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Severability, Separation of Powers, and Agency Design

Kristin E. Hickman, Symbolism and Separation of Powers in Agency Design, 93 Notre Dame L. Rev. 1475 (2017).

Kristin Hickman pursues a “modest” goal in Symbolism and Separation of Powers in Agency Design: “to raise a few reservations regarding judicial refashioning of agency design via [a] severance remedy for separation of powers violations.” This understated approach commands attention to Hickman’s analysis. In this contribution to a Notre Dame symposium on “Administrative Lawmaking in the Twenty-First Century,” Hickman clearly identifies and carefully analyzes problems arising out of what might otherwise have passed as unremarkable applications of existing severability doctrine. With an eye toward big-picture legitimacy of courts and agencies, and with attention toward doctrinal and statutory detail, Hickman provides fresh reasons for judges to rethink this doctrine. And the increased attention earned by relatively restrained criticisms like Hickman’s may eventually move the law in the direction of more radical critiques that have started to receive an audience at the Supreme Court.

Hickman describes three cases or sets of cases in which the Supreme Court or the D.C. Circuit held an agency design unconstitutional based on separation of powers principles and then “fixed” the problem by “severing” a structural provision of the statutory agency design. These cases addressed the structure of the Public Company Accounting Oversight Board, the Copyright Royalty Board, and the Consumer Finance Protection Bureau.

The accounting oversight board was protected by two layers of for-cause removal restrictions. Board members were removable by SEC commissioners, but only for cause; SEC commissioners were removable by the President, but also only for cause. The Court fixed this problem by eliminating the for-cause restriction on SEC Commissioners’ ability to remove board members.

The Copyright Royalty Board’s three Copyright Royalty Judges, who were appointed subject to removal by the Librarian of Congress, were judicially determined to be principal rather than inferior officers. This status was owing, in part, to a for-cause limitation on the Librarian’s authority to remove them. Because the Librarian of Congress is not constitutionally permitted to appoint principal officers, the D.C. Circuit transformed the royalty judges into inferior officers. The court accomplished this by eliminating the statutory for-cause limitation on the Librarian’s removal authority.

The Consumer Finance Protection Bureau, according to a split D.C. Circuit panel, was unlawfully headed by a single director removable only for cause, rather than by a multimember commission made up of commissioners removable only for cause. The panel fixed this problem by eliminating the for-cause limitation on the President’s ability to remove the Bureau’s director. The need for severance was ultimately obviated, though, when the D.C. Circuit took the panel decision en banc and reversed on the constitutional merits. That en banc decision removed the need to determine whether the panel’s severance move was correct.

Hickman raises three reservations about the appropriateness of severance in these three cases. First, the remedy was not as restrained as it seems when compared with the alternative of leaving the statute operative as is but without a functioning agency for the time it takes Congress to fix it, and when taking into account the tradeoffs reflected in the now-invalidated agency design. Second, litigants will have less incentive to challenge agency design when the end result makes little practical difference to the outcome of their particular cases. Third, severance of for-cause removal restrictions renders agency actors less politically independent and thereby undercuts their perceived legitimacy.

These criticisms are not of equal weight—the first and third are more powerful than the second. Hickman acknowledges that a reduction in litigation incentives may not be that significant given the presence of other available actors to press structural separation of powers arguments in challenging agency actions. She properly sees a form of “cause lawyering” at work in the accounting oversight board case, for example.

Adding to Hickman’s points about mixed litigation incentives, one might also observe that severance in the three cases reduced the practical costs of the underlying constitutional holding by leaving the agency’s day-to-day operations untouched. And the Supreme Court may have been more responsive to the substantive constitutional arguments presented by separation-of-powers “cause lawyers” precisely because of the availability of a non-disruptive fix. While this observation limits the force of the litigation-incentives argument, it provides greater cause to be concerned about judicial interference with the agency-design choices that Hickman discusses in connection with her other two reservations.

A few weeks after the November 2017 symposium at which Hickman presented her paper, the Supreme Court heard oral arguments in Murphy v. NCAA. The case had nothing to do with agency design, but the resulting opinions had much to do with severability doctrine. After declaring a federal statute partially unconstitutional, the Court used severability doctrine to render it totally unenforceable.

Justice Thomas took the occasion to write a powerful concurrence, one that deserves the serious and sustained attention it will receive over time. Thomas details many ways in which the Court’s “modern severability precedents are in tension with longstanding limits on the judicial power.” The judicial power is the power to render judgments in cases, and what we now call “judicial review” is “a byproduct of that process.” As a consequence, “when early American courts determined that a statute was unconstitutional, they would simply decline to enforce it in the case before them.” Later deviations from this practice should be curbed.

If Thomas is correct, there is more reason to reject the statutory severance Hickman calls into question. The three cases Hickman discusses exemplify what happens when the metaphor of “severability” gets away from the judges and they mistakenly think that severance is a thing that they can do. But just as Hamilton was right in Federalist No. 78 that the judiciary lacks the power of the sword, Justice Thomas is right that the judiciary lacks the power of the Exacto knife.

And this brings our consideration full circle to Hickman’s explanation of how things might have worked better if the judiciary had simply followed the traditional path of setting aside the challenged agency action in these cases. The most powerful part of Hickman’s analysis is her insistence on the obvious but overlooked fact that “declaring an administrative agency’s structure to be unconstitutional and the agency’s actions to be inoperative” is not the same as “invalidating a statute altogether.” Statutory prohibitions and requirements would remain in force even if there is no enforcement agency at work. And Congress could then revive the agency by making any necessary changes. If severance were not available, the litigants who successfully challenged the agency design would have been better off, and the agencies would not have been judicially reconstituted in ways that risk undermining their perceived legitimacy and that ignore legislative debates and choices.

In his Murphy concurrence, Thomas emphasized the way in which modern severability doctrine “requires courts to weigh in on statutory provisions that no party has standing to challenge, bringing courts dangerously close to issuing advisory opinions.” The scenario in which this worry has appeared most acutely is when a holding of inseverability threatens the enforceability of parts of a statute not otherwise properly before the court. But the cases that Hickman discusses reveal a different version of an advisory opinion problem. The courts purported to remove a sentence or two from the agencies’ governing statutes—which they can only do metaphorically—while leaving “the actions of the challenged agency, and the structures and actions of identically or similarly designed agencies, largely or entirely untouched.”

Although Hickman does not question the fundamental legitimacy of modern severability doctrine, her analysis of its application in a few cases shows the power of raising reservations “regarding judicial refashioning of agency design.” If the Supreme Court and the D.C. Circuit were to follow Hickman’s advice and contemplate their application of modern severability doctrine more thoroughly, they might find their conclusions more unsettling than Hickman’s lawyerly disclaimer of any “grand proposals” suggests.

Cite as: Kevin C. Walsh, Severability, Separation of Powers, and Agency Design, JOTWELL (October 9, 2018) (reviewing Kristin E. Hickman, Symbolism and Separation of Powers in Agency Design, 93 Notre Dame L. Rev. 1475 (2017)), https://courtslaw.jotwell.com/severability-separation-of-powers-and-agency-design/.

Lies, Dating Lies, and Small Claims Court

Irina Manta, Tinder Lies, ___ Wake Forest L. Rev. ___ (forthcoming 2019), available at SSRN.

In a world dominated by online dating, my own marriage seems quite quaint.  We were introduced to each other! In person! By another human being! Sometimes I think that people give me a faintly odd look – a look that just 15-20 years ago was reserved for the bold (and seemingly “shameless”) people who dared to look for a partner online. When I left the dating world, it consisted primarily of websites. But as Irina Manta points out in her intriguing and provocative new article, Tinder Lies, online dating has become even easier and more ubiquitous with the surge in popularity of dating apps such as Tinder and Bumble. Manta confronts a problem that is as old courtship itself, that of sexual fraud, or “lies 1) that were put in profiles on online dating apps/sites, 2) whose content would materially influence the decision of a reasonable person whether to have sexual intercourse with the profile owner, and 3) remained uncorrected before sexual intercourse took place.” Like many problems, the issue of truth and disclosure in dating and sexual interactions has become more magnified and widespread when the primary platform for romantic and sexual introduction involves a great deal of anonymity, self-description, and the uncomfortable knowledge that one is, essentially, in a marketplace.

