Category: Supreme Court


How Should Courts Handle Cultural Dissensus on Summary Judgment?

That’s the deep question unanswered by last year’s Supreme Court decision, Scott v. Harris. As Dan Kahan announced here on Balkin, he, current guest-blogger Don Braman, and I have written a paper testing the majority’s view that no reasonable jury could or would find for the plaintiff after watching this videotape. The experiment we conducted was simple and intuitive: we showed the video to a 1,350 member subject pool and asked them about it. Our first circulating draft, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, can be downloaded here.

Overall, we found substantial support for the Court’s position: most members of the subject pool agreed with the majority about the risks posed by the police chase, the relative fault of the parties, and the ultimate questions of justification. But does majority support mean SJ is correct? Our thought was that that question can’t be meaningfully answered without some understanding of the characteristics of the minority of people who would disagree with the court. We wanted to identify who those people were and figure out whether there was any explanation that might explain their differing view of the tape besides that they are unreasonable. In particular, we wanted to test the hypothesis, grounded in cultural cognition theory, that the dissenters would not be random statistical outliers but persons disposed by shared cultural values and other characteristics to process visual information in the tape different from how the majority did.

ronOur results showed exactly that. Dissenters to the Court’s view of the facts and the appropriateness of summary judgment were linked by shared cultural styles that features a commitment to egalitarianism and communitarianism. By the same token, subjects who were strongly inclined to see things the Court’s way were linked by commitments to hierarchy and individualism.

Drawing on Joseph Gusfield’s work on “status collectivities,” we imagined four potential members of the venire: Pat, Ron, Linda, and Bernie. You can see their pictures to the left. Ron is a rich Goldwater republican from Arizona. Bernie is a socialist professor from Vermont with average income. Linda a social worker from Philadelphia, whose income is also at the mean. And Pat is the average American in every respect.

Using statistical simulations, we found that these individuals would have very different reactions to the video, based on their distinct forms of culturally motivated cognition of the risks involved. Take, for example, subjects’ reaction to the statement “[t]he danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger.” The graphic below illustrates how Ron, Linda, Bernie and Pat will respond.

New Picture.jpg

At least three-fifths (64%, +/- 4%) of the persons who share Linda’s characteristics “disagree”—about one-half either strongly or moderately—with the statement and thus the result in Scott. Those who hold Bernie’s characteristics see things in nearly exactly the same way as those holding Linda’s. Pat does agree with the Scott majority, although not without a bit of equivocation. There is a 60% (+/- 3%) chance that a person drawn randomly from the population would either moderately or strongly agree that the police were justified in using deadly force. There is, however, a 16% (+/- 3%) chance that he/she would be only “slightly” inclined to agree, and over a 20% chance that he/she would conclude upon watching the tape that use of deadly force was unreasonable. Finally, over 80% of the individuals who share Ron’s characteristics would find that the police acted reasonably.

What does dissensus of this character mean for how courts should resolve summary judgment motions in cases like, and unlike Scott? When minorities of the venire would process visual information in particular way, but that minority sees things the way they do because they are linked by values?

I’ll explore these questions in subsequent posts (as will, I think, Don.)

Previous Posts:

Hoffman, The Death of Fact-finding and the Birth of Truth

Crocker, Do Texts Speak for Themselves?

Kerr, What Are the Facts in Scott v. Harris?


Trust Law Meets Statutory Interpretation

For my final guest post, I want to talk about a case argued before the Supreme Court on Monday (November 26): LaRue v. DeWolff, Boberg, & Assoc. The case involves the appropriate interpretation of ERISA provisions governing individual pension plan participants’ right to sue the fiduciaries who administer their plans. While the subject might bore the average lawyer, as one who teaches courses both on statutory interpretation and on trusts, I find it intriguing. So, here goes: LaRue is a participant in an ERISA-covered Section 401(k) pension plan that is sponsored by his employer, DeWolff. DeWolff administers the plan and so qualifies as an ERISA fiduciary. Under the plan, participants may choose among several investment options and may direct DeWolff, as plan administrator, to invest the amounts allocated to their individual accounts in specified percentages. LaRue claims that DeWolff breached its fiduciary duties to him by failing to follow his investment allocation instructions, resulting in a loss of approximately $150,000.

