Category: Supreme Court


YLJ Online Symposium: “AEP v. Connecticut and the Future of the Political Question Doctrine” and “What Litigation of a Climate Nuisance Suit Might Look Like”

The Yale Law Journal Online‘s new series, Summary Judgment, which features timely responses by academics and practitioners to recent court decisions, continues with the final two installments of its symposium on the Supreme Court’s June decision in American Electric Power Co., Inc. v. Connecticut, 564 U.S. __ , 131 S. Ct. 2527 (2011) (AEP).

In AEP v. Connecticut and the Future of the Political Question Doctrine, Professor James R. May considers the Court’s conspicuous silence regarding the political question doctrine in the climate change context. Although AEP rose to the Supreme Court on the political question issue—the district court dismissed the case as nonjusticiable under the doctrine and the Second Circuit reversed—the Supreme Court itself only obliquely addressed the political question doctrine in that case. But after parsing Justice Ginsburg’s opinion as well as Justice Alito’s concurrence, May concludes that “at the very least, a majority of the Supreme Court has broader views of the justiciability of federal common law claims for climate change than did the district court in AEP.” Although AEP’s implications for other types of cases (e.g., state-common-law claims) are “difficult to gauge,” May observes that one thing is clear: “in AEP, the Supreme Court appeared to endorse the view that courts should not hide from [climate change] issues behind the veil of the political question doctrine.”

While Professor May ultimately urges courts to grapple with global warming and the harms that it inflicts, Professor Michael B. Gerrard questions the wisdom of public nuisance suits in the climate change context. In What Litigation of a Climate Nuisance Suit Might Look Like, Gerrard considers the likely consequences that would follow if courts decline to dismiss these claims on grounds of “displacement, preemption, political question, and standing.” Gerrard concludes that even without those threshold issues, litigation would still involve “extraordinary difficulties.” Throughout the Essay, he enumerates the mind-numbing number of “open questions that would face the parties and the courts.”

Gerrard begins with the difficult question of selecting defendants in climate change actions. This question implicates complex issues of joint and several liability, personal jurisdiction, assessment of unreasonable conduct, operation under governmental permits, statutes of limitations, choice of law, company successorship, supply chains, government liability, and non-industrial emissions. Beyond defendant selection, other problems abound: burden of proof for causation, potential “sprawling class actions,” issue preclusion in multiple lawsuits against the same emitter, measure of damages, assumption of risk, insurance coverage, non-emissions conduct as a factor of liability, venue and consolidation, scope of discovery, and the potential for an almost-unlimited flood of alien tort actions against U.S. emitters.

At the end of his inquiry, Gerrard voices agreement with the Court in its decision that “setting emissions limitations is beyond the competence of the courts.” He predicts that “if any trial court does eventually approach the merits of a suit seeking money damages for [greenhouse gas] emissions, it may find it is embarking down a wormhole, and upon comprehending the journey it may recoil.” While it is crucial for courts to “interpret[] and enforc[e] congressional and regulatory mandates,” Gerrard warns that “erecting a new liability scheme to redress the impacts of our economic system is an entirely different and perilous voyage.”

The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.


YLJ Online Symposium: Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine

The Yale Law Journal Online‘s new series, Summary Judgment, which features timely responses by academics and practitioners to recent court decisions, continues with the fourth installment of its symposium on the Supreme Court’s June decision in American Electric Power Co., Inc. v. Connecticut, 564 U.S. __ , 131 S. Ct. 2527 (2011) (AEP).

In Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine, Professor Daniel Farber argues that AEP is “a powerful illustration of the deep flaws” in the Court’s Article III standing jurisprudence. As Professor Farber points out, “the ‘injury’ that forms the basis for Article III standing does not need to have any logical connection with the legal claim” asserted by the plaintiff. While other commentators have suggested that standing doctrine may pose an insuperable obstacle for climate-change plaintiffs, Professor Farber shows how a “determined plaintiff with the resources to obtain the necessary expert evidence” can rely on harms from co-pollutants other than carbon dioxide to meet the standing test under the Supreme Court’s current standards. This is true “even if the injury from climate change [i]s considered too indirect or delayed to give rise to standing.” Notwithstanding its manipulability, “standing doctrine carries substantial costs” in terms of both litigants’ and judges’ resources. Professor Farber concludes that “it is time for the Court to rethink this ‘exquisitely murky’ doctrine and find some more sensible way to determine which cases are suitable for judicial resolution.”

