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.


Taking Public Adjudication Seriously: Recognizing the Importance of Timing in Party Rulemaking

Daphna Kapeliuk & Alon Klement, Changing the Litigation Game: An Ex-Ante Perspective on Contractualized Procedures, 91 Tex. L. Rev. 1475 (2013).

Anyone caught up in litigation—whether lawyer or litigant—would situate the recent interest in party rulemaking within the larger debate over the merits of maximizing party choice in dispute resolution. They would focus on setting appropriate limits on the practice of party rulemaking in order to balance the benefits of increased efficiency for the litigants and the public with the risk of abuse and the potential for bringing the administration of justice into disrepute. This perspective on party rulemaking often leads to a further analysis of the value of game theory in illuminating and assessing the range of outcomes that can emerge depending on how party choice is confined.

In their article, Daphna Kapeliuk and Alon Klement (members of the Radzyner School of Law, Interdisciplinary Center, Herzliya) engage with the leading U.S. commentators in this area, most notably Robert Bone’s Party Rulemaking, Making Procedural Rules Through Party Choice. They take the analysis beyond the interests of litigants and others in the system to show how party rulemaking can have important public implications and can, in effect, ‘change the litigation game’ itself.

Kapeliuk and Klement do this by highlighting a key feature of the analysis that is generally lost in concentrating on the strategic implications of particular choices and their potential to affect the outcome (both the specific result and the efficacy of the process). This key feature is the timing of the party-rulemaking—whether it is ex ante or ex post the emergence of the dispute. As they explain, changing the rules once a dispute has arisen may not really be much more than a function of party prosecution within the adversary system itself. This remains the case whether the party making the rules chooses among ordinarily available options or selects a procedure beyond the possibilities that are ordinarily available, thereby changing the rule. In any event, parties are less likely to cooperate to change the rules after a dispute has arisen, because in the adversary system, such a change will rarely be seen as in their mutual interests.

Changing the rules in advance of the emergence of a dispute is different. It may not be obvious to courts how ex ante, rather than ex post, party rulemaking affects the outcome of the dispute and the process by which it is reached. This does not mean that it should be ignored, however. As the authors explain:

When evaluating the impact of a pre-dispute procedural commitment on institutional values such as judicial integrity and legitimacy, courts should be aware that the outcome they observe is only one of many possible contingencies that could have materialized. The modified rule has transformed the parties’ relationship from the time they had agreed on it. It has affected their behavior in performing their contractual obligations, the probability that a dispute would arise, and their litigation behavior. All these effects have public implications that go beyond the parties and that have to be considered when enforcement of the parties’ agreement is at stake. Focusing on one contingency that has materialized misses the full range of public implications.

Perhaps more significantly, the changes to the rules that parties agree upon ex ante can be evaluated more readily in contractual terms for their implications for the traditional procedural values that underlie our civil justice system. Are these choices so unbalanced as to raise concerns about the relative bargaining powers of the parties? Are they so ill-conceived as to offend fundamental tenets of our legal system? What do they say about the way our courts are functioning and whether they are meeting the needs of the public?

It is true that Kapeliuk and Klement are not the first to observe the differential benefits of party rulemaking for the parties and for the public that can arise in certain disputes. Party rulemaking can, for example, deprive the public of useful precedents or interfere with the courts’ ability to support fundamental social policies. By emphasizing the need to consider the timing of party rulemaking, Kapeliuk and Klement underscore how party rulemaking can have a transformative effect on civil litigation, and the way it supports or undermines the incentives to perform contracts and shapes the parties’ responses to potential disputes.

In this sense, Kapeliuk and Klement show not only how ex ante contracting for disputes can change the litigation game, but also how, in view of its transformative potential on the role of courts, it ought to be taken seriously—as more than a game. Well worth reading—well played!


Opinions, Briefs, And Computers—Oh My!

