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Friday, July 15, 2016

Old Man Yells at Cloud, First Installment

I wanted to use some of my blog posts this month to discuss some of the mechanical and organizational errors that I see authors make in their legal scholarship.  This is real nitty-gritty stuff, small mistakes that may not seem to matter much but which can really detract from a piece.  I was going to call this “Pet Peeves” but I think that that diminishes the importance of these points:  these are not peevish predilections for a certain style of writing over others; they are things that are simply incorrect and should be fixed.  On the other hand, I try not to take myself too seriously, so I have settled on “Old Man Yells at Cloud” (if you don’t know the origin, Google it).

For the first installment, I wanted to focus on a glaring error that I see more and more:  Many times authors will describe an opinion as “concurring” when it really should be “concurring in the judgment.”  It is as if those last three words don’t really matter, so they can be cut out.  I used to think this was solely the fault of student law review editors, and in turn, perhaps, the people who are supposed to be teaching them proper citation form.  I myself have had more than one set of editors “fix” my citations by changing “concurring in the judgment” to simply “concurring,” and have had to change them back.  But then I saw more and more first drafts of papers, before they even hit the law reviews, that contain the same error, by people who should know better.

The difference between a concurring opinion and one concurring merely in the judgment is an important one.  For one thing, a concurrence in the judgment is often more like a dissent than a straight concurrence.  Take, for example, the recent case of United States v. Jones, 132 S.Ct. 945 (2012), which addressed whether government officials conduct a “search” for purposes of the Fourth Amendment when they attach a GPS device to a vehicle and track its movements for 28 days.  The Justices were unanimous that this was a search but split 5-4 over the reasoning.  The Court held this to be a search because the government physically intruded upon a private space, by placing an object onto personal property, for the purpose of gathering information.  Justice Alito, joined by three of his colleagues, sharply disagreed with this “trespass theory” of the Fourth Amendment but concluded that tracking the suspect’s movements with a GPS device for so long infringed upon his reasonable expectation of privacy in his movements.  Justice Alito spends the bulk of his separate opinion criticizing the Court’s return to the old “trespass” doctrine, with much less space devoted to why the government’s conduct violated Jones’s reasonable expectation of privacy.  The opinion is much more dissent than concurrence but, of course, because he and his three colleagues would have come to the same result as the Court, it is a concurrence in the judgment.  To mischaracterize it as a “concurrence” is to make much more than a simple technical error; it is to mislead the reader into thinking that Justice Alito essentially agreed with the majority and simply wanted to add his two cents or try his hand at explaining what the majority was really saying.

By contrast, Justice Sotomayor wrote a true concurrence in Jones.  She joined the majority and agreed with its reasoning but wrote separately to indicate her agreement with much of what Justice Alito wrote in his separate opinion and to call into question some more general aspects of Fourth Amendment search doctrine.  Thus to call both what Justice Alito wrote and what Justice Sotomayor wrote “concurrences” conveys a false impression about the two opinions and their relationship to the majority.

Another context in which the distinction really matters is where there is no majority opinion.  Take, for example, Missouri v. Seibert, 542 U.S. 600 (2004), in which the Court addressed whether, where the police deliberately first obtained un-Mirandized statements from a suspect during custodial interrogation, later adherence to the Miranda warnings-and-waiver protocol rendered admissible a suspect’s subsequent statements.  A plurality of the Court said that the subsequent statements were inadmissible, even though they followed Miranda warnings and waiver, because the initial statements had been un-Mirandized.  However, the plurality looked to a number of factors – “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first” – to determine when such mid-stream warnings and waiver would render subsequent statements admissible.

Justice Kennedy wrote a separate opinion concurring in the judgment, agreeing with the outcome, but relying on only one factor: that the police deliberately obtained the first set of statements without adhering to Miranda in order to “soften up” the suspect into waiving her rights on the second go-round.  Had the same police conduct occurred inadvertently, Justice Kennedy presumably would have come out the other way.

Here, the distinction between a concurrence and a concurrence in the judgment is critical.  Had Justice Kennedy written a straight concurrence, presumably he would have joined the plurality, making it a majority.  Anything he wrote in such a concurrence would be important inasmuch as it explains the majority opinion from the perspective of the necessary fifth vote, but it would not have the force of law.  By stark contrast, the opinion as a concurrence in the judgment takes on much more significance.  Pursuant to the Court’s Marks rule, where there is no majority opinion, one must discern the narrowest point on which five Justices agree.  In many cases, this means that a concurrence in the judgment is the law because it represents that narrowest point.  In Seibert, that conclusion is more questionable, given that Justice Kennedy’s focus on the good or bad faith of the police seems to have been rejected by seven other Justices.  Lawyers, judges, law students, and academics have struggled to figure out what, if anything, is the holding of Seibert.  Mischaracterizing Justice Kennedy’s separate opinion in that case as a “concurrence” misleads the reader into thinking that she need not engage in that struggle because Justice Kennedy agreed with and joined his colleagues’ multi-factor analysis.  But he didn’t.  A mere concurrence might be enlightening but it is rarely as critical as a concurrence in the judgment when there is no majority opinion.

