Adequacy and the Attorney General

May 1, 2013 Jay Tidmarsh1 comment

Jay Tidmarsh

Maggie Lemos’s valuable article tackles one of the hot issues in aggregate litigation: a government (typically acting through its attorney general) using parens patriae suits to vindicate the rights of its citizens.  As I described in my last Jotwell post, access to justice in a mass society is the central civil-justice issue of our day.  Individual litigation of mass-injury claims is a luxury that neither litigants nor the court system can typically afford.  Class actions are shriveling as a realistic alternative in many instances.  Non-class aggregate litigation is infected with its own problems, as the ALI’s recent Principles of the Law of Aggregation shows.  And contracts of adhesion increasingly shunt victims into individual arbitration processes that provide little realistic opportunity for relief — and no opportunity for judicial resolution.

Into this harsh landscape enters the parens patriae action, which has emerged as the newest academic darling with the potential to provide victims of mass injury a measure of justice.  In these actions, the attorney general sues on behalf of those citizens allegedly injured by the defendants’ conduct.  Such a suit ensures a measure of deterrence.  If the recovery occurs and the attorney general establishes a fund against which injured citizens can claim, the suit also results in a modicum of compensation.  Because the suits are controlled by a public official, they also (in theory) come closer to achieving the optimal level of regulatory response, while avoiding the large fees, blackmail settlements, and other agency costs that so often give class-action and other aggregate litigation a bad name.

Sounds great, right?  Not so fast.  Turning the critiques of other forms of aggregate litigation around on parens patriae litigation, Lemos shows that the picture is not as rosy as it seems.  With a strong command of the class-action and aggregate-litigation literature, she explores the various agency costs traditionally associated with private mass litigation, and then demonstrates that these problems (conflicts of interest, lack of client monitoring and control, asymmetric stakes and resources, and inadequate settlements) also infect cases brought by attorneys general.  Attorneys general have their own political interests in prosecuting the claims; their offices are often underfunded; the citizens have little realistic control over litigation decisions; and inadequate settlements can therefore be expected.

Given the risk of imperfect representation, Lemos connects parens patriae litigation brought by attorneys general and class actions brought by class representatives.  In particular, she argues that a parens patriae suit should have preclusive effect only when the attorney general is an adequate representative of her citizens.  With Hansberry v. Lee and its progeny, the Supreme Court established adequate representation as the constitutional floor required to accord preclusive effect in class actions.  By analogy, Lemos argues that giving preclusive effect to a parens patriae judgment or settlement is unconstitutional unless the attorney general meets the same due-process minimum.  This fairly unassailable logic leads to one of two conclusions: either a class-action-style guarantee of adequate representation must be imported into the law of parens patriae litigation, or citizens must be free to pursue private litigation (whether individual, class-wide, or aggregate) without being bound by the result achieved by the attorney general on their behalf.

Lemos prefers the latter solution because it better accommodates the government’s interest in suing to vindicate regulatory and political objectives with victims’ distinct interests in pressing their own claims.  She recognizes that this solution is not ideal, in part because it exposes defendants to “double dip” liability should they first pay some money to the attorney general and then pay more to the victims.  But, as she notes correctly, double dipping is unlikely to be a significant problem for many of the small-stakes cases in which parens patriae actions are filed. And in any event, the court can avoid the issue by finding (in appropriate cases) that the attorney general is an adequate representative, and then allowing citizens who are disappointed with a proposed parens patriae settlement to opt out of the case.

For anyone wishing to engage the issues fully, Deborah Hensler’s short online response also merits close reading. Hensler points out that “[u]sing private litigation to achieve public policy goals raises a fundamental question about the proper balance between public and private law in democratic societies.”  She raises the importance of empirical data and case studies, with which Lemos’s more theoretical piece does not engage, in evaluating both proposals to change parens patriae practice and claims about the adequacy of an attorney general’s representation.  And Hensler suggests that any critique of the present state of parens patriae actions should account for the bleak reality that no method of delivering justice to large numbers of relatively powerless victims — whether a class action, a traditional parens patriae action, or a parens patriae action reformed along the lines that Lemos suggests — is, in the immortal words of Goldilocks, “just right.”  We must still do the best we can to cobble together some combination of concededly imperfect mechanisms to keep the metaphorical bears in check.

Lemos is correct to critique state and lower federal court decisions suggesting that parens patriae actions can bar separate claims by citizens without regard to the quality of the attorney general’s representation.  That case law must be crazy.  Anyone who has read the line of cases from Hansberry through Martin v. Wilks, to Taylor v. Sturgell, knows that no court today could so hold and get away with it.  Parens patriae actions do not have a binding effect on citizens whose attorney general does not adequately represent them.  End of story.  Because these parens patriae actions lack binding effect, attorneys general are not agents of their citizens.  Therefore, Lemos’s concern about the agency costs of parens patriae actions in which representation is inadequate strikes me as misplaced.

The real concern is double dipping.  Because a parens patriae suit in which the representation is inadequate does not bind citizens in subsequent litigation, a defendant might in theory end up paying both the government and the victims for the same harm.  That problem is not unique to parens patriae litigation; it also arises in other situations.  For instance, a class member who fails to receive adequate compensation in one forum may bring suit in a foreign forum.  To the extent that double dipping is an observed phenomenon (and here Hensler’s call for empirical evidence is especially salient), it is far more controllable in the domestic than in the transnational context: parens patriae and private suits can be consolidated, or the amounts paid to a claimant in the parens patriae suit can be deducted from that claimant’s award in the private litigation.  That said, crafting simple and workable solutions to prevent double dipping is a challenge that merits attention as we cobble together a mélange of imperfect responses to mass injury.

A deeper question is the meaning of “adequacy of representation” in the parens patriae context.  If individual litigation is a fond luxury, especially in small-claim consumer cases that have been the traditional grist for the parens patriae mill, we need to accept the reality that the delivery of justice to victims of mass injury inevitably requires some class-action, aggregate, or representative process(es).  (The only alternative, as Hensler aptly puts it, is to “leave the marketplace to the bears.”)  In assembling individual claims into a larger group, however, conflicts among individuals in the group are inevitable.  Hansberry famously held that a class representative could not adequately represent class members whose interests were in conflict.  That “conflict of interest” trope has dominated our discussion of inadequate representation ever since.  It’s time to change our thinking.  We cannot simultaneously maintain both a “conflict of interest” view of inadequate representation and a belief that a class-wide or representative process can ever bind absent plaintiffs.  Something has to give.  If we care about the delivery of justice to victims whose economic reality is the impossibility of individual suit, we must come to a different understanding of adequate representation.

In parens patriae suits, therefore, the important question is not whether we can tolerate conflicts between the attorney general and the represented citizens, but how great the disparity in interest must be before the parens patriae suit loses its preclusive effect.  The answer to that question is complicated, dependent in part on the other realistic options that victims have for enforcing their rights.  Admitting that there are significant agency costs when attorneys general represent citizens is the starting point of the analysis, not the conclusion.  Due process is often sensitive to context, and sometimes even a quarter of a loaf is better than none.

