PrawfsBlawg

SCOTUS Term: Bad News for the Universal Injunction

To follow up on Howard's post: one understated result of this morning’s travel-ban decision may be to hasten the demise of the universal injunction.

Ordinary injunctions protect the parties who obtain them. That can include class members, if the case involves a plaintiff class. But in recent years,  district courts have started to regularly award what Howard describes as "universal injunctions" (sometimes called "nationwide injunctions," or even "cosmic injunctions"). These binding orders regulate a defendant’s conduct even as to people who’ve never appeared in court—and, more importantly, who aren’t legally represented by those who did appear.

The travel-ban case involved just such an injunction. But because of the way it was brought, with the State of Hawaii able to advocate for the interests of various other persons, it would have made for a messy analysis. By disposing of the case on the merits, the Court ended up avoiding any detailed discussion of the injunction or its scope. (Justice Thomas discussed it at length in his concurrence—citing excellent work on the topic by Sam Bray, among others. And Justices Sotomayor and Ginsburg would have upheld the injunction, though I agree with Howard that the relevant footnote doesn't really explain why.)

So the next opportunity for the Court to reach the issue may be the government’s stay application in the sanctuary-city case. There, the City of Chicago sought and obtained an order forbidding the policy’s application to every locality in the United States. But without an order certifying a class, Chicago ordinarily doesn’t have the right to act as a legal representative for other cities—some of which might like the policy, or which simply might be indifferent. Chicago can sue to protect its own interests, but not to vindicate an abstract position on whether a policy is lawful, much less to obtain binding court orders about (say) the conditions on federal funding for Tampa. So the government has pressed the issue, asking the Court to stay only that portion of the sanctuary-city order which applies to other cities.

Which the Court might well do. As others have noted, the Chief Justice's opinion for the Court in the Gill v. Whitford redistricting case sounded plenty of relevant notes, in explaining why the Gill plaintiffs couldn't sue to reshape the state's legislative districts as a whole:

The plaintiffs’ mistaken insistence that the claims in Baker and Reynolds were “statewide in nature” rests on a failure to distinguish injury from remedy. In those malapportionment cases, the only way to vindicate an individual plaintiff ’s right to an equally weighted vote was through a wholesale “restructuring of the geographical distribution of seats in a state legislature.” Reynolds, 377 U. S., at 561; see, e.g., Moss v. Burkhart, 220 F. Supp. 149, 156–160 (WD Okla. 1963) (directing the county-by-county reapportionment of the Oklahoma Legislature), aff ’d sub nom. Williams v. Moss, 378 U. S. 558 (1964) (per curiam).

Here, the plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted. That harm arises from the particular composition of the voter’s own district, which causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district. Remedying the individual voter’s harm, therefore, does not necessarily require restructuring all of the State’s legislative districts. It requires revising only such districts as are necessary to reshape the voter’s district—so that the voter may be unpacked or uncracked, as the case may be. Cf. Alabama Legislative Black Caucus, 575 U. S., at ___ (slip op., at 7). This fits the rule that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis, 518 U. S., at 357.

The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking.” Brief for Appellees 31. But our cases to date have not found that this presents an individual and personal injury of the kind required for Article III standing. On the facts of this case, the plaintiffs may not rely on “the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” Lance, 549 U. S., at 442. A citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative. And the citizen’s abstract interest in policies adopted by the legislature on the facts here is a nonjusticiable “general interest common to all members of the public.” Ex parte Lévitt, 302 U. S. 633, 634 (1937) (per curiam).

What's more, the Court rested this discussion on constitutional grounds:

Our power as judges to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), rests not on the default of politically accountable officers, but is instead grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff ’s particular claim of legal right.

If the Court really is committed to resolving particular claims of legal right, with remedies targeted at the plaintiff's own injuries, then it's hard to see it upholding the universal injunction.

[UPDATE 6/27: Sam Bray summarizes new developments on the universal-injunction front. Among them, the Seventh Circuit has granted the government's stay request in the Chicago case, meaning that the stay application to the Supreme Court is now moot. (He also notes that the Seventh Circuit "refers to the injunction as 'STAYED as to geographic areas in the United States beyond the City of Chicago' [emphasis added]; footnote 1 of Justice Thomas's opinion is more precise, distinguishing places and parties.") ]

Is Ex parte Young Doomed?

