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Precedent, Preclusion, and Participation

Alan M. Trammell, Precedent and Preclusion, Notre Dame L. Rev. (forthcoming 2018).

Preclusion and precedent restrict the permissible range of actions in future litigation. Preclusion bars parties from relitigating claims or issues that have already been adjudicated in a prior action in which the litigant was present. Precedent binds all courts and parties within a relevant jurisdiction to a particular rule or holding if the decision emerged from a court with binding authority. Alan Trammell’s new article undertakes a fresh examination of the tension between these two doctrines: why are future parties bound by precedent and stare decisis regardless of their presence in a prior action, when preclusion doctrines demand prior party presence and jealously guard an absent party’s right to a day in court?

Trammell’s take is that preclusion and precedent embody two different theories of due process. Preclusion protects a “participation-oriented theory,” in which courts are focused on guarding a party’s due process right to a “day in court.” Precedent protects an “outcome-oriented theory,” in which due process bolsters decisional accuracy and protects litigants’ rights to a stable and predictable legal environment.

Trammell frames his article around the problem of serial litigation. As a general matter, parties are not permitted to relitigate claims or issues that have already been litigated. Litigants can circumvent this bar by having a non-party to a first lawsuit bring a second action. In some cases, this has the effect of giving relief to the first party, particularly when the remedy sought is of an equitable nature and all similarly situated persons will benefit from the relief granted to the second-comer. Courts have struggled to articulate workable doctrines that do not bind absent parties to decisions in which they had no ability to argue or influence the outcome, but that also protect defendants from potentially vexatious repeat litigation.

Framing the preclusion/precedent problem as one that is primarily concerned with solving the problem of serial litigation emphasizes the disconnect between the two doctrines and allows Trammell to suggest that any plausible solution must account for a deeper understanding and application of the due process theories that underpin each doctrine, theories directed toward addressing serial litigation. It might be, however, that these doctrines do not fit neatly within the framework of problematic serial litigation. For example, one traditional justification for limiting the preclusive effect of judgments to parties while allowing precedential effect on all future parties is that each doctrine is directed at different classes of actors. The effect of preclusion is to bar future litigants from bringing a claim or relitigating an issue. But precedent does not bind parties directly, per se; rather, it binds future decision makers. Judges are bound by precedent, while parties retain more freedom. Future parties are constrained in their ability to achieve a desired outcome within the molding of existing precedent to which judges must adhere, but they are not barred from bringing the claims in the first place. This framing accounts for the fact that precedent is meant to address more than the problems that arise from serial litigation.

One of Trammell’s main contributions is to demonstrate the gap between theory and reality in this distinction. He urges the reader to look at the reality of the paralyzing and crushing weight of precedent, which becomes a de facto regulator of non-party lawsuits, justified by a due process theory inconsistent with that behind preclusion doctrines. Recognizing two distinct theories of due process better explains the doctrinal conundrum because they reflect the actual effects of each doctrine rather than the theoretical differences in scope. This observation also allows Trammell to advance a normative argument. Looking at each due process theory, he offers a convincing argument that the outcome-oriented theory of precedent is much more consistent with due process theories underlying other doctrines both in civil procedure and in the wider legal context. Applying the outcome-oriented theory to preclusion doctrines would enable courts to relax further the prohibitions on barring non-parties from effectively relitigating settled issues or claims in new lawsuits.

Trammell sees the outcome-oriented theory as dominant and the participation-oriented theory as “anomalous.” Although he makes a convincing case for the dominance of the former, he may be giving short shrift to the latter. While the participation-oriented theory is certainly less prominent, it is a stretch to characterize it as anomalous. Class actions represent the biggest example of the Supreme Court’s concern for the “day in court” theory of due process. The Court has repeatedly issued decisions celebrating the right of each current or potential class member to have his or her personal day in court. Many of the class-action structures, from notice to certification to settlement, are designed to ensure that no party is “absent” before it is bound by a settlement or judgment. Trammell’s intuition might be right to show that these decisions value a participation that is largely illusory. Beyond the fact that only a tiny fraction of absent class members will meaningfully object to or opt out of a class action, the “day in court” decisions rest on a participation theory, but result in less participation in practice. After all, many of the decisions that protect absent class members have the practical effect of weakening the class-action mechanism itself. And since many of these actions are made up of negative expected value claims, the upshot of the Court’s concern about individual participation is to reduce court access altogether.

While the participation-oriented theory might not be a true due process outlier, Trammell is correct to suggest the concern for “participation” might be another outcome-oriented theory. Trammell ends his article with a call for “leveling down,” using the outcome-oriented theory to justify an expansion of non-party preclusion. While this is an appealing doctrinal solution to the problem of serial litigation, class-action jurisprudence shows that courts might be too beholden to the participation-oriented theory in the minority of contexts where it exists—so much so that they will preserve the appearance of participation even when their decisions have quite the opposite effect.

Cite as: Robin J. Effron, Precedent, Preclusion, and Participation, JOTWELL (November 13, 2017) (reviewing Alan M. Trammell, Precedent and Preclusion, Notre Dame L. Rev. (forthcoming 2018)),

Sequential Progression of Dispute Resolution in Federal Courts

Alexandra D. Lahav, Procedural Design (2017), available at SSRN.

An elegant logic seems to animate the intricate mechanics of civil procedure. To determine whether a requested remedy is appropriate, courts must identify the scope of a dispute, consider whether the law provides a potential basis for judicial action, resolve factual disagreements, apply the law to the facts, and reexamine that application when necessary. These abstract requirements manifest as an ostensibly sequential process of pleading, discovery, trial, and appeal, interspersed with dispositive motions.

In theory, each sequential stage of litigation incorporates data developed in prior stages, enabling courts to make progressively more informed decisions. Although a stage analyzed in isolation may appear to involve disjointed maneuvering, a broader choreography unites and structures all stages of a civil action. But what happens if the choreography unravels, jumbling the order of adjudication?

Alexandra Lahav’s new article, Procedural Design, challenges tidy sequential accounts of civil adjudication. The article builds from an empirical observation to a normative conclusion. Empirically, Lahav observes that civil litigation in federal courts does not follow the “textbook” sequential progression that commentators often assume. Instead, “a federal lawsuit may proceed in almost any order” (emphasis in original). She then contends that this departure from presumed ideals requires rulemakers to articulate guiding principles for the progression of adjudication. The article suggests three normative approaches, although one need not agree with Lahav’s typology of cures to accept her diagnosis.

The article’s empirical claim rests on analysis of five “doctrines of disintegration” that erode the customary sequence of litigation. Three of these doctrines entail consideration of facts prior to discovery. For example, motions to dismiss for failure to state a claim invite speculation about the plausibility of factual allegations and in complex cases can address factually detailed Lone Pine filings. Likewise, class certification motions can lead to “a full blown trial at the commencement of litigation” on an incomplete yet functionally dispositive record. Even summary judgment motions, which seem to require significant fact development, are now often used to avoid discovery rather than as the culmination of discovery. The remaining two “disintegration” doctrines involve shifting legal inquiries away from the starting and ending points of a suit. Appeals are frequently available in the middle of a case rather than at the end, while inquiries into justiciability and jurisdiction can occur throughout a case rather than only at the beginning.

