Thursday, June 13, 2019
Eugene Volokh has published Chief Justice Robots, 68 Duke L.J. 1135 (2019). Here’s the abstract:
Say an AI program someday passes a Turing test, because it can converse in a way indistinguishable from a human. And say that its developers can then teach it to converse—and even present an extended persuasive argument—in a way indistinguishable from the sort of human we call a “lawyer.” The program could thus become an AI brief-writer, capable of regularly winning brief-writing competitions against human lawyers.
Once that happens (if it ever happens), this Essay argues, the same technology can be used to create AI judges, judges that we should accept as no less reliable (and more cost-effective) than human judges. If the software can create persuasive opinions, capable of regularly winning opinion-writing competitions against human judges—and if it can be adequately protected against hacking and similar attacks—we should in principle accept it as a judge, even if the opinions do not stem from human judgment.
Wednesday, June 12, 2019
Lisa Grumet has published Hidden Nondefense: Partisanship in State Attorneys General Amicus Briefs and the Need for Transparency, 87 Fordham L. Rev. 1859 (2019). It begins:
In all fifty states, the State Attorney General (SAG)—as the state’s chief legal officer—is charged with defending state laws that are challenged in court. If an SAG declines to defend or challenges a state law on the ground that it is unconstitutional—an action scholars describe as “nondefense”— the SAG ordinarily will disclose this decision to the public.
This Essay discusses a hidden form of nondefense that can occur when SAGs file amicus curiae briefs on behalf of their states in matters before the U.S. Supreme Court. Surprisingly, some SAGs have joined multistate amicus briefs that support invalidating other states’ laws without disclosing that similar state or local laws exist in the SAGs’ own jurisdictions. This Essay explores this problem through analysis of multistate amicus briefs filed in the 2017 Supreme Court term. It proposes requiring that SAGs disclose relevant laws from their state when they file amicus briefs on behalf of their state with the Supreme Court.
Wednesday, June 5, 2019
Antonio Gidi has posted on SSRN a draft of his article, Incorporation by Reference: Requiem for a Useless Tradition, which is forthcoming in the Hastings Law Journal. Here’s the abstract:
Lawyers mechanically introduce each count in a pleading with the talismanic clause of “repeat and reallege” everything said before in that same pleading. This medieval practice made sense in the formalistic common-law pleading of the sixteenth century but has no place in modern pleadings.
This article traces the origin of the practice, demonstrates that it is not used in any other country, and argues that it is an empty tradition that must stop.
Tuesday, June 4, 2019
Today on the Courts Law section of JOTWELL is Howard Wasserman’s essay, The Supreme Court is Broke, the Question is How to Fix it: Alternatives to Term Limits. Howard reviews two recent articles: Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade’s Whiplash, Tex. L. Rev. (forthcoming 2019), and Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. (forthcoming 2019).
Zoe Niesel has published #PersonalJurisdiction: A New Age of Internet Contacts, 94 Ind. L.J. 103 (2019). Here’s the abstract:
No other issue has proved more challenging in the sphere of personal jurisdiction than the internet. In addition to refusing to respect territorial boundaries, the internet allows users to access, change, create, and manage content in ways that are not present in physical space. Further, the rise of social media and other more interactive technologies, such as bots and cookies, make determining a user’s minimum contacts with a forum more challenging than ever. The time has come to acknowledge that the internet has minimum contacts with every jurisdiction.
Current approaches used when personal jurisdiction and the internet collide are straining under technological developments. The premiere approach to internet jurisdiction is the so-called “Zippo test,” which bases personal jurisdiction on whether a website is “interactive.” The Zippo approach has left the case law inconsistent and does not account for recent innovations, such as social media, targeted advertising, artificial intelligence, and bots. This Article proposes a shift in the manner in which courts should think about personal jurisdiction and website interactivity. Specifically, this Article proposes that the time has come to embrace a revised analysis that incorporates traditional fairness factors with the defendant’s implicit acknowledgement that the internet is targeting a national forum.
The analytical framework proposed by this Article seeks to remove inconsistent applications of an outdated Zippo test. However, it also attempts to be proactive. The internet is moving to become even more customized, ubiquitous, and self-aware than ever before. A new way to examine internet contacts is thus needed to account for changing technologies to ensure fairness and predictability.
