Procedure, participation, rights

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 1011-1028

  Bone, Robert G ^a  

^a UNIVERSITY OF TEXAS   (United States)

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EID: 77954318990     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (74)

1. Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (citation omitted).
2. See Mullane v. Cent. Hanover Bank, 339 U.S. 306,314 (1950) ("[The] right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest").
3. See Taylor v. Sturgell, 128 S. Ct. 2161,2171 (2008);
4. Richards v. Jefferson County, 517 U.S. 793,798 (1996).
5. See John Leubsdorf, Constitutional Civil Procedure, 63 TEX. L. REV. 579, 579-80 (1984) (observing how thin constitutional protections are for civil procedure as compared to criminal procedure).
6. See, e.g., A. Benjamin Spencer, Understanding Pleading Doctrine, 108 MICH. L. REV. 1, 26-27 (2009);
7. see also Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 873, 908-09 (2009) (exploring with care the rights-based arguments against stricter pleading).
8. See RONALD DWORHN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009 manuscript at 208-09, on file with the Boston University Law Review).
9. See generally Robert G. Bone, Rethinking the "Day in Court" Ideal and Nonparty Preclusion, 67 N.Y.U. L. REV. 193 (1992).
10. See, e.g., DWORHN, JUSTICE FOR HEDGEHOGS, supra note 6 (manuscript at 234).
11. RONALD DWORKIN, Principle, Policy, Procedure, in A MATTER OF PRINCIPLE 72 (1985).
12. See, e.g., Robert G. Bone, Statistical Adjudication: Rights, Justice, and Utility in a World of Process Scarcity, 46 VAND. L. REV. 561, 576-98 (1993); see also Bone, supra note 7, at 236-56.
13. See, e.g., William B. Rubenstein, Finality in Class Action Litigation: Lessons from Habeas, 82 N.Y.U. L. REV. 790, 834-36 (2007)
14. (explaining how proponents of broad collateral attack on class action settlements invoke the individual right to participate in a strong way). This does not mean, of course, that availability of the class action or other forms of aggregation would necessarily expand, although it is very likely that they would. It does mean that the debate would have to focus much more on a utilitarian trade-off of social costs and benefits.
15. DWORHN, JUSTICE FOR HEDGEHOGS, supra note 6 (manuscript at 66).
16. Taylor v. Sturgell, 128 S. Ct. 2161,2178-80 (2008) (holding that the plaintiffs suit did not fit any of the recognized categories of nonparty preclusion and therefore was improperly claim precluded).
17. For more on the idea of a mistake, see RONALD DWORHN, TAHNG RIGHTS SERIOUSLY 118-23(1977).
18. On the one hand, a strong version of the day in court right is used to justify narrow nonparty preclusion rales. See Taylor, 128 S. Ct. at 2171-73. On the other hand, the Federal Rules of Civil Procedure allow plaintiffs to construct complex lawsuits over the objection of defendants, even though complicated party structures greatly weaken individual control as a practical matter. Indeed, the larger the aggregation, the less individual control any given party can exercise, and in very large aggregations, the judge appoints a litigation committee, thereby converting an individual into a collective day in court. For more on this point,
19. see Robert G. Bone, Making Effective Rules: The Need for Procedure Theory, 61 OKLA. L. REV. 319,339-40 (2008).
20. To be sure, broad individual participation and control can be justified on utilitarian grounds, given the strong incentives of those affected to investigate and present arguments, but a utilitarian theory would more readily justify limits when the social costs are high.
21. DWORKIN, Principle, Policy, Procedure, supra note 9, at 93-94.
22. Professor Dworkin is very clear about using an outcome-based approach. See id. at 101-03 (criticizing theories of procedural rights that rest on grounds other than outcomebased substantive injustice).
23. I have explained elsewhere why settlements should be included. Not only do most lawsuits end in settlement (more than seventy percent of filed cases), but settlements serve the deterrence and compensation goals of the substantive law just as much as trial judgments do.
24. See Robert G. Bone, Who Decides? A Critical Look at Procedural Discretion, 28 CARDOZOL. REV. 1961,1981-85 (2007).
25. See DWORHN, Principle, Policy, Procedure, supra note 9, at 92-98 (analyzing procedural rights in civil cases in terms of the accuracy of outcomes in enforcing substantive rights).
