Into Litigation’s Black Hole: A Cosmic Solution

How many federal courts scholars can identify what is meant by the litigation “black hole?” If you know the answer to this question, chances are you teach mass tort litigation or worked on asbestos litigation thirty years ago. And if you want to know what became of that black hole, Judge Eduardo C. Robreno of the Eastern District of Pennsylvania offers some answers.

Asbestos litigation was a seminal mass tort litigation and its procedural history provides an interesting parable about dispute resolution modalities. The flood of asbestos litigation began in the late 1970s and for approximately twenty years the Judicial Panel on Multidistrict Litigation resisted creation of an asbestos MDL. After the Judicial Conference issued a report on the nationwide asbestos litigation crisis, the Panel relented and finally created asbestos MDL-875 in 1991, docketed in the Eastern District of Pennsylvania.

The famous “black hole” refers to the contention by attorneys that the creation of the MDL—and the transfer of their cases to the MDL court—would send their asbestos cases into a litigation black hole, and that their cases would disappear forever. In issuing its order, the MDL panel took pains to assure lawyers that the MDL would not do so.

The asbestos MDL played a major role in the development of mass tort litigation, settlement classes, and Rule 23. Under the MDL umbrella, in 1993 attorneys consummated the first nationwide Rule 23(b)(3) asbestos settlement class. In 1997, the Supreme Court repudiated this settlement in Amchem Products v. Windsor based on lack of adequacy, typicality, and commonality. In 1999, the Court again repudiated a nationwide asbestos class settlement—this time certified under Rule 23(b)(1)(B)—in Ortiz v. Fibreboard Corp.

A lingering question concerns the fate of the asbestos MDL after these failed attempts at global peace. What happened to the asbestos MDL, and how were those asbestos cases resolved? Did the MDL fulfill the prophecy of a litigation black hole, or is there another story worth knowing? Judge Robreno offers some interesting and noteworthy answers.

Judge Robreno inherited supervision of the asbestos MDL docket in October 2008. In ensuing years, he developed a case management plan to resolve all the asbestos cases on the MDL docket. Significantly, the program he fashioned resolved claims on an individual, case-by-case basis. He concluded that aggregation and consolidation of cases had failed, and the appropriate approach to resolve the massive docket was to disaggregate the cases. The success of this judicially managed program gives pause to those who contend that mass tort litigation involving thousands of claimants cannot be resolved on an individualized basis.          

After organizing court personnel and setting up a communications system, Judge Robreno implemented a six step process to resolve each case: (1) transfer of all outstanding federal asbestos cases to the Eastern District of Pennsylvania, (2) severance of cases into single-plaintiff motions, (3) plaintiffs’ submission of medical reports, (4) institution of show cause hearings, (5) scheduling orders for discovery, and (6) summary judgment motions. Judge Robreno reports that cases transferred and consolidated in MDL-875 were rarely remanded to the originating court.

The results of this program are impressive. He reports that since 2006, 186,524 cases were transferred to MDL-875. Of those cases, 183,545 have been resolved, leaving only 2,979 cases on the MDL docket.

Judge Robreno offers important lessons from his experience managing the largest and oldest personal injury mass tort litigation. First, he questions whether, in retrospect, a national MDL was necessary to handle the asbestos litigation. Second, he opines that unless courts establish a “toll gate” at the entrance to litigation, non-meritorious cases will clog the process. Therefore, he urges courts to establish early procedures by which each plaintiff must either provide facts to support their claims by expert diagnostic reports or risk dismissal. Third, he recommends that each case be disaggregated into the lowest common denominator, separating each claim against each defendant to stand on its own merits. Accordingly, he contends that any trial should not be bifurcated or trifurcated.

Judge Robreno’s experience in resolving this massive asbestos docket has made him chary of aggregative solutions to mass injury litigation, which he characterizes as falsely waiting for “Superman.” The alternative, however, requires a dedicated commitment of judicial resources to implement a program such as the one he designed. Once such a system is established, it is crucial to allow lawyers to be lawyers and judges to be judges. The judge must make the roadmap for litigation as clear as possible, and then make timely rulings to guide litigants. Judge Robreno’s one-plaintiff-one-claim approach bolsters litigants’ confidence in the process, by avoiding both the perception by plaintiffs that aggregation is designed to “clean house” by dismissing cases and the perception by defendants that it is designed to coerce settlements.

It is satisfying to learn the dénouement of the asbestos story that remained in the aftermath of the Amchem and Ortiz decisions. Similar to the resolution of a litigation whodunit, Judge Robreno’s detailed article provides an excellent history of this chapter of asbestos litigation. Thus we now learn that the litigation black hole never materialized to sweep away and forever vanish individual asbestos claims brought into that MDL.

Cite as: Linda Mullenix, Into Litigation’s Black Hole: A Cosmic Solution, JOTWELL (March 31, 2015) (reviewing Hon. Eduardo C. Robreno, The Federal Asbestos Product Liability Multidistrict Litigation (MDL-875): Black Hole or New Paradigm?, 23 Widener L.J. 97 (2013)),

The Settler-in-Chief

Adam Zimmerman, Presidential Settlements, 163 U. Pa. L. Rev. __ (forthcoming 2015), available at SSRN.

In his famous, unfinished article The Forms and Limits of Adjudication, Lon Fuller posited that certain types of claims—he called them “polycentric” disputes— were incapable of resolution through adjudication. In these disputes the number of interested parties is so large and the potential ramifications of the dispute so vast that it is impossible for each person affected by the decision to participate in the decision-making process through proofs and reasoned arguments—participation which, Fuller argued, was the sine qua non of adjudication. According to Fuller, the binary nature of a second decision-making mechanism—voting—also made elections a poor means for resolving mass disputes, with their multifaceted nuances. Therefore, the only legitimate mechanisms to resolve polycentric disputes were negotiation or managerial direction. One type of dispute that Fuller held out as an exemplar of polycentrism was a labor dispute over wages in a centralized economy: the way in which different levels of increase in wages would have ripple effects across the economy made it unimaginable that a judge or a voter could determine the question of a proper wage.

Of course, Fuller’s claim is contestable, both theoretically and factually. In particular, the rise of complex litigation, which emerged as a significant legal phenomenon after Fuller drafted his article in 1957, has tested the assumption that large-scale disputes cannot be resolved through proofs and reasoned arguments. But the course of complex litigation over the past sixty years has also given Fuller’s thesis some support. Consider, for example, the aggregation techniques that courts in complex disputes have employed: class actions that limit participation rights in return for the promise of adequate representation and MDL proceedings whose bellwether trials are designed to channel most cases into settlement and whose settlement structures take their inspiration from administrative agencies and insurance companies. In each of these, the right of each affected individual to participate through proofs and arguments falls by the wayside. Likewise, some of the “best practices” for resolving aggregate litigation—for instance, providing separate representation for each interest group to prevent conflicts of interest within groups and using statistical sampling to ensure that issues of liability and damages are determined accurately on a macro scale—highlight the difficulty of guaranteeing the individual participation and the individualized assessment of claims that lie at the heart of Fuller’s adjudicatory paradigm.

Fuller’s paradigm casts a long shadow over complex litigation. In recent years courts have seemed especially reluctant to stray too far from the traditional understanding of adjudication that Fuller describes. Courts have declined to head down adventurous doctrinal paths that would facilitate the aggregation of large numbers of cases: think, for instance, of the many cases narrowly construing Federal Rule 23, Wal-Mart’s rejection of the use of trial by statistics, and the increasing judicial resistance to cy pres relief. Whatever the merits of these decisions (and some of them seem to me more defensible than others), convincing a present-day court to use its adjudicatory powers to resolve “polycentric” claims in a single, comprehensive lawsuit is an uphill climb. Yet even if courts are reluctant to adjudicate mass disputes, the disputes themselves continue to proliferate. Predictably, substitute mechanisms have stepped into the breach.

Adam Zimmerman has explored many non-judicial dispute-resolution mechanisms. His latest article turns to another one: presidential settlements, which are deals brokered by the White House that extinguish the legal rights of claimants in favor of an executive-branch compensation system, without judicial involvement or imprimatur. The BP oil spill settlement is perhaps the largest and most recent example. As Zimmerman recognizes, however, presidents have been hammering out similar deals since the earliest days of the Republic. In the past four decades alone, President Carter negotiated, and President Reagan implemented, the Algiers Accords, providing a compensation mechanism for claims arising from the Iranian Revolution; President Clinton engineered a settlement between Holocaust victims and banks that had confiscated Jewish bank accounts; and President George W. Bush brokered a deal between the government of Libya and the victims of the Lockerbie bombing. Over the years presidents have also intervened to resolve labor disputes—a role that calls to mind Fuller’s argument that such disputes are classically polycentric and therefore beyond the legitimate reach of adjudication.

