PrawfsBlawg

Signing off

It's been lovely catching up with the Prawfs universe again, although the month seemed to go by much faster this time around.  For those of you heading to the SEALS conference in North Carolina later in July, I look forward to catching up.  For the rest of the gang, enjoy July!

Good Bye and Thanks

 

Sharp-tongued woman prof

offends sensibilities?

Time out from Althouse?

 

In seriousness, thanks to Dan and the Prawfs for the platform this month.  Thanks to the readers and especially those who commented.

Rejoice! 

E-debate!

 

Leiter survey: Most Important Judges

At Leiter's Law School Reports, Brian is running a new reader poll to rank the most important American judges of the 20th century. The poll will be up through July 4. Have at it.

A Few Words About Judge Sutton's Tax Analysis

I'm going to extend my (ahem) mandate by talking a little bit about the health care litigation.

I largely admire Judge Sutton's concurring opinion in the Sixth Circuit's Affordable Care Act decision.  He clearly has reservations about the law, but wrestles with them in what looks to be an intellectually honest way.  I thought he was wrong, though, to conclude that the statute couldn't be justified under the taxing power.  As he notes, "Few doubt that Congress could pass an equally coercive law under its taxing power by imposing a healthcare tax on everyone and freeing them from the tax if they purchased health insurance."  (slip op. at 51)  But he rejects the taxing-power theory because, he claims, Congress didn't call the enactment a tax.  (Id. at 28).

Unusually for courts that have considered this point, Judge Sutton gives evidence of having actually read the statute.  He notes that the word "tax" appears a number of other times in the section imposing additional costs on those who fail to buy insurance.  (slip op. at 30).  From this he infers that Congress must have meant to distinguish between taxes and what it called a "penalty."  But most of these other appearances of "tax," as well as other usages such as "taxpayer" and "taxable year," are clearly intended to refer to the penalty.  For example, the amount of the "penalty" is determined by taking a percentage of the "taxpayer's household income for the taxable year."  Who is the taxpayer here, except the person who must pay the price for failing to buy insurance?       

In any event, given the perfect economic equivalence between the ACA and the provision Sutton says would easily be constitutional, one is left to wonder why formalism must prevail.  I've argued not only that it shouldn't, but that the Supreme Court has actually held it doesn't.  (Edit):  Even better, read Akhil Amar on this point.   

Baycol and Strategic Behavior

As I mentioned in my previous posts, I planned to blog this month on each of the four class action cases the Supreme Court decided this term:  (1) AT&T Mobility LLC v. Concepcion; (2) Erica P. John Fund, Inc. v. Halliburton Co., No. 09-1403; (3) Smith v. Bayer, 09-1205; (4) Wal-Mart Stores, Inc. v. Dukes, No. 10-277.    I have already discussed AT&T, Halliburton, and Wal-Mart (ad nauseum), so I want to conclude my blogging stint by discussing Smith v. Bayer, the Baycol case. 

Baycol turned out to be an easy, 9-0 decision (with one caveat), but it shows the collective action problems that can arise in the absence of mandatory collective procedures in the mass tort context.  In discussing Wal-Mart, I alluded to these collective action problems in discussing the problem of asymmetric stakes, so here I want to build on my discussion by outlining the legal issue and laying out the real, strategic problem the Justices missed.

Baycol concerned two competing class actions in West Virginia against the manufacturer of Baycol, Bayer, for personal injuries caused by the drug.   The first class action, filed in West Virginia state court, was removed by Bayer to federal court, where it was then promptly transferred to the district court for the district of Minnesota to be included in ongoing multidistrict litigation ("MDL") concerning Baycol.  The second class action was also filed in West Virginia state court, but the plaintiff included defendants that destroyed diversity among the parties, preventing Bayer from removing the case to federal court and transferring the action to the Minnesota MDL.  Both actions were filed prior to the Class Action Fairness Act of 2005, which, among other things, relaxed diversity requirements to permit defendants to remove class actions to federal court.  Now keep that in mind, because I will test you on it later.

The MDL court denied the first class action's motion for class certification.  Bayer then asked the MDL court to enjoin the second class action from being certified.  Under the Anti-Injunction Act ("AIA"), a federal court cannot enjoin a state court proceeding except in a few narrow circumstances, primarily out of comity, or respect, for state court proceedings.  But Bayer sought to invoke the "relitigation" exception to the AIA, which permits a court to enjoin a second action if the parties are precluded from bringing it according to a federal judgment.  Specifically, Bayer argued that the MDL court's rejection of the first class action precluded the second class action, since the issue of class certification had already been decided by the MDL court in the negative.  The MDL agreed, and enjoined the second class action.

Two problems arose for Bayer.  First, under the law of issue preclusion, the issue in the first action must be the same as the issue in the second action.  Here the first class action was denied under federal law, Rule 23, while the second class action sought certification under state law, which is similar (though not identical) to Rule 23.   Second, under the law of issue preclusion, the parties have to be the same in both actions or at least be in privity, a fancy word for cahoots.  Here there was no dispute that the parties to the second class action were not the same as, or in privity with, the parties to the first class action.  One exception to the "same parties" requirement is the class action itself, which permits a court to issue a judgment that binds nonparty members of the class, but here the court denied class certification, so there was no class action to speak of.

The Supremes used both grounds to reverse the MDL's injunction as violating the AIA.   The first ground, which all Justices joined, was easy enough.  West Virginia's class action law, which was very similar to Rule 23, was not the same.  The second ground, which Justice Thomas did NOT join, was interesting.  The Court reiterated the general presumption that a judgment cannot bind a nonparty, (except for class actions, of course), so the lack of sameness also was a reason to reverse.  To do otherwise would recognize a "de facto" class action where one was explicitly denied.  I am unsure about the validity of this second ground, which is why we shouldn't underestimate Justice Thomas's point of view.

So far so good.  But what I find interesting are the policy reasons that underlie the need for an injunction in these cases, and that lead to legislation such as CAFA (see what I did there?).  One primary concern, recognized by the Court, is opportunistic behavior.  Class attorneys can effectively shop around for a court to certify a class, changing the representatives to avoid issue preclusion.  Framed in this way, the inability to enjoin copycat class actions sounds like a advantage for the plaintiffs.  

But consider the defendant's perspective.  Suppose that a defendant can choose among different, competing class actions.  The class attorneys could compete with each other on price, telling the defendant "allow us to certify and we can ensure a low-cost, global settlement," with a kickback provided by generous attorneys fees.  Such "reverse auctions," which were first identified by John Coffee, require greater use of antisuit injunctions to enjoin competing class actions.  Indeed, Tobias Wolff has argued in favor of permitting the use of such injunctions to prevent "reverse auctions."   Thus, it is easy to see why the MDL court (which is also a great way to avoid "reverse auctions") would want to put the kibosh on the second class action in Baycol. 

But the same strategic behavior which causes "reverse auctions" is not limited to competing class actions.  A single plaintiff may want to defect from the class since he may be better off going alone.  But as I mentioned in my post on asymmetric stakes, and as I argue in more detail in my paper, allowing the plaintiffs to strategically defect reduces the economies of scale any plaintiff can use to invest in common issues.  Thus, it perpetuates the problem of asymmetric stakes - no one plaintiff or group of plaintiffs will have the same amount at stake as the defendant, and thus the defendant will have greater incentive to invest in the case.  Accordingly, just as an injunction is needed to prevent strategic behavior in the "reverse auction" context, individual plaintiffs must also be enjoined from defecting from a class action to prevent the problem of asymmetric stakes.  In other words, you need a mandatory class action - all the way down.

With that, I want to thank Prawfsblawg for allowing me to post this month, and thank you all for reading.  If you are interested in my thoughts on other mass tort cases or complex litigation generally, I will be expressing myself on the Mass Tort Litigation blog, and invite you all to check the blog out!

Sovereignty, judicial authority, and personal jurisdiction

Some thinking aloud on personal jurisdiction that I am trying to work through after last week's decision in J. McIntyre Machinery v. Nicastro.

In my several writings on jurisdictionality, I have repeatedly taken the view that jurisdiction means "legitimate authority" to do something (I borrow that phrase from Evan Tsen Lee), with adjudicative jurisdiction (in the sense of subject-matter jurisdiction) being the authority to hear a class of cases and to consider and resolve legal and factual issues in those case. In her dissent, Justice Ginsburg rejected the plurality's rhetorical move of repeatedly describing personal jurisdiction in terms of state sovereignty and sovereign authority rather than individual liberty concerns of due process; I agreed with her on this point.

A blog reader e-mailed me to take issue with this dichotomy, suggesting that due process necessarily must take into account whether the state has legitimate authority over the defendant, because due process protects defendants against an assertion of authority by a sovereign lacking a legitimate interest in exercising that authority. Justice Kennedy made the same basic point:

Personal jurisdiction, of course, restricts “judicial power not as a matter of sovereignty, but as a matter of individual liberty,” for due process protects the individual’s right to be subject only to lawful power. Insurance Corp., 456 U. S., at 702. But whether a judicial judgment is lawful depends on whether the sovereign has authority to render it.

I am trying to work out in my head why the structural language that Kennedy used is so troubling.

Maybe subject matter and personal jurisdiction reflect different types of judicial authority. Subject matter jurisdiction is authority to hear and resolve the legal and factual issues in the case. Personal jurisdiction is the authority to make the defendant do something (answer, litigate, obey a judgment). But again, both require an exercise of governmental authority within the judicial branch.

Maybe the difference is the source of authority. A court's authority over a defendant (i.e., personal jurisdiction) in a given case derives from the defendant's actions in either consenting to jurisdiction or doing something as part of the underlying events to purposefully avail himself of the state and its laws. It seems to me that this framing fits with the due process grounding for personal jurisdiction, because it leaves state authority entirely in the defendant's control. If that is right, then Kennedy's insistence that foreseeability must yield to concerns for state authority is circular. State authority over the defendant derives from foreseeability and foreseeability creates state authority. That is, if it is foreseeable to the defendant that, because of his conduct, he could be haled into court in a state, then the state has authority over him. This is more than "freeform notions of fundamental fairness" and more than a mere convenience inquiry, which form the secondary inquiry under the Shoe framework (or at least they did prior to Monday). The defendant still must take some steps to interact with the state or people within the state to establish jurisdiction, convenient or not.

The other problem with framing this in sovereign terms is the problem of waivability, since a defendant can consent to litigate in a forum simply by not contesting personal jurisdiction. But if limits on a sovereign are structural (as with subject matter jurisdiction) they cannot be waived by individual choices or individual actions (a point Ginsburg makes, citing Insurance Corp. of Ireland). This is why Pennoyer's twin postulates--a state has absolute authority over all persons and property within and no authority over persons and property without--could not be entirely true.

Finally, there is the possibility that this is all just rhetoric and semantics: Speaking in sovereign terms, while grounding the analysis in due process and the defendant's actions, gets us to the same point, while avoiding a descent into simply convenience and reasonableness.  Again, this is all thinking out loud (which is part of why we blog).

Name-That-Justice!

It's June 30th, so time for me to sign off.  Thanks to Dan and all at prawfs for permitting me to spend one of the loveliest months of the year with you, a mild and pleasant time when the summer is full of promise.  July 4th fireworks are the starting gun for summer's second half, when family vacations vie with back to school sales.  So savor the fleeting beauty of the season.  In celebration of the final week of the SCOTUS term, and because many of you will need a game for your car ride this week-end, I offer a final puzzler.  Below are two lines excerpted from one of my favorite argument exchanges this term--two quotes from two Justices (although not sequential).  Who were the Justices, and what was the argument?

"So slow down from the rhetoric . . ."

"But don't be rhetorical."

Wishing everyone a peaceful and safe summer and the very best article placement that you can get!

Bachmann, Thomas, and John Quincy Adams

In this crazy, mixed-up world, at least all of us can agree on one thing: John Quincy Adams was not a Founding Father.  In attempting to justify her statement to the contrary, Michele Bachmann told an interviewer: “John Quincy Adams most certainly was a part of the Revolutionary War era. He was a young boy but he was actively involved.”

I don't mean to make too much fun of Bachmann for her defense of her statement.*  But I thought it would be fun to contrast Bachmann's views with those of another originalist, Clarence Thomas.  Writing in this week's Brown v. EMA decision, in a somewhat bizarre version of originalism, Thomas is at pains to argue that founding-era views concerning children, and parental authority over them, is such that the freedom of speech can't possibly be understood "to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors' parents."  Children around the revolutionary era, Thomas opines, were viewed as "blank slates" who "lacked reason and decisionmaking ability," and the laws reflected the view that "children were not fit to govern themselves."

Since JQA was nine around the time the Revolutionary War broke out, I think it is fair to say that on Thomas's reading, Bachmann must be wrong.  A minor who lacks reason and decisionmaking ability and is not fit to govern himself can, at most, be said to be a founding child -- and one, at that, who should be seen and not heard -- but not a freely participating, autonomous founding father.  Q.E.D. 

* I do reserve the right to mock those who attempted to edit JQA's Wikipedia page to call him a "founding father."  And I do want to acknowledge that all politicians, of all political stripes, commit gaffes of this kind, and that figures like Palin and Bachmann might be subject to disproportionate public and media scrutiny and mockery for doing what everyone else does from time to time.  Of course, when Barack Obama mistakenly referred to the "57" states of the United States of America, he did not, unlike Bachmann, stubbornly insist on defending a proposition that was patently false.  Why it would have been harder simply to say "Oops!" is beyond me.   As Goldwater used to say, obstinacy in the defense of error is no virtue.

Call for Papers – 2012 Law & Informatics Symposium

The Northern Kentucky Law Review and Salmon P. Chase College of Law seek submissions for the Law & Informatics Symposium on March 1-2, 2012. The Law Review Symposium will take place March 2^nd. It will be preceded by a day-long CLE program March 1 regarding practical solutions to current problems facing attorneys and clients.

The Symposium is an opportunity for academics, practitioners, consultants, and students to exchange ideas and explore emerging issues in informatics law, disruptive innovation and the increasingly interconnected information environment. Interdisciplinary presentations are encouraged. Authors and presenters are invited to submit proposals on topics such as the following:

Privacy Federal privacy legislative efforts Federal/state employment regulations regarding privacy HIPAA, FERPA, COPPA, GLBA & other sector-specific privacy issues EU & global privacy laws & policies Bioinformatics Data mining of public databases Social Media and political change   Internet Regulation Net Neutrality DNS Protocols PRO IP Act New Top Level Domain   Business and Entrepreneurship Use of informatics tools for business Online securities disclosures & finance E-discovery and e-disclosure Employee control of Social Media Business to business contracting Customer tracking Online Dispute Resolution RFID and NFC utilization Ownership of databases & data Contracting & enforcement of agreements over sharing of data Assessment of significant commercial expansions of informatics practices affecting public expectations & norms

Security Computer Security Criminal Procedure, with emphasis on technology-based search Breach Disclosure Obligations National Security Law, with emphasis on cybersecurity Cyberwarfare treaty negotiatons Suxnet Virus Rules of engagement in Cyber-attacks Asymetrical warfare and non-state combatants Data protection & obligations regarding data breaches Data reliability, including people’s rights to review & correct collected data Data integrity policies to foster reliability, integrity & accuracy   Creative Media Industries Disruptive innovation in television Satellite regulation Gamification Publicity rights in video games Trademark usage in virtual worlds Participant-created content Payment models In-game virtual property & pricing Protection of minors Social media marketing Licensing of user generated content Disintermediation & reintermediation

Submissions & Important Dates:

- Please submit materials to [email protected]

- Submission Deadline for Abstracts: September 15, 2011  

- Submission Deadline for Articles: January 15, 2012

- Symposium Dates: March 1-2, 2012

Law Review Published Article: The Northern Kentucky Law Review will review, edit and publish submissions in the 2012 Spring Symposium issue.  Articles, as well as case studies and abstracts of research in progress, will be considered for the symposium program for presentation purposes.  Only complete articles, however, will be published in the law review.  Abstracts for these papers will be due no later than the September 15, 2011 deadline and will be accepted on a rolling basis until that time. 

Presentations (without publication) based on Abstracts: The Northern Kentucky Law Review will review and select presentations for the symposium.  If you are interested in presenting without submitting a publishable article, an abstract of the presentation must be submitted by the September 15, 2011 deadline and will be accepted on a rolling basis until that time. 

About the Law and Informatics Institute:

The Law & Informatics Institute at Chase College of Law provides a critical interdisciplinary approach to the study, research, scholarship, and practical application of informatics, focusing on the regulation and utilization of information – including its creation, acquisition, aggregation, security, manipulation and exploitation – in the fields of intellectual property law, privacy law, evidence (regulating government and the police), business law, and international law. 

