Thursday, June 18, 2015
Gender and Legal Scholarship
In the spring, I had the pleasure of participating in a roundtable on Increasing Author Diversity in Legal Scholarship: Individual and Institutional Strategies, which was sponsored by the University of Maryland School of Law and the Maryland Law Review. The roundtable explored a number of topics, including how law students are selected for journal membership, and how those students select articles to publish in their journals. We spent considerable time discussing Of Authorship and Audacity: An Empirical Study of Gender Disparity and Privilege in the "Top Ten" Law Reviews, in which Minna Kotkin found that only 20% of articles in top law journals were written by women even though women make up 31% of the tenured/tenure-track faculty at law schools across the country. Kotkin's article received attention in the blogosphere, here and here, when she first posted a draft back in 2009.
Chris Cotropia (Richmond) and Lee Petherbridge (Loyola--LA) have written a more recent article, Gender Disparity in Law Review Citation Rates, that raises some interesting questions. Cotropia and Petherbridge studied the impact of gender on citation rates for articles published in top 100 law journals between 1990 and 2010. Cotropia and Petherbridge were surprised to find that, unlike in other disciplines, law review articles written by women are cited more than those written by men. While there has been some discussion of the authors' methodology, I'd like to focus on the question they pose toward the end of the article: why?
Cotropia and Petherbridge indicate that an explanation would require further research, but wonder whether legal scholars are less inclined to bias citation by gender, or perhaps women legal scholars are more likely to cite themselves than women in other fields. Naomi Cahn (George Washington), who also participated in the roundtable, said that one possible explanation is that women's articles are simply better than men's. Or maybe female-authored articles are more memorable--and thus more likely to be cited--because they are so much rarer than articles written by men. Indeed, of the 19,259 articles in Cotropia and Petherbridge's study, only 5,189 of them were written by women (4,123 were solo-authored by women; 1,066 were co-authored and included at least one female author).
In a world of overworked judges, tight budgets, and crowded dockets--or "process scarcity"--do some people deserve to participate in hearings more than others? According to Matthew Lawrence's provocative and thoughtful new article Procedural Triage, 84 Fordham L. Rev. (forthcoming 2015), the answer to that question is "yes."
One dominant idea in American procedure is that every person deserves a "day in court" before the state can impose a particularized, binding judgment on that person. We compromise that goal sometimes--skimping on some procedures, while providing at least "some kind of hearing." But when we do so, we usually treat every claimant alike. Procedural Triage argues that we shouldn't. This is because, in some cases, individuals derive more personal benefit from a full hearing than would-be corporate claimants--particularly in backlogged courts that simultaneously serve both large numbers of unsophisticated, aggrieved claimants and very sophisticated business interests. Lawrence observes:
For example, in Medicare, an individualized hearing to reconsider a denial of coverage for a motorized wheelchair has significant inherent value when it gives the satisfaction of having been heard to a frustrated beneficiary, win or lose. But it has much less inherent value, if any, when provided to a wheelchair manufacturer that routinely appeals hundreds of denied claims each year simply in order to maximize revenue. Yet provider appeals make up 87% of Medicare’s appeals workload.
Accordingly, Procedural Triage recommends that court systems give different plaintiffs the option (or in extreme cases, a mandate) to go down different procedural roads: full blown hearings for some and something-short-of-that for others. In so doing, Lawrence highlights Medicare's new "trial by statistics" program as a case study. Under this system--which I describe here--medical contractors, hospitals and other businesses with large numbers of identical Medicare claims may try those cases using statistical tools, while individuals retain their right to a full and expedited "day in court." Lawrence argues that this kind of "procedural triage" may enhance, rather than undermine, due process values for the entire system.
Brumfield v. Cain: Tinkering with the Intellectual Competence for Death
This morning, the Supreme Court decided Brumfield v. Cain, a Louisiana case that raised the question how to determine intellectual disability for death penalty purposes.
The facts are as follows: In 1993, Brumfield murdered off-duty police officer Betty Smothers. The crime, as recounted in Justice Thomas' dissent, was a random, heartless shooting into a car in the process of a "hustle", and can only be explained by Brumfield's antisocial personality--he showed no remorse for it. Moreover, it was the culmination of a horrific two-week-long crime spree.
At the time of Brumfield's trial, there were no constitutional limitations on executing mentally disabled inmates. At the sentencing phase of Brumfield's trial, the Baton Rouge court heard mitigating evidence on Brumfield's behalf: his mom, a social worker who compiled his personal history; and a neuropsychologist who examined him. The court psychologist examined him as well, but did not testify. The evidence, at the time, demonstrated that Brumfield had registered an IQ score of 75, had a fourth-grade reading level, had been prescribed numerous medications and treated at psychiatric hospitals as a child, had been identified as having some form of learning disability, and had been placed in special education classes.
Davis v. Ayala: Post-conviction review of Batson, Harmless Error, and a Surprising Dignity Opinion from Justice Kennedy
[cross-posted at California Correctional Crisis]
The Sixth Amendment requires that defendants be tried by a jury of their peers; this raises serious questions when partisan interests bring racial considerations into the choice. Batson v. Kentucky, decided by the Supreme Court in 1986, limited the ability to use peremptory challenges (which allow each party to disqualify jurors without providing an explanation) when the pattern of challenges indicates racial (or, as later decided, gender) bias. The procedure under Batson requires three steps: the other party (typically the defense) points to a systematic pattern of racial exclusion; the excluding party (typically the prosecution) provides race-neutral explanations for the exclusion; and the court decides, based on totality of the circumstances, whether the challenges can stand.
Shortly after Batson, in 1989, Hector Ayala was convicted of a triple murder in the context of a robbery in San Diego. At the voir dire stage of his capital punishment trial, his attorney objected three times to repeated use of peremptory challenges by the prosecution against black and latino prospective jurors. Each time, the prosecution asked that the defense leave the room, arguing that they didn't want to expose trial tactics to the defense. Their actual race-neutral explanations for the peremptory challenges were concerns about criminal record, concerns about unwillingness to apply the death penalty, and personal history in following and being involved in controversial trials. The judge agreed to let the peremptory challenges stand. Ayala was convicted and sentenced to death.
Today, the Supreme Court decided Davis v. Ayala, siding 5:4 against Ayala.
SCOTUS Decides the Confederate Plates Case (5-4)
The US Supreme Court today held that the Texas Department of Motor Vehicles did not violate the First Amendment when it rejected a proposed license plate featuring the confederate battle flag. The majority opinion, authored by Justice Breyer and joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan, reached this conclusion by deploying the relatively newly minted government speech doctrine to allow Texas to pick and choose what messages its drivers can display on their specialty license plates based on whether others might find those messages offensive. Justices Roberts, Scalia, Alito, and Kennedy dissented.
Like many other states, Texas has a specialty license plate program through which it raises funds by allowing a variety of groups to create specialty plates. Justice Breyer's majority opinion notes, for example, that Texas has approved plates "featuring the words 'The Gator Nation,' together with the Florida Gators logo." [As a UF professor, I appreciate the SCOTUS shout-out!] Justice Breyer also notes that Texas has approved plates with slogans offered by private companies, such as "Get it Sold with RE/MAX." Writing for the majority, Justice Breyer nonetheless concludes that these messages are government speech, branded with the "imprimatur" of Texas.
The case began in 2009, when the Sons of Confederate Veterans (SCV) first submitted to Texas a plate with their name, their organizational logo, and the Confederate battle flag. After public comment and an open meeting to consider the plate, the Texas Department of Motor Vehicles Board rejected the plate on the grounds that "many members of the general public find the design offensive." The Board further deemed such comments by the public to be "reasonable." (emphasis mine) [Cf. Snyder v. Phelps!] The SCV sought an injunction to force the Board to approve the plate on the ground that the denial violated the First Amendment. A federal district court entered judgment for the Board, but a panel of the US Court of Appeals for the Fifth Circuit reversed, holding that the Board's viewpoint discrimination against the SCV plate was unconstitutional.