Among the 11 cases in which the Supreme Court granted certiorari this morning is Armstrong v. Exceptional Child Center, a case out of Idaho (via the Ninth Circuit) that asks "Whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute." This is the exact same question that the Supreme Court had before it--and narrowly ducked--two years ago in Douglas v. Independent Living Center of Southern California, a case I've written about here previously. And the fact that the Court has once again decided to take it up does not bode well for the plaintiffs--or, as I'll explain below, the future availability of remedies under Ex parte Young.

In Douglas, a 5-4 majority vacated the Ninth Circuit's affirmative answer to that question based upon an intervening change in the administrative posture in the case--without endorsing or criticizing the Court of Appeals' ruling. But in a strongly worded dissent on behalf of himself and Justices Scalia, Thomas, and Alito, Chief Justice Roberts argued that such remedies under the Supremacy Clause should not be available, lest the Supremacy Clause provide litigants with a means of making an end-run around their inability to enforce section 30(A) (the Medicaid statute's critical requirement that states fund Medicaid at levels sufficient to guarantee "equal access" to quality providers) either directly or via 42 U.S.C. § 1983. For Chief Justice Roberts, Douglas should have followed directly from the Court's earlier decisions in Alexander v. Sandoval (limiting direct enforcement) and Gonzaga University v. Doe (limiting 1983). Taking those cases one crucial step further, the Douglas dissent would have held, for the first time, that litigants may not pursue injunctive relief against state officers for violations of federal law under Ex parte Young unless the underlying federal law is itself privately enforceable. 

The reason why such a conclusion would not be inconsistent with Ex parte Young and its progeny, the Chief Justice explained, is because "Those cases . . . present quite different questions involving the pre-emptive assertion in equity of a defense that would otherwise have been available in the State's enforcement proceedings at law.” This hyper-narrow view of the scope of Ex parte Young, which was most forcefully advanced in a 2008 Stanford Law Review article by UVa Professor John Harrison, has never been embraced by a majority of the Supreme Court, and cannot be squared with any number of subsequent Supreme Court decisions. As Justice Scalia reiterated just three years ago, “[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’" And because of these modest prerequisites, as then-Justice Rehnquist wrote in 1974, Ex parte Young "has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect.” In other words, litigants have been able to use Ex parte Young to affirmatively and prospectively vindicate federal rights against state officers whether or not they are otherwise facing state enforcement proceedings in which those rights might provide a defense. On the Douglas dissenters' view, such remedies would only be available when such enforcement proceedings were nigh... 

And yet, Douglas came within one vote of cementing this far narrower understanding of the availability of such relief. And Justice Kennedy (who joined Justice Breyer's majority opinion in Douglas that ducked the issue) has already expressed at least some support for this view of Ex parte Young elsewhere. After Douglas came out, I wrote a short essay about the bullet that the Douglas Court dodged. With this morning's grant in Alexander, it increasingly appears that any solace one might have taken from that result may well be short-lived.

[Full disclosure: I co-authored an amicus brief on behalf of former HHS officials in support of the Respondent in Douglas--which argued, contrary to the position advanced by the Solicitor General in his amicus brief, that HHS has historically understood private enforcement of the equal access provision to be a critical part of the Medicaid scheme.]

"Experiential" Scholarship?

Is there such a thing as "experiential" scholarship?  I asked this question to some of my colleagues during a recent lunch.  I asked because there has been much debate on experiential learning and what that might look like in a law class, and there has also been much debate on what relevant scholarship looks like.  I was curious if others thought there was any correlation.

After a great discussion with my colleagues, the answer (like all good law school answers) is, "it depends."  The discussion boiled down to three observations:

1.  The Target Audience - For legal scholarship to have an impact, legal scholars should keep in mind why they are writing a piece and who should read it (obviously this goes beyond, "I need to publish so I will come up with a sexy title to capture the attention of law review students").  The target audience could be practitioners, judges, policymakers, and/or academics.  If scholarship is, or even can be, correlated to making students practice-ready, then it seems like the first three audiences would be the primary targets since they are actively in practice.

2.  The Platform Problem - While academic audiences might be inclined to browse through law review articles, the others - judges, practitioners, and policymakers - are less and less likely to do so.  If my target audience extends beyond academics, a lot of issues arise.  What platform do I use to reach them?  For example, if I want my scholarship to be read by practitioners, where do I publish?  The ABA sections all have different periodicals that are published throughout the year.  But what about the other audiences - what platform does one use to reach judges?  And, of course, articles for non-law reviews would be much shorter than traditional articles.  Does that mean forego the traditional law review and go straight to these other platforms (if one can be found)?  I don't think so.  Instead, that question leads to the third observation.

