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Institutions, Rulemaking, and the Politics of Judicial Retrenchment

Published online by Cambridge University Press:  08 September 2010

Sarah Staszak
Sarah Staszak*
Affiliation:
Princeton University
*
sstaszak@princeton.edu
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Abstract

This article examines the efforts of political and legal actors to scale back access to the courts and judicial authority in the decades since the rights revolution of the 1950s and 1960s.  Despite the importance and consequences that such efforts have had for the judicial system and rights protections in the United States, public law and American Political Development (APD) scholars have only begun to study this phenomenon within existing theories of institutional change.  Through an examination of efforts to reform procedural rules that govern courtroom access, adjudication, and potential remedies, this article presents evidence that both builds on and pushes this scholarship in new directions.  In contrast to law and APD scholars who have promoted a ‘regime politics’ model of judicial authority that focuses on the interests of national elected officials and Supreme Court majorities, this article finds that actors pursuing retrenchment come from both within and outside the judiciary, evidencing a robust set of individuals and interests (far beyond judges and politicians) who might be considered “judicial” actors.  Building on and complicating current understandings of the politics of retrenchment, moreover, I find that the groups involved in judicial retrenchment change significantly over time, are motivated by more than partisan backlash, and that the availability of malleable institutional “rules” enhances the likelihood of their success.  Finally, I find that the processes of judicial retrenchment are distinctive but not static, unfolding in a series of methods for attempted change that are not only path dependent, but also path breaking.

Type
Research Article
Information
Studies in American Political Development , Volume 24 , Issue 2 , October 2010 , pp. 168 - 189
Copyright
Copyright © Cambridge University Press 2010

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References

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7. ADR refers to dispute resolution techniques that fall outside of the traditional legal process. These techniques (which include arbitration, mediation, and negotiation) are typically facilitated by nonjudicial third party neutrals selected by the two parties to a dispute, and aim to allow parties to settle their dispute short of litigation. While the practice of ADR dates back to England, the contemporary ADR movement in the U.S. began in the early 1900s (facilitated by the Federal Arbitration Act of 1925) and developed into a contemporary movement in the 1960s and 1970s.

8. Regarding the development of conservative support structures, see Teles, Steven, The Rise of the Conservative Legal Movement (Princeton, NJ: Princeton University Press, 2008)Google Scholar.

9. This is also in part the case because much (though certainly not all) of the public law canon remains rooted in the middle of the twentieth century, when the “rights revolution,” “adversarial legalism,” and “legalization” exploded. See Feeley and Rubin, Judicial Policy Making; Howard Gillman, “Party Politics and Constitutional Change;” Kagan, Robert A., Adversarial Legalism: The American Way of Law (Cambridge, MA: Harvard University Press, 2001)Google Scholar.

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12. Influenced by Max Weber, scholars who focus on “institutional thickening” at least implicitly (and often explicitly) assume that the “iron cage” of rule-based, bureaucratic entrenchment means that the state will never stop developing, growing larger, and expanding its authority See Skocpol, Theda, States and Social Revolutions: A Comparative Analysis of France, Russia and China (New York: Cambridge University Press, 1979)Google Scholar; Skowronek, Stephen, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (New York: Cambridge University Press, 1982)Google Scholar.

13. See Pierson, Paul, “Path Dependence, Increasing Returns, and the Study of Politics,” American Political Science Review 94 (2000)CrossRefGoogle Scholar; and Politics in Time: History, Institutions, and Social Analysis (Princeton, NJ: Princeton University Press, 2004).

14. See Skowronek, Stephen, The Politics Presidents Make: Leadership from John Adams to Bill Clinton (Cambridge, MA: Belknap Press of Harvard University Press, 1997)Google Scholar.

15. See Carpenter, Daniel P., The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862–1928 (Princeton, NJ: Princeton University Press, 2001)Google Scholar; Howard Gillman, “How Political Parties Can Use the Courts.”

