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Legal Strategies pp 41–87Cite as

A Theory of Legal Strategy

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Abstract

By the conventional view, case outcomes are largely the product of courts’ application of law to facts. Even when courts do not generate outcomes in this manner, prevailing legal theory casts them as the arbiters of those outcomes. In a competing strategic view, lawyers and parties construct legal outcomes in what amounts to a contest of skill. Though the latter view better explains the process, no theory has yet been propounded as to how lawyers can replace judges as arbiters. This chapter propounds such a theory. It classifies legal strategies into three types: those that require willing acceptance by judges, those that constrain the actions of judges, and those that entirely deprive judges of control.

Strategies that depend upon the persuasion of judges are explained through a conception of law in which cases and statutes are almost wholly indeterminate and strategists infuse meaning into these empty rules in the process of argumentation. That meaning derives from social norms, patterns of outcomes, local practices and understandings, informal rules of factual inference, systems imperatives, community expectations, and so-called public policies. Constraint strategies operate through case selection, record making, legal planning, or media pressure. Strategists deprive judges of control by forum shopping, by preventing cases from reaching decision, or by causing them to be decided on issues other than the merits. The theory presented explains how superior lawyering can determine outcomes, why local legal cultures exist, how resources confer advantage in litigation, and one of the means by which law evolves.

Reprinted with permission from Duke Law Journal.

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Notes

  1. 1.

    K.N. Llewellyn, The Bramble Bush: On Our Law and Its Study (Oceana Publications, 1960) 14 [Llewellyn, The Bramble Bush]. Llewellyn’s reference was to statutes banning resale price maintenance contracts. In those contracts, retailers agreed not to sell the manufacturers product for a price less than that specified in the contract.

  2. 2.

    The conventional view is typically described in terms such as these: “The common-law decisional process starts with the finding of facts in a dispute by a fact-finder, be it a jury, judge, or administrative agency. Once the facts are ascertained, the court compares them with fact patterns from previous cases and decides if there is sufficient similarity to warrant applying the rule of an earlier case to the facts of the present one.” R.J. Aldisert, Logic For Lawyers: A Guide to Clear Legal Thinking (Contemporary Medical Education, 1992) 2–4; The breadth of acceptance of the conventional view is illustrated in Marc Galanter’s classic article on why the “haves” come out ahead. Although Professor Galanter ultimately argues for a partially strategic explanation of case outcomes, he begins by starkly assuming the conventional view as a frame of reference: “This society has a legal system in which a wide range of disputes and conflicts are settled by court-like agencies which purport to apply pre-existing general norms impartially (that is, unaffected by the identity of the parties) … The rules applied by the courts are in part worked out in the process of adjudication (courts devise interstitial rules, combine diverse rules, and apply old rules to new situations). There is a living tradition of such rule-work and a system of communication such that the outcomes in some of the adjudicated cases affect the outcome in classes of future adjudicated cases.” M. Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change” (1974) 9 Law & Society Rev. 96 [Galanter, “Why the ‘Haves’ Come Out Ahead”]. That the primary objective of a player in Galanter’s model is to win rules of law favourable to its side, suggests their centrality.

  3. 3.

    See for example, F. Schauer, “Easy Cases” (1985) 58 S. Cal. L. Rev. 426–438 [Schauer], arguing that the textual language and precedent of the law limit its permissible interpretations.

  4. 4.

    See for example, M.D. Rosen, “Nonformalistic Law in Time and Space” (1999) 66 U. Chi. L. Rev. 623, “‘Standards’ are laws that describe a triggering event in abstract terms that refer to the ultimate policy or goal animating the law.” Nearly all academics subscribe to one or the other version of the conventional view. See for example, R.H. Pildes, “Forms of Formalism” (1999) 66 U. Chi. L. Rev. 620, “To be sure, as Hart and Sacks recognized, there is much at stake in our age over whether the central products of our modern legal system – statutes – are read literally or purposively.”

  5. 5.

    See for example, F.S. Cohen, “Transcendental Nonsense and the Functional Approach” (1935) 35 Colum. L. Rev. 842–847, presenting a “theory of legal decisions” that assumes social forces are given effect through the judge.

  6. 6.

    But see T.M. McDonnell, “Playing Beyond the Rules: A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems” (1998) 67 UMKC L. Rev. 290–300, rejecting formalism and proposing in consequence that law schools teach students to research judges, lawyers, and other participants in litigation.

  7. 7.

    See for example, L. Katz, “Form and Substance in Law and Morality” (1999) 66 U. Chi. L. Rev. 566 [Katz], presenting six “familiar examples” of controversial legal strategy); See also 595, concluding that “[l]awyers routinely exploit law’s formality.”

    As employed in this Article, “strategy” has been defined as “the art of devising or employing plans or stratagems toward a goal.” Merriam-Webster’s New Collegiate Dictionary, 10th ed. (1996) 1162. A “stratagem” is “a cleverly contrived trick or scheme for gaining an end.” ibid, see also H.D. Lasswell, and M.S. McDougal, Jurisprudence for a Free Society (1992) 1046 [Lasswell and McDougal], “A strategy is a sequence of practices in which base values are utilized to influence outcomes and effects.”

  8. 8.

    For example, Dow Corning is settling the breast implant cases for over $2 billion even though the scientific evidence seems clear that silicon cannot cause the injuries claimed. See G. Kolata, “A Case of Justice, or a Total Travesty? How the Battle over Breast Implants Took Dow Corning to Chapter 11” N.Y. Times, (13 June 1995) D1, stating that there is no scientific evidence that implants cause serious disease.

  9. 9.

    See generally for example, J. Harr, A Civil Action (Vintage, 1995) [Harr], demonstrating that financial pressures on plaintiffs’ attorneys made it virtually impossible for them to take a case to trial.

  10. 10.

    See for example, W.T. Pizzi, and W. Perron, “Crime Victims in German Courtrooms: A Comparative Perspective on American Problems” (1996) 32 Stan. J. Int’l L. 46, referring to the American legal strategy of “attacking the victim’s character while keeping the defendant’s prior record away from the jury.”

  11. 11.

    Only an omniscient observer could attest that a guilty person had been set free. But skilled defense lawyers have freed defendants against whom the evidence could hardly have been more compelling. See for example, W.W. Hodes, “Lord Brougham, The Dream Team, and Jury Nullification of the Third Kind” (1996) 67 U. Colo. L. Rev. 1077, arguing that O.J. Simpson’s lawyers did not act unethically in obtaining his acquittal even though the evidence suggested guilt; See also J. Mathews, “DeLorean Acquitted of All Eight Charges in Drug-Scheme Trial” Wash. Post, (17 Aug. 1984) A1, reporting that John Z. DeLorean was acquitted of all charges even though he was “caught on videotape discussing cocaine deals with government agents posing as drug dealers”; See also J. Needham, “The Lure of Fame, Fortune; Bruce Cutler Defended a Mob Don; Now a High-Profile Case Brings Him West” L.A. Times, (28 Apr. 1992) E1, noting that John Gotti, the head of the Gambino crime family, was acquitted all three times that Bruce Cutler defended him but convicted in a case in which the court barred Cutler from representation.

  12. 12.

    See generally D.B. Baum et al., Advanced Negligence Trial Strategy (Practicing Law Institute, 1979) 83–98, providing a sample opening statement presented in an actual products liability case; See also X. Frascogna, Negotiation Strategy for Lawyers (Prentice-Hall, 1984), providing “a comprehensive treatment of the various patterns, principles and techniques that govern negotiation in the context of a law practice”; See also S.N. Gazan, Encyclopedia of Trial Strategy and Tactics (Prentice-Hall, 1962) 75, describing the importance of a trial lawyer’s knowledge of psychology to defense jury selection strategy; See also C. Rothenberg, Matrimonial Litigation: Strategy and Techniques (1972), discussing strategies for selecting a jury that would likely be more favourable to a plaintiff seeking divorce. There are also entire periodicals devoted to legal strategy. See generally for example, Bankruptcy Strategist, Computer Law Strategist, Corporate Tax Strategy, The Journal of Strategy in International Taxation, Deposition Strategy: Law and Forms, Employment Law Strategist, and Intellectual Property Strategist.

  13. 13.

    See below Part 4.4.

  14. 14.

    Another part of the explanation is the understandable reluctance of lawyers who engage in strategy to admit that they do so. The use of strategy is often condemned as unethical, see below Part 4.5, and the articulation of strategy tends to destroy its effect, see W.O. Weyrauch, and M.A. Bell, “Autonomous Lawmaking: The Case of the ‘Gypsies’” (1993) 103 Yale L.J. 379 n. 243 [Weyrauch and Bell]. Together, these two factors remove practicing lawyers – the persons most knowledgeable about strategy – from the discussion of its role in the legal system.

  15. 15.

    But see Lasswell and McDougal (n 7) 1067–1073, listing strategic decisions made by lawyers during litigation; Katz (n 7), arguing that strategy operates in the realm of law in essentially the same manner that it operates in the realm of morality.

  16. 16.

    See for example, “Professional Responsibility: Report of the Joint Conference” (1958) 44 A.B.A. J. 1161, distinguishing vigorous advocacy from “muddy[ing] the headwaters of decision”; But also see J. Frank, Courts on Trial: Myth and Reality in American Justice (Princeton University Press, 1949) 82–90 [Frank], describing adversarial presentation in terms of strategy and tactics.