3.  Expertise and Marketing - To become an expert in a certain area undoubtedly requires a lot of research and thought.  Such in-depth work is reflected in traditional law review articles.  Once a legal scholar becomes an expert, then the key is to market it to the target audience.  Write a law review article with the target audience in mind.  Once you've mastered the area, actively seek out publication opportunities that will actually reach the audience you want - write a short piece in the area for an ABA publication, turn it into an op ed, try to present at conferences where your target audience attends, become involved in drafting legislation, blog on relevant sites ... bottom line, take your expertise and, for lack of a better word, market it so that it has the practical impact desired.  Perhaps this is what a lot of legal scholars already do, but I must admit I haven't done it well.  Upon reflection, I think my failure to proactively market my scholarship to non-academics (most of my pieces target judges and policymakers) stems from the fact that, until recently, I was on the tenure track and it was unclear to me whether the effort and time it takes to reach out to such audiences would count as scholarship.  Should it?  And, more on point, would marketing scholarship to non-academic audiences help us think of ways to teach experientially or help make our students more practice-ready?

Halliburton and the State of the Efficient Capital Markets Hypothesis

Very interesting set of opinions in Halliburton v. Erica P. John Fund, Inc.  The continuing vitality of the efficient capital markets hypothesis is one of the big issues in the case, and there are numerous cites to law profs, including the law professors' amicus brief and articles by Lynn Stout, Don Langevoort, and James Cox, among others.  Both big opinions cite to Lev and de Villiers.  A very interesting example of when theory has a big role to play in doctrine. 

From Chief Justice Roberts's majority opinion:

Even though the efficient capital markets hypothesis may have“garnered substantial criticism since Basic,” post, at 6 (THOMAS, J., concurring in judgment), Halliburton has not identified the kind of fundamental shift in economic theory that could justify overruling a precedent on the ground that it misunderstood, or has since been overtaken by, economic realities.

From Justice Thomas's concurrence in judgment:

The Court’s first assumption was that “most publicly available information”—including public misstatements—“is reflected in [the] market price” of a security.  [Basic, 485 U.S.] at 247. The Court grounded that assumption in “empirical studies” testing a then-nascent economic theory known as the efficient capital markets hypothesis. Id., at 246–247. Specifically, the Court relied upon the “semi-strong” version of that theory, which posits that the average investor cannot earn above-market returns (i.e., “beat the market”) in an efficient market by trading on the basis of publicly available information. See, e.g., Stout, The Mechanisms of Market Inefficiency: An Introduction to the New Finance, 28 J. Corp. L. 635, 640, and n. 24 (2003) (citing Fama, Efficient Capital Markets: A Review of Theory and Empirical Work, 25 J. Finance 383, 388 (1970)). The upshot of the hypothesis is that “the market price of shares traded on well-developed markets [will] reflec[t] all publicly available information, and, hence, any material misrepresentations.” Basic, supra, at 246. At the time of Basic, this version of the efficient capital markets hypothesis was “widely accepted.” See Dunbar & Heller, [Fraud on the Market Meets Behavioral Finance, 31 Del. J. Corporate L. 455, 463–464 (2006)].

This view of market efficiency has since lost its luster. See, e.g., Langevoort, Basic at Twenty: Rethinking Fraud on the Market, 2009 Wis. L. Rev. 151, 175 (“Doubts about the strength and pervasiveness of market efficiency are much greater today than they were in the mid-1980s”). . . .  

For further reading: interested folks might want to check out our book club for Justin Fox's The Myth of the Rational Market, which included the author, Lynn Stout, David Zaring, & Benjamin Means. 

Teaching vs. Scholarship vs. Influence

A lot of discussion has been had about spending time on scholarship vs. teaching.  Scholarship is, of course, the activity that makes our Deans and peers happy and drives our promotion and tenure packet; teaching (and teaching well) requires a lot of time, but is something that some (but not all) of us enjoy.  One main issue is that too many new faculty spend too much time on teaching prep and not enough of their scholarship, leading to major stress as their promotion deadlines appear.

Now that I've had tenure a few years, I'm looking again at how and where I spend my time.  I love to teach -- it's invigorating and I truly enjoy working with students.  I love to write (except when I'm in that "pit of despair" stage of writing that happens all too frequently).  But lately I've had a few opportunities to work in what I'll call "influence."  I was asked to come give a briefing at the Senate building on patent troll legislation -- currently dead or dying, by the way!  (N.B. I have no delusion that I am the cause of the bill's demise...)  I've written some op eds on a few pending Supreme Court cases.  I've been interviewed by reporters on current issues, such as language being used in the net neutrality debates.

