The Journal of Things We Like (Lots)
Select Page

The Attorney-Client Privilege Goes to Washington

David Rapallo, House Rules: Congress and the Attorney-Client Privilege, 100 Wash. U. L. Rev. 455 (2022).

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.

Cite as: Christine Bartholomew, The Attorney-Client Privilege Goes to Washington, JOTWELL (March 4, 2024) (reviewing David Rapallo, House Rules: Congress and the Attorney-Client Privilege, 100 Wash. U. L. Rev. 455 (2022)), https://courtslaw.jotwell.com/the-attorney-client-privilege-goes-to-washington/.

Investigating the When and Why of the First Black Jurors

Thomas Frampton, The First Black Jurors and the Integration of the American Jury, 24 N.Y.U. L. Rev. __ (forthcoming, 2024), available at SSRN (Sept. 5, 2023).

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.

Cite as: Suja A. Thomas, Investigating the When and Why of the First Black Jurors, JOTWELL (February 20, 2024) (reviewing Thomas Frampton, The First Black Jurors and the Integration of the American Jury, 24 N.Y.U. L. Rev. __ (forthcoming, 2024), available at SSRN (Sept. 5, 2023)), https://courtslaw.jotwell.com/investigating-the-when-and-why-of-the-first-black-jurors/.

Ordinary Law, Constitutional Torts, and Governmental Accountability

Samuel Beswick, Equality Under Ordinary Law, 106 Sup. Ct. L. Rev. __ (forthcoming, 2024) available on SSRN (Nov. 9, 2023).

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.

Cite as: James E. Pfander, Ordinary Law, Constitutional Torts, and Governmental Accountability, JOTWELL (February 5, 2024) (reviewing Samuel Beswick, Equality Under Ordinary Law, 106 Sup. Ct. L. Rev. __ (forthcoming, 2024) available on SSRN (Nov. 9, 2023)), https://courtslaw.jotwell.com/ordinary-law-constitutional-torts-and-governmental-accountability/.

Not the Final Word or Judgment on Manufactured Finality

Bryan Lammon, Manufactured Finality, 69 Vill. L. Rev. ___ (forthcoming, 2024), available at SSRN (Sept. 14, 2023).

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.

Cite as: Linda S. Mullenix, Not the Final Word or Judgment on Manufactured Finality, JOTWELL (January 17, 2024) (reviewing Bryan Lammon, Manufactured Finality, 69 Vill. L. Rev. ___ (forthcoming, 2024), available at SSRN (Sept. 14, 2023)), https://courtslaw.jotwell.com/not-the-final-word-or-judgment-on-manufactured-finality/.

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

Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360 (2023).

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.

Cite as: Fred O. Smith, Jr., Balancing Act: The Federal Judiciary as Both Arbiter and Participant Constitutional Structure, JOTWELL (December 14, 2023) (reviewing Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360 (2023)), https://courtslaw.jotwell.com/balancing-act-the-federal-judiciary-as-both-arbiter-and-participant-constitutional-structure/.

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

Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404 (2023).

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.

Cite as: Steve Vladeck, An End Without Argument: The New Judicial Politics of Legal History, JOTWELL (December 1, 2023) (reviewing Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404 (2023)), https://courtslaw.jotwell.com/an-end-without-argument-the-new-judicial-politics-of-legal-history/.

How is the Discovery Water Here?

Richard Marcus, The Magnetic Pull of American Discovery: Second Thoughts About American Exceptionalism, in Proceso Civile e Costituzione (2023) available at SSRN (Oct. 4, 2023).

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.

Cite as: Sergio J. Campos, How is the Discovery Water Here?, JOTWELL (November 20, 2023) (reviewing Richard Marcus, The Magnetic Pull of American Discovery: Second Thoughts About American Exceptionalism, in Proceso Civile e Costituzione (2023) available at SSRN (Oct. 4, 2023)), https://courtslaw.jotwell.com/how-is-the-discovery-water-here/.

Breaching the Contract Paradigm

Howard M. Erichson & Ethan J. Leib, Class Action Settlements as Contracts?, 102 N.C. L. Rev. __ (forthcoming 2023), available on SSRN.