  17. 17.

    See D. Farole, “Reexamining Litigant Success in State Supreme Courts” (1999) 33 Law & Soc’y Rev. 1043–1058 [Farole] for review of the literature. This literature often refers to “legal strategy” as the means by which skilled lawyers influence outcome, but it does not attempt to explain what the skilled lawyers do to influence outcome. See for example, S.C. Tauber, “The NAACP Legal Defense Fund and the U.S. Supreme Court’s Racial Discrimination Decision Making” (1999) 80 Soc. Sci. Q. 326, referring to “skillful legal argument” and “compelling legal argument.”

  18. 18.

    See Galanter, “Why the ‘Haves’ Come Out Ahead” (n 2); See also below Part 4.2; Legal strategy is not, of course, the only thing that may be in the black box driving outcomes.

  19. 19.

    Professor C. Williams has dubbed this view the “law as price” view of law and criticised it as an attitude toward compliance. See C.A. Williams, “Corporate Compliance with the Law in the Era of Efficiency” (1998) 76 N.C. L. Rev. 1267–1268. The point we make here is unaffected by hers.

  20. 20.

    See K. Basu, The Role of Norms and Law in Economics: An Essay of Political Economy, (1997) 15–17 (unpublished, on file with the Duke Law Journal) [Basu], arguing that judges should be regarded as players in the economic game.

  21. 21.

    See for example, Meacham Corp. v. United States, (1953) 207 F.2d 544 (4th Cir.), “[T]hey employed the New York lawyers to find a way through the stone wall of the statutes….”

  22. 22.

    See below Part 4.2.

  23. 23.

    See below Part 4.3.

  24. 24.

    See below Part 4.4.

  25. 25.

    Whether an issue constitutes the merits or is merely procedural or tangential is itself frequently the subject of legal strategy.

  26. 26.

    See for example, A. Davis, “How a Lawyer Turned Tables in Tobacco Case” Wall St. J., (4 Oct. 1999) B1, noting a speech by tobacco company lawyer William Hendricks III “about how prosecutors can be ‘mortally wounded’ when they decide to skirmish over legal and factual issues in court before indictments are handed up”; See also J. Gibeaut, “Another Broken Trust” A.B.A. J., (Sept. 1999) 41, describing the Indian trust case as “spinning out of control” as a result of discovery decisions and missed strategic opportunities. To the extent that cases are decided on the merits, they cannot “spin out of control” before their conclusion. Nor can an agreement to give discovery compromise them in any way.

  27. 27.

    See for example, D.A. Farber, “Legal Formalism and the Red-Hot Knife” (1999) 66 U. Chi. L. Rev. 604 [Farber], “A formalistic system puts a great premium on people (particularly lawyers) who are able to invent clever ways to manipulate the rules to produce desired outcomes”; See also Katz (n 7) 595, “Lawyers routinely exploit law’s formality.”

  28. 28.

    One of us has argued elsewhere that “[t]he outcome of a case can be predicted more accurately at the level of the whole case than at the level of the case-dispositive decisions within the case that supposedly produce the outcome.” See L.M. LoPucki, “Legal Culture, Legal Strategy, and the Law in Lawyers’ Heads” (1996) 90 Nw. U. L. Rev. 1527 [LoPucki, “Legal Culture, Legal Strategy”]. This “whole-case realism” puts a damper on what can be accomplished through legal strategy. It is also worth noting that the predictions of whole-case realism referred to are not made from law, but from community expectations regarding outcomes.

  29. 29.

    See (n 7) defining “strategy.”

  30. 30.

    See below Part 4.3, discussing the rise and fall of local legal cultures.

  31. 31.

    The term “social norm,” as we use it here, includes the “sense of appropriateness developed in the [legal] profession and the public over time [but not expressed in legal rules]” that Dworkin refers to as “legal principles.” R. Dworkin, Taking Rights Seriously (Harvard University Press, 1977) 40.

  32. 32.

    Broader definitions often include one or more of these. See for example, W.M. Reisman, Law in Brief Encounters (Yale University Press, 1999) 2, “The law of the state may be important, but law, real law, is found in all human relations, from the simplest, briefest encounter between two people to the most inclusive and permanent type of interaction”; See also Weyrauch and Bell (n 14) 326–329, including oral legal traditions within the meaning of “law”; See also Weyrauch, “Unwritten Law” (1999) Wash. & Lee L. Rev. 1236 [Weyrauch, “Unwritten Law”], suggesting that overreliance on written law “by Texaco’s lawyers contributed to, if not caused, the loss of the case” in Texaco Inc. v. Pennzoil Co., (1987) 729 S.W.2d 768 (Tex. App.), rev’d, 481 U.S. 1.

  33. 33.

    Some writers include written law within the category of social norms. See for example, W.K. Jones, “A Theory of Social Norms” (1994) U. Ill. L. Rev. 546, “For the present, I encompass all rules and standards, without regard to their origins or means of enforcement [within the definition of social norm]. The legal system provides important norms and usually stipulates sanctions for deviant behavior.”

  34. 34.

    O.W. Holmes, “The Path of the Law” (1897) 10 Harv. L. Rev. 460–461.

  35. 35.

    See Llewellyn, The Bramble Bush (n 1) 3: “This doing of something about disputes, this doing of it reasonably, is the business of law. And the people who have the doing in charge, whether they be judges or sheriffs or clerks or jailers or lawyers, are officials of the law. What these officials do about disputes is, to my mind, the law itself.”

  36. 36.

    R. Pound, “Law in Books and Law in Action” (1910) 44 Am. L. Rev. 19, describing the latter as “adjusting the letter of the law to the demands of administration in concrete cases.”

  37. 37.

    See L.M. LoPucki, “The Systems Approach to Law” (1997) 82 Cornell L. Rev. 488–491 [LoPucki, “The Systems Approach to Law”], describing the use of law, social norms, and physical constraints in the construction of law-related systems.

  38. 38.

    See LoPucki, “Legal Culture, Legal Strategy” (n 28) 1551–1555, explaining the term “delivered law.”

  39. 39.

    Ibid 1551.

  40. 40.

    See ibid 1516–1520; see also M.V. Tushnet, “A Note on the Revival of Textualism in Constitutional Theory” (1985) 58 S. Cal. L. Rev. 688, n. 24, arguing that “easy cases” do not exist in written law, but seem to exist “because the lawyers are socialized into and are part of a way of life that defines the cases as easy.”

  41. 41.

    See LoPucki, “Legal Culture, Legal Strategy” (n 28) 1504–1505, presenting this example in more detail.

  42. 42.

    See ibid 1500.

  43. 43.

    See Weyrauch and Bell (n 14) 326–333. See generally Weyrauch, “Unwritten Law” (n 32), describing the unwritten rules governing three isolated social units.

  44. 44.

    See Weyrauch and Bell, ibid 331, n. 16, postulating hypotheses about the relationship between informal private law and traditional state law.

  45. 45.

    See for example, M. Gulati and C.M.A. McCauliff, “On Not Making Law” (1998) 61 Law & Contemp. Probs. 161, noting with regard to the opinion publication practices of the federal courts of appeals that “the behavior of judges is primarily governed by internally generated norms that can be altogether different from the officially stated organizational rules.”

  46. 46.

    See R.C. Ellickson, Order Without Law (Harvard University Press, 1991) [Ellickson], arguing that social norms are capable of displacing law.

  47. 47.

    See for example, Schauer (n 3) 407, explaining that “the Constitution channels and constitutes American public and private life.”

  48. 48.

    But see Lochner v. New York, 198 U.S. 76 (1905) (Holmes, J., dissenting), “General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise.”

  49. 49.

    See for example, Hoffman v. Jones, (1973) 280 So. 2d 436 (Fla.), changing the law in Florida from contributory negligence to comparative negligence because “contemporary conditions must be met with contemporary standards.”

  50. 50.

    As Lawrence Friedman has put it, “what makes a theory or a strategy ‘persuasive’ or winning is culturally and historically determined.” Letter from L.M. Friedman, M. Rice Kirkwood Professor of Law, Stanford Law School, to W.O. Weyrauch, S.C. O’Connell Chair and Distinguished Professor, University of Florida College of Law (5 Aug. 1999) (on file with the Duke Law Journal).

  51. 51.

    See Ellickson (n 46) 69–81, describing a system of norms that addresses the same subject as section 841 of the California Civil Code-determining who pays the costs of boundary fences.

  52. 52.

    See D. Culp, “Whistleblowers: Corporate Anarchists or Heroes? Towards a Judicial Perspective” (1995) 13 Hofstra Lab. L.J. 112, noting that most whistleblowers “have been fired, blackballed from their industry or profession, and have suffered personal problems”; See also R.W. Painter, “Toward a Market for Lawyer Disclosure Services: In Search of Optimal Whistleblowing Rules” (1995) 63 Geo. Wash. L. Rev. 295, describing the present regime with regard to lawyers as “a mandatory nonwhistleblowing regime.”

  53. 53.

    U.C.C. §1-208 cmt. (1997), providing that the U.C.C. good faith requirement “has no application to demand instruments or obligations whose very nature permits call at any time with or without reason.”