Research on the federal courts often follows this basic pattern: 1) identify issue (often made salient because of a recent Supreme Court case); 2) analyze federal court opinions for cases relevant to that issue; and 3) write article. This process, which we might label “issue analysis,” has served, and will continue to serve, legal scholarship well. Issue analysis is very effective for evaluating and analyzing court handling of specific doctrines, statutes, and regulations. Less frequently, federal courts scholarship seeks to identify larger, often comprehensive, theories of how judges and courts behave, which we might label “behavior analysis.” Such endeavors can apply to the hundreds of thousands cases filed each year in the federal courts. As a result, researchers face significant problems not normally associated with issue analysis, including cherry picking suitable examples, confirmation bias, and inadequate treatment of contrary evidence. Empirical methods are a logical way to deal with those concerns, but publicly available datasets are few and human coding of legal documents can be extremely labor intensive and costly. Thankfully, these problems can be significantly curtailed by using computer-aided content analysis to evaluate large pools of cases.

Chad Oldfather, Joseph Bockhorst, and Brian Dimmer have published a wonderful article, Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, and the Methodology of Legal Scholarship, which illustrates exactly how such research should proceed. The research question they address is a very basic one: how do party briefs affect judicial opinions? One might think such a core question of litigation would have been addressed by numerous studies. However, as the authors rightly explain, the methods for addressing such a question are prone to the classic concerns with using behavior analysis. As a result, there simply has been no tested general theory of how briefs affect judicial opinion writing.

I highlight this article not necessarily for its actual findings, but instead for its careful and thoughtful methodology. Indeed, the authors recognize that the study’s findings are not their key contribution—the methods of study are where readers can learn the most. The article is more a proof of concept than an attempt to definitively answer the very broad research question addressed. Because of the sheer volume of courts-related articles published every year, it is quite easy to miss reading an innovative and significant scholarly work with modest conclusions but innovative, sophisticated, and well-executed methods. This piece should not be overlooked.

The authors study a sample of opinions and party briefs from 2004 in the United States Court of Appeals for the First Circuit to determine how the briefs influence the ultimate written opinions (what the authors refer to as “judicial responsiveness”). Initially, the study uses conventional human analysis of briefs and opinions to assess judicial responsiveness, with the researcher coding each case as either being “strongly responsive,” “weakly responsive,” or “nonresponsive.” Although extensive instructions and examples are given to aid human coders in differentiating the three variable options, the shortcomings of such a technique should be obvious.

They do not stop with reductionist human coding in their efforts to analyze the studied opinions and briefs, however. Where the study gets far more interesting is in the use of computer-aided content analysis to determine the similarity between party briefs and written opinions, analyzing the language and words in a document or set of documents. The judicial responsiveness measure is assessed along two dimensions using automated content analysis: word use similarity and citation utilization. The usage of similar words is determined using the cosine similarity method, which is often coded into plagiarism detection programs, allowing them to compare the word similarity between each party brief and the written opinion. For citation analysis, the computer determines the percentage of brief citations that are used in the judicial opinion. This type of analysis simply cannot be completed by humans. Word similarity in particular is essentially a machine-only enterprise. Citation tracking might be accomplished with a significant labor force, but such resources are rarely available to legal academics.

With three different coding techniques to deploy—one human, two computer—the authors find some very interesting data to compare. Significantly, both computer-coding techniques are strongly correlated with the human coding, despite the relatively small sample size. A reader might be skeptical of potentially subjective human coding, the difficult-to-comprehend cosine similarity method, or the limited value of citation appearance. However, that all three measures are correlated is in itself a remarkable finding. Regardless of the measure used, the results of judicial responsiveness are statistically similar. The correlation supports the statistical validity of each measure independently and strengthens the argument for using them collectively.

This is not to say that the three measures produce identical results. Indeed, the differences identified between the three techniques provide insight into potential refinements of content analysis techniques and directions for future work. The lower rate of judicial responsiveness based upon citation use highlights the limited value of such a measure and ultimately supports a hybrid scoring system. Further, the authors consider the potential value of more sophisticated learning computer algorithms that can increase the validity of the computer measures beyond the basic techniques they presently use.

