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Preclusion Law as a Model for National Injunctions

Alan M. Trammell, Demystifying Nationwide Injunctions (Nov. 26, 2018), available at SSRN.

One of the hottest topics on the current legal landscape is the propriety of national injunctions. Federal district court judges are increasingly enjoining the federal government from enforcing statutes, regulations or policies nationwide—fashioning remedies far beyond the parties and the court’s geographic purview.  While this practice initially took hold in the 1960s, it escalated during the Obama Administration and has intensified under the Trump Administration.

For example, a district judge in Texas barred enforcement of Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)—applying the bar not only to the twenty-six states who complained, but to the entire nation.  Similarly, a district judge in Hawaii barred enforcement of Trump’s travel ban, which excluded travelers from seven countries—most predominantly Muslim—on alleged religious discrimination grounds; the court forbid the Administration from applying the ban not only to the parties in the case, but to non-parties across the country.

This has led many people to ask themselves, “Hey, wait a minute!  Can they do that?”  They are not alone.  The recent uptick in judgments rebuking executive action and issuing sweeping reforms at the hand of singular judges has invigorated a robust debate over the propriety of this practice in particular and the power of federal judges in general.  Just recently, former Attorney General Jeff Sessions expressed skepticism over the legitimacy of national injunctions, joining Justice Clarence Thomas’s assessment of them, in Trump v. Hawaii, as “legally and historically dubious.” A number of scholars have expressed similar doubt and concerns.

But a burgeoning view among academics is challenging this narrative.  The latest entry is Alan Trammell’s Demystifying Nationwide Injunctions, which takes on the challenge of addressing the constitutional and structural arguments made by national injunction opponents, persuasively explaining how national injunctions do not violate Due Process, contravene judicial hierarchy, or eclipse the “judicial power” of Article III courts.

First, Trammell contends that core Due Process concerns are not threatened by national injunctions.  For example, one such concern is that a non-party should not be bound by an adverse judgment because that person has not had his or her proverbial “day in court.”  However, this concern is inapt in the case of national injunctions against the enforcement of an unconstitutional law, where a non-party benefits from the universal ruling. Similarly, preclusion law used to require “mutuality”— only parties to a prior lawsuit could get the preclusive effect of a beneficial ruling in a subsequent lawsuit.  Courts, however, have relaxed this requirement, allowing non-parties to benefit as well because the defendant had its “full and fair” opportunity to defend itself in the initial action.

Trammell takes the same position even where non-parties do not actually want the national injunction, but are bound nonetheless.  This is not a Due Process violation either, given the circumscribed right an individual has to challenge public rights.  Like the Rule 23(b)(2) context, which provides no individual notice and “opt-out” rights for a class seeking primarily equitable relief (including injunctions), the national injunction fairly binds non-parties in cases involving public rights and indivisible relief.

Second, Trammell argues that national injunctions are not foreclosed on the grounds that the remedy crosses vertical and horizontal boundaries that usually cabin the effect of district court decisions.  On the vertical axis, a district judge who issues a national injunction may bind a higher court, in contravention of judicial hierarchy.  On the horizontal axis, that same judge may bind its sister district courts and even those outside the judicial circuit, in contravention of normal geographical limits.

But preclusion law allows such exceptions. And a court’s remedial power in one case is distinct from supervisory authority and geographic jurisdiction. Trammell correctly recognizes the risk of inconsistent rulings that could result from national injunctions issued by different district courts, but concludes that is a prudential problem for comity to solve.  To the extent that one believes the courts are likely to respect comity and self-regulate accordingly, Trammell’s position is satisfying, even as others bristle at the indeterminacy of such a laissez-faire approach.

