Friday, October 24, 2014

Empirical Suppositions in Supreme Court Decisions: Some Stray Thoughts

-- Posted by Neil H. Buchanan

Professor Dorf's post yesterday, "Empirical Scholarship In and Around Constitutional Law," described an important new project (and an associated conference that is taking place today) that attempts to make empiricism a more important part of constitutional legal scholarship.  The idea is that, among all of the subjects addressed by legal scholars, constitutional law seems to be the one that has been least affected by formal empirical studies.

As Professor Dorf describes, con law's isolation from serious empirical research can hardly be explained by any claim that empirical matters are simply irrelevant to constitutional analysis.  Notwithstanding the intuition that constitutional matters are theoretical, not factual, in reality we frequently (one might even say always) find that there are important empirical presumptions underlying constitutional decisions, from the Supreme Court on down.

For example, the paper that Professor Dorf and his co-author, Professor Brandice Canes-Wrone, are writing (soon to be summarized here on Dorf on Law) looks at the concept of "chilling effects," in this case whether bans on certain types of abortions change people's behavior with respect to activities not directly affected by such bans.  If we were to find that such activity is not changed, then constitutional concerns about chilling behavior would be merely theoretical; but if people do act differently, then legislatures and courts should certainly take those unintended effects into account.

Thinking about yesterday's post, I found myself putting together a growing list of constitutional decisions from the Supreme Court that clearly rely on empirical suppositions by the justices about the world, even though their own contact with the world is notoriously "special."  The famous story of a Supreme Court justice asking a passing stranger if he could borrow the stranger's pocket copy of the Constitution comes to mind.  Supreme Court justices (and other judges, and legislators) often presume that they know what "normal people" think and do, but they are often quite wrong.

Consider a number of examples, from different areas of constitutional law.  First, the line of cases that determine when a person has been "detained" by the police is rife with assertions from the justices about how a person would reasonably act when confronted by an officer.  The most preposterous empirical statement from the Court came in a case in which officers had boarded a bus and were moving down the aisle, asking passengers questions.  The Court's decision turned on whether the officers had physically blocked the aisle in a way that would stop a passenger from getting up and walking off the bus, because supposedly a reasonable person would know that they are otherwise not, in fact, detained -- and would feel perfectly comfortable getting off the bus without answering questions.  Although one might defend the majority's statement as simply saying what a person should know under the Constitution, in fact the claim was entirely an empirical one: We do not need to worry about liberty being violated, because people who do not want to answer questions voluntarily will not respond to being confronted by officers by altering their behavior as if they had actually been told not to leave.  As I heard one con law scholar put it after reading that case: "What planet does the Supreme court live on?"

But that question is only relevant if people on different planets in fact behave differently, which is an empirical question.  The second example, from the late 1980's (if I recall correctly), had the Supreme Court deciding that trash that had been put out on the curb to be picked up was fair game to be searched by police officers.  The Court's rationale explicitly included the supposition that people would know that their trash is no longer their private property (because they have voluntarily disposed of it), and thus that the police could search it.  Is that what real people actually believe?  I recall an economist predicting at the time that there would be a surge in sales of shredders, specifically because people would be shocked to learn that their trash was not protected by privacy doctrines.  No one, as far as I know, carried out an empirical study of that claim, but the point is that the Supreme Court's majority blithely asserted something as fact that struck most people as simply "not what real people would think."

A slightly different issue is raised by a third example.  In a case in the 1990's, the Court allowed a school district to censor a high school student newspaper.  (I apologize for not having case names and citations for these cases, but I assume that interested readers can track them down.)  I believe it was Justice Stephens who wrote the opinion in which the Court held that the school's administrators had a reasonable concern that the views expressed in the student newspaper could be attributed to the school district itself.  At the time, my immediate thought was that we see disclaimers all the time: "The views expressed herein do not necessarily represent the views of ... ."  Although the Court did not even go that far in its analysis, it strikes me in the current context that there is an interesting pair of empirical questions here: (1) Without a disclaimer, would people really believe that what students write in a school newspaper expresses the views of the principal and superintendent? and (2) If so, would a disclaimer change people's views?  But the Court was unconcerned, because they were willing to make an unexamined and unsupported assumption about reality.

This phenomenon is present also in cases where I happen to agree with the outcome.  The Court's now-great Windsor decision invaliding the Defense of Marriage Act includes a lulu of an empirical claim by Justice Kennedy about how people think.  He claimed that the children of same-sex couples are psychologically harmed by knowing that the state does not treat their families with the same respect with which it treats the families of opposite-sex couples.  Although I (and the judges who have relied on Kennedy's soaring language in Windsor to invalidate bans on same-sex marriage) find that claim to be completely believable, how did Kennedy know?  Maybe these children are simply unaware of the difference, or they do not care.  Maybe they even take special pride in being part of families that are not plain vanilla, and their life experiences could become worse as a result of being mainstreamed.  I strongly doubt any of those alternative possibilities, but they could be true.  If Kennedy's claim is really an empirical assertion about the way people in the real world react to legal rules and norms, where did he get the evidence?  Under his analysis, do we at least not need to examine whether my "dignity" is diminished by other people's thoughts, even if I neither know nor care what they think?

A threshold question in all of these examples is, where does the Court get its evidence?  One answer is that empirical evidence (beyond what is available from the trial record, if any) can be provided in amicus briefs.  But William & Mary Law School Professor Allison Orr Larsen's recent law review article, which she discussed earlier this month on The Colbert Report, shows just how unreliable those sources can be.  For example, Orr Larsen notes that, in the Supreme Court's decision on "partial-birth" abortion, Justice Kennedy relied on a claim in an amicus brief that was ultimately based on an assertion from an "expert" whose claim to expertise was laughable.  Nevertheless, this allowed Justice Kennedy to claim as an "unexceptionable" fact that many women regret having had abortions and ultimately become depressed and lose self-esteem.