Through courses, symposia, publications and workshops, the Law & Informatics Institute encourages thoughtful public discourse on the regulation and use of information systems, business innovation, and the development of best business practices regarding the exploitation and effectiveness of the information and data systems in business, health care, media, and entertainment, and the public sector. 

For More Information Please Contact:

Jesse Shore, Symposium Editor: [email protected]

Nicholas Dietsch, Editor-in-Chief: [email protected]

Professor Jon Garon, Symposium Faculty Sponsor: [email protected]

For additional information, please call: 859-572-5444

Writing About Criminal Punishment?

If you're writing about a criminal punishment-related topic this summer, consider participating in the ABA-AALS joint conference "Reducing Our Reliance on Incarceration," October 27-28 in D.C.  In addition to a fantastic line-up of confirmed speakers (including many names familiar at prawfs), there will be an opportunity to present works-in-progress in a roundtable format, scheduled for the first afternoon of the conference, Oct. 27th.  Be on the look-out later this summer for a Call for Submissions (helpfully timed to coincide to when you might be uploading your abstract to express-o).  If you'd like more information before then, feel free to contact me at [email protected].

Constitutional Tradition and the Individual Mandate

In my first post on the New Hampshire Republican Presidential Debate I took issue with claims raised by several of the candidates related to immigration and eligibility for office that could not be squared with constitutional text. More broadly, I questioned whether the “Imaginary Constitution” trope invoked by Ron Paul to critique liberal, activist judges ten years ago might not apply more tellingly to the constitutional visions and fantasies that underlay the candidates spoken and coded appeals to Tea Party voters watching the proceedings at their St. Anselm debate, where the Constitution took pride of place as the touchstone for assessing the orthodoxy of proposed answers to contemporary political problems. Richard Stengel’s thoughtful cover story in this week’s Time Magazine asks whether the Constitution still matters, and then suggests that as a nation “We the Parsers” obsessively query the Constitution for answers to particularized questions that the framers of the instrument never intended to answer. For Stengel, then, the Constitution matters, but not because it provides all the substantive answers. Stengel is correct to suggest a degree of clause-bound constitutional obsessiveness among the politically engaged population, and that is one theme I will revisit in passing today. But there are at least two other levels besides text on which the Constitution may well matter even more to the people out of doors, and those are symbolism and myth -- the principal subject of an upcoming post -- and constitutional tradition -- the principal focus of my post today. To elucidate the importance of constitutional tradition in contemporary popular constitutional politics, and its relation to constitutional text and constitutional myth, I suggest turning once again to the New Hampshire debates.

No perceived monstrosity of the Obama-state came in for more withering denunciation at St. Anselm than Obama-Care, and in particular the so-called individual mandate upon which some say the program depends (in the sense that universal access to bad insurance requires enforced universal participation in the bad insurance delivery mechanism, since bad insurance can’t very well be expected to sell itself.) The seven Republican candidates were in firm agreement that a federally enforced requirement to purchase insurance was wrongheaded. Some called it illegal, others unconstitutional. None suggested it was constitutionally permissible. There were very few claims that a federal individual mandate violated concrete constitutional guarantees apart from the nebulous Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) Even that cryptic provision lurked ethereally about the proceedings, seldom invoked by name, never enlisted directly into conversation, and never probed as to the telling change from “not expressly delegated” in parallel language in the Articles of Confederation to the sparser “not delegated” in Amendment Ten. (Debates in the First Congress on the proposed Tenth Amendment, by the way, make crystal clear that this alteration was deliberate, pointed, and aimed at protecting an expansive interpretation of federal power.) If no candidate explained how any clause of the Constitution including the Tenth Amendment enjoined the federal government from enforcing a mandate against individual persons, for principled libertarians this is hardly the point, since it is the absence a specific grant of authority to the federal government, not the absence of a particular prohibition against federal action, that should be outcome-determinative in assessing the constitutional validity of assertions of federal power. Hamilton in his Report of the Bank and Marshall in McColloch v. Maryland disagreed even as they articulated ambitious visions of a powerful federal government under the Constitution, but in Jeffersonian eyes they were wrong then and in libertarian eyes they continue wrong today. Some libertarians argue axiomatically that the federal government is one of limited, delegated authority, others reject the teachings of Oliver Wendell Holmes that the Tenth Amendment projects no invisible radiations annulling federal authority, but modern day states righters and individualists agree that unless a power to command individuals is expressly granted Congress in Article I Section 8 or elsewhere in the Constitutional text, it does not exist, New Deal Chief Justice Stone’s characterization of the Tenth Amendment as an insignificant “truism” notwithstanding.

The debate on broad construction and implied powers is as old as the Republic, and the precise question of whether a federal mandate to purchase insurance is compatible with the Constitution is as old as the New Deal. In Steward Machine and Helvering decided the same day in 1937, the Supreme Court upheld the Unemployment Insurance and Old Age Pension components of the Social Security Act, rejecting challenges under the Tenth Amendment and the Taxing and Spending Clauses that would have been successful not long before. So Supreme Court doctrine on the Tenth Amendment and the Taxing Powers (to say nothing of the Commerce Power), unless changed by subsequent decision, points towards the constitutionality of Obama Care including the lynchpin individual mandate. Of course for many Obama Care skeptics on the libertarian right, existing case law is also a symptom of the larger problem associated with the vestiges of the New Deal state these critics wish to sweep away. For present purposes, what intrigues me about increasing popular constitutional skepticism respecting the New Deal is not so much a popular revulsion against broad construction of the Taxing, Spending and Commerce Powers, or populist embrace of a reanimated Tenth Amendment that has teeth its designers never intended it to grow, but rather a firm faith that libertarianism rests at the heart of American soul and at the center of the American constitutional compact even when it cannot be proved by reference to constitutional text. Surely, the articulated argument and the unspoken assumption of Obama-care-skeptics hold, the federal government cannot make We the People buy things the government wishes us to buy, because that is not compatible with the American theory of limited governance. It is just not the sort of thing the Founding Fathers would have tolerated.

One of many ironies in the lived national experience that is frequently so much richer and more complex than nostalgic individualists assume is that the Founding Fathers actually endorsed and indeed required the mandatory acquisition of at least one item freighted with considerable ideological weight for libertarians and statists alike, namely guns. Those subject to the Federal Militia Act of 1792 (white men aged 18-45 and not otherwise exempted) were required to acquire a musket or rifle of designated specification for militia use, and for at least three decades, the federal government under both Federalist and Republican administrations attempted to ensure state enforcement of the federal requirement (rather presciently violating Justice Scalia’s anti-commandeering principle in the process). The Federal Government conducted Militia Censuses in 1802, 1806, and decennially from 1810, under which states adjutants general were required to send state officials door to door to make lists of militia eligible persons and ensure that they had come into possession of weapons compliant with the 1792 Act. The Jefferson Administration pushed the censuses hard, and made federal money available to the states to distribute to persons for the purpose of purchasing guns compliant with (and only guns compliant with) the terms of the Act. Now, I am neither a non-interpretivist, or an original intent originalist, or an original public meaning originalist. I do not have a general answer to the question of whether, why, and how founding era practice is relevant to constitutional interpretation today, except to suggest that if founding era understanding and practice is relevant, those who depend on the interpretive power of founding era understanding and practice are under a duty to accurately represent founding era understanding and practice, and to acknowledge that those understandings and practices seldom reflected unambiguous consensus. But while I personally lack a general theory of originalism, I think I am correct in suspecting that most libertarians and all seven candidates debating at New Hampshire would insist that founding era practice is profoundly relevant, at least in so far as it is consistent with contemporary libertarian impulses. That being said, back to my caveat about the duty on the part of those cleaving to originalist methods to accurately represent founding era practice and understanding for purposes of elucidating constitutional meaning: When it comes to individual mandates and founding era assumptions, as a factual matter, this much at least is true: Washington signed and Jefferson and Madison enforced a federal Act that required people to buy a particular item. And this, like a great many things regarding the constitutional history of the United States from the founding and early national periods is very difficult to square with Ron Paul’s 2008 claim that “The Constitution was written explicitly for one purpose – to restrain the federal government.” One might make that claim (with only partial accuracy, it turns out) about the Bill of Rights, but the claim is clearly frivolous respecting the original seven articles written in 1787-88 or the Reconstruction Amendments written in 1865-69. These were written not to restrain the federal government, but in the case of Articles I-VII to create a powerful national government were previously there had been none and in the case of Amendments XIII-XV to empower that government to crush the remnants of the slaveocracy that had imperiled the Union. The powerful appeal of Paul’s facially incorrect assertion that the framers at Philadelphia intended to restrain the federal government is the subject of my upcoming post on constitutional myth and constitutional covenant.

Clarifying personal jurisdiction . . . or not

The Supreme Court on Monday handed down its first decisions on personal jurisdiction since 1990. In Goodyear Dunlop Tires Operations v. Brown, the Court unanimously held that there was no general jurisdiction over a non-U.S. subsidiary in North Carolina based only on the subsidiary's products being sold in the state. In J. McIntyre Machinery Ltd. v. Nicastro, a divided Court (with no majority) held that a non-U.S. company is not subject to jurisdiction in New Jersey on any stream-of-commerce theory where it sold its products to a distributor in Ohio and never entered, advertised, or sold its products in New Jersey itself.

Thoughts (probably too many of them) after the jump.

1) Goodyear clarifies, in very stark terms, the differences between general and specific jurisdiciton. General jurisdiction is a place in which a defendant is "fairly regarded as at home." The paradigm of general jurisdiction is an individual's domicile, a business' place of incorporation, and a business' principal place of business. The textbook example is a 1952 case, in which the Court found jurisdiction in Ohio over a Philippines corporation that had ceased all activities there during the Japanese occupation during World War II and was operating entirely out of offices in Ohio during the duration of the War. The foreign subsidiaries were "in no sense at home in North Carolina."

Importantly, the Court seems to have rejected or at least narrowed general "doing business" jurisdiction, in which an entity is subject to general jurisdiction in any state in which it does continuous, systematic, and substantial business. The Court rejected the lower court's "sprawling view" of general jurisdiction under which "any substantial manufacturer or seller of goods would be amenable to suit, on any claim for relief, wherever its products are distributed." More is required than simply doing a lot of business in the state. At the very least, the company must have formally registered to do business in the state, have offices or plants or stores in the state, have agents in the state, etc. But the case could be read as suggesting that even this is not enough. Certainly those examples are not as continuous, systematic, and substantial as the paradigms of domicile, place of incorporation, and principal place of business, nor is it the same as having the home office in the state, as in Perkins.

The opinion signals to lower courts that simply doing even a lot continuous business in a state is not sufficient for general jurisdiction. But it remains to be seen what lower courts, which have over-expanded the concept, do with that signal.

2) The Court granted cert in McIntyre to resolve a question that had been left open 25 years ago in Asahi: whether putting a product into the stream of commerce expecting it to reach a particular state was sufficient purposeful availment or whether the defendant must somehow "target" the forum (through some "plus" activities). As we all remember from 1L, the Asahi Court divided 4-4-1 on that question, with Justice O'Connor arguing that something more is required and Justice Brennan arguing that placing the product into the stream of commerce was enough. Twenty-five years later, still no resolution. Four justices, lead by Justice Kennedy, emphatically rejected the Brennan view. Kennedy insisted that the defendant's actions, not his expectations, empowered the courts of a state to hear a case; only if a defendant took some actions directed towards a state could it be subject to a court's authority.

But we still do not have a majority view on the question. Justice Breyer concurred in the judgment, joined by Justice Alito, to again punt the question. Fearing the rapid changes to commerce and communication, Breyer thought it "unwise to announce a rule of broad applicability without full consideration of the modern-day consequences." There was no jurisdiction here even under a stream-of-commerce theory, therefore no reason to resolve the bigger question. Especially when the question looms for cases involving web sites, pop-up ads, and Amazon. At the very least, Adam Steinman argues, Justice Breyer's opinion suggests the Court is not going to wait another twenty years before wading back into personal jurisdiction and perhaps trying to create a more-modern framework; it just needs the right (read: internet-centered) case.

3) McIntyre in particular marks a shift in the rhetoric of personal jurisdiction. Justice Kennedy repeatedly talks about personal jurisdiction in structural terms of judicial power, sovereign authority, and submission by the defendant (through his acts) to the power of the sovereign, and the invalidity of a "judgment rendered in the absence of authority." In other words, making jurisdiction over the person sound like jurisdiction over the subject matter. This trumps the concerns for fairness and foreseeability that, according to the Court, lie at the heart of Justice Brennan's stream-of-commerce theory in Asahi. As Kennedy says, "[f]reeform notions of fundamental fairness divorced from traditional practice cannot transform a judgment rendered in the absence of authority."

Justice Ginsburg (properly, in my view) calls the plurality on this, insisting that "the constitutional limits on a state court's adjudicatory authority derive from considerations of due process, not state sovereignty." Indeed, one would have thought that was the idea behind International Shoe, which rejected presence and implied consent as legal fictions. Due process is supposed to be about fundamental fairness, a focus on individual liberty rather than root structural authority. A defendant's minimum contacts are not important because it means it consents to suit there, but because the contacts make it foreseeable and fair that, in the main, it could be sued there because of those contacts.

4) The disturbing part of McIntyre is less the academic/esoteric stream-of-commerce debate than the finding of no jurisdiction in this case. McIntyre Machinery is a British company that sought to sell its machines throughout the United States by selling them on consignment to an Ohio distributor with the hope that the distributor would sell throughout the U.S., of which New Jersey is a part (all jokes aside). Six justices viewed this as sufficient to establish minimum contacts with the United States, but not with New Jersey, with the latter being necessary for jurisdiction in state court or in the absence of a federal statute (more on that below). Personal jurisdiction is sovereign-specific, thus the question of personal jurisdiction in the United States was different than personal jurisdiction in any one state).

Justice Ginsburg rejected the idea that a defendant should be permitted to avoid jurisdiction in a state where one of its products caused serious harm simply because it worked through a single national or regional intermediary, as opposed to selling directly in the state or having a distributor in each state. For Ginsburg, intent to serve the entire United States means intent to serve every state in the United States, at least where the intent is to sell everywhere in the country (as opposed to telling the distributor to avoid a certain state or only to focus on certain places other than the forum). She further supports the point by including an appendix summarizing lower-court decisions finding jurisdiction over a manufacturer who worked through national or regional distributors.

5) The plurality and concurrence both ignore the second part of the personal jurisdiction analysis, which causes both to take a crabbed view of minimum contacts. Even if there are minimum contacts, jurisdiction still must comport with "traditional notions of fair play and substantial justice," meaning it must be reasonable to make the defendant litigate in the forum. Justice Kennedy expresses concern for a small local Florida fruit grower who sells to a national distributor and is subject to jurisdiction in Alaska; Justice Breyer (in his opinion and at oral argument) is similarly worried about an Egyptian shirt maker and Kenyan coffee farmer. But this is where the second prong is supposed to do its work to protect a truly small and truly local company from having to litigate far away (particularly in a foreign country). But this part of the framework never seems to come into play.

6) The question for civ pro teachers is whether and how to incorporate these cases into the personal jurisdiction portion of the course. They cannot just be add-ons; both must be treated as "major" cases and, particularly in a four-hour/one-semester class, there is no time to cover two additional cases. My inclination is that Goodyear replaces Helicopteros and McIntyre replaces Asahi, since both new opinions do a good job of discussing the prior cases, although I will miss teaching Asahi, which allowed for a nice review of impleader and applied the whole multi-step analytical framework. Someone on the civ pro listserv suggested teaching Goodyear right after Shoe and covering general jurisdiction first, given how Jutsice Ginsburg discusses the division between the two and how well she shows those differences. The opinion may allow students to understand general jurisdiction without having to first understand specific jurisdiction.

Supreme Court takes cert on "prolonged surveillance" case

The Blog of the Legal Times is reporting that the Supreme Court has taken cert on the United States v. Maynard case, which caused quite a stir last year, owing in part to the DC Circuit's suggestion that "comprehensive and sustained monitoring" of individuals by GPS, even those who were traveling in public spaces, violated the Fourth Amendment.  This in turn cast doubt on any number of surveillance practices that might extend indefinitely, including visual surveillance of persons in public (where, presumably, none of us ought to have a reasonable expectation of privacy).  As a former prosecutor, I agree with Orin's blog post last year that the DC's approach is entirely unworkable.  I assume Justice Alito will feel the same way.   

New York State of Mind

Friday night was obviously a big moment for New York, and for the rest of the nation, with N.Y.'s legislative passage of same-sex marriage.  Up in Connecticut, I watched the coverage online, and considered the ramifications of such a populous and important state joining the ranks of those that provide marriage equality.   I also considered anew how law teaching might change with marriage.  What are the implications for how we teach about family law, constitutional law, legislation, and trusts and estates?   How might we update things as simple as our hypos to reflect new realities? 

