Posted 12/10/13 by Common Good
The Federal Rules of Civil Procedure—the set of rules defining the process for civil lawsuits, now seventy-five years old—are outdated, inefficient, and expensive. You might not have guessed that, however, as present and former leaders of the rule-making process gathered recently for a symposium at the University of Pennsylvania to commemorate the 75th anniversary. If the symposium is any indication, urgently needed substantial reform of the federal rules is not in the cards.
The symposium’s prevailing narrative was that the Federal Rules have been a great success in adapting to new litigation challenges: lawmaking cases such as Brown v. Board of Education, private enforcement of public laws (so-called “private attorneys general”), mass tort litigation, and massive business-versus-business litigation (e.g., Apple v. Samsung). According to the narrative, the Rules were doing a pretty good job of adjudicating these claims until the late 1970s, when backlash arose against the huge costs of such litigation. Today, according to the narrative, the Supreme Court has reacted by limiting access to the federal courts (e.g., Rule 8 pleading, Rule 11 sanctions, Rule 23 class actions, Rule 26 discovery and Rule 56 summary judgment). The Court, so the narrative goes, has tilted in favor of business. “Plaintiphobia” rules.
Only a few voices spoke contrary to the prevailing narrative and suggested that the Federal Rules may have problems. Professor Harold Koh, formerly Dean of Yale Law School and Legal Advisor to the Department of State, asked provocatively whether the Rules have achieved their stated goal of “The Just, Speedy and Inexpensive Determination of Every Action”. He answered, “at best partially.” Professor Arthur Miller of NYU, one of the harshest critics of Supreme Court decisions limiting court access, gave them a less than stellar grade: “at best, B minus, and on an inflated grade curve, below the median.” He decried reforms of recent years as mostly “tinkering.”
There was one common theme of dissatisfaction: cases are no longer decided. Trials, and with them juries, have vanished. Only one percent of cases get trials. Judges are not judges of disputes, but “terminators” of case files—a point helpfully illustrated by a slide image of Arnold Schwarzenegger.
The flawed, prevailing narrative nevertheless remained: the Federal Rules must be preserved as they are (largely as they were in the 1970s) for these new forms of litigation, even if that means accepting unjust, expensive and slow resolution of disputes. In truth, new forms of litigation require new rules.
Several presenters came close to saying that the “transsubstantive” model, i.e., the same rules for all cases, is no longer valid. They suggested that the Federal Rules should have different litigation tracks for different sorts of claims. Under this approach, the process of discovery and judicial supervision might vary among different types of cases. Just maybe, such simpler procedures would bring needed common sense to federal dispute resolution.Comment ›
Posted 12/9/13 by Common Good
The benefits of greater public and private investment in infrastructure are enormous—job creation, enhanced economic competitiveness, and a greener footprint. But first, America has to fix its paralytic legal infrastructure. Common Good and Regional Plan Association hosted a forum in Washington, D.C. on November 21 to explore obstacles to effective infrastructure investment and solutions to the regulatory and beaurocratic mess. Below, see video of all the presentations from the Infrastructure Now forum. A full schedule of the event can be viewed here, and you can read Common Good's press release on the forum here.
Senator Angus King (I-ME) introduced the forum, observing that because of our convoluted approval process, many of our most crucial infrastructure projects could not be built today:
Diana Mendes of the engineering consulting firm AECOM continued with comments on the history of environmental review, the National Environmental Policy Act, and what we can do today to achieve NEPA's goals without crippling our ability to undertake infrastructure projects (Mendes also used a slide presentation which you can download here):
Nick Malyshev of the OECD compared international approval processes that hold lessons for the U.S. approach (Malyshev's slide presentation can be downloaded here):
A panel of experts on environmental review shared a variety of perspectives on the challenges and opportunities for reform of the environmental review process:
Finally, a second panel investigated the issue of jurisdictional overlap in infrastructure permitting:
Posted 12/2/13 by Common Good
Senator King's opening remarks from the Common Good/RPA Infrastructure Now forum:
Posted 11/25/13 by Common Good
The Wall Street Journal on Saturday published an essay by Common Good Chair Philip K. Howard on the frustratingly inefficient process for approving infrastructure projects. This inefficiency takes away jobs and commerce:
Building new infrastructure would enhance U.S. global competitiveness, improve our environmental footprint and, according to McKinsey studies, generate almost two million jobs. But it is impossible to modernize America's physical infrastructure until we modernize our legal infrastructure. Regulatory review is supposed to serve a free society, not paralyze it.
