Crime Severity and Constitutional Line-Drawing

Some speech risks inciting or aiding serious crimes. Other speech risks causing only minor crimes. Some searches and seizures are aimed at catching kidnappers, others at catching bookies. 

Should constitutional doctrine draw lines that turn on crime severity? And if it should, how should these lines be drawn? Commentators and judges have often urged that the first question be answered yes. And yet the trouble with a yes answer is that it requires courts to answer the second question – which isn’t easy, given how bitterly people often disagree about the severity of various crimes (for instance, white-collar crimes, drug crimes, copyright infringement, or even burglary). 

Surprisingly, this matter has rarely been discussed broadly, cutting across various constitutional provisions, such as free speech, the Fourth Amendment, the right to jury trial, and the Eighth Amendment. This Essay tries do so. It identifies four possible approaches to judging crime severity in constitutional doctrine. It discusses the pluses and minuses of each approach. And it concludes that two simple answers—that such severity distinctions are always improper, and that they are unproblematic—are mistaken.

The Limited Domain of the Law

There are social norms, or otherwise valid sources of decision, that the law refuses to accept; as such, law really is a limited domain. Despite the claims of reputable philosophers that “law is process,” “law is politics,” or “law is everything,” there remain certain sources of knowledge and argument that remain out of bounds in the legal world. Further, many of the great jurisprudential debates of the last century have really been debates over the question of what is and is not in bounds.

Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment

The nuisance-value settlement problem arises whenever a litigant can profitably initiate a meritless claim or defense and offer to settle it for less than it would cost the opposing litigant to have a court dismiss the claim or defense on a standard motion for merits review like summary judgment. The opposing litigant confronted with such a nuisance-value claim or defense rationally would agree to settle for any amount up to the cost of litigating to have it dismissed. These settlement payoffs skew litigation outcomes away from socially appropriate levels, undermining the deterrence and compensation objectives of civil liability. Yet current procedural rules are inadequate to foreclose nuisance-value strategies. 

Class action is commonly thought to exacerbate the nuisance-value settlement problem to the systematic disadvantage of defendants. This concern has contributed to the growing support among courts and commentators for subjecting class actions to precertification merits review (PCMR), generally understood as conditioning class certification on prior screening of class claims for some threshold level of merit. 

This Article proposes mandatory summary judgment (MSJ) as a solution to the problem of nuisance-value settlement in class actions and in civil litigation generally. Essentially, MSJ denies judicial enforceability to any settlement agreement entered into before the nuisance-value claim or defense has been submitted for merits review on a motion for summary judgment or other standard dispositive motion. Assessing the potential costs of the MSJ solution, we conclude that neither the opportunity for evading MSJ strictures nor the possibility of adding expenses to the settlement of non-nuisance-value litigation outweighs the benefits of MSJ. MSJ will be most cost-effective in the class action context, given the already existing general requirements of judicial review and approval of class action settlements, but MSJ should also prove beneficial in preempting nuisance-value strategies outside of class actions in the standard separate action context.

With the MSJ solution set out, the Article moves finally to offering a more exhaustive analysis of the theoretical soundness and practical efficacy of MSJ in the class action context, where its marginal benefits are arguable the greatest. First, the Article challenges the commonly held belief that class action certification exacerbates the nuisance-value settlement problem, attempting to displace the conventional understanding of complex litigation with a new conceptual framework based on the recharacterization of the class action as part of a continuum of litigation processes rather than an isolated litigation mechanism. Second, the Article provides a comparative analysis of MSJ and PCMR as solutions to the nuisance-value problems that do exist in the class action context, concluding that MSJ presents the superior and more cost-effective option.