1 Randolph Bourne in 1917 warned in another context that this kind of realism may “he sometimes a mere surrender to the actual, an abdication of the ideal through a sheer fatigue from intellectual suspense. … The realist thinks he at least can control events by linking himself to the forces that are moving. Perhaps he can. But… it is difficult to see how the child on the hack of a mad elephant is to be any more effective in stopping the beast than is the child who tries to stop him from the ground.” R. Bourne, War and the Intellectuals 12 (New York: Harper & Row, 1964).Google Scholar

2 In April 1987 the New York Times reported allegations that some 200 people a year die from injuries associated with lighters, which allegedly ignite when not in use or explode when used; and that the Bic Corporation had sought to settle all lawsuits alleging fault by Bic in lighter accidents before the suits even were filed. The Bic Corporation denied the allegations that their lighters were unsafe. Gilpin, Bic Says There Are 42 Suits, N.Y. Times, April 17, 1987, sec. D, p. 3, Col. 1.Google Scholar

3 It has not been unusual to allege antitrust conspiracies before all the facts have been collected. Recent examples from the Federal Rules Decisions include: Mary Ann Pensiero Lingle, V., 115 F.R.D. 233 (M.A. Pa. 1987) (attorney fees awarded under Rule 11 to defendant against plaintiff who alleged, without sufficient basis, that defendant conspired with others to refuse to deal with plaintiff); Nassau-Suffolk Ice Cream v. Integrated Resources, 114 F.R.D. 684 (S.D. N.Y. 1987) (sanctions, again under Rule 11, in favor of alleged supplier charged without sufficient factual basis with an illegal tying arrangement with other suppliers). Of particular interest, however, is the Supreme Court approach in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 106 S.Ct. 1348 (1986), discussed below.Google Scholar

4 This example comes from Smith v. Offer, 431 US. 816 (1977), and from the excellent history and discussion of the case by David Chambers and Michael Wald in R. Mnookin, ed., In the Interest of Children: Advocacy, Law Reform, and Public Policy 67–148 (New York: W. H. Freeman & Co., 1985).Google Scholar

5 In an empirical study of class action litigation in the Northern District of California, we found that virtually every “creative” constitutional theory, e.g., to challenge city towing practices, jail detention, prison discipline, and a variety of social security and retirement provisions, was founded on procedural due process. For a general discussion of the study see Garth, B., Nagel, I., & Plager, S., The Institution of the Private Arrorney General: Perspectives from an Empirical Study of Class Action Litigation. 61 So. Cal. 1. Rev. 353 (1988). The study was supported by a grant from the Law and Social Sciences Division of the National Science Foundation, No. SES82-18926.Google Scholar

6 16 Pet. 1, 16 L. Ed. 865 (1842).CrossRefGoogle Scholar

7 According to Abram Chayes, , the Supreme Court is charged with “exercising an oversight function on behalf of the interests and groups as well as the individuals affected by the challenged bureaucratic actions.” Chayes, ‘Foreword-Public Law Litigation and the Burger Court,’ 76 Haw. 1. Rev. 4, 60 (1982). Bruce Ackerman represents a good example of someone who is concerned that public values be developed beyond Posner's marker approach: “1 aim to mediate ongoing political conflict through a legal culture in which public values are developed in the manner of American law.” B. Ackerman, Reconstructing American Law 100 (Cambridge: Harvard University Press, 1984). Ackerman emphasizes that these affirmative values, which include distributive issues, go well beyond economic efficiency: “thou shalt not imagine that perfected market justice is all there is to American law.”Id. at 91.Google Scholar

8 NAACP v. Button, 371 U.S. 415 (1963).Google Scholar

9 At 321. (“the time has come to subsidize settlement rather than litigation”).Google Scholar

10 At 294. See, e.g., Bethlehem Steel Corp. v. EPA, 723 F.2d 1303, 1309 (7th Cir. 1983) (opposing effort to find public values in a statute).Google Scholar