Clearly, Justice Kennedy there was engaged in back-filling, casting about to find some support for a supposition that seemed intuitively obvious to Kennedy.  The particular claim in that instance, however, has been subject to actual empirical inquiry, and the expert consensus is that there is no systematic support for Kennedy's claim (and that there are clear psychological gains for many women who are not forced to carry pregnancies to term, to rear unwanted children, and so on).  But the Supreme Court's controlling opinion in that case states as simple fact something that is at best contestable.  Oh well.

So what about the possibility of harnessing actual expertise?  As a comment on Professor Dorf's post yesterday noted, the trial in a federal court in California that resulted in a ruling that Prop 8 is unconstitutional (affirmed, sort of, in Hollingsworth v. Perry in 2013) involved extensive factual inquiry, including testimony from experts.  That case was, indeed, an outstanding example of a judge trying to answer some essential factual questions.  The problem is that the Supreme Court has already made a bit of a hash of the question of how courts should handle empirical testimony.  The famous/infamous Daubert case essentially enshrined the "95% statistical confidence" standard into law, as a shorthand for courts to determine whether a statistical analysis is reliable.

What is especially unfortunate about that holding is that Daubert was decided just as econometricians were confronting the fact that "statistical significance" has been grossly misused in empirical studies.  Led by the methodologist Deirdre McCloskey, empiricists came to realize that being "95% confident" was neither necessary nor sufficient to establish something as an empirically reliable proposition.  So, just as the field was becoming aware of having gone off the tracks, the Supreme Court came along and blessed the unscientific norm that had unthinkingly emerged in empirical studies.

As the title to this post notes, these are "some stray thoughts" about empiricism in constitutional legal analysis.  Obviously, I am in the early stages of thinking through these issues.  It is clear, however, that there are plenty of areas where the courts (prominently including the Supreme Court) are making decisions regarding constitutional questions on the basis of factual suppositions that have been untested and often not even articulated.  Empirical work is never definitive (especially not the "95% confidence means it's true" variety), but having some empirical work available is better than the alternative.

Thursday, October 23, 2014

Empirical Scholarship In and Around Constitutional Law

by Michael Dorf

Today and tomorrow I will be participating in a conference at the University of Chicago Law School called "Testing the Constitution." The core idea, as expressed in the draft paper of the organizers of the conference--Lee Epstein (political scientist at Wash U St Louis Law), Barry Friedman (NYU Law), and Geof Stone (U Chicago Law)--is that constitutional law is chock full of doctrines that rest on largely untested empirical claims. The conference organizers (collectively "EFS") give a number of examples, including the following:
Think of the Miranda rule, familiar to anyone who watches crime drama on television. Here are [some] obvious questions that arise almost instantly, and that matter to the Miranda doctrine, or ought to. Do people generally know those rights without being told of them? After individuals are warned of their rights, do people generally assert the right to silence or do they talk to the police? Do Miranda warnings reduce the number of confessions?
Similar questions can be posed about many other constitutional doctrines. Thus, as EFS also explain in their draft paper:
We [matched] notable constitutional thinkers with equally notable empiricists. We asked the con law scholars to identify a core question, assumption, or doctrine from constitutional law, and we asked their partner to take a cut at answering it. 
The resulting papers will be published in the NYU Law Review. Today we will have the following sessions:

1) Overview paper by EFS.

2) Maggie Lemos (Duke Law) and Kevin Quinn (political scientist at Berkeley Law): To what extent, and in what ways, is state attorney general partisanship reflected in the positions “the states” take, and the interests they assert, before the Supreme Court.

3) Lee Epstein, William Landes (economist at U Chicago Law) and Adam Liptak (NY Times legal correspondent): Whether the Supreme Court only departs from precedents when there is some “special justification” for doing so, as it has claimed.

4) Richard Posner (federal appeals court judge and polymath at U Chicago Law, The New Republic, etc.): Keynote Address discussing all of the papers and more.

5) Brandice Canes-Wrone (political scientist at Princeton) and Yours Truly (Cornell Law): whether the Supreme Court overbreadth doctrine is justified in nominally applying only to freedom of speech on the supposition that free speech rights are especially susceptible to a chilling effect by looking at whether the abortion right is also subject to a chilling effect.

6) Dan Ho (political scientist and lawyer at Stanford Law)  and Fred Schauer (U Virginia Law): Whether speech "buffer zones" impede speech and, more broadly, whether the Holmesian idea that a "marketplace of ideas" will lead to truth.

Tomorrow we will have the following additional sessions:

7) Rebecca Brown (USC Law) and Andrew Martin (political scientist at U Michigan): Whether "the appearance of influence or access [will] cause the electorate to lose faith in our democracy." (The Supreme Court in Citizens United v. FEC said it would not.)

8) Stephen Ansolabehere (political scientist at Harvard) and Nate Persily (political scientist and lawyer at Stanford Law): Whether the creation of majority-minority districts causes expressive harms to voters (as claimed by the Supreme Court in the line of cases beginning with Shaw v. Reno).

9) Concluding discussion among all of the conference participants

Because the circulated drafts are not yet final, I'll hold off on reporting the answers the papers give to the questions they investigated, and will surely follow up about my own project in a later post when Professor Canes-Wrone and I have a revised version that is ready to share. In the meantime, I'll just say that from my vantage point the papers have more than lived up to expectations. Here I will make a set of brief critical observations about the nature of the conference and about constitutional scholarship more broadly.

As EFS acknowledge and document in their paper, the application of empirical methods to questions relevant to law is a substantial and ongoing trend. It is not entirely obvious, however, that their further claim that constitutional scholars have been late to the party is accurate. Indeed, the claim seems belied by the fact that a substantial number of the empirical scholars participating in the conference hold positions on law faculties.

