Bringing in the Jury

From the milk carton graphic on the cover to the blurb by Dallas Mavericks owner Mark Cuban, Suja Thomas’s The Missing American Jury is not your typical, staid academic monograph. Indeed, although neither the punchline nor the stridency will come as a surprise to those familiar with her prior work (including my personal favorite—Why Summary Judgment Is Unconstitutional, an article that spawned an entire symposium), the book is a far more powerful, elegant, and concise explication of her long-held view of the unfortunate (and inappropriate) demise of the criminal, civil, and grand juries in contemporary American litigation. More than that, it is also a call for a systemic restoration of the jury, one grounded in a proper appreciation of the structural constitutional role juries were meant to play vis-à-vis the legislative, executive, and even judicial branches of government.

There is simply no denying Thomas’s descriptive claim. At the Founding, juries decided all but the most minor criminal cases. But by 1962, jury trials accounted for only 8.2% of cases tried in federal court. And by 2013, that number had more than halved, dropping to 3.6%. The numbers in state courts are even more bleak—and, in most cases, come on top of the absence of grand juries. And in civil cases, as will surprise absolutely no one, juries decided only 5.5% of federal cases in 1962—and 0.8% by 2013. There are lots of explanations, obvious and otherwise, for these trends. But whereas conventional narratives of the jury’s demise have emphasized the inefficiency, cost, incompetence, and inaccuracy of the jury, the real culprits, Thomas argues, are each of the branches of government, which have “seized the domain of the jury.” As Thomas explains, “the executive charges, convicts, and sentences, despite juries indicting, sentencing, and convicting in the past. The legislature can set damages, although only the jury historically had that power. The judiciary circumvents juries by resolving cases via mechanisms such as the motion to dismiss, summary judgment, judgment of acquittal, and judgment as a matter of law, procedures nonexistent at our Constitution’s founding.” And all of this is on top of what Thomas consciously excludes from her discussion, the move (sanctioned, if not affirmatively encouraged, by all three branches) toward non-trial settlement—whether through plea bargains in the criminal context or alternative dispute resolution in the civil context.

More than just demonstrating the how and why of the demise of American juries, Thomas’s narrative also (if implicitly) reflects upon the consequences of such a development. These include the possibility that the demise of the civil jury has tilted particular types of litigation against plaintiffs; the rise of non-Article III federal adjudication tied, in many respects, to the absence (or shrinking) of constitutional jury-trial protections; and the more general concern that one of the important checks on abuses by legislatures, prosecutors, and judges has been so diluted so as to no longer be visible as a check.

This last point is the heart of Thomas’s normative claim—that the demise of juries has caused us to lose sight of their structural role in the constitutional system as a check on the very institutions that have been complicit in their demise. And whereas those institutions can usually be trusted zealously to protect their own prerogatives (“ambition must be made to counteract ambition,” as James Madison wrote in Federalist No. 51), Thomas argues that juries have a “unique inability to protect [their] own authority.” In other words, if one views juries as a co-equal structural feature of our constitutional system, they are fundamentally unequal in their ability to respond to real or perceived usurpations of their authority—or lack thereof. And those usurpations have happened through a number of measures designed to transfer decisionmaking power traditionally exercised by juries to legislatures, prosecutors, and judges. Because juries cannot really fight for themselves, other institutions ought to be held to constitutionally grounded limits on their ability to invade—and seize—the historical province of the jury.

Among other things, this leads to Thomas’s arguments about why summary judgment is unconstitutional; why the Grand Jury Indictment Clause of the Fifth Amendment, which has not been incorporated against the states, should be; why judges should not be able to enter judgments of acquittal in criminal cases; and why juries, not judges, must have the power to fix damages under any federal statute authorizing such a remedy. And although much of Thomas’s defense of these restorative moves is grounded in different species of originalism, the book closes with a powerful chapter taking a more comparative look at the contemporary role of lay jurors in other democratic legal systems—a role that, Thomas concludes, is far more powerful than anachronism-based critiques of juries might otherwise suggest. Simply put, Thomas’s proposals may not be as out-of-place with comparative contemporary practice as we might think at first blush.

Of course, Thomas’s proposals will strike many—especially legislators, prosecutors, and judges—as radical. Methinks that’s the point. And I, for one, find the demise of juries to be much more problematic in the criminal context than in civil cases, given the extent to which it tips the scales so much more decisively in one direction (to say nothing of the impact of the demise of the jury-trial right in non-Article III federal courts doctrine).

But Thomas’s book is a thing I like lots not because I agree with every word of it, but because I do not. It is the very best kind of legal scholarship—a narrative that does not force readers to agree, but does force them to think hard about the cause and effect of an undeniable trend and to reach their own conclusion about whether we have lost more than we have gained as a result.

Cite as: Steve Vladeck, Bringing in the Jury, JOTWELL (October 24, 2016) (reviewing Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (2016)),

Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys

Briana Rosenbaum, The RICO Trend in Class Action Warfare, 102 Iowa L. Rev. (forthcoming 2016), available at SSRN.

A racketeer, a mobster, and a plaintiffs’ mass-action attorney walk into a bar. What might be a decent setup for a joke is actually dead serious. Like members of organized crime, plaintiffs’ mass-action attorneys are being sued under the federal Racketeer Influenced and Corrupt Organizations (RICO) statutes. Briana Rosenbaum’s The RICO Trend in Class Action Warfare carefully considers existing remedies for frivolous litigation and critiques what she sees as the inefficacy of “the RICO reprisal.”

Rosenbaum readily admits that some mass-action attorneys include frivolous claims among meritorious ones in an attempt to obtain a larger settlement, otherwise known as “specious claiming.” But Rosenbaum argues that remedies for abusive litigation already exist. There are tort remedies such as malicious prosecution and abuse of process, and procedural remedies such as Fed. R. Civ. P. 11 and 28 U.S.C. § 1927. Rosenbaum posits that this existing remedial structure for vexatious litigants, while imperfect, was at least created with important countervailing policy considerations in mind, such as access to justice and administrative efficiency.

None of these countervailing policy considerations went into crafting RICO as a remedy for abusive litigation. Rosenbaum uses CSX Transportation, Inc. v. Gilkison as a case study to show just how poorly RICO works. CSX is the only known case to go to trial and result in a verdict against the plaintiffs’ attorneys. It arises from asbestos litigation, where it is undisputed that the plaintiffs’ law firm relied on a questionable expert who used controversial diagnostic methods. There is much to say about this case, but for purposes of understanding Rosenbaum’s article, one need know only the bottom line. The asbestos litigation defendants filed a RICO claim against the plaintiffs’ attorneys and demonstrated that eleven out of the 5,300 claims filed, or 0.2%, were baseless. On that evidence, CSX won its RICO claim at a jury trial, leading the parties to settle the case for $7.3 million.

To understand how this happened requires a basic understanding of RICO. First, to win a civil RICO claim, an injured party must prove that the defendant engaged in an enterprise through a pattern of racketeering. The statute provides an exhaustive list of “racketeering activity,” but the most common “predicate offense” in these recent cases against plaintiffs’ attorneys is mail or wire fraud. This criminal act must be shown before there is any civil liability under RICO. In CSX, the court found that every time the plaintiffs’ law firm filed a paper with the court—such as a complaint—or sent correspondence to opposing counsel—such as a letter with a courtesy copy of a mediation request—it committed mail fraud. The court determined that it was not just the eleven fraudulent claims that established a pattern under RICO, but was instead the mass suit itself because the attorneys allegedly used the threat of a mass action that included concealed fraudulent claims to leverage a higher settlement.

