Monday’s high court decision in Wal-Mart v. Dukes has predictably drawn a strong reaction from legal academia, much of it critical of the Court. Of particular interest are the comments of Richard Primus (Michigan) at the New York Times‘s “Room for Debate” and Alexandra Lahav (Connecticut) at Mass Tort Litigation Blog. According to Primus and Lahav, the decision is the latest sign that the current Supreme Court leans toward a principle of “individualism” in applying the rules of civil litigation. Lahav in particular appears to view this as a shame, since “a more collectivist view” would carry with it more “potential for social reform.”

What does a term like “individualism” mean in the context of litigation procedure? One of its implications is that legal rights to redress on the one hand, and legal responsibility or culpability on the other, are ordinarily things that appertain to individual litigants, and ought not (absent clear authorization by statute or Constitution) be submerged into group claims on the one hand or group guilt on the other. In particular, we should be wary of proposals to deprive litigants of the choice to obtain individualized consideration of their claims or defenses on the grounds that society can accomplish more if it processes litigation in batches while accepting, say, statistical as distinct from personalized proofs.

Lahav and other scholars such as Samuel Issacharoff offer as examples numerous cases in which the Court has insisted on individualized process, often thereby frustrating the advocates of social reform in one or another area. The Court’s scruples on this matter have run into much adverse comment in the academic literature, and that’s hardly a surprise; as I argue in my book Schools for Misrule, today’s legal academy is far more keen on things like group rights and social engineering (as some of us might call it) than is the wider society.

Let me offer a few observations in defense or at least explanation of the Court’s approach:

1) The individualist leaning is by no means confined to the “conservative” justices; all nine members of the current Court partake of it to varying extents, and it is one major reason why the Court’s liberal justices joined in to make the Wal-Mart decision unanimous on one of its most practically significant issues, relating to the handling of claims for back pay.

2) Like so many other aspects of the Court’s work, this one does not fit well into simplistic accounts from some quarters about the Court’s supposed “pro-business” stance. In many circumstances business defendants actually prefer some degree of collectivization of claims, because their main practical concern is to put an end to litigation, and group resolution can do that. In the Court’s landmark 1997 Amchem Products v. Windsor decision, six of eight voting justices (Breyer and Stevens dissenting in part) struck down a giant batch settlement of asbestos litigation that had been ardently pursued by many of the nation’s biggest businesses, as well as many plaintiff advocates, on the grounds that it improperly denied claimants their right to individualized justice.

3) If the question is one of faithfulness to the constitutional vision of law held by the Founders, there really isn’t much of a question: like other Anglo-Americans of Blackstone’s era those Founders saw the courts as dispensers of individualized justice if they were to be anything at all. Much else in American law has changed beyond recognition in the intervening two-plus centuries. Fortunately, as the result in Wal-Mart v. Dukes suggests, that hasn’t.

For more commentary on the Wal-Mart case, check out (e.g.) editorials at the Washington Post, New York Daily News and Omaha World Herald (favoring the court’s view), and the New York Times and USA Today (opposing), as well as my contributions in the Philadelphia Inquirer and at Overlawyered.

Individualism in Legal Process and the Wal-Mart Case is a post from Cato @ Liberty - Cato Institute Blog

Two weeks ago I blogged about the dismissal of the Katrina-related global warming case because half the judges on the Fifth Circuit were recused for having financial interests in the energy companies and utilities (which the plaintiffs chose specifically to gain recusals but mis-timed their strategy).  Well, now it seems that many judges on the Gulf Coast are recusing themselves from the nascent (and future) oil spill suits, again because they own shares of BP, Transocean, and the other companies involved.  Indeed, over half the federal district judges in the affected states — Texas, Louisiana, Mississippi, Alabama, and Florida — will not be participating in these cases, leading to calls to appoint judges from elsewhere in the country to handle them.

That’s ridiculous!  Owning a few hundred or thousand dollars worth of shares of stock is not enough to change the way a judge will behave, particularly when the public knows which judge owns which stock.  If we cannot agree that such purported “conflicts” don’t really show an appearance of impropriety — if we really doubt the integrity of our judiciary to such an extent — then we might as well throw out the ethics rules, throw up our hands, and declare the country ungovernable.  (I’m reminded of the Carrie Underwood song, “Jesus Take the Wheel.”)

Moreover, the financial conflict rules are murky.  As this AP story discusses, ”a judge does not have to step aside if the investments are part of a mutual fund over which they have no management control. Mere ties to companies or entities in the same industry, no matter how extensive, also don’t require disqualification.”  So here we’re valuing form over substance.