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17. As Paul Pierson has persuasively argued, we have every reason to expect that retrenchment is a distinctive political and practical project. See Pierson, Paul, Dismantling the Welfare State? Reagan, Thatcher, and the Politics of Retrenchment (New York: Cambridge University Press, 1995)Google Scholar.

18. Indeed, descriptions of the successful attacks on the Supreme Court by reformers in the nineteenth century and the New Deal are emblematic of this, as they emphasize that these attacks were not about institutional decline but about a broader enabling and harnessing of state power once an out-of-date judiciary relinquished its authority. See Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Policy Powers Jurisprudence (Durham, NC: Duke University Press, 1995)Google Scholar; Orren, Karen, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1991)Google Scholar; Skowronek, Building a New American State.

19. Hacker, Jacob, “Privatizing Risk without Privatizing the Welfare State: The Hidden Politics of Social Policy Retrenchment in the United States,” American Political Science Review 98 (2004)Google Scholar; Patashnik, Eric M., Reforms at Risk: What Happens After Major Policy Changes are Enacted (Princeton, NJ: Princeton University Press, 2008)Google Scholar; Pierson, Dismantling the Welfare State; Sheingate, Adam D., The Rise of the Agricultural Welfare State: Institutions and Interest Group Power in the United States, France, and Japan (Princeton, NJ: Princeton University Press, 2001)Google Scholar; Teles, The Rise of the Conservative Legal Movement.

20. Although see Jeb Barnes, “Courts and the Puzzle of Institutional Stability and Change.”

21. As Hacker explains, different policy environments engender different modes of change. When barriers to authoritative change and internal adaptation are low, formal revision is the most likely mode of change. When both are high, drift—which he argues most often constitutes retrenchment efforts in American politics—is most likely. When the barriers to authoritative change are low and the barriers to internal adaptation are high, layering is likely to emerge. When the reverse is true (barriers to authoritative change are high and barriers to internal adaptation are low), conversion is most likely. See Hacker, “Privatizing Risk,” 248.

22. This is not a shortcoming of the retrenchment literature, but simply a hazard of transporting a conceptual apparatus from the realm of policy to an entire branch of constitutional governance. As it developed as a device for capturing and explaining complicated erosions in public policy, the word “retrenchment” usually refers to the process of taking away concentrated benefits in exchange for diffuse, societal goods. In terms of retrenchment in the judiciary, then, this definition most closely approximates efforts to constrict access to the courts. As we know, however, access is just one target attacked by actors interested in lessening the influence of the judiciary on political outcomes. Judicial retrenchers also seek to decrease overall judicial authority and autonomy, as well as shift legal questions away from the judiciary and to other institutional venues.

23. Retrenchers not only seek to lessen overall judicial authority, but in some cases increase it for the express purpose of granting judicial actors the discretion to themselves limit access to the courts. This is reflective of what is often an inverse relationship between the exercise of judicial power and constricting access to the judicial branch. Individual justices also vacillate between these goals from case to case as well; Justice Scalia's positions in the majority of the Supreme Court's recent decisions in Bell Atlantic Corporation v. Twombly (550 U.S. 544, 2007) and Ashcroft v. Iqbal (129 S. Ct. 1937, 2009) provide examples of how a justice who is so committed to decreasing judicial power can find himself squarely in the position of expanding it in controversial ways.

24. This is distinguishable from the question of whether or not their reforms subsequently led to the changes in policy outcomes that they intended (through their chosen method for pursuing institutional change).