Third, Trammell pushes back on the notion that national injunctions are beyond the scope of Article III.  National injunctions meet the case-or-controversy requirement because they are brought by plaintiffs with proper standing–a concrete and particularized injury caused by the defendant that is legally redressable.  Lest you think Trammell’s arguments are motivated by the current political climate, he uses the Texas district court’s national injunction against Obama’s DAPA to illustrate how the state of Texas had standing.  While one may disagree with the ultimate ruling on the merits of the case, the issue of Article III standing seems clear.

Finally, Trammell makes a broader point about the push back against national injunctions.  The criticism of district judges’ expansive remedial reach reflects a larger and familiar debate about the proper role of judges.  Are they really just umpires calling balls and strikes?  Trammell situates the propriety of the national injunctions issue in the debate over two models of adjudication: dispute resolution and law declaration.  While this tension may ring true for Supreme Court jurisprudence, the same cannot be said for district courts, whose mandate as trial courts is far different.

After this brush-clearing (establishing the court’s power to issue national injunctions), Trammell offers a compelling context in which to rest his position—the parallel development of preclusion law.  Trammell analogizes the evolution of the national injunction to the evolution of preclusion, illustrating how the underlying premises of the latter support the former.  This insight, made concurrently by Zachary D. Clopton in National Injunctions and Preclusion, __ Mich. L. Rev. __ (forthcoming 2019), situates national injunctions in a wider frame that helps the reader understand why a singular judge issuing relief far beyond its participants or geography isn’t so fantastical after all.

Trammell relies on the principles underlying preclusion for determining normatively when a national injunction is appropriate.  As a starting point, Trammel analogizes nonmutual offensive issue preclusion to a national injunction, noting that in both instances an individual gets the benefit of an adverse judgment against a government defendant in a lawsuit in which he was not a party.  Because the defendant had a full and fair opportunity to be heard, due process has been met.

He identifies a number of problems with offensive nonmutual collateral estoppel: it encourages a “wait and see” approach by individual plaintiffs bringing litigation seriatim; exacerbates inconsistent rulings; and promotes preclusive asymmetry.  But these pitfalls have not justified a complete bar to such preclusion, so neither should they bar national injunctions—which can pose similar concerns. To the contrary, preclusion law models the circumstances under which a court should refrain from issuing a national injunction.  Drawing on the majority rule permitting offensive non-mutual issue preclusion so long as there is not evidence of inherent unfairness, Trammell endorses the existence of national injunctions.

This endorsement, however, is tempered by the Supreme Court’s holding in United States v. Mendoza, where the Court held that a private party could not use non-mutual issue preclusion against the government.   But Trammell rejects Mendoza as a categorical ban on such preclusion, arguing that the Court’s conclusion is cabined to the particular case and is merely a guidepost that identifies circumstances that should militate against preclusion.

Trammell then pivots to a different doctrinal and theoretical hook for discerning when national injunctions affirmatively are appropriate: non-acquiescence.  This practice involves the government (usually an administrative agency) prospectively refusing to follow a judicial interpretation of the law.  This practice is generally accepted when limited to a particular circuit among many but frowned upon when done within a circuit in flagrant disregard of its precedent.  Non-acquiescence, he argues, is justifiable when the law is unsettled and the government genuinely seeks to promote its position.  But national injunctions are justifiable when the government flagrantly rebukes settled law, thereby demonstrating bad faith.

Trammell ends his article by concluding that although courts have the power to issue national injunctions and can justify them prudentially for many of the same reasons that justify preclusion, courts should only issue them under certain limited circumstances.  Borrowing from preclusion law, Trammell proposes a standard for when national injunctions are appropriate, with a set of limiting principles as a power check. There is a presumption against national injunctions as the go-to response, giving the government an opportunity to make a course correction and courts a chance to develop law.  But a national injunction is proper when plaintiffs can demonstrate the government is acting in bad faith, as evidenced by rebuking settled law or failing to sincerely vindicate its position in the courts; this exception vindicates equality and promotes rule-of-law norms.