The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.


YLJ Online Symposium: “AEP v. Connecticut’s Implications for the Future of Climate Change Litigation” and “A Tale of Two Climate Cases”

The Yale Law Journal Online has launched the second symposium of its new series, Summary Judgment, which features timely responses by academics and practitioners to recent court decisions. The newest installments comment on the Supreme Court’s June decision in American Electric Power Co., Inc. v. Connecticut, 564 U.S. __ , 131 S. Ct. 2527 (2011) (AEP), in which an 8-0 majority held that the Clean Air Act and the EPA actions authorized thereunder have displaced the federal common law of public nuisance with respect to greenhouse gas emissions from coal power plants.

In AEP v. Connecticut’s Implications for the Future of Climate Change Litigation, Professor Hari M. Osofsky introduces the six installments of the AEP Summary Judgment symposium and adds four preliminary observations. First, Osofsky argues that while the Court shuts down federal public nuisance claims, it remains very much open to climate change litigation through suits by citizens and states on statutory grounds. Second, she notes that in AEP the Court fails to resolve many issues (some of which are picked up by other contributors in this series), including standing in suits with only nongovernmental petitioners, the political question doctrine, state law preemption, and the possibility that federal common law actions may be allowed if Congress decides to prevent EPA from regulating greenhouse gases. Third, in holding the EPA is better suited to assess climate change science, the Court overlooks the many judges who work with complex science in tort cases as well as the possibility that courts may be engaged in climate change science in non-agency ways. Lastly, Osofsky concludes that AEP will have “mixed impact”: while it ensures that climate change will continue to be an “exploding area” of the law, it also limits citizens and victims from obtaining redress for climate change harm. Addressing climate change issues through a regulatory framework implicates complex issues that all three branches of government will need to resolve.

In A Tale of Two Climate Cases, Professor Jonathan H. Adler juxtaposes AEP alongside the Court’s prior decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which held that greenhouse gas emissions constitute an “air pollutant” under the Clean Air Act. In Adler’s view, Connecticut and the other state plaintiffs in AEP “lost this particular climate battle . . . because they had already won the war”: they have persuaded the Court to confirm the EPA’s regulatory power over greenhouse gases. Moreover, although AEP displaces public nuisance suits under federal common law, Adler notes that the decision did not preclude suits filed under state law. With the door left upon to state-law claims and to regulatory action, Professor Adler concludes that “controls on [greenhouse gas] emissions will proliferate.”

The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.


No More Fire, the Water Next Time

Paul Campos thinks I am cemented to the wall of Yale Law School by the blood of a thousand students, murdered by rapacious professors.

Among its many other vices, does legal education teach you to argue less persuasively and in a way that unsettles civil society?  That accusation is implicit in Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law.  In Some Problems, Kahan considers the Supreme Court’s perceived legitimacy deficit when it resolves high-stakes cases.  Rejecting the common criticism that focuses on the ideal of neutrality, Kahan argues than the Court’s failure is one of communication.  The issues that the Court considers are hard, the they often turn on disputed policy judgments. But the Justices  resort to language which is untempered by doubt, and which advances empirical support that is said to be conclusive. Like scientists, judges’ empirical messages are read by elites, and thus understood through polarizing filters.  As a result, Justices on the other sides of these fights quickly seek to undermine these purported empirical foundations – – as Justice Scalia argued last term in Plata:

“[It] is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism.”

Kahan resists Scalia’s cynicism — and says that in fact Scalia is making the problem worse.  Overconfident display encourages people to take polarized views of law, to distrust the good faith of the Court and of legal institutions, and to experience the malady of cognitive illiberalism.  Kahan concludes that Courts ought to show doubt & humility — aporia — when deciding cases, so as to signal to the other justices & the public that the losing side has been heard.  Such a commitment to humble rhetoric would strengthen the idea of neutrality, which currently is attacked by all comers.  Moreover, there is evidence that these sorts of on-the-one-hand/on-the-other-hand arguments do work.  As Dan Simon and co-authors have found, people are basically likely to consider as legitimate arguments whose outcomes they find congenial.  But when they dislike outcomes, people are better persuaded by arguments that are explicitly two-sided: that is, the form of very muscular rhetoric typical in SCOTUS decisions is likely to be seen, by those who disagree with the Court’s outcomes, are particularly unpersuasive, illegitimate, and biased.

