Thursday, October 30, 2014

Is There Any Risk of Ebola Transmission from an Asymptomatic Person?

by Michael Dorf

Absent breaking news that takes me in a different direction, I expect that next week I'll have another Ebola quarantine column on Verdict that attempts to put some of the legal controversy in a broader context, but here I want to note my frustration over the failure of even the relatively responsible media coverage of the issue to address what seems to be an important question in evaluating the rationality of the state quarantine measures that are stricter than the recommendations of the CDC. The question is this: Is there a non-negligible risk of spreading the virus from an Ebola-infected person who is just on the cusp of developing symptoms? The issue is relevant to the wisdom of the quarantine policies and presumably would also be relevant to potentially imminent litigation between nurse Kaci Hickox and the state of Maine.

According to a literature review on the CDC website, the Ebola virus level in the blood of a person with an ultimately fatal infection peaks about five days after the onset of symptoms, as revealed in the following chart included in the CDC paper:


Now it's important to note that the y-axis is the log of the viral load, which means that viral load increases exponentially. Another way to say that is that if the graph above plotted viral load rather than log(viral load) as a function of time, it would be much more sharply peaked.

According to the CDC and every other source I could find, an asymptomatic Ebola patient is not contagious, while a patient who is several days into the symptomatic phase of infection is contagious to people who are in close proximity, for two reasons: (1) as reflected in the graph above, his viral load will have peaked; and (2) the later symptoms include vomiting, bleeding and other discharge that will more likely expose others to infection.

These facts seem to support the CDC approach as against the stricter quarantines in Maine, New Jersey, and some other states. If a person cannot spread the disease before developing symptoms, the logic goes, then he or she should not be subject to the serious deprivation of liberty of a quarantine (even a home quarantine) until the onset of symptoms.

But we might worry about what the patient does while not quarantined. Under the CDC protocol, a patient takes his temperature twice per day, and if he detects a fever within the 21-day incubation period, he calls himself in for treatment. (This was the protocol followed by Dr. Spencer in NYC.) Let's suppose that a health care worker returning from Liberia follows this protocol and gets a normal temperature reading at 8 am. She goes out about her daily routine, returning home to take her temperature again at 8 pm. If the health care worker was just on the cusp of developing symptoms right after she took her temperature, her viral load could roughly triple before she takes her temperature again.

Here's why: As I read the chart above, the log(viral load) just before symptoms develop is 4.6. A day later, the log(viral load) is 7.2. Thus, (assuming linearity to first order) 12 hours after symptoms develop, the log(viral load) is 5.8. That's a change of 1.2 in log(viral load), meaning that the viral load itself more than triples (because e to the 1.2 power is 3.32.)  If you didn't follow that, just trust me. I used to be a scientist.

Note that the detection threshold is lower than the viral load at the onset of first symptoms, so it's also possible that our hypothetical infected patient would have tested negative for Ebola just two days before the onset of symptoms.

Accordingly, it is possible for a health care worker to have a negative Ebola test on (say) Day 15, a normal temperature reading on the morning of Day 17, and yet have a sufficiently high viral load that her bodily fluids would spread the disease if they came in contact with others while she is out and about on Day 17 unknowingly having Ebola.

It still seems quite unlikely that such a person actually would have her bodily fluids come into contact with others, but even that's possible. Suppose she is in a car accident and paramedics responding to the scene (and not taking Ebola precautions because they do not know that she is infected or even at risk of being infected) have contact with her blood. Again, it's highly unlikely that any particular Ebola-exposed individual would be in such an accident on just the one day when her viral load goes from undectable to detectable and symptomatic, but it's not impossible.

Whether that small but non-zero risk of transmission from an asymptomatic Ebola-exposed individual justifies a quarantine depends on a number of factors, including, of course, the infringement on liberty and the deterrent effect of an overbroad quarantine on health care workers going to west Africa to help the people most at risk (both for their sake and for the sake of people in the rest of the world who benefit from stopping Ebola's spread at the center of the outbreak).

