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Abstract:
Few pre-trial motions in our civil justice system elicit as much controversy as those for the certification of class actions. This Article offers the first account in the literature of the challenges faced today by courts in light of an important series of federal appellate decisions that direct the courts to resolve competing expert submissions on the class certification question in the pre-trial stage - even when the dispute overlaps with the merits of the litigation - in the course of determining the application of Rule 23.

Across broad swaths of class action litigation today, proponents of class certification invoke aggregate proof - evidence, typically of an economic or statistical nature, that presupposes the cohesiveness of the aggregate unit for litigation and, from that perspective, seeks to reveal quantitatively a common wrong attributable to the defendant. Debates over the proper role of aggregate proof unite what otherwise might seem disparate disputes over class certification today across securities, antitrust, RICO, consumer fraud, and employment discrimination litigation. Too often, however, courts have taken at face value the evidentiary form that aggregate proof assumes in class certification.

This Article urges a new conceptualization of the challenges facing courts in class certification today. The real question about aggregate proof in class certification is not one that speaks to the relationship between the court and the fact finder in the (usually, purely hypothetical) event of a class-wide trial. Rather, the institutional relationship that really matters is the one between the court and the legislature as expositors of governing law. Properly understood, aggregate proof offers not so much a contested view of the facts but, more fundamentally, a contested account of governing law - one eminently suited for judicial resolution and appellate correction de novo, without concern about possible intrusion into the role of the fact finder.

This Article exposes how renewed attention to the judicial role to say what the law is can lend coherence to the law of class certification, offering the first extended assessment of such controversial recent litigation as the civil RICO class action against the tobacco industry concerning its marketing of light cigarettes and the largest employment discrimination class action in history against Wal-Mart concerning the pay and promotion of its hourly female employees. The Article concludes by relating the analysis of class certification to larger changes in the civil justice system to grapple with the reality of settlement, rather than trial, as the endgame of litigation.

class actions, expert testimony, aggregate proof, fraud-on-the-market doctrine, civil RICO, tobacco litigation, Wal-Mart, employment discrimination, pattern or practice of discrimination

Abstract:
This article analyzes the emerging phenomenon of trans-Atlantic civil litigation on an aggregate basis - chiefly, though not exclusively, by way of class actions. European systems have shown a growing receptiveness for aggregate litigation, but treatments of this development have consisted largely of description. This article offers an analytical framework with which to anticipate the structural dynamics of transnational aggregate litigation in the twenty-first century.

Simply put, these structural dynamics will tend to recreate the difficulties seen in the context of nationwide class action litigation within the United States. The nationalization of US commerce led to aggregate litigation of a commensurately national scope. The result, however, was regulatory mismatch - for the scope of aggregation to expand to match the scope of the disputed nationwide activity, rather than the jurisdictional sovereignty of the forum. The globalization of commerce, coupled with the very multiplicity of approaches to aggregate litigation seen today, has a considerable tendency to replicate these mismatches - now, with international proportions. The recent Vivendi securities class action in the United States and the pathbreaking Royal Dutch Shell settlement under the 2005 Dutch collective settlement act confirm this trend.

The article then analyzes the vehicles by which to address regulatory mismatches. Here, too, the US experience is instructive, underscoring both the centrality and the limitations of the two vehicles by which to achieve a kind of de facto, informal governance: the principles for transnational claim preclusion and the latitude available for private contracts to shift disputes from litigation to arbitration.

class actions, aggregate litigation, group litigation, Royal Dutch Shell settlement, Vivendi securities litigation, preclusion, arbitration, CAFA, comparative procedure, American exceptionalism, European civil procedure

Abstract:
Settlements dominate the landscape of class actions, and the value of claims so resolved corresponds directly to the finality that the settlement offers. The law of class actions remains surprisingly unsettled, however, on where judicial review of class settlements may take place, what that review encompasses, and how the parameters for review should be defined. This article offers a cohesive account of the where, what, and how questions surrounding class settlement review, with particular attention to the long-running debate over collateral attacks on such settlements.

