Private parties are performing an increasing number of functions that were once discharged by the government. Indeed, privatization has become so pervasive that some public law scholars have dubbed it the “new religion.”
While scholars have criticized this development on many different grounds,
one particularly prominent criticism is that privatization involves a problematic “delegation” of state
power to private parties.
Dispute resolution has hardly been immune from the privatization trend. One of the most significant developments in civil justice during the last few decades has been the mass exodus of private disputes from public courts to private forms of dispute resolution, particularly arbitration.
Many scholars have criticized arbitration in terms that echo some of the criticisms of privatization more generally. In particular, some have espoused various versions of what this Article calls the “delegation critique.” The gravamen of the critique is that the current arbitration regime delegates state power to private parties and allows them to abuse that power with virtual impunity. Judith Resnik has thus criticized arbitration for “delegating,” “outsourcing,” or “privatizing” the judicial function.
David Horton has argued that the current arbitration regime impermissibly delegates Congress’s lawmaking powers to private parties.
A host of other scholars have worried that arbitration permits private parties to use procedure to effectively override, or opt out of, substantive law.
Some scholars have even contended that arbitration involves the exercise of such important state powers that it constitutes “state action” subject to the strictures of the Constitution.
Though reflecting somewhat different concerns, each of these criticisms ultimately questions whether the state should be coercively enforcing the products of private dispute resolution without any meaningful scrutiny.
While largely accepting the main thrust of the delegation critique, this Article challenges one of its key assumptions, with implications both for our understanding of civil procedure and for our policies toward arbitration. Scholars have rightly worried that the current arbitration regime delegates significant coercive power to private parties and that the Supreme Court has construed the Federal Arbitration Act (FAA) so as to deny courts adequate authority to review arbitral proceedings and awards.
The result is a system in which private parties and their chosen arbitrators enjoy wide latitude to abuse delegated state power, violating important public values in the process. Yet proponents of the delegation critique tend to assume that civil procedure, in contrast to arbitration, vests state power largely with state officials and institutions.
In fact, this Article shows, civil procedure has already worked through its own delegation problem. Drawing on liberal political theory, this Article contends that broad delegations of state power are ubiquitous in ordinary civil litigation too. With these delegations comes the potential for abuse. Rather than limit private parties’ access to its delegations before any abuse has occurred, civil procedure primarily relies on a wide array of doctrines to police the delegations for abuse after the fact.
These delegation-policing doctrines enable the state to withhold or withdraw its support from exercises of delegated power that offend especially important public values. In revealing the extent of the delegations in ordinary civil litigation and examining civil procedure’s strategies for policing them, this Article develops a novel theoretical account of civil procedure. It then uses that account to show how we might adapt civil procedure’s delegation-policing doctrines for arbitration. Civil procedure, this Article suggests, already contains the necessary conceptual and normative resources to address many of the problems with the current arbitration regime.
The claim that ordinary civil litigation pervasively delegates state power conflicts with commonly held impressions of our civil justice system.
In fact, civil litigation is a public institution administered largely by private parties. It is public, of course, in that it proceeds under the auspices of state bodies (that is, courts), subject to the ultimate decisionmaking authority of state officials (that is, judges). At the same time, however, our civil justice system delegates significant coercive power to private parties. Private parties decide whether to hale others into court; they determine which documents to demand and whom to depose during discovery; and they often end up rendering binding dispositions of ongoing lawsuits by deciding whether to settle a case and on what terms.
Many times judges lack formal authority to preempt parties’ decisions on these matters. Even when judges do have such authority, their hands often remain tied, at least initially, as a practical matter.
In many other legal systems, state officials closely control the investigation and prosecution of civil cases.
So too in our own criminal justice system, the investigatory and prosecutorial functions are largely the province of state police officers and prosecutors. One of the hallmarks of our civil justice system, by contrast, is that it assigns these and other powers to private parties rather than state officials.
As public law scholars have recognized, delegating state power to private parties creates a risk that the power will be abused.
The same risk exists in civil litigation, though the abuse assumes a different form in civil procedure than it does in the public law contexts on which scholars have primarily focused. While civil procedure generally abides a significant amount of abuse in the name of “litigant autonomy” and other competing values, it sometimes deems an exercise of delegated power too objectionable to tolerate. This Article shows that numerous procedural doctrines traditionally regarded as unrelated to one another actually perform the same general function of policing civil procedure’s delegations for the most egregious forms of abuse.
Those doctrines perform this policing function using several different strategies, which can be arrayed along a spectrum according to how much they interfere with private parties’ exercise of delegated power. At one extreme, some doctrines rescind the delegation, putting state power back in the hands of state officials. Examples of this strategy include the appointment of special masters to oversee discovery, the direct involvement of judges in settlement negotiations, and sua sponte dismissals. Other, subject-matter-specific examples include the right of the federal government to intervene in qui tam actions under the False Claims Act.
At the other extreme, some doctrines punish only especially egregious abuses of delegated power after they have already occurred—either in the course of the litigation itself, as in the case of Rule 11 and discovery sanctions, or in collateral proceedings, as in the case of tort actions for malicious prosecution and abuse of process. In between are doctrines that leave the delegations intact but allow courts to withhold enforcement from specific exercises of delegated power that contravene public values. The foremost examples of this strategy are courts’ discretionary decisions refusing to compel discovery and quashing subpoenas, the constitutional ban on race-based peremptory challenges to prospective jurors in civil cases (so-called civil Batson),
and the line of procedural due process cases addressing State prejudgment attachment proceedings.
This Article’s first contribution, then, is to theorize civil procedure’s response to the problem of delegated state power in ordinary civil litigation. A second contribution is to explicate the normative logic underlying civil procedure’s delegation-policing doctrines. According to that logic, the delegation-policing doctrines perform a function that this Article calls “complicity avoidance.” The basic idea, immanent in the civil Batson case and other case law, is that when a private party abuses delegated state power, she thereby renders the state complicit in her wrongdoing; civil procedure’s delegation-policing doctrines allow the state to avoid this complicity by disavowing a particular exercise of delegated power that offends public values. The logic of complicity avoidance is rooted in liberal political theory, which undergirds the American constitutional order and its criteria for defining the legitimate exercise of political power.
Most versions of liberalism hold that the state’s coercive power is collectively authorized by the members of the political community and exercised in their name. This creates the imperative for the state, acting on behalf of the political community, to repudiate objectionable exercises of delegated power by private parties during civil litigation. On this account, liberal political theory provides a strong justification for the current shape of our civil justice system.
The theory of complicity avoidance also connects civil procedure’s delegation-policing doctrines to other, substantive legal doctrines that are similarly concerned with ensuring that public power does not end up facilitating objectionable private projects. The two foremost examples of the latter are Shelley v. Kraemer, which applied constitutional law’s state action doctrine to prohibit courts from enforcing racially restrictive covenants,
and contract law’s unconscionability doctrine, as reconceptualized by Seana Shiffrin.
This Article thus shows civil procedure’s delegation problem to be but one manifestation of a much more pervasive problem that is addressed through substantive doctrines elsewhere in the law.
In exploring civil procedure’s delegations and its various strategies for policing them, this Article develops an analytical framework that bears on several pressing procedural problems. But here the focus is on the implications for perhaps the most urgent one: arbitration. One of the Article’s main contentions is that the delegations in arbitration differ from the delegations in ordinary civil litigation in degree rather than kind.
And yet, many proponents of the delegation critique advocate policy proposals for arbitration that differ from civil procedure’s delegation-policing doctrines in kind rather than degree. They tend, in particular, to seek to restrict arbitration’s delegations, insisting either that courts deem broad categories of arbitration clauses unenforceable, so as to channel many more disputes into public venues,
or that arbitrators be required to employ court-like procedures, so as to conform to the procedural norms of public adjudication.
These are reasonable responses, especially given the gross power asymmetries that produce the most controversial arbitration clauses. Nonetheless, even if courts leave arbitration’s delegations largely intact, civil procedure’s delegation-policing doctrines suggest an alternative approach that could render those delegations less troubling—more akin to the delegations we have come to accept in ordinary civil litigation.
Rather than restrict access to arbitration’s delegations before any abuse has occurred, such an approach would focus on policing exercises of delegated power for abuse after the fact. More specifically, a delegation-policing approach would address the abuse of delegated state power in arbitration by subjecting arbitrators’ decisions to more searching judicial scrutiny. That scrutiny could take a number of different forms, including allowing interlocutory review of key procedural decisions by arbitrators, more frequently granting motions to vacate (or more frequently refusing to confirm) arbitral awards that issue from proceedings marred by especially serious procedural or substantive defects, and even sanctioning parties who seek to confirm such awards. While some of these proposals would require amending the FAA, others could be implemented through more faithful judicial interpretations of the statute than the Supreme Court has rendered. To be sure, even robust ex post policing mechanisms would not solve all of the problems with arbitration; ex ante regulation might still be necessary to address some of the very worst abuses, such as class-arbitration bans.
The point is that, even if arbitration clauses continue to be enforced more often than arbitration’s critics think legitimate, both arbitral proceedings and awards should be subject to greater judicial scrutiny than current doctrine permits.
Although other scholars have also called for this kind of enhanced judicial review, they typically present it as only one among many indiscriminate limits on arbitration.
What distinguishes a delegation-policing approach is that it sees ex post judicial review as a distinct strategy, one grounded in the same logic underlying the doctrines that respond to civil procedure’s own delegation problem.
The Article proceeds as follows. Part I makes the case for conceptualizing the exercise of various dispute-resolution functions by private parties in ordinary civil litigation as a delegation of state power. Part II then explains why civil procedure’s delegations need to be policed and examines the different procedural doctrines that fill that role. Those doctrines, Part III shows, perform a complicity-avoidance function analogous to that performed by various substantive doctrines—a function that cannot be understood in standard due process terms. Turning to the implications for debates about arbitration, Part IV identifies several ways in which the delegations in arbitration can be policed, even if not eliminated.
The Conclusion reflects on some of the Article’s methodological implications. It contends that civil procedure scholars tend to underestimate the extent of civil procedure’s delegations and to exaggerate the differences between arbitration and ordinary civil litigation because of the discipline’s overreliance on the procedural due process framework, which is concerned with the procedures of state institutions rather than the exercise of state power by private parties. Greater attention to liberal political theory and its account of political power can help us to conceptualize many of the problems presented by the privatization of civil justice and to uncover solutions latent in civil procedure doctrine itself.
I. Civil Procedure’s Delegations
In criticizing arbitration for “privatizing” or “outsourcing” dispute resolution, proponents of the delegation critique assume a traditional conception of ordinary civil litigation as being part of “a rigidly independent public legal system.”
There are many different senses in which our civil justice system might be considered “public.” But for purposes of the delegation critique (and hence this Article), the most important is that “[c]ourts are seen as . . . proceeding under a system not of their users’ personal design but fashioned by bodies of rule-makers committed to procedural neutrality and subjected to public scrutiny.”
Civil litigation, on this view, is public insofar as it is administered by state institutions—courts—that, in turn, proceed according to state-made rules.
This Part aims to complicate that picture of ordinary civil litigation. The traditional conception actually conflates two distinct issues. The first is the nature of the functions performed in the course of resolving private disputes.
On that issue this Article agrees with proponents of the delegation critique—and will argue in more detail in this Part—that binding “dispute-resolution services constitute an inherently governmental function,” and indeed “an aspect of sovereignty.”
The second issue is who actually performs the various dispute-resolution functions involved in ordinary civil litigation. Given the scholarly rhetoric extolling the “public” nature of our civil justice system, one might be tempted to think that those functions are performed exclusively by state officials and institutions.
Scholars have, however, long recognized that civil procedure puts various powers in the hands of private parties rather than judges.
This Part argues that many of these private exercises of power in ordinary civil litigation should be conceptualized as delegations of state power.
More specifically, this Part contends that the Federal Rules of Civil Procedure delegate state power to private parties in the following functional sense: At various points in the litigation, the Rules enable the parties to force the court to deploy coercive power for their own purposes. The Rules may technically interpose a state official in some of those instances, such that the parties cannot be said to formally wield coercive power, but the official nevertheless has little or no discretion to preempt the parties’ decisions, such that the parties effectively wield coercive power in the first instance.
Section I.A briefly elaborates this Article’s conception of a delegation of state power. Section I.B then examines three of the most notable delegations in civil procedure, while section I.C considers two general objections to conceptualizing any part of ordinary civil litigation as a delegation of state power.
A. Defining Delegation
To determine when the state delegates power to private parties, we can use either a narrow, formal conception of a delegation or a broader, functional one. On the formal conception, the state delegates power when it authorizes a private party to act on its behalf with respect to other private parties, as when the government contracts with a private entity to administer a public benefits program. This is the prevailing conception among public law scholars
—and for understandable reasons. For one thing, “delegation” is a loaded (and, at least in public law contexts, largely pejorative) term, so it makes sense to reserve that label for situations that are thought to raise the most serious concerns. For another, by cabining the category of delegations, we can avoid the sweeping implication that all power held by private parties is delegated state power, which would threaten to eliminate any distinction between state authority and private ordering.
The functional conception of a delegation, by contrast, does not look for an agency relationship between the state and a private party but rather focuses on who controls the application of coercive power as a practical matter, regardless of who holds it as a formal matter. On this view, a private party is delegated state power when she can prompt a state official or institution to coerce another private party without the official’s or institution’s first having an opportunity to assess the grounds on which the coercion is being exercised. Although the coercive power may formally be vested with the state rather than the private party, the private party alone determines its initial application, and so effectively holds the power in the first instance.
While we should appreciate the risks associated with expanding the notion of a delegation, it is nevertheless useful to conceptualize such privately initiated exercises of coercion as delegations of state power. Only by doing so can we make sense of the delegation critique of arbitration, which presupposes the broader conception of a delegation. As we shall see, the current arbitration regime does not formally authorize private parties’ chosen arbitrators to reach binding resolutions of private disputes; rather, it effectively renders arbitrators’ decisions binding by requiring courts to enforce them without any meaningful review.
Arbitration thus delegates (or “privatizes”) state power only in the functional sense.
