The individual plaintiff plays a critical—yet, underappreciated—role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key sectors of our economy, suits by individual plaintiffs have become a rare phenomenon, if not virtual impossibility. The architecture of liability, by making causes of action more complex and difficult to prove, while equipping defendants with multiple defenses, coupled with the fact that large corporate defendants enjoy a vast cost advantage over individual plaintiffs on account of superior legal expertise and economies of scale and scope, make it nearly impossible for individual plaintiffs to prevail in court, or even get there. This problem pervades many industries, but, for the reasons we detail, it is particularly acute in the insurance, healthcare, medical, and consumer finance sectors.
To address this growing problem, we propose a full-fledged legal reform that encompasses substantive, procedural, evidentiary, and remedial measures. Substantively, we explain how civil liability should be redesigned to give a fairer chance to individual plaintiffs. Specifically, we call for the simplification of causes of action and the elimination of cumbersome elements that doom many individual lawsuits. Procedurally, we propose a fast-track litigation course that would enable courts to resolve disputes expeditiously. As we show, the introduction of this new procedure would deprive corporate defendants of one of their most critical advantages: the ability to extend litigation over long periods of time and make it more costly than it should. Evidentially, we recommend that lawmakers shift the burden of proof of certain disputed elements from plaintiffs to defendants and explain how this could be done. Finally, as far as remedies are concerned, we make a case for a new preliminary remedy—a partial payment order—define the conditions under which it should be awarded, and argue for a more extensive use of statutory damages and damage multipliers. Implementing our proposed reform will go a long way toward restoring the pride of place individual plaintiffs traditionally held in our legal system.
Constitutional Retroactivity in Criminal Procedure
The “watershed” doctrine gives prisoners a constitutional basis to reopen their cases based on a new due process protection that would have made a difference had it been announced before their appeals were exhausted. The Supreme Court has imposed nearly impossible conditions, however, for any new rule of criminal procedure to apply retroactively to a final conviction or sentence. No such rule can be backdated unless it enhances not only the accuracy of criminal verdicts, but also “our very understanding of the bedrock” tenets of fairness in criminal trials. The Court refers to rules that satisfy both these requirements as “watersheds.” In the quarter-century since it established this doctrine, the Court has denied the accuracy-and-fairness credentials to every one of the dozens of new rules it has characterized as procedural and whose watershed status it has considered. Scholarly consensus accordingly casts watershed doctrine as exceptional, esoteric, and insignificant.
This Article challenges that consensus. We use the dynamic concentration model of game theory to show how watershed doctrine counteracts the structural undersupply of constitutional due process rules. The Court maintains too small a caseload to scrutinize more than a fraction of due process violations or specify every such procedural demand. That institution is accordingly ill equipped to rein in the punitive tendencies of elected state judges who owe their jobs to electorates that tend to value crime prevention more than defendants’ rights. Watershed doctrine potentially mitigates this enforcement problem by creating an extreme, if low-probability, threat of repealing scores of final convictions. By issuing a single new watershed rule, the Court can mandate sweeping retrials or release of prisoners into the public. This existential threat provides an overlooked reason why state courts might insulate their states’ criminal procedures against Supreme Court incursions. To achieve the desired insulation, state courts can create constitutional safe harbors by trying to align their procedures with watersheds they project the Court might announce in the future. Indirect support for this theory comes from our comprehensive study of the hundreds of watershed decisions that state courts have issued since 1989. We narrowed this list down to the 228 controlling decisions about whether to backdate distinct due process rules across different jurisdictions. Our analysis found that 27, or more than one in nine, of these decisions inflate the retroactivity rights of criminal defendants.
Constitutional Retroactivity in Criminal Procedure, 91 Washington Law Review 463-514 (2016) (with Dov Fox) download
Our civil liability system affords numerous defenses against every single violation of the law. Against every single claim raised by the plaintiff, the defendant can assert two or more defenses each of which gives him an opportunity to win the case. As a result, when a court erroneously strikes out a meritorious defense, it might still keep the defendant out of harm’s way by granting him another defense. Rightful plaintiffs, on the other hand, must convince the court to deny each and every defense asserted by the defendant. Any rate of adjudicative errors—random and completely unbiased—consequently increases the prospect of losing the case for meritorious plaintiffs while decreasing it for defendants. This pro-defendant bias forces plaintiffs to settle suits below their expected value. Worse yet, defendants can unilaterally reduce the suit’s expected value and extort a cheap settlement from the plaintiff through a strategic addition of defenses. We uncover and analyze this problem and its distortionary effect on settlements and primary behavior. Subsequently, we develop three alternative solutions to the problem and evaluate their pros and cons.
