On August 12, 2011, the Eleventh Circuit Court of Appeals ruled that Congress exceeded its authority by forcing all Americans to purchase health insurance through the health care law’s “individual mandate.” A 2-1 majority held that enacting the individual mandate was beyond Congress’s power under the Commerce Clause. However, the court held that while the individual mandate was unconstitutional, it was severable from the law as a whole, and the rest of the law could stand... Read more!

There is an ongoing robust debate about the structure of litigation in general, and in particular, about access to the courts. For a considerable period of time, the mantra that the courts should be readily available to all to present claims that their rights have been violated has dominated both academic discourse and perhaps significantly influenced the structure of litigation. The conventional view that the courts should be freely open to all was dealt a blow by the Iqbal and Twombly decisions, which imposed greater gatekeeping responsibilities on the federal district courts. Predictably these decisions provoked a storm of protest, in large measure because they may indeed make it more difficult for many petitioners to have their petitions considered on the merits.⁴ However, whether that result is a social harm or a positive good depends on matters in addition to simply winnowing the field of potential disputants, a point neglected by much of contemporary scholarship in civil procedure. That scholarship has had a laser-like focus on facilitating the bringing of claims, and in doing so makes two serious errors. It neglects that litigation is one small part of a larger social optimization problem, and has a peculiar conception of errors and costs and how they should be allocated. In this brief paper, I provide the analytical background to these assertions... [Read more!]

Viewed from the standpoint of strategic incentives, Rule 4(b) is the foundation of the Federal Rules of Civil Procedure: the state compels someone to appear in court and expend resources to move or answer without regard to the merit of the claims brought. Rule 4(b) is probably unconstitutional, but it is certainly bad policy and creates a distorted incentive structure. Twombly is a well-intentioned but misdirected attempt to fix this fundamental problem in the incentives created by the Federal Rules of Civil Procedure, but it focuses in the wrong place. The problem is created pre-service, and that is where it should be fixed... [Read more!]

I show my Civil Procedure students a video on electronically stored information (“ESI”) created by Jason Baron and Ralph Losey. The video, set to the type of pulsating electronic music normally heard prior to kickoff, sets forth a series of factoids about ESI. There will soon be more bytes of ESI than stars in the universe, it would take six million years to read each web page in the known universe, and we are awash in billions and trillions of e-mails, tweets, text messages and Google searches. The video refers to studies showing that most of this information is never produced—and often not even thought of—in the discovery process. It points out that the most common forms of retrieval, such as Boolean key word searches, find a relatively small percentage of “relevant” documents. For Baron and Losey, the “near future” is that litigants cannot “afford the whole truth,” but they suggest (with, I hope and suspect, tongues in cheek) that the “far future” is discovery conducted by artificial intelligence agents. The answer to the challenges of E-discovery, in other words, is the creation of E-lawyers... [Read more!]