UCLA Law Review Volume 60, Issue 6


Complexity, the Generation of Legal Knowledge, and the Future of Litigation

The central problem of rationality is to tame and domesticate the overwhelming complexity the human mind faces in its efforts to survive and thrive in a complex, unpredictable, and hostile universe. Much of the history of the human race is essentially the story of its expanding capacity to do just that, and the survival benefits that this process has bestowed on the species. Legal systems in general are part of the story of taming complexity, and the modern American legal system is a particularly important part. In an effort to understand the nature of legal systems, much legal scholarship, like the scientific endeavors in many other disciplines, engages in reductivist efforts that simplify and then tries to explain or engage in normative efforts about a certain set of phenomena, typically through a priori reasoning. An outstanding and enormously influential example is economic analysis of law. Two recent publications of this kind particularly pertinent to The Future of Litigation are the extraordinary efforts of Louis Kaplow to explain, justify, and reform the law of burden of proof and essentially the entire judicial process. In contrast to such reductivist efforts is the methodology of Stephen Yeazell, which might be called the reformed judicial process school. The reformed judicial process school embraces rather than suppresses the complexity of the matter under investigation, in this case the judicial system, and employs whatever tools of analysis seem most appropriate to the task at hand, including careful doctrinal exegesis, the application of microeconomics, or empirical research. The result (whatever Yeazell or others might have intended) is careful, bottom-up empiricism rather than top-down prescription. Each approach has its utility and limitations. In the effort to advance knowledge of the operation of the legal system, work like Yeazell’s succeeds better than reductivist approaches. Yeazell’s work succeeds because he recognizes the implications of the legal system’s complexity and its dynamic nature, while the legal economists fail in that regard. In predicting The Future of Litigation, the work product of the reformed judicial process school is more likely to be influential than that of standard microeconomic theorizing. This is particularly evident in the pleading area that has been thrown into turmoil by the recent Supreme Court decisions in Iqbal and Twombly.

Regulation by Liability Insurance: From Auto to Lawyers Professional Liability

Liability insurers use a variety of tools to address adverse selection and moral hazard in insurance relationships. These tools can act on insureds in a manner that can be understood as regulation. We identify seven categories of such regulatory activities: risk-based pricing, underwriting, contract design, claims management, loss prevention services, research and education, and engagement with public regulators. We describe these activities in general terms and then draw upon prior literature to explore them in the context of five areas of liability and corresponding insurance: shareholder liability, automobile liability, gun liability, medical professional liability, and lawyers professional liability. The goal is to develop a conceptual framework to guide qualitative research on liability insurance as governance for initial application to lawyers’ liability and insurance.

When Courts Determine Fees in a System With a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendants

Under the English rule, the loser pays litigation costs whereas under the American rule, each party pays its own costs. Israel instead vests in its judges full discretion to assess fees and costs as the circumstances may require. Both the English and the American rules have been the subjects of scholarly criticism. Because little empirical information exists about how either rule functions in practice, an empirical study of judicial litigation cost award practices should be of general interest. This Article presents such a study in the context of Israel’s legal system. We report evidence that Israeli judges apply their discretion to implement multiple de facto litigation cost systems: a one-way shifting system that dominates in most tort cases; a loser pays system that operates when publicly owned corporations litigate; and a loser pays system with discretion to deny litigation costs in other cases. Although a loser pays norm dominates in Israel with litigation costs awarded to the prevailing party in 80 percent of cases, Israeli judges still often exercised their discretion to protect certain losing litigants, especially individuals, from having to pay their adversaries’ litigation costs. In tort cases won by individual plaintiffs against corporate defendants, for example, corporations had to pay their own litigation costs plus plaintiffs’ litigation costs 99 percent of the time. Even when the corporate defendants prevailed, they still had to pay their own litigation costs 52 percent of the time. When public corporations litigated and lost, a loser pays system dominated. Award patterns also varied by case category and judicial district. In property cases in one district, courts denied prevailing plaintiffs fees in about 75 percent of cases. Theorizing about optimal fee rules should account for the variety of fee outcomes observed in practice.

