The shadow rules of joinder

Georgetown Law Journal

Volumn 100, Issue 3, 2012, Pages 759-821

  Effron, Robin J ^a  

^a BROOKLYN LAW SCHOOL   (United States)

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EID: 84860188609     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (89)

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);
2. Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 98-99 (2009).
3. See generally ROBERT G. BONE, CIVIL PROCEDURE: THE ECONOMICS OF CIVIL PROCEDURE 259-98 (2003) (considering the efficiency of class actions);
4. John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 COLUM. L. REV. 1343 (1995) (same);
5. Richard L. Marcus, Confronting the Consolidation Conundrum, 1995 BYU L. REV. 879 (assessing empirical evidence for efficiency in consolidated litigation);
6. Judith Resnik, Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: "The Political Safeguards" of Aggregate Translocal Actions, 156 U. PA. L. REV. 1929 (2008) (considering the efficiency of class actions).
7. Mary Kay Kane, Original Sin and the Transaction in Federal Civil Procedure, 76 TEX. L. REV. 1723, 1736 (1998).
8. See Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909, 974 (1987).
9. See, e.g., Stephen B. Burbank, The Costs of Complexity, 85 MICH. L. REV. 1463, 1471-76 (1987) (book review);
10. Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, 22 WM. & MARY L. REV. 639, 680-82 (1981);
11. Robin J. Effron, Commentary, The New Commonality: Rule 23(a)(2) After Wal-Mart v. Dukes, 18 WESTLAW J. CLASS ACTION 16 (2011);
12. Laura J. Hines, The Dangerous Allure of the Issue Class Action, 79 IND. L.J. 567 (2004) (arguing that commonalities of legal issues are not common enough);
13. Judith Resnik, From "Cases" to "Litigation," 54 LAW & CONTEMP. PROBS. 5, 46-50 (1991);
14. Alexandra D. Lahav, The Curse of Bigness and the Optimal Size of Class Actions, 63 VAND. L. REV. EN BANC 117, 117 (2010), http://www. vanderbiltlawreview.org/content/articles/2010/11/Lahav-The-Curse-of-Bigness-63- Vand.-L.-Rev.-En-Banc-117-20101.pdf.
15. See Richard D. Freer, Avoiding Duplicative Litigation: Rethinking Plaintiff Autonomy and the Court's Role in Defining the Litigative Unit, 50 U. PITT. L. REV. 809, 811 (1989) ("Most recent proposals ⋯ have focused on the 'big case.'").
16. See Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374, 380 (1982) ("[B]ecause managerial judging is less visible and usually unreviewable, it gives trial courts more authority and at the same time provides litigants with fewer procedural safeguards to protect them from abuse of that authority.").
17. Robert G. Bone, Who Decides? A Critical Look at Procedural Discretion, 28 CARDOZO L. REV. 1961, 1967 (2007).
18. See MANUAL FOR COMPLEX LITIGATION (FOURTH) § 22.31 n.1061 (2004);
19. Linda S. Mullenix, Taking Adequacy Seriously: The Inadequate Assessment of Adequacy in Litigation and Settlement Classes, 57 VAND. L. REV. 1687, 1694-95 (2004) ("[C]lass action litigation ⋯ is representational litigation. This basic understanding distinguishes class litigation from ordinary bipolar litigation or even simple aggregated litigation such as consolidated cases."); Charles Silver, Comparing Class Actions and Consolidations, 10 REV. LITIG. 495, 497 (1991) ("Because a consolidation is a set of independent lawsuits, it cannot properly be characterized as a representational suit in which a lead party stands on behalf of everyone else.").
20. There is disagreement as to the utility and boundaries of the additional categories of consolidated actions and representative actions. See, e.g., Diane Wood Hutchinson, Class Actions: Joinder or Representational Device?, 1983 SUP. CT. REV. 459, 459-60 (delineating the "joinder model" and "representational model" of conceptualizing class actions);
21. Alexandra D. Lahav, Two Views of the Class Action, 79 FORDHAM L. REV. 1939, 1941 (2011) ("The two dominant schools of thought on the structure of the class action consider it to be either an advanced joinder device, merely aggregating individual cases, or a transformative procedural rule that creates an entity out of a dispersed population of claimants.");
22. see also Allan Erbsen, From "Predominance" to "Resolvability": A New Approach to Regulating Class Actions, 58 VAND. L. REV. 995, 1035-36 (2005) (arguing that a representative action should not eliminate the conceptual prerequisite that each claimant meet individual burdens).
