VOLUME 169, ISSUE 8 August 2021


It is a great honor and a great pleasure to have the opportunity to say a few words about one of the most consequential scholars of civil procedure and the federal courts in the country. No one can do justice to the breadth of Professor Burbank’s more than forty-year span of work, and I know better than to try. A remarkable group of scholars and practitioners has gathered for this festschrift, and I will leave it to them to highlight his particular contributions to different aspects of the law.


The Hague Convention on Choice of Courts Agreements (“Convention” or “Choice of Court Convention”) aspires to be one of the most significant private international law treaties of this century. The Convention would substantially alter existing rules in many jurisdictions, including the United States, governing the recognition and enforcement of both international choice-of-court agreements and judgments obtained in proceedings based on such agreements. The Convention’s drafters and other proponents promote it as replicating both the terms and success of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”), transposed to cross-border forum selection agreements.
We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal. We first describe the role that pleading was intended to play in the original (1938) Federal Rules of Civil Procedure, review the Court’s decisions in Twombly and Iqbal, and offer a brief discussion of common themes in normative scholarship that is critical of Twombly and Iqbal, including the claim that they threaten to amplify ideological and subjective decision-making, particularly in civil rights cases.
Federal courts routinely apply state law. In diversity cases, federal courts apply the state law that the forum state would apply—the so-called Klaxon rule. Outside of diversity, the vitality of Klaxon is far less clear. Federal courts have departed from Klaxon when applying state law in cases arising under bankruptcy, admiralty, the Foreign Sovereign Immunities Act, and more. Scholars have called for courts to abandon Klaxon in cases arising under the Class Action Fairness Act (CAFA) or consolidated as multidistrict litigation (MDL).
This Essay, written for a festschrift celebrating the career and contributions of Stephen Burbank, grapples with the procedural implications of the steady advance of digital legal technologies, or “legal tech,” within the civil justice system. From AI-fired tools that perform e-discovery and predict case outcomes to the migration from in- person to “virtual” proceedings accelerated by the COVID-19 pandemic, few would disagree that civil litigation in 2030 will look different than it did at the start of 2020. Proceeding from this core insight, this Essay sketches two types of procedural reckonings that lie ahead as new digital technologies move from the periphery to the center of the civil justice system. One I call traffic rules—rules that determine how and when parties are moved from in-person court proceedings to new online fora. Second are information rules that govern the availability, exchange, and use of information in a fast-digitizing litigation system that will produce more and more of it, but often in unevenly distributed ways. At least initially, and for reasons Professor Burbank has long identified, the process of adapting analog versions of these traffic and information rules to a digital world is likely to remain the province of judges, particularly trial judges operating within the considerable pools of discretion American procedure affords them. But in time, digitization will place significant pressure on American ways of procedure-making. As judges decide how much to weigh party consent in moving parties online, which machine outputs are protected work product, or which cases to push to online dispute resolution (ODR) platforms and with what algorithmic tools to inform parties about their likely prospects in court, the question will be whether judges can tailor old rules to new digital contexts or whether more sweeping changes to those rules, or even entirely new governance and oversight regimes, might be warranted. In making these decisions, judges—and, in time, rulemakers and legislators—will help chart the digital future of the civil justice system.
Federal judges have too many options for deferring to foreign courts, none of them particularly good. Not only have judges developed at least five different bases for declining to hear transnational cases, but the use of these bases also varies significantly from circuit to circuit. The courts of appeals have split over whether to recognize foreign relations abstention or prudential exhaustion, and they have developed different tests for assessing foreign parallel proceedings. Even with forum non conveniens, where the Supreme Court has provided clearer guidance, circuit practice has diverged. Thus in two recent transnational tort cases stemming from the Fukushima nuclear disaster in Japan, a district court in the First Circuit dismissed on a discretionary basis that a district court in the Ninth Circuit had rejected, while the district court in the Ninth Circuit dismissed on a discretionary basis not yet recognized by the First Circuit.