Given that there are only so many hours in the day, I need to make choices about where to spend my time.  (And I apologize if this is a path that has been well worn - the opportunities to engage in the world outside of teaching and scholarship is relatively new to me.)  Many of these influence opportunities arise based on my scholarship, but to participate in these influence activities means that I may write a little slower (or, heaven forbid, spend less time prepping for a class session).  

Certainly there is value that can come from all three of these activities, but I get the feeling that influence activities, while exciting and important to me, may not be viewed as important by others, such as students or peers or maybe even the people who adjust my salary every year.  It's a lot harder to qualitatively judge the influence activities -- right?  My students regularly provide a rating that, in theory, indicates the value and quality of my teaching.  My articles are placed in journals that can be rated on any number of ranking metrics.  But how can you evaluate how well I influenced?  Is this why it may be viewed as less important than the other two?

It's nice to think that something I'm doing may have some influence on the outside world -- and maybe some folks' mainstream scholarship does that...but is the cost of engaging in other influence activities worth the potential costs to teaching and scholarship?  

Donald Langevoort: Cited in the Supreme Court

This is the seventh in a series of posts about scholars cited this term in the Supreme Court.

Donald Langevoort is Thomas Aquinas Reynolds Professor of Law at Georgetown.

Congratulations on being cited in the Supreme Court.  What was the work and how was it used?

Thanks.  An article of mine entitled “Basic at Twenty: Rethinking Fraud on the Market” (Wisconsin Law Review, 2009) was cited this Term by the majority, the concurrence and a dissent in Amgen v. Connecticut Retirement and Trust Funds.

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

I write mainly for other scholars, but hope that practitioners take it seriously enough to cite in their briefs, which is what brings the work to the Court’s attention.

Do you do anything in particular to share your work with practitioners?

Yes, especially on the heavily litigation subject of private securities class actions.  There is quite a bit of interest in scholarship among those who litigation, on both sides.  My article was in a symposium co-sponsored by the University of Wisconsin Law School and the Institute for Law and Economic Policy; the latter is a group dedicated to debating, from the plaintiffs’ perspective, issues relating to class actions.  That created an immediate practitioner audience, though by no means everything I said was pro-plaintiff.  I’ve also presented my work to defense-side groups like the Chamber of Commerce.

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

It’s true, but the legal system is only one possible audience for such work.  I would venture a guess that more than half of what is published in law reviews is quite relevant to the real world.

Are you happy with the way your work was used?

I had no problems with the citations.

What advice do you have for scholars who want their work to be influential in the courts?

Reach out to the most sophisticated practitioners out there—many of whom have an academic bent and are delighted to debate theory as well as practice.

Did your family or colleagues do anything for you when the opinion case out?

The citations were mentioned in one of Georgetown’s many e-mails to faculty about our research activities, so I had a few congratulations.  But it wasn’t that big a deal.  I suspect that Georgetown does as good a job as any law school in connecting faculty research to the law-making process, whether judicial or otherwise.

Cited in the Supreme Court: Stephanos Bibas

This is the sixth in a series on scholars cited this term in the U.S. Supreme Court.

Stephanos Bibas teaches criminal law and procedure at Penn.

Congratulations on being cited in the Supreme Court.  What was the work and how was it used?

The article was Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L.J. 1097, 1123-32 (2001), the first big article I wrote, which was my job-talk paper while I was still on the entry-level teaching market.  Justice Alito's dissent in Alleyne v. United States (U.S. 2013) cited it and two other scholarly articles to show that the historical evidence contradicted Apprendi v. New Jersey's supposedly originalist reading of the Sixth Amendment.

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

I always try to tackle questions of practical importance in an accessible form, so that courts and practitioners as well as scholars can use them.  But I'm realistic.  Not many judges or practitioners care much about scholarly articles, or even are aware of many of them, so I'm always pleasantly surprised when one of them finds and relies on my work.

Do you do anything in particular to share your work with practitioners?

Not particularly.  After Oxford published my first book The Machinery of Criminal Justice, I guest-blogged about sections of it at The Volokh Conspiracy and Sentencing Law and Policy, and I've spun off ideas from it for First Things' website and National Review.  I probably should do more of that, because blogs and aggregators are good ways to broaden an audience.

