The Uneven Impact of Mistreatment on Law Clerks

Apr 25, 2024 Jade CraigAdd a Comment

Jade Craig

Aliza Shatzman, the founder of the Legal Accountability Project (LAP) and the author of The Clerkships Whisper Network, has kicked off a national conversation about the clerkship experience and lack of accountability for judges who mistreat their law clerks. It is important to continue to refine the information available to law students and alumni considering applying for clerkships. The many people who have great clerkship experiences should describe those experiences “in the rosiest of terms.” But referencing Charles Dickens’ A Tale of Two Cities, Shatzman identifies the paradox: “the best of circumstances, the worst of circumstances.” A clerkship lives at the extremes – if it is very good, it is wonderful and a blessing, and if it goes very badly, it can be the worst work experience one has ever endured. The work environment often revolves around one person – the judge.

Mistreatment does not affect all clerks equally, but may vary with the personal identity of the clerk. Some difficult work environments make it difficult for the employee to disentangle the mistake from the employer’s negative or abusive reaction. The employee starts to believe that perhaps it is their fault or they deserved the mistreatment. An employer who is a serial abuser often suggests the employee deserves the mistreatment, avoiding accountability for their actions or their part in the conflict. The first reaction for many employees is to internalize the criticism and blame themselves, deterring them from reporting the experience.

The risk of internalizing mistreatment increases for people who have endured childhood abuse or past trauma, whether physical, sexual, verbal, emotional or otherwise. Shatzman and LAP’s Clerkships Database seek to democratize access to information about clerkship experiences. In the effort to diversify the ranks of law clerks, it is important to be mindful of the imbalance in the past experiences that many law school graduates of color carry into their careers. Black and Latinx children are more likely to have adverse childhood experiences, including trauma and abuse, than their white counterparts. Children who experience abuse often adapt by believing that they are responsible for and deserve the abuse.

The road to healing from this trauma should include what psychologists call “corrective experiences.” A potential clerk deserves access to information about a judge and the work experience in that judge’s chambers that helps them decide if this environment will be healthy for them personally given their background and what they need from an early legal employment experience.

Access to information about prior clerks’ experiences helps students and recent alumni make the best decisions about whether to commit to working for a particular judge. But that transparency must extend to information about how the judge’s behavior affects students from particular backgrounds. If the judge has a habit of making racist comments or an employee of color found the experience difficult because of their race, that information should be shared with potential clerks. Likewise if the judge is insensitive or disrespectful toward women or demeans the experiences of LGBTQ+ individuals. It is hard to admit that a judge would have such biases that shape how they relate to employees from certain groups. But judges are a product of society, susceptible to the same biases, even if the behavior does not rise to the level of discrimination in a legal sense.

If a potential clerk accepts a clerkship based on faith and the best available information, that clerk may not find support if something goes wrong. Shatzman explains that the “legal community has created a culture of silence and fear around the judiciary: one of deifying judges and disbelieving law clerks.” The power and prestige afforded to judges leads many attorneys, law professors, and others in the legal profession to believe judges can do no wrong. They fear calling out the behavior and admitting that the Emperor is wearing no clothes. A clerk who reaches out to a mentor for advice in the midst of the crisis may find an unreceptive ear, including a focus on identifying all the ways the clerk may have contributed to the judge’s behavior rather than validation of their concerns and advice on advocating for themselves or ending the clerkship early.

Chambers is a whole employment ecosystem. As Shatzman explains, a “judicial chambers’ structure is both isolated and hierarchical: Two to four clerks, perhaps a judicial assistant, and a powerful judge work long hours behind locked doors in stressful circumstances.” The experience resembles a small law firm, with the judge as the senior partner, the courtroom deputy as a legal assistant, and the two to four clerks as junior lawyers. But those junior lawyers have fewer options for addressing mistreatment, as the federal judiciary is exempt from Title VII.

A judge’s management style, rather than the clerk’s behavior, may be the greatest contributing factor to a clerk’s negative experience. Some judges may delegate to long-term staff—judicial assistant, courtroom deputy (for trial-court judges), and career clerks—a role in managing clerks’ experiences. That leaves a clerk little or no recourse when the judge fails to intervene to prevent misconduct. The judge has every incentive to protect the key staff member who has served the judge for 30 years but who makes clerks’ lives miserable or to believe a clerk the judge has informally placed in a leadership position over another clerk who raises a complaint. To do otherwise would call into question the judge’s judgment and require them to do the uncomfortable work of managing change. Potential clerks need information about the judge’s preference for such a system of indirect management and how well it functions.

The legal profession relies on hierarchy to manage behavior, whether within a 1,000-attorney law firm or a five-person judicial chambers. The risk of losing a job practicing law and having it sully one’s reputation in the legal community can lead many young lawyers to suffer in silence or tolerate mistreatment. But as a non-attorney once told me when I dealt with a difficult legal employment situation, “You never regret standing up for yourself. Even if you lose that job, one thing you will not regret is that you stood up for yourself.” Providing transparent information about clerks’ experiences with judges can help recent law school graduates avoid having to learn this lesson the hard way, in a work environment with little protection and great stakes.

The Pendulum Swings of Access to Justice

Apr 4, 2024 Robin J. EffronAdd a Comment

Robin J. Effron

Theories of procedural justice have long contained explicit and implicit assumptions about the status of parties in the American civil justice system. Procedural rules and proposed reforms reflect beliefs that some parties are well-resourced and powerful and other parties are under-resourced and otherwise vulnerable. For several decades, commentators focused primarily on the needs of individual plaintiffs who faced uphill battles of time, money, and procedural barriers in accessing courthouse justice to vindicate their rights. They portrayed defendants as jockeying for procedural advantages of avoidance—everything from jurisdictional defenses to rules of pleading and discovery to broad powers of summary judgment existed to shield defendants from a merits-based confrontation before a jury.

In the past several years, however, scholars have begun to focus on vulnerable defendants, a class of litigants whose relative weaknesses were rendered nearly invisible by focusing on how parties fare in federal court. Pamela Bookman’s Default Procedures examines state-court rules for default judgments, adding to the growing literature on state-court procedures that have enabled a small group of relatively powerful plaintiffs to run roughshod over the debtors and tenants comprising a significant portion of the defendants in state court dockets.

