Thursday, August 11, 2016
IP, The Constitution, and the Courts - IPSC 2016
IPSC 2016 - Breakout Session III - IP, The Constitution, and the Courts
Lexmark and the Holding Dicta Distinction – Andrew Michaels
Established Rights, the Takings Clause, and Patent Law – Jason Rantanen
A Free Speech Right to Trademark Protection? – Lisa Ramsey
Lexmark and the Holding Dicta Distinction – Andrew Michaels
How do we distinguish dicta from holding? This project uses the Federal Circuit's dispute in Lexmark (on remand) over the breadth of the holding in Quanta. As Paul Gugliuzza summarized it for me (I was a late arriver), Michael's argument is that, rather than treating holding/dicta as a binary distinction, we should envision a spectrum of the types of things that courts say in their opinions.
A spectrum approach to holding v. dicta might helpfully restrict courts. If a holding says "No red convertibles in the park", we might worry about a case where a subsequent court says the opinion requires a holding of no vehicles in the park. They are not unrelated, but perhaps still dicta. Broader statements should have less capacity to bind than narrower holdings.
Jason Rantanen: This is interesting. We often see doctrinal pronouncement in Federal Circuit's case, much broader than necessary to decide the case. We also see language from earlier court opinions that are clearly dicta. Panels in the Federal Circuit nevertheless use it later. I wonder, however, whether we should take into account how the court is using the language. For example, do we bind the court to holding language only, or might they be appealing to the persuasiveness of early reasoning. Your spectrum focuses on text as it appears in the early opinion, but is that too narrow? Can dicta apply?
Andrew - Sometimes dicta is well considered. But if the court pretends it's a holding, and acts as if it is bound, then they are failing to adjudicate the dispute, and that's a problem.
Paul Gugliuzza - I think the Federal Circuit may engage in some over-use of dicta. Is there a prescriptive payoff to this spectrum? How does the court determine whether to follow the statement or not?
Andrew - The payoff is to require courts to deal more directly with the question of dicta.
Pam Samuelson - I think it's interesting when dicta becomes a holding, over time, and solves a problem. For example, the 3rd Circuit (Whelan) case had a lot of broad dicta that led to a lot of litigation. But the 2d Circuit also included a lot of dicta in Computer Assocs. v. Altai, and the dicta from the that case seems to have knocked out Whelan, and been followed, correctly from Pam's view, in many other circuits.
A subsequent observation from Paul: I think the spectrum provides an interesting descriptive contribution, but I wonder whether, instead of arguing whether a statement is holding or dicta, we'd just end up arguing about (1) where on the spectrum a particular statement falls and (2) whether, given its location on the spectrum, it's binding law or not.
A Problem of Subject Matter: Patent Demand Letters and the Federal Circuit’s Jurisdiction – Charles Duan & Kerry Sheehan
States are passing laws designed to cabin patent demand letters. We might presume that the Federal Circuit has primacy, but this paper argues the question isn't so cut and dried. The Supreme Court, in a case about attorney malpractice, held that there should be a balance struck between the interests of the federal courts and the state's consumer protection laws.
In a demand letter case, we could ask whether 1) this raises a sufficient issue of federal patent law, and 2) is the law unconstitutional or improper. To understand the second question, look to the Federal Circuit's Globetrotter case. The patent holder threatened to send letters to the defendant's clients. The defendants sued for tortious interference, and Fed. Cir. held that the Patent Act preempted acts that prevent sending demand letters.
We argue there is an odd disconnect in the Federal Circuit's analysis. It's a mistake that makes the Federal Circuit's jurisdiction appear larger than it is.
What is the right policy outcome? Should the Federal Circuit have primacy here? The uniformity issues that inspired the creation of the Federal Circuit doesn't necessarily reach every case that touches on patent law, and perhaps these demand letter cases are outside the needs of the uniformity requirement.
Jake Linford: I'm unclear on where the line is between the stuff the Federal Circuit controls and the stuff it doesn't. It sounds circular to me. Help me understand.
Charles: The Supreme Court doesn't take the view that the Federal Circuit is the final arbiter of all patent issues. The Christensen and Gund cases are examples where the Supreme Court put the responsibility with the Seventh Circuit and Texas courts respectively. Questions of validity of the patent may go to the Federal Circuit, but not claims about a clearly invalid patent.
Lisa Ramsey: One of the reasons this is so important is because people will get different results before a state court than the Federal Circuit. Is that right?
Charles: It's unclear. If we sort some cases for the Federal Circuit and others for the states, we might get divergent outcomes.
Pam Samuelson: How does the issue of validity of the patent get to the Federal Circuit if the case starts in state courts?
Charles: Removal is the mechanism.
Pam: If so, then how do we take the ability of the Federal Circuit away? If the Federal Circuit decides whether it has jurisdiction...
Charles: Perhaps the Supreme Court takes cert?
Paul Gugliuzza: What triggers the arising under jurisdiction of the patent clause? Isn't this a matter of patent jurisdiction?
Charles: I'm not sure this meets the Constitutional language...
Paul: The Federal Circuit may rely on Globetrotter, even if I disagree with them.
Paul Gugliuzza sent me the following summary of the Duan - Sheehan paper, which I find much better than my own:
Established Rights, the Takings Clause, and Patent Law – Jason Rantanen
Recent arguments have suggested that when patent laws change, the takings clause may be implicated. I wanted to understand the analytical reasoning behind the takings claim. Takings case law is a deep, Alice-in-Wonderland rabbit hole. How does it actually apply to patent law?
1) Jason agrees that patents are property subject to takings clause. (The Federal Circuit said no, in Zoltec, when the government infringes the patent. The Supreme Court, instead, suggested in dicta in the raisin takings case, that patents are the type of property subject to the takings clause)
2) But it's inappropriate to cut and paste takings case law to patent cases. Patents aren't like rights in real property. We know what a takings of a coal mind looks like. Patents aren't the same. In addition, one key right "taken" is the right to use, and the patent holder doesn't lose the right to use, only the right to exclude or alienate. So application of standard takings cases is difficult.
3) The question is instead whether the new law changes or destroys an "established property right" in the patent. That's the taking, if there is one. What's an established property right? The type associated with property, established with a high degree of legal certainty. See, for example, the Penn Central case, where the Supreme Court is looking for certain rights. If we are looking for high degree of legal certainty, many aspects of patent law has changed significantly and frequently over time. Patent has replaced the entire statutory framework at least four times, with only very minor exceptions. For example, when Congress passed the 1836 Patent Act, it replaced the prior act, and also applied the new act to pending litigation. There are many similarities, but this is a new draft. Same with the 1952 Act: "It shall apply to unexpired patents." Damages changed dramatically, as summarized in Halo v. Pulse. Patent owners used to get treble damages automatically, and they don't anymore. Patent holders in 1836 lost that right while claims were pending.
Lisa Ramsey: One argument against cancellation in the Redskins case is takings.
Jason Rantanen: The Redskins case considers whether the right was valid in the first place, which falls outside of standard takings analysis.
Camilla Hrdy: You may want to consider why the Supreme Court has held a trade secret can be taken. If so, why not a patent?
A Free Speech Right to Trademark Protection? – Lisa Ramsey
The Federal Circuit recently held that the 2(a) bar against registering disparaging trademarks is unconstitutional. Lisa's paper aims to make two unique contributions to literature on disparaging trademarks and the First Amendment:
- Is there a right under international treaties to be able to register a disparaging or scandalous trademark? The answer is no.
- A framework of six elements that should be applied in deciding whether laws against offensive trademarks run afoul of free speech rights.
The U.S. is not the only country that bans registration of scandalous marks. Canada even bans use.
We are members of the Paris Convention, which gives signees the discretion to decide whether to deny a registration on the grounds that a mark is contrary to morality or public order.
Lisa's framework (and 2(a) seems to meet most of these conditions):
- Is there government action? Who regulates the expression?
- Suppression, punishment, or harm: How does the regulation harm expression? Are there unconstitutional conditions imposed on speakers by denying the benefit? Lisa says no, because the benefit being denied is the right to restrict the speech of others.
- Expression. What is being regulated?
- Is this individual or government speech? Whose expression is regulated?
- No categorical exclusion for the expression: Is the regulation justified because of a categorical exclusion, like obscenity or misleading commercial expression?
- Does the regulation fail constitutional scrutiny? Is it content-neutral or content-based? That triggers different levels of scrutiny in the U.S.
What could the Court do if it wants to uphold 2(a)? 1) Say it's not suppression or punishment, and the unconditional conditions doctrine does not apply, under factor 2. 2) It satisfies the scrutiny under 6. 3) Make a "traditional contours" argument like in Eldred and Golan.
Saurabh Vishnubhakat: Pushing on Lisa's state action analysis, if we apply Shelly v. Kramer broadly (where the Supreme Court refused to allow the enforcement of racially restrictive covenants in court, and which may be limited to its fact), that may suggest everything is potentially a state action?
Rebecca Tushnet: If the Court is taking a "hands off" approach to conflicts between trademarks and the First Amendment, then doesn't hands off mean no registration? Isn't that state action?
Lisa: It is state action.
Rebecca: Then isn't everything state action.
Lisa: There are real benefits to registration that impacts the first amendment. Demand letters work better when backed by a registration. And when you have a registration, it's easier to push claims that some see as questionable, like dilution and merchandising cases.
Charles Duan: When it comes to disparaging marks, those have particularly strong expression value - used to express feelings, and therefore even worse to restrict than other registrations.
Pam: Is there an international standard?
Lisa: No, as I read the law, each country has discretion to set up the system it prefers.