Tinder Lies is a terrific read. Manta takes on a question of increasing significance in the lives of many Americans who use online dating services and apps: What, if anything, should be done about users who lie about themselves in their profiles, where these lies lead other users to make decisions of significant personal import that they would not have otherwise made–to have sex with the person in the deceptive profile or to invest a significant amount of time and emotional resources in a relationship with a fraudster? While some lies might strike us as relatively harmless and easily debunked upon a face-to-face meeting, such the height or weight of the user, other lies are far more consequential, such as the person’s marital status,.

With these questions in mind, Manta offers an engaging primer on the history and current doctrinal landscape of legal responses to sexual fraud. She uses trademark law as a useful analogue to the problems of sexual fraud in online dating and offers a framework for a state law response to sexual fraud in which behavior that amounts to false advertising subjects that person to civil liability.  She concludes by suggesting that this legislative framework could be operationalized by offering claimants access to expedited proceedings in small claims court. As a civil procedure scholar, it is this last piece that I find most intriguing (and which is, presumably, of most interest to JOTWELL Courts Law readers).

At the outset, I applaud Manta for incorporating a procedural aspect into what is otherwise a mostly substantive discussion about the merits and drawbacks of permitting or designing causes of action for sexual fraud at all.  Procedure is often an afterthought in substantive policy or legislative proposals. For our part, proceduralists are sometimes less attentive to the substantive components of our ideas than we should be. Manta recognizes serious barriers to enforcement of claims for sexual fraud and realizes that some are as much procedural as they are substantive. Many plaintiffs would not have the financial (or, frankly, emotional) resources to file a lawsuit in a court of general jurisdiction where the filing costs might dwarf any recovery, where litigation is slow and expensive, and where proving actual damages might be a significant barrier to a meaningful recovery.

To counter these procedural problems, as well as to crystalize a coherent cause of action, Manta proposes a model state statute that essentially sets statutory damages for sexual fraud at a level below that state’s jurisdictional limit for small claims court. It is easy to see the appeal of such a proposal. Small claims court enables claimants to file lawsuits without the expense or need of retaining counsel, paying hefty filing fees, and engaging with the other costly processes associated with litigating in a court of general jurisdiction.

Although these are noble aspirations, the reality of small claims courts may be at odds with Manta’s stated goals. The hallmarks of small claims courts (besides their low jurisdictional limits for amount in controversy) are relaxed procedural and evidentiary rules and a norm of proceeding pro se. Given the nature of a claim of sexual fraud, there may be problems with encouraging plaintiffs to file suits in a system that does not treat evidence and witnesses with the same rigor as courts of general jurisdiction. As Manta acknowledges, claims of sexual fraud involve a good deal of “he said, she said” controversy. Whether the plaintiff would have engaged in a sexual relationship but for the lie told by the defendant may be difficult to prove in a procedurally abbreviated format. Even the facts that Manta considers straightforward might be “easy” to prove, but nonetheless expensive. Take, for example, the question of whether the defendant lied about his or her marital status. The plaintiff would need to produce some sort of record of what the defendant said on his or her profile. This information is easy to change, and save for the plaintiffs who are savvy enough to take screen shots (which should really be subject to evidentiary authentication), that information is in the hands of the dating app rather than the plaintiff. This information is not impossible to obtain. But getting records from a third party is expensive and requires procedural savvy – precisely the sort of process that Manta wants to spare complainants in these cases. Even the question of marital status requires some work. A recalcitrant defendant can essentially force a plaintiff to unearth a marriage certificate or corroborating witness in discovery to prove marital status at the time in question. These questions differ from “typical” small claims cases, such a garden variety suit between a home owner and a contractor, where the parties are largely in possession and control of a few key documents or other easily captured pieces of evidence.

In other words, the defendant in these suits can easily put the plaintiff to her proof. And any law or system that would abbreviate such rights of the defendant and allow the plaintiff to prevail more-or-less on her own assertions should give everyone serious pause. Sorry as I feel for people who have made heartbreaking choices based on false information, the judicial system is especially solicitous of protecting the rights of defendants on claims involving either sexual conduct or fraud. A claim of sexual fraud carried serious moral weight, even if Manta’s statutory penalty is low. And I am uncomfortable with applying a system of relaxed evidentiary rules and abbreviated procedures to these claims. One source of this discomfort is that such a statute could hurt women more than men. Manta believes that dating app sexual fraud is perpetrated more by men than by women. But given a recent study showing that in online dating men’s desirability peaks at age 50 whereas women’s desirability peaks at age 18, women are under significant (and understandable) pressure to misrepresent their age. This lie could be the source of many, many claims. And to funnel these cases into a system where people have a limited ability to defend their reputations, or to do so at what is ultimately a much higher cost than typical small claims court promises, is dicey territory.

Finally, even if one were to set aside reservations about having these sorts of claims proceed in low-jurisdictional-limit courts, there are reasons to tamper enthusiasm about the efficacy of small claims courts. These courts offer abbreviated procedure; they do not always offer meaningfully abbreviated timelines. While cases in small claims court are resolved faster than those in courts of general jurisdiction, it can still take 6-12 months of waiting and hours in line at the courthouse for a 5-10 minute hearing before a judge.  Moreover, small claims court judgments are notoriously difficult to enforce. One study found that only 55% of small claims court judgments resulted in any payment to the plaintiff at all, and that when judgments were collected, they amounted to about 31% of what the plaintiffs were actually awarded.

Having stated those words of caution, I still think that Manta makes a significant contribution. Few scholars are as specific about exploring the connection between cause of action, remedy, and a meaningful forum for enforcing that remedy. I wish that Manta had engaged further with the difficulties of small claims courts. Although this might be perceived as a damper on enthusiasm for her idea, it is actually an opportunity to reinvigorate scholarly dialogue about litigation and dispute resolution in alternative public forums. Procedural and substantive scholarship could benefit with such engagement. Manta’s proposal is an excellent starting point for this kind of scholarly dialogue.

Cite as: Robin J. Effron, Lies, Dating Lies, and Small Claims Court, JOTWELL (September 25, 2018) (reviewing Irina Manta, Tinder Lies, ___ Wake Forest L. Rev. ___ (forthcoming 2019), available at SSRN), https://courtslaw.jotwell.com/lies-dating-lies-and-small-claims-court/.

The Politically Powerful and Judicial Review

Aaron Tang, Rethinking Political Power in Judicial Review, __ Cal. L. Rev. __, (forthcoming 2019), available at SSRN.

Courts and commentators have long debated the proper role of judicial review in democracies, particularly the question of how deferential courts should be when determining whether to uphold legislation. Much constitutional adjudication is devoted to understanding phrases that are reasonably susceptible to various meanings, even when history and precedent are consulted. In those situations, how certain should jurists be that their interpretations of constitutional phrases or terms are correct before they vote to invalidate democratically enacted legislation?

At least two facts drive and complicate the answer to this question. First, we live in a land where the people purportedly govern themselves; there must be some limitations on the ability of unelected judges to invalidate legislation. Second, we live in a land where history has taught that, when left unchecked, elected officials sometimes trample individual rights and subjugate politically powerless minorities with impunity. Attentive to both of these facts, adherents of the political process theory of judicial review advocate for a judiciary that is deferential to politically accountable branches unless (1) the law undermines the capacity of citizens to make political change or (2) the law burdens a politically unpopular group. Under John Hart Ely’s traditional understanding of political process theory, when a law “clog[s] the channels of political change,” or targets a politically powerless group, this should increase courts’ readiness to invalidate a potentially unconstitutional law.