In addition, we might also consider population density in evaluating whether a quarantine can be justified. Contact tracing has to be much easier in Fort Kent, Maine than in New York City, northern New Jersey, or Chicago. The fact that Hickox is known to people in her community will mean that in the extremely unlikely event that she is in an accident of the sort described above in the crucial window of time, local authorities will know who has been exposed. By contrast, with orders of magnitude more people, the likelihood of any particular person exposing others is greater in a high-population density locale, as is the difficulty of containing that exposure. Accordingly, even if the New York, New Jersey, and Illinois quarantine measures are ultimately unjustified, they do seem easier to justify than the one in Maine and similar places.


***** Update: A reader points me to a very interesting study that found that in West Africa, risk of general transmission is much higher after Day 4 of symptoms than earlier. The finding is consistent with my analysis above because the study does not say (and as an epidemiological study probably cannot say) whether the effect is due to the later symptoms that make it much more likely for body fluids to come out of an infected patient or due to higher viral load. I pretty strongly suspect it's the former. But whatever the mechanism, as the authors conclude, if waiting for the onset of symptoms before isolating people is an effective strategy for containing Ebola in Africa, it's even more likely to be effective here, even in cities.

Wednesday, October 29, 2014

"Yes Means Yes" and Preponderance of the Evidence

In my Verdict column for this week, I discuss the California "yes means yes" law, which includes a variety of provisions that post-secondary-school educational institutions in California must adopt in their campus codes to maintain students' eligibility for state financial aid.  One provision requires that codes define "consent" to sexual activity as an affirmative verbal or non-verbal behavior indicating "yes" rather than as the absence of any statement or conduct conveying "no."  In my column, I talk about why this definition of consent matters, and I discuss some of the criticism that has been leveled at it.  In this post, I want to focus on a different feature of the California law, one that requires a "preponderance of the evidence" standard of proof in campus sexual assault cases.

Our legal system includes two primary standards of proof, by which a party that bears the burden of persuasion must convince the trier of fact that his, her, or its version of the facts is accurate: preponderance of the evidence and beyond a reasonable doubt.  Proof by a preponderance of the evidence amounts to proof that your version of events is more likely to be accurate than is your opponent's version of events.  If you are a plaintiff in a civil case, preponderance will ordinarily be your burden.

Beyond  a reasonable doubt is, by contrast, an extremely heavy burden that is typically borne only by the prosecution in a criminal case.  To obtain a guilty verdict, the prosecution must prove beyond a reasonable doubt that the defendant is guilty of each element of the offense charged.  This burden is constitutionally mandatory in criminal cases, as a matter of Due Process.

In between these two burdens lies "clear and convincing evidence."  In some classes of civil cases, the party that bears the burden of persuasion must convince the trier of fact that his, her, or its version of events is true, and the proof must be more than just enough to get over the 50/50 preponderance of the evidence hurdle.  At the same time, the proof need not be strong enough to obtain a conviction in a criminal case.  One example of an action that -- as a matter of constitutional law -- requires proof by clear and convincing evidence is civil commitment, in which someone will be confined as mentally ill and dangerous.  Though the incarceration here need not be for committing any crime, it nonetheless constitutes a sufficiently grave deprivation of liberty to require something more than preponderance of the evidence as its standard of proof.

A number colleges have voluntarily applied a "clear and convincing evidence" standard of proof in disciplinary cases, even though there is no constitutional law that requires that they do so.  For such colleges, the "yes means yes" law in California poses a potential challenge:  a college that adopts the new sexual assault provisions must either lower the standard of proof for all disciplinary actions, or it must accept a different standard of proof for sexual assaults than it has for other sorts of campus code violations.

Some critics have attacked the "yes means yes" law (as well as campus codes outside the State of California that conform to its provisions) for, among other things, providing such a low standard of proof for sexual assault complaints on campus.  The primary argument is that being found to have sexually assaulted a fellow student, regardless of the penalty, is extremely stigmatizing and can effectively end a young student's career.  Therefore, critics argue, the burden of proof ought to be higher than a preponderance of the evidence, just as it is in other cases.

One problem with this argument, however, is that it proves too much.  In virtually any civil case that a plaintiff brings against a defendant for an intentional tort that also violates the criminal law, a finding for the plaintiff will likely generate the kind of stigma associated with a conviction for the offense.  For instance, if Plaintiff's estate sues Defendant for the wrongful death of Plaintiff resulting from Defendant's having intentionally stabbed Plaintiff to death, then a finding for Plaintiff's estate will certainly carry a great deal of stigma.  Indeed, upon hearing about the verdict, many people would regard Defendant as a murderer, notwithstanding the fact that there has been no literal murder conviction but only a finding of wrongful death in a civil case.