I love this paper — it’s an outgrowth of the cultural cognition project, and it lays the groundwork for some really neat experiments. So the point of the post is partly to encourage you to go read it.  But I wanted to try as well to connect this line of research to the recent “debate” about Law Schools.

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Sherrilyn Ifill on What the Chief Justice Should Read on Summer Vacation

My colleague and CoOp guest blogger Professor Sherrilyn Ifill has written an insightful post responding to Chief Justice Roberts’s comments at the Fourth Circuit Judicial Conference.  I’m including her post below.  Thanks, Professor Ifill!

In response to a question at last weekend’s Fourth Circuit Judicial Conference in White Sulphur Springs, West Virginia, Chief Justice John Roberts expressed his agreement with the views of D.C. Circuit Court of Appeals judge Harry Edwards, who has long argued that the scholarship produced by today’s law professors is largely irrelevant to judges.  In fact the Chief Justice doubled down on Edwards’ argument that legal academics focus their scholarly attentions on matters that more concretely assist the judiciary and legal decisionmakers in understanding and working with difficult areas of law practice.  Roberts contended – jokingly albeit – that too often the average law review article will be focused on “the effect of Kant on the evidentiary rules of Bulgaria.”  The line got a laugh.  But it wasn’t very funny.  It also wasn’t very true.

Legal scholars will on occasion indeed take up Kant (and there’s no shame in that), but more often than not, published law review articles offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decisionmaking on how law develops in the courtroom.  Such scholarship can assist judges in explaining complex legal doctrine, but also in working through the application of that doctrine to modern legal controversies. Take, for example, the work of my colleague Renee Hutchins, who in her 2007 article Tied Up in Knotts:  GPS Technology and the Fourth Amendment, 419 U.C.L.A. L.Rev. 409 writes about whether and how the use of GPS devices by law enforcement should be assessed under the Fourth Amendment.  Her article was so illuminating in exploring this underdeveloped area of law that Judge David Tatel on the D.C. Circuit Court of Appeals cited it in last year’s U.S. v. Maynard, in which the court unanimously held that the police use of GPS tracking on a criminal suspect over several weeks constitutes a “search” and requires a warrant. Read More


A Final Turner Post from Your Co-hosts, Richard Zorza & David Udell

The Turner Symposium is over.  One week and 18 posts later, we are very proud of the ideas and insights that have been shared here. Thank you to all who posted for a spectacularly worthwhile and open conversation about Turner v. Rogers (the full list of participants is available after the leap).

While the Court found no categorical civil right to counsel it usefully clarified the obligations of trial court judges and courts toward unrepresented litigants, particularly those facing the risk of incarceration.  Our panelists identified a range of possible positive jurisprudential and access-to-court impacts for Turner over time:

  • If trial courts deliver on their new obligation to assure “fundamental fairness” through  “procedural safeguards” (and not just in incarceration cases) we will look back at Turner as having opened up the courts, and as having shifted from the state to the courts the responsibility to provide access.  If so, the case will indeed be a transformative landmark.
  • If Access to Justice Commissions are empowered by Turner and state leadership to expand their role in reviewing and changing the accessibility of the system as a whole, then the case will be seen as an institutional game changer.
  • If the case prompts national leadership within the courts and within the bar to develop national strategies for forms, judicial education and Justice Index type benchmarking, this too will have long term transformative impacts.
  • If the Supreme Court later finds categorical rights to counsel for litigants in cases with governmental opponents, lawyers on the other side, or complications beyond civil contempt, Turner may be seen as laying the crucial foundation for those rights.
  • If categorical rights to counsel resonate with more state courts and legislatures, Turner’s denial of an “automatic” federal right may be seen as largely beside the point.
  • If we identify “safeguards” that work, and how best to use them, Turner may be seen as having prompted the research and analysis that assured “fundamental fairness.”
  • If we figure out which litigants and cases need counsel, and which can be heard with   alternatives, Turner may be seen as having made that progress possible too.
  • If we loosen unauthorized practice laws, Turner’s reliance on “complexity” may be seen as having made the absoluteness of those laws impossible to justify whenever counsel is denied.

