Author Archive
Estrada and Taylor on Kagan
Kagan gets an endorsement from superstar conservative appellate litigator and Bush II appellate nominee (also my old boss) Miguel Estrada here (see last paragraph).
Plus, Stuart Taylor says Kagan’s nomination could mean a more conservative Court:
Commentators on the left . . . complain that Kagan never compiled much of a record of aggressively championing liberal causes during her years as a law professor. Some say she was too friendly as dean of Harvard Law School to conservatives and did not recruit as many women and minorities for the faculty as diversitycrats desired.
Speaking as a moderate independent, I like everything about Kagan that the left dislikes. To borrow from my friend Harvey Silverglate, a leading Boston lawyer who champions both civil liberties and an old-fashioned liberal’s brand of political incorrectness, ‘they want people who look different but think alike.’
Kagan seems to be a woman who thinks for herself.
Taylor also highlights what many libertarians will find most troubling about her record (other than strong hints of her lack of sympathy, albeit predictable for a Democratic nominee, with the litigation interests of the business community): her apparent endorsement of the Bush administration’s legal framework for detention of enemy combatants.
Kagan on Military Recruitment
Elena Kagan has been getting a lot of flak from the right for her position on military recruitment at Harvard. While the military’s don’t ask don’t tell policy is unjust, Harvard’s position on recruitment was also misplaced—and, were the question ever presented to my faculty, I’d vote against barring the military from recruiting at my law school for the same reasons as Ilya Somin.
But, although Harvard made the wrong call on recruitment (albeit one that, in fairness, is not attributable just to Kagan, but, reportedly, to an overwhelming majority of the Harvard law faculty), Kagan’s opposition to the Solomon Amendment, which conditioned federal funding on JAG recruiters’ access to campus, has much to recommend it from a libertarian standpoint, for the reasons put forward in Cato’s amicus brief in Rumsfeld v. FAIR, the case challenging the Solomon Amendment (which you can download here). (Disclosure: I co-wrote the brief when I was at Cato. As I recall, this was a controversial position within Cato, and I’d guess that remains true today. Cato’s current legal shop might well take a different view were the question presented to it now.)
True, the Supreme Court rejected our position 8-0. But it’s not the first time, and will be not be the last, that the Court musters eight votes for what some libertarians think is a questionable outcome.
And for the record, my view on Kagan—while she’s, as Kagan would say, “not my people,” she’s a top-notch scholar, a great Dean (who was very fair to faculty conservatives and libertarians), by all accounts an outstanding teacher, and likely to fall somewhere on the liberal continuum to the left of Breyer and to the right of Stevens. Could be worse!
A Contrarian Cheer for Twombly
My new article, Procedure’s Ambiguity (now up on SSRN and also available here) is a rare bird in the world legal scholarship: it defends the Supreme Court’s much-reviled pleading decisions, Bell Atlantic v. Twombly and Ashcroft v. Iqbal.
It is, in fact, a rare bird even in the small world of articles defending Twombly and Iqbal. Others claim these cases, by directing lower courts to dismiss implausible claims, will deter frivolous suits, save judicial resources, and the like. I find these defenses, while plausible, too speculative and take a very different tack–one that builds on the growing literature on so-called “pluralist” approaches to interpretation. Judicial pluralists favor interpreting ambiguous statutes in ways that mimic approaches to which interest groups would, hypothetically, agree. And Twombly and Iqbal, I argue, are cases after judicial pluralists’ own hearts: They reflect a fair compromise—one, I argue, that mimics the bargain different groups with a stake in procedural rulemaking would, if given the chance, reach among themselves.
The Ninth Circuit’s Controversial New Class Action Decision
The Ninth Circuit has issued its long-awaited en banc decision in Dukes v. Wal-Mart, a pathbreaking class action seeking relief from Wal-Mart for alleged gender discrimination on behalf of somewhere between 500,000 and 1.5 million women. The upshot: a 6-5 partial affirmance of one of the most questionable class certification approvals in recent memory.
The case is sparking considerable commentary: see here, here, and here, for starters. Cataloguing all the myriad questionable parts of the 135+ page decision, which range from the standard for admitting expert testimony in support of certification, to the permissibility of so-called “issue classes,” to due process restraints on award of class-wide punitive damages, would take a blog post rivaling the length of the Ninth Circuit’s own monster-of-an-opinion.
Here, though, are a few problems that pop out on first reading.
Twombly and Iqbal: Reality Check
In Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), the Supreme Court gave trial courts more latitude to dismiss a lawsuit at a very early stage, before the parties have had a chance to engage in discovery (the often lengthy and expensive fact-finding stage of civil litigation), if judges think the suit is not founded on “plausible” allegations of wrongdoing.