  54. 54.

    See KMC v. Irving Trust Co., (1985) 757 F.2d 752, 760 (6th Cir.), applying U.C.C. §1-208 to require good faith in calling a demand note; See also J. Steinbeck, The Grapes of Wrath, (1939) 32–35, describing Oklahoma Depression-era farm repossessions as little different from theft of property.

  55. 55.

    See E.B. Rock, and M.L. Wachter, “The Enforceability of Norms and the Employment Relationship” (1996) 144 U. Pa. L. Rev. 1929, arguing that a clear norm forbids firing an employee without cause, despite the employee’s formal at-will status.

  56. 56.

    See for example, J.B. Cahill, “Title-Loan Firms Offer Car Owners a Solution That Often Backfires” Wall St. J., (3 Mar. 1999) A1, referring to auto-title lending as “legalized extortion.”

  57. 57.

    Professor Robert Burns describes the conventional view as follows: “The Received View understands the trial as a necessary institutional device for actualising the Rule of Law in situations where there are disputes of fact. The trial allows punishments to be imposed or civil wrongs to be righted only after a careful factual analysis of what actually occurred, specifically structured for the exclusive application of an established legal rule to the exclusion of other possible norms.” See R.P. Burns, “Some Realism (and Idealism) About the Trial” (1997) 31 Ga. L. Rev. 717.

  58. 58.

    See generally LoPucki, “Legal Culture, Legal Strategy” (n 28), arguing that legal culture determines mental models of law in lawyers’ heads which leads to differing laws in different communities.

  59. 59.

    The matter has been the subject of extensive debate. See A. D’Amato, “Aspects of Deconstruction: The ‘Easy Case’ of the Under-age President” (1990) 84 Nw. U. L. Rev. 251–256 [D’Amato], collecting sources. Our argument does not depend, however, on the outcome of that debate. Our statement in the text is what we consider to be the best explanation of the legal strategy phenomenon.

  60. 60.

    The empirical test of this proposition is whether one can find a real case or invent a realistic hypothetical in which no legal doctrine exists by which a court could reach the outcome that accords with the applicable social norms. Professor D’Amato makes this point another way, arguing that some cases appear easy to decide in accord with the written law only because no dispute exists. With respect to Lawrence Solum’s candidate for the irrefutable easy case – if a homeowner eats ice cream in the privacy of her home, it will not give rise to any legal action – D’Amato responds: “But there is no dispute here! No one is claiming that the homeowner has injured anyone else by eating ice cream, and hence there is no occasion to cite a legal rule that she may have violated. There is, in short, no ‘case.’ Professor Solum must supply us with a posited but real harm to someone resulting from the homeowner’s action in order to have a person who could make a claim against her.” D’Amato ibid 256. By a “dispute,” D’Amato obviously means the social basis for a dispute, and by an “injury” he must intend one socially recognised as a wrong. The “social” in this characterisation is a reference to social norms. Thus, D’Amato’s response to Solum’s example is that no legal doctrine supporting a contrary result should be expected, because no social norm supports the contrary result.

  61. 61.

    See Farber (n 27) 604, “Of course, the more counterintuitive the outcome – the more it violates what seems to be the purpose of the rule or runs against social norms – the harder the task [manipulation of written law] becomes and the more valuable are the [manipulation] skills involved.”

  62. 62.

    See K. Llewellyn, The Case-Law System in America, Michael Ansaldi trans. (University Of Chicago Press, 1989) 82–83, “Legal rules provide certainty in the affairs of people whose interests are affected by law if, in a lawsuit, they yield a result that accords with their real-life norms.” Professor Basu has reached essentially the same conclusion through economic analysis. See Basu (n 20) 15–17, arguing that law cannot reach outcomes unsupported by norms.

  63. 63.

    See below Part 4.3.

  64. 64.

    In some cases, the judge will not be sincere. He or she will use the supposedly binding force of the law as an excuse for doing what he or she is inclined to do anyway.

  65. 65.

    See below Part 4.3.5.

  66. 66.

    The difference is ultimately a product of the different forms in which the two kinds of rules exist. Because law is written and the procedures for changing it are cumbersome, those who administer it have introduced conflicting meta-rules that render it malleable with respect to any given case. An example of conflicting meta-rules are the rules of stare decisis and obiter dicta. The first holds that a court is bound to follow precedent. The second holds that statements made in decision that were not necessary to the decision are of no effect. A court that wishes to narrow a rule to exclude the case before it has merely to distinguish the precedent in some respect and then invoke the rule of obiter dicta to prevent the precedent from governing. The court that wishes to apply the rule to the case before it simply recites that whatever differences exist between the two cases are unimportant. See Llewellyn, The Bramble Bush (n 1) 74–75, discussing the ability of courts to employ this technique to expand or narrow precedents. There are many other examples of conflicting meta-rules. See for example, K.N. Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed” (1950) 3 Vand. L. Rev. 401–406 [Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed”], setting forth opposing canons of statutory construction.

  67. 67.

    See F.E. Cooper, Living the Law, (Bobbs-Merrill, 1958) 161 [Cooper, Living The Law], suggesting that “the initial impression counts more than all the rest of the argument.” But see W.C. Costopoulos, “Persuasion in the Courtroom” (1972) 10 Duq. L. Rev. 392–395, contending that the advantage will differ from case to case.

  68. 68.

    See LoPucki, “Legal Culture, Legal Strategy” (n 28) 1529–1532, describing pressures on lawyers to move matters along.

  69. 69.

    See ibid at 1516–1520.

  70. 70.

    See for example, F.H. Foster, “Towards a Behavior-Based Model of Inheritance?: The Chinese Experiment” (1998) 32 U.C. Davis L. Rev. 126, referring to “the much-criticized American tradition of judicial subterfuge, in which courts claim to follow statutory rules and testators’ intent rigidly but in fact manipulate equitable doctrines to effect estate distributions that comport with judges’ individual standards of fairness and justice.”

  71. 71.

    See Basu (n 20) 22, concluding that “[i]f a certain outcome is not an equilibrium of the economy, then it cannot be implemented through any law.”

  72. 72.

    See W.O. Weyrauch, “Taboo and Magic in Law” (1973) 25 Stan. L. Rev. 798–800, analogising “magic and magicians to law and lawyers.”

  73. 73.

    See for example, Holloway v. United States, (1999) 526 U.S. 1, 19 n.2 (Scalia, J., dissenting), noting that the doctrine of “scrivener’s error” gives the Court the authority to “correct” a statute that does not have a “plausible purpose.” Absent legislative history describing its purpose, any statute that is contrary to established social norms will appear to be without plausible purpose and hence an appropriate candidate for correction.

  74. 74.

    See for example, Berkowitz v. Home Box Office, Inc., (1996) 89 F.3d 27–28 (1st Cir.), describing district court pressures on parties to communicate their factual and legal theories; See also J.F. Edwards Constr. Co. v. Anderson Safeway Guard Rail Corp., (1976) 542 F.2d 1326–1327 (7th Cir.), appending a standing order on pretrial conferences ordering parties to stipulate to the “uncontested facts” and to recite their own versions of the contested facts.

  75. 75.

    See LoPucki, “Legal Culture, Legal Strategy” (n 28) 1531, indicating that lawyers who engage in such behaviour may become “ineffective in that community.”

  76. 76.

    See cases cited (n 74); See also Cooper, Living The Law (n 67) 43–50, addressing the importance of an attorney’s formulation of the issues to the final decision.

  77. 77.

    Thus, the ability to foresee the effects of admission may be the most valuable aspect of legal experience.

  78. 78.

    The “antecedent” of a rule is the “if” clause once the rule has been translated into an if–then statement. See (n 89) and accompanying text.

  79. 79.

    See Basu (n 20) 18, observing that “the law works … entirely through its influence on people’s beliefs and opinion[s].”

  80. 80.

    For example, Llewellyn states that “[i]f a statute is to make sense, it must be read in the light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is nonsense.” Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed” (n 66) 400.

  81. 81.

    See generally D. Kennedy, “Freedom and Constraint in Adjudication: A Critical Phenomenology” (1986) 36 J. Legal Educ. 518, describing the doctrinal and political constraints on judges phenomenologically.

  82. 82.

    Probably the best evidence of this belief are the repeated warnings that various actions will undermine that conventional view. See for example, Stretton v. Disciplinary Bd., (1991) 944 F.2d 142 (3d Cir.), confirming that “confidence of the public in the rule of law would be undermined”; See also M.C. Dorf, “Prediction and the Rule of Law” (1995) 42 U.C.L.A. L. Rev. 689, stating that use of a prediction model “would undermine the public’s confidence in, and its felt obligation to, the rule of law”; See also C. Fried, “The Supreme Court, 1994 Term-Foreword: Revolutions?” (1995) 109 Harv. L. Rev. 34, referring to the “rule of law to which the public is probably more devoted than to any specific constitutional doctrine or ruling”; See also N.K. Sethi, “The Elusive Middle Ground: A Proposed Constitutional Speech Restriction for Judicial Selection” (1997) 145 U. Pa. L. Rev. 723–724, declaring that “[l]itigants, especially those who do not prevail, must believe that judicial decisions are made on the basis of neutral criteria and are grounded on more than the judge’s personal feelings”; See also J.P. Stevens, “The Life Span of a Judge-Made Rule” 58 N.Y.U. L. Rev. 9, referring to “the risk of undermining public confidence in the stability of our basic rules of law”; See also F.K. Zemans, “The Accountable Judge: Guardian of Judicial Independence” (1999) 72 S. Cal. L. Rev. 632, claiming that “attacks on judicial activism are often stated in terms that appeal to public understanding of the importance of the rule of law that requires judges to base their decisions on the law.” The public’s belief in the rule of law coexists with its inconsistent belief that skillful lawyers can manipulate the system to reach virtually any result. See (n 8) and accompanying text.

