« March 4, 2008 | Main | March 6, 2008 »

Wednesday, March 05, 2008

The Role of Apology in Litigation - A Visible Result?

I was struck a couple of weeks ago by the power of apology in the context of litigation. Does the current civil litigation sphere account for what is often masked by the adversary system - a potentially genuine apology? Despite legislation in some states and provinces evincing apologies are not evidence of liability, how many lawyers truly do counsel their clients to say “I’m sorry”? In law school, do we teach the apology as just the cathartic musings in some form of A.D.R. or as perhaps instead a settlement tool in a litigation context? Is it effective? Is it fair? Is it over-rated?

In Ontario, a former forensic paediatric pathologist, Dr. Charles Smith, testified before a provincial commission of inquiry about his role in the wrongful conviction of William Mullins-Johnson, a man wrongfully imprisoned for 12 years. The video below shows that perhaps the request for an apology was sprang upon Dr. Smith. Regardless of the reason for the apology, it is, at the very least, a powerful example of something that just does not show up very often in a civil trial.

The video is here:


So what of apology in litigation? In economic terms, does it ever “buy” a damages discount for a tortfeasor? In corrective justice terms, does it ever assist in redressing the moral imbalance between victim and tortfeasor? What do we do with it? As academics, how can we account for its role? Is it the ‘unmeasurable?’

Posted by Erik Knutsen on March 5, 2008 at 09:49 PM | Permalink | Comments (2) | TrackBack

Back in the Game

Apologies for my AWOL on the blog. Having just lived through a rather wild home flood, I've been prevented from contributing this past month, though have been following daily, as usual. However, I'm now back in the game! Thanks to Dan Markel for his patience. Looking forward to actively contributing to the blog this month, and "e-meeting" many of you!


Posted by Erik Knutsen on March 5, 2008 at 09:46 PM | Permalink | Comments (0) | TrackBack

A Question for Rick Hills: On Constitutional Decision Rules and the Institutional First Amendment

I think Prawfsblawg is extremely lucky to have Rick Hills as a guest.  I hardly need justify that statement, but I do want to single out one article in particular: Rick's splendid piece The Constitutional Rights of Private Governments, 78 NYU L. Rev. 144 (2003).  Those of you who have followed my thoughts here know that I am among those who believe we would benefit greatly from a closer consideration of the ways in which a variety speech institutions operate and govern themselves, and that in many respects First Amendment doctrine would benefit from an approach that builds itself from the ground up, closely tracking the practices of these institutions and effectively piggybacking on their own mechanisms of self-governance, rather than attempting to impose ill-fitting doctrines from the top down.  In this intellectual project, Rick's article is a constant source of inspiration and provocation.  Welcome, Rick.

If I may, Rick, let me go ahead and kill two birds with one stone: engaging you in a discussion of some interest to me while simultaneously engaging in relentless self-promotion.  In my article Three Faces of Deference, forthcoming in the Notre Dame Law Review, I attempt to draw connections between two ostensibly disparate emerging areas of constitutional scholarship.  The first is what I was discussing above: that set of scholars, including Rick and myself but also many others, notably including Fred Schauer, who have argued that we ought to pay increased attention to the role and value of institutional speakers (and worshippers, in the Free Exercise context) in our social firmament.  The other emerging area of scholarship is the study of constitutional decision rules.  We might sum this up roughly as the study of the distinction between constitutional meaning and constitutional implementation, the recognition that there may be a difference between the two, and the elaboration of a richer understanding of the ways in which courts implement constitutional norms in institutionally (in)appropriate ways.  Charter figures here include Richard Fallon, Kim Roosevelt, Mitchell Berman, and others.

Rick, you've also written usefully (and in an extremely readable fashion -- it's a great piece!) about this area of scholarship, in the Harvard Law Review Forum.  (If I'm not mistaken, you expand on these thoughts in a work in progress on anti-pragmatic constitutional theory.  Would you send me a draft of that paper one of these days?  Pretty please?)  As  I understand your piece, you argue that the distinction between constitutional meaning and constitutional implementation is "seductively misleading" because, ultimately, it's implementation all the way down.  Nevertheless, you agree that a focus on implementation is itself "extraordinarily helpful," both because it sharpens our understanding of constitutional doctrine and because it helps remind us of, and disabuse us of, "a deeply felt desire of judges and scholars to  achieve noninstrumental certainty in the law."

