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


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)

Tuesday, July 01, 2014

Inconsistency About Inconsistency at the End of Term

One of my favorite fallacies is the “tu quoque” or “you, too!” fallacy – that is, the argument that a proposition is wrong because it’s advocated by someone who previously said the opposite. An accusation of tu quoque may demonstrate inconsistency, but it doesn’t prove much else.

In that spirit, I’d like to make a tu quoque charge of my own – against Justice Ginsburg.

Earlier this year, Justice Ginsburg wrote Daimler v. Bauman for the Court over Justice Sotomayor’s dissent. During the analytical back-and-forth, Ginsburg launched a surprisingly sharp tu quoque charge: “On another day,” Ginsburg wrote, “Justice Sotomayor joined a unanimous Court in recognizing” a particular point. In Daimler, by contrast, Justice Sotomayor took a different view based on new research.

Yesterday, however, it was Justice Ginsburg who found herself on the receiving end of a tu quoque barb. And the barb was almost identical to the one that Justice Ginsburg herself had previously leveled. In the words of Justice Alito’s opinion for the Court in Burwell v. Hobby Lobby: “Although the author of the principal dissent [that is, Justice Ginsburg] joined the Court’s opinion in City of Boerne, she now claims that the statement [in that opinion] was incorrect.”

To her credit, Justice Ginsburg’s Hobby Lobby dissent not only acknowledged her own substantive inconsistency, but also (contrary to her own prior opinion in Daimler) embraced the general point that such inconsistency doesn’t really matter:

Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment: "I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday."

In short, Justice Ginsburg has been badly inconsistent on the subject of inconsistency.

Now, if you think there’s something odd about my complaining about all this, then I can only recommend that you try out two very fun but useless words:

Tu Quoque!

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

Posted by Richard M. Re on July 1, 2014 at 01:59 PM in Judicial Process | Permalink | Comments (1)

Friday, June 27, 2014

Harmon on the fragility of knowledge in the Riley (cellphone and 4A) case

Prof. Rachel Harmon from UVA had an interesting post to the crimprof listserv that I thought warranted broader exposure, so with her permission I'm sharing it. (Rachel asked to also thank UVA law librarian Kent Olson for his help with the underlying research).


In light of the likely significance of the Court's opinion in Riley v. California, I may seem obsessed with the trivial, but I can’t help but note the Court’s odd support for one of its statements about policing, and the pathetic state of information about policing it reveals. On page 6, the Court states that “warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant.”  Though the proposition seems intuitively obvious, data on searches and seizures isn’t easy to find, so I was curious about the Court’s support. 

Chief Justice Roberts cited LaFave’s Search and Seizure treatise, which struck me as an odd source for an empirical claim, so I looked it up.  LaFave does indeed say, “While the myth persists that warrantless searches are the exception, the fact is that searches incident to arrest occur with the greatest frequency.”  But that sentence has appeared unchanged since the first edition of the treatise in 1978.  And LaFave’s support for the proposition is itself pathetic.  It comes in a footnote which reads:  “See T. Taylor, Two Studies in Constitutional Interpretation 48 (1969). ‘Comparison of the total number of search warrants issued with the arrests made is equally illuminating. In 1966 the New York police obtained 3,897 warrants and made 171,288 arrests. It is reliably reported that in San Francisco in 1966 there were 29,084 serious crimes reported to the police, who during the same year obtained only 19 search warrants.’ Model Code of Pre-Arraignment Procedure 493–94 (1975).” 

Because I’m crazy, I pulled Taylor and the Model Code too.


Both sources suggest that they can’t really prove the original point.   Taylor says, “[M]ost law enforcement agencies have been exceedingly lax with their record-keeping in this field.  But there a few offices where the records are full enough to be meaningful, and from these it is abundantly apparent that searches of persons and premises incident to an arrest outnumber manifold searches covered by warrants.”   He provides no further support for the claim.

The Model Code Commentary provides the numbers from 1966, but also makes it clear they are not to be taken too seriously.  The New York data was apparently furnished directly to the Code’s Reporters from the NYPD, and the San Francisco numbers came from a New York Times’ reporter.  (It was Fred Graham, the Supreme Court correspondent at the time and a lawyer.)   According to a footnote to the Commentary, “Research efforts elsewhere foundered on the rocks of record-keeping failures.  Law enforcement agencies do not commonly maintain statistical records pertaining to search warrants or searches and seizures generally.”

So the Supreme Court cited a source, unchanged since 1978, which cites two sources from the late 1960s, both of which suggest that there is very little evidence for the proposition because police record keeping is weak.  I’m hardly one to criticize imperfect footnotes (since I’ve surely written many myself), but this one interests me.   The Court is all too willing to make unsupported claims about policing, a problem I’ve noted before.  See The Problem of Policing, 110 Mich. L. Rev. 761, 772-773 (2012).  Moreover, for the Court, as well as scholars and policymakers there is a serious problem in finding credible information about what police do.   See Why Do We (Still) Lack Data on Policing?, 96 Marq. L. Rev. 1119 (2013).  The Riley/Wurie citation nicely illustrates both problems, and it won’t be the last to do so.  


Posted by Dan Markel on June 27, 2014 at 11:13 AM in Constitutional thoughts, Criminal Law, Judicial Process | Permalink | Comments (0)

Monday, June 23, 2014

What Happened to Chevron Step One?

Today's decision in Utility Air Regulatory Group v. EPA partially sustained and partially invalidated a major greenhouse gas regulation. In doing so, the Court passed up an opportunity to clarify the famous and deceptively familiar deference inquiry established in Chevron, U.S.A. Inc. v. Natural Resources Defense Council. The question is whether Chevron (i) requires, (ii) forbids, or (iii) permits judicial decisions that uphold agency interpretations as not just reasonable, but mandatory. This issue was once thought to have been answered by Chevron Step 1, which seemed to require judicial review for mandatoriness. In UARG, however, the familiar Chevron Step 1 is mostly absent from the scene -- even though the Court expressly considered the possibility that the agency's reading was "compelled," or mandatory.

The best explanation for UARG  is that the Court views the traditional Chevron Step 1 inquiry into mandatoriness as optional. In many cases, the only relevant Chevron question is whether the agency has acted reasonably. That is particularly true when the agency reading is invalidated as unreasonable. When upholding agency interpretations, however, it sometimes makes sense for a court to go further and opine that the agency's reading is not just reasonable, but mandatory. The upshot is that what used to be called "Chevron Step 1" has effectively become an optional additional step. In this respect, Chevron resembles modern qualified immunity doctrine, which always asks whether the challenged governmental action was reasonable, but also gives courts discretion to reach the merits.

In the decision below, the D.C. Circuit ruled based on "the familiar Chevron two-step." Quoting Chevron itself, the D.C. Circuit divided the inquiry into two parts. "First . . . if the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." But "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." While the D.C. Circuit doesn't always frame the Chevron inquiry in this way, the foregoing statement probably deserves to be called the traditional view of Chevron: two steps, both concerned with statutory interpretation. Applying that approach, the D.C. Circuit appeared to rest on Step 1 by holding that the statute was "unambiguous" and that it "compelled" the agency's reading." Yet that traditional view of the "familiar Chevron two-step" has been much debated.