For the traditional civil proceduralist and legal ethicist, much of class action law is fitting a square peg in a round hole. Few of the principles or rules developed in the context of bilateral relationships apply neatly in representative litigation. For example, rules of conduct are ill-suited to the sui generis relationship class attorneys enjoy with the lead plaintiff and with the class. Cy près remedies common in class settlements provide for relief – payment to a non-party – that the underlying substantive law does not authorize. The presence of absent class members complicates the doctrine of standing, while the opt-out system disrupts expectations of basic due process rights. Add to this list the class action settlement. Its unique nature has to date been undertheorized and underexplored, although the features that distinguish class actions from their two-party counterparts are more pronounced at settlement: a deal binds absent class members who had no power to instruct counsel and no say in the deal’s terms. In these circumstances, is a settlement agreement a “contract” and should disputes arising from the settlement be resolved by resort to strict contract law principles?

Howard Erichson and Ethan Leib challenge the prevailing paradigm of the class action settlement as a contract between parties. Their thesis is that a class settlement agreement is a particular sort of contract and a unique kind of court judgment; it requires its own interpretive framework, one that borrows from the law of contracts and the law of judgments. Their distinctive approach respects the role of the certifying court as protector of class members’ interests in a way that blind adherence to settlement-as-contract ignores.

Erichson and Leib document the many ways in which courts have treated settlement agreements as simple contracts and thus have focused on giving effect to the parties’ intent when adjudicating disputes about the interpretation of such agreements. Class action procedural law encourages such an approach by, for example, prohibiting judges from altering the terms of the proposed settlement. The authors document numerous examples of courts invoking contract law to analyze disputes concerning the class settlement.

They then explain the many ways in which class settlement agreements differ from other contracts and why those differences matter. Class members are not parties to the litigation, let alone to the settlement agreement. What binds them to the deal is the certification order and the order approving the settlement, not that they negotiated or consented to it. A class member and class counsel do not enjoy a classic principal-agent relationship. Moreover, the parties are not free to settle the action on any terms they deem acceptable: by law, the court must approve the agreement after assessing its fairness to absent class members. The settlement agreement binds class members because a court entered a judgment giving effect to its terms. The rationale for court oversight is key: “Courts review class settlements because negotiated resolutions of class actions in fact present serious risks that class members’ interests will be disserved by those who purport to represent them in negotiations.” The inherent conflicts of interest alone should be sufficient to justify departure from the usual contract paradigm.

Part III makes the case for a distinct interpretive framework for disputes that arise concerning the interpretation or enforcement of settlement agreements. Erichson and Leib rightly point out that even within contract law, some contracts demand special rules. For example, contra proferentum is a first principle in interpreting insurance contracts, while consumer contracts invite a more flexible parol evidence rule. Like contracts of adhesion, class settlement agreements invite the court to adopt an approach that differs from that which applies to contracts based on mutual assent.

The authors’ framework consists of four questions that courts should ask when determining the principles to apply to a dispute:

  1. In the pending dispute, who is to be bound by the terms of the class settlement? If the dispute involves an attempt to enforce the contract as against someone who participated in the drafting of the agreement – such as the defendant – then general “intent-of-the-parties” contract principles may reasonably apply. Conversely, binding a class member who neither negotiated the agreement nor appointed an agent to protect her interests calls for different principles. Here, contra proferentum has more relevance.
  2. When was the opt-out right exercised? The timing of the opt-out is relevant to determining the nature of any assent to the terms of the settlement. If the opt-out process occurs when the terms of the settlement are known, for example, and when there was good notice and a substantial claim in issue, declining to opt out may amount to tacit assent on the part of a class member.
  3. Does the dispute involve a matter on which the interests of the settlement drafters diverged from the interests of the class members? Where the dispute involves an interpretation of a term that presents a divergence of interests, contra proferentum and other principles protecting vulnerable parties should apply.
  4. Is the judge who certified the class and approved the settlement also the judge who is evaluating the interpretive dispute? “Some deference should be given to the judge who is best positioned to speak to the meaning of that settlement and thus the meaning of the judgment that made the settlement binding.”

