Pleading and the dilemmas of modern American procedure

Judicature

Volumn 93, Issue 3, 2009, Pages 109-120

  Burbank, Stephen B ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 76849100179     PISSN: 00225800     EISSN: None     Source Type: Journal    
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References (169)

1. 551 U.S. 308 (2007).
2. 550 U.S. 544 (2007).
3. 129 S. Ct. 1937 (2009).
4. See Act of June 19, 1934, Pub. L. No. 73415, 48 Stat. 1064. As currently codified, the relevant language is:
5. a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals. 28 U.S.C. § 2072(a) (2006).
6. The statutory language in question provides that "the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind [scienter]." 15 U.S.C. § 78u-l(b)(2) (2006). The Tellabs Court's interpretation of "strong inference" was that "an inference of scienter must be more than merely plausible or reasonable-it must be cogent and at least as compelling as any opposing inference." Tellabs, 551 U.S. at 324.
7. The Rules Enabling Act, as currendy codified but reflecting a limitation that has existed since 1934, provides that "(s]uch rules shall not abridge, enlarge or modify any substantive right." 28 U.S.C. § 2072(b) (2006).
8. Sec 28 U.S.C. §1332 (2006).
9. See supra n. 4.
10. See Summary of Proceedings of the First Meeting of the Advisory Committee on Rules (June 20, 1935), available in Records of the U.S. Judicial Conference: Committee on Rules of Practice and Procedure, 1935-1988, No. CI-103-30 at 6-7 (Cong. Info. Serv.) (microforms) (hereinafter Summary of Proceedings).
11. See Edson R. Sunderland, The Grant of Rulemaking Power to the Supreme Court of the United States, 32 MICH. L. REV. 1116, 1128 (1934);
12. Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1135-36 (1982) (discussing Sunderland's revisionist articles and the discussion at the Advisory Committee's first meeting).
13. Act of June 1, 1872, ch. 255, §§ 5 & 6, 17 Stat 196, 197. Sunderland could not attend this meeting. See Summary of Proceedings, supra n. 9.
14. See Summary of Proceedings, supra n. 9.
15. See Stephen B. Burbank, Of Rules and Discretion: The Supreme Court, Federal Rules and Common Law, 63 NOTRE DAME L. REV. 693, 714 n. 140 (1988) (hereinafter Of Rules and Discretion) ("The question whether uniformity necessarily entails trans-substantivity was not addressed probably because it was assumed.");
16. Stephen N. Subrin, How Equity Conquered Common law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909, 956-61 (1987);
17. id. at 995-96 ("Such an integration of procedure and substance, however, would have required a degree of technicality, categorization, and definition that was at odds with the simplicity and uniformity themes the proponents had developed to propel their reforms.");
18. Stephen B. Burbank, The Transformation of American Civil Procedure: The Example of Rule 11, 137 U. PA. L. REV. 1925, 1935 (1989) (hereinafter Transformation) (noting lack of support for that position in legislative history of the 1934 Act or in the long history preceding its enactment);
19. see also Stephen B. Burbank, Procedure, Politics and Power The Role of Congress, 79 NOTRE DAME L. REV. 1677, 1732 n. 248 (2004) (hereinafter Role of Congress) (distinguishing Rule 9(b)). As Professor Bone maintains, the view then obtaining that procedure was independent of substantive law "implied that procedural rules could and should be general in nature and 'trans-substantive.'" Robert G. Bone, Making Effective Rules: The Need for Procedure Theory, 61 OKLA. L. REV. 319, 324 (2008).
20. See, e.g., Robert M. Cover, For fames Wm. Moore: Some Reflections on a Reading of the Federal Rules, 84 YALE LJ. 718, 731 (1975);
21. Burbank, Of Rules and Discretion, supra n. 13 (criticizing insistence on transsubstantivity);
22. Subrin, supra n. 13 (same);
23. Paul A. Carrington, Making Rules to Dispose of Manifestly Unfounded Assertions: An Exorcism of the Bogy of Non-Trans-Subslantive Rules of Civil Procedure, 137 U. PA. L. REV. 2067 (1989) (defending transsubstantivity). Recently, Professor Bone has asserted that "we must bury, once and for all, the thoroughly misguided idea that trans-substantivity is an independent value or ideal for the Federal Rules." Bone, supra n. 13, at 333.