  83. 83.

    See R. Haydock, and J. Sonsteng, Trial: Theories, Tactics, Techniques (West Group, 1991) 55, “Attorneys may have to put aside personal tastes and conform their dress to the standards of a community or judge so as to safeguard and promote the best interests of a client.”

  84. 84.

    See Frank (n 16) 82, “The lawyer considers it his duty to create a false impression, if he can, of any witness who gives [disadvantageous] testimony.”

  85. 85.

    See for example, P.L. Murray, Basic Trial Advocacy (Maine Law Book Co., 1995) 97–105, advocating story-telling in the opening statement; See also at 353–378, describing the use of dramatics, body language and rhetoric in the summation; P.B. Carlisle, “In Cold Blood and the Fine Art of the Opening Statement” (1999) Nov. Hawaii B.J. 9, advocating theme and repetition in opening statements; See also E.A. Gonzalez, “Creating and Developing Winning Themes and Arguments” (1988) Feb. Fla. B.J. 53, “[Y]our trial plan should be built around a theme that will define the case and will allow the jury to rally around that theme.”

  86. 86.

    K.J. Delaney, Strategic Bankruptcy: How Corporations and Creditors Use Chapter 11 to Their Advantage (University of California Press, 1992) 167–168, discussing “linguistic strategies” that can help “legitimate the claim to bankruptcy”; See also 161, providing an example.

  87. 87.

    See R.J. Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking (C. Boardman Co., 1989) 1–2, equating logical reasoning with thinking like a lawyer.

  88. 88.

    See for example, W.O. Weyrauch, “Legal Practice as Search for Truth” (1985) 35 J. Legal Educ. (book review) 128–129, discussing Viehweg’s advocacy of argument “based on multiple, perhaps overlapping or even contradictory, points” so that “failure of one point leaves the others intact.” Logical arguments are relatively weak in the legal context because they proceed in an orderly fashion from their premises to their conclusions. Successful attack on a single element destroys the entire argument. Their order alerts decision-makers and opponents to each argument’s points of vulnerability. A generally more effective alternative is to make emotionally appealing suggestions, leaving it to the decision-maker to choose among them and construct the arguments. Law professors will recognise this approach as one often employed by students on examinations, commonly referred to as “shotgunning.”

  89. 89.

    Even a standard that limits choices without compelling a single one logically can be recast as a rule that permits particular choices but bars others. The idea that any statute can be expressed as an if–then statement without changing its meaning originated with Layman Allen. See L.E. Allen, and C.R. Engholm, “Normalized Legal Drafting and the Query Method” (1978) 29 J. Legal Educ. 402–403, describing statutes as if–then statements; See also G.B. Gray, “Reducing Unintended Ambiguity in Statutes: An Introduction to Normalization of Statutory Drafting” (1987) 54 Tenn. L. Rev. 436–444, providing examples of statutes expressed as if–then statements. According to D. Kennedy, A Critique of Adjudication (Harvard University Press, 1997) 136, “The elements of the rule structure, or doctrine, are thousands of statements that have the form, ‘If these facts are found, the judge should do this.’”

  90. 90.

    See W.O. Weyrauch et al., Cases and Materials on Family Law: Legal Concepts and Changing Human Relationships (West Publishing Company, 1994) 840–842, enumerating legal standards for the “best interests of the child” in custody disputes.

  91. 91.

    That is, the judge cannot say that he or she was entitled to reach either result but chose one on the basis of personal preferences.

  92. 92.

    See for example, Dewsnup v. Timm, (1992) 502 U.S. 417, finding ambiguity in statutory language stating that “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void” and then accepting an argument based on prior law and legislative history suggesting that a secured creditor’s lien could “pass through bankruptcy unaffected.”

  93. 93.

    For example, assume that Peter buys an automobile from Paul under an installment contract. Peter misses a payment and Paul sues for possession, citing U.C.C. section 9-503. That statute provides that “a secured party has on default the right to take possession of the collateral.” U.C.C. § 9-503 (1995). In searching for a defense, Peter considers whether his missed payment constitutes a “default,” whether Paul is a “secured party,” and whether the automobile is “collateral.” If, for instance, it is unclear whether missing a payment is a default, Peter might assert the rule that a contract of adhesion is to be interpreted against the drafter. Paul would then search for an avoidance by considering whether his installment contract is one of “adhesion” and, if so, whether he is the “drafter.”

  94. 94.

    D’Amato provides an example in his response to Schauer’s argument that the attempt of a person under 35 years of age to assume the Presidency of the United States would be an “easy case.” D’Amato responds by pointing out that, through the strategy of assuming office and forcing his adversaries to bring suit, the underage President might win on the basis that the plaintiffs lack standing to sue or on grounds of mootness. See D’Amato (n 59) 253–254; See also (n 66), describing the strategic opportunities created by conflicting meta-rules.

  95. 95.

    See J. Shepard Wiley Jr., “Not Guilty By Reason of Blamelessness: Culpability in Federal Criminal Interpretation” (1999) 85 Va. L. Rev. 1021–1023, documenting and advocating use of the technique.

  96. 96.

    See J.W. Singer, “The Player and the Cards: Nihilism and Legal Theory” (1984) 94 Yale L.J. 17, “Even if a specific rule exists that has no exceptions and that everyone agrees how to apply … there is always a more general rule or principle that could plausibly be used to nullify it … .”

  97. 97.

    See Weyrauch and Bell (n 14) 381, “Thus interpretation becomes a method by which private lawmaking and the printed rules of the state are fused.”

  98. 98.

    See Galanter, “Why the ‘Haves’ Come Out Ahead” (n 2) 103, referring to actions of repeat players as “secur[ing] the penetration of rules favorable to them”; according to W.O. Weyrauch, The Personality of Lawyers (Yale University Press, 1964) 230–231 [Weyrauch, The Personality of Lawyers], referring to corresponding practices in Germany.

  99. 99.

    Galanter states: “Rule-development is shaped by a relatively autonomous learned tradition, by the impingement of intellectual currents from outside, by the preferences and prudence of the decision-makers. But courts are passive and these factors operate only when the process is triggered by parties. The point here is merely to note the superior opportunities of the [repeat player] to trigger promising cases and prevent the triggering of unpromising ones.” Galanter, “Why the ‘Haves’ Come Out Ahead” (n 2) 103 (emphasis added). Macaulay made essentially the same point earlier in discussing the automobile manufacturers’ strategy in opposition to the Good Faith Act. See S. Macaulay, Law and The Balance of Power: The Automobile Manufacturers and their Dealers (Russell Sage Foundation, 1966) 96–103 [Macaulay, Law and the Balance of Power].

  100. 100.

    See Galanter, ibid 141, “The reform envisaged here is the organization of ‘have not’ parties … into coherent groups that have the ability to act in a coordinated fashion, play long-run strategies, benefit from high-grade legal services, and so forth.”

  101. 101.

    These differences may result from differences in the attitudes of decision-makers regarding the legal issue or from entirely extralegal matters such as the particularly appealing or unappealing nature of one of the parties.

  102. 102.

    Even when a court does not publish an opinion in the process of deciding the case, parties who are aware of the decision are usually free to present the decision to a later court and argue that the later court should follow it. See W.M. Richman, and W.L. Reynolds, “Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition” (1996) 81 Cornell L. Rev. 286, “Even though they cannot cite unpublished opinions, repeat litigants … are able to catalog them and use their arguments. They also may request formal publication of those unpublished opinions that they believe will make favorable precedent”; See also K. Shuldberg, “Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals” (1997) 85 Cal. L. Rev. 569, noting that “[s]ix circuits currently allow citation [of unpublished opinions], up from only two circuits in 1994.”

  103. 103.

    Precedent set by a trial court typically would not bind a trial court in another district.

  104. 104.

    E. Talley, “Precedential Cascades: An Appraisal” (1999) 73 S. Cal. L. Rev. 87, arguing that the spread of legal precedent may be augmented by a “cascade” effect that magnifies the significance of early decisions.

  105. 105.

    Courts often indicate their intentions with regard to future rulings. In some cases, they do so formally, but in most it is only by their demeanour or their rulings on preliminary issues.

  106. 106.

    See L. Kratky Doré, “Secrecy by Consent: The Use and Limits of Confidentiality in the Pursuit of Settlement” (1999) 74 Notre Dame L. Rev. 390–395, discussing the sealing of court records pursuant to settlement agreements; See also M.J. Dragich, “Will the Federal Courts of Appeals Perish If They Publish? Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat?” (1995) 44 Am. U. L. Rev. 764–765, discussing the practice of vacating published opinions when requested by the parties upon later settlement of the case; See also J.E. Fisch, “Rewriting History: The Propriety of Eradicating Prior Decisional Law Through Settlement and Vacatur” (1991) 76 Cornell L. Rev. 596, discussing the benefits to the unsuccessful litigant who then negotiates a settlement with her adversary to request the court to vacate the judgment.