Today, the Supreme Court held that Texas is the speaker when it chooses the contents of specialty license plates. In other words, the contents of the specialty plates are government speech, and Texas is therefore free to engage in viewpoint discrimination in choosing which plates to approve, subject to the constraints of the "democratic electoral process." The majority posited that the "government would not work" were it not free to convey its messages in the way it sees fit: "as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out duties on their behalf."
A reasonable observer could be forgiven for assuming that a Texas plate that favors The Gator Nation represents the views of the driver of the automobile rather than the views of the State of Texas. But the Court concluded that the plate messages are government speech based on the following. First, license plates historically have been used to convey state messages. "Second, Texas license plate designs 'are often closely identified in the public mind with the [State]." [The majority's process of discerning the "public mind' is a little unclear.] Third, Texas controls messages on its license plates by requiring Board approval of every plate design, a process which grants "final approval authority [that] allows Texas to choose how to present itself and its constituency."
The Court further concluded that license plates do not constitute forums for the speech of private individuals (such as the drivers who choose the plates). The Court emphasized that license plates, unlike public parks, are not traditional public forums [but then again neither are teacher mailboxes, as in Perry Education Ass'n]. More controversially, the Court asserted that the license plates are not designated public forums because the policies and practices of the state of Texas manifest its intent to maintain control of them. The opinion placed great weight on the fact that Texas has "final authority" to approve content, and it also emphasized the traditional role of license plates as "primarily . . . a form of government ID [that] bear[s] the State's name." In doing so, the opinion seems to ignore the conversion of the "traditional" license plate system into a revenue-raising scheme for the state.
Finally, the majority rejected the notion that the plates are a non-public forum that can be used by private speakers, reasoning that the plates are predominantly used by Texas for its own "expressive conduct." As the opinion states, "we reach this conclusion based on the historical context, observers' reasonable interpretation of the messages conveyed by Texas specialty plates, and the effective control that the State exerts over the design selection process."
This 5-4 decision highlights a flaw in First Amendment doctrine that I've previously discussed in an article on public forum doctrine and government speech in social media. That flaw is that current doctrine "does not contemplate the possibility that [a forum for speech] might involve both government speech and a public forum." Supreme Court precedent left the majority with a Boolean choice: either the plates were a public forum or they were government speech. If the plates were a public forum, Texas's rejection of any imaginable plates on the grounds of offensiveness would constitute content-based and viewpoint-based discrimination in violation of the First Amendment. The result would be that Texas, and perhaps most states, would eliminate specialty license plate programs even if it meant giving up the extra revenues they bring. [Not that this result would be so terrible.] On the other hand, if the plates were deemed government speech, Texas could maintain the program while blocking the most objectionable types of plates. Reality, however, is more complicated than current free speech doctrine. The reality is that Texas specialty plates contain both government speech and private speech on one small square of metal. This case just points out the absurdity of having to choose inflexible doctrinal categories to get to a desired outcome.
Justice Alito's dissent rightly observed that the case sets a dangerous precedent, allowing the government to regulate any offensive speech on government property simply by retaining final approval authority over that speech. Justice Alito refocused the historical analysis of licenses plates on the point AFTER the development of specialty plate programs, concluding that "history here does not suggest that the messages at issue are government speech." He also examined how the Texas license plate approval process actually worked: Texas accepts all private messages submitted "except those, like the SCV plate, that would offend some who viewed them." The mere fact that Texas has given its "blessing" to the private speech on most plates does not make those plates government speech. Instead, "Texas, in effect, sells [license plate] space to those who wish to use it to express a personal message," and by doing so, creates a limited public forum. Texas' decision to reject the SCV plate, or indeed to reject any plate on grounds of offensiveness, was therefore unconstitutional viewpoint discrimination.
When One Case Becomes About Another: Kerry v. Din and the Same-Sex Marriage Litigation
ImmigrationProf Blog is hosting an interesting symposium on Kerry v. Din, a case about judicial review of visa denials. The government denied a visa to a U.S. citizen's husband for reasons that remain obscure but have something to do with the government's claim he participated in terrorist activities. The U.S. citizen sued to force the government to be more specific. In Din, a fractured Court held that the government didn't need to be. I'm particularly interested in Rachel Rosenbloom's contribution to the symposium, which, citing Kevin Johnson's recent SCOTUSblog post, explains that the case "ended up mostly being a forum for the justices to argue about the scope of due process protections related to marriage." Given the "Court's current preoccupation with the question of same-sex marriage," the Court's treatment of Din isn't surprising. But should it be troubling?
I'm not sure, but I think the question's an interesting one. Rosenbloom, who focuses upon Justice Breyer's dissenting opinion in Din, writes, "It would be a shame if Justice Breyer's heavy reliance on marriage," which Justice Scalia's plurality opinion shared, "exerts too strong a force on the future litigation of consular review cases." And so I wonder whether the Justices may have warped the doctrine in consular review cases by thinking about Din through the lens of the same-sex marriage litigation in Obergefell v. Hodges.
It's not hard to rattle off reasons we'd want the Supreme Court to think about Obergefell when deciding Din. If nothing else, it makes forecasting more fun. (See, for example, Mark Joseph Stern's piece in Slate and Garrett Epps's piece for The Atlantic.) Still, I can't shake the sense that there are real risks when one case becomes about another. If I were Fauzia Din, I'd wonder whether I really got my day in court. And if I were an immigration lawyer, I'd be frustrated with the Court's mangling (or, you might think, simply not answering) the question of consular non-reviewability before it. Given the Court's law declaration function, it's probably inevitable that a controversial and high profile case like Obergefell will influence how the Justices think about other cases that seem unrelated. But given the Court's law declaration function, we might hope for judicial resistance to the impulse to debate in one case what the law's going to be in another.
First Amendment Day at SCOTUS
SCOTUS on Thursday decided the final free speech cases of the Term.
In Walker, the Court held that the messages on specialty license plates constitute government speech rather than private speech is a government-created public forum. The Court split 5-4; Breyer wrote for Thomas, Ginsburg, Sotomayor, and Kagan, while Alito dissented joined by the Chief, Scalia, and Kennedy.
When this issue first began bubbling up in the '90s, my quick conclusion (even before Summum, the case at the heart of the dispute between the majority and the dissent) was that specialty plates were government speech. Governments used these plates for their own messages ("Live Free or Die" "Famous Potatoes" "The Lone Star State") and the specialty-plate programs simply expanded the range of message government would adopt and present as its own.* And a viewer can understand that a driver with one of those plates agrees with that message.
[*] By contrast, I believed--and still do--that alpha-numeric codes used in vanity plates constitute individual speech in a limited public forum that should be subjected to closer First Amendment scrutiny.
But Alito's dissenting opinion was quite convincing, particularly in that it was an excellent and very accessible read. I was particularly moved by the two hypotheticals he presented--1) an electronic highway billboard containing some government messages, but on which government opens space for private speakers to rent space for their own messages and 2) a public-university campus bulletin board or listserv which includes some government messages and is open to private messages. Alito's point is that, under the majority's analysis, these speech locations could as easily be called government speech and government "adoption" of certain paid-for private messages.
Oklahoma’s Latest Invention: Execution by Nitrogen Gas
In 1977, Oklahoma started a national trend when it adopted lethal injection as a new method of execution. This year, maybe it will do the same in adopting death by “nitrogen hypoxia” as a statutorily authorized alternative to lethal injection.
Oklahoma Governor Mary Fallon said she signed the bill to give the state “another death penalty option,” and if there’s one thing the state of Oklahoma likes about its death penalty (besides secrecy), it’s options. Whereas most death penalty states have one lethal injection protocol, maybe two, Oklahoma has five. And whereas most states have one method of execution, maybe two, Oklahoma has four. If for some reason lethal injection and nitrogen gas don’t work out, the state has the electric chair and firing squad also waiting in the wings. Little wonder Oklahoma has in the last several years edged out Virginia as the second most executing state since the revival of the death penalty in 1976—it’s nothing if not committed to the death penalty.
