The changing shape of federal civil pretrial practice: the disparate impact on civil rights and employment discrimination cases.

• Author: Schneider, Elizabeth M.

INTRODUCTION I. THE CHANGING NATURE OF CIVIL PRETRIAL PRACTICE IN THE FEDERAL COURTS A. Pleading B. Summary Judgment, Iqbal, and Scott C. Daubert II. IMPLICATIONS FOR FEDERAL CIVIL LITIGATION III. WHY IS THIS HAPPENING? IV. CORRECTING THE IMPACT INTRODUCTION

Pretrial practice in federal civil litigation has dramatically changed over the last thirty years. Pretrial practice, pleading, discovery, Daubert motions, (1) summary judgment, and settlement have become the focus of federal civil litigation while trials have vanished. Judges have become managers and gatekeepers, while juries have disappeared. Public adjudication in courts has been reduced. Judicial gatekeeping is happening at an earlier stage than ever before. The recent Supreme Court decisions in Bell Atlantic Corp. v. Twombly (2) and Ashcroft v. Iqbal, (3) which have dramatically heightened pleading standards, are already turning 12(b)(6) (4) motions to dismiss into early summary judgments. (5) Iqbal has been described as the "sleeper case" of the 2008 Term because of its unexpected impact on every federal civil matter filed in the federal courts. (6) One commentator noted that "Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts." (7) Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges at the Second Circuit Judicial Conference that the ruling was both important and dangerous. (8) "In my view," she said, "the [C]ourt's majority messed up the federal rules" governing civil litigation. (9)

Although some have argued that concerns about the cost of litigation, especially discovery, are shaping these developments--the majority suggested as much in both Twombly (10) and Iqbal (11)--this is not the whole story. Many factors beyond litigation cost are influencing these decisions. Judicial decisions at every level, including the Supreme Court, have expressed a widespread and generalized "hostility to litigation.'' (12) The Class Action Fairness Act of 2005 (CAFA), (13) for example, was enacted in order to move tort litigation from state to federal courts, where defendants believe that they will get a more receptive hearing. As the ideological predilections of federal judges have shifted, many federal judges have expressed the view that employment discrimination and civil rights cases are often weak and without merit. (14)

Whatever the reasons, the greatest impact of this change in the landscape of federal pretrial practice is the dismissal of civil rights and employment discrimination cases from federal courts in disproportionate numbers. Fewer civil rights and employment cases are being filed in the federal courts. These issues have become the subject of national attention. (15) In this Article, I examine the disparate impact that the changing nature of pretrial practice has on civil fights and employment discrimination cases. I argue that this serious effect raises important questions about purportedly "neutral" rules in the federal courts and should make us look closely at the impact of procedural revision on civil rights and employment cases. In addition, it raises larger questions about whether the swift termination of these cases in federal court is disposing of meritorious cases and forces us to consider the implications of these cases going to state court.

There is a substantial literature about the heavy burdens that employment discrimination plaintiffs bear in federal court. (16) But new developments in federal pretrial practice that reflect the strengthening of 'Judicial gatekeeping"--such as Twombly, Iqbal, summary judgment, and Daubert--appear to be having a considerable impact on employment discrimination and civil rights cases. Empirical studies of the effect of Twombly and Iqbal suggest that these decisions have resulted in the disproportionate dismissal of civil rights cases. (17) Recent data on summary judgment in three district courts support this disparate impact. (18) And the most recent Federal Judicial Center study of summary judgment, prepared in conjunction with the Advisory Committee on Civil Rules's proposed amendment providing for a summary judgment "point-counterpoint" format for movant and respondent, suggests that the "prominent role" of summary judgment in civil rights and employment cases is "striking." (19)