Talking Points, 2015 University of Illinois Law Review 1259-1286 (with Jef De Mot) download
The Relational Contingency of Rights In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by courts. We also show that in many legal areas, such as property law, intellectual property law, insurance law, and criminal law, rightsholders systematically suffer from cost disadvantage vis-à-vis certain categories of challengers who can render their rights virtually unrealizable. After uncovering these problems and analyzing their implications for prevalent understandings of rights in the jurisprudential and economic literatures, we identify mechanisms that our legal system ought to adopt to fend off the threat to the integrity of its rights-based design and bolster the protection afforded by rights. These mechanisms include heightened court fees, fee shifting, punitive damages, and various procedural safeguards. We submit that under the appropriate design, they can go a long way toward countering the strategic abuse of rights.
The Relational Contingency of Rights, 98 Virginia Law Review 1313-1372 (2012) (with Gideon Parchomovsky) download
The Distortionary Effect of Evidence on Primary Behavior In this Essay, we analyze how evidentiary concerns dominate actors’ behavior. Our findings offer an important refinement to the conventional wisdom in law and economics literature, which assumes that legal rules can always be fashioned to achieve socially optimal outcomes. We show that evidentiary motivations will often lead actors to engage in socially suboptimal behavior when doing so is likely to increase their likelihood of prevailing in court. Because adjudicators must base decisions on observable and verifiable information—or, in short, evidence—rational actors will always strive to generate evidence that can later be presented in court and increase their chances of winning the case regardless of the cost they impose on third parties and society at large. Accordingly, doctors and medical institutions will often refer patients to undertake unnecessary and even harmful examinations just to create a record that they went beyond the call of duty in treating them. Owners of land and intellectual property may let harmful activities continue much longer than necessary just to gather stronger evidence concerning the harm they suffer. And even the police will often choose to allow offenders to carry out crimes in order to improve the chance of a conviction. The effect we identify is pervasive. It can be found in virtually all areas of the law. Furthermore, there is no easy way to eliminate or correct it. It should be noted, however, that the evidentiary phenomenon we discuss also has a positive side effect: it reduces adjudication costs for judges and juries and improves the accuracy of court processes. In some cases, this improvement will exceed the social cost stemming from actors’ suboptimal behavior. In other contexts, however, the social cost will far outweigh the benefit.
The Distortionary Effect of Evidence on Primary Behavior, 124 Harvard Law Review 518-548 (2010) (with Gideon Parchomovsky) download
Strategic Enforcement Doctrine and scholarship recognize two basic models of enforcing the law: the comprehensive model, under which law-enforcers try to apprehend and punish every violator within the bounds of feasibility; and the randomized model, under which law enforcers economize their efforts by apprehending a small number of violators and heightening their penalties so as to make violations unattractive. This Article supplements this list of options by developing a strategic model of law enforcement. Under this model, law enforcers concentrate their effort on the worst, or most rampant, violators at a given point in time while leaving all others unpunished. This enforcement strategy will force violators into a cascaded retreat: to avoid detection as one of the worst violators, every individual wrongdoer will bring the level of his unlawful activity down to the point of inconspicuousness—a process that will repeat itself several times to society’s benefit. This Article identifies the circumstances that call for the strategic model’s adoption and illustrates the model’s potential as an enforcement tool in diverse areas of the law that include employment discrimination, election districting, and copyright protection.
Strategic Enforcement, 95 Minnesota Law Review 9-58 (2010) (with Margaret H. Lemos) download
THE OVERENFORCEMENT PARADIGM
Overenforcement of the law occurs when the total sanction suffered by the violator of a legal rule exceeds the amount optimal for deterrence. Overenforcement sometimes generates overdeterrence that cannot be remedied through the adjustment of substantive liability standards or penalties in light of operational and expressive constraints. When that happens, the legal system can counteract the effects of overenforcement by adjusting evidentiary or procedural rules to make liability less likely (ex ante). This framework -- the overenforcement paradigm -- illuminates previously unnoticed features of various evidentiary and procedural arrangements. It also provides a useful analytical and prescriptive tool for creating balanced incentives in cases in which overenforcement is present.
