Monday, September 25, 2017

Corpus Linguistics Re-Redux

Since my last post on Corpus Linguistics two weeks ago, several things have happened in the corpus linguistics world that I’d like to discuss:  Stephen Mouritsen posted a significant and substantive response to several of my questions.  (His response can be found in this thread, and it is dated September 20).  Neal Goldfarb wrote two lengthy and important posts on his blog. And a new corpus linguistics paper about the likely meaning of the word “emolument” as it is used in the Constitution was posted on SSRN.  All three of these things have helped me further refine my views on corpus linguistics.  But I remain deeply concerned about using corpus linguistics as a methodology to interpret criminal statutes.

First, let me begin by saying that many law professors have not yet made up their minds about corpus linguistics.  They haven’t made up their minds because it is not clear what corpus linguistics and the law aims to do.  A number of people—especially those who consider themselves textualists—tell me that they see corpus frequency analysis as potentially useful for identifying possible or permissible meanings of an otherwise unclear statutory term.  But that is not what those who are advocating for corpus linguistics in the law say.  They tell us that, while dictionaries can help us identify permissible meanings, corpus linguistics can do more.  Specifically, they say it can help judges identify the ordinary or plain meaning of the statute.  In fact, they (at least occasionally) tell us that the frequency with which a word is used a particular way is information that *must* be taken into account in determining the ordinary meaning of a statutory term.

It is this aspect of corpus linguistics that has led me to characterize it as a method of statutory interpretation.  In his comment on my last post, Stephen Mouritsen offered some thoughts on whether he thinks that corpus linguistics is a methodology/theory of statutory interpretation.  While I recommend that you read his entire comment, I want to respond to a few of the things that Mouritsen said on this question.  Among other things, he said the following:

I disagree with your description of the approach that I (and my co-author) have described. I think corpus linguistics can be a very useful tool for providing information that can be relevant to some of the linguistically oriented questions that the law sometimes asks. I don’t think that it should be used to foreclose consideration of other evidence of meaning. While there may be methodological differences among the very few papers that apply a corpus approach, I disagree with the suggestion that what Justice Lee and I have advocated treats corpus linguistics as more than a tool that can provide useful information when the law asks certain linguistically oriented questions. In short, I don’t believe, and haven’t advocated, corpus linguistics as a “new twist on textualism.”

. . .

I think the dichotomy between, on the one hand, corpus linguistics as an interpretive methodology on par with textualism and purposivism (or even as you characterized it as “a new twist on textualism”), or, on the other hand, corpus linguistics as a source of “marginally” useful information, may not be an accurate way to frame the utility of linguistic corpora for interpretive problems. I think corpus linguistics can be a source of “very” useful information that can provide helpful insight in many cases in which the question that the law poses is a linguistically oriented question. Applications of the ordinary meaning canon are one example. And I don’t think that they are a necessarily “textualist” example. I can’t imagine that there is any jurisdiction in the United States that doesn’t use some variety of the plain or ordinary meaning canon of statutory interpretation, regardless of whether the judges who invoke it are textualists, purposivists, Dworkinian moralists, Sunsteinian minimalists, or fans of Nickelback.

I can’t be sure, but these passages suggest that Mouritsen would like corpus linguistics to be something more than an interpretive tool, but something less than a fully formed theory of interpretation.  But in saying that corpus linguistics ought to be considered “a source of ‘very’ useful information” for *any* method of statutory interpretation, including “purposivists, Dworkinian moralists, Sunsteinian minimalists, or fans of Nickelback,” I find it difficult to understand how Mouritsen sees corpus linguistics as something *less than* a theory of statutory interpretation.  A methodology that ought to be used no matter what your theory of interpretation is bigger than a “tool.” 

To try and get at what, precisely Lee and Mouritsen are trying to accomplish, I asked a question in my last post about whether they think that a frequency analysis is required in statutory interpretation.  Specifically, I asked whether Mouritsen was “backing away from a statement that he and Lee made last month on the Volokh Conspiracy that ‘a complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words’”

Mouritsen responded:

[T]hat is not, in fact, what we said. We said: “[A] complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words, the (syntactic, semantic and pragmatic) context of an utterance, its historical usage and the speech community in which it was uttered.” When you take into account each of these factors you may often find that a highly specialized, infrequent sense of a word is the most likely candidate for ordinary meaning. You may find that the context clearly eliminates some or all but one of the senses of the word as possibilities. You may also find that the word or phrase in question has many potential uses in that same context, in which case it is difficult to make the case that any of the potential senses is the ordinary meaning. So the characterization of the approach in your prior post that “if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the ‘ordinary meaning,’” to me doesn’t capture the approach we have outlined in our paper. Yes, I think that the frequency with which a word gets used in a particular way, in a particular syntactic, semantic and (sometimes) pragmatic context that is similar to the legal text in question, in the speech community or linguistic register that is similar to the one of those subject to the statute, and from a similar time frame is a relevant consideration when determining the “ordinary meaning” of the words of a statute. As I noted before, “[t]o the extent that you find that a given sense of a word is overwhelmingly more common in a particular context similar to that of the statute, in a relevant speech community or register, and from a similar timeframe, I don’t think it is an extraordinary leap to conclude that the people subject to that statute would have understood the word in a way that is consistent with its most common meaning in those circumstances.” To the extent you have such evidence, I think it would be useful in resolving the question of ordinary meaning.

Mouritsen is, of course, correct that the sentence he and Lee wrote for the Volokh Conspiracy included more than just frequency as a requirement for ordinary meaning.  I thought I’d sufficiently acknowledged that by putting the period to end my sentence outside of the quotation marks.  But in retrospect I should have indicated the additional text with an “. . .”  

But I’m still left with my original question:  Do Lee and Mouritsen think that a determination of ordinary meaning should *always* include a corpus frequency analysis?  After all, Lee and Mourtisen presented the list of factors with the word “and”—that is to say, suggesting that *each* of the factors is necessary for what they called a “complete theory of ordinary meaning.”  But in his response, Mouritsen talks about frequency as “a relevant consideration” and “useful in resolving the question of ordinary meaning.”  So I’m afraid that I still don’t know whether Mouritsen thinks corpus linguistics is something that judges can consider if they feel like it, or if it is something judges ought to consider in every case (even if it isn’t dispositive).

This is the question I am trying to get at in my post (and to some extent in my paper)—What role do corpus linguists see frequency playing in statutory interpretation? I understand that corpus linguistics do not think that frequency will always tell us the meaning of a statutory term—though as I explain in the paper, if that frequency analysis is used by textualists, it may keep the courts from using other tools I think are better.  But in order to understand corpus linguistics as a legal methodology rather than as a linguistic methodology, it is important to know the precise role that Lee, Mourtisen, and others think that frequency data should play.  Is corpus linguistics a method for determining permissible/possible meanings, simply one tool that could be used to help determine ordinary meaning, or something that judges should always consider when choosing between various possible meanings?  After Mouritsen’s comments on my previous posts, I’m just not sure. I don’t see him saying that corpus linguistics should be used merely to determine possible or permissible meanings.  He thinks it can do more.  But how much more is unclear. 

Next, I want to return to the claim that corpus linguistics is a superior tool for discerning meaning because it is objective and scientific in nature.  In my last post, I took issue with Mouritsen’s statements that corpus linguistics “findings are replicable and falsifiable.”  Mouritsen responds:

You disagree with the characterization that the corpus linguistics approach to ordinary meaning is scientific. You acknowledge that the search that gathers the language data is replicable, but argue that “it is the analysis that matters” and different parties can draw (and have drawn) different conclusions from the same data. I simply don’t agree that the idea that people drawing different conclusions from the same data, or subjectively interpreting objective data, undermines the scientific nature of a corpus-based the inquiry. If we are going to classify as “unscientific” any form of inquiry where two people interpret the same data differently (and even subjectively), then we would have to condemn economics and every social science as “unscientific.” We may, in fact, have to shut down many upper level, theoretical courses in the “hard sciences” where subjective interpretation of data may lead different people to different theoretical conclusions. Disagreement about the interpretation of data is part of what Thomas Kuhn called the “route to normal science.” As I noted in my prior comment, corpus data won't “tell you what to do with th[e] information or whether that information is helpful for resolving certain types of questions. Shared standards, practices, and methods emerge when people in the relevant field start using the tool and start debating where it is useful and where it is not useful (or even harmful).” The fact that two parties look at the same data and interpret the data differently doesn’t render the enterprise unscientific.

I am afraid that I have to object to how my argument is being characterized. My complaint is not that corpus linguistics is unscientific, but rather that the use of the terms “replicable and falsifiable” suggests that the method connotes the same objectivity as an experiment in the hard sciences.  My post said:

I want to push back on the scientific/objective language that Mouritsen uses in his comments (and elsewhere) to advocate for corpus linguistics.  He tells us that “one of the chief benefits of the corpus approach is transparency. When corpus linguists are wrong about ordinary meaning, they are transparently wrong, because their approach and their findings are replicable and falsifiable.”  I see the rhetorical value of this language, but I have a very hard time understanding the analytical work that it does. 

In the hard sciences, we place great stock in findings that are replicable and falsifiable.  If, for example, someone conducts the same physics or chemistry experiment that I conducted, and their measurements are the same as mine, then we can be reasonably confident that my experiment was conducted appropriately and that its findings tell us something about the physical world.  But that hard sciences model does not map onto corpus linguistics—at least not corpus linguistics as a method of statutory interpretation.  That is because a corpus *search* is replicable, but the search itself doesn’t tell us anything about usage/meaning.  It is the *analysis* that matters.  To say that someone could conduct the same corpus search and obtain the same results is no different than saying someone could consult the same dictionary that I consult and find the same entries.  But just as I might draw different conclusions from those dictionary entries, so too are people likely to draw different conclusions based on their corpus analyses.

I don’t think that it is fair to characterize this objection to corpus linguistics as a claim that an enterprise is “unscientific” if “two parties look at the same data and interpret the data differently.”  Instead, my criticism is that while a corpus search is objective and replicable, the frequency analysis itself is highly subjective.  And the subjective nature of the analysis undercuts the promise of corpus linguistics as an objective method for determining ordinary meaning—something that Mouritsen has claimed in the past. 

Let me give an example of how non-objective a frequency analysis can be using the new corpus linguistics paper on the meaning of the word “emoluments” in the Constitution.  In their methodological section, the two authors explicitly note that the analysis of corpus search results is subjective, and thus they realized that they were likely to code results differently. In order to facilitate consistent coding, they practiced: that is to say, they independently coded material and then met to discuss why they had arrived at particular decisions.  After multiple rounds of these practice coding sessions, they were only agreeing on how to code a particular result 70% of the time.  This 30% disagreement rate after several rounds of practice, in my mind, severely undercuts the claim that corpus linguistics frequency determinations are “replicable and falsifiable” findings.

To be fair to Mouritsen, he backs away from the idea that corpus linguistics can tell us when a judge is “transparently wrong.” But he sticks to his guns about the benefits of corpus linguistics.  He says

the corpus data gives some content to these differing conceptions of ordinary meaning. It forces the judges to show their work and gives a transparent account of what each opinion appears to mean by “ordinary meaning.” This is in contrast to what happens when a court fails to explain what they mean by ordinary meaning and merely invokes the canon and it is not what happens when courts simply cite a dictionary (given that dictionaries don’t typically provide information about ordinary meaning and are typically cited, as James Brudney and Lawrence Baum pointed out in their article “Oasis or Mirage,” merely as window dressing).

I am unconvinced that we need corpus linguistics in order to ensure that judges engage with each other and transparently explain why they think a particular term ought to be read to have a particular meaning.  We already see a significant amount of back and forth between judges when they disagree about meaning—far more than we saw in the mid-twentieth century.  So I don’t think that we need corpus results in order for judges to explain their interpretive decisions; we just need a culture of reasoned explanation in judicial opinions. 

But even if Mouritsen is right that corpus linguistics will cause judges to engage with each other more, that does not make corpus linguistics more attractive to me. That is because I don’t think that a dispute over how to interpret frequency results of a corpus search would improve the quality of an interpretive dispute.  For one thing, as I explained at length in my essay , I don’t think that frequency is a good measure or method for determining the ordinary meaning of criminal laws.  For another, (also explained at length in the essay) I think that judges have a significant constitutional role to play in the interpretation of law—at least the criminal law—and that role is likely to be neglected if judges get caught up in how to appropriately categorize and count database results.  And given that corpus linguistics analysis is so subjective, I don’t see what we add to the enterprise by having judges fight about how to analyze the results of a corpus search.  I’d rather they engage directly with the statute and how the scope of the statute affects individual rights.

Although this post is already long enough, let me address some of the comments that Neal Goldfarb made in his response to my paper.  I (of course) agree with Neal that usage is not distinct from meaning, but rather meaning arises from usage.  But while usage is what determines permissible or possible meanings, those who advocate for corpus linguistics in the law go a step further: They tell us that frequency of usage can help us determine the meaning of an otherwise unclear term.  Here is how Neal explains the argument in his blog post on meaning:

It seems reasonable to expect that the higher the frequency with which a particular sense is associated with a particular type of context, the more likely it is that when the word is used in similar contexts in the future will be understood to have the same meaning. In this way of looking at the issue, the corpus data is seen as a rough representation of the input—what people hear and read—that shapes people’s understanding of word meanings.

It is known that the frequencies with which specific patterns and constructions occur has an effect on how language is learned and mentally processed. It doesn’t strike me as a big leap from that to the conclusion that the strength of the association between the use of a word in a particular type of context will depend at least in part on how frequently one encounters that word being used, in that type of context, to express that meaning. Or at least that seems reasonable if the idea of “types of context” can be adequately defined.

I will get to that, but first I need to note that I’m extrapolating from what I know of the literature, not reporting on what it says; I can’t point to any work that has been done on this specific question. Nevertheless, the assumption I’m discussing is, as far as I know, consistent with the fact that frequency effects are so widespread.

Importantly, Neal tells us that the linguistics literature does not speak to the fundamental premise of corpus linguistics and the law—namely, whether the frequency with which a particular word is used a particular way will affect how a listener is likely to understand the term when it appears in a statute.  Neal admits that he is making a leap from the literature and relying on his own common sense, and I sincerely appreciate Neal’s transparency about the assumptions that he is making.  But I will add that the assumptions that Neal makes do not address my concerns about notice.  Simply put, why would we think that frequency data would capture an average citizen’s intuitions about a statute’s meaning, but not a judge’s?

I can guess that Neal would say that my concerns about notice fail to appreciate the difference between interpretation and comprehension—the subject of his first response to my paper.    As he explains in that post “nobody is suggesting that corpus linguistics be used for investigating those kinds of intuitions. The whole purpose of using corpus linguistics is to learn things that aren’t accessible to intuition.”  But here is why I base my critique of corpus linguistics in the criminal law:  The criminal law does care about an average person’s ability to read a statute and articulate what it allows and what it prohibits.  If corpus linguistics is going to give us a different answer to the question “what does this criminal statute prohibit” than the answer we expect, then there are real problems under the Due Process Clause.  That is because one of the fundamental limitations on criminal statutes in modern America is that they must give people sufficient notice about what a particular law covers and what falls outside of it.  If corpus linguistics is valuable precisely because it gives us different answers than our intuition about statutory meaning, then I think it poses a significant threat to the need for notice in the interpretation of criminal laws.

Now maybe Neal and other corpus linguists would like to argue about what the Due Process Clause requires for the interpretation of criminal laws. Maybe they do not think that judges ought to ask how an ordinary citizen is likely to interpret the scope of a criminal statute.  I’d be quite happy to have that discussion.  Frankly, if lawyers, judges, and law professors are going to say that corpus linguistics ought to play a role in statutory interpretation, I think that they need to have these discussions.  We aren’t linguists. Our inquiry is not simply how might we better understand how people use words.  Our inquiry is how should we interpret statutes.  In advocating for the use of corpus linguistics in the law, that is what we need to be most focused on.  We can’t push that question down the road and say that “best practices” will develop over time. 

While I find much to disagree with in what Stephen and Neal have written, I can’t stress enough how much I appreciate them taking the time and effort to respond to my paper and my blog posts.  The engagement has allowed me to better understand and articulate the problems that I see with corpus linguistics and the criminal law. And it represents the best type of scholarly interaction—fair, dispassionate, and substantive.  And because of their helpful and thoughtful comments, I hope to have another post soon about context and corpus linguistics.

Posted by Carissa Byrne Hessick on September 25, 2017 at 09:56 AM in Carissa Byrne Hessick, Criminal Law, Judicial Process | Permalink | Comments (4)

Monday, September 18, 2017

Thompson v. Arkansas and Ineffective Assistance of Counsel at Sentencing

Earlier this summer, I helped write a cert petition for the US Supreme Court. The case involves an ineffective assistance claim out of Arkansas.  The petitioner, Mario Thompson, was represented at trial by a lawyer who didn’t do very much on his behalf. Among other things, the lawyer failed to investigate or prepare any sort of meaningful mitigation case for sentencing.  On collateral attack, a state judge held that the lawyer failed to provide effective assistance of counsel at sentencing. But the Arkansas Supreme Court reversed.

Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence.  This rule is inconsistent with the reasoning of Glover v. United States, 531 U.S. 198 (2001). And although Arkansas is the only jurisdiction to have adopted this particular rule, there is a split over the appropriate prejudice standard for ineffective assistance of counsel at sentencing claims.  The Second, Third, Sixth, and Tenth Circuits have adopted what I think is the correct legal standard.  The courts of last resort in Louisiana, Michigan, and Wisconsin have adopted that same standard.  But Arkansas and the Fifth Circuit have adopted different prejudice standards. And several federal district courts have started to question how they ought to assess these claims.

Even though there is a clear split and a strong case that the Arkansas Supreme Court has adopted an unconstitutional standard, the Supreme Court is unlikely to grant the cert petition. For one thing, the petition will be considered at the so-called “long conference,” which will take place on September 25th.  That is when the Court will consider hundreds (if not thousands) of cert petitions that have piled up over the summer.  Petitions that are considered at the long conference are less than half as likely to be granted than petitions considered during the Term. 

For another thing, although this case involves an important issue of federal constitutional law, it comes out of state court.  State criminal cases vastly outnumber federal cases—I’ve seen estimates that federal felony filings make up less than ten percent of all felony filings in the country.  But that is not reflected in the cases that the Supreme Court takes.  In the 2016 Term, for example, the Court decided 28 cases that involved criminal law, criminal procedure, or closely related topics (like Bivens actions involving law enforcement). Almost half of those cases (13 of the 28) involved federal law or federal prosecutions.

Of course, any cert petition faces an uphill battle.  The Supreme Court hears fewer than a hundred cases per year, and it receives thousands of petitions. But it is more than a little disheartening to know that these other, seemingly irrelevant issues, make a cert grant in the Thompson case so much less likely.

Posted by Carissa Byrne Hessick on September 18, 2017 at 09:04 AM in Carissa Byrne Hessick, Constitutional thoughts, Criminal Law, Judicial Process | Permalink | Comments (4)

Monday, June 19, 2017

"In an appropriate case, we should reconsider our qualified immunity jurisprudence." (SCOTUS Symposium)

Today was a busy and newsworthy day in constitutional law at the Supreme Court, and one reason was the Court's constitutional remedies decision in Ziglar v. Abbasi. In Ziglar, a short-handed, six-Justice Court blocked a set of constitutional claims brought against government officials arising out of harsh detentions in the wake of 9/11. The Court's ruling implicated several different procedural doctrines, and may prove to be the ultimate cap on almost all "Bivens" suits for damages against federal officials (as Steve Vladeck discusses in this thread and as Howard posted here earlier).

But along the way, the decision provoked some promising skepticism from Justice Thomas about the doctrine of qualified immunity (A doctrine which protects government officials from liability for unconstitutional conduct, and which I've previously posted about here and here). Here is Justice Thomas, writing separately:

As for respondents’ claims under 42 U.S.C. § 1985(3), I join Part V of the Court’s opinion, which holds that respondents are entitled to qualified immunity. The Court correctly applies our precedents, which no party has asked us to reconsider. I write separately, however, to note my growing concern with our qualified immunity jurisprudence.
The Civil Rights Act of 1871, of which § 1985(3) and the more frequently litigated § 1983 were originally a part, established causes of action for plaintiffs to seek money damages from Government officers who violated federal law. See §§ 1, 2, . 13. Although the Act made no mention of defenses or immunities, “we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Malley v. Briggs, 475 U.S. 335, 339 (1986) (internal quotation marks omitted). We have done so because “[c]ertain immunities were so well established in 1871 . . . that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) ; accord, Briscoe v. LaHue, 460 U.S. 325, 330 (1983). Immunity is thus available under the statute if it was “historically accorded the relevant official” in an analogous situation “at common law,” Imbler v. Pachtman, 424 U.S. 409, 421 (1976), unless the statute provides some reason to think that Congress did not preserve the defense, see Tower v. Glover, 467 U.S. 914, 920 (1984).
In some contexts, we have conducted the common-law inquiry that the statute requires. See Wyatt v. Cole, 504 U. S. 158, 170 (1992) (Kennedy, J., concurring). For example, we have concluded that legislators and judges are absolutely immune from liability under §1983 for their official acts because that immunity was well established at common law in 1871. See Tenney v. Brandhove, 341 U.S. 367–376 (1951) (legislators); Pierson v. Ray, 386 U.S. 547–555 (1967) (judges). We have similarly looked to the common law in holding that a prosecutor is immune from suits relating to the “judicial phase of the criminal process,” Imbler, supra, at 430; Burns v. Reed, 500 U.S. 478–492 (1991); but see Kalina v. Fletcher, 522 U. S. 118–134 (1997) (Scalia, J., joined by Thomas, J., concurring) (arguing that the Court in Imbler misunderstood 1871 common-law rules), although not from suits relating to the prosecutor’s advice to police officers, Burns, supra, at 493.
In developing immunity doctrine for other executive officers, we also started off by applying common-law rules. In Pierson, we held that police officers are not absolutely immune from a § 1983 claim arising from an arrest made pursuant to an unconstitutional statute because the common law never granted arresting officers that sort of immunity. 386 U.S., at 555. Rather, we concluded that police officers could assert “the defense of good faith and probable cause” against the claim for an unconstitutional arrest because that defense was available against the analogous torts of “false arrest and imprisonment” at common law. Id., at 557.
In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute. See Wyatt, supra, at 170 (Kennedy, J., concurring); accord, Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J.,joined by Thomas, J., dissenting). In the decisions following Pierson, we have “completely reformulated qualified immunity along principles not at all embodied in the common law.” Anderson v. Creighton, 483 U.S. 635, 645 (1987) (discussing Harlow v. Fitzgerald, 457 U. S. 800 (1982)). Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under § 1983, we instead grant immunity to any officer whose conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mullenix v. Luna, 577 U.S. ___, ___–___ (2015) ( per curiam) (slip op., at 4–5) (internal quotation marks omitted); Taylor v. Barkes, 575 U.S. ___, ___ (2015) (slip op., at 4) (a Government official is liable under the 1871 Act only if “ ‘existing precedent . . . placed the statutory or constitutional question beyond debate’ ” (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011))). We apply this “clearly established” standard “across the board” and without regard to “the precise nature of the various officials’ duties or the precise character of the particular rights alleged to have been violated.” Anderson, supra, at 641–643 (internal quotation marks omitted). We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence supports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine. See generally Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript, at 7–17), online at https://papers.ssrn.com/abstract=2896508 (as last visited June 15, 2017).
Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the1871 Act, we are no longer engaged in “interpret[ing] the intent of Congress in enacting” the Act. Malley, supra, at 342; see Burns, supra, at 493. Our qualified immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to make. Rehberg v. Paulk, 566 U.S. 356, 363 (2012) (internal quotation marks omitted); see also Tower, supra, at 922–923 (“We do not have a license to establish immunities from” suits brought under the Act “in the interests of what we judge to be sound public policy”). We have acknowledged, in fact, that the “clearly established” standard is designed to “protec[t] the balance between vindication of constitutional rights and government officials’ effective performance of their duties.” Reichle v. Howards, 566 U. S. 658, 664 (2012) (internal quotation marks omitted); Harlow, supra, at 807 (explaining that “the recognition of a qualified immunity defense . . . reflected an attempt to balance competing values”). The Constitution assigns this kind of balancing to Congress, not the Courts.
In today’s decision, we continue down the path our precedents have marked. We ask “whether it would have been clear to a reasonable officer that the alleged conduct was unlawful in the situation he confronted,” ante, at 29 (internal quotation marks omitted), rather than whether officers in petitioners’ positions would have been accorded immunity at common law in 1871 from claims analogous to respondents’. Even if we ultimately reach a conclusion consistent with the common-law rules prevailing in 1871, it is mere fortuity. Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.

Now, of course, Justice Thomas is writing only for himself, but I am glad to see somebody on the Court asking whether the doctrine of qualified immunity is legally justified in its current form. I have suggested that the answer is probably "no," but even if the Court disagrees and ultimately concludes that the answer is "yes," I think it would be good for the Justices to give some attention to the issue, and explain why exactly they think it is justified. (As I discuss in the paper, different members of the Court have at times subscribed to three different justifications, though I think each of them is somewhat wanting.)

In an interesting coincidence, just last week I came across this certiorari petition in the case of Surratt v. McClaran, which asks the Court, among other things, to discontinue or modify the doctrine of qualified immunity. I haven't finished digging into the Surratt case itself -- it appears that police officers choked a woman to death in the back of a squad car while trying to get a baggie of drugs out of her mouth, but the Fifth Circuit found immunity anyway, noting that "previous law has provided no guidance regarding what is precisely reasonable and what is unreasonable regarding the use of force to an individual's throat where the individual appears to be concealing something in their mouth."