23. See Michael S. Pardo, Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation, 51 B.C. L. REV. 1451, 1468-69 (2010) ("The procedural values that underlie civil litigation include: factual accuracy, efficiency (including costs to parties, courts, and society generally), participation, respect for substantive rights, notice, predictability, fairness (including notions of equality), and political legitimacy.").
24. See Edward Brunet, The Triumph of Efficiency and Discretion over Competing Complex Litigation Policies, 10 REV. LITIG. 273, 276 (1991) ("[T]he trade-off between efficiency and fairness dominates the policy questions troubling complex litigation.").
25. For a thorough description of the rulemaking process, see Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1069-95 (1982);
26. Karen Nelson Moore, The Supreme Court's Role in Interpreting the Federal Rules of Civil Procedure, 44 HASTINGS L.J. 1039, 1041-73 (1993);
27. Catherine T. Struve, The Paradox of Delegation: Interpreting the Federal Rules of Civil Procedure, 150 U. PA. L. REV. 1099, 1103-19 (2002).
28. Some states had moved toward modern joinder procedures, and the FRCP drafters followed this example. See, e.g., 6A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1581 & n.11 (3d ed. 2010).
29. Charles Alan Wright, Joinder of Claims and Parties Under Modern Pleading Rules, 36 MINN. L. REV. 580, 580-81 (1952) (summarizing the objectives of the Minnesota Rules of Civil Procedure, which mirror the FRCP).
30. See RICHARD D. FREER, CIVIL PROCEDURE § 12.1, at 609 (2d ed. 2009) ("Historically, joinder rules were quite restrictive. At common law, for example, the writ system ⋯ permitted the plaintiff to assert only a single, narrowly defined claim. The concept of a case was, correspondingly, quite narrow.");
31. see also Robert G. Bone, Mapping the Boundaries of a Dispute: Conceptions of Ideal Lawsuit Structure from the Field Code to the Federal Rules, 89 COLUM. L. REV. 1, 29-39 (1989) (describing the older approach to multiplicity of lawsuits under the Field Code)
32. See John C. McCoid, A Single Package for Multiparty Disputes, 28 STAN. L. REV. 707, 707 (1976) ("The resources devoted to any lawsuit ⋯ are scarce. Spending them in repeated examination of the issues raised by a single transaction is a waste.")
33. Martin H. Redish, Intersystemic Redundancy and Federal Court Power: Proposing a Zero Tolerance Solution to the Duplicative Litigation Problem, 75 NOTRE DAME L. REV. 1347, 1348-49 (2000) (describing how duplicative litigation gives rise to "procedural burdens and inefficiencies").
34. See Richard L. Marcus, Slouching Toward Discretion, 78 NOTRE DAME L. REV. 1561, 1578 (2003) ("Overall, the rules were infused with latitude for judges ⋯.");
35. Douglas D. McFarland, In Search of the Transaction or Occurrence: Counterclaims, 40 CREIGHTON L. REV. 699, 703 (2007) ("[J]oinder objections ⋯ are matters for later exercise of broad trial court discretion over trial convenience."). Even compulsory joinder rules may be tempered by a judge's decision to sever claims or parties for trial, FED R. CIV. P. 42(b), or to dismiss an entire case because of an inability to join a necessary party. FED. R. CIV. P. 19(b).
36. Steven S. Gensler, Judicial Case Management: Caught in the Crossfire, 60 DUKE L.J. 669, 673 (2010).
37. see also Brunet, supra note 32, at 283-85 (discussing the value of fairness in complex litigation). See generally Patrick Johnston, Problems in Raising Prayers to the Level of Rule: The Example of Federal Rule of Civil Procedure 1, 75 B.U. L. REV. 1325 (1995) (tracing the history and varying interpretations of Rule 1).
38. See Stephen N. Subrin, Uniformity in Procedural Rules and the Attributes of a Sound Procedural System: The Case for Presumptive Limits, 49 ALA. L. REV. 79, 85 (1997) ("The buzz words of the Federal Rules movement - uniformity, simplicity, and flexibility - at one level describe drafting attributes. They describe means, rather than ends, for a procedural system.").
39. See Elizabeth J. Cabraser, The Class Action Counterreformation, 57 STAN. L. REV. 1475, 1487 (2005) ("[T]he courts themselves have taken mixed and, in some cases, contradictory approaches to Rule 20 ⋯.").