Scholars might be confused, intimidated, or wary of computer-aided content analysis. However, this article illustrates exactly why academics should make greater efforts to engage with and to understand such tools. By using content analysis methods, a researcher can more reliably and validly answer research questions potentially covering large numbers of legal documents. The article is hopefully the first in a long line of studies that will use automated techniques to study the relationships among the varied pieces of paper that we, as legal academics, make the objects of our professional inquiry.

The careful and thoughtful use of these new tools in Triangulating Judicial Responsiveness provides a model for such future research.


The Truth About Empathy

Thomas B. Colby, In Defense of Judicial Empathy, 96 Minn. L. Rev. 1944 (2012).

President Obama was widely criticized when he stated that he viewed a “quality of empathy, of understanding and identifying with people’s hopes and struggles” as an essential attribute in a judge, one that he would look for in choosing Supreme Court justices and other federal judges. Conservative commentators attacked this as endorsing naked judicial activism, a call for more liberal judges running amok and deciding cases to suit their political preferences in favor of the “little guy” rather than based on “law.” Neither of the President’s Supreme Court nominees would openly endorse the empathy standard in their confirmation hearings, although Justice Kagan subtly defended the underlying idea, if not the terminology, at her confirmation hearing. And Republican members of Congress used the President’s words (or at least their (mis)interpretations of those words) to oppose his Supreme Court nominees.

With In Defense of Judicial Empathy, Thomas Colby undertakes the first comprehensive scholarly treatment and defense of the President’s arguments and of empathy as an essential and unavoidable component of good judicial decisionmaking. And he ties the centrality of empathy to broader debates over the judicial role.

Colby begins by identifying and correcting the arguable cause of much of the controversy over the President’s standard—the confusion between empathy and sympathy. While empathy is a relatively new word of contested meaning, Colby adopts the dictionary definition: the “action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner.” Empathy is the cognitive skill of being able to see a situation from someone else’s perspective and to understand how and why someone sees, feels, and acts as they do. That is fundamentally different than sympathy, through which a person is affected by and acts in support of the feelings of another. As Colby puts it, sympathy is feeling for someone; empathy is feeling with someone.

Importantly, the ability to empathize—to experience, feel, and understand what another person experiences, feels, and understands—says nothing about what a judge should do with the information gained from her empathy. Empathy does not tell a judge to decide in a particular way. Contra many conservative political and scholarly critics, Colby insists that empathy merely guides judges in hearing and thinking about the case, not in deciding for or against any party. A judge can exercise empathy even if she ultimately decides not to adopt the position of the party into whose shoes she steps. Although Colby does not use the term, we can understand empathy as procedural—as governing the “manner and means” by which judges hear and think about cases. Empathy enables judges to identify, understand, and consider all the variables that should be analyzed, including the positions, feelings, and experiences of the parties; it says nothing about the outcome of that analysis.

Colby does recognize a “nontrivial concern” that a judge’s empathy may turn into sympathy, prompting her to rule based on feeling sorry for one side of a dispute (particularly the poor, disadvantaged, or underdog side) rather than on the law. But this is not solely a liberal danger, as arguably demonstrated by Justice Alito’s dissents in Snyder v. Phelps (invalidating civil judgment against public protests outside funeral) and United States v. Stevens (invalidating federal statute prohibiting video depictions of animal cruelty). Alito alone argued that expression lost its constitutional protection when it was aimed at the grieving parents of a deceased soldier “at a time of acute emotional vulnerability” or when the expression depicted animals experiencing “excruciating pain.” In his view, the harm and pain suffered by mourners and kittens, for which he clearly felt an affinity, trumped standard free-speech principles. In any event, that empathy might bleed into sympathy cannot mean that a judge should not possess or exercise empathy, only that she should (and likely will) strive to be aware of how one can lead to the other and to ensure that her empathy does not lead to subconscious sympathy-based decisionmaking.