One increasingly popular alternative approach, set out in an important paper by Professors Stephenson and Vermeule, is that both steps are really asking the same thing and so should be reduced to a single step. Step 1 asks if the statute "clear[ly]" forecloses the agency's view, and Step 2 asks if the agency has adopted a "permissible" construction. Under either phrasing, the test is whether the agency has occupied a statutory ambiguity. Put yet another way, the sole question is whether the agency's reading is reasonable. Whether the agency's explanation was arbitrary would be a separate inquiry undertaken under the APA. Both before and after Stephenson and Vermeule's paper, Justice Scalia (UARG's author) wrote opinions that substantially supported their point of view (more on that below). And, when granting cert in UARG, the Court adopted a question presented that seemed to frame the issue as having only one step: "Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources."

Another salient view of Chevron differs from both the traditional picture and the one-step version of Stephenson/Vermeule. On this third approach, Step 1 goes to statutory interpretation, whereas Step 2 asks whether the agency's reasoning was arbitrary and capricious. Professors Bamberger and Strauss defended two-step Chevron largely on this ground. But while some cases adopt that understanding of Chevron, many other decisions, including UARG, don't mention arbitrariness review. Further, arbitrariness review is separately provided for under the APA, so (as Stephenson/Vermeule argued)  its additional inclusion within the Chevron rubric would be superfluous. Bamberger/Strauss also differed from Stephenson/Vermeule in placing greater emphasis on the fact that Step 1 allows courts to find statutory meaning to be not just reasonable but unambiguous. This point has important implications, since a lot can turn on whether an agency view is reasonable (and therefore revisable) or mandatory.

Against this background, consider UARG's first Chevron ruling -- the one against the agency. As noted, the Court framed the question presented in terms of whether the agency view was permissible, full stop. What's more, the Court's recitations of the Chevron framework, like Justice Scalia's past writings, often sounded like the one-step view. For instance, the Court said that "[t]he question for a reviewing court is whether ... the agency has acted reasonably and thus has 'stayed within the bounds of its statutory authority.'” Yet just after the Court wrote these words, it proceeded to ask whether one of the EPA's readings flowed from "the Act's unambiguous language" and whether the Act "compelled" the agency's reading. Only after answering those questions in the negative did EPA go on to ask the question it had set for itself at the outset -- namely, whether the EPA had adopted a "reasonable construction of the statute.” This two-step analysis is more succinctly put in the Court's syllabus, which notes that "[t]he Act neither compels nor permits" the agency's reading. Justice Alito's separate opinion similarly noted that "the EPA is neither required nor permitted" to adopt its interpretation.

The Court's first Chevron holding leaves something for everyone. One possibility is that UARG actually followed the traditional view of Chevron articulated by the D.C. Circuit, where Step 1 inquires into the unambiguous intent of Congress before Step 2 considers permissibility. Put another way, UARG separately asked both about mandatoriness  (Step 1) and about reasonableness (Step 2). Another possibility is that, consistent with the Stephenson/Vermeule approach, the Court really meant it when it said it was concerned only about permissibility, which, after all, is the ultimately dispositive issue in any agency deference case; it just so happened that one very important argument for permissibility would necessarily also mean that the agency's view was compelled. Finally, UARG might even be compatible with the Bamberger/Strauss view. This reading is more of a stretch, since the Court didn't mention arbitrariness review and certainly seemed to be interpreting the statute, rather than merely passing on the agency's stated rationale. Still, the Court's Chevron analysis could conceivably be viewed as an extended Step 1 inquiry into statutory meaning that obviated the need to reach arbitrariness at Step 2.

The picture changes a bit when it comes to the Court's second Chevron ruling, which went in favor of the agency. Again, the Court framed Chevron as a one-step inquiry. This time, however, the agency's reasoning didn't run afoul of the statute's unambiguous meaning. More than that, there was a plausible argument that the agency's view was unambiguously correct. As the Court put it, the statutory text at issue in the second Chevron ruling was "far less open-ended," and "the more specific phrasing of the BACT provision suggests that the necessary judgment has already been made by Congress." The Court further noted that certain arguments would apply "[e]ven if the text were not clear," thereby suggesting that the text was clear. Despite all this, the Court found only that the agency had acted permissibly, stating that its "narrow holding" was "that nothing in the statute categorically prohibits EPA from interpreting the BACT provision" as it had. The Court thus chose to find the agency's reading reasonable, without passing on whether it was also mandatory -- contrary to the traditional view of Chevron, which seems to demand that courts first determine whether the statute is unambiguous. Because of this restraint, the EPA could in the future reject the reading that the Court sustained and instead adopt, for example, the different reading offered in Justice Alito's separate writing.

UARG illustrates that debates over the structure of Chevron tend to have relatively low stakes when the agency loses, since that finding necessitates that the agency's view was neither required nor reasonable. Yet agencies sometimes win. And, when they do, it is important to know whether their readings are mandatory. For instance, the D.C. Circuit didn't have to write its opinion in terms of agency compulsion; it could simply have said that the agency's view was permissible. Should the D.C. Circuit have been: required to consider mandatoriness, forbidden from doing so, or simply allowed to do it? The Court has never squarely confronted this question, but its rulings over time suggest that mandatoriness findings are neither prohibited nor required, but optional. That is, the Court sometimes finds agency readings to be unambiguously correct. In other cases, like UARG, the Court settles for finding reasonableness, while casting mandatoriness findings as a distinct and viable possibility.

Nor have Justice Scalia's past opinions taken a definite position on this issue. In a passage that appeared at the outset of Stephenson and Vemeule's paper, Scalia wrote that "any agency interpretation contradicting what Congress has said would be unreasonable." That statement is silent as to what happens when the agency prevails. More recently, in United States v. Home Concrete & Supply LLC, Justice Scalia wrote in a concurrence that "the so-called 'Step 1' determination of ambiguity vel non" is a "customary" but "hardly mandatory" component of Chevron. In other words, the mandatoriness inquiry normally ensconced in Step 1 is a distinct but optional analytic step. In a footnote, Scalia tacked back toward the Stephenson/Vemeule view by asserting that "[w]hether a particular statute is ambiguous makes no difference if the interpretation adopted by the agency is clearly reasonable." But, again, that assertion is wrong. While mandatoriness findings don't make a difference as to whether the agency wins, they most certainly do make a difference as to the agency's ability to revise its interpretation. Since Scalia is well aware of that fact, his footnote may have meant to say that there is no legitimate reason for a court to issue mandatoriness findings, since doing so would amount to a gratuitous holding. UARG supplied a chance to put that normative view into practice.

My own view (explained in more detail here) is that Chevron originally required consideration of mandatoriness (at Step 1) before consideration of reasonableness (at Step 2), much as qualified immunity cases once required consideration of the merits in addition to reasonableness. In both contexts, structuring judicial decisionmaking according to a two-step process forced courts to clarify the law, to the benefit of regulators and litigants alike. But, also in both contexts, forcing courts to issue unnecessary rulings created problems, including by increasing the risk of error and raising legitimacy concerns. In response to those problems, qualified immunity jurisprudence has now embraced a more flexible case-specific approach to deciding whether to reach the merits. Chevron jurisprudence should explicitly adopt a similar approach: while courts should always resolve the question of reasonableness, they should also have the option to rule on the distinct mandatoriness question. In other words, Chevron (like qualified immunity) should be understood to have two steps, where the second step is optional.

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

Posted by Richard M. Re on June 23, 2014 at 11:39 PM in Judicial Process | Permalink | Comments (0)

Tuesday, June 17, 2014

Waiver and Forfeiture in the Court

The Supreme Court frequently relies on principles of waiver and forfeiture to limit the scope of its review. But waiver (the voluntarily relinquishment of an argument) and forfeiture (the failure to press an argument) are most naturally at home in traditional litigation that affects only a limited number of parties. In those cases, a court's main institutional role is to adjudicate the narrow dispute at issue, perhaps without even creating any legal precedent. Think, for instance, of adjudication in a small claims court. By contrast, waiver and forfeiture are in tension with some of the Supreme Court's most salient institutional goals -- namely, to provide correct precedential guidance as to important legal disputes affecting many parties and interests. Several recent cases illustrate how the Court has used waiver and forfeiture while navigating its dual identity as both a traditional adjudicator and a precedential rulemaker.

