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Judicaturethe Scholarly Journal for Judges ALSO: FEDERAL JUDGES & OPINION WRITING | THE RIGHT TO SELF-REPRESENTATION | OUT-OF-CONTROL POLICING? VOLUME 101 NUMBER 3 AUTUMN 2017 JUDICATURETHE SCHOLARLY JOURNAL FOR JUDGES Bold and persistent reform Why pilot projects may be the surest – if not the fastest – way to ensure the success of civil rules amendments BY JEFFREY SUTTON & DEREK WEBB Published by the Duke Law School Center for Judicial Studies Published by the Duke Law Center for Judicial Studies DIRECTOR THE FEDERAL RULES OF CIVIL PROCEDURE SHOULD BE ABROGATED. I speak John K. Rabiej not of the criticisms of the rules as a failure to ensure the just, speedy, and inexpensive deter- mination of litigation — though many distinguished lawyers and jurists have sadly moved in ACADEMIC DIRECTORS that direction. No, I direct my lament at those entrusted with the responsibility to ensure the Jack Knight vitality of the rules. Frederic Cleaveland Professor of Law and Political Science, Duke University Providing uniform procedures that are consistently followed throughout the country is the raison d'être of the federal civil rules. An individual in Texas should not be treated procedurally Mitu Gulati Professor of Law, Duke University differently than an individual in California with the same lawsuit. Over time, the rules have grudgingly accepted limited exceptions to address unique circumstances. But what was once a Margaret H. Lemos Robert G. Seaks LLB’34 Professor of Law, small pool of exceptions has now grown to a yawning chasm that is swallowing up the whole. Duke University More than 110,000 cases are pending in 20 mass-tort MDLs. That number represents 33 percent of the entire pending federal CENTER BOARD civil caseload. These cases implicate enormous financial stakes Carolyn Kuhl that affect the U.S. economy. Yet no civil rule provides uniform Judge, Superior Court of California, AS I SEE IT County of Los Angeles procedures that can be applied consistently to MDL litigation throughout the country. Instead, MDL transferee judges wield virtually total discretion under John W. Lungstrum Judge, U.S. District Court, District of Kansas the guise of pretrial management. Left largely to their own devices, transferee judges have been compelled to develop proce- Lee H. Rosenthal Chief Judge, U.S. District Court, dures out of whole cloth to manage complex problems that regularly arise. A hodgepodge set Southern District of Texas of practices has evolved that may have worked for some judges in certain cases but now are indiscriminately adopted by newly designated transferee judges, who most often are handling John R. Tunheim Chief Judge, U.S. District Court, their first MDL. Without rules or official guidance, these judges terminate nearly 90 percent District of Minnesota of the centralized cases, all done under a statute that was intended to centralize cases for pretrial purposes only, primarily discovery. The legal authority for much of their actions is not David F. Levi Dean and Professor of Law, self-evident. Duke University Laissez-faire advocates dismiss any need for new rules, contending that Rule 16(c)(2)(L) is all that is needed to establish legitimacy. That rule authorizes a judge to adopt “special procedures MANAGING EDITOR for managing potentially difficult or protracted actions that may involve complex issues, multi- Melinda Myers Vaughn ple parties, difficult legal questions, or unusual proof problems.” Based on this slender reed, they defend the status quo and MDL practices that: (1) establish CENTER COORDINATOR multi-million-dollar common-benefit funds, assessing hundreds of unwilling parties propor- Ann M. Yandian tionate costs, including parties in state-related litigation; (2) impose responsibilities on lead Editorial Assistants counsel that may conflict with fiduciary duties owed their clients; (3) recognize some judicial Leah Brenner, Glenn Chappell, responsibility to review the fairness of global settlements albeit without explicit authority to do Matt Eible, Lora Beth Farmer, so, unlike Rule 23 class action settlements; (4) create and amply compensate steering commit- Janse Haywood, Zachary Newkirk tees consisting of 10-20 lawyers who peremptorily manage the litigation on behalf of hundreds of other lawyers; (5) develop screening methods that filter out meritless complaints filed as tag-alongs; and (6) hold bellwether trials whose rulings pressure parties to settle with little fear of appellate review. All under the Rule 16 rubric. By this argument, we might as well dispense with the body of rules and have only a single rule that authorizes a judge to develop procedures JUDICATURE that are “just.” VOLUME 101, NUMBER 3 It is no surprise that experienced judges view the possibility of rules governing MDLs as obstacles, because they narrow that judge’s discretionary authority. Plaintiff lawyers are equally ISSN 0022-5800 satisfied with the existing MDL practices — though they, on occasion, are experiencing © 2017 Duke University School of Law. what defense