One of the goals of my Notre Dame piece is to argue that although these two fields of constitutional scholarship are seemingly disparate, they are in fact intimately related -- and that what ties them together, to a substantial degree, is the centrality in both fields of the concept of deference.  I write: "[L]inked at the focal point of deference, both of these emerging bodies of constitutional literature have much to gain from each other.  Institutional First Amendment theory advances the practical goals of constitutional decision rules theory.  In turn, decision rules theory supplies First Amendment institutionalism with legitimacy and a place on the constitutional map."  I conclude that these schools of thought "might profit considerably from a deeper mutual engagement."

With typical and unseemly bravado, Rick, I say that it is ironic that scholars have not already recognized and/or drawn a more explicit connection between these two areas of constitutional scholarship -- especially given that you have contributed to both bodies of literature.  So let me ask: Do you think there are connections between these two areas?  Do you think that your NYU piece and your Harvard piece are connected in ways that perhaps have gone unspoken so far?  Is a focus on the "constitutional rights of private governments," and perhaps more broadly still a concern for the place of institutions in our social and constitutional universe, one way of "resist[ing] the call to hunt for the Snark of 'pure,' noninstrumental constitutional value," as you put it?  Inquiring minds -- one inquiring mind, anyway -- want to know.          

Posted by Paul Horwitz on March 5, 2008 at 05:07 PM in First Amendment | Permalink | Comments (0) | TrackBack

Lawyers’ Conferences vs. Legal Academic Conferences

Since joining the legal academia, I’ve attended mostly academic conferences: AALS, Law and Society; American Society for Legal History; various labor and employment law meetings (including a now-annual affair dreamed up on this very blog); some pure history conferences; and various small work-shops.

It’s not that I don’t like lawyers. I practiced longer than most legal academics before I began teaching, and really, some of my best friends are lawyers. Still, beyond speaking at some CLE-type events, I rarely went to conferences for lawyers.

That changed last year, when I was invited to speak at the ABA Section of Labor & Employment Law’s State & Local Government Bargaining & Employment Law Midwinter Meeting. In short, that’s the ABA group dedicated to public sector labor law, which I write about. I thought it would be fun, albeit a bit of a junket (it was held in a resort in Mexico). But hey, they were going to pay my way. . . .

When I got to the conference, I was tremendously impressed. The people and speakers (who weren’t me) were smart and incredibly knowledgeable, the written materials were outstanding, and so were the discussions. I was so impressed with the 2007 conference I came back in 2008 (even though they didn’t pay). It was again very rewarding. Public sector labor law is especially difficult to research: it’s a matter of state and local law which vary tremendously; there is no hornbook or other general overview text; and while much of the law is made at the state agency level, Westlaw and LEXIS only have the decisions of nine state agencies on line. And for some reason, you don’t see a lot of posts about it on Prawfsblog (unless Secunda is ranting about public sector employment and Con Law).

But even beyond the quirks of this subject, lawyers’ conferences have a whole different feel than academic conferences. Not only are ABA conferences often in some sunny resort south of the border in the middle of winter, but also the conference I attended has golf and tennis tournaments in the afternoons. Academic conferences are structured to make you feel like you should be attending something every daylight hour for several days – and many academics seem to think it’s some form of transgressive naughtiness to miss sessions. This ABA conference didn’t even have mid-late afternoon sessions.

Further, the types of discussions are different. As a pointy-headed PhD type, I’m down with using theory, upping the level of abstraction, and generally making the topic speak to Law In General, The State, or what have you. More seriously, I honestly believe that theory, history, etc. are relevant to actual lawyering. But lawyers’ conferences are great if you really care about the nitty-gritty of doctrine in a given area – when you don’t feel a need to make it about something "bigger" – and to learn what the parties who litigate these things are thinking about, and where they think the gaps, practical problems, and coming issues in the law are.