25. This is not surprising given that we have every reason to expect that retrenchment of any kind is a difficult political project. Successful countermobilization is far from guaranteed, as actors face roadblocks such as veto points, coordination problems, and the various forces of policy feedback (see Hacker, “Privatizing Risk,” and Pierson, Dismantling the Welfare State). Steven Teles has recently examined why mobilizing against the deeply entrenched and well-defended liberal legal network is especially problematic. Professional domains such as the law are particularly well defended due to the presence of well-defined barriers to entry. Because the leadership in law schools and legal groups is typically controlled by incumbents, countermobilizers find themselves at a significant disadvantage—not only because of exclusion based on their interests, but also because they lack access to the information necessary to infiltrate professional networks. This is true of any entrenched institution, as members tend to alter rules and processes to advantage their resources in a durable way. Further, those mobilizing against judicialization also face substantial ideational entrenchment. Courts are considered the primary, legitimate protectors of rights, and because so much of the expansion of court authority was based on the entrenchment of rights, it is difficult to wrest this authority from them—even where there are empirical concerns regarding the practical functioning of such a system, as has often been the case in light of the “litigation crisis” (see Teles, The Rise of the Conservative Legal Movement, 18–19).

26. See Fallon, Richard H., “The ‘Conservative’ Paths of the Rehnquist Court's Federalism Decisions,” University of Chicago Law Review 69 (2002)Google Scholar; Siegel, Andrew M., “The Court Against Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court's Jurisprudence,” Texas Law Review 84 (2006)Google Scholar.

27. See Keck, Thomas M., The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Chicago, IL: University of Chicago Press, 2004)CrossRefGoogle Scholar; Teles, The Rise of the Conservative Legal Movement.

28. Keck, The Most Activist Supreme Court in History.

29. This mirrors (indeed paraphrases) Eric Schickler's characterization of national legislatures: “Whatever else a national legislature may be, it is a complex of rules, procedures, and specialized internal institutions, such as committees and leadership instruments. Particular configurations of these rules, procedures, committees, and leadership instruments may serve the interests of individual members, parties, pressure groups, sectors of society, or the legislature as a whole. As a result, as any legislature evolves through time, little is more fundamental to its politics than recurrent, often intense, efforts to change its institutions” Schickler, Disjointed Pluralism, 3.

30. Scholars of civil litigation reform have long integrated these theoretical contributions. See Barnes, “Courts and the Puzzle of Institutional Stability and Change” (examining asbestos policy); Burke, Lawyers, Lawsuits, and Legal Rights (on the politics of antilitigation legislation); Epstein, Richard, “Products Liability: From Contract to Regulation in the United States and Europe,” Tel Aviv University Studies in Law 9 (1989)Google Scholar; Farhang, “The Political Development of Job Discrimination Litigation;” Kagan, Adversarial Legalism; Melnick, R. Shep, “Courts and Agencies,” in Miller, Mark C. and Barnes, Jeb, eds., Making Policy, Making Law: An Interbranch Perspective (Washington, DC: Georgetown University Press, 2004)Google Scholar.

31. See for example Clayton, Cornell W., Government Lawyers: The Federal Legal Bureaucracy and Presidential Politics (Lawrence, Kansas: University of Kansas Press, 1995)Google Scholar and Miller, Mark C. and Barnes, Jeb, eds., Making Policy, Making Law: An Interbranch Perspective (Washington, DC: Georgetown University Press, 2004)Google Scholar.

32. See Frymer, Paul, “Law and American Political Development,” Law and Social Inquiry 33 (2008)CrossRefGoogle Scholar.

33. Although see Frymer, Paul, “Acting When Elected Officials Won't: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935-1985,” American Political Science Review 97 (2003)Google Scholar; Johnson, Lori A., “Creating Rules of Procedure for Federal Courts: Administrative Prerogatives or Legislative Policymaking?” Justice Systems Journal 24 (2003): 23Google Scholar.

34. Bone, Robert G., “The Process of Making Process: Court Rulemaking, Democratic Legitimacy, and Procedural Efficacy,” Georgetown Law Review 87 (1999)Google Scholar; Burbank, Stephen B., “The Rules Enabling Act of 1934,” University of Pennsylvania Law Review 130 (1982)Google Scholar; Resnik, Judith, “Changing Practices, Changing Rules: Judicial and Congressional Rulemaking on Civil Juries, Civil Justice, and Civil Judging,” Alabama Law Review 49 (1997): 201Google Scholar; Subrin, Stephen N., “How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective,” University of Pennsylvania Law Review 135 (1987): 909Google Scholar.