As Zimmerman points out, the president’s role as “settler-in-chief” poses certain practical problems that plague all processes for resolving mass injuries. The first is the lack of representation at the bargaining table for victims or others affected by the dispute; while the president stands in for the victims in the negotiations, the White House’s own political and international agendas make the president a less than faithful agent of the victims. Second and relatedly, presidents may ignore conflicts of interest among claimants. For example, presidential settlements of labor disputes often sacrifice the interests of those entitled to compensation for past harms in favor of those who preferred a better prospective remedy. Similarly, the varying strength of Holocaust survivors’ legal entitlements to the recovery of funds was largely ignored. A third difficulty is assessing the entitlements of individual claimants with accuracy. In the Lockerbie settlement, for instance, each plaintiff received the identical lump-sum award, despite variations in individual injury and damage. Simply put, without effective judicial review of these settlements, the quality of the President’s decision-making and the fairness of the settlement itself remain open to criticism.

These settlements also raise constitutional concerns. As highlighted by the murkiness of the Supreme Court’s opinion in Dames & Moore v. Regan, which upheld the Iranian claims tribunal, the precise boundaries on the president’s Article II power to extinguish claims is uncertain. When the president acts without congressional approval, as is often true with presidential settlements, the legitimacy of the President’s action in compromising private claims depends entirely on the breadth of this power. Whatever the precise scope of that power at a given instant, there is also a fear of the slow but inexorable accretion of power to the president (at the expense of both Congress and the judicial branch); under Justice Jackson’s framework in the Steel Seizure Case, congressional acquiescence to one presidential settlement may implicitly expand the president’s powers in the next. For instance, the BP oil-spill settlement, in which claims were largely based on past harms and did not touch in a substantial way on international relations, seems a step beyond prior settlements that resolved domestic labor disputes or claims arising from the actions of sovereign nations. Presidential settlements raise other separation-of-powers questions. For example, if the power to compromise private claims is indeed one that the president enjoys under Article II, it becomes uncertain whether that power is subject to any limitation except for other constitutional provisions, such as due process. And it is uncertain whether Congress has the ability to regulate or constrain the president’s actions in negotiating these settlements.

With respect to these practical problems, Zimmerman argues that the president should import into the settlement process some of the best practices of complex litigation: ensuring that groups with distinct interests have a voice in shaping the settlement, avoiding conflicts of interest in the bargaining process, and enhancing the accuracy of individual awards through methods such as sampling, bellwether trials, and statistical aggregation. Zimmerman also urges that the president subject the settlement to a process of judicial review, or at least independent review in an Article I court, to ensure its fairness. The problem, however, is how to ensure that a president will adopt measures that constrain presidential discretion and flexibility in brokering a deal. The article suggests—perhaps somewhat optimistically, absent recent examples of presidents having done so—that the president might welcome the importation of these mass-action principles into the process as a means of enhancing the legitimacy of the settlement. The article is more cautious about whether Congress has the power to impose these limits on an unwilling president, although its reading of cases like Youngstown and Dames & Moore is cautiously optimistic that Congress can play such a role in at least some presidential settlements.

Zimmerman’s provocative treatment of these issues brings me back to Fuller’s critique. If voting, adjudication, negotiation, and managerial direction are the principal dispute-resolution mechanisms, presidential settlements are a hybrid of the final two (some managerial direction, some negotiation) with a dash of voting thrown into the mix (given the president’s status as a political actor).1 Zimmerman’s proposal adds to the recipe a pinch of adjudication: participatory rights for those affected, some individualized assessments of the merits of claims, and a neutral observer’s check on the fairness of the outcome. The value of Fuller’s model is to identify possible tools for dispute resolution; the value of Zimmerman’s work is to show that the real world is more complex than models—in other words, every approach to the resolution of mass disputes must rely on a mix of the tools associated with each model if it is to succeed. For Fuller, legitimacy in decision-making derives from the decision-maker’s adherence to the essential form of a decision-making model; for Zimmerman, legitimacy in decision-making is enhanced by blending elements from different models. If a blended approach is right, it becomes important to determine which blend of principles works best for each type of mass dispute and then to establish structures that channel each type of dispute into its best dispute-resolution form.

At the bottom of Zimmerman’s description of presidential settlements is a cautionary tale. For example, could a president, without input from asbestos victims, broker a settlement of all present and future asbestos claims that bars victims from bringing suit and relegates them to a flat payment of $50,000? And if the Article II power exists, is that the best way to conclusively resolve the legal aspect of the asbestos crisis? The first question (one of constitutional power) is related to, but distinct from, the second (one of best practices). Until we figure out what the best practices are and how we can implement them, we invite the president to push the boundaries of Article II power in unprincipled and counterproductive ways.

  1. The dash is quite small, for it is unlikely that many voters would vote for or against a presidential candidate solely because of the candidate’s position on a presidential settlement. []
Cite as: Jay Tidmarsh, The Settler-in-Chief, JOTWELL (March 17, 2015) (reviewing Adam Zimmerman, Presidential Settlements, 163 U. Pa. L. Rev. __ (forthcoming 2015), available at SSRN),

Judicial Competition for Case Filings in Civil Litigation

Daniel Klerman & Greg Reilly, Forum Selling, USC Center for Law and Social Science Research Papers Series No. CLASS14-35, available at SSRN.

Scholars have extensively explored how outcomes in civil litigation can hinge on an adjudicator’s identity, institutional affiliation, and location. Judges bring varying perspectives and experiences to the bench that may color their assessment of factual contentions and legal arguments. Jurisdictions have idiosyncratic rules and customs. Geography often imposes burdensome participation costs, unique local norms, and distinct jury pools. Different courts therefore might reach inconsistent conclusions in otherwise identical cases. Lawyers pay close attention to these differences and try to exploit them using tactics that are often derisively described as “forum shopping.”

Although lawyers are active shoppers, observers are loath to think of judges as active sellers. We expect zealous lawyers in an adversarial system to exploit available advantages. But we take comfort in conceiving of those advantages as arising from inevitable variations among courts rather than through deliberate competition among judges. From this perspective, judges should be agnostic about where cases are filed (assuming filings comply with applicable laws), even as they operate within a system in which forum choice matters to litigants. If judges are agnostic, then the term “forum shopping” would be misleading given the absence of a market. Lawyers would be shopping for courts only in the sense that birds shop for trees in which to build nests. Trees might benefit from hosting birds and may be well-adapted to attract them, but a tree’s allure is not a product of conscious choices amenable to criticism and reconsideration.

But if lawyers react to incentives that judges deliberately provide, then the shopping metaphor would be more potent and the judicial competition potentially more unseemly. The existence of judicial sellers enticing party buyers would raise at least two difficult questions. First, what is the normative justification for allowing a judge’s desire to increase local filings to influence judicial decisionmaking? Second, what corrective measures are necessary to prevent or mitigate abuse? These are among the many questions that Daniel Klerman and Greg Reilly explore in their thoughtful new manuscript Forum Selling.

Klerman and Reilly analyze competition for civil case filings through four case studies of judicial behavior (as well as other examples of non-judicial behavior). The examples run the gamut from state to federal, domestic to foreign, and modern to historical. Each has received prior academic scrutiny, but linking them illuminates broader patterns. The case studies explore: (1) local procedural rules and practices that have helped attract approximately 28% of this country’s recent patent suits to the U.S. District Court for the Eastern District of Texas; (2) state courts that were “magnets” for a large volume of class action and mass tort litigation despite being ill-equipped to handle such complex cases and allegedly disinclined to do so fairly; (3) the District of Delaware’s effort to lure bankruptcy filings by adopting practices favorable to debtors; and (4) drawing from Klerman’s prior work, the competition for filings among England’s three common law courts in the seventeenth and eighteenth centuries, which may have inspired judges to make the common law friendlier to plaintiffs. The article focuses primarily on patent litigation, but uses the other examples to highlight common causes, features, and consequences of “forum selling.”

