The Fordham Law Review’s annual spring symposium assembled an outstanding lineup of Civil Procedure scholars and legal practitioners from across the country on Feb. 23 to share analysis and predictions on “Civil Litigation Reform in the Trump Era: Threats and Opportunities.”
The conference’s genesis resulted from a set of aggressive federal legislative proposals the House of Representatives passed during the first year of the Trump presidency, Fordham Law Dean Matthew Diller informed the audience during his opening remarks. Civil Procedure scholars quickly opposed the proposals, but they nonetheless raised many questions about what civil litigation reform should look like moving forward.
“If you want to really talk about what’s critical to securing the freedoms in our society at this moment, it’s the subject we’re talking about today,” said Diller, who described himself as a “recovering” Civil Procedure professor. “Our rights and freedoms are dependent in real concrete, meaningful ways on the ability of individuals to access redress and seek a remedy through our judicial system. It’s that simple.”
Fordham Law School has a long tradition of focusing on a wide range of civil justice issues, Diller added, citing the work of the Fordham Law Review, Stein Center for Law and Ethics, and, most recently, the A2J Initiative.
Fordham Law Professor Howard Erichson counted himself among the early and outspoken critics of the package of civil justice reforms that passed through the House and is now awaiting Senate action. Like almost everything else in the Trump era thus far, the reforms ignited a battle—this time between the Chamber of Commerce and civil rights groups/consumer advocates. Yet, one of the pleasures of Civil Procedure, according to Erichson, is its ability to sometimes transcend politics.
“It’s possible to think about it in a way that is not simply what’s good for plaintiffs or what’s good for defendants, but to think about in a way of what’s more likely to accomplish justice in an efficient, sensible way,” the professor explained, noting he was certain this approach was naïve but that naiveté had sustained him for a long time.
In the day’s second panel, “Understanding the Current Legislative Proposals,” Erichson outlined several notable congressional attempts at civil litigation reform in the past year, including H.R. 985 Fairness in Class Action Litigation Act, H.R. 720 Lawsuit Abuse Reduction Act, and H.R. 725 Innocent Party Protection Act.
“Even if you conclude, as I do, that mostly this is a basket of bad ideas, I want to be open to the possibility that in the basket there are some good ideas, or at least problems that need to be addressed,” Erichson said, explaining that the challenge stemmed from distinguishing ideas that represented the wish lists of corporate defendants from those that would benefit the civil justice system.
The day’s opening panel, “Understanding the Landscape: Rights and Retrenchment in the Trump Era,” provided attendees a historical and institutional perspective on civil justice, to illustrate that what’s happening now—rather than representing a brand new phenomenon—is actually an iteration of things that have happened before. Fordham Law Professor Benjamin C. Zipursky moderated.
The day’s two afternoon panels addressed “Multidistrict Litigation Reform: The Looming Fight for the Soul of MDL” and “The Bigger Picture: State and Federal Civil Litigation Reform.” MDL is “a huge area for reform” on the agenda for both Congress and the Advisory Committee on Rules of Civil Procedure, Erichson noted in his conference opening remarks. The day’s final panel analyzed events in state courts, where the vast majority of civil litigation happens, and the pressure nationwide injunctions place on class actions and other processes. Notably, the Hon. Lee Rosenthal, chief judge of the U.S. District Court for the Southern District of Texas, shared her insights on both afternoon panels.
Papers from the spring symposium will be published by the Fordham Law Review in fall 2018. The Fordham Law Review is the ninth most cited law review in other legal journals and seventh most cited law review in judicial decisions, according to a recent study by Washington & Lee University.
Photos by Ray Legendre.