Having properly defined empathy and disaggregated it from sympathy, Colby then argues that, rather than being undermined by empathy, a judicial system in fact cannot properly function without it. Empathy is essential in an adversary system, where each side is given an opportunity to present its best legal and factual arguments, and the judge is charged with selecting the better of those arguments. For that opportunity to be meaningful, the judge must be truly capable of hearing, listening to, and understanding the legal and factual arguments that each party presents. That empathy is many-sided. A judge should hear and understand the feelings, experiences, and needs of all parties, not just one. And it is politically neutrala liberal judge cannot only hear and understand the “little guy” and ignore the positions of corporate actors, the government, or crime victims. Empathy, Colby insists, is the “capacity to understand the perspective and feel the emotions of othersall others.” (emphasis in original).

Finally, Colby ties empathy to the debate over the “judge-as-umpire” analogy that Chief Justice Roberts famously offered at his confirmation hearing. Colby rejects the analogy as “bankrupt,” because it erroneously assumes that law is as determinate and capable of producing objectively correct answers as whether a pitch is a ball or strike.

But it isn’t, as Colby demonstrates through a range of constitutional and subconstitutional doctrines defined by multi-factor balancing tests. These require a judge to weigh competing interests and concerns, which she only can do if she genuinely understands those interests and concerns through an exercise of empathy. Judges routinely predict future behavior, balance competing individual interests, and apply “reasonable person” tests that “require judges to assume the perspective of various actors to determine whether their behavior was objectively reasonable.” A court can properly decide whether a school principal acted reasonably in strip-searching a female student only if the justices truly can put themselves in the shoes of both the principal and the student and understand the concerns that motivate and affect each. A court can only determine whether a law has a rational basis if the judge understands the positions of all involvedthe legislators trying to solve problems with imperfect lines, the people sought to be protected, and the people subject to the law’s regulatory reach. A court can only decide whether an objective observer would view a religious display as endorsing religion if the judge can put herself in that observer’s shoes.

Unlike baseball, law requires judging. And judging requires the ability to truly understand and process the arguments, positions, and feelings presented by the parties. Judging, in other words, is an exercise in empathy, and judges simply cannot perform their functions without it. As Colby persuasively shows, our legal, political, and academic discourse about courts and judicial decisionmaking will be better served if everyone understands this.


How Should Judges Spend Their Time?

Marin K. Levy, Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across Cases in the Federal Courts of Appeals, 81 Geo. Wash. L. Rev. 401 (2013), available at SSRN.

The federal appellate caseload has grown from 73 cases per active judgeship in 1950 to 330 cases today. Scholars have criticized the heavy caseload and the techniques that appellate judges have developed to manage it, such as using staff attorneys and issuing unpublished opinions. Such techniques, they have argued, create a “bifurcated” system of justice with a “separate and unequal” track for certain types of cases, such as immigration cases, cases with pro se parties, social security cases, and certain types of criminal cases. They advocate systemic reforms that would alleviate this disparate treatment.

In her recent article, Judicial Attention as a Scarce Resource, Marin Levy undertakes a different task from that of scholars calling for systemic reform. While she does not necessarily dispute the need for such reform, she takes as her premise that, in the short term, the judicial system will remain relatively unchanged. Her project, then, is to examine how well judges are working within current constraints and to consider how their work might be improved.

To that end, Levy’s thoughtful and pragmatic article applies resource allocation theory to judicial caseloads. She characterizes judicial attention as a scarce resource and suggests that we should evaluate whether that resource is allocated in a desirable way by examining the judicial “outputs” of error correction and law development. While acknowledging other possible judicial outputs, such as cost containment and institutional legitimacy, Levy sets these to one side because they are less widely accepted by judges and scholars.

Examining the appellate courts’ case management practices, Levy concludes that the courts, by and large, do a pretty good job of maximizing the two outputs of error correction and law development given the reality of scarce attentional resources. Regarding the error correction output, she concludes that the categories of cases typically routed to a nonargument track are either less likely to contain errors (for example, because they have already been reviewed by a body with expertise, such as the Board of Immigration Appeals) or are more likely to be frivolous in the first place (for example, many pro se cases). And with respect to the law development output, she explains that the categories of cases least likely to require law development are those in which the law is already relatively clear and which tend not to present novel issues. Perhaps unsurprisingly, the categories of cases that require less attention to maximize each output tend to overlap.