35. See Burbank, “Rules Enabling Act.”

36. This both utilizes and builds upon Burke's analysis of antilitigation reform, in which he finds that different types of antilitigation legislation engender their own politics—some of which are partisan, some cross-partisan, and others largely nonpartisan. See Burke, Lawyers, Lawsuits, and Legal Rights, ch. 1.

37. Jeb Barnes has recently operationalized Hacker's typology in hopes of explaining “court-based tort reform” in the case of asbestos policy. In so doing, he finds that identifying the dominant form of retrenchment—in this case, administrative “drift”—had explanatory value only when placed within a broader conception of the processes of retrenchment. Specifically, in the case of asbestos policy, administrative drift led to periods of judicial conversion and layering, indicating that drift (as well as conversion, layering, and revision) can best be understood as a transitional stage of change. In order to better explain institutional change, he concludes that “these concepts must be fit together to identify recurring patterns of development that encompass the multiple forums, access points, and exit strategies inherent in the striated American state.” (See Jeb Barnes, “Courts and the Puzzle of Institutional Stability and Change,” 646.) I find, also in line with Barnes, that in order to thoroughly assess retrenchment we need better precision regarding the sequences of strategies employed, the interests that they serve, and the probability of success or failure. I additionally conclude that just as political environments and cleavages change over time, so do modes of retrenchment. In order for this typology to have any explanatory value, then, it must be placed in a broader temporal context. This is consistent with the importance that both the institutional change and APD literatures place on the importance of historical development as an independent variable and the forces of path dependence.

38. See Galanter, Marc, “Why the ‘Haves’ Come Out Ahead: Speculations on the Outcomes of Legal Change,” Law and Society Review 9 (1974)CrossRefGoogle Scholar.

39. The preexisting rules informing adjudication were known as the Field Code of Civil Procedure, which was part of the Laws of the State of New York § 258 (1848).

40. Resnik, Judith, “Failing Faith: Adjudicatory Procedure in Decline,” University of Chicago Law Review 53 (1986): 494CrossRefGoogle Scholar; Subrin, “How Equity Conquered Common Law.”

41. Burbank, “The Rules Enabling Act,” 1035.

42. Act of June 1, 1872.

43. See, for example, “Report of the Committee on Uniformity of Procedure and Comparative Law,” 19 ABA Report 411, 419 (1896).

44. Congressional Record 46 (1910), p. 17 and 26.

45. These early legislative developments took the form of the Clayton Bill of 1912 and the Sutherland Bill of 1917, the latter of which would become the substance of the subsequent Rules Enabling Act. As the debate over procedural reform progressed in the 1920s, the proposed bills began to include stipulations that, when promulgating rules, the Supreme Court consult with a committee of judges and lawyers. See Procedure in the Federal Courts, Hearings on H.R. 2388 and H.R. 90 Before the House Committee on the Judiciary, 67th Congress, 2nd session (1922). Additionally, President Taft began to recommend that the Court have the power to make rules at law as it had in equity, blending them into a code which would “make the procedure the same in all and as simple as possible” See Taft, , “Three Needed Steps of Progress,” ABA Journal 34 (1922)Google Scholar. These suggestions merged to shape the 1924 bill, co-written by Taft and Senator Albert B. Cummins of Iowa (S. 2061), which in substance largely constituted the bill as it would pass a decade later and was careful to make a dichotomy between matters of procedure and substantive law.

46. This wariness was largely unsurprising, given that in the Lochner era Democrats regularly found their legislative efforts thwarted by an antiregulatory Supreme Court. See Gillman, The Constitution Besieged, and Orren, Belated Feudalism.