  107. 107.

    See for example, Galanter, “Why the ‘Haves’ Come Out Ahead” (n 2) 149–150, observing that “[t]he system has the capacity to change a great deal at the level of rules without corresponding changes in everyday patterns of practice or distribution of tangible advantages.”

  108. 108.

    See for example, United States v. LeFevour, (1986) 798 F.2d 977, 985 (7th Cir.), “The tactic of a lawyer in a losing cause who tries to provoke the trial judge into error is an old one, well exhibited by LeFevour’s counsel, who was twice held in contempt in the course of the trial”; T. Carter, “Playing Hardball at Microsoft: Chief Counsel William Neukom is Leading a Legal Charge that Verges on Either the Risky or Brilliant or Both” A.B.A. J., (Aug. 1998) 24–25, speculating that the attorney for Microsoft may have been attempting “to provoke the judge into appealable error.”

  109. 109.

    See for example, Marvin v. Marvin, (1996) 557 P.2d 111–116 (Cal. Ct. App.), considering defendant appellee’s four theories for sustaining the court’s order of dismissal in a case where the court gave no reason for its ruling.

  110. 110.

    See Fed. R. Civ. P. 52(a), requiring federal judges to make findings of fact in cases tried without juries.

  111. 111.

    See for example, United States v. Hartford, (1974) 489 F.2d 655–656 (5th Cir.), describing an instance in which one of the authors of this Article successfully employed this strategy.

  112. 112.

    See for example, Dynes v. Dynes, (1994) 637 N.E.2d 1324 (Ind. Ct. App.), holding that the trial court’s rejection of proffered evidence of a witness’s reputation for dishonesty fatally undermined the court’s findings of fact, which were based solely on that witness’s testimony.

  113. 113.

    See D.F. Pike, “Retrials: A Bad Case of Deja Vu” Nat’l L.J., (31 Aug. 1981) 1, 27, noting that “retrials are relatively rare” and explaining the reasons.

  114. 114.

    Professor Galanter refers to it as “restructur[ing] the transaction to escape the thrust of the … rule.” Galanter, “Why the ‘Haves’ Come Out Ahead” (n 2) 149.

  115. 115.

    Katz (n 7) 566.

  116. 116.

    See for example, L.M. Brown, and E.A. Dauer, Planning By Lawyers: Materials on a Nonadversarial Legal Process (Foundation Press, 1978) xix, “As contrasted with dispute-resolving law, preventive law … deals with the avoidance of dispute, and with the structuring of relations and transactions apart from any extant dispute.”

  117. 117.

    See for example, Lubrizol Corp. v. Cardinal Constr. Co., (1989) 868 F.2d 769 (5th Cir.), noting that the various names given to the cause of action that seeks to hold one corporation liable for the acts of another, including “sham corporation,” are not analytically helpful and instead “cloud the thinking of lawyers and judges.”

  118. 118.

    See for example, T.J. Zywicki, “Rewrite the Bankruptcy Laws, Not the Scriptures: Protecting a Bankruptcy Debtor’s Right to Tithe” (1998) Wis. L. Rev. 1264, n. 170, quoting the popular aphorism in the context of bankruptcy exemption planning.

  119. 119.

    See Llewellyn, The Bramble Bush (n 1) 48, discussing the relevance of model and colour of an automobile in a negligence hypothetical.

  120. 120.

    See D.B. Bogart, “Liability of Directors of Chapter 11 Debtors in Possession: ‘Don’t Look Back – Something May Be Gaining On You’” (1994) 68 Am. Bankr. L.J. 190, n. 189, stating that “[i]t is often the attempt to extract the last dime of illegal profit that raises creditor and court ire.”

  121. 121.

    In re Bailey, (1971) 273 A.2d 566–567 (N.J.) (internal quotation marks omitted). In fact, as a result of disciplinary proceedings arising from Bailey’s penchant for publicising cases, he was suspended from practicing pro hoc vice in New Jersey for a period of 1 year.

  122. 122.

    See for example, Gentile v. State Bar of Nev., (1991) 501 U.S. 1043 (Kennedy, J., plurality opinion), “An attorney’s duties do not begin inside the courtroom door … [A]n attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment … including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried”; R.L. Shapiro, “For the Defense” (1996) 30 Loy. L.A. L. Rev. 109, “Most sophisticated city and county prosecutorial offices now have professional public relations personnel to manage press coverage and disseminate information about an ongoing case.”

  123. 123.

    See M. Galanter, “An Oil Strike in Hell: Contemporary Legends About the Civil Justice System” (1998) 40 Ariz. L. Rev. 747 (1998), discussing “corporate investment in projecting an image of unrestrained litigiousness and rampant overclaiming” and its “paradoxical effect of increasing the level of claiming”; See also W. Glaberson, “Some Plaintiffs Losing Out in Texas’ War on Lawsuits” N.Y. Times, (7 June 1999) A1, describing the campaign against plaintiffs’ verdicts in Texas.

  124. 124.

    See K.M. Clermont, and T. Eisenberg, “Appeal from Jury or Judge Trial: Defendants’ Advantage” (4 May 1999) 4 (unpublished, on file with the Duke Law Journal); See also M. Cronin Fisk, “Now You See It, Now You Don’t” Nat’l L.J., (28 Sept. 1998) C1, discussing a study of 100 representative large verdicts of $1 million or more in 1994, about two-thirds of which were reduced or set aside.

  125. 125.

    Llewellyn, The Bramble Bush (n 1) 14.

  126. 126.

    That is, courts do not grant remedies or enter orders in the absence of a case filed by some party.

  127. 127.

    See for example, K. Donovan, “Squirm Time for Milberg Weiss” Nat’l L.J., (5 Apr. 1999) A1, quoting class-action lawyer Melvyn I. Weiss, a frequent user of expert witnesses, to the effect that “[e]xpert witnesses neutralize each other.” The experts testify regarding issues of fact, issues of foreign law, and increasingly, issues of domestic law. See for example, Bookhardt v. State, (1998) 710 So. 2d 700 (Fla. Dist. Ct. App.), permitting expert testimony on legal meaning of the term “security”; For further discussion see, Note, “Expert Legal Testimony” (1984) 97 Harv. L. Rev. 797, arguing that courts do, and should, ignore the prohibition on expert legal testimony.

  128. 128.

    See for example, Harr (n 9), describing the great trial-preparation costs to plaintiffs in the Woburn, Massachusetts, suit alleging harmful effects of a leak from a toxic dump into drinking water supplies.

  129. 129.

    See for example, Southern Christian Leadership Conference v. Superior Ct. of La., (1999) 61 F. Supp. 2d 499 (E.D. La.), upholding the state and federal constitutionality of the Louisiana business community’s decision to dismantle the Tulane Environmental Law Clinic to prevent the bringing of certain kinds of cases.

  130. 130.

    See Harr (n 9) 405–448, describing cost pressures toward settlement in a complex environmental case.

  131. 131.

    This would be a cost-effective strategy where the increased costs of litigating every case are outweighed by the savings from not having to defend or pay settlements in cases where the strategy discourages plaintiffs from pursing their claims.

  132. 132.

    R.L. Rabin, “A Sociolegal History of the Tobacco Tort Litigation” (1992) 44 Stan. L. Rev. 857.

  133. 133.

    Ibid 874, “Thus, after thirty-five years of litigation, the tobacco industry could still maintain the notable claim that it had not paid out a cent in tort awards.”

  134. 134.

    See D.E. Rovella, “High-profile Conn. Lawyer Disappears” Nat’l L.J., (22 Mar. 1999) A19, noting that “[f]ellow stars of the Connecticut defense bar were unequivocal in their admiration for [attorney] Francis Mac Buckley … His capacity to delay cases, it is said, is legendary.”

  135. 135.

    See for example, J.K. Van Patten, and R.E. Willard, “The Limits of Advocacy: A Proposal for the Tort of Malicious Defense in Civil Litigation” (1984) 35 Hastings L.J. 893, n. 9, suggesting situations in which a defendant can benefit from a meritless appeal by earning sufficient interest on the plaintiff’s judgment to cover the costs of the appeal and earn a margin of profit.

  136. 136.

    See for example, Kidder, Peabody & Co. v. IAG Int’l Acceptance Group, N.V., (1998) 28 F. Supp. 2d 131 (S.D.N.Y.), “While lost profits need not be established with ‘mathematical precision,’ they must be ‘capable of measurement based upon known reliable factors without undue speculation.’” (quoting Ashland Mgt. Inc. v. Janien, (1993) 82 N.Y.2d 395, 403.

  137. 137.

    See for example, L.M. LoPucki, “The Death of Liability” (1996) 106 Yale L.J. 1, 14–38 [LoPucki, “The Death of Liability”], describing strategies by which a defendant can protect its assets so as to render itself “judgment-proof.”

  138. 138.

    As a general rule, without a judgment from a court, a creditor cannot interfere with a debtor’s use of its property. See Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., (1999) 527 U.S. 333, holding that because of this general rule, in the instant case, “the District Court had no authority to issue a preliminary injunction preventing [debtor] petitioners from disposing of their assets pending adjudication of the [creditor] respondents’ contract claim for damages.”