To find a consequential use of forfeiture, one need only review yesterday's decision in Argentina v. NML Capital, which spends a surprising amount of time explaining what it is not about. While acknowledging that the oral argument involved extensive discussion of various discovery rules, the Court declined to reach those issues. Instead, the Court focused on what it regarded as the sole issue appealed below and preserved in the petition for cert: whether the Foreign Sovereign Immunities Act barred certain discovery into Argentina's assets. After explaining that "Argentina has not put [the broader questions] in contention," the Court noted that Argentina's reply brief had tried to do just that. The Court's response was curt: "We will not revive a forfeited argument simply because the petitioner gestures toward it in its reply brief." NML Capital's use of forfeiture makes sense because it resembles forfeiture's traditional application. What made NML Capital so important was that it involved a high-stakes litigation involving a foreign nation. In that kind of case, it's entirely appropriate to hold the foreign nation to the standards of any of litigant: by resolving the expressly "narrow" question presented in "the rather unusual circumstances of this case," the Court did not fall down on its responsibility to clarify pressing legal ambiguities.

Contrast that with the Court's decision in EPA v. EME Homer City, which I blogged about here. EME Homer involved a challenge to an important EPA regulation. As a threshold argument, the EPA argued that the challengers had failed to preserve some of their concerns during the rulemaking. The decision below had squarely rejected that argument and specifically found that the challengers' objections were adequately preserved in the rulemaking process. The Supreme Court took a different approach. According to the Court, the EPA couldn't take advantage of its failure-to-preserve argument because it hadn't "unequivocally" raised that point in the DC Circuit. EME Homer's use of forfeiture is odd on its face. When the decision below has squarely ruled on the argument at issue and the parties have subsequently briefed the matter, why should the Supreme Court care whether a party "unequivocally" raised the issue in the lower court? One possibility is that the Court doubted that the challengers' objections had been adequately preserved in the rulemaking, but nonetheless wanted to issue a merits decision upholding the challenged rule. This unusual deployment of forfeiture principles would reflect the fact that EME Homer wasn't just a dispute between parties. It was also a declaratory ruling with widespread implications for environmental law.

Finally, consider the Court's recent decision in Bond v. United States, where the Court used federalism canons to narrowly construe a criminal statute. The major question lurking in Bond was whether the statute, if read more broadly, would be constitutional as an exercise of Congress's authority to implement treaties. That question was cleanly presented in part because, in the district court below, the United States had waived reliance on Congress's Commerce Clause authority; moreover, the decision below had relied on that waiver. If Bond were viewed as a traditional dispute, then the government's waiver would be conclusive. Yet, in the Supreme Court, the government insisted that its Commerce Clause authority applied and that the Court should consider the issue. The government's waiver created a problem from the standpoint of the Court's declaratory role, for it raised the possibility that the Court would strike down the implementing statute -- and so establish a major precedent -- without considering a significant argument for the law's constitutionality. What is more, some of the treaty-implementation arguments in play were linked to or dependent on Commerce Clause arguments. As Michael Ramsey put it over at Originalism Blog, "everything the Justices say about the threat to the federalism structure from treaty implementation is overwrought (to put it mildly) if Bond could have been prosecuted under Congress' interstate commerce power." In light of all this, the Court's reluctance to reach the constitutional merits may have been linked to its discomfort at enforcing the government's idiosyncratic waiver decision in a case with such broad implications.

The above examples provide at least some support for the following claim: it's hard to understand the Court's use of waiver and forfeiture without thinking about the Court's institutional role in the particular case at issue. When a case is more like a traditional dispute, waiver and forfeiture rules are most stringently enforced. And when a case is more about declaring widely applicable legal rules, waiver and forfeiture become much more complex in the Court.

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

Posted by Richard M. Re on June 17, 2014 at 09:46 PM in Judicial Process | Permalink | Comments (0)

Tuesday, June 10, 2014

Is the Supreme Court Rushing to Judgment?

One of the great things about the Supreme Court is that it adheres to self-imposed deadlines. Each "term" basically starts in early October and ends in late June, before the justices begin their summer recess. This annual rhythm guarantees that cases do not languish undecided, while giving parties and the press some sense of when a result will issue. But we all know that strict, arbitrary deadlines aren't always desirable. Sometimes, doing a good job means taking a little longer than planned. And, as work piles up and deadlines loom, mistakes are more likely to happen. If the Court is rushing to judgment this month, then the results could fundamentally shape the law.

The Court's end-of-term deadline produces a predictable flurry of activity around this time of year, when the last wave of majority and dissenting opinions is being circulated inside the Court. The cases most obviously affected are the ones heard in late April. For instance, roughly seven months passed between the oral argument in Bond v. United States and last week's published opinion in that case. By contrast, the Court has only a little over two months from argument to issue decisions in the cases heard during the April sitting. In fact, the rush is even more acute than that because, as Professor Richard Lazarus recently noted, the Court typically circulates all draft majority opinions no later than the beginning of June. This year, for example, the Court's April sitting included the complicated cell-phone search cases United States v. Wurie and Riley v. California (which I blogged about here and here). The first draft majorities in Wurie and Riley were likely written in just about a month -- and at a very busy time of year. Dissent drafts circulate even later, creating the possibility for major swings in reasoning and even in result as July approaches.

The effects of the end-of-term rush are hard to pin down. On its face, the Court's schedule creates an arbitrary difference in the way that early- and late-term cases are treated. As Lazarus suggests, the Court might be more prone to making relatively small (but still potentially significant) errors during the final weeks of the term, when attention is divided and time is short. In other cases, the Court might fail to reach a majority, or write a fuzzy opinion where -- provided more time -- a clearer test or analysis might have been possible. And, of course, it's possible that the Court might be more likely to issue fundamentally ill-considered opinions during the end of the year. Back in 1979, Professor Henry Monaghan opined that "the Court hears cases far too late in its term" and that "the pressure to 'get these out' inevitably produces well-known intellectual disasters in every term." I imagine that most readers can think of their own suspected examples of late-term decisions that could have used a little more time to bake.

Assuming that the Court does sometimes rush to judgment, what is there to do about it? In recent years, the Court has tried (with varying success) to front-load its calendar, partly in order to reduce end-of-term pressure. This year, for instance, the Court approached June having already issued a number of major cases argued in October and November. In a similar vein, the Court might shorten, move earlier in the year, or even cancel its April sitting. Even more interestingly, the Court could encourage symmetrical treatment of all cases year-round by adopting a new norm that all decisions should issue during a set period allowing adequate deliberation -- say, within 100 days of argument (assuming that the time between briefing and argument remains fixed). That approach would have the added advantage of preventing early cases from growing overlong and being over-thought. Finally, the Court could do the unthinkable: shorten its summer recess.

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

Posted by Richard M. Re on June 10, 2014 at 09:36 PM in Judicial Process | Permalink | Comments (6)

Monday, June 09, 2014

Limits on the Court's Revision Power

A few weeks ago, Professor Richard Lazarus posted a fascinating and much-discussed draft article documenting the Supreme Court's practice of revising its opinions after their initial publication. These often overlooked revisions, Lazarus shows, can extend to important points of law. Partly for that reason, Lazarus proposes various reforms to promote transparency, such as public notice of any post-publication changes.