Aaron Tang’s forthcoming article persuasively makes the case that this traditional articulation of political process theory provides an incomplete accounting of the ways that political power can and should inform judicial review. Political process theory, he contends, is not just about political powerlessness; it is also about political powerfulness. Not only should courts be more willing to invalidate legislation that burdens politically powerless groups; they should also be less willing to invalidate legislation that burdens politically powerful groups.

Tang’s observation has both descriptive and normative dimensions.  s a descriptive matter, he identifies ways that the Supreme Court has invoked groups’ political powerfulness as a reason to defer to elected officials’ legislative choices. For example, the Court cited the political influence of taxpayers while upholding legislation taxing state workers. More recently and famously, the Court upheld legislation burdening States, citing States’ political power in our constitutional design. The Court cited unique advantages that States have in the federal legislative process, particularly the equal suffrage that each State receives in the Senate. Garcia v. San Antonio Metropolitan also cited victories that States had achieved in the national political arena, including federal revenues that are directed to State treasuries and exemptions from broad swaths of legislation.

The Supreme Court further relied on political power when upholding legislation against challenges under Dormant Commerce Clause jurisprudence. In upholding legislation in Minnesota v. Clover Leaf Creamery, the Court observed that the law most adversely affected powerful in-state interests. Those “major in-state interests” stood as “a powerful safeguard against legislative abuse.”

Tang notes that in recent cases, a range of justices from across the ideological spectrum have cited groups’ political power as a reason to uphold legislation involving gun rights and same-sex marriage, albeit in dissent. Dissenters in McDonald v. City of Chicago argued that the elected branches were capable of safeguarding interests in keeping and bearing arms, adding that “no one disputes that opponents of [gun] control have considerable political power.” Chief Justice Roberts’ dissent in Obergefell v. Hodges emphasized that supporters of same-sex marriage “ha[d] achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view.”

In addition to persuasively showing that a number of justices do invoke political power as a ground to uphold legislation, Tang argues that they should do so. This would bolster democratic values and perhaps even judicial legitimacy. When constitutional text is ambiguous, it is generally sound to defer to politically accountable bodies, so long as the political process is working as it should. In our democratic republic, legislation is understood to be a valuable expression of majoritarian will. When a constitutional challenge is based on ambiguous text, history, and precedent, it is hardly clear that judges should always err on the side of invalidating the people’s political choices.

Moreover, in the face of indeterminate constitutional text, principles and values assist judges with close calls; but it is not apparent why their principles and values are institutionally more sound or legitimate than those of the people’s elected representatives. This is more true when a law burdens a group with outsized political power, because a majority of voters overcame powerful forces to enact their will. Further, courts may weaken their own legitimacy by regularly invalidating legislation designed to tame politically powerful forces in the face of ambiguous text.

Tang offers concrete examples of cases that would potentially yield a different result if the Court focused more consistently and explicitly on political power when determining whether to defer to a legislative choice. His most compelling examples attack so-called “First Amendment Lochnerism.” The Supreme Court has relied on ambiguous constitutional text to invalidate the people’s attempts to check corporations’ runaway financial influence over American elections. Citizens United relied on ambiguous text to (1) invalidate congressional limits on corporate expenditures and (2) overrule precedent that was more deferential to elected officials’ choices. Large corporate interests are politically powerful in our electoral system, particularly compared to most juridical or natural persons.

Tang’s contribution is remarkably timely. The role of political powerlessness in constitutional adjudication appears to be waning. The Court has not identified a new suspect class for equal protection purposes in roughly forty years. Trump v. Hawaii upheld government action burdening non-citizens and religious minorities, with nary a mention of those groups’ relative inability to protect themselves in the political process. Tang highlights ways that political power does and should play a role in constitutional adjudication, as have a broad range of justices. This suggests that the phenomenon may survive the shifting ideological winds. Tang’s observations can and should shape the future of judicial review in powerful ways.

Cite as: Fred O. Smith, Jr., The Politically Powerful and Judicial Review, JOTWELL (September 7, 2018) (reviewing Aaron Tang, Rethinking Political Power in Judicial Review, __ Cal. L. Rev. __, (forthcoming 2019), available at SSRN), https://courtslaw.jotwell.com/the-politically-powerful-and-judicial-review/.

Why Military Justice Doesn’t Get Enough Academic Attention

The military justice system receives embarrassingly little attention from the legal academy in general and from legal scholarship in particular. Part of that may be the Supreme Court’s fault; it has been 35 years since Congress gave the Court direct appellate jurisdiction over the Court of Appeals for the Armed Forces (“CAAF”), the Article I court that sits atop the court-martial system. In that time, the Court has taken ten cases from CAAF—almost all of which, including Ortiz from this Term (which I argued on behalf of the Petitioner), have involved structural questions about the jurisdiction of military courts, the appointments of military judges, or both. There are compelling reasons why the Justices can and should take more (and more substantive) cases from CAAF, but there are important limits on their power to do so. Under current law, CAAF has discretion to choose which cases it hears (it has mandatory jurisdiction only in capital cases and those referred to CAAF by service-branch Judge Advocates General), and the Supreme Court can grant certiorari only if CAAF itself reviewed a court-martial appeal. As a result, a direct constitutional challenge to a criminal conviction cannot get to the Supreme Court if it arises from a court martial that CAAF does not review—the only context in the entire federal system today in which that is true. And as I have argued elsewhere, it is not because these cases are unimportant. Instead, “there are plenty of cases that the Court can take from CAAF but doesn’t, and there are even more cases that it can’t take but otherwise should.”

But the dearth of Supreme Court attention to the military justice system hardly explains the dearth of scholarship about it. After all, the Court has decided exactly one case arising out of the Guantánamo military commissions since they were established in November 2001, which have produced exactly eight convictions, all or parts of five of which have not survived appeal. Yet the pages of law reviews and legal monographs are replete with detailed analyses of the various disputes arising from those proceedings. Instead, the best that can be said about the paucity of good military justice scholarship is that, for whatever reason, there is not the same interest among non-military lawyers in the myriad substantive, procedural, and evidentiary issues that arise in the court-martial system. This is true even though that system has (1) increasingly focused its work on offenses that look less and less like the classic military offenses subjected to military justice at the Founding and that therefore increasingly raise legal questions of general applicability; and (2) recently undergone some of the most important and sweeping reforms since the enactment of the Uniform Code of Military Justice (UCMJ) in 1950. Instead, almost all of the best military justice scholarship these days has come from military lawyers—such as Captain Brittany Warren’s 2012 Military Law Review article.

The latest example is a 2016 article by Rodrigo M. Caruço, a Captain and lawyer in the U.S. Air Force Judge Advocate General’s corps, which offers a quantitative and qualitative assessment of the role of CAAF within the military justice system. As Caruço documents, CAAF both is, and sees itself as, “the supreme court of the military judicial system,” which is why Congress created its predecessor as part of the UCMJ. But rather than act like a “court of last resort,” CAAF “acts as an intermediate error-correction court…far too often.” Even though CAAF only conducts plenary review of approximately 40 convictions per year, Caruço’s quantitative analysis suggests that somewhere between half and 90% of its decisions in such cases entail little more than modest error correction. And because of the aforementioned limits on the Supreme Court’s appellate jurisdiction, the net effect is to dramatically reduce the incidence of “law declaration” within and without the military justice system. Instead, the overwhelming majority of cases (and issues) within the military justice system get no further than the intermediate appeals courts—the service-branch courts of criminal appeals—which themselves dispense of most appeals summarily.