To be sure, there's a selection bias in favor of empirical scholars on law faculties when one is organizing a conference such as this one, but nonetheless, I don't think that the conference participants are major outliers. Consider Cornell Law School, where the first-year sections of constitutional law are regularly taught by: Josh Chafetz (a lawyer who has a D. Phil in Politics); myself (a mere lawyer but I co-author with an economist and various political scientists, such as this one and this one); Sheri Johnson (another mere lawyer but one who has done substantial empirical work on the death penalty and other topics in collaboration with specialists in statistics, experimental psychology, social psychology, and other subjects); Aziz Rana (a lawyer and political scientist); and Jed Stiglitz (yet another lawyer and political scientist). Yes, Cornell has had a strong empirical legal studies group for some time, but none of the con law faculty is part of the core of that group. Perhaps we are a bit more empirically oriented than con law faculty elsewhere, but probably not by all that much: The legal academy in general has gone in for JD-PhDs in a big way over the last couple of decades, and in con law I would be surprised if the modal PhD were not in political science.

Having said that, I have no reason to doubt the evidence that EFS present in their paper showing that constitutional law scholarship relies on or undertakes empirical work only about half as frequently as other legal scholarship. Indeed, the empirical quotient for constitutional law may be even lower than EFS suggest if, as I suspect, most empirical work about the Supreme Court (in constitutional law and other subjects) takes as its aim explaining the Court as an institution. Why does the Court decide cases the way it does? What broader social, economic, and political phenomena explain the pattern of its decisions? These are empirical questions about the Court but not the sort of empirical questions that the Court itself needs answered to test the soundness of its doctrines. (Interestingly, even two of the conference papers--those by Lemos/Quinn and by Epstein/Landes/Liptak--investigate questions that mostly provide information about why the Court decides how it does rather than investigating questions directly relevant to the Court's own decisions.) So why have constitutional scholars paid relatively little attention to the latter sort of empirical question?

Ironically, the answer may be that empirical scholarship about the Court reveals that the Court doesn't really care very much about whether the factual assumptions underlying its decisions are correct. According to the "attitudinal model," political attitudes and ideology of the Justices supply a complete explanation for results in the Court, with legal doctrines (and thus their attendant factual predicates) serving as mere post-hoc rationalizations. I think that's an overstatement but no sensible observer of the Court's work can deny that values and ideology play a large role in Supreme Court decisions.

EFS consider the possibility that Justices don't really care about facts in their paper but dismiss it by noting that normative judgments about better or worse states of the law, and thus the world, are themselves based in substantial measure on factual propositions. I think that's right but I also think it may be irrelevant to the underlying phenomenon, which is largely psychological: Justices' views about facts do indeed underwrite their normative views, but it doesn't follow that their views about facts would change if confronted with new evidence. Suppose it were demonstrated empirically either that race-based affirmative action does not stigmatize its beneficiaries or that the "mismatch" hypothesis is true. Would conservative Justices change their views about affirmative action in the first case? Would liberals change their views in the second case? Count me as dubious.

I do not mean to say that judges and Justices never care about whether the empirical assumptions underlying their doctrines are true. There may well be a substantial subset in which they do care, and (as Professor Buchanan's post earlier in the week underscored) some particular judges are more open to evidence than others. But if the sort of work being done for this conference is to have a practical impact, we need to identify those empirical questions that the courts are likely to actually care about. Doing so is itself an empirical project.

Finally, I would add that plenty of normative legal scholarship is undertaken with no realistic expectation that it will affect the work of the Court. That is not necessarily the point. Scholars may legitimately criticize the Supreme Court for its performance in constitutional (and other) cases with an eye towards mobilizing political constituencies to take action, perhaps through the confirmation process. Or they may criticize the Court simply for the sake of criticizing the Court or, to put it in nobler terms, because telling the truth has inherent value. If critique for its own sake is a worthwhile enterprise with respect to normative arguments (as I believe it is), then it is also worthwhile with respect to empirical propositions.

Wednesday, October 22, 2014

Hobby Lobby Post-Mortem Part 12: Can a Federal Court Order a Federal Agency to Violate the Law? (Answer: Sometimes)

by Michael Dorf

In an informative post on Balkinization last week, Nelson Tebbe, Richard Schragger, and Micah Schwartzman (TSS) explain how a critical premise of the Supreme Court's decision in Burwell v. Hobby Lobby is being violated, at least temporarily. The premise (which Justice Kennedy's concurrence appeared to make a necessary condition of his providing a fifth vote for the majority, and which is arguably required by the Establishment Clause) is that providing corporate employers with an exemption from the legal obligation to provide employees with health insurance that covers contraception without cost sharing will not impose harm on third parties--i.e., that employees will continue to have access to the same coverage.

As TSS note, because the mandate in the case has issued, Hobby Lobby and Conestoga Wood are currently exempt from the contraception insurance requirement. The Administration is working on a proposed IRS/EBSA/HHS rule that would provide the employees with no-cost-sharing contraception insurance without their employers' participation, but that new rule is not yet in place. However, under the Supreme Court's own 1988 ruling in Bowen v. Georgetown University Hospital (GUH), a federal agency does not have the authority to promulgate retroactive regs unless that authority is expressly delegated by Congress--which has not delegated such authority here. Thus, TSS conclude, the employees will not be reimbursed for their out-of-pocket contraception costs incurred between the issuance of the mandate and the finalization of the new rule. Accordingly, at least during the interim period, the premise of no burden on third parties is false.

I agree with the analysis of TSS but I want to add a wrinkle concerning Bowen v. GUH. Because that case only states a presumption of statutory construction, it is overridable and, in my view, should be overridden here by RFRA.