CSX is a shocking case that is part of a larger trend of mass-action defendants pursuing plaintiffs’ attorneys through RICO. The CSX numbers and facts are staggering, but perhaps appropriate if the punishment fits the crime. Rosenbaum argues that it does not. Calling on existing critiques of RICO in other contexts, Rosenbaum points out that necessary legal practice activities, such as making phone calls and filing court documents, become potentially criminal. Moreover, successful RICO claims result in treble damages, which inflate what a party would normally recover in a garden-variety malicious prosecution claim. If we are concerned with ensuring that courts remain open to aggregate litigation claims, Rosenbaum argues, RICO is much too powerful a weapon.

Rosenbaum also presents more nuanced arguments about why RICO is a poor regulation tool against frivolous claims. For example, she argues that RICO unnecessarily usurps state-law methods of regulating litigation. After all, RICO’s pleading standards and burden of proof are lighter than a state-law malicious prosecution claim, and the damages are certainly larger. This makes bringing a RICO claim, rather than a state tort claim, something of a no-brainer for defendants seeking a remedy against vexatious aggregate-litigation plaintiffs’ attorneys, which is exactly the problem that Rosenbaum wants to highlight. Perhaps RICO makes it too easy, producing a negative impact on aggregate litigation overall.

Finally, Rosenbaum points out that RICO is at once under- and over-inclusive. It is over-inclusive because it targets the entire mass action as a violation, not just the handful of baseless claims that may be part of that litigation. It is under-inclusive because it addresses only a sliver of the structural challenges aggregate litigation presents. Again, Rosenbaum does not dispute that over-aggregation is a problem, but relying on defendants’ attorneys to regulate plaintiffs’ attorney conduct seems equally problematic.

If RICO is to remain a part of the litigation game, however, Rosenbaum argues it should be reformed. When pure litigation conduct is challenged, courts could require a showing of malicious intent. This would bring RICO in line with existing common law remedies such as malicious prosecution. It also would re-balance access-to-justice concerns. Our system cannot be completely free from frivolous litigation. Indeed, we must tolerate some frivolousness in order to make room for meritorious claims. Moreover, requiring a showing of intent in the RICO context would not leave defendants without any recourse. They could still use existing remedies for pure litigation conduct, and RICO could be reserved for truly egregious litigation schemes.

Perhaps the title of this essay—Racketeers, Mobsters, and Plaintiffs’ Mass-Action Attorneys—made sense to you as a story about three equivalent evildoers. Or perhaps, like me, this group of individuals struck you as incongruent. Regardless of which explanation most speaks to you, you will benefit from reading Rosenbaum’s take on this emerging development in the civil litigation game.

Cite as: Brooke D. Coleman, Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys, JOTWELL (October 12, 2016) (reviewing Briana Rosenbaum, The RICO Trend in Class Action Warfare, 102 Iowa L. Rev. (forthcoming 2016), available at SSRN),

Common Law in the Age of Arbitration

Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371 (2016).

Judge-made law is dynamic. Rules adapt to innovations in technology, trends in human behavior and markets, and nascent theories that unsettle previously entrenched approaches to a problem. Even when a rule’s basic elements are stable, the accretion of new decisions can lead to subtly different formulations, caveats, and corollaries. Observers might therefore assume that doctrine in any given field will evolve for as long as affected actors are creative and litigious.

But even litigious actors cannot instigate changes to judge-made rules if litigation cannot lead to new judicial opinions. Myriam Gilles proposes a thought experiment to illustrate this possibility in her new article. Suppose that all cases in field X were suddenly shunted to arbitration, such that courts had no further opportunity to write opinions expounding on the law of X. Further suppose that choice-of-law provisions required arbitrators to apply judge-made rules governing X and that arbitrators would not write detailed opinions explaining their decisions (or that their opinions would be inaccessible to nonparties). In this hypothetical regime, the common law of X would stagnate. Doctrine would remain on the books as a source of guidance for arbitrators addressing the idiosyncrasies of individual cases. But those idiosyncrasies would no longer be catalysts for refining the publicly articulated rules that arbitrators apply. Judge-made law would shape outcomes, yet outcomes would not reshape the law.

Gilles’ article offers the game of musical chairs as a metaphor for the doctrinal stagnation that can arise when arbitration supplants public adjudication. When the music stops, players are locked into the arrangement of chairs at that moment. Each player’s position relative to the fixed chairs influences who wins and who loses. Likewise, when arbitrators who do not publish opinions begin deciding all cases in a particular field, litigants are stuck with the formulation of judge-made rules at the time judges were displaced. Given that doctrine is constantly evolving, any muting of public adjudication (the music in this metaphor) will occur after one innovation and before the next innovation. A normative assessment of whether the music has stopped at an appropriate time therefore requires considering both the content of current rules and the lost opportunity for those rules to develop. More generally, if one thinks that the common law process improves doctrine over the long term, then stopping the music at any point in a rule’s evolution may require a compelling justification.

Gilles develops her argument in three steps. First, she discusses several historical trends that coalesced into a movement away from public adjudication. For example, Gilles argues that the Reagan, Bush I, and Bush II administrations invoked the prospect of frivolous suits and burdensome litigation costs to justify making adjudication of a claim’s merits less likely and less effective. Gilles contends that even though legislative initiatives largely fizzled, judicial appointees from these eras successfully implemented what she describes as an “anti-lawsuit agenda.” At roughly the same time, the Supreme Court expanded the scope of the Federal Arbitration Act (FAA) to encompass federal statutory claims. This innovation empowered potential defendants to draft contractual arbitration provisions that circumvented courts in an increasingly wide range of cases, including putative class actions.

Second, Gilles considers the potential consequences of privatizing adjudication in three fields: antitrust, consumer protection, and employment discrimination. Each field features an active common law process in which judge-made doctrines elaborate on sparse statutory language. Each also implicates statutory claims that would arguably be immune from arbitration if the Court retreated from its expansive interpretation of the FAA.

Gilles uses these three fields as grist for a fascinating counterfactual question: How would the substantive law have developed differently if arbitration had been more widely available in the past? Her review of recent antitrust, consumer protection, and employment discrimination cases concludes that many share two characteristics: The parties had a contract, and the court’s opinion meaningfully altered or refined doctrine. These observations suggest that if the contracts had included an enforceable arbitration clause, then many important opinions never would have been written. Modern doctrine in this counterfactual world would include elements that were destined to change, but that persisted because of the shift from public to private adjudication.

The case studies provide a concrete illustration of how arbitration can “freeze” doctrine. If the Supreme Court interprets the FAA to allow arbitration of a particular claim, and if actors draft arbitration clauses that encompass such claims, then courts will lose opportunities to modify judge-made rules. The rules will persist, but they will not evolve. Of course, evolution in an adversarial system is not always for the best; any given change will have supporters and opponents. The prospect of doctrinal stagnation is nevertheless interesting even if its normative implications are not always apparent.

Third, Gilles notes that arbitrators can mitigate stagnation by publishing reasoned opinions. But she contends that arbitrators have little incentive to replace courts as public expositors of law because arbitration thrives on confidentiality and streamlined procedures. Courts could create such an incentive by refusing to confirm arbitral awards without a reasoned opinion, but that is not a path that FAA jurisprudence has taken.

Gilles’s analysis has several interesting implications. As she acknowledges, her thesis builds on earlier work by Owen Fiss exploring the risk that settlements pose for the explication of public law. Fiss was concerned about cases dropping out of the judicial system before a final decision, while Gilles is concerned about cases never reaching the judicial system. Both issues require assessing the value of judicial opinion-writing and weighing that value against the potential benefits of using private agreements to streamline dispute resolution.