Plus, the mohitos on the beach are pretty good.

Posted by JosephSlater on March 5, 2008 at 11:11 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Hillary Clinton and the Endless Narcissism of a Generation

I don't mean to sound as if I'm endorsing a candidate in this post, Democrat or Republican.  But after listening to Senator Clinton's combative speech last night, I find myself wondering again why so many people persist in seeing the Democratic race as being about race, or gender, when it is also and obviously so clearly about an endless and increasingly tiresome generational struggle. 

Can anyone fail to ignore the endlessly pivoting justifications of Senator Clinton's generation for their permanent place in the driver's seat of American life?  In 1968 it was a question of trust: the famous slogan, of course, was "don't trust anyone over 30," and all those best-and-brightest types in the generation in power were mere technocrats who failed, in one person's words, to "consider a more human and eventually a more progressive perspective."  In 1992, in the face of any number of economic and political crises that arguably required experienced leadership, the line was that "the defenders of the status quo" must step aside: "Your time has come and gone.  It's time for a change in America."  It was enough to "know the old ways don't work," even if one had to admit, "I don't have all the answers."  And those who mocked anyone who would exalt mere "vision" over experience were derided.  Last night, lo and behold, the message was one of experience: "Who is tested and ready to be commander in chief on Day One?"  (Aside from, you know, that other guy.)

May one indulge a fantasy and look forward to other campaign slogans as the baby boom generation continues to grasp at power in the years to come, albeit with increasingly arthritic fingers?  For 2020, perhaps: "Gerontocracy -- A New Vision for Democracy," or "Superannuated!," or, in a little bit of double entendre, "For Our Social Security." 

And for 2120?  How about "Heads Floating in a Jar -- Because It's About Using Your Head -- Not Your Body."     

Posted by Paul Horwitz on March 5, 2008 at 10:04 AM in Current Affairs | Permalink | Comments (3) | TrackBack

The Roberts Court, admin law, & federalism

For aficionados of federalism, all of the important battles over state power are now being fought in the arena of administrative law and regulatory preemption. If agencies can easily preempt state law, then federalism is dead, because agency regs tend inexorably to expand over time, squeezing out most state policy-making space. If the court throws road blocks in front of agency preemption, then the states have a fighting chance of eking out a corner in which to resist national policies.

So how does the Roberts Court rate on federalism grounds? For fans of state power, the early returns are not promising. Last week, the Court handed Riegel v Medtronic, 128 S. Ct. 999 (2008), in which it held that the FDA’s premarket approval of a balloon catheter preempted state common-law claims against the manufacturer for negligence, strict liability, and implied warranty. Riegel follows on the heels of Watters v Wachovia, 127 S. Ct. 1559 (2007), in which the Court held that the National Banking Act preempted states’ laws banning “predatory lending” by state-chartered banks that were subsidiaries of banks with national charters.

On a brighter note (again, if you are inclined, like myself, to favor broad state power), the Court yesterday summarily affirmed , by a 4-4 vote, the Second Circuit’s decision in Desiano v. Warner-Lambert, 467 F.3d 85 (2nd Cir 2006), finding no preemption of Michigan law. The issue in Warner-Lambert was whether Michigan law could permit product liability claims against manufacturers of FDA-approved drugs for fraud, failure to warn, and defective design and manufacture if plaintiffs proved that the defendants had obtained FDA approval of their drugs by misrepresenting material facts to the FDA. Judge Guido Calabresi had found no preemption.

The bad news for the friends of federalism is that the 4-4 decision was likely the result of Chief Justice Roberts’ recusal: It is difficult to believe that Roberts who joined Justice Scalia’s dissenting opinion in Gonzales v Oregon, would tolerate state tort claims rooted in the allegation that a manufacturer committed fraud against the FDA. Robust state power, in short, is probably on the short side of a 5-4 split.