I have recently explored some of these questions in the context of summary judgment. (20) But it is important to look at these issues more broadly in light of the interrelated dimensions of federal pretrial practice. There is a widespread view that our federal civil litigation system continues to be "transsubstantive," (21) with rules that apply the same way to all types of actions. Each procedural dimension--pleading, discovery, Daubert motions, or summary judgment--is viewed as neutral, discrete, and operating independently of the others. Yet recent experience with the Civil Rules Committee's proposed amendment to Rule 56, which would have mandated "point-counterpoint" summary judgment presentation as a presumptively uniform procedure for most cases (ultimately rejected by the Committee) suggests the need for close scrutiny of the operation of federal pretrial practice on civil rights and employment cases on summary judgment. (22) Many commentators raised questions as to whether this purportedly purely "procedural" reform of the Rule would lead to increased grants of summary judgment and dismissals in civil rights and employment cases. (23) An amended Rule 56 became effective December 1, 2009. (24)

In this Article, I analyze three discrete aspects of the shift in pretrial practice--pleading, summary judgment, and Daubert--in depth and then assess their cumulative impact on civil rights and employment cases. My concern with this issue stems from my experience as a civil rights litigator at a time when federal courts were viewed as the bulwark of civil rights protection. I am sensitive to the historical dialectic between federal/state parity and civil rights preferences that affect whether federal or state courts are the best venues for the resolution of civil rights matters. (25) Now, however, cases involving matters of public importance are relegated to state courts, where judges are subject to greater political pressure. Lawyers and judges now perceive that state courts have become the forum for plaintiffs, while federal courts are the forum for defendants. (26)

Part I of this Article begins with an overview of changes in federal pretrial practice and a review of recent data on civil rights and employment cases in the federal courts. It then turns to the procedural aspects of pleading and the history of special pleading burdens in civil rights cases, which were rejected by the Supreme Court, and the impact of Twombly and Iqbal This part then proceeds to discuss the procedural aspects of summary judgment, summary judgment decisionmaking in general and in civil rights and employment cases in particular, the impact of Twombly and Iqbal on summary judgment, and the problematic approach to summary judgment reflected in Scott v. Harris. (27) Part I concludes with a brief look at the procedural aspects of Daubert motions, the way they are tied to summary judgment, and their effect on civil rights and employment discrimination cases. Part II examines the broader implications of these developments for federal pretrial practice, and focuses on the need for a close analysis of the impact of "neutral" Rules, such as the proposed but rejected "point-counterpoint" amendment to Rule 56, on employment discrimination and civil rights litigation. Part III explores why these changes are occurring and considers what it would take to reverse this trend.

1. THE CHANGING NATURE OF PRETRIAL PRACTICE IN THE FEDERAL COURTS

   From our current vantage point, there have been tremendous changes in federal pretrial practice over the last thirty years. These changes include the development of heightened pleading standards, the increased use of summary judgment, the development of Daubert hearings, more settlements, the greater use of managerial judging, and the disappearance of civil trials. Although each of these developments involve different sources of law and may be occurring for arguably different reasons, they are all interrelated. Some of these changes--such as increased settlement and the disappearance of civil trials--may be cumulative, the results of interaction among other developments.

   This notion of interrelationship among parts is fundamental to the operation of procedure under the Federal Rules. The idea of simple notice pleading was integrally related to (and indeed interdependent with) provisions for extensive discovery and summary judgment. The majorities' rationales for heightening the burden of pleading in Twombly and Iqbal were to reduce the expense and duration of discovery. Change in one aspect of the rules and the litigation process inevitably impacts every other aspect of the process, although we do not always know how. Yet we need to look at these changes in a systemic way. Stephen Yeazell has made this point:

   Although we consciously chose the individual legal changes, we have not entirely comprehended their combined effect. As a consequence, we sometimes debate particular features--for example, styles of judging, the virtues and vices of discovery, abuses of the legal system, alternatives to litigation, and various docket-speeding local experiments--without acknowledging their links to the system as a whole. We need a better sense of these connections and a more comprehensive sense of how process functions as a system. (28) Historically, federal courts were the place for civil rights relief. Our vision of the federal courts over the last half century has been shaped by the civil rights movement. Civil rights and employment discrimination cases often raise issues of social importance and require a public forum...