24. See, e.g., Geoffrey C. Hazard, Jr., Discovery Vices and Transsubstantwe Virtues in the Federal Rules. of Civil Procedure, 137 U. PA. L. REV. 2237, 2244 (1989) ("This critique contemplates separate sets of rule for civil rights cases, antitrust cases, routine automobile cases, and so on.").
25. As I have previously noted: "No one I know is suggesting a return to the forms of action or a wholesale rejection of trans-substantive procedure. Some of us, however, are suggesting that it is time both to face facts, in particular the fact that uniformity and trans-substantivity rhetoric are a sham, and to find out the facts, in particular the facts about discretionary justice. A "veil of ignorance" may be an apt metaphor to describe federal rulemaking to date. It is not, I contend, an appropriate normative posture for the rulemakers of the future." Burbank, Transformation, supra n. 13, at 1940-41 (footnotes omitted).
26. See Stephen N. Subrin, Fudge Points and Thin Ice in Discovery Reform and the Case for Selective Substance-Specific Procedure, 46 FLA. L. REV. 27 (1994);
27. Bone, supra n. 13, at 333-34;
28. id. at 334 ("optimal level of generality should be determined not by reference to some trans-substantive ideal, but by balancing the costs and benefits of general versus specific Riles").
29. See, e.g., Stephen B. Burbank, Aggregation on the Couch: The Strategic Uses of Ambiguity and Hypocrisy, 106 COLUM. L. REV. 1924, 1927-31 (2006) (discussing problem of inefficient over-enforcement posed by small claims class actions under Rule 23).
30. Kenneth W. Graham, Jr. The Persistence of Progressive Proceduralism (Book Review), 61 TEXAS L. REV. 929, 945 (1983).
31. See infra text accompanying notes 88, 108.
32. "[A] rule, to have cognitive and normative significance as such, must have an important degree of determinative content to the group to whom it is addressed." GEOFFREY, C. HAZARD, JR., RESEARCH IN CIVIL PROCEDURE 9 (1963).
33. See Burbank, Transformation, supra n. 13, at 1940-41, quoted supra n. 16 ("uniformity and transsubstantivity rhetoric are a sham");
34. Burbank, Of Rules and Discretion, supra n. 13, at 715 ("Federal Rules that avoid policy choices and that in essence chart ad hoc decision-making by trial judges are uniform and hence trans-substanuve in only the most trivial sense.").
35. See Subrin, supra n. 13, passim; Stephen B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorraht, 1 J. EMP. LEG STUD. 591, 597-98 n. 20 (2004) (discussing ties of the two chief architects of the Federal Rules to the Progressive and Legal Realism movements). For another view of "the Progressive drive for procedural uniformity," see Graham, supra n. 18.
36. For a limited exception, see FED. R. CIV. P. 26(a)(1)(B) (exempting eight categories of cases from initial disclosure requirement).
37. See JAMES A. KAKAUK ET AL., RAND INSTITUTE FOR CIVIL JUSTICE, JUST, SPEEDY, AND INEXPENSIVE? AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE CIVIL JUSTICE REFORM ACT 25-27 (1996) ("Differential Case Management"). "The consequence was that almost all general civil cases to which CJRA procedural principles might be relevant were placed in the standard track, if any tracking assignment was made." Id. at 26.
38. See Gregory P. Joseph, Federal Litigation-Where Did It Go Off Track?, available at hup:// www.josephnyc.com/articles/viewarticle.phpP53. "Twenty-five years ago, on January 1, 1983, it cost parties roughly the same to litigate in state and federal court. Plaintiffs chose federal court sometimes for expansive discovery or to get a good judge, even though state court was an available alternative and additur impermissible in federal court. Today, plaintiffs with non-federal causes of action flee federal court, and those with federal claims scour the books for state law analogues."
39. Id See also Stephen B. Burbank, The Complexity of Modern American Civil Litigation, Curse or Cure?, 91 JUDICATURE 163 (2008);
40. infra text accompanying notes 115-16.
41. See EDWARD A. PURCELL, JR., LITIGATION AND INEQUALITY: FEDERAL DIVERSITY JURISDICTION IN INDUSTRIAL AMERICA, 1870-1958, at 256 (1992) ("the. Justices generally if implicitly believed that they should maintain federal jurisdiction over issues and interests that they regarded as having national importance");
42. Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, 156 U. PA. L. REV. 1439, 1532-33 (2008) (suggesting that supposed need to deal with overlapping class actions "may provide cover to those among CAFA's supporters, in and out of Congress, who do not wish to be associated with the notion that the business of the federal courts is business").
