nys69-2_cv_nys69-2_cv 9/22/2014 8:41 AM Page 2 (trap 04 plate) Vol. 69 No. 2

New York University Annual Survey of American Law New York of American Law University Annual Survey

ARTICLES

TOWARD ADEQUACY Sarah L. Brinton

SHOULD EVIDENCE OF SETTLEMENT NEGOTIATIONS AFFECT ATTORNEYS’ FEES AWARDS? Seth Katsuya Endo

A LOOK INSIDE THE BUTLER’S CUPBOARD: HOW THE EXTERNAL WORLD REVEALS INTERNAL STATE OF MIND IN LEGAL NARRATIVES Cathren Koehlert-Page

NOTES

EXPERTISE AND IMMIGRATION ADMINISTRATION: WHEN DOES CHEVRON APPLY TO BIA INTERPRETATIONS OF THE INA? Paul Chaffin

WHAT MOTIVATES ILLEGAL FILE SHARING? EMPIRICAL AND THEORETICAL APPROACHES Joseph M. Eno

2013 Volume 69 Issue 2 2013 35568-nys_69-2 Sheet No. 1 Side A 10/28/2014 12:36:12 ALL H ANDERBILT T. V New York City ISSUE 2 Washington Square RTHUR VOLUME 69 A ANNUAL SURVEY ANNUAL NEW YORK UNIVERSITY SCHOOL OF LAW NEW YORK UNIVERSITY SCHOOL OF AMERICAN LAW OF AMERICAN NEW YORK UNIVERSITY NEW YORK \\jciprod01\productn\n\nys\69-2\FRONT692.txt unknown Seq: 1 23-OCT-14 9:10 35568-nys_69-2 Sheet No. 1 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 1 35568-nys_69-2 35568-nys_69-2 Sheet No. 1 Side B 10/28/2014 12:36:12 A Uniform System of is published quarterly at 110 West New York University Annual Survey of American ISSN 0066-4413 All Rights Reserved (212) 998-6540 (212) 995-4032 Fax invites the submission of unsolicited manuscripts. L.C. Cat. 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S M AFAEL D EAH N ICHAEL OSEPHINE ENNIFER ARAH R K AVID AOMI RODERICK ELISSA L J J ANIEL Symposium Editor EFFREY S M D J N LIVER EYHAN D M B ARAH C. P UN LLISON ICHAEL HARON R S O E HEODORE LEXANDRA A S LIZABETH M T OSE ICHOLAS A E R N YUNG K HRISTOPHER C AVIV EJIA IU ITER ALZI H OON U EUCHTEN UVEKE EAVERS -L UPICA ITCHELL C INGH EITH I OTARO ILLER ASS UR ARKEL ANTER YMAN L OSKIES ILCER IM INTZ LEIMAN ORKLE DOKO S OBERT FIR OYNER OGHLAN T. L RUST K K C ZIPORI RUNSWICK PRINGSTED K H K M I J F. G K. L M L A. K C B O P.D. M AUREN M. L V. M W. D S USTON B OTTERMAN T R. T N. L E. M L. R C. P IL L. H L. K L M EAN L. C ARY ICHAEL ETER N G H S LLEN AEL ICOLE ORDAN P Staff Editors AIL M M OUGLAS J Article Editors RANCIS Y Editor-in-Chief HIP A EATHER EN ULIA MANDEEP OSHUA ICHAEL HRISTINA N USAN RYEH ARYL G F J J D ULIENNE OBERT C ABRIEL HARLES Managing Editors B S ATRICK A C LYSSA H J REGORY A ENJAMIN HRISTINE OLIN M D ATTHEW I R P C G B G ATHERINE C C ORDANA M J HRISTOPHER K C OLD B 2013-2014 BOARD OF EDITORS 2013-2014 E NEW YORK UNIVERSITY NEW D UGHES HEN ANENCIA TKINS W. H REELAND HILELLI RAPEKIN IACCI ROEMMING ALKENBURGH AIDLAW UECHNER ASTELLI SCOBAR ERMAN OHN OWLEY ARRETT LIZABETH IOS UITERMAN ERBER Y. C V OLE OUNTAIN B OLLANDER B ALIK ORMAN HISOLM RAHAM H E INOS A. C G C. A IDLER E. F C AN L. F S. L K. C A. C H OHEN A. E C S. C M. D G ANNUAL SURVEY OF AMERICAN LAW OF AMERICAN SURVEY ANNUAL M. C G F E. G J. F A. C V C J. G S. B H. G ANIEL ILLIAM ALTER EGAN AUREEN ICHAEL EAGAN ARRY ALEY AROLD ICOLE AVID RAHAM ANIELLE ALEB HRISTOPHER ATHERINE YAN EBECCA LEX OAZ LIZABETH ATRICK ETER AUL IOBHAN ONNAH OSEPH OSHUA OSHUA ORDAN ULIAN P S K. D D B H C W H R M R J M C M J W J G D J N M E C P J Development EditorsJ A Note Editors H Executive Article EditorsP Senior Articles Editor \\jciprod01\productn\n\nys\69-2\FRONT692.txt unknown Seq: 5 23-OCT-14 9:10 35568-nys_69-2 Sheet No. 3 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 3 35568-nys_69-2 35568-nys_69-2 Sheet No. 3 Side B 10/28/2014 12:36:12 vi \\jciprod01\productn\n\nys\69-2\FRONT692.txt unknown Seq: 6 23-OCT-14 9:10 35568-nys_69-2 Sheet No. 3 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 3 35568-nys_69-2 35568-nys_69-2 Sheet No. 4 Side A 10/28/2014 12:36:12 503 441 417 587 357 FFECT IND IN Paul Chaffin A HEN Joseph M. Eno M Sarah L. Brinton : W Seth Katsuya Endo OW THE MPIRICAL AND Cathren Koehlert-Page : H ? E TATE OF S EGOTIATIONS N HARING OTES UPBOARD NTERPRETATIONS S DMINISTRATION RTICLES N C A A NTERNAL S ILE ’ I F ? BIA I ETTLEMENT UTLER S EVEALS B LLEGAL WARDS R PPLY TO I A MMIGRATION PPROACHES A I SUMMARY OF CONTENTS SUMMARY EES A ORLD ’ F DEQUACY VIDENCE OF W NSIDE THE OTIVATES ARRATIVES A E I HEVRON INA? N C M OF THE OOK HAT OES HEORETICAL TTORNEYS OWARD XTERNAL EGAL XPERTISE AND HOULD W A L D T A E L E T \\jciprod01\productn\n\nys\69-2\FRONT692.txt unknown Seq: 7 23-OCT-14 9:10 S 35568-nys_69-2 Sheet No. 4 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 4 35568-nys_69-2 35568-nys_69-2 Sheet No. 4 Side B 10/28/2014 12:36:12 viii \\jciprod01\productn\n\nys\69-2\FRONT692.txt unknown Seq: 8 23-OCT-14 9:10 35568-nys_69-2 Sheet No. 4 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 4 35568-nys_69-2 35568-nys_69-2 Sheet No. 5 Side A 10/28/2014 12:36:12 ´ an, 357 ABSTRACT SARAH L. BRINTON* SARAH , 487 U.S. 879 (1988), with a patchwork opin- , 487 U.S. 879 (1988), with a patchwork as a guide, confusion has abounded—in the TOWARD ADEQUACY TOWARD Bowen Each year, hundreds of people, companies, organizations, and of people, companies, organizations, Each year, hundreds into court meant to welcome such suits But the very language question of NOARC is not Recent cases demonstrate that the * Research Fellow, J. Reuben Clark Law School, Brigham Young University. Gul Raza, Rebecca Rygg Jensen, and the faculty of the J. Reuben Clark Law School for their contributions and assistance. The author welcomes comments: [email protected]. She thanks Jed Brinton, Jay Bybee, Evan Criddle, Steven Menashi, Diane Rold \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 1 28-OCT-14 9:10 associations sue the federal government for injuries they have suf- the federal government for injuries associations sue are often brought of federal agencies. Such suits fered at the hands Proce- review provisions of the Administrative under the judicial to allow broad which Congress enacted expressly dure Act (APA), agency ac- in an age of increasing administrative access to courts action for which of the APA itself, all final agency tion. By the terms reviewable under adequate remedy in a court is there is no other the APA. for judicial review under the APA, also acts as a bar: to be eligible adequate remedy in a court” agency actions must have “no other of the NOARC require- (NOARC). Despite the facial ambiguity ment—“adequacy beholder,” as one scholar re- is in the eye of the cently wrote—NOARC that has long been ignored by is a provision the Supreme Court. The Justices academia, treatise writers, and meaning of NOARC in one case, have only explicitly addressed the Bowen v. Massachusetts analysis and muddled reasoning. ion marked by its meandering With only lower courts, and in the active Court’s own jurisprudence, in the advocacy of practitioners. of children in need of state-pro- an esoteric one. Rather, the rights of women and Hispanic farmers vided mental health care services, and of U.S. citizens with Mexican to retain long-held family lands, U.S. passports have all depended American surnames applying for And yet, no consensus on the meaning of the NOARC requirement. the NOARC requirement’s wide about NOARC exists. In light of NOARC jurisprudence must be impact and high stakes, our anemic the meaning of NOARC and replaced with robust dialogue about 35568-nys_69-2 Sheet No. 5 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 5 35568-nys_69-2 35568-nys_69-2 Sheet No. 5 Side B 10/28/2014 12:36:12 R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R . 378 .... 400 ...... 369 ...... 406 ...... 414 ...... 412 ARC ...... 408 ...... 396 ...... 371 ...... 393 ...... 380 Bowen ...... 376 ...... 385 Castelano v. Garcia v. Vilsack ...... 367 Bowen ...... 392 ...... 360 ...... 365 Bowen ...... 379 Opinions ...... 375 and ...... 370 and ...... 363 ...... 374 Bowen Bowen ...... 400 ...... 364 Castelano Garcia Bowen ...... 411 ...... 411 ...... 410 and NOARC Step One: Clear the the and NOARC Step Two: Review and NOARC Step Three: Determine and NOARC Step Four: Say No ...... 391 in a Nutshell Bowen Court Bowen Remedy Bowen Adequacy in Conjunction with Other Bowen ...... 359 at Bat...... at 362 ...... 415 Clinton Bowen 1. 2. 3. 4. 1. The NOARC Question(s) 2. The Parties’ NOARC Analyses 3. Comparing 1. APA “Adequate Remedies” Before the 2. Congressional Intent for NOARC 1. ARC The Jurisdictional 2. ARC The Special Statutory 3. Administrative ARC The Unexhausted 4. The Practical ARC 1. The NOARC Question 2. The Courts’ NOARC Analyses 3. Comparing Inquiries Bowen C. Confusion Among Practitioners: A. Statutory Parsing B. Remedy” in 1946 Historical Context: “Adequate . 406 C. with the Squaring the Four Steps C. in the Other ARCs D. A. Confusion in the Supreme Court B. Confusion in the Lower Courts: A. of The Facts B. ARCs The Four I. Under the APA Judicial Review II. IV. Our NOARC Jurisprudence Toward Adequacy in III. About The Confusion Conclusion 358 This dialogue APA. the review under judicial for its implications NYUof the NOARC reading and faithful by a close be informed should ANNUAL SURVEY OF itself. provision AMERICAN LAW [Vol. 69:357 Introduction \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 2 28-OCT-14 9:10 35568-nys_69-2 Sheet No. 5 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 5 35568-nys_69-2 35568-nys_69-2 Sheet No. 6 Side A 10/28/2014 12:36:12 ., http:/ IBR . U. L T . S A L , it is inevitable that it is inevitable 2 3 Federal Agency Directory in a court.” INTRODUCTION These plaintiffs claim to have been hurt by a fed- have been hurt claim to These plaintiffs La. State Univ., 1 See In recent years, the “no other adequate remedy in a court” In recent years, the “no other Each year, hundreds of plaintiffs sue the federal government plaintiffs sue the hundreds of Each year, Congress anticipated these agency-inflicted injuries. That is these agency-inflicted injuries. Congress anticipated 3. 5 U.S.C. § added). The statute also authorizes APA review 704 (emphasis 1. 5 U.S.C. §§ 701–706 is derived from a rough calcula- (2012). This estimate 2. maintains the Federal Agency Di- The Louisiana State University Libraries no other adequate remedy /www.lib.lsu.edu/gov/index.html (last updated June 11, 2011). where expressly authorized by statute. But it is the “final agency action” provision that allows for broad review and interests me here. tion using the Westlaw search function. The number of results for a search of tion using the Westlaw search function. §federal district court cases citing to 5 U.S.C. 706—the provision establishing the Court’s standard of review for APA cases—between January 2012 and December /2 706 & da(aft 1/2012 & bef 12/2012)”; 2012 is 408. Search terms: “5 /2 “u.s.c.” database: dct. from the Executive Branch component rectory. These agency numbers are derived of their directory. under the judicial review provisions of the Administrative Proce- the Administrative provisions of judicial review under the (APA). dure Act (NOARC) language has had real consequences for a variety of peo- (NOARC) language has had real ple—for mental health care ser- children in need of state-provided farmers trying to hold onto their vices; for women and Hispanic who, despite their best efforts and family lands; and for U.S. citizens get the U.S. government to issue documentary evidence, cannot of the ethnicity of their names and them a passport, merely because Each of these groups has had the the circumstances of their births. injuries turn on the meaning redress for their government-inflicted of § 704’s NOARC language. 2013] ADEQUACY TOWARD 359 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 3 28-OCT-14 9:10 eral agency, so they file suit in federal district court for redress. district court for suit in federal so they file eral agency, and an and nationals, of U.S. citizens of millions With hundreds associations, in- corporations, organizations, and untold number of housing fifteen executive branch departments, teracting daily with agencies, and programs, hundreds of offices, injuries—real, or merely alleged—will perceived, result. 5 U.S.C. §§why it included 701–706, judicial review provisions the broadly, they these provisions were drafted of the APA. Although misapplied, and bar that has long gone unnoticed, do include one the language in 5 U.S.C. §misunderstood: 704 that confines APA “for which there actions that are “final” and review to those agency is 35568-nys_69-2 Sheet No. 6 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 6 35568-nys_69-2 35568-nys_69-2 Sheet No. 6 Side B 10/28/2014 12:36:12 : 4 IS- H , 119 Bowen Bowen lines of four EGISLATIVE : L CT (2008) (quoted in A 84–85 AW ROCEDURE ’s confused ARC analyses ’s confused ARC P L Bowen I. , arguing that though the Court in , arguing that though 5 DMINISTRATIVE DMINISTRATIVE A ., A R The APA was intended as “a guide” to both The APA was intended as “a guide” 6 , J IERCE Proposing a Place for Politics in Arbitrary and Capricious Review JUDICIAL REVIEW UNDER THE APA JUDICIAL REVIEW UNDER THE J. P TORY Bowen v. Massachusetts, 487 U.S. 879 (1988). ICHARD 2, 5 n.2 (2009)). Bowen v. Massachusetts R See purported to be undertaking a single NOARC analysis—by undertaking a single NOARC purported to be Yet the meaning of NOARC remains unclear. As Professor As unclear. remains NOARC of the meaning Yet NOARC lan- the problems raised by the This Article presents In 1946, Congress enacted the APA, which Senator Pat McCar- In 1946, Congress enacted the APA, , at iii (1946). 5. 4. 6. Pat McCarran, Foreword, L.J. ALE Kathryn A. Watts, Y 360 NYU beholder.” eye of the in the is “Adequacy wrote, Pierce Richard ANNUAL SURVEY OF bar to imposed this congressionally this facial ambiguity, Despite AMERICAN LAW from anyone—not much attention has not received review [Vol. 69:357 The the Supreme Court. courts, and not not the lower academia, and when provision once, the have expressly adjudicated Justices they fumbled badly. they did, of judicial review Part I reviews the general grant guage of the APA. the NOARC bar the APA, including the context for provided under included in § only Supreme Court case on 704. Part II turns to the point, \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 4 28-OCT-14 9:10 “those invested with executive authority” and “to him who seeks fair “those invested with executive authority” Bowen other “adequate there existed an applicable determining whether (ARC)—theremedy in a court” Court actually pursued III argues that ARC inquiry. Part erratic, poorly reasoned, and inadequate. Judiciary Committee, called a ran, then chairman of the Senate liberty and a solemn undertak- “comprehensive charter of private ing of official fairness.” have created confusion about NOARC for everyone else, including about NOARC for everyone have created confusion Against this the lower courts, and practitioners. the Supreme Court, Part IV proposes a four- backdrop of confusion and uncertainty, courts can conduct a NOARC step NOARC framework by which the language of §determination in accordance with 704. Finally, NOARC framework with Part IV attempts to square the proposed the Supreme Court in its the ARC inquiries undertaken by that our current NOARC jurispru- opinion. The Article concludes and it will not be unless we think dence is no jurisprudence at all, about §more carefully and more faithfully 704 and what it requires. are going to resemble Until then, courts’ NOARC decisions 35568-nys_69-2 Sheet No. 6 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 6 35568-nys_69-2 35568-nys_69-2 Sheet No. 7 Side A 10/28/2014 12:36:12 et , the APA Chapter 10 Chapter 8 wide access to 10 federal agencies—the federal citizens Thus, the APA governs federal governs the APA Thus, 7 Abbott Laboratories v. Gardner those who interact with who interact those —the Supreme Court has clarified that the APA’s judicial 9 Id. The APA comprises twelve sections or chapters. sections or comprises twelve The APA Chapter 10 is codified at 5 U.S.C. §§Chapter 10 is codified 701–706. These six sec- Although nothing in §§ 701–706 provides federal courts with 7. 8. 2, Definitions; Chapter 3, These chapters are: Chapter 1, Title; Chapter 9. Califano v. Sanders, 430 U.S. 99, 105 (1977). 10. 5 U.S.C. § (2012). 702 ). “manifests a congressional intention that it cover a broad spectrum “manifests a congressional intention Public Information; Chapter 4, Rule Making; Chapter 5, Adjudication; Chapter 6, Public Information; Chapter 4, Rule Making; Chapter 8, Decisions; Chapter 9, Sanctions Ancillary Matters; Chapter 7, Hearings; Chapter 11, Examiners; and Chapter 12, and Powers; Chapter 10, Judicial Review; chapters 1, 2, and 12 generally guide Construction and Effect. By their terms, of the APA, chapters 3, 4, and 9 guide those construing and interpreting the text powers, and chapters 5–9agencies in exercising their quasi-legislative and 11 guide agencies in fulfilling their quasi-judicial functions. Administrative Procedure Act, Pub. L. No 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§ 501 seq. 2013] law.” under rights and equal play ADEQUACY TOWARD 361 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 5 28-OCT-14 9:10 review provisions are meant to give the “aggrieved” review provisions are meant to give agencies and and agencies citizen- required to resolve and the courts by agency action affected agency disputes. courts. As the Court stated in provides the APA’s insurance policy: it guides courts in checking guides courts in policy: it the APA’s insurance provides the federal suits against expressly allows Chapter 10 agency action. by which in- agency action, providing a mechanism government for established agencies to the limits and protocols dividuals may hold way, chapter 10 sections. Thus, in an important by the other eleven the APA. is the linchpin of sovereign im- to create a mechanism whereby tions work together (§munity is waived to seek review in district 702) for individuals court (§ 703) of agency actions (§ pending, 704). While review is consequences of or the court can forestall the either agencies agency action (§ find that, upon review, an 705). Should the court “an abuse of discretion,” agency action is “arbitrary,” “capricious,” power, privilege, or immunity,” “in “contrary to constitutional right, . or short of statutory right,” “with- excess of statutory jurisdiction . . by law,” “unsupported by out observance of procedure required by the facts,” the reviewing substantial evidence,” or “unwarranted and “set [it] aside” (§court shall “hold [the action] unlawful” 706). under the APA—forjurisdiction to hear claims brought that, plain- jurisdiction under 28 U.S.C. tiffs must rely on federal question § 1331 35568-nys_69-2 Sheet No. 7 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 7 35568-nys_69-2 35568-nys_69-2 Sheet No. 7 Side B 10/28/2014 12:36:12 , 15 as AVIS § 26.12, courts C. D 13 REATISE ENNETH T K 16 AW L Abbott Laboratories DMINISTRATIVE , A AT BAT II. AVIS Thus, “[t]he Administrative Procedure Administrative “[t]he Thus, C. D 14 11 on courts’ jurisdiction under the APA. In on courts’ jurisdiction § 20.08, at 101 (1958)). BOWEN ENNETH K REATISE T limitations Despite the ambiguity inherent in an “adequacy” Despite the ambiguity inherent AW 17 L Bowen v. Massachusetts, 487 U.S. 879, 902 (1988). Compare the (quoting 4 (internal brackets omitted). at 141 (quoting Shaughnessy v. Pedreiro, 349 U.S. 48, 51 (1955)). at 141 (quoting Shaughnessy v. Pedreiro, See Id. Id. Id. 12 review agency actions unless those actions are expressly actions unless those actions are review agency In at least one important way, this oversight remains true to- In at least one important way, this In other words, before courts review agency actions under the before courts review agency actions In other words, But what the Supreme Court described in described in the Supreme Court But what For the forty years following the enactment of the APA, the For the forty years following the 17. 16. 11. 140 (1967). Abbott Labs. v. Gardner, 387 U.S. 136, 12. 13. 14. 5 U.S.C. § 704. 15. Darby v. Cisneros, 509 U.S. 137, 145 (1993) (citing 3 DMINISTRATIVE the two categories of actions made reviewable under the APA by of actions made reviewable the two categories at 468–69 (2d ed. 1983)). NOARC gap with the finality requirement imposed by the “final agency action” A Twenty-five years later, he noted that §Twenty-five years later, he noted 704 was “relevant in hun- ignored. dreds of cases” but still was “customarily” APA in 1946, only one Supreme day: since the enactment of the the meaning of NOARC limita- Court case has directly addressed tion in § 704. APA, they must ensure the actions are of the kinds made reviewable the actions are of the kinds APA, they must ensure barred, and as far this assurance, APA review is by the APA. Without the agency action must stand. as the APA governs, 362 actions.” of administrative NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:357 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 6 28-OCT-14 9:10 broadening components of the APA’s judicial review provisions— of the APA’s judicial components broadening § 704—are also Act provides specifically not only for review of ‘agency action made action ‘agency review of only for not specifically Act provides action for of ‘final agency also for review by statute,’ but reviewable 5 U.S.C. in a court,’ adequate remedy is no other which there § 704.” Supreme Court largely ignored the limitations of §Supreme Court largely ignored 704, which re- action made reviewable by quire that courts only review “agency for which there is no other ade- statute” and “final agency action Professor Kenneth Davis noted quate remedy in a court.” In 1958, completely overlooked §that judicial opinions almost 704. other words, notwithstanding the “hospitable interpretation[s]” the “hospitable other words, notwithstanding the APA’s “generous review provisions,” courts must give cannot “no other ade- by statute” or are “final” and with “made reviewable a court.” quate remedy in 35568-nys_69-2 Sheet No. 7 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 7 35568-nys_69-2 35568-nys_69-2 Sheet No. 8 Side A 10/28/2014 12:36:12 19 , 131 S. , 509 U.S. Darby Tohono O’odham , the Court finally the 18 See, e.g. , Bowen was a Medicaid payment dis- was a Medicaid opinion, resolving the case instead on The Court addressed neither Prof. Sisk’s Bowen United States v. Tohono O’odham Nation Id. , 131 S. Ct. at 1731. Bowen v. Massachusetts Bowen Tohono O’odham A. The Facts of , HHS made payments to Massachusetts to reimburse , HHS made payments to Massachusetts 20 at 891. Bowen Id. See Tohono O’odham Nation , 131 S. Ct. 1723 (No. 09-846). Sisk argued that the Court of Federal Claims , 131 S. Ct. 1723 (No. 09-846). Sisk argued Unfortunately, the Court’s analysis is a mess. In an effort to mess. In an effort analysis is a the Court’s Unfortunately, The central controversy in The central controversy In discrete ways. Those individual ARC analyses contradict and individual ARC analyses discrete ways. Those 18. 487 U.S. 879 (1988). 19. 20. to clarify its NOARC jurispru- Notably, the Court resisted an opportunity the language of the Court of Federal Claims’ jurisdictional statute, 28 U.S.C. § 1500. language in § 704, which is much more fully explicated. 136 (1967). 137; Abbott Labs. v. Gardner, 387 U.S. 2013] this interpret to not attempt did Court the Supreme requirement, In 1988. until language (ARC) remedy in a court” “adequate whether another determine ADEQUACY TOWARD analysis. In a single ARC to undertake the Court purported existed, ARC in at least analyzed the proposed alternative fact, the Court four Consequently, Court did not choose among them. overlap, and the this way today—conflicting,NOARC law remains indefinite, and Supreme Court (and, in fact, because of) ambiguous, despite precedent. 363 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 7 28-OCT-14 9:10 pute between the Commonwealth of Massachusetts and the Secre- Commonwealth of Massachusetts pute between the of Health and Human Services tary for the U.S. Department funds on certain services pro- (HHS). Massachusetts had expended HHS had paid for, as it does, in vided to Medicaid patients, which practice is to reimburse states in lump advance payments. HHS’s and then to disallow costs it later anticipation of cost expenditures HHS then withholds the dis- decides were improperly incurred. or requires the state to return puted amount from future payments the disputed amount. argument nor NOARC in its it for medical and rehabilitative services the state had provided to it for medical and rehabilitative HHS disallowed some of those mentally disabled patients. Later, and squarely addressed the question of whether “§the question of addressed and squarely relief 704 bars court. in another an adequate remedy” the [plaintiff] has because Ct. 1723 (2011). The Court had been encouraged by amicus curiae Prof. Gregory Ct. 1723 (2011). The Court had been encouraged an APA cause of action. Brief of Professor C. Sisk to decide that NOARC prevented of Neither Party, Gregory C. Sisk as Amicus Curiae in Support Nation Indian tribe seeking redress for trust land could offer an adequate remedy to an mismanagement, thus triggering NOARC and preventing the Indian tribe from bringing suit in the district court. dence when it issued its opinion in 35568-nys_69-2 Sheet No. 8 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 8 35568-nys_69-2 35568-nys_69-2 Sheet No. 8 Side B 10/28/2014 12:36:12 HHS peti- 21 In other words, the 24 Specifically, the Court The Supreme Court The Supreme 23 22 at 889. Id. jurisdiction over the disallowance claim. jurisdiction over B. The Four ARCs no , 487 U.S. at 890. HHS also argued the district court did not have , 487 U.S. at 890. HHS also argued the at 891. The Court also addressed HHS’s argument that 5 U.S.C. §at 891. The Court also addressed HHS’s 702 at 891. 487 U.S. at 890–91. Bowen Id. Id. Id. Massachusetts sued in federal district court, alleging the court, alleging federal district sued in Massachusetts First Circuit, HHS lost again. On appeal to the The Court framed its inquiry in terms of 5 U.S.C. §The Court framed its inquiry in 704: “The In a patchwork majority opinion by Justice Stevens, the Court In a patchwork majority opinion 21. 22. 23. 24. at 900. the authority to order the Secretary to pay money to Massachusetts. The First Cir- the authority to order the Secretary to for Massachusetts on the basis that federal cuit accepted this argument but found [HHS]’s disallowance decision, and to district courts “had jurisdiction to review grant declaratory and injunctive relief.” 364rather providers educational by incurred they were because costs NYUMassa- from so by withholding It did providers. by healthcare than ANNUAL SURVEY OF services. of the disputed the value lump sum payments chusetts’s AMERICAN LAW [Vol. 69:357 5 U.S.C. through its sovereign immunity had waived United States §aside court set that the district requested 702. Massachusetts The dis- injunctive relief. declaratory and and provide HHS’s order HHS’s action disal- for Massachusetts and reversed trict court found lowing the reimbursement. \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 8 28-OCT-14 9:10 basic jurisdictional dispute is over the meaning of the Administra- basic jurisdictional dispute is over §tive Procedure Act (APA), 5 U.S.C. 704.” Court’s task was to determine if the Claims Court provided an ARC Court’s task was to determine if decision was precluded such that review of HHS’s disallowance under the APA. another adequate remedy preclud- held Massachusetts did not have could be remanded to the dis- ing APA review. Therefore, the case merits. To arrive at this decision, trict court for a decision on the of remedies that could the majority introduced four categories addressed the argument that “§ 704 bars relief because the State Court.” has an adequate remedy in the Claims granted both petitions. tioned the Supreme Court for certiorari, raising a new argument: Court for certiorari, raising tioned the Supreme had the district court exclusive jurisdic- the U.S. Claims Court had Rather, HHS argued, ask- claim. Massachusetts cross-petitioned, tion over Massachusetts’s district court had Court “to decide that the ing the Supreme grant complete relief.” jurisdiction to did not allow for actions against the government seeking money damages, that this did not allow for actions against the government seeking money damages, that was an action for money damages, and that, therefore, § 702 was a bar to review and recovery. The Court rejected this argument in Part II of the majority opinion. Id. 35568-nys_69-2 Sheet No. 8 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 8 35568-nys_69-2 35568-nys_69-2 Sheet No. 9 Side A 10/28/2014 12:36:12 25 26 juris- district court’s jurisdiction, whereas Massa- Claims Court’s ’s jurisdictional ARC goes as follows: if a ’s jurisdictional 1. ARC The Jurisdictional Bowen majority introduced the possibility that district majority introduced at 890 (“In his petition for certiorari, the Secretary asked us to at 890–91 that (“In its cross-petition, the State asked us to decide Bowen See id. See id. to grant relief to a plaintiff, that plaintiff then has a remedy a plaintiff, that plaintiff then has to grant relief to The Court could have adopted Massachusetts’s question at the The Court could have adopted Massachusetts’s Though these questions are clearly related, they focus the in- Though these questions are clearly The logic of The 25. 26. 1. Jurisdictional remedies; 1. Jurisdictional statutory remedies; 2. Special and remedies; administrative 3. Unexhausted 4. Practical remedies. chusetts’s question requires the Court to consider the chusetts’s question requires the jurisdiction. had not assumed that alternative expense of HHS’s. If the Court question of §jurisdiction was relevant to the 704 ARCs, it could without addressing the issue of have undertaken a NOARC analysis Instead, the Court reviewed the the Claims Court’s jurisdiction. the Tucker Act and its ability to Claims Court’s jurisdiction under by the plaintiffs here and found give the kinds of relief requested Claims Court does not have the the Claims Court wanting: “The court to grant prospective re- general equitable powers of a district the District Court had jurisdiction to grant complete relief.”). decide that the United States Claims Court had exclusive jurisdiction over the decide that the United States Claims Court had exclusive jurisdiction over State’s claim.”). Conversely, the question Massachusetts posed to the Court was: Conversely, the question Massachusetts to grant complete relief? does the district court have jurisdiction question focuses the court’s quiry on different courts. HHS’s NOARC analysis on the 2013] not Court did the Though review. APA precluding as ARCs serve categories—nor, these name to have appear the Court fact, did in inquiries—they four separate that it used recognized can be described as follows: roughly ADEQUACY TOWARD as a matter of the district court has the ability court other than diction 365 of an alterna- that is adequate. Thus, the existence in another court is an ARC, trigger- over a plaintiff’s claim tive court with jurisdiction ing § § 704 preclusion and preventing 706 review. jurisdiction as part of their courts should look to other courts’ § by accepting HHS’s framing of the dispute. 704 NOARC analysis Court was essentially: does the U.S. The question HHS posed to the over the State’s claim? Claims Court have exclusive jurisdiction \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 9 28-OCT-14 9:10 35568-nys_69-2 Sheet No. 9 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 9 35568-nys_69-2 35568-nys_69-2 Sheet No. 9 Side B 10/28/2014 12:36:12 because the limited relief the Claims for judicial re- a purely monetary and, “[f]urther, 31 ”; 32 .” 27 exclusive forum as a jurisdictional matter is not an adequate substitute for review is not an adequate substitute for Thus, the Court clearly determined that Thus, the Court clearly determined 33 It is no answer, the Court warned, that the It is no answer, 28 , 487 U.S. at 905 (internal brackets omitted). , 487 U.S. at 901 (emphasis added). 29 at 905–06. at 907. at 887 (emphasis added). at 891 (emphasis added). at 910 (emphasis added). ; “[The Secretary] argues that . . . §; “[The Secretary] argues that . . 704 bars relief Bowen Id. Id. Id. Id. Id. Bowen 30 Upon inspection it is clear to us what may not have been clear Upon inspection it is clear to us The Court acknowledged the possibility of a jurisdiction-re- The Court acknowledged the possibility The Court’s concern for a hypothetical plaintiff to have access for a hypothetical plaintiff The Court’s concern As part of its §As part Court even con- analysis, the 704 NOARC 27. 28. 29. 30. 31. 32. 33. Court could not grant complete relief to the aggrieved party. Court could not grant complete district courts should or could to the Court: one category of ARC lated category of ARC. In the clearest holding, the Court found that lated category of ARC. In the clearest that the entire action is barred “[t]he Secretary’s novel submission by § because the doubtful and 704 must be rejected, available in the Claims Court in the District Court.” to the kind of relief it requests (if merited) is just one manifestation it requests (if merited) is just to the kind of relief others include the ARC analysis. The of the Court’s jurisdictional conflation of the §Court’s frequent 704 question in this case with jurisdiction: “[T]he novel pro- the question of the Claims Court’s the position that the Claims Court is 366Claims of the Court that categorically stated we have Indeed, lief. NYU relief.” equitable to grant no power has ANNUAL SURVEY OF AMERICAN LAW could the Claims Court scenario in which a counterfactual structed [Vol. 69:357 cov- to retain the amount a State elects jurisdiction. “[I]f not have Grant Ap- of review by the completion a disallowance until ered by suit in the be able to file wrote, “it will not the Court peals Board,” from a future after the disallowance is recouped Claims Court until quarterly payment.” \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 10 28-OCT-14 9:10 does not appear to have been view of this type of agency action this case reached the Court of Ap- advocated by the Secretary until peals” State has an adequate remedy in the Claims Court State has an adequate remedy in the NOARC existed here where state has the money in its possession—itstate has the money to plan. “Such will need it important to seek judicial review—perhapsplanning may make in for a preliminary injunction—asthe form of a motion promptly as possible.” the District Court’s jurisdiction to award complete relief in a case the District Court’s jurisdiction possibility that such as this is not barred by the Court judgment may be entered in the Claims 35568-nys_69-2 Sheet No. 9 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 9 35568-nys_69-2 35568-nys_69-2 Sheet No. 10 Side A 10/28/2014 12:36:12 37 ANUAL ON M S ’ ENERAL for an ARC. Left for an G which provided the 39 36 looked , the Court did not find , the Court TTORNEY court raises is the special , A Bowen The Court listed the Federal The Court listed LARK Bowen 35 C. C (1947)). OM CT A , HHS argued that the special statutory , HHS argued that the special . T EN G Y ’ Bowen 2. Statutory ARC The Special TT 38 court held that this contrast supports one inter- court held that this contrast supports ROCEDURE A P Bowen at 903. (quoting . It does not matter that, in not matter that, It does THE Id. Id. Id. Id Id. 34 DMINISTRATIVE Thus, one possible ARC the In the case of Against the backdrop of these specific statutory review proce- Against the backdrop of these specific The Court considered a second category of ARC in reviewing a second category of ARC The Court considered 39. 28 U.S.C. § 1491. 35. 34. 36. 37. 38. A dures, Congress enacted the APA and its broad grant of judicial dures, Congress enacted the APA review. The has provided special and statutory ARC. That is, “where Congress adequate review procedures,” § 704 “does not provide additional judicial remedies.” 2013] § a undertaking for when look jurisdic- is the analysis 704 NOARC au- the legal court has an alternative whether That is, ARC. tional “limited more than something to give the aggrieved thority relief.” ADEQUACY TOWARD “[a]t the time history. The Court noted that, the APA’s legislative administrative a number of statutes creating the APA was enacted, followed in review- the specific procedures to be agencies defined agency’s action.” ing a particular 367 pretation of § provision as enacted . . . makes it clear 704: “[T]he general grant of review in the APA that Congress did not intend the for review of agency action.” to duplicate existing procedures \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 11 28-OCT-14 9:10 this ARC—what that the Court matters is wanting, it moved on. wanting, ARC existed in the form of the Tucker Act, ARC existed in the form of the U.S. Claims Court with jurisdiction over claims “founded either U.S. Claims Court with jurisdiction of Congress or any regulation of upon the Constitution, or any Act any express or implied contract an executive department, or upon or unliquidated damages with the United States, or for liquidated Trade Commission (FTC), the National Labor Relations Board (FTC), the National Labor Trade Commission (ICC) as three Interstate Commerce Commission (NLRB), and the judicial review with congressionally specified examples of agencies and NLRB actions statute, judicial review of FTC procedures. By appeals, and ICC orders were sub- occurred directly in the courts of courts. ject to review by three-judge district 35568-nys_69-2 Sheet No. 10 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 10 35568-nys_69-2 35568-nys_69-2 Sheet No. 10 Side B 10/28/2014 12:36:12 45 44 court is other is under review, jurisdictional ARC. Bowen jurisdiction 46 The Court then transitioned The Court then 43 The Court paraphrased HHS’s spe- HHS’s Court paraphrased The ; namely, the Claims Court’s lack of ; namely, the Claims 40 Bowen 41 , 487 U.S. at 904. Shalala v. Illinois, 529 U.S. 1, 5 (2000) (implicitly finding APA review 42 U.S.C. § 1395oo. at 905. . The Court then held that “the remedy available to [Massa- held that “the remedy available The Court then Bowen Id Id. Id. See See 42 to hear the case and grant relief. What matters for the special to hear the case and grant relief. What § however, is a 1395oo is not, This discussion relates to the Court’s discussion of the jurisdic- to the Court’s discussion This discussion relates The Court rejected HHS’s special statutory ARC argument, special statutory rejected HHS’s The Court 42. 40. 28 U.S.C. § 1491(a)(1). 41. 43. 44. 45. 46. This provision is a special statutory remedy drafted by Congress This provision is a special statutory appeals by providers would occur with the intent that Medicare For this reason, 42 U.S.C. through this statutory procedure. §direct APA review. 1395oo precludes tional ARC, although the two ARCs are conceptually different. the two ARCs are conceptually tional ARC, although is another court’s the jurisdictional ARC analysis What matters for power 368 in tort.” sounding not in cases NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:357 it a “restrictive—andcalling unprecedented—interpretation of § 704.” is Congress’s intent for judicial statutory ARC, on the other hand, to be heard in a special and spe- review of particular agency actions has specified that appeals by Medi- cific way. For instance, Congress payments must happen care providers of certain Medicare procedures outlined by statute. according to the judicial review \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 12 28-OCT-14 9:10 chusetts] in the Claims Court is plainly not the kind of ‘special and Claims Court is plainly not the kind chusetts] in the court of its nor- procedure’ that will oust a district adequate review under the APA.” mal jurisdiction cial statutory ARC argument “that § ARC argument statutory cial to bar 704 should be construed monetary Court because in the District the agency action review of Court in the Claims States is available the United relief against Tucker Act.” under the Appeals brought for judicial review under either §Appeals brought for judicial review 703 or 42 U.S.C. §the district court. Therefore, no 1395oo begin in applicable as a forum, no other court’s applicable as a forum, no other and no jurisdictional ARC argument can be made. In short, 42 and no jurisdictional ARC argument U.S.C. § example of a special statutory ARC that is not 1395oo is an into a discussion of the Claims Court’s inability to give the plaintiff of the Claims Court’s inability to into a discussion in all of what it sought relief.” powers . . . to grant prospective “general equitable precluded because Congress anticipated Medicare appeals would occur through the judicial review provisions of Medicare). 35568-nys_69-2 Sheet No. 10 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 10 35568-nys_69-2 35568-nys_69-2 Sheet No. 11 Side A 10/28/2014 12:36:12 the primary thrust of 49 , the provision as enacted This short textual analysis led the Court to This short textual 48 court then apparently conceded the unexhausted court then apparently conceded 50 3. Administrative ARC Unexhausted The 47 , 487 U.S. at 902. Bowen at n.35. at 903 (emphasis added). Bowen Id. Id. Id. Admittedly, the Court’s “concession” of the unexhausted ad- Admittedly, the Court’s “concession” In the footnote to this proposition, the Court briefly explored to this proposition, the Court briefly In the footnote of the language of §This almost verbatim restatement 704 Professor Davis’s proposed Having raised and briefly addressed Early in its majority opinion, the Court wrote, “Professor Davis, “Professor the Court wrote, its majority opinion, Early in 48. 47. 49. 50. ministrative remedies ARC might be characterized as a statement ministrative remedies ARC might the validity of the unexhausted administrative remedies ARC. The unexhausted administrative remedies the validity of the that “§Court reasoned ‘Actions reviewable’ and it dis- 704 is titled at issue today, mat- sentences that follow the one cusses, in the two ters regarding finality.” but the Court may have makes for an unremarkable proposition, agency actions can be re- been emphasizing that even “nonfinal” actions necessary to finalize them viewable as long as the further remedy. As the Court pointed out, would not serve as an adequate NOARC language in §this is arguably a statement that the 704 con- administrative remedies as templates courts looking to unexhausted §possible ARCs, which would preclude 704. ARC, the 2013] the between the difference thus highlighting ARC, a jurisdictional categories. two ADEQUACY TOWARD discussed . . . has law scholar, respected administrative a widely § action when there is an ‘ade- bar to judicial review of agency 704’s of the proposition as merely a restatement quate remedy’ elsewhere remedies that are not exhaust administrative that ‘[o]ne need inadequate.’” 369 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 13 28-OCT-14 9:10 conclude “it is certainly arguable that by enacting § arguable that by enacting conclude “it is certainly 704 Congress be limited to fi- ensure that judicial review would merely meant to nonfinal agency actions for which nal agency actions and to those later.” there would be no adequate remedy administrative remedies ARC. But it did so cursorily, on its way to its administrative remedies ARC. But special statutory ARC discus- much more detailed and thorough although sion. The Court wrote, “However, § exhaustion requirement 704 was to codify the not intend the general grant of also makes clear that Congress did existing procedures for review of review in the APA to duplicate agency action.” 35568-nys_69-2 Sheet No. 11 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 11 35568-nys_69-2 35568-nys_69-2 Sheet No. 11 Side B 10/28/2014 12:36:12 court of the received , indicating Bowen expertise Bowen Bowen court did not rely Bowen 51 4. The Practical ARC court say anything to negate or to contextualize anything to negate court say 52 Bowen at 902. at 907–08. Id. Id. Despite the Court’s anemic discussion of the unexhausted ad- anemic discussion of the unexhausted Despite the Court’s The Court continued: The fourth possible category of ARC raised in The fourth possible category of It should be noted, of course, that the It should be noted, 51. 52. We have a settled and firm policy of deferring to regional courts of appeals in matters that involve the construction of itself did not rely upon this ARC for its holding, the unexhausted itself did not rely upon this ARC a possibility in precedential administrative remedies ARC remains law. that the Court thought it a possibility worth raising. that the Court thought appear to have conceded it as a ministrative remedies ARC, it does look to when they try to deter- viable ARC, one district courts may review. Though the mine if NOARC exists prior to APA upon the unexhausted administrative remedies ARC for its § administrative remedies upon the unexhausted 704 raised it as a possi- making it dicta. But the Court holding, arguably the Court does not need to accept—orbility. Certainly, even dis- cuss—the academics. But it did so in work of legal 370of § purposes the general about about a statement than 704 rather NYU that conces- because But specifically. NOARC of an interpretation ANNUAL SURVEY OF unexhausted administra- discussion of the the Court’s sion follows AMERICAN LAW the meant to address clear the Court ARC, it seems tive remedies [Vol. 69:357 reject the did not The Court certainly of Davis’s ARC. validity remedies ARC—nowhere administrative unexhausted opin- in the the ion did But it is a paragraph that stands only one paragraph of discussion. it addresses a line of analysis un- in contrast to the others because After the Court’s discussion like any other in the Court’s opinion. the Claims Courts (the jurisdic- of the jurisdiction and powers of a discussion of the tional ARC), the Court turned to of the controversies that give Claims Court: “Further, the nature involve state governmental rise to disallowance decisions typically be in a better position to under- activities that a district court would tribunal headquartered in stand and evaluate than a single Washington.” \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 14 28-OCT-14 9:10 administrative law Davis, a widely respected its point that “Professor the NOARC language in §scholar” believes 704 is “merely a restate- remedies need unexhausted administrative ment” that inadequate prior to review. not be exhausted 35568-nys_69-2 Sheet No. 11 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 11 35568-nys_69-2 35568-nys_69-2 Sheet No. 12 Side A 10/28/2014 12:36:12 of Bowen Bowen of the Justice 55 quality . fruitfulness quality Bowen Using this line of 54 In this way, the . Opinions 53 Bowen of relief (i.e., a court’s ability to grant both equita- of relief (i.e., a court’s ability to of relief (i.e., whether Congress prescribed a statu- of relief (i.e., whether Congress court seemed to be interested in the to be interested court seemed C. ARCs in the Other , 487 U.S. at 908. Bowen at 908. at 881. topicality Bowen Id. Id. The This argument could be characterized as raising the possibility be characterized as raising This argument could concerned with the The practical ARC is uniquely In contrast, the practical ARC inquiry as framed by the In contrast, the practical ARC inquiry In addition to the majority opinion, which was authored by Jus- In addition to the majority opinion, 53. 54. 55. state law. That policy applies with special force in this context, in this force with special applies policy law. That state for of Appeals the Court nor Claims Court the neither because the in considering special expertise Circuit has any the Federal give rise to disallow- that aspects of the controversies state-law programs. grant-in-aid ances under Court underscored the viability of a practical ARC inquiry, though Court underscored the viability 2013] ADEQUACY TOWARD 371 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 15 28-OCT-14 9:10 review that would be provided to plaintiffs if they were forced to if they were to plaintiffs would be provided review that in the district in the Claims Court, rather than bring their claims that, regard- was implying, if not outright stating, court. The Court Court might remedies available in the Claims less of jurisdiction, as a practical matter. not be adequate ARC is that if no ARC.” The rationale behind this of “the practical matter—jurisdic- a court is adequate as a practical other remedy in reme- and unexhausted administrative tion, statutory procedure, dies notwithstanding—then NOARC triggers § 704 preclusion and bars § 706 review. analysis, a court might be able to say that the relief looks adequate analysis, a court might be able to matter in a legal sense, but not as a practical relief; the jurisdictional ARC line of inquiry is concerned with the relief; the jurisdictional ARC line comprehensiveness statutory ARC inquiry focuses ble and monetary relief); the special on the in this case, the Court held that no other practical ARC was to be in this case, the Court held that found. tory remedy for this specific kind of problem); and the tory remedy for this specific inquiry considers the unexhausted administrative ARC of unpursued administrative relief. tice Stevens and joined by Justices Brennan, Marshall, Blackmun, tice Stevens and joined by Justices and O’Connor, two other opinions were filed in Court allows the Court to consider the actual adequacy of the re- Court allows the Court to consider lief—in the Claims Court decide this case, the justness of having interaction.” “complex questions of federal-state 35568-nys_69-2 Sheet No. 12 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 12 35568-nys_69-2 35568-nys_69-2 Sheet No. 12 Side B 10/28/2014 12:36:12 56 , note supra , For this pro- LARK 60 . C EN money damages would G Y for ’ TT He wrote: “The Court is He wrote: A 57 59 61 Justice White clearly relied solely upon the Justice White clearly 58 , 487 U.S. at 913. at 912–13 concurring). Although the concurrence does out- (White, J. at 922 (Scalia, J., dissenting) (quoting Id. Id. Id. Bowen Id. Id. Justice Scalia then analyzed the Tucker Act, which he con- Justice Scalia then analyzed the Whereas Justice White concurred on narrower grounds than White concurred on narrower Whereas Justice Justice White’s short concurrence sets forth his understanding sets forth short concurrence Justice White’s 61. 56. 57. 58. 59. 60. 38, at 101). cluded was a special statutory ARC precluding §cluded was a special statutory ARC 706 review. The jurisdiction over Massachusetts’s Tucker Act gives the Claims Court because the Tucker Act es- Medicaid claim, Justice Scalia reasoned, over two relevant kinds of tablishes the Claims Court’s jurisdiction instruments”; and (2) “a claim action: (1) “[g]overnment grant those relied upon in the majority opinion, Justice Scalia, Chief Jus- in the majority opinion, Justice those relied upon broader grounds. Justice Kennedy dissented on tice Rehnquist and special statutory category of ARC. First, Justice Scalia addressed the and effect of [the NOARC re- He explained that “[t]he purpose quirement of § is to establish that the APA ‘does not provide 704] situations where the Congress has additional judicial remedies in procedures.’”provided special and adequate review 372 in a dissent authored Scalia Justice and concurrence, filed a White NYU joined. Kennedy Justice and Rehnquist Justice Chief which ANNUAL SURVEY OF both raise they opinions is precedential, neither of these Though AMERICAN LAW upon ARC inquiries. and rely [Vol. 69:357 the § analysis on of the Court’s 704 claim. \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 16 28-OCT-14 9:10 position, he quoted Attorney General Clark’s manual and cited to a position, he quoted Attorney General decisions, as well as to Professor series of federal court of appeals Davis’s administrative law treatise. line Justice White’s understanding of the §line Justice White’s understanding of the focuses primarily on the 704 issue, it § dispute whether the ac- 702 question raised in the case. Specifically, the parties or if it is a request for some other kind tion filed is a request for money damages, of relief. Because § immunity for actions 702 only provides a waiver of sovereign an action “seeking relief other than money damages,” jurisdictional ARC inquiry. His concurrence does not even acknowl- inquiry. His concurrence does jurisdictional ARC On this basis other adequacy considerations. edge the Court’s reached in [the “I thus agree with the result alone, he concurred: § analysis] of the Court’s opinion.” 704 correct in holding that §correct in of Court review does not bar District 704 the Claims Court orders, the reason being that the challenged to and granted and grant the claims presented could not entertain by the District Court.” not allow APA review. 5 U.S.C. § 702. 35568-nys_69-2 Sheet No. 12 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 12 35568-nys_69-2 35568-nys_69-2 Sheet No. 13 Side A 10/28/2014 12:36:12 69 This is true 66 71 . 64 Each is applicable to is applicable Each typically 62 Consequently, district court 70 the amounts required for providing required the amounts 63 67 Justice Scalia explained that this definition of Justice Scalia explained that this 65 , 487 U.S. at 925 (Scalia, J., dissenting). , 487 U.S. at 926. 68 at 923. at 926. at 925. Id. Bowen Id. Id. Id. Id. Id. Bowen Justice Scalia noted there may be circumstances under which Justice Scalia noted there may be “unusual circumstance[But Justice Scalia deemed this an ].” Thus, Justice Scalia concluded, the Claims Court does have ju- concluded, the Claims Court Thus, Justice Scalia First, an analogy can be made between the Medicaid Act and “a Medicaid Act between the analogy can be made First, an 62. 66. 67. 68. 69. 63. 42 U.S.C. § 1396b(a) (2006). 64. 28 U.S.C. § 1491(a)(1). 65. 70. 71. money would not be adequate. For example, “if a State could prove money would not be adequate. For to deny Medicaid reimburse- the Secretary intended in the future State to commence a new suit for ment in bad faith, forcing the damages may not be adequate. each disputed period,” then money injunctive relief in district court In this circumstance, “an action for would lie.” Court’s ability to award mone- He argued that typically, the Claims tary relief would constitute NOARC. risdiction over the claim. Justice Scalia then took one additional claim. Justice Scalia then took risdiction over the was such whether the Claims Court’s jurisdiction step: he analyzed Justice could grant adequate relief. Specifically, that the court common-law the “established, centuries-old, Scalia considered specific relief will remedy”: “[T]o wit, that meaning” of “adequate sufficient to make damages are available and are be denied when the plaintiff whole.” 2013] of Congress.’”[an] Act . upon . . ‘founded ADEQUACY TOWARD 373 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 17 28-OCT-14 9:10 “adequate remedy” clarifies that “in all but the most extraordinary “adequate remedy” clarifies that plaintiffs whole. cases,” damages will suffice to make Medicaid services is a statutory act of Congress. And under the ex- is a statutory act of Congress. Medicaid services upon . . . Act[s] of Tucker Act, claims “founded press terms of the by the Claims Court. Congress” are reviewable review under the APA would be precluded review under the APA would be Massachusetts’ claim for Medicaid disallowance review. disallowance for Medicaid claim Massachusetts’ and federal government made by the offer for contract” unilateral perform- then accept by which the states to the states, extended Secretary mandates the provision that the Medicaid ance. Second, to each State” “shall pay though plaintiffs “may often prefer a judicial order enjoining a though plaintiffs “may often prefer harmful act or omission.” 35568-nys_69-2 Sheet No. 13 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 13 35568-nys_69-2 35568-nys_69-2 Sheet No. 13 Side B 10/28/2014 12:36:12 Notably, 74 Or so Justice 72 majority undertook four Bowen in a Nutshell : “This novel approach completely ig- : “This novel approach 75 73 Bowen D. ” Medicaid disallowances would be adequately ” Medicaid disallowances , 487 U.S. at 927 (Scalia, J., dissenting) (quoting majority). . . Bowen Id Id category of case Clearly, Justice Scalia reads § 704’s NOARC language as an im- if the U.S. Claims Court pro- In summary, when determining All this adds up to the introduction of what is arguably a new, is arguably of what introduction up to the adds All this Justice Scalia’s dissent takes issue with the majority’s approach takes issue with the majority’s Justice Scalia’s dissent 74. 72. that at least certain claims brought Interestingly, the Tucker Act provides 73. 75. into Claims Court for judicial review will be reviewed “pursuant to the standards into Claims Court for judicial review will §set forth in section 706 of title 5.” 28 U.S.C. Thus, whether Massa- 1491(b)(4). Claims Court or the district court would chusetts’s claim was adjudicated by the appear to have had no difference on the level of scrutiny that would have been applied. portation of law developed outside the context of the APA, at least portation of law developed outside Money is involved? Money is an in the context of monetary claims. dissent. ARC. This is the thrust of the Scalia claim for review of a vided an “adequate remedy” to Massachusetts’s the Medicaid disallowance decision, 374 NYU dis- Scalia’s Justice ARC. Had damages money the ARC: additional ANNUAL SURVEY OF cases for courts reviewing of law, federal the force sent received AMERICAN LAW§ money whether required to consider would be 704 compliance [Vol. 69:357 inquiry whole. This ARC make plaintiffs are likely to damages involving review for cases seeking APA most plaintiffs would direct and into for APA review of district court out money determinations for Tucker Act determinations. the Claims Court \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 18 28-OCT-14 9:10 nores the well-established meaning of ‘adequate remedy,’ which re- meaning of ‘adequate nores the well-established plaintiff in a of a remedy for a particular fers to the adequacy for the aver- than the adequacy of a remedy particular case rather issue.” the average case of the sort at age plaintiff in when Justice Scalia referred to the “well-established meaning” of when Justice Scalia referred to express language in §ARC, he was not relying upon any 704 or any APA’s NOARC language. Rather, prior court’s interpretation of the legal presumption (and he derived this meaning from a “traditional that “money damages are ordina- the common-sense presumption)” statutes that require the govern- rily an adequate remedy” under ment to pay parties money. Scalia anticipated. Scalia argued ARC inquiry. Specifically, Justice to the jurisdictional of whether relied upon an analysis that the Court inappropriately “as a Court served in the Claims 35568-nys_69-2 Sheet No. 13 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 13 35568-nys_69-2 35568-nys_69-2 Sheet No. 14 Side A 10/28/2014 12:36:12 majority did Bowen BOWEN Court’s different strands Bowen means or what its holding entails. III. is that it purports to reach a clear Bowen Bowen THE CONFUSION ABOUT In his dissent from the Court’s opinion, Justice Scalia intro- In his dissent from the Court’s that the What matters from all of this is not The problem with This confusion has had consequences. Lower courts and peti- This confusion has had consequences. not find a § What matters are the factors the Court con- 704 ARC. sidered in analyzing the issue—the kinds of adequate remedies it was looking for. 2013] had jurisdic- Court the Claims asked if Court The of inquiry. lines The was no. answer the it wanted; relief the plaintiff to give tion plaintiffs Act to allow passed the Tucker if Congress Court asked in the Massachusetts’s actions like to bring like Massachusetts noted that no. The Court the answer was here, again, Claims Court; the ade- suggested that law scholar regarded administrative a widely ADEQUACY TOWARD in § requirement quate remedy Congress’s determi- 704 was really administrative did not need to pursue nation that plaintiffs did not apply would not help sufficiently; the Court remedies if they the quality of re- Finally, the Court reviewed that possibility here. would get in the Claims Court—i.e.,view Massachusetts the Claims Court’s ability to with state law issues, the Claims Court’s expertise state-federal re- complicated and ongoing make decisions regarding 375 action here, and difference between the cause of lationships, the work. On this of the Claims Court’s typical the specialized nature Court’s remedies Court found the Claims basis, too, the inadequate. He asked, could money be an duced yet another line of inquiry. here, it probably could. If the adequate remedy? He decided that view, the inquiry would have en- Court had adopted Justice Scalia’s Massachusetts. ded. No district court review for \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 19 28-OCT-14 9:10 of analysis because, without clear guidance or consistent direction from on high, they can. Even the Supreme Court is confused; some- times without knowing it and sometimes without knowing why. They pick and choose between the holding by undertaking a cohesive analysis. In actuality, the Court’s holding by undertaking a cohesive jumping from one ARC to an- opinion confuses its ARC analyses, or conclusions. Even the other without identifying transitions does not fully or clearly reflect Court’s statement of its own holding and rejected. the ARCs the Court considered tioners do not know what 35568-nys_69-2 Sheet No. 14 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 14 35568-nys_69-2 35568-nys_69-2 Sheet No. 14 Side B 10/28/2014 12:36:12 , . It See Darby cases— Bowen court ex- 78 ’s mess in ’s mess Darby Bowen The in 1988, it has never 79 agency action” language of Bowen final —but in question the language 76 (emphasis added). 77 Darby court’s holding did not rely upon any § court’s holding 704 , it had concluded that “although the primary , it had concluded that “although Darby v. Cisneros Darby A. Supreme Court Confusion in the Bowen as part of an overview of the Court’s § as part of an overview 704 , the Court consistently uses “§ 10(c)” in lieu of “§ 704.” Darby Bowen at 146 (citations omitted). 80 Id. is necessary. Since the Supreme Court decided Since the Supreme Though the This Part will present the manifestations of of the manifestations present Part will This , 509 U.S. at 145 (citations omitted). 76. 509 U.S. 137 (1993). 77. The last line of 5 U.S.C. § 704 reads: 78. In 79. of its § The Court itself pointed out the rarity 704 interpretations: 80. Except as otherwise expressly required by statute, agency action otherwise fi- Except as otherwise expressly required whether or not there has been nal is final for the purposes of this section for a declaratory order, for any form presented or determined an application otherwise requires by rule and pro- of reconsideration, or, unless the agency for an appeal to superior vides that the action meanwhile is inoperative, agency authority. It perhaps is surprising that it has taken over 45 years since the passage of the It perhaps is surprising that it has taken this question. Professor Davis noted APA for this Court definitively to address in 1958 that § had been almost completely ignored in judicial opinions; 10(c) he reiterated that observation 25 years later, noting that the provision is rele- vant in hundreds of cases and is customarily overlooked. by the Court’s own admission, a small group. by the Court’s own admission, a three representative venues: (1) the Supreme Court; (2) the U.S. (2) the Court; Supreme (1) the venues: representative three (3) the Circuit; and District of Columbia Appeals for the Court of me- Texas. The ongoing District of for the Southern District Court of understanding that a new, revitalized demonstrate lee should Bowen reviewed designation for §509 U.S. at 143. Section 10(c) is the original 704, as it was codi- No. 79-404, 60 Stat. 237 (1946). fied in the original Public Law. Pub. L. analysis, the Court did summarize the central holding of did summarize the central holding analysis, the Court 376 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:357 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 20 28-OCT-14 9:10 was the last sentence of §was the last sentence addresses finality and, implic- 704, which of remedies. itly, exhaustion plained that, in thrust of [§ to codify the exhaustion requirement, Con- 704] was to avoid duplicating previously es- gress intended by that provision for review of agency tablished special statutory procedures actions.” 5 U.S.C. § 704. It is this language—and the “ § 704’s first sentence—at issue in again directly addressed the meaning of 5 U.S.C. § the meaning of 5 U.S.C. again directly addressed 704’s NOARC its interpre- the Court did hear a case requiring language. In 1993, tation of § 704— Darby 35568-nys_69-2 Sheet No. 14 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 14 35568-nys_69-2 35568-nys_69-2 Sheet No. 15 Side A 10/28/2014 12:36:12 as , note Darby doubt- Bowen Bowen court 84 ’s char- , it is his supra Bowen summary , Bowen Darby LARK Bowen Bowen . C characterization ’s EN G Y ’ Darby a holding based upon Darby , then, casts casts , then, TT 82 A analysis is perhaps best un- Bowen Thus, this summary of Thus, this summary Bowen 81 This maps closely to . It is possible these Justices under- . It is possible these 85 at least reflect the Court’s conclusion at least reflect the in the Claims Court is not an adequate Bowen opinion was unanimous as to the section opinion was unanimous Bowen as concluding that “Congress intended by as concluding that “Congress summary. Darby ’s discussion of §’s discussion ex- remedy 704’s administrative Bowen Bowen court’s summary of of summary court’s , 487 U.S. at 901 (emphasis added). Bowen Darby at 138. at 901–903. at 913 (White, J., concurring). at 922 (Scalia, J., dissenting) (quoting 83 . Though Justice Scalia’s Id. Bowen Id. Id. Id. opinion that most closely aligns to the opinion that most closely aligns ’s paraphrase of ’s paraphrase of Notably, the Justice White might have required that Justice White might have required dissented in Interestingly, though Justice Scalia The 81. 82. 83. 84. 85. Bowen 38, at 101). derstood as raising the possibility of a money damages ARC, he cast derstood as raising the possibility statutory ARC. At the outset of his analysis in terms of the special and effect of this provision his dissent, he wrote that “[t]he purpose not provide additional judicial is to establish that the APA ‘does Congress has provided special and remedies in situations where the adequate review procedures.’” equating §equating It ignores the statutory ARC. with the special 704 Court’s in- (1) the Claims reliance upon of and court’s discussion ARC of its jurisdictional relief (an element grant equitable ability to lack of focus and Court’s specialized and (2) the Claims inquiry), ARC). And while of its practical expertise (as part state law mentions the it fails to mention that haustion requirement, raised—without rejecting—Professor that Davis’s pronouncement a limit on that requirement. NOARC itself represented including the of Bowen adhere to his understanding that the Claims Court failed to provide adhere to his understanding that could not entertain and grant an ARC because “the Claims Court by the District Court.” the claims presented to and granted 2013] ADEQUACY TOWARD 377 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 21 28-OCT-14 9:10 passed muster with Justices Stevens, White, and Scalia, the authors Justices Stevens, White, and passed muster with in of all three opinions the central approving an opinion “reaffirming” stood they were from their previous case though it differed holding of a related, have insisted that that case. Justice Stevens might own analyses in Darby that § was not triggered because “the 704 NOARC preclusion ful and limited relief available substitute for review in the District Court,” substitute for review in the District the Court’s inquiry into the jurisdictional and, arguably, the practi- the Court’s inquiry into the jurisdictional cal ARC. acterization of 35568-nys_69-2 Sheet No. 15 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 15 35568-nys_69-2 35568-nys_69-2 Sheet No. 15 Side B 10/28/2014 12:36:12 , 90 ; (2) itself 92 Bowen and the Pigford v. but before Garcia v. Bowen Darby Bowen . But at least Jus- in majority and who majority itself. Perhaps they Thus, it is Justice it is Thus, Bowen 86 that is, of all the Jus- that is, Bowen Keepseagle v. Glickman Bowen Garcia v. Vilsack 91 itself. , 130 S. Ct. 1138 (2010). . Bowen should not depend upon should not depend Darby (2) black farmers— Bowen and Darby 88 ; and joined the majority in and joined the majority cert. denied —recognized be- the differences in 87 Bowen Darby Love v. Johanns Bowen differently if he had realized the differ- differently if he Darby Darby Garcia v. Vilsack majority were confused about what majority were confused summary of Bowen , 509 U.S. at 146. (3) Native American farmers— Darby 89 ; B. Confusion in the Lower Courts: Darby , was one of four filed by the same lead counsel, alleging the , was one of four filed by the same In each case, the plaintiffs alleged three violations: (1) the In each case, the plaintiffs alleged Perhaps Justices Stevens and White—asJustices Stevens Perhaps Jus- as the other well It seems plausible, if not likely, that even the Justices who con- if not likely, that even the Justices It seems plausible, In 2000, three Hispanic farmers filed a class action suit against In 2000, three Hispanic farmers . He was confirmed an Associate Justice in 1991. . He was confirmed an Associate Justice 89. 206 F.3d 1212 (D.C. Cir. 2000). 90. 194 F.R.D. 1 (D.D.C. 2000). 91. 439 F.3d 723 (D.C. Cir. 2006). 92. 15 U.S.C. § (2006). 1691(a)(1) 88. 563 F.3d 519 (D.C. Cir. 2009), 87. Court after Only Justice Thomas joined the Supreme 86. from discriminating against credit applicants “with respect to any from discriminating against credit Darby and (4) women farmers— Credit Opportunity Act (ECOA), USDA had violated the Equal which prohibits all creditors—including the federal government— the basis of the applicant’s “race, aspect of a credit transaction” on or marital status, or age”; color, religion, national origin, sex 378[§ statutory special established duplicating to avoid simply 704] NYUactions.” agency of for review procedures ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:357 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 22 28-OCT-14 9:10 Glickman tween the tices’, most reasonable. tices’, most concurred in the had joined or tices who joined in unanimously Scalia’s concurrence with this part of concurrence with Scalia’s the USDA had discriminated against plaintiffs as related to non- the USDA had discriminated against each decided that their support in each decided that the Court’s revising of the section discussing the Court’s revising drafted tice Blackmun, who stituted the are not alone. had held. They would have drafted would have drafted Court’s representation of ence between the of Court’s representation (USDA), alleging widespread the U.S. Department of Agriculture practices. The case, discriminatory lending and benefits Vilsack categories of plaintiff farmers: (1) same causes of action for four Hispanic Farmers, 35568-nys_69-2 Sheet No. 15 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 15 35568-nys_69-2 35568-nys_69-2 Sheet No. 16 Side A 10/28/2014 12:36:12 C- 2 , IVIL GRI- A A C IGHTS ISCRIMINA- R D TTENTION IGHTS AT THE A R IVIL C IVIL EPARTMENT OF ANAGEMENT OF In a short memo- ., C EARS OF M 94 ROCESSING OF Y U.S. D GRIC P A EPORT BY THE ESPITE IMELY TOF ’ D T EP : A R GAO-08-755T: The plaintiffs had brought their had brought The plaintiffs Section 741 allows those who had , 93 U.S. D EFICIENT 100 INDER THE D GAO/RCED-99-38, FFICE 99 E , H GRICULTURE B O As a result of the report, Congress con- As a result of the report, Congress A 98 FFICE , 2002 WL 33004124). (describing O 1. NOARC Question The and (2) the failure-to-investigate claim was and (2) the failure-to-investigate 95 ONTINUE TO Garcia 96 C ONTINUES TO CCOUNTABILITY EPARTMENT OF 4 (1999) C CCOUNTING D A T ’ . A , at *1 (holding that “plaintiffs’ allegations of failure to investigate civil , at *1 (holding that “plaintiffs’ allegations (quoting ROBLEMS 47 (1997)). OV EN TION CULTURE and a “failure.” FFORTS TATES TION G G Id. Id. : P 97 S E EAM OMPLAINTS In response, Congress enacted § 741, amending the statute of The adequate remedy the district court was referring to is the district court was referring The adequate remedy At first pass, the District Court for the District of Columbia de- of Columbia Court for the District the District At first pass, C T 99. Love v. Connor, 525 F. Supp. 2d 155, 156–57 (D.D.C. 2007). 100. Omnibus Consolidated and Emergency Supplemental Appropriations 98. 93. (JR), 2002 WL 33004124 (D.D.C. Garcia v. Veneman, No. Civ. A. 00-2445 94. 95. Cir. 2006). Garcia v. Johanns, 444 F.3d 625, 630 (D.C. 96. 97. NITED IGHTS (2008). Act of 1999. Pub. L. No. 105-277, § 741, 112 Stat. 2681, 2681-30 to 2681-31 (1998) (codified at 7 U.S.C. § 2279). Mar. 20, 2002). U R limitations for filing certain complaints under the ECOA’s anti-dis- limitations for filing certain complaints criminatory lending provisions. 7 U.S.C. § referred to as “§ 2279 (also 741”). This section, enacted to a 1997 report characterizing in 1998, was Congress’s response as being “in a persistent state of the USDA’s civil rights program chaos” 2013] the investigate to had failed USDA (3) the and benefits; credit of discrimination. complaints classes’ plaintiff ADEQUACY TOWARD the plain- as well as for class certification, plaintiffs’ motion nied the claims. tiffs’ failure-to-investigate 379 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 23 28-OCT-14 9:10 “not cognizable under the APA because ECOA provides ‘an ade- under the APA because ECOA “not cognizable quate remedy.’” failure-to-investigate claims under both the ECOA and the APA. But claims under both the ECOA failure-to-investigate rejected both statutory claims. the district court ducted hearings and determined that the USDA had “dismantled” ducted hearings and determined discrimination complaint its civil rights mechanisms, including processing and investigating. rights complaints do not state claims under ECOA or the APA”). rights complaints do not state claims under randum order, the court reasoned: (1) the plaintiff farmers failed court reasoned: (1) the plaintiff randum order, the because “the claim under the ECOA to state a failure-to-investigate a ‘credit transac- a discrimination complaint is not investigation of only governs meaning of ECOA,” and the ECOA tion’ within the credit transactions; 35568-nys_69-2 Sheet No. 16 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 16 35568-nys_69-2 35568-nys_69-2 Sheet No. 16 Side B 10/28/2014 12:36:12 104 105 103 .” 28 U.S.C. opinion, see raised the same Bowen Garcia and Love v. Connor, 525 F. Supp. Bowen v. Massachusetts : “The definitive interpre- Love see also and a failure to investigate is and a failure to Bowen 102 and then incorporated by reference the Love , as it did here. Thus, the district court concluded, the the district court Thus, Garcia 101 2. The Courts’ NOARC Analyses , 444 F.3d at 637 & n.14 (noting “the appellants used slightly more , 444 F.3d at 637 & n.14 (noting “the appellants (“To the extent permitted by the Constitution, any civil action to (“To the extent permitted by the Constitution, , 525 F. Supp. 2d at 158. Because See id. Garcia Love The district court complied with the court of appeals’s remand The district court complied with On interlocutory appeal, the D.C. Circuit affirmed the dismis- appeal, the D.C. Circuit affirmed On interlocutory regarding the to exercise its jurisdiction But the court declined 101. 102. 15 U.S.C. § 1691(a) (2006). 103. (D.C. Cir. 2006); Garcia v. Johanns, 444 F.3d 625, 637 104. 105. legal questions simultaneously and were docketed as companion cases, the district court typically reviewed the merits of analysis into its decision in 2d at 157 (applying this rule). § the “discretion” of the 1292(b) (identifying interlocutory appeal as being within court of appeals). no time at oral argument addressing the than four pages of their 59-page brief and APA failure-to-investigate claim”). to consider the NOARC question. In doing so, the district court to consider the NOARC question. first—and obligatorily—addressed one line from the The district court then selected alleged in an eligible complaint, if obtain relief with respect to the discrimination the date of the enactment of this Act, shall commenced not later than 2 years after not be barred by any statute of limitations.”); The D.C. Circuit decided the issue was insufficiently briefed. decided the issue was insufficiently The D.C. Circuit dismissed the limited record on appeal, the court Based upon the remanded to the failure-to-investigate claims and appeal of the APA of the §district court for closer inspection 704 NOARC issue, an adequate remedy for the namely, whether the ECOA provided claims and thus precluded APA plaintiffs’ failure-to-investigate review. 380 al- 1, 1997, before July USDA with the complaint[s]” “eligible filed NYUfile an to two years and 1996, 1981 between discrimination leging ANNUAL SURVEY OF complaint. additional AMERICAN LAW [Vol. 69:357 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 24 28-OCT-14 9:10 ability to bring an otherwise time-barred suit alleging past discrimi- suit alleging past time-barred bring an otherwise ability to by § as now allowed the ECOA, nation under an ade- 741, provides failed to that the USDA claims to the plaintiffs’ quate remedy district The complaints of discrimination. the plaintiffs’ investigate claims. the plaintiffs’ failure-to-investigate court dismissed had brought claims the plaintiffs sal of the failure-to-investigate of actions for The ECOA only provides causes under the ECOA. transactions, discriminatory credit held. the court of appeals not a “credit transaction,” claims. of the APA failure-to-investigate district court’s denial tation of this section [§ 704] comes from 35568-nys_69-2 Sheet No. 16 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 16 35568-nys_69-2 35568-nys_69-2 Sheet No. 17 Side A 10/28/2014 12:36:12 circuit 111 106 holding, the holding, Bowen 110 To adequacy, the court credited a variety of To adequacy, the court credited The specialness of the response was evident The specialness 109 107 108 , 525 F. Supp. 2d at 159 (“Even in the absence of the “special and , 525 F. Supp. 2d at 159 (“Even in the at 157. at 158. at 159. Id. Id. Id. Id. Id. Love Id. For this, the district court relied on a line of D.C. Circuit For this, the district court relied After this inquiry, the district court held that, its analysis of After this inquiry, the district court The court also concluded § 741 was an ARC because it was Relying entirely upon this single-sentence single-sentence entirely upon this Relying 106. 107. 108. 109. 110. 111. 112. 112 adequate” procedures Congress enacted to remedy plaintiffs’ particular injuries, circuit precedent precludes an APA suit against an agency charged with overseeing and policing discrimination where a direct cause of action for discrimination exists.”). Congress’s special and adequate remedy notwithstanding, Congress’s special and adequate “plainly ‘adequate.’” 2013]§ of interpretation” “definitive as the that identifying Notably, 704. Clark’s General Attorney quoting a line court chose district the Clark’s Attorney General Court cited “[T]he Supreme manual: that § the proposition on the APA for manual pro- 704 ‘does not Congress where the in situations judicial remedies vide additional procedures.’” adequate review special and has provided ADEQUACY TOWARD 381 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 25 28-OCT-14 9:10 components of the law: that it allowed the injured to file a com- components of the law: that it at her preference; that it plaint or pursue administrative remedies, complaints in a timely fashion, required the agency to process the hearing on the record, and award make its determination after a for de novo review of any appropriate relief; and that it provided court. agency determination in federal both from the legislative history, which included on point testimony history, which included both from the legislative situation-specific record, as well as from the in the congressional “the definition of in the elements of the law (e.g., tailoring evident remedy to and the limitation of the extension ‘eligible complaint’ that had been who actually filed complaints those persons neglected”). district court bifurcated its special statutory ARC inquiry into a “spe- its special statutory ARC district court bifurcated The court con- and an “adequate” component. cial” component cluded § because it was Congress’s 741 was a “special” remedy to the injuries of the[“express response ] very plaintiffs” who brought suit here. precedent makes clear that § 741 is an adequate remedy for the discriminatory complaint claims. plaintiffs’ failure-to-investigate circuit precedent, where “a direct The court explained that, under exists,” APA review is not availa- cause of action for discrimination ble. 35568-nys_69-2 Sheet No. 17 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 17 35568-nys_69-2 35568-nys_69-2 Sheet No. 17 Side B 10/28/2014 12:36:12 120 Abbott Writing for Writing The court of 113 118 issuing injunctions or issuing injunctions Thus, alternative rem- as having “interpreted As Judge Ginsburg ex- As Judge Ginsburg 114 119 115 Bowen , 130 S. Ct. 1138 (2010). 117 : “In evaluating the availability 116 ’s § 704 NOARC question went , 396 F.3d at 1272). Bowen cert. denied Garcia El Rio , which have “repeatedly affirmed” this affirmed” “repeatedly have , which , 487 U.S. at 901). , 902 F.2d at 89). , summarizing Bowen does not find another remedy adequate “if the does not find another remedy adequate Coker Bowen Bowen Bowen and reiterated in (quoting Coker v. Sullivan, 902 F.2d 84, 89 (D.C. Cir. 1990)). (quoting Coker v. Sullivan, 902 F.2d 84, (quoting (quoting El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t (quoting at 522–23 (quoting Id. Id. Id. Id. Id. Id. Id. On this review of its own NOARC jurisprudence, the court of On this review of its own NOARC With this analysis, the district court decided again NOARC did the district court decided again With this analysis, time, For the second the court of appeals further Unlike the district court, however, 113. 114. 115. 116. 119. 117. Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009) (quoting Bowen v. 118. 120. appeals overlays one Supreme Court maxim, established in appeals overlays one Supreme Court Laboratories Massachusetts, 487 U.S. 879, 904), holding on two grounds: (1) the text of the APA; and (2) concerns APA; and of the the text (1) grounds: on two holding of powers. and separations competency about court the plaintiffs’ APA-based failure-to-investigate not exist. It dismissed claims. clarified that 382 pre- beginning cases, NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:357 the merits of Circuit. This time, the court analyzed before the D.C. the court of ap- As did the district court, the NOARC arguments. peals turned to limited relief.’”remedy offers only ‘doubtful and \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 26 28-OCT-14 9:10 § provided 704 as precluding APA review where Congress otherwise a ‘special and adequate procedure.’” and adequacy of alternative remedies, however, the court must give and adequacy of alternative remedies, such that ‘only upon a show- the APA ‘a hospitable interpretation’ appeals interpreted this to be the Supreme Court’s pronouncement appeals interpreted this to be the case law—”theof the D.C. Circuit’s own established alternative rem- to relief under the APA, so edy need not provide relief identical genre.’”long as it offers relief of the ‘same statute enables de novo dis- edies will be adequate where another has afforded a private cause of trict court review or where Congress is subject to agency regulation. action against a third party who contempt orders for what the D.C. Circuit had earlier referred to as had earlier referred the D.C. Circuit orders for what contempt agency recalcitrance.” “every instance of by the Execu- [is] more effectively performed plained, such a “role scrutiny.” tive under congressional the D.C. Circuit, then-Judge Ruth Bader Ginsburg had earlier ex- Ginsburg had Ruth Bader Circuit, then-Judge the D.C. a supreme [itself] as “hesita[nt] to position that the court is plained enforcement,” of federal agency supervisor of Health & Human Servs., 396 F.3d 1265, 1272 (D.C. Cir. 2005)). 35568-nys_69-2 Sheet No. 17 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 17 35568-nys_69-2 35568-nys_69-2 Sheet No. 18 Side A 10/28/2014 12:36:12 or The court 125 121 This intent was This intent 122 124 , 487 U.S. at 904). Bowen , 396 F.3d at 1270 (quoting Abbott Labs. v. , 396 F.3d at 1270 (quoting Abbott Labs. 126 El Rio , 563 F.3d at 524. 123 at 523 (quoting Id. Id. Garcia Id. Id. Id. The court first rejected this futility argument, based upon the The court first rejected this futility The court of appeals concluded that if the plaintiffs were al- concluded that if the plaintiffs The court of appeals the appellants sought this According to the court of appeals, The court of appeals then held that “there is clear and convinc- held that “there of appeals then The court 121. 122. 123. 124. 125. 126. Gardner, 387 U.S. 136, 141 (1967))) (citing Gardner, 387 U.S. 136, 141 (1967))) (citing statutory reading of § 741 discussed above (i.e., the run-around ar- giving credence to the appel- gument), but then it held that “even must lose their APA failure- lants’ futility suggestion,” the appellants to-investigate claims because § 704 precludes them. lowed to pursue § direct review and APA failure-to-investi- 741(a) the direct relief allowed under gate review, they could obtain both requiring the agency to investigate the ECOA and declaratory relief the complainants with both their complaints. This would provide the kind of relief allowed by § 741(a) and the kind of relief af- forded by § despite Congress’s clear intent that complain- 741(b), ants be forced to choose. § of § 741(a) run-around 741(b) because, in practice, there was no meaningful § option. The court noted that “appellants of- 741(b) USDA never successfully imple- fered unrebutted evidence that the process.” mented the required administrative 2013] intent legislative of a contrary evidence and convincing clear ing of review.’” to judicial access restrict the courts should § that, by enacting ing evidence” intent expressed its 741, Congress claims and their ECOA able to pursue not be that complainants claims simultaneously. their failure-to-investigate ADEQUACY TOWARD 383 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 27 28-OCT-14 9:10 stated, “[the appellants] still would be unable to show that they lack stated, “[the appellants] still would an adequate remedy at law.” expressed by the choice Congress embedded within § Congress embedded by the choice expressed give 741: discrimination to investigate your claim of USDA another chance directly. Section of the alleged discrimination seek judicial review those options—§741 itself contains enables complainants to 741(a) court, while §file directly in district 741(b) allows eligible com- which judicial re- administrative remedies, after plainants to pursue these alternatives The court characterized view would be available. “[G]o[ complainants to make a clear choice: as requiring the ] to or first renew[court immediately ] their administrative complaints.” 35568-nys_69-2 Sheet No. 18 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 18 35568-nys_69-2 35568-nys_69-2 Sheet No. 18 Side B 10/28/2014 12:36:12 , as ade- El Rio As long as was the Su- 131 Bowen in which the court of , 906 F.2d at 751). 134 , For its reasoning, the court re- The court of appeals derived this of appeals derived The court 133 127 . 