11 Another conservative critique of the “rights industry” is R. Morgan, Disabling America: The “Rights Industry” in Our Time (New York: Basic Books, 1984). On the other side is, e.g., Fiss, Against Settlement, 93 Yale L.J. 1073 (1984). With respect to federal court access, Posner suggests that he favors “financially significant cases” versus “small monetary stakes” (at 132) and “an economically realistic user-fee structure for the federal courts” (at 136).CrossRefGoogle Scholar

12 It is worth noting that the privatization side of these debates has been winning recently. The Supreme Court, for example, had in the past developed a legal test to ensure that public law be kept in the courts rather than handled through private, ostensibly consensual, arbitration. Several cases point to a substantial change in approach. The emphasis now is on enforcing the private agreement, rather than promoting some overriding public policy. The result will be that the courts get less opportunity to enforce and elaborate the principles found in public policies with respect to antitrust and securities regulation. See, e.g., Shearson/American Express v. Mc-Mahon, 107 S. Ct. 2332 (1987).Google Scholar

13 See, e.g., J. Cound, J. Friedenthal, A. Miller, & J. Sexton, Civil Procedure: Cases and Material 1150 (4th ed. St. Paul, Minn.: West Publishing Co., 1985) (a leading casebook referring to “a dramatic increase in the number of cases filed in the courts of our nation”). According to Posner, his data “make it hard to resist the inference that the great growth in federal litigation since the early 1960s is part of a larger, and poorly understood, national phenomenon” (at 86). Posner insists that the crisis must affect judicial decision making: “[D]ecisions that create rights result in heavier caseloads. which can in turn impair the courts' ability to function … The extremely serious caseload problems that beset the federal courts today make it a question of some urgency whether a judge legitimately may consider caseload effects when deciding a case. He surely may in areas such as jurisdiction and procedure” (at 208). The alleged federal crisis can be seen accordingly in opinions such as Bernstein v. Lind-Waldrock & Co., 738 F.2d 179 (7th Cir. 1984), denying a private cause of action to enforce Commodity Exchange rules: “Not only are the federal courts more than busy enough as it is, but they have no special gifts for developing a body of contract law that will govern the internal disputes of the exchanges better than they are governed by state contract law.” 738 F.2d at 185.Google Scholar

14 One reason is that “it is politically impossible to raise federal judges' salaries to a level that would attract high quality candidates, in the number required,” at 99. See also at 29–47.Google Scholar

15 Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. Chi. 1. Rev. 494 (1986). According to Resnik, id. at 529: “The dominant claim today is that the framework [of 19381 has provided too many opportunities for exploitation and manipulation and too little guidance for the untutored”.CrossRefGoogle Scholar

16 The consensus was reflected in the 1983 reforms to the Federal Rules of Civil Procedure. See A. Miller, The August 1983 Amendments to the Federal Rules of Civil Procedure: Promoting Effective Case Management and Lawyer Responsibility (Washington, D.C.: Federal Judicial Center, 1984). According to Posner, “a firm juridical hand is necessary to protect litigants from the use of discovery to embarrass, intimidate, or exhaust their opponents and thereby force unfair settlements” (at 226).Google Scholar

17 Posner, The Decline of Law as an Autonomous Discipline: 1962–87, 100 Harv. L. Rev. 761, 769 n.34 (1987). On the Seventh Circuit approach see Hirschman, Tough Love: The Court of Appeals Runs the Seventh Circuit the Old-Fashioned Way, 63 Chi-Kent 1. Rev. 191 (1987).Google Scholar

18 See Subrin, . How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective,’ 135 U. Pa. L. Rev. 909 (1987); Resnik, U. Chi. L. Rev., at 501–15.CrossRefGoogle Scholar

19 “Give judges all the facts and a litigation package that includes every possible legal theory and every possibly interested party.” Subrin, U. Pa. L. Rev., at 1001.Google Scholar

20 See, e.g., Mather, & Yngvesson, , Language, Audience, and the Transformation of Disputes, 15 Law & Soc'y Rev. 775 (198081).CrossRefGoogle Scholar

