Wednesday, February 03, 2021

Simplicity, Clarity, and Justice

 by Michael C. Dorf

My latest Verdict column uses the border wall litigation before SCOTUS to lament the incredible complexity of federal court procedural law. I direct interested readers to the column for further details, but here's the barebones summary of the background: (1) Trump declared an emergency to move money Congress appropriated for other purposes to border wall construction; (2) environmental and other public-interest organizations that would be injured by the border wall sued to block it and won in the 9th Circuit; (3) Trump's DOJ went to SCOTUS arguing that plaintiffs lack a cause of action and do not fall within the zone of interested protected by the statute on which they rely; (4) plaintiffs, with support from amici including yours truly, argued that where, as here, plaintiffs seek to enjoin unconstitutional action, they do not rely on a statute for relief and thus have an equitable cause of action to which the zone-of-interest test does not apply; (5) President Biden rescinded the wall funding, and his acting SG, with the plaintiffs' consent, asked the Court to take the case off the calendar.

As I explain in the column, the Trump DOJ's argument contesting cause of action and invoking the zone-of-interest test is easy for the casual reader to mistake for an argument that the plaintiffs lack standing. Although I don't go into the point in the column, the zone-of-interest test itself can be conceptualized as a kind of limit on third-party-standing. I won't go deeply into that point here either, except to say, as I do in the column, that there are a great many procedural doctrines that limit (or grant) access to federal court, each with sub-doctrines and sub-sub-doctrines. Citing Jerome Frank, I acknowledge that it is naive to think that the law can always be clear and simple. Nonetheless, I say, the complexity of federal procedural law goes beyond what is needed to keep up with life's complexity.

Here I want to briefly elaborate on a point I make near the end of the column. I note there that "simplifying the law will not necessarily clarify it. Indeed, the two goals often work at cross-purposes. To clarify the law requires specifying the outcome in a great many different circumstances, which will often require a detailed, that is, long and complex, list of rules, not a short simple rule or standard." My suggestion will be that there is often a tradeoff among simplicity, clarity, and justice.

Rules and standards provide a classic example of the tradeoff between clarity and simplicity. A standard that says "drive safely" is very simple but highly indeterminate. By contrast, a detailed traffic code will typically be clearer across a whole range of cases. That's not to say that it will be perfectly clear or clear in all circumstances, but other things being equal, rules are clearer than standards. That's what makes them rules.

Whether rules or standards better serve justice is highly context-dependent. Where the law-applier has good judgment, standards will be better, other things being equal, because rules are typically both under- and over-inclusive relative to their background justifications, thus leading them to misfire. By contrast, a wise law-applier exercising discretion with an eye towards justice, will come closer. However, where there is reason to distrust the law-applier or to worry about uneven application of the law, rules will come closer to justice despite their under- and over-inclusiveness. Any reasonably sophisticated legal system or sub-system will deploy some mix of rules and standards.

The familiar division between rules and standards does not exhaust the possible range of conflicts between simplicity and clarity. After all, there can be simple rules, not just complex ones.

Nonetheless, in public debate, one sometimes sees a conflation of complexity and opacity. For example, legislators who oppose a bill will sometimes make a great show of how long the bill is, pointing out that no individual legislator has had a chance to read it fully. Putting aside whether it's important for legislators (as opposed to their professional staff) to read and understand statutory language, a bill's length could signal that buried somewhere within it is pork-barrel spending or some other under-handed deal that the bill's supporters have tried to hide from public scrutiny. But it's also possible that length reflects the legislative drafters' care in trying to anticipate a wide range of circumstances to which the bill will apply and to address them with care. In spelling out how the law applies in more rather than fewer words, the bill's length could be achieving greater clarity than a terser version would.

Another stunt favored by some politicians is to identify spurious or superficial complexity. Proponents of a flat income tax make this move. Other things (such as available deductions) being equal, a progressive income tax with, say, five brackets, is somewhat more complicated to describe than is a flat tax with a single bracket, but is no more complicated to use. To calculate a flat tax, one multiplies adjusted income by the flat tax rate. To calculate the graduated tax, one looks up the figure for that adjusted income on the tax table. Either operation takes a few seconds. Nonetheless, politicians with other agendas sometimes rail against the tax code's complexity but then propose to simplify it by reducing its progressivity. That's at best a non sequitur and more likely a deliberate deception.

Finally, I'll add a personal note. Next week I'll start teaching this semester's version of my Federal Courts class, as I have for many years. Fed Courts is considered a "hard" class for students, because the law is complex. It's also hard to teach because to do a good job one needs to clarify the law without over-simplifying it. I'll close today's post with three paragraphs that I include in my syllabus:

Federal Courts is first and foremost an intellectually demanding course. It demands and rewards the ability that distinguishes lawyers from laypersons and excellent lawyers from average and even very good ones—namely, the ability to hold in one’s mind numerous details of different cases and rules, and to manipulate them into patterns at first invisible to the naked eye. There is in Federal Courts more than a little of the challenge and the fun of solving a difficult puzzle.

Nonetheless, it would be a serious error to conclude that Federal Courts is only an intellectual exercise. The stakes for real people are enormous. We ask important questions, including: whether federal courts can hear challenges to partisan gerrymandering; whether there is a sound justification for the qualified immunity that courts have bestowed on government officials sued for violating civil rights under a statute sometimes called the Ku Klux Klan Act that was enacted during Reconstruction; whether Congress acted constitutionally in eliminating habeas corpus for non-citizens declared unlawful enemy combatants in the Military Commissions Act of 2006; whether electronic surveillance counts as an Article III injury to people who do not know whether their communications have been intercepted; and whether courts may create causes of action to enforce federal regulations. The doctrines we study in Federal Courts concern these and other issues implicating fundamental values.

More broadly, every issue we study in Federal Courts is ultimately a policy question disguised as a question about the allocation of decision-making authority: What actor—the Supreme Court, a federal district court, a state court, an administrative agency, Congress, or some other institution or person—has authority to resolve some dispute? That kind of question may seem less fundamental than the underlying substantive questions the law addresses. However, as most good litigators will tell you, the issues of allocation of decision-making power are frequently dispositive. Learn the material in this course and you will be well on your way to becoming a real lawyer.