Overenforcement, 93 Georgetown Law Journal 1743 (2005) (with Richard A. Bierschbach) download
Ambiguity aversion is a person's rational attitude towards probability's indeterminacy. When a person is averse towards such ambiguities, he increases the probability of the unfavorable outcome to reflect that fear. This observation is particularly true about a criminal defendant who faces a jury trial. Neither the defendant nor the prosecution knows whether the jury will convict the defendant. Their best estimation relies on a highly generalized probability that attaches to a broad category of similar cases. The prosecution, as a repeat player, is predominantly interested in the conviction rate that it achieves over a long series of cases. It therefore can depend on this general probability as an adequate predictor of this rate. The defendant only cares about his individual case and cannot depend on this general probability. From the defendant's perspective, his individual probability of conviction is ambiguous. The defendant consequently increases this probability to reflect his fear of that ambiguity. Because most defendants are ambiguity-averse, while the prosecution is not, the criminal process systematically involves and is thoroughly affected by asymmetric ambiguity-aversion.
Asymmetric ambiguity-aversion foils criminal justice. The prosecution can exploit it by forcing defendants into plea bargains that are both inefficient and unfair. Because plea bargain is a predominant method of case-disposition across the United States, this exploitation opportunity is particularly pernicious. The legal system ought to eliminate it.
Two Fifth Amendment doctrines -- the rule against double jeopardy and the grand jury review of indictments -- have the effect of mitigating this problem. The rule against double jeopardy sets a pro-defendant system of asymmetric rights to appeal. This system reduces the probability of conviction for all defendants, regardless of the merits. This probability reduction offsets -- but not eliminates -- the upward adjustment that an ambiguity-averse defendant introduces into his probability of conviction. Grand jury review disambiguates the defendant's probability of conviction when he is informed about the grand jurors' voting score. This disambiguation is only partial, though, because grand jurors are authorized to indict upon mere showing of a "probable cause."
The prevalent constitutional doctrine should therefore be modified by giving a defendant the right to choose between a bench trial and a trial by jury. Judges are repeat institutional players that credibly commit themselves to reasons for decisions that are evenhanded, known and institutionally approved. This commitment is induced not only by the judges' fear of reversal and other career-related repercussions, but also by the defendant's constitutional entitlement to a trial by jury. For judges, jury trial is a time-consuming and effort-intensive process with virtually no career-enhancing returns. Judges therefore strongly prefer a bench trial over a trial by jury. To actualize this preference, judges need systematically to deliver evenhanded decisions that follow the institutionally approved reasons. This makes judges' decisions predictable. The defendant's probability of being convicted by a judge in a bench trial thus becomes unambiguous, which neutralizes the prosecution's ambiguity-exploiting pressure in plea bargaining.
Empirical data confirm these findings. Specifically, they identify three major trends. First, bench trials are prevalent in jurisdictions featuring high trial rates, generated by a non-meticulous selection of cases for prosecution. Second, the rate of acquittals in bench trials is much higher than in trials by jury. The defendants' ambiguity-aversion is the most plausible explanation of these trends. Defendants with real prospects for acquittal have much to lose and are therefore unwilling to depend upon unpredictable juries. Finally, there is a demand for jury-consulting services and no discernible market for judge-consulting services. Litigants are willing to pay for information predicting the outcomes of jury trials and are generally unwilling to pay for information predicting judges' decisions in bench trials. This leads to the conclusion that ambiguity aversion is particularly problematic in trials by jury.
Ambiguity Aversion and the Criminal Process, 81 Notre Dame Law Review 1495 (2006) (with Uzi Segal) download
CONSTITUTIONAL EVIDENCE LAW
This Article identifies the causes and consequences of a puzzling asymmetry in constitutional law. Of the three facets of adjudicative fact-finding—evidence, procedure, and rules of decision—only two are constitutionalized. Constitutional law regulates procedural and decisional rules—not whether the evidence that fact-finders use is adequate. Allocation of the risk of error by procedures and decisional rules—formulated as burdens of proof—is subject to constitutional scrutiny. Allocation of the risk of error by the rules of evidential adequacy, however, is free from that scrutiny. This constitutional asymmetry is puzzling because all risk-allocation impacts court decisions and, consequently, whether a person is deprived erroneously of her liberty or property. This Article explains this asymmetry in the informal constitutionalization of evidence—a phenomenon that implicates three dynamics of power and culture. First, state evidence rules generally align with the Supreme Court’s agenda for risk-allocation. Second, when those rules do deviate from the Court’s agenda to promote local interests, they do not do so overtly. Finally, a state rule’s alignment with a federal rule of evidence guarantees its constitutionality. This informal order reflects a series of implicit, but credible understandings between state courts and the Supreme Court. This Article identifies and illustrates these understandings.
Constitutional Evidence Law, 61 Vanderbilt Law Review 65-124 (2008) download