Oklahoma’s statute doesn’t say exactly how death by nitrogen hypoxia will be carried out, and it’s brand new so we’re all just guessing here, but the assumption appears to be that some sort of mask would be affixed to the condemned inmate’s head, which would then be used to pump in pure nitrogen. Nitrogen is already in the air we breathe so it’s not inherently toxic; it’s the lack of oxygen that does a person in, and that’s apparently painless. “You just sit there and a few minutes later, you’re dead,” the bill’s sponsor said. Rather than imposing death, nitrogen hypoxia “withholds life.” Sounds kinda brilliant when you put it that way.
But there’s always a hitch. Execution by nitrogen hypoxia is a one-off of Jack Kevorkian’s “exit bags” and similar techniques advocated by right-to-die advocacy groups. The problem is that its only use has been on people who wanted to die, so they weren’t trying to break the seal, or refusing to breathe, or doing whatever else one might do to gum up the works. “It requires the total cooperation of the person who is dying,” one euthanasia spokesman said of the process.
The other difference—and maybe this doesn’t matter—is that those groups use helium rather than nitrogen to get the job done, and that was off the table from the start. Indeed, even with nitrogen as the designated gas, some legislators worried that death by hypoxia would be accompanied by a brief moment of euphoria rather than pain.
In the end, we really don’t know how all this will work out, which I suppose is the case with most any innovation in execution methods. “I assume somebody must have done some research,” one state senator said—and that’s true, to an extent.
What data we have on forced inhalation of pure nitrogen comes from veterinary science, and in that experiment, the cats and dogs howled and convulsed. The American Veterinary Medical Association has taken the position that nitrogen asphyxiation is not appropriate for animal euthanasia, but that doesn’t seem to matter much. The AVMA has said the same thing about using paralytics during animal euthanasia by lethal injection, and we’ve done that to humans for decades.
All that brings me back to what the Oklahoma legislator who wrote the bill said about nitrogen hypoxia—“It’s foolproof.” I say maybe it will work, maybe it won’t. But if we think know the answer to that on the front side, we’re fooling ourselves.
Wednesday, June 17, 2015
Strange Bedfellows #7: Liberty Lists
This post is part of the Strange Bedfellows series.
To enumerate rights or not to enumerate them? Federalist Noah Webster, arguing against the need to include a Bill of Rights in the proposed constitution, asserted that a person sleeping on his right side has a natural law right to roll over and sleep on his left side, but we aren’t going to write such minutiae into the Constitution. Moreover, if that right was constitutionally enumerated, it would imply that those not enumerated—say, the right to wear a hat—were not protected. The latter problem was supposed to be put to bed by the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) Enumerate away!
The story’s not quite that simple, as the disagreement between plurality and dissent in this week’s Kerry v. Din shows. But as a teaching tool, it can be useful to compare and contrast the decision to enumerate rights in the constitution with the decision to enumerate rights in court opinions. In a selection of cases, the Supreme Court has sought to provide sample enumerations of unenumerated rights as a way of indicating the scope of American freedom. These "liberty lists" have arisen most prominently in the 20th and 21st centuries with regard to the Due Process Clause, but decisions from before the ratification of the Fourteenth Amendment offered other lists that were claimed to flow from the Privileges And Immunities Clause of Art. IV and the structural meaning of citizenship itself.
Issues worth studying when comparing these various liberty lists are how their contents have (or have not) changed over time; when they are used as opposed to when they are not; and whether the amount of detail in the list correlates to a win for the individual claiming an unenumerated liberty. The punch line at the end of a capacious list is most often “We protect a huge range of liberties, including yours” (as in Meyer v. Nebraska) but it can also be “We protect a huge range of liberties, but not yours” (as in Board of Regents v. Roth).
If Not Lethal Injection, Then What?
With lethal injection on its heels (as a practical matter, maybe constitutional matter too), one question that’s on many a mind is—if not lethal injection, then what?
The electric chair is pretty gruesome—you’re stuck with the sound and smell of burning flesh and it occasionally catches the condemned person’s head on fire.
Hanging is pretty hard to get right—it’s supposed to kill by breaking the condemned person’s neck, but if the measurements are off (which is often the case), the person ends up either slowly strangling to death or getting decapitated.
And the gas chamber is reminiscent of Nazi death camps and pretty grisly in its own right—the cyanide pumped into the chamber causes the condemned to die by asphyxiation, but not before a significant amount of gasping, drooling, and retching first. Arizona got rid of its gas chamber in 1992 when an execution made the state attorney general vomit and the warden threaten to resign if he ever had to use it again. In 1999, the Ninth Circuit declared it a violation of the Eighth Amendment’s “cruel and unusual punishments” clause.
That leaves the guillotine (not a chance), the firing squad, and Oklahoma’s newest innovation: death by nitrogen gas. Today I’ll consider the firing squad. Tomorrow, nitrogen gas.
Terrific Piece on Identitarianism by Adolph Reed
I have been thinking for a few days on a proper response to the Dolezal/Jenner brouhaha that would capture my dismay at the enthusiasm of my friends in the left for eating their own via identitarian distinctions that made no logical sense. And look, Adolph Reed wrote it up way better than I could have. Enjoy.
Marriage Equality -- and Marriage Abolitionism
I have an op-ed in today's LA Times on the forthcoming marriage equality decision -- and how some states' efforts to disestablish marriage as a result could be a welcome development. Massive resistance could be ironically progressive.
Tuesday, June 16, 2015
The Chevron Shuffle and Legislative History
This post's about a puzzling opinion from the D.C. Circuit. The puzzle has to do with the Chevron two step and legislative history. This puzzle's important, and not just for King v. Burwell.
In Council for Urological Interests v. Burwell (CUI), published last week and available here, the D.C. Circuit shuffled between one view and another of legislative history's role in the Chevron analysis. On the first step, the court of appeals held that a Conference Report didn't foreclose an agency's rule. On the second step, however, the court held the same Conference Report required a remand of the rulemaking. (For those unfamiliar with the Chevron two step, check out this discussion or this much more entertaining video.) The flaw, the court held, was not in the agency's reading of the statute's text but rather in its "tortured reading" of the Conference Report. There's something in the case for everyone who has debated whether Chevron has one step or two and what role, if any, legislative history should play in those steps.
Veep does the Constitution
Veep is a hilarious show, described by one former Obama adviser as the most accurate depiction of Washington and definitely the most hilariously profane (reflecting the sensibilities of creator, and departing showrunner, Armando Iannucci). The season finale, which aired on Sunday, takes place on Election Night and ends on a constitutional cliffhanger related to presidential elections and presidential succession, a common theme for political TV shows.
More (with spoilers) after the jump.
Is Criticism of Lethal Injection Just a Front For Opposing the Death Penalty?
I had planned to follow last week’s post on lethal injection with a post about the firing squad as a method of execution. But I’m saving that for tomorrow in light of the numerous emails and conversations that have come my way about the relationship between one’s position on lethal injection and one’s position on the death penalty itself. Is criticism of lethal injection just a front for criticizing the death penalty?
My own experience over the past week suggests that most people think the answer is yes—if you have a problem with lethal injection, it’s because you must have a problem with capital punishment, so let’s be real about where the façade actually lies.
But the two don’t necessarily, or even logically, go together. There are plenty of people who support the death penalty on retributivist grounds (indeed, retribution is by far the most popular reason people support the death penalty today) who have a problem with lethal injection for the very reasons I mentioned in last week’s post. Law Professor Robert Blecker, an outspoken retributivist, is a prime example. Here’s what he had to say:
Lethal injection conflates punishment with medicine. The condemned dies in a gurney, wrapped in white sheets with an IV in his veins, surrounded by his closest kin, monitored by sophisticated medical devices. Haphazardly conceived and hastily designed, lethal injection appears, feels, and seems medical, although its sole purpose is to kill.
