DIGITAL CIVIL PROCEDURE.

• Author: Engstrom, David Freeman

INTRODUCTION 2244 I. DISCRETION, POWER, AND METHOD IN CIVIL PROCEDURE 2248 A. Judicial Discretion 2248 B. Procedure and Power 2252 C. Empirical Method 2254 II. THE LEGAL TECH CHALLENGE: RULE RECKONINGS 2258 A. Traffic Rules: "Virtual" Justice and the Migration Online 2260 B. Information Rules: From TAR Wars to Legal Tech's Great Beyond 2267 C. Traffic + Information Rules: From ODR 1.0 to ODR 2.0 2273 III. THE WAY FORWARD: A DIGITAL RESEARCH AGENDA 2283 INTRODUCTION

"Crisis rhetoric" has long pervaded debate over American civil procedure. (1) But amidst the hue and cry, a small set of voices has broken through, rigorously but passionately excavating the deep structure of American procedure-making. That group's unrivaled leader is Steve Burbank. No scholar has done more to map the tectonics of the system--its explicit and implicit siting of discretion, its separation of powers subtleties, and its capacity (some would say incapacity) for empirically informed judgment about the consequences of rule choices. More importantly, no single scholarly voice offers a better springboard for thinking about what the next era of civil procedure might hold. And it is precisely clear-eyed thinking that is needed now, as a potent new force enters the stage: the steady advance of digital legal technologies, or "legal tech" for short, within the civil justice system. From Al-fired tools that perform e-discovery and predict case outcomes to the migration from in-person court proceedings to "virtual" ones accelerated by the COVID-19 pandemic, few would disagree that civil litigation in 2030 will look different from civil litigation at the start of 2020. Lawyers, judges, and academics should begin thinking about how the civil justice system will change--and how civil procedure and its study may need to adapt in response.

This Essay argues that the digitization of the civil justice system will be particularly fraught because of a dynamic that has come to preoccupy a new generation of procedure scholars, but one that Professor Burbank has articulated and analyzed for decades. In a procedural system committed to transsubstantive, "general" rules and run through with anxieties about substance-specific procedure, decision-making discretion that accounts for modern litigation's multitudinous forms must be injected back into the system somewhere. And that means judges, and more specifically trial judges, get to make it up as they go. (2) Whether pervasive judicial discretion is a good thing or bad thing--and opinion runs the gamut (3)--large swathes of American procedure have become a common law enterprise or even improvisational and "ad hoc," fit to purpose for a particular case, with little appellate oversight at the back end. (4)

Proceeding from this core insight, this Essay sketches two types of rule reckonings that lie ahead as new digital technologies move from the periphery to the heart of the civil justice system. One I call traffic rules--rules that determine how and when parties are moved from in-person court proceedings to new online fora. Second are information rules that govern the exchange of information in a rapidly digitizing litigation system that will produce more and more of it, from e-discovery to case outcome predictions, but often in unevenly distributed ways. At least initially, and for reasons Professor Burbank has long identified, the process of adapting analog versions of these traffic and information rules to a digital world is likely to remain the province of judges, particularly trial judges, operating within the considerable pools of discretion afforded them by American procedure. But in time, digitization will place significant pressure on American ways of procedure-making. As judges decide how much to weigh party consent in moving parties online, which machine outputs are protected work product, or which cases to push to online dispute resolution (ODR) platforms and with what algorithmic tools to inform parties about their likely prospects in court to facilitate settlement, the question will be whether judges can tailor existing rules to new digital contexts or whether more sweeping changes to the rules, or even entirely new governance and oversight regimes, might be warranted. In making these decisions, judges--and, in time, rulemakers and legislators--will help chart the digital future of the civil justice system.