Friday, May 31, 2019
Alexandra Lahav and Peter Siegelman have published The Curious Incident of the Falling Win Rate: Individual vs System-Level Justification and the Rule of Law, 52 U.C. Davis L. Rev. 1371 (2019). Here’s the abstract:
For forty quarters starting in 1985, the plaintiff win rate in adjudicated civil cases in federal courts fell almost continuously, from 70% to 30%, where it remained — albeit with increased volatility — for the next twenty years. This Essay explores the reasons for this decline and the need for systemic explanations for the phenomenon. Approximately 60% of the fall could be attributable to the changing makeup of the federal docket, but that leaves 40% of the fall (that is, a win rate decline of 14 percentage points over a ten year period) unaccounted for. We show that the most obvious explanations for the remaining fall in the win rate and subsequent volatility do not fit the data and assumptions about rational behavior.
Changes in system-level “outputs” of the justice system require a justification that is consistent with rule of law values. The absence of such an explanation for the falling win rate should be a source of concern. Further empirical studies could help explain this mystery, but such studies require data only in the possession of the courts themselves, or that are not currently systematically collected. We conclude with an explanation for why systemic studies of the workings of the justice system are important.
Wednesday, May 29, 2019
Ion Meyn has published The Haves of Procedure in the William & Mary Law Review. Here’s the abstract:
In litigation, “haves” and “have-nots” battle over what procedures should govern. Yet, much greater hostilities have been avoided—a war between the “haves” themselves. “Criminal haves” (prosecutors) and “civil haves” (institutional players) litigate in separate territories and under different sets of rules. This is good, for them, because they have incompatible objectives. This Article contends that protecting the “haves” from each other has profoundly influenced the development of procedure in the United States.
The “haves” reap significant benefits in being insulated from each other as they seek rules responsive to their unique preferences. A “criminal have” seeks easy access to the forum and thus prefers a permissive pleading standard. In contrast, a “civil have” seeks to impede a plaintiff from bringing suit and thus prefers a demanding pleading standard. As to discovery, “criminal haves,” possessing actionable facts and seeking to control the pretrial distribution of information, resist discovery and judicial involvement. In contrast, “civil haves” often need information to pursue legal objectives, and thus prefer a formal discovery phase, along with the option of judicial intervention to temper instances of discovery abuse. The procedural divide allows the “haves” to achieve these otherwise incompatible objectives.
In the absence of a procedural divide, “criminal haves” and “civil haves” would engage in contestation over what rules govern litigation. This Article suggests that, should civil and criminal litigants be subject to the same rules, as initially proposed during federal reform in the 1940s, the introduction of litigants into a unified forum would result in a fairer approach to procedure, mitigate existing inequalities, and accomplish some litigation objectives of the “havenots.”
Friday, May 24, 2019
Wednesday, May 22, 2019
Seth Endo has published Discovery Hydraulics, 52 UC Davis L. Rev. 1317 (2019). Here’s the abstract:
Discovery reforms invariably have unexpected consequences. But the growth of electronically stored information has led to one constant — an ever-increasing pressure on the finite resources of both the judiciary and litigants. Courts, through their discovery rules, direct where that pressure will be channeled. However, like any force in a closed system, it must be sent somewhere, ultimately requiring difficult tradeoffs amongst the three mainstay procedural justice norms of accuracy, efficiency, and participation. Discovery Hydraulics explores this phenomenon, cataloging how recently proposed or implemented document discovery reforms affect these norms.
In creating the first purposive taxonomy of recent document discovery reforms, Discovery Hydraulics makes three main contributions to the literature by: (1) articulating an understanding of how the treatment of costs and information volume correspond to the accuracy, efficiency, and participation norms; (2) systematically collecting and organizing the plethora of suggestions that have been offered to address the burdens associated with the growth of electronically stored information; and (3) laying out the normative and instrumental benefits of discovery reforms that focus on reducing costs without losing information. Last, but not least, a significant practical benefit is that this analytical approach should provide courts with the tools needed to assess, ex ante, the potential normative effects of changes to document discovery processes.
