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Thursday, May 13, 2010

P v. D = Non-Formalist v. Formalist?

Here’s a proposition that I don’t think I’ve seen articulated, but which rings true to me: Being on the D (both civil and criminal defense) side of litigation tends to involve urging courts to engage in formalist analysis, while being on the P (plaintiff & prosecution) side tends to involve advocating some version of non-formalism.  Caricature, observations, and questions follow the jump.

I spent the bulk of the litigation portions of my time in practice on the D side, with a roughly equal split between civil and criminal.  Based on that experience, a rough caricaturization of the dynamic goes like this:  P asserts that some bad stuff happened, and offers up a handful of legal theories that P hopes support the imposition of consequences.  P’s inclination is to emphasize the badness of the stuff that happened (‘twas very bad indeed), and not to be too precise about the specific connections between the nature of the bad stuff and the requirements of the legal rules (it was bad enough that it’s got to fit somewhere, and did we mention that it was bad?).  D, on the other hand, is very well aware that a given legal theory requires elements A, B, C, and D to be established (every single one of them), and wishes to emphasize that by God P has done nothing to establish C (nothing! And sure maybe some things that could be perceived as not good happened but hard cases make bad law, dontcha know).  If you’re a P there seems to be an incentive not to commit yourself to specifics until you have to, while as a D you want to nail things down as precisely as possible so that you know what you’re fighting against and can get to work attacking it.

Maybe that’s so obvious as to be unremarkable.  (Even if it is, there are of course exceptions and qualifications aplenty to be made.)  But it seems to reveal a split that’s not ordinarily accounted for in the standard depictions of the politics of the various sides.  For example, the American Trial Lawyers Association is open only to civil plaintiffs' and criminal defense lawyers.  And my guess would be that most (probably all) empirical researchers would code judicial decisions in favor of the prosecution and civil defendants as conservative, and decisions in favor of criminal defendants and civil plaintiffs as liberal.  On the other side of the coin, I think it helps tell the story about how it is that Justice Scalia has been behind so many decisions that favor criminal defendants.

Is this obvious?  Is it wrong?  Assuming it’s correct, what are the implications?  Do long-time practitioners on one side or the other become habituated to certain modes of thought, which would in turn be reflected in their behavior as judges?  Has this been discussed somewhere, and I’ve just missed it?

Posted by Chad Oldfather on May 13, 2010 at 03:09 PM in Judicial Process | Permalink


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The recent move away from formalism in patent law (ebay and KSR in particular) is generally bad for plaintiffs, but those are maybe unusual cases--ebay because any balancing is worse than an "I win" rule, KSR because the plaintiffs are essentially defendants on invalidity. This is probably generalizable, that as for affirmative defenses, the roles reverse.

Certainly in the AEDPA area, defendants like "clearly established law" to be broadly defined, but then again the defendants are actually petitioners (seeking relief), so actually that's not an exception either.

Posted by: anon | May 13, 2010 3:31:50 PM

Chad -- interesting comments!! On the criminal side, I don't think it's often, or even usually, that way though. Often times, the P (govt) is pressing what you describe as the formalistic view while the D is arguing for the "reality" of the situation (sometimes at sentencing, for example). Maybe that's part of the reason why ATLA allows only civil Ps and criminal Ds to grace its ranks -- anti-formalist sympathy? But sometimes in the criminal context both sides may be making formalistic arguments (P for the substantive offense, D for errors in process or constitutional violations). It's rarer, I guess, to see a criminal P saying, "A bunch of bad stuff happened" without a legal theory, and I'd expect any good criminal D to crucify that criminal P in such circumstances. Maybe it's also in the nature of the burden of proof demanded of a criminal P as opposed to a civil P -- it's just not worth the time to proceed on a "bunch of bad stuff happened" theory when the burden is so much higher. Thanks for the post.