Enter ERISA Sections 502(a)(2) & (a)(3), 29 U.S.C. 1132(a)(2) & (a)(3), under which LaRue seeks to have the plan reimbursed for that alleged $150,000 loss (after which the plan would allocate the funds to his individual account). ERISA Section 502(a)(2) authorizes a participant and others to sue a fiduciary (like DeWolff) to recover “losses to the plan” resulting from a breach of fiduciary duty. Section 502(a)(3) is a catch-all provision that authorizes a plan participant and others to sue for, among other things, “appropriate equitable relief . . . to redress” “any act or practice which violates” ERISA.

The issues thus become: (1) Does Section (a)(2) authorize a plan participant to sue for recovery that would inure to his individual account rather than to the benefit of the plan as a whole?; and (2) Does LaRue’s claim to recover the alleged $150,000 loss constitute a claim for equitable relief (as opposed to a legal claim for compensatory damages), as required under (a)(3)?

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Statutory Stare Decisis in John R. Sand & Gravel Co. v. United States

This past Tuesday, November 6, the Supreme Court heard head-spinningly complicated but (perhaps for this reason) thoroughly entertaining oral arguments in a case called John R. Sand & Gravel Co. v. United States. The case evolved as follows: John R. Sand & Gravel Co. owns a long-term lease on 158 acres of land in Lapeer County, Michigan. A pre-existing landfill located on this land is contaminated with illegally-accepted industrial waste. In 1992-1993, the United States Environmental Protection Agency (EPA) erected a chain link fence around roughly 60% of John R. Sand’s leasehold land and began excavating the contaminated waste from the site. Since 1992, EPA has at various times removed and relocated the fence to different parts of John R. Sand’s leased land and at one point obtained an injunction preventing John R. Sand from interfering with its remedial efforts. In 2002, John R. Sand filed a complaint seeking just compensation for the EPA’s “permanent physical taking” of portions of its leasehold land.

John R. Sand’s lawsuit is authorized under the Tucker Act, 28 U.S.C. §1491(a), which waives the United States’ sovereign immunity for claims “founded upon the Constitution” and confers jurisdiction on the Court of Federal Claims (CFC) to hear such claims. The government initially moved for judgment on the pleadings on the grounds that John R. Sand’s suit was time-barred under 28 U.S.C. §2501. Section 2501 provides that:

Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.

The CFC denied the government’s motion, finding that John R. Sand’s takings claims based on EPA’s construction of the chain link fence did not accrue until 1998. In subsequent pre-trial briefing, the government took the position that the fence-based claims accrued in 1998. Following a bench trial, the CFC ruled against John R. Sand on the merits. On appeal, the government did not argue that John R. Sand’s complaint was time-barred. An amicus brief, however, raised the timeliness issue, and the Court of Appeals sua sponte addressed it on review, concluding that John R. Sand’s fence-based takings claims had accrued in 1994 rather than 1998 and that his 2002 complaint thus was time-barred under 28 U.S.C. §2501.

Here’s where the case gets complicated(!) Ordinarily, an argument that a plaintiff’s claim is time-barred under the applicable statute of limitations is an affirmative defense, which must be raised and preserved by the defendant in order to avoid being waived. Which would mean that where, as here, the defendant conceded that the accrual date was 1998 and dropped the statute of limitations argument altogether on appeal, the Court of Appeals could not resurrect that argument as a basis for its ruling. BUT, the United States is no ordinary defendant. It is a defendant who ordinarily cannot be sued, except when it consents to do so by statute. If that statutory consent comes attached to a time limitation for filing claims against the United States, then the failure to comply with the limitations period no longer is an ordinary affirmative defense, but a condition of the sovereign immunity waiver. So the question becomes: Is the six-year limitations period in 28 U.S.C. §2501 meant to be part and parcel of the United States’ consent to be sued under 28 U.S.C. §1491(a), or is it merely an ordinary limitations period subject to waiver? Or, put more technically, is the statute of limitations set forth in 28 U.S.C. §2501 jurisdictional (meaning that it establishes a condition that the plaintiff must meet in order to have a right to sue the government in the first place) or is it merely procedural (meaning that it does not speak to plaintiffs’ right to sue, but only to whether or not a remedy can be granted for a violation of those rights)?

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Interlocking Statutes, Statutory Anomalies and Legislative Purpose

More on the statutory interpretation front: The Supreme Court last week heard oral arguments in Logan v. United States, a case involving the interplay between multiple federal criminal statutes, state law treatment of convicted offenders, and interpretive chestnuts such as the Absurd Results canon.