A theme unifying Lahav’s examples is that the role of individual procedural devices evolves over time while the underlying systemic design remains static. Doctrinal evolution has many causes, including revised theories about the desirability of competing ends and the feasibility of proffered means. Procedures that seem misguided or wasteful in one era can appear prudent and efficient in another. Indeed, a recurring catalyst for change is a perception that prior procedures excessively accommodated weak claims or disfavored claimants. This perception raised the bar for pleading and class certification and lowered the bar for summary judgment and interlocutory appellate review.

Whatever the reason for doctrinal evolution, modern usage eventually diverges so far from what was originally expected that a rule no longer fits comfortably within the space for which it was designed. As more time passes, the accumulation of changes across multiple rules increases the system’s drift from its original assumptions. No innovation is revolutionary on its own, but the aggregation of several innovations can challenge assumptions about the proper sequence of litigation.

Lahav contends that this “organized decay”—an evocative quote from Emily Dickinson—has gradually undermined procedural coherence for the past forty years. The consequences are pervasive because the transsubstantive aspiration of federal procedure enables new ideas to propagate across substantive boundaries. For example, there is a short road between holding that complex antitrust cases require relatively precise pleadings and extending the new rule to all civil actions. The consequences of travelling down that road might not be apparent to judges focused on immediate rather than systemic concerns. As Lahav notes, courts often implement “piecemeal reactions to the problems posed by the individual case” without “think[ing] about procedural design holistically.”

Lahav concludes by considering how a holistic approach to procedural design might address questions about sequencing. To test competing options, Lahav posits that a sound procedural regime must promote four goals: a “meaningful hearing,” “a fair chance of reaching the correct result,” “speed,” and making costs predictable while balancing costs against competing objectives. She then identifies three distinct approaches to sequencing and assesses each in light of the goals above.

First, rulemakers might attempt to restore the “textbook” order in which motions “are calibrated to the information available at the stage of the litigation in which they are brought.” This approach has both the benefits and costs of formality. The pretrial, trial, and appellate stages would coalesce in a way that is logically coherent and easily administered, yet potentially stifling and wasteful.

Second, at the opposite extreme, rulemakers could authorize “bespoke procedures.” Judges would tailor the sequence of motions to the perceived needs of a case without any effort to enforce a prescribed order. This system’s flexibility might be productive in some circumstances, but discretion could easily lead to uninformed, arbitrary, or inefficient decsionmaking.

Third, rulemakers could jettison transsubstantivity in favor of “subject specific procedure.” Just as common law courts in England applied distinct procedures to different writs, federal courts might develop unique procedures for different claims. Sequencing would vary depending on the type of claim being considered, but each sequence would be fixed (at least relative to the bespoke option). This hybrid of the textbook and bespoke approaches risks sharing the flaws of each: it may be both too flexible and too rigid. In addition, the administrative costs of creating and implementing myriad sets of rules—including concurrently in cases with multiple claims—might outweigh the marginal benefit of customization.

Lahav acknowledges that all three potential regimes in her typology have flaws. Her goal is not to identify an optimal approach to sequencing procedures, but to provide a framework for further study. She reveals a trend, raises concerns about its consequences, identifies categories of responses, articulates norms by which to test those responses, and provides a preliminary assessment of competing options.

The article raises numerous fascinating questions for scholars to consider. I will highlight three. First, to what extent have adventurous exercises in resequencing significantly altered outcomes in a material number of cases? The article focuses on identifying the theoretical implications of doctrinal changes and provides specific examples, but the practical scope of the problem is difficult to quantify. Second, did the “textbook” description of procedure describe an order that rulemakers never fully embraced? Concise textbook summaries of a complex procedural system inevitably gloss over nuances. Perhaps the conventional account of sequencing was always neater than the reality on the ground, such that modern departures are more incremental than they may seem. Third, is the problem that courts are departing from established norms, or that they are doing so in an ad hoc manner? The FRCP’s framers deliberately designed the rules to be pliant and entrusted them to a common law method of elaboration. The problems that Lahav identifies may be foreseeable consequences of how federal procedure develops, or a reason to rethink the rulemaking process.

Lahav’s rigorous and thoughtful article will be a rich source of insight for scholars addressing these and other questions about the design and implementation of procedural rules.

Cite as: Allan Erbsen, Sequential Progression of Dispute Resolution in Federal Courts, JOTWELL (October 30, 2017) (reviewing Alexandra D. Lahav, Procedural Design (2017), available at SSRN),

Enquiring Minds Want to Know: What Law Governs Forum Selection Clauses?

Symeon C. Symeonides, What Law Governs Forum Selection Clauses, 78 La. L. Rev. (forthcoming 2018), available at SSRN.

I can think of no better person to answer the burning question, “What law governs forum selection clauses?” than the inestimable Symeon C. Symeonides, of conflict-of-laws fame. Symeonides has stepped into the breach to assist civil procedure and federal courts professors everywhere with an exhausting analysis of how to resolve the problems relating to applicable law as it applies to contractual forum selection clauses.

Some may remember that the Supreme Court in Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas avoided (or evaded) this fundamental question. Instead, focusing on proper procedure, the Court held that a forum selection clause is appropriately enforced through a venue transfer motion under 28 U.S.C. § 1404(a).

Having resolved this vexing procedural issue, the Court left unanswered an array of irksome foundational questions. In the final analysis the Court’s entire Atlantic Marine edifice was erected on the premise that the forum selection clause in that case was valid. In footnote 5, the Court simply noted that “[its] analysis presuppose[d] a contractually valid forum-selection clause.”

Atlantic Marine proceeds from a presupposition of validity, which invites the question of how to decide if a forum selection clause is, in fact, valid. At a minimum, three legitimate questions arise: (1) what body of law applies to evaluate the validity and enforceability of a forum selection clause? (2) what court should make that determination? and (3) when should that determination be made? The analysis is further complicated depending on whether or not the contract also contains a choice-of-law provision. A choice-of-law provision might point to the application of a law other than the law of the plaintiff’s chosen forum. In such cases, as a matter of first instance, does the plaintiff’s chosen forum apply its own law to determine the validity and enforceability of the clauses, or does the choice-of-law provision compel interpretation of validity and enforceability based on the contractual forum’s law? Does the answer to this question vary depending on whether the court’s authority is based on admiralty, federal question, or diversity jurisdiction? And, if the threshold dispute centers on the validity and enforceability of choice-of-law and forum selection clauses, why should another forum’s law govern these questions?

Symeonides leaps into this breach to discuss, evaluate, and propose answers to these questions. In methodical fashion, he takes the reader through a decision-tree analysis, categorizing various possibilities for the choice-of-law question. At the threshold, he suggests that cases need to be assessed based on whether the applicable-law question is litigated in the court designated by the forum selection clause or in another court, and whether a choice-of-law clause is included in the forum selection clause. He also emphasizes that courts ought to pay better attention to the distinction between the enforceability and interpretation of forum selection clauses. He writes: “Once interpretation is separated from enforceability, one can address with a clearer mind the question of what law should govern the enforceability of [forum selection] clauses.”

Symeonides then surveys three possible scenarios where the parties’ contract contains a forum selection clause: (1) actions filed in the court chosen by the forum selection clause, (2) actions filed in a court other than the one chosen by the forum selection clause where the contract does not also contain a choice-of-law clause, and (3) actions filed in a court other than the one chosen by the forum selection clause where the contract does also contain a choice-of-law clause. In discussing the third scenario, he reviews decisions where courts have applied forum law, applied the contract’s chosen law, or distinguished between enforceability and interpretation.

