What Are Courts For? Have We Forsaken the Procedural Gold Standard?

What Are Courts For? Have We Forsaken the Procedural Gold Standard? Arthur R. Miller * TABLE OF CONTENTS Prologue: Reflections ................................................................... 739 I. Early Termination of Cases: The Procedural Stop Signs ............. 746 A. Personal Jurisdiction .............................................................. 747 B. Pleading ................................................................................. 750 C. Class Actions ......................................................................... 753 D. Discovery ............................................................................... 767 E. Expert Witnesses ................................................................... 769 F. Summary Judgment ............................................................... 769 II. The Privatization of Civil Dispute Resolution ............................. 773 III. Related Relevant Procedural Phenomena ..................................... 786 A. Multidistrict Litigation ........................................................... 786 B. Judicial Management ............................................................. 794 IV. Why Has All of This Happened? ................................................. 797 V. Some Final Observations ............................................................. 804 Epilogue ....................................................................................... 809 PROLOGUE: REFLECTIONS I had the great pleasure and honor of knowing Judge Alvin Rubin. On occasion, he was my house guest in Cambridge, Massachusetts when I was on the Harvard Law School faculty. He always arrived with a quart of shrimp étouffée, which we collaboratively consumed with gusto. I also had Copyright 2018, by ARTHUR R. MILLER. * University Professor, New York University. This Article expands and updates my Alvin and Janice Rubin Lecture delivered at the Paul M. Hebert Law Center, Louisiana State University on March 8, 2017. I have tried to preserve its conversational style. At several points, however, that style did not translate to paper, but the substance of my remarks has not been changed. The citations are designed to be illustrative rather than exhaustive. 740 LOUISIANA LAW REVIEW [Vol. 78 the privilege of arguing cases before him in the Fifth Circuit. 1 As a judge, Alvin had “a profound respect for the law and the limitations it imposes on judges.” 2 His commitment was total. Fellow Fifth Circuit Judge John Minor Wisdom once described him as someone born to be on the bench. 3 My remarks in his memory are personal, at times impressionistic, reflecting the belief that the aspirational ideas underlying the American civil justice system are to promote the resolution of disputes on their merits after an adversarial contest on a level litigation playing field with minimal technicality. These ideals certainly were the hopes of those distinguished lawyers and professors who wrote the Federal Rules of Civil Procedure in the 1930s. The drafters wanted to give people access to a meaningful day in court and believed that the procedural process should effectuate those aspirations. The system the rulemakers created was designed with that in mind, and many believed that the Federal Rules represented a Gold Standard that envisioned a trial and, when appropriate, one before a jury. For example, the rulemakers concluded that simplified pleading opened the courthouse door and promoted adjudicating a dispute on its merits with a minimum of motion practice. Wide-angle discovery was intended to give litigants equal access to all information relevant to the case’s subject matter, which always has seemed very American to me. How can you be against enabling litigants to be informed? Especially close to my heart is the class action, perhaps because I participated in drafting the 1966 revision of Federal Rule 23. It was designed in part to provide a receptive procedural vehicle for the world of civil rights litigation that emerged after the 1954 decision in Brown v. Board of Education of Topeka, 4 in part to promote efficiency—litigants get more judicial bang for their judicial buck when like things are aggregated and adjudicated together—in part to achieve consistency of result for all people affected by the same conduct, and in part to be a mechanism for the joinder of modest claims that are not economically viable for litigation on an individual basis—what, today, are called negative value claims. 5 Finally, 1. I once argued an en banc appeal before Alvin and 13 of his colleagues. None of them asked me a single question during the 30 minutes allotted to me— the Bench’s silence made it a harrowing experience. When I asked him why years later, he simply said with a twinkle, “I don’t like diversity cases and my colleagues just wanted to listen to you.” 2. See John Minor Wisdom, Dedication: Judge Alvin Rubin, 52 LA. L. REV. 1371, 1371 (1992). 