Substance v. Procedure

This is my last post on Prawfsblawg (for now, at least).  I have thoroughly enjoyed my opportunity to blog here, and I want to thank Dan Markel for making it possible.  I hope I can come back in the future!

I want to end my time here in a blaze of glory, so I conclude with probably the most difficult part of the argument I present in my draft article, "Mass Torts and Due Process."  It concerns whether my proposal satisfies not only the Due Process Clause, but the dreaded Rules Enabling Act.  

To recap, in my prior posts on my draft (see here, here, here, here, here) I argued that mass tort litigation poses a "property" problem.  Because the mass tort claim, or "chose in action," is individually owned by the numerous plaintiffs, collective action problems prevent the plaintiffs from coordinating their suits to optimize their investments in common issues.  This leads not only to suboptimal recovery for the plaintiffs, but suboptimally deters the defendant, leading to more mass torts.  In fact, this self-defeating behavior can be individualized if it is understood as a conflict between an individual's pre-tort preference for collective investment and control over the claims (and thus optimal deterrence) and the individual's post-tort preference for individual control, or autonomy, over the claim (since the tort cannot be undone, and its every man for himself in terms of recovery).  To solve the problem, the legal title of the plaintiff's claims must be coercively collectivized to ensure optimal deterrence.  This can be achieved through the use of a mandatory class action, which assigns collective control over the claims to a class attorney.  

But if the Due Process Clause prohibits the state from "depriv[ing]" the "life, liberty, and property" without "due process," doesn't a mandatory class action, by definition, "deprive" the "property" of the plaintiffs insofar as it snatches away one stick from the bundle of rights that is the "chose in action?" Moreover, if the "chose in action" is understood as a substantive right, doesn't a mandatory class action rather obviously "abridge, enlarge or modify [a] substantive right?"  The Court intimated in Ortiz that mandatory class actions, which have been limited to cases involving "limited funds" or injunctive relief, should not be extended to mass tort settings because of due process and Rules Enabling Act concerns. Moreover, in Shady Grove, Justice Scalia concluded that class actions under Rule 23 are "rationally capable of classification" as "procedure," but noted that Rule 23 does not violate the Rules Enabling Act "at least insofar as it allows willing plaintiffs to join their separate claims against the same defendants in a class action."

As to Due Process, many rules infringe the bundle of rights that is the "chose in action."  Rule 13, for example, requires a defendant to file a "compulsory counterclaim" in some instances, which arguably infringes the defendant's autonomy over the claim.  This suggests that the Due Process Clause does not prohibit all "depriv[ations]."  In some instances, a "depriv[ation]" is necessary to correct a "depriv[ation]" caused by the status quo.   In fact, such a "depriv[ation]" is no "depriv[ation]" at all, but simply a reflection that the world is imperfect, and no one has a pristine right to "litigant autonomy" to begin with.

Take a limited fund, which arises when a pot of money is insufficient to satisfy all claims to it.  In such situations, you get a race to judgment, with the first filers getting full recovery and the late filers nothing.  To prevent such an arbitrary preference for some plaintiffs over others, some mandatory proceeding (such as a "limited fund" class action or interpleader) is necessary to treat plaintiffs equally, usually through pro rata distribution of the fund.  In fact, Rule 23(b)(1)(B), the provision at issue in Ortiz, permits a mandatory class action if individual actions by some plaintiffs "would substantially impair or impede" the rights of others similarly situated.  Clearly such a proceeding would infringe upon each plaintiff's "autonomy," but the infringement is understood as necessary to correct the "infringement" of the late filers' rights by the first filers.  Again, the world is imperfect, and the mandatory class action is preferable to a race to the judgment.

But if you want to improve upon the status quo, you need an impartial basis by which to compare the status quo to something else.  Mathews v. Eldridge, as interpreted in later cases, suggests one such "balancing" approach that weighs the "private interest[s]" of the affected parties.  Mathews focuses on "risk of error" as the central private interest at stake, but clearly the law of due process contemplates the full panoply of interests.  Pro rata distribution, by definition, is inaccurate, but nevertheless preferred.  

Thus, by tweaking Mathews, I argue that mandatory class actions do not violate due process because they improve upon a suboptimal status quo.  Like in "limited fund" contexts, individual actions can "substantially impair" the interests of the others in the class by destroying the economies of scale necessary to put the plaintiffs on equal footing with the defendant.  Moreover, we can understand mandatory class actions as improving not only the collective interests of the plaintiffs, but their individual interests as well.  Mandatory class actions are justified because they take into account the "private interest" of each individual plaintiff in deterrence, or avoiding the tort altogether.  Thus, the mandatory class action, if it is a "depriv[ation]," is certainly a justified one.  Is it paternalistic?  Of course!  But sometimes we need more than a nudge in the right direction.

The harder issue is the Rules Enabling Act, which, by its terms, prohibits any "abridge[ment], enlarge[ment], or modif[ication] of any substantive right."  As an initial matter, any rule will have an impact that may "abridge, enlarge, or modify" a substantive right.  Thus, as Scalia himself has noted in the Erie context, outcome determinism alone "does not have the power to convert the most classic elements of the process of assuring that the law is observed into the substantive law itself."  But the class action presents a tougher problem.  If we take the "chose in action" as the substantive right, then a mandatory class action clearly is an "abridge[ment]" of it, though whether the "stick" being abridged, in this case litigant autonomy, is "procedure" or "substance" is fuzzier than it would be in other contexts.

I think the best way to address the issue is, again, to acknowledge that the world is imperfect, and argue that the Rules Enabling Act does not stop a court from trying to make it better.  In other words, whatever the distinction between "substance" and "procedure" may be, it does not prohibit a court to use existing "procedure" to make the relevant "substance" a reality, which courts have done so with mandatory proceedings like the "bill of peace" for many, many years.  This will involve being clearer about what the relevant substantive rights are, which, as I argue, includes a right to be free from the tort altogether, a point emphasized by civil recourse scholars in emphasizing that torts are really wrongs.  It will also involve a sensitivity to practical realities and a willingness to use the "manner" in which the rights are enforced in a way that makes those rights a reality.  And if a state or the federal government disagrees, they are perfectly capable of making that disagreement known, as they have done so in the past.  

Of course, envisioning courts as using procedure to respect rights rather than the status quo creates much more than "the feel of a tension," but as the late Robert Cover argued, the Rules have always "embod[ied] a practical philosophy, one which liberates the courts to achieve substantive ends."  And, frankly, it is the only vision of the rules, and civil procedure in general, that is worth giving a damn about.

And with that, I am off!  Thank you all for reading!