47. Burbank, “The Rules Enabling Act,” 1095–96.

48. Johnson, “Creating Rules of Procedure for Federal Courts.”

49. The rulemaking process itself was also affected by amendments to the Rules Enabling Act in 1988. However, the amendments largely codified procedures that the rules committees, for a variety of reasons (discussed below) already followed at the time, such as requiring that all committees “consist of members of the bench and professional bar, and trial and appellate judges,” requiring the appointment of a standing committee, authorizing the Judicial Conference to appoint other committees to assist it, and requiring that committee meetings be open, minutes be recorded and made open to the public, and interested parties sufficiently notified of their proceedings ahead of time (28 U.S.C. Section 2073).

50. Section 2074 of the Rules Enabling Act was amended in 1988 to require that proposals be transmitted to Congress “not later than May 1 of the year in which [it] is to become effective,” and that changes go into effect “no earlier than December 1.” The previous extension, enacted in 1950, had extended the timeframe from the Rules Enabling Act's initial sixty days to ninety days. See Act of May 10, 1950.

51. Resnik, “Changing Practices, Changing Rules,” 201.

52. Sibbach v. Wilson, 312 U.S. 1 (1941), at 18.

53. Burbank, “The Rules Enabling Act,” 1027.

54. Bone, “The Process of Making Process,” 3–4.

55. Clemens, Elisabeth S. and Cook, James M., “Politics and Institutionalism: Explaining Durability and Change,” Annual Review of Sociology 25 (1999)CrossRefGoogle Scholar.

56. Subrin, Stephen N. and Woo, Margaret Y.K., Litigating in America: Civil Procedure in Context (New York, NY: Aspen Publishers, 2006), 4Google Scholar.

57. See Weinstein, Jack B., “After Fifty Years of the Federal Rules of Civil Procedure: Are the Barriers to Justice Being Raised?” University of Pennsylvania Law Review 137 (1989)CrossRefGoogle Scholar.

58. Rule 23(a) as amended in 1966 lists four prerequisites for all class actions, whether plaintiff or defendant (in practice there are almost no defendant class actions): numerosity, commonality, typicality, and representativeness. These require that the class be so large that joinder of all members would be impracticable, questions of law or fact be held in common, that the claims and defenses of the representative parties are typical of all of those in the class, and that the named representatives can fairly represent the whole class (respectively). Historically speaking, class actions proliferated in the decade following the 1966 amendments, proving to be a highly effectual tool for incentivizing lawyers to represent economically disadvantaged groups in court.

59. Joinder of claims in civil law, which is governed by Rule 18(a), allows claimants to consolidate all claims that they have against an individual who is already party to a case. Joinder of parties, governed by Rule 20, allows multiple plaintiffs to join in an action if each of their claims arises from the same transaction or occurrence, and if there is a common question of law or fact relating to all plaintiffs' claims.

60. Discovery refers to the right of civil litigants to acquire, under the auspices of the judicial system, information bearing on disputes to which they are a party. Discovery rules had been severely limited prior to 1938, and the creation of Rule 26 sought to balance various factors, such as eliminating surprises at trial. Formal discovery devices include 1) interrogatories (written questions requiring answers under oath), 2) oral depositions (questions under oath, recorded), 3) written depositions, 4) requests for documents, 5) examinations of property, etc., where applicable, and 6) mental and physical examinations of opposing parties. Discovery also permits each side to demand that the other admit or deny facts and allows for mandatory disclosure, whereby some information must be disclosed to the opposing side without request. In 1993 the rules were amended to distinguish discovery from the antecedent processes of disclosure, wherein parties have a duty to disclose, without awaiting formal discovery requests, certain basic information that is needed in most cases to prepare for trial or to make an informed decision about settlement. Disclosure requirements are located in Rule 20(a).

61. See Feeley and Rubin, Judicial Policymaking in the Modern State. Despite their now prominent role, the activities of special masters were somewhat limited by their treatment in the original 1938 rules. Drawn from equity, these rules seemed only to govern the use of special masters in trial functions, whereas much of the perceived need for special masters arises in the pretrial and posttrial phases of litigation.