These questions will orient judges away from the private contract model toward the protective role mandated by the law of class actions. Courts are required to protect absent class members from unfair settlements, both at the time of settlement approval and at the time of implementation. Thus, faced with a dispute about the terms of an agreement, judges should think not only of what class counsel and defendants intended, but what a reasonable class member might have agreed to.

Like so much of class action law and procedure, class action settlement agreements belie the neat application of principles derived from a different paradigm. Class Actions Settlements as Contracts? convincingly explores why contract law principles designed to determine and give effect to the intent of the parties do not apply squarely to the class action context. More importantly, the authors provide an interpretive framework that respects the unique place of class members in the litigation and the court’s unique role in protecting their interests.

Cite as: Jasminka Kalajdzic, Breaching the Contract Paradigm, JOTWELL (November 3, 2023) (reviewing Howard M. Erichson & Ethan J. Leib, Class Action Settlements as Contracts?, 102 N.C. L. Rev. __ (forthcoming 2023), available on SSRN), https://courtslaw.jotwell.com/breaching-the-contract-paradigm/.

Questioning Selection, The Supreme Court, and Legitimacy

Benjamin B. Johnson, The Origins of Supreme Court Question Selection, 122 Colum. L. Rev. 793 (2022).

Much has been written (and reviewed) about the modern Supreme Court’s legitimacy and about reforming or restructuring the Court to pull it from this crisis.

Benjamin Johnson identifies a century-old power-grab as an overlooked cause for this crisis: Congress made the Court’s appellate jurisdiction almost entirely by discretionary writ of certiorari in 1925 and the Court within less than a decade arrogated power to use certiorari to select and decide discrete legal questions rather than to hear and resolve entire cases. The resulting system is not inherent in the “judicial power” granted in Article III, not authorized by statutory text, and not intended by Congress; in fact, it contradicts the Justices’ representations in lobbying Congress to eliminate mandatory jurisdiction. By asking and answering specific constitutional questions of its unilateral choosing, the Court “no longer decides cases,” in turn undermining its role as an appellate court and the logical and policy bases for its role as (final?) constitutional arbiter.

The paper presents a comprehensive history of the Court’s appellate jurisdiction, identifying four key moments of evolution: the Judiciary Act of 1789, under which all jurisdiction was mandatory; the Evarts Act in 1891, creating the intermediate courts of appeals; the Judges’ Bill in 1925, pushed by Chief Justice Taft and making discretionary writ of certiorari the near-exclusive basis for appellate jurisdiction; and the Supreme Court Case Selections Act of 1988, which eliminated the last vestiges of mandatory jurisdiction over cases from courts of appeals and state courts. That history and the resulting jurisdictional statutes reveal several things. Congress granted the Court jurisdiction to review, by certiorari, “cases” from courts of appeals and “final judgments or decrees” from state and territorial courts. Certiorari originated as a limited alternative path from the courts of appeals to SCOTUS, but the Court used the tool to take and decide the entire case. In urging passage of the Judges’ Bill, Taft and other Justices represented to Congress that the move to all-certiorari jurisdiction would not change the Court’s practice of taking entire cases. And the Court abandoned that view by the end of 1920s, embracing a power to limit certiorari review to specific questions of the Court’s choosing. Congress did authorize the Court to address “any question of law” when a federal court of appeals certified a question. But this express textual grant to decide discrete issues demonstrates that Congress expected the Court to use certiorari to hear entire cases unless someone outside the Court (the court of appeals) presented a question in a distinct process.

The resulting scheme—unilateral discretion to set its agenda by choosing and deciding singular questions rather than cases—means “the Court takes questions, not cases.” It tgys acts in a way that Congress did not expect or authorize and ceases to function as an appellate body. This produces two main adverse effects.

First, discretionary question selection may be inconsistent with a judicial power that extends to all cases or controversies. Of course courts must decide subsidiary questions to resolve cases. But two things make current practice unique. Justices decide questions independent of the case; the lower court resolves the case after SCOTUS decides the chosen question. And Justices have seized unilateral power to select the questions they decide, rather than answering questions presented to them or authorized by Congress or lower courts. Worse, the Court has denied administrative agencies and lower courts similar discretion to select and decide discrete questions; it reads other jurisdictional statutes narrowly to require these bodies to hear all issues within a case.