Gilles’s argument also suggests that certain kinds of claims may be more susceptible to doctrinal stagnation than others. For example, suppose that claim Y arises exclusively in a context where the parties have a contract and one party has leverage to compel arbitration. In contrast, claim Z arises roughly equally in cases with and without contracts. Applying the FAA to claim Y would remove from the judicial system all or most cases raising Y, while applying the FAA to claim Z would leave courts free to adjudicate the subset of Z claims that do not involve a contract. Enforcement of arbitration clauses might therefore be more troubling in the Y context than in the Z context if the stagnation of doctrine is a legitimate factor to consider when allocating claims between public and private fora.

Another intriguing question arises from Gilles’ implicit assumption that reducing the number of judicial opinions in a field reduces innovation. A decline in the number of cases that courts adjudicate does not necessarily mean that rules will stagnate. What matters is whether the remaining cases provide a sufficient foundation for innovation. There is no obvious way to determine how deep the pool of justiciable cases needs to be, which complicates any effort to determine if arbitration has excessively drained it. Scholars might therefore consider how to identify the minimum number and variety of cases that courts must adjudicate in a given field to ensure that rules remain sufficiently dynamic.

Finally, lawyers will presumably engage in strategic behavior as they encounter the risks that Gilles identifies. The article focuses on scenarios where judges can no longer rule on an entire category of claims, such that the law becomes completely frozen. These scenarios illustrate the article’s theoretical point, but in practice may be outliers. Contracts are not ubiquitous in many areas of law, some contracts will not contain an enforceable arbitration clause, judicial review of arbitral awards may provide an opportunity to expound on rules applied by arbitrators, and government agencies may be able to file enforcement actions even if individual plaintiffs lack a right to sue.

The possibility that public adjudication will persist alongside arbitration means that the relevant ice metaphor is not that doctrines will entirely freeze. Instead, the pace of evolution might become relatively glacial. A lingering window for judicial decisionmaking will create opportunities for strategic behavior designed to induce doctrinal change. For example, government lawyers may bring enforcement actions that they hope will result in new judicial precedent for arbitrators to follow, public interest lawyers may look for test cases in which arbitration is not an obstacle to adjudication, and defense lawyers may seek opportunities to reshape rules with which their clients disagree. Stagnation of legal doctrine is therefore not an inevitable consequence of sending more cases to arbitration, but rather a risk that well-informed actors may attempt to avoid or exploit. The strategies that actors might employ would be an interesting topic for further study.

Gilles has creatively explored a difficult problem with a thought-provoking counterfactual experiment. Her analysis is an illuminating addition to the literature about the relative merits of public and private adjudication.

Cite as: Allan Erbsen, Common Law in the Age of Arbitration, JOTWELL (September 23, 2016) (reviewing Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371 (2016)),

The Vanishing Poor

It’s certainly not news that, in recent years, the Supreme Court majority has been unenthusiastic about class actions. Reinterpretations of procedural rules and standing requirements make class certification more difficult and efforts at certification more expensive. Ever-broadening interpretations of the Federal Arbitration Act also move claims out of courts and prohibit aggregation of claims in arbitration. Procedure scholars have lamented these decisions for years, as the gradual accretion of unfortunate decisions continues.

I love this essay by Myriam Gilles because it changes my focus from processes to people and shines a light on the groups whose claims disappear in the absence of class action litigation. Conceptually, I’ve talked about “negative value claims” or perhaps “consumers” and “employees,” but unconsciously saw the issue through the lens of my own class-member settlements in cases involving unauthorized foreign transaction fees and excessive e-Book prices. I failed to think through the many ways in which those SCOTUS decisions have a systemic and devastating impact on the poor and powerless.

Class Warfare explores three interconnected implications of the decline of class actions and their impact on low-income groups. First, it explores the ways in which the poor are particularly vulnerable to the kinds of unlawful practices that require aggregation for a remedy: low-value consumer claims and group-based workplace harms. Lack of access to conventional credit markets makes low-income consumers targets of financial abuses such as predatory lending, abusive mortgage terms, and subprime car loans. Payday loans are a particular scourge. Gilles argues that although there have been some efforts at regulatory enforcement, private class litigation has been an important tool in reigning in improper practices. She points to the class action against ACE Cash Express that settled in 2003, resulting in loan forgiveness, changed practices, and modest cash payments.

As for employees, Gilles posits that low-wage workers are more often victimized by employers. Explanations vary: they have less bargaining power, they lack information about alternatives, and they are rationally risk-averse (having no economic cushion in the event of dismissal). The result is lower pay, fewer benefits, less job security, more discrimination, and more violations of wage and hour laws. Again, there are some legislative and regulatory measures available, but for groups without political clout, aggregate litigation is a more effective alternative. Gilles does include a footnote identifying one fascinating example of nonjudicial self-help, however: an immigrants’ rights group has developed a smartphone app for day laborers. According to an article describing the app, “Workers will be able to rate employers (think Yelp or Uber), log their hours and wages, take pictures of job sites and help identify, down to the color and make of a car, employers with a history of withholding wages. They will also be able to send instant alerts to other workers.”

Gilles’ article’s second point focuses on the potential impact of successful class litigation, where the small monetary claims are not individually feasible but aggregation provides a powerful tool for group relief. The most important benefit comes not from individual class-member payouts (“small value class actions [are] quite poor vehicles for efficiently distributing tiny per-person damages”) but from broad-based injunctive relief and from the deterrent effect of forcing the defendant to internalize the social cost of its actions. Gilles suggests that both specific and general deterrence are at work. Without such deterrence, exploitative practices will repeatedly impact the same people. “[W]hen members of low-income groups suffer group-based harm, there is a high likelihood that precisely the same individuals will suffer precisely the same harm in the future given the inability to escape poverty. And further, it is likely that their children (and possibly grandchildren) will also suffer the same harms in the more distant future.”

Third, and equally worrying, Class Warfare identifies potential long-term effects of losing class actions that invoke the rights of low-income litigants. Will some types of litigation disappear from the docket (because litigating individual claims is not economically viable)? If so, will courts lose the ability to develop the law in those areas? And when both people and legal issues have almost vanished from the docket, will judges – themselves likely to come from high-income backgrounds – lose the ability to understand the lived reality of low-income people? To be sure, this cultural blindness already exists. Gilles cites United States v. Kras (1973) as an example of some Justices’ making false assumptions about the ability of a bankruptcy debtor to make payments and find a job. Judges, as humans, have the same kinds of implicit biases as the rest of us, and when there is no judicial exposure to poverty to enrich the lens through which judges view facts, inexperience can morph into fact-finding errors. This is all the more problematic at a time when judges are increasingly called upon to decide whether inferences from circumstantial evidence are plausible and whether discovery expenses are proportional given the “importance of the issues at stake in the action” and “the parties’ resources.”

One could quibble with some of Gilles’ points. Some of the abuses of the poor are legal, there are some agencies charged with providing relief, and some cases will find their way to court. Nonetheless, Class Warfare correctly describes the overall impact of court-rationing on low-income groups. Once again, the “Haves” come out ahead.

For some, the popular culture class action story is about greedy plaintiffs’ lawyers getting rich raising frivolous issues like the lack of vitamins in Vitamin Water and the presence of pesticides in “all-natural” tea. Gilles’ article is an important reminder that more is at stake. Procedural change has predictably disproportionate impact on those without the financial and legal resources to fully utilize the court system. It’s not just generic “consumers” and “employees” who suffer when class actions become unavailable; the burden will fall most heavily on those who have the least.