As a person who lives and works in two of the smaller states that have recognized same-sex marriage, I am very aware of the local nature of some aspects of the gay rights movement.  Law School Admissions Council (LSAC) data demonstrate that these regional differences play out among law schools as well.  A fair number of law schools still lack LGBTQ faculty, or courses dedicated to gay issues, or both.  LSAC information reinforces the impression that these gaps often (but not always) break down along regional lines, with fewer gay faculty or course offerings in states including Alabama, Arkansas, Florida, Missouri, Mississippi, Montana, Nebraska, Oklahoma, South Dakota, and Texas.  But for now, with apologies to Billy Joel, I'm in a "New York State of Mind." 

Due Process and Wal-Mart

This will be my last post on Wal-Mart, and although much more can be said about the decision, I want to focus on its ramifications for the law of procedural due process.  As I mentioned in an earlier post, Wal-Mart is part of a clear shift in favor of giving defendant's rights greater protection under the Due Process Clause.  But, as many have noted, the resulting doctrine is at odds with "ensuring accountability and effective enforcement in a wide variety of areas."  Indeed, as scholars recognized in the Court's earlier plurality opinion in Shady Grove, the Court "dismisses the proposition that a court should look to the policies embodied in the underlying substantive law when deciding whether class certification is appropriate."  Perhaps it is not a coincidence that Justice Scalia wrote the plurality in both Shady Grove and Wal-Mart.

I agree with these criticisms, but, building on my complaint that academics sometimes overcomplicate things, I am not sure it is helpful to frame the issue as one of "accountability" or "policies" versus "rights."  Framed in this way, the Court could easily respond that due process rights trump everytime.  Why not?  We're talking about the Constitution here!  Instead, and as I argue in my recent paper Mass Torts and Due Process (which is still looking for a home, law review editors!), I would say that the Court focuses on the wrong rights!    

I willingly concede that defendants have a "right" to such things as a trial by jury and affirmative defenses.  If a plaintiff has a property interest in a claim, why not recognize defenses as a form of property?  But we don't have these rights in a vacuum.  Instead, as famously recognized by Calabresi and Melamed, rights like claims or defenses are provided to protect other rights.  The Wal-Mart women have a claim under Title VII because "Congress has cast the Title VII plaintiff in the role of 'a private attorney general,' vindicating a policy 'of the highest priority.'"  Okay, so the Court also uses terms like "policy," but just what exactly is that "policy?"  Protecting a woman's right to be free from gender discrimination!  In other words, the claim is given to potential plaintiffs to protect a higher order right - a right against unlawful discrimination!  Understood in this way, Wal-Mart is not a case about "policy" versus "rights," or "groups" versus "individuals," or "substance" versus "procedure."  It is about two rights that can come into conflict!  It's rights versus rights!

But again, shouldn't the due process right reign supreme?  Not necessarily so.  As I discuss in my paper and in a recent debate on mass torts for Penn Law Review, a Court has to balance these rights, not identify them and protect them blindly.  And sometimes "due process" rights like control over the claim (so-called "litigant autonomy") or affirmative defenses have to give way if they lead to absurd and self-defeating results.

The key case is Mullane v. Central Hanover Bank & Trust Co.  There the Supreme Court reviewed a New York state banking law that authorized the aggregation of trusts with small assets into "common fund trusts" for common administration.  At issue was a provision for periodic accountings in which a court would review any claims against the administrator for breaching its fiduciary duties.  The accountings would settle all claims, but only provided notice to beneficiaries through a small ad in the newspaper.  The Supreme Court found the notice inadequate, saying in no uncertain terms that "a fundamental prerequisite of due process is an opportunity to be heard," which entails "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."  

So the Court ruled that each of the beneficiaries were entitled to individual, hand-delivered notice of the proceedings, right?  Wrong!  First, the Court said that newspaper notice was a-ok for beneficiaries that could not be located easily, like those with unknown addresses who only had a contingent and "remote" interest in the assets.  Otherwise, requiring more notice would be so expensive that it would "dissipate [the] advantages" of common fund trusts.  Second, the Court only required mail notice to those with known addresses, since "[t]he individual interest does not stand alone, but is identical with that of a class."   According to the Court, those who receive notice and choose to appear will adequately represent the interests of those who do not receive notice.

The lesson of Mullane is that due process rights like "notice" or a "defense," even if "fundamental prerequisites of due process," sometimes have to be diminished if they undermine the very rights they are meant to protect.  I mean, who wants "notice" for an accounting to settle claims against a common fund trust administrator if there are no common fund trusts?  Due process does not stand in the way to such absurdities.  More importantly, there is no need to resort to fancy concepts like "substantive policy" or "enforcement" to reach that simple lesson in Mullane.

Accordingly, I hope the Court does not use the recognition of a defendant's due process rights to undermine the whole point of Title VII, which again is to protect the plaintiff's "individual rights" against discrimination.  But I am both hopeful and a bit dismayed.  In Turner v. Rogers, for example, the Court engaged in the kind of balancing of competing rights I endorse here, where the Court considered competing procedures for protecting the rights of a deadbeat dad subjected to civil contempt for failing to pay child support.  At the same time, I also agreed with Justice Thomas that the Court's narrow focus on the "liberty interests" of the dad in avoiding incarceration failed to consider the rights of the mom in getting child support.  I mean, that was the whole point of the civil contempt procedure - ensuring timely payment!

 This is not to say that the Court did not get the right answer in Turner v. Rogers, and I certainly disagree with Justice Thomas's ultimate view that no such balancing should occur.  But the Court cannot ignore why we have certain procedural rights like contempt proceedings in the first place.  We sometimes forget that we have procedural rights to protect substantive rights, and to ignore those higher-order rights is to put the cart before the horse.

The HOV lane and personhood

Apologies for not blogging last week.  I went on vacation with my family and took my Ipad with me, but found myself with little access to the Internet.  To make up for my silence, I plan to blog up a storm this week.

I thought I would start the week off with an interesting exchange between my 9 year old daughter and me as we drove out to Long Island.  My daughter noticed that I was driving in the left lane, but not the High Occupancy Vehicle (HOV) lane.  The HOV lane is intended to encourage drivers to carpool and/or give up driving and take buses.  Carpools and buses are then rewarded with a lane that moves more quickly and has fewer cars.  At least, that's the general idea. I have been stuck several times behind ridiculously slow drivers in the HOV lane, and in some ways, it is worse because you have to wait for the next official "opening" in the lane to pass them.  For that reason, I sometimes purposely drive in the left lane that is next to the HOV lane, but not hampered by the no-passing rules.   

In any event, on this day, the HOV lane was moving at a nice clip.  And since the HOV lane was moving more quickly than our lane, my daughter very reasonably suggested that I move into that lane.  

Now, I usually drive in the HOV lane when my husband is also in the car, but on this day, it was just me and the two kids.  The highway signs state that the HOV lane is reserved for "carpools" and buses, and further state that a "carpool" consists of two or more "persons".  At least so far as the highway signs are concerned, no other adjective modifies the word "persons."   The signs do not say "adult person" for example, or "licensed person."  Despite this fact, and the fact that the HOV lane was moving more quickly than my own lane, it felt "wrong" to me to enter the HOV lane with just me (the one person who could drive) and two children far below the legal driving age.

The funny thing is that I have never hesitated to enter the HOV lane when my husband is in my car.  My husband, however, grew up in NYC and only received his license in the last few years.  If the HOV lane is intended to encourage two drivers to carpool in one car, then I have no business entering the HOV lane even when my husband is in the car.  Either New York State has defined carpool too broadly (in which case I never have had reason to drive in that lane), or I have employed an inconsistent definition of the word person.  The latter seems likley. What explains the sudden pang of guilt that arose when I was driving with my children but has not surfaced with my husband?

As my nine-year old indignantly pointed out, she most certainly is a "person" (as is my five year old, but he didn't really care which lane I drove).  Yet, she seems less like the idealized "person" that the lawmakers had in mind than my husband.  After all, in a pinch, my husband could  rent a separate car and drive himself out to Long Island.  My daughter, on the other hand, is pretty much stuck with me.  (Sorry kid).  It is interesting to see, then, how my own mind bounced from intuition  ("no, I can't drive the HOV with just my kids in the car - that wouldn't feel right"), to a more reasoned analysis of the statute ("the sign says "person" and Brandon is a person so surely we can enter the HOV").  It nicely demonstrates the way in which we often move - perhaps without even knowing it -- between intuition and logic when we encounter legal rules. 

By the way, it didn't really matter at the end what lane I drove.  When we got to the end of the Sunrise Highway, a massive accident nearly closed off the (now) two-lane highway for 45 minutes while officers were tending to a flipped SUV.  

 

Clean-up Post on On-line Journals and Amicus Briefs

I received a few e-mails and saw some questions and requests posted in the comments I wanted to be sure to address. 

 

On-Line Journals

First, I do not think there is any best time to submit except perhaps that I would avoid final exam period.  Second, I believe most are now available on Westlaw or Lexis, but I'm not sure.  Third, whereas it is theoretically possible the on-line journals are reaching a wider audience, I do not know whether that is true.  In any event, I would recommend posting all of one's publications on SSRN. 

 

Amicus Briefs

First, when a brief gets bounced because of an ECF problem, one typically has seven days to correct the problem.  Second, my understanding is that courts typically are strict about deadlines.  On the other hand, there are no amicus brief rules in district court, so judicial discretion will control.  Third, below is reprinting of a student's cheat sheet (without any editing from me) on finalizing a document for Electronic Court Filing (ECF).  For the most part, the courts' on-line instructions are good, but for someone like me who has not formatted a brief myself since law school, these things are things I always need help with.  He addresses three things not addressed on the courts' web pages:  (1) Creating a Table of Contents [applicable to ECF or non-ECF documents]; (2) Combining sections in Word to preserve pagination format changes to prep for PDF conversion; and (3) maintaining pagination in PDF to exactly correlate to the Word document, which is required for ECF.   

 

Conclusion

I hope these posts were helpful to some of you.  Feel free to e-mail me at [email protected] if I can help you with anything related to these posts. 

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

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

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

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

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

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

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

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

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

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

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

 

Asymmetric Stakes and Wal-Mart

I want to continue blogging about Wal-Mart, and explain why I disagree with the Court's interpretation of "commonality" under Rule 23(b)(2).  Although there has been significant criticism of this part of the Court's opinion, it is actually consistent with a recent trend by courts to look at the merits before awarding class certification.  In essence, by requiring a merits determination for purposes of satisfying "commonality," the Supreme Court is requiring a review of the merits of all proposed class actions, not just class actions seeking certification under Rule 23(b)(3).

So what's the big deal?  The problem with requiring a merits determination before granting class certification is that the plaintiffs need class certification in order to develop the merits.  Thus, the plaintiffs need class certification before a merits determination, not after.  As I argue in my recent paper Mass Torts and Due Process, this is because cases like Wal-Mart suffer from a problem of asymmetric stakes.

 Take the classic example for why class actions are needed - small claims litigation.  In small claims litigation, the potential recovery is too small to give a plaintiff an incentive to bring suit.  After all, "only a lunatic or a fanatic sues for $30."  But why is that a problem?  There are many examples of people who may have technical causes of action who chose not to sue.   Would you sue someone for battery if they gave you a wedgie (well, maybe for a four-story atomic wedgie)?    

The real problem in small claims litigation is that the stakes are asymmetric.  The defendant is subjected to the whole, collective liability at issue, but the recovery (the flip side of liability) is divided up among the plaintiffs.   So while the plaintiffs each decide not to bring suit, the defendant can avoid liability altogether.  

As I argue in my paper, the problem of asymmetric stakes does not go away simply because the plaintiffs may have enough incentive to bring suit, because there are other investments that the plaintiffs can make in the litigation, like hiring an attorney or, as in Wal-Mart, hiring an expert on social framework methods.   But if the problem of asymmetric stakes persists, then the defendant will always have greater incentive to invest in the litigation than the plaintiffs.  The defendant simply has more at stake.   This is doubly true given the greater financing options that defendants have in litigation.

The class action solves the problem because, as I argue in my paper, it is functionally a trust device.  It assigns control of the claims to a third party, class counsel, for the benefit of the plaintiffs, plus a percentage cut of the recovery, so that class counsel will invest in the litigation as if she owned the total amount at stake.  In this way the class action equalizes the stakes, giving the plaintiffs (via class counsel) and the defendant equal incentives to invest in the case.  Without the class action, collective action problems would prevent the plaintiffs from ever having the same stakes as the defendant.  It may be too expensive to join together and bring suit, or some plaintiffs may defect to bring suit individually.

Because the class action equalizes the stakes to prevent disparities in litigation investment, having the plaintiffs effectively prove their claims before class certification is a bad idea.  It would be like having the plaintiffs put out a fire before giving them a fire extinguisher.  But the impulse to require a merits determination before class certification is strong, as evidenced by the Fifth Circuit's position (later reversed) in Halliburton and the Court's decision in Wal-Mart.  Nevertheless, that impulse has to be resisted as much as possible if we care about the objectives of Title VII and similar liability rules.  

Dangerous, Maybe, But Not Baseless

Randy Barnett has a curious post up on VC (comments, as usual, are not allowed) concerning what he calls the "dangerous effort to delegitimate Supreme Court Justices."  It's kind of a rough mirror-image to Laurence Tribe's New York Times op-ed, which Barnett has criticized (and which I didn't care for either), which sought to buck up the liberal members of the Court and encourage Kennedy to join them on the healthcare litigation.  Barnett writes to praise an article in the American Spectator by Curt Levey that charges that the left has "ganged up" on Justices Scalia, Thomas, and to a lesser extent Alito, raising questions about their ethics in a concerted effort to get them off cases like the healthcare litigation.  This, Levey charges, constitutes a "dangerous escalation in the left's politicization of the court."  Barnett adds:

There is absolutely nothing wrong with criticizing the substance of decisions of the Supreme Court, and there is much to criticize. And there is nothing wrong with bringing genuine ethical lapses and conflicts-of-interest to light. But baseless politically motivated personal attacks on sitting justices are another matter entirely. Although nothing can stop these ad hominem attacks by activists from continuing, one way of muting their influence is simply to be more aware of their sources and motives. Reading Levey’s article is a useful start.

I agree with the first two sentences of that paragraph, of course; they are sufficiently banal and uncontroversial that anyone would.  I still find a few things curious about this post.  The first is Barnett's implied praise for Levey's article, which is basically a clip job connected by a few unargued assertions and talking points.  One needn't expect more, I suppose, but it's not exactly high-order journalism -- more a skillful use of the ctrl-V function.  

Second, Levey and Barnett make much of the "baseless" nature of these attacks.  But while they may ultimately be wrong, they're not baseless.  

Levey depends for his case on drawing a rough equivalence between the attacks on Thomas, Scalia, and Alito, although even he concedes the attacks on Alito have been much milder.  But the most prominent and hotly pursued arguments have been about Thomas's conduct, and specifically the web of connections between Thomas, his wife, and the unclearly sourced and quantified money that his wife has made trading on the world of connections among wealthy and politically active conservatives.  (A phenomenon that is also present on the left, to be sure, and that some of us don't care for in either case.)  Those actions may or may not violate judicial ethics, especially in the especially unregulated area of the Supreme Court, but they do raise genuine questions and genuine bases for criticism.  Neither Levey nor Barnett supply any meaningful information or argument about this.  

The basis for criticism of Scalia -- such as that he has spoken privately to a group of conservative members of Congress -- is much weaker.  But then, the argument that those criticisms have been part of a sustained movement on the part of the legal or political left is also weaker.  Levey's own article notes that many establishment liberals defended Scalia, and doesn't make any effort to show that criticisms of Scalia on the part of some on the left resulted in any concerted or serious attempt to make the episode into an ethics complaint.  (Incidentally, there is no mention of hunting trips with the Vice President.)  Finally, Levey writes of Alito:  "Even Alito's natural reaction to Obama's State of the Union ambush -- in which the Justice shook his head and mouthed "not true" -- has been widely portrayed as evincing a lack of impartiality and professionalism."  Well, natural though the reaction may have been, it arguably did show a lack of professionalism!  And again, it does not form a basis for arguing that Alito has been the subject of a concerted conspiracy to "delegitimate" him in general, let alone to force him to recuse on anything.  So, in the final result, neither Barnett nor Levey show that there has been a concerted effort to take formal or even unusual informal measures to delegitimate these three Justices or force their recusal.  The best arguments on that score concern Thomas -- whose actions have also been the most subject to legitimate criticism.

