Yearly Archives: 2018

Take Down the List

Apr 9, 2018 Suja A. Thomas1 comment

Are judges motivated by incentives? A recent study by Miguel de Figueiredo, Alexandra D. Lahav, and Peter Siegelman concludes that they can be and shows much more. Nancy Gertner, a former judge and currently a Senior Lecturer at Harvard Law School, suggested the research. Gertner was concerned that the so-called Six Month List causes judges to engage in actions that they otherwise would not take—such as dismissing cases. The List requires the Administrative Office of the United States Courts to report motions pending before federal district judges for more than six months and cases pending for more than three years. Some time ago, after I gave a talk on summary judgment, a judge stated a belief similar to Gertner’s that judges dismiss cases on summary judgment because of administrative deadlines.

We should be concerned about what these judges are saying. Thankfully, the authors have carefully analyzed this issue. The most important conclusion of their study is this: the List should be abolished. After the List’s existence and acceptance for almost thirty years, that conclusion is both remarkable and alarming.

Under the Civil Justice Reform Act (CJRA), the Administrative Office publicly reports twice a year—on March 31 and September 30—when judges have cases that are older than three years and motions pending more than six months. There is a grace period of 30 days for motions so a judge has at least 214 days to decide a motion before being reported on the List.

The purpose of the List was to lessen the time that judges take to dispose of cases and motions, thus making the processing of cases faster and cheaper. Both sides of the aisle favored the List despite reliance on mere anecdotes of slow judges and the lack of study of the supposed problem and solution.

So, does the List work? Do cases close faster, and are motions decided more quickly than they would be otherwise? The authors’ answers are respectively no and yes and no. Perhaps more importantly, even in circumstances where the List somewhat accomplishes the goal of faster dispositions, the authors show significant, unintended bad consequences.

For their study, for case information, the authors looked at Administrative Office data from 1980 to 2017 and interviewed lawyers, judges, and court administrators. They analyzed the differences between closures of cases in weeks 13 and 39 (the weeks of March 31 and September 30) versus the closures of cases in other weeks before and after the effective date of the CJRA. For motions, they used a hand-coded random sample of almost 800 summary judgment motions filed between August 1 and September 30, 2011. They compared motions that were eligible for the March List with motions that were not eligible for that List. If a motion had been filed on August 29, 2011, it would need to be completed within 214 days—by March 31, 2012—to stay off the List, while a motion filed just two days later (on August 31, 2011) would need to be completed within 397 days—only by September 30, 2012—to stay off the List.

The authors found that the List has influenced judicial behavior, with case closures spiking in List weeks. Consistent with this, one judge reported that “[n]o judge likes being on this ‘report of shame.’”

The study has a number of other important results. The authors discovered that the three-year pending cases reporting requirement does not cause cases to close any faster. They believe that because judges already close most cases within three years, the reporting requirement is essentially irrelevant.

Motions, however, are significantly affected by the List. It takes 10-40 days fewer or 6-25% less in time for just-eligible summary judgment motions versus just-ineligible summary judgment motions. It is important to note that only motions that would have taken six months to resolve without the deadline are affected. In other words, the List does not affect motions with very short or very long durations.

In some ways the results simply show that judges act like most of us act. They are incentivized by deadlines and don’t want to look bad in comparison to peers.

The most significant results, however, demonstrate the unintended consequences of the List. Approximately 20% of the motions that judges did not decide from the August group (which were placed on the March List) were not decided until three weeks before the next List date of September. In other words, if a judge did not make the first deadline, he had little incentive to finish the case any earlier than the next deadline. So, the List may cause delay in some circumstances.

The List also may change outcomes. For example, eligible cases decided near the List time were 18% more likely to favor defendants than those decided at other times, and cases closed during List weeks had a 40% increased likelihood of being remanded on appeal—which may mean that they were decided incorrectly.

Given the high rate of summary judgment in civil rights cases, including employment discrimination cases, it was interesting that the study found that no specific case types were decided more frequently at the deadline or had a particular result.

The authors discuss the costs of the List, such as administrative expenses and the possibility of error. They also discuss the benefits of the List, including the savings of 10-40 days for the average motion, which could result in a positive monetary gain to the prevailing party. However, the authors conclude that the costs exceed the benefits, recommending that the List should be eliminated. Given the unlikelihood of this happening soon, they propose that more and different information, such as publishing the average or median duration of cases or motions, be provided to decrease the incentives to comply with the List.