One last note: Class Warfare is part of a symposium issue of the Emory Law Journal (vol. 65, issue 6). Procedure scholars interested in Gilles’ essay will also find other articles in the issue fascinating.

Cite as: Elizabeth G. Thornburg, The Vanishing Poor, JOTWELL (September 9, 2016) (reviewing Myriam Gilles, Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket, 65 Emory L.J. 1531 (2016)),

How and Why Representation Matters

Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise, 93 Denv. L. Rev. 469 (forthcoming 2016), available at SSRN.

The sociologist Rebecca Sandefur estimates that a staggering one in three members of the population experiences a civil justice problem every year. Recent reports consistently pronounce that a glut of newly minted lawyers is crowding an oversaturated market. Yet low- and moderate-income Americans are far more likely than not to attempt to protect important rights to housing, custody, financial security, and physical safety without the benefit of attorney assistance. A conservative estimate puts the number of unrepresented parties in the civil justice system at twelve or thirteen million. Gillian Hadfield and James Heine suggest that the inaccessibility of legal services leads nearly forty percent of Americans to “lump” their civil justice problems, or do nothing to solve them.

In light of these distressing statistics, two hot topics in access to justice have emerged in recent years. In one camp are those who promote the need for a right to counsel—a “civil Gideon”—in a broader range of civil cases. In a second camp are those who propose innovative models for the distribution of scarce attorney resources, including the delivery of “unbundled,” or brief, services in lieu of full representation, as well as the licensing of non-attorneys to handle routine legal matters.

One complication in evaluating the various proposals to increase access to legal services is that we lack the robust empirical data necessary to determine whether, and in what forms, attorney representation makes a difference. And that is where Colleen Shanahan, Anna Carpenter, and Alyx Mark’s outstanding article comes in.

While several previous studies have examined the binary question of whether the provision of attorney assistance impacts outcomes, these authors take the analysis further. Reviewing 1800 unemployment insurance cases in an independent and professionalized administrative court, they examine not just whether representation correlates to improved case outcomes, but also the significantly more complex question of how and why representation matters.

Relying on their significant data set, the authors find that representation is positively correlated with favorable outcomes. This finding is intuitively sound and corroborates much of the extant literature on attorney impact but, on its own, is more confirmatory than revelatory. The authors go further, however, exploring various aspects of attorney and lay representation that might account for improved outcomes. They unpack the case and litigant characteristics associated with a range of outcomes and suggest that two primary factors may influence whether representation makes a difference: balance of power between the parties and strategic expertise.

In the authors’ data set, the balance of power influenced how much benefit the parties derived from representation. When the parties lacked other types of power, representation produced the most significant effect on outcomes. For instance, represented claimants were awarded unemployment benefits at three times the rate of their unrepresented counterparts. By contrast, represented employers did not have a statistically significant advantage over unrepresented employers. The authors attribute this difference in representation outcomes to the social and economic power that claimants lack and employers enjoy. Their finding lends empirical heft to Marc Galanter’s theory that the “haves” often outperform the “have nots” in the legal system—even in the absence of representation—because of the knowledge and social power they bring to their legal matters.

The authors also develop the concept of “strategic expertise” and contend that it plays a role in effective representation. They define this as a representative’s ability to “connect formal training with situational understanding.” And they show that it is not simply representation that matters, but also how that representation is deployed. For example, attorneys are more likely to utilize procedural entitlements, such as witness disclosure and document production. And while we might expect this to correlate to more favorable outcomes, it does not always do so. Indeed, in a fascinating illustration of their theory of strategic expertise, the authors show that attorneys who presented evidence on behalf of a claimant fared less favorably than those who withheld documents and instructed their clients to remain silent. While it is common in a criminal trial for a defendant to refrain from testifying, the decision to withhold party evidence in a civil case—especially one held in an informal administrative tribunal—is not a matter of conventional wisdom. This is where strategic expertise comes into play. The attorney must take into account the claimant’s burden of proof, the signaling effect that introduction of evidence may have on the judge’s perception of relative case strengths, and the potential for backlash against zealous representation in a tribunal where the vast majority of claimants are unrepresented.

In tackling the question of why and how representation matters, the authors also uncover important data regarding the impact of assistance that falls short of full representation. In a surprising finding, they note that a substantial percentage of “represented” employers did not have representation at the administrative hearing itself. Presumably, this type of representation resembles the model of “unbundled” assistance, in which the representative offers advice or document preparation, but not the full panoply of attorney services. The authors demonstrate that such behind-the-scenes representation may not translate to favorable case outcomes. According to their data, employers nearly tripled their prospects of winning when they had full representation at the hearing. This suggests that “unbundled” services, a hotly debated proposal for improving access to justice, may deprive parties of the strategic expertise that traditional attorney assistance brings to the table.

Shanahan, Carpenter, and Mark’s data offer considerable opportunity for future analysis, and I most look forward to a fine-grained evaluation of the comparative advantages of attorney and non-attorney assistance. This study analyzed “representation” wholesale, although thirty-eight percent of represented employers were assisted by professional lay advocates, not lawyers. The authors promise to address the distinction in their next article, using a much larger data set and qualitative interviews. This new data may provide important clues as to when and how non-lawyers may be able to bring strategic expertise to the table and impact the balance of power. And it comes as Washington State pilots a controversial program to certify Limited License Legal Technicians to represent clients in certain circumstances.

Shanahan, Carpenter, and Mark’s article offers a window into the potential of evidence-based research on questions of access to justice. We are in an age of innovation with respect to the delivery of legal services to low- and moderate-income individuals. Full attorney representation is a rare luxury that few can access. To design effective and alternative models of service delivery, it is essential to understand the particular aspects of representation that are most critical to a case. This article effectively combines Shanahan and Carpenter’s firsthand experience in litigating unemployment insurance cases as clinical professors with Mark’s social science expertise. The authors should be applauded for advancing our understanding of representation in context and for producing excellent access-to-justice scholarship that is both theory-proving and theory-generating.

Cite as: Jessica Steinberg, How and Why Representation Matters, JOTWELL (August 17, 2016) (reviewing Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise, 93 Denv. L. Rev. 469 (forthcoming 2016), available at SSRN),

Classing up the Agency

In previous jots, I have highlighted articles that addressed not the why of procedure but the how. Although other forms of legal scholarship are valuable, I have always had a soft spot for legal scholarship that provides guidance for judges and policymakers on how best to set up legal procedures.

It should therefore come as no surprise that a recent piece that I like lots is not a journal article, but a government report that addresses the problem of mass litigation in administrative agencies. The report discusses, and recommends, the use of class action and similar procedures in administrative adjudicatory proceedings that involve numerous claimants against one or a few defendants. Unlike a law journal article—which, like a message in a bottle, may float out to sea never reaching its intended audience—this report not only directly addresses policymakers, but they actually read and implemented it.

The report is the result of a law journal article serendipitously reaching its intended recipient. It is the brainchild of Adam Zimmerman and Michael Sant’Ambrogio, who published an article in 2012 proposing the use of class action and similar aggregate litigation procedures in administrative adjudication (an article that I liked lots in a different forum). The article caught the attention of the Administrative Conference of the United States (ACUS), an independent federal agency focusing on improving administrative processes. ACUS then asked Zimmerman and Sant’Ambrogio to study the use of aggregate procedures in federal agencies and make recommendations. This report is the result of that study.