Perhaps the "appropriate case" will be before Justice Thomas and the rest of the Court in just a few months.

[Cross-posted at The Volokh Conspiracy.]

Posted by Will Baude on June 19, 2017 at 04:35 PM in 2016-17 End of Term, Constitutional thoughts, Judicial Process | Permalink | Comments (1)

Wednesday, June 07, 2017

SCOTUS OT16 Symposium: A few more thoughts on majority opinions

Ian’s post on the assignment power, building on Howard’s earlier post, asks why opinions of the Court have to be assigned at all, rather than just traded off among the Justices. This brings to mind a more general question: why do we even need an “opinion of the Court”? Or, to put it another way, how much effort should the Justices invest merely in order to “get to five”?

The Court probably isn’t about to return to seriatim opinions—though in certain ways that might be nice. From a separation-of-powers perspective, seriatim opinions are plainly the Justices’ opinions about the law. That’s distinct from the Court’s judgment, which is legally binding under Article III. (See Will’s helpful article on the subject.) By contrast, the unified structure of an “opinion of the Court” can suggest, in my view misleadingly, that the opinion itself is the binding law.

These worries aside, I’ve read enough seriatim opinions to understand the desire for a single authoritative statement from the Court. Law professors may revel in a sea of opinions, but practitioners don't want to sort through a pile of separate documents to identify the propositions that the Justices held in common. Issuing a single opinion, agreed to by a majority, helps courts, lawyers, and the public figure out what the Justices think.

Requiring five votes, though, doesn’t itself generate agreement on the law. If the Justices irreducibly disagree, they aren’t going to generate a single opinion with a single, coherent, well-reasoned rationale. Their disagreement is going to show up somewhere, and the only question is where to push the bump under the rug. In fact, insisting on a single majority opinion might make things worse.

How does the Court respond to disagreement? One approach is to secure five votes by turning the opinion’s reasoning into mush. Compromising on the rationale to get a majority opinion means compromising all the interests that make opinions for the Court useful—e.g., producing a fact-bound opinion effectively good for that case only, or articulating standards so vague that they fail to provide effective guidance for the future.

Another approach looks like Adarand Constructors v. Pena, 515 U.S. 200 (1995):

O’Connor, J., announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views expressed in the concurrence of Scalia, J., and an opinion with respect to Part III-C. Parts I, II, III-A, III-B, III-D, and IV of that opinion were joined by Rehnquist, C. J., and Kennedy and Thomas, JJ., and by Scalia, J., to the extent heretofore indicated; and Part III-C was joined by Kennedy, J. Scalia, J., and Thomas, J., filed opinions concurring in part and concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined. Souter, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined.

There are at least three problems with this approach. The first is that it’s occasionally incomprehensible. The second problem is that it distorts the precedential value of the opinions. Law students almost always miss when the label changes from “Opinion of the Court” to “Opinion of Burble, J.” at the top of the page. So the unjoined portion of the otherwise-majority opinion typically gets undue attention, far more than it deserves (or than is paid to a plurality opinion or a concurrence with similar numbers), simply because it comes from the assigned author’s pen. The third problem is that it’s very hard for the Justices to write an effective opinion that’s only partly for the Court. Only the rare stylist is capable of writing an opinion that’s equally coherent with or without some large chunk in the middle. No matter what, Part VII always depends in part on the existence of Part V; and if only Part VII has a majority, it’ll be just as difficult for other courts to apply it in Part V’s absence.

So my proposal is as follows. Majority opinions and individual opinions serve different functions, and the Court should help readers distinguish these functions by separating them at a structural level. In the courts of appeals, this is sometimes done through multiple opinions by the same author: my old boss Judge Williams would occasionally write a concurrence to his own majority opinion, to better reflect which propositions enjoyed majority support and which were frolics of his own. Similarly, Justice Holmes would occasionally author majority opinions dubitante, as in Javierre v. Central Altagracia, 217 U.S. 502, 508 (1910):

Notwithstanding these considerations, I should have preferred to affirm the decree, but, as my reasons have been stated to my brethren, and have not prevailed, it is unnecessary to repeat them now.

Decree reversed.

If the Court doesn’t want to go that far, it could accompany the maze of opinions in complex merits cases with a per curiam opinion, every sentence of which would be guaranteed to enjoy five votes. That per curiam opinion wouldn’t need to state a coherent rationale for the judgment; by assumption, there is no such rationale that enjoys majority support. Instead, it could say things like “Four Justices reach this result because of X, while two others do so because of Y.” It would resemble an extended, integrated version of the syllabus—but it would carry the imprimatur of the Justices, not just of the Reporter of Decisions. As a result, any court or lawyer wanting only to know “what does this case require of me tomorrow” could consult the per curiam, while anyone interested in assessing the Justices’ disagreements or making predictions about future cases could look to the concurrences and dissents.

When the Court decides a case, we need to know what a majority is likely to affirm or reverse, and also what they’ll be thinking when they do. It’s best for everyone if these two interests happen to line up. But if not, the second-best alternative may not be a patchwork attempt at a five-vote opinion. Justice Scalia once hotly criticized what he saw as a “specious unanimity”; and whatever one might think of his opinion in that case, it’s fair to say that broader majorities can add to confusion as well as reduce it. If the Justices take different views of the law, it’s often better for the legal system that their disagreement be confronted and understood.

Posted by Stephen Sachs on June 7, 2017 at 12:09 AM in 2016-17 End of Term, Constitutional thoughts, Judicial Process, Symposium | Permalink | Comments (8)

Tuesday, May 23, 2017

Another unwarranted universal/nationwide injunction

Last week, Judge Jones of the Western District of Washington issued a nationwide TRO against enforcement of a federal regulation barring attorneys from providing limited limited legal services for otherwise-pro bono litigants in immigration proceedings. The regulation requires attorneys to file a formal appearance as counsel of record in order to provide any representation, something the plaintiff Northwest Immigrant Rights Project, a nonprofit advocacy organization, cannot afford to do in all cases for all clients. NWIRP argued that the regulation violated the First Amendment.

As always, the court made the order nationwide: "Counsel for the Government represented during the hearing on the TRO that it desired to continue issuing cease and desist letters to non-profit organizations providing legal services to immigrants. As such, the Court grants this TRO on a nationwide basis. Therefore, the Court prohibits the enforcement of 8 C.F.R. § 1003.102(t) during the pendency of this TRO on a nationwide basis."

Even if universal injunctions might at times be warranted, this is not one of those times. NWIRP represents clients only in the Pacific Northwest, so it would be sufficiently protected by an injunction prohibiting the issuance of cease-and-desist letters to it in Washington. We could even extend that to the issuance of letters to NWIRP anywhere in the country (a real "nationwide" injunction). But NWIRP's is in no way deprived of complete relief if the government issues C/D letters to any other lawyers or nonprofit organizations anywhere else in the country. There is no reason, and no basis in principles of equity and judgments, for one district court in a non-class action to freeze enforcement as to every other person everywhere in the country.

But we have reached a point where universality is automatic and unthinking. Every district judge believes that every injunction baring enforcement of a provision of federal law must be universal.

Posted by Howard Wasserman on May 23, 2017 at 06:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Wednesday, March 01, 2017

Thanks, and More on Interdependent Courts

Thanks to Howard and the gang for letting me blog here this month.  For those who are interested, I’ll be continuing my discussion of court organization, structure, and strategy at a newly launched blog, The Interdependent Third Branch.  After you peruse Prawfsblawg, I hope you’ll take a moment to check it out!

Posted by Jordan Singer on March 1, 2017 at 02:16 PM in Blogging, Judicial Process | Permalink | Comments (1)

Monday, February 27, 2017

ABA Ratings of Federal Judicial Nominees

The Wall Street Journal ran an interesting article* this weekend about the American Bar Association’s process for reviewing and rating federal judicial nominees.  (You can download a PDF version here if you do not have subscription access.)  The upshot of the article is that the ABA’s Standing Committee on the Federal Judiciary, a rotating group of fifteen lawyers, reviews and rates every Article III nominee before confirmation hearings begin.  The Standing Committee conducts confidential interviews of those who have interacted professionally with each nominee, ranging from co-counsel and opposing counsel, to judges before whom the nominee has appeared, to judicial colleagues if the nominee is already in the bench.  For Supreme Court nominees, the number of interviews can reach into the hundreds.  Each nominee is then rated well qualified, qualified, or not qualified, based on a committee vote.

The ABA’s role dates back to the Eisenhower Administration.  Its involvement has been controversial at times, but its general criteria for evaluating nominees—professional competence, integrity, and temperament—are wholly appropriate.  For district court nominees, whose daily interaction with litigants and attorneys requires a calm demeanor and unquestioned impartiality and skill, the ABA’s review is a welcome assessment of the nominee's temperament and ability.  For appellate nominees, the same focus on demeanor and skill is beneficial in a different way.  There is no question that policy considerations guide a President’s selection of a Supreme Court nominee, nor is there any question that the Senate is inclined to turn every Supreme Court confirmation hearing into excruciating political theater.  But however it ends, the process should begin with a strong vote of confidence that the nominee is professionally up to the job.

* Full disclosure: I was interviewed for, and quoted in, the article.  But that’s not why it’s interesting!

Posted by Jordan Singer on February 27, 2017 at 10:32 AM in Judicial Process, Law and Politics | Permalink | Comments (1)

Friday, February 24, 2017

Who Speaks for the Courts? Who Should?

The President’s recent (and not-so-recent) tweets about the federal judiciary have spurred discussions among legal academics about whether the courts can really defend themselves in the public sphere—and if not, whether one or more (presumably self-appointed) groups should do it for them. 

I admit to being of two minds about these types of efforts.  On the one hand, the third branch certainly needs good public advocates.  Judges must maintain an air of impartiality to preserve their legitimacy, and that typically precludes them from responding to attacks, even if a response would ordinarily be justified.  On the other hand, standing up for the courts must be done carefully or it can become counterproductive.  In an age where almost anything can be politicized, the wrong choice of words, or the advocate’s own political views, can cause more harm to the court than good.  As is often the case with public advocacy, the direction and tenor of the conversation is not entirely within the advocate’s control.  

To sort through this issue more carefully, I like to remind myself of some facts about court and judicial “speech” generally. 

First, courts often do speak on their own behalf, albeit primarily on issues related to their performance and resource requirements.  The Chief Justice’s Year-End Report—really a glorified statistical report invariably wrapped in an odd piece of historical trivia and wierdly embargoed until the evening of December 31—provides an opportunity to highlight some issue of importance to the federal court system each year.  Other federal judges, usually under the mantle of the Judicial Conference of the United States, testify before Congress from time to time on issues related to funding, staffing, and grants of authority.  At the state level, Chief Justices commonly present a formal State of the Judiciary speech to the legislature, which addresses similar topics.  Those speeches sometimes wade into political waters, as Texas Chief Justice Nathan Hecht did earlier this month when he briefly advocated for an end to that state’s partisan elections.  Moreover, both state and federal court systems have public information officers and, increasingly, a presence on social media.

Individual judges also occasionally advocate for their professional interests in court.   In recent years, federal judges have sued the government for having received inadequate compensation, and state judges (and judicial candidates) have sued to clarify their First Amendment rights of speech and association

For the most part, however, American judges at every level are exceedingly cautious about speaking out on their own behalf.  The ABA’s Model Code of Judicial Conduct broadly and affirmatively discourages political speech or activity.  Canon 2 provides that “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.”  And Canon 5 states that “A judge or judicial candidate shall refrain from inappropriate political activity.”  Because “impropriety” and “inappropriate political activity” are such open-ended terms, and because even nearing the line of impropriety might be damning, most judges stay far away.

This has created some difficult moments for judges, particularly at the state level.  Over the past decade, several judges facing retention elections have been targeted for removal by special interest groups with widespread television advertising.  In other instances, statewide initiatives designed to politicize or punish the judiciary (including, most notoriously, South Dakota’s "JAIL 4 Judges" initiative) have appeared on the ballot.  But a formal response to these efforts from the judiciary is impractical and dangerous: even a cautious and thoughtful reply would be spun by its detractors.  Judges have never wanted a war of words; Heaven forbid they find themselves in a war of tweets.

In these circumstances, bar associations, law professors, and various special interest or good government groups often do step in to defend the courts.  Their messaging can be effective if the message is simple and clearly bipartisan or nonpartisan.  For example, in 2006 an initiative in Colorado would have imposed retroactive term limits on state supreme court justices, effectively retiring five of the seven members of the bench.  If passed, the initiative would have destroyed institutional knowledge, broken up a collegial court, and undermined legal predictability.  A coalition of groups, led by the state bar association, drafted respected public figures from both parties to publicly oppose the effort and distilled its opposition into a simple message: "Bad Idea, Serious Consequences."   The straightforward message and coalition-building worked, and the initiative failed.

Courts assuredly wish that no one would have to speak for them, but that is not the reality.  Better civic education can help cool popular passions, and educational efforts are being made at the federal level, the state level, and even by Sandra Day O'Connor.  In the meantime, those who support fair and impartial courts should think strategically about the timing and tenor of their advocacy, lest their protective sentiment—however sincere—simply create a new round of mudslinging.

Posted by Jordan Singer on February 24, 2017 at 02:17 PM in Judicial Process, Law and Politics | Permalink | Comments (9)

Friday, February 17, 2017

Why Is It So Hard For the (Federal) Courts To Innovate?

Earlier this week, the House Judiciary Committee held a hearing which touched on a wide range of court transparency issues.  Of particular interest to me was the testimony of Mickey Osterriecher, the general counsel of the National Press Photographers Association, who renewed the push for broadcast access to federal court proceedings.  He noted that the recent live audio stream of the Ninth Circuit’s telephonic hearing on President Trump’s travel ban garnered more than a 137,000 connections on YouTube, with millions more tuning on cable TV news.

Given that the other branches of the federal government have long broadcast many of their proceedings (CSPAN has been on the air for nearly 40 years), and that courtrooms are traditionally open to the public anyway, there is no obvious reason reason why the federal court system would not provide video and audio access to their proceedings on a much more regular basis.  Yet the Judicial Conference of the United States and the Supreme Court have repeatedly blocked efforts to do just that.  Indeed, two years ago the Judicial Conference let lapse a nationwide pilot program that allowed volunteer district courts to record selected civil proceedings and make those recordings available to the public. (Only three district courts in the Ninth Circuit have been permitted to continue the project.)  That pilot, whose success I documented here, and carried significant benefits for the legal profession and the public. 

So why did the Judicial Conference end it?

The U.S. Courts website offers little guidance, only noting dryly that the "Committee on Court Administration and Case Management ... agreed not to recommend any changes" to the general policy of prohibiting cameras.  The real reason for ending the cameras program--left unstated by the Judicial Conference--is that the introduction of cameras on a regular basis is seen as too risky.   To understand why, it is helpful once again to think about the federal court system as a large organization.

Courtroom broadcasts would be an innovation, and organizations do not naturally innovate.  Innovation is disruptive and places the organization's resources at risk.  Therefore, innovation is typically justified only if: (1) the change will distinguish the organization from its competitors in the field (thereby allowing it to attract more resources), or (2) the change will conform the organization’s practices to those in the field (thereby allowing it to look more legitimate).  The distinction incentive is more prominent in the private sector, where introducing a new product or new marketing campaign could garner new customers or new investors.  The conformity (or isomorphism) incentive is more prominent in the nonprofit and public sector, where legitimacy is often tied to looking and acting like other respected organizations in the field.

The distinctiveness  incentive is not very strong here.  Broadcasting courtroom proceedings does not distinguish the federal courts from other court systems (where cameras are already allowed), and likely does not distinguish them positively from arbitrators or other private ADR providers.

The incentive to conform might seem more promising because it is so closely tied to an organization's legitimacy.  As I noted in a previous post, legitimacy is perhaps the single most important resource to the federal courts. If the courts are not perceived as legitimate, they risk losing other key resources: funding, jurisdiction, a steady flow of disputes needing resolution, and goodwill.  We might expect, therefore, that isomorphic pressures might push the federal courts toward conformity with other branches of the federal government, and many state courts, by allowing cameras to broadcast hearings in a regular basis. If isomorphic pressures are powerful enough, the courts would gain legitimacy from permitting cameras in the courtroom, and would lose legitimacy by resisting them.

Isomorphic pressures come in three forms.  Coercive pressures come from the state, usually in the form of legislation or regulation.  (A federal law requiring broadcasts of court proceedings would be an example.)  Mimetic pressures are pressures to copy peer organizations, on the theory that a behavior signals legitimacy just because everyone else is doing it.  Normative pressures derive from the culture and expectations of the professions associated with the organization.  (For example, in making policy the federal courts often consult with the ABA, the American College of Trial Lawyers, and similar prominent bar groups.)

Here, however, the isomorphic pressures are not sufficiently powerful to induce change--at least, not yet.  The coercive pressures on the courts are moderate at best: Congress has introduced a Sunshine in the Courts Act in almost every recent session, but they have never picked up serious steam. The mimetic pressures are also weak: state courts may use (and benefit from) cameras, but at least in this field the federal courts do not seem to view the state courts as peers worthy of imitation. And the normative pressures are too scattered: the arguments touting the benefits of broadcast proceedings come not from the organized bar, but rather from the media, politicians, and academics. It’s not accurate to say that courts find these views meaningless, but it is certainly safe to say that they do not find them powerful enough to move from a stable level of public legitimacy.

Conditions and external pressures can change.  I hope that the federal courts will eventually come to recognize that the benefits of the cameras program outweigh the risks, and will adopt a full program on their own.  In the meantime, friends of the court might want to rally the normative forces that counsel for such a change.

Posted by Jordan Singer on February 17, 2017 at 10:38 AM in Current Affairs, Judicial Process, Law and Politics | Permalink | Comments (6)

Friday, February 10, 2017

Managing the Vacancy Crisis: An Example of Resource Dependence in Federal Courts

One of the fundamental premises of modern organizational theory is that most organizations are resource-dependent; that is, they rely on the external environment for goods, labor, financing, or other resources necessary to complete their mission.  Factories require raw materials, nonprofits require sources of funding, and government agencies require taxpayer dollars and at least some modicum of public support.

Court systems are heavily resource-dependent in their own right, perhaps unusually so.  To serve their mission (which, we’ll stipulate for now, is the resolution of legal disputes brought before them), courts require a wide range of both tangible and intangible resources: funding, staffing, physical space, constitutional and statutory authorization to conduct their business, a regular flow of cases into the system, public participation (in the form of jurors), and public support (in the form of legitimacy).  If any one of these resources dries up, a court’s ability to perform its mission is compromised.

Perhaps no resource dependency is as striking as judicial staffing.  Many organizations depend on others for the resources or permission to hire key employees, but typically they have some say in who actually gets hired.  Courts, by contrast, are at the mercy of the public and/or the other branches of government when it comes to adding or replacing their own members.  In most state court systems, periodic judicial elections (whether contestable or of the retention variety) at least provide the judicial branch with some regularity as to the timing of replacing judges, although elections can also create massive turnover on the bench. 

In federal courts, where a sustained vacancy crisis has led to nearly 120 unfilled Article III judgeships as of this writing, the deficiency is especially pronounced.  Barack Obama showed little interest in quickly filling lower court judgeships during the first year of his presidency, and Donald Trump has not indicated much greater interest in the early weeks of his administration. 

Still, the courts are expected to do their job.  And over the years, the federal courts as an organization has developed a variety of ways—some public and direct, others more private and subtle—for managing inconsistent periods of this particular resource flow.

A few examples, from most direct to most subtle:

Lobbying Congress.  The Judicial Conference of the United States has formally lobbied Congress for additional resources, including more judges, since at the least the 1950s.  Other forms of lobbying may be less formal but no less obvious: the Chief Justice, for example, dedicated his 2008 Year-End Report to describing the resource deficiencies in the federal judiciary.  

Lobbying may seem an straightforward strategy, but it must be attempted carefully.  First, any lobbying must be done so as not to compromise the courts’ public legitimacy.  Legitimacy is the single most important resource for all courts (as it is for many organizations; more on that in a later post), and if courts are viewed as too demanding, greedy, or insensitive to public needs, asking for additional resources may backfire.  As a result, a typical strategy for the courts is to argue that they are already working at peak efficiency given the circumstances, and are simply requesting the minimum additional resources necessary for them to serve the public adequately. But the “we are doing more with less” argument itself must be carefully tailored.  It is not enough to show efficiency; it must be the kind of efficiency that Congress approves of.  Demonstrating, for example, that the federal courts guided lawsuits challenging federal legislation to trial at record speed probably won’t impress Congress or encourage it to allocate more resources to the judiciary.

Internal allocation of existing resources.  The courts have developed a number of strategies for reallocating judicial resources internally when judgeships remain unfilled.  They rely extensively on judges with senior status to handle cases.  They increasingly ask magistrate judges or special masters to handle particular pretrial matters or ADR, freeing up district judge time for dispositive issues and trial.  Some district judges (or even appellate judges) sit as visitors in other districts, often handling matters by telephone and videoconference.  Internal procedures to consolidate cases or create MDL actions also permit the courts to shuffle cases to the judges equipped to hear them quickly.

Cooptation.  Resource Dependence Theory, one of the branches of modern organizational theory, predicts that organizations  will take on additional tasks outside of their core mission if doing so allows them influence and regularize the flow of needed resources.  These additional tasks are known as buffering and bridging strategies.  One such strategy is cooptation: the focal organization invites key members of outside groups to participate in its decision-making process in order to invest those outside groups in the organization’s survival.  In the private or nonprofit sector, this may take the form of interlocking boards of directors or shared consultancies.  Courts cannot adopt this particular framework (although Chief Justice Burger unsuccessfully floated the idea of a judiciary council with members from all three branches in the 1970s), but the federal courts have included representatives from Congress and the Department of Justice on various Judicial Conference committees, either through formal membership or regular observer status.  Similarly, the courts’ relationship with the ABA and other groups can translate into explicit advocacy for more judicial resources, even without the courts explicitly requesting it.

Rulemaking.  Organizational buffering activities cannot dictate the flow of resources by themselves, but they can flatten the impact of variations in resource flow.  Another example of a buffering practice (and the topic of my current research) is court-controlled rulemaking.  Procedural rules can be used as a docket control technique in times of high judicial vacancies, especially to the extent they allow the court to dismiss, resolve, or otherwise hand off the case without a significant investment of judicial resources.  Federal Rules of Civil Procedure that increase judicial discretion in case management, discovery, and referral to alternative dispute resolution all give judges more flexibility to control their dockets; the structure of the Rules Enabling Act largely assures that the judiciary itself can drive the amendment process as needed.  

To be clear, I am not suggesting that docket control is the sole (or even primary) motivation for rules amendments—the rules committees and Judicial Conference surely have all users of the civil justice system in mind when they propose amendments to existing rules.  But the power to promulgate procedural rules should be recognized as giving the federal courts a rare outlet for docket management that is predominantly within their control.

This is already long for a blog post, but I could go on.  The more general point is that uncertainty surrounding a single resource—active Article III judges—leads to a robust set of organizational responses.  These responses all aim to increase certainty in the environment in which the courts operate, either by obtaining more resources or by creating mechanisms for coping with the inconsistent flow of those resources.

Next: What organizational theory teaches about the pressures on courts to conform to each others’ practices.

Posted by Jordan Singer on February 10, 2017 at 02:11 PM in Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, February 07, 2017

The Organizational Character of Courts

In the last few years, there has been a miniature explosion in legal scholarship concerning how courts operate as organizations.  I say “miniature” because this recent literature, to date, has largely been limited to a few interesting studies, mostly by Israeli scholars.  I say “explosion” because this sort of concerted effort to situate courts within a larger framework of organizational theory hasn’t been attempted in earnest since the 1980s.

If these new studies signal a coming renaissance in court organization scholarship, it would be a welcome development.  The studies of the late 1970s and 1980s primarily centered on lessons for court administration—the degree to which state court systems should be centralized, for instance, or how trial courts could be structured to reduce delay in case processing.  That work was important for its time, but it was also narrowly focused.  Broader investigations into how court systems operate as organizations, and how they structure their interactions with other organizations, still have not been conducted on any significant scale. 

It is also an opportune time to reopen court organization scholarship because theories of organizational behavior have advanced markedly in the last thirty years. 

American scholarship on organizational theory began in earnest after World War II, originally embracing the rational bureaucratic model described by Max Weber.  But by the 1970s, it had become clear that much organizational behavior  (whether applied to the private sector, nonprofits, or government entities) was not fully rational, and instead was heavily influenced by each organization’s external environment.  This “open systems” view suggested that organizations must interact with other people and entities in order to survive and accomplish their goals. The external environment can provide resources, marketplaces, and information, and can be the source of political, economic, or cultural forces that affect the organization’s ability to achieve its mission. 

In the late 1970s, open systems theory and the fertile intellectual soil of Stanford Business School gave rise to a variety of related but distinct approaches to organizational behavior, among them resource dependence theory, population ecology, and neoinstitutionalism. While disagreeing on certain key points, these theories did agree on two general aspects of the open system perspective. First, nearly all organizations are resource-dependent, meaning that they rely on their external environment for some combination of raw materials, labor, funding, networks, or legitimacy.  Second, resource dependency affects an organization’s behavior and strategy.  Organizations tailor their interactions and behaviors (ranging from aggressive interaction to pure acquiescence, depending on the circumstances) to reduce uncertainty and continue their mission.