There is a great deal to admire in Levy’s work. The lens of resource allocation, coupled with the notion of judicial attention as a scarce resource, contributes significantly to the understanding of the functioning of the judiciary. Levy’s careful cataloging of the factors that make cases worthy of enhanced or diminished review offers a plausible defense of the way that federal appellate judges currently spend their time. She is appropriately modest about this conclusion, acknowledging that it rests on certain assumptions and suggesting ways that those assumptions might be tested. And the article’s conclusion offers a balanced and pragmatic discussion of how judges might improve their review of cases that, realistically, will receive less attention under current conditions.

Levy’s resource allocation model provides a useful foundation for a more nuanced examination of the work of appellate courts. Does it matter, for example, if the appellate outputs are not neatly segregable from one another? A court that goes out of its way to correct a perceived error may actually develop bad law—we are all familiar with the truism that hard cases make bad law—and a court that develops bad law may in turn be perceived as an illegitimate institution. Further refinement of Levy’s model might take into account some of the ways in which these outputs overlap, at some times reinforcing one another’s effects and at others negating those effects.

We might also wish to take more explicit measures to ensure that focusing on resource allocation does not mask other systemic problems. Consider the much-criticized backlog of immigration cases, many of which, scholars have argued, deal with laws that are unwise, disparately enforced, or both. If the federal courts allocate fewer attentional resources to immigration cases—perhaps appropriately, under Levy’s model—they may fail to make the public aware of both the type and magnitude of “bad” immigration law. Indeed, the problem extends further: the buffer of staff attorneys and the insulation from public scrutiny that unpublished opinions provide may make it easier for judges themselves to ignore the concerns that disfavored categories of cases tend to raise. Ideally, the resource allocation model would expose rather than hide these concerns. Perhaps the model could be expanded to recognize that an additional valuable output of appellate courts is to inform the public about such systemic problems.

These preliminary thoughts as to how Levy’s model might be refined are really a testament to the overall value of the model itself. The gift of her article is that it gives us a way to think about how judicial output should look now, in our current, imperfect system. In so doing, she lays the groundwork for fruitful exploration of these important and timely issues, while at the same time leaving open the door for us to think about what we might wish to keep from the current system as, perhaps, we evolve toward a better one.


Back to the Future

Robert L. Jones, Lessons from a Lost Constitution, 27 J.L. & Pol. 459 (2012), available at SSRN.

Ian Ayres and Joe Bankman begin one of their articles with a Dilbert cartoon (reproduced below). They use the cartoon to show that firm insiders may use nonpublic information to trade not only their own company stock, but the stock of competitors, rivals, and suppliers. Ayres and Bankman ultimately conclude that insider trading of such stock substitutes is inefficient and should be prohibited, but they acknowledge the argument that insider trading may “produce more accurate stock prices.” Presumably one could learn a lot about a company by paying attention to how its insiders treat substitutes for the company’s stock.


DILBERT ©1996 Scott Adams. Used By permission of UNIVERSAL UCLICK. All rights reserved.

Robert L. Jones has written an excellent article that examines one insider’s views of a substitute for judicial review under the Constitution–James Madison, who is arguably the “father” of the Constitution. (P. 5.) The substitute was a proposed Council of Revision, endorsed by Madison as part of the Virginia Plan. It was ultimately rejected at the Constitutional Convention, but Jones argues that one can learn a great deal about our current practice of judicial review by examining the reasons Madison preferred it over the type of judicial review we have today.

As proposed, the Council of Revision granted a qualified veto over all legislation passed by Congress to the President and “a convenient number of the National Judiciary,” who would all come from the Supreme Court. (P. 28.) The veto was qualified because a supermajority of Congress could override it. A Council of Revision was by no means unprecedented. New York had established one at the time of the Convention, and the proposed Council was most likely modeled on the British Privy Council. (P. 28 n.105.) The proposed Council was not limited to reviewing the constitutionality of enacted legislation; as Jones makes clear, Madison contemplated that it would veto legislation on both policy and constitutional grounds.