Zimmerman and Sant’Ambrogio’s law review article is akin to a doctor making an initial diagnosis. Here, that initial diagnosis concerned the problem of numerous claims against a common defendant. Even with the more streamlined procedures of administrative adjudication, it can be difficult for claimants to finance and litigate given the costs. In contrast, a defending party can spread its costs on common issues across all of the numerous claims, thereby reducing the cost for each claim. As a result, the defendant invests more in common issues because it has more at stake. The report offers several vivid examples – providers and hospital claims against Medicare, EEOC claims of discrimination on behalf of thousands of employees against a single employer, or vaccine defect claims against large pharmaceutical companies made in the National Vaccine Injury Compensation Program.

But the report goes beyond diagnosis, looking more like an exhaustive physical examination and treatment plan. One important contribution is cataloguing class action and similar aggregate procedures already in use by some agencies, although the vast majority of agencies historically have not utilized or developed such procedures. In general, class actions and similar aggregate procedures alleviate the problem of “asymmetrical stakes” between the numerous plaintiffs and the defendant, by incentivizing third parties such as the class attorney to make proper investments in common issues and by streamlining procedures through the use of statistical sampling and bellwether trials. The different procedures developed at these few agencies are a testament to the ingenuity of administrators, who saw the failure to address aggregate procedures in the Administrative Procedures Act (APA) as an invitation to innovate procedures on their own.

For example, in the National Vaccine Injury Compensation Program, which displaced the existing tort system with an administrative procedure for defect claims, vaccine claims filed against manufacturers were initially adjudicated one claim at a time. This obviously overwhelmed the small office of eight adjudicators charged with adjudicating the claims. But this “small office” ingenuously used its “inherent authority to use ‘specialized knowledge’ to resolve common scientific issues in a consistent and informed way,” thereby streamlining individual claim adjudication. It also used “omnibus proceedings” which “loosely resemble multidistrict litigation, bellwether hearing procedures, and creative case-management techniques” to ensure adequate public input and investment on the resolution of these common issues. The Office of Medicare Hearings and Appeals not only utilized similar aggregate procedures, but instituted a “statistical sampling initiative” to deal with overpayments to avoid deciding such issues on a claim-by-claim basis.

In June 2016, the Administrative Conference, relying on the report, adopted a series of recommendations that are careful and sensible, reading like a greatest hits of best practices in dealing with high volume claims with common issues against a single party. They include defining when aggregate procedures should be used and what principles should apply in limiting these procedures. The recommendations urge agencies to “encourage[e] adjudicators and parties” to help identify common issues in cases that would benefit from aggregate procedures. They also ask agencies to ensure that all procedures are proposed and adopted publicly and transparently. These recommendations have since been published in the Federal Register, and have already been influential. For example, the Department of Education recently proposed class action rules for student loan forgiveness claims against predatory and insolvent for-profit colleges.

The legal academy is often chastised for not addressing the problems of policymakers. I do not think that legal scholarship should solely address current problems, and JOTWELL does an extraordinary job of highlighting successful scholarship achieving a variety of objectives. But the criticism itself is also overstated, because it ignores the good work done by scholars who assist with legal reform. This report is a great example of legal scholars and policymakers working together to solve important problems.

Cite as: Sergio J. Campos, Classing up the Agency, JOTWELL (July 25, 2016) (reviewing Administrative Conference of the United States, Aggregate Agency Adjudication, Final Report (June 9, 2016); Administrative Conference of the United States, Administrative Conference Recommendation 2016-2, Aggregation of Similar Claims in Agency Adjudication (June 10, 2016)),

Saving the Public Interest Class Action by Unpacking Theory and Doctrinal Functionality

David Marcus, The Public Interest Class Action, 104 Geo. L.J. 777 (2016).

Scholars, lawyers, and litigants struggle to understand the class action landscape that has evolved over the past five decades and has sharply contracted more recently. Seminal rulings such as Wal-Mart v. Dukes and its progeny in the lower courts have sown division and analytical confusion over the meaning and normative value of this obstructionist shift in jurisprudence. In The Public Interest Class Action, David Marcus dives into this morass, examining one slice of this jurisprudential retrenchment and its varied implications—class action procedure in public interest litigation, litigation brought against government officials and agencies for injunctive relief.

Marcus’s focus on structural-reform cases against public actors illustrates how most of the policy concerns animating class certification retrenchment are unjustified, misplaced, and dangerous to enforcement of constitutional rights. Much of the academic critique has centered around the role of monetary interests in aggregation—a distortion and distraction for understanding the public interest class action. The casualties of this misalignment are vulnerable populations such as foster children, prisoners, and students with disabilities, who have historically successfully sought structural remedies through aggregate litigation. Marcus speaks directly to judges chewing on how to approach class-certification motions and counsels them to manage structural reform litigation, not destroy it. Marcus puts retrenchment advocates to their proof, concluding that they have failed to prove how public interest class actions pose policy problems that can be rectified by Rule 23 obstructionism.

The article sets up the shift in class action treatment in recent history. The “Old Era” was characterized by easy certification of public interest classes, with Rule 23(a)(2) commonality and the Rule 23(b)(2) injunctive class as the two primary entry points. Commonality was easily satisfied, as the common issue was defined at such a high level of abstraction that the mere question of liability or allegation of group harm often sufficed. Moreover, courts were reluctant to engage the merits when determining whether commonality was met. Rule 23(b)(2) was also easily cleared, and in fact, was designed with civil rights and group rights in mind.

By contrast, the “New Era”—foreshadowed by Judge Frank Easterbrook in 2008 and in full bloom over the last decade as seen in cases such as Wal-Mart—has erected numerous barriers to public interest class litigation. By heightening commonality and refashioning Rule 23(b)(2) to require indivisibility of remedy, Wal-Mart has hampered structural reform litigation that does not affect policy concerns over monetary interests the opinion purported to address. Lower courts have followed suit, regardless of the inapplicability of monetary stakes in public interest aggregation.

Without answering why this class action retrenchment has occurred, Marcus argues that judges should use class action procedure consistent with the function of Rule 23. As a starting point, he recognizes two characteristics of classes certified for injunctive relief: claim interdependence and remedial indivisibility. He then creates a three-part typology based on the different degrees of each characteristic in a particular case: I) necessarily interdependent & necessarily indivisible; II) necessarily interdependent & plausibly indivisible; or III) plausibly interdependent & plausibly indivisible.

Marcus provides useful examples. For example, a Type I case is one that involved plaintiffs challenging California highway patrol officers for enforcing a state law that punishes motorcyclists who do not wear helmets that comply with federal law. Plaintiffs contended that stopping motorists without knowing if their helmets were out of compliance necessarily lacked reasonable suspicion, in violation of the Fourth Amendment. They consequently sought to enjoin enforcement of the state law. These claims are necessarily interdependent because a judge cannot determine the validity of one motorcyclist’s claim without determining the validity of all others. Moreover, the remedy is necessarily indivisible because a remedy for one motorcyclist–an injunction prohibiting enforcement of the law—would inure to the benefit of all.

An example of a Type II case is one that involved same-sex couples challenging Virginia’s prohibition on same-sex marriage. The plaintiffs sought an injunction prohibiting enforcement of the state law prohibiting same-sex couples from obtaining marriage licenses and ordering the responsible county clerks to issue licenses. These claims are necessarily interdependent because, again, a judge cannot determine the lawfulness of the state policy against same-sex marriage for one couple without determining the same for all others. Because a court could theoretically require different remedies for each couple denied a license by each county clerk, however, the remedy is plausibly indivisible. Individually tailored injunctions, although unlikely, are possible.