Viewing the case studies as manifestations of a common phenomenon leads Klerman and Reilly to several insights. First, they suggest that forum selling exists, even if it operates subtly and masquerades as innocent procedural experimentation or implementation of ambiguous texts. Courts can manipulate forum choice in their favor through ostensibly innocuous means, such as by controlling the discovery schedule, minimizing opportunities for pre-trial merits determinations, and interpreting procedural rules either strictly (e.g., to limit transfer out of the forum) or loosely (e.g., to facilitate class certification). Appellate courts could in theory police this maneuvering, but in practice these non-final non-merits rulings tend to evade appellate review, especially if they induce a settlement.

Second, the authors suggest that forum selling is attractive to judges for several recurring reasons. For example, judges may want to enhance their own or their court’s prestige by presiding over high status cases, augment their court’s budget (and resources) due to a higher caseload, or support the local bar by attracting business. Case filings can also strengthen economies in rural areas when visiting litigants eat, shop, work, and sleep locally. (The authors report that a Fairfield Inn near an East Texas patent forum catered to the influx of lawyers by subscribing to Pacer.)

Third, the case studies indicate that competition for filings leads courts to skew rules and customs in favor of plaintiffs because plaintiffs usually decide where to file (absent a contractually specified forum). Thus, while competition could in theory inspire courts to make themselves more attractive to all parties, Klerman and Reilly contend that in practice competitive courts focus on the parties that they can directly influence.

Fourth, a common feature of each example is that forum selection rules tolerate litigating a particular suit in multiple courts. For example, constitutional constraints on personal jurisdiction and statutory criteria for venue often give plaintiffs choices about where to sue limited only by malleable standards. This flexibility enables forum shopping, which in turn enables forum selling. The authors suggest tightening limits on jurisdiction and venue—or facilitating transfer and removal—to immunize defendants from entrepreneurial fora.

The article’s unsettling examples of courts appearing to offer plaintiff-friendly (and thus defendant-hostile) rules might tempt readers into thinking that all choices that could be characterized as forum selling are inherently undesirable. But Klerman and Reilly are careful to avoid sweeping normative conclusions based on limited empirical evidence.

Instead, their analysis of forum selling raises a fascinating question for further study: how should commentators decide whether particular competitive strategies are appropriate? That question is difficult because courts routinely must make discretionary choices about how best to administer justice. Some choices—even if made for unassailable reasons—will render particular courts more attractive to certain litigants. The fact that one forum is more enticing than another is therefore not by itself evidence of any questionable decisionmaking by courts. Forum selling may spur forum shopping, but forum shopping can occur even without a dubious sales pitch.

Commentators could adopt at least two approaches to challenging judicial behavior that incentivizes forum shopping. First, judicially driven forum shopping might be suspect when the court intentionally seeks to attract filings. This skepticism is plausible because judicial self-aggrandizement seems indecorous and may intrude on the prerogatives of coordinate branches of government to establish and implement regulatory priorities. Yet the prospect of courts benefitting by improving their performance is not necessarily undesirable, depending on what the courts are doing. For example, if courts attract plaintiffs by improving their expertise and striving for neutrality and fairness, then the benefit to a court from increased filings seems ancillary to the legitimate benefits to litigants. (Even the losing party benefits by receiving a more meaningful day in court compared to what it would have received in a less expert or less fair forum.) Second, commentators might question forum selling when the underlying choices either exceed the scope of judicial authority or produce suboptimal results. For example, courts might render themselves attractive for unsavory reasons (such as bias), make choices that are better left to the legislature, or distort filing incentives to the point of undermining the legitimate interests of competing fora.

This final, context-sensitive approach to assessing forum selling is attractive, but raises several questions. Commentators must know how to define the proper judicial role before deciding that forum selling exceeds it. They also need a theory of what counts as a legitimate benefit of a procedural rule, and what counts as a troubling cost, to determine if choices that make the forum more attractive produce acceptable outcomes for the parties. And they need a theory about the proper allocation of jurisdiction among coordinate fora in a federal system to decide if fora that lose filings have a legitimate grievance against fora that attract filings.

Forum selling thus implicates fundamental questions about federalism and civil procedure that scholars have been studying for centuries. Klerman and Reilly’s careful and thoughtful analysis adds a helpful dimension to these questions that is grist for further study.

Cite as: Allan Erbsen, Judicial Competition for Case Filings in Civil Litigation, JOTWELL (February 25, 2015) (reviewing Daniel Klerman & Greg Reilly, Forum Selling, USC Center for Law and Social Science Research Papers Series No. CLASS14-35, available at SSRN),

Expanding Our Understanding of Narrowing Precedent

Richard M. Re, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861 (2014).

Richard Re’s recent essay, Narrowing Precedent in the Supreme Court, identifies and examines the judicial technique of narrowing precedent as a practice that is meaningfully distinct from other ways of dealing with precedent, such as distinguishing, following, and overruling. The essay is gracefully written, carefully argued, and generative of insights and additional arguments.

In Re’s taxonomy of how courts use precedent, narrowing means “not applying a precedent when it is best read to apply.” Thus understood, narrowing contrasts both with following precedent (“applying a precedent when it is best read to apply”) and also with distinguishing precedent (“not applying a precedent where it is best read not to apply”). According to Re, narrowing is also distinct from overruling. Unlike the overruled precedent, the narrowed precedent remains available for future application, though within a narrower compass.

Everyone who has argued about the application of precedent in one form or another should already understand that courts often employ this “narrowing” technique. But by differentiating this technique from both “overruling” and “distinguishing,” Re helpfully brings greater analytical clarity to discussions of the judicial treatment of precedent. By “hon[ing] the customary vocabulary that lawyers and judges use when discussing case law,” Re convincingly shows that judicial narrowing at the Supreme Court is common, as well as often (though not always) legitimate. Re’s analysis also rescues some of the Roberts Court’s more controversial narrowing decisions from the charge of “stealth overruling.”

Narrowing Precedent both prompts and channels careful thinking about the categories that we use for discussing how courts deal with judicial dispositions of prior cases. The essay invites further exploration of the complex legal relations that traffic under the familiar labels that judges and lawyers casually deploy in describing what they are doing with precedent.

One way of taking up that invitation is to begin with a question about why we might want to add “narrowing” to our working taxonomy of how courts deal with precedent. Even if Re is right to insist that there is something distinct about “narrowing,” in comparison with “overruling” and “distinguishing,” might it also be the case that every instance of narrowing can nonetheless still be described using only these two more familiar categories?

Take, for instance, Re’s discussion of the Court’s treatment of Flast v. Cohen, “[o]ne Supreme Court decision [that] has been narrowed more than any other.” When first decided, Flast was thought by many to open up broad areas for taxpayer standing. But Flast’s authorization of taxpayer standing was later narrowed to challenges based on specific constitutional limitations on the taxing and spending power (Richardson), then further narrowed to authorize taxpayer standing only for Establishment Clause challenges to certain legislative actions and expenditures (Valley Forge, Hein), and then narrowed even further to exclude taxpayer standing for Establishment Clause challenges to tax credits (Winn). The first decision or two declining to apply Flast may have been appropriately described as “distinguishing,” but not the entire course of such decisions. It is evident beyond argument that the later decisions changed Flast—they narrowed it—and did not simply leave it in place. But it also seems perfectly natural to describe what the Court has done to Flast as partially overruling it. That is, when the Court has held a different rule to apply in an area previously governed by Flast, it has functionally overruled Flast with respect to a particular set of applications.

Re argues that “[l]egitimate narrowing is the decisional-law analogue to the statutory-law canon of constitutional avoidance.” The analogy holds insofar as both techniques exploit ambiguities to constrain the legal force of one source of legal authority (a precedent or a statute) as a way of giving effect to other legal principles (whether found in other cases or the Constitution or some background source of legal principles). But another, and in some circumstances closer, analogy may be holding a statute partially unconstitutional coupled with statutory severance. After all, as Re puts it elsewhere in the essay, narrowing effects “a partial erasure of decisional law.” Following this insight a bit further might lead one to believe that when narrowing ventures beyond strained distinguishing (akin to constitutional avoidance), it becomes partial overruling (akin to partial unconstitutionality plus severance).

One benefit of recognizing the functional equivalence of narrowing and partial overruling in certain circumstances is to highlight what may be an unduly constricted but pervasive misunderstanding of lower-court freedom to narrow Supreme Court precedent. Re’s essay understandably brackets off implications for vertical stare decisis; assessing the legitimacy of narrowing by lower courts presents different and harder issues than horizontal narrowing. But by showing that narrowing is common and often legitimate at the horizontal level, the essay’s taxonomy at least reveals that it is a mistake to preemptively rule out the possibility of all lower-court narrowing simply by affixing to it the label of partial overruling.