Fixing Personal Jurisdiction

Apr 15, 2013 Linda S. Mullenix

Linda S. Mullenix

Who among us has not relished the extraordinary gift the Supreme Court gave to civil procedure teachers in the form of J. McIntyre Machinery, Ltd. v. Nicastro, allowing professors to punctuate the already absurd personal jurisdiction case line with the story of the unlucky Mr. Nicastro (he who lost four fingers to a metal shearing machine in New Jersey), with nary a place to sue? (And, no doubt reserving that one remaining finger for . . . personal jurisdiction jurisprudence.) Moreover, to ensure us a near-perfect teaching vehicle, the Court — as Professor Stephen E. Sachs notes in the wonderfully entertaining and thought-provoking How Congress Should Fix Personal Jurisdiction — “bogged down in an incoherent three-way split.”

Rather than make a futile attempt to make sense out of McIntyre, or to rationalize the mess away, Professor Sachs whole-heartedly forges into the personal jurisdiction thicket (which he labels a “dismal swamp”) with his own solution. Actually, an entire array of solutions. Sachs takes up McIntyre’s invitation to Congress to provide a federal forum for cases like Nicastro’s, and he sets forth a detailed federal statutory scheme for authorizing a federal forum based on existing venue rules. In particular, he is keen on securing federal forums to enable plaintiffs such as Nicastro to sue multinational corporations, such as McIntyre, that might otherwise evade responsibility for injuries to U.S. citizens because of existing state personal jurisdiction doctrine. Sachs notes that his proposal to create federal personal jurisdiction based on a venue model is not new, but suggests that other such attempts have been flawed in key respects (which he aims to rectify).

Sachs begins by arguing that those who would reform personal jurisdiction with an expedient doctrine have been looking in the wrong place (the Due Process Clause). Rather, the most plausible rules must be the product of legislative choice. As a threshold matter, Sachs boldly suggests that the solution to the personal jurisdiction mess begins with re-conceptualizing the problem as a question of not where a defendant is subject to suit, but who may hear it: who will determine the parties’ rights and liabilities and set the rules that govern the dispute.

Sachs’s paper endorses a system of nationwide federal personal jurisdiction that effectively erases state lines. Pursuant to his proposed statutory scheme, a district court could exert personal jurisdiction over a defendant so long as there were adequate contacts between the defendant and the United States as a whole. The location of the courthouse (which he claims is irrelevant for constitutional purposes) can be determined through familiar venue considerations of fairness to the parties and the witnesses. Applying these concepts, he offers examples of how his scheme would work and suggests how Nicastro could have pursued McIntyre under his rules.

After setting forth the justifications for his proposed new personal jurisdiction rules ― exploring why a federal forum makes sense ― Sachs acknowledges that creating new personal jurisdiction rules modeled on the venue statutes involves a more complicated problem. (“Of course,” he notes, “the answer isn’t that simple.”). He recognizes that federal litigation, “[i]f not a seamless web,” is “at least a giant tangle, in which pulling on one thread unravels other parts of the system.” And so, as soon as Professor Sachs has pulled at his initial venue thread, his entire federal jurisdictional skein begins to unravel (delightfully so). He tackles, among other problems and considerations, the implications of his proposal for Due Process (would it be constitutional?); the Erie doctrine (consistency between federal and state courts); and common sense (a refreshing and novel approach from an academic). Having canvassed large-scale issues and possible alternative solutions, Sachs returns to his own venue-based proposal, suggesting that getting federal courts out of the doctrinal mess of state court personal jurisdiction requires “thoroughgoing and careful revisions to the U.S. Code.”

It is at this point that Sachs’s paper becomes a veritable procedural tour de force. Beginning with his proposed nationwide personal jurisdiction concepts, Sachs suggests the need for changes to or creation of ― among many issues ― venue transfer rules, removal jurisdiction, the Van Dusen and Ferens rules on applicable law, appellate rules governing transfer denials, sanctions rules for unreasonable forum selection, and default rules for non-appearing defendants. For each of these inter-related procedural issues, Sachs proposes a statutory solution. This whirlwind tour through Title 28 of the U.S. Code and related doctrines is riveting in an “Oh-my-gosh” sort of way. And, toward the end, Sachs makes an obligatory nod to the Rules Enabling Act and potential rulemaking issues raised by his proposals.

Sachs’s article is entirely engaging because of the scope and sheer audacity of its recommendations. The paper is thought-provoking and provides a good vehicle for debate after studying McIntyre and the personal jurisdiction case line. Sachs’s writing style is delightful. He knows he has chewed off a very large mouthful, but he is humble and self-deprecating in the effort. No pomposity here. Sachs’s article is a work-in-progress in the finest tradition of rule reform, and it is entertaining to witness a young scholar become enmeshed in a knotty mess of inter-connected problems, once he has pulled a doctrinal thread and his holiday sweater unravels.

Seeking Accuracy in Aggregate Litigation

Mar 13, 2013 Allan Erbsen

Allan Erbsen

Courts and markets perceive mass tort victims from distinct perspectives that complicate aggregate litigation.  Before mass torts cause injuries, prospective victims often are fungible variables in an actuarial model.  Actors can foresee the possibility of negligence and identify groups who they might harm without knowing which specific members will incur losses.  For example, airlines know that planes may crash and pharmaceutical manufacturers know that drugs may cause adverse affects.  Yet even if the risks are known, injuries can occur at unpredictable times to unpredictable subsets of a risk-bearing population.  Even actors who intentionally violate the law by making fraudulent claims or adopting discriminatory policies often target demographics rather than individuals.  The anticipated victims are faceless statistics in a crowd.

But after tortious conduct causes injuries that generate litigation, victims generally have known identities.  Current rules governing civil adjudication enable defendants to both ignore and exploit these individual identities when proposing procedures for resolving plaintiffs’ claims.  A defendant that desires a global settlement (or global dismissal) can continue to view victims as an undifferentiated mass by making offers or arguments that are applicable to the entire group.  If these efforts fail, defendants often challenge further aggregate approaches to dispute resolution by contending that each alleged victim is a unique individual with a unique claim requiring its own day in court.  When judges accept these arguments, victims of wholesale injury become the potentially unwitting recipients of retail justice.  This claim-by-claim adjudication consumes scarce judicial resources, burdens litigants, and can produce inconsistent judgments in similar cases.

Several scholars have proposed to overcome traditional adjudication’s inefficiencies by allowing courts to treat post-conduct claimants the same way defendants treated pre-conduct potential victims: as a group—or collection of subgroups—rather than as distinct individuals.  Claim-by-claim assessments of liability, causation, and damages would yield to broadly applicable judgments based on statistical sampling.  For example, a court confronting 1000 similar claims for damages might select 10 for trial, average the results, and then extrapolate that average to the remaining 900 plaintiffs.  Taken to an extreme, this approach could permit an aggregated mass of plaintiffs to extract a lump-sum payment from the defendant that the court would then allocate among individual claimants.  The exaction would vindicate tort law’s goal of deterrence, while the distribution would support the law’s goals of compensation and equal treatment of similar claims.

Critics of sampling challenge its potential benefits by focusing on the rights of unconsenting litigants, the functional capabilities of courts, and formal constraints on adjudication.  One practical critique has been especially salient.  Even if aggregate treatment of discrete claims is theoretically defensible, particular procedures might generate inaccurate judgments that over- or under-deter and over- or under-compensate.  The aggregate value of all valid claims in a group is the sum of each valid claim.  Opponents of sampling fear that relying on generalizations from statistics instead of adjudicating each claim individually may produce an inaccurate sum.