Following an exhaustive recitation of judicial decisions, Symeonides offers these summary conclusions. In scenario 1, courts apply the forum state’s internal law without any choice-of-law analysis. These courts apply forum law in interpreting and determining the enforceability of the clause. In scenario 2, courts apply forum-state law to determine whether the forum selection clause is enforceable. A few cases undertake a choice-of-law analysis, but only in interpreting the forum selection clause. In scenario 3, courts chiefly apply the forum state’s internal law to determine whether the forum selection clause is enforceable and apply the law chosen in the choice-of-law clause in interpreting the forum selection clause.

In assessing what courts have been doing with regard to the applicable-law quandary, Symeonides concludes that most American courts, in all three scenarios, demonstrate a bias for applying lex fori, or the “internal” law of the forum state. The vast majority of courts, he notes, apply the forum state’s internal law to determine whether a forum selection clause is enforceable, and more often than not, do so without conducting a choice-of-law inquiry. Noting this judicial preference for application of lex fori, Symeonides challenges the reader to consider whether this is a bad practice. He reviews the competing scholarly views either repudiating or defending this practice, with his own sympathies tending toward the lex fori approach.

As law professors appreciate, conducting a choice-of-law analysis is not for the faint-hearted. Judge Jack Weinstein is reputed to have once jokingly said that whenever he wanted parties to settle a case, he would call them into chambers and tell them that he wanted them to return to court with a choice-of-law analysis.

As the country’s preeminent conflicts scholar, Professor Symeonides has performed an extremely valuable task in systematically hacking through the Gordian knot of the applicable-law problem intertwined with forum selection clauses. Civil procedure professors, in teaching Atlantic Marine, now have a ready resource to address student enquiries: “So what law applies if we have to decide whether the forum selection clause is valid?” Brave professors may venture an explanation citing Symeonides, or otherwise send questioning students to this thoroughgoing article.

Cite as: Linda S. Mullenix, Enquiring Minds Want to Know: What Law Governs Forum Selection Clauses?, JOTWELL (October 12, 2017) (reviewing Symeon C. Symeonides, What Law Governs Forum Selection Clauses, 78 La. L. Rev. (forthcoming 2018), available at SSRN),

Adversity and Non-Contentiousness

Article III extends “the judicial Power of the United States” to certain “cases” (defined largely by subject matter) and certain “controversies” (defined largely by parties). But why the different words? Does the distinctive terminology track a difference in legal meaning? Questions along this line seem to come up every time I teach about Article III. Finally, I have a concise but fairly comprehensive answer to offer if asked.

My answer now—and my (justified?) confidence in its correctness—comes from James Pfander and Daniel Birk. Their compact piece, Adverse Interests and Article III: A Reply, restates and defends against a powerful scholarly critic—Ann Woolhandler—an account they first advanced two years ago in Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction.

I must confess to paying insufficient attention to that earlier Pfander/Birk article—a 129-page throwback to the days before leading law reviews colluded to impose word limits. But if I can handle this most recent thirty-pager, so can you. And you should go read it with all deliberate speed. Like the pie-eating competition to which the practice of law is sometimes compared, the reward for consuming this legal scholarship will be more legal scholarship. But unlike excessive pie-eating, consumption of this additional scholarship will provide additional satisfaction instead of indigestion. (It’s all protein, no carbs.) Start with the reply, as some judges do with their briefs. And you will then be motivated and equipped to go back and read not only that earlier Pfander/Birk piece but also Woolhandler’s response, Adverse Interests and Article III, with the attention and care each demands and rewards.

Thanks to Pfander and Birk, my in-class answer to the standard “what’s the difference” question will begin something like this: “Yes, good question. There is a difference between ‘cases’ and ‘controversies.’ ‘Cases’ is a broader category than ‘controversies.’ The category of ‘cases’ includes not only civil suits and criminal prosecutions, but also other judicial proceedings that result in a final determination of a claim of legal right, including the granting of petitions for naturalization and applications for warrants. Unlike ‘cases,’ which can exist even if there is a single party before the court, ‘controversies’ require the presence of an adverse party.”

This answer—or beginning of an answer, really—is certain to raise many additional questions in class as we continue our exploration of the federal judicial power. “What about standing doctrine?” “What about the adverse-party requirement?” “Was Justice Kennedy right to treat the presence of an adverse party in Windsor as simply a prudential matter?” “Are you actually saying Justice Scalia’s Windsor dissent was wrong?” “Will this be on the final?” “Can you repeat that so I can type it exactly?”

With the exception of those last two, these are all excellent questions. And the aid offered in thinking through all of them is a virtue not only of the Pfander and Birk pieces, but also of the responsive article from Ann Woolhandler that makes up the middle of this trio. These scholars cannot all be right about everything each asserts; some of their claims are inconsistent. Helpfully, though, Pfander and Birk begin their reply with an overview of some of the areas of agreement between them and Woolhandler. Here is one big one: even under Woolhandler’s more current-doctrine-compatible “adverse interests” approach, an adverse-party requirement is too demanding a formulation of what Article III inflexibly requires.

If judicially accepted, the Pfander and Birk view would significantly unsettle existing doctrine. If they are right about Article III, then “parties do not need an injury in fact to pursue a claim in federal court” (P. 1092), judicial proceedings can be Article III “cases” even in the absence of adverse parties or adverse interests, and Justice Scalia’s dissent in Windsor “began from an incorrect premise” about the need for an adverse party (P. 1073). It does not necessarily follow that Justice Kennedy was right in Windsor to treat the need for an adverse party as something that Article III assigns to case-by-case judicial discretion. But he was right to reject a hard-and-fast Article III adverse-party requirement.

For all its potential to unsettle existing doctrine, there is something about the Pfander and Birk view that makes it relatively easy to accept. The textual distinction between “cases” and “controversies,” they contend, maps onto a more fundamental distinction between contentious and non-contentious jurisdiction. And non-contentious jurisdiction, they show, has been uncontroversially exercised by judicial tribunals in many other jurisdictions over long swaths of time. Pfander and Birk help us recognize something that has been hiding in plain sight for a really long time—“the judicial Power of the United States” includes the authority to accept “cases” of non-contentious jurisdiction assigned to the federal judiciary by Congress. Further, their distinction between contentious and non-contentious jurisdiction offers a helpful lens through which to re-examine much of what we have taken for granted. Once we see the utility and ubiquity of non-contentious jurisdiction in other legal systems, the ability of Article III courts to exercise non-contentious jurisdiction assigned to them by Congress makes a great deal of practical sense, in addition to clarifying the textual distinction between “cases” and “controversies.”

It is not my intent here, though, to endorse every element of the Pfander and Birk approach, or to adjudicate each disagreement between them and Woolhandler. The former strays beyond my considered judgment from my examination of their arguments; the latter extends outside my ken. My goal, instead, is to encourage new readers to take up all three articles for themselves.

Reading good legal scholarship is good for your soul. And these articles are excellent. Tasty, nutritious, and restorative (with just enough pepper to be interesting), Pfander, Birk, and Woolhandler have served up chicken soup for the Article III soul. More often than I should probably admit on the Internet, the consumption of legal scholarship is a disagreeable and sometimes dreadful chore for me. This perspective doesn’t come through in my JOTWELL contributions, I hope, but that is primarily because the point of this forum is to identify and discuss scholarship that we particularly value. Isn’t it especially off-putting, though, when legal scholars disagree in a disagreeable way? And isn’t that disagreeableness often an indicator for distortion of the views with which a scholar is disagreeing? (One example from personal experience as a student law review editor fifteen years ago is Ronald Dworkin’s “book review” of a Jules Coleman book on legal pragmatism.)