To explore what this might mean for vertical stare decisis, it would be illuminating to run through each of the examples of legitimate narrowing that Re discusses at the Supreme Court level and to inquire whether a lower court would likewise have been free to narrow. That is, would the lower court have complied with governing stare decisis norms by narrowing precedent in the way that the Supreme Court did? If the answer for a given case is “yes,” even though the kind of narrowing that the lower court engaged in could easily be understood as an instance of partial overruling (i.e., overruling with respect to a particular set of potential applications), then the principle that lower courts may not anticipatorily overrule an undermined precedent may have a more confined reach than many think. Take, for example, Hein v. Freedom from Religion Foundation, in which the Supreme Court held that the taxpayer standing authorized by Flast was limited to specific legislative appropriations rather than executive action funded by general discretionary appropriations. This narrowing of Flast could be understood as a partial overruling of it. And yet the line adopted by the governing plurality decision is the very line identified and applied by the district court. While the Seventh Circuit reversed this decision (and itself was later reversed in turn), the discussion throughout was about how best to apply the set of cases in the Flast line rather than about whether the district court or court of appeals had violated some norm of vertical stare decisis. And that is as it should be.

The practical fluidity of the conceptual boundaries between narrowing a precedent, partially overruling a precedent, and figuring out the best application of a set of precedents gives rise to a final observation. The customary way of thinking about how particular judicial decisions change the content of the law is in terms of their effect on particular legal materials like a precedent or a statute, and usually in terms of subtraction. Narrowing Precedent sharpens this way of thinking. But using Re’s conceptual tools can reveal a different frame altogether, one that is consistent with Re’s even while describing changes in the content of the law in a precisely opposite manner.

Re’s central concept is the idea of the best reading of a precedent. In his taxonomy, the mirror image of narrowing (“not applying a precedent, even though the precedent is best read to apply”) is extending (“applying a precedent where it is not best read to apply”). The reason that both narrowing and extending can be legitimate practices is that precedents are never best read in isolation from all the other relevant legal materials in a case. The inquiry in every case is what the court has added or should add to the law going forward; only sometimes does this also involve the metaphorical paring back or cutting out of some particular source of law. And even then, there is no conceptual or legal need to describe that removal in terms of excision rather than displacement. For instance, the narrowing of Flast is simultaneously the extension of the principles and cases that countervail against taxpayer standing.

The distinction and application of precedents is one of the most fundamental functions of lawyers and judges. Narrowing Precedent brings new and welcome clarity to the theoretical understanding of this function. And in the reflection of our newly clarified conceptual lens, we can better understand the jurisprudential truth that the operative rules and standards in a working legal system are not “the statements found in the texts of constitutions, statutes, and judgments or judicial orders, but . . . the propositions which are true, as a matter of law, by reason (a) of the authoritative utterance of those statements taken with (b) the bearing on those utterances and statements (and on the propositions those utterances were intended to make valid law) of the legal system’s other, already valid propositions.” (4 Collected Essays of John Finnis 18-19). For the illumination it offers, one should approach Re’s essay the way that judges and lawyers should approach the law: Read the whole thing!

Cite as: Kevin C. Walsh, Expanding Our Understanding of Narrowing Precedent, JOTWELL (February 11, 2015) (reviewing Richard M. Re, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861 (2014)),

The Federalism Argument for Judicial Diversity

For the past several years, commentators have discussed the importance of diversity in the federal judiciary. Yet in at least some respects the federal judiciary is becoming less diverse, not more. Consider the current Supreme Court. Five of the justices—Ruth Bader Ginsburg, Antonin Scalia, Samuel Alito, Sonia Sotomayor, and Elena Kagan—are from the Northeast, and two others—Chief Justice John Roberts and Justice Clarence Thomas—went to law school on the East Coast and have spent the vast majority of their professional lives in Washington, D.C. Only Justices Stephen Breyer and Anthony Kennedy, who both grew up in California, are from the West Coast. We have no sitting justice from the Northwest or the Midwest, nor do we have a justice who assumed the bench directly from a position in the South.

To the ongoing conversation about diversity in the federal judiciary, Sharon Rush’s recent article offers an intriguing argument in favor of geographic diversity. She explains that the principles of federalism embedded in Article III favor consideration of geographic diversity in federal judicial appointments. Even the simple structure of the judiciary that we take for granted reflects the concern that different geographical regions are adequately represented: the circuits are designed by geography, each state has at least one federal district court judge, and no district combines multiple states. This organization, Rush persuasively explains, “is partly due to efficiency concerns, but is also a result of federalism and state participation in protecting individual liberties.” While Article III does not require this structure, its concern for federalism explains why the judiciary has been designed as it has.

Indeed, the concern for geographic diversity rooted in federalism is in many instances interpreted to require attention to a judge’s geographical origins. Federal district court judges must live in the state in which they sit: “[i]t would be unimaginable to have a Kansas resident sitting as a federal judge in Nebraska even if the Kansas resident lived closer to the courthouse than the Nebraska resident.” Seats on the courts of appeals are allocated by state, with the requirement that an active circuit judge occupying that seat reside in that state. Again, this organization reveals that principles of federalism give rise to the concern that every state should be adequately represented.

Deeply-rooted doctrines such as diversity jurisdiction likewise reflect a view of individual states as distinct and deserving of unique consideration. One premise of diversity jurisdiction is that a litigant from state A should not have to grapple with the bias of a state judge from state B. Of course, the federal judge would still be from state B, but the litigation would proceed under federal rules and the judge would be at least somewhat shielded from the idiosyncrasies of state B’s judicial system, including the pressures of state judicial elections. As Rush explains in more detail, while in theory Congress could abolish diversity jurisdiction, in practice such a move is unlikely. Our sense that diversity jurisdiction serves valid concerns related to state residency is likely to trump more recent arguments that, for example, it encourages forum-shopping.

After outlining this interesting background about Article III sensitivity to state interests, Rush offers a persuasive and original connection between geographic diversity and the principles of equality that diversity jurisdiction is intended to advance. The policies of diversity require not only a federal forum, but federal decisionmakers reflecting that geographic diversity. She explains: “[B]ecause each state is independently sovereign and has its own identity, the absence of a state resident as an Article III judge on the appellate bench unconstitutionally excludes that state’s right to bring its experiential and fair state-identity bias to the decision-making process.”

An intriguing issue that the piece raises, but does not fully address, is whether geographic diversity enhances the diversity of views on the federal bench independent of the ideological tendencies of various states and regions. Put differently, is it important to have federal judges from the South because the South is on average more conservative and it is important to have conservative judges on the bench? Or is it important to have federal judges from the South because they represent particular concerns that do not map neatly onto either liberal or conservative positions?

As with any interesting scholarship, I would have enjoyed further exploration of a few additional avenues.I would be interested to hear Rush’s thoughts on how various considerations relating to diversity should be ranked—all else equal, is it preferable to appoint a judge from the Northeast who is an underrepresented racial minority, or a white judge who is from a geographically underrepresented area? Likewise, Rush’s discussion of geographic diversity focuses on non-regional courts (such as the Supreme Court) and on the federal judiciary as a whole. I would have enjoyed further discussion of how geographic diversity matters on regional trial and appellate courts, or how we might analyze it differently. Certainly the Eleventh Circuit must include judges from Florida, Georgia, and Alabama, but does it also matter where these judges grew up, attended school, and began legal practice? Finally, a few more concrete examples of how judges from different geographical areas might decide specific kinds of cases differently would help to persuade readers that geographic diversity deserves substantially more attention.

These, however, are minor points. Rush makes a persuasive and original case for geographic diversity on the bench—one that those who already advocate for various forms of diversity should welcome, and one that should enhance the value of diversity for those who think that credentials alone (whatever that means) are the only valid metric. As President Obama, his successors, and other stakeholders weigh prospective nominees to the federal bench, they should think carefully about geographic diversity and the different life experience that in many instances it signifies.

