VOLUME 169, ISSUE 4 March 2021

Policing imposes serious and extensive harms, from shootings and nonlethal uses of force, to stops, searches, arrests, and incarceration. And many of these harms involve pervasive racial disparities. Scholars and advocates tend to see these harms as collateral to policing and seek to address them with “harm-regulating” tools such as civil rights suits, prosecution of police offcers, elimination of quali"ed immunity, more Department of Justice investigations, civilian review boards, and the like.

“Legal tech” is transforming litigation and law practice, and its steady advance has tapped a rich vein of anxiety about the future of the legal profession. Much of the resulting debate narrowly focuses on what legal tech portends for the professional authority, and profitability, of lawyers. It is also profoundly futurist, full of references to “robolawyers” and “robojudges.” Lost in this rush to foretell the future of lawyers and their robotic replacements is what should be an equally important, and also more immediate, concern: What effect will legal tech’s continued advance have on core features of our civil justice system and, in particular, the procedural rules that structure it? Tackling that question, this Article seeks to enrich—and, in places, reorient—the budding debate about legal tech’s implications for law and litigation by zeroing in on the near- to medium-term, not out at a distant, hazy horizon. It does so via three case studies, each one exploring how specific legal tech tools (e-discovery tools, outcome- prediction tools, and tools that perform advanced legal analytics) might alter litigation for good and ill by shifting the distribution of costs and information within the system. Each case study then traces how a concrete set of civil procedure rules—from Twombly/Iqbal’s pleading standard and the work product doctrine to rules and doctrines that govern forum-shopping—can, or should, adapt in response. When these assorted dynamics are lined up and viewed together, it is not a stretch to suggest that legal tech will remake the adversarial system, not by replacing lawyers and judges with robots, but rather by unsettling, and even resetting, several of the system’s procedural cornerstones. The challenge for courts—and, in time, for rulemakers and legislators—will be how best to adapt a digitized litigation system using civil procedure rules built for a very different, analog era. This Article aims to jumpstart thinking about that process by identifying the principal ways that legal tech will reshape “our adversarialism” and mapping a reform and research agenda going forward.

Significant numbers of federal appellate decisions are missing from Westlaw and Lexis. Bloomberg Law has similar, and similarly incomplete, coverage. Across most of the circuits, at least twenty-five percent or more of the courts’ self-reported merits terminations, which predominately include unpublished decisions, never make their way to these databases. Since at least 2007, when a rule change permitted citation to unpublished decisions from the federal appellate courts, scholars widely have assumed that commercial databases for legal research capture nearly all—if not, in fact, all—federal appellate merits decisions whether designated for publication in the Federal Reporter or not. Although scholars have long considered how publication practices shape access to court decisions—especially at the district court level—this is the first work to analyze and document widespread shortcomings of commercial database access to unpublished federal appellate decisions.

Few aspects of administrative law are as controversial as the major questions doctrine—the exception to Chevron deference that bars courts from deferring to an agency’s otherwise reasonable interpretation of an ambiguous statute where doing so has extraordinary policy implications. Proponents of the major questions doctrine believe that the nation’s most significant questions should be decided by Congress, not agencies. The doctrine’s critics, however, counter that there is no sound reason to treat major questions differently from ordinary questions, if such a distinction even exists. The elevation of Justices Neil Gorsuch and Brett Kavanaugh, two major proponents of the major questions doctrine, has reignited the debate. Both the doctrine’s friends and foes expect that the Supreme Court will soon begin more aggressively targeting major questions.