But first, let's consider a hypothetical constitutional case. Suppose that Hobby Lobby arose not under RFRA but under the pre-Employment Division v. Smith Free Exercise law and suppose that the Court concluded: 1) that the Constitution required the government to accommodate Hobby Lobby if it could do so without imposing significant costs on third parties; and 2) that such an accommodation would indeed be readily available; but 3) only if the relevant federal executive agencies promulgate a reg with retroactive effect for the interim period. Under such circumstances, I think the right answer would pretty clearly be for the Court to order the government to accommodate and to promulgate a partially retroactive reg. After all, if the agency can't promulgate a retroactive reg, then accommodating Hobby Lobby does impose significant costs on third parties, and so Hobby Lobby is not entitled to an accommodation. But an otherwise valid claim of constitutional right (to accommodation) should not have to yield to a mere rule of statutory construction (concerning delegation of retroactive rulemaking authority).

Matters are somewhat more complicated with an actual RFRA claim but I think we reach the same bottom line. Now the question is whether Congress, when it enacted RFRA, intended to delegate to administrative agencies the authority to promulgate retroactive regs if doing so was necessary to providing religious accommodations (because necessary to prevent some class of third parties from being burdened by an otherwise-required accommodation). I think the answer is probably yes. Assuming that the government can accommodate relatively easily (which will be true if the law without the accommodation is not narrowly tailored to serve a compelling interest) then the Congress that wrote RFRA can be presumed to want the relevant agency to promulgate the needed reg, even if it must be retroactive.

The immediately preceding paragraph is subject to three caveats.

First, I would concede that Congress when it enacted RFRA almost certainly did not actually intend to authorize retroactive rulemaking because it's doubtful that anyone in Congress anticipated the problem that has now arisen. So when I say that Congress intended to delegate the relevant authority what I mean is something more like the overall purpose of Congress in enacting RFRA is best facilitated by reading it to encompass subsidiary power in the courts to give effective remedies, even if that means displacing some default rules of statutory construction. This strikes me as unproblematic unless one is a fairly strict textualist or one thinks that the clear statement rule of Bowen v. GHS is constitutionally required. I'm not a strict textualist. Meanwhile, I read Bowen v. GHS as connected to constitutional principles regarding congressional power to delegate authority to agencies, but I do not read it as saying that the clear statement rule is in fact constitutionally required.

Second, in my substantive analysis I asked whether Congress would prefer 1) no accommodation or 2) an accommodation plus retroactive rule. But there could be a third option: 3) an accommodation that becomes effective only after a purely prospective reg has been promulgated. If the SCOTUS thought that this was the preference of Congress, then it should have ordered the agencies to promulgate a rule as soon as possible, with Hobby Lobby and Conestoga Wood to receive their exemptions only after the rule became effective. The Court did not pursue this option (perhaps because it was unaware of the Bowen v. GHS issue) but I think it's probably inferior to option 2) anyway, because it means that plaintiffs like Hobby Lobby must comply with laws that violate their (valid) RFRA religious while they wait for the wheels of the bureaucracy to turn. Option 2) gives the claimants their relief sooner and, so long as substantial harm to third parties can be avoided by retroactive rulemaking, avoids substantially burdening third parties. Win-win.

Third, one might worry that the courts ought not to be in the business of delegating lawmaking power to federal agencies. This strikes me as a legitimate worry but one that does not distinguish between purely prospective rulemaking and rulemaking that has some retroactive effect. There are circumstances in which an accommodation of a valid RFRA claim would require a modification to an existing regulatory scheme even though the scheme, as modified, might fall outside of the apparent scope of any prior delegation to an agency. Nonetheless, RFRA entitles successful claimants to go to court to "obtain appropriate relief against [the] government." That is the language of broad remedial authority, sufficient, in my view, to include a court order to an agency to take action that would otherwise be outside of its authority. The only constraint here might be the non-delegation doctrine, but I would think that the very forgiving requirement of an "intelligible principle" would be satisfied by the initial grant of authority to the agency to make whatever pre-exception rule is at issue, combined with the policy of RFRA.

Tuesday, October 21, 2014

Academic Hubris and the Puzzling Case of Judge Posner

-- Posted by Neil H. Buchanan

I am serving on GW's Appointments Committee this year.  (Condolences and flowers may be sent to my office address.)  The law professor hiring process includes the annual "faculty recruitment conference" -- aka the "meat market," for lack of an animal-friendly snarky shorthand for the event -- in which first-round interviews for nearly all law schools take place at the Wardman Park Hotel in Washington every October.  With those interviews having taken place this past weekend, I have been thinking about my own experiences on the entry-level market.

In my case, however, I have two sets of experiences, because I participated on the entry-level market as an economist, and then when I changed career directions, again in the entry-level market for law professors.  One anecdote from those experiences stands out, and provides a (perhaps tenuous) bridge to discussing the evolution of Judge Richard Posner, a legal scholar and jurist who also claims to know something about economics.

In economics, as in most fields, the young scholar is advised not to "think big" in her or his dissertation research.  Be incremental and simply work from existing paradigms, adding a bell or whistle to an existing line of literature.  Although there are plenty of reasons to be cynical about that advice, it is inherently sound.  Why, after all, should a 25-year-old think that she or he is the once-in-a-generation superstar who already sees that a new idea requires not just to be taken seriously, but that the new idea turns all existing knowledge on its head?  The incrementalist approach is in some ways incapacitating, but the alternative risks absurd grandiosity.

When I was on the entry-level market, a former friend from grad school (who was a couple of years ahead of me) was excited to tell me that his college had decided to interview me, and he told me that I was a shoo-in to make it to the next stage.  At the interview, however, he began, "How is your research going to change economics as we know it?"  He was serious.  I told him that my research would not change economics as we know it, and no one else's would, either.  He persisted, but I was honest and told him what I thought.  Afterward, he told me that I had blown it, because my "thinking is too small."  (Update: In the decades since that interview, his research has not changed economics as we know it.)

