice can violate due process by exposing defendants to the risk of "multiple punitive damages awards for the same conduct," the Article proposes explicit recognition of a distinct category of compensatory societal damages for redress of third-party and societal harms. Up until now, this category has been quietly subsumed within punitive damages. But damages for specific harms to third parties and more diffuse harms to society are actually compensatory (as opposed to punitive) in nature, and should, once assessed, be distributed by legislatures, courts, and juries accordingly. Drawing upon heretofore unconnected trends in punitive damages and class action tort cases, and state-level legislative and judicial innovations with "split-recovery" schemes for distributing punitive awards, the Article explores various mechanisms for transforming punitive damages into societal damages, including the formation of an "ex post class action" at the remedial stage and the punitivedamages- only class at the liability stage. The theory of compensatory societal damages--whether or not embraced by legislatures and courts--reveals more clearly the tradeoffs in transforming the doctrine of punitive damages to achieve the compensatory and deterrence goals of the tort system.
An Old Judicial Role for a New Litigation Era
113 Yale L.J. 27 (2003) Because litigation has changed so dramatically in the last half century, scholars tend to view contemporary civil procedure as raising new problems that require new solutions. We have overlooked that many of these problems can be explained, and even resolved, using an age-old judicial role. There are two contexts in particular in which scholars have identified problems with judicial practices, but have been unable to agree on solutions. One is pretrial practice, where controversy abounds over the management strategies judges use to cope with overzealous litigants and overcrowded dockets. The other is class action litigation, where debate focuses on judicial review of proposed settlements and the judge's duty to protect absent class members. Although scholars have explored the tradeoffs posed by current practices and proposed reforms in both areas, they have lacked a framework with which to connect these problems or build a consensus for reform. This Article suggests that the framework we need has been available all along. Our best hope of understanding, and ultimately resolving, these controversies lies in a model of judging that prevailed for centuries and was captured by Lon Fuller in the 1950s. Although scholars rarely invoke tradition expressly, their debates over pretrial practice and class action litigation often boil down to a debate over the value and vitality of the traditional judicial role. Fuller identified two core elements of the traditional judicial role: Judges must rely on parties to frame disputes and on legal standards to help them resolve disputes. Scholars have overlooked that judges today sometimes respect these two characteristics and sometimes do not, and that it is precisely where judges stray furthest from tradition--and proceed without the litigant input or legal criteria to which they are accustomed--that judicial conduct triggers controversy. There are powerful reasons why judges should remain faithful to their traditional role even as they update it to respond to new challenges. Judges should do so not for tradition's sake, but rather because their traditional role reflects their core institutional competence, their place in the constitutional structure, and the considered judgment of two centuries of judges who faced problems surprisingly similar to those that judges confront today. This Article explores the institutional, constitutional, and historical underpinnings of the traditional judicial role, highlighting overlooked parallels between the new problems judges face in pretrial practice and class action litigation today and old ones that judges confronted, and largely overcame, in nineteenth-century trial practice and twentieth-century administrative law.
Risk Magnified: Standing Under the Statist Lens
112 Yale L.J. 1633 (2003) Why some harms count before the courts and others do not is a matter of acute expressive and practical impact. Judicial refusal to see claimed injuries is an effective denial of legal personhood and a bar from powerful judicial machinery. The issue of "erratic, even bizarre" judicial recognition of supplicants vexed Professor Joseph Vining as early as 1978. Recent scholarship argues that injuries are seen through a subjective lens, reflecting the relative privilege of the judiciary and their concomitant difficulties in perceiving injuries to minorities and the poor. This is a troubling contention. So long as another, objective explanation remains, it should be superimposed, not to conceal and legitimate potentially problematic practices, but to substitute as an alternative rationality and a neutral and transparent principal for future decisions. This Comment advances such an alternative explanation: The erratic pattern of judicial sight is partly a refraction of how judges view the risk of probabilistic future injury. Present harm is immediately visible, but the contours of risked injury are less distinct, requiring congressional or constitutional magnification. Aspects of positive law aimed at reducing the risk of prescribed probabilistic future harms are telescopes. Such collectively constructed magnifiers, however, often do not track social risk or vulnerability, since some clout is typically necessary to enshrine interests in positive law. As a result, those whose interests are socially slighted may find themselves similarly slighted before the courthouse doors. This Comment proceeds in two Parts. Part I describes how the differential perceptions of risk as injury in City of Los Angeles v. Lyons and Friends of the Earth v. Laidlaw Environmental Services illustrate the rules of risk recognition employed by the judiciary. Part II discusses Central Delta Water Agency v. United States as an example of when risks alleged as harms do not match the risks magnified in law. The Part concludes that, in such cases, the rules of recognition established by Supreme Court cases may be obeyed, and the crushing impact of a no-injury finding avoided by dismissal on timing grounds.
Federal Regulation of State Court Procedures
110 Yale L.J. 947 (2001) May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe a state court's obligation to enforce federal law: A state court enforces federal law as it would the law of a foreign sovereign. Under traditional conflicts principles that precede the Founding of the Union, a forum state has exclusive authority to regulate the procedures by which its courts enforce rights of action before it. It is true that the Supreme Court's doctrine regarding whether state courts must enforce federal claims rejects the conflicts paradigm. But it is equally true that its doctrine regarding the procedures by which state courts enforce federal claims embraces the conflicts paradigm. Applying traditional conflicts principles governing matters of procedure, Congress has no authority to regulate the procedures by which state courts adjudicate state law claims. This understanding of the Constitution has prudential value. Injecting isolated federal rules of procedural into fifty cohesive state procedural codes could create myriad procedural and substantive anomalies. Exclusive state control of state court enforcement of state law rights also serves the traditional normative values of federalism.