The early court organization studies of the 1970s and 1980s borrowed some of these ideas, particularly resource dependence and the importance of securing and maintaining legitimacy.  Court structure and case processing efficiency were accordingly couched as ways in which courts could more wisely use their limited resources, and secure more resources by appearing legitimate in the eyes of external audiences.

Since the 1980s, however, these emerging theories have been much more rigorously tested, and repeatedly refined.  Many of their fundamental assumptions have held up to empirical scrutiny.  Other assumptions have not held up as well, or have been shown to apply primarily to the private sector.  The modern iterations of these theories invite a reassessment of how they might be applied to courts, and what lessons we might draw about the behavior of courts and court systems as they interact with other government entities, the legal profession, and the public.

In the coming days, I will offer some concrete examples of how modern organizational theory might explain (at least in part) certain court behaviors, ranging from the inclusion/exclusion of cameras in the courtroom to Chief Justice Roberts’s history lessons in his Year-End Reports.  More generally, I hope to make the case for viewing courts as protagonist organizations, actively working to secure key resources, build and maintain legitimacy, protect their core mission, and ultimately ensure their survival.  

Posted by Jordan Singer on February 7, 2017 at 03:44 PM in Judicial Process | Permalink | Comments (1)

Wednesday, February 01, 2017

In Praise of Geographic Diversity on the Supreme Court

Much ink will be spilled in the coming days, I am sure, on President Trump’s nomination of Tenth Circuit Judge Neil Gorsuch to the Supreme Court.  Here I want to weigh in on one oft-neglected but important part of Judge Gorsuch's resume: the geographic diversity he would bring to the Court.  Gorsuch is a Colorado native, and his address last night repeatedly invoked those western roots.  By contrast, most of the current Justices hail from within the so-called Acela Corridor, stretching from Boston to Washington, D.C. 

It was not always this way.  Twenty-five years ago, the nine members of the Court had spent their formative years in locales all across the country: California (Kennedy), Arizona (O’Connor), Colorado (White), Illinois (Stevens), Wisconsin (Rehnquist), Minnesota (Blackmun), Massachusetts/New Hampshire (Souter), New York (Scalia), and Georgia (Thomas).  The distribution was a bit heavy on the Great Lakes states, perhaps, and a bit light on the south-central part of the country, but widely representative nonetheless.

There are several reasons to believe that geographic diversity on the Court makes a positive difference.  More after the jump.

First, geographic diversity can raise the Court’s legitimacy with the public by increasing regional buy-in. The November election made clear that much of the country believes that federal institutions are dominated by coastal elites.  Appointing a Justice from far outside the range of the Delta/American shuttle can strengthen public belief that the Court has a national perspective.  Regional pride plays a role as well: the left-leaning Denver Post strongly endorsed Judge Gorsuch for the Supreme Court opening last week, despite his conservative credentials, noting among other things that “we like his ties to Colorado.” Just as the gender, race, religion, and philosophy of a Supreme Court nominee can drive acceptance among certain segments of the public, so too can geography create the sense that “one of our own is looking out for us.”

Second, Supreme Court appointees from different parts of the country are likely to bring specialized knowledge of certain areas of law.  The Tenth Circuit, for example, encompasses states in which the law concerning water rights, oil and gas, minerals and natural resources, skiing and winter recreation, the management of federal lands, and the state-federal relationship is both prominent and very strongly developed.  Many of these issues are likely to come before the Supreme Court at least sporadically in the coming years.  Assuming no basis for recusal, a Justice with familiarity in these areas would be a welcome addition.  The same would obviously apply for other areas of the country.

Finally, childhood and adolescent experiences—and the location of those experiences—can matter to adult decision-making.  No less than any other cultural influence, childhood geography can instill certain understandings about the world that remain with you as an adult.  As the 2007 Scott v. Harris case notoriously demonstrated, perspectives on what constitutes reckless driving may be influenced by whether one grew up in a community reliant on subways and buses or pickup trucks and rural roads.  Similarly, one’s perspective on issues related to labor, immigration, business and financial regulation, criminal justice, and so on might be affected by whether one grew up in view of factories or farms, skyscrapers or suburban malls.  Or just go ask a westerner about water – water rights, water use, water conservation.  While we would never expect or demand a Justice to vote a certain way based solely on geographic background, the ability to add a different perspective at least increases the chance that the Court will take it into account.

The geographic background of a Supreme Court nominee should not be the primary basis for his or her appointment to the Court, any more than the candidate’s gender, race or religion should be.  But it does carry both symbolic and practical value, and it’s good to see geographic balance coming back into play.

Posted by Jordan Singer on February 1, 2017 at 10:39 AM in Current Affairs, Judicial Process | Permalink | Comments (6)

Wednesday, October 19, 2016

End of the Filibuster?

In a few weeks, Democrats might manage to secure both the presidency and control of the Senate. If they do, I predict that the Senate will change its rules to allow Supreme Court nominees to be confirmed without the possibility of a filibuster – much like the Senate moved to do in 2013, when it voted to end the ability to filibuster in response to all other judicial- and executive-branch nominees. My prediction assumes that the Democrats (if they win) would prefer to take this historically significant step rather than attempt to reach bipartisan compromise over the next Supreme Court confirmation. A few different factors combine to support this conclusion. These include the precedent the Senate set in 2013; the Republicans’ ongoing refusal to consider Judge Garland’s nomination; and recent statements, such as those made by Senators John McCain and Mike Lee, suggesting that Republicans will not vote to confirm any Supreme Court candidate nominated by Hillary Clinton. (Senator McCain did attempt to walk this statement back, but that doesn’t change my assessment of how Democrats are likely to respond.) In light of these developments, which both reflect and contribute to the highly partisan political climate we’re now experiencing, I would be very surprised if the Democrats were willing to allow Republicans even the option of continuing to block a replacement for Justice Scalia. And while it's possible that, in response to a major Democratic victory, the Republicans would change tack and quickly confirm Judge Garland, new openings on the Court very well may arise between now and January 2021.

If the Democrats were to take this step, they would have the ability to appoint a Supreme Court Justice knowing that they need no support whatsoever from the opposition party. I cannot think of a precedent for this. Even contested confirmation votes (such as Justice Thomas’s vote, in 1991, which had 11 Democrats voting in favor of confirmation, or Justice Sotomayor’s vote, in 2009, which had nine Republicans voting in favor of confirmation) have included some bipartisan backing. And in most of those cases, the opposition party also had the option of resorting to a party-line filibuster. There may be an exception to this unbroken tradition of bipartisan support for successful Supreme Court nominees, but I have yet to find it. Come January 2017, if the Democrats win big, I predict this tradition will end.

This leads to a host of questions. Among them, how would such a development affect what the President might be looking for in a candidate? Would the President be willing to consider, for example, a newly minted lawyer, straight out of law school, statistically likely to serve for the next half-century? (Surely, that’s a step too far – though Justice Story, as the youngest of those joining the Court, was confirmed as a fresh-faced 32-year-old.) More realistically, might the candidate have more of a paper trail than otherwise? Be more ideologically driven?

I also wonder how a razor-thin vote, on party lines and without the possibility of a filibuster, might affect the reception of a newly appointed Justice. Given the Court’s tradition of collegiality, the other members of the Court are likely to be just as welcoming and respectful to such an addition as to any other. But what effects might such an appointment (or set of appointments) have on the legitimacy of the Supreme Court as a whole?

A third set of filibuster-related questions looks beyond the Supreme Court to what might happen if the Democrats also were to take control of the House. (Such an electoral outcome appears unlikely but not impossible.) In that circumstance, would the Senate vote to eliminate the last source of power for the filibuster – namely, its ability to require a Senate supermajority to enact legislation? I think the Senate is somewhat less likely to take this step than it is to change the filibuster rules relating to Supreme Court confirmations, but given the current polling in the House races, it’s something I haven’t spent as much time considering.

By contrast, I have been thinking quite a bit about the various questions surrounding the filibuster and Supreme Court appointments. Because I do think there’s a decent chance we'll soon see a landmark change in how this process works. 

Posted by Lisa Manheim on October 19, 2016 at 12:55 AM in Current Affairs, Judicial Process, Law and Politics | Permalink | Comments (9)

Monday, October 03, 2016

The Nightmare Scenario: Trump v. Clinton at the Supreme Court

It's the first Monday in October, so attention has turned to the new term of the U.S. Supreme Court.  Predictably, many stories, such as this excellent N.Y. Times Editorial, point out the unprecedented nature of the Senate Republicans' refusal to consider the nomination of Judge Merrick Garland.  That Times Editorial also highlights the downsides of a less-than-full Court on voting rights issues:

Meanwhile, some of the nation’s most pressing legal issues are awaiting substantive rulings by the court. Most urgent among these are lawsuits against the efforts of Republican legislatures to suppress voting by minorities, young people and others who tend to vote Democratic.

For example, in July a federal appeals court panel struck down a 2013 North Carolina law that one election-law scholar called "possibly the largest rollback of voting rights" since 1965. That court found the law had been enacted intentionally to reduce black voter turnout.

North Carolina appealed that ruling to the Supreme Court, which split 4-to-4 without issuing any explanation, meaning that the lower court’s decision was upheld. While that was the right result, a full court could have set a legal standard on voter suppression efforts that would have applied nationwide.

Missing from this analysis is the nightmare scenario: a disputed presidential election that goes to the courts.  Call it Bush v. Gore, round 2: Trump v. Clinton.  The more Donald Trump suggests that he will not accept the results of a Clinton win, the more likely this could occur.

Let's say that there are disputed ballots in Florida, Ohio, Colorado, or another state with a close result.  Trump contests the election through whatever procedures the state has created (detailed here).  The final step is the Supreme Court.  And the Court ties 4-4.  That result would simply affirm the lower tribunal's decision, without a precedential opinion.  If people think Bush v. Gore was illegitimate -- or at least overly partisan -- then this would be 1000 times worse.  

Not many people are discussing this nightmare scenario, probably because the likelihood is fairly small that the Court would take the case.  Chief Justice Roberts surely would try to avoid harming the legitimacy of the Court by, in essence, deciding another presidential election, especially one so hard fought and vitriolic.  The Court would likely try to stay out of it -- which itself could be problematic depending on what happens in the lower courts.

But this scenario is not entirely implausible.  And it keeps me up at night.

 

Posted by Josh Douglas on October 3, 2016 at 09:58 AM in Judicial Process, Law and Politics | Permalink | Comments (6)

Friday, September 30, 2016

How Does an 8-Member Court Decide Bush v. Gore?

Thanks to Howard for organizing this discussion about the upcoming election. I’m excited for the conversation.

As if this particular election cycle needed more complications, a massive obstacle faces courts and litigants (and, by extension, everyone else): the Supreme Court remains shorthanded. In a world of unanimity, this wouldn’t pose too many problems. But in election law, where opinions are lengthy and consensus is fleeting, you’re lucky if you get a majority opinion, much less anything that garners the support of more than five justices. (See, for example, the many messy splits in the Court’s landmark decisions in this area.)

As a result of these deep fractures, the Supreme Court’s response to the impending election might be summed up as: paralysis. An illustration emerges from North Carolina, where plaintiffs allege that the state enacted voting restrictions with racially discriminatory intent. In an opinion issued two months ago, the Court of Appeals for the Fourth Circuit agreed—and in an effort to stay the mandate, the defendants filed an emergency application with the Supreme Court. This is an important case, with considerable practical and legal implications. The Supreme Court’s response? It needed only three sentences to tell us the single thing it could agree on: right now, it can’t count to five.

It is, of course, not unusual for the Supreme Court to dispose summarily of emergency applications. But usually that is because at least five Justices agree that such treatment is warranted. Cases like the one from North Carolina, by contrast, are now turning on a fundamentally different calculation: will the Justices’ 4-4 split once again preclude a decision that could even possibly change the status quo? This problem—somewhat obscured by the posture of the North Carolina case, which was presented to the Supreme Court as a stay application—becomes even clearer once the Supreme Court has granted cert, which only requires four Justices. A petitioner very well might have its petition granted and its argument heard, but if all it can muster is a tied vote, it will never get anything it’s asking for.

This problem already has knocked the wind out of multiple cases; the last Term was defined “as much by what the Court did not decide as what it did.” Given how fractious the Supreme Court has been in the election-law context, the problem of the 4-4 split is likely to dominate this area with particular potency.

There are several ways the Supreme Court might respond to such a problem. It might attempt to minimize the appearance of paralysis by refusing to entertain cases on discretionary review and by declining to note dissents when summarily disposing of others. As Will Baude has explained, these sorts of orders reveal very little about the Court’s inner workings, including with respect to each Justice’s assessments of the merits. Alternatively, the Court might dispose of such cases through enigmatic, compromise opinions that accomplish little more than a remand. This is what the Supreme Court appeared to do a few months ago, for example, in Spokeo v. Robins, a terrifically impenetrable case on standing that initially seemed like it might have blockbuster potential. (Another high-profile example of this approach emerged out of the ACA-related dispute in Zubik.) Or the Court might do what it did in the case discussed above. It might acknowledge, quite openly, that it cannot do its job. In the North Carolina case, this distress signal was tapped out through the four noted dissents, which countered (but did not offset) the four justices voting to deny. Earlier in the Term, in the context of several deeply important cases that needed, but did not receive, resolution, the Court accomplished the same through a stark statement, framed in blank-page white: “The judgment is affirmed by an equally divided Court.”

How the Court responds each time it faces this problem will depend, as it should, on a number of case-specific considerations. Overall, however, I think that the best approach tends to be the third. Masking its own paralysis may suggest consensus, a value that we know the Chief Justice favors, but it risks confusing the courts and others watching to figure out where the law might be headed. It also makes it harder to determine—and, as appropriate, to protest—the effects of the nomination deadlock. Taking the second approach and issuing a compromise opinion, like the Court appeared to do in Spokeo, provides the litigants with at least some resolution, but the inscrutable decisions that emerge barely accomplish even this, and they threaten to muddle the case law in a way that will confound even after the Court reaches full capacity. Taking the third approach—openly acknowledging that, in this context, the Court is failing—seems to be the most effective way for this eight-member body to accomplish what little it can right now: signaling that it needs help, and minimizing the harm going forward.

Posted by Lisa Manheim on September 30, 2016 at 11:13 PM in Current Affairs, Judicial Process, Law and Politics | Permalink | Comments (3)

Friday, September 02, 2016

Which Part of the Constitution Prohibits Wrongful Detention?

If a cop fabricates evidence against you, and you’re held in jail for 47 days, have you suffered a constitutional violation?   Believe it or not, that’s an open question—or as I’ll explain, a partially-open question.  And it’s also a question that the Supreme Court will answer in Manuel v. City of Joliet, which will be argued at the outset of the Court’s term in October.

A quick squib on the facts: Elijah Manuel was a passenger in a car driven by his brother in Joliet, Illinois.  The cops pulled the car over, pulled Manuel out of the car and seized a bottle of pills in his pocket. (The cops also allegedly used excessive force during the stop, but that’s not at issue in the S.Ct. appeal.) The officers field tested the pills and said that they contained ecstasy.  The thing was, the pills did not contain ecstasy; the field test came back negative for a controlled substance.  The officers arrested him anyway and stuck to their story that the pills contained ecstasy.  When they got back to the station, the officers gave the pills to a technician who tested them again. Like the field test, this test showed nothing unlawful about the pills.  And also like the first test, the technician lied about the results.  So Manuel sat in jail.  Forty seven days later, after his attorney requested a copy of the lab report and the fraud was discovered, Manuel was released.

Manuel brought a § 1983 suit against the officers.  Sounds like a good suit, right?  I mean, there’s gotta be claim in there somewhere, doesn’t there?  Maybe not. 

Part of the problem with his case owes not to constitutional law but with the applicable statute of limitations. Wallace v. Kato holds that false imprisonment begins at the moment of wrongful detention and ends at the moment when legal process is provided (usually pursuant to a initial appearance or something akin to that).  Unfortunately, Manuel filed suit more than 2 years after his initial appearance.

But he was in jail long after his initial appearance.  Does he have a claim for that?  That’s the issue the Supreme Court will decide.  Constitutionally speaking, one can imagine three types of claims: (1) a substantive due process claim, (2) a procedural due process claim, and (3) a Fourth Amendment claim.  The first possibility—substantive due process—is off the table under Albright v. Oliver.  So that leaves procedural due process and the Fourth Amendment. 

Manuel thinks he has a Fourth Amendment claim.  The Fourth Amendment says, in effect, don’t seize people unless you have probable cause.  Manuel was seized for 47 days (though his claim for some of those days is time barred under Wallace v. Kato).  So he should have a claim, right?  The City of Joliet argues, to simplify it greatly, that the Fourth Amendment is aimed at cops, not prosecutors.  Once you are arrested and enter the justice system, the Fourth Amendment falls away and your right to be free from unlawful detention is basically procedural due process right.  Fair enough, but why doesn’t Manuel just bring a procedural due process claim?  The reason is that, under Parratt v. Taylor, a procedural due process claim does not accrue unless the claimant lacks a post-deprivation remedy.  And Manuel had a post-deprivation remedy here—a state law malicious prosecution claim (which, unfortunately, is probably time-barred now).  Thus, Joliet’s position is that no constitutional violation occurred (at least for the period of detention following his initial appearance). 

Thus, at its heart, Manuel is about where the Fourth Amendment drops off and procedural due process picks up.  My own view is that instead of talking about when the Fourth Amendment drops out of the picture as a matter of criminal procedure, why don’t we talk about it in terms of proximate cause? (Courts deciding Section 1983 cases routinely borrow tort law principles and proximate cause issues come up all the time.)  That is, why not ask whether the officers’ Fourth Amendment violation proximately caused Manuel’s detention? In this case, it’s clear that it did. Moreover, proximate cause principles also help sort out what should happen as the case proceeds through the system.  For example, suppose that the cops came clean to the prosecutor in this case but the prosecutor continued with the prosecution.  The officers would have a good argument that the prosecutor’s actions amounted to an intervening cause that cut off their liability. 

Finally, proximate causation solves one of the more difficult problems in these cases.  In some cases, the defendants don’t just spend 47 days in jail as a pretrial detainee, they spend years in jail as a prisoner.  If we look at this in terms of Fourth Amendment v. Due Process Clause, it’s hard to see how the Fourth Amendment should apply to a prisoner who’s sitting in jail 20 years after his arrest and trial. But if we look at it in terms of proximate cause, we don’t have to engage in some parlor game about whether the Fourth Amendment “applies” to people in jail.  

Don’t look for the Court to take a proximate cause approach.  The Court has gone far enough down a different road that it would be too difficult to back up and use a proximate causation rule.  If I had to make a prediction, I’d expect Manuel to win—mainly because there’s a 10-1 circuit split in his favor and because the SG filed a brief on his behalf.  Cutting against him is that the case will probably be heard by 8 justices and Kennedy wrote a concurring opinion in 1994 stating that wrongful detention after an initial appearance would state a procedural due process claim. 

 

Posted by Jack Preis on September 2, 2016 at 09:58 AM in Constitutional thoughts, Judicial Process | Permalink | Comments (18)

Thursday, August 11, 2016

IP, The Constitution, and the Courts - IPSC 2016

IPSC 2016 - Breakout Session III - IP, The Constitution, and the Courts

Lexmark and the Holding Dicta Distinction – Andrew Michaels

A Problem of Subject Matter: Patent Demand Letters and the Federal Circuit’s Jurisdiction – Charles Duan & Kerry Sheehan

Established Rights, the Takings Clause, and Patent Law – Jason Rantanen

A Free Speech Right to Trademark Protection? – Lisa Ramsey 

Lexmark and the Holding Dicta Distinction – Andrew Michaels

How do we distinguish dicta from holding? This project uses the Federal Circuit's dispute in Lexmark (on remand) over the breadth of the holding in Quanta. As Paul Gugliuzza summarized it for me (I was a late arriver), Michael's argument is that, rather than treating holding/dicta as a binary distinction, we should envision a spectrum of the types of things that courts say in their opinions. 

A spectrum approach to holding v. dicta might helpfully restrict courts. If a holding says "No red convertibles in the park", we might worry about a case where a subsequent court says the opinion requires a holding of no vehicles in the park. They are not unrelated, but perhaps still dicta. Broader statements should have less capacity to bind than narrower holdings.

Jason Rantanen: This is interesting. We often see doctrinal pronouncement in Federal Circuit's case, much broader than necessary to decide the case. We also see language from earlier court opinions that are clearly dicta. Panels in the Federal Circuit nevertheless use it later. I wonder, however, whether we should take into account how the court is using the language. For example, do we bind the court to holding language only, or might they be appealing to the persuasiveness of early reasoning. Your spectrum focuses on text as it appears in the early opinion, but is that too narrow? Can dicta apply? 

Andrew - Sometimes dicta is well considered. But if the court pretends it's a holding, and acts as if it is bound, then they are failing to adjudicate the dispute, and that's a problem.

Paul Gugliuzza - I think the Federal Circuit may engage in some over-use of dicta. Is there a prescriptive payoff to this spectrum? How does the court determine whether to follow the statement or not?

Andrew - The payoff is to require courts to deal more directly with the question of dicta.

Pam Samuelson - I think it's interesting when dicta becomes a holding, over time, and solves a problem. For example, the 3rd Circuit (Whelan) case had a lot of broad dicta that led to a lot of litigation. But the 2d Circuit also included a lot of dicta in Computer Assocs. v. Altai, and the dicta from the that case seems to have knocked out Whelan, and been followed, correctly from Pam's view, in many other circuits.

A subsequent observation from Paul: I think the spectrum provides an interesting descriptive contribution, but I wonder whether, instead of arguing whether a statement is holding or dicta, we'd just end up arguing about (1) where on the spectrum a particular statement falls and (2) whether, given its location on the spectrum, it's binding law or not.

 

A Problem of Subject Matter: Patent Demand Letters and the Federal Circuit’s Jurisdiction – Charles Duan & Kerry Sheehan

States are passing laws designed to cabin patent demand letters. We might presume that the Federal Circuit has primacy, but this paper argues the question isn't so cut and dried. The Supreme Court, in a case about attorney malpractice, held that there should be a balance struck between the interests of the federal courts and the state's consumer protection laws.

In a demand letter case, we could ask whether 1) this raises a sufficient issue of federal patent law, and 2) is the law unconstitutional or improper. To understand the second question, look to the Federal Circuit's Globetrotter case. The patent holder threatened to send letters to the defendant's clients. The defendants sued for tortious interference, and Fed. Cir. held that the Patent Act preempted acts that prevent sending demand letters.

We argue there is an odd disconnect in the Federal Circuit's analysis. It's a mistake that makes the Federal Circuit's jurisdiction appear larger than it is.

What is the right policy outcome? Should the Federal Circuit have primacy here? The uniformity issues that inspired the creation of the Federal Circuit doesn't necessarily reach every case that touches on patent law, and perhaps these demand letter cases are outside the needs of the uniformity requirement.

Jake Linford: I'm unclear on where the line is between the stuff the Federal Circuit controls and the stuff it doesn't. It sounds circular to me. Help me understand.

Charles: The Supreme Court doesn't take the view that the Federal Circuit is the final arbiter of all patent issues. The Christensen and Gund cases are examples where the Supreme Court put the responsibility with the Seventh Circuit and Texas courts respectively. Questions of validity of the patent may go to the Federal Circuit, but not claims about a clearly invalid patent.

Lisa Ramsey: One of the reasons this is so important is because people will get different results before a state court than the Federal Circuit. Is that right?

Charles: It's unclear. If we sort some cases for the Federal Circuit and others for the states, we might get divergent outcomes.

Pam Samuelson: How does the issue of validity of the patent get to the Federal Circuit if the case starts in state courts? 

Charles: Removal is the mechanism. 

Pam: If so, then how do we take the ability of the Federal Circuit away? If the Federal Circuit decides whether it has jurisdiction...

Charles: Perhaps the Supreme Court takes cert?

Paul Gugliuzza: What triggers the arising under jurisdiction of the patent clause? Isn't this a matter of patent jurisdiction?

Charles: I'm not sure this meets the Constitutional language...

Paul: The Federal Circuit may rely on Globetrotter, even if I disagree with them. 

 

Paul Gugliuzza sent me the following summary of the Duan - Sheehan paper, which I find much better than my own:

The paper focuses on state law tort/unfair competition claims against patent holders, such those brought under the new anti-troll statutes adopted in over half the states.  As a substantive matter, Duan and Sheehan criticize the Federal Circuit for giving patent holders nearly absolute immunity from civil claims based on their enforcement behavior, an issue I’ve written about here:  http://ssrn.com/abstract=2539280.  As a matter of institutional policy, they argue that the Federal Circuit is poorly suited to assess the constitutionality of laws regulating patent assertions because the court has embodied various problems theorized to be associated with specialized courts, such as rule-orientedness, a detachment from broad policy concerns, and, perhaps most importantly, capture.  The Federal Circuit’s orientation toward patent holders, they seem to be arguing, would make the court too suspicious of government efforts to regulate patent holders.  Accordingly, they make a doctrinal argument that a challenge to the constitutionality of an anti-troll statute does not “arise under” patent law, as is required for the Federal Circuit to have appellate jurisdiction.  
 