The study of the List is one of the most important studies relating to the federal courts to come out in years. It illustrates the problems with congressional change that is motivated by anecdote and not by careful study. Most significantly, it shows that Congress should eliminate the List, which lessens justice in the federal courts.

Statutory Interpretation for Courts and Lawyers

Mar 26, 2018 James E. Pfander1 comment

Since the New Deal, when more information became available about the hearings and reports that accompanied the passage of bills through Congress, lawyers and judges have been fighting over how to read legislation. Law professors have joined the fray, debating questions such as how far courts can stray from the plain meaning of the text and how reliably courts can look to legislative history in attempting to make sense of the words of the statute. Every interpretive method promises fidelity to Congress as the first branch of government, but the methods deliver very different forms of fidelity. Some prize the words themselves, using dictionaries and canons to give them meaning; others look for meaning in the purposes and debates that animated the legislation.

Enter Victoria Nourse. In a series of articles drawing on her experience as a key staffer in Congress, Nourse argues that we should all take a class in Congress 101. That is, both textualists and purposivists approach the words of a statute with a shared misunderstanding of the way members of Congress do their work. The words of the statute count in Nourse’s telling, but they must be read with an appreciation of the nature of the legislative process. That insight, shared with positive political theorists, sets the stage for Nourse’s critique of modern methods of interpretation and her attempt to construct an alternative approach, one she calls a “legislative decision” mode of interpretation.

Nourse bases her approach to interpretation on a deep appreciation for the rules that structure the way bills become law. On this view, statutes emerge not from a process of careful and iterative drafting in which all the members sharpen their quills, but from an intensely political process. Nourse calls it an election. To win, a bill must attain a supermajority vote in the Senate (that is one key rule of the legislative decision process). To understand the compromises that led to the bill’s passage, one has to attend to the choices that allowed its sponsors to round up sixty votes in the Senate. Cheap-talk speeches by proponents and opponents tell us little about those crucial compromises. Instead, we must attend to the drafting choices at mark-up and during floor debate, when costly choices are being made to secure the votes needed. To figure out what happened, it may be necessary to reverse engineer the legislative process to home in on the crucial inflection point around which the supermajority coalesced. Other rules govern the process of compromise. When a conference committee meets to resolve differences between the House and Senate, it acts within a set of rules that narrows its options. Conferees cannot fashion new or more ambitious approaches.

Nourse takes this insider’s guide to the legislative process and applies it to a range of familiar statutory-interpretation problems. Consider the Supreme Court’s approach to the discriminatory impact of tests and other job requirements in Griggs v. Duke Power. Much was made at the Court of the defeat of the Tower amendment as part of the Senate’s deliberations over Title VII. Nourse explains that Tower was a loser in the election, trying to reopen the deal that had ended the Senate filibuster; defeat of the Tower amendment thus tells us little about the deal struck to get to sixty votes in the Senate. Or the lengthy legislative history Justice Rehnquist compiled in his dissent from the decision in United Steelworkers v. Weber to allow affirmative action programs by private employers. Nourse shows that the Rehnquist dissent focuses on legislative history that occurred months before the addition of the key textual provision during Senate deliberations.

Or the Court’s interpretation of the term “utilize” in Public Citizen v. DOJ, which asked whether the President had “established or utilized” the ABA for purposes of judicial evaluations and was thus obliged to ensure that their meetings were open and their membership balanced. The Court labored to avoid a finding that the President “utilized” or used the ABA, but Nourse shows that the Court might have avoided this struggle through careful attention to the origins of the text’s “or utilized” language, which first appeared in the conference substitute. Since both the House and Senate had agreed on “established” and since legislative decision rules prohibit conferees from changing text on which both chambers have agreed, the right thing to do was to ignore the nettlesome addition.

Finally, Nourse tackles the fate of the snail darter, which came to the Court as a conflict between the Endangered Species Act and a series of appropriations bills that had funded the dam that was said to threaten the darter. Nourse shows that the Court backed the wrong statute, in effect treating the ESA as taking precedence while members of Congress would have surely regarded appropriations legislation as controlling.