Cite as: Nancy Leong, The Federalism Argument for Judicial Diversity, JOTWELL (January 23, 2015) (reviewing Sharon E. Rush, Federalism, Diversity, Equality, and Article III Judges: Geography, Identity, and Bias, 79 Mo. L. Rev. 119 (2014)),

The Federal Courts Junior Scholars Workshop

This is an unusual entry for JOTWELL, because it presents an event rather than a published work of scholarship. But, I think, it’s appropriate for JOTWELL because the event is indeed something I liked (lots). The Federal Courts Junior Scholars Workshop, now an annual event, is representative of an important recent development in legal scholarship—the proliferation of venues for the presentation of work-in-progress by relatively junior scholars. They supplement faculty-organized research workshops, which typically involve the presentation by one scholar (not always junior) to a group of faculty and students at the host institution, but with few or no other junior scholars in the field present. Faculty-organized research workshops seem to me to operate on a catch-as-catch-can basis: the people in charge of the workshops contact people they know to locate scholars with work far enough along to be worth presenting. And, finally, these workshops are sometimes try-outs for permanent faculty appointments at the host institution.

The newer junior scholars workshops are different. They are usually, though not always, self-organized (the Harvard-Stanford-Yale junior faculty workshop is an exception, to which I’ll return) by younger scholars in the field. They seek submissions, usually abstracts, for the longer papers that will be presented at the workshop. My guess is that these workshops in their early years may not be all that selective, but as each workshop becomes established selectivity increases. These workshops have multiple purposes. First, at least in self-understanding and advertising, is giving junior scholars the opportunity to present their work before it is finished, to an informed audience whose comments might improve its quality. This is enhanced by the presence of senior faculty in the field as commenters. The senior faculty can sometimes become (unexpected) mentors for the junior faculty, and their commitment of time suggests that they might be available as outside reviewers in tenure and promotion processes. And, of course, the events build a community of junior faculty members in the field, particularly important to a junior faculty member who may be the only scholar in her field at her home institution. The host institution, which has to provide at least a modest subsidy for the workshop, gets some visibility in the legal academy as well. (This has some implications for issues of design, as I’ll note.)

Designing these workshops presents some interesting problems.

(1) Timing: Ideally the works presented will be far enough along to support an interesting discussion, but not at a stage where modifications are unlikely to occur. This suggests to me that there ought to be a presumption against presentation of work already accepted for publication, although there are tricky issues associated with the time gap between the submission of proposals for the workshop and the workshop’s date: when abstracts are submitted, the piece might not have an acceptance but will have one by the time the workshop occurs. Workshops probably should occur in the fall—after summer research time has produced a substantial draft, which can be modified for submission when the February window opens—and the spring, in preparation for summer research and submission during the August submission cycle (until that cycle disappears, as seems to be occurring).

(2) Participants: This may be a quite delicate issue. It implicates issues of subsidy and hierarchy. In my view, subsidizing “upward” in the hierarchy of law schools generally makes little sense. Junior scholars at highly resourced institutions probably get enough exposure for their work from their home institutions and in “ordinary” faculty workshops elsewhere. When hosted by a highly resourced institution, subsidies to scholars from other similarly resourced institutions operate as cross-subsidies, and it’s not clear why, for example, Harvard or Yale should subsidize the scholarly work of a junior faculty member at Columbia or Chicago. (An upward subsidy for the senior scholars is almost inevitable, given their role in these workshops). The only argument I can see for an upward subsidy for junior scholars is that the host institution can get some reputational credit for hosting, but that’s offset by the fact that junior scholars can’t really spread the word all that effectively precisely because they are junior (and probably don’t understand, as some senior scholars do, the importance of spreading the word). On the other hand, from the point of view of the workshop’s organizers, making decisions based on hierarchy is likely to be pretty distasteful. Here a rule like “not accepted for publication” might be helpful as a rough proxy (on the theory that law reviews are more likely to accept submissions from junior scholars at high ranking schools more quickly than they accept submissions from other scholars).

Now, on to the substance of the recent Federal Courts Junior Scholars Workshop, held at—here goes the reputational crediting—the University of Georgia Law School. My first observation is about the marketing of articles to law reviews, and has several components.

(1) There are an astonishing number of gaps in the literature. One would have thought that most issues in a field as well ploughed as federal courts would have received some substantial treatment, leaving only interstices to be filled. But no, there are apparently a lot of real gaps. I hope the ironic tone here comes across. Junior scholars seeking to place their articles have to persuade law review articles editors that the pieces they are submitting are worth publishing, and what’s more worth publishing than an article that fills an important gap? (This calls to mind the classic—though perhaps apocryphal—book review that began, “This book fills a much-needed gap in the literature.”)

(2) My regular hobby horse: the roadmap paragraph. After reading an article’s abstract, table of contents, and several paragraphs or pages of introductory comments, does anyone really read the roadmap paragraph? There’s an obvious collective action problem here—no one, particularly no junior faculty member, has an incentive to be the first mover in resisting the law review’s importuning to include a roadmap paragraph. Perhaps once law reviews convert to all digital publication, articles will have a hyperlink that reads “Roadmap,” which only those who really want a roadmap will click.

(3) The distinctive Part I, the review of the case law and literature on the problem. Almost everyone who reads a law review article on a specific topic knows the material reviewed in Part I, and wants to find out what the author has to contribute. “Almost everyone,” though, and the exceptions include law review articles editors. Part I typically discusses at least some matters that they are familiar with from their introductory classes, and they use that knowledge to make a preliminary judgment that the article’s author knows what he or she is talking about. They can’t do that with Parts II and III, which deal with the details of the distinctive problem. Here, too, hyperlinking might work—or simply deletion of Part I after acceptance (something that in principle law review editors shouldn’t object to, because the informational function of Part I has been fully performed at that point).

My second set of observations goes, finally, to the specifics of the scholarship exhibited in the junior scholars’ papers.

(1) To a quite striking extent, the scholarship in federal courts appears to be the last redoubt for defenders of the position that law is pretty much exclusively a matter of craft. Federal courts questions appear simply to have right and wrong answers, and judges either get the answers right or wrong. Mark Kelman’s line about the federal courts course he took at Harvard comes to mind. Roughly: The first or second time you deal with whether a result comports with the proper allocation of decisional authority between federal courts and state courts, or between the courts and legislatures, it’s sort of interesting, but after that it’s an effing oppression.

Kelman’s comment, with which I basically agree, reflects a certain disdain for “mere” doctrinal scholarship. The scare quotes indicate some of the difficulties. In other fields, the question of whether there can be “mere” doctrinal scholarship is highly contested. When a scholar asks whether a court misinterpreted the precedent on which it relied, for example, some other scholars will respond not that the interpretation was correct, but that the very notion of misinterpreting a precedent rests on interesting and contested jurisprudential assumptions. Not so, it seems from the workshop papers, for federal courts scholarship. Purely doctrinal work dominated the sessions.

I think that fact raises important and delicate questions about the tenure process and the hierarchy of law schools. As to tenure: it’s simply a lot easier for a junior scholar to do purely doctrinal research than to do historically informed scholarship or empirical work. The materials are readily at hand, and the apprenticeship of junior scholars in the field of federal courts tends to have been in clerkships and legal practice. Gearing up to do something other than doctrinal scholarship would take time as the tenure clock ticks.

As to hierarchy: I have a strong sense that as one looks higher up in the hierarchy of law schools, one finds increasing disdain for purely doctrinal scholarship. At best, doing doctrinal scholarship well is regarded (at the higher tier schools) as something like a pianist’s finger exercises – something a good scholar has to be able to do, but not part of the performance repertoire on which reputations are built. At worst, doctrinal scholarship is disparaged as something any reasonably good third year law student can do well. (I think it may be worth an aside that I did some pure doctrinal scholarship pre-tenure at the University of Wisconsin Law School, and did have to “offset” that by presenting other, nondoctrinal work as part of my tenure file. That was about forty years ago, but I’m not sure that things have changed substantially.)

This fact, if it is one, has implications for designing a good junior faculty workshop. For reasons I’ve mentioned, getting senior commenters from higher-tier law schools is an important part of the design. But the hosts have to be careful to pick commenters from those schools who are willing to engage seriously with purely doctrinal scholarship. I won’t name names, but I could compile a list of people not to invite as senior commenters, on just this ground—their lack of sympathy for the enterprise of doctrinal scholarship would severely limit the contribution they can make to improving the papers presented at the workshop.

(2) Relatedly, even putting aside the articles that treat the subject as one of craft and nothing more, there are only occasional gestures in the direction of discussion of the policies underlying alternative allocations of authority. Authors seem to have a checklist of “legal process” type considerations: state courts are good at this but not that, federal courts are good at that and not this, and here’s how this and that play out in this context. But there’s relatively little engagement with the policy issues at any reasonably fine-grained level.