Building on other recent empirical research, Bookman’s article is rich in detail about state default procedures and their effects on average defendants. Bookman demonstrates the considerable variance among state default-judgment procedures and recent efforts in some states to reform those procedures in response to the new scrutiny.

Procedures range from a traditional adversarial approach of rubber stamping plaintiffs’ complaints when defendants default—because the defendants’ default is treated as a waiver, a concession, or a justification for to the punishment of judgment—to recent reforms that require plaintiffs to include detailed substantiation of their claims with their pleadings, which also must anticipate and rebut common defenses like the statute of limitations. Although the changing landscape makes the scope of the problem and the effectiveness of procedural interventions even harder to describe, Bookman’s comprehensive assessment adds to the growing arsenal of scholarly documentation of the state of the law and the scope of the problems with default procedures.

While contributing to the growing call for procedural solutions to the default-judgment problem, Bookman’s signature contribution is situating the problem and the solutions as a conundrum for theories of procedural justice. The problem stems from the nature of default judgment as a procedural tool in an adversarial system. Adversarial justice demands active and thoughtful participation from all parties to litigation. Procedural rules should encourage vigorous participation in litigation without incentivizing overuse or misuse of public judicial resources. Herein lies the puzzle: efforts to ameliorate default-judgment problems caused by abusive plaintiffs risk emboldening abusive defendants, the likes of whom will never fully disappear from the litigation landscape.

Bookman targets four key stages of default. The first two stages—notice and the entry of default and default judgment—theoretically contain sufficient safeguards notifying the defendant of the pendency of the action and provide an opportunity to appear in the lawsuit to signal the intent to defend on the merits. The second two stages—procedures to set aside a default judgment and procedures for enforcing a default judgment—provide opportunities for post hoc challenges. While each stage serves important purposes in promoting procedural justice, the vision of procedural justice as occurring within an adversarial system limits effective reforms.

Most critiques and proposed reforms view default judgment as a problem of participation. That is, appearance in a lawsuit is the sine qua non of dispute resolution. Courts deter willful absence with sticks and ameliorate absence borne out of the inability or impracticability of appearance with efforts to enhance notice and lower the logistical and pecuniary barriers to appearing in a lawsuit. More aggressive reforms target participation. They seek to increase court access or to change areas of substantive law in which plaintiffs easily obtain default relief in the first place.

Bookman imagines a world of default procedures in which litigant participation is neither necessary nor discouraged. Paying attention to a recent array of state reforms, Bookman concludes that these reforms must be part of a larger systemic reform in which courts or court-adjacent entities can process claims fairly. Such systems would maintain the continuing availability of default judgment as a remedy while ensuring that defendants’ potential responses and defenses are given their due, regardless of whether a defendant can or does make an appearance at the outset of the lawsuit.

Most importantly, such systems account for the high volume of claims filed and default judgments sought in state courts. Many reforms will target plaintiffs–requiring more robust substantiation and requiring that courts have the personnel and capability to detect when a plaintiff’s case lacks the basic indicia of a meritorious claim. While this shifts from traditional adversarialism, it does not deviate from judicial neutrality. Instead, these reforms replace the rubber-stamping procedures that currently tip the scales in favor of certain plaintiffs in the first place.

Bookman’s analysis implicitly acknowledges that transsubstantivity must fall by the wayside when designing these procedural reforms. The problems of rubber-stamp default judgments appear in predictable categories of state-court cases—debt collection and landlord-tenant disputes. (While Bookman’s article targets debt cases, she acknowledges the importance of extended the analysis and reforms to other areas of law including landlord-tenant). The American adversarial ideal has procedure operate (largely) independently of the substantive law claims being asserted. But default judgments demand a turn in the other direction.

The Mismatched Goals of Bankruptcy and Mass Tort Litigation

Mar 19, 2024 Maureen CarrollAdd a Comment

Maureen Carroll

By the end of this Term, SCOTUS must decide what to do about the mammoth Purdue Pharma bankruptcy settlement. If allowed to go forward, the $10 billion deal will not only resolve claims against the company, it will shield the Sackler family—the company’s former owners—from any further liability for their role in the opioid crisis. The deal has generated a great deal of discussion, much of it focused on the legality and wisdom of that third-party release. The authors of Against Bankruptcy take a broader view, asking a set of critical questions about the proper role of bankruptcy in the resolution of mass torts. “What’s to be gained and what’s to be lost by the turn to bankruptcy?”

The turn to bankruptcy represents a new attempt to solve a decades-old problem. Mass-tort defendants have long sought “global peace,” an end to the flood of litigation arising from their allegedly harm-producing conduct. Absent a procedural mechanism capable of reducing the flood to a trickle, a defendant might reasonably fear that settling one set of cases will merely encourage the filing of others, especially if it appears that many potential claimants have not yet come forward. That fear, in turn, can stand in the way of settlements that would put meaningful relief in claimants’ hands.

For as long as defendants have sought global peace, creative lawyers have deployed unorthodox aggregation maneuvers to try to provide it. To contextualize the recent turn to bankruptcy, the authors tour earlier innovations, explaining how each fell short of its goal. Defendants created “private, corporate forms of dispute resolution [that] dominated throughout the twentieth century,” but those systems depended on the voluntary participation of claimants and their lawyers, who eventually decided that the judicial system could deliver better outcomes. State Attorneys General created the “AG Multistate,” in which AGs filed separate but coordinated lawsuits in their state courts, but dissatisfied cities and counties undermined that approach by filing their own actions in federal court.

Meanwhile, in federal court, litigants attempted to use class action settlements and multidistrict litigation–sometimes separately, sometimes in combination–as vehicles for achieving global peace. Because the lawsuits pulled into an MDL formally retain their individual character, however, settlement without class certification requires the affirmative consent of each litigant, while the Supreme Court’s 1997 decision in Amchem Products, Inc. v. Windsor made settlement classes difficult in mass tort cases. When parties to the In re Opiates MDL attempted to circumvent those barriers, deploying a mechanism they called the “negotiation class,” the Sixth Circuit shut them down. That decision set the stage for the parties’ turn to bankruptcy.