I’m not sure about this.  I agree that, after the Supreme Court’s 2013 decision in Gunn v. Minton, a civil case challenging patent enforcement behavior does not “arise under” patent law.  The embedded patent law issues would be about the validity or infringement of a particular patent—the sort of case-specific issues that are not sufficient to create “arising under” jurisdiction.  But, in my mind, there’s a distinction between those case-specific issues and those that would be raised by a counterclaim seeking a declaratory judgment that a state anti-troll law is unconstitutional.  I suspect the Federal Circuit would say that THAT claim DOES “arise under” patent law, as it raises the issue of whether federal patent law “preempts” state law.  After the AIA’s so-called Holmes Group fix, that counterclaim would be sufficient to confer jurisdiction on the Federal Circuit.  Perhaps a better argument against Federal Circuit jurisdiction is that the federal issue is not preemption by the Patent Act, but the constitutionality of the statute under the First Amendment.  In that circumstance, the case would arise under federal law, but perhaps not federal PATENT LAW, meaning that the Federal Circuit would NOT have jurisdiction.  (In the article linked above, I argue that the Federal Circuit has erroneously stated that immunity for patent holders is about “preemption” of state law when, in fact, the court is actually drawing on the First Amendment right to petition to the government.)  In any event, this is an interesting and provocative project.  And if you’re still reading at this point, cheers to you for your commendable enthusiasm about patents and procedure!

 

Established Rights, the Takings Clause, and Patent Law – Jason Rantanen

Recent arguments have suggested that when patent laws change, the takings clause may be implicated. I wanted to understand the analytical reasoning behind the takings claim. Takings case law is a deep, Alice-in-Wonderland rabbit hole.  How does it actually apply to patent law?

1) Jason agrees that patents are property subject to takings clause. (The Federal Circuit said no, in Zoltec, when the government infringes the patent. The Supreme Court, instead, suggested in dicta in the raisin takings case, that patents are the type of property subject to the takings clause)

2) But it's inappropriate to cut and paste takings case law to patent cases. Patents aren't like rights in real property. We know what a takings of a coal mind looks like. Patents aren't the same. In addition, one key right "taken" is the right to use, and the patent holder doesn't lose the right to use, only the right to exclude or alienate. So application of standard takings cases is difficult.

3) The question is instead whether the new law changes or destroys an "established property right" in the patent. That's the taking, if there is one. What's an established property right? The type associated with property, established with a high degree of legal certainty. See, for example, the Penn Central case, where the Supreme Court is looking for certain rights. If we are looking for high degree of legal certainty, many aspects of patent law has changed significantly and frequently over time. Patent has replaced the entire statutory framework at least four times, with only very minor exceptions. For example, when Congress passed the 1836 Patent Act, it replaced the prior act, and also applied the new act to pending litigation. There are many similarities, but this is a new draft. Same with the 1952 Act: "It shall apply to unexpired patents." Damages changed dramatically, as summarized in Halo v. Pulse. Patent owners used to get treble damages automatically, and they don't anymore. Patent holders in 1836 lost that right while claims were pending.

Lisa Ramsey: One argument against cancellation in the Redskins case is takings. 

Jason Rantanen: The Redskins case considers whether the right was valid in the first place, which falls outside of standard takings analysis.

Camilla Hrdy: You may want to consider why the Supreme Court has held a trade secret can be taken. If so, why not a patent?

 

A Free Speech Right to Trademark Protection? – Lisa Ramsey 

The Federal Circuit recently held that the 2(a) bar against registering disparaging trademarks is unconstitutional. Lisa's paper aims to make two unique contributions to literature on disparaging trademarks and the First Amendment:

  1. Is there a right under international treaties to be able to register a disparaging or scandalous trademark? The answer is no.
  2. A framework of six elements that should be applied in deciding whether laws against offensive trademarks run afoul of free speech rights.

The U.S. is not the only country that bans registration of scandalous marks. Canada even bans use. 

We are members of the Paris Convention, which gives signees the discretion to decide whether to deny a registration on the grounds that a mark is contrary to morality or public order.

Lisa's framework (and 2(a) seems to meet most of these conditions):

  1. Is there government action? Who regulates the expression?
  2. Suppression, punishment, or harm: How does the regulation harm expression? Are there unconstitutional conditions imposed on speakers by denying the benefit? Lisa says no, because the benefit being denied is the right to restrict the speech of others.
  3. Expression. What is being regulated?
  4. Is this individual or government speech? Whose expression is regulated?
  5. No categorical exclusion for the expression: Is the regulation justified because of a categorical exclusion, like obscenity or misleading commercial expression?
  6. Does the regulation fail constitutional scrutiny? Is it content-neutral or content-based? That triggers different levels of scrutiny in the U.S.

What could the Court do if it wants to uphold 2(a)? 1) Say it's not suppression or punishment, and the unconditional conditions doctrine does not apply, under factor 2. 2) It satisfies the scrutiny under 6. 3) Make a "traditional contours" argument like in Eldred and Golan. 

Saurabh Vishnubhakat: Pushing on Lisa's state action analysis, if we apply Shelly v. Kramer broadly (where the Supreme Court refused to allow the enforcement of racially restrictive covenants in court, and which may be limited to its fact), that may suggest everything is potentially a state action?

Rebecca Tushnet: If the Court is taking a "hands off" approach to conflicts between trademarks and the First Amendment, then doesn't hands off mean no registration? Isn't that state action?

Lisa: It is state action.

Rebecca: Then isn't everything state action.

Lisa: There are real benefits to registration that impacts the first amendment. Demand letters work better when backed by a registration. And when you have a registration, it's easier to push claims that some see as questionable, like dilution and merchandising cases.

Charles Duan: When it comes to disparaging marks, those have particularly strong expression value - used to express feelings, and therefore even worse to restrict than other registrations.

Lisa: Exactly!

Pam: Is there an international standard?

Lisa: No, as I read the law, each country has discretion to set up the system it prefers.

Posted by Jake Linford on August 11, 2016 at 08:45 PM in Blogging, Civil Procedure, Constitutional thoughts, First Amendment, Information and Technology, Intellectual Property, International Law, Judicial Process, Property, Science | Permalink | Comments (0)

Thursday, June 09, 2016

Law, Psychology, and Impartiality

Donald Trump's suggestion that Judge Curiel should recuse himself seemed obviously wrong to me (and apparently to his own lawyers, who, as Neal Goldfarb pointed out in response to my prior post, did not even bother to raise the issue by motion). But today's Supreme Court decision in Williams v. Pennsylvania  raises all the difficult questions that the Trump University lawsuit does not about when disqualification is required because a judge's "impartiality might reasonably be questioned." Richard Re also has more here at SCOTUSBlog.

On the face of it, the main questions are fairly straightforward. The District Attorney who personally approved the decision to seek the death penalty in Williams' case was later elected to be Chief Justice of the Pennsylvania Supreme Court. Decades after the original conviction, he was part of a panel that ruled against Williams' subsequent habeas petition. The Pennsylvania Code of Judicial Conduct--based on the ABA's Model Code--forbids judges from acting in a case where they  "served as a lawyer in the matter in controversy, or w[ere] associated with a lawyer who participated substantially as a lawyer in the matter during such association." Chief Justice Castille participated in the Pennsylvania Supreme Court's ruling shortly before his retirement. After his retirement, the Court considered--and rejected--a motion for rehearing. 

The first question before the Court was whether the violation of this rule would amount to a violation of constitutional due process. The Court, in an opinion authored by Justice Kennedy, held that it did: "Where a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level."

The second question that the Court had to decide was whether the judge's participation in the Pennsylvania Supreme Court decision amounted to harmless error, given that the ruling was unanimously decided by a multi-member court. This, to me, is a much more difficult question. The Court held that harmless-error review was not appropriate, as the disqualified judge could have influenced the other members of the panel, and " it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process."

Chief Justice Roberts, joined by Justice Alito, wrote a dissenting opinion arguing that due process does not require recusal when the petition does not allege that the judge had  "any previous knowledge of the contested facts at issue in the habeas petition, or that he had previously made any decision on the questions raised by that petition." (emphasis in original).

Justice Thomas also wrote a dissenting opinion. He pointed out that the due process requirements of criminal proceedings are and should be different that those required by later habeas proceedings (a form of civil action), and argued in favor of greater deference to the relevant rules and legislative enactments. He also pointed out that the Pennsylvania Supreme Court's earlier decision to deny rehearing in the case--a decision made after Chief Justice Castille had retired from the court--might have "cured" the alleged due process violation.

So what, in my mind, makes this case so hard? Some of it involves law, politics, and difficult recusal issues.

(1) The Commonwealth argued that it was unreasonable to think that Castille would be biased given the amount of time that had gone by and given his relatively limited participation in the case. The murder at issue occurred in 1986, and the Pennsylvania Supreme court decision was issued in 2014. And although Castille had to personally sign off on the decision to seek the death penalty, the Commonwealth's brief called that an "administrative act," as Castille would have deferred to the prosecutors who worked up the case. But, as Justice Kennedy points out in the Supreme Court's opinion, this characterization of Castille's role is at odds with how he portrayed his role as district attorney when he ran for judge, as "multiple news outlets reported his statement that he 'sent 45 people to death rows' as district attorney." Perhaps this was mere campaign puffing, but it is hard for the state to walk back Justice Castille's involvement at this point. I am also personally troubled that the death penalty has become so politicized that these decisions have become effective fodder for judicial campaigns.

(2) The Supreme Court's decision points to the possibility of unconscious bias, a topic very deftly argued in an amicus brief by Yale's Ethics Bureau (and spearheaded by Lawrence Fox). But if the Court takes seriously the risk that a judge, in the Court's words,  "would consciously or unconsciously avoid the appearance of having erred or changed position" taken as a prosecutor, than isn't that doubly true of the current justices on the Pennsylvania Supreme Court? If we believe that Chief Justice Castille could have tainted the panel's decisionmaking, then wouldn't we expect the remaining judges on the Pennsylvania Supreme Court to be subject to the same unconscious bias hindering a change of position? One of my favorite social science articles suggests that people are very bad at identifying their own biases--and, in fact, that further reflection upon possible biases only makes people believe even more strongly that their views are neutral and unbiased--even when the evidence would suggest otherwise.  See Cynthia McPherson Frantz, I AM Being Fair: The Bias Blind Spot as a Stumbling Block to Seeing Both Sides, 28 BASIC & APPLIED SOC. PSYCHOL. 157 (2006)

(3) The underlying facts of the case are especially tragic, and show how various factors (including social stigma, overworked defense lawyers, and overly zealous prosecutors) can combine to create a miscarriage of justice. Williams, the defendant, was subjected to sexual abuse between the ages of 13 and 17. He later committed two murders--one at age 17 and one at age 18--and there was substantial evidence that both of the men he murdered were among those who had raped him. More importantly, the prosecutor's office knew that history, according to later-released notes stating that Williams' "relationship" to the two victims was "substantially similar." Williams' first attorney used that information as mitigation evidence in the trial for the first murder, and the jury returned a verdict of third-degree murder. In the trial for the second murder, however, Williams had new counsel and seemingly did not tell his attorney of this history. Perhaps a better attorney would have done a more careful job with the client interview and drawn out that information; certainly a better attorney would have examined the earlier proceedings. But for whatever reason, Williams' second attorney did not, and Williams himself testified falsely at trial that he had no earlier connection with the murder victim. All of this led to issues in the later habeas proceedings, including whether the defense attorney provided ineffective assistance of counsel and whether the prosecutor committed a Brady violation by failing to turn over evidence of the prior sexual abuse. Justice Thomas notes, in footnote 2 of his dissent, that it's an interesting question whether "a prosecutor could violate Brady by failing to disclose information to the defendant about the defendant’s motive to kill." Clearly, Williams knew of the prior abuse. But the stigma surrounding that abuse--particularly in the 1980s--may have hindered his willingness to raise the issue even when faced with a potential death penalty. But untangling the web of responsibility here is a difficult one: Williams admittedly committed perjury in the second proceeding; his attorney, at a minimum, did a bad job investigating the facts of the case; and the prosecutor knew of relevant mitigating evidence that defense counsel did not.

(4) Finally, I have to note one of the most offensive items from the briefing in the case. The Commonwealth's brief to the Supreme Court, at page 10, gratuitously  goes out of its way to describe Williams as "a double murderer who had sex with men for money." Given that he was between the ages of 13 and 17, Williams was below the age of consent for the majority of the time period at issue. Not only is this statement offensive (as has been repeatedly noted, "Sex without consent isn’t sex. It’s rape."), it is also terrible advocacy. Point out Williams' responsibility to testify honestly; point out that sexual abuse does not justify murder. But disparaging a child as young as thirteen for his own rape only perpetuates the stigma associated with sexual abuse and trafficking and stops other victims from coming forward before the tragedy cascades further. 

Posted by Cassandra Burke Robertson on June 9, 2016 at 04:19 PM in Judicial Process, Law and Politics | Permalink | Comments (3)

Wednesday, May 04, 2016

Judicial vacancies

Two items worth checking with respect to federal judicial vacancies:

First is the new episode, The Hold Up, of the Life of the Law podcast, exploring the problem of vacancies in the lower federal courts. The piece focuses on Chief District Judge W. Keith Watkins of the Middle District of Alabama, who is the only active judge in the district (three are authorized) and is running the district with two senior judges (one of whom just had surgery) and six magistrates.

Second is this report from the Congressional Research Service, analyzing Merrick Garland's jurisprudence on the D.C. Circuit and trying to predict what he might do on the Supreme Court.

Posted by Howard Wasserman on May 4, 2016 at 04:08 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, January 31, 2016

The Supreme Court, On Demand

It has become almost a yearly rite: Congress introduces a bipartisan bill to require television cameras in the Supreme Court. The Justices express their concerns about the proposal. High-minded words are exchanged about the dignity of the courts versus the public’s right to know. Eventually the bill dies in committee.

The traditional arguments for cameras, such as public interest in following high-profile cases, or general appeals to transparency, are unlikely to resonate with the Court any more this year than in years past. But there is another case for Supreme Court cameras, and it stems from the federal judiciary’s own highly successful cameras program in the district courts.

In 2011, the Judicial Conference of the United States authorized a pilot program for periodically recording civil proceedings in fourteen federal district courts.  The proceedings are then uploaded to the U.S. Courts website, where they are indexed and accompanied by additional information on the case. The entire process is conducted by the courts themselves, without media cameras or external video processing. The result has been a video library of hundreds of proceedings, ranging from pretrial conferences to summary judgment hearings to multi-day trials. The videos have been viewed hundreds of thousands of times.

The success of the district court pilot, which I explore in  much more detail here, offers an excellent blueprint for a parallel Supreme Court program.

First, as the district court pilot has shown, both practicing lawyers and ordinary citizens stand to learn a great deal from actually watching Supreme Court proceedings. Watching the Court in action educates those in the legal profession about procedures before the Court, the issues of particular interest to the Justices, and ways in which an attorney might capture the interest and attention of the Court. For the public, watching the Court in action is all the more important: rather than allowing journalists and comedians define the Court’s work after the fact, the public can go straight to the source. Many studies suggest that watching an event on video (whether delayed or through live streaming) carries many of the cognitive benefits accrued from watching a live event. Whether the public would take advantage of this educational opportunity in any serious way is an open question, but at least that opportunity would exist.

Second, a recording (and/or live streaming) program would bolster the Court’s public legitimacy, by openly demonstrating the court’s commitment to transparency and accountability. Public support for the Supreme Court has been hovering at or below 50% for much of the past decade. At the same time, the public is increasingly seeking information through screen time. Watching the Court in action can demystify the judicial process and reduce public reliance in the messaging of politicians, reporters, and editorial writers. Supreme Court Justices, like all federal judges, are public servants. If they are proud of their work, they should welcome public viewing.

Finally, it suggests how the courts can achieve these educational and transparency goals without relying on the news media—the primary public concern of the Justices. Just as cameras have been placed in unobtrusive locations within district courtrooms, and the final recordings made available on the courts’ website, so too can recordings of Supreme Court proceedings be made available on its website, accompanied by rich contextual matter. The Supreme Court can also easily provide live streaming of oral arguments and case announcements without threatening the dignity or solemnity of the proceedings. Indeed, it may avoid the alternative, John Oliver-style, treatments. If the Court really wants to have some control over its own message, it cannot close its eyes and ears to the realities of the twenty-first century.

At least, we can hope.

N.B. -- The district court program has been an excellent resource for my teaching, and I recommend it highly for others whose students cannot as a practical matter visit the courthouse to observe proceedings.

Posted by Jordan Singer on January 31, 2016 at 12:14 PM in Judicial Process, Law and Politics, Television, Web/Tech | Permalink | Comments (7)

Thursday, January 07, 2016

Speaking of judicial selection...

Arizona has a new merit-selected supreme court justice, Clint Bolick.  And he has a scorpion tattoo on his index finger.

Posted by Jordan Singer on January 7, 2016 at 09:54 AM in Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, January 04, 2016

The Last Days of Elected Judges (1966 edition)

Yes on 3

Happy New Year! It’s great to be back at Prawfs for another go-round. I thought I would start with an unusual find: while cleaning out my parents’ basement last month, I came across a yellowed but otherwise pristine copy of the Intermountain Jewish News, dated November 4, 1966. The IJN was (and is) a significant paper for the Jewish community in Denver and the Rocky Mountain West, and the edition I found was printed just days before the November 1966 general election—the last time that Colorado’s state judges would run for office. In that same election, voters passed Amendment 3, which ushered in a merit selection system: judges would henceforth be chosen by the governor from a slate prepared by a nonpartisan nominating committee, and subjected to retention elections at the end of their terms. Put another way, on Election Day 1966, Colorado voters chose their judges at the ballot box while simultaneously removing their ability to do so in the future. Fifty years later, that 1966 edition of the IJN provides a nice snapshot of a judiciary—and an electorate—struggling to balance a tradition of direct democracy with the promise of fair and impartial courts.

Colorado was the fifth state to adopt a merit selection system, and advocates of merit selection had to overcome both 90 years of state history (judges had always been directly elected) and the sense that nothing was particularly wrong with the existing system. There had been relatively little scandal or symptoms of crisis in the state judiciary in the 1950s and 1960s. Indeed, many of the men on the judicial ballot that November were widely viewed as persons of integrity, excellent jurists, and dedicated contributors to civic life. Sherman Finesilver, then seeking reelection to a state trial court position in Denver, would later serve nearly a quarter-century on the federal bench. Mitchel Johns was an active member of the local Elks lodge, and Saul Pinchick an active member of B’nai B’rith. Neil Horan, already an experienced incumbent, would survive the 1966 election and later preside over litigation concerning Colorado voters’ rejection of the 1976 Winter Olympics.

Pinchick

It was hard enough just to get merit selection on the ballot. The Colorado Bar Association (CBA) had recommended the end of partisan judicial elections as far back as 1940, when Missouri became the first state to adopt the merit selection system. But proposed ballot initiatives failed to make it through the Colorado legislature in 1949, 1957 and 1959. Still, support slowly grew. When yet another effort by the CBA failed in the legislature by one vote in 1965, the CBA and the League of Women Voters took to the streets and collected more than 47,000 signatures in favor of the ballot initiative. Merit selection, in the form of Amendment 3, would finally be up for a vote in 1966. It proposed sweeping changes to the Colorado Constitution, replacing direct election of judges with a system of nominating commissions, gubernatorial selection, retention elections, and formal judicial disciplinary measures.

The debate over Amendment 3 was vigorous and vocal in the months leading up to the election. Proponents urged adoption as a means of improving the overall quality of the judiciary, promising that judges would not be prone (or at least less prone) to the pull of partisan politics, and that nonpartisan nominating commissions could focus on finding the best people for the job. (Indeed, in a somewhat Pollyanna-ish take, proponents argued in the state’s 1966 voter guide that under merit selection, “The courts would be completely removed from politics.”) Opponents urged that citizens should not give up their right to directly choose judges, a method that both held judges directly accountable to the people and checked the influence of the governor on the judiciary.

The judicial candidates were caught in the middle of the debate. Amendment 3 was premised in part on the notion that elected judges were inferior to appointed ones. Candidates had to show that they were qualified and impartial, even as they had to work within the existing party system to have a chance at success. They walked this tightrope by tailoring their campaign ephemera for the most part to avoid any hint of politics--a strategy still used by judges even in highly partisan election states today. Only three of the ten candidates placing ads in that November 1966 edition of the IJN made mention of their party affiliation. Most emphasized only their professional qualifications: experience, professional skills, and ties to the local community.

Election Day proved to be a mixed bag for the incumbents. Justice Edward Day, a Democrat, was reelected to the state supreme court by the skin of his teeth, coming in third in the race for three open seats behind two Republican challengers. Justice Albert Frantz, who had each been elected in 1956 as part of a near-sweep by the Democrats, was not so lucky. He placed fourth in at-large balloting, just a few thousand votes behind Day, and lost his seat. The trial judges highlighted here—Pinchick, Horan, Johns, and Finesilver—were all reelected and became long-serving jurists.

Frantz

Amendment 3 also fared well on Election Day, passing by a margin of 53% to 47%. One key to victory for the merit selection proponents was the emphasis on retention elections: voters were not being asked to give up their franchise, but rather to exercise it in a different, ostensibly less partisan, way. It no doubt helped reformers as well that voters in 1966 reelected John Love, a popular and trusted governor, who would be charged with the final appointment decisions under the new system.

There are some useful lessons to be drawn from this history. Colorado’s shift in 1966 was certainly in part a product of bar association’s determination, the state’s political culture, and the era itself. But merit selection was also possible because it was presented as an integrated package of reforms. Nonpartisan selection commissions, gubernatorial appointment, retention elections, and a judicial discipline commission each provided a piece of the “quality judges” puzzle. (A final piece, judicial performance evaluation, was added in 1988.) Removing any of these components, or instituting them in a piecemeal way, would weaken both the appeal and the efficacy of the merit selection system.

The ghosts of 1966 may only live in basement files, but the issues surrounding judicial selection methods are far from settled. States continue to experiment with variations of contested judicial elections, merit selection, legislative appointment, and lifetime appointment. Nor is the federal judiciary immune from the larger discussion: Senator Ted Cruz recently called for retention elections—but only retention elections—for U.S. Supreme Court Justices. I will examine that idea more closely in a coming post.

Posted by Jordan Singer on January 4, 2016 at 01:41 PM in Judicial Process, Law and Politics | Permalink | Comments (4)

Thursday, December 31, 2015

ADR and the Pro Se Litigant

I previously blogged about mediation as a means of docket management.  I would next like to discuss how it provide pro se litigants with greater access to justice. Unrepresented litigants pose problems both for the forum and for themselves.  For the judge, it is the delicate balancing act of helping the individual without representing them. Here is a good account of one judge's perspective.

As discussed previously, ADR provides many benefits over adjudication. The informality of the process is more favorable to the pro se litigant. The self represented party has less concerns with the formal rules and deadlines of the adjudication process (other than the obvious ones like timeliness). A facilitative mediation (one in which the neutral facilitates a discussion between the parties) allows the individual to speak directly with the other party to present their position. 

Neutrals are ethically prohibited from representing a party, and cannot provide legal advice. However, in the case of an early neutral evaluation (ENE) technique, the neutral may provide an analysis of the merits. This allows both parties, including the pro se, to make informed decisions on settling the case.

Posted by Scott Maravilla on December 31, 2015 at 07:50 AM in Judicial Process | Permalink | Comments (0)

Sunday, December 27, 2015

Mediation as a Means of Docket Management, or How I Learned to Stop Worrying and Love ADR

Alternative dispute resolution (ADR) is increasing in use in courts at all levels.  A development has been the active encouragement of the use of mediated settlements as opposed to merely making it available to the parties.  The U.S. District Court for the Western District of New York has an ADR Program in which the parties are initially referred to a mediator to explore ADR possibilities.  The FAA has a statutory commitment to ADR at the administrative level for the resolution of government contract claims.  

Mediation may be with an independent third party neutral rather than  settlement discussions held by the presiding judge in the case. Judges, however, can offer their services as mediators.  The judge, as is the case with the FAA, may be a neutral party recused from the case altogether.  In those instances, the parties have the benefit of the judge's experience without fear of prejudicing a decided outcome.  In fact, one type of ADR technique is the early neutral evaluation (ENE) in which the neutral (often a judge) provides the parties with an analysis of the strengths and weaknesses of their respective positions.

ADR possesses many advantages over protracted litigation.  The biggest being time.   Courts have scarce resources.  One law review article discusses the scarcity of resources among  Federal appellate courts to hold oral arguments and decide cases.  In a mediation, the parties, with the assistance of a neutral, may establish a rigorous schedule to exchange information.  They may then quickly enter into discussions to attempt to resolve the matter.  The case can be managed based on the needs of the parties rather than on the available resources of the court.  Ultimately, agreed upon settlements mean less decisions to write, and free up valuable resources for those that must be decided.

 

Posted by Scott Maravilla on December 27, 2015 at 01:52 PM in Judicial Process | Permalink | Comments (0)

Friday, December 18, 2015

Klein and NFL Officiating

I no longer watch football, particularly the NFL; the league is just too corrupt and the sport just too gladiatorial for my taste. But I cannot avoid news stories related to the league. I was interested in the league's announcement this week that, in the wake of increasing criticism of the game officiating this season (that may or may not be justified), game officials would be in contact the league vice president of officiating during games about replay and other "administrative" matters. This has sparked concerns among many, including the former VP of officiating, about the lack of accountability and increase in uncertainty from having a league official whispering into the ref's earpiece. One former official worried that we could not know whether a changed call was because the game officials got together or because "someone in New York doesn't like the call." As another former official said, "what it looks like is that the league office is making decisions on who possibly wins or loses the game."