The indirect but inescapable takeaway from Caruço’s insightful analysis is that much of the most important law in the military justice system is made by trial courts and does not become the subject of appeals (or, at least, of detailed appellate opinions that tend to provide fodder for academic commentary). It therefore may not be surprising that these rulings receive less scholarly attention—they are both less accessible and non-precedential. Indeed, although its focus is on whether CAAF truly behaves as a “court of last resort,” one of the most important takeaways from Caruço’s article is the more general conclusion that too many legal issues are resolved on a case-specific basis by military trial judges without the rigors of meaningful appellate oversight. To fix that deficiency, Caruço proposes a series of procedural reforms that would principally increase the number of cases CAAF takes, with a specific eye toward increased law declaration from that court.

But real reform may need to come from Congress, which has the unquestioned authority to increase the size of CAAF’s mandatory (as opposed to discretionary) docket and to allow servicemembers to seek review from the Supreme Court even if they are turned away by CAAF. If necessary, Congress could also add judges to CAAF (which currently has five seats—the fewest of any circuit-level federal appeals court) to handle the increased caseload. Until and unless some combination of these reforms take place, it may well be that military justice continues to receive short shrift from scholars. Not because military law is uninteresting or unimportant or because it is irrelevant to broader assessments of contemporary criminal law and procedure, but for the far less interesting—and far more important—reason that its shape and scope are harder for outside observers to see.

Cite as: Steve Vladeck, Why Military Justice Doesn’t Get Enough Academic Attention, JOTWELL (August 14, 2018) (reviewing Rodrigo M. Caruço, In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71 (2016)), https://courtslaw.jotwell.com/why-military-justice-doesnt-get-enough-academic-attention/.

A Step Toward a Proper Understanding of Constitutional Litigation

Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. __ (forthcoming 2018), available at SSRN.

Everyone—public, media, government officials, courts, and first-year law students—understands constitutional litigation in light of two ideas. From Marbury v. Madison’s declaration that it is “emphatically the province and duty of the Judicial Department to say what the law is,” everyone believes that the Supreme Court gets the final, uncontestable word on what the Constitution says and means. And a court exercising judicial review “strikes down” or “sets aside” or “invalidates” unconstitutional laws, rendering them null and void for all purposes, erased from existence, as if never enacted and no longer available as “law.”

In a new article, Jonathan Mitchell labels this the “writ-of-erasure fallacy,” the erroneous “assumption that a judicial pronouncement of unconstitutionality has cancelled or blotted out a duly enacted statute, erasing that law from the books, vetoing or suspending it and leaving nothing for the executive to enforce now or in the future.” In fact, judicial review is more limited. Having identified a law as constitutionally invalid, a court may decline to enforce that law in a particular case or it may enjoin executive officers from enforcing the law while the injunction remains in effect. But the statute continues to exist as law unless and until repealed by the enacting legislature. It is a fiction that courts “strike down” or “block” or “invalidate” statutes. That fiction creates misunderstandings about constitutional litigation and the effect of judicial rulings in constitutional cases. And that fiction unnecessarily limits the power of the executive to enforce still-existing law and of the legislature to enact new or amended laws.

Mitchell first traces the fallacy to the early days of the Constitution. One source is Convention debates over a proposed Council of Revision that would have given federal courts a genuine power to veto legislation as unconstitutional, preventing a proposed law from taking effect. Of course, the Council idea failed—and with it the power of the federal judiciary to strike laws from the books. Another source is the rhetoric of Marbury and its progeny, in which courts describe judicially disapproved statutes as “void” or “not law.” A third is the courts’ tendency to adhere to precedent; because courts are unlikely to overrule constitutional precedent, judicial disapproval of a statute in one case is regarded as permanent. Courts therefore refuse to enforce the statute (previously declared constitutionally infirm) in future litigation and enjoin threats or attempts at future enforcement. History shows, however, that the Court does overrule precedent at times, putting lie to the assumption that any judicial declaration of constitutional invalidity is permanent.

Mitchell then illustrates the nefarious effects of the writ-of-erasure fallacy in two doctrines. The first involves the Civil Rights Act of 1875, a late-Reconstruction statute that prohibited race discrimination in places of public accommodation. In The Civil Rights Cases, the Court held that Congress lacked the authority under § 5 of the Fourteenth Amendment to prohibit private racial discrimination, while treating the statute as void for all purposes. By purporting to “erase” the Act, however, the Court disabled its future uses, such as against discrimination on a train traveling in interstate commerce or against state-compelled racial segregation in Plessy v. Ferguson. As to the latter, Mitchell argues that the Court should have held that the 1875 Act, still extant as federal law, preempted the discriminatory state law.

The second nefarious effect is to overstate the effect of judicial injunctions. An injunction “simply forbids the named defendants to enforce the statute while the court’s order remains in place.” The injunction does not suspend or revoke the statute. And it does not shield those who violate the statute from future prosecutions or penalties should the injunction be dissolved or should the court overrule the underlying pronouncement of unconstitutionality. Mitchell analogizes an injunction to a President ordering his subordinates not to enforce a statute he believes is constitutionally invalid. Neither voids or strikes down the law, which remains on the books, presently unenforced but potentially enforceable.

Finally, Mitchell considers four doctrinal areas that would be altered by rejecting the writ-of-erasure fallacy; two are of present interest. One is the doctrine of standing in Establishment Clause cases in which plaintiffs claim injury from laws or regulations that by their words endorse religious beliefs or project a message of exclusion of those who do not adhere to those beliefs. The source of the constitutional injury in such cases purports to be the statute itself. But if the statute (as opposed to its actual or threatened enforcement) causes the injury, the only remedy is repeal or elimination of the statute. But a court cannot repeal a statute nor order a legislature to repeal a statute. That means no judicial order can redress the plaintiff’s injury, depriving her of standing in such cases. This doctrinal change would affect current debates over President Trump’s travel ban, as several plaintiffs are claiming injury from the existence of the executive order and its message of exclusion; standing becomes a problem in that litigation if a court cannot order the repeal of the executive order, the only remedy that would resolve the claimed injury.

A second doctrinal area involves the pre-clearance provisions of the Voting Rights Act of 1965 (VRA), which require certain “covered” (mostly Southern) jurisdictions to clear voting-related laws with the Department of Justice (DOJ) or a federal court. In Shelby County v. Holder, the Court held that the formula for defining covered jurisdictions was constitutionally invalid, such that covered jurisdictions could enact and implement voting-related laws without pre-clearance, something many jurisdictions have done since. But the pre-clearance provisions continue to exist as federal statutes and have not been repealed, erased, revoked, or amended. Shelby County means a covered jurisdiction can disregard the statutory pre-clearance regime without fear of a court enjoining their actions should DOJ attempt to stop it from implementing a non-precleared law. But, Mitchell argues, covered jurisdictions must recognize that the pre-clearance provisions remain as federal law, that a future Supreme Court could overrule Shelby County, and that any new, non-precleared voting-related measure could be challenged and found to violate a now-constitutionally valid VRA. Mitchell suggests that covered jurisdictions should continue submitting laws for pre-clearance, consistent with the VRA, unless and until the pre-clearance provisions are repealed—something that Shelby County did not achieve and that only Congress can do.

This article that I like lots furthers scholarly debates (to which I offer my contributions) about the proper scope and operation of constitutional litigation and constitutional remedies. There are many dimensions to this issue, and Mitchell does not address all of them. He does not specify whether the anti-suit injunctions courts are authorized to issue can prohibit enforcement of the challenged law as to the named plaintiffs (he acknowledges the injunction prohibits enforcement only by the named officials) or whether courts can issue universal/nationwide/”cosmic” injunctions prohibiting enforcement against all persons who might be subject to the law. Mitchell also identifies, but avoids, the debate between departmentalism and judicial supremacy. He need not resolve the debate, because even in a world of judicial supremacy, courts can repudiate prior constitutional pronouncements, empowering the political branches to resume enforcement of these statutes, including retroactively.