132 Bowen and then held that private causes of action and then held that private causes Women’s Equity Action League Bowen than a case brought under the APA. than a case brought 130 , 563 F.3d at 525 (emphasis added). at 525 (citing Women’s Equity Action League v. Cavazos, 906 F.2d at 525 (citing Women’s Equity Action (quoting (internal quotation marks omitted). El Rio Santa Cruz Neighborhood Health Center, Inc. v. U.S. El Rio Santa Cruz Neighborhood Health . Thus, in the D.C. Circuit, an alternative remedy can be Circuit, an alternative remedy Thus, in the D.C. Id. Id. Garcia Id. Id. Id. Id as an APA lawsuit against the regulating agency, but against the regulating agency, as an APA lawsuit 129 , because “[t]he relevant question under the APA . . . is not relevant question under the APA , because “[t]he 128 .” Such alternative remedies are adequate, the court explained in remedies are adequate, the court Such alternative that such a construction of Finally, the court of appeals held The adequate remedy the court was referring to was the ECOA to was referring was the court remedy adequate The 127. 128. 129. 130. 131. 132. 133. 134. 396 F.3d 1265 (D.C. Cir. 2005). While observing that § 704 was not intended to provide addi- Congress has provided spe- tional judicial remedies “where the the Court explained cial and adequate review procedures,” to avoid such duplica- that “[t]he exception that was intended effective Congress is suit remedy provided by whether the private quate Garcia wrongdoer are lawsuits against the third-party whether private §with 704 is consistent 384 NYUUSDA the proof that offer can appellants the extent “[T]o itself: ANNUAL SURVEY OFcredit pro- of its in the administration against them discriminated AMERICAN LAWto recover be entitled appellants will the ECOA] grams, [under [Vol. 69:357 also in- as appropriate, fees, and, and attorneys’ money damages relief.” and declaratory junctive \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 28 28-OCT-14 9:10 holding from its precedent, finding private rights of action against rights of action finding private from its precedent, holding adequate to by a federal agency sufficiently a third party monitored against the agency as to preclude APA claims remedy wrongdoing itself. ferred to Services Department of Health and Human appeals reviewed adequate even if its precipitating action is “more arduous[ its precipitating action is “more adequate even if ] and less effective” 742, 744 (D.C. Cir. 1990); Coker v. Sullivan, 902 F.2d 84, 88 (D.C. Cir. 1990); 742, 744 (D.C. Cir. 1990); Coker v. Sullivan, Cnty. Valley, Inc. v. Regan, 709 F.2d Council of and for the Blind of Delaware 1521, 1527 (D.C. Cir. 1983)). the alternative remedy is “of the same genre as that offered by an the alternative remedy is “of the APA,” it will be a § ARC. 704 against third parties can be ARCs precluding APA review. In against third parties can be ARCs the D.C. Circuit expressed its understanding that the D.C. Circuit expressed its understanding meaning of ‘adequate remedy’ preme Court’s articulation of “the under § 704 of the APA”: 35568-nys_69-2 Sheet No. 18 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 18 35568-nys_69-2 35568-nys_69-2 Sheet No. 19 Side A 10/28/2014 12:36:12 in 135 Bowen as holding that an APA Bowen Garcia employed which practice the which practice court explained how court explained 136 Bowen Garcia itself drew from the Attor- and Garcia Bowen Garcia ’s varied ARC analyses to conduct its ’s varied ARC analyses to conduct upon which to rest its own analysis: leads to the D.C. Circuit’s practice of “fo- leads to the D.C. Bowen Bowen court nor the Bowen 3. Comparing El Rio , 563 F.3d at 527 (affirming the dismissal of the appellants’ APA , 563 F.3d at 527 (affirming the dismissal , 487 U.S. at 903 (internal quotation marks omitted) (discussed by , 396 F.3d at 1270. , 396 F.3d at 1270 (quoting Bowen v. Massachussetts, 487 U.S. 879, , 396 F.3d at 1270 (quoting Bowen v. Massachussetts, This statement is one 138 El Rio El Rio Garcia Bowen 137 The D.C. District Court’s decision in The D.C. District Court’s decision D.C. District Court selected a First, it is noteworthy that the Neither the 135. 136. 137. 138. tion should not be construed to defeat the central purpose of purpose the central to defeat not be construed should tion ac- of agency review of judicial broad spectrum a providing the that relief in Court concluded that case, the tion.” In ‘special and adequate not the kind of “is plainly Claims Court court of its normal oust a district that will review procedure’ a dis- reviewability of Not only was under the APA.” jurisdiction “doubtful,” the Claims Claims Court decision by the allowance relief, jurisdiction to grant prospective Court lacked equitable of the interac- considered appropriate in light which the Court Medi- states’ administration of an approved tion between the HHS Secretary’s regulatory interpretation. caid plan and the “will al- to assume a money judgment The Court was unwilling . . . .” substitute for prospective relief ways be an adequate cus[ing] on whether a statute provides an independent cause of a statute provides an independent cus[ing] on whether review procedure,” action or an alternative this description of this description two contradictory ways: (1) explicitly construing two contradictory ways: (1) explicitly that a § remedy that is both “special” and “adequate”; 704 ARC is a and (2) drawing upon and without faithful own analysis, though without acknowledgment merits discussion. application. Each of these moves single sentence out of “§ additional judicial remedies in situations 704 does not provide special and adequate review pro- where the Congress has provided cedures.” 903–05 omitted). (1988)) (citations failure-to-investigate claims but remanding the appellants’ APA non-credit disaster by benefit claims, as well as the other jurisdictional or dismissal arguments raised the government but not adequately briefed for interlocutory appeal). Love v. Connor, 525 F. Supp. 2d 155, 158 (D.D.C. 2007)). 2013] ADEQUACY TOWARD 385 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 29 28-OCT-14 9:10 court was presumably following when it held in court was presumably failure-to-investigate claim was not available. The appellants were failure-to-investigate claim was not “other adequate remedy”—theleft to seek relief through their ECOA. 35568-nys_69-2 Sheet No. 19 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 19 35568-nys_69-2 35568-nys_69-2 Sheet No. 19 Side B 10/28/2014 12:36:12 to 142 to 139 Love were being heard court’s conclusion 141 Garcia , 563 F.3d at 527. does not, in and of to decide the § 704 and Bowen 143 Bowen Love is both a restatement of the Bowen The Court explains that “the The Court explains district court would not be as . See also Garcia . For this reason, we must read 140 Garcia Garcia Garcia , note 38 supra , LARK . First, it contradicts the decision, the Court construes the Attorney Gen- decision, the Court court uses this sentence from the Attorney Gen- from the Attorney this sentence court uses . C ’s NOARC implications. into his order in EN , 487 U.S. at n.36. G Bowen Y , 525 F. Supp. 2d at 158. Because Love ’ Bowen at 903. Garcia Bowen TT A Bowen Id. Id. Love Additionally, the analysis the district court undertook based Additionally, the analysis the district Thus, according to the Supreme Court itself, the line singled to the Supreme Court itself, the Thus, according This second move by the The 139. 140. 141. 142. 143. understand simultaneously before one district court judge, the judge elected to incorporate his simultaneously before one district court judge, the judge elected to incorporate analysis from eral’s reference to “special and adequate review procedures” as to “special and adequate review eral’s reference interpretation that §“also fit[ting] the 704 was intended only to rules of finality.” codify traditional itself, follow unexhausted administrative ARC, as well as a direction that the unexhausted administrative ARC, follow “the specific procedures” court should require plaintiffs to a particular agency’s action.” statutorily created for “review [of] of the “special and adequate” language out by the D.C. District Court in out by the D.C. District Court in determination that there is a This contrasts with the district court’s of ARC. single, “definitive interpretation” 386 Act, Procedure Administrative on the Manual General’s ney NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:357 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 30 28-OCT-14 9:10 eral’s Manual as a starting point to discuss the special statutory the special point to discuss as a starting eral’s Manual explain- footnote includes an interesting course, but it also ARC, of mean. In footnote and adequate” could likewise ing what “special 36 of the ‘special and adequate review procedures’ to which [Attorney Gen- review procedures’ to which ‘special and adequate administra- could well have been the various eral Clark] referred traditionally been that litigants have been tive-level procedures before coming into court.” required to exhaust that the Attorney General’s “special and adequate” language is a that the Attorney General’s “special ARC; namely, the dis- reiteration of the unexhausted administrative inspection of any administrative trict court does not undertake an it constructs a new two-part remedy exhaustion in this case. Second, language. Of all the analyt- test based on the “special and adequate” in ical methods used by the Court test is not one. NOARC question, this two-part it were not for the first problem, much of problem, of course, if counter or complement Professor Davis’s contention that § contention Davis’s Professor or complement counter 704 pri- requirement—the an exhaustion marily codified ad- unexhausted remedies ARC. ministrative 35568-nys_69-2 Sheet No. 19 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 19 35568-nys_69-2 35568-nys_69-2 Sheet No. 20 Side A 10/28/2014 12:36:12 was by . The dis- Bowen Bowen reasoned that “the crit- If APA claims were al- If APA claims were This reasoning sounds analyses to support its analyses to support 144 145 Garcia Bowen district court used district court used Garcia With this analysis, the district court advocated yet an- With this analysis, the district at 159. at 160 (emphasis in original; internal quotation marks omitted). (quoting Coker v. Sullivan, 902 F.2d 84, 89 (D.C. Cir. 1990)). plaintiffs allege is only a different kind of government plaintiffs allege is only a different 146 Id. Id. Id. court’s recitation of the limitations of the Claims Court. court’s recitation of the limitations The second way the The second way This real-relief inquiry is more like the jurisdictional ARC in- This real-relief inquiry is more Additionally, the district court in Additionally, the district court in injury 144. 145. 146. 2013] re- Court Supreme or how the if unclear it is entirely that namely Be- language. and adequate” “special General’s on the Attorney lied upon as to its reliance itself was unclear Supreme Court cause the probably language, it was and adequate” of the “special or construal closely so heavily and court to rely for the district not advisable for its test it derived adequate” two-part “special and upon the ADEQUACY TOWARD determination—regardlessNOARC a “spe- clear and useful of how test would be. cial and adequate” among the many choosing from 387 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 31 28-OCT-14 9:10 other departure from the special statutory ARC inquiry. Rather other departure from the special contemplated this injury and how than analyzing whether Congress the district court focused its sights it should be redressed in court, on the plaintiffs’ injury—rather its action—and than whether or real relief, even if it is not the not a court has jurisdiction to grant expressly requested relief. practical ARC or special statutory quiry than it is like either the as ARC inquiry, both of which were also raised by the district court, more like a practical ARC inquiry than a special statutory ARC in- more like a practical ARC inquiry with what remedies the quiry. Here, the court is more concerned than whether Congress wanted this deciding court can provide well a particular way. This mirrors the kind of problem to be solved in Bowen lowed where direct causes of action would suffice, the courts might causes of action would suffice, lowed where direct monitoring agency function- be put into the position of needlessly rather than a case or contro- ing, acting as a federal agency overseer court relied upon then-Judge versy decider. Thus, the district remedies are adequate, federal Ginsburg’s statement that “if other courts will not oversee the overseer.” trict court buttressed its holding that the plaintiffs had a “special its holding that the plaintiffs trict court buttressed by expressing its remedy precluding APA review and adequate” beyond the traversing unnecessarily into territory “concern about of the courts.” institutional competence NOARC conclusion—even heavily on the after it purported to rely of §“definitive interpretation” derived from 704 it ical benefit.” 35568-nys_69-2 Sheet No. 20 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 20 35568-nys_69-2 35568-nys_69-2 Sheet No. 20 Side B 10/28/2014 12:36:12 ’s cert. de- Bowen Bowen expressly ig- court was as ’s jurisdictional Garcia Garcia , the plaintiffs sued the Bowen approach barely resem- 147 But unlike the district ’s special statutory ARC, Garcia , the district court was ad- , the district similarly applied and mis- 148 , the Court was focused on was focused Court , the Garcia that relied upon the “special This is an issue entirely unaddressed Bowen Garcia Garcia Id. Bowen The district court went so far as to cast this The district court went so far as to cast Bowen Court may have tried to apply Court was entirely unclear about what Court was entirely unclear about . In See id. , the court of appeals did not bifurcate its , the court of appeals did not bifurcate Garcia Bowen Bowen Bowen can be remedied in a non-APA suit, not the identity of the can be remedied in a non-APA suit, approach. . Like the district court, the court of appeals started . Like the district court, the court injury court’s analysis. . Because the Bowen Bowen action but could be requested in cases categorically like the be requested in cases categorically action but could the district court in action. Conversely, Bowen These strings of analysis indicate that the These strings of Also, the district court’s quasi-jurisdictional ARC and quasi-jurisdictional district court’s Also, the The D.C. Circuit’s decision in 148. Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009) (quoting Bowen v. 147. the identity of the defendant of The district court also concluded that , 130 S. Ct. 1138 (2010). Bowen Massachussetts, 487 U.S. 879, 904 (1988)) (internal quotations omitted)), nied holding as intrinsic to a § clear, what matters is 704 analysis: “As the cases make whether the target in that potential alternative action.” the non-APA alternative action is irrelevant to its inquiry regarding the adequacy the non-APA alternative action is irrelevant to argue that much of the D.C. Circuit of the remedy. The plaintiffs had tried § actions against the 704 precedent was distinguishable because it concerned whereas in agency to enforce third-party actions, USDA to redress its own actions. by the 388 in- ARC jurisdictional the not quite it is also But above. discussed NYU in undertaken quiry ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:357 various holdings—andin its analysis was central to its what was not—the no guidance to draw upon. Ac- district court had little or cordingly, though the the to the NOARC question at hand, \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 32 28-OCT-14 9:10 “special and adequate” ARC inquiry. Rather, its special and ade- “special and adequate” ARC inquiry. quate ARC looked something like court, and unlike jurisdictional ARC analyses differed in focus. jurisdictional ARC to grant all focused on a court’s jurisdiction ARC analysis ostensibly requested in the including relief that was not the relief requested, Bowen Bowen whether real relief could be granted by the powers of another the powers of be granted by real relief could whether court—not a district court—but in dressing a situation in which real relief could be granted under a could be granted real relief a situation in which dressing court. law, not in a different different §untethered in its as it could be, despite 704 NOARC methodology of § of a “definitive interpretation” its early invocation 704 offered by bles the nored the relief requested, focusing instead on what relief the court requested, focusing instead on what nored the relief redress the injury. believed would actually and adequate review procedure” language the Supreme Court had and adequate review procedure” imported from the Attorney General. applied its analysis with a summary of 35568-nys_69-2 Sheet No. 20 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 20 35568-nys_69-2 35568-nys_69-2 Sheet No. 21 Side A 10/28/2014 12:36:12 jurisdic- court, the Bowen Bowen But rather than 150 ’s jurisdictional ARC in- Bowen This meant that, for example, Thus, despite reaching a differ- reaching Thus, despite 151 149 , 396 F.3d at 1270). court, which found NOARC, the found NOARC, court, which applied this holding—or reached El Rio Bowen Bowen 152 undertook a similar special statutory ARC undertook a similar 153 , 487 U.S. at 901). Garcia Bowen for the proposition that “doubtful and limited relief” for the proposition ’s in an additional way—it an inquiry into introduced (quoting at 522 (quoting El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. at 522–23 (quoting at 522. Id. Id. Id. Id. Id. Bowen Bowen Setting aside the D.C. Circuit’s failure to explain how de novo Setting aside the D.C. Circuit’s failure This sort of ARC inquiry invokes This sort of ARC inquiry invokes But the court of appeals’s jurisdictional ARC inquiry differed But the court of appeals’s jurisdictional But also like the district court, and like the But also like the 149. 150. 151. 152. 153. review is an adequate alternative for §review is an adequate alternative 706 review—which allows, 2013] this consider Congress Did inquiry. to the approach a gestalt with then If yes, remedied? be how it should and of injury sort particular de- The court of appeals no APA review. exists and there’s an ARC statute of extended the when Congress that in this case, termined a remedy it did consider the ECOA, for actions under limitations at issue. injury for the particular ADEQUACY TOWARD 389 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 33 28-OCT-14 9:10 court of appeals in court of appeals ent conclusion than the than the ent conclusion an ARC if it also afforded de novo an alternative remedy would be review by a district court. Dep’t of Health & Human Servs., 396 F.3d 1265, 1272 (D.C. Cir. 2005)). quiry, which is focused on a court’s jurisdictional ability to give the quiry, which is focused on a court’s also differs from the aggrieved sufficient relief. But it tional ARC inquiry because it focuses on the district court’s ability tional ARC inquiry because it focuses different statute, rather than on to offer sufficient relief under a In this way, the court of ap- another court’s ability to offer relief. lower court’s analysis. peals seemed to be guided by the from be afforded a plaintiff if it were to the standard of review that would than the APA review. The court of receive an alternative ARC rather appeals found the § 741 options sufficient alternatives to § 706 APA review because both § 741(a) and (b) ultimately allowed de novo review in a district court. inquiry. trying to determine how trying to determine it—the the D.C. Cir- determined that this allowed court of appeals remedy need own precedent that “the alternative cuit to apply its APA, so long as it identical to relief under the not provide relief offers relief of the ‘same genre.’” court of appeals’ analysis meandered through other ARC inquiries, analysis meandered through other court of appeals’ doing so. First, it acknowledging that it was without explicitly quoted remedy inadequate. will render an alternative 35568-nys_69-2 Sheet No. 21 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 21 35568-nys_69-2 35568-nys_69-2 Sheet No. 21 Side B 10/28/2014 12:36:12 157 Bowen court consid- http://www.garciaclass Bowen “Many” of the OCR After describing the 155 156 the Supreme Court consid- Court Supreme the available at . The appellants had submitted The appellants Bowen 154 Bowen did the Supreme Court consider Supreme Court did the Bowen court of appeals’s opinion differed from the court of appeals’s , 563 F.3d at 524. at 156. at 160–61. on Ms. Gray submitted a second supplemental declaration Garcia Id. Id. Garcia The 156. 157. 154. 155. Decl. of Rosalind Gray, Joint Appendix at 154, Garcia v. Johanns, 444 After all the investigations and findings of discrimination, after After all the investigations and findings Service Administration] was all the findings that FSA [Farm regulations, after all the mil- not in compliance with civil rights of administrative complaints lions paid by FSA in settlement in debts that FSA has for- and after the many more millions change in the way programs given, there still has not been any exclusion of minority farmers are administered. . . . [S]ystemic procedure for FSA. . . . Conse- remains the standard operating farmers who have lost their quently, there have been countless process their complaints. land or died waiting for USDA to action.org. F.3d 625 (2006) (Nos. 04-5448 & 05-5002), Oct. 18, 2006, testifying that the problems at OCR she described in her earlier analysis in at least one more way. Where the analysis in at least ered an alternative remedy’s standard of review. In fact, it could review. In fact, standard of alternative remedy’s ered an nowhere in not, because 390 review—the or capricious arbitrary things, other among Cir- D.C. NYU in where to explain also fails cuit ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:357 ARCs. under alternative plaintiff would get of review a the standard analysis—its only relevant the Supreme Court’s Rather, jurisdic- analysis—focusedtional ARC equita- powers of relief: on the court’s jurisdictional In this respect the court of appeals’s ble and/or legal. nothing like ARC inquiry looks \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 34 28-OCT-14 9:10 two declarations by Rosalind Gray, director of the USDA Office of by Rosalind Gray, director of the two declarations during the years just after §Civil Rights (OCR) was enacted. 741 she started at the OCR in 1998, it Ms. Gray had testified that when disorder.” was “in a state of confusion and ered and credited practical ARC concerns (to Justice Scalia’s bewil- practical ARC concerns (to Justice ered and credited them. The court of appeals expressly dismissed derment), the court evidence that had introduced unrebutted noted that the appellants required adminis- successfully implemented the “the USDA never under §trative process” 741(b). staffers “were responsible for the poor service provided farm cus- staffers “were responsible for the indifferent to the exclusion of mi- tomers,” and they were “at best, nority farmers from USDA programs.” disarray and destruction of complaints she witnessed at the OCR, as disarray and destruction of complaints and obstacles she confronted to well as the efforts she expended system, she testified: change OCR’s complaint processing 35568-nys_69-2 Sheet No. 21 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 21 35568-nys_69-2 35568-nys_69-2 Sheet No. 22 Side A 10/28/2014 12:36:12 160 . A . , mis- http:// http:// Bowen Bowen available at available at Castelano v. Clinton , 130 S. Ct. 1138 (2010). Castelano v. Clinton rejected the practical ARC rejected the practical , without any apparent recogni- , as the case was originally filed against cert. denied Garcia . But without clear direction from . But without clear Bowen refused even to acknowledge. Despite refused even to Bowen Even though, as appellants demonstrated, Even though, as jurisprudence, it should be no surprise that jurisprudence, it should be no surprise 159 158 Garcia Castelano v. Rice Bowen , and rejected , 563 F.3d at 524. opened, Bowen Garcia C. Confusion Among Practitioners: ’s labyrinthine analysis, how were they to know? ’s labyrinthine analysis, how were , their analyses meandered. These courts applied These courts applied , their analyses meandered. Bowen With both the Supreme Court and the federal courts confused With both the Supreme Court and As part of the Intelligence Reform and Terrorism Prevention As part of the Intelligence Reform Both the D.C. District Court and the D.C. Circuit Court of Ap- Court and the D.C. Circuit Both the D.C. District Despite this uncontroverted evidence that the USDA adminis- USDA that the evidence uncontroverted this Despite Thus the court of appeals in Thus the court of 158. 159. 563 F.3d 519 (D.C. Cir. 2009), 160. Also known as applied Court precedent. But with tion that they were mangling Supreme Bowen by § 704 and the Bowen how NOARC operates. One re- practitioners themselves are unsure by the U.S. District Court for cent case, litigated in but not decided how a lack of clear §the Southern District of Texas, illustrates 704 argue NOARC for themselves, guidance leaves practitioners to or not: whether their arguments make sense official capacity. Second Amended Class Secretary of State Condoleeza Rice in her 53, Action Complaint & Petition for Declaratory, Injunctive & Mandamus Relief at Castelano v. Rice, 7:08-cv-00057 (S.D. Tex. filed Aug. 16, 2008), Act of 2004 (IRTPA), Congress required the Department of Home- Act of 2004 (IRTPA), Congress required Decl. of Rosalind Gray, Joint Appen- testimony “continue to plague OCR.” Supp. (2009) (No. 08-5110), dix at 470, Garcia v. Vilsack, 563 F.3d 519 www.garciaclassaction.org. peals attempted to apply peals attempted 2013] of the court option, a meaningful was not process appeals trative render that this should argument rejected the appellants’ appeals § of § adequate for purposes 741(b) not practical consid- 704. Such of § a textual reading are trumped by erations 741, which indicates meant §Congress ADEQUACY TOWARD choice to appellants. a meaningful 741 to present choice for a meaningful this intention of appeals held The court a §was enough for of whether that intention 704 ARC, regardless not. was borne out or 391 www.aclu.org/pdfs/immigrants/passport_amendedcomplaint.pdf. The author worked as a junior associate at Hogan & Hartson, LLP (now Hogan Lovells, LLP), on behalf of the plaintiffs in this case. \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 35 28-OCT-14 9:10 such a choice was not in reality adequate. such a choice was inquiry the Supreme Court considered—andinquiry the Supreme credited—in door this, in January 2010, the Supreme Court denied the appellants’ 2010, the Supreme Court denied this, in January petition for certiorari. 35568-nys_69-2 Sheet No. 22 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 22 35568-nys_69-2 35568-nys_69-2 Sheet No. 22 Side B 10/28/2014 12:36:12 Castelano This border- 161 without further ac- DOS argued the 163 plaintiffs sought relief Castelano 162 1. The NOARC Question(s) 73 Fed. Reg. 18,384. , centered on a proposed class of plaintiffs seeking judicial , centered on a proposed class of See In response to the plaintiffs’ complaint, DOS filed a partial mo- In response to the plaintiffs’ complaint, The impending WHTI requirement that every person, includ- that WHTI requirement The impending as “filed with- DHS identified an application Apparently, when either of Mexican-American Further, these applicants all were filed suit in the U.S. A number of these passport applicants 161. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 162. 163. Defendants’ Partial Motion to Dismiss for Failure to State a Claim Pursu- .” In some cases, DHS even refused to return the original docu- DHS even refused to return the .” In some cases, 108-458, §118 Stat. 3638, 3810–11 7201, (2004). ant to Fed. R. Civ. P. 12(b)(6) at 5, 7–8, (S.D. Tex. Castelano v. Rice, 7:08-cv-00057 filed Oct. 15, 2008). tion to dismiss, relying upon a § 704 argument. 392to de- (DOS) of State Department and the (DHS) Security land NYU a present all travelers that for ensuring a plan and implement velop ANNUAL SURVEY OF borders. at all U.S. or secure identification passport AMERICAN LAW [Vol. 69:357 a U.S. borders prompted a passport at the citizens, present ing U.S. those living in U.S. applications, particularly from flurry of passport applicants began thereafter, some passport border states. Sometime had been from DHS indicating their applications receiving notice action.” “filed without further to adjudicate the it was expressing its intent not out further action,” would neither In other words, the applications application further. They would just be “filed be granted nor denied. tion certificates, school with the application. Birth mentation submitted by DHS without records were all held records, and immunization return them. an expression of DHS’s intent to surnames, and they had all been descent or had Hispanic-sounding birthed—or someone who had been obtained citizenship through birthed—by other border state. a midwife in Texas or of Texas. The case, District Court for the Southern District v. Clinton review of these DHS actions. The \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 36 28-OCT-14 9:10 on three grounds: (1) 8 U.S.C. § 1503(a), which allows individuals reviewed by a district court if to have their claims to U.S. citizenship right on the basis of their not they have been denied a U.S. national §being a U.S. citizen; (2) 5 U.S.C. 706 (the APA); and (3) constitu- process grounds. tional equal protection and due plaintiffs’ APA claim was precluded because the citizenship deter- plaintiffs’ APA claim was precluded identification plan became known as the Western Hemisphere known as plan became identification (WHTI). Travel Initiative 35568-nys_69-2 Sheet No. 22 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 22 35568-nys_69-2 35568-nys_69-2 Sheet No. 23 Side A 10/28/2014 12:36:12 , a The 168 , which DOS The plaintiffs U.S. v. Fausto 166 Bowen 165 sentence notwithstanding, Congress did in- sentence notwithstanding, Congress And, finally, DOS cited to 164 as part of its § DOS ar- 704 argument. Rather, 2. NOARC Analyses The Parties’ Bowen Bowen at 9. at 8 (quoting 5 U.S.C. § 702). (quoting Abbot Labs. v. Gardner, 387 U.S. 136, 140 (1967)) (internal 167 Id. Id. Id. Id. , quoting to its special statutory ARC analysis: “When Con- , quoting to its special statutory The plaintiffs countered DOS’s motion. They cited first to The plaintiffs countered DOS’s courts applying “these prin- According to the plaintiffs, federal Notably, DOS’s partial motion to dismiss did not cite to or partial motion to dismiss did Notably, DOS’s The plaintiffs countered. In response to their arguments, In response countered. The plaintiffs 164. 165. 166. Partial Motion to Dismiss for Fail- Plaintiffs’ Opposition to Defendants’ 167. 168. ure to State a Claim Pursuant to Fed R. Civ. P. 12(b)(6) at 8, Castelano v. Rice, ure to State a Claim Pursuant to Fed R. 487 7:08-cv-00057 (S.D. Tex. filed Nov. 4, 2008) (quoting Bowen v. Massachusetts, U.S. 879, 903 (1988)). Bowen a general authorization for review gress enacted the APA to provide it did not intend that general of agency action in the district courts, the previously established special grant of jurisdiction to duplicate specific agencies.” statutory procedures relating to §ciples” are “reluctant” to find 704 NOARC preclusion. quote from 2013] § under mination of §purposes for an ARC was 1503(a) 704. §Therefore, to get relief plaintiffs’ ability frustrates the 1503(a) a § from conducting court is precluded APA, and the under the 706 analysis. and capricious arbitrary a second which raised DOS filed a reply, discussed below, which are ADEQUACY TOWARD or alterna- claims also the plaintiffs’ APA question: Are NOARC plaintiffs’ constitu- by yet another ARC, namely the tively precluded tional remedies? 393 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 37 28-OCT-14 9:10 relied on for the proposition that “general grants of jurisdiction relied on for the proposition that of a specific statute that confers cannot be relied upon in the face and conditions jurisdiction.” non-APA Supreme Court case closely predating non-APA Supreme Court case closely citation omitted). gued that § review because of the express 1503(a) precluded APA language of § remedy in a court”). Addi- 704 (“no other adequate to language in §tionally, DOS cited 702 that it argued “provid[es] other statute that APA jurisdiction where ‘any that there is no [or impliedly forbids the relief grants consent to suit expressly which is sought].’” argued that, this a broad spectrum of administrative tend that the APA would “cover actions.” 35568-nys_69-2 Sheet No. 23 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 23 35568-nys_69-2 35568-nys_69-2 Sheet No. 23 Side B 10/28/2014 12:36:12 169 170 cited to “found In this way, 172 Bowen note 166, at 9. Roshandel 173 supra to their case, “[i]t is to their case, “[i]t as finding that Mas- as finding that , 2008 WL 1969646, at *4. Bowen Bowen The plaintiffs then quoted The plaintiffs then Roshandel 171 . The Supreme Court in Bowen provide an ARC. DOS argued that the plain- provide an ARC. DOS argued that that the ability to seek a declaration of citizen- that the ability , 487 U.S. 879, 903 (1988), for support of its holding that , 487 U.S. 879, 903 (1988), for support together Bowen ’s discussion of the Claims Court’s lack of equitable ’s discussion of makes clear that the § makes clear that exception is limited, 704 NOARC (quoting Roshandel v. Chertoff, No. C07-1739MJP, 2008 WL (quoting Roshandel v. Chertoff, No. Id. Id. Id. Bowen Bowen adopting the plain- DOS replied to the plaintiffs’ opposition, 171. 172. 173. Defendants’ Reply to Plaintiffs’ Opposition to Defendants’ Partial Mo- 169. 170. Partial Motion to Dismiss for Fail- Plaintiffs’ Opposition to Defendants’ tion to Dismiss for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6) at tion to Dismiss for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6) 3, Castelano v. Rice, 7:08-cv-00057 (S.D. Tex. filed Nov. 17, 2008). sachusetts could seek APA review for agency action “even though seek APA review for agency action sachusetts could in the seek a refund for such reimbursements the State could the Tucker Act.” Claims Court under the plaintiffs argued. They summarized the plaintiffs argued. arguing that “the entirety of the tiffs’ “duplicative” language and available under their Due Process, relief they seek is adequate and §Equal Protection and 8 U.S.C. 1503(a) claims.” 394 Dis- Western an unpublished of the example cited then plaintiffs NYU an found that court district which the case, in of Washington trict ANNUAL SURVEY OFof NOARC for purposes only be adequate remedy would alternative AMERICAN LAW APA. under the the remedy available “duplicative” of if it were [Vol. 69:357 that § concluded The plaintiffs to avoid duplication 704’s intent § of the proper this restatement leads to “If NOARC analysis: 704 which is from that relief that is different can result in APA review the latter does alternative statutory scheme, then available under an is still available. remedy and APA review not afford an ‘adequate’ \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 38 28-OCT-14 9:10 1969646, at *5 (W.D. Wash. May 5, 2008). The district court in 1969646, at *5 (W.D. Wash. May 5, 2008). Bowen v. Massachusetts the APA [§“This exception to judicial review under ARCs] was intended to 704 avoid duplication and is narrowly construed.” Civ. P. 12(b)(6), ure to State a Claim Pursuant to Fed. R. from that, by applying powers and concluded clear under Plaintiffs from also remedy’ that precludes ship is not an ‘adequate procedures, and practices and challenging Defendants’ policies, under the APA.” seeking prospective injunctive relief that a claim brought only in the Claims Court would deny Massa- that a claim brought only in the the Claims Court did not pro- chusetts an adequate remedy”; thus holding established that “[t]he vide an ARC. DOS argued this able to obtain the re- converse is true”: “[W]ere Massachusetts it could not then seek relief in quested relief in the Claims Court, DOS introduced its argument that the plaintiffs’ §DOS introduced its argument that 1503 and consti- tutional claims tiffs were wrong about 35568-nys_69-2 Sheet No. 23 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 23 35568-nys_69-2 35568-nys_69-2 Sheet No. 24 Side A 10/28/2014 12:36:12 175 whereas consti- 180 note 178, at 3. note 178, at 2. supra supra The arguably higher but And, the plaintiffs noted, 181 179 DOS then reviewed the plaintiffs’ requests for requests the plaintiffs’ then reviewed DOS 174 Together, therefore, § Together, therefore, constitutional 1503(a) and 177 at 9. at 5. at 4. Adopting DOS’s argument about what constitutes a § Adopting DOS’s argument about 704 Id. Id. Id. Id. In reply, DOS argued that “by their own words, Plaintiffs argued that “by their own words, In reply, DOS 178 176 Second, the plaintiffs sought a declaration that “[d]efendants’ a declaration the plaintiffs sought Second, remedies to DOS’ new constitutional The plaintiffs responded 180. 5 U.S.C. § 706(2)(A). 181. Plaintiffs’ Sur-Reply in Opposition to Defendants’ Reply to Plaintiffs’ Op- 174. 175. 176. 177. 178. 5 U.S.C. § to Defendants’ 706(2)(B); Plaintiffs’ Sur-Reply in Opposition 179.to Defendants’ Reply to Plaintiffs’ Op- Plaintiffs’ Sur-Reply in Opposition position to Defendants’ Partial Motion to Dismiss for Failure to State a Claim Pur- suant to Fed. R. Civ. P. 12(b)(6) & Motion to Sever, Reply to Plaintiffs’ Opposition to Defendants’ Partial Motion to Dismiss for Failure Reply to Plaintiffs’ Opposition to Defendants’ P. 12(b)(6) & Motion to Sever at 1, Caste- to State a Claim Pursuant to Fed. R. Civ. filed Dec. 9, 2008) (quoting 5 U.S.C. lano v. Rice, 7:08-cv-00057 (S.D. Tex. § 706(2)(B) (2012)). to Dismiss for Failure to State a Claim Pur- position to Defendants’ Partial Motion suant to Fed. R. Civ. P. 12(b)(6) & Motion to Sever, 2013] court.” the district ADEQUACY TOWARD to ad- denying or failing in reviewing, and practice policy, pattern, equal pro- applications violates due process, judicate the passport other applicable Procedure Act, and tection, the Administrative law.” requested. There- the plaintiffs all the relief they remedies can give 395 ARC and §fore, there is an is precluded. The plaintiffs’ 706 review be dismissed. APA claims must itself provides for They noted that the APA argument in a sur-reply. to constitutional agency action that is “contrary judicial review of right.” \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 39 28-OCT-14 9:10 ARC would render § 706(2)(B) “void and superfluous,” a disfa- least. vored statutory interpretation at are subject to differing stan- constitutional claims and APA claims subject to the standards embedded dards of review: APA claims are in §“arbitrary” and “capricious,” 706, including on the plaintiffs trying to inarguably different burdens placed mean that direct relief under the demonstrate constitutional claims relief. First, the plaintiffs wanted individual adjudications of their of adjudications individual wanted the plaintiffs First, relief. passport—such of obtaining a for purposes citizenship adjudica- under § available de novo tions are In fact, DOS argued, 1503(a). enacted §“Congress for such circumstances.” 1503(a) protection and relief is available through equal concede that such due process.” tutional due process claims require a demonstration of a liberty in- tutional due process claims require claims require “sufficient terest and constitutional equal protection evidence of intentional discrimination.” 35568-nys_69-2 Sheet No. 24 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 24 35568-nys_69-2 35568-nys_69-2 Sheet No. 24 Side B 10/28/2014 12:36:12 until it On Au- 186 Thus, as the Bowen www.aclu.org/pdfs/ 184 easily could have Bowen 185 Bowen available at and concluded with the plain- concluded with , it appears that DOS was using itself. According to the plaintiffs, itself. According at 1. Castelano Id. Castelano —to do what Bowen , 487 U.S. at 903). remedies are necessarily excluded from remedies are necessarily Castelano Bowen briefing, DOS did not address 3. Comparing U.S. v. Fausto constitutional Castelano at 4 (quoting Bowen v. Massachussetts, 487 U.S. 879, 901 (1988)). at 4 (quoting Bowen v. Massachussetts, at 5–6. at 5 (quoting . at 3. 183 The plaintiffs further argued that a party’s decision to “in- party’s decision that a argued further plaintiffs The Id. Id Id. Id. ARCs, 187 makes clear that at the time the APA was enacted, “a number at the time the APA was enacted, makes clear that court explained, § court explained, to displace these statu- 704 was not meant 182 In the The NOARC briefing in The NOARC briefing The plaintiffs also argued that the structure and history of the and history that the structure also argued The plaintiffs 182. 183. 184. 185. 186. and Release, Castelano v. Clin- Stipulation and Agreement of Settlement 187. Final Order and J. Approving Class Action Settlement, Castelano v. Clin- 396for re- substitute “adequate an not constitute might Constitution NYUview.” ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:357 reme- constitutional never anticipated that Congress APA suggest qualify as ARCs. in the remedies that could dies to be included on They base this argument Bowen to be fol- acts also provided ‘specific procedures of agency organic a particular agency’s action.’”lowed in reviewing the issue, the the district court could decide tiffs’ sur-reply. Before DOS would stop using the “filed parties reached an agreement: re-adjudicate the passport without further action” determinations, and train its employees as to ad- applications of the proposed class, birth certificates. judications requiring review of midwife \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 40 28-OCT-14 9:10 vok[e] multiple theories to support a request for relief” is not a for relief” to support a request theories vok[e] multiple purposes remedy” for is an “adequate that each theory concession of § 704. was raised by the plaintiffs. This oversight is noteworthy, particularly was raised by the plaintiffs. This oversight to use other law—ain light of DOS’s first attempts partial quote from § 702 and gust 14, 2009, six weeks after the WHTI deadline, the case gust 14, 2009, six weeks after settled. Bowen only to refer to If Congress meant NOARC tory review mechanisms. statutory ton, 7:08-cv-00057 (S.D. Tex. filed Jun. 24, 2009), ton, 7:08-cv-00057 (S.D. Tex. filed Jun. racialjustice/castelanovclinton_agreement.pdf. With the 2009 change in adminis- her tration, Hillary Rodham Clinton was automatically substituted into the case in official capacity as Secretary of State. ton, 7:08-cv-00057 (S.D. Tex. filed Aug. 14, 2009). been construed to do. Though DOS did not substantively explain been construed to do. Though either law’s relevance to the two to argue that, where another statute forbids relief under the the two to argue that, where another possibly falling within the scope of NOARC. possibly falling within 35568-nys_69-2 Sheet No. 24 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 24 35568-nys_69-2 35568-nys_69-2 Sheet No. 25 Side A 10/28/2014 12:36:12 Bowen Bowen note 166, at 8 supra entirely faithfully. Bowen district court to decide that ’s jurisdictional ARC inquiry ’s jurisdictional ARC court held APA review was availa- court held APA Bowen note 163, at 8. Castelano plaintiffs relied directly upon plaintiffs relied Or, as DOS wrote, “[w]here Congress “[w]here wrote, as DOS Or, Bowen quotes could have supported this asser- could have supported quotes ’s special statutory ARC inquiry, for in- statutory ARC ’s special supra U.S. v. Fausto, 484 U.S. 439, 448–49 (1988) (citing 188 Castelano 191 Bowen Bowen see also 189 : “When Congress enacted the APA to provide a : “When Congress enacted the APA Bowen 5 U.S.C. § grant relief 702 (“Nothing herein . . . confers authority to See 190 note 173 at 4. But, for the plaintiffs, this sentence appears to have been a But, for the plaintiffs, this sentence In contrast, the Any number of Any number 190. Defendants’ Reply to Plaintiffs’ Opposition to Defendants’ Partial Mo- 191. Plaintiffs’ Opposition to Defendants’ Partial Motion to Dismiss for Fail- 188. 189. for Failure to State a Claim Pursu- Defendants’ Partial Motion to Dismiss (quoting Bowen v. Massachussetts, 487 U.S. 879, 903 (1988)). tion to Dismiss for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6), supra ure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6), multiple non-APA cases where specific statutes did not expressly forbid judicial multiple non-APA cases where specific review, but implicitly foreclosed it). ant to Fed. R. Civ. P. 12(b)(6), double-edged sword. The sentence falls squarely within the double-edged sword. The sentence which the plaintiffs should be court’s special statutory ARC inquiry, an inspection of the “special statu- wary to rely upon. Too close of tory” language could lead the § “special and adequate” process for allowing 1503(a) is Congress’s 2013] forbidden. relief is APA, ADEQUACY TOWARD 397 Despite this principal reliance, it for their first NOARC arguments. not apply is clear even the plaintiffs could on one sentence they ex- The plaintiffs seemed to rely primarily tracted from \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 41 28-OCT-14 9:10 of agency action in the district general authorization for review grant of jurisdiction to dupli- courts, it did not intend that general statutory procedures relating cate the previously established special to specific agencies.” specifically provides for district court jurisdiction over such a claim, such a over jurisdiction court for district provides specifically Congres- contradicts basis of jurisdiction of any other assertion intent.” sional [sic] if any other statute that grants consent to suit expressly or impliedly forbids the if any other statute that grants consent relief which is sought.”); stance, would have been relevant to DOS’s argument here. Even argument relevant to DOS’s have been stance, would analysis within the language and DOS’s §could have supported as ARC arguments, as DOS 1503(a) opposition. There, in its reply to the plaintiffs’ finally recognized when the DOS argued that could not grant court because the Claims Court ble in the district Court was also “requested relief,” the Supreme Massachusetts’s is in a district the proposed alternative ARC holding that where § court loses jurisdiction under court, the district 704 of any APA claims. tion. The whole of tion. The 35568-nys_69-2 Sheet No. 25 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 25 35568-nys_69-2 35568-nys_69-2 Sheet No. 25 Side B 10/28/2014 12:36:12 ’s ju- Caste- Bowen Castelano Bowen that could quote they ex- quote they Bowen makes clear Con- claims—rather than Bowen Bowen ’s discussion of the history ARCs. ARC inquiries—i.e., the prac- duplicative statutory ARCs that existed in focuses entirely on a court’s ju- Bowen 192 statutory ’s special statutory ARC inquiry, as ’s special statutory as precluding constitutional reme- Bowen special Bowen court most obviously introduced this court most obviously introduced Bowen Bowen Bowen language was meant to codify Congress’s concern language was meant ’s inquiry, framing their alternative ARCs out of the ’s inquiry, framing Bowen Bowen line item supports DOS’s argument that “Congress enacted argument that supports DOS’s line item note 173, at 4. The plaintiffs attempt to dull this special statutory edge by fo- statutory edge dull this special attempt to The plaintiffs On the other hand, On the other hand, But this reading of plaintiffs are safe. None of their three grounds for relief en- None of their three grounds plaintiffs are safe. 192. Defendants’ Reply to Plaintiffs’ Opposition to Defendants’ Partial Mo- tion to Dismiss for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6), supra tracted. If, as the unpublished Western District of Washington case of Washington Western District If, as the unpublished tracted. held, this 398 pass- including determinations, citizenship challenge to individuals NYU of a choice plaintiffs’ the this light, Read in adjudications. port ANNUAL SURVEY OFBowen AMERICAN LAW§ such circumstances.” 1503(a) for [Vol. 69:357 the language of the “duplicate” cusing on \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 42 28-OCT-14 9:10 that the aggrieved not bring entirely that the aggrieved codifying congressional intent that certain kinds of injuries be han- intent that certain kinds codifying congressional regardless of congressionally appointed ways, dled in certain, available remedy is redundant—thenwhether or not the the lano the plaintiffs With this focus on duplication, tirely overlap another. tightened special statutory ARC’s possible applicable scope. special statutory quotation, is more easily read represented by the plaintiffs’ selected that constitutional remedies to support the plaintiffs’ argument could not be ARCs for § 704 purposes. In fact, the plaintiffs use it this way. Their sur-reply introduces of the APA. While the gress was contemplating special history to discuss examples of APA was drafted, the the background against which the argue that plaintiffs used the discussion to tical ARC and the unexhausted administrative ARC—precludetical ARC and the unexhausted administrative such open question whether the a holding either. Thus, it is an court intended for constitutional remedies to be categorically ineli- dies as possible ARCs does not address the parts of dies as possible ARCs does not address remedies to qualify as ARCs. The be read to allow constitutional jurisdictional ARC inquiry in requested. As DOS argues, the risdictional ability to grant the relief grant the kinds of remedies the district court has jurisdiction to constitutional claims. plaintiffs are requesting with their does not foreclose an interpreta- risdictional ARC inquiry certainly could be ARCs precluding APA tion that constitutional remedies review. And none of the other 35568-nys_69-2 Sheet No. 25 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 25 35568-nys_69-2 35568-nys_69-2 Sheet No. 26 Side A 10/28/2014 12:36:12 [] Bowen as relevant to practitioners party acknowl- Garcia 194 , including the U.S. Castelano parties’ NOARC argu- parties’ never addressed. Castelano —both plaintiffs and the Castelano Bowen Castelano , its incompleteness, and its unu- Castelano courts, the majority. . In —selectively, contradictorily, and some- Bowen Garcia Part III.B.3. Bowen in much the same way the D.C. Circuit and in much the same way the D.C. Bowen Garcia supra This is an issue This is : nowhere does it address the relevance of stan- : nowhere does Bowen 193 , DOS argued that the availability of de novo review of de novo that the availability , DOS argued ’s inherent contradictions, omissions, or multifaceted ’s inherent contradictions, omissions, Bowen Castelano Bowen In summary, the practitioners in In summary, the practitioners in Both of these arguments ignore or fail to acknowledge the ignore or fail to acknowledge Both of these arguments Finally, in one key way both in one key way Finally, In The confusion within 194. plaintiffs’ arguments appears to be Though this characterization of the 193.by the court in Standards of review were also raised more about the plaintiffs’ burden of proof than about the court’s standard of re- more about the plaintiffs’ burden of proof view, in this case, these considerations seem to be related. A court must review equal protection and due process claims with particular standards in view; these of standards impose coterminous burdens on the plaintiffs. Thus, for purposes argument here, I have collapsed the plaintiffs’ burden concerns into a discussion of standards of review. its NOARC analysis. See dards of review to a NOARC inquiry. It is not clear if such a failure a NOARC inquiry. It is not clear dards of review to or if it was an facts of the case on review, arises from the peculiar standards of re- by the Court as a signal that intentional omission part of a NOARC inquiry. Thus, in view should not be considered as this contested area, practitioners—and the courts that regulate them—have their standard of review no guidance about whether arguments even have § 704 NOARC legs. truth about 2013] to arguments the plaintiffs’ despite consideration, for ARC gible contrary. the ADEQUACY TOWARD 399 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 43 28-OCT-14 9:10 under § 1503(a) helped to render § purposes 1503(a) adequate for of § argued that, because constitu- 704. Conversely, the plaintiffs burdens on the would impose higher or different tional remedies Equal Protection an APA remedy, neither the plaintiffs than would clauses provided an ARC. nor the Due Process ments departed from ments departed Department of Justice in its capacity as legal counsel to DOS’s legal Department of Justice in its capacity counsel, applied District Courts did in times not at all. Like the DOS argued that standards of review are relevant to a § are relevant to of review that standards DOS argued 704 analysis. NOARC did so apparently unwittingly. Neither did so apparently unwittingly. adjudication of one disagreement sual elasticity do allow for easy DOS briefed the argument as raised by DOS in its NOARC briefing. Court decision in follows: “Plaintiffs rely on the Supreme edged ARC inquiry. And neither party appeared to feel limited by the con- ARC inquiry. And neither party appeared tours or specifics of the 35568-nys_69-2 Sheet No. 26 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 26 35568-nys_69-2 35568-nys_69-2 Sheet No. 26 Side B 10/28/2014 12:36:12 have not Bowen , however, actually sup- actually , however, , which is the only Supreme , which is the only Bowen It turns out both parties are out both parties It turns Bowen 195 IV. can support almost anything at all. almost anything can support JURISPRUDENCE A. Statutory Parsing 0. Check Your Action Bowen TOWARD ADEQUACY IN OUR NOARC ADEQUACY TOWARD note 173, at 4. At this point, it should be clear that the current NOARC juris- be clear that the current At this point, it should Against the backdrop of Parts I, II, and III, the purpose of Part of Parts I, II, and III, the purpose Against the backdrop An analysis of NOARC should begin with the relevant statutory An analysis of NOARC should begin language gives some guidance A close reading of this statutory 195. Defendants’ Reply to Plaintiffs’ Opposition to Defendants’ Partial Mo- tion to Dismiss for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6), supra prudence is problematic at best. As discussed above, the problem is at best. As discussed above, prudence is problematic approach to the Supreme Court’s inconsistent exemplified by opinion in NOARC in its majority 400do not . . they APA . the that without their argument for as support NYU available. remedy an adequate have ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:357 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 44 28-OCT-14 9:10 Court case dealing with §Court case dealing language. Lower courts 704’s NOARC difficulties of a have similarly struggled with the and practitioners analysis; their attempts to apply consistent NOARC helped. recommendations toward a faith- IV of this Article is to make brief These recommendations are pre- ful, consistent NOARC analysis. and thorough set of liminary. A more comprehensive be undertaken more fully else- recommendations can and should NOARC jurisprudence at the Su- where. But without a coherent preme Court level—or, anywhere else—any apparently, attempt at clarity is a move in a positive direction. text, 5 U.S.C § which states “[a]gency action made reviewable 704, for which there is no other ade- by statute and final agency action to judicial review.” quate remedy in a court are subject guidance is presented below in about what a court should do. This step), a sort of NOARC primer for four steps (with one preliminary analysis anew. As per the dic- courts wanting to undertake a faithful tates of § NOARC analysis must be confined to partic- 704, a court’s the analytical method detailed ular kinds of agency action. Thus, below begins with step zero. right—thespecter of ports the Defendants’ position.” ports the 35568-nys_69-2 Sheet No. 26 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 26 35568-nys_69-2 35568-nys_69-2 Sheet No. 27 Side A 10/28/2014 12:36:12 . , 130 S. Ct. in a court cert. denied , for instance, the Garcia 197 . The APA does not explicitly define 1. Clear the Court remedy 2. Review the Remedy It is the reviewability of the latter category of action that is of action that latter category reviewability of the It is the 196 Read broadly, the NOARC-containing sentence from § from sentence the NOARC-containing broadly, Read in- 704 Section 704’s express language also requires that the proposed Section 704’s express language also In short, before a court undertakes a NOARC analysis, it must a court undertakes a NOARC analysis, In short, before that the alter- remedy in a court” requires “No other adequate Section 704 likewise does not make explicit a requirement that Section 704 likewise does not make 196. Though the language of § the “judicial re- 704 does not expressly limit 197. Garcia v. Vilsack, 563 F.3d 519 (D.C. Cir. 2009), 1138 (2010). view” offered for “final agency action for which there is no other adequate remedy view” offered for “final agency action for under the APA, it seems safe to presume in a court” to the kind of review available The alternative interpretation—thatthat Congress intended such limitation. only is NOARC can get any kind of judicial those final agency actions for which there review under any claim—does by any court. not appear to have been adopted by Thus, with some cautiousness, we presume that the judicial review extended §review under the standards of § 704 is judicial 706. alternative ARC be a 2013] re- an action make expressly does not statute where a that dicates agency for those “final is available only judicial review viewable, in a adequate remedy is no other for which there action[s] court.” ADEQUACY TOWARD 401 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 45 28-OCT-14 9:10 restricted by the NOARC requirement; therefore, our NOARC anal- our NOARC requirement; therefore, by the NOARC restricted by not made reviewable agency actions apply only to final ysis will statute. reviewable by the action in question is not “made determine that are guided by “final agency action.” These analyses statute” but is a is step zero. set forth elsewhere. This case law and precedent proposed be a remedy available native remedy being D.C. Circuit held that the § 741(b) option of pursuing administra- §tive remedies could qualify as a 704 ARC because such a remedy by the agency, ulti- would, upon an unfavorable determination in a court. mately allow for judicial review Thus, the reviewing court must determine that the alternative pro- court must determine that the Thus, the reviewing granted by a court. Section 704 posed ARC is one that could be must be a federal court or that it does not specify that the court would be reasonable for a court to must be an Article III court, so it court remedies could offer hold that state court or administrative §adequate review for purposes of 704. court. In the proposed remedy start in a 35568-nys_69-2 Sheet No. 27 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 27 35568-nys_69-2 35568-nys_69-2 Sheet No. 27 Side B 10/28/2014 12:36:12 d th 2 8 S S ’ ’ quoted LACK LACK B B 1 (3d ed. 2002), EMEDIES R Administrative Procedure Act of See (2d ed. 1910) [hereinafter (8th ed. 2004) [hereinafter MERICAN A 1014 1320 198 ODERN note 200. , M It is possible that this pre-APA definition of It is possible that ICTIONARY supra ICTIONARY for a litigant. If we are to be guided by these modern (and If we are to be guided by these D 199 D As another treatise explains, “A remedy is any- As another treatise do AYCOCK 201 AW AW L 200 L L S S ’ ’ OUGLAS 8th ed. 1320, LACK LACK B B D S ’ Black’s Law Dictionary (2d ed. 1910) defines “remedy” as “the “remedy” as ed. 1910) defines Dictionary (2d Black’s Law ). 201. 200. 198. word “relief”: in § Interestingly, chapter 10 does use the 701 to indicate The § with the 1976 amend- 702 additions of the word “relief” were added 199. LACK B ed.]. ed.]. in that “‘relief’ . . . ha[s] the meaning[ ] given [it] by section 551” of the APA; five times in § 702; and once in the heading of § But, as 705 (“Relief pending review”). per §the whole or part of an 551, “relief” in the APA is defined as “includ[ing] agency—(A) money, assistance, license, authority, exemption, exception, grant of a claim, right, immunity, privilege, exemp- privilege, or remedy; (B) recognition of action on the application or petition of, tion, or exception; or (C) taking of other indicates that, for purposes of the and beneficial to, a person.” This definition action that extends a benefit to a person. APA, the word “relief” refers to agency on beneficial or positive agency action, Thus, in the APA, the word relief focuses ex post the remedying of detrimental or rather than on a person’s attempt to claim negative agency action. Pub. L. No. 94-574, §ments to the APA. Act of Oct. 21, 1976, 702, 90 Stat. 2721 (1976). But the definition of relief in § in the original 1946 ver- 551 was codified sion, so it predates the 1976 amendments. 1946, Pub. L. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§1946, Pub. L. 79-404, 60 Stat. 237 (1946) 501 et seq. 402 than other “remedy” the word 10 use chapter does Nor “remedy.” NYUin § ANNUAL 704’s NOARC phrase. SURVEY OF AMERICAN LAW or is prevented, redressed, of a right which the violation means by [Vol. 69:357 of rem- are four kinds explains there The dictionary compensated.” recaption, abatement, party injured” (e.g., “By act of the edies: (1) and in the case of retainer of law, as (2) “[B]y operation seizure); e. g., by accord agreement between the parties, remitter,”; (3) “[B]y judicial remedy, e. and arbitration”; and (4) “[B]y and satisfaction g., action or suit.” \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 46 28-OCT-14 9:10 thing a court can do for a litigant who has been wronged or is about thing a court can do for a litigant to be wronged.” we can infer that a remedy is possibly anachronistic) definitions, what a court can “remedy” accords with Congress’s understanding of “remedy” when with Congress’s understanding “remedy” accords language in §it drafted the NOARC 704; however, it is unclear what what it should be to a court’s understanding of this definition adds A more modern it undertakes a NOARC analysis. evaluating when (8th ed. some direction. Black’s Law Dictionary definition adds a right or as “[t]he means of enforcing 2004) defines “remedy” relief” or “re- a wrong; legal or equitable preventing or redressing medial action.” 35568-nys_69-2 Sheet No. 27 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 27 35568-nys_69-2 35568-nys_69-2 Sheet No. 28 Side A 10/28/2014 12:36:12 rem- there is no . . . there is action for which action for 3. Determine Adequacy in Conjunction with Other Perhaps the most difficult and perplexing word in NOARC is Perhaps the most difficult and perplexing though they are helped These questions are difficult to answer, evaluating for adequacy (i.e., Now that we know what a court is Section 704 requires that, to preclude APA review, an alterna- By the express language of § of language express By the alternative only viable the 704, step: not for the next were it might seem obvious, This point But a might be a mere semantic difference. At this point, this . . . .” Thus, a proposed alternative remedy will only be an ARC will only be alternative remedy a proposed . . . .” Thus, the adjective “adequate.” The meaning of this word is facially un- the adjective “adequate.” The meaning a relative analysis, if not a sub- clear. “Adequate” appears to require raises thorny questions. jective determination, and immediately much is adequate? How little is Adequate in regards to what? How not adequate? analysis of step two. As discussed by the discrete remedy-action remedy we are looking for above, recognizing that the alternative it becomes clear that we must eval- must be a remedy for an action, of its ability to adequately rem- uate the remedy’s adequacy in terms court’s focus should be on the edy an agency action. Thus a on the aggrieved’s claims agency’s action itself, not, for instance, assessment of the aggrieved’s in- for relief or even the court’s own action that must be scrutinized. jury. It is a remedy for an agency we must ask how a court should a remedy for an agency action), return to the text gives additional determine what is adequate. A help. tive remedy be “[an]other adequate remedy in a court.” This im- plies that the APA itself presents one “adequate remedy,” which will a be supplanted by there being any other adequate remedy in court. Thus, determining what kind of remedy the APA affords will 2013] by as dictated action, agency an will remedy that are those ARCs “[F]inal agency this language: edy of §for purposes to an to do something allows a court 704 if it agency action. ADEQUACY TOWARD of the remedy- What a clear understanding Determining adequacy. about what needs provides is additional clarity action relationship ARC needs to Namely, the proposed alternative to be adequate. remedy for the agency action—notprovide an adequate an ade- court’s adequacy the aggrieved’s injury. Thus, the quate remedy for not remedies on remedies for agency actions, inquiry must focus 403 by agency action. for injuries caused outcomes. inquiry’s focus can dictate different difference in an about the proper focus is advisable. Thus, being clear \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 47 28-OCT-14 9:10 35568-nys_69-2 Sheet No. 28 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 28 35568-nys_69-2 35568-nys_69-2 Sheet No. 28 Side B 10/28/2014 12:36:12 other 202 Thus, judicial review under the APA allows a court to either Thus, judicial review under the alternative ARC must, A court may conclude that any proposed the language of §In other words, it appears that under 704, in While it seems necessary that we consider how all the sections that we consider seems necessary While it action, the that, upon review of agency Section 706 mandates 202. 5 U.S.C. § an action might 706. The six negative categories into which (1) “[C]ompel agency action,” if the court determines that ac- action,” if the court determines (1) “[C]ompel agency and withheld or unreasonably delayed”; tion was “unlawfully findings, and and set aside agency action, (2) “[H]old unlawful are action or those findings or conclusions conclusions,” if that of six negative things. found to be one fall, thus allowing a court to hold it unlawful and set it aside, are: (1) “[A]rbitrary, fall, thus allowing a court to hold it unlawful not in accordance with law”; (2) capricious, an abuse of discretion, or otherwise privilege, or immunity”; (3) “[I]n ex- “[C]ontrary to constitutional right, power, or limitations, or short of statutory right”; cess of statutory jurisdiction, authority, required by law”; (5) “[U]nsupported by (4) “[W]ithout observance of procedure an administrative law judge “or otherwise substantial evidence in a case” heard by (6) reviewed on the record of an agency hearing provided by statute”; and “[U]nwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.” 5 U.S.C. § 706. Section 706 is sometimes referred to as providing “arbitrary and capricious” review or, perhaps more accurately, “APA review.” compel agencies to act or set aside agency action, findings, or con- compel agencies to act or set aside unlawful, for any of a variety of clusions the court has held were defects. adequate remedy. That is, the pro- at a minimum, allow an equally remedy that either allows a court posed alternative must provide a action, or a remedy that allows a to compel or set aside agency would be adequate. It is unclear court to do something else that would or could be. Perhaps that what that something else adequate on a case-by-case basis. is something a court must determine claims on the basis that another order to dismiss a plaintiff’s APA that the proposed alternative ARC ARC exists, a court must ensure action to be compelled or set would allow the aggrieving agency 404 they which against adequacy, level of some to establish courts allow NYUmeasure—andcan determine—the ANNUAL alter- a proposed of “adequacy” SURVEY OFnative remedy. AMERICAN LAW [Vol. 69:357 by review remedy provided to the judicial 10 contribute of chapter to do directing the court of chapter 10 the only section the APA, is § to agency action something to it seems reasonable 706. Thus, conclude that § thrust of the APA’s remedy, 706 describes the § of the APA itself (by virtue of which, by the terms 704’s “no in a court”), should be adequate. adequate remedy of two things: court shall do one \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 48 28-OCT-14 9:10 35568-nys_69-2 Sheet No. 28 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 28 35568-nys_69-2 35568-nys_69-2 Sheet No. 29 Side A 10/28/2014 12:36:12 other”—raises ques- no 4. Say No note 199, at 34. supra 203 d ed., 2 S ’ LACK B The only remaining word in the NOARC phrase is “no.” Thus, The only remaining word in the Though this definition refers explicitly to the outdated separa- refers explicitly to the outdated Though this definition provided in §If a court were to trade “as the remedy 706” for This analysis still leaves unanswered what adequacy looks like adequacy looks unanswered what still leaves This analysis 203. it appears that Congress intended courts to make an exhaustive de- it appears that Congress intended determination, regarding other termination, or at least a negative possible ARCs. This absolute statement—“ tion between law and equity (discussed in more detail in Part III.B and equity (discussed in more tion between law of the APA abolished before the 1946 enactment below), which was of “adequate by the APA, this early definition and was not preserved be using to assess identifies qualities a court could remedy” at least an ARC. that court would be able “as the remedy in equity” in this definition, ARC by asking this question: “Is to analyze a proposed alternative remedy [that] is plain and com- this proposed alternative ARC ‘a to the ends of justice and its plete and as practical and efficient provided in §prompt administration as the remedy 706?’” is a This reasonable minds are likely to sprawling, subjective test about which and in the field of NOARC, such differ. But it is nevertheless a test, a specific analysis might be a beginning. 2013]aside—perhaps to) adequate (or equally to similar for reasons in § detailed those reviewing court alternative, the In the 706(2). allows the alternative ARC the proposed a finding that must make or that is comparable, the agency action do something to court to adequate. comparably more specifically, ADEQUACY TOWARD (or be include the ability that it must other than in this context, or set aside agency ability) for a court to compel comparable to the ed. 1910) merely to Black’s Law Dictionary (2d action. A return is defined as to the mix. “Adequate remedy” adds more adjectives practical and effi- is plain and complete and as “[a] remedy which as the of justice and its prompt administration cient to the ends remedy in equity.” 405 prove NOARC exists, rendering tions about whose burden it is to does not allocate the burden. It APA review available. Section 704 for which the plaintiff demon- does not say “final agency action remedy in a court,” nor does it strates there is no other adequate say “final agency action is subject to judicial review, unless the de- a fendant demonstrates there is another adequate remedy in court.” \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 49 28-OCT-14 9:10 35568-nys_69-2 Sheet No. 29 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 29 35568-nys_69-2 35568-nys_69-2 Sheet No. 29 Side B 10/28/2014 12:36:12 —that “adequate Bowen other ARCs exist; they might rely instead other ARCs exist; no 1. “Adequate Remedies” Before the APA B. in 1946 Historical Context: “Adequate Remedy” Admittedly, the five steps recommended above arise out of a Admittedly, the five steps recommended The phrase “adequate remedy” pre-dated the APA, appearing For these reasons, “no” might not add much to a court’s “no” might not add much For these reasons, Rather, “no other” seems to imply that the bar is essentially bar is that the imply seems to other” “no Rather, more NOARC seems and review parties to raise Requiring very close reading of § 704 and the judicial review provisions of the reading does not accommodate a APA more broadly. Such a close dissent in point made in Justice Scalia’s in statutes, common law cases, and the 1938 Federal Rules of Civil upon the parties to bring possible alternative ARCs and NOARC to bring possible alternative ARCs upon the parties may currently be attention. In fact, this is what issues to the court’s happening. reasonably require that a court NOARC analysis. Although it might applicable: (1) a court should take at least the following steps, when it notices, though the problem not overlook a NOARC problem by the parties. This seems con- may not have been raised or briefed inference that courts have are sonant with the reasonable textual of the parties’ actions; and required to ensure NOARC, regardless thorough a NOARC analysis as it (2) a court should undertake as consider multiple possible ARCs properly can and, when necessary, ARC could be §or multiple ways in which a proposed 704 ade- toward a more meaningful applica- quate. These two steps could go tion of the “no” component of § 704’s NOARC requirement. with a robust history of common remedy” is actually a term of art, argument bears some weight, law to define its meaning. This the APA that Justice Scalia would though it cannot do the work in want it to do. 406 NYU rise could give This review. no APA NOARC, without jurisdictional; ANNUAL SURVEY OF is the responsibility NOARC that demonstrating to a presumption AMERICAN LAW regardless sua sponte, raise the issue the court should of the court; [Vol. 69:357 of the parties. of the briefing an exhaus- sponte make courts to sua than does requiring workable ARC. Where about the existence of any other tive determination and the common incentivized to search the code parties might be their APA claims alternative ARCs, so as to ensure law for potential is not so well or to mandate dismissal, the court could be heard judges and Overworked or unmotivated equipped or incentivized. to en- overlook their jurisdictional responsibility court staff might that sure sua sponte \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 50 28-OCT-14 9:10 35568-nys_69-2 Sheet No. 29 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 29 35568-nys_69-2 35568-nys_69-2 Sheet No. 30 Side A 10/28/2014 12:36:12 207 the equity/ Read in his- note 199, at 34. 208 209 supra And sometimes the That is, a court sitting That is, 210 2d ed., 204 S ’ LACK B . 985, 995 (1992). EV see also Thus, from early in U.S. legal history, early in U.S. Thus, from Jury Computation of Front Pay Under the Age Discrim- Jury Computation of Front Pay Under the Age . L. R 205 INN M . 57 (1938). . 57 (1938); 206 , 76 . P . P IV IV , Lawrence Print Works, Inc. v. Lynch, 146 F.2d 996 (1st Cir. , Lawrence Print Works, Inc. v. Lynch, , Yakus v. United States, 321 U.S. 414, 442 n.8 (1944); Atlas Life , Yakus v. United States, 321 U.S. 414, 442 , Brian S. Felton, . R. C . R. C ED ED See, e.g. See, e.g. F F Id. See, e.g. That distinction may have given context to “adequate remedy” may have given context to “adequate That distinction “Adequate remedy” continued to appear in federal cases after “Adequate remedy” continued to 208. 209. 210. 204. Judiciary Act of 1789, ch. 20, § 16, 1 Stat. 82 (1789). 205. 206. 207. ination Employment Act 1945) (holding that where “plaintiffs have a plain, adequate and complete remedy 1945) (holding that where “plaintiffs have declaratory judgment is not needed); at law or in equity in the state court,” federal Griffith v. Bank of New York, 147 F.2d 899, 904 (2d Cir. 1945) (holding that set- though some cases have held the plaintiffs bound to state procedures for the an ting aside of certain judgments “probably because the state practice provides adequate remedy at law, no such restriction has governed the fraud cases”); Guard- ian Life Ins. Co. of Am. v. Kortz, 151 F.2d 582, 586 (10th Cir. 1945) (holding that Ins. Co. v. W.I. Southern, Inc., 306 U.S. 563, 569 (1939); Matthews v. Rodgers, 284 Ins. Co. v. W.I. Southern, Inc., 306 U.S. U.S. 521, 525 (1932). as it appeared in the 1938 Federal Rules of Civil Procedure. in the 1938 Federal Rules of Civil as it appeared ended the division the 1938 Rules effectively Though some argue the inclusion of of law and courts of equity, with between courts parties to plead in the alternative, Rule 8(a) allowing 2013] 1789, Act of in the Judiciary appeared The phrase Procedure. adequate where plain, case “in any in equity relief denied which be had at law.” remedy may and complete ADEQUACY TOWARD 407 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 51 28-OCT-14 9:10 and as discussed above, the “adequate remedy” phrase was associ- phrase the “adequate remedy” above, and as discussed courts of equity with the difference between ated to some extent and courts of law. torical context, this rule could have been an articulation that even torical context, this rule could have a court may issue a declaratory if money damages are available, judgment. federal courts denied particu- 1938 and before 1946. In these cases, other “adequate remedy” was lar federal remedies because some pattern governed the courts’ use available. No apparent, consistent during these years. Sometimes a of the “adequate remedy” phrase remedies because state remedies, court precluded federal equitable adequate. either equitable or legal, were in equity could not grant equitable remedies (i.e., injunctions, de- (i.e., injunctions, equitable remedies could not grant in equity “plain, damages) were (i.e., monetary legal remedies crees) where and complete.” adequate law distinction might have informed the inclusion of “adequate might have informed the inclusion law distinction 57 provides that 57, Declaratory Judgments. Rule remedy” in Rule not preclude a of another adequate remedy does “[t]he existence that is otherwise appropriate.” declaratory judgment 35568-nys_69-2 Sheet No. 30 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 30 35568-nys_69-2 35568-nys_69-2 Sheet No. 30 Side B 10/28/2014 12:36:12 with DMINIS- A 213 The quo- ON . 214 EP , R Here, it is unclear if Here, it is unclear ONGRESS 212 C TH , 79 UDICIARY J ON THE at 213 (1946). . OMM . 79-752, 2. Intent for NOARC Congressional 37 (Comm. Print 1945). O S. C (emphasis added). The use of “any” here does not appear to , Georgia v. Pennsylvania R. Co., 324 U.S. 439, 476 (1945) , Georgia v. Pennsylvania R. Co., 324 . N Id. Thus, before the passage of the APA, courts used “ade- of the APA, courts the passage Thus, before EP 211 TAFF OF S S. R See, e.g. ROCEDURE TRATIVE P court.” Drawing upon this body of law as a whole, it is unclear what body of law as a whole, it is Drawing upon this Likewise, the Senate Committee Report, printed in November Likewise, the Senate Committee 213. The version of the APA being considered by the Senate Committee in 214. 211. 212. any this print articulates the NOARC requirement as being “no other adequate remedy in affect the Committee’s explanation or the meaning of the NOARC language. the Declaratory Judgment Act required the court to determine “whether there is the Declaratory Judgment Act required afforded [in a pending state court ac- such a plain, adequate, and speedy remedy no useful purpose”). tion] that a declaratory judgment will serve or exhausted the administrative remedies (“[T]he State has not availed itself of which may afford an adequate remedy provided by the Interstate Commerce Act, institution of the present suit in equity.”). and which must in any case precede the 408 remedies, administrative unexhausted with was concerned court NYU of equitable issuance court’s the precluded have also could which ANNUAL SURVEY OFremedies. AMERICAN LAW [Vol. 69:357 a NOARC require- to codify when it incorporated Congress meant ment into § was not clear about what it 704. Importantly, Congress June 1945, ex- Senate Judiciary Committee Print, meant either. The plains that § was “designed [ 704 (then Subsection (c)) ] to nega- preliminary or to make reviewable merely tive any intention adequate rem- where there is a subsequent and procedural orders as is presently the rule.” edy at law available, \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 52 28-OCT-14 9:10 quate remedy” to refer to legal remedies, equitable remedies, equitable to legal remedies, to refer quate remedy” state court remedies. remedies, and administrative unexhausted tation marks around “final,” and the use of the NOARC phrase as tation marks around “final,” and of “final,” seems to imply that, at part of the Committee’s definition anticipated the NOARC this point, the Senate Judiciary Committee the finality requirement, perhaps requirement would be part of even without independent meaning. the Committee is using the word “law” as a reference to the now- is using the word “law” as a reference the Committee ARC of law, perhaps thereby equating nonexistent courts money damages. Or, possibly, the Committee really is focused on money damages. Or, possibly, the imposed by the “final agency ac- clarifying the finality requirement explanation seems directed to- tion” language, as the thrust of this ward ensuring finality. with a mere one-sentence 1945, explains the NOARC requirement restatement: “‘Final’ action includes any effective agency action for remedy in any court.” which there is no other adequate 35568-nys_69-2 Sheet No. 30 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 30 35568-nys_69-2 35568-nys_69-2 Sheet No. 31 Side A 10/28/2014 12:36:12 5,654 . EC Nor does . R 218 ONG C And its expla- 217 The version of § The version of 704 216 note 38, at 101 (quoting 92 note 200, defines “judicial remedy” as “a remedy note 200, defines “judicial remedy” as supra , supra LARK . 79-1980 (1946). 215 . C O th ed., EN 8 . N S ’ G EP Y ’ . at 276. TT LACK B H. R A Id On May 3, 1946, the Committee on the Judiciary of the House the Committee on the Judiciary On May 3, 1946, This possible shift in understanding—from shift in possible This Committee’s the Despite the House Judiciary Committee’s anemic explanation Despite the House Judiciary Committee’s Clark tried to assure eve- Though then-Attorney General Tom 216. 215. 217. 218. (statement of Rep. Walter)). granted by a court.” of Representatives issued its APA report. of Representatives 2013]under- they that the possibility raised which 1945 explanation, June NOARC requirement’s damages,” to the to be “money stood ARC into §collapse requirement—is 704’s finality the buttressed by language of §changed NOARC requirement By this time, the 704. judicial other adequate “no the NOAJR requirement: was really ADEQUACY TOWARD change in for the offered no explanation The Committee remedy.” But what appears operative consequences, if any. language or its Thus, unless is the ambiguous “at law” language. clearly to be gone to be synonymous understood “judicial remedies” the Committee that, by No- this alteration seems to indicate with “legal remedies,” no longer least, the Senate Judiciary Committee vember 1945 at §considered the requirement in terms of 704 adequate remedy money damages. 409 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 53 28-OCT-14 9:10 nation of the sentence likewise parallels the Senate Committee nation of the sentence likewise long explanation of the last sen- Report’s explanation, as does its tence of § relates solely to the finality requirement im- 704, which posed in § 704. in §for the “adequate remedy” phrase 704, the relevant text under- went one final, pre-enactment change—back to the language first Committee in its June 1945 considered by the Senate Judiciary in June 1946, the §print. When the APA was codified 704 language other adequate remedy in any was once again NOARC: “[N]o history is silent. court.” About this, too, the legislative ryone that § much of the APA, would “involve no depar- 704, like rules of procedure in this ture from the usual and well understood the applicable “usual and well field,” it is not entirely clear what dictate about NOARC. understood rules of procedure” that the NOARC require- Attorney General Clark’s encouragement then being considered by the House Judiciary Committee was the by the House Judiciary Committee then being considered it issued its report in Novem- same as that before the Senate when judicial remedy.” ber 1945: “[N]o other adequate 35568-nys_69-2 Sheet No. 31 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 31 35568-nys_69-2 35568-nys_69-2 Sheet No. 31 Side B 10/28/2014 12:36:12 ); 220 . Though in Tucker Act, 28 ARC Inquiries Compare Bowen (in fact, the Claims Court ; ; Bowen v. Massachusetts court remedy , note 38. (i.e., Congress did not consider the (i.e., Congress 219 supra , (i.e., the Claims Court does not have juris- (i.e., the Claims Social Security Amendments of 1965, Pub. L. No. 89-97, of the ARC in light of courts’ power under of the ARC in light of courts’ LARK (i.e., the Supreme Court’s concerns about the (i.e., the Supreme Court’s concerns with court gave no indication it realized it was doing court gave no indication it realized . C EN G Bowen Y adequacy ’ TT A the Court purports to undertake a NOARC analysis, in fact, to undertake a NOARC analysis, the Court purports C. with the the Four Steps Squaring Jurisdictional ARC ARC Special statutory Practical ARC Unexhausted administrative ARC Thus, a preliminary review of NOARC’s related legal and legis- related legal and of NOARC’s preliminary review Thus, a Part II.A of this Article reviews the Supreme Court’s treatment Article reviews the Supreme Court’s Part II.A of this This division of analysis and labeling is original to this Article. This division of analysis and labeling a very close reading of In contrast, Part III.A undertakes 220. In fact, Congress could not have anticipated that plaintiffs would bring 219. • might the equitable relief the plaintiffs diction to provide need); • has nothing to do with exhaustion of administrative remedies); has nothing to do with exhaustion and • lack of expertise was a mark Claims Court’s narrow focus and under §against the Claims Court’s adequacy 704). (1) The alternative ARC’s • (2) The proposed ARC’s (3) The and set it aside; and the APA to compel agency action particular kind of claim the plaintiff alleged when it drafted of claim the plaintiff alleged when particular kind statute the Claims Court’s authorizing the Tucker Act, Medicaid challenges to the Claims Court when it enacted the Tucker Act. The Tucker Act predated Medicaid by seventy-eight years. U.S.C. § 1491 (1887), 79 Stat. 286 (1965). 410 law” and case other statutory light of in the “be interpreted ment NYUmuch illumination. add ANNUAL SURVEY OF AMERICAN LAW easy answers. NOARC itself resists: resists what lative history [Vol. 69:357 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 54 28-OCT-14 9:10 Bowen undertakes at least four: the majority alone of the NOARC requirement in §of the NOARC requirement of the APA, as represented in 704 case on point, the Court’s only In fact, the the statute. anything but straightforwardly applying § in order to develop a process by 704’s NOARC requirement, in a given case, an ARC exists. which a court could analyze whether §The four-step process derived from 704 and outlined in Part III.A components of a potential alter- encourages a court to analyze four native ARC: 35568-nys_69-2 Sheet No. 31 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 31 35568-nys_69-2 35568-nys_69-2 Sheet No. 32 Side A 10/28/2014 12:36:12 held . Garcia court raised—but neither undertook a undertook neither court’s consideration of Bowen Bowen Bowen additional alternative ARCs alternative additional , such an analysis was not necessary. It , such an analysis was not necessary. Bowen , where the proposed alternative ARC was an , where the proposed alternative ’s analysis falls within this step of the § 704 and NOARC Step One: Clear the Court and NOARC Step and NOARC Step Two: Review the Remedy and NOARC Step Two: Review the Garcia court did not undertake a clear effort to determine court did not undertake Bowen Bowen Bowen 1. Bowen 2. Though the Supreme Court in Court Supreme the Though Much of The It is worth noting, however, that the It is worth noting, Under the facts of (4) of existence possible The close reading of §close reading the four-step analysis explicitly utilized 704, nor map does loosely Court’s meandering in Part III.A, the derived a close § by framework recommended onto the 704 NOARC analysis. 