Saturday, April 19, 2014

Lamberth in Cobell Part 3: The Sideshow and Its Message

To continue the Cobell story (earlier posts here and here), I want to turn to the case’s numerous and contentious collateral proceedings.  Much has been made (not just by Glenn) of the contempt citations to cabinet officers, the orders disconnecting the Interior Department’s computers from the Internet, and, of course, the class-wide notice orders.  I am not going to speculate on Judge Lamberth’s feelings or state of mind in making these rulings.  Instead, to counterbalance the perspective Glenn offers in the comments—by the way, thanks, Glenn, for commenting!—I want to place some of these episodes in a fuller context and see what conclusions present themselves.

The sideshow began early in discovery, when in February 1999 Judge Lamberth held then-Interior Secretary Bruce Babbitt and others in contempt for failing to produce documents years after the judge had ordered their production and for destroying documents the government had agreed to preserve.  (Three years after the suit was initiated, the government still couldn't produce the full trust records for the named plaintiffs.)   It’s worth noting that Judge Lamberth was already famously intolerant of litigation misconduct, especially by the government.

After the Phase 1 trial (discussed here), the computer security issue bubbled up when the Bureau of Indian Affairs’ Chief Information Officer said publicly that "[f]or all practical purposes, we have no [IT] security . . .[o]ur entire network has no firewalls" and "can be breached by a high school kid."  The second contempt hearing began in late 2001 after additional evidence suggested that Interior officials knew about this and other trust problems and hadn't disclosed them in either their trial testimony or their status reports to the court. (The judge imposed no sanction with the contempt findings, but the government appealed because, the Court of Appeals explained, “the decision . . . ‘impose[d] opprobrium’ upon [the Secretary and Deputy Secretary of Interior]” to such a degree that they “engaged private counsel and sought to intervene as appellants and to present arguments in their respective personal capacities.”)

By July 2003, Judge Lamberth concluded that Interior's continuing failure to resolve its networks' vulnerabilities placed Indian trust data and documents at risk of corruption or loss, threatening the class's access to the accounting he'd ordered; so he ordered that Interior's computers be disconnected from the Internet until security was improved.   (This was not the first disconnection order: In December 2001, the judge entered a TRO disconnecting systems housing trust information; two weeks later, the Department agreed to a consent order requiring that those systems stay disconnected until Interior could demonstrate to a special master that trust information was secure.  Interior’s relationship with the special master, which was initially cooperative and led to 95% of its computers being reconnected, broke down in mid-2003 when the special master claimed that Interior was undermining computer security tests.  The plaintiffs then filed the motion that led to the July 2003 injunction disconnecting Interior’s trust-data systems from the internet again.  Judge Lamberth entered a modified injunction in March 2004, which was the operative order at the time the D.C. Circuit decided the appeal.)

The D.C. Circuit vacated the second contempt order and the 2003-2004 Internet disconnection orders, but on primarily technical grounds.  On contempt, the court explained that:  “[T]he district court cites completed conduct of the defendants . . . making the proceeding criminal in nature[,]” and while the department filed reports with the district court that “were misleading about the progress being made,” most of the misrepresentations were made under the previous secretary such that the then-sitting Secretary couldn’t be “held criminally liable for contempt based on the conduct of her predecessor in office.”  On the IT security injunction, the court of appeals emphasized that “the district court’s authority properly extends to security of Interior’s information technology systems . . . because the Secretary, as a fiduciary, is required to maintain and preserve [trust data,]” but that the judge should’ve left the burden of persuasion on the plaintiffs, held an evidentiary hearing and given more weight to Interior’s certifications that its systems were secure.  In short, Judge Lamberth found and the Court of Appeals agreed that Interior made material misrepresentations to the court –in omitting to mention its seriously vulnerable IT infrastructure and by filing overly rosy reports of its progress on trust reforms it had been ordered to complete. 

(In summer 2005, I sat in a 59-day evidentiary hearing on the state of Interior’s IT security.  Judge Lamberth concluded, in over 200 pages of findings, that while things had improved significantly, there was still substantial danger to trust data.  His order disconnecting Interior from the Internet yet again was vacated on appeal, with a D.C. Circuit holding that more directly cabined his equitable power.  I may say more about that in a later post, though I suspect you’ll be tired of the issue after this one.)

Then there were the class notice orders, of which the July 12, 2005 opinion and order—the one that prompted the case's reassignment--was the third.  (The first was a Rule 23(d) order issued in 2002, precluding Interior communications with class members about the litigation without prior court approval. (See 212 F.R.D. 14.))  In September 2004, the plaintiffs presented evidence that Interior was facilitating sales of Indian trust lands despite its failure, to that point, to complete an accurate accounting of trust assets; so Indians, the plaintiffs argued, were making decisions about whether to sell trust assets without any guarantee that Interior’s information the value of those assets was accurate.  Later that month, Judge Lamberth ordered that Interior “include notice to class members regarding [the Cobell] litigation and Interior's duties as Trustee–Delegate” with all communications that might affect beneficiaries’ decisions about trust assets.  (See 225 F.R.D. 41.)  In October, the plaintiffs returned with evidence suggesting that “Interior felt that compliance with the [land sales] Order required Interior to shut down the Bureau of Indian Affairs entirely. Field offices were closed and notices were affixed to their doors explaining that no business could be conducted due to this Court's Order” and “the entire process by which payments are made to IIM account holders . . . was similarly shut down.”  (224 F.R.D. 266, 270.)  Judge Lamberth’s clarifying order made even more explicit what was already obvious—that the land-sales order did not restrain the distribution of trust checks or require offices to shut down.

Was contempt strong medicine?  Absolutely.  Was disconnecting Interior from the Internet aggressive and perhaps stretching the court’s equitable powers?  Sure.  That both happened more than once over several years, however, is illustrative of the pace of Interior’s progress. Did these orders make the case more frustrating for the government?  No doubt.  But there had never been a case quite like this before, and most of these issues, in the context of a massive and massively mismanaged government trusteeship, were matters of first impression. The D.C. Circuit noted more than once that broad district court authority and oversight was warranted by “the magnitude of the government malfeasance and potential prejudice to the plaintiff class,” as well as the “record of agency recalcitrance and resistance to the fulfillment of its legal duties.”  Were the plaintiffs’ attorneys at times overzealous and perhaps somewhat thin-skinned later in the litigation?  Fair enough.  But given the historical experience of the people they represented, is that really so difficult to understand?  And they received plenty of defeats and chastisements of their own from the court of appeals.

As Glenn notes, there were numerous appeals after the first trial, and most went for the government.  But this case—understood in its historical context—was destined for high drama.  It would have been surprising if it had been routine.  The contempt citations wouldn’t have issued had the government not neglected the Indian trust and its recordkeeping duties for a century.  The disconnections wouldn’t have been necessary had the government assigned the Indian trust something other than what appears to have been the lowest possible priority.  The notice orders wouldn’t have been necessary had the government not delayed the Indians' remedy for as long as it did and fought so hard to avoid any bad publicity.  These events are symptoms of the larger problem, which we mustn’t lose in the forest of orders and appeals.  The D.C. Circuit emphasized this even as it reassigned the case:

“In [the appeal from the first trial], we recognized that ‘the federal government has failed time and again to discharge its fiduciary duties,’ resulting in serious injustice that has persisted for over a century and cries out for redress.  . . .  Yet today, five years later, no remedy is in sight . . . and growing hostility between the parties distracts from the serious issues in the case. . . . Our ruling today presents an opportunity for a fresh start.  As the litigation proceeds, the government must remember that although it regularly prevails on appeal, our many decisions in no way change the fact that it remains in breach of its trust responsibilities.  In its capacity as trustee and as representative of all Americans, the government has an obligation to rise above its deplorable record and help fashion an effective remedy.  For their part, counsel for the plaintiff-beneficiaries, as counsel to a large class of Indians and as officers of the court, would more ably advance their worthy cause by focusing their energies on legal issues rather than attacking the government and its lawyers.”

Despite Glenn’s invitation to change my focus to the technical merits of these orders, jurisdictional questions, etc.; those issues are orthogonal to the point I want to make.  And despite the superficial attraction of trying for journalistic balance, I’m not a journalist and there are not two sides to every story.  This story is about who was to blame for the mismanagement of the Indian trust, who was responsible for fixing it, and how the responsible party behaved when that remedy was finally demanded.  The sideshow suggests an unflattering answer to the last question, but it doesn’t change the questions. I leave it to you to draw your own conclusions.  Let me know what you think.

Posted by Garrick Pursley on April 19, 2014 at 01:04 AM in Judicial Process | Permalink | Comments (2)

Saturday, April 12, 2014

Lamberth in Cobell Part 2: Contextualizing Litigation Tactics

As a follow up to my first post on Judge Lamberth and the Cobell case and as a way of responding to questions that Glenn raised in the comments, I want to briefly note some historical antecedents of the lawsuit to situate the parties' litigation strategy in a broader context.  I’ll take up the DC Circuit’s decision to reassign the case, and the ultimate result of the Indian trust litigation, in additional posts.

The General Allotment Act of 1887 (the Dawes Act) was in no uncertain terms designed to destroy the tribes and assimilate Indians into anglo-American social and economic systems.  Senator Henry Dawes said that the Indians "have got as far as they can go, because they hold their land in common. . . .  There is no selfishness, which is at the bottom of civilization."*  The Dawes Act would therefore impose individual land ownership on Native Americans in 80- or 160-acre allotments carved out of tribal lands.  The government ended up taking some 90 million acres--65% of tribal lands--for sale to non-Indian settlers and entities (railroads, ranchers, etc.).  The plan was to force massive cultural change--having to tend their allotments would instill in the Indians proper anglo-American values.  Or so went the thinking.  In 1881, President Chester Arthur boasted that allotment "would have a direct and powerful influence in dissolving the tribal bond, which is so prominent a feature of savage life, and which tends so strongly to perpetuate it."  In 1901, Teddy Roosevelt characterized the allotment system as "a mighty pulverizing engine to break up the tribal mass."

Arthur and Roosevelt were right about allotment breaking the tribes, but, of course, dead wrong about the benefits of that process.  Private land ownership was a foreign concept and allotees soon faced tax foreclosure, reversion or bargain-basement sales of their land or its resources.  The proceeds went into the government-managed trust accounts.  And, as the D.C. Circuit noted, for decades before Cobell was even filed "report after report excoriated the government's management of the [Indian] trust funds."  Pre-lawsuit reports from Congress, the GAO, and others all reported basically the same thing--"significant, habitual problems in [the Bureau of Indian Affairs'] ability to fully and accurately account for trust fund moneys, to properly discharge its fiduciary responsibilities, and to prudently manage the trust funds."  The Interior Department itself, in a 2007 report to Congress on the progress of trust reform in the wake of Cobell, called the Indian trust "one of the most notoriously intractable management problems in the federal government." 

The Department admitted most of this mismanagement before the first trial in Cobell, conceding that it "does not adequately control the receipts and disbursements of all [trust] account holders," that it "does not provide all account holders with periodic statements of their account performance," that it "does not provide adequate staffing, supervision, and training for all aspects of trust fund management and accounting," and, in the words of then-Interior Secretary Bruce Babbitt, that "the fiduciary obligation of the United States government is not being fulfilled."  Paul Homan, Clinton-appointed Special Trustee for the Indian trust, testified that "[t]he record-keeping system [for the Indian trust] is the worst that I have seen in my entire life."

Unsurprisingly given their treatment by the government, of which the trust debacle is illustrative, Native Americans' economic circumstances generally are appalling:  Data the 2012 census show that their median household income was $35,310 (compared to the overall national median of $51,371), 29.1% were living in poverty (more than any other racial group, and at a rate significantly higher than the 15.9% national rate), and 27.4 percent lacked health insurance (compared to 14.8 percent nationally).

It is against this background that we should consider the government's approach to defending the Cobell lawsuit.  The system was broken.  Everyone knew it.  Even the Interior Department admitted it.  But the litigation process was notoriously long and convoluted--14 years and nearly 4000 docket entries by the end.  Given the enormous scope and variety of the proceedings, I will only describe a few exemplary bits that are suggestive of the government's general strategy. I do not intend to refute Glenn's suggestion that there were reasons for the government to be frustrated; my point is that there were plenty of reasons for everyone involved--including the plaintiffs and the judge--to be frustrated.  

One could characterize the government's litigation strategy charitably as thoughtful, exhaustive and deliberate, or uncharitably as dilatory and obstructionist.  Beginning with its initial motion to dismiss and continuing through the first Cobell trial (which was held in June 1999 and established the government's trust management failings), the government pursued legal theories that would have completely cut off the Indians' private rights of action for trust violations.  They argued that despite all the problems with its management of the trust, the Interior Department's internal trust reform efforts were proceeding "in a reasonable fashion, [at] a reasonable speed," and that the plaintiffs had no judicial remedy because of sovereign immunity and because Interior had unreviewable discretion to make trust management decisions.  After the trial, Judge Lamberth ordered an accounting and the government advanced its sovereign immunity and agency discretion arguments on appeal.  The D.C. Circuit rejected them and held that "[t]he federal government has substantial trust responsibilities toward Native Americans," and that it was "equally clear [that it] . . . has failed time and again to discharge its fiduciary duties."

With hundreds of thousands of benficiaries and such a long-lived trust, one might have expected the accounting and reform of the system- the obvious remedy--to be a large, time-intensive project.  But this wasn't that.  It took 14 years for the plaintiffs to overcome the government's insistence that the Indians had no remedy at all. 

Now, it may be that the government appealed the trial result (and continued to litigate for a decade more) out of a desire to protect the agency's trust management prerogatives from constraint by court order, but of course that would be a more plausible and acceptable reason had the agency's internal trust reform efforts not been repeatedly deemed massively deficient in the years before the lawsuit and thoroughly proved to be so at trial.  Perhaps a vigorous defense is desirable in its own right regardless of the circumstances--certainly every defendant has the right to contest liability and we've long accepted that adversarial presentation is a valuable tool for working out the truth in factually complex cases (Cobell certainly had complex facts).  But there is something about the government's attempts to cut off the class members' access to any judicial remedy, in the light of its universally recognized failings as trustee, that stands in tension with the idea, reflected in the Supreme Court's pronouncement in Seminole Nation v. United States, that the government "has charged itself with moral obligations of the highest responsibility and trust" in "dealing with the Indians [and] should therefore be judged by the most exacting fiduciary standards."

We can see already some of the reasons why Judge Lamberth might have emphasized the government's tendency to "litigate and relitigate, in excruciating fashion, every minor, technical legal issue" in the opinion that resulted in the case being reassigned.  I leave it to you to assess whether Judge Lamberth's obvious frustration was justified and I'm interested in your thoughts.  Stay tuned--the next post will detail some of the case's headline-grabbing collateral proceedings, including the contempt citations and Judge Lamberth's orders disconnecting the Interior Department from the Internet.  These incidents, too, add important context for thinking about the tone of the judge's most controversial opinion in Cobell.

*Address at the Third Lake Mohonk Indian Conference, 1885, as quoted in Armen MerjianAn Unbroken Chain of Injustice: The Dawes Act, Native American Trusts, and Cobell v. Salazar, 46 Gonz. L. Rev. 609, 615 (2011).  Much of what I am about to say is chronicled in greater detail, and with fuller citations, in the Merjian article (and I'm sure other articles on the Cobell case).

Posted by Garrick Pursley on April 12, 2014 at 09:27 AM in Judicial Process | Permalink | Comments (3)

Tuesday, April 08, 2014

A Remarkable Opinion in a Landmark Case

I want to tell some of the story of a case over a couple posts and I can't do justice to the whole thing in this format, so I'll focus on an episode involving what federal district Judge Royce Lamberth (a Reagan appointee) said in the course of granting a procedural motion in one of the largest class actions in American history.  The next post will be about what happened to the judge and the case after he said it. 

The 1887 Dawes Act, one of the government's attempts to solve "the Indian problem," placed Native American lands into a government-managed trust, allotted small parcels to Native families, and took the rest -- millions of acres -- as "surplus" disposable for profit.  Allotted trust lands were supposed to be managed for the benefit of their Native beneficiaries, but over 120 years the federal trusteeship was plagued by mismanagement.  In 1996, Eloise Cobell and others filed a lawsuit against the Departments of Interior and Treasury, on behalf of what the plaintiffs estimated was a class of 500,000 beneficiaries, for an accounting of trust assets.  The case dragged on for 9 years and already included a number of memorable events (including contempt citations issued to the Secretary of the Interior), before Judge Lamberth issued his opinion granting the plaintiffs' motion for permission to send notice to the class that government-issued trust information might be unreliable.  The plaintiffs pointed to evidence that the Interior and Treasury Departments hadn't kept adequate trust records or adequately protected physical and electronic trust documents against corruption.

A couple illustrative passages from the opinion, after the jump:

Judge Lamberth begins on a grim note:

"For those harboring hope that the stories of murder, dispossession, forced marches, assimilationist policy programs, and other incidents of cultural genocide against the Indians are merely the echoes of a horrible, bigoted government past that has been sanitized by the good deeds of more recent history, this case serves as an appalling reminder of the evils that result when large numbers of the politically powerless are placed at the mercy of institutions engendered and controlled by a politically powerful few. . . . [T]he entire record in this case tells the dreary story of Interior's degenerate tenure as Trustee-Delegate for the Indian trust, a story shot through with bureaucratic blunders, flubs, goofs and foul-ups, and peppered with scandals, deception, dirty tricks, and outright villainy, the end of which is nowhere in sight."

And, near the end, he speculates about causes:

"Perhaps Interior's past and present leaders have been evil people, deriving their pleasure from inflicting harm on society's most vulnerable.  Interior may be consistently populated with apathetic people who just cannot muster the necessary energy or emotion to avoid complicity in the Department's grossly negligent administration of the Indian trust.  Or maybe Interior's officials are cowardly people who dodge their responsibilities out of a childish fear of the magnitude of the efforts involved in reforming a degenerate system. . . . Perhaps the Indians were doomed the moment the first European set foot on American soil.  Who can say?"

Cobell v. Norton, 229 F.R.D. 5 (2005).

The judge had expressed similar sentiments somewhat more pithily in earlier opinions and orders.  This article collects excerpts. 