Friday, May 17, 2019
Jie (Jeanne) Huang has published Personal Jurisdiction Based on the Location of a Server: Chinese Territorialism in the Internet Era?, 36 Wis. Int’l L.J. 87 (2018). Here’s the abstract:
Whether a court can exercise personal jurisdiction based on the location of a server in internet tort cases is a controversial issue. Its significance comes from the paradox that the internet is de-localized because it is ubiquitous, but servers are indispensable to the internet and every server has a geographic location. Since 2001, Chinese law has allowed courts to exercise personal jurisdiction solely based on the location of a server or other computing equipment in intellectual property infringement cases. Recently, it has extended this jurisdiction rule to all internet torts. This paper asks whether the location of a server should be considered the place where the tort occurs and whether this territorial-based jurisdiction rule can suffice its public-law legislative goal. It may enrich current research about technology-mediated legal challenges to private international law in two aspects. Firstly, it conducts a broad international survey by looking into laws in China, the U.S., Australia and the EU. It also analyzes where the tort occurs when servers are owned by an infringer, a third party or an infringee in domain name registration, service outsourcing, platform, cloud computing, commercial spams, etc. It concludes that in legal theory, the location of the server is not the place where an internet tort occurs. Secondly, by analyzing China’s experience, it argues that, in the internet era, states have to look for private-international-law tools to advance their public policy claims. However, the practice shows that the territorial-based jurisdiction rule is limited in fulfilling its pubic-law legislative goal.
Thursday, May 16, 2019
Marin Levy has published Visiting Judges, 107 Cal. L. Rev. 67 (2019). Here’s the abstract:
Despite the fact that Article III judges hold particular seats on particular courts, the federal system rests on judicial interchangeability. Hundreds of judges “visit” other courts each year and collectively help decide thousands of appeals. Anyone from a retired Supreme Court Justice to a judge from the U.S. Court of International Trade to a district judge from out of circuit may come and hear cases on a given court of appeals. Although much has been written about the structure of the federal courts and the nature of Article III judgeships, little attention has been paid to the phenomenon of “sitting by designation”—how it came to be, how it functions today, and what it reveals about the judiciary more broadly.
This Article offers an overdue account of visiting judges. It begins by providing an origin story, showing how the current practice stems from two radically different traditions. The first saw judges as fixed geographically, and allowed for visitors only as a stopgap measure when individual judges fell ill or courts fell into arrears with their cases. The second assumed greater fluidity within the courts, requiring Supreme Court Justices to ride circuit—to visit different regions and act as trial and appellate judges—for the first half of the Court’s history. These two traditions together provide the critical context for modern-day visiting.
The Article then presents a thick descriptive analysis of contemporary practice. Relying on both qualitative and quantitative data, it brings to light the numerous differences in how the courts of appeals use outside judges today. While some courts regularly rely on visitors for workload relief, others bring in visiting judges to instruct them on the inner workings of the circuit, and another eschews having visitors altogether in part because the practice was once thought to be used for political ends.
These findings raise vital questions about inter- and intra-circuit consistency, the dissemination of culture and institutional knowledge within the courts, and the substitutability of federal judges. The Article concludes by taking up these questions, reflecting on the implications of visiting judges for the federal courts as a whole.
Wednesday, May 15, 2019
Mike Pardo has published The Paradoxes of Legal Proof: A Critical Guide, 99 B.U. L. Rev. 233 (2019). Here’s the abstract:
For several decades, a variety of paradoxes have fascinated and frustrated legal scholars and courts discussing evidence, procedure, and legal proof. These paradoxes concern issues such as statistical evidence, burdens and standards of proof, and rules for jury verdicts. As with other types of paradoxes, the paradoxes of legal proof raise fundamental issues and assumptions. In the legal context, the issues and assumptions are not merely of theoretical interest; they also have significant practical implications at trial and, indeed, throughout the processes of civil and criminal litigation. At the same time, there remains very little agreement about any of the paradoxes, and the issues they raise remain highly contested.
This Article explores the different types of legal-proof paradoxes and the connections between them. In analyzing the structure of the paradoxes, the Article makes three contributions. First, it explains the practical significance of the paradoxes and why they raise fundamental issues for evidence law and civil and criminal procedure. Second, it reveals the necessary connections between the different types of paradoxes and the ways in which one type of paradox has implications for the others. These unexplored connections help to explain why individual paradoxes have resisted consensus and continue to prompt discussion and disagreement. The paradoxes are too often treated as isolated problems to be “solved” without appreciating how the underlying issues relate to those raised by the other paradoxes. Third, the analysis clarifies the primary source of confusion for each type of paradox: namely, the popular but mistaken assumption that standards of proof are probabilistic thresholds. Abandoning this spurious assumption provides a number of salutary theoretical and practical consequences, including greater clarity of the legal issues underlying the paradoxes, a better explanation of legal doctrine, and an improved understanding of the manifold litigation issues dependent on the legal-proof process.
Tuesday, May 7, 2019
Today on the Courts Law section of JOTWELL is Lou Mulligan’s essay, Is Personal Jurisdiction Constitutionally Self-Enacting? Lou reviews Ben Spencer’s recent article, The Territorial Reach of Federal Courts, which is forthcoming in the Florida Law Review.