Posted by Jake Linford on August 11, 2016 at 08:45 PM in Blogging, Civil Procedure, Constitutional thoughts, First Amendment, Information and Technology, Intellectual Property, International Law, Judicial Process, Property, Science | Permalink | Comments (0)
Thursday, June 09, 2016
Law, Psychology, and Impartiality
Donald Trump's suggestion that Judge Curiel should recuse himself seemed obviously wrong to me (and apparently to his own lawyers, who, as Neal Goldfarb pointed out in response to my prior post, did not even bother to raise the issue by motion). But today's Supreme Court decision in Williams v. Pennsylvania raises all the difficult questions that the Trump University lawsuit does not about when disqualification is required because a judge's "impartiality might reasonably be questioned." Richard Re also has more here at SCOTUSBlog.
On the face of it, the main questions are fairly straightforward. The District Attorney who personally approved the decision to seek the death penalty in Williams' case was later elected to be Chief Justice of the Pennsylvania Supreme Court. Decades after the original conviction, he was part of a panel that ruled against Williams' subsequent habeas petition. The Pennsylvania Code of Judicial Conduct--based on the ABA's Model Code--forbids judges from acting in a case where they "served as a lawyer in the matter in controversy, or w[ere] associated with a lawyer who participated substantially as a lawyer in the matter during such association." Chief Justice Castille participated in the Pennsylvania Supreme Court's ruling shortly before his retirement. After his retirement, the Court considered--and rejected--a motion for rehearing.
The first question before the Court was whether the violation of this rule would amount to a violation of constitutional due process. The Court, in an opinion authored by Justice Kennedy, held that it did: "Where a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level."
The second question that the Court had to decide was whether the judge's participation in the Pennsylvania Supreme Court decision amounted to harmless error, given that the ruling was unanimously decided by a multi-member court. This, to me, is a much more difficult question. The Court held that harmless-error review was not appropriate, as the disqualified judge could have influenced the other members of the panel, and " it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process."
Chief Justice Roberts, joined by Justice Alito, wrote a dissenting opinion arguing that due process does not require recusal when the petition does not allege that the judge had "any previous knowledge of the contested facts at issue in the habeas petition, or that he had previously made any decision on the questions raised by that petition." (emphasis in original).
Justice Thomas also wrote a dissenting opinion. He pointed out that the due process requirements of criminal proceedings are and should be different that those required by later habeas proceedings (a form of civil action), and argued in favor of greater deference to the relevant rules and legislative enactments. He also pointed out that the Pennsylvania Supreme Court's earlier decision to deny rehearing in the case--a decision made after Chief Justice Castille had retired from the court--might have "cured" the alleged due process violation.
So what, in my mind, makes this case so hard? Some of it involves law, politics, and difficult recusal issues.
(1) The Commonwealth argued that it was unreasonable to think that Castille would be biased given the amount of time that had gone by and given his relatively limited participation in the case. The murder at issue occurred in 1986, and the Pennsylvania Supreme court decision was issued in 2014. And although Castille had to personally sign off on the decision to seek the death penalty, the Commonwealth's brief called that an "administrative act," as Castille would have deferred to the prosecutors who worked up the case. But, as Justice Kennedy points out in the Supreme Court's opinion, this characterization of Castille's role is at odds with how he portrayed his role as district attorney when he ran for judge, as "multiple news outlets reported his statement that he 'sent 45 people to death rows' as district attorney." Perhaps this was mere campaign puffing, but it is hard for the state to walk back Justice Castille's involvement at this point. I am also personally troubled that the death penalty has become so politicized that these decisions have become effective fodder for judicial campaigns.
(2) The Supreme Court's decision points to the possibility of unconscious bias, a topic very deftly argued in an amicus brief by Yale's Ethics Bureau (and spearheaded by Lawrence Fox). But if the Court takes seriously the risk that a judge, in the Court's words, "would consciously or unconsciously avoid the appearance of having erred or changed position" taken as a prosecutor, than isn't that doubly true of the current justices on the Pennsylvania Supreme Court? If we believe that Chief Justice Castille could have tainted the panel's decisionmaking, then wouldn't we expect the remaining judges on the Pennsylvania Supreme Court to be subject to the same unconscious bias hindering a change of position? One of my favorite social science articles suggests that people are very bad at identifying their own biases--and, in fact, that further reflection upon possible biases only makes people believe even more strongly that their views are neutral and unbiased--even when the evidence would suggest otherwise. See Cynthia McPherson Frantz, I AM Being Fair: The Bias Blind Spot as a Stumbling Block to Seeing Both Sides, 28 BASIC & APPLIED SOC. PSYCHOL. 157 (2006).
(3) The underlying facts of the case are especially tragic, and show how various factors (including social stigma, overworked defense lawyers, and overly zealous prosecutors) can combine to create a miscarriage of justice. Williams, the defendant, was subjected to sexual abuse between the ages of 13 and 17. He later committed two murders--one at age 17 and one at age 18--and there was substantial evidence that both of the men he murdered were among those who had raped him. More importantly, the prosecutor's office knew that history, according to later-released notes stating that Williams' "relationship" to the two victims was "substantially similar." Williams' first attorney used that information as mitigation evidence in the trial for the first murder, and the jury returned a verdict of third-degree murder. In the trial for the second murder, however, Williams had new counsel and seemingly did not tell his attorney of this history. Perhaps a better attorney would have done a more careful job with the client interview and drawn out that information; certainly a better attorney would have examined the earlier proceedings. But for whatever reason, Williams' second attorney did not, and Williams himself testified falsely at trial that he had no earlier connection with the murder victim. All of this led to issues in the later habeas proceedings, including whether the defense attorney provided ineffective assistance of counsel and whether the prosecutor committed a Brady violation by failing to turn over evidence of the prior sexual abuse. Justice Thomas notes, in footnote 2 of his dissent, that it's an interesting question whether "a prosecutor could violate Brady by failing to disclose information to the defendant about the defendant’s motive to kill." Clearly, Williams knew of the prior abuse. But the stigma surrounding that abuse--particularly in the 1980s--may have hindered his willingness to raise the issue even when faced with a potential death penalty. But untangling the web of responsibility here is a difficult one: Williams admittedly committed perjury in the second proceeding; his attorney, at a minimum, did a bad job investigating the facts of the case; and the prosecutor knew of relevant mitigating evidence that defense counsel did not.
(4) Finally, I have to note one of the most offensive items from the briefing in the case. The Commonwealth's brief to the Supreme Court, at page 10, gratuitously goes out of its way to describe Williams as "a double murderer who had sex with men for money." Given that he was between the ages of 13 and 17, Williams was below the age of consent for the majority of the time period at issue. Not only is this statement offensive (as has been repeatedly noted, "Sex without consent isn’t sex. It’s rape."), it is also terrible advocacy. Point out Williams' responsibility to testify honestly; point out that sexual abuse does not justify murder. But disparaging a child as young as thirteen for his own rape only perpetuates the stigma associated with sexual abuse and trafficking and stops other victims from coming forward before the tragedy cascades further.
Wednesday, May 04, 2016
Two items worth checking with respect to federal judicial vacancies:
First is the new episode, The Hold Up, of the Life of the Law podcast, exploring the problem of vacancies in the lower federal courts. The piece focuses on Chief District Judge W. Keith Watkins of the Middle District of Alabama, who is the only active judge in the district (three are authorized) and is running the district with two senior judges (one of whom just had surgery) and six magistrates.
Second is this report from the Congressional Research Service, analyzing Merrick Garland's jurisprudence on the D.C. Circuit and trying to predict what he might do on the Supreme Court.
Sunday, January 31, 2016
The Supreme Court, On Demand
It has become almost a yearly rite: Congress introduces a bipartisan bill to require television cameras in the Supreme Court. The Justices express their concerns about the proposal. High-minded words are exchanged about the dignity of the courts versus the public’s right to know. Eventually the bill dies in committee.
The traditional arguments for cameras, such as public interest in following high-profile cases, or general appeals to transparency, are unlikely to resonate with the Court any more this year than in years past. But there is another case for Supreme Court cameras, and it stems from the federal judiciary’s own highly successful cameras program in the district courts.
In 2011, the Judicial Conference of the United States authorized a pilot program for periodically recording civil proceedings in fourteen federal district courts. The proceedings are then uploaded to the U.S. Courts website, where they are indexed and accompanied by additional information on the case. The entire process is conducted by the courts themselves, without media cameras or external video processing. The result has been a video library of hundreds of proceedings, ranging from pretrial conferences to summary judgment hearings to multi-day trials. The videos have been viewed hundreds of thousands of times.
The success of the district court pilot, which I explore in much more detail here, offers an excellent blueprint for a parallel Supreme Court program.
First, as the district court pilot has shown, both practicing lawyers and ordinary citizens stand to learn a great deal from actually watching Supreme Court proceedings. Watching the Court in action educates those in the legal profession about procedures before the Court, the issues of particular interest to the Justices, and ways in which an attorney might capture the interest and attention of the Court. For the public, watching the Court in action is all the more important: rather than allowing journalists and comedians define the Court’s work after the fact, the public can go straight to the source. Many studies suggest that watching an event on video (whether delayed or through live streaming) carries many of the cognitive benefits accrued from watching a live event. Whether the public would take advantage of this educational opportunity in any serious way is an open question, but at least that opportunity would exist.
Second, a recording (and/or live streaming) program would bolster the Court’s public legitimacy, by openly demonstrating the court’s commitment to transparency and accountability. Public support for the Supreme Court has been hovering at or below 50% for much of the past decade. At the same time, the public is increasingly seeking information through screen time. Watching the Court in action can demystify the judicial process and reduce public reliance in the messaging of politicians, reporters, and editorial writers. Supreme Court Justices, like all federal judges, are public servants. If they are proud of their work, they should welcome public viewing.
