Procedural Retrenchment and the States

Abstract

Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, arbitration, standing, personal jurisdiction, and international law. While I have much sympathy for many of these normative criticisms, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court’s decisions to limit court access, we could read these decisions instead as openings for state courts and public enforcement. Many of the aforementioned decisions are not binding on state courts, and many states have declined to follow them. This Article documents state courts departing from Twombly and Iqbal on pleading, the Celotex trilogy on summary judgment, Wal-Mart v. Dukes on class actions, and Supreme Court decisions on standing and international law. Similarly, many of the highly criticized procedural decisions do not apply to public enforcement, and many public suits have proceeded where private litigation would have failed. This Article documents successful state-enforcement actions where class actions could not be certified, where individual claims would be sent to arbitration, where private plaintiffs would lack Article III standing, and where personal jurisdiction could not be secured. In sum, this Article evaluates state-court and state-enforcement responses to the Roberts Court’s procedural decisions, and suggests further interventions by state courts and public enforcers that could offset a regression in federal-court access. At the same time, this analysis also points up serious challenges for those efforts, and it offers reasons to be cautious about the politics of state procedure and enforcement.