  139. 139.

    See for example, Board of Sch. Comm’rs v. Jacobs, (1975) 420 U.S. 130, holding that a case brought by six high school students for interference with their First Amendment rights with respect to a school newspaper was moot because the students had graduated by the time the case reached the Supreme Court.

  140. 140.

    See for example, Galanter, “Why the ‘Haves’ Come Out Ahead” (n 2) 121, treating delay as merely the product of institutional overload; See also (n 2) 139, suggesting that an “increase in institutional facilities for processing claims” would be sufficient to eliminate delay. Rule 3.2 of the Model Rules of Professional Conduct misses the legal strategy point when it states that “[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” Model Rules of Professional Conduct Rule 3.2 (1999) (emphasis added). Read literally, the rule authorises every delaying tactic that benefits the client because elimination of that delay would be inconsistent with the interests of the client.

  141. 141.

    Model Rules of Professional Conduct ibid.

  142. 142.

    Ibid cmt. 1.

  143. 143.

    Fed. R. Civ. P. 11.

  144. 144.

    See ABA Comm. on Ethics and Professional Responsibility, (1992) Formal Opinion 92-363, finding that “[t]he Model Rules do not prohibit a lawyer from using the possibility of presenting criminal charges against the opposing party in a private civil matter to gain relief for a client, provided that the criminal matter is related to the client’s civil claim.” Statutes in some states may, nevertheless, prohibit the practice.

  145. 145.

    For example, illegal aliens may have difficulty in claiming their legal rights because they fear that the opposing party will discover their status and bring it to the attention of the immigration authorities. See for example, H.A. Freeman, and H. Weihofen, Clinical Law Training: Interviewing and Counseling (West Publishing Co., 1972) 208–209, summarising a divorce case in which the husband used threats of deportation to discourage his Canadian wife from asserting her rights in the divorce proceedings.

  146. 146.

    The bribery of judges has been a recurring problem in the American legal system. See for example, United States v. Maloney, (1995) 71 F.3d 665 (7th Cir.), affirming a Chicago judge’s conviction for accepting bribes in murder cases; “2 Judges Guilty in Florida Corruption Inquiry” N.Y. Times, (28 Apr. 1993) A18, reporting the conviction of two Dade County, Florida, judges for bribery.

  147. 147.

    See for example, R.J. Harris, “Whither the Witness? The Federal Government’s Special Duty of Protection in Criminal Proceedings After Piechowicz v. United States” (1991) 76 Cornell L. Rev. 1302–1303, discussing the problem of protecting witnesses in criminal cases and proposing a duty for the government to protect federal criminal witnesses who are threatened, based, inter alia, on knowledge or reasonable foreseeability that the witness is in danger.

  148. 148.

    See T.V. Lee, “Risky Business: Courts, Culture, and the Marketplace” (1996) 47 U. Miami L. Rev. 1409, “Litigation makes sense only if merchants expect to profit beyond the breakdown of the business relationship”; See also S. Macaulay, “Non-Contractual Relations In Business: A Preliminary Study” (1963) 28 Am. Soc. Rev. 61–62, finding that parties in long-term business relationships litigate only when reputational sanctions fail, usually in situations involving high stakes or the termination of the relationship; See also Macaulay, Law and the Balance of Power (n 100) xv, “Once their franchises have been terminated, [automobile dealers] have been willing to sue.” Professor Galanter notes that “the more inclusive in life-space and temporal span a relationship between parties, the less likely it is that those parties will resort to the official system.” See Galanter, “Why the ‘Haves’ Come Out Ahead” (n 2) 130 (footnotes omitted).

  149. 149.

    See P.C. Weiler et al., A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation (Harvard University Press, 1993) 73, describing a hospital review where only 8 out of 280 patients with “identifiable negligent injury” actually filed claims.

  150. 150.

    See J.C. Jeffries, and J. Gleeson, “The Federalization of Organized Crime: Advantages of Federal Prosecution” (1995) 46 Hastings L.J. 1113, “Most civilian witnesses in organized crime investigations – extortion victims, relatives of murder victims, and chance eyewitnesses – are extremely reluctant to testify. Often they refuse to do so even in the secrecy of the grand jury.”

  151. 151.

    See K. Van Wezel Stone, “Rustic Justice: Community and Coercion Under the Federal Arbitration Act” (1999) 77 N.C. L. Rev. 936–939 [Van Wezel Stone], describing a hypothetical case where a consumer purchases a computer through an advertisement and finds inside the box a binding contract that includes the requirement that all claims be arbitrated “in Phoenix, Arizona before a panel of three retired industry executives”; But see United States General Accounting Office, Securities Arbitration: How Investors Fare (1992) 35–39, finding securities investors no more likely to prevail in an “independent” forum, such as the American Arbitration Association, than in industry-sponsored forums such as the New York Stock Exchange or the National Association of Securities Dealers.

  152. 152.

    See for example, United Servs. Automobile Ass’n v. Snappy Car Rental, Inc., (1999) 87 Cal. Rptr. 2d 743 (Cal. Ct. App.), analysing a car rental contract under which a consumer renter indemnified a car rental company against claims of third parties arising out of use of the automobile; See also Microsoft Indemnification requiring that the customer indemnify the provider against litigation arising out of the customer’s usage of the internet (on file with the Duke Law Journal) [Indemnification], online: Indemnification http://memberservices.msn.com/gettingstarted/guidelines/memberagreement.htm#Section12.

  153. 153.

    See Van Wezel Stone (n 152) 938–941, lamenting that a contract to arbitrate in an unusual forum with a panel chosen by industry could be enforceable even though the contract – found inside the package after it was purchased – made no mention of arbitration, referring only to “the rules and regulations of the Computer Manufacturer’s Industry Trade Association.”

  154. 154.

    See for example, T. Eisenberg, and L.M. LoPucki, “Shopping for Judges: An Empirical Analysis of Venue Choice in Large Chapter 11 Reorganizations” (1999) 84 Cornell L. Rev. 967 [Eisenberg and LoPucki, “Shopping for Judges”], analysing rampant forum shopping in cases under the United States Bankruptcy Code; See also E. Flynn, “Confirmation Rates By Judge” (1998) 1989–1996 (unpublished, on file with the Duke Law Journal), showing five U.S. Bankruptcy judges as confirming reorganization plans in fewer than 10% of their cases and six confirming plans in more than 50% of their cases. Some portion of the difference in the confirmation rates reported by Flynn may be attributable to differences in types of cases assigned to the judges, but the differences are too great to be entirely accounted for by that factor.

  155. 155.

    For example, in Florida, most civil suits may be filed “in the county where the defendant resides,” or “in the county where the cause of action accrued.” Fla. Stat. Ann. § 47.011 (West 1994). Some actions can be filed in state court or federal court. See for example, 20 Am. Jur. 2d Courts § 97 (1995), “[I]n diversity of citizenship cases, the jurisdiction of federal courts is concurrent with that of state courts, provided the amount involved meets the minimum specified by Congress for an action to be brought in a federal court.”

  156. 156.

    For example, Wisconsin and California statutes give each party to the case the option to remove one judge. See Cal. Civ. Pro. Code Ann. § 170.6 (West Supp. 2000), providing for substitution of judges based on an affidavit that the judge is prejudiced against any party or attorney.

  157. 157.

    See B.G. George, “In Search of General Jurisdiction” (1990) 64 Tul. L. Rev. 1108–1119, describing the legal basis for jurisdiction over causes of action that did not arise out of the defendant’s activities in the forum.

  158. 158.

    See for example, D.W. Robertson, “The Federal Doctrine of Forum Non Conveniens: ‘An Object Lesson in Uncontrolled Discretion’” (1994) 29 Tex. Int’l L.J. 354–355, quoting Lord Denning’s description of how numerous cases involving injuries suffered on North Sea oil rigs were filed in Texas due to the possibility of larger verdicts in the United States than overseas.

  159. 159.

    See 28 U.S.C. §1441(b) (1994), authorising removal “if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”

  160. 160.

    See E. Chemerinsky, “Rationalizing Jurisdiction” (1992) 41 Emory L.J. 7, “[A] plaintiff trying to avoid removal to federal court might add defendants who are from the same state”; A.B. Rubin, “Hazards of a Civilian Venturer in a Federal Court: Travel and Travail on the Erie Railroad” (1988) 48 La. L. Rev. 1374–1375, “Plaintiffs who wish to avoid removal to federal court may do so if they can join, in addition to the non-resident defendant, a resident defendant, thus avoiding the complete diversity of citizenship that is a prerequisite to federal court jurisdiction.” The doctrinal limit on this strategy is that the joinder cannot be “fraudulent.” See Marble v. American Gen. Life and Accident Ins. Co., (1998) 996 F. Supp. 573 (N.D. Miss.), quoting Rodriguez v. Sabatino, (1997) 120 F.3d 589, 591 (5th Cir.): “To prove that non-diverse parties have been fraudulently joined in order to defeat diversity, the removing party must demonstrate either ‘outright fraud in the plaintiff’s recitation of jurisdictional facts,’ or that ‘there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the in-state defendant in state court.’”

  161. 161.