The last concern sounds in the sports-officiating equivalent of United States v. Klein (which returns to SCOTUS later this term with a case challenging a law that may actually be unconstitutional for the first time since 1872): Just as Congress cannot dictate specific decisions or outcomes in specific cases, the NFL should not be telling officials what calls to make or how to apply the rulebook on specific plays in a specific game.

Posted by Howard Wasserman on December 18, 2015 at 03:54 PM in Civil Procedure, Howard Wasserman, Judicial Process, Sports | Permalink | Comments (0)

Thursday, October 29, 2015

Yes Virginia, there is a trial penalty, and it's four times larger than we thought

Last year David Abrams, Penn, stunned the criminal law world with a study concluding that defendants actually receive shorter sentences at trial than they do for pleading guilty. Rather than "penalizing" those who exercise their right to trial, we actually punish those who plead guilty more harshly, turning decades of plea bargaining debates on their head.

Abrams was wrong, and he’s not the only one.

My latest article reveals significant conceptual and statistical errors in the canonical methodology that cause most other studies, including those by the United States Sentencing Commission (USSC), to greatly underestimate the trial penalty. Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study.84 Miss. L. J. 1195 (2015) (Selected through peer review). Where leading researchers report that the federal trial penalty is only around 3-15%, I find that the average federal trial defendant receives sentences around 64% longer than if they had pled guilty instead. In other words, federal defendants cannot exercise their constitutional right to trial unless they are willing to risk a 64% longer sentence, a heavy "penalty" indeed. Where Abrams reports that Chicago defendants pay a similar penalty for pleading guilty, I reveal that his data actually suggests that plea defendants receive shorter sentences than those who go to trial. 

Applying these findings, I demonstrate that the federal trial penalty is so large that only a tiny fraction of defendants could ever rationally choose to go to trial. In such a system, the constitutional right to trial by jury becomes less of a “right” and more of a trap for fools.

Why are my findings so different than everyone else's? Glad you asked.

[More after the fold]

The biggest reason prior federal studies underestimate the trial penalty is that they fail to include the effects of the "acceptance of responsibility" discount. Under the Federal Sentencing Guidelines, defendants who “accept responsibility” by pleading guilty automatically receive a 2-3 point discount to their sentences, but lose this discount if they insist on trial. As such, it operates as a statutory plea discount, or "trial penalty," that sets the baseline for all plea negotiations. Because prior studies do not include the effects of acceptance of responsibility, they heavily underestimate the price defendants actually pay for going to trial. Acceptance of responsibility is written into the guidelines and the USSC's data itself, causing prior studies to miss these effects. Indeed, it is impossible to measure the effects of acceptance of responsibility without reverse engineering the data with several hundreds of lines of code, which I think I am the first to do.

I next explain that rather than measuring the "trial penalty" as that term is understood in crim law debates, Abrams asks whether a rational defendant would be better off going to trial. Defendants are better off going to trial if they face a negative "Abrams Trial Penalty," which Abrams claims to find. Abrams is quite upfront that he is not measuring the traditional trial penalty and, indeed, argues that crim scholars should focus on his new metric. The problem is that crim scholars generally do not discuss this metric because it is usually impossible to measure. A positive Abrams Trial Penalty would indicate that the average plea defendant receives a percentage discount that is larger than their percentage odds of acquittal if they went to trial. Because plea defendants do not go to trial, however, we cannot know what their odds of acquittal would have been without a highly expensive controlled experiment.  (FYI, I'd be open to grants to explore the question!). As I explain, Abrams' innovative methodologies cannot overcome this fundamental problem. By reanalyzing Abrams' findings, however, I show that the normal "trial penalty" in Abram's dataset is likely positive: defendants do pay a price to go to trial.

In addition, Abrams and many prominent scholars report average sentences as the average sentence excluding defendants that receive probation only. Because probation only is the lightest sentence you can receive, however, excluding those cases artificially inflates the average sentence and produces a metric that is quite misleading and largely irrelevant to crim law debates. Nonetheless, many well known sentencing scholars, including some commissioned by the USSC, persist in reporting the "average incarceration sentence" rather than, or in addition to, the actual average sentence defendants receive. As I explain, this peculiar metric appeared in the 1980's due to fundamental misunderstandings about the nature of censored data and selection effects, and confusion about the proper application of the Heckman 2-step correction factor and Tobit regression to control for censoring. (End stat technobabble). This and other common methodological errors are discussed further in my piece. (I put most of the technical stuff in footnotes).

One major limitation of my study is that, like virtually all sentencing studies, it cannot account for the effects of charge bargaining. Because charge bargaining works to increase the trial penalty, however, it does not affect my final conclusion that for the vast majority of federal defendants, trial by jury is not a "choice" or a "right." It is a "mistake."

Posted by Andrew Chongseh Kim on October 29, 2015 at 01:13 PM in Criminal Law, Judicial Process, Privilege or Punish | Permalink | Comments (3)

Tuesday, September 22, 2015

Piling on Judge Posner

Cue the outrage: Judge Posner is in the news again for researching facts outside the record and using those facts in judicial opinions. His earlier research included issues of donning and doffing work clothes, dreadlocks in prisons, guns and danger, a traveling would-be preacher and campus geography,  and a rabbi involved in a dispute with Northwestern University. Unlike some judges who do research but don't disclose it, Judge Posner is forthright about his research, discussing it at length in chapter 5 of his book, Reflections on Judging.

Although federal judicial ethics rules (Canon 3(A)(4)) are implicated when judges do their own fact research, in practice the propriety of the research tends to come down to whether judicial notice would be proper. For adjudicative facts (generally what Judge Posner is researching), judicial notice is only proper under the rules of evidence if it can be "accurately and readily determined from sources whose accuracy cannot reasonably be questioned." F.R. Evid. 201. (There is no exception for "background information," although such research might meet the requirements for adjudicative facts, or be mere harmless error). Especially at the appellate level, fact research can also mess with the burden of proof, the prohibition of judges as witnesses, and the requirements for admissibility of treatises under the hearsay rule.

Some of Judge Posner's research is entirely proper under those requirements. Some is not. And unless you count the availability of a motion to reconsider, it fails the procedural requirement of Rule 201: "On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard." One of the concerns about independent judicial research is the loss of an opportunity to argue that the "facts" the judge finds are wrong, or are not indisputable, or have been misapplied. In addition, Judge Posner uses some of his research to draw inferences, and that is an area where an opportunity to be heard is especially important.  In U.S. v. Boyd (the gun case) for example, research about the nature of ammunition and the location of buildings was used to infer that shooting a gun into the air at 3 a.m. in downtown Indianapolis created a "substantial risk of bodily injury to another person." In the traveling preacher case, Judge Posner drew a conclusion about the comparative desirability of speaking locations from Google's view of the college campus. The research involves not just "facts," but also inferences from those facts, and so research done at the appellate level, outside the record, with no opportunity to reply, can be particularly troubling.

But hold on a minute. . . .

When I initially researched and wrote about the issue of judicial research, I did something I had never done before, and never expect to do again:  wrote a law review article with two endings. Independent judicial research raises some significant policy concerns, and I worry about those, but there is also a powerful policy counterargument, and Judge Posner makes it in the most recent case, Rowe v. Gibson.
  • This was a case with a pro se plaintiff, and the information disclosed by Judge Posner's research could easily have been put in the trial court record by competent plaintiff' counsel.
  • The defendant's medical expert (whose views were challenged by information that can be found online, as well as by the plaintiff's own sworn statements about his symptoms) was himself a defendant
  • This was not the review of a jury fact-finding, but a question of whether a fact issue existed that should be submitted to the jury rather than resolved through summary judgment. Judge Posner's research would thus lead to a fuller fact-finding process, not disrupt one.

 To put it more broadly -- do judges need to accept a result that may be very wrong in "fact" (put even more strongly, a miscarriage of justice) even when asymmetrical party resources have severely skewed the record? Judges themselves are strongly divided on this issue, polls show. Regarding the Rowe case itself, opinion is split up the middle in an Above the Law poll (scroll down and click on "View Results"). Criminal cases may raise especially strong concerns. Seventh Circuit judge Diane Wood once noted that Internet research about street names cast doubt on a criminal conviction. U.S. v. Harris, 271 F.3d 690, 708 n.1 (7th Cir. 2001) (Wood, J., dissenting).  However, even if we want to allow research to promote accurate outcomes, the need to give the parties timely notice and an opportunity to be heard is crucial.

This policy debate is not easily resolved, and one can construct a parade of horribles on both sides.  In the meantime, lawyers would do well to take care at the trial level that important information is made part of the record.

Posted by Beth Thornburg on September 22, 2015 at 01:13 PM in Judicial Process, Web/Tech | Permalink | Comments (3)

Monday, September 21, 2015

Encouraging Jury Service

In Civil Procedure, we spend a lot of time teaching students how to determine when the Seventh Amendment provides a right to juries in civil trials, but very little time talking about how juries actually function and why they are important. In studying post-trial motions, we focus on debates about whether small amounts of circumstantial evidence are sufficient to create a fact issue and whether apparently aberrant verdicts allow the imposition of a new trial.  The result can be that law students, despite legal training, share the public's general misconception about jury competence, which in turn may make them avoid jury trials as lawyers and encourage clients to fear juries.

But whatever we do in law school, the prejudice is out there. Bad joke: the problem with juries is that people who serve on them are too stupid to get out of jury duty. It's disrespectful to the many people who understand that jury service is important to the rule of law, an important political right, and personally rewarding. It also ignores the substantial body of empirical evidence that juries mostly get it right.

Nevertheless, the nugget of truth that makes the joke work is that sinking feeling we get when we receive a jury summons, and the reality that many jurisdictions have very high no-show rates. The system would function better if summoned jurors would appear and if the pool of potential jurors better reflected a cross section of the community.  Are there measures that court systems could take to increase participation?  Absolutely. Many are identified in the ABA's Principles for Juries and Jury Trials (Principle 2). This blog entry will focus on three ways to get more people to the courthouse.

1.  Who gets summoned? The choice of sources used to create master jury lists (aka jury source lists or jury wheels) affects both the size and composition of the pool. Voter registration and drivers license lists (the two most common sources) are not reliably updated. Use of these lists results in a large (often about 20%) number of undeliverable summonses, and it leads to a pool that tends to over-exclude young, poor, and urban citizens. What might be more reliable? New York, for example, also uses addresses of state income tax filers and the recipients of unemployment insurance and family assistance benefits. Those are addresses that the recipients have a strong incentive to keep current.

2.  Can people afford to serve? Juror pay also deters many people from showing up when summoned. When I was on a jury and spent four days at the courthouse, I had to rearrange my schedule but still got paid. For those who get paid only while working, however, especially those with little extra room in the family budget, jury duty is a hardship.  Take a look at this list of jury fees -- there's not a state that pays enough to compensate even a minimum wage worker for a lost day of work. This, too, is apt to skew the composition of empaneled juries.

3. Can we allay anxieties? The first two suggestions are politically difficult (admitting that something as simple as choosing an address list implicates political and social policies) and expensive (increasing juror pay to income replacement would be extraordinarily costly). But some people avoid jury service because they don't know how to drive downtown and park, don't know what to expect, and fear a long, boring day in an uncomfortable chair. That barrier to service can be addressed with a combination of internet communication and actual amenities. Not free, but very doable.  Watch this excellent YouTube video, Jury Service 101, from the Mecklenburg County, NC courts. In addition to a street level view of where to park and where to report, it notes that jurors have access to a comfy kitchen area, business center, fresh air balcony, game room, movies (and popcorn!), and free onsite child care. This well produced video could be a model for court systems around the country.

As an academic, I'm going to rethink how I teach my students about the role of juries and the judge/jury relationships. As a citizen, I'm going to advocate more juror-friendly policies.  Join me?

 

Posted by Beth Thornburg on September 21, 2015 at 09:00 AM in Civil Procedure, Judicial Process, Teaching Law | Permalink | Comments (9)

Monday, September 14, 2015

Subconscious Juror Bias

I am a big fan of juries. But it is our job as lawyers to be sure that we structure the process of summoning, seating, and using juries in a way that maximizes their effectiveness. I have argued that we need to do a better job of writing instructions they can understand (because they really try), and that broader jury question formats are more consistent with the political and instruments purposes of the jury. My interest became more than academic when I actually served as a juror in a criminal trial in 2014. That experience reinforced my theoretical expectations: a very diverse group of jurors analyzed the evidence, listened to and learned from each other, deliberated carefully, referred to the court's instructions, and took the process very seriously.

I was so enthusiastic about the experience that, the following semester, I taught a seminar about juries. The students read a lot of empirical information about juries -- from selection through deliberation and on to post-service issues. And they did a bit of research of their own.  (The students also blogged, which I recommend as a way to get students to think and write). One issue kept coming up in almost every context: the impact of juror biases, especially racial biases, on the entire jury system. The Batson process would be laughable if the impact weren't so serious. In addition, as in other areas of the law, subconscious bias on the part of people who believe themselves to be racism-free is hard to prove.

That's why I found this recent New Jersey case, State v. Brown & Smith, so fascinating. Brown and Smith were charged with carjacking, and their defense was that they were not the carjackers. During jury deliberations, Juror #4 told two other jurors that she had seen two African-Americans in her neighborhood and this made her “nervous” because this was not typical in the area where she lived. She therefore thought this “may have had some kind of sinister connection to the trial.”  The judge questioned all three jurors and assured them that they were not in danger, but the jurors' assumptions about race went largely unexamined.

In considering on appeal whether the jurors should have been removed, the Appellate Division got it:

When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based only on the race of the participants, she revealed a deeply-rooted, latent racial bias that required her removal from the jury. The trial judge erred in permitting her to remain on the jury and continue deliberating merely based on the juror's self-serving denial of racial bias.  Her initial instinctive, subliminal association of race with criminality or wrong-doing far trumped her subsequent assurances of impartiality. In her willingness to come forward and candidly report her misgivings, Juror 4 also revealed her unawareness of how engrained her racial bias was in her subconscious. This incongruity between Juror 4's conscious acts and latent beliefs is one of the most pernicious, unintended aspects of our jury system. (p. 3 of PDF)

The court wrote at length about the trial process, hoping to provide guidance to trial judges that would make clear that the trial judge's attitude -- "[W]e expect to some extent people have developed certain prejudices, some fixed ways of thinking" -- is unacceptable. A juror's assurance that he or she has no biases, or can set them aside, should not overcome evidence of lurking racial profiling.

By the way: for a wonderful weekly email with news related to both civil and criminal juries, subscribe to the National Center for State Court's Jur-E Bulletin.

Posted by Beth Thornburg on September 14, 2015 at 09:30 AM in Blogging, Civil Procedure, Criminal Law, Judicial Process, Teaching Law | Permalink | Comments (4)

Monday, June 15, 2015

Judges Should Volunteer for Cognitive Testing

Lifetime tenure has allowed some of this country’s most venerated jurists to serve well into advanced years.  Oliver Wendell Holmes, Jr. and John Minor Wisdom both stayed on the bench into their 90s.  Judges who have elected to take senior status, all of whom are 65 or older, handle roughly 15% of the federal courts’ workload on a volunteer basis.[i]  About 12% of the nation's 1,200 sitting federal district and circuit judges are 80 years or older.[ii]

But lifetime tenure has a potential downside.  Roughly one quarter of individuals in their 80s (and 5% of those in their 70s) suffers from dementia.[iii]  One might hope that federal judges who begin experiencing signs of dementia would retire before adversely impacting litigants.  But dementia typically lasts years and 92-93% of district and circuit court judges die within one year of their retirement.[iv]  Subjective self-policing is doomed to failure because many people with cognitive deficits are unaware of them.[v]

A doctor assessing cognitive impairment relies on second-hand observations in addition to first-hand examination of the patient.  In the judicial context, there is a structural impediment to using second-hand observations.  As one chief judge recently observed, “lawyers (who are in the best position to observe judicial behavior) are reluctant to point an accusatory finger at judges before whom they appear.”[vi]  Colleagues may not recognize problems because symptoms can vary.  For example, personality changes, poor judgment, or slowed processing speed can manifest years before the onset of memory impairment in some people with early dementia.

Clinical examinations are therefore essential.  At least one federal district judge, Jack Weinstein (aged 93), has volunteered to undergo annual neurological evaluations.[vii] Frequent, focused expert capacity assessment is needed to make sure judges do not stay on the bench too long.  The current system relies on ineffectual self-policing, complaints by lawyers naturally reluctant to lodge them, and limited oversight by chief judges.  The stakes are too high for such a flawed and informal approach.  All federal judges of advanced age should follow Judge Weinstein’s example and voluntarily submit to regular cognitive testing.



[i] U.S. Courts, FAQs: Federal Judges, at http://www.uscourts.gov/faqs-federal-judges (visited May 9, 2015).

[ii] Jospeh Goldstein, Life Tenure for Federal Judges Raises Issues of Senility, Dementia, ProPublica (Jan. 18, 2011), at http://www.propublica.org/article/life-tenure-for-federal-judges-raises-issues-of-senility-dementia (visited May 9, 2015).

[iii] B.L. Plassman et al., Prevalence of Dementia in the United States: The Aging, Demographics, and Memory Study, 29 Neuroepidemiology 125, 128 tbl.2 (2007).  

[iv] Albert Yoon, As You Like It: Senior Federal Judges and the Political Economy of Judicial Tenure, 2 J. Empirical Leg. Stud. 495, 527 tbl.10 (2005). 

[v] Giuseppe Gambina et al., Awareness of Cognitive Deficits and Clinical Competence in Mild to Moderate Alzheimer's Disease: Their Relevance in Clinical Practice, 35 Neurol. Sci. 385, 387 (2014).

[vi] In re Complaint of Judicial Misconduct, 758 F.3d 1161, 1161 (2014).

[vii] Goldstein, supra note 2.

Posted by Fredrick Vars on June 15, 2015 at 12:27 PM in Judicial Process | Permalink | Comments (0)

Thursday, June 11, 2015

Judicial Specialization, Patent Cases, and Juries

Judicial specialization has long been a topic of debate among patent lawyers and scholars.  In recent years, critics (including Seventh Circuit Judges Diane Wood and Richard Posner) have questioned the wisdom of granting the U.S. Court of Appeals for the Federal Circuit exclusive jurisdiction over patent cases.  Yet, judicial specialization in patent cases is not limited to the Federal Circuit.  Over the past decade or so, certain federal district courts--particularly, the Eastern District of Texas and the District of Delaware--have become patent litigation "hot spots," and the judges in those districts have developed substantial patent expertise.  Moreover, Congress established the Patent Pilot Program in 2011 "to encourage enhancement of expertise in patent cases among district judges" by funneling patent cases in certain districts to designated judges.

Proponents of judicial specialization argue that it promotes efficiency, uniformity, and predictability for litigants, while opponents claim that specialized courts are subject to bias, capture, and tunnel vision.  Recent scholarship also addresses the question whether specialized courts are more likely to compete for lawsuits, or participate in "forum selling," as discussed here and here.

I am currently working on a paper, Influencing Juries in Litigation Hot Spots, that explores a different problem with specialized trial courts: the potential to improperly influence the jury pool.  The situation with patent cases in the Eastern District of Texas, recently highlighted on John Oliver's show, provides a prime example.  In the Eastern District of Texas, repeat litigants like Samsung have attempted to generate goodwill with the citizens of Marshall and Tyler (i.e., potential jurors) by sponsoring an ice skating rink outside the courthouse, granting college scholarships to Marshall and Tyler students, and donating television monitors to the local high school.  While the small towns of Marshall and Tyler have no doubt benefitted from Samsung's public relations campaign, the cost to our justice system--where juries are supposed to be impartial--is arguably too high.  

 

 

Posted by Megan La Belle on June 11, 2015 at 06:56 PM in Civil Procedure, Intellectual Property, Judicial Process | Permalink | Comments (1)

Monday, June 08, 2015

The Bellwether Settlement

A curious thing is happening in a Bergen County court in New Jersey.  A set of trials scheduled to go forward this summer were resolved through an unusual settlement process. In a case that involved more than 3,000 defective hip-implants, the parties reached a $1 billion global settlement in record time, using what the court described as an unprecedented series of "bellwether settlements."  

By way of background, courts have used "bellwether trials" for a long time to resolve large numbers of similar lawsuits. In a bellwether trial (or trials), the parties select a small group of cases for jury trial out of a large group of similar claims.  A steering committee of plaintiff and defense counsel then use information gleaned from trial outcomes to resolve the remaining cases. Bellwether trials have been used to resolve many high profile cases--perhaps most famously in the Vioxx litigation against Merck and, most recently, in GM's litigation over its defective ignition switches.

But instead of "bellwether trials," the court facilitated a system of "bellwether settlements." That is, rather than use juries to decide the merits and value of certain cases, the parties--supervised by the court, magistrates and special masters--relied on a structured sample of 21 mediations involving typical plaintiffs to forge a global settlement.  It was hoped that the different settlement outcomes, much like a bellwether trial, would offer the parties crucial "building blocks"--providing critical information about how to globally resolve the remaining cases. And Judge Martinotti, the New Jersey judge designated to handle all of the cases, was incredibly successful.  The process not only resolved more than 2,000 lawsuits in New Jersey state court, but another 1,000 pending lawsuits in federal multidistrict litigation, all in one fell swoop.

A few thoughts beneath the fold.

I suppose many bellwether trials are really bellwether settlements in disguise.  Many of the cases that parties select as the "bellwether," as it happens, end up settling on the eve of trial. And because counsel in multi-district litigation share information, when enough cases settle, the parties learn how to structure a global settlement. So, here the court just chose to proceed based on the not-altogether-crazy idea that no case would reach a trial on the merits.  But the court's complete embrace of a "bellwether settlement" scheme raises interesting questions.  What do "bellwethers" mean when the procedures and outcomes lack any connection to the decisions a jury might reach?  

Most proponents of bellwether trials often assume some role for a jury in resolving a complex dispute.  First, bellwether trials provide a "dress-rehearsal" for other jury trials likely to come in a large case by helping parties hone their evidence and their arguments.  Second, a bellwether jury verdict assures that any eventual settlement bears some relationship to the merits of the dispute.  Third, the prospect of a jury trial in complex litigation wards off the threat of collusion and assures that the plaintiffs' counsel have sufficient bargaining strength in settlement negotiations.  Cf. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997) ("Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer... and the court would face a bargain proffered for its approval without benefit of adversarial investigation"). Fourth, a bellwether jury serves an important democratic function with deep roots in the history of American adjudication--providing bulwark against unelected judges who may harbor biases about what makes for a fair global resolution.

By dispensing with the jury entirely, bellwether settlements risk all of these important benefits.  But you could argue they have other advantages.  According to Judge Martinotti, the process yielded important information about claims, remedies and strategies that parties often would not share in preparation for a high-stakes trial. First, although bellwether trials provide a good way to measure how random members of the community  value common claims, they don't necessarily help counsel learn how random beneficiaries of a global settlement will value those same things. When the end-game is a global settlement, a focused sampling of arms-length negotiations could help counsel better identify solutions from the ground up.  

Second, bellwether settlements also avoid the problem of outlier or clustering verdicts--unexpectedly high or lottery-like jury awards that are difficult to average and threaten the chances of a more global settlement.  See Alvin K. Hellerstein, Managerial Judging: The 9/11 Tort Responder Litigation98 Cornell L. Rev. 127, 161-163 (2012)("at most, [bellwether trials would] have brought about settlements in individual claims or small clusters of claims, [but the] parties would not have had sufficient information to effect a wholesale global settlement."); Brian R. Martinotti, Complex Litigation in New Jersey and Federal Courts,44 Loy. U. Chi. L. J. 561, 575 (2012) ("[I]f the parties and counsel are in the midst of successful settlement discussions, a bellwether trial that results in a verdict outside the range of settlement—i.e., an outlier—may empower a party to go forth with the litigation and cause negotiations to break down.")

Finally, many leading members of the steering committees claimed that the structured mediations built "trust" among counsel in ways that don't easily occur until much later in multi-district litigation.

Bellwether settlements are part of a larger long-term trend taking place in the American courthouse.  As public courts export more cases to private dispute resolution--like mandatory arbitration--they also have imported values from ADR to find new ways to creatively resolve disputes, using court-annexed arbitration, special settlement masters and magistrates, and "problem solving" courts.  See Judith Resnick, Diffusing Disputes: The Public in the Private of Arbitration, the Private in the Courts, and the Erasure of Rights, 124 Yale L.J. 2084 (2015)(describing policies that "press trial-level judges to become conciliators, to deploy other individuals as “neutrals” to mediate or to arbitrate in courts, and to outsource decision making to the private market").  The result may be solutions that promise more speed, input, legal access, and as some have described, "paths to justice" than traditional trials.  

But the challenge is to determine what role our courts should play when large cases and "vanishing trials" push them to move outside their traditional public role as adjudicators--hearing adverse claims, supervising controlled fact-finding, and interpreting law. Judge Martinotti continues to play that traditional role in many complex cases. But like other judges in complex litigation, here his role seemed more like a public broker in a complex settlement marketplace--helping the parties set ground-rules and open the lines of communication to encourage people to enter into valuable contracts, exchange information about them, and in the process, and build trust necessary to forge a much larger, global settlement.   

Posted by Adam Zimmerman on June 8, 2015 at 06:57 PM in Civil Procedure, Deliberation and voices, Judicial Process, Torts | Permalink | Comments (0)

Thursday, June 04, 2015

Armstrong and Implied Public Rights of Action

Thank you to PrawfsBlawg and Howard for the opportunity to join the conversation as a guest blogger this month.  I'd like to begin by raising a question about the enforcement of federal law:  May federal courts imply public rights of action when Congress has not expressly authorized it?  