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

I think the Chief Justice had a point.  Now, many academics aren't trying to influence judges or lawyers directly but rather offering academic critiques.  But I do think we've lost something in becoming so abstruse and theoretical that many of our articles no longer seem relevant to the practice of law.  One of my scholarly ambitions is to bridge the chasm between theory and practice, to offer theoretical and policy critiques while remaining abreast of and relevant to what's happening on the ground.  I also buy Orin Kerr's point that professors often don't have enough of a feel for the sweet spot between airy-fairy dreaming and just brass-tacks doctrine.  It's helpful to offer a vision of the law that is coherent and theoretically grounded, yet restrained and practical enough that judges could plausibly implement it in the real world.

 Are you happy with the way your work was used?

Yes, except that my work on the Apprendi line of cases never garners more than four votes on the Court! Justice Kennedy cited a piece by Doug Berman and me in his dissent in Cunningham v. California (U.S. 2007), and Justice Breyer repeatedly relied on my Yale piece in his dissent in Blakely v. Washington (U.S. 2004).  In response, Justice Scalia's majority opinion in Blakely blasted me as "a law professor and former prosecutor," citing my AALS bio.  I was not yet tenured then and quite happy to have the Justice attack me ad hominem so long as he spelled my name right (which he did).

What advice do you have for scholars who want their work to be influential in the courts?

Try to write pithy, quotable lines.  Tackle timely topics that matter.  Maybe send your work to litigants in pending cases raising your issue, or consider writing or assisting on an amicus brief to highlight how your argument might illuminate the Court's consideration of an issue.  And don't dress up your insights in The Emperor's New Clothes of the latest abstruse interdisciplinary terminology--people see through that as just plain bad writing.

Did your family or colleagues do anything for you when the opinion case out?

No.  A couple of circuit judges and practitioners I know congratulated me, but I no longer have to worry about tenure so it's not something I needed to trumpet.  Besides, it's not as if the Court ultimately heeded me.

What else you would you like to add? 

Thanks for interviewing me!  It's good to have this prompting to reflect on what we do and why.

My pleasure!  Thanks for your insights.

 

Kerry Abrams: Cited in the Supreme Court

This is the fifth in a series on scholars cited this term in the U.S. Supreme Court.

Kerry Abrams, a graduate of Stanford Law School, writes about immigration, citizenship, constitutional law and family law.

Congratulations on being cited in the Supreme Court.  What was the work and how was it used?

Justice Sotomayor cited my article, Plenary Power Preemption, 99 Va. L Rev. 601 (2013), in dissent in Mutual Pharmaceutical Co. v. Bartlett. The majority applied “impossibility preemption” to hold that federal law preempted a state design defect law that would have required a stricter warning label. Justice Sotomayor, joined by Justice Ginsburg, dissented, and cited my article for the proposition that impossibility preemption is rare, thereby characterizing the Court’s analysis as an unwarranted broadening of precedent. 

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

I do see the Court as a potential audience, although not the primary one. I write for lawyers, other law professors, litigants, legislators, voters, historians, political scientists, and cultural critics. I also think of students as an important audience, not only because they make publishing decisions but because their ideas about law are shaped by the articles they read and edit. I didn’t really think of the Supreme Court as the audience for the article Justice Sotomayor cited. That article was a response to the Arizona v. United States case the Court decided last year. I argued that even though the Court purported to be applying conflict preemption in striking down portions of Arizona’s immigration enforcement law, it was really applying a more robust form of foreign policy preemption that I dubbed “plenary power preemption.”  I chose that name because I think that the preemption analysis the Court used draws on the plenary power doctrine, the doctrine that gives the executive and legislative branches of the federal government nearly unfettered discretion over immigration law. I was really trying to bring an immigration law perspective to a wider audience of lawyers and legal scholars who might want to better understand the interaction between traditional preemption doctrine and the unusual deference courts give to the political branches in the immigration context.

Do you do anything in particular to share your work with practitioners?

I try to post my articles on SSRN in a timely fashion, because I find that some practitioners use SSRN as a search engine when looking for novel arguments not yet available in case law. I frequently hear from litigants and practitioners with questions about my work, and it’s almost always because they read it on SSRN. I’m also guest-blogging this month on Concurring Opinions, focusing on the effects the Supreme Court’s recent Windsor decision could have on same-sex couples seeking immigration benefits. I’m hoping that short blog entries will create a different sort of conversation with a broader range of people than law review articles generally do.