21 The Amendment to Rule 11 accelerated a process which Professor Marcus aptly described as the revival of fact pleading as opposed to the easy notice pleading of the Spirit of ′38. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 Columb. L. Rev. 433 (1986). For a thoughtful discussion of the early experience, see Nelkin, Sanctions Under Amended Federal Rule11-Some “Chilling” Problems in the Struggle Between Compensation and Punishment, 74 Geo. L.J. 1313 (1986). Posner would like to deter litigation by more fee-shifting against losing parties (at 137–38). As judge, Posner has not hesitated to invoke Rule 11 aggressively against weak appeals, Hill v. Norfolk & Western Rys, 814 F.Zd 1192 (7th Cir. 1987); Bacon v. Am. Fed'n of State, County & Mun. Employees, 795 F.2d 33 (7th Cir. 1986), and even to remand a case for sanctions against an unrepresented plaintiff who thought he was the victim of discrimination but did not probe whether the defendant had an alternative explanation, Shrock v. Altru Nurses Registry, 810 F.2d 658 (7th Cir. 1987). An especially strong assertion of a fee-shifting power, criticized in Hirshmann, 63 Chi.-Kent L. Rev., at 202–3, is Analytica v. NPD Research, 708 F.2d 1263 (7th Cir. 1983).CrossRefGoogle Scholar

22 See Sofaer, , Sanctioning Attorneys for Discovery Abuse Under the New Federal Rules: On the Limited Utility of Punishment, 57 St. John's L. Rev. 680 (1983).Google Scholar

23 See, e.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (denying access to a membership list revealed as part of the discovery in the case).Google Scholar

24 See, e.g., Peckham, . A Judicial Response to the Cost of Litigation: Case Management, Two-Stage Discovery Planning and Alternative Dispute Resolution, 37 Rut. L. Rev. 235 (1985).Google Scholar

25 A useful discussion of some of these tendencies is Marcus, 86 Colum. L. Rev., at 490–91. Cf. Celotex Corp. v. Catrett, 477 US. 317 (1986); Marrese v. Orthopaedic Surgeons, 706 F.2d 1488 (7th Cir. 1983) (Posner opinion limiting discovery, in part because plaintiff had not shown an anti-competitive effect of defendanr's behavior).Google Scholar

26 See, e.g., Brazil, Kahn, Newman. & Gold, Early Neutral Evaluation: An Experimental Effort to Expedite Dispute Resolution, 69 Judicature 279 (1986). The order providing for the use of alternative dispute resolution in the Claims Court emphasized that these methods “should be employed early in the litigation process in order to minimize discovery.” U.S. Court of Claims, General Order No. 13. April 14, 1987 (reported at 55 U.S.L.W. 2571 (Apr. 28, 1987)).Google Scholar

27 A helpful analysis of this impact on the role of the courts is Macklin, Promoting Settlement: Foregoing the Facts, 3 N.Y.U. Rev. L. & Soc. Change 575 (1986).Google Scholar

28 See generally Garth, Nagel, and Plager, So. Cal. L. Rev. (cited in note 5).Google Scholar

29 General Tel. Co. of Southwest v. Falcon, 457 U.S. 147 (1982); East Texas Motor Freight v. Rodriguez, 431 US. 395 (1977).Google Scholar

30 The incentive to go only for risk-free cases has been underlined by the recent case of Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 107 S. Cr. 3078 (1987) (rejecting claim for greater fees because of risk). Posner has generally supported the private attorney general idea, even exceeding the Supreme Court's generosity in Marek v. Chesney, 473 U.S. 1 (1985). The Court found that the encouragement of settlements essentially took precedence over the need for the attorney fee incentive. Posner had held otherwise. 720 F.2d 474 (7th Cir. 1983). See also e.g., Lenard v. Argento, 808 F.2d 1242 (7th Cir. 1987) (general discussion): Henry v. Webermeier, 738 F.2d 188 (7th Cir. 1987); Pine v. Barash, 705 F.2d 936 (7th Cir. 1983); Waldrop v. US. Dept. of Airforce, 688 F.2d 36 (7th Cir. 1982).Google Scholar

31 423 US. 362 (1976) (overturning a district court order on the grounds that it “injected itself into the internal disciplinary affairs of [the police department].” See also United States v. Stanley, 55 U.S. L.W. 5101 (June 23, 1987) (rejecting an implied action for damages by an alleged victim of Army LSD testing).Google Scholar

