Recognizing the Value of Failure in Civil Litigation

Alexander A. Reinert, Screening Out Innovation: The Merits of Meritless Litigation, 89 Ind. L. J. __ (forthcoming 2014) available at SSRN.

Throughout life, we are told that we should learn from our mistakes.  Alex Reinert, in Screening Out Innovation:  The Merits of Meritless Litigation, forces us to consider why civil litigation shouldn’t have to do the same.  Reinert elegantly defines meritless–as distinct from frivolous–litigation, argues why the civil justice system should value it, and argues that Congress, the Court, and federal rulemakers should change the way they think about substantive and procedural change.

In civil litigation, the question of how to manage the tension between efficiency and justice has been resolved by resort to an argument that frivolous claims should be screened out, and screened out early.  That proposition appears uncontroversial on its face.  Yet, changes like the Twiqbal pleading standard and the Private Securities Litigation Reform Act (PSLRA) are criticized for taking this proposition too far.  The argument is that these efforts to achieve efficiency screen out meritorious cases along with the frivolous.  Those in favor of these changes respond by arguing that it is worth sacrificing a few meritorious cases because the overall system benefits when frivolous cases are eliminated.  Proponents argue this leaves more room for meritorious cases to receive careful attention.  What gets left out of this debate, at least explicitly, is the role of meritless cases in the system and how those meritless cases should be valued when considering substantive and procedural reform.

Reinert takes this question on.  First, he unpacks the difference between a frivolous claim and a meritless one. Frivolous cases are those in which a judge can determine that “the plaintiff has no arguable basis to believe that she may establish the defendant’s liability on the basis of any of the legal theories she alleges.”  In contrast, meritless cases are those in which the judge “determines, after adversarial briefing or discovery, that a plaintiff’s theory of relief is insufficient or that a reasonable jury could not find facts that would allow a plaintiff to recover.”  In other words, frivolous cases are generally losers from the outset.  Meritless cases might be losers, but the only way to determine that status is to engage in some amount of adversarial practice.

Once Reinert defines these terms, he surveys a number of instances where the Court and Congress have adopted procedural and substantive restrictions in the name of screening out frivolous cases.  These changes are made without appreciating that frivolous and meritless cases are distinct.  For example, the inquiry for qualified immunity changed from a subjective to an objective reasonableness standard, asking whether the claim shows a violation of “clearly established” law.  The justification for this change was that the old standard was ineffective in filtering out both frivolous and meritless claims against government officials.  Reinert argues that these changes are flawed because frivolous and meritless cases are, in fact, not equal.

Meritless claims, Reinert argues, are actually good for the system.  For example, when a plaintiff loses a case, future plaintiffs and the system itself learn something from that loss.  Whether it is how to differentiate between existing precedents or the simple fact that a particular legal claim is a loser, the loss teaches us something.  Another benefit of meritless litigation is that a loss will lead to a positive change in the law. Lilly Ledbetter’s case is an example.  She lost her lawsuit, but Congress remedied that loss for future litigants by softening the statute of limitations for bringing discrimination claims on the basis of pay disparities.  If her meritless claim hadn’t been adjudicated, Congress would not have acted.  In addition, even if meritless cases do not lead to formal legal change, those cases might have broader social consequences as the public weighs in.  For example, lawsuits challenging the Obama Administration’s surveillance activities have helped shape the public debate and have even led the Administration to affirmatively change its policies and practices without court order.  Meritless cases also provide litigants with a sense that they have been heard, even if they lose.  Finally, those cases signal to potential litigants what their chances might be, guiding their decision to file a claim, arbitrate, or settle.  Reinert’s ultimate point is that even when these meritless cases fail, they teach us something, and that something improves the system.

Yet, because Congress and the Court conflate meritless and frivolous claims, both are screened out of the system as if they are the same.  As Reinert argues, substantive and procedural restrictions have increased, which means these claims are screened out even earlier in the litigation process.  Losing meritless claims so early means that their value is not realized at all.  For example, lawyers might resist taking cases unless they are certain the case can clear the “clearly established” hurdle for qualified immunity.  The result is that cases that might have defined the outer bounds of clearly established constitutional violations will not be pursued.  And even if they are, because courts can skip the clearly established step in their analysis, the law regarding what qualifies as a violation is paralyzed.  Reinert’s point is that substantive and procedural reforms, like the standard and timing of qualified immunity, should be made with an appreciation of what meritless litigation contributes to the civil justice system.  If meritless litigation were considered, the argument goes, different and better changes might be made.

Reinert’s article provides numerous examples of how meritless and frivolous claims are systemically different.  While not exhaustive, his discussion is broad, stretching across all manner of procedural and substantive provisions.  My only minor qualm with the article is that Reinert does not explicitly address federal civil rulemaking.  That is an area rife with discussions that, unfortunately, conflate meritlessness and frivolousness and undervalue meritless claims.  The latest round of proposed amendments to the federal discovery rules are a ready example how an under-appreciation of meritless claims can result in imperfect procedural change.  These amendments will make it more difficult for parties to request discovery necessary to develop their claims by requiring, among other things, a demonstration of proportionality.  However, Reinert’s larger and important point does not suffer at all for not discussing federal rulemaking; it is only another example of why his argument makes sense.

Reinert deftly demonstrates how meritless cases should influence substantive and procedural reform.  In a debate that is dominated by concerns about efficiency, he reminds us that the “justice” side of the equation is often understated and underdeveloped.  His work is a critical contribution.  Indeed, his article is such a success because he so convincingly argues that there is great value in failure.

 
 

Jackson

•  Neil H. Andrews, Money and Other Fundamentals: English Perspectives on Court Proceedings, Meditation, and Arbitration, U Cam. Faculty of Law Research Paper No. 38/2013 (2013) available at SSRN.
•  Stuart Sime, A Practical Approach to Civil Procedure (16th ed. 2013).
•  Stuart Sime & Derek French, Blackstone’s Guide To The Civil Justice Reforms 2013 (2013).

The banes of every civil-justice system are delay and expense.  The two maladies are often run together in a single phrase as if they were one disease, but they are distinct problems whose antidotes sometimes work at cross-purposes.  One solution to delay, for instance, is to impose early, firm deadlines during litigation, but that can simply induce parties to “lawyer up” and spend more money in the rush to meet truncated deadlines.  Conversely, keeping the cost of litigation down may induce more people to sue, which will drive up the length of time to resolution.

In England, where I taught this past Fall, the delay-and-cost two-step has played out over fifteen years and two sets of procedural reforms.  The first, and better known, effort occurred in 1998, when the Wolff reforms (named after Lord Chief Justice Woolf, principal author of the report Access to Justice) led to the creation of the Civil Procedure Rules.  The principal innovation of the Woolf reforms was case management, an idea that had been growing in popularity on the American side of the Atlantic since the 1970s.  But it also included a number of other innovations—such as pre-action protocols in which parties in some cases exchanged information before suit, greater resort to ADR, and a rule (“Part 36”) that operates akin to but more broadly than Federal Rule of Civil Procedure 68—that were designed to both reduce delay and lower the cost of litigation.

After a decade’s worth of experience with this new judicial approach, the general view was that the Woolf reforms did a better job reducing delay than lowering cost.  Hence, in his massive Review of Civil Litigation Costs, Lord Justice Jackson proposed another series of reforms targeted specifically at the management of litigation costs.  These reforms, often called the Jackson reforms (or simply “Jackson”), came into effect in April 2013.  These three works attempt, with increasing levels of detail, to examine the Jackson regime.  Professor Andrews’ overview locates the reforms within the context of other movements in British procedure (such as mediation and arbitration).  Professor Sime’s well-known hornbook on civil procedure contains new chapters describing the effect of Jackson, and his book with Mr. French focuses exclusively on these reforms.

