An Old Judicial Role for a New Litigation Era

Article excerpt


The judicial role today is not what it used to be, or so we are told. The traditional judicial role was characterized by two guiding principles: Judges relied on the parties to frame disputes and on legal standards to help resolve them. (1) In pretrial practice today, however, overcrowded dockets and overzealous litigants have led judges to stray from this passive role. Rather than sit back and wait for parties to frame legal disputes, many judges take an active, largely discretionary approach to pretrial case management. In class action litigation as well, judges have adopted a new role, albeit for somewhat different reasons. In this context, the problem is not that plaintiffs' attorneys are too zealous on behalf of their clients, but that they often are not zealous enough. It therefore falls upon judges to look out for the interests of absent class members and to balance those interests, often without any meaningful legal guidance.

Litigation is changing so rapidly that even new models of judging designed to update traditional ones have quickly become outdated. In an influential article in the 1970s, Abram Chayes pointed out how the role of the judge had evolved in the mid-twentieth century, as judges presided over new "public law" actions. (2) By the late 1990s, however, Professor Chayes's model itself was outdated. Chayes may have succeeded in addressing the civil rights class actions of the 1960s and 1970s, but he failed to anticipate and "capture the dynamics of modern mass tort litigation," which came to dominate the litigation landscape in the 1980s and 1990s. (3) Given the tremendous uncertainty that surrounds the judicial role in mass tort actions, and in the settlement of mass tort suits in particular, (4) scholars have challenged the academy to develop yet another new model of litigation, one that can guide judges in mass tort litigation as well as in public law class actions. (5)

Instead of continually searching for new models of litigation, I suggest that we reexamine old ones. Contemporary civil litigation no doubt looks different from classic understandings of adjudication, but if judges preside over a different litigation landscape today, this does not mean that the judge's traditional adjudicative role is irrelevant. When we reconsider traditional conceptions of judging, we see that some of the most important controversies in civil procedure today arise not because judges preside over new types of disputes, but rather because judges too often have failed to structure their new responsibilities in a manner that reflects their traditional adjudicative role.

Sometimes judges do find ways to structure new responsibilities so as to remain within the confines of their traditional role, and when they manage to do so their conduct generates very little controversy. In pretrial practice, for example, some judges rely on the summary judgment mechanism--rather than informal case management strategies--to cope with the problems of overzealous attorneys and clogged dockets. Unlike informal case management techniques that are judge-initiated and allow judges broad discretion, the summary judgment mechanism relies on the parties to frame disputes and gives judges legal standards upon which to base their decisions. In class action practice as well, judges sometimes have taken on new responsibilities without straining the boundaries of their traditional adjudicative role. In certain categories of class action litigation that aggregate large numbers of small claims, such as antitrust or securities suits, judges called upon to decide whether to certify a class for litigation ordinarily need not themselves frame arguments on behalf of absent class members but instead can rely on plaintiffs' attorneys and defendants to do so. Moreover, because plaintiffs' attorneys and defendants so often battle over the propriety of class certification, a rich body of case law has developed that can assist judges in making their certification decisions. …