If we do resolve those debates in favor of departmentalism and particularized/non-universal injunctions, however, the political branches gain even more power than Mitchell suggests. Consider Shelby County and the VRA’s pre-clearance requirements. Mitchell allows that covered jurisdictions may encounter pre-clearance problems with new laws if a future Supreme Court overrules Shelby County and a future DOJ resumes enforcement. But if the point of Shelby County is that five members of the Supreme Court as it existed in 2013 believed the VRA’s coverage formula unconstitutional and the resulting injunction only prohibited DOJ from requiring Shelby County to obtain pre-clearance for changes to particular voting laws, then DOJ need not wait that long. It could continue demanding pre-clearance from other jurisdictions as to other voting laws, without violating the injunction. Of course, DOJ’s efforts in that direction will fail as soon as they reach court (whether through its action to enforce pre-clearance or a covered jurisdiction’s action to enjoin DOJ from enforcing pre-clearance); courts must follow Shelby County as precedent and find that pre-clearance is constitutionally defective and unenforceable as to the new laws enacted by the new covered jurisdiction.

But Mitchell’s insights into the operation of constitutional litigation and the nature of constitutional remedies maps how this process will play out and the additional steps required. He shows that it is richer and more complicated than the simplistic “the court struck the law down and it is gone forever” narrative in which we operate.

Mitchell’s paper is long and detailed, but wonderfully written and highly readable. It is a significant scholarly work that should change how we think and talk about judicial review and constitutional adjudication.

Cite as: Howard M. Wasserman, A Step Toward a Proper Understanding of Constitutional Litigation, JOTWELL (July 12, 2018) (reviewing Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. __ (forthcoming 2018), available at SSRN), https://courtslaw.jotwell.com/a-step-toward-a-proper-understanding-of-constitutional-litigation/.

Hail to the Chief Justice

Jeffrey Rosen, William Howard Taft (2018).

A bellicose politician is on the warpath. His target: the judiciary. On the stump, he mocks individual judges by name and castigates their rulings. The courts, he declares, should not stand in the way of the needs of the public, much less the energetic executive committed to bringing those needs to fruition. Faced with a hostile Congress, a shortage of judges, and no traditional avenue for self-advocacy, the courts are poorly equipped to respond to these attacks on their own. They need a champion on the outside who can make a case against popular passion and for the rule of law.

The story feels conspicuously modern, but it dates back more than a century. The populist demagogue? Theodore Roosevelt. The champion of the judiciary and the rule of law? William Howard Taft.

Jeffrey Rosen’s new biography of Taft, part of the Times Books “American Presidents” series, is a well-timed salve for our unsettling era. As Rosen explains, unlike Roosevelt—and more recent Presidents—Taft embraced “a constitutional rather than a popular conception of the presidency,” and approached his executive responsibilities with a “judicial temperament.” He showed deep-seated respect for the constitutional prerogatives of the coordinate branches, deferring to Congress on legislative priorities and advocating for judicial independence. That reverence for the rule of law fueled Taft’s judicial career before and after his presidency, helping him to modernize the federal courts and bolster their legitimacy. Rosen’s book introduces us to a figure of dual importance: a humble, thoughtful, and constitutionally principled hero in the White House, and a transformative leader on the Supreme Court.

Taft is the only man to serve as both President and Chief Justice, the culmination of a lifetime of public service across two branches of government. The son and grandson of Ohio state judges, Taft was appointed to the Ohio Superior Court in 1887, at the age of twenty-nine. Two years later he became Solicitor General of the United States; three years after that, a judge on the Sixth Circuit. At the insistence of his wife, Nellie, Taft answered the call of politics, serving in rapid succession as Civil Governor of the Philippines, Secretary of War, Provisional Governor of Cuba, and, after the 1908 election, President of the United States.

Nellie reveled in the hurly-burly of political life and the material trappings of political success. Her husband, by contrast, was never fully comfortable in the political arena, where success increasingly depended on one’s willingness to blur constitutional boundaries. Roosevelt had ushered in a new presidential era, energetically introducing reforms without sweating the constitutional details. This greatly distressed Taft, who believed executive power was necessarily tempered by the limits of the Constitution and respect for the rule of law. For his presidency, Taft adopted a much more circumscribed view of his own powers. He approached Congress with “suggestions” on tariff reform, trust-busting, and environmental protection, but refused to interfere with Congress’s power to legislate. And far from bashing judges, he repeatedly stressed the importance of an independent judiciary, including it as a central theme in his inaugural address in 1909 and on the campaign trail in 1912.

Taft’s constitutional humility in the Oval Office proved too much for Roosevelt, who saw it as a virtual abdication of executive power. Their relationship quickly deteriorated, culminating in Roosevelt’s entry into the 1912 presidential election. Unable to draw attention away from Roosevelt’s dramatics and Woodrow Wilson’s message of economic reform, Taft finished a distant third, with only eight electoral votes.

Leaving the White House after electoral defeat might have depressed others, but it came as a relief to Taft. He had always been happier as a judge than as a politician. Moreover, his lifelong ambition—to be Chief Justice—remained within reach. For the next eight years, Taft worked to stay in the public eye (teaching at Yale, leading the ABA) while his allies lobbied successive presidents to place him in the center chair. Their tenacity paid off. In June 1921, Warren Harding nominated Taft to be Chief Justice. The Senate confirmed him the same day.

Taft’s second act as a chief executive was as lively and inspired as his first had been muted. The new Chief Justice encountered a federal court system that was heavily backlogged and under attack. Using his political skill and the prominence of his new office, Taft immediately set about improving the courts’ operations, public legitimacy, and institutional self-awareness. Free from the constitutional restrictions on lobbying that he had faced as President, Taft personally pressed Congress for legislation to modernize the federal court system. He procured more judges, ended the Supreme Court’s mandatory jurisdiction, advocated for judicial power to make procedural rules, secured funding for a freestanding Supreme Court building, and created the predecessor to the Judicial Conference of the United States. A century later, the federal courts still bear the stamp of Taft’s organizational genius.

Reflecting on these developments, Rosen observes that “Taft chafed as a judicial president and thrived as a presidential chief justice.” This is no contradiction, given that Taft was guided by respect for constitutional government and the rule of law in both executive and judicial life. Fealty to the design of the Constitution restricted Taft’s actions as President, and that same fealty energized him as head of the federal court system. And while Rosen portrays Taft’s devotion to these principles as near-religious at times, at no point does Taft’s commitment feel anything less than genuine, heartfelt, and sincere.

We could use a healthy dose of that commitment today. Our last two presidents have chosen to pursue their agendas largely through executive orders, agency regulations, and pointed political attacks, rather than engaging in the hard work of negotiating with Congress. A disquieting number of legislators and interest groups treat judges as politicians in robes and assail judicial nominees for the sin of having privately held opinions. And cynicism about lawmakers, law enforcement, and the law itself is growing. In an age in which the rule of law is increasingly equated with politics, power, and privilege, Taft’s lived experience and fidelity to deliberative democracy and constitutional government remind us that these ideals are worth defending.

The judiciary, too, can learn from Taft’s example. The Chief Justice was keenly aware that courts cannot function without public legitimacy—legitimacy that in our day (if not Taft’s) is rooted in transparency. Today’s federal courts, however, remain curiously uninterested in making their work broadly accessible to the general public. Electronic court documents hide behind the PACER paywall. The Judicial Conference recently shelved a successful pilot program for videotaping civil proceedings. And with rare exceptions, the Supreme Court will not release same-day audio of oral arguments, let alone allow video-recording. It is hard for the public to build confidence in the rule of law when it cannot readily observe the judicial process or the procedural safeguards that public adjudication provides. A modicum of transparency would yield disproportionately positive returns.

