Matthew A . Shapiro | Rutgers, The State University of New Jersey (original) (raw)

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Papers by Matthew A . Shapiro

Civil Wrongs and Justice in Private Law, 2020

Civil wrongs are conventionally redressed through civil litigation, which, in turn, is constitute... more Civil wrongs are conventionally redressed through civil litigation, which, in turn, is constituted and governed by “transsubstantive” rules of civil procedure. What place, if any, should the general processes of civil litigation and rules of civil procedure have in a theory of private law organized around the concept of civil wrongs? In answering that question, this chapter makes three claims. First, the civil recourse theory of tort law, which attaches particular importance to the concept of civil wrongs, presupposes a process for redressing those wrongs with several distinctive features, features associated more with the general structure of the civil justice system than with any substantive private law doctrines. Second, civil recourse theory follows many other wrongs-based accounts of private law in employing an “interpretive” methodology that commits it to deeming those procedural features a “basic” part of the substantive body of law it purports to illuminate through the concept of civil wrongs. Third, the procedural landscape presumed by wrongs-based accounts of private law such as civil recourse theory has been upended in recent decades by significant changes to the ways in which civil wrongs are, in practice, redressed. The upshot is that private law theorists may well have to choose between the “pragmatic” desire to situate private law in its modern procedural context and the normative ambition to explain private law in terms of a plaintiff-empowering understanding of civil wrongs.

Boston University Law Review, 2020

Dispute resolution has become increasingly shrouded in secrecy, with the proliferation of protect... more Dispute resolution has become increasingly shrouded in secrecy, with the proliferation of protective orders in discovery, confidential settlement agreements, and private arbitration. While many civil procedure scholars have criticized this trend for undermining the systemic benefits of public adjudication, the desirability of secrecy in civil litigation proves to be a much more complicated question.

On the one hand, some of those same scholars have recently sought to justify civil litigation in terms that, ironically, highlight the benefits of secrecy. Although this new justification remains somewhat inchoate, it is best understood as a claim that the procedures of civil litigation allow individual plaintiffs to realize one aspect of their dignity — which this Article labels “dignity-as-status” — by empowering them to call those who have allegedly wronged them to account and to thereby reassert their standing as equals. The problem is that civil litigation can also undermine another aspect of plaintiffs’ dignity — which this Article labels “dignity-as-image” — by requiring them to divulge sensitive personal information and thus to cede control over their public self-presentation. Secrecy can help to preserve this second aspect of plaintiffs’ dignity.

On the other hand, secrecy can also deprive plaintiffs of a potentially powerful expressive weapon in their quest to hold wrongdoers accountable. In conditions of socioeconomic inequality, weaker plaintiffs can sometimes turn the humiliating aspects of civil litigation to their advantage, intentionally revealing sensitive personal information that emphasizes their lower social status in order to shame their more powerful adversaries. It turns out that civil litigation can indeed promote plaintiffs’ dignity-as-status, but by affording them a venue in which to deliberately compromise their dignity-as-image — to humiliate, as much as ennoble, themselves.

Given the complex nature of dignity and the complex trade-off between secrecy’s dignitarian benefits and costs, plaintiffs should be given more control over how much of their personal information is disseminated beyond the immediate parties to a lawsuit — a prescription with implications not only for secrecy in civil litigation, but also potentially for several other prominent procedural issues.

Columbia Law Review, 2018

The rise of arbitration has been one of the most significant developments in civil justice. Many ... more The rise of arbitration has been one of the most significant developments in civil justice. Many scholars have criticized arbitration for, among other things, “privatizing” or “delegating” the state’s dispute-resolution powers and allowing private parties to abuse those powers with virtual impunity. An implicit assumption underlying this critique is that civil procedure, in contrast to arbitration, does not delegate significant state power to private parties.

This Article challenges that assumption and argues that we can address many of the concerns about arbitration by drawing on civil procedure’s solutions to its own delegation problem. From summonses to subpoenas to settlements, civil procedure pervasively delegates state power during ordinary civil litigation. With these delegations comes the potential for abuse. But rather than limit private parties’ access to delegated power before any abuse has occurred, civil procedure generally polices its delegations for abuse after the fact. It does so in three main ways: by rescinding delegated power, as in the appointment of discovery masters; by withholding enforcement from an exercise of delegated power, as in civil Batson; and by punishing abuse of delegated power, as in Rule 11 sanctions. Civil procedure’s delegation-policing doctrines allow the state not only to protect private parties from harm but also to avoid becoming complicit in private exercises of delegated power that offend important public values.

Arbitration’s delegations of state power present many of the same problems as civil procedure’s, and scholars have rightly criticized the current arbitration regime for essentially writing a blank check to private parties. But whereas most scholars have focused on restricting access to arbitration’s delegations by deeming broad categories of arbitration clauses unenforceable, this Article suggests adapting civil procedure’s delegation-policing doctrines for arbitration. Even if courts continue to enforce arbitration clauses more often than arbitration’s critics would prefer, they should police arbitration’s delegations more closely than the law now permits.