Finally, it suggests how the courts can achieve these educational and transparency goals without relying on the news media—the primary public concern of the Justices. Just as cameras have been placed in unobtrusive locations within district courtrooms, and the final recordings made available on the courts’ website, so too can recordings of Supreme Court proceedings be made available on its website, accompanied by rich contextual matter. The Supreme Court can also easily provide live streaming of oral arguments and case announcements without threatening the dignity or solemnity of the proceedings. Indeed, it may avoid the alternative, John Oliver-style, treatments. If the Court really wants to have some control over its own message, it cannot close its eyes and ears to the realities of the twenty-first century.
At least, we can hope.
N.B. -- The district court program has been an excellent resource for my teaching, and I recommend it highly for others whose students cannot as a practical matter visit the courthouse to observe proceedings.
Thursday, January 07, 2016
Speaking of judicial selection...
Monday, January 04, 2016
The Last Days of Elected Judges (1966 edition)
Happy New Year! It’s great to be back at Prawfs for another go-round. I thought I would start with an unusual find: while cleaning out my parents’ basement last month, I came across a yellowed but otherwise pristine copy of the Intermountain Jewish News, dated November 4, 1966. The IJN was (and is) a significant paper for the Jewish community in Denver and the Rocky Mountain West, and the edition I found was printed just days before the November 1966 general election—the last time that Colorado’s state judges would run for office. In that same election, voters passed Amendment 3, which ushered in a merit selection system: judges would henceforth be chosen by the governor from a slate prepared by a nonpartisan nominating committee, and subjected to retention elections at the end of their terms. Put another way, on Election Day 1966, Colorado voters chose their judges at the ballot box while simultaneously removing their ability to do so in the future. Fifty years later, that 1966 edition of the IJN provides a nice snapshot of a judiciary—and an electorate—struggling to balance a tradition of direct democracy with the promise of fair and impartial courts.
Colorado was the fifth state to adopt a merit selection system, and advocates of merit selection had to overcome both 90 years of state history (judges had always been directly elected) and the sense that nothing was particularly wrong with the existing system. There had been relatively little scandal or symptoms of crisis in the state judiciary in the 1950s and 1960s. Indeed, many of the men on the judicial ballot that November were widely viewed as persons of integrity, excellent jurists, and dedicated contributors to civic life. Sherman Finesilver, then seeking reelection to a state trial court position in Denver, would later serve nearly a quarter-century on the federal bench. Mitchel Johns was an active member of the local Elks lodge, and Saul Pinchick an active member of B’nai B’rith. Neil Horan, already an experienced incumbent, would survive the 1966 election and later preside over litigation concerning Colorado voters’ rejection of the 1976 Winter Olympics.
It was hard enough just to get merit selection on the ballot. The Colorado Bar Association (CBA) had recommended the end of partisan judicial elections as far back as 1940, when Missouri became the first state to adopt the merit selection system. But proposed ballot initiatives failed to make it through the Colorado legislature in 1949, 1957 and 1959. Still, support slowly grew. When yet another effort by the CBA failed in the legislature by one vote in 1965, the CBA and the League of Women Voters took to the streets and collected more than 47,000 signatures in favor of the ballot initiative. Merit selection, in the form of Amendment 3, would finally be up for a vote in 1966. It proposed sweeping changes to the Colorado Constitution, replacing direct election of judges with a system of nominating commissions, gubernatorial selection, retention elections, and formal judicial disciplinary measures.
The debate over Amendment 3 was vigorous and vocal in the months leading up to the election. Proponents urged adoption as a means of improving the overall quality of the judiciary, promising that judges would not be prone (or at least less prone) to the pull of partisan politics, and that nonpartisan nominating commissions could focus on finding the best people for the job. (Indeed, in a somewhat Pollyanna-ish take, proponents argued in the state’s 1966 voter guide that under merit selection, “The courts would be completely removed from politics.”) Opponents urged that citizens should not give up their right to directly choose judges, a method that both held judges directly accountable to the people and checked the influence of the governor on the judiciary.
The judicial candidates were caught in the middle of the debate. Amendment 3 was premised in part on the notion that elected judges were inferior to appointed ones. Candidates had to show that they were qualified and impartial, even as they had to work within the existing party system to have a chance at success. They walked this tightrope by tailoring their campaign ephemera for the most part to avoid any hint of politics--a strategy still used by judges even in highly partisan election states today. Only three of the ten candidates placing ads in that November 1966 edition of the IJN made mention of their party affiliation. Most emphasized only their professional qualifications: experience, professional skills, and ties to the local community.
Election Day proved to be a mixed bag for the incumbents. Justice Edward Day, a Democrat, was reelected to the state supreme court by the skin of his teeth, coming in third in the race for three open seats behind two Republican challengers. Justice Albert Frantz, who had each been elected in 1956 as part of a near-sweep by the Democrats, was not so lucky. He placed fourth in at-large balloting, just a few thousand votes behind Day, and lost his seat. The trial judges highlighted here—Pinchick, Horan, Johns, and Finesilver—were all reelected and became long-serving jurists.
Amendment 3 also fared well on Election Day, passing by a margin of 53% to 47%. One key to victory for the merit selection proponents was the emphasis on retention elections: voters were not being asked to give up their franchise, but rather to exercise it in a different, ostensibly less partisan, way. It no doubt helped reformers as well that voters in 1966 reelected John Love, a popular and trusted governor, who would be charged with the final appointment decisions under the new system.
There are some useful lessons to be drawn from this history. Colorado’s shift in 1966 was certainly in part a product of bar association’s determination, the state’s political culture, and the era itself. But merit selection was also possible because it was presented as an integrated package of reforms. Nonpartisan selection commissions, gubernatorial appointment, retention elections, and a judicial discipline commission each provided a piece of the “quality judges” puzzle. (A final piece, judicial performance evaluation, was added in 1988.) Removing any of these components, or instituting them in a piecemeal way, would weaken both the appeal and the efficacy of the merit selection system.
The ghosts of 1966 may only live in basement files, but the issues surrounding judicial selection methods are far from settled. States continue to experiment with variations of contested judicial elections, merit selection, legislative appointment, and lifetime appointment. Nor is the federal judiciary immune from the larger discussion: Senator Ted Cruz recently called for retention elections—but only retention elections—for U.S. Supreme Court Justices. I will examine that idea more closely in a coming post.
Thursday, December 31, 2015
ADR and the Pro Se Litigant
I previously blogged about mediation as a means of docket management. I would next like to discuss how it provide pro se litigants with greater access to justice. Unrepresented litigants pose problems both for the forum and for themselves. For the judge, it is the delicate balancing act of helping the individual without representing them. Here is a good account of one judge's perspective.
As discussed previously, ADR provides many benefits over adjudication. The informality of the process is more favorable to the pro se litigant. The self represented party has less concerns with the formal rules and deadlines of the adjudication process (other than the obvious ones like timeliness). A facilitative mediation (one in which the neutral facilitates a discussion between the parties) allows the individual to speak directly with the other party to present their position.
Neutrals are ethically prohibited from representing a party, and cannot provide legal advice. However, in the case of an early neutral evaluation (ENE) technique, the neutral may provide an analysis of the merits. This allows both parties, including the pro se, to make informed decisions on settling the case.
Sunday, December 27, 2015
Mediation as a Means of Docket Management, or How I Learned to Stop Worrying and Love ADR
Alternative dispute resolution (ADR) is increasing in use in courts at all levels. A development has been the active encouragement of the use of mediated settlements as opposed to merely making it available to the parties. The U.S. District Court for the Western District of New York has an ADR Program in which the parties are initially referred to a mediator to explore ADR possibilities. The FAA has a statutory commitment to ADR at the administrative level for the resolution of government contract claims.
Mediation may be with an independent third party neutral rather than settlement discussions held by the presiding judge in the case. Judges, however, can offer their services as mediators. The judge, as is the case with the FAA, may be a neutral party recused from the case altogether. In those instances, the parties have the benefit of the judge's experience without fear of prejudicing a decided outcome. In fact, one type of ADR technique is the early neutral evaluation (ENE) in which the neutral (often a judge) provides the parties with an analysis of the strengths and weaknesses of their respective positions.
ADR possesses many advantages over protracted litigation. The biggest being time. Courts have scarce resources. One law review article discusses the scarcity of resources among Federal appellate courts to hold oral arguments and decide cases. In a mediation, the parties, with the assistance of a neutral, may establish a rigorous schedule to exchange information. They may then quickly enter into discussions to attempt to resolve the matter. The case can be managed based on the needs of the parties rather than on the available resources of the court. Ultimately, agreed upon settlements mean less decisions to write, and free up valuable resources for those that must be decided.
Friday, December 18, 2015
Klein and NFL Officiating
I no longer watch football, particularly the NFL; the league is just too corrupt and the sport just too gladiatorial for my taste. But I cannot avoid news stories related to the league. I was interested in the league's announcement this week that, in the wake of increasing criticism of the game officiating this season (that may or may not be justified), game officials would be in contact the league vice president of officiating during games about replay and other "administrative" matters. This has sparked concerns among many, including the former VP of officiating, about the lack of accountability and increase in uncertainty from having a league official whispering into the ref's earpiece. One former official worried that we could not know whether a changed call was because the game officials got together or because "someone in New York doesn't like the call." As another former official said, "what it looks like is that the league office is making decisions on who possibly wins or loses the game."
The last concern sounds in the sports-officiating equivalent of United States v. Klein (which returns to SCOTUS later this term with a case challenging a law that may actually be unconstitutional for the first time since 1872): Just as Congress cannot dictate specific decisions or outcomes in specific cases, the NFL should not be telling officials what calls to make or how to apply the rulebook on specific plays in a specific game.
Thursday, October 29, 2015
Yes Virginia, there is a trial penalty, and it's four times larger than we thought
Last year David Abrams, Penn, stunned the criminal law world with a study concluding that defendants actually receive shorter sentences at trial than they do for pleading guilty. Rather than "penalizing" those who exercise their right to trial, we actually punish those who plead guilty more harshly, turning decades of plea bargaining debates on their head.