Federal laws: (1) Under 18 U.S.C. § 922(g)(1), it is unlawful for a person who has been convicted of a crime punishable by more than one year’s imprisonment to possess firearms. (2) Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), convicted persons who violate §922(g)(1), and whose prior convictions include at least three violent felonies or serious drug offenses, face a mandatory minimum fifteen-year sentence. (3) 18 U.S.C. §924(e)(2)(B) defines “violent felony” as a violent crime that is “punishable by imprisonment for a term exceeding one year.” (4) But, under the amended version of 18 U.S.C. § 921(a)(20), enacted as part of the Firearms Owners Protection Act (FOPA), any conviction that “has been expunged, or set aside or for which a person has been pardoned or has had [his] civil rights restored” does not count as a predicate offense “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” To complicate matters, 18 U.S.C. §921(a)(20)(B) specifies that offenses classified by a State as misdemeanors may qualify as a “violent felony” (and thus as a predicate for a felon-in-possession conviction under § 922(g)(1)) if the misdemeanor is punishable by more than two years’ imprisonment.

State law: Wisconsin law classifies simple battery (causing bodily harm, as opposed to substantial or great bodily harm) as a misdemeanor offense, punishable by a maximum sentence of three years’ imprisonment. Wis. Stat §§ 940.19(1) (2003); 939.62(1)(a) (2000). Wisconsin law does not deprive persons convicted of a misdemeanor of any civil rights or of the right to possess a firearm. Wis. Stat. §§ 6.03(1)(b) (2006); 756.02 (1997); 973.176(1) (2006).

In 2005, Petitioner James D. Logan pleaded guilty to possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). A Wisconsin district court sentenced him, under the ACCA, to 15 years’ imprisonment because he had three prior state misdemeanor battery convictions punishable by a maximum of three years’ imprisonment. Logan challenged that conviction, arguing that his Wisconsin misdemeanor convictions should be disregarded under §921(a)(20) because they did not result in the loss of his civil rights, thus leaving him in the same position as a felon whose civil rights have been restored. (Civil rights commonly are understood to include the rights to vote, to serve on a jury, and to hold public office). The question before the Court is: Does the “civil rights restored” exemption under §921(a)(20) apply to defendants whose civil rights never were taken away by the State in the first place?

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Early Reflections on the Roberts Court and Legislative History

The Roberts Court undoubtedly still is in its infancy when it comes to matters of statutory interpretation. Despite this shortage of extrapolation-material, I think it possible to hazard a few speculations about emerging trends in the fledgling Court’s statutory interpretation methodology. At least as concerns legislative history —an ever-fertile ground for debate amongst judges and academics— I note three emerging camps among the Justices:

1.Stevens, Breyer, Ginsburg: Legislative History is relevant to help clarify statutory meaning in the first instance, because it provides context and can illuminate Congress’ intent and purpose in enacting the words at issue.

Evidence: In Hamdan v. Rumsfeld , a case that involved §1005(e)(1) of the Detainee Treatment Act (DTA), these three Justices were willing to rely in part on the fact that when Congress passed the DTA, it specifically considered and rejected a proposal to bar Supreme Court review of habeas applications from aliens detained at Guantanamo Bay that were pending at the time the statute was enacted. (The DTA clearly bars Supreme Court review of habeas applications filed after the date the statute takes effect, and the key question was whether that bar applied to an application filed by Hamdan before the statute was enacted).

Similarly, in Zuni Public School District No. 89 v. Dep’t of Education, these three Justices looked to and relied on the facts that (1) the Secretary of Education drafted the statutory language at issue and promulgated the challenged regulations (and calculation method for per-pupil expenditures) immediately thereafter; and (2) the challenged regulations had been in effect for 30 years prior to this challenge, during which time Congress never objected to the Secretary’s regulations or calculation method. (In other words, the Justices relied on the identity of the drafter and on post-enactment congressional silence).

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Missing Canons of Construction in Ali v. Federal Bureau of Prisons?

This past Monday, October 29, the Supreme Court heard oral arguments in a little-noticed case that raises fascinating questions of statutory interpretation: Ali v. Federal Bureau of Prisons . Ali is a prisoner in the custody of the United States Bureau of Prisons. During a transfer between prisons, he handed over his property to Bureau of Prisons officials for transportation to his new prison. Ali alleges that when his property was handed back to him at the new prison, several religious and personal items, including (as Justice Ginsburg noted during oral argument) a Koran and prayer rug, were missing. After exhausting his administrative remedies, Ali filed suit in federal district court against the United States, the Bureau of Prisons, and three Bureau of Prisons officials for the value of his lost property.