The problem? A hopelessly bureaucratized environmental review process delays essential projects for years, in some cases a decade. Howard writes:
The environmental review statement for dredging the Savannah River took 14 years to complete. Even projects with little or no environmental impact can take years. Raising the roadway of the Bayonne Bridge at the mouth of the Port of Newark, for example, requires no new foundations or right of way, and would not require approvals at all except that it spans navigable water. Raising the roadway would allow a new generation of efficient large ships into the port. But the project is now approaching its fifth year of legal process, bogged down in environmental litigation.
Building and maintaining a modern infrastructure--and the jobs that come with it--requires serious reform of the environmental review process. Howard suggests that we look to other countries' experience:
Canada requires full environmental review, with state and local input, but it has recently put a maximum of two years on major projects. Germany allocates decision-making authority to a particular state or federal agency: Getting approval for a large electrical platform in the North Sea, built this year, took 20 months; approval for the City Tunnel in Leipzig, scheduled to open next year, took 18 months. Neither country waits for years for a final decision to emerge out of endless red tape.
Posted 11/25/13 by Common Good
The benefits of greater public and private investment in infrastructure are enormous—job creation, enhanced economic competitiveness, and a greener footprint. But first, America has to fix its paralytic legal infrastructure. Common Good and Regional Plan Association hosted a forum in Washington, D.C. on November 21 to explore obstacles to effective infrastructure investment and solutions to the regulatory and beaurocratic mess.
The forum featured participants from government, policy groups, and the private sector, including:
- Sen. Angus King (I-ME)
- Steve W. Black, Bingham Consulting
- Matthew Carstens, ITC Holdings Corp.
- Jenny D’Anna, ITC Holdings Corp.
- Tyler Duvall, McKinsey & Company
- E. Donald Elliott, Yale Law School
- George Frampton, Jr., Covington & Burling
- Travers Garvin, Kohlberg Kravis Roberts & Co.
- Philip K. Howard, Common Good
- Nick A. Malyshev, OECD
- Diana Mendes, AECOM
- Lynn Scarlett, The Nature Conservancy
- Robert D. Yaro, Regional Plan Association
You can view the full webcast of the forum here, and we'll be posting edited video clips in the coming days. In addition, we've issued a press release with results of a national survey on environmental reviews. Below, some photos from the event:
Opening remarks from Philip K. Howard
Comments from Sen. Angus King (I-ME)
Diana Mendes of AECOM: "This is how we do things with NEPA":
Posted 11/13/13 by Common Good
We're thrilled to see more and more enthusiasm behind the idea of specialized health courts, where patients and doctors can get more reliable medical justice without the fear, uncertainty, and frequent mistakes of the current malpractice system. This report from the Center for Health Affairs notes that, "By serving as a centralized, standardized repository for medical liability claims information, health courts would allow the root causes of medical errors to be studied." The report also observes the widespread bipartisan support for health courts, which have been endorsed by Barack Obama, Mitt Romney, and a plethora of bipartisan deficit reduction committees.
Common Good Chair Philip K. Howard recently joined the medical news organization Medscape for an interview on the benefits of health courts. Howard notes that the current system "is rife with error in both directions; sometimes it favors the doctors who did something wrong and often it favors an injured patient even when the doctor did nothing wrong, particularly in tragic cases." The prevalence of legal fear means that "physicians and nurses are...trained not to speak up when they see something in their peripheral vision that they are not sure is right, because they might be taking legal responsibility."Comment ›
Posted 10/24/13 by Common Good
On Monday, October 21, the Law and Economics Center of George Mason University held a Congressional Civil Justice Caucus on the pending Lawsuit Abuse Reduction Act of 2013 that aims to “put teeth back into Rule 11” sanctions to reduce frivolous litigation. It would reverse the 1993 amendments to Rule 11 that let litigants escape sanctions for frivolous claims by withdrawing the claims within twenty-one days after a motion for sanctions is made.
The bill has been met with some skepticism. General Electric litigation head Bradford Berenson, for one, is not an enthusiastic supporter: "There are other tools that are more powerful, more helpful, and get more at the real problems with our system."