Abrams was wrong, and he’s not the only one.
My latest article reveals significant conceptual and statistical errors in the canonical methodology that cause most other studies, including those by the United States Sentencing Commission (USSC), to greatly underestimate the trial penalty. Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study.84 Miss. L. J. 1195 (2015) (Selected through peer review). Where leading researchers report that the federal trial penalty is only around 3-15%, I find that the average federal trial defendant receives sentences around 64% longer than if they had pled guilty instead. In other words, federal defendants cannot exercise their constitutional right to trial unless they are willing to risk a 64% longer sentence, a heavy "penalty" indeed. Where Abrams reports that Chicago defendants pay a similar penalty for pleading guilty, I reveal that his data actually suggests that plea defendants receive shorter sentences than those who go to trial.
Applying these findings, I demonstrate that the federal trial penalty is so large that only a tiny fraction of defendants could ever rationally choose to go to trial. In such a system, the constitutional right to trial by jury becomes less of a “right” and more of a trap for fools.
Why are my findings so different than everyone else's? Glad you asked.
[More after the fold]
The biggest reason prior federal studies underestimate the trial penalty is that they fail to include the effects of the "acceptance of responsibility" discount. Under the Federal Sentencing Guidelines, defendants who “accept responsibility” by pleading guilty automatically receive a 2-3 point discount to their sentences, but lose this discount if they insist on trial. As such, it operates as a statutory plea discount, or "trial penalty," that sets the baseline for all plea negotiations. Because prior studies do not include the effects of acceptance of responsibility, they heavily underestimate the price defendants actually pay for going to trial. Acceptance of responsibility is written into the guidelines and the USSC's data itself, causing prior studies to miss these effects. Indeed, it is impossible to measure the effects of acceptance of responsibility without reverse engineering the data with several hundreds of lines of code, which I think I am the first to do.
I next explain that rather than measuring the "trial penalty" as that term is understood in crim law debates, Abrams asks whether a rational defendant would be better off going to trial. Defendants are better off going to trial if they face a negative "Abrams Trial Penalty," which Abrams claims to find. Abrams is quite upfront that he is not measuring the traditional trial penalty and, indeed, argues that crim scholars should focus on his new metric. The problem is that crim scholars generally do not discuss this metric because it is usually impossible to measure. A positive Abrams Trial Penalty would indicate that the average plea defendant receives a percentage discount that is larger than their percentage odds of acquittal if they went to trial. Because plea defendants do not go to trial, however, we cannot know what their odds of acquittal would have been without a highly expensive controlled experiment. (FYI, I'd be open to grants to explore the question!). As I explain, Abrams' innovative methodologies cannot overcome this fundamental problem. By reanalyzing Abrams' findings, however, I show that the normal "trial penalty" in Abram's dataset is likely positive: defendants do pay a price to go to trial.
In addition, Abrams and many prominent scholars report average sentences as the average sentence excluding defendants that receive probation only. Because probation only is the lightest sentence you can receive, however, excluding those cases artificially inflates the average sentence and produces a metric that is quite misleading and largely irrelevant to crim law debates. Nonetheless, many well known sentencing scholars, including some commissioned by the USSC, persist in reporting the "average incarceration sentence" rather than, or in addition to, the actual average sentence defendants receive. As I explain, this peculiar metric appeared in the 1980's due to fundamental misunderstandings about the nature of censored data and selection effects, and confusion about the proper application of the Heckman 2-step correction factor and Tobit regression to control for censoring. (End stat technobabble). This and other common methodological errors are discussed further in my piece. (I put most of the technical stuff in footnotes).
One major limitation of my study is that, like virtually all sentencing studies, it cannot account for the effects of charge bargaining. Because charge bargaining works to increase the trial penalty, however, it does not affect my final conclusion that for the vast majority of federal defendants, trial by jury is not a "choice" or a "right." It is a "mistake."
Tuesday, September 22, 2015
Piling on Judge Posner
Cue the outrage: Judge Posner is in the news again for researching facts outside the record and using those facts in judicial opinions. His earlier research included issues of donning and doffing work clothes, dreadlocks in prisons, guns and danger, a traveling would-be preacher and campus geography, and a rabbi involved in a dispute with Northwestern University. Unlike some judges who do research but don't disclose it, Judge Posner is forthright about his research, discussing it at length in chapter 5 of his book, Reflections on Judging.
Although federal judicial ethics rules (Canon 3(A)(4)) are implicated when judges do their own fact research, in practice the propriety of the research tends to come down to whether judicial notice would be proper. For adjudicative facts (generally what Judge Posner is researching), judicial notice is only proper under the rules of evidence if it can be "accurately and readily determined from sources whose accuracy cannot reasonably be questioned." F.R. Evid. 201. (There is no exception for "background information," although such research might meet the requirements for adjudicative facts, or be mere harmless error). Especially at the appellate level, fact research can also mess with the burden of proof, the prohibition of judges as witnesses, and the requirements for admissibility of treatises under the hearsay rule.
Some of Judge Posner's research is entirely proper under those requirements. Some is not. And unless you count the availability of a motion to reconsider, it fails the procedural requirement of Rule 201: "On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard." One of the concerns about independent judicial research is the loss of an opportunity to argue that the "facts" the judge finds are wrong, or are not indisputable, or have been misapplied. In addition, Judge Posner uses some of his research to draw inferences, and that is an area where an opportunity to be heard is especially important. In U.S. v. Boyd (the gun case) for example, research about the nature of ammunition and the location of buildings was used to infer that shooting a gun into the air at 3 a.m. in downtown Indianapolis created a "substantial risk of bodily injury to another person." In the traveling preacher case, Judge Posner drew a conclusion about the comparative desirability of speaking locations from Google's view of the college campus. The research involves not just "facts," but also inferences from those facts, and so research done at the appellate level, outside the record, with no opportunity to reply, can be particularly troubling.
But hold on a minute. . . .When I initially researched and wrote about the issue of judicial research, I did something I had never done before, and never expect to do again: wrote a law review article with two endings. Independent judicial research raises some significant policy concerns, and I worry about those, but there is also a powerful policy counterargument, and Judge Posner makes it in the most recent case, Rowe v. Gibson.
- This was a case with a pro se plaintiff, and the information disclosed by Judge Posner's research could easily have been put in the trial court record by competent plaintiff' counsel.
- The defendant's medical expert (whose views were challenged by information that can be found online, as well as by the plaintiff's own sworn statements about his symptoms) was himself a defendant
- This was not the review of a jury fact-finding, but a question of whether a fact issue existed that should be submitted to the jury rather than resolved through summary judgment. Judge Posner's research would thus lead to a fuller fact-finding process, not disrupt one.
To put it more broadly -- do judges need to accept a result that may be very wrong in "fact" (put even more strongly, a miscarriage of justice) even when asymmetrical party resources have severely skewed the record? Judges themselves are strongly divided on this issue, polls show. Regarding the Rowe case itself, opinion is split up the middle in an Above the Law poll (scroll down and click on "View Results"). Criminal cases may raise especially strong concerns. Seventh Circuit judge Diane Wood once noted that Internet research about street names cast doubt on a criminal conviction. U.S. v. Harris, 271 F.3d 690, 708 n.1 (7th Cir. 2001) (Wood, J., dissenting). However, even if we want to allow research to promote accurate outcomes, the need to give the parties timely notice and an opportunity to be heard is crucial.
This policy debate is not easily resolved, and one can construct a parade of horribles on both sides. In the meantime, lawyers would do well to take care at the trial level that important information is made part of the record.
Monday, September 21, 2015
Encouraging Jury Service
In Civil Procedure, we spend a lot of time teaching students how to determine when the Seventh Amendment provides a right to juries in civil trials, but very little time talking about how juries actually function and why they are important. In studying post-trial motions, we focus on debates about whether small amounts of circumstantial evidence are sufficient to create a fact issue and whether apparently aberrant verdicts allow the imposition of a new trial. The result can be that law students, despite legal training, share the public's general misconception about jury competence, which in turn may make them avoid jury trials as lawyers and encourage clients to fear juries.
But whatever we do in law school, the prejudice is out there. Bad joke: the problem with juries is that people who serve on them are too stupid to get out of jury duty. It's disrespectful to the many people who understand that jury service is important to the rule of law, an important political right, and personally rewarding. It also ignores the substantial body of empirical evidence that juries mostly get it right.
Nevertheless, the nugget of truth that makes the joke work is that sinking feeling we get when we receive a jury summons, and the reality that many jurisdictions have very high no-show rates. The system would function better if summoned jurors would appear and if the pool of potential jurors better reflected a cross section of the community. Are there measures that court systems could take to increase participation? Absolutely. Many are identified in the ABA's Principles for Juries and Jury Trials (Principle 2). This blog entry will focus on three ways to get more people to the courthouse.
1. Who gets summoned? The choice of sources used to create master jury lists (aka jury source lists or jury wheels) affects both the size and composition of the pool. Voter registration and drivers license lists (the two most common sources) are not reliably updated. Use of these lists results in a large (often about 20%) number of undeliverable summonses, and it leads to a pool that tends to over-exclude young, poor, and urban citizens. What might be more reliable? New York, for example, also uses addresses of state income tax filers and the recipients of unemployment insurance and family assistance benefits. Those are addresses that the recipients have a strong incentive to keep current.
2. Can people afford to serve? Juror pay also deters many people from showing up when summoned. When I was on a jury and spent four days at the courthouse, I had to rearrange my schedule but still got paid. For those who get paid only while working, however, especially those with little extra room in the family budget, jury duty is a hardship. Take a look at this list of jury fees -- there's not a state that pays enough to compensate even a minimum wage worker for a lost day of work. This, too, is apt to skew the composition of empaneled juries.
