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Tuesday, August 21, 2012

Procedural Siloing

So, in the wake of finishing my latest article, I’ve been thinking about doctrinal silos—areas where principles have evolved in ways that don’t conform to mainstream understandings developed elsewhere. 

Siloing is a particular problem in the constitutional law of civil procedure.  It’s one that is explored in this great article by Allan Erbsen, which focuses on personal jurisdiction, one of the most bizarre  doctrinal silos out there.  But there are plenty of other areas in the procedural field where siloing is a serious problem.   

Proceduralists, I think, will readily admit this is true.  But what causes it?    It is not an attractive phenomenon--no one likes cross-doctrinal inconsistency.  But it is depressingly persistent enough in the procedural field to make me think there are systemic reasons for it. 

Professor Erbsen, who focused on personal jurisdiction, suggested a curricular explanation.    As an accident of first-year curricular development, personal jurisdiction is a Civil Pro topic.   As a result, personal jurisdiction ends up in Civ Pro treatises and casebooks, not in Con Law treatises and casebooks.  The result… there is no cross-talk between the different fields.  Insights that refine our understanding of federalism or  separation of powers surge forward in the field of Con Law.  But sheltered in the Civ Pro cove, personal jurisdiction bobs along unaffected.

This is totally plausible.  But, it’s not the only possible explanation.  Below the break are some others I’ve been thinking about.

 Procedure as a Reformist Beachhead.    Because procedure is often perceived (sometimes unfairly!) by non-proceduralists as small-ball, it may be viewed as a low-resistance beachhead for factions of the Court seeking to shift the direction of doctrine in other, bigger stakes areas.  The result is that procedure ends up being a kind of conceptual Island of Misfit Toys:  It  gets saddled with lots of early, strained, experimental, half-baked opinions steathily attempting doctrinal revolutions that end up playing out in other different fields. 

The classic example is Pennoyer v. Neff.  As matter of first impression, it is not obvious why due process  became the hook for defining the constitutional scope of states’ jurisdiction.  It ended up as such because, in Pennoyer, Justice Field, smarting from his defeat in the Slaughter-House Cases, was using the driest of dry personal jurisdiction cases to smuggle in his controversial theory of substantive due process.  Once that beachhead was seized, the theory could be extended in other, far-afield cases down the road.    The result?  Personal jurisdiction doctrine gets saddled with Justice Field’s mystifying blend of due process language and territoriality concerns, rather than developing, as it should have, as an outgrowth of federalism and state sovereignty principles.

 Procedure as Bottom-Up Law.  Procedure also isn’t subject to effective Supreme Court control.   This is a function of limits on interlocutory appeals, plus the sheer mind-numbing volume of many types of interlocutory procedural rulings.  There are just too many of them and too few opportunities for appellate review.  As a result, SCOTUS can’t  effectively police the development of legal principles that intersect with those rulings.   

The upshot …. Procedural law is bottom-up law.  It tends to develop at the trial court level, not the Supreme Court level.    Twiqbal is an example.  The pleading principles announced in Twiqbal had already gelled over the 1990s and early aughts in federal trial courts.  As I note here (as have others elsewhere), SCOTUS didn’t create that shift.  It ratified it after the fact.    

One result of this kind of drift:  In the hothouse environment of trial management, free from much effective appellate oversight, familiar principles that play out across several fields can go on odd random walks.   

The way due process has developed as a check on class actions might be an example.  It is not obvious why due process guarantees class members a right to control their own claims, at least to the thoroughgoing extent that current law suggests. (This article by Sergio Campos makes this point  in thorough and convincing detail).  At a minimum, the development of due process as a restraint in the class field seems oddly disconnected from the procedural due process balancing framework the Court set out in cases like Connecticut v. Doehr.  And, understood as an application of  substantive due process, class members’  opt out rights have developed without the kind of searching historical inquiry typical of the Courts’ modern substantive due process opinions (e.g. Glucksberg).    

I suspect that what’s going on is that undertheorized appeals to due process proved to be a quick-and-dirty hook for counsel casting about for ways to advocate limits on mandatory class proceedings in the 1980s and 1990s.  And, in the era before Rule 23(f), minimalist due process decisions worked well enough for time pressured trial courts that weren’t in fear of searching appellate oversight. Two decades of repetition, first in briefs, then in lower court opinions, turned the idea that due process protects litigants' opt out rights into received wisdom. And all without any SCOTUS opinion that has ever explained how this conclusion fits the broader due process framework it had carefully developed in other areas.