Unlike state or federal courts, bankruptcy courts have the power to stay all pending lawsuits against the debtor, regardless of where the cases were filed. The court overseeing the Purdue Pharma bankruptcy proceedings issued such a stay—embracing “all state AG actions, class actions, and multidistrict litigation”— and it remained in place for several years. The authors posit that the stay not only facilitated settlement, it “created the leverage that made the more controversial aspect of the deal possible.”

The authors contextualize that controversial aspect of the settlement by tracking the evolution, through asbestos cases and onward, of allowing non-bankrupt individuals to take advantage of the finality that bankruptcy offers to the debtor. In the case of Purdue Pharma, this approach involved “third-party releases from all future civil liability for the Sacklers and a channeling injunction that funneled already filed lawsuits against the Sacklers into the Purdue debtor trust instead.” In exchange, the Sacklers—none of whom have declared bankruptcy—agreed to contribute $5.5 to $6 billion of their personal fortunes to the settlement. If global peace defines success, these maneuvers have succeeded—they have “enabl[ed] mandatory settlement of mass-tort victims’ claims against solvent nondebtors across all federal and state courts.”

But the authors persuasively argue that, in the context of mass tort litigation, success should mean something more than the efficient reallocation of assets. It also should account for claimants’ reasons for bringing these types of lawsuits, including accountability and the opportunity to be heard, and it should respect those claimants’ choices about where, when, and whom to sue. On those metrics, the state and federal court systems do not fully succeed, but bankruptcy does much worse. Among other things, because of a bankruptcy court’s power to stay all other litigation, a bankruptcy filing “has become a powerful tool for short-circuiting civil trials and the bad press that can come from pretrial filings, discovery, and trial,” which are “the principal opportunities plaintiffs have to tell their stories.”

Unlike state or federal courts, bankruptcy courts are not designed to adjudicate tort claims, which causes bankruptcy proceedings to fall short along other important dimensions as well. Consider the information-forcing function of litigation, which has value in public-health mass torts. In litigation about guns and tobacco, for example, the discovery process yielded important information about pervasive industry misconduct, “teeing up issues for legislative intervention.” Bankruptcy courts, by contrast, focus on information about the debtor’s financial health rather than the nature and extent of their wrongdoing. Moreover, while bankruptcy courts have the authority to order discovery-like disclosures, they also have the power to seal public records—a power that “seems to get overused.”

Overall, this essay does a masterful job of contextualizing the quest for global peace and explaining why the turn to bankruptcy challenges traditional litigation values. Perhaps most importantly, it urges us to consider more seriously and explicitly “the foundational goals of our public adjudication system” and to evaluate the extent to which mechanisms for resolving mass torts actually satisfy those goals. Without such an evaluation, the quest for global peace will eventually yield another procedural innovation, and “the conversation will begin afresh without ever reaching the core questions about what litigation in public-harms cases is for and how to protect it.”

The Attorney-Client Privilege Goes to Washington

Mar 4, 2024 Christine BartholomewAdd a Comment

Christine Bartholomew

The 118th Congress has pursued a robust investigatory agenda, probing topics from the origins of COVID-19 to Hunter Biden to “greed in the pharmaceutical industry.” Such investigations are hardly new. But the future utility of such investigations may depend on a cryptic aside made by Chief Justice Roberts in the Court’s 2020 decision in Trump v. Mazars. Roberts stated that recipients of congressional subpoenas “have long been understood to retain common law and constitutional privileges,” including the ability to assert the attorney-client privilege. Scholars have spilled significant ink over the significance—if any—of this statement. In House Rules: Congress and the Attorney-Client Privilege, David Rapallo examines how to best understand Roberts’s statement. In doing so, he delves into an underexamined corner of evidence scholarship: the application of privileges outside of judicial proceedings.

Mazars did not involve an assertion of privilege. Consequently, as Rapallo explains, some scholars dismiss Roberts’ statement as “nothing more than erroneous and ill-informed dictum.” Others view the statement as affording subpoena recipients absolute protection for attorney-client communications, representing a “sweeping change.” It would mean the judiciary—not Congress—decides the evidentiary rules that apply to congressional investigations. While Roberts discussed only the attorney-client privilege, continuing down that road could require Congress to recognize other privileges or evidentiary rules rooted in common law.

Rapallo threads these two extremes by suggesting a third path to understand Roberts’ statement: “[r]ecipients of congressional subpoenas who are compelled to produce information to Congress retain their right to assert the attorney-client privilege in other venues.” For those versed primarily in how privileges work in judicial proceedings, the notion that the attorney-client privilege may not apply to all investigatory proceedings may seem surprising. But Rapallo makes a compelling case from a somewhat surprising starting point: separation of powers.

Rapallo details how Congress—not the judiciary—should decide whether the attorney-client privilege applies to its investigations. Congress is bound to respect privileges grounded in constitutional rights, such as executive privilege. It has the authority, however, to decide to what extent, if any, to adopt common law privileges. Although this power is not unlimited, the Constitution provides Congress the independent authority to establish its own rules necessary to effectuate its granted authority to investigate.

Thus Congress—and Congress alone—has the authority to decide which common law evidentiary rules apply to its investigations. “The Constitution does not require either the House or Senate, when acting pursuant to its Article I rulemaking authority, to seek or obtain the consent of the [judiciary or] the President.” For the judiciary to impose a requirement that Congress honor a common law privilege would leave Congress beholden to rules imposed by a separate branch of the government. And, as Rapallo illustrates in recapping practice to date, neither the House nor the Senate has ever required committees to afford privileged attorney-client communications absolute protection. Rather, Congress has adopted its own posture as to assertions of the privilege, instructing a committee to “weigh [] its investigative need for information against the public policy interest served by the privilege and any possible harm to the witness.”