This opinion, though, set off a real firestorm.  The Justice Department would eventually petition the D.C. Circuit to have the case reassigned to a different district judge, arguing that Judge Lamberth had compromised his appearance of objectivity. (I'll say more about the appellate proceeding in the next post.)  For now, I wonder what we should make of an opinion like this?  Assuming that the statements about mismanagement and so forth had a basis in the trial record and that the decision to permit class notice was legally justified, are there circumstances in which language like this adds something of value to the adjudicatory process?  For example, might one of law's expressive functions be to prevent the broader significance of complex cases from getting lost in minutia?  Or is this just asking for trouble?

(Full disclosure: I clerked for Judge Lamberth during the term in which the first part of this episode occurred.  The judge does his own work and makes his own decisions -- he's famous for it.  So I want to simultaneously make clear that I'm not trying to indirectly claim credit for this or distance myself from it.  We're all scholars of adjudication in one sense or another and I've long thought that this merits attention on its own terms.)

Posted by Garrick Pursley on April 8, 2014 at 12:25 PM in Judicial Process | Permalink | Comments (7) | TrackBack

Thursday, February 13, 2014

Judgment Calls and Reputation, Part Two: Trial Judges

My post last week explained how figure skating judges can be influenced by the reputations of the skaters before them.  Trial judges are often just as aware of the reputations of those before them in the courtroom.  Indeed, as Judge Marvin Aspen once told a group of litigators, “just like you [lawyers] tell war stories about [a] judge, we judges do the same thing.  When a lawyer is involved in outrageous or unprofessional conduct before me, when I’m sitting around having lunch with my colleagues, we talk about it.”

So should we be concerned that the reputation of attorneys influences judicial decision making?  Maybe. 

Imagine that Attorney X has the reputation in the judicial lunchroom as an amiable and competent lawyer.  Could that reputation alone help him in future cases?  Certainly no judge worth her salt would openly decide a substantive matter based on her beliefs that the attorney was a nice guy, or even a skilled practitioner.  But those impressions can still influence the judge’s general thinking.  A judge may give a small, unconscious nod to the legal position of an attorney who is believed to be hard-working, well-prepared and likeable.  Moreover, an attorney’s good reputation may influence a judge's perception of his client: at least one study (again, unfortunately, behind a subscription wall) found that initial impressions of people are colored by impressions of those with whom they are associated, suggesting that a judge may view a litigant with a likeable attorney in slightly better terms than one without. 

So a good reputation for an attorney can’t hurt, and might help.  But reputational success also presents an interesting twist: an attorney with a sterling reputation might actually want to avoid extended interaction with the judge, because even one slip-up could tarnish his image.  Judgments about other people’s agreeableness and emotional stability in particular are said to have high maintenance rates – meaning that even one negative encounter can sully an otherwise positive impression.  The likeable attorney who is in a bad mood in court one day will no longer be seen as so likeable, both by the judge before whom he appears and by anyone else whom the judge talks to about the incident. 

Unfortunately for lawyers with bad reputations, changing one's reputation in the other direction doesn't come as easily.  A lawyer who is seen as an incompetent jerk will need to prove his likeability and competence over and over again before his reputation is positively affected.  In the meantime, his existing reputation at least slightly increases the risk that judges will view him and his clients unfavorably.

There are lessons in this general psychology for all users of the court system.  For lawyers – especially new lawyers – the old maxim that first impressions matter has more than a kernel of truth.  A lawyer who comes across from the outset as earnest, prepared, and respectful will have an easier time interacting with the court in future cases.  For clients, a lawyer’s ethical and professional reputation can also matter to the outcome, at least on the margins.  And for judges, who already spend considerable time trying to separate their personal impressions of witnesses, civil litigants, and criminal defendants from the factual testimony they present, yet another conscious effort at separation is needed – this time dividing the substantive merits of an issue from the personal characteristics of the presenting attorneys.

Posted by Jordan Singer on February 13, 2014 at 03:43 PM in Judicial Process | Permalink | Comments (0) | TrackBack

Tuesday, February 04, 2014

Judgment Calls and Reputation, Part One: Figure Skating

Thanks to Dan and the Prawfs gang for letting me hang out here again for February.  Over the course of the month, I hope to explore how impressions of others influence judgments in a variety of litigation settings.  With the Winter Olympics approaching, however, it seems appropriate to start outside the courtroom with a different group of high-profile decision-makers: figure skating judges.

Assessing a skater’s performance is a highly challenging cognitive activity.  The judge must evaluate both the skater’s technical proficiency and artistic contribution in real time, and convert those assessments into a quantifiable score just minutes after the performance has ended.   There is no video replay, no time for careful review and consideration of what was observed.  Skating judges must act quickly and decisively.  It seems natural that skating judges would therefore rely on mental shortcuts and other strategies to reduce their cognitive load.   And indeed, one study out of the University of Ottawa found that one common and influential mental shortcut for judges was the skater’s reputation. 

The Ottawa study (unfortunately, available by subscription only) concluded that when judges believed that a skater had made a positive name for him- or herself within the regional skating community, the skater received significantly higher scores than when the skater was unknown to the judges.  The study concluded that a skater’s positive reputation set certain expectations for the judges about the skater’s ability, which in turn led to a more positive assessment of the skater’s performance.

Now, it is likely (though not guaranteed) that skaters with positive reputations were indeed excellent at their craft.  But even if a skater’s reputation perfectly captured her average past performance, it cannot reliably capture the intricacies of any future performance.  So although the judges’ reliance on reputation (consciously or not) was entirely natural, we might look to ways to reduce or eliminate the bias in the interest of obtaining the most accurate assessment possible. 

One solution, proposed by the Ottawa researchers, is to ensure that judges in any given competition are unfamiliar with the individual skaters – thereby forcing them to assess the skaters on the current performance alone.   This proposal might work if there was a large enough pool of qualified judges to assure that judges were always unfamiliar with the skaters before them.  Still, as a long-term way of promoting better accuracy, “blind” figure skating judging seems unworkable.  Sooner rather than later, the system would exhaust the number of qualified judges, or judges would share with each other what they had seen in earlier competitions.  In either event, judges would eventually come into competitions with some reasonably well-defined expectation of each skater’s skill and artistic ability.

Figure skating provides a fairly straightforward introduction to the problem; the cognitive challenges that impressions and reputation pose to accurate judgments are compounded in the litigation setting.  Whereas the effects of impressions in figure skating judging are essentially felt one way—even if the skaters know something about a particular judge’s reputation, there is not much they can do about it on the day of competition—the effects of impressions in litigation are multidirectional.  Lawyers, judges, and parties must regularly make decisions based on their ongoing interactions and evolving perceptions of each of the other players.  Other ways of promoting accurate judgments are needed and, as I will suggest in the next series of posts, the best approach may be the opposite of blind judging; that is, extensive, repeated interaction between the key players.

Posted by Jordan Singer on February 4, 2014 at 11:03 AM in Culture, Judicial Process | Permalink | Comments (0) | TrackBack

Tuesday, July 09, 2013

The Poor are Still Losing: Gideon's Empty Promise

This past weekend I spent some time thinking about the future of indigent public defense and what role, if any, defense lawyers can play in a system beset by racism and classism.  First, I read a provocative essay by Paul Butler, "Poor People Lose: Gideon and the Critique of Rights," in the Yale Law Journal's most recent issue, which contains over twenty articles (all available for free download) by law professors and lawyers reflecting on the 50th anniversary of Gideon v. Wainwright.  

Professor Butler makes a strong case for the idea that the focus on rights discourse -- the right to counsel at trial, the right to counsel during plea negotiations, the right to Miranda, the right to a jury trial -- ultimately has little impact on a criminal justice [or juvenile justice] system in which poor people nearly always lose.  Why do they lose?  Because, as Butler explains, protecting defendants' rights is much different than protecting defendants:  "What poor people, and black people, need from criminal justice is to be stopped less, arrested less, prosecuted less, incarcerated less."  Providing a lawyer -- especially one who is underpaid, overworked, and under-resourced -- does little to change this calculus.  As Butler reminds us, the reason that being poor and African American substantially increases the risk of incarceration has more to do with class and race than with the quality -- or lack thereof -- of the indigent defense system.  

So, what do we do about it?  That, Butler acknowledges, is the hard part.  We certainly don't discourage law students from becoming public defenders, because on an individual level, they do help clients [more on this below].  But what is the alternative?  Michelle Alexander has urged defendants to take their cases to trial, putting a stop to the vicious plea mill that has subsumed the adversarial process, and to "crash the justice system."  Butler has called for "racially based" jury nullification for nonviolent, victimless crimes as well as decriminalizing or legalizing drugs.  I'm not convinced that these specific strategies in and of themselves will catalyze a social reform movement large enough to alter the system, but it's clear that nothing should be discounted, for the situation is dire.  

With all of this percolating in my mind, I happened to watch the new HBO documentary, "Gideon's Army," which follows three public defenders working in under-resourced counties in Georgia and Mississippi.  The film was engrossing and offered (what seemed to me, at least) a realistic portrayal of the challenging and gruelling nature of indigent defense.  The three young PDs -- two women and one man, all African-American -- were dedicated and driven, although one understandably walks away from the job when she can't pay her bills to support herself and her son.  The film concludes (perhaps for marketing purposes) with a happy ending -- an acquittal after a jury trial, which made me -- a total sap -- cry as the PD was hugged by her (young black male) client and his (low-income) single mother.  

But as the credits rolled, I didn't feel much like recruiting baby PDs for this "army" or donating to the organization that inspired the documentary -- the Southern Public Defender Training Center (SPDTC) (now called "Gideon's Promise"), led by the dynamic (white male) Jon Rapping.  Instead, I wanted to crash the system.  The film's explicit message is that there's a "battle" going on in which dedicated and hard-working PDs can win if only enough of them sign up, endure slave wages, and get down with representing one poor person of color (and the occasional white poor person) after another, as our prisons only continue to expand.

The director, Dawn Porter, draws clumsy parallels to the civil rights movement (and even offers a cameo by John Lewis who appears at a fund-raising event for SPDTC), but there's no acknowledgement that the lawyers who represented civil rights workers in the south had clear goals and objectives, while these PDs are fighting for...what exactly?  By acting as cogs in a broken machine, one that even Rapping admits is "hell,"  they are not bringing about systemic change.  Yes, they may make a difference to an individual defendant, but there is no talk of broader-based action -- such as a demand for a living wage, reasonable caseloads, or enough funding to perform basic investigative tasks and forensic testing.  Let's be real -- how could there be this sort of activism?  These lawyers are barely hanging on, working 15-16 hours/day and scrambling for change to buy enough gas to get them to the courthouse.    

Don't get me wrong -- I was a proud public defender for ten years, and as a clinical professor, I still represent the same client population; I am heartened whenever one of my students enters this field.  But I would never suggest that the work of the average PD, like the ones featured in the film and in most offices across the country, actually transforms the populations they serve or that the appointment of a lawyer -- the RIGHT to a lawyer -- helps dismantle the incarceral state.  

I would also be reluctant to recruit young lawyers for this work using the pitch championed in the film, because as romantic as it sounds, it will inevitably attract people for all the wrong reasons, such as one of the women who balks when a client feels no remorse for his heinous crime.  She thought she was on the "right" side of the war, only to find that the lines are not so easily drawn.  As Travis Williams, my favorite PD in the film said, "I don't see how you can do this job for any period of time and not love it.  Either this is your cause or this ain't."  He's the guy who has tattooed the names of his clients who have been convicted after trial on HIS OWN back.  He will be a career PD, and his clients will be truly blessed to have him on their side.  He also recognizes, however, that the work is thankless, that the conditions are unlikely ever to change, and that it's more of a marathon than a war.  A marathon with no end in sight.    

Your thoughts?  Please share in the comments.   


Posted by Tamar Birckhead on July 9, 2013 at 07:52 AM in Criminal Law, Current Affairs, Film, Judicial Process, Law Review Review | Permalink | Comments (11) | TrackBack

Wednesday, June 26, 2013

Federalism and DOMA

I've already seen some confusion about whether it's fair to describe Justice Kennedy's opinion in Windsor as relying on "federalism." Compare, for example, the majority opinion ("it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism") with the Chief Justice's dissent ("I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.") with Scalia's ("Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of the 'usual tradition of recognizing and accepting state definitions of marriage' continue.  What to make of this?").

It seems to me that the answer is: Windsor is an equal protection decision to which federalism is relevant, both because it shores up the interest on Windsor's side and it diminishes or eliminates many of the interests on the federal government's side.  In this way, Kennedy's opinion is in keeping with Judge Boudin's opinion for the First Circuit in Gill, which did something similar, and is like the arguments I discuss at the beginning of my DOMA article.

The confusion arises from some terminological confusion that began at oral argument.  One "federalism" argument was the one that Kennedy and Boudin subscribe to-- that federalism influences the strength of the equal protection claim.  But there was also a very different federalism argument made in an amicus brief for Ernie Young and other federalism scholars-- that DOMA is unconstitutional as a matter of enumerated powers and state sovereignty, independent of the discrimination issue.  That question, Justice Kennedy declines to speak to. ("It is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.").

One other thing while I'm at it.  Today's scenario -- DOMA unconstitutional, state laws intact for now -- means that same-sex couples and the federal government now have to confront a series of complicated and difficult choice of law questions (as Justice Scalia points out in dissent, and as I wrote about last year).  The immediate consequences will depend a lot on what the executive branch does (and especially whether it tries to coordinate its agencies' different positions on choice of marriage law) and how the courts react.  As Justice Kennedy said in explaining why the Court needed to decide this case:

The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. ... Rights and privileges of hundreds of thousands of persons would be adversely affected ...; the cost in judicial resources and expense of litigation for all persons adversely affected would be immense. ... the costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved.

The same could be said about the undecided choice of law issues. That said, it's still not too late for Congress to repeal DOMA and replace it with a choice of law rule. And perhaps the administration has a plan for how to deal with the fallout.  Otherwise, it's about to become a lot more interesting to be a choice of law scholar.

Posted by Will Baude on June 26, 2013 at 01:45 PM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (4) | TrackBack

Monday, June 24, 2013

So Where WAS Fisher Anyway?

Two weeks ago I posted some hypotheses about why it was taking the Supreme Court such an unusually long time to publish the opinion in Fisher v. Texas, its last October case.  Now that the opinion is out, we have some good reason to think that all of my hypotheses -- at least when I got down to specifics -- were wrong.

1:  I suggested a "very long" majority and a "very long" lead dissent.  Well, Justice Kennedy's majority opinion is 13 pages; the dissent is 4.  So much for that theory.

2: I suggested that there had been some kind of major "flip" in the case -- in particular that "Justice Kennedy initially decided to invalidate Texas's program but has now decided to uphold it (I doubt it), or that Justice Kennedy had initially decided to preserve Grutter but has now decided to overrule it."  But no, the final opinion invalidates Texas's program the Fifth Circuit's opinion on the narrow, Grutter-based grounds I had expected all along. [EDIT: Thanks for the correction, Micah!]

3:  I suggested that another justice might have written a long concurring opinion getting into a nasty back-and-forth with the lead dissent.  But Justice Ginsburg's lone dissent is only four pages long, and it did not provoke substantial writing from anybody.

4:  Finally, I suggested that Justice Thomas might write a long concurring opinion getting into the original meaning of the 14th Amendment and finally providing a judicial explanation for how the colorblindness rule that Scalia and Thomas subscribe to (and sometimes derive from Brown) can be squared with the original history of the 14th Amendment. 

This one came the closest -- Justice Thomas did write a long concurring opinion -- but it's not nearly long enough to explain the unusual delay, and even more puzzlingly, it doesn't discuss originalism in any serious detail.  There's a brief mention of slavery, and otherwise all of the originalist heavy lifting is delegated to a page-long discussion of the Iowa Supreme Court's previously obscure 1866 decision in Clark v. Board of Directors.  (The case is cited in the briefs and Brown and Sweatt, which is probably how it made its way into the concurrence, although it is also cited in Michael McConnell's Originalism and the Desegregation Decisions and Chris Green's Originalism and the Sense-Reference Distinction, either of which I could imagine Justice Thomas's reading.)

So what did happen?  Obviously my own reliability at guessing is subject to serious question.  But my new guess is that there was a long struggle to get five Justices to join a single opinion.  From Justice Scalia's and Thomas's concurrences, I wouldn't be surprised if they initially refused to join an opinion that seemed to reaffirm Grutter.  At the same time, I wouldn't be surprised if Justices Breyer and Sotomayor initially refused to join an opinion that seemed to narrow Grutter. 

Justice Kennedy could have simply written an opinion for 3 and relied on the Marks Rule to make it the controlling precedent for lower courts, but there's something unsatisfying about that, especially in a high-profile case.  So maybe he had to spend a while trying to get two more votes from either his right flank or left flank (and ultimately got more than he needed by writing a short and relatively unobjectionable opinion).  There's plenty about this theory that I haven't fully fleshed out, but that's my new best guess, since I doubt it took eight months for Justice Thomas to write 20 pages.  But obviously you shouldn't take my word for it!

Posted by Will Baude on June 24, 2013 at 03:26 PM in Constitutional thoughts, Judicial Process, Life of Law Schools | Permalink | Comments (10) | TrackBack

Saturday, June 22, 2013

Dismissing the DOMA Case

Apparently "the rumor sweeping DC this past week" is that the Supreme Court will decide that it lacks jurisdiction in the DOMA case, and thus will dismiss the case without ruling on DOMA's constitutionality. Adam Winkler discusses the scenario in the New Republic (and seems to think that the consequences of doing so would be quite bad).  A friend asked me what I thought of the rumor.  Well: 

First, dismissing the case for lack of jurisdiction would be the right thing to do.  Invocations of the Supreme Court's jurisdiction, like any federal court's, require the invoking parties to have a real problem that they want the court to do something about.  But neither Windsor nor the United States has such a problem here.  Both of them got the result in the district court and in the Second Circuit that they wanted, and we can tell that because they're asking the Supreme Court to affirm.  An appeal where both parties want the Court to affirm is an appeal where there's no standing.  (Note for SCOTUS nerds-- this is different from the rare but consistent occasions where both parties want the Court to reverse and the Court appoints an amicus; those cases have prudential adverseness problems, but they don't have standing problems.) 

And as for BLAG's participation, 28 U.S.C. 516 limits the  "the conduct of litigation in which the United States" is a party to "officers of the Department of Justice," "except as otherwise authorized by law."  No law delegates that authority in this case to BLAG. 

