The federal rules of civil settlement

New York University Law Review

Volumn 87, Issue 6, 2012, Pages 1713-1778

  Glover, J Maria ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 84878785918     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (315)

1. Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1182 (3d ed. 2004) (stating that a basic philosophy of the Federal Rules is to facilitate a "determination of litigation on the merits").
2. Jay Tidmarsh, Pound's Century, and Ours, 81 Notre Dame L. Rev. 513, 527 (2006) (stating that one goal of the new procedural rules was "the resolution of cases on their substantive merits").
3. Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1, 5 (2010) [hereinafter Miller, From Conley].
4. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
5. By "the legal merits of a given dispute, " I refer to the application of underlying substantive law to the relevant facts of a case. I do not, however, equate "the merits" of a dispute with a plenary, unlimited opportunity on the part of litigants to develop their claims through the potentially maximal use of procedural tools-a conception of "the merits" that may more fully encapsulate the scholar Roscoe Pound's view of a decision "on the merits. " See Roscoe Pound, Some Principles of Procedural Reform, 4 Ill. L. Rev. 388, 401 (1909-1910) ("With respect to. rules of procedure, we should make nothing depend upon them beyond securing to each party his substantive rights-a fair chance to meet his adversary's case and a full opportunity to present his own. ").
6. See generally Owen M. Fiss, Comment, Against Settlement, 93 Yale L.J. 1073, 1088 (1984) ("The problems of settlement are not tied to the subject matter of the suit, but instead stem from factors that are harder to identify, such as the wealth of the parties, the likely post-judgment history of the suit, or the need for an authoritative interpretation of law. ").
7. See, e.g., Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 Iowa L. Rev. 873, 891-92 (2009) [hereinafter Bone, Regulation of Court Access] ("Charles Clark. chief architect of the 1938 Federal Rules. believed that merits screening should take place after discovery, at summary judgment in some cases and at trial in most. ").
8. The "shadow of the law" phraseology was first introduced by Robert H. Mnookin and Lewis Kornhauser. See Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950, 968 (1979). Mnookin and Kornhauser use that metaphor to describe a confluence of factors that affect settlement outcomes, including the entitlements created by governing law, parties' preferences, transaction costs, parties' attitudes toward risk, and strategic behavior. When I refer to the "shadow of the law, " I focus on the extent to which legal entitlements created by governing law (and the application of law to underlying facts) impact negotiated outcomes.
9. See generally Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2464 (2004) ("The conventional wisdom is that litigants bargain toward settlement in the shadow of expected trial outcomes. ").
10. Ben Depoorter, Essay, Law in the Shadow of Bargaining: The Feedback Effect of Civil Settlements, 95 Cornell L. Rev. 957, 975 (2010) ("[P]rior settlements are a benchmark or reference point from which to consider the merits of future, similar cases. ").
11. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
12. To be clear, this Article works within the existing realities of litigation.
13. See Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909 (1987).
14. Fed. R. Civ. P. 2 (providing for a single form of action and abolishing multiple forms and procedural distinctions).
15. Fed. R. Civ. P. 8 (drawing upon Equity Rule 30 to set forth general rules of pleading, claims for relief, affirmative defenses, and a requirement that pleadings be concise and direct, compare R. Prac. Ct. Equity 25, 30 (1912) (repealed 1938), available at http://ia600505.us.archive.org/10/items/rulesof practicef00unit/rulesofpracticef00unit.pdf).
16. See, e.g., Charles E. Clark, Procedural Fundamentals, 1 Conn. B.J. 67, 68 (1927) ("A procedural penalty can be supported only if it is a material aid in the better administration of justice. ").
17. Charles E. Clark, History, Systems and Functions of Pleading, 11 Va. L. Rev. 517, 542 (1925) ("Pleading should perform the office of only aiding in the enforcement of substantive legal relations. ").
18. Charles E. Clark, The Code Cause of Action, 33 Yale L.J. 817, 817 (1924) (describing state code reform efforts to reduce interference of technicalities with "equitable principles").
19. See Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 14 Am. Law. 445, 447-48 (1906) (noting that procedural technicalities were creating such contentiousness in civil litigation that ordinary people intensely desired to avoid court).
20. Arthur R. Miller, Are the Federal Courthouse Doors Closing? What's Happened to the Federal Rules of Civil Procedure?, 43 Tex. Tech L. Rev. 587, 588 (2011) [hereinafter Miller, Are the Federal Courthouse Doors Closing?].
21. See Wayne D. Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 Vand. L. Rev. 1295, 1301 (1978) (noting that the 1938 drafters aimed to increase disclosure to reduce the adversarial nature of trial preparation).
22. Charles E. Clark, Pleading Under the Federal Rules, 12 Wyo. L.J. 177, 188-90 (1958) (noting that the 1938 reformers sought to place "truth ahead of cleverness and tactics" and to enable citizens "to come in and put [their] claim before the judge").
23. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
24. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
25. See Robert J. Gregory, One Too Many Rivers To Cross: Rule 50 Practice in the Modern Era of Summary Judgment, 23 Fla. St. U. L. Rev. 689, 689 (1996) ("Historically, summary judgment was a rarely used procedural device [and] [t]he standard formulation was that summary judgment should be denied whenever there was the 'slightest doubt as to the facts.'" (quoting Armco Steel Corp. v. Realty Inv. Co., 273 F.2d 483, 484 (8th Cir. 1960).
26. Stephen C. Yeazell, Essay, The Misunderstood Consequences of Modern Civil Process, 1994 Wis. L. Rev. 631, 636. In 1938, roughly sixty-three percent of adjudicated terminations of cases terminated in trials and directed verdicts. (citing 1938 Att'y Gen. Ann. Rep. 1, 233).
27. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
28. There have been few major substantive amendments to the Federal Rules since their adoption in 1938. See, e.g., Fed. R. Civ. P. 11 (amended in 1983 to require lawyers to certify that their filings are supported by fact and law after an "inquiry reasonable under the circumstances").
29. Fed. R. Civ. P. 16 (amended in 1983 to encourage judges to exercise a managerial role during pretrial settlement conferences).
30. Fed. R. Civ. P. 16, 26, 33, 34, 37, 45 (amended in 2006 to clarify that discoverable materials also cover electronic data).
31. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
32. See, e.g., Charles A. Brown, Note, Employment Discrimination Plaintiffs in the District of Maryland, 96 Cornell L. Rev. 1247, 1252 n.37 (2011) (noting a trial rate of around 1.2% for civil court filings).
33. Kevin M. Clermont, Litigation Realities Redux, 84 Notre Dame L. Rev. 1919, 1956 n.184 (2009) ("[T]he Annual Report of the Director of the Administrative Office of the United States Courts. shows. current [trial] levels approaching 1%. ").
34. Richard A. Nagareda, 1938 All Over Again? Pretrial as Trial in Complex Litigation, 60 DePaul L. Rev. 647, 647 (2011)
35. Citing Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459, 460 (2004) ("[J]udges conduct trials at only a fraction of the rate that their predecessors did. [This is] a phenomenon that runs counter to the prevailing image of litigation in the United States. ").