40. see also Lumen N. Mulligan & Glen Staszewski, The Supreme Court's Regulation of Civil Procedure: The Lessons of Administrative Law, 59 UCLA L. REV. (forthcoming June 2012) (manuscript at 3-4), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1897864 (arguing that the Court is like an administrative agency and should "favor[] rulemaking over adjudication on civil procedure issues").
41. See Thomas O. Main, Procedural Uniformity and the Exaggerated Role of Rules: A Survey of Intra-State Uniformity in Three States That Have Not Adopted the Federal Rules of Civil Procedure, 46 VILL. L. REV. 311, 314-17 (2001) (describing uniformity of the Federal Rules and criticism of recent examples of local rule disparities);
42. Lauren Robel, Fractured Procedure: The Civil Justice Reform Act of 1990, 46 STAN. L. REV. 1447, 1447 (1994) ("For more than half a century, the normative vision animating federal civil procedure has been national uniformity and regularity in procedural rules."). (Pubitemid 24835251)
43. Kane, supra note 6, at 1723 (quoting Walter Wheeler Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 YALE L.J. 333, 337 (1933)). But see McFarland, supra note 44, at 708-28 (criticizing the inconsistent interpretations of "transaction or occurrence" in Rule 13(a) and suggesting inconsistencies in other rules as well).
44. see also Michael D. Conway, Comment, Narrowing the Scope of Rule 13(a), 60 U. CHI. L. REV. 141, 149 (1993) ("In interpreting Rule 13(a), courts have struggled to determine when claims arise from the same 'transaction or occurrence.'").
45. See Howard M. Erichson, Informal Aggregation: Procedural and Ethical Implications of Coordination Among Counsel in Related Lawsuits, 50 DUKE L.J. 381, 383-86 (2000).
46. See Stephen N. Subrin & Thomas O. Main, The Integration of Law and Fact in an Uncharted Parallel Procedural Universe, 79 NOTRE DAME L. REV. 1981, 2001-14 (2004).
47. See Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 435-36 (2001) (explaining that questions of law are reviewed de novo and questions of fact are reviewed for abuse of discretion or as "clearly erroneous" (quoting United States v. Bajakajian, 524 U.S. 321, 336 n.10 (1998)) (internal quotation marks omitted)); John Bronsteen, Against Summary Judgment, 75 GEO. WASH. L. REV. 522, 545 (2007) (suggesting that courts of appeals are better suited and legally obligated to correct errors of law, rather than erroneous or misguided findings of fact).
48. See, e.g., Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 IOWA L. REV. 821, 830 (2010);
49. Adam N. Steinman, The Pleading Problem, 62 STAN. L. REV. 1293, 1308 (2010).
50. See Kevin M. Clermont, Jurisdictional Fact, 91 CORNELL L. REV. 973, 1000-04 (2006) (discussing standards of proof for issues of fact and issues of law in personal jurisdiction).
51. See Julie A. Seaman, Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony, 96 GEO. L.J. 827, 882 (2008) ("The division of tasks between judge and jury, the inconsistent treatment of hearsay and its many exceptions, and the debate over the distinction between questions of fact and those of law illustrate the tension in evidence law between trust and distrust of the jury." (footnotes omitted)).
52. For descriptions of other examples, see Ronald J. Allen & Michael S. Pardo, Essay, The Myth of the Law-Fact Distinction, 97 NW. U. L. REV. 1769, 1778-89 (2003) (surveying the law-fact distinction in several areas);
53. Alan K. Chen, The Facts About Qualified Immunity, 55 EMORY L.J. 229, 262-64 (2006) (discussing the law-fact distinction in decisions of qualified immunity);
54. Jesse S. Keene, Fact or Fiction: Reexamining the Written Description Doctrine's Classification as a Question of Fact, 18 FED. CIR. B.J. 25, 49-51 (2008) (exploring the law-fact distinction in the written-description doctrine in patent law);
55. Rebecca Sharpless, Fitting the Formula for Judicial Review: The Law-Fact Distinction in Immigration Law, 5 INTERCULTURAL HUM. RTS. L. REV. 57 (2010) (exploring the law-fact distinction in immigration law doctrines).