Second, this practice undermines the logic of judicial review. Under the classic justification, the Court must decide cases, it does decide cases, and deciding cases requires constitutional judicial review. If the Court does not decide cases, however, the second prong of that justification vanishes. And if the Court selects which constitutional questions to decide and when, it does not act out of any formal or legal obligation.

Although Johnson situates this paper within the Court-reform literature, he does not offer reforms or solutions. This is a work of deep history. But it sheds light on a different facet and cause of the legitimacy crisis—one of the Court’s own making.

Cite as: Howard M. Wasserman, Questioning Selection, The Supreme Court, and Legitimacy, JOTWELL (October 9, 2023) (reviewing Benjamin B. Johnson, The Origins of Supreme Court Question Selection, 122 Colum. L. Rev. 793 (2022)), https://courtslaw.jotwell.com/questioning-selection-the-supreme-court-and-legitimacy/.

The Future of Intersectionality in Employment Law

Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, __ Employee Rts. & Emp. Pol. J. __ (forthcoming), available at Geo. L. Fac. Publ'n and Other Works 2407(2021).

Recent social justice movements—such as #MeToo and Black Lives Matter—have pushed mainstream American society to reckon with the ubiquity and persistence of systemic sex-based and racial inequities. At the heart of the firestorm are Black women, whose identity at the intersection of sex and race often exposes them to pervasive, but also unique employment discrimination and sexual harassment. Jamillah Bowman Williams’s Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy stands out as an exceptional examination of the how courts deal with such “intersectional” claims.

“Intersectionality,” famously coined by Professor Kimberlé Crenshaw over three decades ago, recognizes that Black women may experience discrimination distinct from how white women or Black men experience discrimination. This concept is not new—the Fifth Circuit recognized it as early as 1980. The Equal Employment Opportunity Commission (EEOC)—the agency tasked with enforcement of the Title VII of the Civil Rights Act of 1964—explicitly recognizes Title VII’s coverage of intersectional claims. Black women are overrepresented among low-income, vulnerable workers, and subjected to pernicious stereotypes rooted in chattel slavery.

This “double jeopardy” requires courts to move beyond forcing Black women to parse out their identities and pigeonhole their discriminatory experiences into conduct based solely on “race” or “sex.” Williams urges judges and lawmakers to go deeper, to entertain a more complex and nuanced understanding of the law, and to align Black women’s lived experiences with Title VII’s broad remedial purpose by recognizing intersectional claims. Not only would Black women fare better at summary judgment and in case outcome (whose failure rate is significantly higher), but the law would be inclusive of their reality. For example, in the context of work harassment, a plaintiff may experience a hostile work environment based on the combination of their sex and their race but fail to prove either one independently. Title VII requires that workplace incidents be sufficiently severe or pervasive to constitute harassment, but if courts artificially disaggregate such incidents into “race” or “sex,” they dilute, potentially fatally, the force of the discriminatory conduct. Appreciating the totality of the misconduct and the overlapping nature of the harassment would more faithfully protect everyone in the workplace.

Williams’s article breaks new ground by identifying and critiquing the primary approaches used by the federal appellate courts when analyzing intersectional claims.

Some circuits (Fourth and Eighth) insist that Black women dissect their experiences and identities, ascribing either “sex” or “race” as the basis for discrimination. These appellate courts read the text and purpose of Title VII in a cramped way that disallows claims combining “sex” and “race.” They worry that intersectional claims will afford Black women a “super-remedy” and “special” treatment unavailable to fellow workers. This narrow interpretation ironically deprives those multiply-marginalized of Title VII’s protection, contrary to the statute’s broad remedial purpose and spirit.