Witnessing an execution in Florida, I shuddered. It felt too much like a hospital or hospice. We almost never look to medicine to tell us whom to execute. Medicine should no more tell us how. How we kill those we rightly detest should in no way resemble how we end the suffering of those we love.
Monday, June 15, 2015
Strange Bedfellows #6: Streams of Commerce
This post is part of the Strange Bedfellows series.
Those of us who also teach Civil Procedure are familiar with the “stream of commerce” concept within the constitutional law of personal jurisdiction. Under circumstances that the Supreme Court has notoriously failed to make clear, an entity that manufactures and sells a product in one state may be subject to personal jurisdiction to the courts of another if the product causes injury after traveling there through “the stream of commerce.” Less well remembered is that the “stream of commerce” once had a significant role to play in the law of the Commerce Clause.
These two streams of commerce are taught under different pedagogical silos, but may have something to say to each other.
Are Administrative Law Judges Unconstitutional?
According to this decision last week, the answer may be “yes”—at least for administrative law judges who decide cases for the SEC. That is because a federal judge in Atlanta found that ALJs are “inferior officers” under the Constitution, who under Article II, must be appointed by the President, the Judiciary, or "heads of departments." (SEC ALJs are instead appointed by a chief ALJ).
As Kent Barnett argued last week, and whose excellent paper on the subject is cited in the opinion, there’s an easy fix for the SEC because the SEC is already considered a “department” and has authority to appoint ALJs itself. But the opinion raises new concerns for other ALJs in the administrative state, who together hear over 250,000 cases a year. That’s because many agencies are not freestanding departments--like the Consumer Financial Protection Bureau, which operates inside of the Federal Reserve. Two more thoughts after the jump.
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.
Why Indeed?: A Few Words in Favor of Per Curiams
At the CoOp blog, Gerard Magliocca has an interesting post, with even more interesting comments, on the use of per curiam opinions by lower courts. I am not terribly interested in the occasion that drove it: a per curiam opinion of the Fifth Circuit upholding Texas abortion regulations. The case is substantively important, of course. But the concerns evoked by the issuance of the opinion per curiam--in effect, how do we know how to blame for such an important opinion?--are, like recent concerns about the possibility that the Supreme Court might hear appeals from three-judge district courts that are actually composed of conservatives, arguably too driven by present concerns and thus too subject to inconsistencies and short-term thinking. Still, I think this is an instance in which a discussion evoked by transient political matters eventually ends up raising more interesting, and perhaps more deeply political, questions than it was intended to. The question is raises for me is this: Why shouldn't all panel decisions, except for those few in which no one else joins the opinion itself, be per curiam?
In his post, Gerard asks bluntly "whether per curiam decisions should still exist," arguing that "[w]e deserve to know who wrote a published opinion" and that, except in cases of true shared authorship, the per curiam opinion is the product of "fear [of] public scrutiny and accountability."
In the comments, Orin Kerr, in that way he has, asked of the statement that we deserve to know who wrote a published opinion, "Why?" The responses were to be expected and had to do with transparency and accountability. In particular, for present purposes, Magliocca argued that it is sometimes helpful to know who wrote a particular opinion, and--probably the major motivating factor for most general discussions of this kind--that "knowing authorship matters when a circuit judge is nominated to the Supreme Court." He received interesting pushback--including a comment by regular Prawfs commenter "Joe," who wrote, as I will here, "Query the reasoning in having the author's name there at all. It is not really obligatory when you think about it." Finally, Magliocca ended the thread with what felt distinctly like an expostulation: "If knowing authorship of majority opinions is unhelpful or unnecessary, then why ever say who the author is?"
Why indeed? Why not insist, or prefer, that American federal appellate court majority opinions be per curiam as a general rule? Magliocca seems to take it as obvious that the present practice of generally signing such opinions is correct and that we would be worse off if the practice changed. I'm not so sure about that. I wonder whether a more systemic cost-benefit analysis does not favor moving to a practice where appellate court opinion authorship is generally not noted.
Another Supreme Court Signal: Hittson v. Chatman
Today’s orders list provided an especially clear instance of an attempted Supreme Court signal. In Hittson v. Chatman, Justice Ginsburg, joined by Justice Kagan, concurred in the Court’s denial of certiorari in a habeas matter. In effect, Ginsburg told the Eleventh Circuit how to rule in a pending case. But as with many other potential signals, Ginsburg's message should perhaps be taken with a grain of salt.
First Annual Civil Procedure Workshop
The First Annual Civil Procedure Workshop, jointly hosted by Seattle University School of Law, the University of Washington School of Law, and the University of Arizona Rogers College of Law, will take place July 16-17 at Seattle University. Details can be found in the link; it sounds like a great program. Contact Brooke Coleman (firstname.lastname@example.org) with any questions.
Joseph Vining on the thought of John Noonan
Joseph Vining has posted (here) a short paper called "Reading John Noonan," which is forthcoming in the Villanova Law Review. The abstract is short-and-sweet:
John Noonan is a giant in American law and legal practice -- a distinguished legal historian and a true judge. His reflections on the nature of law have a special importance. This essay is a comment on basic elements in his thought.
And, check out the keywords:
jurisprudence, slavery, universality of value, development and change, morality, history, person, legal person, individual, equity practice, human rights, utilitarianism, positivism, humanism
Sunday, June 14, 2015
Is Heller Being Narrowed From Below?
Last week, Justice Thomas dissented from the Court’s denial of certiorari in the Second Amendment case Jackson v. San Francisco. Joined only by Justice Scalia, Thomas argued that San Francisco had adopted a firearm regulation substantially identical to the one struck down in Heller v. District of Columbia. The most interesting feature of the case was Thomas’s allegation that the decision below is an example of a much broader pattern. According to Thomas, “lower courts, including the ones here, have failed to protect” the right to bear arms and so have drained Heller of practical effect. If Thomas is right, then Jackson provides an important example of what I’ve called “narrowing from below”—that is, of lower courts narrowing higher-court precedent.
“Generative Avoidance” and King v. Burwell - Guest Post by Mila Sohoni
Somewhat improbably, the topic of avoidance of novel constitutional questions seems to be in the air once again! Neal Kumar Katyal and Thomas Schmidt just published an article in the Harvard Law Review criticizing the Roberts Court for, among other things, using the constitutional avoidance canon to articulate new constitutional norms, a use of the canon that they call “generative avoidance” (p. 2112). In an essay in response, Caleb Nelson argues that “the canon about avoiding unconstitutionality should focus on the constitutional doctrines that were familiar when the relevant statute was enacted” (p. 339). If courts applied the “classical” version of the canon to avoid only actual unconstitutionality as judged by reference to prevailing doctrine at the time of enactment, Nelson explains, then “the canon would not invite ‘generative avoidance’”(p. 340). He adds that new constitutional rules can, however, serve as “tiebreakers” that permit a court to adopt a constitutional interpretation of a statute rather than hold the statute unconstitutional under the newly articulated rule (p. 338 n.32).
My take on avoiding novel questions, which was published earlier this week in the Yale Journal on Regulation Online, is much the same as Nelson’s. As I argued, “[a]voiding novel constitutional doubts should be a highly disfavored way of resolving a case, a method of last resort, to be used only once one has exhausted other techniques of statutory interpretation, and if one is prepared to hold that the novel constitutional problem is an actualbarrier to the statute” (p.13). At that extreme, when the novel constitutional issue poses an actual obstacle, not merely a “doubt,” it is appropriate for a court to use classical avoidance to “save” as much of the statute as possible from actual nullification, whether by old law or new. This is a good approach to novel constitutional doubts, I argued, because it will ensure that “when the justices first confront truly novel constitutional questions, they will address them with the caution and carefulness of a court creating law, not dictum” (p. 13).