The functional delegations, moreover, raise the same normative concerns as the formal ones. State power is distinguished by its coerciveness,
but the state can enable private parties to exercise coercion other than by formally making them its agents. That is perhaps no more true than in civil procedure. What makes the various dispute-resolution powers involved in civil litigation “inherently governmental” or “aspect[s] of sovereignty”
is the fact that they are binding—immediately backed by coercion.
As Part III explains more fully, liberal political theory has traditionally conceived of the state as possessing a monopoly on the legitimate use of coercion. And indeed, the next section shows that the coercive dispute-resolution powers in civil litigation are the kinds of powers that have traditionally been exercised by the state and that continue to be exercised by the state in other contexts. Yet the next section also identifies a number of significant points in civil litigation at which private parties initially determine the application of coercive power. These privately initiated exercises of coercion test the limits of the traditional liberal conception of the state just as much as formal conferrals of authority to act on the state’s behalf do, and thus equally merit the “delegation” label.
Some might worry that the functional conception of a delegation proves too much, implying that all de facto power held by one private party over another is delegated state power. While that might follow if the state delegated power simply by enforcing, or giving effect to, private parties’ choices, the functional conception of a delegation requires something more. When the state makes itself available to coercively enforce certain private choices, it generally retains broad discretion to set the terms on which it will provide that support; think, for instance, of the intricate legal regime governing the enforcement of private contracts.
The examples considered in this Article go much further: As the next section shows, the Federal Rules often effectively require courts to exercise coercive power at private parties’ behest, denying them any meaningful discretion to withhold that coercion, at least as an initial matter. One can recognize those instances as delegations without having to maintain that the state delegates power whenever it supports private ordering.
B. Delegated Procedural Powers
This section contends that three of the most significant aspects of ordinary civil litigation today—prosecution, discovery, and settlement—involve delegations of state power. At each of those stages, the Federal Rules effectively allow private parties to exercise coercive powers over others without prior judicial approval. There is a tendency, moreover, to deem those same powers “public” when exercised by state officials in other contexts; they remain public when exercised by private parties in the course of ordinary civil litigation.
1. Prosecution. — From the very outset of a lawsuit, the Federal Rules vest private parties with significant power. Rather than charge state officials with prosecuting civil claims or require victims to vet their claims with state institutions before filing suit, the Rules generally authorize “aggrieved victims of wrongs to enlist the adjudicative machinery of the state in seeking redress.”
Civil procedure scholars have, for the most part, failed to closely analyze the nature of the civil prosecutorial power,
but it has garnered more attention from proponents of the “civil recourse” theory of tort law. One of civil recourse theory’s main claims is that “[t]ort law . . . is about empowering private parties to initiate proceedings designed to hold tortfeasors accountable.”
Replace “tortfeasors” with “wrongdoers,” and this claim actually describes a power enjoyed by all potential civil plaintiffs, not just tort plaintiffs.
More precisely, Ori Herstein, a sympathetic critic of civil recourse theory, has explained that a civil plaintiff’s ability to initiate a lawsuit includes both (1) a Hohfeldian power to subject another private party to the judicial process and to the courts’ authority to alter the parties’ legal rights and (2) a Hohfeldian privilege to decide whether to exercise that power.
That combination means that private parties, rather than state officials, generally get to decide who will be subject to the courts’ authority to adjudicate civil claims.
The power to initiate a lawsuit, while significant, is not in itself coercive. But the Rules go a step further, backing that power with an additional, coercive power. Rule 4 provides: “On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant.”
This effectively grants plaintiffs the power not only to initiate the judicial process but also to hale their opponents into court. To be sure, given the role of the court clerk in issuing the summons, the latter power technically amounts to a Hohfeldian claim right on the part of the plaintiff to have the state exercise its power to hale people into court.
But that claim right is essentially absolute, for the clerk has no discretion to withhold the summons so long as the plaintiff’s complaint satisfies the necessary formalities.
In substance, then, if not in form, the Federal Rules assign the power to hale others into court to private parties rather than state officials.
That power is coercive.
Once the summons issues and the plaintiff properly attempts to serve it on the defendant, the defendant must enter an appearance in the action, on pain of default.
The Rules thus empower a plaintiff to order other parties to appear in court and then to compel the court to coercively enforce that order—all virtually on the plaintiff’s own say-so.
The effects of that coercion for the defendant can be significant, including the expense of hiring a lawyer and exposure to public scrutiny, as well as more formal legal consequences such as prejudgment attachment of property.
On the other hand, the coercion may be relatively ephemeral; a spurious complaint can be dismissed fairly quickly,
and even a default or default judgment can, in certain circumstances, be set aside.
The point is that the named defendant must generally appear before the court to get the complaint dismissed or the default or default judgment set aside, a burden imposed by the unilateral, unsupervised actions of the plaintiff.
A number of considerations confirm that the coercive power to hale others into court is a delegated state power. For one, we tend to associate the power to compel individuals to appear before state bodies with the state itself. That association is partly a product of history. Throughout much of the nineteenth century, American courts had discretion to review the substance of a plaintiff’s pleadings before issuing a summons.
One finds formal vestiges of this history in the Federal Rules: Though instigated at the plaintiff’s sole discretion, a summons issues in the name of the court. It is formally the court, not the plaintiff, that orders the defendant to appear.
And it is formally the court, not the plaintiff, that coercively enforces that order with a default judgment.
The Rules thus formally profess state authorship over the very same powers that they functionally put in the hands of private parties, one of the hallmarks of a delegation of state power.
For another, most agree on the public nature of the criminal prosecutorial power—the power to decide who must answer for alleged criminal conduct and to compel those individuals to appear in court.
While the criminal prosecutorial power may have more significant consequences for defendants than the civil prosecutorial power,
both ultimately reduce to the power to coercively hale people into court to answer for alleged wrongdoing.
One might resist this analogy on the ground that civil litigation typically redresses private wrongs, as opposed to the public wrongs redressed through the criminal law and certain regulatory-style civil actions. More specifically, even conceding that the state delegates power when it authorizes private parties to bring criminal prosecutions, as well as certain civil enforcement actions, in its stead, one might still deny that any delegation extends to ordinary lawsuits seeking to vindicate private law rights, such as tort and contract actions. Seth Davis’s “state action” theory of standing doctrine is a sophisticated example of this position. According to Davis, “[s]tanding involves a government power when it authorizes a litigant to act on a government’s behalf to vindicate a government interest.”
“Standing does not,” by contrast, “delegate the public power to enforce the law where it satisfies the government’s obligation to provide remedies to redress personal wrongs and to keep government accountable, even if the litigant’s action would vindicate a public right.”
It is important to emphasize that Davis focuses on only one aspect of the civil prosecutorial power. In using the term “standing,” Davis is referring simply to the right of a specific plaintiff to bring a specific claim against a specific defendant.
The notion of governmental authorization does indeed offer a plausible test for determining when the exercise of that right involves a delegation of state power.
But as we have seen, the right to initiate a lawsuit does not exhaust the civil prosecutorial power in the American civil justice system; the Federal Rules also effectively grant plaintiffs the power to hale defendants into court, on pain of default. This power, which Davis does not separately consider, is equally present even in cases Davis deems “private,” in which private parties are not authorized to vindicate a governmental interest. One need not maintain that “private standing and government standing are synonymous”
or “give short shrift to [standing’s] role in realizing rights to remedies”
to recognize that all civil cases involve this limited (though still significant) delegation, even if a narrower subset of civil cases involve an additional delegation of the power to enforce the law on the government’s behalf.
Davis appears to want to cabin the delegation involved in the civil prosecutorial power because he believes that any delegation of state power entails a duty on the part of the private party exercising the delegated power to subordinate her own private interests to public values.
Such a duty, Davis suggests, would be inappropriate in ordinary private law cases, in which plaintiffs should have wide latitude to pursue their own interests in seeking a remedy, without regard to public values.
Davis purports to derive this limitation from civil recourse theory,
yet civil recourse theorists themselves use the language of delegation to describe the civil prosecutorial power.
More to the point, as the next Part shows, civil procedure already requires plaintiffs to restrain their use of the civil prosecutorial power for the sake of certain public values, even when they are not authorized to act on the government’s behalf but are instead permitted to pursue their own interests. Unsurprisingly, these restrictions are significantly less demanding than the restrictions Davis would impose on plaintiffs standing in for the government as law enforcer; after all, the power to enforce the law is typically an even more solemn state power than the power to coercively hale people into court. But while the latter delegation may be less significant than the former, it remains a delegation nonetheless.
2. Discovery. — The Federal Rules do not cease delegating state power once the plaintiff has summoned the defendant to appear in court. On the contrary, the state continues to delegate significant coercive power to both parties throughout the most consequential stage of civil litigation: discovery. Civil procedure scholars have long recognized that discovery is carried out primarily by the parties and their lawyers rather than the court;
it makes sense to conceptualize this feature of civil litigation, too, as a delegation of state power.
The structure of that delegation mirrors the structure of the delegation involved in the civil prosecutorial power. Just as the Rules grant plaintiffs the power to order defendants to appear in court, so they grant both parties the power to order each other, as well as nonparties, to disclose information. As the Supreme Court observed less than a decade after the promulgation of the Rules, “[e]ither party may compel the other to disgorge whatever facts he has in his possession.”
What was then true only functionally became true formally in 1970, when Rule 34 was amended to eliminate the (oft-ignored) requirement of a court order for discovery requests; the amendment authorized a party to directly request from the other party any document or object within the scope of discovery specified in Rule 26.
One party can also demand that the other answer up to twenty-five interrogatories without a court order.
A party’s discovery powers extend over not only the other party but nonparties as well. Under Rule 45, a party can subpoena a nonparty to produce any discoverable documents or objects in her possession.
A party can also subpoena “any person” (including the other party) to “compel” her attendance at a deposition.
A subpoena technically issues in the name of the court but is drafted by the party or her lawyer and is signed either by the lawyer or the court clerk, who must leave the subpoena “otherwise in blank.”
At a deposition, a party can compel the deponent to answer any question that does not require the disclosure of privileged information, notwithstanding any objections (which are merely “noted on the record”).
Time and time again, the Federal Rules allow the parties to order others to disclose information without prior judicial approval.
As with the civil prosecutorial power, the Rules back the parties’ discovery powers with the coercive power of the state—and once again leave courts with little control over how that power is wielded in the first instance. If one party refuses to comply with another party’s discovery request, the party who made the request can move for a court order compelling disclosure on pain of sanctions.
This forces the resistant party to either oppose the motion or turn over the requested information; she cannot simply sit back and ignore the other party’s demands, lest she be sanctioned for noncompliance. The parties enjoy even more direct control over the state’s coercive power with respect to discovery involving nonparties. A subpoena issued by a party under Rule 45 (whether signed by the party’s lawyer or the clerk) is treated as an order of the court,
with noncompliance punishable as contempt.
Although a nonparty can move to quash a subpoena,
she must take that affirmative step or otherwise face coercive sanctions simply because of the issuing party’s unilateral actions.
We should be careful not to overstate the extent of the powers exercised by private parties during discovery. Those powers have undoubtedly waned since 1938, as “successive amendments to the Federal Rules ha[ve] impressed limits on the extent of discovery.”
Rule 26, for instance, was amended in 2015 to prohibit discovery that is not “proportional to the needs of the case.”
Notwithstanding the increasing limits on discovery, however, it remains the case that parties still enjoy significant power to compel others to produce information without much judicial involvement.
Indeed, “from a comparative perspective [the discovery power in American civil litigation] is broader and deeper than the powers exercised by private lawyers in any other legal system.”
While private parties’ discovery powers may have been curbed, they have not been eliminated.
But why understand these powers as delegated state powers? Perhaps as much as any other civil procedure scholar, Stephen Yeazell has pointed toward an answer, and his account is worth quoting at length:
Discovery empowers litigants. In a civil law system litigants can only attempt to persuade a judge to seek information from the parties or others. American law, on the other hand, allows the litigants to demand information and testimony and backs those demands with legal sanctions. From such a comparative standpoint, the power delegated to ordinary litigants by the American discovery system is astounding. Ordinary civil litigants receive state sanction to require documents, depose witnesses under oath, and more. The penalties for noncompliance are substantial, including not only consequences to a litigant within the lawsuit, but also extending to possible imprisonment or fines of non-party witness[es] who fail to comply. We have put in the hands of civil litigants powers that in many legal systems only state officials enjoy.
To wit, in most other Western liberal democracies, judges exercise the very same discovery powers that private parties exercise in our civil justice system.
There is also a long history, extending well into the nineteenth century, of judicially conducted, inquisitorial-style discovery in American courts of equity, a practice that formed the basis for the party-conducted discovery authorized by the Federal Rules.
This all suggests an association between discovery powers and the state—an association that still has some resonance in our civil justice system, if one is to judge from all of the formal markers of state authority that pervade the discovery rules, such as the fact that an “attorney acts as an officer of the court in issuing and signing subpoenas.”
Even within the contemporary American legal system, state officials and institutions—most notably, police officers
and administrative agencies
—exercise investigatory powers that are functionally indistinguishable from the discovery powers exercised by private parties in civil litigation.
The investigatory powers are considered public in those contexts not just because they are wielded by state agents but because they function as necessary adjuncts of an unquestionably public power: the power to enforce the law. Yet, as we have seen, private parties generally exercise the (coercive aspect of the) state’s law-enforcement power in our civil justice system.
Given the close relationship between discovery powers and the power to enforce the law, it makes sense to view the former as a state power too.
Finally, the Federal Rules themselves implicitly underscore the public nature of the discovery powers exercised by private parties during civil litigation. In addition to authorizing the parties to compel each other to disclose information, the Rules establish a limited number of mandatory “initial disclosures”—certain categories of information that the parties must reveal to each other, independent of any request.
This highlights the fact that the state can choose either to directly compel the disclosure of information itself or to grant that power to private parties. When the state makes the latter choice, as it does for most discovery matters, it seems difficult to describe that as anything other than a delegation of state power.