3. Can we allay anxieties? The first two suggestions are politically difficult (admitting that something as simple as choosing an address list implicates political and social policies) and expensive (increasing juror pay to income replacement would be extraordinarily costly). But some people avoid jury service because they don't know how to drive downtown and park, don't know what to expect, and fear a long, boring day in an uncomfortable chair. That barrier to service can be addressed with a combination of internet communication and actual amenities. Not free, but very doable. Watch this excellent YouTube video, Jury Service 101, from the Mecklenburg County, NC courts. In addition to a street level view of where to park and where to report, it notes that jurors have access to a comfy kitchen area, business center, fresh air balcony, game room, movies (and popcorn!), and free onsite child care. This well produced video could be a model for court systems around the country.
As an academic, I'm going to rethink how I teach my students about the role of juries and the judge/jury relationships. As a citizen, I'm going to advocate more juror-friendly policies. Join me?
Monday, September 14, 2015
Subconscious Juror Bias
I am a big fan of juries. But it is our job as lawyers to be sure that we structure the process of summoning, seating, and using juries in a way that maximizes their effectiveness. I have argued that we need to do a better job of writing instructions they can understand (because they really try), and that broader jury question formats are more consistent with the political and instruments purposes of the jury. My interest became more than academic when I actually served as a juror in a criminal trial in 2014. That experience reinforced my theoretical expectations: a very diverse group of jurors analyzed the evidence, listened to and learned from each other, deliberated carefully, referred to the court's instructions, and took the process very seriously.
I was so enthusiastic about the experience that, the following semester, I taught a seminar about juries. The students read a lot of empirical information about juries -- from selection through deliberation and on to post-service issues. And they did a bit of research of their own. (The students also blogged, which I recommend as a way to get students to think and write). One issue kept coming up in almost every context: the impact of juror biases, especially racial biases, on the entire jury system. The Batson process would be laughable if the impact weren't so serious. In addition, as in other areas of the law, subconscious bias on the part of people who believe themselves to be racism-free is hard to prove.
That's why I found this recent New Jersey case, State v. Brown & Smith, so fascinating. Brown and Smith were charged with carjacking, and their defense was that they were not the carjackers. During jury deliberations, Juror #4 told two other jurors that she had seen two African-Americans in her neighborhood and this made her “nervous” because this was not typical in the area where she lived. She therefore thought this “may have had some kind of sinister connection to the trial.” The judge questioned all three jurors and assured them that they were not in danger, but the jurors' assumptions about race went largely unexamined.
In considering on appeal whether the jurors should have been removed, the Appellate Division got it:
When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based only on the race of the participants, she revealed a deeply-rooted, latent racial bias that required her removal from the jury. The trial judge erred in permitting her to remain on the jury and continue deliberating merely based on the juror's self-serving denial of racial bias. Her initial instinctive, subliminal association of race with criminality or wrong-doing far trumped her subsequent assurances of impartiality. In her willingness to come forward and candidly report her misgivings, Juror 4 also revealed her unawareness of how engrained her racial bias was in her subconscious. This incongruity between Juror 4's conscious acts and latent beliefs is one of the most pernicious, unintended aspects of our jury system. (p. 3 of PDF)
The court wrote at length about the trial process, hoping to provide guidance to trial judges that would make clear that the trial judge's attitude -- "[W]e expect to some extent people have developed certain prejudices, some fixed ways of thinking" -- is unacceptable. A juror's assurance that he or she has no biases, or can set them aside, should not overcome evidence of lurking racial profiling.
By the way: for a wonderful weekly email with news related to both civil and criminal juries, subscribe to the National Center for State Court's Jur-E Bulletin.
Monday, June 15, 2015
Judges Should Volunteer for Cognitive Testing
Lifetime tenure has allowed some of this country’s most venerated jurists to serve well into advanced years. Oliver Wendell Holmes, Jr. and John Minor Wisdom both stayed on the bench into their 90s. Judges who have elected to take senior status, all of whom are 65 or older, handle roughly 15% of the federal courts’ workload on a volunteer basis.[i] About 12% of the nation's 1,200 sitting federal district and circuit judges are 80 years or older.[ii]
But lifetime tenure has a potential downside. Roughly one quarter of individuals in their 80s (and 5% of those in their 70s) suffers from dementia.[iii] One might hope that federal judges who begin experiencing signs of dementia would retire before adversely impacting litigants. But dementia typically lasts years and 92-93% of district and circuit court judges die within one year of their retirement.[iv] Subjective self-policing is doomed to failure because many people with cognitive deficits are unaware of them.[v]
A doctor assessing cognitive impairment relies on second-hand observations in addition to first-hand examination of the patient. In the judicial context, there is a structural impediment to using second-hand observations. As one chief judge recently observed, “lawyers (who are in the best position to observe judicial behavior) are reluctant to point an accusatory finger at judges before whom they appear.”[vi] Colleagues may not recognize problems because symptoms can vary. For example, personality changes, poor judgment, or slowed processing speed can manifest years before the onset of memory impairment in some people with early dementia.
Clinical examinations are therefore essential. At least one federal district judge, Jack Weinstein (aged 93), has volunteered to undergo annual neurological evaluations.[vii] Frequent, focused expert capacity assessment is needed to make sure judges do not stay on the bench too long. The current system relies on ineffectual self-policing, complaints by lawyers naturally reluctant to lodge them, and limited oversight by chief judges. The stakes are too high for such a flawed and informal approach. All federal judges of advanced age should follow Judge Weinstein’s example and voluntarily submit to regular cognitive testing.
[ii] Jospeh Goldstein, Life Tenure for Federal Judges Raises Issues of Senility, Dementia, ProPublica (Jan. 18, 2011), at http://www.propublica.org/article/life-tenure-for-federal-judges-raises-issues-of-senility-dementia (visited May 9, 2015).
[iii] B.L. Plassman et al., Prevalence of Dementia in the United States: The Aging, Demographics, and Memory Study, 29 Neuroepidemiology 125, 128 tbl.2 (2007).
[iv] Albert Yoon, As You Like It: Senior Federal Judges and the Political Economy of Judicial Tenure, 2 J. Empirical Leg. Stud. 495, 527 tbl.10 (2005).
[v] Giuseppe Gambina et al., Awareness of Cognitive Deficits and Clinical Competence in Mild to Moderate Alzheimer's Disease: Their Relevance in Clinical Practice, 35 Neurol. Sci. 385, 387 (2014).
[vi] In re Complaint of Judicial Misconduct, 758 F.3d 1161, 1161 (2014).
[vii] Goldstein, supra note 2.
Thursday, June 11, 2015
Judicial Specialization, Patent Cases, and Juries
Judicial specialization has long been a topic of debate among patent lawyers and scholars. In recent years, critics (including Seventh Circuit Judges Diane Wood and Richard Posner) have questioned the wisdom of granting the U.S. Court of Appeals for the Federal Circuit exclusive jurisdiction over patent cases. Yet, judicial specialization in patent cases is not limited to the Federal Circuit. Over the past decade or so, certain federal district courts--particularly, the Eastern District of Texas and the District of Delaware--have become patent litigation "hot spots," and the judges in those districts have developed substantial patent expertise. Moreover, Congress established the Patent Pilot Program in 2011 "to encourage enhancement of expertise in patent cases among district judges" by funneling patent cases in certain districts to designated judges.
Proponents of judicial specialization argue that it promotes efficiency, uniformity, and predictability for litigants, while opponents claim that specialized courts are subject to bias, capture, and tunnel vision. Recent scholarship also addresses the question whether specialized courts are more likely to compete for lawsuits, or participate in "forum selling," as discussed here and here.
I am currently working on a paper, Influencing Juries in Litigation Hot Spots, that explores a different problem with specialized trial courts: the potential to improperly influence the jury pool. The situation with patent cases in the Eastern District of Texas, recently highlighted on John Oliver's show, provides a prime example. In the Eastern District of Texas, repeat litigants like Samsung have attempted to generate goodwill with the citizens of Marshall and Tyler (i.e., potential jurors) by sponsoring an ice skating rink outside the courthouse, granting college scholarships to Marshall and Tyler students, and donating television monitors to the local high school. While the small towns of Marshall and Tyler have no doubt benefitted from Samsung's public relations campaign, the cost to our justice system--where juries are supposed to be impartial--is arguably too high.
Monday, June 08, 2015
The Bellwether Settlement
A curious thing is happening in a Bergen County court in New Jersey. A set of trials scheduled to go forward this summer were resolved through an unusual settlement process. In a case that involved more than 3,000 defective hip-implants, the parties reached a $1 billion global settlement in record time, using what the court described as an unprecedented series of "bellwether settlements."
By way of background, courts have used "bellwether trials" for a long time to resolve large numbers of similar lawsuits. In a bellwether trial (or trials), the parties select a small group of cases for jury trial out of a large group of similar claims. A steering committee of plaintiff and defense counsel then use information gleaned from trial outcomes to resolve the remaining cases. Bellwether trials have been used to resolve many high profile cases--perhaps most famously in the Vioxx litigation against Merck and, most recently, in GM's litigation over its defective ignition switches.
But instead of "bellwether trials," the court facilitated a system of "bellwether settlements." That is, rather than use juries to decide the merits and value of certain cases, the parties--supervised by the court, magistrates and special masters--relied on a structured sample of 21 mediations involving typical plaintiffs to forge a global settlement. It was hoped that the different settlement outcomes, much like a bellwether trial, would offer the parties crucial "building blocks"--providing critical information about how to globally resolve the remaining cases. And Judge Martinotti, the New Jersey judge designated to handle all of the cases, was incredibly successful. The process not only resolved more than 2,000 lawsuits in New Jersey state court, but another 1,000 pending lawsuits in federal multidistrict litigation, all in one fell swoop.
A few thoughts beneath the fold.