Of course, our panelists have seen darker scenarios too:  the risks that “safeguards” in fact won’t mean much, and that civil right to counsel claims will find new barriers in Turner.  These are the dangers.

We can’t control today what the Court did last week, but the Turner Symposium prompted deeper thinking in a shorter period of time on a broader range of issues than many of us could have imagined.

As to what will actually come to pass?  Time will tell, but at least some of that will be up to all of us. Read More


Turner v. Rogers

What a thoughtful and provocative discussion over the past few days on the issues raised by the Turner opinion. In my thinking about this issue, I associate myself particularly with Mike Millemann and others who see opportunities in the Court’s reasoning, particularly the notion that some type of assistance is due. People in court with family disputes make up the largest single category of users of free legal asisstance, not only in the United States but in all peer nations (most with legal aid programs significantly more generous than ours). Likely, this is in part due to the on-going nature of custody, child support and related issues. The circumstances of Mr. Turner, the child’s mother and the grandparent with custody are all too familiar to those of us who have worked providing legal services. The parties in many family cases are often “repeat players” and whether poor or well above poverty (moderate to middle income) few can routinely afford traditional full service lawyers — thus the dilemma recognized by the Court of requiring counsel for the parent in Mr. Turner’s position but leaving the custodial party(ies) to reperesnt themselves. A simple approach is state provided counsel for all parties but this would impose on states costs of assistance for many who are well above typical legal aid guidelines (125% of poverty). With a mandate for counsel in every case in which a party might be confined as a result of civil contempt, cash strapped states are likely to direct existing legal aid resources, particularly those provided at the state and local level (about two-thirds of the $1.5 billion available in 2010 for civil legal services), away from other matters where counsel may be a significant game changer – e.g. mortgage foreclosure, evictions, complex consumer matters, severe domestic violence cases. Moreover full service counsel in the sea of family cases that turn on relatively straight forward fact issues (such as ability to pay child support) may be more help than is needed to aid all involved in presenting their best case to the court. Adviceand information, unbundled service, lawyer of the day assistance, help from an experienced non-lawyer are all options that might assure basic fairness and fully meet the needs of all parties involved. As Joie Moses points out all too often the underlying issue in the sea of recurrent child support matters is poverty. Her reference to specialized courts is an intriguing example of a creative approach.

Anecdotal evidence abounds that alternative approaches to providing legal help can be effective. However, we don’t have much data and almost no good quality studies to validate these non-traditional though now fairly common forms of legal advice and assistance. As Jim Baillie’s post suggests, good quality empirical data and research is needed in order to make the best match between party needs and the wide range of legal assistance now available in many states. Turner adds to the urgency for such data and research. While the Court has not mandated counsel, a fair reading of the case is that it has mandated assistance appropriate to the matter at hand. We should take up the challenge not only to continue innovation in modes of service delivery but also to undertake a serious and rigorous examination of what works best in what types of cases. With such evidence we will be able to isolate and document the need for expert lawyer assistance in some (likely many) matters while providing effective help by other means where such help “works” for all parties.


Community Leadership in the Wake of Turner

Legal Aid programs, courts, commissions and other access to justice partners should strive to develop effective approaches to effectuate changes prompted by Turner. The various stakeholders can use this as an opportunity to fully discuss Civil Gideon issues and the implications to low-income people who cannot obtain civil legal services. The numbers of those unable to afford services are staggering and continue to increase further stretching the resources of the courts and of legal aid programs.

A national forum to discuss Civil Gideon issues would help provide guidance to communities struggling with these issues. Ultimately, the solutions must be determined locally. Each state has its own dynamics vis a vis the access to justice community and the courts. In some states, the ATJ Commission may be able to take the lead and work on a potential framework for ways to ensure right to counsel, while in other states the leadership may need to come from the courts. Regardless of who takes the reins, there will need to be leadership by an entity/community if there will be any changes to the status quo.

Turner puts the spotlight on Civil Gideon issues both in context of “safeguards” and representation. This spotlight should remind state access to justice communities about the critical need for access to the courts by those who cannot represent themselves. Turner should remind us that the funding of legal aid in this country is completely inadequate and that very often there are important rights that are lost due to the lack of representation.