In my view the only thing making this difficult is the Supreme Court's (apparent) earlier conclusion that it had jurisdiction in INS v. Chadha, but that case's reasoning isn't well explained and may not be correct or applicable.  (The always insightful Marty Lederman has responses to some of these concerns here, though he takes a much more doctrinal and less conceptual approach to the question; I don't actually mean for this post to substitute for the extensive briefing on the question.)

Second, with all that said, I still think it's highly unlikely that the Court will dismiss the case.  Of course oral arguments don't always predict case outcomes, but during the arguments over jurisdiction in the DOMA case the Court seemed very sympathetic to BLAG's position that there was standing.  (E.g., Paul Clement: "And if you want to see the problems with their position, look at Joint Appendix page 437. You will see the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case. I mean, that's what you get under their view of the world, and that doesn't serve as separation of powers." Justice Kennedy: "That -- that would give you intellectual whiplash. I'm going to have to think about that.").  And it would be easy to write an opinion that finds jurisdiction with very little discussion, citing Chadha and moving on.  Dealing with the question without much explanation might irritate some professors of federal jurisdiction, but the Court doesn't always care what they think.

Third, if the Court does dismiss DOMA for lack of jurisdiction-- as it should-- the consequences would hardly be disastrous.  The result is simply that the parties can't appeal if neither of them wants the appellate court to do anything.  As soon as any court actually upholds DOMA, there will be appellate jurisdiction.  (One recent district court decision in the Ninth Circuit has arguably upheld DOMA.)

Winkler mentions this:

There is one possible route back to the Supreme Court. If someone challenges DOMA and loses, he or she would have the right to appeal. It’s hard to see that happening, however, given that the administration refuses to defend the law. Every challenger should win.

But it's worth emphasizing what this really means. If any court upholds DOMA, there will be jurisdiction in the Supreme Court. And if not-- if every single court to consider DOMA's constitutionality strikes it down-- the Supreme Court's intervention won't be needed, because DOMA will be invalid everywhere its constitutionality is raised. At that point, even the Obama administration would probably stop enforcing it.

Posted by Will Baude on June 22, 2013 at 11:32 AM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (10) | TrackBack

Wednesday, June 19, 2013

Can We Justify How Criminal Justice Authority is Allocated Across Jurisdictions?

Blogging, young kids, and flu season: apparently only two of the three can co-exist at one time, at least in my house. Anyway, in my last post, I asserted that the decentralized nature of our criminal justice system has played a major role in driving up prison populations. In this post, before looking at the problems with decentralization, I wanted to think about whether we can justify such a system, and ask whether the problematic decentralization seen in criminal law is prevalent elsewhere as well.

As an economist, the strongest justification I can see for federalism1 relates to externalities. At least as a starting point, issues should be dealt with by the smallest jurisdiction that completely contains the problem. Obviously, there are clear counterarguments—economies of scale, coordination problems, etc., etc.—against having too many levels of government. But since here I’m basically looking at city, county, and state governments, it seems like a reasonable place to start.

The division of labor we see is basically this: local communities such as cities are responsible for enforcement, counties are in charge of bringing cases and incarcerating misdemeanants, and the state is responsible for incarcerating felons and, via the state criminal code, defining the basic substantive and punitive rules.

Yet what is striking is how remarkably local and concentrated crime is.

Nearly half of all crime in the United States takes place in just 75 counties (see the codebook here)—or just over 2% of the 3,143 counties in the country. Within these counties, crime is concentrated in the urban areas. And within these urban areas, crime is heavily concentrated at the block-by-block level. One study of Seattle, for example, revealed that over a fourteen year period, over 50% of all crime took place in just 4% to 5% of city blocks each year, and 100% of crime each year took place in just about half of all city blocks; over 22% of all city blocks never experienced a crime during the whole sample period. Similar results have been found in other cities as well.

Screen Shot 2013-06-19 at 11.02.22 AM

Yet even the idea of “good” and “bad” neighborhoods understates the concentration of crime. As David Weisburd explains elsewhere:

In what are generally seen as good parts of town there are often streets with strong crime concentrations, and in what are often defined as bad neighborhoods, many places are relatively free of crime.

In fact, so concentrated is crime that Lawrence Sherman has argued that we should think more about “wheredunit” than “whodunit”: tell me that a mugging happened, and I am better able to guess where it happened than who did it.

Furthermore, not only is crime quite local, it seems to be fairly immobile: evidence suggests that for most crimes displacement is not a major concern. Weisburd and others have shown that even within a high-crime neighborhood, concentrated enforcement at a particular crime hot-spot does not appear to displace crime to other, nearby blocks. The hotspot is a hotspot for a reason: there is something about that block—its architecture, its lack of light, etc., etc.—that makes if favorable for, or even encourages, criminal conduct.

Of course, some crimes are more displaceable than others. The low-level drug dealer may not move a few neighborhoods over to sell more drugs, but cartels will reroute their distribution networks through entire new countries if need be. (This perhaps suggests why we see many regional drug enforcement task forces.) And the fact that a majority of violent crime victims know their attackers suggest that much violent crime is localized, while something like terrorism is perhaps much more likely to respond to changing enforcement patterns.2

But, in general, crime is a fairly local, stable (if destabilizing) problem.

Given this, it is hard to immediately justify the way in which we have allocated responsibility for criminal justice issues. Why should county officials decide which offenses deserve prosecutorial attention? Why should state officials decide what crimes deserve longer punishments—and should we even want such one-size-fits-all sanctions? Should crimes in Utica face the same sanctions as those in New York City? (Or is this a defense of plea bargaining, which allows local officials to craft local sanctions from state-level starting points?)

Even California, the one state to seriously rethink this allocation of powers via its Realignment program, does not seem to address these questions well. Realignment will require counties to incarcerate “triple-nons”—non-violent, non-serious, non-sex-offense-registered offenders—in county jails, even for long terms. But what exactly is the relationship between severity and externalities? I can see traces of complicated arguments that could provide some support, but nothing like a slam-dunk.3

There may be some normative arguments for our current system, but these do not feel all that appealing either. Maybe we think it would be offensive if Utica set a much lower punishment for, say, domestic abuse than New York City. But we let the various states set different punishments for such crime, so what is the difference between Utica/NYC and New York/New Jersey?

And it is hard to see a real efficiency argument, either. Perhaps criminal codes are expensive and difficult to write. But then why not have the state write the code and allow local communities to adopt and amend as they see fit, at least for those offenses that seem least displaceable?

But this is an issue that I have not given as much thought to as others, so I would love to hear about justifications that I’m missing. And I’m curious: how big a problem is misdesigned federalism (again, at the local-state level) in other areas of law? Is this a big concern in, say, environmental law (where the externalities seem more obvious and pervasive to me) or labor law? I’d love to hear from people who study other areas of law about whether similar concerns arise there, or if criminal law has a uniquely poorly allocated division of responsibility.


1I’ll use “federalism” here because it is easy. Given the central role of states in criminal justice policy, “statism” is probably more accurate, but more confusing as well. So the “federal” divides I’m looking at here are city/county and county/state far more than state/federal.

2For a cynical take on this, see Robert Wright’s 2002 column about the need for the US to keep its allies close in the wake of the September 11, 2001 attacks: the less our allies are associated with us, the more likely terrorist retaliations will be concentrated on US targets. His title says it all: “Friends as Flak Jackets.”

3And there could be a serious problem here. As David Ball’s work has shown, Californian counties differ greatly in their innate “punitiveness” towards all offenders, violent and otherwise. And as I’ve shown here, the incarceration of violent offenders has been the majority cause of prison growth. So Realignment appears to fail to realign costs and benefits for the very offender class most responsible for rising incarceration rates.

Posted by John Pfaff on June 19, 2013 at 03:24 PM in Criminal Law, Judicial Process, Law and Politics | Permalink | Comments (1) | TrackBack

Monday, June 17, 2013

Today's Decisions

I've noted a few of these points already on Twitter, but here are some items of minor interest to me in this morning's decisions from the Supreme Court.  (For more thorough coverage, go to SCOTUSBlog; for my own more thorough thoughts, come visit here later.)


  • Justice Thomas writes an opinion joined by the four "liberal" Justices.  I can't think of a time this has happened since Atlantic Sounding v. Townsend and United States v. Bajakajian, and both of those were before Justices Sotomayor and Kagan joined the Court.  If that's right, I'm pretty sure this is the first time Justice Thomas has assigned a majority opinion as the senior-most Justice.  [UPDATE:  As a commenter points out, not actually the first time for a CT assignment, or even for this lineup.  But still unusual.]
  • It's interesting that Justice Alito launches a full-on criticism of Apprendi in his dissent (including a citation to the brilliant Jonathan Mitchell, former GMU law professor and current SG of Texas); but it's also interesting that none of the other dissenters (including the Chief and Justice Kennedy) join in.
  • Not for the first time, I despair of the Court having a coherent theory of stare decisis.  Not that there aren't coherent theories, just that the Court doesn't have them.


  • Justice Thomas's reiterated suggestion that Griffin v. California should be overruled reminds me of why I like Justice Thomas so much.

Inter Tribal Council of Arizona:

  • Admin law scholars or ambitious students looking for a nice essay topic, see footnote 10: "The [Commission] currently lacks a quorum—indeed, the Commission has not a single active Commissioner. If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to 'compel agency action unlawfully withheld or unreasonably delayed.' 5 U. S. C. §706(1). It is a nice point, which we need not resolve here, whether a court can compel agency action that the agency itself, for lack of the statutorily required quorum, is incapable of taking."
  • Justice Thomas's willingness to break the don't-cite-Bush-v.-Gore taboo is another reason I like Justice Thomas so much.


  • That's a lot of citations to legal scholarship in the majority opinion.  (I counted 18, but I was counting quickly, and there were a lot of repeat citations to Areeda and Hovenkamp.)


  • I was skimming the opinion without noticing who was the author until I got to page 26: "The amount of damages sought in the complaint is based on the number of persons,over 30,000 individuals, whose personal and highly sensitive information was disclosed and who were solicited. Whether the civil damages provision in §2724, after a careful and proper interpretation, would permit an award in this amount, and if so whether principles of due process and other doctrines that protect against excessive awards would come into play, is not an issue argued or presented in this case."  Must be Justice Kennedy! I thought.
  • The fearsome foursome of Scalia, Ginsburg, Kagan, and Sotomayor are once again in dissent.

Posted by Will Baude on June 17, 2013 at 02:38 PM in Constitutional thoughts, Judicial Process, Law and Politics | Permalink | Comments (6) | TrackBack

Tuesday, June 11, 2013

Obeying Judges

Acquiescence is in the news.  The Obama administration has announced that it will make Plan B available in a single pill, over the counter, for women of all ages, assuming that will comply with a district court's prior ruling.  Meanwhile an Illinois has prosecutor has announced that he will start allowing Illinoisians to carry concealed weapons, even though the legislature has not yet repealed Illinois's public gun ban.  A Seventh Circuit decision had held the law unconstitutional, but the Illinois courts have so far disagreed.

I am not sure whether either decision is the right one, although both may be.  As for Plan B, it's a little odd for the administration to let a single district court make regulatory law for the entire country without even an appeal.  (Remember all of that talk in the administration's DOMA briefs about how important it was for the issue to be resolved nationwide rather than left to the lower courts?)  On the other hand, perhaps the administration was inclined to make the pill more widely available, and the court simply set the agenda or provided a political excuse.

As for the Illinois prosecutions, the disagreement among the prosecutors and the disagreement between state and federal courts suggests that a higher power will have to resolve this sooner or later.  And the case for acquiescence until then is not obvious.  The Seventh Circuit doesn't sit in review of state prosecutions, and under AEDPA the court of appeals decision is irrelevant to collateral attack.  If the prosecutor doesn't think the statute is constitutional, perhaps he shouldn't enforce it, but if he does I'm not so sure why he cares what the Seventh Circuit thinks.

Posted by Will Baude on June 11, 2013 at 06:00 AM in Constitutional thoughts, Criminal Law, Judicial Process | Permalink | Comments (7) | TrackBack

Friday, June 07, 2013

Where's Fisher?

With the Supreme Court's announcement that it will move to issuing opinions twice a week, it is fair to say we're hitting the final stretch of the term.  And it's moderately interesting that the Court has not yet issued its opinion in Fisher v. University of Texas.  Yes, the case is a big and controversial one, and its common for those cases to take a long time to come out.  But it was argued in October, and the Court usually has all of its October opinions out long before June, no matter how controversial they are.  (OT 2011's last October opinion: April 2; OT 2010's last: March 29; OT 2009's: April 28; OT 2008's: April 21.)

So what's taking so long? Keeping in mind the high likelihood that the majority opinion was assigned to Justice Kennedy, and that the argument appeared to favor petitioner, I have four hypotheses for the delay:

  1. Just slow going.  Perhaps the majority opinion is just very long, with a very long lead dissent assigned to a justice who writes pretty slowly.  This is possible, of course, but the delay is sufficiently unusual that I think it's likely something more is going on.

  2. Changing the course.  Perhaps there has been a substantial change in the opinion during the course of drafting-- quite possibly by Justice Kennedy himself. The two most obvious possibilities would be that Justice Kennedy initially decided to invalidate Texas's program but has now decided to uphold it (I doubt it), or that Justice Kennedy had initially decided to preserve Grutter but has now decided to overrule it.  I continue to think that both of these hypotheses are wrong, and that the case will be reversed on narrow-tailoring grounds that purport to leave Grutter intact, but I no longer have as high a degree of confidence in that prediction.

  3. Reinforcements.  Justice Kennedy's majority opinions usually avoid getting into extensive fisticuffs with the dissent.  Perhaps, after reading the dissent, another justice in the majority has decided to write a responsive concurring opinion that responds in detail to all of the dissent's claims.  (My nominee for such an opinion would be Justice Alito, perhaps in a reprise of the Alito/Kennedy division of labor in Ricci v. DeStefano.)  This adds significant time because the concurrence doesn't even get started until after the dissent has circulated, and there can also be a ton of last-minute revisions.

  4. Originalism.  Justices Thomas and Scalia have never provided very much of an explanation for how their view that the 14th Amendment requires symmetrical colorblindness is consistent with the Amendment's original meaning.  There are plausible arguments available to them, as Mike Rappaport has recently shown, but they haven't talked about them much.  Perhaps one of them has finally decided to get into the issue, perhaps after being provoked by some comments in the dissent.  (My nominee for such an opinion would be Justice Thomas, perhaps in a reprise of some of his famously long separate opinions like Holder v. Hall or U.S Term Limits v. Thornton.)

Of course it's very hard for those outside the building to correctly guess what's going on inside.  (Mark Walsh has a few more hypotheses about the delay here.) But I suppose that before my guest-blogging stint is up, we shall see.


Posted by Will Baude on June 7, 2013 at 09:00 AM in Constitutional thoughts, Judicial Process | Permalink | Comments (3) | TrackBack

Monday, March 11, 2013

"The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)

10EDITORIALSUB-articleLargeThe title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday's New York Times.  Here are excerpts (with a final key point stressed by me below):

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge.  The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.”  The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases.  This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them.  Florida set up public defender offices when Gideon was decided, and the Miami office was a standout.  But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm.  In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers.  In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes....

The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades.  They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak defense lawyers who fail to push back....

After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of the Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend [in an article available here] that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death-penalty cases. 

There is no shortage of lawyers to do this work.  What stands in the way is an undemocratic, deep-seated lack of political will.

I have stressed the penultimate sentence in this commentary because readers with any connection to law schools and on-going debates over legal-education reform know well the modern concerns and problems caused by the graduation of so many lawyers with large debt loads while there are, apparently, not enough viable jobs in the legal marketplace to employ all the debt-saddled new lawyers.  This commentary provides a ready reminder that there are ample legal needs going unaddressed and unresolved even when there are ample new lawyers looking for jobs and struggling to deal with their education debt. 

Leaders involved with legal eduction reform and involved with right-to-counsel reform need to get together ASAP to try to fix two big problems with one solution.  Problematically, if the private marketplace could readily engineer a solution to the problems of inadequate counsel for indigent defendants, these matters would not even be a modern concern.  But, because of market failings and limitations, these problems need a government solution; the federal government would seem to be the right source for a solution given that the federal government has been giving out the guaranteed student loans that helped produce a glut of debt-saddled new lawyers. 

In another setting a few years ago, I talked up here the notion of a "Lawyer Peace Corps" or "Lawyering for America" to do good while helping new law grads to better.  The 50th Anniversary of the Gideon decision would seem to be an ideal moment to get such programming off the ground.

Cross-posted at Sentencing Law & Policy (where I do most of my blogging).

Posted by Douglas A. Berman on March 11, 2013 at 12:23 PM in Criminal Law, Current Affairs, Judicial Process, Life of Law Schools | Permalink | Comments (4) | TrackBack

Thursday, February 28, 2013

Still more on judicial language

Picking up on Bill's thread on judicial language comes this from Aaron Caplan (Loyola-LA): In his opinion for the Court in Scott v. Harris (dealing with summary judgment in a § 1983 action resulting from a high-speed chase that was video-recorded), Justice Scalia repeatedly referred to Harris as "respondent" while referring to Deputy Scott by name. This included six times in which Scalia quoted either from the lower-court decision or from Justice Stevens' dissent and went out of his way to replace Harris' name with [respondent].

What should we draw from that--whether about judicial decision making, judicial writing, legal writing, Justice Scalia, or anything else? And is it worth talking about in class and, if so, how? Aaron posed the latter question to the Civ Pro Prof listserv, in anticipation of teaching Scott. I just finished it today, but am going to point this out to my students on the course blog.

Posted by Howard Wasserman on February 28, 2013 at 06:08 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1) | TrackBack

Wednesday, October 24, 2012

The Wrong Way to PSA

People have  been discussing Bridget Mary McCormack’s recent, 4-minute web ad in support of her candidacy for the Michigan Supreme Court – a video which features the reunited cast of The West Wing.  The ad is clever enough for what it is – a way to raise McCormack’s profile in a down-ballot race where citizens are less likely to vote.  And it says all the things a judicial candidate must say to win over voters: McCormack favors “justice for ordinary people, for families with sick kids, for victims of domestic violence.”  She has "fought to free innocent men and women, and put the actual criminals behind bars."  Reciting these qualities is somewhat trite, of course – what judicial candidate would ever come out as soft on crime or against families and victims? – but otherwise, it’s all well and good.  As an advertisement for a particular candidate in a contested race, it seems quite effective. 