I have written about this question before here and, to a lesser extent, here.  The problem of implied public rights of action in favor of the United States and the states has some differences (and some similarities) with the problem of implied private rights of action in favor of private litigants.  Recently I've been mulling over the problem in light of Armstrong v. Exceptional Child Center, Inc.  (For Steve's and Howard's commentaries on Armstrong, which raise intriguing but different questions than mine, go here and here.)  The reason I've been mulling over Armstrong is Justice Breyer's concurrence, which suggests that the United States might have an implied public right of action to enforce the "equal access" mandate of the Medicaid Act even though private litigants do not.

Prior to Armstrong, implied rights of action under the Supremacy Clause had become an important way for beneficiaries to enforce federal regulatory programs.  For some time, however, this right of action had been on a collision course with the Court's retrenchment from implied private rights of action under federal statutes and private enforcement via Section 1983.  And in Armstrong they collided.

Writing for the Court, Justice Scalia explained the Supremacy Clause states only a "rule of decision" and does not support implied rights of action.  How, then, have federal courts granted injunctions against state officials without express congressional authorization?  Judge-made remedies, Justice Scalia responded, are appropriate "in some circumstances," such as in Ex parte Young.  Congress may, however, preclude judge-made equitable remedies and, the Court held, had done so by authorizing the Secretary of Health and Human Services to withhold Medicaid funding for violations of the statute.  

It remains to be seen how much private enforcement of federal law has been swept aside by the Armstrong Court.  One possibility is "not much."  As others have noted, the Court honed in on specific features of the Medicaid Act that it held precluded private enforcement.  

What I'm most intrigued by is what Armstrong portends for public, rather than private, enforcement.  Here's where Justice Breyer's concurring opinion interests me.  He suggested that "[i]f withholding funds does not work, the federal agency may be able to sue a State to compel compliance with federal rules."  Breyer cited Arizona v. United States, in which the Obama Administration sued to enjoin Arizona's "hand me your papers, please" immigration policy.  As I've explained elsewhere, the Administration relied upon an implied public right of action to enforce federal supremacy over immigration matters.  Justice Breyer's citation to Arizona presents a puzzle:  Why would Congress's selection of a public remedy to enforce the Medicaid Act implicitly preclude private enforcement but not additional public enforcement?  If anything, the argument might run, the specification of a public remedy implicitly precludes other public remedies but not private ones.

To press the argument further, we might say that Armstrong's interpretation of the Supremacy Clause sweeps away implied public rights of action in cases like Arizona v. United States.  Now that we know the Supremacy Clause doesn't support rights of action, the most obvious places to turn for judicial authority to imply public rights of action are Article II (when the federal executive sues), the specific constitutional or statutory provision at issue, or federal equity.  I've never been comfortable with the view that Article II alone implies and even requires public rights of action.  In some cases other constitutional provisions or statutory provisions will support implied public rights of action.  That leaves equity, which Armstrong reaffirms "in some circumstances."  Perhaps implied public rights of action for injunctive relief fit within those circumstances, but in some cases, including Arizona, that's far from clear.   

Comparing Justice Scalia's and Justice Breyer's opinions muddies the waters.  Justice Scalia offers some examples where federal courts may fashion equitable remedies.  Regulated parties are in, it seems, but beneficiaries of federal regulation (and the federal government in many cases) may be out.  Scalia also suggests the history of English equity matters, which recalls his restrictive approach to private remedies in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. and Great-West Life & Annuity Insurance Co. v. Knudson.  (For a fascinating discussion of these cases' restriction of remedies, see Judith Resnik's 2003 article.)  If the federal government cannot analogize itself to a regulated party claiming an immunity from state regulation, Scalia's vision of equity might preclude an implied public right of action.  By contrast, Justice Breyer's view leaves implied public rights of action against state officials largely, if not entirely, intact.  His concern was that private remedies may interfere with agency expertise.  And, not surprisingly, he was comfortable with an implied public right of action to give HHS another tool to enforce federal rules.  

Moving forward from Armstrong, it will be necessary to take greater care to tease out not only the distinction I'm raising here between implied private and public rights of action but also the distinction Mike Dorf draws here between statutory and constitutional enforcement.  Where the federal government claims that the Constitution itself (rather than a statute plus the Supremacy Clause) preempts a state's action, including in an immigration case like Arizona v. United States, both distinctions matter.  Thus, Armstrong raises interesting and practically important questions not just for private, but also for public, enforcement.   

Posted by Seth Davis on June 4, 2015 at 10:10 PM in 10th Anniversary, Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (0)

Thursday, May 14, 2015

Recent SCOTUS Decision in Bullard: Right Decision, Wrong Result

Last week, in Bullard v. Blue Hills Bank, the Supreme Court unanimously held that an order rejecting a bankruptcy debtor's proposed Chapter 13 plan is not final for purposes of appellate review.  The holding highlights a fundamental problem in appellate jurisdiction:  the lower court is often the gatekeeper of the right to appeal important interlocutory orders and--too often--jealously holds onto the key.

The debtor in Bullard sought to confirm a Chapter 13 plan that would have required him to pay in full the secured portion of his residential mortgage loan while discharging most of the unsecured portion (the latter a function of the fact that the value of the real property was less than the total loan amount).  The bankruptcy court rejected that plan because of the hybrid treatment of the debt--an issue as to which there was conflict in the case law.  The Bankruptcy Appellate Panel accepted a discretionary interlocutory appeal under 28 U.S.C. § 158(a)(3) and affirmed.  But the BAP then refused to certify the appeal for further review in the First Circuit under 28 U.S.C. § 158(d)(2) (analogous to 28 U.S.C. § 1292(b) in non-bankruptcy cases).  When the debtor appealed to the First Circuit, that court dismissed the appeal, concluding that the denial of a confirmation plan was not final, and the absence of BAP certification deprived the appellate court of discretionary jurisdiction over an interlocutory order.



The Supreme Court's holding is not itself remarkable.  It boils down, essentially, to a diatribe against the floodgates of appellate litigation that would result if interlocutory orders (even important ones) were always immediately appealable.  It's actually hard to fathom why the Supreme Court even bothered to hear the case.  No one would seriously contend, for example, that the denial of summary judgment (in a non-immunity case and involving no claim for injunctive relief) is subject to immediate appeal.  Refusing to confirm a bankruptcy plan is not meaningfully different.

The Court did not mean to suggest that there should never be a right of immediate review.  It acknowledged that the debtor's alternatives to an immediate appeal--either to proceed with an amended plan or to suffer dismissal of the bankruptcy proceeding--are both often unpalatable.  But the Court contented itself with the knowledge that in such circumstances, 28 U.S.C. § 1292(b) permits appeals from bankruptcy cases heard by district courts, and § 158(d)(2) permits appeals from bankruptcy matters heard by BAPs.  

That contentment was misguided, because the statutory bases for interlocutory appeal depend on the acquiescence of the very court whose decision is being appealed.  In Bullard itself, for example, the real problem was that the First Circuit should have been entitled to make that appellate-jurisdictional determination and apparently wanted to--but  the BAP blocked it from doing so.  Under § 158(d)(2), the First Circuit could have heard the appeal only if the BAP had first certified the issue as one involving:  (a) a question of law on which there was no "controlling precedent"; (b) a question of law requiring "resolution of conflicting decisions"; or (c) an issue the resolution of which would "materially advance the progress of the case."  The BAP refused such a certification "for reasons that are not entirely clear."

I have previously criticized the trial courts' gatekeeping function when it comes to interlocutory appeals of important issues.  See Andrew S. Pollis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation 79 Fordham L. Rev. 1643, 1658-63 (2011); see also Andrew S. Pollis, Civil Rule 54(b): Seventy-Five and Ready for Retirement, 65 Fla. L. Rev. 711, 762 (2013).  Bullard is just the latest example of that problem in action.  While I have no quarrel with the Supreme Court's determination that the denial of a bankruptcy confirmation plan is not a final judgment always triggering the right of appellate review, I continue to call for reform so that important issues warranting immediate appeal do not continue to be sacrificial lambs at the indelible altar of trial-court (or, in this case, BAP) sovereignty.

Posted by Andrew S. Pollis on May 14, 2015 at 11:49 AM in Civil Procedure, Judicial Process | Permalink | Comments (5)

Monday, May 11, 2015

What's Wrong with this Picture?

The letter reproduced below is at the center of a class-action lawsuit that has divided a Sixth Circuit panel.  Take a gander, and offer your perspective in a comment.  

AG




Posted by Andrew S. Pollis on May 11, 2015 at 10:25 AM in Judicial Process | Permalink | Comments (9)

Thursday, May 07, 2015

Same-Sex Marriage: The (Ted) Kennedy Legacy

The odds-makers are generally in agreement that the deciding vote in Obergefell v. Hodges will be Justice Kennedy. While some have speculated that Chief Justice Roberts will find a way to join in a majority judgment (if not majority opinion) recognizing a Constitutional right to same-sex marriage, the more-prevalent view is that the liberal-conservative stalwarts on the Court will split 4-4 and that Kennedy will cast the decisive fifth vote one way or the other.  If he sides with the proponents of same-sex marriage, the winners will have another Kennedy to thank, albeit posthumously, for that result:  Senator Ted Kennedy.

The narrative goes like this:

 


In 1987, Justice Lewis Powell retired, leaving President Ronald Reagan his third Supreme Court vacancy to fill.   (The first occurred when Potter Stewart retired, and President Reagan appointed Sandra Day O'Connor.  The second occurred when Chief Justice Warren Burger retired, and President Reagan elevated William Rehnquist to the Chief Justice seat and appointed Antonin Scalia to fill the vacancy.) Reagan nominated Judge Robert Bork of the D.C. Circuit, leading to the infamous confirmation hearing that ended with a Senate vote rejecting Bork, 58-42.

Bork’s greatest and first nemesis in that nomination process was Senator Kennedy, who took to the Senate floor and urged that “Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”

Notably absent from that floor speech was any notion of rights for gays and lesbians. Remember, this was 1987.  Bowers v. Hardwick, the 1986 case that permitted states to criminalize sexual conduct between members of the same sex, was fresh law (and remained on the books until 2002, when Justice Kennedy wrote the decision in Lawrence v. Texas that overturned it).

Kennedy's speech galvanized the Senate, and the nation. Vice-President Joe Biden, then a senator and chair of the Judiciary Committee, had his own field day during the committee hearings. I was a fresh-faced first-year law student, and the protests on my law-school campus made indelible impressions on me. When Bork was ultimately defeated, we knew we had won. We didn't quite know what we had won, but we knew we had won something.

President Reagan next nominated Douglas Ginsburg to fill Powell's spot, but Ginsburg withdrew after reports surfaced that he had used marijuana. (Remember, it was 1987.) So Reagan turned to Anthony Kennedy. And here we are today.

Bork died in 2012. Had he won confirmation and remained on the Court until his death, President Obama would have been in office at the time of the vacancy. Given the likelihood that Obama would have appointed a justice favorably disposed to same-sex-marriage rights, some might say that blocking the Bork nomination had no ultimate impact on this issue. But it’s important to remember that Obergefell did not materialize out of thin air. It comes following years of development of legal protections for gay, lesbian, and bisexual people:  (1) the Kennedy opinion in Romer v. Evanswhich in 1995 struck down a state constitutional provision banning anti-discrimination laws protecting gays, lesbians, and bisexuals; (2) the 2002 Kennedy opinion in Lawrence; and (3) the 2013 Kennedy opinion in United States v. Windsor, overturning a portion of the Defense of Marriage Act. 

So some credit is due to Senator Kennedy, arguably responsible (at least in part) for the ultimate nomination of Justice Kennedy. And that Kennedy-Kennedy legacy may end up making a bigger mark on history when the Court announces the Obergefell decision at the end of June.

Posted by Andrew S. Pollis on May 7, 2015 at 12:20 PM in Constitutional thoughts, Current Affairs, Judicial Process, Law and Politics | Permalink | Comments (1)

Monday, May 04, 2015

Mass Compensation After September 11

Thanks to everyone for having me this month. For those of you who don’t know me, I write about complex litigation, mass torts and administrative law. Lately, I've been writing a lot about the issues that come up when mass disputes appear in unusual places—like administrative adjudication and agency settlements, federal prosecution agreements, private corporations, and even, the Presidency.   

Despite some personal experience with it, I haven’t written much about the mass litigation that followed September 11. (But see here). However, in the last few weeks, we've crossed two small milestones for thousands of recovery workers who claim they suffered toxic injuries at Ground Zero.  The first was announced by Sheila Birnbaum, the administrator of the new September 11 Victim Compensation Fund, which Congress reopened to pay claims brought by first responders.  After three years overseeing the Fund, Birnbaum announced that she had resolved $1 billion dollars worth of claims for over 4,400 first responders.  

The second appeared in an order by Federal District Judge Hellerstein, who has overseen almost all the September 11-related lawsuits since 2002.  After more than a decade of litigation, Judge Hellerstein's order noted the parties were in the "final stage" of settling recovery workers' claims in federal district court.  In re World Trade Center Disaster Cite Litigation, 2015 WL 1262283 (S.D.N.Y. Mar 15, 2015).  Judge Hellerstein’s opinion was just a small order among many. But it was related to a global $810 million settlement for recovery workers, brokered with the assistance of two other special masters (and established Tort scholars) James Henderson and Aaron Twersky. 

As I suggest below, each settlement effort raises interesting questions about the best way to gather highly contested scientific evidence in a massive dispute.  Public compensation schemes like the new September 11 Victim Compensation Fund can rely on innovative and experimental administrative law tools--like New York's unprecedented 71,000 member "health registry"--to collect massive amounts of new health information and flexibly adjust the way they compensate people over time. Settlements in court aren't as flexible, but aggregate litigation has other advantages.  Technological innovations in complex litigation--like Judge Hellerstein's comprehensive, searchable electronic database of 10,000 WTC claims discussed below--can sometimes allow decisionmakers to see patterns and trade-offs that an administrative agency won't when it decides each case, one at a time. 

Background of the WTC Litigation and the new September 11 Victim Compensation Fund

By way of background, immediately after September 11, New York City had to coordinate vast numbers of agencies, public health officials, uniformed officers, contractors and laypeople to clean up Ground Zero.  According to one FDNY report “the complexity of the activity performed at one site—rescue, recovery, demolition, and construction—at one time" was simply unprecedented.  (See New York City Fire Department. New York City Fire Department’s Deputy Assistant Chief Report No. 2003-P-000124).

The recovery effort was dangerous and hectic--firefighting in toxic fumes, urban search and rescue,  removing and demolishing hazardous materials from what came to be known as the "pile." And while some of the earliest responders to the WTC attacks were trained FDNY and New York police officers, many other responders--like electricians, ironworkers, demolition contractors, and volunteers--had never been trained in, or even advised about, how to use proper personal protective equipment.  Soon stories about unusual respiratory diseases, gastro-intenstinal illnesses and cancers among young recovery workers mounted.  Over 11,000 claims were filed in federal court, centralized before Judge Hellerstein, and settled in December 2010.  Congress also acted.  In the waning days of 2010, it reopened the September 11 Fund and set aside $2.8 billion to compensate what it estimated to be over 30,000 eligible workers at Ground Zero, in just five years. 

Both settlement systems share remarkable similarities.  Both involve talented and experienced special masters, seeking to develop streamlined procedures to handle the same bewildering array of injuries in the aftermath of September 11.  And from the beginning, each settlement effort faced the same enormous challenge: how to come up with a way to divide limited funds to accommodate thousands of claims, asserting over 380 different kinds of personal injuries, using novel scientific theories of causation? Despite their similarities, however, the Victim Compensation Fund and the WTC settlement relied on different tools to gather information and distribute funds. 

The September 11 Fund and the WTC Health Registry

The September 11 Victim Compensation Fund relies on an innovative administrative scheme. It's decisions are informed by a decade-old "health registry," established shortly after September 11, that today monitors more than 70,000 people.   To enroll, people completed a confidential baseline health survey in 2003. Each enrollee answered questions about where they were on September 11, their experiences and their health. This data not only allows health professionals to continue to compare the health of those directly exposed to the WTC disaster to the health of the general population, but it provides a nice way for the Fund to compensate difficult-to-confirm injuries based on the latest available science.

This is because, by statute, the National Institute for Occupational Safety and Health (NIOSH) at the CDC  periodically canvasses studies informed by this database. 42 U.S.C. sec. 300mm–22(a)(5)(A). The Victim Compensation Fund, in turn, relies on NIOSH's review and recommendations to determine and update what categories of illness are eligible for compensation.  This expert-driven process is commonly used by administrative agencies—like the FDA and EPA. 

By contrast, because it was a court settlement, Judge Hellerstein originally approved an overarching deal based on the best scientific information he had in 2010.  That presented what the court and his Special Masters called a "gut wrenching" problem for cases involving cancer.  Because of the long latency periods between exposure and the onset of cancer, at the time, there wasn't much evidence linking toxic exposure near the World Trade Center to the cancers suffered by the plaintiffs.  As a result, under the original settlement, some severe asthma claims stood to be compensated more than cancer claims.  (The September 11 Victim Compensation Fund originally denied cancer claims, altogether.  But it was able to change course and begin compensating victims with cancer based on new studies published in June 2012 (despite ongoing controversy in the scientific community.)  

The registry has some drawbacks.  First, it's under-inclusive--not everyone who is sick today had the foresight to sign up back in 2003. Second, the registry probably doesn't contain all of the information needed to draw comparisons between exposure and the onset of an illness (like whether the people in the registry were already at a higher risk of getting cancer because of family history or other risk factors).  But the program nonetheless represents an amazing undertaking.  With the  exception of the "Ranch Hand" study, which has tracked vietnam veterans exposed to Agent Orange since 1978, the size and duration of this monitoring effort is almost without precedent. Today, the WTC Health Registry is the largest registry to track the health effects of a disaster in American history.

The WTC Litigation and the "Core Discovery" Database

The WTC litigation enjoyed a different informational advantage.  Unlike the Fund, which would not know how to rank claimants' very different injuries or anticipate tough evidentiary problems until well into the claim process, private litigants were able to structure their settlement with information about everyone else’s claim in federal court.  This was, in part, because of the Court’s unique “core discovery" order—one which gathered personal, occupational, medical, geographic and other detailed information about all of 11,000+ claims already filed in federal court.*  Those claims were coded, and the results were entered into a searchable electronic database.  

Although a central purpose of multi-district litigation** is to coordinate discovery just like this, the innovative use of technology, participation and searchable information in such a massive litigation was new and indispensable to the final settlement. Information gleaned from the database helped the parties select "test cases" and understand how the resolution of one case would impact other similar cases.  Judge Hellerstein, James Henderson and Aaron Twersky later observed:

[T]he ability to perform Boolean searches covering thousands of plaintiff files allowed the Special Masters to determine interrelationships between and among responses. For example, not only could the age distributions of plaintiffs, the frequencies and severities of each type of disease, and the variety and frequency among plaintiffs’ pre-existing medical conditions be determined; but it was possible to identify correlations between the ages of plaintiffs and the severities of injuries suffered and whether the length of the plaintiffs’ exposure to the WTC site increased the severity of injury. Thus, by adding or subtracting from the criteria reflected in the various fields one could discern which factors strongly correlated with the severity of injury and which factors had a lesser impact, or no impact at all.

The VCF cannot rely on such a database, upfront--claims come in one at a time.  And while the "health registry" helps assess general relationships between exposure and disease, it does not collect the kind of detailed information about people available in court-ordered discovery, nor does it include everyone eligible to apply to the Fund).  To be sure, the Fund has other ways to collect information about all claimants. First, claimants only receive 10% of their awards upfront.  Claimants then must wait until 2017, after everyone has filed, before they can collect the remainder of their awards.  In some ways, this unique feature of the VCF gives its decisionmakers some flexibility to adjust awards depending on the number and nature of all other known claims. 

Second, the VCF has made Herculean efforts to reach out to other institutions--like New York City, employers, other general contractors, and victims groups--to obtain information about prospective claims. Not only can the VCF process claims faster with that information, but such coordination allows the fund to see and learn more about its claimants before they file with the VCF.  (And indeed this seems to be working, after a slow start, the fund now appears to be adjudicating cases faster then ever).

Conclusion

Over the past 15 years, the Supreme Court has significantly limited the ability of courts to certify class actions in mass tort cases. The fear is that conflicts of interests and individual issues will overwhelm any attempt at meaningful adjudication.  Some have suggested that the Supreme Court's jurisprudence in this area follows Lon Fuller's classical account of adjudication. Fearing that any attempt to comprehensively hear complex, multiparty actions will lead to coercive court-house dealmaking -- what Fuller labeled "polycentric" disputes that were best solved through negotiation and management -- the Supreme Court has insisted that such issues are better resolved through legislation, administrative schemes and public law.  See, e.g., Ortiz v. Fibreboard Corp.527 U.S. 815, 821 (1999) (reversing complex settlement that “defies customary judicial administration and calls for national legislation”); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 598 (1997) (quoting Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation 42 (Mar. 1991). 

To that end, the new September 11 Victim Compensation Fund represents just such an effort. Congress created an administrative agency to determine eligibility standards, evaluate claims and distribute funds for each recovery worker at Ground Zero.  Based on an expansive study of New Yorkers in the wake of September 11, that agency, in turn, could update its process by consulting the country’s leading facility for the study of WTC-related disease. But like many public funds of its kind, the September 11 Victim Compensation Fund won't know who will decide to participate or the unique evidence require to establish some difficult claims until far into the application process.

Judicial decisions cannot be as flexible as adminstrative decisions, and I don't want to suggest that courts predict claim filings well.  (Parties to mass settlements can have a lot of trouble predicting the future.) But innovations in technology and judicial case management have allowed parties in court to know a great deal about the entire universe of pending claims and how to appropriately compensate them. Judge Hellerstein, with the assistance of two established tort scholars and the parties, generated a database of over 10,000 claimants with over 360 categories of injury. 

In some ways, this technological fix is simply a natural extension of what all multidistrict litigation tries to do--allowing a single judge to coordinate discovery and categorize common groups of claims for resolution. But such strategies also offer a possible response to Fuller's view about the futility of adjudicating "polycentric" disputes--where the number of interested parties is so large, and the ramifications so vast, that it is impossible for each person affected by the decision to offer proofs and reasoned arguments.  By adopting a unique and expansive form of data collection, Judge Hellerstein has introduced a modest way for courts to help parties chart the number, nature and interrelationship of claims for an otherwise, seemingly intractable dispute.

__

*Such information included the plaintiffs’ pedigree, medical history, tobacco use, alleged injuries, medical tests, diagnoses, symptoms, treatments, workers’ compensation recoveries, hours worked, location of work, safety equipment worn, and training received.

**Technically, all cases were consolidated before Judge Hellerstein under the Air Transportation Safety and System Stabilization Act.  The same act that created the original September 11 Victim Compensation Fund also gave the United States District Court for the Southern District of New York exclusive jurisdiction over all claims "arising from, or related to," the terrorist-related aircraft crashes of September 11, 2001

 

Posted by Adam Zimmerman on May 4, 2015 at 03:39 AM in Civil Procedure, Judicial Process, Torts | Permalink | Comments (2)

Friday, April 03, 2015

Case Highlight

Short, last post to highlight a disturbing Fourth Circuit case that illustrates how much excessive police invasion and violence our system is willing to tolerate (even when it means disturbing a jury verdict).  In Kane v. Lewis, the Fourth Circuit overturned an award of $250,000 to the father of a young Maryland man who was shot by a SWAT team.   Yes, the man came out of his room with a knife (found sheathed on the body later).  One plausible explanation for that? SWAT conducted a middle-of-the-night raid of his apartment, with no "knock and announce."  What basis for the subpoena that led six SWAT officers to break down his door?  Trace amounts of marijuana found in his trash. The search led to more (but not much more) of the same.   

And, with that uplifting conclusion to my PrawfsBlawg stint, I'd like to thank Howard for the opportunity to join the Prawfs community and all those who contribute to the site for their posts. 

 

Posted by Kate Levine on April 3, 2015 at 03:46 PM in Blogging, Judicial Process | Permalink | Comments (2)

Thursday, March 05, 2015

SCOTUS's incoherent media policies

I am on record (here and elsewhere) favoring video-recording of SCOTUS arguments. It follows that I view its current policy--same-day transcript, same-week audio, no-week video, same-day audio for certain important cases if the Justice so deign it--as a lesser approach. But even accepting the current scheme, I cannot understand the inconsistency as to what or how the Court defines as an important case meriting same-day audio. This week's arguments in King were not sufficiently important, even though the future operation of the Affordable Care Act might be at stake (at least in Red states), but next month's arguments in the same-sex marriage cases are important enough to merit audio by 2 p.m. that day.

Note that I am not complaining about the Court's move on the SSM case. I am just struck by the seeming randomness and incoherence in its definition of importance.

Posted by Howard Wasserman on March 5, 2015 at 04:40 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Tuesday, March 03, 2015

Alabama Supreme Court Enjoins Probate Judges from Issuing Marriage Licenses to Same-Sex Couples

As you may know (Howard has had some excellent coverage), we’re in the midst of a real-life fed-courts hypo here in Alabama as litigation continues over the state’s ban on same-sex marriage. There was another development this evening, when the Alabama Supreme Court issued a 134-page per curiam opinion enjoining Alabama probate judges from issuing marriage licenses to same-sex couples.