Sensing the moment, Rosen writes that “all three branches today are institutionally equipped, if they choose, to resist these populist threats and defend the rule of law.” Taft’s enduring example, and Rosen’s crisp and engaging depiction of it, remind us that the core values of American democracy remain within our civic grasp, if we allow ourselves to embrace them.

Cite as: Jordan Singer, Hail to the Chief Justice, JOTWELL (June 15, 2018) (reviewing Jeffrey Rosen, William Howard Taft (2018)), https://courtslaw.jotwell.com/hail-to-the-chief-justice/.

Questions of Funding and Compensation on the 50th Anniversary of Modern Class Actions

The modern class action turned fifty last year in the United States, and this year celebrates a quarter-century in Ontario, the first English-speaking province in Canada to enact class action legislation. On these anniversaries, scholars on both sides of the border, and around the world, are taking stock of class actions. A common theme in many of these discussions is whether class actions are achieving their intended purpose. Specifically, do they result in adequate compensation for class members? Or is the temptation for self-interest among plaintiffs’ counsel so great that the interests of class members are inevitably subservient?

Important analyses on these and other critical questions, from doctrinal, comparative, and normative perspectives, are brought together in a special volume of Theoretical Inquiries in Law published in early 2018, entitled Fifty Years of Class Actions – A Global Perspective. Contributions by Elizabeth Chamblee Burch and Brian T. Fitzpatrick tackle the thorny question of compensation from the same starting point—that the entrepreneurial and representative nature of class actions creates risks for under-compensation of class members. They explore different aspects of the problem. Burch focuses on strengthening the role of objecting class members at the settlement approval hearing.  Fitzpatrick focuses on using private claims investment to reduce the risk that plaintiffs’ lawyers will settle for too little. Each contributes to an important discussion about the importance of fairly compensating the class.

Professor Burch begins from the premise that principal-agent problems persist in class proceedings, despite the statutorily prescribed function of the judge to protect the interests of the class. Many provisions in class action rules and statutes in the U.S. and other jurisdictions recognize the need to guard against attorney self-interest with court oversight: judicial approval of settlements; opt-out rights; the ability to object to a proposed settlement; and appeals. While the Subcommittee for Federal Rule of Civil Procedure 23 has recommended a number of proxies by which judges can better determine adequacy of settlement, all fall short because of an information deficit and adversarial void that hamper judges’ ability to maintain robust oversight. Burch focuses on the objection process as the most promising space in which to close the information gap. Identifying the rise of professional objectors (lawyers who routinely challenge settlements, at times simply to extract a nuisance payment from class counsel) as a phenomenon unique to American jurisdictions, she considers “how to encourage noble objectors that benefit class members while staving off those that namely seek rents of class counsel.”

She proposes a ‘leveling up’ of objectors. Sophisticated (and usually represented) objecting class members “can bring to light new information about structural conflicts of interest within the class or between class members and class counsel, as well as information about unfair outcomes.” Burch seeks to incentivize ‘good’ objectors from those who wish to extort money from class counsel. Even well-meaning objectors have no incentive to propose radical changes to a settlement, as fees are only paid if a settlement is approved. ‘Leveling up’ objections would require the public funding of non-profit groups to encourage the socially useful objector. Such funding might come from a self-funding mechanism. (Here, she draws inspiration from Ontario and Quebec; in both provinces, a non-profit organization provides funding for plaintiffs’ disbursements, and in the case of Quebec, legal fees, as well as an indemnity against adverse costs, for successful applicants. In exchange, a percentage of the class’ recovery is levied). If the political will to create a public funding entity is lacking, she suggests an ad hoc approach: judges can direct cy près awards to non-profit objectors. Whatever the source of funding, Burch persuasively argues that properly motivated and publicly funded objectors offer our best hope to ensure judges have the necessary information to monitor attorneys and the settlements they seek to have approved.

Fitzpatrick addresses the problem of suboptimal settlements by focusing on the economics of litigation for class counsel. Because plaintiffs’ attorneys currently bear all the risk for their clients and may be more risk-averse than the defendants, they may decide to settle too early for too little. Fitzpatrick turns to third-party litigation financing as a method to achieve risk-balancing gains: non-lawyer investors purchase some or all of the value of the class’ stake in the litigation in exchange for a percentage of any eventual recoveries. The risk of non-recovery is spread, if not wholly transferred, from class counsel to the funder. The economic theory is that a plaintiff will be less inclined to settle for less than the expected value of the claim, as it has already secured partial payment of the claim from the funder.

Thus far, financiers in the U.S. have avoided funding class actions for, among other reasons, the impossibility of contracting directly with each class member. Indeed, third-party class-action funding has effectively transformed Australia’s opt-out regime into an opt-in regime. The alternative exists in Canada, where judges can approve the payment of a portion of any judgment to the funder, just as they currently enforce a first charge on any recovery for the lawyers’ fee.

Fitzpatrick recognizes four main concerns about whether investing in class actions is socially desirable—fear of more litigation, longer cases, compounding agency costs, and skewing case selection either to only low risk actions or to high risk ones. He is able to succinctly address each concern in turn. An increase in meritorious claims is normatively unproblematic. Longer cases may in fact drive up compensation levels for class members. Agency costs can be addressed by contract (as they have been in Ontario). And, as an empirical matter, financing is unlikely to decrease the number of high probability, low risk cases, even if a marginal number of low probability cases are added. In the end, he concludes that the benefits outweigh perceived costs. In doing so, he contributes to the start of an important conversation both within and outside of the United States on diversifying the financing of entrepreneurial litigation.

The occasion of a milestone anniversary can be an impetus for thoughtful reflection, as well as inspiration for improvement. Burch’s and Fitzpatrick’s articles, as with all of the articles in this volume, make an important contribution to the study of class actions and their possible reform. Both scholars acknowledge the weaknesses of litigation that relies so extensively on economic incentives and risk (in)tolerance. While they aim to address those weaknesses by radically different means, they share a common goal: to secure meaningful justice for absent class members in whose name class actions are brought.

Jasminka Kalajdzic, Questions of Funding and Compensation on the 50th Anniversary of Modern Class Actions, JOTWELL (June 1 2018) (reviewing Elizabeth Chamblee Burch, Publicly Funded Objectors, 19 Theoretical Inquiries in Law 47 (2018); Brian T. Fitzpatrick, Can and Should the New Third-Party Litigation Financing Come to Class Actions?, 19 Theoretical Inquiries in Law 109 (2018)), https://courtslaw.jotwell.com/questions-of-fun…rn-class-actions/.

Human Rights Litigation and the States

Seth Davis and Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018).

It has been almost forty years since the Second Circuit’s landmark decision in Filártiga v. Peña-Irala, which opened the door to human rights litigation in U.S. federal courts under the Alien Tort Statute (ATS). That statute—a creature of the first Judiciary Act in 1789—authorizes federal subject-matter jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” ATS litigation flourished in the decades following Filártiga, but more recently the Supreme Court has imposed new obstacles. In Sosa, the Court limited the scope of the federal common law cause of action that allows plaintiffs to assert violations of international law under the ATS. In Kiobel, the Court imported a presumption against extraterritoriality into ATS litigation, requiring that such claims “touch and concern the territory of the United States . . . with sufficient force to displace the presumption.” And this Term, in Jesner v. Arab Bank, the Court immunized foreign corporations from liability under the ATS. (WNYC’s More Perfect released a terrific podcast on the ATS following the Jesner oral argument last October.)

If federal law and federal courts are less receptive to actions seeking remedies for human rights violations, what about the states? That is the crucial question that Seth Davis and Chris Whytock tackle in their excellent article. They persuasively argue that state courts and state law can play a role in this context, and that the Supreme Court’s restrictive decisions on questions of federal law do not automatically foreclose more sympathetic approaches at the state level.