Coincidentally, only days earlier, I had addressed a group of twenty judges from the Nanjing China People’s Intermediate Court at the University of Baltimore for a two-week training session. The judges were particularly interested in how the United States approaches abusive litigation–evidently it is a serious problem in China. I told the judges that other countries do not need to sanction abusive litigation because they remove incentives to bring abusive claims. In effect, I agreed with Mr. Berenson that smart design and not sanctions are the answer to reducing abusive litigation.
How do other countries ensure good faith litigation? Germany offers an instructive example. Here are some of the ways it mostly eliminates incentives for meritless litigation:
- Filing fees are proportionate to amounts claimed. The U.S. Federal Courts are flat-rate. $350 is the admission ticket no matter how much you claim. Not so elsewhere: claim more, pay more.
- Fees are shifted to the loser. Fees shifted are limited to proportionate amounts. Losing is determined by whether you get all that you ask for. Demand $1,000,000 and get $10,000, you are the 99% loser and pay 99% of the attorneys’ fees and court costs.
- Judges review plaintiffs’ complaints for sufficiency (‘plausibility’ if you will), before they serve them. Plaintiffs plead facts and the evidence they plan to rely on; judges know the law. The judges’ maxim is “tell me the facts, I will tell you your rights.”
- Judges at the outset of the case meet with the parties to focus the parties on which law applies and which facts are in dispute.
- Judges supervise evidence taking and decide in every instance whether evidence proposed to be taken concerns those material and disputed facts. There’s no need to take evidence on anything else.
- Parties are under a duty of cooperation. Since they can only take evidence with court permission, they cannot force the other side to provide unlimited discovery.
- Although judges focus the parties early on material facts in dispute, in the case, they do not foreclose looking at other facts and law if the case develops in an unexpected way. They do not decide the case finally until the day of the last oral hearing.
- Judges, as they are in bench trials in America, are required to explain their decisions. That means an implausible verdict is not likely. If the court in its decision somehow credits an implausible claim, the appellate court, which reviews law and facts, has an easy time correcting it.
All of this you can find in greater detail in my book Failures of American Civil Procedure in International Perspective with a foreword by Philip K. Howard. It works.
James R. Maxeiner is the Associate Director of the Center for International and Comparative Law at Baltimore University.Comment ›
Posted 10/21/13 by Common Good
"Health care in America will never be fixed unless we as a nation address doctors' understandable distrust of medical justice." That's what Philip Howard said in a recent interview with the Hartford Business Journal, which you can read in full here. Howard spoke on the delays and inefficiencies imposed by our unreliable, adversarial medical justice system. For example: "On average, [medical malpractice] cases that go all the way to trial take somewhere between 39 and 44 months. By comparison...the median time from filing to trial for all types of civil lawsuits is less than two years."
Howard proposed that health courts, outlined by Common Good here, would "speed this process up."
By creating clear standards of care, health courts will allow judges to dispose of weak and invalid claims quickly after filing, while also disincentivizing doctors and insurers from defending cases in which they are unambiguously at fault. Furthermore, by ensuring that judges and not juries are deciding cases, and by ensuring that judges rely on the testimony of neutral court-appointed experts rather than litigants' hired guns, health courts will eliminate the need to even hire a lawyer for most plaintiffs, shaving considerable time and expense off of the current process.
Check out the full interview for more insights on medical justice reform.Comment ›
Here's a sign of the times, sent from a vacationing reader who admits the rule does not seem to be enforced much.
Of course it makers sense not to swim alone. But requiring two adults over 21 is treating a dip in the pool like shark-diving in a hotdog suit. This is what happens when you start worrying about liability and wondering what precaution a jury would consider ENOUGH precaution.
Or when your lawyers start worrying for you.
Lenore Skenazy is a public speaker and the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!Comment ›
Posted 9/23/13 by Common Good
Last Thursday, Common Good Chair Philip K. Howard presented before the Florida State University College of Medicine’s Grand Rounds series. In his remarks—titled "Remaking the Social Contract with Healthcare Providers"—Howard examines the conditions under which doctors, nurses, and hospital administrators deliver care today, questioning whether they have the freedom to act on their best judgment and values to do what’s right.
"I think we’ve created a [healthcare] structure that demeans healthcare professionals at the same time that it encourages them to act selfishly," he argues. "I think we’ve smothered the conditions for human accomplishment under endless bureaucracy." Howard goes on to address four particular institutional flaws in healthcare that need to be corrected.
You can watch Howard’s full remarks here.Comment ›