In reading Lazarus's paper, I found myself wondering whether there are any limits on the Court's revision power. I think that there are. In particular, the Court probably has authority to modify the substance of a precedential opinion only when the relevant case is before the Court. Revisions at other times, such as long after the judgment and mandate have issued, seem like advisory opinions.

There are lots of situations where post-publication revisions don't implicate the Court's decision-making authority. These include changes to dissents and to at least most concurrences (assuming they don't have precedential force under the Marks rule). Other unobjectionable changes arise pursuant to motions for reconsideration, which allow the Court to exercise its judicial power while still resolving the case before it. Finally, changes of a non-substantive nature don't seem problematic.  For instance, Lazarus notes a revision that added the "t" to Justice Stevens's name. That kind of typographical error clearly has no effect on the opinion's basis or precedential force.

For the opposite extreme, imagine that the Court purported to revise a very old decision. Let's say, for instance, that a future Court decided to retroactively revise Brown v. Board of Education in two ways: first, to eliminate the famous and famously controversial footnote to psychological studies indicating that segregation had adverse effects on children; and, second, to add the well-known account of Brown set out in volume 1 of Bruce Ackerman's "We the People" series, which viewed Brown as derivative of the New Deal "constitutional moment." One of these changes is a subtraction, while the other is an addition. But I would be surprised if anyone viewed either of these revisions as legitimate, even if the changes were accompanied by ample public notice and opportunity to comment. The Court's decisions aren't perpetually ongoing works in progress, even though they can be modified through other decisions consistent with judicial practice.

Imposing a temporal limit on the Court's revision power can be justified in many ways. For one thing, there is an important formal objection to excessive use of the revision power. If a relevant justiciable case is necessary to create a particular precedent under Article III, then one would expect that the same standard of justiciability should also be necessary to revise that precedent. This approach ensures that the Court's published statements are always linked to concrete judgments. By contrast, late revisions are necessarily post hoc rationalizations -- much like the journal articles whose views the Court might be adopting. Even if a later-arising justification were in some sense better than the actual justification in terms of its cogency or clarity, the original justification would still be uniquely valuable as a window into the Court's actual, contemporaneous decision-making process. In a sense, preserving original judicial opinions, subject to reconsideration in later, separate precedents, is akin to preserving the original Constitution, with amendments reflected at the end of the document. Of course, there are also pragmatic issues at stake, as major or long-delayed revisions could erode the public's ability to rely on precedent.

In light of the above, I suspect that the basic dividing line between permissible and problematic revisions should be the Court's authority to act in the relevant case. In the normal course, under Rule 45 the Court is divested of its decision-making authority over a matter when the mandate issues (in state cases), or when a certified copy of the judgment is transmitted to the lower federal court. This generally applicable deadline would run on the order of weeks or, if rehearing is requested, months from the original date of an opinion's publication. By contrast, the Court currently appears to embrace a multi-year window for revision before an opinion's publication in the U.S. Reports. In addition to the transparency problems that Lazarus identifies, long-delayed efforts to revise precedent may implicate or even exceed the Court's authority.

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

Posted by Richard M. Re on June 9, 2014 at 10:23 PM in Judicial Process | Permalink | Comments (7)

Friday, June 06, 2014

Did the Martinez Sum Rev Apply or Change the Law?

Last week, the Supreme Court issued an unusual pro-criminal defendant summary reversal in the Double Jeopardy case Martinez v. Illinois. According to the Court, summary treatment was appropriate in part because the Illinois courts had failed to adhere to "what we have consistently treated as a bright-line rule." Ironically, however, Martinez's main long-term effect may be to increase uncertainty as to whether the rule in question is actually that bright after all. Martinez is an illustration of the marginal legal changes that often accompany what appear or purport to be simple applications of law.

The Court usually issues merits decisions only as to important legal issues, and only after plenary briefing and argument. But the Court sometimes issues summary reversals or "sum rev's" in order to correct blatant errors identified in cert-stage papers. Sum revs thus shepherd the law by singling out extreme outlier courts and bringing them back into the fold. But sum rev's have also been criticized, including for being skewed toward certain favored claims (like state-on-top habeas cases) and for including insufficiently thought-out statements of law, resulting from the lack of full briefing, argument, and deliberation.

Martinez involved a long-delayed criminal case in Illinois where the government repeatedly obtained postponements on account of two absent witnesses. The trial court finally decided that enough was enough and put the government to a choice: either dismiss the charges against the defendant or empanel a jury and commence trial. The government declined to request dismissal, but later stated that it would not “participate” in the case. The trial court answered: “We’ll see how that works.” The way it worked was that the government presented no witnesses, the defendant moved for judgment in his favor, and the court complied.

The government appealed, arguing that it should have gotten yet another postponement. The government then offered a pair of cute theories to overcome the Double Jeopardy Clause. Though the jury had been sworn, the government argued that the defendant was never actually in jeopardy, since the government had said it wouldn’t “participate” in the trial. The government further argued that the trial judge had issued only a dismissal, without entering a verdict for the defendant. The government’s theories prevailed in the Illinois courts.

The Supreme Court viewed Martinez as raising two related questions. First, was the defendant ever in jeopardy? Second, did the proceedings end in a way that prohibited retrial? The Court claimed that both questions were “clearly” controled by precedent. But in resolving the case, the Court may actually have made the law marginally less clear.

On the first question, the Court applied what it repeatedly called a “bright-line rule” – namely, that a “jury trial begins, and jeopardy attaches, when the jury is sworn.” The Court said it had “never suggested” anything else. But almost as soon as it was stated, this rule became a little fuzzier. In a footnote to the Court’s assertion that the bright-line rule had never been qualified, the Court proceeded to qualify it, noting that “[s]ome commentators have suggested that there may be limited exceptions to this rule – e.g., where the trial court lacks jurisdiction or where a defendant obtains an acquittal by fraud or corruption.” The Court also flagged cases “where the prosecutor had no opportunity to dismiss the charges to avoid the consequences of empaneling the jury.” “The scope of any such exceptions,” the Court noted, “is not presented here.”

On the second question, Martinez applied another supposedly settled rule – this time, that a functional finding of acquittal prohibits later trial. In the Court’s view, the trial court had made a decisive finding in the defendant’s favor. But, in another footnote, the Court went on to speculate that, “even if the trial court had chosen to dismiss the case or declare a mistrial rather than granting Martinez’s motion for a directed verdict, the Double Jeopardy Clause probably would still bar his retrial.” The Court based this “probably” correct statement on case law that had “confronted precisely this scenario" and resolved it in favor of the defendant. It is unclear why the Court would include this expressly uncertain dictum, even as it asserted that existing precedent “precisely” addressed the point at issue.

In light of its express reservations, Martinez marginally changed the law. Imagine any case “where the trial court lacks jurisdiction or where a defendant obtains an acquittal by fraud or corruption,” “where the prosecutor had no opportunity to dismiss the charges to avoid the consequences of empaneling the jury,” or where “the trial court had chosen to dismiss the case or declare a mistrial rather than granting [the defendant’s] motion for a directed verdict.” Before Martinez, the Court’s “bright-line” rules arguably dictated that the defendant ought to win under every one of those scenarios. Now, however, Martinez has made it a little easier to make a pro-government exception in each situation. These marginal changes in the law can have real consequences. For example, should a state court resolve any of the above scenarios against a defendant and the defendant later seek federal habeas relief, it may now be harder for the federal court to find a violation of clearly established Supreme Court precedent. This is the kind of indirect doctrinal effect that causes many critics to be wary of summary reversals.

