A slow, insidious creep of procedural law has been systematically eroding the private rights enforcement regime. For years, many of us proceduralists have sounded a clarion call over this unrelenting, incremental attack on private enforcement of substantive rights. Rights and Retrenchment in the Trump Era by Stephen Burbank and Sean Farhang unpacks this troubling phenomenon and offers us a cogent way for understanding how we got here. Burbank and Farhang do an excellent job of unearthing the history and future prospects of this entrenchment, illuminating through archival research, data, and theory how various institutions have taken a swipe at private enforcement.
The authors explore how Congress, the federal court rulemakers, and the Supreme Court have strategically sought to undermine substantive law, with varied success. Burbank and Farhang ultimately conclude that the Supreme Court is the winner in rights retrenchment—the most successful player in the counterrevolution against federal litigation vis-à-vis the other branches of government—for reasons of competency, opportunity and lack of democratic accountability. In pinpointing the Court as the victor, Burbank and Farhang focus our attention and effort toward resurrecting precious substantive rights in jeopardy. Their work is not only critical to understanding the problem, but represents an important step toward designing prescriptive measures. For those of us invested in protecting the rule of law—whether it be civil rights, environmental protection, consumer safety, or immigration policy—this article is essential reading for understanding the complexity, dynamism, and relentless way in which process (shrouded in neutrality and legalese) can quietly undercut democracy and more fundamentally humanity.
The article grows out of the authors’ prior book, Rights and Retrenchment: The Counterrevolution Against Federal Litigation. The new work not only summarizes the salient points of the book, but builds from this solid foundation and offers predictions about what lies ahead in an increasingly partisan and unpredictable political landscape. Unfortunately, Burbank’s and Farhang’s conclusion is troubling; they “expect that the Court’s anti-private-enforcement posture will be sustained, if not deepened, in the foreseeable future.” What accounts for this longevity, resilience and growth? The authors offer much food for thought.
They start by explaining how this all started—with the rise of the litigation state in the 1960s. Democrats, disillusioned with the American Administrative state’s lack of capacity or interest in social and economic regulation, set out directly to enforce legislative mandates through private lawsuits and statutory rules. With Congress increasingly controlled by a different party than the White House, tension increased between Congress and the President, giving birth to a greater private enforcement regime. The Democratic-controlled Congress enacted statutes establishing private rights of action with fee-shifting provisions and damages enhancements. Burbank and Farhang demonstrate that these litigation incentives worked, tracking a steady rise in the federal private statutory litigation rate from 1933 to 2014.
But the rise of the litigation state would not go unchallenged. The authors describe an orchestrated counterrevolution on the part of Congress, the federal rulemakers, and the Supreme Court to leave untouched the substantive law, but to destabilize the tools used for their enforcement. Each branch had varying success.
Congress failed at its attempt. Retrenchment legislation advocated in the 1980s by John Roberts (yes, that John Roberts, then in the Justice Department) and Antonin Scalia (yes, you guessed it, then a law professor) failed. Republican support for anti-litigation measures was largely unsuccessful, from the Reagan era and beyond, even with unified control of Congress in the 1990s. Republicans succeeded at enacting the Private Securities Litigation Reform Act (“PSLRA”) and the Prison Litigation Reform Act (“PLRA”) with Democrat Bill Clinton in the White House and the Class Action Reform Act (“CAFA”) with President George W. Bush in the White House. But they were unable to do more because of the “endowment effect”—people’s disdain for advocating for rights removal. While Republican legislators have largely abandoned their rights-retrenchment program, a new wave began in 2014 with unified control of Congress and has continued into the Trump era. However, with deterrents like the endowment effect and the filibuster, Burbank and Farhang doubt the beginning of a revolutionary litigation retrenchment coming from Congress. Their doubt may be even more justified today, given that the Democrats recaptured the House in the 2018 elections since this article was written. In fact, Burbank and Farhang flag an interesting twist—the growth of Republican-led bills to create private rights of action (complete with attorneys’ fees) for those seeking to enforce a traditionally conservative agenda.
The federal rulemakers have not fared much better in the counterrevolution. The authors analyzed original data from 1960 to 2014, seeking to understand the behavior of the Civil Rules Advisory Committee. Few rules proposals have limited private enforcement, but the ones that have been adopted have steadily disfavored plaintiffs. The authors conclude that anti-enforcement efforts by the Committee have not been very successful because of checks and balances (including public transparency and participation by stakeholders) added to the rulemaking process in the 1980s. They do flag one marked exception—the influence of Chief Justice Roberts on the amendment of the discovery rules in 2015. But class action reform efforts have not followed suit. The rulemakers did not take the bait—passing on many controversial proposals aimed at issue certification, ascertainability, and “picking off” plaintiffs. The authors give a shout out to the rulemaking process—its “restraint, thoroughness, and inclusiveness”—and the Advisory Committee members themselves when explaining why this institution has played a more limited counterrevolutionary role.
The Supreme Court has been the most successful at retrenching rights enforcement. Unlike Congress and the federal rulemakers, the Court is immune from politics and largely free from public scrutiny and participation respectively. The Court thus has achieved through interpretation (some would say rewriting) of the Federal Rules what others could not do through legislation or rule amendment. With an increasingly conservative Supreme Court, plaintiffs’ probability of successfully litigating private enforcement issues has declined over the last 40 years, to the point where “by 2014 they were losing in the vast majority of cases.” Burbank and Farhang share some gripping statistics:
By 2014 . . . the pro-private-enforcement side was losing an estimated 86% of the time, with conservative justices voting against private enforcement 90% of the time. Over the same period, the probability of a pro-private-enforcement vote by liberal justices actually increased from 67% to 78%. The distance between liberals and conservatives grew from 30 percentage points in 1970 to 68 percentage points in 2014 . . . .
The authors contend that ideology has played a greater role in the justices’ votes over time and has created a greater schism among the justices when it comes to private enforcement rules than the substantive law itself.
The article concludes by offering insightful institutional justifications for why the Supreme Court has been most effective in the counterrevolution. First, the Court can more easily take unilateral action by a simple majority vote in controversial cases. Second, as a branch of government not chosen by the electorate, the Court is more immune from political influence. Third, the Court is more free to make policy-oriented decisions safe from a congressional course correction because of party polarization and congressional gridlock. Finally, the Court’s relative obscurity allows it to make retrenchment decisions that fly largely under public radar. These institutional attributes create the perfect storm for effective backlash to the 1960s rise of the litigation state.
Burbank and Farhang end on a sobering note, concluding that given the Court’s current and potential future composition, it will continue to lead the private rights retrenchment movement. Rights and Retrenchment in the Trump Era challenges us to think about this state of affairs. Given the ongoing violation of constitutional norms that characterize the Trump Administration, it behooves us to consider the role of all government institutions, particularly the Court, and to hold them accountable to protect the rule of law.
Mila Sohoni, The Lost History of the “Universal” Injunction
, 133 Harv. L. Rev.