Scholarship urging more limited or tailored application of privileges—including my work on the clergy privilege—often highlights the danger of overly broad applications. Privileges shield otherwise relevant evidence, which can have tremendous evidentiary value and still be excluded from consideration if a privilege is absolute. Rapallo acknowledges these dangers. But rather than delve too deeply into the extrinsic social policies underlying the attorney-client privilege, he builds the remainder of his argument through a methodical discussion of congressional oversight precedents, recent oversight committee case studies, and judicial precedents. These combined sources compellingly show that there is no long-existing understanding that the privilege applies equally to judicial and congressional proceedings.

In staking his claim, Rapallo avoids overclaiming, drawing a line between common law privileges and those grounded in the Constitution. He sidesteps political pitfalls, using examples from across the political spectrum to prove that “Democratic and Republican chairs alike have been obtaining attorney-client communications for decades to fulfill their constitutional responsibilities.”

For me, this article executes a few feats. It sheds light on a curious corner of evidence law, where much scholarship focuses on judicial proceedings without much consideration for other contexts. Rapallo’s article truly succeeds by decoding the cipher left behind by Roberts in a way that could appease those on different sides of the existing scholarly debate. In the absence of his contribution, Congress and the judiciary would remain on a collision course. Those seeking to hamstring Congress’ investigatory powers would route every evidentiary question back to the judiciary, inviting prolonged investigations and diminished access to relevant information.

There is a beauty in weighing in on an existing scholarly debate by saying both sides are a little right and a little wrong—and doing so in such a compelling, thoroughly researched manner. Offering a resolution for a single evidentiary query applicable to a particular segment of congressional work may facially seem inconsequential. But at a time of political gridlock, any road forward is a welcome one.

Investigating the When and Why of the First Black Jurors

Feb 20, 2024 Suja A. ThomasAdd a Comment

Suja A. Thomas

Thomas Frampton’s article The First Black Jurors and the Integration of the American Jury reads like an exciting book giving us a new perspective on the first black jurors. It helps us better understand the jury as a democratic institution.

We know juries decide few cases—less than 1% of civil cases and less than 4% of criminal cases. And we are still trying to discover why. The question is complicated. At least one scholar has proffered that it may have to do with race—that as the jury has become more diverse, juries have disappeared.

This narrative makes Frampton’s article even more interesting. To understand more about whether diverse juries have led to fewer jury trials, we need to discover when and why juries became diverse. The answers to these questions also help us think about other important rights such as citizenship.

The accepted history tells us the first black jurors served in 1860. They were William H. Jankins and Francis Clough, who lived in Worcester, Massachusetts. Frampton explains that this history is wrong. Through his extensive research of a variety of sources such as court minutes, jury lists, tax rolls, censuses, legislative petitions and marriage rolls, he has found black jurors who served prior to 1860—in 1820, 1843, and 1855. Despite his title “The First Black Jurors,” he also anticipates that other researchers will find the real first black jurors in the future.

In addition to correcting the narrative on the timing of the first black jurors, Frampton shows how the narrative of how black people became jurors has generally been a false one. Instead of Congress and the courts creating the opportunity for black people to be jurors, black people themselves created these opportunities through movements to gain access to the jury box. Additionally, Frampton helps us think differently about the relationship of citizenship and jury service. He writes that we usually think of the recognition of citizenship for black people leading to the right to serve as jurors. His research “inverts” the narrative to serving as jurors leading to citizenship.

Frampton discovered that Andrew Barland in Jefferson County, Mississippi was the “first” black juror. Although Barland served as a juror, as expected of that time, there were many limitations. Frampton describes black jurors as wealthier than other people of color, lighter in complexion, and men. Barland was a light skinned man whose father was white. He had wealth, including owning slaves. However, Barland’s ability to serve was limited. He served at the behest of others who determined whether he was worthy to serve. Frampton describes an interesting set of events where after Barland served as a juror, he was a defendant in a case. In this case, he could not testify because of his race. As a result of that case, Barland later loses his right to be a juror when a court disqualified him saying he was not eligible because he was not a citizen. We hear about the support of white people for Barland to retain his service, including officials like the clerk of the court and the sheriff.

Frampton contrasts Barland with other free people who did not have Barland’s power. They attempted to gain the right to be a juror in different ways and for different reasons. For example, Barland sought the right to be a juror for more personal reasons. Differences aside, Frampton says black jurors seemed to generally understand that the exercise of jury rights evidenced their citizenship.

Abner H. Francis, the next black juror newly discovered by Frampton, lived in Buffalo, New York and served in 1843. He was wealthy like Barland, but he became a juror because of political activism, specifically a large gathering of people of color and a convention of the Liberty Party. Frampton also briefly discusses the service of John Berry in 1855 in Watkins, New York. Berry was also an activist in some ways. Finally, we hear about the jurors most historians mention—William H. Jankins and Francis Clough. They too were activists for black people’s rights.

In this piece, Frampton gives us something interesting to think about—to reframe how we think about juries, their decline and the importance of the right to serve as a juror to the right to citizenship. Black jurors existed prior to when we think they did. Often they came as a result of black activism. We may want to think about whether citizenship leads to jury rights or jury rights to citizenship. Also, we may want to think about whether jury rights are civil or political rights. Finally, Frampton’s work recognizes that historians have thought of citizenship as not existing or barely existing prior to Dred Scott—maybe citizenship did—through service on juries.

We can also think about the when and why of black jury service in this way. If activism as opposed to actions by institutional players such as the legislature or the courts drove diversity in juries, it may be easier to see a link between increased diversity and the decline of juries, especially when we see those institutions contributing to the jury’s decline—see Anderson v. Liberty Lobby, Twombly, Bordenkircher v. Hayes, caps on damages, mandatory minimums, etc.

Ordinary Law, Constitutional Torts, and Governmental Accountability

Feb 5, 2024 James E. PfanderAdd a Comment

James E. Pfander

The Supreme Court oversees a system of government accountability that has attracted a range of familiar and persuasive criticisms. Rather than basing liability on generally applicable legal principles, the Court has applied doctrines of sovereign and official immunity that block many of the suits brought by victims of undue government violence. The Court has sought to balance the interests of the public in assuring zealous law enforcement and the interests of the victims in securing redress when excessive zeal results in injuries. Few believe that the Court has struck the proper balance. Its doctrine of qualified immunity shields all but the plainly incompetent or deliberately malicious from liability in the name of eliminating the chilling effect of personal liability—a threat neutralized by the widespread practice of indemnification. The search for clear law, the touchstone for immunity decisions, entails scholastic inquiries into legal nuances that do not obviously shape the behavior of officers on the job.