Nourse draws general conclusions from these examples. We should not waste too much time on the early versions of legislation, but should attend more carefully to late-stage developments. She criticizes scholars and courts for the way they talk about the legislative process. True, the process of holding statutory elections can produce messy laws. But no member ran for a seat in Congress on their drafting prowess; the people care about policy and not about the nice interpretive questions that occupy the scriveners on the federal bench. Nourse offers a thoughtful defense of legislation—it is different from the process that judges deploy to settle disputes over meaning. For Nourse, true fidelity to the legislative process calls for a greater appreciation of the way it really works. Hence her argument, reflected in the book’s title, that courts today approach statutes in a way that misreads the law and misunderstands the democratic (legislative) process.

Nourse writes in an engaging and accessible style and offers a model of interpretation that lawyers and judges can understand and “utilize.” One comes away from the book wishing Nourse had tackled more examples of flawed interpretation, had reverse engineered more statutes, had shed light on more instances in which courts, in the course of demeaning their legislative colleagues, reached conclusions that would have mystified those involved in the lawmaking process. But perhaps that is work we will have to do for ourselves, now that Nourse has illuminated the rules of Congress 101.

“And the Deposition Goes to the Gentleman in the Blue Pinstripe Suit”

Mar 12, 2018 Jay TidmarshAdd a Comment

A burgeoning procedural literature explores the power of parties to alter the procedural entitlements of the civil-justice system by means of contractual agreement and the limits of that power. The most dramatic example of such bargaining is the agreement to arbitrate, although bargaining also can occur within the context of a civil lawsuit. As Ronen Avraham, William Hubbard, and Itay Lipschits argue in a fascinating new paper, this literature has focused almost exclusively on a single question: which procedures are subject to contractual negotiation and which are not? No one believes that the parties can by contract agree to let the judge flip a coin to determine the winner, but most scholars believe that parties can contract for fewer depositions or requests for production. The debate has centered on distinguishing “core” procedural rights that are not subject to negotiation from non-“core” rights that can be bargained away.

While largely accepting that distinction, the authors challenge extant efforts to establish the limits of procedural flexibility by means of this “core” metric. They make two critical points. First, the distinction between the core that is non-negotiable and the non-core procedural rights subject to horse-trading is slippery at best. There is widespread agreement that core rights are those whose alteration through party negotiation might impair the interests of third parties, might impose additional burdens on the court, or might impinge on reasoned judicial decision-making. The parties’ inability to contract for a coin flip by the judge falls within this last category. But the sacrifice of non-core rights (say, bargaining away the right to take depositions) can affect the information on which the judge’s decision is based and thus deflate the quality and accuracy of judicial decision-making. Even assuming that lines can be drawn, the authors demonstrate that many “core” rights, which should in theory apply uniformly in all cases, are subject to great variability and flexibility in practice, with different judges (and sometimes even the same judge) adopting different procedures in different cases to reason their way to the result.

The second criticism — and the paper’s critical insight — is the all-or-nothing nature of the distinction.

On the standard scholarly account, any right within the core applies uniformly in all civil cases; any right outside the core is always subject to negotiation. Avraham, Hubbard, and Lipschits argue that this rigidity fails to recognize two additional dimensions along which cases can be procedurally flexible. One dimension is the nature of the lawsuit — perhaps the core is large in cases of significant social or legal import and small in cases the authors call “routine” (for the most part, cases presenting only factual disputes whose resolution matters only to the parties themselves). The parties should be unable to bargain away most rights in non-routine cases; even a bargain to limit the number of depositions may be off limits if it unduly affects the quality of information available to the judge making a decision likely to have broad precedential effect. Conversely, when the outcome of a case has no effect beyond the parties to the dispute, they should be able to structure the dispute-resolution process in almost any way they wish.

The other dimension that should bear on the question of procedural flexibility is methods or means. Here the authors launch their most provocative claim: that we should create markets in procedural entitlements. As the authors correctly point out, all the literature on the limits of procedural flexibility through contractual modification assumes that the negotiation occurs only between the parties to the suit: if the defendant wants to take more (or fewer) depositions, he must bargain with the plaintiff to make that deal. “Why?” the authors ask. Creating a secondary market in freely tradable procedural entitlements allows parties to realize some of the value of their claims or defenses even when they lose. Under Federal Rule of Civil Procedure 30(a)(2)(A)(i), every party is entitled to take ten depositions; if I need an extra five depositions, why can’t I buy them from a litigant in another case, who intends to use only five of the allotted ten? Under Federal Rule of Appellate Procedure 32(a)(7)(B)(i), a principal brief may contain no more than 13,000 words; if I need an extra 5,000 words to make my argument on appeal, why can’t I get them from a vendor who has bought up the word allotments from parties who are more parsimonious with language than I am?