3. Settlement. — The case for conceptualizing the settlement of an ongoing lawsuit as a delegation of state power seems fairly straightforward. With few exceptions, the court plays virtually no role in the settlement of a civil case; the parties may “generally elect to settle disputes and to choose their settlement terms without judicial oversight or interference.”
Yet settlements bind the parties, and it is commonly thought that the power to reach a binding resolution of a private dispute is a paradigmatic state power.
One might think that, in contrast to haling a person into court or compelling her to disclose information, settling a case is too far removed from state-sanctioned coercion to involve the exercise of state power. This impression is bolstered by the default procedure for dismissing a settled lawsuit in federal court. After the parties privately agree to settle the case, the plaintiff voluntarily dismisses the action by filing either a notice of dismissal (if before the defendant’s answer or summary judgment motion) or a stipulation of dismissal signed by all the parties (if later)—but either way, without having to obtain a court order.
Given this procedure, “settlements do not implicate the judiciary’s judgment” as to either liability or remedy.
The state in no way lends its imprimatur to the parties’ resolution of the dispute but rather acts as if the lawsuit had never been filed. Formally, then, most settlement agreements look like any other private contract, and unless we are willing to completely jettison the public–private distinction,
merely forming a voluntary agreement does not involve the exercise of a delegated state power.
Notwithstanding the dismissal procedure laid out in the Rules, however, courts often issue an order dismissing a settled case and incorporate the parties’ settlement agreement into the order—without necessarily having supervised the negotiation of the agreement or approved its terms.
This practice transmutes the parties’ private resolution of their dispute into a formal court order subject to ongoing coercive enforcement by the state, while forgoing the judicial scrutiny that typically precedes such an order. In this respect, settlements that are incorporated into a court order are difficult to distinguish from the delegations of state power involved in a summons or party-issued subpoena.
Even settlements that are not memorialized in a court order generally end up functioning in practice much more like formal judgments than ordinary contracts. A prevailing plaintiff usually enforces a court judgment against a recalcitrant defendant through separate procedures that leave state officials with little discretion to withhold relief.
A violated settlement agreement, by contrast, is usually enforced through a separate State law action for breach of contract.
So far, court judgments and settlement agreements seem to inhabit completely different remedial worlds. But the contract law principles that govern the enforcement of settlement agreements can diverge from those that govern the enforcement of ordinary contracts in crucial respects. Compared with ordinary contracts, settlement agreements require an especially “strong showing” of invalidity
and are more difficult to rescind.
Their terms are also construed more liberally.
And as with a court judgment, a “court will not inquire into the merits or validity of the original claim” when enforcing a settlement agreement.
Some jurisdictions even go so far as to formally treat settlement agreements as court judgments, according them the same preclusive effect.
These and other departures from general contract principles leave courts with significantly less discretion to refuse to coercively enforce settlement agreements, versus ordinary contracts—much as state officials have little discretion to refuse to coercively enforce court judgments. Yet in the case of settlement, it is the parties themselves, not state officials, who have authoritatively resolved their dispute.
Other kinds of settlement practices grant private parties even more direct control over the state’s coercive power. For example, under Rule 68, a defendant can make an “offer of judgment” to the plaintiff.
If the plaintiff accepts the offer, “[t]he clerk must then enter judgment”; if the plaintiff refuses and ends up securing a judgment no more favorable than the spurned offer, then she is liable to the defendant for “the costs incurred after the offer was made.”
This constitutes a kind of contingent delegation to the defendant: Simply by making a settlement offer during the litigation, a defendant can force the court either to enter a binding judgment (in the event the offer is accepted) or to sanction the plaintiff (in the event the offer is rejected and the plaintiff’s actual award does not exceed the offer). Either way, the defendant is compelling the court to deploy the state’s coercive power without any opportunity for the court to evaluate the basis on which it is being deployed.
C. Doubting Delegation
At various points, the previous section addressed a number of specific objections to conceiving of civil procedure’s prosecution, discovery, and settlement powers as delegated state powers. This section briefly considers two additional, more thoroughgoing objections: (1) that private parties are formally “subordinate” to courts and (2) that “managerial judges” oversee parties’ litigation conduct to such an extent that none of that conduct can constitute a private exercise of delegated state power.
1. Party Subordinance. — Even assuming that the powers discussed in the previous section are public, one still might question whether the Rules really allow private parties to exercise those powers in ordinary civil litigation—whether, that is, the powers are actually delegated. Scott Dodson’s elaboration of what he calls the “party subordinance” thesis suggests a particularly potent challenge along these lines. According to that thesis, “parties’ attempts to alter otherwise applicable procedures . . . are wholly unenforceable absent some legal authorization for judicial enforcement. And even when the law allows parties to exercise litigation choices, courts retain largely unfettered discretion—cabined only by law—to disregard or override those choices.”
Dodson does not consider in any significant detail the specific contexts addressed in the previous section—prosecution, discovery, and settlement
—but his account nonetheless suggests that, even in those contexts, we should view courts, rather than litigants, as exercising ultimate control over the state’s coercive power.
Dodson’s party-subordinance thesis purports to describe the formal rules governing civil litigation,
but it is difficult to justify this exclusively formal focus. Surely what matters is who controls the state’s coercive power as a practical matter, not who bears nominal responsibility for its exercise.
And as the previous section showed, the rules governing prosecution, discovery, and settlement functionally “empower or allow party dominance” while denying courts “discretion to override lawful party choices” with respect to the initial exercise of coercive power
—in contrast to the impression the party-subordinance thesis might create.
Nor does the existence of even substantial judicial discretion necessarily preclude a delegation of state power. After all, public law scholars conceptualize the “privatization” of various governmental programs as a delegation of state power even though administrative agencies must formally authorize private entities to administer the programs and retain discretion to override their decisions, which are also often subject to judicial review.
That is presumably because, notwithstanding the government’s supervisory authority, private parties are still exercising state power in the first instance and thus can potentially cause serious harm before the government has a chance to intervene. Private parties likewise exercise multiple state powers in the first instance during ordinary civil litigation. While we may think that the prospect of judicial intervention serves as an adequate check on any potential abuse of those powers, the risk of abuse still exists. The delegation framework developed in the previous section calls attention to such concerns, whereas a narrow focus on private parties’ formal “subordinance” to courts tends to occlude them.
2. Managerial Judges. — Another objection is more practical than conceptual. This Part has argued that parties enjoy wide latitude in exercising various coercive powers during civil litigation, often with no meaningful judicial involvement. But many will no doubt dispute this depiction of judges as relatively passive bystanders. According to a popular critique of contemporary federal civil practice, the demise of the civil trial has not diminished the judicial role so much as transformed it. Rather than adjudicate cases, judges now perform a more “managerial” function, shepherding cases and litigants through the pretrial phase.
This judicial management takes a number of different forms, exemplified for critics by the (discretionary) Rule 16 pretrial conference, during which the judge can structure the discovery process and pretrial motions practice.
While judicial management does not extend to the prosecution of a case—plaintiffs still decide which claims to press and whom to name as defendants—it has fundamentally reshaped discovery and settlement; what were once largely private, consensual processes now often unfold under the court’s watchful eye.
One might think, therefore, that courts retain too much control over the state’s coercive powers during civil litigation for those powers to be delegated to the parties.
It is hard to quarrel with this picture of the “managerial judge” as a descriptive matter, but it is important to distinguish two different ideas that often go under the heading “judicial management,” each of which has different implications for the delegation thesis advanced in the previous section. First, there is management as housekeeping—administrative measures that help to ensure the orderly progression of the pretrial process. For discovery, judges can set schedules for making various disclosures and raising various objections.
As for settlement, because judges generally have no say in the content of settlement agreements,
they are largely relegated to encouraging the parties to settle and facilitating negotiations between them.
None of these forms of judicial involvement significantly curtails the parties’ discretion in exercising coercive powers; the parties can still largely compel whatever discovery, or settle on whatever terms, they would like. At least the “housekeeping” aspect of the “managerial judges” thesis, then, is compatible with conceptualizing the parties’ discovery and settlement powers as delegations of state power.
Second, there is management as supervision—judicial scrutiny of, and interference with, the parties’ exercise of power during discovery and settlement. Although judges generally do not set strict limits on the scope of discovery,
they sometimes do, especially in complex cases.
Likewise, judges in some cases go beyond simply encouraging settlement and actively participate in negotiations, even advocating specific settlement terms.
Again, these practices, while not uncommon, are not the norm; notwithstanding the fact that some judges “are vigorously presiding, sometimes as managers, sometimes as judges,” it is still the case that “lawyers’ procedural choices will draw only sporadic judicial scrutiny.”
The default in ordinary civil litigation thus remains a regime of party-driven discovery and settlement, with only the prospect of more significant judicial involvement lurking in the background. And even that involvement does not eliminate the delegations described in the previous section. Rather, as the next Part argues, we should understand “managerial judging,” in its more supervisory guises, as a set of strategies for policing civil procedure’s delegations when private parties abuse delegated state power.
II. Policing Civil Procedure’s Delegations
This Part shows that civil procedure, even as it pervasively delegates coercive state power to private parties, also contains numerous doctrines that enable courts to police its delegations for abuse. Public law scholars have long recognized the potential for delegations of state power to be abused and the corresponding need for the state to police them. As section II.A argues, civil procedure’s delegations are no less prone to abuse, though the abuse assumes a different form in civil litigation than in the public law contexts on which scholars have primarily focused.
Section II.B then collects and classifies myriad procedural doctrines that allow courts to police private parties’ exercises of delegated state power during ordinary civil litigation. The doctrines fall into three main categories: those that rescind a delegated power, those that withhold enforcement from an exercise of delegated power, and those that punish abuse of delegated power. Whereas other scholars have tended to treat these various doctrines as unrelated to one another, this Part aims to show that they perform the common function of allowing the state to distance itself from private exercises of delegated power that offend especially important public values.
A. Abusing Delegated Procedural Powers
Recall the structure of civil procedure’s delegation problem: At various points during ordinary civil litigation, the Federal Rules effectively grant private parties the power to coerce others but without requiring prior judicial approval for those exercises of coercion. That creates a significant risk that the state’s coercive power will be abused—we have learned as much from the extensive literature on the “privatization” of many of the government’s administrative functions.
But just as the delegations at issue in public law contexts differ from civil procedure’s delegations in important respects, so we need a different conception of abuse of state power to understand the unique risks posed by the delegations in ordinary civil litigation.
Public law’s conception of abuse of delegated state power begins from what Gillian Metzger has called “the principle of constitutional accountability.”
According to that principle, “the Constitution imposes limits on the actions that governments can take,” limits that “apply to all exercises of government power, whether wielded by officially public or nominally private entities.”
Any conception of abuse of delegated state power in civil litigation should start from the same general principle. But public law scholars have cashed out the notion of “accountability” in ways that do not capture the concerns raised by civil procedure’s delegations of state power.
Consider again Seth Davis’s conception of a delegation as authorization to act on the government’s behalf.
From that conception, Davis derives a notion of accountability according to which “the Constitution requires all government action to be justified by reference to some public value.”
A private party, on this view, must affirmatively pursue some public-regarding purpose when exercising delegated state power for the delegation to be legitimate; if she instead employs the power to some private end, she violates constitutional norms and abuses the delegation.
That conception of accountability (and abuse) makes sense insofar as the government has authorized private parties to act on its behalf. But as we have seen, the government can delegate state power to private parties without necessarily making them its agents or forbidding them to pursue their own interests.
Sometimes, the government grants private parties power not so they can directly pursue public objectives in its stead but so they can more effectively pursue private ends that society deems valuable.
These private exercises of power are nevertheless delegations because of the nature of the power private parties wield—in the context of civil litigation, the power to coerce others to take actions in relation to the binding resolution of private disputes.
This different conception of delegation calls for different conceptions of accountability and abuse. When a private party is delegated state power but is not required to affirmatively pursue some public purpose, she remains accountable by not offending certain norms governing the exercise of state power in the course of pursuing her private ends. Conversely, a private party abuses delegated state power when she violates those norms. The worry in civil procedure is not that private parties will fail to further public goals—they generally are not required to do so—but that they will “commandeer the judicial process” and “force a publicly subsidized court to sacrifice public benefits for purely private interests.”
The risk is one of harm to public values rather than neglect of public duties.
Thus articulated, this account of abuse of civil procedure’s delegations remains largely formal rather than substantive. It identifies the normative structure of the abuse as the violation of important public values, without elaborating on the specific content of those values. It is beyond the scope of this Article to provide a comprehensive account of the public values whose violation constitutes an abuse of delegated state power,
but those values have many sources. One is the Federal Rules themselves. The notion that the Rules are value-free
has long since been debunked; as scholars have recognized, the Rules embody a number of important values, including justice, accuracy, transparency, and efficiency.
Beyond the Rules, substantive law reflects other fundamental normative commitments of our society, such as nondiscrimination. These and other values are, to varying degrees, implicated in private parties’ exercise of delegated state power during civil litigation.
Many procedural rules and doctrines seek to safeguard these values by requiring courts to honor them in the course of adjudicating disputes. Thus, courts must follow certain procedures before rendering decisions, judges may not discriminate against parties based on race, court proceedings must generally be open to the public, and so on. But because private parties also wield state power during civil litigation, they, too, can violate the norms governing the exercise of that power. Hence the need for delegation-policing doctrines—doctrines that allow the state to specifically address exercises of delegated state power that offend especially important public values.
B. Civil Procedure’s Delegation-Policing Doctrines
Civil procedure generally affords private parties wide leeway to exercise delegated state power during civil litigation. Rather than hold private parties to the same standards that govern courts and other public institutions, civil procedure brooks a significant amount of abuse of delegated state power as one of the costs of having an adversarial, as opposed to inquisitorial, system.
There comes a point, however, at which civil procedure deems private parties’ abuse of delegated power too egregious to tolerate and allows the state to counteract that abuse in various ways. This section examines multiple doctrines that police the outer limits of private parties’ discretion to wield delegated state power during civil litigation.