62. Federal Judicial Caseload Statistics, Judicial Business, 2007, 10.

63. As of 2007, civil rights filings in federal court numbered 31,756. See U.S. Courts statistical reports (Judicial Facts and Figures), Judicial Business of the U.S. (2000) and (2007), Table C-2A: U.S. District Courts—Civil Cases Commenced, by Nature of Suit.

64. Chayes, Abram, “The Role of the Judge in Public Law Litigation,” Harvard Law Review 89 (1976)CrossRefGoogle Scholar. See also Epp, The Rights Revolution; Melnick, Between the Lines.

65. See Kessler, Mark, “The Interorganizational Politics of Legal Activity,” American Bar Foundation Research Journal 11 (1986)Google Scholar, and Lawrence, Susan E., The Poor in Court: The Legal Services Program and Supreme Court Decision Making (Princeton, NJ: Princeton University Press, 1990)Google Scholar.

66. Farhang, “The Political Development of Job Discrimination Litigation.” See also Burke, Lawyers, Lawsuits, and Legal Rights; Gillman, “Party Politics and Constitutional Change;” Melnick, Between the Lines.

67. Burbank, Stephen B., “Procedure and Power,” Journal of Legal Education 46 (1996), 513Google Scholar.

68. 347 U.S. 483 (1954).

69. Hearing before the Senate Subcommittee of Administrative Oversight and the Courts, 1999, 60.

70. Congressional Record, 1973, 8340.

71. These rulemakers, however, do not consider themselves as political. Throughout the years of House and Senate hearings, members of the Judicial Conference would continually state that their activities were purely procedural and should not be interfered with by the political branches. See, for example, Judge Keeton, Chairman of the Rules of Practice and Procedure, Judicial Conference of the United States, statement before the Subcommittee on Intellectual Property and Judicial Administration, House of Representatives, June 16, 1993, 6.

72. Congressional Record, 1973, 7645.

73. As of 1996, ATLA changed its name to the American Association for Justice.

74. Congressional Record, 1973, 8345.

75. Congressional Record, 1973, 3739–3740.

76. See Weaver, Warren Jr., “Senate Puts Off Evidence Rules,” New York Times, February 7, 1973Google Scholar.

77. See Farhang, “The Political Development of Job Discrimination Litigation.”

78. Garth, Bryant, “From Civil Litigation to Private Justice: Legal Practice at War with the Profession and its Values,” Brooklyn Law Review 59 (1993): 515Google Scholar.

79. To the degree that Republicans and the Reagan Administration were involved, it was less from their (largely failed) efforts to defund government lawyers and prevent the Legal Services Corporation from litigating and more from making critical appointments to the Supreme Court. The Court (while keeping their distance, as usual, from official rulemaking procedures) in turn began to exploit their opportunities to chip away at the vast judicial system.

80. Burbank, Stephen B., “Implementing Procedural Change: Who, How, Why, and When?” Alabama Law Review 49 (1997): 224Google Scholar.

81. Simon, Roy D. Jr., “The Riddle of Rule 68,” George Washington Law Review 54 (1985)Google Scholar.

82. Vairo, Georgene, “Rule 11: A Critical Analysis,” 118 F.R.D. 189 (1988): 19194Google Scholar.

83. Hearings before the House Subcommittee on Intellectual Property and Judicial Administration, 1993, 6.

84. Federal Judicial Center, “Directions, No. 2: Special Issue on Rule 11,” Washington, DC (1991), 6.

85. Hearings before the House Subcommittee on Intellecutal Property and Judicial Administration, 1993, 6 and 8.

86. Ibid., 27.

87. Marcus, Richard L., “Modes of Procedural Reform,” Hastings International and Comparative Law Review 31 (2008): 157Google Scholar.

88. Hearing before the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice, 1983, 20.

89. Ibid., 19.

90. Bone, “The Process of Making Process,” 4; see also Burbank, “Procedure and Power,” 515–16.

91. Both comments and testimony were on a “by invitation only” basis prior to the passage of this law, and in practice those regularly contacted included only a handful of major legal organizations such as the ABA.