Edward Cheng’s short, thought-provoking article on trial sampling addresses concerns about accuracy by rethinking the relationship between sample size and litigation outcomes.  The article begins by acknowledging a theoretical problem that confronts any effort to use accuracy as a criterion for evaluating litigation procedures.  Accuracy is a goal that most procedural architects embrace in the abstract, but that is difficult to define.  The concept of accuracy in tort adjudication is especially slippery because critical findings are subjective or indeterminate: liability might depend on an assessment of reasonableness, causation might hinge on an inquiry into probabilities, and damages might require quantification of non-monetary harms.  If these findings are not objective, it is difficult to contend that a given procedure for reaching them is inaccurate.  However, Cheng contends that when comparing procedures, one can assume that both are trying to “estimate” the same “abstract value.”  If traditional claim-by-claim analysis is the conventional gold standard for adjudication, then one can assess the accuracy of sampling by replicating the assumptions that courts make when assessing individual claims.  This approach might conclude that sampling is relatively accurate compared to accepted alternatives without needing to consider whether it is objectively accurate.

Cheng argues that conventional wisdom presumes that claim-by-claim adjudication must be relatively more accurate than sampling.  The intuition is that adjudicating an individual claim ensures accurate results for that claim, so adjudicating each claim within a group ensures accurate results for all claims.  In contrast, resolving every claim based on data about only a few requires extrapolations that invite errors.

He then challenges conventional wisdom by making three observations.  First, he posits that trials of individual claims are not as accurate as commentators believe because of “variability.”  Individual trial outcomes are partly a function of jury dynamics and lawyer behavior that varies from case to case and distorts outcomes.  In contrast, a sample of several cases can smooth out variability, leading to an average outcome that may better approximate the “accurate” result to which claim-by-claim adjudication aspires.

Second, he argues that when a jury considers only a single claim it lacks a frame of reference for calculating the claim’s value.  Judgments from a large number of juries therefore may include outliers that are unmoored to a plausible sense of what claims should be worth.  In contrast, if a single jury receives a sample of several cases, it can “calibrate” its assessment of each to the others.  This calibration in theory could pull potential outlier cases toward a more accurate baseline.

Finally, Cheng contends that the adversarial system promotes accuracy by encouraging non-random sampling of “extreme” cases selected by each party.  Assuming a normal distribution, the parties’ self-interested selection of cases on each tail of the curve enables the court to quickly find the mean with only a limited sample.  The combined implication of Cheng’s three observations is that trying a small number of claims for a modest cost can produce a more accurate result for all plaintiffs than trying every claim at a huge cost.

Caveats abound, which Cheng is careful to note.  His theoretical predictions hold only in “the right conditions.”  In particular, excessive heterogeneity or an asymmetrical distribution among the plaintiffs could introduce sampling errors that reduce accuracy.  The article therefore acknowledges that more work must be done to develop criteria for identifying classes of cases where sampling would be more accurate in the aggregate than trying every claim.  (Empirical analysis or controlled experiments might also help determine if juries actually behave as theory predicts.)  Moreover, the article notes that even if sampling produces accurate aggregate results, regressing to a mean rewards individual plaintiffs whose claims are relatively strong or prejudices individual plaintiffs whose claims are relatively weak.  These distributional concerns raise normative questions about whether an accurate sum justifies distortion of its component parts.

Given the caveats, the value of Cheng’s article lies in how its analysis of counter-intuitive assumptions can reshape debates about the optimal approach to resolving clusters of similar claims.  By suggesting that non-traditional procedures can enhance accuracy in certain scenarios, Cheng challenges an important defense of the prevailing claim-by-claim approach to adjudicating mass torts.  This defense resonates in contemporary discussions of civil procedure and helps to explain the Supreme Court’s recent acerbic rejection of “Trial by Formula” in Wal-Mart Stores, Inc. v. Dukes.

Formulas are easy targets for judicial scorn if they produce inaccurate results.  But if Cheng is correct that sampling is more accurate than traditional adjudication in some circumstances, then commentators must confront two difficult questions when such circumstances arise.  First, what would be the justification for preferring a system of claim-by-claim adjudication that spends more money than sampling to achieve less aggregate accuracy with more random variability?  Second, if current inefficient procedures are necessary to faithfully accommodate the demands of substantive tort law, should the law governing mass torts shift its focus from individual plaintiffs to groups of victims?  Both questions have many plausible answers that are beyond the scope of Cheng’s article.  But by challenging conventional wisdom, the article helps sharpen the questions, refine the discussion, and suggest lines of inquiry about how to enhance accuracy in litigation.

Building the Federal Judiciary

Feb 11, 2013 Kevin C. Walsh

Kevin C. Walsh

Scholars working within the field of “Federal Courts” have, from the beginning, been concerned about the past and future of the federal courts as instruments of government. But the beginning of Federal Courts as a field was in the early 1950s, several decades after the Judiciary Act of 1891 created the intermediate circuit courts of appeals and almost three decades after the Judiciary Act of 1925 reconfigured the relationship between the Supreme Court and all other courts in the United States deciding questions of federal law. And the trajectory that the federal judiciary has traveled since that time has been relatively consistent. To the extent that this may have resulted in a failure to appreciate the forces that had already made the federal courts so powerful by the time Federal Courts came into its own, Justin Crowe’s recent book Building the Judiciary offers a helpful corrective.

Building the Judiciary seeks to answer questions about the puzzle of judicial institution building: “How did the federal judiciary in general, and the Supreme Court in particular, transcend its early limitations and become a powerful institution of American governance? How, in other words, did we move from a Court of political irrelevance to one of political centrality?” (P. 2) The book provides a “holistic historical narrative” that focuses on “‘architectonic’ politics: the politics of actors seeking to shape the structures of government in order to further their own interests.”(P. 6.) Crowe contrasts this focus with the “emphasis on judicial prerogative” that he attributes to a “prevailing but problematic ethos of judicial exceptionalism.” (P. 3.) The result of this ethos, Crowe contends, has been the neglect of important questions: “In seeking to understand how judges rule, we have largely neglected the conditions that have made it possible for judges to rule; in emphasizing how the judiciary acts upon politics, we have minimized the ways in which it is equally acted upon by politics.”(P. 5.)

Crowe’s examination of the federal judiciary as a product of architectonic politics focuses on “judicial institution building”: “the creation, consolidation, expansion, or reduction of the structural and institutional capacities needed to respond to and intervene in the political environment.” (P. 8.) The guts of the book are six chapters offering a “developmental account of judicial power” that “embeds case studies of a series of transformative moments within a more deeply contextual understanding of the process in the historical period under consideration.” (P. 15.) Opening and concluding chapters in which Crowe develops his approach and his broader conclusions provide structure and refinement.

Although the historical narrative is necessarily punctuated given how the federal judiciary has actually developed, Crowe provides a unitary framework for historical-institutional analysis that ensures his account is not simply a collection of unrelated episodes. For each period, Crowe asks three questions: Why was judicial institution building pursued? How was it accomplished? And what “concrete and enduring changes in the exercise of judicial power” resulted? (P. 10.) Crowe also identifies three goals that, alone or in combination, structured choices about institutional design in this process: policy (“satisfying substantive regime commitments”); politics (“consolidating partisan strength and preserving electoral support”); and performance (“maintaining a functionally efficient judicial branch”). (Pp. 10-11.) By asking the same set of questions and grouping the reasons for institution building with his three “P”s, Crowe is able to explain many aspects of a single “overriding purpose” for judicial institutional building over time: “to use the judiciary to further some end that would otherwise be difficult or impossible to achieve.” (P. 11.)