Each of the authors is a leading scholar of the British legal system.  The value of these works lies not in their novel analysis, but in their clear and cogent descriptions of a set of reforms that should spark the American imagination.  Although it is not possible to provide a full rendition of Jackson in the short space I have here, some of the highlights are worth mentioning.1

Costs Budgeting.  Early on in certain cases (in particular, in many multi-track cases, which involve stakes of more than £25,000), each side must prepare a costs budget detailing the expenses that they expect to incur in the litigation.  The budget, which is to be prepared on a pre-formatted spreadsheet, is shared with the client, the court, and the opponent, and limits are imposed on the amounts that barristers can charge for certain services (including preparation of the cost-budgeting worksheet).  In one sense, lawyers are not bound by the budget; they can work more hours or charge their clients more than the budget provides.  But the budget provides the presumptive amount of costs that can be awarded to the client in the event that the client wins—recalling that the United Kingdom follows the English (or “loser-pays”) rule.  If parties do not agree to each other’s costs budgets, the court can enter an order on the appropriate costs.  Moreover, the court can reduce the parties’ budgets when they seem disproportionate to the amount at stake.  For instance, if a case has a value of £100,000, the budgets for each side may be £60,000 (or £120,000 in total).  It would not be socially beneficial for this case to go forward on this basis, but both parties might feel justified in expending this amount because of the belief that they will recover their costs when they win.  Indeed, a party with a strong claim or defense may even have an incentive to spend more than £100,000 (a result that would not occur under the American rule, under which each party bears its own costs).  The court now has authority to require the parties to trim their costs budgets to ensure that the global amount expended is proportionate to the stakes of the litigation.  Parties may spend more, but doing so will likely be on their own dime—even if they win on the merits.  The budgeting rules can be found in Part 3 of the Civil Procedure Rules (Rules 3.12–.17).

The bench seems determined to enforce this new power.  In a decision that is presently sending seismic waves through the bar, the Court of Appeals held that the plaintiff would be entitled to no costs when his solicitors were late in submitting a costs budget.2  The untimely budget had called for an expenditure of more than £506,000—meaning that, should the plaintiff prevail, his solicitors may be looking at a £506,000 professional-malpractice claim.

Qualified One-Way Fee Shifting.  Somewhat reluctantly, Britain has begun to permit contingency-fee agreements.  One form of contingency fee (the “damages-based agreement”) is familiar to Americans, although the caps on fees for a successful recovery (for instance, 25% for a tort claim) are often lower.  Another form (the “conditional-fee agreement”) is uniquely British: the barrister charges the traditional hourly rate (payable only in the event of recovery), but is then entitled to a “success fee” to compensate for the risk of losing the case.  One of the Jackson reforms is to limit fee shifting by defendants in personal-injury cases, in which contingency-fee agreements are most common.  Thus, contrary to the usual English rule, a successful defendant cannot generally receive its costs from a losing plaintiff.  Qualified one-way fee shifting still makes a plaintiff liable for her own lawyer’s costs, although here the rise of the contingency fee limits that prospect.  These provisions appear in Rules 44.14–.16.

Proportionality.  Already ensconced in the Civil Procedure Rules, the notion that costs must be proportionate to the nature of the case—enforceable through the principle that only proportionate costs are recoverable—was reinforced throughout.  For instance, the revision to Rule 1.1(1) (the equivalent of Federal Rule 1) inserted four new words at the end: “These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.”  Proportionality also received greater emphasis in the drafting of a revised Part 44 (especially Rules 44.2–.12), which deals with the court’s general power to award costs.  With the exception of qualified one-way fee shifting, the usual loser-pay rule prevails: the losing party must pay the fees of the prevailing party for the costs that the other party has budgeted.  This “standard-basis” fee shifting is, however, limited by the “indemnity principle,” which holds that a party should not be responsible for more in costs than the other party would have been required to pay her own lawyer.  For example, if a plaintiff has entered into a damages-based agreement to receive a 25% contingency fee, the defendant is liable only for fees in that amount.

The attribution is unclear (it was either George Bernard Shaw or Oscar Wilde, or perhaps it was Winston Churchill), but it has been said that England and the United States are two countries separated by a common language.  The same may be said of law: We are two countries divided by our common legal heritage.  Backed by significant empirical data, the Jackson reforms are a thoroughly thought-out package of changes designed to bring down the cost of British litigation.  It is therefore tempting to borrow pieces of the reforms—costs budgets seems an especially attractive notion—and consider their adoption in the U.S.

But that impulse presents problems of translation.  Many of the Jackson reforms, and the powers that British judges have to control costs, are keyed to the reality that the United Kingdom, like much of the world, employs a loser-pays approach to fees.  This approach can create some perverse incentives: parties with strong cases and financially solvent opponents have little reason to control their own spending on litigation.  In a legal culture in which fees to the winning party are the norm, the power to withhold those fees might be a significant inducement to the parties to control costs.  But withholding those costs (in other words, making each side bear its own costs of litigation) merely makes the British system run more along the lines of the American rule—a tendency reinforced by qualified one-way fee shifting.  Moving in this direction may lead the parties in a U.K. lawsuit to make more rational litigation decisions in some respects.  For instance, if costs budgeting works as expected, rational actors have less capacity to expend £120,000 on a £100,000 claim.  But costs budgeting does not prevent all socially undesirable litigation behavior.  For instance, if a court approves budgets of £40,000 per side for this £100,000 claim, a plaintiff with a very strong claim might nonetheless make an economically rational decision to expend £120,000 on litigation expenses: she will receive £140,000 in total (£100,000 on the judgment and £40,000 in costs recovery) but spend only £120,000, leaving her £20,000 to the good.

The American rule does a better job ensuring that parties do not spend more on a case than the benefits that they expect to recover.  But, like the traditional English rule, it does not always ensure that the costs of both parties are proportionate to the needs of the case; for instance, under the American rule, both parties might have an incentive to expend a socially wasteful $60,000 on a $100,000 claim.  The promise of Jackson—if parties truly limit their spending to their costs budgets and if judges become good at assessing expected recoveries—is to push forward only those cases that are economically viable (considering the costs on all sides).  But the carrots and sticks that Jackson uses to realize this goal work best within the confines of the fee and cost structure of the English system.  As significant a reform as it appears to be in English practice, Jackson provides few immediately transferable ideas for controlling costs in the American civil-justice system.



  1. I am enormously grateful to Geoffrey Bennett, Susan Blake, and Stuart Sime for conversations that have helped to shape this discussion.  Any errors in translating English procedure for an American audience are mine. []
  2. See Mitchell v News Group Newspapers Ltd., [2013] EWCA Civ. 1537, 2013 WL 6148230 (Nov. 27, 2013). []
 
 

The Erie-ness of the Rules

In Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the Supreme Court famously ruled that a federal court cannot displace state common law with its own common law. Justice Brandeis’s majority opinion suggested that the Constitution compelled this result, and ever since, the decision has been called everything from a “brooding omnipresence” to an “irrepressible myth.” If Erie means anything (and, trust me, there is a lot of disagreement about whether it means anything at all), it makes clear that the federal government’s powers are limited vis-à-vis the states, and these limitations extend to the judiciary’s power to make law through precedent. To borrow Justice Brandeis’s words, “there is no federal general common law.” But translating this idea into doctrine has been a difficult task.