If you, too, try to avoid the annoyance of people who cannot disagree without being disagreeable, you can approach the scholarly interchange among Pfander, Birk, and Woolhandler without apprehension. Perhaps “tonic” is a better metaphor than “chicken soup.” Their tone is just right throughout—reasonable and measured but also clear about areas of agreement and disagreement. And that helps the reader avoid the mental distractions that emerge from unnecessary invective. For anyone who makes a living in this profession of law, it is a true professional pleasure to come across a scholarly legal interchange carried out so clearly and cordially as in this series. That is not to say it is non-contentious. The whole point of the exchange is to contend for one understanding of the federal judicial power over another. But scholarly contention can be personally non-contentious while remaining legally rigorous. And this controversy—through both its what and its how—helps us think through why it is the case that Article III extends the judicial power of the United States to encompass both “cases” and “controversies.”

Cite as: Kevin C. Walsh, Adversity and Non-Contentiousness, JOTWELL (September 22, 2017) (reviewing James E. Pfander & Daniel Birk, Adverse Interests and Article III: A Reply, 111 Nw. U. L. Rev. 1067 (2017) and James E. Pfander & Daniel D. Birk, Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L.J. 1346 (2015)),

The Trouble with Qualified Immunity

William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. (forthcoming 2018), available at SSRN.

Is Qualified Immunity Unlawful? This is the ambitious question that Will Baude tackles in a forthcoming article in the California Law Review. When plaintiffs file damages suits under § 1983 against government officials who violate federal rights acting “under color” of state law, they must overcome the defense of qualified immunity. That doctrine protects government officials from damages claims unless they violate clearly established law that a reasonable person would have known. The Court has emphasized that this is a high standard, protecting all but the “plainly incompetent and those who knowingly violate the law.”

While qualified immunity appears nowhere in § 1983’s text, its lawfulness tends to go unchallenged both in scholarship and in cases. Until now. Baude’s article interrogates the legal justifications for qualified immunity and finds them wanting. Neither text nor history is sufficient to sustain this highly consequential doctrine. He begins with the text, stressing the statute’s language, which purports to hold “[e]very person” liable who violates federal rights while acting under color of state law.

Baude’s article does not end with the seemingly unambiguous language of the statute, however, which would leave it a short article indeed. Instead, he catalogues and rebuts other proffered legal justifications. For example, on the rare occasions that the Court has explained the foundations of the doctrine, it has sometimes either asserted or implied that qualified immunity is a common law doctrine that was implicitly or presumptively incorporated into § 1983 when it was enacted in 1871.

Baude accepts that a common law backdrop can sometimes help us understand the proper scope of a statute. The problem is that the common law backdrop does not support qualified immunity, especially as the doctrine currently operates. In Little v. Barreme, the Supreme Court rejected a broad immunity for civilian government officials who violated the law. And in the decades after § 1983’s passage, courts rejected the notion that state and local officials who violate the Constitution should be immunized from liability. In Myers v. Anderson, the Court held that any claim of such immunity was “fully disposed of … by the very terms of” § 1983.

To be sure, Baude acknowledges that some common law doctrines protected government officials from suit under limited circumstances. Acting in “good faith” sometimes served as a shield to liability. But to the extent that a defendant’s good faith could doom a plaintiff’s suit, this was because bad faith was an element of a specific tort, such as false arrest. “Good faith” was not a broad protection that applied regardless of the underlying alleged violation. What is more, qualified immunity today is an objective standard that applies even when a defendant acts in subjective bad faith. In that way, the qualified immunity defense as it is currently understood outpaces the common law good faith doctrine.

Justice Scalia proposed an additional argument in a dissenting opinion in Crawford-El v. Britton. He contended that § 1983 had been interpreted too broadly, to reach officials who violated state law, because it seemed implausible that a person could violate state law while acting under the color of state law. Qualified immunity provided a remedial correction for this fundamental defect in the Court’s § 1983 jurisprudence. Baude dispatches this argument persuasively, relying in part on the work of scholars such as Steven Winter. “Under color of” is a legal term of art that long has encompassed not only individuals acting with authority, but also those acting with the pretense of authority. Section 1983’s breadth is a matter of congressional choice, so the statute does not need some deep, broad extratextual remedial correction like qualified immunity.

Finally, Baude makes plain that qualified immunity cannot be justified by the rule of lenity, because qualified immunity is much more extensive. Dueling cases from various circuits can help demonstrate that the law is sufficiently unclear to shield a government official from civil liability, while the same division of authority does not provide a basis for lenity in criminal law.

Baude’s piece is, almost self-evidently, a bold and important contribution that emerges at a timely moment. The Court in recent decades has often taken a formalist tone with respect to legal doctrines that outpace statutory and constitutional text. And yet, during the same era, the Court has routinely invoked qualified immunity to protect police officers and other government officials, often reversing lower courts that find the doctrine inapplicable. So what do we make of a doctrine that is not justified by traditional modes of interpretation and that routinely blocks accountability? At least one Justice has acknowledged the need for the Court to confront this question. In a concurring opinion this past term in Ziglar v. Abbasi, Justice Thomas cited to Baude’s manuscript and suggested the Court should reconsider its qualified-immunity jurisprudence in an “appropriate case.” In the absence of new justifications for the doctrine that have not yet emerged, it is time to revisit qualified immunity’s scope, its existence, or both.

Cite as: Fred O. Smith, Jr., The Trouble with Qualified Immunity, JOTWELL (September 14, 2017) (reviewing William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. (forthcoming 2018), available at SSRN),

What Abbasi Should Have Said

It is a common rhetorical trope among far too many federal judges (including Supreme Court Justices) that legal scholarship is of diminishing utility to them and their work, at least in part because scholars have turned their gaze to topics too far removed from those relevant to the deliberations of contemporary jurists. Most famously, Chief Justice Roberts (who does and should know better) echoed this lament at the 2011 Fourth Circuit conference: “Pick up a copy of any law review that you see and the first article is likely to be . . . the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” The Chief Justice’s ill-informed quip may have gotten the most attention, but he is hardly alone.

There is a lot to say about this general claim. In the specific case of the Chief Justice, much of it has already been said by Orin Kerr.

But the juxtaposition of Jim Pfander’s erudite and magisterial new monograph, Constitutional Torts and the War on Terror, and the Supreme Court’s June 19 decision in Ziglar v. Abbasi, suggests a different (and more alarming) possibility: The problem is not that law professors are failing to produce scholarship of utility to contemporary judges; the problem is that the scholarship that is out there just is not getting read. How else to explain both the result and the reasoning in Abbasi—a decision deeply hostile to judge-made damages remedies for constitutional violations by federal officers, and one that is shamelessly indifferent and stunningly oblivious to the rich history and tradition of such remedies that has been well- and long-documented in the academic literature, most powerfully in Pfander’s book.