Crowe’s treatment of judicial institution building in the period of Jeffersonian and Jacksonian Democracy (1805-50) illustrates the types of insights that his focus on architectonic politics yields. He explains how performance concerns (driven largely by Westerners shut out of the circuit system) interacted with political concerns (stemming from the linkage between the creation of new circuits and the establishment of new Supreme Court seats) and with policy concerns (arising out of the nationalist tilt of Supreme Court rulings in the first few decades of this period) to shape reform efforts. These forces first blocked and then led to judicial institution building in the Judiciary Act of 1837, which in turn provided “the foundation for Southern slaveholding dominance of the Supreme Court” heading into the 1840s and ‘50s. (P. 130.)

Crowe deftly highlights the significance of this institution building by juxtaposing judicial decisions like Martin v. Hunter’s Lessee (in 1816) and Cohens v. Virginia (in 1821) with the political decisions of interest to students of architectonic politics. Crowe argues that these judicial decisions are comparatively less important than commonly thought. Although Martin and Cohens aligned the judiciary with nationalists, they “occurred within the prevailing stream of congressional action—perhaps doing little more than providing a judicial voice for a legislative enactment.” (P. 95.) And from the perspective of judicial institution building, attention to the limited reach of these decisions reveals what the federal judiciary could not do not its own, namely “convert the judiciary into an institution that could effectively administer justice in a growing nation.” (Id.) This inability of the federal judiciary to expand itself and to provide for the administration of justice in new states, Crowe argues, is just one example of the institutional judiciary’s dependence on Congress. More generally: “whether the first branch chooses to address the third branch or neglect it—and, perhaps more important, precisely how it chooses to address it or neglect it—determines, in large part, the shape and extent of judicial power.” (P. 131.)

The book’s periodization of the six historical chapters reveals just how much judicial institution building had already taken place by the time that Federal Courts appears on the scholarly scene. Crowe identifies six historic periods: Establishment (The Early Republic, 1789-1805), Reorganization (Jeffersonian and Jacksonian Democracy, 1805-50), Empowerment (The Civil War and Reconstruction, 1850-1877), Restructuring (The Gilded Age and the Progressive Era, 1877-1913), Bureaucratization (The Interwar and New Deal Years, 1913-1939), and Specialization (Modern America, 1939-2000). In comparison with the institutional developments that took place in the prior five periods, the developments of judicial institutions during the last period were more refining than transformative. (P. 269.)

While refinements during this last period are consistent with Crowe’s assessment of the relationship between the judiciary and politics in earlier periods, the transformations in those earlier periods provide the most support for the claims he develops in his final chapter. Those transformations reveal continual expansion of the power of the federal judiciary “because of, rather than in spite of political action.” (P. 273.)

The final chapter begins with a reflection on popular and scholarly reactions to President Obama’s castigation of the Supreme Court during the 2010 State of the Union Address for its Citizens United decision and to Justice Alito’s small but unmistakable expression of disagreement. Crowe argues that seemingly divergent reactions—a popular reaction concerned with over-politicization and a scholarly reaction viewing this as just another conflict in a long line—share the common, mistaken presumption “that judicial power is separate from and outside the realm of democratic politics.” (P. 271). According to Crowe, the history of judicial institution building tells a different story, “one that locates the judicial branch squarely within the political arena but also places substantially greater emphasis on its cooperation rather than conflict with those in that arena, most notably federal elected officials.” (P. 272.)

The story that emerges from Crowe’s study of judicial institution building, he argues, “casts doubt on the simplistic and essentially conflictual models of interbranch relations proffered in much extant scholarly literature about judicial politics.” (P. 274.) As a consequence, “the empirical foundations upon which much normative theorizing—both scholarly and popular—about judicial power is based are at best incomplete and at worst outright incorrect.” (P. 277.) Rather than “emphasizing concepts such as Court-curbing and strategic retreats” (P. 275.) , scholars of judicial politics and related fields should pay more attention to phenomena like court creation and jurisdictional expansion. These are strong claims. But their foundational observations about the relationship between the judiciary and democratic politics are supported by the history of institution building that Crowe traces in Building the Judiciary.

Crowe is careful throughout not to adopt a “Whiggish assumption of progress between past and present.” (Pp. 8-9, n.32) Yet the story that he tells, it turns out, is one in which “the trajectory of judicial power in America has been consistently and undeniably upward.” (Id.) Less clear, however, is whether that trajectory can, or ought to, continue. Crowe argues that “the centering of judicial power in a political world should be seen as normatively balanced in a manner that is democratically empowering.” (P. 278.) But he also recognizes that “politicians may lack either or both the will and incentive to restrict judicial power.” (P. 278, n.12.) And he acknowledges that, when the need for changes in the relative independence or accountability of federal courts comes to the fore, “the forces of path dependence may make such changes difficult and thereby lessen the ability of the citizenry to control (or, at the very least, influence) the extent of judicial power in any meaningful sense . . . .” (P. 278 n.13.)

These acknowledgments suggest a stronger cautionary note than the book offers. Crowe appropriately disclaims the argument that “the judicial power is unproblematic because judges are accountable to citizen preferences or responsive to changes in the political climate in any meaningful sense.” (P. 279.) (He says that may or may not be true; it is just not his concern in the book. (Id.)) But he does argue that if “Americans . . . do view increased judicial power as problematic, . . . then we have no one to blame but our elected officials.” (Id.)

Crowe is right—and importantly so—to insist that we point the finger at our elected officials, and ultimately at ourselves (for we are responsible for them). But that does not mean we should let the judges themselves off the hook. One can agree with Crowe that “judicial exceptionalism” is a problem in evaluating judicial power, but still insist on condemning judicial overreach in the exercise of that power—whatever the power’s pedigree in considerations of performance, policy, or politics.

Economic Analysis of Personal Jurisdiction

Jan 21, 2013 Alexandra D. LahavAdd a Comment

Alexandra D. Lahav

Here is a practical problem: Where should a person who was harmed by a product be able to sue the manufacturer of that product?

Here is a complex judicial answer to that problem: Combine ½ cup state sovereignty and ½ cup due process, cook on low simmer and stir with circular reasoning, adding three or four new factors every twenty years. After ingesting this concoction you might feel a bit ill, as did one civil procedure student who wrote on an exam: “personal jurisdiction is a pain in the _____” (original language omitted). Felix Cohen said it more eloquently when he described the kind of reasoning that still passes for personal jurisdiction doctrine as “transcendental nonsense,” but the student’s reaction is more direct.

Daniel Klerman’s new article, Personal Jurisdiction and Product Liability, is a welcome antidote to the combination of creeping transcendentalism in the Case of the Giant Shears (the Supreme Court’s most recent personal jurisdiction case, more commonly known as J. McIntyre v. Nicastro), and the proliferation of factors that characterizes personal jurisdiction doctrine today. Personal jurisdiction is an area of law for which economic analysis especially well-suited because of the policy implications entailed. As hard as it is to imagine, Klerman’s is the first article to apply economic analysis to personal jurisdiction doctrine. I am glad he was the one to do it.

At the start of the piece, Klerman points out that previous work on where a manufacturer should be sued approached the problem ex post. The contribution of much of the law-and-economics literature, however, is to take an ex ante approach to analyzing problems of this type. This is Klerman’s main contribution, and it is masterfully done. He first analyzes the question based on an assumption of low transactions costs, and then loosens this assumption to address the high transactions costs that more accurately reflect lived reality.