However, a shorter version of the ad – pitched as a nonpartisan public service announcement – fails spectacularly.   That version retains the identical West Wing “walk and talk” setup but omits any specific mention of McCormack’s qualifications.  Instead, it positions itself solely as (in CJ’s words) “a gentle reminder for people to look for the nonpartisan section on their ballot and go vote there.”  Voting is important, the ad tells us, because state supreme courts rule on issues that affect millions of Americans, like civil rights, workplace rights, and the environment. 

These are certainly issues where an informed vote matters.  But in the short-form ad, the Bartlett Administration braintrust offers no guidance whatsoever on how citizens might actually cast such a vote.  Indeed, the ad doesn’t even recommend that citizens learn anything about the candidates before stepping into the voting booth.  The cognitive dissonance is jarring: your vote is critically important, the ad suggests, but not so important that you should take the time to enlighten it in any way.

The short-form PSA is all the more troubling because it deliberately targets citizens who engage in straight-ticket voting for legislative and executive races (i.e., checking one box to vote for all Democrats or all Republicans).  As Meryl Chertoff and Dustin Robinson recently highlighted, this “check one and you’re done” approach raises significant accountability problems in states with partisan judicial elections. In nonpartisan judicial races, the dangers of voter ignorance are exacerbated even further: without any readily available information, voters who otherwise rely on party affiliation are apt to choose among candidates based on factors like gender, perceived race or ethnicity, a familiar-sounding last name, or even complete whimsy.  Toby, Josh, Donna and the gang may as well look into the camera and say, “Go into the booth and flip a coin.  People’s lives depend on it.”

There are better ways to get out an informed vote in judicial elections.  Two years ago, the Colorado Bar Association sponsored this lighthearted PSA which encouraged voters to actually learn something about their judges before deciding their fates in the voting booth.  To be sure, Colorado benefits from some structural advantages over Michigan, including retention elections and a formal judicial performance evaluation program (the benefits of which I discuss here).  But at least the message in Colorado was the right one: if you’re going to vote in judicial elections, be responsible enough to learn something about the people on the ballot before you do.  Regardless of how your state chooses judges, that’s a good message for all of us to take into Election Day.

Posted by Jordan Singer on October 24, 2012 at 09:31 AM in Current Affairs, Judicial Process, Law and Politics | Permalink | Comments (1) | TrackBack

Thursday, October 18, 2012

The Presidential Election and the Lower Federal Courts

Over at the Volokh Conspiracy, Ilya Somin wonders why no one is asking the Presidential candidates about judicial nominations during the debates.  I sympathize with the concern but find it a bit misplaced: in any of the typical debate formats, the responses will inevitably tend toward vague descriptions of “strict constructionists” or individuals with sufficient “empathy.”  This may rally the base but otherwise offers little insight.   (The problem isn’t limited to Presidential aspirants: in their second debate, Massachusetts senate candidates Elizabeth Warren and Scott Brown offered two of the least illuminating answers ever when asked to name their model Supreme Court Justice.)

One way to get better answers on the candidate’s view of the relevance and importance of judicial nominations is to focus on the lower courts.  The Supreme Court captures public attention, of course, but it is the lower courts where most citizens have contact with the federal judiciary, and where a President can leave a more lasting legacy.  To that end, here are two questions I would like to see posed to the candidates before Election Day:

President Obama, you inherited 41 federal district court vacancies on Inauguration Day 2009, yet during the entirety of your first year in office you nominated a mere 21 people to fill those vacancies. (Fuller details here.)  Today there are 62 vacancies in the district courts, representing a shortfall of almost 10 percent.   Despite this crisis, and even though you enjoyed a significant Democratic majority in the Senate for your first two years in office, your overall pace of lower court nominations has lagged significantly behind your two immediate predecessors.  Why?

Governor Romney, during your time as Governor of Massachusetts you established a Judicial Nominating Commission to vet judicial candidates and send the most promising individuals to you for further consideration.  The Nominating Commission was heralded as a model for the country, particularly since it relied on a blind review that did not consider the candidate's party affiliation.  Yet some have complained that you stripped the commission of many of its powers toward the end of your term in order to put a more partisan stamp on the judiciary.  What lessons did you learn from the Nominating Commission experience, and as President, would you favor the expanded use of senatorial screening committees to help select qualified candidates for nomination to district court judgeships?

Posted by Jordan Singer on October 18, 2012 at 11:06 AM in Current Affairs, Judicial Process, Law and Politics | Permalink | Comments (1) | TrackBack

Thursday, October 11, 2012

Judicial Legitimacy When the Stakes Are Personal

I just finished reading the Federal Circuit’s new opinion in Beer v. United States, in which a divided en banc panel held that the Compensation Clause of the Constitution bars Congress from revoking cost-of-living-adjustment (COLA) raises for sitting federal judges.  The majority concluded that current Article III judges had reasonably relied on the provisions of the Ethics Reform Act of 1989, which set out the formula for automatic annual COLA raises.  The majority also concluded that Congressional legislation revoking the judges’ COLA raises in certain subsequent years constituted an impermissible diminution in judicial salary.  In reaching its decision, the Federal Circuit overruled its own 2001 decision in Williams v. United States, and distinguished the Supreme Court’s decision in United States v. Will, on which the Williams case relied.  A sharp dissent argued that the majority’s position, no matter how reasonable or just, impermissibly disregarded an authoritative opinion of the Supreme Court.

The Beer case is a gold mine for those of us who teach and think about the judicial process.  Among other things, it touches directly on the debate over pragmatic approaches to judging, judicial ethics and recusal, federal judicial selection, the legislative-judicial relationship, and the process of justifying decisions in written opinions.  It also offers an interesting demonstration of how a court can secure the legitimacy of a decision when the judges themselves are not – indeed, cannot be – neutral.

The neutrality of a decisionmaker is a well-recognized component of procedural fairness, and one of the most important contributors to the legitimacy and public acceptance of a decision.  Public perceptions of whether legal procedures and outcomes are fair often turn on the belief that the decision was rendered by an impartial, honest, and principled judge.  Even if the outcome is viewed as favorable, Americans are (rightfully) queasy if they believe that the decision was made with the judge’s personal or pecuniary gain in mind.

As the Federal Circuit readily acknowledged, in Beer a financial conflict of interest was unavoidable.  The legislation at issue affected the salary of every Article III judge, regardless of level of court or geographic placement.  The court (with the agreement of both sides) invoked the time-honored Rule of Necessity in concluding that it was appropriate for it to rule on the matter.  But the Rule of Necessity does not solve the neutrality problem.  It allows the court to rule when no other judges are available, but does not by itself lend sufficient legitimacy or credence to the ruling. 

Yet the Federal Circuit managed to minimize the neutrality problem and preserve its legitimacy – and it did so by employing three techniques that normally are thought to threaten legitimacy.  First, the court unapologetically stressed the importance of judicial independence, and tied stable and predictable salary increases to that value. This was a potentially risky move.  Notwithstanding general public support for an independent judiciary, naked assertions of judicial independence historically have backfired.  (Rose Bird’s failed bid for retention as California’s Chief Justice in 1986 is one notorious recent example.)   In Beer, however, the court was careful to describe judicial independence as a public good rather than a perk of wearing the robe.  Even though the judges faced a conflict of interest in the case before them, the larger value of judicial neutrality in the vast bulk of cases was better preserved through an independent (read: financially secure) judiciary.

Second, and somewhat counterintuitively, the court’s legitimacy was probably helped by the presence of a dissenting opinion.  Dissents are often thought to weaken the force or legitimacy of a majority opinion, either by pointing out flaws in the majority’s reasoning or by pressing the majority author to narrow the scope of a ruling or soften his or her rhetoric.  The presence of a vigorous dissent in Beer, however, sent the message that the court was aware of, and considered, a multiplicity of views – including views that contradicted the judges’ own pecuniary interest.  A unanimous opinion might well have sent the opposite message: that the court failed to critically examine all views before reaching its decision.  (As I explain here, this “groupthink” interpretation of a unanimous opinion likely contributed to the non-retention of three Iowa Supreme Court justices in 2010.)

Finally, Judge O’Malley’s substantial concurrence in Beer took a risk by eschewing a formalist/legalist approach in favor of a much more functional or pragmatic form of decisionmaking.  Judge O’Malley dedicated several pages to explaining how the relevant legislation had created vested expectations for Article III judges, and exploring the negative consequences of abandoning an expectations-based approach.   While legal pragmatism has its adherents, it is more susceptible to public concerns about court legitimacy precisely because it diverges from the comfortable formula of looking backward to precedent, and instead looks ahead to the potential consequences of a decision.  But here, too, the Federal Circuit balanced the pragmatic and legalistic approaches, emphasizing legalism in the majority opinion and pragmatism in the concurrence.  The result is a set of opinions that highlight many forms of legal reasoning and reinforce the message that the court addressed the issue thoughtfully and carefully.

The Federal Circuit obviously lacks the salience of the Supreme Court, yet public acceptance of its decisions is no less important.  Beer v. United States suggests, in a fascinating manner, how court legitimacy can be sustained by combining diverse components of legal justification in unexpected ways.

Posted by Jordan Singer on October 11, 2012 at 01:58 PM in Judicial Process, Law and Politics | Permalink | Comments (1) | TrackBack

Friday, May 04, 2012

Comparable measures of ideology

An interesting article in the most recent American Journal of Political Science by Joshua Clinton, Anthony Bertelli, Christain Grose, David Lewis and David Nixon, measures the preferences of Bureaucratic Agency actors. Although the article focuses on congress and the presidency, it has relevance for those who study law and courts because there is so much interaction between courts and federal agencies. It is one more useful tool to help determine the influence of courts on agency policy - of course that happens to be an area in which I do a lot of work, so I am particularly interested.

Now back to listening to the late Levon Helm and the Band

Posted by Robert Howard on May 4, 2012 at 10:43 AM in Article Spotlight, Judicial Process, Law and Politics | Permalink | Comments (0) | TrackBack

Friday, February 10, 2012

Bargaining Your Way Out of War Crimes

Writing book reviews may be a fading fad, but I’ve agreed to do one for Criminal Law and Philosophy on Mark Freeman’s Necessary Evils: Amnesties and the Search for Justice. Freeman argues that the push in international criminal law towards banning the amnesty, although certainly understandable, comes with some costs and, hence, isn’t self-evident. According to Freeman, some room should be left for human rights abusers to bargain away their criminal liability in exchange for peace. Ultimately, Freeman sets a very high bar on the permissibility of such bargains. His bar is so high, and his conditions so complex/onerous, that in practice under his own framework the amnesty may never be possible. In any event, Freeman’s position is an unorthodox one for an international lawyer to take. In this regard, his book is brave indeed. To be sure, political scientists routinely embrace the amnesty as a means to do business. But for lawyers, steeped in retributivist ethics, the cost of doing such business may be too much to bear. Freeman frequently turns to Dan Markel’s work in order to offer theoretical background on interplay between the deontological need to punish and the utilitarian reality that sometimes non-punishment may serve a greater good. That said, these questions are far from theoretical. In September 2011, Uganda’s Constitutional Court respected an amnesty given domestically to Col. Thomas Kwoyelo, who is among the highest level leaders of the rebel Lords’ Resistance Army (LRA), notorious for massive human rights abuses, wide-scale rape, and abduction of child soldiers. The Court ordered his release; the Court of Appeals affirmed in November; but Kwoyelo is still in custody. Kwoyelo himself had entered LRA as a teenage child soldier. In response to international pressure, a couple of years ago Uganda established an International Crimes Division in its domestic courts to prosecute LRA fighters. Kwoyelo was the first person brought to trial. These fighters, like Kwoyelo, had previously been granted an amnesty (pursuant to legislation adopted in 2000) in exchange for their renunciation of violence. The debate over Kyowelo’s amnesty therefore involves tension within branches of the same state: Uganda’s constitutional imperatives to equal treatment of its citizens, on the one hand, and Uganda’s prosecutorial obligations to punish perpetrators of serious international crimes, on the other. One angle to the amnesty debate that I have not seen much of in the literature, and which I hope to explore at greater length in the review, is how reneging on an amnesty previously granted may in and of itself amount to a rule of law denial, thereby imperiling constitutional legitimacy. In this regard, respecting a painful and unattractive bargain may signal a deontological commitment to promise and predictability. Any thoughts on how upholding ugly bargains may prettify a new constitutional order? How scuttling them, however attractive in the short term, may come to blight constitutional credibility?

Posted by Mark Drumbl on February 10, 2012 at 11:33 AM in Constitutional thoughts, Criminal Law, International Law, Judicial Process, Law and Politics, Privilege or Punish | Permalink | Comments (0) | TrackBack

Friday, November 04, 2011

Shopping for Settlement

Judge Rakoff of the Southern District of New York has hit the papers again as a critic of the SEC's settlement processes, now in the SEC v. Citigroup Global Markets case.  (One report here.) 

One function of the review process is to publicize SEC settlement practices.  The publicity pressure seems aimed at a few SEC practices, including the practice of allowing settlement with the SEC without admitting or denying the allegations.  Judge Rakoff's opinions also highlight some fundamental and possibly intractable problems with entity-level punishment.  Namely, who pays when a corporation pays a penalty?  (probably current shareholders) Does the channeling of fines to injured investors through Fair Funds change anything (my article about this here)? And to what extent should the SEC pursue individuals? 

These settlement reviews in high profile cases also force out information about the facts of the particular case.   For instance, one result of Judge Rakoff's initial resistence to the settlement in Bank of America was that the Bank ultimately stipulated to certain facts.

So maybe the chance of public judicial criticism constrains agencies.  But both of the options currently on the table seem unappealing: judicial rubber stamping on the one hand or unpredictable judicial intervention on the other.  The first is unappealing not only because the agency can come back to the court to enforce compliance (which it seems never to do), but also because these agreements implicate regulatory policy, and the agency is officially acting on the public’s behalf. 

On the other hand, I'm not sure the extent of scrutiny should depend on a figurative spin of the judicial assignment wheel.  (If it does, a useful question for Rakoff-watchers is how his recent change to senior status as a judge affects the case assignment process.)  To the extent particular judges are more willing to scrutinize settlements or develop a reputation for rejecting settlements, agencies may forum shop to avoid this scrutiny.  In other words, they may shop for settlement.  Finally, it may push agencies to select remedies that avoid judicial review.

 The backstory: This is not the first time Judge Rakoff has scrutinized, initially rejected, and tweaked a settlement, as well as calling the SEC to task in colorful, widely reported language. When Judge Rakoff reviewed the SEC's 2009 settlement with Bank of America, he said agency claims of victory created a “façade of enforcement.”   His initial rejection of the Worldcom settlement in 2003 raised the same sort of questions: Who benefits?  What changes in corporate governance?  How did the SEC come up with this settlement? (rejection here)

The standard of review: These disputes arise in the context of settlement review by judges.  Courts review settlements with the SEC to make sure they are “fair, reasonable, adequate, and in the public interest."  The caselaw on how to review settlements reflects the hybrid nature of the settlements: they are both court order and contract.  Courts that have emphasized the contractual aspect of these agreements have examined primarily whether the contract was made voluntarily; if so, the court declined to redefine the agreed-upon terms.  Others have taken a closer look based on the court's continuing monitoring role, although courts often defer to the agency's view of the public interest.   

Posted by Verity Winship on November 4, 2011 at 05:54 PM in Civil Procedure, Corporate, Judicial Process | Permalink | Comments (2) | TrackBack

Wednesday, October 26, 2011

Public Judges and Private Judging

Judges on the Delaware Chancery Court are being sued for participating in “secret judicial proceeding[s].”  The back story is that the Delaware  legislature passed a statute and then rules a few years ago allowing chancery court judges to act as arbitrators.  (Here is early commentary by Larry Ribstein.)  Arbitration filing fees (an initial $12,000 and then $6000 per day) in Delaware are deposited in the court’s Arbitration Fund Account.  In other words, professional responsibility rules may prevent judges from acting as paid private arbitrators  - basically moonlighting - while also public judges, but that is not what is happening here. 

The complaint was filed yesterday by the Delaware Coalition for Open Government, Inc., in the federal district court in Delaware.  It essentially alleges that an arbitration under these rules violates the First and Fourteenth amendments and the Civil Rights Act because the documents are confidential and not part of a public record or docketing system.  As the complaint says: "Although the statute and rules call the procedure 'arbitration,' it is really litigation under another name."

Can this be?  I ask not as a constitutional scholar, but because I think our court system already facilitates private negotiated contract in some ways, including using public judges to settle cases.  Delaware is unusual in the extent to which it is developing a service that competes with private arbitration services, but other courts have integrated arbitration and mediation into their court system, including into specialized business courts.   A difference in kind or degree? 

Posted by Verity Winship on October 26, 2011 at 03:16 PM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (0) | TrackBack

Friday, October 14, 2011

Behind the Scenes of Six Strikes

Wired has a story on the cozy relationship between content industries and the Obama administration, which resulted in the deployment of the new "six strikes" plan to combat on-line copyright infringement. Internet security and privacy researcher Chris Soghoian obtained e-mail communication between administration officials and industry via a Freedom of Information Act (FoIA) request. (Disclosure: Jonathan Askin and I represent Chris in his appeal regarding this FoIA request.) The e-mails demonstrate vividly what everyone suspected: Hollywood - in the form of the music and movie industries - has an administration eager to be helpful, including by pressuring ISPs. Stay tuned.

Posted by Derek Bambauer on October 14, 2011 at 11:10 AM in Blogging, Culture, Current Affairs, Film, Information and Technology, Intellectual Property, Judicial Process, Law and Politics, Music, Web/Tech | Permalink | Comments (0) | TrackBack

Tuesday, September 06, 2011

Prop 8 at the California Supreme Court

Greetings, Prawfs community! It is an honor to be back. Thank you to Dan and the Prawfs team for having me on this month. I enjoyed speaking with and learning from all of you during my last stint earlier this year and I know this will once again be a rewarding experience.

I am Fellow/VAP at the California Western School of Law in San Diego, California and I am currently on the market (pardon the shamless plug!). My research focuses on free speech on the Internet, social networking behavior and online anonymity. I am in the middle of a multi-stage project on cyberbullying in schools.