As Pfander demonstrates, for most of the country’s history, courts and commentators alike unflinchingly embraced the “common-law model of government accountability” (xviii), pursuant to which U.S. officials were routinely subjected to damages liability whenever they invaded the rights of individuals, even foreigners. Whether the liability arose under state common law or the pre-Erie body of federal “general” law, the theory was the same: Judges could—and, indeed, should—fashion remedies to vindicate individual rights, including damages for misconduct that had ceased by the time of the lawsuit. As late as 1963, the Supreme Court was still insisting that “When it comes to suits for damages for abuse of power, federal officials are usually governed by local law.”

Against that backdrop, the Supreme Court’s 1971 decision in Bivens, recognizing that federal judges could imply a damages remedy directly into federal constitutional provisions, was part of a larger shift in patterns of official accountability during the same era—not in favor of increased judicial power, as such, but in favor of federal remedies over state remedies, especially where federal misconduct was at issue. Indeed, there were in 1971 (and remain today) any number of reasons why it makes more sense to treat a case like Bivens as a Fourth Amendment violation, rather than, as the Nixon administration argued, a dispute that could be settled by resort to ordinary state-law trespass principles. Thus, as the second Justice Harlan put it in his concurring opinion in Bivens, once the Court began to prefer federal remedies (including, for example, in suits seeking injunctive relief), allowing judges to imply damages remedies into the Constitution seemed to follow, since “it would be . . . anomalous to conclude that the federal judiciary . . . is powerless to accord a damages remedy to vindicate social policies which, by virtue of their inclusion in the Constitution, are aimed predominantly at restraining the Government as an instrument of the popular will.”

Much of the rest of Pfander’s book unpacks how, since Bivens was decided, we have lost sight of this understanding—and of Congress’s role, in 1974 and 1988, in taking affirmative steps to bolster, if not enshrine, Bivens. And the real proof of this drift, Pfander persuasively demonstrates, is in lower-court decisions arising out of challenges to post-September 11 counterterrorism policies, where courts have allowed an array of debatable (if not dubious) policy judgments to weigh against recognition of a judge-made damages remedy even for egregious violations of clearly established constitutional rights, most notably the torture of terrorism suspects.

What’s more, these decisions would have left victims of constitutional abuses to state law remedies at the time Bivens was decided. But even that limited avenue is no longer an option, thanks to the 1988 Westfall Act, which has been read to convert all scope-of-employment state tort claims against federal officers into FTCA claims against the federal government. All told, then, the book aspires to “provide[] the tools needed for the Supreme Court to rethink its Bivens jurisprudence,” tools that include (1) a proper understanding of the rich history of judge-made remedies for federal official misconduct; (2) a reassessment of which branch is in the best position to consider the significance of deterrence and indemnification in remedies against government officers; and (3) a recalibration of the doctrine to channel considerations better dealt with elsewhere (e.g., qualified immunity and state secrets) into those avenues. “Only the Supreme Court can implement this new model of litigation,” Pfander concludes, but such a model would “harken[] back to the common-law model that the founders of our Constitution borrowed from England,” and would “enable a federal court to follow the ‘plain path of duty’ identified by Justice Story and ‘to administer the law as it finds it.’”


Contrast Pfander’s exhaustive work (both in this monograph and in his vast body of work on related topics) with the sum total of what Justice Kennedy had to say about all of this history and analysis in his opinion for the 4-2 majority in Abbasi:

In 1871, Congress passed a statute that was later codified at Rev. Stat. § 1979, 42 U.S.C. § 1983. It entitles an injured person to money damages if a state official violates his or her constitutional rights. Congress did not create an analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a specific damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal Government.

In 1971, and against this background, this Court decided Bivens.

No wonder, then, that Justice Kennedy thought it such “a significant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation.” As Pfander’s book (and plenty of other scholarship by Pfander and other scholars) shows, it was never understood to be such a significant step until Bivens constitutionalized what had to that point been common-law damages remedies. Justice Kennedy’s response is that damages remedies are especially problematic in national security cases. But his argument to that effect, as I have suggested elsewhere, is normatively incoherent. Instead, as Pfander argues, national security cases are particularly important contexts for robust judicial remedies, especially after the fact.

Even Justice Breyer’s pointed (for him, anyway) dissent, which cites Pfander’s book, misses the forest for the trees—invoking it in support of the proposition that “It is by now well established that federal law provides damages actions at least in similar contexts, where claims of constitutional violation arise. Congress has ratified Bivens actions, plaintiffs frequently bring them, courts accept them, and scholars defend their importance.” (Emphasis added). A cursory perusal of the cited authority—Pfander’s book—shows that the story is so much richer and the Court’s abandonment of that history in Abbasi so much more troubling.

*                                     *                                     *

Pfander’s book is a Thing I Like Lots for several reasons. Its substance is, in my view, unanswerable (although it would certainly be useful to see what a thoroughgoing academic response would look like). Its bottom line about the significance of a robust judicial role in national security cases, in particular, could not be timelier. And the extent to which the Supreme Court just ran roughshod over the rich historical and doctrinal analysis it provides is, I fear, a powerful indictment not of the utility of contemporary legal scholarship, but of the Justices’ interest in taking it seriously. I am often reminded, when thinking about how judges use scholarship, of the Scottish writer Andrew Lang’s quip about those who use statistics the way drunks use lampposts—seeking support rather than illumination. Pfander’s book is, and should have been, intensely illuminating. That a majority of the Supreme Court saw otherwise is, and ought to be, far more vexing to legal scholars than the suggestion that we are all too busy writing about “the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria.”

Cite as: Steve Vladeck, What Abbasi Should Have Said, JOTWELL (August 15, 2017) (reviewing James E. Pfander, Constitutional Torts and the War on Terror (2017)),

Secrets and Lies in the History of US Adjudication

Amalia Kessler’s book, The Invention of American Exceptionalism, is a rich history of American procedural development. The book, which is meticulously researched, sets procedural developments in their political context, and is an excellent example of a social history of law. She describes the relationship between 19th-century procedural developments and struggles over both capitalism and race. She traces English influences on our history, such as the development of equity practice, and French influences, such as the Freedmen Bureau Courts, which were inspired by French conciliation courts. Among other things, Kessler unearths the American equity tradition and with it fights over judicial power versus lawyer (and jury) power, as well as the development of lawyering as we know it today.  There is too much in the book for me to adequately summarize it, so instead I will offer two vignettes from the book, the first conceptual and the second a narrative, both focused on the antebellum history of equity.

The first, conceptual, vignette describes the requirements of historic equity procedure and helps us understand our own practices by making them strange to us. Indeed, one of the best things about reading a historical study such as this is learning to understand our world in new ways by comparing it with a past understood on its own terms. So it is with the story of equity and the judicial search for truth. The modern cliché is that there was never a better test of truth than the cross examination. This idea, Kessler shows, was invented in the first decades of the nineteenth century by lawyers seeking to show their value to clients and to society. In equity practice at that time, a very different view of how to get to the truth prevailed: the truth would be best obtained in secret, without the pressures of the parties bearing down on witnesses to alter their stories.

In its ideal form, equity practice required that the judicial officer (the chancellor or an appointed magistrate) question witnesses in secret. The officer would take notes on the testimony of the witness without the lawyers or parties present. This was the equivalent of what is known today as a deposition. Because it was in secret, the lawyers could not cross examine the witnesses. Indeed, they did not know what the witness told the judicial officer so they could not use that witness’s testimony to prepare other witnesses or their own clients for their deposition. When all the witness testimony was taken and every piece of evidence admitted, the testimony would be published to the lawyers – that is, it would be made public – and no more evidence could be introduced. At that point, lawyers could use the testimony to argue their case. Secrecy was the path to truth-telling.