Trammell’s proposal offers much food for thought.  The default rule puts Trammell squarely in the camp of those who reject an outright ban on national injunctions but are nonetheless concerned about prudential problems they pose and the frequency with which courts are ordering them.  He uses the policy considerations raised by preclusion law and Mendoza as a proxy for determining when law is settled. This is inexact, but addresses some of the most common complaints about national injunctions—inconsistent rulings, “one-and-done” rulings by a singular judge, forum shopping, lack of law percolation, and asymmetric preclusion.  His proposal covers much ground.

With “settled law” being so central, much rides on how it is defined.  Trammell emphasizes flexibility, arguing that the law need only be “settled enough,” with the burden on the government to defend its decision to depart.  The national injunction against the first travel ban offers a perfect example–with every court to consider the matter, and eventually the White House, all agreeing on the illegality of certain provisions, the law was sufficiently settled to warrant a national injunction.

Similarly, nothing says “settled” more than a definitive ruling by the Supreme Court.  A perfect example of this was Obergefell v. Hodges, holding that same-sex couples have a fundamental right to marry in all states.  When Kim Davis, a local Kentucky clerk, refused to issue marriage licenses to same-sex couples post-Obergefell, this provides “the quintessential scenario of when a broad injunction is most appropriate.” The alternative is to require every same-sex couple seeking to marry in the United States to sue to enforce their Constitutional rights under Obergefell whenever they face a clerk who defies the rule of law.  This not only encourages lawlessness by government officials, but “essentially leads to government by litigation”—an untenable, impractical and immoral outcome “antithetical to the entire governance structure.”

Although Trammell’s proposal offers a way to promote national injunctions while erecting guardrails that cabin their proliferation, it raises some questions and concerns.  For example Trammell suggests a “rule of three” for when law is settled—conditioning a national injunction on three consistent adverse lower court rulings.  While not new, this is arbitrary and malleable.  Moreover, there is no reason that the plaintiff should bear the burden of proving settled law or for making bad faith the primary justification for national injunctions. Other policies may justify such expansive relief, including the need to address national crises, promote efficiency, prevent irreparable harm, check executive abuse of power, provide complete relief, and account for access to justice problems.

There are no easy answers. But Trammell has made an important contribution to the debate with an analogy to preclusion law thqt is groundbreaking and insightful.

Cite as: Suzette M. Malveaux, Preclusion Law as a Model for National Injunctions, JOTWELL (December 5, 2018) (reviewing Alan M. Trammell, Demystifying Nationwide Injunctions (Nov. 26, 2018), available at SSRN),

A Decade of Procedural Despair: Denying Access to Justice and Closing the Courthouse Doors

Michael Vitiello, Animating Civil Procedure (2017).

For civil procedure teachers seeking to accompany their casebook with an insightful account of procedural justice, Michael Vitiello’s Animating Civil Procedure provides an excellent complement to case-centric courses. Among its many virtues, Vitiello’s book weaves a compelling procedural-justice argument around the leading procedure cases all first-year students encounter in their introduction to the American legal system.

Vitiello’s main thesis details how the Supreme Court’s procedural jurisprudence – especially in the last decade—effectively denies plaintiffs’ access to justice and represents a closing of the courthouse doors. While these themes are manifestly familiar to the professoriate and comprise the dominant narrative among commentators, the impact of procedural law may not be so apparent to new law students. By focusing on the compelling importance of procedure in shaping substantive justice, Vitiello’s book provides a useful resource to bridge a novice’s gap in knowledge and understanding.

At the outset, Vitiello rightly frames his book with the observation dear to the heart of all civil procedure teachers: that procedure is as important, if not more so, than the substantive law that occupies so much of the first-year curriculum. He observes how—in contrast to headline-grabbing substantive issues such as gun control, same-sex marriage, and campaign financing—the Court’s procedural decisions go largely unnoticed and unheralded. Vitiello illustrates the point with the famous story of how The New York Times and other newspapers failed to report the Court’s 1938 decision in Erie R.R. v. Tompkins, completely missing the significance of that decision.