My posts this month will indeed touch on technology and speech, but also on gay rights, a passion and interest that underlies much of my work. Hopefully, all posts will also include a healthy dose of fun, humor and insight, but I leave those judgments to you, dear Reader.

At 10 am Pacific (1 pm Eastern), the California Supreme Court will hear arguments in Perry v. Brown, the federal suit challenging the constitutionality of California's ban on same-sex marriage. You can watch the argument live here: The case had already made its way to the Ninth Circuit some months ago, but because a central issue in the case is whether initiative proponents have standing to defend the initiative in federal court when the state declines, the Ninth Circuit certified a question to California's highest court. The question is: Per Arizonans for Official English v. Arizona and Karcher v. May, does California state law grant standing in this case to initiative proponents?

Today's hearing is a profound example of a Federal Court's class in action and a recognition that University of Washington Professor Peter Nicholas is right when he argues that process -- in this case, standing -- has been and will continue to be salient in determining the success or failure of litigating gay rights at the federal level.

Ted Olson will argue that the initiative proponents -- gathered together under the ironically named organization, "protect" -- lack standing as a matter of California state law. It seems to me -- and to Mr. Olson and to Dean Chemerinsky and to Professor Tribe, among others who have written about this issue -- that this is a losing battle for "protect"

As the Supreme Court stated in Arizonans:

Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III's case or controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess "a direct stake in the outcome." Diamond v. Charles, 476 U.S. 54, 62. Petitioners' primary argument--that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored--is dubious because they are not elected state legislators, authorized by state law to represent the State's interests, see Karcher v. May, 484 U.S. 72, 82. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Cf. Don't Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e.g., Food and Commercial Workers v. Brown Group, Inc., 517 U. S. ___, ___, and absent anything in Article XXVIII's state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article's constitutionality in federal court.

The last line is what the certified question to the California Supreme Court is about. The Ninth Circuit wants to know if there is anything in state law -- California's "citizen suit provision" -- that would "support standing" for "protect" But, as the Court implies, even if there is, that is not the end of the story. That is, standing as a matter of state law would be a necessary, but insufficient piece of the puzzle. As a matter of federal law, those seeking to defend Prop 8's ban on same-sex marriage must demonstrate a "direct stake in the outcome." The initiative proponents cannot do that. They cannot show how their marriages will be affected one iota from the state recognizing same-sex unions. Nor can they show how they would be specifically harmed by such recognition. The only party that can demonstrate a harm -- the State -- believes that being forced to issue marriage licenses and recognize the love between two committed gay Californians is a good thing!

Posted by Ari Ezra Waldman on September 6, 2011 at 09:54 AM in Constitutional thoughts, Current Affairs, Judicial Process | Permalink | Comments (2) | TrackBack

Sunday, June 26, 2011

"In Defense of Judicial Elections" - author Q&A

In their book “In Defense of Judicial Elections” authors Melinda Gann Hall and Chris Bonneau do just that – they provide a defense of judicial elections. Their work has been somewhat controversial and so I decided to spice up our Prawfs summer by conducting a very brief “E-Interview” with them on the subject. My understanding is that they are generally willing to engage in some ‘give and take’ in the comments section of the blog. This does not necessarily mean that they will answer every question – it’s their call.

JY - Judicial elections have gotten a lot of media attention in recent years and a number of groups and even former SCOTUS justice Sandra Day O'Connor have voiced their opposition to them. In your book "In Defense of Judicial Elections" you obviously takes a different view - please elaborate.

CB - I think the main difference is that our research and analysis begins from a place of agnosticism and we only make conclusions based on the empirical data.  Moreover, our position is subject to being revised in the future if the evidence warrants.  The vast majority of the opponents of judicial elections are not interested in how they actually work.  They aren't interested in empirically verifying their claims.  And, when people dare to question their assumptions (whether it be us or Jim Gibson or Matt Streb or Eric Posner or anyone else), they simply ignore the evidence and shift their argument.  

MGH: The most significant difference between our book and much of the advocacy taking place on this topic is that we rely on empirics rather than outdated normative theories or unsubstantiated assumptions. Elections certainly have limitations but of the case against them rests on hyperbolic rhetoric or unverified hypotheses.

JY - Aren't you concerned that some of the less desirable aspects of political elections will influence judicial decision making? Won't powerful interests cast undue influence on case outcomes, given that they might have helped finance a judge’s reelection or might do so in the future?

MGH - Recusal standards and disclosure requirements will go a long way toward remedying this problem. However, there is no reason to expect a quid pro quo relationship between donors and judges. Money tends to support candidates who share a group's interests. There is no evidence at all that judges are "bought. We also should acknowledge that there is no way to remove politics from the judicial selection process. Appointment systems, including the “merit” plan, have their own shortcomings.

CB - No more so than some of the less desirable aspects of appointments will influence such decisionmaking.  This is a point we have made numerous times, but bears repeating:  there is simply no evidence--NONE--of justice being for sale.  Moreover, do we really think that "powerful interests" don't have undue influence on case outcomes as, say, the US Supreme Court?  Of course they do.  At least with elections, voters have a choice and can oust rogue judges.  

JY - In recent decades it has become quite clear that judicial elections can be ugly affairs with lots of negative campaigning - doesn't this hurt the judiciary's image - making people see them less as esteemed decision makers and  more as politicians in robes?

MGH - Judges are politicians in robes in some sense, and voters are smart enough to recognize this. Judges have a great deal of discretion,  and their values influence what they do. Also keep in mind that state supreme court elections have been heated for decades, with defeat rates that surpass many other elected offices. If competitive elections, or elections at all, harm judicial legitimacy, there would be obvious evidence of this by now. 

CB: This is a great question and it is a legitimate concern.  However, in a series of survey experiments--in KY as well as nationwide--Jim Gibson has found that negative ads and candidates talking about policy have no consequences for legitimacy.  He did find a negative effect for campaign contributions, finding that campaign contributions do lead to a loss of legitimacy (this is also true for state legislatures).  But, and this is a crucial point, the net effects of elections is still positive. That is, even with the costs incurred by campaign contributions, judicial elections are legitimacy-ENHANCING institutions.  This is a really important finding and undermines the arguments of folks like Justice O'Connor and Justice at Stake. 


Posted by Jeff Yates on June 26, 2011 at 08:23 PM in Books, Current Affairs, Judicial Process, Law and Politics, Science | Permalink | Comments (1) | TrackBack

Tuesday, June 07, 2011

Is deliberation overrated?

I'm not saying that deliberation is necessarily overrated, but I'm starting to wonder about its relative value. In recent years I've read a number of books and articles on the decision making processes of groups such as James Surowieki's The Wisdom of Crowds (2005) and Cass Sunstein's Infotopia: How Many Minds Produce Knowledge (2008), and found them to be very interesting and insightful. Both of these books at least suggest the possibility that group decision making may not always be better with group deliberation.

Of course, to suggest that something is 'overrated' typically implies that it is somewhat highly rated in the first place. When I look around, I see deliberation everywhere - government decisions, academic committee decsisions, tenure decisions, where to eat lunch, jury outcomes, Supreme Court outcomes (ok, only to a degree on that one). I think it's fair to say that deliberation is cherished in this country. But is it all that it's cracked up to be? What are its attributes? How do we evaluate its worth (relative to other systems)?

For a bit of class fun last semester, I tried a class exercise that was suggested by one of my readings on this subject.

I divided the class into three groups of equal size: 1) The deliberation group, 2) The secret vote group, and 3) the list vote group. I then held up for the class to see (all had roughly equal views) a glass container of paper clips. They were able to view the container for 30 seconds. I then asked the groups to decide how many paper clips were in the container. The secret ballot group was to do just that - each person would make a guess, write it down in private and their estimates would be averaged. The list  group would use a list - the first person to decide would write their estimate on the top of the list and then the estimates would go from there (everyone could see the prior estimates)- and they were averaged. The deliberation group deliberated on the best estimate and used a consensus decision rule on the number of paper clips.

The results? The best estimate was by the secret vote group, followed by the list group, and the worst estimate (by far) was by the deliberation group. Of course, this little exercise is hardly ready for scientific peer review and was done primarily for fun and to introduce the class to varying decision methods. However, given the prevalence of deliberation in our society, might it give us pause to think about whether it's 'overrated'? I'm not sure. Certainly there are other considerations at issue (e.g. how the process makes participants feel). But I thought I'd see what Prawfs readers thought.

Posted by Jeff Yates on June 7, 2011 at 11:58 AM in Criminal Law, Deliberation and voices, Games, Judicial Process, Law and Politics, Legal Theory, Life of Law Schools, Science, Teaching Law | Permalink | Comments (3) | TrackBack

Wednesday, May 25, 2011

How Should Elected Judges Interpret Statutes?

Federal judges are unelected and, basically, politically unaccountable. Most state judges are elected in some form or another. What (if any) significance does this hold when it comes to how judges should interpret statutes? There is some evidence that modes of selection and retention do in fact affect judicial behavior, but here I am asking the normative question. Should a judge's elected character make a difference to the judge's interpretive method?

A) No. What matters is the judicial role. That role determines the proper interpretive method. How one got into the role is irrelevant.

B) Yes. Elected judges can legitimately engage in looser interpretation or more aggressive interpretive maneuvers because they have a better democratic pedigree. (I concede that some of the terms being used here are vague, contested, complex, etc. but I hope they have enough content to allow the reader to agree or not.)

C) Yes, but in the opposite way. Elected judges have to be more restrained precisely because they lack the right kind of independence.

D) None of the above.

As you might guess, this issue is implicated in one of my current research projects. I am tentatively endorsing B. Perhaps you can save me from making a fool of myself by explaining why I'm totally wrong before I post the draft on SSRN.

Posted by Aaron Bruhl on May 25, 2011 at 05:05 PM in Judicial Process, Legal Theory | Permalink | Comments (11) | TrackBack

Wednesday, May 18, 2011

Deferring to agency amicus briefs that present new guidance

In reading some of the Supreme Court's recent cases, I was intrigued by its willingness to defer to administrative interpretations presented to the Court in the form of amicus briefs filed by the relevant agency or by the Solicitor General. I refer in particular to Williamson v. Mazda Motor (relying, in part, on a brief expressing the government's view that a federal vehicle-safety regulation did not preempt a state tort suit) and Chase Bank v. McCoy (deferring to the agency's interpretation of its own regulation, which was conveyed in an amicus brief). Giving some degree of deference to positions expressed in agency amicus briefs is not a new development, though it does seem to me that the Court perhaps used to express a bit more hesitation about doing so.

In any event, whether or not there is a trend in this regard, one interesting feature of deferring to an amicus brief is that the Supreme Court might be relying on an interpretive authority that did not exist until the Supreme Court's decision to review the case brought it into existence. (This new-authority scenario doesn't describe every instance in which the Court defers to a brief. After all, agencies sometimes file briefs in lower courts; plus, some briefs merely restate administrative guidance offered elsewhere, in which case the deference is not to the brief's position per se.) The right answer to the case could therefore change as the case moves from the lower court to the high court. That seems, at first blush, a bit strange. How should we respond to this state of affairs?

There are a few possibilities:

1. Because uniformity, consistency, and predictability are important, the lower courts should do a better job of conforming their interpretive practices to the Supreme Court's model. Indeed, in Chase Bank v. McCoy, the Supreme Court seemed to criticize the Ninth Circuit for not inviting the agency to submit an amicus brief. And yet . . . Should we really expect every lower court in the land to ask for, and wait for, an agency's views whenever a statute administered by the agency is the subject of litigation? Would the agencies and the Department of Justice welcome a regime in which they had to take positions like this routinely?

2. Because uniformity, consistency, and predictability are important, the Supreme Court should stop deferring to new guidance provided in government amicus briefs.

3. No change is needed. When the Supreme Court decides to hear a case, it should try to get the right answer, even if that means relying on a new source of guidance that was called into existence by its decision to review the case. If Congress passed a new statute that applied to pending cases, the Court would apply that. Same thing here. (Here I am borrowing from footnote 6 of Justice Scalia's dissent in Mead.)

Thoughts? (I should add that I recognize that the considerations presented here concern just one aspect of the larger issue of deferring to agency views expressed in connection with litigation.)

Posted by Aaron Bruhl on May 18, 2011 at 04:20 PM in Civil Procedure, Judicial Process | Permalink | Comments (6) | TrackBack

Thursday, May 12, 2011

Waiting for Davis v. United States -- or not waiting

One interesting Supreme Court case still awaiting decision this term is Davis v. United States. The case presents the question whether the good-faith exception to the exclusionary rule applies in a situation in which a search was legal when conducted but becomes illegal based on a new rule announced while the case is pending on direct appeal. The new rule at issue in Davis is Arizona v. Gant (2009), which concerned vehicular searches; the search in Davis took place before Gant and was legal under pre-Gant circuit law, but then Gant was decided while the case was pending before the court of appeals. The court of appeals held that Gant provided no remedy, essentially reasoning that the point of the exclusionary rule is to deter police misconduct; if that is the purpose, then evidence should not be excluded when the police acted in accordance with law that was valid at the time.

Davis is interesting for all sorts of reasons involving the exclusionary rule and, more broadly, the retroactivity of judicial decisions. My particular interest has to do with appellate case-management. Defendant Davis is hardly the only person whose case involves the question whether the good-faith exception should apply to pre-Gant searches. Whenever the Supreme Court grants review on a recurring issue like this, there will be plenty of other litigants at various places in the appellate pipeline whose cases involve the same issue. What should lower courts do with these potentially affected cases?

Here is what the Fifth Circuit said in a recent changed-law/exclusionary rule case that happened to come to my attention: "We are aware that the Supreme Court granted certiorari in Davis to address precisely this question. Unless and until the Court instructs otherwise, we are bound to apply this Circuit's binding precedent [i.e. that the good-faith exception applies in changed-law scenarios]." United States v. Curtis (March 11, 2011). It went on to affirm the defendant's conviction.

Now, the court's statement is true enough. A mere grant of certiorari does not change circuit law. But there is another option, right? Namely, the court of appeals could just wait about three months and see how Davis turns out. To be clear, I'm not saying that delaying decision is, all things considered, the right call in this case. The question of whether to hold cases in abeyance when the Supreme Court has granted certiorari is surprisingly complicated and does not admit of across-the-board rules, or so I've argued elsewhere. Sometimes courts decide to wait for a forthcoming potential change in law, sometimes they decide not to wait, and sometimes (as here) they act as if no choice is available to them. But whatever the court does, it is making a choice.

Bonus question: If you are the attorney for someone like Curtis, what is your next move?

Posted by Aaron Bruhl on May 12, 2011 at 09:39 AM in Civil Procedure, Criminal Law, Judicial Process | Permalink | Comments (3) | TrackBack

Thursday, May 05, 2011

AT&T v. Concepcion and Adherence to Minority Views

Last week the Supreme Court decided AT&T Mobility v. Concepcion, in which it held (5-4, along the "usual" ideological lines) that the Federal Arbitration Act preempted a state-law rule deeming an arbitration clause's ban on class proceedings unconscionable. The case came from the Ninth Circuit, which was applying California unconscionability law. That the case came from a federal court rather than a state court was important. Had the case come from a state court, it might have turned out differently. That is because Justice Thomas believes that the FAA does not apply in state courts, and he has continued to adhere to this view despite multiple precedents to the contrary. See, e.g., his dissents in Preston v. Ferrer (2008); Buckeye Check Cashing v. Cardegna (2006); Doctor's Assocs. v. Casarotto (1996). (For other reasons, he also had problems with the majority's implied preemption analysis in AT&T v. Concepcion itself, but he reluctantly joined the opinion.) In an alternate universe where the case came from a state court, he presumably would have joined the four dissenters in AT&T v. Concepcion in voting not to reverse a state court's unconscionability holding, though for different reasons. (Here I leave aside the possibility that the Court would overrule itself on whether the FAA applies in state courts, but see more on that below.)

Let's return to the actual universe and suppose that tomorrow a state court issues an opinion striking down a class waiver in circumstances that are not materially distinguishable from those in AT&T v. Concepcion. If the Supreme Court took the case, how would it come out? Would Thomas adhere to his prior views on the FAA in state courts? Would the four dissenters adhere to their AT&T v. Concepcion dissent?

There are a few possibilities:

1. Nobody adheres to their prior dissents. FAA preemption wins 9-0.

2. Thomas adheres as usual, the four dissenters do not adhere. FAA preemption wins 8-1.

3. The four dissenters adhere, Thomas does not. Same 5-4 as AT&T v. Concepcion. One might wonder why Thomas would not adhere here, when he has repeatedly in the past. One possibility is that, even though he thinks the FAA shouldn't apply in state courts at all, that view has been rejected by the Court and, for the sake of enforcing lower court obedience to Supreme Court law (even incorrect law), a state court that deviated on indistinguishable facts couldn't be allowed to get away with that.

4. An even more interesting one: all adhere. FAA preemption loses 5-4, though perhaps not with a majority opinion. The result flips, in other words.

Now, my scenario is perhaps a bit unrealistic. When is a case not really distinguishable? Why are we assuming the Supreme Court would decide such a case rather than denying cert? Nonetheless, I think it is an interesting question. What do you think would happen? Any state courts out there who would like to help us find out?!

Oh, and I suppose there is at least one more option:

5. The Court revisits the question whether the FAA applies in state courts and overrules its precedents. Thomas and Scalia are votes in favor of that. We don't know for sure how the new justices feel about it. It would strike me as pretty extraordinary for the Court to overrule here. This is a statutory precedent (well, very loosely anyway!), and those are supposed to be stronger. And there are multiple cases, not just one. Seems like a "super precedent," as Arlen Specter might put it.

Posted by Aaron Bruhl on May 5, 2011 at 01:50 PM in Civil Procedure, Judicial Process | Permalink | Comments (1) | TrackBack

Monday, April 04, 2011

Arizona Tax Standing Case and the Kagan dissent

This case is within Rick Garnett's baliwick and if he is torn, as his post indicates, far be it from me to offer any wisdom.  But I do commend to you Justice Kagan's remarkably coherent, rigorous, and lawlerly dissent.  Kennedy v. Kagan . . . "it's on," the wrestling referee might say!