(3) I found relatively little sensitivity to “real” (rather than, as one article put it, “artificial”) legal history (I suggested that “fairy tale” would be a better term than “artificial history”), to historically informed scholarship about the course of U.S. political development, or to formal political science about differing institutional characteristics. A decision rendered in 1884 and not formally overruled or displaced by statute has just as much weight in the analysis as a case decided in 2008. I can understand why a few articles would take that position; it’s a messy scholarly world out there. But I was struck at the near complete absence of historical sensitivity in the package of papers taken as a whole—a few mentions of the conservative turn since the 1970s, and that’s about it. As I was preparing this submission the newsletter for the Federal Courts Section of the AALS landed in my e-mail. The Section’s session at the AALS meeting in January will be about history in federal courts scholarship, but the real topic is the proper role of originalism in that scholarship. That doesn’t historicize federal courts scholarship in the way that scholarship in other public law fields has been historicized. I don’t think that this feature of the workshop results from the fact that these are articles by junior scholars; rather, it seems to me that it probably reflects the way most scholars in the field think of their subject, which returns me to the “craft” point made earlier.

A reader of a draft of this JOTWELL article found it difficult to understand why I liked the workshop a lot, given the critical comments I have offered on the articles. I liked the workshop a lot because the papers were in general pretty interesting, within the domain they defined for themselves (to be clear, I like well-executed doctrinal scholarship), because I enjoyed meeting a bunch of younger people who I probably wouldn’t have run across anywhere else, and because the spirit in the room was high and engaging. That’s quite a lot, and worth celebrating.

Cite as Mark Tushnet, The Federal Courts Junior Scholars Workshop, JOTWELL (Jan. 9, 2015),

Federal Causes of Action and Everything that Follows

John F. Preis, How Federal Causes of Action Relate to Rights, Remedies and Jurisdiction, 67 Fla. L. Rev. __ (forthcoming 2015, available at SSRN).

“Cause of action” is a ubiquitous phrase in American law. Plaintiffs plead causes of action every day. Justice Scalia admonishes the courts never to infer them from statutory or constitutional rights. Justice Holmes tells us that federal question jurisdiction depends upon them. Justice Brennan scolds us never to conflate them with choice of remedy. But what, precisely, does cause of action mean? And equally important, how does cause of action interact with the concepts of rights, jurisdiction, and remedies? Professor John Preis takes up these questions in his latest article.

If you are a consumer of federal courts or procedure scholarship, Preis’ piece is a must read. To be sure, these concepts—cause of action, right, jurisdiction, and remedy—have been the topic of much past scholarship. These past pieces, however, tend to focus on cause of action in just one context, such as how cause of action relates to jurisdiction. Preis puts this myopic focus aside and aims to understand how the federal courts use cause of action across the board, providing both a detailed historical account of the concept and an analytically crisp contemporary treatment. But even if you are not a proceduralist, you need to read Preis’ article for its innovative approach to scholarly writing. While Preis begins his piece in the standard manner (“In part I, I argue X and in part II, I contend Y.”), he ends the piece not by simply imploring the Court to adopt his views. Instead, Preis concludes with mock Supreme Court slip opinions—he even switches to New Century Schoolbook font—that incorporate his positions. Seldom is a piece of scholarship both substantively important and rhetorically novel.

Preis begins the piece with ancient English common law, where the concepts of right (or what was often referred to as the “primary right” or the “rule of decision”) and cause of action (or what was sometimes referred to as “remedial right” or a “right of action”) were thought to be immutably linked within the parameters of the old writ system. One did not exist without the other. Examples abound even after the common law crossed the Atlantic to the United States. Marbury v. Madison, for instance, held that “it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.” But by the end of the twentieth century, the federal courts, largely reacting to statutory innovations and the administrative state, began to differentiate between causes of action, rights, remedies and jurisdiction. Preis thus defines the contemporary notion of cause of action by reference to Davis v. Passman, which held that a cause of action grants the holder the power to enforce a right in court. Preis’ meticulous recounting of cause of action’s historical and contemporary denotations provides a detailed working understanding of the notion, which he puts to good use in several areas.

The Supreme Court, it turns out, uses cause of action just as sloppily as the rest of us do, which leads to unnecessary confusion on a number of issues. Armed with his more refined understanding, Preis argues that the Court errs, by applying mismatched concepts, when it uses cause-of-action jurisprudence to resolve “rights” issues. In short, Scalia’s inferred cause-of-action jurisprudence is wrong. Similarly, the Court errs, at least most of the time, when it applies cause-of-action jurisprudence to federal question subject matter jurisdiction. In short, Justice Holmes’ jurisdictional position is wrong. Finally, because the modern Court tends to link causes of action with specific remedies, the contemporary Court errs when it continues to invoke outdated rulings such as Bell v. Hood’s holding that the “federal courts may use any available remedy to make good the wrong done.” In short, Justice Brennan is wrong to insist that cause of action is analytical prior to remedy. According to Preis, in other words, everyone, from the right to the left, is confused.

I have my quibbles, of course, with some of the nuances of his view. For example, Preis treats sovereign immunity as a matter of cause of action, while I conclude that immunity is a defense with jurisdictional implications. See, e.g., United States v. Interstate Commerce Comm’n, 337 U.S. 426, 462 (1949) (treating immunity as a defense). I also think Preis undervalues the binary nature of successfully bringing a cause of action as opposed to the scalar nature of most damages insofar as this relates to his thesis that the concepts of cause of action and remedy are essentially identical.

Quibbles aside, I think Preis hits the nail on the head. The Court, through sloppy usage of cause of action, has created a host of problems that are readily avoided by more careful deployment of the term.

Most law review articles would stop right there. Not Preis. Instead of just griping about what a mess the Court has made, Preis drafts language to fix it. In three mock opinion sections—readily designed to be cut & pasted by the Court into its next case dealing with causes of action—Preis illustrates precisely how the Court can use cause of action more precisely and avoid past doctrinal headaches.

I’ll be honest with you—I often learn a lot when I read legal scholarship, but seldom do I have fun. By ending his fine piece with the chutzpah to just go ahead and draft the Court’s next opinion, I couldn’t help but smile. I think you will too.

Cite as: Lumen N. Mulligan, Federal Causes of Action and Everything that Follows, JOTWELL (December 11, 2014) (reviewing John F. Preis, How Federal Causes of Action Relate to Rights, Remedies and Jurisdiction, 67 Fla. L. Rev. __ (forthcoming 2015, available at SSRN)),

Judicial Fact-Making

Allison Orr Larsen, Factual Precedents, 162 U. Pa. L. Rev. 59 (2013).

Two judicial and scholarly heavyweights squared off recently in a case challenging the constitutionality of Wisconsin’s voter ID law. Writing for the Seventh Circuit panel, Judge Easterbrook reasoned that “whether a photo ID requirement promotes public confidence in the electoral system is a ‘legislative fact’—a proposition about the state of the world, as opposed to a proposition about these litigants or about a single state.” The Seventh Circuit was bound to accept that a photo ID requirement did promote public confidence in elections because “[o]n matters of legislative fact, courts accept the findings of legislatures and judges of lower courts must accept findings by the Supreme Court.” Dissenting from the denial of rehearing en banc, Judge Posner responded that Easterbrook’s approach “conjures up a fact-free cocoon.” Posner asked: “If the Supreme Court once thought that requiring photo identification increases public confidence in elections, and experience and academic study since shows that the Court was mistaken, do we do a favor to the Court … by making the mistake a premise of our decision?”

This disagreement between Easterbrook and Posner—in the language of Allison Orr Larsen’s excellent article—is about Factual Precedents: whether the Supreme Court’s statements about legislative facts should receive “separate precedential force, distinct from the precedential force of whatever legal conclusions they contributed to originally.” (P. 63.) As Larsen explains, such “facts” are everywhere in judicial opinions—facts like “partial birth abortions are never medically necessary, fleeing from the police in a car leads to fatalities, and violent video games affect the neurological development of a child’s brain.” (P. 71.) To support such claims, Supreme Court Justices regularly invoke authorities that have never been made part of the evidentiary record or subjected to adversarial challenge by the parties to the case. Yet—as the Easterbrook opinion suggests—lower-court judges often treat factual propositions as precedent that they are bound to accept as a matter of stare decisis. Larsen convincingly argues that this is a mistake. Rather, “generalized factual claims from the Supreme Court should not receive any precedential value separate and apart from the legal rules they helped to create.” (P. 99.)

