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Enhancing the Role of States in Making Constitutional Law

Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018).

Jeffrey Sutton has much to teach us about the role of courts, state and federal, in making constitutional law. Sutton, well-known for his work as a judge on the United States Court of Appeals for the Sixth Circuit, has drawn on years of experience and research in this book-length rumination on the way state courts (and constitutions) can contribute to constitutionalism more broadly. Sutton served for some years as the solicitor general of Ohio, and knows the joys and heart-breaks of state constitutionalism first hand. Indeed, among the many happy turns of phrase in the book, one finds Sutton (many years after the fact) wistfully pursuing motions to reconsider the adverse decisions that most set his teeth on edge.

Sutton approaches his task with a deep appreciation of modern constitutionalism and an eye and ear for storytelling keen enough to engage readers both learned and lay. In brief, Sutton, argues, we have mistakenly come to view federal or national constitutionalism as the only game in town and have slighted state constitutionalism as a source of rights. Sutton describes a world hungry for rights articulation and suggests that state courts might play a more active role in the process. Sutton encourages lawyers to mount more state constitutional challenges, thereby giving their clients an extra shot at success. He also encourages state courts to take their own constitutions more seriously, noting that these documents often contain provisions missing from their national counterpart.

Sutton’s argument for state constitutionalism would advance three related goals. He invokes the familiar Brandeis idea of states as laboratories, extending it to judicial experimentation with constitutional rights. Rather than locking us all into a single national solution, state constitutionalism can flex in light of local conditions. States might vary in terms of the strictness with which they enforce the right to bear arms, depending on whether they tend to worry more about urban gun violence or the preservation of a rural hunting ethos. Other states, depending on their own history and patterns of migration and settlement, might take different views of the free exercise of religion or the guarantee of compensation for the taking of private property.

Apart from allowing states to experiment and adapt constitutional guarantees to local conditions, Sutton’s vision of state constitutionalism would allow the national courts to draw on state experience in considering when to nationalize a particular set of rights. Sutton points to the way the Court in Mapp v. Ohio drew on the experience of the states with the exclusionary rule, in contrast to Buck v. Bell, in which the Court, through Justice Holmes, refused to take opposing state court decisions seriously in the course of upholding the forced sterilization of Carrie Buck. Sutton’s dismay with Holmes, who upheld the Virginia law less as a dispassionate judge and more as an enthusiastic cheerleader for eugenics, leaps off the page.  Sutton also observes that state courts led in developing a guarantee of same-sex marriage equality, providing the Obergefell Court with signposts to guide its way.

Finally, Sutton argues that, by virtue of their knowledge of local conditions and politics, state courts can better “manage” the implementation of the new rights they recognize than the far-away Supreme Court. Sutton offers the school finance cases as a lesson, tracing how state courts responded after the Supreme Court rejected an equal protection challenge to school funding disparities. Sutton sees the complexity in how states fund their public schools and doubts that the Supreme Court could have articulated a standard that would apply effectively to the wide array of local arrangements. He contrasts national incapacity with the more nuanced appreciation that state judges brought to task of reworking school funding decisions. While he recognizes some state-to-state disparities, Sutton views the state experience as a qualified success—virtually every state has re-worked its school funding models, without needing a federal obligation to do so.

Sutton proposes changes in the way state courts resolve constitutional claims. State courts facing challenges to state action based on parallel provisions of the state and federal constitution typically decide the federal question first. This sequencing stultifies state constitutionalism. Many state courts also interpret parallel state provisions in lockstep with their national constitutional counterpart and decline to give any independent content to state constitutional guarantees. Sutton would have state courts step out on their own, developing pockets of independent law that might grow over time as the judges gain greater confidence. Sutton asks law schools to give greater attention to state constitutionalism, hoping to generate more interest and more action as it were. Along the way, he devotes thoughtful attention to Justice Brennan’s attempt, some forty years ago, to encourage development of state constitutional law.

This bracing effort to revive state constitutionalism will open eyes and might change constitutional practice. One can, of course, question one or two particulars. The Supreme Court does not stand alone in crafting constitutional rights or in managing their implementation. Having learned the lessons of Brown, the Court relies extensively on the creativity and energy of lower federal court judges to carry its pronouncements into effect. In thinking about how courts might manage a guarantee of equality in school funding, Sutton may focus too much on the comparative isolation of the Supreme Court and too little on the managerial capacity of local federal district judges.  Sutton’s account of the role of federalism in constitutional rights development may also teach unexpected lessons about the viability of originalist precepts. He explains that one cannot premise a national constitutional right on “local traditions, cultures, or history . . . of one region of the country or one group of citizens.” While addressed to constitutional lawmaking today, this analysis may cast doubt on the relevance of the traditions, cultures, and history that surrounded the relatively narrow slice of individuals who made up the founding generation. If so, that is just one of the many insights one gains from reading this lively and informative book.