The where questioned is informed by the recognition in the Class Action Fairness Act (CAFA) of the difficulties presented by what one might describe charitably as the anomalous court - for CAFA proponents, one inclined to certify a nationwide class action when the vast majority of other courts would not. Most of the class action commentary assumes the original certifying court to be suspect and the subsequent reviewing court to be virtuous. Our contention is that the problem of the anomalous court is not confined to the initial class certification. The same problem of outlier courts can arise when the parties agree to park a class settlement for approval and, later, where a class member might mount a collateral attack on its binding effect. In the first instance, we look to see whether the forum for the class action was congressionally mandated or subject to strategic behavior by the parties.

The what question calls for a distinction between structural conflicts of interest in the class representation and other defects in the nature of bad deals for some or all of the class members. Only the former kind of defect bespeaks a proceeding illegitimate from its outset in a manner akin to the sorts of jurisdictional deficiencies thought to warrant collateral attacks on judgments in ordinary litigation.

The how question is one of proper preclusion for class settlements. The term collateral attack has been used sloppily to encompass everything from appeal to relief from the judgment to outright circumvention by filing anew in a different jurisdiction. In this section, we disentangle the various forms of procedural challenge to class action settlements and propose that the level of preclusion be conditioned by where the original suit was filed, how the challenge is presented, and what is the basis of the asserted challenge. Greater preclusion against collateral attack should flow from use of the congressionally preferred forum, as delineated by CAFA, as compared to the potentially anomalous court selected simply by settling counsel. The scope of preclusion should correspond, moreover, to the nature of the defect alleged in the class representation. Structural conflicts of interest warrant an approach that asks whether the rendering court considered and rejected the conflict in question, though not necessarily at the behest of the class member now the proponent of a collateral attack. Bad deals, by contrast, warrant an approach that would ask simply whether there was a full and fair opportunity to challenge the fairness of the settlement in the rendering court, in keeping with the broadened approach to standing in that setting in the Supreme Court's 2002 decision in Devlin v. Scardelletti.

Adequate representation, CAFA, Class Action Fairness Act, class actions, class settlements, collateral attacks, due process

Abstract:
This article focuses on the use of multibillion-dollar class settlements as vehicles for the wholesale resolution of mass tort litigation. Class actions in the mass tort context differ in kind from class actions in such familiar areas as consumer, antitrust, and securities law. In the mass tort context, there is a preexisting regime in which class members realistically can sue on an individual basis: namely, the tort system. The challenge at the heart of the mass tort class action lies in the design of the private administrative compensation systems characteristically created by class settlements - specifically, in the degree to which those private systems aspire to replace, or to compete over time with, the existing tort system. This article frames these issues of settlement design in terms of an underlying tension between autonomy for class members (their power to control the litigation of their individual tort claims) and peace for defendants. In institutional terms, class settlements stand in uncharted territory between public legislation (which may displace the tort system prospectively) and aggregate settlements (capable only of resolving groups of individual tort claims already pending).

The article initially discusses the class settlement process in terms of the progress of mass tort litigation over time. The further that one proceeds in the mass tort litigation cycle, the more likely it is that defendants will seek solutions akin to public legislation but that lack its procedural legitimacy. The asbestos class settlements struck down by the Supreme Court in Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. sought to afford "global peace" to defendants but only by constricting dramatically the autonomy that class members otherwise would have had in tort. The Supreme Court cast its decisions in terms of the procedural requirements for class certification. But, this article argues, those decisions are best understood in terms of their implications for the permissible structure of mass tort settlements themselves - what they may legitimately seek to achieve as a matter of tort law.

Drawing upon the recent class settlement in the fen-phen litigation, the article argues that courts and commentators should conceptualize mass tort class settlements in terms of options in corporate finance. The fen-phen settlement confers upon class members the rough equivalent of a put option - the power, if they choose, to compel the purchase of their existing right to sue in exchange for the compensation terms specified in the class settlement. Like put options in the stock market, the put options in the fen-phen settlement do not come free. The premium for the option consists of protection for defendants against the most normatively objectionable feature of punitive damage claims in the mass tort context - the prospect of excessive punishment through duplicative punitive damage awards. The article explains the strategic dynamics behind this settlement structure, discusses how the structure may be generalized to other mass torts, and advances a normative argument for the appropriateness of the trade of put options for the opportunity to seek punitive damages. The upshot is to identify a specific, recurring form of exchange that can afford a meaningful modicum of peace for defendants while, at the same time, respecting the individual autonomy of class members.