Having established the central case for the importance of procedure, Vitiello’s book segues into separate chapters advancing his argument that the Court’s recent procedure jurisprudence has largely been anti-plaintiff and pro-corporate defendant. He focuses on seven areas of procedural law to illustrate this thesis: personal jurisdiction, pleading, discovery, summary judgment, transfer of venue, class actions, and arbitration. In reviewing the Court’s leading decisions, he analyzes the holdings in the context of the Court’s liberal-conservative ideological divide.

Each chapter presents a veritable hit-parade of the Court’s most controversial procedure decisions during the past decade. In discussing the Court’s increasingly constrictive views on personal jurisdiction, he focuses on the infamous trilogy of courthouse-closing cases: Goodyear Dunlap Tires Operations, S.A. v. Brown, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. As all procedure teachers appreciate, nothing engages students more than the saga of Mr. Nicastro of the severed four fingers, with the Court telling him he has nowhere to sue. Vitiello employs these cases to point out the increasing inability of injured plaintiffs to enter the courthouse to hold bad-actor corporate defendants accountable for wrongdoing.

Vitiello’s chronicle of the Court’s personal jurisdiction jurisprudence sets the tone for ensuing chapters, perhaps none so scathing as that on pleading under the Federal Rules. He first sets out the historical basis for nineteenth-century pleading reforms as the precursor of modern federal notice pleading, providing a succinct summary of the context for understanding the philosophy of modern pleading that students may not otherwise receive. The pleading backstory is a procedural tease, coming undone in Bell Atlantic Co. v. Twombly and Ashcroft v. Iqbal. In truth, attacking the Court’s Twombly/Iqbal decisions is picking-off low-hanging fruit, although they are the archetypes of the Court’s anti-plaintiff, pro-corporate bias.

The twin themes of denying access to justice and closing the courthouse doors frame the discussion in Vitiello’s remaining chapters on summary judgment, transfer and venue, and class action litigation. Similar to his jurisdiction and pleading chapters, Vitiello’s book ranges over a collection of prominent, challenging, and dubious Court decisions, including Scott v. Harris(on summary judgment) and Atlantic Marine Construction Company v. U.S. District Court(on transfer of venue). Vitello’s discussion provides students with a thoughtful analysis of the impact of these somewhat arcane procedural mechanisms.

The Court’s recent class action jurisprudence comes in for especial notoriety, focusing predictably on the Court’s decision in Wal-Mart Stores, Inc. v. Dukes, which narrowed the interpretation of the Rule 23(a) commonality requirement. And, not to be outdone by the anti-class action animus embedded in Dukes, Vitiello singles out the Court’s class action waiver decisions in AT & T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant as further evidence of the Court’s pro-corporate bias in upholding arbitration clauses with class action waivers. Vitiello acknowledges that the Court’s class action jurisprudence has been a mixed bag, leaving open the ultimate conclusion to be drawn from this universe of cases.

Finally, Vitiello notes that procedural justice derives not only from the Court’s decisions, but from rulemaking initiatives by the Advisory Committee on Civil Rules. He focuses on the Committee’s recent excursions into amending the discovery rules, which he argues deny access to justice for plaintiffs with fewer resources. This chapter provides students with useful insight into other sources of procedural justice and offers a good springboard to discuss the philosophy of transsubstantive and neutral rulemaking.

Vitiello’s Animating Civil Procedureis an excellent companion to a first-year casebook. It is easy to read, well-written, and not overly long. Not only does it discuss the most recent leading procedure cases, but it challenges students to think about the broader implications of those cases. Although the book leaves scant room for disagreement with his conclusions, Vitiello should be commended for demonstrating the overarching importance of procedure to a system of substantive justice.