92. Johnson, “Creating Rules of Procedure.”

93. Hearings before the Senate Judiciary Committee, 1990, 30.

94. Ibid., 56.

95. Ibid., 58.

96. Ibid., 208–9.

97. See Greve, Michael S., “Why Defunding the Left Failed,” National Affairs 89 (1987)Google Scholar.

98. President Reagan made two key conservative appointments to the Supreme Court in the 1980s, appointing Antonin Scalia in 1982 and Anthony Kennedy in 1988, as well as elevating William Rehnquist to chief justice. Reagan also appointed 83 judges to the U.S. Courts of Appeals and 290 to the U.S. district courts.

99. See Siegel, “The Court Against Courts,” 1097.

100. Marek v. Chesny, 473 U.S. 1 (1985).

101. U.S.C. 41 Section 1988.

102. The Court further constrained attorneys' fees in Evans v. Jeff D., 475 U.S. 717 (1986) in ruling that plaintiffs can bargain away their attorneys' fees in a settlement just as they can any other relief.

103. See Staszak, Sarah, The Politics of Judicial Retrenchment, Doctoral Dissertation, Brandeis University, 2009Google Scholar.

104. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

105. See also Subrin and Woo, Litigating in America. Summary judgment, which is governed by Rule 56, is considered the last gate-keeping function before trial, addressing whether or not the claim at hand should even go to a jury.

106. For a full discussion of the trajectory of summary judgment, see Burbank, Stephen B., “Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?” Journal of Empirical Legal Studies 1 (2004)CrossRefGoogle Scholar.

107. Celotex Corp. v. Catrett, 477 U.S. 317 (1986), at 323.

108. Subrin and Woo, Litigating in America, 171.

109. See Burbank, “Vanishing Trials and Summary Judgment in Federal Civil Cases.” Marc Galanter also notes that a Federal Judicial Center survey of cases in six metropolitan districts from 1975–2000 found that the percentage of cases terminated by summary judgment increased from 3.7 percent in 1975 to 7.7 percent in 2000. See Galanter, Marc, “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts,” Journal of Empirical Legal Studies (2004)Google Scholar.

110. See Burke, Lawyers, Lawsuits, and Legal Rights.

111. Haltom and McCann, Distorting the Law, 3 (and throughout).

112. Vicki Kemper, “Lawyers on Trial,” Common Cause Magazine, September 22, 1993.

113. Stanley, Alexandra, “The 1992 Campaign: Issues—Tort Reform; Selling Voters on Bush, Nemesis of Lawyers,” New York Times, August 31, 1992Google Scholar.

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115. Punitive damages vary from traditional damages in an important way: while damages are usually intended to compensate plaintiffs for their losses, punitive damages are awarded to successful plaintiffs (on top of regular damages) in order to punish defendants for egregious conduct and to deter defendants and others from future offenses. Due to their nature, they are not available to redress all legal wrongs and are never awarded automatically or as a matter of right.

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117. See Lavelle, Marianne, “Class Action Crackdown,” U.S. News and World Report, February 21, 2005, 46Google Scholar.

118. Harris, John F., “Victory for Bush on Suits,” Washington Post, February 18, 2005, A1Google Scholar.

119. Harris, John F. and VandeHei, Jim, “Senate Nears Revision of Class Action,” Washington Post, February 10, 2005, A4Google Scholar.

120. The PSLRA has arguably played a major role in facilitating the modern financial crisis, largely by making it difficult for investors concerned with fraud to obtain information about the investment firms in question.

121. Levelle, “Class Action Crackdown,” 46.

122. Bouchard, Francis B., “Class Action Lessons Learned,” Business Insurance, February 17, 2005, 8Google Scholar.

123. At the time the CAFA was passed, the problem of so-called “judicial hellholes” was arguably solving itself, largely through retrenchment as a result of changes in elected state supreme courts. See Burbank, Stephen B., “The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View,” University of Pennsylvania Law Review 156 (2008)Google Scholar.

