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Thursday, June 18, 2015

Procedural Triage

In a world of overworked judges, tight budgets, and crowded dockets--or "process scarcity"[1]--do some people deserve to participate in hearings more than others? According to Matthew Lawrence's provocative and thoughtful new article Procedural Triage, 84 Fordham L. Rev. (forthcoming 2015), the answer to that question is "yes."  

One dominant idea in American procedure is that every person deserves a "day in court" before the state can impose a particularized, binding judgment on that person.[2]  We compromise that goal sometimes--skimping on some procedures, while providing at least "some kind of hearing." But when we do so, we usually treat every claimant alike. Procedural Triage argues that we shouldn't.  This is because, in some cases, individuals derive more personal benefit from a full hearing than would-be corporate claimants--particularly in backlogged courts that simultaneously serve both large numbers of unsophisticated, aggrieved claimants and very sophisticated business interests.  Lawrence observes:

For example, in Medicare, an individualized hearing to reconsider a denial of coverage for a motorized wheelchair has significant inherent value when it gives the satisfaction of having been heard to a frustrated beneficiary, win or lose. But it has much less inherent value, if any, when provided to a wheelchair manufacturer that routinely appeals hundreds of denied claims each year simply in order to maximize revenue. Yet provider appeals make up 87% of Medicare’s appeals workload.

Accordingly, Procedural Triage recommends that court systems give different plaintiffs the option (or in extreme cases, a mandate) to go down different procedural roads: full blown hearings for some and something-short-of-that for others.  In so doing, Lawrence highlights Medicare's new "trial by statistics" program as a case study. Under this system--which I describe here--medical contractors, hospitals and other businesses with large numbers of identical Medicare claims may try those cases using statistical tools, while individuals retain their right to a full and expedited "day in court." Lawrence argues that this kind of "procedural triage" may enhance, rather than undermine, due process values for the entire system.

Others have questioned whether procedural rules should be the same for everyone.[3] Following the lead of Marc Galanter,[4] they have asked why procedural rules should be the same for claimants with different resources. Lawrence's paper contributes to this literature by asking why people who value process differently should follow the same rules (including even public and closely-held corporations).  Taken to its natural conclusion, Procedural Triage has interesting implications for pro se litigation programs in federal court, court-annexed arbitration, and other innovative civil and administrative proceedings.  Three additional thoughts.  

First, to what extent do we already do "procedural triage"? Private contracts already offer many forms of "procedural triage" described in Lawrence's paper--resolving disputes in different forums, shifting burdens of proof, altering evidentiary rules, and changing or streamlining discovery obligations. [5] And as Lawrence discusses, public and private mass tort resolution programs have long offered multiple "tracks" to streamline disputes for some, while guaranteeing others greater rights to participate--from Agent Orange and the Dalkon Shield Trust to the September 11 Fund and BP's Gulf Coast Claim Facility.  The ostensible goal of "procedure through contract" is, like "procedural triage," to give people more procedural options to resolve their disputes they way they like.  Some, however, worry that those private alternative procedures may undermine the people's substantive obligations or rights, while stunting the development of precedent.  To the extent those concerns apply here, what limits should exist for public forms of alternative dispute resolution?  And how will public forms of "procedural triage" impact private settlement alternatives?  

Second, can procedural triage lead to a situation that requires even more procedural triage?  Procedural Triage carefully examines many of the potential side-effects of a system that offers different procedural tracks for different people--including whether different rules will increase transaction costs, lead to more errors or discourage hospitals from effectively responding to patients' needs.  Here's one more possible problem: lowering the barriers to filing cases can sometimes lead to more cases and more costs (or what some commentators call "diseconomies of scale.") [6] As Procedural Triage observes, the current backlog of cases in Medicare is, in part, due to the Affordable Care Act, which instructed Medicare to step up its efforts to scrutinize claims, both through fraud and abuse enforcement.  Can we adopt "procedural triage" at the back-end without perversely encouraging more government enforcement at the front end?  Diseconomies of scale may mean, in some cases, courts and agencies may  need to weigh which combination of procedural triage--trials by statistics, mediation, voluntary coordination of discovery or better pretrial processing--can achieve the same benefits without the creating even more backlogs.

Third, and related, does the source of "process scarcity" matter?  Court systems are not static.  Does it matter whether courts or agencies are hamstrung because a legislature dramatically (1) cuts funding for hearing officers, (2) expands rights for litigants, or (3) requires an enforcer to crack down on potential offenders?  Should we be less willing to adopt forms of procedural triage in any of those cases?  Or would the failure of a court system to adopt such techniques simply push those cases into other, less public and undesirable forms of settlement?    


[1] Robert G. Bone, Statistical Adjudication: Rights, Justice, and Utility in a World of Process Scarcity, 46 Vand. L. Rev. 561, 630 (1993)

[2]Ins. Co. v. Morse, 87 U.S. (20 Wall.) 445, 451 (1874) (“A man may not barter away his life or his freedom, or his substantial rights.... In a civil case...any citizen may no doubt waive the rights to which he may be entitled. He cannot, however, bind himself in advance by an agreement, which may be specifically enforced, thus to forfeit his rights at all times and on all occasions, whenever the case may be presented.”).

[3] See, e.g., Judith Resnik, Precluding Appeal, 70 Cornell. L. Rev. 603, 622 (1984); Gillian K. Hadfield, Exploring Economic and Democratic Theories of Civil Litigation: Differences Between Individual and Organizational Litigants in the Disposition of Federal Civil Cases, 57 Stan. L. Rev. 1275 (2004); Issachar Rosen-Zvi & Talia Fisher, Overcoming Procedural Boundaries, 94 Va. L. Rev. 79 (2008).

[4] Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 L. & Soc'y Rev. 95 (1974).

[5] See Robert Bone, Party Rulemaking: Making Procedural Rules Through Party Choice, 90 Tex. L. Rev. 1329, 1380 (2012);  Jaime Dodge, The Limits Of Procedural Private Ordering, 97 Va. L. Rev. 723, 729 (2011); Daphna Kapeliuk & Alon Klement, Contracting Around Twombly, 60 DePaul L. Rev. 1, 1-2 (2010); Henry S. Noyes, If You (Re)Build It, They Will Come: Contracts to Remake the Rules of Litigation in Arbitration's Image, 30 Harv. J.L. & Pub. Pol'y 579, 612 (2007); Judith Resnik, Procedure as Contract, 80 Notre Dame L. Rev. 593, 622-27 (2005).

[6] Compare Richard A. Epstein, The Consolidation of Complex Litigation: A Critical Evaluation of the ALI Proposal, 10 J.L. & Com. 1, 15-16 (1990) (arguing consolidation may not be very efficient); Mark C. Weber, Complex Litigation and the State Courts: Constitutional and Practical Advantages of the State Forum over the Federal Forum in Mass Tort Cases, 21 Hastings Const. L.Q. 215, 254-55 (1994) (describing potential for diseconomies of scale when efficiency is “pursued too far”); Francis E. McGovern, An Analysis ofMass Torts for Judges,73 Tex. L. Rev. 1821, 1840 ("If you build a super-highway, there will be a traffic jam") with Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1193, 1196, 1199, 1298 (1982) (describing “diseconomies of scale” in agency proceedings “given multiple layers of decision and review and the temptation to adopt overly rigid norms in order to reduce administrative costs”).

Posted by Adam Zimmerman on June 18, 2015 at 07:59 PM | Permalink


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