An old judicial role for a new litigation era.

• Author: Molot, Jonathan T.

INTRODUCTION

The judicial role today is not what it used to be, or so we are told. The traditional judicial role was characterized by two guiding principles: Judges relied on the parties to frame disputes and on legal standards to help resolve them. (1) In pretrial practice today, however, overcrowded dockets and overzealous litigants have led judges to stray from this passive role. Rather than sit back and wait for parties to frame legal disputes, many judges take an active, largely discretionary approach to pretrial case management. In class action litigation as well, judges have adopted a new role, albeit for somewhat different reasons. In this context, the problem is not that plaintiffs' attorneys are too zealous on behalf of their clients, but that they often are not zealous enough. It therefore falls upon judges to look out for the interests of absent class members and to balance those interests, often without any meaningful legal guidance.

Litigation is changing so rapidly that even new models of judging designed to update traditional ones have quickly become outdated. In an influential article in the 1970s, Abram Chayes pointed out how the role of the judge had evolved in the mid-twentieth century, as judges presided over new "public law" actions. (2) By the late 1990s, however, Professor Chayes's model itself was outdated. Chayes may have succeeded in addressing the civil rights class actions of the 1960s and 1970s, but he failed to anticipate and "capture the dynamics of modern mass tort litigation," which came to dominate the litigation landscape in the 1980s and 1990s. (3) Given the tremendous uncertainty that surrounds the judicial role in mass tort actions, and in the settlement of mass tort suits in particular, (4) scholars have challenged the academy to develop yet another new model of litigation, one that can guide judges in mass tort litigation as well as in public law class actions. (5)

Instead of continually searching for new models of litigation, I suggest that we reexamine old ones. Contemporary civil litigation no doubt looks different from classic understandings of adjudication, but if judges preside over a different litigation landscape today, this does not mean that the judge's traditional adjudicative role is irrelevant. When we reconsider traditional conceptions of judging, we see that some of the most important controversies in civil procedure today arise not because judges preside over new types of disputes, but rather because judges too often have failed to structure their new responsibilities in a manner that reflects their traditional adjudicative role.

Sometimes judges do find ways to structure new responsibilities so as to remain within the confines of their traditional role, and when they manage to do so their conduct generates very little controversy. In pretrial practice, for example, some judges rely on the summary judgment mechanism--rather than informal case management strategies--to cope with the problems of overzealous attorneys and clogged dockets. Unlike informal case management techniques that are judge-initiated and allow judges broad discretion, the summary judgment mechanism relies on the parties to frame disputes and gives judges legal standards upon which to base their decisions. In class action practice as well, judges sometimes have taken on new responsibilities without straining the boundaries of their traditional adjudicative role. In certain categories of class action litigation that aggregate large numbers of small claims, such as antitrust or securities suits, judges called upon to decide whether to certify a class for litigation ordinarily need not themselves frame arguments on behalf of absent class members but instead can rely on plaintiffs' attorneys and defendants to do so. Moreover, because plaintiffs' attorneys and defendants so often battle over the propriety of class certification, a rich body of case law has developed that can assist judges in making their certification decisions.

But if judges sometimes have structured new responsibilities so as to provide themselves with the litigant input and legal criteria they need to perform their traditional adjudicative role, very often they have not. In pretrial practice, many judges rely on informal case management techniques like the settlement conference, which allow them a level of control and a degree of discretion that strain the boundaries of their traditional role. In class action litigation, judges sometimes are willing to approve "settlement" class actions--actions where lawyers for both sides agree to a settlement even before a class has been certified--without meaningful input from affected parties or well-defined legal standards to guide their analysis. In coping with new partisanship problems in pretrial practice or new agency problems in class action litigation, judges often are willing to ignore their traditional role, rather than to update it.

When judges ignore their traditional adjudicative role and proceed without the litigant input or legal criteria to which they are accustomed, their conduct invites controversy. It is no coincidence that the two areas of civil procedure that arguably have generated the most intense controversy in recent years--judicial management of pretrial practice and judicial review of class action settlements--also are areas where judges have strayed furthest from their traditional adjudicative role. Yet critics of contemporary judicial conduct in these two fields rarely are willing to invoke tradition directly in support of their arguments. If these scholars would like to see the judiciary hew more closely to its traditional adjudicative role, they do not openly embrace this as their goal. In an age when it is out of vogue to invoke tradition for tradition's sake, and when the traditional adversarial process has come to be viewed with considerable skepticism, (6) scholars are reluctant to rely on an old judicial role to tackle new litigation problems.

The failure among scholars, judges, and lawyers to pay more attention to the traditional judicial role has been costly. When we compare judicial conduct today with traditional judicial behavior, we not only better understand contemporary controversies in pretrial practice and class action litigation, but also can make progress toward resolving these controversies. Indeed, this Article uses a traditional model of judicial behavior that has been overlooked in contemporary scholarship to advance solutions to some of the most pressing doctrinal problems in civil procedure today. My goal is not to turn back the clock on civil litigation or to deprive litigants of the many benefits that have come along with evolutions in the judicial role. But l do advocate a degree of fidelity to tradition that is sorely missing from contemporary judicial practice and legal scholarship.

When we reconsider a traditional judicial role that has been neglected in recent decades, we find three strong reasons why judges should remain faithful to it, even as they respond to new challenges. First, the judiciary's traditional adjudicative role reflects its core institutional competence. Judges are ideally suited to resolve party-framed disputes, rather than to frame disputes themselves, because they lack the institutional capacity that other government officials have to initiate and conduct factual investigations. As politically insulated officials, judges also are better equipped to render judgments when they can look to some identifiable body of law to guide them. When judges ignore these features of their traditional adjudicative role they strain the boundaries of their institutional abilities.

Second, the traditional judicial role reflects the judiciary's place in the constitutional structure. The characteristics of the judicial role that legal process scholars like Lon Fuller identified in the mid-twentieth century are the very same characteristics that dominated the Founders' thinking two centuries earlier when they first included an independent judiciary in the constitutional framework. Like mid-twentieth-century scholars, the Founders expected judges to rely on parties to frame disputes and on an identifiable body of law to supply rules of decision. This Article demonstrates that if these characteristics of the judicial role are not constitutionally required, they are at least constitutionally inspired.

Third, precisely because the traditional judicial role reflects the judiciary's institutional competence and constitutional authority, nineteenth- and twentieth-century judges went to great lengths to preserve its essential attributes even as they responded to new challenges. Although scholars today tend to assume that in a new litigation era we cannot confine judges to their old manner of doing things, this assumption overlooks that the problems judges face in pretrial practice and class action litigation bear a striking resemblance to problems that judges confronted, and largely overcame, in the past.

Judicial management of pretrial practice may seem new, largely because pretrial practice itself is new, but we should not forget that judges have been responsible for managing trial practice for quite some time. During the formative years of judicial trial management in the nineteenth century--when judges developed their now-formidable powers over the evidence litigants present and the weight that juries may accord it--judges confronted a dilemma similar to the one they face today. While some people defended a more active judicial role to rein in partisan attorneys and confused jurors, others questioned the wisdom and fairness of allowing judges to stray from their traditional, passive role and interfere with the rights of litigants to present their cases to juries.

The controversy that surrounds the judicial role in class action settlements today also has strong historical parallels. The principal-agent relationship...