56. See Randall H. Warner, All Mixed Up About Mixed Questions, 7 J. APP. PRAC. & PROCESS 101, 103 (2005) ("While others have recently argued that there is no analytical distinction between the categories of law and fact, I maintain that there are several distinct categories of judicial issues ⋯." (footnote omitted));
57. Aaron G. Leiderman, Note, Preserving the Constitution's Most Important Human Right: Judicial Review of Mixed Questions Under the REAL ID Act, 106 COLUM. L. REV. 1367, 1382-83 (2006) (creating different definitions for law and fact);
58. see also Richard D. Friedman, Standards of Persuasion and the Distinction Between Fact and Law, 86 NW. U. L. REV. 916, 925 (1992) ("[T]he allocation of law determination to the courts and fact-finding to the jury ⋯ is impossible to effectuate in pure form, largely because of limitations on the power of articulation.");
59. Kenneth Vinson, Disentangling Law and Fact: Echoes of Proximate Cause in the Workers' Compensation Coverage Formula, 47 ALA. L. REV. 723, 723 (1996) ("Confusion is the natural result of a system in which the judiciary encourages the idea that the legal system's distinction between law and fact is meaningful.").
60. Cf. Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229, 233 (1985) ("The incoherence argument seems greatly overdrawn once it is recognized that any distinction posited between 'law' and 'fact' does not imply the existence of static, polar opposites." (footnote omitted)).
61. See Paul F. Kirgis, The Right to a Jury Decision on Sentencing Facts After Booker: What the Seventh Amendment Can Teach the Sixth, 39 GA. L. REV. 895, 949 (2005) ("Efforts to distinguish laws from facts at this level - in relation to questions about the nature of law - will always fail. That does not mean, however, that it is impossible to distinguish 'questions of law' from 'questions of fact' as those terms are and traditionally have been used by judges in practice.");
62. Gary Lawson, Stipulating the Law, 109 MICH. L. REV. 1191, 1209-10 (2011) (agreeing with Allen and Pardo's conclusions on the law-fact distinction but making an argument that "accept[s] as given that the American legal system distinguishes factual from legal propositions [and] treats them differently for many purposes").
63. Moore v. New York Cotton Exchange, 270 U.S. 593 (1926), the case that interpreted the term "transaction" and announced the "logical relationship" test, id. at 609-10, has been used to support both interpretations. See Jones v. Ford Motor Credit Co., 358 F.3d 205, 209 (2d Cir. 2004) (looking at fact only); Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, 634 (3d Cir. 1961) (looking at both fact and law).
64. *1 (E.D. Tenn. Oct. 29, 2007) (citing Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir. 2004), a case granting class certification for a consolidation under Rule 42(a)); Vallero v. Burlington N. R.R., 749 F. Supp. 908, 913 (C.D. Ill. 1990) ("A district court may ⋯ consolidat[e] ⋯ two lawsuits when common questions of law or fact predominate." (citing FED. R. CIV. P. 42(a))).
65. Id. at 2565 (Ginsburg, J., concurring in part and dissenting in part) (quoting 5 J. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 23.23[2], at 23-72 (3d ed. 2011)).
66. Id. at 2556 (alteration in original) (citation omitted) (quoting Richard A. Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 COLUM. L. REV. 149, 176 n.110 (2003)).
67. see also Allan Erbsen, Wal-Mart v. Dukes and the Heterogeneity Problem: Part I (The Aggregability/Resolvability Distinction), PRAWFSBLAWG (July 6, 2011, 9:55 AM), http://prawfsblawg.blogs.com/prawfsblawg/2011/07/wal-mart-v-dukes- and-the-heterogeneity-problem-part-i-the-aggregabilityresolvability-distinction. html (discussing the Court's dissimilarity analysis).
68. Sergio J. Campos, Mass Torts and Due Process, 65 VAND. L. REV. (forthcoming 2012) (manuscript at 30), available at http://ssrn.com/abstract= 1838368.