2013] ADEQUACY TOWARD 411 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 55 28-OCT-14 9:10 specifically in alternative ARC was a remedy whether the proposed was an ARC in alternative ARC it was considering a court. But the clearly in a court, so the ARC under analysis was the Claims Court, the case presented be at all. Thus, by the nature of if it was going to Court did not ex- it may not be surprising the before the Court, of the pro- determining the courtly qualifications pend effort on ARC. posed alternative NOARC framework. To review a remedy, a court must determine ac- whether the alternative ARC allows the correction of an agency tion. This maps pretty closely to the did not meaningfully consider—the possibility of an unexhausted that Professor Davis, administrative ARC. In fact, it acknowledged explained §the respected APA scholar, had 704’s NOARC lan- princi- guage as codifying the exhaust-administrative-remedies-first discussion of the special statutory ple, but then quickly turned to a was an analysis of whether ARC. What the Court skipped could be an ARC if they are unexhausted administrative remedies to those available in a court. not remedies available in or leading was, however, in administrative remedies option. The D.C. Circuit in administrative remedies option. remedies, once exhausted, could that because those administrative the statute enabling those admin- lead the plaintiffs back into court, this the court meant that at the istrative remedies was an ARC. By the aggrieved would still get judi- end of the administrative process, remedy in a court. Therefore, cial review, which would be a review ultimately available unexhausted remedies with judicial the §could be an ARC, even under 704 NOARC framework de- scribed above. 35568-nys_69-2 Sheet No. 32 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 32 35568-nys_69-2 35568-nys_69-2 Sheet No. 32 Side B 10/28/2014 12:36:12 opinion that the Bowen , the Court had no opportu- Bowen and NOARC Step Three: of the proposed remedy that was largely of the proposed remedy that was majority opinion. This is to be expected majority opinion. This is to be , the Court rejected that idea on the facts of idea on the facts rejected that , the Court Bowen Bowen adequacy 3. Bowen court’s special statutory ARC analysis could have en- court’s special statutory ARC analysis Determine Adequacy in Conjunction with Other Determine Adequacy in Conjunction Bowen The adequacy component of a faithful NOARC analysis impli- The adequacy component of a faithful The special statutory ARC inquiry could be said to be part of be said to be part inquiry could statutory ARC The special the Court ARC inquiry might require Thus, a special statutory cates much of the 412 the under thereof), (or lack powers equitable Claims Court’s the NYU ARC inquiry. jurisdictional Court’s ANNUAL SURVEY OF AMERICAN LAW raised as well. The Court this step, efforts to complete the Court’s [Vol. 69:357 consider in an effort to statutory ARC of a special the possibility that class of problems for a particular intended what Congress In would arise. the case—Congress and adequate” had not provided for “special review procedures—butthat in future a it left open the possibility §ARC could be found, thereby precluding special statutory 706 re- ARC would be in which an alternative view. In those instances, grounds, Congress on special statutory ARC found to be adequate or would allow the kinds of actions it wanted would have stipulated to remedy the agency’s bad acts. the Court to take would in fact allow a particular alternative law to consider whether law, spe- the challenged action. If the alternative the remedying of specially passed, does not allow cifically provided by Congress and to be corrected, it is unlikely the for the injurious agency action raised falls within the category of Court would find that the injury to specially provide. In this injuries for which Congress intended way, the \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 56 28-OCT-14 9:10 since (1) it is the sured that the proposed alternative ARC would be a remedy to the sured that the proposed alternative agency action. But on the facts of ARC analysis was stopped at the nity to do so. Its special statutory special part of the analysis—the found that the Tucker Act Court intent to specially address the was not the result of congressional bringing, regardless of whether the kind of claim Massachusetts was challenged agency action to be Tucker Act would have allowed the remedied. Court did not undertake its NOARC inquiry with a clear analytical framework or in accordance with any clear operating principles. in question, probably due to the facially ambiguous nature of the in question, probably due to the word “adequate,” and (2) the Court probably did not realize it was doing—or should have been doing—anything other than adjudicat- ing adequacy, since it is clear from the 35568-nys_69-2 Sheet No. 32 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 32 35568-nys_69-2 35568-nys_69-2 Sheet No. 33 Side A 10/28/2014 12:36:12 effi- Part IV.A.3). of the pro- of the , could affect component of supra , in which a practi- Garcia For instance, the For instance, 221 completeness Garcia court’s review of the nar- Bowen note 199, at 34 (discussed of the proposed ARC, or the proposed or the ARC, proposed of the supra of the proposed alternative ARC’s remedy. If of the proposed adequacy 2d ed., S ’ plainness LACK B See address the the address Thus, in some ways, all four of the Court’s ARC inquiries in ARC inquiries Court’s of the all four ways, in some Thus, Similarly, the special statutory ARC inquiry in some ways ad- statutory ARC inquiry in Similarly, the special The unexhausted administrative ARC inquiry explored the administrative ARC inquiry explored The unexhausted And the practical ARC inquiry—the Court’s consideration of reveal information about Third, practical considerations could 221. 2013]Bowen delivering the APA in to stand in for ARC’s ability alternative “as practi- and that is “plain and complete” that is agency correction its prompt administra- ends of justice and efficient to the cal and in §the remedy provided tion as ADEQUACY TOWARD 706.” 413 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 57 28-OCT-14 9:10 posed alternative ARC’s remedy. For this reason, the Court ARC’s remedy. For this reason, posed alternative ability to deliver in terms of the Claims Court’s couched its holding “limited.” relief that was only dressed the jurisdictional ARC inquiry addressed the addressed the ARC inquiry jurisdictional Congress had presented a clear intent for the kind of injury alleged a clear intent for the kind Congress had presented way, it might a specific, specially created, statutory to be handled in alternative. a remedy would be an adequate be plain that such cient to the ends of justice and its prompt administration justice and its prompt administration cient to the ends of If Massachusetts were to the close NOARC adequacy framework. options that could remedy the al- have unexhausted administrative requiring them to pursue such leged injury, without judicial review, remedies would be just and efficient. would affect the adequacy of the non-legal but real conditions that alternative ARC—revealed largely applicable to consequences it would impact the complete- much of the adequacy inquiry. First, adjudication by the Claims ness of the remedy (if the inexpert against plaintiff, those practical Court resulted in a faulty judgment the completeness of the rem- considerations would have affected the practicality of the remedy. edy). Second, it would clearly impact the Practical considerations, such as of the Claims Court, or such as row focus and off-point expertise the USDA, rendering futile the the on-the-ground conditions of remedy in proposed alternate administrative Such “futile” ARCs are, practically the practicality of the remedy. speaking, not adequate. alternative ARC’s ability to render the promptness of the proposed in justice. Again, this is tellingly illustrated cal ARC inquiry would have revealed information about the time- line of the proposed alternative administrative remedies—that is, practically speaking, the USDA’s OCR being mismanaged as egre- 35568-nys_69-2 Sheet No. 33 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 33 35568-nys_69-2 35568-nys_69-2 Sheet No. 33 Side B 10/28/2014 12:36:12 opin- Bowen court Bowen Bowen . It may not have . It may Bowen other adequate remedy no opinion demonstrates that the Court opinion demonstrates that the Court’s multifaceted efforts went to its and NOARC Step Four: Say No and NOARC Step Bowen Bowen Bowen 4. In this way, the As demonstrated in Part II.B of this Article, the As demonstrated in Part II.B of The final step of the NOARC framework articulates a court’s the NOARC framework articulates The final step of some ob- requirement imposes on the court At minimum, this For these reasons and in at least these described ways, the ade- ways, the at least these described reasons and in For these clearly came at the NOARC question from more than one angle, clearly came at the NOARC question four separate lines of inquiry de- introducing to my count at least “Is this proposed alternative ARC signed to answer the question, court’?” And though its analyses really an ‘adequate remedy in a without clear transitions or signal- were confusingly intermingled, the Court’s analyses neverthe- ing, and with internal contradiction, of the Claims Court as a possible less did reveal different aspects alternative ARC. The analyzing all the ways it could did not rest until it had exhausted ARC to be adequate. And hav- conceive of the proposed alternative sufficient, the Court determined ing found none of them to be NOARC existed and remanded the case so the lower courts could conduct the § 706 review the appellant had always wanted. articulated its primary adequacy inquiry in the terms suggested in adequacy inquiry in the articulated its primary analysis was consistent with it. Part IV.A, but its of this fourth step. Even though ion arguably achieved the purpose more than one ARC—anthe Court did not appear to consider al- Court was the only alternative ternative remedy under the Claims being considered—and the Court did not include a even though has determined that the only statement to the effect of “this Court in the Claims Court; therefore, possible alternative ARC is review ARC we will consider,” the that is the proposed alternative at analyzing the one proposed al- Court was nevertheless successful ternative in multiple ways. responsibility to determine not just that the proposed alternative determine not just that the proposed responsibility to ARC. As discussed but that there is no other ARC is not adequate, responsibility. how a court is to fulfill this above, it is unclear the in its analysis. In this way, ligation to be thorough 414against weigh would indicated evidence unrebutted as the giously NYU for providing means a viable as being ARC alternative the proposed ANNUAL SURVEY OF NOARC required by the of justice, as is administration a prompt AMERICAN LAWframework. [Vol. 69:357 framework NOARC by the faithful required quacy determination in Court by the Supreme was undertaken \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 58 28-OCT-14 9:10 in a court.” The Court could have done so more explicitly and obligation to assure that there was truly “ 35568-nys_69-2 Sheet No. 33 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 33 35568-nys_69-2 35568-nys_69-2 Sheet No. 34 Side A 10/28/2014 12:36:12 opin- Castelano did not— Bowen and Bowen Garcia CONCLUSION Thus, this Article is an effort to revitalize the academic and In these ways, what sense we could make from the we could make ways, what sense In these (1) the with NOARC arise for two reasons: The difficulties any positive discussion of a But concluding this Article without in itself to guide courts to This first effort is likely insufficient and what courts, practitioners, would-be plaintiffs, and the larger and what courts, practitioners, legal community have not yet had—a systematic method of deter- §mining whether an APA case meets requirement, 704’s NOARC thereby making way for APA review and getting the aggrieved into federal court. judicial conversations surrounding NOARC. As 2013] thor- to be have tried to appears it certainly but thoroughly, more requires. framework NOARC step of the fourth as the ough, itself. reading of NOARC results of a close align with the ion does how- not be necessary, would and puzzle-piecing Such backfilling ADEQUACY TOWARD a clearer analysis with its initial Court had undertaken ever, if the adequacy of determining and difficulties obligations eye to the under § Hopefully, in future the Su- 704’s NOARC requirement. other courts will be better guided. preme Court and 415 of §NOARC language analysis; and (2) the legal 704 resists easy language of §yet to realize that the NOARC community has 704 Article is to allevi- The primary purpose of this resists easy analysis. lack of awareness caused by reason number two: ate the problems If courts, practitioners, and of NOARC’s entrenched difficulties. begin to recognize some of the the legal community writ broad and the confusion within the Su- opacity in NOARC’s language perhaps we will undertake our preme Court’s only case on point, cognizance that it might not be future NOARC analyses with some that adequacy (and inadequacy) clear whether an ARC exists and of ways. can be demonstrated in a variety leave the first reason for pervasive coherent NOARC analysis would confusion—NOARC’sof easy analysis—entirely resistance un- a close reading of §remedied. Thus, Part IV.A undertook 704’s a four-step framework that could NOARC language and derived guide future NOARC analyses. In some ways, this is inher- careful and faithful NOARC outcomes. itself; building a requirement on a ent to the problems of NOARC require courts to make judg- word like “adequate” may necessarily courts might disagree. But ment calls with which other reasonable provide what the NOARC framework itself does \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 59 28-OCT-14 9:10 35568-nys_69-2 Sheet No. 34 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 34 35568-nys_69-2 35568-nys_69-2 Sheet No. 34 Side B 10/28/2014 12:36:12 416§ of the question clear, make issue. an esoteric is not NOARC 704 NYU travel, right to the citizenship, with line, along on the is Livelihood ANNUAL SURVEY OF gender discrimination. from racial and and freedom family farms, AMERICAN LAWThese issues—about we care so much—can which turn on whether [Vol. 69:357 of the requirements and faithfully apply understand or not we § by the caused for all the grievances reasons, and 704. For these in- of agency-person thousands of millions or millions or thousands NOARC dialogue. we must have a more robust teractions each year, not be adequate. Anything less would \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 60 28-OCT-14 9:10 35568-nys_69-2 Sheet No. 34 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 34 35568-nys_69-2 35568-nys_69-2 Sheet No. 35 Side A 10/28/2014 12:36:12 R R R R R R R R R R R R R R R R R R R R R .... 419 ..... 423 ...... 436 ...... 424 ...... 426 ...... 420 ...... 420 ...... 422 ...... 433 Moriarty v. Svec 417 ...... 431 Sheppard v. Riverview Nursing Sheppard v. Riverview Parke v. First Reliance Standard Ingram v. Oroudjian Lohman v. Duryea Borough Diaz v. Jiten Hotel Management, ...... 431 ...... 422 ...... 421 ...... 438 ...... 421 SETH KATSUYA ENDO* SETH KATSUYA ...... 429 ...... 419 ...... 425 ...... 426 Role in Policing Unethical Lawyers Center, Inc. Life Ins. Co. Inc. NEGOTIATIONS AFFECT NEGOTIATIONS ...... 418 ...... 439 ATTORNEYS’ FEES AWARDS? FEES ATTORNEYS’ Consideration of Settlement Negotiations when Consideration of Settlement Negotiations Determining Attorneys’ Fees Awards Demands and Rejections of Defendants’ of Success Settlement Offers as to the Degree Achieved Settlement Negotiations Should Affect Attorneys’ Settlement Negotiations Fees Awards 1. Settlements 2. Interactions with Rule 68 3. Judiciary’s Attorney-Client Conflicts and the 5. Ninth Circuit: 6. First Circuit: 1. Fourth Circuit: 2. Seventh Circuit: 3. Eighth Circuit: 4. Third Circuit: A. Whether Federal Rule of Evidence 408 Prohibits B. Settlement The Probative Value of Plaintiffs’ C. Policy Implications A. Rule and Fee-Shifting Statutes The American B. Attorneys’ Fees Awards Calculating C. Rule of Civil Procedure 68 Federal D. Evidence of Circuit Cases Evaluating Whether SHOULD EVIDENCE OF SETTLEMENT OF EVIDENCE SHOULD I. Background * J.D. 2007, N.Y.U. School of Law. In addition to working in private practice, II. Discussion III. Recommendation Seth Katsuya Endo has clerked for several federal and state judges. Conclusion \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 1 28-OCT-14 9:30 Introduction 35568-nys_69-2 Sheet No. 35 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 35 35568-nys_69-2 35568-nys_69-2 Sheet No. 35 Side B 10/28/2014 12:36:12 This created a This created 1 Accordingly, it is reasonable 3 Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. INTRODUCTION see also 2 note 2; Ingram v. Oroudjian, 647 F.3d 925, 927 (9th Cir. 2011); Lohman v. Ingram v. Oroudjian, 647 F.3d 925, 927 See See supra This circuit split creates a substantial inconsistency across the creates a substantial inconsistency This circuit split In October 2012, the U.S. Court of Appeals for the First Circuit Court of Appeals 2012, the U.S. In October This Article begins by providing a brief background on the This Article begins by providing 1. 150 (1st Cir. 2012). Diaz v. Jiten Hotel Mgmt., Inc., 704 F.3d 2. 3. 1997 (2012) (addressing whether the costs that may be awarded to prevailing par- ties under 28 U.S.C. § 1920 includes the cost of translating documents). Duryea Borough, 574 F.3d 163 (3d Cir. 2009); Parke v. First Reliance Standard Life Duryea Borough, 574 F.3d 163 (3d Cir. Moriarty v. Svec, 233 F.3d 955 (7th Cir. Ins. Co., 368 F.3d 999 (8th Cir. 2004); Ctr., Inc., 88 F.3d 1332, 1337 (4th Cir. 2000); Sheppard v. Riverview Nursing this question prior to the publication of 1996). The Sixth Circuit also addressed this Issue did not permit a full discussion this Article, but the printing schedule of at of this opinion. McKelvey v. Sec’y of U.S. Army, No. 13-2427, 2014 WL 4637754, *6 (6th Cir. Sept. 18, 2014). held that a district court erred by reducing a prevailing plaintiff’s a prevailing erred by reducing a district court held that negotia- of settlement based on evidence attorneys’ fees requested far ex- offer that rejected a settlement which the plaintiff tions in at trial. was awarded what the plaintiff ceeded six circuits listed above and enhances uncertainty in the jurisdic- above and enhances uncertainty six circuits listed although procedu- yet addressed the issue. And, tions that have not the public’s to attorneys’ fees might not capture ral issues related part of the have been recognized as an important imagination, they tactical terrain of everyday litigation. 418 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:417 \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 2 28-OCT-14 9:30 to project that, if petitioned, the Supreme Court might grant certio- to project that, if petitioned, the another case presenting similar rari in the First Circuit case or issues. the general principles and “American Rule,” fee-shifting statutes, fees awards under the fee- processes used to calculate attorneys’ of Federal Rule of Civil Proce- shifting statues, and a description the holdings in the six cases that dure 68. Next, the Article surveys court may consider evidence of have addressed whether a district an award of attorneys’ settlement negotiations when determining issues with these courts’ analyses, fees. The Article then discusses negotiations is inadmissi- assessing whether evidence of settlement Evidence 408, the extent to which ble pursuant to Federal Rule of of the amount truly sought by such evidence is reasonably probative circuit split, breaking from the precedent established by the Third, established by the precedent breaking from circuit split, courts had ap- Eighth, and Ninth Circuits. These Fourth, Seventh, negotiations as consideration of settlement proved district courts’ obtained—a of the degrees of success part of their assessments key under the of attorneys’ fees awards calculated factor in adjustments lodestar method. 35568-nys_69-2 Sheet No. 35 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 35 35568-nys_69-2 35568-nys_69-2 Sheet No. 36 Side A 10/28/2014 12:36:12 Stat- 7 UCLA L. , 51 1976 U.S.C.C.A.N. 5908, This stands in contrast to 4 reprinted in I. BACKGROUND These statutes cover a variety of areas, in- These statutes cover a variety of 6 In other contexts, such as when a litigant has In other contexts, such as when Calculating Lawyers’ Fees: Theory and Reality 10 94-1011, at 6 (1976), . O Pennsylvania v. Delaware Valley Citizens’ Council for Clean . N EP A.Rule and Fee-Shifting Statutes The American This rationale also generally applies when fee-shifting is This rationale also generally applies 9 S. R Ruckelshaus v. Sierra Club, 463 U.S. 680, 684 (1983). Ruckelshaus v. Sierra Club, 463 U.S. 680, Michael Kao, Alyeska Pipeline Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). Alyeska Pipeline Co. v. Wilderness Soc’y, at 827–28. The goal of fee awards in civil rights cases is to ensure that The goal of fee awards in civil rights 8 See generally But there are more than 150 federal statutes that permit the But there are more than 150 federal See See See See Id. Id. 5 The Article argues that the First Circuit’s position is problem- the First Circuit’s argues that The Article own attorneys’ requires parties to pay their The American Rule 10. 6. 7. 9. 4. 5. 8. 825, 827 (2004). . EV R 5913. Air, 483 U.S. 711, 735 (1987) (Blackmun, J., dissenting). 2013] either permit- to related ramifications policy and the plaintiff, the NEGOTIATIONS SETTLEMENT OF EVIDENCE such evidence. considering from courts district or prohibiting ting negative and implicit on an attenuated it relies heavily atic because 419 that empirical research and ignores the of Rule 68 implication relationship. issues in the attorney-client agency reveals endemic a prophy- than adopting that, rather Article also contends But the their cli- at discouraging lawyers from counseling lactic rule aimed additional fees, the in the hopes of accruing ents against settlement referrals to state use either monetary sanctions or better path is to cases. a finding of misconduct in specific bar agencies upon fees in the usual course of civil litigation. \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 3 28-OCT-14 9:30 competent counsel is available while not producing windfalls to the competent counsel is available while attorneys. authorized in cases involving the vindication of other statutory or authorized in cases involving the constitutional rights. award of attorneys’ fees, most predicated on the party achieving award of attorneys’ fees, most predicated some degree of success. cluding consumer credit, copyright, and environmental law. cluding consumer credit, copyright, acted in bad faith by unreasonably removing a case to federal court, acted in bad faith by unreasonably the practice in England, where for centuries courts have been au- the practice in England, where attorneys’ fees, to the prevailing thorized to award costs, including party. utes pertaining to the enforcement of civil rights frequently permit utes pertaining to the enforcement fees to prevailing parties and are the award of reasonable attorneys’ of authority for fee-shifting some of the most utilized sources awards. 35568-nys_69-2 Sheet No. 36 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 36 35568-nys_69-2 35568-nys_69-2 Sheet No. 36 Side B 10/28/2014 12:36:12 This final 15 If the judgment 21 If the opposing party 19 Pursuant to the rule, at 17 Evidence of an unaccepted offer is only Evidence of an unaccepted offer 20 In its basic form, the court determines a rea- determines a form, the court In its basic 12 68(a). 68(b). . P. . P. C. Federal Rule of Civil Procedure 68 note 8, at 828–29. B. Awards Attorneys’ Fees Calculating IV IV , Martin v. Franklin Capital Corp., 546 U.S. 132, 140–41, Martin v. Franklin Capital Corp., 546 (2005); at 436; City of Riverside v. Rivera, 477 U.S. 561, 585 (1986) (Powell, at 436; City of Riverside v. Rivera, 477 U.S. supra . R. C . R. C This amount generally carries a presumption of reasona- carries a presumption of This amount generally But the lodestar may be adjusted downward or upward may be adjusted downward or But the lodestar Hensley v. Eckerhart, 461 U.S. 424, 434 & n.9 (1983) (noting that the Hensley v. Eckerhart, 461 U.S. 424, 434 at 829. The opposing party has fourteen days to accept this offer The opposing party has fourteen 16 11 13 ED ED 14 18 Id. Id. F F See, e.g. Id. See See id. Federal Rule of Civil Procedure 68 provides a procedural Federal Rule of Civil Procedure Most courts use the lodestar method to determine a reasonable method to determine use the lodestar Most courts 20. 19. 21. 11. 12. Kao, 13. 14. Blum v. Stenson, 465 U.S. 886, 897 (1984). 15. 16. 17. Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981). 18. Chambers v. NASCO, Inc., 501 U.S. 32, 53–54Chambers v. NASCO, Inc., 501 U.S. 32, (1991). 420 unethical and deter punish is to awards the fee goal of the NYUconduct. ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:417 \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 4 28-OCT-14 9:30 by serving a written notice of acceptance. bleness. difficulty of the of factors such as the novelty and based on a variety service, whether necessary to perform the legal questions, the skill contingent, and the result obtained. the fee is fixed or sonable hourly rate and multiplies this figure by the number of figure by the number multiplies this hourly rate and sonable derive a lodestar expended by the attorney to hours reasonably amount. mechanism by which defendants may constrain costs. The purpose mechanism by which defendants of the rule is to encourage settlement. attorneys’ fee award. attorneys’ admissible in a proceeding to determine costs. admissible in a proceeding to determine least fourteen days before the trial, a defendant may serve an “offer least fourteen days before the trial, terms, with the costs then ac- to allow judgment on specified crued.” less favorable than the unaccepted that the offeree finally obtains is does not accept the offer, it is considered withdrawn but does not does not accept the offer, it is considered preclude a later offer. factor—the of success obtained—is degree fac- the most important and the relief by comparing the relief sought tor and is measured awarded. district court may consider the factors set forth in Johnson v. Georgia Highway district court may consider the factors Exp., Inc., 488 F.2d 714, 717–19 (5th Cir. 1974)). J., concurring in judgment). 35568-nys_69-2 Sheet No. 36 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 36 35568-nys_69-2 35568-nys_69-2 Sheet No. 37 Side A 10/28/2014 12:36:12 The Fourth The Fourth 27 30 , the plaintiff re- 31 , the Fourth Circuit Sheppard In 24 26 Sheppard v. Riverview Nursing Center, Inc. Sheppard v. Riverview 23 68(d). the district court’s determination regarding the the district court’s determination . P. 28 , IV , 88 F.3d at 1337. If the underlying statute includes attorneys’ fees as part attorneys’ includes statute underlying If the Negotiations Should Affect Attorneys’ Fees Awards Should Affect Negotiations 22 . R. C Marek v. Chesny, 473 U.S. 1, 9 (1985). at 1334. at 1334–35. at 1337. at 1339. ED In its ruling, the district court rejected the defendant’s ar- district court rejected the defendant’s In its ruling, the Sheppard v. Riverview Nursing Center, Inc. Sheppard v. Riverview See Id. F Id. Id. Sheppard Id. Id. 1. Fourth Circuit: The Fourth Circuit asserted that “refusing a reasonable offer The Fourth Circuit asserted that 25 D.of Settlement Whether Evidence Evaluating Circuit Cases 29 In that Rule 68 did not apply On appeal, the Fourth Circuit held 23. 24. 88 F.3d 1332, 1333–34 (4th Cir. 1996). 25. 22. 26. 27. 28. 506 U.S. 103 (1992). 29. 30. 31. of its definition of “costs,” then attorneys’ fees are included in Rule fees are included then attorneys’ of “costs,” of its definition costs. 68’s post-offer but that “a court may consider a plaintiff’s rejection of a settlement but that “a court may consider a informing its discretionary offer as one of several factors generally provision. inquiry” under the applicable fee-shifting 2013] offer after the costs incurred pay the must party the opposing offer, NEGOTIATIONS SETTLEMENT OF EVIDENCE was made. 421 its full discretion court failed to appreciate held that the district the case for of attorneys’ fees and remanded regarding its award reconsideration. the district court’s \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 5 28-OCT-14 9:30 of settlement promotes few public interests when the plaintiff ulti- of settlement promotes few public recovery after trial.” mately receives a less favorable gument that Rule 68 prohibited the plaintiff from recovering fees 68 prohibited the plaintiff from gument that Rule offer of $5,000, which had incurred after its pre-trial settlement been rejected by the plaintiff. appropriate amount of fees should have considered both the plain- appropriate amount of fees should purposes served by the litiga- tiff’s degree of success and the public tion. Circuit observed that, pursuant to the Supreme Court’s guidance in Circuit observed that, pursuant to Farrar v. Hobby Circuit ultimately remanded the case for reconsideration in accor- Circuit ultimately remanded the in its opinion. dance with the principles laid out ceived $40,000 in attorneys’ fees after the district court granted her attorneys’ fees after the district ceived $40,000 in discrimination in a mixed-motive employment declaratory relief claim. 35568-nys_69-2 Sheet No. 37 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 37 35568-nys_69-2 35568-nys_69-2 Sheet No. 37 Side B 10/28/2014 12:36:12 41 The 37 , 233 F.3d Before the Before 33 Moriarty , the plaintiff suc- Prior to trial, the 39 36 Moriarty v. Svec Moriarty and additionally reasoned that “at- and additionally 38 The Seventh Circuit remanded the The Seventh Circuit 35 Sheppard Parke v. First Reliance Standard Life Ins. Co. Parke v. First Reliance Standard Life Ins. Parke v. First Reliance Standard Life Ins. Co., No. 99- , the Seventh Circuit held that a district court Circuit held , the Seventh The plaintiff—the of several pension trustee 32 2. Circuit: Seventh see also , 233 F.3d at 967. In its determination of the fee award, the district court In its determination of the fee The plaintiff’s ultimate recovery was significantly less ultimate recovery was significantly The plaintiff’s at 960 (citing Marek v. Chesny, 473 U.S. 1, 11 (1985)). at 960 (citing Marek v. Chesny, 473 U.S. at 1012. at 1012; . at 960. . . 40 34 Parke v. First Reliance Standard Life Ins. Co. Parke v. First Reliance Standard Life Moriarty v. Svec Moriarty Id Id Id Id. Id. Moriarty Id. Id. 3. Eighth Circuit: In In support of its holding that a district court must consider a holding that a district court must In support of its In 32. 233 F.3d 955, 967 (7th Cir. 2000). 33. 34. 35. 36. 37. 38. 39. 368 F.3d 999, 1009–10 (8th Cir. 2004). 40. 41. ceeded on an ERISA benefits claim, recovering less than $700 in ceeded on an ERISA benefits claim, fees. damages and over $90,000 in attorneys’ substantial settlement offer in determining whether to adjust an offer in determining whether substantial settlement method, the fees calculated under the lodestar award of attorneys’ to Seventh Circuit cited 422 NYU ANNUAL SURVEY OF AMERICAN offer in determining settlement a substantial must consider LAW under the fees calculated of attorneys’ to adjust an award whether [Vol. 69:417 method. lodestar a party rejects a substantial offer torney’s fees accumulated after party, and thus a reasona- provide minimal benefit to the prevailing the lodestar calculation.” ble attorney’s fee may be less than \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 6 28-OCT-14 9:30 stated that it could consider the rejected settlement but, ultimately, stated that it could consider the of the requested attorneys’ fees. granted the plaintiff almost all than the offer, but the plaintiff was still awarded a substantial but the plaintiff was still awarded than the offer, fees. amount in attorneys’ funds—soughtSecurity Income Employee Retirement delinquent $50,000. totaling about contributions Act (ERISA) matter to the district court because its order awarding attorneys’ court because its order awarding matter to the district the settlement offer. fees did not mention defendant offered the plaintiff $25,000 in settlement, but this was defendant offered the plaintiff $25,000 rejected. matter proceeded to trial, the defendant made a settlement offer of to trial, the defendant made a matter proceeded $43,000. Seventh Circuit confirmed that the district court may choose to Seventh Circuit confirmed that settlement offer but that it need award no fees incurred after the not reduce the lodestar at all. cv-1039, 2003 WL 131731, at *3–4 (citing (D. Minn. Jan. 8, 2003) 955 and Sheppard v. Riverview Nursing Ctr., Inc., 88 F.3d 1332 (4th Cir. 1996)). 35568-nys_69-2 Sheet No. 37 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 37 35568-nys_69-2 35568-nys_69-2 Sheet No. 38 Side A 10/28/2014 12:36:12 Using 44 The Third Cir- 49 50 The district court then The district court 45 47 The district court reduced the The district court , the Third Circuit held that the Circuit held , the Third In the district court proceeding, In the district court 46 43 Lohman v. Duryea Borough Lohman v. The Third Circuit then asserted that The Third Circuit then asserted 48 42 4. Circuit: Third , 574 F.3d at 167–68. , 368 F.3d at 1012–13. The Eighth Circuit reversed the district court at 164–65. at 166. at 166. at 167. at 168. Lohman v. Duryea Borough Lohman Parke Id. Id. Id. Id. Id. Lohman Id. The Third Circuit then turned to the plaintiff-appellant’s argu- The Third Circuit then turned to The Third Circuit agreed with the district court that Federal The Third Circuit agreed with In 42. 43. 574 F.3d 163, 168–69 (3d Cir. 2009). 44. 45. 46. 47. 48. 49. 50. on part of the attorneys’ fee award, holding that work done for pre-litigation ad- on part of the attorneys’ fee award, holding as part of the fee. ministrative hearings could not be included ments. First, the Third Circuit rejected the plaintiff-appellant’s ar- ments. First, the Third Circuit rejected of evidence from settlement gument that permitting the use fees went against the public policy negotiations to reduce attorneys’ because it would penalize civil of encouraging civil rights litigation partial success. rights attorneys who achieve only district court did not commit reversible error by considering the not commit reversible error by district court did when determin- of a substantial settlement offer plaintiff’s rejection attorneys’ fees. ing an award of the district court’s consideration Rule of Evidence 408 did not bar of the attorneys’ fees of settlement negotiations in its determination such evidence when it goes award because Rule 408 only excludes to the validity of the claim. 2013] af- Circuit the Eighth issue, this discussing specifically Without NEGOTIATIONS SETTLEMENT OF EVIDENCE one exception with fee award attorneys’ court’s the district firmed relevant here. that is not 423 \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 7 28-OCT-14 9:30 settlement negotiations might be an indicator of the measure of settlement negotiations might be that such factual determinations success achieved by a plaintiff and the district court. are best left to the discretion of lodestar, in part, because the plaintiff had rejected a $75,000 settle- because the plaintiff had rejected lodestar, in part, probative of the the district court viewed this as ment offer and ultimate success. level of the plaintiff’s the plaintiff prevailed on a wrongful discharge action, receiving ap- on a wrongful discharge action, the plaintiff prevailed damages. in lost wages and nominal proximately $12,000 reduced the award to $30,000. reduced the award the lodestar method, the district court arrived at a product of the district court arrived the lodestar method, plaintiff’s attorneys’ fees. $63,000 for the 35568-nys_69-2 Sheet No. 38 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 38 35568-nys_69-2 35568-nys_69-2 Sheet No. 38 Side B 10/28/2014 12:36:12 51 61 The dis- 62 56 The district court had 57 58 The plaintiffs opened with a de- Ingram v. Oroudjian 59 The Third Circuit also noted that, The Third Circuit 55 In a footnote, the Third Circuit In a footnote, 54 , the Ninth Circuit held that the district , the Ninth Circuit held that the The case later settled for a total of $32,000. The case later settled for a total 60 5. Ninth Circuit: , 574 F.3d at 168 n.4. The Third Circuit’s ostensible reasoning was that the reasoning Circuit’s ostensible The Third 53 at 168–89. at 169. 52 Ingram v. Oroudjian Id. Id. Id. Id. Lohman Id. Id. Id. Id. Id. Id. In The Third Circuit also asserted that the existence of Rule 68 also asserted that the existence The Third Circuit that its holding permitted dis- Finally, the Third Circuit noted Next, the Third Circuit stated that permitting settlement nego- settlement that permitting Third Circuit stated Next, the 51. 52. 53. 54. 55. 56. 57. 58. 647 F.3d 925, 927 (9th Cir. 2011). 59. 60. 61. 62. court did not err by considering a rejected settlement offer when court did not err by considering fees. determining an award of attorneys’ The plaintiffs sought almost $90,000 in attorneys’ fees. The plaintiffs sought almost $90,000 did not preclude the district court from considering informal nego- the district court from considering did not preclude the extent of re- purpose of determining tiations for the unrelated a plaintiff. lief sought by negotiations when measuring trict courts to consider settlement reduction. success but did not require any 424 that and established were well reductions that such observed cuit NYU rights cases. in civil awards for fee made had been no exception ANNUAL SURVEY OF AMERICAN LAW but such discussions, would not hamper to be considered tiations [Vol. 69:417 nego- realistic settlement reasonable and “encourage instead would tiations.” \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 8 28-OCT-14 9:30 mand of $425,000. settlement negotiations were only being used for the accepted pur- used for the accepted were only being negotiations settlement to achieve by what the plaintiff sought poses of discerning litigating. distinguished several cases relied upon by the plaintiff-appellant, cases relied upon by the distinguished several did not set forth were factually distinguishable and finding that they rule. an applicable categorical encouraged the parties to settle. in the case before it, the district court did not deny the plaintiff all it, the district court did not deny in the case before offer but after he rejected the settlement fees and costs incurred part because the plaintiff was ulti- merely reduced the fee award in than he sought. mately awarded substantially less 35568-nys_69-2 Sheet No. 38 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 38 35568-nys_69-2 35568-nys_69-2 Sheet No. 39 Side A 10/28/2014 12:36:12 66 The plaintiffs argued plaintiffs The 63 The First Circuit also as- , the First Circuit held that , the First Circuit 69 The First Circuit cited precedent 71 65 Diaz v. Jiten Hotel Management, Inc. Diaz v. Jiten Hotel It then stated that the inherent uncertainty in It then stated that the inherent uncertainty The Ninth Circuit rejected this argument Circuit rejected The Ninth 68 67 64 70 , 647 F.3d at 927. 6. First Circuit: at 154. that the settlement proceedings were probative as to the probative as to were settlement proceedings that the Diaz v. Jiten Hotel Management, Inc. Diaz v. Jiten Hotel Id. Ingram Id. Id. Id. Id. Id. Id. Finally, the First Circuit noted that Rule 68 provides a mecha- Finally, the First Circuit noted that The First Circuit began by asserting that a contingent fee ar- The First Circuit began by asserting In 64. 65. 66. 704 F.3d 150, 155 (1st Cir. 2012). 67. 63. 68. 69. 70. 71. the district court erred by reducing a prevailing plaintiff’s re- erred by reducing a prevailing the district court on the plain- fees from $44,766 to $25,000 based quested attorneys’ $75,000 and the a pre-trial settlement offer of tiff’s rejection of damages. award of only $7,650 in compensatory jury’s subsequent contain fees and costs through a nism by which a defendant can reasonable settlement offer. The First Circuit observed that the district court disclaimed any in- observed that the district court The First Circuit but nevertheless by the plaintiff’s counsel, dication of impropriety attorneys to en- was “a perverse incentive for assumed that there proceed to trial to to reject reasonable offers and courage clients earn more in fees.” an attorney may recover under rangement does not cap the amount fee-shifting statutes. 2013] $30,000. approximately court awarded trict NEGOTIATIONS SETTLEMENT OF EVIDENCE 425 \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 9 28-OCT-14 9:30 from its jurisdiction that a “garden-variety settlement offer made from its jurisdiction that a “garden-variety based on its agreement with the reasoning of the Third Circuit in of the Third with the reasoning its agreement based on Lohman success achieved. ultimate taking a case to trial creates proper incentives for civil rights attor- taking a case to trial creates proper take reasonable settlement offers neys to encourage their clients to attorney would then be ineligi- because the suit might fail and the at all. ble for the recovery of any fees serted that, contrary to its statement regarding the lack of indicia of serted that, contrary to its statement assumed that the attorney impropriety, the district court implicitly her ethical duty, which requires was not concerned with violating make the ultimate settle- that the plaintiff (and not her attorney) ment decision. in part that the district court should not have considered the settle- the considered not have should court district that the in part ment proceedings. 35568-nys_69-2 Sheet No. 39 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 39 35568-nys_69-2 35568-nys_69-2 Sheet No. 39 Side B 10/28/2014 12:36:12 75 Rule 73 , the Third Lohman II. DISCUSSION 72 , 704 F.3d at 154 (quoting Spooner v. EEN, Inc., 644 F.3d 62, 71 (1st at 167–68. at 168. The Third Circuit stated that the evidence of the settle- The Third Circuit stated that Diaz Id. Id. 74 Given the existence of Federal Rule of Evidence 408, the first of Federal Rule of Evidence Given the existence (1) furnishing, promising, or offering—or accepting, prom- ising to accept, or offering to accept—a valuable considera- to compromise the tion in compromising or attempting claim; and during compromise nego- (2) conduct or a statement made tiations about the claim . . . . evidence of the settlement ne- The Third Circuit held that the Settlement Negotiations when Determining Attorneys’ Fees Awards when Determining Attorneys’ Settlement Negotiations 72. 73. 574 F.3d at 167. 74. 75. (a) Prohibited Uses. Evidence of the following is not admissi- (a) Prohibited Uses. Evidence of ble—on behalf of any party—eitherto prove or disprove the claim or to impeach by a prior validity or amount of a disputed inconsistent statement or a contradiction: this evidence for another (b) Exceptions. The court may admit bias or prejudice, negating purpose, such as proving a witness’s proving an effort to obstruct a a contention of undue delay, or criminal investigation or prosecution. A. of of Evidence 408 Prohibits Consideration Whether Federal Rule The Third Circuit essentially characterized the use of this evidence The Third Circuit essentially characterized 426 protection” no similar offeror the 68 affords to Rule resort without NYU offer informal use an not could the defendant that concluded and ANNUAL SURVEY OFas a sword. AMERICAN LAW [Vol. 69:417 \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 10 28-OCT-14 9:30 ment negotiations was instead a measure of the success of the suit. ment negotiations was instead a measure Cir. 2011)). Circuit analyzed whether Federal Rule of Evidence 408 barred the whether Federal Rule of Evidence Circuit analyzed of the settlement negotiations. district court’s consideration issue that must be addressed is whether evidence of settlement ne- addressed is whether evidence issue that must be evaluating the de- admissible for the purposes of gotiations is even achieved in the litigation. In gree of success 408 states: “not offend the clear terms of gotiations was admissible and did used to prove the validity of the Rule 408” because it was not being claim. 35568-nys_69-2 Sheet No. 39 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 39 35568-nys_69-2 35568-nys_69-2 Sheet No. 40 Side A 10/28/2014 12:36:12 81 Al- , the court al- Instead, the ques- 84 Alphonso 80 EMI Catalogue Partnership EMI Catalogue , 1996 WL 280813, at *2. The Third Circuit distin- The Third 79 in a proceeding to determine except Protecting the Confidentiality of Settlement Negoti- , 356 F. Supp. 2d 442, 445 (D.N.J. 2005). which prohibited the introduction of the introduction which prohibited 77 , is unconvincing. In But, ultimately, the determination of the attor- But, ultimately, 955, 966 (1988). see also EMI Catalogue P’ship 68(b). 82 which allowed it. which , stating that the plaintiff there sought to intro- , stating that the . P. Wayne D. Brazil, 78 L.J. , Alphonso 76 IV , 574 F.3d at 165. . R. C ASTINGS at 167–68. at 167. at 167–68; Alphonso H ED Alphonso v. Pitney Bowes, Inc. F Id. Lohman Id. See generally Id. 83 The Third Circuit’s attempt to distinguish the situation before The Third Circuit’s attempt to distinguish The Third Circuit failed to explain how evidence of what the failed to explain how evidence The Third Circuit As part of this discussion, the Third Circuit noted that the dis- noted that the the Third Circuit this discussion, As part of , 39 84. 83. 76. 77. 356 F. Supp. 2d 442 (D.N.J. 2005). 78. May 24, 1996). No. 86-cv-1149, 1996 WL 280813 (S.D.N.Y. 79. 80. 82. 81. it from that in plaintiff sought (or what the defendant offered) does not go to (or what the defendant offered) plaintiff sought to have relied of the disputed claim. It appears proving the amount the information to the district court was not using on the fact that was entitled. award to which the plaintiff determine the merits of some courts to is consistent with the tendency Such an approach evidence of settle- the term “disputed” to allow in narrowly define ment negotiations. 2013] of the amount not the award, the fee of evaluation to the as going NEGOTIATIONS SETTLEMENT OF EVIDENCE claim. disputed the issue, including: several cases on had discussed trict court 427 Pitney Bowes, Inc. phonso v. \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 11 28-OCT-14 9:30 evidence of settlement negotiations; and and of settlement negotiations; evidence v. CBS/Fox Co. v. CBS/Fox neys’ fees award is driven by resolving a dispute as to the true neys’ fees award is driven by resolving amount of the claim—as court’s assessment of the de- part of the plaintiff—thatgree of success achieved by the is being proved by Rule 408’s prohibition on evi- evidence of settlement negotiations. is not, by its explicit terms, limited dence of settlement negotiations of the merits award. Instead, Rule solely to the court’s calculation settlement negotiations to prove 408 simply prohibits evidence of without reference to any specific the amount of a disputed claim, to the explicit provision of Federal context. This stands in contrast provides that an unaccepted offer Rule of Civil Procedure 68, which of judgment is not admissible costs. ready had determined that the plaintiff’s claim had no basis (i.e., ready had determined that the at issue). the merits of the claim were no longer guished duce evidence of negotiations to demonstrate that the defendants negotiations to demonstrate that duce evidence of plaintiff’s claim had merit. believed that the ations 35568-nys_69-2 Sheet No. 40 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 40 35568-nys_69-2 35568-nys_69-2 Sheet No. 40 Side B 10/28/2014 12:36:12 see The plaintiff 85 Van Asdale v. Int’l Game, Tech., No. see also 87 89 But, even there, the Ninth Circuit noted that courts But, even there, 88 , 565 F.3d at 1105 n.4; The district court concluded that, under Rule 408, it concluded that, under Rule The district court at 447 n.4. 86 McCown v. City of Fontana, 565 F.3d 1097, 1104 n.4 (9th Cir. 2009); Id. Id. Id. See McCown On the other hand, the Ninth Circuit has approved considera- the Ninth Circuit has approved On the other hand, is not obviously ad- While evidence of settlement negotiations 86. 85. 88. 87. 89. Ferraro v. Kelley, No. 08-cv-11065, 2011 WL 576074, at *8 (D. Mass. Feb. 8, tion of evidence of settlement negotiations in determining attor- of settlement negotiations in tion of evidence neys’ fees too. the Third Circuit has addressed missible pursuant to Rule 408, only existing case law that implicitly ap- this question directly. Given the the questions raised above cannot, proves the use of the evidence, question as to whether district as a pragmatic matter, resolve the of settlement negotiations when courts should consider evidence Accordingly, additional analy- calculating an attorneys’ fees award. of a court’s consideration of sis is warranted to assess the propriety as part of its attorneys’ fees evidence of settlement negotiations determinations. 428 fees attorneys’ to entitled were defendants the was whether tion NYU §28 U.S.C. to pursuant ANNUAL to order an permits the court 1927, which SURVEY OF litigation multiplies the and vexatiously who unreasonably attorney AMERICAN LAW fees and attorneys’ excess costs, expenses, satisfy the to personally [Vol. 69:417 result of the misconduct. incurred as a reasonably \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 12 28-OCT-14 9:30 generally refrain from referencing proposed settlement agreements generally refrain from referencing parties wished for the evidence and that, in the case before it, both to be considered. was improper for the plaintiff to introduce this evidence to demon- the plaintiff to introduce this evidence was improper for of the plaintiff’s claim—evenstrate the validity the merits of though jury and the court been determined by the the claim had already only to see if to assess the evidence of the merits was being asked warranted. attorneys’ fees were sought to introduce evidence that the defendants made a settle- defendants made that the introduce evidence sought to as- the defendants’ the offer undermined arguing that ment offer, frivolous and plaintiff’s damage claims were sertions that the vexatious. also 2011). 3:04-cv-00703, 2011 WL 2118637, at *6 (D. Nev. May 24, 2011). 35568-nys_69-2 Sheet No. 40 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 40 35568-nys_69-2 35568-nys_69-2 Sheet No. 41 Side A 10/28/2014 12:36:12 ) 91 Ingram , and Laducer v. Dish Net- (The First Circuit, 90 Lohman , see also in the complaint is removed Moriarty in which the Supreme Court in which the Supreme , ad damnum Farrar Sheppard This issue often arises in the context of This issue often arises in the context 93 Degree of Success Achieved Degree of , Young v. Am. Cas. Co., 416 F.2d 906, 910–11 (2d Cir. 1969) (“The recoverable damages under North Dakota law for a claim of conver- recoverable damages under North Dakota Rejections of Defendants’ Settlement Offers as to the Offers Settlement of Defendants’ Rejections Ingram v. Oroudjian, 647 F.3d 925, 927 (9th Cir. 2011); Lohman v. Ingram v. Oroudjian, 647 F.3d 925, 927 92 See See, e.g. B. and Demands Settlement Plaintiffs’ Value of Probative The But it is not obvious that evidence of settlement negotiations is that evidence of settlement But it is not obvious The circuit courts that permit consideration of evidence of set- of evidence consideration courts that permit The circuit 90. 91. 150 (1st Cir. 2012). Diaz v. Jiten Hotel Mgmt., Inc., 704 F.3d 92. v. Rivera, 477 U.S. 561, 585 506 U.S. at 114 (quoting City of Riverside 93. maximum highly probative as to the amount sought by a plaintiff. As many as to the amount sought by a highly probative settlement demand might be courts have acknowledged, an early reflect the true amount mere puffery and might not accurately sought in the litigation. 2013] NEGOTIATIONS SETTLEMENT OF EVIDENCE 429 \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 13 28-OCT-14 9:30 federal jurisdiction determinations where some courts have re- federal jurisdiction determinations Duryea Borough, 574 F.3d 163, 167–68 (3d Cir. 2009); Moriary v. Svec, 233 F.3d Nursing Ctr., Inc., 88 F.3d 1332, 955, 967 (7th Cir. 2000); Sheppard v. Riverview 1337 (4th Cir. 1996). (1986) (Powell, J., concurring in judgment)). will be as far removed from the actual initial demand of plaintiff’s counsel often figure acceptable in settlement as the from the initial settlement demand, especially in a personal injury action. It is a from the initial settlement demand, especially a rare case where exploration of the pos- matter of common knowledge that it is receipt of the plaintiff’s demand, will not sibilities of settlement, beyond the mere amount.”); result in some substantial reduction of the 1045 (D.N.D. 2010) (“The early settle- work Serv., L.L.C., 691 F. Supp. 2d 1042, puffery and posturing at best. Such an ment demand of $175,000 is standard by a preponderance of the evidence that unreasonable demand does not establish particularly when one considers that the amount-in-controversy exceeds $75,000, the be in the range of $1,000 plus reasona- sion and consumer fraud in this case would ble costs and attorney’s fees.” (emphasis in original)); Randall v. Chevron U.S.A., Inc., No. 89-cv-4346, 1992 WL 25707, at *1 (E.D. La. Jan. 28, 1992) (“[A]lthough plaintiffs’ complaint sought damages well in excess of the judgment ultimately awarded (10 million dollars as compared to 2 million dollars), plaintiffs’ initial demand was, as most, not the amount sought.”). tlement negotiations as part of the calculation of attorneys’ fees of attorneys’ part of the calculation negotiations as tlement plaintiff’s demand or a settlement reason that a plaintiff’s generally to assessing settlement offer is relevant rejection of a defendant’s achieved in the litigation. the degree of success did not ad- permit consideration of such evidence, which does not determination. evidence was relevant to this dress whether the The approach set forth in The approach set noted that the degree of success achieved in a lawsuit is evaluated of success achieved in a lawsuit noted that the degree to the amount amount of damages awarded by comparing the sought. follows from the discussion in follows from the 35568-nys_69-2 Sheet No. 41 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 41 35568-nys_69-2 35568-nys_69-2 Sheet No. 41 Side B 10/28/2014 12:36:12 there 99 , Sfirakis v. , one plaintiff demanded After the filing of the com- After the filing Treating settlement demands Treating 95 94 Fletcher Fletcher v. City of Fort Wayne Broderick v. Dellasandro, 859 F. Supp. 176, Broderick v. Dellasandro, 859 F. Supp. cf. 98 , the complaint demanded judgment in demanded , the complaint The district court determined that where the The district court 96 , Golden v. Dodge-Markham Co., 1 F. Supp. 2d 1360, 1364–65, Golden v. Dodge-Markham Co., 1 F. , Beardsworth v. Bd. of Comm’r, No. 95-cv-2868, 1995 WL 617585, , Beardsworth v. Bd. of Comm’r, No. 95-cv-2868, On the other hand, the limited probative value prima- the limited probative value On the other hand, The first plaintiff ultimately accepted a Rule 68 settle- The first plaintiff ultimately accepted 97 at 976. , at *3. 100 Id. See, e.g. Id. Id. See, e.g. Additionally, as discussed in 94. 97. 95. (E.D. Pa. July 24, 1991). No. 91-cv-3092, 1991 WL 147482, at *1 96. 98. 99. 162 F.3d 975 (7th Cir. 1998). 100. (M.D. Fla. 1998) (“However, Defendant has not persuaded this Court that Plain- (M.D. Fla. 1998) (“However, Defendant assessment of damages. Therefore, this tiff’s settlement demand was an honest demand as evidence the amount in Court will not consider Plaintiff’s settlement Saunders v. Rider, 805 F. Supp. 17, controversy is satisfied.” (citations omitted)); of the defendants as to their esti- 19 (E.D. La. 1992) (“Plainly, the mere assertions can not [sic] satisfy a legal certainty mates of the value of the plaintiff’s claim determining whether the damages meet standard of proof [for purposes of § 1332’s monetary threshold].”); 179 (E.D. Pa. 1994). 430 de- settlement a plaintiff’s to use defendants by attempts jected NYUamount-in-controversy the required meeting for as a basis mand ANNUAL SURVEY OF § under 28 U.S.C. threshold AMERICAN 1332. LAW [Vol. 69:417 \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 14 28-OCT-14 9:30 complaint unequivocally stated that damages did not exceed stated that damages complaint unequivocally the plain- filed in a court of limited jurisdiction, $20,000 and was more than “postur- could not be considered any tiff’s demand letter for settlement seeking to stake out a position ing by counsel purposes.” the evidence that a district court might assign rily goes to the weight is relevant not whether such evidence of settlement negotiations, and should be considered. ment offer of $5,000 and the second plaintiff accepted a Rule 68 ment offer of $5,000 and the second plaint, the plaintiff presented a letter to the defendant stating that presented a letter to the defendant plaint, the plaintiff paid the not settle the case unless the defendant the plaintiff would plaintiff $300,000. an amount not to exceed $20,000. an amount not as truly reflective of the amount sought is particularly questionable amount sought of the as truly reflective exceed demands that make settlement some plaintiffs given that For example, in complaints. sought in their the amount Company Allstate Insurance at *3 (E.D. La. Oct. 18, 1995) (attaching “very little weight” to letters written as at *3 (E.D. La. Oct. 18, 1995) (attaching “very little weight” to letters written part of preliminary settlement discussions in a discussion of whether the monetary threshold required for diversity jurisdiction was met). are policy reasons why courts might choose to treat settlement de- are policy reasons why courts might amounts sought, even if it is clear mands as accurately reflecting the that they are exaggerated. In $150,000 to settle his claim and the other plaintiff demanded $150,000 to settle his claim and $30,000. 35568-nys_69-2 Sheet No. 41 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 41 35568-nys_69-2 35568-nys_69-2 Sheet No. 42 Side A 10/28/2014 12:36:12 105 106 On ap- 103 For better 108 408 advisory committee’s note; . While the case ultimately While VID 104 . R. E ED F The plaintiffs then sought attorneys’ sought then plaintiffs The The district court denied the attorneys’ the court denied district The 101 1. Settlements 102 16(a)(5); C. Policy Implications 109 . P. IV . R. C , 162 F.3d at 976–77. ED F Pennwalt Corp. v. Plough, Inc., 676 F.2d 77, 80 (3d Cir. 1982). Reichenbach v. Smith, 528 F.2d 1072, 1074 (5th Cir. 1976). at 976. The primary reasons for this policy are avoiding the ex- The primary reasons for this policy See See Id. Id. Id. Id. Fletcher Id. See 107 The most obvious policy implication of a rule regarding the The most obvious policy implication settlement of civil dis- Federal policy favors the voluntary 108. 109. 101. 102. 103. 104. 105. 106. 107. Zurich Am. Ins. Co. v. Watts Indus., Inc., 417 F.3d 682, 689 (7th Cir. 2005) (noting “that the law favors out-of-court settlements . . . ”). The Seventh Circuit further stated that this policy ensured that a further stated that this policy The Seventh Circuit and recovered the extent of his or her injury plaintiff who revealed who bluffs, a benefit compared with a plaintiff in full received promoting settle- of encouraging candor and which has the effect true value. the parties to agree on the suit’s ment by enabling negotiations when determining consideration of settlement fees calculated under the whether to adjust an award of attorneys’ effect on the parties’ willingness lodestar method is the rule’s likely negotiations. to engage in productive settlement putes. 2013] of $2,500. offer settlement NEGOTIATIONS SETTLEMENT OF EVIDENCE 431 \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 15 28-OCT-14 9:30 pense and delay of on-going litigation borne by the parties and the pense and delay of on-going litigation borne by the courts. burdens of adjudicating the issue hinged on whether the plaintiffs were prevailing parties, the Sev- the plaintiffs were prevailing hinged on whether plaintiffs’ changed the issues raised by the enth Circuit discussed could only rely on that the court ultimately positions, concluding they sought. demands as the amounts that the plaintiffs’ initial fees requests because it found that the plaintiffs were not prevailing were not that the plaintiffs because it found fees requests settlements. nuisance value had just received parties and fees as prevailing parties. as prevailing fees or worse, settlement is a necessary component of the litigation pro- or worse, settlement is a necessary judiciary has the capacity to cess, as it is unclear that the federal hear every case in full. peal, the plaintiffs did not seriously challenge the district court’s the district seriously challenge plaintiffs did not peal, the that effectively admitted settlements and of the characterization puffery. demands were their initial 35568-nys_69-2 Sheet No. 42 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 42 35568-nys_69-2 35568-nys_69-2 Sheet No. 42 Side B 10/28/2014 12:36:12 , 417 Zurich Am. Ins. Co. 112 113 408 advisory committee’s note; . On the other hand, the rule that permits district On the other hand, VID , 162 F.3d at 976. 111 , 417 F.3d at 689 (“In deciding whether Rule 408 should be . R. E ED And, thus, the First Circuit’s prohibition on Circuit’s prohibition thus, the First And, F McCown v. City of Fontana, 565 F.3d 1097, 1104 n.4 (9th Cir. 2009); 110 Cf. Fletcher Id. See See With that said, to the extent that such an approach resembles a With that said, to the extent that An approach that might strike a balance between these com- might strike a balance between An approach that It is generally accepted that ensuring the confidentiality of set- the confidentiality ensuring that accepted generally It is 111. 112. 113. 110. F.3d at 689 (noting that “allowing offers of compromise to be used as admissions of F.3d at 689 (noting that “allowing offers dispute resolution”). liability might chill voluntary efforts at Zurich Am. Ins. Co. the applied to exclude evidence, courts must consider the spirit and purpose of po- rule and decide whether the need for the settlement evidence outweighs the tentially chilling effect on future settlement negotiations.”). less formal variation of the Rule 68 mechanism for constraining less formal variation of the Rule to the role—ifcosts, it raises the question as any—that Rule 68 as to whether to consider should play in a court’s determination when considering whether to evidence of settlement negotiation adjust an attorneys’ fee award. peting concerns would be to allow district courts to consider only would be to allow district courts peting concerns concerns that offers. This would ameliorate rejected settlement if they knew the at making settlement demands plaintiffs might balk their recovery of use these demands to reduce district courts might settle and they the event that the case did not attorneys’ fees in also still encourage defendants to ultimately prevailed. But it would promote an honest dialogue in extend good -faith offers that would is no reason to assume that a pursuit of settlement in that there at minimum, establish a lower rejected settlement offer does not, of the value of his or her bound to the plaintiff’s true estimation is consistent with how courts claims. This type of flexible approach of evidence of settlement negoti- have approached the introduction ations in other contexts. 432 NYU to set- leads ultimately that candor promotes negotiations tlement ANNUAL SURVEY OFtlements. AMERICAN LAW [Vol. 69:417 \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 16 28-OCT-14 9:30 consideration of settlement demands and offers when determining demands and of settlement consideration under the fees calculated of attorneys’ to adjust an award whether because it settlements best promotes method arguably lodestar in ro- plaintiff to engage for the a potential disincentive removes bust discussions. courts to consider such evidence creates a strong incentive for such evidence creates a strong courts to consider in the litiga- about the true amount sought plaintiffs to be honest hasten settlement. tion, which might 35568-nys_69-2 Sheet No. 42 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 42 35568-nys_69-2 35568-nys_69-2 Sheet No. 43 Side A 10/28/2014 12:36:12 , 114 Diaz On the 115 117 The further can be under- 118 Diaz August v. Delta Air Lines, Inc., 600 F.2d 699, August v. Delta Air Lines, Inc., 600 F.2d see also 2. 68 Rule with Interactions 68; . P. Spooner v. EEN, Inc., 644 F.3d 62, 70–71 (1st Cir. 2011); IV , Caraballo Cordero v. Banco Financiero de Puerto Rico, 208 F. , Caraballo Cordero v. Banco Financiero But, as is described below, it is not clear that Rule 68 But, as is described below, it is Another difference is that a Rule 68 offer cannot be an is that a Rule 68 offer cannot Another difference see also . R. C Richardson v. Nat’l R.R. Passenger Corp., 49 F.3d 760, 765 (D.C. Cir. Richardson v. Nat’l R.R. Passenger Corp., ; 119 ED 116 See See, e.g. Id. F Accordingly, the First Circuit’s reasoning in Accordingly, the First Circuit’s reasoning Recall that, as part of its rationale for disapproving of the dis- of the rationale for disapproving as part of its Recall that, incentive rigid, Rule 68 articulates a formal While not entirely 116. 117. 118. 704 F.3d at 154. 119. 114. 704 F.3d 150, 154 (1st Cir. 2012). 115. 700 (7th Cir. 1979) (holding that an unreasonable Rule 68 offer does not mechan- 700 (7th Cir. 1979) (holding that an unreasonable ically result in the benefits of the rule). 1995) (“[A] Rule 68 offer is simply not revocable during the 10-day period . . . 1995) (“[A] Rule 68 offer is simply not of judgment under the Rule imposes cer- unlike a normal contract offer, an offer the plaintiff who declines the offer.”); tain consequences that can be costly for 1327, 1328 (S.D. Fla. 2000) (holding that Pope v. Lil Abner’s Corp., 92 F. Supp. 2d to accept an irrevocable offer” in the a “counteroffer does not terminate the power context of a Rule 68 offer). Supp. 2d 185, 191 (D.P.R. 2002); Cox v. Brookshire Grocery Co., 919 F.2d 354, 358 Supp. 2d 185, 191 (D.P.R. 2002); Cox v. Brookshire Grocery Co., 919 F.2d 354, (5th Cir. 1990). Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 341 & n.8 (1st Cir. 1997). stood as being driven by the principle that the defendant must be stood as being driven by the principle sweet of Rule 68. bound by both the bitter and the 2013] NEGOTIATIONS SETTLEMENT OF EVIDENCE in negotiations of the settlement consideration trict court’s 433 settlement of- against rejecting reasonable that cautions plaintiffs rejected settlement of costs incurred after a fers by barring recovery the plaintiffs the ultimate recovery and by making offer larger than costs incurred by the defendants. liable for the post-offer \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 17 28-OCT-14 9:30 offer to compromise but must be an offer of judgment. offer to compromise district courts from viewing casts such a long shadow that it prevents offers as warranting a re- evidence of rejected informal settlement duction in fees. the First Circuit distinguished informal offers from Rule 68 offers, offers from Rule informal Circuit distinguished the First defendant by which a a mechanism the rule provides noting that offer. settlement through a reasonable fees and costs can contain implication is that the First Circuit views the Rule 68 mechanisms as implication is that the First Circuit thus, its special status must be encouraging settlements and, honored. other side of the ledger, the structural costs of Rule 68 offers to the ledger, the structural costs of Rule other side of the settlement from those associated with informal defendants differ during the example, a Rule 68 offer is irrevocable negotiations. For to make coun- even as it permits the plaintiff statutory time period, teroffers. 35568-nys_69-2 Sheet No. 43 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 43 35568-nys_69-2 35568-nys_69-2 Sheet No. 43 Side B 10/28/2014 12:36:12 127 In The This 122 120 123 , the district Clark 126 In Sheppard. The Fourth Circuit then held 125 framework, to assess the degree of framework, to assess In a footnote, the Third Circuit dealt In a footnote, the , the district court denied the plaintiff’s 121 , the Fourth Circuit explained that Rule , the Fourth Circuit Farrar as controlling in 124 Sheppard , —to hold that “absent a Rule 68 offer of judgment, , the Third Circuit rejected the plaintiff’s argument the plaintiff’s rejected Third Circuit , the Clark at 168. at 168–69 n.4. at 422–23. at 424. Id. Id. Id. Id. Berkla v. Corel Corp. Lohman Clark v. Sims The Ninth Circuit’s precedent parallels that of the Fourth Cir- The Ninth Circuit’s precedent parallels In Likewise, in 120. 574 F.3d 163, 168 (3d Cir. 2009). 121. 122. 123. 88 F.3d 1332, 1337 (4th Cir. 1996). 124. 28 F.3d 420 (4th Cir. 1994). 125. 126. 127. 302 F.3d 909, 920–22 (9th Cir. 2002). cuit. In the Ninth Circuit agreed with Reversing the lower court’s decision, the precedent from other circuits—including the Fourth Circuit’s decision in 434 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:417 \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 18 28-OCT-14 9:30 cursorily with several cases involving Rule 68 arguments from other cases involving Rule 68 arguments cursorily with several grounds. to distinguish them on factual circuits, purporting that the district court erred because the settlement offer did not that the district court erred because 68 and, on remand, the district meet the requirements of Rule offer as a basis for limiting the court could not use the settlement of Rule 68. plaintiffs’ fees under the provisions motion for costs (not including fees, which were denied on state motion for costs (not including that the plaintiff had unnecessa- law grounds) based on its finding the defendant’s offer to set- rily extended the litigation by rejecting excess of the ultimate recovery. tle the case for an amount far in that the failure of the defendants to make a Rule 68 offer pre- 68 offer a Rule to make defendants of the the failure that settlement negotiations from considering district court cluded the in the matter. of success achieved the degree in determining court limited a prevailing party’s fee award to attorney hours ex- court limited a prevailing party’s offer that arguably exceeded pended before an informal settlement the amount ultimately recovered. made clear that the Fourth Circuit did not view an earlier Rule 68 the Fourth Circuit did not view made clear that case, Third Circuit stated that it failed to see how the existence of Rule how the existence it failed to see stated that Third Circuit ne- considering informal court from preclude a district 68 “should extent of determining the purpose of for the unrelated gotiations plaintiff.” relief sought by a Circuit—similarlyeffect, the Third the implications to how it treats of Rule 408—takes fees calcula- it as self-evident that the attorneys’ beast. tion is a different 68 did not carry a negative implication that extended to the district a negative implication that extended 68 did not carry the court’s ability, under success of the litigation as part of its fees determination. success of the litigation 35568-nys_69-2 Sheet No. 43 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 43 35568-nys_69-2 35568-nys_69-2 Sheet No. 44 Side A 10/28/2014 12:36:12 129 , 87 Jay 1561, . with EV specifically . U. L. R W Berkla N . , 102 Ingram , 111 F.3d 102, 105 (11th Cir. 1997) . , it is reasonable to assume that to assume , it is reasonable August v. Delta Air Lines, Inc., 600 F.2d The Ninth Circuit explained that Circuit explained The Ninth with “To Encourage Settlement”: Rule 68, Offers of Judg- “To Encourage Settlement”: Rule 68, Offers 128 Sheppard also applies in Additionally, the conventional view that Additionally, the Crutcher v. Joyce, 146 F.2d 518, 520–21 (10th Cir. 130 and and Jordan v. Time, Inc Sheppard and Clark Sharpe v. Cureton, 319 F.3d 259, 276 (6th Cir. 2003) (“Both the Sharpe v. Cureton, 319 F.3d 259, 276 (6th Robert G. Bone, 485, 485 (2010) (“Notwithstanding these facts, Rule 68 of the With these factors in mind, there is even less support With these factors . EV 131 at 922. , the Ninth Circuit did not discuss either Circuit did not , the Ninth Rule 68: The Settlement Promotion Tool that Has Not Promoted Settlements Rule 68: The Settlement Promotion Tool that Id. Id. Compare Compare Moreover, it is not clear that Rule 68 removed the district not clear that Rule 68 removed Moreover, it is . U. L. R 128. 129. 130. 131. Ingram ENV 1562 (2008) (explaining that the original drafters of the Federal Rules of Civil 1562 (2008) (explaining that the original judgment rule that existed in state codes” Procedure “simply adopted the offer of from the historical record, they were de- and “[i]nsofar as one can determine costs unfairly when the defendant of- signed to prevent plaintiffs from imposing from trial, and to enable defendants fered what the plaintiff was entitled to receive plaintiff persisted with the suit”), to avoid paying those costs when the Horowitz, Federal Rules of Civil Procedure, uniformly recognized as a rule whose sole pur- to pose is to serve the function of settlement promotion, refers on its face only costs and not to attorney’s fees [sic] Rule 68’s focus in this regard is counter- intuitive.”). D or Rule 68 generally but, given the precedent parallels with the parallels given the precedent 68 generally but, or Rule Fourth Circuit’s 2013] to be out that turns offer a settlement accept to failure a plaintiff’s NEGOTIATIONS SETTLEMENT OF EVIDENCE for basis a legitimate is not at trial recovered amount than the less an award of costs.” denying 435 In \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 19 28-OCT-14 9:30 for the First Circuit’s position that Rule 68’s existence implicitly position that Rule 68’s existence for the First Circuit’s settlement from presenting evidence of rejected bars a defendant plaintiff. of the success achieved by the offers as a gauge “[t]o hold otherwise would render Rule 68 largely meaningless.” render Rule otherwise would “[t]o hold has been purpose was to encourage settlements Rule 68’s original challenged. district court, as well as this Court, are without equitable discretion to alter the district court, as well as this Court, are effect of Rule 68.”), the reasoning in the reasoning in (“The language contained in Rule 68 is mandatory; the district court does not have (“The language contained in Rule 68 is the discretion to rule otherwise.”), 699, 701 (7th Cir. 1979), courts’ traditional equitable powers and discretion regarding fee equitable powers and discretion courts’ traditional offer greater than has rejected a settlement awards after a plaintiff the ultimate recovery. 1945) (illustrating the general principle that, under the equitable powers of the 1945) (illustrating the general principle costs after refusing an offer of settlement court, a prevailing party could be denied recovery). larger than the prevailing party’s ultimate ment, and the History of the Federal Rules of Civil Procedure ment, and the History of the Federal Rules of 35568-nys_69-2 Sheet No. 44 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 44 35568-nys_69-2 35568-nys_69-2 Sheet No. 44 Side B 10/28/2014 12:36:12 , the Diaz is the only one to Diaz The district court ex- The district court 133 the district court’s ultimate decision to the district court’s ultimate decision Unethical Lawyers Unethical 135 In the lower court proceedings in lower court proceedings In the 137 136 132 While, in its next breath, the district court stated While, in its next 134 , the First Circuit identified the district court’s dis- the district Circuit identified , the First , 704 F.3d at 154. Roadway Express Inc. v. Piper, 447 U.S. 752, 767 (1980). Id. Id. Diaz See Diaz Of the six federal appellate cases addressing whether a district Of the six federal appellate cases In is consistent with the general principle that the judiciary may is consistent with the general principle 3. Policing Role in Judiciary’s and the Conflicts Attorney-Client 132. 704 F.3d 150, 153 (1st Cir. 2012). 133. 822 F. Supp. 2d 74, 82 (D. Mass. 2011). 134. 135. 136. 137. explicitly address the agency issues about which a district court explicitly address the agency issues proceed to trial after a substantial might worry as it observes a case The First Circuit’s approach in settlement offer has been made. Diaz of misconduct after a pro- not apply sanctions without a finding an opportunity to present ceeding that gives the alleged wrongdoer his or her defense. court may consider evidence of settlement negotiations in its deter- court may consider evidence of settlement opinion in mination of attorneys’ fees, the 436 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:417 for the the incentives concern regarding but apparent, avowed, reasonable to reject a the plaintiff counsel to encourage plaintiff’s offer. settlement \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 20 28-OCT-14 9:30 that it “expresses no opinion on the interactions . . . between” the no opinion on the interactions that it “expresses lawyer and the plaintiff, reveals its overriding appre- consider the settlement negotiations incentives for attorneys to prolong hension regarding the structural First Circuit rejected the district litigation in certain cases. The the evidence of the re- court’s concern as a basis for considering to proceed to trial creates un- jected offer, noting that the decision result in no fee recovery and certainty because a failed suit might the plaintiff make the ultimate set- professional ethics dictates that tlement decision. plaintiff’s counsel would have received approximately $25,000 if the would have received approximately plaintiff’s counsel offer of $75,000, the defendant’s settlement plaintiff had accepted more than that the attorney stood to make much but after the trial received only $7,650. while the plaintiff plained that this situation—inplained that this had a strong fi- which the attorney the low value to encourage her client to take nancial incentive of settling—hadclaim to trial instead effect of dis- the “perverse the end result is settlement of disputes, and couraging the private the litigants to of the benefits of litigation from yet more transfer the lawyers.” 35568-nys_69-2 Sheet No. 44 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 44 35568-nys_69-2 35568-nys_69-2 Sheet No. 45 Side A 10/28/2014 12:36:12 is L. 144 139 140 , 77 Diaz Resolving OFSTRA 32 H , The Judge’s Ethical Judicial Attitudes Toward 89, 92–97 (1989). . , Canon 3(B)(5). EV UDGES J . L. R LL TATES U. I S Judicial Reporting of Lawyer Misconduct NITED , 1989 U 142 ABA Regulation of Contingency Fees: Money Talks, Eth- ABA Regulation of Contingency Fees: Money 247, 284–87 Deborah R. Hensler, (1996); . Additionally, a lawyer might refuse to ad- Additionally, a EV note 143, at 1439–40. 141 751, 779–80 (1997). note 138, at 286. . note 138, at 95. EV Federal judges have an ethical obligation to take Federal judges have an ethical obligation Illustrating this, a 1989 empirical study found empirical study this, a 1989 Illustrating L. R supra supra More generally, judges often are reluctant to pur- More generally, judges often are ONDUCT FOR 143 138 supra C L. R 145 537 (2009); Judith A. McMorrow et al., 537 (2009); Judith A. McMorrow et al., . ORDHAM F Arthur F. Greenbaum, Lester Brickman, EV ODE OF OFSTRA Id. Id. See C See H , 65 Furthermore, the First Circuit’s implicit reliance on the profes- First Circuit’s implicit reliance Furthermore, the The main problem with the First Circuit’s approach in approach First Circuit’s the with main problem The , 25 139. Hensler, 140. Brickman, 141. 142. 143. 145. McMorrow, 144. 138. 1425, 1428, 1439–40, 1447 (2004); Leslie W. Abramson, . EV not clients—often settle- a case, including the course of control R Mass Toxic Torts: Myths and Realities Confronting Attorney Misconduct: A View from the Reported Decisions Confronting Attorney Misconduct: A View UMKC L. R But scholars have noted that federal courts often focus only on at- But scholars have noted that federal the judicial system because the torney misconduct that impacts responsible for overseeing the le- judges do not view themselves as gal profession. it might embarrass the attorney, sue potential misconduct because judge within the legal com- harm the reputation of the reporting that the judge is a snitch, or re- munity by creating the impression ics Walks Also, the lawyer might implicitly communicate that, if a client does might implicitly communicate that, Also, the lawyer might not persist a settlement offer, the lawyer not choose to accept zeal. with the utmost given the typical reluctance of sional conduct rules is unpersuasive and police potential attor- federal courts to proactively investigate ney misconduct. 2013] NEGOTIATIONS SETTLEMENT OF EVIDENCE relationship attorney-client the usual of the realities it ignores that dictating ethics rules the professional Notwithstanding dynamic. lawyers— decision, ultimate settlement plaintiff make the that the 437 ment decisions. had “a stated that they polled litigants percent of the that fifty-six were handled. control over how their cases little” or “not much” a lawyer might ex- different ways by which Scholars have suggested suggested that an a case. For example, it has been ert control over attorney’s exper- the client’s reliance on the attorney might exploit of an award. possible amount and certainty tise regarding the \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 21 28-OCT-14 9:30 appropriate action if they have information that suggests a lawyer appropriate action if they have rules of professional conduct. might have violated the applicable vance expert witness fees. vance expert witness Duty to Report Misconduct by Other Judges and Lawyers and Its Effect on Judicial Indepen- dence 35568-nys_69-2 Sheet No. 45 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 45 35568-nys_69-2 35568-nys_69-2 Sheet No. 45 Side B 10/28/2014 12:36:12 , Diaz Rule 11 and the Pro- note 143, at 779–80. supra Georgene Vairo, 545; III. note 143, at RECOMMENDATION 589, 595 (1998); Abramson, . EV supra L. R 146 ORDHAM F , 67 It is possible that, in permitting consideration of evidence of of evidence consideration that, in permitting It is possible As it stands, there are issues with both sides of the circuit split are issues with both sides of the As it stands, there consideration of the evi- The majority rule, which permits as discussed in the preced- In addition to the evidentiary issues, 146. Greenbaum, fession 438 other or reelection bar for the from support in lessened sult NYUappointments. ANNUAL SURVEY OF AMERICAN LAW a concern influenced by the other circuits, negotiations, settlement [Vol. 69:417 in the district court those voiced by issues like with agency lawyers at discouraging rule aimed a prophylactic promulgated of ac- in the hopes against settlement their clients from counseling obtuse be- fees. But this approach is unnecessarily cruing additional consideration of a broad rule regarding the cause it creates simply proactively negotiations instead of evidence of settlement exist between a the agency issues that might and directly addressing party and its counsel. \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 22 28-OCT-14 9:30 over whether a district court may consider evidence of settlement district court may consider evidence over whether a to adjust an award of attor- negotiations when deciding whether lodestar method. neys’ fees calculated under the rationale for ignoring Federal dence, does not provide a convincing bars such evidence from be- Rule of Evidence 408, which generally case. Rule 408 sets up a quandary ing used to assess the merits of a is used to assess the merits of for the majority rule: if the evidence if the evidence does not go to the the case, it is inadmissible, but is not truly probative of the parties’ merits of the case, it presumably truly shed light on the degree of valuations and therefore cannot majority rule potentially creates success achieved. Moreover, the to engage in robust negotiations, disincentives for the plaintiffs Rule 408 and a wide body of which undercuts the policy behind case law. creates a broad rule that appears ing section, the majority approach issues between lawyers and clients. rooted in concerns about agency because district courts, if faced Such a broad rule is unnecessary issues appear to exist, can directly with a situation in which agency referrals to the state bar, refer- address such issues either through order to show cause that gives the rals to a settlement judge, or an lawyers the opportunity to address the issue before the district court itself. 35568-nys_69-2 Sheet No. 45 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 45 35568-nys_69-2 35568-nys_69-2 Sheet No. 46 Side A 10/28/2014 12:36:12 CONCLUSION On the other hand, the minority rule ignores the practical real- the practical ignores rule minority hand, the other On the consideration improved by allowing rule can be The majority arguments favor permit- In sum, the stronger legal and policy 2013] NEGOTIATIONS SETTLEMENT OF EVIDENCE have might and decisions settlement control often attorneys ity that clients. differ from their incentives that financial 439 to Federal hews closely only, which settlement offers of rejected its pur- undercutting 68 without materially Civil Procedure Rule of inference offer, the logical a settlement a party rejects pose. When than the offer. values his or her case more highly is that the party which might be affirmative extension of an offer, This is unlike the than providing a anchoring the negotiations more geared towards Additionally, to party’s true valuation of the case. window into the roles in settle- are concerns about the lawyers’ the extent that there the issue di- the district courts should address ment negotiations, to state bar monetary sanctions or referrals rectly, using either misconduct. This procedurally sound finding of agencies upon a appear to provide the fore the agency issues that would bring to for the majority rule. part of the rationale a plaintiff’s settlement demand or ting a district court to consider offer that is greater than the rejection of a substantial settlement whether to adjust an award ultimate relief achieved when deciding the lodestar method as part of of attorneys’ fees calculated under of success obtained. But this the court’s assessment of the degree allowing consideration of rejected majority rule can be improved by the First Circuit is wise to ex- settlement offers only. Finally, while agency issues at play, it appears plicitly address the attorney-client attorneys often control settle- to ignore the practical reality that incentives that differ from ment decisions and might have financial not lead courts to try to exert their clients. And, though this should through adjustments to re- backchannel control over such attorneys point to remember and sug- quested fee awards, it is an important away from directly addressing such gests that courts should not shy and disciplinary actions. issues as they arise with formal fact-finding \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 23 28-OCT-14 9:30 35568-nys_69-2 Sheet No. 46 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 46 35568-nys_69-2 35568-nys_69-2 Sheet No. 46 Side B 10/28/2014 12:36:12 440 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:417 \\jciprod01\productn\N\NYS\69-2\NYS202.txt unknown Seq: 24 28-OCT-14 9:30 35568-nys_69-2 Sheet No. 46 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 46 35568-nys_69-2 35568-nys_69-2 Sheet No. 47 Side A 10/28/2014 12:36:12 R R R R R R R R .... 