36. See, e.g., David L. Cook et al., Criminal Caseload in U.S. District Courts: More than Meets the Eye, 44 Am. U. L. Rev. 1578, 1580 (1995) ("Federal judges today are spending a disproportionate amount of their time on criminal cases, due to the increase in defendants, trials, motions, hearings, and sentencings. ").
37. See Samuel R. Gross & Kent D. Syverud, Don't Try: Civil Jury Verdicts in a System Geared to Settlement, 44 UCLA L. Rev. 1, 3, 59 (1996) [hereinafter Gross & Syverud, Don't Try] (noting that "[w]e have very many litigated disputes per judge, so it is essential that most cases be resolved without judgment"). But see Shari S. Diamond & Jessica Bina, Puzzles About Supply-Side Explanations for Vanishing Trials: A New Look at Fundamentals, 1 J. Empirical Legal Stud. 637, 638 (rejecting the notion that a scarcity of judicial resources explains the vanished trial). The federal judiciary continues to claim that the growing workload impairs its ability to handle its cases. E.g. id. Despite suggestions that the addition of more judges would usher in a world of increased trials, see, for example, John Lande, How Much Justice Can We Afford?: Defining the Courts' Roles and Deciding the Appropriate Number of Trials, Settlement Signals, and Other Elements Needed To Administer Justice, 2006 J. Disp. Resol. 213, 248, it may well be that any room for trials made by the addition of judges would simply be occupied by other cases waiting in the wings.
38. See George L. Priest, Private Litigants and the Court Congestion Problem, 69 B.U. L. Rev. 527, 554 (1989) (introducing the congestion equilibrium hypothesis).
39. See, e.g., Access to Justice Denied: Ashcroft v. Iqbal: Hearing Before the Subcomm. on the Constitution, Civil Rights & Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 11 (2009) (statement of Arthur R. Miller, Professor, New York University School of Law) ("The federal courts have become a world unimagined in 1938: a battleground for titans of industry to dispute complex claims involving enormous stakes. and the situs for aggregate litigation on behalf of large numbers of people and entities pursuing legal theories and invoking statutes unknown in the 1930s. ").
40. See, e.g., Martha Minow, Judge for the Situation: Judge Jack Weinstein, Creator of Temporary Administrative Agencies, 97 Colum. L. Rev. 2010, 2019-20 (1997) (discussing Judge Weinstein's handling of In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1396 (E.D.N.Y. 1985), a complex mass tort case, in which he "pressed for settlement" while also creating an administrative-like regime to process individual claims).
41. Richard A. Nagareda, Turning from Tort to Administration, 94 Mich. L. Rev. 899, 902 (1996) (pointing out that the rise of mass tort settlements occurred "outside preexisting channels of control").
42. Scholars have noted that the prototypical lawsuit for which the 1938 Federal Rules were designed was a relatively simple diversity case, not the often staggeringly complex cases brought in federal court today. See, e.g., Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. Chi. L. Rev. 494, 508 (1986) (noting that the prototypical case in the minds of the 1938 drafters was one between private individuals in which "tortious injury or breach of contract was claimed. and monetary damages were sought").
43. Marc Galanter, Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change, 9 L. & Soc. Rev. 95, 97 (1974) (describing repeat players as actors "who are engaged in many similar litigations over time").
44. See Shari Diamond, Truth, Justice, and the Jury, 26 Harv. J. L. & Pub. Pol'y 143, 144 (2003) ("The general theme [among civil jury critics] is that a group of laypersons cannot be trusted to find the truth and to administer even-handed justice. ").
45. Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 Md. L. Rev. 1093, 1095 (1996) (noting that critics of the tort system believe that "[i]rresponsible juries, biased against deep-pocket defendants, bestow windfalls on undeserving plaintiffs, particularly arbitrary and capricious damages for pain and suffering and random outsize awards of punitive damages").
46. Marc Galanter, The Civil Jury as Regulator of the Litigation Process, 1990 U. Chi. Legal F. 201, 208 (1990) ("Fear of juries leads defendants to settle suits, whatever their merits. ").
47. See, e.g., Carrie Menkel-Meadow, Whose Dispute Is It Anyway? A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 Geo. L.J. 2663, 2674-75 (1995) (noting that settlement enables litigants to craft solutions that offer "greater expression of the variety of remedial possibilities in a postmodern world").
48. In 1986, three decisions of the Supreme Court cemented a shift in the focal point of litigation to the summary judgment stage. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986) (requiring the nonmovant, under the standard governing a directed verdict, to provide affirmative evidence supporting a favorable verdict).
49. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (easing the movant's burden by allowing her to prevail without proving the nonexistence of material facts).
50. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (requiring the nonmovant, in the face of a judicial determination that her claims are "implausible, " to produce affirmative evidence to the contrary). Together, these three cases formalized the transformation of summary judgment from a relatively unused-and even disfavored-procedure into a powerful resolver of disputes. See, e.g., Samuel Issacharoff & George Loewenstein, Second Thoughts About Summary Judgment, 100 Yale L.J. 73, 87-89, 95 (1990).
51. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (holding that in order to certify a class, a court must find that the class has presented a common contention of injury, the validity of which can be resolved in one stroke). A series of recent appellate court decisions have called for more robust judicial scrutiny of merits-related issues at the class certification stage. See In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320, 324 (3d Cir. 2008) (requiring judges to determine whether the requirements for class certification under Federal Rule 23 are satisfied by a preponderance of the evidence).
52. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-91 (1993) (stating that expert testimony is only admissible if a judge deems it relevant, reliable, and grounded in sound scientific methodology).
53. The Court recently ushered in demands for more robust judicial intervention at the pleading stage of litigation. In two cases, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561, 570 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the Court abandoned the longstanding "no set of facts" pleading standard from Conley v. Gibson, 335 U.S. 41, 45-46 (1957) and replaced it with one that requires a complaint to "state a claim to relief that is plausible on its face. "
54. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
55. Marc Galanter & Mia Cahill, "Most Cases Settle": Judicial Promotion and Regulation of Settlements, 46 Stan. L. Rev. 1339, 1340 (1994) (referring to research indicating that, even twenty-five years ago, seventy-eight percent of surveyed cases ended in settlement.
56. citing Herbert M. Kritzer, Adjudication to Settlement: Shading in the Gray, 70 Judicature 161, 162-64 (1986)
57. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
58. Fed. Judicial Ctr., Impact of the Class Action Fairness Act on the Federal Courts: Preliminary Findings from Phase Two's Pre-CAFA Sample of Diversity Class Actions 2 (2008), available at http://www.fjc.gov/public/pdf.nsf/lookup/cafa1108.pdf/$file/cafa1108.pdf (finding that, among diversity cases, every certified class action in its post-Class Action Fairness Act (CAFA) study had terminated in settlement).
59. See, e.g., Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374, 376-77 (1982) ("In growing numbers, judges. are meeting with parties in chambers to encourage settlement of disputes and to supervise case preparation. ").
60. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
61. See Edward J. Brunet, Martin H. Redish & Michael A. Reiter, Summary Judgment: Federal Law and Practice 38-39 (2d ed. 2000) ("Summary judgment thereby enhances settlement possibilities by eliminating sometimes troublesome and illusory issues from a case. ").