So “concurring in the judgment” does not mean “concurring.”  Authors and editors need to stop pretending that it does.

Posted by Michael J.Z. Mannheimer on July 15, 2016 at 12:38 PM in Constitutional thoughts, Things You Oughta Know if You Teach X | Permalink


It may be worth noting that there are also cases in which the distinction is all but meaningless -- and may even be misleading. In Washington v. Glucksberg, 521 U.S. 702 (1997), for example, Justice O'Connor wrote a short concurrence, Justice Ginsburg concurred in the judgment "substantially for the reasons stated" in Justice O'Connor's concurrence, and Justice Breyer, also concurring in the judgment, concurred in Justice O'Connor's opinion "except insofar as it joins the majority." Carefully labeling Justice O'Connor's opinion as a "concurrence" and distinguishing Justices Ginsburg and Breyer as "concurring in the judgment" (certainly accurate from a formal perspective) obscures the fact that all three were in almost complete agreement with one another.

Posted by: RQA | Jul 15, 2016 3:40:34 PM

"Pursuant to the Court’s Marks rule, where there is no majority opinion, one must discern the narrowest point on which five Justices agree. In many cases, this means that a concurrence in the judgment is the law because it represents that narrowest point. In Seibert, that conclusion is more questionable, given that Justice Kennedy’s focus on the good or bad faith of the police seems to have been rejected by seven other Justices."

Speaking as someone who named his blog after the Marks rule, you appear to be assuming that dissenters' agreement with a concurring or plurality opinion can bear on whether that opinion states the Court's Marks holding, and that the fact that a majority of Justices, including dissenters, thinks bad faith is irrelevant prevents bad faith from being the Marks holding of Seibert. Most circuits think (correctly) that that's wrong. On the best reading of Marks, Kennedy's opinion states Seibert's Marks holding if and only if four or more other Justices who concurred in the judgment are logically committed to reaching the result the Court reached in Seibert in cases where Kennedy's rule would dictate. Note that it doesn't matter whether the plurality agrees with Kennedy about the relevance of bad faith on this approach to Marks, just so long as they are logically committed to inadmissibility in all of the cases where Kennedy is, which theoretically could be the case even though bad faith isn't a part of their rule. That said, I don't think that the plurality is committed to inadmissibility in all the cases where Kennedy is.

Posted by: Asher Steinberg | Jul 15, 2016 5:31:01 PM

Asher: Thanks for the comment. And thanks for making me aware of the Narrowest Grounds blog. Looks good! BTW, that would also make a great name for a coffee place so I may steal it someday.

The post isn't really about Seibert but I do find that case fascinating. I agree with your last sentence: if the test is whether all four members of the plurality are "logically committed to inadmissibility in all of the cases where [Justice] Kennedy is," then his opinion fails the test. One can imagine a repeat of Elstad where the only difference is that the brief interrogation in the living room is done in "bad faith." The rest of the plurality, sans Justice Breyer (who, oddly, seems to agree wholeheartedly with Justice Kennedy, yet concurs in the plurality opinion) would presumably hold that Miranda warnings and waiver prior to a second, more complete interrogation would render the products of that interrogation admissible, pursuant to the multi-factor test. Yet Justices Kennedy and Breyer would presumably hold the later statements inadmissible based on the bad faith.

I suppose you are correct that, on a strict reading of Marks, it is irrelevant what the members of the dissent think, given that the Marks rule hinges on the opinions that support the judgment, not those that disagree with the judgment. Yet it still seems odd that the holding of the Court could be one that a majority of the Court outright rejects. (I guess that’s the case with Apodaca v. Oregon as well). If I recall correctly from the brief amount of research I did on this a few months ago, there are a few lower courts that take that position vis-à-vis Seibert, even if, as you point out, the majority agree with you.

Marks aside, I think Justices Kennedy and Breyer are just wrong to focus on bad faith.

Good stuff.

Posted by: Michael J.Z. Mannheimer | Jul 15, 2016 10:54:41 PM

RQA: Thanks for the comment. It’s also interesting that in Puerto Rico v. Sanchez Valle, the recent double jeopardy case, Justice Ginsburg wrote a concurring opinion that Justice Thomas joined, and Justice Thomas also wrote an opinion concurring in part and concurring in the judgment. So, by the transitive property, it seems that Justice Thomas concurred in the entire majority opinion and also concurred only in part and in the judgment. I’m not sure I’ve see that before.

Posted by: Michael J.Z. Mannheimer | Jul 15, 2016 11:01:50 PM

Michael, I think there's a difference between Breyer's test and Kennedy's test in Seibert.