Martinez is also an interesting study in precedential rules and exceptions. On the surface, Martinez held that the Illinois courts defied preexisting and unqualified rules, and that view presumably justified the Court’s decision to sum rev. But the Court’s reservations, particularly as to whether jeopardy attached, suggest that the real mistake of the Illinois courts wasn’t that they had made an exception to the Court’s rules, but rather that they had made a bad exception. In expressly reserving a range of situations where the relevant rules might not apply, the Court made clear that other, better exceptions might yet be made. But what makes one proposed exception better than any other? Martinez came closest to addressing this critical issue in its Part III, which argued (persuasively) that the Illinois courts' rule was "not necessary to avoid unfairness to prosecutors or to the public." That, too, was new analytical work that marginally changed the law.

As you can probably guess, I tend to think that Martinez shouldn’t have been resolved summarily. Part of the reason that sum rev's often seem skewed toward government interests is that summary treatment more readily makes sense in AEDPA, qualified immunity, and other cases where the Court’s express goal is simply to find legal ambiguity. But while Martinez purports to apply settled law, it actually changes the law in subtle ways while rejecting novel arguments for exceptions to governing rules. And, at over 10 pages, Martinez is comparable in length and complexity to a number of recent unanimous or near-unanimous decisions issued after full briefing and argument. Perhaps the Court should sometimes engage in “mere” error correction, including when (as in Martinez) a lower court has curtailed core rights for flimsy and troublesome reasons. But it’s probably better to avoid doing so summarily.

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

Posted by Richard M. Re on June 6, 2014 at 09:14 PM in Judicial Process | Permalink | Comments (0)

Tuesday, June 03, 2014

Bond and the Doctrine of One Last Chance

Yesterday's decision in Bond v. United States provides the latest example of perhaps the most salient methodological theme of the Roberts Court. Faced with an attractive first-principles argument that threatened immediate doctrinal and real-world disruptions, the Court punted. Instead of resolving the constitutional issue presented, the Court found a barely tenable way to avoid resolving the issue altogether, thereby creating the possibility of a more secure opportunity to rule at a later date. In a recent Green Bag essay, I called this phenomenon "the doctrine of one last chance." If Bond really does fit that description, then the Court wouldn't simply have engaged in conventional avoidance, which is constant over time. Instead, the Court would have engaged in super-strong but strictly time-limited avoidance. If the issue arose again, the Court's hesitancy would evaporate.

The doctrine of one last chance holds that the Court must stay its hand once -- but just once -- before issuing immediately disruptive decisions. This precept most obviously arose in Northwest Austin Municipal Utility District No. 1 v. Holder, where the Court adopted an extraordinarily strained statutory reading to avoid what would have been an immediately disruptive result: invalidating the Voting Rights Act's coverage formula. But the Court didn't truly avoid the constitutional merits -- instead, it packed its decision with dicta suggesting that the merits would likely be decided against the Act's constitutionality. In this way, Northwest Austin gave notice that the coverage formula was in trouble, thereby affording the political branches a window of time in which to take action. This hesitancy was nowhere to be found in Shelby County, Alabama v. Holder, which the Court chose to hear despite the absence of a circuit split. By exhibiting a high degree of restraint in the moment, Northwest Austin ironically established the groundwork for Shelby County's subsequent invalidation of a key federal statute with bipartisan support in Congress.

Bond looks a lot like Northwest Austin. In Bond, the constitutional issue concerned federal legislation implementing the Chemical Weapons Convention. Ruling on that issue could have taken the United States out of compliance with a major international agreement -- and at a time when U.S. foreign policy substantially involves curbing the use of chemical weapons in places like Syria. Moreover, a disruptive holding in Bond would have been in the headwind of the most on-point precedent, Missouri v. Holland. These are the kinds of immediate practical and doctrinal disruptions that trigger the doctrine of one last chance. So, true to form, the Court (per the Chief) found a tenuous statutory interpretation while casting doubt on the apparently broad scope of relevant precedent -- much as happened in Northwest Austin. In particular, Bond included suggestive language indicating that Holland might be subject to narrowing. For instance, Bond ends by saying that the government's view of the case posed a "dramatic departure" from the original "constitutional structure." Having given this warning, the Court might not be so determined to engage in avoidance the next time.

Of course, there's no guarantee that the Court will actually follow through on Bond's tacit threat. A key virtue of the doctrine of one last chance, after all, is that it can eliminate the need ever to issue a disruptive holding. For instance, the political branches might act to avoid future confrontation with the Court, such as by more carefully drafting implementing legislation. Or the United States might exercise prosecutorial discretion so as to avoid creating other vehicles for Supreme Court review. Alternatively, the extra time that the Court has bought by punting in Bond might generate new information that could persuade the Court to change its views on the merits in the next case. That seems like a live possibility, since Bond didn't tip its hand in quite the dramatic way that Northwest Austin did -- perhaps because three of the justices skeptical of Holland didn't join the majority opinion and were somewhat at odds with one another as to the nature of the constitutional problem. Still and all, Bond has meaningfully changed expectations as to the scope of congressional power. The Court has inaugurated a period of heightened doctrinal uncertainty as to Congress's authority to implement treaties. Potentially affected parties will adjust their behavior as they see fit, in anticipation of a possible next case.

It's more difficult to say whether this distinctive brand of constitutional avoidance is justifiable. In terms of enhancing judicial predictability and minimizing transition costs, the doctrine of one last chance looks pretty good. But in lowering the costs of legal change, the doctrine likely increases the frequency of both threatened and actual disruptions. The doctrine also calls into question the Court's supposedly reactive judicial role, by converting a core principle of judicial restraint into a means of judicial empowerment.

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

Posted by Richard M. Re on June 3, 2014 at 01:05 PM in Judicial Process | Permalink | Comments (2)

Monday, June 02, 2014

Prosecutorial Discretion in Bond

Who would have thought that Bond v. United States -- today's much-awaited decision involving the Chemical Weapons Convention -- would have so much to do with prosecutorial discretion? Yet prosecutorial discretion appeared repeatedly in the Court's consideration of the case, serving different purposes each time.

First, the fact of prosecutorial discretion is the critical factor explaining why Bond even arose. By way of background, the defendant Bond used certain harmful chemicals to retaliate against a romantic rival. Bond was then prosecuted for violating federal legislation implementing the Chemical Weapons Convention. In Bond, the Court relied on federalism canons to conclude that the implementing legislation didn't reach Bond's conduct. A major theme of the majority opinion is that Bond is an "unusual" and "curious case" that is "worlds apart" from what anyone would have associated with the Chemical Weapons Convention or its implementing legislation. Another major theme is that the "common law assault" at issue in Bond would normally be handled by state and local government. But if that's so, then why was the defendant federally prosecuted? The answer is that the federal prosecutors involved in the case concluded -- contrary to the intuitive view -- that the Convention's implementing legislation properly applied.

Second, prudent use of prosecutorial discretion was a source of comfort to the majority, since it meant that the Court's statutory holding wouldn't have harmful effects. "[W]ith the exception of this unusual case," Bond noted, "the Federal Government itself has not looked to section 229 to reach purely local crimes." Instead, federal authorities had previously used the relevant statutory authority primarily to prosecute things akin to "assassination, terrorism, and acts with the potential to cause mass suffering," and the Court declined to "disrupt the Government’s authority to prosecute such offenses." In a related discussion, the Court relied on the constitutional value of state prosecutorial discretion to deflect an argument raised by the federal government. In justifying its decision to prosecute in Bond, the United States argued that state and local prosecutors had fallen down on the job in that they had "charged Bond with only a minor offense based on her 'harassing telephone calls and letters' and declined to prosecute her for assault." The Court's response was curt: "we have traditionally viewed the exercise of state officials’ prosecutorial discretion as a valuable feature of our constitutional system."