The authors suggest two principal ways through which a market in freely tradable procedural opportunities might be created. The first is a cap-and-trade system, akin to pollution-control regimes, in which a central decision-maker (Congress? The Supreme Court? The Administrative Office of U.S. Courts?) sets a cap on the amount of procedural entitlement available for purchase, then allows the entitlement holders to reap the value of the entitlement by selling it to others. The second is a government auction, akin to the government’s allocation of broadband spectrum, in which the government sells entitlements either to litigants or to vendors with whom litigants can then deal. The authors propose that the realized funds from the second approach be dedicated to improving the justice system and providing legal services to the underrepresented.

Framing the “procedure as contract” debate along these three dimensions — “which procedures,” “which cases,” and “which type of flexibility” — raises numerous implementation difficulties that the authors seek to address. On the second question (“which cases”), the authors state — somewhat controversially in my judgment — that ninety-nine percent of all cases are “routine,” and thus subject to broad-based negotiation about the shape of the procedural forms that will resolve the claims and defenses. They admit that a judge may need to determine whether a lawsuit is routine early in the case, and that the judge might be wrong. But they argue that default rules (for instance, class actions and multidistrict litigation proceedings are never routine) and other markers (for instance, the appearance of intervenors or amici make the case not routine) will provide reliable guides in most instances.

The authors spend more time sorting out theoretical and implemental issues for the headline-grabbing third question (“which type of flexibility”). They recognize that a cap-and-trade approach creates problems. Setting the cap at the right level is one issue: how many depositions and how many words, in total, should the civil-justice system countenance? Providing the entitlement to the right people is another. If entitlements are allocated on the basis of party status, the system creates an incentive for people to flood the courts with lawsuits whose sole purpose is to market litigation rights. But other methods of distributing entitlements, such as giving each citizen an annual or lifetime allotment of depositions, seem impractical.

The authors find the auction method more promising, although the intervention of major players — think private-equity firms that snarf up all the depositions for the year — may be an unappealing prospect for some. But the authors argue that these proposals will be allocatively efficient and will reduce the negative externalities associated with litigation, just as cap-and-trade systems have markedly decreased the externalities from pollution. As a distributional matter, permitting procedural trading will not favor the rich any more than the present system, in which litigants already get only as much justice as they can afford to purchase. Of course, cap-and-trade or auction markets in procedural entitlements are subject to the charge that they commodify justice, to which the authors respond: That’s right, and if you can’t abide that fact, then these proposals are not for you. But the authors do not close on a take-it-or-leave-it note. They show how market mechanisms may enhance (or least not retard) the quality of dispute resolution, aid in norm creation, and enhance democracy. In short, there is something to like about this proposal even if you hold a normative rather than economic perspective on procedural rights.

I was fortunate to obtain a very preliminary draft of this paper, and I recognize that the authors’ thoughts may evolve as they work through the details of their proposals. Some of their claims about the scope or operation of procedural rules are broad and lack the nuance that later footnotes will presumably provide. But quibbles about the description of present doctrine are beside the point in an article whose goal — successfully accomplished, in my judgment — is to get all of us to think outside of the usual boxes in the procedure-as-contract debate. Its creative genius is to show procedural entitlements in an entirely new light — not as transaction costs sullenly tolerated only to the extent that they cut error costs at the margin by improving accuracy, but also as a source of positive value for those who hold procedural entitlements.

The exact relationship among the three modes of flexibility is unclear in the present draft. The authors do not state definitively whether a market in procedural rights should exist only in “routine” cases in which party bargaining over procedural form has the greatest latitude. Assuming a functional market in procedural entitlements, is there any reason why parties in a complex and socially important class action should get only the entitlements that the judge permits, while parties in routine litigation can purchase greater quantities of entitlements? The authors do not discuss how a market in entitlements fits with a large unchangeable core of entitlements in non-routine cases, nor the exact content of the core in routine and non-routine cases. It is hard to see how robust this market in entitlements will be, at least in the cases that matter.