Saturday, June 13, 2015
Aggregate Agency Adjudication
At Yale's Journal on Regulation, Chris Walker highlights our project on Aggregate Agency Adjudication with the Administrative Conference for the United States. Michael Sant’Ambrogio and I are studying agencies that experiment with class actions, trials by statistics, and other aggregate litigation techniques to resolves lots of cases in their own courts. As we discuss in The Agency Class Action, 112 Colum. L. Rev. 1992 (2012), agencies don't do this very often. And there are lots of reasons why. But, we want to see if agencies can use aggregate adjudication along with other tools -- rulemaking, informal guidance, stare decisis and ADR -- to resolve cases more effectively.
I've already described Medicare's new pilot plan to use "trials by statistics" to alleviate its 500,000+ case backlog. So, here's another example: the National Vaccine Injury Compensation Program. Congress created this program in the 1980s to provide people injured by vaccines with a no-fault alternative to lawsuits in federal court. In theory, an "Office of Special Master" must decide whether to compensate someone in 240 days based on a showing that the vaccine caused the injury. But see Nora Freeman Engstrom, A Dose of Reality for Specialized Courts: Lessons from the VICP, 163 U. Pa. L. Rev. _ (forthcoming 2015) (finding, among other things, that it takes longer than that). Many claims proceed one at a time, like most benefit programs. But when over 5,000 parents claimed that a vaccine additive, called Thimerosal, caused autism in children, the Vaccine Program used three “omnibus proceedings" to pool together all the individual claims that raised the same highly contested scientific questions in front of just three adjudicators. As it happens, the Vaccine Program has used coordinated proceedings like this for more than 20 years.
Even though the Act that created the vaccine program contains no provision for class action suits or anything like it, the program developed the concept of the omnibus proceeding on its own because the "same vaccine and injury often involve the same body of medical expertise." Counsel representing large groups of individual claimants often use an omnibus proceeding to answer questions of "general causation," like whether a particular vaccine is capable of causing a specific injury. The issue of whether it did so in a specific case can then be resolved more expeditiously. I'll provide a few more details about this process below, but can you think of other agencies that assign large groups of individual similar cases to the same adjudicator for similar reasons? What are strengths and weaknesses of this kind of approach?
Friday, June 12, 2015
Three-judge district courts in constitutional reform litigation
At Balkinization, David Gans discusses the use of three-judge district courts in conservative-leaning impact litigation challenging campaign-finance reform and voting rights rules. Gans argues it reflects "a long term conservative strategy for getting blockbuster campaign finance and voting rights cases to the Supreme Court. It is a strategy that has paid off time and again as John Roberts and his conservative colleagues have made it easier for corporations and the wealthy to spend unlimited sums of money on elections, and harder for Americans to vote in them."
I do not buy the argument that the three-judge district court procedure is in any way relevant or to blame for the doctrinal trends Gans is decrying. First, as Gans notes, the most significant recent case--Shelby County--did not come from a three-judge court, but SCOTUS took the case anyway and a narrow majority gutted the Voting Rights Act. Second, and more importantly, the three-judge district court does not benefit conservatives or liberals as much as it benefits whoever happens to be bringing the legal challenges. As Gans himself acknowledges, three-judge district courts were a central feature in litigation challenging Jim Crow and other discriminatory policies during the Civil Rights Era, with the NAACP and other litigators designing legal strategy specifically to get into a three-judge court; this enabled plaintiffs to avoid hostile individual district judges in favor of a broader panel and to get cases to SCOTUS more quickly. But that current challenges are being brought by conservatives and creating constitutional doctrine that Gans obviously dislikes does not reflect anything about the wisdom (or lack thereof) of the three-judge process. If we accept constitutional impact litigation as a legitimate use of the courts, it cannot matter who is bringing the challenge or the positions they are urging; the complaint can only be about the doctrine, not the process that got us there.
For the best history of the three-judge process, including its role during the Civil Rights Era and its restriction in the '70s (based on the perception that they no longer were necessary), see Michael Solimine's 2008 article.
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.
The Changing Face of Federal Supremacy
By now, the observation's familiar, maybe banal: How law's enforced matters. It matters as much, maybe more, than what the law books say our rights and duties are. As long as it's not enforced, a law against eating fried chicken with a fork is funny. But more often than not the stakes for people's lives aren't merely academic or the least bit funny.
Take enforcement of federal law. The Supreme Court's made some important decisions about this topic recently. In Shelby County v. Holder, for example, the Court stopped preclearance under Section 5 of the Voting Rights Act by striking down Section 4, which identified the jurisdictions that had to preclear their election laws. Texas announced it would enforce a strict voter ID law the same day as the Court's decision, and a spate of states followed suit. In a more recent decision, Armstrong v. Exceptional Child Center, the Court held that the remedy for violations of Medicaid's "equal access" mandate is for the Secretary of Health and Human Services to withhold funding, not for beneficiaries to sue states. It's not clear that'll work, though Eloise Pasachoff has recently argued we need to rethink the merits of cutting off funding.
Shelby County and Armstrong don't seem to have anything to do with one another. One was about voting rights and the other Medicaid. One was about the states' "equal sovereignty" and the other about judicial remedies for federal rights. But I've been reading the two cases together recently. And, when read together, they suggest the Court's reinterpreting the Supremacy Clause to transform remedies against the states.
Strange Bedfellows #5: One-Off Decisions (or, Thoughts on Plyler, Windsor, and Shelley v. Kraemer)
This post is part of the Strange Bedfellows series.
Whatever the outcome later this month of Obergefell v. Hodges (state-level bans on same-sex marriage), the decision is certain to refer heavily to US v. Windsor (2013) (federal ban on same-sex marriage). For its part, however, Windsor struck me as a descendent of a precedent it nowhere cited or discussed: Plyler v. Doe (1982).
Plyler invalidated a Texas statute denying public education to non-citizen children residing in the US unlawfully. The statute’s classification was sort of, but not really, based on alienage, which made it sort of, but not really, suspect. Free public education for youth was sort of, but not really, a fundamental right. The law threatened to create an economic underclass, which is sort of, but not really, wealth discrimination (which is sort of, but not really, a suspect classification in any event). There was no explicit finding of legislative animus against a disfavored class, although it seemed to be in the mix. Adding all of these not-quite factors together, the majority concluded that the statute violated equal protection, because “the discrimination contained in [the statute] can hardly be considered rational unless it furthers some substantial goal of the State.” The dissent complained that “by patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the [majority] spins out a theory custom-tailored to the facts of these cases.”
When teaching Plyler, I present it as a glimpse into an alternate universe where the sliding-scale approach favored by Justices Marshall and Stevens had taken hold, so that without regard to rigid categories, the more important the right or the more questionable the classification, the stricter the scrutiny. But it’s only a glimpse. Plyler has had little impact outside its factual setting: it remains a controlling precedent for laws that target undocumented aliens, but has not had any broader influence on equal protection or fundamental rights methodologies. Yet upon reading Windsor, I felt as if I was reading Plyler 2.0.
The Chief, the First Amendment, and the assignment power
At CoOp, Ron Collins writes about Chief Justice Roberts' emergence as the Court's leading voice on the First Amendment, a voice that "is already towering over that of others on the Court." Collins emphasizes the number of free speech majority opinions Roberts has authored in his decade on the Court--13, far more than the next two Justices (Scalia and Kennedy) combined, usually (with several notable exceptions) upholding the free speech claim, whether for better or worse.
But as I wrote in a comment to Ron's post, counting majority opinions is confounded somewhat by the fact that, as Chief, Roberts wields the assignment power whenever he is in the majority. And one reason he writes so much more than any other Justice is that he keeps assigning these cases to himself. Obviously, Roberts must hold a generally highly speech-protective vision of the First Amendment (perhaps Collins is correct that it is the most protective on the Court) in order to be in the majority and thus in position to assign the opinion. But Chief Justice Warren also was consistently in the majority in free speech cases, also usually to uphold the constitutional claim. The difference is that Warren assigned many of these cases to Justice Brennan, which enabled Brennan to emerge as the Court's second great First Amendment voice.