The bottom line is that it is extremely unlikely that consumers will take the time to figure out the likely forum and applicable law at the time they purchase a product. As a result, if personal jurisdiction is based on where manufacturers choose to locate their activities, manufacturers will have incentives to make locational decisions that select procedural and substantive law that favors them, as well as forums that are convenient for defendants but inconvenient for plaintiffs. Laws allowing consumers to sue only in the distributor’s state will lead manufacturers to hire distributors in states with the most pro-manufacturer “product liability laws and procedures, and, as a result, [manufacturers] would have insufficient incentives to design and manufacture safe products.” Rules favoring jurisdiction in the manufacturer’s home state or in the state of design or manufacture of the product are likely to produce similar results, as manufacturers either move or influence the laws where they already are.

Klerman argues that the most efficient rule allows suit where the product is sold to the consumer. He recognizes this rule might lead to a slight pro-plaintiff bias, but argues that this bias can be mitigated by defendant’s price adjustments and is the most likely to lead to optimal product liability laws.

In reaching this conclusion, Klerman examines a number of underlying questions, including whether manufacturers would be responsive to these rules and adjust their prices accordingly, how manufacturers could deal with the problem of cross-jurisdictional arbitrage, and the effect of manufacturers producing products for national or international markets, not individual states. To each of these concerns he provides a sustained analysis and a persuasive answer. For example, he argues that a rule requiring foreign manufacturers to submit to jurisdiction in any state in which their products are sold will prevent them from insulating themselves against liability by choosing distributors in states with sub-optimal product liability laws and discourage domestic manufacturers from relocating in order to avoid liability. He notes that cross-jurisdictional arbitrage is unlikely to be a problem because most people outside the northeast are unlikely to travel to a different state in order to purchase a product and because price differentials are likely to be small. If this is a problem, he suggests a rule permitting jurisdiction in the place where the plaintiff resided at the time of purchase. Finally, he argues that states are unlikely to take advantage of product standardization to eliminate product liability altogether (ultimately leading to national under-regulation) because manufacturers will not reduce prices so much to make this tactic worthwhile for citizens.

Even if you do not ultimately agree with Klerman’s underlying supposition that product liability laws are useful and necessary to regulate product safety (he builds on the work of others), his economic analysis of personal jurisdiction is important because it lays the foundation for healing the doctrine. As he writes at the end of the piece, his mode of analysis is novel because “[i]nstead of focusing on defendants’ contacts or intentions, it focuses on real world consequences.” That focus may be just the cure for a personal jurisdiction doctrine suffering from a mixture of legal fictions, formalism, and factoritis.

Considering the Civil Jury

Jan 7, 2013 Suja A. Thomas

Suja A. Thomas

The civil jury is in this year.  In The Political Puzzle of the Civil Jury, Jason Solomon examines the role of the civil jury as a political institution—in other words, the role of the jury in democracy.  Seeking to begin a discussion in the literature on whether the civil jury serves as a political institution, Solomon exhaustively and critically examines the justifications for the civil jury in this role.  Solomon’s is one of several excellent recent articles on the civil jury; others include John Langbein’s The Disappearance of the Civil Jury, and Darrell Miller’s Historical Tests, (Mostly) Unbalanced Rights, and What the Seventh Amendment Can Teach Us About the Second.

Solomon begins with a provocative argument that some of the most important cases in the last four terms of the Supreme Court, including Snyder v. Phelps, Wyeth v. Levine, Exxon Shipping Co. v. Baker, and Wal-Mart Stores, Inc. v. Dukes, reflect a distrust of the civil jury and a concern that juries are deciding law-like questions.  As a result, Solomon argues, we must continue to evaluate the jury.  In doing this in the past, the focus has been on whether the jury has the ability to decide cases effectively.  The ready response here has been that the ability of juries to decide cases matches that of judges.  In addition to an adjudicative role, however, some scholars argue that the jury serves as a political institution.  Solomon argues that this justification should be fully assessed, and the competencies of juries to judges should be compared.

Solomon commences his analysis of the jury as a political institution by looking at whether the jury serves as a check on governmental power.  After arguing that the jury does not perform this role, Solomon examines whether the jury is a check on corporate power, which he also rejects with much evidence.  Next, Solomon wonders whether the jury is important to counteract repeat players.  He ultimately concludes, though, that repeat players actually have more influence over juries than one-time litigants.

After his discussion of the jury as a check, Solomon next discusses whether the jury provides democratic legitimacy.  He first examines the normative legitimacy of the jury.  He rejects the claim that the jury looks like the community from which it is drawn and also counters the idea that twelve heads are better than one.  Additionally, Solomon analyzes whether the jury’s deliberative process confers legitimacy, criticizing this in part because the jury gives no reasons for its decisions.  Solomon also questions whether the jury can actually arrive at the right answer as is often propounded.  After completing this examination of the normative legitimacy of the civil jury, Solomon assesses the sociological legitimacy—that people perceive the civil justice system as more legitimate when there is a jury.  Following this analysis, he goes on to criticize the ability of the jury to inject community norms into the system and to make people better citizens.

Much of Solomon’s criticism of the jury stems from the harm to rule-of-law values, including that, as just stated, the jury—which exists in a black box—does not give reasons for its decisions, that like cases should be treated the same and the jury cannot do so and finally, that a jury decision has no precedential value.  Solomon also emphasizes that judges are at least as good at the jobs that the jury is supposed to be doing.

In the article, Solomon makes five concrete though preliminary suggestions to improve the role of the jury as a political institution.  First, the jury should not vote at the beginning of its deliberations so that deliberations can be more evidence-driven.  Second, a verdict based on an eighty-percent supermajority rule would be better than the current unanimous and majority vote systems that respectively lead to dissenting jurors not speaking out and jurors ignoring dissenting views.  Third, a jury with more occupational and educational diversity will promote the legitimacy of the system as well as the deliberative process of the jury.  Fourth, Solomon wants us to question the county (the level at which juries are selected in many states) as the proxy for community.  And fifth, he suggests encouraging jurors to keep in touch with one another after their service on the jury is complete, in order to increase political and civil engagement.  After this comprehensive analysis of this important, unaddressed issue of whether the jury is a political institution, Solomon concludes with his original argument that the benefits of the jury as a political institution are overstated.

Solomon’s article was a joy to read and should be widely cited on the topic of the role of the civil jury.  In a clear and concise manner and with impressive detail, Solomon makes us think differently about the jury, questioning its role as a political institution.  Moreover, by discussing the legitimacy of justice systems of other countries without civil jury systems, Solomon leans in the direction of recent scholarly work questioning why we have civil juries at all.

It may beyond the scope of Solomon’s article, but from my scholarly perspective, I wonder why it matters whether the jury plays the political role or any role well including for purposes of legitimacy.  The existence of other what I have referred to as constitutional actors – such as the executive, the legislature, and the judiciary – have not been questioned like the civil jury’s existence has been questioned.  Does the jury not have a distinct role under the Constitution just as these other actors have?

We can all look forward to more great work by Solomon challenging assumptions about the civil jury, including an upcoming companion article, which will argue that juries and open-ended standards are worse than judges and presumptive rules in identifying and applying social norms.