62. Peter Robinson, Settlement Conference Judge-Legal Lion or Problem Solving Lamb? An Empirical Documentation of Judicial Settlement Conference Practices and Techniques, 33 Am. J. Trial Adv. 113, 132 (2009) (reporting that a majority of California judges surveyed believed that they were "influential" on parties' decisions to settle "between 41% and 60% of the time").
63. The idea of the judge as "settlement facilitator" was more formally cemented by legislative enactments. See Civil Justice Reform Act of 1990, 28 U.S.C. §§ 471, 482 (2006) (emphasizing the importance of early judicial intervention to manage cases and requiring every federal district court to promulgate an expense and delay reduction plan and to conduct annual docket assessments).
64. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
65. More broadly, scholars have also argued that settlement deprives the litigation system of needed clarification of legal norms, David Luban, Settlements and the Erosion of the Public Realm, 83 Geo. L.J. 2619, 2622-23 (1995), that it prevents the public from learning about legal processes and outcomes, and that it prevents our regulatory system from using litigation to place topics on the public agenda independent of those that governmental institutions might place there.
66. Judith Resnik, Courts: In and out of Sight, Site, and Cite, 53 Vill. L. Rev. 771, 804-06 (2008).
67. See Blanca Fromm, Bringing Settlement out of the Shadows: Information About Settlement in an Age of Confidentiality, 48 UCLA L. Rev. 663, 663 (2001) (noting that the details of settlements are usually hidden from the public via sealed court orders and confidentiality agreements).
68. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
69. See, e.g., E. Donald Elliot, Managerial Judging and the Evolution of Procedure, 53 U. Chi. L. Rev. 306, 316-18 (1986) (describing how the unavailability of certain legal safeguards in settlement conferences encourages arbitrary decisions by judges).
70. Jonathan T. Molot, An Old Judicial Role for a New Litigation Era, 113 Yale L.J. 27, 42 (2003) [hereinafter Molot, An Old Judicial Role] ("[D]iscretionary management tactics that vary inordinately from judge to judge may threaten litigants' due process rights. ").
71. Jeffrey A. Parness, Improving Judicial Settlement Conferences, 39 U.C. Davis L. Rev. 1891, 1893-98 (2006) (comparing a judge's limited "traditional judicial role" with the discretionary, informal, and overreaching powers exercised in a settlement conference).
72. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
73. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
74. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
75. See, e.g., Samuel Issacharoff & Robert H. Klonoff, The Public Value of Settlement, 78 Fordham L. Rev. 1177, 1196-99 (2009) (explaining how settlement in some cases is vastly preferred to the potential delays and uncertainties litigation can introduce).
76. See, e.g., Samuel Issacharoff & Robert H. Klonoff, The Public Value of Settlement, 78 Fordham L. Rev. 1177, 1196-99 (2009) (explaining how settlement in some cases is vastly preferred to the potential delays and uncertainties litigation can introduce).
77. Suzanna M. Meyers, Doing Their Jobs: An Argument for Greater Media Access to Settlement Agreements, 14 Fordham Intell. Prop. Media & Ent. L.J. 603, 606 (2004).
78. Nancy S. Marder, Introduction to Secrecy in Litigation, 81 Chi.-Kent L. Rev. 305, 329 (2006) (noting that a pilot project creating a settlement database for magistrate judges in Chicago started with the assumption that "settlement agreements are here to stay").
79. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
80. Fed. R. Civ. P. 1.
81. See Roscoe Pound, Some Principles of Procedural Reform (pt. 1), 4 Ill. L. Rev. 388, 402 (1910) ("[R]ules of procedure should exist only to secure to all parties a fair opportunity to meet the case against them and a full opportunity to present their own case.
82. These external factors may have a less significant impact on settlements in less complex cases that involve no discovery. See Judith A. McKenna & Elizabeth C. Wiggins, Empirical Research on Civil Discovery, 39 B.C. L. Rev. 785, 790-92 (1998) (reporting, based on a study from 1978, that around fifty-two percent of cases in federal court involve no discovery, and that discovery incidents track case complexity, number of parties, and amounts at stake). This is particularly true given the costs associated with the discovery process for more complex cases.
83. See Scott A. Moss, Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in a Digital Age, 58 Duke L.J. 889, 892 (2009) (stating that in federal cases involving discovery, discovery constitutes half of all litigation costs, and in the most expensive five percent of cases, ninety percent of litigation costs). The numbers on discovery incidents are likely too low, particularly given the recent explosion of electronic discovery.
84. See, e.g., John H. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform, 60 Duke L.J. 547, 572 (2010) (pointing out that most studies on discovery are out of date because they were conducted before the "explosion of electronic discovery" over the last decade, which hinders the resolution of even routine cases). And it is important to note that statistics about the incidence of discovery can be misleading: As Judge Frank Easterbrook has argued, the threat of discovery may be as problematic as discovery itself.
85. Frank H. Easterbrook, Discovery as Abuse, 69 B.U. L. Rev. 635, 637 (1989) ("[T]he terms of settlement are affected the most when the parties threaten discovery (explicitly or implicitly) but never use it. ").
86. To be clear, this Part does not argue that the merits of a dispute do not influence settlement outcomes whatsoever, as has been asserted in the context of securities class actions. See, e.g., Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 Stan. L. Rev. 497, 524 (1991) ("Because the safety valve of adjudication is not available, the strength of the case on the merits simply drops out of the settlement calculus. "). Alexander's conclusions have been challenged.
87. See, e.g., Tom Baker & Sean J. Griffith, How the Merits Matter: Directors' & Officers' Insurance and Securities Settlements, 157 U. Pa. L. Rev. 755, 757-59 (2009) (suggesting the veracity of Alexander's claims is ambiguous because several studies "may support the proposition that at least some meritorious claims settle higher than nonmeritorious claims").
88. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
89. William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 Harv. L. Rev. 2548, 2548 (2004) (stating that the settlement market in civil cases "internalizes the governing law").
90. See generally Steven Shavell, Foundations of Economic Analysis of Law 401-03 (2004) (setting forth the economic model of litigation).
91. Geoffrey P. Miller, Settlement of Litigation: A Critical Retrospective, in Reforming the Civil Justice System 13, 13-37 (Larry Kramer ed., 1996) (describing the economic model in detail).
92. For a discussion of how the threat of costs can overwhelm the merits, see Lucian Arye Bebchuk, Suing Solely To Extract a Settlement Offer, 17 J. Legal Stud. 437, 445-46 (1988) [hereinafter Bebchuk, Suing Solely].
93. Jonathan T. Molot, How U.S. Procedure Skews Tort Law Incentives, 73 Ind. L.J. 59, 69-72 (1997).
94. For a discussion of how informational asymmetries can affect case outcomes, see Lucian Arye Bebchuk, Litigation and Settlement Under Imperfect Information, 15 RAND J. Econ. 404, 409, 413-14 (1984).
95. And for a presentation of a finance-based model of litigation that focuses on variance as a driver of settlement outcomes, see Joseph A. Grundfest & Peter H. Huang, The Unexpected Value of Litigation: A Real Options Perspective, 58 Stan. L. Rev. 1267, 1278 (2006).