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

I think that sentiment reflects a very narrow view of what legal scholarship is. It’s true that most courts would rather cite to case law than to an amicus brief or a law review article, but that doesn’t mean that legal scholarship doesn’t help to shape legal discourse. I think of scholarship as engagement with law as a whole, rather than a focus on an individual case. Consequently, it’s less likely to be useful in deciding a nuts-and-bolts case than it is for thinking about cases that test the margins of doctrine. I also think of teaching as a form of scholarship. I use my classroom as a sounding board for new ideas: my students’ reaction to what I say shapes my thinking, and my take on the law shapes their thinking as well. I’ve had many former students contact me wanting to talk through issues they are encountering in practice, and it’s always gratifying to see my vision for the law slowly making its way into the world. 

Are you happy with the way your work was used?

Yes, I thought Justice Sotomayor had the better of the argument in Bartlett and was glad to be cited by her, even if in dissent. But, to tell the truth, the citation was a complete surprise to me. I had co-authored an amicus brief (arguing for a fundamental right to marry) in the Perry marriage equality case, and have written extensively on immigration, citizenship, and family law issues, so it wouldn’t have surprised me to be cited in a case related to my work. I wasn’t expecting to be cited in an FDA preemption case.

What advice do you have for scholars who want their work to be influential in the courts?

Read cases with an eye for what seems to be confusing or frustrating the judges. Law professors often spend so much time writing to each other and rehashing old debates that they miss the nagging problems that keep coming up in litigation or legislation.

 Did your family or colleagues do anything for you when the opinion case out?

My husband and colleague, Brandon Garrett, was excited about it – maybe even more than I was! The law school tweeted about it and put it on the school’s Facebook page, and that generated some comments from former students I hadn’t heard from in a long time.

Eve Primus: Cited in the Supreme Court

This is the fourth in a series of posts about profs cited this term in the Supreme Court.

Eve Brensike Primus is a Professor at the University of Michigan, where she attended law school.  She clerked for Judge Reinhardt on the Ninth Circuit, and was a public defender in Maryland.

Congratulations on being cited in the Supreme Court.  What was the work and how was it used?

The article is Structural Reform in Criminal Defense:  Relocating Ineffective Assistance of Counsel Claims, 92 Cornell L. Rev. 679 (2007).  It was cited by the Supreme Court in Martinez v. Ryan for the proposition that many states have abbreviated deadlines for expanding a trial record before the first appeal as of right, which means that many defendants are unable to supplement their trial records in order to raise ineffective assistance of trial counsel claims on direct appeal.  The Court relied on the article to explain why states often require defendants to wait until state collateral review proceedings to raise ineffective assistance of trial counsel claims.  Of course, in the Martinez case, the Supreme Court held that states’ decisions to relegate IAC claims to collateral review had important implications for the scope of procedural default doctrine in later federal habeas proceedings.

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

When I write law reform articles, I try to appeal to many different audiences including state and federal courts, legislators, executive officials, and academics. 

Do you do anything in particular to share your work with practitioners?

Sometimes, I publish shorter versions of my law reform ideas in journals that are distributed and read by more practitioners than the standard law review article.  As a former public defender, I often reach out to my contacts in the public defender world and share my thoughts with them as well.

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

I think it is a real overstatement to say that it is useless to the legal system.  Many scholars’ ideas on a subject evolve and develop as a result of the vibrant discussion that they have with other scholars in their publications.  That back and forth has a way of crystallizing ideas and isolating the strengths and weaknesses of different positions in much the same way that opposing briefs do.  Judges and law clerks read a lot of scholarship when thinking about how to resolve open legal questions.  They might not cite everything that they read but I think that the ideas expressed in legal scholarship are important to their thought processes.

Are you happy with the way your work was used?

I am very happy that the Supreme Court was willing to recognize that states often make it impossible for defendants to raise challenges to their trial attorneys’ performance on direct appeal.  All too often, the courts are not in touch with the realities of the criminal justice system on the ground so I am pleased that here the Court was willing to look at how things actually work.  That said, I don’t agree with the Court’s conclusion that, as a result, it is desirable for many states to relegate these claims to collateral review.  In my article, I argue for reforms that would make it easier to raise trial attorney ineffectiveness claims on direct appeal.

What advice do you have for scholars who want their work to be influential in the courts?

If you want to be influential, you have to address important legal subjects that courts are grappling with, write clearly and concisely, effectively communicate that you fully understand the legal landscape of where the doctrine currently is, and then provide a balanced, nuanced, and well-supported argument for why your proposed step forward is the right move to make.

Did your family or colleagues do anything for you when the opinion case out?