Abstract:
This article will appear in a larger symposium on the twentieth anniversary of the Supreme Court's decision in Phillips Petroleum Co. v. Shutts. There, the Court famously overturned the application of Kansas substantive law to a nationwide class action brought in Kansas state court concerning a contractual dispute over royalties associated with natural gas leases. In overturning the choice of Kansas law on due process grounds, the Court voiced two concerns: first, concern about potential arbitrariness in the choice made and, second, resistance to what the Court deemed "something of a 'bootstrap' argument" - the invocation by the Kansas court of the class-wide nature of the litigation as a consideration in the choice-of-law analysis.

Part I of this article situates the anti-bootstrapping stricture in Shutts as the intellectual precursor for the Court's later encounters with the class action as an engine for law reform in both Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. Amchem and Ortiz contain within them a significant, though largely unarticulated, theory about the limited authority of the class action to achieve law reform. Both decisions embody the proposition that the class action device enjoys no freestanding authority to alter preexisting rights as delineated by substantive law. Part I shows how the anti-bootstrapping stricture in Shutts both anticipates and fits within this broader account of the institutional position occupied by the class action vis-a-vis public legislation.

Part II observes that the impulse to use choice of law to drive the certification of nationwide class actions has not ended with Shutts. A small but consequential minority of courts in recent years have certified nationwide classes in consumer litigation based upon the choice to apply a single body of law - this time, the law of the defendant's principal place of business. Part II focuses on what may well emerge as the trickiest scenario for application of the anti-bootstrapping stricture in the legal world since the enactment of the Class Action Fairness Act (CAFA) in 2005: a nationwide class brought in, or removed to, a federal court sitting in a state where the highest state court has clearly established bootstrapping as part of its choice-of-law principles for consumer class actions. The Court's 1941 decision in Klaxon v. Stentor Manufacturing Co. directs a federal court in a diversity case to apply the choice-of-law principles of the state in which that court sits. The CAFA, however, offers grounds to deviate from this approach where the applicable state choice-of-law principles encompass bootstrapping. The article develops an argument along these lines grounded in existing Court precedent on the parameters of the Erie doctrine - specifically, the notion of the CAFA as an "affirmative countervailing consideration" that should trump the ordinary application of Klaxon where it would lead to bootstrapping.

Amchem, bootstrapping, CAFA, choice of law, Class Action Fairness Act, class actions, conflicts of law, diversity jurisdiction, due process, Erie, Klaxon, preexistence principle, removal, Shutts

Abstract:
This article will appear as part of a symposium on issues sparked by the landmark multibillion-dollar punitive damage award against the tobacco industry in Engle v. R.J. Reynolds Tobacco Co. The article addresses recent calls for settlements of mandatory class actions as a way to resolve liability for punitive damages in whole categories of mass tort litigation. Focusing upon the nature of punitive damages within the institutional regime of the tort system, the article contends that such settlements are not, and should not be, legally viable. In support, the article derives from first principles a conception of the justification for, and parameters of, the mandatory "limited fund" class action under Rule 23(b)(1)(B).

The article goes on to argue that the recent opt-out class settlement in the fen-phen litigation offers a legally superior way to build upon the insight that resolution of punitive damage liability may serve as a catalyst for defense concessions as to compensation. The reasons for the apparent lack of pursuit of such a settlement structure in the tobacco litigation are complex but appear to stem, in substantial part, from rivalries between would-be counsel for a mandatory punitive damage class and their more trial-oriented competitors within the plaintiffs' bar.

Abstract:
Multiple-claimant representations - class actions and other group lawsuits - pose two principal-agent problems: Shirking (failure to maximize the aggregate recovery) and misallocation (distribution of the aggregate recovery other than according to the relative value of claims). Clients have dealt with these problems separately, using contingent percentage fees to motivate lawyers to maximize the aggregate recovery and monitoring devices (disclosure requirements, settlement vetoes, and third-party review) to encourage appropriate allocations.

The scholarly literature has proceeded on the premise that monitoring devices are needed to police misallocations, because the fee calculus cannot do the entire job. This paper shows that this premise is mistaken and that its consequence has been to misdirect our understanding of the importance of information problems and bargaining costs in attorney-client relationships. In fact, it is relatively straightforward, as a mathematical matter, to design a two-part contingent fee arrangement that incentivizes a lawyer to both maximize an aggregate recovery and allocate it according to relative claim values. The failure of the market for multiple-claimant representations to generate fee arrangements of this type therefore reflects the operation of empirical factors, not the inherent limits of contingent fees.