The ruling was prompted by a petition for a writ of mandamus that was filed earlier this month by two groups opposing same-sex marriage, purporting to be “relators” for the State of Alabama. The petition named four probate judges who had been issuing same-sex marriage licenses as respondents, and designated all other Alabama probate judges as “Judge Does ##1-63.” One of those Doe judges, Judge Enslen of Elmore County, sought to have the Alabama ban enforced and was redesignated as an additional relator-petitioner.

This evening’s order acknowledges that one Alabama probate judge—Judge Davis of Mobile County—is the subject of a federal injunction issued by Judge Callie Granade, who back in January had declared Alabama’s ban unconstitutional.

Here’s the full text of the order that appears at the end of today’s Alabama Supreme Court opinion:

The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator's petition for the writ of mandamus and showing cause, if any, why said probate judge should not be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion. As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.

If you want to get up to speed on what’s been going on, you can find copies of all the important orders, filings, and other documents at the Civil Procedure & Federal Courts Blog

Posted by Adam Steinman on March 3, 2015 at 10:20 PM in Civil Procedure, Constitutional thoughts, Current Affairs, Judicial Process | Permalink | Comments (4)

Thursday, February 12, 2015

Thinking Further About Cognitive Effort: Some Additional Thoughts on the "Simms Postulate"

My previous post explored the connection between the “closeness” of a legal issue and the level of cognitive effort that goes into its resolution.  In particular, I introduced an idea called the “Simms Postulate.”  Named in honor of a dubious but thought-provoking assertion that Phil Simms once made about the NFL’s “indisputable video evidence” rule, the Simms Postulate posits a positive correlation between cognitive effort and the closeness of an issue (or “issue-closeness” for short), holding that the harder a decision-maker works to resolve an issue, the more plausible it becomes to characterize the issue as “close,” “disputable,” “on the borderline,” etc.  The goal of the post (football pun intended) was to suggest that the Simms Postulate might be and indeed has been used when judges conduct doctrinal inquiries that turn on the closeness of an issue that has already been decided on its merits. 

I have thus far reserved judgment both as to the validity of the Simms Postulate itself and as to its utility as a tool of legal analysis.  But let’s now open that door.  Specifically, this post identifies and discusses five questions that strike me as potentially relevant to the overall value of the Simms Postulate. To those of you expecting a comprehensive and definitive normative conclusion, I must apologize in advance:  What follows is tentative and conjectural, aimed more at beginning an evaluation of the subject rather than completing it.  To those of you who like to read short blog posts, I should also apologize. I really didn't intend for this one to go on for so long, but, alas, it may now be eligible for the so-called “tl;dr” treatment. With those caveats offered, however, let me share some highly preliminary thoughts:

(1)  Does cognitive effort always signify issue-closeness?

The answer to this question has to be “no.”  Just because an individual has labored over the answer to a legal question does not mean that reasonable minds may disagree as to what that answer should be.  For one thing, high cognitive effort may simply signal a decision-maker’s unfamiliarity with (or inability to grasp) the law/facts that are implicated by the question itself.  Under those circumstances, high levels of cognitive effort may be expended, but only for the purpose of realizing that the answer to a question turns out to be fairly straightforward.

Somewhat more interestingly, even “expert” decision-makers with firm knowledge of a subject might sometimes end up devoting significant cognitive energy to resolving an issue whose answer turns out to be clear.  The truth of Fermat’s Last Theorem is now beyond doubt, but it took mathematicians over 350 years to show why.  I suppose that’s another way of saying that complexity is not the same thing as closeness: Some problems might be very difficult to solve ab initio, but once the solution emerges, no other answer is possible. Now whether there exist distinctly legal problems of this sort strikes me as an interesting question, but to the extent that such problems exist (perhaps, e.g., certain calculations of tax liability under the Internal Revenue Code?), then the complexity/closeness distinction is worth bearing in mind.

Still, even if cognitive effort does not always signify closeness, it might still prove to be a good enough indicator of closeness, at least in some circumstances.  So, the absence of an ironclad link between the two variables doesn't necessarily disqualify the Simms Postulate across the board.

(2)  Do we need a proxy for issue-closeness?

Phrased less kindly, this question asks whether the Simms Postulate poses a solution in search of a problem.  If it turns out that the relevant decision-makers are fully capable of asking directly whether a given constitutional right is “clearly established,” whether a given legal claim is “frivolous” or “substantial,” whether an agency’s reading of a statute is “reasonable,” etc., then why bother using an indirect proxy instead?  Even if valid, the Simms Postulate may not be needed; at best, it would simply complicate a set of inquiries that judges are already well-suited to perform.

The answer to this question depends in part on the findings of human psychology, a subject that falls outside the scope of my limited expertise.  Theoretically, though, the findings would have to show (or do in fact show?) that direct estimations of issue-closeness are likely to be biased or distorted in a systematic way. (Perhaps, for instance, I am hardwired to resist the sort of cognitive dissonance that would arise from suggesting that an issue I myself have decided in one way might reasonably have gone the other way.)  And if the findings did not indicate any such bias, then any need to rely on the Simms Postulate would indeed become less pressing.

What I might propose, however, is another way of framing the question that doesn't stack the deck so heavily against the Simms Postulate. Rather than ask whether it should displace a direct inquiry into “issue closeness,” we might more modestly ask whether the Simms Postulate could usefully inform such an inquiry.  When directly evaluating the closeness of a legal issue, a decision-maker will often look to several different variables: the language of the applicable text, the instructiveness of the applicable case law, how other judges have evaluated the closeness of analogous issues, etc.  Why not throw the added variable of “cognitive effort” into the mix? And indeed, if one revisits the examples I highlighted in my previous post, one sees the Simms Postulate functioning in this way, with the cited indicia of cognitive effort sometimes acting in concert with—rather than instead of—other variables that support the ultimate conclusion. If that is the relevant use of the postulate, then the urgency of the psychological question goes down. The usefulness of the Simms Postulate would no longer depend on a showing that judges suffer from systematic biases of other cognitive deficiencies when attempting to measure issue-closeness directly.

(3)  Do superior, alternative proxies exist?

Related to Question (2), we might wonder whether there exist easier or more reliable ways of approximating issue-closeness.  One immediate such candidate is the extent of disagreement that exists across a group of decision-makers.  Consider, for instance, the recent suggestion of Eric Posner and Adrian Vermeule—thanks to an earlier commenter for the pointer!—that judges might consider the votes and positions of their peers when evaluating the reasonableness of an agency interpretation. (Consider also the somewhat related suggestion of Vermeule and Jake Gersen that Chevron deference might be better implemented by way of a supermajority voting rule on multi-member courts.)  If, in short, “close” legal questions are questions on which reasonable minds might disagree, then the extentof judicial agreement or disagreement on the merits could in theory provide valuable information as to the closeness of the question itself.

Even if imperfect (and Posner and Vermeule do highlight potential complications with their approach), the “judicial-disagreement” metric may well be superior to the “cognitive effort” metric—superior enough, in fact, as to render the latter of limited usefulness.  On the other hand, the Simms Postulate might still remain useful in scenarios where only a single decision-maker has rendered a determination on the merits and thus lacks information as to other decision-makers’ views.  Furthermore, investigations into cognitive effort and investigations into judicial disagreement might sometimes operate alongside one another in a mutually supportive way.  Posner and Vermeule suggest, for instance, that one judge might sometimes wish to compare her own level of confidence about the rightness or wrongness of a position with the confidence levels of her colleagues, so as to gauge the depthof judicial disagreement in addition to its breadth.  And in that scenario, it still might be helpful for Judge 1 to ask whether Judge 2 struggled mightily with the issue or instead resolved it with ease.

(4)  How do you measure “cognitive effort”?

Three possibilities come immediately to mind. First, we might look to opinion length. Second, we might look to deliberation time. And third, we might look to first-person testimony. A few quick notes on each:

  • Opinion Length: The intuition here is that a lengthier opinion reflects a greater amount of cognitive effort than does a shorter opinion.  Notice that the claim is not that lengthier opinions require more effort to write—a point that is likely true but also immaterial to the question we are considering here. Rather, the claim is that we can infer from a lengthy opinion that the opinion-writer worked hard in deliberating over the outcome.  That may be true to some extent, but other variables might still complicate the inference. Perhaps the opinion-writer is longwinded.  Perhaps the opinion-writer wanted to opine on some matter of tangential relevance.   Or, perhaps the case simply involved a large number of issues, each one of which required little-to-no effort to resolve.  Interestingly—and on that last point—I’ve come across a few unpublished district court opinions that went of their way to attribute their length to the number of issues raised in a habeas petition; thus preemptively rebutting any Simms-inspired claim that the length of the opinion says something about the “substantiality” of the petitioner’s grounds for relief.  See, e.g., Peterson v. Greene, 2008 WL 2464273 (S.D.N.Y. June 18, 2008) (“The length of this opinion is a function of the number of arguments made by Peterson, rather than of the merit, or even difficulty, of any of them. None of the grounds he presents in seeking habeas corpus with respect to either of his convictions has the slightest merit. Accordingly, the petitions are denied. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue . . . .”)
  • Deliberation Time: The intuition here is similar: when a decision-maker waits before rendering a decision, we might attribute the delay to an internal cognitive struggle: all else equal, the harder it is to decide a question, the longer one will wait before doing so.  Here too, however, delay may be attributable to any number of other factors: perhaps the decision-maker was busy working on other cases, perhaps the decision-maker was procrastinating, perhaps the decision-maker was agonizing over the stylistic aspects of an opinion, and so forth.  And the variable of deliberation time seems especially tricky as applied to multi-member bodies such as juries: True, a delayed verdict might indicate that all twelve jurors struggled with the question of whether to convict; but it also might indicate that a single stubborn juror held things up for a while.
  • First-Person Testimony:  Many doctrinal frameworks require judges to gauge the overall closeness of an issue that they themselves have already decided. So, if the evaluator of issue-closeness turns out to be the same person as the first-order decider of the issue, then that person might simple report on his or her own experience in deciding the issue as a means of justifying a subsequent decision regarding its closeness. “Trust me,” the judge might say, “I lost plenty of sleep trying to answer that question on the merits. Therefore, I conclude that the underlying claim was not frivolous.”  This metric carries the virtue of directness; but it is also susceptible to manipulation: The first-person decision-maker has privileged access to the workings of her own mind, and so is well positioned to exaggerate or downplay the degree of cognitive effort expended on the question.

A final point regarding all of these metrics: Recall my earlier observation that cognitive effort does not itself always signal issue-closeness.  So, even if long opinions, delayed judgments, or subjective descriptions tell us something about the level of cognitive effort that a judge has devoted to a legal problem, it does not necessarily follow that those problems qualify as “close” (as opposed to, say, “complex”).  That point, along with the difficulties I have attributed to each individual metric, suggests that exclusive reliance on the Simms Postulate is a risky business indeed. Rather, the postulate likely works better when accompanied by other independent measures of issue-closeness and/or substantive arguments concerning the nature of the issue itself.

(5)  Are there other factors to consider?

Of course there are other factors to consider!  For example, would an open embrace of the Simms Postulate induce first-order decision-makers to engage in unwanted strategic behavior? (E.g., “Because I want to deny qualified immunity, I’ll write a really short opinion on the merits and then point to that opinion to support my conclusion that the government official violated a clearly established right.”) Or might it simply confuse first-order decision-makers who otherwise might be trying to behave sincerely? (E.g., “Gosh, I’m taking a while to write this opinion. Does that mean the issue is more difficult than I initially thought? I guess I need to consider the issue further…”).  Should judges be more inclined to use the Simms Postulate when evaluating the closeness of an issue that they themselves have decided, or when evaluating the closeness of an issue that someone else has decided?  Are there other metrics of issue-closeness beyond the three I considered above? To the extent I do want to invoke the Simms Postulate, precisely whose cognitive efforts should figure into the mix? (e.g., When I am reviewing an agency’s interpretation of a statute, should I consider the amount of effort that agency officials expended on the interpretive question, in addition to the amount of effort that I myself expended?). And to what extent does the applicability/usefulness of the Simms Postulate vary according to the different ways that doctrines formulate and accord significance to issue closeness? (e.g., Does it make more sense to consider cognitive effort when considering whether a claim is "frivolous" than it does when considering whether an agency position is "reasonable," or when considering a government official has violated "clearly established law"?) And so on...

***

There is, I admit, something silly about all of this.  Real-world invocations of the Simms Postulate are infrequent at best and not likely to increase in frequency any time soon.  And, as my analysis suggests, this may well be so for good reason.  Perhaps the game simply isn't worth the candle, especially given that courts can and do make arguments about issue-closeness without in any way relying on the variables I have discussed in this post. At the same time, I figure that the Simms Postulate is in the air enough to justify some focused thinking about its underlying merits. Tackling the issue won’t win us any games, but it may at least allow us to move the ball forward and score a few analytical points.

Posted by Michael Coenen on February 12, 2015 at 11:35 AM in Judicial Process | Permalink | Comments (1)

Monday, February 09, 2015

Cognitive Effort as a Proxy for Closeness

Phil Simms, former quarterback for the New York Giants and current NFL commentator for CBS, once made a comment about instant replay review that has stuck with me over the years. I can’t remember the precise context of the remark, but the situation was something like this: The referee was “in the booth” deciding whether or not to affirm or reverse the call on the field, and he had been re-watching the relevant video evidence for a significant amount of time.  Simms then proceeded to suggest that this fact in and of itself conclusively demonstrated that the call on the field should be upheld.  Reciting the applicable standard of review, which permits reversal only on the basis of “indisputable video evidence,” Simms asked how it could be possible for the video evidence to be “indisputable” when the referee himself was struggling with the question of whether to affirm or reverse the call.  In other words, Simms didn’t even need to look at the replay to know that the call should be reversed; the referee’s failure to render a quick determination was itself sufficient to demonstrate that the video evidence did not “indisputably” support reversal.

Simms's reasoning on this point struck me as unpersuasive. The referee was not asking whether the video evidence supported reversal; rather, the referee was trying to decide whether the evidence did so in an indisputable manner.  In other words, the referee was applying the very same standard that Simms himself had invoked.  So, while the length of the referee’s deliberations might well have indicated the existence of a close question, that question itself went to the indisputability of the evidence—not to the objective rightness or wrongness of the original call. In other words, while it may have been right for Simms to draw a connection between the length of the referee’s deliberations and the disputability of the question that referee was asking, it was wrong to infer further that the evidence was in fact disputable:  What was disputable was not the video evidence itself, but rather the question of its indisputability.

Still, I liked where Simms was going with the idea. The core of his insight, which I’ll call the “Simms Postulate,” is that under some circumstances, the level of cognitive effort that a decision-maker expends on answering a question can tell us something about the “closeness” of the issue being decided.  And that point is a potentially useful one for legal decision-makers, given that many different areas of doctrine require judges to gauge the closeness of a question that has already been considered on its merits.  Consider, e.g., the qualified immunity rule, which generally shields government officials from monetary liability unless they have violated “clearly established” law. Qualified-immunity determinations sometimes occur after a merits determination has already been made, meaning that, in theory, a judge might use the level of effort that went into the merits determination as a sort of proxy for the clarity-level of the law that a government official violated. So, for instance, if a judge has worked hard to determine that a government official did in fact violate a constitutional right, then the judge might be justified in citing her own struggles on the merits question as a reason to conclude that the right itself was not “clearly established.” Alternatively, if the judge could identify a legal violation with little effort, then that judge might cite the ease of her own merits-analysis as a reason to deny qualified immunity.

Now, I am not immediately aware of any qualified immunity cases that utilize the Simms Postulate.  Interestingly, however, when one expands the inquiry to include other areas of doctrine, one finds some traces of the idea at work.  Here are a few examples:

  • In Melton v. City of Oklahoma, 879 F.2d 706, 733 (10th Cir. 1989), the Tenth Circuit considered a prevailing defendant’s request for attorney’s fees, which under applicable law, could issue on a showing that the plaintiff had raised “frivolous” claims. The Tenth Circuit denied the request, pointing to its earlier disposition of these claims on the merits.  “The sheer length of this opinion,” the court reasoned, “should suggest that the issues raised by plaintiff in his lawsuit were not frivolous.”
  • In Robles v. Dennison, 745 F. Supp. 2d. 244, 302-03 (W.D.N.Y. 2010), a U.S. district court denied a habeas petition brought by an inmate challenging the constitutionality of a state Parole Board’s review procedures.  Having denied the habeas petition, however, the court went on to grant a certificate of appealability.  Pointing to other judges’ “apparent struggle” to resolve analogous questions in earlier cases, the district court found more than ample basis for concluding that the petitioner’s constitutional objections were “substantial” enough to warrant appellate review.  “The length and detail of [these judges’] opinions,” it concluded, “belie the contention that these inmates’ claims are easily dismissed.”
  • In United States v. Sandoval-Gonzales, 642 F.3d 717, 726 (9th Cir. 2011), the Ninth Circuit found that a prosecutor’s misstatements of law during a criminal trial constituted an error that was prejudicial to the defendant. In so concluding, the court cited to the “length of the jury's deliberations,” which “weigh[ed] against a finding of harmless error because lengthy deliberations suggest a difficult case.” In other words, the lengthiness of the jury’s deliberations indicated that the question of guilt or innocence was a close call, which in turn meant that even small errors at trial might well have tipped the scale against the defendant.

I’ll stop here, but hopefully you get the idea: The Simms Postulate, though hardly an omnipresent feature of legal doctrine, is not altogether absent from it either. And I suspect that there are other examples beyond the few I have managed to come up with on my own—indeed, if anyone is aware of other examples, please do feel free to share them. 

Of course, none of this is to say that judicial actors should rely on the Simms Postulate when attempting to gauge the closeness of a particular legal question or issue.  The link between closeness and cognitive effort is hardly airtight, and I can imagine some good practical reasons to eschew reliance on the Simms Postulate even where its underlying logic is sound. For example, heavy expenditures of cognitive effort on a question might sometimes relate to variables other than the question’s “closeness”—perhaps they tell us more about the decision-maker’s cognitive abilities, the high total number of different sub-issues implicated by the question, or the overwhelming complexity of the law/facts underlying the question. And perhaps open reliance on the Simms Postulate would in any event invite undesirable forms of strategic gamesmanship, with decision-makers pretending to struggle (or not to struggle) with a merits question as a means of bolstering support for a predetermined, second-order conclusion about the question’s closeness (or lack thereof).  I may try to address some of these questions in a future post, but I can’t offer any guarantees.  What I can say for sure, though, is that if you don’t hear from me for a while, you should infer that I’m having trouble coming up with a satisfactory answer.

Posted by Michael Coenen on February 9, 2015 at 09:23 AM in Judicial Process | Permalink | Comments (2)

Thursday, February 05, 2015

Plaut v. Spendthrift Farm and the Sequencing of Constitutional Claims

Plaut v. Spendthrift Farm is a separation-of-powers decision concerning Congress’s (lack of) power to mandate the reopening of final judgments in federal courts. Specifically, the Court in Plaut held that Congress had violated constitutional separation-of-powers requirements by requiring U.S. district courts to reinstate certain federal securities-fraud cases that they had previously dismissed as time-barred.  The separation-of-powers issue is interesting in its own right, but I’ve lately found myself wondering about a separate aspect of the opinion—namely, the Court’s justification for its decision not to address an alternative argument concerning the defendants’ due process rights under the Fifth Amendment.

That the Court in Plaut prioritized resolution of one constitutional issue over another is hardly remarkable: Litigants in Supreme Court cases routinely assert alternative constitutional grounds for relief, and the Court very often chooses to focus on one such ground while leaving the resolution of the other constitutional claims for another day. But Plaut is unusual in that the Court offered some explanation as to why it had chosen to sequence one constitutional claim (i.e., the separation of powers claim) ahead of another (i.e., the due process claim). Specifically, as Justice Scalia observed for the Plaut majority, resolution of the separation-of-powers claim would affect only the powers of the federal government, whereas resolution of the due process claim “might dictate a similar result in a challenge to state legislation under the Fourteenth Amendment.” The separation-of-powers claim therefore presented the “narrower ground for adjudication of the constitutional questions in this case,” and that was enough to justify the Court’s decision to “consider it first.”

Let’s call this the “Plaut presumption”: It’s a sort of variation/extension on the constitutional avoidance principles set forth in TVA v. Ashwander—applicable not to cases in which the Court considers both constitutional and nonconstitutional grounds for a holding, but rather to cases in which all of the potential grounds are constitutionally-based.  The Plaut presumption, in other words, calls for an intra-constitutional evaluation of narrowness, so as to yield a sequencing of constitutional adjudication that proceeds from most to least narrow.

Now, without looking into it the matter in much depth, I would hazard to guess that the Court has not fully committed itself to the Plaut presumption: In other words, I suspect we could identify several cases (both pre- and post-Plaut) in which the Court has arguably deviated from the course of confronting alternative constitutional arguments in a descending order of narrowness.  Still, the Plaut presumption remains at least theoretically interesting in light of its suggestion that one constitutional “ground for adjudication” can qualify as “narrower” than another, which in turn raises the question of how to evaluate the comparative narrowness/breadth of two or more constitutional claims. If, in other words, we were fully committed to the Plaut presumption, what criteria of narrowness should we look to in sequencing the resolution of multiple constitutional questions?  Here are a few possibilities:

  • Geographic Scope: This is the criterion relied on by the majority in Plaut. The separation-of-powers question counted as narrower than the due process question because the former carried implications for the federal government whereas the latter carried implications for both the federal government and state governments.  This criterion is sensible enough on its own terms: all else equal, a holding that binds 51 jurisdictions would seem to be broader than a holding that binds only one such jurisdiction. Still, the “geographic scope” criterion gets us only so far: Lots of cases, for instance, will involve claims that government action violates multiple constitutional rights—rights that apply more or less equally against the federal and state governments. Lots of other cases will involve multiple alternative claims concerning Article I and constitutional structure—claims that have little, if anything, to do with the states.  In those sorts of cases, then, geographic scope alone cannot be definitive.  What is more, as we will soon see, focusing exclusively on geographic criteria might obscure other important features bearing on the overall narrowness/breadth of a given constitutional claim.
  • Political Reversibility: One of the reasons why Ashwander favors the resolution of nonconstitutional over constitutional claims is that the former, unlike the latter, are reversible through political means.  At first glance, that logic would seem inapplicable to cases involving only constitutional claims, but on further investigation some possibly useful distinctions might emerge. For example, suppose that plaintiffs have challenged a state law on the ground that it violates dormant Commerce Clause doctrine and also Privileges and Immunities Clause doctrine.  Plaut’s agenda-setting logic would likely favor prioritization of the dormant Commerce Clause claim (on the theory that Congress can always override a dormant Commerce Clause decision—but not a P&I decision—with which it disagrees).  And to the extent there exist other politically reversible rules of “constitutional common law,” Plaut would favor resolving claims arising under those rules before claims arising under the operative constitutional propositions themselves. (And, of course, if ever a party argued that a law violated, inter alia, the unamendable constitutional guarantee of equal state representation in the Senate, then that claim should be pushed to the very, very back of the line!)
  • Means of Compliance: Related to, but ultimately distinct from, the question of political irreversibility is the relative degree of flexibility political actors would have in complying with a given constitutional holding. To take an abstract example, striking down a government program on procedural due process grounds might often afford the government a greater degree of remedial leeway than would striking down the same program on substantive due process grounds: the procedural due process holding would simply limit the means by which the government could deprive an individual of life, liberty, or property, whereas the substantive due process holding would categorically foreclose the government from achieving the deprivation, period. Similarly, perhaps, the Constitution’s equality-related guarantees will provide a “narrower” basis for decision than the Constitution’s substantive-guarantees, in the sense that the former might sometimes permit the government to choose between subjecting either everyone or no one to a form of preferential treatment, whereas the latter will always require the government to pursue the former course.  And, we could imagine other more context-specific bases for concluding that different theories of constitutional harm might afford government actors more or less regulatory freedom in the choice of how to alleviate that harm. 
  • Precedential Impact: Another axis along which to evaluate the relative narrowness of alternative constitutional grounds for relief would relate to the precedential status quo.  Suppose that one constitutional claim rests on a rule of constitutional law that is well established and applies clearly to the facts of a case; suppose that an alternative constitutional claim rests on a murkier constitutional standard whose application to the facts is anything but clear. Under these circumstances, we might understand the Plaut presumption to favor the “easy” constitutional claim over the “difficult” constitutional claim, on the theory that resolving the easy claim will merely confirm a point we already understood the applicable precedents to establish, whereas resolving the difficult claim will be more likely to result in a “new” rule of constitutional law that we had not previously encountered.  And it would apply even more forcefully in cases presenting a theory of constitutional relief that depend on a reconsideration of previous decisions. (Why go to the trouble of confronting difficult questions about stare decisis, the argument would go, when you could reach the same result without overruling any prior precedents at all.)  

Anyway, those are some preliminary thoughts as to how someone fully committed to the Plaut presumption might go about applying it in future cases.  Interesting questions remain, however, as to (a) whether it's worth thinking about narrowness at all in Plaut-like cases; (b) if so, whether additional criteria of narrowness should factor into the inquiry (and/or whether any of my proposed criteria should be excluded); and (c) what to do when one criterion of narrowness appears to conflict with another. Suppose, for instance, that litigants have challenged a federal law on both structural and rights-based grounds, and suppose further that the rights-based argument already has some support for it under existing law whereas the structural argument presents a genuine question of first impression. The “geographic-scope” criterion would favor resolution of the structural argument prior to the rights-based argument, whereas the “precedential-impact” criterion would favor the opposite approach.  How, under the Plaut presumption, should we sequence the issues?