Cite as: Linda S. Mullenix, A Decade of Procedural Despair: Denying Access to Justice and Closing the Courthouse Doors, JOTWELL (November 23, 2018) (reviewing Michael Vitiello, Animating Civil Procedure (2017)),

Construing Precedent

Richard Re, Beyond the Marks Rule, 132 Harv. L. Rev. __ (forthcoming 2019), available at SSRN.

What is the nature of precedent? How is it made and how can it eventually be unmade? If anyone knows, it is Richard Re at UCLA School of Law. Re has been doing the academy and the judiciary a service in recent years by writing several articles and a scholarly amicus brief on the foundational question of how certain opinions come to bind others. Beyond the Marks Rule is his latest offering in this rich area, and it does not disappoint.

Beyond Marks begins with what one might call the “less-than-five problem.” Generally, the Supreme Court creates binding precedent when a majority of the Justices supports a single rule of decision. Under the “majority rule,” if five Justices sign on to Rule A and four Justices sign on to Rule B, Rule A becomes the holding of the Court and binds the lower courts thereafter. But occasionally the Supreme Court does not merely split but fractures, leaving us in a world of, say, 4-1-4 (in which five Justices agree on an outcome, but only four agree on a rule explaining the outcome and one relies on alternative reasoning). What to do in such a situation? One could imagine concluding that an opinion without a majority is an opinion without precedential effect. But at the moment we are bound to conclude otherwise, thanks to Marks v. United States.

Marks tells us that “when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices,” then “‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . .’” (or, as I tell my students, if four Justices want to order vegetarian fare for dinner, and a lone Justice will only have cheese pizza, then cheese pizza it is for everyone). Though the rule may have some initial intuitive appeal, Re convincingly argues that its adoption was not well thought out then and is beyond problematic today.

The costs of the Marks rule are several. First, the rule can lead to troubling results. Consider Freeman v. United States, a recent federal sentencing case, in which the Court divided 4-1-4. The majority of lower courts to subsequently apply Marks to Freeman decided that Justice Sotomayor’s concurrence—the lone 1—should control. And yet the other Justices had squarely rejected Sotomayor’s position, calling it “erroneous” and “arbitrary.” As Re points out, “the Court’s least popular view became law.” Even where the Justices do not directly criticize what will become the controlling opinion, the fact remains that a majority of the Court chose notto endorse that opinion. In this way, Marks makes precedent out of minority views.

Second, there can be a significant lack of clarity—and therefore lack of efficiency—in applying the Marks rule. At the level of the rule itself, it is not pellucidly clear how lower courts should understand “that positon taken by those Members who concurred in the judgments on the narrowest grounds.” It could mean the “logical subset” approach, which considers an opinion from a fractured Court binding only if it “necessarily approves all the results reached under another concurrence in the judgment” (as in the culinary example above). It could mean that lower courts should look to the “median opinion”—the concurring opinion that represents the views of the median Justice. Or it could mean the “all opinions” approach, which considers how a given case would be resolved under the Court’s various opinions (including dissents) and follows whatever route would have gained the support of a majority. Re reveals the flaws in each of these methods and underscores how challenging it is to apply what might at first blush seem to be a straightforward rule.

Given the varied possibilities for understanding Marks, it is not surprising that there is confusion over what precisely counts as precedent in many individual cases. Returning to Freeman, most lower courts to apply Marks to the case concluded that the Sotomayor concurrence controlled. But the D.C. and Ninth Circuits concluded that Freeman failed to create any precedent at all (aside from the result). In short, these fractured decisions impose significant interpretive costs.

Re then demonstrates those costs with a comprehensive empirical study of how the Supreme Court, the federal courts of appeals, and even state courts have applied Marks. The findings show that the rule is dysfunctional in application.  With respect to the federal courts of appeals, for example, Re finds that they “only sometimes reach convergent results,” and that, often, “repeated Marks analysis generates lasting disagreement.”