Roberts could as easily have assigned some of these cases to, for example, Kennedy--who has joined most of Roberts' free speech opinions and thus shares a similar First Amendment vision--in the same way. That he has not done so could tell us many different things. It could be about Roberts' unique views of the First Amendment and his specific desire to carry the First Amendment mantle. But it also could be about Roberts' unique views of the assignment power.
Update: A reader shares this 2013 Judicature essay by Linda Greenhouse exploring Roberts' self-assignment practices, which notes the prevalence of First Amendment (including religion) cases that Roberts has kept for himself.
Wednesday, June 10, 2015
Gun Control Denial of Cert: Jackson v. City of San Francisco
A couple of days ago, the Supreme Court declined cert in Jackson v. City of San Francisco, a petition challenging my fair city's gun control ordinance in Section 4512 of the police code, according to which, "[n]o person shall keep a handgun within a residence owned or controlled by that person unless (1) the hand-gun is stored in a locked container or disabled with a trigger lock that has been approved by the California Department of Justice"; or "(2) the handgun is carried on the person of an individual over the age of 18” or “under the control of a person who is a peace officer under [California law].”
Jackson, five other gun owners, and (of course) the NRA thought this ordinance a violation of Heller. The city argued that the restrictions were reasonable (they did not apply to long guns; they allowed carrying on the person; the lockbox retrieval was not too onerous or slow) and protected an important interest of public safety (preventing accidents and suicides.) But I guess we won't know for a while, because there were only two dissenters--Scalia and Thomas--who wrote:
The decision of the Court of Appeals is in serious tension with Heller. We explained in Heller that the Second Amendment codified a right “ ‘inherited from our English ancestors,’” a key component of which is the right to keep and bear arms for the lawful purpose of self-defense. . . We therefore rejected as inconsistent with the Second Amendment a ban on possession of handguns in the home because “handguns are the most popular weapon chosen by Americans for self-defense in the home” and because a trigger-lock requirement prevented residents from rendering their firearms “operable for the purpose of immediate self-defense. . . San Francisco’s law allows residents to use their handguns for the purpose of self-defense, but it prohibits them from keeping those handguns “operable for the purpose of immediate self-defense” when not carried on their person.The law thus burdens their right to self-defense at the times they are most vulnerable—when they are sleeping, bathing, changing clothes, or otherwise indisposed."
Some commentators have thought that this might be picked up in the future, when there is a circuit split about similar ordinances, but there might be something else going on, according to the dissenters; they find the denial "difficult to account for in light of [the Court's] repeated willingness to review splitless decisions involving alleged violations of other constitutional rights."
Are most of the Justices sick of the unreasonable expansion of unregulated gun ownership under Heller? And if not, what do you think is going on?
Is Lethal Injection About Us or Them?
I’ve been thinking a bit lately about lethal injection, about the ways it is problematic regardless of what the Supreme Court holds in Glossip. I’m at the very early stages of a work-in-progress on the topic, and one of the things I’ve been quite drawn to is a passage from Chief Judge Alex Kozinski’s dissent from the denial of a rehearing en banc in Wood v. Ryan.
Here’s what he wrote:
Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. . . . But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.
It’s worth noting that Judge Kozinski supports the death penalty (his essay “Tinkering with Death” presents a thoughtful and remarkably personal account of his views on the subject) so his position here can’t be written off as just another abolitionist trying to muck things up. The pain inflicted on victims and their families is tremendous, he says, and society has a moral right to respond accordingly. The point here is that we should at least be honest about what the death penalty is: brutality for brutality. And if we’re not willing to accept that, we shouldn’t be doing it.
So here’s my question: is lethal injection about us or is it about them? That is, is it about masking the brutality of executions so we don’t have to deal with the violence inherent in taking another life? Or is it about providing the condemned with a relatively painless death, something they don’t deserve (at least by the measure of their own crimes) but can expect from a civilized society?
Barkes, Sheehan, and The Qualified-Immunity Docket
Last week, the Supreme Court summarily reversed a denial of qualified immunity in Taylor v. Barkes, a tragic case involving an alleged failure to implement adequate suicide prevention protocols in prison. As Howard has already noted, Barkes follows on the heels of the Court’s recent qualified-immunity decision in San Francisco v. Sheehan and offers further evidence of the Court’s growing determination to protect officials from civil liability. Of special note, Barkes seems like the latest application of a new and more general claim put forward in Sheehan: erroneous denials of qualified immunity are so important as to justify error correction by the Supreme Court.
Sohoni on King v. Burwell
One-stop Civ Pro shopping
I am not sure it would be possible to write a better Civ Pro exam than Newberry v Silverman, a recent decision from the Sixth Circuit (H/T: Alex Stein of Cardozo). The case has almost everything we cover in the 1L course--removal, transfer of venue following removal, personal jurisdiction (and its effect on transfer of venue), choice of law following transfer, FRCP 9(b) pleading for fraud, and the granting of leave to amend factually insufficient pleadings.
Tuesday, June 09, 2015
Strange Bedfellows #4: Jury Selection All Over The Place
This post is part of the Strange Bedfellows series.
Jury selection appears often in the Con Law canon. The first SCOTUS case to find a violation of the Equal Protection Clause, Strauder v. West Virginia (1879), involved a statute that included only white men in the jury pool. Hoyt v. Florida (1961), an anti-canonical case usually taught as an example of the bad old days before sex classifications were deemed (quasi-) suspect, involved a law that excused women from the jury pool. Batson v. Kentucky (1986) involved a prosecutor’s peremptory strikes on the basis of race, but it tends to be taught in Criminal Procedure courses. Its progeny Edmonson v. Leesville Concrete (1991) applied Batson to peremptory strikes in civil cases; it is taught more often in introductory Con Law courses than is Batson, because it is conceptualized as a case about the state action doctrine. More recently, the first US Court of Appeals decision holding sexual orientation to be a (quasi-) suspect classification (included in my casebook) arose in the civil Batson context, after a gay man was peremptorily stricken from a jury deciding an antitrust claim against a manufacturer of HIV medications. SmithKline Beecham v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014).
These decisions are often taught and presented in casebooks as if jury selection just happens to be the factual setting in which a legal question (usually involving equal protection) just happens to arise. This is a lost opportunity, because the jury trial can be worthy of independent consideration in a Con Law survey course. Even if not taught together on the same day or same unit, it can be valuable to use such cases to emphasize the jury as an institution of constitutional dimension.
"The Attack on Truth": A Sidelong Take
Yesterday's Chronicle of Higher Education contained an op-ed titled "The Attack on Truth," by Lee McIntyre, a research fellow focusing on the history and philosophy of science. There are standard-issue versions of op-eds by this name and on this subject for both the left and right, and for both science and the humanities; this one is the standard-issue left version for science. It's just decent as these things go, but there is an interesting passage in the middle with some possible payoff for legal academic writing:
[T]hen a funny thing happened: While many natural scientists declared the battle won and headed back to their labs, some left-wing postmodernist criticisms of truth began to be picked up by right-wing ideologues who were looking for respectable cover for their denial of climate change, evolution, and other scientifically accepted conclusions. Alan Sokal said he had hoped to shake up academic progressives, but suddenly one found hard-right conservatives sounding like Continental intellectuals. And that caused discombobulation on the left.
A similar potential phenomenon, along with a second and more concrete interesting reversal, is also apparent in legal academic writing in my field of public/constitutional law. The scholarly legal analog to the "left-wing postmodernist criticisms of truth" and "Continental intellectual"-aping literature that McIntyre refers to above is Critical Legal Studies. As I've suggested elsewhere, in the fields that I'm most concerned with, especially law and religion, the most fertile population for such skeptical criticism these days comes from the right, not the left. There are a variety of reasons for this, I'm sure, but I suspect the most important one is that conservative positions on these issues are now more clearly minority positions than they used to be in the legal academy (as opposed to the courts themselves, although the ground may be evening up there as well). Insofar as CLS was born and used in large measure as a device for fighting guerrilla actions by undermining and sabotaging the overly confident assertions and assumptions of the majority, it makes sense that it would now be more useful for legal conservatives. In my view (see the linked article above), Steve Smith has for a long time made particularly productive and skillful use of it in his work. For the same reasons that, if McIntyre is right, this kind of thinking has become more prevalent on the right in certain areas, I would not be surprised if its use increased on the right in public/constitutional law scholarship. This is a good thing, in my view, and has been little remarked upon.