The authors show some sensitivity to the ways in which the exercise of procedural rights can harm third persons and seem to accept tacitly the premise that the scope and extent of procedural opportunities can affect the outcomes that parties can expect. Whether in this paper or another, they must better sort out whether a market in entitlements might help well-financed parties engage in scorched-earth tactics to avoid liability. At one point they suggest that if a party buys 10,000 more words for itself, it might be required to purchase the same number for its opponent. But it remains unclear whether there should be a more general hold-harmless rule to prevent the imposition of costs on opposing parties and third persons.

The effect of this system on the litigants also deserves further reflection. In some cases, the ability to purchase additional procedural opportunities might enhance agency costs, whether they arise from an hourly-fee lawyer seeking to squeeze out more fees from the lawsuit or a contingency-fee lawyer fronting the purchase price and settling the case on the cheap to ensure recovery of the additional cost.

The choice of method to market procedural entitlements also presents an important distributional question for which there is no definite answer. Cap-and-trade gives the value of the entitlements to their holders (whether they be the parties or the citizenry as a whole). Auction gives the value to the government, which created the entitlements in the first instance. Unless the bidders at auction are limited to present litigants, however, it is likely that a sizable chunk of that value will fall to highly capitalized jobbers who will buy up the entitlements and then sell them off at a profit.

Commodifying procedural entitlements also might have a disheartening side effect: skewing procedural reform. In some instances, commodification will make reform harder, because those who hold present entitlements have an incentive to oppose substantial reform. Say, for instance, a cheap and harmless truth serum threatens to make depositions conducted by lawyers obsolete. Holders of deposition entitlements would have a strong reason to oppose the switch to the serum. (Granted, there might be other reasons to oppose the use of truth serums, but we can already imagine the slick advertising campaigns that entitlement-holding hedge funds will run to exploit those reasons and scare people into opposing reform.) In other ways, commodification might spur useless reform, as people seeking to profit from new forms of entitlements that add little social value to judicial decision-making lobby to enact these forms.

Many of the concerns that the authors and I have identified are trained specifically on the third question of appropriate types of procedural flexibility and the authors’ answer of markets in procedure. The authors acknowledge that their proposal is “to say the least … implausible, and in any event well outside the realm of existing law.” In the rush to talk about markets in procedure that this paper will likely generate, it is important to bear in mind the broader frame of procedural flexibility within which this proposal arose. The authors’ second point — that the breadth of the parties’ right to negotiate procedural forms should depend on the nature of the case — is an insight whose significance does not hinge on the merits of establishing a secondary market in procedural entitlements.

The third question is valuable even if a market-based solution is impractical. Establishing markets in procedure is a logical endpoint of permitting parties to negotiate over the procedural forms to resolve disputes. If creating such markets seems a bridge too far, then perhaps the entire movement toward contract-based procedure is fundamentally flawed. If so, that realization is only a first step. The litigation system operates in a competitive environment. If potential litigants are voting with their feet by moving away from judicially provided procedure toward party-agreed procedure, the litigation system must reform or die.

Given the practical impediments, markets in procedure may not prove the way to reinvigorate the litigation system in the marketplace of dispute resolution. But out-of-the-box creativity, what Avraham, Hubbard, and Lipschits offer here, is needed if a solution is to be found.

The Empirical Truth About Qualified Immunity

Feb 23, 2018 Howard M. WassermanAdd a Comment

The critical scholarly narrative surrounding civil rights litigation is that the Supreme Court in the past decade has expanded the defense of qualified immunity, particularly through a series of per curiam reversals of qualified-immunity denials, with the Justices impatiently demanding that lower courts properly (and expansively) approach immunity. The effect has been to slam the courthouse doors on injured plaintiffs. Expansive qualified immunity insulates all but the “plainly incompetent” and those who knowingly violate the law. It shields officers against liability except for the rare case in which the officer violated a constitutional right that was “clearly established” by binding precedent finding a constitutional violation on factually similar conduct in factually similar circumstances, or the rarer case in which the violation was so obvious in light of general constitutional principles (such as tying a prisoner to a hitching post in the sun for seven hours). And the Court moved the doctrine in this direction for unabashed policy reasons—to insulate law-enforcement and other public officials from the cost, burden, distraction, and expense of litigation, discovery, and trial, by raising the bar for liability and requiring resolution of immunity early in litigation.