Cite as: James E. Pfander, Enhancing the Role of States in Making Constitutional Law, JOTWELL (January 30, 2019) (reviewing Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018)),

Procedural Innovations to Address the Secrecy Problem in National Security Litigation

Shirin Sinnar, Procedural Experimentation and National Security in the Courts, 106 Cal. L. Rev. 991 (2018).

Public litigation implicating national security issues faces a particularly thorny problem: the need for secrecy. On one hand, this kind of litigation—whether challenging the military’s use of Agent Orange in Vietnam, or the practice of putting individuals’ names on a No Fly list, or the Trump Administration’s “Muslim Ban”—raises important public issues and represents a paradigm case for judicial transparency. On the other hand, government defenses rely on state secrets with potentially vast consequences for national security, a situation where transparency can be dangerous.

Traditionally, courts have confronted the secrecy problem in national security litigation in one of two ways. Courts may abstain from hearing national security cases “because adjudication will lead to the dangerous exposure of sensitive national security information or to intractable challenges in reviewing and managing such information.” Alternatively, courts may defer to the executive branch’s judgment on a particular factual or judgment question. Both solutions often stop litigation in its tracks, preventing the court from evaluating cases on their merits.

Shirin Sinnar’s new article identifies a set of cases where courts have moved beyond these initial hurdles and resolved the constitutional merits. To do so, the judges have experimented with several different procedural tools to address the secrecy problem. Sinnar’s rich account of these experiments provides food for thought for procedure scholars. In her narrative, the secrecy problem is Goliath and procedural experimentation is David. While Sinnar is careful not to overstate the prevalence of these experiments, the lesson is that the power of procedure can prevail.

After describing the secrecy problems that can stymie litigation, Sinnar identifies six procedural experiments in national security cases that have not fallen prey to various abstention doctrines. Two are specifically designed for protecting secrets: “conducting ex parte and in camera review of protected information” and “using cleared counsel to access protected information.” The other four are less secrecy-specific: consolidating and transferring cases via MDL; appointing special masters and experts; facilitating interlocutory review; and using judicial management to determine rights and remedies in an incremental and dynamic fashion. Sinnar explores these practices and their ability to “supplement the traditional adversarial process, spur the growth of an institutional architecture to protect secrets, encourage the executive to disclose information voluntarily, reduce cognitive biases, and enable judicial learning over the course of litigation.”

Two of the examples I found most interesting were the use of special masters and of judicial management. As to the first, Sinnar cites two recent cases where judges considered, and rejected, appointing an FRE 706 expert “to assist the judge in determining whether disclosures in discovery would create a reasonable danger of harm to national security.” But she highlights that special masters have succeeded in the past. In a 1987 FOIA case, Judge Oberdorfer appointed a former DOJ intelligence lawyer with top secret security clearance to review documents relating to hostage release efforts that the Department of Defense sought to withhold from the Washington Post. In the Agent Orange litigation, Judge Weinstein appointed a special master to review state secrets assertions. To alleviate the government’s burden of asserting state secret privilege over all the documents, which would require approval by a department head for each document, the special master first ruled on relevance. Sinnar recounts that “the government granted extraordinary access to the special master, who spent weeks in a ‘special guarded room in the Pentagon’ examining tens of thousands of documents prior to the government deciding whether they qualified for state secrets protection.”

This use of special masters is reminiscent of—or perhaps foreshadowed—the prevalence of special masters in modern MDL and other complex litigation, such as the 9/11 Victim Compensation Fund run by Ken Feinberg, or the appointment of then-less-well-known Robert Mueller as the special settlement master in the VW clean diesel litigation. In the secrecy cases and in these more modern examples, special masters devise specialized procedures—sometimes with input from or review by the judge and parties—to enable the litigation to function.

Judicial management, another familiar tool for adapting procedures to suit the needs of particular cases, can use specially designed procedures in a similar way. Sinnar singles out Latif v. Sessions, a constitutional challenge to the terrorist No-Fly watch list, as exemplifying the judicial-management approach. Judge Brown of the District of Oregon originally dismissed the plaintiffs’ complaint. After the Ninth Circuit reinstated the case, she used what Sinnar calls “incremental and dynamic judicial management” to avoid or minimize the secrecy issues. For example, Judge Brown front-loaded certain questions of law that could be decided on a set of stipulated facts, such as whether the process for contesting one’s placement on the list violated procedural due process. She thereby delayed consideration of the substantive due process questions that would require discovery of “potentially sensitive information about individual plaintiffs.” This sequencing allowed the judge to conclude that the process for contesting inclusion on the list was constitutionally insufficient, marking “not only a rare victory for plaintiffs challenging watch lists, but also one of the first watch list challenges to even proceed to a determination on the merits.”