I suppose many bellwether trials are really bellwether settlements in disguise. Many of the cases that parties select as the "bellwether," as it happens, end up settling on the eve of trial. And because counsel in multi-district litigation share information, when enough cases settle, the parties learn how to structure a global settlement. So, here the court just chose to proceed based on the not-altogether-crazy idea that no case would reach a trial on the merits. But the court's complete embrace of a "bellwether settlement" scheme raises interesting questions. What do "bellwethers" mean when the procedures and outcomes lack any connection to the decisions a jury might reach?
Most proponents of bellwether trials often assume some role for a jury in resolving a complex dispute. First, bellwether trials provide a "dress-rehearsal" for other jury trials likely to come in a large case by helping parties hone their evidence and their arguments. Second, a bellwether jury verdict assures that any eventual settlement bears some relationship to the merits of the dispute. Third, the prospect of a jury trial in complex litigation wards off the threat of collusion and assures that the plaintiffs' counsel have sufficient bargaining strength in settlement negotiations. Cf. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997) ("Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer... and the court would face a bargain proffered for its approval without benefit of adversarial investigation"). Fourth, a bellwether jury serves an important democratic function with deep roots in the history of American adjudication--providing bulwark against unelected judges who may harbor biases about what makes for a fair global resolution.
By dispensing with the jury entirely, bellwether settlements risk all of these important benefits. But you could argue they have other advantages. According to Judge Martinotti, the process yielded important information about claims, remedies and strategies that parties often would not share in preparation for a high-stakes trial. First, although bellwether trials provide a good way to measure how random members of the community value common claims, they don't necessarily help counsel learn how random beneficiaries of a global settlement will value those same things. When the end-game is a global settlement, a focused sampling of arms-length negotiations could help counsel better identify solutions from the ground up.
Second, bellwether settlements also avoid the problem of outlier or clustering verdicts--unexpectedly high or lottery-like jury awards that are difficult to average and threaten the chances of a more global settlement. See Alvin K. Hellerstein, Managerial Judging: The 9/11 Tort Responder Litigation, 98 Cornell L. Rev. 127, 161-163 (2012)("at most, [bellwether trials would] have brought about settlements in individual claims or small clusters of claims, [but the] parties would not have had sufficient information to effect a wholesale global settlement."); Brian R. Martinotti, Complex Litigation in New Jersey and Federal Courts,44 Loy. U. Chi. L. J. 561, 575 (2012) ("[I]f the parties and counsel are in the midst of successful settlement discussions, a bellwether trial that results in a verdict outside the range of settlement—i.e., an outlier—may empower a party to go forth with the litigation and cause negotiations to break down.")
Finally, many leading members of the steering committees claimed that the structured mediations built "trust" among counsel in ways that don't easily occur until much later in multi-district litigation.
Bellwether settlements are part of a larger long-term trend taking place in the American courthouse. As public courts export more cases to private dispute resolution--like mandatory arbitration--they also have imported values from ADR to find new ways to creatively resolve disputes, using court-annexed arbitration, special settlement masters and magistrates, and "problem solving" courts. See Judith Resnick, Diffusing Disputes: The Public in the Private of Arbitration, the Private in the Courts, and the Erasure of Rights, 124 Yale L.J. 2084 (2015)(describing policies that "press trial-level judges to become conciliators, to deploy other individuals as “neutrals” to mediate or to arbitrate in courts, and to outsource decision making to the private market"). The result may be solutions that promise more speed, input, legal access, and as some have described, "paths to justice" than traditional trials.
But the challenge is to determine what role our courts should play when large cases and "vanishing trials" push them to move outside their traditional public role as adjudicators--hearing adverse claims, supervising controlled fact-finding, and interpreting law. Judge Martinotti continues to play that traditional role in many complex cases. But like other judges in complex litigation, here his role seemed more like a public broker in a complex settlement marketplace--helping the parties set ground-rules and open the lines of communication to encourage people to enter into valuable contracts, exchange information about them, and in the process, and build trust necessary to forge a much larger, global settlement.
Thursday, June 04, 2015
Armstrong and Implied Public Rights of Action
Thank you to PrawfsBlawg and Howard for the opportunity to join the conversation as a guest blogger this month. I'd like to begin by raising a question about the enforcement of federal law: May federal courts imply public rights of action when Congress has not expressly authorized it?
I have written about this question before here and, to a lesser extent, here. The problem of implied public rights of action in favor of the United States and the states has some differences (and some similarities) with the problem of implied private rights of action in favor of private litigants. Recently I've been mulling over the problem in light of Armstrong v. Exceptional Child Center, Inc. (For Steve's and Howard's commentaries on Armstrong, which raise intriguing but different questions than mine, go here and here.) The reason I've been mulling over Armstrong is Justice Breyer's concurrence, which suggests that the United States might have an implied public right of action to enforce the "equal access" mandate of the Medicaid Act even though private litigants do not.Prior to Armstrong, implied rights of action under the Supremacy Clause had become an important way for beneficiaries to enforce federal regulatory programs. For some time, however, this right of action had been on a collision course with the Court's retrenchment from implied private rights of action under federal statutes and private enforcement via Section 1983. And in Armstrong they collided.
Writing for the Court, Justice Scalia explained the Supremacy Clause states only a "rule of decision" and does not support implied rights of action. How, then, have federal courts granted injunctions against state officials without express congressional authorization? Judge-made remedies, Justice Scalia responded, are appropriate "in some circumstances," such as in Ex parte Young. Congress may, however, preclude judge-made equitable remedies and, the Court held, had done so by authorizing the Secretary of Health and Human Services to withhold Medicaid funding for violations of the statute.
It remains to be seen how much private enforcement of federal law has been swept aside by the Armstrong Court. One possibility is "not much." As others have noted, the Court honed in on specific features of the Medicaid Act that it held precluded private enforcement.
What I'm most intrigued by is what Armstrong portends for public, rather than private, enforcement. Here's where Justice Breyer's concurring opinion interests me. He suggested that "[i]f withholding funds does not work, the federal agency may be able to sue a State to compel compliance with federal rules." Breyer cited Arizona v. United States, in which the Obama Administration sued to enjoin Arizona's "hand me your papers, please" immigration policy. As I've explained elsewhere, the Administration relied upon an implied public right of action to enforce federal supremacy over immigration matters. Justice Breyer's citation to Arizona presents a puzzle: Why would Congress's selection of a public remedy to enforce the Medicaid Act implicitly preclude private enforcement but not additional public enforcement? If anything, the argument might run, the specification of a public remedy implicitly precludes other public remedies but not private ones.
To press the argument further, we might say that Armstrong's interpretation of the Supremacy Clause sweeps away implied public rights of action in cases like Arizona v. United States. Now that we know the Supremacy Clause doesn't support rights of action, the most obvious places to turn for judicial authority to imply public rights of action are Article II (when the federal executive sues), the specific constitutional or statutory provision at issue, or federal equity. I've never been comfortable with the view that Article II alone implies and even requires public rights of action. In some cases other constitutional provisions or statutory provisions will support implied public rights of action. That leaves equity, which Armstrong reaffirms "in some circumstances." Perhaps implied public rights of action for injunctive relief fit within those circumstances, but in some cases, including Arizona, that's far from clear.
Comparing Justice Scalia's and Justice Breyer's opinions muddies the waters. Justice Scalia offers some examples where federal courts may fashion equitable remedies. Regulated parties are in, it seems, but beneficiaries of federal regulation (and the federal government in many cases) may be out. Scalia also suggests the history of English equity matters, which recalls his restrictive approach to private remedies in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. and Great-West Life & Annuity Insurance Co. v. Knudson. (For a fascinating discussion of these cases' restriction of remedies, see Judith Resnik's 2003 article.) If the federal government cannot analogize itself to a regulated party claiming an immunity from state regulation, Scalia's vision of equity might preclude an implied public right of action. By contrast, Justice Breyer's view leaves implied public rights of action against state officials largely, if not entirely, intact. His concern was that private remedies may interfere with agency expertise. And, not surprisingly, he was comfortable with an implied public right of action to give HHS another tool to enforce federal rules.
Moving forward from Armstrong, it will be necessary to take greater care to tease out not only the distinction I'm raising here between implied private and public rights of action but also the distinction Mike Dorf draws here between statutory and constitutional enforcement. Where the federal government claims that the Constitution itself (rather than a statute plus the Supremacy Clause) preempts a state's action, including in an immigration case like Arizona v. United States, both distinctions matter. Thus, Armstrong raises interesting and practically important questions not just for private, but also for public, enforcement.
Thursday, May 14, 2015
Recent SCOTUS Decision in Bullard: Right Decision, Wrong Result
Last week, in Bullard v. Blue Hills Bank, the Supreme Court unanimously held that an order rejecting a bankruptcy debtor's proposed Chapter 13 plan is not final for purposes of appellate review. The holding highlights a fundamental problem in appellate jurisdiction: the lower court is often the gatekeeper of the right to appeal important interlocutory orders and--too often--jealously holds onto the key.
The debtor in Bullard sought to confirm a Chapter 13 plan that would have required him to pay in full the secured portion of his residential mortgage loan while discharging most of the unsecured portion (the latter a function of the fact that the value of the real property was less than the total loan amount). The bankruptcy court rejected that plan because of the hybrid treatment of the debt--an issue as to which there was conflict in the case law. The Bankruptcy Appellate Panel accepted a discretionary interlocutory appeal under 28 U.S.C. § 158(a)(3) and affirmed. But the BAP then refused to certify the appeal for further review in the First Circuit under 28 U.S.C. § 158(d)(2) (analogous to 28 U.S.C. § 1292(b) in non-bankruptcy cases). When the debtor appealed to the First Circuit, that court dismissed the appeal, concluding that the denial of a confirmation plan was not final, and the absence of BAP certification deprived the appellate court of discretionary jurisdiction over an interlocutory order.