We believe the principal barriers are information and bargaining costs. Two-part contingent fee arrangements require more information than claimants or attorneys are likely to possess and require more expensive negotiations than the monitoring devices the market actually employs. Monitoring devices are thus cheaper substitutes for more refined contingent fee arrangements, rather than unique solutions to allocation issues.

Attorneys fees, contingency fees, principal-agent, allocation, class actions, aggregate settlements

Abstract:
This article, one of several for the seventy-fifth anniversary volume of the University of Chicago Law Review, assesses the intellectual contribution of Harry Kalven, Jr. and Maurice Rosenfield's 1941 article in that journal on "The Contemporary Function of the Class Suit." Kalven and Rosenfield anticipated what would emerge thereafter as among the most distinctive features of the American civil justice system: the elaboration, in parallel, of both private class action litigation and public enforcement by the administrative state.

Whereas Kalven and Rosenfield sought to delineate the "contemporary function" of the class action, the agenda for the law today consists of resolving two contemporary dilemmas to which that function has given rise. The first dilemma speaks to the tension between the class action device as a vehicle for privatized enforcement and the allocation of authority within the United States along both federal-versus-state and public-versus-private lines. The challenges for the law today in these regards consist of addressing two situations that are the converse of each other. The first consists of what one might describe as a class in search of a settlement; the second involves a settlement in search of a class. Recent developments from the Class Action Fairness Act to the controversial employment discrimination class action in Dukes v. Wal-Mart, Inc. are discussed in this light.

The second dilemma stems from the recognition that settlements, not adversarial trials, stand as the endgame for class actions. Here, there is a need both for finality by way of class settlements and for attentiveness to the process due to absent class members. Kalven and Rosenfield's comparison of class actions and the administrative state has the potential to set longstanding debates over due process for absent class members on a new path. Current doctrine casts the basis for preclusion of class members in terms of a mixture of protections in the nature of individual autonomy (rights to participate and to opt out) and fiduciary oversight (from both class counsel and the rendering court). Since the early twentieth century, however, procedural thinking in connection with the administrative state has focused less on the individual autonomy familiar to one-on-one litigation and more on measures to hew - if only roughly - the loyalties of regulators over time to the interests of those they purport to serve. In an era when empirical research has documented the rarity with which rights of individual autonomy are actually exercised in class actions, the law of due process in that sphere would benefit from redirection along lines familiar to the administrative state. The article closes with analysis of some promising developments along these lines, with reference to the emerging literature on positive political accounts of the administrative state.

administrative state, Class Action Fairness Act, class actions, due process, positive political theory, settlement, Wal-Mart

Abstract:
The law of aggregate litigation has witnessed the emergence of three significant debates in recent years. Scholars of class actions have debated the normative significance of the settlement pressure exerted upon defendants by judicial decisions to certify litigation to proceed on a class-wide basis. The courts themselves have diverged over the validity of provisions in consumer and other contracts that not only subject disputes to mandatory arbitration but also purport to forbid claimants from conducting the arbitration proceeding on a class-wide basis. Congress, too, has entered the fray over aggregate procedure, enacting the controversial Class Action Fairness Act of 2005 (CAFA) to facilitate the removal to the federal courts of proposed class actions involving state-law claims.

This article unites the discourse about these three seemingly separate questions of aggregate procedure. All three raise common questions about the proper relationship between aggregation and underlying substantive law - in particular, about the institutional authority that a decision to afford or to withhold aggregate treatment may wield to effectuate reform in substantive rights. By regarding aggregation from the standpoint of institutional authority, the law may discern with greater precision when class settlement pressure is illegitimate and when it raises no normative concern. Likewise, an institutional perspective helps to pinpoint the questions that courts should ask when confronted with challenges to waivers of class-wide arbitration. The article closes by relating these topics to an emerging debate over the application of choice-of-law principles to proposed nationwide class actions in the federal courts pursuant to CAFA.

class actions, CAFA, settlement, class settlement pressure, class-wide arbitration, choice of law, aggregation, litigation

Abstract:
This essay - part of a class action symposium - discusses the normative implications of new empirical research by Professors Ted Eisenberg and Geoffrey Miller on incentive awards to class representatives and a prominent earlier study by the same authors on class counsel fee awards. Part I of the essay highlights the respects in which incentive awards to class representatives parallel class counsel fee awards - specifically, by providing restitution for costs and risks uniquely borne by such persons by comparison to absent class members. This Part discusses how systematic examination of incentive fees has the potential to move judicial administration of awards on that subject in the same direction as recent developments regarding class counsel fees.