At the outset, it is useful to distinguish doctrines that incidentally prevent abuse of delegated state power by limiting parties’ opportunities to exercise it. One particularly controversial example is pleading. By tightening the general pleading standard under Rule 8 of the Federal Rules,
the Supreme Court attempted to make it more difficult for complaints to survive a motion to dismiss, thereby restricting plaintiffs’ access to discovery—and thus their opportunities to abuse their discovery-related powers.
A number of subject-matter-specific rules and statutes impose similar limits on how plaintiffs may prosecute certain kinds of claims.
Such doctrines do not directly regulate the grounds on which parties may exercise the powers delegated to them during civil litigation but rather seek to reduce the overall costs of litigation by restricting parties’ access to those powers. The doctrines nonetheless have the effect of limiting parties’ opportunities to exercise—and thus to abuse—delegated powers. One can therefore understand the doctrines as embodying a kind of prophylactic strategy for reducing the risk of abuse of delegated state power before it has occurred.
That kind of strategy has significant shortcomings. Most notably, the state faces considerable decision costs in trying to anticipate and forestall every potential form of abuse of civil procedure’s delegated powers. Any rule that seeks to restrict access to those powers will consequently be overbroad, which can undermine other values, such as access to justice.
At the same time, even overbroad rules will let some instances of abuse slip by, putting the state in the untenable position of having to tolerate even egregious forms of abuse.
Perhaps because of such drawbacks, civil procedure does not primarily rely on this ex ante strategy of limiting access to delegated state power. Rather, it generally affords private parties broad access to its delegations
and then employs an alternative, ex post strategy whereby the state reviews a party’s exercise of delegated power for its conformity with public values and, if the abuse is too much to bear, interferes with or disavows the private party’s actions, making clear that her abuse of state power cannot stand unchallenged.
Civil procedure is replete with doctrines that perform precisely this delegation-policing function.
Before this section turns to those doctrines, two caveats are in order. First, this Article makes no claim about the origins of civil procedure’s delegation-policing doctrines. It argues only that various procedural doctrines currently enable courts to police civil procedure’s delegations for abuse, whether or not they were intentionally developed for that purpose.
Second, to classify the doctrines considered in this section as delegation-policing doctrines is not necessarily to defend them against those who might consider them an inadequate response to the various forms of abuse that can occur during civil litigation. Indeed, civil procedure does not police its delegations consistently but instead tends to address only the most egregious forms of abuse of certain delegations, while ignoring the abuse of other delegations altogether.
That said, civil procedure’s delegation-policing efforts, however imperfect, address a significant amount of abuse of delegated state power in ordinary civil litigation—especially when compared with the permissiveness of the current arbitration regime.
Civil procedure’s delegation-policing doctrines can be classified into three main categories, according to how intrusively they interfere with private parties’ exercise of delegated state power. The following typology is not necessarily comprehensive, nor are the boundaries separating its different categories perfectly clean. The point is to identify the most prominent types of delegation-policing strategies in civil procedure.
1. Rescinding Delegations. — The most intrusive delegation-policing doctrines effectively rescind a delegation when it is being abused, and then either reassign responsibility for exercising the delegated state power at issue to a state official or, in extreme cases, deny the private party responsible for the abuse all further access to that power. Among the rescissory doctrines that substitute a state official for the parties are some of the practices that civil procedure scholars have dubbed “managerial judging.”
For example, the Federal Rules permit courts to limit the scope of discovery beyond Rule 26’s capacious relevance standard.
A court can, of course, exercise this discretion for many different reasons, including simply to save time and expense. But at least when a court limits discovery in response to the parties’ abusive discovery practices, one can understand the court’s action as (partially) rescinding the parties’ power to decide what discovery to compel and lodging that power back with a state official—namely, the judge.
The effect is similar when a court appoints a special master to oversee discovery.
Such oversight can be quite extensive, including supervising depositions,
during which the Rules otherwise give the parties free rein. While courts will often appoint a discovery master for reasons of efficiency, such as handling complex technical issues involved in electronic discovery,
they sometimes also use special masters to curb discovery abuse. In such cases, the court rescinds some of the coercive discovery powers delegated by the Rules, transferring the parties’ discretion for exercising those powers to a state official.
Courts can also effectively retract the parties’ power to reach a binding resolution of their dispute through a settlement agreement. Recall that judges generally have no say over settlements; with few exceptions, the parties can settle their dispute on whatever terms they’d like without the court’s approval.
In practice, however, some judges go beyond merely encouraging settlement and facilitating negotiations and shape the actual substance of a settlement agreement.
Although the parties formally retain control (it is the parties, after all, who decide whether to stipulate to a dismissal), in some cases the court can exert such influence that it assumes a kind of adjudicatory authority as a practical matter. Insofar as the court exercises that de facto authority to resist what it regards as unfair or otherwise abusive settlement terms, it partially rescinds the parties’ power to authoritatively resolve their dispute themselves.
Many civil procedure scholars—including many of the proponents of the delegation critique—criticize this kind of judicial involvement in settlement negotiations for, among other things, potentially pressuring weaker parties to relinquish their right to their day in court.
That is a legitimate concern, but viewing such involvement as a delegation-policing strategy shows it to be much less pernicious, and even salutary. Given that most parties are going to settle with or without the court’s approval, we should welcome judicial involvement in ordinary settlements as a way for the state to reassert control over its coercive adjudicatory power when that power stands to be abused by the private parties to whom it has been delegated.
Beyond these transsubstantive delegation-rescinding strategies, various subject-matter-specific procedural rules can similarly be understood as ways of reasserting state control over delegated powers, particularly the prosecutorial power, in cases of abuse. Consider the provision of the False Claims Act (FCA) that allows the federal government to intervene in and take over the prosecution of a qui tam action.
At first glance, that provision seems to simply reflect the fact that, in a qui tam action, the federal government is the real party in interest, while the private relator is a mere stand-in seeking to vindicate the government’s interests. Given this structure, the FCA’s intervention provision appears to allow the government to prosecute fraud directly in cases in which private enforcement proves inadequate. And that is indeed the provision’s primary purpose, but not its sole one. The FCA makes clear that the government does not automatically displace the relator when it intervenes; the relator retains a (minimal) stake even after the government has intervened and taken over the action.
The statute further recognizes that the relator’s stake includes a degree of prosecutorial control over the action and that the relator can abuse that control by exercising it for improper purposes. Most notably, the statute authorizes the court to limit, at the government’s request, the relator’s participation in the action in various ways—not just to avoid unnecessary expense and promote efficiency but also when the relator is acting for “purposes of harassment.”
This suggests another (if secondary) purpose served by government intervention in qui tam actions: reclaiming the delegated prosecutorial power for state officials in cases of abuse.
Each of the foregoing delegation-policing strategies rescinds the delegated power at issue and substitutes a state official for the private party who abused that power. But the state can also rescind a delegation without substitution, terminating the party’s action rather than allowing the action to continue under government supervision. For example, federal courts may dismiss a complaint sua sponte, without waiting for the defendant to appear and file a motion to dismiss under Federal Rule of Civil Procedure 12—though only when the claims are patently frivolous and only after affording the plaintiff certain procedural protections, such as notice, an opportunity to be heard, and leave to amend her complaint.
A sua sponte dismissal effectively rescinds the delegated power to coercively hale others into court, thereby preempting a plaintiff’s (perceived) abuse of that power before she has managed to inflict any serious harm.
Similarly, but more controversially, the Prison Litigation Reform Act authorizes federal courts to dismiss sua sponte an action brought by a prisoner challenging prison conditions if the action, among other things, “is frivolous, malicious, [or] fails to state a claim upon which relief can be granted.”
What is more, under the so-called three-strikes rule, a prisoner generally may not be granted in forma pauperis status if, on three or more prior occasions, he filed an action or appeal that was dismissed on any of those grounds.
Given the limited financial resources of most prisoners, that is typically tantamount to permanently revoking a prisoner’s power to prosecute claims in federal court. One need not countenance the application of this rule to prisoner litigation in particular in order to recognize it as an example of a more general strategy that, along with other rescissory doctrines, allows the state to respond to ongoing abuse of delegated procedural powers.
2. Withholding Enforcement. — Of course, rescinding a delegated state power works as a delegation-policing strategy only insofar as a private party’s abuse of that power is not yet complete. It does little good to rescind the summonsing power after the plaintiff has haled the defendant into court, or the subpoena power after a party has issued a subpoena, or the settlement power after the parties have stipulated to a dismissal. In each of those cases, one private party has already exercised the state’s coercive power over another. So rather than seek to undo that exercise of coercion (which is impossible), the state must try to limit its effects. A number of doctrines aim to do exactly that by allowing the state to avoid facilitating, or giving further effect to, an abusive exercise of delegated power.
Unsurprisingly, this strategy does not figure prominently in the prosecution context. Because a summons issues automatically once the plaintiff presents it to the court clerk,
the state cannot refuse to enforce the plaintiff’s exercise of the summonsing power; it has little opportunity to spare the defendant from having to appear and answer the complaint, on pain of default. The best the state can do in most cases is to dismiss the complaint after the defendant has appeared and thereby deny the plaintiff access to additional state powers, particularly those relating to discovery.
The state can, by contrast, more effectively avoid facilitating a party’s abuse of the various discovery powers. If a party makes an abusive discovery request and, after the other party refuses, moves to compel,
the court cannot undo the coercion the moving party has already exercised. It can, however, limit the effects of that coercion by denying the motion to compel. The opposing party still must affirmatively resist the request and oppose the motion (or preemptively move for a protective order before the motion has been filed), but at least she won’t have to actually turn over the requested information. The same is true when a court grants a motion to quash a subpoena.
By refusing in each case to lend the state’s support to a party’s abusive exercise of delegated coercive power during discovery, the court avoids compounding the abuse.
While one finds examples of this delegation-policing strategy at the core of the Federal Rules, it is even more prominent in other parts of the procedure canon. Perhaps the clearest example is Edmonson v. Leesville Concrete Co., in which the Supreme Court extended the constitutional ban on race-based peremptory challenges in the selection of criminal juries to civil cases
—so-called civil Batson.
Because the constitutional guarantee of equal protection applies only to “state action,”
the key issue in Edmonson was whether a private litigant (or her lawyer) could be considered a state actor in exercising peremptory challenges against prospective jurors. The Court applied a two-pronged test to resolve that question and found the first prong—whether a peremptory challenge is “a right or privilege having its source in state authority”
—to be easily met, given that peremptory challenges are available only insofar as the government chooses to authorize them.
As for the second prong—“whether a private litigant in all fairness must be deemed a government actor in the use of peremptory challenges”—the Court considered the extent to which the peremptory challenge is imbued with public authority.
Peremptory challenges, the Court noted, depend on “the overt, significant participation of the government,” from the government’s general administration of the jury system to the court’s involvement in voir dire.
But more relevant for this Article’s argument, the Court also emphasized that litigants exercise peremptory challenges in the course of discharging “a traditional function of the government”: selecting the members of the jury, a governmental body.
The peremptory challenge, in other words, is one aspect of a “delegated” state power.
And the Court clearly saw litigants as abusing that delegation when they exercise peremptory challenges in a racially discriminatory manner.
The Court’s refusal to enforce race-based peremptory challenges can accordingly be seen as a delegation-policing strategy akin to the strategy available to courts under the discovery rules. Like a discovery request, a peremptory challenge ultimately depends on court enforcement to be fully effective.
As the Court put it in Edmonson, in exercising a peremptory challenge, a litigant “invokes the formal authority of the court, which must discharge the prospective juror.”
Edmonson retained the baseline rule that courts will automatically discharge a prospective juror in response to a peremptory challenge, thus preserving the delegation of state power involved in such challenges. But the decision also created room for courts to withhold the state’s support from abusive exercises of that delegated power by refusing to discharge a prospective juror in response to a race-based peremptory challenge. Although the state cannot undo the harm inherent in a discriminatory peremptory challenge, it can avoid facilitating that discrimination and thereby limit the extent of a party’s abuse of delegated state power.
A similar delegation-policing strategy emerges from a series of Supreme Court decisions over the latter third of the twentieth century concerning the constitutionality of State prejudgment attachment and replevin statutes. In those decisions, the Court repeatedly invalidated laws that allowed a creditor–plaintiff to invoke state assistance in seizing property possessed by the debtor–defendant based on the plaintiff’s conclusory assertion of an interest in the property.
Although the formal legal question in each case was whether the lack of an adversarial predeprivation hearing violated procedural due process,
the Court could not straightforwardly apply its standard due process analysis, since the government had not initiated the seizure. The Court instead had to consider the permissibility of “enabling an individual to enlist the aid of the State to deprive another of his or her property by means of the prejudgment attachment or similar procedure.”
This was essentially a question of the propriety of delegating state power.
More specifically, each of the statutes invalidated by the Court resembled the delegations considered in Part I, in that a private party could get the state to deploy its coercive power for her own purposes more or less on her own say-so and without meaningful judicial review. As the Court explained in one of the decisions, “[t]he statutes . . . abdicate effective state control over state power. Private parties, serving their own private advantage, may unilaterally invoke state power to replevy goods from another.”
This structure mirrors that of the delegations involved in a summons or discovery subpoena.
In all but one of the cases in which the Court found a delegation of state power, it deemed the delegation impermissible and invalidated the statute at issue because the State had failed to maintain adequate control over its coercive power.
Those decisions can thus be understood as prohibiting delegations of state power when there were insufficient checks on how private parties exercised that power.
The Court instead pursued a delegation-policing strategy in the one decision in which it both found state action under a repossession statute and upheld the statute as consistent with due process. In Mitchell v. W.T. Grant Co., the Court sustained a Louisiana statute that allowed a creditor, on ex parte application to a judge, to provisionally sequester personal property held by the debtor subject to a vendor’s lien.
The Court distinguished its prior decisions invalidating similar statutes on multiple grounds but emphasized in particular that the predeprivation hearing, though ex parte, was before a judge rather than a court clerk or other ministerial official, and that the creditor had to submit a sworn affidavit setting out the specific factual allegations entitling her to possession of the property.