This is a very different conception of human psychology than that found in the “crucible of trial” formulation so popular today. Instead of getting at the truth under the pressure of that Perry Mason moment when the witness is confronted by her own lies, the truth is obtained by relieving the pressure and allowing the witness room to be honest without attorney intervention or prompting. If the witness could not be influenced during the proceeding by the lawyer, she was more likely to be truthful. If the attorney could question her and prepare her to conform her testimony to that of other witnesses, she was more likely to misrepresent the truth to favor one or the other of the parties. This is similar to the principle that governs the German system today, as I understand it, in which the judge questions the witnesses and preparing a witness for testimony is an ethical violation. Not so in our system, where lawyers conduct depositions outside the judges’ presence and not preparing a witness is malpractice.

What happened to the idea that truth is best obtained in secret, without lawyer involvement? In his masterful history of procedure, How Equity Conquered the Common Law, Steve Subrin argued that the Federal Rules of Civil Procedure largely represent equitable practices rather than those of common law courts. Yet our rules and trial procedures depend on lawyer-led interrogation with no judge present; we cannot even imagine judges questioning witnesses in secret unless the matter concerned national security. How can this be? The answer is partly structural. The equity courts during the period Kessler covers were understaffed and therefore appointed magistrates, rather than permanent commissioners, to interview witnesses. Because the magistrates were not familiar with the case and were sometimes in the pockets of the lawyers, they became increasingly dependent on the questions lawyers submitted in advance of depositions. In fact, they became something more like stenographers than investigators.  Ultimately, driven by the fiscal and structural constraints and by the constant pressure of the bar, equity courts in New York abandoned secrecy and permitted lawyers to attend depositions. The problems and complaints about equity meant that for many years—and especially as his tenure neared its end—Chancellor Kent may have been one of the most hated men in New York. (Kent was one of the most famous jurists of his day and is often praised in procedural histories as the father of equity practice in the United States).

Lawyers, argues Kessler, wanted the opportunity to show off to justify their fees, and the way to do that was to transform litigation into a kind of spectacle, which in turn required lawyers to erode the secrecy that characterized equity practice. Secrecy limited their ability to perform for their client. Lawyers styled themselves as great orators, comparing their role favorably to Cicero, and attempted to reposition themselves as servants of the public good so that they might stave off accusations that they were manipulating legal process to increase their fees. The accusation that “doing well by doing good” is self-serving clap-trap should sound familiar to the modern ear.

One could not reasonably disagree with Kessler’s assessment that manipulation was part of the story of professionalization of the bar that in the mid-1800s. But there is something incomplete about this description of lawyers (then and now). The example that comes to mind is Richard Henry Dana, a Boston lawyer who in the 1840s and 50s represented fugitive slaves and persons tried for attempting to forcibly free them, as well as commercial clients. Dana wrote in his diary that his representation of fugitives brought him support from the Boston community and thus more clients, helping him to build his commercial legal practice. But Dana took a risk standing up to the slave power, which was strong in Boston (where the local mercantile elite benefitted greatly from slavery), and was attacked and severely beaten by a ruffian on the streets of Boston for doing so.

The issue of controlling lawyer behavior is a theme that runs through the book, one that is crucial to the policy questions (past and present) about lawyer-versus-judicial control over proceedings. This is one core aspect of the adversarialism to which Kessler’s title refers. And it brings me to the second vignette, a wonderful story from the courts of equity in late-seventeenth-century England that provides great insight.

A lawyer managed to get his case into the chancery court and this gave him an advantage over his adversary, who was only familiar with common law practices. How so? The lawyer knew the commissioner who had taken the testimony of his witness in the case and obtained (wrongfully) the transcript of that witness’s testimony. Recall that once all the evidence was taken in a case at equity, the judge closed the case by “publishing” the deposition transcripts. This lawyer took it upon himself to publicize the transcript after the first witness (his witness) had testified. He did this by coming to his rival’s office and reading the statement to him out loud. The common-law lawyer took his client immediately to the equity court and asked to provide his client’s side of the story. Unfamiliar with equity practices, he revealed to the commissioner that his opponent had read him the testimony. This was a disaster for his client. The commissioner told him that he would now close the case to further evidence, as the testimony had been publicized.

What does this story teach us? That some gamesmanship is unavoidable in any procedural system, and always has been – at least since the late 1600s. No matter what rules are adopted or protections created, unscrupulous actors will abuse their power, cheat their adversary, and distort the system of which they are a part. Within the judicial system, this is true not only of lawyers, but also of judges and magistrates. A court system, in the end, depends on the people who use it and the people who staff it. The problem, in other words, is not only the system but the participants. Out of the crooked timber of humanity, no straight thing was ever made.

The procedural system plays a crucial role in what people can and cannot get away with, and the norms within that system play a role in what people will and will not do. However well-designed the system, abuses are inevitable.   The philosopher Stewart Hampshire argued that moral conflict is eternal and that one must focus on procedures that allow contestation of moral norms. The court system offers one such set of procedures, but they are always eroding, in need of shoring up, and in danger of being distorted. The procedures themselves are a site of moral conflict. Kessler’s book is important because it reminds us both that these battles have been going on forever and that understanding past fights helps open possibilities for reform in the inevitable future conflicts.

Cite as: Alexandra D. Lahav, Secrets and Lies in the History of US Adjudication, JOTWELL (July 18, 2017) (reviewing Amalia Kessler, The Invention of American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 (2017)),

On Gender Disparity and Dialogue

Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017), available at SSRN.

Jennifer Mika’s essay examining the scarcity of women arguing before the Supreme Court is a valuable contribution to a growing literature tracking gender disparities at all stages of the legal profession. Research has examined disparities in the way men and women experience the law school classroom, interact with professors, obtain clerkships, make partner at private firms, enter academia, gain tenure, and leave the profession altogether. Mika has made several contributions to this area of research.

In her latest work, Mika’s findings are stark. She draws upon two original data sets: one including every attorney who argued before the Supreme Court during the 2015-2016 term; the other including every attorney who has argued more than once in any term since 2010. During the 2015-2016 term, of the 117 people who argued before the Supreme Court, only 20 were women, or 17%. And since 2010, only 15 of 80 advocates who argued more than one case before the Supreme Court, or 19%, were women.

Mika also accumulated revealing data regarding the employers of the men and women who argued before the Court. During the 2015-2016 term, of the women who argued, 35% were from the Office of the Solicitor General, another 35% were employed by other federal government entities (for example, attorneys from various divisions of the Department of Justice) or state governments, and 25% were in private practice. This distribution contrasts sharply with the distribution of men: only 12% were from the Office of the Solicitor General, 16% were employed by federal or state governments, and 67% were from private practice. In other words, women were much less likely than men to argue before the Supreme Court from private practice. Indeed, only four of the 80 repeat advocates since 2010 were from private practice.

From there, Mika suggests possible explanations for the disparities. Here, the essay is admirably restrained: legal scholars often try to point to a single factor as the explanation for the phenomenon they are discussing. Mika, on the other hand, emphasizes that the explanations for the disparity are likely multiple and that her discussion is likely incomplete. Rather than attempting anything like an exhaustive explanation, she focuses on two possible causes.