Enter the Federal Tort Claims Act (FTCA), 28 U.S.C. §1346(b), 2671-2680, which waives the United States government’s sovereign immunity for lawsuits in which the petitioner alleges “injury or loss of property” that was “caused by the negligence or wrongful act or omission” of employees of the federal government — except for thirteen specified categories of governmental activity. One of the thirteen excepted categories is for “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” (Emphasis added).

So the $64,000 Question is: Does the phrase “any other law enforcement” officer include Bureau of Prisons officials, or is it limited, as Ali argues, to law enforcement officers who are acting in a customs or tax capacity?

The parties’ briefs, and the Justices’ questions at oral argument, offer a juicy exegesis into numerous textual canons of statutory construction. It’s the kind of romp through the canons that can make statutory interpretation professors like myself positively giddy: Is the statute’s reference to “customs or excise” officers an Example, or a List? Does the hoary (if unpronounceable to law students) ejusdem generis canon of construction apply here, or not? Does Congress’ use of the broad, encompassing word “any” before “other law enforcement officer” make the statute’s meaning plain and eliminate the need for (or the appropriateness of) further inquiry? Does Congress’ subsequent passage of an “exception to the exception” that circles back and waives sovereign immunity for civil forfeitures made by “law enforcement officers” shed light on the meaning of the original exception set forth in §2680(c)?

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The Supreme Court Bar

Tony Mauro at has an interesting story (also reprinted at Yahoo! news) about the growing influence of the Supreme Court Bar — the group of lawyers who routinely argue cases before the Court:

For the elite of the Supreme Court Bar, this is the Gilded Age. Or call it the Age of the Guild.

The Court’s docket continues to shrink. Yet dramatic new research by Georgetown University Law Center professor Richard Lazarus shows that more and more of the Court’s cases are brought and argued by the seasoned veterans who have honed Supreme Court practice into a fine, and exclusive, art form. Last term, fully 44 percent of the nongovernment petitions that were granted review by the Court were filed by such veteran advocates. In 1980, that number was less than 6 percent.

The justices and their law clerks, it seems clear, pay special attention to the briefs and arguments of these virtuosos of the bar. Chief Justice John Roberts Jr., after all, was once one of them, arguing 39 cases to the Court in his days as an appellate lawyer in the private and public sector. And Lazarus cites a 2004 survey published in the Journal of Law & Politics indicating that 88 percent of law clerks openly acknowledged giving extra consideration to briefs filed by what one called the “inner circle” of the Supreme Court Bar. The clerks, who play a crucial role in screening incoming cases for their justices, often then go to work for these same firms, garnering hiring bonuses that this year have reached $250,000.

According to statistics compiled by Professor Richard Lazarus (Georgetown Univ. Law Center), the percentage of successful cert petitions filed by expert Supreme Court attorneys has gone up from 6% in 1980 to 44% in 2006. And the percentage of first-timers arguing before the Court has dropped from 76% to 52%, while the number of seasoned veterans (10 arguments or more) has risen from 3% to 26%.



The Supreme Court, the Federal Circuit, and Patent Law


The Michigan Law Review’s companion journal First Impressions today published an online symposium on the Supreme Court, the Federal Circuit, and Patent Law. The symposium takes place against a backdrop of three recent Supreme Court decisions affecting patent law—KSR v. Teleflex, Microsoft v. AT&T, and eBay v. MercExchange.

A diverse group of authors considers whether these cases together represent, as some commentators have suggested, a recent upheaval in patent law and a modified relationship between the Federal Circuit and the Supreme Court. The extended post contains a more complete description of the symposium as well as links to the essays.

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Toobin’s The Nine: Lost Illusions

toobinnine.jpgI thoroughly enjoyed my speed-read of Jeffrey Toobin’s The Nine. Few books wrap so many deliciously gossipy details about the justices’ life and work around one fundamental insight, which I’ll relate upfront:

[Chief Justice Roberts has said] “Judges are like umpires. Umpires don’t make the rules; they apply them.” [But] Supreme Court justices are nothing at all like baseball umpires. . . . When it comes to the core of the court’s work, determining the contemporary meaning of the constitution, it is ideology, not craft or skill, that controls the outcome of the cases. As Richard A. Posner. . . has written, “It is rarely possible to say with a straight face of a Supreme Court decision that it was decided correctly or incorrectly. . . . [They] can be decided only on the basis of a political judgment. . . . “. [W]hen it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices.