Symmetry and Class Action Litigation

In ordinary litigation, parties often have different resources to devote to their lawsuit. This is a problem because the adversarial system is predicated on two (or more) parties, equal and opposite one another, making their best arguments to a neutral judge. The class action is a procedural device that aims to solve this problem by equalizing resources between individual plaintiffs and organizational defendants. It does this by allowing plaintiffs to pool their claims. Current developments in class action doctrine, however, reinforce in the courtroom the asymmetry that exists between individual plaintiffs and organizational defendants outside the court. This Article explores these trends and the questions they raise. Why is it that critics of class actions (and some judges) argue that class actions ought not to be certified for litigation purposes because they “blackmail” defendants into settling suits, but they approve of the practice of certifying class actions for settlement when defendants seek to settle clearly meritless claims? Why is the blackmail argument so resilient in the class action context, and what insight does this lend to the context of binary litigation where litigants are more likely to have unequal resources to devote to litigation and, as a result, more likely to enter into settlements that do not reflect the true value of their claim? Should asymmetry of resources in litigation be considered a problem for our court system, or is it right for courts to take litigants as they find them, even if litigants have vastly unequal resources to devote to pursuing their lawsuits?

Atomism, Holism, and the Judicial Assessment of Evidence

How should judges go about assessing the admissibility of evidence? In this Article, I explore a key and underexamined issue within evidence law: the interpretive tension between atomism and holism. Should judges assess the admissibility of an item of evidence atomistically—piece by piece, and by itself? Or should they engage in a more holistic, synthetic, and relational inquiry? I argue that there is not, and cannot be, any simple answer to this question, because judicial atomism versus holism turns out to implicate two further important tensions within our bifurcated trial system: the balance of power between the judge and the attorney, on the one hand, and between the judge and the jury, on the other. Moreover, the relation between these multiple issues turns out to depend significantly on whether the evidentiary assessment at issue is what I term a low-threshold evidentiary determination, tilted in favor of admissibility (like relevance, or Rule 403), or, instead, a high-threshold determination (like the assessment of expert evidence). This Article explores both an array of evidence doctrines and the extent to which they provide guidance to judges vis-à-vis atomism versus holism, and then looks in detail at how atomism versus holism operates in both low-threshold and high-threshold circumstances.

Altering Attention in Adjudication

Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this Article, we report the results of a series of studies exploring various ways in which directing judicial attention can shape judicial outcomes. In the first study, we show that judges impose shorter sentences when information concerning the cost of incarceration is made available to them. In the second study, we demonstrate that judges assess the credibility of expert witnesses more favorably when lawyers present an additional expert with similar, albeit notably weaker, credentials. In the third study, we show that the format in which prosecutors present forensic testimony can alter judges’ assessments of that testimony’s probative value. Finally, in the fourth study, we demonstrate that judges’ willingness to ignore inadmissible evidence in a criminal case is affected by both the gravity of the crime and the severity of the police misconduct. In each of these studies, varying the context in which judges review evidence or altering the form in which that evidence is presented shifts judges’ attention and alters their decisions.

Wolves and Sheep, Predators and Scavengers, or Why I Left Civil Procedure (Not With a Bang, but a Whimper)

This is a piece written on the retirement of Professor Stephen Yeazell, whose distinguished career is almost contemporaneous with my own time in law teaching. I started teaching Civil Procedure in the fall of 1973 fresh from a federal district court clerkship. I was attracted to the possibilities of using the civil litigation system to provide justice to those who were otherwise without much power in society. The Federal Rules of Civil Procedure as then interpreted, and as I had seen them work during my clerkship, seemed well designed for such a role. Not long after I began teaching, the first effective shots of the civil procedure counterrevolution were fired at the 1976 Pound Conference, sponsored by the American Bar Association at the behest of Chief Justice Warren Burger. This paper chronicles my view of the counterrevolution from that point through the decision of the summary judgment trilogy in 1986, and into the early 1990s. The trilogy and its aftermath, and related developments in regard to other topics such as class actions, finally led me to abandon civil procedure as a subject of interest, and to turn my sole attention to other fronts. It is good that others such as Professor Yeazell stayed to fight the rear guard action, or to document the lost battles, or to make the best of a bad situation, but given what has happened to Civil Procedure since I left it, I am generally glad I moved on to new pastures in Evidence and Proof, and in the innocence movement.