There’s a rich, angry debate about the effect the decisions will have on dismissal rates of meritorious suits in lower courts. But the consensus among academics seems to be that both decisions will trigger a sea-change in lower court practice—one deeply unfavorable to plaintiffs.
We won’t know the real effect of these decisions for many years to come. But a 2007 study by the Federal Judicial Center on the effect of a trio of similarly controversial 1986 Supreme Court decisions (known as the “Celotex trilogy”) raises questions about dire claims that Twombly or Iqbal will dramatically change lower court practice.
Marie Gryphon on “Loser Pays”
Marie Gryphon, of the Manhattan Institute (and a Cato adjunct scholar), has a terrific new paper advocating a “loser pays” system to deter frivolous lawsuits. Here are excerpts from the executive summary:
This study argues that loser pays could be an important part of a larger effort to reduce litigation costs, better compensate prevailing litigants, and better align tort law with its goal of deterring socially harmful conduct. A loser-pays rule would discourage meritless lawsuits, but because any such rule should also ensure plaintiffs of modest means but strong legal cases access to justice, our proposal calls for:
- A robust litigation insurance industry similar to those that now exist in other loser-pays countries; and
- A cap on recoverable fees to eliminate the incentive that large litigants might have to attempt to “buy a verdict” under loser pays.
This study explores in depth how a loser-pays rule would change litigation in America. It includes key findings about the likely effects of loser-pays reform and evaluates previous experiments with loser pays in America.
The Status Quo
This study delves into the available evidence about how the legal marketplace works, which lawyers file low-merit lawsuits, and how they stay in business:
- The subgroup of lawyers that file most nuisance lawsuits works to obtain settlements in weak legal cases before its members ever see a courtroom.
- The American system facilitates nuisance lawsuits, since the high cost of defending against weak cases gives defendants a strong incentive to settle.
- In contrast to nuisance suits, low-merit mass torts and class-action suits are able to attract some of the best lawyers in the United States because the potential damages stemming from these suits make them very lucrative, even when they are settled for a small fraction of the amounts demanded.
Effects of Loser Pays
This paper infers from its examination of the scholarly literature how loser pays would affect the American legal system:
- Loser pays would deter ordinary low-merit suits, but it would not discourage low-merit class actions to the same extent because the risk of enormous losses, rather than the costs of legal defense, is the primary source of pressure on defendants to settle.
Originalism vs. Class Action Reform
David Boaz once suggested that the Class Action Fairness Act—an important statute that federalizes lots of abusive lawsuits traditionally confined to states—gives federal courts power they shouldn’t have. In this article, I marshal new evidence of the Constitution’s original meaning that supports David.
In a nutshell: the evidence confirms an interpretation of the Constitution’s text advanced by (gasp!) Public Citizen’s litigation director Brian Wolfman. CAFA pins federal jurisdiction over state-filed class actions on the fact that many classes include members who are citizens of different states than the defendant. Congress, in turn, assumed these suits fall within federal courts’ jurisdiction over “controversies between citizens of different states.”
However, in congressional testimony on CAFA, Wolfman argued that proposed members of a class are not parties to a constitutional “controversy.” For reasons too technical to go into here, if Wolfman’s right that would punch a big gaping hole in CAFA, allowing plaintiffs’ lawyers to easily evade federal jurisdiction in lots of cases.
My evidence suggests Wolfman is correct—although Congress has the power to rewrite CAFA in a way that would make it constitutional. Unfortunately, as the article explains, a “fix” for CAFA is probably not politically feasible, at least in the forseeable future.
For more on the argument, which involves some pretty technical points of federal jurisdiction and class action law, see the abstract, posted here, and a longer excerpt from the article posted by Professor Larry Solum on his Legal Theory Blog here.
The bottom line: Tort reformers who are faithful to the original meaning of the Constitution must confront the uncomfortable fact that the Constitution takes key provisions of CAFA, the tort reform movement’s greatest legislative achievement, off the table.
SCOTUS Hearts Obama?
Will the Supreme Court be more, or less, of a check on the president during an Obama administration?
My guess: Less.
First, as Gene Healy notes, Barack Obama has every incentive to preserve and enhance the power of the president. His “Yes we can!” Justice Department will not be filing briefs with the Court telling it to take the president’s power away.
Second, the judges rumored to be on Obama’s short list for the Supreme Court, like Harvard Law Dean Elena Kagan, are hardly unfriendly to the presidency. As a scholar, Kagan is perhaps best known for her smart, nuanced 2001 law review article, Presidential Administration, which — while differing in many nuanced respects from Bush era legal framework for thinking about executive power — celebrates the president’s power to “jolt” bureaucrats “into action . . . [for] a distinctly activist and pro-regulatory governing agenda.” She argues that federal courts should interpret the president’s statutory authority in ways that facilitate and enhance, rather than limit, the president’s powers. Look for judicial appointments with similar views.