Toobin shows how the justices’ stands are deeply rooted in their biographies, ideologies, and personalities. For example, Thomas loathes Yale (he placed a “Yale Sucks” bumper sticker “on the mantel of his chambers for some time”) and loves Red State NASCAR culture. Breyer’s cosmopolitan views reflect bien pensant Cambridge (Mass.) and Oxford (England). It would take a minor miracle to get these two men to see affirmative action, campaign finance regulation, or abortion in the same way. And frankly, their divergent worldviews will often lead to irreconcilable conflicts on statutory interpretation as well.

Toobin’s book accelerates the classic dynamics of celebrity: it feeds public interest in the justices’ quirks and peccadilloes, then leaves us wondering: why are these people so powerful, anyway? As Britney wilted under constant media scrutiny, so too do the justices appear all-too-human under the glare of Toobin’s meticulous reporting. Toobin claims that the last five justices appointed have “turned out precisely as might have been expected by” their presidential sponsors. He gives the impression that they mechanically advance the interests of the political machines that elevated them.

So where does this leave lawyers? Perhaps a bit more comfortable with the administrative state, which can be more frankly (and accountably) political. Some agencies may also find their legal “freedom of maneuver” more constrained by science and expertise than the Supreme Court would. As Cass Sunstein has stated, “the law’s meaning is not a ‘brooding omnipresence in the sky’–and . . . the executive, with its comparative expertise and accountability, is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends.” Until a book like The Five (about, say, the Federal Communications Commission) shatters our faith in their capacity to escape capture and promote the public good.


Jurisdiction and Textualism

I just posted a draft of a paper on SSRN. It is called “Jurisidiction and Textualism,” and it is about the treatment by textualists of jurisdictional statutes, and what that treatment suggests both about textualism and about the broader debate over the relationship between Congress and the courts in crafting a jurisdictional regime. Here is the abstract:

Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress’s authority to deprive the federal courts of jurisdiction over certain matters. A similar debate has raged over the obligation of federal courts to exercise jurisdiction that Congress ostensibly has conferred. Since the debate over Congress’s role in crafting a jurisdictional regime last flared in full force, textualism has been ascendant as a methodology for interpreting statutes, and has had a profound impact on the way that judges—textualists and non-textualists alike—read statutes. The rise of textualism provides an important opportunity to update the long-standing debate over the proper roles of Congress and the courts in matters of federal-court jurisdiction.

Like the debate over congressional control of the federal jurisdictional regime, textualism is largely about the judicial role in a democracy. Textualists argue that only their methodology recognizes the properly limited judicial role, and they insist that judges must be faithful agents of the legislature, guided by the plain meaning of statutory text. To the extent that textualism has had a significant impact on judicial decision-making, particularly by the Supreme Court, we might expect to see a move towards strict interpretation of jurisdictional statutes, and a vindication, at least as a descriptive matter, for the strong congressional-control models. After all, if the textualist judge is supposed to act as a faithful agent of Congress, following the plain meaning of statutory text, then when Congress plainly withdraws jurisdiction, faithfully textualist judges can be expected to decline to exercise authority; and if Congress confers jurisdiction without qualification, then we might expect textualist judges to eschew arguments for implicit exceptions to the exercise of jurisdiction. In practice, however, textualism has been applied somewhat unevenly to jurisdictional statutes. Although the Court’s textualists have strictly read statutes that purport to divest the federal courts of jurisdiction, they have not been as consistent in applying textualism to statutes that appear, based on their plain language, to confer expansive grants of jurisdiction.

Textualism’s goal to limit the judicial role in a democratic society is advanced by strict interpretations of statutes purporting to divest the courts of jurisdiction. But when Congress appears to confer broad grants of authority—such as in the general federal-question statute—being a truly faithful agent based on statutory language will result in a more robust judicial role than some textualists might otherwise prefer. The treatment by the Court’s textualists of jurisdictional statutes suggests that the textualists’ urge to constrain judicial power has sometimes trumped the textualists’ demand that courts act as faithful agents of Congress by considering only the plain meaning of statutory language in deciphering Congress’s instructions.

This has implications both for textualism and for the larger question of the proper relationship between Congress and the courts in crafting a jurisdictional regime. It should force textualists to defend their approach more explicitly as a device for constraining judicial authority, and perhaps less as the optimal means for implementing a theory of faithful agency in statutory interpretation. And it suggests that, at least as a positive matter, the strong congressional-control models of federal jurisdiction have not yet fully prevailed, at least with respect to the question of the courts’ authority to decline to exercise jurisdiction that Congress ostensibly has granted.

You can download the paper here. I welcome any comments.