Third, Levey and Barnett's argument seems to be that this is both peculiar to the left and unprecedented and constitute an unusual and unusually dangerous effort to intimidate the right wing of the Court.  One needn't like these kinds of actions to say they're not unusual.  Levey's own article incidentally criticizes Ruth Bader Ginsburg for similar conduct, and repeats a commonly made assertion (which is not to say it is illegitimate) that Elena Kagan faces similar needs for recusal on the healthcare litigation.  If I read that point once from Ed Whelan on the National Review's Bench Memos blog, I read it a thousand times (although, to be fair, such is Whelan's writing that to read a single post by him is to feel as if one has read it a thousand times).  Countless standard-issue speeches by conservative politicians are aimed, in part, at achieving precisely the same goal that Barnett and Levey contend is behind the left's talk: namely, to argue that the left wing of the Court is acting illegitimately and is purely political, and thus to threaten or chasten them.  Did Levey, moreover, forget delegitimating rhetoric, and sometimes legislation, within the last ten years or so on the part of members of Congress like Rick Santorum and Tom DeLay?  Or that the successful attacks on Abe Fortas's ethics were not a stand-alone action, but were deliberately followed by efforts to draw Justice Brennan into similar ethics controversies?  Or similar attacks on Judge Reinhardt (which, like those on Thomas, had some legitimate foundation, whether they are ultimately right or not) or Judge Vaughn Walker?

Finally, I am not sure of the connection between "baseless" and "politically motivated" in Barnett's argument.  If an attack on a justice's ethics is baseless, I ought to dislike it whether it is politically motivated or not.  If it is warranted, I'm not sure how much I ought to object to the shocking -- shocking! -- possibility that it is also politically motivated.  The attacks on Fortas were warranted; they were also entirely politically motivated.  If Barnett thought the attacks on Thomas were more warranted than he appears to believe they are, would he still say that it makes a difference that they are politically motivated?  Conversely, would he say that it was wrong for the Republicans, including then-Congressman Jerry Ford and Attorney General John Mitchell, to have investigated and attacked Fortas even though there was a basis in fact for those attacks, simply because they were obviously politically motivated?  If one believed that Thomas genuinely ought to recuse on the healthcare litigation (I'm not saying he should, although I doubt Thomas will be eager to supply me with the information to make that decision), would it somehow be odd that the people most likely to press that case would also be the people most likely to gain from it?  

It seems to me that Barnett's focus on motive, in the end, brings very little to the table.  The real work is done, in his case and Levey's, by first lumping together the baseless and the less baseless criticisms of the recent behavior of justices like Thomas and Alito, and then using the latter to treat the former as utterly without foundation.  But there is a difference between the two, which is why Alito and Scalia have found many liberal defenders on these issues and have been the basis of no real concerted efforts to question their ethics in any formal fashion, while Thomas has been a lightning rod for politically motivated but legitimate criticism.  Everyone has motives for action, and in politics those motives are generally political.  I may find that distasteful.  But I don't think Barnett or Levey have made anywhere near a strong enough case that what is going on here is unprecedented, limited to the left, illegitimate because politically motivated, or illegitimate because lacking in foundation.  

I will agree with Barnett in one particular: these kinds of actions bear watching, and one may certainly find them distasteful.  (Incidentally, I also find the web of favors, subsidize private plane trips, donations to spouses, and mutual back-slapping among the rich and powerful that characterizes some of the Thomases' conduct equally distasteful, and I don't much care for that kind of behavior among the left elite either.  A great many people in this world, including Justices, seem to have an undue attachment to being complimented by rich folks.)  I'm not sure whether one really can or need say more than that, rhetoric about the rule of law and the separation of powers notwithstanding. 

Second Annual Law and Religion Roundtable

I've just returned from Chicago, where Northwestern University Law School kindly hosted the second Annual Law and Religion Roundtable.  The co-organizers were Nelson Tebbe of Brooklyn, our own Rick Garnett, and myself, and Andy Koppelman served as Northwestern's able and generous host.  I really can't say enough about the conference.  The list was incredible, comprising many of the most prominent American law and religion scholars (Doug Laycock, Kent Greenawalt, Steve Smith, Steve Shiffrin, Marci Hamilton, Chris Eisgruber, etc., etc.), many more junior but very prominent figures in the field (Adam Samaha, Caroline Mala Corbin, Jessie Hill, Marc DeGirolami, etc., etc.), and some very prominent folks who have written less regularly about law and religion but are helping to shape current debates in the field with their own interventions (most prominently Brian Leiter of Chicago).  The format was excellent: the presenters didn't offer overlong introductions, most of the time was reserved for questioning and dialogue.  It was superb, and I'm grateful to my fellow attendees for teaching me so much.

Two observations about the conference.

 First, books seem to be the order of the day in law and religion.  (I include myself.  Have you read my groundbreaking book The Agnostic Age?  Please do!  See the Amazon link at right.)  We heard presentations of manuscripts from Leiter, DeGirolami, Koppelman, Kathleen Brady, John Inazu, Alan Brownstein, and others, and Rick Garnett is also at work on a book.  I don't know whether this signals a particular desire in the field to consolidate or advance current arguments, or a broader movement in the legal academy back toward books rather than articles, but I was delighted.  I would note that at least some of the people writing books in this area are untenured or relatively junior faculty, which goes against the usual expectation in the legal academy that if one writes a book at all, one should do so only after doing the requisite number of articles for tenure.  So much the better, as far as I'm concerned.

The second is to note two common themes that appeared in many of the papers.  The first was the perennial question, "Is religion special?"  I attribute this interest largely to three people: Antonin Scalia, whose Smith decision continues to prompt efforts to define religion as special to overcome or get around Smith; Chris Eisgruber and Larry Sager (for present purposes, I will treat them as one composite person with an unusually large number of hands and feet), whose  work on Equal Liberty has many of us asking whether equal liberty is all there is in law and religion; and Brian Leiter, whose recent work asking whether, at a foundational moral level, there is a basis for treating toleration of religion differently from toleration of other claims of conscience, has offered a great challenge to the field.

The other common theme, interestingly to me given my own work in the area and my forthcoming book, First Amendment Institutions, was the institutional component of freedom of religion, sometimes discussed under the general rubric of "freedom of the church."  I asked at the conference why people think there is such a resurgent interest in this subject.  Some suggested it is simply because of the general academic need for novelty, given that other doctrinal areas have been picked over so well already.  Others suggested that it is a continuing effort to get around Smith.  Certainly the Hosanna-Tabor case to be heard before the Supreme Court, putting the ministerial exception in the spotlight, helps, and the Northwestern University Law Review Colloquy will be publishing a series of short pieces from the conference about that case.  And I suppose it's possible it simply represents a rearguard action by members of religious groups in light of phenomena like the clergy sex abuse scandal.  But I have noted an interest in this idea from non-religious individuals, or those not strongly affiliated with particular faith groups, as well; and there are echoes of it elsewhere in First Amendment scholarship as well.  I think it is interesting to see the ways in which an institutional focus has captured a disproportionate amount of scholarly attention in current First Amendment scholarship, including law and religion scholarship, and to reflect further on why.  

Again, thanks to all for a great conference.

Distance learning programs

I've never taught in a distance learning program. I know that MBA and MPA programs frequently offer such opportunities. (I'm not talking about a semester in another country programs, but rather courses regularly offered in outlying areas). Are such programs 'money makers'? Should they be? What are the benefits and costs of offering them? Should law schools go this route?

Tony Bertelli - (USC School of Policy, Planning and Development - joint appointment with the law school) provides some insights on such programs in a recent blog post:

Starting in August, I will be teaching a distance course at the MPA (Master’s of Public Administration) level for the first time.  The School of Policy, Planning and Development is launching a new distance program this fall and my course is among the initial offerings.  The distance medium is intensely challenging for a beginner like me.  Why am I doing this?  Here is one reason.

I’ve become convinced that distance teaching in MPA programs is important.  Back in 2007, I wrote a paper about turnover intention in the federal service that launched an interest the sustainability of the public sector workforce.   Around the time I published my study, an OPM report suggested that about 18 percent of the federal workforce had become eligible to retire and that the median length service after becoming retirement eligible was four years.  In the 2010 Federal Employee Viewpoint Survey, fully 42% of the more than 247,000 respondents reported being with their current agency for longer than 20 years. Statistics for my home state of California are likewise striking with fully 51% of of the service comprised of Baby Boomers and only 11% Milennials according to the Department of Personnel Administration.  That imbalance warns that pre-service MPAs are not sending graduates into public service positions, and retirements are on their way.

Check out the rest here.

 

The On-Line Journal Editing & Publishing Process & Would I Do It Again?

The Editing Process

First, the editing process varied from journal to journal. One essay (Northwestern) received the heaviest edits I’d ever received on any of my law review submissions to date, which improved the piece significantly. The biggest issues revolved around wanting more extensive footnoting and more support for some of my statements. To meet word count, I had omitted support for some historical points that are fairly widely known and been a little loose with omitting pin cites and parentheticals. So, my general observation about on-line law reviews’ citation practices did not hold true for Northwestern. Northwestern selects a small number of the on-line articles for print in the regular issue; the editors were pushing the essay toward a traditional format and mentioned that as their reason for doing so (although I have no idea whether the essay will ultimately be selected).

The shortest one (Wash. U.) received relatively light edits, but the piece was very straightforward. I agree that it didn’t need much. (FYI: Wash. U. publishes the on-line articles in the regular issue.) The mid-length article (5,000 – 6,000 words in Penn.) received the average number of comments I tend to receive on traditional submissions.

Will I Publish On-line Again?

Yes. I really like the short turnaround time. I do think this is the wave of the future.

I don’t think I’ll aim to do three at one time again, however. When I catch my breath (some day), I plan to write a few op-eds. Someone I know who has done many of those generously has offered to help me develop and place some. So, that’s what I’ll try next. If I’m back on Prawfs after that time, I can let you know how that goes.

Correction on my account of PLIVA: Kennedy's still on board with the anti-preemption canon

Write in haste, repent in leisure: Justice Kennedy did not join Part III(B)(2) of the majority opinion, which is the part endorsing Caleb Nelson's theory of preemption. So we still have five votes for an anti-preemption canon and four squarely in favor of abolishing it. Sloppy of me to miss the fine print: Apologies to all.

And phew!

The Nationalistic Fruits of Legal Formalism: How Caleb Nelson has single-handedly destroyed the presumption against preemption

To the dismay of all friends of federalism, the Court ruled for the petitioners today in PLIVA, Inc. v. Mensing, a decision expanding the concept of "impossibility" preemption based on the sort of formalism that only Justice Thomas could love. The worst of PLIVA is not the result of reviving "impossibility preemption" (which is bad enough) but the Court's wholehearted embrace of Caleb Nelson's textualist reading of the Supremacy clause, a reading that, if taken seriously, overrules any "presumption against preemption" under Santa Fe Elevator. The most disheartening aspect of the opinion is that Justice Kennedy joined in this endorsement of Caleb's pro-preemption theory -- a theory that makes nonsense out of Kennedy's own opinion in Gonzales v. Oregon, which relied heavily on precisely the anti-preemption canon that Caleb's theory rejects. This is bitter fruit for anti-preemption folks like myself to swallow after Williamson v. Mazda and Chamber of Commerce v. Whiting. Our only hope is that the same absent-mindedness that caused Justice Kennedy to reject his own past reasoning will make PLIVA a short-lived debacle for the anti-preemption canon.

The issue in PLIVA was whether a manufacturer of a generic drug could be held liable for negligently labeling that drug under state law, when federal law gave the manufacturer of generics no obvious way to change the challenged label. beyond persuading the FDA to change the labeling rules for the brand-name drug of which the generic was a knock-off. PLIVA -- a manufacturer of generic drugs -- argued that it would be impossible for it to modify the label for its drug, because, unlike the manufacturer of brand-name drugs, the manufacturer of generics cannot change a label pursuant to the "changes-being-effected" (CBE) provisions of the FDCA. Instead, everything about a generic -- the manufacture, design, and label -- must be identical to the characteristics of the brand-name drug of which the generic is a copy. This is how, indeed, manufacturers of generics can avoid the lengthy drug approval process that brand-name manufacturers must endure. Given that federal law made illegal that which state tort law required -- namely, an alteration of the federally approved label -- the Court found that it was impossible for PLIVA to comply with the state tort duty.

Here, however, is the paradox: The manufacturer of a generic drug is still obliged to inform the FDA of any inadequacies in the approved label. Indeed, if PLIVA knew that the label were inadequate -- say, too bland in warning of risks of brain damage from long-term uses of a drug -- then PLIVA would be in violation of the FDCA for peddling a misbranded drug. Everyone knows that the FDA relies on drug manufacturers to supply the agency with data about potential problems with drug labels: The FDA simply lacks the personnel to update labels and drugs in an optimal fashion. In some practical sense, FDA does not control the drug makers: Pharma controls the FDA, by controlling the FDA's access to data about post-marketing problems with labels, side-effects, etc. So why should not PLIVA not be required, as a condition of asserting the defense of preemption, to show that it did not breach any federal duty to inform the FDA of possible problems with its label before asserting that PLIVA's hands were tied by federal law?

Here is where Justice Thomas offered two extraordinarily formalistic responses -- one that embraced an extreme formalism in statutory construction and the other, in constitutional law.

Regarding statutory construction, Justice Thomas argued that the state-law duty was not a duty to keep the FDA updated: State tort law imposed a duty to change the federally approved label. Therefore, the specific action sought by the respondents was rendered impossible by federal law, even if a different action (petitioning the FDA for a revision of labeling rules) was not. Justice Thomas acknowledged that this theory meant that generic drug makers would receive more protection through federal preemption from state-law tort suits than makers of brand-name drugs. Justice Thomas further acknowledged that such a difference was weird, given that generic drugs were supposed to be identical to brand-name drugs. Too bad: One had to follow the strict logic of preemption even into the land of bizarre: "it is not this Court's task to decide whether the statutory scheme established by Congress is unusual or even bizarre," he intoned. SCOTUS is just following statutory orders.

Thus, a federal statute utterly lacking any preemption clause can be invoked by a generic drug maker to preempt state tort duties even if that drug maker is in blatant violation of that self-same federal statute -- even if reports are pouring over the drug maker's transom that the label ignored horrible risks. The drug maker could even suppress those reports in violation of federal law and yet invoke the federal law that the drug maker violated as a reason to defy state tort law -- because the federal law (that the drug maker otherwise ignored) forced that drug maker to ignore risks (of which the drug maker was completely aware). When a court reaches a conclusion so utterly senseless, then it is time to ask whether the reductio to such absurdum might suggest a flaw in the premises.

Instead, the PLIVA majority took a one-statute train wreck and converted it into a disaster for statutory construction more generally, by endorsing Caleb Nelson's disastrous theory of Article VI's supremacy clause. In brief, Caleb would resurrect a sweeping view of Article VI in the name of a textualist and originalist vision of the Constitution that the Court has otherwise completely ignored when construing Congress' enumerated powers. On Caleb's theory, the final "notwithstanding" in Article VI's Supremacy clause is, in fact, a term of art -- a non obstante clause indicating that the canon against implied repeal, which normally would strain to construe federal law not to repeal pre-existing state law, should be waived. According to Caleb, this suggests that any anti-preemption canon of construction is contrary to the text and original semantic meaning of Article VI.

I have elsewhere denounced Caleb's admittedly brilliant but entirely pernicious exposition of Article VI's non obstante clause. The basic objection is that it makes no sense to enforce strictly the non obstante clause in Article VI while vastly under-enforcing the limits on Congress' enumerated power implied by Article I, section 8. The non obstante clause was the Federalists' quid in return for which they had to give up the quo of unlimited federal power. But -- as Justice Thomas himself has frequently complained -- the Court does not really enforce those limits according to the terms of the original compact. (Surely, Caleb would agree?) To enforce the letter of the non obstante clause but not the letter of the enumeration in Article I is to distort the Constitution from a balanced bargain into a hyper-centralized Leviathan that no one -- not Federalist, not Anti-Federalist -- ever endorsed.

Indeed, the Court has been repeatedly on record as rejecting the non obstante principle by endorsing its opposite -- an anti-preemption canon of construction that tries to preserve state law from federal preemption whenever possible. The essence of the canon is that if federal law is amenable to a construction that will avoid gratuitous preemption of state law, then such a construction is to be preferred. As Justice Kennedy stated in Gonzales v. Oregon, "the background principles of our federal system ... belie the notion that Congress would use such an obscure grant of authority to regulate areas traditionally supervised by the States’ police power." Caleb's whole theory is that these "background principles" count for nothing when construing federal statute's preemptive effect. How could Kennedy then so cavalierly abandon what he had so recently endorsed?

My suspicion: Caleb's scholarship seems so technical and artlessly apolitical that it is hard to see that it upends the entire jurisprudence. His article comes off as balanced, careful, expert, historically erudite, legalistic -- the sort of loving gloss on mossy old doctrines that could not possibly have radical implications. It is indeed all of these good things -- but it is also a radical subversion of federalism as we know it. Let's hope that the Court figures out that it has abolished federalism in a fit of absent-mindedness before Caleb's principle burrows even deeper into the U.S. Reports.