To tackle this issue, Larsen begins by confronting how to distinguish “law” and “fact” in the first place. This is a trickier problem than one might think, and she recognizes the line of scholarly argument that the distinction is unworkable. While conceding that the boundary between fact and law is not “airtight,” she defines the sort of facts that might give rise to troubling factual precedents this way: “any claim that can be theoretically falsified and is followed by citation to some sort of evidence (not a case and not a statute).” (PP. 72-73.) A “factual precedent” is “a lower court’s reliance on the Supreme Court’s assertion of legislative fact—a general factual claim—as authority to prove that the observation is indeed true.” (P. 73.)

After laying this conceptual foundation, Larsen provides a typology of five different kinds of factual precedents. While recognizing that the categories are neither exhaustive nor mutually exclusive, she identifies: (1) “imported” facts that are transplanted from one context to another; (2) “strategic” facts that are used to supplement the record for a calculated purpose; (3) “aftermath” facts that appear in a landmark opinion and are used to answer residual questions; (4) “historical” facts about the state of the world at an earlier time; and (5) “premise” facts that form the premise of a legal rule.

Larsen then makes her normative case against factual precedent. Factual claims made in Supreme Court decisions should not be binding on lower courts. Such factual claims should not even be treated as persuasive by lower courts under a Skidmore-style standard of deference. Larsen’s argument is rich and multi-faceted, so I will only hit a few of the highlights here.

First, she rejects the idea that the Supreme Court is better positioned than lower courts to resolve important questions of fact because of their lighter caseload and the frequent filing of amicus briefs offering insights on such empirical issues. These qualities do not enhance the reliability of such factual findings, because such facts are often chosen not for their accuracy but rather for their ability “to build arguments and to tell a story.” (P. 101.)

Second, Larsen doubts whether factual claims (and their empirical support) are truly vetted by all of the Justices who join a particular opinion: “While we can be sure that a legal holding that garners five votes at the Court is debated by all of the Justices, the same assumption cannot be made about the factual claims that pepper the footnotes.” (P. 102.)

Third, Larsen argues that the Supreme Court lacks the competence to evaluate conflicting evidence as to particular factual claims. Unlike a specialized federal agency—which might justifiably deserve deference for its expertise and the process it must follow when issuing regulations—factual claims in Supreme Court opinions lack any assurance that competing authorities were carefully evaluated and inspected. If the authorities themselves are persuasive to lower courts, then the lower court should rely directly on those authorities. There should be no “extra persuasive bump” because they are cited in a Supreme Court opinion. (P. 107.)

Larsen’s article concludes by addressing a problem presented by the category of factual precedents she calls “premise facts.” One of several illustrations Larsen uses is the Supreme Court’s decision in Citizens United, which struck down a federal statute prohibiting certain political expenditures by corporations. The majority’s decision was based on the factual premise that corporate expenditures do not create corruption. After Citizens United, however, the Montana Supreme Court upheld a Montana statute forbidding political expenditures by corporations, based on a factual record showing that—at least in Montana—such expenditures corrupted the political process. Larsen observes that if such factual claims “are up for debate in any lower court in subsequent litigation, then we run the risk of chaos or at least a serious weak spot in the Supreme Court’s authority.” (P. 108.) Indeed, the Supreme Court promptly reversed the Montana Supreme Court in per curiam decision.

As to these situations, Larsen proposes a clear statement rule: “If the Supreme Court is clear that its factual statements are part of a legal rule, then the statements are authoritative due to their legal component. Absent such a clear label, a lower court should assume that the factual dispute is open for debate.” (PP. 111-12.) This is a thoughtful solution, but I wonder whether it is necessary to create this exception to what would otherwise be a strict no-factual-precedents approach. Citizens United, Larsen recognizes, might be understood as choosing a bright-line rule that “corporate election spending is protected,” rather than a more flexible standard that “corporate election expenditures are protected by the First Amendment when it is reasonably doubtful they will corrupt.” (PP. 109-10.) One can explain the Supreme Court’s treatment of the Montana decision, therefore, in terms of the law created by Citizens United, without having to allow situations where facts alone have precedential force.

As the saying goes, the Supreme Court is not final because it is infallible; it is infallible because it is final. It is crucial, therefore, to think carefully about when stare decisis should obligate lower courts to replicate potentially fallible features of Supreme Court opinions solely because of that Court’s place atop the judicial pyramid. By diagnosing and analyzing the problem of factual precedents—and showing us how the likelihood of fallibility is heightened when it comes to the factual claims Justices use in their opinions—Larsen makes a must-read contribution to this important line of inquiry.

Cite as: Adam Steinman, Judicial Fact-Making, JOTWELL (November 28, 2014) (reviewing Allison Orr Larsen, Factual Precedents, 162 U. Pa. L. Rev. 59 (2013)),

How Lower-Court Precedent Affects the Supreme Court

Aaron-Andrew Bruhl, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851 (2014).

Aaron-Andrew Bruhl has done it again. Beginning with a simple question—what can one say about the Supreme Court’s on-again/off-again relationship with lower court precedent—Bruhl finds a surprisingly rich collection of answers that illuminate much about the institutional federal judiciary. While Bruhl plays with numbers and demonstrates a sophisticated appreciation for the possibilities and limitations of empirical work on the federal courts, he treats quantitative analysis as one source of insight into a complex world rather than as an end in itself.

We’re familiar with the notion that the Court attends to lower court precedent. For starters, the Court often intones that its decision to grant review in a particular case was driven by a division in the lower court. When a split fails to emerge, it may prevent review for a time (as the marriage equality cases reveal). Even with a circuit split, the Court may refrain from taking a case at the first opportunity, preferring to allow the issue to percolate for a time as more circuit court judges take a crack at the problem. Finally, we often observe that particular members of the Court rely on lower court precedent in the course of their own treatment of an issue—Justice Breyer does this with some frequency, Bruhl reports, but Justice Scalia consciously eschews such reliance.

Bruhl manages to deepen our understanding of all of these matters. He begins with a bit of stage setting, invoking the Condorcet jury theorem (which explains the wisdom of groups) to illustrate why a Supreme Court like ours might benefit from the input of a large number of lower court decisions. More decisions, especially those that converge on a particular answer, might appear more likely to provide the “correct” answer. But Bruhl immediately recognizes several reasons why that may not always be true: lower courts may not be offering independent assessments of a question (particularly as circuit authority piles up on one side of a question), the Supreme Court has certain institutional advantages in the form of better briefs and arguments and longer decision times, and the legal question might have changed over the course of multiple decisions.

Bruhl also offers a nice typology of reasons why a Supreme Court might prefer to invoke lower court precedent. Those decisions may have a certain truthiness (as the Condorcet theorem suggests) and there may be pragmatic value in deferring to a well-settled view of the law that has emerged in the lower courts and has seemed to work tolerably well. With the typology in hand, Bruhl examines the numbers. He compiles a database from a recent three-year period and examines the Court’s behavior in light of the nature of the lower court authority. He finds some evidence that the Court more likely follows the direction indicated in a one-sided circuit split, but the evidence is far from conclusive. Indeed, he finds a number of situations in which the Court came out on the other side of a one-sided split.

These findings lead Bruhl to ask a series of productive second-order questions. For example, he raises serious doubts that one can identify “easy” cases by pointing to the one-sided nature of a circuit split (as some quantitatively minded scholars have hypothesized). Moreover, he usefully complicates our understanding of the very nature of a circuit split. After all, we have no definitive reporting system for circuit splits. In trying to identify splits, one might focus on the language of the Court’s own opinions (which in practice lack consistency) or on the content of the parties’ briefs (which sometimes disclose more or different information on circuit splits than the Court reports). Finally, he points out that the nature of a legal question may change as time advances. Lower courts may be constrained in their view of the law by existing circuit or Supreme Court precedent, and those constraints may not apply in other courts (either because they work in a different circuit or because the relevant Supreme Court precedent was overruled in the meantime). Caution to data crunchers: the task of coding for the existence and depth of a circuit split is no easy thing.

It seems fitting, somehow, that Justices Scalia and Breyer would differ so sharply in their use of lower court precedent. Justice Scalia tends to his own knitting; he believes in his own muse and in his own obligation to offer an independent determination of the legal question at hand. Justice Breyer, ever the pragmatist, attends more closely to the consequences of legal rules and the impact of unsettling from on high an interpretation of law that has taken hold below. Interestingly, Bruhl shows that Justice Kagan, at least at this stage in her career on the Court, has more in common with Justice Scalia than with Justice Breyer. Other Justices fall somewhere in between.