JOTWELL: Thornburg on Schwartz on the information benefits of discovery
The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Joanna C. Schwartz, Introspection Through Litigation (Notre Dame Law Review), which explores the ways that discovery enables and incentivizes institutional litigants to examine and change their own actions and processes. I was particularly intrigued in how the substantive rules surrounding § 1983 litigation (notably Monell) actually undermine those information-gathering and "introspection" incentives.
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.
Strange Bedfellows #3: Alcohol All Over The Place
This post is part of the Strange Bedfellows series.
For a topic that supposedly is not part of the standard Con Law curriculum, federal alcohol prohibition—and its repeal by the 21st Amendment—appears remarkably often in the typical syllabus.
The two alcohol-related cases most firmly established in the canon and reproduced in whole or in part in virtually every Con Law casebook are South Dakota v. Dole (1987) (allowing Congress to condition receipt of federal highway funds on states raising their drinking ages to 21) and Craig v. Boren (1976) (adopting intermediate scrutiny for sex-based classifications under equal protection, in a case where state established different drinking ages for males and females). Other alcohol cases sometimes taught in Con Law or related electives include Wisconsin v. Constantineau (1971) (invalidating on procedural due process grounds a statute allowing police to forbid sales of alcohol to problem drinkers), Larkin v. Grendel’s Den (1982) (invalidating on Establishment Clause grounds a zoning ordinance that gave veto over liquor licenses to nearby churches); 44 Liquormart, Inc. v. Rhode Island (1996) (invalidating state liquor advertising laws under the commercial speech doctrine), and Granholm v. Heald (2005) (invalidating under the dormant commerce clause doctrine a state law forbidding interstate direct-to-consumer wine sales while allowing similar intrastate sales).
Although alcohol is a ubiquitous feature of fact patterns across many different doctrines, it tends not to be a focus of Con Law teaching. One can understand why: food and beverage law is a niche practice that need not be studied by all law school graduates, and it is not tested on the bar exam. As a result, the 18th and 21st Amendments can be safely treated as a source of constitutional trivia. Did you know that the 18th Amendment is the only amendment to be repealed in full? Did you know that the 21st Amendment was the only amendment that required ratification through state conventions rather than state legislatures? Did you know that the 21st Amendment, like the 13th, has no state action requirement and can be directly violated by private individuals? (On the latter point, see Laurence Tribe, “How to Violate the Constitution Without Really Trying,” in William Eskridge & Sanford Levinson, Constitutional Stupidities, Constitutional Tragedies (1998).)
One might ask what a unit in a Con Law class would look like if it foregrounded the 21st Amendment, instead of leaving it at the margins.
Friday, June 05, 2015
Aquarius Episode Reviews
NBC's new show, Aquarius, is a police procedural set in the late 1960s and loosely based on Charles Manson and the "family". The show streams live in its entirety, for free, on the NBC website. Since my book project in progress involves the Manson "family", I'm reviewing and analyzing episodes on California Correctional Crisis.
If you teach criminal procedure, this might be worth your while, because the show is based on the "buddy cops" trope, and its main protagonists, Sam Hodiak and Brian Shafe, are the embodiments of Herbert Packer's crime control and due process models--as Packer was developing them, and with a fresh-from-the-Warren-Court Miranda rule--evidenced by the clip below:
Feel free to join and comment on legal history, anachronisms, constitutional law and the social politics of the 1960s according to NBC.
Property Law and/as Science Fiction
I love teaching Property Law. I also love science fiction. Today I was reminded of a connection between the two.
I enjoyed part of the afternoon chatting with a group of our recent graduates who are deep in preparation for the Bar Exam. Our conversation focused upon Property. Talking with my students reminded me that real property can seem as much fantasy or science fiction as law. The Rule Against Perpetuities is as scrutable as the technobabble on Star Trek. It is not for nothing that the most ridiculous (and yet familiar) moments in the Wachowskis' Jupiter Ascending occur as the heroine seeks to establish her ownership of Earth. (Yes, I love science fiction that much.)
At the same time, like reading good science fiction, studying Property Law can help us learn about who we are as a people and what kind of society we want to have. It is not for nothing that we still think about dynasties and aristocracies when we think about the Rule Against Perpetuities. The challenge is to help students see the trek's one worth having, even with the technobabble.
Despite Nebraska’s repeal of its death penalty last week, Governor Pete Ricketts has vowed to execute the 10 inmates now on death row. Here’s the argument:
Nebraska’s repeal legislation states “It is the intent of the Legislature that in any criminal proceeding in which the death penalty has been imposed but not carried out prior to the effective date of this act, such penalty shall be changed to life imprisonment.”
The state AG’s office says the provision violates the state constitution, which gives the Board of Pardons exclusive power to change final sentences.
The repeal law’s defenders say it does not change the actual sentence of death, but rather removes the state’s ability to carry it out, just like repeal legislation in other states. And as for the intent provision, well that’s just an intent provision; it doesn’t carry the force of law.
Patent Reform and Substance-Specific Procedural Rules
In 2011, Congress passed the America Invents Act, the most comprehensive patent reform legislation in more than half a century. Yet, Congress is currently considering further patent reform, which appears to be moving forward with the Senate Judiciary Committee approving the bill yesterday. The current reform measures are designed primarily to curb "patent litigation abuse" by creating special procedural rules for patent cases, including heightened pleading standards, restricted discovery, and more liberal fee-shifting.
This latest reform effort raises a number of questions. Some scholars argue that there's simply not enough data to support the legislation, while others say the reforms are unnecessary because courts and other institutional actors have already taken steps to address patent litigation abuse. Commentators have also claimed that the reforms may seem reasonable in theory, but the actual proposed legislation is too broad and will harm our innovation economy. I would like to focus on a different question: Are substance-specific procedural rules for patent cases appropriate and, if so, who should make those rules?
Although trans-substantivity is a hallmark of the Federal Rules of Civil Procedure (FRCP), there has been some movement away from this principle recently. As I discuss in a recent article, that trend is particularly pronounced in the patent context where almost a third of federal district courts have adopted patent-specific local rules, and many individual judges use special standing orders for patent cases. So there seems to be some consensus about the utility of specialized procedural rules in patent cases, but should it be Congress, district judges, or the Judicial Conference that decides the content of those rules? I believe the Judicial Conference, which is responsible for proposing amendments to the FRCP, is in the best position to draft a uniform set of procedural rules for patent cases. While far from perfect, the FRCP rulemaking process is more transparent, balanced, inclusive, and deliberate than the process for enacting legislation or adopting local district court rules.
The return of summary adjudication?
For a long time, SCOTUS had a great deal of mandatory jurisdiction. Prior to 1976, actions to enjoin enforcement of constitutionally defective federal and state laws were heard by three-judge district courts with direct and mandatory review by SCOTUS. Prior to 1988, SCOTUS had appellate (mandatory) jurisdiction over state court judgments that invalidated federal statutes or upheld state statutes in the face of federal (usually constitutional) challenge. This obviously played some role (how much is an empirical question that I would like to explore someday) in the Court's docket being significantly larger from the '60s through the mid-'80s. One way the Court handled that larger docket was through summary and memorandum dispositions (both to affirm and to reverse) of some of these mandatory-jurisdiction cases (again, the numbers are for future exploration).
For now, I am wondering whether the Court's seemingly increasing practice of summary grant-and-reverse decisions--part of what Will Baude described as the Court's Shadow Docket and which Richard further discussed--reflects a return to this practice. Monday's decision in Taylor v. Burke (which I discussed Wednesday) is the latest example of the practice, which is especially prominent in certain types of cases (notably § 1983/qualified immunity and habeas) involving certain types of outcomes (predominantly, although not always, where the government/officer lost in the lower court). As before, summary procedures allow the Court to speak to and resolve a greater number of cases, even if not in the fullest fashion.
