Managerial Judging and Substantive Law

Tobias Barrington Wolff 

University of Pennsylvania Law School
September 6, 2013

Washington University Law Review, Vol. 90, p. 1027, 2013
U of Penn Law School, Public Law Research Paper No. 13-20 
Abstract:      
The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.

In this Article, I examine the interface between substantive law and managerial judging. The Article sets forth a mode of analysis that grounds the powers of district judges in a richer account of the role that substantive legal policy can and should play in defining those powers, using three current or recent disputes as points of reference: the ruling of the Supreme Court of the United States on class certification and Title VII in Walmart v. Dukes; the 9/11 first responders litigation overseen by Judge Alvin Hellerstein in the Southern District of New York; and the joinder disputes surrounding the swarm download copyright cases that are now being filed in district courts around the country.

Number of Pages in PDF File: 44

Keywords: civil procedure, complex litigation, class actions, 9/11, copyright, procedure, judges, judging, managerial judging, Rule 23, Title VII, employment discrimination, swarm download, joinder, WalMart, Dukes, Rules Enabling Act, public law, private law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2321633