Part II supplies the natural counterpoint, identifying aspects of incentive fee awards with no close analogues in the world of class counsel fees. The first such aspect relates to the aspiration to induce high-quality monitoring of class counsel by the class representative, not just by way of a restitutionary award but also, potentially, by providing some manner of reward or bounty. The essay criticizes the stance of the Private Securities Litigation Reform Act of 1995 (PSLRA), which authorizes restitutionary awards to lead plaintiffs in securities class actions but disallows awards in the nature of a reward for high-quality monitoring. This stance is ironic, at the very least, given that other features of the PSLRA actually celebrate the ideal of high-quality monitoring by institutional investors. Research on the role of such investors as lead plaintiffs under the PSLRA, if anything, suggests that the incentives for them so to serve may be too low under current law.

Part II goes on to discuss what one might call the "gatekeeping" function of the class representative - whether to defeat the removal of a class action to federal court (at least, prior to the Class Action Fairness Act of 2005) or to enable class counsel to secure control of the litigation vis-a-vis competitor firms within the plaintiffs' bar. The essay notes that, in the latter situation, there is a substantial prospect that class representatives might engage in rent extraction by demanding side payments from class counsel. The essay concludes with reflections on the normative implications of such payments, referencing the ongoing criminal investigation commonly understood to concern the pre-PSLRA conduct of the prominent securities plaintiffs' law firm formerly known as Milberg Weiss Bershad Hynes & Lerach.

CAFA, class counsel, class actions, attorneys' fees, gatekeeping, incentive awards, Milberg Weiss, PSLRA, rent extraction, restitution

Abstract:
When one hears the term “aggregation” in civil litigation, the context that comes to mind involves the long-running debate over class actions. Viewed within its own terms, that debate tends to convey the impression that the world neatly divides itself into the mass effects somehow unique to class actions and the confined realm of one-on-one litigation. In the midst of this debate, a closely related set of issues has gone curiously underexplored. Here, the concern is not over some deviation from the one-on-one lawsuit. Rather, the basic suggestion is to circumscribe what an ostensible individual action may do in order to prevent that lawsuit from exerting some manner of binding force upon nonparties who are broadly similar to the parties involved. The idea, in other words, is to constrain what individual litigation may do, precisely because it is not a “de facto class action” empowered to act upon nonparties. Variations of this concern have emerged across what might seem an unrelated array of contexts: the Supreme Court’s 2008 decision in Taylor v. Sturgell, rejecting the procedural doctrine of “virtual representation”; the Court’s 2007 decision in Philip Morris USA v. Williams, regarding the constitutional due-process limits on punitive damages; and the multibillion-dollar deal reached in 2007 to resolve mass tort litigation over the prescription pain reliever Vioxx. This Article explains that there is something deeper going on here but that its nature and implications remain undertheorized. Each instance involves a more general phenomenon, what this Article delineates as “embedded aggregation.” In each, a doctrinal feature of what is ostensibly individual litigation – the scope of the right of action asserted, the nature of the remedy sought, or the character of the wrong alleged – gives rise to demands for the suit to bind nonparties in some fashion, beyond the ordinary stare decisis effect that any case might exert. Ironically, the features of Taylor, Williams, and the Vioxx litigation that make them situations of embedded aggregation also, in all likelihood, would defeat efforts to aggregate them overtly as class actions. The result is to leave the law today in a kind of procedural Catch-22, whereby embedded aggregation seemingly invites class-action treatment, but such treatment is unavailable due to the very features that make the situation one of embedded aggregation. This Article frames an emerging prescription for situations of embedded aggregation in a world in which the modern class action does not, and will not, realistically shoulder the entire regulatory load. The way out of the procedural Catch-22 in which the law finds itself consists of “hybridization” – the combination of individual actions with some manner of centralizing mechanism, just not always the unity of litigation generated by the class action device. Moving outside the parameters of the class action means shifting into new settings a similar need for a centralizing mechanism and, crucially, for legal regulation of the manner in which it may exercise coercive power. In so doing, this Article seeks to break down the prevalent supposition of a neat division between the perceived need for legal regulation of class actions and the supposedly benighted world of autonomous individual lawsuits. The time has come to move the conversation about aggregate procedure beyond the class action device – to broaden the menu of approaches available for our modern world of mass civil claims. Such an approach actually would remain more true to the historical emergence of the class action device over time than a prescription for either a vast expansion of that device or reflexive individualization in all situations of embedded aggregation. In addition, hybridization accords better with the emerging transnational conversation about the design of aggregate litigation procedures.