Why Judges Leave the Bench

Nov 19, 2012 James E. Pfander

James E. Pfander

Law review articles have both texts and subtexts, messages that come through loud and clear and more subtle hints and suggestions that lurk in the article’s structure or methodology or footnotes.  A recent paper by Stephen Burbank, S. Jay Plager, and Greg Ablavsky nicely illustrates the idea.  In Leaving the Bench, the three co-authors offer a careful assessment of the many factors that shape the decisions of federal judges to step down from their jobs as active members of the Article III judiciary.  In the text of the piece, the authors explore the consequences of various forms of judicial departure and make a persuasive case that the institutional judiciary depends heavily on the contributions of senior status judges.  In the subtext, the authors provide a subtle reminder that judicial behavior, like all human behavior, resists simplistic modeling and one-dimensional explanation.  The authors put the proposition this way:  sometimes the scholar must attend to the “messiness of lived experience” rather than the tidiness of an unduly parsimonious model.

Models have taught us a great deal about the way political scientists and economists think about the way judges decide cases.  Political scientists prize the large N study, with lots of data points to smooth out the rough edges of statistical inference.  Economists prize presumptions about self-interested behavior.  Voting by Supreme Court Justices and federal appellate court judges has attracted the eye of such scholars:  it occurs with numbing frequency, enabling the statistically-minded to assess the ideology of a judge or Justice by reference to the way she votes.  Datasets vary in usefulness; some sort cases by the presumed valence of the outcome (left or right) and then assess votes against the backdrop of those assumptions.  Others use the votes themselves as a measure of voting behavior.  For many, votes either reveal or confirm that ideology plays a role in judging, although the more sophisticated studies suggest that panel make-up and–wait for it–doctrine can also influence the exercise of the judicial franchise.

Some of these same assumptions about judicial behavior recently have been brought to bear on the study of the timing of judicial retirement.  These studies begin with the hunch that judges time their departure decisions with a view toward influencing the politics of their successors by taking senior status when a like-minded president has the power to appoint the replacement.

Enter Burbank, Plager, and Ablavsky to test this set of hypotheses.  Among its many virtues, the piece nicely combines quantitative and qualitative analysis.  We come away from the paper with a much richer understanding of the many different ways judges leave the bench: by retiring, resigning, and accepting senior status, each with a different set of pluses and minuses.  We hear what the judges themselves have said about leaving the bench:  the authors surveyed judges about the considerations that influenced their decisions.  We also gain some insight from the numbers themselves, which the authors present to fill out the portrait.

On a close assessment of judicial motivation, the authors do not find that the desire to influence the selection of a successor dominates all other considerations.  Indeed, they find instead that a complex mix of considerations shapes the decision.  For example, judges often take senior status to enable their court to gain another member and increase the judge power of the court.  The law creates incentives for senior judges to maintain at least a 25% caseload in order to preserve their eligibility for any future salary increases, so this strategy represents a net gain for the court when senior judges stay active.  In addition, judges act to gain a slightly more beneficial tax treatment (avoiding FICA tax on their salary, which otherwise remains the same) and to increase the amount of outside income they can earn (freed of congressionally imposed limitations on active judges).  Apart from the nuance that appears in this multi-methodological study, we learn important truths about the state of our federal judge corps:  the country has grown increasingly dependent on senior-status judges because there are not enough authorized active judgeships; as salaries have stagnated, we may be encouraging more judges to retire for simple financial reasons; and we need to provide appropriate chambers and support personnel to encourage senior status judges to maintain that arrangement and to resist the siren call of better paid work in the rent-a-judge sector.

To be sure, a self-interested judge may describe her decisions in public-regarding terms that seek to preserve her good opinion of herself.  Only three of the dozens of senior judges who responded to the survey identified political motivations as central to their decision.  Of course, it may be that one would find political machinations lurking behind reported desires to increase the court’s judge power. Other judges reported that they were influenced by the fact that service as a senior judge preserves their eligibility for future salary increases (which have failed to materialize).  The great value of the study lies in its demonstration that crass political and economic motivations do not best explain all the data. What’s more, it appears that many senior status judges work much longer hours than would be required to maintain their eligibility for future salary increases.  On the whole, then, concern for colleagues and a certain loyalty to the work of the institutional judiciary appears to shape judges’ conception of their role when leaving the bench.

Messy, to be sure. But it is an account that appears to capture the complexity of judicial behavior.

Federal Crimes, State Courts, and Palmore

Oct 26, 2012 Steve Vladeck

Steve Vladeck

In 1973, the Supreme Court in Palmore v. United States upheld Congress’s creation of an “Article I” court in the District of Columbia—the D.C. Superior Court—against a claim that Congress lacked the power to invest non-Article III federal courts with the authority to entertain criminal prosecutions arising under federal law. One of the linchpins of Justice White’s analysis for the 8-1 majority was his observation that, “Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III.” As White explained, if it did not violate Article III for Congress to allow state judges to entertain federal criminal prosecutions, then it would be far harder to understand why, in at least some circumstances, non-Article III federal criminal adjudication—especially in a tribunal acting as a quasi-state court— should not also be permissible.

And yet, as Michael G. Collins and Jonathan Remy Nash persuasively demonstrate in Prosecuting Federal Crimes in State Courts, the historical record to which Justice White alluded in Palmore is “sketchy at best.” Instead, Collins and Nash’s article offers a compelling mix of historical, legal, and policy-oriented explanations for why the scattershot exceptions from the earliest years of the Republic may in fact prove the rule—that state courts generally do not (and should not) have the power to entertain criminal prosecutions arising under federal law. And whereas Collins and Nash’s article comes in response to a series of recent proposals to expand the federal criminal jurisdiction of state courts, the true significance of their analysis may be the extent to which it deprives Palmore (and, as such, federal criminal adjudication in non-Article III federal territorial courts in general) of perhaps its strongest analytical underpinning.

Perhaps the strongest argument in favor of state court jurisdiction over federal criminal prosecutions is grounded in the Madisonian Compromise—the idea that the Constitution authorizes, but does not require, Congress to create lower courts. Without such lower courts, and with the Supreme Court’s carefully circumscribed original jurisdiction, the logic goes that federal suits contemplated by Article III, including federal criminal prosecutions, would have to be brought in state courts.

In fact, though, as Collins and Nash explain, scholars who have made this claim have tended to assume a point that is hardly obvious (and that the Supreme Court has since rejected)—that state courts may hear any and all cases arising under Article III. To the contrary, Collins and Nash marshal substantial anecdotal and historical evidence for the proposition that at least some of the Founders did not believe that the Madisonian Compromise necessarily required state courts to hear federal crimes. Instead, “the historical evidence fails to show that the Compromise held such significance for members of the Founding generation, or that they reasoned (as modern scholars do) from the textual possibility of no lower federal courts to conclusions about state-court powers or duties respecting federal criminal cases (or, indeed, any other federal judicial business).” Given two distinct efforts to amend the Constitution in the 1790s to specifically provide for state court jurisdiction over federal criminal prosecutions, the (at best) equivocal nature of the Founding-era history seems difficult to dispute.

Prior commentators—including Frankfurter and Landis in their 1928 masterwork on The Business of the Supreme Court and Charles Warren in a 1925 Harvard Law Review article—have also looked to a handful of early state court decisions appearing to establish their power to entertain federal criminal prosecutions. Collins and Nash argue that these cases establish only that

At most—and only for a relatively brief period—state courts took jurisdiction in civil proceedings to recover monetary penalties or fines for violations of federal penal statutes. There is no similar record of genuinely criminal proceedings in the state courts for violations of federal law. Moreover, on the rare occasion when Congress actually permitted states to entertain federal criminal prosecutions, state courts concluded that they lacked jurisdiction.