454 ...... 454 ...... 446 ...... 455 ...... 448 ...... 451 441 ...... 446 CATHREN KOEHLERT-PAGE* IN LEGAL NARRATIVES IN LEGAL ...... 442 Generally Objective Correlative Objective Correlative 1. Emotion-Signifying Words A LOOK INSIDE THE BUTLER’S THE INSIDE A LOOK A. Correlative Compared to Symbols Objective B. Compared and Contrasted to Metaphors C. to Objects Compared and Contrasted Endowed A. Overlapping Benefits of Objective Correlative REVEALS INTERNAL STATE OF MIND STATE INTERNAL REVEALS I. Objective Correlative Understanding *June 9, This Article is dedicated to my mother, Paulette Rudat Oxner, II. Correlative Reasons for Using Objective CUPBOARD: HOW THE EXTERNAL WORLD THE EXTERNAL HOW CUPBOARD: 1940–April She instilled a love of reading and writing in me and taught 24, 2013. verbs, to write short sentences with fewer me to edit my work, to use strong action at a time during overwhelming tasks. clauses, and to work just one sentence her support and encouragement; to Dean Thanks to Dean Leticia Diaz for all of Louis Rosen, and Librarian Betty Phill Johnson, Librarian Pat Brown, Librarian Professor Tim Wynne-Jones for his lecture Vickers for their research assistance; to references; to writer Sharry Wright for on objective correlative and for his research to Steve Johansen and David Thomson use of her essay on objective correlative; to express it; to Benjamin Opipari for his who first heard my idea and helped me Kenneth Chestek, Terri LeClerqc, Steve thoughts on objective correlative; to Ralph Brill, Mary Alegro, Bruce Ching, Bailey, Jennifer Romig, Robert Sachs, Pocock, Victoria Moshiashwili, and Ruth Mitch Nathanson, Susan Liemer, Sharon to Rita Barnett, Linda Berger, and Anne Robbins for their advice on self-quoting; at the LWI Scholars Institute; to Kathleen Dillon Narko for their critiques Elizabeth Keith, and Catherine Finn for Professors Terry Phelps, Christy DeSantis, Writing Conference Scholars’ Workshop; their comments at the Capital Area Legal scholarship; to Karin Mika for being a to Lou Sirico for all of his advice on professors; to Jay Messenger and Joan continual source of support to legal writing to explore some of the ideas in this Article; Malmud Rocklin for providing a forum for all of their help with brainstorming; to Jamila Jefferson-Jones and Neelum Arya my to architect Jacob Estes for sources on neuroscience and architecture; and to research assistants, Angela Goodrum, Chris Cronin, John Gallagher, Caitlin Ehinger, Patrice Robinson, Chris Seckinger, Jonathan Sampas, Shanna-Kay Turner, and Patrick Shea who fulfilled so many unusual research requests so well; and to Kyle Beatty for mooting a discussion on this topic. \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 1 28-OCT-14 9:35 Introduction 35568-nys_69-2 Sheet No. 47 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 47 35568-nys_69-2 35568-nys_69-2 Sheet No. 47 Side B 10/28/2014 12:36:12 R R R R R R R R R R R R R R R R R R R R R R R R R R R R R .... 472 ..... 481 ...... 465 think about it, 1 ...... 464 ...... 497 ...... 479 not ...... 487 ...... 475 ...... 456 ...... 470 ...... 468 ...... 472 ...... 461 ...... 465 ...... 487 ...... 469 ...... 482 ...... 463 158–59 (2005)...... 455 ...... 457 ...... 461 ...... 479 ...... 488 ...... 478 INTRODUCTION ...... 472 NEXCUSABLE , I a. Graceful Weaving b. Perspective and Voice c. Detail d. Naturally Coherent Details a. Fiction b...... Law 456 a. Fiction b...... Law 460 a. Fiction b...... Law 462 YNCH ...... 501 Narratives 2. Argument 1. In Discovery and Litigation 2. In Writing 1. Seamless Weaving 2. Voice Perspective and 3. Touches of Detail 4. Details Naturally Coherent 1.Testimony In the Statement of Facts and 2. Events Emotion-Conveying 3. and Plot Character L HRIS A. The Writer’s Process B. The Lawyer’s Process A. Objective Correlative in Fiction Effective B.Objective Correlative in Legal Effective B. Legal Relevance C 1. V. Accuracy Ethical Concerns Regarding IV. Objective Correlative The Process of Developing III.of Effective Objective Correlative Traits which is a problem sometimes. And it felt all right. which is a problem sometimes. And Quietly, easily, I went to the edge of the bed and climbed my way into the space like a cat. Like a pet cat just coming up to get some warmth and not disturbing anybody. “Gigi, I want to come over,” I said, and she didn’t say yes or no. “Gigi, I want to come over,” I said, Gigi Bodakian and the I looked over at her. The space between huddled up on the edge of wall was plenty of space. She was than enough room for me. It the bed and so there was more it—Iseemed all right. I thought about did Conclusion 442 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:441 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 2 28-OCT-14 9:35 35568-nys_69-2 Sheet No. 47 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 47 35568-nys_69-2 35568-nys_69-2 Sheet No. 48 Side A 10/28/2014 12:36:12 12 XFORD Guilt, O 14 The line that , Keir Sarafin’s , Keir He climbs into 11 Although these 9 This concept is This concept 8 2 Gigi is huddled up on Gigi is huddled 7 Inexcusable (2009) [hereinafter The space is the right size The space 4 ERMS These characterizations suggest These characterizations T 10 ITERARY See generally id. L To Keir, the space is an invitation to climb the space is an To Keir, 3 text accompanying note 6. note 1, at 159–60 that Keir kisses her so hard that (stating note 1, at 158–59. ICTIONARY OF note 4. supra 13 , D supra see also supra at 158–59. at 159–60. There are references to Keir’s drug use and instances of unreliable , Since the passage is written in close, third-person perspective with Since the passage is written in close, third-person ; ]. YNCH : the space is between Gigi and the wall, rather than be- Gigi and the wall, rather : the space is between 5 L XFORD 6 YNCH See supra See id. See id. See id. See id. See id. See id. See id. See id. See id. O L Nonetheless, his guilt is not the obvious guilt of one who takes Nonetheless, his guilt is not the In the excerpt above from the novel novel from the above excerpt In the through the the rape that follows still seeps Yet Keir’s guilt for 10. 11. 5. 6. 7. 8. 9. 12. 13. 14. 4. 2. 3. ICTIONARY respect to Keir, a character in denial, the reader must read between the lines of respect to Keir, a character in denial, the the entire book to see that Gigi’s accusa- Keir’s unreliable narration throughout tion is likely true. he is hurt and he holds her hands tightly). narration throughout the book. D In the pages that follow, this motive is belied by Keir’s hard and In the pages that follow, this motive hurtful kisses. who is full of self-denial. ownership; it is that of a drug user 2013]BUTLER’S CUPBOARD INSIDE THE LOOK A 443 passage \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 3 28-OCT-14 9:35 into bed with the object of his obsession. with the object into bed the open edge of the bed; tween Gigi and follows the above-quoted excerpt is particularly telling. Keir bela- excerpt is particularly follows the above-quoted manner and provides a false bors the cat analogy in a defensive coming up to get some warmth.” motive for his actions: he is “just known as an objective correlative, an external representation of an representation an external an objective correlative, known as state of mind. internal for him. the edge of the bed as though to block ingress. the edge of the other facts suggest allow for other interpretations, facts alone might Keir is aware of a prohibition. that on some level love, hate, happiness—thesecategories do not always capture broad furtiveness. If Keir’s only motive is to not disturb Gigi’s sleep, then only motive is to not disturb furtiveness. If Keir’s her in the passages that follow. he would not kiss the bed “quietly” and “like a cat.” the bed “quietly” reaction to and interaction with the empty space on the bed con- the bed space on empty with the interaction to and reaction readers. of mind to the complex state veys his 35568-nys_69-2 Sheet No. 48 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 48 35568-nys_69-2 35568-nys_69-2 Sheet No. 48 Side B 10/28/2014 12:36:12 O- P with 103 (ex- SSAYS ON , E OVELIST OOD N W ACRED S ENTIMENTAL HE S T 16 in , As novelist and writing profes- 19 ¨ IVE AND In so doing, the writer will flesh A 20 N HE T emotion; such that when the external emotion; such that Professor Wynne-Jones explains, “A set- Professor Wynne-Jones explains, , note 15. 21 note 15. This objective correlative conveys a charac- This objective correlative conveys AMUK supra 17 P supra particular Hamlet and His Problems note 15 (explaining how much is revealed about a character RHAN 95, 100–03 & Co. Ltd. 1950). (Methuen , O note 19. Instead the character’s view of the external setting Instead the character’s view of LIOT supra 18 This symbolic subtext in the unfolding speaks to the This symbolic subtext in the unfolding Wynne-Jones, RITICISM 22 ETRY AND C See See supra Id. See id. Compare T.S. E 15 The temperature of the air; the objects in the room or on the of the air; the objects in the room The temperature Attorneys seeking to establish state of mind, convey mental dis- convey mental state of mind, seeking to establish Attorneys 20. 21. 22. 17. Wynne-Jones, 18. 19. 15. College of Fine Arts, Summer 2006 Tim Wynne-Jones, Professor, Vermont 16. The only way of expressing emotion in the form of art is by expressing emotion in the form The only way of words, a set of correlative” [sic]; in other finding an “objective shall be the a chain of events, which objects, a situation, formula of that facts, which must terminate in sensory experience, are given, terminate in sensory experience, facts, which must evoked. the emotion is immediately through objective correlative). plaining that objective correlative is seen through the character’s eyes), plaining that objective correlative is Wynne-Jones, MFA WYCA Residency Lecture: Tell It Slant (Summer 2006) (on file with author) MFA WYCA Residency Lecture: Tell It Slant capture emotional “quicksilver” the way (explaining that words like “love” do not that objective correlative does). reveals the internal state of mind. landscape; the color, feel, and smell of everything; and the charac- landscape; the color, feel, and smell things and one another reveal ters’ interactions with all of these psychological states. 444 correlative objective that manner in the quicksilver emotional NYUdoes. ANNUAL SURVEY OF AMERICAN LAWthe empty the record for should examine evoke emotion tress, or [Vol. 69:441 and the happenings of butlers’ pantries, beds, the insides spaces on con- discover the literary There, they will train stations. in Russian pro- can use to include which attorneys correlative, cept of objective emotional and that may also form an bative scenic evidence his essay on Ham- for the case. T.S. Eliot in psychological backdrop correlative as follows: let defines objective \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 4 28-OCT-14 9:35 ting is . . . not just where a scene unfolds. It is part of the un- ting is . . . not just where a scene folding.” ter’s psychological world without explicitly naming or describing ter’s psychological world without that world. out much of the setting. sor Tim Wynne-Jones instructs, “Don’t look at that boy in love. sor Tim Wynne-Jones instructs, Look at what he is looking at.” 35568-nys_69-2 Sheet No. 48 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 48 35568-nys_69-2 35568-nys_69-2 Sheet No. 49 Side A 10/28/2014 12:36:12 , 23 14 , , 50 UNG For RT OF J OETRY 25 A P AMPBELL HE C T , ORTABLE P ee also Rather it is a Rather HE 47, 59–64 (2013) RACTICE OF In fact, when a 24 ARDNER T P 27 in G TORY S S ’ OHN J . 745, 748 (1992) (reviewing cf. (1919), EV LIENT AW AND THE C : L . L. R OUR ASE Y C , ARV . H ] (discussing how certain archetypal images ] (discussing how certain archetypal 18–19 (1972); TEVENS S note 15. , 105 ACES F Similarly, in a case involving child neglect, Similarly, in a case OBBINS ET AL supra 26 ALLACE R Instinct and the Unconscious , W NNE HOUSAND HE UNG T A T J , , Tolbert v. Tolbert, 903 So. 2d 103, 105 (Ala. 2004) (considering , Tolbert v. Tolbert, 903 So. 2d 103, 105 , State v. Small, 100 So. 3d 797, 804 (La. 2012) (finding that leav- , State v. Small, 100 So. 3d 797, 804 (La. The Lady, or the Tiger? A Field Guide to Metaphor and Narrative The Lady, or the Tiger? A Field Guide to 87, 94, 100, 105 (2008) (encouraging attorneys to seek out physical 87, 94, 100, 105 (2008) (encouraging attorneys 275, 277 (2011) (discussing how story and metaphor have played a 275, 277 (2011) (discussing how story and UTH ARL REY R C Wynne-Jones, L.J. (Joseph Campbell ed., R.F.C. Hull trans., Viking Press, Inc. 1971) [here- (Joseph Campbell ed., R.F.C. Hull trans., RITING See, e.g. See, e.g. See See Cf. C. G Instinct and the Unconscious 30–31 how narrative invokes a dream for the reader); (1991) (discussing 58 ERO WITH A W By studying the scene through the eyes of the client and the of the client and the eyes the scene through By studying 26. 27. 23. 24. 25. J.L.B., 349 S.W.3d 836, 847 (Tex. App. 2011) (referencing an odor as support H ASHBURN HOMAS HE EGAL ICTION (explaining that the details selected can create a vivid picture and explaining that (explaining that the details selected can relevant facts); James Parry Eyster, investigation of details is necessary to determine and Obtuse Objects to Enhance Advocacy Lawyer as Artist: Using Significant Moments details). crash); Catt v. Bd. of Comm’rs, 779 N.E.2d rain slick in determining liability for car in determining county’s liability for car 1, 2 (Ind. 2002) (considering rainstorm S.W.2d 808, 810 (Tenn. App. 1997) (con- wreck); Hutton v. City of Savannah, 968 liability for car accident). sidering cloudy and rainy weather in determining speak to the unconscious mind and are somewhat universal); s speak to the unconscious mind and are role in thinking, persuasion, and reasoning since Aristotle); Steven L. Winter, role in thinking, persuasion, and reasoning Death is the Mother of Metaphor ing children alone around household poisons could constitute criminal neglect); In re for endangerment grounds for termination of parental rights); Jones v. Common- wealth, 636 S.E.2d 403, 406 (Va. 2006) (finding that leaving medicine bottles with heroin in child’s reach was sufficient evidence of felony neglect); State v. Watson, inafter Linda Berger, W T with respect to legal endeavors (1991) (explaining that our mind is as metaphoric as it is with everything)). L 47, 55– T F 2013] response. emotional an and evokes mind subconscious reader’s BUTLER’S CUPBOARD INSIDE THE LOOK A Professor nature, a symbolic have does subtext this Although a device. it is not just explains that Wynne-Jones 445 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 5 28-OCT-14 9:35 the smell of a home, the weather, the child’s clothes, and any deb- the weather, the child’s clothes, the smell of a home, can all be rele- on the floor and counter-tops ris, pills, and poisons the parent neglected the child. vant as to whether natural way of reproducing a person’s psychological state; it emu- state; a person’s psychological way of reproducing natural experience emotions. people actually manner in which lates the sub- this psychological not only evoke the attorney can witnesses, into the state- weave relevant and probative details text, but can also at trial. the argument and elicit such detail ment of facts and instance, in a case involving a car accident, the weather, the temper- involving a car accident, the weather, instance, in a case the color of the day, the traffic on the road, and ature, the time of the degree that a lights can be relevant as to cars, signs, and traffic driver was negligent. 35568-nys_69-2 Sheet No. 49 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 49 35568-nys_69-2 35568-nys_69-2 Sheet No. 49 Side B 10/28/2014 12:36:12 is symbolic of an emo- 32 the characters’ reaction to those I. note 3. The skilled writer might include 30 28 supra J.A.S., 627 N.E.2d 770 (Ill. App. Ct. 1994) (con- J.A.S., 627 N.E.2d 770 (Ill. App. Ct. 1994) note 16. , In re At first blush, some might say that the “set At first blush, some might say that note 15. supra 31 , note 16. ICTIONARY supra LIOT E D supra , XFORD LIOT O E UNDERSTANDING OBJECTIVE CORRELATIVE UNDERSTANDING Although the Oxford Dictionary of Literary Terms explains Although the Oxford Dictionary A. Generally Objective Correlative Compared to Symbols See See generally id. See See generally 29 Eliot indicates that emotion is evoked by the “set of objects, emotion is evoked by the “set Eliot indicates that Professor Wynne-Jones illustrates that objective correlative Professor Wynne-Jones illustrates This Article will present the literary concept of objective correl- the literary concept will present This Article 31. Wynne-Jones, 32. 30. 29. 28. some internal sensations and perceptions as part of objective correlative as well. situation, or chain of events” that “terminate[s] in a sensory experi- situation, or chain of events” that ence.” transcends symbolism. sidering debris littering the home in upholding finding of neglect). sidering debris littering the home in upholding 751 A.2d 1004, 1007 (Me. 2000) (leaving a “lightly clad” child in the car on a cold 751 A.2d 1004, 1007 (Me. 2000) (leaving Hunte v. Blumenthal, 680 winter day could be considered child endangerment); provisions regarding keeping poisons away A.2d 1231, 1239 (Conn. 1996) (reciting from children in foster care); 446 stan- the legal analysis, circumstances” of the a “totality involves case NYU of very “chain of that for a detailing to call seems actually dard ANNUAL SURVEY OF which Eliot refers. events” to AMERICAN LAW [Vol. 69:441 narra- be applied to legal concept can explain how the ative and briefs, fiction, appellate from works of examples tives, providing correla- defines objective I of this Article transcripts. Part and trial II explains why it from related concepts. Part tive and distinguishes the characteristics is useful. Part III illustrates objective correlative and in legal narra- done well in both fiction of objective correlative objective correla- the process for developing tives. Part IV describes Part V discusses narratives and legal narratives. tive in both fiction in legal narratives. regarding objective correlative the ethical issues \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 6 28-OCT-14 9:35 that objective correlative means using external surroundings and that objective correlative means events to reveal internal states, of objective correlative. While external surroundings is also a part other literary tropes such as sym- this concept may seem similar to there are important differ- bols, metaphors, and endowed objects, explores the distinctions among ences among them. This Section understanding of objective these concepts to provide a nuanced correlative. of objects, situation, or chain of events” of objects, situation, or chain of 35568-nys_69-2 Sheet No. 49 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 49 35568-nys_69-2 35568-nys_69-2 Sheet No. 50 Side A 10/28/2014 12:36:12 36 C.J.G. HEORY in T stands for X ITERARY L , “If I wanted to . Tolstoy seemed X defines a symbol as a symbol defines is X ERMS AND T It is not meant to merely 40 Anna Karenina ITERARY L As Professor Wynne-Jones explains, Wynne-Jones As Professor If Mirabelle loves her button collec- loves her button If Mirabelle Penguin Reference Penguin 34 35 Most people do not spend their days Most people do not spend their 41–42 (1993). note 15 (explaining that objective correlative is note 15 (explaining that objective correlative 39 note 15. note 15. supra supra ICTIONARY OF OMPANION supra , D C it cannot be too neatly collapsed into “ it cannot be too neatly collapsed 37 UDDON However, objective correlative is a way of showing a is a way objective correlative However, (discussing Mirabelle’s love of her button collection). (discussing Mirabelle’s love of her button 33 ARENINA Wynne-Jones, Wynne-Jones, . Letter from Leo Tolstoy to N.N. Strakhov (Apr. 23, 1876), A K Id. J.A. C See Id. See id. Cf. Cf 38 , (Penguin Reference) (defining “symbol”). is just a summary or a broad category. is just a summary or a broad category. Objective correlative is not just a device but is actually how peo- Objective correlative is not just a 40. 39. Wynne-Jones, 34. 33. 36. 35. 37. 38. Y .” URNER T more specific psychological state rather than generally symbolizing state rather psychological more specific with a single word. that state ple experience emotions. 884–88 This shared word “love” does not capture how Juanita feels. If the “love” does not capture how Juanita This shared word all afternoon giddy moment as Juanita spends writer details each cookies, then the her boyfriend’s favorite baking and decorating adolescent love. Juanita’s particular reader might understand Honaria’s first still be different in some ways from Juanita’s love will is the actual Since objective correlative love and from Ricardo’s. and psycho- people can experience their emotions means by which logical states, 2013] state. or psychological tional BUTLER’S CUPBOARD INSIDE THE LOOK A some- that represents concept or a an image, gesture, a an object, thing else. 447 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 7 28-OCT-14 9:35 analyzing their emotions and thinking, “I am bored now. Now I feel analyzing their emotions and thinking, a flatline feeling.” Instead, people boredom mixed with apathy. It is with little awareness as to their react to their surroundings, often Objective correlative is a more own current emotional state. of a character than a simple nuanced way to illustrate the emotions emotion-signifying word like “anger.” Y of to hint at this idea when he said, to express by the novel, then I express in words all that I meant novel as I have written all over should have to write the same again.” tion, the odds are that she does not feel the same way about her that she does not feel the same tion, the odds are as Juanita feels as Mother feels about her child, button collection about Jesus. or as Mother Teresa feels about her first boyfriend, words like “love” and “hate” do not capture all of the nuances of a all of the nuances do not capture “love” and “hate” words like love or hate feeling. specific not a device). 35568-nys_69-2 Sheet No. 50 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 50 35568-nys_69-2 35568-nys_69-2 Sheet No. 50 Side B 10/28/2014 12:36:12 UD- C it is How- It is a 42 43 with 47 note 33 (defin- supra , If done well, objec- In contrast, in the In contrast, in 48 45 Indeed, just as objec- Of Metaphor, Metonymy, and 46 UDDON For instance, the scene C 50 49 with Linda Berger, note 15 (discussing the concept of objective For example, a metal scale may be a For example, a , the scene is more than just an empty , the scene is more 44 see also note 15 (explaining that objective correlative is supra note 15 (describing objective correlative and pro- note 15 (describing objective correlative note 16 (describing objective correlative and pro- note 16 (describing objective correlative (defining “symbol”). supra 949, 952–53(providing a similar definition for (2007) supra . supra note 16. , EV note 33; 884–88 Inexcusable LIOT (discussing the concept of objective correlative), (discussing the concept of objective supra L. R E supra , note 45. note 46. 41 , Wynne-Jones, LIOT ERCER E Wynne-Jones, Wynne-Jones, M note 33, at UDDON DON Cf. See supra See id. See supra See Compare See C See id. Compare id. , 58 Nonetheless, when a metaphor infuses the entire scene, then it Nonetheless, when a metaphor infuses Although objective correlative has metaphoric aspects, has metaphoric objective correlative Although supra B. Correlative Contrasted to Objective Compared and Metaphors 47. 48. 50. 49. 43. 44. 46. 45. 41. 42. , ing “metaphor”). not a device). “metaphor”). viding examples). Corporate Money: Rhetorical Choices in Supreme Court Decisions of Campaign Finance Reg- Corporate Money: Rhetorical Choices in Supreme ulation correlative and illustrating all of its nuances), correlative and illustrating all of its nuances), viding examples); can overlap with an objective correlative. 448 emotion well evokes done correlative objective emotion; exemplify NYU reader. in the ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:441 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 8 28-OCT-14 9:35 metaphor for justice, but it is not an objective correlative because it but it is not an objective correlative metaphor for justice, rather than a set of objects. is a single item tive correlative transcends symbol, it transcends metaphor. tive correlative transcends symbol, tive correlative should evoke a feeling. ever, objective correlative is more elaborate than a single-item meta- is more elaborate than ever, objective correlative there is a “set” of definition implies a collection; phor in that the of events. objects or “chain” psychological state as opposed means of showing someone’s actual word. Finally, objective correla- to collapsing that state into a single a feeling. tive is not meant merely to represent scene above from scene above from more intricate and elusive, and, in some instances, it is a better re- instances, it is a and, in some and elusive, more intricate is “a figure of actual emotional state. A metaphor production of an another.” one thing is described in terms of speech in which space on the bed symbolizing Keir’s state of mind. There is an en- symbolizing Keir’s state of mind. space on the bed reacts to the space surrounding the space; Keir tire chain of events correlative is and externally. Moreover, objective both internally metaphor; it will include some more nuanced than the ordinary metaphor. realistic details beyond the basic 35568-nys_69-2 Sheet No. 50 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 50 35568-nys_69-2 35568-nys_69-2 Sheet No. 51 Side A 10/28/2014 12:36:12 . , EB N note note note AMUK The P 57 , 93 She has supra supra supra , , , 52 However, The young 814 (Joel Car- 56 59 In this scene, In OLSTOY OLSTOY OLSTOY 51 T T T ARENINA note 19, at 103–05. K Further, everyone in The porter symbolizes 60 NNA A 58 supra She has traded her posi- She has , , 679, 814). 679, 785–88, 814). 53 could be viewed as both an as both be viewed could AMUK OLSTOY P T EO note 51, at note 51, at L 679, 785–88, 814. Tolstoy illustrates her feelings regard- illustrates her feelings Tolstoy 54 supra supra note 51, at 621 (analyzing note 51, at 621 (analyzing note 51, at 621 (analyzing , , Anna Karenina Anna supra supra supra See generally OLSTOY OLSTOY note 51, at T T supra note 57. , Koehlert-Page, Koehlert-Page, Koehlert-Page, . Novelist Orhan Pamuk explains how another train scene from the . Novelist Orhan Pamuk explains how (analyzing (analyzing . OLSTOY See See T See supra Id. See Id. See id. See id. 55 . 600, 621 (2013). This scene could be viewed as a seminal example. Novelist . 600, 621 (2013). This scene could be viewed 814) 814) 814). At a glance, this selection is about a train station. At a glance, this selection is about note 19, at 103–05. 52. 57. 58. 54. 55. 56. 51. in Cathren Koehlert-Page, The author has previously used this example 53. 60. 59. EV When the train came into the station Anna went out with the came into the station Anna went When the train from them as passengers, and moving away crowd of other trying to lepers she stopped on the platform, though they were had intended had come there and what she remember why she before was that had seemed possible to her to do. Everything crowd of these imagine, especially in the noisy now too hard to peace. Either who would not leave her in monstrous people their ser- come running up to her offering the porters would along the plat- men, clattering in their heels vices, or the young her up and talking in loud voices, would look form boards and on the wrong she met would be walking down, or the people side. supra 51, at 51, at 51, at michael trans., Bantam Books 1981) (1877). L. R same novel is also an objective correlative. same novel is also an objective correlative. Orhan Pamuk uses Anna Karenina to illustrate objective correlative as well. Orhan Pamuk uses Anna Karenina to illustrate Like a Glass-Slipper on a Step-Sister: How the One Ring Rules Them All at Trial Like a Glass-Slipper on a Step-Sister: How the 2013] in station the train from BUTLER’S CUPBOARD INSIDE THE LOOK A correlative. objective and an metaphor extended 449 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 9 28-OCT-14 9:35 ing her situation and propels Anna towards her fate with this scene: her fate with Anna towards and propels ing her situation Anna has already left her husband for her lover Vronsky. husband for her already left her Anna has tion in society for Vronsky, but he offers none of the promise or none of the promise but he offers for Vronsky, tion in society she had hoped. escape that “noisy crowd” and “monstrous people” represent the rumormon- “noisy crowd” and “monstrous society. gers who have banned Anna from which are of no use. her servants and, thus, her riches, been cast-out by the Russian aristocracy. by the Russian been cast-out failed her. men represent Vronsky, who has only the individuals in Anna’s life, the train station represents not the scene could be regarded as an extended metaphor. the scene could be regarded 35568-nys_69-2 Sheet No. 51 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 51 35568-nys_69-2 35568-nys_69-2 Sheet No. 51 Side B 10/28/2014 12:36:12 Every (Apr. EWS N EUTERS 69 R 8–9 (2001). , Anna’s undercur- Anna’s IES 61 D More importantly, the More importantly, 67 AINBOW R IME A T Thus in the pages following the pas- the pages following Thus in Anna can turn to no one; she has no turn to no one; Anna can 63 62 VERY note 15 (illustrating how objective correlative E , supra note 51, at 816. note 23, at 275, 277, 280 (showing how simple meta- ARCIA , author Rita Williams Garcia describes Ysa’s va- , author Rita Williams Garcia describes -G supra Moreover, some of Anna’s reaction to the train Moreover, some , supra Some of the specific details of the train station are Some of the specific 65 66 note 57. ILLIAMS It is objective correlative because it both reproduces It is objective correlative In the scene from which this example is drawn, Williams-Garcia In the scene from which this example OLSTOY 68 W may be a metaphor, but it is not an objective correlative may be a metaphor, but it is not T Berger, Wynne-Jones, This metaphor evokes emotion, but it is a single instance This metaphor evokes emotion, 73 ITA 70 See id. See See Climate Change Will Unbalance Ecosystems—Study See supra See id. See id. See id. See R See id. See id. See id. See Anna’s emotion itself is not symbolic of anything; it is the itself is not symbolic of anything; Anna’s emotion 71 For instance, a statement that an ecosystem is a game of pick- For instance, a statement that an 64 A simple illustrative metaphor is also not an objective correla- A simple illustrative metaphor is In this sense, objective correlative can transcend metaphor, but correlative can transcend In this sense, objective However, the passage also transcends metaphor to reveal and to reveal transcends metaphor the passage also However, 72 71. 72. 73. 65. 67. 68. 69. 66. 70. 61. 62. 63. 64. 10, 2002) (explaining that as each species, each stick, is removed from the ecosys- does provide more than just the single metaphor. does provide more than just the single phors help people to understand everyday concepts such as the “mouth” of a phors help people to understand everyday concepts such as the “mouth” of river). reveals and evokes emotion). on its own. The statement may help the reader understand that if a on its own. The statement may help tive. of course, metaphor is another effective means of conveying emo- is another effective means of course, metaphor of Ysa’s rape in the novel tion. For instance, in the aftermath 450 of them. each regarding Anna’s emotions but NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:441 Time a Rainbow Dies gina as “a crushed rose, [petals dripping ] fully exposed, its blood.” \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 10 28-OCT-14 9:35 up sticks not necessarily symbolic of anything else. not necessarily symbolic a whole situation, or a chain of rather than an entire set of objects, events. purpose and nowhere to go. and nowhere to purpose by using the whole scene. and evokes the emotion sage, Anna commits suicide by throwing herself in front of the herself in front by throwing commits suicide sage, Anna train. actual emotion. might feel in a the ordinary irritation that anyone station includes similar setting. scene is Anna’s emotional experience, which evokes emotion from experience, which evokes scene is Anna’s emotional the reader. rent of emotion is amplified by the metaphoric quality of this quality metaphoric by the amplified is of emotion rent passage. state of mind. evoke Anna’s 35568-nys_69-2 Sheet No. 51 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 51 35568-nys_69-2 35568-nys_69-2 Sheet No. 52 Side A 10/28/2014 12:36:12 EAT- S supra But Anna 75 Wynne- , 29 311, 312 note 23, at with supra IRECTORS D RITING (discussing the emotion and 77 But objective correlative W 76 EGAL L N ’ SS 30–31, 36–37 at J. A Harry Potter, Ruby Slippers and Merlin: Telling the Harry Potter, Ruby Slippers and Merlin: Telling 23, , 7 note But the statement is not a situation, set of situation, not a is the statement But 74 supra Argument, Analogy, and Audience: Using Persuasive Comparisons Argument, Analogy, and Audience: Using , Rita Williams-Garcia, Professor, Vermont College of Fine Arts, Rita Williams-Garcia, Professor, Vermont note 76 (describing traits of endowed objects); Wynne-Jones, note 76 (describing traits of endowed ARDNER . 767, 769 (2006) (explaining that the fact-finder already has an expe- . 767, 769 (2006) (explaining that the fact-finder G note 15 (discussing objective correlative). Ruth Anne Robbins, EV . It’s more insular. Such general metaphors might still be general metaphors insular. Such . It’s more TLE supra Compare See See id. Cf. supra Unlike an endowed object, objective correlative is not a single object, objective correlative Unlike an endowed Both endowed objects and objective correlative are ways of re- and objective correlative Both endowed objects 76. 77. 75. 74. U. L. R C. Correlative Compared and Contrasted to Objective Endowed Objects (2010) (“A well-chosen analogy accomplishes much of the work of persuasion for (2010) (“A well-chosen analogy accomplishes provides background information that the advocate, because the analogy implicitly explaining.”); Berger, the advocate does not have to spend time helps people to understand a wide variety 275, 277, 280 (explaining how metaphor of concepts, such as the “mouth” of a river). Lecture: Objects, Artifacts, and Stuff (Winter 2011) [hereinafter Objects, Artifacts, Lecture: Objects, Artifacts, and Stuff (Winter of endowed objects), and Stuff Lecture](describing characteristics Jones, character traits conveyed by a description of a barn); Objects, Artifacts, and Stuff character traits conveyed by a description Lecture, note 15 (discussing the concept of objective correlative); Kimberly Winters, The note 15 (discussing the concept of objective Things Stories Carry: How a Rope, a Loop of Red Thread, a Song-less Canary, and Other Collected Objects can Reveal the Heart of a Story, at 11–12 (Fall 2004) (on (unpublished critical thesis, Vermont College/Union Institute & University) are file with author) (explaining that objective correlative and endowed objects different). rience base and that the metaphor is effective because it draws on that experience rience base and that the metaphor is effective base); Bruce Ching, While Avoiding Unintended Effects thing; however, an endowed object can be a part of a scene that thing; however, an endowed object endowed objects and objective employs objective correlative. Both the risk that the whole ecosystem could tem, which is represented by the pile, collapse grows as the pile grows). 2013] whole the the pile, from species, stick, one one removes person BUTLER’S CUPBOARD INSIDE THE LOOK A collapse. could thing 451 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 11 28-OCT-14 9:35 objects, or chain of events like the train station scene in station scene like the train or chain of events objects, Karenina in some instances. for the court illustrate a point useful to Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey Client’s Story Using the Characters and Paradigm is a way of revealing that emotional state through the whole scene, that emotional state through is a way of revealing reverberates with object is a single object that whereas an endowed throughout the story. symbolic significance they serve a slightly different function than objective correlative, function a slightly different they serve state and psychological the subject’s reproduces which actually evokes a feeling. and psychological subconscious emotional vealing a character’s be essential to stories. state, and both can 35568-nys_69-2 Sheet No. 52 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 52 35568-nys_69-2 35568-nys_69-2 Sheet No. 52 Side B 10/28/2014 12:36:12 79 note supra and can 81 They do not 85 6–8, 14–16, 31, 35, 37 It is metaphoric in It is metaphoric develop a character, 78 note 76; Winters, 83 UDDY 90 B supra OT , N In the early pages of the book, UD 88 B 86 , Thus, glass slippers, swords in stones, Thus, glass slippers, 80 URTIS They might even be a piece of an over- They might even note 51, at 615, 621, 627 (explaining the differ- note 51, at 615, 621, 627 (explaining , Bud’s suitcase is an endowed object, but , Bud’s suitcase is C 84 . AUL supra P note 77, at 11. The suitcase itself conveys an idea of imperma- The suitcase itself conveys an idea 89 supra Parts II–IV note 81. note 23. at 602, 625. HRISTOPHER Bud, Not Buddy C Objects, Artifacts, and Stuff Lecture, Koehlert-Page, at 2–6. at 1–8. at 6–8. at 11–12. Id. Id. Id. See See See id. See id. See supra See supra See infra Id. See They evoke an emotional response, They evoke an In the book, the protagonist, six-year-old Bud, has lost his In the book, the protagonist, 82 Later, when Bud reaches his new foster home, readers see how Later, when Bud reaches his new For instance, in Christopher Paul Curtis’s Newberry award-win- Christopher Paul Curtis’s Newberry For instance, in 87 88. 89. 90. 78. 79. 80. 81. 82. 83. 86. 84. 85. Winters, 87. (1999) (using the suitcase extensively in these scenes). invasive the new foster parents are when Bud says, “[Mr. Amos] was invasive the new foster parents are looked inside. I could tell be- carrying my suitcase. Uh-oh, they’d ning book, 452 and emotion, of mind state a character’s telegraph can correlative NYU is a object endowed an However, aspects. symbolic both have and ANNUAL SURVEY OF with that reverberates a glass slipper, object, like single material AMERICAN LAW the story. significance throughout symbolic [Vol. 69:441 occurs this interaction metaphor in that distinct from It is further the story. over the course of \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 12 28-OCT-14 9:35 mother and is living in foster care. around suitcases in their own nence; most children do not tote is also the storage place for some- houses on a regular basis. But it Bud packs is a flyer with a picture thing special. The first thing that his father. of a man whom Bud believes is all objective correlative, but unlike objective correlative, they are but unlike objective correlative, all objective correlative, that people can hold in their hands. just single items and lucky baseball bats can create narrative cohesion and lucky baseball and represent the theme. and represent the 77. include the whole environment. include the whole the entire interaction that endows the suitcase is objective correla- that endows the suitcase is the entire interaction tive. he learns that he is leaving for a new foster home and begins pack- he learns that he is leaving for a ing his suitcase. some sense, but unlike the ordinary metaphor, it is a single object, it is a single ordinary metaphor, but unlike the some sense, object. object endows the with the character’s interaction and the work well as a transition or a reminder of previous parts of the or a reminder of previous work well as a transition story. ence between endowed objects and metaphors). 35568-nys_69-2 Sheet No. 52 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 52 35568-nys_69-2 35568-nys_69-2 Sheet No. 53 Side A 10/28/2014 12:36:12 In He 97 92 Bud’s interaction 100 98 As the storage place of the flyer, the As the storage place of the flyer, 99 One of his first tasks is to inspect it. One of his first 96 The Amoses’ interaction with the suitcase The Amoses’ interaction with 95 101 note 87, at 15. note 87, at 31, 37–38. supra supra Mrs. Amos withholds the suitcase to be sure that Bud the suitcase to be sure that Mrs. Amos withholds at 6–8, 14–16, 31, 35, 37. at 14–16 (mentioning the Amoses’ withholding of the suitcase). , , 94 93 at 31. at 37–38. at 14. at 8–10, 14–15. at 38. URTIS URTIS See id. See id. See id. Id. Id. Id. C C Id. Id. Id. Id. The characters’ attitudes towards and interaction with the The characters’ attitudes towards 91 When Bud finally escapes, he is relieved to find the suitcase escapes, he is relieved to find When Bud finally It reverber- the suitcase is an endowed object. In this passage, Bud’s reaction reveals he feels the violation of his privacy. feels the violation reveals he Bud’s reaction of examination with the Amoses’ does not stop The violation However, these scenes simultaneously function as objective cor- However, these scenes simultaneously 102 95. 96. 94. 100. 101. 102. 97. 91. 98. 92. 99. 93. where Mrs. Amos left it. where Mrs. Amos reveals character. significance in the story and ates with symbolic it is also the stor- Bud’s lack of a home. But The suitcase symbolizes the man whom important treasure: the flyer about age place of his when Bud runs away, he goes on he believes to be his father. In fact, a journey to find his father. 2013] not that I did in a knot was tied held it together that the twine cause BUTLER’S CUPBOARD INSIDE THE LOOK A know.” 453 the suitcase. \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 13 28-OCT-14 9:35 will not steal anything. shows that they do not respect Bud and that they do not trust him shows that they do not respect Bud family a child would hope to not to steal; they are hardly the loving join. meaning. suitcase endows the object with events and a set of objects—therelative. They include a chain of These things terminate in a sen- suitcase, the flyer, and the twine. and evokes Bud’s emotions; he sory experience that both conveys suitcase symbolizes Bud’s heart and his journey. Moreover, the suit- suitcase symbolizes Bud’s heart and the Amoses. case reveals a lot about Bud and with the suitcase shows that he longs for a family and that at the with the suitcase shows that he wants to keep private and separate same time he has a world that he from foster parents. so doing, he discovers that the Amoses did rummage through his that the Amoses did rummage so doing, he discovers nothing was stolen. belongings but that even reveals to readers that he plans to get even, which he does by get even, which he plans to to readers that even reveals the fos- running away from shortly before series of pranks pulling a ter home. 35568-nys_69-2 Sheet No. 53 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 53 35568-nys_69-2 35568-nys_69-2 Sheet No. 53 Side B 10/28/2014 12:36:12 supra 104 Anna Karenina However, while 103 note 76; Winters, supra II. . 51 note supra A. Overlapping Benefits of Objective Correlative Objects, Artifacts, and Stuff Lecture, See REASONS FOR USING OBJECTIVE CORRELATIVE REASONS FOR USING OBJECTIVE The scene itself can form an emotional and psychological back- The scene itself can form an emotional with and reaction to In objective correlative, the interaction However, not every objective correlative will include an en- will include an correlative not every objective However, resonate in objects and objective correlative Both endowed 104. 103. For examples of endowed objects used effectively in trial narratives, see note 77. Koehlert-Page, drop in a story and can help develop character and plot. In writing drop in a story and can help develop develop relevant facts using the briefs or at trial, the attorney can states of mind. external world to reveal internal the internal state of mind. In the external world of the scene reveals narratives, objective correlative fictional works, briefs, and litigation develop character, and drive plot. works well to convey emotion, tasks, emotion signifying words like With respect to the first of these the reader; something more is “grief” do not reproduce grief for the reader how grief affects the needed. Thus, if the writer shows setting and the character’s reac- character’s interactions with the the reader will have a better sense tions to the chain of events, then fact, the reader will have a better of what it means to grieve. In or witness to grieve. The sense of what it means for this character or witness forward on the interaction then propels the character plotline. 454 the Note that father. for a true longs and foster parents the distrusts NYU the objective Rather, correlative. an objective is not alone suitcase ANNUAL SURVEY OFinside the the items the foster parents, includes Bud, correlative AMERICAN LAW the inter- and all of towards the suitcase, all of the attitudes suitcase, [Vol. 69:441 the suitcase. action with from the scene above For instance, dowed object. with symbolic sig- a single object that reverberates does not include experience at the story. Rather, all of Anna’s nificance throughout state. as a whole conveys her psychological the train station and fiction narratives. both litigation narratives \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 14 28-OCT-14 9:35 an endowed object can gracefully carry much of a story’s weight, it can gracefully carry much of an endowed object a story on its own. of the psychological nuance in cannot carry all into the details allows the writer to burrow Objective correlative a single item outside of its bounds. without stretching 35568-nys_69-2 Sheet No. 53 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 53 35568-nys_69-2 35568-nys_69-2 Sheet No. 54 Side A 10/28/2014 12:36:12 107 Words like “hate” 105 217 (2002). “If loathing of school is significant, 108 note 15. IDDLESEX : M note 15. , supra 1. Words Emotion-Signifying supra Middlesex UGENIDES E Protagonist Cal Stephanides seizes on this awkwardness Protagonist Cal Wynne-Jones, 109 EFFREY 106 Id. J See See id. This scene may communicate Casey’s emotions better than the This scene may communicate Casey’s Professor Wynne-Jones takes this idea further and explains that Professor Wynne-Jones takes this Professor Tim Wynne-Jones explains that a character’s re- Wynne-Jones explains that a character’s Professor Tim In both fiction and law, objective correlative can work better can work objective correlative fiction and law, In both 109. 108. Wynne-Jones, 105. 106. 107. Emotions, in my experience, aren’t covered by single words. I Emotions, in my experience, aren’t or “regret.” Maybe the best don’t believe in “sadness,” “joy,” is that it oversimplifies proof that the language is patriarchal complicated hybrid emo- feeling. I’d like to have at my disposal like, say, “the happi- tions, Germanic train-car constructions disappointment of sleeping ness that attends disaster.” Or: “the how “intimations of mortal- with one’s fantasy.” I’d like to show members” connects with “the ity brought on by aging family middle age.” I’d like to have a hatred of mirrors that begins in failing restaurants” as well as word for “the sadness inspired by room with a minibar.” for “the excitement of getting a characters themselves can, as most people are not self-aware characters themselves can, as just saying something like, “Casey hated school,” does not convey just saying something like, “Casey Casey’s feelings to the reader. sponse to the scene can reveal character and evoke emotion in a can reveal character and evoke sponse to the scene of the emotion itself cannot. way that a report 2013]BUTLER’S CUPBOARD INSIDE THE LOOK A the reader emotion in “angry” to evoke like “sad” and than words is Objective correlative emotional state. portray an and accurately 455 is typi- Such nuance words. than emotion-signifying more nuanced inher- prefers the fairness our legal system objective, and cally more ent in objectivity. a. Fiction \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 15 28-OCT-14 9:35 we need to find a way to objectify it. Casey looked at the alphabet. we need to find a way to objectify kid, that’s for sure. Those letters Who wrote those letters? Not a a kind of punishment for were written by aliens he thought, humans.” of words that signify emotion in Jeffrey Eugenides’s Pulitzer Prize emotion in Jeffrey Eugenides’s of words that signify winning novel, and “love” are clumsy and can mean many things depending on the and can mean many things and “love” are clumsy context. 35568-nys_69-2 Sheet No. 54 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 54 35568-nys_69-2 35568-nys_69-2 Sheet No. 54 Side B 10/28/2014 12:36:12 De- 110 Voskuil v. Instead, the 113 115 note 16. note 16. supra supra , , LIOT LIOT E E see also In this instance, it probably would not In this instance, the defendant wanted to access the psy- the defendant wanted 112 note 77, at 11; note 77; But they do not convey the depression itself as But they do not convey the depression 2. Emotion-Conveying Events supra supra 116 Thus, it referred to the emotion-signifying words in to the emotion-signifying words Thus, it referred , at *2. 114 Objective correlative serves to provide that sense. to provide that correlative serves Objective Winters, Brief of Respondent in Opposition to Petition for Writ of Certiorari Brief of Respondent in Opposition to Winters, 111 See See See id. See id. See id. See id. See While emotion-signifying words may fall short in both fiction While emotion-signifying words The words “very depressed, felt really sad and wasn’t happy” The words “very depressed, felt Just as emotion-signifying words fail to capture the emotion it- the emotion words fail to capture Just as emotion-signifying 111. 112. 113. 114. 115. 116. 110. at 4, Voskuil v. Envtl. Health Ctr., 531 U.S. 1192 (2001) (No. 00-1044), 2001 WL at 4, Voskuil v. Envtl. Health Ctr., 531 34116846, at *4. and in legal narratives, the external world can work quite nicely to and in legal narratives, the external burrowing into a person’s reaction do what these words cannot. By a writer can reveal the subtle nu- to events, objects, and scenery, ances of that person’s state of mind. chological records of the plaintiff, Caryn Voskuil. The defendant of the plaintiff, Caryn Voskuil. chological records state at issue in that Voskuil had put her emotional sought to prove claim. her discrimination . . . very miserable” let the along with “hopelessness, unhappiness people to know that she was se- reader know that Voskuil wanted verely depressed. 456 state. emotional own their verbalize and to identify enough NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:441 b. Law in similarly fail in law. For example, self in fiction, they Center, Environmental Health \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 16 28-OCT-14 9:35 profoundly as objective correlative could. profoundly as objective correlative her deposition: “Voskuil decided to leave the University of Texas “Voskuil decided to leave the University her deposition: felt really sad because she got very depressed, and return to Dallas Voskuil’s definition of this de- and wasn’t happy with the program. unhappiness and that pression included feelings of hopelessness, had to change.” she was very miserable and things improve the defendant’s case to convey the emotion since that case to convey the emotion improve the defendant’s empathy for the plaintiff. emotion could establish spite this lack of awareness, readers need a sense of a character’s sense of need a readers of awareness, this lack spite emotions. invoked emotion to show that Voskuil had defense merely needed in her claim. 35568-nys_69-2 Sheet No. 54 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 54 35568-nys_69-2 35568-nys_69-2 Sheet No. 55 Side A 10/28/2014 12:36:12 . HE 121 122 T in , As Professor On the Relation of note 16. 120 The reader need note 16. Remains of the Day supra , 118 supra , (1988). LIOT E AY LIOT D E see also EMAINS OF THE note 15 (explaining that objective correlative is note 15 (explaining that objective correlative R HE T supra ] (discussing the dream brain and symbolism); Eyster, ] (discussing the dream brain and symbolism); note 77, at 11–12; note 77, at 11; , On the Relation of Analytical Psychology to Poetry On the Relation of Analytical Psychology to Concrete items in the characters’ objective items in the Concrete , 117 supra supra note 23, at 314–15, 318–19 [hereinafter UNG J SHIGURO 124 supra I at 165. , ARL C Winters, Winters, Wynne-Jones, AZUO UNG See See See id. Cf. K Id. Id. See J In fact, symbolism is not the end goal. In fact, symbolism Ishiguro illustrates Stevens’ reasons for withholding: Ishiguro illustrates 119 The interaction between Mr. Stevens and Miss Kenton over the The interaction between Mr. Stevens Kazuo Ishiguro captures this quicksilver in Kazuo Ishiguro As she discusses revealing that internal state, novelist Kim Win- novelist Kim that internal state, revealing As she discusses note 25, at 108. 123 118. 119. 124. 120. 121. 122. 123. 117. I have never allowed the situation to slip into one in which the I have never allowed the situation from my pantry all day. The housekeeper is coming and going is a crucial office, the butler’s pantry, as far as I am concerned, not unlike a general’s head- heart of the house’s operations, imperative that all things in it quarters during battle, and it is are ordered—and left ordered—precisely the way I wish them of butler who allows all sorts to be. I have never been that sort with all of their queries and of people to wander in and out conducted in a smoothly co- grumbles. If operations are to be that the butler’s pantry must ordinated way, it is surely obvious privacy and solitude are be the one place in the house where guaranteed. ORTABLE Analytical Psychology to Poetry supra not just a device). P pantry is an objective correlative; this glance inside his butler’s cup- pantry is an objective correlative; Rather, “[emotional] truths . . . are as slippery as quicksilver.” truths . . . are as slippery Rather, “[emotional] experience those is how people actually Objective correlative truths. 2013]a. Fiction BUTLER’S CUPBOARD INSIDE THE LOOK A their own hyper-aware of are not that most individuals ters explains are [about emotion] she explains, “Clues states. Thus, emotional 457 a reader—concreteto entice and hook needed hint at clues that heart.” the story’s \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 17 28-OCT-14 9:35 worlds can correlate to their subjective states. worlds can correlate In the novel, the English butler, Mr. Stevens, never acknowledges English butler, Mr. Stevens, never In the novel, the not even to him- the housekeeper, Miss Kenton, his feelings for self. Wynne-Jones says, objective correlative is not simply a device. objective correlative is not simply Wynne-Jones says, not notice the symbolic meaning for these concrete items to reso- meaning for these concrete not notice the symbolic nate. 35568-nys_69-2 Sheet No. 55 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 55 35568-nys_69-2 35568-nys_69-2 Sheet No. 55 Side B 10/28/2014 12:36:12 act ENMARK Romantic D 99 (2010). 126 HEORY She might see his She might RINCE OF T , P 128 Others believe that 131 ITERARY being one-dimensional, AMLET . Eliot contends that the . Eliot contends L H 132 note 15 (explaining how external The pantry reveals Mr. Ste- reveals Mr. The pantry 127 Hamlet Shortly after the passage above, the passage after Shortly supra 125 RAGEDY OF T HAKESPEARE AND HE S T , , 130 ] ARRIS Wynne-Jones, note 123, at 165–67. The novel as a whole makes this representation more The novel as a whole makes this representation The novel as a whole revolves around this tension. The novel as a whole revolves around H with IL note 16. , supra HAKESPEARE G , S supra at 121–22. , ILLIAM LIOT SHIGURO ONATHAN For example, in the passage below, Hamlet describes his the passage below, Hamlet describes For example, in See id. See generally id. See generally id. I E W J Compare id. 129 Shakespeare may have intended that this passage be melodra- Shakespeare may have intended Regardless of Shakespeare’s intent, the question for writers Regardless of Shakespeare’s intent, In contrast, more blatant proclamations of feelings often fall blatant proclamations of feelings In contrast, more 131. 132. 127. 128. 129. 130. 125. 126. Leaps into the grave. What is he whose grief phrase of sorrow Bears such an emphasis, whose makes them stand Conjures the wand’ring stars, and This is I, Like wonder-wounded hearers? Hamlet the Dane! [ 5, sc. 1. clear. happenings in a scene represent the character’s internal world). happenings in a scene represent the character’s matic; it does not do justice to the grief one feels after a loved one matic; it does not do justice to the believe that Hamlet was trying commits suicide. In fact, some critics grief. to match Ophelia’s brother Laertes’s 458 of mind. his state reveals board NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:441 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 18 28-OCT-14 9:35 she may not provide a fully-fleshed source of grief. she may not provide a fully-fleshed passage evoke?” It may be effec- should be: “What feelings does this Miss Kenton intrudes into the pantry and demands to see the book see the to and demands pantry into the intrudes Kenton Miss romance. out to be a simple which turns he is reading, grief in dialogue when his lover Ophelia kills herself. grief in dialogue when his lover vens’s fears of intimacy and his worries regarding what might hap- regarding what and his worries of intimacy vens’s fears with Miss Kenton. he to share himself pen were the character Ophelia is thinly drawn; the character Ophelia is thinly tension between Mr. Stevens and Miss Kenton pervades the novel, pervades and Miss Kenton between Mr. Stevens tension feelings. never voice their but they the power to hurt workings. That would give her feelings and inner that change and his life in some way. He fears him or to change on the therapist’s However, Mr. Stevens is not that loss of control. the neatly-ordered his own true motivations, so couch examining those motivations for the reader. pantry must reveal in the essay capture the “quicksilver.” For example, short and fail to correlative, of the discussion regarding objective that started much Shakespeare’s T.S. Eliot criticizes play does not ring true because the emotion is all detailed in solilo- true because the emotion is all play does not ring quies. 35568-nys_69-2 Sheet No. 55 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 55 35568-nys_69-2 35568-nys_69-2 Sheet No. 56 Side A 10/28/2014 12:36:12 137 140 , Sweet, Lizzie, , Sweet, Wench (2011). 141 but the writer who wants to who wants the writer but OVEL 133 : A N Eventually, Sweet loses three chil- Eventually, Sweet ENCH 139 W , She is not allowed to return home to her She is not allowed note 134, at 188. 135 ALDEZ supra , -V The two women then do not see Sweet for days. The two women ALDEZ ERKINS 138 -V P (discussing Lacan’s discussion of Hamlet’s display). (discussing Lacan’s discussion of Hamlet’s Sweet greets her friends carrying a newly made funeral friends carrying a newly made Sweet greets her at 189. at 184. at 185. at 186. at 187. at 188. While away, Sweet receives news that illness has struck receives news that illness has While away, Sweet OLEN ERKINS 136 Id. Id. Id. Id. Id. Id. D P See id. 134 135. 136. 137. 138. 139. 140. 141. 133. 134. [Lizzie] found Sweet in the middle of the room, sitting amidst in the middle of the room, [Lizzie] found Sweet Her hair was disheveled, lips a mountain of shredded fabric. dehydration. “What are you covered with the white crust of making, Sweet?” “Making.” few days.” “We ain’t seen you around in a “I told you. Making.” in her hands. Some of it was Lizzie took up some of the fabric good—muslin,coarse cloth. But some of it was cotton, wool. lace, sackcloth. Lizzie Parts of it looked like undergarments, dress. The lower half of it recognized the top portion of a girl’s textures. Lizzie went into the was a neverending patchwork of barren of sheets, the closets bedroom and saw that the bed was been used. Maybe Sweet’s empty of clothes. Everything had knew Sweet had sewn up eve- man was grieving, too. Surely he rything in the cottage. Some were loose, others The stitches weren’t even either. folds. bunched the fabric into uneven Sweet cannot return home to bury her child, so Reenie and Lizzie home to bury her child, so Sweet cannot return bury the dress. 2013] melodrama, showy for conveying tive BUTLER’S CUPBOARD INSIDE THE LOOK A 459 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 19 28-OCT-14 9:35 dress for her first child; readers learn that the child has died. child; readers learn that the dress for her first Reenie and Liz- appears on Lizzie’s porch, and Then another dress for Sweet. zie bury the dress children. of her cabin. left, and does not come out dren, has one child convey grief might examine different models. Each loss is different, Each loss models. different might examine grief convey instead of uniquely. But the loss person will experience and each sad than and I’m more of “I am so sad, some version just mouthing will en- most characters pentameter, in a rough iambic all of you,” in a events that terminate or a chain of objects, a situation, counter book instance, in the experience. For sensory masters as mis- slaves vacationing with their and Reenie are tresses. her master’s plantation. 35568-nys_69-2 Sheet No. 56 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 56 35568-nys_69-2 35568-nys_69-2 Sheet No. 56 Side B 10/28/2014 12:36:12 151 147 145 , the Fur- That 148 143 Davis 150 , Davis v. Washington, 547 The defense argued that the state- The defense argued Hammon v. Indiana 146 The facts in the state’s brief underscored The facts in the 149 This chain of events conveys her unique grief, her unique of events conveys This chain 144 Not only is she obsessed, but the uneven stitches but the uneven is she obsessed, Not only 142 at 8. at 43–46. at 2. at 190. at 189. at 189–91. at 40–42. at 1–2. Id. Id. Id. Id. See id. See id. Id. Id. See id. Here Hammon’s words were that “nothing was the matter.” Here Hammon’s words were that Lawyers can reveal what a witness’s words do not reveal on what a witness’s words do Lawyers can reveal Sweet neither wails like Hamlet nor makes a display of jumping display of a nor makes Hamlet wails like neither Sweet 142. 143. 144. 145. 146. Brief for Respondent in 147. 148. 149. 150. 151. [A]t 10:55 p.m. . . . Officers Jason Mooney and Rod Richardson [A]t 10:55 p.m. . . . Officers Jason a domestic disturbance at responded to a dispatch concerning Amy Hammon. . . . Officer . . . the home of Hershel and porch of her house . . . Amy Mooney found Amy on the front Officer Mooney asked appeared “[t]imid” and “frightened.” if anything was going on,” Amy “if there was a problem and was the matter” and and Amy answered “No,” that “nothing “that everything was okay.” . . . house. T]he Hammon living [Officer Mooney entered the of the room lay shattered room was in disarray. In a corner front panel of a gas heater. glass from what had been the in the open. Flames from the heater flickered U.S. 813 (2006) (No. 05-5224), 2006 WL 271825. U.S. 813 (2006) (No. 05-5224), 2006 WL But the chain of events and set of objects indicated that something But the chain of events and set of their own by using objective correlative. For example, in objective correlative. For example, their own by using that the statements were not testimonial. The state argued 460 NYUcarries clothes the for making her obsession Rather, the grave. into ANNUAL SURVEY OF she drools incoherent that Sweet is so rest of the chapter; on for the AMERICAN LAWas she works. [Vol. 69:441 own children. woman not allowed to bury her the grief of a slave b. Law of a battered wife the out-of-court statements state sought to admit husband. in the trial of the \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 20 28-OCT-14 9:35 this contention: ments violated the Sixth Amendment’s Confrontation Clause. the Sixth Amendment’s Confrontation ments violated and the mismatched fabric show she is disoriented by grief. show she is disoriented mismatched fabric and the ther, the state contended that battered spouses are frequently too that battered spouses ther, the state contended intimidated to testify. she has destroyed all of the sheets and clothes in the cabin shows clothes in the cabin the sheets and destroyed all of she has her desperation. 35568-nys_69-2 Sheet No. 56 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 56 35568-nys_69-2 35568-nys_69-2 Sheet No. 57 Side A 10/28/2014 12:36:12 153 159 Anna Karenina The next move 163 Moreover, she once The scene conveys that 158 161 note 146, at 2. supra 156 3. and Plot Character 162 note 51. note 51. at 614–615. First, there was the domestic disturbance call. Then call. disturbance domestic was the there First, at 1–2. . 152 Brief for Respondent, at 1. at 3. Thus, the objective correlative spoke louder than Ms. spoke objective correlative Thus, the Ms. Hammon did eventually reveal that she was reveal did eventually Ms. Hammon See id. See id. See id. See supra See Id. See id. Id. See generally id. See supra See id. See id 155 She was once flattered by the attention of young Vronsky; so She was once flattered by the attention They will not leave her in peace. 154 157 Objective correlative not only develops Anna’s character, but it Objective correlative not only develops In using objective correlative to reveal the individual’s unique correlative to reveal the individual’s In using objective inner-work- correlative reveals the subtle In fiction, objective 160 160. 161. 162. 163. 152. 153. 154. 155. 156. 157. 158. 159. But now the people in the train station are “monstrous . . . lep- But now the people in the train ers.” station scene and Anna’s reac- is an impetus for the plot. The train of the train. tion to it finally push Anna in front emotional state, the writer also reveals the person’s character. In the writer also reveals the person’s emotional state, driving these writer also establishes the motivations the process, the of events can be their plotlines. Indeed, a chain people forward on the next step. pushes a character or witness to the catalyst that a. Fiction a character forward on his or her ings of a character and propels station scene from plotline. For instance, in the train learn much about Anna’s evolu- discussed in Part I.B., readers tion. 2013]wrong. was BUTLER’S CUPBOARD INSIDE THE LOOK A at night. late outside standing Hammon found Amy officers the glass, and shattered with the disarray, in combination These events in fact, something was, to suggest that flames all tend flickering 461 wrong. \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 21 28-OCT-14 9:35 Hammon’s initial words. Hammon’s with him. flattered that she fell in love beaten. Anna believes that society can only take pieces of her and can offer Anna believes that society can only nothing in return. wanted something from society and attended social gatherings. wanted something from society would have been hollow had Anna instead thought, “Gee, my life is would have been hollow had Anna cheating on my husband with a horrible mess ever since I started 35568-nys_69-2 Sheet No. 57 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 57 35568-nys_69-2 35568-nys_69-2 Sheet No. 57 Side B 10/28/2014 12:36:12 Mr. 167 170 case discussed in Part case discussed in 165 Readers understand her a little Hammon Objective correlative illustrates note 146, at 1–7. After establishing that the room After establishing 168 166 164 supra at 833–34. Id. at 44. at 44–45. The Court deemed that the affidavit, like the account above, was Brief for Respondent, Id. at 3–4. at 41. See Id. Id. See id. See id. See generally id. 169 These reasons for her refusal to testify make the need for her These reasons for her refusal to However, Ms. Hammon initially said that nothing was wrong, However, Ms. Hammon initially Similarly, objective correlative can reveal the character of wit- correlative can reveal the character Similarly, objective 164. 165. 166. 167. 168. 169. 170. Davis v. Washington, 547 U.S. 813, 832 (2006). Ms. Hammon also wrote Mr. Hammon, during the verbal part of the argument was the verbal part of the Mr. Hammon, during the phone, in the living room . . . he broke breaking things it became broke the front of the heater. When broke the lamp, heater. . . . her down into the glass of the physical he threw onto the ground, had shoved Mr. Hammon had pushed her of the heater and that he had her head into the broken glass . . . punched her in the chest twice. out-of-court statements more understandable. While the U.S. Su- out-of-court statements more understandable. statements were testimonial, preme Court did hold that Hammon’s notoriously involves coercion of it recognized that this type of crime from testifying. the witness to prevent the witness an affidavit. testimonial and inadmissible. and she later refused to testify. 462 anymore. good parties of the to any get invited I don’t and Vronsky, NYU have would a passage Such a train.” front of in I’ll jump I think ANNUAL SURVEY OF forces to the station Anna’s reaction like a cheat. Instead, seemed AMERICAN LAW of the train. her in front [Vol. 69:441 b. Law the real-life plot the impetus for their actions in nesses and reveal instance, in the of the case. For \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 22 28-OCT-14 9:35 Ms. Hammon’s of events and set of objects reveal II.A.2.b, the chain motivations. character and her one potential motivation for her decision: she was afraid. one potential motivation for her and why she later refused to more, why she first lied to the police, testify. was in disarray, the state’s attorney went on to write: was in disarray, Hammon’s violence, the broken glass, and the heater’s flames all Hammon’s violence, the broken stand in for Ms. Hammon’s fear. 35568-nys_69-2 Sheet No. 57 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 57 35568-nys_69-2 35568-nys_69-2 Sheet No. 58 Side A 10/28/2014 12:36:12 174 note 25, at 94, 100, supra For instance, initially, the For instance, initially, note 172, at 4. 171 supra the clutter and school setting illus- Such details as the lack of visibility and Such details as the lack of visibility Transcript of Mark Rubenstein, M.D., Lei v. City 175 B. Relevance Legal The student, Manny Lei, was alone in the The student, Manny Lei, was alone note 25, at 59–64 that investigation of (explaining 173 , No. 99848 (N.Y. Ct. Cl. Feb. 18, 2004) (trial transcript see also supra Some writers might instead focus on the hazard- Some writers might , Brief of Claimant-Respondent, Lei v. City Univ. of New York Brief of Claimant-Respondent, Lei v. City 172 (Lei I) at 4–5; OBBINS R Lei v. City of New York, See generally See id. Id. Cf. , 33 A.D.3d 467 (N.Y. App. Div. 2005) (No. 6905), 2005 WL 5950602 , 33 A.D.3d 467 (N.Y. App. Div. 2005) As symbolic as these ideas are, they are also relevant. For in- As symbolic as these ideas are, Objective correlative does not merely impart these types of sub- these types of not merely impart correlative does Objective including can teach brief writers about Objective correlative 172. 173. 174. Brief of Claimant-Respondent, 175. 171. details is necessary to determine relevant facts); Eyster, details is necessary to determine relevant out physical details). 105 (2008) (encouraging attorneys to seek (Lei II) (describing an accident in a similar lab). speaking of the clutter). Univ. of New York The lab could not be seen from the office, which was across the hall The lab could not be seen from the and twenty-five feet away. 2013]BUTLER’S CUPBOARD INSIDE THE LOOK A 463 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 23 28-OCT-14 9:35 ous materials or the mechanism of the burning accident itself; how- the mechanism of the burning accident ous materials or backdrop for the itself can form a symbolic ever, the laboratory education and a school laboratory, it symbolizes negligence. Being students. such as oversight and nurturing its ancillary obligations symbolize neglect in contrast to Any clutter in the room can nurture. stance, in was in his office on the phone. lab. His instructor, Mr. Keltner, sculpture, tools, and equipment in a metal lab might not seem im- and equipment in a metal lab might sculpture, tools, burning accident. in a negligence case for a mediately relevant might also initially that the lab was in a school Moreover, the fact seem incidental. tle psychological messages in a legal narrative; it plays an additional it plays an in a legal narrative; messages tle psychological is actu- correlative evidence. Objective relevant role in developing a co- the past, building and capturing of discovering ally a means facts. legally relevant and conveying of the case, herent theory relevant details. potentially important the distance underscore that Mr. Keltner was not supervising the distance underscore that further highlighted this neglect of Manny. The appellate attorney with materials, including his his duty: “The room was cluttered trated in trial transcripts and an appellate brief underscored the trated in trial transcripts and an laboratory was negligent and claimant’s argument that a college and for future pain and suffer- that damages for pain and suffering ing were reasonable. 35568-nys_69-2 Sheet No. 58 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 58 35568-nys_69-2 35568-nys_69-2 Sheet No. 58 Side B 10/28/2014 12:36:12 176 Ulti- 177 , 33 A.D.3d 467 The details all 180 Lei II note 172, at 4–5. supra Using these variables in combina- Using these variables III. 178 179 Transcript of Leo J. DeBobes, note 19, at 89 (discussing how the landscape is seen note 19, at 89 (discussing how the landscape supra see also , , State v. Watson, 751 A.2d 1004, 1007 (Me. 2000) (leaving a , State v. Watson, 751 A.2d 1004, 1007 , 33 A.D.3d at 468–69. The court did not uphold the damages for AMUK P at 4–5; Id. Lei II See, e.g. See at 469. TRAITS OF EFFECTIVE OBJECTIVE CORRELATIVE TRAITS OF EFFECTIVE Id. Gaining an understanding of the meaning and purposes of ob- Gaining an understanding of the This concept can potentially be relevant in a wide variety of potentially be relevant in a wide This concept can note 173 (trial transcript speaking of the clutter). note 173 (trial transcript speaking of the 176. 177. Brief of Claimant-Respondent, 178. 179. 180. through the characters); Michaela Roessner, Instructor, Gotham Writers’ Work- shop, Online World-Building Lecture in Advanced Science Fiction Writing (Aug. 8, 2012) (on file with author) (discussing how a good science fiction setting is seen the through the eyes of the characters and thus “multitasks” by revealing not only scene but the character and theme). (trial transcript speaking of the congestion); Transcript of Mark Rubenstein, M.D., (trial transcript speaking of the congestion); supra objective correlative details mentioned lost wages, which are not a part of the above. 464metal rods.” bend to a machine anvil and stool, an a sculpture, NYU sense, general a more in carelessness convey may clutter Although ANNUAL SURVEY OF attorney when the immediately relevant not have seemed it might AMERICAN LAWwas unable caught fire, he once Manny of it. However, first learned [Vol. 69:441 in the room. because of the clutter drop, and roll” to “stop, \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 24 28-OCT-14 9:35 jective correlative is simply the first step in the process of effective jective correlative is simply the first gracefully weave in details to con- writing. The storyteller must also reveal these details through the vey a sense of naturalness and must character. Objective correlative eyes and voice of the viewpoint seamlessly work together to works best when these elements of the character. convey the story through the eyes tion allows the attorney to paint one relevant picture that highlights to paint one relevant picture tion allows the attorney case. the theory of the of events can the scene, set of objects, or chain cases. For instance, self-defense, trial regarding a negligent accident, be relevant in any protection. assault, or child “lightly clad” child in the car on a cold winter day could be considered child en- “lightly clad” child in the car on a cold 968 S.W.2d 808, 810 (Tenn. App. 1997) dangerment); Hutton v. City of Savannah, in determining liability for car accident); (considering cloudy and rainy weather 682, 684 (La. App. 1941) (weighing a Healey v. Playland Amusements, 199 So. assault and self-defense issues). flashlight shoved in a plaintiff’s face in considering mately, the trial court found the school negligent, and the appel- negligent, and the school trial court found mately, the for pain that the damages holding upheld that finding, late court reasonable. and suffering were 35568-nys_69-2 Sheet No. 58 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 58 35568-nys_69-2 35568-nys_69-2 Sheet No. 59 Side A 10/28/2014 12:36:12 http:// Moreo- LAREMONT C 187 The Girl With , available at The writer does not The writer does 185 Objective correlative is Objective correlative 184 is meant to convey a somewhat The Feminist Action Hero note 19, at 98, 103 (explaining that the de- note 19, at 98, 103 (explaining that the note 15 (discussing how the scene is part of the note 15 (discussing how the scene is part supra , The only thing such a list telegraphs is a The only thing note 180. Professor Roessner explains that simply note 180. Professor Roessner explains 183 Cheryl Miller, 1. Weaving Seamless 186 note 19, at 98, 103 (explaining that the details keep note 19, at 98, 103 (explaining that the supra cf. AMUK note 186. Perhaps the list of Ikea purchases made by the (illustrating the manner in which objective correlative (illustrating the manner in which objective P supra supra supra , Further, the scene is viewed through the charac- Further, the scene note 182. note 182. The Girl with the Dragon Tattoo see also 182 , Winter 2010, at 98 (book review), , Winter 2010, at 98 (book review), includes an entire list of the protagonist’s Ikea purchases). A. in Fiction Objective Correlative Effective ; AMUK Roessner, P Miller, Wynne-Jones, OOKS For instance, the writer does not simply state, “Chandra’s For instance, the writer does not Cf. See supra See supra See id. Cf. See See generally id. Cf. note 180 (explaining that simply stuffing a story full of details is not the note 180 (explaining that simply stuffing B 181 188 OF Thought, action, objects, gestures, sensations all unfold beat- objects, gestures, sensations all Thought, action, When objective correlative is done well, the elements of the the elements is done well, correlative When objective supra 187. 188. 185. 186. 184. 181. 182. 183. . EV way to “world-build” and advising that the world unfold as seen through the eyes of way to “world-build” and advising that the the viewpoint character); tails keep readers attentive because of how they appear to the protagonist); Roess- tails keep readers attentive because of how ner, www.claremont.org/article/feminist-action-hero/ (complaining that www.claremont.org/article/feminist-action-hero/ the Dragon Tattoo lead character in autistic state of mind. describing the setting will seem like exposition. Thus, the setting must be a part of describing the setting will seem like exposition. the interaction in the scene. readers attentive because of how they appear to the protagonist). readers attentive because of how they appear R by-beat in graceful objective correlative. by-beat in graceful 2013]in the there actually was if a person might way they the unfold BUTLER’S CUPBOARD INSIDE THE LOOK A scene. 465 and relayed in the moment in the character’s life ter’s eyes at that voice. narrator’s unique \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 25 28-OCT-14 9:35 scene are woven together in moment-by-moment action, thought, action, in moment-by-moment woven together scene are and dialogue. sense that the narrator might be inane and a little manic. might be inane and a little sense that the narrator a quilt, a white candle holder, a room had a queen sized bed with and white curtains.” Not only is lamp, a plant, a mirror on the wall, it simply is not the way we would such a description very boring, given point in our lives. The only experience Chandra’s room at a unfolding of the action seen through the eyes of the viewpoint character). unfolding of the action seen through the unfolds). ver, objective correlative is not merely a catalogue of items in the ver, objective correlative is not merely room. not simply a catalogue of items in the scene. not simply a catalogue string together a list of adjectives and say, “[I]t was a hot, dry, a list of adjectives and say, “[I]t string together day.” bright, and clear 35568-nys_69-2 Sheet No. 59 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 59 35568-nys_69-2 35568-nys_69-2 Sheet No. 59 Side B 10/28/2014 12:36:12 189 193 195 Marina In fact, 192 197 196 The author, Patchett, in- The author, Patchett, 191 (2012). note 180. ONDER supra W Moreover, to survive the jungle, Marina Moreover, to survive In the book, medical researcher Marina is Marina book, medical researcher In the TATE OF note 19, at 89 (discussing how the landscape is seen note 19, at 89 (discussing how the landscape note 190, at 101–02. S 194 190 , . supra supra , , ATCHETT AMUK P P at 2–4, 25, 29–30. 8, 10, 12, 18, at 42–43, 113–14, 221. at 21–22, 45. at 7, 10. at 33–34, 37–38, 46, 48. NN ATCHETT Id. Id. Id. Id. Id. Id. A P See State of Wonder Notice, Patchett does not simply write, “It was still really hot Notice, Patchett does not simply Rather, objects, weather, temperature, actions, gestures, and actions, gestures, temperature, objects, weather, Rather, 191. 192. 193. 194. 195. 196. 197. 190. 189. Marina felt the top of her head turning soft as the sun worked Marina felt the top of her head coils . . . She mopped at her into her brain, unloosening its Rodrigo had pressed on her face with a large red handkerchief she felt the swimsuit with that morning. . . . Under her clothes her body like an endless every inhalation. It wrapped around as it soaked her up. She bandage, growing larger and looser face. Her vision was clouded kept pushing the cloth against her only make out the most by the sweat in her eyes. She could sand, water, sky. basic elements of the landscape: through the characters); Roessner, outside, and Marina was sweating.” Instead, Marina’s reaction to the outside, and Marina was sweating.” part of the scene. heat and to the Lariam is a natural Only Dr. Swenson does not want to be found and does not wish to does not want to be found and Only Dr. Swenson produce her results. of the jungle to book, Patchett uses the conditions Throughout the passages like the one below. convey Marina’s state of mind in 466 is the narrator about indicate might a description that such thing NYU an with someone or maybe appraiser be an could the narrator that ANNUAL SURVEY OF items. for cataloging obsession AMERICAN LAW [Vol. 69:441 unfolds. as the scene seamlessly are all woven together the like Patch- ever-present in Ann the Amazon is the heat of For instance, ett’s \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 26 28-OCT-14 9:35 must take mind-altering drug Lariam to prevent malaria. drug Lariam to prevent must take mind-altering cludes several letters with tales of Anders’s feverish state. with tales of Anders’s feverish cludes several letters grieving the loss of her co-worker, Anders, who is presumed to have of her co-worker, Anders, who is grieving the loss Amazon with Ma- while researching fertility in the died from fever Dr. Swenson. rina’s former professor, Patchett never says, “Marina was sweating.” Rather, Marina’s sweat is Patchett never says, “Marina was the swimsuit soaking, and a part of the action, the face mopping, travels to the Amazon jungle to verify the death, to find Anders’s jungle to verify the death, travels to the Amazon Dr. Swenson. back the research results of body, and to bring 35568-nys_69-2 Sheet No. 59 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 59 35568-nys_69-2 35568-nys_69-2 Sheet No. 60 Side A 10/28/2014 12:36:12 She Sweat 209 211 She is also 199 206 Thus, “the top of Thus, “the top 202 213 finding a dead man in the Ama- finding a dead It loosens her brain coils. 205 Her swimsuit soaks her. 208 For reasons that remain mysterious For reasons that 210 207 To some extent, Marina experiences what we experiences Marina extent, To some note 190, at 101–02. note 190, at 33–34,37–38, 46, 48. Moreover, throughout the book Patchett re- the book Patchett throughout Moreover, 198 201 212 supra supra , , 204 In earlier scenes, Patchett has already included An- has already scenes, Patchett In earlier It’s hot out, but the heat also represents Marina’s hazy the heat also represents Marina’s It’s hot out, but at 33–34, 37–38, 46, 48, 101–02. at 101–02. at 101–02. at 10, 21–22. at 2–4, 25, 29–30. 8, 10, 12, 18, at 101–02. at 29–30, 43–45. at 101–02. 200 ATCHETT ATCHETT 203 Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. P P Id. Id. Id. Id. The heat is also evocative of fever. Anders died of fever. The heat is also evocative of fever. woven together within the All of these aspects are seamlessly Further, the heat represents the seemingly impossible task that represents the seemingly impossible Further, the heat However, Marina’s individual state of mind also colors that ex- also colors that state of mind Marina’s individual However, 209. 210. 211. 212. 203. 204. 205. 206. 213. 207. 208. 198. 199. 200. 201. 202. overarching framework of objective correlative, to create a physical overarching framework of objective dialogue. and emotional backdrop for the Marina is trying to accomplish: Marina is trying 2013] clouding. the vision BUTLER’S CUPBOARD INSIDE THE LOOK A perience. 467 state of mind. \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 27 28-OCT-14 9:35 zon jungle and bringing him back to civilization alive. him back to civilization zon jungle and bringing adopted Amazo- the book, Dr. Swenson and her through most of the release of the research. Ma- nian tribe are bent on preventing oppressive, just as the heat is rina’s tasks are overwhelming and overwhelming and oppressive. all might experience moment-by-moment in the heat. in moment-by-moment experience all might his that Marina is grieving has established letters and ders’s feverish the reasons she endures is one of the fact, finding Anders death; in jungle. sweltering Mariana is using Lariam. minds readers that clouds her vision. mops sweat from her face. her head” turns “soft as the sun” works “into her brain, unloosening “soft as the sun” works “into her her head” turns its coils.” charged with doing what Anders died trying to do: bring back Dr. what Anders died trying to charged with doing results. Swenson’s research 35568-nys_69-2 Sheet No. 60 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 60 35568-nys_69-2 35568-nys_69-2 Sheet No. 60 Side B 10/28/2014 12:36:12 RAITOR , T 216 OTHING Readers expe- N 219 CTAVIAN Moreover, readers feel O Rather they are “floating 222 218 IFE OF 220 L 3 (2006). Octavian does not use scientific 217 It is also a description of the char- a description of It is also ARTY P 214 And yet, readers feel a strain between OX STONISHING note 15. P 221 A HE HE supra T note 216, at 3. 