43. See Burbank, Role of Congress, supra n. 13, at 1702, 1729, 1731 (discussing judiciary's opposition to various congressional bills containing procedural provisions, including bills that led to the PSLRA).
44. Id. at 1731 (footnote omitted). "[F]ormally uniform" as used here refers not to formalism but to the fact that the Federal Rules are largely uniform only in appearance, not in fact. I also noted: "An objection that invokes "The Enabling Act Process" may simply (albeit fecklessly) signal the judiciary's concern that, given the circumstances in which so much contemporary legislation is enacted, described above, statutory procedure is unlikely to be well made, viewed either discretely or as part of the larger procedural landscape in which it will repose." Id. (footnote omitted).
45. Id. at 1731-32 (emphasis in original) (footnote omitted).
46. Makor Issues & Rights, Ltd. v. Tellabs Inc., 513 F.3d 702, 705 (7th Cir. 2008)). The relevant statutory language is quoted supra n. 5.
47. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 573-74 (2007) (Stevens, J., dissenting) (discussing notice pleading as a response to "[t]he English experience with Byzantine special pleading-rules" and the Field Code's requirement of pleading "'facts' rather than 'conclusions'").
48. 550 U.S. 544 (2007).
49. Id. at 551.
50. 355 U.S. 41 (1957).
51. Id. at 45-46;
52. see Twombly, 550 U.S. at 563 ("[T]his famous observation has earned its retirement").
53. Twombly, 550 U.S. at 555 (quoting Conley, 355 U.S. at 47).
54. Id.
55. Id. at 556.
56. Id. at 564.
57. See id. at 569 n.13.
58. The First, Second, Third, Sixth, Seventh, Tenth, Eleventh, D.C, and Federal Circuits have directly addressed the issue. Others have noticed its effect.
59. See, e.g., Anderson v. Sara Lee Corp., 508 F.3d 181, 188 n.7 (4th Cir. 2007) ("In the wake of Twombly, courts and commentators have been grappling with the decision's meaning and reach.").
60. See Geoffrey P. Miller, Pleading after Tellabs, 2009 WISE. L. REV. 507.
61. Professors Grundfest's and Pritchard's work on the strategic uses of ambiguity by Congress and the federal courts used the PSLRA as the basis for empirical testing of their general hypotheses.
62. See Joseph A. Grundfest & A.C. Pritchard, Statutes with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and Interpretation, 54 STAN. L. REV. 627 (2002). Of particular interest for present purposes are their views that (1) Congress chose to "sidestep," id. at 658, the state of mind required for liability (i.e., recklessness or knowledge?) in favor of tightening the pleading standard required to withstand a motion to dismiss and that (2) the resulting "strong inference" requirement was the subject of intense debate and disagreement and is itself an example of strategic ambiguity. See id. at 652-66.
63. See Stephen B. Burbank, The Costs of Complexity (Book Review), 85 MICH. L. REV. 1463, 1475 (1987).
64. See Burbank, Role of Congress, supra n. 13, at 1724 (noting that "the changes in the rulemaking process in the 1980s that were designed to open it up to more and more diverse points of view, make it more transparent, and diminish the need for congressional involvement, may in fact have facilitated a process of redundancy wherein participants treat rulemaking that is at all controversial as merely the first act").
65. See Burbank, supra n. 44, at 1475.
66. SeeAmchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997) ("The text of a rule thus proposed and amended limits judicial inventiveness. Courts are not free to amend a rule outside of the process Congress ordered, a process properly tuned to the instruction that rules of procedure 'shall not abridge... any substantive right'" (quoting 28 U.S.C. § 2072(b) (2006));
67. Oruz v. Fibre-board Corp., 527 U.S. 815, 861 (1999) ("[W]e are bound to follow Rule 23 as we understood it upon its adoption and we are not free to alter it except through the process prescribed by Congress in the Rules Enabling Act.").
68. See, e.g., Swierkiewicz v. Sorema NA., 534 U.S. 506, 515 (2002);
69. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993) ("Perhaps if Rules 8 and 9 were rewritten today, claims against municipalities under § 1983 might be subjected to the added specificity requirement of Rule 9(b). But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.").