 Procedure’s Transition Cost Problem.  The costs of switching to new doctrinal frameworks tend to be much higher in the procedural field.  This is again a function of volume.  Once, say, personal jurisdiction doctrine veered off in a bizarre due process direction, the cost of switching to some totally different framework is potentially huge—everyone would have to suss out how to apply the new framework  at the beginning of a lawsuit, and the number of lawsuits filed annually in which this must be done is astronomical.  Big doctrinal shifts can as a result generate huge amounts of research costs for litigants and satellite litigation for courts that can take years to work pure. 

Concerns about administrative costs and their equitable distribution  in turn may lead courts toward doctrinal conservatism—favoring changes that tend to preserve, rather than unsettle, familiar rules.  The upshot:  Doctrinal turns, however odd, tend to stick, even if it leads to a body of doctrine  that becomes conceptually orphaned from the way similar principles have worked out in other areas. 

Procedure as a Safe Harbor for Unprincipled Advocacy. Often, extending principles from one field to another yields a preference reversal.  Say, for example, that commonly accepted versions of originalism, applied to due process, undermines due process arguments against class litigation made by corporate defendants.   (And let’s just posit, for the sake of argument, that conservatives love corporate defendants!)  At the same time, let’s assume the same originalist due process arguments have implications outside the procedural field that favor conservatives.  If both conservatives and liberals are outcome oriented, you can again expect these originalist arguments won’t be made. Conservatives won’t make them because they don’t like the outcome.  Liberals won’t make them because they don’t the methodology and its broader implications elsewhere.    

The accusation of being unprincipled is usually a check against this sort of thing—to avoid that damning charge, people who strongly advocate a principle in one area feel compelled to bite the bullet and accept its extension in others, outcome be damned.   But the more procedural law is freighted with idiosyncrasies and doctrinal quirks as a result of the other sources of siloing, the more accustomed we become to thinking of procedure as a conceptual oddball.  The result…. the reputation costs for advocates of a particular principle or methodology may be much lower if they do not press for a consistent application of their preferred principles in the procedural field.

Posted by Mark Moller on August 21, 2012 at 10:35 PM in Civil Procedure, Constitutional thoughts | Permalink


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Marty Redish made arguments similar to Allan's in talking about the Seventh Amendment civil jury; it was a mess because it had been delegated to procedural professors rather than con law professors.

As another example of civ pro in your beachhead category, that somewhat explains the dispute between Brennan and Scalia in Burnham--it was a fight about what due process should mean in a case decided in Brennan's last term on the Court and Scalia's fourth.

Posted by: Howard Wasserman | Aug 21, 2012 10:54:53 PM

The lack of doctrinal consistency, or consistency with the text of the Rules, might float for now, but it is laying minefields for later.

Posted by: Bruce Boyden | Aug 22, 2012 11:10:27 AM

Howard: Thanks for the head's up on Redish's piece. I agree Burnham might fit in that category (I didn't add it because the post was already running too long as it was). But I agree that both Brennan and Scalia were using Burnham to skirmish, in particular, with an eye on the fate of Roe--Casey was still over the horizon in 1990. And when Burnham was decided, anxiety that Bush Sr. would be appoint the fifth vote to overturn Roe was becoming intense.

Bruce: I agree, at least w/r/t to larger con law issues (federalism, due process etc.) that intersect with procedure--I'd also prefer to see more coherence across doctrines.

Posted by: Mark Moller | Aug 22, 2012 8:36:36 PM

Are these Con Law professors who are so exalted over we Civ Pro professors in earlier posts proud of "their" work on the Religion Clauses, Free Speech (Citizens United), Second Amendment, etc, etc. Good things those doctrines aren't "a mess"! Thanks to all you Con Law folks for avoiding such problems :)

Posted by: David Levine | Aug 23, 2012 2:01:53 AM

David: As a professor who does both civ pro *and* some con law (particularly free speech), I'll own the mess in both areas. So, too, would Redish.

Posted by: Howard Wasserman | Aug 24, 2012 12:37:15 AM

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