"Women Rethinking Equality" Explores Popular Culture, Rape Law

Just back from AALS "Women Rethinking Equality" workshop, a terrific, dense offering of thought-provoking talks.  My experience of it was shaped by two break-out sessions on gender & criminal law, attended by a group of folks who teach crim and family law, participating in various configurations as presenters, moderators, commentators, and audience-members.  Among other themes, this pair of workshops raised questions about how rape law might be altered by changing popular attitudes towards sexuality. 

Michelle Oberman and Katharine Baker presented a fascinating work-in-progress "'My Milkshake Brings All the Boys to the Yard': An Examination of Contemporary Sexual Norms on Women's Equality and Rape Law." Their paper contemplated the potential effects of "hook-up culture" on ideas about women's sexual availability, and how the concept of "consent" should be constructed in response to these cultural developments.  Deborah Tuerkheimer followed this up with a presentation about "pattern" evidence in rape shield law, examining how judgments that courts make about women's sexuality are complicated in an era of changing mores.  Cheryl Hanna completed the theme by presenting her paper, "Rethinking Consent in a 'Big Love' Way," which uses the popular series "Big Love" to consider ideas about agency and consent.   These themes were further highlighted through commentary by Bennett Capers, whose article on male victimization, "Real Rape Too," was the subject of one of my prior posts, and by Leigh Goodmark, whose  forthcoming book examines DV law, anti-essentialism, and the role of the state.  By the end of the workshop,  I was re-considering once again how I might approach the teaching of rape law.

Omar and the Suspension Clause, Part II

The more I re-read Judge Kavanaugh's majority opinion in Omar v. McHugh (holding that the REAL ID Act does not violate the Suspension Clause to the extent that it bars individuals not in removal proceedings from challenging their transfer to another country on the ground that they credibly fear torture or other forms of mistreatment there), the more baffled I am by the court's "historical" analysis of the Suspension Clause.

As I tried to explain yesterday, the majority's analysis rests on a faulty premise--i.e., that if Congress has the power to repeal the underlying basis for habeas relief (here, the Foreign Affairs Reform and Restructuring Act of 1998, or "FARRA"), it must have the "lesser" power to take away federal habeas jurisdiction to provide such relief (even as it leaves FARRA intact). This view, which recived strongest sanction in Justice Scalia's dissent in St. Cyr, just doesn't hold up to scrutiny (as such, and unsurprisingly, it wasn't invoked by either Scalia or Chief Justice Roberts in their separate dissents in Boumediene).

But back of Judge Kavanaugh's analytical misstep is a deeper (and more troubling) mischaracterization of the role that history (and precedent) should play in Suspension Clause analysis.

Consider this passage from the majority opinion:

In habeas cases, we seek guidance from history “addressing the specific question before us.” Here, the history is clear on the specific question before us. Historically, a would-be transferee such as Omar has possessed no right to judicial review of conditions the transferee might face in another country. As the Court said in Munaf: “Habeas corpus has been held not to be a valid means of inquiry into the treatment the relator is anticipated to receive in the requesting state.” Instead, as Munaf explained, history demonstrates that “it is for the political branches, not the Judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments.”

First, although the quotation from Munaf is accurate, it doesn't bear the weight Judge Kavanaugh would place upon it. (If it did, the Supreme Court's decision would've been law-of-the-case, and all of this would've been moot). Instead, Munaf went out of its way to reserve the precise issue decided in Omar--whether a properly pleaded FARRA claim provided a basis for habeas relief not otherwise provided by the Due Process Clause or any other federal law. [See especially footnote 6 of Chief Justice Roberts' opinion and all of Justice Souter's concurrence.]

Second, and related, this reasoning is a perversion of what Boumediene meant when it said that "history" matters in understanding the Suspension Clause. It simply isn't the case that "a would-be transferee such as Omar has possessed no right to judicial review of conditions the transferee might face in another country." It's just that, prior to FARRA's implementation of the UN Convention Against Torture, nothing other than the Due Process Clause would have provided a constraint on the government's power to transfer/extradite/remove an individual who credibly feared mistreatment where he was being sent. In other words, Judge Kavanaugh assumes that, because there were no meritorious cases prior to FARRA, there must not have been a right to judicial review.

But this assumption fails both as matter of history and logic. Taking the history first, it is now well-established (by Paul Halliday, among others, as I've explained) that writs of habeas corpus could be (and often were) used to challenge potentially unlawful transfers in pre-revolutionary England. Thus, at the time of the Founding, it was an accepted part of habeas practice in England to use the writ to challenge transfers to potentially unlawful overseas custody. And so if the Suspension Clause protects, "at a minimum," the writ as it existed in 1789, it should protect that... This says nothing of whether the overseas custody actually is unlawful, but that's the whole point--it's a merits question, not jurisdictional.

And even if the history didn't bear this out (or didn't matter), the majority's logic still doesn't follow. Assuming arguendo that there was no right to judicial review before FARRA (on the ground that there was no basis for relief), it doesn't follow that there is therefore no right after FARRA (which now provides a basis for relief). This is why Omar is at once so important and so wrong: Prior cases (see, e.g., Johnson  v. Eisentrager) have erroneously conflated, or been read to conflate, the lack of a merits claim with the lack of habeas. But Omar is the first appellate opinion with which I am familiar in which a U.S. court has held that, where the Suspension Clause applies, it is not violated by an Act of Congress that takes away habeas jurisdiction and fails to provide any alternative remedy, even while leaving the underlying claim for substantive relief intact. Eisentrager never said as much. Munaf never said as much. Kiyemba II never said as much.

The short of it is that Omar calls into question any reading of the Suspension Clause as protecting any claim for relief not grounded expressly in the Constitution. That's a terrifying prospect, and it is just plain wrong.

Update: It's probably worth noting that the en banc Ninth Circuit case I mentioned yesterday that could raise a similar constitutional issue--Trinidad y Garcia v. Benov--is being argued later this morning in Pasadena...

Certain Expenses Concerning U.S. Military Operations Against Libya

In its canonical Certain Expenses advisory opinion of 1962, the International Court of Justice made clear that military activity carried out by member states in the context of peace keeping operations in the Congo and along the Suez authorized by the General Assembly amounted to United Nations activities, which were therefore to be treated as expenses of the United Nations, funded from member contributions.   France and the Soviet Union objected to U.N. involvement in peacekeeping in the Middle East and Congo, but they could not legally withhold their required contributions to the United Nations on account of those objections.  United Nations skeptics might retort that even though the I.C.J. is the judicial arm of the United Nations, the U.N. has no concrete power to enforce an advisory opinion, and even I.C.J. judgments cannot be enforced against a recalcitrant state absent a Security Council Resolution authorizing sanctions against that non-complying state.  And yet both France and the Soviet Union eventually paid the money they had withheld from the U.N. in protest against U.N. action in the Suez and Congo, much as the United States finally paid its assessed contributions after much protest against U.N. policies in the late 1970s, the 1980s, 1990s and 2000s.

Since member states are obligated to fund United Nations activities including peacekeeping by member states authorized by the General Assembly even though the text of the U.N. Charter does not plainly convey the power to authorize peacekeeping on the General Assembly, it seems to me that United Nations enforcement actions authorized by the Security Council pursuant to its unambiguous authority under Chapter VII of the Charter are, a fortiori, expenses of the United Nations to be funded by member states.  This would make the military activity of certain U.N. member states, including the United States, against the government of the Libyan Arab Jamahiriya authorized in Security Council Resolution 1973 of March 17, 2011 United Nations activity to be funded as United Nations expenses from member contributions.   Unless I am missing something, the United States should be able to seek reimbursement from the U.N. for its military activity against the Libyan government.  The U.S. share of the United Nations budget is now approximately 22%, so approximately 78% of the costs of U.S. operations in Libya should be funded from the contributions of other member states.   Of course, ultimately the U.S. should have to contribute U.N. funds totaling 22% of the costs borne by other U.N. member states in the U.N. authorized operations against the Libyan government.   Perhaps the U.S. “refund” and the U.S. contributions to other member states’ operating costs will even out.  But I am mystified as to why public discussion of the costs of the operations against Libya does not (as far as I know) make any reference to the Certain Expenses case and the character of the operations against the Libyan government as United Nations activities.   Am I missing something obvious?  If not, it strikes me as worth public notice that one material difference between U.S. participation in illegal wars of aggression violating Article 2(4) of the U.N. Charter and U.S. participation in United Nations authorized enforcement actions pursuant to Chapter VII of the Charter is that the U.S. will be required to bear the full costs on its own respecting the former, while in the case of the latter, U.S. military action comes at a 78% discount.  

Groups and Wal-Mart

I want to continue discussing the Wal-Mart case by shifting away from the procedural issues addressed by the Court to discuss the underlying issue of Title VII liability.  At the New York Times Room for Debate a number of prominent scholars discuss the impact of the Wal-Mart decision, with most of the contributors discussing the impact of the decision on Title VII liability, not on class action practice.  

I agree that the decision is consistent with recent decisions where the Court has expressed hostility towards disparate impact liability, or liability for a practice or policy that negatively impacts race or gender, even in the absence of discriminatory intent.  But some of the contributors go further, and suggest that the hostility towards extending liability to the conduct at issue in Wal-Mart is based on a failure to recognize a group or structural right.  As put by Professor Richard Primus, by narrowing disparate impact liability and the class action "the court pushes the law toward [an] individualistic vision of sex discrimination."  Likewise Professor Ralph Richard Banks writes that the supposedly procedural holding "gives too little weight to the principle of group equality in the workplace."

While I agree with the substance of these contributions, I disagree with framing the issue in Wal-Mart as one between "group" or "structural" inequality and individual rights.  I myself used a similar conceptual framework in prior work, but the plaintiffs' theory of Title VII liability is fully consistent with "the law’s focus on discriminatory acts against individuals."   And by relying on concepts such as groups or structure, academics run the risk of being ignored by the courts.

Although it is a bit unclear from the Supreme Court's opinion, (but see p. 4), the plaintiffs' actually presented a claim of disparate treatment, not impact.  They alleged that the policy of delegating pay and promotion decisions to lower-level managers, combined with a corporate culture that encouraged sex stereotyping, lead to less women getting pay increases or getting promoted.  The plaintiffs were not simply relying upon the discriminatory results of this policy, but argued that Wal-Mart's awareness of these results, without doing anything about it, supported an inference that Wal-Mart had discriminatory animus against women.  

You may question the plausibility of that inference, but let's run with it.  Suppose that Wal-Mart, in fact, was out to get women.  But, being a smart company, didn't want to be overt about it.  It did know, however, that if it delegated pay and promotion decisions to lower-level employees, they can really stick it to women and claim plausible deniability.  In fact, it stands to reason that too much lower-level discretion will, on balance, have an negative impact on female employees.  So Wal-Mart goes forward with the plan and covers its tracks, instilling a uniform corporate culture to make sure the plan succeeds.  This may sound far-fetched, but frankly I think it's crass that Wal-Mart knows that this is going on and is not doing anything about it.  How is that not discriminatory treatment?  Moreover, it is not uncommon for larger companies or organizations to effectively judgment-proof themselves by relying upon subordinates or other actors to carry out their dirty work.  Indeed, companies can do all sorts of things that can cause the violation of important individual rights, like failing to make sure that safety equipment was working properly on an oil rig, violating the individual tort rights of thousands.  

But the larger point is that this story does not need to resort to "structure" or "groups" to understand why liability should attach.  The Wal-Mart female employees each have an individual right to be free from discrimination on the basis of gender.  That individual right is protected by Title VII.  Wal-Mart allegedly acted in a discriminatory way that violated those individual rights.  That's it!  There is nothing fancy or complex about the above analysis.  It's the Supreme Court that has gunked up this simple analysis, holding, for example, that a supervisor's knowledge that prisoners of Middle-Eastern descent are being discriminatorily beatened but doing nothing about it is not discriminatory conduct, or, as in Wal-Mart, concluding that a policy to delegate decisions is not a policy.

Now, I can speculate as to why the Court jumps through conceptual hoops to limit the liability of certain actors, but the underlying "focus on discriminatory acts by individuals" does not need to be abandoned, at least not yet in Wal-Mart.   There is a place for discussing groups and structure, and the Court has recognized these concepts in the past, but we should be careful about abandoning old concepts too easily. The risk is that by not speaking the same language as the courts, academics will not only insult judges, but prove Chief Justice Roberts's point that legal scholarship is not "particularly helpful for practitioners and judges."

The D.C. Circuit Vitiates the Suspension Clause (in a Non-Guantanamo Case, To Boot)

I've written before (both here and more formally) about the post-Boumediene Guantanamo litigation in the D.C. Circuit, and the extent to which I've been at least somewhat unconvinced by the charge that the Court of Appeals has been engaged in a massive conspiracy to subvert the Supreme Court's 2008 decision, recognizing that the Guantanamo detainees are entitled to pursue meaningful habeas relief in the federal courts. 

That was until yesterday.

Now, and in a non-Guantanamo case, to boot, a divided panel of the D.C. Circuit has effectively held that Congress has the power to divest the federal courts of jurisdiction over a claim that an individual's detention is unlawful. As I explain below the fold, the majority's efforts to disitnguish Boumediene notwithstanding, yesterday's decision in Omar v. McHugh creates a far more serious tension with that Supreme Court decision than anything the Court of Appeals has held thus far vis-a-vis Guantanamo, and in a manner that was completely unecessary to reach the same holding. Put simply, if the D.C. Circuit is right, then Boumediene is a pretty weak precedent, indeed.

First, the background. Omar is the decision on remand in one-half of the case that the Supreme Court decided on the same day as Boumediene, Munaf v. Geren. In Munaf, the Supreme Court held that the federal courts have jurisdiction to entertain habeas petitions brought by U.S. citizens detained in Iraq under the auspices of the "Multinational Force-Iraq," who sought to block their transfer to Iraqi custody on the ground that they credibly feared torture or other forms of persecution if transferred. The Court then went on to reject the detainees' claims on the merits, holding that, because the government averred that the detainees did not credibly fear mistreatment if transferred, and because the detainees had not offered evidence contraverting the government's assertions, they had no entitlement to habeas relief. As Chief Justice Roberts noted in a key footnote, "We hold that these habeas petitions raise no claim for relief under the FARR Act and express no opinion on whether Munaf and Omar may be permitted to amend their respective pleadings to raise such a claim on remand." (emphasis added).

On remand, Omar properly raised his claim under the "FARR" (Foreign Affairs Reform and Restructuring) Act, i.e., that his transfer to Iraqi custody would violate the principle of non-refoulment enmeshed within the U.N. Convention Against Torture and implemented in FARRA. But the district court held that jurisdiction was foreclosed by the REAL ID Act of 2005, part of which (8 U.S.C. § 1252(a)(4)) provides that,

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision ... a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture.

Thus, the REAL ID Act effectively precludes FARRA-based habeas relief, and, as a result, any remedy for FARRA-based claims where the detainee is not subject to (or able to utilize) immigration removal proceedings. In so holding, the district court concluded that the D.C. Circuit had already resolved this question in Kiyemba II. And yet, even if this is true, Kiyemba II nowhere confronted or passed on the argument that, so construed, the REAL ID Act would violate the Suspension Clause.

That's where yesterday's decision comes in. Writing for himself and Judge Ginsburg, Judge Kavanaugh specifically concluded that the REAL ID Act does not violate the Suspension Clause, even though it cuts off a detainee's access to any judicial remedy for allegedly unlawful detention. In particular, Kavanaugh's opinion picks up the analytical thread underlying Justice Scalia's dissent in INS v. St. Cyr, i.e., that Congress can take away habeas jurisdiction over claims for which Congress did not have to provide a forum in the first place. Thus, because Congress didn't have to enact FARRA, Congress could, by statute, remove the power of the federal courts over such claims. As Judge Kavanaugh wrote,

even if the REAL ID Act took away a statutory right that the FARR Act had previously granted, that scenario poses no constitutional problem. Congress does not amend the Constitution, or alter the scope of the constitutional writ of habeas corpus, whenever it amends a statutory right that might be available in a habeas case. Congress thus remains generally free to undo a statute that applies in habeas cases, just as it can undo other statutory rights that it has created.

This is both true and beside the point, because the REAL ID Act did not actually repeal FARRA. It simply takes away jurisdiction while leaving the underlying substantive law intact. So unless FARRA never created a right not to be transferred in violation of CAT in the first place (which would be an odd result for a statute specifically designed to implement CAT), this analysis conflates Congress's power over subconstitutional rights with Congress's power over federal jurisdiction. Yes, Congress could simply repeal FARRA, which would unquestionably deprive Omar of any claim for relief. But so long as FARRA remains on the books, Congress cannot take away federal habeas jurisdiction over such a claim without providing an adequate alternative remedy. That's Boumediene: The Suspension Clause, where it applies, protects a detainee's access to a federal court for a habeas remedy (or an adequate alternative) for any colorable claim that his detention is unlawful.