A complicated problem has no easy solutions. Clearly, the courts and legal aid programs need to be better funded to ensure people have access to the courts. Assuming that there will continue to be a lack of adequate funding, any solutions will have to be a part of a determined and strategic work by the stakeholders and, in some instances, may come from continued litigation on the issue.


Turner v. Rogers: The Right to Counsel Haunted by the Ghost of Gagnon

From the criminal defense practitioner’s standpoint, the Court’s decision betrays naïve simplicity and a breathtaking disconnect from the real world.   The first of the three reasons cited against the Due Process Clause requiring the State to provide indigents with counsel in civil support contempt proceedings is that the critical issue is likely to be the defendant’s ability to pay.   The Court blithely notes that the question of a defendant’s indigence “is sufficiently straightforward.”  Slip Op. 13. Nothing could be further from reality.

The issue of the ability to pay is inexorably bound up in questions of intent – generally the thorniest of issues to resolve.  Other bloggers, notably John Pollock and Mary Schmid Mergler, thoroughly and effectively address this issue.  Criminal defense practitioners well know that the question of an individual’s ability to pay a fine or restitution is often inextricably interwoven with myriad issues that may involve medical issues, mental health issues, addiction, and an array of factual circumstances.  Indeed, it is not uncommon when litigating an alleged violation of probation to rely upon fact witnesses and experts to demonstrate to the court that the failure to pay has not been willful.  The guiding hand of counsel is an indispensable aid.   Those who hover at the edge of abject poverty are usually the least capable of marshaling the evidence necessary to demonstrate a legitimate excuse for non-compliance.

Indeed, it was while thinking about litigating these issues on behalf of criminal clients in probation violation proceedings that I was struck by the Court’s reliance upon the Gagnon case, which held that there is no right to counsel at a probation revocation hearing.   Gagnon v. Scarpelli, 411 U.S. 778 (1973).   On three occasions,  just as it seemed that the Court was on the precipice of finding that a right to counsel in civil non-payment support proceedings is constitutionally required, the Court cited Gagnon.   Slip Op. at 9 – 10, 12-13.  The last of these cites immediately follows a paragraph that notes the important liberty interest at stake and references studies establishing the prevalence of the “ability to pay” question and that courts are often remiss in resolving that core question.   These compelling factors are dismissed with a citation to Gagnon as authority for the proposition that the Due Process Clause does not always require the provision of counsel in civil proceedings where incarceration is threatened.  Slip Op. 12. Indeed, the Court’s analysis in Turner closely tracks the analysis in Gagnon.

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Turner v. Rogers is watershed moment for civil justice guidance

The Turner decision, as others have recognized, leaves far more questions unanswered than it clarifies with regard to the right to counsel when personal liberty is at stake.  As amicus in the case, The National Legal Aid & Defender Association (NLADA) argued that when the private interest at stake is someone’s personal liberty counsel should be made available to the alleged contemnor in all instances, as is currently the case in a majority of jurisdictions in the United States.  Clearly, an important imperative of the response to Turner must be creative and aggressive advocacy around the areas left unanswered by the opinion, particularly in the very common situation in child support cases when the state is a party to the action.

One area of immediate concern, of course, is the preservation of the rights to counsel that currently exist in child support contempt hearings.   I hope that John Pollock’s optimism in that regard proves true, but with many states facing the bleakest fiscal outlook on record, advocates must turn a keen eye to ensuring that Turner does not signal a retreat from existing rights.  As states struggle to maintain even minimal funding for their court systems, this area could well be seen as an opportunity to save significant money.  In fact, many states that currently provide a right to counsel in civil contempt cases for nonpayment of child support do not adequately enforce that right.  In our haste to define adequate alternative safeguards to counsel in this area, we must be very careful not to erode what we already have.

Yet, I agree that Turner potentially creates a watershed moment in focusing a spotlight on how courts provide access to civil justice in this country, short of providing a right to counsel in certain cases.  We have constantly been engaged in a balancing act in determining the highest and best use for the public and private lawyers available to the civil legal aid system.  To the extent we can use the Turner due process analysis to ensure that courts provide a fair system for unrepresented litigants, our hopes of improving the administration of justice in this country are significantly improved. Read More