The difference is that the earlier practice was (at least arguably) necessary to handle the heavier caseload that Congress had imposed on the Court; the Justices could not address so many cases if they had to give plenary review to each of them. On the other hand, necessity does not dictate the current practice--the Court is not doing this because it has no other way to handle these cases or because it would be unduly burdened by giving plenary review to more cases. Instead, it reflects the Justices' strategic choice to reach more cases and issues, often towards a particular substantive end, but without expressly acknowledging an expansion of its jurisdiction or its certiorari practices and without, as Baude puts it, their "otherwise high standards of transparency and legal craft."
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.
Article III, Mandatory Arbitration, and Corporate Settlement Mills
To follow up on Richard's post, I wanted to ask your thoughts about another aspect of the Supreme Court’s most recent Article III decision in Wellness Int’l v. Sharif (2015). As a reminder, Sharif is one of many cases that asks how much power Congress can give to bankruptcy courts, legislative courts and other dispute resolution programs without threatening our independent federal judiciary. Over at Indisputably, Jean Sternlight argues that the opinion raises "substantial questions as to the constitutional legitimacy of ... private mandatory arbitration." She observes:
[Sharif] held that litigants may “knowingly and voluntarily” allow a bankruptcy judge to hear claims that, absent such consent, Article III would bar the bankruptcy judge from deciding...
Yet, while the Justices who have spoken on the topic seem inclined to find arbitration permissible, the principles espoused by the Court cast doubt as to the constitutional legitimacy under Article III of mandatory private arbitration. Lower court decisions have blithely held that arbitration is permitted because parties waive their right to go to court when they agree to arbitrate, but the issue is not so simple...
[W]hen courts have sought to justify arbitration on the ground that parties “consented” to bring claims in arbitration rather than in court, they have not applied the “knowing and voluntary” definition of consent recently applied in Sharif. If courts did look for knowing and voluntary consent they would find that while many business-to-business arbitration agreements meet the test, few if any consumer and employment clauses do so.
(H/T Jeff Sovern). I wonder whether Sternlight’s argument cuts more broadly. "Mandatory arbitration" refers to "take-it-or leave" it agreements forged between businesses and consumers before a dispute arises. But do you think the same analysis could apply to recent efforts by policymakers to encourage or require similar corporate dispute resolution programs after-the-fact? Some thoughts after the jump.
Strange Bedfellows #2: Eugenics All Over The Place
This post is part of the Strange Bedfellows series.
It’s well known that Buck v. Bell (1927) and Skinner v. Oklahoma (1942) are the leading SCOTUS cases on the constitutionality of eugenic sterilization laws. But the legacy of the eugenics movement appears elsewhere in the Con Law canon—including such greatest hits as Loving v. Virginia (1967), Washington v. Davis (1976), and Cleburne Living Center (1985).
To best see the connections, it helps to know some of the history of intelligence testing. Researchers in the early 20th century attached a number of terms, intended to be clinical, to levels of intellectual development considered abnormally low. The two original terms were idiot and imbecile. An idiot was pre-verbal, with no more intelligence than an infant. An imbecile could use language, but had the intelligence only of a pre-pubescent child. Later researchers became concerned that there was a class of adults who could speak and function above the imbecile level, but should still be categorized as abnormally stupid. They might be good for factory labor, but they tended to be "immoral" and prone to "criminality." These were the morons. When Oliver Wendell Holmes, speaking of Carrie Buck’s genealogy, said that “three generations of imbeciles are enough,” he misspoke: at best, the allegation was that Carrie Buck was one of generations of morons. And she wasn’t one of those either. See Paul Lombardo, Three Generations, No Imbeciles, 60 NYU L. Rev. 30 (1985). The blanket category for idiots, imbeciles, and morons was feeble-minded.
The quest to develop reliable tools to measure intellectual ability led to a number of tools still used today. Some of these involve advanced statistics (as explained in Stephen Jay Gould’s 1981 book The Mismeasure of Man) but one of them is known to us all: the multiple choice test. Psychological researchers were so convinced of the value of the technique that they convinced the US Army during WWI to give the new multiple-choice intelligence tests to draftees as a method of deciding who should be promoted to positions of command. The officers were never convinced that the results would be valid for that purpose, but the researchers continued to hype the results, including at Congressional hearings. Their alarming conclusion: the United States was “a nation of morons.”
Nebraska’s Governor said he did (or at least promised they were on the way) while trying to fend off the state’s repeal of the death penalty last week. For those who missed this nail-biter, Nebraska’s unicameral legislature had voted to repeal the death penalty, the governor had vetoed the repeal measure, and the legislature was gearing up to override the veto (they needed 30 votes, and pulled exactly 30).
Nebraska is the first Republican-controlled state in over 40 years to repeal the death penalty, a fascinating account in a number of ways. I’m not sure it’s “a Nixon-visits-Red-China moment” but it’s big. When it makes a John Oliver segment, you know it’s big (and messed up in some strangely entertaining way).
It’s fascinating that Governor Pete Ricketts responded with the tweet: “My words cannot express how appalled I am that we have lost a critical tool to protect law enforcement and Nebraska families.” I found myself shouting at my computer when I read this, like some crazy sports fan yelling at the TV. “Are you serious?” I asked (expletives redacted). “Are you aware that Nebraska hasn’t had an execution in almost 20 years? You do know that your death row of 11 just dropped to 10 because another guy died waiting to be executed, right?” Nebraska’s death penalty was a waste of time and money, which is part of the reason conservatives voted to repeal it.
But what I find especially fascinating is the role that lethal injection drugs—or more accurately, the lack thereof—played in Nebraska’s repeal. Here’s the backstory:
What Would Erving Goffman Say about Caitlyn Jenner?
Annie Leibovitz's portrait of Caitlyn Jenner, on the cover of Vanity Fair, has provoked a lot of commentary, both praising and critical. Many of my social media friends and acquaintances have been posting and reposting Jon Stewart's commentary, which went as follows:
Stewart's point is well taken and important to keep in mind. And yet it was, after all, Caitlyn Jenner's choice to appear on the cover of Vanity Fair in full conformity with the conventions of female depictions in magazines and advertisements.
In 1961, Erving Goffman published his little-known book Gender Advertisements. It is an album-sized book, consisting mainly of reproduced photos of 1950s product ads. Through these visuals, Goffman, the champion and granddaddy of the presentation of self as a performative act, proves his point: men, in ads, are DOING things. Women are POSING for the male gaze.
Compare Jenner's depiction on the Vanity Fair cover to her 1976 photo as a decathlete on the Wheaties box. In that photo, Jenner is depicted running, gazing away from the viewers and focused on the athletic performance. In the current photo, Jenner is depicted in a corset, doing nothing except gazing at the viewers. It's a textbook example of conformity to gender standards in visual depictions.
It should go without saying that it is Jenner's choice to conform, or not, to these standards. Also, Jenner is operating within a context that measures transfolk by their ability to conform to cisnormative standards, and I can't fault her for choosing the traditional female gender depiction (in addition to the traditional female form and dress) as a measure of success in meeting these standards. Moreover, there are no guarantees that leering and jeering commentators wouldn't be commenting on her looks even if she *were* depicted as doing, rather than gazing. But I do want to point out that the perspective Stewart mocks in his segment is so insidious and pervasive that it is embraced by the women themselves, and that Jenner is as much a subject in the picture as an object of the gaze.
Laverne Cox's comments on this are apt:
But this has made me reflect critically on my own desires to ‘work a photo shoot’, to serve up various forms of glamour, power, sexiness, body affirming, racially empowering images of the various sides of my black, trans womanhood. I love working a photo shoot and creating inspiring images for my fans, for the world and above all for myself. But I also hope that it is my talent, my intelligence, my heart and spirit that most captivate, inspire, move and encourage folks to think more critically about the world around them.