Other circuits (Second, Third, and Tenth) analyze intersectional claims under a “sex-plus” framework. A plaintiff who suffers discrimination on the basis of sex plus another trait (not protected under Title VII) would be shielded by the statute. The classic example is Phillips v. Martin Marietta Corp., allowing women with preschool-aged children to bring a sex-discrimination hiring case against the employer even though the company hired other women; this constituted sex discrimination because, unlike women, men with preschool-aged children were hired. The statute covered the combination of two traits (sex plus having a preschool-aged child). Although only a subset of women bore the brunt of the employer’s exclusion, they could challenge discrimination at the intersection of sex and another factor. Courts have expanded the “sex-plus” rationale to protect older women from sex-plus-age discrimination, combining Title VII and a plus trait from another statute, the Age Discrimination in Employment Act (ADEA). Given this flexibility, Williams persuasively argues that a court should easily be able to recognize an intersectional sex-plus-race claim—the combination of two traits already protected under Title VII.

Williams’s endorsement of the sex-plus approach, however, is tempered by its limitations. She faults the approach for its overdependence on comparators; elevation over a race-plus framework; and preferencing sex over other traits as the basis for statutory protection. Most notably, the sex-plus framework requires Black women to dissect their identities and lead with sex as the primary trait, with race secondary in the analysis. Centralizing sex artificially fractures the plaintiff’s experience and unnecessarily subordinates the racial dimension.

A third and more preferable method from the circuit courts (Fifth and Eleventh) recognizes the unique experience of race and sex discrimination combined by identifying Black women as a protected class. Williams praises this as a step forward but worries that these courts still subordinate the plaintiff’s race claim.

Two circuits (Sixth and Ninth) adopt the best approach—a totality or aggregate one. The court does not force the plaintiff to sort her experiences into boxes labeled “race,” “sex,” “age,” “religion,” “disability,” or any other protected trait. Instead, the court analyzes her experience as a whole to discern illegal discrimination.

Finally, two circuits (First and D.C.) have been inconsistent and undecided when addressing intersectional claims. The U.S. District Court for the District of Columbia expressed concern over plaintiffs turning employment discrimination claims into a “many-headed hydra” comprised of countless permutations based on the various groups to which they belong.

After exploring the current state of the union on the interpretation of intersectional claims, Williams makes another ground-breakin contribution. Looking ahead, she examines a number of significant trends that foreshadow the future of intersectionality in employment law. Most notably, Williams contends that Bostock v. Clayton County supports intersectional claims. Authored by Justice Neil Gorsuch and joined by Chief Justice Roberts, Bostock joins conservative and liberal justices in a promising majority opinion. Williams argues that Bostock helps Black women in three ways: 1) inextricably linking discrimination on the basis of sexual orientation and transgender status to sex; 2) reinforcing that discrimination “because of sex” includes mixed motivations; and 3) noting that individuals may be subject to discrimination even if their whole group is not. Bostock gives space for intersectional claims, discrimination based on multiple factors, and discrimination against a subset of a protected class. Indeed, the Tenth Circuit relied on Bostock in recognizing intersectional claims by Black women through the sex-plus framework.

Williams also notes how state legislators, while leading the way in enacting protections against sexual harassment, must do the same for harassment based on race and other central identities. Indeed, the law should not stop there, but should take a more unified approach that does not silo experiences into claims of discrimination, harassment, or retaliation.

Finally, Williams promotes the development of a “reasonable Black woman” standard for sexual harassment claims brought by Black women. This standard more closely mirrors plaintiffs’ unique experiences and perspectives, providing important context, nuance, and understanding. Such an approach would more fully advance the EEOC’s victim-centric guidance.

Williams ends her article with prescriptions based on various federal and state legislative reforms, pushing Congress, the EEOC, and the courts to more fully embrace the experience of Black women’s lives through the recognition of intersectional claims. She challenges judges, lawyers, and law students to see Black women not as the sum of our fractured identities, but to see us as whole persons. And in doing so to see our humanity.

Cite as: Suzette M. Malveaux, The Future of Intersectionality in Employment Law, JOTWELL (September 11, 2023) (reviewing Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, __ Employee Rts. & Emp. Pol. J. __ (forthcoming), available at Geo. L. Fac. Publ'n and Other Works 2407(2021)), https://courtslaw.jotwell.com/the-future-of-intersectionality-in-employment-law/.