aggregate litigation, aggregate settlement rule, class actions, Freedom of Information Act, punitive damages, Vioxx

Abstract:
Conventional wisdom holds that regulation by the administrative state generally establishes minimum standards for product manufacturers that tort liability may usefully supplement. This account of the relationship between tort law and the administrative state has come under increasing attack in recent decades. This Article focuses on what many regard as among the most controversial settings for such attacks today: contentions that regulatory action by the federal Food and Drug Administration (FDA) operates to preempt product liability suits under state law against the manufacturers of medical devices and prescription drugs.

The Article initially explores the debate over FDA preemption as a doctrinal matter, drawing on insights from litigation over medical devices to parse the more difficult preemption issues presented in suits over prescription drug labeling. As to the latter, the Article focuses on recent litigation over an alleged causal link between the leading class of antidepressant drugs and suicide by some drug users.

The Article then shifts from doctrine to institutional design, explaining why tort law and the administrative state have come into conflict in recent years and considering how law reform might approach preemption questions based on a richer understanding of the two areas. The challenge for the future involves using the prospect of preemption to bolster the predicates for preemption itself within the regulatory system. Fresh thinking about preemption would challenge the pharmaceutical industry to act on its depictions of tort liability run amok by embracing enhanced information disclosure and policing of fraud in the regulatory process - the logical predicates for the kind of optimal risk regulation by the FDA that should carry preemptive effect. Under this approach, the prospect of preemption would function as a preference-revealing device for regulated industry and thereby position it to settle by way of its revealed behavior the seemingly intractable academic debate about the consequences of pharmaceutical liability.

There are implications for tort theory as well. A major trend in tort theory has been to think about tort liability as a form of privatized regulation. The approach offered here seeks to initiate a conversation about how the regulatory sphere might partake of the capacity of tort litigation to update information about the risks posed by pharmaceutical products in the marketplace.

administrative law, antidepressants, Chevron, drugs, FDA, labeling, medical devices, pharmaceuticals, preference revealing, preemption, products liability, SSRIs, tort law

Abstract:
This book chapter - part of a larger, interdisciplinary collection of scholarship on lawsuits against the gun industry - situates gun litigation within the larger context of mass tort litigation. The chapter explores the implications of gun litigation as a species of "social policy tort" litigation. The defining feature of such litigation consists of its objectives not only to seek conventional damages for past misconduct but also to precipitate prospective changes in product marketing in a manner independent from conventional regulation.

The chapter initially places gun litigation within two longer-term trends: developments in tort theory and a roughly contemporaneous transformation in the political landscape for regulatory programs in the public sector. The chapter then argues that gun litigation seeks to implement its prospective regulatory program in a manner strikingly unmindful of the lessons learned about conventional regulation in the public sphere - lessons that transcend partisan lines. Public regulation has increasingly focused on systematic comparison of proposed regulatory interventions based upon their relative cost-effectiveness and on political accountability in regulatory policy decisions. By contrast, gun litigation by municipalities seeks to frame questions surrounding industry marketing practices on a stand-alone basis, as matters to be addressed irrespective of other possible interventions to protect public safety and through arrangements of litigation finance that often are removed from the conventional budgetary process. The chapter further compares the negligent marketing claim in gun litigation with the longstanding difficulties associated with the handling of tort claims for latent disease.

Abstract:
This articles takes a fresh look at the Self-Incrimination Clause of the Fifth Amendment. I argue that, for more than a century, the Supreme Court has misunderstood what it means "to be a witness" within the parlance of the Clause.