The insistence by the newest justice that there is an equivalence between an appropriation and a tax credit (captured shrewedly by Harvard's Stanley Surrey in his original conception of tax expenditures) seems accurate.  There may well be compelling policy arguments to configure a difference for the purpose of taxpayer standing in Establishment clause jurisprudence, but EK seems sharply persuasive in suggesting that AK hasn't conjured up much in his florid (!) majority opinion. 

In any case, there's just a lot of stuff packed into this well-written dissent.  There is an interesting exegesis on the purposes behind state tax policymaking; there are some meaningful comments about the survivability of Flast; there are some lucid notes about Madison and the concerns about expropriation in the religious context; and there are hard-hitting, though mannerly, criticisms of the majority's reasoning.  One should be cautious about tea leave reading in the middle part of a justice's freshman year I suppose, but this well-composed dissent in (perhaps) an otherwise unremarkable taxpayer standing controversy intrigues nonetheless.

Posted by dan rodriguez on April 4, 2011 at 11:21 AM in Constitutional thoughts, Judicial Process, Tax | Permalink | Comments (9) | TrackBack

Tuesday, March 01, 2011

Oral argument is for the justices?

Interesting article in today's Washington Post about the way oral argument is becoming even-more dominated by justices' questions rather than attorneys' answers to those questions. One explanation is that Justices Sotomayor and Kagan are more aggressive than the justices (Souter and Stevens) they replaced. Another is the statement, originally attributed to Kagan, that oral argument is for the justices, not for the advocates:

Lawyers have their say in the briefs they file with the court, she said, and oral arguments are for the justices.

"The argument is for us to say, 'Well, yes, we've read your brief, we know what you think of the case, but here are the questions that that inspired in us,' " Kagan said, noting that the justices do not discuss a case beforehand. "So oral argument provides the first chance for you to see what your colleagues might think about a case, what's worrying them about a case, what interests them about a case."


Posted by Howard Wasserman on March 1, 2011 at 08:02 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1) | TrackBack

Tuesday, February 15, 2011

The Persistence of Legal Error

When I was in my first semester of law school, I was given a short memo assignment involving some principle of Connecticut contract law. I quickly found a case stating the relevant rule of law--every contract needs consideration, or something. But it quoted an earlier case. Being a good historian, I knew I couldn't just use the more recent case--I had to track this down to its source. So I looked up the earlier case. But that in turn cited an even earlier one for the same rule. So I looked up that one. After about nine or ten iterations of this, I was in the 18th century, and courts were still citing earlier cases, now from English reporters that I couldn't look up as easily. I gave up, and concluded that legal authority worked differently than historical authority--if an earlier court said it, that's good enough, no matter where it originated or what the original context was.

The upside of this is that rules can get transmitted from case to case much more efficiently. The downside is that errors can spread just as easily. Take the idea from copyright law that contributory infringement liability is derived from the tort law concept of enterprise liability. This explanation is widespread in the case law. See, e.g., Perfect 10, Inc. v. Visa Int'l Serv. Ass’n, 494 F.3d 788, 794-95 (9th Cir. 2007); Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1293 (D. Utah 1999); Polygram Int'l Pub., Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1320 (D. Mass. 1994). It's also featured in the influential Nimmer treatise: "A separate avenue for third-party liability in the copyright sphere is contributory infringement, which forms an outgrowth of the tort concept of enterprise liability," Nimmer § 12.04[A][3]. And, it's taught in law schools. The textbook I used to teach copyrights from 2007 through last year used to have only a one-paragraph introduction to secondary liability, followed by cases such as Fonovisa, which included the "enterprise liability" explanation. So, I dutifully repeated it to my students in both copyright and Internet Law, even though I was not really sure what "enterprise liability" was.

It turns out that it is flat wrong. Contributory infringement liability has nothing whatsoever to do with enterprise liability.

The earliest citation for the enterprise liability suggestion, and its apparent origin, is Demetriades v. Kaufmann, 690 F. Supp. 289 (S.D.N.Y. 1988). Demetriades was a case involving copyrighted architectural plans; the plaintiff claimed that the real estate agent and realty firm that had sold an empty lot were contributorily liable for the house built using infringing plans on that lot. The court had to determine whether those two defendants were indirectly liable for the infringement.

The Demetriades court began by correctly noting that "[i]n delineating the contours of this third-party liability, and because copyright is analogous to a species of tort, 'common law concepts of tort liability are relevant in fixing the scope of the statutory copyright remedy . . . .'" But then the court moved from that premise to a surprising conclusion: "Guided, therefore, by well-established precepts of tort liability, it appears that two avenues of third-party liability in copyright have grown up in the law--'vicarious liability' (grounded in the tort concept of respondeat superior) and 'contributory infringement' (founded on the tort concept of enterprise liability)."

Contributory infringement as defined in copyright law is liability for knowingly providing encouragement or assistance to an infringer; it's thus the analog of contributory tortfeasor liability for knowingly aiding a tortfeasor. See Rest. 2d Torts §§ 876, 877. It's not a form of strict liability. Enterprise liability is something completely different. Enterprise liability is a theory of tort liability that emerged in order to hold an entire industry responsible for harm caused by an industry-wide standard when identifying the particular tortfeasor in a given case is impossible. See Black's Law Dictionary, 9th ed. The classic case involves injuries caused by blasting caps to children. It can be impossible to determine after the fact who made a blasting cap that exploded. If the entire industry manufactures blasting caps that are unreasonably dangerous, enterprise liability permits a suit against everyone for their share in the harm. See Hall v. E. I. Du Pont De Nemours & Co., Inc., 345 F. Supp. 353, 376 (E.D.N.Y. 1972).

Bill Patry, in his recent copyright treatise, spends an entire section refuting the "enterprise liability" connection. See 6 Patry on Copyright § 21:44. He goes out of his way to point out that the Demetriades decision was issued by a court that, although within the confines of the Southern District of New York, was in fact located in White Plains. I take it the suggestion is that once you leave the sophistication of Manhattan, knowledge of copyright law decreases proportionately. But in fact the Demetriades court seems to have made its mistake out of an excess of caution. Not simply satisfied to repeat earlier claims about contributory liability's origins in tort law, it attempted to ground that claim. The problem is that it did just enough research to be dangerous.

The court didn't provide any direct support for the problematic sentence, but a sentence later it dropped a footnote that indicates what may have happened. First, the court complained that the relevant authorities were unhelpful in distinguishing between contributory and vicarious infringement. As to the canonical decision in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2d Cir. 1971), this criticism seems unfair, but it is certainly accurate as to the Supreme Court's then-recent decision in Sony v. Universal, the "Betamax" case, and may have been accurate as to the Nimmer treatise as it existed at the time. The Demetriades court next noted "the plain distinctions between vicarious and enterprise liability in tort" and cited the 4th edition of William Prosser's Handbook on the Law of Torts §§ 69 & 72, published in 1971, even though an updated 5th edition was released in 1984. It was probably what the judge had available.

Prosser's 4th edition does not mention enterprise liability at all. For theories of imputed liability, it covers, in § 69, vicarious liability, and in § 72, liability among members of a "joint enterprise." That is, if two people or two businesses engage in a joint enterprise, one member might be held liable for the tortious acts of the other. This is just close enough to the rules of liability for contributory tortfeasors to be confusing. Somehow the word "joint" dropped out, and the Demetriades court referred only to "enterprise liability."

For whatever reason--probably because most federal judges, like me, didn't know what enterprise liability was either--the Demetriades court's suggestion was picked up and repeated. Indeed, the popularity of the Demetriades court's suggestion shows that subsequent courts not only didn't know what enterprise liability was, but they also didn't know where contributory infringement liability originated. First, the enterprise liability suggestion was picked up by the influential district court decision in Polygram International v. Nevada/TIG. At some point, it also made its way into the Nimmer treatise, which cited Demetriades. Both Demetriades and Nimmer were cited by the Ninth Circuit in its even more influential decision in Fonovisa v. Cherry Auction in 1997. From there the enterprise liability suggestion has continued to spread, including in the Ninth Circuit's recent Perfect 10 v. Amazon decision.

Fortunately, in none of these cases did the reference to "enterprise liability" actually matter. In Demetriades itself, the court later went on to cite Section 876 of the Second Restatement of Torts--which provides for contributory tortfeasor liability. No court has held that contributory liability in copyright law is a form of strict liability that requires apportioning damages among defendants according to market share. But the repeated citation of contributory liability as originating in enterprise liability poses the danger of such a result, and in the meantime obscures contributory infringement's actual origins. Despite its wrongness, and despite the efforts of people such as Bill Patry to remove it, it's got a lot of case law inertia behind it now. I expect "contributory liability as enterprise liability" to have a long life to come.

[Cross-posted on the Marquette Law Faculty Blog.]

Posted by Bruce Boyden on February 15, 2011 at 11:59 AM in Intellectual Property, Judicial Process | Permalink | Comments (5) | TrackBack

Tuesday, December 07, 2010

The Supreme Court's World War II Channel

This month I'll be blogging at least once about a symposium piece I've written examining rules and standards in three recent First Amendment cases: Citizens United, US v. Stevens and Holder v. Humanitarian Law Project (HLP).  But for now I'd like to share an interesting tidbit that I found when reading Citizens United and HLP.  As everyone knows, in Citizens United Justice Stevens took issue with the majority's "glittering generality" that the First Amendment does not allow identity-based restrictions on political speech.  As part of his analysis, he pointed to Tokyo Rose, the (apparently generic) name for English-language Japanese propaganda announcers during World War II, rhetorically suggesting that the majority's analysis would presumably have frowned on restrictions on "her" right to speak based on "her" identity.

Interestingly, a few months later in HLP Chief Justice Roberts also referred to Imperial Japan.  He mocked the dissent's argument that the speech restrictions at issue should be reviewed more stringently because the restricted speech consisted of helping terrorist groups utilize peaceful means of dispute resolution.  He speculated that under the dissent's analysis the Court would have had to allow analogous assistance to the Imperial Japanese government during World War II.

Coincidence?  Maybe.  But a very quick search reveals no similar analogies in Court opinions over the past five years.  It's also probably relevant (or at least "not irrelevant," as we cautious folk like to say) that in HLP Justice Stevens deserted his Citizens United co-dissenters and joined Chief Justice Roberts' majority.   This is not to say that Justice Stevens was enticed to join the majority in HLP by an analogy to events that he alone on the Court was old enough to have experienced as an adult.  But if Chief Justice Roberts in HLP was going to abandon rigid First Amendment rules and point to some alleged absurdity in applying those rules in that case, he could have done a lot worse, in terms of attracting at least some support from the liberal bloc, than to use the same World War II-era hypothetical Justice Stevens used in Citizens United.  I'll soon be blogging about the merits of the Chief's analysis in HLP, but for now this is one of those nuggets that potentially reveal the human motivations behind the drafting choices the Justices make.

Posted by Bill Araiza on December 7, 2010 at 07:00 AM in Article Spotlight, Constitutional thoughts, First Amendment, Judicial Process | Permalink | Comments (0) | TrackBack

Wednesday, December 01, 2010

Seeking thoughts about the SCOTUS docket in the CJ Roberts era

With thanks to Dan and the other permanent members of the Prawfs family, I am so very pleased to have a guest stint here in order to discuss topics beyond the sentencing issues that are my obsession on my blog.   Though I suspect sports and the holiday season may be the subject of some future posts, I am especially eager to use my guest stint to generate discussion in the PrawfsBlawg universe about the federal judiciary and especially about (1) the first 5 years of the Roberts Court, and (2) the early work of Obama judges.

As the title of this post reveals, I want to start by seeking thoughts about the size and nature of the Supreme Court docket during the early Roberts era.  I recall the Chief Justice during his 2005 confirmation hearing suggest that the Court's docket had shrunk a bit too much during the prior decade.   But, as this chart from SCOTUSblog reveals, the number of SCOTUS decisions over the last five years has been largely in line with the prior five.   Though I doubt there is a perfect size for the SCOTUS docket, I do feel that it might benefit the work of the Court if it took more cases (and then perhaps wrote less when resolving some them).

Even more important than the number of cases, of course, is the type and posture of the cases that SCOTUS takes up.  In this arena, I feel and fear that the Justices continue to worry too much about resolving circuit splits and not quite enough about issues that could benefit from greater jurisprudential clarity.  But my opinion here is likely colored by my sentencing obsessions and the many cert petitions I see coming from federal criminal defendants raising issues that have not produced a crisp split but that, in my view, merit SCOTUS attention.

In future posts on this topic, I may explore in greater detail some of the developments in the criminal justice  side of the SCOTUS docket that I have noticed in the Roberts era.  For now, though, I would like to hear what others think about these modern SCOTUS docket matters.

Posted by Douglas A. Berman on December 1, 2010 at 07:59 PM in Judicial Process | Permalink | Comments (2) | TrackBack

Thursday, August 26, 2010

What Can You Accomplish as a Lawyer? Renowned Lawyer and Legal Scholar Bruce Winick Has Died

I've just received the sad news that my friend and former colleague Bruce Winick, distinguished professor of Law & Medicine at the University of Miami School of Law for some 36 years has died.  Bruce will be most remembered as the co-founder, along with David Wexler of the University of Arizona, James E. Rogers School of Law, of the extraordinary scholarly and law reform enterprise known as Therapeutic Jurisprudence. TJ to its many friends, is the scholary study of how law and legal procedures influence the psychology of those who are subject to it (or practice in it), as well as the law reform project of altering the law to optimize its psychological advantages and minimize its psychological disadvantages.  TJ had its intellectual problems.  As Elyn Saks argued some years ago, there are all too many circumstances when the psychological consequences of legal choices are cross cutting (as for instance in forcibly medicating a person suffering severe psychosis).  Still, one would be hard pressed to name a body of academic legal scholarship that has had more law reform significance in the past quarter century.  Scores of drug courts, mental health courts, and other "problem solving" courts of all kinds in the US, Europe, Australia and elsewhere no doubt, trace their intellectual DNA to TJ.  In an era when criminal law in the US has been dominated by a widespread surrender to populist punitiveness, TJ was practically the only significant counter force in law reform.

Amazingly, Bruce came to TJ well into his career,  after years of impressive legal accomplishments including overturning New York's death penalty in the late 1960s, litigating many of the most influential selective service cases in the Vietnam era, and joining with Miami colleagues Irwin Stotzky and Ira Kurzban in litigating the Haitian refugee cases before the Supreme Court in the early 1980s.  Bruce was the author of more than ten books and scores of law review articles, mostly in the last decade and half during which he was functionally blind.

More than anything I will remember Bruce's sheer joy at being a lawyer and a law professor.  Oblivious to the slings and arrows that puncture most egos, Bruce was simply carried away by a sense of the enormous privilege it was to argue before courts on behalf of clients, to teach law and medical students, and to share his ideas though his prodigious ability as a writer and speaker.  In this latter aspect, Bruce will be with us for decades to come.  Just today, well before I heard the news, I was reading several of his articles on TJ and civil commitment (also the subject of 2005 book) for some of my own research on reforming California's civil commitment law. 

Posted by Jonathan Simon on August 26, 2010 at 03:51 PM in Criminal Law, Jonathan Simon, Judicial Process, Legal Theory | Permalink | Comments (2) | TrackBack

Wednesday, July 28, 2010

The Huge, Obvious Problem with the Law

There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it's not there. It's so large as to be beyond overwhelming.

The problem is this: Our system of justice is absurdly complex and time consuming.

A mighty swamp is our law.
(Image: Nat'l Park Service)

I know - it's not news. But that's the rub. The shadow cast by this cloud is so vast that our eyes adjust to the darkness. Several aspects of the Big Problem are shocking to 1Ls and stub-year associates. But eventually, we all become desensitized. Nonetheless, the legal profession ought to take a hard look at the ugliness. If we cared to do something about it, I think we could.

There are three basic aspects to the mess: Endeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive.

Why is this so? The basic features of our courts, our procedural law, and our means of recording and organizing substantive law were designed in an era of quill and parchment. And the biggest changes since then arose in an era of typewriters - before there were photocopiers, even. Since that time, an explosion in population, technology, and wealth has overwhelmed the law's operating system. It's like trying to run new, bulky software on a really old computer. It's slow as heck.

To appreciate the absurdity of the burden we've imposed upon ourselves, it's helpful to get some context. Let's compare civil litigation to health care. A medical problem costs nearly the same amount to treat for a rich person as it does for a poor person. Sure, there are always more tests you can run, wallet willing. But in health care, the key variable is the disease.

That's not true at all for civil litigation. The key variable in a lawsuit is the amount of money at stake. The exact same ambiguous contractual language could cost mere hundreds of dollars to litigate or well into the tens of millions. If you think about it, that's crazy. The cost of a civil dispute scales directly with the dollar amount on the line. That's why plaintiffs' lawyers can sensibly charge straight percentages of a contingent recovery. The mathematical relation is bankably certain.

Sadly, to the extent anyone has tried a real game-changer here, it has been binding arbitration. Instead of trying to fix our courts, whole sectors of industry are just doing without. And that turns out to be very undesirable for a lot of reasons - at least in my opinion, and I know many agree. With arbitration, particularly when it comes to consumers, convenience is often obtained at the price of fairness.

For all the codes and rules and hortatory language of “professional responsibility,” our profession ought to take responsibility for the law as a whole - and the mighty swamp we've made of it.

Posted by Eric E. Johnson on July 28, 2010 at 06:18 PM in Civil Procedure, Judicial Process, Torts | Permalink | Comments (7) | TrackBack

Tuesday, July 20, 2010

Should U.S. Attorneys Have Offices in Courthouses?

The Spring Street Courthouse in Los Angeles, which houses the offices of the U.S. Attorney for California's Central District and the chambers and courtrooms of more than a dozen federal judges.

In many places around the country, the United States Attorney's office is in the same building as the federal courts. I've never liked this arrangement. Sure, it's convenient. And it probably saves the taxpayers money in many cases. But in a field where much is said about "avoiding even the appearance of impropriety," it is unseemly, I think, to have the government's advocates down the hall from the judges.

In a court case, "the government" always refers to one party on one side of the v. "The government" is not inclusive of the court, the judge, and the clerks. So why put them under the same roof?

Of course, I personally am not worried about our third branch being able to maintain its integrity despite being roommates with the U.S. Attorney's office. But I'm a law professor. I know a few federal judges, a few federal prosecutors, and a slew of ex-clerks. Whether I am worried is irrelevant. The question is, do these office arrangements cause any regular people on the street to have some inkling of doubt about the independence of the judiciary? I think the answer is, of course they must.