One can measure just how far wrong the Court has gone in a variety of ways: by toting up examples of clear injustice in the cases; by examining the culture of law enforcement and how it encourages violent confrontation; by comparing the liability rules in place today with those that governed police work in years gone by. But we have largely lost sight of one key measure of legal performance: how well does our system of government accountability compare to the rules of tort law that govern ordinary citizens in ordinary proceedings before ordinary courts. Largely, but not perhaps completely lost sight, thanks to the comparative work of Canadian legal scholar Sam Beswick. In the arresting paper at the center of this jot, Equality Under Ordinary Law, Beswick compares government accountability litigation under the Diceyan model of ordinary law in Canada with the qualified forms of constitutional tort liability that prevail in the United States. Beswick shows, unsurprisingly, that the Diceyan model outperforms the American system in providing some measure of redress to the victims of wrongful official conduct.

For a time, the United States followed Great Britain in relying on the common law of tort as one important source of redress for unlawful official government conduct. That tradition, reflected in such well-known nineteenth century cases as Little v. Barreme and United States v. Lee, found its most iconic restatement in the work of British constitutional scholar A.V. Dicey. Working in the latter half of the nineteenth century, Dicey characterized the duty of government officials to comply with the ordinary rules of tort law applied by ordinary courts as the essence of British constitutionalism and the rule of law. Such a conception of ordinary law in ordinary courts continues to undergird government accountability litigation in such commonwealth countries as Canada, Australia, and New Zealand.

For many years, the United States has distanced itself from the Diceyan model, relying instead on constitutional norms, statutory rights to sue, and declaratory and injunctive relief. More recently, the Court essentially declared its independence from that measure of remedial adequacy. That striking declaration occurred in Hernandez v. Mesa, rejecting the Bivens claims of the parents of the young man killed at the Mexican border by a federal agent. The Court acknowledged that, throughout the nineteenth century, the common law system of remedies had provided the measure of official liability for tortious conduct of officers such as Agent Mesa. That system of remedies quite clearly extended liability to tortious conduct that occurred beyond the territorial boundaries of the United States. But the Court did not view the common law baseline as a relevant measure of modern government accountability. It theld that the family could not recover for border patrol actions that inflicted injuries across the culvert that separates the two countries. In pushing aside the common law as a source of comparative insight into the proper scope of official liability, the Court disassociated the United States from a long common law tradition of equality under law.

To see the consequences of that declaration of independence, consider Beswick’s assessment of the operation of Diceyan framework in Canada. On Beswick’s telling, the Diceyan model calls for ordinary rules of tort to apply, subject to an official defense of authority. Individuals may bring suit on their own initiative, with no obligation to exhaust remedies or petition the government for leave to proceed. Ordinary tort law supplies the measure of liability: assaults and batteries demand compensation unless justified. Justification depends on the officer’s ability to show that some applicable statute or regulation authorized the use of force in question. Without authority, officers bear personal liability (subject, of course, to indemnification) for the injuries they inflict.

Beswick shows that the Diceyan approach, though far from perfect, provides a greater measure of protection for individuals in the Commonwealth than does the constitutional tort framework in the States. Across a broad range of official misconduct, Canadian courts prove far more willing to impose liability for excessive force than their counterparts in the United States. In Canada, a detained plaintiff recovered damages in tort after having been the target of a retaliatory use of pepper spray; in the United States, a similar claim was dismissed. Beswick also finds a disinclination on the part of state courts in the United States to allow state tort claims to proceed against state law enforcement officials; one officer who shot a “skat” shell into a crowded prison hall, despite the various warnings against the use of such shells indoors, was immunized from liability for the injuries predictably inflicted.

Mistakes of fact and law offer another good comparative example. When Canadian officers mistakenly execute a search warrant on the home, they face liability if they act unreasonably. In the United States, one must establish more than unreasonable conduct; one must identify judicial precedent clearly holding the conduct in question committed in similar circumstances to have been unreasonable. That proved fatal to the claims of an innocent elderly man who happened to live next door to the targets of a search warrant and was grievously injured when officers got the address wrong.

Canada has also declined to follow decisions in the United States that immunize officers for good-faith mistakes of law. Or consider Egbert v. Boule, the Court’s most recent Bivens case. Boule brought claims against a federal officer who roughed him up at the front of the Smuggler’s Inn, his building on the border between Washington and Canada. While one can only speculate as to how Canada might have assessed the claims had the police misconduct occurred on the other side of the border that ran through the Inn’s backyard, one can say for certain that the Canadian courts would not follow the Supreme Court of the United States in dismissing on the basis that the victim had no right to sue.

Beswick’s assessment provides a welcome baseline against which to test the comparative effectiveness of the two systems in ensuring redress for law-enforcement misconduct. Of course, a full comparative assessment would call for some attention to the findings of criminologists. We might ask if Canada’s commitment to rule-based redress for government wrongs has hampered law enforcement or led to a spike in the crime rate. Statistics show Canada’s consistently lower homicide rates. While such blunt comparisons do not capture many important considerations, we at least can say that the more effective system of redress in Canada does not appear to have occasioned such law-enforcement laxity as to make Canada a more dangerous place in which to live.

Not the Final Word or Judgment on Manufactured Finality

Jan 17, 2024 Linda S. MullenixAdd a Comment

Linda S. Mullenix

In the great restructuring of first year civil procedure courses during the 1990s, one of many topics to fall victim to civil procedure triage was the final judgment rule and doctrines of appellate jurisdiction. Historically, the Supreme Court was highly engaged with the final judgment rule. During the 1980s the Court — seemingly obsessed with the collateral order doctrine — issued new decisions nearly every year concerning whether various court orders fell within this judicially created exception to the final judgment rule. But then the guns of the collateral order doctrine fell silent. For nearly four decades the Court did not consider the rule and its exceptions until Microsoft Corp. v. Baker in 2017.

