Law's irony.

AuthorGorsuch, Neil M.
PositionBarbara K. Olson Memorial Lecture, 2013 Federalist Society National Lawyers Convention

Thank you for the kind introduction. It is an honor to be with you and a pleasure to be part of a lecture series dedicated to the memory of Barbara Olson and to some of the causes she held dear--the rule of law, limited government, and human liberty.

Let me begin by asking if you've ever suffered through a case that sounds like this one:

[I]n [the] course of time, [this suit has] become so complicated, that no man alive knows what it means.... [A]long procession of [judges] has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality ... [but still it] drags its dreary length before the Court, perennially hopeless. (1) How familiar does that sound? Could it be a line lifted from a speaker at an electronic discovery conference? From a brief in your last case? Or maybe from a recent judicial performance complaint?

Of course, the line comes from Dickens, Bleak House, published 1853. It still resonates today, though, because the law's promise of deliberation and due process sometimes--ironically --invites the injustices of delay and irresolution. Like any human enterprise, the law's crooked timber occasionally produces the opposite of its intended effect. We turn to the law earnestly to promote a worthy idea and sometimes wind up with a host of unwelcome side effects and find ourselves ultimately doing more harm than good. In fact, the whole business is something of an irony: we depend on the rule of law to guarantee freedom but we have to give up freedom to live under the law's rules. (2)

In a roundabout way, that leads me to the topic I'd like to discuss with you tonight: law's irony. Dickens had a keen eye for it. But even he was only reworking long familiar themes. Hamlet rued "the law's delay." (3) Goethe left the practice of law in disgust after witnessing thousands of aging cases waiting vainly for resolution in the courts of his time. (4) Demosthenes plied similar complaints 2000 years ago. (5) Truth is, I fully expect lawyers and judges to carry on similar conversations about the law's ironies 2000 years from now.

But just because unwelcome ironies may be as endemic to law as they are to life, Dickens would remind us that's hardly reason to let them go unremarked and unaddressed. So it is I would like to begin by discussing a few of the law's ironies that I imagine he would consider worthy of attention in our time.

Consider first today's version of the Bleak House irony. Yes, I am referring to civil discovery.

The adoption of the "modern" rules of civil procedure in 1938 marked the start of a self-proclaimed "experiment" with expansive pre-trial discovery--something previously unknown to the federal courts. (6) More than seventy years later, we still call them the "new" and the "modern" rules of civil procedure.

Now, that's a pretty odd thing, when you think about it. Maybe the only thing that really sounds new or modern after seventy years is Keith Richards of the Rolling Stones. Some might say he looks like he's done some experimenting too.

In any event, our 1938 forefathers expressly rested their "modern" discovery "experiment" on the assumption that with ready access to an opponent's information parties to civil disputes would achieve fairer and cheaper merits-based resolutions. (7)

Now, how is that working out for you?

Does modern discovery practice really lead to fairer and more efficient resolutions based on the merits? I don't doubt it does in many cases. Probably even most. But should we be concerned when eighty percent of the American College of Trial Lawyers say that discovery costs and delays keep injured parties from bringing valid claims to court? (8) Or concerned when seventy percent also say attorneys use discovery costs as a threat to force settlements that aren't based on the merits? (9) Have we maybe gone so far down the road of civil discovery that--ironically enough--we've begun undermining the purposes that animated our journey in the first place?

What we have today isn't your father's discovery. Producing discovery anymore doesn't mean rolling a stack of bankers' boxes across the street. We live in an age when every bit and byte of information is stored seemingly forever and is always retrievable--if sometimes only at a steep price. Today, the world sends fifty trillion emails a year. (10) An average employee sends or receives over one hundred every day. (11) That doesn't begin to account for the billions of instant messages shooting around the globe. (12) This isn't a world the writers of the discovery rules could have imagined in 1938--no matter how "modern" they were. (13)

No surprise, then, that many people now simply opt out of the civil justice system. Private alternative dispute resolution (ADR) abounds. Even the federal government has begun avoiding its own courts. Recently, for example, it opted to employ ADR to handle claims arising from the BP oil spill. (14) These may be understandable developments given the costs and delays inherent in modern civil practice. But they raise questions, too, about the transparency and independence of decisionmaking, the lack of development of precedent, and the future role of courts in our civic life. For a society aspiring to live under the rule of law, does this represent an advance or perhaps something else?

We might even ask what part the rise of discovery has played in the demise of the trial. (15) Surely other factors are at play here, given the disappearance of criminal trials as well. But we've now trained generations of attorneys as discovery artists rather than trial lawyers. They are skilled in the game of imposing and evading costs and delays, they are poets of the nasty gram, able to write interrogatories in iambic pentameter. Yet terrified of trial.

The founders thought trials were a bulwark of the rule of law. As Hamilton saw it, the only room for debate was over whether jury trials were (in his words) "a valuable safeguard to liberty" or "the very palladium of free government." (16) But is that still common ground today? No doubt, our modern discovery experiment is well-intentioned. Yet one of its effects has been to contribute to the death of an institution once thought essential to the rule of law.

What about our criminal justice system, you might ask? It surely bears its share of ironies too. Consider just this one.

Without question, the discipline of writing the law down, codifying it, advances the rule of law's interest in fair notice. But today we have about 5000 federal criminal statutes on the books, (17) most added in the last few decades. (18) And the spigot keeps pouring, with hundreds of new statutory crimes inked every few years. (19) Neither does that begin to count the thousands of additional regulatory crimes buried in the federal register. There are so many crimes cowled in the numbing fine print of those pages that scholars actually debate their number. (20)

When he led the Senate Judiciary Committee, Joe Biden worried that we have assumed a tendency to "federalize everything that walks, talks, and moves." (21) Maybe we should say hoots, too, because it's now a federal crime to misuse the likeness of Woodsy the Owl or his immortal words, "Give a Hoot, Don't Pollute." (22) Businessmen...

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