In How Qualified Immunity Fails, Joanna Schwartz’s empirical study shows both the critical narrative and the Court’s purported goals to be empirically unsupportable.

Schwartz reviewed dockets for cases brought by civilians alleging constitutional violations by state and local law-enforcement employees and agencies. The study examined cases filed in 2011 and 2012 in five federal districts in five circuits (Southern District of Texas, Middle District of Florida, Northern District of Ohio, Eastern District of Pennsylvania, and Northern District of California). The study yielded 1,183 cases; qualified immunity could be raised as a defense in 979 of them because the case included claims against an individual officer for money damages. In all but three cases, qualified immunity was raised only on summary judgment, only on a motion to dismiss on the pleadings, or at both stages (it was raised only at trial or appeal in the other cases). Schwartz identified 440 motions (to dismiss on the pleadings or summary judgment) in those cases; qualified immunity was denied in the plurality (139) and granted in full or in part in a smaller number (79). In fact, courts were more likely to grant dismissal or summary judgment in whole or in part on other grounds or without mentioning qualified immunity. Moreover, a grant of qualified immunity need not end the litigation or that officer’s role in the litigation; other claims may remain in the case for which qualified immunity is unavailable (claims for non-monetary relief, claims against government entities, and claims under state law). Schwartz identified only 38 cases in which qualified immunity ended the litigation—27 on summary judgment, 7 on pleadings dismissal, and 4 on appeal.

These findings suggest that qualified immunity does not slam the courthouse doors as critics fear. To the extent civil rights and constitutional claims fail, they fail for reasons other than qualified immunity. The plaintiff failed to plead facts showing a plausible claim for a constitutional violation. Or he failed to produce evidence showing a genuine dispute of material fact. For Bivens claims against federal officials (which were not included in this study, but are the subject of an ongoing study by a group of scholars), the hurdle is the narrowing of the Bivens cause of action itself. Or claims fail because the scope of constitutional rights and the standards for establishing a violation have narrowed, leaving law-enforcement officials more constitutional leeway to act.

At the same time, Schwartz’s findings show that qualified immunity does not achieve its policy goals of protecting government officials from the cost, burden, expense, and distraction of discovery and litigation. A finding of qualified immunity does not get the individual officer out of litigation or discovery and its associated burdens. Claims may remain seeking equitable relief for the constitutional violation or seeking remedies under state law. Claims may remain against the municipality; although the officer no longer remains a party, he may remain part of the litigation and the discovery process as a witness and as the person whose conduct is the linchpin for the entity’s liability. And the grant of qualified immunity likely had to await summary judgment, which must await some discovery, meaning the officer had to endure some of the burdens, costs, and distractions that immunity is designed to limit.

In establishing the modern approach to qualified immunity, the Supreme Court acknowledged that the doctrinal balance might be reconsidered if the realities of constitutional litigation undermine the Court’s assumptions about the purposes and benefits of immunity. Schwartz insists that her findings have undermined those assumptions, revealing the doctrine as “an exercise in futility.” The answer, however, is not to make qualified immunity stronger. She doubts the doctrine could be stronger than it is, certainly in the Supreme Court. And even expansive qualified immunity is not tailored to its intended role, because immunity cannot be adequately resolved before discovery and summary judgment and because plaintiffs can avoid the defense by including claims to which immunity does not apply.

Instead, Schwartz’s empirical demonstration of the emptiness of qualified immunity suggests the Court should eliminate or redefine the defense. It could rely on other mechanisms (summary judgment, motions to dismiss, and the limits of substantive constitutional rights) to protect officers against non-meritorious claims. It could reinstate the subjective prong to qualified immunity, denying immunity to officers who act in knowing and subjective bad faith or with knowledge of the unconstitutionality of their behavior. It could eliminate immediate appeal of immunity denials under the collateral order doctrine. At a minimum, it could move the “clearly established” prong away from case law and the demand for on-point precedent to a focus on a broader sense of whether the officer’s conduct was “clearly unconstitutional,” whether based on case law or general constitutional principles.

This is the second article in which Schwartz has used empirical study to show that the Court’s assumptions around qualified immunity are flawed. She previously showed that qualified immunity fails to serve an alternative purpose of avoiding over-deterring law enforcement for fear of personal liability; her study of indemnification agreements revealed that officers pay even a small portion of any judgment in only a miniscule percentage of cases. With this second paper, Schwartz has completed the task of showing that the Emperor of Qualified Immunity has no clothes.