Notwithstanding these differences, it still makes sense to view the Louisiana statute as delegating state power. After all, the predeprivation judicial review provided by the statute, while perhaps more than “a mere ministerial act,”
did not amount to that much more. “Since the procedure . . . is completely ex parte,” Justice Stewart explained in dissent, the judge “can do little more than determine the formal sufficiency of the plaintiff’s allegations before ordering the state agents to take the goods from the defendant’s possession.”
The provision for judicial review thus did not eliminate the delegation conferred by the other parts of the statute; the baseline remained virtually automatic enforcement of a creditor’s sequestration request. And yet, the statute did allow the state to police that delegation to some degree, by refusing to lend its support to patently abusive sequestration requests. That limited opportunity for the state to withhold enforcement may well have been insufficient to address all or even most abuse, but it is nevertheless an example of a kind of delegation-policing strategy employed in other parts of civil procedure.
3. Punishing Abuse. — Besides rescinding a delegation of state power when it is being abused or withholding enforcement to limit the effects of the abuse, the state can punish the private party who commits the abuse with various sanctions after the fact. This delegation-policing strategy tends to be less intrusive than the first two, as it does not attempt to actually interfere with private parties’ exercise of delegated state power; parties can still exercise the delegated power as they will, though they must suffer the consequences for any abuse they perpetrate. Nor, of course, can sanctions undo the abuse.
Yet they do allow the state to disavow an abusive exercise of delegated state power by expressing condemnation of the private party’s conduct.
The paradigmatic example of this delegation-policing strategy is Rule 11 of the Federal Rules. Rule 11 authorizes courts to impose sanctions on a party or her lawyer for, among other things, “presenting” a written submission “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”
To be sure, “presenting” written submissions to the court encompasses a broad swath of litigation conduct, including routine adversarial actions that in no way involve an exercise of delegated state power. A party does not, for instance, exercise delegated state power by filing a motion for a preliminary injunction or for summary judgment. Filing a written submission does, however, frequently involve an exercise of delegated state power—most notably, when a plaintiff files a complaint and thereby triggers the issuance of a summons.
In punishing parties for taking such actions for an “improper purpose,” Rule 11 reflects the conception of abuse of delegated state power developed in the previous section. Rule 11, like the rest of civil procedure, grants private parties significant latitude to use delegated state power to pursue private ends; a private purpose is not necessarily an “improper purpose,” and so does not necessarily render an exercise of delegated state power abusive. At the same time, however, private parties must observe certain public norms in wielding state power, and Rule 11 imposes liability for offending those norms. This allows the state to repudiate, if not reverse, private parties’ abusive exercises of delegated state power.
Especially when it’s too late to rescind the delegation or withhold enforcement, punishing abuse may be the only practical way for the state to maintain a degree of accountability for the procedural powers it has delegated to private parties.
Civil procedure employs similarly punitive delegation-policing strategies throughout civil litigation. While Rule 11 expressly does not apply to discovery,
Rule 26 authorizes courts to sanction a party for any discovery request that is “interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”
And pursuant to their inherent powers, federal courts may order a party to pay the other side’s attorney’s fees as a sanction for “bad-faith” litigation conduct.
At least where these sanctions are imposed in connection with an exercise of delegated state power, they constitute an important delegation-policing strategy.
The state can sanction abusive exercises of delegated state power not only during the litigation but also through collateral proceedings. Foremost among the collateral mechanisms are the tort law causes of action for malicious prosecution and abuse of process. Like Rule 11, these torts embody the notion of abuse developed in the previous section, in that each imposes tort liability for litigation conduct taken for some “improper purpose” or with “malice”—instituting a lawsuit in the case of malicious prosecution and, depending on the jurisdiction, a wide range of other procedural actions in the case of abuse of process.
The actionable abuse, once again, consists in transgressing certain public values in the course of exercising delegated state power rather than merely using such power to pursue some private objective. While it is relatively difficult to prevail on these causes of action,
they attach at least some negative consequences to abusive exercises of delegated state power, especially when sanctions during the litigation are unavailable or prove insufficient.
To be clear, actions for malicious prosecution or abuse of process are instituted by other private parties, not state officials. So insofar as they constitute a punitive delegation-policing strategy, that strategy is only indirect; the delegation-policing function is itself delegated to private parties. This shows that, in contrast to Rule 11 sanctions, the malicious-prosecution and abuse-of-process torts are primarily compensatory and only secondarily punitive. Nevertheless, in affording victims of abusive exercises of delegated state power some kind of remedy, the state imposes limits on civil procedure’s various delegations.
Finally, courts can sanction lawyers as well as the parties they represent, both during the litigation and through collateral proceedings. During the litigation, Rule 11 and Rule 26 authorize a court to sanction a party’s lawyer instead of, or in addition to, the party herself.
Other provisions are directed exclusively at lawyers, such as a federal statute allowing courts to hold a lawyer partially liable for the opposing side’s attorney’s fees and costs when she “multiplies the proceedings in any case unreasonably and vexatiously.”
Such conduct often involves abusing some of the delegated state powers involved in ordinary civil litigation.
As for collateral mechanisms, a number of professional ethics rules cover lawyer conduct that can constitute an abuse of delegated state power.
One of the subsidiary functions of the system of lawyer discipline, it turns out, is policing some of civil procedure’s delegations on behalf of the state. Sanctioning lawyers in all of these various ways makes perfect sense as a delegation-policing strategy insofar as a party has subdelegated a delegated state power to her lawyer and the lawyer is at least partially responsible for abusing that power. As with sanctions directed at the parties, the point is to target the individual who actually abused delegated state power so that the state can distance itself from her misconduct.
III. Delegation Policing as Complicity Avoidance
Considering civil procedure’s various delegation-policing doctrines raises the question why the state should police the delegated powers in ordinary civil litigation for abuse. At first blush, the answer seems obvious: Especially because state power is coercive power, abuse of delegated state power can cause significant harm to others; the various delegation-policing strategies help to ameliorate, if not prevent, that harm.
This concern is surely an important part of the story. Indeed, it helps to explain why, from a delegation-policing perspective, many of the doctrines discussed in the previous Part are overbroad, in that they regulate not just exercises of delegated state power but adversarial litigation conduct more generally. Those doctrines reflect a generic concern with the harms that can be inflicted through civil litigation, whether by abuse of delegated state power or otherwise.
Some of the other doctrines, however, have a narrower focus, uniquely targeting exercises of delegated state power, and then only certain kinds of abuse of that power. This Part identifies an additional reason, beyond general harm prevention, for the state to focus on some forms of procedural abuse to the exclusion of others. It argues that the various delegation-policing doctrines reflect not only an other-regarding concern with limiting the harm private parties can suffer from the abuse of delegated state power, but also a self-regarding concern on the part of the state with distancing itself from private wrongdoing that involves the violation of certain public values, so as to preserve its own moral integrity and that of the political community it serves. This Article labels the latter concern “complicity avoidance.”
As with this Article’s account of abuse of delegated state power,
its account of complicity avoidance is primarily formal rather than substantive. This Part seeks to elucidate the general normative structure of the state’s role in facilitating private wrongdoing during civil litigation, not to comprehensively catalog the types of private wrongdoing that threaten to implicate the state and the political community or to specify all the circumstances in which the state has an obligation to extricate itself from those misdeeds.
Section III.A introduces the concept of complicity avoidance, revealing its logic to be immanent in certain corners of civil procedure doctrine, particularly civil Batson. Section III.B then shows that state complicity in private wrongdoing is a problem that recurs throughout the law. It considers, in particular, two instances of complicity avoidance beyond civil procedure: the version of the state action doctrine applied in Shelley v. Kraemer and Seana Shiffrin’s revisionist account of the unconscionability doctrine in contract law. Section III.C defends complicity avoidance as a distinct normative logic that cannot be reduced to the dominant normative logic in civil procedure, procedural due process. Finally, section III.D grounds complicity avoidance in liberal political theory, according to which the state claims a monopoly on the legitimate use of coercive power and exercises that power in the name of the political community. These features of political power raise the moral stakes of delegation, threatening to implicate all of us in private wrongdoing.
A. Complicity Avoidance in Civil Procedure
In decisions applying civil procedure’s various delegation-policing doctrines, courts rarely discuss in significant detail the values served by policing delegations for abuse. But when they do, they do not focus exclusively on the harm suffered by victims of abusive exercises of delegated state power; they also speak of the abuse’s “tainting” or “corrupting” the civil justice system, or the wrongdoer’s making the court “a party to” the abuse.
Courts also worry, in other words, about the state’s becoming complicit in the abuse.
This distinct, self-regarding concern is perhaps most explicit in Edmonson, the civil Batson case. To be sure, the Court acknowledged the personal “injury to excluded jurors” from discriminatory peremptory challenges.
But also at stake, in the Court’s view, was the state’s own moral integrity. “By enforcing a discriminatory peremptory challenge,” the Court explained, a “court ‘has not only made itself a party to the [biased act], but has elected to place its power, property and prestige behind the [alleged] discrimination,’” and thus “in a significant way has involved itself with invidious discrimination.”
This complicity in private discrimination “mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality.”
Edmonson essentially imposed an obligation on all courts to avoid complicity by refusing to give effect to discriminatory peremptory challenges—that is, by withholding state support from abusive exercises of a delegated state power.
In her dissent in Edmonson, Justice O’Connor rejected the majority’s broad notion of state responsibility for private wrongdoing in civil litigation. The civil trial, as she saw it, “is by design largely a stage on which private parties may act”;
the state merely “erects the platform” and “does not thereby become responsible for all that occurs on it.”
For this alternative conception of the civil trial, Justice O’Connor relied primarily on the Court’s decision in Polk County v. Dodson, which had held that a public defender does not act “under color of state law” within the meaning of 42 U.S.C. § 1983 when executing a lawyer’s traditional “adversarial functions.”
A lawyer, the Dodson Court reasoned, performs what is “essentially a private function”: “advancing ‘the undivided interests of his client.’”
The Edmonson majority acknowledged that not every act by a party or her lawyer during civil litigation necessarily constitutes state action.
Nonetheless, it viewed the peremptory challenge as not just another “private function,” but an exercise of delegated state power that threatened to implicate the state in the grievous moral wrong of racial discrimination.
In fairness, Justice O’Connor had a point when she observed that the peremptory challenge is really not so different from other “adversarial act[s]” taken during civil litigation.
To take two examples, summonses and subpoenas seem to share the features that, in the Edmonson Court’s view, render a peremptory challenge state action: They similarly depend on “the overt, significant participation of the government,”
in that each is issued in the name of the court and is backed by the state’s coercive power, and neither seems to be any less of a “traditional function of the government”
than a peremptory challenge.
Perhaps unsurprisingly, then, courts employ the logic of complicity avoidance beyond the state action context and in cases involving procedural powers other than peremptory challenges. For example, in decisions imposing sanctions under Rule 11 and the discovery rules, courts often describe the abuse of prosecution and discovery-related powers as “tainting” or “corrupting” the justice system or making the court “a party to” or even “complicit in” private wrongdoing, and they invoke sanctions as a way of removing that taint.
Similar rhetoric appears in abuse-of-process and malicious-prosecution decisions.
Whether or not the exercise of these other procedural powers formally constitutes state action as a matter of constitutional law, courts view the abuse of those powers as breaching the public–private divide and staining the state’s moral integrity.
The notion of complicity in these decisions does not depend on the narrower conception of a delegation articulated by public law scholars such as Davis and Metzger.
The state can, in other words, become complicit in an abusive exercise of delegated state power even though the private party wielding that power isn’t acting on the government’s behalf or constrained to pursue its purposes. In Edmonson, for instance, the Court perceived a threat of complicity, notwithstanding the fact that private parties may legitimately exercise peremptory challenges for their own ends.
The risk of complicity arises not because private parties are standing in for the state but because they are exercising its coercive powers. This means that the state faces a pervasive risk of complicity in civil litigation. Because a private party need not be authorized to act as the state’s agent in order to render it complicit in her wrongdoing, every exercise of delegated state power in civil litigation potentially implicates the state’s moral integrity. And because there is a fine line between a legitimate private purpose and an improper one—an aggressive discovery request, for example, can quickly shade into a vexatious one—a significant number of those exercises of delegated power will in fact prove to be abusive, and thus, for the state, corrupting.
And yet, civil procedure’s delegation-policing doctrines only mitigate the threat of complicity rather than eliminate it. They do so to varying degrees. The delegation-rescinding doctrines afford the state the most protection, deeming the risk of complicity too great to allow private parties to continue to exercise state power unsupervised by state officials. The doctrines that withhold enforcement from certain exercises of delegated power, by contrast, are somewhat more permissive: They allow private parties to continue to exercise—and thus to abuse—delegated state powers but refuse to lend the state’s support to exercises of those powers that offend especially important public values. Finally, the doctrines that punish abusive exercises of delegated state power tolerate the most complicity, censuring only the worst forms of abuse after they have occurred. Given the limits of the various delegation-policing strategies, the state ends up incurring a good deal of complicity in abusive exercises of delegated power that can be neither thwarted nor repudiated. This is by no means to deny the significant benefits of delegating procedural powers to private parties.
But we should also recognize that those benefits come at a considerable moral cost to the state.
B. Complicity Avoidance Beyond Civil Procedure
Civil procedure’s delegation-policing doctrines represent a distinctly procedural response to a distinctly procedural problem. Ordinary civil litigation delegates a number of procedural powers to private parties. In abusing those powers, private parties can render the state complicit in their wrongdoing. The delegation-policing doctrines, in their different ways, allow the state to avoid that complicity by distancing itself from private parties’ exercises of delegated procedural powers.
Sometimes, however, the threat of complicity arises from the substance of a party’s legal claims. Even when private parties exercise delegated procedural powers scrupulously, they can still jeopardize the state’s moral integrity if they are using civil litigation to seek the state’s support for some objectionable goal and the substantive law entitles them to relief. This different iteration of the complicity problem calls for different, substantive complicity-avoidance doctrines—rules of substantive law that alter the content of a given cause of action in a way that thwarts private parties’ attempts to use civil litigation to achieve certain repugnant ends. Attending to these doctrines not only reveals a deep connection between procedure and substance but also gives a fuller sense of the kinds of private wrongdoing that trigger complicity concerns. This section considers two substantive complicity-avoidance doctrines: the version of the state action doctrine applied in Shelley v. Kraemer and Seana Shiffrin’s revisionist account of the unconscionability doctrine in contract law.
