Tuesday, September 3, 2013
Professor Jill Wieber Lens (Baylor) has posted to SSRN her article, No Matter the Enormous Cost: A Defendant's Accuracy-Based Right to Present Defenses. Here's the abstract:
The Supreme Court has held that a plaintiff has a due process right to her day in court. The right is grounded in a process-based theory of procedural due process, which values litigant participation intrinsically. The defendants in Philip Morris USA v. Williams and Wal-Mart Stores, Inc. v. Dukes claimed something similar — a right to present defenses. The Court recognized that right in both cases, stating that a defendant could not be punished for harming nonparties or be forced to pay damages to a class action plaintiff without being provided the opportunity to present defenses specific to the nonparties and absent plaintiffs.
The cases are significant not because the Court found the right, but how it did so — relying on an outcome-based theory of procedural due process, under which procedures are necessary to achieve accurate results. The pursuit of accuracy is alarmingly uncompromising. Only the accuracy resulting from individualized proceedings was acceptable. And the Court required individualized proceedings despite the costs — unpunished defendants, with little incentive to alter their behavior, and uncompensated, injured plaintiffs. But the Court did not weigh the costs and instead focused on increasing accuracy even though perfect accuracy can never be achieved. The cases pave the way for an absurdly broad, outcome-based right to day in court for defendants.