Finally, the federal government's failure to exercise wise prosecutorial discretion in Bond was, to a great extent, the problem that the Court perceived and chose to solve. That is surprising. Bond was widely expected to be a grand verdict on Missouri v. Holland and the scope of the constitutional treaty power. To the Court, however, that abstract debate seemed far removed from the facts of the case. The real problem was that federal prosecutors had overreached. As Justice Kennedy told the Solicitor General during oral argument: "It ... seems unimaginable that you would bring this prosecution." But bring it they did. The solution was to prevent such overreaching in the future. As the Court put it: "Here, in its zeal to prosecute Bond, the Federal Government has 'displaced' the 'public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign,' that Bond does not belong in prison for a chemical weapons offense." Under the Court's narrowed reading of the statute, that problem will no longer arise.

Bond's discussion of prosecutorial discretion calls to mind other instances where the Court has policed federal attorneys.  In United States v. Stevens, for instance, the Court (per the Chief, as in Bond) noted that the United States had repeatedly invoked "its prosecutorial discretion" as a potential cure for First Amendment problems.  The Court retorted: "But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige." A related sentiment is at work in Bond.

Looking ahead, the decision in Bond is likely a harbinger for the recently granted case Yates v. United States, where a defendant was convicted of violating Sarbanes-Oxley's "anti-shredding" prohibition by throwing illegally caught fish off his boat. Critics have viewed Yates as an instance of federal prosecutorial overreach accomplished by reading statutory definitions in an unnaturally broad way. Surprisingly, the statutory issue in Yates will be informed by the Court's most recent brush with the treaty power.

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

Posted by Richard M. Re on June 2, 2014 at 04:20 PM in Criminal Law, Judicial Process | Permalink | Comments (3)

Monday, May 26, 2014

The Finally Fallible Court

Is this the year when the Supreme Court finally becomes fallible?

Consider these recent events, all within the last month or so:          

  • Justice Scalia writes, and later corrects, a dissent that trumpets a misreading of his own prior opinion.
  • Justice Kagan writes, and later corrects, a dissent with a mistaken assertion regarding Jewish-American history.
  • The Court calls for a response in a case asking, in effect, whether a prior decision accidentally denied a prisoner habeas relief.
  • After dismissing a number of cases as mistaken grants, the Court apparently establishes a double-check policy before granting cert.
  • Professor Lazarus posts a much-discussed article showing that the Court has long been sub silentio revising its opinions without notice.

Meanwhile, the Court is hurtling toward another epic End of Term.  With just over a month go to, major decisions are expected on recess appointments, the treaty power, cell phone searches, capital punishment, corporate religious exemptions, and the future of the TV industry—among many others.

The proofreading at 1 First St. must be getting intense.

Now, I am pretty sure that the justices have always been human, yet something new seems to be happening.  I think it’s this: in small but meaningful ways, the Court is being forced to acknowledge its own fallibility.

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


Posted by Richard M. Re on May 26, 2014 at 09:30 PM in Judicial Process | Permalink | Comments (9)

Thursday, May 22, 2014

Standing, the Merits, and Judge Fletcher's "Softened" Views

On Monday, I blogged about standing in Town of Greece v. Galloway, and Howard’s subsequent comments on that subject have reminded me of an interesting recent development in standing scholarship that I’d like to draw attention to here.   In short, Judge Fletcher—a renowned critic of modern standing doctrine—recently wrote that his “views have softened somewhat.”

To recap, Howard initially suggested that standing might be found in Town of Greece and other Establishment Clause cases based on a plaintiff’s feeling of religious offense or exclusion, even in the absence of coercion. But in fleshing out that instinct, Howard found it tricky to avoid collapsing the distinction between standing and the merits—a move that current standing doctrine frowns on. To state Howard’s point using the categories of my earlier post, when trying to make answer #5 work, it’s tempting to slide into answers #4 or #6.

In particular, it’s tempting to slide into the theory famously put forward by then-Professor and now-Judge William A. Fletcher. To grossly simplify his beyond-classic article, Fletcher argued that the scope of standing should turn on the merits, that is, on the meaning of the substantive law at issue. From that vantage, an inquiry into “injury in fact” seemed pointless—or worse. In a well-known passage, Fletcher compared the injury-in-fact requirement with “substantive due process.” Here’s an excerpt:

To use a phrase that is particular anathema to those members of the Court most anxious to tell us that there are Article III limitations on statutory grants of standing, one may even say that the ‘injury in fact’ test is a form of substantive due process.

This was a drop-the-mic moment—a powerful and compelling charge of intellectual hypocrisy.

One difficulty with that line of attack, however, is that a lot of people like substantive due process, and many of them are otherwise sympathetic to Fletcher’s critique of standing doctrine. As so often happens, inconsistency could be viewed as a two-edged sword.

With that background, consider Fletcher’s recent contribution to a terrific Alabama Law Review symposium in honor of Fletcher’s work on standing. I’ll only reproduce portions of Fletcher's keynote remarks here, but I recommend reading them all:

I have rethought a few things, helped in part by the papers contributed to this Symposium. In my article, I criticized the Supreme Court for not admitting what it was doing. The Court wrote that its purpose in limiting standing under Article III was to exercise judicial restraint and thereby preserve our democracy. In Justice Scalia's words, the Court was preventing the “overjudicialization” of our government. But each time the Court holds that a grant of standing to enforce a statutory duty is unconstitutional under Article III, the Court is doing precisely what it says it is not doing. It is not deferring to the exercise of power by our democratically elected legislative body. Quite the contrary. It is restraining Congress’s power and increasing its own.

While I have not exactly changed my mind, I have to say that my views have softened somewhat. I no longer insist so vigorously that the Court explain what it is doing and why, and I no longer object so strenuously to the Court's substituting its view for Congress’s.

[Fletcher then discussed leading standing cases involving the Establishment Clause, the Equal Protection Clause, and environmental law.]

... I regard all three lines of cases as examples of the Supreme Court’s use of its lawmaking power. ...

The Supreme Court has not, and will not, explain its Establishment Clause, equal protection, and environmental standing decisions in the way that I have just explained them. It has not, and will not, state openly the degree to which it is making law. This is not a new phenomenon. Common law courts have always been reluctant to say openly the degree to which they are changing the law. They much prefer to emphasize the degree to which their decisions are consistent with, even compelled by, decisions reached in earlier cases. I do not regard the Court’s unwillingness, perhaps inability, to explain what it is doing as illegitimate or improper. The Justices are acting in the way they and their predecessors have always acted, making law even as they seek to disguise the degree to which they are doing it.

Given that Fletcher has been an intellectual leader both in the academy and, now, on the bench, his “softened” views seem noteworthy—particularly since they’re coupled with a candid description of how “[c]ommon law courts have always been reluctant to say openly the degree to which they are changing the law.”  Indeed, Fletcher's softer attitude toward standing doctrine seems linked to a similar change in attitude toward the exercise of what he calls the Supreme Court's "lawmaking power."  As he puts it, "I no longer object so strenuously to the Court's substituting its view for Congress’s."

