Brooklyn Law School BrooklynWorks Faculty Scholarship 2012 The hS adow Rules of Joinder Robin Effron Brooklyn Law School, [email protected] Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Other Law Commons Recommended Citation 100 Geo. L. J. 759 (2011-2012) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. The Shadow Rules of Joinder ROBIN J. EFFRON* The Federal Rules of Civil Procedure provide litigants with procedural devices for joining claims and parties. Several of these rules demand that the claims or parties share a baseline of commonality, either in the form of the same "transactionor occurrence" or a "common question of law or fact." Both phrases have proved to be notoriously tricky in application.Commentators from the academy and the judiciary have attributed these difficulties to the context- specific and discretionary nature of the rules. This Article challenges that wisdom by suggesting that the doctrinal confu- sion can be attributed to deeper theoretical divisions in the judiciary, particu- larly with regardto the role of the ontological categories of "fact" and "law." These theoretical divisions have led lower courtjudges to craft shadow rules of joinder "Redescription" is the rule by which judges utilize a perceived law-fact distinction to characterizea set of facts as falling inside or outside a definition of commonality. "Impliedpredominance" is the rule in which judges have taken the Rule 23(b)(3) class action standard that common questions predominate over individual issues and applied it to other rules of joinder that do not have this express requirement. After demonstrating the instability of the shadow rules, this Article suggests that the Rules drafters move away from a commonalities approach to joinder and toward a system in which eachjoinder directive contains criteria that stress the unique purpose of each joinder device and that account for the different managerial challenges that judges face in granting or denying joinder under each device. Such rules would not remove the delicate context-specific determi- nationsfrom judges but would result in greatertransparency and consistency of joinder decisions. TABLE OF CONTENTS INTRODUCTION .......................................... 760 I. JOINDER IN THE FEDERAL COURTS: CuRRENT THEORY AND DOCTRINE ...................................... 766 * Associate Professor of Law, Brooklyn Law School. @2012, Robin J. Effron. I am grateful to Fred Bloom, Ed Brunet, Alexandra Lahav, Lisa Bernstein, Sergio Campos, Lumen Mulligan, Christopher Serkin, Stephen Subrin, Liz Schneider, Elizabeth Willse, and Rebecca Kysar for commenting on earlier drafts of this paper, and for the helpful insights I received when presenting this paper at the Northeast Regional Scholarship and Teaching Development Workshop at Albany Law School, the Legal Scholar- ship Workshop at the University of Chicago Law School, the Brooklyn Law School Faculty Workshop, the 2011 Law and Society Annual Meeting, and the 2012 AALS Annual Meeting, Civil Procedure Section Panel. Elizabeth Guidi, Elina Shindelman, and Jennifer Reynolds provided excellent research assistance. I also thank Dean Michael Gerber for support from the Dean's Summer Research Fund. 759 760 THE GEORGETOWN LAW JOURNAL [Vol. 100:759 A. WHY JOINDER? THE TUG OF WAR OF BROAD POLICIES . .......... 767 B. INTERPRETING THE RULES OF JOINDER ................... 770 II. THE SHADOW RULE OF REDESCRIPTION: (MIS)USING THE LAW-FACT DISTINCTION ........................................ 773 A. REDESCRIPTION EXAMPLE # 1: RULE 13(A) COMPULSORY COUNTERCLAIMS AND THE STORY OF THE LOUSY LENDER ...... 776 B. REDESCRIPTION EXAMPLE # 2: RULE 15(C), RELATION BACK, AND THE EXPANDING EMPLOYMENT TRANSACTION .............. 783 III. THE SHADOW RULE OF IMPLIED PREDOMINANCE ............... 789 A. RULES 20(A) AND 42(A): ECHOES OF THE OPT-OUT CLASS ACTION IN PERMISSIVE JOINDER AND INTRADISTRICT CONSOLIDATION ...... 790 B. WAL-MART V. DUKES: HOW THE SUPREME COURT VIEWS IMPLIED PREDOMINANCE .................................. 794 C. THE UNCERTAIN FUTURE OF IMPLIED PREDOMINANCE ......... 802 IV. BEYOND THE SHADOW RULES ............................ 804 A. THE NATURE OF THE SHADOW RULES .................... 804 B. RETHINKING THE COMMONALITIES APPROACH: REPLACING STANDARDS WITH STANDARDS ........................ 810 C. PATHS FORWARD .................................. 814 CONCLUSION ............................................. 818 APPENDIX ................................................. 