We seem to agree that appearances matter when it comes to the courts. Judges wear robes. Courtrooms look grand and dignified. There is copious use of granite and marble. And on and on. It just seems like the right thing to do is to have all attorneys and litigants walk through the same doors.

Posted by Eric E. Johnson on July 20, 2010 at 06:30 PM in Judicial Process | Permalink | Comments (2) | TrackBack

Wednesday, July 14, 2010

The Rule of Law Trampled on the Red Carpet

Director Roman Polanski in France on the set of the 1979 film Tess, following his arrest and flight from U.S. authorities. (Promotional photo from Columbia Pictures)

Roman Polanski has just been freed by Swiss authorities who were detaining him under house arrest. Switzerland decided against extraditing Polanski to California, where the Oscar-winning film director has been wanted since 1978 after he drugged, raped, and sodomized a 13-year-old girl.

Several pundits and a slew of Hollywood glitterati who are friends or wannabe-friends of Polanski have decried his arrest and continuing status as a fugitive.

They point out mitigating circumstances: Polanski lived through the Holocaust, with his father surviving Mauthausen and his mother perishing in Auschwitz. Then in 1969, Polanski's pregnant wife, Sharon Tate, was murdered by Charles Manson's followers.

Does Polanski's tragedy-filled life mean we should show him leniency? I don't think so. I think he should spend the rest of his life in prison. But that's not my point here. What saddens me is the contemptuous regard for the rule of law that's been put on display by this debacle.

Arguing for clemency for Polanski is, in my opinion, deeply wrongheaded. But such a position is not beyond all bounds of decency. What is outrageous – actually morally bankrupt – is for people to defend Polanski yet not speak up on behalf of other sexual predators.

It is common that violent and sexual offenders have suffered abuse in their pasts. Many offenders endured lives of utter horror and ceaseless despair before committing the crimes that put them behind bars. If Polanski deserves empathy, why not them? Where are the throngs of adoring celebrities – who gave the absent Polanski a standing ovation at the 2003 Academy Awards – to advocate for pedophile rapists who are poor, unsuccessful, and bereft of artistic talent or handsome charm? 

Our courthouse statuary upholds blind justice as the ultimate virtue. But oh-so many people do not. For the blithe cowards stumping for Polanski, it is natural and right-feeling to balance the scales of justice with eyes wide open. And that's a deep shame.

Posted by Eric E. Johnson on July 14, 2010 at 05:56 PM in Criminal Law, Current Affairs, Film, International Law, Judicial Process | Permalink | Comments (3) | TrackBack

Monday, June 21, 2010

Today's arbitration decision in Rent-A-Center v. Jackson

Hello, Prawfs readers. I guest-blogged here a couple months ago and wrote about Rent-a-Center v. Jackson. The case concerns who - court or arbitrator - decides an unconscionability challenge to certain aspects of an arbitration agreement, where the arbitration agreement itself purports to assign the decision to the arbitrator. Permablogger Matt Bodie has also been following the case, and he invited me to do a one-off return engagement now that the case has been decided. (For those who want to view the previous posts from a couple months back, my original post is here, and Matt's comments on the oral argument are here.)

Matt will be posting his own thoughts later today, either in comments here or in his own post. Check back for them, as I'm sure they'll be insightful.

Let me state at the outset that this is an early, tentative response rather than a polished, fully deliberated one. And I'm not trying to address every issue in the case. That being said, here are four thoughts in reaction to Rent-A-Center v. Jackson.

1. On the opinion’s logic. The opinion essentially takes the logic of the Prima Paint separability rule and pushes it one step further. In the usual separability scenario, we have an arbitration clause embedded in a container contract (which is a contract for consumer services, employment, whatever). In that kind of case, separability tells us that challenges that would invalidate the arbitration clause go to the court but that challenges to the contract as a whole go to the arbitrator. The two agreements are regarded as distinct, even though they are in the same document. In Rent-a-Center, the two agreements we are separating are 1) the agreement to arbitrate employment disputes, and 2) the agreement to arbitrate disputes over the enforceability of agreement #1. Again, they are on the same piece of paper, but that doesn’t really matter for Prima Paint. (The agreements logically could be separate documents, signed at different times.) The Court’s opinion tells us that challenges to agreement #2 would be for a court to decide. But the opinion reads Jackson’s complaints as not going to agreement #2. Because agreement #2 is valid, Jackson has agreed to let the arbitrator decide his complaints about agreement #1.

Whether or not one likes this result as a matter of policy (I’ve noted I would like to see major congressional action to take some categories of disputes out of the regime of binding pre-dispute arbitration), this result represents one logically reasonable interpretation of the precedents. Now, that probably sounds like damning by faint praise, and maybe it is, but many people have argued that it is somehow incoherent or illogical to permit the arbitrator to rule on any kind of unconscionability challenge to an arbitration agreement. It’s not, provided there is a valid agreement #2 in place. Again, whether this the all-things-considered best way to handle the important policy phenomenon of adhesive arbitration agreements is a different matter.

2. On the opinion’s breadth. As stated, the Court says that Jackson’s complaints went to the fairness of the arbitration clause in general, not to the agreement to delegate disputes over enforceability to the arbitrator (#2) in particular. The fact that Justice Scalia’s majority opinion lingers over what exactly Jackson was complaining about in his various filings might lead one to think that things could have come out the other way if only Jackson had phrased things a bit differently. That would reduce the case to a lesson in artful pleading. I don’t think such a reading of the case is correct. As Scalia notes at p. 10, it would be pretty hard to cast Jackson’s complaints as good complaints against agreement #2 in particular. Take discovery. If Jackson can’t get any discovery, that could make it very hard to win his employment discrimination claim, which might show there is a problem with agreement #1. But it is harder to say that lack of discovery makes agreement #2 unconscionable. All that being said, it seems there would be some arguments that would attack #2 in particular. As I’ve stated in previous posts and comments, this could include things like arbitrator bias, which can’t be separated out under Prima Paint.

3. The newly partisan nature of arbitration. It wasn’t always the case that these cases split 5-4 along the usual political lines. Indeed, people like Justice Brennan wrote some of the early pro-arbitration opinions. Stolt-Nielsen and this case show the breakdown of the old coalition. This seems important.

4. What does this mean for AT&T v. Concepcion? The Supreme Court recently granted cert. to decide whether a ruling invalidating an arbitration clause on unconscionability grounds is preempted by the FAA. (The preemption inquiry essentially turns on whether the lower court is discriminating against arbitration by applying a more searching unconscionability analysis than usual.) AT&T v. Concepcion is going to be a very hard case to decide in a responsible way. The Court is ill-equipped to resolve whether a lower court is discriminating against arbitration. First, unconscionability analysis often requires a fact-intensive inquiry. Second, and more important, determining whether a lower court is using unconscionability differently when it comes to arbitration requires an engagement with the details of state law and a comparison of lots of prior unconscionability cases. Third, and maybe most important of all, a holding that the lower court is applying unconscionability unfairly, especially when the lower court says it is applying the same analysis it applies elsewhere, is tantamount to accusing the lower court of dishonesty. Rent-a-Center assigns more of these unconscionability decisions to arbitrators. That makes cases like Concepcion much less important going forward: it doesn’t matter whether courts are getting unconscionability right or wrong, because the courts won’t be making the decisions. This is a good reason to DIG in Concepcion.

Posted by Aaron Bruhl on June 21, 2010 at 04:52 PM in Civil Procedure, Judicial Process | Permalink | Comments (4) | TrackBack

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 | Comments (6) | TrackBack

Wednesday, May 12, 2010

Judicial Neutrality

I’m a little late to the judicial neutrality party, having locked myself out of the Internet yesterday afternoon to get some grading done, but thought I might still weigh in on the Solum/Solove/Horwitz/DeGirolami discussion.  One of the aspects of that discussion that seems worth highlighting is the distinction between the descriptive and normative aspects of the interaction between ideology (or non-legal factors more broadly) and judicial decision making.  

Starting with the descriptive aspect – how do judges act – I take it that everyone agrees with the proposition that, no matter how judges conceive of or attempt to go about their role, they will be influenced by non-legal factors.  The disagreement concerns just how strong this influence is.  And in fleshing the matter out further it seems that we ought to recognize that the extent to which law constrains judicial behavior (in the sense of limiting the operation of non-legal factors) will vary along with at least a couple of factors. One is the level of the judiciary we’re talking about.  At least with respect to questions of law, lower court judges are much more constrained than higher court judges, both as a product of institutional structure and (particularly in courts with discretionary jurisdiction) the nature of the questions typically before them.  We may all agree with the proposition that it is impossible for judges to act as neutrals, and I think it’s also important to recognize that what it means for a judge to act neutrally differs depending on the type of judge.  Of course, the discussion here was sparked by the Kagan nomination, and thus involves the sort of judge who is least constrained.
Another factor is individual differences between judges.  Even if all judges subjectively were to view themselves as equally constrained by, and acting pursuant to, law, I’m confident we would (were we able to measure it) find differences in the extent to which their decisions were in fact bound by law.  Put differently, even members of a set of judges committed to, say, some rigid version of formalism would come to different resolutions given some non-easy case.  I think we’d see non-legal influences operating more strongly on some of these judges than others. And this is so even though, subjectively, each judge would perceive herself as acting in rigid compliance with law.  People are very good at believing that they are not acting in ways that are biased, unfair, and so forth.  Yet we all know people who seem able to conjure up a post hoc justification for whatever course of conduct happened to suit them, and others who agonize over such things. We don’t need to posit that judges are intentionally acting in the instrumentalist ways that the attitudinal model of judging suggests in order to have a world in which at least some judges engage in decision making that appears to take substantial advantage of the underdeterminacy of legal standards.
Descriptively, then, we have a world of underdeterminacy, in which non-legal factors have room to operate, and in which types of judges and individual judges vary in terms of their susceptibility to these influences.  Add to this the concern – which seems to underlie much of Larry’s discussion – about the possibility of this phenomenon feeding back on itself.  Such feedback could occur in that open recognition of the inevitable influence of non-legal factors may seem to legitimize less formalist (though perhaps Posner’s term “legalist” fits better here) approaches to judging, thereby leading to even less constraint.
The normative dimension – how should judges act – involves opening an even bigger can of worms. The range of prescriptions extends (at least) from the Scalian “rule of law as the law of rules” to a world in which judges have license simply to see that justice is done in each case. There are arguments to be made for and against each of these approaches, including the fact that none of them can assure us that judicial behavior will operate uninfluenced by factors that are deemed improper by any given approach.  Judges of course take differing positions on the normative questions about their role, which in turn adds to the individual variance discussed above.
Where does this leave us?  I think it leaves us in a world in which, wherever any of us comes out on the normative issues, we have to acknowledge and account for judges who do not act in accordance with our own conceptions of how judges should act.  One might think the Scalias have it right, but one must still acknowledge the existence of the Warrens, or vice-versa.  For my part, because I am mindful of the existence of judges who, whether intentionally or otherwise, take advantage of underdeterminacy, I think it important to focus on creating institutional structures and processes that foster a regime in which judges are led naturally to be transparent about the factors that are driving their decisions.  Some of these can be relatively concrete, such as requirements relating to opinion production and formatting and other aspects of court processes.  But some of it is more diffuse, as is much of what works to channel judicial behavior.  Here I am thinking of things in the nature of the “situation sense” and norms of professional socialization that Karl Llewellyn focused on a half-century ago.  When it comes to Supreme Court nominations, although I find confirmation hearings nearly unwatchable and the whole spectacle of the larger debate that breaks out in the wake of a nomination to be somewhere in the vicinity of excruciating, perhaps there is some value to it as a sort of final imprinting of the nominee.


Posted by Chad Oldfather on May 12, 2010 at 12:02 PM in Judicial Process, Law and Politics | Permalink | Comments (0) | TrackBack

Wednesday, May 05, 2010

Judicial Process Course Materials - Version 2

It’s good to be back at Prawfs just in time for another Supreme Court nomination, which is sure to generate all manner of discussion over the proper nature of the judicial role.  In order that I might get the blatantly self-promotional portion of my stint out of the way early, allow me to suggest that I have just the thing for those about to participate in those discussions.  That’s right: a new, expanded, and improved (Now with Table of Contents!) version of the Judicial Process course materials that made their debut in this very spot back in November 2008.  Get yours here.

As was the case with the initial set of materials, there remains much for me to add.  Still, I hope that this version will be useful to those looking to teach or do research in the area.  I welcome all suggestions for improvement, including by those who wish to recommend their own work for inclusion.

Posted by Chad Oldfather on May 5, 2010 at 03:38 PM in Judicial Process | Permalink | Comments (2) | TrackBack

Wednesday, April 28, 2010

"Formation is a very basic existential analysis": Thoughts on the Rent-a-Center Oral Argument

Those who are interested in contract law, arbitration, labor & employment law, and federal courts should check out the oral argument for Rent-A-Center, West v. Jackson.  The quote above is from Robert Friedman, counsel for Rent-A-Center, and as a Contracts professor I enjoyed the sentiment.  But ultimately Rent-A-Center's argument hinges on a effort to separate unconscionability into two different categories -- a separation that has no basis in common law or statute.

The question before the Court is "Is the district court required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act (FAA) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this 'gateway' issue to the arbitrator for decision?"  The case involves a Sec. 1981 racial discrimination claim brought by employee Antonio Jackson against Rent-A-Center.  Jackson signed an arbitration agreement which stated:

The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.

In the opinion below, the Ninth Circuit held that courts must decide whether the agreement to arbitrate is unconscionable as a threshold matter, regardless of what the agreement itself says.

In his argument, Friedman conceded -- indeed, he had to concede -- that if an arbitration clause was fraudulently induced, it cannot force the defrauded party into arbitrating whether there was fraud.  He also conceded that some cases of duress -- namely, "a gun to somebody's head" -- would not go to the arbitrator.  What Friedman was trying to distinguish was cases in which no contract was formed (due to fraud or duress) and cases in which there is a contract but it needs reformation in some way.  Some on the court seemed sympathetic to this, looking to draw a line perhaps between "total" and "partial" unconscionability.  As Chief Justice Roberts put it, "[O]nce you get past that [g]ateway question of whether the formation of the contract was not unconscionable, then claims that particular provisions were unconscionable are by definition for the arbitrator to decide."

The First Circuit suggested something along these lines in Awuah v. Coverall N. Am., Inc., 554 F.3d 7 (1st Cir. 2009).  In that case, the First Circuit said that a court could refuse to enforce an arbitration agreement if it were "impossibly burdensome" or provided only "illusory" relief.  But the common law of unconscionability makes no such distinctions between "illusory" contracts and "non-illusory but unconscionable" contracts.  All unconscionable agreements are subject to judicial reform.  And it would make no sense to say that an agreement to arbitrate is possibly unconscionable, but the arbitrator -- whose power derives solely from that possibly unconscionable agreement -- gets to decide whether it is unconscionable and, if so, what the remedy shall be.  As Ian Silverberg, counsel for Jackson, pointed out, Rent-A-Center wants "a rule where certain unconscionability challenges went to the court and other unconscionability challenges didn't go to the court."  There's no basis for this in the FAA.

The Supreme Court has a legitimate concern that some state courts have been pushing the bounds of unconscionability with respect to arbitration agreements. Justice Ginsburg, in particular, seemed to think that the agreement at issue was not all that unconscionable.  But that's the bed the Court made for itself in Gilmer.  Once it said: (a) litigants can agree to arbitrate statutory rights prior to the dispute, but (b) they cannot waive those rights and (c) normal contractual remedies apply, a result like the one in Rent-A-Center was in play.  The Court itself has said: “Of course, courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds ‘for the revocation of any contract.’ ” Mitsubishi, 473 U.S. at 627 (quoting FAA Sec. 2).  The Ninth Circuit has to be upheld, I believe, unless the Court is going to start mucking around in state common law.  It could make the argument that the Ninth Circuit is disingenuously applying unconscionability law here.  But that's not the question presented.  I don't see any way to give the arbitrator the ability to decide the legitimacy of the agreement to arbitrate itself.

Justice Breyer, author of First Options, summed it up this way:

[First Options says that] unless it's clear and unmistakable that they wanted this matter [--] the matter of whether the arbitration clause itself is unconscionable [--] referred to the arbitrator, whether or not they wanted that referred to the arbitrator has to be clear and unmistakable. And they are claiming no, because . . . the provision that says that is itself a product of unconscionability. . . . [W]hy isn't that the simplest, most direct and four-sentence ground for deciding this case?

If you haven't done so already, check out this great preview post by Aaron Bruhl.  I hope Aaron will weigh in with his thoughts on the argument.

Posted by Matt Bodie on April 28, 2010 at 11:11 AM in Civil Procedure, Employment and Labor Law, Judicial Process, Workplace Law | Permalink | Comments (6) | TrackBack

Friday, April 16, 2010

Oman on judges and umpires

Nate Oman has a great post at CoOp defending Chief Justice Roberts' judges-as-umpires analogy, which is back on the blogs and op-ed pages with the coming Supreme Court appointment and a recent Times op-ed by Geoff Stone. Nate defends the analogy by arguing that Roberts was not proposing an account of law or judicial decisionmaking, but rather a theory of judicial virtue. A virtuous judge, like a virtuous umpire, fairly applies the law (even if we disagree about what the law is or how it applies), with distance from the outcome in favor of allegiance to the law. This precipitated a great exchange in the comments among Nate, Norman Williams, and TJ; the whole thing is worth a read.

I disagree with Nate on several points. First, I do believe Roberts was attempting to propose a normative account of law, not just of judicial virtue. Second, Roberts' intent is somewhat irrelevant because the bigger problem is that the umpire analogy has been seized on by everyone else (notably Senate Republicans and some conservative advocates) as a vision of law and judicial decisionmaking to which every judicial nominee now must pay fealty. This may not be Roberts' fault (assuming Nate is right that Roberts is being misconstrued), but it does require that we debunk the umpire analogy as it proposes a theory of law. Third, agreeing with a point Norman makes in the comments, the analogy does not work even as a theory of judicial virtue because it is so thin as to do no work. No one believes that a judge should care who wins a case and that a judge's role is to decide whether something is unlawful (a ball) or lawful (a strike); we do not need the umpire analogy to tell us that. Which brings us back to my first point--if the analogy does nothing to illustrate virtue, the context suggests Roberts was making a different, more substantive point.