I got a bunch of congratulatory emails.  One of my colleagues who had told me that I was crazy when I wrote the article came sheepishly into my office and said, “I stand corrected.  Good for you.” 

Will Baude: Cited in the Supreme Court

This is the third in a series of posts about scholars cited this term in the U.S. Supreme Court.

Will Baude is a fellow at Stanford Law School and will join the University of Chicago Law School this year.  After graduating from Yale Law School, he clerked for Judge Michael McConnell and Chief Justice John Roberts.

Congratulations on being cited in the Supreme Court.  What was the work and how was it used?

My article is Beyond DOMA: State Choice of Law in Federal Statutes, recently published in the Stanford Law Review.  It argues that striking down the Defense of Marriage Act (as the Court ultimately did in Windsor) would prompt a serious choice of law problem-- when a couple's same-sex marriage is lawful in one state but not another, does the federal government treat them as married?  Justice Scalia cited the article in his dissent, arguing that the choice of law problems I had identified provided a rational basis for upholding the statute.

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

Both, but it also depends on the particular project.  I wrote the DOMA paper in part because I was surprised that so many people thinking about the DOMA challenges either didn't understand the choice of law problem, or thought the answer was obvious (although not always the *same* "obvious" answer).

Do you do anything in particular to share your work with practitioners?

Not systematically.  I like to see my work mentioned on Twitter and blogs that practitioners may read, and I mentioned the article to practitioners I knew, but I didn't really have an outreach campaign.

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

First, I think it's true (though of course not all of it is trying to be useful). 

Second, I don't think it matters.  As Judge Frank Easterbrook once put it: "A free mind is apt to err-- most mutations in thought, as well as in genes, are neutral or harmful-- but because intellectual growth flows from the best of today standing on the shoulders of the tallest of yesterday, the failure or most scholars and their ideas is unimportant. High risk probably is an essential ingredient of high gain."

Third, it would be nice if judges who complained about the uselessness of legal scholarship told us what specifically they would like scholars to address instead.

Are you happy with the way your work was used?

Mostly.  I didn't write the article with a strong view of DOMA's constitutionality either way, but I'm happy to see somebody on the Court thinking seriously about the choice-of-law consequences.

Wayne Logan: Cited in the Supreme Court

This is the second in a series of posts about scholars cited this term in the U.S. Supreme Court.

Wayne Logan is the Gary & Sallyn Pajcic Professor of Law at the Florida State University College of Law.   A graduate of the University of Wisconsin School of Law, he clerked for Justice Louis B. Meyer of the N.C. Supreme Court and Robert R. Merhige, Jr. of the U.S. District Court for the Eastern District of Virginia.

Congratulations on being cited in the Supreme Court.  What was the work and how was it used?

Knowledge as Power:  Criminal Registration and Community Notification Laws in America (Stanford Univ. Press 2009).

The majority [in United States v. Kebodeaux, 2013 WL 3155231 (U.S. 2013)] cited the book's history-related chapters to establish the longevity of state registration laws.

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

As a general matter, I hope that both audiences find my work useful. With Knowledge as Power, however, I did my best to write in an accessible style, which would appeal to lay readers as well as scholars and courts, given the broader interest and timeliness of the subject matter.

Do you do anything in particular to share your work with practitioners?

When doing CLEs and the like, I make a point of discussing my work whenever possible. It is often the case that members of the bench and bar are rather interested in the work of law professors, especially if it ties into issues they see at work and think about. 

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

I think the view does not gibe with reality. Of course, some scholarship does not directly bear on the work of courts and practitioners. However, much of the work of academic lawyers does have direct (or indirect) impact. This is especialy so in my area, criminal justice.

Are you happy with the way your work was used?

Yes.

What advice do you have for scholars who want their work to be influential in the courts?

While I certainly do not think court citations should drive one's scholarly focus, I would say that empirical and doctrinal work, synthesizing and analyzing the law's operation, and historical accounts (such as in my case), are the likely forms of scholarship to attract judicial attention.

Did your family or colleagues do anything for you when the opinion case out?

Nope.

Matthew L.M. Fletcher: Cited in the Supreme Court

This is the first of a series of posts about scholars cited this term in the U.S. Supreme Court. 

Matthew L.M. Fletcher, a well known scholar of federal Indian law, is Professor of Law at the Michigan State University College of Law. A graduate of Michigan Law School where he was an editor of the Michigan Journal of Race and Law, he now runs Turtle Talk, a leading blog covering American Indian law and policy, and directs MSU's Indigenous Law Program.