Third, my guess is that the Supreme Court as a whole, no matter who is on it, is likely to prove more congenial to Obama than it was to Bush. As Neal Katyal argued in the Cato Supreme Court Review, Jody Freeman and Adrian Vermeule expand in the non-Cato Supreme Court Review, and Jack Goldsmith suggests in The Terror Presidency, the Supreme Court’s pushback against the Bush administration is at least partly a response to the Bush administration’s tin-eared and sweeping claims in favor of “inherent” executive power. Even Bush’s Solicitor General, Ted Olson, is rumored to have advised this legal strategy would backfire by alienating the Court.
The Obama administration is likely to be smarter, by inviting the court to uphold various exercises of executive power on a case-by-case basis, rather than based on sweeping claims that the court must cede vasts swaths of decision making to the executive. The court likes the former kind of argument for obvious reasons — it requires the president to check back with the court on an ongoing basis. But don’t fall into the Bush administration’s mindset. A president who presents the court with smart, modest legal arguments for upholding his power don’t have less power. He probably will have more. As Katyal and others argue, the court may be more willing to give the President what he wants when the request is presented in a more modest fashion.
Fourth, remember that Justice Kennedy, the swing vote on the current court, famously votes his politics. My guess is he is likely to side more often with an administration he likes and trusts — and that he will have an affinity for fellow cosmopolitan Obama’s, at least on the foreign affairs and national security front.
I’m guessing, for all these reasons, that those expecting the Supreme Court to continue to act as a drag on the centralization of power in the presidency, as it generally has in the Bush years, are likely to be disappointed in the Age of Obama.
Save Wal-Mart, Save Class Action Law?
I’ve got a short Regulation Magazine piece on the notorious (or glorious, depending on your perspective) Dukes v. Wal-Mart case–a gender discrimination class action composed of as many as 2 million women, according to some estimates. You can read more about the case here and download my Regulation piece here.
Many believe the case is headed to the Supreme Court–if not this upcoming term, then the next. If it does, and if the Court takes up Wal-Mart’s constitutional arguments against certification, then, I argue, it might just set the stage for some far-reaching, and overdue, conceptual changes in the way we think about the constitutional rights of class action defendants. My piece uses Dukes as a springboard for sketching some of these defenses–admittedly quite adventurous–which just might become a bit less exotic if Wal-Mart succeeds.
Enemy of the People … ?
Below, Sigrid posts Walter Murphy’s much-blogged about claim that he has been watch-listed because of a speech he gave criticizing Bush’s constitutional record. Those interested in the story should also read the skeptical questions raised by Wired‘s Ryan Singel, a Watch List critic, about Murphy’s story, which are available here:
Woe be it for this blog to defend the country’s foolish watchlist system, but after having spent more than four years reporting on watchlists, filing Freedom of Information Act requests, and talking with persons flagged by the lists, I have never seen a single case of a person being put on the list for activities protected by the First Amendment. …
I’m not even certain that in this case Murphy’s name matched or was similar to a name on the list – which is what has snagged nearly every David Nelson in the country and what got Senator Ted Kennedy a dose of handheld wanding.
In this case, I would guess that Murphy was singled out randomly. He himself says he wasn’t flagged on the way back, which he almost certainly would have been if he were on the ‘selectee’ list. (The ‘selectee’ list directs airlines to single out that person for extra screening, while a related list, the ‘no-fly’ list directs airlines to keep a person off a plane.)
I’m open to any evidence that the government has watchlisted American citizens for exercising their Constitutional rights, but I’ve never seen it.
The left wants to believe it is living in some version of Orwell’s 1984. … Around these parts, we prefer to see the world through a Kafka and Gilliam kaleidescope.
More on Mass. v. EPA
ScotusBlog hosted a discussion of the Court’s environmental decisions this week, in which I participated. If you are interested in more legal analysis of these cases, you can access all of the ScotusBlog posts, pro and con, here. I also summarize my contributions to the discussion in a short podcast here.
Supreme Court to EPA: Hurry Up and Wait?
Lots of news outlets have been describing the Supreme Court’s opinion in Massachusetts v. EPA along the following lines: “Supreme Court says global warming is bad; tells EPA to fix the problem.”
Is that right? Not really.
In fact, if you read between the lines of the majority’s decision, its not clear that it will alter EPA policy one jot or tittle.
“Regulation,” under the Clean Air Act, can take a number of forms: It can take the form of declaring aspirational emission standards. Or it can take more draconian forms, such as looming technology mandates and imminent implementation deadlines, backed by tough civil and criminal penalties.
Even assuming that, after the Court’s decision yesterday, the EPA has to “regulate” in the sense of promulgating some GHG emission standards, the Court’s decision leaves the EPA with ample room to argue that it can defer deciding when and how to implement those standards in light of the potentially high and uncertain costs of implementation. Read the rest of this post »
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