Friday, May 3, 2019
Roger Michalski has published How to Sue a Robot, 2018 Utah L. Rev. 1021. Here’s the abstract:
We are entering the age of robots where autonomous robots will drive our cars, milk cows, drill for oil, invest in stock, mine coal, build houses, pick strawberries, and work as surgeons. Robots, in mimicking the work of humans, will also mimic their legal liability. But how do you sue a robot? The current answer is that you cannot. Robots are property. They are not entities with a legal status that would make them amendable to sue or be sued. If a robot causes harm, you have to sue its owner. Corporations used to be like this for many procedural purposes. They were similarly tethered to human owners. Over time, courts and legislators abandoned the model of treating corporations solely as property and increasingly treated them as an independent artificial person for litigation purposes.
Robots might also make a transition along those lines. If they do, which legal model should we adopt for robots? Are they more like an employee, a franchisee, a slave, a subsidiary, a child, an animal, a subcontractor, an agent, or something else altogether? Given the inherent path-dependence of procedural law, picking the right model will have important consequences and will be difficult to reverse.
This Article lays the groundwork for this fundamental decision. It explains the urgency and importance of this decision and presents three analytical frameworks (ontological, deontological, and functional) for how we can approach the question of robots in civil litigation. Often unnoticed and unarticulated, these analytical frameworks structure important doctrinal and normative positions. The Article then applies these analytical frameworks to evaluate numerous concrete contestant models for treating robots as litigation entities. The resulting taxonomy exposes the weaknesses of analogizing robots to established models—none fits, and all would have negative practical consequences. Instead of utilizing an existing model, this Article argues that we must treat robots as a new litigation category that borrows insights selectively and partially from a range of the existing models. For example, we must craft a new in robotam personal jurisdiction doctrine to supplement the old in personam jurisdiction doctrine. Doing otherwise would expose procedure to doctrinal incoherence, legislation to policy mayhem, and parties injured by robots to unnecessary costs and insurmountable procedural hurdles.
Friday, April 26, 2019
Ronald Brand has published Recognition of Foreign Judgments in China: The Liu Case and the “Belt and Road” Initiative, 37 J.L. & Com. 29 (2018). Here’s the abstract:
In June, 2017, the Wuhan Intermediate People’s Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and Road” Initiative first announced by Chinese President Xi Jinping on a visit to Kazakhstan in 2013. This article traces the development of the Liu case, from the first judgment in California to the decision to recognize and enforce that judgment in Wuhan, China. It then provides the context within which the decision on recognition and enforcement was made, and the way the decision fits within President Xi’s “Belt and Road” Initiative and the pronouncements of the Chinese People’s Supreme Court which have encouraged the recognition and enforcement of foreign judgments as part of that Initiative.
Monday, April 22, 2019
Maureen Carroll has published Class Actions, Indivisibility, and Rule 23(b)(2), 99 B.U. L. Rev. 59 (2019). Here’s the abstract:
The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature of the remedy the plaintiffs seek.
Some defendants have encouraged federal courts to adopt an extremely restrictive version of indivisibility, which I term “endpoint indivisibility,” as a standard for applying Rule 23(b)(2). This Article argues that an endpoint indivisibility requirement would be fundamentally inconsistent with the historical models for Rule 23(b)(2). Moreover, such a requirement would have devastating effects on civil rights litigation. An alternative standard, which I term “root-cause indivisibility,” offers a better logical and historical fit.
Friday, April 19, 2019
Josh Douglas & Mike Solimine have published Precedent, Three-Judge District Courts, and the Law of Democracy, 107 Geo. L.J. 413 (2019). Here’s the abstract:
As recent partisan gerrymandering cases have shown, three-judge district courts play a unique and important role in how the federal judiciary considers significant election law disputes. Yet two somewhat quirky procedural questions involving these courts remain unresolved: first, is a Supreme Court ruling to summarily affirm a three-judge district court’s decision precedential on all future courts? That is, why should a one-line order from the Supreme Court, without explanation, formally bind all future courts on the issue, especially when it is unclear what aspect of the lower court’s decision was correct? Second, must a three-judge district court follow, as mandatory authority, circuit precedent in the circuit in which it sits, even though an appeal from the ruling of a three-judge district court will skip the court of appeals and go directly to the U.S. Supreme Court?