__ (forthcoming 2020), available at SSRN
National and universal injunctions have been in the news. In the wake of an outpouring of scholarly interest in decrees that offer non-party protections, especially in litigation with the federal government, the Supreme Court has taken notice. Invoking Sam Bray’s view of the national injunction as “unthinkable” by standards of “traditional equity,” Justice Clarence Thomas argued in a concurring opinion in Trump v. Hawaii that such injunctions “appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts.” The Trump Department of Justice has issued guidance to its civil litigators, encouraging them to contest the proposed issuance of universal decrees. And members of Congress have considered legislative fixes that would narrow federal equity power.
Many fixes have been proposed and some will no doubt be adopted, particularly as federal courts grow more cautious about issuing such decrees. But as Mila Sohoni argues in The Lost History of the “Universal” Injunction, it may not make sense to frame any restrictions as constitutional limits on the remedial authority of federal courts. Adjusting the exercise of equitable discretion is one thing; curtailing equitable authority on constitutional grounds is quite another.
In suggesting that the absence of historical support from equity’s past placed the national injunction beyond the constitutional limits of federal judicial power, Justice Thomas adopted an interpretive approach to federal judicial power that one might term equitable originalism. Such an approach defines the power of the federal courts by reference to the “days of the divided bench,” when courts of law and equity administered separate remedial forms. On such a view, federal courts would refer to the practice of the High Court of Chancery, circa 1789, to define equitable power today.
One might contest such an approach to defining judicial power on any number of grounds. For starters, times change, and the remedial demands of modern life change with them. Since the Supreme Court’s decision in Brown v. Board of Education, the remedial needs of modern constitutional litigation have pressed the federal courts to grant forms of structural relief that one might struggle to analogize to the practice of the High Court of Chancery. Chancery administered complex remedies in appropriate situations, but it largely steered clear of public law matters. One might also observe that focusing on the practice of the High Court of Chancery in isolation might slight the package of judicial remedies that were administered in law and equity. In truth, much of eighteenth-century judicial oversight of government activity occurred in the common law courts in suits for damages and by way of writs of mandamus and certiorari. To the extent one looked only at equitable remedies in public law, one might too narrowly define the range of remedies that citizens (of the United States) or subjects (of Great Britain) could invoke at the relevant moment in history.
Sohoni offers another basis on which to question judicial power on the lessons of history. She documents a collection of non-party protective orders that date from well before the heyday of the Warren Court. Through a careful sifting of historical sources, Sohoni has located many early decrees and mandates, including the terms of the actual injunctions. She demonstrates that the Supreme Court and many lower federal courts granted non-party protective orders as early as 1913. Sometimes these broad remedies ran against the federal government and federal officials, sometimes against state officials. But their operation outside of formal class litigation blocked government officials as a more general matter, thus conferring benefits on parties not before the court.
Needless to say, the Supreme Court occupies a place in the Article III hierarchy different from that of the lower federal courts. As a result of their finality and nationwide application, orders issuing from the Court have the quality of settling questions of law and of conferring a species of non-party protection on all affected individuals within the United States. One can thus argue that the Court’s power to issue broad orders does not necessarily establish a similar power in lower federal courts to settle questions on a national basis. And before the rules governing class certification were amended in 1966 to allow for injunctive civil-rights classes, federal courts applied rather less formal rules for the provision of class-wide relief than they do today. Some early non-party protective relief may have issued where the plaintiff, although appearing alone on the pleadings, was viewed as representing a class of claimants.
On the other hand, national injunctions undermine both the rule barring non-mutual preclusion against the government and the desire for limited decisions that allow for the percolation of important issues of constitutional power in the lower courts. Some modesty and rectitude in the issuance of non-party protective orders should commend itself to all levels of the Article III judiciary.
But Sohoni argues that it does not make sense to frame operational concerns with the administration of relief in terms of Article III judicial power. As she observes, “[t]here is only one ‘judicial power,’ and that power includes the power to issue injunctions that protect those who are not plaintiffs.” Sohoni would invite the participants in the debate to reframe the issue in policy and prudential terms and take the threat of Article III invalidation off the table. Such an approach would leave a series of constitutional protections in place, protections attending to the due process interests of those whose claims have been jointly presented in the form of a class action. Defendants may have a due process right to bind class claimants who join together, just as plaintiff class members have a due process interest in adequate representation and in avoiding litigation that lumps them unfairly together with folks who do not share their interests. Class action law has evolved to account for these due process concerns, growing more punctilious over time.
Sohoni’s lost history suggests that those who propose to articulate constitutional limits on the scope of injunctive relief might better frame their concerns in due process rather than in Article III terms. Such an approach would have the added advantage of binding the state courts in their administration of non-party relief and would thereby encourage the Supreme Court to consider, from a somewhat broader perspective, the consequences of any constitutional adjustments.
Merritt E. McAlister, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals
, 118 Mich. L. Rev. __
(forthcoming 2020), available at SSRN
Among the hallmarks of our federal court system are judicial opinions. Federal judges do not just bang their gavels and declare a winner—their decisions are memorialized in published opinions that recount the facts of the case, lay out the relevant legal framework, grapple with the parties’ arguments, and explain why the law supports one side’s contentions over the other’s. These opinions are released not just to the parties, but to the public—allowing law students, legal commentators, and appellate courts alike to scrutinize and critique the court’s reasoning.
At least that is how it used to be. As Merritt McAlister highlights in “Downright Indifference,” the vast majority of federal cases today are decided in “unpublished opinions.” That term describes any opinion that a court deems nonprecedential. But the distinguishing feature of unpublished opinions is their brevity. Because these cases involve routine issues resolved by settled precedent, the theory goes, courts need not expend resources to issue reasoned opinions that respond to the parties’ arguments. Instead, unpublished opinions succinctly explain—often in just a few sentences—who won and who lost.
Unpublished opinions have received no shortage of criticism in recent years. Some have argued that courts strategically issue unpublished opinions in qualified immunity cases to avoid establishing federal constitutional rights, thereby perpetually shielding officers from civil rights suits. Others have criticized unpublished opinions—many of which are unavailable on legal research databases—as undermining the transparency of courts.
McAlister adds a new criticism to the mix: Unpublished opinions deprive litigants—pro se litigants, especially—of a reasoned decision that is essential to procedural justice. Plaintiffs of course care about the substantive outcome of their cases. But independent of that outcome, McAlister contends, plaintiffs also care about the process they receive—about whether a decisionmaker acknowledges their concerns and meaningfully addresses their arguments. And unpublished decisions, by deciding disputes with terse (if any) reasoning, fail to further procedural justice values that litigants yearn.
It was not always this way. Unpublished decisions are a relatively new phenomenon. Federal courts of appeals began issuing them in the 1960s in response to an exponentially increasing caseload. So one would think that the sharp rise in the percentage of cases decided in unpublished opinions—from 11% in 1981 to nearly 89% in 2016—corresponds with an increase in caseload volume. But that would be wrong. McAlister digs up the numbers and demonstrates that, while the number of appeals in most circuits has decreased, the number of unpublished opinions has continued to go up.