Redesigning the Cert Process

Feb 9, 2018 Marin K. LevyAdd a Comment

Every year thousands of parties ask the Supreme Court to hear their cases. Every year the Court disappoints the vast majority of them, selecting only about one percent of cert petitions. And every year scholars decry the Court’s choices—arguing that the Justices have taken too few cases and not even the most important ones at that. One can imagine the Justices turning to each other at conference and lamenting, “Everyone’s a critic!” But have we been raising the right sorts of criticisms? The Lottery Docket, by Daniel Epps and William Ortman, suggests not so much.

In this thoughtful piece, Epps and Ortman challenge both convention and conventional wisdom around case selection at the Court. The Justices fail to take the right cases not because (or not just because) they incorrectly identify which ones are important, as so much scholarship has stated, but precisely because they miss ones that are unimportant. By selecting and then deciding cases based on such factors as whether a given issue has resulted in a circuit split and attracted sufficient attention from amici, the Court has a distorted view of the legal landscape and thus how its decisions might affect parties and the courts below. Epps and Ortman’s elegant solution to the problem is to supplement the Court’s current docket with some randomly drawn cases from the courts of appeals—a “lottery docket.”

Epps and Ortman begin with a brief history of the Supreme Court’s agenda, gently reminding readers that for the first hundred years of its life, the Court had no control over the cases it would hear. Beginning in the late 1800s, Congress afforded the Court some discretionary review (largely in response to the Court’s substantial caseload). Congress continued to expand the Court’s discretionary review over the next century, culminating in the 1988 Judiciary Act, which essentially did away with the Court’s mandatory appellate jurisdiction. As a result of these various acts, the Justices are now left to their own devices to select which appeals to review out of the 7000-8000 cases that seek cert every year.

Epps and Ortman next turn to how the Justices go about selecting cases to review. There are numerous factors that go into deciding what to decide, as H.W. Perry’s seminal work on the subject demonstrated. Epps and Ortman focus on the factor that seems predominant these days: whether the question raised by the appeal has caused a circuit split. Having this drive the selection process creates a couple critical problems. The first is informational—the Justices end up with a distorted sense of how the law functions “on the ground” and therefore how its decisions might affect litigants and the lower courts deciding their cases. The second implicates accountability—lower-court judges know when deciding run-of-the-mill cases that they will almost certainly be immune from review (and may even take steps when writing their opinions to ensure such immunity).

Having convincingly identified the problems with the current cert process, Epps and Ortman propose a neat solution to it: the creation of a lottery docket. This would supplement the certiorari docket by giving the Court appellate jurisdiction over a small number of cases—possibly twenty to forty—selected at random from the final decisions of the circuit courts. The Lottery Docket then devotes some space to how the proposal could be implemented. Questions include whether all cases from the courts of appeals would be automatically entered into the pool or if there would be an opt-in mechanism, and whether some appeals would be weighted or all would receive an equal chance at selection. Whatever the particulars, the thrust is the same—the Court would be exposed to a much wider swath of cases than it currently sees, thus helping to mitigate the informational and accountability problems identified above.

Stepping back, The Lottery Docket is a terrific new piece of scholarship. It persuasively identifies a set of problems afflicting the Court—and the federal judiciary as a whole—and offers a thoughtful response to those pathologies. One can raise questions about the proposal—for example, will having the Court take even forty standard cases really improve accountability given that thousands of appeals will still retain the last word (a point that appellate judges will know)? But part of what makes The Lottery Docket a pleasure to engage with is that Epps and Ortman have anticipated most of these questions and have fair responses at the ready.

Stepping back once more, it is exciting to see scholarship in the growing field of judicial administration—what we might want to call the “new legal process.” In the legal academy, much of our scholarship and teaching centers around particular substantive areas of law—constitutional law, civil procedure, administrative law, and the like. Yet it remains critical to study our legal institutions and the actors who populate them. As legal scholars, we all may be critics in our own way, but it is important to apply some of our critical thinking to understanding, and improving, our court system. The Lottery Docket is a great example of exciting new scholarship in this field and we should look forward to what its authors, and other students of the new legal process school, will offer in the future.