Why is that relevant here?  When I went on the legal academic market, I kept thinking about that ridiculous moment when I was invited -- all but commanded -- to describe my ambitions with over-the-top grandiosity.  If I were asked that question in a law school interview, what would I say?  Maybe, I thought, my answer would be something like this doozy: "I'm here to save the world from Richard Posner."  Of course, I only would have said such a thing self-mockingly, because everyone should know that such a thing is ridiculous.  Not even the most stellar academic career could "save the world from Richard Posner," whom Professor Dorf recently (and correctly) described as "the greatest judge of his generation and one of the two most influential American judges never to sit on the Supreme Court."

No sensible academic would start his career by thinking that Posner's legacy could be argued out of existence.  To the extent that my comically exaggerated characterization could capture something meaningful, therefore, it would mean that it is important to have people with advanced training in economics who wanted to use that training to poke holes in the then-ascendant "law and economics movement" (which is how the movement's adherents talk about their research agenda).

In some ways, then, Posner was merely a stand-in for the whole Chicago-inspired attempt to turn simplistic utilitarian, rational-choice based, anti-government economic thinking into a legal school of thought.  Posner is not an economist, but he is obviously arrogant enough to think that he does not need to be one, even though he claims to be applying their insights.  And he certainly has never been shy about deriding notions of "fairness" as mere sentimentality, if they stand in the way of his particular view about how a case should come out.

Even so, Posner's use of economics was almost always opportunistic.  He would invoke economic terms like "marginal utility" to recast arguments in economic terms, even when the argument did not need to be translated into economics-ese.  For example, in one exchange with Professor Fuller, Posner insisted on calling morals "interdependent utility functions," which advanced the argument not at all.

And then there is Sex and Reason, his 1992 book that Professor Carol Sanger eviscerated in a 1993 article in USC's law review (He's Gotta Have It, 66 Southern Cal. L. Rev. 1221).  Sanger correctly called out his panorama of "just so" stories, in which people end up being gay only after having struck out when the "market for heterosexual partners" had cleared, or rape is possibly only an unpaid-for economic transaction.

Even as he was earning his stripes as a conservative hero, however, Posner was willing to go his own way.  In a 1983 contracts case arising from Indiana, Morin Bldg. Products v. Baystone Construction, Posner was willing to see past seemingly clear contract language to allow a reasonableness standard to guide a contract. True, Posner went way out of his way to assure his compatriots that his decision would not "strike at the foundations of the freedom of K," but he was still open-minded enough to see past ideology.

More politically potent was his stance in Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999) (en banc), in which Posner wrote the opinion declaring that "partial-birth abortion" bans were unconstitutional.  It is plausible to say that Posner was simply being a pure libertarian there, much more true to the real Ayn Rand than the religious zealots in Congress and elsewhere who selectively invoke her views.  But it seems that something more was at work.

The occasion for Professor Dorf's column (and blog post) praising Posner was the recent 7th Circuit decision striking down bans on same-sex marriage.  There, Posner was brilliant in tearing down the arguments that opponents of SSM had put before the court.  In the short time since then, Posner has again made headlines by penning a devastating dissent in a case that allowed Wisconsin's restrictive Voter ID law to take effect (a decision that the Supreme Court quickly reversed).

Posner's opinion was so politically salient that the Talking Points Memo blog published "9 Scathing Quotes From Judge Posner's Dissent Against WI Voter ID."  Number 1 reads: "Some of the 'evidence' of voter-impersonation fraud is downright goofy, if not paranoid, such as the nonexistent buses that according to the 'True the Vote' movement transport foreigners and reservation Indians to polling places."  Number 8 reads: "There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, if there is no actual danger of such fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens."  (I would not describe the others as all "scathing," but that is hardly the point.)

In some ways, this could simply be another example of Posner seeing a case and being agile enough to write an opinion that supports his predetermined outcome.  But we know that Posner has been quite clear about being "guilty" of bad reasoning in an earlier Voter ID case, and if anything, he is now saying that his eyes are opened by new evidence, and also by being willing to look past rhetoric to determine motive.

Posner is certainly no liberal, but as with so much of the political/legal universe, what used to be called simple realism now exists almost exclusively on the liberal side of the divide.  Even the late Chief Justice Rehnquist reportedly looked around in his later years and wondered where all the crazy people in his camp had come from.

It might be said, in any case, that Richard Posner has saved the world from Richard Posner, as only he could.

Monday, October 20, 2014

How an Ordinary Case Becomes a Great Case

By Michael Dorf

My most recent Verdict column compares the cert denials in the same-sex marriage cases to the series of per curiam decisions issued by the SCOTUS after Brown v. Board of Education, in which the Court summarily affirmed the lower court decisions that invalidated segregated facilities in every possible context, even though Brown itself arguably applied only to public education. After some analysis, I conclude that the comparison shows that perhaps United States v. Windsor (the DOMA case) was not a mere half-step as most observers thought at the time, but was, in retrospect, a great case.

The foregoing formulation raises the question of what makes a great case great.  I don't have a good answer to that question. Indeed, I recognize that it's not a very well-formed question. Any criteria for "greatness" will be mostly stipulative, even if what we mean by great is something like "very important." Important for whom? Measured how? Etc. Nonetheless, I think that, at least at the extremes, there would be widespread consensus about what cases are great and what cases are not so important. The point I want to make here is a generalization of the point I make in the column: The status of a cases as great may not be apparent when it is decided.