70. One who accepts the view of Twombly suggested here probably should not refer to that case as a "pleading decision" unless the intended audience would understand that the reference was to the sufficiency of the complaint to withstand a motion under Rule 12(b) (6), as opposed to Rule 12(e) ("Motion for a More Definite Statement").
71. "More probably, Twombly is an exercise in strategic ambiguity that empowers the lower federal courts to dghten pleading requirements in cases or categories of cases that augur similar discovery burdens (or are otherwise disfavored), while preserving deniability in the Court through the use of its discretionary docket to correct perceived excesses (as in Erickson)." Editorial, The Devil in the Details, 91 JUDICATURE 52 (2007). The author was chair of the Editorial Committee of the American Judicature Society at the time this editorial was published. The reference is to Erickson v. Pardus, 551 U.S. 89 (2007), a case decided a few weeks after Twombly (without argument and per curiam) in which the Court reversed the Tenth Circuit's affirmance of a judgment dismissing a prisoner's complaint under Rule 12(b) (6). For reasons why Erickson did not provide much comfort for those concerned that Twombly was generally applicable (not confined to antitrust cases), see Editorial, supra. On strategic ambiguity, see supra n. 43.
72. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1954 (2009) (Souter.J., dissenting);
73. id at 1961 (Breyer, J. dissenting).
74. See Iqbal v. Hasty, 490 F.3d 143, 147-49, 165, 174-76 (2d Cir. 2007), rev'd, Ashcroft v. Iqbal, 129 S. Ct 1937 (2009).
75. Id. at 175-76;
76. see also id. at 166.
77. 128 S. Ct. 2931 (2008).
78. Brief for Petitioners at 15, Ashcroft v. Iqbal, No. 07-1015 (U.S. Aug. 29, 2008) (quoting Craw-ford-El v. Britton, 523 U.S. 574,598 (1998));
79. see id. at 28;
80. Brief of Professors of Civil Procedure and Federal Practice as Amici Curiae in Support of Respondents at 24 n.3, Ashcroft v. Iqbal, No.
81. -1015 (Oct. 30, 2008) (hereinafter, Professors' Amicus Brief) ("the Government seeks to convert the Court's description of a discretionary judgment pertaining to what a district court might do under Rules 7(a) and 12(e) into a mandatory heightened pleading standard under Rule 8(a)(2)"). The author contributed to, and was a signatory of, this amicus brief.
82. "Under Romanian law, anything that is not a 'State secret' is a 'Service secret'-in other words, everything is secret" Reinsurance Co. of America, Inc. v. Administratia Asigurarilor de Stat, 902 F. 2d 1275,1283 (7th Cir. 1990) (Easterbrook, J., concurring).
83. Iqbal, 490 F.3d at 158. It is useful in this regard to recall the links between the Progressives' project of regulatory "legibility" and the impulses that led to broad discovery under the Federal Rules.
84. See Burbank, supra n. 22, at 597-98 (discussing Edson Sunderland, a Progressive who was the chief architect of the discovery rules);
85. Ken I. Kersch, The Reconstruction of Constitutional Privacy Rights and the New American State, in 16 STUD, IN AM. POL. DEVELOP. 61 (2002).
86. See Stephen B. Burbank, Pleading and the Dilemmas of-General Rules," 2009 WIS. L. REV. 535, 555-56, 558.
87. See Iqbal, 490 F.Sd at 166 ("And like the Form 9 complaint approved in Bell Atlantic, Iqbal's complaint informs all of the defendants of the time frame and place of the alleged violations");
88. id. at 156 (linking assessment of "legal conclusions" to whether "the defendant is given notice of the date, time, and place where the legally vulnerable conduct occurred").
89. I share the Second Circuit's view that the allegations that Ashcroft and Mueller were personally involved in the adoption and/or approval of the policies and directives challenged in Iqbal tell a story that is plausible (not unreasonable).
90. See supra text accompanying note 53. Note that the Iqbal complaint does not attempt to hold those individuals responsible for the quotidian abuses during confinement that it alleges in claims against lower-level officials and employees.
91. See Professors' Amicus Brief, supra note 55, at 15 ("Thus, while the complaint does charge several individuals with ad hoc violations of the plaintiffs rights neither Ashcroft nor Mueller is named in any of these fact-specific counts.").