2. Voice and Perspective , I: T supra , For instance, in the National Book Award-Winning, in the National For instance, OLUME NDERSON 215 , Octavian begins his story with: , Octavian begins at 3. , V Wynne-Jones, NDERSON See id. Id. Id. See id. See id. M.T. A A See See id. TO THE ATION N Octavian’s eighteenth century world is fantastical to readers be- Octavian’s eighteenth century world in Octavian’s life. They Readers also sense the subtle tension Objective correlative is not merely a description of a scene, set of a scene, merely a description correlative is not Objective 217. 218. 219. 220. 221. 222. 214. 215. 216. I was raised in a gaunt house with a garden; my earliest recol- gaunt house with a garden; my I was raised in a lights in the apple-trees. lections are of floating flame rising behind the house, orbs of I recall, in the orchard climbed, spir- boughs and branches; they through the black my hand flickered out; my mother squeezed ituous [sic], and stood near the door to the ice-chamber. with delight. We clad in frock- lit bubbles of gas on fire, By the well, servants coats of asbestos. some height, and gardens stood a wall of Around the orchard curiosity and to keep us all designed to repel the glance of idle for freedom; though that, of from slipping away and running course, I did not yet understand. itself to nothing. How doth all that seeks to rise burn cause it is fantastical to Octavian. he mentions the servants, the sense his privileged status when orchard, and the gardens. 468 NYU ANNUAL SURVEY OF AMERICAN LAW or chain of events. of objects, [Vol. 69:441 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 28 28-OCT-14 9:35 terms to describe the lights in the trees. terms to describe the lights in the the limits on his freedom when he Octavian’s privileged status and designed . . . to keep us all from mentions “a wall of some height, slipping away and running for freedom.” The Astonishing Life of Octavian Nothing, Traitor to the Nation, Volume I: of Octavian Nothing, Traitor to the The Astonishing Life The Pox Party acters’ response to these things as seen through the character’s eyes the character’s things as seen through to these acters’ response narrator’s relayed in the life and in the character’s at that moment unique voice. lights” and “orbs of flame” that climb “spirituous.” lights” and “orbs of flame” that climb rience the wonder that the boy feels for his own world; that of an rience the wonder that the boy intelligent eighteenth century child. 35568-nys_69-2 Sheet No. 60 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 60 35568-nys_69-2 35568-nys_69-2 Sheet No. 61 Side A 10/28/2014 12:36:12 230 That “Ice- omits 228 226 It also conveys that the It also conveys 229 It is the conveyance of Octa- conveyance of It is the note 180 (discussing how little details 225 224 The Girl with the Dragon Tattoo supra note 216, at 3. 3. of Detail Touches Roessner, Octavian’s mother squeezes his hand. Octavian’s mother supra , 227 see also 223 at 3; NDERSON A See id. See id. Id. See id. See id. See id. See id. See Specific details are all part of the subtle psychological picture all part of the subtle psychological Specific details are In contrast, Steig Larsson’s Thus Octavian’s description of the house where he is raised is where he is raised of the house description Thus Octavian’s 229. 230. 223. 224. 225. 226. 227. 228. The Agency for Industrial Assistance was a project that was The Agency for Industrial Assistance by representatives of backed by the state and administered The AIA obtained govern- about a dozen big Swedish firms. of projects initiated in agree- ment guarantees for a number Poland and the Baltics. The ment with the governments in LO, also joined in as a Swedish Trade Union Confederation, in the East would be guarantor that the workers’ movement the Swedish model. In the- strengthened as well by following that built on the principle of ory, it was an assistance project was supposed to give the re- offering help for self-help, and it to restructure their econo- gimes in the East the opportunity that Swedish companies mies. In practice, however, it meant in and establishing them- would get state subventions for going in objective correlative. For instance, in the passage above the many For instance, in the passage in objective correlative. he lives. lot about Octavian and where details tell us a 2013] situation Octavian’s regarding right quite is not something that BUTLER’S CUPBOARD INSIDE THE LOOK A of the glance to repel is also “designed wall that the learning upon idle curiosity.” 469 a house. a description of not just scenic details in the following passage: \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 29 28-OCT-14 9:35 vian’s existence, of the story’s conflicts, the central question of the the central question conflicts, of the story’s vian’s existence, of mind. Octavian’s state story, and like a butter churn in the kitchen can help establish that the story takes place in like a butter churn in the kitchen can colonial America and how the mere mention of the Eiffel Tower will call up a very specific image for the reader). gives readers a sense that Octavian is young and that he and his sense that Octavian is young and gives readers a a loving relationship. mother may have two share a sense of wonder regarding the lights in the trees. of wonder regarding the lights two share a sense house” and “frock-coat” are two small hints indicating that the story are two small hints indicating house” and “frock-coat” occurs in the past. 35568-nys_69-2 Sheet No. 61 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 61 35568-nys_69-2 35568-nys_69-2 Sheet No. 61 Side B 10/28/2014 12:36:12 , EE L note , Jan. 10, supra Tattoo, , Marina is ORKER Y 23 (2008). Rifkind, EW N During a real-life During HE ATTOO but see 232 T T , State of Wonder 233 RAGON The Girl with the Dragon Tattoo The Girl with the Dragon D Man of Mystery http://www.newyorker.com/arts/critics/at Thus, one would expect her to feel Thus, one would expect her to 235 IRL WITH THE G (Oct. 21, 2008) (book review), http://bnreview. note 190, at 2–4, 8, 10, 12, 18, 25, 29–30. note 232 (stating that the book as a whole contains note 232 (stating that the book as a whole (Mar. 15, 2009), http://leegoldberg.typepad.com/ available at Donna Rifkind, HE IFE T COM . supra , 4. Coherent Details Naturally L Joan Acocella, supra , S It is hot. ’ but see EVIEW 234 R ARSSON see also RITER L ; 231 ATCHETT P OBLE Acocella, N TIEG : A W See id Cf. See See id. See id. S Moreover, the manner in which the heat affects her also Moreover, the manner in which ND A 236 Marina’s heat, Octavian’s lights, and Anna’s train station are lights, and Anna’s train Marina’s heat, Octavian’s This passage is not the way a person experiences a scene in real a scene a person experiences is not the way This passage 232. 233. 234. 235. 236. 231. selves as part owners in companies in Eastern European in Eastern in companies owners as part selves countries. OLDBERG ARNES large/2011/01/10/110110crat_atlarge_acocella?currentPage=all&mobify=0 (stat- large/2011/01/10/110110crat_atlarge_acocella?currentPage=all&mobify=0 where one character relates informa- ing that the book opens with a long passage tion to another); 2011, at 70 (book review), barnesandnoble.com/t5/Reviews-Essays/The-Girl-with-the-Dragon-Tattoo/ba-p/ that Larsson withholds just enough 686 (praising the book and stating information). a_writers_life/2009/03/the-girl-with-the-dragon-tattoo.html (complaining about a_writers_life/2009/03/the-girl-with-the-dragon-tattoo.html the “numbingly dull” backstory in the book as a whole); 232. dumps of unnecessary detail); Lee Goldberg, dumps of unnecessary detail); Lee Goldberg, G B not simply devices forced into these scenes. They are natural parts forced into these scenes. They not simply devices and it seems fitting that they are of the scene. They belong there, manner in which these details part of the scene’s unfolding. The in unfold also seems natural. For instance, 470 NYU ANNUAL SURVEY OF AMERICAN LAWtalking in a vacuum. simply a head life. It is [Vol. 69:441 in the Amazon. \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 30 28-OCT-14 9:35 makes sense. Marina wipes her face because the sweat is getting in makes sense. Marina wipes her face the heat. So in revealing Marina’s state of mind, Patchett makes use the heat. So in revealing Marina’s a logical part of the setting. of scenic elements that are already heat affects Marina in her given Readers specifically see how the state. conversation with another person, one might notice that person’s might notice that person, one with another conversation cold, dry, Particularly hot, clothing choices. gestures, or unique tics, clothes are If one’s the conversation. weather might affect or rainy dinner, that fact one ate the wrong thing for uncomfortable or is a distinct smell during the conversation. If there might be present of mind during be distracted by it. One’s state in the air, one might jumps to the fore- will shape which of these details the conversation the above is just to the forefront they will. Instead, front, but jump dump full of back-story. an information 35568-nys_69-2 Sheet No. 61 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 61 35568-nys_69-2 35568-nys_69-2 Sheet No. 62 Side A 10/28/2014 12:36:12 , 238 242 note supra , Rosie’s fam- 244 , http://www.holly Seattle mist shrouds EPORTER 245 R (Netflix release Aug. 1, 2014). Light catches a profile. Light catches a could also be conveyed by could also (AMC television broadcast Apr. The Killing: Season Two (AMC television broadcast June 2, 241 Seattle and the Rain: Inside The Killing OLLYWOOD (AMC television broadcast Apr. 1, 2012 The main characters are two po- The main characters H note 237; HE 237 T , (AMC television broadcast June 17, 2012). supra State of Wonder (AMC television broadcast Apr. 3, 2011 through (AMC television broadcast Apr. 3, 2011 , The Killing: Season Four , the climate of Seattle is used to create an , the climate of (AMC television broadcast Apr. 3, 2011). The Killing: Season Three Occasionally, the fog rolls back, and a secret is Occasionally, the fog rolls back, The Killing: Ghosts from the Past note 239. note 239. 246 , The Killing: Season Two 248 The Killing But the sun never shines quite enough for the whole But the sun never shines quite 247 The Killing: What I Know See supra See id. See id. See id. See id. See id. See supra See, e.g. The Killing: Season One The Killing: Pilot The Killing: Season One (Feb. 29, 2012), http://www.youtube.com/watch?v=7bvCeNwoRJs (dis- (Feb. 29, 2012), http://www.youtube.com/watch?v=7bvCeNwoRJs Voices punctuate the darkness. Voices punctuate This dark back-drop accentuates the mystery. This dark back-drop The nighttime scenes sometimes take place in a car out in the sometimes take place in a The nighttime scenes 240 In a different setting, the frustration, haziness, and impossibil- frustration, haziness, setting, the In a different UBE see also The Killing: TV Review 248. 240. 241. 242. 243. 244. 245. 246. 247. 237. 238. 239. 243 T 239 OU woodreporter.com/review/killing-tv-review-171764 (last visited Jan. 26, 2013) (dis- woodreporter.com/review/killing-tv-review-171764 cussing the dark and gray setting); AMC, 22, 2012) (revealing that the victim’s biological father was not Stan Larsen, the 22, 2012) (revealing that the victim’s biological father was not Stan Larsen, man married to her mother). cussing the role that that rain plays in the show). cussing the role that that rain plays in effective objective correlative. effective objective June 19, 2011); through June 17, 2012); 2013 through Aug. 4, 2013); Y The daytime scenes are often dark and cloudy, as Seattle actually are often dark and cloudy, The daytime scenes is. characters in the see the faces of the mystery Viewers strain to car. 2013] some had used Patchett If instead, her vision. clouding and her eyes BUTLER’S CUPBOARD INSIDE THE LOOK A a wa- face like her down sweat pouring about analogy overwrought of the interruption like an unnatural would have seemed terfall, it New York about the onto a tangent Patchett had deviated scene. If 471 out of place. would seem then the passage City subway, in by the heat ity conveyed \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 31 28-OCT-14 9:35 televi- the right lens. In the murder-mystery rain if viewed through sion show, rain. revealed. unfold until the final episode of truth regarding Rosie’s death to Season Two. lice officers investigating the murder of a teenage girl, Rosie. the murder of a teenage lice officers investigating ily, her teacher, her friends, the police officers themselves, and the her friends, the police officers themselves, ily, her teacher, secrets. city’s politicians are all hiding dark these secrets . 237; 35568-nys_69-2 Sheet No. 62 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 62 35568-nys_69-2 35568-nys_69-2 Sheet No. 62 Side B 10/28/2014 12:36:12 at 16. Id. The Court was deter- The Court was 250 . Petitioner’s Brief on the Merits, note 250, at 6–13. See Objective correlative developed supra 251 , the state effectively elicited details at , the state effectively note 25, at 94, 100, 105 (encouraging attorneys to seek note 25, at 94, 100, 105 (encouraging supra 1. of Facts and Testimony In the Statement 249 Eyster, Johnson, 333 U.S. at 11–12. The court did find that a magistrate Brief for the United States, at 15, 17. For an explanation of the term “exigent circumstances,” see at 15, 17. For an explanation of the term B. in Legal Narratives Correlative Objective Effective In contrast, probable cause exists where “‘the In contrast, probable cause exists where facts and circumstances Cf. See See That use of objective correlative paints a picture of proba- That use of objective correlative Johnson v. United States Johnson v. United Id. 252 In both litigation narratives and appellate briefs, the use of ob- briefs, the use and appellate litigation narratives In both In Although attorneys have less liberty with respect to detail than have less liberty with respect Although attorneys See id. 249. 250.v. United States, 333 U.S. 10 (1948) Brief for the United States, Johnson 251. 252. jective correlative does not merely create a vivid and evocative state- a vivid and evocative merely create does not jective correlative and in the argument significant facts facts; it highlights ment of cor- I examine objective as well. Below, a backdrop there serves as then in the argument. of facts and first in the statement relative a. Graceful Weaving example of a well-written objective correla- out physical details). For an additional Coar v. Natl. Union Fire Ins. Co., 19 tive, see Original Brief of Plaintiff-Appellant, 1993 WL 13101437. Although the F.3d 247, 248 (5th Cir. 1994) (No. 92-357), to removing the case to the bank- plaintiff did not win its jurisdictional challenge description of the airplane crash serves as ruptcy court, Coar, 19 F.3d at 248, the child’s resulting post-traumatic stress. In an effective objective correlative for the the attorneys compiled a similarly another case involving an industrial accident, vivid statement of facts that evokes emotion. 472 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:441 appellate attorneys attorneys can seek detail and fiction writers, trial effective objective details to craft a similarly can use the record’s correlative. the U.S. Supreme those details into its brief to trial and weaved an objective correlative Court, creating \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 32 28-OCT-14 9:35 at trial is gracefully weaved into the statement of facts in the at trial is gracefully weaved into brief. ble cause, which is a totality of the circumstances determination. ble cause, which is a totality of mining whether a drug smell could support probable cause and exi- mining whether a drug smell could gent circumstances for a search. Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) (No. 98-0184), 1998 WL 34193041. Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) (No. 329), 1947 WL 44223. could have found probable cause for the search under the circumstances. could have found probable cause for the justifying a search without a war- However, it did not find exigent circumstances rant. Kentucky v. King, 131 S. Ct. 1849, 1853–54 (2011). There, the Court explained the need to prevent the destruction of evi- that exigent circumstances can include dence. within their (the officers’) knowledge and of which they had reasonably trustwor- thy information (are) sufficient in themselves to warrant a man of reasonable cau- v. tion in the belief that’ an offense has been or is being committed.” Brinegar United States, 338 U.S. 160, 175–76 (1949) (citation omitted). 35568-nys_69-2 Sheet No. 62 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 62 35568-nys_69-2 35568-nys_69-2 Sheet No. 63 Side A 10/28/2014 12:36:12 258 Readers 254 it prepares 257 255 The writer first lay- writer The 256 253 United States v. Pollard, 466 F.2d 1 note 250, at 8. but cf. supra at 8–10the odor of opium in the hallway). (discussing Johnson, 333 U.S. at 16 (basing the probable cause decision largely Johnson, 333 U.S. at 16 (basing the probable at 7. at 7. See id. Id. Cf. Id. Id. The fact that Johnson sleeps in her business office might seem The fact that Johnson sleeps in her The first question about the owner is planted when the writer about the owner is planted when The first question Readers may question the hotel further when next the writer the hotel further when next Readers may question 253. 254. 255. 257. 258. 256. Brief for the United States, The door to the room had three glass panels, each about eight The door to the room had three on them. Petitioner was inches wide, which had a silver coating from inside the room, but a able to see through the panels see into the room, except that person on the outside could not see through it.” “a little bit in one corner you can a little odd. Moreover, the one-way glass is more unusual, and it a little odd. Moreover, the one-way that Johnson could hide some- feels a little sinister. It’s not merely readers might be uncomfortable thing in the room. Rather, many them when they cannot see her. with the idea that she could see she is the owner of the hotel, That, combined with the fact that Although, these facts could not lends Johnson an overlord quality. own, they are consistent with the establish probable cause on their 2013]most probative the to accept readers primes scene fully-fleshed The BUTLER’S CUPBOARD INSIDE THE LOOK A finally divulged. it is when of evidence piece 473 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 33 28-OCT-14 9:35 on the opium smell rather than any other factor); United States v. Boyd, 910 F. on the opium smell rather than any other no probable cause in case where a young Supp. 2d 995 (W.D. Mich. 2011) (finding transient let officers into a hotel room); ers in details that would not be probative by themselves but that are by themselves but not be probative that would ers in details Like- the officers’ mind. suspicion in that likely planted all seeds primes discomfort that an unidentifiable may feel wise, readers the deter- smell. Since the opium the evidence regarding them for could review, the Court the circumstances is a totality of mination These little seeds in making its determination. consider all of these on its own. together, since each is insufficient seeds are to be taken Europe Hotel” and readers that Johnson owns “the begins by telling guests of the hotel as “tenants.” describes the thirty-five might wonder whether people with a transient lifestyle might live in people with a transient lifestyle might wonder whether happens at the have some questions about what the hotel and may own, little detail is too small on its hotel. While this that follow. the more probative details the readers to accept and . . . sleeping Johnson’s “business office tells readers about glass. room,” a small room that had one-way (10th Cir. 1972) (reasoning that the transient lifestyle of the defendant made him (10th Cir. 1972) (reasoning that the transient more likely to flee than long-time resident defendants and thus provided evidence of exigent circumstances). 35568-nys_69-2 Sheet No. 63 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 63 35568-nys_69-2 35568-nys_69-2 Sheet No. 63 Side B 10/28/2014 12:36:12 259 260 at 8–9 (citations omitted). at 10–11. Id. Id. The delay and shuffling might cause readers to wonder The delay and shuffling might enough, but, as they unfold Each of these details alone is not The opium smell was the heart of the case, and the writer wove was the heart of the case, and the The opium smell with the smell in weaving in However, the writer did not stop Those more probative details regarding the drugs are then the drugs are details regarding probative Those more 259. 260. [He] rapped on the door and identified himself and, after [He] rapped on the door and shuffling or noise in the some delay during which “some the door and admitted room” was heard, petitioner opened “I want to talk to you them. . . . Belland . . . told petitioner, here”. [sic] Petitioner de- about this opium smell in the room . . [A]gent Graben discovered nied the existence of the smell . . which had been “thrown concealed beneath the bedcovers, ointment jar containing 85 back towards the wall,” a one-ounce smoking with no marks or grains of opium prepared for labels . . . . [Detective] Belland also testified that Odekirk[, a drug-using testified that Odekirk[, Belland also [Detective] opium, “because was smoking knew that someone informant] . and . . .” Belland . . the hallway . smell it right in he could . . . . [Belland . . . entered the hotel narcotic agent Giordano to ascertain the manager of that hotel went in to interview] anyone that she might give [the police] on what information [he] came up in there at that time. As would be using narcotics It led [him] a strong odor of opium smell. the stairs there was As [he] 1, the room of the defendant. right to Room Number coming out the door there was a strong odor stood in front of and the door. between the sill whether Johnson was either out of sorts or hiding something. whether Johnson was either out smell, they all convey a totality of naturally in combination with the cause. Through objective the circumstances supporting probable correlative readers sense Belland’s state of mind and feel his initial discomfort along with his growing suspicion that is eventually con- it into the brief naturally by walking readers through Detective Bel- by walking readers through it into the brief naturally First there was the inform- land’s shoes as he smelled the opium. the stronger smell seeping from ant’s tip, then the smell, and then the door. of the circumstances. Once the details that amplify the totality detective smells the opium: 474 the prime these facts Thus, follow. that details probative more NYU evidence. subsequent the to believe reader ANNUAL SURVEY OF AMERICAN LAW in this passage: conveyed [Vol. 69:441 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 34 28-OCT-14 9:35 35568-nys_69-2 Sheet No. 63 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 63 35568-nys_69-2 35568-nys_69-2 Sheet No. 64 Side A 10/28/2014 12:36:12 266 267 , Child Protective Instead, the scene pro- Instead, the scene 264 In re R.D.G. The details appear in the brief The details appear note 250, at 9–10. 265 supra at 6–13. at 6–13. at 6–13. Each of these details in a vacuum could be dismissed. a vacuum could these details in Each of Readers do not get a list of items, such as, “acting on a get a list of items, such as, “acting Readers do not Johnson v. United States, 333 U.S. 10, 14–17 (1948). 261 263 readers cannot help but feel Belland’s overall state of overall state feel Belland’s cannot help but readers See id. See id. See generally id. See id. Id. See 262 Objective correlative has a greater air of authenticity when the Objective correlative has a greater a party’s voice to illustrate a For example, a lawyer can use These naturally occurring details paint a picture of probable occurring details paint a picture These naturally Notice also, the details are woven into the scene moment-by- are woven into the details Notice also, 261. 262. Brief for the United States, 263. 264. 265. 266. 267. b. Perspective and Voice relay objective correlative in “characters,” the witnesses and clients, narratives are bookended by the their unique voice. At trial, these legal explanation will be in the attorney. On appeal, although the attorney will better preserve that voice of an attorney-narrator, the court by sampling the unique same authenticity from the trial to relay facts. voices of the clients and witnesses in a child protection case, party’s cartoonish approach to violence; on the parent’s abilities to such an illustration can have a bearing in care for the child. For instance, cause. Although the U.S. Supreme Court found that the police cause. Although the U.S. Supreme for the search due to the lack of should have obtained a warrant noted that a magistrate might exigent circumstances, the Court such a warrant. have found probable cause to issue 2013] other smell, opium on the centers legal issue the Although firmed. BUTLER’S CUPBOARD INSIDE THE LOOK A of Belland’s the basis form the scene in that unfold details little suspicion. 475 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 35 28-OCT-14 9:35 However, in combination with the shuffling, delay, and opium delay, and with the shuffling, in combination However, smell, from a wide-shot of the story itself and lead us organically as a part room itself. to the room and then into the of the hotel up mind and think, “well, of course.” think, “well, of mind and moment. to discover ap- Belland went to the hotel tip from an informant, a bedroom, a one- tenants, an office used as proximately thirty-five and an opium smell.” way glass window, Services sought to uphold a judgment for termination a mother’s Services sought to uphold a judgment gresses in much the same way that it must have for Belland, and the the same way that it must have for gresses in much making read- in along the way in a natural fashion details are woven they are there. ers feel as though 35568-nys_69-2 Sheet No. 64 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 64 35568-nys_69-2 35568-nys_69-2 Sheet No. 64 Side B 10/28/2014 12:36:12 Wearing a cowboy cos- Wearing a cowboy 271 In Mr. Panetti’s petition to the In Mr. Panetti’s 270 The state’s brief quotes the mother: the brief quotes state’s The This small chain of events is filtered chain of events This small 268 R.D.G., No. 06-00-00030-cv, 2001 WL 118220 (on 269 , where the Supreme Court was determining , where the Supreme In re R.D.G., No. 06-00-00030-cv, 2001 WL 118220, at *1 (Tex. App. Feb. R.D.G., No. 06-00-00030-cv, 2001 WL 118220, In re He made unintelligible comments . . . during general voir dire: He made unintelligible comments issues when examining He became fixated on irrelevant Similarly, the events are relayed through a schizophrenic’s lens are relayed through a schizophrenic’s Similarly, the events 268. 269. Appellee’s Brief, 270. 551 U.S. 930 (2007). 271. Brief of Petitioner-Appellant at 11–13, 551 U.S. Panetti v. Quarterman, Panetti v. Quarterman Mr. Panetti applied for over 200 subpoenas . . . . [He said,] “I for over 200 subpoenas . . . Mr. Panetti applied and I never subpoenaed turned the Pope loose and J.F.K. need a subpoena. He’s right them, but Jesus Christ, he doesn’t that.” here with me, and we’ll get into me, sure but not much. Be “The death penalty doesn’t scare I’ve got my Injun beliefs as killed, power line, when I was a kid. to my sister.” . . . a shaman. I sent the buffalo horn see how the belt buckle is The Court: Mr. Panetti, . . . I don’t the relevance to me, I’m relevant . . . [and] if you can’t explain you explain to me how the going to sustain the objection. Can in this case? belt buckle is relevant to any issue It has to do with jailhouse Mr. Panetti: Yes, I can, Your Honor. men would do for a belt religion. It has to do what some between a rodeo hand buckle. It has to do with the difference with my whole outlook and and a buckaroo poet. It has to do the punishment stage. this will come up, God forbid, in 476 son. to her rights parental NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:441 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 36 28-OCT-14 9:35 “[She] testified, ‘Pow! Pow! Pow! I haul off and knock him out the him out knock off and Pow! I haul Pow! ‘Pow! testified, “[She] of the door.’”other side below: represented himself as indicated tume, Mr. Panetti witnesses: through the mother’s unique perspective, and her word choices es- and her word perspective, the mother’s unique through seems perspective. “Pow!” conveys that unique voice that tablish a is there, the grammar the comics. From straight from like a word chain of Thus, the itself is hyperbolic. and the action questionable, child-like view of the mother illustrates her events filtered through and reflects an inability to parent. her own violence in could be put to had been sentenced to death whether a man who incompetent. death while he was voice for a par- attorney sampled Mr. Panetti’s court, his appellate objective correlative. ticularly unique 13, 2001). file with author). 930 (2007) (No. 06-6407), 2007 WL 609763. 35568-nys_69-2 Sheet No. 64 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 64 35568-nys_69-2 35568-nys_69-2 Sheet No. 65 Side A 10/28/2014 12:36:12 By describ- 274 , the case that ultimately http://law2.umkc.edu/faculty/ Segregation itself is an objective Segregation itself The physical separation and lesser available at The objects are not directly con- The objects are 275 276 273 272 Brown v. Board of Education Brown v. Board of Brown v. Bd. of Educ., 349 U.S. 294 (1955). Id. See id. Id. see also Panetti’s belt buckles and buffalo horns serve as objective cor- serve as objective buffalo horns belt buckles and Panetti’s In contrast, objective correlative is filtered through the edu- correlative is filtered through In contrast, objective 276. While working on this Article, the author visited Thomas Jefferson’s 272. 273. 274. 275.v. Bd. of Educ. of Topeka, 139 F. Transcript of Oliver Brown, Brown Before religion, when you got religion, prior religion, church religion, prior religion, you got when religion, Before in come church from the have witnesses going to I’m member, read that buckle, on his knees and Bob got and Chaplain their people go out of this buckle and read Ranger Cummings, look at your buckle make sure they rodeos cowboys way. At you looking at it. without Q: [W]hat is the condition . . . between your residence and Q: [W]hat is the condition . . . boards the bus? [the area] where your daughter amount of railroad tracks A: Well, there [is] a considerable from the Rock Island there; they do a vast amount of switching home until she gets to Yards and from the time she leaves has to pass all of those switch Quincy . . . to board the bus, she of traffic there morning and tracks . . . ; there is a vast amount There [are] no provisions evening when she goes and returns. Monticello estate in Charlottesville, Virginia, and was struck by the fact that the Monticello estate in Charlottesville, Virginia, and was struck by the fact that slave quarters were kept under the house hidden by the hill. If a slave owner truly believed that it was right to keep human beings enslaved, then one wonders why they would need to be hidden under the house. Supp. 468 (D. Kan. 1955) (No. T-316), (last visited July 23, projects/ftrials/brownvboard/oliverbrowntestimony.html 2014); 2013]BUTLER’S CUPBOARD INSIDE THE LOOK A 477 that represent his a random set of objects relative. He provides of mind. schizophrenic state \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 37 28-OCT-14 9:35 conditions symbolize prejudice and inequality. Rather than using conditions symbolize prejudice Brown—awords like “prejudice” or “inequality,” black father whose school—testifieddaughter was a student in a segregated about life in the scene itself: correlative for discrimination. nected to anything coherent or relevant to his case. nected to anything ing the objects in Panetti’s own voice, the attorney more vividly in Panetti’s own voice, the attorney ing the objects he was incompe- psychological state to show that captures Panetti’s tent to stand trial. elicited by the Brown through the testimony cated voice of Oliver trial attorney in integration. resulted in school 35568-nys_69-2 Sheet No. 65 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 65 35568-nys_69-2 35568-nys_69-2 Sheet No. 65 Side B 10/28/2014 12:36:12 278 283 available Filtered through Those conditions 282 279 His word choices “consider- His word choices note 275. note 275. 277 284 281 note 250. For another great example of supra supra Then in the statement of facts, after supra 285 , discussed above, the trial attorney elicited , discussed above, the trial attorney Not only does Brown relay scenes from his daily life, relay scenes from his daily Not only does Brown 280 Transcript of Oliver Brown, Transcript of Oliver Brown, See id. See id. See id. See id. See id. See See Not only will quotes with specific word choices present the ob- Not only will quotes with specific The trial attorney’s questions, such as this one and various such as attorney’s questions, The trial 278. 279. 280. 281. 282. 283. 284. (1954). Although the case was not Brown v. Bd. of Educ., 349 U.S. 294 285. Brief for the United States, 277. United States v. Johnson at all made for safety precautions to protect those children those to protect precautions for safety made at all at all. thorough-fares these passing http://law2.umkc.edu/faculty/projects/ftrials/moussaoui/zmspencer.html successful at trial, a trial attorney who fleshes out the record well enough to win on successful at trial, a trial attorney who fleshes appeal has succeeded. an objective correlative with touches of detail, see the opening statement of the an objective correlative with touches of one of the individuals involved in prosecutor in the case of Zacarias Moussaoui, a planning the attacks of September 11. The attorney sets up a contrast between peaceful morning and the terrorist attack that followed. Trial Transcript, United States v. Moussaoui, 282 F. Supp. 2d 480 (E.D. Va. 2003) (No. 01-455-A), at (last visited July 23, 2014). Thus, the trial attorney established a well-fleshed narrative on the established a well-fleshed Thus, the trial attorney successful attorneys and parties were ultimately record, and the the inher- Court of the United States declared when the Supreme segregated schools. ent inequality of c. Detail voice and viewpoint, but specific jective correlative in a party’s a more vivid objective correlative. touches of detail will also create In 478 NYU ANNUAL SURVEY OF AMERICAN LAW were well-chosen. about the scene, questions other open-ended [Vol. 69:441 of the conditions. a description They elicited an educated voice. but he does so in such details from the officer. \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 38 28-OCT-14 9:35 describing the discovery of the opium, the writer includes addi- describing the discovery of the credibility to the story. The attor- tional details that lend an air of ney writes: able amount,” “vast amount,” “provisions,” and “safety precautions” amount,” “provisions,” and “safety able amount,” “vast that bigoted and are in contrast to the caricature are sophisticated to justify separating the races. society had drawn Brown’s voice, the details paint a total picture of unfairness. details paint a total picture Brown’s voice, the say more about prejudice and inequality than the words “prejudice” and inequality about prejudice say more let the wit- the attorney could. Moreover, themselves or “inequality” ness speak. 35568-nys_69-2 Sheet No. 65 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 65 35568-nys_69-2 35568-nys_69-2 Sheet No. 66 Side A 10/28/2014 12:36:12 The 286 287 note 25, at 87, 94, 100, supra 307, 308–15 (2000). . L.J. also seem quite natural. They note 250, at 11. note 250, at 11 (citations omitted). RB U supra supra Johnson 2. Argument ORDHAM F From Free Trade to Prohibition: A Critical History of the note 25, at 28; Eyster, , 28 So while the tray is not a part of the probable So while the tray supra 289 , note 287. China was and remains one of the world’s major remains one of the world’s China was and OBBINS R 288 Again, the reference to “yen shee” and “yen hocks” make Again, the reference to “yen shee” See supra Cf. 290 Skillful use of objective correlative in the statement of facts not Skillful use of objective correlative The details above from The little details make the reader trust the writer more. make the reader trust the writer The little details 290. Brief for the United States, 288. 289. Alfred W. McCoy, 286. Brief for the United States, 287. [A]gent Graben discovered concealed beneath the bedcovers, beneath concealed discovered Graben [A]gent a one-ounce the wall,” towards back “thrown had been which smok- prepared for 85 grains of opium jar containing ointment They opium pipe. and a makeshift no marks or labels, ing with of yen shee (partially a quantity under the covers also found metal brass tray, a on a Chinese opium) lying, loose smoked for (needles used and two yen hocks a metal funnel, lamp base, quantity of opium jar). An additional small dipping into an yen[which was in the room. ] shee was found in a suitcase 105. Modern Asian Opium Trade only paints a more, vivid, evocative, and ultimately accurate picture, only paints a more, vivid, evocative, d. Naturally Coherent Details is Johnson’s “sleeping room,” so belong in this setting. The room previous portion of the facts, the the bedcovers belong there. In the opium smoke. Thus, it also seems attorney had written about the “stash” of opium, but instead there natural that there was not just a opium along with a pipe and yen was a tray full of partially smoked since Johnson lived in a hotel. hocks. Even the suitcase seems fitting opium by transporting it in It makes sense that she would conceal and out with a suitcase. 2013]BUTLER’S CUPBOARD INSIDE THE LOOK A 479 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 39 28-OCT-14 9:35 opium producers. as a whole. The consistent with the narrative cause, the tray seems used, like “yen shee” and “yen actual drug-trade names are hocks.” believable. the narrative seem consistent and exact way that the bed covers were thrown does not seem particu- bed covers were thrown does exact way that the recount them but the fact Agent Graben could larly probative, the picture come reliable. Moreover, it makes makes him seem also make the pic- about the jar and the pipe alive. All the details is the Chinese and credible. Additionally, there ture more vivid brass tray. 35568-nys_69-2 Sheet No. 66 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 66 35568-nys_69-2 35568-nys_69-2 Sheet No. 66 Side B 10/28/2014 12:36:12 293 Thus, by Explana- (2011). 299 291 The chain of RITING 296 Doe v. United Air- W 295 EGAL did not question the L , 294 Floyd IMON S Analysis is the portion of the is the portion Analysis Indeed, a phobic flyer may get 292 297 HEILA . & S R , J plaintiffs’ fear palpable through objective cor- plaintiffs’ fear palpable through EUMANN K. N Floyd at 20. , 499 U.S. 530. case involved a flight from Miami, Florida to the Ba- case involved a flight from Miami, at 542. case and contains an objective correlative. ICHARD Id. Id. Id. See id. See id. See id. Floyd R Rather, it found that this fear did not provide a basis for Rather, it found that this fear Floyd This explanation of authority serves a miniature narrative of This explanation of authority serves The case law used in an explanation can itself include some in an explanation can itself The case law used pro- demonstrate that the Warsaw Convention For example, to 298 , United Airlines relied on a case where relief was denied relied on a case where relief , United Airlines Floyd 299. 292. 293. 294. Airlines, 73 Cal. Rptr. 3d 541 Appellant’s Opening Brief, Doe v. United 295. 296. 297. 298. 291. The aircraft lost an engine. The hamas. Shortly after takeoff the and then lost a second engine crew turned back toward Miami plane was quickly losing alti- and then the third engine. The that they would have tude and the crew advised the passengers Ocean. The crew was able to to ditch the aircraft in the Atlantic in Miami. re-start an engine and land safely (Cal. Ct. App. 2008) (citing Eastern Airlines v. Floyd, 499 U.S. 530 (1991)). (Cal. Ct. App. 2008) (citing Eastern Airlines the objective correlative, and thus the details in the explanation will be and thus the details in the objective correlative, of facts. Those correlative in the statement shaped by the objective distinctions in be used for comparisons and details can then analysis. post-traumatic stress alone, in hibits recovery for 480in sup- memorandum or a in a brief argument the also shape it can NYUfollows that argument on an is based section This of a motion. port ANNUAL SURVEY OF stands for conclusion, paradigm, which organization the CREAC AMERICAN LAWbut it can conclusion, rule, analysis, and of the rule, explanation [Vol. 69:441 as well. paradigms other similar organization apply to lines for fear. despite the objective correlative \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 40 28-OCT-14 9:35 recovery under the Warsaw Convention, which only covers physical recovery under the Warsaw Convention, resulting from them. injuries and psychological distress argument where the writers compare their facts to authority facts the writers compare their facts argument where distinctions. of comparisons and and weighs the significance nervous just reading it. The Court in nervous just reading it. The Court fear. tion of the rule is the portion of the argument where the writer where of the argument rule is the portion tion of the case law. examples from provides rendering the events conveys the fear of death. 35568-nys_69-2 Sheet No. 66 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 66 35568-nys_69-2 35568-nys_69-2 Sheet No. 67 Side A 10/28/2014 12:36:12 Doe 304 Instead, United’s 302 United effectively used United effectively 303 note 294, at 2–7. supra IV. In the analysis, having already estab- In the analysis, CORRELATIVE 301 at 2. at 28–35. at 30–31. Appellant’s Opening Brief, Doe v. United Airlines, 73 Cal. Rptr. 3d 541, 547 (Cal. Ct. App. 2008) THE PROCESS OF DEVELOPING OBJECTIVE THE PROCESS OF DEVELOPING See See id. See id. See id. See The plaintiff, Doe, was a female minor who awoke on the who awoke on a female minor Doe, was The plaintiff, 300 Thus, the elements of objective correlative must still intersect of objective correlative must Thus, the elements use objective correlative to Therefore, not only can attorneys The foundation laid by this objective correlative helped United objective correlative laid by this The foundation The process of creating objective correlative is the process of The process of creating objective 300. 301. 302. 303. 304. with the legal standard. Objective correlative can be used to illus- Objective correlative can with the legal standard. are covered by the Warsaw Con- trate both psychological states that Attorneys who want to convey a vention and those that are not. objective correlative to make a psychological injury will likely need are not only psychologi- strong case. These objective correlatives more concrete and measura- cally effective, but they also establish in law. ble proof that is often preferred but they can also create “mini- effectively convey their clients’ facts, relying on the facts in other cases ature” objective correlatives by That explanation then that serve as authority in their explanation. shapes the outcome of the case. lays the foundation for analysis and 2013]for re- ground of that rejection the court’s including and relative BUTLER’S CUPBOARD INSIDE THE LOOK A fear, brief that in its demonstrated persuasively Airlines United lief, under the for recovery is not a basis how compelling, no matter physical injury. Convention without Warsaw 481 of the in the analysis facts particularly disturbing overcome case. \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 41 28-OCT-14 9:35 lished the irrelevance of fear, the attorney for United did not bur- of fear, the attorney for United lished the irrelevance aspects of this incident. row into fear-inducing airplane to find that a male passenger had placed her hand outside that a male passenger had placed airplane to find penis. his clothes on his burrowing into all of the details in a dream. This process applies to burrowing into all of the details attorney focused on the lack of cuts or bleeding of any kind, the on the lack of cuts or bleeding attorney focused arm or hand, the lack of injury to the plaintiff’s absence of bruises, of pain or discomfort. and the absence objective correlative to show that the Warsaw Convention was not to show that the Warsaw Convention objective correlative this particular kind of wrong. designed to address (“The trial court granted the motion for summary judgment, finding that Doe’s in deposition testimony established that Samson’s misconduct had not resulted any bodily injury to her within the meaning of the Warsaw Convention.”). 35568-nys_69-2 Sheet No. 67 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 67 35568-nys_69-2 35568-nys_69-2 Sheet No. 67 Side B 10/28/2014 12:36:12 to supra Introduction Burroway, note 25, at 107 Diving into the supra see also 308 Janet Burroway, 2 (2005) (“And it is the realm of REAM writer John Gardner elaborated writer John Gardner see also See On the Relation of Analytical Psychology D OU Y note 305, at 13, 114–16 (“Art comes from your HERE W supra A. The Writer’s Process , Novelist Robert Olen Butler contends that Novelist Robert Olen Butler contends note 23, at 69; ROM note 305, at 114–16. The Art of Fiction F note 19, at 89. 305 , supra UTLER , B supra supra , , , A third novelist, Orhan Pamuk, captures the objective A third novelist, Orhan Pamuk, UTLER note 119, at 301, 314, 318–19, 321; Eyster, B 307 ARDNER UTLER AMUK The flaw is not in dreaming, but in failing to fully explore The flaw is not in dreaming, but LEN See, e.g. B P G supra , O 306 The process of creating objective correlative is organic and in- objective correlative is organic The process of creating When I was still a novice fiction writer, I engaged more fre- When I was still a novice fiction 306. 308. 307. 305. OBERT to Poetry (discussing Carl Jung and symbolism). unconscious rather than that of technique or intellect that the writer seeks fic- unconscious rather than that of technique thought the poet’s images had symbolic tional truth.”). Psychologist Carl Jung Jung speaks of “compulsive artistic meaning unknown to the poet’s conscious. choices” controlled by “unconscious will.” subconscious. It comes from the white hot center of you.”); note 305, at 2 (“And it is the realm of unconscious rather than that of technique or note 305, at 2 (“And it is the realm of unconscious rather than that of technique intellect that the writer seeks fictional truth.”). R 482 of the ether from comes that dream In fiction, fiction. well as law as NYU of the re-creation is a mental dream law, the mind. In the author’s ANNUAL SURVEY OF have a those events may the details of events past. While details of AMERICAN LAW the in the present, a fictional account, type of reality than different [Vol. 69:441 look, feel, exploring the as a dream. By in our minds past exists cor- fleshes out objective storytelling smell of everything, taste, and narrative. or non-fiction in either a fiction relative likely sit down and imagining. Most writers do not volves right brain instead, they to create an objective correlative;” say, “I am going that view- through their characters and reproduce view their story point. Novelist and \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 42 28-OCT-14 9:35 what he’s written, author] begins to brood over on this idea: “[The odd tics that his over. [The author] discovers reading it over and accidental repeti- sent up to him, perhaps curious unconscious has tions of imagery.” correlative aspect of this dream when he says, “[T]he art of writing correlative aspect of this dream thoughts and sensations of the novels is the ability to perceive the landscape.” protagonists within a surrounding much bad writing tends to come from the head rather than the much bad writing tends to come heart. the dream. dream as described by Robert Olen Butler and John Gardner in- dream as described by Robert Olen those scenic details that comprise cludes an examination of all of of vividness. objective correlative; Gardner speaks the head writing.” I often quently in what Butler calls “from in detail and convey all of thought that I had to describe emotion 35568-nys_69-2 Sheet No. 67 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 67 35568-nys_69-2 35568-nys_69-2 Sheet No. 68 Side A 10/28/2014 12:36:12 , joked about these emotion-conveying , joked about 310 Since the ocean is her context for understanding Since the ocean is her context 309 Words in the Dust Words in Id. Objective correlative helped me out of a particularly tricky spot Objective correlative helped me For instance, when Song sees her first ship, she does not know For instance, when Song sees her Just as an overabundance of gestures can fall short of convey- of gestures can fall short Just as an overabundance of developing objective Fortunately for the writer, the process 309. Cathren Koehlert-Page, The Drowning Song 2 (unpublished manu- 310. [A]n odd floating reef. But it’s not made of coral or rock. It’s [A]n odd floating reef. But it’s not mass of driftwood, as big as a brown. Driftwood, it’s like a big small cay. fins, thin as an angel shell, But on top there are thin, white flapping like a sea fan. school of creatures like none I Moving about on its surface is a had ever seen. script) (on file with author). with her after the first fifteen pages. Song encounters the ship men- with her after the first fifteen pages. empathic powers she receives bits tioned above, and through her and pieces of the emotions regarding a “four-limbs” whom she calls everything, objective correlative naturally flows into the story. everything, objective correlative what it is. So she sees: 2013] the emotion. accompanied that and gestures sensations the physical BUTLER’S CUPBOARD INSIDE THE LOOK A Reedy, Trent novelist event, Program MFA College Vermont At a author of 483 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 43 28-OCT-14 9:35 gestures. “Everyone is shrugging and smiling in Reedy’s world.” He in Reedy’s and smiling “Everyone is shrugging gestures. he in rapid succession, room while, around the then walked my own all laughed. In while we and smiled repeatedly shrugged raise furrow their brows, tended to my characters fiction writing, much. Readers their eyes, and stare a little too their brows, roll having a seizure. whether my characters were might have wondered emotion itself. No can detailed description of the ing emotion, so at Frederica’s a page about how guilt gnawed one wants to read as the thoughts It boiled around in her stomach stomach like a rat. She will never for- “You stole Lana’s boyfriend. echoed in her head, while a little a horrible person, Frederica.” Finally, give you. You are deftly into the or sweating can be good if woven bit of heart-racing on their own. cannot carry the emotion scene, these sensations Once I learned about objective correlative can cure these defects. just burrow into the dream, correlative and realized that I could got a whole lot easier. Luckily, the fiction writing, while still painful, on the past few years is about a novel that I have been working sees everything through an mermaid-siren named Song who oceanic lens. 35568-nys_69-2 Sheet No. 68 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 68 35568-nys_69-2 35568-nys_69-2 Sheet No. 68 Side B 10/28/2014 12:36:12 314 313 note 309, at 17. supra 315 But she misinterprets everything. She falls in love with falls in She everything. she misinterprets But at 4–15. at 12–13. at 14–15. But she is totally wrong. His crewmates are dying of His crewmates is totally wrong. But she 311 Id. Id. Id. Id. 312 The sea-cave and Song’s reaction to all of the slimy, cold, and The sea-cave and Song’s reaction Song does not know that Sea-Eyes could not survive under not survive Sea-Eyes could not know that Song does a writer move go from there? How does Where does a writer trying to logically, “What do I do now?,” Instead of just asking Where does a writer go? To a sea-cave: 311. 312. 313. 314. 315. Koehlert-Page, I hide. It’s dark here, like my memory. It seems as though I was I hide. It’s dark here, like my memory. I see two frozen sea-glass eyes. always here. In some sandy haze in the haze is a reef. I Then drifting and floating. Somewhere no reef here. Just dark. Yes, reach out to feel it, and there is cave. Sleep in the deep bowels dark. Sleep here in the dark sea of the ocean. dark things in it are an objective correlative. These things are an dark things in it are an objective the nuances of Song’s denial, unintentional means of showing now, but I did not start by saying, grief, and guilt. I am aware of that an objective correlative for Song.” “I am going to use the ocean as having a dream and later figur- Writing objective correlative is like Each time I received a critique of ing out what the dreamt meant. again. The work is still in pro- that section, I dove into the dream and examine my work, I may ex- gress, and as I receive critiques out the details of the dream. plore the sea-cave more to flesh 484Sea-Eyes. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:441 him. him, she drowns in trying to save water. So It cannot be event without creating an anti-hero? forward from that a horrible act. seashells for Song. She committed all sunshine and of heart. I needed to preserve Song’s pureness At the same time, created by them, emotions and the sensations describe all of Song’s as an objective how I could use the ocean or even asking myself I dove into the Song’s psyche symbolically, correlative to illustrate objective correla- the process needed to develop dream. I invoked felt, tasted, and to how everything looked, tive. I paid attention the ocean at this particular mo- smelled as Song moved through Song’s world, I transcribed her ment in her life. After exploring experience moment-by-moment. \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 44 28-OCT-14 9:35 Sea-Eyes and thinks that she has to save him from the “land mad- “land from the save him has to that she thinks and Sea-Eyes into the him back crewmates by getting is killing his ness” that ocean. “land madness.” scurvy, not 35568-nys_69-2 Sheet No. 68 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 68 35568-nys_69-2 35568-nys_69-2 Sheet No. 69 Side A 10/28/2014 12:36:12 see 318 He 320 Heming- 317 323 seventeen times. seventeen note 76. 105–09 (4th ed. 2003); supra 215 (1985). Although I may ultimately Although I may RITING W 319 note 305, at 2–5 invoking (discussing Echoing this advice, Vermont Echoing this advice, EGAL IOGRAPHY However, intentionally devising 322 L supra The good writer edits; The good 324 A Farewell to Arms A Farewell , A B 316 CADEMIC A , Burroway, note 305, at 118 (warning against “over-confident” note 305, at 116 (warning against “bad from the head EMINGWAY Gardner explains that good description “is Gardner explains that good description note 23, at 37 (discussing how intellectual study cannot H That means invoking a trance and using all of That means invoking note 305, at 12–21. note 305, at 116. , 325 OLOKH supra see also supra , 321 V , supra YERS , supra supra note 19, at 13–29 how a novelist must be simultane- (explaining , , M at 114–15. at 12; UTLER UTLER UGENE B B E Objects, Artifacts, and Stuff Lecture, supra ARDNER UTLER UTLER , EFFREY G See Id. See See id. See id. Cf. B J B Cf. AMUK Developing awareness of the meaning behind an objective cor- Developing awareness of the meaning In fact, although the scene may flow from the writer’s subcon- writer’s from the flow scene may the although In fact, from others to and receive critiques The writer can self-critique 319. 322. 323. 324. 320. 321. 317. 325. 318. 316. P also the dream brain to develop story). writing”); writing). govern what the writer will include). ously naively unaware and sentimentally reflective to the point of focusing on word ously naively unaware and sentimentally of writing). choice, structure, and all the elements relative facilitates this process. 2013]BUTLER’S CUPBOARD INSIDE THE LOOK A the subcon- after process the writing to end it’s dangerous scious, In these in a first draft. the screen words onto scious spews or she is too much like he probably feel the reader will instances, 485 strange fragments of the circles about someone talk in hearing the night before. dream from Olen Butler also moments. However, Robert flag the awkward the head critiques.” warns about “from \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 45 28-OCT-14 9:35 dismiss some critiques of my own writing, each comment always of my own writing, each dismiss some critiques the dream anew, as Butler recommends. leads me to explore the scene. the senses to explore objective correlative rather than simply exploring the scene from objective correlative rather than probably result in an unnatural or the character’s point of view will heavy-handed feel. symbolic not because the writer plants symbols in it but because, by symbolic not because the writer symbols still largely mysterious working in the proper way, he forces where, little by little, as his fic- to him up into his conscious mind them and finally understand tion progresses, he can work with College of Fine Arts Professor Rita Williams-Garcia advised me sev- Arts Professor Rita Williams-Garcia College of Fine the character, and back into the scene, back inside eral times to go really feels and sees. think about what the character way revised the last chapter of the last chapter way revised advises writers to explore their work in a “moment-to-moment sen- explore their work in a “moment-to-moment advises writers to sual experience.” 35568-nys_69-2 Sheet No. 69 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 69 35568-nys_69-2 35568-nys_69-2 Sheet No. 69 Side B 10/28/2014 12:36:12 332 . For instance, Depending on Depending 327 , radio personality Garrison , radio personality (NPR radio broadcast Feb. 2, 2007), (NPR radio broadcast Oct. 16, 1999), But it could seem like baptismal could seem like But it Guy Noir 329 A Prairie Home Companion Most readers might expect the lake to be might expect Most readers 328 note 23, at 36. 331 sketches begins with, “It was one of those per- sketches begins supra , at 36–37 not simply describe a barn . . . . One de- (“One does . (describing the changes and emotional significance of a descrip- . (describing the changes and emotional Guy Noir http://prairiehome.publicradio.org/programs/19991016/guynoir at 203. ARDNER http://prairiehome.publicradio.org/programs/2007/02/03/scripts/ Gardner has a writing prompt that is a means of evoking is a means that prompt a writing has Gardner Id. See id. Cf. id Cf. id. A Prairie Home Companion: Guy Noir A Prairie Home Companion: Guy Noir G 326 330 Guy Noir’s description is over the top. His analogies are Guy Noir’s description is over the writer must channel To capture the objective correlative, In a similar vein, another starts with, “It was February in St. In a similar vein, another starts However, if the writer forces the objective correlative and en- writer forces the objective correlative However, if the 327. 328. 329. 330. 331. 332. 326. scribes a barn as seen by someone in a particular mood . . . .”). scribes a barn as seen by someone in a tion of a barn right after a murder). available at .html (last visited July 24, 2014). available at noir.shtml (last visited July 24, 2014). Keeler frequently spoofs artificial objective correlative in his Na- spoofs artificial objective correlative Keeler frequently show, tional Public Radio strange. The overall feeling is stretched, and his examples are is the goal, as it is for Keeler, forced, but also hysterical. If satire forced objective correlative then this description works. Otherwise, will miss the mark. moment-by-moment how all the viewpoint character and describe Paul, it was colder than a witch’s brass monkey—fortyPaul, it was colder than a witch’s below, every- thing frozen solid—polar south, and some bi-polar bears migrating could see people in vestibules bears. The wind was brutal. You dogs to go outdoors alone.” weeping. People trying to get their 486them.” NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:441 Robert Olen “from the head writing” of which gages in the bad of a campy spoof. the overall effect may be that Butler complains, known as In fact, in a sketch \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 46 28-OCT-14 9:35 water. objective correlative from the heart rather than the head. He in- head. than the rather heart from the correlative objective just com- man who had as seen by a young a lake structs, “Describe mention the murder.” murder. Do not mitted a murky and holding secrets. murky and one of his the murderer and how he or she felt about the murder, the lake the murder, he or she felt about and how the murderer very different. may look fect October days when the trees are red and gold and the air is when the trees are red and gold fect October days this is probably a and if you’re into the life cycle, rich with compost great time for you.” 35568-nys_69-2 Sheet No. 69 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 69 35568-nys_69-2 35568-nys_69-2 Sheet No. 70 Side A 10/28/2014 12:36:12 E- : J. , 24 : J. L RITING AND 65–66, 71 HETORIC RITING The Methodol- For exam- W W 23 (2010) (dis- 335 . & R RITING EGAL L EGAL W . B.J. , L OMM T V C EGAL , 13 Both in litigation and Both in litigation L , 36 DWARDS EGAL The Empathy Debate: The Role of 333 L H. E , 8 But one detail—the woman’s INDA 336 XPERIENTIAL L E A Theory of Preliminary Fact Investigation , However, by cultivating empathy for However, by cultivating empathy 334 Why Empathy Is a Core Lawyering Skill and Why Legal Why Empathy Is a Core Lawyering Skill and ONAHOE note 25 (advising lawyers to build empathy for their note 25 (advising lawyers to build empathy B. Process The Lawyer’s R. D 1. and Litigation In Discovery supra note 25, at 113. 931, 949 (1991) (“Consequently, a detail that seems irrele- 931, 949 (1991) (“Consequently, a detail , IANA . D EV 159 (2007) (discussing how empathy is necessary to understand . supra , Ian Gallacher, OBBINS NST L. R R I GAL AVIS See, e.g. Cf. 67–68 that writing is recursive and that the writer must (2011) (stating . D 109, 123–24 Cara Cunningham & Michael Streicher, (2011); RITING The concept of developing an objective correlative in a legal correlative in a an objective of developing The concept During trial preparation, empathy for the client and witnesses empathy for the client During trial preparation, AL 336. Eyster, 335. 334. Peter Tillers & David Schum, 333. W NALYSIS (2011) (explaining that the legal writing process involves creativity but that the (2011) (explaining that the legal writing ideas must still always be tied to the law); cussing how empathy helps clients to tell their stories). ALWD clients’ positions); vant at Time “x” may become highly relevant at Time “x + 1.”). vant at Time “x” may become highly relevant clients, witnesses, judges, and juries); Emily J. Gould, Empathy in Law, Mediation, and the New Professionalism Education Should Change to Reflect Its Importance understand the client’s facts and goals). narrative is similarly recursive and still involves diving into the involves diving and still is similarly recursive narrative empathize with must imagine the details and dream. The attorney the parties, and witnesses. the “characters,” ogy of Persuasion: A Process-Based Approach to Legal Writing ogy of Persuasion: A Process-Based Approach A U. C can guide the attorney to specifics that will flesh out the objective to specifics that will flesh can guide the attorney want to dismiss a detail that might correlative. Some attorneys may not initially appear relevant. 2013] point a given at that character feel to look and would details of the BUTLER’S CUPBOARD INSIDE THE LOOK A in time. 487 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 47 28-OCT-14 9:35 stolen bookbag—eventually to the forefront as they inter- jumped the client’s position, asking open-ended questions about the scene, the client’s position, asking open-ended the attorney may unearth an and following up to discover details, the legal issues. objective correlative that underscores ple, law professor Jason Eyster discusses how in the preparation ple, law professor Jason Eyster a group of clinic students initially stages for an immigration hearing asylum seeker whose experience had difficulty empathizing with an was so far removed from their own. in writing, this process involves empathizing with the clients and process involves empathizing with in writing, this smell of every- the look, feel, taste, and witnesses and examining clients and wit- walking in the shoes of the thing while imagining through the events of the past. nesses as they move 35568-nys_69-2 Sheet No. 70 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 70 35568-nys_69-2 35568-nys_69-2 Sheet No. 70 Side B 10/28/2014 12:36:12 337 He 343 339 Brown v. Bd. of illustrates the see also Initially, the follow- 340 However, the attorney 341 note 275; note 275. supra supra 344 2. In Writing Brown v. Board of Education Brown v. Board of Thus, the message to attorneys is to continue to dig is to continue message to attorneys Thus, the Transcript of Oliver Brown, Transcript of Oliver Brown, 338 In response to this questioning, Mr. Brown testified that In response to this questioning, Id. Id. Id. See See id. See id. See id. See 342 Thus, the attorney can start by assuming that the odds and Thus, the attorney can start by expect step-by-step instruc- Although novice legal writers often Trial testimony from Trial testimony from 337. 338. 339. 340. 342. 343. 344. 341. kinds of questions that an attorney might ask. kinds of questions Educ., 349 U.S. 294 (1954). ends mentioned by clients and witnesses have meaning. He or she ends mentioned by clients and witnesses continue to probe those odds can listen with understanding and form a coherent objective correl- and ends to discover whether they elicit at trial through open-ended ative that the attorney can then questions about the scene. involves circling, dovetailing, tions on writing a brief, the process 488her. with identify to the students helped and the client viewed NYU if be affected would lives their own how imagined students The ANNUAL SURVEY OF of the a centerpiece The bag became were stolen. their bookbags AMERICAN LAWnarrative. [Vol. 69:441 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 48 28-OCT-14 9:35 his daughter had to wait thirty minutes outside in the rain and snow his daughter had to wait thirty minutes was home in the evening. and that he never saw her until she and mine for details during preparation until either they are able to until either they preparation for details during and mine it becomes view or until client’s point of through the see the case different attorney. suited for a the client is more clear that followed up with questions about the time that the daughter had to questions about the time that the followed up with bus, how much what she did while waiting for the leave for school, the travel sched- and child had together given family time parent the girl had to of the area through which ule, and the conditions travel. further testified that his daughter had to hike to the bus through further testified that his daughter railroad switchbacks, all with- the “vast amount of traffic” and many out any provisions for her safety. ing statement might not seem significant: “My daughter goes to a not seem significant: “My daughter ing statement might Oliver Brown’s tes- than other children.” Similarly, different school from the Monroe daughter was twenty-one blocks timony that his have seemed relevant. school might not 35568-nys_69-2 Sheet No. 70 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 70 35568-nys_69-2 35568-nys_69-2 Sheet No. 71 Side A 10/28/2014 12:36:12 , E- 31 with EGAL Cun- M. P Compare DWARDS and E & L DVOCACY ARTHA A NDERSTANDING M RITING -U see also W ELF note 335, 223, 225 (2010), The writing and writing The S . PPELLATE see also EGAL 346 A supra NST note 25, at 66–67 (urging Beginning Legal Writing Stu- Beginning Legal Writing L I Although the process Although HROUGH supra 347 , T UIDE TO RITING UIDE TO 207, 213 (2009) (explaining that G AW . W That process can vary from can vary process That Gallacher, note 333, at 67 (stating that writing G EV L OBBINS 345 EGAL R with supra note 291, at 79 (explaining that process L. R , RACTICAL Using Feedback Theory to Help Novice Legal Writ- Using Feedback Theory to Help Novice Legal and : J. L EARNING RACTICAL note 291, at 79. ERCY A P supra : L , , note 333, at 68 (stating that the writer must un- note 333, at 68 (stating that the writer A P note 19, at 89 (advising viewing the protagonists’ . M DWARDS RITING supra , E YPES , ET note at 345, W IMON note 335, at 162. supra T EAZLEY supra , , B IMON U. D EGAL supra & S supra URIS L J ERNBACH ETH The writer will visit details in the record and envi- in the record will visit details The writer through the eyes of the protagonist, the client, in protagonist, the the eyes of the through , AMUK & S , 86 D B P DWARDS , 16 Miriam Felsenburg & Laura Graham, Miriam Felsenburg 348 349 E note 335 (stating that the process is creative); note 335 (stating that note 335, at 159, 164, 169 (discussing how drafting a brief is a note 335, at 159, 164, 169 (discussing ARY EUMANN ETERS OHN J N As the research bears fruit, the details can shape the bears fruit, the details can shape As the research M P with EUMANN supra supra These details may prompt the writer to research certain prompt the writer to research These details may TERS 351 See See Compare N Compare Cf. ON 168, 168, 205 (3d ed. 2007) (explaining that legal writing is recursive 168, 168, 205 (3d ed. 2007) (explaining 350 note 333, at 67–68 process is recursive and involves (stating that the writing 346. 348. 351. 349. then the attorney may have If the attorney on appeal was trial counsel, 350. 345. 347. & D ETHOD supra facts). understands both the law and the circling until the writer (2006) (noting that facts at hand can help a writer to generate search words to use (2006) (noting that facts at hand can help a writer to generate search words to in research). Gallacher, while students may view legal writing as linear it is recursive); Cunningham & while students may view legal writing Streicher, how the facts are written in tandem with cyclical and recursive process as well as the argument). the writer to “get inside the heads” of the witnesses to determine whether the story makes sense). varies from writer to writer); even conducted an actual field trip to the scene and envisioned the events during even conducted an actual field trip to the would likely not be billable. Moreover, that process. On appeal, such a field trip are likely outweighed by the time lost in the benefits of visualizing the actual site rare instances in which an attorney might taking the trip, though there could be find such a trip beneficial. processes are as personal as signatures and fingerprints); processes are as personal as signatures landscape), derstand the client’s goals and facts), rather than linear); Sheila Rodriguez, ers Develop Expertise Felsenburg & Graham, M dents in Their Own Words: Why the First Weeks of Legal Writing Are So Tough and What Why the First Weeks of Legal Writing dents in Their Own Words: We Can Do About It discussion on how different Myers-Briggs (2007) (devoting the entire book to a and essay writing styles). personality types have different legal learning 2013] imagination. and thinking, critical BUTLER’S CUPBOARD INSIDE THE LOOK A 489 scene sion the \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 49 28-OCT-14 9:35 legal theories, the case law included, the detail included from case case law included, the detail included legal theories, the avenues. person to person and even from case to case. from case even and to person person protagonist’s land- Pamuk discusses viewing the the same way that scape. ningham & Streicher, researching can alternate between intuitive subconscious choices subconscious between intuitive can alternate researching examination. editing and and deliberate other types with does share commonalities and alternate, it can vary of storytelling. 35568-nys_69-2 Sheet No. 71 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 71 35568-nys_69-2 35568-nys_69-2 Sheet No. 71 Side B 10/28/2014 12:36:12 EU- 357 N note Others note 333, supra M.H. Sam , 359 supra At the same , see also Some instruc- 353 ONAHOE 356 D , 25 Seattle U. L. Rev. ONAHOE see A tactile-kinesthetic D 358 note 346. supra , The writer cross-references these cross-references writer The 352 ETERS note 291, at 80–84; 355 & P supra note 358 (stating that tactile learners benefit from , note 25, at 28 (explaining that rigorous accuracy en- note 25, at 28 (explaining that rigorous note 351, at 28–31 writers to start by creating (advising As new details appear, the writer may revise details appear, As new ETERS note 333, at 67–68 that writing is recursive and (stating P IMON supra 354 supra supra , note 291, at 83 (describing tactile-kinesthetic learners’ need , supra & S , supra at 31–40how the legal and factual issues dovetail one (showing (detailing the cross-referencing process that takes place between (detailing the cross-referencing process OBBINS , EAZLEY R B Jacobson, EUMANN DWARDS A Primer on Learning Styles: Reaching Every Student A Primer on Learning Styles: Reaching Every MANN Cf. See Cf. id. N E See id. Cf. id. See IMON Where the fiction writer begins with fragments from a dream, writer begins with fragments from Where the fiction Either way, scenery and other description that may fit into an Either way, scenery and other description & S 355. 359. 356. 357. 358. 352. 353. 354. 333, at 65–67 to creating one’s own writing process); (referring Jacobson, type and learning styles can affect 139, 155 (2001) (discussing how personality learning in law school); at 65–66, that the law is the starting point and that the writing must 71 (explaining as well). be accurate but that creativity is important touching materials and kinesthetic learners benefit from moving around); hances the credibility of both the lawyer and the client); hances the credibility of both the lawyer facts and goals). that the writer must understand the client’s an abstract of the record). to interact). another during research and how analogies can evolve during the research phase). another during research and how analogies phase). facts and authority during the research the appellate brief writer begins with the record. the appellate brief once first to get a reading through the record Others may advise However, writers case and then taking notes. sense for the whole and learning styles. differ in their processes 490 made. analogies and the law, NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:441 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 50 28-OCT-14 9:35 things with one another the whole way through and must also envi- must also and through whole way the another with one things resonates. whether it picture to determine sion the both the theory of the case and the overall picture. Despite the fact picture. Despite and the overall theory of the case both the may circle around are listed in an order, the writer that these steps the process until in varying orders throughout each of these steps whole. there is a coherent tors may advise that a writer start with notes on the record. that a writer start with notes tors may advise time, the writer must continually verify the accuracy of the picture accuracy of the verify the writer must continually time, the legal theo- ensure that the and must in the imagination that forms supported. ries are before they can take notes. may need quiet processing time in the record, and witnesses objective correlative will often appear learner might find it easier to read the record while taking notes; it easier to read the record while learner might find interact with the record. such learners sometimes have to 35568-nys_69-2 Sheet No. 71 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 71 35568-nys_69-2 35568-nys_69-2 Sheet No. 72 Side A 10/28/2014 12:36:12 E- 364 360 D ESIGN D Berger, , cf. . See, e.g. RCHITECTURE AND A note 250 (including testimony CHOOL OF S In the beginning, the writer In the beginning, supra EW 362 N 44–45. , http://hmcarchitects.com/ideas/evidence_ All while looking around the scene, 365 note 15 (explaining that objective correlative is note 15 (explaining that objective correlative ESIGN note 25, at note 351, at 37–38 (explaining that the theme may be supra note 23, at 203. urging the writer to show rather than to tell) HMC D supra supra , , supra , 241 ( , Brief for the United States, at The writer might ask, “If I did not mention the ulti- ask, “If I did not mention the The writer might OBBINS EAZLEY 361 R B , http://www.designandhealth.com/People/Eve-Edelstein.aspx (last , http://www.designandhealth.com/People/Eve-Edelstein.aspx Wynne-Jones, 363 ARDNER SIGN AND Cf. G Cf. See id. See, e.g. See EALTH On that first reading, the record still will be like the fiction be like the record still will first reading, the On that note 23 (explaining that narratives help people to understand and make note 23 (explaining that narratives help 363. 364. 362. 365. 360. 361. , http://www.newschoolarch.edu/about/neuroscience.html (last visited July , http://www.newschoolarch.edu/about/neuroscience.html H based_design (last visited July 25, 2014); based_design (last visited July 25, 2014); tentative in the beginning). visited July 25, 2014); 25, 2014). Later, the writer may fill in the ultimate issue or the mental state at Later, the writer may fill in the ultimate the writer is looking around the certain spots. But prior to that, smell of the place, the color of room and thinking about how the of people on the street, the the paint on the house, the throng of a cat’s eye might all form a moisture in the air, and the blink the state of mind of the characters. coherent picture that illustrates the witnesses, and even invisible These characters are the parties, entities like the state itself. correlative analyzed earlier in this of Detective Belland that created the objective Article). 2013] it. realizing without correlative an objective in even testify may BUTLER’S CUPBOARD INSIDE THE LOOK A think people it is how because story works in correlative Objective and emote. 491 must and the writer in some respects, amorphous dream writer’s of the through the eyes and the case law to examine it continue coherence. to develop “characters” actually experience the world); not just a device but is the way people supra seem to be recognizing the impact of the sense of life events). Other disciplines and architects are now collab- external world on the psyche as well. Neuroscientists of design on the brain. orating on design and studying the effects \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 51 28-OCT-14 9:35 mate issue or the mental state, how would the facts on the record mental state, how would the facts mate issue or the prove true?” my client’s theory and assertions appear should has glimpsed a few details that may become a part of the overall few details that may become a has glimpsed a between ap- At this stage, the only difference objective correlative. correlative and ap- that includes an objective pellate brief writing the writing which that does not is that in pellate brief writing to step into the correlative the writer is trying includes an objective they interacted and other witnesses to see how shoes of the client the writer may re- In fact, throughout the process, with the setting. lake as seen by a exercise regarding describing the call the Gardner murderer. 35568-nys_69-2 Sheet No. 72 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 72 35568-nys_69-2 35568-nys_69-2 Sheet No. 72 Side B 10/28/2014 12:36:12 E- cf. L 369 , the , 14 Bush v. Edison . After listing “barriers” (explaining how the writer’s 366 373 note 291, at 129–31(labeling a section 28–31, 39–40 27–31, 39–40 supra 127, 152 (2008) (discussing how storytelling , . NST The Plot Thickens: The Appellate Brief as Story IMON I Such a small detail can provide a seed for Such a small detail can provide note 351, at 31 (noting that facts at hand can help a note 351, at 372 & S note 351, at . RITING Once the case law is found, then the authority Once the case law supra supra supra W (explaining that accuracy is part of the credibility of both (explaining that accuracy is part of the , , , 368 EUMANN Some detail that the writer notices while writing the notices while that the writer Some detail 28 39–40 N EGAL , at at 367 EAZLEY EAZLEY EAZLEY note 25, at 205 (describing explanation as including examples from note 25, at 205 (describing explanation B B B : J. L GAL See Cf. id. Cf. Cf. id. See, e.g. Cf. Cf. id. 371 supra Then finally, the details from each case can appear side by details from each case can appear Then finally, the , RITING 370 For instance, in the attractive nuisance case, For instance, in the attractive nuisance While the writer starts with the record, the objective correlative the record, the writer starts with While the 372. Brief of Appellees at 2, Bush v. Edison, No. 23077, 2006 WL 2485013 373. 368. 371. 369. 370. 367. 366. W OBBINS (Ohio Ct. App. Aug. 30, 2006), 2006 WL 5098180, at *2. facts serve as a touchstone for determining relevant authority facts). facts serve as a touchstone for determining elements can play a role in the entire brief). of a brief that includes mini-narratives full of authority facts as “explanation”); of a brief that includes mini-narratives lawyer and client). writer to generate search words to use in research). case law); Kenneth D. Chestek, R Those details are a part of the objective correlative for the authority a part of the objective correlative Those details are story of the au- writer explains the rule, telling the case. When the explanation of the details can be included in the thority case, the rule. 492 of the details in the to fill the record double-checking is the writer NYU accu- is an mind the writer’s room in that the to verify and picture ANNUAL SURVEY OF on the record. of the room rate depiction AMERICAN LAW [Vol. 69:441 the argu- the research and facts can inform statement of used in the well. ment as \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 52 28-OCT-14 9:35 defense attorney may have noticed barbed wire on the record and defense attorney may have noticed of facts, which may have subse- mentioned it in the statement list “barriers” as a search term. quently prompted the writer to substation where young Mat- Barbed wire enclosed the electrical thew Bush was injured. research that leads the writer to case law. research that leads the writer to facts may prompt a question that leads the writer to search for sup- writer to search that leads the prompt a question facts may porting case law. sometimes open Thus, objective correlative can side in the analysis. details in expla- serve as a guide for including avenues for research, to make in and lay the foundation for arguments nation of the rule, analysis. case may have some details similar to the details on the record. details similar to the details case may have some as a potential factor in an attractive nuisance case, the writer can as a potential factor in an attractive whether that general rule is borne search the case law to determine out by case law. 35568-nys_69-2 Sheet No. 72 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 72 35568-nys_69-2 35568-nys_69-2 Sheet No. 73 Side A 10/28/2014 12:36:12 L- A 381 For , 20 375 If theories 379 378 For example, the is still relevant to Some avenues will avenues Some 380 374 Pimentel v. Jacobsen Fish- Bush See Anders v. California, 386 U.S. (explaining how the theme may cf. 37–38 Federal Appellate Mediation Programs note 372, at 8. 1 (2002) (discussing various appellate mediation 1 (2002) (discussing various appellate . Must Every Appeal Run the Gamut?—The Civil Appeals Where the client’s facts and the case law the client’s facts Where supra 755 (1986) (discussing the viability of dispute resolu- 755 (1986) (discussing the viability of dispute note 351 (discussing how writers may begin with a note 25, at 63–64 how the research and (discussing ITIG note 351, at note 25, at 74 (comparing the initial stages of research note 25, at 74 (comparing the initial stages 376 L L.J. supra supra supra OST supra ALE , , , , Y C , Texas Utils. Elec. Co. v. Timmons, 947 S.W.2d 191 (Tex. 1997). , Texas Utils. Elec. Co. v. Timmons, 947 IGH , 95 EAZLEY EAZLEY OBBINS OBBINS H The writer must examine the record and the objective the record and must examine The writer B B R R at 75, 81, 85 (stating that some issues can be dismissed quickly and at 75, 81, 85 (stating that some issues at 16. . Irving R. Kaufman, 377 TERNATIVES TO See Cf Id. See, e.g. Cf. Id. See This detail from the case law could have then led the writer This detail from the case law could If, on the other hand, the writer can refine the theory of the hand, the writer can refine the If, on the other However, the initial stages of research can also be like the frag- be like can also research stages of initial the However, 382 378. 380. 375. 379. support sanctions, if the result is An appeal is frivolous, as required to 376. 377. 382. 381. Brief of Appellees, 374. develop or change as the writer researches and writes). develop or change as the writer researches programs). tion on appeal); Kathleen M. Scanlon, the facts may dovetail one another as the lawyer refines the approach). the facts may dovetail one another as the merit. obvious or the arguments are wholly without 1996); ing Co., Inc., 102 F.3d 638, 640 (1st Cir. to looking outside an airplane window to determine where one is). to looking outside an airplane window that only some issues will be viable after research). that only some issues will be viable after the analysis of the elements of attractive (considering a barricade as a factor in nuisance). 