Marbury v. Madison is a leading example. Today, Marbury is the Ur-case of the constitutional law course, because it establishes the Supreme Court's power of judicial review of acts of Congress. But in its day, Marbury was important, if at all, chiefly for two other reasons: (1) It presented the question whether the Supreme Court could (or would) issue an order to the President (or Secretary of State), and if so, whether the Administration would comply; and (2) the drama in Marbury was connected to the much more important question of the power of Congress (in the Judiciary Act of 1802) to repeal a law creating federal judgeships. The Court's jurisdictional holding ducked question (1), and the Court's capitulation to Congress in Stuart v. Laird gave the Jeffersonian Republicans their victory. Accordingly, although the strong language in Marbury frustrated Jefferson, the resolution of the case was not seen as important. Only later, as the power of judicial review became more important, did Marbury retroactively take on the character of a great case.

More broadly, in the traditional common-law view, the greatness or lack of greatness of a case inevitably emerges over time. Lincoln had something like this phenomenon in mind when he said of Dred Scott v. Sandford, in his first Inaugural, "that it may be overruled and never become a precedent for other cases." Lincoln made that point as part of a broader argument against judicial exclusivity in constitutional interpretation, but putting aside questions about the proper scope of "popular constitutionalism," Lincoln's views with respect to precedent were quite ordinary, reflecting the standard view of precedent in a common-law system: the scope of a precedent is not clear until subsequent cases follow it, extend it, fail to follow it, or change it.

The occasional tendency of modern case law towards rule-ness--such that, as Fred Schauer has observed, precedents are sometimes written and then read as if they were statutes--cuts against the traditional common-law view. It's worth noting here (if only to flag for what might be a follow-up post some day) that Justice Scalia's idea that the rule of law requires rules is in some considerable tension with traditional common-law practices (as Justice Scalia has himself sometimes noted, as in his criticial discussion of the common law in A Matter of Interpretation). My broader point is that, taking the long view, there's nothing especially new or unlawyerly about the SCOTUS treating a case (here Windsor) as establishing a much broader proposition than it was thought to establish at the time.

I'll close with one more example. In modern case law and in constitutional law casebooks, Yick Wo v. Hopkins is typically cited as establishing the proposition that a law that is administered in a manner that discriminates on the basis of race (or national origin) denies equal protection as applied. However, while there is some language in the case that gestures vaguely in that direction, it reads much more like what would today be called a procedural due process decision: the fundamental flaw on which the Court fixated was the arbitrary discretion conferred on government officials to permit (or refuse to permit) the operation of a laundry. That doesn't mean that modern courts and commentators are wrong to cite Yick Wo for the proposition that discriminatory application violates equal protection. The meaning of the case changed over time.

In short, it shouldn't be surprising that the meaning of Windsor appears to have changed since it was decided. What is surprising is how quickly that happened.

Friday, October 17, 2014

Stop and Frisk Appeal, The Sequel

By Anil Kalhan

Were any of you feeling a sense of déjà vu on Wednesday? For the second time in as many Octobers, a panel of the U.S. Court of Appeals for the Second Circuit consisting of Judges José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr. heard two hours’ worth of oral argument on procedural matters in the long-running litigation over the New York Police Department’s stop and frisk practices, Floyd v. City of New York and Ligon v. City of New York. New York City politics was in the air, as community-based groups and elected officials rallied outside the courthouse before the argument and called upon the three judges to “#stopthedelay” in moving forward with the stop and frisk reform process.

To briefly refresh your collective recollections, at almost exactly this time last year—on the eve of the New York City mayoral election—Judges Cabranes, Walker, and Parker were presented with a motion filed by the Bloomberg administration seeking a stay pending appeal of both U.S. District Judge Shira Scheindlin’s liability decision holding the NYPD’s stop-and-frisk practices unconstitutional and her accompanying order initiating a process to remedy those violations. In response, the motions panel not only granted the City’s stay motion, but also hastily acted sua sponte to oust Judge Scheindlin from the litigation altogether and, for good measure, grabbed jurisdiction for itself to adjudicate the merits of the stop and frisk appeal. Regular readers will recall that I examined some of the issues arising from that episode here and here. (Since then, I have developed the themes initially outlined in those posts in greater depth in a law review article that will be published in the Georgetown Journal of Legal Ethics in the coming weeks.) Professor Dorf examined the issues in the stop-and-frisk appeal at some length back then as well, and his posts are here and here.

But what a difference a year can make. In the year since Judges Cabranes, Walker, and Parker issued their Halloween Order, the new administration of Mayor Bill de Blasio settled the litigation and agreed to take steps to withdraw the City’s appeal, which would leave Judge Scheindlin’s liability opinion and remedial order in place and allow the stop and frisk reform process to proceed. New York’s police unions have sought to scuttle that settlement by moving to intervene in the litigation, so that they might prosecute the appeal in the City’s place. However, U.S. District Judge Analisa Torres denied the unions’ effort to intervene in a detailed opinion over the summer, concluding not only that their motion was untimely, but that they lacked any legally protectable interests sufficiently distinct from the City’s own interests to warrant intervention and did not have standing to pursue the appeal once the City itself had declined to do so. In an op-ed for the Huffington Post earlier this week, I argued that the appellate judges should affirm Judge Torres’s decision and grant the de Blasio administration’s bid to voluntarily dismiss the City’s appeal.

Only trace elements of the unpleasantness surrounding last year’s ouster of Judge Scheindlin were evident during Wednesday’s oral argument, which was held before a courtroom filled to capacity and was simulcast by video to two overflow rooms. Having attended the proceeding, my own impressions are broadly consistent with those given in news accounts. (For coverage of Wednesday’s oral argument, have a look at the New York Law Journal, Newsday, the Wall Street Journal, NY1, the Associated Press, and the New York Daily News.) All three judges seemed deeply skeptical of the claims for intervention advanced by the unions’ lawyers. It was not entirely clear whether the three judges agreed on the precise basis (timeliness, failure to satisfy the criteria for intervention, or standing) upon which Judge Torres’s order potentially might be affirmed—or even, for that matter, whether they had definitively made up their minds about which way to rule. But the lawyers appearing on behalf the unions faced pointed and challenging questions on all three of those potential grounds.