In short, these procedural fixes work—they help litigation perform its functions and allow the parties and judges to get to the merits of national security cases. Sinnar points to five additional benefits. They supplement adversarialism, insofar as methods such as in camera review enable judges to see documents when opposing parties are not allowed access. They “spur the development of architecture to protect secrets.” In other words, the more experience courts and the Justice Department have with providing secret information to courts in secure ways, the better they can develop infrastructure for providing and securing that information. Relatedly, more experience can prompt the Executive to be more receptive to requests to disclose information through secure processes. More experience can counter judges’ natural biases in favor of deferring to the government. And bringing several of these themes together, Sinnar identifies a fifth benefit in promoting judicial learning.

Sinnar also highlights important concerns. Secrecy is an ideal issue to address through bespoke procedures because these national security cases create risks to core rule of law values such as due process, transparency, pluralism, and the avoidance of bias. Sinnar applauds the use of experimental procedures to address secrecy issues, but cautions against using them as “‘off the rack’ solutions for national security cases.” She urges courts to consider whether the procedures satisfy due process and ensure “that their value outweighs their risks” before using them.

As a verdict on these experiments, Sinnar rejects the criticism that they are “too little, too late,” concluding instead that they are “necessary, but insufficient.” It remains true, as Margaret Kwoka documents, that this procedural experimentation is the exception to the general rule of judicial deference in national security cases. Sinnar poses “the real question” as “whether ad hoc judicial experimentation on secrecy can succeed in the absence of more systemic legislative change.” She doubts that such change is likely, a common place at which both scholars and judges land when facing difficult procedural obstacles. It thus seems natural for Sinnar to conclude by offering insights for procedure more generally. In addition to insights about the potential for diffusion of innovative procedures across subject matter and across the civil-criminal divide, these experiments provide evidence of the pervasiveness of “bottom-up” ad hoc procedure “in response to functional needs” of particular litigations. In the national-security context, the executive branch plays an outsized role, triggering different institutional dynamics. But particularly in the absence of systemic procedural change, Sinnar predicts judges will continue to experiment with ad hoc procedure in the national security context.

Interestingly, Sinnar argues that the scope and capacity of judicial discretion to address these issues are unclear. The Supreme Court has reached conflicting results when reviewing judicial capacity to devise procedural solutions in this space. In Boumediene v. Bush, a Guantanamo detainee habeas case in 2008, “the Court expressed confidence that the district court had the ‘expertise and competence’ to resolve evidentiary challenges, including the protection of classified intelligence.” But one year later in Ashcroft v. Iqbal, “the Court was equally sure that, without an across-the-board change to pleading standards, district courts could not be relied upon to regulate discovery in a manner that sufficiently respected the needs of high-level national security officials.”

This framing shows the important contribution of Sinnar’s work. National security expert Rebecca Ingber argues that “it’s important to pull away the veil of mystery draped over national security law” that courts often hide behind in these cases. Sinnar is uniquely positioned to help judges overcome their biases against delving into national security issues and to help national security experts understand procedural tools that can lift the veil. She can address both perspectives because she speaks both languages—national security and procedure—so fluently. Her work therefore facilitates both further conversations across these disciplines and a richer understanding of both fields.

This article is an excellent example of the important genre of procedural scholarship that focuses on the procedure of particular substantive areas, supporting the thesis that even trans-substantive procedure is not trans-substantive and simultaneously providing interesting insights for procedure more broadly (dare I say, trans-substantively).  Other recent complements include Jessica Erickson’s Heightened Procedure and Maria Glover’s The Supreme Court’s ‘Non‐Transsubstantive’ Class Action. Anyone interested in procedure, procedural innovation, or trans-substantivity—not to mention procedural issues in national security litigation—should read Sinnar’s article in full.

Cite as: Pamela Bookman, Procedural Innovations to Address the Secrecy Problem in National Security Litigation, JOTWELL (January 16, 2019) (reviewing Shirin Sinnar, Procedural Experimentation and National Security in the Courts, 106 Cal. L. Rev. 991 (2018)),

Practice Makes Perfect

Approximately four years ago, the Federal Advisory Committee on Civil Rules established a subcommittee to reform Federal Rule of Civil Procedure 23, the class action rule. The subcommittee engaged in a meticulous review of various class action practices, focusing on such controversial issues as cy pres awards, bad faith objectors, and class action settlements. The subcommittee’s work resulted in the Advisory Committee adopting a package of amendments to Rule 23, which went into effect on December 1, 2018. A good overview of the amendments can be found here.