Shelley held that a State court’s enforcement of a racially restrictive covenant is “state action” that violates the Fourteenth Amendment’s Equal Protection Clause.
While the Court relied on precedents holding that official judicial action is state action,
it never clearly explained how private parties’ discriminatory motives can taint a judicial decision. The Court’s reasoning, however, indicates that the constitutional violation in Shelley must have amounted to state complicity in private discrimination. The Court never suggested that either of the States involved had itself engaged in any discriminatory conduct. Rather, the State courts had facilitated private discrimination by giving effect to discriminatory private agreements. Their responsibility for the discrimination was therefore secondary rather than primary. This is reflected in the language of the Court’s opinion, which described the State courts’ enforcement of the restrictive covenants as the “[p]articipation of the State” in private discrimination.
And while acknowledging that “the particular pattern of discrimination . . . was defined initially by the terms of a private agreement,” the Court noted that “[t]he judicial action” of enforcing that discrimination “bears the clear and unmistakable imprimatur of the State.”
Such language describes the role of the accomplice, not the principal.
The private wrongdoing that the State courts had facilitated was a matter of the substance of the restrictive covenants, rather than anything the parties had done during the litigation to enforce them. The Court accordingly had to look to substantive law to develop a strategy for avoiding state complicity in that wrongdoing. Given that the racially restrictive covenants were enforceable under each State’s common law of property, the Court essentially ordered the States to revise their common law to no longer recognize such agreements,
thereby making the agreements solely a matter of “voluntary adherence.”
By refusing to coercively enforce the racially restrictive covenants, the Court believed, the States could extricate themselves from that private discrimination. That is the logic of complicity avoidance.
This account by no means solves the perennial puzzle surrounding Shelley: how to cabin its holding to prevent constitutional law from subsuming nearly all of private law. The Supreme Court has itself balked at Shelley’s most sweeping implications, significantly reining in the state action doctrine in subsequent decisions.
But the Court and commentators alike have failed to articulate a coherent, principled basis for limiting Shelley’s logic.
In light of that failure, we could simply dismiss Shelley as a (necessary and justified) realist aberration, the high-water mark of the Court’s attempt to extend federal judicial oversight over as many discriminatory practices as possible. A less ad hoc response would be to accept the full breadth of Shelley’s articulation of the state action doctrine and to focus on determining when the state should refuse to lend its support to private wrongdoing. It may be better to candidly acknowledge the extent of the state’s potential involvement in private wrongdoing and to consider when the state has a duty to repudiate it than to occlude the moral costs of our commitment to private ordering by simply pretending that the state isn’t implicated.
Read as a complicity-avoidance decision, Shelley identifies a problem that, far from being limited to constitutional law’s state action doctrine, recurs throughout the law. Consider the unconscionability doctrine in contract law, as reconceptualized by Shiffrin.
The unconscionability doctrine allows courts to refuse to enforce an otherwise valid contract the terms of which were manifestly unfair or immoral at the time the agreement was formed.
of the doctrine have viewed it as paternalistic, since it relieves one of the parties to a contract of her freely assumed obligations when they prove to have been unwise. Against this consensus, Shiffrin contends that the unconscionability doctrine need not be paternalistic, depending on the state’s motive in deploying it. Insofar as the state uses the doctrine simply to protect the weaker party to a contract from the bad consequences of her decision, then it is indeed paternalistic. But that is not the state’s only possible purpose. Instead, the state’s “motive may reasonably be a self-regarding concern not to facilitate or assist harmful, exploitative, or immoral action.”
This “self-regarding concern” arises because “the legal institution of contract requires, through their role in enforcement, the participation and cooperation of parties outside the agreement—that is, it requires the cooperation of the community, as it is embodied in the state.”
So rather than bespeaking an other-regarding concern for the weaker party’s well-being, the “state’s refusal to enforce an unconscionable contract could reflect an unwillingness to lend its support and its force to assist an exploitative contract because it is an unworthy endeavor to support.”
One sees this alternative motivation at work in many of the decisions applying the doctrine, in which “a dominant concern of judges is self-regarding: it is to avoid facilitating the actions of an exploiter rather than to act to protect the disadvantaged party.”
That, of course, is precisely the same concern as in Shelley.
Shiffrin thus reconceptualizes unconscionability as a complicity-avoidance doctrine.
While substantive, both Shelley and unconscionability respond to the same fundamental problem as civil procedure’s delegation-policing doctrines. Whether by abusing delegated procedural powers or by seeking public support for their immoral projects, private parties can render the state complicit in their wrongdoing. Shelley and unconscionability, just like civil procedure’s delegation-policing doctrines, enable the state to avoid the worst forms of complicity.
C. Complicity Avoidance, Not Due Process
If the logic of complicity avoidance underlies important doctrines in civil procedure (among other legal domains), one might wonder why it has escaped scholarly attention. The neglect may well owe to the hegemony of another normative logic in civil procedure doctrine and scholarship: procedural due process. In answering almost any procedural question, courts and scholars alike reflexively invoke due process—if not the concept itself, then at least its constituent values, such as fairness and accuracy. Many readers thus might doubt the distinctiveness of complicity avoidance and instead try to assimilate it to due process. There is considerable support for such a move, as both courts and commentators have conceptualized delegation problems in other areas of the law in due process terms.
Yet, while civil procedure’s delegations of state power can indeed raise significant due process concerns, those concerns hardly exhaust the delegations’ normative significance. Even after accounting for the threat to due process values, there remains the problem of state complicity in abusive exercises of delegated power—a problem that civil procedure’s delegation-policing doctrines are well tailored to address.
Procedural due process has two main features, neither of which quite fits the structure of civil procedure’s delegation problem. First, procedural due process reflects an ex ante concern with promoting accuracy in governmental decisionmaking. The Supreme Court has construed the Due Process Clause to require the government to follow certain procedures before depriving people of their property (or, less relevant in the civil context, their lives or liberty).
According to the Court, the purpose of this requirement is “to minimize substantively unfair or mistaken deprivations of property” by the government.
Procedural due process thus seeks to prevent erroneous deprivations of property by prescribing procedures that enhance the accuracy of governmental decisionmaking.
Civil procedure’s delegation-policing doctrines, by contrast, reflect an ex post concern that goes beyond accurate decisionmaking. Even when a civil justice system institutes procedures that reduce the risk of erroneous outcomes to a tolerable level, those procedures will not forestall every abuse of delegated state power. Nor will every kind of abuse compromise the accuracy of the decisionmaking process. Yet civil procedure still employs delegation-policing doctrines, which seek to address abusive exercises of delegated state power as they are occurring or after they have occurred, and irrespective of their effect on the accuracy of the ultimate decision. Traditional notions of due process can’t readily account for that function; complicity avoidance can.
Once again, civil Batson exemplifies the divergence between civil procedure’s delegation-policing doctrines and procedural due process. The Court in Edmonson admittedly adverted to due process concerns in justifying a ban on racially discriminatory peremptory challenges in civil trials, noting how “[r]ace discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there.”
It is also true that the traditional justifications for peremptory challenges sound in due process.
But Edmonson’s holding is both underinclusive and overinclusive with respect to due process values. Rather than specify ex ante various accuracy-undermining bases for making peremptory challenges, the Court subjected peremptory challenges to ex post review solely for discrimination. And rather than permit race-based peremptory challenges that may be grounded in empirically justified generalizations, the Court proscribed all race-based peremptory challenges categorically.
These aspects of Edmonson’s holding belie the suggestion that the Court was trying to enhance the overall accuracy of civil jury trials. They instead suggest that the Court was trying to avoid state complicity in private discrimination as such.
Second, procedural due process is concerned with direct state action, whereas civil procedure’s delegation-policing doctrines are concerned with indirect state action. Due process constrains what the state may do to private parties—the delegation-policing doctrines, what it may do for private parties. Consider the prejudgment attachment and replevin cases. Those cases were formally adjudicated under the Due Process Clause, and the Court repeatedly emphasized the importance of predeprivation hearings for promoting accurate decisionmaking.
But the Court also acknowledged that while in those cases “the inquiry is similar” to the traditional due process analysis, “the focus is different.”
Specifically, “[p]rejudgment remedy statutes ordinarily apply to disputes between private parties rather than between an individual and the government,” and as such “are designed to enable one of the parties to ‘make use of state procedures with the overt, significant assistance of state officials.’”
The state’s role, in other words, is limited to facilitating, rather than directly regulating, private conduct. The Court thus had to gerrymander the three-pronged due process balancing test articulated in Mathews v. Eldridge,
according “principal attention” to “the interest of the party seeking the prejudgment remedy” rather than to any interest of the government.
More than just a minor doctrinal tweak, this modification fundamentally reconfigured the role of the state in the due process analysis. The concept of complicity avoidance makes that reconfiguration seem less ad hoc.
For there to be state complicity, of course, there must be some underlying private wrong for the state to be complicit in. And one can indeed conceptualize some of the wrongs addressed by civil procedure’s delegation-policing doctrines in due process terms, as some involve, or contribute to, an arbitrary deprivation of property. But not all of them. From civil Batson to Rule 11 to the abuse-of-process tort, the problem is not that someone was or might be arbitrarily deprived of her property—some of the doctrines can be triggered without any deprivation at all—but that a private party has compromised certain public values in exercising state power. In any event, even when the underlying wrong does implicate due process, the state’s role remains only secondary rather than primary. The state does not act of its own initiative but rather lends its coercive apparatus to private parties so they can achieve their own ends. Complicity avoidance provides a distinct normative framework for thinking about the state’s obligations when it has delegated its coercive power to private parties rather than exercising that power itself.
D. Defending Complicity Avoidance—and Delegation
The complicity-avoidance logic employed in cases such as Edmonson is not just a doctrinal construct. As this section argues, that logic resonates with fundamental principles of liberal political theory. The aim, to be clear, is not to provide a definitive defense of complicity avoidance but to show it to be a normatively attractive ideal in light of our legal system’s other commitments. At the same time, complicity avoidance comes at a cost: In attempting to avoid complicity in private wrongdoing, the state forgoes many of the benefits associated with delegating state power to private parties in the first place. The upshot, this section suggests, is that sometimes there are good reasons for the state—and thus the entire political community—to tolerate a degree of complicity in private wrongdoing.
1. The Political Theory of Complicity Avoidance. — Civil procedure’s delegations of state power run up against one of the most basic tenets of liberal political theory: that the defining feature of political power is its coerciveness and that the central task of political theory is legitimating and limiting that coercion. Contemporary liberalism proceeds from the premise, most prominently associated with Max Weber, that the modern state claims a monopoly on the legitimate use of physical force.
This premise gives rise to the need to specify the conditions that legitimate the state’s use of coercion, which, in turn, involves identifying limits on the state’s coercive power.
These imperatives explain public law’s enduring focus on constraining state action.
They also account for the more recent anxiety about the “privatization” of various state functions
: If state power is necessarily coercive, and if that power must be subject to certain limits to be legitimate, then delegating state power to private parties threatens to untether state coercion from its legitimating constraints. All of this is reason enough to carefully attend to civil procedure’s delegations of state power and its delegation-policing doctrines.
A concern with coercion alone, however, doesn’t fully explain courts’ additional concern with complicity in abusive exercises of delegated state power. To appreciate that further worry, one must understand the special nature of political power in a liberal democracy. The political philosopher John Rawls, synthesizing the liberal social-contract tradition, famously argued that democratic political power is distinctive not just because of its coerciveness but also because of its authorship. “[W]hile political power is always coercive power,” Rawls explained, “in a constitutional regime it is the power of the public, that is, the power of free and equal citizens as a collective body.”
In a democracy, in other words, political power is ultimately “citizens’ power”
—“a power in which all citizens have an equal share.”
It is thus doubly public: As coercive power, it’s vested with the state, per the monopoly of physical force; and as democratic power, it’s collectively authorized by the political community, per the social contract.
This means that the political community has a lot riding, morally speaking, on how the state exercises its coercive power. As Arthur Ripstein has explained, because political power in a democracy is authorized by the political community as a whole, the state speaks in the name of the political community whenever it exercises power through any of its institutions.
That includes when courts resolve private disputes through civil litigation, which is among those “procedures and institutions [that] can decide to act on behalf of everyone.”
The political community thus bears ultimate responsibility for how the state exercises its coercive power, including how its courts adjudicate private disputes.
And when the state abuses its power, the political community becomes complicit in that wrongdoing.
Yet the liberal account of political power has much more sweeping implications for the civil justice system than liberal political theorists have appreciated. They tend to equate exercises of state power in civil litigation with judicial action, and thus assume that the political community’s complicity extends only as far as the decisions of courts. But as this Article has shown, the state doesn’t maintain exclusive control over its coercive power in civil litigation. To be sure, as liberal political theorists have rightly emphasized, the main point of a civil justice system is to provide authoritative, public resolutions of private disputes.
Along the way, though, the state permits private parties to exercise various procedural powers.
As coercive powers of a democratic state, those powers are still authorized by the members of the political community and exercised in their name. The political community thus remains collectively responsible for how private parties exercise the delegated state powers during civil litigation. Given the nature of democratic political power and the division of labor between private parties and courts in civil litigation, the complicity that concerns courts in cases such as Edmonson turns out to be not just the complicity of the state but the complicity of us all.
2. Balancing Complicity Avoidance and Delegation. — If the political community can indeed become complicit in private exercises of delegated state power during civil litigation, then perhaps we should just eliminate the risk of complicity by eliminating the delegations. Rather than delegate the state’s coercive prosecutorial, investigatory, and adjudicatory powers to potentially faithless private parties, the safer course might be to vest those powers exclusively with more accountable governmental officials. And yet, while civil procedure’s delegations entail significant moral costs for the state—much more significant than civil procedure scholars have appreciated—they also promise significant benefits. Those benefits counsel against eliminating civil procedure’s delegations and in favor of taking the very approach civil procedure in fact takes: delegating many of the state’s procedural powers to private parties but policing those delegations for abuse.