738, 741 (1967) (explaining that appointed counsel in a criminal case who deter- 738, 741 (1967) (explaining that appointed ask to withdraw only after filing a brief mines that an appeal is frivolous should that “might arguably support the appeal”). that includes anything from the record See generally Management Plan tentative theme and refine it throughout the research and writing process). case and the objective correlative, the writer will find new avenues correlative, the writer will case and the objective the record and the case law. to explore in both the condition was admits that he knew that Further, if the child the dan- child had the capacity to comprehend dangerous, the ger. 2013]BUTLER’S CUPBOARD INSIDE THE LOOK A made coherent. must be that dream mented 493 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 53 28-OCT-14 9:35 back to the record, to the warning signs posted outside the station, back to the record, to the warning are inconsistent, then the writer may have to re-think the theory of to re-think the writer may have then the are inconsistent, the case. anew. and examine the legal theories correlative anew are not supported by the record or the law, the writer must be will- by the record or the law, the are not supported case. settlement or risk dismissal of the ing to consider not be fruitful, and the writer will have to abandon those. writer will have and the not be fruitful, elements of other unnamed subcategory “barriers” are an instance, nuisance. of attractive barbed wire around the electrical station in barbed wire around the rule that there is no cause of action for attractive nuisance in is no cause of action for attractive the rule that there the danger. has the capacity to comprehend Ohio if the child 35568-nys_69-2 Sheet No. 73 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 73 35568-nys_69-2 35568-nys_69-2 Sheet No. 73 Side B 10/28/2014 12:36:12 390 note While supra 386 Thus, an ap- Berger, 388 That means the cf. 391 (explaining how the writer’s 1 (2010). note 25, at 28, 41–44 (explain- supra , IRECTORS D 28–31, 39–40 That means that the story must be That means that OBBINS Coherent and eloquent narrative is Coherent and eloquent R 385 384 Judging By the Numbers: An Empirical Study of the Judging By the Numbers: An Empirical Study note 23 (explaining that metaphor is the foun- 387 RITING note 23, at 955–56 (explaining that people often The whole way through, the writer will way through, The whole note 25, at 41–43 how people are bio- (explaining W supra 383 note 180 (explaining that world-building details con- note 180 (explaining that world-building note 25, at 34–36 that persuasion is pref- (explaining note 351, at supra supra EGAL , note 25, at 28, 41–44 (explaining that accuracy estab- L supra supra N supra ’ , , SS supra OBBINS , R J. A at 66–67 and law students to determine whether (urging lawyers at 34–36 that persuasion is preferable to coercion). (explaining at 22. ; OBBINS EAZLEY R B , 7 Roessner, Kenneth D. Chestek, OBBINS See id. Cf. id. See Cf. Cf. id. Cf. R See id. Cf. The judge should not feel manipulated by the brief. not feel manipulated by the The judge should 389 At some point during this process, the writer has an idea of the has an idea process, the writer point during this At some 388. 385. 386. 387. 389. 390. 391. 383. 384. facts serve as a touchstone for determining relevant authority facts). facts serve as a touchstone for determining ing that accuracy establishes both the lawyer’s credibility and the client’s and explain that humans are biologically wired to respond to “deep-frame” stories). logically wired to understand the world through narrative); logically wired to understand the world lishes both the lawyer’s credibility and the client’s, and explaining that humans are lishes both the lawyer’s credibility and the stories). biologically wired to respond to “deep-frame” of the witnesses). the facts make sense from inside the heads 23, at 277–80 how metaphor and narrative are how people understand (discussing the world). dation of much human reasoning); erable to coercion). think in metaphor); Winter, Power of Story vey verisimilitude); Berger, Rather, those details should be used to tell a story that is more Rather, those details should be fleshed and credible because it “true,” one that feels more fully experience. more accurately represents human 494 prohibited, he was meant these things that admission child’s to the NYU com- actually the child that that show details the other to all of and ANNUAL SURVEY OF the danger. prehended AMERICAN LAW [Vol. 69:441 so doing, of facts. In draft the statement the case and can theory of the client the eyes of the record through needs to picture the writer appellate brief Like the fiction writer, the and other witnesses. “true” story. writer must tell a \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 54 28-OCT-14 9:35 supported by the evidence, but also that it must feel true. evidence, but also that it must supported by the also be chasing those details. also be chasing part of how the human animal thinks and decides. part of how the writer must picture the story and all of the details through the cli- writer must picture the story and appellate judges may sometimes say that feelings play no role in may sometimes say that feelings appellate judges Chestek, judges a study by law professor Kenneth their decision, in as opposed to briefs that he sent to them preferred the storytelling briefs. the non-story telling than a fiction be any more heavy-handed pellate brief cannot story. 35568-nys_69-2 Sheet No. 73 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 73 35568-nys_69-2 35568-nys_69-2 Sheet No. 74 Side A 10/28/2014 12:36:12 cf. (explaining how the writer’s But a collection of seem- 400 note 335, at 112, 138, 151 (explaining 28–31, 39–40 note 372. supra supra note 333, at 65 (stating that the legal reader does Stuffing a narrative with too many details and too note 25, at 46, 65–66 (encouraging lawyers to view the “ note 25, at 28 (advising lawyers to build empathy for note 25, at 28 (advising lawyers to build note 351, at 395 note 335, at 123–24(explaining that a lawyer must em- note 25, at 94, 100, 105 (2008) (encouraging attorneys note 25, at 94, 100, 105 (2008) (encouraging 398 supra , supra supra supra , , supra supra note 180 ( In fact, I first became intrigued by the use of objective In fact, I first became intrigued The appellate attorney must cultivate empathy to see empathy cultivate must attorney appellate The ONAHOE OBBINS EAZLEY D R B Robbins, Eyster, Brief of Appellees, 399 392 The attorney must explore the story with all the the story must explore The attorney The writer might ask, “Does it matter that the electrical ask, “Does it matter that the The writer might The attorney is imagining how everything would smell how everything is imagining The attorney supra That in turn prompted his parents to warn him about the his parents to warn him That in turn prompted See See See id. Cf. Cf. Cf. See id. Cf. 393 396 394 397 By including those details in the statement of facts narrative, details in the statement of facts By including those In so doing, the writer will have new questions and will need to and will need have new questions the writer will In so doing, 400. 397. 398. 399. 392. Gallacher, 393. 394. 395. 396. facts serve as a touchstone for determining relevant authority facts). not want to be bothered with “too much detail or tangential information”); not want to be bothered with “too much detail or tangential information”); Roessner, insides of the characters’ head to determine whether the facts make sense and insides of the characters’ head to determine discussing organization). pathize with witnesses and clients to properly represent them). pathize with witnesses and clients to properly that a metaphor falls short if a lawyer fails to use empathy and chooses logical that a metaphor falls short if a lawyer empathy to understand witnesses and overlap alone, and that a lawyer requires clients). their clients’ positions); Gallacher, the writer now also has a guide for exploring those details in case has a guide for exploring those the writer now also in the explanation section of the law to determine what to include argument. 2013] eyes. ent’s BUTLER’S CUPBOARD INSIDE THE LOOK A 495 reorder the state- again and notice new details or review the record unfolding of that seems to be a more logical ment in a manner events. to seek out physical details). \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 55 28-OCT-14 9:35 station in Matthew Bush’s case was humming?” The humming of Bush’s case was humming?” station in Matthew to ask about the prompted Matthew Bush the electrical station noise. the scene as though he or she was experiencing it for himself or for himself it experiencing she was he or though scene as the herself. senses. capacity to un- further evidence of Bush’s station, which provided derstand the danger. I realized how it could aid students correlative in legal writing when details that they sometimes in fleshing out potentially dispositive explanation of the rule, a omit. For instance, once, when discussing always been taught not to put a student said to me, “I have just This student is correct that ex- bunch of extra stuff in my writing.” brief. traneous fluff has no place in a and feel if the client’s story was “true” and then searching the re- then searching was “true” and if the client’s story and feel those details. cord for 35568-nys_69-2 Sheet No. 74 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 74 35568-nys_69-2 35568-nys_69-2 Sheet No. 74 Side B 10/28/2014 12:36:12 401 That Then 403 note 333, 406 supra note 333, at 69. , supra , ONAHOE D DWARDS E note 335; The writer will continually visit supra 408 402 note 370 (discussing how storytelling ele- note 370 (discussing how storytelling 409 supra note 333, at 69 (explaining that some writers need note 333, at 69 (explaining that some writers note 347, at 275–77 (stating that emotionally signifi- note 333, at 66–67; note 25, at 59–72 investigating the facts (discussing note 25, at 59–60, 130–32 (explaining how details that supra note 25, at 94, 100, 105 (encouraging attorneys to seek note 25, at 94, 100, 105 (encouraging They move the blocks around, cut and paste, They move the note 333, at 69. , supra note 347, at 207, 213 (explaining that while students may supra , supra , supra 405 , Chestek, , supra supra supra , DWARDS They have to write it all down and then review for it all down and then review They have to write E at 168, 205 (explaining that legal writing is recursive rather than ONAHOE OBBINS ERNBACH OBBINS R D D R 404 Eyster, Cunningham & Streicher, DWARDS Cf. See generally Cf. See Cf. Cf. Cf. id. E See Once that portion of the statement of facts is revised, the Once that portion of the statement 407 Once the writer finds ample case law with overlapping details, case law with writer finds ample Once the Either way, the writer may find some new nugget from case law may find some new nugget Either way, the writer 405. 407. 402. 403. 404. 406. 408. 409. 401. at 66–67 that outlining may be part of the process for some writers and (explaining not for others); and fine-tuning the legal theories as new information develops). and fine-tuning the legal theories as new may not initially seem relevant to the client can alter the entire presentation of the may not initially seem relevant to the client case). out physical details). ments can play a role in the entire brief). to outline in advance while others do so after writing). to outline in advance while others do so cant facts bearing no relevance to the legal issues should be excluded). linear); Rodriguez, much Setting-background can drive . . . overwhelmed reader[s] right out of a tale much Setting-background can drive . . . or suffocate them.”). 496can matter. details relevant potentially yet miniscule ingly NYU conceptualize writers some to help is likely correlative Objective ANNUAL SURVEY OF for similar can also search The writer those details. and incorporate AMERICAN LAW a picture cobble together of case law to details in the facts specific [Vol. 69:441 of the circumstances. of totality parallels and include the the argument may outline some writers outline. and the statement of facts in that between case law \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 56 28-OCT-14 9:35 the record, the case law, the brief, and the dream and ask, “Did it the record, the case law, the brief, writer circles until there is a pol- really happen this way?” Thus the ished and coherent whole. organization later. and topic and weave in new transitions eliminate repetition, and pasting. sentences after cutting again. to review the trial court’s record that leads the writer writer may then need to change a portion of the rule, the explana- writer may then need to change tion, or analysis for consistency. is fine if that is part of their process. Other writers may find that part of their process. Other writers is fine if that is of flow when provide them with the needed sense outlines do not they write. the dream in the some new fact and revisit the writer may notice must picture the writer does. Then the writer same way the fiction they form a coherent pic- details on the record to see whether ture. 35568-nys_69-2 Sheet No. 74 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 74 35568-nys_69-2 35568-nys_69-2 Sheet No. 75 Side A 10/28/2014 12:36:12 . RIZ Pre- A note , 38 Steven J. supra ONDUCT C L ’ see also ROF P ULES R even if the attorney him- even if Regardless, the important Regardless, ODEL 1.1 (instructing that lawyers pro- 410 . , r M 411 cf. V. note 372. ONDUCT C note 372. L That objective correlative then laid the That objective correlative ’ supra A lawyer cannot make “a false statement 412 ROF 415 supra Bush v. Edison Bush v. The details in the objective correlative were The details in the P 413 ULES R note 409. ODEL M Brief of Appellees, 414 This Is Not the Whole Truth: The Ethics of Telling Stories to Clients ETHICAL CONCERNS REGARDING ACCURACY ETHICAL CONCERNS See supra See See id. See id. See What matters is that the final product includes an objective an includes product the final is that matters What Objective correlative is actually a more truthful means of con- Objective correlative is actually a a person’s state of mind is The most accurate way to present 411. 412. 410. Brief of Appellees, 413. 414. 415. amble and Scope (advocating zealous advocacy of clients); Johansen, vide competent representation to clients); view legal writing as linear it is recursive); Cunningham & Streicher, view legal writing as linear it is recursive); a brief is a recursive process and how the 335, at 164, 169 (discussing how drafting facts are written in tandem with the argument). 2013]BUTLER’S CUPBOARD INSIDE THE LOOK A the argument. shapes and of mind state reveals that correlative the instance of Thus, in 497 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 57 28-OCT-14 9:35 veying state of mind. Thus, although words like “storytelling” and veying state of mind. Thus, although initially with some readers as “fiction techniques” may register are actually the means that lit- “making stuff up,” these techniques more honest and coherent story. erary fiction writers use to tell a the techniques are a way of getting Used in law or even non-fiction, and are also a better method of closer to what actually happened for readers. reproducing what actually happened experienced events, which is through the actual way that the person Therefore, studying objective often through objective correlative. lawyer’s duty to provide competent correlative can become part of a a part of the lawyer’s duties representation and can even become with respect to accuracy. foundation for one of the legal issues presented in the argument: of the legal issues presented foundation for one The child’s capacity. the writer the case law and the analogies also reflected in included. thing is that these details were fleshed out in the attorney’s state- details were fleshed out in the thing is that these for the child’s created an objective correlative ment of facts and capacity to comprehend. self were queried, it is possible that he might not remember the might not remember that he queried, it is possible self were an objec- that he used might not be aware this process. He order of be- some dove-tailing well have been There may tive correlative. research. record and the tween the 35568-nys_69-2 Sheet No. 75 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 75 35568-nys_69-2 35568-nys_69-2 Sheet No. 75 Side B 10/28/2014 12:36:12 . See EV 421 425 417 AST supra supra , F , L. R 119, 140 The law- OBBINS HINKING 423 OFSTRA R L.J. T H , ILL G C , 20 M For example, the For example, AHNEMAN 419 and a more accurate a more and Moreover, it does not Moreover, , 42 K note 23, at 277 (noting the 416 420 note 15 (explaining that objec- ANIEL supra D supra r. 4.1(a). note 23, at 954 (explaining how concepts Legal Bilingualism supra ee generally ONDUCT S note 419, at 140 (explaining how all language is note 419, at 140 (explaining how all C L ’ Berger, note 23, at 277–80 (explaining that literal truths are note 23 (taking issue with Thomas Grey’s contention note 23 (taking issue with Thomas Grey’s all language is symbol. all language The Troubles with Law and Economics note 23, at 277 (noting the argument that “literal” truth note 23, at 277 (noting the argument that note 23, at 748 (discussing metaphor, language, and note 23, at 748 (discussing metaphor, supra ROF P 418 note 419, at 932 (explaining how all language is symbolic). note 419, at 932 (explaining how all language supra supra supra supra note 51, at 663. see also ULES note 420. note 423. supra R supra 422 Berger, Macdonald, Berger, Winter, Rather, it is through symbols like words and physical evi- symbols like words and physical Rather, it is through ODEL Winter, AND 56–57 that people think in symbols); Winter, (2011) (explaining See Cf. M Cf. See supra See id. Cf. See supra See id. 424 961 (2006) (explaining that the truth is the client’s individual truth within 961 (2006) (explaining that the truth is LOW Similarly, any report of the past is symbolic, so even a brief that of the past is symbolic, so even Similarly, any report 418. 419. Roderick A. Macdonald, 417. 420. 421. 422. 423. 416. 424. 425. S . L.J. T note 25, at 37–44 how people think in narrative). (discussing (1997); Leonard R. Jaffee, argument that “literal” truth might be non-existent in law). argument that “literal” truth might be that metaphor creates a new reality); Berger, that metaphor creates a new reality); Berger, might be non-existent in law); Wynne-Jones, might be non-existent in law); Wynne-Jones, tive correlative is often the way that people experience the world); tive correlative is often the way that people note 23, at 748 (discussing metaphor, language, and notions of objective reality). note 23, at 748 (discussing metaphor, language, See generally symbolic); Jaffee, notions of objective reality). The author has previously used a similar example. notions of objective reality). The author Koehlert-Page, 777, 932 n.6 (1992); Rather “chair” is a shorthand or symbol of the actual thing in the a shorthand or symbol of the Rather “chair” is feels about her is shorthand for how Michele same way that “love” cat, Leona. will be only an approximation. uses objective correlative out dramas in will resemble the shadows acting Therefore, any trial S 498third person,” to a or law fact of material NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:441 and correlative is symbolic that objective some may argue Although reality, thus evades are often rooted in metaphors). \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 58 28-OCT-14 9:35 limits). hard to come by and providing examples of how metaphor infuses our everyday language). dence that the lawyer constructs a representation of the past. lawyer constructs a representation dence that the necessarily capture all the properties and principles of a given all the properties and principles necessarily capture of its meaning. may differ in their perceptions chair, and people for his or up the past for a judge to experience yer cannot conjure herself. word “chair” is not a chair in and of itself. is not a chair word “chair” and fully fleshed representation of the client’s experience is actu- is experience the client’s of representation fully fleshed and cor- truth. Thus, objective the client’s of approaching ally a means of facts. a mere list the truth than may better represent relative 35568-nys_69-2 Sheet No. 75 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 75 35568-nys_69-2 35568-nys_69-2 Sheet No. 76 Side A 10/28/2014 12:36:12 , , 32 428 But see UMKC L. 575, 747–51 1 (2005) (ar- , 80 426 LATO . L.J. The majority of P note 23, at 277 (dis- Fiction 101: A Primer for 432 supra Chabris and Simons NTERDISC . I 431 AL IALOGUES OF with Instinct and the Unconscious D S. C note 23 (explaining that our mind is , 15 note 15, supra OLLECTED Come a Little Closer So I Can See You My Pretty: C HE supra note 15 (explaining that objective correlative is note 15 (explaining that objective correlative , http://www.theinvisiblegorilla.com/videos.html note 415 (explaining that the truth is the client’s note 415 (explaining that the truth is the note 430. T note 419, at 23, 34–35 (describing an experiment Winter, in , supra supra supra and ORILLA supra (discussing how certain archetypal images speak to the (discussing how certain archetypal images , G Law Is Law and Art Is Art and Shall the Two Ever Meet? Law and Law Is Law and Art Is Art and Shall the Two Brian J. Foley & Ruth Anne Robbins, cf. note 431. Wynne-Jones, 55–58 The Republic NVISIBLE The gorilla is not relevant to viewers’ task and, thus, is The gorilla is not relevant to viewers’ AHNEMAN I K 459, 472 (2001) (discussing two parties’ competing truths). 459, 472 (2001) (discussing two parties’ Wynne-Jones, Cathren Koehlert-Page, 433 Because people think in terms of a coherent whole, think in terms of a coherent Because people So if a case involves state of mind, objective correlative is of mind, objective involves state So if a case HE Compare See See supra See id. Cf. T See 429 427 L.J. For instance, Christopher Chabris and Daniel Simons pro- Chabris and Daniel For instance, Christopher A fully-fleshed cave shadow, one that contains a detailed objec- a detailed one that contains cave shadow, A fully-fleshed client’s ac- an attorney’s job is to present the That being said, note 23, at 430 427. 430. 432. 433. 431. 428. 429. 426. Plato, 399 (2011); Johansen, . UTGERS EV (Edith Hamilton & Huntington Cairns, eds., Paul Shorey trans., Princeton Univ. (Edith Hamilton & Huntington Cairns, Press 1961) (1938). guing that to see multiplicity and relativity to truths is to rethink jurisprudence). guing that to see multiplicity and relativity supra R (last visited July 25, 2014); cussing how story and metaphor have played a role in thinking, persuasion, and cussing how story and metaphor have reasoning since Aristotle), unconscious mind and are somewhat universal), Berger, unconscious mind and are somewhat universal), regarding this phenomenon). Wendy Nicole Duong, Literature: The Comparative Creative Processes metaphoric with respect to legal endeavors as it is with everything). metaphoric with respect to legal endeavors not just a device but is how people actually experience the world). not just a device but is how people actually Techniques in Appellate Briefs The Use and Limits of Fiction Point of View R truth within limits); 2013]the re- with work writer must brief appellate and the cave, Plato’s BUTLER’S CUPBOARD INSIDE THE LOOK A possible. approximation truest the to construct cord less. Ob- rather than be more accurate will actually tive correlative, 499 human part of the to be a natural appears jective correlative psyche. of reality differ world where individual perceptions curate truth in a that the client’s time, the attorney is ensuring while, at the same typically involves with the evidence. Litigation perception comports eye of the be- and “reality” is often in the competing truths, holder. \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 59 28-OCT-14 9:35 sometimes they miss details that do not seem relevant to their fo- miss details that do not seem relevant sometimes they cus. of the invisible gorilla. vide the example often the most accurate portrayal of a witness’s state of mind. state of portrayal of a witness’s most accurate often the Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections Lawyers on How to Use Fiction Writing Techniques viewers missed the gorilla-suited person who walks through during viewers missed the gorilla-suited the game. filmed a basketball game and asked viewers to count how many game and asked viewers to filmed a basketball passed the ball. times players wearing white shirts 35568-nys_69-2 Sheet No. 76 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 76 35568-nys_69-2 35568-nys_69-2 Sheet No. 76 Side B 10/28/2014 12:36:12 The argument 435 24–25 (2006) (explaining RITER W IKE A L note 379 (discussing the viability of dispute note 379 (discussing various appellate medi- EADING supra supra In a car accident case, the accident may the accident case, car accident In a R , note 415 (urging the telling of accurate yet individ- note 415 (urging the telling of accurate 434 ROSE supra P Kaufman, RANCINE 436 F Johansen, It is actually the opposite of a well-crafted objective correl- It is actually the opposite of a well-crafted See id. Cf. See generally Cf. 437 Where emotional material is involved, objective correlative is Where emotional material is involved, Where the objective correlative is consistent with the evidence Where the objective correlative is 434. 435. 436. 437. that some “telling” is recommended in fiction as long as specific important story points are shown). ual truths). resolution on appeal); Scanlon, ation programs). even more necessary to preserve accuracy. So for instance, the even more necessary to preserve and pandering if the writer writer might be accused of inaccuracy Cindy-Sue was so terribly sad after wrote something like, “Tiny, little her by the vicious telephone com- the horrible injustice exacted on heart, and she cried and cried for pany. It just broke her sweet, little emotion-signifying words; it days and days.” Such a passage contains the facts. It tells rather than is problematic because it characterizes shows. 500 the focus. a part of not NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:441 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 60 28-OCT-14 9:35 ative and is unlikely to evoke the emotions that it describes. ative and is unlikely to evoke the the other examples above, a lawyer and the theory of the case as in of accuracy by using it. meets the highest ethical standards have happened in the first place because the driver missed some- missed driver the place because first in the happened have the client- at hand. So if to the task did not seem relevant thing that client’s ob- wipers, the the windshield focused on adjusting driver is jumped the gorilla that might exclude testimony jective correlative break sud- other driver to and forced the of the other car in front truths of competing nowhere. The battle the middle of denly in the road or not? If there a gorilla in the middle of then ensues. Was leaping from testimony involves a random gorilla the other driver’s testimony may into suburbia, then that driver’s out of nowhere The appellate correlative of a madman. seem like the objective of the details that the gorilla along with all brief writer can mention reach their appear out of place and let readers make the gorilla turns out that traf- based on context. However, if it own conclusions time to revisit the the gorilla on film, then it is fic cameras caught in light of all of the evidence. theory of the case may change or the attorney may offer to attend mediation and set- attorney may offer to attend may change or the tle the case. 35568-nys_69-2 Sheet No. 76 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 76 35568-nys_69-2 35568-nys_69-2 Sheet No. 77 Side A 10/28/2014 12:36:12 CONCLUSION If an attorney visualizes the external world involved in a case, involved in a the external world visualizes If an attorney 2013]BUTLER’S CUPBOARD INSIDE THE LOOK A 501 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 61 28-OCT-14 9:35 he or she can both discover relevant details in the record and case in the record relevant details can both discover he or she that am- backdrop and psychological create an emotional law and portrays frequently objective correlative This plifies persuasion. emotion- than mere and forcefully mind more accurately state of correlative can. Objective or “malice” words like “anger” signifying symbols. It is an a single symbol or even a set of is more than just of events and the and it is a part of the unfolding entire backdrop, create this we think and emote. To successfully manner in which of the elements of must gracefully weave all backdrop, the writer of events in a moment-by-moment unfolding the scene together In crafting told from the character’s perspective. that is seen and recursive process, the writer engages in a this objective correlative, law continually the record and the case revisiting and visualizing coherence in is fully-fleshed. If an attorney seeks until the picture correlative will ac- searches the record, objective the narrative and than any dry list of events can. tually meet higher ethical standards the butler’s, pantry is to look in- Thus, to look inside Mr. Steven’s, manner. side Stevens himself in the best 35568-nys_69-2 Sheet No. 77 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 77 35568-nys_69-2 35568-nys_69-2 Sheet No. 77 Side B 10/28/2014 12:36:12 502 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:441 \\jciprod01\productn\N\NYS\69-2\NYS203.txt unknown Seq: 62 28-OCT-14 9:35 35568-nys_69-2 Sheet No. 77 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 77 35568-nys_69-2 35568-nys_69-2 Sheet No. 78 Side A 10/28/2014 12:36:12 R R R R R R R R R R R R R R R R R R R R R ...... 535 ...... 519 ...... 539 ...... 554 ...... 552 APPLY TO BIA APPLY ...... 559 ...... 541 ...... 531 ...... 547 ...... 532 503 ...... 562 ...... 525 ...... 516 ...... 561 ...... 564 PAUL CHAFFIN* CHEVRON ...... 525 ...... 509 ...... 527 EXPERTISE AND EXPERTISE ...... 510 Applies Doctrine as a Source of Inconsistency Doctrine as a Source . . . 512 Mead ...... 504 Chevron After the Immigration Context Context Chevron Provisions, and “Domestic Provisions, Procedural Policy” Provisions Procedural Requirements for Deference 4. Conclusions 1. Technical Expertise 2. Statute Specialization: Expertise in the 3. Expertise in Statutory Interpretation 4. Political Accountability 1. Foreign Policy Implications 2. Immigration Penalties Are Severe 3. Political Process Theory INTERPRETATIONS OF THE INA? OF THE INTERPRETATIONS of Courts and the BIA Administration A. Stating a Clear Test to Determine Whether A. The Relevance of Expertise to Judicial Deference B. Defining Agency Expertise C. and the Unique Nature of Variety in Deference A. of Uniformity in the Immigration The Virtues B. C. Criminal and the “Specific Issue”: Delegation D. The Step Zero “Force of Law” Requirement: E. Conclusions IMMIGRATION ADMINISTRATION: IMMIGRATION WHEN DOES WHEN I. in Modern Immigration Inconsistency * J.D. 2013, N.Y.U. School of Law. I would like to thank the Hon. Robert II. Immigration Expertise III.Based on the Relative Expertise Granting Deference Katzmann for his thoughts and guidance. Additionally, I would like to thank Hal Katzmann for his thoughts and guidance. Additionally, I would like to thank Laidlaw for his valuable comments and criticism. \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 1 28-OCT-14 9:36 Introduction 35568-nys_69-2 Sheet No. 78 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 78 35568-nys_69-2 35568-nys_69-2 Sheet No. 78 Side B 10/28/2014 12:36:12 R R R R R R R R . & EGIS a cate- 2 .... 567 .Y.U. J. L ...... 569 governs which 1 ...... 579 , 15 N Chevron ...... 565 ...... 575 Judge Robert A. Katzmann, See ...... 570 Courts frequently determine 4 ...... 569 . (2012) INTRODUCTION et. seq. Step Zero Provides the Best Solution Provides the Step Zero When language is vague, unclear, or ambiguous, When language is vague, unclear, 3 ...... 584 Chevron than the BIA to Interpret Greater Competence of Justice,” Courts “Relating to Obstruction that Phrase De Novo Should Interpret Deference to Agencies’ Expert Policymaking, Not Policymaking, Expert Agencies’ to Deference Textual Interpretation Agencies’ 1. Foreign Policy Implicating Provisions 2. Procedural Provisions 3. Gap-Filling Domestic Policy: 585, 588 (2012) (“Since 2006, the Second Circuit has adjudicated more Y ’ B. Requires Precedent Court Supreme C. D. at Stake INA Provisions E. the Test: Because Courts Possess Applying OL The Immigration and Nationality Act (INA) The Immigration 2. 8 U.S.C. § 1101(a)(43)(S) (2012). 3. 8 U.S.C. § cancel removal in 1229b(a) (2012) (“The Attorney General may 4. Additionally, the mechanism by which definitional meaning is given to the 1. 8 U.S.C. § 1101 . P UB P Bench, Bar and Immigrant Representation: Meeting an Urgent Need than 16,000 immigration cases.”). the case of an alien who is inadmissible or deportable from the United States if the the case of an alien who is inadmissible for permanent residence for not less alien . . . has been an alien lawfully admitted States continuously for 7 years after than 5 years, . . . has resided in the United . . . has not been convicted of any aggra- having been admitted in any status, and vated felony.”). code has significant consequences for federal courts of appeals, as immigration cases make up a significant part of their docket. Conclusion 504 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 2 28-OCT-14 9:36 the mechanism by which that language is given meaning has signifi- the mechanism by which that language cant consequences for noncitizens. gory that provides little guidance on its own, he or she loses eligibil- gory that provides little guidance and a waiver of grounds of ity for both cancellation of removal inadmissibility. the INA by deferring to the opin- the meaning of unclear phrases in noncitizens may enter the United States and remain in the United noncitizens may enter the United of individuals may remain States, determining whether millions in another country. An near loved ones or free from persecution often hinges on the meaning of a individual’s immigration status For example, if a non-citizen single word or phrase in the statute. the obstruction of justice,” commits an “offense relating to 35568-nys_69-2 Sheet No. 78 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 78 35568-nys_69-2 35568-nys_69-2 Sheet No. 79 Side A 10/28/2014 12:36:12 . , EO In G 6 , 58 , Zuni Pub. Sch. deference frame- See, e.g. Chevron regime as a valuable regime as as “simply a sound recogni- as “simply a sound has developed into a near has developed into Chevron Chevron , 467 U.S. at 866 (deferring to EPA it has become clear that these it has become clear 9 and for establishing consistency and for establishing 7 Chevron Chevron Chevron—The Intersection of Law & Policy Judicial Deference to Administrative Interpretations of Law Judicial Deference to Administrative Interpretations 5 However, as . 8 , the Court has made clear that the , 517 (1989) (“[T]he sheer volume of modern dockets made it , 517 (1989) (“[T]he sheer volume of modern , the Supreme Court established the rule that courts the rule Court established , the Supreme note 8. , 467 U.S. at 842–43. Chevron Chevron . 821, 822 (1990) (characterizing . 821, 822 (1990) (characterizing Antonin Scalia, EV L.J. 511 Chevron see infra Chevron See UKE . L. R In 9. Since 8. 5. Inc., 467 U.S. 837 v. Natural Res. Def. Council, Chevron U.S.A., Inc. 6. 7. Laurence H. Silberman, ASH W less and less possible for the Supreme Court to police diverse application of an less and less possible for the Supreme ineffable rule.”). tion that a political branch, the executive, has a greater claim to make policy branch, the executive, has a greater tion that a political choices than the judiciary”). work applies in a broad range of administrative contexts. work applies in a broad range of administrative Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81 (2007) (deferring to Department of Dist. No. 89 v. Dep’t of Educ., 550 U.S. Aid Program); Household Credit Education interpretation of Federal Impact (deferring to Federal Reserve Board Servs., Inc. v. Pfennig, 541 U.S. 232 (2004) AT&T Corp. v. Iowa Utilities Bd., 525 U.S. interpretation of Truth in Lending Act); of Communications Act); INS v. 366 (1999) (deferring to FCC interpretation (deferring to BIA interpretation of INA); Aguirre-Aguirre, 526 U.S. 415 (1999) U.S. 380 (1999) (deferring to Treasury United States v. Haggar Apparel Co., 526 Revenue Code); Holly Farms Corp. v. Department interpretation of Internal to NLRB interpretation of NLRA); Babbitt NLRB, 517 U.S. 392 (1996) (deferring Oregon, 515 U.S. 687 (1995) (defer- v. Sweet Home Chapter of Ctys. for a Great of Endangered Species Act); Na- ring to Department of the Interior interpretation Annuity Life Ins. Co., 513 U.S. 251 (1995) tionsBank of North Carolina v. Variable of the Currency interpretation of National (deferring to Office of -the Comptroller (1995) (deference to Bureau of Prisons Bank Act); Reno v. Koray, 515 U.S. 50 R.R. Passenger Corp. v. Boston & Maine interpretation of Bail Reform Act); Nat’l Interstate Commerce Commission inter- Corp., 503 U.S. 407 (1992) (deferring to Good Samaritan Hosp. v. Shalala, 508 pretation of Rail Service Passenger Act); of Health and Human Services interpre- U.S. 402 (1993) (deferring to Department v. BethEnergy Mines, Inc., 501 U.S. 680 tation of Social Security Act); Pauley interpretations of Black Lung Benefits (1991) (deferring to Department of Labor Act); Rust v. Sullivan, 500 U.S. 173 (1991) (deferring to the Department of Health K and Human Services interpretation of Title X of Public Health Service Act); in- Mart Corp. v. Cartier, 486 U.S. 281 (1988) (deferring to Treasury Department terpretation of Tariff Act of 1930); interpretation of Clean Air Act). (1984); 1989 D 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE the doctrine under (BIA) Appeals Immigration of of the Board ions out in laid 505 of interpretation agency’s reasonable to an executive should defer to administer. a statute it is charged provisions in ambiguous \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 3 28-OCT-14 9:36 universal framework for deference, universal framework across the circuits. the 1990s, commentators hailed the commentators the 1990s, tool for ensuring an appropriate division of power between the ju- of power between division ensuring an appropriate tool for branches, diciary and the political 35568-nys_69-2 Sheet No. 79 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 79 35568-nys_69-2 35568-nys_69-2 Sheet No. 79 Side B 10/28/2014 12:36:12 Nat’l frame- INS v. Car- principles as Chevron INS v. Cardoza- that “[a]n addi- Chevron see also See Agency Deference & See Agency Deference Cardoza-Fonseca , 545 U.S. 967, 981 (2005) (hold- (outlining framework, particularly after undoubtedly applies to the undoubtedly applies But in practice courts have ap- But in practice EVIEW , Hamama v. INS, 78 F.3d 233, 239 (6th 14 R Despite Justice Scalia’s contention Despite ’s “domain” in several cases, most in several cases, ’s “domain” the BIA received substantial deference for Chevron 10 applies to BIA interpretations in . framework to defer to a BIA interpretation); Chevron See, e.g. , INS v. Jong Ha Wang, 450 U.S. 139, 144 (1981) Chevron the Court has in practice acted to “tailor has in practice the Court Chevron Chevron MMIGRATION 11 See, e.g. I Chevron 12 note 8, at 512 (noting the “seemingly categorical nature of note 8, at 512 (noting FFICE OF deference are applicable to [the INA].”); deference are applicable to [the INA].”); inconsistently to reach varying results in the immigra- inconsistently to supra ought to provide a bright-line rule for reviewing all rule for provide a bright-line ought to . O , 533 U.S. at 236. United States v. Mead United States INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (“It is clear that prin- INS v. Aguirre-Aguirre, 526 U.S. 415, 424 , all of the federal courts of appeals have adopted the , all of the federal courts of appeals have XEC deference). E doctrine]”). Chevron See Mead interpretation of the INA. interpretation of , Chevron 13 Chevron As a general matter, As a general matter, 14. In a move inconsonant with the 10. a prerequisite (establishing procedural formality as 533 U.S. 218 (2001) 11. Scalia, 12. 13. but has dele- is entrusted to administer the INA, The Attorney General Chevron Chevron relevant to immigration context). ciples of Franklin v. INS, 72 F.3d 571, 572 (8th Cir. 1995) (same); Ahmetovic v. INS, 62 F.3d Franklin v. INS, 72 F.3d 571, 572 (8th Cir. v. INS, 23 F.3d 1557, 1560 (9th Cir. 48, 51 (2d Cir. 1995) (same); Hernandez-Vivas F.3d 1034, 1036 (4th Cir. 1993) (same); 1994) (same); De Osorio v. INS, 10 Cir. 1993) (same); Mosquera-Perez v. Jaramillo v. INS, 1 F.3d 1149, 1152 (11th Katsis v. INS, 997 F.2d 1067, 1069 (3d INS, 3 F.3d 553, 558 (1st Cir. 1993) (same); F.2d 621, 623 (10th Cir. 1993) (same); Cir. 1993) (same); Nguyen v. INS, 991 1993); Leybourne v. BIA, 871 F.2d 1149, Iredia v. INS, 981 F.2d 847, 849 (5th Cir. v. INS, 831 F.2d 1362, 1366 (7th 1149 (D.C. Cir. 1989) (same); Variamparambil Cir. 1987) (same). ing that agencies receive deference for inconsistent interpretations of ambiguous ing that agencies receive deference for in statutory provisions), the Court also asserted Cir. 1996) (applying the Servs. Cable & Telecomms. Ass’n v. Brand X Internet for heightened deference to its posi- tional reason for rejecting the INS’s request the BIA has taken through the years.” 480 tion is the inconsistency of the positions U.S. at 446 n.30. Even prior to Fonseca, 480 U.S. 421, 448–49 (1987) (declining to grant deference to the BIA, the responsibility for administering but explaining that “Congress had delegated gave ambiguous provisions “concrete the statutory program” to the BIA, which adjudication”). Following the Supreme meaning through a process of case-by-case Court’s announcement that doza-Fonseca work in the immigration context. some of its interpretations. (deferring to an ambiguous provision in the INA because “the [INA] commits [the provision’s] definition in the first instance to the Attorney General and his dele- gates, and their construction and application of this standard should not be over- for 506bright- that a Recognizing some cases. in only realized are benefits NYU the Supreme scenario, every in not desirable rule is deference line ANNUAL SURVEY OF cut back on Court has AMERICAN LAW [Vol. 69:503 BIA’s \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 4 notably in 28-OCT-14 9:36 deference to variety.” deference that agency interpretations, plied [ Brand X gated the authority to administer the statute to the BIA. gated the authority 35568-nys_69-2 Sheet No. 79 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 79 35568-nys_69-2 35568-nys_69-2 Sheet No. 80 Side A 10/28/2014 12:36:12 19 17 ’s goal. The However, if However, 18 Chevron deference as it gives the term An increase in immigration increase An 15 in the immigration context is in the immigration Chevron Id. to require lockstep deference to lockstep deference to require . Whether courts defer to BIA inter- . Whether courts Chevron Mead Chevron to adopt ambiguity as the sole touchstone of to adopt ambiguity note 4. Part I. , Butros v. INS, 990 F.2d 1142, 1149 (9th Cir. 1993) (Trott, J., dis- , Butros v. INS, 990 F.2d 1142, 1149 (9th , Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1166–67, Trung Thanh Hoang v. Holder, 641 F.3d (9th Cir. Chevron Negusie v. Holder, 555 U.S. 511, 530 (2009) (Stevens, J., concurring) ] accounts for the different institutional competencies of agencies and and disparate outcomes for similarly situated noncitizens for similarly situated outcomes and disparate framework should allocate interpretive questions between allocate interpretive questions framework should See infra See supra See, e.g. See See, e.g. 16 Some courts read Some courts 15. 16. 18. 19. 17. Chevron This Note argues that the best solution to the concerns raised by that the best solution to the This Note argues of inconsistent application it may prefer another interpretation of turned by a reviewing court simply because the statute”). 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE raises that uniformity lack of in a resulted This has context. tion justice concerns. and efficiency both 507 application of deference rule, but instead a careful not a bright-line the principles underlying a specific inter- INA should depend on whether pretations of the of Congress’s delegation. Courts pretation falls within the scope Congress’s delegation by applying should determine the scope of \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 5 28-OCT-14 9:36 residing in different circuits lead to an inequitably applied law. inequitably applied lead to an in different circuits residing agency interpretations of ambiguous INA provisions. ambiguous INA of agency interpretations litigation over the past decade has clogged the dockets of federal the dockets has clogged over the past decade litigation courts, courts read of am- defer to all BIA interpretations deference and systematically they will fail to realize biguous INA provisions, Chevron competence. BIA based on relative institutional courts and the 2011) (Bybee, J., dissenting) (arguing that the court should defer to a BIA inter- 2011) (Bybee, J., dissenting) (arguing that even when that interpretation does not pretation of an ambiguous INA provision but merely asserts a conclusion, unless that expressly define the ambiguous phrase v. Ashcroft, 388 F.3d 507, 510 (5th Cir. interpretation is unreasonable); Alwan of the term ‘aggravated felony’ has 2004) (holding that because “interpretation matter to be ultimately resolved by the not been designated by Congress as a BIA courts,” “we are obliged to accord the concrete meaning through a process of case-by-case adjudication”) (internal cita- concrete meaning through a process of tion omitted). senting) (contending that deference promotes “uniformity which is essential in senting) (contending that deference promotes the same, regardless of the federal circuit promoting the goal of treating all people to explain that by rejecting a bright-line in which they live”). Judge Trott went on judicial judgment for that of the agency” deference rule, courts “substitute[ed] in which the INS . . . operates, disorder and “contribute[d] to the utter disorder which can only be called ‘all over the generated by dissonant circuit court opinions lot,’ both in reasoning as well as result.” (“[ at courts: Courts are expert at statutory construction, while agencies are expert statutory implementation.”). 35568-nys_69-2 Sheet No. 80 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 80 35568-nys_69-2 35568-nys_69-2 Sheet No. 80 Side B 10/28/2014 12:36:12 Chevron and they 24 deference.”). instructs that INS v. Aguirre- , Tran v. Gonza- See id. See to discern con- discern to Chevron Chevron 20 See, e.g. Absent these factors, Absent expertise in the INA expertise 23 22 Shi Liang Lin v. DOJ, 494 F.3d 296, 316 see also , the Court considered, among other factors, “the , the Court considered, among other diplomatic expertise, diplomatic 21 or that give meaning to procedural provisions in to procedural provisions or that give meaning INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987) (employing INS v. Cardoza-Fonseca, 25 deference). , Sandoval v. Reno, 166 F.3d 225, 239 (3d Cir. 1999) (“An issue , Francis v. Reno, 269 F.3d 162, 168 (3d Cir. 2001) (denying defer- , Francis v. Reno, 269 F.3d 162, 168 (3d , the BIA interpreted a federal criminal statute. , the BIA interpreted a federal criminal Thus, as Justice Stevens argues, the judicial deference Thus, as Justice see also Barnhart v. Walton Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the Marbury v. Madison, 5 U.S. 137, 177 26 Tran Chevron See See, e.g. See, e.g. 23. In 22.agency, the BIA is far more compe- As a politically accountable executive 24. 20. U.S. 837, 844 v. Natural Res. Def. Council, Inc., 467 Chevron U.S.A., Inc. 25. 21. the BIA has a “special competence” As a specialized administrative body, 26. complexity of that administration [of the statute]” in determining whether complexity of that administration [of the applies. 535 U.S. 212, 222 (2002); Aguirre, 526 U.S. 415, 425 (1999) (recognizing that “judicial deference to the Ex- Aguirre, 526 U.S. 415, 425 (1999) (recognizing in the immigration context where officials ecutive Branch is especially appropriate that implicate questions of foreign ‘exercise especially sensitive political functions relations’”) (quoting INS v. Abudu, 485 U.S. 94, 110 (1988)). tent to make decisions implicating foreign policy than courts. tent to make decisions implicating foreign (“When a governmental body with sub- (2d Cir. 2007) (Katzmann, J., concurring) statutory scheme concludes that a stantial experience in interpreting a complex should give us pause.”); Bamidele v. INS, statute is ambiguous, that determination cases which “concerned matters laby- 99 F.3d 557, 562 (3d Cir. 1996) (discussing analysis would be bolstered by our reli- rinthine in their complexity in which our ance on the expertise of the INS”). les, 414 F.3d 464, 467 (3d Cir. 2005) (refusing to defer to a BIA interpretation of les, 414 F.3d 464, 467 (3d Cir. 2005) (refusing competence and congressional delega- subject matter “outside the BIA’s special tion”). In n.9 (1984); intent and statutory construction” to determine congressional “traditional tools of denying province and duty of the judicial department to say what the law is.”). province and duty of the judicial department criminal statute because “the BIA did not ence to BIA interpretation of a federal and because “ rely upon any expertise” in its interpretation 508 construction” of statutory tools “traditional the NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 6 28-OCT-14 9:36 regime should “account[ institutional competen- ] for the different statutory construc- and courts: Courts are expert at cies of agencies the INA. in matters uniquely particular to the immigration context. in matters uniquely particular to the immigration gressional intent regarding delegation. They should defer to BIA defer should They delegation. regarding intent gressional of the BIA’s immigration- the application that manifest opinions expertise, specific courts possess superior expertise in interpreting statutes in interpreting superior expertise courts possess and administration of the immigration laws. of the and administration should not defer to BIA interpretations that do not implicate any that do not implicate interpretations defer to BIA should not provisions of the terminology, that rely on immigration-specific criminal code, we accord deference only to the BIA’s ‘construction of the statute which it ad- we accord deference only to the BIA’s ‘construction of the statute which it ministers’”) (citation omitted). concerning a statute’s effective date is not one that implicates agency expertise in a concerning a statute’s effective date is not one that implicates agency expertise in meaningful way, and does not, therefore, appear to require 35568-nys_69-2 Sheet No. 80 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 80 35568-nys_69-2 35568-nys_69-2 Sheet No. 81 Side A 10/28/2014 12:36:12 27 Judicial at which at 28 and analyzes the 363, 398 (1986). Thus, . step zero). deference to the BIA. See id. EV “step zero,” “step Chevron 29 framework applies at all, applies at framework Chevron . L. R Chevron DMIN Chevron A I. Chevron , 38 in immigration cases. Since the Supreme in immigration , inconsistency in judicial review of BIA inter- , inconsistency in INCONSISTENCY IN MODERN Chevron IMMIGRATION ADMINISTRATION Chevron note 9 (listing agencies to which the Supreme Court has found note 9 (listing agencies to which the Supreme Part I.B (discussing analysis at Second, it is unclear what procedural formalities the what procedural formalities Second, it is unclear 30 INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987) (reviewing de novo Negusie v. Holder, 555 U.S. 511, 530 (2009) (Stevens, J., concurring). Negusie v. Holder, 555 U.S. 511, 530 (2009) . First, it is unclear whether the BIA should receive judicial whether the BIA should receive . First, it is unclear See infra See supra See See applicable). Part I of this Note provides a descriptive account of the wide- account of the a descriptive this Note provides Part I of The principle that courts ought to defer to agency interpreta- The principle that courts ought 28. 29. 30. 27. courts should make judgments about questions of law, in which they have a com- courts should make judgments about questions should make judgments about mat- parative advantage in expertise, and agencies expertise. ters of policy, where they have comparative Chevron the the question of whether the INA’s well-founded fear standard was identical to two “clear probability of persecution” standard de novo because the identity of the standards was a “pure question of statutory interpretation”). implications of agency expertise for implications of agency expertise 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE implementation.” statutory at are expert agencies while tion, at expertise agency Considering 509 about the re- that has resulted from confusion spread inconsistency quirements of Court decided left open by INA has stemmed from two questions pretations of the Chevron of statutory con- of “pure question[s] deference for interpretations struction.” \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 7 28-OCT-14 9:36 Part III examines different types of INA provisions that the BIA has Part III examines different types to these interpretations, and interpreted and the judicial response outlined in this Note resolve in- then explains how the principles consistent judicial approaches. BIA must observe in order to receive judicial deference. Over the in order to receive judicial deference. BIA must observe reached con- the courts of appeals have largely past three decades, split over the for- question, but remain deeply sensus on the latter vitality of agency II explores the continuing mer question. Part after expertise as a rationale for deference Elsewhere Justice Breyer has suggested that courts ought to accord deference Elsewhere Justice Breyer has suggested and strengths.” Stephen Breyer, based on relative “institutional capacities Review of Questions of Law and Policy tions is nearly as old as the American legal system, and has nearly tions is nearly as old as the American courts determine whether the whether courts determine would bring clarity in the immigration context without disrupting context without immigration clarity in the would bring the ap- missions entail federal agencies’ as many the law elsewhere, a particular field. of expertise in plication 35568-nys_69-2 Sheet No. 81 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 81 35568-nys_69-2 35568-nys_69-2 Sheet No. 81 Side B 10/28/2014 12:36:12 , 32 31 Mead 8 C.F.R. Butros v. applies or See also see also Chevron 605, 622 (2004) (“When . L.J. This Part explores the This Part principles to particular has Muddled Judicial Review of deference to reject an agency 33 deference have produced so much MMIGR Mead . I Chevron Chevron EO G How Chevron Judicial Deference to Agency Decisions in Removal has often been unclear and caused been unclear has often framework has led to inconsistency in has led to inconsistency framework 1443, 1464 (2005)); Wolpaw v. C.I.R., 47 F.3d 787, 1443, 1464 (2005)); Wolpaw v. C.I.R., . EV Chevron Chevron A uniform immigration law ensures that nonci- A uniform immigration law ensures . L. R INS v. Ventura, 18 34 AN V , Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. , Coeur Alaska, Inc. v. Se. Alaska Conservation , United States v. Vowell, 9 U.S. 368, 372 (1810) (“If the question , United States v. Vowell, 9 U.S. 368, 372 , 58 John W. Guendelsberger, doctrine. Part I.C surveys the circuit splits that have arisen surveys the circuit splits that doctrine. Part I.C See See, e.g. See, e.g. A.Uniformity in the Immigration Context The Virtues of avoidance—the of declining to opine whether practice Uniformity serves goals of efficiency and equitable application goals of efficiency and equitable Uniformity serves 34. Jian Hui Shao v. BIA, 465 F.3d 497, 502 (2d Cir. 2006). 33. 31. 32. a circuit court relies on an exception to a circuit court relies on an exception interpretation, the practical effect is to create a patchwork immigration law with interpretation, the practical effect is to circuit authority.”); different results depending upon controlling INS, 990 F.2d 1142, 1153 (9th Cir. 1993) (Trott, J., dissenting) (“The INS contin- INS, 990 F.2d 1142, 1153 (9th Cir. 1993) by fractious circuits. Maybe the Supreme ues to be pulled in all directions at once this Court will iron out all of these impossible wrinkles, or maybe the INS will take to Congress for repair.”). Nearly two decades later, the circumstances that incited Judge Trott’s concern persist. § (“[T]he Board, through precedent decisions, shall provide 1003.1(d)(1) (2009) 790 (6th Cir. 1995) (“[T]he degree to which courts are bound by agency interpre- 790 (6th Cir. 1995) (“[T]he degree to which standard seems to have been constantly tations of law has been like quicksand. The perspective of the intermediate appellate shifting, steadily sinking, and, from the Univ. v. Secretary, 996 F.2d 122, 123 n.1 courts, frustrating.”) (quoting Ohio State (6th Cir.1993)). Proceedings in Light of [of statutory interpretation] had been doubtful, the court would have respected [of statutory interpretation] had been has been given by the treasury the uniform construction which it is understood similar questions.”). department of the United States upon (“[O]ur misguided opinion in 261, 296 (2009) (Scalia, J., concurring) whose incomprehensible criteria for 510 law. in the uniformity of achieving the goal tied to been always NYU deference the Court’s matter, general as a objective, this Despite ANNUAL SURVEY OF under jurisprudence AMERICAN LAW courts, federal circuit application for difficulty in considerable [Vol. 69:503 context. in the immigration particularly \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 8 28-OCT-14 9:36 confusion in the lower courts that there has now appeared the phenomenon of confusion in the lower courts that there Chevron ways in which the ways in INA provisions. Part I.D describes the ways in which the courts of Part I.D describes the ways in which INA provisions. require- toward consensus on the procedural appeals have migrated satisfy to receive judicial deference. ments the BIA must of the law—goals desirable” in the immi- that would be “especially gration context. immigration administration. Part I.A argues that uniformity is par- that uniformity Part I.A argues administration. immigration for both efficiency in the immigration context ticularly important of the relevant Part I.B provides an overview and equity reasons. Chevron application of due to inconsistent not.”) (citing Lisa Schultz Bressman, Agency Action 35568-nys_69-2 Sheet No. 81 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 81 35568-nys_69-2 35568-nys_69-2 Sheet No. 82 Side A 10/28/2014 12:36:12 OARD OF , B , 20 I. & N. Dec. USTICE However, this http://www.justice J 38 throughout the United TOF ’ EP available at uniformly , U.S. D see also Matter of Cerna 413, 473 (2007) (“The moral impera- . EVIEW EV 1 (2004), Learning to Live with Unequal Justice: Asylum R . L. R ANUAL TAN M S MMIGRATION , 60 I A uniform immigration law also produces effi- law also produces immigration A uniform RACTICE One argument in favor of categorical deference One argument 35 P 37 , 990 F.2d at 1149 (Trott, J., dissenting) (“Judicial adherence to , 990 F.2d at 1149 (Trott, J., dissenting) FFICE FOR , Stephen H. Legomsky, PPEALS . O A the BIA is uniquely positioned to establish uniform rules positioned to establish uniform the BIA is uniquely XEC See Butros See, e.g. E 36 Because the BIA makes rules binding for all immigration makes rules binding for all Because the BIA 36. 8 C.F.R. § and decisions of 1003.1(g) (2009) (“[D]ecisions of the Board, 37. or Congress has the power to In addition to the BIA, the Supreme Court 38. 35. MMIGRATION .gov/eoir/vll/qapracmanual/pracmanual/chap1.pdf (“The Board is responsible .gov/eoir/vll/qapracmanual/pracmanual/chap1.pdf laws for applying the immigration and nationality tive of equal justice, the needs for certainty and predictability, the benefits of effi- tive of equal justice, the needs for certainty acceptability all demand attention to ciency, and the objective of public consistency in any adjudicative framework.”); at 408 (expressing concern over “a patchwork application of the law—withat 408 (expressing concern over “a patchwork the . . . tied to the mere happenstance of most profound decisions affecting aliens where their cases arise geographically”). all officers and employees of the Depart- the Attorney General, shall be binding on judges in the administration of the ment of Homeland Security or immigration immigration laws of the United States.”). the Supreme Court has a small docket establish nationally binding rules. However, Congress has not passed comprehensive and rarely hears immigration cases, and immigration legislation since 1996 amendments. this sensible and long-standing principle of review promotes national uniformity in this sensible and long-standing principle uniformity which is essential in promoting an agency’s application of federal law, the goal of treating all people the same, regardless of the federal circuit in which they live. Failure or refusal to adhere to this rule in the form of substituting judi- the cial judgment for that of the agency contributes to the utter disorder in which INS now operates, disorder generated by dissonant circuit court opinions which can only be called all over the lot, both in reasoning as well as result.”) (internal States.”) (emphasis added). and the Limits to Consistency clear and uniform guidance to . . . the immigration judges, and the general public to . . . the immigration judges, clear and uniform guidance and its implementing and administration of the Act on the proper interpretation (BIA 1991) (“We note of Cerna, 20 I. & N. Dec. 399, 405 regulations.”); Matter Immigration Appeals is to ensure as uni- that a principal mission of the Board of of this country’s immigration laws as is pos- form an interpretation and application sible.”); I 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE their actions, of consequences legal of the notice have some tizens that and outcomes, have predictable hearings immigration that 511 the same are subject to the United States in all parts of noncitizens laws. immigration \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 9 28-OCT-14 9:36 to the BIA is that lockstep deference enables the BIA to produce a lockstep deference enables the to the BIA is that to a fragmented immigration law, as opposed fully uniform national that varies from circuit to circuit. immigration law for immigration. ciencies, both in terms of the federal government’s ability to en- ability of the federal government’s both in terms ciencies, in terms of minimizing efficient costs and laws at force immigration immigration adjudication on parties, the costs imposed litigation federal courts. system, and the courts, 35568-nys_69-2 Sheet No. 82 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 82 35568-nys_69-2 35568-nys_69-2 Sheet No. 82 Side B 10/28/2014 12:36:12 ’s 39 41 articu- Chevron in the immigration context “step zero,” at which courts 665, 669 (2008) (“The pressure put on the 665, 669 (2008) (“The pressure put on framework should apply at all, con- Chevron Chevron 40 . L.J. Chevron Criminal Deportation, Post-Conviction Relief and the Lost Criminal Deportation, Post-Conviction Relief Thomas W. Merrill & Kristen E. Hickman, Chevron Thomas W. Merrill & Kristen E. Hickman, framework by the federal courts of appeals, framework by the MMIGR Doctrine as a Source of Inconsistency Doctrine as a Source framework in cases reviewing BIA decisions framework in cases . I decision, the Supreme Court added the addi- decision, the Supreme Court added EO G see also 833, 861 (2001) (“A . . . reason for preferring agency interpre- 833, 861 (2001) (“A . . . reason for preferring Chevron Chevron , 22 Chevron Mead , Edwards’ Lessee v. Darby, 25 U.S. 206, 210 (1827) (“In the con- . L.J. EO B. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, Chevron U.S.A., Inc. v. Natural Res. Def. Andrew Moore, G See See, e.g. See , 89 Inconsistent application of 40. 41. 39. state and federal post-conviction relief system results in nonuniformity in the treat- state and federal post-conviction relief system the limited effectiveness of post-conviction ment of criminal convictions even with relief.”). 842–43. . the court determines Congress has not directly addressed (1984) (“If . does not simply impose its own construc- the precise question at issue, the court in the absence of an administrative inter- tion on the statute, as would be necessary pretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a per- missible construction of the statute.”). tation . . . is that this may be the only practical way today to achieve uniformity in tation . . . is that this may be the only practical federal law.”). struction of a doubtful and ambiguous law, the contemporaneous construction of struction of a doubtful and ambiguous law, the contemporaneous construction Cause of Uniformity Domain will generate greater uniformity in immigration law while nonethe- uniformity in immigration will generate greater judicial review of BIA decisionmaking. less ensuring adequate In the 2001 quotations omitted); which has resulted in inconsistent law. Consequently, a uniform ap- in inconsistent law. Consequently, which has resulted proach to the 512 by decisions of BIA review First, unavailing. ultimately is argument NYUagainst to noncitizens protections crucial provides courts federal ANNUAL SURVEY OF to the valuable as a means is only overreach. Uniformity executive AMERICAN LAW on the INA’s reliance of the law. Second, administration end of fair [Vol. 69:503 offenses the predicate law to establish federal criminal state and introduces unresolvable penalties already immigration that trigger administration. into immigration inconsistencies state-by-state federal law, al- judiciary also produces uniform Third, the federal In light of can undermine this uniformity. though circuit splits in the ap- this Note focuses on inconsistency these considerations, plication of the \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 10 28-OCT-14 9:36 determine whether the to administer the statute. siders whether the agency is entrusted lated the now well established two-step rule that if, at step one, the lated the now well established two-step with respect to the specific issue,” statute is “silent or ambiguous interpretation if, at step two, that courts should defer to an agency interpretation is reasonable. stems in part from the fact that the factors relevant to granting def- stems in part from the fact that the three decades. erence have changed over the past 35568-nys_69-2 Sheet No. 82 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 82 35568-nys_69-2 35568-nys_69-2 Sheet No. 83 Side A 10/28/2014 12:36:12 187, . see also EV inquiry. and the Second, the framework 42 . L.J. 605, 620 . L. R Id. A Chevron V MMIGR . I , 92 Chevron EO deference may be shown “by deference may be shown 18 G Judicial Deference to Agency Deci- it is unclear under which it is unclear Step Zero 43 deference when “Congress could 45 as a two-step pre- Chevron framework as consisting of three dis- F.D.A. v. Brown & Williamson Tobacco Chevron Mead note 38, at 834–35. at step one, the Thus, at 843 (“[I]f the statute is silent or ambig- Id. INS v. Ventura, Chevron supra See also , 467 U.S. at 843 n.9. If the provision is ambigu- , 467 U.S. at 843 n.9. If the provision is only applies if “[t]he agency interpretation claim- only applies if “[t]he At step zero, At step 44 Chevron Chevron John W. Guendelsberger, at 620–21. See Id. , Cass R. Sunstein, Chevron analysis. See, e.g. (noting that Id. Chevron analysis with the avoidance of constitutional questions canon). These cases analysis with the avoidance of constitutional Opportunities for inconsistent application arise at each “step” arise at each application for inconsistent Opportunities 43. 42. Corp., 533 U.S. 218, 226–27 United States v. Mead (2001). As a general 44. Academics often view the at 227 (stating that delegation entitled to at 227 (stating that Household Credit Servs. Inc. v. Pfennig, 541 U.S. 232, 239 (2004) (stating that at Household Credit Servs. Inc. v. Pfennig, 541 U.S. 232, 239 (2004) (stating that 190–91(2006); & Hickman, Merrill court, “employing traditional tools of statutory construction,” determines whether court, “employing traditional tools of statutory the statute is ambiguous. uous with respect to the specific issue, the question for the court is whether the uous with respect to the specific issue, the question for the court is whether agency’s answer is based on a permissible construction of the statute.”); ous, the court proceeds to step two to determine whether the agency interpreta- ous, the court proceeds to step two to tion is reasonable, such that it falls within the range of permissible interpretations contained in the statutory ambiguity. an agency’s power to engage in adjudication or notice-and-comment to engage in adjudication or an agency’s power rulemaking”). First, the court looks at whether “Congress has expressly delegated general author- First, the court looks at whether “Congress the force of law.” ity to the agency to promulgate rules carrying (2004). Guendelsberger conceptualizes (2004). Guendelsberger conceptualizes 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE the that by ruling requirement step zero tional 513 of the appointed to carry its upon to act under the law, and were those who were called is entitled to very great respect.”). provisions into effect, engage in notice-and- delegation of the power to matter, express congressional “by some formal adjudication, or agency interpretation comment rulemaking, this requirement. a comparable congressional intent” satisfies other indication of Id. \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 11 28-OCT-14 9:36 sions in Removal Proceedings in Light of only applies if Congress has “delegated authority to the agency gen- agency to the authority “delegated has if Congress applies only force of law” carrying the promulgate “rules erally” to not have intended to delegate a decision of such economic and political signifi- not have intended to delegate a decision Edward J. DeBartolo Corp. v. Florida cance to the agency in so cryptic a fashion.”); 485 U.S. 568, 575 (1988) (displacing Gulf Coast Bldg. & Constr. Trades Council, Chevron is premised solely on the presence of am- raise the question of whether deference the touchstone of deference, from biguity, as Justice Scalia has argued, or whether statutory interpretation, is ultimately con- the perspective of a judge performing firmly established that congressional intent gressional intent. The Court’s opinions is the touchstone of deference. Corp., 529 U.S. 120, 159 (2000) (denying Corp., 529 U.S. 120, 159 (2000) (denying court considers whether the “particular provision” interpreted falls within the dele- court considers whether the “particular gation of authority. ing deference was promulgated in the exercise of [the authority delegated gener- in the exercise of [the authority ing deference was promulgated agency interpretation must fall within the ally by Congress]”). In other words, the This is best characterized as a question of scope of the congressional delegation. was one that Congress intended the whether the particular gap within the statute agency to interpret. agency has promulgated its regulation “in the exercise of” the au- the exercise its regulation “in promulgated agency has by Congress. generally thority delegated tinct steps. 35568-nys_69-2 Sheet No. 83 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 83 35568-nys_69-2 35568-nys_69-2 Sheet No. 83 Side B 10/28/2014 12:36:12 supra ’s Step Chevron EEOC v. Arabian see also Merrill & Hickman, Merrill & Hickman, , 533 U.S. at 226–27 (stating See at 843 (deference is triggered At step two, it is unclear At step 47 note 33, at 623 (“The wide range of See id. See Mead “How Clear Is Clear” in , Edelman v. Lynchburg Coll., 535 U.S. supra , 533 U.S. at 226–27 (indicating that sufficient , Note, See, e.g. . See, e.g. , Justice Stevens cryptically explained that in finding , Justice Stevens cryptically explained See Mead Chevron 1687, 1687 (2005) (arguing that at the step one determi- 1687, 1687 (2005) (arguing that at the . , Guendelsberger, or ambiguous with respect to the specific issue”) (emphasis or ambiguous with respect to the specific EV framework should apply at all. framework should Chevron , 467 U.S. at 844 (“Sometimes the legislative delegation to an , 467 U.S. at 844 (“Sometimes the legislative , 533 U.S. at 226–27. silent . L. R See, e.g. Chevron ARV See Mead H and under what circumstances courts should find proce- find should courts what circumstances under and See Chevron 46 , 118 45. and substantive requirements. To Step zero consists of both procedural 46. 47. context, the step one determina- Although not unique to the immigration nation of ambiguity “courts identify various institutional considerations that speak an to the likelihood that Congress meant to delegate interpretive authority to agency rather than to a court”). Furthermore, it is unclear what degree of ambigu- ity is necessary to trigger 106, 114 & n.8 (2002) (finding the agency interpretation to be “the position we 106, 114 & n.8 (2002) (finding the agency interpretation to be “the position formality “may be shown in a variety of ways,” including formal adjudication, “no- in a variety of ways,” including formal formality “may be shown other indication of a comparable con- tice-and-comment rulemaking,” or “some agency has interpreted particular statutory gressional intent”). In cases where the expertise, courts also look at whether the provisions that do not implicate agency gap within the scope of the congressional agency decision served to fill a particular delegation. procedural requirements by promulgat- receive deference, the agency must meet law” and must promulgate an interpreta- ing its interpretation with the “force of of Congress’s delegation of interpretive tion that is substantively within the scope authority. 514 oc- has delegation” “implicit find an should courts circumstances NYUcurred ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 it is arbitrary, weight unless is given controlling “the agency’s regulation Step Two, citations and quota- contrary to the statute”) (internal capricious, or manifestly determines inquiry, dubbed “step zero” by commentators, tions omitted). A third whether the whether Congress the phrase “step zero”). Courts analyze note 38, at 836 (coining to interpret the statute. intended the agency \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 12 28-OCT-14 9:36 potentially applicable rules of statutory construction afford the courts considerable potentially applicable rules of statutory construction meaning may be uncovered in any particu- leeway in determining whether a plain lar provision.”). In Am. Oil, 499 U.S. 244, 257–58Am. Oil, 499 U.S. 244, deference to the EEOC interpre- (1991) (declining the EEOC the regulation because Congress only granted tation made through has delegated gen- cases, not to issue regulations). If Congress power to adjudicate has acted with suffi- courts determine if the agency eral interpretive authority, ciently formal procedures. dural “force of law” requirements satisfied. At the step one finding At the step one satisfied. of law” requirements dural “force pro- to finding ambiguity approaches judges’ varying of ambiguity, regime. inconsistent deference duce an that deference is due “when it appears that Congress delegated authority to the “when it appears that Congress delegated that deference is due make rules carrying the force of law”); agency generally to agency on a particular question is implicit rather than explicit.”). Implicit delega- agency on a particular question is implicit tions may also occur through statutory silence. ambiguity, courts should “employ the tools of traditional statutory construction.” ambiguity, courts should “employ the tools unclear whether the finding of ambiguity 467 U.S. 837, 843 n.9 (1984). It remains or should involve more substantive tools should be a purely textual determination of statutory interpretation. “if the statute is added). interpretations of the law, undermin- tion of ambiguity leaves space for divergent ing uniformity. One? 35568-nys_69-2 Sheet No. 83 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 83 35568-nys_69-2 35568-nys_69-2 Sheet No. 84 Side A 10/28/2014 12:36:12 , 15 Skid- , Cuevas- established a See, e.g. Shedding Light on , 555 U.S. 511, 530 Chevron In the immigration In the In Search of the Modern In Search of the Modern See Nat’l Cable & Telecomms. 48 step two, and circuit courts step two, and circuit Orin S. Kerr, See Chevron Negusie v. Holder Doctrine in the U.S. Courts of Appeals Doctrine in the U.S. Courts Holder v. Martinez Gutierrez, 142 S. Ct. note 33, at 619 (“[B]oth the ‘delegation’ re- 1235, 1252 (2007) (“In general, scholars agree 1235, 1252 (2007) (“In . Chevron step two may not matter much because a court’s step two may not matter much because EV abrogated by , 545 U.S. 967, 982 (2005) (“ supra . L. R Chevron Vasquez v. Holder, 635 F.3d 563, 569 (1st Cir. 2011) (stating Vasquez v. Holder, 635 F.3d 563, 569 (1st OLUM C deference to the Board’s interpretation of immigration law.”). 1, 31 (1998) (determining through empirical analysis that in 1995 through empirical analysis that 1, 31 (1998) (determining see also . , 107 EG ’s step two nears the fully deferential end of the spectrum: Courts em- fully deferential end of the spectrum: ’s step two nears the Kristin E. Hickman & Matthew D. Krueger, Kristin E. Hickman & Guendelsberger, Chevron R : An Empirical Study of the : An Empirical Study See See The following examination of inconsistency in the federal of inconsistency examination The following ON 49 Standard Chevron 49. 48. J. ALE Chevron ploying this standard retain little discretion and are required to defer to the retain little discretion and are required ploying this standard Court has found few it is unreasonable.”). The Supreme agency’s view unless unreasonable under agency interpretations that generally resolve step two in favor of the agency. generally resolve step 2011 (2012). Ultimately, is unreasonable results in remand rather determination that an interpretation meaning. than in a judicial determination of statutory Ass’n v. Brand X Internet Servs. and 1996 courts that reached step two “upheld the agency view in 89% of the and 1996 courts that reached step two applications”); broad delegation to the Attorney General, that “[i]n light of the INA’s enormously that his interpretation is unreasonable”); we would be extremely reluctant to hold Cir. 2001) (same). Nonetheless, courts Abdulai v. Ashcroft, 239 F.3d 542, 552 (3d provisions in the immigration code occasionally resolve the meaning of ambiguous unreasonable. at step two by declaring the BIA’s interpretation Gaspar v. Gonzales, 430 F.3d 1013, 1022 (9th Cir. 2005) (holding that even though Gaspar v. Gonzales, 430 F.3d 1013, 1022 question at issue, the BIA’s interpretation the statute was “silent” on the precise was unreasonable at step two), presumption that Congress, when it left ambiguity in a statute meant for imple- presumption that Congress, when it left the ambiguity would be resolved, first mentation by an agency, understood that the agency (rather than the courts) to and foremost, by the agency, and desired ambiguity allows.”) (internal quotations possess whatever degree of discretion the has “not yet considered” an ambigu- omitted). If a court determines that an agency agency interpretation rather than inter- ity, courts generally must remand for an v. Orlando Ventura, 537 U.S. 12, 16–17preting that provision de novo. INS in (2002). The Supreme Court’s holding (2009), requires courts to remand cases for a BIA ruling when the BIA performs a (2009), requires courts to remand cases than declaring the statute ambiguous and plain text analysis of the statute, rather court then finds the statute ambiguous. then filling the statutory gap, and the to reject BIA interpretations that they Thus, though courts may have the power de find unreasonable, this does not give courts the power to interpret the statute novo. Rather, courts must remand for the BIA’s reconsideration. quirement and the ‘ambiguity’ requirement provide large exceptions to the appli- cability of Y 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE dele- Congress that find court could a circumstances what under in- agency’s that the but to the agency authority interpretive gated 515 unreasonable. was nonetheless terpretation scratch,” but with the . . . we were interpreting the statute from would adopt even if permissible”). interpretation was not “the only one caveat that the agency \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 13 28-OCT-14 9:36 courts is intended to underscore the very real need for a consistent real need for a the very intended to underscore courts is in the law. produce uniformity framework to interpretive more context, inconsistency primarily stems from step zero and step from step zero stems inconsistency primarily context, one. 35568-nys_69-2 Sheet No. 84 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 84 35568-nys_69-2 35568-nys_69-2 Sheet No. 84 Side B 10/28/2014 12:36:12 . de EV In 54 50 . L. R ’s second Francis v. As a re- ASH 53 See Mead . W EO G as defined in [18 U.S.C. , 74 For example, courts 51 (“Although the agency’s inter- Principle See id. because Congress has not dele- because Congress Accardi 52 , 533 U.S. 218, 229 (2001) (“Congress . . . , 533 U.S. 218, 229 (2001) (“Congress . . The respect. , 558 F.3d at 907–08, 911(granting deference to , 23 I. & N. Dec. 491 (BIA 2002)] may have persuasive , 23 I. & N. Dec. 491 (BIA 2002)] may have Skidmore , Judge Easterbrook suggested that the BIA might receive , Judge Easterbrook suggested that the Flores Marmolejo-Campos ’s “force of law” requirement, not all BIA interpreta- not all BIA of law” requirement, ’s “force Provisions, and “Domestic Policy” Provisions Policy” “Domestic and Provisions, , Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) v. Holder, 558 F.3d 903, 909 (9th Cir. , Marmolejo-Campos , Matter of Martin In United States v. Mead Corp Id. Mead See, e.g. See, e.g. See ’s lines.”). The fact that 18 U.S.C. § in the INA 16 is expressly referenced the Supreme Court observed that a general delegation of in- delegation that a general Court observed the Supreme Even when the BIA issues an interpretation of the INA that of the INA an interpretation the BIA issues Even when , “Chevron deference depends on delegation”). Judge Easterbrook has hinted , “Chevron deference depends on delegation”). ).” 8 U.S.C. § The INA therefore 1227(a)(2)(E)(i) (2012) (emphasis added). 54. 53. Cir. 2003) (explaining that per Flores v. Ashcroft, 350 F.3d 666, 671 (7th 50. 52. if he or she is convicted of a crime Under the INA, an alien is removable 51. ”). C. Procedural Provisions, Issue”: Criminal and the “Specific Delegation the BIA’s interpretation of “crime of moral turpitude” but then reviewing “the BIA’s finding regarding the specific act for which the petitioner was convicted novo force, and we must give it careful consideration, it has no binding effect along force, and we must give it careful consideration, Chevron (18 U.S.C. §Reno, 269 F.3d 162, 168 (3d Cir. 2001) 16 “is not transformed into an immigration law merely because it is incorporated into the INA.”). pretation in [ something approximating to interpret that statute. does not amount to a delegation of authority (en banc) (“Whether the Board’s interpretations of the INA satisfy the Board’s interpretations of the INA (en banc) (“Whether Board’s decision takes”). Whether agency requirement depends on the form the is essentially a question of statutory action falls within the scope of the delegation interpretation. Thomas W. Merrill, criminal code in order to determine necessitates that the BIA interpret the federal as a crime of violence. whether a state law conviction qualifies Mead overreach, explaining that “just as courts at the underlying threat of prosecutorial United States Attorney when [a federal do not defer to the Attorney General or in a criminal prosecution, so there is no criminal statute] must be interpreted must be construed in a removal pro- reason for deference when the same statute ceeding.” may not have expressly delegated authority or responsibility to implement a partic- may not have expressly delegated authority ular provision or fill a particular gap.”). of violence ( of domestic violence, meaning “any crime § 16] satisfies BIA. delegation to the of Congress’s within the scope tions fall 569, 601 (2006) (“Determining the scope of delegated power is basically a question 569, 601 (2006) (“Determining the scope of statutory interpretation.”). 516 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 14 28-OCT-14 9:36 gated the authority to interpret criminal law to the BIA. to interpret criminal law to gated the authority do not defer to BIA interpretations of predicate criminal offenses BIA interpretations of predicate do not defer to statute, listed in the immigration Mead agency power to does not necessarily grant an terpretive authority every provision in a statute. give meaning to particularize the to BIA interpretations that sult, courts defer whether pred- in the INA but review de novo meaning of provisions interpretations. qualify under those BIA icate criminal offenses 35568-nys_69-2 Sheet No. 84 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 84 35568-nys_69-2 35568-nys_69-2 Sheet No. 85 Side A 10/28/2014 12:36:12 55 with and other 57 In contrast, the 63 court reasoned that in court reasoned that “evoke[d] none of th[ose] Bamidele Bamidele The Alhuay v. Att’y. Gen., 661 F.3d 534, 545 (11th Alhuay v. Att’y. Gen., 661 F.3d 534, 545 Relying on this type of analysis, courts on this type of analysis, Relying 61 56 such that the BIA’s familiarity with the such that the BIA’s familiarity note 33, at 621. 62 See also supra , 99 F.3d at 557 (denying deference to BIA interpretation , 99 F.3d at 557 (denying deference to BIA Other circuits have rejected the Third Circuit’s Other circuits have 58 the Third Circuit refused to defer to the BIA’s the Third Circuit 60 59 Part III.B.3. , 99 F.3d at 562 (“Moreover, the latter two cases addressed termi- , 99 F.3d at 562 (“Moreover, the latter two Garcia v. Att’y Gen., 553 F.3d 724, 727 (3d Cir. 2009) (denying Garcia v. Att’y Gen., 553 F.3d 724, 727 and (“Each of these cases concerned matters labyrinthine in their complex- at 843–44. Id. See infra Compare Bamidele Bamidele Id. First, the circuits have split on whether to grant deference to have split on whether to grant First, the circuits When Congress has not clearly expressed an intent to delegate intent to an expressed not clearly has Congress When 55. Council, Inc., 467 U.S. 837, 843 Chevron U.S.A., Inc. v. Natural Res. Def. 56. 57. 58. Guendelsberger, 59. 1996). Bamidele v. INS, 99 F.3d 557 (3d Cir. 60. 8 U.S.C. § 1256 (1952). 61. 62. 63. Asika v. Ashcroft, 362 F.3d 264, 265 (4th Cir. 2004) (granting deference to BIA Asika v. Ashcroft, 362 F.3d 264, 265 (4th (1984). the BIA’s interpretations of procedural provisions in the INA, such of procedural provisions the BIA’s interpretations For example, in or effective date provisions. as statutes of limitation Bamidele v. INS 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE provision, particular or issue,” a “specific interpret to authority 517 and conferred authority agency’s generally look to “the courts must in- if a congressional to determine circumstances” other statutory is implicit. tent to delegate \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 15 28-OCT-14 9:36 reasoning and have deferred to BIA interpretations of § deferred to BIA interpretations reasoning and have 1256’s stat- provision. ute of limitations guidance. INA could provide the court valuable have split on whether the BIA should receive deference for inter- deference BIA should receive on whether the have split in the INA provisions of some procedural pretations interpretation of the five-year statute of limitations contained in the five-year statute of limitations interpretation of 8 U.S.C. § 1256. cases where courts had deferred to the BIA, the provisions at issue had deferred to the BIA, the cases where courts and involved the interpreta- were “labyrinthine in their complexity” the INA that bore some “unique” tion of substantive provisions of relation to immigration, provisions that do not “involve agency expertise in interpreting the not “involve agency expertise provisions that do immigration law.” statute of limitations at issue in of § 1256), deference to BIA interpretation of §amendment to INA), 1256 after 1996 interpretation of § 1256). considerations,” as it was “a general legal concept with which the considerations,” as it was “a general Cir. 2011) (finding § the appeal); Kim v. 1256 unambiguous and dismissing (finding §Holder, 560 F.3d 833, 837 (8th Cir. 2009) relatively unambiguous 1256 interpretation of provision). and deferring to the Attorney General’s nology which took on unique import and meaning informed by the INS’s interpre- tation of its governing statute.”). ity in which our analysis would be bolstered by our reliance on the expertise of the ity in which our analysis would be bolstered by our reliance on the expertise of INS.”). 