Gateways and Pathways in Civil Procedure

Over the past thirty years, the U.S. Supreme Court and the Judicial Conference have modified the Federal Rules of Civil Procedure to address concerns that litigation costs too much, takes too long, and leads to unjust results. The Supreme Court’s opinions have focused primarily on fortifying what I refer to as the gateways of civil procedure— including motions to dismiss, motions for class certification, and motions for summary judgment—where judges can dismiss cases that do not meet the applicable standards, thereby eliminating additional cost and delay. The Judicial Conference, in contrast, has focused primarily on regulating what I call the pathways of civil procedure— nondispositive, context-specific decisions during discovery and before trial—to target problems of cost and delay while allowing cases to proceed. Scholars have dissected and debated these gateway and pathway changes but have paid less attention to how these conversations—and the underlying rules—interrelate. This Article offers a unified framework with which to understand the Rules’ two contrasting strategies to achieve just and efficient outcomes and examines available evidence measuring gateways’ and pathways’ relative effectiveness at achieving their shared goals. Stepping back, this Article asks how best to understand the roles of gateways and pathways in civil process and considers new, hybrid rules that draw on characteristics of gateways and pathways and may improve on current design.

Pleading and Access to Civil Justice: A Response to <em>Twiqbal</em> Apologists

Professor Stephen Yeazell once wrote, “A society based on the rule of law fails in one of its central premises if substantial parts of the population lack access to law enforcement institutions.”* One apparent threat to access to justice in recent years has been the erosion of notice pleading in the federal courts in favor of a plausibility-pleading system that screens out potentially meritorious claims that fail to offer sufficient specificity and support at the pleading stage. But some have questioned whether this purported threat is more perceived than real. Indeed, this doctrinal shift has been defended in several  ways that each suggest—in their own way—that the critical response to Twombly and Iqbal may be much ado about little or nothing. 

These apologies for the doctrinal shift, if you will, generally fall into three categories. The first consists of arguments suggesting that the standard has not really changed at all, which I will refer to as the “consistency” defense. The second group concedes that there has been a change but argues that the change has not had or will not have a substantial impact; I will call this the “inconsequentiality” defense. The final category contains those arguments asserting that the changes are consequential but in a good way, meaning that the strengthening of pleading standards was warranted and will be beneficial to the litigation system. I refer to this type of argument as the “efficiency” defense.

This essay responds to each of these apologies, finding that the consistency defense is doctrinally unsound, that the inconsequentiality defense is doubtful (if not counterfactual), and that the efficiency defense is misguided, given the patent overinclusiveness and subjectivity of the plausibility doctrine.

Teaching <em>Twombly</em> and <em>Iqbal</em>: Elements Analysis and the Ghost of Charles Clark

This is an edited version of remarks I gave January 24, 2013, at the UCLA Law Review Symposium honoring the contributions of Professor Steve Yeazell to the field of Civil Procedure.

Unspoken Truths and Misaligned Interests: Political Parties and the Two Cultures of Civil Litigation

During the last four decades the United States has witnessed first the emergence and then the disappearance of civil litigation as a topic of partisan debate in national politics. Following two centuries in which neither party thought the topic worth mentioning, in the last decades of the twentieth and the first decade of the twenty-first century, both parties made it part of their agendas. Republican candidates and presidents denounced litigation as a blight; Democratic candidates and presidents embraced it as a panacea. This Essay traces the emergence of this issue, the apparent oddness of the two parties’ stances toward it, and the ways in which both parties chose to ignore salient characteristics of modern civil litigation—the unspoken truths of my title. Finally, I tentatively suggest some reasons for the disappearance of this issue—at least temporarily—from the political scene.