    See for example, Caterpillar, Inc. v. Williams, (1986) 482 U.S. 392, noting that a plaintiff is “the master of the claim” and may choose to avoid removal by omitting federal law claims from the initial complaint.

  162. 162.

    See for example, St. Paul Mercury Indem. Co. v. Red Cab Co., (1937) 303 U.S. 294, “If [the plaintiff] does not desire to try his case in the federal court he may resort to the expedient of suing for less than the jurisdictional amount, and though he would be justly entitled to more, the defendant cannot remove”; But see De Aguilar v. Boeing Co., (1995) 47 F.3d 1410 (5th Cir.), “The inquiry, however, does not end merely because the plaintiff alleges damages below the threshold. The face of the plaintiff’s pleading will not control if made in bad faith.”

  163. 163.

    See J.T. Molot, “How U.S. Procedure Skews Tort Law Incentives” (1997) 73 Ind. L.J. 73, n. 55, “A plaintiff can always avoid removal on diversity grounds, however, by filing a suit in the defendant’s home state.”

  164. 164.

    See for example, Mecom v. Fitzsimmons Drilling Co., (1931) 284 U.S. 188–190, allowing an Oklahoma administratrix to resign and a Louisiana administrator to be appointed to destroy diversity so an action could be brought in Louisiana.

  165. 165.

    See for example, In re Apex Oil Co., (1988) 91 B.R. 865 (Bankr. E.D. Mo.), assuming jurisdiction to estimate the Department of Energy’s claims against a debtor over the Department’s objections.

  166. 166.

    See for example, Martin v. Fuqua, (1976) 539 S.W.2d 315–316 (Ky.), holding that where a husband and wife filed divorce actions in different counties, only the first case filed should proceed.

  167. 167.

    The first court in which a bankruptcy case is filed by or against a particular debtor controls venue. See Bankr. Rule 1014(b), 11 U.S.C. app. (1994). In preparation for filing bankruptcy in New York, Baldwin-United, a Cincinnati company, established a New York headquarters. Creditors filed an involuntary case in Cincinnati just minutes before Baldwin-United filed its New York case. Unlikely to win the venue fight, and apparently fearful of offending the Cincinnati judge, Baldwin-United dismissed its New York filing without a fight. See L.M. LoPucki and W.C. Whitford, “Venue Choice and Forum Shopping in the Bankruptcy Reorganization of Large, Publicly Held Companies” (1991) Wis. L. Rev. 28, n. 60 [LoPucki and Whitford, “Venue Choice and Forum Shopping”].

  168. 168.

    See for example, League of Latin Am. Citizens v. Clements, (1993) 986 F.2d 769 (5th Cir.), noting that, under Texas rules on venue, “a party who anticipates being sued may ‘capture’ venue by filing suit first” (citation omitted).

  169. 169.

    See for example, Carnival Cruise Lines, Inc. v. Shute, (1991) 499 U.S. 595, upholding a contract provision providing for venue in Miami, Florida, for a Washington plaintiff injured on a cruise between Los Angeles and Puerto Vallarta, Mexico. Similarly, Microsoft’s contract of adhesion for Internet access provides for venue in King’s County, Washington, for all actions arising out of the customer’s relationship with Microsoft. See Indemnification (n 153).

  170. 170.

    See 28 U.S.C. § 1404(a) (1994), authorising a district court to change venue “[f]or the convenience of parties and witnesses”; In re Union Carbide Corp., (1987) 809 F.2d 202–203 (2d Cir.), upholding a dismissal due to forum non conveniens where the incident occurred in India, all plaintiffs were Indian citizens, and “the proof bearing on the issues to be tried [was] almost entirely located in India.”

  171. 171.

    See for example, Eisenberg and LoPucki, “Shopping for Judges” (n 155) 968, finding, based on an empirical study, that forum shopping was rampant in the bankruptcies of large, public companies from 1980 to 1997; See also ibid 1000, concluding that venue correction occurred in only about 5% of those cases; See also LoPucki and Whitford, “Venue Choice and Forum Shopping” (n 168) 24–26, describing forum shopping in specific cases.

  172. 172.

    See for example, L.P. Cohen, “Frankel May Surrender, as a Deal Is Expected” Wall St. J., (1 July 1999) C1, noting that Samuel D. Sheinbein, accused of murder in the United States, successfully defeated United States venue for his murder trial by obtaining Israeli citizenship based on the fact that his father was born in the territory that became Israel.

  173. 173.

    See generally K.M. Clermont, and T. Eisenberg, “Exorcising the Evil of Forum Shopping” (1995) 80 Cornell L. Rev. 1507, reporting that federal court plaintiffs lose a significantly larger percentage of transferred cases than they lose of all cases.

  174. 174.

    See for example, “No Judge-Shopping Allowed” Nat’l L.J., (5 May 1997) A8, reporting that an attorney paid sanctions of $7,500 for filing 13 lawsuits, then withdrawing all but one in a case involving Dr. Jack Kevorkian; See also R. Samborn, “Chicago Judge Sanctions Firm” Nat’l L.J., (18 Apr. 1994) A4 [Samborn], reporting that a judge sanctioned Mayer, Brown & Platt lawyers for filing five identical complaints in an attempt to draw one of three judges.

  175. 175.

    See for example, M. Ballard, “Biggest Little Court in Texas: Plaintiffs Flock to Texarkana with Billion-Dollar Suits” Nat’l L.J., (30 Aug. 1999) A1, A10, noting the filing of numerous large cases in the Texarkana, Texas, federal court to get Judge David Folsom and referring to the technique as “pinpoint forum shopping.”

  176. 176.

    See for example, G. Bermant et al., Chapter 11 Venue Choice By Large Public Companies: Report to the Judicial Conference Committee on the Administration of the Bankruptcy System (Federal Judicial Centre, 1997) 40–41, reporting the Delaware Bankruptcy Court’s practice of advising prospective filers of the name of the judge who would be assigned to the case when filed.

  177. 177.

    See for example, Weyrauch, The Personality of Lawyers (n 99) 225, n.17, “The attorneys hang around in the clerk’s office until the proper letter is about to come up. As soon as this happens, they file their complaints.”

  178. 178.

    See for example, P. Yost, “Custom Broken in Cases Tied to President; Judge Picks Clinton Appointees to Preside” Boston Globe, (1 Aug. 1999) A13, revealing that the chief judge of the United States District Court for the District of Columbia bypassed the random assignment system to steer cases against friends of President Clinton to judges appointed by President Clinton.

  179. 179.

    This form of shopping is considered unethical, even in the absence of any rule violation. See Samborn (n 175).

  180. 180.

    For example, if a similar case anywhere in the United States has been assigned to a sympathetic judge, later filers can seek assignment to the same judge on the ground that their case is related to that one. See for example, B. Van Voris, “N.Y.’s Judge-shopping Channel” Nat’l L.J., (26 July 1999) A4, asserting that tobacco and gun plaintiffs are flocking to the United States District Court for the Eastern District of New York to seek related-to assignments to Judge Jack B. Weinstein.

  181. 181.

    See D.A. Geier, “The Tax Court, Article III, and the Proposal by the Federal Courts Study Committee: A Study in Applied Constitutional Theory” (1991) 76 Cornell L. Rev. 998, showing, in an empirical study, that the government won 70.5% of district court tax cases and 90.4% of tax court cases in the same period.

  182. 182.

    See Pennzoil Co. v. Texaco Inc., (1986) 481 U.S. 24 (Marshall, J., concurring), objecting to “the odor of impermissible forum shopping which pervades this case.”

  183. 183.

    R.H. Mnookin, and L. Kornhauser, “Bargaining in the Shadow of the Law: The Case of Divorce” (1979) 88 Yale L.J. 997, focusing on the role of law in divorce proceedings outside of the courtroom.

  184. 184.

    See for example, E.D. Elliott, “Managerial Judging and the Evolution of Procedure” (1986) 53 U. Chi. L. Rev. 312, “One can in fact define managerial judging as the selective imposition by judges of costs on lawyers for the purpose of rationing the use of procedures available under the Federal Rules of Civil Procedure.”

  185. 185.

    See for example, K. Donovan, “Class Action War Heats Up” Nat’l L.J., (22 Dec. 1997) A1, asserting that companies often felt compelled to settle securities class action strike suits to avoid embarrassment.

  186. 186.

    See ibid.

  187. 187.

    See Harr (n 9) 491–492, describing how bitter, unsuccessful civil litigation over several years generated a record of environmental abuses that then made action by the EPA feasible.

  188. 188.

    See for example, J. Cooper Alexander, “Do the Merits Matter? A Study of Settlements in Securities Class Actions” (1991) 43 Stan. L. Rev. 502.

  189. 189.

    See for example, I.R. Kaufman, “Must Every Appeal Run the Gamut? – The Civil Appeals Management Plan” (1986) 95 Yale L.J. 755, noting that “settlements are neither dictated nor even necessarily driven by statutes and stare decisis”; See also T.D. Peterson, “Restoring Structural Checks on Judicial Power in the Era of Managerial Judging” (1995) 29 U.C. Davis L. Rev. 78, “The combination of managerial and substantive decision-making powers provides district judges with powerful leverage during the pretrial phase. Judges can use their power over substantive decision-making to coerce settlements and intimidate counsel into abandoning litigation theories or defenses.”