A foundation of the authors’ arguments is that state law and state courts have a constitutionally recognized power to redress legal wrongs. The basic notion that where there is a legal right, there is also a legal remedy is the “normative core of a state’s interest in providing redress for the victims of human rights violations.” Davis and Whytock support this view with reference to state law, federal law, and international law, as well as broader political theories of corrective justice, social contract, and cosmopolitanism. Although they recognize that a remedy for human rights violations will not be available in every case, courts considering the proper role of state courts and state law must give due weight to a state’s interest in providing remedies. Their argument “shifts the ground of debate; what presumptively seemed a ‘foreign relations’ matter for the federal government alone now appears a remedial matter presumptively for state courts to decide.”

Davis and Whytock then turn to various court-access doctrines that might restrict state remedies for human rights violations. They argue against removal of state court lawsuits to federal court, criticizing in particular removal on the theory that such lawsuits implicate foreign policy concerns. Likewise, they critique the use of the political question doctrine to dismiss suits seeking redress for human rights violations. Davis and Whytock also address personal jurisdiction. Although they recognize that state courts may lack personal jurisdiction over some foreign defendants, they argue that suits based on human rights violations should not be subject to more rigorous scrutiny than suits based on other wrongs, and that a state’s interest in providing remedies for human rights violations strengthens the case that personal jurisdiction is reasonable. Finally, they discuss forum non conveniens, emphasizing that courts must take seriously the requirement that a dismissal is appropriate only when an adequate foreign forum exists. And even when a foreign system is an adequate alternative, a U.S. state’s interest in providing a remedy for human rights violations is a public-interest factor in favor of allowing a case to proceed in the plaintiff’s selected U.S. forum.

Davis and Whytock next examine substantive choice of law. They argue that under either the Second Restatement or interest analysis, courts must consider the forum state’s interest in redressing wrongs, including wrongs that violate human rights. In addition, the Supreme Court’s presumption against extraterritoriality with respect to federal law—and its application of that presumption in human rights cases—does not apply to state law. And they clarify that even when foreign law is chosen, that choice is not fatal if foreign law would provide a basis for the plaintiff’s claim.

Finally, they confront federal preemption. Considering both field and conflict preemption, they argue that preemption analysis should give substantial weight to the state’s interest in providing law for the redress of wrongs. As to states providing remedies for violations of international law, state courts are not preempted from concurrent jurisdiction over the admittedly narrow federal common law cause of action for enforcing customary international law (CIL) that the Supreme Court recognized in Sosa. Even a state-law right of action enforcing CIL more broadly than Sosa endorsed should not be categorically forbidden. The state’s interest must be taken into account, and “critics of state common law remedies for CIL have the burden of showing that foreign relations concerns leave little to no room for state remedial lawmaking.” They close with a discussion of state remedies for violations of treaty-based human rights. Although they recognize that the case for preemption may be stronger in this context, they reject the view that state courts will necessarily face the same limitations as federal courts.

Ultimately, the proper role of the states in human rights litigation is a question of default rules. There is little doubt that the federal government can take steps to block such litigation at the state level if it so chooses—as Davis and Whytock put it: “[w]here a state oversteps, creating an actual foreign relations conflict, the political branches . . . have no shortage of ways of responding.” So the real issue is what states can do when federal political institutions have not spoken with clarity. Davis and Whytock make a compelling case that the default position should not prohibit state-based remedies for violations of human rights.

Cite as: Adam N. Steinman, Human Rights Litigation and the States, JOTWELL (May 21, 2018) (reviewing Seth Davis and Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018)), https://courtslaw.jotwell.com/human-rights-litigation-and-the-states/.

#MeToo Justice

Lesley Wexler, Jennifer Robbennolt & Colleen Murphy, #MeToo, Time’s Up, and Theories of Justice, available at SSRN.

Do we really need to hear more about #MeToo or have we reached the point of saturation? Given the subject of my review, it should come as no surprise that I think there is more to say. What might be a surprise, however, is that I also believe we are approaching saturation. Exhibit A is the backlash that is already in full swing. Overexposure could be bad for #MeToo, but I do not think it will be. The culture of harassment, abuse, and diminishment in which women have existed and continue to exist requires nothing short of a counter-saturation. I say bring it on.

This is where this important article by Lesley Wexler, Jennifer Robbennolt, and Colleen Murphy comes in. The authors interrogate what justice might look like for this historic movement. They conclude that the concept of transitional justice (with some nods to principles of restorative justice) holds great promise. While individualized justice is critical, the authors argue that #MeToo should also pursue and achieve systemic change. The authors land on transitional justice, but caution that its promise will be realized only if two things happen. It must include and address the most marginalized women, and it should take a holistic view of what types of changes will lead to societal transformation.

Tarana Burke started the #MeToo movement well before Harvey Weinstein headlines made their way into our collective consciousness. Burke focused her movement on women of color and marginalized people, with a goal of building community among survivors. It was not until a famous, white, cisgender woman—Alyssa Milano—asked Twitter users to share their stories of sexual harassment and assault using the #MeToo hashtag that the current iteration of the movement was born.

This genesis story is telling. While Milano credited Burke with the hashtag and the original movement, the real power differentials among women are apparent—the movement did not garner national attention until a privileged white woman did something. This lack of focus on intersectionality led to the immediate question of whether #MeToo could really change the status quo. Public shaming may have taken down Harvey Weinstein or Bill O’Reilly in the relative short term, and a (second) jury in our criminal justice system may have convicted Bill Cosby of aggravated assault against one of his many accusers. But what about women who lack the power or the opportunity to take on such giants? Moreover, what about the structures and systems that protected these men and so many others from a day of reckoning? The Time’s Up initiative, created by a group of Hollywood elite, has the potential to move beyond this initial step of calling out the behavior and shaming it. The question the authors wrestle with is how.

The authors first review restorative justice theory, which they define as “a loose collection of practices or mechanisms that share a number of core commitments,” focusing on “offender accountability, harm repair, and reintegration.” Apologies can often go wrong and seldom go right, as in cases in which those accused of sexual harassment blame the victims for being overly sensitive or thin-skinned. Although there are many possibilities for harm repair, such as community activities, therapy, public statements of accountability, and cessation of the behavior, the main remedy remains monetary damages. Unfortunately, women cannot seek money publicly or privately—they are criticized for doing so publicly and their voices are often silenced through non-disclosure agreements if they settle privately. There must be reintegration for both the victim and the perpetrator. While apologies and accountability are important first steps for offenders, the quickness with which some have been reintegrated into their communities and careers (think Mel Gibson) leads the authors to emphasize the primacy of full reintegration of victims.

After assessing how restorative justice values might apply to #MeToo, the authors turn their attention to transitional justice. Restorative justice tends to focus on the perpetrator and the victim, which, while critical, does not necessarily lead to systemic change. Transitional justice can link this individualized restorative response with institutional reform.

Transitional justice is defined as “a broad body of multidisciplinary scholarship and practice concentrating on responses to wrongdoing in contexts of transitions toward democracy and away from extended periods of conflict or repression.” The authors argue that the #MeToo movement is analogous to paradigmatic transitional justice in three important ways. Transitional justice focuses not on the isolated criminal acts, but instead on the “patterns of wrongdoing” that have been normalized. The patterns of wrongdoing occur within a broader background of “pervasive structural inequality.” Finally, the goal of transitional justice is explicit—it is to link the response of the individualized wrongs to the goal of broader institutional change.

Analogs to #MeToo are readily apparent. The focus of the movement is the normalized way in which women have been and are treated. That half a million people responded to the #MeToo call within twenty-four hours of Milano’s initial tweet is telling. The way women are treated is systemic, and women have adapted to endure it. Women around the world face obstacles to equality, and while the degree may vary, the fact of inequality between men and women cannot be denied. Finally, while the #MeToo movement has led some men to lose their jobs, with each resignation comes another attempt to minimize or downplay the scope of the issue. Harvey Weinstein is just one of few bad men, for example. Transitional justice forces a collective counter to these forms of denial while also forcing a recognition of the scope of the issue.