However, these news accounts largely ignored an important series of exchanges initiated by Judge Cabranes with the three lawyers representing the City and the two sets of plaintiffs concerning the precise nature of the decree that each of them was seeking. Judge Cabranes described this matter as a “clerical” question, and the ensuing discussion might have confirmed for many observers—who, given last year’s judicial smackdown, might have been hoping for some high courtroom drama—that (as Entertainment Weekly has scientifically proven) the sequel is invariably worse than the original. But the “clerical” issue that Judge Cabranes raised was more consequential than that description might have suggested. With respect to the unions’ efforts to intervene in the litigation, all three lawyers expressed agreement that they wished to see an order affirming Judge Torres’s denial of the unions’ motions to intervene as well as a second order denying the unions’ separate motions to intervene directly in the Second Circuit, which had been filed last fall. With respect to the City’s unopposed motion to voluntarily dismiss its appeal with prejudice, the three lawyers also agreed that they wanted to see the panel grant that motion and issue the mandate forthwith. As the lawyer appearing for the City emphasized, the de Blasio administration wanted to look forward, not backward, and all three lawyers indicated that they were eager to promptly get to work right away on the next stages of the reform process.

To that extent, the panel’s exchanges with the lawyers were fairly straightforward and indeed very “clerical.” However, those ostensibly clerical questions suddenly became a lot more substantive when Judge Cabranes raised the question of whether the panel should do anything with respect to Judge Scheindlin’s liability opinion. The contents of that opinion are a principal source of the unions’ objections to the settlement and a principal ground in support of their motions to intervene. Indeed, at least one newspaper columnist who strongly supports the unions’ position has expressly urged that, even if the panel denies the unions’ efforts to intervene and permits the settlement to go into effect, the liability opinion nevertheless should be vacated. In this context, it was rather odd when the City’s lawyer professed to have no position on the issue. By contrast, counsel for the plaintiffs in Floyd, Baher Azmy, made crystal clear that the plaintiffs would strenuously object to any vacatur or modification of the liability opinion. General news stories about the oral argument did not discuss this seemingly technical question—but the New York Law Journal’s Mark Hamblett (who writes for an audience primarily consisting of lawyers) perceptively picked up on its significance:

[Judge] Cabranes asked what should be done about the liability opinion and whether it should stand…. Azmy told the court he wanted the opinion to stay in place, because it is of a piece with the remedial order. And progress with the remedial process—training, better evaluations and supervision of police—cannot be measured without reference to the liability order. [link]

This exchange about the fate of Judge Scheindlin’s liability opinion was awkward, insofar as it marked the only moment during the argument in which the ouster of Judge Scheindlin by Judges Cabranes, Walker, and Parker directly came up. Judge Cabranes indicated, only a little bit obliquely, that he had raised the issue of what to do with the liability opinion in order to consider whether it might be seen as anomalous for the three judges to effectively “ratify” that opinion when, by virtue of "certain findings” that the panel had previously made in the course of Judge Scheindlin's ouster, they might also be understood to have concluded that the stop and frisk cases should never have been before her in the first place.

However, as Azmy pointed out, the panel had subsequently purported to clarify that it had not intended to make any finding that the cases should not have been assigned to Judge Scheindlin or that she had otherwise engaged in any actual misconduct, but only had decided that the cases prospectively should be reassigned to another district judge in the interests of justice and to ensure the appearance of impartiality. As such, he argued, the possibility described by Judge Cabranes did not present any meaningful concern. As both Professor Dorf and I have separately explored, whether that is in fact the correct away to understand the panel's decision-making last year, which oscillated between multiple rationales in a somewhat confusing manner, is not at all obvious. But Azmy's response did provide an entirely faithful and accurate account of what the panel itself professed to be doing. Were the panel now to embrace yet another account of what it purported to be doing by removing Judge Scheindlin, it would add another layer of confusion to the panel's already confused decision-making in this set of cases.

What seemed much more clear based on that exchange is that any effort by the panel to vacate or otherwise undermine Judge Scheindlin’s liability opinion could end up being rather messy—not only by undermining the substantive basis for the settlement itself, as Azmy emphasized, but also by dredging up much of the drama that the panel unleashed with its decision to oust Judge Scheindlin in the first place. While mostly relegated to the background during Wednesday’s argument itself, that decision continues to cast a shadow over the Second Circuit’s involvement in the stop and frisk litigation as an institution. Indeed, because of the fallout from that decision, counsel for both sets of plaintiffs filed petitions for rehearing en banc last November that not only sought reversal of the panel’s decision, but also, quite remarkably, urged reassignment of the appeal to a different panel altogether. Those petitions—along with motions questioning whether the panel had appellate jurisdiction in the first place—are still pending, and only last month counsel for the plaintiffs directly signaled to the court that they were prepared to renew their petitions for en banc review.

The settlement gives both the panel and the Second Circuit more generally a straightforward potential exit strategy from this unfortunate episode, one that would leave no reason for the plaintiffs to renew those requests for en banc review and would avoid reopening the wounds inflicted a year ago. In this context, while it garnered no headlines and may have made many eyes in the packed galleries glaze over, Judge Cabranes was entirely justified in raising and dwelling upon the details concerning the nature of the decree the parties were seeking. The issue undoubtedly was mindnumbing for many in attendance, but whether the panel’s disposition of these motions in fact does enable everyone to move on, and to avoid having to endure “Stop and Frisk Appeal, The Threequel,” may depend significantly upon this seemingly “clerical” but in fact highly substantive detail to a greater extent than many observers might realize.