35568-nys_69-2 Sheet No. 85 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 85 35568-nys_69-2 35568-nys_69-2 Sheet No. 85 Side B 10/28/2014 12:36:12 with with But see Chevron frame- ). Chevron deference to the Chevron Each of these This Note will 68 69 Jean-Louis v. Att’y Gen., Chevron question and contending that ”). opinion that the panel in that Compare ’s goal. The Chevron Chevron Chevron Additionally, courts have split on Additionally, courts 65 Gonzalez-Sandoval to adopt ambiguity as the sole touch- to adopt ambiguity is eligible for deference. 67 As a final example, courts are divided on As a final example, Chevron 66 Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. 2004) (granting Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. Akindemowo v. INS, 61 F.3d 282, 284–85 (4th Cir. 1995) (defer- Negusie v. Holder, 555 U.S. 511, 530 (2009) (Stevens, J., concurring) . 64 “accounts for the different institutional competencies of agencies and Id Compare Compare See Second, courts have split on whether to defer to the BIA’s in- defer to the BIA’s on whether to courts have split Second, If courts read Smalley v. Ashcroft, 354 F.3d 332, 335–36 (5th Cir. 2003) (“[W]e accord ‘sub- 64. 65. 67. 8 U.S.C. § 1227(a)(2)(A)(ii) (2012). 68. 66. 8 U.S.C. § 1227(a)(2)(A)(i)(I) (2012). 69. Chevron 518 an executive as can as competently at least deal can judiciary NYUagency.” ANNUAL SURVEY OF AMERICAN LAW the INA. provisions in “domestic policy” of numerous terpretations [Vol. 69:503 not proce- policy and are foreign do not implicate Such provisions that apply domestically. questions of law are open-ended dural, but to the whether to defer disagreed on courts have For example, of 8 U.S.C. §BIA’s interpretation “relating to ob- 1101(a)(43)(S)’s provision. struction of justice” \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 16 28-OCT-14 9:36 whether the BIA’s interpretation of the provision “single scheme of interpretation of the provision whether the BIA’s criminal misconduct” whether to defer to the BIA’s interpretation of the phrase “crime of to the BIA’s interpretation of the whether to defer moral turpitude.” provisions is ambiguous, but none implicates the BIA’s immigra- but none implicates the provisions is ambiguous, tion-specific expertise. 582 F.3d 462, 477 (3d Cir. 2009) (stating that Congress did not intend for the 582 F.3d 462, 477 (3d Cir. 2009) (stating of “crime involving moral turpitude” be- Attorney General to decide the meaning even the immigration statute itself.”), cause the phrase “is a term of art, predating with of the INA’ and its definition of the stantial deference to the BIA’s interpretation phrase ‘moral turpitude.’”). stone of deference and systematically defer to all BIA interpreta- and systematically defer to stone of deference and domestic policy provisions in tions of ambiguous procedural the INA, they will fail to realize work should allocate interpretive questions between courts and the work should allocate interpretive competence. BIA based on relative institutional deference to the BIA’s interpretation of “relating to obstruction of justice”), deference to the BIA’s interpretation of 2011) (denying Denis v. Att’y Gen., 633 F.3d 201 (3d Cir. of justice”). BIA’s interpretation of “relating to obstruction ring to the BIA’s interpretation of “single scheme of criminal misconduct.”), ring to the BIA’s interpretation of “single 616 (9th Cir. 1990) (interpreting “single Gonzalez-Sandoval v. INS, 910 F.2d 614, without mentioning scheme of criminal misconduct” de novo, Michel v. INS, 206 F.3d 253, 267 n.1 (2d Cir. 2000) (Cabranes, J., concurring) Michel v. INS, 206 F.3d 253, 267 n.1 the (arguing that the majority should reach case gave any consideration whatsoever to “there is no indication from the courts: Courts are expert at statutory construction, while agencies are expert at courts: Courts are expert at statutory construction, while agencies are expert statutory implementation.”). ( 35568-nys_69-2 Sheet No. 85 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 85 35568-nys_69-2 35568-nys_69-2 Sheet No. 86 Side A 10/28/2014 12:36:12 Chevron and respect legisla- step zero analysis of step zero analysis Specifically, courts re- Specifically, 70 and the BIA has applied and the 72 8 C.F.R. § (2009) 1003.1(a)(1) Chevron Chevron deference. At the outset, it is At the most general level, the 73 see also decision established procedural Chevron Unless the ambiguous statutory provi- the ambiguous statutory Unless Mead 71 to defer in all cases. Procedural Requirements for Deference Procedural Requirements Chevron Part II.B (characterizing the BIA’s expertise in immigration- Part III. , Higgins v. Holder, 677 F.3d 97, 109 (2d Cir. 2012) (Katzmann, J., , Higgins v. Holder, 677 F.3d 97, 109 (2d D. of Law” Requirement: The Step Zero “Force 8 U.S.C. §(2009) (giving the Attorney General the power to “es- 1103 See infra See, e.g. See infra See Until the past few years, the federal courts of appeals have years, the federal courts of Until the past few The Supreme Court’s 70. 71. 72. 73. clear that the BIA, as the Attorney General’s delegate, is entrusted clear that the BIA, as the Attorney with the administration of the INA. struggled toward consensus over the struggled toward I.A described the of BIA opinions. Part the procedural sufficiency largely converged in developing manner in which the circuits have with which the BIA must issue its rules concerning the formality though a handful of incon- opinions in order to receive deference, process provides a template for sistencies remain unresolved. The converge in developing a rule re- how the circuits should similarly expertise with respect to the quiring consideration of the BIA’s deferring. Courts should estab- “specific issue” in question before lish a basic principle—in of law” cases, procedural for- the “force cases, agency expertise—andmality, and in the “specific issue” cases rather than mechani- reason from that principle in specific cally applying formality as a prerequisite to 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE this principle. to implement a rule propose 519 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 17 28-OCT-14 9:36 tive intent. tablish such regulations . . . necessary for carrying out this section” of the INA and the power to “delegate such authority”); sion in question implicates BIA expertise implicates sion in question is “silent” on the provision in question, concurring) (arguing that even if the INA “to the extent that it is within courts should only defer to the BIA’s interpretation in immigration law, as long as it is the domain of the agency’s special expertise reasonable”). specific subject matter and the INA). its expertise to interpret that statutory provision, courts have no rea- courts have that statutory provision, to interpret its expertise inter- implicitly delegate intended to that Congress son to believe to expert BIA to the BIA. By deferring only pretive authority questions of law the INA and reviewing all other interpretations of honor the purposes of de novo, courts BIA also meets the “force of law” requirement, as the agency BIA also meets the “force of viewing BIA interpretations should consider, as part of the as part should consider, interpretations BIA viewing step zero threshold inquiry, whether the BIA exercised its expertise BIA exercised its whether the threshold inquiry, step zero the statute. in interpreting 35568-nys_69-2 Sheet No. 86 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 86 35568-nys_69-2 35568-nys_69-2 Sheet No. 86 Side B 10/28/2014 12:36:12 reh’g note Chevron supra However, 75 Lin v. DOJ, 416 , the Court also Mead Bressman, as “[a] very good very as “[a] see also See , the Court considered “the Mead treatment.” to determine whether interpreta- Chevron Barnhart treatment is express congressional authoriza- Barnhart v. Walton at 230 n.12. Outside of notice-and-comment , the Court explained that any interpretation that , the Court explained that any interpretation See id. Chevron , 535 U.S. 212, 222 (2002). understood under understood as an example of a case in which formal adjudication as an example of a case in which formal Mead Courts generally defer to precedential BIA Courts generally BIA opinions not designated as precedential BIA opinions not 74 76 77 deference because they are made with a lawmaking pre- deference. Chevron , Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (Nov. 13, 2006). Aguirre-Aguirre and factors set forth in Barnhart v. Walton Chevron Mead See, e.g. First, the BIA has the power to issue precedential decisions, the power to issue precedential First, the BIA has and 74. 480 U.S. 421, 448 (1987); INS v. Cardoza-Fonseca, 76. 8 C.F.R. § vote of the per- 1003.1(g) (2009) (providing that “[b]y majority 77. 75. 218, 229 (2001) (“A very good indi- United States v. Mead Corp., 533 U.S. (giving the BIA the power “to act as the Attorney General’s delegates in the cases power “to act as the Attorney General’s (giving the BIA the that come before them”). 520 case- of a process through the INA] [to meaning concrete “give[s] NYU adjudication,” by-case ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 18 28-OCT-14 9:36 decisions, reasoning that these binding decisions are promulgated that these binding decisions decisions, reasoning law. with the force of indicator of delegation meriting of delegation indicator expressly lists the related expertise of the Agency, the interstitial nature of the legal question, of the statute, the complexity of that importance of the question to administration the Agency has given the question administration, and the careful consideration 212, 222 (2002). over a long period of time . . . .” 535 U.S. of the Board rendered by a three- manent Board members, selected decisions may be designated to serve as precedents member panel or by the Board en banc or issues”). in all proceedings involving the same issue the BIA produces opinions in multiple formats, and courts have formats, and courts in multiple produces opinions the BIA of law” satisfy the “force formats fail to some of these found that every in- deferring to than mechanically Thus, rather requirement. interpreta- only to BIA BIA, courts defer issued by the terpretation the force of law requirement. tions that satisfy courts in designated as binding on immigration which are specially future adjudications. F.3d 184, 189 (2d Cir. 2005) (Katzmann, J., concurring) (explaining that “it is 2005) (Katzmann, J., concurring) F.3d 184, 189 (2d Cir. matter, delegated the authority to beyond cavil that Congress has, as a general of law” to the Attorney General), make immigration rules carrying the force en banc granted cator of delegation meriting adjudication process that produces the tions to engage in the rulemaking or is claimed.”). In regulations or rulings for which deference courts have applied varying versions of rulemaking and formal adjudication, lower Mead was due 32, at 1445–46 how circuit courts vacillate between applying factors set (describing forth in deference. 533 U.S. at 230, 232. In (en banc) (explaining that “the Board’s precedential orders, which bind third par- ties, qualify for “foster[s] fairness and deliberation” and “bespeaks the type of legislative activity “foster[s] fairness and deliberation” and to the ruling” might receive that naturally binds more than the parties tense” whereas unpublished BIA opinions do not receive deference “because they do not bind future parties”). tions handed down outside the notice-and-comment or formal adjudication con- tions handed down outside the notice-and-comment texts receive deference). In 35568-nys_69-2 Sheet No. 86 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 86 35568-nys_69-2 35568-nys_69-2 Sheet No. 87 Side A 10/28/2014 12:36:12 , INAL : F PPEALS A Gutnik v. Gonzales Precedential BIA “respect,” a non- “respect,” 81 Generally, the BIA Generally, the observed that “[o]ut of all 80 MMIGRATION I Arobelidze Skidmore deference. However, in many deference. However, OARD OF : B nor the definition the BIA adopted in However, in some cases courts some in However, 78 HEET deference.”). Overruling Chevron S ACT F , 558 F.3d at 909 (“Recognizing that the BIA’s inter- , 558 F.3d at 909 (“Recognizing that the Chevron deference. Rodriguez-Rodriguez http://www.justice.gov/opa/biafinalrule.pdf. , Arobelidze v. Holder, 653 F.3d 513, 520 (7th Cir. 2011) (“Today , Arobelidze v. Holder, 653 F.3d 513, 520 Chevron 79 See, e.g. See Marmolejo-Campos available at when reviewing its unpublished orders.”). Summary affirmances are appropriate when the immigra- are appropriate when the Summary affirmances , Velazquez-Herrera v. Gonzales, 466 F.3d 781, 783 (9th Cir. 2006) (“We , Velazquez-Herrera v. Gonzales, 466 F.3d 82 Second, the BIA adjudicates in two formats: Adjudication by a Adjudication in two formats: the BIA adjudicates Second, 3, 82. 8 C.F.R. §BIA member “shall 1003.1(e)(4)(i) (2009) (providing that a 78. 79. 80. conferred on the BIA the power By regulation the Attorney General has 81. U.S. Dep’t of Justice, However, dicta contained in precedential opinions do not receive deference. However, dicta contained in precedential ULE affirm the decision of the . . . immigration judge, without opinion, if the Board affirm the decision of the . . . immigration in the decision under review was cor- member determines that the result reached rect; that any errors in the decision under review were harmless or nonmaterial”; and that “[t]he issues on appeal are squarely controlled by existing Board or fed- eral court precedent and do not involve the application of precedent to a novel so factual situation” or “[t]he factual and legal issues raised on appeal are not substantial that the case warrants the issuance of a written opinion in the case”). we hold that non-precedential Board decisions that do not rely on binding Board we hold that non-precedential Board decisions precedent are not afforded this case constitutes a statutory interpretation that carries the ‘force of law.’”)this case constitutes a statutory interpretation (in- ternal citations omitted). R See, e.g. of these two definitions (or any other decline to reach the question whether either of 8 U.S.C. §definition) is a permissible construction 1227(a)(2)(E)(i) because neither the dictum in the circuits to address the question, we are the only one to go the other way” and the circuits to address the question, we to non-precedential BIA decisions. joined the other circuits in denying deference Id. 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE do therefore and future cases, in judges immigration bind do not receive not 521 adjudication by a panel. single member and in 469 F.3d 683, 690 (7th Cir. 2006), the court \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 19 28-OCT-14 9:36 grant non-precedential decisions grant non-precedential on the persuasiveness deference based form of judicial mandatory fact of on the mere rather than reasoning of an agency’s delegation. pretations of the I.N.A. are entitled to at least this much respect, we have applied pretations of the I.N.A. are entitled to at Skidmore proceedings before it.” 8 C.F.R. “to prescribe procedures governing § 1003.1(d)(4). decisions may only be issued by a panel, so single-judge BIA opin- be issued by a panel, so single-judge decisions may only receive ions do not generally case, that member single BIA member reviews a cases in which a judge’s deci- affirmance of the immigration will issue a summary sion. employs single-member adjudication “in these straightforward cases adjudication “in these straightforward employs single-member within the Board been no historic disagreement where there has in which there is a and panel adjudication in cases over the result” law, and provide clear errors of fact, interpret the need to “correct the exercise of discretion.” guidance regarding 35568-nys_69-2 Sheet No. 87 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 87 35568-nys_69-2 35568-nys_69-2 Sheet No. 87 Side B 10/28/2014 12:36:12 , How- 85 Gutnik v. Gonzales observed that “[o]ut of all In these cases, the force In these cases, the 86 Arobelidze , 19 F.3d at 546 (“If the Board chooses to Courts have found that summary have found that Courts deference.”). In overruling 84 Panrit . . . case law, the BIA’s governing regulation, and its . . . case law, the BIA’s governing regulation, Chevron Mead entirely in reviewing what Judge Posner described entirely in reviewing , Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir. 2003) (super- , Secaida-Rosales v. INS, 331 F.3d 297, , Arobelidze v. Holder, 653 F.3d 513, 520 (7th Cir. 2011) (“Today , Arobelidze v. Holder, 653 F.3d 513, 520 8 C.F.R. § to whom an 1003.1(e)(5) (2011) (“If the Board member Alternatively, a single BIA member may write a non-prec- member may a single BIA Alternatively, Chevron 83 See id. See See, e.g. See, e.g. Inconsistency remains in this area because some judges limit in this area because some Inconsistency remains 84. 83. 85. 86. at 520. The Ninth Circuit found that single-member BIA opinions lacked the at 520. The Ninth Circuit found that 522 or harmless were any errors correct, below was decision judge’s tion NYU insub- are on appeal issues and legal factual and the immaterial, ANNUAL SURVEY OFstantial. AMERICAN LAW [Vol. 69:503 of rely on the express reasoning of the immigration judge in denying suspension deportation, that reasoning will be the sole basis for our review, and if we find that the reasoning inadequate, we will grant the petition for review and will reverse holding of the immigration judge.”). \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 20 28-OCT-14 9:36 affirmances are generally not entitled to deference because as non- deference because not entitled to are generally affirmances the force of law. do not carry opinions they precedential edential one-judge opinion. edential appeal is assigned determines, upon consideration of the merits, that the decision appeal is assigned determines, upon consideration opinion, the Board member shall issue a is not appropriate for affirmance without the decision under review . . . .”). brief order affirming, modifying, or remanding v. Gonzales, 455 F.3d 1006, 1014 internal policies and practices.” Garcia-Quintero (9th Cir. 2006). that when the BIA issues a summary seded by statute on other grounds) (noting the decision of the IJ directly”); Gao v. affirmance, “it is appropriate . . . to review 2002) (superseded by statute on other Ashcroft, 299 F.3d 266, 271 (3d Cir. its own opinion, however, and either grounds) (“When the BIA does not render a Court of Appeals must then review the defers or adopts the opinion of the IJ, 1167, 1170 (7th Cir. 1995) (“If the BIA decision of the IJ.”); Cuevas v. INS, 43 F.3d the IJ’s analysis is the sole basis for our adopts the reasoning of the IJ, however, BIA, 44 F.3d 1251, 1255 (4th Cir. 1995) review . . . .”); Gandarillas-Zambrana v. on the express reasoning of the [IJ] . . ., (holding that “if the BIA ‘chooses to rely our review, and if we find that reasoning that reasoning will be the sole basis for of the [IJ].’”)inadequate, we will . . . reverse the holding (quoting Panrit v. INS, 19 F.3d 544, 546 (10th Cir. 1994)); of law requirement is satisfied by the promulgation of these past is satisfied by the promulgation of law requirement opinions. BIA precedential opinions that deference to immigration judge the rule requiring Seventh Circuit opinions. In one case, the rely on BIA precedential avoided we hold that non-precedential Board decisions that do not rely on binding Board we hold that non-precedential Board decisions precedent are not afforded force of law “[i]n light of the circuits to address the question, we are the only one to go the other way” and the circuits to address the question, we to non-precedential BIA decisions. joined the other circuits in denying deference Id. 469 F.3d 683, 690 (7th Cir. 2006), the court in 469 F.3d 683, 690 (7th Cir. 2006), the court ever, in the absence of a reasoned BIA opinion, courts directly re- opinion, courts reasoned BIA the absence of a ever, in to precedential judge’s decision and defer view the immigration the immigration judge. opinions cited by 35568-nys_69-2 Sheet No. 87 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 87 35568-nys_69-2 35568-nys_69-2 Sheet No. 88 Side A 10/28/2014 12:36:12 A-T-, Thus, 93 In re and sev- 89 In that case, In that 87 , and Judge Posner In re S-E-G- the petitioner was not a was not the petitioner However, the BIA’s sum- However, 88 90 In re S-E-G- C-A-, 23 I. & N. Dec. 951, 959–61 (BIA , 547 U.S. 183 (2006) (per curiam), that the , 547 U.S. 183 (2006) (per curiam), that In re in which the Seventh Circuit rejected the in which the Seventh in deferring to the BIA’s construction of in deferring to 91 E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2008); E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2008); , This approach is consistent with the approach This approach is 92 In re Gonzales v. Thomas Chevron at 586; Rivera-Barrientos v. Holder, 666 F.3d 641, 652 (10th Cir. 2012) (defer- at 615–16 of the Supreme Court’s admonition to the (“We are mindful Id. See id. See Gatimi v. Holder at 430. Id. 91.Cir. 2009). Gatimi v. Holder, 578 F.3d 611 (7th 92. 87. 429 (7th Cir. 2009). Benitez Ramos v. Holder, 589 F.3d 426, 88. test is premised on the idea that Posner explains that the social visibility 89. 24 I. & N. Dec. 579 (BIA 2008). 90. 93. 2006). 24 I. & N. Dec. 296, 304 n.4 (BIA 2007) (vacated and remanded on other grounds 24 I. & N. Dec. 296, 304 n.4 (BIA 2007) by 24 I. & N. Dec. 617 (AG 2008)); one “can be a member of a particular social group only if a complete stranger one “can be a member of a particular you in the street, because of could identify you as a member if he encountered behavior or other discernible characteris- your appearance, gait, speech pattern, tic.” 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE a denying opinion” [BIA] one-member terse, characteristically as “a that ground on the removal of withholding petitioner noncitizen 523 group.” a “particular social a member of he was not \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 21 28-OCT-14 9:36 argued for in this Note: Because courts are just as competent to Note: Because courts are just argued for in this is little reason social group” as the BIA, there interpret “particular hand, the Tenth BIA on the issue. On the other to defer to the a noncitizen asy- a single-member opinion denying Circuit reviewed lum and cited test. group” as based on the social visibility “particular social courts of appeals, in ring to a one-member opinion relying on the social visibility test). Board’s definition of ‘particular social group’ is entitled to deference. The issue in Board’s definition of ‘particular social group’ a particular social group, a difficult issue that case was whether a family could be the Court held that the Board should on which the Board had not opined; and ‘social visibility’ as a criterion for have an opportunity to do so. But regarding Board has been inconsistent rather than determining ‘particular social group,’ the social groups” without reference to silent. It has found groups to be “particular cases, refusing to classify socially invisi- social visibility, as well as, in this and other but without repudiating the other line of ble groups as particular social groups decisions are inconsistent, a court cannot cases. When an administrative agency’s to that one, unless only one is within pick one of the inconsistent lines and defer the scope of the agency’s discretion to interpret the statutes it enforces or to make policy as Congress’s delegate. Such picking and choosing would condone arbitrari- ness and usurp the agency’s responsibilities.”) (internal citations omitted). social visibility test. mary affirmance had not mentioned mary affirmance the petitioner was a gang member, and government lawyers argued lawyers member, and government was a gang the petitioner visibility” test on the “social that based to group, citing of a particular social member eral other precedential BIA opinions. precedential eral other instead relied on judicial analysis of the social visibility question, judicial analysis of the social instead relied on citing 35568-nys_69-2 Sheet No. 88 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 88 35568-nys_69-2 35568-nys_69-2 Sheet No. 88 Side B 10/28/2014 12:36:12 97 . the Chev- would 95 , 99 . Rodriguez-Rodriguez ] of the broad definition found Chevron Christensen v. Harris County deference to Estrada-Espinoza v. Mukasey Estrada-Espinoza v. Restrepo v. Att’y Gen., 617 F.3d 787, 796 In 94 Chevron but see Rodriguez-Rodriguez , 546 F.3d at 1151. v. Harris County, , 546 F.3d at 1157 (citing Christensen et seq. ] is a reasonable one and that it is appropriate to exercise ] is a reasonable one and that it is appropriate at 1157 (“According Gaiskov v. Holder, 567 F.3d 832, 835 (7th Cir. 2009) (“This court has Gaiskov v. Holder, 567 F.3d 832, 835 (7th rather than deferring under Judulang v. Holder, 132 S. Ct. 476, 483 n.7 (2011) (“[T]he more apt 98 , but only provide[for later interpretation” ] a ‘guide’ Estrada-Espinoza See id. Estrada-Espinoza See The Ninth Circuit compared the BIA’s guide to “opinion compared the BIA’s guide The Ninth Circuit deference.”). but see 96 Finally, even when the BIA issues precedential opinions via opinions BIA issues precedential even when the Finally, applied to this guide because the BIA did not construe the guide because the BIA did not applied to this 95. 96. 97. 98. 5 U.S.C. § 551 99. 94. 1147, 1157 (9th Cir. 2008) (en Estrada-Espinoza v. Mukasey, 546 F.3d Rodriguez-Rodriguez in 18 U.S.C. § 3509 as an interpretive touchstone is reasonable.”). Chevron concluded that the BIA’s use [in 529 U.S. 576, 587 (2000)). (3d Cir. 2010) (“We conclude that the BIA’s definition of sexual abuse of a minor (3d Cir. 2010) (“We conclude that the BIA’s [in be inappropriate because the BIA did not construe the statute and provide a uni- be inappropriate because the BIA did not it developed an advisory guideline for fu- form definition in the decision. Rather, ture case-by-case interpretation.”); banc); analytic framework in this case is standard ‘arbitrary [or] capricious’ review under any the APA . . . [when] [t]he BIA’s . . . policy . . . is not an interpretation of statutory language . . . .”). Additionally, if a BIA interpretation does not define a particular Additionally, if a BIA interpretation then courts should ap- term in the INA through its interpretation, under the Administrative Proce- ply arbitrary and capricious review dure Act 524in the ambiguities out the worked largely have courts although NYU remain. approaches some inconsistent requirement, of law” “force ANNUAL SURVEY OF AMERICAN LAW that portions of opinions may not defer to judges, courts panels of [Vol. 69:503 judges. In immigration binding on other insufficiently they find interpreta- to BIA have denied deference some courts particular, BIA inter- reasoning that of “guidelines,” take the form tions that the meaning of “not interpret a statute within pretations that do Chevron deference. should not receive \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 22 28-OCT-14 9:36 letters-like interpretations contained in policy statements, agency contained in policy letters-like interpretations of the kind the Supreme manuals, and enforcement guidelines” in Court found unworthy of deference Ninth Circuit reviewed the BIA’s interpretation of “sexual abuse of the BIA’s interpretation Ninth Circuit reviewed a guide to inter- that took the form of a minor,” an interpretation the idea that conviction. The court rejected preting criminal ron interpreta- statute to provide a uniform statutory specific text of the tion. 35568-nys_69-2 Sheet No. 88 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 88 35568-nys_69-2 35568-nys_69-2 Sheet No. 89 Side A 10/28/2014 12:36:12 to ’s con- Chevron Chevron Mead and later as a 101 first as the over- 100 step zero on the BIA’s step zero on the Chevron Skidmore v. Swift note 48, at 1294 (“[A]gency expertise is II. deference.”) (internal citations omitted). supra as a doctrine and to which all the other factors as a doctrine and to which all the other E. Conclusions This ongoing reliance on agency exper- This ongoing reliance on agency Chevron 102 . ’s “force of law” inquiry, the circuits have of law” inquiry, ’s “force Skidmore , which appears to dispose of the idea that , which appears to dispose of IMMIGRATION EXPERTISE Mead Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 651–52 Chevron , United States v. Moore, 95 U.S. 760, 763 (1877) (“The construc- , United States v. Moore, 95 U.S. 760, 763 Chevron Hickman & Krueger, Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, Chevron U.S.A., Inc. v. Natural Res. Def. see also See, e.g. See See Agency expertise has long played a role in justifying judicial Agency expertise has long played Part II discusses the continuing validity of expertise as a basis the continuing validity of expertise Part II discusses These various issues that arise in the application of arise in the application issues that These various 100. 101. 102. (1990) (“Indeed, the judgments about the way the real world works that have gone into the [agency]’s . . . policy are precisely the kind that agencies are better the equipped to make than are courts. This practical agency expertise is one of principal justifications behind deference to agency interpretations of statutes, deference to agency interpretations tion given to a statute by those charged with the duty of executing it is always tion given to a statute by those charged and ought not to be overruled with- entitled to the most respectful consideration, are usually able men, and masters of out cogent reasons. The officers concerned the draftsmen of the laws they are after- the subject. Not unfrequently they are citations omitted). wards called upon to interpret.”) (internal 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE 525 relate.”). expertise, “[j]udges are not experts in 865(1984) (noting that while agencies have the field.”); \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 23 28-OCT-14 9:36 the principle that guides expertise. immigration and describes the BIA’s relevant for judicial deference based on the appli- states a clear test for deferring expertise. Part III test to 8 U.S.C. expertise and applies that cation of agency § of justice” provision. “relating to obstruction 1101(a)(43)(S)’s immigration law raise a significant concern: If the goals of If the goals significant concern: law raise a immigration then it is of the laws, application uniform and consistent include addressing inconsistencies context. In the immigration failing in from that arose opinions Courts can produce similarly consistent largely converged. provisions in to BIA interpretations of specific on whether to defer the inquiry at the INA by refocusing struction of expertise, instead explaining deference is predicated on agency are legislative delegation and that the underpinnings of deference tise has become doctrinally confusing in the wake of tise has become doctrinally confusing justification in arching rationale for deference in arching rationale for deference 35568-nys_69-2 Sheet No. 89 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 89 35568-nys_69-2 35568-nys_69-2 Sheet No. 89 Side B 10/28/2014 12:36:12 ] the Second, , the Su- , the Chevron 105 Mead appears to speak to 51, 66 (2007) (observing . Chevron EV precedent, suggests that for . R T . C UP S note 8, at 521 (“The opinions we federal note 8, at 521 (“The deference to EPA’s view of its statutory au- deference to EPA’s view of its statutory , 2007 Jody Freeman & Adrian Vermeule, Massachu- supra Brown & Williamson Nonetheless, even after even Nonetheless, Chevron , agency expertise became irrelevant as a factor for , agency expertise became 104 103 see also Scalia, See Chevron , Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. , Nat’l Ass’n of Home Builders v. Defenders framework thus accounts for the different institutional competen- Negusie v. Holder, 555 U.S. 511, 530 (2009) (Stevens, J., concurring) United States v. Mead Corp., 533 U.S. 218, 226–27United States v. Mead (2001) (deference : From Morality to Expertise See See See, e.g. Chevron There are two reasons courts should not defer to BIA interpre- should not two reasons courts There are 105. 103. 104. the current Court insulating expertise from politics is a greater imperative than the current Court insulating expertise forcing democratic accountability”). thority, especially in light of the “the Court’s refusal to grant (“The cies of agencies and courts: Courts are expert at statutory construction, while agen- cies are expert at statutory implementation. That the distinction can be subtle does not lessen its importance.”). statutory interpretation in those instances where Congress delegated rule-making statutory interpretation in those instances to rely on agency expertise in the formula- power to an agency and thereby sought tion of substantive policy.”); setts v. EPA subject matter [in communications law] is technical, complex, and dynamic; and subject matter [in communications law] to fill gaps where the statutes are silent”); as a general rule, agencies have authority Cir. 1999) (“ Sandoval v. Reno, 166 F.3d 225, 239 (3d judges read, and the cases we cite, are full of references to the old criteria of cases we cite, are full of references judges read, and the nature of the question presented,’ ‘agency expertise,’ ‘the technical and complex position’—and‘the consistent and long-standing agency it will take some time to longer relevant, or no longer relevant in understand that those concepts are no the same way.”). 644, 666 (2007) (finding that when two statutes seemingly mandate that the EPA 644, 666 (2007) (finding that when two look to the implementing agency’s expert act in different ways, “it is appropriate to U.S. 222 (2002) (“In this case, the inter- interpretation”); Barnhart v. Walton, 535 expertise of the Agency, the impor- stitial nature of the legal question, the related of the statute, the complexity of that tance of the question to administration the Agency has given the question administration, and the careful consideration Chevron provides the appropriate legal over a long period of time all indicate that of the Agency interpretation here at is- lens through which to view the legality Inc. v. Gulf Power Co., 534 U.S. 327, 339 sue.”); Nat’l Cable & Telecomms. Ass’n, that “[a]s it was in [ (2002) (granting deference after determining is appropriate “when it appears that Congress delegated authority to the agency it appears that Congress delegated authority is appropriate “when Justice Scalia carrying the force of law . . . .”). Additionally, generally to make rules has argued that after 526 accountability. political NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 BIA’s ex- not implicate the INA that do provisions in the tations of agency not implicate provision does First, if a statutory pertise. expertise in statu- which possess substantial expertise, then courts, statute. are the better readers of the tory interpretation, \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 24 28-OCT-14 9:36 preme Court and lower courts have continued to consider agency to consider continued have courts and lower Court preme con- in the immigration deference as relevant to granting expertise as in others. text as well determining deference. if agency expertise is not implicated, there is little reason to believe is not implicated, there is little if agency expertise to the BIA delegated interpretive authority that Congress implicitly 35568-nys_69-2 Sheet No. 89 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 89 35568-nys_69-2 35568-nys_69-2 Sheet No. 90 Side A 10/28/2014 12:36:12 Skid- Sec- as a Chevron 110 Chevron Mead Chevron deference. note 48, at 1248–50 distinguishes defer- Chevron supra no longer has any util- Mead taking the position that af- taking the position deference, from deference ” unsuitable in modern administra- 108 Skidmore Commentators offer competing are together best characterized as a “func- Skidmore However, if an ambiguous provision an ambiguous if However, 111 Skidmore note 8. 106 Hickman & Krueger, Skidmore Cf. supra and question. deference, suggesting that expertise is not rele- deference, suggesting that expertise Scalia, Chevron , Martin v. OSHRC, 499 U.S. 144, 154 (1991) (“Because historical , Martin v. OSHRC, 499 U.S. 144, 154 (1991) at 235 (majority opinion) (explaining that even though at 235 (majority opinion) (explaining Chevron , the multi-factor test in Chevron United States v. Mead Corp., 533 U.S. 218, 250 (2001) (Scalia, J. dis- United States v. Mead Corp., 533 U.S. 218, a reviewing court should defer to the BIA’s should defer court a reviewing See See id. See id. See, e.g. See generally 107 Justice Scalia’s view presumes that congressional delegation Justice Scalia’s view presumes that Although some courts and commentators have taken courts and commentators have Although some There are two strong arguments that courts need never inde- arguments that courts need There are two strong A. After to Judicial Deference of Expertise The Relevance 109. 110. 111. 106. 107. 903, 907 (9th Cir. 2009) (en Marmolejo-Campos v. Holder, 558 F.3d 108. Chevron may nonetheless apply); 109 does not apply to an interpretation that was not issued with the force of law, more senting) (finding “the anachronism of tive law). (debating whether familiarity and policymaking expertise account in the first instance for the pre- familiarity and policymaking expertise lawmaking power to the agency sumption that Congress delegates interpretive presume here that Congress intended to rather than to the reviewing court, we actor in the best position to develop invest interpretive power in the administrative these attributes.”) (internal citations omitted). banc). tionally similar” but with different emphases or as “fundamentally distinct, arising from different premises and serving different purposes”). interpretation. 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE ambiguity. statutory through 527 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 25 28-OCT-14 9:36 alone, not agency expertise, is determinative of deference. alone, not agency expertise, is determinative in the INA does implicate the BIA’s “special administrative compe- administrative “special BIA’s the implicate INA does in the tence,” understandings of the significance of this schism in principles un- understandings of the significance as a bright-line rule requiring deference to agency interpretations requiring deference to agency as a bright-line rule instead follow the provisions, courts should of ambiguous statutory deference as de- and commentators who view lead of other courts II.A sets out the exercise of agency expertise. Part pendent on the the application of and in favor of considering arguments against as a necessary condition for agency expertise to defer. First, agency expertise when deciding pendently consider of championed the conception Justice Scalia has deference rule, bright-line mandatory ence based on expertise, or delegation of interpretive au- based on an implied congressional thority, or vant to the ter ond, Justice Souter’s majority opinion in ond, Justice Souter’s majority opinion ity. 35568-nys_69-2 Sheet No. 90 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 90 35568-nys_69-2 35568-nys_69-2 Sheet No. 90 Side B 10/28/2014 12:36:12 , see it- Skid- Doctrine defer- Chevron Chevron 735, 746–47 . In one ac- In one EV as a more com- deference af- 112 but Skidmore As a practical Skidmore . L. R 116 should apply to infor- 114 , Skidmore It remains unclear at 1289 (suggesting that DMIN deference may just be a and Chevron 115 deference is based in politi- 113 as “squarely locat[ing] the re- 54 A See id. Skidmore Skidmore Skidmore Why Deference?: Implied Delegations, Mead Skidmore and note 48, at 1249 (contending that in one Skidmore, at 862 (“To the extent any congressional distinguishes which interpretations made serve different purposes: purposes: different serve note 48, at 1248–49 how (noting that “[j]ust Chevron supra See id. note 48, at 1288 (“In our view [expertise] under- note 48, at 1288 (“In our view [expertise] supra Accountability, Deference, and the Skidmore Skidmore supra merely reflects a policy of judicial prudence”). if the agency acted with the force of law, and if the agency acted deference on a theory of an implied delegation of lawmak- deference on a theory of an implied delegation , Justice Stevens’ majority opinion offered four rationales for , Justice Stevens’ majority opinion offered associates expertise with associates expertise and and , 533 U.S. at 220 (providing that doctrine.”). , Ronald J. Krotoszynski, Jr., Skidmore Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. Chevron U.S.A., Inc. v. Natural Res. Def. Chevron Chevron Hickman & Krueger, 117 Chevron See 2096, 2099 (2010) (arguing that analysis, the agency expertise factor has teeth when courts analyze analysis, the agency expertise factor has Mead . See See Mead See, e.g. Skidmore Chevron L.J. inquiry. Functionally, Bradley Lipton, Note, ALE to informally promulgated regulations. to informally promulgated 114. 115. The difference between 116. 113. 112. Hickman & Krueger, 117. In Hickman & Krueger, Mead Skidmore deference responds to the idea that Congress intends to delegate intends to idea that Congress responds to the deference quirement of (2002) (characterizing the Court’s holding in (2002) (characterizing the Court’s holding ing power”). understanding, “ matter of degree. Some commentators have characterized matter of degree. Some commentators have intent to delegate, similar to the plex inquiry aimed at identifying congressional Chevron in by an entrusted agency ought to receive deference. by an entrusted agency ought to receive whether an agency exercised its expertise in making a particular interpretation); whether an agency exercised its expertise see also 837, 844 (1984) (“If Congress has explicitly left a gap for the agency to fill, there is 837, 844 (1984) (“If Congress has explicitly left a gap for the agency to fill, there of an express delegation of authority to the agency to elucidate a specific provision the statute by regulation.”). Second, deference might be warranted because Con- gress intended that courts defer. ‘intent’ can be discerned from this language, it would appear that the listing of ‘intent’ can be discerned from this language, it would appear that the listing cal accountability). different the two doctrines are remains a matter of some debate” and explaining are remains a matter of some debate” different the two doctrines distinct” or “function- and Skidmore as fundamentally that “one can view Chevron ally similar”). girds the more significant than another. First, def- deference without citing one rationale as impliedly delegated legislative power erence might be warranted because Congress to agencies. mal agency interpretations and courts should defer based on agency expertise); mal agency interpretations and courts should also Agency Expertise, and the Misplaced Legacy of 119 Y 528 interpretation. to agency deference judicial derlying NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 26 28-OCT-14 9:36 matter, courts grant substantial—andmatter, courts mandatory—defer- effectively ence under courts grant respect—a more discretionary standard—under more count, to what extent agency expertise is relevant to to what extent agency ter ence is a pragmatic doctrine that allows courts to reach better out- courts to reach that allows pragmatic doctrine ence is a agency expertise. relying on superior comes by some policymaking functions to agencies, functions some policymaking self cites expertise as one of several rationales for judicial as one of several rationales self cites expertise deference. 35568-nys_69-2 Sheet No. 90 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 90 35568-nys_69-2 35568-nys_69-2 Sheet No. 91 Side A 10/28/2014 12:36:12 , , , The First, Chevron 121 Chevron 118 Skidmore . , 133 U. PA. L. Mead (prior to at 865 (“While agen- the Court found that 833 was not mandatory See id. . 533 U.S. at 250 (Scalia, J., Mead note 38, at (noting that while agencies have Skidmore Even in 1980, shortly before Even in 1980, shortly established a broadly applica- established a broadly at 91. Thus, in the case of the NLRB, 120 supra In that case, the Court found that an See id. Id. Id. Chevron ). decision, the Court characterized deference decision, the Court Chevron Statutory Interpretation in the Administrative State Statutory Interpretation in the Administrative typically guided by the factors set out in typically guided Merrill & Hickman, 119 Chevron Bureau of Alcohol, Tobacco and Firearms v. FLRA Bureau of Alcohol, Tobacco and Firearms v. See generally Deference then followed if the FLRA’s interpretation of its “enabling Id. The best reading of background norms of administrative law administrative of norms background of best reading The 120. 140 (1944) (The degree of this Skidmore v. Swift & Co., 323 U.S. 134, 121. 444 U.S. 555, 566 (1980). For exam- Ford Motor Credit Co. v. Milhollin, 118. in Justice Scalia was the sole dissenter 119. the Federal Labor Relations Authority (FLRA) was “entitled to considerable defer- the Federal Labor Relations Authority (FLRA) of applying the general provisions of ence” when it exercised “its special function relations.” 464 U.S. 89, 96 (1983) (in- the Act to the complexities of federal labor that “the FLRA was intended to de- ternal citation omitted). The Court explained of labor relations and to use that expertise veloped specialized expertise in its field set forth in the [Federal Labor Relations to give content to the principles and goals Act].” “deference was not mandatory, but was grounded in the exercise of judicial discre- “deference was not mandatory, but was tion”); Colin S. Diver, REV. 549, 562–67 (discussing the factors that judges used to determine (1985) whether to defer prior to thoroughness evident in its considera- judicial deference “will depend upon the with earlier and later pronounce- tion, the validity of its reasoning, its consistency it power to persuade, if lacking power to ments, and all those factors which give control.”). ple, in 1983’s Act” was “reasonable and defensible.” agency expertise in the regulated field was the principle justification for deference. FLRA grant of “official time” compensation to a union negotiator was not “reason- ably defensible” and denied deference. expertise, “[j]udges are not experts in the field.”). expertise, “[j]udges are not experts in dissenting). overlapping, illustrative terms was intended to enlarge, rather than to confine, the terms was intended to enlarge, rather overlapping, illustrative be warranted because power . . . .”). Third, deference might scope of the agency’s than courts. agencies are more politically accountable 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE re- expertise agency that suggests precedent judicial recent and 529 of Justice in spite for judicial deference central rationale mains a opinion in Justice Souter’s and despite Scalia’s view people, the Chief Executive is, and it is cies are not directly accountable to the of the Government to make such pol- entirely appropriate for this political branch be warranted because agencies have icy choices . . . .”). Fourth, deference might greater technical expertise than courts. \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 27 28-OCT-14 9:36 the landmark expertise.” in administrative as “traditional acquiescence which focused on agency expertise. which focused on traditional deference doctrine under traditional deference for courts, but was instead based on the agency interpretation’s was instead based on the agency for courts, but In 1984, “power to persuade.” agency expertise traditionally served as the principal justification served as traditionally agency expertise Prior to agency interpretations. deference to for judicial there was no uniform deference rule. Instead, courts applied a col- courts applied rule. Instead, no uniform deference there was interpretation was determine whether an agency lection of tools to due deference, 35568-nys_69-2 Sheet No. 91 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 91 35568-nys_69-2 35568-nys_69-2 Sheet No. 91 Side B 10/28/2014 12:36:12 124 Chevron reflects Chevron Thus, courts 125 Judicial Review of Dis- ] (“If 861, 872 (1994) [herein- . EV suggests that expertise L. R Breyer appears to collapse as laying down a blanket as laying 127 IEGO note 48, at 1242 (The “application of D note 38, at 834 (explaining that AN S Chevron However, Justice Breyer has taken Justice Breyer However, supra analysis. , 31 122 supra Barnhart v. Walton revolutionary.”). Instead, Justice Breyer advocates for a advocates for Justice Breyer Instead, Barnhart v. Walton, 535 U.S. 212, 222 (2002) (Breyer’s Barnhart v. Walton, 535 U.S. 212, 222 (2002) 123 Chevron note 27, at 373. Chevron 126 See also , 535 U.S. at 222 (considering whether “the interstitial nature of supra Hickman & Krueger, at 370. Merrill & Hickman, at 398. Barnhart Id. Id. See see also provides the appropriate legal lens through which to view the legality of provides the appropriate legal lens through Second, recent judicial precedent points to the continued cen- Second, recent judicial precedent Judicial Review of Discretionary Immigration Decisionmaking Judicial Review of Discretionary Immigration 127. 124. 125. 123. Breyer, 122. 126. G. Heyman, For additional discussion, see Michael the Court’s views on the comparative competence of courts and agencies to decide the Court’s views on the comparative competence technical, dynamic issues, then it offers sensible guidance.”). after the legal question, the related expertise of the Agency, the importance of the ques- tion to administration of the statute, the complexity of that administration, and of the careful consideration the Agency has given the question over a long period majority opinion explains that: “[T]he interstitial nature of the legal question, the majority opinion explains that: “[T]he interstitial of the question to administration related expertise of the Agency, the importance and the careful consideration of the statute, the complexity of that administration, a long period of time all indicate that the Agency has given the question over Chevron compulsory judicial deference to so-called implicit delegations, more than the two- compulsory judicial deference to so-called part test, is what made cretionary Immigration Decisionmaking the Agency interpretation here at issue.”). Justice Breyer suggests that courts ought to accord deference based that courts ought to accord Justice Breyer suggests capacities and strengths.” on relative “institutional deference. Most prominently, trality of agency expertise to judicial Justice Breyer’s opinion in remains important to 530 where delega- in cases even deference that mandated ble formula NYUthan explicit, rather implicit was authority of interpretive tion ANNUAL SURVEY OF judicial discretion. reducing AMERICAN LAW [Vol. 69:503 formerly an isolated pocket of ad- “turned the doctrine of mandatory deference, formula governing court-agency rela- ministrative law doctrine, into a ubiquitous tions”); \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 28 28-OCT-14 9:36 multi-factor assessment of whether the agency interpretation is due interpretation whether the agency assessment of multi-factor one could not that “there is no reason why deference, proposing . . . to the principles [of statutory interpretation] apply . . . general that courts extent to which Congress intended question of the interpretation.” the agency’s view of the proper should defer to the position that “[t]o read that “[t]o the position and counterproductive overbroad, . would be seriously rule . . senseless.” sometimes should make judgments about questions of law, in which courts about questions of law, should make judgments competence, and advantage in institutional have a comparative competing make judgments that require weighing agencies should in institu- agencies have a comparative advantage policies, where tional competence. 35568-nys_69-2 Sheet No. 91 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 91 35568-nys_69-2 35568-nys_69-2 Sheet No. 92 Side A 10/28/2014 12:36:12 131 step Chevron Chevron Barnhart Chevron deference was a at 882. Id. Skidmore a reading in line with in a reading and 128 Even if congressional intent Even if Chevron 129 -like factors into his analysis of whether note 48, at 1248 (explaining that “Breyer these arguments are best read to , the Seventh Circuit directly addressed the , the Seventh Circuit directly addressed in support of his analysis”). 130 Skidmore supra Mead deference. provides the appropriate legal lens through which to provides the appropriate legal lens through at 879. Judge Easterbrook thought differently and in at 879. Judge Easterbrook thought differently took such pains to distinguish.” into a sliding scale, a sliding into Id. B. Defining Agency Expertise ” Chevron Chevron Mead Part III (proposing an expertise-based inquiry at Chevron Skidmore. Hickman & Krueger, Krzalic v. Republic Title Co. , which INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (deferring to the BIA). and and See See See infra , in which he incorporates applies, even as he cites Though courts frequently invoke agency expertise as a reason Though courts frequently invoke In sum, agency expertise has historically justified judicial defer- justified judicial has historically agency expertise In sum, Skidmore 128. 129. In 130. 131. for deference, the concept of expertise is not precisely defined. for deference, the concept of expertise competencies under the umbrella Courts include different types of courts should view expertise as term “expertise,” but most generally distinct from judicial compe- special administrative competence time all indicate that Chevron 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE Skidmore 531 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 29 28-OCT-14 9:36 support denying deference only in a subset of immigration cases. support denying deference only courts of appeals’ widespread practice of citing agency expertise as expertise agency of citing practice widespread of appeals’ courts to grant a reason view the legality of the Agency interpretation here at issue.”). view the legality of the Agency interpretation question of whether the difference between demonstrates his approach most concisely in his opinion for the Court in demonstrates his approach most concisely v. Walton to delegate is the sole factor relevant to deference, agency expertise agency relevant to deference, is the sole factor to delegate to delegate interpretive intended evidence that Congress serves as to the agency. authority courts, includ- of statutes and many ence to agency interpretations expertise to Court, continue to rely on agency ing the Supreme courts judicial deference. Nonetheless, resolve cases implicating in reviewing BIA focused on agency expertise have not consistently whether the defer without determining decisions, and frequently the particular its particular expertise or whether BIA has exercised expertise. Part in question implicates agency ambiguous provision expertise generally explores the concept of agency II.B of this Note which differs from the BIA’s particular expertise, and characterizes that many or industry-specific expertise the technical, scientific, that, in the Part II.C explores arguments other agencies exercise. courts should not defer to the immigration context, suggest that Supreme Court has clearly found BIA at all. However, because the the BIA eligible for deference, matter of degree or a fundamentally different inquiry. 314 F.3d 875 (7th Cir. matter of degree or a fundamentally has been “a merger between 2002). The majority concluded that there deference and his concurrence stated that he did “not perceive . . . any ‘merger’ between and zero). 35568-nys_69-2 Sheet No. 92 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 92 35568-nys_69-2 35568-nys_69-2 Sheet No. 92 Side B 10/28/2014 12:36:12 framework is Administrative Chevron 134 In technical regulatory 133 : Rejecting Tax Exceptionalism in Judi- Mead A Case for Varying Interpretive Deference at the A Case for Varying Interpretive Deference at When agencies answer technical ques- When agencies 1537, 1599 (2006). . The Need for 132 EV 1. Expertise Technical “respect” due to an agency based on “the thoroughness “respect” due to an agency based on “the 373, 379 (2009) (arguing that the . L. R L.J. INN Skidmore , D. Zachary Hudson, , Skidmore v. Swift, Co., 323 U.S. 134, 140 (1944) (setting a stan- , Skidmore v. Swift, Co., 323 U.S. 134, 140 ALE M Y , 90 See, e.g. See, e.g. , 119 The need for technical expertise was the original justification expertise was the original The need for technical 134. Kristin E. Hickman, 132. 133. particularly questions that implicate policymaking—becauseparticularly questions of less appropriate at the state level than at the federal because “most states do not less appropriate at the state level than at the federal because “most states do have agencies analogous to those existing at the federal level that deal with com- plex scientific issues that may be beyond the grasp of liberally educated judges”). cial Deference dard of review for of its reasoning, its consistency with earlier evident in its consideration, the validity factors which give it power to persuade, if and later pronouncements, and all those v. Nierotko, 327 U.S. 358, 368 (1946) lacking power to control”); Soc. Sec. Bd. were compelled to decide, adminis- (“The Social Security Board and the Treasury as wages and their expert judgment is tratively, whether or not to treat ‘back pay’ Batterton v. Francis, 432 U.S. 416, 425 entitled, as we have said, to great weight.”); are accorded to administrative interpre- n.9 (1977) (“Varying degrees of deference and consistency of the agency’s posi- tations, based on such factors as the timing tion, and the nature of its expertise.”). State Level for the creation of agencies and for judicial deference to adminis- of agencies and for judicial deference for the creation trative interpretations. 532 in non-legal expertise to technical may refer expertise First, tence. NYU com- are more experts by technical staffed Agencies matter. subject ANNUAL SURVEY OF Sec- technical questions. to answer generalist judges petent than AMERICAN LAW When a the statute itself. to expertise in may refer ond, expertise [Vol. 69:503 on inter- or dependent convoluted, particularly complex, statute is intrica- close to these an agency for its consistency, nal coherence readings varying statutory ramifications of familiar with the cies and agencies to interpret the statute. Additionally, is best positioned some questions— than courts to answer may be more competent are exclusively the political decisions that their ability to channel Executive. province of the \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 30 28-OCT-14 9:36 tions dealing with scientific or economic subject matter, courts are tions dealing with scientific or economic those determinations. Judges typ- poorly positioned to second-guess scientific background possessed by ically do not have the extensive appointed experts in specialty agencies. contexts such as environmental regulation, food and drug regula- contexts such as environmental require this type of technical tion, and energy regulation frequently areas, policymaking often requires analysis of “scientific, engineer- areas, policymaking often requires are beyond the experience and ing, or other technical data that III judge.” understanding of the average Article 35568-nys_69-2 Sheet No. 92 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 92 35568-nys_69-2 35568-nys_69-2 Sheet No. 93 Side A 10/28/2014 12:36:12 In 138 note 134, at 1599 supra Additionally, outside Additionally, Zuni Public School Dis- Zuni Public School . 733, 734 (2011) (discuss- EV 136 Marsh v. Oregon Natural Res. Hickman, . L. R ICH see also 137 M see also , 109 Super Deference, the Science Obsession, and Judicial Thus, deference to expert agencies in such agencies expert to deference Thus, 135 relying on the fact that a method for calculating relying on the context, courts have honored agency superiority in agency superiority courts have honored context, , Dion v. Sec’y of Health & Human Servs., 823 F.2d 669, 673 (1st , Dion v. Sec’y of Health & Human Servs., 139 , Martin v. OSHRC, 499 U.S. 144, 154 (1991) (“Because historical fa- Martin v. OSHRC, 499 U.S. 144, 154 (1991) at 1599 (“The Environmental Protection Agency, the Food and Drug at 1599 (“The Environmental Protection See Id. See, e.g. Chevron Moreover, the exercise of technical expertise justifies defer- justifies of technical expertise the exercise Moreover, 139. Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81 (2007). 138. 135. 136. 137. Emily Hammond Meazell, ing “the principle that courts ought to be at their ‘most deferential’ when review- ing “the principle that courts ought to ing an agency’s scientific determinations”); (“Given the agencies’ comparatively greater expertise in these cross-disciplinary areas, it makes sense both that Congress would delegate substantial policy author- ity to the agencies and, consequently, would prefer the agencies to be the primary interpreters of the statutes under their administration.”). Council, 490 U.S. 360, 377 (1989) (“Because analysis of the relevant documents Council, 490 U.S. 360, 377 (1989) (“Because we must defer to the ‘informed dis- ‘requires a high level of technical expertise,’ cretion of the responsible federal agencies.’”) Gas (citations omitted); Baltimore Inc., 462 U.S. 87, 103 (1983) (“[A] review- & Elec. Co. v. Natural Res. Def. Council, Regulatory] Commission is making ing court must remember that the [Nuclear at the frontiers of science. When predictions, within its area of special expertise, as opposed to simple findings of examining this kind of scientific determination, at its most deferential.”). fact, a reviewing court must generally be in the first instance for the presump- miliarity and policymaking expertise account lawmaking power to the agency rather tion that Congress delegates interpretive here that Congress intended to invest than to the reviewing court, we presume actor in the best position to develop these interpretive power in the administrative attributes.”) (internal citations omitted); Administration, the Federal Energy Regulatory Commission, for example, are all Administration, the Federal Energy Regulatory law with more scientific disciplines.”). agencies whose responsibilities fuse the interpretation depends, in the first Cir. 1987) (“The deference due an agency’s properly viewed as within the agency’s instance, on whether the matter is more legal issue that courts are better equipped expertise or, on the contrary, as a clearly to handle.”). 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE decision-making. 533 delegate intended to likely that Congress it is more ence because technical ex- to agencies tasked with making interpretive authority generally intends This presumption that Congress pert judgments. both by the fact decision-making is supported to delegate technical to make technical better situated than Congress that agencies are were origi- and the fact that administrative agencies policy decisions decisions. the purpose of making technical nally created for \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 31 28-OCT-14 9:36 contexts promotes higher quality decisions. quality higher promotes contexts Review as Translation of Agency Science of the sci- when reviewing “super-deference” matters by granting technical agencies. of expert entific findings one example of this reasoning, the Supreme Court deferred to the this reasoning, the Supreme Court one example of interpretation in Department of Education’s trict v. DOE 35568-nys_69-2 Sheet No. 93 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 93 35568-nys_69-2 35568-nys_69-2 Sheet No. 93 Side B 10/28/2014 12:36:12 Al- 145 Policymak- Additionally, 144 , the calculation 140 i.e. , the Court found the EPA , the Court found Chevron note 134, at 1599 (“Interpreting the Internal Reve- note 134, at 1599 (“Interpreting the Internal supra Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 Chevron U.S.A., Inc. v. Natural Res. Def. , Fed. Express Corp. v. Holowecki, 552 U.S. 389, 403 (2008) (“A , Fed. Express Corp. v. Holowecki, 552 at 81 (“For one thing, the matter at issue—at 81 (“For one thing, FTC v. Cement Inst., 333 U.S. 683, 720 (1948) (“[T]he Court called Even in the absence of scientific questions, expertise may of scientific questions, expertise Even in the absence Id. See, e.g. See generally See Courts are ill suited to make such cross-disciplinary judg- to make such cross-disciplinary Courts are ill suited 143 Another reason to defer to agency decisions requiring the ap- requiring the to agency decisions reason to defer Another 142 141 140. 141. 142. 143. deference to Treasury regulations One of the arguments against judicial 144. U.S. 680, 697 (1991) (“The Bene- Pauley v. BethEnergy Mines, Inc., 501 145. at 91. The provision uses the technical term “percentile”; it refers to cutoff numbers The provision uses the technical term “percentile”; scientific calculations; and it directly (“95th” and “5th”) often associated with tells the Secretary to account for precedes another statutory provision that 5th to 95th percentile districts, that those districts, from among the middle geography or the presence of special remain ‘‘noncharacteristic’’ in respect to students (such as disabled students). is the kind of highly technical, specialized interstitial matter that Congress often technical, specialized interstitial matter is the kind of highly method for determining whether a state aid program ‘‘equalizes expenditures’’— whether a state aid program ‘‘equalizes method for determining agencies to decide.”). The Court does not decide itself, but delegates to specialized of the statute: furthered characterized the technical nature Id. results. This, however, is a matter for rule of that sort might yield more consistent and expertise in protecting the the agency to decide in light of its experience Act. For its decisions in this regard the rights of those who are covered by the political branches.”). agency is subject to the oversight of the U.S. 837 (1984). Code do not require “cross-discipli- is that interpretations of the Internal Revenue nary” expertise. Hickman, nue Code, by contrast, rarely, if ever, requires cross-disciplinary scientific or nue Code, by contrast, rarely, if ever, technical expertise.”). highly technical regulatory program. The fits Act has produced a complex and eligibility criteria necessarily require sig- identification and classification of medical of judgment grounded in policy con- nificant expertise and entail the exercise defer to the agency entrusted cerns. In those circumstances, courts appropriately by Congress to make such policy determinations.”). attention to the express intention of Congress to create an agency whose member- ship would at all times be experienced, so that its conclusions would be the result of an expertness coming from experience.”). 534 type was the expenditures” “equalizes aid program a state whether NYU to an agency. to be entrusted likely most of action ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 are more such decisions is because of technical expertise plication In likely to entail policymaking. economic inter- balance competing scientific and better suited to ests. \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 32 28-OCT-14 9:36 ments. of as policymaking expertise. generally be conceived Congress may intend that expert agencies interpret a statute be- interpret a expert agencies may intend that Congress national more consistent results in a interpretation cause expert law. administrative from experience in a particular ing expertise stems over time. knowledge developed context and institutional 35568-nys_69-2 Sheet No. 93 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 93 35568-nys_69-2 35568-nys_69-2 Sheet No. 94 Side A 10/28/2014 12:36:12 expertise, as expertise, policymaking note 38 (“[F]ederal statutory pro- Agency actors focusing solely Agency actors focusing 150 supra note 134 (listing immigration as one of several note 134 (listing immigration as one of 147 supra regularly applies” that “does not require scientific or regularly applies” that “does not require Chevron expertise. , Merrill & Hickman, 2. Expertise in the Statute Specialization: , Hickman, , Matter of Silva-Trevino, 24 I. & N. Dec. 687, 689 n.1 (AG 2008) , Matter of Silva-Trevino, 24 I. & N. Dec. Federal statutes are often very complicated, and are often very complicated, Federal statutes at 862 (“There is the further problem that these purposes are Chem. Mfrs. Ass’n v. NRDC, 470 U.S. 116, 125 (1985) (“Th[e] view of Chem. Mfrs. Ass’n v. NRDC, 470 U.S. 116, 148 See, e.g. See, e.g. See See, e.g. See id. technical Because judges may misunderstand not only the may misunderstand not Because judges immigration is a subject matter that does not inherently im- not inherently matter that does is a subject immigration Courts have identified expertise in the statute as a trigger for expertise in the statute as Courts have identified 149 146 146. 147. 148. 149. 150. the BIA or Attorney General must weigh competing interests in effi- interests competing must weigh General or Attorney the BIA of immigration equitable application and cient administration law, (“[T]he definition in this opinion advances important aspects of immigration pol- (“[T]he definition in this opinion advances notice of which criminal convictions icy because it will provide aliens with clearer and will help ensure, both on its will trigger certain immigration consequences judicial deference, uniform application own terms and as a consequence of proper to similar cases no matter where they of the Act’s moral turpitude provisions arise.”). 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE implicates law often immigration though 535 deference. \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 33 28-OCT-14 9:36 on a complex statute have far more experience with that statute on a complex statute have far statutory issue, and also have than a court adjudicating a discrete consequences of interpreting firsthand knowledge of the potential judges may not be as well positioned as an entrusted agency to eval- as well positioned as an entrusted judges may not be terms of the stat- of interpreting the uate the full ramifications ute. plicate ramifications of a particular interpretation of a complex statute but a particular interpretation of a complex ramifications of statute, defer- of particular terms in a complex also the meaning necessary to en- agency personnel is in some cases ence to full-time coherence. sure a complex statute’s “areas of law where other technical training”). the agency charged with administering the statute is entitled to considerable defer- the agency charged with administering the that it is the only permissible construction ence; and to sustain it, we need not find only that [the agency’s] understanding that [the agency] might have adopted but rational one to preclude a court from of this very ‘complex statute’ is a sufficiently agency].”). substituting its judgment for that of [the grams have become so complex that it is beyond the capacity of most federal grams have become so complex that of the narrowly framed interpretational judges to understand the full ramifications questions that come before them.”). often locked in a Byzantine web of interlocking provisions that can be fully com- to prehended only by a full-time legal expert. A strong practice of deference agency interpretations may thus be necessary if we are to persist in seeking to make law internally coherent.”). 35568-nys_69-2 Sheet No. 94 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 94 35568-nys_69-2 35568-nys_69-2 Sheet No. 94 Side B 10/28/2014 12:36:12 In one 153 In Defense of Deference: Judicial 329, 332 (1979) (“This expertise is as- . As Stephen Legomsky explains in explains Legomsky As Stephen EV 151 . L. R DMIN A note 35, at 440. , 31 supra , Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981) (speculating 152 case, the Court connected the broad administrative dis- case, the Court connected the broad See, e.g. Thus, expertise in the statute can lead not only to consistency, Thus, expertise in the statute can with technical subject Additionally, complex statutes dealing Chevron 153. 152. Legomsky, 151. David R. Woodward & Ronald M. Levin, The link between specialization and expertise has several com- has several and expertise between specialization The link be- can be chosen tribunals Members of specialized ponents. on expertise. Once experience and their pre-existing cause of the have observed, grows. As others expertise board, their gov- contacts with the their frequent both from growth results practical re- and from their exposure to the erning legislation the overall through immersion in sults of their decisions support staff If equipped with a specialized statutory scheme. al- resources, and if their specialization and other specialized professional to participate in specialized lows them the time devel- other forms of continuing professional associations and further. specialized knowledge will expand opment, then their consis- in turn, should aid them in achieving That expertise, alone reduce with the issues should tent outcomes. Familiarity law inadvertent deviations from established the incidence of own prior decisions and and practice. Familiarity with one’s is an additional avenue for the prior decisions of colleagues uniformity. sumed to result not only from the frequency of an agency’s contact with the stat- sumed to result not only from the frequency administrative operations that reveal ute, but also from its immersion in day-to-day statutory interpretation as opposed to the practical consequences of one another.”). that Congress had broadly delegated authority to the Secretary of Health and Human Services to administer the Social Security Act because of the Act’s complexity). Review of Agency Action but also to greater accuracy. ambiguity in order to give expert matter tend to contain greater the statute’s purpose. agencies the flexibility to achieve 536 way. a particular in the statute NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 34 28-OCT-14 9:36 the context of the BIA: context the pre- of Health and Human Services by cretion granted to the Secretary of that Act, speculating the Social Security Act to the complexity the complexity of what it had that “[p]erhaps appreciating the Secretary exceptionally broad wrought, Congress conferred on for applying certain sections of the authority to prescribe standards 35568-nys_69-2 Sheet No. 94 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 94 35568-nys_69-2 35568-nys_69-2 Sheet No. 95 Side A 10/28/2014 12:36:12 , IEGO defer- D Schweiker AN S This com- Chevron , 13 155 156 and an intricate and an 157 (quoting Friedman v. Berger, 547 F.2d 724, (quoting Friedman v. Berger, 547 F.2d The Board of Immigration Appeals: A Critical Ap- Id. The BIA achieves economies of scale The BIA achieves note 35, at 441 (“[T]he Immigration and Nationality note 35, at 441 (“[T]he Immigration and 29, 38 (1977) (“The expertise concentrated in the . 159 EV supra L. R Additionally, it may be the case that the very com- Additionally, it may 160 (“[The INA] is organizationally intricate. Passed in 1952 and (“[The INA] is organizationally intricate. The BIA is the interpretive body best positioned to body best positioned is the interpretive The BIA IEGO , Shi Liang Lin v. DOJ, 494 F.3d 296, 316 (2d Cir. 2007) (en banc) , Shi Liang Lin v. DOJ, 494 F.3d 296, 316 D 158 Maurice A. Roberts, Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) (characterizing Carachuri-Rosendo v. Holder, 130 S. Ct. United States v. Haggar Apparel Co., 526 U.S. 380, 394 (1999) (“The United States v. Haggar Apparel Co., 526 Legomsky, (citing Batterton v. Francis, 432 U.S. 416, 425 (1977)). In Francis, 432 U.S. 416, 425 (1977)). In (citing Batterton v. AN S See See id. Id. See, e.g. See See See The Supreme Court has also addressed this expertise-in- this addressed has also Court Supreme The 144, 145 (1976) (“The statutory provisions [of the INA] are highly techni- 144, 145 (1976) (“The statutory provisions . , 15 154 The INA is without a doubt a complex statute. a complex is without a doubt The INA The Exercise of Administrative Discretion Under the Immigration Laws The Exercise of Administrative Discretion Under 157. 158. 154. 159. 160. 155. 156. EV cal and exceedingly complex, so that even the officials charged with their enforce- cal and exceedingly complex, so that even admit inadmissible aliens, who ment sometimes make mistakes and erroneously the error is later discovered.”). have established roots here by the time pages and is supplemented by hundreds of Act now spans more than five hundred by the Departments of Homeland Secur- pages of administrative regulations issued as well as thousands of administrative ity, Justice, Labor, and State, among others, and judicial decisions.”). L. R 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE Act.” 537 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 35 28-OCT-14 9:36 amended countless times, the Act is a ‘hideous creature’ whose ‘excruciating tech- amended countless times, the Act is a ‘hideous intertwined.’ It is not unusual for one nical provisions . . . are often hopelessly located in distant reaches of the same provision to be qualified by other provisions statute.”). (Katzmann, J., concurring) (“When a governmental body with substantial experi- ence in interpreting a complex statutory scheme concludes that a statute is ambig- uous, that determination should give us pause.”). the-statute rationale in the tax and customs contexts. and customs in the tax rationale the-statute assimilate not only the text of the INA, but also the extensive record also the extensive of the INA, but not only the text assimilate a coherent and judicial opinions. Creating of precedential opinions writing body of judicial and administrative law out of this massive foresight to an- familiarity with the statute and the requires a deep construction de- such that the agency’s ticipate inconsistencies, serves special respect. specialized judicial in this statute where less through its immersion review cannot. the Court also observed that “[t]he Social Security Act is among the most intricate that “[t]he Social Security Act is among the Court also observed and “almost and described the Act as “[b]yzantine” ever drafted by Congress” unintelligible to the uninitiated.” praisal organization—the legisla- and a long numerous revisions result of tive history. plexity stems from the great length of the statute length of the from the great plexity stems 727 n.7 (2d Cir. 1976)). Trade, somewhat like the expertise of the expertise of the Court of International determinations in a specialized area of the Tax Court, guides it in making complex regulations and their operation in law; it is well positioned to evaluate customs if the preconditions for light of the statutory mandate to determine ence are present.”). cross-references”); Maurice A. Rob- provisions in the INA as a “maze of statutory erts, 35568-nys_69-2 Sheet No. 95 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 95 35568-nys_69-2 35568-nys_69-2 Sheet No. 95 Side B 10/28/2014 12:36:12 ., E- 163 R , 119 OGALES ET AL -N ROPOSALS FOR Second, as the , 430 F.3d 828 P AMJI 161 Wang v. Attorney Gen- R 1059, 1113 (2011) (“The AYA J L.J. UKE D DJUDICATION AND A see generally Benslimane v. Gonzales SYLUM Executive Deference in U.S. Refugee Law: Interna- Executive Deference in U.S. Refugee Law: A Chevron, 60 note 161, at 1112 (observing that “structural reforms note 161, at 1112 (observing that “structural As courts hear more immigration cases, As courts hear 162 Immigration Law—Administrative Adjudication Third and Sev- supra ISPARITIES IN : D presenting results of an empirical study of inconsistency in im- presenting results of an empirical study . 2596 (2006) (observing in 2006 that “appeals of immigration deci- Bassina Farbenblum, EV OULETTE FORM See R However, this advantage that the BIA has in interpreting the in interpreting that the BIA has this advantage However, . L. R 289 (2009) ( 162. Farbenblum, 163. Recent Cases, 161. , 423 F.3d 260 (3d Cir. 2005), and ARV EFUGEE immigration courts and the BIA regularly fail to achieve uniformity in their con- immigration courts and the BIA regularly struction of INA provisions over time.”); R migration adjudication). have resulted in an explosion in the number of immigration cases that the courts have resulted in an explosion in the number “[g]iven these changes, it is not clear that of appeals consider each year” and that expertise than federal courts” in interpret- that the BIA retains sufficiently greater ing provisions in the INA). enth Circuits Condemn Pattern of Error in Immigration Courts— eral sions have swollen in the past five years from three percent to eighteen percent of sions have swollen in the past five years from three percent to eighteen percent all federal appeals”). H judges are increasingly better positioned to understand the ramifi- better positioned to understand judges are increasingly the BIA’s speciali- interpretations of the INA. If cations of particular over judicial law confers no advantages zation in immigration to the agency. have less reason to defer interpretation, courts it the ideal place for the formulation of Board, with its relatively small staff, makes highly complex field of law. In terms of what is now the definitive decision in this decisions are a bargain. More opinions actual cost to the Government, good Board and with an even more inadequate staff; can be ground out, of course, in less time not only unfair to the parties involved, but the resulting dilution in quality, while run. Economies of this sort can only result would also cost much more in the long The slack would have to be taken in passing the buck to others with less expertise. the already overburdened courts will have up elsewhere in the Department; if not, quality of Board decisions can only cause to confront the task, for dilution in the greater recourse to the courts for redress.”). 538 defer courts that intent Congress’s indicates statute of a plexity NYUthat statute. of construction to an agency’s readily more ANNUAL SURVEY OF AMERICAN LAW are good and there every interpretation, implicated in INA is not [Vol. 69:503 defer- justifies the INA alone insufficiently that expertise in reasons in prac- system immigration adjudication BIA. First, the ence to the in indicating that expertise results, generates inconsistent tice often producing desirable uniformity. the statute is not \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 36 28-OCT-14 9:36 number of immigration cases heard before the courts of appeals cases heard before the number of immigration of the BIA in the the comparative expertise has rapidly increased, INA has decreased. tionalist Paths Through and Beyond 35568-nys_69-2 Sheet No. 95 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 95 35568-nys_69-2 35568-nys_69-2 Sheet No. 96 Side A 10/28/2014 12:36:12 168 Be- 164 highlights Courts have 167 praises agencies. 541, 588 (2007) (“Further- . EV Chevron ’s Domain: Agency Interpretations of Crandon v. United States U. L. R ”). note 151, at 334–35(“[C]ourts are much Chevron EATTLE supra at § 1003.1(d)(3)(ii) (“The Board may review S Questions of “pure . . . statutory inter- of “pure . . . Questions de novo. 8 U.S.C. § (2012) (providing that 1101(a)(43)(S) Beyond Although Congress’s desire that the Attor- Although Congress’s 165 id. with s, 30 170 3. Interpretation in Statutory Expertise which contain provisions bearing great similarity to bearing great similarity which contain provisions remain the “province of the courts.” remain the “province 169 Melissa M. Berry, 8 C.F.R. § “shall provide 1003.1(d)(1) (2009) (stating that the BIA Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the Marbury v. Madison, 5 U.S. 137, 177 (1803) Woodward & Levin, 166 See See See See 18 U.S.C. § (2012) (providing that whoever “obstructs, or im- 1503(a) Courts also possess a particular expertise in interpreting crimi- a particular expertise in interpreting Courts also possess The BIA’s work primarily involves statutory construction. involves statutory work primarily The BIA’s 169.in Justice Scalia’s concurring opinion 170. In one example, the INA borrows the phrase “obstruction of justice.” 165. 164. 166. 446 (1987). INS v. Cardoza-Fonseca, 480 U.S. 421, 167. 168. more, courts have important institutional advantages over agencies when constru- more, courts have important institutional judges enjoy life tenure and salary ing statutes. For instance, because federal from politics and are thus generally guarantees, they are substantially insulated behavior that agency officials may able to avoid the pitfalls of self-interested exhibit.”). the fact that “a criminal statute . . . is not administered by any agency but by the the fact that “a criminal statute . . . is not courts.” 494 U.S. 152, 177 (1990). Compare of pedes, or endeavors to influence, obstruct, or impede, the due administration justice, shall be punished”), aggravated felonies include “an offense relating to obstruction of justice, perjury questions of law, discretion, and judgment and all other issues in appeals from questions of law, discretion, and judgment decisions of immigration judges clear and uniform guidance to the Service, the immigration judges, and the gen- clear and uniform guidance to the Service, and administration of the [INA] and its eral public on the proper interpretation implementing regulations”); less willing to defer to an agency interpretation when the meaning of the statute less willing to defer to an agency interpretation in which courts have the greater de- must be determined by reference to subjects statute must be construed by reference to gree of competence, such as when the judicial precedents.”). the common law, the Constitution, or prior province and duty of the judicial department to say what the law is.”). province and duty of the judicial department nal statutes, provisions directly INA. The INA borrows many provisions in the exclusively inter- criminal code, which courts have from the federal years. preted for many 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE 539 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 37 28-OCT-14 9:36 ney General and BIA interpret these provisions anew in the ney General and BIA interpret pretation” broad experience reading statutes in many contexts, and are best reading statutes in many contexts, broad experience broader body of a particular statute into the positioned to integrate and presumably federal judges enjoy life tenure law. Additionally, political bias for which do not carry the yond the argument that the BIA’s specialization in the INA gives in the the BIA’s specialization argument that yond the and sur- the statute in assimilating comparative advantage them a case to be there is little a coherent whole, case law into rounding interpreta- in statutory superior expertise the BIA has a made that federal courts. tion than Statutory Procedural Provision 35568-nys_69-2 Sheet No. 96 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 96 35568-nys_69-2 35568-nys_69-2 Sheet No. 96 Side B 10/28/2014 12:36:12 , the but 175 Matter of Immigration see also Part II.B.2. supra In re Rodriguez-Rodriguez Immigration Law in the Supreme Court: The 113, 141–42[hereinafter (2002) . EGIS and thus there is little reason to presume and thus there J. L In one example, in In one example, 173 , 174 ] (“It is unclear, though, exactly what the Board did in ] (“It is unclear, though, exactly what , 28 Bracamontes v. Holder, 675 F.3d 380, 386 (4th Cir. 2012) This type of interpretation bears a closer resem- This type of interpretation Cf. Chevron , Michael G. Heyman, , Jean-Louis v. Att’y Gen., 582 F.3d 462, 477 (3d Cir. 2009) (stat- , Jean-Louis v. Att’y Gen., 582 F.3d 462, , Matter of A-M-, 25 I. & N. Dec. 66, 72–74 (BIA 2009) (scrutiniz- 172 would best be served by deeming the lawful permanent resident would best be served by deeming the 171 See, e.g. See, e.g. See, e.g. . Certainly, unlike the EPA, it did not fill in substance to the open texture of . Certainly, unlike the EPA, it did not fill When BIA interpretation takes the same form that judicial stat- form that judicial takes the same interpretation When BIA 174. that the BIA is better situated For example, there is no reason to suppose 175. 