Applying Erie becomes even more complicated once you throw in the Federal Rules of Civil Procedure (which, ironically, became effective the same year as Erie). The Rules are like a legal mythical beast. The Rules are not statutes, even though they are exercises of Congress’s power to regulate the practices and procedures of Article III inferior courts. With rare exceptions, Congress does not exercise this power directly, but rather has delegated it to the Supreme Court through the Rules Enabling Act. The Court, in turn, has delegated the primary drafting of the Rules to an ad hoc advisory committee. Finally, under the Rules Enabling Act, the Rules cannot “abridge, enlarge or modify a substantive right,” which reflects a concern by Congress that the Court will abuse this delegated power to make “substantive” law without the authorization of Congress. Consequently, the Rules introduce a separation of powers dimension on top of the federalism concerns of Erie.

Enter Margaret Thomas’s masterful article, Constraining the Federal Rules of Civil Procedure Through the Federalism Canons of Statutory Interpretation. Thomas focuses on the limitation that the Rules must not “abridge, enlarge, or modify a substantive right,” which has been difficult to apply in practice. This is especially true in cases brought under a federal court’s diversity jurisdiction, where a federal court is required under the Rules of Decision Act (and, according to Erie, the Constitution) to apply state law when there is no federal law on point. On the one hand, if a Federal Rule differs from the procedure that would apply in state court, then a federal court should apply the Rule because it is arguably a federal “law” on point. On the other hand, applying the Rule instead of the state procedure most likely would have an effect on the outcome (why else would the parties care?), and thus would arguably “modify” the substantive rights at issue in the case.

So is a Rule always valid or never valid? The Court has historically chosen the former. Recently, in Shady Grove, the plurality (and arguably the dissent) concluded that a Rule is valid if it “really regulates procedure,” ignoring the “abridge, enlarge, or modify” limitation altogether.

For Thomas, this will not do. Like many scholars, Thomas argues that ignoring the “abridge, enlarge, or modify” limitation allows the Rules to preempt state procedures that are designed to protect or limit substantive rights. As she puts it, ignoring the limitation “risks undermining important areas of state policymaking that Congress never intended to control through federal law.” (P. 192 & n.11). But Thomas does not argue that “the Federal Rules should never apply in diversity cases.” (P. 25).

Instead, she proposes a simple and very elegant solution to figuring out when a Rule would “abridge, enlarge or modify a substantive right.” Thomas looks to the canons of construction used by the federal courts to determine whether a federal statute preempts state law. These canons include (1) the presumption against the preemption of state law and (2) the “clear manifestation of intent” rule, which only permits preemption of states exercising their “historic police powers” when it is unambiguously shown that a federal statute is meant to preempt state law. As Thomas points out, these canons protect federalism because they interpret congressional silence as creating space for states to exercise their police powers. Moreover, by ensuring that Congress, rather than the courts, exercises legislative powers, the canons protect federalism because, unlike the courts, Congress “provides for the representation of state interests in the legislative process.” (P. 237). Thus, Thomas cleverly reads into the “abridge, enlarge or modify” limitation of the Rules Enabling Act an implicit concern with federalism to go along with the Act’s concern with separation of powers.

This is all somewhat abstract, but Thomas’s insight reduces the “abridge, enlarge or modify” limitation to a simple standard. The key inquiry for Thomas is whether “the law is in an area where Congress has declined to exercise federal power and the state law at issue is part of the manner in which the state governs the area.” (P. 251).

A simple example shows how Thomas’s proposal can provide much needed guidance. Suppose, as in Shady Grove, a state has a blanket prohibition against class actions where the damages are defined by statute. Should the prohibition apply in a diversity case, or should Rule 23, which governs federal class actions, apply? This issue divided the Court, but Thomas points out that the federalism canons provide a much easier way to address the issue. In Thomas’s view, whether the state prohibition applies depends on what the claims are meant to address. In Shady Grove, the statutory damages were meant to ensure that insurance companies make timely payment of their proceeds. Because insurance regulation is a traditional state concern, the state prohibition should apply. As Thomas puts it in discussing Shady Grove, “[l]imiting the magnitude of statutory late-payment penalties reflects a decision about New York’s regulation of its own insurance industry.” (P. 258). Here Thomas’s standard provides a compelling answer to the question of whether the “abridge, enlarge or modify” limitation has been breached. Moreover, it does so without sifting through state legislative history or giving significance to whether the prohibition was part of the state’s procedural code or part of its “substantive” statutes.

I have proposed an approach to Erie that differs somewhat from Thomas’s proposal, although I am not sure the differences matter. More importantly, Thomas’s proposal has the advantage of using canons of construction that have been used “since the time of the Framing . . . to identify the internal power of states to regulate matters within their own borders to promote the general welfare.” (P. 255).  Thus, like another article that I liked (lots), Thomas’s article goes beyond criticizing or defending a doctrine to address how to make the doctrine work. For that reason Thomas’s excellent article is a major contribution to the already extensive scholarship on Erie.

 
 

Front-End Duties to the Class

Nick Landsman-Roos, Front-End Fiduciaries: Precertification Duties and Class Conflict, 65 Stan. L. Rev. 817 (2013).

As some may remember, Dallas attorney Fred Baron created an uproar in the legal community in 1993 when he mounted a full-bore attack against the infamous Georgine nationwide asbestos settlement class. In 1997, Laurence Tribe — arguing an array of substantive and procedural objections — ultimately convinced the Supreme Court in Amchem v. Windsor to disapprove that settlement.  Fred Baron, then, largely was responsible for helping to establish that settlement classes are legitimate, but that they must include structural assurances of due process fairness to absent class members.

Less well-known and long-forgotten in Amchem’s wake, Baron also lobbed an array of ethical objections at the settling parties, although the Supreme Court ultimately deflected these challenges. The Georgine settling parties had simultaneously presented the federal district court with a class complaint and a settlement. Baron raised the question of the duties that plaintiffs’ attorneys owed to class members in the absence of a formal class certification at the outset of the litigation. On this, he held two somewhat discordant views. On one hand, he opined that absent a formal class certification at the front-end of class litigation, no class was created and therefore the plaintiffs’ attorneys could not negotiate a settlement on behalf of the class. There was no attorney-client relationship until the class came into existence. Thus, he argued, the entire Georgine settlement was illegitimate and the class could not be bound by a back-end class certification. On the other hand, he argued that an attorney-client relationship existed throughout and class counsel owed fiduciary duties to the class members, even without a filed class complaint. In this regard, class counsel had violated their fiduciary duties to the Georgine class.

It is somewhat surprising that nearly  twenty years after Fred Baron first called attention to the issue in Georgine, the problem of attorney fiduciary duties during pre-certification class proceedings remains largely unresolved. This problem is extremely important given the prevalence of settlement classes in our post-Amchem era. In an excellent piece in the Stanford Law Review, Nick Landsman-Roos has stepped into this doctrinal breach. Front-End Fiduciaries: Precertification Duties and Conflict traverses the landscape of pre-certification professional responsibilities as they intersect with class action jurisprudence.

Landsman-Roos first explicates the problem of class counsel’s pre-certification duties, noting that courts have largely ignored this issue because judges evaluate the adequacy of class counsel at the back end, during the settlement fairness hearing. Such back-end evaluations typically are ex post facto, focusing on what the attorneys already have done, and not on what they may do. In addition, back-end inquiries focus on the requirements of Rule 23 adequacy, rather than on broader ethical obligations. Thus, Landsman-Roos suggests that the problem of pre-certification duties has been given short-shrift because no Federal Rules framework exists for addressing pre-certification attorney conduct. Moreover, pre-certification duties have special salience for addressing conflicts of interest at the outset of class litigation, rather than at the back end of a settlement.

Courts have been confounded, Landsman-Roos notes, by questions relating to the scope of fiduciary duties, professional ethics, and conflicts at the outset of litigation.  Consequently, courts have applied varying standards for dealing with such disputes. But the problem of pre-certification conflicts and fiduciary obligations remains largely undertheorized, and Landsman-Roos’s project is to identify a framework to resolve loyalty problems at the front end of class action litigation.