Nonetheless, the burden of proof in such a civil case (as well as in other similarly serious civil tort cases) remains preponderance of the evidence.  O.J. Simpson, for example, though he was acquitted of the murder of his ex-wife, Nicole Brown, and her friend, Ron Goldman, was found liable for wrongful death in a civil action by Ron Goldman's father, Fred Goldman.  One explanation for the different verdicts was the fact that the burden of proof is so much greater in a criminal case.

Beyond the simple fact that burdens differ for civil cases -- even when the conduct is actually criminal too --  there is a reason for the different burdens in the two kinds of cases.  Criminal defendants are subject to incarceration in a jail or prison, whereas civil defendants do not suffer this sort of grave deprivation of liberty at the hands of the State. While it may be "better that ten guilty persons escape than that one innocent suffers," it does not follow that it is is better that 10 guilty people be insulated from any kind of financial or other civil accountability for their actions than that one innocent person be required to pay for a harm he did not commit.  Why not?  Consider the downside of erroneously rejecting a complainant's case in a campus rape situation.

When a true complainant loses her case against an alleged attacker, there is in fact a tremendous cost. The finding of "not guilty" is very stigmatizing to the complaining witness -- particularly if such a finding implies an embrace of the idea that the witness's accusation was a lie, which it will in many sexual assault cases.  Furthermore, the erroneous finding of "innocence" leaves the true victim having to cope with her attacker's "vindication" by the system.  And when the complaining witness and the accused are both college students, then the victim will have to live with having her attacker in close proximity on campus, where he can instill fear in her, humiliate her, and just as surely ruin her life by his mere presence as she could ruin his with a finding of guilt.

The sexual assault victim whose claim is erroneously rejected might indeed be motivated to leave school for her own mental health, given the toll that living near one's rapist will take on her.  And when the failure to find her assailant guilty is a function of the "clear and convincing evidence" standard, then that result -- her effective expulsion from the school -- would be directly attributable to the campus code and its defendant-generous standard of proof.

I think our tendency is to assume that the only costly outcome in litigation is a false finding of guilt, but that is not the case.  And when the consequences of finding guilt are less extreme than jail or prison, as they are in a campus setting, it is legitimate to conclude that the standard of proof ought to be a preponderance, so that the odds of getting it wrong in favor of the defendant are only slightly greater than the odds of getting it wrong in favor of the plaintiff, just as they would be in a typical civil case for an intentional tort.

One could, of course, quarrel with this state of affairs and demand that all intentional torts be subject to a higher standard of proof.  But one must acknowledge in doing so that this would require a substantial departure from existing law.   Barring such a departure, it is no longer plausible to argue that there is anything uniquely unfair about a preponderance standard in campus sexual assault cases, which are fundamentally civil in the range of available consequences.

Why, though, should the standard be different for sexual assault cases compared to others?   One answer is that it needn't be.  If uniformity is a priority, there is nothing to stop a college from judging all campus code violations by a preponderance standard.  If, on the other hand, a school chooses to keep preponderance for only sexual violations, that choice would be legitimate too.  As we can ironically see from the very people complaining about the reforms at issue, people -- and thus potential fact finders -- take a singularly skeptical and suspicious view of rape complaints.   Given such skepticism, it might be necessary to have a less demanding standard of proof in these cases.

When people are differentially reluctant to believe credible testimony by a rape victim, a promise to protect women (and men) from sexual assault on campus may require a standard of proof that accommodates this reluctance.  A preponderance standard may make it possible to take action against those who threaten the security and equality of all students seeking a college education, and that is not only a worthy objective but, as I have explained, a legitimate means of doing so as well.



Tuesday, October 28, 2014

Substance and Process and Efficiency in Law Schools

-- Posted by Neil H. Buchanan

Last night, I was talking with a professor who is the vice provost of a pharmacy school at a top research university.  She talked about the process of educating her students, and then she noted sardonically that she always hears the same things from her students' potential employers: "Your graduates can't write, they can't think, they're not ready to go to work.  You have to change everything you do."  I repeat, this was a pharmacy professor; but readers of this blog could be excused if they assumed that this was a law professor who was talking.  If misery loves company, I was smitten.