lawyers have begun to experience, that is, a transferee judge bent on forcing an All rights reserved. This publication, or any part thereof, may not be reproduced without written permission unwanted settlement. These judges and lawyers join institutional forces, including the opposi- from Duke University. Views expressed herein do not tion of JPML members, which pose a formidable defensive array. necessarily reflect the views of Duke Law School Rather than cede the civil rules to certain irrelevance as the exceptions consume the whole, as an entity or of its faculty. better to end the downward spiral and start afresh. Requests for reprints may be sent to: Duke Law Center for Judicial Studies 210 Science Drive | Box 90362 Durham, NC 27708-0362 Phone: 919-613-7073 | Fax: 919-613-7158 Email: [email protected] John K. Rabiej, Director, Duke Law Center for Judicial Studies Online: judicialstudies.duke.edu JUDICATURE VOL. 101 NO. 3 IN THIS EDITION Departments 2 EDITOR’S NOTE, BRIEFS, HONORS 6 ON E-DISCOVERY WHAT WILL AI MEAN FOR YOU? George Socha 12 9 THE STORIED THIRD BRANCH GENTLEMAN JUDGE AND MAGNIFICENT MAN 64 Gene E.K. Pratter 75 REDLINES BULLET POINTS, YES. UNNECCESSARY DATES, NO. Features Joseph Kimble 76 BOOK REVIEW 12 OUT-OF-CONTROL POLICING – BOLD AND PERSISTENT REFORM ARE JUDGES TO BLAME? THE 2015 AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE Lee H. Rosenthal AND THE 2017 PILOT PROJECTS Jeffrey S. Sutton & Derek A. Webb 80 LASTLY KEEPING THE BALANCE THROUGH 22 CHANGING TIDES A CLASH OF CONSTITUTIONAL VALUES Stewart Walz WHEN SHOULD TRIAL JUDGES CONSIDER CONSTRAINING A DEFENDANT’S RIGHT TO SELF-REPRESENTATION? Stephen C. Leckar 32 NICE TRY WHEN CONTRACTS SEEK TO PREEMPT JUDICIAL DISCRETION J. Travis Laster & Kenneth A. Adams 40 WHETHER, WHEN, AND WHAT TO WRITE FEDERAL JUDGES AND OPINION WRITING (AN IMAGINED CONVERSATION) D. Brock Hornby 52 52 ROUNDTABLE: THE STATE OF THE JUDICIARY David F. Levi with Carolyn B. Kuhl, Margaret H. Lemos, H. Jefferson Powell, Don R. Willett & Ernest A. Young 9 64 32 CRUSHED SOCIAL SECURITY LITIGATION IN THE FEDERAL COURTS Jonah B. Gelbach & David Marcus JUDICATURE2 VOL. 101 NO. 3 “Everybody wants to rule the world.” — TEARS FOR FEARS SONG LYRIC (1985) EDITOR IN CHIEF “Why is judicial restraint so important? . [T]he simplest response is by all odds the best. Our system of JAMES GRIFFITH governance gives judges both life tenure and virtually the last word on a document that is at once supremely Oneida Family County Court – Rome, New York important and maddeningly inexact. Because the normal constraints on the exercise of power are lacking, America places a big bet that judges will restrain themselves. But this bet goes against eons of human BOARD OF EDITORS experience . .” — J. HARVIE WILKINSON III, COSMIC CONSTITUTIONAL THEORY (2012), PAGE 7 DAVID JONES Chief Judge, U.S. Bankruptcy Court, IN A RECENT ARTICLE CONCERNING THE SUPREME COURT CONFIRMATION Southern District of Texas PROCESS, Justice Ruth Bader Ginsberg — my former law school professor — was recently quoted as saying she hoped that in her lifetime “we would DAVID NUFFER Chief Judge, U.S. District Court, District of Utah get back to the way it was.” The context was the observa- tion that we had gone from the Senate having confirmed MEMBERS OF THE BOARD the superbly qualified (though polar opposites) Justice DINAH ARCHAMBEAULT Ginsberg nearly unanimously and Justice Antonin Scalia Judge, Twelfth Judicial Circuit Court, Illinois unanimously, to an essentially party line 54-45 vote to confirm the superbly qualified Justice Neil Gorsuch. As JENNIFER BAILEY Judge, 11th Judicial Circuit Court, Florida this trend has emerged, the commentariat regularly gnashes its collective teeth and rends its garments over the partisan CHERI BEASLEY Justice, Supreme Court of North Carolina nature of confirmation and resulting “politicization” of the Supreme Court (and other courts). FREDERIC BLOCKX What is often left undiscussed is the degree to which Judge, Commerical Court, Belgium this is a self-created problem for the judiciary as a govern- JOE BOATWRIGHT mental institution. Many (and perhaps most) of the cases Judge, Seventh Judicial District, Florida that reach the Supreme Court require the justices to decide, ROBERT BRUTINEL FROM THE at some level, whether to honor the decisions of the elected Justice, Arizona Supreme Court branches of government or instead to find some basis in the DAVID COLLINS EDITOR IN CHIEF Constitution not to. This brings to mind a remark from Justice, High Court of New Zealand another of my law school professors, Louis Lusky, who — MARK DAVIS despite being a law clerk to Justice Harlan Fisk Stone, a dedicated New Dealer, and a civil rights Judge, North Carolina Court of Appeals litigator —complained in his class that “the Warren Court seemed to think it should be running TIMOTHY DEGIUSTI the whole country.” Current complaints of supposed Supreme Court overreach come from both Judge, U.S. District Court, the left and the right (as in Citizens United and U.S.
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