In 1886, the Supreme Court in Boyd v. United States held that the Self-Incrimination Clause, among other constitutional provisions, bars the government from compelling persons suspected of crime to turn over self-incriminatory documents. In the century since Boyd, the Court has beaten a steady retreat from this position, even as the Court has extended dramatically the reach of the Fifth Amendment with regard to self-incriminatory statements. In the wake of the Court's 1976 decision in Fisher v. United States, observers accurately have described Boyd as dead. Under the reasoning of Fisher, the Fifth Amendment generally does not bar the government from compelling a person to produce documents that are self-incriminatory in content. Only when the person's act of production itself reveals new information to the government beyond the contents of the documents themselves does the Fifth Amendment apply. The wisdom of this approach has formed the focus of ongoing debate in the secondary literature and, just last year, served as the subject of heated appellate debate in connection with Independent Counsel Kenneth Starr's prosecution of Webster Hubbell.

Contrary to the view of the modern Court and the substantial weight of academic commentary, I argue that the text of the Fifth Amendment, the historical context of its adoption, and the Court's own analytical framework for self-incriminatory oral statements together form a convincing case to resurrect the holding of Boyd. The phrase "to be a witness" does not merely encompass the providing of evidence that itself is brought into being under government compulsion in a manner akin to witness testimony at trial. Properly understood, the phrase "to be a witness" should be read as synonymous with the phrase "to give evidence" proposed by state ratifying conventions upon consideration of the original Constitution.

My focus is not exclusively textual or historical, however. Rather, in doctrinal terms, my reading serves to clarify the relationship between the Fifth Amendment and the other major constitutional provision that governs the gathering of information by the government in the criminal process: namely, the Fourth Amendment. The crucial dividing line is not, as the modern Court would have it, between those acts of production that give the government additional incriminatory information beyond the contents of the materials produced and those acts of production that do not. Rather, the fundamental distinction is between the compelled giving of self-incriminatory evidence to the government (categorically barred by the Fifth Amendment) and the unilateral taking of evidence by the government (regulated by the Fourth). The article goes on to demonstrate how such a reading explains several controversial aspects of Fifth Amendment jurisprudence, including the use immunity doctrine and the ban on prosecutorial comment upon a criminal defendant's invocation of that Amendment to support a refusal to testify at trial.

Abstract:
The Supreme Court has long recognized a constitutional right on the part of criminal defendants to present witnesses. Although this right is not set forth explicitly in the Constitution, the Court correctly has regarded it as a necessary implication of the Compulsory Process Clause of the Sixth Amendment. It comes as no surprise that the Court has invoked the right in order to strike down evidence rules that peculiarly disadvantage criminal defendants with regard to the presentation of witness testimony. More surprisingly, the Court also has invoked the right to invalidate, as applied to criminal defendants, at least some rules of evidence that are generally applicable -- that is, rules that restrict the admission of a particular type of witness testimony, whether offered by the prosecution or the defense. Under the Court's current approach, evidence rules that operate to prevent the presentation of defense witnesses "may not be arbitrary or disproportionate to the purposes that they are designed to serve."

I contend that the Court's decisions in the area -- especially, when read in light of the Court's most recent decision in United States v. Scheffer -- form an incoherent, contradictory body of law. The Court's "arbitrary or disproportionate" standard is not simply flawed in application; rather, the standard fundamentally misconceives the nature of the right to present witnesses. Under the Court's current approach -- indeed, in the view of all modern commentators -- the right consists of an entitlement to exceptions from generally applicable rules of evidence, though the availability of an exception in a given instance has tended to turn upon ad hoc judgments by the Court itself. If taken seriously, an exception-based view of the right to present witnesses would throw into doubt such familiar features of evidence law as the rule against hearsay, limitations on the use of extrinsic evidence for purposes of witness impeachment, and rules of privilege.

A wide array of sources -- the historical context of the Compulsory Process Clause, recent learning on the related Confrontation Clause, considerations of institutional structure, the Court's approach to conceptually similar problems of constitutional law (e.g., in Employment Division v. Smith in the free exercise context), and sheer practical concern for the protection of criminal defendants as a whole -- together form a compelling case to reconceive the right as one of equal treatment. Specifically, the Court should apply strict scrutiny with respect to evidence rules that peculiarly disadvantage criminal defendants. By contrast, when the rule in question is an evenhanded one -- when the government, as rule maker, has determined to restrict the presentation of witness testimony by the government itselfas prosecutor in the same manner as it limits the defense at trial -- the Court should apply ordinary rationality review. The article concludes with a reassessment of the Court's leading cases in the area and applications of the foregoing approach to some conspicuously unequal aspects of the current Federal Rules of Evidence.