124. The Federal Judicial Center is tracking the effect of the CAFA on class action litigation and has issued several reports on the topic. See, for example, Thomas E. Willging and Emery Lee, “The Impact of the Class Action Fairness Act of 2005: Third Interim Report to the Judicial Conference Advisory Committee on Civil Rules,” 2007.

125. Scott v. Harris, 550 U.S. 372 (2007); Bell Atlantic Corp. v. Twombly, 200 U.S. 321 (2007); Ashcroft v. Iqbal, 556 U.S. (2009).

126. Hearing on Whether the Supreme Court Has Limited Americans' Access to Courts, Prepared Statement of Stephen B. Burbank, Hearings Before the Senate Judiciary Committee, December 2, 2009. See also Hatamyar, Patricia W., “The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?” American University Law Review 59 (2010)Google Scholar

127. Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001).

128. Ibid., at 618.

129. Albiston, Catherine R. and Nielson, Laura Beth, “The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General,” UCLA Law Review 54 (2007): 1087Google Scholar.

130. Siegel, “The Court Against Courts,” 1149.

131. BMW of North American, Inc. v. Gore, 517 U.S. 559 (1996).

132. Siegel, “The Court Against Courts,” 1149.

133. See Siegel, “The Court Against Courts.”

134. Pub. L. No. 96-481 (1980).

135. See Leubsdorf, John, “Toward a History of the American Rule on Attorney Fee Recovery,” Law and Contemporary Problems 47 (1984)CrossRefGoogle Scholar.

136. Ibid. See also Awards of Attorney's Fees Against the Federal Government, Hearings Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice, House Judiciary Committee, 96th Congress, 2nd Session (1980), 15-29, 56–58.

137. See Staszak, The Politics of Judicial Retrenchment.

138. Total federal civil cases filed, for example, peaked at 281,338 cases in 2004 and dropped to 257,507 in 2007. See Federal Judicial Caseload Statistics, Judicial Business, 2007, 10.

139. See Galanter, Marc and Cahill, Mia, “Most Cases Settle: Judicial Promotion and Regulation of Settlements,” Stanford Law Review 46 (1994)CrossRefGoogle Scholar. See also Subrin and Woo, Litigating in America, 2006.

140. Marc Galanter, “The Vanishing Trial,” (2004).

141. Burbank, Hearing Before the Senate Judiciary Committee (2009), 17.

142. This builds upon Burke's similar findings with regard to antilitigation legislation in particular (see footnote 34 above).

143. See also Schattschneider, E.E., The Semisovereign People: A Realist's View of Democracy in America (Boston: Wadsworth Cengage Learning, 1975)Google Scholar.

144. This conclusion is also consistent with what Jeb Barnes has found when applying Hacker's typology to the case of court-based tort reform in asbestos policy.

145. This analysis employs Jacob Hacker's typology of modes of informal retrenchment as an explanatory device. In addition to pinpointing the varied forms that retrenchment takes, Hacker provides a major service to the literature on institutional change in associating these mechanisms with the conditions under which they are likely to occur. See Hacker, “Privatizing Risk,” 248.

146. Even their one late-breaking victory—class action reform—has been widely argued as primarily symbolic.

147. Within Hacker's typology, “conversion” is most likely to occur when barriers to authoritative change are high and barriers to internal adaptation are low. See also Orren and Skowronek, The Search for American Political Development.

148. Overreach by rulemakers in this case broke what might have been considered a “policy monopoly” over the rulemaking process, causing both the “policy image” and venue of authority to change. See also Baumgartner, Frank R. and Jones, Bryan D., Agendas and Instability in American Politics (Chicago: University of Chicago Press, 1993)Google Scholar.

149. See Daniel P. Carpenter, The Forging of Bureaucratic Autonomy.

150. See generally Schattschneider, The Semisovereign People.