Posted by: Marc DeGirolami | May 13, 2010 3:38:21 PM

Maybe it was just the luck of the draw in terms of the cases I ended up with, and maybe it's because I was doing appellate work, but in my time as a PD I saw this dynamic all the time. A frequent example is where that State wants to get in 404(b) evidence. The motions invariably offered up a lengthy list of the remotely plausible options under 404(b), never committed to any of them, and spent a lot of time focusing on the facts of the prior acts. And that's reflective of a larger dynamic, which is that the defendant wants to limit consideration to whether he committed a particular act at a particular time with the required mental state, while the prosecution wants to (as Dressler characterizes it) expand the time frame and more generally to emphasize the badness of what happened and maybe also show that this isn't much of a sympathetic guy anyway. It seems to me very much the case that as a criminal defendant the rules are your friend and your best chance to win will more often be by appealing to rules than to sympathy or instrumentalism or whatever.

Posted by: Chad Oldfather | May 13, 2010 3:54:34 PM

The only counterexamples I can think of are laws providing for strict liability without needing to prove actual harm.

In the civil context these are cases where a plaintiff can get statutory damages by showing a technical violation of the law (e.g., Telephone Consumer Protection Act, Fair Debt Collection Practices Act, etc.). The plaintiff argues the formalist side while the defendant makes non-formalist arguments.

In the criminal context these are usually regulatory offenses. The prosecutor argues noncompliance with the letter of the law, while the defendant makes a non-formalist case - reasonableness, industry practice, etc.

Posted by: Another Anon | May 13, 2010 4:22:31 PM

Interesting thesis. As you imply, it sounds like one begging for some empirical research. If this is a law review article in germination, it might be worth thinking about your thesis in light of Duncan Kennedy's classic, "Form and Substance in Private Law Adjudication" (88 Harv. L. Rev. 1685 (1976)). I'm not sure the ideas perfectly align, but it's worth a look. The thrust of Kennedy's (descriptive) argument is that "formal realizability" (the rules-standards distinction) maps onto the "substantive" dichotomy between legal norms that represent "individualism" and those that represent "altruism." Rules map onto individualism and standards onto altruism. You of course aren't explicitly articulating the rules-standard distinction, but it might reasonably be thought of as a proxy for formalist v. non-formalist thinking (rules mapping onto what you're calling "formalist"). Picking up on Kennedy's language, "altruism" might then match with your notion of plaintiffs seeking broader legal norms of justice ("the badness of the stuff that happened"). Accepting Kennedy's thesis (not everyone does, by any means), the question would then really just be how much you can match "the badness of the stuff that happened" with plaintiffs.
Of course, if the rules-standards distinction can stand as a proxy for your formalist v. non-formalist line, then there's a lot of other stuff you can look at too, from Louis Kaplow to Kathleen Sullivan.
On a completely different topic but perhaps moderately relevant, the basic typology of parties in Marc Galanter's classic "Why the Haves Come Out Ahead" (9 Law & Soc. Rev. 95 (1974)) might also be useful. Galanter breaks the world into "one-shotters" (OSs) and "repeat players" (RPs), hypothesizing that RPs "play for rules" (i.e. care more about the rules than the OSs). So, we might expect the RPs to be more "formalistic" because they care more about binding future judges than the OSs and thus prefer rules. Generally, RPs are defendants in civil cases and prosecutors in criminal cases.

Posted by: Anuj Desai | May 14, 2010 9:48:18 AM

Thanks to all for these comments, which are all very helpful. Anuj, thanks in particular for the references to specific pieces. There’s definitely a kinship with rules v. standards. No doubt simply saying “formalism” alone as I did in the post is far too imprecise – I think what I’m getting at is a version of rule formalism versus some as-yet-to-be-defined antonym to that.

In any case, I’m convinced that this is an idea to elevate from the “musings” list to the “works in the very early stages of progress” list. As someone noted to me in an e-mail, there’s more of a connection here with some of my past work than I appreciated.

Posted by: Chad Oldfather | May 14, 2010 11:31:52 AM

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