The first and more persuasive explanation is the paucity of women partners at private law firms. A woman in private practice who argues before the Supreme Court will most likely be a partner, not an associate. And since women are dramatically underrepresented among partners at private law firms, it is statistically less likely that clients who seek representation from the private sector will select a woman advocate rather than a man. Of course, this explanation merely leads to another question: why are there fewer women than men who are partners at law firms? Since many law firms now hire men and women in equal numbers, the disparity at the partner level is due to attrition. A significant literature has contemplated the causes of this attrition, with plausible hypotheses ranging from the “old boys club” atmosphere of some firms, to a lack of female mentorship, to parental leave policies that disadvantage women, to subtle and perhaps subconscious bias against women that creates a negative work environment, to straightforward discrimination because of gender.

Whatever the cause of the dearth of women partners, Mika does not contemplate an interesting and related question. Suppose that the numbers of men and women partners at private law firms were equal. Would the disparity in the number who argue before the Supreme Court disappear as well? One can think of reasons that perhaps it might not. For example, even if women partners are available in equal numbers, biases among private sector clients might lead to a preference for men as Supreme Court advocates. Moreover, the most relevant comparison is arguably not to law firm partners as a whole, but to the subset of law-firm partners running the appellate practice subgroups in large law firms or working at boutique appellate litigate firms. This specialized subset of partners is disproportionately comprised of former Solicitor Generals or Deputy Solicitor Generals, who also tend to be men—indeed, the only female former Solicitor General, Justice Elena Kagan, is for obvious reasons conflicted out of arguing before the Court.

Somewhat less persuasive is Mika’s evidence for a clear causal link between clerking and becoming a Supreme Court advocate. Most Supreme Court advocates have clerked, and of those a not-insignificant subset have clerked on the Supreme Court. Mika observes that—of repeat advocates since 2010—53% of women advocates and 65% of men advocates have clerked on the Supreme Court. She reasons: “[w]hile Supreme Court clerkship experience does not appear to directly impact an advocate’s likelihood of becoming a Supreme Court advocate generally, it does appear to be an important experience for attorneys interested in becoming a frequent Supreme Court advocate and, by extension, a Supreme Court expert.” She further observes that fewer than one-third of Supreme Court clerks have been women in each year since 2010. While the connection among clerking, clerking on the Supreme Court, and becoming an advocate before the Supreme Court is intuitively plausible, the data suggest there is a relationship between the latter two, but that a Supreme Court clerkship is by no means a requirement. Nearly half of women and over a third of men who become repeat advocates before the Court do so without a Supreme Court clerkship. Still, Mika’s framing of the possible connection is appropriately limited, and she notes that future research may illuminate—or eliminate—the possibility of a causal link.

More broadly, Mika explains that her essay “strives to start a dialogue about how the gender gap in Supreme Court advocacy can be closed.” The goal is admirable given that many people are determined not to have conversations about gender disparities in general, and gender disparities within the legal profession in particular.

A decade ago, when I was a third-year law student, I noticed a striking gender disparity in the notes published in the Stanford Law Review each year. As a member of that journal, I sought information from my fellow editors about the number of men and women who submitted notes for publication. I reasoned that a publication disparity that tracked a disparity in the number who submitted notes would suggest one explanation, while a publication disparity greater than the submission disparity would suggest another. But the issue remained unexplored: my fellow editors informed me that providing me with the information I sought would raise “confidentiality concerns.” Of course, that explanation could not be the real explanation: someone had the information about who had submitted notes each year, and all I needed was the total number of men and of women who submitted notes, not their actual names.

Dialogue resistance continues today. Not long ago Brian Leiter published a set of his citation rankings, and I wrote up a blog post in which I considered why most of the most cited academics are men. A senior white male professor vehemently insisted to me on social media that obviously men are cited more than women because men publish more than women. When I responded with some data indicating a disparity in per-paper citations, he dismissed it by saying that men and women were both cited “between eight and sixteen times per paper.” Without picking up my calculator, I was pretty sure that the difference between eight and sixteen was a fairly substantial one—and I was pretty sure my interlocutor knew it—but he was tenured and at the time I was not. So I let it go.

The larger point is simply that we should not let the dialogue go. We should not be afraid of asking hard questions, of collecting data and allowing those data to lead us to the most plausible conclusions. My sense is that many well-credentialed white men are, on some level, afraid of examining gender disparities because they are afraid of what it might say about their own achievements. Investigation might well reveal that their accomplishments are due not only to intelligence, skill, and hard work, but also to social factors ranging from implicit bias to workplace leave policies. Admitting that the playing field might not be entirely level forces us to confront the possibility that at some point, some of us might have gotten things we did not earn purely on merit. That is a hard thing to confront. But a fear of the truth is not a reason to avoid dialogue about gender disparity.

Mika’s paper presents interesting and important data and discusses those data in a thoughtful way. Future investigators would do well to build upon her research. Her work contributes to the gender disparity dialogue, and I liked it a lot.

Cite as: Nancy Leong, On Gender Disparity and Dialogue, JOTWELL (June 16, 2017) (reviewing Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017), available at SSRN),

Rethinking Judicial Independence

Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. (forthcoming 2018), available at SSRN.

It is an extraordinary time when the following sentence—“it is hard to underestimate the importance of [X]”—has a plethora of topics all credibly vying for the position of “X.” Appreciating the competition, one would be hard-pressed not to include the independence of the judiciary as a prime candidate. When the eventual President calls into question the impartiality of a judge based on the judge’s “heritage” or when a court’s ruling on the administration’s travel ban might not be heeded, at least two conclusions can be drawn. First, the independence of the judiciary is presently being tested. Second, the independence of the judiciary may well be needed more than ever. Against such a backdrop, it is vital for current scholarship to provide a way to think through and assess that independence.

Enter Tara Leigh Grove’s thoughtful new article, The Origins (and Fragility) of Judicial Independence.

Drawing in part from her own (excellent) past work, Grove undertakes a significant examination of the independence of the federal judiciary. She traces the historical arcs of several key contestations between the judicial branch and one of its sibling branches, including the failure to comply with a court order, the potential removal of a judicial officer outside the impeachment process, and court packing. Though these contestations have received scholarly attention before, Grove brings them together in a new way. In so doing, she provides a persuasive account of how these various attempts to curb the courts were not only not verboten, but were embraced in the early days of the judiciary—and how political actors ultimately reversed their course.

To focus on one key interbranch standoff, Grove provides an important analysis of the history of court packing. Contrary to its current “off-the-wall” status (to use a Jack Balkinism), Grove points out that in the nineteenth century, Congress several times packed and unpacked the Supreme Court, at least in part for partisan gain. The article then examines FDR’s infamous 1937 proposal to increase the size of the Court and the debates surrounding that plan. (Here, Grove keeps good company. Others, such as my colleagues Curt Bradley and Neil Siegel, have also done important work identifying the constitutional conventions surrounding court packing.) For Grove, the point is that although there was some pushback against the President’s plan when first proposed, it was not until the late 1950s that court packing came to be viewed as a “negative precedent,” based on the way political actors publicly spoke about the ill-fated attempt. That treatment continues even to this day. Grove points to comments made in the context of now-Justice Gorsuch’s nomination to the Supreme Court to show that the convention against court packing is alive and well.