In his concurrence in the judgment, Judge Griffith (reprising parts of his dissent in Kiyemba II) totally gets this distinction, noting at the ouset that:

When an American citizen is in U.S. custody, the Constitution's guarantee of habeas corpus entitles him to assert any claim that his detention or transfer is unlawful. Because Congress may not deprive Omar of access to the courts without suspending the writ or repealing the statutory basis for his claim, neither of which it has done here, we must consider his argument on the merits.

Griffith nevertheless concurs, because he believes Omar loses on the merits--that FARRA wasn't meant to cover cases in which the detainee is already in the country his transfer to which he is seeking to block. [I'll save thoughts on that issue for another time.] The relevant point for present purposes is that, unless the majority disagrees with Griffith's analysis on the merits (and I have a hard time believing that they would), this would have been a far less controversial (or damaging) ground on which to affirm the district court. That is, narrower grounds were easily available... Instead, the majority went out of its way to hold that REAL ID doesn't violate the Suspension Clause, based on an understanding of the Suspension Clause rejected by the majority in Boumediene. 

More to the point, this decision, if left intact, will have teeth. The en banc Ninth Circuit is currently considering a similar issue in Trinidad y Garcia v. Benov, an extradition case. And there are dozens of immigration cases every year in which petitioners are not in a position to raise CAT claims in a petition for review, and therefore run into REAL ID's bar on  pursuing CAT relief in habeas petitions. But even beyond REAL ID, if Congress can take away habeas jurisdiction over any claim for relief founded on a statute or treaty, Boumediene is virtually a dead-letter. After all, none of the Guantanamo detainees have constitutional claims as their central argument against the legality of their detention, and in any event, habeas is about unlawful detention, not unconstitutional detention.

Feedback loops - applications?

A recent Wired article "Harnessing the Power of Feedback Loops" tells the story of how such mechanisms can be used in a variety of ways to affect human behavior - to essentially get us to 'do the right thing'. Here's an explanation of how they work from the article:

A feedback loop involves four distinct stages. First comes the data: A behavior must be measured, captured, and stored. This is the evidence stage. Second, the information must be relayed to the individual, not in the raw-data form in which it was captured but in a context that makes it emotionally resonant. This is the relevance stage. But even compelling information is useless if we don’t know what to make of it, so we need a third stage: consequence. The information must illuminate one or more paths ahead. And finally, the fourth stage: action. There must be a clear moment when the individual can recalibrate a behavior, make a choice, and act. Then that action is measured, and the feedback loop can run once more, every action stimulating new behaviors that inch us closer to our goals.

A number of examples are provided, the most prominent being feedback loop signs that tell you how fast you're driving next to the posted speed limit. This reminds me of theories of athletic coaching that I've read about - how good coaches use low-key constant correction advice to get their players to change their performance in real time (or close to it). Apparently, now is the time for feedback loop devices as a public policy method, as the costs of one of the primary means of providing feedback loops - sensor technology - continues to sink.

While not all feedback loop applications require sensors, the rise of such technology should perhaps give us pause to consider how such mechanisms might be used in a wide number of settings. For instance, can it be used effectively in teaching (perhaps, not too different from coaching)? I occasinally use real time quizzes via powerpoint, but I never really thought of it as a feedback loop although I imgaine that there are similarities.

But, what about legal applications? Can we use it for more than just speeding? Will such mechanisms make us more likely to obey the law? Why do they work in the first place? Well, here's what the article said on that point:

So feedback loops work. Why? Why does putting our own data in front of us somehow compel us to act? In part, it’s that feedback taps into something core to the human experience, even to our biological origins. Like any organism, humans are self-regulating creatures, with a multitude of systems working to achieve homeostasis. Evolution itself, after all, is a feedback loop, albeit one so elongated as to be imperceptible by an individual. Feedback loops are how we learn, whether we call it trial and error or course correction. In so many areas of life, we succeed when we have some sense of where we stand and some evaluation of our progress. Indeed, we tend to crave this sort of information; it’s something we viscerally want to know, good or bad. As Stanford’s Bandura put it, “People are proactive, aspiring organisms.” Feedback taps into those aspirations.

With all of this in mind, I invite readers to suggest potential applications :-)

[H/T Tim Ferriss]

From the Terrible News for Legal Scholarship Dep't.

Just got an email that bodes poorly for us misbegotten lovers of legal scholarship.  Indeed, it sucks. Read it and weep:

After a distinguished, decades-long run, the law journals tables of contents current awareness service produced by the University of Texas Tarlton Law Library and the Washington and Lee University School of Law Library, Contents Pages from Law Reviews and Other Scholarly Journals, has ceased publication.  This move was precipitated by the retirement of key personnel at Washington and Lee, resulting in that institution’s opting to end its participation in the joint project.  Their decision affects both the domestic and the international services. We thank you for your support of the Contents Pages current awareness services offered through Tarlton, and welcome your feedback on how we can best meet your information needs. Barbara Bintliff, Joseph C. Hutcheson Professor in Law, Director of Research, Tarlton Law Library, Jamail Center for Legal Research, The University of Texas School of Law

 

 

The Constitutional Overtones of Wal-Mart

As I mentioned earlier, I am blogging on the Supreme Court's recent class action cases.  I want to continuing writing about Wal-Mart Stores, Inc. v. Dukes, which was released yesterday.  In my last post I argued that the majority opinion conflated the "commonality" requirement of Rule 23(a)(2) with a merits determination of the plaintiffs' claim.  I think that is a mistake in light of the function of the class action, as I argue in a recent paper and will argue here soon. 

But as a bit of set-up, I want to tease out the constitutional issues that lurk in the majority opinion, particularly the discussion of Rule 23(b)(2), which all of the Justices joined.  Lyle Denniston on SCOTUSblog does a fantastic job of discussing the constitutional issues implicated by the opinion, but I want to tease out in more detail the underlying view of due process that supports the Court's interpretation of Rule 23(b)(2).  In my view, Wal-Mart is a decisive turn in favor of providing defendant's interests in the class action context greater due process protection.   

In Wal-Mart the Court addressed whether the plaintiffs could certify Title VII claims for backpay under Rule 23(b)(2), which permits a class action when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole."  The plain terms of Rule 23(b)(2) suggest that a court cannot certify a class action for monetary relief like compensatory damages under Rule 23(b)(2).  However, the accompanying notes to the Rule state that "[t]he subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages," raising the negative implication that monetary remedies are available if they are not exclusive or predominant.  Relying on this language, a number of courts have permitted Rule 23(b)(2) class actions, mostly Title VII cases, for monetary remedies if they are an add-on or "incidental" to the injunctive relief requested.  In fact, the Court seemingly adopted the "incidental" approach used by the Fifth Circuit, which permits Rule 23(b)(2) class actions for damages where the damages would easily "flow" from the liability determinations supporting injunctive relief.  

But the Court ultimately rejected the application of Rule 23(b)(2) to the plaintiffs' backpay claims.  As an initial matter, the Court held that Rule 23(b)(2) presumptively does not apply to claims for monetary remedies, even if they are equitable in nature.  Again following the work of the late Richard Nagareda, the key distinction is whether the relief is "indivisible" to the class.   An injunction for one member is an injunction for all, but backpay requires an individualized inquiry, and thus is specific to each class member.  

The distinction between "indivisible" and "divisible" remedies matters mainly because of due process concerns.  Rule 23(b)(2) class actions are mandatory, in that they do not require a court to provide notice to the class members or an opportunity to opt out.  The premise is that if the remedy is indivisible, there is no point in a class member excluding herself from the action.  In Justice Scalia's words, notice and opt out rights are not required for indivisible remedies "presumably because it is thought (rightly or wrongly) that notice has no purpose when the class  is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause."  Not so for the divisible remedies.   When a remedy is divisible, such as a claim for backpay, the Court concludes that notice and an opportunity to opt-out are necessary to protect the plaintiffs' interests in their individual claims.   As in AT&T, Justice Scalia cites Philips Petroleum v. Shutts, a personal jurisdiction case, for the proposition that "[i]n the context of a class action predominantly for money damages we have held that absence of notice and opt-outviolates due process."

Now, recognition of a plaintiffs' claim as a property interest for due process purposes is nothing new.  But the Court goes further and suggests that defendants similarly have a protectable interest in defenses to claims.  This comes out most clearly when the Court considers the proposal by the Ninth Circuit to handle the backpay claims through "Trial by Formula" - essentially sampling a small number of claims and using them to extrapolate the value of the remaining claims.  The Court "disapprove[s] that novel project."  Here the Court does not cite due process, but the Rules Enabling Act, which forbids a Rule from "abridg[ing], enlarg[ing] or modify[ing] any substantive right."  The Court relies upon the statutory defenses available to defendants under Title VII, which they conclude would be "abridge[d]" if a district court employed sampling.  

Now, the Court did not invoke due process in discussing the defendant's defenses, but there is significant evidence that they would consider such "substantive right[s]" protectable interests.  In 2009, Justice Kennedy issued a statement on the denial of certiorari for DTD Enterprises, Inc. v. Wells, which was joined by Justices Sotomayor and Chief Justice Roberts.  The issue was whether a state court could order a defendant to pay for the costs of class notification.  Justice Kennedy concluded that the payment of notice costs was a deprivation of property under the Due Process Clause, which may never be recovered if the case proves to be meritless.  Thus, in Justice Kennedy's words, "there  is considerable force to the argument that a hearing in whichthe trial court does not consider the underlying merits of the class-action suit is not consistent with due process."  

Notice that the due process discussion in Wal-Mart garnered all of the Justices' votes, and that Justice Sotomayor signed on to Justice Kennedy's statement in DTD Enterprises.  Thus, there is a total consensus that defendants' rights are a matter of due process.  As Lyle Denniston notes, the Court will probably address the issue in Philip Morris USA, Inc., et al., v. Jackson (docket 10-735), where the Court will address directly whether individualized defenses are a property interest protected under the Due Process Clause.  Justice Scalia suggested as much in an order staying the state court's judgment in that case. 

A recent, excellent law review article by Mark Moller of Depaul has noted there is little historical support for viewing defenses as protected under the due process clause.  My own paper goes further, and argues that the focus on claims and defenses as the relevant property interests for due process purposes takes too blinkered a view of all of the substantive entitlements at stake.  After all, the whole point of Title VII is not to set in stone procedures for subsequent litigation, but to prevent gender discrimination.  As I will argue in subsequent posts, whether Title VII does prevent unlawful discrimination will depend a great deal on whether courts will be willing to relax other interests like a plaintiff's claim and a defendant's defenses.

How I Drafted and Placed On-Line Submissions

First, I looked at this very useful chart about on-line law reviews put together by Colin Miller at John Marshall Law School. Second, to maximize my placement odds, I decided to shoot for the shortest article that seemed to be acceptable to the most prestigious journals. I wrote 3,000 words on a current-event topic. Third, in accordance with what was the stated preference of most of the on-line journals, I used far fewer and less bulky footnotes than I ordinarily would and aimed to use on-line “link-able” sources where possible. My general perception from looking at the chart and poking around on web sites was that the on-line editors were not looking for the level of support in footnotes for every proposition as is so commonly required for traditional articles. That panned out for two of the three placements, as I’ll discuss in my next post.

It took me a few days to get a draft with which I was satisfied. I sent it out to about a half-dozen journals as I double-checked their descriptions of technical requirements and poked around on their web sites looking at what they had actually published. I changed font size and what-not for some of them. I had my first offer within a few hours. I did the typical, unseemly “shopping up” (what a horrible term, but I use it because you all know what this means) and asked for a little extra time to make the placement decision because I was on my way to the airport to travel for a few weeks when I received the call. At the airport, I finished about another half-dozen submissions and simultaneously requested expedited review in light of the first offer (and withdrew my submission from those I would not have accepted over the original offer). Very shortly, I received two other offers. The offer I accepted for the piece was from Penn, whose editors said that they would accept it if I would expand the piece to 6,000 – 7,000 words.

Rather than simply decline the other two very attractive offers, because the editors seemed really interested in the Nazi-looted art litigation, I offered to draft another submission they could consider exclusively. I set deadlines with them I could meet and wound up placing two more articles, one 3,000 words; the other 6,000 words.

After edits, all wound up being longer than the published word limits. If you look at the final articles published overall, most seem to exceed the published word limits.

In my next post, I’ll wrap up this little series about the on-line journals.

 

Note: Colin Miller updates his submission guide for the fall submission cycle in July. If anyone is aware of any new online law review supplements or changes in the policies of existing supplements, please e-mail Colin at [email protected]

Wal-Mart v. Dukes and Commonality

As I mentioned in my previous posts, I will be blogging on four class action cases the Supreme Court is deciding this term -  (1) AT&T Mobility LLC v. Concepcion; (2) Erica P. John Fund, Inc. v. Halliburton Co., No. 09-1403; (3) Smith v. Bayer, 09-1205; (4) Wal-Mart Stores, Inc. v. Dukes, No. 10-277.  

I have proceeded in chronological order, discussing both AT&T and Halliburton.  However, I want to skip over Smith v. Bayer to discuss the Wal-Mart decision, which was just released today, because I want to talk about one aspect of the case that dovetails well with my previous discussion of Halliburton.  I also plan on blogging some more on Wal-Mart because it implicates so many issues I touch on in my paper Mass Torts and Due Process.

Today I want to focus on probably the most controversial aspect of the majority opinion - the analysis of the "commonality" requirement of Rule 23(a)(2).  

As background, class actions in federal court are governed by Rule 23.  Rule 23(a) outlines four requirements every class action must satisfy, generally understood as (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.  If a proposed class action satisfies these four requirements, then it must fit within one of the three categories defined under Rule 23(b).

By its terms, the commonality requirement under Rule 23(a)(2) only requires that "there are questions of law or fact common to the class."  Since this requirement applies to all class actions, courts have historically interpreted it pretty broadly.   In fact, the majority opinion quotes an article by the late Richard Nagareda for the proposition that "'[e]ven a single  [common] question' will do."  (p. 19 (quoting Richard Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176 n.110 (2003))).  The commonality requirement should be distinguished from the predominance requirement of one of the Rule 23(b) categories, Rule 23(b)(3), which requires that "questions of law or fact common to class members predominate over any questions affecting only individual members."   The class action at issue here was certified under Rule 23(b)(2), which does not have a similar "predominance" requirement.

In Wal-Mart the plaintiffs proposed a class alleging that Wal-Mart engaged in disparate treatment against women in their pay and promotion policies, in violation of Title VII.  The one aspect of the case that has caused considerable confusion, making Justice Kennedy's head explode, is that Wal-Mart really didn't have any policies on pay or promotion.  Instead, Wal-Mart delegated these decisions to regional and store managers, who exercised near total discretion in deciding pay increases and promotions.  The plaintiffs contended that this excessive subjectivity, combined with a uniform "corporate culture" that was riddled with gender stereotyping, supported an inference of discriminatory treatment against women.  Indeed, what little guidance Wal-Mart provided, such as having managers look at an employee's willingness to travel, would have an obvious discriminatory effect on female employees.  

Here it is important to keep distinct the issue of whether Wal-Mart had a discriminatory policy against women on the merits and whether resolution of whether Wal-Mart had a discriminatory policy against women would be common to the class.  The distinction is fine but not exactly rocket science.  Suppose, for example, that plaintiffs filed a complaint alleging that Target had a discriminatory policy against natives of Fiji, and that the only "proof" of this policy is that Target puts Fiji water on the bottom shelf of the beverage aisle.  Would such an allegation survive summary judgment, let alone a motion to dismiss?  No.  But is the issue common to the class of Fijian workers?  Yes.  If true, it would be true for all Fijian employees, even though the evidence in support of that discriminatory policy is scant.

In this case the majority opinion (decided 5-4 on this issue) combines both inquiries.  Following the practice in many circuits, the majority confirmed that a court may look at the merits of a class action if it overlaps with a requirement for class certification.  But it then proceeds to conflate the merits of the plaintiffs' claim of a common discriminatory policy with whether such a policy would be common to the class.  It first rejects the expert opinion of Dr. Bielby, which used a "social frameworks" analysis to establish a common corporate culture rife with gender stereotyping, even though factual findings by the lower courts are supposed to be reviewed for abuse of discretion.  It then reviewed the remaining statistical and anecdotal evidence to conclude that it wasn't enough to establish a uniform policy "beyond the bare existence of delegated discretion."    Concluding that the evidence of commonality was "entirely absent here," the Court vacated class certification.*

Setting aside whether the Court was right as to the merits of the plaintiffs' evidence in support of a common pattern-or-practice, whether there is such a common pattern-or-practice is common to the class. That's all the "commonality" requirement requires!  As Justice Ginsburg points out in dissent, Rule 23(a)(2) "demands nothing further."