Instead, Collins and Nash suggest that the stronger support for the power of state courts to entertain federal criminal prosecutions comes from developments subsequent to the Founding, including (1) the Supreme Court’s recognition after the Civil War of the power to remove state criminal prosecutions—of federal officers or where the defendant had a federal civil rights defense—to federal court (which militates against the existence of a cross-jurisdictional prosecutorial bar); and (2) the post-World War II jurisprudence articulating the obligation of state courts to hear at least some claims arising under federal law (in Testa v. Katt and its progeny).

As to the first development, Collins and Nash emphasize that the removal cases “were motivated by powerful constitutional concerns—for supremacy and equal protection, respectively—concerns that are missing in proposals for state courts to hear federal criminal prosecutions.” That is to say, constitutional imperatives overrode the structural limits on interjurisdictional prosecutions that otherwise remained—and therefore moved only in one direction.

With regard to the second development, Collins and Nash rightly point out that the Supreme Court has carefully ducked this question time and again, holding only that states may not discriminate against federal claims over which they would otherwise have jurisdiction unless they have a “valid excuse,” and not that state must open their doors to such suits in the first place. At the very least, Collins and Nash conclude, state courts should not be able to entertain federal criminal prosecutions unless and until the legislature specifically chooses to confer such authority.

And at that point, a separate set of concerns would come into play—including “Article II problems respecting the exercise of federal criminal prosecutorial authority by persons not appointed as federal officers, as well as the delegation of prosecutorial power outside the executive branch”; “anti-commandeering problems were Congress to mandate state officials’ prosecution of federal crimes” (as in Printz); questions of how the Fifth Amendment’s right to grand jury indictment (which hasn’t been incorporated) would apply; whether governors—instead of Presidents—might be able to pardon individuals convicted in state court for federal crimes; and whether the doctrine of “separate sovereigns” would or would not bar  states and the federal government from separately prosecuting individual defendants for the same federal crime. Ultimately, Collins and Nash do not suggest that any of these arguments categorically compel the conclusion that the Constitution forbids federal criminal prosecutions in state courts. Instead, their admirably modest thesis is simply that there are enough structural, legal, and practical obstacles to federal criminal prosecutions in state courts to believe that “it is a ‘particularly safe and salutary rule’ that the federal government should be left to enforce its own criminal laws in its own courts.”

*                  *                  *

Although Collins and Nash frame their analysis entirely as a response to a series of proposed policy reforms (such as the partial repeal of the current statute giving federal courts exclusive jurisdiction over general federal crimes), its impact may well be far more significant. After all, if it has not been the case that state courts generally may entertain federal criminal prosecutions, then the argument for allowing non-Article III federal courts to hear such suits must rest on other grounds. Palmore itself offered one—Congress’s unique and exclusive regulatory power vis-à-vis the District of Columbia, which can be analogized to Congress’s unique and exclusive regulatory power over the insular territories, which is the ostensible source of Congress’s power to create similar non-Article III “district” courts in Guam, the Northern Mariana Islands, and the U.S. Virgin Islands. But it is not clear why these authorities, by themselves, compel the conclusion that non-Article III adjudication is permissible. If anything, these clauses merely ensure that even local disputes in federal territories fall within Article III’s grant of “arising under” jurisdiction, and so may be resolved by Article III courts (such as the unitary D.C. court system prior to 1970). The other example relied upon by Justice White in Palmore—the power of non-Article III courts-martial to entertain criminal prosecutions—is also unhelpful, since the Supreme Court has traced the constitutionality of a separate military justice system at least in part to the express textual exception for “cases arising in the land or naval forces” in the Fifth Amendment’s Grand Jury Indictment Clause.

In short, Collins and Nash’s article does more than what the authors claim—i.e., provide a counterpoint to an ongoing set of proposed policy reforms. It also suggests that the entire foundation of the Court’s jurisprudence concerning non-Article III criminal adjudication in civilian territorial courts may be as “sketchy” as the historical precedents and structural arguments on which the Palmore Court relied.

Introducing the Court

Sep 28, 2012 Lee Epstein1 comment

Lee Epstein

The U.S. Supreme Court: A Very Short Introduction is indeed a very short book (far shorter than most law review articles), but it is no “Supreme Court for Dummies.” To the contrary, it is a sophisticated, yet accessible, addition to Oxford’s Very Short Introduction series.

This much the author’s identity gives away. Though she now teaches at Yale Law School and no longer covers the Supreme Court full time, the fabulous Linda Greenhouse remains one of Court’s most astute students. (And she continues to write an opinion column for The New York Times website, which should never be missed for its insights on the current Court.)

The U.S. Supreme Court begins as it should, with the Court’s origins. In twelve pages, Greenhouse conveys the predictable—e.g., the foundations of judicial power (Article III, the Judiciary Act of 1789, and Marbury)—but also cases and details that rarely receive mention, much less attention, in intro books. I think here of the pre- and post- Marbury opinions in Hayburn’s Case (1792) and Stuart v. Laird (1803).

Chapters 2 and 5 explore the Court at work, with chapter 2 examining how the Justices approach the Constitution and statutes. Wisely, Greenhouse doesn’t attempt to cover the gamut of methods, which would require A Very Long Introduction. She instead expertly contrasts theories dominant on today’s Court—Scalia’s version of originalism and Breyer’s pragmatism—via exemplary cases. Her use of District of Columbia v. Heller (2008) is especially effective.

Chapter 5 focuses less on the Court’s decision making and more on its procedures. This could be dry material but not in Greenhouse’s hands. Her analysis of case selection, oral argument, and opinion writing goes beyond the obvious “just the facts” stuff, and into the realities of the workaday world of the Court. To take but one example, most texts provide only the basics about oral argument—seating arrangements, time limits, and perhaps a story or two about influential or exceptional arguments. There is some of that here, but Greenhouse goes deeper, explaining what makes for high quality advocacy. As she tells it, successful Supreme Court lawyers can’t afford to focus exclusively on their case but must think about its meaning in the larger scheme of things. “To test the implications of a lawyer’s argument,” she tells us, “justices will often vary the actual facts in order to pose intricate hypothetical questions—to which ‘Your Honor, that is not my case’ is not an acceptable answer.” (p. 51).

Chapters 3 and 4 turn to the Justices and Chief Justices, respectively. Were I charged with covering these topics in 25 (mini) pages, I wouldn’t have known how to start. Happily, Greenhouse did. In Chapter 3, she sets her sights not on any era or group of Justices in particular, but on how the Court’s composition has changed over time, especially the increasing diversity on some dimensions (race, gender, religion) and its decline on others (geographic representation, professional experience). Explaining these changes leads to an instructive discussion of the appointment process and the various calls to revise it.

Chapters 6-8 move outside the Court—to its relations with the other branches of government (6), the public (7), and the world (8). The first two are a treat because, again, Greenhouse manages to move beyond the prosaic while avoiding the pedantic. But Chapter 8 is the real stroke of genius. Of all the introductions to the Court sitting on my bookshelf, none contemplates its global connections. Greenhouse shows why this is a true sin of omission. Particularly illuminating is the material on the twin issues of the importation of foreign law and the exportation of American practices.