The case on which hopes of federalism hang is now Wyeth v Levine, a case set for argument in the coming Fall term. (In Wyeth, the Vermont Supreme Court held that the FDA’s approval of Phenergan, an anti-allergy drug, did not preempt failure-to-warn claims that injection of the drug posed risks to a patients’ arteries. Levine’s arm was amputated after her artery was damaged as a result of an injection of Phenergan).

With agency preemption at the front of the Court’s agenda, it is not surprising that recent legal scholarship has focused on the issue. One could divide the literature into three categories.

First, there are pro-agency pieces that stress the capacity of administrative agencies to take into account state interests and “the values of federalism.” As first-rate examples of this position, consider Mark Seidenfeld’s and Brian Galle’s article, “Admin Law’s Federalism.” (See article) As Seidenfeld and Galle see it, the administrative process tends to be more transparent than congressional processes, and agency officials tend to have less of an interest in catering to industry’s desire for preemption that members of Congress. To the extent that one thinks that states will be adequately protected through the congressional political process, one should a fortiori be confident about agency processes.

Second, there are anti-preemption pieces that urge that agencies cannot be trusted to take into account the broad institutional interests of states. My former colleague, Nina Mendelsohn offers the best statement of this position in Chevron and Preemption, 102 Mich. L. Rev. 737 (2004), where she argues that agencies simply are not equipped with either the political incentives or the jurisdictional mandate to consider the values of federalism. Focused on their narrow statutory mission – safe drugs or automobiles, cleaner air, healthy workplaces, etc – agency officials have neither the time or inclination to think about values like political legitimacy or democratic participation.

Third, there is the inevitable middle ground – essentially trusting administrative expertise to weigh federalism but insisting that agencies exercise such expertise in a particular context. My colleague, Catherine Sharkey, urges an “agency reference” model in “Products Liability Preemption: An Institutional Approach” (see article) under which the critical consideration is whether the agency has addressed the issue of preemption in its normal policy-making process, when assessing the risks and benefits of the underlying private conduct being regulated. Sharkey would give agencies Skidmore rather than Chevron deference on their preemption positions, and she would insist on a relatively specific fact-finding that state common-law liability increases some risk that the agency is entitled to control. Along similar lines, Gillian Metzger urges in “Administrative Law as the New Federalism” (See article) that federalism be protected through administrative law’s normal requirements of good process – substantial evidence in the record, responses to public comments in section 553 rule-making, etc.

My own instinct is that these contributions might sidestep a critical issue in preemption decisions – the fight between populism and expertise. Much of the literature asks whether agency processes protect state power “enough” without providing any normative theory for what federalism is for. But one cannot know whether federalism gets “enough” protection without such a normative theory. And such a theory will have to be more specific than the usual bland nods to “the values of federalism” – political; participation, experimentation, and so forth. These “values” tend to ignore the real basis for fights between the center and the periphery.

A traditional function of the American federal system has been to represent the values and beliefs of people without national influence against the claims of bureaucratic and educational elites at the metropolitan center. Andrew Jackson’s campaign against the Bank of the United States, the 1870s Granger movement’s campaign against the railroads, Debs’ 1890s campaign against the labor injunction -- all of these movements invoked federalism as a vehicle for giving political outsiders (usually but not inevitably located in the South and West) a platform on which to fight against the well-connected, well-heeled, or well-educated elites who lobby or staff the federal government. The essence of American federalism is, in short, Country Party suspicion of claims to authority based on education or the needs of national capital.

It seems improbable to me that ordinary agency rule-making is well-equipped to negotiate these sorts of demands for democratic legitimacy based on lay judgment. Agencies are relatively immune to popular opinion and have no accurate way to gauge popular values. Agencies also have no mandate to consider the distributive justice or injustice of having losses fall where they land, even when such distribution leads to efficient production of goods or services. Most of all, agencies simply ignore local leaders’ claims to legitimacy, which tend to be based more on skill at raising distributive claims before lay audiences – juries and voters – and not at making causal claims through sound clinical studies or accurate multivariate regressions.