96. See, e.g., Chris Guthrie, Framing Frivolous Litigation: A Psychological Theory, 67 U. Chi. L. Rev. 163, 168-69 (2000) (proposing that, in frivolous lawsuits, plaintiffs are "psychologically inclined toward trial, " and defendants are "psychologically inclined toward settlement").
97. George Loewenstein et al., Self-Serving Assessments of Fairness and Pretrial Bargaining, 22 J. Legal Stud. 135, 138-40 (1993) (discussing "psychological factors that challenge [the Priest-Klein model's] central assumptions").
98. Jeffrey J. Rachlinski, Gains, Losses, and the Psychology of Litigation, 70 S. Cal. L. Rev. 113, 128 (1996) ("Predicting the behavior of litigants. requires an understanding of whether a party views their decision from the perspective of a gain or loss. ").
99. By "distortions of settlement outcomes, " I refer to the phenomenon whereby the operation of procedural rules in a particular case enables or amplifies the influence of nonmerits factors on settlement outcomes to such a degree that those factors may overwhelm the merits of the claim. And when I refer to "distortion of settlement ranges, " I refer to a shift in those ranges, either higher or lower, to a different set of minimum and maximum values for reasons largely unrelated to the merits of the relevant case.
100. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
101. Bruce L. Hay & Kathryn E. Spier, Settlement of Litigation, in 3 The New Palgrave Dictionary of Economics and the Law 442, 442, 445 (Peter Newman ed., 1998) (discussing the effects of litigation costs on the likelihood and terms of settlement). For empirical work reporting that eighty-three percent of responding lawyers agreed that costs, and not the merits of a case, were the deciding factor in settlement decisions, see Am. Coll. of Trial Law. Task Force on Discovery & Inst. for the Advancement of the Am. Legal Sys., Interim Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System, at A-6 (2008), available at http://drug anddevicelaw.net/ACTL%20Discovery%20Report.pdf.
102. See, e.g., Samuel R. Gross & Kent D. Syverud, Getting to No: A Study of Settlement Negotiations and the Selection of Cases for Trial, 90 Mich. L. Rev. 319, 323-24 (1991) [hereinafter Gross & Syverud, Getting to No] ("[The] plaintiff's minimum settlement demand [equates to] the plaintiff's estimate of the expected judgment at trial, minus the plaintiff's litigation costs. Similarly, the defendant's maximum settlement offer equals the defendant's estimate of the expected judgment at trial, plus the defendant's litigation costs. " (emphases omitted).
103. citing George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1, 12 (1984)
104. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
105. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
106. For instance, the Supreme Court introduced a new plausibility pleading standard partly out of concern that discovery costs may be incurred asymmetrically by defendants, thus generating undue settlement pressure. See Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009) (stating that it is "quite likely" defendants must participate in discovery despite promises of deferral from plaintiffs).
107. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007) (concluding that unnecessary discovery costs will be avoided by requiring sufficient conspiracy allegations). For an economic discussion of litigation as a vehicle to extract settlement through the imposition of costs, see Bebchuk, Suing Solely.
108. For instance, some modicum of discovery costs is needed to compel the disclosure of information that would otherwise remain in the hands of the defendant, see, for example, Robert J. Rhee, A Price Theory of Legal Bargaining: An Inquiry into the Selection of Settlement and Litigation Under Uncertainty, 56 Emory L.J. 619, 676-77 (2006) [hereinafter Rhee, A Price Theory], where the author explains how information disclosure will reduce informational uncertainty and thus lower litigation costs by encouraging earlier settlement, and is justified by the promise of vindicating a potentially meritorious claim.
109. See, e.g., John Bronsteen, Against Summary Judgment, 75 Geo. Wash. L. Rev. 522, 533 (2007) (noting that trial is often less expensive than discovery and pretrial motions).
110. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
111. See, e.g., Elizabeth J. Cabraser, Uncovering Discovery 33 (May 10, 2010) (unpublished manuscript), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Duke%20Materials/Library/Elizabeth%20Cabraser,%20Uncovering%20Discovery.pdf (noting an assumption by courts that litigants have "infinite" resources and arguing that discovery abuse is "diminish[ing] civil litigation into a game for the rich").
112. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
113. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
114. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
115. See, e.g., Lucian Arye Bebchuck & Howard F. Chang, The Effect of Offer of Settlement Rules on the Terms of Settlement, 28 J. Legal Stud. 489, 510 (1990) ("[S]ettlement terms. tend to favor the party with lower litigation costs. ").
116. Samuel Issacharoff & George Loewenstein, Unintended Consequences of Mandatory Disclosure, 73 Tex. L. Rev. 753, 768-71 (1995) (describing how asymmetric costs in the discovery process increase the bargaining power of the party imposing those costs).
117. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
118. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
119. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
120. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
121. See generally William B. Rubenstein, The Concept of Equality in Civil Procedure, 23 Cardozo L. Rev. 1865, 1882 (2002) ("[L]iberal discovery can also work against poorer litigants [who] can be flooded with discovery requests. ").
122. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
123. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
124. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
125. See Twombly, 550 U.S. at 572 (Stevens, J., dissenting) (noting that the Twombly complaint was dismissed "without so much as requiring [defendants] to file an answer denying that they entered into any agreement").
126. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
127. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
128. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
129. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
130. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
131. The heightened "plausibility" pleading standard was introduced by the Supreme Court in Bell Atlantic Corp. v. Twombly, in which the Court held that a complaint must contain "enough facts to state a claim to relief that is plausible on its face. " 550 U.S. 544, 570 (2007). In introducing this standard, the Court in Twombly rejected the long-standing pleading standard articulated in Conley v. Gibson, where the Court held that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim. " 355 U.S. 41, 45-46 (1957) (emphasis added).
132. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
133. See, e.g., U.S. Gypsum Co. v. Ind. Gas Co., 350 F.3d 623, 626 (7th Cir. 2003) ("A litigant may plead itself out of court by alleging (and thus admitting) the ingredients of a defense. ").
134. See, e.g., Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) ("Courts must consider. other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular. matters of which a court may take judicial notice. ").
135. See, e.g., In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1299 (7th Cir. 1995) (Posner, J.) (noting the concern of "forcing the defendants to stake their companies on the outcome of a single jury trial, or be forced by fear of the risk of bankruptcy to settle even if they have no legal liability").
136. Lauren N. Fromme, Unreliable Securities for Retirement Income Security: Certifying the ERISA Stock-Drop Loss, 64 Vand. L. Rev. 301, 311 n.53 (2010) ("The 'high variance' associated with class-action litigation stems from the possibility of having one enormous, aggregate verdict, as opposed to seeing losses spread out across multiple jurisdictions. ").
137. Richard A. Nagareda, Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism, 62 Vand. L. Rev. 1, 30 (2009) (noting that settlement pressure increases along with increases in variance).
138. Robert J. Rhee, The Effect of Risk on Legal Valuation, 78 U. Colo. L. Rev. 193 (2007) [hereinafter Rhee, The Effect of Risk], where the author argues that lawsuits should be viewed as assets.
139. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
140. Court Holding, 324 U.S. at 332-33.
141. The paradigmatic example of this phenomenon is the settlement that typically follows the certification of a class action. The potential risk of a class-wide verdict (variance) is often too large for the defendant to bear, so the defendant offloads the risk through settlement. However, the extent to which the certification of a class action exerts such a high level of settlement pressure as to be tantamount to "blackmail-a charge levied by Judges Easterbrook, Friendly, and Posner-is debatable. See Charles Silver, "We're Scared to Death:" Class Certification and Blackmail, 78 N.Y.U. L. Rev. 1357, 1359 (2003) ("[Many academics and] [e]mpirical researchers. dispute the blackmail claim. ").
142. Russell Korobkin & Chris Guthrie, Psychology, Economics, and Settlement: A New Look at the Role of the Lawyer, 76 Tex. L. Rev. 77, 120 (1997) (using a psychology experiment to support this conclusion). That said, the presence of a contingency fee arrangement on the plaintiffs' side can actually accentuate these risk preferences by enabling the lawyer herself to be more risk-seeking on a specific case among a larger portfolio of cases.
143. See Stephen C. Yeazell, Refinancing Civil Litigation, 51 DePaul L. Rev. 183, 200 (2001) (explaining that law firms give attorneys the flexibility to pursue a combination of both high-payout, high-risk cases and low-risk, stable-payout cases).
144. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
145. See In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320, 324 (3d Cir. 2008) ("An overlap between a class certification requirement and the merits of a claim is no reason to decline to resolve relevant disputes when necessary to determine whether a class certification requirement is met. ").
146. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
147. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
148. For instance, zero offers may be attributable to problems of litigation costs and informational asymmetries.
149. Zero offers are not as rare as early litigation models, such as the Priest-Klein hypothesis, would predict.
150. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
151. This was the strategy that Merck employed at the outset of suits brought by various plaintiffs alleging that its drug Vioxx caused heart attacks and strokes. See generally Howard M. Erichson & Benjamin C. Zipursky, Consent Versus Closure, 96 Cornell L. Rev. 265, 270-71 & n.12 (2011) (noting that Merck initially insisted that it would take each and every case to trial, but also speculating that "early trials and procedural battles may be seen as fights over bargaining position for the all-but-inevitable mass settlement"). Merck then took various cases to trial, using the results as guideposts for a global settlement of Vioxx claims. See generally id. at 278-80 (describing how the 2007 Vioxx settlement was reached).
152. That said, scholars have noted that the bright line between questions of law and fact under the Federal Rules is fading. See, e.g., Richard A. Epstein, Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments, 25 Wash. U. J.L. & Pol'y 61, 72 (2007) (pointing out that the "rigid division between fact and law that [appears] to be built into the Federal Rules" has long been eroding).
153. See, e.g., Jonathan T. Molot, How Changes in the Legal Profession Reflect Changes in Civil Procedure, 84 Va. L. Rev. 955, 988-94 (1998) [hereinafter Molot, Changes in the Legal Profession] (arguing that issue-narrowing is inadequately addressed through summary judgment due to evolving summary judgment standards and institutional obstacles in sifting through issues within a case).
154. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
155. The "sunk cost" fallacy is a psychological phenomenon whereby individuals incur further losses and/or take substantial risks in order to recoup prior losses. See, e.g., Hersh Shefrin & Meir Statman, The Disposition To Sell Winners Too Early and Ride Losers Too Long: Theory and Evidence, 40 J. Fin. 777, 789-90 (1985) (describing "sunk costs" in the context of stock and mutual fund sale decisions).
156. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
157. See, e.g., Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) ("Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. ").
158. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. ").
159. See, e.g., Harvey G. Brown, The Summary Jury Trial: Perspectives of Bench and Bar, 38 Hous. Law. 32, 33 (2001) (describing the summary jury trial as a mock trial with a real judge and jury but with a non-binding verdict). Critics, most prominently Judge Posner, have also argued for "hesitation" in the use of summary jury trials that enlarge jury service.
160. See Richard A. Posner, The Summary Jury Trial and Other Methods of Alternative Dispute Resolution: Some Cautionary Observations, 53 U. Chi. L. Rev. 366, 386 (1986).
161. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
162. See, e.g., Lynn M. LoPucki, Legal Culture, Legal Strategy, and the Law in Lawyers' Heads, 90 Nw. U. L. Rev. 1498, 1555 (1996) (describing the dissonance between "law on the books" and the more simplified and highly socialized "law in lawyers' heads").
163. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
164. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
165. This reality is well understood among lawyers and has empirical support. See Charlotte L. Lanvers, Different Federal District Court, Different Disposition: An Empirical Comparison of ADA, Title VII Race and Sex, and ADEA Employment Discrimination Dispositions in the Eastern District of Pennsylvania and the Northern District of Georgia, 16 Cornell J.L. & Pub. Pol'y 381, 382 (2007) (citing empirical evidence demonstrating "[d]ifferences in case dispositions [that] appear to depend on the district court studied").
166. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
167. See Robert G. Bone, Who Decides? A Critical Look at Procedural Discretion, 28 Cardozo L. Rev. 1961, 1980 (2007) [hereinafter Bone, Who Decides?] (noting that when judges have a reputation for frequently denying motions for summary judgment, parties will internalize that fact long before the summary judgment stage).
168. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
169. See Edward Brunet, Six Summary Judgment Safeguards, 43 Akron L. Rev. 1165, 1183 (2010) ("Modest quantities of summary judgment appeals suggest that the reported case law fails to reflect a representative set of issues. ").
170. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
171. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
172. Such trends have emerged, for example, in the context of the Federal Employers Liability Act (FELA). See, e.g., Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506 (1957) (noting that, under the FELA, "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury").
173. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
174. See, e.g., Raymond H. Brescia, The Iqbal Effect: The Impact of New Pleading Standards in Employment and Housing Discrimination Litigation, 100 Ky. L.J. 235, 239-40 (2011) (reporting that post-Iqbal, employment and housing discrimination claims are being dismissed at accelerated rates).
175. Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 Am. U. L. Rev. 553, 606 (2010) (finding that constitutional civil rights cases and various labor cases are now more likely to be dismissed by a 12(b)(6) motion than contracts, torts, and other types of cases).
176. Theodore Eisenberg & Charlotte Lanvers, Summary Judgment Rates over Time, Across Case Categories, and Across Districts: An Empirical Study of Three Large Federal Districts 7-8 (Cornell Law Sch. Research Paper, Paper No. 08-222, 2008), available at http://scholarship.law.cornell. edu/lsrp_papers/108 (finding that employment discrimination and civil rights claims were dismissed on summary judgment far more frequently than contract and tort claims).
177. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
178. Richard Delgado et al., Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 Wis. L. Rev. 1359, 1395-96, 1399 (noting that claimants who take cases to trial may be unusually interested in obtaining formalized justice).
179. See generally David L. Shapiro, Federal Rule 16: A Look at the Theory and Practice of Rulemaking, 137 U. Pa. L. Rev. 1969, 1984 (1989) ("The role of the judge. was to keep cases moving at a reasonable pace, and to see that cases not be needlessly tried. ").
180. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
181. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
182. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
183. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
184. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
185. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
186. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
187. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
188. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
189. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
190. For example, the U.S. District Court for the District of South Carolina prohibits the filing of settlements under seal, D.S.C. Local Civ. R. 5.03(E), and the Eastern District of Michigan has adopted a local rule limiting the duration of secret settlement agreements, E.D. Mich. Local R. 5.3. For a survey of federal court local rules addressing sealed records, see Robert Timothy Reagan et al., Fed. Judicial Ctr., Sealed Settlement Agreements in Federal District Court app. at B-1 to-27 (2004), available at http://www.fjc.gov/public/pdf.nsf/lookup/sealset3.pdf/$file/sealset3.pdf.
191. Compare, e.g., Christopher R. Drahozal & Laura J. Hines, Secret Settlement Restrictions and Unintended Consequences, 54 U. Kan. L. Rev. 1457, 1480-82 (2006) (arguing that sunshine laws and other similar reforms may lead to forum shopping or cause parties to leave the system of litigation altogether), with David A. Dana & Susan P. Koniak, Secret Settlements and Practice Restrictions Aid Lawyer Cartels and Cause Other Harms, 2003 U. Ill. L. Rev. 1217, 1226 ("[T]here are no legitimate interests protected by 'private' secrecy agreements that could not be as well protected by court orders where appropriate. ").
192. See Jack H. Friedenthal, Secrecy in Civil Litigation: Discovery and Party Agreements, 9 J.L. & Pol'y 67, 98 (2000) (suggesting a "presumption of nondisclosure" when courts consider materials that "have not been used at trial or on motion to obtain a substantive decision, " but suggesting that the opposite presumption be applied when cases involve "the propriety of the actions of a government entity" or when the materials involved "have been presented at trial. in support of a substantive determination").
193. Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 485-86 (1991) [hereinafter Miller, Confidentiality] (noting that "public access may be important when one of the settling litigants is a governmental agency, public entity, or official, when the settlement is a court-approved class settlement, or when there has been some other significant judicial participation in the process, " but concluding that in most cases, "absent special circumstances, a court should honor confidentialities that are bargained-for elements of settlement agreements").
194. See, e.g., Jules Coleman & Charles Silver, Justice in Settlements, 4 Soc. Phil. & Pol'y 102, 114-15 (1986) (noting that settlement deprives the public of information with regard to the state of the law in the form of judicial opinions and precedents).
195. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
196. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
197. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
198. Court Holding, 324 U.S. at 332-33.
199. Court Holding, 324 U.S. at 332-33.
200. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
201. Court Holding, 324 U.S. at 332-33.
202. Court Holding, 324 U.S. at 332-33.
203. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
204. Court Holding, 324 U.S. at 332-33.
205. As Chief Judge Joseph F. Anderson of the U.S. District Court for the District of South Carolina noted, "I will concede that the vast majority of cases are settled openly. I would also contend, however, that the number of sealed settlements is greater than the index books or docket sheets would suggest. " Joseph F. Anderson, Jr., Hidden from the Public by Order of the Court: The Case Against Government-Enforced Secrecy, 55 S.C. L. Rev. 711, 738 (2004).
206. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
207. Court Holding, 324 U.S. at 332-33.
208. There are other electronic sources of settlement information.
209. See, e.g., Tom Baker, Blood Money, New Money, and the Moral Economy of Tort Law in Action, 35 Law & Soc'y Rev. 275, 280 (2001) (finding a similar trend in personal injury litigation).
210. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
211. Bernard Black et al., Outside Director Liability, 58 Stan. L. Rev. 1055, 1067 (2006) (reporting similar trends).
212. Whitney R. Mauldin, Good Business/Bad Faith: Why the Insurance Industry Should Adopt a Good Faith Model, 44 Tort Trial & Ins. Prac. L.J. 151, 153 (2008).
213. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
214. Lauren K. Robel, The Myth of Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals, 87 Mich. L. Rev. 940, 955 (1989) (arguing that repeat players with first-hand knowledge of the content of unpublished opinions have informational advantages that better position them to prepare their cases).
215. But see Dawn R. Bonnett, The Use of Colossus>>To Measure the General Damages of a Personal Injury Claim Demonstrates Good Faith Claims Handling, 53 Clev. St. L. Rev. 107, 131-32 (2006) (defending the use of Colossus to determine settlement values on the grounds that it provides for more consistent claims handling).
216. Robert D. Bennett, How To Deal with Colossus, in 2 Ass'n of Trial Lawyers of Am., ATLA Annual Convention Reference Materials: Motor Vehicle Collision, Highway, and Premises Liability (2005).
217. See, e.g., David Dietz & Darrell Preston, Home Insurers' Secret Tactics Cheat Fire Victims, Hike Profits, Bloomberg. com, http://www.bloomberg.com/apps/news?pid= newsarchive&sid=AIOpZROwhvNI (last visited Oct. 22, 2012) (describing settlement databases as part of a conscious plan by insurers to underpay claimants). As just one example, the Wall Street Journal presented the case of a seventeen-year-old who was severely injured in a car accident caused by a drunk driver. See Jerry Guidera, "Colossus" at the Accident Scene: Insurers Use a Software Program To Pay Out Claims for Injuries, but Lawsuits Claim It's Misused, Wall St. J., Jan. 2, 2003, at C1. Colossus generated a payout of $31,588.
218. For instance, Stephen Yeazell recently advocated for the creation of electronic databases whereby basic information about settlements-including, for instance, the amount of damages claimed, the place suit was filed, and the ultimate settlement amount-would be compiled and made accessible online. See generally Steven C. Yeazell, Transparency for Civil Settlements: NASDAQ for Lawsuits? (UCLA Sch. of Law, Law & Economics Research Paper Series, Research Paper No. 08-15, 2011), available at http://ssrn.com/abstract=1161343. Similarly, Nora Engstrom has suggested that plaintiffs' attorneys who work on a contingency fee basis and seek damages in cases for personal injury or wrongful death should be subject to public disclosure requirements.
219. Nora Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. Rev. 805, 866-68 (2011).
220. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
221. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
222. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
223. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
224. To emphasize the need to redesign the Federal Rules for a world of settlement is not to take a position against the desirability of reforms that would move toward making trials once again commonplace. See Owen M. Fiss, The History of an Idea, 78 Fordham L. Rev. 1273, 1276 (2009) (arguing that the "strictures of public reason" imposed by adjudication-for instance, the confronting of grievances by a judge, the hearing of those grievances from affected parties, and the rendering of a decision based on principle-should be more robustly effectuated in a world of modern litigation). It is rather to acknowledge modern litigation realities and to adopt more modest ambitions for reform in the hope that such reform will be more likely. Although procedure cannot fix everything and no system of procedure will ever be perfect, the world of settlement demands better than our current system provides. To be sure, trial may not always live up to Fiss's ideals, and it is conceivable that the process of settlement can be imbued with some of the elements and values of trial.
225. See Howard M. Erichson, Foreword: Reflections on the Adjudication-Settlement Divide, 78 Fordham L. Rev. 1117, 1127 (2009) ("The divide between adjudication and settlement has become increasingly blurry. [E]ven where adjudication and settlement are neatly separable, the divide between them is not so stark as Fiss suggests in terms of the values they serve. ").
226. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
227. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
228. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
229. Fed. R. Civ. P. 26(b)(1).
230. The default of the Federal Rules is not to target discovery, but judges have authority to do so. See Fed. R. Civ. P. 16(b)(3)(B)(ii), 16(c)(2)(F), 26(b)(2)(C), 26(c) (detailing methods by which judges may constrain the scope of discovery).
231. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
232. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
233. See, e.g., Klein v. King, 132 F.R.D. 525 (N.D. Cal. 1990) (entering a court order for targeted, phased, and sequenced discovery).
234. Manual for Complex Litigation (Fourth) § 11.422 (2004) (endorsing targeted, phased, and sequenced discovery, but cautioning that the court must be sensitive to the risk that such discovery will be inefficient).
235. See generally James S. Kakalik et al., RAND Inst. for Civil Justice, Just, Speedy, and Inexpensive: An Evaluation of Judicial Case Management Under the Civil Justice Reform Act 16 (1996) (finding that strict discovery cut-offs reduced time to disposition and litigation costs).
236. This Article leaves for another day needed consideration of whether doctrines regarding evidentiary privileges and work product doctrines, in current form, impede the exchange of information in a manner that would help generate merits-based settlements.
237. See generally John K. Setear, The Barrister and the Bomb: The Dynamics of Cooperation, Nuclear Deterrence, and Discovery Abuse, 69 B.U. L. Rev. 569 (1989) (applying the game theory principles of nuclear deterrence to parties' decisions whether to engage in abusive discovery practices).
238. As a preliminary matter, the Rules Advisory Committee should consider the extent to which it would help, in some instances, to have special masters with expertise in particularized substantive areas guide issue-targeted discovery. This could help informationally disadvantaged claimants craft narrower requests, either in the first instance, or after a limited period of initial discovery on a given issue.
239. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
240. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
241. See Fed. R. Civ. P. 12, 56(d).
242. See Colin T. Reardon, Note, Pleading in the Information Age, 85 N.Y.U. L. Rev. 2170, 2206 (2010) (describing such a reform).
243. Geoffrey P. Miller, A Modest Proposal for Securities Fraud Pleading After Tellabs 17-18 (New York University Law and Economics Working Papers, Paper No. 265, 2011), available at http://lsr.nellco.org/nyu_lewp/265.
244. Cottage Sav. Ass'n v. Comm'r, 499 U.S. 554, 566 (1991).
245. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
246. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
247. The internet is of course a big part of this story. Websites provide claimants and attorneys with access to information about potential defendants and alleged wrongdoing.
248. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
249. As another variant of this idea, Fed. R. Civ. P. 27 could be revised to permit pre-suit discovery not just for purposes of perpetuating testimony, but also for preliminary investigation of claim viability, proper parties to sue, and the like. Such arrangements have begun to emerge in a few states, most prominently Texas. See Tex. R. Civ. P. 202.
250. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
251. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
252. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
253. 5 U.S.C. § 552 (2006).
254. See Pete Weitzel, Sunshine in Gov't Initiative, Fewer Requests, Fewer Responses, More Denials 2 (2009), available at http://www.sunshineingovernment.org/stats/highlights.pdf (finding that agencies miss the statutory response deadline in a majority of cases).
255. For instance, the recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act contains a number of provisions that require disclosures by regulated entities. See, e.g., Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 115, 124 Stat. 1376, 1403-06 (2010) (to be codified at 12 U.S.C. § 5325) (detailing one form of enhanced public disclosure). Of course, the efficacy of such disclosure provisions will require research of the Act's practical effects in the coming years.
256. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
257. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
258. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
259. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
260. It is not entirely clear whether a fee-shifting mechanism could be introduced by the Rules Advisory Committee under its limited rulemaking power or if Congress must introduce such a regime. This Article does not take up that debate.
261. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
262. The option to drop one's case may not sufficiently mitigate this concern for cases in which claimants are at a significant informational and pecuniary disadvantage.
263. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
264. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
265. There is precedent for limited pleading-stage discovery: Judges often allow targeted discovery before deciding a motion to dismiss for lack of subject matter or personal jurisdiction. It is unclear whether judges have authority to do so under the Federal Rules when deciding a motion to dismiss for failure to state a claim when faced with heightened pleading standards. Compare In re Graphics Processing Units Antitrust Litig., 527 F. Supp. 2d 1011, 1032-33 (N.D. Cal. 2007) (noting that narrowly-tailored discovery might be permitted before the plaintiff filed an amended complaint, provided that such discovery is deemed necessary), with In re Flash Memory Antitrust Litig., No. C 07-0086 SBA, 2008 U.S. Dist. LEXIS 62278, at *29 (N.D. Cal. Jan. 4, 2008) (stating that there is no authorization in the Federal Rules for pre-dismissal discovery).
266. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
267. 355 U.S. 41, 45-46 (1957). Such a regime implicitly rejects the new-and equally incorrect-foundational premise injected into the Federal Rules by Twombly and Iqbal that, across the entire swath of cases brought in federal court, plaintiffs have access to public information sufficient to support their claims under the heightened standard.
268. Geoffrey P. Miller, Preliminary Judgments, 2010 U. Ill. L. Rev. 165, 165 (2010).
269. Court Holding, 324 U.S. at 332-33.
270. Court Holding, 324 U.S. at 332-33.
271. Court Holding, 324 U.S. at 332-33.
272. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
273. See, e.g., Robert G. Bone & David S. Evans, Class Certification and the Substantive Merits, 51 Duke L.J. 1251, 1331 (2002) (imploring courts to evaluate the merits of the plaintiffs' cases before certifying in order to align the settlement-inducing power of certification with the likelihood of success on the merits).
274. Richard Marcus, Reviving Judicial Gatekeeping of Aggregation: Scrutinizing the Merits on Class Certification, 79 Geo. Wash. L. Rev. 324, 372 (2011) (calling this shift toward merits scrutiny a "positive development").
275. See, e.g., Michael J. Kaufman & John M. Wunderlich, The Unjustified Judicial Creation of Class Certification Merits Trials in Securities Fraud Actions, 43 U. Mich. J.L. Reform 323, 323 (2010) (arguing against the practice of merits-based certification because of inconsistencies with legal precedent, infringement upon the right to a jury, and unfounded fear of post-certification discovery costs).
276. Steig D. Olson, "Chipping Away": The Misguided Trend Toward Resolving Merits Disputes as Part of the Class Certification Calculus, 43 U.S.F. L. Rev. 935, 939 (2009) (contending that this shift "make[s] class certification a more onerous and less efficient process").
277. See In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 316 (3d Cir. 2008) ("An overlap between a class certification requirement and the merits of a claim is no reason to decline to resolve relevant disputes when necessary to determine whether a class certification requirement is met. ").
278. Particularly in cases characterized by significant informational imbalances, the timing for the issuance of a preliminary judgment might also prove critical. To the extent the judge is at an informational disadvantage about the facts of the dispute (as can often be the case), tying the issuance of a preliminary judgment to a party's request creates a strategic incentive for the informationally advantaged party to obscure damaging facts. That party, perhaps through production to the court of either voluminous or selectively revealed information, could create the appearance that "sufficient" information exists for the rendering of the preliminary judgment. Therefore, the timing for the issuance of a preliminary judgment is more appropriately tied to the end of a discrete discovery phase, which will better ensure that presentation of relevant materials to the judge is provided through the lens of both parties.