For roughly the past five years, legal academics have been running for cover, issuing mea culpas and promising to make their students "practice-ready."  The idea, in its extreme form, is apparently that having students learn substantive law is not the most important part of our job, but instead that they should be taught where to file forms.  I have written occasionally about some of the crazy, misinformed overreactions against "the law school model" (see, e.g., here), suggesting that the complaints are mostly a matter of misunderstanding what any professional school could or should do.  At long last, however, it appears that the legal academy is starting to find its voice, emerging from its defensive crouch, and making an affirmative case for what we do (and how we change).

For example, the new dean here at GW Law, Blake Morant, is the President-Elect of the Association of American Law Schools, and he is dedicating his term to mounting a strong, affirmative case for legal education.  Professor Jennifer L. Mnookin, who won this year's Excellence in Teaching prize at UCLA's law school, used her speech at the award ceremony for that prize to respond to the pernicious idea that law professors' "chief function is to make our students, as we often hear it put, 'practice ready on day one.' "

Similarly, Professor Dave Hoffman recently wrote a wonderful post on the Concurring Opinions blog in which he decried the "faintly defensive and catastrophic" tone of the response by law schools to the much-hyped downturn in legal hiring.  He notes that the practice-ready movement essentially surrenders a key claim, confessing that what we have been doing for all these years is (and maybe always has been) wrong, wrong, wrong.  As he notes, "that position is profoundly stupid, not to mention self-defeating."  Most importantly, it might cause us to stop doing things that we do well, and that are essential to training lawyers, but that somehow do not look like they make people "practice-ready."

A good example of what Hoffman (and Mnookin, and Morant, and I) are thinking about is a recent blog post by a legal consultant and former general counsel, who decries the "inefficiency" of legal education.  Before addressing the substance of his comments, I should note my delight in seeing him use the words efficient and inefficient in their common, everyday sense, rather than in the economic sense of "Pareto efficiency," which I have criticized many times here on this blog (see, e.g., here).  The blogger's complaint against legal education is quite simple: We are "teaching inefficiency" because we are supposedly training students to waste time.  That claim is wrong, but at least it has the virtue of being clear, and of not relying on an ultimately vacant notion of economic efficiency.

And let us be clear.  The practice of law involves a very large amount of old-fashioned inefficency.  For example, for nonprofessional reasons, I recently sat in on a "scheduling hearing" at a Maryland circuit court.  A motley group of clients and lawyers dutifully filed into a courtroom at 8:30am on a Monday, waiting while the judge dealt sequentially with each case, not on the merits, but simply asking the lawyers and clients if they would be available to meet on a particular day and time.  When any of the parties said "no," the judge said, "OK, then how about ... ?"  A lawyer told me that judges are very unhappy when clients do not show up at such hearings, so each vignette involved at least four people and a judge negotiating over times to meet in the future.

Obviously, all of this could be done online.  Even before the internet, doing this in a legal hearing was a wasteful way to proceed.  Having people add to the traffic nightmare in DC simply to sit in front of a judge for a few minutes of process is ridiculous, especially since the time sitting in the room (not just the time in front of the judge) is billable for the lawyers.  Yet the legal system persists in its inefficient ways, years after law schools have gone to online course registration, and professors use Doodle polls to schedule meetings and make-up classes.

But that blogger's claim is that law schools uniquely teach lawyers to be inefficient.  What is the substance of that claim, which includes the assertion that law professors supposedly give our students "no exposure to lean thinking in combination with the practice of law" (emphasis added for ironic effect)?  The author of the blog post tells us two things.  First, a very important project on which this lawyer once worked "was 80% process and 20% substance."  What does that mean?  "We had a complicated, large set of exhibits. A lot of the work in getting the license done related to these exhibits, which meant a lot of process control."  Plus, "[w]e also had time pressures to get the license done, putting further pressure on the process."