Congratulations on being cited in the Supreme Court. What was the work and how was it used?

The work is The Supreme Court and Federal Indian Policy, 85 Neb. L. Rev. 121 (2006). Justice Thomas quoted me in his concurrence arguing in Adoptive Couple v. Baby Girl (No. 12-399) that Congress likely did not have authority to enact the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. The quote was in a parenthetical and read: "As a matter of federal constitutional law, the Indian Commerce Clause grants Congress the only explicit constitutional authority to deal with Indian tribes".

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

At the time I wrote this piece (summer of 2005), I was untenured and writing for second-year law students, hoping for the best placement possible. I guess that also means I was writing for other scholars in the field who focused on Indian law and the commerce clause. I am more cognizant of my audience now. I now focus particular papers on particular audiences -- tribal judges, Indian lawyers, and other scholars. Occasionally I do try to target national policymakers, including Congress and the courts. I was pretty successful, if I don't say so myself, with a paper I wrote on the Indian Gaming Regulatory Act, which has been cited by five different courts.

Do you do anything in particular to share your work with practitioners?

I operate a law blog (Turtle Talk) in which I distribute all of my work -- I believe that the large majority of regular readers are practitioners. I distribute an enormous amount of primary research material (court cases, briefs, etc.) that most interests practitioners. Turtle Talk, I am told, is required reading for the higher-ups at the Bureau of Indian Affairs, the Interior Solicitor's Office, and the OSG. We're also trying to reach federal and state court clerks. I also give talks to judicial conferences and practitioner-oriented Indian law conferences.

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

Inspiring. I wrote two papers on the influence of Indian law scholarship on the courts: here and here. Judges and their clerks often face a steep learning curve in Indian law cases, and they continue to rely upon Indian law scholarship quite a bit. I think the critique of legal scholarship overall, especially from someone like the Chief Justice, is made partially in jest. It is often true that much legal scholarship is more theoretical than a judge can use on a practical level to answer a hard question in particular case. I've written a couple pomo articles, and a few articles on law and literature, that I don't expect to cited by any court. But I know they have been consumed by an audience, no matter how small. Some judges do find legal scholarship to be badly done, or are overwhelmed by the sheer mass of law review articles from which to draw, and some of those judges are loudly critical. I even suspect without knowing that for some judges the source of the discontent may be the rise of speciality law journals, most especially those associated with social justice, race, and gender. While I think the critique is overblown, it is generating fascinating and fruitful interactions between scholars and judges.  

Are you happy with the way your work was used?

Well, not really, but I feel silly complaining about it. The quotation of my work was largely out of context, though it wasn't untrue. It is telling that the citations in the footnote to my quoted sentence were to a legal scholar that Justice Thomas also quoted in the same opinion that tends to agree with his view of federal power in Indian affairs, Sai Prakash, and to a Supreme Court opinion that Justice Thomas is rallying against, the lead opinion in United States v. Lara. In fact, I wrote the article as a response to Justice Thomas's separate opinion in Lara where he makes similar arguments to those he made in Adoptive Couple. Nevertheless, I'm thrilled to be cited by any court and in any brief, anywhere. I'm hoping the larger picture I'm trying to paint is being seen in chambers.

What advice do you have for scholars who want their work to be influential in the courts?

Balance and depth. And pay attention to subject matter. I say balance because there are always opposing arguments, and the better you recognize those arguments and respond to them, the more likely you'll be seen as a serious scholar. Depth, because you're going to get the attention of the judges and their clerks in their research by citing all the important cases and scholars. For example, I can imagine Justice Thomas's clerk came across my paper because I cited Prof. Prakash extensively, and also perhaps because another scholar whom Justice Thomas relied on (Rob Natelson) cited me so much. And finally, subject matter -- in Indian law, it appears the easiest way to be cited by a court is to write a paper on a particular statute, and cover that statute to death from legislative history to regulatory implementation to judicial construction. You focus on cases, the courts don't seem to pick up on it. The focus on statutes, I believe, helps the courts because they need the background material to understand the statute, and then hopefully they are more likely to digest the scholarship.

Did your family or colleagues do anything for you when the opinion case out?

I was at a fantastic Indian law workshop at UCLA hosted by Angela Riley that day, so I received a lot of good-natured ribbing there from the people who tended to disagree with Justice Thomas. Also, I received several emails from friends and colleagues around the country along the same lines. My wife and colleague, Wenona Singel, probably had the best response of all, but I won't describe it. It was too perfect for words.