The rise in unpublished opinions does, however, correlate with another figure: the rise in the number of appeals filed by pro se litigants. And this gets to McAlister’s provocative thesis: By deciding so many cases in unpublished opinions largely devoid of reasoning, courts implicitly suggest that pro se litigants and their problems are not worth judicial time. Indeed, McAlister characterizes unpublished opinions as the bedrock of a two-tier justice system in which courts resolve most cases—all but the “important” cases brought by “elite” counsel—with cursory, nonprecedential decisions that receive little judicial oversight.
So unpublished opinions, when properly understood, are perhaps part and parcel of a phenomenon discussed in previous jots: A concerted effort by federal courts to close the courthouse doors on litigants and to constrict the relief provided to those who manage to sneak their way in. Unpublished opinions routinely affirm lower court judgments against pro se litigants, immigrants, and prisoners. And because these opinions largely lack independent reasoning—they often reject the petitioner’s arguments solely because the appellate court finds “no reversible error”—courts can insulate their decisions from scrutiny by an en banc panel or by the Supreme Court of the United States. Unpublished opinions, therefore, allow courts to systematically shun certain litigants’ claims and deprive them of a path for recourse.
What is the solution to this troubling trend? McAlister offers a practical, if limited, suggestion to judges: Show your work. The article argues that unpublished opinions should at least explain the basis for the court’s conclusions and demonstrate that the judges understood and considered the parties’ arguments. Such a move wouldn’t solve all the concerns associated with unpublished decisions, but it would improve what has become the dominant method of judicial decision-making.
Most importantly, reason-giving would demonstrate more respect for pro se litigants and others who may feel marginalized by the justice system’s handling of their disputes. By responding to the parties’ arguments and offering reasoning independent of the lower court’s decision, judges would demonstrate that they have heard the litigants and meaningfully assessed their claims. But the perks of reason-giving do not stop there—it would also promote judicial candor and perhaps even ensure greater accuracy in decision-making. McAlister cites Welch v. United States to illustrate her point. There, in an unpublished order, the Eleventh Circuit denied a certificate of appealability to a pro se litigant on the ground that “he ha[d] failed to make a substantial showing of the denial of a constitutional right.” The Supreme Court reversed, explaining in a 15-page opinion why the Eleventh Circuit ought to have granted Welch a certificate of appealability. One may wonder how many other unpublished decisions reached results that were not as straightforward as their conclusory reasoning would suggest. At least a few—last term the Court summarily reversed and vacated an unpublished Ninth Circuit opinion denying officers qualified immunity, and it recently granted cert in another unpublished Ninth Circuit opinion addressing whether the Securities and Exchange Commission can obtain disgorgement as a remedy for securities violations.
McAlister provides a valuable contribution by criticizing unpublished opinions from the perspective of those for whom these opinions are written: the litigants. And she offers a practical solution that would not require courts to overhaul their prevailing method of decision-making. Whether federal courts will implement McAlister’s proposal—issuing reasoned opinions for every case that comes before them—remains to be seen.
The views set forth herein are the personal views of the author and do not necessarily reflect those of his employer.
Cite as: Ryan Azad, Decision-Making in the Dark
(November 27, 2019) (reviewing Merritt E. McAlister, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals
, 118 Mich. L. Rev. __
(forthcoming 2020), available at SSRN), https://courtslaw.jotwell.com/decision-making-in-the-dark/
Francis E. McGovern & William B. Rubenstein, The Negotiating Class: A Cooperative Approach to Class Actions Involving Large Stakeholders, Duke L. Sch. Pub. L. & Legal Theory Series No. 2019-41
(June 13, 2019), available at SSRN
A common criticism of modern academic legal writing is its lack of usefulness in the real world of practice. A common criticism of writing directed toward solving workaday legal problems is its lack of theoretical sophistication. Neither of these criticisms can be levied against the new paper by Francis McGovern, a Special Master in the National Prescription Opiate Litigation multidistrict litigation (MDL), and William Rubenstein, a consulting expert to the MDL court. The paper is dazzlingly conceived, and Judge Dan Polster, who is presiding over the Opiate MDL, has employed the proposal and its reasoning to find a solution to one of today’s most intractable mass torts.
The proposal harnesses Rule 23 to a new purpose: to create a class action designed specifically to negotiate a settlement. Today class actions are certified to litigate claims and, more controversially, to settle them. But this proposal is different. It forms a class around a specific settlement structure, in advance of negotiating the settlement itself; in effect, without knowing whether the defendants will settle or for how much, the class agrees about how the proceeds of a possible settlement will be distributed among class members. Class members have a right to opt out once the structure is known, so those dissatisfied with the proposed distribution plan may exit and the defendants may know in advance of negotiations what the binding effect of the settlement will be. Should a settlement be achieved, class members, who at this point will know what their share of the settlement will be, then vote to approve or reject the settlement, with approval requiring the favorable vote of a supermajority. Class members also retain rights to object to the settlement before the judge decides whether to approve it.
This new form of class action is designed specifically for what they coin “heterogeneous classes.” In a “homogeneous class,” all class members have small claims. No class member has an incentive to opt out and pursue separate litigation because individual litigation would cost more than the claim is worth; as a result, the defendant can be confident that, in negotiating a settlement, there will be no opt outs and no knock-on litigation. In a heterogeneous class, some individual claims are large enough to be worth pursuing. Hence, when a defendant negotiates a settlement with the class, the defendant must hold back some money or negotiate escape clauses to hedge against class members with valuable claims opting out. That dynamic prevents the class from harvesting the “peace premium:” the extra amount that a defendant would be willing to pay to make the entire litigation go away once and for all.
Enter the negotiation class action. Before commencing negotiations with the class, the defendant knows who is in the class and who will be bound if the court approves any ultimate settlement. As the authors argue, it behooves the putative class members and class counsel to establish a settlement structure that will keep class members with large-value claims from exercising their opt-out right. With those large-value claimants remaining in the class, the defendant can obtain global peace, while class counsel can negotiate from a position of strength, capture the peace premium, and divvy up the proceeds of any settlement according to the agreed-on distribution plan.
McGovern and Rubenstein bolster their proposal with insights from the academic class-action literature. Agency costs—the fear that the class’s agents (the representatives and counsel) will sell out the interests of the class to enrich themselves—represent one of the great concerns of class actions. The traditional responses to agency costs include enhancing the agent’s loyalty (by requiring adequate representation), giving the class members voice (by allowing them to intervene and object), and permitting them to exit (by providing an opt-out right). The authors suggest that the negotiation class action employs a novel, fourth approach to reduce agency costs: cooperation. At the same time, the negotiation class action relies on traditional mechanisms: exit (through the initial opt-out right) and voice (through the right to object to the settlement). The authors also offer a new voice mechanism, borrowed from the ALI’s Principles of Aggregate Litigation and from bankruptcy reorganization, of requiring supermajority class approval of the settlement.
