Emory Law Journal

Volume 65Issue 6
The 2015 Pound Symposium, The "War" on the U.S. Civil Justice System (Co-Sponsored by the Pound Civil Justice Institute and Emory University School of Law)
Articles & Essays

Where Have All the Cases Gone? The Strange Success of Tort Reform Revisited

Stephen Daniels, Joanne Martin | 65 Emory L.J. 1445 (2016)

Just over a decade ago, we published an article in the Emory Law Journal titled The Strange Success of Tort Reform, which was inspired by our interest in the possible connection between tort reform and the declining number and rate (per 1000 population) of tort cases. Since that article’s publication, there has been considerable and continuing distress about the apparent demise of the civil jury trial. In this Article we revisit our earlier argument about tort reform’s strange success with this concern in mind. In doing so, we agree—to an extent—with those skeptical about a decline in the number of jury trials. At least in terms of auto accident cases—the most prevalent kind of tort case and the type of case that accounts for a large proportion of jury trials—it is not that jury trials are vanishing, it is the cases themselves. We think the important question is more about whether there is something affecting the number of cases that come into the civil justice system, rather than just how they leave it.

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Exodus from and Transformation of American Civil Litigation

Richard D. Freer | 65 Emory L.J. 1491 (2016)

The story of American federal civil litigation over the past half century is one of exodus and of transformation—exodus from and transformation of the traditional model of “court litigation.” The exodus has taken various paths, especially contractual arbitration. Arbitration has become mandatory for claims by consumers and employees. In approving this expansion, the Supreme Court increasingly makes clear that it sees nothing special about court litigation—that it and arbitration are mechanisms of equal dignity. Courts today are less often fora for public adjudication and law generation than monuments to mediation. Litigants not cajoled into settlement are hustled through a front-loaded process focused increasingly on adjudication without trial. The driving force of both the exodus from court litigation and its transformation is the perception of excessive caseload. There are not enough Article III judges to do the job in accord with the historical model. Thus, the Court and drafters of the Federal Rules have pursued two safety valves: getting disputes out of the courts and streamlining litigation to foster pretrial resolution. They have pursued exodus and transformation.

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Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket

Myriam Gilles | 65 Emory L.J. 1531 (2016)

In recent years, much attention has been paid to the startling disparities in income and wealth in contemporary U.S. society. The implications of this wealth gap reverberate across the socio-legal landscape, but nowhere is the gap more glaring than in the civil docket, where litigation—particularly class actions brought by or on behalf of low-income consumers and employees—is on the verge of disappearing. The unavailability of class litigation is disproportionately more harmful to low-income groups than any other legal impairment, for a number of reasons. As contemporary judges see fewer civil cases brought by or on behalf of poor people, one might expect that they will grow further out of touch with and more ill-equipped to manage these claims; and as this reservoir of wisdom empties, judicial attitudes towards the poor may harden, growing disdainful and ungenerous. Accordingly, when judges are sporadically faced with the legal claims of low income groups, it becomes harder to spot (or easier to ignore) patterns of exploitative, abusive conduct by corporate or governmental actors.

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Class Actions in the Year 2026: A Prognosis

Robert H. Klonoff | 65 Emory L.J. 1569 (2016)

In this Article, I offer my predictions on what the class action landscape will look like a decade from now. Those predictions fall into several categories: First, I discuss whether the basic class action framework—Federal Rule of Civil Procedure 23—is likely to be revamped in the next decade. I predict that there is little chance that the basic structure of Rule 23 will change. Second, I examine the likely state of class action jurisprudence in the year 2026. Third, I focus on the administration and resolution of class actions and offer two predictions: (1) by 2026, a significantly larger number of class action cases will go to trial than at any time since 1966; and (2) technological changes will fundamentally alter the mechanics of class action practice, offering more sophisticated tools for notice, participation by class members, and distribution of settlement proceeds.

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The Roles of Litigation in American Democracy

Alexandra D. Lahav | 65 Emory L.J. 1657 (2016)

Adjudication is usually understood as having two functions: dispute resolution and law declaration. This Article presents the process of litigation as a third, equally important function and explains how in litigation, participants perform rule of law values. Performativity in litigation operates in five ways. First, litigation allows individuals, even the most downtrodden, to obtain recognition from a governmental officer (a judge) of their claims. Second, it promotes the production of reasoned arguments about legal questions and presentation of proofs in public, subject to cross examination and debate. Third, it promotes transparency by forcing information required to present proofs and arguments to be revealed. Fourth, it aids in the enforcement of the law in two ways: by requiring wrongdoers to answer for their conduct to the tribunal and by revealing information that is used by other actors to enforce or change existing regulatory regimes. And fifth, litigation enables citizens to serve as adjudicators on juries.

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The Administrative State and the Common Law: Regulatory Substitutes or Complements?

Catherine M. Sharkey | 65 Emory L.J. 1705 (2016)

The modern administrative state looms larger than ever, and grows at an ever accelerating pace. U.S. government spending on federal regulatory activity in 2014 is estimated to have been $49.8 billion. Federal agencies now employ approximately 284,000 people, and the Code of Federal Regulations now weighs in at over 175,000 pages. Not everyone is pleased with these developments. Chief Justice Roberts, Justices Thomas, Alito, and the late Justice Scalia have expressed their displeasure, indeed their alarm, with consistency, clarity, and vigor. They warn that the rise of administrative agencies, and the attendant ascendance of doctrines of mandatory judicial deference to agency interpretations of federal law, signals no less than the end of our government’s separation-of-powers structure, and our right to live our lives without fear of bureaucratic encroachment at every turn. As it turns out, however, the same alarm bell was sounded decades ago—by Roscoe Pound. After outlining the uncannily similar attitude towards agencies expressed by Pound and our Supreme Court’s conservative core, this Article probes how those views diverge.

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The Role of Influence in the Arc of Tort “Reform”

Georgene Vairo | 65 Emory L.J. 1741 (2016)

No talk about tort reform can begin without a quote from Shakespeare’s Henry VI: “The first thing we do, let’s kill all the lawyers.” There has been a lot of debate about exactly what Shakespeare meant. Was he referring to lawyers as mere parchment pushers who worked to the detriment of the people? Or was he talking about lawyers as a bulwark against tyranny? No matter what Shakespeare meant, I think we can probably agree that right now the modern translation of this quote is “Let’s kill all the plaintiffs’ lawyers until we need one.” This Essay discusses the evolution of tort reform—beginning with the seeds of that evolution in the 1960s—and evaluates whether the reform campaign was successful.

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