32 In Green Mansour, V., 474 U.S. 64 (1985), for example, the majority held that the Eleventh Amendment forbade the district court from issuing a declaration or providing notice that the state of Michigan's AFDC program had been operating inconsistently with federal law.Google Scholar

33 One interesting limitation found in Heckler v. Day, 467 US. 104 (1984), was that a specific district court injunction forcing compliance with a congressional prohibition on unreasonable delay was an abuse of separation of powers. See also Posner at 213–14.Google Scholar

34 See Gilpin, N.Y. Times (cited in note 2).Google Scholar

35 See, e.g., Illinois V. Moran. 740 F.2d 533 (7th Cir. 1984). Judge Posner's opinion allowed defendant to kill plaintiffs' efforts to get the grand jury transcripts of defendant concerning alleged antitrust violations.Google Scholar

36 The lawsuit was filed by the New York Civil Liberties Union through a special children's rights project. See Chambers & Wald, in Mnookin, ed., at 75 (cited in note 4).Google Scholar

37 See M. Weber, 2 Economy and Society 812 (G. Roth B. C. Wittich eds., Berkeley: University of California Press, 1978); R. Lempert & J. Sanders, An Invitation to Law and Social Science 60–68 (New York: Longman, 1986) (discussing “deep” and “shallow” adjudication); Macklin, 3 N.Y.U. Rev. L. & SOC. Change (cited in note 27). Austin Sarat coincidently uses the term “procedural formalism” in a comparable way to criticize recent developments in A. Sarat, The “New Formalism” in Disputing and Dispute Processing, Law & Soc'y Rev. (forthcoming).Google Scholar

38 See Weber, M., 2 Economy and Society at 884.Google Scholar

39 Id. at 812.Google Scholar

40 Id.Google Scholar

41 See Posner, , Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case W. Res. L. Rev. 179, 185 (198687).Google Scholar

42 E.g., at 201. (“Formalism is often thought to be hypocritical and wrong. But this depends on the period.”).Google Scholar

43 Posner, , 37 Case W. Res. L. Rev., at 185. Posner is not bothered by the formalism because he considers economic analysis “realistic” in the major premises.Google Scholar

44 475 US. 574 (1986).Google Scholar

45 106 S.Ct. at 1362.Google Scholar

46 Weber can also be invoked here: “it is primarily the capitalist market economy which demands that the official business of public administration be discharged precisely, unambiguously, continuously, and with as much speed as possible.” See Weber, M., 2 Economy and Society at 974 (cited in note 37).Google Scholar

47 It is true, however, that a court could decide without much factual analysis that foster children represent a kind of property right, and then conclude by requiring a hearing. See Chambers & Wald, in Mnookin, ed., at 107 (cited in note 4). But that kind of formalism is unlikely to be persuasive enough to allow much judicial innovation. See id. at 127–28.Google Scholar

48 M. Shapiro, Courts (Chicago: University of Chicago Press, 1981).Google Scholar

49 See, e.g., Galanter, , The Day After the Litigation Explosion, 46 Md. L. Rev. 3 (1986); Roper, The Propensity to Litigate in State Trial Courts, 1981–84, 1984–85, 11 Just. Sys. J. 262 (1986); Resnik, 53 U. Chi. L. Rev. at 520, 534 (cited in note 15).Google Scholar

50 See R. Hayden, The Cultural Logic of a Political Crisis: Common Sense, Hegemony, and the Great American Liability Insurance Famine of 1986 (unpublished manuscript).Google Scholar

51 See, e.g., Cavanaugh & Sarat, Thinking About Courts: Toward and Beyond a Jurisprudence of Judicial Competence, 14 Law & Soc'y Rev. 371 (1980); M. Rebell & A. Block, Educational Policy Making and the Courts (Chicago: University of Chicago Press, 1982); Chambers & Wald, in Mnookin, ed., at 129–30 (cited in note 4).CrossRefGoogle Scholar

52 An interesting discussion of some of the virtues of inefficiency is Gross, The American Advantage: The Value of Inefficient Litigation, 85 Mich. L. Rev. 734 (1987).CrossRefGoogle Scholar