The Supreme Court's holding is not itself remarkable. It boils down, essentially, to a diatribe against the floodgates of appellate litigation that would result if interlocutory orders (even important ones) were always immediately appealable. It's actually hard to fathom why the Supreme Court even bothered to hear the case. No one would seriously contend, for example, that the denial of summary judgment (in a non-immunity case and involving no claim for injunctive relief) is subject to immediate appeal. Refusing to confirm a bankruptcy plan is not meaningfully different.
The Court did not mean to suggest that there should never be a right of immediate review. It acknowledged that the debtor's alternatives to an immediate appeal--either to proceed with an amended plan or to suffer dismissal of the bankruptcy proceeding--are both often unpalatable. But the Court contented itself with the knowledge that in such circumstances, 28 U.S.C. § 1292(b) permits appeals from bankruptcy cases heard by district courts, and § 158(d)(2) permits appeals from bankruptcy matters heard by BAPs.
That contentment was misguided, because the statutory bases for interlocutory appeal depend on the acquiescence of the very court whose decision is being appealed. In Bullard itself, for example, the real problem was that the First Circuit should have been entitled to make that appellate-jurisdictional determination and apparently wanted to--but the BAP blocked it from doing so. Under § 158(d)(2), the First Circuit could have heard the appeal only if the BAP had first certified the issue as one involving: (a) a question of law on which there was no "controlling precedent"; (b) a question of law requiring "resolution of conflicting decisions"; or (c) an issue the resolution of which would "materially advance the progress of the case." The BAP refused such a certification "for reasons that are not entirely clear."
I have previously criticized the trial courts' gatekeeping function when it comes to interlocutory appeals of important issues. See Andrew S. Pollis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation 79 Fordham L. Rev. 1643, 1658-63 (2011); see also Andrew S. Pollis, Civil Rule 54(b): Seventy-Five and Ready for Retirement, 65 Fla. L. Rev. 711, 762 (2013). Bullard is just the latest example of that problem in action. While I have no quarrel with the Supreme Court's determination that the denial of a bankruptcy confirmation plan is not a final judgment always triggering the right of appellate review, I continue to call for reform so that important issues warranting immediate appeal do not continue to be sacrificial lambs at the indelible altar of trial-court (or, in this case, BAP) sovereignty.
Monday, May 11, 2015
What's Wrong with this Picture?
Thursday, May 07, 2015
Same-Sex Marriage: The (Ted) Kennedy Legacy
The odds-makers are generally in agreement that the deciding vote in Obergefell v. Hodges will be Justice Kennedy. While some have speculated that Chief Justice Roberts will find a way to join in a majority judgment (if not majority opinion) recognizing a Constitutional right to same-sex marriage, the more-prevalent view is that the liberal-conservative stalwarts on the Court will split 4-4 and that Kennedy will cast the decisive fifth vote one way or the other. If he sides with the proponents of same-sex marriage, the winners will have another Kennedy to thank, albeit posthumously, for that result: Senator Ted Kennedy.
The narrative goes like this:
In 1987, Justice Lewis Powell retired, leaving President Ronald Reagan his third Supreme Court vacancy to fill. (The first occurred when Potter Stewart retired, and President Reagan appointed Sandra Day O'Connor. The second occurred when Chief Justice Warren Burger retired, and President Reagan elevated William Rehnquist to the Chief Justice seat and appointed Antonin Scalia to fill the vacancy.) Reagan nominated Judge Robert Bork of the D.C. Circuit, leading to the infamous confirmation hearing that ended with a Senate vote rejecting Bork, 58-42.
Bork’s greatest and first nemesis in that nomination process was Senator Kennedy, who took to the Senate floor and urged that “Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”
Notably absent from that floor speech was any notion of rights for gays and lesbians. Remember, this was 1987. Bowers v. Hardwick, the 1986 case that permitted states to criminalize sexual conduct between members of the same sex, was fresh law (and remained on the books until 2002, when Justice Kennedy wrote the decision in Lawrence v. Texas that overturned it).
Kennedy's speech galvanized the Senate, and the nation. Vice-President Joe Biden, then a senator and chair of the Judiciary Committee, had his own field day during the committee hearings. I was a fresh-faced first-year law student, and the protests on my law-school campus made indelible impressions on me. When Bork was ultimately defeated, we knew we had won. We didn't quite know what we had won, but we knew we had won something.
President Reagan next nominated Douglas Ginsburg to fill Powell's spot, but Ginsburg withdrew after reports surfaced that he had used marijuana. (Remember, it was 1987.) So Reagan turned to Anthony Kennedy. And here we are today.
Bork died in 2012. Had he won confirmation and remained on the Court until his death, President Obama would have been in office at the time of the vacancy. Given the likelihood that Obama would have appointed a justice favorably disposed to same-sex-marriage rights, some might say that blocking the Bork nomination had no ultimate impact on this issue. But it’s important to remember that Obergefell did not materialize out of thin air. It comes following years of development of legal protections for gay, lesbian, and bisexual people: (1) the Kennedy opinion in Romer v. Evans, which in 1995 struck down a state constitutional provision banning anti-discrimination laws protecting gays, lesbians, and bisexuals; (2) the 2002 Kennedy opinion in Lawrence; and (3) the 2013 Kennedy opinion in United States v. Windsor, overturning a portion of the Defense of Marriage Act.
So some credit is due to Senator Kennedy, arguably responsible (at least in part) for the ultimate nomination of Justice Kennedy. And that Kennedy-Kennedy legacy may end up making a bigger mark on history when the Court announces the Obergefell decision at the end of June.
Monday, May 04, 2015
Mass Compensation After September 11
Thanks to everyone for having me this month. For those of you who don’t know me, I write about complex litigation, mass torts and administrative law. Lately, I've been writing a lot about the issues that come up when mass disputes appear in unusual places—like administrative adjudication and agency settlements, federal prosecution agreements, private corporations, and even, the Presidency.
Despite some personal experience with it, I haven’t written much about the mass litigation that followed September 11. (But see here). However, in the last few weeks, we've crossed two small milestones for thousands of recovery workers who claim they suffered toxic injuries at Ground Zero. The first was announced by Sheila Birnbaum, the administrator of the new September 11 Victim Compensation Fund, which Congress reopened to pay claims brought by first responders. After three years overseeing the Fund, Birnbaum announced that she had resolved $1 billion dollars worth of claims for over 4,400 first responders.
The second appeared in an order by Federal District Judge Hellerstein, who has overseen almost all the September 11-related lawsuits since 2002. After more than a decade of litigation, Judge Hellerstein's order noted the parties were in the "final stage" of settling recovery workers' claims in federal district court. In re World Trade Center Disaster Cite Litigation, 2015 WL 1262283 (S.D.N.Y. Mar 15, 2015). Judge Hellerstein’s opinion was just a small order among many. But it was related to a global $810 million settlement for recovery workers, brokered with the assistance of two other special masters (and established Tort scholars) James Henderson and Aaron Twersky.
As I suggest below, each settlement effort raises interesting questions about the best way to gather highly contested scientific evidence in a massive dispute. Public compensation schemes like the new September 11 Victim Compensation Fund can rely on innovative and experimental administrative law tools--like New York's unprecedented 71,000 member "health registry"--to collect massive amounts of new health information and flexibly adjust the way they compensate people over time. Settlements in court aren't as flexible, but aggregate litigation has other advantages. Technological innovations in complex litigation--like Judge Hellerstein's comprehensive, searchable electronic database of 10,000 WTC claims discussed below--can sometimes allow decisionmakers to see patterns and trade-offs that an administrative agency won't when it decides each case, one at a time.
Background of the WTC Litigation and the new September 11 Victim Compensation Fund
By way of background, immediately after September 11, New York City had to coordinate vast numbers of agencies, public health officials, uniformed officers, contractors and laypeople to clean up Ground Zero. According to one FDNY report “the complexity of the activity performed at one site—rescue, recovery, demolition, and construction—at one time" was simply unprecedented. (See New York City Fire Department. New York City Fire Department’s Deputy Assistant Chief Report No. 2003-P-000124).
The recovery effort was dangerous and hectic--firefighting in toxic fumes, urban search and rescue, removing and demolishing hazardous materials from what came to be known as the "pile." And while some of the earliest responders to the WTC attacks were trained FDNY and New York police officers, many other responders--like electricians, ironworkers, demolition contractors, and volunteers--had never been trained in, or even advised about, how to use proper personal protective equipment. Soon stories about unusual respiratory diseases, gastro-intenstinal illnesses and cancers among young recovery workers mounted. Over 11,000 claims were filed in federal court, centralized before Judge Hellerstein, and settled in December 2010. Congress also acted. In the waning days of 2010, it reopened the September 11 Fund and set aside $2.8 billion to compensate what it estimated to be over 30,000 eligible workers at Ground Zero, in just five years.
Both settlement systems share remarkable similarities. Both involve talented and experienced special masters, seeking to develop streamlined procedures to handle the same bewildering array of injuries in the aftermath of September 11. And from the beginning, each settlement effort faced the same enormous challenge: how to come up with a way to divide limited funds to accommodate thousands of claims, asserting over 380 different kinds of personal injuries, using novel scientific theories of causation? Despite their similarities, however, the Victim Compensation Fund and the WTC settlement relied on different tools to gather information and distribute funds.
The September 11 Fund and the WTC Health Registry
The September 11 Victim Compensation Fund relies on an innovative administrative scheme. It's decisions are informed by a decade-old "health registry," established shortly after September 11, that today monitors more than 70,000 people. To enroll, people completed a confidential baseline health survey in 2003. Each enrollee answered questions about where they were on September 11, their experiences and their health. This data not only allows health professionals to continue to compare the health of those directly exposed to the WTC disaster to the health of the general population, but it provides a nice way for the Fund to compensate difficult-to-confirm injuries based on the latest available science.