69. See John C. Coffee Jr., "You Just Can't Get There from Here": A Primer on Wal-Mart v. Dukes, 12 BNA CLASS ACTION LITIG. REP. 610, 612 (2011) ("As redefined, commonality necessarily overlaps with the merits.");
70. Ralph Richard Banks, A Cruel Paradox, N.Y. TIMES (June 30, 2011, 5:05 PM), http://www.nytimes.com/roomfordebate/2011/06/20/a-death-blow-to-class- action/the-cruel-irony-in-the-wal-mart-ruling ("Wal-Mart v. Dukes is ostensibly focused on a narrow procedural issue but is in fact the latest installment in a long running debate about equality, in the workplace and beyond.");
71. Matthew Bodie, Workplace Rules, N.Y. TIMES (June 21, 2011, 12:21 PM), http://www.nytimes.com/roomfordebate/2011/06/20/a-death-blow-to-class-action/ leaving-it-to-the-workplace ("I think the real issue here is the definition of 'dispute.'");
72. Sergio Campos, Wal-Mart v. Dukes and Commonality, PRAWFSBLAWG (June 20, 2011, 5:03 PM), http://prawfsblawg.blogs.com/prawfsblawg/2011/06/wal-mart-v- dukes-and-commonality.html (arguing that the decision "conflate[s] the merits of the plaintiffs' claim of a common discriminatory policy with whether such a policy would be common to the class");
73. Sarah Crawford, Wal-Mart v. Dukes: A Supreme Blow to Corporate Accountability, the Class Action Vehicle- and Justice, AM. CONST. SOC'Y BLOG (June 27, 2011), http://www.acslaw.org/acsblog/wal-mart-v-dukes-a-supreme-blow- to-corporate-accountability-the-class-action-vehicle-%E2%80%93-and-j ("Even though the Court was presented with the limited question of whether to certify the class, the majority delved deep into the merits of the underlying claims of discrimination.");
74. Melissa Hart, Hostility Toward Working Women, N.Y. TIMES (June 21, 2011, 11:02 AM), http://www.nytimes.com/roomfordebate/2011/06/20/a-death-blow-to- class-action/failing-to-recognize-discrimination ("This case could have been decided exclusively on the question of whether Rule 23(b)(2) was the appropriate vehicle for the class action the Dukes plaintiffs brought⋯. The [Court's] decision to instead issue a potentially far-reaching attack on claims of discrimination is distressing.").
75. *2 (S.D. Ala. May 4, 2009); Wolf v. Procter & Gamble Co., 555 F. Supp. 613, 627-28 (D.N.J. 1982); Greer v. Blum, 462 F. Supp. 619, 624-26 (S.D.N.Y. 1978); Martinez v. Safeway Stores, Inc., 66 F.R.D. 446, 448-49 (N.D. Cal. 1975). Courts apply a particularly rigorous analysis for intervention in class actions. See Eckert v. Equitable Life Assurance Soc'y of the U.S., 227 F.R.D. 60, 64 (E.D.N.Y. 2005) (quoting 5 HERBERT NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS § 16:8 (4th ed. 2002)).
76. Scholars of discretion have distinguished between "primary" and "secondary" discretion. See Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 SYRACUSE L. REV. 635, 637 (1971). The types of discretion discussed in my article are part of "secondary" discretion because the rules do not accord the district judge complete freedom to choose or create any rule for the resolution of the case. See id.;
77. Charles M. Yablon, Justifying the Judge's Hunch: An Essay on Discretion, 41 HASTINGS L.J. 231, 257 (1990).
78. Miranda McGowan, Do As I Do, Not As I Say: An Empirical Investigation of Justice Scalia's Ordinary Meaning Method of Statutory Interpretation, 78 MISS. L.J. 129, 150 (2008).
79. See William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1377 (1988) ("[F]or common law statutes ⋯ Congress has declared an important public policy in general, sweeping terms, and has essentially left the courts free to mold the contours of that policy ⋯.").
80. See, e.g., Kent Greenawalt, Discretion and Judicial Decision: The Elusive Quest for the Fetters That Bind Judges, 75 COLUM. L. REV. 359, 360-66 (1975) (summarizing the debate over how and whether judges have discretion to decide cases and make legal rules); Rosenberg, supra note 237, at 637 (defining rules of discretion as those which "accord the lower court's decision an unusal amount of insulation from appellate revision").
81. See Pierre Schlag, Formalism and Realism in Ruins (Mapping the Logics of Collapse), 95 IOWA L. REV. 195, 225-28 (2009).
82. Cass R. Sunstein, Problems with Rules, 83 CALIF. L. REV. 953, 959 (1995).
83. Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 61 (1992).
84. See Eric A. Posner, Standards, Rules, and Social Norms, 21 HARV. J.L. & PUB. POL'Y 101, 101-07 (1997);
85. Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 YALE L.J. 1750, 1821 (2010).
86. See Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557, 590 (1992) (stating that the relative desirability of rules versus standards "raises two separate issues: rules versus standards ⋯ and the appropriate level of detail, which requires a separate analysis").
87. See Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, 22 WM. & MARY L. REV. 639, 640, 642-43 (1981).
88. See Stephen B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. EMPIRICAL LEGAL STUD. 591, 592-93 (2004);
89. Gillian K. Hadfield, Where Have All the Trials Gone? Settlements, Nontrial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil Cases, 1 J. EMPIRICAL LEGAL STUD. 705, 706 (2004).