Re does not stop there—he concludes with an elegant solution to the problem.  Rather than try to forge precedent when the Court has fractured, Re argues that only the majority rule should rule—a decision provides a binding rule of decision only if at least five Justices support it. The Justices should continue to feel free to form compromise majorities, following the logic of Screws v. United States (which maintains that a Justice may decide to vote for a particular rule precisely so as to create a majority precedent). But they must create that majority.

And Re does not even stop there. Tying Marks to his earlier work on precedent, he considers how a “Screws rule” could come about. It could come from the Court, either by overruling Marks in favor of a majority-rule rule or by reducing the number of fractured opinions over time. Alternatively, it could come from lower courts narrowly construing Marks, thereby incentivizing a would-be lone Justice, no longer able to create a binding rule herself, to find an opinion to join.  Whatever the case, with Beyond the Marks Rule, Re has made a substantial contribution to the growing field of Judicial Administration/Judicial Process. And there can be no fractured opinion here—judges and academics alike should pay close attention to Re’s invaluable scholarship.

Cite as: Marin K. Levy, Construing Precedent, JOTWELL (November 5, 2018) (reviewing Richard Re, Beyond the Marks Rule, 132 Harv. L. Rev. __ (forthcoming 2019), available at SSRN),

Go Big or Go Home: The Debate Over National Injunctions

Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. __ (forthcoming 2018), available at SSRN.

Can a single federal district court judge issue an injunction binding in every state? And if so, when should they do so? That question has been on the minds of many watching the whiplash-inducing orders from judges these last few years. In 2015, a district judge in Texas issued an injunction barring the federal government from enforcing an executive order granting temporary reprieve and work authority to immigrant parents of persons lawfully in the United States (either citizens or permanent residents). The plaintiff was the State of Texas – the only state found to have standing – but the injunction encompassed the entirety of the United States. In 2016, a district judge in Texas issued an injunction barring the federal government from enforcing a Department of Education policy requiring that public schools provide facilities (such as restrooms) that match their students’ gender identity. The plaintiffs were sixteen states that did not wish to comply with the policy, but the injunction encompassed the entirety of the United States. In case you think that everything is bigger in Texas, in 2017, a federal district judge in Illinois issued an injunction barring the federal government from withholding federal funding to “sanctuary jurisdictions,” states or local governments that refused to cooperate with immigration enforcement. And in 2017 several district court judges enjoined the federal government from enforcing various versions of an executive order barring nationals from several predominantly Muslim countries from entering the United States.

One of the coolest things about procedure is how procedural questions destabilize our political preferences. As a matter of principle, if you agree that judges have the power to issue one kind of national injunction, then you must agree that they have the power to issue the other. As a political matter, you might like the injunctions against the Obama administration and not those against the Trump administration, or vice versa. The controversy over this exercise of judicial power was, until recently, mostly academic (in the sense that mostly academics cared about it), but a bill recently was introduced in Congress barring federal judges from issuing “an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority” except where the case has been certified as a national class action. The impetus for the bill is probably political (its sponsor is Republican Representative Goodlatte), but that does not answer the question: Is this a good bill? Should we limit the reach of a federal district court to the parties before it or in some other way that would bar these types of injunctions?

High-profile and well-reasoned articles published last year by Samuel Bray, Michael Morley, and a more recent piece by Howard Wasserman argue that such injunctions overstep the bounds of what a federal court can and should do. Amanda Frost has now written an excellent defense of nationwide injunctions in response. Importantly, Frost situates the issue in larger debates over the role of the federal courts. Her claim is that your priors about what courts are for will determine to a significant extent your reaction to a national injunction. If the purpose of the courts is primarily dispute resolution, an injunction should be limited to the parties. If a substantial purpose of the courts is law declaration, a national injunction could be an important tool in the court’s toolbox, especially in the face of a recalcitrant governmental defendant. The possibility of a recalcitrant government defendant is especially important because, as Frost points out, national injunctions have surfaced in the years when the executive has exercised more unilateral power than any time in recent memory. Indeed, it is impossible to understand the phenomenon of national injunctions without understanding the recent relationship among the courts, Congress, and the executive branch. This is the powerful and important contribution of Frost’s article: it forces us to confront assumptions about both the structure of government and the court’s place within that structure.