The negotiation class action is both a brilliant and a brilliantly flawed proposal. Harnessing the ALI’s supermajority voting requirement to the class-action context, in which voting rights can be employed without doing violence to the principle of litigant autonomy that has otherwise doomed the ALI’s proposal, is a clever way to give class members more voice than the often-ineffective route of filing an objection to a settlement. At the same time, a voting-rights proposal generates more questions than it answers: What is the proper supermajority (66%? 75%? 90%?)? How are votes counted (one person, one vote? weighted based on claim value? weighted based on other considerations, such as a class member’s location or claim strength?)? And is the majority calculated on the basis of the votes cast or on the basis of the class size (an essential question when class members may not be easily found or when small-claim class members may not bother to return their ballots)? The devil of the proposal lies in such details, and the authors only advert to these issues without providing a framework for thinking about them.
Some theoretical underpinnings of the proposal are also debatable. The existence of a peace premium has become an article of faith in some academic circles, despite only a modicum of evidence that it might exist in the real world of aggregate-settlement negotiation. Another academic difficulty is the argument that the concept of cooperation is a fourth strategy to deal with agency costs. It is not; cooperation assumes away agency costs or, at best, is a way to execute a loyalty strategy. A simple tell reveals the weakness of this cooperation strategy: to ensure that agency costs do not infect the initial intra-class negotiation on the proper settlement structure, the authors must rely on strategies of exit (opt-out rights) and voice (objections and supermajority voting).
These concerns are perhaps troubling only to an academic. More practically troubling is the idea of the heterogeneous class. Claims of class members may be heterogeneous along a number of vectors. One vector—on which the authors build their proposal—is differences in the amount of damages that a class member suffers. In this regard, the authors’ idea creates a new label (“heterogeneous claims”) for an old principle—existing case law recognizes that claims of different amounts do not necessarily create internal differences or conflicts sufficient to scuttle class certification.
But another vector is the comparable strength or weakness of claims, in light of differences in applicable substantive law, defenses, or evidence. Class certification of heterogeneous mass torts with these characteristics often founder against one or more of the elements necessary to attain certification (commonality, typicality, adequacy of representation, or predominance). What Richard Nagareda called the pre-existence principle, which seems to underlie the Court’s decisions in Amchem and Wal–Mart, provides that these elements cannot be satisfied by a common negotiation strategy or distribution plan. It becomes difficult to imagine that negotiation classes could be certified except in cases in which the only relevant differences among class members is the amount of damages they suffer. But these are the cases in which a novel negotiation class action is least needed, for certification of a litigation or settlement class action is already possible.
The advantage that the negotiation class may offer over litigation or settlement class actions is a means to keep large-scale claimants in the class. But these claimants will remain in the class, rather than opt out, only if they perceive that the distribution plan negotiated at the outset favors them—that they stand to gain more from the class action than from individual litigation. A negotiation class action might promise more gain for a number of reasons: because they share in a peace premium, because they can spread litigation costs among all class members, or because the settlement structure overcompensates them in relation to small claimants. The first possibility, on which the authors seem to hinge the proposal, is speculative—in no small part because, once the defendants know the distribution plan, they can game their negotiating strategy accordingly. Unable to use the possibility of large-claimant withdrawal as leverage to negotiate a sweeter deal, class counsel might be negotiating with one arm tied behind its back. The second possibility is not unique to negotiation class actions but is shared with litigation or settlement class actions. And the last possibility raises disqualifying conflicts of interest within the class—conflicts of the kind that cratered the settlement class actions in Amchem and Ortiz.
Given its conservatism on class actions, the Supreme Court would almost surely “disapprove th[e] novel project” of negotiation class actions, as it disapproved “trial by statistics” in Wal-Mart. At best, the device might find use in a narrow swath of class actions in which claims are heterogeneous only with respect to the amount of damages that class members suffered. Time will tell, and the early returns are coming soon—the order certifying the Opiate Litigation negotiation class action is on appeal.
It pains me to be skeptical. The need to create useful solutions to resolve the intractable problem of mass torts is palpable. And the authors’ proposal is one of the most promising and innovative developments to come along in a great while.
Cite as: Jay Tidmarsh, The Negotiation Class Action
(November 13, 2019) (reviewing Francis E. McGovern & William B. Rubenstein, The Negotiating Class: A Cooperative Approach to Class Actions Involving Large Stakeholders, Duke L. Sch. Pub. L. & Legal Theory Series No. 2019-41
(June 13, 2019), available at SSRN), https://courtslaw.jotwell.com/the-negotiation-class-action/
Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard, Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions
, NYU Law and Economics Research Paper No. 19-31 (July 15, 2019), available at SSRN
Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard have authored a provocative empirical study of attorney fee awards in securities fraud class actions. Complementing an existing array of studies, they focus on the subset of mega-settlements—those in excess of $100 million dollars—such as the $186.5 million fee award in a securities action against Petroleo Brasileiro SA, in which the plaintiffs’ attorneys claimed to have worked 324,307 hours on the litigation to obtain a $3 billion settlement. Their conclusions are certain to provoke discussion, if not strenuous dissent: namely, that the lure of mega-fees in certain securities cases induces many lead counsel to make work, rather than to work hard.
The authors situate their study in the reforms Congress envisioned in enacting the Private Securities Litigation Reform Act of 1995 (“PSLRA”). This legislation limited fee awards in securities class actions to a “reasonable” percentage of the settlement. The study included every securities class action filed in federal court between 2005 and 2016, a total of 1719 cases, comparing fee requests and awards in the highest-stakes cases with those in other securities class actions. The authors wanted to test whether attorneys were investing more time in high-stakes cases and if the needs of these cases drove the expenditure of additional time or merely rove the desire to justify a higher fee award.
The authors investigated five hypotheses. First, courts rarely reject fee awards, but are more likely to reject fee awards in higher-stakes litigation than in low settlement values. Second, plaintiffs’ attorneys work significantly more hours in the top decile of settlements and receive significantly higher fees. Third, defendants mount more aggressive defenses in higher-stakes litigation, thereby raising the marginal benefit of more work by plaintiffs’ attorneys (the “work hard” hypothesis). Fourth, high-stakes litigation encourages plaintiffs’ attorneys to inflate their hours by doing work that is not necessary (the “make work” hypothesis). Finally, the authors posited that fee award multipliers would not track litigation risk.
Mega-settlements are not the norm: 90% of the actions resulted in a settlement under $50 million and attorneys’ fees under $10 million. The top decile however, differed considerably. The mean top decile settlement was $295.5 million and the mean attorney fee award was $39.5 million. The top decile of mega-settlements had the highest attorney hourly fee, at $938.30.
The authors reach a number of interesting–if not remarkable–conclusions. Plaintiffs’ attorneys put in far more hours in the top decile of settlements and are rewarded with higher fees. Some of the increased hours may have resulted from attorneys doing work that was not necessary, especially in cases with multiple lead counsel. For example, attorneys may engage in unnecessary or duplicative discovery and motion practice across numerous law firms, especially where the defendant’s egregious conduct was patently evident. The authors found evidence that attorneys may work less efficiently in cases with the largest stakes.