Breyer's proposed test hinges on whether "the failure to warn was in good faith." It's not clear what that means, as there is no obvious standard to say what good faith or bad faith means in the context of Miranda. Officers are free to get an inadmissible statement if they like, so I don't think we know exactly what "bad faith" is. But whatever "good faith" means here, it's Breyer's only test.

Kennedy's opinion offers a different standard, I think. Under Kennedy's test, you first ask whether "the deliberate two-step strategy has been used," which seems to be an intent test: did the officer try to get a second admissible statement based on luring the suspect into speaking the first time? If the strategy was used, you next look to whether "postwarning statements that are related to the substance of prewarning statements" were made. If they were made, the admissibility of those statements hinges on whether "curative measures were taken" such that "a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver."

Posted by: Orin Kerr | Jul 16, 2016 11:04:43 PM


I don't read Justices Breyer and Kennedy as being very far apart at all. The main difference is that Justice Kennedy's opinion is more explicit and more detailed as to what his proposed test entails. As you indicate, Justice Kennedy’s test focuses on the intent of the officer. But so does Justice Breyer’s, as his cites to Elstad and Leon suggest: the Seibert plurality (which Justice Breyer joined) characterizes Elstad as a “good faith Miranda mistake,” i.e., there was no deliberate “flouting” of the Miranda requirements; and Leon also focuses on the state of mind of the officer, requiring (in effect) at least negligence on the part of the officer in relying on an invalid warrant order to trigger the Fourth Amendment exclusionary rule. And I don’t think Justice Breyer would disagree with Justice Kennedy’s second step, which looks to the presence of “postwarning statements that are related to the substance of prewarning statements.” If no statements were made at all, then of course there is no issue. So the only possible difference here is that perhaps Justice Breyer would contend that postwarning statements completely unrelated to prewarning statements must be excluded as a matter of course, if obtained in “bad faith.” Perhaps he meant that, but it is a lot to read into his brief opinion. And then, finally, I also doubt that Justice Breyer would disagree about postwarning statements being admissible if preceded by some sort of additional Miranda warning or warnings (“The statements you made previously before we gave you Miranda warnings cannot be used against you at trial; do you understand?”) Again, I grant that it’s possible that he disagreed with Justice Kennedy on this point, but I don’t read his silence as disputing such a common-sense approach.

The plurality’s treatment of intent of the officer, by contrast, is less clear. It does use words like “strategy,” “tactic,” and “technique,” which reek of intentionality. But it also eschews reliance on officer intent, and it doesn’t directly rebut the dissent’s characterization of the plurality as ignoring officer intent. So, at the least, I’d say there’s more daylight between Justice Breyer and the rest of the plurality than there is between him and Justice Kennedy.

I think the key here is your statement: “Officers are free to get an inadmissible statement if they like . . . .” I agree but I don’t think Justices Kennedy and Breyer do. I read their opinions (not just in Seibert but in other cases) as taking a police-conduct view of Miranda (Miranda requires the police to do certain things on pain of exclusion) rather than an admissibility-centered view of Miranda (Miranda sets the precondition for the admissibility of statements). I explore these two ways of thinking about Miranda in a forthcoming piece, The Two Mirandas (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756808).

Posted by: Michael J.Z. Mannheimer | Jul 18, 2016 12:55:25 PM


I guess we'll have to agree to disagree. Breyer joined the plurality and did not join Kennedy's concurrence in the judgment. True, Breyer said that he agreed with Kennedy to the extent Kennedy agreed with Breyer. But Kennedy did not say that he agreed with Breyer, so it's hard to credit that statement with any more than circularity.

As for Kennedy's view of Miranda, I don't think the cases support that impression; in particular, cases like Patane and Chavez seem to pretty clearly cut the other way.

Posted by: Orin Kerr | Jul 18, 2016 9:15:48 PM


In truth, I read Justice Kennedy's writings on this topic to be somewwhat inconsistent, but I do see him leaning toward the police-conduct model of Miranda. In Chavez, for example, he first wrote: "I agree with Justice Thomas that failure to give a Miranda warning does not, without more, establish a completed violation when the unwarned interrogation ensues." That supports your view that he takes the admissibility approach championed by Justice Thomas in that case and later in Patane. But just two paragraphs later, he wrote: "The Miranda warning . . . is a constitutional requirement . . . ." Well, that pretty clearly articulates the police-conduct view of Miranda: if you think police must generally give the warnings, then the warning is the "constitutional requirement"; if you think failure to give the warnings generally requires exclusion, then THAT -- exclusion of unwarned statements -- is the only "constitutional requirement." He also referred in Seibert to the Miranda "violation" by the police. Well, if you take the admissibility approach, it makes no sense to say that the police "violated" Miranda, just as it makes no sense to say that the police can "violate" Crawford v. Washington.

But, yes, I am happy to agree to disagree here!

Posted by: Michael J.Z. Mannheimer | Jul 19, 2016 4:41:34 PM

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