Look, maybe this is just a pet peeve of mine – it’s not an ideological issue one way or the other — but I think you just have to apply the “reasonable skeptic” standard.  Every judge is human and has his various biases.  It’s one thing to recuse if counsel for one of the parties is the judge’s spouse or child, or if half the judge’s wealth is invested in one of the parties.  But dinky little “abundance of caution” recusals cost the justice system more in administrative hassle, sunk attorney fees, and other wastes of time and money than they benefit it in increased integrity.

As for the oil spill litigation, the U.S. Judicial Panel on Multidistrict Litigation — which looks at complex cases on similar issues brought in disparate venues — meets July 29 in Boise, Idaho (of all places), to hear arguments on consolidation.  In light of the aforementioned recusals, the Louisiana cases may well be sent to Alabama, Mississippi, or South Florida — or a federal courthouse near you!

Recusal Rules Impact Environmental (and Other) Litigation is a post from Cato @ Liberty - Cato Institute Blog

In Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), the Supreme Court gave trial courts more latitude to dismiss a lawsuit at a very early stage, before the parties have had a chance to engage in discovery (the often lengthy and expensive fact-finding stage of civil litigation), if judges think the suit is not founded on “plausible” allegations of wrongdoing. 

There’s a rich, angry debate about the effect the decisions will have on dismissal rates of meritorious suits in lower courts. But the consensus among academics seems to be that both decisions will trigger a sea-change in lower court practice—one deeply unfavorable to plaintiffs.

We won’t know the real effect of these decisions for many years to come. But a 2007 study by the Federal Judicial Center on the effect of a trio of similarly controversial 1986 Supreme Court decisions (known as the “Celotex trilogy”) raises questions about dire claims that Twombly or Iqbal will dramatically change lower court practice.

The debate over the Celotex trilogy in the 1980s is eerily similar to today’s debate over Twombly and Iqbal. Responding to concerns that juries award arbitrarily large judgments against corporate defendants, the Celotex trilogy gave lower courts more latitude to grant summary judgment—that is, to toss lawsuits at the end of discovery, before a case gets to a jury, when the judge thinks there is insufficient evidence to justify a jury trial. Many academics complained that the cases would result in a radical sea change in lower court practice—one that benefited corporate defendants at the expense of plaintiffs.

The FJC’s 2007 study is the most comprehensive study of the effect of the decisions to date. Based on data drawn from 15,000 docket sheets in randomly sampled terminated cases in six district courts, the FJC found (as expected) that, before and after the trilogy, summary judgment filing and disposition rates vary significantly from circuit to circuit and between types of cases. After controlling for differences in filing rates across circuits and for changes over time in the types of cases filed, the authors found that “the likelihood that a case contained one or more motions for summary judgment increased before the Supreme Court trilogy, from approximately 12% in 1975 to 17% in 1986, and has remained fairly steady, at approximately 19% since that time.” Moreover, between 1975 and 2000, “no statistically significant changes over time were found in the outcome of defendants’ or plaintiffs’ summary judgment motions, after controlling for differences across courts and types of cases.” Indeed, despite anecdotal claims that Celotex prompted a significant increase in summary judgment in civil rights cases, the authors found “no evidence that the likelihood of a summary judgment motion or termination by summary judgment has increased” in civil rights cases since 1986.

It’s easy to overstate the FJC’s findings. (The data tell us nothing about the quality of summary judgment decisions before or after Celotex, and shed no light on disposition rates at a micro-level, i.e. in product liability actions, as opposed to other tort actions, or Title VII actions, as opposed to other civil rights actions, for example.) The study nonetheless lends some plausibility to the view that Celotex was less a catalyst for change than a ratification of preexisting lower court practice that had evolved largely in spite of the Supreme Court and which the Court was, and is, largely powerless to control.

It’s easy to think of reasons why trial courts’ summary judgment practice might evolve independently of the Supreme Court. A surprisingly large number of trial court decisions, including grants of partial summary judgment, are not immediately appealable—and the pervasiveness of settlement means many of these decisions are never appealed. Intermediate appellate courts, moreover, affirm trial court decisions at an incredibly high rate. And the Supreme Court, which takes only about 80 appeals a year, has dramatically limited capacity to police the innumerable summary judgment dispositions made daily throughout the federal court system. The upshot is that trial courts, as a practical matter, have long had wide discretion to decide even pivotal motions, like summary judgment, with relatively light appellate oversight.

Are Twombly and Iqbal a replay of the Celotex trilogy? Only time will tell. But what we know, to date, about the Celotex trilogy suggests that, whatever you think about Twombly or Iqbal, strong claims about the influence of either decision may well overstate the Supreme Court’s power and influence over trial court practice.

Twombly and Iqbal: Reality Check is a post from Cato @ Liberty - Cato Institute Blog