  190. 190.

    See D. Hurst Floyd, “Can the Judge Do That? The Need for a Clearer Judicial Role in Settlement” (1994) 26 Ariz. St. L.J. 49, “Additionally, because of a ‘judicial zeal for settlement,’ the increased opportunity for abuse may lead to judges punishing parties and lawyers who fail to cooperate in settlement.”

  191. 191.

    See for example, Lasswell and McDougal (n 7) 316–317, describing the traditional view as the “positivist frame.”

  192. 192.

    See Schauer (n 3) 413, “Following the law is a legal event, and the vast majority of these legal events are easy cases.”

  193. 193.

    See above Parts 4.2.1–4.2.2.

  194. 194.

    See for example, R.A. Posner, The Economic Analysis of Law (1998) 275, assuming that judges control the evolution of the law.

  195. 195.

    See above Part 4.2.1.

  196. 196.

    See P.H. Rubin, and M.J. Bailey, “The Role of Lawyers in Changing the Law” (1994) 23 J. Legal Stud. 807 [Rubin and Bailey], proposing that the law is driven by the preferences of attorneys, not judges or litigants; See also P.H. Rubin, “Why is the Common Law Efficient?” (1977) 6 J. Legal Stud. 51, arguing that parties with a continuing interest in the establishment of efficient rules will invest resources to overturn inefficient results; See also R. Cooter, and L. Kornhauser, “Can Litigation Improve the Law Without the Help of Judges?” (1980) 9 J. Legal Stud. 140, “Litigants try to win their cases, not increase the law’s efficiency, but the former may result in the latter.” If litigation can improve the law, it must be able to change it.

  197. 197.

    See above Part 4.2.1.

  198. 198.

    See Rubin and Bailey (n 197) 817–821, linking the rejection of the privity doctrine to the rate of increase in the number of lawyers and noting efforts to link plaintiffs’ law reform efforts through litigation groups.

  199. 199.

    Professors Rubin and Bailey principally show that plaintiffs’ lawyers are organized and motivated toward law reform favourable to their interests. They assert that those efforts result in favourable precedents. See ibid 808, “This is our basic hypothesis: The shape of modern product liability law is due to the interests of tort lawyers.” But they make only vague references to means by which those motivations and efforts could generate precedents in spite of the contrary views of judges.

  200. 200.

    See LoPucki, “The Death of Liability” (n 138) 8–13, describing the nine basic principles on which the liability system is constructed and which serve as the foundation for judgment-proof structures. These principles are not law, but deeper understandings as to the operation of society: that a person can own property is an example.

  201. 201.

    See ibid 8, noting that the court will tolerate considerable amounts of unintended strategic activity because of the trauma involved in making basic changes. Working from an economic perspective, Professor Basu offers an alternative explanation of the court’s inability to effectuate the written rule: “If a certain outcome is not an equilibrium of the economy, then it cannot be implemented through any law.” Basu (n 20) 22.

  202. 202.

    In the example of judgment-proofing presented here, the short-term result of acquiescence is that judgment-proofing succeeds; but the long-term result is an even more massive social change: the liability system fails. See LoPucki, “The Death of Liability” (n 138) 4, arguing that the ability to enforce a money judgment is essential to the system of liability, and that liability is essential to enforce American law. Judges occasionally acknowledge their lack of omnipotence over legal outcomes. See for example, Hoffman v. Jones, (1973) 280 So. 2d 437 (Fla.), giving as one reason for abolishing the rule of contributory negligence in Florida that juries may have been handing down compromise verdicts in violation of their duty to apply the rule.

  203. 203.

    For a more complete description of the problem and the strategists’ solution, See LoPucki, “Legal Culture, Legal Strategy” (n 28) 1533–1537.

  204. 204.

    See Johnson v. Home State Bank, (1991) 501 U.S. 80, holding that a mortgage lien can be rescheduled under Chapter 13 even after the personal obligation secured by the mortgaged property has been discharged under Chapter 7.

  205. 205.

    See LoPucki, “Legal Culture, Legal Strategy” (n 28) 1539–1541.

  206. 206.

    M.S. Scarberry et al., Business Reorganization in Bankruptcy: Cases and Materials, (1996) 14.

  207. 207.

    For a more complete description of the problem and the strategists’ solution, see LoPucki, “Legal Culture, Legal Strategy” (n 28) 1537–1541.

  208. 208.

    Federal law purports to govern all transactions or occurrences within the United States and each state’s law purports to govern transactions or occurrences throughout the respective state.

  209. 209.

    See for example, T.W. Church, Jr., “Civil Case Delay in State Trial Courts” (1978) 4 Just. Sys. J. 181, referring to “a stable set of expectations, practices and informal rules of behavior which, for want of a better term, we have called ‘local legal culture’”; See also T.W. Church, Jr., “Examining Local Legal Culture” (1985) Am. B. Found. Res. J. 451, referring to “the practitioner norms governing case handling and participant behavior in a criminal court.”

  210. 210.

    See for example, R.M. Cover, “The Supreme Court, 1982 Term-Foreword: Nomos and Narrative” (1983) 97 Harv. L. Rev. 30–33, describing social norms in various religious sects, company towns, and other non-sectarian settings; See also Weyrauch and Bell (n 14) 395; See also W.O. Weyrauch, “The ‘Basic Law’ or ‘Constitution’ of a Small Group’” (1971) 27 J. Soc. Issues 56–58, depicting the evolution of law when a group of Berkeley students were experimentally locked in a penthouse for three months.

  211. 211.

    For example, when Chief District Judge Joseph J. Farnan, Jr. in 1997 took the unprecedented step of withdrawing the automatic reference of Delaware bankruptcy cases to the bankruptcy court and personally taking over the assignment of Chapter 11 cases filed in Delaware, the proportion of large Chapter 11 cases filed in Delaware instantly fell from 86% to almost 0%. See Eisenberg and LoPucki, “Shopping for Judges” (n 155) 986, reporting that only a single large, publicly held company filed for bankruptcy in the United States during the five months following Judge Farnan’s order. Conventional legal theory would have predicted no change in filing rates because the newly assigned judges would be bound to follow the same law and procedures as the old.

  212. 212.

    We use the term “resources” rather than “money” in recognition of the fact that lawyers may devote their time to particular cases for ideological reasons – pro bono work – and organizations may sponsor litigation for ideological reasons, such as a foundation sponsoring litigation to protect the environment. In either case, the effect is the fundamentally the same as an expenditure of the parties’ own money.

  213. 213.

    See for example, conversation between L.M. LoPucki, Security Pacific Bank Professor of Law, UCLA Law School; T. Eisenberg, H.A. Mark Professor of Law, Cornell Law School; and J.A. Henderson, Jr., F.B. Ingersoll Professor of Law, Cornell Law School, (25 Sept. 1998).

  214. 214.

    See Farber (n 27) 606, “A certain amount of formalism is unavoidable. As a result, the kind of moral risk dramatised by the story of the red-hot knife may be difficult to eliminate from any legal system.”

  215. 215.

    A “law-related system” is a system composed of people and objects in which formal law plays a role. See LoPucki, “The Systems Approach to Law” (n 37) 488–497, explaining the concept of a law-related system.

  216. 216.

    Not seeing this potential for improvement, most scholars condemn strategy as unethical, exhort lawyers to refrain from engaging in it, and attempt to ignore strategy in their theories of the operation of the legal system. We consider their condemnations and exhortations ineffective and their attempt to ignore strategy misguided.

  217. 217.

    Scholars have done most of their computer-assisted analyses of the legal process to date in databases that contain only legal opinions. Because legal opinions are non-systematic, self-serving descriptions of the legal process by persons with vested interests, they are a relatively weak form of data. Nevertheless, studies of them have already revealed interesting patterns. See for example, M.G. Duncan, Romantic Outlaws, Beloved Prisons: The Unconscious Meanings of Crime and Punishment (New York University Press, 1996) 195–196, exposing a pattern of discourse by prosecutors and courts that describe criminal defendants with metaphors of filth; See also Farole (n 17), showing that state governments win disproportionately in state supreme courts; See also R.B. Thompson, “Piercing the Veil Within Corporate Groups: Corporate Shareholders as Mere Investors” (1999) 13 Conn. J. Int’l L. 385–388, showing that despite judicial rhetoric to the contrary, piercing the corporate veil within a corporate group on behalf of a tort plaintiff is extremely rare.

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Authors and Affiliations

  1. Security Pacific Bank Professor of Law, School of Law, University of California, Los Angeles, CA, USA

    Lynn M. LoPucki

  2. Levin College of Law, University of Florida, Gainesville, FL, USA

    Walter O. Weyrauch (Distinguished Professor of Law and Stephen C. O’Connell Chair Emeritus)

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  1. Lynn M. LoPucki
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  2. Walter O. Weyrauch
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  1. de l¿Union Européenne, Tribunal de la Fonction Publique, Luxembourg, 2925, Luxembourg

    Antoine Masson

  2. Faculty of Law, University of Manitoba, Winnipeg, R3T 2N2, Canada

    Mary J. Shariff

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LoPucki, L.M., Weyrauch, W.O. (2009). A Theory of Legal Strategy. In: Masson, A., Shariff, M. (eds) Legal Strategies. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-02135-0_4

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