26. One might argue that the minimal set consists of whatever procedures minimize the expected costs of error. But this approach defines the content of the right in terms of minimizing social costs, which strips the right of its power to resist utilitarian arguments.
27. Goldberg v. Kelly, 397 U.S. 254,267-71 (1970).
28. Mathews v. Eldridge, 424 U.S. 319,343 (1976).
29. Witness the rise of the Alternative Dispute Resolution ("ADR") movement in the late 1970s and 1980s. See Bone, supra note 15, at 325-26.
30. One might endorse such a right and then specify permissible infringements.
31. See, e.g., David McCarthy, Rights, Explanations, and Risks, 107 ETHICS 205 (1997)
32. (using this approach to fit the morality of risk imposition into a theory of rights). But this strategy helps very little, for it just packs all the normative work into identifying which infringements are permissible.
33. The same problem exists for defining the right as a "right to a fair hearing," which merely begs the question of what is "fair."
34. Cf. Larry Alexander, Are Procedural Rights Derivative Substantive Rights?, 17 LAW & PHIL. 19, 24-25 (1998) (arguing that procedural rights reflect a balance of risk reduction and available resources, just as any substantive right against risk imposition does).
35. See DWORHN, Principle, Policy, Procedure, supra note 9, at 86.
36. For a more thorough discussion of this point, see Robert G. Bone, Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness, 83 B.U. L. REV. 485,513-17 (2003).
37. One might argue that only individual costs and benefits should matter. But it is not apparent why. As my example above showed, it makes sense to consider the cost to society of providing the procedure. And it is difficult to see why we should confine our attention on the benefit side to any particular litigant. Surely, it makes sense to count the benefits of error risk reduction to everyone.
38. See, e.g., Virginia v. Black, 538 U.S. 343,365 (2003) (defining political speech as "the core of what the First Amendment is designed to protect").
39. See DwORHN, Principle, Policy, Procedure, supra note 9, at 72-103.
40. See DWORHN, JUSTICE FOR HEDGEHOGS, supra note 6 (manuscript at 234).
41. DWORKIN, Principle, Policy, Procedure, supra note 9, at 80-81.
42. Id. at 80.
43. Id.
44. Id. at 81.
45. Id. at 89,95-96.
46. Id. at 92-93.
47. Id. at 93.
48. As Dworkin puts it, "[the second right] is a right to the consistent application of that theory of moral harm that figures in the best justification of settled legal practice." Id.
49. See id. at 87-89,93.
50. Dworkin notes that while the Due Process Clause requires that rales of criminal procedure respect "the historical theory of moral harm, embedded in traditions of criminal practice," no constitutional provision appears to subject rales of civil procedure to a similar requirement. Id. at 93. Dworkin, however, is not clear whether he means this observation to be simply a descriptive statement about the limits of constitutional law or also a normative statement about the proper application of procedural rights. 43 See Bone, supra note 19, at 1967-69.
51. At the same time, however, a fair distribution of error risk is not a strictly equal distribution, even in civil cases. Strict equality across cases and litigants simply does not fit the American system of civil adjudication, which sometimes adjusts the risk of error to take account of the importance of the substantive interests at stake.
52. See supra notes 21-26 and accompanying text.
53. DWORKIN, Principle, Policy, Procedure, supra note 9, at 79-84.
54. Punitive damages are an exception. Even a corrective justice theory, while it views civil liability in moral terms, is not about punishing moral transgressions or conveying messages of moral blame. It is about restoring the preexisting moral equilibrium.
55. This argument is similar to the "bitter with the sweet" argument made famous in Arnett v. Kennedy, 416 U.S. 134, 153-54 (1974).
56. Professor Dworkin might respond that there is no problem anyway because the legislature in effect makes a judgment about procedure when it relies on trial judge case-management discretion and legislatures are not bound by an obligation of moral consistency when they make procedure. See supra notes 41-43 and accompanying text. Still, the legislature in my hypothetical does not in fact make any particular procedural rale; judges make the procedure in their adjudicative capacity.
57. DWORKIN, Principle, Policy, Procedure, supra note 9, at 95-96.
58. Id. at 96.