In Manufacturing Finality, Bryan Lammon resuscitates academic discussion of the final judgment rule and the new inroads on interlocutory appeals presented by Microsoft. Making passing reference to statutory exceptions in Rule 54(b) and 28 U.S.C. § 1292(b) and no mention of the collateral order doctrine or mandamus, Lammon focuses on the finality that the Microsoft plaintiffs unsuccessfully sought to manufacture, which Lammon characterizes as the new “hot topic” in procedure.

Lammon offers the Microsoft decision as the archetype of manufactured finality. In Microsoft, a federal district court denied the plaintiffs’ class certification and the Ninth Circuit declined to exercise interlocutory jurisdiction under Rule 23(f). The rebuffed plaintiffs voluntarily dismissed their individual claims with prejudice and then sought appellate review from that final decision. The Supreme Court rejected the effort, holding that a voluntary dismissal is not a final decision under § 1291.

Lammon engages with post-Microsoft litigant efforts to manufacture finality and thereby accomplish an end-run around the final judgment rule. He identifies two characteristics of manufactured finality, while admitting they constitute a broad and not terribly helpful definition. First, the decision resolves fewer than all claims in an action. And second, litigants seek to produce a “final decision” ending district court proceedings by some means other than an adversarial resolution of all unresolved claims.

Most of these techniques involve variations on Rule 41 dismissals, most frequently voluntary dismissals. Courts have struggled to apply Microsoft and have split on how it affects attempts at manufactured finality in an array of cases. Lammon’s article provides the definitive catalogue of manufactured finality. He undertakes a nuanced understanding of how litigants engage in assorted conduct to effectuate manufactured finality. He drills down into an array of variables that distinguish different types of manufactured finality and creates typologies of interlocutory orders and means that claimants use to abandon claims, pause claims, or seek adverse judgment of claims. He then exhaustively describes how appellate courts have endeavored to apply the Microsoft limitation on manufactured finality in ever-varied procedural maneuvers. One is reminded, surveying this array of emerging jurisprudence of manufactured finality from numerous court orders, of the twists and eddies of collateral order jurisprudence from an earlier era.

Lammon claims that he does not intend merely to discuss the contours of manufactured finality in the wake of Microsoft. Rather, he grandly suggests that Microsoft and its progeny raise larger questions about federal appellate jurisdiction and the final judgment rule, and how we define finality for the purpose of end-of-proceedings appeals. He suggests that the problem of manufactured finality might give rise to an alternative conception of finality that turns on the simple question of whether the district court has finished with an action. He suggests that the emerging manufactured finality jurisprudence might inspire a reassessment of the role of parties in determining when appeals should come, on the (perhaps controversial) view that litigants might be good at identifying the circumstances warranting immediate appeal and should be granted greater control over the issue.

Lammon’s article is an ambitious undertaking of this intellectual niche of manufactured finality. It is worth reading for his identifying problems with the final judgment rule and questioning received concepts of finality. He concludes by suggesting that studying the new doctrine of manufactured finality causes one to look beyond Microsoft and think about new, simpler, and better ways of defining finality and final judgments and new, simpler, and better ways of allocating power to decide when and how appeals are appropriate.

Balancing Act: The Federal Judiciary as Both Arbiter and Participant Constitutional Structure

Dec 14, 2023 Fred O. Smith, Jr.Add a Comment

Fred O. Smith, Jr.

Federal judges, when deciding on separation-of-powers issues, are not neutral referees in our three-part federal system; they are participants in it. This key observation forms the foundation of Payvand Ahdout’s article. Expanding on this insight, Ahdout argues that in resolving disputes, federal judges frequently refrain from forcing high-ranking federal officials to perform specific actions. She terms this “separation-of-powers avoidance,” a strategy evident in various legal situations, including executive privilege and congressional power to issue subpoenas and file lawsuits. She identifies three categories of separation-of-powers avoidance: embedded avoidance, process avoidance, and fortified avoidance.

In the “embedded model,” courts approach and interpret legal doctrines with an emphasis on circumventing separation-of-powers conflicts. This approach is exemplified by the Supreme Court’s handling of a discovery dispute in Cheney v. U.S. District Court.  An organization called Judicial Watch sued the Vice President Dick Cheney under the Federal Advisory Committee Act, seeking information about the newly formed National Energy Policy Development Group.  The district court issued discovery orders requiring the Vice President and other high-ranking executive branch officials to disclose information about the group. But Cheney resisted. Without explicitly invoking executive privilege, he petitioned the D.C. Circuit for a writ of mandamus to stop the district court from requiring the disclosure. The D.C. Circuit ruled against Cheney, reasoning that the executive branch must assert executive privilege explicitly to protect itself from discovery. But the Supreme Court reversed, urging against needless constitutional confrontations between the branches. In so doing, it interpreted discovery requirements through the lens of separation-of-powers.

Through the “process model,” appellate courts sometimes vacate a lower court’s decision not because it is legally incorrect, but because the lower court gave inadequate attention to separation-of-powers considerations. The Court applied this model in Trump v. Mazars USA, LLP, a case involving congressional subpoenas for tax documents related to the sitting President from various financial institutions. Three House subcommittees issued four subpoenas to gather information about President Trump, his children, and their associated businesses, purportedly to aid Congress in its legislative duties. Trump filed a suit in federal district court, seeking to halt enforcement of the subpoenas and arguing the subpoenas exceeded the House’s constitutional authority.

The district court ruled against Trump and the D.C. Circuit affirmed, both determining that the subpoenas served a valid legislative purpose, given the relevance of the requested information to potential reforms in financial disclosure requirements for Presidents and presidential candidates. The Supreme Court vacated because the lower courts failed to adequately consider separation-of-powers concerns. As Ahdout puts it, the Supreme Court concluded “the decision below was not ‘separation of powers-y’ enough.” The Court instructed the lower court to evaluate, for example, whether the legislative intent cited justifies the significant step of involving the President and his personal papers; whether the scope of the subpoena was sufficiently narrow; and whether compliance with the subpoena would impose an undue burden on the President.