Landsman-Roos focuses initially on the crucial question of how to define the client in class litigation. Surveying the academic debate, he discusses whether class counsel and absent class members have (or do not have) a constructive attorney-client relationship for the purpose of professional ethics rules. During pre-certification proceedings, he argues, the view that a court adopts is crucial for understanding how class litigation will be regulated. Thus, if a court takes a narrow view of the attorney-client relationship, it “strips professional ethics rules of much force and limits the fiduciary obligations of class counsel to absent class members at the beginning of litigation.” A more robust conception, by contrast, “creates a fiduciary relationship and implies ethical requirements between an attorney and all class members and reduces the discretion class counsel.” Landsman-Roos stakes his position, “contrary to conventional wisdom,” that a fiduciary duty among counsel, the named class plaintiff, and each individual class member ought to attach when a class action complaint is filed. Thus, a precertification duty attaches and is owed not just to the named plaintiffs or the class as an entity, but to each potential unnamed class member.

Finally, Landsman-Roos addresses the scope of precertification duties. An attorney breaches fiduciary duties to class members when she makes a decision that prejudices the substantive legal rights of absent class members without notice and an opportunity for objections. When an attorney’s action potentially or actually prejudices an absent class member’s rights, the attorney should have a good faith defense: If the conduct was undertaken in a good faith belief that it would maximize the class’s recovery, she should not be found to have breached her precertification duties.

Landsman-Roos’s piece is well worth reading.  It addresses an important question of class action doctrine that courts and commentators have largely — and surprisingly — ignored for more than twenty years. He is thoughtful in his analysis of pre-certification duties, innovative in his quest for an analytical framework, and provocative in his conclusions and recommendations.

 
 

Posner on Realist Judging

Richard A. Posner, Reflections on Judging (Harvard University Press, 2013).

Reflections on Judging, by Judge Richard A. Posner, is the latest contribution to the familiar genre of extrajudicial writings by judges on the judicial process. But the book stands apart from most other works in the genre by the way that Posner situates the judge as part of a larger system while simultaneously maintaining a candid, personal, experience-based approach throughout.

In addition to offering personal reflections on the core judicial function of deciding cases through a sometimes creative process, Posner discusses the effects of pre-judicial careers, judicial selection, judicial training, law clerk selection and management, the writing process, the qualities of good and bad judicial opinions, the distinctive functions of trial court and intermediate appellate judges, judicial “googling” (he is an enthusiast), appellate advocacy, and many other matters beyond those conjured up by an image of the “judicial process” as the individual judge wrestling alone with difficult legal issues. For Posner, it is a matter of “urgent concern” to figure out “how the federal judiciary can cope with the increasing complexity of federal cases.” (p. 3) A question is “complex,” in this usage, “when it is difficult by virtue of involving complicated interactions, or, in other words, involving a system rather than a monad.” (P. 3) Appropriately, then, the book’s non-monadic reflections on judging exemplify the kind of approach that he thinks federal judges ought to take to complex matters more generally.

Those familiar with Posner’s more recent extrajudicial writings will see much that is familiar in both style and substance. Two middle chapters on what Posner describes as “coping strategies for appellate judges,” for example, are reworked versions of a published lecture Posner delivered on judicial restraint, and a development and synthesis of three items Posner wrote for The New Republic. Parts of Chapters 4, 5, and 8, to pick another example, are drawn from a different published lecture distilling Posner’s “beliefs concerning opinions and advocacy into practical advice for federal court of appeals judges, their law clerks, and the lawyers who practice before these courts.” Even apart from the addition of new material and clarifying edits, the revised versions of Posner’s older materials are worth reading and digesting as parts of a larger whole; their location in the book reveals Posner’s understanding of the overall coherence of these extrajudicial writings.

The book’s integration of earlier materials is not, however, uniformly successful. The chapters on judicial restraint (Chapter 6) and interpretation (Chapter 7), for instance, fit uneasily into the book because Posner’s reduction of these ideas to judicial attempts to escape from complexity are unconvincing. The chapter on judicial restraint would have fit better packaged as one influential federal appellate judge’s personal evaluations of some of his predecessors’ attempts to address constitutional questions (which the best parts of this chapter provide). And the chapter on interpretation should have been left out or at least significantly condensed and combined with the chapter on judicial restraint.

More generally, the most illuminating portions of the book are those in which Posner the judge offers experience-based advice and insights to those muddling through the judicial process daily, rather than those in which Posner the public intellectual takes on rivals. “I may be a good judge, a bad judge, or an indifferent judge,” Posner writes at the outset, “but I am undeniably an experienced judge.” (P. 2) Indeed. Appointed to the United States Court of Appeals for the Seventh Circuit by President Reagan in 1981, Posner has written more than 2,800 published judicial opinions, heard over 6,000 oral arguments, and read more than 15,000 briefs; he has also conducted (a much smaller but non-trivial number of) trials, pretrial proceedings, and settlement negotiations, participated in three-judge district court decisions, and decided appeals as a visiting judge in the Federal Circuit. Posner’s reflections on the cumulative experiences of his three-plus decade judicial career illustrate his lived commitment to Holmes’s aphorism about the life of the law.

Because understanding judges’ limitations and weaknesses is as important to him as understanding their capabilities and strengths, Posner reveals aspects of the judicial process that are usually hidden from all but judges, as well as others that remain hidden from or ignored by the judges themselves. In discussing post-argument conferences, for example, Posner asserts that judges “for the sake of collegiality often pull their punches in stating their view of how the case should be decided.” (P. 129) And he adds that “[o]nce a judge has indicated his vote in the case, even if tentatively, concern with saving face may induce him to adhere to his vote in the face of the arguments of the other judges, who moreover may be reluctant to press him to change his mind, fearing they’ll offend him by doing so.” (P. 129) Nor does the writing process necessarily bring previously unappreciated analytical and legal difficulties to light. Having entered laterally after a career path that encouraged them to act more as editors than as writers, most judges delegate opinion writing to law clerks. And although law clerks are “on average sharper analytically than their judge, law clerks are reluctant to argue with the judge.” (P. 255) A clerk may develop doubts “about the soundness of his judge’s take on a case . . . when in drafting the opinion the clerk discovers a problem that neither he nor his judge had noticed.” (P. 255) But that is typically too late: “The clerk will be tempted to paper over the problem rather than admit to his judge that he had failed to provide accurate advice before the argument and the vote. His job now is to defend the vote.” (P. 255)

Posner not only describes pitfalls in the decision process for appeals, but also explains some of what he does (and thinks other judges should do) to avoid or minimize them. One theme running through these counsels is the importance of candor. Within his office (no archaically termed “chambers” for him), Posner insists that clerks call him by first name because he wants them to be entirely candid and direct, “brutally so if they want.” (P. 127) Appellate judges should write their own opinions, Posner contends, as clerk-drafted products tend toward obfuscatory formalism. And these opinions should identify and discuss all the considerations (not just the formal legal considerations) that the judge is conscious of influencing the judge’s decision. Opinions written for other judges on a panel may require the judge “to compromise his views or blunt the opinion’s rhetorical thrusts,” and “concern with preserving collegiality, as well as consideration for the feelings of litigants and their lawyers, may properly induce a judge to turn down his rhetorical volume.” (P. 267) But while rejecting “let it all hang out” as a judicial motto, Posner insists that an opinion can and should be candid even while decorous. (P. 267)