Civil Wrongs and Justice in Private Law, 2020

Civil wrongs are conventionally redressed through civil litigation, which, in turn, is constitute... more Civil wrongs are conventionally redressed through civil litigation, which, in turn, is constituted and governed by “transsubstantive” rules of civil procedure. What place, if any, should the general processes of civil litigation and rules of civil procedure have in a theory of private law organized around the concept of civil wrongs? In answering that question, this chapter makes three claims. First, the civil recourse theory of tort law, which attaches particular importance to the concept of civil wrongs, presupposes a process for redressing those wrongs with several distinctive features, features associated more with the general structure of the civil justice system than with any substantive private law doctrines. Second, civil recourse theory follows many other wrongs-based accounts of private law in employing an “interpretive” methodology that commits it to deeming those procedural features a “basic” part of the substantive body of law it purports to illuminate through the concept of civil wrongs. Third, the procedural landscape presumed by wrongs-based accounts of private law such as civil recourse theory has been upended in recent decades by significant changes to the ways in which civil wrongs are, in practice, redressed. The upshot is that private law theorists may well have to choose between the “pragmatic” desire to situate private law in its modern procedural context and the normative ambition to explain private law in terms of a plaintiff-empowering understanding of civil wrongs.

Boston University Law Review, 2020

Dispute resolution has become increasingly shrouded in secrecy, with the proliferation of protect... more Dispute resolution has become increasingly shrouded in secrecy, with the proliferation of protective orders in discovery, confidential settlement agreements, and private arbitration. While many civil procedure scholars have criticized this trend for undermining the systemic benefits of public adjudication, the desirability of secrecy in civil litigation proves to be a much more complicated question.

On the one hand, some of those same scholars have recently sought to justify civil litigation in terms that, ironically, highlight the benefits of secrecy. Although this new justification remains somewhat inchoate, it is best understood as a claim that the procedures of civil litigation allow individual plaintiffs to realize one aspect of their dignity — which this Article labels “dignity-as-status” — by empowering them to call those who have allegedly wronged them to account and to thereby reassert their standing as equals. The problem is that civil litigation can also undermine another aspect of plaintiffs’ dignity — which this Article labels “dignity-as-image” — by requiring them to divulge sensitive personal information and thus to cede control over their public self-presentation. Secrecy can help to preserve this second aspect of plaintiffs’ dignity.

On the other hand, secrecy can also deprive plaintiffs of a potentially powerful expressive weapon in their quest to hold wrongdoers accountable. In conditions of socioeconomic inequality, weaker plaintiffs can sometimes turn the humiliating aspects of civil litigation to their advantage, intentionally revealing sensitive personal information that emphasizes their lower social status in order to shame their more powerful adversaries. It turns out that civil litigation can indeed promote plaintiffs’ dignity-as-status, but by affording them a venue in which to deliberately compromise their dignity-as-image — to humiliate, as much as ennoble, themselves.

Given the complex nature of dignity and the complex trade-off between secrecy’s dignitarian benefits and costs, plaintiffs should be given more control over how much of their personal information is disseminated beyond the immediate parties to a lawsuit — a prescription with implications not only for secrecy in civil litigation, but also potentially for several other prominent procedural issues.

Columbia Law Review, 2018

The rise of arbitration has been one of the most significant developments in civil justice. Many ... more The rise of arbitration has been one of the most significant developments in civil justice. Many scholars have criticized arbitration for, among other things, “privatizing” or “delegating” the state’s dispute-resolution powers and allowing private parties to abuse those powers with virtual impunity. An implicit assumption underlying this critique is that civil procedure, in contrast to arbitration, does not delegate significant state power to private parties.

This Article challenges that assumption and argues that we can address many of the concerns about arbitration by drawing on civil procedure’s solutions to its own delegation problem. From summonses to subpoenas to settlements, civil procedure pervasively delegates state power during ordinary civil litigation. With these delegations comes the potential for abuse. But rather than limit private parties’ access to delegated power before any abuse has occurred, civil procedure generally polices its delegations for abuse after the fact. It does so in three main ways: by rescinding delegated power, as in the appointment of discovery masters; by withholding enforcement from an exercise of delegated power, as in civil Batson; and by punishing abuse of delegated power, as in Rule 11 sanctions. Civil procedure’s delegation-policing doctrines allow the state not only to protect private parties from harm but also to avoid becoming complicit in private exercises of delegated power that offend important public values.

Arbitration’s delegations of state power present many of the same problems as civil procedure’s, and scholars have rightly criticized the current arbitration regime for essentially writing a blank check to private parties. But whereas most scholars have focused on restricting access to arbitration’s delegations by deeming broad categories of arbitration clauses unenforceable, this Article suggests adapting civil procedure’s delegation-policing doctrines for arbitration. Even if courts continue to enforce arbitration clauses more often than arbitration’s critics would prefer, they should police arbitration’s delegations more closely than the law now permits.