In the “fortified model,” courts use separation of powers to reinforce existing jurisdictional rules, aiming to sidestep separation-of-powers conflicts. Ahdout’s key example is Raines v. Byrd. Federal legislators challenged the constitutionality of the line-item veto, a technique that allowed a president to delete certain items from a congressionally authorized bill before signing it into law. The Court ruled that the legislators did not have Article III standing, partially relying on separation-of-powers concerns. The Court emphasized the need for “especially rigorous” scrutiny in cases that compel the judiciary to assess the constitutionality of actions taken by other government branches. And as Ahdout makes clear, the Court’s high standard for standing was based on the parties’ roles in the federal government, rather than the separation-of-powers implications of the underlying merits. Ahdout observes that the Supreme Court addressed the underlying substantive constitutional question the following year in Clinton v New York, holding that the line-item veto was unconstitutional. The “especially rigorous” language from Raines did not appear in the Court’s opinion in a case not involving members of one branch suing another.

Ahdout’s three-part taxonomy is novel, useful, and dazzlingly sophisticated. But she does not stop there. Her descriptive insight has normative implications: Because federal courts are actors, rather than mere arbiters, when they resolve separation-of-powers disputes, other governmental actors should be cautious about placing too much weight on the judiciary’s statements about separation of powers. When non-judicial actors apply judicial statements emanating from avoidance outside legal proceedings, it can distort the public’s and legal community’s understanding of the proper division of governmental powers.

Ahdout offers a compelling example of this distortion through the implications of Cheney. The Office of Legal Counsel (OLC) leverages Cheney and related cases to strengthen executive privilege in scenarios unrelated to Article III courts or to potential complications from asserting privilege in federal courts. OLC has used Cheney to argue that Congress, despite its independent power to check the executive, has limited oversight authority over the Executive Office of the President. These legal rulings set the groundwork for negotiations between Congress and the executive branch, giving the latter judicial imprimatur to withhold information from Congress. The executive branch also employs Cheney’s language in public discourse to reinforce executive privilege, influencing public opinion.

Ahdout could have enhanced here normative argument with more examples illustrating the type of distortion she so astutely identifies. Additional examples could have helped readers better understand and appreciate the scale and scope of this problem. Is there evidence, for example, that the cases of Trump v. Mazars USA, LLP and Raines v. Byrd have had the same distorting effect as Cheney v. D.C. Circuit?

Similarly, she might explore how the avoidance of separation-of-powers issues influences our comprehension of federal branches’ powers in relation to other separation-of-powers decisions that do not use such avoidance. Separation-of-powers avoidance is a precise and narrow concept; “it is a dispute-resolution tool used to avoid compelling a coordinate-branch official to act when a court is presented with a separation-of-powers conflict.” This raises questions: Are there distinct separation-of-powers principles in these scenarios that are not apparent in other contexts? Or is overreliance on judicial opinions for understanding separation of powers always problematic, with separation-of-powers avoidance highlighting a more pervasive concern? The paper leaves these questions somewhat unresolved.

The paper is a tour de force at the descriptive and theoretical level. It provides a fresh perspective on the judiciary’s role in shaping the separation of powers within the U.S. government. Her thorough analysis, combined with the innovative framework she presents for understanding judicial avoidance strategies, makes this article a valuable resource for scholars, legal practitioners, and anyone interested in the dynamics of separation of powers.

An End Without Argument: The New Judicial Politics of Legal History

Dec 1, 2023 Steve VladeckAdd a Comment

Steve Vladeck

When Congress chartered the federal judicial system in the Judiciary Act of 1789, the creation of a chief legal officer for the government—an attorney general—was almost an afterthought. Congress addressed the issue only in the last sentence of the last of the statute’s 35 sections, and the language it used is surprisingly vague about how such an important federal officer was to be selected—providing only that “there shall also be appointed a meet person, learned in the law, to act as attorney-general for the United States . . . .” That passive voice was deliberate; the original draft bill adopted by the Senate would have had the Supreme Court appoint the Attorney General (a model that Tennessee still follows today). Muddying the waters left it open for the President to fill the position, as George Washington shortly would with Edmund Randolph.

This historical episode has been oft- and well-recounted, including by Susan Low Bloch in her canonical 1989 Duke Law Journal article on the early role of the attorney general. But it also seems like an obvious data point for contemporary debates over the “unitary executive” theory of presidential power: If the First Congress was so profoundly ambivalent about the President’s power to even select (let alone control) an officer as central to the enforcement of the laws as the Attorney General of the United States, that calls into some question the certitude with which some contemporary judges, justices, and scholars have defended the unitary executive on originalist—as opposed to normative—terms. Andrea Katz and Noah Rosenblum’s Removal Rehashed targets that certitude.

They provide a powerful and persuasive rejoinder to a recent example of such self-assured originalist-infused executive power scholarship—The Executive Power of Removal, by Aditya Bamzai and Saikrishna Bangalore Prakash. As Katz and Rosenblum describe, Bamzai and Prakash’s article “aims to persuade readers that the President’s power to remove executive officers is exclusive and nondefeasible; textually mandated; and a matter of common assent at the time of the Founding.” But in Katz and Rosenblum’s words, the article “fails to persuade on its own terms. It fails to seriously respond to critics of unitary theory. And it presents some of its sources in a way that could mislead less historically informed readers.”

Maybe it is a good idea for the President to have the unfettered ability to appoint and remove all executive officers; maybe not. But as the Supreme Court has moved ever closer to holding that the Constitution requires such an “indefeasible” executive removal power, scholarly focus has shifted to whether Founding-era practice supports such an understanding of executive power in the first place.

That’s where Katz and Rosenblum come in, highlighting  a series of disagreements among key Founding-era players as to whether an indefeasible removal power was part of the executive power, including Alexander Hamilton changing his own mind on the question. The point is not that these historical data points prove a consensus against an indefeasible removal power. It is that “[a] profusion of divergent views is a major stumbling block for an interpretive theory that depends on an imagined consensus.” Katz and Rosenblum also highlight the substantial evidence from Founding-era government institutions other than the three “great departments,” which appears inconsistent with an indefeasible removal power. In these respects, Katz and Rosenblum (concisely and effectively) rehash some of the critiques of unitary executive scholarship that have been around for decades—as they themselves acknowledge.