So why is this a big deal?  For starters, the Court's interpretation of Rule 23(a)(2) will not be limited to cases like Wal-Mart.  Rule 23(a)(2) applies to every class action.  The Court now seemingly requires a merits analysis of whether the plaintiffs have the "same injury" before certifying any class.

More importantly, the Court is requiring the plaintiffs to effectively prove their claims to get class certification, as the Fifth Circuit tried to do in the Halliburton case.  Now, the concern with looking at the merits before certifying a class  is understandable, especially given that class actions provide plaintiffs with pretty hefty leverage.  In fact, I am sure the Court was influenced by the size of the class action and potential liability in Wal-Mart.  But, as I argue in my paper Mass Torts and Due Process, and as I will argue in a subsequent post, this gets it exactly backwards.  Courts need to certify the class before requiring proof of the merits, not after.  Otherwise, you are forcing the plaintiffs to fight with one hand tied behind their backs.

*Indeed, and as Justice Ginsburg's dissent notes, the Court's interpretation of the commonality requirement mirrors the predominance requirement of Rule 23(b)(3), particularly when the Court notes that dissimilarities among the class members counsels against commonality.  While that may be relevant to whether common issues "predominate" in the litigation, it is irrelevant to whether common issues merely exist.

Inside Job

 

Last night I finally got around to watching the academy award winning documentary "Inside Job." I had been planning to watch it for some time, but somehow ended up finding other things to watch instead. I enjoyed it and found it to be very interesting, but I imagine that readers of prawfs might be split on its merits. A good number of professors (primarily business/economics ) get skewered pretty well in the interviews.

Here are some of my favorite quotes from the movie:

Andrew Sheng: Why should a financial engineer be paid four times to 100 times more than a real engineer? A real engineer build bridges. A financial engineer build dreams. And, you know, when those dreams turn out to be nightmares, other people pay for it

Michael Capuano: You come to us today telling us "We're sorry. We won't do it again. Trust us". Well i have some people in my constituency that actually robbed some of your banks, and they say the same thing.

(My paraphrase) "As I recall I was revising a textbook." (You'll have to watch the movie for context on this one)

On-Line Journals

A lot of people have questions about the on-line journals. I thought I’d provide some information about my experience to help others decide whether they would like to try their hand at placing an article in one. My experience was positive. So, my first post on this topic will cover why I chose to publish in an on-line journal.

Much of my scholarship concerns Nazi-looted art, which presents plenty of difficult legal, ethical, moral and policy issues. While I intend to keep writing about it in shorter articles and a forthcoming book, I intend to produce some more generalized law review articles over the next few years that build bridges between the cultural property/cultural heritage field to other fields. So, I’ll be getting down to fundamentals of property law, human rights, international law, constitutional law and restitutionary justice. I thought publishing a few shorter essays in the on-line journals, with shorter turnaround, would be the appropriate place to try to provide scholarship that could be cited to the courts in pending litigation. (Three cert petitions are currently pending before the Supreme Court concerning Holocaust-era art; the Supreme Court has asked the Solicitor General to appear in two thus far).

I also hope that publishing in the elite on-line journals will help my scholarship cross over into more of the elite flagship journals, especially as I aim to shift my scholarship a bit.

I’ll talk more about the experience in my next post.

Class Certification and Class Impact

As I have noted in my previous posts, I am blogging on the four class action cases the Supreme Court is reviewing this term - (1) AT&T Mobility LLC v. Concepcion; (2) Erica P. John Fund, Inc. v. Halliburton Co., No. 09-1403; (3) Smith v. Bayer, 09-1205; (4) Wal-Mart Stores, Inc. v. Dukes, No. 10-277. As many of you know, Wal-Mart has just been decided, and I am furiously reading it. 

In the meantime, I want to continue in chronological order by discussing Erica P. John Fund v. Halliburton Co., which was decided a couple of weeks ago in a terse, unanimous opinion by Justice Roberts.  As others have noted, the opinion itself is very narrow, and did not reach beyond the immediate issue before the Court.  But the opinion hints at a rising trend in class actions that, in my view, must be stopped.

The issue in Halliburton concerned the certification of a class of investors who were allegedly defrauded by the defendant, Halliburton, in violation of federal securities law.  The plaintiff class alleged that Halliburton made some fraudulent statements that caused the price of Halliburton stock to increase, and thus the investors were damaged by paying an fraudulently-inflated price for their stock. 

Now, fraud, even in the securities context, is nothing new, and the Supreme Court has looked to common law fraud in interpreting the requirements of securities fraud.  One element of a securities fraud claim is reliance - that the investor relied on the fraudulent statement to purchase the stock.  Suppose that an investor got a tip from her uncle to buy a share of Halliburton stock shortly after the fraudulent statements were made.  Further suppose that neither the investor nor the uncle heard the statements.  In one sense the investor is damaged because she bought stock at an artificially-inflated price.  But she did not rely on the fraudulent statement, because she would have bought the stock even in the absence of the statement.  Thus, no reliance, no fraud.

The element of reliance poses a problem for certifying a securities fraud class action, because whether an investor relied on the fraudulent statement is unique to each individual investor, resulting in a multiplicity of individual trials and making the class action seem less than worthwhile. To use the class action parlance, the issue of reliance is an "individual" issue that would tend to "predominate" in the litigation, making the class action not necessarily a "superior" procedure to individual litigation.

But the Supreme Court decided in Basic v. Levinson that the plaintiffs can presume reliance if the security was traded on an efficient market.  Under the theory, if the market is efficient, then the prices of securities reflect all available information, including the fraud.  Thus the investors relied upon the fraud by relying on the price.  I am not sure how this washes (what if you only rely upon price, not having heard of the fraud), but the "fraud-on-the-market" presumption has the added bonus of turning the reliance issue from an individual one to a common one.  Since reliance is now collectively presumed, you don't have individual issues predominating. 

The Fifth Circuit in Halliburton, relying on an earlier case, Oscar Private Equity Invs. v. Allegiance Telecom, Inc., did a clever end-run around the fraud-on-the-market presumption.  First, the Fifth Circuit relied upon some language in Basic suggesting that the presumption can be rebutted if the defendant can show that "market price would not have been affected by their misrepresentation."  Thus, if the defendant can show a lack of loss causation by "sever[ing] the link" between the statement and the price of the security, then no presumption.  Second, the Fifth Circuit pulled the old switcheroo by noting that a defendant will invariably "move to make 'any showing that severs the link,'" and since the burden of persuasion rests on the plaintiffs to prove certification elements, then the plaintiffs have to prove loss causation in order to get the fraud-on-the-market presumption.  Since loss causation is already an element of a securities fraud claim, the Fifth Circuit's approach would effectively require the plaintiffs to prove their claim before they can certify a class.  Indeed, the Fifth Circuit had exactly that result in mind when it noted that the class action "bestows upon plaintiffs extraordinary leverage, and its bite should dictate the process that precedes it."

Au contraire, according to the Supremes.  Justice Roberts opinion notes, correctly, that loss causation is a separate element of a securities fraud claim, and one that is not necessarily linked to reliance.  After all, one can show a lack of loss causation by showing that, even if the fraudulent statements had an effect on the stock price, other causes prevented a price inflation.  Since loss causation is a separate element and unrelated to reliance, the Court put the kibosh on requiring the plaintiffs to prove loss causation to claim the fraud-on-the-market presumption.

In closing the Court rejected an argument by Halliburton that the Fifth Circuit was really requiring "price impact" - that "the statement affected the market in the first place."  The opinion essentially says that loss causation, which is a familiar enough concept, does not equal price impact.

But the resort to "price impact" is in line with a move by some Courts of Appeals to require some common proof of classwide impact (sometimes referred to as "transaction causation") to certify a class, particularly in the antitrust and consumer fraud contexts.  In other words, rather than establish a presumption that can be later rebutted, courts are requiring plaintiffs to guarantee that every class member was injured. In fact, courts have been very hesitant to apply fraud-on-the-market presumptions outside the securities context.

I am writing on proof of classwide impact this summer, but I worry that this trend towards making plaintiffs prove classwide impact will have the same effect as the Fifth Circuit's end-run around the fraud-on-the-market presumption.  It would, in effect, saddle the plaintiffs with a proof requirement without the class certification needed to properly invest in the issue.  The function of the class action in equalizing the stakes between the plaintiffs and the defendant, and thus equalizing the incentives to invest in the litigation, is a point I stress in my recent article on mass torts.  Although the Supremes did not address the issue here, I hope they similarly put on kibosh on this requirement should it come up.

Wal-Mart Stores, Inc. v. Dukes is out

The opinion is here.  Footnote 8 might be of particular interests to academics who have been following the debate between Monahan, Walker & Mitchell and Hart & Secunda:

Bielby’s conclusions in this case have elicited criticism from the very scholars on whose conclusions he relies for his social-framework analysis. See Monahan, Walker, & Mitchell, Contextual Evidence of Gender Discrimination: The Ascendance  of “Social Frameworks,” 94 Va. L. Rev. 1715,  1747 (2008) (“[Bielby’s] research into conditions and behavior at Wal-Mart did not meet  the standards expected of social scientific research into stereotyping and  discrimination”);  id., at 1745, 1747 (“[A] social framework necessarily contains only general statements about reliable patterns of relations among variables . . . and goes no further. . . .  Dr. Bielby claimed to present a social framework, but he testified about social facts  specific to Wal-Mart”);  id., at 1747–1748 (“Dr. Bielby’s  report provides no verifiable method for  measuring and testing any of the variables that were crucial to his conclusions and reflects nothing more than Dr. Bielby’s ‘expert judgment’ about how general stereotyping research applied to all managers across all of WalMart’s stores nationwide for the multi-year class period”)

The late Richard Nagareda's work is also given extensive treatment in the majority and dissenting opinions.

See You at AALS "Women Rethinking Equality"

I am heading to D.C. today for the AALS workshop "Women Rethinking Equality."  I'm excited to be speaking on a panel on Gender & Criminal Law, moderated by Elizabeth Schneider, and including Cheryl Hanna, Michelle Oberman, Katharine Baker, Leigh Goodmark, and Melanie Wilson.  I'll be talking about my Gender & Criminal Law course, which I taught in an Inside-Out format last year, meaning that I taught at a correctional facility with half of the students coming from inside the facility, and half from my home academic institution.  (See the Inside-Out web site for more information about the program, which conducts trainings for professors several times per year).  I'll post about interesting events at the conference.  Hope to see some of you there!

Happy Juneteenth and Father's Day

Today is Juneteenth, the day we commemorate emancipation of the slaves after the civil war here in the US. It's also Father's Day, of course, so I hope it has been a day full of blessings and laughter for you and yours. Feel free to share any particularly insightful essays you might have come across lately on freedom and/or fatherhood in the comments.

Len Bias and historical counterfactuals

Today marks the 25th anniversary of the death of former University of Maryland basketball star Len Bias from a cocaine-induced heart attack. For sports fans of my age group, this is a significant where-were-you-when moment (I was at home studying for my last high school final exams). It was the subject of one of the best of ESPN's 30-for-30 documentaries and Bill Simmons talks about it as the singular event that changed the course of the Boston Celtics and all of the NBA through the late '80s and '90s. And it was a major catalyst for Congress creating the crack/powder disparity that still plagues federal sentencing law.

The assumption always is that Bias would have been an NBA superstar. He was the immediate heir to Larry Bird and would have kept the Boston Celtics (who had just won the NBA title) at the top of the league. And he would have been the truly worthy and equal rival to Michael Jordan in the 1990s. But I always have wondered whether that assumption is correct.

We know (or really, really strongly suspect) two things: 1) June 19 likely was not the first time Bias had used cocaine and 2) Dozens of players drafted in the mid-'80s had problems with cocaine, with several being suspended or kicked out of the league for cocaine use, including some potential stars. So is it equally reasonable to imagine a counterfactual in which Bias' career is similarly undone (or at least fails to live up to its fullest potential) by the league's pervasive drug culture of the time? Especially given that Bias' death itself was one of the major wake-up calls against the drug culture in sports, the event that told leagues, teams, players, and fans in a more explicit and dramatic way that cocaine was something to worry about.

Update: Here is the Salon piece that Joseph mentions in his Comment; it is an interview with Eric Sterling, who was counsel to the House committee that drafted the 1986 drug law and now is president of the Criminal Justice Policy Foundation. The irony of the legislation that was produced is that, we now know, Bias was using powder, not crack, the night he did.

More thoughts on the Supreme Court and the Davis Case

[Howard already beat me to the punch on this one, but I thought I would add in my two cents as well.]

Justice Alito may have been in the minority in the JDB case, but he wrote the majority opinion for the Court in Davis v. United States, a well watched case that had raised the question as to whether the exclusionary rule should apply in situations where the police have relied in good faith on law that was later overturned.  The search in question was a Belton search that became unconstitutional as a result of the Court's later ruling in Gant. 

As some of you may recall, frequent commenter and Volokh conspirator Orin Kerr argued the case for Davis before the Supreme Court and published a well-argued law review article on the subject too boot.  (So much for the concern that doctrinal scholarship does not appear in good journals and/or does not sufficiently impact "real life" legal debate). Orin contended, among other things, that application of a "good faith" exception to the exclusionary rule would effectively undermine the defendant's incentives to argue that the police had violated the law.  In other words, Orin's concern was that a ruling in the government's favor would ultimately paralyze the Fourth Amendment and reduce the growth of new law.  [Hope I captured your argument correctly, Orin.  Feel free to correct it in the comments.] 

I think Orin's argument makes much sense, but I also wonder if it is ultimately a "second-best" argument. That is, if you really want to "make law," preserving incentives to file suppression motions seems to be a relatively messy way of doing it.  Perhaps Orin's argument simply highlights the problem with relying on the judiciary (and not a legislature or administrative agency) to generate criminal procedure.  Then again, maybe this is a reflection of my newfound interest in regulation and governance in lieu of more adversarial, litigation-based systems.  In my own ideal world, criminal procedure would be managed by administrators and not judges.  Indeed, the Crim Pro I class would be a variant of Admin Law, and not a con law course. [No worries, I know that isn't happening any time soon ....].

In any event, Justice Alito (a former prosecutor himself) clearly was swayed by the fact that the police were not "culpable" for the violation that occurred.  That is, they had followed the law as it existed, and for that, they should not have to bear the costs of the exclusionary rule's tangible and expressive effects. Although Alito ostensibly addressed the issue through the lens of deterrence theory (ie, it makes no sense to "deter" police who adhered to good law), one could also understand the opinion as an application of retributive principles.  The police followed the law scrupulously; accordingly, they should not be "punished" via a suppression of evidence.  Notice that this intuitive approach is not completely off base: many of the earlier Warren court opinions discussed exclusion in almost moral terms (look back at the Mapp opinion and you'll see what I mean).  If exclusion takes on a meaning that the police have been "bad," then judges will be loath to apply the rule when it appears the police have behaved well. [Of course, many of us will disagree on what "behaving well" means.]

My own view is that it would have been undesirable for the Court to rule in favor of Davis (sorry Orin).  The reason is that an adverse decision would have reduced the Court's credibility with police departments, and would have further eroded the opportunity costs of disobeying the law of criminal procedure.  That is, police would have had less incentive to follow the law (since following the law would create fewer benefits if the law was subsequently overruled), and, even more importantly, police would have lost whatever respect they had for the courts ("I followed the law and you're still excluding the evidence?").  Absent such respect, police would have been less likely to comply with numerous criminal procedure rules, and the courts lack sufficient resources to monitor the police (defendants cannot possibly do an adequate job of monitoring, regardless of their incentives).  So from the lens of compliance theory (drawing on the work of psychologists such as Tom Tyler, and sociologists like John Braithwaite), it makes a lot of sense to uphold the search if it improves judicial credibility and encourages good compliance norms within police departments. 

Finally, like Giovanna did earlier, I would like to come to the aid of my co-blogger, Brian Galle, by noting how this analysis draws on much more than "doctrine".  Orin's argument, which analyzes the players' various incentives, is grounded in the incentive-based talk we now take for granted thanks to Law & Economics.  So is the Court's discussion of deterrence, although I beg to differ on some of their assumptions (seems to me that it is disingenuous to say that strict liability does not deter constitutional violations; the better conclusion would be to say that it deters violations but also likely overdeters good policing).  The question of whether the police were "culpable" arguably reflects intuitions about retribution, and there now exists a robust literature that discusses whether we should use intuition as a basis for retributive punishment.  And the question of whether a given decision will improve or undermine compliance is greatly enhanced by the fields of psychology and sociology.  I wouldn't dream of passing myself off as an expert in any of those fields.  Nevertheless, as individuals with particularized knowledge of legal institutions, we profs can play a role in applying those disciplines to the study of "law," which in turn enriches the way we comprehend and approach more practice-oriented questions.  By all means, we should develop and support doctrinal scholarship; but we should also embrace the theoretical, multi-disciplinary inquiries (at least the well grounded ones) that our colleagues have produced. 