Many of the benefits of civil procedure’s delegations have been well canvassed in the literature and are present across the civil docket, both in private law and public law cases. In private law cases, delegating the civil prosecutorial power to private parties empowers the victims of private wrongs to directly vindicate their rights
and reposes prosecutorial discretion with those individuals who experience the costs and benefits of civil litigation most acutely.
In cases with a public law dimension, scholars have recognized a number of additional benefits associated with the private enforcement of federal statutes, mostly stemming from various practical advantages that private parties enjoy over administrative agencies, including less vulnerability to capture, stronger enforcement incentives, more resources, and greater access to information.
Delegating state power has another set of interrelated benefits that have more to do with political morality than efficient policy implementation. Scholars have explored these benefits in the context of settlement and various forms of alternative dispute resolution (ADR), but they seem to apply to the private exercise of other state procedural powers as well. Most directly, delegating state procedural powers to private parties promotes individual autonomy by giving individuals some say over the resolution of their disputes.
Because of civil procedure’s delegations, private parties can (within wide limits) delineate the contours of their dispute in terms of claims and parties, decide how much and what kinds of information they will exchange with each other during discovery, and even set the terms of any resolution itself through settlement. This autonomy, in turn, promises two further benefits. First, rather than stoke atomism, allowing private parties to exercise the state’s procedural powers might actually foster communal solidarity, on the theory that people develop a closer attachment to the law by enforcing it themselves.
Second, delegation is also a way for the state to accommodate pluralism. Some members of a liberal political community will inevitably espouse values different from those embodied in the law and other political institutions.
By delegating its procedural powers, the state gives private parties space to express those values in the course of resolving their disputes.
In light of delegation’s benefits, the state might be drawn toward the opposite extreme. Rather than avoid complicity in private wrongdoing by eliminating civil procedure’s delegations and exercising all coercive procedural powers itself, the state might try to get out of the dispute-resolution business altogether, leaving it exclusively to private ordering.
This strategy, however, runs up against another core liberal commitment: the state’s obligation to provide a forum for the authoritative resolution of private disputes.
Indeed, liberalism has traditionally viewed the adjudication of private disputes as a way to augment the state’s authority and enhance its legitimacy.
Liberalism thus creates a dilemma for the state: If the state attempts to avoid complicity in private wrongdoing by exercising all coercive power itself, it forgoes the considerable benefits of delegation; but if it attempts to avoid complicity by completely outsourcing dispute resolution, it shirks its role as final arbiter.
This Article does not attempt to resolve that dilemma. Neither the delegation framework developed in Parts I and II nor the complicity-avoidance theory developed in this Part can tell us exactly how much power a civil justice system should delegate to private parties. Given all the competing imperatives, however, it does seem that our current civil justice system strikes a reasonable balance. Civil procedure’s delegations realize a number of practical and moral benefits for individual litigants and the political community at large, while its delegation-policing doctrines help the political community to avoid becoming complicit in the worst forms of abuse of those delegations. One can, of course, readily envision perfectly legitimate civil justice systems that strike a different balance—either delegating less state power to private parties to avoid even more complicity in private wrongdoing or delegating even more state power to better promote autonomy and accommodate pluralism. The important point is to recognize the tradeoff between complicity avoidance and other important values served by the delegation of state power. Our civil justice system accepts a significant degree of public complicity in private wrongdoing for the sake of those other values, rather than seeking to minimize any threat to the political community’s moral integrity by maintaining exclusive state control over coercive state power.
IV. Toward a Delegation-Policing Approach to Arbitration
The analytical framework developed in the previous Parts can shed light on several procedural debates, both within ordinary civil litigation and beyond it. Within ordinary civil litigation, this Article’s delegation framework simultaneously highlights some of the benefits and drawbacks of current procedural practice. For example, although judges enjoy substantial discretion to police discovery abuse, there is a widespread impression that they rarely exercise it, with the result that discovery often ends up devolving into a “free-for-all.”
The delegation framework suggests that judges can respond to such problems (insofar as they’re real problems)
by more aggressively policing discovery for abuse ex post, in contrast to the recent amendments to the discovery rules, which focus on limiting the scope of discovery ex ante.
The delegation framework also speaks to delegations of the state’s dispute-resolution powers outside ordinary civil litigation. Such delegations include so-called “corporate settlement mills,” a practice in which corporations that have been accused of wrongdoing essentially adjudicate victims’ claims, sometimes in ways that preclude the victims from seeking relief in court.
This Article’s framework confirms the many concerns that scholars have voiced about this practice and suggests the outlines of a general approach to enhancing its legitimacy.
But however important these and other procedural issues may be, the most pressing one remains arbitration. This Part accordingly revisits the delegation critique of arbitration in light of what the previous Parts have revealed about civil procedure’s own delegations of state power. As section IV.A argues, proponents of the delegation critique rightly worry that arbitration delegates significant coercive power to private parties and that, under current Supreme Court precedent, private parties can abuse that power with virtual impunity. In the end, though, the delegations of state power in arbitration are conceptually continuous with those in ordinary civil litigation; the former may lend themselves to more egregious forms of abuse, but both sets of delegations fundamentally raise the same kinds of concerns. This continuity suggests an alternative approach to arbitration’s delegation problem: adapting civil procedure’s delegation-policing doctrines for arbitration’s delegations.
Section IV.B begins to take up that task. This Article’s approach focuses less on the enforceability of arbitration clauses and more on the reviewability of arbitral proceedings and awards. Whereas holding broad classes of arbitration clauses unenforceable effectively restricts private parties’ access to arbitration’s delegations before any abuse has occurred, reviewing arbitral proceedings and awards allows courts to police those delegations for abuse after the fact—the primary strategy civil procedure employs with respect to the delegations in ordinary civil litigation. There may indeed be compelling reasons to severely restrict access to arbitration’s delegations ex ante. But short of that, the lesson of civil procedure’s delegations is that many of the concerns about delegated state power in arbitration can be addressed by policing arbitration’s delegations for abuse ex post.
A. Delegating Procedure Redux
1. The Delegation Critique Defended. — Proponents of the delegation critique tend to portray arbitration as a radical departure from ordinary civil litigation. Whereas public institutions and officials discharge the state’s dispute-resolution functions in ordinary civil litigation, most scholars suppose, arbitration “privatizes” or “outsources” many of those functions.
We can now see that this contrast is overdrawn.
Ordinary civil litigation likewise delegates many of the state’s dispute-resolution functions to private parties, thereby vesting them with significant coercive power.
This is not to say that scholars have been wrong to worry about the delegations of state power involved in arbitration. On the contrary, those delegations raise the same basic concerns as the delegations in ordinary civil litigation. To be sure, what this Article calls the “delegation critique” actually comprises a number of related, but distinct, criticisms, including the following: Binding dispute resolution is an inherently “public function” that should not be delegated to private parties except subject to strict limits,
private parties should not be able to use procedure to insulate themselves from liability for violating substantive rights,
and private parties should generally be prohibited from making law.
Scholars have further argued that adjudication not only resolves private disputes but also realizes a number of public goods that arbitration forgoes—most notably, the production of legal precedent to guide the resolution of future cases
and public transparency about violations of substantive law.
And whereas civil litigation proceeds (largely) in open court, arbitration is almost completely shielded from public scrutiny.
While it is important to recognize the differences among these various criticisms of arbitration, each ultimately presumes the kind of delegation identified in Part I. Each problem, that is, arises only because arbitration allows private parties to tap the coercive power of the state without any meaningful judicial oversight. Thus, private parties perform the inherently “public function” of dispute resolution only insofar as their decisions are binding—more or less automatically backed by the coercive power of the state.
Private parties can use procedure to evade substantive legal obligations only insofar as courts will more or less automatically enforce their procedural choices. Privately made rules constitute “law” only insofar as they’re coercively enforced without any real judicial review.
Arbitration forgoes the public goods of precedent and transparency only insofar as private parties can authoritatively resolve their disputes unsupervised. And private parties can shield dispute resolution from public scrutiny only insofar as their authoritative decisions are insulated from judicial review, which would be subject to public scrutiny. None of these problems would be so acute if a party to an arbitration agreement could, notwithstanding the agreement, either litigate her dispute in court or at least obtain meaningful judicial review of any arbitral award;
each problem stems from the fact that the state coercively enforces arbitration without adequate scrutiny. This is the sense in which arbitration can be understood to delegate state power.
And the current arbitration regime does indeed pervasively delegate state power in precisely that sense. As others have recognized, the FAA, which governs the relationship between courts and arbitration, contains multiple delegations on its face.
On the front end, the Act requires federal district courts, upon motion, to compel arbitration and to stay any related judicial proceedings in any dispute subject to a valid arbitration clause.
As for the arbitral proceedings themselves, the FAA authorizes the parties to choose a method for appointing an arbitrator and, by extension, the procedures she will follow.
Whomever they appoint, in turn, is empowered to subpoena nonparty witnesses and documentary evidence.
Although a subpoena issues “in the name of the arbitrator” and under her signature, the parties can petition a federal district court for an order compelling compliance, on pain of sanctions.
On the back end, if the agreement so provides, a party may seek a court order confirming any arbitral award,
with the order “hav[ing] the same force and effect, in all respects, as, and be[ing] subject to all the provisions of law relating to, a judgment in an action,” such that “it may be enforced as if it had been rendered in an action in the court in which it is entered.”
The FAA thus repeatedly endows the decisions of private parties and their chosen arbitrators with the full and virtually automatic coercive backing of the state
—a delegation of state power.
What is more, in contrast to ordinary civil litigation, the FAA lacks any meaningful mechanisms for policing its delegations. In fact, the Act, as construed by the Supreme Court, affirmatively frustrates almost all judicial delegation-policing efforts, severely limiting the ability of courts to review a privately chosen arbitrator’s actions before coercively enforcing them.
Courts generally may not scrutinize an arbitrator’s subpoena for relevance or materiality before compelling compliance with it.
While the Act specifies various grounds for vacating, modifying, or correcting an arbitral award,
the Supreme Court has held that those grounds are exclusive and cannot be augmented, even by private agreement.
Each of the enumerated grounds, moreover, is quite narrow. For example, most of the grounds for vacatur require egregious abuse during the proceedings, such as fraud or corruption, that actually infects the final award.
Only one of the grounds concerns the merits of the award, permitting vacatur “where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.”
Yet, the Court has held that “[i]t is not enough” under this provision “to show that the [arbitrator] committed an error—or even a serious error”;
a court must uphold an award so long as the arbitrator “even arguably constru[ed] or appl[ied] the [parties’] contract.”
The FAA, in short, requires federal courts to coercively enforce all but the most flagrantly abusive decisions of privately appointed arbitrators. Given the statute’s broad delegations and dearth of delegation-policing mechanisms, it seems fair to conclude along with proponents of the delegation critique that the FAA has “aggrandized private parties.”
Scholars are right to worry about this state of affairs and to decry the Supreme Court’s seeming nonchalance toward the FAA’s broad delegations of state power. In addition to all of the concerns raised by proponents of the delegation critique, this Article has highlighted the risk that private parties will abuse delegations such as those in the FAA, violating important public values and potentially rendering the entire political community complicit in their wrongdoing. Perhaps we could tolerate that risk if, as in ordinary civil litigation, courts possessed meaningful mechanisms to repudiate abusive exercises of delegated power in arbitration. But the Supreme Court has largely eviscerated what few delegation-policing mechanisms the FAA arguably contains.
2. Beyond Enforceability. — Proponents of the delegation critique have proposed to address this problem primarily by curbing arbitration—essentially, limiting private parties’ access to the FAA’s delegations of state power. They would do so in two ways. On the one hand, many scholars would have courts refuse to enforce arbitration clauses in broad categories of disputes, particularly disputes between sophisticated parties and individual consumers or employees, mandating that such disputes be resolved exclusively through court-based adjudication.
Because the arbitration clauses governing such disputes almost always appear in contracts of adhesion, scholars argue that courts should either refuse to enforce adhesive arbitration clauses outright or, to similar effect, rigorously assess the “voluntariness” of such clauses, defining “voluntariness” in a way that precludes enforcement.
On the other hand, some scholars would have courts enforce only those arbitration clauses that provide for arbitration proceedings that closely mirror ordinary civil litigation.
Arbitration, on this view, would be much less disconcerting if it resembled the proverbial “day in court,” with ample discovery, an impartial adjudicator, and adequate remedies. To be sure, some of these same scholars simultaneously advocate enhanced judicial review of arbitral awards and proceedings—but only as part of a belt-and-suspenders approach rather than as a distinct strategy.
And they ultimately put more weight on limiting the enforcement of arbitration clauses, as opposed to more closely scrutinizing the outputs of arbitration proceedings.
This emphasis on the enforceability of arbitration clauses is understandable as a practical matter. For at least as currently construed by the Supreme Court, the FAA gives courts somewhat more leeway to keep disputes out of arbitration in the first place than to reassert control over them once they’ve been shunted there—either by deeming an arbitration clause unenforceable under State and federal law doctrines preserved by the Act’s “savings clause”
or as part of determining whether the parties actually agreed to arbitrate a particular dispute (the so-called arbitrability determination).
Scholars have also adduced deeply principled reasons for restricting access to arbitration’s delegations in broad categories of cases. First, sophisticated parties, such as corporations, frequently insert arbitration clauses into contracts of adhesion with ordinary individuals, a practice that, many believe, allows them to exploit the FAA’s delegations to effectively force individuals to relinquish their right to their “day in court” for a one-sided arbitration proceeding.
Many have argued that the FAA was never intended to apply to such contracts but only to contracts between sophisticated commercial parties.
The exploitative nature of these agreements is exemplified for many scholars by arbitration clauses that forbid class arbitration even in so-called negative-value cases, in which the costs of prosecuting the case on an individual basis (either in arbitration or a lawsuit) exceed any potential recovery.