As we contend with these rule reckonings and usher in a new digital civil procedure, there is no better guide than Professor Burbank and no better example than his magisterial body of scholarship. To read that work is to enroll in a master class in the great vectors of American procedure: discretion, power, complexity, and transsubstantivity. Those contributions alone would be the envy of any legal scholar. But to stop there would drastically shortchange the breadth and depth of his contributions. For one can also read his work as an extended methodological exhortation. Sometimes, this took the form of old-fashioned spadework in primary sources. Faced with a towering, elegant, and altogether Ely-esque account of the Rules Enabling Act, (5) Burbank replied with a 180-page excavation of the Act's decades long gestation and decisively showed its primary purpose was to allocate power prospectively between Court and Congress, not to protect past lawmaking or state substantive law. (6) Roll up your sleeves, his work announced, and you get to places that raw intellect and a powerful pen alone cannot. No less important has been his exemplary efforts, without formal methods training, to embrace harder-edged empiricism. Amidst growing but largely anecdotal concern about American procedure-making, Burbank, working with Sean Farhang, popped the hood and offered a superhumanly rigorous accounting of the engine of its three main institutional actors: Advisory Committee, Court, and Congress. (7) Many proceduralists, of course, have called for an empirical turn in research, most famously Geoffrey Hazard back in 1963 as behavioralist social science gathered steam. (8) But Professor Burbank has done more than make empirical calls. Leading by example, he has embodied them. As with his work on the Enabling Act's origins, sweat equity, not cheap talk, defines his scholarship.

It's at that intersection--a deep understanding of power and discretion, on the one hand; methodological innovation, on the other--that rests the future of civil procedure as new technologies sweep into the system. Digitization of litigation will press on all of the tensions in American procedure-making that Professor Burbank has charted. It will enflame separation of powers conflict. It will open up new and worrying distributive dynamics. It will defy American procedure's claims to neutrality and its bracketing of resource asymmetries at the altar of adversarialism. It will generate litigation alternatives that further erode the monopoly position of judge and court and test our commitment to public deliberative exercises and reason giving. And it will test the system's ability to make empirical judgments even as it creates oceans of new data that require new methods to unpack and interrogate. Most important of all, it will bring sustained and powerful pressure on the key questions at the heart of Professor Burbank's scholarly work: not just what the rules should be, but who gets to make them. It is hard to imagine a more fitting forum, or a better way to begin to think through these questions as litigation enters the digital era, than a celebration of Professor Burbank's inspired leadership as a lawyer and legal scholar on each of these fronts.

The remainder of this Essay proceeds as follows. Part I describes where American procedure has been, as masterfully surveyed by Professor Burbank. Part II looks to the future and describes two types of rule reckonings, across three new contexts, that lie ahead in a rapidly digitizing litigation system. Part III steps back and asks what role procedure scholars might play as those reckonings sort out, returning once more to Professor Burbank's field-shaping leadership as a guide.

1. DISCRETION, POWER, AND METHOD IN CIVIL PROCEDURE

   To think about where American procedure might go in a fast-digitizing litigation system, one must first take stock of where it has been and where it currently sits. A trio of slow-moving but powerful tectonic trends--deepening judicial discretion, procedure's steady politicization, and increasing but still imperfect empirical transparency over the system's workings--have defined the last century of American procedure, and Professor Burbank has brilliantly mapped each.

   1. Judicial Discretion

      First and foremost are growing pools of judicial discretion. Some of this expansion has come in the clear light of day, in marquee Supreme Court decisions expanding the role of dispositive motions: first summary judgment, blessed in the Court's 1986 Celotex trilogy, (9) then motions to dismiss via the advent of plausibility pleading in Twombly and Iqbal. (10) Some of it has taken more diffuse and less tractable forms. Managerial judging, once bitterly debated, has become the norm in complex litigations, buoyed by amendments to Rule 16 and 26 giving judges substantial control over the pacing, sequencing, and settlement of litigation. (11) Deepening pools of judicial discretion have also spilled into the exotic. Nearly all of the devices that have evolved in multidistrict litigation (MDL), from plaintiff steering committees to bellwether trials to Lone Pine orders, are nowhere authorized by rule or statute and rarely subject to meaningful appellate review. (12)

      But the trend toward judicial discretion is no less evident beyond the elite precincts of mass torts MDLs or antitrust class actions, in the smaller-bore, workaday litigation contexts that make up the bulk of the work of American courts. A good example comes in judicial treatment of pro se litigants--a burning issue arising...