Why did Madison prefer a Council of Revision to judicial review? Here Jones notes the distinction that Madison made between “democratic legitimacy on the one hand and rationality and deliberation on the other.” (P. 20.) Like his contemporaries, Madison was concerned with the costs of rule by popular sentiment. In his view, the main defect of the Articles of Confederation was that it allowed the states to engage in conduct that, while popular, produced self-defeating results. Thus, he included and endorsed features in the Constitution that checked popular sentiment, such as establishing a representative government where the representatives would, ideally, “lead and shape, rather than simply slavishly follow, popular sentiment.” (Id.) Moreover, and as made famous by Federalist No. 10, Madison believed that the vast extent of the United States would make it hard for any one faction to come to power and subordinate the interests of others.

Nevertheless, Madison was concerned with the “vortex” of power that Congress could become, and he was skeptical that a veto by the president alone would ever be exercised. He thus concluded that granting a qualified veto to two branches – the executive and some portion of the judiciary – would make it easier for both together to wield a veto that would be seen as legitimate by the people.

When the Constitutional Convention ultimately rejected the Council, Madison threw his support behind a Bill of Rights to supplement judicial review. This seems odd because Madison had previously opposed a Bill of Rights out of a fear that the Rights would be unduly narrowed through judicial interpretation.

Why did he change his mind? There are a number of cynical reasons proposed by historians – to circumvent more radical changes proposed by the antifederalists or to win a Congressional seat. But Jones argues that Madison saw the Bill of Rights as a way to lend popular support to judicial review. Madison surmised that a Bill of Rights would be internalized by the people, who would then view the judiciary as “the guardian of those rights.” (P. 99.) Although Madison did not believe that judicial review coupled with a Bill of Rights would gain the same popular support as a Council of Revision, he was enough of a pragmatist to realize that it was the best he could do.

This is a wonderful article and a joy to read. Its best feature, in my view, is how Jones uses this history of Madison’s failed attempt to enact a Council of Revision. One could imagine a legal scholar using this history to support an originalist argument about the nature of judicial review. But Jones avoids this trap, perhaps recognizing that the view of one founding father (no matter how important) is probably too slender a reed to rest any inferences about what all the founding fathers intended.

Instead, Jones considers the normative lessons of Madison’s failed attempt. Jones suggests that we could learn a great deal from Madison’s pragmatic concerns about democracy. The biggest lesson is that we should not equate democracy with majoritarian rule. Madison’s proposed Council of Revision, which would have been able to veto legislation on policy grounds, demonstrates that Madison did not view the judiciary as providing an antidemocratic check. Instead, he viewed the judiciary as performing a crucial democratic function by introducing deliberation and rationality to lawmaking, separated from the passions that drive normal politics. The judiciary was the superego to the legislature’s id. In fact, Madison envisioned that the id still could trump the superego because the Council’s veto could be overturned by a supermajority in Congress.

Moreover, and as Jones discusses, Madison’s proposal suggests that the countermajoritarian difficulty should mean something different entirely. Madison did not believe that the judiciary lacked a democratic justification to make decisions that countered the majority because, again, he did not equate democracy with majoritarian rule. Instead, he was concerned with the all-too-human side of judging – that a judge will be too weak-willed to stand up to public sentiment, no matter how wrongheaded that sentiment may be. For Madison, the difficulty was setting up a governmental structure in which the majority will not riot when judges do their job. This difficulty is not unlike the difficulty of getting yourself to stick to a diet when confronted with a donut. Self-governance, both at an individual level and at a societal level, requires one to think of clever ways to get oneself to do the right thing.

Certainly some of Madison’s views have not survived the test of time. Congress is the least popular branch, not the most popular. But Madison was probably right about the problem of getting the American people to eat their vegetables, so to speak, and it would be wise for us to take these concerns more seriously. If anything, Jones’ article reminds us of the importance of listening to our elders. They know a thing or two.