The authors acknowledge that the transitional justice with which we are most familiar—truth and reconciliation commissions in war-torn countries—differ from the #MeToo movement in important ways. But the ideas behind transitional justice still hold promise. The authors also do not commit to what form #MeToo transitional justice will take. Instead, they caution that any attempts must endeavor not just to acknowledge, but to actively include marginalized women, and they argue that the movement must take a holistic approach to the variable challenges that have surfaced.

For what it is worth—and as you might have already surmised—I am a proud feminist. As Chimamanda Ngozi Adichie expressed in 2014, we all really should be. Treating humans equally is not radical at all; treating humans differently based on gender is what should be horrifying to our society. The #MeToo movement is only beginning to chip away at this paradox, but with work along the lines of what Wexler, Robbennolt, and Murphy are producing, I am hopeful that significant change is possible.

Cite as: Brooke D. Coleman, #MeToo Justice, JOTWELL (May 7, 2018) (reviewing Lesley Wexler, Jennifer Robbennolt & Colleen Murphy, #MeToo, Time’s Up, and Theories of Justice, available at SSRN), https://courtslaw.jotwell.com/metoo-justice/.

More Amicus Briefing?

Scott Dodson, Should the Rules Committees Have an Amicus Role?, 104 Va. L. Rev. 1 (2018).

JOTWELL readers do not need me to tell them that Scott Dodson is a leading voice in jurisdiction and procedure. His most recent article, as we have come to expect, meaningfully contributes to the contemporary discussion concerning the proper, and perhaps competing, roles for the Supreme Court and the Civil Rules Advisory Committee in interpreting the Federal Rules of Civil Procedure. Dodson calls for the Rules Committee to take a more active amicus curiae role in Civil Rules cases, suggesting that such an approach can substantially improve the reasoning and resolution of such cases without marginalizing the Court’s adjudicatory role.

Dodson succinctly lays out the current state of affairs in which the Court is largely divorced from the Civil Rules promulgation process, despite nominally overseeing it. This state of affairs has led to the current situation in which the Rules Committee takes exclusive ownership over the Rules drafting process, while the Court takes exclusive ownership over interpreting the Rules. As a result, the Court and the Rules Committee engage in their respective tasks without consulting the other.

Dodson aims to bridge this gap in Rules cases before the Court by way of amicus briefing. He suggests that in Civil Rules cases the Administrative Office of the United States Court’s Office of General Counsel should submit amicus briefing on behalf of the Rules Committee. He argues that such amicus briefing brings three broad advantages. First, it can apprise the Court of relevant legislative facts, such as discovery expenses or judicial-management issues, that inform the policy choices embedded in the Civil Rules. Second, it can alert the Court when the Committee itself is considering changes to the Civil Rule under review. And third, it could offer broader perspectives on how particular interpretations presented by the parties might affect other cases or other rules. Finally, Dodson thoughtfully considers numerous objections to his proposal, ranging from the Solicitor General’s amicus role to Rules Enabling Act concerns.

I find much to admire in Dodson’s piece. Indeed, I applaud Dodson’s strategy that replaces the Court’s overreliance on, as Kevin M. Clermont and Stephen C. Yeazell label it, “folk wisdom” in procedural cases with a properly developed set of legislative facts. I also welcome Dodson’s focus upon the Administrative Office’s General Counsel as an unbiased friend of the court, whose incentive structure links only to ensuring that the Court examines the Rules Committee’s past work and record.

As with any important article, Dodson’s paper leaves the reader wanting to explore the issue further. The value of Dodson’s amicus-briefing approach, which aims to highlight the Rules Committee’s past or ongoing work to the Court, is squarely on point in cases when the Court engages in expository, or interpretive, decision-making in an authentic search for the rule drafters’ legislative intent in Civil Rules cases. Thankfully, the Court regularly engages such Civil Rules cases.

As several scholars have noted, however, the Court does not always engage in a legislative-intent analysis in Civil Rules cases. It often deploys prescriptive, or non-interpretive, reasoning in its Civil Rules opinions, in a process that calls for weighing legislative facts, utilizing technical expertise, and making value judgments. One might label these opinions, which rely primarily upon such prescriptive reasoning as opposed to the drafters’ intent, “procedural policy-change cases.”

In procedural policy-change cases, the overwhelming value of a Rules Committee amicus brief seems less apparent. Take Twombly, for example. Commentators near-universally recognize it as a pronouncement regarding the policy underlying pleading requirements in federal court, not as an interpretation of Rule 8(a)(2)’s text. This is to say, the Twombly Court was not confused as to the original drafters’ intent regarding Rule 8(a)(2)—a problem remediable with additional information that a Rules Committee amicus could provide. The Court had issued Conley, which did consider that intent, decades earlier. Rather, the Twombly Court disagreed with the policy choices those drafters enacted. An amicus brief discussing the intent and purpose of Rule 8(a)(2) would not have changed the Court’s reasoning or conclusion.

Dodson and I share a commitment to Civil Rules cases steering the course closest to drafter intent. Dodson’s proposal furthers that goal because the Justices might be less likely to disregard a Rules Committee amicus brief that draws the Court’s attention to drafters’ intent. But in high profile procedural policy-change cases that Dodson discusses—such as Wal-Mart and Twombly—where the Court exercises its muscle to disagree with the Rules Committee’s policy decisions, we should not expect one amicus brief to turn that tide. Dodson’s strategy still brings the added benefit of laying bare the Court’s naked policy power play by offering a true contrast between the drafters’ intent and the Court’s opinion.

An additional area for continued consideration of Dodson’s amicus strategy involves the interdependent nature of the Civil Rules. Many of the pressing issues that the Court faces in procedural policy-change cases are not amenable to successful resolution by way of litigation. Twombly again offers a key example. Many, including Robert Bone, conclude that the Twombly Court was properly concerned with explosive discovery costs in antitrust cases, but that a narrower remedy, such as a Committee proposal for an early motion for summary judgment in complex cases, presented the better solution.

But the Court lacks the power to craft such new rules. It also lacks the power to make coordinated changes to portions of a Rule not under review. For example, only the Rules Committee could create a safe-harbor provision in Rule 11 as part of its revisions to the Rule in the aftermath of the Pavelic & LeFlore opinion, which held that entire law firms could not be sanctioned under Rule 11. These are structural dynamics inherent in the divisions of power between the Court and the Rules Committee. Dodson does not suggest that an amicus brief, from any entity, could overcome this hurdle. Rather, I raise the point to highlight that many of the ills in the Court’s Civil Rules jurisprudence result not from poor information gathering, a problem that Dodson’s strategy readily resolves, but from institutional design, a defect Dodson’s strategy does not address nor did it intend to. Good ideas need not resolve every conceivable difficulty.

The Court often wades into procedural policy-change cases woefully under-informed. Dodson’s amicus briefing proposal would be of immense value in numerous cases. His approach is not a panacea, nor does he advertise it as such. As Bone has noted, the Civil Rules are “interdependent.” Procedural policy-change cases (i.e., the headline-making cases that we care about most) almost always require multiple and simultaneous rule amendments that are “tightly coordinated.” Only the Rules Committee wields this type of drafting power.

I hope you will read Dodson’s article soon. I am confident you will find it as stimulating and thought-provoking as I have.

Cite as: Lumen N. Mulligan, More Amicus Briefing?, JOTWELL (April 23, 2018) (reviewing Scott Dodson, Should the Rules Committees Have an Amicus Role?, 104 Va. L. Rev. 1 (2018)), https://courtslaw.jotwell.com/more-amicus-briefing/.