To organize his observations and the prescriptions that emerge from them, Posner deploys a fundamental contrast between legal formalism and legal realism, which he develops throughout the book. The formalist acts as if conventional legal materials provide right answers in all cases, while the realist recognizes that this is not so and aims for reasonable and sensible results. In difficult cases, the formalist sees primarily legal complexity, while the realist sees primarily factual complexity. Posner wants judges to be realists. But who doesn’t (at least some of the time and with respect to some matters)? Certainly, no formalist that I am aware of fits Posner’s description of the type early in the book: someone who believes “that all legal issues can be resolved by logic, text, or precedent, without a judge’s personality, values, ideological leanings, background and culture, or real-world experience playing any role.” (P. 1)

Fortunately, the book’s many incisive mid- and low-level observations have value in themselves, even if one rejects Posner’s seemingly across-the-board advocacy of greater realism. And one should. The reader is put on guard to beware a false dichotomy when Posner describes formalism narrowly and then describes realism as “everything in legal thought and practice that is not formalism” (P. 5). Sure enough, when Posner later elaborates on the distinction, he describes “extreme formalism” and “extreme realism” as two ends of a spectrum along which American judges can be located. And yet the two are not really polar opposites even in Posner’s view. He renders all-the-time judicial realism plausible only by defining realism to subsume formalism. He writes that the good realist judge on a federal court of appeals acts like a formalist most of the time: “Because most appeals to federal courts of appeals can be decided satisfactorily by straightforward application of known and definite law to the facts of the case, and because most trial judges and intermediate appellate judges take seriously their role as modest law appliers—but also because it takes less time and effort to dispose of a case by application of known law to fact than by forging new law—federal court of appeals judges most of the time do decide appeals formalistically.” (P. 107) To which one should add: They would be bad judges if they did not decide these appeals formalistically.

Hints of the importance of formalism even at the Supreme Court level come through in a couple of passing observations Posner makes about Justice William O. Douglas. Here is someone who would seem to be the quintessential judicial anti-formalist. Yet Posner qualifies his one positive assessment of Douglas by limiting it to the time “before he soured on judging.” (P. 41) What exactly was it that Douglas soured on? And even though Douglas wrote his own opinions—as Posner thinks good appellate judges should—Posner rates those opinions as “the weakest” among those he saw when clerking for Justice Brennan. (P. 21) The reason they were weak, Posner says, is not that Douglas “was dumb” but “rather because he was bored.” (P. 21) What was he bored with, if not the bread-and-butter legal reasoning (most of it formalist) that makes up the daily fare even of Supreme Court Justices?

There is no reason that formalism in theory cannot match formalism in practice by subsuming a dose of realism. Posner acknowledges as much about formalist practice when he observes that modern formalists include “low-level practical concerns” in their judicial reasoning and then states that “modern formalism is better described as a tendency than as a dogma.” (P. 116) So, too, with the modern judicial realism that Posner endorses. Despite the impression one gets from the beginning of the book, by the end of Posner’s Reflections on Judging, it is clear that whatever else it may be, modern judicial realism is not best understood as anti-formalism.

 
 

Substance, Procedure, and the Interdependence of Gatekeeping Standards Across Multiple Stages of Litigation

Louis Kaplow, Multistage Adjudication, 126 Harv. L. Rev. 1179 (2013).

Legal reasoning is often a reductive enterprise that enables lawyers to address a difficult question by positing a series of constitutive questions.  Dissecting vexing problems into more manageable components fosters analytical precision.  But precision comes with a risk of overlooking connections between seemingly discrete issues.  Each isolated inquiry may develop a life of its own that obscures their collective interdependence.

This phenomenon of distorting problems by isolating them is evident in the legal academy’s approach to the study of procedure and the judiciary’s approach to resolving disputes.  Law schools generally do not offer courses in “procedure,” focusing instead on subsidiary fields such as criminal procedure, administrative procedure, and civil procedure.  Within each field, coverage further dissolves into distinct topics.  Students may occasionally explore “civil procedure” in the abstract, but more often will study narrower subjects such as pleading, discovery, and summary judgment.  Scholarship often mirrors these divisions, coalescing into distinct literatures analyzing discrete aspects of litigation.  Judicial opinions likewise rarely consider procedure as an undifferentiated whole.  Instead, decisions address motions tailored to particular phases of litigation.

The urge to simplify complex problems—such as how to manage adjudication—by dividing, categorizing, and rearranging their components is understandable and often unavoidable, but creates a risk of essentialism.  If pleading and summary judgment are distinct topics in casebooks, law review articles, and judicial opinions, one can be lulled into believing that they are completely distinct concepts.  Likewise, if civil procedure and administrative procedure are separate courses, and if both are separate from torts and contracts, one might assume that the values and aspirations animating each subject do not overlap.  Lawyers may conclude that procedural problems are fundamentally different than substantive problems and that evaluating the sufficiency of a pleading presents fundamentally different issues than evaluating a motion for summary judgment.

Commentators have long recognized and attempted to combat the allure of essentialism in efforts to structure legal analysis of complex questions.  Louis Kaplow’s article Multistage Adjudication is a fascinating addition to that literature and a welcome contribution to discourse about the optimal form and function of rules governing adjudication.

Kaplow contends that standards used to winnow claims as adjudication progresses through multiple stages must recognize the interdependence of each stage and the overlapping goals of substantive and procedural rules.  Rulemakers should not rely on traditional doctrinal boundaries, but must instead rethink the path of adjudication from beginning to end with an eye toward the substantive ideals that procedures implement.  The article considers several types of formal and informal adjudication in widely varying settings, ranging from civil and criminal litigation in courts, to investigations by law enforcement agencies and regulators, to administrative review of licensing applications and proposed mergers.  From Kaplow’s perspective, the objectives and features of adjudication transcend doctrinal categories and institutional contexts that typically limit comparative analysis.  This insight is itself a helpful reminder that common themes permeate distinct forms of adjudicatory procedure.  But I will focus here on civil litigation, to which Kaplow devotes his most sustained and detailed scrutiny.

The article defends and builds on three central premises.  First, civil cases on a path to final judgment must transit multiple gateways where judges have discretion to either terminate the case or allow it to continue.  For example, judges can grant or deny a motion to dismiss, for summary judgment, or for judgment as a matter of law.  Second, termination/continuation decisions occur under conditions of uncertainty, but judges acquire progressively more information as a case advances through successive gateways.  Third, the existence of uncertainty requires judges at each gateway to balance competing risks linked to the social costs of erroneous decisions.  Premature termination of strong claims undermines the deterrent force of substantive laws by signaling that an obligation or entitlement may be difficult to enforce.  But allowing weak claims to continue imposes needless litigation costs.  Misplaced costs in turn chill protected conduct by signaling that legal immunities may be ineffective, leading prospective defendants to mitigate exposure to meritless claims by modifying their behavior.

These foundational observations draw from existing scholarship, but Kaplow blends them into two original contributions that entail rethinking the relationship between ostensibly distinct types of rules.  He defends his conclusions in great detail with many subtle nuances and caveats.  The simplified account in this review focuses on his basic argument.

Kaplow first concludes that standards governing termination/continuation decisions at each gateway should be interdependent.  This interdependence arises because the marginal effect on deterrence or chilling that is appropriate at any given gateway is a function of how much deterrence and chilling occurs at the others.  From an ex ante perspective, actors considering the probability of being correctly sanctioned or improperly subjected to prolonged litigation must consider the aggregate affect of screening standards at all gateways.  Standards governing each gateway must account for the others to ensure that the aggregate effect is optimal.  Likewise, the value of producing additional information by allowing a case to continue in part depends on how later stages will assess that information.  The decision to allow a case to continue (e.g., by denying a motion to dismiss) might hinge on predictions about what will happen at the next stage (e.g., discovery) and how events at that stage will influence application of later screening standards (e.g., summary judgment).  These interdependencies suggest that a rulemaker choosing between a relatively strict or lenient standard for termination/continuation decisions cannot focus solely on the supposedly essential characteristics of a particular litigation stage.  Instead, whether a screening rule should be strict or lenient depends in part on the strictness or leniency of prior and subsequent screening rules.