279. Rule 1 provides that "[t]hese rules govern the procedure in all civil actions and proceedings in the United States district courts, " with those limited classes of cases enumerated in Rule 81 providing the only exceptions. Fed. R. Civ. P. 1.
280. Fed. R. Civ. P. 81. These foundational principles are generally understood to constrain the rulemaking process under the Rules Enabling Act. See Stephen B. Burbank, Pleading and the Dilemmas of "General Rules, " 2009 Wis. L. Rev. 535, 541-42 [hereinafter Burbank, Pleading]. Professor Burbank has argued, however, that the Rules Enabling Act does not necessarily command such an interpretation.
281. See Burbank, The Transformation of American Civil Procedure: The Example of Rule 11, 137 U. Pa. L. Rev. 1925, 1934-35 (1988) (questioning whether the legislative history of the 1934 Rules Enabling Act requires transsubstantive rules).
282. See, e.g., David Marcus, The Past, Present, and Future of Trans-substantivity in Federal Civil Procedure, 59 DePaul L. Rev. 371, 376 (2010) (setting forth the meaning of transsubstantivity).
283. See, e.g., Stephen B. Burbank, Of Rules and Discretion: The Supreme Court, Federal Rules and Common Law, 63 Notre Dame L. Rev. 693, 716-17 (1988) [hereinafter Burbank, Of Rules and Discretion] (basing his argument that strict adherence to procedural transsubstantivity is untenable on the fact that specialized procedural rules and approaches already exist, such as in the case of RICO lawsuits, civil rights litigation, and complex litigation).
284. Stephen N. Subrin, Federal Rules, Local Rules, and State Rules: Uniformity, Divergence, and Emerging Procedural Patterns, 137 U. Pa. L. Rev. 1999, 2025 (1989) (noting the emergence of "procedures for particular types of cases").
285. See, e.g., Stephen B. Burbank & Linda J. Silberman, Civil Procedure Reform in Comparative Context: The United States of America, 45 Am. J. Comp. L. 675, 699-700 (1997) (describing transsubstantive procedure as a myth, given the amount of discretion trial judges have).
286. Paul D. Carrington, Politics and Civil Procedure Rulemaking: Reflections on Experience, 60 Duke L. J. 597, 621-22, 644 (2010) (citing jury impaneling and Rule 11 sanctions in illustrating the breadth of procedural discretion granted to judges). But see (arguing that this claim about the relationship between judicial discretion and transsubstantivity sweeps too broadly).
287. See, e.g., Fed. R. Civ. P. 16 (laying out various procedures that grant judges increased discretion during a case).
288. See Christopher M. Fairman, Heightened Pleading, 81 Tex. L. Rev. 551, 567-90 (2002) (describing lower courts' efforts to forge substance-specific pleading requirements).
289. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
290. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
291. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
292. See Robert G. Bone, "To Encourage Settlement": Rule 68, Offers of Judgment, and the History of the Federal Rules of Civil Procedure, 102 Nw. U. L. Rev. 1561, 1619 (2008) ("The idea that the Federal Rules of Civil Procedure should apply uniformly to all substantive law claims. still has a strong hold on rulemaking today. ").
293. Further empirical work is needed to determine the prevalence of these sorts of cases. One report, provided over ten years ago, indicated that a fair number of cases in federal court did not need discovery, but that in the cases that did have discovery, discovery costs accounted for ninety percent of litigants' costs. Memorandum from Judge Paul V. Niemeyer, Chair, Advisory Comm. on Civil Rules, to Judge Anthony J. Scirica, Chair, Comm. on Rules of Practice and Procedure (May 11, 1999).
294. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
295. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
296. Indeed, there is a strong suspicion among scholars that complex, "Cadillac" procedures are pricing more modest cases involving low-or even medium-value claims out of the system. See Samuel Estreicher, Beyond Cadillacs and Rickshaws: Towards a Culture of Citizen Service, 1 N.Y.U. J.L. & Bus. 323, 325-27 (2005).
297. A point of clarification is in order. Consistent with the approach taken by scholars who have proposed substance-specific procedural reforms, it is not my argument that we should adopt entirely separate procedural regimes for every different body of substantive law. This is not a call, for instance, for a return to the common-law writ system. See, e.g., Stephen N. Subrin, The Limitations of Transsubstantive Procedure: An Essay on Adjusting the "One Size Fits All" Assumption, 87 Denv. L. Rev. 377, 388 (2010) ("Those who cherish transsubstantive procedure are right that we do not want to return to. the writ system. ").
298. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
299. For example, employment discrimination cases often concern low-value claims held by low-wage earners. See generally Michael Selmi, The Value of the EEOC: Reexamining the Agency's Role in Employment Discrimination Law, 57 Ohio St. L.J. 1, 32-40 (1996) (noting that the vast majority of race and gender discrimination cases brought by the Equal Employment Opportunity Commission involved low-value claims and often featured lowwage earners as plaintiffs).
300. J. Maria Glover, Beyond Unconscionability: Class Action Waivers and Mandatory Arbitration Agreements, 59 Vand. L. Rev. 1735, 1740-47 (2006) (describing how the prevalence of contracts of adhesion provides an increasingly greater opportunity for class action waivers to effectively prohibit low-value claims).
301. J. Maria Glover, Beyond Unconscionability: Class Action Waivers and Mandatory Arbitration Agreements, 59 Vand. L. Rev. 1735, 1740-47 (2006) (describing how the prevalence of contracts of adhesion provides an increasingly greater opportunity for class action waivers to effectively prohibit low-value claims).
302. Such mechanisms began appearing in what are known as "third-generation" arbitration clauses. For example, AT&T implemented such an arbitration clause in 2006, which "allocates the entire cost of arbitration [on meritorious claims] to [the defendant]".
303. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
304. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
305. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
306. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
307. See Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, 156 U. Pa. L. Rev. 1439, 1530 n.365 (2008) (citing the Truth in Lending Class Action Relief Act of 1995, Pub. L. No. 104-12, 109 Stat. 161 (codified as amended at 15 U.S.C. § 1640 (2006).
308. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
309. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
310. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
311. At some level, this new vision of procedure requires rethinking the 1938 reformers' "hands off" procedural approach. First, this "hands off" approach perpetuates a fiction.
312. Stephen B. Burbank & Tobias Barrington Wolff, Redeeming the Missed Opportunities of Shady Grove 30 (Univ. of Pa. Law Sch. Pub. Law & Legal Theory Research Paper Series, Research Paper No. 10-31, 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1677608. Second, the "hands off" approach stands as an impediment to meaningful reform: Procedure cannot simply be viewed as a potential problem.
313. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
314. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
315. Such additional resources could well come in the form of court-annexed arbitrators, mediators, or subject-matter-expert special masters, whose discretion to perform pretrial tasks should ideally be bounded by the reforms set forth herein. Such arrangements give rise to a number of questions regarding, for instance, institutional competence, mechanical operation, and-more broadly-the appropriate theoretical and normative underpinnings of alternative dispute resolution mechanisms more generally. Such questions are for another day.