Managerial judging and substantive law.

• Author: Wolff, Tobias Barrington

INTRODUCTION

Since Professor Judith Resnik coined the term "managerial judging" thirty years ago to describe the expanded role of federal district judges under the Federal Rules of Civil Procedure, two distinct lines of scholarly analysis have emerged to discuss judicial management and innovation in complex civil cases. The first, which predates Resnik and is associated most closely with a seminal article by Professor Abe Chayes, focuses attention on the substantive content of constitutional and statutory norms and the role of the judge following adjudication of the merits in using the remedial powers of the court to carry those norms into effect. The second, which has come to occupy a central role in more recent debates over the judicial function, concerns the earlier phases of the litigation process in complex cases, when strong direction from the judge and decisions about scheduling, discovery, joinder, and communication with attorneys can channel settlement negotiations and shape outcomes. In both discussions, the figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics--a managerial judge--has displaced the passive umpire as the dominant paradigm in the federal district courts. (1)

This bifurcation into two lines of analysis--one concerned with judicially supervised post-adjudication remedies in public law disputes and hence implicitly "substantive," the other focused on pretrial proceedings in complex litigation and hence implicitly "procedural"--has obscured the dynamic nature of the relationship that frequently exists between the mechanisms of litigation and the underlying substantive law. It is true that the business of judging implicates distinctive institutional and procedural norms that are worthy of study in their own right. But it is also true that the institutional and procedural norms of the judiciary interface with controlling liability and regulatory policies in defining the parameters of litigation. When a federal judge engages in heavy-handed case management or makes decisions about the proper bounds of a complex proceeding, it is not just the norms of judging but also the applicable liability policies that must guide her in that endeavor. Erie Railroad v. Tompkins (2) and the Rules Enabling Act, (3) properly understood, both require such an approach. Professor Robert Cover made this observation almost forty years ago in a tribute to James Moore, one of the fathers of the Federal Rules, in terms that the Academy has largely let slip from its collective memory.

We have become so transfixed by the achievement of James Wm. Moore and his colleagues in creating, nurturing, expounding and annotating a great trans-substantive code of procedure that we often miss the persistent and inevitable tension between procedure generalized across substantive lines and procedure applied to implement a particular substantive end. There are, indeed, trans-substantive values which may be expressed, and to some extent served, by a code of procedure. But there are also demands of particular substantive objectives which cannot be served except through the purposeful shaping, indeed, the manipulation, of process to a case or to an area of law. (4) In some cases, controlling liability policies may provide a basis for arguing that restraint is required in shaping a complex proceeding. Such was the holding of the Supreme Court in the portion of its Wal-Mart Stores, Inc. v. Dukes (5) decision that found the class certified in that case to violate the requirement of commonality under Rule 23. Although portions of the Court's analysis may shape the construction of Rule 23(a) to some extent in other types of dispute, the commonality holding in Dukes is at base a statement of Title VII policy. In contrast, the portion of the Court's opinion that rejected the use of Rule 23(b)(2) to certify a class of workers seeking backpay for sex discrimination is primarily about the scope and operation of Rule 23(b)(2) itself--a trans-substantive procedural ruling. But even that portion of the opinion implicates questions of Title VII policy in ways that commentary on the opinion has not yet appreciated. The Court's fleeting answers to those Title VII questions contributed to its conclusion that class certification was improper. A more careful focus on the relationship between Title VII policy and the operation of Rule 23 serves to clarify the Dukes decision and highlights possible grounds for critiquing and distinguishing the Court's ruling.

In other cases, the substantive law may affirmatively support judicial management and procedural innovation. The claims of first responders injured by the toxic conditions at the site of the September 11,2001 World Trade Center disaster offer a prominent example. In a series of targeted enactments, Congress created a comprehensive scheme for the resolution of those first-responder claims, specifying a liability rule, preempting alternative remedies, imposing a collective damages cap, and enacting an exclusive grant of jurisdiction to the federal court in the Southern District of New York that resulted in the consolidation of more than 10,000 individual cases before Judge Alvin Hellerstein. In confronting the task of adjudicating these claims, Judge Hellerstein concluded that the proceeding before him required that he enforce a standard of fairness and adequacy in assessing the relief available to claimants, rather than simply treating the action before him as a standard-issue claims-processing mechanism for unconnected individuals, and he aggressively managed the litigation in order to supervise the proposed compensation. (6)

As the Judge has been frank to admit, some of his actions were unprecedented. Most notable among these was his rejection of an initial aggregate settlement in a non-class case, requiring the defendants to produce more funds and the plaintiffs' attorneys to give up some of their fees before he would approve the agreement, even though all the claimants had signed individual retainer agreements with their attorneys] The proceedings, which are on appeal to the Second Circuit at the time of this writing, have been the subject of sharp criticism. That criticism has been misplaced. Judge Hellerstein acted within the proper scope of his authority in employing such forceful tactics with the litigants before him. His authority was not that of a generic "managerial judge." It was the authority to use case management and procedural innovation as tools for carrying into effect the distinctive liability policies enacted by Congress in the comprehensive statutory scheme that defined and limited the relief available to first responders.

The interplay between procedural mechanisms and underlying liability policies is evident in more prosaic cases as well. Judges are regularly called upon to exercise their discretion to shape the boundaries of litigation within the open-textured provisions of the Federal Rules. Liability policy can and should guide the judge's hand in that endeavor. An emerging issue in the federal district courts concerning ex parte discovery and the operation of joinder under Rule 20 in online copyright infringement suits illustrates this common dynamic.

In this Article, I examine the interface between substantive law and managerial judging. My aim is not to criticize the dominant strain of current scholarship, with its focus on endogenous values in the practice of judging. That work has posed important questions that have properly captured the attention of Academy, Bar and Bench. It is rather to ground that ongoing discussion in a richer account of the role that substantive legal policy can and should play in defining the role of the judge, constraining judicial options in some cases, and legitimizing judicial initiative in others.

1. SUBSTANCE AND PROCEDURE IN THE BUSINESS OF JUDGING

   Commentators on the importance of procedure in substantive law reform frequently advert to a noted passage from Karl Llewellyn's The Bramble Bush: "You must read each substantive course, so to speak, through the spectacles of the procedure. For what substantive law says should be means nothing except in terms of what procedure says that you can make real." (8) Less frequently remarked upon is the procedural context in which Llewellyn was writing. The essays that make up The Bramble Bush were written between 1929 and 1930, (9) prior to the enactment of the Rules Enabling Act of 1934 and during a pocket of time when efforts at federal procedural reform appeared moribund. (10) The Conformity Act still governed, requiring a federal court presiding over an action at law to conform its procedures in most respects to those employed by the courts of the state where it was located. Those procedures, in turn, ranged from the traditional forms of action still utilized in some states, where the boundaries of the lawsuit as defined through joinder and pleadings derived from the inherent nature of the rights being prosecuted (and also were hampered by vestigial and inefficient anomalies), to variations on the Field Code, which aimed to codify procedure into an internally coherent system but produced unsatisfying and uneven results. Indeed, New York, where the Field Code originated and where Llewellyn taught, was notorious as one of the most troubled among the Code states, with its early reform efforts having metastasized to become "'an overgrown mass of detail."' (11) The unpredictable and variable nature of civil practice in the United States during this period was acute. As a realist commentary upon the role of procedure, Llewellyn's remark was concerned more with the sheer ability of claimants to survive the litigation process than with the relationship between regulatory policy and judicial process. (12)

   The procedural reform movement that produced the...