But Katz and Rosenblum’s piece rises above that fray in two respects. The first is in its methodological critique of Bamzai and Prakash. For instance, in a battle over the meaning of a provision of Pennsylvania’s 1776 Constitution, Katz and Rosenblum persuasively show how Bamzai and Prakash not only misread a critical interpretation by the “Council of Censors” (a key interpretive body) in a way that ignores powerful countervailing evidence, but how their “selective quotation retrojects what is an interpretive argument into a complex text.”

To similar effect, Katz and Rosenblum show how Bamzai and Prakash overread examples from both the Adams and Jefferson administrations—examples that not only do not all include “removals” of officers, but that do not obviously establish that the removal powers exercised by the second and third presidents were understood to be (or, in fact, were) indefeasible. Katz and Rosenblum are careful not to overclaim themselves; their point, over and over, is that careful consideration of the relevant historical sources is messy and does not lend itself to a single, overarching narrative of one, unitary Founding-era understanding. Echoing Dutch historian Pieter Geyl’s famous definition of history (as “an argument without end”), Katz and Rosenblum show that efforts to claim a uniform Founding-era understanding of executive power are not just unpersuasive as a matter of contemporaneous evidence; they raise serious methodological questions about the practice of legal history.

This last point, to which Katz and Rosenblum devote their conclusion, is what makes this piece especially important—and compelling. As Bamzai and Prakash acknowledge, the debate over Founding-era understandings of executive power “is not merely a faculty-lounge quarrel.” The Supreme Court is in the midst of a series of paradigm shifts in its separation-of-powers jurisprudence, one in which an indefeasible executive removal power may soon be in the offing. And although Justice Gorsuch’s concurring opinion in West Virginia v. EPA may suggest that a string citation to articles on one side of a debate provides an adequate rejoinder to the substantive claims of articles on the other side (in Katz and Rosenblum’s words, “[c]itation took the place of argument”), scholars bear a higher obligation. That the Supreme Court will not take legal history seriously provides all the more reason why the academy must do so. And the fact that two pre-tenure scholars are willing to lead the way in criticizing “the judicial politics of legal history” is a hopeful sign in that regard. We should all aspire to follow their—and not the justices’—lead.

How is the Discovery Water Here?

Nov 20, 2023 Sergio J. CamposAdd a Comment

Sergio J. Campos

Recently I have looked internationally to address the civil procedure problems that keep me up at night. There are other legal systems, after all, and the U.S. way of doing things is not the only (or even best) way. Comparing procedural systems may reveal things about our own system that are easy to miss. One is reminded of the David Foster Wallace story about fish in water:

There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says “Morning, boys. How’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes “What the hell is water?”

Rick Marcus, a true master of the field, helps us notice the water of discovery with an article written for a festshrift honoring Italian procedural scholar Nicolo Trucker. Marcus speaks from a position of significant authority. Along with being a co-author of the leading civil procedure treatise and a leading procedure casebook, Marcus serves as the reporter for the Advisory Committee on Civil Rules, the ad hoc committee responsible for review and amendments of the Federal Rules of Civil Procedure.

The article discusses the “exceptional” nature of American discovery. This may surprise those familiar only with U.S. litigation. It certainly surprised me when I began practicing and worked on my first transnational case. In civil law jurisdictions there tends to be 1) greater oversight by the judge, 2) fewer tools for the parties to compel disclosure of potential evidence from each other and third parties, and 3)  principles such as nemo tenetur edere contra se that further limit what can be compelled in litigation. Many view the U.S., by contrast, as a place where expansive, party-controlled discovery offers a powerful tool to enforce the law that parties can abuse to induce the settlement of frivolous claims.

Nevertheless, Marcus challenges this view of American discovery exceptionalism. He first provides a historical background of how the U.S. adopted expansive discovery, traced to an overzealous law professor including every discovery tool in the book during the drafting of the first set of Federal Rules of Civil Procedure in 1938. Further reforms lead to a high-water mark in the late ‘60s and early ‘70s – a mark that remains for many the classic picture of U.S. discovery.

But reform efforts starting in the late 70s and extending until today have changed that picture. Recent reforms have led to more judicial oversight and a renewed focus on proportionality to limit what parties can ask for. Those reform efforts are hard to see due to the rise in electronic communications and other electronically-stored information (ESI), which magnifies the volume of discoverable information. Discovery still looks expansive and free-wheeling in the U.S. despite the considerable reforms to curtail it.

Marcus argues that American discovery today is closer to a civil law model that places more judicial control over discovery and more restrictions on what can be discovered. At the same time, the ELI/UNIDROIT Model European Rules of Civil Procedure, introduced in 2020, has moved somewhat closer to “American-style discovery” by eschewing the nemo tenetur edere contra se rule and urging courts in their discovery orders to ensure that “each party . . . have access to all forms of relevant and non-privileged evidence.” Admittedly, the comments to the Model Rules state that they are “very different from US-style discovery.” But, as Marcus shows, US-style discovery is not what it used to be.

Of course, not every European country will adopt the Model Rules. Moreover, differences in the scope of relevance, as well as different attitudes regarding privacy interests, create some notable differences between U.S. and non-U.S. discovery systems. And it is unlikely that non-U.S. systems will allow parties to issue a subpoena without first going to a court, as in the U.S.

But, Marcus notes, “[t]hose divergences may not endure,” citing a 2021 RAND study concluding that “national approaches to mass claims will ultimately converge on something more like the U.S. aggregate and collective litigation model than conventional civil litigation in civil law regimes.” Indeed, comparative procedural scholars in non-U.S. settings have highlighted the benefits of expansive information-sharing for the administration of justice.

I like this piece lots. Like all of Marcus’s writings, it is beautifully written and easy to read. Marcus has a gift for conveying the complexity of his subject and his own mastery of it in an accessible, non-intimidating way. And the piece corrects some common stereotypes about U.S.-style discovery and information gathering in non-U.S. jurisdictions. Indeed, as other jurisdictions look to U.S.-style discovery as a source of inspiration (or a cautionary tale), we can also look to other systems to inform our own attempts to tame discovery.