How to Sue a Robot

We are entering the age of robots where autonomous robots will drive our cars, milk cows, drill for oil, invest in stock, mine coal, build houses, pick strawberries, and work as surgeons. Robots, in mimicking the work of humans, will also mimic their legal liability. But how do you sue a robot? The current answer is that you cannot. Robots are property. They are not entities with a legal status that would make them amendable to sue or be sued. If a robot causes harm, you have to sue its owner. Corporations used to be like this for many procedural purposes. They were similarly tethered to human owners. Over time, courts and legislators abandoned the model of treating corporations solely as property and increasingly treated them as an independent artificial person for litigation purposes. Robots might also make a transition along those lines. If they do, which legal model should we adopt for robots? Are they more like an employee, a franchisee, a slave, a subsidiary, a child, an animal, a subcontractor, an agent, or something else altogether? Given the inherent path-dependence of procedural law, picking the right model will have important consequences and will be difficult to reverse. This Article lays the groundwork for this fundamental decision. It explains the urgency and importance of this decision and presents three analytical frameworks (ontological, deontological, and functional) for how we can approach the question of robots in civil litigation. Often unnoticed and unarticulated, these analytical frameworks structure important doctrinal and normative positions. The Article then applies these analytical frameworks to evaluate numerous concrete contestant models for treating robots as litigation entities. The resulting taxonomy exposes the weaknesses of analogizing robots to established models—none fits, and all would have negative practical consequences. Instead of utilizing an existing model, this Article argues that we must treat robots as a new litigation category that borrows insights selectively and partially from a range of the existing models. For example, we must craft a new in robotam personal jurisdiction doctrine to supplement the old in personam jurisdiction doctrine. Doing otherwise would expose procedure to doctrinal incoherence, legislation to policy mayhem, and parties injured by robots to unnecessary costs and insurmountable procedural hurdles

Trans-Personal Procedures

Recent court decisions have reignited a national debate about corporate personhood. This debate recognizes that the legal status of artificial persons is of great importance to the fabric of society, law, and politics. Questions about the status of artificial persons are typically raised in the context of substantive law, where corporate personhood has triggered strong reactions and important scholarship. But there is another, completely neglected side to this debate. The status of artificial entities is not solely negotiated in the context of substantive law. Procedure, similarly, must also choose whether to treat natural and artificial entities alike or not. This Article is the first to examine when, how, and why procedure differentiates between different types of entities (natural persons, corporations, government agencies, labor unions, Native American Tribes, etc.). The default is trans-personal procedures that do not vary based on the personhood or entity-type of the litigating parties, yet deviations from the trans-personal norm span the procedural spectrum and systematically advantage and disadvantage some entities over others. I argue that the problem is not the trans-personal norm, or the many exceptions to it, but ad hoc departuresf rom the norm, or blind adherence to the norm. Both are problematic and under-theorized. This Article demonstrates how different procedural values can be furthered or stifled by trans-personal rules and deviations from such rules. Before committing to trans-personal procedures or entity-specific treatment, we must understand how procedural values are affected by trans-personality. Procedural design neglects trans-personality at its own peril

Ethics by Appointment: An Empirical Account of Obscured Sanctioning in MDL Cases

Ethical norms in litigation are policed through overlapping regulatory regimes. One of these regimes is internal to litigation and split into different components, including Federal Rules of Civil Procedure 11, 26(g), and 37; Federal Rule of Appellate Procedure 38; 28 U.S.C. §§ 1927 and 1447(c); as well as courts’ inherent authority to sanction litigants and attorneys. In the standard narrative, these tools provide immediate corrections to unethical conduct, unlike bar sanctions or derivative malpractice actions that are delayed and uncertain. Together, these tools aim to effectuate the goal of Federal Rule of Civil Procedure 1: to make sure parties cooperate “to secure the just, speedy, and inexpensive determination of every action and proceeding.” This Essay assesses the extent to which these litigation sanction devices work in “every action,” or whether multidistrict litigation (“MDL”) cases are also idiosyncratic in this respect. Using docket sheets from numerous MDL cases, I examine how often and with what result internal sanctions are used in MDL cases. The findings show low usage rates and low success rates (compared to 10,000 non-MDL cases filed during the same time window). This suggests that courts in MDL cases have replaced the policing function of formal sanctioning devices with other devices, most prominently the power to select, empower, and replace lead counsel

Fractional Sovereignty

The axiomatic beginning of every conflict of laws case is that a court must choose the law of one sovereign and disregard the law of all other sovereigns. One wins, gets to set the rules and regulate behavior, all others lose. This all-or-nothing scenario is the result of enshrining an old view of indivisible sovereignty into conflict of laws rules. The Article begins by explaining how this happened. Despite the importance of this assumption of indivisibility, no articles have examined why and how it became enshrined in conflict of laws doctrine. All too often it is treated as a truism without need for explanation or examination. The explanation, it turns out, is not compelling and has more to do with inertia and historical conditions hundreds of years ago than present concerns. Next, the Article critiques undivided sovereignty as outdated, descriptively misleading, and beholden to normative claims that are incompatible with modern conditions and sensibilities. It also explains the harm that adherence to indivisible sovereignty creates within the currently dominant conflict of laws methodologies. In its place, the Article proposes that we reimagine conflict scholarship based on a fractional conceptualization of sovereignty. Instead of asking which sovereign gets to set all the rules, we should ask how to equitably share governance power and responsibility. The guiding insight of this proposal is that when conduct, assets, and litigants are distributed across multiple sovereigns, picking a single victor to provide governing law necessarily leads to a windfall of sovereignty for some and an undue denial of sovereignty for others. Instead of such a binary model of sovereignty, a fractional model of shared authority distributes the power to regulate conduct according to the fraction of the conduct that touches and concerns the sovereign. Sovereigns share responsibility over cross-border conduct. A deeper relationship to one sovereign leads to that sovereign having a greater fraction of influence, while a more fleeting relationship leads to a sovereign having a smaller fraction of influence. Each conflict of laws case would thus present a spectrum of influence to be divided into fractions among relevant sovereigns. Governing law in any given case is the mix of those fractions of influence. All concerned sovereigns would be able to regulate conduct but in a shared and mediated manner. Sovereignty becomes fractional

Transferred Justice: An Empirical Account of Federal Transfers in the Wake of Atlantic Marine

This Article presents empirical findings on motions to transfer in the wake of the Supreme Court\u27s decision in Atlantic Marine Construction Co. Inc. v. United States District Court for the Western District of Texas. Based on an original dataset of roughly 15,500 federal transfers over three years, it traces the evolving patterns of interdistrict transfers and how doctrinal changes affect the flow of cases between districts. These patterns suggest both beneficial and troubling aspects of the federal transfer system. On the beneficial side, transfers do important work in regulating and directing the massive flow of prisoners\u27 rights and habeas corpus litigation. Any reform of the federal transfer regime must be mindful of this important function. On the troubling side, many transfers in a broad range of cases occur very quickly, without hearings, and often on the initiative of the courts rather than the parties. This gives inexperienced and vulnerable plaintiffs little time to challenge the transfer. Also, many transfers benefit corporate defendants and adversely affect individuals whose cases are transferred far away from their chosen forum. Together, the findings of this Article suggest that transfers make litigation more efficient but also frequently tilt the litigation playing field in favor of institutional actors at the expense of individuals