An example of a Type III case is one that involved prisoners alleging a variety of problems with the healthcare provided by ten prison complexes operated by the Arizona Department of Corrections. Unlike the express policies targeted in Type I and II cases, a Type III case targets a custom or practice of deliberate indifference that plays itself out in myriad ways for thousands of prisoners at the hands of different corrections officers. These plaintiffs’ claims are only plausibly interdependent and their remedies only plausibly indivisible. This is not to say that a judge could not find unlawful systemic indifference that is manifested in different ways as to different people and issue an injunction to address the statewide problem. But depending on the level of harm challenged, the judge could also recognize individual claims and divisible remedies. The Type III public law litigation case prompts the most significant question about the propriety of Rule 23 certification.

Rather than look to the text and history of Rule 23 to explain the need for class actions in public law litigation, Marcus considers how standing and scope-of-remedy doctrines—what he calls the “right plaintiff principle”—undermine the class action device. These doctrines dictate whether the right person is seeking injunctive relief from the defendant on both the front and back ends of the litigation. Standing requires that a plaintiff have a personal stake in the outcome and suffer a personal injury-in-fact rather than a generalized one, thereby ensuring the development of a real factual record and concrete adversity necessary for informed adjudication. Standing restrictions also protect separation of powers by allowing only individuals with concrete harms to use the power of judicial enforcement, leaving citizens with generalized grievances to use the legislative process as the default for obtaining relief. Scope-of-remedy similarly requires a court to narrowly tailor relief to the actual case before it, thereby protecting the province of other courts and the circumspect range of judicial power.

These doctrines, although workable in Type I and II cases, make it difficult for an individual to successfully pursue structural reform in Type III cases. Marcus explains how the substantive law in Type III cases often vests claims in groups—an interest that is thwarted by the standing and scope-of-remedy doctrines. Relying on evidence of other individuals’ experiences in Type III cases to establish systemic liability “hardly opens the courthouse doors to ordinary members of the public and to preferences better vindicated in political arenas.”

Marcus argues that the result of this right plaintiff principle is substantive legal dormancy. And the antidote to this dormancy is the class action, properly administered.

Class action procedure can serve as a counterweight to the right plaintiff principle in public law litigation. For example, the class action requirement of commonality ensures a common course of government conduct that affects the class representative and class members alike, making the representative more than a generalized aggrieved citizen and ensuring a factually concrete record. Similarly, the juridical link between the defendant’s conduct toward the representative and toward class members means the remedy need not be limited to the class representative. Moreover, the class representative has remedial standing to seek an injunction regardless of the likelihood of future harm, because she functions as an undifferentiated member of a group vested with a claim recognized by the substantive law. So long as the class representative functions in this manner, the right plaintiff principle is not undermined.

The “class action’s chief function for public interest cases [is] to enable the vindication of claims the substantive law vests in groups, when other strands in the web of doctrinal governance for public interest litigation would unnecessarily render them dormant.” This function can guide judges in the proper administration of Rule 23.

Marcus circles back to his typology to demonstrate how the counterweight function of the class action must do heavier lifting in Type III cases. Type I and II cases, although more paradigmatic class cases, ironically need class certification less because of the relatively seamless connection between the individuals’ claims and remedies—the tighter the nexus, the less necessary certification is. In Type III cases, however, the distinction between the individual and the group matters.

The solution is for judges to focus on that function in applying both commonality and Rule 23(b)(2). Marcus proposes that judges consider two criteria for commonality: 1) proof that the substantive law vests a claim in a group that the class representative wants to represent and 2) proof that the group actually exists. An illustration is a Title VII pattern-or-practice claim for prospective relief. He similarly suggests that judges considering the counterweight function cabin Rule 23(b)(2) to those injunctions whose administration does not require individual determinations for each public interest plaintiff. In other words, the remedy sought should be broad and undifferentiated, in line with Rule 23(b)(2)’s constrictions.

In sum, this article makes an important contribution by challenging judges to consider the theory and doctrine of public interest class actions post-Wal-Mart. Its defense of modern structural reform litigation and argument against the misuse of class action procedure offers much to the literature, jurisprudence, and practice.

Cite as: Suzette M. Malveaux, Saving the Public Interest Class Action by Unpacking Theory and Doctrinal Functionality, JOTWELL (June 29, 2016) (reviewing David Marcus, The Public Interest Class Action, 104 Geo. L.J. 777 (2016)),

The Irrepressible Myth of SCOTUS

Corinna Barrett Lain, Three Supreme Court “Failures” and a Story of Supreme Court Success, 69 Vand. L. Rev. 1019 (2016).

In The Case Against the Supreme Court, Erwin Chemerinsky explains why he is disappointed in the Supreme Court and its failure to function as it is designed—as a countermajoritarian check on society’s worst majoritarian impulses, protecting individual rights from popular encroachment and offering a venue to minorities shut out of success in the political process. Commenting on the book, Corinna Lain argues that the source of Chemerinsky’s disappointment is his expectation that this is the Court’s function. And, she argues, the source of that expectation is the Supreme Court itself. On Lain’s telling, every case in which the Court is perceived to have “failed” in its countermajoritarian role actually reflects the Court’s success in furthering the story (I might label it a “myth”) of what it does, what it should be, and what many scholars (I would put myself in this group) hope and expect it to be.

Lain focuses on three cases routinely disparaged as judicial failures–Plessy v. Ferguson (upholding segregated railroad cars and, by extension, Jim Crow laws), Buck v. Bell (upholding forced sterilization programs), and Korematsu v. United States (upholding the exclusion of people of Japanese ancestry from the West Coast). All are uniformly recognized today as among the most grievous examples of the Court failing to protect individual rights and vulnerable minorities.

But Lain argues that the historical and cultural contexts in which the Justices operated explain, even if they do not normatively justify, the outcomes in each case. Plessy and Buck reflected what, at the time, were widely popular, accepted, and even progressive views—Booker T. Washington and other prominent African-American leaders supported segregation, Helen Keller and Margaret Sanger supported eugenics (the scientific theory underlying forced sterilization). Korematsu followed a genuinely earth-shaking event and was decided in a period of total war, over which the Court was not likely to challenge the public and the war-making branches. In fact, Lain argues, a closer look at Korematsu’s internal dynamics shows the Court doing more than we might expect–it refused to lend judicial imprimatur to internment, performing “judicial backflips” to rule only on the constitutionality of exclusion and not pass on the validity of internment). And in Ex parte Endo, Korematsu’s companion case, the Court ordered the government to release those whose loyalty had been established. Moreover, none of the three “failures” was obviously incorrect on the law as it stood at the time—the problem with these cases is not doctrinal, but that each rests on “value judgments that we strongly reject today.”

Cultural and historical context in turn affects how we should understand the judicial role. The Justices are part of the broader society and share many of its widely held ideas, which the Court’s judgments inevitably reflect. The Court’s “failures” are not necessarily decisions in which the Justices recognized a wrong but refused or were unable to stop it out of fear—the concerns that Article III protections of life tenure and guaranteed salary are designed to alleviate. Rather, the Justices shared the prevailing legal, political, and social views informing the challenged actions and simply were not going to depart from those views. That prevailing culture sets “limits on the plausible constitutional outcomes that a majority of the Justices might find agreeable,” simply because the Justices, even subconsciously, are immersed in that culture. It is unfair, Lain insists, to expect them to depart so far from societal norms that they themselves share.