92. See, e.g., Transcript of Oral Argument at 11, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (hereinafter Iqbal Transcript) (No. 07-1015) ("And we're not asking for a heightened pleading standard, Justice Ginsburg.") (Solicitor General Garre);
93. Reply Brief for Petitioners at 12, Iqbal, 129 S. Ct. 1937 (2009) (No. 07-1015) ("Petitioners do not ask the Court to adopt any heightened pleading standard. Rather, their position is that the lower courts failed to follow this Court's decisions in this area and give a 'firm application' of the Federal Rules").
94. See supra text accompanying notes 47-48.
95. "Well, I thought, and others may know better in connection to Bell Atlantic, but I thought in.
96. Bell Atlantic what we said is that there's a standard but it's affected by the context in which the allegations are made. That was a context of a particular type of antitrust violation and that affected how we would look at the complaint. And here because we're looking at litigation involving the Attorney General and the Director of the FBI in connection with their national security responsibilities,there ought to be greater rigor applied to our examination of the complaint" Iqbal Transcript, supra n. 61, at 36-37 (Chief Justice Roberts).
97. See id. at 43 ("What you have to show is some facts, or at least what you have to allege are some facts, showing that they knew of a policy that was discriminatory based on ethnicity and country of origin.") (Chief Justice Roberts).
98. See supra n. 51 and accompanying text.
99. FED. R. CIV. P. 9(b). See Ashcroft v. Iqbal, 129 S. CL 1937, 1954 (2009).
100. See Iqbal, 129 S. CL at 1951-52. Note that, prior to dealing with the adequacy of the complaint, the Court changed the law of official immunity, making it even more difficult to impose liability on officials in supervisory positions. See id. at 1947-49.
101. Id. at 1950.
102. See id. at 1953.
103. See Twombly, 550 U.S. at 574-75 (Stevens, J., dissenting).
104. "Reliance on case-specific discretion might be a sensible strategy if proceduralists today still believed, as the original Federal Rules drafters did, that procedural design is a technical exercise largely devoid of substantive value and best performed by trial judges. That belief, however, was thoroughly discredited in the 1970s. The normative issues are not purely technical; they directly implicate substantive values." Bone, supra n. 13, at 327 (footnote omitted).
105. See Miller, supra n. 42, at 532 ("Tellabs is an interpretation of the standards governing a motion to dismiss under Rule 12(b)(6). But when one examines how that motion is actually adjudicated in securities fraud cases, it becomes evident that the hydraulic pressures of the PSLRA's pleading rules have deformed the 12(b)(6) motion and converted it into something different-a sort of hybrid between the motion to dismiss and the motion for summary judgment.").
106. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Burbank, supra n. 22, at 623 ("The contradictions and studied ambiguity of two decisions in the trilogy, each of which was responsive to the perceived requirements of a particular substantive context and might well have been so confined but for the fetish of transsubstantive procedure, provide support for very different approaches to Rule 56.") (footnote omitted). As Justice Stevens' powerful dissent in Twombly points out, granting authority to police inferences at the pleading stage represents a major change, because it may lead to the termination of cases before plaintiffs have had any discovery at all.
107. See Twombly, 550 U.S. at 585-86 (Stevens.J., dissenting).
108. See Burbank, supra n. 22, at 616-18.
109. On the theoretical and practical differences between making law by decision vs. by Federal Rule, see generally Burbank, Of Rules and Discretion, supra n. 13, at 698-713;
110. see also Burbank, supra n. 10, at 1147-57, 1192-93.
111. See Twombly, 550 U.S. at 559, 560 n.6 (citing Frank Easterbrook, Discovery as Abuse, 69 B.U. L. REV. 635, 638-39 (1989)).