A second conclusion is that termination/continuation standards elide categorization as either substantive or procedural.  At each gateway, a court’s analysis of how screening standards affect deterrence and chilling will depend on the content of claims and defenses.  Relevant factors include the difficulty of proving various kinds of claims and the importance of preventing or protecting various types of conduct.  A screening rule therefore might seem to be transsubstantive because it applies in all civil cases, yet may include factors that lead to varying outcomes in different contexts.  Standards for assessing these factors have both substantive and procedural characteristics because they influence ex ante behavior while managing adjudication.  Likewise, screening standards that overtly retreat from pure transsubstantivity by emphasizing context-specific factors—such as the heightened pleading requirement in the Private Securities Litigation Reform Act—can be conceptualized as creating substance-sensitive procedural law or process-sensitive substantive law.  Either way, distinctions that Kaplow treats as “semantic[]” should not distract from the underlying problem, which is the difficulty of crafting screening standards that optimally balance deterrence, adjudication costs, and chilling.

Kaplow is candid about the limits of his analysis.  His goals are “clarifying thought, expanding perspective, and raising alternatives rather than establishing correct legal interpretations or advocating particular reforms.”  The ambitious scope of his project leads him to rely on simplifying assumptions.  The ensuing crisp formulas abstract away the practical challenges of drafting broadly applicable rules and applying them to the messy and uncertain facts of individual disputes.  Moreover, Kaplow’s assumption that substantive and procedural law share a single goal of maximizing social welfare leads him to omit other potentially relevant goals, including promoting values addressed in the literature on “procedural justice.”  (The word “justice” is notably missing from the 120-page article.)  These additional values might be important in their own right, or as new factors in a social welfare calculus that Kaplow limits to only three variables: deterrence, chilling, and adjudication costs.  Rulemakers might therefore agree with Kaplow’s conclusions that gatekeeping standards should consider substantive and procedural factors and should be interdependent, yet question whether his criteria for optimizing those standards are complete.

Limits aside, Kaplow’s analysis is pathbreaking.  Discourse about gatekeeping often bogs down in the perceived idiosyncrasies of distinct litigation stages.  Kaplow shows that the relevant context is the act of gatekeeping itself and that many of the relevant inquiries transcend traditional doctrinal categories.  His nuanced account of how rulemakers should define and implement these inquiries invites rethinking of hotly contested questions such as how to assess the sufficiency of a pleading, when to allow discovery, and whether to grant summary judgment.  The article is thus an innovative catalyst for multiple literatures.

 
 

Police Don’t Pay

Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. ___ (forthcoming 2014).

Whenever I teach criminal procedure I arrange for a police officer to talk to my students.  It’s always a fascinating class.  I remember one time in particular when a student asked an officer whether the officer would be more unhappy if evidence he found was excluded from trial on Fourth Amendment grounds, or if he faced personal liability in a civil damages suit under section 1983 for a Fourth Amendment violation.  With absolutely no hesitation, the officer said that he would be much more unhappy if he had evidence excluded in a criminal case, and that he simply didn’t worry about section 1983 because an occasional lawsuit was par for the course.

At the time, I thought it was a surprising answer and so did my students.  Wouldn’t most officers be more concerned about a lawsuit that could expose them to personal financial liability?  That assumption seems to have driven much jurisprudence in the constitutional litigation arena—for example, the doctrine of qualified immunity is premised on the notion that officers need breathing room to do their jobs without worrying incessantly about crippling financial liability.

After reading Professor Joanna Schwartz’s article Police Indemnification, however, the officer’s response began to make a lot more sense to me.  Through detailed empirical research, Schwartz provides an unprecedented contribution to our understanding of the practice of indemnification of police officers by the jurisdictions that employ them.  One of the most impressive features of her research is its scope:  Schwartz sent public records requests to seventy of the largest police departments and law enforcement agencies, seeking information about the amount spent in judgments and settlements from 2006 to 2011.  She followed up on these public records requests with emails and phone calls to risk managers, city attorneys, city council staff, city clerk employees, and plaintiffs’ attorneys in the relevant jurisdictions, ultimately obtaining useable data from forty-four jurisdictions that included twelve of the country’s twenty largest law enforcement agencies and nearly 20% of the country’s sworn law enforcement personnel.

Professor Schwartz’s data yield a stark finding:  police officers are virtually always indemnified.  Officers contributed to judgments in just 0.44% of the 8600 civil rights settlements and judgments to plaintiffs, and their contributions amounted to a mere 0.02% of the $760 million that states, cities, and counties paid out in these cases.  And even in cases involving punitive damages—where the officers’ conduct was presumably most egregious—officers paid only 0.005% of the $3.8 million in punitive damages judgments entered against them.

Using the same methodology, Professor Schwartz is in the process of contacting 70 small and midsize jurisdictions. As of the most recent draft, she had heard from 30, and the number will likely increase by the final draft. In every known instance, these jurisdictions indemnified their officers as well.

One of the most remarkable findings is that governments often indemnified officers even when indemnification was directly prohibited by statute. For example, municipalities frequently indemnify for punitive damage awards, even when the relevant statute expressly forbids such payment. Even when officers were terminated or sanctioned by their employers, the officers still generally did not contribute financially to the judgments against them.

Despite the likelihood of indemnification, Schwartz also found anecdotal evidence that municipalities use the possibility of a refusal to indemnify as leverage in settlement negotiations with plaintiffs, even if the municipality almost inevitably indemnified the officer in the end.  In keeping with the careful approach of her overall project, Schwartz takes no position on whether attorneys for municipalities deliberately inflate the possibility that they will not indemnify an officer to pressure plaintiffs to accept settlement agreements.  Given the starkness of the overall data, however, it seems to me that in some instances such leveraging is, at a minimum, quite misleading.

Schwartz’s work is important both because it fills a gaping empirical hole in the literature and because it runs counter to many of the assumptions that courts have made when deciding issues relating to monetary claims against law enforcement officers.  The contours of the doctrines of qualified immunity, municipal liability, and punitive damages, among others, have evolved as they have in part because courts have assumed that at least some of the time officers pay out of their own pockets when they are sued.  So Schwartz’s striking empirical evidence to the contrary should prompt courts to rethink these doctrines and litigators to reexamine their strategies.  Indeed, her work provides an impressive example of precisely how useful and practical legal scholarship can be.

Of course, all research has its limits, and some questions bear further examination.  For example, Schwartz suggests that perhaps the concern of over-deterring police officers in doing their jobs is less important than we thought it was, given that most officers can likely count on indemnification.

But other factors arguably (over-)deter police officers as well.  For example, even an officer who is 100% certain that he will be indemnified still may desperately wish to avoid the stress, publicity, and personal exposure of a lawsuit.  I suspect that at least some officers would pay some amount of money in order to avoid the psychological and administrative hassles of personal-capacity litigation. And even when an officer is more than 99% sure that he will not have to pay, statistical unlikelihood does not always yield reassurance or prevent over-deterrence. (If it did, then far fewer people would struggle with fears of flying or avoid flying altogether.)

Future research might usefully examine the perceptions of officers themselves.  What percentage of police officers know that they’re extremely unlikely to end up paying out of pocket for civil rights violations?  Do they even know that a personal judgment in a civil rights suit is a theoretical possibility?  If officers don’t know, then perhaps Schwartz’s findings have less impact on deterrence than we might expect, despite their many other troubling implications.