Before one defends or attacks agencies as adequate or inadequate defenders of federalism, therefore, one needs to answer one fundamental question: Should agencies be influenced by such populist claims of legitimacy? If one answers this question negatively, then the strongest claims for broad agency preemption probably ought to be accepted. If one answers it affirmatively, then existing agency procedures probably do not “adequately” consider “state interests,” because those processes are ill-suited for thinking about the only interests that state juries and legislatures are well-equipped to represent – the populist claims to equal concern and respect for lay judgment.

Posted by Rick Hills on March 5, 2008 at 09:38 AM in Law and Politics | Permalink | Comments (0) | TrackBack

Learning from Our Students

In my upper-level elective courses (Federal Courts and Civil Rights), 15 % of the final grade is based on an appellate argument. Each student argues a recent court of appeals decision to the "Supreme Court" (a panel of myself and 2-3 classmates). I have done this three times and the students tend to get into the project. Many students (especially the public-law geeks who tend to take Fed Courts) like the chance to play judge and appellate advocate and I think they (or at least some of them) see it as a nice change-of-pace from the typical end-of-semester issue-spotting hypothetical essay exam.

On two occasions, I have used Smelt v. Orange County, a 2006 decision where the Ninth Circuit abstained under Pullman from a constitutional challenge to California's ban on same-sex marriage. The court abstained in deference to a state constitutional challenge to the ban that at the point was working its way through the state courts. The California Supreme Court actually heard oral arguments on the state case yesterday, which is what reminded me of this. Dale Carpenter offers thoughts on the argument at the VC.

My initial reaction to the case was that the Ninth Circuit was correct in abstaining. But this year, the student arguing for reversal nailed the key issue that undermines the Ninth Circuit's decision, although without fully fleshing it out. Pullman abstention is proper when a challenged state law is ambiguous and a state-court interpretation and construction might eliminate the constitutional defect in the law. Pullman is grounded in policies of avoiding unnecessary constitutional rulings and seeking sub-constitutional grounds for resolving cases. But the state law must be ambiguous and must be reasonably capable of some construction that would avoid the constitutional problem; if the law is clear and unambiguous, abstention is improper and the federal court should go ahead and resolve the constitutional challenge.

But, the student pointed out in the argument, California's marriage laws are not ambiguous--they are perfectly clear in prohibiting two men or two women from marrying each other. And this caused me to re-examine the decision in Smelt and to conclude that the Ninth Circuit was wrong. The court's three-part test asked only whether a state-law issue could resolve the litigation; it did not say anything about the nature of the state-law issue or the need for ambiguity. The pending state-court litigation to which the court deferred was not going to construe the state laws or interpret around the possible constitutional defects; it was going to decide the constitutionality of these unambiguous laws, but under the state constitution. But the court said that was enough for abstention. In other words, the Ninth Circuit used Pullman to privilege state constitutional litigation over federal constitutional litigation. That flies in the face of the view that abstention should be the exception to the Court's "unflagging obligation" to take jurisdiction.

Ultimately, Smelt passes into history without notice. The time for seeking cert is long passed. And, since the state-court case was pending when the federal case was filed, there may have been other bases for the court to abstain. And the California Supreme Court will resolve the issue on state constitutional grounds, one way or another.

But it is great when students can call out the courts for sloppy doctrinal work. And it is even better when they can help us to identify that sloppiness. That is a teaching moment.

Posted by Howard Wasserman on March 5, 2008 at 08:15 AM | Permalink | Comments (6) | TrackBack


Huckabee is Huckabeen (for the 2008 presidential election).  Between (1) the NYT story on McCain's possible lobbyist conflict of interest and (2) the blawgospheric discussion of McCain's possible constitutional ineligibility for the presidency, Huckabee may have come surprisingly close to getting the miracle he hoped would put him in the White House.  But alas, it was not to be.  At least not yet.  Perhaps the Colbert Bump wasn't quite bumpy enough.

Posted by Adam Kolber on March 5, 2008 at 12:27 AM | Permalink | Comments (1) | TrackBack