A final thought involves how these criteria might influence our thinking about the sequencing rule of Ashwander itself.  Ashwander, as I’ve noted above, embraces the “political reversibility” criterion of narrowness.  But we can imagine constitutional/nonconstitutional cases in which that criterion might run up against others that point in the other direction. Suppose, for instance, that challengers to a law had asserted a fairly straightforward constitutional ground for relief and a much more complicated/uncertain statutory ground for relief? Or what about the choice between a structural constitutional claim that would impact only the federal government, and a rights-based nonconstitutional claim that would impact both the feds and the states? Ashwander would say: “address the nonconstitutional claim first.”  But if variables like precedential impact and geographic scope are also relevant to our evaluation of the claims’ respective narrowness, then even from a pro-minimalist, pro-avoidance standpoint, we might at least sometimes want to reach the constitutional issue before confronting its nonconstitutional counterpart.

Posted by Michael Coenen on February 5, 2015 at 09:58 AM in Constitutional thoughts, Judicial Process | Permalink | Comments (3)

Monday, February 02, 2015

Hello, and a Question About Hobby Lobby

Many thanks to the fine folks at Prawfsblawg for the invitation to guest-blog this month. I’ll start my stint by flagging a passage from the Hobby Lobby opinion that I’ve lately been scratching my head about. One of the questions at issue in Hobby Lobby was whether the government had “substantially burdened” the religious beliefs of the plaintiffs by requiring them to offer employer-provided health insurance plans that covered various methods of contraception. (The plaintiffs said “yes,” the government said “no”.) And on this question, several amici for the government advanced an argument that the government itself had not raised: The amici claimed that the plaintiffs could tolerably evade the contraceptive mandate by dropping their employees’ coverage and incurring a financial penalty instead. The argument, in other words, was that the penalty was small enough to make effectively available to the plaintiffs the option of not offering an employer-provided health care plan at all. And therefore, the amici continued, no “substantial burden” could result from rules applicable to plans that the plaintiffs were not in fact required to provide.

Anyway, my question concerns not so much the substance of this claim as it does the Court’s chosen means of addressing it. First and foremost, Justice Alito’s majority opinion observed that the government itself had never raised the claim, which in turn militated against any resolution of the issue by the Court. See id. at 2776 (“We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, and there are strong reasons to adhere to that practice in these cases.” (citations omitted)). Almost immediately thereafter, however, the Court went on to highlight various shortcomings in the argument itself. But how, you may wonder, did the Court manage to reconcile its stated refusal to reach the issue with its subsequent reaching of the issue? It did so by explaining that: “[E]ven if we were to reach this argument, we would find it unpersuasive.”

So, my question is this: What is the difference between saying (a) “We find this argument unpersuasive,” and (b) “Even if we were to reach this argument, we would find it unpersuasive”? The best I can come up with is something involving precedential effect; the latter statement, unlike the former, might more easily be dismissed as dicta in a later case, thus affording the Court a bit more flexibility in confronting a similar issue down the road. But even so, the statement still strikes me as unusual. I’m not aware of many cases in which the Court has consciously flagged a part of its opinion as non-binding dicta (normally, the “dicta” label gets applied after the fact, as a means of doing away with some difficult language from a prior opinion that a subsequent majority of Justices would rather not follow). And in any event, if the Justices really did find the argument unpersuasive, why were they reluctant to say so directly?

Anyway, I’m curious whether anyone has any thoughts on what the Court was up to here. I probably didn’t follow the Hobby Lobby litigation closely enough to offer an opinion on this language, but if I were to opine on it, I’d say it was confusing.

Posted by Michael Coenen on February 2, 2015 at 09:43 AM in Judicial Process, Religion | Permalink | Comments (5)

Saturday, January 03, 2015

The process of marriage equality, redux

I do not have the energy to provide background; SCOTUSBlog offers a nice analysis of what is happening in Florida, as an opinion by U.S. District Judge Robert Hinkle (N.D. Fla.) invalidating Florida's ban on marriage equality is due to take effect next Monday evening. I am simply going to link to a bunch of documents and ask whether anyone in the State of Florida has a clue about procedure, remedies, or jurisdiction.

First is a December memorandum from the attorney for the Florida Association of Clerks and Comptrollers stating, correctly, that Hinkle's a decision and injunction is binding only on the Washington County Clerk of Courts (named as defendant) and only as to the named plaintiff; all other clerks are not legally obligated to issue licenses and may, in fact, be prohibited by state law from doing so and subject to criminal penalties. (Slate's Mark Joseph Stern, somewhat losing it, labels the memo "bogus," "deceptive and borderline unethical," and "willfully misleading").

Judge Hinkle responded on Thursday with this order acknowledging that his injunction is as limited as the FACC lawyers suggested. But he then goes on to insist that "the Constitution requires the Clerk to issue" (italics in original) licesnes to other couples. Implicitly, that means the Constitution require all other clerks to issue licenses. And it reminds all clerks that other litigation may follow his ruling and that they may be subject to suit, injunction, and attorney's fees if they do not follow his ruling.

The FACC's lawyer responded that, in light of the new order (which it also interprets as threatening money damages, although the order says no such thing), all "clerks should follow the judge's ruling for all marriage-license applications or face the consequences identified by Judge Hinkle." Florida Attorney General Pam Biondi similarly responded: "This office has sought to minimize confusion and uncertainty, and we are glad the Court provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed."

Finally, the Orange County Clerk of Courts sought and received a state declaratory judgment; the state judge agreed that the state prohibition on SSM violates the Constitution (essentially adopting and incorporating by reference Judge Hinkle's opinion), that the clerk could rely on the federal decision, and would not be violating state law or be subject to criminal penalties if she issues licenses to same-sex couples once the Hinkle order becomes effective next Monday.

My coments on why this all is so insane after the jump.

The original memo from the FACC's lawyer had it right. The district court's injunction only requires the named defendant clerk to issue a license to the named plaintiff. There was no class of plaintiffs or defendants before the district court. There was no statewide officer enjoined to issue, or order the issuance, of licenses across the state. The district court's declaration that the SSM ban violates the Fourteenth Amendment is not binding or preclusive as to any non-party and is not binding on any other federal or state court. The memo is a bit overwrought in suggesting that a clerk is going to be prosecuted for issuing a license. But the basic point--the district court decision is nothing more than persuasive authority to all other couples and all other clerks--is correct.

None of this is new, of course. We have been discussing procedure underlying marriage equality since last summer, when, post-Hollingsworth, we were left with an incredibly (and possibly unlawfully) overbroad injunction in California and procedural wrangling about what happens next. But Judge Hinkle's original injunction is not so broad, as he acknowledges. So any non-party clerk remains free to deny a license in light of state law on the books; it then is on any couple wanting a license to sue and challenge the constitutionality of the denial and the state SSM ban, likely winning on the strength of the persuasiveness of Hinkle's opinion. This is all messy and inefficient, but that is how constitutional litigation works, at least short of a decision by SCOTUS or a class action.

So what to make of Judge Hinkle's supplemental order? It is either unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four. That everyone seems to be praising this order for "clarifying" things shows how just confused everyone is.

The italicized insistence that the Constitution requires the issuance of licenses by all clerks to all same-sex couples is nonsense. Yes, licenses are required by the Constitution, as interpreted by Judge Hinkle. But that interpretation is not the only one and it does not bind (or even necessarily influence) anyone not a party to that case. There is controversy enough over whether SCOTUS does/should get the last word on constitutional meaning and what the Constitution requires; there is no way that a single district judge could possibly have the last word, even within one state. But the supplemental order insists that is the effect of the original  decision--in essence, "I have announced what the Constitution means with respect to the Fourteenth Amendment and marriage equality and every clerk in the State of Florida is bound by that meaning I have identified (even if not subject to the injunction)." One district court opinion cannot be read to have that much binding effect, particularly on people outside of that judicial district and not subject to the court's jurisdiction or venue.

Moreover, since Article III courts cannot issue advisory opinions, it is logically impossible to separate the Constitution (as interpreted) from the injunction or to have the former apply more broadly than the latter. The only people who can be bound by the court's interpretation are those bound by its remedial order. And Hinkle concedes the narrowness of the original injunction.

Beyond that, the supplemental order does not tell us anything we did not already know (or should have already known). Any same-sex couple could have sued any county clerk (beside Washington County) at any time to invalidate the ban and, if successful, could have gotten an injunction and attorney's fees; Judge Hinkle's original decision would have been important binding precedent in that lawsuit, but nothing more. But the right of other couples to bring that suit does not emanate from Judge Hinkle or his order. And the threat of injunction and attorney's fees against a non-compliant clerk is a consequence of basic rules of constitutional litigation of which everyone should have been aware even without the supplemental order.

Nor should it be news that any clerk may (italics again Judge Hinkle's) follow that original ruling that the ban violates the Fourteenth Amendment. Of course a clerk may follow the ruling, for the same reason she could ignore it--absent injunction, preclusion, or binding precedent, every clerk retains the authority to decide her legal and constitutional obligations, unless and until her interpetation is overruled by a higher state official or a binding court decision. Otherwise, note the internal contradiction of the supplemental order--a clerk who agrees with him may follow the ruling, but a clerk who disagrees must follow the ruling.

Everyone is also reading the supplemental order to threaten money damages for any clerk who does not issue a license. I do not read the order as suggesting damages as a consequence. But even if Hinkle did threaten that, I do not see how any damages action could overcome qualified immunity--that it was clearly established that the Fourteenth Amendment required clerks to issue licenses to same-sex couples. There is no binding precedent on this in Florida; neither SCOTUS nor the Eleventh Circuit has spoken. We have a circuit split nationally (even if it is largely one-sided) and decisions from one federal and two state trial judges within Florida. I believe that banning same-sex marriage violates the Fourteenth Amendment. But no way is that conclusion clearly established, as that concept is currently understood. So damages are not remotely possible.

The only appropriate procedural move was by the Orange County Clerk of Courts, who got that state-court declaratory judgment. In essence, the state court established a state-court order that the SSM ban is unconstitutional and that the Orange County Clerk, as a party to the state-court action,is not bound by the state prohibition, is free to issue licenses to same-sex couples, and is now protected by an order of a court that actully had jurisdiction over her (which Judge Hinkle did not).

As a policy matter, I like where we end up: every clerk in the state is likely to issue marriage licenses to same-sex couples and the attorney general is not going to stop them. A mass ceremony is planned for just after midnight Tuesday in Broward County. And I am surprised that Florida, which hardly the leading edge on SSM, is not going to be one of the recalcitrant states dragged kicking and screaming to marriage equality by SCOTUS. Still, it would have been nice if everyone involved, including the federal judge, had a better sense of the underlying processes.

Posted by Howard Wasserman on January 3, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Sunday, November 23, 2014

Judicial Elections and Historical Irony

Last week I was privileged to participate in a conference in New Mexico on the judiciary.  The debates and assigned readings focused especially on judicial elections (a new issue-area for me).   There, I learned that a little historical context can radically change the aspect of many current debates about the choice between an elected or appointed judiciary (and the many variants in between, including systems of merit selection and appointment with retention election).  

“Judicial independence” is the rallying cry today for those who want to eliminate or at least tame judicial elections in the states.  This “judicial independence” variously refers to judges’ freedom or willingness to take unpopular stances on policy and constitutional interpretation (think of same-sex marriage in Iowa), or judges’ impartiality and freedom from undue influence in particular disputes (think of business complaints that judges have become too thick with the plaintiffs’ bar, or of corporate efforts to use campaign contributions to buy case outcomes as suggested in Caperton v. Massey Coal).  

 With many judicial elections now under the shock of increasing party polarization, interest-group mobilization, and campaign spending, it seems likely that these calls to end judicial elections for the sake of judicial independence will only intensify.  Yet one of the historical ironies I learned from the conference readings is that “judicial independence” was also the primary value that was put forward as the rationale for creating elected judges in the first place.  

 In the mid-nineteenth-century campaigns for an elected judiciary, however, the sort of judicial dependence that was especially targeted by reformers was judges’ dependence on state legislatures and associated party machines that had become corrupt or spendthrift (especially in economic development projects).  It was hoped that a switch to elected judges would empower judges to reign in discredited legislatures, policing them for their fidelity to the state constitutions (“the people’s law”) while keeping judges accountable to the people through elections (and later, recalls).  

 The longer history of elected judges in the United States offers many other enlightening contrasts with today’s premises. (The stance of the professional bar towards the desirability of elected judges flipped over time.  The dominant presumption about whether appointed or elected judges are the ones more likely to lean conservative or liberal also flipped over time…)  For now, however, I only want to ask one question of this rich history—whether it makes plausible the possibility that, in some states, contemporary reform movements to eliminate elected judges will have unintended adverse consequences for democratic responsiveness and the separation (or balance) of powers between the judiciary and other branches of government.

 My question is prompted--not by a preference for elective over appointive judiciaries--but by the historical scholarship that shows that the nineteenth-century push for elected judges was often packaged with—and used as a justification for—very substantial expansions of judicial power and very substantial curtailments of legislative power.  Making state judges electorally accountable was supposed to make it safe to greatly expand the role of judicial review of legislation, and to give judges much more independence from the other branches in the terms and conditions of their appointments.  

 This new form of judicial accountability to the electorate even justified a judicial role in which judges were tasked to police procedural constraints on the legislatures, including rules that had previously been considered essentially internal to the legislature (perhaps—I wonder—starting to unravel some of the Anglo-American tradition of legislative autonomy and privileges that had taken centuries to develop).  Meanwhile, this change in the role of judges may also have coincided with the decline of juries.

 If much of the nineteenth-century judicial empowerment and legislative disempowerment was enacted on the premise of it being bundled with judicial elections, then I ask—if some states now revert to appointed judiciaries without also considering the larger package—do they risk an institutional imbalance or loss of democratic accountability in the legislature and executive?  (Perhaps this question is already asked and answered somewhere in current policy debates or scholarship?)

 It would be nice to think these structural matters of constitutional development tend towards equilibrium in some organic fashion.  At the least, we can expect that state legislatures and executives will long retain the cruder sorts of tools for reining in abuses of appointed judges.  Depending on the particular state, these might include decisions about judicial budgets, impeachment or removal of a judge upon legislative address, jurisdiction-stripping, court packing, or informal control of judges through the influence of political parties and the professional bar.  Nonetheless, I find it just as easy to imagine that judicial empowerment at the expense of legislatures might be ‘sticky’, if never a one-way ratchet.  Here I am influenced by the social science accounts that suggest that, around the world today, judicial power has been much expanding at the expense of legislatures.  I am also thinking about the possibility that there may be institutional biases in some states against structural adjustments (like ’single subject rules’).

In theory, the public should have the capacity to ensure that one branch of government never gets too big or unaccountable.  In the many states that are characterized by constitutions relatively easy to amend, constitutional change is, after all, supposed to occur more through formal amendment processes than through judicial interpretation.  Even so, query whether such large structural questions lend themselves to retrospective scrutiny and popular oversight.  (This is a real, not rhetorical, question for someone who has a lot more knowledge about the states and judicial reform movements than I now have.)

 John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006)

 John Ferejohn, “Judicializing politics, politicizing law,” Law and Contemporary Problems 65 (3): 41–68 (2002).

 Jack P. Greene, The Quest for Power: The Lower House of Assembly in the Southern Royal Colonies (Norton, 1972)

 Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard Univ. Press 2012)

 G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (Stanford Univ. Press 2012)

Posted by Kirsten Nussbaumer on November 23, 2014 at 10:34 PM in Constitutional thoughts, Current Affairs, Judicial Process, Law and Politics, Legal Theory | Permalink | Comments (7)

Thursday, November 13, 2014

Religion's Private Law Turn II: No Sunday Arbitration

Yesterday I posted about what I've called religion's "private law turn," where questions at the intersection of law and religion increasingly hinge on applications of private law as opposed to public law.  I also promised examples so here's my first--one that I take up more fully in a forthcoming piece, Arbitration's Counter Narrative: The Religious Arbitration Paradigm, 124 Yale L. J. (forthcoming 2015).

Section 5 of New York's Judiciary Law reads as follows: "A court shall not be opened, or transact any business on Sunday."  Fair enough you say.  But in the past year or so, two New York courts (here and here) have applied this law to rabbinical court arbitrations--arbitrations addressing commercial disputes--by employing the following logic: (1) A judicial proceeding cannot take place on Sunday; (2) “Arbitration is a judicial proceeding and arbitrators perform a judicial function"; and (3) therefore, “the arbitration proceedings and award herein are void upon the ground that at least one hearing was held on a Sunday."  Based on this logic, both courts vacated arbitration awards where arbitration proceedings were conducted on Sunday.  Indeed, there's precedent for these decisions in New York going back nearly 200 years.

Now some have argued these decisions run afoul of the First Amendment.  Maybe it does (although I'm skeptical this claim wins given how the Supreme Court has treated Sunday closing laws generally).  But more than a constitutional problem, what this case misses is the way in which some forms of arbitration--specifically religious arbitration--are not equivalent to "judicial proceedings."  It may be true that much arbitration is functionally equivalent to litigation--albeit faster and cheaper--in that both are mechanisms to resolve disputes between parties (Daniel Markovits has referred to this view as the "displacement thesis" and it has been adopted by and large by courts and scholars).

But not all arbitrations are simply about resolving a dispute.  In particular, when religion and commerce meet under the rubric of religious arbitration, the parties have not selected the forum with the sole objective of identifying a more expedient and inexpensive version of litigation.  Religious arbitration entails submitting a dispute to religious authorities for resolution in accordance with religious law.  And a decision to select such a forum to resolve a dispute has much less to do with expedient dispute resolution and more to do with the shared commitments and values of the parties.  In this way, religious arbitration is often part commerce and part religion; and to simply conflate such arbitrations under the rubric of judicial proceedings fails to consider the unique objectives at stake in the context of religious arbitration.  

Indeed, in this way, these Sunday arbitration cases represent a classic mistake courts make when encountering religion's private law turn.  Instead of unpacking the unique dynamics at stake when religion and commerce overlap, courts reflectively invoke familiar categories--a mistake in this case not of constitutional law, but of a arbitration law.

Posted by Michael Helfand on November 13, 2014 at 12:25 AM in Judicial Process, Religion | Permalink | Comments (6)

Tuesday, October 14, 2014

SEALS

Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.

Posted by Marcia L. McCormick on October 14, 2014 at 11:00 AM in Civil Procedure, Corporate, Criminal Law, Employment and Labor Law, First Amendment, Gender, Immigration, Information and Technology, Intellectual Property, International Law, Judicial Process, Law and Politics, Legal Theory, Life of Law Schools, Property, Religion, Tax, Teaching Law, Torts, Travel, Workplace Law | Permalink | Comments (0)

Monday, September 08, 2014

No Grants From the Long Conference?

The Court’s new policy of automatically re-listing cert petitions before granting them raises an interesting question: will the Court’s first conference of the new term (the “long conference”) generate any cert grants? This question has some practical importance and also draws attention to the Court’s frequently opaque operating procedures.

Here’s the background. In the past, the Court has generally voted on all petitions for certiorari at its first opportunity to do so—that is, at the first internal conference in which those petitions were considered. This conference date was publicly noted on the docket for each cert petition, and parties sometimes made strategic decisions based on that information. Only in unusual situations did the Court “relist” grant-worthy cases by postponing a vote on them until the next scheduled conference. A relist might occur, for example, if a Justice found that a complex case demanded extra consideration.

Last year, however, something changed. Early in the term, the Court had to deal with what seemed like an unusual number of vehicle problems. In some instances, the Court had to “DIG,” or dismiss cases as improvidently granted. Then, around the middle of the term, the Court started systematically “relisting” petitions before granting them. This pattern was first observed by Hashim Mooppan and reported on SCOTUSblog by John Elwood. (I blogged that the policy shift could have to do with the rise of the Supreme Court bar, and Roy Englert and Tom Goldstein responded.) Notably, the Court never issued a public statement announcing or explaining its new policy. Presumably, the Court changed its procedures in order to give itself more time to scrutinize petitions before granting them.

That brings us to today. We’re now approaching the “long conference” (slated for September 29), when the Court returns from its summer-long recess and considers all the cert petitions that have come in since the end of June. Traditionally, the long conference has generated a significant number of grants as the Court has tried to fill its calendar for the new term.

Will this year be the same? Perhaps, consistent with last term’s apparent policy change, the long conference will not actually grant any of the accumulated summer petitions, but will instead relist them for later review. With novice clerks writing pool memos and a daunting number of cases to consider, the auto-relist policy might look more helpful than ever. Alternatively, the Court may think that the reasons for its policy change don’t apply to the long conference. If the Court was worried about making snap decisions, for instance, then maybe it’s enough that the Court has so much time for review of petitions in advance of the long conference. Of course, it’s also possible that the entire policy change was just a tentative experiment. Having tried it out for a while, the Court might go back to business as usual this term.

Whether the Court adheres to its auto-relist policy has practical consequences for litigants. Advocates often like to plan out the timelines of their cases, particularly at certain times of year, such as the fall. Right now, prospective petitioners for cert are trying to gauge how early they have to file in order to maximize the odds of getting their cases heard this term. File too late, for instance, and you might have your case pushed off into the next term, which may well be to your client’s disadvantage. If the auto-relist policy continues, then advocates will have to factor it into every strategic decision of this kind.

And that leads to the broader point: the Court could be more transparent when it makes policy decisions such as the auto-relist policy. Instead of implementing the change and leaving it to specialists to notice after the fact, the Court could simply post a brief announcement, or even revise its rules. That modest reform would prevent parties from being surprised by undisclosed rules, equalize the playing field between Supreme Court specialists and other lawyers, and reduce uncertainty as to what the Court will do next.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on September 8, 2014 at 01:46 PM in Judicial Process | Permalink | Comments (0)

Monday, August 18, 2014

Judging Similarity (Part 1)

This post is by GuestPrawf Irina Manta.

I thought I would kick things off by talking a bit about the empirical intellectual property work in which I have been and continue to be engaged. Empirical work in this subject matter has been increasing in popularity in recent years after some pioneers like Barton Beebe and other scholars led the way. The relationship between social science and IP issues has fascinated me for years, so it is a much welcome trend in my eyes. Most recently, I collaborated on my own first project in that area with co-authors Shyam Balganesh and Tess Wilkinson-Ryan. The paper that resulted, Judging Similarity, will appear in the Iowa Law Review later this year, and I would like to offer a sneak peek here into some of the issues we examined.

The test for copyright infringement asks in part that fact-finders determine whether the original work and the allegedly infringing work are “substantially similar” to one another. Put differently, fact-finders—usually jurors—have to decide whether a “reasonable observer” would believe that the similarities between two works were of such a high degree as to involve wrongful appropriation. Further, fact-finders have to establish that actual copying took place, and similarity often plays a role to meet that prong as well when there is no admission of copying. While different circuits each have their own version of the copyright infringement test, they all require a showing of substantial similarity in some form or another. I expressed the concern in my earlier article “Reasonable Copyright”, 53 Boston College Law Review 1303 (2012), that the seemingly simple matter of determining similarity may create an inquiry that is particularly open to numerous cognitive biases. These biases, I argued, would distort the judicial process in a way that would likely generally benefit plaintiffs. My empirical work with Shyam and Tess allowed me to test some of these earlier intuitions I generated.

The first issue in the context of substantial similarity is that by the time the question of similarity reaches a jury, its members have already heard a great deal of evidence about the plaintiff, the defendant, the creativity involved, the process through which the work was created, the reasons for which the work was produced, the defendant’s own creative efforts and behavior, and, on occasion, the market effects of the defendant’s copying. Although the similarity finding is meant to involve no more than a comparison of the two works to assess whether they are sufficiently similar to render the copying problematic (i.e., improper), that judgment may be affected by the availability of this other evidence. The fact-finder is required to answer the question of substantial similarity through a mere comparison of the two works, which will often involve actively ignoring instinctively relevant and highly salient information. Copyright law thus seems to assume that the inquiry into substantial similarity can serve as a simple comparison of the two works, even in the face of extensive factual evidence that bears directly on the dispute in question. The fact-finder is presumed to be able to cabin and exclude from the analysis all of the evidence with which the court has been presented in the lead-up to the issue of substantial similarity.

We know from other contexts that it is very difficult to ignore salient information when performing difficult cognitive tasks. In the judicial world, for instance, many have attacked the instructions to ignore inadmissible evidence as often not only failing to alleviate the problem but in fact aggravating it by actually making the information more salient. The similarity determination may have traditionally lulled people into a false sense of confidence by creating the impression that it involves a purely perceptual task that does not contain complex moral judgments. We posited, however, that similarities would appear as more similar and dissimilarities as less obvious when the judgment was embedded in a narrative that identified an actor who intentionally engaged in copying.

As I will describe in more detail in my next post, we conducted two different studies that asked subjects to rate the level of similarity between pairs of images. We varied the instructions and extraneous information with which we provided subjects so that we could determine which factors, if any, influence what the legal system would like to see involve an entirely perceptual task. We were able to show through these studies that knowledge of copying led subjects to view two works as significantly more similar than otherwise. In addition, the belief that the original work had taken a lot of labor to create also significantly increased the similarity rating. Meanwhile, information that suggested that the junior work partially supplanted the original work in the market, i.e., that market substitution took place, did not affect the similarity rating. I will discuss our methodology and explain our results in part 2 of this post.

Posted by Howard Wasserman on August 18, 2014 at 09:20 AM in Intellectual Property, Judicial Process | Permalink | Comments (0)