As someone who teaches 99% substance, and who has never been a practicing lawyer, I am either the least qualified, or the most qualified, person to respond to this claim.  Certainly, if my JD had included classes that were all like my Federal Income Taxation class -- a doctrine-filled class that involves statutory interpretation, case reading, and working through examples -- then I would not have been trained in "process," whatever that might mean.  (But my classmates and I certainly did learn about time pressures, I must say.)  Fortunately, my law school (like all law schools) provided a variety of different types of courses.  In my final semester, for example, I took a Trial Advocacy class that was taught by a top death-penalty litigator, where I learned how to organize and argue a case for trial.

Is it possible that there are people who never take a law school class with any "process" involved?  I suppose, but it seems unlikely.  Moreover, even if -- and I will have to take this on faith -- law is 80% process, that does not mean that legal education should be 80%, or even 20%, process.  Frankly, if law schools devoted large amounts of time to instructing students on where to find the forms in a courthouse to file a motion, or even to creating and organizing exhibits, I would think that we would then actually be guilty of not giving our students their money's worth.  We teach them how to know what to put in their exhibits, which requires doing what law schools currently do, and do well.

The complaining blogger/lawyer then shares a "pet peeve," in the form of a story about how accountants for a Big Four firm would consult with the lawyers in the tax department of his law firm, without consulting with the corporate lawyers in his law firm.  When the groups finally met, the corporate lawyers would "identify several fatal flaws in the plan almost immediately."  Why had that happened?  "[T]he tax practitioners knew nothing about and didn’t take the time to ask about, the corporate law aspects of what they proposed."  Why were the tax lawyers so bad at communicating with non-tax lawyers?  "They always responded, 'we were taught to look at the tax issues and let someone else think about the rest.' Not very efficient."

Well ... yeah!  It sounds like that firm was set up in a rather wasteful way, especially because this scenario supposedly played out "[o]n more than one occasion."  I suppose that it is possible that the firm's longstanding compartmentalization of lawyers into practice areas was originally caused by the way that those lawyers were taught in law school, but I cannot fathom how it is law schools' fault that a firm can continue to lose money (and be "not very efficient") by not learning from costly errors.  No professor can claim to know how things are done in every law school, but I simply find it implausible that tax professors teach their students that they will serve their clients well by ignoring the questions raised in corporate law, or vice versa.  My students can certainly testify that I spend a lot of time talking about contract law, family law, corporate law, and so forth in my basic tax class.

In the end, however, I need not claim that all law schools are doing this exactly right.  Maybe the blogger's suggested CLE-type seminar for law professors, encouraging us to remind students that real-world problems are not pure tort questions, or con law questions, or crim law questions, would do some good.  That, however, still leaves us with the ultimate message from Professors Mnookin and Hoffman: If this is the worst that law schools are guilty of, then we should be proud of what we do.

There is inevitable tension between what practitioners in any field want to see in their new hires, versus what the professional schools can and should teach their students.  As I have surveyed the complaints against law schools, however, I cannot help but get the sense that there are a lot of grand assertions -- law schools teach inefficiency, for example -- that are merely the latest version of the age-old complaint that not all lawyers come out of law school perfectly formed.  They do not, and they never will.  We can improve what we do, but on the evidence thus far presented, our substance-heavy focus is standing up very well indeed.

Monday, October 27, 2014

Quarantine Follow-Up: Yes I Said That But . . .

By Michael Dorf

A Wall Street Journal article today accurately quotes me but in a way that may inadvertently give the misimpression that I support aggressive quarantining of Ebola-exposed asymptomatic persons on policy grounds. Because I am not a medical or public health expert, I do not have a position on the best policy response to the Ebola risk. I write here to clarify my position on the constitutional issues I was addressing.

In my Verdict column on quarantines a few weeks ago, I explained that states clearly have the affirmative power to quarantine and that while some recent SCOTUS cases might be read to cast doubt on a federal quarantine power, the potential for movement across state (and national) borders places federal quarantine power squarely within the power to regulate interstate (and foreign) commerce. The WSJ article includes a quotation of mine to that effect. It states:
The state laws used to implement mandatory quarantines in New York, New Jersey and Illinois are clear and “there is no serious doubt about the affirmative power of either the states and the federal government to quarantine,” Mr. Dorf said.
Understood in proper context, this was simply a restatement of the position in my Verdict column: That states and the federal government have the affirmative power to quarantine, even though there might be valid individual rights challenges. A lay reader, however, might not realize the work that the word "affirmative" is doing there.