With regard to control of attorney fee awards, the judicial system assigns oversight to two actors: the class representative and the court. The PSLRA introduced the requirement that the largest institutional investor represent the class of shareholder claimants. The authors express skepticism–documented in previous studies—that institutional shareholders are the consistent, active watchdogs that Congress envisioned when enacting the PSLRA. But the authors conclude that judges do not serve as a meaningful check on fee awards, more often than not willing to sign off on mega-fee requests. If the plaintiffs’ attorneys accompanied their fee requests with a lodestar check, courts were less likely to reject the fee award. Generally, courts do not use a multiplier to reward plaintiffs’ attorneys for taking on riskier cases., although they do use a multiplier to reward attorneys for litigating more egregious securities violations, even though these cases pose less, not more, risk for them.
This study is worth reading because it carves out high-stakes, high-settlement cases from the universe of all securities settlements. As such, it seeks to identify and explain the agency costs entailed in these significant cases, ultimately with implications for shareholder claimants. Their general conclusions seem certain to provoke protests from the plaintiffs’ bar, as well as the judges who approve the fee requests. It additionally presents the tantalizing question whether mega-fees in other types of mega-settlements—mass tort litigation, for example—experience the same hydraulic forces that induce attorneys to “make work” for higher fees.
Cite as: Linda S. Mullenix, Is Greed Good? Mega-Fees in Securities Fraud Class Action Mega-Settlements
(October 30, 2019) (reviewing Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard, Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions
, NYU Law and Economics Research Paper No. 19-31 (July 15, 2019), available at SSRN), https://courtslaw.jotwell.com/is-greed-good-mega-fees-in-securities-fraud-class-action-mega-settlements/
- Matthew Erie, The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution, __ Va. J. Int’l L. __ (forthcoming 2020), available at SSRN.
- Will Moon, Delaware’s New Competition, __ Nw. U. L. Rev. __ (forthcoming 2020), available at SSRN.
Fascinating developments are afoot in other countries’ courts. Recent articles by Matthew Erie and Will Moon offer terrific insights into a variety of innovative developments in foreign business courts. These articles have implications for those interested in procedural innovation, the development of legal institutions, transnational governance, the international development and influence of the common law, the role of courts in establishing and maintaining the rule of law, and the role of U.S. courts in transnational litigation and as an international judicial leader.
Erie’s article describes the rise of “new legal hubs” (NLHs) across “Inter-Asia,” including in Hong Kong, China, Singapore, Dubai, and Kazakhstan. Erie defines an NLH “as a ‘one-stop shop’ for cross-border commercial-dispute resolution, often located in financial centers, promoted as an official policy by nondemocratic or hybrid [democratic and authoritarian] states.” NLHs have been established over the past few decades—some as recently as earlier this year. These new institutions establish courts in combination with arbitration centers and mediation services, often housed in the same state-of-the-art buildings.
Erie, a legal anthropologist at Oxford, conducted extensive empirical research in five jurisdictions that are home to NLHs. The article contains a wealth of fantastic details and insights about the history, political economy, and functioning of these courts and legal centers. It explores the role of lawyers and legal culture in the creation of legal institutions and depicts procedural innovations. These courts tend to exclude the local law and local language in favor of common law procedural and substantive law and English language. The Dubai International Financial Center’s court, for example, allows its judgments to be converted into arbitral awards, potentially allowing for international enforcement as if they were arbitral awards. Singapore is experimenting with merging arbitration and mediation into a procedure known as “Arb-Med-Arb” that allows, among other things, for consent awards to be accepted as an arbitral award. China offers “smart courts,” integrating artificial intelligence, big data, and machine learning into the adjudication process to minimize over-burdened court dockets and increase access to justice, particularly for online disputes. Courts in NLHs highlight the role of courts in relation to arbitration and other modes of dispute resolution.
In addition to these innovations, Erie’s analysis places NLHs in a global context that is important for understanding the role of courts and law on the international plane. As London and New York take themselves down a notch in global influence, they create an opening for other providers of legal services, such as Singapore and Hong Kong, to step into the market for international commercial dispute resolution. NLHs seem to catalyze globalization, facilitating cross-border commercial transactions. They also “exist in relation to one another . . . as a mainly decentralized network.” They enter non-binding agreements to enforce each other’s judgments and they contribute to our understanding of how judges in different jurisdictions engage in dialog.
But Erie’s central proposition is that despite the appearance that NLHs facilitate globalization, NLHs may conflict with their host states, creating thorny conflicts between the rule of law and nondemocratic governments. In part because NLHs operate in “exceptional zones”—carve-outs from the rules that generally apply to the rest of the country—they develop and apply “bespoke rules and institutions that differ from those of the host state.” “But their very exceptionality . . . can cause an array of conflicts with the host state, from institutional competition and jurisdictional turf wars to political rivalries and ideological dissonance.” Thus, “NLHs demonstrate the potential and fragility of ‘rule of law’ in nondemocratic states that promote globalization against trends in the West.”
This rich account of NLHs in Inter-Asia pairs well with Moon’s article, which focuses on specialized business courts in offshore jurisdictions such as the Cayman Islands, the British Virgin Islands, and Bermuda. Moon describes these foreign nations as “Delaware’s new competition.” Like Delaware, they offer permissive corporate governance rules and specialized business courts, attracting publicly traded American companies to incorporate there. Moon makes an important contribution to the corporate-governance literature, continuing debates about Delaware’s role started by Roberta Romano in the 1980s.
Most interesting to students of courts is Moon’s description of these offshore islands’ new specialized commercial divisions. Like the courts in NLHs, these courts have hired judges with business law expertise, often foreign individuals who are well respected judges in their home states (often the UK). Indeed, some people serve as judges for NLHs and offshore states and as international arbitrators. Also like NLH courts, offshore business courts incorporate a common law tradition and apply common law substantive and procedural law.
The new courts Erie and Moon describe raise difficult normative issues about the public accessibility of the dispute-resolution process. A classic divide between arbitration and litigation is that the former can be kept confidential, while courts and their judgments are open to the public. But the “open justice” principle, recently reaffirmed by the UK Supreme Court, has varying applications in different countries. These new business courts in NLHs and offshore nations are, by default, public. They are state-created courts. They often post decisions on their websites, such as the Dubai International Financial Centre Court’s and Bermuda’s. But NLH courts allow parties to opt into confidential proceedings and judgments and do not (and potentially never will) identify or clarify the standards for determining whether to grant parties’ requests for confidentiality. The offshore courts are more “transparent” in their secrecy—over 55% of Cayman Islands Financial Services Division opinions are sealed, and even that court’s “public” decisions are only available to registered users who have paid an annual fee. Even U.S. courts have been known to grant confidentiality requests when both parties agree, notwithstanding the possible public harm that results from such secrecy, as demonstrated by the recent opioid litigation. It stands to reason that international business courts, who may aim to please the parties before them, would grant such requests.
This secrecy stands in tension with another goal of NLHs and offshore business courts: to develop law. They thus raise fundamental questions about institutional design and legal development. If a state subsidizes dispute resolution in part to foster the development of precedent, how much publicity is enough? These courts may be able to proceed in secret to resolve the particular dispute between the parties, while ignoring the other purposes that courts serve.
