AuthorColeman, Brooke D.

TABLE OF CONTENTS INTRODUCTION 348 I. CIVIL LITIGATION SYSTEM INPUTS 353 A. Procedural Inputs 354 B. Political, Ideological & Attitudinal Inputs 356 II. THE EVOLUTION OF PROCEDURE 361 A. Adaptation 363 1. Multidistrict Litigation 363 2. Discovery Reform 368 B. Migration 376 C. Extinction 386 III. ENDANGERED CLAIMS & PROCEDURAL POLICY 389 A. Endangered Claims 389 B. An Endangered Claims Act Approach 393 C. Enforcing Claim Conservation 401 D. Testing the Hypothesis 403 CONCLUSION 405 INTRODUCTION

The Florida Panther, or Puma concolor coryi, is a 150-pound cat that once roamed the southeastern United States in great numbers. (1) With the advent of unregulated hunting and sprawling development into their natural habitat, (2) the number of panthers dwindled to a population size of approximately fifty cats. (3) In 1967, the Florida Panther was listed as endangered under the Endangered Species Act. (4) The population has since recovered to almost triple its low point. (5) The panther is still endangered, but conservation efforts are working to preserve this majestic animal. (6)

This Article argues that, much like the Florida Panther, claims made by federal litigants are subject to evolutionary pressures. These pressures emerge within the litigation habitat, and one significant source of pressure is procedure.' As procedural rules governing federal civil litigation change, parties must overcome them. (8) In some cases, the parties will adapt to the rules. In others, they will migrate to other fora to capitalize on the new environment's rules. (9)For those litigants who cannot adapt or migrate, their claims will go extinct. (10)

Class action waivers in forced arbitration agreements show this evolution in action. (11) First, arguing that arbitration was a preferable form of resolving disputes and garnering federal courts' support to do so, corporate defendants migrated to arbitration. (12) Second, within arbitration, these same defendants sought an evolutionary advantage by including class action waivers in their agreements. (13) Third, plaintiffs initially fought both forced arbitration clauses and the class action waiver, but have since lost those battles, which resulted in some claims going extinct. (14) Finally, accepting their new environment but also believing in the advantage of collective action, some plaintiffs, like those in DoorDash and similar arbitrations, have banded together to file mass simultaneous individual arbitration claims. (15) This adaptation has enabled some parties to effectively aggregate their claims and gain back a portion of their lost advantage. (16)

But there are untold numbers of litigants who are unable to survive this and other similar procedural evolutions. Their claims are endangered and, without some form of intervention, will go extinct. For every class action waiver and DoorDash response, there are myriad claims in which the parties are unable to adapt and survive. (17) The parties that endure often have abundant resources. (18) In contrast, those with endangered claims--the parties who lack financial backing and social power--do not. (19)

This hostile litigation environment is not some natural consequence of our civil justice ecosystem. To the contrary, the Supreme Court, Congress, and the Civil Rules Committee play a key role in this evolution because they collectively define the parameters of procedural doctrine. (20) Yet these policymakers have unclear motivations when it comes to the procedures they introduce. (21) In some cases, these policymakers ostensibly fail to recognize, or perhaps reject as inconsequential, the fact that a procedural change will force parties to adapt or else see their claims become extinct. (22) In other cases, policymakers seem to condone, and even encourage, this evolution whether it be migration of claims or complete extinction. (23) The result, this Article argues, is a litigation system that is fragmented, unfair, and undemocratic. Like extremist takes on Darwinism, (24) the evolution taking place in our federal civil justice system is distressing. And like the endangered species on our planet, we should pay more attention to the plight of these endangered claims. (25)

This Article makes two contributions. First, it chronicles the evolution story of federal civil litigation by examining how, in response to changes in procedural rules and doctrines, parties and their claims adapt, migrate, or go extinct. What emerges from this story is that often only the strongest and most powerful parties survive, while those with fewer resources are less successful. These lost claims, like a lost species, should raise concerns. This leads to the second contribution, which concerns implications for policy-makers.