Lain generalizes this argument to judicial review more broadly. In particular, it explains why the Court has most vigorously protected minorities from majoritarian overreach at the state and local, rather than national, levels. She cites the invalidation of segregated education in Brown and the recognition of procedural protections for criminal defendants in Gideon v. Wainright; we could add free speech, where the Court protected civil rights protesters and their supporters from local restrictions, but not communists or anarchists from federal prosecution. As Lain argues, when “the problem is not a pocket of oppression but rather society itself, the same values that permeate the rest of the population are highly likely to color the Justices’ views too. And that limits what the Supreme Court can realistically do.”

Yet Chemerinsky and others remain disappointed that the Court has not lived up to some ideal as a countermajoritarian protector of politically powerless minorities. Importantly, however, they can be disappointed in the Court only if they were expecting it to do better. And given Plessy, Buck, and Korematsu (to name only three), we might wonder where that expectation comes from. According to Lain, it is because the Court has convincingly established this as its role, even while not always performing it (at least not in the way many would like). Lain argues that this “role is not inherent in the Court’s composition; it did not spring forth from the Constitution fully formed. It did not have to be, but it is, and it is because the Court created it.”

Beginning with Footnote 4 of Carolene Products, the Court has sprinkled decisions with rhetorical flourishes about its standing as the bulwark protecting individuals and the Bill of Rights against the tide of popular passions, and about conducting more searching judicial inquiries into laws that disadvantage discrete and insular minorities or that touch on specific constitutional prohibitions. The Court even did this in Korematsu itself, dropping what Lain calls an “awkwardly placed” declaration that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect,” before pronouncing that suspect legal restriction constitutionally valid.

And this idea has stuck. It does not matter that the Court often has rejected the rights claim amid the rhetoric. Nor does it matter that even the Warren Court, held up as the one true period of countermajoritarianism, often acted in step with, rather than against, larger socio-political changes. Nor does it matter that some of the most rights-protective Justices have produced the greatest failures—Justice Black wrote, and Justice Douglas joined, the majority in Korematsu; Justice Holmes wrote Buck nearly a decade after planting the seeds for vigorous judicial protection of free speech.

At the same time, this rhetorical creation has some practical benefits. First, the Court’s self-conception as countermajoritarian defender frees it to actually play that role, at least at times. Broad public acceptance of the Court’s rhetoric allows the public to accept at least some of the decisions in which the Court flies in the face of majoritarian sentiment. While we do not have a full understanding of when the Court will choose to play the countermajoritarian role and when it will not, Lain argues the Court can do so even occasionally only because it has put itself in this rhetorical position. Second, the Court’s promotion of this ideal influences those who argue before and write about the Court (Chemerinsky regularly does both). It prompts them to continue bringing their arguments to the Court, continue talking about the Court, and, most importantly, continue responding to their disappointments by refining their arguments and critiques until they find the ones that work, both with the Court and with the public. As Lain summarizes the point, “the Justices cannot transcend the culture in which they live, but the expectations the Court has created can do something better—they can set in motion the very forces that can, over time, change culture itself.”

This article continues two significant recurring themes of Lain’s larger body of scholarly work—the role of cultural and historical context in constitutional decisionmaking and the historical inaccuracy of the Court’s countermajoritarianism narrative (even in those cases in which it “succeeds” in protecting individual rights). It then adds a new piece to that puzzle—the self-reinforcing influence of the Court’s rhetoric on the Court and on our expectations. Regardless of what the Court actually does or why, the expectations themselves tell “a separate, and decidedly consequential, story of Supreme Court success.”

Cite as: Howard M. Wasserman, The Irrepressible Myth of SCOTUS, JOTWELL (June 1, 2016) (reviewing Corinna Barrett Lain, Three Supreme Court “Failures” and a Story of Supreme Court Success, 69 Vand. L. Rev. 1019 (2016)),

Fit to Be Tied

Justin Pidot, Tie Votes in the Supreme Court, Minn. L. Rev. (forthcoming 2016), available at SSRN.

Ever since Justice Scalia passed away in February, the Supreme Court of the United States has been operating with eight justices. As readers are surely aware, this is one justice short of its statutorily mandated population of nine.

There is widespread consensus among mathematicians that the number eight is evenly divisible by two, while the number nine is not. So it should come as no surprise that the Supreme Court has handed down several 4-4 decisions in recent months, with more expected before the Term wraps this June. In light of Senate Republicans’ refusal to hold a hearing on President Obama’s nominee to replace Scalia—and predictions that such a stalemate might extend well into the next President’s term—this even-numbered state of affairs could well become the new normal. Enter Justin Pidot’s article, which provides a timely, thoughtful, and informative examination of tie votes at the Supreme Court.

Pidot begins with a little history. The basic rule that a tie vote leads to an affirmance of the lower court decision—but does not establish any binding precedent—is almost as old as the Republic itself. It dates back to the Court’s 1792 decision in Hayburn’s Case, when a six-justice Court divided equally on whether our nation’s first Attorney General, Edmund Randolph, had the authority to file a petition for mandamus ex officio.

Next, Pidot sets out the results of his empirical analysis of tie votes between 1925 and 2015. (He chose the starting date because the 1925 Judiciary Act made it so the vast majority of the Supreme Court’s docket would be at the Court’s own discretion, via a writ of certiorari.) Pidot limits his study to cases where the Court is equally divided on the judgment, rather than where the Court is equally divided as to the reasons for the judgment. Pidot also excludes from his dataset motions—such as requests for stays or writs of mandamus—that the Court denied because of a tie vote.

Within these parameters, Pidot finds 164 tie votes during the period from 1925 to 2015. He reports that in 149 of these, the Court did not identify how each of the voting Justices voted, and neither the Court as a whole nor any individual justices provided any reasoning or explanation in support. This is consistent with the one-sentence rulings we have seen from the Court so far this Term: “The judgment is affirmed by an equally divided Court.”

Pidot then turns to the fifteen cases that do not fit this description. In some, the Court noted its equally divided vote on a particular issue as part of a larger opinion resolving the case on other grounds. (This happened again just recently in Franchise Tax Board v. Hyatt, where the post-Scalia Court split 4-4 on whether to overrule Nevada v. Hall, but a 6-2 majority reversed the lower court’s judgment on other grounds.) In others, the Court divided equally as to one party but made some other disposition as to other parties—such as dismissing cert as improvidently granted (a “DIG”), or granting cert but vacating and remanding for reconsideration in light of some other decision (a “GVR”). Pidot also found one fascinatingly odd case where the Court granted certiorari and—in the same order and without merits briefing or oral argument—affirmed by an equally divided court. There were only three cases in the dataset where any justices authored an opinion that explicitly revealed their views about the particular issue on which the Court divided equally.

Pidot’s article also explores the normative implications of 4-4 ties. The major practical downside of such decisions is that they can compound a lack of uniformity in the federal judiciary, because they fail to generate binding precedent that otherwise could have resolved disagreements among lower courts. These concerns have prompted some to call for institutional changes—such as the appointment of substitute justices—to avoid tie votes.

To assess the extent to which this has been a problem, Pidot looks at the 21 tie votes that occurred between 1986 and 2010. He argues that the lack of precedential decisions in those cases did not significantly undermine uniformity. It remains to be seen whether this will still be the case if we find ourselves in a sustained period of only eight justices—rather than the more typical situation where eight-justice decisions result from occasional recusals in particular cases. But Pidot’s findings from these 21 cases are very interesting. He identifies six cases where there had not been a split of lower court authority before the Court granted cert; thus the lack of a binding Supreme Court decision did not allow a lack of uniformity to persist. In nine cases where a circuit split did exist, the Supreme Court granted cert in a later case and resolved the disagreement. For cases in this category, the two longest delays between the 4-4 affirmance and the later cert grant were nine and ten years; all of the others were four years or less (in one instance, the Supreme Court decided a follow-up case within five months). Pidot also finds two examples where a split was resolved notwithstanding the 4-4 Supreme Court affirmance, either because some lower courts changed their position or because the Executive Branch promulgated clarifying regulations. He concludes that there were only three examples during this period where an important circuit split remained unresolved following a tie vote at the Supreme Court.