The story then goes on:
States can “go farther if they want to as long as it’s not completely divorced from reality,” said Mr. Dorf. For people that fail to follow a quarantine order, said Mr. Dorf, there are criminal sanctions similar to violating a court order, for example.
That statement may be mysterious even to a constitutional law guru, so it requires some more clarification. The reporter asked me whether the quarantine could be deemed discriminatory. I explained that constitutional law only forbids discrimination on illicit grounds (like race) or discrimination that is completely irrational. As I recall, the "not completely divorced from reality" line was a description of the rational basis test.

But even so, mightn't heightened scrutiny apply to a quarantine on the ground that it infringes the fundamental right to liberty from physical restraint? Yes, for sure it could, as I noted in the Verdict column, but even when courts apply heightened scrutiny based on fundamental rights, they typically give broad deference to the medical judgment of government authorities. The reporter also asked me whether the Christie/Cuomo quarantine was unconstitutional on the ground that it was more stringent than the CDC/Doctors-Without-Borders guidelines. I said that the additional breadth could make the Christie/Cuomo quarantine questionable on policy grounds but not necessarily unconstitutional.

Finally, I'm pretty sure I did not say that there are criminal sanctions available for violating a quarantine. There might be but I haven't looked at the relevant statutes. What I said was that if a quarantine is valid, then the state may use all of its regular remedial tools to enforce it, including imprisonment, as with the violation of a court order.

Can State Courts Gratuitously Give Greater Force to Federal Court Precedent than Required?

by Michael Dorf

A little over a week ago, I was a guest on an episode of the Oral Argument podcast hosted by law professors Christian Turner and Joe Miller. My invitation was inspired by two blog posts (here and here), in which I confidently asserted what I took to be the unarguable fact that lower federal court precedents on federal law do not bind state courts--except as a matter of preclusion in subsequent cases involving the same parties. I acknowledged that there are good prudential reasons for state courts to pay careful consideration to federal appeals court rulings by courts with jurisdiction that includes their states, but that as a formal matter, there is no binding precedent.

In the course of the podcast, I provided my explanation for why lower federal court precedent doesn't bind state courts, and the Oral Argument link above itself provides some additional links relevant to the issue, including a concurrence by Justice Thomas in Lockhart v. Fretwell, in which he makes the core point as follows:
[T]he Court of Appeals [for the Eighth Circuit] appears to have been under the impression that the Arkansas trial court would have been compelled to follow [an Eighth Circuit precedent] by the Supremacy Clause. It was mistaken. The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located. [Citations.] An Arkansas trial court is bound by this Court's (and by the Arkansas Supreme Court's and Arkansas Court of Appeals') interpretation of federal law, but if it follows the Eighth Circuit's interpretation of federal law, it does so only because it chooses to and not because it must.
During the podcast I got a little bit of pushback from Professors Turner and Miller against what I'll cheekily call the Thomas/Dorf position. I won't offer a full defense of that position here, except to say that Congress could have authorized appeals from the state courts to the lower federal courts on questions of federal law (as stated by Justice Story in the landmark Martin v. Hunter's Lessee); indeed, Congress perhaps even could have required state courts to follow lower federal court precedents on federal law; but there is no reason to think that Congress ever did obligate the state courts to follow lower federal court precedent; and given the Madisonian compromise (i.e., the fact that Article III leaves to Congress the decision whether to create any lower federal courts or instead to leave federal claims to be litigated in the first instance in the state courts, absent the limited original jurisdiction of the SCOTUS), the default assumption must be that state courts would be bound by federal law decisions of the SCOTUS only. Where there is a departure from this scheme (as there arguably is for lower federal court habeas corpus "review" of state court decisions), it is pursuant to a statute.