I hope that future research will take an empirical approach to these and other important questions.  For now, Schwartz’s work provides an important contribution to an area that has long cried out for empirical examination.  Courts, commentators, governmental agencies, litigators, and police officers would do well to read her work and consider carefully its implications.

 
 

A New Take On The Swing Justice

Peter K. Enns & Patrick Wohlfarth, The Swing Justice, J. Pol. (forthcoming  2013).

Whether quantitatively, qualitatively, journalistically, historically, or jurisprudentially, scores of papers have analyzed the “swing justice.” Is there anything left to learn?

Yes. In The Swing Justice, political scientists Peter Enns and Patrick Wohlfarth claim to make two contributions to the existing literature. By my count, it’s more like one-and-a-half, but that’s still a lot for a subject as picked over as this one.

Let me start with the first contribution: The authors show that in a non-trivial fraction of 5-4 decisions, the Court’s swing (median) justice does not cast the decisive vote. I score this a one-half contribution because that observation alone isn’t news. As other writings (including my own) have shown, some medians are far more powerful than others. In part that’s because the strength of the median has less to do with who occupies the “swing” seat and more with the Justices who sit close to the center. When several Justices are bunched together in the middle, medians are weak because either the left or right side of the Court can jump over them to create a coalition. But when medians are ideologically distant from the colleagues closest to them, they can emerge as “super medians”— Justice Clark in the late 1950s or Justice Kennedy today.

So why give Enns and Wohlfarth even a one-half contribution here? Because unlike many (though not all) of us, they don’t assume that there is only one median each Term. Swings, they tell us, can vary from issue to issue and so need to be identified separately for each one. This move doesn’t distinguish between super medians and all others; nor is it altogether clear that it’s necessary (see their note 13). But allowing medians to vary by issue does add some nuance to the analysis. At least it responds to a chronic complaint with the political science literature: that it does not differentiate among legal areas for the purpose of aligning the Justices from left to right.

Having identified the issue-specific medians, as well as the cases in which they did and didn’t cast the pivotal vote, Enns and Wohlfarth develop what I see as the chief contribution of the paper: trying to understand what makes swing Justices tick. It turns out that the swings’ ideology is not a significant predictor of their votes in 5-4 cases—but public opinion is. As the “mood” of Americans grows more liberal, the median is more likely to cast a liberal vote; as it grows more conservative, the median is more likely to cast a conservative vote. This is consistent with existing work, but there are some nice spins here. First, to my knowledge no one has focused explicitly on the influence of public opinion on closely divided (and, often, quite salient) cases; Enns and Wohlfarth fill this gap in fine form. Second, public opinion is not only a driver of the median’s vote; it also helps predict the pivotal vote even when it is not cast by the median. The suggestion here is that in some of the most contentious and important disputes, the “will of the people” plays a crucial role. (Hats off to Barry Friedman.)

There are other interesting findings I could mention—for example, the ability of the Solicitor General to move the median’s vote. The larger point, though, is that The Swing Justice manages to continue the conversation over the importance (or lack thereof) of the median Justice. I can imagine others now (re)joining the discussion—perhaps by evaluating the efficacy of Enns and Wohlfarth’s results for super medians versus all others, or by exploring some of the excellent suggestions for future research outlined in the article’s conclusion.

 
 

James Wilson, the Committee of Detail, and the Federal Judiciary

William Ewald, The Committee of Detail, 28 Const. Comment. 197 (2012).

We know far too little about James Wilson, the Scottish-born and -educated lawyer who played a central role in framing the Constitution as a delegate from Pennsylvania and later served as Associate Justice of the Supreme Court.  Wilson was hounded to an early grave in 1798, after financial reversals landed him in debtor’s prison.  That ignominious end seems to have cast a long shadow, obscuring his earlier career as lawyer, judge, and statesman.  Happily, however, William Ewald has embarked on an intellectual biography of Wilson that will doubtless do much to restore the reputation of this most nationalist of founding fathers.

One interesting chapter of that biography has just appeared in article form.  It focuses, as the title suggests, on the work of the Pennsylvania Convention’s Committee of Detail.  Wilson was one of five members of that Committee, named in July 1787 to prepare a draft Constitution that reflected the Convention’s deliberations to that point.  Much of what we know about the Committee’s work comes from the text of Wilson’s own drafts of the Constitution.  We can watch provisions evolve and take shape as the product of a deliberative process of which we have no other record.

Ewald begins his analysis of the Committee’s work by situating it as one of three important acts in the Constitution’s development.  Act I precedes the Committee’s appointment in late July 1787; it includes the initial introduction of the Virginia Plan, the Convention’s deliberations on that plan in Committee of the Whole, and the eventual decision to commit the resolutions in that plan, as amended, to the Committee of Detail for elaboration.  Act III includes the Convention’s work following the Committee of Detail’s report in early August 1787.  In that piece of the drama, delegates worked through the text line by line, suggesting changes and adding new provisions.  Ewald observes that historians, drawing on Madison’s notes, devote most of their attention to Acts I and III.  They virtually ignore Act II, the interlude during which the convention adjourned to let the Committee of Detail hash out particulars.  Ewald sets out to reclaim the importance of the Committee’s work and to highlight its contributions to the document.

Ewald performs this reclamation task quite well.  He shows that the Committee contributed a great deal to the final terms of the Constitution; indeed, he finds that, in terms of pages, the Committee was far more productive, page for page and day for day, than its more celebrated prequel and sequel.  He also explains why the Committee’s work has been so widely ignored:  its members simply failed to compile a documentary record comparable to the detailed notes that Madison made of the deliberations in Acts I and III.  Historians, after all, need sources.  What little we do have by way of sources on the Committee’s work have come to light slowly over time.  Ewald explains how these sources came into the hands of historians, an interesting and parlous story.  Randolph’s early Committee draft was found among the papers of George Mason (Randolph’s fellow Virginian and non-signer of the final document).  Wilson’s own drafts surfaced much later in the archives of the Historical Society of Pennsylvania and had been largely ignored both by their donors and by the archivists.

Ewald has held Wilson’s documents in his hands, and his hands-on engagement with the sources adds much to his understanding of their meaning.  For example, he contrasts Wilson’s fine penmanship with the sloppier handwriting of Randolph and Rutledge; he speculates that Wilson’s primacy in preparing the two final drafts may have had as much to do with the legibility of his hand as with his intellectual leadership on the Committee.  Randolph’s earlier draft, by contrast, may reflect his own attempt to capture the sentiments of the convention and may have been written before the Committee began to deliberate.  If so, Randolph deserves credit for many of the innovative features of the Committee’s work that first appeared in his draft, including the first full draft of what became Article III.

Students of the federal court system, who have long attended more closely to the Committee of Detail than other constitutional historians, will welcome the many insights that Ewald contributes to our understanding of its work.  One topic of Committee consideration was the suability of states in federal court.  Randolph’s original draft provided for federal jurisdiction over suits between two states.  Perhaps his willingness to embrace state suability – a position he reaffirmed as the attorney for the plaintiff in Chisholm v. Georgia – took shape in the course of his Committee work.  In fact, a provision added to Randolph’s draft set the stage for Chisholm by authorizing federal jurisdiction over disputes between a state and the citizens of another state.  While this language was inserted by Rutledge, Ewald explains that it was the likely product of Committee deliberations, with Rutledge acting as the chair.  While we cannot determine who proposed the additional language that led to the nation’s first constitutional crisis and the ratification of the Eleventh Amendment, the Committee’s willingness to embrace state suability was certainly congenial to Wilson.  The 1790 Pennsylvania state constitution, which Wilson drafted in large part, included a provision authorizing and directing the state assembly to provide for state suability, and he was among four Justices who voted to uphold Chisholm’s right to sue the state of Georgia.  Wilson, who added the “we the people” formulation to the preamble as a member of the Committee of Detail, emphasized popular sovereignty while denying that the states enjoyed sovereign immunity from suit.