Finally, this gives me an excuse to publicize a roundtable discussion at Law & Society next month, titled Judges as Umpires, Umpires as Judges: Rethinking the Metaphor. The panel consists of Mark Graber (Maryland), Neil Siegel (Duke), Mitch Berman (Texas), Aaron Zelinksky (about to graduate Yale), journalist Bruce Weber, and myself. For those of you up first thing in the morning on the first day of the program (Thursday), it should be an interesting discussion.

Posted by Howard Wasserman on April 16, 2010 at 08:00 AM in Current Affairs, Howard Wasserman, Judicial Process, Sports | Permalink | Comments (1) | TrackBack

Monday, March 01, 2010

Solicitor General confessions of error

It has been a pleasure guest-blogging here for the past month.  I thank Dan and the other perma-Prawfs for inviting me.  And thank you, readers, for your thoughtful comments.  I had thought that my previous post, on "controversial GVRs," would be my last one.  But today the Supreme Court has issued some more unusual GVRs, so I can't help myself from posting one last item.  In particular, I wanted to point out that today four Justices (the Chief, Scalia, Thomas, and Alito) dissented from the GVR in Machado v. Holder, which was triggered by the Solicitor General's confession of error.

Now, SG confessions of error aren't that unusual.  Most years there are a handful of cases in which the Supreme Court GVRs in light of the government's statement that the lower court erred.  Often the reason the lower court erred is because it accepted an argument that the government advanced below but that the SG (now) thinks is wrong.  (Of course, confessions of error come up in contexts besides the SG's responses to petitions for certiorari; I'm just focusing on that context.)  The way the Court has handled these circumstances has changed over the course of several decades, and some of the Justices are not happy about it.  Here is a brief account of the history:

At one time, the Court’s usual practice was to conduct its own independent review of the record in order to satisfy itself that the judgment was indeed erroneous.  Then it would order an appropriate disposition, such as a new trial.  See, e.g., Penner v. United States, 399 U.S. 522, 522 (1970) (vacating and remanding with instructions to dismiss the indictment “[o]n the basis of a confession of error by the Solicitor General and of an independent review of the record”); Baxa v. United States, 381 U.S. 353, 353 (1965) (vacating and remanding for new trial “[o]n consideration of the confession of error by the Solicitor General and upon examination of the entire record”).  For the last few decades, however, the Court has instead GVR’d so that the court below can consider the confession of error and what (if anything) to do about it.  There was some opposition to this switch.  See Mariscal v. United States, 449 U.S. 405, 407 (1981) (Rehnquist, J., dissenting).  But all members of the Court now appear either comfortable with or at least resigned to the practice of GVR’ing when the government concedes error in the bottom-line judgment. See Lawrence v. Chater, 516 U.S. 163, 183 (1996) (Scalia, J., dissenting) (objecting to the practice but recognizing that it “is by now well entrenched”). 

More controversial is the Court’s more recent practice of GVR’ing in cases where the government does not admit error in the judgment but instead only in the reasoning below.  Several Justices complained when that started to happen.  See Alvarado v. United States, 497 U.S. 543, 545 (1990) (Rehnquist, C.J., joined by O’Connor, Scalia, and Kennedy, JJ., dissenting).  Chief Justice Roberts previously indicated his agreement with that complaint, joining Justices Scalia and Thomas in a 2008 dissent.  Today’s GVR was another case in which the SG did not concede that the judgment was wrong.  Justice Alito joined the dissent, signaling that he too objects to the practice.  (Or, at least, that he objects in this case, which included an additional wrinkle concerning whether the petitioner had properly preserved error.)  But notably, Justice Kennedy appears to have reconciled himself to this practice; he did not dissent today, for instance, when he would have been the decisive vote against a GVR.

A more fully cited version of this history is available here.


Posted by Aaron Bruhl on March 1, 2010 at 01:26 PM in Civil Procedure, Judicial Process | Permalink | Comments (0) | TrackBack

Thursday, February 25, 2010

Controversial GVRs and the "degradation" of the GVR

The Supreme Court's GVR practice has traditionally been a sleepy backwater of appellate procedure.  The GVR (i.e., grant, vacate, remand) is most commonly used when a lower court decision might be affected by a recent Supreme Court case that came down after the lower court ruled (though there are other types too).  Over the course of the last few years, there have been several controversial GVRs that have raised the device's profile a bit.  Generally these have been cases in which some Justices, usually led by Justice Scalia, dissent from the GVR and charge that the Court is improperly expanding the GVR power.  In effect, the dissenters say, the GVR is becoming, in different cases, either a way to make the lower court write a better opinion or a lazy substitute for a summary reversal.  These cases reflect, in Scalia's words, "the systematic degradation of [the] traditional requirements for a GVR." 

To list some of these cases:

- In Wellons v. Hall(2010), the Chief, Scalia, Thomas, and Alito all dissented, arguing that the new development that supposedly necessitated the GVR could not affect the lower court judgment, which (they argued) rested on a separately adequate foundation.

- In Webster v. Cooper (2009), the Court GVR'd in light of a decision that pre-dated the lower court's ruling and that the petitioner did not raise before the lower court.  Scalia dissents.

- In Youngblood v. West Virginia (2006), the Court GVR'd in light of a decades-old case that the lower court did not discuss in its opinion, though it was presented to the lower court.  The Supreme Court said that "if this Court is to reach the merits of the case, it would be better" to have the lower court's views on the matter.  Scalia, joined by Thomas, said this was a not-so-veiled threat that the lower court had better reconsider or the Court will have to go to the trouble of reversing.  Kennedy separately dissents.

Justice Scalia's complaint about the alleged expansion of the GVR is three-pronged: formal, historical, and prudential.  He is certainly correct that these are not ordinary GVRs and that they raise some concerns.  Nonetheless, here I will register some doubts about his criticisms, though all of this is necessarily tentative and brief.

Regarding the formal issue, he says that the Court has the power to set aside judgments for error, not to void them on suspicion of error or send them back because the opinions are incomplete.  That sounds right in the abstract.  Yet the Court's practices display some flexibility.  The Court often doesn't end a case with its judgment; it might only be reversing on one ground out of several that, on remand, might lead to the reinstatement of the prior judgment.  It sometimes vacates decisions that use the wrong standard without itself saying how the case should come out under the correct standard.  And of course even the run-of-the-mill GVR vacates a judgment without any finding of error.  So once you are doing all of that, the formal arguments get hard to maintain.

On the historical front, the charges of "degradation" of tradition, the attempt to rein in a wooly area of practice, and the more general declinist spirit are pure Scalia.  I can't go into detail in a blog post, but, based on my study of GVRs, it seems to me that the history is somewhat more complicated.  It might be that today's very standardized GVR practice - in which 98% of GVRs are run-of-the-mill vacaturs in light of a new precedent - doesn't reflect the way things always were.  The device might have been more multifarious in the past.

This brings us to the prudential arguments.  Is this a good thing for the Court to be doing?  A good use of its time?  A proper way to treat lower courts?  Here I will just say that I am not sure.

Posted by Aaron Bruhl on February 25, 2010 at 04:45 PM in Civil Procedure, Judicial Process | Permalink | Comments (0) | TrackBack

Monday, February 22, 2010

Allocating power between courts and arbitrators - and why scholars of federal courts should care

The Federal Arbitration Act makes arbitration agreements as enforceable as all other contracts.  In April, the Supreme Court will hear argument in Rent-A-Center v. Jackson, which concerns the question of who - court or arbitrator - decides a claim that an arbitration agreement is unconscionable and thus unenforceable.  In this case, the arbitration agreement itself assigns (or at least purports to assign) that power to the arbitrator.  The Ninth Circuit, however, held that unconscionability was an issue for the court.  This case holds obvious interest for those who study ADR, consumer law (most consumer contracts have arbitration clauses, whether or not you know it), and employment law (this case is an employment discrimination suit).  What I hope to show you is that it is just as interesting for those who study federal courts and judicial politics.  Beneath the surface, the case is, in a sense, more Bush v. Gore than Williams v. Walker-Thomas Furniture.

To see why the case is so intriguing, one has to appreciate what one might call its strategic context.  The Supreme Court is strongly pro-arbitration.  Some state and federal courts are not quite so enthusiastic, at least when it comes to consumer and employment contexts with their largely adhesionary contracts.  (Please note that I'm not discussing whether the Court's decisions in this area, and its broader pro-arbitration stance, reflect sound interpretations of the relevant statute, good policy, etc.)  Over the course of the last couple of decades the Supreme Court has shut off most avenues for challenging arbitration agreements at the wholesale level - state law cannot declare particular fields like consumer transactions off limits from arbitration, courts cannot deem arbitration per se violative of public policy, etc.  All such arguments are preempted by the Federal Arbitration Act.  What remains, though, is the possibility for retail-level challenges to particular arbitration clauses under section 2 of the Act, which allows ordinary contract defenses that would invalidate any contract.  So arbitration itself cannot be questioned, but a particular arbitration clause might be invalidated as the product of duress, fraud, etc. 

In the last few years, as other routes for challenging arbitration have been closed off, unconscionability has become a surprisingly common and surprisingly effective way of attacking arbitration agreements.  The challenges do not attack arbitration per se - federal law favors arbitration - but instead target various aspects of a particular arbitration process: a given clause might forbid class arbitrations, bar punitive damages or otherwise restrict remedies, sharply curtail discovery, require a consumer to pay hefty arbitrator's fees, etc.  There have been many cases on these topics in recent years, and a good number of them sustain the challenge to the arbitration clause.

These cases have generated lots of petitions for certiorari in which businesses, assisted by amici like the Chamber of Commerce, charge that some state courts and lower federal courts are using unconscionability to discriminate against arbitration in violation of federal law.  That is, while ordinary contract defenses can be used to invalidate an arbitration clause, those doctrines are not supposed to be used differently in the arbitration context in order to disadvantage arbitration.  Perhaps surprisingly, given its pro-arbitration stance, the Supreme Court has for years let these petitions go by.  My suspicion is that the Court has avoided these cases because it feels ill-equipped to resolve whether a lower court is discriminating against arbitration.  First, unconscionability analysis often requires a fact-intensive inquiry.  Second, and more important, determining whether a lower court is using unconscionability differently when it comes to arbitration requires an engagement with the details of state law and a comparison of lots of prior unconscionability cases.  Third, and maybe most important of all, a holding that the lower court is applying unconscionability unfairly, especially when the lower court says it is applying the same analysis it applies elsewhere, carries with it some serious expressive baggage.  Essentially, it requires the Supreme Court to say that the lower court is being dishonest.  That happens, but when it does so, it is a big deal (think cases like Bush v. Gore or the cases from the 50s/60s rejecting supposed procedural defaults in the state courts).

The nice thing about a case like Rent-A-Center v. Jackson, at least from the point of view of a pro-arbitration court, is that it concerns not the merits of an unconscionability challenge but instead the allocation question - a question of who decides.  That doesn't require diving into the weeds of state law and the record.  If the Court assigns the issue to the arbitrator, that will be a very easy rule to monitor for compliance (unlike deciding whether the lower court applied unconscionability correctly).  All of those unconscionability cases out there will instantly become not wrong but irrelevant - because courts won't be deciding the issue anymore.  And it won't matter whether some lower courts can be trusted to apply unconscionability correctly, because they will be cut out of the picture.

All of the analysis above suggests reasons why the Supreme Court would find it useful to assign unconscionability to the arbitrator.  On the other side, there are some reasons for it not to do that.  Notably, it might be that judicial review for unconscionability operates as a sort of safety valve that makes arbitration of consumer and employment disputes palatable.

If you find this line of argument compelling, or at least interesting, I explore it in an NYU Law Review article available here.  A much shorter and more accessible version is available here.

To this point I haven't said anything about the more narrowly doctrinal aspects of the case.  I think that, as with many cases that reach the Supreme Court, the conventionally authoritative legal materials leave enough room here that acceptable legal reasoning could get you to either result.  In brief (and this compressed summary probably won't make sense to non-specialists):  On Jackson's side, one might say, as the Ninth Circuit did, that the Prima Paint separability doctrine does not apply here because this is a challenge specifically to an agreement to arbitrate.  (Indeed, this was a stand-alone arbitration agreement, not a larger contract that included an arbitration clause.)  On the other side, I can imagine Rent-A-Center arguing that there is a separable agreement to arbitrate here.  After all, the agreement to arbitrate is not itself unconscionable - it can't be.  Rather, the problem is the limitations on remedies and so forth.  So one could imagine that there is an underlying theoretical agreement to arbitrate that remains uninfected, and then Jackson is supposed to go to arbitration to try to get the arbitrator to invalidate the offensive restrictions.  That would be slicing separability pretty thinly, of course.

Posted by Aaron Bruhl on February 22, 2010 at 09:23 AM in Civil Procedure, Judicial Process | Permalink | Comments (16) | TrackBack

Friday, February 19, 2010

Trivia from the Supreme Court order list

Anybody can read the Supreme Court's opinions, but the real nerds read the order list.  Here is an order from the Court's January 19, 2010 list:

Linton v. United States, No.09-7408 - The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.  The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of United States v. Booker, 543 U.S. 220 (2005).

Does anything about that seem strange?  Yes, you read it correctly, last month the Supreme Court issued a GVR (grant-vacate-remand) in light of a case decided five years ago.  Had the Fourth Circuit somehow not heard of Booker?  How could that be?  Answer below the fold . . .

The Court ordinarily uses its GVR power to direct lower courts to reconsider a case in light of a new development that followed the lower court's decision.  Although it wouldn't be unprecedented for the Court to issue a GVR in light of a case decided before the lower court ruled, especially where the lower court seemed unaware of the Supreme Court precedent, that isn't exactly what happened here. 

What happened is that Linton had previously appealed his conviction and sentence to the Fourth Circuit, the Fourth Circuit affirmed, and then Linton's appointed counsel failed to file a petition for certiorari when he or she was supposed to, which violated Linton's rights under the Criminal Justice Act.  All of that was years ago.  In the new litigation, Linton filed a 2255 motion for resentencing, which the Fourth Circuit construed as a motion to recall its earlier mandate.  The Fourth Circuit granted the motion, recalled the mandate, and entered a new judgment in July 2009, so that Linton could file a timely petition for certiorari.  And then he got a GVR.  Now we'll see what the Fourth Circuit does with it.  In a prior case that presented similar circumstances, the Fourth Circuit remanded to the district court for resentencing, but there's no guarantee that will happen here.

Posted by Aaron Bruhl on February 19, 2010 at 09:04 AM in Civil Procedure, Criminal Law, Judicial Process | Permalink | Comments (0) | TrackBack

Wednesday, February 17, 2010

When is finality . . . final?

At this Friday's conference, the Supreme Court is scheduled to consider a petition for rehearing in Melson v. Allen.  (SCOTUSblog posted an item on the case a couple of months ago, when the Court requested a response to the petition for rehearing.)  It is pretty rare that a petition for rehearing has any chance of going anywhere, but this one is worth watching because the Court at least thinks it is worth requesting a response.  The case involves an interesting problem of appellate procedure.

The basic facts, as I understand them, are these: Melson is a habeas petitioner.  The Eleventh Circuit denied his habeas petition as untimely.  He then petitioned for certiorari, which the Supreme Court denied on October 5, 2009.  Then, on October 13, the Supreme Court granted certiorari in Holland v. Florida, another Eleventh Circuit habeas case that raises a similar issue of timeliness.  Melson then filed a petition for rehearing of the denial of cert., and the Court requested a response from the state.  It is highly unlikely that the Court would grant Melson's case for plenary consideration; Melson's more reasonable hope is that the Court will now hold his case for Holland and then, if Holland comes out in a way that might help him, vacate the denial of certiorari and issue a GVR (grant, vacate, and remand for further consideration) in light of Holland.[fn*]

The reason I find this case interesting is because it implicates the question of when we decide that a case is over.  This gets very complicated because of the habeas context that is involved here, but to speak in more general terms, we usually treat a case as over when the Supreme Court denies certiorari. If the law changes before that, you might get a GVR instead of a denial of cert., but if the law changes after that, you don't.  (I'm simplifying a lot here; for example, one could try to reopen the case in the district court, etc., etc.)  In some ways it seems arbitrary to allow litigants' fate to turn on the difference between Monday and Tuesday, but it is hard to avoid that problem in any system with a cutoff date.  Further, granting relief here would create its own arbitrariness, because this isn't the sort of thing the Court can or would want to do in every case.  The Court wouldn't want to encourage lots of petitions for rehearing.  All of these factors favor denying rehearing.

Yet on the other side, there are considerations that support holding the case and later granting rehearing and GVR'ing if Holland comes out in the petitioner's favor.  The fact that the denial of cert. in Melson's case came so soon before the grant in Holland tends to heighten the sense of inequitable treatment.  This is a capital case, which raises the stakes further.  Plus, one can easily imagine a scenario in which the Melson petition was not denied on Oct. 5.  The Court often realizes that multiple pending petitions raise related issues and processes them in a coordinated way.  Perhaps that didn't happen here because the conference at which Holland was considered wasn't until Oct. 9; since the cases were on different timetables, maybe nobody inside the Court saw the possible connection.  (As should be obvious, this is all speculation.) 

In any case, there are reasons to go either way.  I would note that, in a relatively small number of instances in the past, the Court has vacated a denial of certiorari, granted rehearing, and GVR'd in light of a case decided after the denial of cert.  (See here at p. 48 n.162.)  One would expect the Court to be most willing to do that if it thinks that an imperfection in its own case-handling procedures led to a case not being held when it should have been, though I'm not sure that can explain all of the prior cases.  If the Supreme Court's upcoming orders list doesn't show a denial of rehearing in Melson, we might have another case to add to the list.

[* For those who aren't familiar with GVRs, the Court issues these couple-sentence orders all the time.  The most common situation in which they are used is when a new Supreme Court ruling casts doubt on a lower court case that was decided before the new precedent came down.  The GVR lets the lower court take another look at the case under the new law.]

Posted by Aaron Bruhl on February 17, 2010 at 03:18 PM in Civil Procedure, Criminal Law, Judicial Process | Permalink | Comments (2) | TrackBack