Bruhl ends, however self-consciously, with an anecdote. It seems that one Fifth Circuit panel identified a textual wrinkle in a statute that seemed pretty clearly to point to an answer different from views expressed by the several circuits that had previously decided the issue the other way. What to do? Follow the text or the weight of non-binding circuit authority? The panel followed the text, creating a split and virtually inviting Supreme Court review. But then the Fifth Circuit granted en banc review and reversed the panel, concluding that it was better to preserve the unity and clarity of the law than to insist on the accuracy of its own panel’s (arguably correct) interpretation. Perhaps the Fifth Circuit was also worried about the possibility of further review; by abrogating a panel decision that had created a circuit split that might beg for High Court intervention, the en banc circuit court avoided a division that could have resulted in an appellate reversal.

We learn much about the institutional judiciary from such a story. Accuracy in strictly legal terms may be a driving force in legal decisions, but it is not the only force. Courts may act strategically to reduce the likelihood of appellate reversal, thus lessening the “accuracy” of the signal that their decisions might otherwise convey about the best interpretation of the law. Circuit courts willing to buck a strong trend in the other circuits may do so only if genuinely convinced of the correctness of their view. Perhaps, then, a court that has recently disagreed with the weight of lower court authority (thereby creating a one-sided circuit split) may be sending (counterintuitively) a more accurate signal about the law than that expressed in the previously accumulated wisdom of the group.

Cite as: James E. Pfander, How Lower-Court Precedent Affects the Supreme Court, JOTWELL (November 14, 2014) (reviewing Aaron-Andrew Bruhl, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851 (2014)),

Appealing to Injustice

William M. Richman & William L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (2013).

Professors William M. Richman and William L. Reynolds have been writing about the “crisis” facing the U.S. Courts of Appeals—a crisis borne out of the combination of a dramatic uptick in appellate caseloads and the lack of any corresponding increase in the number of federal appellate judges—since before I was born. Readers familiar with their groundbreaking earlier work in the field might therefore wonder whether there’s anything to learn from their new monograph on the subject, Injustice on Appeal. But the longevity of their critique actually underscores the significance of their newest work. By almost any account, the crisis facing the thirteen federal Courts of Appeals is only getting worse—and the steps those courts are taking in an effort to abate that crisis (what Richman and Reynolds refer to as the “Appellate Triage” regime) are only getting that much more controversial. Indeed, it is no overstatement to suggest that Injustice on Appeal is at once the most comprehensive—and yet accessible—descriptive account to date of both the crisis itself and the Appellate Triage regime that circuit judges have devised in response.

The real contribution of Injustice on Appeal, though, is not in its descriptive account of how the appellate crisis came to be, how circuit judges have responded, or why contemporary judges and lawmakers are so comfortable with such a problematic status quo. As the title suggests, Richman and Reynolds’ thesis is that the judicial response has created “injustice,” by producing a disproportionate impact on a specific subset of litigants. In their words, the effect of the Appellate Triage regime “falls disproportionately on the poor and middle class, whose appeals are deemed less momentous than the ‘big’ cases brought by or against the government or major private economic actors.” But while it’s impossible to discount the plight of poor and middle-class federal litigants in recent years, the real question Richman and Reynolds raise (but do not answer) is whether it’s the appellate crisis—as opposed to increasingly harsh procedural and substantive rules—that is to blame.

I. The Caseload Crisis and the “Appellate Triage” Regime

As Richman and Reynolds document, the average caseload per federal appellate judge has jumped from just over 57 cases per year in 1960 to over 340 in 2010. That statistic would be staggering enough in the abstract, but it comes alongside two additional developments that make it that much more jarring: First, the same period has seen a dramatic reduction in the number of cases heard by the Supreme Court—leaving the increasingly overworked Courts of Appeals with the last word on an ever-increasing majority of questions of federal law. Second, and less obviously, the same period has seen a proliferation in administrative appeals—in at least some of which (e.g., immigration and social security cases) the Courts of Appeals are all too often the first meaningful Article III word on those same questions.

In response to the undeniable pressures these developments have created, the circuit courts have, in addition to more zealously guarding their appellate jurisdiction, adopted a series of triage measures for cases within their purview. The hallmarks of this regime include (1) the screening of nearly all appeals by staff attorneys in the Court of Appeals’ clerk’s offices to assess the merits—or lack thereof; (2) the disposition of many—if not most—of those cases without oral argument; and (3) the resolution of the appeal through unpublished (and, until 2006, uncitable) “memorandum dispositions.” Through these devices, Richman and Reynolds argue, the Courts of Appeals have transmogrified themselves from courts of mandatory appellate jurisdiction into de facto certiorari courts, with only a specially chosen minority of cases receiving the full range of “traditional” appellate adjudication, including a “sufficiently detailed explanation so that the whole world can second-guess the result—and have an informed idea as to the state of the law.” And whereas a similar move by the Supreme Court in the 1980s was at least tied to statutory amendments to its jurisdiction (and thereby pursuant to a legislative sanction), these developments within the Courts of Appeals have taken place entirely through internal (and usually informal) procedural changes.

At some level of generality, all of Richman and Reynolds’ conclusions should be familiar to those with experience practicing before (or working with) the Courts of Appeals. But Richman and Reynolds replace anecdotal experience with incontrovertible evidence—and the numbers are staggering. According to the Administrative Office of the U.S. Courts, 81.4% of cases decided by the Courts of Appeals on the merits in 2012 were resolved through unpublished orders or opinions. A typical appellant, in other words, has less than a 1-in-5 chance of receiving the benefits of “traditional” appellate review from the Courts of Appeals. Reasonable minds can certainly differ as to whether such a regime is normatively desirable; what cannot be gainsaid is the complete absence of any meaningful democratic involvement in—or accountability for—such a fundamental shift in our judicial processes.

II. The Injustice of Contemporary Appeals and the Reform Agenda

As Professor Marin Levy has explained, the true insight of Richman and Reynolds’ work is not simply in describing the Appellate Triage regime. Rather, the insight is in showing how “it is not simply that some cases receive less judicial attention overall, but rather that some kinds of cases receive less attention—namely, social security cases, prisoner cases, and criminal cases,” i.e., “cases brought by parties who are arguably the most vulnerable in our legal system,” including criminal defendants, prisoners, and certain administrative claimants such as veterans and Social Security beneficiaries. In other words, Richman and Reynolds conclude, although the Appellate Triage regime would be problematic enough in its own right, it appears to not be “neutral,” but rather to give informal preference to litigants with means over those without:

Of course, this unfortunate result does not come from any deliberate attempt to harm disfavored groups; the federal appellate courts remain, in theory, a bulwark protecting the citizenry. Nevertheless, the harm is there for all to see; judges are simply less likely to devote serious effort and attention to the routine veterans’ benefit denial appeal than to the interesting corporate tax case. The discrimination may be ad hoc rather than planned, de facto and not de jure, but it is nonetheless real.

The “injustice” of the Appellate Triage regime, then, becomes Richman and Reynolds’ core impetus for reform; for if the regime is not sufficiently worthy of reform as such (and it hasn’t been, at least thus far), surely this effect, whether intended or not, is one that should not be tolerated by the American people—or, through them, federal policymakers. Instead, Richman and Reynolds conclude, Congress should finally accept the need for more federal appellate judges, even if the circuit courts themselves won’t.

In appealing to “injustice,” though, Richman and Reynolds’ work raises—but does not answer—perhaps the most important question. Students and scholars of Federal Courts jurisprudence know all too well how difficult it has become for many of these same classes of litigants to press their claims in any forum—a result of a controversial series of judge-made procedural obstacles and legislative constrictions of remedies over the past thirty years. And insofar as these statutes and doctrines have increasingly circumscribed both the entitlement of these parties to any judicial relief and the discretion of judges to so provide, the injustice of contemporary appeals may merely be an inevitable byproduct of the far more pervasive (and problematic) injustices pervading our contemporary legal system writ large.

Regardless, Richman and Reynolds have written a book that is a must-read even for those already familiar with its conclusions, but especially for those who are not.  There may be some disagreement as to the causes of the injustices plaguing present-day federal appeals, but there can no longer be denial of their existence.

Cite as: Steve Vladeck, Appealing to Injustice, JOTWELL (October 28, 2014) (reviewing William M. Richman & William L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (2013)),