NLHs and offshore business courts thus provide a window into the role of courts as creators and preservers of the rule of law domestically and internationally. All purport to promote investment and investment security in their local economies. They may do so by offering well-respected international jurists, a common law tradition, or confidentiality. But can these attributes make up for foreigners’ distrust of the host state? As Erie asks, can they generate positive legal developments in other aspects of domestic governance?
Moon’s paper also examines these foreign court developments from the perspective of U.S. courts, particularly Delaware. U.S. courts—whether Delaware for corporate disputes or federal courts for international human rights disputes—have traditionally thought of themselves as being inviting, even too inviting, to transnational litigation. They have helped develop international law and domestic law with far-reaching extraterritorial effects. But I have argued that these tides are changing because of rising barriers to transnational litigation in U.S. courts and rising competition abroad.
Erie and Moon provide deep dives into two different, important sources of that rising foreign competition. These perspectives should illuminate how we understand courts as international actors in a world with quickly changing global dynamics. These articles are significant contributions in their own right, and also provide a launching pad for important future work for these scholars and others interested in examining courts from a variety of angles.
Cite as: Pamela Bookman, New Courts, New Perspectives
(October 16, 2019) (reviewing
Matthew Erie, The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution
, __ Va. J. Int’l L. __
(forthcoming 2020), available at SSRN.
Will Moon, Delaware’s New Competition
, __ Nw. U. L. Rev. __
(forthcoming 2020), available at SSRN.
Christine P. Bartholomew, E-Notice
, 68 Duke L.J.
As I have mentioned in previous jots, I am a big fan of scholarship that focuses on “on-the-ground-practice with a sensitivity to finding solutions.” Christine Bartholomew’s E-Notice fits that mold. Bartholomew reviews more than 2,700 federal district court decisions on notice in class actions to examine the openness of these courts to electronic methods of notice that take advantage of newer technologies, big data, and social media.
But the article is much more than that. It is one of those rare articles that uses on-the-ground practice to provide insights into one of the thorniest areas of the law—the law of due process.
The empirical project is impressive. Bartholomew searched legal databases to find every decision from 2005 (the year that the Class Action Fairness Act was enacted) to 2017 concerning notice in class actions, focusing on the notice provided to class members of pending class actions and class-action settlements pursuant to Rules 23(c)(2), Rule 23(d), and 23(e). She read each decision to determine whether the court addressed the use of what she calls “e-notice,” which she defines as “emails, text messages, website advertisements, banner ads, keyword ad campaigns, social media posts, and other digital-electronic communication.” Bartholomew analyzes the data to show a general reluctance by district courts to use such methods of notice, categorizing their concerns under three categories—fear of changing traditional notice, fear of new technologies, and fear of imprecision.
Bartholomew does a great job of toggling between the forest and the trees. She presents data and charts to support her claims, but always illustrates her claims with carefully selected examples. For example, she shows “the fear of imprecision” by singling out the Third Circuit’s use of e-notice for antitrust and consumer cases. The choice is apt—the Third Circuit has been one of the leading circuits in adopting an “ascertainability” requirement for class certification, requiring proof that the class members can be specifically ascertained or identified. It stands to reason that a preference for ascertainability goes hand in hand with an aversion to “constructive” methods of notice such as e-notice, which tends to not target specific class members but to use more indirect methods.
The data bears this out. Bartholomew focuses on antitrust and consumer cases because proof of ascertainability tends to be difficult given the lack of records of specific purchases, making e-notice a valuable means of “constructively” informing class members. Use of e-notice declines for antitrust and consumer cases in the Third Circuit after 2013 and 2014, when the court issued important opinions “doubling down” on the ascertainability requirement. There is even a bump up in 2015 when a new decision eased up a bit on that requirement.
Source: P. 254.
Bartholomew brings life to this data by quoting specific cases—for example, where a court was troubled with constructive notice being both “overinclusive and underinclusive,” one of the concerns that undergirds the ascertainability requirement.
But what I really like “lots” about the article is the subtle but persuasive argument it makes about due process. Rather modestly, Bartholomew includes an “intentionally abbreviated” discussion of the statutory and constitutional requirements surrounding class-action notice. The centerpiece of her discussion is Mullane v. Central Hanover Bank and Trust Co., a case I have analyzed in my own writings. Mullane is a masterpiece, containing a coherent theory of due process that focuses less on fixed procedural rights and more on using procedure functionally and flexibly to achieve important social objectives. Bartholomew does not discuss the implications of Mullane to the law of due process writ large, but observes, correctly, that Mullane is the law on the due process of class-action notice. Therefore, Rule 23 and cases interpreting it (particularly Eisen v. Carlisle & Jacqueline) must embody Mullane’s flexible approach. I found this very persuasive, particularly her focus on the terms of Rule 23(c)(2)(B), which expresses a preference for “individual notice” when possible, but only requires the “best notice that is practicable under the circumstances.”
Bartholomew’s main argument for a flexible, Mullane conception of due process arises from the courts’ misgivings about e-notice. The arguments against e-notice given by courts are especially unpersuasive, such as courts’ concerns that too much notice may (supposedly) harm defendants’ reputations. This is due, in part, to the reality that many district court judges do not spend much time critically examining notice plans, understandably so. There is so much to do, and sometimes it is easier to do what is tried and true than to venture into new territory. But the reader is left with a picture of due process as a cage, forever enshrining a preference for mailed notice, which was state-of-the-art when Mullane was decided in 1950. Courts repeat that “[t]he Supreme Court has consistently endorsed notice by first-class mail.” But the “spirit of Mullane” and significant due process precedent contemplate “changing modes of notice over time.” The contrast between what Mullane and e-notice can offer and what we actually have provides a powerful argument that we should rethink how we achieve due process.
It is a small and impressive miracle that Bartholomew achieves such great heights from digging into the earthy practice of class-action notice plans. And it is done with crisp, sparkling writing. Needless to say, I really like this article lots and I highly recommend it!
Jeffrey L. Fisher & Alli Orr Larsen, Virtual Briefing at the Supreme Court
, 105 Cornell L. Rev.
__ (forthcoming 2019), available at SSRN
How do the Justices (and their law clerks) know what they know? More specifically, how do they acquire the information that they rely on when deciding cases? Alli Orr Larsen has done more than anyone in recent years to answer this set of questions. From exploring the role of amicus brief “facts” in Supreme Court opinions to tracing “in house” fact-finding by the Justices themselves, Larsen has shown how information comes to, and is sought by, members of the Court in surprising and perhaps unsettling ways. It is thereforeunsurprising that Larsen, with renowned Supreme Court advocate Jeff Fisher, have new and important information about how facts and arguments reach chambers today.
The starting point of Virtual Briefing is that the digital age has opened new avenues for reaching the Justices. As readers of this site will no doubt acknowledge, many in the legal profession gather crucial information about cases online. Whereas yesterday’s lawyer might have consulted bar journals and op-ed pages to glean legal insights, today’s lawyer has her pick of podcasts, blogs, and twitter feeds devoted to the Court. As one example, according to ABA estimates, there were a mere 100 legal blogs in 2002 and more than 4000 by 2016. These sources provide what the authors dub “virtual briefing”— written or oral online advocacy, outside the normal briefing process, aimed at influencing the outcome of a case at the Supreme Court.