112. Burbank, Transformation, supra n. 13, at 1947-48.
113. "Whatever screening approach is adopted, however, two general points should guide its design. First, the project should be handled by formal rulemaking or the legislative process, not by the common law method of case-by-case interpretation of the Federal Rules. Because it requires a controversial choice of normative metric and a coordinated analysis of different rule options, this project is most suitable for a process open to public input, able to generate and properly consider relevant empirical information, and capable of addressing the issues from a global and systemic perspective. Second, because the screening approach should be tailored to the types of cases that involve meritless filings most seriously, any set of rules should be substance-specific." Robert G. Bone, Twombly, Pleading Rules and the Regulation of Court Access, 94 IOWA L. REV. (forthcoming 2009), at 86, available at http://www.bu.edu/law/faculty/scholarship/ workingpapers/2008.html
114. See Editorial, supra n. 50.
115. Sean Farhang, Public Regulation and Private Lawsuits in the American Separation of Powers System, 52 AM. J. POL. SCI. 821, 825 (2008).
116. If one were to move to a substance-specific pleading regime, the presence in a statute of either a pro-plaintiff fee-shifting mechanism or a multiple damages provision might well ground a decision in favor of relaxed pleading requirements (i.e., similar to those associated with notice pleading).
117. Farhang, supra n.79, at 836.
118. See id. at 825 ("Indeed, once formalized, private enforcement regimes provide better insulation on the enforcement front than rule-governed agency powers, which future Congresses will have more continuing control over.").
119. Professor Bone's attempt to defend Twombly from criticism that it changed the meaning of Rule 8(a)(2) by arguing that one judicial interpretation merely replaced another is not persuasive.
120. See Bone, supra n. 77, at 24-34. First, it is difficult to separate the views (or intent) of Charles Clark, the chief architect of the pleading rules, from those of the Advisory Committee that he served as Reporter. Second, we know that the original Advisory Committee sought to avoid the arbitrary or metaphysical enterprise of distinguishing "facts" from "conclusions." See supra text accompanying note 69. Third, the Court has told us that the Justices are "bound to follow [a Federal Rule] as [they] understood it upon its adoption." Ortiz v. Fibreboard Corp., 527 U.S. 815,861 (1999);
121. supran. 47. Clark's various statements about Rule 8 to the side, I do not know of better evidence of the Court's original understanding than Conky. except perhaps Hickman v. Taylor, 329 U.S. 495 (1947).
122. See id. at 501 ("The new rules, however, restrict the pleadings to the task of general notice-giving")." 84. 355 U.S. 41 (1957).
123. Farhang, supra n. 79, at 826.
124. Burbank, Transformation, supran. 13, at 1936-37.
125. See Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. EMP. LEG. STUD. 429 (2004);
126. Kevin M. Clermont & StewartJ. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 HARV. L. & POL'Y REV. 1 (2009).
127. See Memorandum to Judge Michael Baylson from Joe Cecil and George Cort 17 (Aug. 13, 2008) (Table 12) (available from author).
128. See id.
129. Dan M. Kahan, David A. Hoffman, and Donald Braman, Whose Eyes Are You Going to Believe ? Scott v. Harris and the Perils of Cognitive IUiberalism, 122 HARV. L. REV. 838 (2009). See id 896.
130. U.S. 372,127 S. Ct. 1769 (2007). This discussion is adapted from my letter opposing a proposal to require all districts to employ a bilateral structured format See letter from Stephen B. Burbank to Peter G. McCabe, Secretary, Committee on Rules of Practice and Procedure (Jan. 28, 2009) (available from author).
131. Kahan et al., supra n. 90, at 887.
132. Id. at 895-96.
133. Id. at 898.
134. Id. at 897.
135. See also Elizabeth M Schneider, The Dangers of Summary fudgment: Gender and Federal CM Litigation, 59 RUT. L. REV. 705, 766-7 (2007) ("What if a judge does not have the humility, self-awareness or insight to recognize the limitations of his or her own perspective?");
136. Suja A. Thomas, Judicial Modesty and the Jury, 76 U. COLO. L. REV. 767 (2005).
137. Kahan et al., supra n. 90, at 898-99.
138. "The plausibility of an explanation depends on the plausibility of alternative explanations." Makor Issues & Rights, Ltd. v. Tellabs Inc., 513 F.3d 702,711 (7th Cir. 2008).
139. See Schneider, supra n. 95, at 767-71;
140. Russell M. Robinson, Perceptual Segregation, 108 COLUM. L. REV. 1093 (2008).
141. See Suja A. Thomas, Why the Motion to Dismiss is Now Unconstitutional, 92 MINN. L. REV. 1851 (2008).
142. Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).