But now I want to probe a bit further and ask whether a state high court could decide that it will be bound by lower federal court decisions even though it is not bound to do so. A 2013 decision of a South Carolina intermediate court of appeals states that Fourth Circuit decisions on federal law are binding on the South Carolina courts. That may be a mistake as a matter of South Carolina precedent. The ruling cites a 1946 South Carolina Supreme Court case that says that federal authorities "are controlling of the meaning and effect of the Federal Constitution," but it is not entirely clear that the SCSC meant that lower federal court authorities are controlling. True, the balance of the opinion cites both Supreme Court and lower federal court decisions, but I read it as probably treating only the SCOTUS rulings as fully binding. So the recent statement by the South Carolina intermediate court of appeals may not even be correct as a matter of South Carolina precedent. Moreover, it's quite possible that if it is correct, that's because the South Carolina courts are making the same mistake that the Eighth Circuit was making in Lockhart v. Fretwell, i.e., perhaps the South Carolina courts mistakenly believe that they are obligated as a matter of federal law to give binding effect to Fourth Circuit rulings.

But consider another possibility that was raised during the podcast. Suppose that a state high court were to say something like this: We know that lower federal court rulings do not formally bind us but in the interest of comity and prudence, we hereby adopt a rule requiring courts in this state to give binding effect to the federal law rulings of the federal appeals court for the Circuit that encompasses this state. Even Justice Thomas could be read to say that this would be permissible--although it's not entirely clear: When he says that Arkansas can "choose[] to" follow Eighth Circuit precedent, he could mean that Arkansas courts could follow a self-imposed rule of considering themselves bound by Eighth Circuit precedent, or he could mean only that Arkansas courts could choose in any particular case to reach the same result as the Eighth Circuit, after applying their own best analysis of the relevant sources.

Let's put aside what Justice Thomas might have meant. Could South Carolina or any other state voluntarily adopt the practice I've described on comity, prudential, or other grounds? I said in the podcast, and I'll repeat now, that I think the answer is no. Why not? Most fundamentally, because  the question of whether state courts are bound by federal appeals court rulings on questions of federal law is itself a question of federal law.

One might think that, just as a state high court can voluntarily decide whether to construe its constitutional provisions in "lockstep" with the parallel provisions of the federal Constitution or to give greater protection to rights as a matter of state law, so too here, a state can decide to be "more bound" by federal law than is strictly required. But the analogy doesn't hold. A state high court that gratuitously decides to accept (or to go beyond) federal definitions of its state law terms is making a decision about how to understand state law. By contrast, a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control.

I reach this conclusion with considerable confidence but not with 100% confidence, because it's not quite true that federal law determines everything about how state courts make rulings of federal law. Suppose a federal issue being litigated in state court and that some factual question is crucial. The state court will apply state rules of evidence and procedure (absent special considerations that sometimes arise under the FELA and the so-called "reverse-Erie" doctrine). Thus, one might think that there is some state leeway to decide how to decide questions of federal law.

Even so, I don't think that leeway extends to state court discretion over what authorities are binding in deciding the substance of federal law. Recognizing longstanding difficulties in drawing sharp distinctions between substance and procedure, I would say that the state court's obligation in deciding the content of federal law is to make its best efforts to determine the content of federal law, not to gratuitiously outsource the job. After all, if the South Carolina courts can gratuitously decide to accept the rulings of the Fourth Circuit as definitive, then they would seem to be able to accept some other body's determinations, like the Second Circuit's, or the views expressed on this blog. In each case, the South Carolina courts would be violating the obligation (under the Supremacy Clause) to be bound by federal law, not somebody else's understanding of federal law, even if that somebody else is learned in federal law.

Finally, I note two points about the foregoing analysis. First, it does not have a systematic liberal or conservative bias. A state court that gratuitously chooses to be bound by federal appeals court precedent will skew liberal when the federal appeals court precedent is more liberal than the results that the state court would produce absent the practice, and more conservative when the federal appeals court precedent is more conservative.

Second, a state court that wants to follow federal appeals court precedent probably can get away with doing so in most cases. That's because the only mechanism for correcting the state courts is review on certiorari by the SCOTUS. But if the SCOTUS grants cert to review a case from such a state court, the issue will no longer be whether the state court was right to follow the federal appeals court precedent. Instead, the issue will be whether the precedent the state court followed was correct.

[Update: You can hear some further discussion of this question in the opening minutes of the new episode of Oral Argument, featuring Professor Steve Vladeck as the guest.]

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 he is 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 1980'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 White 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.