A lesser team would simply say it stands to reason that the Justices and their clerks are paying attention to this new type of briefing. Larsen and Fisher, however, have the online equivalent of receipts. They identified Twitter accounts for 25 law clerks from the 2017–18 and 2018–19 Terms—37% of the clerks from this period. They then found that a substantial number of clerks “followed” accounts focused on Court commentary, including those of SCOTUSblog, Orin Kerr, and the now-defunct First Mondays podcast. Larsen and Fisher even show in a few instances that clerks began following subject-specific accounts around the time certain cases were pending—for example, a labor law blog when the public-unions case, Janus v. AFSCME, was argued.
Having shown that a sizeable number of law clerks tune in to Court commentators, Virtual Briefing then has the difficult task of showing that this made a difference. The authors are careful to acknowledge that they cannot prove so definitively. But they can provide examples where the evidence suggests that a particular blog post or podcast mattered—and they do so persuasively. As one example, Fisher and Larsen trace the infamous “broccoli horrible” argument from NFIB v. Sebelius, as it moved from the Volokh Conspiracy blog to Justice Scalia’s questions at oral argument to all three main opinions on the Commerce Clause. With this and a few other powerful examples, they make a strong case that virtual briefing has mattered, even if one cannot say so with certainty or in quantifiable terms.
The article then turns from the descriptive to the normative: We have reason to believe that virtual briefing matters, now should we be concerned? To answer this question, the authors have another difficult task: trying to draw a line between making arguments with an intent to affect case outcomes in a blog post or podcast and making arguments with an intent to affect case outcomes in a bar journal or the op-ed page of The New York Times. Online commentators can respond to claims made at argument in real time (not days or weeks later) and online fora tend to lack the gatekeepers and fact-checkers associated with famed print publications. Taken together, these points mean that the Justices can “crowdsource” their arguments, often from potentially dubious sources, making virtual briefing different in kind from what has come before.
The ways in which virtual briefing is different can create clear problems. Virtual briefing can circumvent the adversarial process, as commentators can posit new arguments not made by the advocates at argument, and quickly enough to impact decision-making. And it can skirt the spirit of Supreme Court Rules on amicus briefs, which forbid non-amici from providing financial support for filing and require disclosure of non-amici authors. Needless to say, there are no transparency/accountability requirements when uploading a blog post or recording a podcast.
Virtual Briefing concludes by exploring several prescriptive measures. The authors acknowledge, however, that the most obvious solutions come with their own problems. For example, if the Court were to promulgate a rule restricting the posting of material online that appeared to function as a brief—and such a rule could pass constitutional muster—it is not clear to whom the rule would apply, how the rule would be enforced, and how the Court could separate virtual briefing from unobjectionable commentary. The authors ultimately call for enhanced transparency as the most sensible and realistic option. If a Justice encounters a new argument of interest from an online source, the Court could call for supplemental briefing—thereby bringing it “into the fold” of traditional briefing.
In the end, Virtual Briefing makes a valuable contribution by identifying and wrestling with an important and complex problem. As the authors conclude, whatever happens with virtual briefing in the future, we should not proceed without discussion and critical thought. Thanks to Fisher and Larsen, we have it.
Cite as: Marin K. Levy, Confronting Online Advocacy
(September 4, 2019) (reviewing Jeffrey L. Fisher & Alli Orr Larsen, Virtual Briefing at the Supreme Court
, 105 Cornell L. Rev.
__ (forthcoming 2019), available at SSRN), https://courtslaw.jotwell.com/confronting-online-advocacy/
Leah Litman’s Remedial Convergence and Collapse highlights a common two-step phenomenon in the law of constitutional torts. First, the Supreme Court increases the standard for obtaining one remedy (“Remedy A”), relying in part on the availability of another remedy (“Remedy B”). The Court then increases the standard for obtaining Remedy B, relying in part on the availability of Remedy A. The result is that neither remedy is available. Across a range of remedial domains, the Court has imposed similar, high standards for relief, often citing the availability of other remedies that do not exist as a practical matter. Litman calls the similarity of the remedial standards “convergence.” The ultimate unavailability of any remedy? “Collapse.”
To illustrate her point, Litman focuses primarily on three mechanisms of constitutional enforcement that are of particular importance to policing and criminal justice: (1) qualified immunity; (2) federal habeas; and (3) the exclusionary rule. As Litman puts it, “[t]he standards for qualified immunity, habeas corpus, and exclusion of evidence have … converged around a similar, overarching principle that purports to select for unreasonably egregious actions.” (P. 1480.)
For example, for a damages suit to advance against a governmental defendant in an individual capacity, a plaintiff must demonstrate that the official’s actions violated clearly established law that a reasonable official would have known at the time of the violation. This is a high bar; qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Likewise, when a criminal defendant seeks to exclude illegally obtained evidence, “the same standard of objective reasonableness that [applies] in the context of a suppression hearing … defines the qualified immunity accorded an officer.” And Congress requires that if a state court has adjudicated a petitioner’s federal claim, that ruling must remain intact in the face of a habeas petition unless “the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” This standard has been interpreted to mean that state court’s decision is not “objectively unreasonable” “so long as ‘fair-minded jurists could disagree’ on the correctness of the … decision.”
The standards for these various remedies also converge in the level of generality with which courts are required to read prior cases. Across all three contexts, the Court has warned against defining the rules established by prior cases at a high level of generality. In the habeas context, litigants may not rely on new rules established after their conviction became final, absent rarely applicable exceptions; in determining whether a Supreme Court decision creates a new rule or instead applies an old rule, lower courts have been admonished not to define the old rule at a high level of generality. The Court has issued similar warnings in qualified immunity cases.
Convergence is surprising because these doctrines implicate different causes of action and defenses that arise from different sources of law. Section 1983 features broad language, purportedly applying to “[e]very person” whose federal rights have been violated by state officials, saying nothing about qualified immunity. By contrast, in the Antiterrorism and Effective Death Penalty Act, Congress expressly limited the reach of federal habeas to protect federalism and finality. And the exclusionary rule is a judicially-crafted doctrine that arises in criminal prosecutions. Still, as Litman demonstrates, similar, stringent standards govern these disparate contexts.
Despite the similar governing standards, the Court often cites the availability of one remedy as it denies another. When restricting the scope of the exclusionary rule, the Court has pointed to the availability of suits under Section 1983. Restrictive habeas cases rely on the availability of the exclusionary rule, even when exclusion likely would not have been available. Qualified immunity cases have relied on the availability of remedies in criminal cases, even when this is not so. Litman explains that the “convergence in the different remedial standards thus undermines the Court’s reassurances that another remedy will substitute for the remedy the Court has denied, because convergence means that all remedies will effectively be displaced when the court denies one remedy.” (P. 1510.)