In 1999, Professor Stephen Burbank wrote an article entitled The Architecture of Judicial Independence.1 It is a foundational piece that gave structure to what was then an understudied field. At the heart of that article is a profound insight: stable and enduring judicial systems are the product of forces in constructive tension. Thus, in the context of judicial administration, Burbank conceptualized judicial independence with reference to judicial accountability, and characterized pressure points in the relationship between them as complementary, not contradictory; and in later work, he made a similar point about the interplay between the law and policy in judicial decisionmaking. I could pay homage to Steve in this symposium by praising his many contributions to our understanding of judicial administration and decisionmaking. But I did that recently in the online edition of this law review,2 and I am concerned that if I gave his ego yet another pump, his head would pop and deflate when he cut himself shaving. Instead, my ambition for this Article is to honor Steve’s scholarly legacy by emulating his approach to illuminate the architecture of an under-theorized subset of the judicial independence and accountability literature: judicial ethics.
diverse and expansive set of writings spanning several decades, Burbank has drawn on a wide range of disciplines and methods in approaching key questions of procedure. Masterful at delivering rigorous and precise legal analysis, he has also acquired deep knowledge and sophistication in a range of allied fields, including history and political science. This has enabled him to utilize various qualitative and quantitative methods in pursuit of the deeper social meaning and purposes of the law. As he has insisted, “the technical reasoning required to be a master of doctrine is a necessary condition for . . . good scholarship about procedure,” but “it is not a sufficient condition.”1 For those who “seek to understand law’s significance,” it is vital to gain “perspectives in addition to the internal logic of technical reasoning”2—and these can be supplied only by turning to disciplines beyond the law, “including history, empiricism, and . . . political science.”3
Despite famously being called, merely, “one among equals,” the Chief Judge of a federal court of appeals plays a significant role on their court. Internally, the Chief Judge is responsible for everything from overseeing the circuit’s budget to influencing how the court’s sitting calendar is set, from selecting judges who will sit by designation to reviewing complaints of misconduct against judges in their circuit. Externally, the Chief Judge serves as the court’s representative to the Judicial Conference of the United States, the national policy-making body for the federal courts. Outside of official duties, the Chief Judge may initiate projects, which are carried out in the name of their court. One might well say that the Office of the Chief Circuit Judge “contains multitudes.”
A prominent federal judge who knows the field well suggested that I immerse myself in Steve Burbank’s work when I started as a civil procedure scholar and teacher. “Burbank could have dined out his whole career on the Enabling Act history alone,” I recall the judge telling me. This advice was sound for reasons that went well beyond scholarly inspiration. The judge’s advice prompted me to send Professor Burbank an e-mail asking for feedback on one of my first articles. I had hoped for just enough of a response to warrant including his name in the article’s acknowledgments. I could never have imagined all that followed. Professor Burbank has given me years of generous, undeserved mentorship. By his example, he has shown me time and again how a revered colleague draws on a rich reservoir of professional capital to build a national community of scholars. His guidance and friendship have enriched my career beyond measure. I am deeply honored to contribute to this Festschrift.
This Essay takes its title from Professor Eric Foner’s 2019 Pulitzer Prize winning book The Second Founding.1 Foner’s book traces the development and adoption of the thirteenth, fourteenth, and fifteenth Amendments and the ensuing Reconstruction experience that endured until the election of 1876, a brief period that seemed to permit something approaching equality (at least for men) in the South. In that sense, these political developments could have amounted to a “second founding” to build on and move beyond the Revolutionary War and original adoption of the Constitution. As we all know too well today, that promise was extinguished around 1877, and during the rest of the 19th century the nation instead saw the rise of Jim Crow laws, paramilitary domestic terrorism managed by groups like the Ku Klux Klan, and stasis for at least three quarters of a century in racial justice. Indeed, as recent events in this country show, that stasis has not been left entirely behind.
Written for a symposium honoring Steve Burbank’s contributions to procedure scholarship, this Essay takes Geoff Hazard’s monograph, Research in Civil Procedure, as its point of departure. Hazard was remarkably prescient in forecasting our modern predicament, posing timeless questions about the role of history and doctrine, the emphasis on normative claims and law reform, the centrality of legal theory, and the rise of empirical and other discipline-based scholarship. After surveying the challenges facing legal scholars, procedural and otherwise, the Essay concludes with a note of appreciation for Burbank’s ability to couple a command of doctrinal nuance with sophisticated empirics in crafting a powerful account of the variegated institutions of procedural law reform.
Modern American civil procedure seeks to be clear, fair, and rational. The goal of the Federal Rules of Civil Procedure, the centerpiece of modern procedural reform, was to eliminate arcane technicalities and get to the substantive issues. Consequently, the original drafters sought to streamline pleading, ensure the presence of properly interested parties, gather all the relevant facts, and enable courts to make well-founded decisions on the merits.1
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