This Article tackles these problems and provides clear-cut answers, which will ultimately improve judicial decisionmaking for some of the most important cases that the federal judiciary hears given their effect on democracy. On the first question, we find that summary decisions of the U.S. Supreme Court are entitled to zero or very little precedential value, and therefore that the Justices need not feel obliged to hear these cases in full if they want the issue to percolate in the lower courts first. Yet there should be a presumption in favor of the Court providing legal guidance on the issue, meaning that most of the time it should set the case for oral argument and provide a full written opinion. On the second question, we conclude that circuit precedent is not formally binding on three-judge district courts, although of course in many cases it will be highly persuasive.
Procedural questions stemming from three-judge district courts impact their substantive rulings, which mostly involve redistricting and campaign finance. Resolving these two questions on the procedures involving three-judge district courts will help to ensure that these special courts operate as Congress intended, ultimately improving our electoral system.
Wednesday, April 17, 2019
Jessica Steinberg has published A Theory of Civil Problem-Solving Courts, 93 N.Y.U. L. Rev. 1579 (2018). Here’s the abstract:
This Article is the first to develop a problem-solving theory for the civil justice system. Drug courts pioneered the problem-solving model in the 1990s to pursue therapeutic goals as an alternative to “assembly line” jail-based sentencing. This Article explores the potential for migration of the drug court framework into the two most commonly adjudicated private law cases: rental housing and consumer debt.
Three structural conditions in the civil courts—systemic lack of counsel, high-volume dockets, and corporate capture of the small claims process—routinely position vulnerable classes of individuals on the losing end of litigation. In the aggregate, these conditions have rendered the civil justice system predictably ineffective in combatting recurring social issues such as substandard housing and unscrupulous debt collection. The heart of the problem-solving theory in drug courts is the availability of an alternative remedy: treatment over prison. In civil courts, the remedy itself is not necessarily deficient; it is access to the remedy that is compromised. Relying on two years of field research in an experimental court, this Article demonstrates how core drug court principles, such as naming the purpose of the court as solving a social problem, interdisciplinary collaboration, and a strong judicial role, can be manipulated to address process failures in the civil justice system and reimagine the courts as proactive institutions responsible for the pursuit of socially beneficial outcomes.
The Article also argues that a civil problem-solving theory survives many of the valid critiques levied against drug courts. In particular, drug courts have come under fire for playing a moralizing role and using compulsory treatment as a form of social control. A civil problem-solving court, however, would not exacerbate the negative impact of state power on already over-burdened groups. Instead, the targets of monitoring and behavior modification are the more powerful private actors to the litigation, such as property owners and debt buyers, who otherwise have been known to manipulate the courts—an instrument of the state—to evade their legal obligations and suppress individual rights.
Tuesday, April 9, 2019
Today on the Courts Law section of JOTWELL is Suja Thomas’s essay, Plea Bargaining with Juveniles. Suja reviews a recent article by Erika Fountain & Jennifer Woolard, How Defense Attorneys Consult With Juvenile Clients About Plea Bargains, 24 Psych. Pub. Pol’y & L. 192 (2017).
Friday, April 5, 2019
Cassandra Robertson has published Judicial Impartiality in a Partisan Era, 70 Fla. L. Rev. 739 (2018). Here’s the abstract:
Judicial legitimacy rests on the perception of judicial impartiality. As a partisan gulf widens among the American public, however, there is a growing skepticism of the judiciary’s neutrality on politically sensitive topics. Hardening partisan identities mean that there is less middle ground on political issues and less cooperation among those with differing political views. As a result, the public increasingly scrutinizes judges and judicial candidates for signs of political agreement, distrusting those perceived to support the opposing political party.
Judges themselves are not immune to these political forces. In spite of a strong judicial identity that demands impartiality and judicial conduct rules that require judges to avoid even the appearance of bias, judges have the same unconscious biases and preconceptions as anyone else. Moreover, judges must generally have strong political affiliations to reach the bench at all, regardless of whether they are elected or appointed. Drawing the line between mere political affiliation and an inappropriate appearance of partisan bias can therefore be difficult.
This Article analyzes the mechanisms available to safeguard judicial impartiality. Although recusal motions are the most common weapon against partisan bias, this Article argues that recusal motions cannot effectively guard against the appearance of bias arising from a judge’s political views. When recusal rules rely on an undefined “appearance” standard, they are susceptible to an interpretive bias that undermines their purpose. Nonetheless, the Article concludes that the appearance of partisan bias in the judicial branch is not so different from other types of unconscious bias. As a result, ordinary procedural tools—including the right to a jury trial and our system of appellate review—may provide a stronger safeguard against judicial bias than recusal motions.