59. It is possible there is no problem if the procedures are set by general rale and if Professor Dworkin exempts general legislative-type rulemaking from the moral consistency constraint. See supra notes 41-43 and accompanying text. However, the problem would still remain for judges exercising case-specific discretion to fashion procedures where the general rales give out.
60. Professor Dworkin's approach might suffer from an even more serious problem. It is not clear what prevents his theory from sliding into utilitarianism. If procedural rights depend on the importance of moral harm and the importance of moral harm depends on the cost society is willing to incur to protect against that harm, then how is it that procedural rights guarantee anything different than what a utilitarian cost-minimization metric would require? Stated differently, if the relative importance of moral harms depends on a judgment about comparative social costs, why does it not follow that higher social costs justify more limited procedures? The answer to this question will determine whether Dworkin's procedural rights have any traction as rights.
61. To be sure, parties consent to settlements, but consent is not enough to validate unjust settlement outcomes. Procedure frames the conditions for settlement bargaining and ultimately shapes the kinds of settlements parties are willing to accept. For example, plaintiffs might settle for amounts far less than their substantive entitlements if limited discovery makes it difficult for them to get needed information. Consent cannot justify the resulting errors when discovery limitations produce the error risks that pressure plaintiffs to settle. For a more detailed discussion of these issues, see Bone, supra note 19, at 1983-84.
62. I am aware that distinguishing between law application and lawmaking oversimplifies greatly and raises a host of complex issues about the nature of common law adjudication. For example. Professor Dworkin himself is famous for an interpretive theory of adjudication that denies a sharp distinction along these lines. I mean here only to distinguish roughly between the value of adjudication in enforcing extant substantive law and the value of adjudication in developing good law for the future. I hope I can work with this distinction without engaging the complex jurisprudential issues too deeply.
63. This argument justifies participation rights on rale-consequentialist grounds. If judges were able to make decisions about whether participation would further good lawmaking in specific cases, there would be no need for a right. Suppose, however, that judges are poorly equipped to make case-specific determinations about the marginal value of participation to good lawmaking, and suppose that judges left on their own would be more inclined to deny participation than grant it in order to save time and avoid complicating a case. Adopting a rule that gave all persons seriously affected a right to participate would counteract this judicial tendency and might yield better results over the long ran.
64. Lon L. Fuller, The Forms and Umits of Adjudication, 92 HARV. L. REV. 353, 364 (1978).
65. Robert G. Bone, Lon Fuller's Theory of Adjudication and the False Dichotomy Between Dispute Resolution and Public Law Models of Utigation, 75 B.U. L. REV. 1273, 1303 (1995).
66. Id. at 1305-06.
67. Id. at 1306.
68. Id. at 1306-08.
69. Cf. Jeremy Waldron, Participation: The Right of Rights, 98 PROC. ARISTOTELIAN SOC'Y 307, 335-37 (1998) (making this point about political procedures for optimal rights definition).
70. See, e.g., JERRY L. MASHAW, DUE PROCESS IN THE ADMINISTRATIVE STATE 158-253 (1985).
71. Psychological versions of this argument, such as the notion that due process protects against feelings of unjust treatment, cannot support the sort of rights we are seeking. If this argument is really about feelings rather than the injustice that feelings signal, it inevitably slides into some form of utilitarianism. The reason is easy to see. If feelings are what count, then there is no reason to prefer a feeling of just treatment to any other good feeling, such as the pleasure of eating ice cream. But that means that we must aggregate over everyone's feelings (preferences), which calls for a utilitarian approach. To escape this trap, one must explain why feelings of just treatment are more important than feelings about ice cream, but that just restates the problem we are trying to solve.
72. See, e.g., Lawrence B. Solum, Procedural Justice, 78 S. CAL. L. REV. 181, 275-77 (2004).
73. See Bone, supra note 7, at 279-85.
74. DWORKIN, Principle, Policy, Procedure, supra note 9, at 72.