3. See David W. Robertson, Alvin Rubin’s Last Dissent , 70 TEX. L. REV. 7, 9 (1991). 4. Brown v. Bd. of Educ., 347 U.S. 483 (1954). 5. I have always believed that whatever small claim class actions may lack in terms of significant individual compensation they often make up for in terms 2018] WHAT ARE COURTS FOR? 741 the Rules were written to be useful for enforcing the public policies embedded in national and state statutes as well as common-law doctrines, such as antitrust, securities, civil rights, products liability, and other more recently developed substantive fields, such as environment, pension protection, privacy, and consumer rights. I was blessed by having a wonderful procedure professor, mentor, and role model—Benjamin Kaplan of the Harvard Law School—who imbued me with the thoughts I just expressed when I was his student and research assistant. 6 My legal education was followed by an apprenticeship in a law firm at a time when litigation practice was relatively civilized and it seemed to me that the Federal Rules were working as they were intended to work. A few years later, life’s fortuities again brought me together with Ben, who had been appointed by Chief Justice Earl Warren as the Reporter of the Federal Rules Advisory Committee of the Judicial Conference of the United States. 7 As a result of a delightful constellation of circumstances he enticed me to work with him on what a few years later became the 1966 amendments to those Rules. 8 In remembering Judge Rubin and thinking about how best to honor him, I asked myself whether we are moving toward or away from the aspirations of my youth, which I know he shared, 9 by looking through a of deterring wrongdoing. See generally David Marcus, Flawed but Noble: Desegregation Litigation and Its Implications for the Modern Class Action, 63 FLA. L. REV. 657 (2011). 6. My indebtedness to Ben is recorded in In Memoriam: Benjamin Kaplan, 124 HARV. L. REV. 1345, 1354–57 (2011). My involvement in what became the 1966 Federal Rule amendments is described in Arthur R. Miller, Some Very Personal Reflections on the Rules, Rulemaking, and Reporters, 46 U. MICH. J.L. REFORM 651 (2013). 7. The congressional delegation of rulemaking authority to the Supreme Court is set out in 28 U.S.C. §§ 2071–2073 (2012). The multi-tiered federal rulemaking process, its scope, and its difficulties are discussed in Robert G. Bone, The Process of Making Process: Court Rulemaking, Democratic Legitimacy, and Procedural Efficiency, 87 GEO. L.J. 887 (1999); Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015 (1982); Edward H. Cooper, Rule 23: Challenges to the Rulemaking Process, 71 N.Y.U. L. REV. 13 (1996); David L. Shapiro, Federal Rule 16: A Look at the Theory and Practice of Rulemaking, 137 U. PA. L. REV. 1969 (1989). 8. For what sometimes feels like forever, I have been teaching and writing about procedure ever since. On days when I am feeling low, I count the number of times I have taught Pennoyer v. Neff, 95 U.S. 714 (1877) and Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The final count does not lift my spirits. 9. He was an optimist about the federal courts and their future. See Alvin B. Rubin, The Role of the Federal Courts in the Next 25 Years, 39 LA. B.J. 44 (1991). 742 LOUISIANA LAW REVIEW [Vol. 78 telescope trained on what is going on in our courts today. What do I see after almost 60 years of professional devotion to civil procedure— admittedly mainly federal? Are the Rules still working as they were intended to work? In a nutshell, my judgment is that many of the principles I once took for granted have been compromised in the last 30 to 40 years. Would Alvin agree with me? I think he would. If I am right, were the rulemakers of the 1930s engaged in wishful thinking? Have I been naïve all these years? It makes me wonder, as I have over the years: what are courts for? Indeed, each year I ask my first-year procedure students that question toward the end of the course. They seem baffled by it. I do not fault them for being uncertain because, although it seems to be a simple question, I always have been uncertain about the answer. What are courts really for? I wish I could ask Alvin. Is the answer dependent on the movements of time, changes in societal conditions, and the self-interest of the participants? In part, most certainly. There obviously have been seismic changes in the law and the legal profession in my lifetime in terms of demographics, economics, and culture. Entire new fields of law have emerged; others have been transformed; and some have been eclipsed. We now have massive law firms, some are global. 10 There even are some large and financially strong plaintiffs’ firms. Gender, race, and other professional barriers have been lowered but not eliminated so that the bench, bar, and law schools are far more diverse than in my youth; the same is true of those who appear in court. The scale of cases and the legal fees they generate have escalated beyond anything I could...