Wednesday, October 15, 2014

Witness Incompetence

by Sherry F. Colb

In my Verdict column for this week, I discuss Ohio v. Clark, a case that the U.S. Supreme Court recently agreed to review during the coming term.  Clark raises questions about when the introduction of out-of-court statements offered for their truth (i.e., hearsay) against a criminal defendant triggers the Sixth Amendment right of confrontation and thus requires exclusion in the absence of an opportunity for the defense to cross-examine the maker of the out-of-court statements.

In this case, in response to questions by his teachers (about injuries on his face), a child identified his mother's boyfriend as the perpetrator.  At trial, the judge deemed the (three-year-old) child incompetent to testify but permitted his teacher to testify about his statements to her and another teacher identifying the defendant as the cause of his injuries.  What makes his statements potentially "testimonial" (i.e., the equivalent of in-court testimony and thus subject to the defendant's right of cross-examination) is the fact that his teachers are mandatory reporters of child abuse under the law and therefore might have been acting as agents of law enforcement in questioning the child about his injuries.

In my column, I discuss in greater detail the relationship between the introduction of hearsay evidence, on one hand, and the right of a criminal defendant to be confronted by the witnesses against him, on the other.  I talk about the old test of whether hearsay triggered a right to cross-examination -- the reliability test of Ohio v. Roberts -- and the newer test of Crawford v. Washington that asks whether a particular item of hearsay is or is not "testimonial."

In this post, I want to focus on why the child in Clark was not available to the defendant for cross-examination:  the judge's determination that he was incompetent to testify and therefore could not take the stand to directly provide his account of what happened.  It was for this reason that the jury was left to rely on the testimony of third parties who took the stand and repeated the statements that the child made to them.

Witness competency, as a general matter, refers to a witness's ability to perform the tasks of a witness.  If offered as an expert, then the witness must demonstrate the requisite expertise that will help the jury understand evidence that it might otherwise have a difficult time understanding.  If offered as a lay witness, on the other hand, the witness ordinarily must have direct perceptual knowledge of some matter that is of consequence to the case.  If the litigation concerns a car accident, for instance, a competent witness will have either seen the accident with her own eyes or will have directly observed some other feature of relevance to the case (e.g., the defendant's drinking alcohol or speeding beforehand or the extent of the plaintiffs' injuries).

In the case of a young child, however, other requirements for witness competency become salient, namely, the ability to accurately perceive what is happening around one, the capacity to recall what happened in the past, and an understanding of the difference between the truth and a lie, along with an appreciation of the obligation to tell the truth.  In ordinary adult witnesses, these abilities are all clear or assumed, but young children are often as yet unable to accomplish these rudimentary cognitive tasks that are necessary to being able to testify helpfully for the jury.

When a judge finds that a particular child is incompetent to testify, then, the judge has made a determination that even though the child may be capable of communicating, he does not meet some threshold of ability to take in reality, to remember it from one point to the next, or to convey it truthfully, with an understanding of the meaning and importance of telling the truth while under oath.

Given this sort of determination by the judge, it may seem odd that third parties would then be allowed to repeat the out-of-court statements of the very person who has been deemed insufficiently capable of observing, remembering, and communicating to be able to come before the jury and testify himself.  If he is not sufficiently worthy of being heard to testify, then how can his earlier out-of-court statements be considered worthwhile?  This question, in fact, seems apt regardless of how we resolve the constitutional issue of whether the out-of-court statements trigger the Sixth Amendment right to cross-examination.

One response might be to say that it is precisely the child's incompetence to testify that makes it acceptable to have third parties repeat his statements in court without there being an opportunity to cross-examine the speaker who made those statements.  Since he cannot testify, the child is by definition, incapable of testimony, and his earlier assertions therefore cannot possibly be "testimonial" for purposes of the Sixth Amendment.

This response may be correct, for Sixth Amendment purposes, but it still does two things:  it begs the question why a testimonially incompetent witness is being allowed to offer his (presumptively) incompetent observations and memories through a third party at the trial, when he may not do so directly from the stand; and it suggests that the Sixth Amendment right of confrontation may be an inadequate protection, if it only provides a right to cross-examine statements that are sufficiently reliable and useful to qualify the speaker as a witness but leaves unexamined the words of a person who has been disqualified from taking the witness stand.  In other words, if the Court were to deem the out-of-court statements of a disqualified witness ipso facto nontestimonial and therefore admissible in virtue of the speaker's incompetence, then this in itself suggests that Confrontation Clause doctrine leaves something to be desired.

I raise these issues here in a preliminary fashion and do not offer any definitive answers.  I would suggest, however, one potential response to the quandary. I would point out that the out-of-court statements of incompetent people (whether of children, impaired elderly, or extremely disabled adults) can provide important information about the abuse and mistreatment of vulnerable populations.  This is why if a child -- even a very young child -- tells the police that his parents are hurting him, then the police will and ought to look into that claim rather than ignore it on account of the child's relative incompetence.

By the same token, and despite the flawed nature of communication by very young children and mentally impaired adults, it is important for fact-finders in abuse cases to -- in some way -- hear from the victims of the alleged abuse. Introducing the words of such victims through third parties, who can provide context, offer any proper skepticism, and present potential corroboration for what they heard from the victim, can be quite useful.

Stated differently, a presumptively incompetent witness -- one whose "under oath" testimony would not be remotely comparable to the sworn testimony of an adult -- should not be completely silenced in a proceeding to determine what happened to him.  His statements to his teachers may be something less than "testimonial" -- in part because he is so young and incapable of meeting the perceptual, memory, and sincerity burdens of a testifying witness -- but they are worth more than nothing.  In a case such as this, jurors will surely take into account the fact that the victim is not testifying and may count that fact against his credibility. But because the victim did speak to a teacher, and the teacher had the opportunity to assess the child's capacities at the time of the statement -- it seems just that the jury, in deciding whether or not the child was in fact victimized by the defendant, should have this bit of evidence, along with other evidence of the misconduct, at its disposal.