If policymakers understand that, despite the procedural rules or doctrines that are adopted, the most powerful litigants will almost always find a way to survive, that understanding should shift how policymakers approach their work. More specifically, this Article argues that policymakers should be guided by a commitment to meritorious claim conservation. The Endangered Species Act was adopted to protect our natural ecosystems by preventing animal extinction. (26) Similarly, policymakers should use an Endangered Claims Act framework to protect our civil justice system by conserving claims.

In action, policymakers must cease responding to power and instead respond to the claim. Meritorious claims, especially those that are the bulwark of our collective public interest--claims such as discrimination, product liability, and section 1983--should be subject to procedural rules that anticipate potential adaptations or migrations. By anticipating the effect a procedural rule change will have on meritorious claims, policymakers might re-think the changes they make. For instance, in the DoorDash example, adaptations by clever plaintiffs' lawyers might allow some claims to survive; (27) yet, how many similar claims--where parties did not have the necessary resources and lawyers--have gone extinct? In addition, for the DoorDash claims that will be arbitrated (or adjudicated), how much time and money did the parties and the system waste to get to that point? (28) If policymakers are required to focus on the claim itself, they will better anticipate how meritorious claims might fare whenever a procedural change is made.

Anticipating how procedural reform will impact claims will require more than mere focus, though. To implement this Endangered Claims Act approach, policymakers will also need better information. (29) Some of this information can be gleaned by simply putting more resources behind data gathering in our federal civil justice system. (30) The Federal Judicial Center and the Administrative Office of the Courts already do some modest data gathering, but for policymakers to have the information they need, those entities will require robust support. (31) In addition, to maximize our ability to monitor how claims are faring, policymakers should endeavor to adopt procedural rules and doctrines that guide most claims into a public court system. While imperfect, public courts are far more amenable to monitoring and data gathering than private dispute resolution fora like arbitration. (32) This is not to say that all claims must be adjudicated in public courts, but in procedural reform, policymakers should put a thumb on the scale in favor of more, not less, public adjudication.

Part I of the Article outlines the systemic and procedural pressures that work to endanger claims. Part II then examines the evolution of procedure in action. It chronicles some of the most prominent examples of litigants and their claims evolving, migrating, and even going extinct. Part III then problematizes this evolution by arguing that the current evolutionary environment favors traits like money, influence, and power, thereby endangering claims brought by those who are without such advantages. It argues that policymakers are preferencing the wrong evolutionary attributes. To optimize procedural reform, policymakers should instead use an Endangered Claims Act framework to consider how new procedures will impact claims.


    The civil justice system is a complex ecosystem. The parties and lawyers that operate within the system are similarly complex. This Part examines how procedure--while only one factor affecting the ecosystem--is critical to determining how parties and their lawyers behave within the civil justice system. This Part also briefly outlines other non-procedure pressures that impact the system and notes that even if changes were made to how procedural reforms were implemented, those non-procedure pressures might still persist.

    1. Procedural Inputs

      The Federal Rules of Civil Procedure and related procedural doctrines shape litigation in the federal courts. Prior to the adoption of the Federal Rules in 1938, a federal court followed the same procedures as the state courts where that federal court sat. (33) In this way, the parties and lawyers in each state had an advantage because they knew the rules of their game better than any outsiders. (34) The adoption of the 1938 rules changed the environment in federal courts. (35) State-centric lawyers and their federal-court clients lost their procedural advantage. (36) Consequently, lawyers who could become experts in the now-uniform federal rules gained an advantage over those parochial attorneys who knew only their home-court rules.

      In this way, the advent of the 1938 rules was the first point of adaptation in our modern procedural regime. Those lawyers and their clients who adapted to the uniform set of federal procedural rules had an advantage over those who did not. (37) As this Article will discuss, the evolution did not stop once the new federal rules were adopted. (38) Procedure remains a driving force behind how the civil justice system works. (39) Studies show that attorneys...

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