Grove ultimately draws together this and other episodes to make a larger statement about the independence of the judiciary. To use the author’s words, what we may today take for granted—specifically, the existence of certain norms or conventions against various court-curbing measures—we may need to reconsider. The text and structure of our Constitution do not put them in place. And Grove’s careful rendering of the past informs us that none of the attempts to encroach upon the judiciary’s power had to be resolved as each was. Those of us playing at home should keep in mind the contingent nature of the courts’ trajectory, and that what has been done can be undone in the future.This article makes a substantial contribution to the existing literature on judicial independence and simultaneously prompts several important questions. For one, might there be other ways of gauging judicial independence beyond the clearly significant ones Grove investigates? For example, in the early 2000s Congress contemplated requiring courts of appeals to publish all of their opinions, contrary to the courts’ own decision(s) to dispose a majority of cases via “unpublished” orders. This led to a confrontation between Congress and the judiciary and a question about the extent to which the courts’ own power to decide the form of its decisions could be curbed. I mention this point not to begin a game of everyone-pull-out-their-favorite-interbranch-contestation (that should be reserved strictly for social gatherings), but to question how we know we are looking at the “right” moments between the judiciary and its sibling branches and whether it might be worth including others in the canon.

Another question looks beyond the federal courts to their state counterparts. To again focus on court packing, it is remarkable how this court-curbing measure is “off the wall” with respect to the former, but is apparently on-the-wall with respect to the latter. A new report by Alicia Bannon and Nathaniel Sobel at the Brennan Center documents an increased politicization of state courts through various legislative measures, including recent attempts to increase or decrease the size of state appellate courts across the country. We might wonder more broadly to what extent conventions within the federal judiciary translate to the states. If the answer is “not much,” we should ask why this is so, and what this means for the independence of our state courts.

These questions further underscore the importance of what Grove has hit upon. The Origins (and Fragility) of Judicial Independence provides a careful and persuasive account of a vital topic, making a substantial contribution to an already robust literature. Such a contribution is critical now. One can only hope that her conclusion about the judiciary’s fragile independence is not tested any time soon.

Cite as: Marin Levy, Rethinking Judicial Independence, JOTWELL (June 5, 2017) (reviewing Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. (forthcoming 2018), available at SSRN),

What Judges Can Do About Implicit Bias

Andrew J. Wistrich & Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, in Ensuring Justice: Reducing Bias 87 (Sarah Redfield ed., forthcoming 2017), available at SSRN.

For some years now, scholars have discussed the influence of implicit bias on decision-making. While many argue that conscious bias is decreasing,1 studies show that the impact of unconscious bias is significant. Although scholars, including Judge Andrew Wistrich and Jeffrey Rachlinski, have shown that judges possess such bias, judges—SCOTUS included—have not been sufficiently aware of the problem. The relatively recent change to the standard for dismissing a claim on a Rule 12(b)(6) motion illustrates this point.

In Bell Atlantic Corporation v. Twombly, Justice Souter formulated the new plausibility standard for deciding whether a claim should be dismissed. Later, in Ashcroft v. Iqbal, Justice Kennedy expounded on this new interpretation, stating that a judge should rely on her “judicial experience and common sense” to decide whether a claim should be dismissed. Despite the importance of this modern invocation, the Court cited no evidence to support relying on these intuitions. Scholars, including Steve Burbank, publicly questioned the use of this information as inviting subjective judgments by judges to dismiss cases that they disfavor. But courts continue to embrace this SCOTUS-endorsed phrase and employ it in their quest to decide whether claims should be dismissed. Should they?

Judge Wistrich and Rachlinski’s important contribution to a new American Bar Association book, Ensuring Justice: Reducing Bias, should call into question the Iqbal rule that courts use their judicial experience and common sense. The authors show that judges’ decision-making may be compromised by implicit bias and discuss what judges can do to combat this bias.

The authors first explain that people decide in two different ways: intuitive and deliberative. Intuitive decision-making is instinctual and emotional—referred to at times by psychologists as System 1 reasoning. Deliberative decision-making involves consciousness, effort, and time and is referred to at times by psychologists as System 2 reasoning. Where the two types of reasoning conflict, people—including judges—tend to rely on intuition.

But intuition can hamper judicial decision-making. For example, studies have shown that a number that is irrelevant to a determination of damages can influence a judge’s decision regarding damages and that a judge likely also will consider inadmissible evidence. Additionally, while judges may deny the influence of emotions, emotions are a part of intuitive decision-making. Based on irrelevant emotions, judges may decide an issue of statutory interpretation favorably for the defendant because of certain characteristics of that individual, such as why they took a drug. Intuition also tends to make people possess bias toward their own groups. For example, a study demonstrated that a group of judges exhibited bias toward litigants from their own state. Racial bias may be another type of in-group bias. Using the Implicit Association Test (IAT), the authors found that judges possess the same level of implicit bias against African-Americans as most lay adults.

These studies show judges are human—sharing problems that the rest of us face. Thankfully, judges can try to combat these issues. First, deliberative, System 2 decision-making can help judges avert their reliance on intuition—that is, knowing they have bias can help judges avoid their bias. Second, several different tests and methods can aid judges. For example, they can take the IAT, which permits them to understand that they may need to account for implicit bias and alerts others to the need for training judges who possess such bias. Because judges tend to think they are better than most at avoiding racial bias, actually taking the test will be a particularly useful first step to lessen the effects of bias.

In addition to awareness through the IAT, the authors propose a variety of ways to combat bias, only a few of which I highlight here. Increasing from one to three the number of trial judges who decide any important issue is a particularly innovative, interesting proposal. While the authors recognize the difficulty of implementation given the current allocation of resources, their idea is compelling because of the noted research on how outcomes improve by increasing diversity on appellate panels. Additionally, I want to point out that historically the importance of more than one judge deciding an issue was recognized. In late eighteenth-century England, a panel of three judges would determine issues such as whether a new trial should be ordered in a case or whether a case should be dismissed on a demurrer.

The authors propose a number of other ways to reduce implicit bias in the judiciary. Another favorite of mine is mindfulness meditation. Mindfulness is popular these days. It’s used in companies and classrooms to train people to recognize their thoughts and emotions that arise, but to let go of them to be in the present. We encourage students at the University of Illinois to consider practicing it to reduce stress. The authors argue that mindfulness may help judges curb their reliance on inappropriate reactions.

Judge Wistrich and Rachlinski recognize that there are also indirect ways that implicit bias can be countered. For example, judges may rely less on intuitive decision-making if the time for decision-making were increased and more written opinions were required.

The authors also emphasize that others who help judges, such as police and prosecutors, should be trained to combat the implicit bias that they possess.

Judge Wistrich and Rachlinski’s chapter and previous work on implicit bias in the judiciary are incredibly important. The chapter helps us to understand influences on judicial decision-making and how to combat these problems. Through the chapter, the ABA book, and other efforts, such as training of judges by the Federal Judicial Center under the leadership of Judge Jeremy Fogel, important efforts to reduce implicit bias are underway.

Lastly, the authors’ chapter on implicit bias should specifically call into question the Supreme Court’s admonition in Iqbal that judges should rely on their “judicial experience and common sense”—a phrase—as I mentioned—that the trial and appellate courts continue to invoke in their opinions.

  1. Despite these arguments, my co-author and I show that quite a bit of conscious bias remains in employment settings. Sandra Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law (2017). []
Cite as: Suja A. Thomas, What Judges Can Do About Implicit Bias, JOTWELL (May 22, 2017) (reviewing Andrew J. Wistrich & Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, in Ensuring Justice: Reducing Bias 87 (Sarah Redfield ed., forthcoming 2017), available at SSRN),