Pidot proposes one change to the way 4-4 votes are currently handled. He argues that the ultimate result of a tie vote should not be an affirmance of the lower court. Rather, the Court should DIG such cases. This would have the same practical consequence of leaving the lower court decision intact. But Pidot finds a DIG preferable to affirmance for several reasons. Among other things, having justices cast affirmative votes on the merits risks biasing those justices in future cases, due to psychological dynamics such as confirmation bias, cognitive dissonance, and the “lock-in effect.” He also contends that an affirmance based on a tie vote can undermine the legitimacy of the Court—furthering the perception that the Court is political rather than impartial, raising ethical questions in future cases by indicating that justices have prejudged a particular issue, and encouraging gamesmanship by highlighting who the tie-breaking justice will be (the one who did not vote in the case that generated the 4-4 tie).

Pidot recognizes, however, that many of these concerns are not absolute. For example, judges do change their minds on certain issues. My favorite “exception that proves the rule” is Free v. Abbott Laboratories—a case that Pidot identifies as a tie vote where the issue left unresolved was addressed on the merits in a later Supreme Court decision. The Court had granted cert in Free to resolve whether supplemental jurisdiction is available for certain kinds of claims, but Justice O’Connor recused herself and a 4-4 tie ensued. When the Court revisited that issue in Exxon Mobil v. Allapattah, O’Connor was in the minority—even though the membership on the Court had not changed. So one of the justices in the Allapattah majority (Rehnquist, Scalia, Kennedy, Souter, or Thomas) must have changed his view after the vote in Free.

The current stand-off over filling Scalia’s seat on the Supreme Court means that tie votes at the Supreme Court present a more crucial challenge than ever. Pidot’s article is a must read for anyone who wishes to wade into this important topic.

Cite as: Adam N. Steinman, Fit to Be Tied, JOTWELL (May 18, 2016) (reviewing Justin Pidot, Tie Votes in the Supreme Court, Minn. L. Rev. (forthcoming 2016), available at SSRN),

Process Failure on the Road to Obergefell

Josh Blackman and Howard M. Wasserman, The Process of Marriage Equality, 43 Hastings Const. L.Q. 243 (2016), available at SSRN.

In The Process of Marriage Equality, Josh Blackman and Howard Wasserman provide a chronicle and critical assessment of the judicial decisions about procedure, jurisdiction, and remedies through which the federal courts moved from United States v. Windsor to Obergefell v. Hodges. It is an essential article for understanding how the process unfolded.

The picture painted by the authors is not a pretty one. Some of the procedural decisions come out looking somewhat shabby, and the judges who made them possibly partial. Blackman and Wasserman do not always say so squarely, but the best explanation for some of the procedural misadventures they chronicle is likely found in partial judicial strategery: Procedural monkeying made the underlying substantive right more likely to stick, which is what the judges wanted because they were partial to the plaintiffs (and similarly situated couples) seeking it.

This is a strong claim, and one that the authors stop short of making when assessing most of the procedural decisions. But at times they come close. Consider, for example, their bottom-line assessment of why Judge Crabb of the Western District of Wisconsin granted summary judgment for the plaintiffs but delayed issuing an injunction or a stay for a week: “The most plausible explanation for this bizarre turn of events is that it was a deliberate effort to allow marriages to proceed before the court of appeals put them on hold.” Or consider their characterization of the Fourth Circuit’s denial of a stay as “inexplicable” (p. 305), and the judges’ order as revealing “what can charitably be described as deliberate indifference” to the contrary orders of the Supreme Court and other circuits.” (P. 306)

The authors do not declare themselves on the substantive correctness of Windsor or Obergefell, and it might be that the two are not of the same mind on that point. But it would be difficult to dismiss their critical assessments of “the process of marriage equality” as the product of disgruntlement with the Supreme Court’s adoption of a constitutional right to same-sex marriage. After all, their descriptions of the core issue as one of “marriage equality” and of the state laws at issue as “bans” come straight from the plaintiffs’ playbook.

The authors’ criticisms appear to arise, instead, from a sense that much of the confusion and disorder surrounding a domain that should be marked by clarity and order was unnecessary. This can be seen in the way that they praise the decisions of some of the lower courts that they examine. They describe as “particularly measured,” for example, the path chosen by lower courts that held invalid “bans on same-sex marriage, but put their judgments on hold pending the review process.” (P. 291.) They quote Judge Heyburn of the Western District of Kentucky, who expressed empathy with plaintiffs’ desire for quick action but stayed his judgment nonetheless, because “[i]t is the entire process … which gives our judicial system and our judges such high credibility and acceptance.” (P. 292.) “It is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well.” (P. 292.) These are the words of the quoted judge, but they also express the thoughts of Blackman and Wasserman.

A primary difficulty with the process, they observe, is that the Supreme Court sent conflicting signals from its perch at the top of the federal judicial hierarchy. The Court initially ordered stays, presumably to maintain the status quo pending its resolution of the merits. But the Court then denied certiorari in the stayed cases, and subsequently declined to issue stays. The consequence was predictable. “[L]ower courts appeared conflicted about what to do with the penumbras emanating from the shadow docket—whether to decide cases by exercising their best judgment in light of existing precedent or to be guided by the Court’s non-precedential and unexplained signals.” (P. 285.)

Despite their evident disdain for result-oriented proceduralism, Blackman and Wasserman ultimately counsel lower courts against any “formalistic approach [that] disregards the Supreme Court’s role as traffic cop in major constitutional cases.” (P. 323.) Once the Supreme Court has taken an interest in high-stakes constitutional litigation, they argue, lower courts should put a hold on their injunctions and let the Supreme Court dictate the pace of constitutional change. (P. 324.)

There is a pragmatic streak that runs through the authors’ proceduralism. They carefully discuss, for instance, the formal legal differences between the binding authority of precedents and of injunctions. But they also acknowledge circumstances, such as when there has been a final appellate ruling, in which officials who are not formally bound by a ruling should nonetheless act as if they are. That is sometimes “the cheapest, simplest, and likely least controversial move.” (P. 272.)

Although the authors are critical of courts throughout, Blackman and Wasserman do not limit their criticisms to the courts. They devote one of the article’s three principal sections to an unsparing assessment of the unavailing attempts of state officials to use unpersuasive abstention theories to slow down federal court adjudication of states’ marriage laws.

Overall, however, the focus of The Process of Marriage Equality is on the courts, and the balance of the assessment is critical.

All of us now are still too close to the process of this particular constitutional change to have the perspective that comes with the distance of many years. But the chronicle that Blackman and Wasserman provide will remain valuable for future observers who possess such a perspective. Whether those observers view Obergefell more like Brown or more like Roe, the record of the process that led to Obergefell will remain. As one who largely agrees with Blackman and Wasserman’s critical assessments—if anything, I would be more critical—I suspect that this record is not likely to look any better with age.

Cite as: Kevin C. Walsh, Process Failure on the Road to Obergefell, JOTWELL (May 2, 2016) (reviewing Josh Blackman and Howard M. Wasserman, The Process of Marriage Equality, 43 Hastings Const. L.Q. 243 (2016), available at SSRN),