To my mind, Fletcher’s “rethought” view of standing addresses a significant set of questions raised by his original piece. And it adds an interesting perspective on the standing issue in Town of Greece and many other cases.

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

Posted by Richard M. Re on May 22, 2014 at 09:54 AM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (0)

Wednesday, May 21, 2014

Comments On "Is the Cert Process Fully Adversarial?"

On Monday, I wondered whether the Supreme Court's apparent decision to auto-relist cert petitions before granting them might, counterintuitively, have something to do with the rise of the Supreme Court bar.  The post prompted some noteworthy comments from members of the Supreme Court bar, and I'd like to draw attention to those comments here.

First, a recap.  My original post acknowledged that the rise of the Supreme Court bar has increased awareness of the need to flag so-called "vehicle problems," that is, reasons why a particular case might prevent or complicate the Court's resolution of the question presented.  But, I suggested, the rise of a prestigious, exclusive Supreme Court bar might also undermine adversity at the cert stage.  Sophisticated counsel sometimes advise acquiescence in cert as part of a litigation strategy; in those cases, both parties actually agree on the desirability of Supreme Court review.  In addition, the counsel that prevailed below might have a personal interest in arguing before the Court.  In theory, this concern could apply to leading Supreme Court advocates maintaining their practice, to novices trying to have their first big day in the big Court, and to dedicated clinics that exist to do Supreme Court litigation.  These personal interests could even have unconscious effects.  So, much as class action counsel might be subjected to a little extra judicial scrutiny in light of their personal interest in settlement, lawyering at the cert stage might benefit from a judicial double-check.  Hence, I speculated, the new auto-relist policy.

My post prompted this comment from Tom Goldstein:

For what it’s worth, I think that the development of the Bar probably points in both directions, but not for reasons related to the lawyers’ mixed incentives. More petitions are being done by experienced practitioners who are skilled at hiding problems with cases. On the other hand, more briefs in opposition are being done by the same kind of lawyers who are skilled at finding problems and raising doubts about whether to grant cert. Also, the contrary premise of the post is that the Court is DIGging materially more cases. Anecdotally, I don’t think that’s true. In terms of its reasoning, I’m not aware of a case where someone has said it looked like the opposition wasn’t full throated. But I can say from my experience that a lawyer representing the respondent is frequently more enthusiastic about cert. being granted and getting his/her first opportunity to argue than an attorney for whom it would be one of many. I don’t think it affects how they brief the case in either event, though.

And my post, plus Tom's comment, prompted this additional set of remarks from Roy Englert:

I largely agree with Tom, but would go further. I do not think the best cert. petitions hide vehicle problems. Rather, I think the very best cert. petitions anticipate, acknowledge, and offer answers to any major vehicle problems. And I do not think the leading members of the Supreme Court bar try — consciously or unconsciously — to do anything other than maximize the chance of a cert. denial when they file briefs in opposition, save in cases like Aereo where the client actually wants Supreme Court review. As a result, I do not think the rise of the Supreme Court bar cuts in both directions. I think it cuts heavily in the opposite direction from Richard’s hypothesis.

I will acknowledge one exception, but it has nothing to do with counsel’s motivation. I do think that the Court itself seeks cases in which the presentation on both sides will be strong. Therefore, when the brief in opposition is really good — regardless of authorship — but the issue is certworthy, the Court (somewhat perversely) may take the case with the good BIO rather than a different case presenting the same issue with a weak BIO.

I'm grateful to these commentators for sharing their very interesting and thoughtful views.

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


Posted by Richard M. Re on May 21, 2014 at 11:13 AM in Judicial Process | Permalink | Comments (5)

Tuesday, May 20, 2014

Supreme Exclamations

It's time to talk about what really matters:  the underrated use of exclamation marks in Supreme Court opinions.  Let's call them "Supreme exclamations."

 The propriety of exclamatory opinions recently came up in the blogosphere when Judge Leon (of the DC district court) dared to exclaim in Klayman v. Obama, which involves an important constitutional challenge to an NSA surveillance program.  In fact, Leon exclaimed more than once.  Consider:  "Candor of this type defies common sense and does not exactly inspire confidence!"  And:  "[T]here is the very real prospect that the program will go on for as long as America is combating terrorism, which realistically could be forever!"  Over at the Volokh Conspiracy, Stewart Baker suggested that Leon's exclamations undermined the persuasiveness of his opinion.  That criticism struck me as plausible.  Legal writing shouldn't be boring, but it also shouldn't be overwrought.

But then I found myself reading Marbury v. Madison and, lo and behold, Chief Justice Marshall wasn't above dropping a few exclamation marks in his day.  As Marshall put it in Marbury: "How immoral to impose [the constitutional oath] on [judges], if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!"

Clearly, originalists should be using lots of exclamation marks.

This got me thinking: when have members of the current Court seen fit to exclaim?  Here are a few examples:

  • Justice Scalia in his Brown v. Entertainment Merchants majority: "And Hansel and Gretel (children!) kill their captor by baking her in an oven."
  • Justice Alito in his recent Town of Greece v. Galloway concurrence:  "At Greece Town Board meetings, the principal dissent pointedly notes, ordinary citizens (and even children!) are often present."
  • Justice Kagan in her Arizona Christian School Tuition Organization v. Winn dissent: "We have faced the identical situation five times—including in a prior incarnation of this very case!—and we have five times resolved the suit without questioning the plaintiffs' standing."

What's your favorite/least favorite Supreme exclamation?

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

Posted by Richard M. Re on May 20, 2014 at 10:15 PM in Judicial Process | Permalink | Comments (4)

Thursday, April 24, 2014

Lamberth in Cobell Part 4: Pulling the Judge

Now for the long-promised installment of this series on the Indian Trust case discussing the D.C. Circuit’s decision, upon the government’s urging in the wake of Judge Lamberth's unique July 12, 2005 opinion, to reassign the case.  Cobell was reassigned to Judge James Robertson (now retired) who scheduled a trial on the remedy less than a year after taking over the case.

First, let’s review the grounds for reassignment.  The government argued that the string of reversals of Judge Lamberth's orders (discussed previously here) established a "pattern" of Judge Lamberth's "failure to follow [the D.C. Circuit’s] guidance.”   The government also argued that the July 12, 2005 opinion was, “in its extended vitriol . . . unlike any other judicial opinion that we have ever seen,” that the tone and content of the opinion were such that Judge Lamberth had compromised the appearance of his own neutrality, and that the opinion thereby undermined the “appearance of justice” (the government's formulation of one of the circuit-law bases for reassigning a case).

The reversals -- several though they were -- were insufficient by themselves to justify reassignment; according to the court of appeals: “a legal ruling may not itself serve as the basis for a motion to disqualify.”   The court also made clear that Judge Lamberth's generally harsh condemnations of the Interior Department throughout the opinion were insufficient, alone, to justify reassignment:  "Although the July 12 opinion contains harsh--even incendiary--language, much of that language represents nothing more than the views of an experienced judge who, having presided over this exceptionally contentious case for almost a decade, has become 'exceedingly ill disposed towards [a] defendant' that has flagrantly and repeatedly breached its fiduciary obligations. We ourselves have referred to Interior's 'malfeasance,' 'recalcitrance,' 'unconscionable delay,' 'intransigen[ce],' and 'hopelessly inept management.'"  The circuit panel thus rejected the government's argument that the district court’s "extraordinary pronouncements" of mismanagement, negligence, and so forth “have no legal or factual basis.”  Indeed, it explained that "Interior's deplorable record deserves condemnation in the strongest terms. Words like 'ignominious' and 'incompeten[t]' (the district court's) and 'malfeasance' and 'recalcitrance' (ours) are fair and well-supported by the record."