This is because, by statute, the National Institute for Occupational Safety and Health (NIOSH) at the CDC periodically canvasses studies informed by this database. 42 U.S.C. sec. 300mm–22(a)(5)(A). The Victim Compensation Fund, in turn, relies on NIOSH's review and recommendations to determine and update what categories of illness are eligible for compensation. This expert-driven process is commonly used by administrative agencies—like the FDA and EPA.
By contrast, because it was a court settlement, Judge Hellerstein originally approved an overarching deal based on the best scientific information he had in 2010. That presented what the court and his Special Masters called a "gut wrenching" problem for cases involving cancer. Because of the long latency periods between exposure and the onset of cancer, at the time, there wasn't much evidence linking toxic exposure near the World Trade Center to the cancers suffered by the plaintiffs. As a result, under the original settlement, some severe asthma claims stood to be compensated more than cancer claims. (The September 11 Victim Compensation Fund originally denied cancer claims, altogether. But it was able to change course and begin compensating victims with cancer based on new studies published in June 2012 (despite ongoing controversy in the scientific community.)
The registry has some drawbacks. First, it's under-inclusive--not everyone who is sick today had the foresight to sign up back in 2003. Second, the registry probably doesn't contain all of the information needed to draw comparisons between exposure and the onset of an illness (like whether the people in the registry were already at a higher risk of getting cancer because of family history or other risk factors). But the program nonetheless represents an amazing undertaking. With the exception of the "Ranch Hand" study, which has tracked vietnam veterans exposed to Agent Orange since 1978, the size and duration of this monitoring effort is almost without precedent. Today, the WTC Health Registry is the largest registry to track the health effects of a disaster in American history.
The WTC Litigation and the "Core Discovery" Database
The WTC litigation enjoyed a different informational advantage. Unlike the Fund, which would not know how to rank claimants' very different injuries or anticipate tough evidentiary problems until well into the claim process, private litigants were able to structure their settlement with information about everyone else’s claim in federal court. This was, in part, because of the Court’s unique “core discovery" order—one which gathered personal, occupational, medical, geographic and other detailed information about all of 11,000+ claims already filed in federal court.* Those claims were coded, and the results were entered into a searchable electronic database.
Although a central purpose of multi-district litigation** is to coordinate discovery just like this, the innovative use of technology, participation and searchable information in such a massive litigation was new and indispensable to the final settlement. Information gleaned from the database helped the parties select "test cases" and understand how the resolution of one case would impact other similar cases. Judge Hellerstein, James Henderson and Aaron Twersky later observed:
[T]he ability to perform Boolean searches covering thousands of plaintiff files allowed the Special Masters to determine interrelationships between and among responses. For example, not only could the age distributions of plaintiffs, the frequencies and severities of each type of disease, and the variety and frequency among plaintiffs’ pre-existing medical conditions be determined; but it was possible to identify correlations between the ages of plaintiffs and the severities of injuries suffered and whether the length of the plaintiffs’ exposure to the WTC site increased the severity of injury. Thus, by adding or subtracting from the criteria reflected in the various fields one could discern which factors strongly correlated with the severity of injury and which factors had a lesser impact, or no impact at all.
The VCF cannot rely on such a database, upfront--claims come in one at a time. And while the "health registry" helps assess general relationships between exposure and disease, it does not collect the kind of detailed information about people available in court-ordered discovery, nor does it include everyone eligible to apply to the Fund). To be sure, the Fund has other ways to collect information about all claimants. First, claimants only receive 10% of their awards upfront. Claimants then must wait until 2017, after everyone has filed, before they can collect the remainder of their awards. In some ways, this unique feature of the VCF gives its decisionmakers some flexibility to adjust awards depending on the number and nature of all other known claims.
Second, the VCF has made Herculean efforts to reach out to other institutions--like New York City, employers, other general contractors, and victims groups--to obtain information about prospective claims. Not only can the VCF process claims faster with that information, but such coordination allows the fund to see and learn more about its claimants before they file with the VCF. (And indeed this seems to be working, after a slow start, the fund now appears to be adjudicating cases faster then ever).
Over the past 15 years, the Supreme Court has significantly limited the ability of courts to certify class actions in mass tort cases. The fear is that conflicts of interests and individual issues will overwhelm any attempt at meaningful adjudication. Some have suggested that the Supreme Court's jurisprudence in this area follows Lon Fuller's classical account of adjudication. Fearing that any attempt to comprehensively hear complex, multiparty actions will lead to coercive court-house dealmaking -- what Fuller labeled "polycentric" disputes that were best solved through negotiation and management -- the Supreme Court has insisted that such issues are better resolved through legislation, administrative schemes and public law. See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999) (reversing complex settlement that “defies customary judicial administration and calls for national legislation”); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 598 (1997) (quoting Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation 42 (Mar. 1991).
To that end, the new September 11 Victim Compensation Fund represents just such an effort. Congress created an administrative agency to determine eligibility standards, evaluate claims and distribute funds for each recovery worker at Ground Zero. Based on an expansive study of New Yorkers in the wake of September 11, that agency, in turn, could update its process by consulting the country’s leading facility for the study of WTC-related disease. But like many public funds of its kind, the September 11 Victim Compensation Fund won't know who will decide to participate or the unique evidence require to establish some difficult claims until far into the application process.
Judicial decisions cannot be as flexible as adminstrative decisions, and I don't want to suggest that courts predict claim filings well. (Parties to mass settlements can have a lot of trouble predicting the future.) But innovations in technology and judicial case management have allowed parties in court to know a great deal about the entire universe of pending claims and how to appropriately compensate them. Judge Hellerstein, with the assistance of two established tort scholars and the parties, generated a database of over 10,000 claimants with over 360 categories of injury.
In some ways, this technological fix is simply a natural extension of what all multidistrict litigation tries to do--allowing a single judge to coordinate discovery and categorize common groups of claims for resolution. But such strategies also offer a possible response to Fuller's view about the futility of adjudicating "polycentric" disputes--where the number of interested parties is so large, and the ramifications so vast, that it is impossible for each person affected by the decision to offer proofs and reasoned arguments. By adopting a unique and expansive form of data collection, Judge Hellerstein has introduced a modest way for courts to help parties chart the number, nature and interrelationship of claims for an otherwise, seemingly intractable dispute.
*Such information included the plaintiffs’ pedigree, medical history, tobacco use, alleged injuries, medical tests, diagnoses, symptoms, treatments, workers’ compensation recoveries, hours worked, location of work, safety equipment worn, and training received.
**Technically, all cases were consolidated before Judge Hellerstein under the Air Transportation Safety and System Stabilization Act. The same act that created the original September 11 Victim Compensation Fund also gave the United States District Court for the Southern District of New York exclusive jurisdiction over all claims "arising from, or related to," the terrorist-related aircraft crashes of September 11, 2001
Friday, April 03, 2015
Short, last post to highlight a disturbing Fourth Circuit case that illustrates how much excessive police invasion and violence our system is willing to tolerate (even when it means disturbing a jury verdict). In Kane v. Lewis, the Fourth Circuit overturned an award of $250,000 to the father of a young Maryland man who was shot by a SWAT team. Yes, the man came out of his room with a knife (found sheathed on the body later). One plausible explanation for that? SWAT conducted a middle-of-the-night raid of his apartment, with no "knock and announce." What basis for the subpoena that led six SWAT officers to break down his door? Trace amounts of marijuana found in his trash. The search led to more (but not much more) of the same.
And, with that uplifting conclusion to my PrawfsBlawg stint, I'd like to thank Howard for the opportunity to join the Prawfs community and all those who contribute to the site for their posts.
Thursday, March 05, 2015
SCOTUS's incoherent media policies
I am on record (here and elsewhere) favoring video-recording of SCOTUS arguments. It follows that I view its current policy--same-day transcript, same-week audio, no-week video, same-day audio for certain important cases if the Justice so deign it--as a lesser approach. But even accepting the current scheme, I cannot understand the inconsistency as to what or how the Court defines as an important case meriting same-day audio. This week's arguments in King were not sufficiently important, even though the future operation of the Affordable Care Act might be at stake (at least in Red states), but next month's arguments in the same-sex marriage cases are important enough to merit audio by 2 p.m. that day.
Note that I am not complaining about the Court's move on the SSM case. I am just struck by the seeming randomness and incoherence in its definition of importance.
Tuesday, March 03, 2015
Alabama Supreme Court Enjoins Probate Judges from Issuing Marriage Licenses to Same-Sex Couples
As you may know (Howard has had some excellent coverage), we’re in the midst of a real-life fed-courts hypo here in Alabama as litigation continues over the state’s ban on same-sex marriage. There was another development this evening, when the Alabama Supreme Court issued a 134-page per curiam opinion enjoining Alabama probate judges from issuing marriage licenses to same-sex couples.
The ruling was prompted by a petition for a writ of mandamus that was filed earlier this month by two groups opposing same-sex marriage, purporting to be “relators” for the State of Alabama. The petition named four probate judges who had been issuing same-sex marriage licenses as respondents, and designated all other Alabama probate judges as “Judge Does ##1-63.” One of those Doe judges, Judge Enslen of Elmore County, sought to have the Alabama ban enforced and was redesignated as an additional relator-petitioner.
This evening’s order acknowledges that one Alabama probate judge—Judge Davis of Mobile County—is the subject of a federal injunction issued by Judge Callie Granade, who back in January had declared Alabama’s ban unconstitutional.
Here’s the full text of the order that appears at the end of today’s Alabama Supreme Court opinion:
The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator's petition for the writ of mandamus and showing cause, if any, why said probate judge should not be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion. As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
If you want to get up to speed on what’s been going on, you can find copies of all the important orders, filings, and other documents at the Civil Procedure & Federal Courts Blog.
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.
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.
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.
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.
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.
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)
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.
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.
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.
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:
The above is cross-posted from Re's Judicata.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Tuesday, May 20, 2014
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.
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).
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?
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.
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 Merjian, An 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).