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The Ink of the Letter of the Law: Questions for Stephen Burbank

January 14, 2011

Q&A by Kevin Harnett. Reprinted from The Pennsylvania Gazette.

Stephen Burbank. Photograph © Greg Benson Civil procedure – the rules courts follow when handling lawsuits – used to be regarded as boring and beside the point. The fact that it's now understood as central to what a law means in practice is due in no small part to the scholarship of Stephen Burbank, the David Berger Professor for the Administration of Justice.

Burbank's interdisciplinary work – joining law, history, and political science – has shown how seemingly esoteric changes in the Federal Rules of Civil and Criminal Procedure can have a profound impact on the way the courts deliver justice, and how in recent times a more assertive Congress has seized on this form of "backdoor" lawmaking.

Take, for example, the Class Action Fairness Act of 2005, the first major legislation of George W. Bush's second term. While the act did not explicitly limit Americans' right to sue, Burbank notes, it shifted class-action suits in excess of $5 million from state courts to the more complex federal courts, a move that critics charged would have the de facto effect of protecting corporations by making such litigation harder to pursue.

Here Burbank talks about the increasingly tumultuous relationship between law and politics, including the hyper-politicization of the Supreme Court, the dangers of a legal system jammed with lawsuits, and a few things Republicans learned from Democrats about exploiting the law for political gain.

He also takes a moment to talk about his other job – as Special Master to the National Football League – which will make him a pivotal figure over the next year as players and owners face-off over the fate of the 2011-2012 season.



You've written about the power of procedural rulemaking to determine the way a law functions in practice. Can you explain what you mean by that?

What people have realized, much more than used to be the case, is that even though there was a great deal of rhetoric about procedure as technical – as unimportant stuff that should be left to the experts – the fact is that in many rules of procedure there lies tremendous power. There's the story that may or may not be apocryphal that, I think it was [US Representative] John Dingell told one of his colleagues, "You write the substance and I'll write the procedure and I'll screw you every time." I believe that. Congress now understands that procedure can be very useful – in a political sense – to mask what are essentially substantive decisions.


In the recent midterm elections three state Supreme Court justices in Iowa were recalled because they'd ruled in favor of gay marriage. What do you make of the charge that these justices had acted as "legislators in robes"?

That's nonsense. I have no reason to believe they were doing anything other than faithfully interpreting the legal sources that were before them. It's very convenient for groups – and unfortunately it happens to usually be the Right these days – to pretend that law is easy to ascertain and that all a judge has to do, to use Chief Justice Roberts' unfortunate metaphor, is play an umpire... Anybody who knows baseball knows that umpires have different strike zones. The notion that all law is determinate is nuts, just as I think it's not helpful to pretend that all law is radically indeterminate.


Another place where politics has a big effect on the law is judicial appointments. Do you think the current Supreme Court is more ideological than previous courts?

More than it has been in the recent past, yes. Though one could certainly make the argument that the Warren Court was as ideologically tilted to the Left as the current court is ideologically tilted to the Right. The Right saw how effective the Left had been in using the courts to secure what they wanted when they couldn't get it from the legislature, and they decided to pay close attention to getting people of their political stripe put on the courts. They've been very successful in that.


Do you think the justices Obama appointed – Sotomayor and Kagan – are less ideological than the two Bush appointed – Roberts and Alito?

Oh yes, absolutely. Note that in terms of the politics of federal judicial appointments, if one party is nominating middle-of-the-road candidates it becomes pretty easy to focus on the few that seem to be left-of-center or maybe even further than that and block them. But if the other party is nominating only hard-right judges, there are only so many that you can block.


New topic. Beginning in the 1970s the volume of private litigation in the US ballooned. Why was this?

The 800-pound gorilla in this landscape is the class action. The class action is not by and large a legal instrument that is provided by statute, or regulated by statute. It is the result of this rulemaking process that I was talking about. Like all of the federal rules, or almost all of them, the class-action rule was written to apply to all types of cases. If you add the power of the class action to the private enforcement regime that's already in place, you can have a very powerful vehicle for enforcement – which can lead in some circumstances to over-enforcement. It's a problem.


Litigation has also increased tremendously in complexity over the past few decades. Do you think this has created a barrier to justice?

I don't think there's any question about it. It's really a scandal, a scandal. If you're looking for causal explanations, there are a lot of them. They certainly include the pretty chronic under-funding of the courts, questions about the adequacy of alternatives to the courts – particularly arbitration – and the failure of imagination on the part of people responsible for providing viable alternatives to the state of nature.

One of the things I recommend is something that the federal rulemakers have refused to do for decades: the creation of at least one separate track for simple cases. You wouldn't get very much discovery, but what you would get would be a realistic chance of a trial.
 

It seems to favor the powerful when litigation becomes more complex and the courts are underfunded. Do you think this situation is incidental or were interest groups behind it?

I think there is some of that. People don't like to think about it, but [there's] the old saying: a right without a remedy is worthless. Throughout the world many lawmaking bodies create rights without providing the mechanisms that are necessary for the enjoyment of those rights.


Turning to football. You are the special master to the NFL. Special master is not a designation a lot of people are familiar with – can you explain it?

A special master is somebody appointed by a court, in this case a federal court, to perform certain tasks as specified by the court. The special master who was appointed by the court – on the joint recommendation of class council, which is the union, and the league – resolves certain types of disputes which, roughly put, relate to or might be thought to implicate the concerns underlying the claims made in the NFL antitrust litigation [of the early-1990s]. Thus for instance the special master resolves questions that have to do with free agency.


You've stayed with the job for eight years — what do you like about it?

It's interesting, and obviously, students particularly think it's very sexy until – as happened on one occasion at least – I've secured the agreement of the parties to have some students sit in on the hearings, and they find out that what it involves is usually very hard questions of contract interpretation. The Collective Bargaining Agreement is a long, complex document and both sides have extremely good lawyers, which means that they have the good sense to settle most of the disputes they have. The ones that I see are only the hardest disputes, either in terms of doubts about what the proper answer is, or hard in the sense of very difficult for their client to accept.


Your first case as Special Master involved the All-Pro wide receiver Terrell Owens, and whether he could be traded to the Eagles. Do you hear from fans when you decide disputes like that?

I get emails encouraging me to rule one way or the other, or if they don't like a ruling, saying, You idiot! How could you rule like this?