Frost’s diagnosis of why we are here is the most valuable contribution of her piece, but her constitutional arguments are important, as well. First, Frost responds to the argument that the judicial equity power historically was limited to the parties before the court and that this limit should remain today. To the extent you think the judicial power today should be defined by its parameters during the Founding Era, Frost points to the “bill of peace,” which applied to non-parties. Other historical work supports her. Although non-party preclusion was rare, it was not unknown in the early common law. (If you are a proceduralist reading this and have not read Robert Bone’s article, Rethinking the “Day in Court” Ideal and Nonparty Preclusion, stop and read that instead.) Indeed, the very nature of property rights is that they are in rem – “they serve not only to bind successors in interest but the whole world.” Contrary evidence is always the problem with common law arguments steeped in history, especially procedural history; such arguments are rarely (if ever) definitive. The famous Talmudic saying applies to instrumental legal history: turn it and turn it again, for all is in it.

Second, Frost responds to the view that standing doctrine requires that the scope of the federal court’s power to order injunctions be limited to the parties, because the parties frame the “case or controversy” under Article III. Frost’s most powerful argument is that just as courts can strike down statutes as to all, they can strike down executive orders. Frost also points out that the equitable relief necessary to provide complete relief to the plaintiff must include other parties in many cases, such as a desegregation order requiring the defendant to allow all nonwhite students to attend a school. It may be that the problem raised by the plaintiff is so intertwined with others similarly situated that relief in the plaintiff’s case requires relief to others. The argument against allowing such intertwined interests to be heard reminds me of Lon Fuller’s objection to courts deciding “polycentric” disputes and brings us back to the basic point that one’s assumptions about what courts are for is at the heart of this question.  That debate has been going on since the founding of the republic. To put it in terms of twentieth century scholarship, are you more inclined to agree with Fuller or Chayes?

Frost also responds to the argument that national injunctions should be available only by certifying, when appropriate, a nationwide class under Rule 23(b)(2). I imagine that the underlying appeal of this argument is that if the injunction is subject to Rule 23’s requirements (especially that the named plaintiff adequately represent the entire class), then we can rely on the rule to cabin the exercise of judicial power and this feels less overreaching. I use the word “feels” for a reason. As a practical matter the court would end up in the same place. Frost points out that if an injunction is permitted pursuant to 23(b)(2) then it must be constitutional as well; if a court can do something through a rule (which the courts themselves promulgate), why would it be unconstitutional to do this same thing in the absence of the rule? It cannot be that the rule dictates what Article III allows. The best argument for insisting on certification of a Rule 23(b)(2) class action is that the rule makes absent class members into parties, but I am not convinced for three reasons. First, the “representative litigation” concept that provides the constitutional foundation for class actions is a legal fiction in which the adequacy of the representative is deemed to be sufficient, as a constitutional matter, to bind all others in the class. Legal fictions should be avoided whenever possible, and courts should be direct about what they are doing. The legal fiction of binding by representation ought not be sufficient if the exercise of judicial power is illegitimate. (The ink spilled on the principal-agent problem in class actions is evidence of the discomfort with this fiction.) Second, we have a history of non-party preclusion that supports a broader conception of who can be bound by a lawsuit. Third, absent class members aren’t parties for many purposes, so one needs a policy reason to say they are parties for this purpose.