143. See supra text accompanying notes 79-85.
144. See jeb Barnes, Courts and the Pttrrle of Institutional Stability and Change, 61 POL. RES. Q. 636 (2008).
145. Id. at 636;
146. see id. ("drift occurs when institutions and policies remain fixed while new risks emerge");
147. id. at 638.
148. Burbank, supra n. 22, at 620 (footnotes omitted).
149. Barnes, supra n. 102, at 636;
150. see id. at 638-39. "The common thread is how judges' interpretative powers can reshape policies and reallocate resources in the absence of sweeping formal revisions." Id. at 639.
151. "It is not, however, a reproach that federal judges have responded to the costs and demands of contemporary litigation by dusting off Rule 56 and trying to make it serve some semblance of its originally intended function of separating the wheat from the chaff." Burbank, supra n. 22, at 622-23.
152. Barnes, supra n. 102, at 638.
153. See supra note 48 and accompanying text. "Lower federal courts do not require a Supreme Court decision to get what they need out of a Federal Rule Indeed, experience with Rule 11 and with Rule 8(a) suggests that even when a rule appears fairly determinate or when the Supreme Court has spoken, some lower federal courts have difficulty bringing their behavior into conformity." Burbank, supra n. 22, at 620-21 (footnotes omitted).
154. See generally ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW(2001).
155. See, e.g., CHRISTOPHER HODGES, THE REFORM OF CLASS AND REPRESENTATIVE ACTIONS IN EUROPEAN LEGAL SYSTEMS: A NEW FRAMEWORK FOR COLLECTIVE REDRESS IN EUROPE (2008);
156. Stephen B. Burbank, The Roles of Litigation, 80 WASH. U. L.Q. 705, 710-11 (2002) (describing U.K. change of position regarding "litigation on spec" as a direct result of cuts in the legal aid budget).
157. Note the recent exception in amendments to Federal Rule of Evidence 502, proposed as legislation by the judiciary, and enacted by Congress.
158. See Pub. L. No. 110-322, 122 Stat, 3537 (2008);
159. S. REP. NO. 110-254, at 5 (2008) ("On December 11, 2007, Chairman Leahy introduced S. 2450, incorporating the language proposed by the Judicial Conference's Advisory Committee"). Because, however, the amendments govern attorney-client privilege, the judiciary had no choice by reason of the Enabling Act's requirement that any "rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress." 28 U.S.C. § 2074(b) (2006).
160. See Burbank, supra n.25;
161. Burbank, supra n. 44.
162. "The misguided approach to procedural reform that treats all litigation as if it were complex litigation can at least be explained, if not justified, by the quest for uniform and transsubstantive regulation that has preoccupied American procedural policy." Burbank, supra n. 110, at 711 (footnote omitted).
163. See Joseph, supra note 44; Maurice Rosenberg, The Federal Rules After Half a Century, 36 ME. L. REV. 243, 249 (1984).
164. See Gillian K. Hadfield, The Price of Law. How the Market for Lawyers Distorts the fustice System, 98 MICH.L. REV. 953 (2000).
165. See supra text accompanying notes 25-26.
166. See John B. Oakley, A Fresh Look at the Federal Rules in State Courts, 3 NEV. LJ. 354 (2002) (updating 1986 study of extent of state adoption of Federal Rules).
167. See Phyllis Topper Baumann et al., Substance in the Shadow of Procedure: The Integration of Substantive and Procedural Law in Title VII Cases, 33 B.C. L. REV. 211 (1992). "For, when one knows that a rule has a statistically significant differential impact on a class of litigants or in a particular type of case, the veil is lifted, the myth of neutrality as to litigant power is exploded, and the question of lawmaking power to address the situation is unavoidable. It may not be a coincidence, therefore, that the heightened attention to questions of rulemaking power in the past ten years has come during a period of unprecedented attention to empirical investigation of the real-world effects of rules by the rule makers." Stephen B. Burbank, Procedure, Politics and Power, 52 J. LEG. ED. 342,344 (2002) (footnote omitted).
168. See supra n. 16 (discussing inappropri-ateness of "veil of ignorance" as a normative posture for rulemakers).
169. See Stephen B. Burbank, Judicial Independence, Judicial Accountability, and Interbranch Relations, 95 GEO. LJ. 909, 910 (2007) (discussing attacks on courts that implement strategies reflecting theory of judicial agency and that are designed "to create and sustain an impression of judges that makes courts fodder for electoral politics").