Anticipating passage of these amendments, the Bolch Judicial Institute at Duke Law School assembled an all-star team of class action practitioners and experts to draft a compilation of “guidelines and best practices.” Because the amendments “codify emerging or best practices of courts,” the goal of the publication is to “add detail to the general guidance provided in the amended rule.” The publication has all the attributes of a great resource—it is concise while remaining crystal clear.

But what I find remarkable about the publication is how its focus on the on-the-ground experience of administering class actions sheds light the thorniest issues in class action law. Take standing, an issue the Supreme Court focused this Term in Frank v. Gaos. In 2016, the Court decided Spokeo v. Robins, concluding that to establish standing, a class representative must allege a harm that is both concrete and particularized. There is some question whether standing must be established for all class members, not just the class representative. Tyson Foods, Inc. v. Bouaphakeo addressed but did not decide whether standing can exist when there is the prospect that “uninjured” class members may recover.

This publication does not address this issue directly, nor does it intend to, but it does discuss some aspects of the actual administration of class actions that bear on the issue. For example, it states that, with respect to information concerning the distribution of proceeds from a settlement, “a court should not assume that automatically distributing benefits to all class members is superior to distributing benefits based on submitted claims.” (Best Practice 3C). It makes the reasonable point that in some class actions, such as those involving consumer claims, a submitted-claims process can be invaluable in identifying individuals who have suffered actual harm by requiring, for example, proof of purchase to recover. This suggests that in many cases issues of class member standing can be obviated on the back end by processes ensuring that uninjured class members cannot recover. In Tyson, the Court hinted that such a back-end process can satisfy these standing issues. The Court admonished the Tyson defendants for opposing a “bifurcation” process that would have permitted the district court to determine liability in one phase and individual class members to submit claims for damages in a second phase.

Another thorny issue concerns class attorney compensation, where there is a concern that class attorneys profit at the expense of class members who receive little to nothing from the lawsuit. The publication speaks to this issue (again, not intentionally or directly) through the debate over whether the attorney’s fee in a class action settlement should be based on the percentage of the total monetary awards made available to the class or the money “actually delivered” to class members. The notes to the 2018 amendments emphasize the latter, stating that “the relief actually delivered to the class can be a significant factor in determining the appropriate fee award.” At first glance this make sense—why should an attorney be paid if the class members are not also actually paid?

But the publication makes an important point about the actual operation of class actions that informs the “actual value” the class members receive. In a sense, class actions arise because class members do not want to be paid, or at least do not want to go to the trouble of filing a lawsuit to recover. A class action goes to that trouble. In investigating and settling the case, class attorneys make proceeds available that otherwise would not be available through efforts of class members who otherwise would not have sued. The publication cites cases to argue that “the opportunity to recover meaningful relief by availing themselves of a claims process that is procedurally fair, even though many fail to do so, is ‘actual value’ to the class members.”

The publication also tackles appointment of “interim class counsel” in multidistrict litigation (MDL). Although this concept was introduced in 2003 amendments to Rule 23, the publication discusses the importance of this designation and its effect on current practice. Interim class counsel corrects a “Catch 22” situation that has arisen from heightening class certification requirements, itself a response to courts’ unease with the near-unilateral control of the class attorney. Class certification is now “often preceded by substantial fact and expert discovery,” which requires “time and resources to develop a record in the case sufficient to enable the court to make an informed class certification decision.” The availability of interim class counsel allows for the appointment of counsel with the power and incentive to perform this work for the benefit of the class.

The publication also addresses this practice in MDLs. In theory, MDLs avoid the unease that arises from counsel control by consolidating claims, because each plaintiff retains her own counsel. But class actions can arise within MDLs. And there remains great benefit in having “lead counsel” coordinate the efforts of the individual plaintiffs, even if each retains separate counsel. “Class actions and MDL have converged in recent years,” with “MDL transferee judges, who must appoint plaintiff leadership at the outset of the proceedings, . . . often adopt[ing] the Rule 23(g) factors as qualifications in such leadership roles.” The publication discusses guidelines and best practices for interim class counsel within MDLs. And it  (again unintentionally) makes an important point about not only the persistence of the class action, but its utility. The very power of class counsel that makes courts uneasy is the same power that allows for the investment and coordination necessary to litigate the plaintiffs’ claims in the first place.

There are many more gems in the publication, too many to discuss here. This is a perfect example of the kind of work I like “lots”—it looks at on-the-ground practice with a sensitivity to finding solutions. That it also speaks to important class action issues shows the importance of paying attention to the great work being done by courts and practitioners.

Cite as: Sergio J. Campos, Practice Makes Perfect, JOTWELL (December 20, 2018) (reviewing Bolch Judicial Institute, Duke Law School, Guidelines and Best Practices Implementing 2018 Amendments to Rule 23 Class Action (2018)),

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),