819 INTRODUCTION On a cold winter's day, Jessica and her friend Katie decide to make a quick trip in Jessica's car to the supermarket. Upon arrival in the supermarket's icy parking lot, Jessica's car collides with another vehicle driven by Leo. All three sustain physical injuries, Jessica's car is totaled, and Leo's car requires substan- tial repairs. Any first-year law student can quickly spot a number of claims: Jessica and Katie might sue Leo for negligence resulting in personal injury; Jessica might sue Leo for the property damage to her car; Leo and Katie might sue Jessica for negligence resulting in personal injury; and Leo might also believe that Jessica is responsible for the property damage to his car. All three might believe that the supermarket was negligent in maintaining its parking lot during the storm or that a defect in one of the automobiles led to the accident. Today, we take it for granted that Jessica, Katie, and Leo would not have to 2012] SHADOw RULES OF JOINDER 761) proceed individually, claim by claim, in separate lawsuits to seek recovery. Instead, the modem civil procedure system allows them to combine their claims using an amalgamation of joinder of parties, joinder of claims, and the assertion of counterclaims and crossclaims. The reasons for these procedural devices are well-worn: it benefits the parties and the judiciary to reap the efficiencies of litigating cases together rather than forcing each party to proceed separately, asserting one claim at a time. This proposition seems uncontroversial enough, and a world that limits the boundaries of a lawsuit to one plaintiff, one defendant, one claim is as alien to modern American lawyers as are the rules of a foreign legal system itself. The Big Debates about joinder largely concern Big Cases, the realm of complex litigation occupied by class actions and large numbers of cases consolidated for pretrial purposes as multidistrict litigation (MDLs). Recognizing the pressures that complex litigation can place on claimants, defendants, and the judiciary, scholars and judges have struggled to answer the question: How common is common enough to gain the efficiencies of litigating large numbers of claims together before a case becomes too unwieldy?' The stakes of this debate are high because the decision to certify a class or to allow a group of cases to proceed as an MDL is sometimes tantamount to a decision to allow the cases to proceed at all 2 or to pave the way for a large settlement by a defendant.3 Somewhere between the obviousness of joining together the claims of a few persons in a car crash and the serious theoretical and empirical questions posed by class actions or large consolidated actions with thousands of claimants lies a world of joinder uncertainty. Litigants are taught to rely on the liberal rules of joinder to build their lawsuits, but these rules are not without limits. At some point, the extra claims and parties are too remote or their presence is too disruptive, and joinder fails.4 1. See, e.g., Edward K. Cheng, Essay, A Practical Solution to the Reference Class Problem, 109 COLUM. L. REV. 2081, 2095-97 (2009) (suggesting a model for using statistical proof for the reference- class problem); Richard A. Nagareda, Class Certificationin the Age ofAggregate Proof,84 N.YU. L. REv. 97, 98-99 (2009). See generally ROBEnr G. BoNE, CIVIL PROCEDURE: THE EcoNoMics OF CIvIL PROCEDURE 259-98 (2003) (considering the efficiency of class actions); John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 COLUM. L. REV. 1343 (1995) (same); Richard L. Marcus, Confronting the Consolidation Conundrum, 1995 BYU L. REV. 879 (assessing empirical evidence for efficiency in consolidated litigation); Judith Resnik, Lessons in Federalismfrom the 1960s Class Action Rule and the 2005 Class Action FairnessAct: "The PoliticalSafeguards" of Aggregate TranslocalActions, 156 U. PA. L. REv. 1929 (2008) (considering the efficiency of class actions). 2. See Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 338-39 (1980) (explaining negative-value suits where no plaintiff has an incentive to file and pursue her own lawsuit due to the small amount of expected recovery); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 161 (1974) (observing that, in an action in which each plaintiff's claim averaged $70, "[n]o competent attorney would undertake [the plaintiff's] ... action to recover so inconsequential an amount"). 3. See Nagareda, supra note 1, at 99 ("[C]lass settlements can be quite significant, potentially involving dollar sums in the hundreds of millions or requiring substantial restructuring of the defen- dant's operations."). 4. The addition of claims or permissive counterclaims between existing parties generally does not require any inquiry into their relatedness. See FED. R. Civ. P. 18 (joinder of claims); FED. R. Civ. P. 762 THE GEORGETOWN