Second, whereas most scholars tend to view arbitration’s delegations as differing from civil procedure’s in kind, this Article has essentially argued that the two differ in degree; arbitration and ordinary civil litigation may differ in the extent to which each delegates state power, but they do not differ in the fact that each delegates state power. Even accepting that characterization, however, one might think that the difference in degree makes all the difference. Civil procedure delegates various procedural powers piecemeal while retaining as the final decisionmaker a public official who is constrained by both substantive law and procedural rules and who must give public reasons for her decisions; arbitration, by contrast, authorizes private parties to assign the state’s dispute-resolution function wholesale to a private decisionmaker.
Both sets of concerns have a lot of merit, but they have been fully aired in the literature, as have the resulting proposals to dramatically curtail arbitration.
Notwithstanding the extensive scholarly criticism, the Supreme Court has steadfastly adhered to its decades-old jurisprudence upholding the enforceability of adhesive arbitration clauses against individual consumers and employees.
What proponents of the delegation critique have missed is that civil procedure contains the seeds of another kind of response to arbitration’s delegation problem, one with its own, distinct logic. Even if courts continue to enforce arbitration clauses that many scholars consider problematic, we should empower courts to repudiate the abuses of delegated state power that occur during arbitration after the fact.
A delegation-policing approach holds promise notwithstanding the significant differences between arbitration and ordinary civil litigation. The power asymmetries between the parties do indeed tend to be more pronounced in arbitration than in civil litigation, and arbitration involves the wholesale delegation of the state’s dispute-resolution powers to privately chosen arbitrators, in contrast to the piecemeal delegations in civil litigation. In light of all this, many scholars worry that sophisticated parties can use arbitration to effectively suppress legal claims, making arbitral proceedings so one-sided that no victim of wrongdoing would bother to invoke them to seek redress.
But adopting delegation-policing doctrines might still go at least some way toward addressing this concern. If courts reviewed arbitral awards and proceedings more rigorously before enforcing the awards—if arbitration’s delegations were better policed—the prospect of such review might have a feedback effect of rendering those processes less one-sided in many cases. It might then become more worthwhile for would-be plaintiffs to actually go through with an arbitration when their claims were subject to a valid arbitration clause. Greater policing ex post, in short, might help to make arbitration fairer ex ante.
To be clear, such ex post delegation-policing strategies may be insufficient to resolve some of the biggest controversies surrounding arbitration. It may be impossible, for example, to address the problems posed by class-arbitration bans without prohibiting them ex ante. Nonetheless, we can combat a significant amount of abuse by having courts police arbitration ex post, through analogues of civil procedure’s delegation-policing doctrines.
B. Policing Arbitration’s Delegations
This section begins to think about how we might recast civil procedure’s delegation-policing doctrines to fit arbitration’s delegations of state power. Given the magnitude of the task, the doctrinal proposals outlined here are necessarily impressionistic. This section aims only to give a general sense of what a delegation-policing approach to arbitration might look like rather than to develop a comprehensive program for reform. In doing so, however, this section attempts to illustrate how we can look to civil procedure to allay some of the concerns about arbitration.
1. Rescinding Delegations. — The FAA currently contains no cognates of the doctrines in civil procedure that rescind delegated state powers when they’re being abused. It seems, however, that such doctrines could play a salutary role in arbitration too. One possibility would be to amend the FAA to provide for interlocutory judicial review of certain procedural decisions made during an arbitration and for the termination of the arbitration if a court determined that any of those decisions were abusive.
The proposal might work as follows. Unless an arbitration clause was exploitative on its face, a court would compel arbitration upon the defendant’s request and stay any related judicial proceedings initiated by the plaintiff. But the plaintiff would be allowed to return to court during the course of the arbitration to challenge some of the arbitrator’s procedural decisions. If the court agreed with the plaintiff that the arbitrator had abused her delegated powers in making those decisions, it would discontinue the arbitration and lift the stay on the plaintiff’s lawsuit, thereby reasserting state control over delegated dispute-resolution powers.
This proposal would help to address some of the procedural deficiencies in arbitration identified by proponents of the delegation critique. As noted earlier, scholars have faulted arbitration for all too frequently denying plaintiffs the kinds of procedural protections they would enjoy in ordinary civil litigation, particularly a meaningful opportunity to obtain discovery and present evidence.
When an arbitrator denies those opportunities, and when the plaintiff can’t make her case without them, a court could deem the arbitrator’s decision an abuse of the state’s dispute-resolution powers and reassert state authority over the dispute. The bar for what constitutes “abuse” would, of course, have to be set quite high. It would not be sufficient for a plaintiff simply to disagree with an arbitrator’s determination that, say, a particular document wasn’t discoverable or the testimony of a particular witness was cumulative. But it seems reasonable to rescind delegated state powers from an arbitrator whose procedural decisions clearly thwart a fair resolution of the dispute.
This proposal prompts an obvious objection: Permitting interlocutory judicial review of arbitrators’ procedural decisions would invite a flood of piecemeal appeals, which would undermine the benefits of arbitration and burden the courts. This problem could be substantially ameliorated, however, by making interlocutory review discretionary with the court rather than as of right,
and limiting such review to just a few key procedural decisions, such as the decisions whether to permit discovery and the presentation of evidence. And courts could further discourage abuse of the interlocutory-review mechanism by imposing sanctions for review petitions that did not even plausibly allege an abuse of delegated power.
2. Withholding Enforcement. — The FAA already contains a few provisions that, properly construed, could provide a basis for implementing a strategy of withholding coercive enforcement from abusive exercises of delegated power in arbitration. For one, the FAA authorizes federal district courts to compel compliance with an arbitrator’s subpoena of a nonparty witness.
Although courts tend to rubber-stamp arbitral subpoenas,
one could imagine a regime in which judges scrutinized the subpoenas more closely and refused to compel compliance with those that abuse the state’s investigatory powers.
For another, the Supreme Court could overturn its precedents narrowly interpreting the provisions of the FAA governing the confirmation, vacatur, and modification of final arbitral awards and permit closer judicial review of such awards (though given its current composition, the Court is unlikely to change course anytime soon).
Courts would not, of course, review arbitral awards de novo but would instead apply something more akin to the deferential “arbitrary and capricious” standard for judicial review of the decisions of administrative agencies.
While many scholars have advocated greater judicial scrutiny of arbitral awards, this Article’s delegation framework grounds that proposal in a distinct logic rather than seeing it as just another way to curb arbitration.
Bolstering judicial review would go some way toward addressing a significant concern with arbitration: that most arbitrators are biased in favor of the repeat players that pay their fees and generate most of their business.
The Constitution requires an impartial arbitrator.
But this requirement confronts a well-recognized dilemma: If a repeat-player defendant pays an arbitrator’s fees, the arbitrator may be incentivized to rule for the defendant, in the hope that it will continue to send disputes her way; yet a defendant can’t require an individual plaintiff to pay all of the arbitrator’s (considerable) fees, lest it effectively foreclose all relief. Notwithstanding this dilemma, scholars have argued that courts should refuse to enforce arbitration clauses that create even the potential for subtle forms of bias.
Under a delegation-policing approach, by contrast, a court would review an arbitral award for arbitrariness or capriciousness. While that standard would still afford arbitrators significant discretion, it would filter out those proceedings in which the arbitrator was actually biased and the bias infected the award by prompting the arbitrator to rule based on partiality for the defendant rather than any legal or contractual ground.
The prospect of such review, moreover, could potentially deter many forms of bias. This proposal could be grounded in the provision of the FAA permitting vacatur based on “evident partiality or corruption in the arbitrators,”
but understanding “partiality” and “corruption” more capaciously than courts currently do.
That broader conception seems justified once one recognizes that arbitrators are vested with significant state power and therefore have a responsibility to exercise that power consistent with important public values.
One practical hurdle this proposal would have to surmount is that there is no right to a reasoned opinion in arbitration, and arbitrators rarely provide one (though sometimes a transcript of the arbitrator’s decision is available).
The lack of a reasoned opinion could frustrate judicial review in many cases, preventing a party from proving that the arbitrator or other party abused delegated state power. Short of requiring reasoned opinions in all arbitrations, courts could impose a “penalty default”
in the absence of such an opinion, shifting the burden to the party seeking confirmation or opposing vacatur to prove that the alleged abuse of delegated power did not in fact occur. This would likely have the effect of incentivizing parties to require their chosen arbitrators to prepare reasoned opinions, just as expanded judicial review in general would likely incentivize arbitrators to exercise their powers more dispassionately.
3. Punishing Abuse. — Finally, courts could punish abuse of delegated state power during arbitration by imposing sanctions during actions to confirm arbitral awards. The standard for imposing sanctions would resemble Rule 11’s “improper purpose” standard.
According to such a standard, sanctions would be warranted when one party sought to confirm an arbitral award that issued from severely defective proceedings or sought confirmation after having forced the other party into arbitration for some illegitimate reason, such as to deprive her of an effective remedy for her injuries.
Courts could impose sanctions under either Rule 11 itself or their inherent powers.
States could also create a cause of action for “abuse of arbitral process,” lying against the party who compelled the arbitration or the arbitrator herself, depending on who was ultimately responsible for the abuse.
By punishing abuse of arbitration’s delegations, the state would not only repudiate the abuse but also incentivize private parties and arbitrators to design and conduct arbitrations in accordance with important public values.
* * *
The foregoing proposals are not without their problems.
Those who are skeptical of arbitration will likely worry that the various delegation-policing strategies, with their reliance on ex post judicial review, would prove too burdensome for the parties they’re primarily designed to help—namely, individuals seeking redress against sophisticated parties. Yet while plaintiffs and plaintiffs’ lawyers may currently have inadequate incentives to challenge arbitral awards and procedures, the calculus would be different if the delegation-policing strategies outlined above were adopted. Indeed, with stronger delegation-policing doctrines, it might even be easier to challenge arbitral awards and procedures after the fact than to oppose sending a dispute to arbitration in the first place. That’s because the primary legal bases for resisting the enforcement of an arbitration clause—the State contract law doctrines of public policy and unconscionability and the federal effective-vindication doctrine
—all turn on speculative inquiries about the likely conduct of the arbitration proceedings in a given case or set of cases, whereas the delegation-policing doctrines respond to abuse that has already occurred.
Supporters of arbitration, on the other hand, will likely worry that the delegation-policing strategies would threaten to vitiate many of arbitration’s purported benefits, such as finality, informality, and speed.
Some scholars have suggested that these benefits are exaggerated, as arbitration has increasingly come to resemble litigation.
But whatever the merits of that debate, the delegation-policing approach advocated here would likely undermine arbitration primarily in one-off disputes between unequal parties—precisely the kinds of disputes in which arbitration is most likely to involve abuse. For the weaker party in such disputes would have little reason not to invoke the delegation-policing doctrines. In disputes between sophisticated parties, by contrast, the parties would be more likely to have an ongoing relationship and thus would be more loath to invoke the delegation-policing doctrines, lest they undermine the efficiency advantages of arbitration for their future disputes.
It is also worth reemphasizing that, in any kind of dispute, the standard for showing an abuse of delegated power would be a strict one, such that the majority of arbitral decisions would in practice be final. In the end, though, we inevitably face a tradeoff between benefits to private parties and costs to public values whenever we delegate state power. A delegation-policing approach better accounts for both the benefits and the costs of arbitration’s delegations than does the current regime.
For solutions to some of the most vexing problems with arbitration, we should look to civil procedure. Scholars have rightly worried that arbitration delegates state power to private parties. What they’ve missed, however, is that a similar delegation problem has already been rehearsed in ordinary civil litigation. One of the most distinctive features of the American civil justice system is that it allows private parties to exercise significant coercive power without prior judicial approval; it is a relatively small step to conceptualize those private exercises of power as delegations of state power. Responding to the potential for its delegations to be abused, civil procedure contains numerous doctrines that, rather than restrict access to delegated power before any abuse has occurred, allow the state to distance itself after the fact from exercises of delegated power that offend especially important public values. Civil procedure has even articulated a normative rationale for these delegation-policing doctrines: the need for the state (and the political community it serves) to avoid complicity in private wrongdoing. So the fundamental problem with arbitration isn’t that it delegates state power per se, but that it lacks the kinds of delegation-policing doctrines found throughout civil procedure. Once we grasp this major flaw in the current arbitration regime, we can move beyond the dichotomy between permitting private parties to abuse arbitration’s delegations with virtual impunity, as current doctrine does, and putting strict ex ante limits on those delegations, as most critics of arbitration advocate. Even if arbitration clauses continue to be enforced more often than arbitration’s critics think legitimate, we can still address many of the concerns about arbitration by expanding judicial review of arbitral awards and proceedings to enable courts to police arbitration’s delegations, just as they already police civil procedure’s.
Why have scholars overlooked this deep continuity between arbitration and ordinary civil litigation? This Article concludes by venturing a possible diagnosis and a prescription.
The diagnosis is the near monopoly procedural due process enjoys on normative questions in civil procedure. An analytical framework that is self-consciously preoccupied with the procedures of state institutions is bound to neglect crucial issues when we’re assessing the exercise of coercive power by private parties. Notwithstanding this blind spot, scholars continue to analyze procedural questions primarily in due process terms.
That approach will prove at best incomplete, eliding important issues raised by the privatization of the state’s dispute-resolution powers. For the same reasons, procedural due process also glosses over core features of ordinary civil litigation, which casts the state in a supporting role as often as a leading one.
The prescription, as this Article has sought to demonstrate, is a greater focus in civil procedure scholarship on liberal political theory and its account of political power. Scholars commonly turn to liberal political theory to understand other areas of the law, particularly constitutional law
and criminal law.
And it has even made some significant inroads into civil procedure, as scholars have invoked liberal-democratic values to justify various aspects of civil litigation.
But liberal political theory’s account of political power has been virtually absent from debates about the privatization of civil justice. That is unfortunate. Civil procedure is one of the primary ways political power gets exercised in our society. As such, it raises all the same questions that attend the exercise of political power in any other institutional setting—the boundary between public and private foremost among them. At the same time, civil procedure inflects these age-old questions with its unique division of labor between private parties and state officials. Liberal political theory can thus help us to more fruitfully conceptualize some of the problems with recent procedural trends, as well as to more readily apprehend the solutions our civil justice system already has to offer.