I discuss the apparently decisive factor after the jump.

What seems to have been critical was the court of appeals’ conclusion that "although no one, not even the government, doubts that racism ran rampant at Interior a century ago," the July 12, 2005 opinion “extends beyond historical racism and all but accuses current Interior officials of racism."  This, combined with the string of reversals and other passages from this and other of Judge Lamberth's opinions, the court concluded, "could contribute to a reasonable observer's belief that Interior stands no chance of prevailing whatever the merits of its position."  This is the passage on which the court of appeals' conclusion about the accusation of racism primarily relies: 

[T]he original General Allotment Act that created the trust was passed in 1887, at a time when the government was engaged in an 'effort to eradicate Indian culture' that was fueled, in part, by 'a greed for the land holdings of the tribes[.]'  But regardless of the motivations of the originators of the trust, one would expect, or at least hope, that the modern Interior department and its modern administrators would manage it in a way that reflects our modern understandings of how the government should treat people.  Alas, our 'modern' Interior department has time and again demonstrated that it is a dinosaur--the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the last pathetic outpost of the indifference and anglocentrism we thought we had left behind."  (emphasis mine).

This language is not soft, deferential, or forgiving.  But it is ambiguous.  The most that seems clear in this passage is the claim that the current Interior department is "morally and culturally oblivious" and an "outpost of . . . indifference and anglocentrism."  This part of the opinion seems, if anything, carefully worded to avoid a direct racism charge.  Perhaps that’s why the D.C. Circuit carefully minces its words (“all but accuses”--which, by the way, reminds me of saying that something is "tantamount to genocide."  To quote The West Wing: "Tantamount, yes. Overwhelmingly.").  
The court of appeals' diagnosis is made more problematic by the conclusion of Judge Lamberth's opinion, in which he spins out a variety of (admittedly uniformly damning) hypotheses to explain Interior’s mismanagement of the Indian trust.  He speculates that Interior might be populated with "evil people," "apathetic people," or "cowardly people," that "Interior as an institution is so badly broken" that it incapable of properly implementing even well-intentioned policies, that "some structural flaw" makes the federal government generally unfit as a trustee, or that the Indians may have been "doomed the moment the moment the first European set foot on American soil."  None of these directly suggests racism.  More importantly, Judge Lamberth makes explicit his uncertainty as to the cause and, indeed, explains in a footnote that the broken-institution account has the most support in the record.  I'm also not 100% sure how "all but" accusing Interior and its officials of racism is qualitatively different, with respect to creating an appearance of partiality, from calling them "recalcitrant," "intransigent," or "hopelessly inept."  Perhaps the supposed racism accusation was particularly troubling because, according to the court of appeals, "drawing inferences of racism might well have been appropriate were Interior's motives relevant, as they would be in a discrimination case . . . ."  But then what to intransigence and inteptitude go to, if not state of mind?  In any event, the D.C. Circuit’s history in Cobell made the outcome fairly easy to predict.

Now, the real question:  Can this episode have done any good?  As a purely hypothetical exercise,* assume that you are “an experienced judge who, having presided over [an] exceptionally contentious case for almost a decade, has become 'exceedingly ill disposed towards [a] defendant' that has flagrantly and repeatedly breached its fiduciary obligations.”  Imagine that, after years of experience and mountains of evidence, you conclude that only Congress can actually fix the Indian trust and resolve the litigation.  And, finally, assume that Congress, so far, has taken only superficial, politically convenient but ultimately ineffectual actions.  Under these circumstances, might you not come to believe that all you could do to advance the case toward an actual resolution is raise its profile to increase public pressure on Congress?  The very public removal of a judge for a very public thrashing of a federal agency in very strong language might accomplish that -- aside from a Supreme Court decision, I know of little else originating in the federal courts that could.  We all make calculations.  What would you do under these conditions?

The next thing to consider is whether this incident played any significant causal role in the comparatively speedy resolution of the case following reassignment.  I'll suggest in the next post that the reassignment may have been just the shake-up needed to get Cobell unstuck and moving into the endgame.

*I am emphatically not suggesting, directly or indirectly, that Judge Lamberth issued his July 12, 2005 opinion in Cobell for any reason other than believing that the factual assertions were supported by the record and that the legal conclusions were warranted by the relevant law.  I offer this simply as a thought experiment -- we sometimes ascribe this kind of strategic thinking to judges and justices to explain unusual decisions (e.g., Chief Justice Roberts joining the Tax Clause opinion in Sebelius).  Would we assess this move differently if it had been made for strategic reasons?  Should judges in some cases play a long game?


Posted by Garrick Pursley on April 24, 2014 at 04:30 PM in Judicial Process | Permalink | Comments (2)

Saturday, April 19, 2014

Lamberth in Cobell Part 3: The Sideshow and Its Message

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, April 12, 2014

Lamberth in Cobell Part 2: Contextualizing Litigation Tactics

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, April 08, 2014

A Remarkable Opinion in a Landmark Case

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

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

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

Judge Lamberth begins on a grim note:

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

And, near the end, he speculates about causes:

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

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

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

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

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

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

Thursday, February 13, 2014

Judgment Calls and Reputation, Part Two: Trial Judges

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

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

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

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

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

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

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

Tuesday, February 04, 2014

Judgment Calls and Reputation, Part One: Figure Skating

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

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

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

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

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

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

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

Tuesday, July 09, 2013

The Poor are Still Losing: Gideon's Empty Promise

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

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

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

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

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

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

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

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

Your thoughts?  Please share in the comments.   


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

Wednesday, June 26, 2013

Federalism and DOMA

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

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

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

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

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

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

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

Monday, June 24, 2013

So Where WAS Fisher Anyway?

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

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

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

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

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

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

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

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

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

Saturday, June 22, 2013

Dismissing the DOMA Case

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

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

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

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

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

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

Winkler mentions this:

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

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

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

Wednesday, June 19, 2013

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

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

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

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

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

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

Screen Shot 2013-06-19 at 11.02.22 AM

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

Monday, June 17, 2013

Today's Decisions

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


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


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

Inter Tribal Council of Arizona:

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


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


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

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

Tuesday, June 11, 2013

Obeying Judges

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

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

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

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

Friday, June 07, 2013

Where's Fisher?

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

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

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

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

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

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

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


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

Monday, March 11, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, February 28, 2013

Still more on judicial language

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

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

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

Wednesday, October 24, 2012

The Wrong Way to PSA

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

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

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

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

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

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

Thursday, October 18, 2012

The Presidential Election and the Lower Federal Courts

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

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

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

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

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

Thursday, October 11, 2012

Judicial Legitimacy When the Stakes Are Personal

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

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

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

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

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

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

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

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

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

Friday, May 04, 2012

Comparable measures of ideology

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

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

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

Friday, February 10, 2012

Bargaining Your Way Out of War Crimes

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

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

Friday, November 04, 2011

Shopping for Settlement

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

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

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

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

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

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

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

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

Wednesday, October 26, 2011

Public Judges and Private Judging

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

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

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

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

Friday, October 14, 2011

Behind the Scenes of Six Strikes

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

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

Tuesday, September 06, 2011

Prop 8 at the California Supreme Court

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

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

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

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

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

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

As the Supreme Court stated in Arizonans:

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

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

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

Sunday, June 26, 2011

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

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

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

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

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

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

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

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

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

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

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


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

Tuesday, June 07, 2011

Is deliberation overrated?

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

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

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

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

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

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