If your students—undergraduate, graduate, or law—are looking for a brief introduction to the Supreme Court, as mine often are, this is the book to recommend. In addition to the riveting textual material, it contains a well-edited (and annotated) appendix of further readings. As for you Supreme Court junkies: don’t make the mistake of discounting it. I’ve been studying the Court for nearly thirty years and still learned new things, whether small factoids or different ways to think about an institution that, as Greenhouse rightfully notes, continues to “occup[y] a place in the public imagination.” (p. 87).

SCOTUS in Focus: Two Takes on Cameras in the Federal Courts

Aug 20, 2012 Howard M. Wasserman

Howard M. Wasserman

Television cameras in the courtroom probably have been debated since there have been cameras to bring into the courtroom, with periodic spikes in attention around high-profile cases–O.J. Simpson’s criminal trial or Bush v. Gore or this term’s Supreme Court arguments on the Affordable Care Act. In the past two decades, a communications revolution has turned that occasional spike in attention into a constant drumbeat. More attention from more outlets is focused on the federal courts, particularly the Supreme Court. And video is ever-more accessible, as people can watch on a multitude of devices in a multitude of places, and ever-less obtrusive, so courtroom actors can easily be recorded without knowing it.

Yet, as Nancy Marder puts it, “the revolution has been stopped cold at the steps to the U.S. federal courthouse.” And the Justices themselves have erected and manned the barricades–rejecting calls for more open and immediate coverage of oral arguments in the obviously unique ACA cases, fighting Congress over who wields power to decide whether to allow cameras, and even jumping into disputes over cameras in the lower federal courts in high-profile cases.

Two forthcoming articles attack the debate over cameras in the courts from different perspectives and reach somewhat different conclusions. Collectively they provide a valuable and thoughtful starting point for exploring these issues.

In The Conundrum of Cameras in the Courtroom, Nancy Marder presents the scholarly big picture, stating and responding to competing arguments from all sides of the camera debate. Marder also considers the conflicting values and principles motivating each point of view, values that must be accommodated while potentially pushing us toward a zero-sum game. While proponents of cameras promote ideals of public centeredness and open government, opponents (especially many federal judges) promote ideals of fairness to the participants in litigation, which demands giving them greater control of their courtrooms and proceedings. Marder suggests that cameras are inevitable in the federal courts, but that change should be incremental to balance the range of values. She commends an ongoing three-year pilot program in the lower federal courts, particularly in the appellate courts, so we can truly measure the effects of cameras and establish camera policies based on some empirical evidence. She also applauds preliminary steps already being taken, including posting transcripts and audio recordings, so the public, media, judges, and litigants all become accustomed to quicker access to proceedings. Ultimately, Marder suggests, change will come simply through a generational shift on the courts–judges and Justices who grew up with cameras, modern media, and social networking will be more receptive to such technology in the courtroom.

In Cameras at the Supreme Court, Lisa McElroy takes a firmer normative position–the Supreme Court should open its doors and tell its democratic story, which only can occur if the Court allows cameras to reveal the Court to the public. McElroy argues that the Justices’ opposition to cameras is a product of narrative, symbol, and myth, all of which they have seized and constructed around themselves and the workings of the institution. The “Court perpetuates an Oracle of Delphi-like mythology,” appearing as “mystical, majestic mouthpiece,” a rhetorical creation that the Justices do not want to surrender and that cameras presumably would undermine. McElroy employs narrative theory to reduece the problem to a debate over who controls and determines the public story: the Court, by tightly controlling what the public sees of the Justices and how and when it sees it, or the public, by evaluating with their own eyes and developing their own judgments about the Justices, the Court, and the federal judicial system.

Both articles contribute to a legal discussion that is only going to evolve and expand as technology evolves and expands. Indeed, the relevant legal issues are beginning to move beyond policy-preference questions of whether and when cameras are appropriate (the focus of both of these articles) to substantive constitutional questions of who makes those policy decisions and whose preferences prevail. Companion bills in the House and Senate would require the Supreme Court to allow cameras in all open sessions, subject to a veto by a majority of the Justices when deemed necessary to protect procedural due process. Such legislation raises compelling separation of powers questions over Congress’s power over the business of federal courts.

Both articles nod to, but do not elaborate on, one significant point in the cameras debate: Everything that the Justices hope to avoid by barring cameras is already happening without cameras. Consider the common concern that cameras will alter courtroom behavior of judges, lawyers, and witnesses, what McElroy calls the “Hawthorne” or “observation effect,” defined as alteration of behavior by subjects of a study due to their awareness of being observed. But courtroom actors, especially in high-profile Supreme Court cases, already are being observed and reported on extensively, their words recorded, analyzed, and quoted (or misquoted and taken out of context) for public consumption. The supposed harms that the Justices and other camera opponents highlight are an inevitable product not of cameras, but of public interest and coverage by the ever-expanding media, traditional and new.

Indeed, unless courtrooms are closed completely (which would violate well-established First Amendment law), there is nothing to stop intermediaries from conveying the content of what transpired in the courtroom in any number of specific, detailed ways. In the wake of thwarted efforts to televise the trial in the constitutional challenge to California’s ban on same-sex marriage, marriage equality proponents staged a reading of the trial transcript by a variety of Hollywood actors, including George Clooney, Brad Pitt, and Martin Sheen. A Cleveland television station used puppets to reenact testimony in a federal corruption trial.

Similarly, many of the “incremental” steps towards openness that Marder proposes–posting of transcripts and quick release of audio–already are in place. Yet we get the same out-of-context snippets and cults of personality that camera opponents emphasize. For example, the Court took the unusual step of posting same-day audio of the ACA arguments rather than waiting until the end of the week. Even without cameras, there was extensive coverage of Justice Scalia’s questions about requiring people to buy broccoli, proffering a favorite trope of ACA opponents. And the Republican National Committee produced a political advertisement using audio of the solicitor general’s halting introduction, although the recording was altered to make his pauses longer than they actually were.

What ultimately will settle the policy and scholarly debate over cameras in federal court–the question that Marder glances at but does not resolve head-on–is the appropriate conclusion to be drawn from the fact that we end up in the same place with or without cameras. One conclusion, which Marder considers, is that cameras are different than audio; thus, if audio presents problems, video is a step too far. The other conclusion is that there is no reason not to allow cameras and thereby provide the best, most complete image of the courts and the case, because adding cameras to the mix creates no problems or risks that aren’t already there. If the RNC could misuse audio in an advertisement, it makes no difference if it also can abuse video. If the press can report snippets of Justices’ questions, it makes no difference if the public can see the snippet of the questioning. In fact, by eliminating the filter of the media or other intermediate players, the cameras present a cleaner, unfiltered picture from which viewers can form their own perceptions and conclusions. That cleaner, unfiltered picture allows for a public-created narrative rather than a Court-created narrative.

And perhaps a more accurate narrative. The problem of the media filter was illustrated by the reporting of the ACA decision in June, when CNN and Fox, in the race to be the first to report, both erroneously announced that the individual mandate had been struck down after a too-quick reading of the slip opinion. True, the error was correct in a matter of minutes. But how much easier and more accurate it would be if everyone simply could have watched live audio and video of Chief Justice Roberts reading a summary of his opinion from the bench, hearing the decision from his mouth in real time.

This will be the scholarly, policy, and constitutional point of departure going forward. Marder’s and McElroy’s papers give that discussion a strong foundation to build on.