Overcoming Procedural Boundaries

This article questions one of the most deeply-rooted taxonomies of modern legal thought, that dividing civil and criminal procedure. It highlights a fundamental shortcoming of our legal system that stems from its failure to provide adequate procedural protections to individuals who are sued by the government or large organizational entities and face severe civil sanctions, while ensuring sweeping procedural safeguards for people and institutions facing only trivial criminal sanctions. Many justifications have been offered for the civil-criminal rift in procedure. Some argue that the distinction rests on utilitarian grounds, while others point to egalitarian rationales. Still others invoke the expressive role played by procedure, with others focusing on the unique role of the state in a liberal democracy. The article challenges each of these rationales, showing that they are obsolete, if not completely unfounded, and proposes a simple alternative: cutting the Gordian knot binding substance to procedure and replacing the current bifurcated civil-criminal procedural regime with a model running along two axes: the balance of power between the litigating parties and the severity of the potential sanction or remedy. The balance of power axis refers to the model’s two sets of procedural rules, aimed at remedying asymmetry problems inherent to litigation. One set of rules would govern symmetrical litigation, that is, where both parties are either institutional entities (comprised of both governmental bodies and large organizational entities such as big corporations and financial institutions) or else individuals (including small businesses); a second set of rules would govern asymmetric litigation, involving an individual on one side and an institutional entity on the other. The model’s second axis focuses on the degree of harm that would be generated by an adverse decision for the litigating parties, irrespective of whether the substantive legal regime governing the dispute is civil or criminal. Applying these two parameters, our proposed procedural regime maps out the entire procedural landscape. The resulting redistribution of procedural protections diverges significantly from the current regime. The article shows that the proposed model, as a regime based on the true goals of procedure, in fact, better realizes the ends underlying the rationales used to justify the current procedural regime. It concludes with some remarks about the feasibility of such a reform.

Information and the Market for Union Representation

In its oversight of union representation elections, the National Labor Relations Board seeks to create “laboratory conditions” to determine “the uninhibited desires” of employees. Despite its comprehensive regulation of union and employer campaign conduct, the Board fails to insure that employees get basic information relating to their decision. This Article proposes a new paradigm for the representation decision: that of a purchase of representation services. This “purchase of services” model demonstrates that the market for union representation lacks the standard features required under economic theory to drive information into the marketplace. The resulting information deficiencies may render employees poorly equipped to make their representation decision.

Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation

For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges’ votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge’s votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge’s ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the same political party; and (c) a judge’s ideological tendency, in such areas, will be dampened if the panel has no other judge appointed by an appointing president of the same political party. All three hypotheses are confirmed in many areas, including affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination, and review of environmental regulations. An important implication is that panel composition has a strong effect on likely outcomes, thus creating extremely serious problems for the rule of law. Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes. Notably, all three hypotheses are rejected in the areas of federalism, criminal appeals, and takings of private property, because Republican and Democratic appointees vote essentially alike. In the areas of abortion and capital punishment, the first hypothesis is confirmed, but the second and third are rejected, because judges vote their convictions, and are not affected by the composition of the panel. Disaggregating the data by circuit allows courts of appeals to be ranked along an ideological spectrum; it also shows striking differences between Republican appointees and Democratic appointees on different circuits. Normative implications are briefly explored.