Another curious historical juxtaposition arises from Oliver Ellsworth’s participation on the Committee.  A delegate and judge from Connecticut, Ellsworth went on to serve as one of that state’s first two senators and later as Chief Justice of the United States.  As Senator, Ellsworth took the lead in drafting the Judiciary Act of 1789, with its provision for district courts, circuit courts, and one Supreme Court staffed by peripatetic Justices who also rode the circuits.  At the time, Ellsworth’s Act was viewed by many as a temporary expedient (and indeed it lasted only until 1891, when Congress abandoned circuit riding in favor of permanent circuit court judges).  That perception of expediency led to calls for reform, one of which was addressed by Congress to Edmund Randolph, who was serving as the nation’s first Attorney General.  Randolph responded in December 1790 with the report that bears his name, advocating a greater separation of state and federal courts, an end to circuit riding, and the adoption of something like what became the Anti-Injunction Act of 1793.  Randolph also argued that the jurisdictional language of the Act should more carefully follow the language of Article III.

Knowing as we now do that Randolph may have had substantial pride of authorship in such phrases as cases “arising under” the Constitution, laws, and treaties of the United States, we can perhaps better understand the frustration he felt at the Judiciary Act’s failure to follow form.  What’s more, Randolph’s approach to jurisdiction may have come at the expense of Ellsworth’s different vision of the federal judicial role.  One cannot avoid speculating that Ellsworth viewed his leadership in the Senate as an opportunity to make his own mark on the federal judiciary and perhaps to win a point that had failed to carry two years earlier in debates at the Committee of Detail.  Nor can we quite avoid the conclusion that Randolph believed that these departures from the text, if not the spirit, of Article III took the judicial department in the wrong direction.

Ewald’s contributions focus less on the details of the judicial article than on the larger debates that shaped the evolution of the Constitution.  He nicely connects likely position-taking in debates at the Committee level to positions that players later advocated on the floor of the Convention.  He is deeply read in the nuances of drafting history and sees the forces that influenced the delegates.  We come away from his project with a much deeper awareness of the impact of the Committee’s work, including the distinctly nationalizing contributions Wilson made to the debate, both within the Committee and at the Convention.  As a new convert to the notion that Scotland may have much to teach us about the origins and meaning of Article III, I find the reclamation of our most Scottish of Founding Fathers welcome news indeed.

 
 

The National Security Courts We Already Have

Robert Timothy Reagan, Fed. Jud. Ctr., National Security Case Studies: Special Case-Management Challenges (2013).

One of the longer-lasting consequences of the “Summer of Snowden” may well be the increased attention paid to the Foreign Intelligence Surveillance Court (FISC)—the special, secrecy-laden tribunal created by Congress in 1978 to oversee the U.S. government’s foreign intelligence activities. Among other things, greater public knowledge of the FISC’s role in both approving and circumscribing the government’s use of its secret surveillance authorities has rekindled the decade-old debate over the need for Congress to create special “national security courts.”

The animating justification for such tribunals is that, like the FISC, they would be in a better position than the ordinary Article III district courts to reconcile the central tension in national security adjudication: Balancing the secrecy pervading most national security and counterterrorism policies with the need to provide victims of governmental overreaching a forum in which to vindicate their statutory and constitutional rights. Indeed, although they have varied (at times, dramatically) in their details, proposals for specialized national security courts often hold out the FISC as the model upon which such tribunals can—and should—be based. To similar effect, many of the proposed reforms spurred by Snowden’s revelations have focused on increasing the volume and scope of litigation handled by the FISC, rather than shunting more of these issues into the federal district courts.

A quietly remarkable publication by the Federal Judicial Center’s Robert Timothy Reagan, written on behalf of the FJC, provides a powerful counterweight (both figuratively and literally) to such efforts. Reagan’s monograph is a case-by-case compilation of how different federal judges in regular Article III courts—87 in all—have resolved some of the unique and complex issues that arise in both criminal prosecutions and civil suits implicating national security. If a new case raises an issue concerning the admissibility of classified evidence, the guide provides 31 distinct examples summarizing how the issue arose previously and how it was resolved. So, too, for topics ranging from witness security to religious accommodations; from service of process on international terrorists to remote participation of witnesses; and from attorney-appointment questions to the usability vel non of evidence obtained under the Foreign Intelligence Surveillance Act (FISA). In short, for civil and criminal litigation alike, Special Case-Management Challenges is a comprehensive reference—a how-to guide for federal judges facing similar challenges in current and future cases.

In that regard, National Security Case Studies: Special Case-Management Challenges, is hardly typical fodder for a JOTWELL review. The new (fifth) edition, published in June, checks in at a super-dense 483 pages. It is exceedingly light on analysis, exceedingly heavy on footnotes (4294, if you’re scoring at home), and hardly a page-turner for even the most devout students and scholars of the federal courts, given its organization as a case-by-case guide to how different federal courts have handled the national security issues to come before them. Thus, after presenting detailed summaries of the factual background in which each of these issues arose, the book then recaps the individual ruling—and, where applicable, how it fits into broader doctrinal patterns. Indeed, as Reagan writes in the brief introduction, “The purpose of this Federal Judicial Center resource is to assemble methods federal judges have employed to meet these challenges so that judges facing the challenges can learn from their colleagues’ experiences.” As Reagan explains, Special Case-Management Challenges is largely a descriptive guide—in contrast to a separate FJC publication also authored by Reagan, titled National Security Case Management: An Annotated Guide, which more specifically highlights the specific lessons that might be learned from the ever-increasing volume of such jurisprudence.

Yet the unstinting focus of Special Case-Management Challenges on comprehensively “assembl[ing] methods” used in prior cases—“based on a review of case files and news media accounts and on interviews with the judges”—is exactly what makes it so compelling. And although its target audience is the federal bench, its utility and appeal actually sweeps far more broadly. What Reagan has compiled is not just a comprehensive set of data points, but a body of evidence tending to validate the ability of the ordinary civilian courts effectively to grapple with some of the thorniest challenges to arise in national security litigation.

Special Case-Management Challenges provides a powerful rejoinder to the (usually unsubstantiated) claim that the ordinary federal courts lack the capacity and/or institutional wherewithal to handle criminal cases involving high-profile terrorism suspects, civil suits challenging secret governmental counterterrorism programs, or anything in between. A veritable bevy of commentators—including sitting federal judges, policymakers, and academics—have offered anecdotal arguments to this effect in recent years. Reagan’s work fatally undermines that position, for it demonstrates how, in case after case, federal judges did what federal judges do—make accommodations where they were both necessary and appropriate (such as in the Abu Ali case, where Saudi intelligence officers were allowed to testify at a suppression hearing via a live, satellite link), and push back in cases in which they were not. Even a cursory scan of the work of the federal judiciary in this area suggests that, while national security litigation presents unique case-management challenges, those challenges are not uniquely beyond the competence of federal courts to resolve. In short, after reading through this monograph, it can no longer be said—at least not seriously—that Article III courts are unable to deal with such issues; the debate must shift to whether any of the proposed alternatives would do a better job.

Of course, reasonable people can—and always will—disagree over whether the federal courts are striking the right balance between the government’s interests and individual liberties in civil and criminal cases raising challenges unique to national security litigation. But insofar as these challenges are likely to remain with us for generations, the most important upshot of Reagan’s treatise is not just its account of how our federal judges have sought to resolve this fundamental tension, but that they have done so—and on an increasingly routine basis. Whatever else may be said about proposals for new national security courts, their biggest shortcoming is their failure to grapple with the national security courts that, as Reagan’s work shows, we already have.