This brings us to the real issue: policy. Should one judge, potentially an outlier judge with radical ideas, make policy for the nation? If so, why not make them go through the process of certifying a national class action and ascertaining that there are no conflicts that require rethinking the idea? Frost doesn’t seem to be against requiring judges to certify injunctive classes in the run of cases, but argues that injunctive class actions are sometimes very difficult to certify, often requiring hearings that are tantamount to trials. Indeed, an assault on injunctive classes may be coming, and those who want to be able to bind the elected branches should be worried about allowing the class action device to tie judicial hands in the face of extreme government wrongdoing. That said, it is not always hard to certify injunctive classes. Classes can be certified provisionally (in fact, all classes are to some extent certified provisionally until a final judgment is entered), and more courts might use the power to certify a provisional class in order to issue a national injunction in a timely manner if that hurdle were required. For example, in Mrs. L v. Immigration and Customs Enforcement, the court certified a 23(b)(2) class in three-and-a-half months — plaintiffs filed their class certification motion on March 9, 2018, and the judge certified the class on June 26 — very fast for a class certification motion. But we cannot expect every class to proceed with such haste. This was a special case, involving very young children being separated from their parents and suffering likely permanent, debilitating psychological and potentially physical injuries. . . . Upon reflection, three-and-a-half months was much too slow.

The issue, then, is whena national injunction might be appropriate. Frost is closer to her critics than I anticipated because she does not seem to think national injunctions should be often used. She explains the risks of forum shopping and conflicting injunctions, concerns about infringing on the rights of non-parties, and the need to let the law percolate. And she urges courts to be sensitive to these risks as well as the costs and benefits in the specific fact situation in which the need for an injunction arises. In the end, she seems more inclined to believe in the integrity and capacity of judges than her critics. Reasonable minds can differ on the question of judicial competence to make these difficult decisions in a high-stakes environment and on the question of whether the costs outweigh the benefits. Before making up your mind, I highly recommend reading Frost’s article both for its summary of the debate and for its compelling arguments.

Cite as: Alexandra D. Lahav, Go Big or Go Home: The Debate Over National Injunctions, JOTWELL (October 23, 2018) (reviewing Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. __ (forthcoming 2018), available at SSRN),

Severability, Separation of Powers, and Agency Design

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cite as: Kevin C. Walsh, Severability, Separation of Powers, and Agency Design, JOTWELL (October 9, 2018) (reviewing Kristin E. Hickman, Symbolism and Separation of Powers in Agency Design, 93 Notre Dame L. Rev. 1475 (2017)),

Lies, Dating Lies, and Small Claims Court

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

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

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

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

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

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

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

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

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

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

Cite as: Robin J. Effron, Lies, Dating Lies, and Small Claims Court, JOTWELL (September 25, 2018) (reviewing Irina Manta, Tinder Lies, ___ Wake Forest L. Rev. ___ (forthcoming 2019), available at SSRN),

The Politically Powerful and Judicial Review

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

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

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

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

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

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

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

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

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

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

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

Cite as: Fred O. Smith, Jr., The Politically Powerful and Judicial Review, JOTWELL (September 7, 2018) (reviewing Aaron Tang, Rethinking Political Power in Judicial Review, __ Cal. L. Rev. __, (forthcoming 2019), available at SSRN),

Why Military Justice Doesn’t Get Enough Academic Attention

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

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

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

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

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

Cite as: Steve Vladeck, Why Military Justice Doesn’t Get Enough Academic Attention, JOTWELL (August 14, 2018) (reviewing Rodrigo M. Caruço, In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71 (2016)),

A Step Toward a Proper Understanding of Constitutional Litigation

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

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

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

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

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

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

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

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

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

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

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

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

Cite as: Howard M. Wasserman, A Step Toward a Proper Understanding of Constitutional Litigation, JOTWELL (July 12, 2018) (reviewing Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. __ (forthcoming 2018), available at SSRN),

Hail to the Chief Justice

Jeffrey Rosen, William Howard Taft (2018).

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

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

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

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

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

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

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

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

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

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

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

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

Cite as: Jordan Singer, Hail to the Chief Justice, JOTWELL (June 15, 2018) (reviewing Jeffrey Rosen, William Howard Taft (2018)),