This is an important observation. While the rights-remedies gap has long been an important topic in scholarship about constitutional torts, less attention has been paid to the common mechanisms that sustain and widen that gap. A generation ago, Daniel Meltzer suggested that “there is reason to doubt that ‘the central problems for constitutional law . . . are issues of the definition of rights rather than the creation of a machinery of jurisdiction and remedies that can transform rights proclaimed on paper into practical protections.’” As Chief Justice Marshall once admonished, it is odd for a court to engage in the work of “prescribing limits,” but then “declar[e] that those limits may be passed as pleasure.”
Litman’s work helps focus on that machinery of jurisdiction and remedies, and how that machinery is not living up to its transformative promise.
At the end of the Supreme Court’s October 2010 Term, George Washington University law professor (now President and CEO of the National Constitution Center) Jeffrey Rosen wrote a pointed essay for The Atlantic titled Why I Miss Sandra Day O’Connor. Justice O’Connor retired from the Court in January 2006, and Rosen was writing to bemoan the sharp conservative turn that he believed the Court had taken over the five years since Justice Samuel Alito had been confirmed as her successor. Although Rosen had strongly criticized O’Connor’s “pragmatic, split-the-difference jurisprudence while she was on the Court,” the utility of that approach—and the centrism it bespoke—had not only become increasingly clear in hindsight, but its absence in cases such as Citizens United v. FEC had become increasingly noticeable, and, to Rosen, distressing.
Eight years later, at the end of the Court’s first Term with its new, solidified five-Justice conservative majority, Evan Thomas’s breezy, thoughtful, and incisive new biography of Justice O’Connor leaves the same impression. The monograph, which the Justice authorized and in which she and her family encouraged colleagues and clerks to cooperate, is more than just a recounting of the high (and lower) points of Justice O’Connor’s remarkable (and remarkably well-documented) life and career and an engaging study of the first woman appointed to the highest Court in the land. It is also an elegy—for a moment in the political life of the country and in the perception (and internal politics) of the Supreme Court that has clearly passed. Exactly 100 years after William Butler Yeats warned that “the centre cannot hold,” Thomas’s volume is not just an accessible “intimate portrait” of someone who, in his words, “is easy to caricature and harder to understand;” it is a powerful reminder of the increasingly forgotten virtues of moderation, compromise, and civility—not just within the marble halls of One First Street, but on Main Street, as well.
O’Connor, as Thomas exhaustively documents, brought pragmatic sensibilities to the Court when she was appointed by President Reagan in 1981—sensibilities informed by her experience as both a state judge and state senator in Arizona. A judge as much as she was a Supreme Court Justice, that pragmatism often led her to decisions that eschewed broad theories in favor of formulations that appropriately balanced her view of the competing interests, even at the expense of (her own) analytical consistency. For instance, Thomas recounts some of what occurred behind the scenes in Central Virginia Community College v. Katz—what turned out to be the final decision in which Justice O’Connor participated. In that case, a 5-4 majority held that Congress has the power to subject non-consenting states to damages liability in federal court—to abrogate their sovereign immunity—when it enacts bankruptcy legislation under Article I of the Constitution. O’Connor, who had joined a series of earlier 5-4 majorities holding that Congress generally lacked the power to subject non-consenting states to such suits, had changed her mind—and joined Justice John Paul Stevens’ majority opinion without separate comment. As Thomas writes, “her reasoning was simple and, as ever, pragmatic: Bankruptcy laws cannot work unless states are treated like other creditors” Full stop.
Although other examples abound, Thomas also singles out O’Connor’s opinion for a four-Justice plurality in one of the “enemy combatant” cases, Hamdi v. Rumsfeld. Writing for herself, Chief Justice William Rehnquist, and Justices Anthony Kennedy and Stephen Breyer, O’Connor concluded that Congress had authorized the detention of U.S. citizens captured while allegedly fighting for the Taliban in Afghanistan when it authorized the use of military force in the fall of 2001, but that, balancing the detainee’s rights against the government’s interests, the Due Process Clause required more proof for the government’s case against the detainee before indefinite military detention could be authorized.
Dissenting (for once, from Justice O’Connor’s left), Justice Scalia did not pull his punches, decrying O’Connor’s opinion as “an approach that reflects what might be called a Mr. Fix-it Mentality.” As Scalia wrote, O’Connor “seems to view it as [her] mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions.” And yet, O’Connor’s careful, nuanced analysis has withstood the test of time. Not only have no U.S. citizens been subject to military detention on U.S. soil in the 15 years since that ruling, but, as Justice Breyer pointed out last month, the plurality’s nuanced analysis did not pre-judge an array of harder questions that have arisen in cases involving non-citizen detainees. As Thomas writes, “the Hamdi decision cemented O’Connor’s status as the true rudder of the Court”
Yet when O’Connor prematurely stepped down from the bench in 2006 to help care for her ailing husband, control of that rudder passed to Kennedy. Although it was clear by the mid-1990s that the Court’s ideologically divisive cases would typically come down to how Kennedy and O’Connor voted, they often took radically different paths even when reaching the same destination. Thus, although the Court clearly moved to the right in at least some respects when Alito replaced O’Connor, the real movement may have been the oscillations between the landmark cases in which Kennedy sided with the increasingly solid bloc of progressive Justices and those in which he sided with the conservatives. Thus, the period after O’Connor’s departure not only brought Heller, Citizens United, and Shelby County, but also Boumediene, Windsor, and Obergefell. The Justices may not have agreed with Kennedy, but it was in their interests to placate him—or, at the very least, to not alienate him.
On the far side of the October 2018 Term, it is impossible not to notice the absence of more moderate voices on the Court. From the highly unusual public airing in April of a months-long behind-the-scenes dispute in a series of capital cases to the tenor of some of the Justices’ higher-profile rulings in June, it is clear that “the justices have less reason to be conciliatory in either their reasoning or their tone in ideologically divisive cases.” In the process, the Court has come to resemble the country—two deeply entrenched blocs, each having a hard time seeing the arguments and principles that define the other side. And the Court may have reinforced such increasing polarization on multiple levels in its sharply divided ruling that challenges to partisan gerrymandering present non-justiciable political questions—a result from which Justice Elena Kagan and her three progressive colleagues dissented “with deep sadness.” These developments would not have sat well with O’Connor, a Justice for whom “[c]ivility, not snark, was the currency of discourse. Extremism of any kind was to be avoided. Absolutism was for demagogues.” (P. 360.)
In that respect, it is O’Connor, more than Kennedy, who is missing. More alarmingly, it is hard to imagine a scenario in the near or medium term in which it will be in any President’s political interest to try to bridge that gap, rather than appointing the most ideologically extreme candidate capable of gaining Senate confirmation.
O’Connor may have been “First,” but Thomas’s book all but hits readers over the head with the troubling specter that she might also have been the last of her kind. Her colleagues knew it, too. In a note to the Justice shortly after she announced her retirement in August 2005, Justice Scalia wrote that she had been “the forger of the social bond that has kept the Court together.” He wondered, “who will take that role when you are gone?” (P. 378.)
Fourteen years later, that question remains unanswered.