Constitutional remedies

Yesterday's SCOTUS decision in Davis v. United States marks another gap between constitutional rights and constitutional remedies. The Court held that the exclusionary rule did not apply in a Fourth Amendment case where police acted consistent with binding precedent clearly making their conduct lawful at the time of the search, even if a subsequent retroactive change in the law rendered the search unlawful by the time of a decision in the criminal case.

The exclusionary rule has become the counterweight to damages under § 1983/Bivens as the remedy for constitutional violations. Limitations on (or proposals to eliminate entirely) the exclusionary rule have pointed to § 1983 litigation as the alternative; limits on § 1983 (especially the expansion of qualified immunity) often point to the exclusionary rule as the alternative. But the effect of Davis is to functionally bring the exclusionary rule and qualified immunity further into line. An individual can receive no remedy when an officer relies on established law to conduct a search that is, in fact, unlawful--the exclusionary rule does not keep the evidence out of the criminal case and that officer would enjoy qualified immunity in a § 1983 action because the unlawful nature of the search was not clearly established at the time (in fact, quite the opposite).

The open question is what happens under the exclusionary rule when the law is unsettled--that is, where controlling law does not clearly sanction the particular practice (as in Davis), but where the lawfullness of the practice is unclear. We know that the officer would enjoy qualified immunity in such a case, because where the law is unclear, the officer has not violated a clearly established right. But does the exclusionary rule also overlap with qualified immunity analysis in that situation?

Justice Sotomayor concurred in the judgment to emphasize that this issue was not addressed or resolved in this case. The issue for the exclusionary rule is whether exclusion would "appreciably deter" Fourth Amendment violations. She agreed with the majority that we get no deterrence by excluding evidence where clear controlling law told the officer he was allowed to do what he did. For deterrence purposes, however, there is a difference between clear binding precedent explicitly authorizing an act and unclear law; exclusion in the latter situation does provide appreciable deterrence, by getting officers to steer clear of constitutional lines.

But Justice Breyer's dissent insists that it has been resolved as a matter of logic. Under the majority's view, whether exclusion provides meaningful deterrence in a given case turns, in part, on the "flagrancy" of the police misconduct and the "culpable" nature of the conduct; if the officers did not violate the Fourth Amendment deliberately, recklessly, or with gross negligence, then excluding evidence adds no deterrence. But, Justice Breyer argues, an officer who conducts a search that he believes complies with the Constitution because the law is unsettled and did not tell him otherwise acts no more culpably than an officer who conducts a search that binding precedent tells him is lawful (even if it turns out to be wrong because of a subsequent change in the law). This focus on "culpability" is functionally the same as the objective reasonableness standard for qualified immunity; both look to whether the law told the officer that the search was unlawful and both would deny a remedy where the officer did not know.

For his part, Justice Alito's majority opinion drops a footnote that individuals still can challenge Fourth Amendment-violative searches (including those that became unlawful through subsequent changes in the law) through § 1983 actions against municipalities, where the search is conducted pursuant to a (now-unlawful) municipal policy or custom, without the obstacle of qualified immunity or the good-faith exception to the exclusionary rule. Of course, this seems somewhat disingenuous, given the narrow scope the Court gave to municipal liability just three months ago and the Court's new assumption in § 1983 cases that violations occur because of individual bad apples rather than systemic, institutional "cultures" and that affects individual officers and their behavior.

A Must-Read For Father's Day, and for Any Day

Here's a stunning little essay for Father's Day for you to read by Jeff Goldberg. It's one of the best short essays I've ever read. Period. It reveals two important insights: first, the banalities of modern life for most of us are such that most of us never get to demonstrate whether we're actually a coward under pressure. Second, there's a point about "real" happiness here that is all too often lost: "joy is best found not in the pursuit of pleasure, but in the execution of responsibility." Here's a brief intro to the essay:

The morning of Sept. 8, 2008, was like most mornings for Thomas S. Vander Woude, a former airline pilot who, in retirement, kept a farm in Nokesville, Virginia. He went to Mass, and then turned to the relentless demands of his 26 acres. By his side was his youngest son, Joseph, known as Josie, who was 20 at the time, and who had Down Syndrome. Josie’s six older brothers had long ago moved away from home, but Josie was his father’s inseparable companion.

While Thomas was working, Josie was off in a different part of the yard when a broken septic-tank cover gave way under his feet, and he slid in. Vander Woude, from a distance, saw his son fall. He understood right away that Josie was in mortal danger. The tank was 8 feet deep, and filled almost to the top with waste.

Read more here. Happy Father's Day to all. 

 

When Can You Contract Out of Procedure?

I'm sorry it has been a long time since I last rapped at ya.  As I mentioned in my previous post, I will focus on four class action cases before the Supreme Court this term - (1) AT&T Mobility LLC v. Concepcion; (2) Erica P. John Fund, Inc. v. Halliburton Co., No. 09-1403; (3) Smith v. Bayer, 09-1205; (4) Wal-Mart Stores, Inc. v. Dukes, No. 10-277.   Since my last post the Court has decided Erica P. John Fund, Inc. v. Halliburton Co. and Smith v. Bayer, in an apparent conspiracy to ruin my vacation. Moreover, this past April the Court decided AT&T Mobility LLC v. Concepcion.   Sometime before the end of month the Court will decide the Wal-Mart case, and there is already speculation as to how it will be decided.

I have much to say about all four cases, so I will start in chronological order and discuss AT&T Mobility LLC v. Concepcion.  Here I want try to come at the case from a different angle, and suggest a link to the Erie doctrine.

At issue in AT&T was the enforceability of an arbitration clause that had been invalidated under state contract law, in this case California state law.  Under Section 2 of the Federal Arbitration Act ("FAA"), arbitration clauses are presumptively "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for revocation of a contract."   The Act was passed primarily to curb judicial hostility to arbitration clauses, but Section 2 contemplates that state contract law may permissibly revoke an arbitration clause "upon such grounds as exist at law."  The big question in AT&T was when state law goes too far, in effect discriminating against arbitration clauses in contravention of the FAA's purpose.

Further complicating things is the actual arbitration clause in this case, which was contained in a cell phone contract (and I advise all of you to read your contracts).  The arbitration clause not only compelled the parties to arbitrate any dispute arising out of the contract, but prohibited the parties from bringing any claims "in any purported class or representative proceeding."  So not only must the parties arbitrate, but they waive all rights to class actions or class arbitration.  California courts previously held that  class waivers in consumer contexts were unconscionable, at least with respect to fraud claims, since such clauses cannot adequately substitute for the deterrent effect of the class action.  The Court disagreed, holding that the application of the California unconscionability doctrine here conflicted with the FAA.

Such an arbitration clause suggests the near-total demise of the consumer class action, as some had predicted even before AT&T, and most of the commenatary on the casehas concerned whether AT&T really killed of the consumer class action.  

But, to play devil's advocate, suppose that such clauses in fact destroy the class action.  In fact, suppose that, despite the supposed consumer-friendly provisions of the arbitration clause in the AT&T contract, that the arbitration clause was nothing other than a total limitation of remedy clause, with no one in their right mind opting to arbitrate a claim.  In other words, cell phone services are purchased strictly "as-is," with no realistic recourse to arbitration or the judicial system.  

Now, is this necessarily a bad thing?  There are a number of consumer contexts where individuals buy things "as-is," such as garage sales, Craiglist, or street vendors.  Granted, you may still have certain rights in these contexts, but for the most part people understand that the relevant rule is "caveat emptor," and it has not lead to consumer dystopia (well, excluding certain sections of Craigslist).  I mean, there are such things as quit claim deeds. 

Now, if you do add the prospect of liability, one could imagine that in a competitive market the seller will estimate its expected liability and pass it on to the consumers, with consumers in a sense buying tort insurance.    And maybe some or all consumers don't want it!  Maybe you are already insured, and/or you just want the lower price.  So here the "deterrent effect" of liability, let alone the class action, is not altogether a good thing, particularly when sellers are already incentivized to produce good, safe products because they don't want to lose business. 

Now you might say that the market for cell phone services is different, since it is not the quintessential competitive market.  And fraud is different - how can you assume the risk of a deliberate, fraudulent statements (even though I avoid shady business establishments all the time).  Finally, we are talking about contexts in which there are a few sellers and numerous consumers, and the consumers, all else being equal, will need class-type procedures to level the playing field, as I have previously argued.  Fair enough, but these considerations only complicate the analysis.  It would require a court to conduct an almost rule-of-reason like determination of the costs and benefits of prohibiting parties from contracting out of certain procedural mechanisms like the class action.

Here is the link to Erie.  In most cases the underlying entitlements, such as an entitlement to avoid fraudulent conduct, are protected by state law.  It would stand to reason that states should also have some say on how those substantive entitlements are procedurally protected, since, as John Dingell knows all too well, an entitlement is only as good as how it is protected.  Accordingly, California should have a lot of leeway in how its substantive entitlements are procedurally protected, including prohibiting class waivers for certain state law claims.  But it also stands to reason that the federal government, via its Commerce Clause powers, can also regulate interstate activity to further the protection of important entitlements.  So to what extent can California define procedure for its entitlements without conflicting with federal objectives?  And how are courts supposed to sort out these disputes in any given case?

That, in a nutshell, is not only the issue at the heart of AT&T, but also at the heart of the Erie doctrine.  I plan to write a great deal about this issue this summer in a current project, and I am curious to hear your thoughts. 

 

 

Final Comments on the Controversial Reply of Amici

So, in my last post, I linked to a wild brief I filed. Amici and I knew not everyone would like it, but we do like it. Before moving on to my next topic, I’ll try one last post on this topic to explain why we filed it.

First, let me start by saying a few things about our objectives as amici. Our overall objective is to encourage judges to apply the law in light if true historical events, not based on broad assumptions about history, which often are inaccurate. If we don't use some colorful rhetoric, it is quite easy for our briefs to be forgotten at the bottom of the big pile of MSJ paperwork. The judges, but probably not most clerks, can be receptive to the observation that applying legal concepts mechanically to historical claims results in formalistic, unfair opinions. Judges also are able to reflect upon what to do about it. A three-judge Second Circuit panel recently vacated the judgment in the first Holocaust-era art trial in forty years, in which some of the same amici filed a brief. We properly represent a different interest than the partisans with claims and defenses on the line. We properly seek to inject some humanity into the legal process. 

Second, I’ll talk about our reply brief specifically. We think the reply has a shot of actually making it past the clerk to the judge and calling attention to what we have to say overall.  People have commented that what we did is risky.  What do we as amici have to lose? We are not a party in an ongoing relationship with Yale's counsel or the court.  On the other hand, we probably are not done filing briefs in restitution cases. The repeat players are paying attention to what we are saying and doing and would notice whether we fought back or not. In the end, the judge in the particular case will allow the brief into the record or he won't; I really don’t believe that anything in the silly opposition or our reply is likely to affect that.  I realize some seem to disagree, but I’ll leave it at that.

So, next I’ll move on to the specifics of the opposition and our reply. We wanted to call attention in a blatantly obvious way to the unfounded biases Yale's counsel attempted to inject in a subtle way, which in my opinion were about as subtle as a fart in a car. Hopefully what I say below demonstrates why, but if it doesn’t, then I guess we can just agree to disagree on this. In my opinion, Yale's counsel arrogantly filed a public document treating amici (and me) like incompetent hacks, which we absolutely are not.  Here are notes of my critical reading of the opposition [with some correlating notes about the reply]:

1. Page 1 leads off with a clearly minority case that has been called into question by another case without any disclosure of that status.  Was it assumed we wouldn’t even bother to Shepardize it? 

2. Page 1 says, despite the description of amici's deep expertise in App. A to the Motion, that they have no unique level of expertise. [The expertise we claimed concerned application of legal doctrines to historical claims in light of true historical context. I won’t rehash that experience here.]

3. Page 2 continues using minority view cases without disclosure.

4. Page 3 says amici have "no special interest" because amici didn't publish on the Act of State doctrine or the laches doctrine.  Since when did publication on the subject of an amicus brief ever become a requirement in the slightest to be an interested amicus?  Counsel is the legal advisor to amici, and even counsel doesn't have to publish.  [The reply summarizes amici’s expertise, but as counsel I did not disclose my expertise. We figured if Yale's counsel, who likely knows about my expertise, was demanding that we hold ourselves to the expert standard, instead of the amici standard, then we may as well let the judge see my credentials and on-point publications. FYI: There is an unresolved choice of law issue; N.Y. is one option.]

5. Page 3 identified the institutional affiliation of only one amici at UND and me at NKU (and didn't even bother to spell out the name of my law school), despite the fact that amici are from all across the country. If there is no negative connotation being urged, then why single us out?

6. Page 3 specifically calls out the "Jewish Studies" professor; Professor Berenbaum is one of the world's foremost Holocaust historians. Can't a Jewish Studies scholar be concerned about the development of the historical record in cases not relating to Jewish causes?  [By the way, it was this reference that triggered the New Testament reference, not amici's desire to be "Christlike" as someone suggested in the comments to the last post.]

7. Page 4 accuses Professor Paust of signing on just because one of two co-editors of one of his books happens to be co-counsel for the party we think has the Act of State arguments largely right.  [Yale's counsel's prior briefs on the doctrine are simplistic and wrong.  They are what triggered me to reach out to other potential amici, including Professor Paust who has written directly on the Act of State doctrine. A formalistic Act of State precedent established could be problematic for other human rights cases.]

So, in sum, we concluded there was no need to address the weak, biased, "substantive" arguments made in the opposition brief. I’ve never written anything like it before, although I do enjoy writing with some fire. Not everything though. For instance, I don't think I ever drafted a securities class action defense brief with any passion at all.  I think my keyboard at Milbank was wired to shock me if I even tried to muster any passion while drafting one of those.  I do not believe that sterility is not a virtue when it comes to legal writing, however. In fact, most cases in which amicus briefs are filed probably triggered some sort of passion in the filer (barring perhaps, tax cases?). Finally, I'll pose this question in a final attempt to make my point: If amici and I had been Harvard professors, even with all of our other credentials being equal, would the opposition ever have been filed? 

OK, that’s all on that topic for me. Perhaps you still wouldn’t have fired off a brief like that. I can understand not everyone would. We debated it, but came out where we did. After a catnap, I’m catching a plane out to the West Coast for quite a long trip, so I won’t be able to comment on this further. Nonetheless, I should say, that the comments I received behind-the-scenes on this topic were worth their weight in gold and I appreciated the perspectives provided in all of the comments – public or private.

Of "Practical" Scholarship and Amici

Recent prawfs posts have discussed whether scholarship should be "practical" and the benefits of doing amicus work.  Yesterday's SCOTUS opinion in J.D.B. v. North Carolina, authored by Justice Sotomayor, provided a nice illustration of the value of both.  In deciding that a minor's age informs the Miranda custody analysis, the Court cited work about false confessions, often involving juveniles, that have been revealed by the DNA exonerations.  (Think of the Central Park jogger case).  Specifically, Justice Sotomayor cited an article by Steven Drizin & Richard Leo in the North Carolina Law Review, "The Problem of False Confessions in the Post-DNA World," as well as the Amicus Brief of the Center for Wrongful Convictions of Youth, on which Prof. Drizin is listed as counsel (which itself cites numerous articles by law profs in a wide range of law reviews).  Other law profs, including Brandon Garrett, author of Convicting the Innocent, have painstakingly reviewed the DNA cases and catalogued the issues in them, documenting the problems of lying informants, unreliable eyewitness identifications, faulty forensic evidence, and false confessions.  IMHO, the efforts of Professors Drizin and Leo represent high quality sholarship with real-world applicability.  Apparently, the J.D.B. majority agrees.

Coming soon to a theatre near you ...

"Moneyball" the movie. The moneyball concept gets a lot of play in the realm of academic hiring and performance analysis. Of course, that get's no play in this movie - but if Brad Pitt plays moneyball general manager Billy Beane, then who is Billy Beane in law and what actor plays him in Moneylaw the  movie?

 

Thinking about Greece.

I thought I would be remiss if I did not at least point out that Greece seems to be a mess right now - mostly because it cannot pay its debts and it may default on them soon.  Some have labeled the situation the "next Lehman" although it seems highly unlikely that Europe will let Greece fall apart.  (Greece's political situation is not so great either, which probably complicates matters further).  Perhaps the post-Lehman crisis taught world leaders a lesson. Or perhaps the Europeans would have approached Greece's situation differently, regardless of how the US government handled (and how US markets responded to) Lehman's collapse. Whatever the case, it all makes me want to come home and watch Too Big to Fail on television all over again.