22 I. & N. Dec. 991 (BIA 1999). 171. 172. 173. Matter of Lok, 18 I. & N. Dec. 101, 105 (BIA 1981) (“[W]e conclude that Matter of Lok, 18 I. & N. Dec. 101, 105 Law in the Supreme Court Aguirre a case. It lent no new interpretation to a statute . . . . [T]he Board simply decided the Convention.”); the Refugee Act and did not even mention Velazquez-Herrera, 24 I. & N. Dec. 503, 508–09Velazquez-Herrera, 24 I. & N. Dec. 503, (BIA 2008) (characterizing the the ‘federal policies’”).BIA’s gap-filling as “seeking to identify court, but the BIA’s process of poli- to discern congressional intent than a federal relies on BIA determinations of con- cymaking through interpretation nonetheless gressional intent. (denying deference to a congressional intent-based BIA interpretation of 8 U.S.C. § because “[r]egardless of the BIA’s speculation concerning con- 1101(a)(13)(A) gressional intent, however, the statute plainly says what is says”). blance to the analysis undertaken by judges than the cross- analysis undertaken by judges blance to the EPA policymaking that characterized the disciplinary balancing challenged in At the outset, the BIA’s analysis appears no different from judicial BIA’s analysis appears no different At the outset, the a witness, for which the term of imprison- or subornation of perjury, or bribery of discussion, see ment is at least one year”). For further 540might one deference, justify judicial could context immigration NYU BIA and General the Attorney desired that Congress presume also ANNUAL SURVEY OF of these interpretations judicial the already developed to adopt AMERICAN LAWprovisions. [Vol. 69:503 the BIA is to think that there is less reason takes, utory construction judicial The BIA applies policy judgments. expertise-based making relies on interpretation, looks to and frequently tools of statutory and congres- and examines legislative history judicial precedent, sional intent. of a minor.” to the phrase “sexual abuse the BIA gave meaning \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 38 28-OCT-14 9:36 that the BIA has any particular advantage over courts in making any particular advantage over that the BIA has such interpretations. ing that Congress did not intend for the Attorney General to decide the meaning ing that Congress did not intend for the the phrase “is a term of art, predat- of “crime involving moral turpitude” because ing even the immigration statute itself”). ing the legislative history of the Violence Against Women Act in order to find that ing the legislative history of the Violence access to immigration relief for groups one of the act’s purposes was “to improve who were not previously eligible”); of battered immigrant spouses and children cf. policies of the Act of a final administrative order of deporta- status of an alien to end with the entry tion.”) (emphasis added). Flagging Spirit of the Law 35568-nys_69-2 Sheet No. 96 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 96 35568-nys_69-2 35568-nys_69-2 Sheet No. 97 Side A 10/28/2014 12:36:12 181 178 But 177 (“We are Id. The BIA then The BIA 176 Courts of appeals 179 ). —yet why the BIA was bet- it remains unclear In re Rodriguez-Rodriguez 4. Political Accountability 180 , the Court emphasized the importance of executive , the Court emphasized the importance , Restrepo v. Att’y Gen., 617 F.3d 787 (3d Cir. 2010) (deferring to , Restrepo v. Att’y Gen., 617 F.3d 787 (3d Chevron at 993. at 996. 18 U.S.C. § ‘sexual abuse’ 3509(a)(8) provides that “the term Id. Id. Id. See, e.g. Chevron Id. In 176. 177. 178. 179. The BIA imported 18 U.S.C. § “sexual abuse of a 3509(a)(8) to define 180. 181. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 865 minor.” Agency interpretations are more politically accountable than judi- Agency interpretations are more political branches supervise agen- cial interpretations because the by Congress and through direct cies through legislation passed inducement, enticement, or coercion includes the employment, use, persuasion, person to engage in, sexually explicit of a child to engage in, or assist another or other form of sexual exploita- conduct or the rape, molestation, prostitution, The BIA did not definitively define “sex- tion of children, or incest with children.” but invoked it as a guide. ual abuse of a minor” through section 3509, standard or definition but invoke it as a not adopting this statute as a definitive we would consider to be sexual abuse of a guide in identifying the types of crimes minor.”). the BIA interpretation in Ex- (1984) (“While agencies are not directly accountable to the people, the Chief ecutive is, and it is entirely appropriate for this political branch of the Government to make . . . policy choices . . . .”). The BIA then defined the ambiguous provision by reference to a the ambiguous provision The BIA then defined in another federal statute. definition contained as a rationale for deference. agency political accountability 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE prin- to by looking analysis [its] BIA “begin[s] as the interpretation, of that “interpretation asserts and construction” of statutory ciples 541 itself, terms of the statute with the language begins the statutory of a plain expression face, constitute terms, on their and if those effect.” must be given intent, they congressional \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 39 28-OCT-14 9:36 ter positioned than a federal court to make this interpretation a federal court to make ter positioned than tools of the BIA merely applied the “traditional considering that statutory construction.” indicated that it has the authority to fill gaps based on reasonable gaps based on authority to fill that it has the indicated we then plainly expressed, intent is not Congress’s policy “[w]here the language and a reasonable interpretation of need to determine Congress.” either implicitly or explicitly, by fill any gap left, concludes by em- toward policymaking, the BIA despite this turn intent is the paramount index of congressional phasizing that “the as a whole.” the words used in the statute taken plain meaning of have upheld this interpretation as reasonable and granted defer- interpretation as reasonable and have upheld this ence under 35568-nys_69-2 Sheet No. 97 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 97 35568-nys_69-2 35568-nys_69-2 Sheet No. 97 Side B 10/28/2014 12:36:12 See, Defer- 183 are difficult 185 Krzalic v. Republic Title Thus, though not exper- Thus, though see also 184 The Supreme Court has ex- The Supreme 186 Whereas agencies are well posi- are well agencies Whereas arguing that the BIA is more polit- arguing that the 182 187 ’s shift of legislative power to the bureaucracy. note 133, at 378 (“While federal courts primarily note 133, at 378 (“While federal courts supra Chevron , the Court favored the EPA’s interpretation , the Court favored , 467 U.S. at 866 (“The responsibilities for assessing the , 467 U.S. at 866 (“The responsibilities Chevron note 115, at 2101–02. , Negusie v. Holder, 555 U.S. 511, 546 n.2 (2009) (Thomas, J., , Negusie v. Holder, 555 U.S. 511, 546 , Chevron , Hudson, , INS v. Abudu, 485 U.S. 94, 110 (1988) (“INS officials must exer- , Babbitt v. Sweet Home Chapter of Ctys. for a Great Oregon, 515 , Babbitt v. Sweet Home Chapter of Ctys. supra See, e.g. See, e.g. See, e.g. See, e.g. See, e.g. itself an interpretation of the statutes to which it applies or that the exer- itself an interpretation of the statutes to The precise contours of political accountability The precise contours 182. 184. 185. political accountability through a Commentators have conceived of 186. 187. 183. , Lipton, 542Executive. by the supervision NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 40 28-OCT-14 9:36 tioned to make policy, federal courts do not make policy, and lack and make policy, do not courts federal policy, to make tioned common law. to make policy-like courts’ power even state institutional competence is an se, political accountability tise per appropri- an agency is the whether to determining that is relevant a statute. ate interpreter of plained that in the immigration context, the deference due to the immigration context, the deference plained that in the political na- appropriate because of the sensitive BIA is particularly decisions, ture of immigration wisdom of such policy choices and resolving the struggle between competing views wisdom of such policy choices and resolving . . . .”); of the public interest are not judicial ones (Easterbrook, J., concurring) (“Small-d Co., 314 F.3d 875, 878 (7th Cir. 2002) democrats might question ence allows agencies to answer policy questions, which agencies are which agencies policy questions, agencies to answer ence allows than courts. to answer more competent to define. In However, in was accountable to the Executive. because the agency to prefer congres- context there are good reasons the immigration executive policy. sional policy to But realists, while acknowledging the point and also that it is a fiction to suppose But realists, while acknowledging the point Chevron decide issues based on statute and precedent, state courts often rely exclusively on decide issues based on statute and precedent, this perspective, state courts have a far their own policy perceptions. Viewed from than federal courts with respect to engag- higher level of institutional competency ing in common law making.”). and explaining that “[t]he proper inter- U.S. 687, 708 (1995) (granting deference a complex policy choice”). pretation of a term such as ‘harm’ involves flows from the elected represent- “transmission belt model in which accountability atives to those appointed—and able to be fired—byas them” and more broadly political forces at work in society.” “responsibility to balance the competing e.g. that the object of the INA is to dissenting) (“It also is important to acknowledge to codify Congress’ policy decisions pertaining to the entry of aliens and their right remain in the United States—decisions exclusively to Con- that are entrusted gress.”) (internal quotations omitted). cise especially sensitive political functions that implicate questions of foreign rela- cise of power by appointed officials is democratic merely because it is authorized cise of power by appointed officials is democratic Court’s recognition that the inter- by elected officials, will applaud the Supreme exercise in policy formulation rather than pretation of an ambiguous statute is an in reading.”). 35568-nys_69-2 Sheet No. 97 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 97 35568-nys_69-2 35568-nys_69-2 Sheet No. 98 Side A 10/28/2014 12:36:12 Whether a 190 Chae Chan Ping v. United see also However, this logic overlooks the overlooks logic this However, 188 , 555 U.S. at 546 n.2 (Thomas, J., dissenting) (“It . . . is , 555 U.S. at 546 n.2 (Thomas, J., dissenting) Negusie , , Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003) (“While , Am. Ins. Ass’n v. Garamendi, 539 U.S. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, Chevron U.S.A., Inc. v. Natural Res. Def. In another example, the political branches are uniquely the political branches are In another example, The Court has often exclusively reserved foreign poli- The Court has often exclusively Additionally, the establishment of criminal punishments is punishments of criminal the establishment Additionally, See, e.g. See See, e.g. 191 192 189 190.348 (1971) (“[B]ecause of the seri- United States v. Bass, 404 U.S. 336, 191. Cir. 2004). Mei v. Ashcroft, 393 F.3d 737, 739 (7th 192. 188. 189. important to acknowledge that the object of the INA is to codify Congress’ policy important to acknowledge that the object and their right to remain in the United decisions pertaining to the entry of aliens States—decisions are entrusted exclusively to Congress.”) (internal quotations that best way for courts to realize congres- omitted). Justice Thomas argues that the interpretation based on plain language. sional intent is through judicial statutory Id. criminal punishment usually represents ousness of criminal penalties, and because legislatures and not courts should the moral condemnation of the community, define criminal activity.”). Congress holds express authority to regulate public and private dealings with other Congress holds express authority to regulate nations in its war and foreign commerce powers, in foreign affairs the President has a degree of independent authority to act.”); the States, 130 U.S. 581, 609 (1889) (“If there be any just ground of complaint on part of China, it must be made to the political department of our government, which is alone competent to act upon the subject.”). tions, and therefore the reasons for giving deference to agency decisions on tions, and therefore the reasons for in other administrative contexts apply petitions for reopening or reconsideration with even greater force in the INS context.”). 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE courts. than accountable ically 543 866 (1984) (explaining that “federal judges—who have no constituency—have a made by those who do,” namely executive duty to respect legitimate policy choices agencies). \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 41 28-OCT-14 9:36 distinction between executive and legislative decisions. Although decisions. legislative and executive between distinction it is than the courts, accountable may be more politically the BIA immigra- Congress. Some than more accountable not necessarily associ- affecting rights those decisions particularly tion decisions, should only Congress of the sort that citizenship, are ated with make. policy and the re- decisions implicating foreign competent to make entities in the States to other sovereign lations of the United world. foreign affairs for the political cymaking and decisions implicating viewed as uniquely within the province of Congress. viewed as uniquely particular issue is of the sort that Congress should decide directly or of the sort that Congress should particular issue is a question of is competent to decide is ultimately one that the BIA “[t]he resolution As one court has observed, congressional intent. turpitude] de- which crimes are crimes of moral of [the issue of moral significance the character, the gravity, the pends on whether it thought about is a topic that Congress, had of particular crimes rather than the have wanted the Board to decide the matter, would courts.” 35568-nys_69-2 Sheet No. 98 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 98 35568-nys_69-2 35568-nys_69-2 Sheet No. 98 Side B 10/28/2014 12:36:12 , 85 note 160, at 44 (Roberts, a former supra Adjudication by Fiat: The Need for Procedural Roberts, see also Laura S. Trice, 8 C.F.R. § (2009) (limiting the BIA’s jurisdic- 1003.1(d)(1) See See but nonetheless maintain that “[t]he Board shall re- maintain that “[t]he Board shall but nonetheless This practice stems from a concern that judicial proce- that judicial from a concern stems practice This 1766, 1768 (2010) (arguing that “there should be an entitlement to 1766, 1768 (2010) (arguing that “there Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (Courts should “listen U.S. 678, 700 (2001) (Courts should Zadvydas v. Davis, 533 . 195 194 193 EV However, the Supreme Court has found that the BIA has a Court has found that the However, the Supreme See 196 Even in cases where a BIA accountable to the Executive is pref- the Executive is accountable to cases where a BIA Even in 193. 194.S.S. Corp., 333 U.S. 103, 111 (1948) Chicago & S. Air Lines v. Waterman 195. 8 C.F.R. § 1003.1(d)(1)(ii) (2009). 196. 8 C.F.R. § to mete out inde- 1003.1(h)(1)(i) (2009). The BIA’s ability briefing and other procedural protections when the Attorney General certifies a briefing and other procedural protections refer to the Attorney General cases that matter for review”). The BIA must also Board believes should be referred to the “[t]he Chairman or a majority of the that the Secretary of Homeland Security Attorney General for review” and cases §refers to the Attorney General. 8 C.F.R. (2009). The BIA’s sub- 1003.1(h)(1)(ii) largely from the fact that the Board is ordination to the Attorney General stems the borne not of congressional statute but of longstanding regulation written by Attorney General. tion to “those administrative adjudications . . . that the Attorney General may by tion to “those administrative adjudications . . . that the Attorney General may regulation assign to it”); Safeguards in Attorney General Review of Board of Immigration Appeals Decisions Safeguards in Attorney General Review of BIA member, argues for administrative independence from the Attorney General: with care when the Government’s foreign policy judgments . . . are at issue, and . . . foreign policy judgments with care when the Government’s when its judgments rest upon foreign grant the Government appropriate leeway v. Franchise Tax Bd., 463 U.S. 159, 196 policy expertise.”); Container Corp. of Am. of the United States” is “much more (1983) (explaining that “the foreign policy Congress than of this Court”). the province of the Executive Branch and as to foreign policy is political, not judi- (“[T]he very nature of executive decisions by our Constitution to the political depart- cial. Such decisions are wholly confided Legislative. They are delicate, complex, ments of the government, Executive and They are and should be undertaken only and involve large elements of prophecy. whose welfare they advance or imperil. by those directly responsible to the people Judiciary has neither aptitude, facilities They are decisions of a kind for which the held to belong in the domain of political nor responsibility and have long been or inquiry.”). power not subject to judicial intrusion the Attorney General has the power to pendent judgment is hampered because and issue a final ruling without party enti- certify BIA opinions for his own review tlement to briefing. N.Y.U. L. R 544branches. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 accountable. De- that the BIA is in fact directly erable, it is unclear by the Attorney regulations promulgated partment of Justice judgment and the BIA to exercise “independent General require discretion” \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 42 28-OCT-14 9:36 fer to the Attorney General for review of its decisions in all cases General for review of its decisions fer to the Attorney Board to refer to Attorney General directs the that . . . [t]he him.” Attorney General, statutes independently of the duty to interpret dures are inadequate to accommodate the chaotic state of interna- state the chaotic to accommodate are inadequate dures politically a belief that is justified by and tional relations, people responsible to the “those directly branches, accountable to make are best suited or imperil,” they advance whose welfare decisions. 35568-nys_69-2 Sheet No. 98 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 98 35568-nys_69-2 35568-nys_69-2 Sheet No. 99 Side A 10/28/2014 12:36:12 St. Cyr Aguirre- Accardi 271, 284 Tasked 201 . L.J. MMIGR . I EO Behind the Scenes of G ´ e about politics to be- e about politics , 16 79, 103 (2007) (“[U]nlike courts . EV the Court established the rule Court established the 198 , . L. R DMIN A Margaret H. Taylor, Accardi v. Shaughnessy, 347 U.S. 260, 266–67 Accardi v. Shaughnessy, 347 U.S. 260, Yet, Justice Jackson’s dissent in Jackson’s dissent Yet, Justice , 59 199 Administrative Agencies Are Just Like Legislatures and Administrative Agencies Are Just Like Legislatures ex rel. See also Jackson goes on to analyze congressional in- Jackson goes on Because the BIA is required to make judgments Because the BIA and the Attorney General has indeed super- and the Attorney General has 200 202 203 , Matter of Silva-Trevino, 24 I. & N. Dec. 687, 687 (AG 2008) (“On at 260. Accardi v. Shaughnessy Accardi suggesting that the BIA’s policy does not reflect politi- suggesting that the BIA’s policy United States at 260. at 269–70J. dissenting). (Jackson, at 270. : Making Policy in the Midst of Litigation 204 In See, e.g. See Id. See id. Id. Id. 197 emphasizes that the BIA is a creature of the Attorney general, who “re- emphasizes that the BIA is a creature 203.fact, the majority opinion in Perhaps in recognition of this 204. 197. 198. 199. 200. 201. 202. Alan B. Morrison, Zadvydas whose only function is to adjudicate, agencies have rulemaking and, most prob- whose only function is to adjudicate, agencies functions that do not sit easily with the lematically in this context, law enforcement role as a neutral adjudicator.”). Aguirre 526 U.S. 415, 425 (1999). tain[s] ultimate authority.” INS v. Aguirre-Aguirre, July 10, 2007, pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2007), Attorney General its Gonzales directed the Board of Immigration Appeals to refer to him for review decision in this matter.”). and seded the BIA’s judgments with his or her own precedential seded the BIA’s judgments with opinions, standing. Its existence as a quasi-judicial “It is time to give the Board statutory should be recognized by Congress.”). tribunal within the Department of Justice 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE the over power supreme General’s the Attorney of regardless Board. 545 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 43 28-OCT-14 9:36 also noted the BIA’s utter lack of independence from the Attorney from the lack of independence the BIA’s utter also noted indepen- body nor an “neither a judicial deeming the BIA General, General as merely a body “created by the Attorney dent agency” but part of his office.” independently of the Attorney General, it is likely that in at least the Attorney General, it is likely independently of established by the BIA may not some cases the immigration policy accountable judgment of the At- represent the assumedly politically torney General, tent, asserting that “[i]t overtaxes our naivet tent, asserting that lieve Congress would entrust [discretionary power to remove would entrust [discretionary lieve Congress of Congress and board which is not the creature noncitizens] to a are not subject to Senate confirmation.” whose members (1954) (holding that the Attorney General must follow his own regulation by al- (1954) (holding that the Attorney General judgment, even when he has the discre- lowing the BIA to exercise independent tion to overturn that judgment). Courts—Except Not When They’re that administrators must follow their own regulations, holding that regulations, holding follow their own must that administrators to make the BIA’s ability compromise General cannot the Attorney judgments. independent with these competing mandates of independence and subordina- mandates of independence with these competing as either a poli- not well positioned to function tion, the BIA is adjudicator of of judicial deference or an impartial cymaker worthy questions of law. 35568-nys_69-2 Sheet No. 99 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 99 35568-nys_69-2 35568-nys_69-2 Sheet No. 99 Side B 10/28/2014 12:36:12 note Most 207 supra Taylor, See On the other hand, the fact hand, the other On 205 note 161, at 1105 (“Although some decisions made note 161, at 1105 (“Although some decisions ’s domain more broadly. In the context of agency ’s domain more broadly. In the context supra Chevron at 288 (“To critics, Attorney General review of BIA decisions at 288 (“To critics, Attorney General review 206 Negusie v. Holder, 555 U.S. 511, 531 (2009) (Stevens, J., concurring) Negusie v. Holder, 555 U.S. 511, 531 (2009) But see id. See And even in the foreign affairs context, where the agency foreign affairs context, where And even in the As a result of this conflicted position, the BIA functions largely position, the of this conflicted As a result 208 206. 207. 205. sprawls responsibility for immigration administration Furthermore, 208. Farbenblum, 203, at 293–94to has a unit dedicated exclusively (“[T]he [DOJ’s] Civil Division specialization that is litigation, reflecting a degree of conducting immigration of Immigration Litigation (“OIL”) is somewhat unusual within DOJ. The Office litigation consequences of policy initia- regularly consulted for its opinion on the OIL reviews proposed immigration regu- tives. At the behest of OLP, for example, to comment on pending legislation. And lations. On occasion OIL may be asked convened to address a particular issue OIL attorneys participate in working groups in the early 1990’s, even as INS’s or draft a regulation. OIL’s staffing doubled stagnant—abudget for legal programs remained relatively fact that has enhanced to other components of the immi- OIL’s reputation as an agency that is responsive gration bureaucracy.”). and (especially when review is at the be- violates the independence of the Board, of function between the immigration hest of the INS) breaches the separation at the Executive Office for Immigration enforcers at INS and the adjudicators Review.”). (2002) (characterizing referral of decision to the Attorney General as a power referral of decision to the Attorney (2002) (characterizing “rarely exercised”). within the Department of Justice. across multiple agencies 546policy. executive accountable cally NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 to enact policy. poorly suited court, a forum as a specialized \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 44 28-OCT-14 9:36 receives the greatest deference, the BIA rarely makes judgments de- deference, the BIA rarely makes receives the greatest that the Attorney General can and does review the BIA indicates the does review and can General the Attorney that of the ultimate authority is cabined by the power of the BIA that the branches—andpolitical of sufficient degree this may be a accountability. (“In cases involving agency adjudication, we have sometimes described the court’s (“In cases involving agency adjudication, construction and the agency’s role as role as deciding pure questions of statutory is peculiar to the adjudicatory context, the applying law to fact. While this phrasing principle applies to BIA decisions rely on statutory interpretation rather than a balanc- on statutory interpretation rather BIA decisions rely by executive cross-disciplinary interests informed ing of competing will. rulemaking, for instance, we might distinguish between pure questions of statutory rulemaking, for instance, we might distinguish central legal issues and interstitial interpretation and policymaking, or between questions.”). by immigration officials—such as tourist or business visa grants—may legitimately balancing of competing policy considera- implicate foreign relations concerns, the tions that prompted the Court’s deference in Chevron is fundamentally at odds with [Congress’s] acceptance of international law as a constraint on policy choices and a limit on government freedom to deal as it pleases with individuals possessing rights under international agreements like the Convention.”) (internal quotation marks omitted). 35568-nys_69-2 Sheet No. 99 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 99 35568-nys_69-2 35568-nys_69-2 Sheet No. 100 Side A 10/28/2014 12:36:12 See 210 as a National : Chevron note 173, at 142 should not be ap- supra , National Muffler applies to BIA interpre- applies to , we have cited both Chevron Chevron Chevron Yet, approximately a decade ear- note 38, at 834 (characterizing that “we have expressly recognized 211 supra Immigration Context Immigration in our review of Treasury Department regulations”). Prior to in our review of Treasury Department Immigration Law in the Supreme Court , framework based on a review of the relative expertise framework based Merrill & Hickman, Chevron C.of the the Unique Nature Deference and Variety in See, e.g. See 209 Chevron , the Court established a test for deference in , the Court established a test for deference and Despite the universal view that the universal view Despite that administrative law There is a tension between the notions 209. 210. 211. v. United States, 131 S. Ct. 704, Mayo Found. for Med. Educ. & Research at 712 (observing that “[s]ince deciding at 712 (observing that “[s]ince deciding In determining whether a particular regulation carries out the congressional mandate in a proper manner, we look to see whether the regulation harmo- nizes with the plain language of the statute, its origin, and its purpose. A regu- lation may have particular force if it is a substantially contemporaneous construction of the statute by those presumed to have been aware of congres- and that administrative law principles should be adapted to differ- and that administrative law principles the Court recently asserted in ent circumstances. On the one hand, Mayo Foundation v. United States 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE foreign executive with coordinated policy to implement signed policy. 547 a uniform approach to judicial re- the importance of maintaining view of administrative action.” \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 45 28-OCT-14 9:36 propriate at all in the immigration context. The immigration in the immigration context. propriate at all and harsh penal- foreign policy issues, unusual context implicates and political imposed in the criminal context, ties resembling those of political repre- from noncitizens’ lack process issues stemming context unique characteristics of the immigration sentation. These of clear indicia to the BIA in the absence counsel against deference strength- intent that courts defer. This backdrop of congressional for application limiting the INA provisions eligible ens the case for of the of courts and agencies. in all administrative contexts principles should apply similarly (“The members of the Board do not, and must not, play any role in the formula- (“The members of the Board do not, and law judges whose function is to de- tion of foreign policy. They are administrative . . is to decide cases on principle, not to cide immigration appeals. Their job . deciding cases.”). formulate foreign policy in the guise of tations, there are strong arguments that tations, there are “ubiquitous formula governing court-agency relations.”). “ubiquitous formula governing court-agency of maintaining a uniform approach to 713 (2011) (recognizing “the importance (quoting Dickinson v. Zurko, 527 U.S. judicial review of administrative action”) the Supreme Court’s deference jurispru- 150, 154 (1999)). Until January of 2011, statutory provisions was unclear dence for IRS regulations interpreting ambiguous in different cases without explanation. because the Court applied different tests id. Muffler Chevron 35568-nys_69-2 Sheet No. 100 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 100 35568-nys_69-2 35568-nys_69-2 Sheet No. 100 Side B 10/28/2014 12:36:12 Na- excep- was the ap- Within the Chevron 215 Mayo Foundation Chevron was whether interpreta- was whether note 151, at 331 (“There are also The facts in these two cases these two facts in The Mead 212 supra note 151, at 330 (“To a great extent, the 216 whereas the issue in whereas supra 213 Skepticism and Expertise: The Supreme Court and the Skepticism and Expertise: The Supreme Court , the Court asserted that , the Court asserted 1937, 1939 (2006) (“Despite this formal content neu- 1937, 1939 (2006) (“Despite this formal . provides a more deferential standard of review than , 131 S. Ct. at 712 (“In this case . . . the parties disagree , 131 S. Ct. at 712 (“In this case . . . the EV , 131 S. Ct. at 713. At least one court following this opinion Woodward & Levin, L. R But nonetheless, administrative context has, at least But nonetheless, Chevron , Melissa Hart, 214 the Court expressed that “[t]he Court’s choice has choice “[t]he Court’s that expressed Court the Woodward & Levin, ORDHAM See F It remains unclear what might justify this “ It remains unclear Mayo Found. See generally See Mayo Found. See, e.g. framework, administrative context is relevant as evidence of context is relevant as framework, administrative Mead Mayo Foundation 217 , 74 In 217. 216. 214. 215. 212. 218, 236 (2001). United States v. Mead Corp., 533 U.S. 213. issue of what type of agency action This inquiry could also be seen as the sional intent. If the regulation dates from a later period, the manner in which sional intent. If the regulation dates from considerations are the length of time it evolved merits inquiry. Other relevant placed on it, the consistency of the regulation has been in effect, the reliance the degree of scrutiny Congress has the Commissioner’s interpretation, and re-enactments of the statute. devoted to the regulation during subsequent numerous contexts in which an agency may act, ranging from a press release to numerous contexts in which an agency be overlooked that the agencies them- formal legislative rulemaking. It cannot and involvement with the legislation selves vary in their experience, composition, will inevitably affect (and should affect) under which they operate. All these factors process. This is not to suggest that the a court’s perception of the administrative be courts should abdicate their responsibility to interpret the law. But they must to allowed to recognize the unique role each administrative agency is intended play in formulating the law.”). has observed that trality, however, the Court’s attitude towards the EEOC’s interpretation of Title trality, however, the Court’s attitude towards substantive context matters quite a lot.”). VII, the ADA, and the ADEA reveals that degree of deference shown by a court is determined by the type of agency action degree of deference shown by a court is to delegated authority as opposed to a under review (e.g., rulemaking pursuant required to resolve the issue, the licensing proceeding), the technical knowledge of the agency result.”). agency’s experience, and even the reasonableness an ambiguous provision of the Internal over the proper framework for evaluating Revenue Code.”). propriate standard for reviewing treasury interpretations, observing for reviewing treasury interpretations, propriate standard are not inclined to of [some] justification, we that “[i]n the absence good for tax law to administrative review carve out an approach only.” Nat’l Muffler Dealers Ass’n, Inc. v. United States, 440 U.S. 472, 477 (1979). Nat’l Muffler Dealers Ass’n, Inc. v. United is at issue. EEOC 548in lier NYU to variety.” deference to tailor been ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 46 28-OCT-14 9:36 in some cases, historically mattered for deference. in some cases, historically can be distinguished: The issue in The can be distinguished: reviewed should be in the tax context interpretations was whether in other administra- than interpretations different standard under a tive contexts. tions promulgated with varying degrees of formality should receive of formality should varying degrees with tions promulgated level of deference, the same Chevron to delegate. congressional intent 35568-nys_69-2 Sheet No. 100 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 100 35568-nys_69-2 35568-nys_69-2 Sheet No. 101 Side A 10/28/2014 12:36:12 in 220 Chevron ’s two-step Beyond the Beyond the potential indicated that indicated 219 221 deference test—adeference Chevron test. ); Cottage Sav. Ass’n v. ); Cottage Sav. Ass’n Chevron test was less deferential than test was less deferential Atl. Mut. Ins. Co. v. C.I.R., 523 Atl. Mut. Ins. Co. v. deference to tax regula- deference to tax Chevron See Chevron National Muffler National National Muffler National deference is considered inappropriate”). As deference is considered inappropriate”). rather than ); United States v. Boyle, 469 U.S. 241, 246 n.4 ); United States v. Boyle, 469 U.S. 241, 246 National Muffler at 1594–95 the Court regularly applies (“Finally, , Kristin Hickman summarizes the norma- Hickman summarizes , Kristin Chevron note 134, at 1590–91 (“The notion of implicit con- note 134, at 1590–91 (“The notion of implicit con- Chevron See id. supra supra in footnote). Dickow v. United States, 654 F.3d 144, 149 (1st Cir. 2011) Dickow v. United States, National Muffler See at 1592 (“Some who support different deference standards in the at 1592 (“Some who support different Chevron . Nevertheless, because it is clear that Congress has delegated to the petitioners unsuccessfully argued that the Supreme that the argued unsuccessfully petitioners Hickman, Hickman, did. United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 219 Indians Baseball Co., 532 U.S. United States v. Cleveland —in three decades following the Mayo Foundation See See See See id. 218 ). deference in immigrant deportation cases. Having compared deportation Chevron Mayo 218. 219. 220. 221. (cert. denied) (observing that the (cert. denied) (observing Chevron the severity of penalties attached to tax violations, the severity of penalties tional Muffler 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE tax context, In the context. administrative a particular in tionalism” the 549 of the continued use Court’s \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 47 28-OCT-14 9:36 (1985) (citing Congress had acquiesced to the had acquiesced Congress (2001) (applying 560–61Comm’r., 499 U.S. 554, The Court also applied (1991) (same). U.S. 382, 387 (1998) (citing other cases during this time period, creating further confusion as to the appropri- time period, creating further confusion other cases during this for Treasury regulations. ate standard of review multi-factor test that differs significantly from significantly test that differs multi-factor analysis scope of scope of tive factors that counsel against tive factors that regime, tradition of a unique deference tions: The longstanding gressional delegation is admittedly a fictional one, as Congress most likely gives gressional delegation is admittedly a fictional in drafting statutes. If the tax com- little if any consideration to deference doctrine a unique tax deference tradition that re- munity generally perceives there to be those from other areas of administrative quires less deference in tax cases than in drafts the tax laws with that same tradi- law, then one could argue that Congress see for example Foti v. INS, 375 tion in mind.”). On congressional acquiescence, that Congress knew of this familiar U.S. 217, 223 (1963) (“It must be concluded when it enacted [the statute]. These administrative practice and had it in mind followed when the provision was en- usages and procedures, which were actually the context of the legislation.”). acted, must reasonably be regarded as composing one, as Congress most likely gives gressional delegation is admittedly a fictional in drafting statutes. If the tax com- little if any consideration to deference doctrine a unique tax deference tradition that re- munity generally perceives there to be those from other areas of administrative quires less deference in tax cases than in drafts the tax laws with that same tradi- law, then one could argue that Congress tion in mind.”). tax context suggest that the severity of the penalties imposed for taking a tax posi- tax context suggest that the severity of the makes civil tax enforcement compa- tion contrary to that of a Treasury regulation rable to criminal cases, where an argument against the relevance of penal severity in deference, Hickman cites an argument against the relevance of penal the immigration context. Chevron to criminal sanction, the Court employs the rule of lenity in evaluating the depor- tation provisions of immigration statutes, and occasionally that doctrine may trump executive branch the primary responsibility for administering the immigration 35568-nys_69-2 Sheet No. 101 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 101 35568-nys_69-2 35568-nys_69-2 Sheet No. 101 Side B 10/28/2014 12:36:12 And in other to find EEOC exceptionalism 225 to EEOC substantive In reviewing Equal 224 Skidmore , the Court was reviewing a Chevron Skidmore or Edelman Chevron and the fact that interpreting the that interpreting the fact and deference to interpretations rendered Gen. Dynamics Land Sys., Inc. v. Cline, 540 Gen. Dynamics Land Sys., Inc. v. Cline, 222 Chevron These mixed-up doctrinal explanations These mixed-up Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 84 Notwithstanding Hickman’s arguments, Hickman’s Notwithstanding , or even to defer, because the EEOC . . . is clearly , or even to defer, because the EEOC . See also 226 223 . deference to the EEOC’s interpretation of the ADA’s note 215, at 1938 (“[T]he Court has consistently refused note 215, at 1938 (“[T]he Court has consistently deference to the EEOC’s interpretation of the ADEA’s but see Chevron remains the last word on the Court’s distaste for the Court’s distaste the last word on remains supra Chevron Chevron Chevron , the Court explained that there was simply “no need to choose , the Court explained that there was simply and , EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 257–58, EEOC v. Arabian Am. Oil Co., 499 U.S. (1991) (ap- , Edelman v. Lynchburg Coll., 535 U.S. 106, 114 (2002) (“[T]here , Edelman v. Lynchburg Coll., 535 U.S. 106, at 1596 (“The primary function of Treasury tax personnel and the at 1596 (“The primary function of Treasury to EEOC substantive guideline and denying deference); Gen. Elec. to EEOC substantive guideline and denying Hart, at 1599 (“Interpreting the Internal Revenue Code, by contrast, rarely, at 1599 (“Interpreting the Internal Revenue Cline See id. Id. See See, e.g. See, e.g. Skidmore Id. Skidmore Although the Supreme Court rejected the Supreme Court Although 222. 223. 224. 225. 226. laws, the Court also extends 550 overreach, of Treasury danger NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 48 28-OCT-14 9:36 Internal Revenue Code may not require deference-worthy scientific deference-worthy not require may Code Revenue Internal expertise. or technical Mayo Foundation to exceptions through adjudication before the Board of Immigration Appeals.”). through adjudication before the Board Employment Opportunity Commission (EEOC) interpretations, Commission (EEOC) Employment Opportunity question. various approaches to the deference the Court has taken statutory in- Court has merely applied ordinary In some cases, the of ambiguous a resolution on the meaning terpretation to reach found deference irrelevant. text, and then expressly instances, the Court has applied instances, the Court IRS is to collect government revenues; and in light of this goal, Treasury and the IRS is to collect government revenues; and may adopt regulations and IRS may be biased toward revenue maximization in pursuit of that goal.”). rulings that test the boundaries of reasonableness procedural regulation promulgated under expressly delegated authority to make procedural regulation promulgated under such regulations in Title VII. if ever, requires cross-disciplinary scientific or technical expertise.”). if ever, requires cross-disciplinary scientific regulations are owed, preferring to to define what level of deference the agency’s to accept or reject agency analysis.”). retain a broad and undefined discretion here. We find the EEOC rule not is no need to resolve any question of deference we would adopt even if there were no only a reasonable one, but the position the statute from scratch. Because we so formal rule and we were interpreting occasion to defer and no point in asking clearly agree with the EEOC, there is no In what kind of deference, or how much.”). (2002) (granting in the tax context, the Court’s deference jurisprudence in the dis- jurisprudence deference context, the Court’s in the tax its deference ju- has historically deviated from crimination context administrative contexts. risprudence in other regulations inadequate. U.S. 581, 600 (2004) (finding deference irrelevant because “regular interpretive U.S. 581, 600 (2004) (finding deference even about purely textual ambiguity in the method leaves no serious question, not ADEA”). In between plying Co. v. Gilbert, 429 U.S. 125, 141 (1976) (applying interpretive guideline); Pub. Emps. Ret. Sys. of Ohio v. Betts, 492 U.S. 158, 171 interpretive guideline); Pub. Emps. Ret. Sys. of Ohio v. Betts, 492 U.S. 158, (1989) (denying “subterfuge” provision); wrong.” 35568-nys_69-2 Sheet No. 101 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 101 35568-nys_69-2 35568-nys_69-2 Sheet No. 102 Side A 10/28/2014 12:36:12 Chev- see also Second, exception- 228 as being equally at 1954–55; Id. Immigration Law in the Chevron , Chevron 229 for an interpretation of the for an interpretation See, e.g. First, the Court may deny may the Court First, does not create an administrative 227 Chevron Chevron EEOC v. Associated Dry Goods Corp., 449 U.S. 590, EEOC v. Associated See note 215, at 1938 (“To some extent, the Court may assume note 215, at 1938 (“To some extent, the note 173, at 143 (“ supra at 1954–55 one “source of perceived expertise in (contending that supra , at 1951 (“The Court’s reluctance to defer to the EEOC may stem at 1951 (“The Court’s reluctance to defer note 215, at 1938–49. The Court’s frequent unwillingness to defer in the dis- unwillingness to defer in The Court’s frequent Id. See id. 230 supra Although the Court has seemingly rejected Although the Court 227. Hart, 228. 229. 230. Commentators have also made the case against deference to EEOC interpretations of Title VII may not be appropriate due to interpretations of Title VII may not be deference to EEOC at 1954 (“Another possible explanation for the Court’s reluctance to defer to at 1954 (“Another possible explanation 600 n.17 (1981) (“Moreover, such a contemporaneous construction deserves spe- such a contemporaneous construction 600 n.17 (1981) (“Moreover, period of time.”). it has remained consistent over a long cial deference when ron and the fact that Title VII only the informality of EEOC interpretive guidelines time to time to issue . . . suitable proce- delegates to the EEOC the “authority from of this subchapter.” 42 U.S.C. §dural regulations to carry out the provisions 2000e- the Court’s approach to deference, see 12(a) (1964). For a fuller discussion of Hart, “direct threat” provision). Interestingly, the Court did grant the EEOC “special Interestingly, the Court did grant “direct threat” provision). one occasion before deference” on at least 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE normative Instead, reasoning. Court’s the encompass fully do not these decisions. explain likely factors 551 variances in of some “justification,” contextual alism in the absence context that the particularities of administrative deference suggest matter. \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 49 28-OCT-14 9:36 the EEOC deference because discrimination is not a subject matter is not a subject discrimination deference because the EEOC knowledge. of expert to the development susceptible word “public” in Title VII. word “public” in Title to the development of expertise, and that discrimination is not a topic susceptible to administrative agencies do not particu- therefore that the reasons for deferring cases. Further, the Court may perceive larly apply in employment discrimination and recognizing discrimination as a itself as having a certain expertise in defining the Equal Protection Clause of the Four- consequence of its role in interpreting be unwilling to relinquish control of this teenth Amendment, and it may therefore area.”). the Court may perceive itself as the primary repository of expertise repository of itself as the primary may perceive the Court equal pro- interpreting the on its history of based in discrimination Amendment. of the Fourteenth tection clause from a view that discrimination is a subject of common knowledge, not susceptible from a view that discrimination is a subject to expert analysis.”). [discrimination] might flow from the Court’s work interpreting the Constitution’s [discrimination] might flow from the Court’s that the roles that individual justices Fourteenth Amendment”). Hart also suggests and the fact that federal courts have have played in anti-discrimination efforts of Title VII and other antidiscrimina- played a significant role in the enforcement on this issue. tion laws might influence the Court’s thinking id. laws prohibiting discrimination is that the the EEOC’s interpretations of federal its own perceived authority and expertise Court simply does not want to relinquish in this context.”). applicable across different administrative contexts. Supreme Court monolith. The same level of deference need not be afforded to all members of this monolith. The same level of deference need not be afforded to all members of administrative community in all circumstances. Deference should be highest when 35568-nys_69-2 Sheet No. 102 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 102 35568-nys_69-2 35568-nys_69-2 Sheet No. 102 Side B 10/28/2014 12:36:12 . L. OLUM 545, 547 C , the Court , 84 L.J. ALE embodies the Y 231 , 100 Chae Chan Ping v. United Judicial Review of Discretionary see also Zadvydas v. Davis In areas in which the political branches areas in which the 234 233 Immigration Law After a Century of Plenary Power: Immigration Law After a Century of Plenary note 126, at 870 (“Although the various areas of note 126, at 870 (“Although the various The Transformation of Immigration Law supra , 1.Policy Implications Foreign Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 196 Container Corp. of Am. v. Franchise Fong Yue Ting v. United States, 149 U.S. 698, 711 (1893) (“The Fong Yue Ting v. United States, 149 Hiroshi Motomura, Peter H. Schuck, and foreign policy, See See See See 232 The longstanding plenary power doctrine The longstanding 232. 233. 231. 234. 1, 1–2 law often implicates the nation’s basic foreign (1984) (“Immigration . EV (1990) (“The [plenary power] doctrine declares that Congress and the executive (1990) (“The [plenary power] doctrine authority over immigration decisions.”). branch have broad and often exclusive nation, and are vested by the con- United States are a sovereign and independent relations, and with all the powers stitution with the entire control of international control . . . .”); Nishimura Ekiu v. United of government necessary to maintain that accepted maxim of international law that States, 142 U.S. 651, 659 (1892) (“It is an inherent in sovereignty, and essential to every sovereign nation has the power, as of foreigners within its dominions, or to self-preservation, to forbid the entrance such conditions as it may see fit to admit them only in such cases and upon prescribe.”). R policy objectives, a circumstance that has sometimes provoked the Supreme Court policy objectives, a circumstance that has constitutional values and more deferen- . . . to be less scrupulous in safeguarding tial to the other branches of government.”); administrative law share many characteristics, it is more apt and more useful to administrative law share many characteristics, concept of a unitary administrative law candidly recognize that the overarching appeals more to sentiment than reality.”). be any just ground of complaint on the States, 130 U.S. 581, 609 (1889) (“If there political department of our government, part of China, it must be made to the the subject.”). which is alone competent to act upon (1983) (explaining that “the foreign policy of the United States” is “much more the province of the Executive Branch and Congress than of this Court”); Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (Courts should “listen with care when the Gov- ernment’s foreign policy judgments . . . are at issue, and . . . grant the Government appropriate leeway when its judgments rest upon foreign policy expertise.”). agencies demonstrate serious focus on the issues.”); agencies demonstrate Immigration Decisionmaking Interpretation Phantom Constitutional Norms and Statutory 552 is appropriate treatment different also suggests context crimination NYUexpert rely on not BIA does as the context, immigration in the ANNUAL SURVEY OF the crim- relies heavily on and the law in many decisions knowledge AMERICAN LAW defer- very least, the EEOC courts. At the entrusted to the inal code [Vol. 69:503 of comparative expertise suggest that the can be read to ence cases in defer- a non-trivial role agencies plays administrative courts and ence decisions. \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 50 28-OCT-14 9:36 possess superior competence. possess superior principle that courts possess limited authority to review immigra- possess limited authority to principle that courts national sover- because immigration implicates tion decisions eignty general “immigra- competence as flowing from characterized this 35568-nys_69-2 Sheet No. 102 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 102 35568-nys_69-2 35568-nys_69-2 Sheet No. 103 Side A 10/28/2014 12:36:12 . EV . L.J. which . L. R A MMIGR 243 V there are . I that are in- 240 EO , 86 G 241 , 16 canon suggests that stat- , to “‘listen with care . . . and Zadvydas today international relations are today international The potential diplomatic ramifi- diplomatic The potential In part, this change may be the In part, this change 238 235 237 Deference and Foreign Affairs Charming Betsy note 161, at 1112 (“The BIA especially lacks ex- note 161, at 1112 (“The BIA especially 236 Explaining the End of Plenary Power supra As an additional matter, although traditional le- As an additional 239 Second, the at 1068–69 history of the Refugee Act explicitly (“[T]he legislative 242 Farbenblum, Peter J. Spiro, at 344 (contending that the standard for judicial review of the politi- at 344 (contending that the standard for at 349. no longer pose its historical at 352 (“The fact that foreign relations See See id. See Id. Id. Id. In recent years the Court has softened the once seemingly ab- once seemingly has softened the years the Court In recent 241. 242. 243. Murray v. The Charming Betsy, 6 U.S. 64, 118 (1804) (“It has also been 235. 533 U.S. 678, 700 (2001). 236. 237. 238. 239. 240. Curtis A. Bradley, Chevron 649, 659 (2000) (“Since early in the nation’s history, courts have been reluctant to 649, 659 (2000) (“Since early in the nation’s of foreign relations.”). contradict the executive branch in its conduct interpretation principles to determine pertise in the application of formal treaty U.S. obligations under international law.”). the domestic laws of the United States acknowledges congressional intent to bring obligations under the Protocol, into full conformity with the nation’s international status) and Article 33 (nonrefoule- specifically with respect to Article 1 (refugee ment) of the Convention.”). of observed that an act of Congress ought never to be construed to violate the law be nations if any other possible construction remains, and consequently can never is construed to violate neutral rights, or to affect neutral commerce, further than 339, 349 (2002) (explaining that the plenary power doctrine arose because 339, 349 (2002) (explaining that the foreign relations, and those relations “[i]mmigration policy inherently implicated great instability and risk”). were, up until recently, characterized by 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE con- and needs administrative serious “the expertise,” tion-related to enforce INS efforts extensive necessarily in the inherent cerns 553 with one need to ‘speak “the Nation’s statute,” and [a] complex immigration matters.” voice’ in doctrine. solute plenary power \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 51 28-OCT-14 9:36 utes be construed to avoid conflicts with international law, utes be construed to avoid conflicts gal doctrines suggest that the BIA, as an executive agency, should that the BIA, as an executive gal doctrines suggest of foreign relations expertise, be viewed as a repository result of a changing world: Whereas “traditional foreign policymak- world: Whereas “traditional result of a changing qualities secrecy, and singular responsibility, ing required speed, process,” antithetical to judicial cations of immigration law have long played a role in justifying the a role in justifying have long played immigration law cations of power doctrine. plenary far less chaotic. good reasons to believe that the BIA is not better than courts at believe that the BIA is not better good reasons to advan- laws. First, the BIA has no comparative interpreting refugee in construing international treaties tage over courts status via the the INA’s definition of refugee corporated into Refugee Act. cal branches’ foreign policy judgments in cal branches’ foreign policy judgments grant . . . appropriate leeway,’” nonjusti- “is a far cry from the stance, in effect, of cases”). ciability found in other plenary power dangers makes it a less weighty interest relative to individual rights.”). dangers makes it a less weighty interest 35568-nys_69-2 Sheet No. 103 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 103 35568-nys_69-2 35568-nys_69-2 Sheet No. 103 Side B 10/28/2014 12:36:12 . 245 ARV H Charming 315, 332 479, 486 . , 48 EV . 1, 3 (1996). . L.J. EV EO . L. R G HI . L. R , 86 U. C ITT note 173, at 137 (“ , 67 U. P Deference to Agency Interpretations because “[o]ne function of the Reflective of this norm, the Reflective of this , 58 supra , 244 Chevron Chevron The Charming Betsy Canon and Separation of The Charming Betsy Canon and Separation , Justice Marshall highlighted the twin require- , Justice Marshall highlighted the twin Nondelegation Canons Strict or Liberal Construction of Penal Statutes 2. Are Severe Penalties Immigration Who Says It’s a Crime?: Cass R. Sunstein, United States v. Bass Livingston Hall, See See . 246 Immigration Law in the Supreme Court 748, 749–51 (1935). . When Congress delegates authority to the BIA implicitly authority to delegates When Congress 245. 244. In 246. is significant not simply because it compels an adherence to definitive inter- is significant not simply because it compels EV First, a fair warning should be given to the world in language that the com- First, a fair warning should be given to law intends to do if a certain line is mon world will understand, of what the as possible the line should be clear. passed. To make the warning fair, so far penalties, and because criminal Second, because of the seriousness of criminal condemnation of the community, punishment usually represents the moral criminal activity. legislatures and not courts should define (1998); Liability of Regulatory Statutes that Create Criminal (2000) (explaining that lenity displaces lenity principle is to ensure against delegations”). ments of notice and legislative supremacy in criminal law: ments of notice and legislative supremacy internal quotation marks omitted). As- 404 U.S. 336, 338 (1971) (citations and the ideas that “only Congress may legit- sumptions underlying criminal law include the line between legal and illegal activity is imately define crime,” “fair warning of punished,” and “criminal statutes required before an individual may be criminally risks of prosecutorial overreaching.” San- should be construed narrowly to counter ford N. Greenberg, Betsy of that concept reflects a willing- national norms, but because the very recognition regarding the Court’s position in the ness to grasp the magnitude of the issues international legal community.”). L. R Powers: Rethinking the Interpretive Role of International Law Powers: Rethinking the Interpretive Role of problematizes the very idea that Congress might delegate the au- very idea that Congress might problematizes the individuals to an criminal punishments on thority to impose agency. in this country.”). For further dis- warranted by the law of nations as understood cussion, see generally Curtis A. Bradley, 554 impli- provisions statutory ambiguous that the notion with conflicts NYUunder the Executive by resolved law be international cating ANNUAL SURVEY OFChevron AMERICAN LAW [Vol. 69:503 provided for in im- the quasi-criminal penalties through ambiguity, norm that pun- conflict with the constitutional migration statutes legislatively defined. ishment must be \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 52 28-OCT-14 9:36 rule of lenity, a longstanding norm of statutory interpretation, longstanding norm of statutory rule of lenity, a 35568-nys_69-2 Sheet No. 103 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 103 35568-nys_69-2 35568-nys_69-2 Sheet No. 104 Side A 10/28/2014 12:36:12 . See EV 249 250 253 in Lopez- . R Cran- T 247 . C The ra- The with UP 248 S , 1994 , 404 U.S. at 347 (“[A]mbiguity Bass Boutilier v. INS, 387 U.S. 118, 132 (1967) (“Deportation Lenity and Federal Common Law Crimes see also , Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893) (“The , Fong Yue Ting v. United States, 149 U.S. , United States v. Wiltberger, 18 U.S. 76 (1820) (applying the rule , United States v. Wiltberger, 18 U.S. 76 at 348 (Before the Supreme Court, “the current debate [over len- at 348 (Before the Supreme Court, “the Muscarello v. United States, 524 U.S. 125, 138–39Muscarello v. United (1998) (explain- Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (explaining that INS v. Cardoza-Fonseca, 480 U.S. 421, 449(1987) (discussing “the INS v. Cardoza-Fonseca, 480 U.S. 421, See, e.g. See id. See, e.g. See See the Supreme Court adopted the immigration rule of len- adopted the immigration the Supreme Court the Court enumerates the various procedural protections available to the Court enumerates the various procedural Compare based on the principle that the penalty of removal created by that the penalty of removal based on the principle 251 Although immigration proceedings are indisputably civil in na- proceedings are indisputably Although immigration The rule of lenity requires that ambiguous provisions that ambiguous requires lenity rule of The 248. 247. the rule of degree of ambiguity is necessary to trigger It is unclear what 249. Dan M. Kahan, 250. 251. 252. 253. 252 don v. United States, 494 U.S. 152, 158 (1990) (“[I]t is appropriate to apply the don v. United States, 494 U.S. 152, 158 in the ambit of the statute’s coverage.”). rule of lenity in resolving any ambiguity that “penal laws are to be construed strictly”); lenity. that there is a grievous the rule [of lenity], we must conclude ing that “[t]o invoke omitted), in the statute”) (internal quotations ambiguity or uncertainty concerning the ambit of criminal statutes should be resolved in favor of lenity.”) concerning the ambit of criminal statutes (citations omitted). 345, 345–46(“Narrow construction of criminal statutes, it is proclaimed, (1994) proscribes; it constrains the discretion of assures citizens fair notice of what the law it embodies our legal system’s law enforcement officials; and, most fundamentally, in prison unless the lawmaker has instinctive distaste against men languishing clearly said they should.”). discretion, individual liberty, or any of ity] really isn’t about notice, prosecutorial with lenity; it is about how criminal law- the other values conventionally associated Congress and the judiciary.”). making power should be allocated between for crime.”); INS v. Lopez-Mendoza, 468 order of deportation is not a punishment proceeding is a purely civil action to deter- U.S. 1032, 1038 (1984) (“A deportation not to punish an unlawful entry, though mine eligibility to remain in this country, country is itself a crime.”). In entering or remaining unlawfully in this Mendoza immigrants in removal proceedings. criminal defendants but not available to id. lingering ambiguities in deportation stat- longstanding principle of construing any utes in favor” of the noncitizen). is a “[w]e resolve the doubts in favor of that construction because deportation drastic measure”); is the equivalent to banishment or exile. Though technically not criminal, it practi- ture, 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE 555 crimi- to interpret federal the power to distribute Lenity functions law and Con- courts that interpret the criminal nal law between a preference for congressional decision-making. gress, enforcing \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 53 28-OCT-14 9:36 ity for noncitizens. harsh consequences the INA has particularly criminal statutes be construed in favor of the defendant. of the in favor construed be statutes criminal the public ensures that First, lenity for lenity are threefold: tionales sec- culpable behavior; as criminally of what qualifies has fair notice third, len- and of law enforcement; cabins the discretion ond, lenity criminal punishments. alone defines that Congress ity ensures 35568-nys_69-2 Sheet No. 104 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 104 35568-nys_69-2 35568-nys_69-2 Sheet No. 104 Side B 10/28/2014 12:36:12 , so and 254 See, e.g. 255 “At risk in immigration ( note 161, at 289 supra , . Despite the severity of immigration penalties, the severity of immigration Despite , 480 U.S. at 449 (“Deportation is always a harsh measure; , 480 U.S. at 449 (“Deportation is always , 333 U.S. at 10 (“[D]eportation is a drastic measure and at , 333 U.S. at 10 (“[D]eportation is a drastic 257 OGALES ET AL The Counsel Conundrum: Effective Representation in Immigration Pro- The Counsel Conundrum: Effective Representation -N note 134, at 1596 (“The primary function of Treasury tax person- , 326 U.S. at 164 (“The impact of deportation upon the life of an , 326 U.S. at 164 (“The impact of deportation AMJI Additionally, the need for fair notice and the dangers of fair notice and the need for Additionally, R supra Cardoza-Fonseca Fong Haw Tan Wixon in 256 , 254. 255. 256. 257. Prosecutorial overreach has also caused concern among some commen- proceedings are aspects central to human life and dignity: the unity of family, the proceedings are aspects central to human children, access to medical treatment ability to work to support oneself and one’s of being returned to a country where and education, and sometimes the prospect account of race, religion, nationality, or one would face torture or persecution on the BIA’s interpretation of the INA political opinion.”). Distinguishing between code, the Court has also acknowledged and interpretation of the federal criminal in immigration laws should be that “ambiguities in criminal statutes referenced v. Holder, 130 S. Ct. 2577, construed in the noncitizen’s favor.” Carachuri-Rosendo 2589 (2010). it is all the more replete with danger when the alien makes a claim that he or she it is all the more replete with danger when if forced to return to his or her home will be subject to death or persecution country.”). times the equivalent of banishment or exile.”). times the equivalent of banishment or Hickman, nel and the IRS is to collect government revenues; and in light of this goal, Trea- sury and the IRS may be biased toward revenue maximization and may adopt of regulations and rulings that test the boundaries of reasonableness in pursuit alien is often as great if not greater than the imposition of a criminal sentence.”). alien is often as great if not greater than tators in other areas where agencies assume a prosecutorial function. 556nature severe, punitive to the spoken also frequently Court has The NYU“harsh,” these penalties terming penalties, of immigration ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 to the resident alien is so severe that we have extended cally may be. The penalty cases, we look with process. Even apart from deportation the protection of due the administrative staff of power so broad as to allow suspicion at those delegations v. Gonzales, 347 U.S. the fundamental policy.”); Barber the power to formulate 637, 642–43 a in character, deportation statutes as (1954) (“Although not penal exile, and should be inflict the equivalent of banishment or practical matter may 391 (1947) (“Deporta- Delgadillo v. Carmichael, 332 U.S. 388, strictly construed.”); v. Wixon, 326 U.S. of banishment or exile.”); Bridges tion can be the equivalent of an alien is often as impact of deportation upon the life 135, 164 (1945) (“The A deported alien than the imposition of a criminal sentence. great if not greater to his native land his friends and his livelihood forever. Return may lose his family, even death.”); Ng Fung Ho v. White, 259 may result in poverty, persecution and result also in loss of both property and U.S. 276, 284 (1922) (Deportation “may Aris v. Mukasey, 517 F.3d 595, 600 (2d life, or of all that makes life worth living.”); vulnerable population who come to this Cir. 2008) (describing immigrants as “a who often arrive unfamiliar with our lan- country searching for a better life, and and in fear”); Margaret McKeown & guage and culture, in economic deprivation Allegra McLeod, ceedings \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 54 28-OCT-14 9:36 unchecked prosecutorial discretion are equally present in the im- equally present discretion are prosecutorial unchecked context. migration even “as great if not greater than the imposition of a criminal sen- of a criminal than the imposition great if not greater even “as tence.” “drastic” as to be “the equivalent of banishment or exile,” of banishment as to be “the equivalent “drastic” 35568-nys_69-2 Sheet No. 104 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 104 35568-nys_69-2 35568-nys_69-2 Sheet No. 105 Side A 10/28/2014 12:36:12 OR- supra M OHN J Bonetti v. Rogers, (June 17, 2011), 259 see also EMORANDUM FROM NFORCEMENT M note 246 (same); Kahan, When penal provisions are When penal provisions E See 261 supra USTOMS Destabilizing Due Process and Evolutive Equal C Sunstein, note 160, at 32 (“The courts have adhered to the myth note 160, at 32 (“The courts have adhered . 1183, 1206 (2000) (characterizing lenity as reflecting see also because immigration penalties are civil, ren- are penalties immigration because Here, the Court treats lenity as a type of Here, the Court EV 258 supra 260 MMIGRATION AND , INS v. St. Cyr, 533 U.S. 289, 324 (2001) (explaining that the , INS v. St. Cyr, 533 U.S. 289, 324 (2001) U.S. I William N. Eskridge, Jr., UCLA L. R Roberts, http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial- OF TON See See See, e.g. . , 47 IR In addition to harshness, the Court stated that the immigration the Court stated to harshness, In addition 261. 258. 259. 260. 10 (1948); Fong Haw Tan v. Phelan, 333 U.S. 6, , D 356 U.S. 691, 699 (1958) (“When Congress leaves to the Judiciary the task of im- 356 U.S. 691, 699 (1958) (“When Congress the ambiguity should be resolved in favor puting to Congress an undeclared will, consideration, or for want of sympa- of lenity. And this not out of any sentimental evil or anti-social conduct. It may thy with the purpose of Congress in proscribing law to resolve doubts against the imposi- fairly be said to be a presupposition of our Bell v. United States, 349 U.S. 81, 83 tion of a harsher punishment.”) (quoting (1955)). Protection available at that the ICE then relies on DOJ attorneys discretion-memo.pdf. However, the fact as the attorneys arguing cases do to litigate immigration cases may raise concerns, not have the opportunity to exercise discretion. based on his conduct in this country that the deportation of an alien, even when residence, is not punishment in the following a lawful admission for permanent plenary power of Congress to legislate on constitutional sense. Consequently, the Constitution’s ex post facto, bill of attain- immigration matters is not limited by the clauses.”). der, and cruel and unusual punishment is punishment for past behavior”); Court “reject[s] the argument that deportation 698, 709 (1893) (defining “deportation” Fong Yue Ting v. United States, 149 U.S. country simply because his presence is as “the removal of an alien out of the and without any punishment being deemed inconsistent with the public welfare, the laws of the country out of which he is imposed or contemplated, either under he is taken”). sent or under those of the country to which nondelegation doctrine); note 249, at 347 (“[T]he rule of lenity . . . is best understood as a ‘nondelegation doctrine’ in criminal law.”). that goal.”). In the immigration context, Immigration and Customs Enforcement immigration context, Immigration and that goal.”). In the prosecution of noncitizens. (ICE) manages the 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE qual- legally does not removal that the position taken has the Court punishment ify as 557 explaining intent, implied congressional was based on rule of lenity we will not the individual, considerable for the stakes are that “since that his freedom beyond to trench on Congress meant assume that meanings of by the narrowest of several possible which is required the words used.” \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 55 28-OCT-14 9:36 ambiguous, the role of courts is not to behave as delegates of inter- role of courts is not to behave as ambiguous, the “most democrati- but instead to ensure that the pretive authority, institution” makes those decisions—incally appropriate other alone has the ca- the fact that “the legislature words, lenity reflects dering the traditional rule of lenity inapplicable. traditional rule dering the makes the de- to ensure that Congress alone nondelegation canon harsh punishment. cision to dole out 35568-nys_69-2 Sheet No. 105 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 105 35568-nys_69-2 35568-nys_69-2 Sheet No. 105 Side B 10/28/2014 12:36:12 . . T . S , and be- Brian supra LA MMIGR Chevron 264 See . I and be- 34 F Indeed, EO , Chevron, 17 265 G Chevron 263 , 17 does not apply to does not Of Lenity, Deference , as each doctrine counsels , as each Chevron Chevron Chevron Cass Sunstein has supplied a more Cass Sunstein has The Immigration Rule of Lenity and 266 note 246, at 317 (“The nondelegation canons re- note 246, at 317 (“The nondelegation Slocum, note 261. Lenity might also be seen as a doctrine de- note 261. Lenity might supra 905, 912–18(discussing the applicability of (2007) 267 . EV supra See also Canons, the Plenary Power Doctrine, and Immigration Law . R (“The law in question, a criminal statute, is not administered by (“The law in question, a criminal statute, at 522 (“The Court’s use of lenity may also stem from its recogni- at 522 (“The Court’s use of lenity may 262 AX Sunstein, Crandon v. United States, 494 U.S. 152, 177 (1990) (Scalia, J., con- Crandon v. United States, 494 U.S. 152, at 178. This rationale has implications in the immigration context as at 178. This rationale has implications . T The Immigration Rule of Lenity and . L.J. A 363, 369 (2006) (“An immigration rule of severity . . . might more accu- See See id. Id. See V . EV , 2 MMIGR Lenity conflicts directly with directly with Lenity conflicts 264. 265. 266. 267. 263. Hickman, For further discussion, see Kristin E. 262. Eskridge, I . 515, 522 (“[T]he Court created the rule of lenity to protect values, or ‘under- . 515, 522 (“[T]he Court created the rule EO U. L. R L.J versus lenity in the tax context). the interpretation of those charged with curring) (“[W]e have never thought that to deference.”). prosecuting criminal statutes is entitled any agency but by the courts.”) well, because although proceedings against immigrants are brought by the Depart- well, because although proceedings against of Justice, the agency which also ment of Homeland Security, the Department cases. houses the BIA, prosecutes immigration minimalism, designed to ensure that present a salutary kind of democracy-forcing with a superior democratic pedigree.”). certain choices are made by an institution However, a nondelegation canon based on the immigration rule of lenity would most likely reflect a fictional, presumed congressional intent rather than true con- gressional intent, considering the history of legislation directed at noncitizens. Brian G. Slocum, tion that noncitizens typically have no political voice or access to political power tion that noncitizens typically have no against them and ensure that the and its desire to counteract possible prejudice political process treats them fairly.”). KPMG G. Slocum, signed to protect minority interests from unfavorable political decisions. interests from unfavorable political signed to protect minority Court would not directly protect by con- enforced constitutional norms,’ [that] the has chronicled the efforts of the Court to stitutional review.”). Hiroshi Motomura in the immigration context to “undermine apply “phantom constitutional norms” interpretation.” Motomura, the plenary power doctrine through statutory note 231, at 549. G 558 by assigning required judgments” moral those to make pacity NYUpunishment. ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 56 28-OCT-14 9:36 theoretical rationale, arguing that lenity should be treated as a clear arguing that lenity should be theoretical rationale, delegated prevents an agency from assuming statement rule that Congress delegat- of a plain statement from power in the absence ing that authority. Department of Justice interpretations of criminal statutes interpretations of Justice Department courts to resolve a high level of ambiguity in a different way based in a different level of ambiguity resolve a high courts to intent. about congressional presumptions on different the Supreme Court has suggested that Court has the Supreme had incentive to deference to prosecutors who cause to grant doctrine of lenity broadly would “replac[e] the construe statutes of severity.” with a doctrine cause the agency does not administer the criminal codes does not administer the criminal cause the agency 35568-nys_69-2 Sheet No. 105 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 105 35568-nys_69-2 35568-nys_69-2 Sheet No. 106 Side A 10/28/2014 12:36:12 This may pro- This may 268 note 249, at 347 (arguing supra Matter of Cerna, 20 I. & N. Dec. 270 Kahan, see also See criminal lawmaking power to courts”). In criminal lawmaking power to courts”). delegate note 160, at 32–33 (“[A]liens in general are a disad- at 353. Kahan cites antitrust, civil rights law, and labor at 353. Kahan cites antitrust, civil rights 3.Process Theory Political note 160, at 30; Id. supra supra . In the immigration context, Congress has expressly delegated . In the immigration context, Congress Id Roberts, Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (adopting a presumption Zadvydas v. Davis, 533 U.S. 678, 701 (2001) Noncitizens face significant collective action problems, as significant collective action problems, Noncitizens face See See 269 In the words of former BIA Chairman Maurice Roberts, the former BIA Chairman Maurice In the words of Apart from the shared application of lenity principles in crimi- lenity principles of application shared from the Apart 268. 269. Roberts, 270. 8 U.S.C. §the power to “establish 1103 (2009) (giving the Attorney General work of the BIA is “unique” among administrative tribunals because is “unique” among administrative work of the BIA affect human be- laws directly and exclusively “our immigration ings.” the immigration rule of lenity.”). This rately reflect congressional intent than with criminal law in practice and with nondelegation function of lenity conflicts Congress delegates interpretive author- immigration law, because in both contexts and in both contexts the recipient of dele- ity, to courts and agencies respectively, authority rather than forcing Congress to gated authority typically exercises that address an issue with greater specificity. in seeking political consensus, Congress response to time pressure and challenges or highly general legislation that is has in many instances enacted “open-textured empowering the judiciary to resolve the nonetheless directly enforceable in court,” meaning of the statute. 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE simi- other has acknowledged Court law, the immigration nal and 559 Court has example, the In one these contexts. larities between contexts and immigration the criminal analogized between usefully of executive detention. the law when explicating \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 57 28-OCT-14 9:36 they cannot vote, frequently have lower incomes, may lack profi- frequently have lower incomes, they cannot vote, repre- and are not guaranteed state-sponsored cient language skills, immigration courts. sentation before that “[t]he historic underenforcement of lenity . . . reflects the existence of an- that “[t]he historic underenforcement well established, rule of federal other largely unacknowledged, but nonetheless criminal law: that Congress may that courts have exercised broad power law as examples of broadly drafted statutes in interpreting. vide an additional reason not to defer to BIA interpretations of the BIA interpretations not to defer to reason vide an additional INA. general interpretive authority of the broadly drafted INA to the Attorney General. general interpretive authority of the broadly See out this section” of the INA and the such regulations . . . necessary for carrying power to “delegate such authority”). limiting detention to a reasonable amount of time because the Court “ha[d] limiting detention to a reasonable amount contexts,” then citing presumptions based adopted similar presumptions in other delays in probable cause hearings). on the meaning of “petty offense” and 399, 408 (BIA 1991) (“The laws that we administer and the cases we adjudicate 399, 408 (BIA 1991) (“The laws that we ways.”). often affect individuals in the most fundamental vantaged minority in our society. Many have come to escape the poverty and hope- less lack of opportunity in their native lands. Many arrive under emergency conditions as refugees from political or religious persecution. Most lack profi- ciency in our language and knowledge of our institutions. Economically, aliens 35568-nys_69-2 Sheet No. 106 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 106 35568-nys_69-2 35568-nys_69-2 Sheet No. 106 Side B 10/28/2014 12:36:12 , not 271 supra Katzmann, John Hart Ely 273 see also for the principle that “it is an ap- for the principle 274 Toward a Representation-Reinforcing Mode of Judicial Review Toward a Representation-Reinforcing Mode our representatives to pass laws that treat the majority coali- our representatives to pass laws that treat note 271, at 455. (“Our Constitution by and large has remained a constitution (“Our Constitution by and large has at 458 (“What the system, at least as described thus far, does at 458 (“What the system, at least as described Carolene Products 451, 452–53 (1978). . supra encourage EV have access to fair and equal treatment. have access to fair deference in the immigration context because noncitizens deference in the See id. See id. 272 275 . L. R Political accountability is particularly problematic as a basis for is particularly problematic Political accountability One school of constitutional interpretation has argued that has argued interpretation of constitutional school One D 272. 273. 274. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938). 275. Ely, 271. John Hart Ely, M ensure is the effective protection of minorities whose interests differ from the in- ensure is the effective protection of minorities terests of most of the rest of us. For if it is not the ‘many’ who are being treated terests of most of the rest of us. For if that obviously will not be so comforta- unreasonably but rather only some minority, the contrary, there may be political bly amenable to political correction. Quite pressures to in one way, and one or more minor- tion on whose continued support they depend favorable way . . . .”). ities they feel they do not need in a less properly so called, concerned with constitutive questions—primarilyproperly so called, concerned with constitutive with the measure with whether all the people mechanics of decision, but also in important are in fact being represented or rather some are being unjustifiably excluded from to either the process or the benefits with which the effective majority has seen fit favor itself.”) note 4, at 586 (“Immigrants often come to this country in fear, fleeing from perse- note 4, at 586 (“Immigrants often come the language, not knowing to whom to cution, escaping from poverty, not knowing while working to make a better life. In all turn for competent legal advice, all the counsel for immigrants all but dooms the too many cases, the dearth of adequate dream.”). immigrant’s chances to realize the American 37 Chevron unable to afford the rapidly mounting frequently have lower incomes and are As nonvoters, they lack political charges for adequate professional representation. stress they present a ready and defenseless clout. In times of economic or political also for concerned citizens seeking simplis- target not only for the demagogues but problems.”); tic answers to complex social and economic 560 NYU val- substantive particular vindicating and identifying than rather ANNUAL SURVEY OF “recognize[ should instead ues, courts AMERICAN be- ] the connection LAW of the functioning and the proper . . political activity tween . [Vol. 69:503 process. democratic seek to police that process” and democratic on society, values imposing substantive words, rather than In other is properly process that the political seek to ensure courts should that minority many cases, this means ensuring functioning. In groups the political pro- are therefore not represented in cannot vote and this simply may not mat- cess. From a formal doctrinal perspective, \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 58 28-OCT-14 9:36 propriate function of the Court to keep the machinery of of the Court to keep the propriate function to make sure the running as it should, majoritarian democracy are kept participation and communication channels of political open.” looks to the theory of constitutional interpretation outlined in foot- of constitutional interpretation looks to the theory note four of 35568-nys_69-2 Sheet No. 106 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 106 35568-nys_69-2 35568-nys_69-2 Sheet No. 107 Side A 10/28/2014 12:36:12 , Spiro, deference as a “rule of See, e.g. Further aggra- Further St. Cyr 277 Chevron 1281, 1292 (2002). . EV . L. R AL S. C 4. Conclusions The Rehnquist Court, Structural Due Process, and Semis- The Rehnquist Court, Structural Due Process, , 75 note 160, at 41 (“While it may be true that other fed- note 160, at 41 (“While it may be true supra 278 Dan T. Coenen, Roberts, See See deference, then the fact that noncitizens lack access to the the fact that noncitizens lack access deference, then But the Supreme Court has remarked on the political on the has remarked Court the Supreme But note 236, at 339 (describing the plenary power doctrine as the doctrine note 236, at 339 (describing the plenary The unique qualities of the immigration context establish a The unique qualities of the immigration The political process in immigration adjudication raises con- in immigration adjudication The political process 278. 276.plenary power doctrine grants Con- As a longstanding matter of law, the 277. One commentator has charac- INS v. St. Cyr, 533 U.S. 289, 315 (2001). 276 eral administrative tribunals, such as the Federal Trade Commission and the Se- eral administrative tribunals, such as the difficult cases which receive original curities and Exchange Commission, have to equate the Board’s cases with review by their professional staffs, it is erroneous the financial interests involved, the parties those of the other agencies. Because of are invariably represented by counsel. to the proceedings before those agencies and argue cases before the agency. In the Large agency staffs are available to brief cases that come before the Board, many of the aliens are unrepresented or were unrepresented at the hearing before the immigration judge. Even when the alien before the Board has counsel, the quality of representation may still be inade- quate. Not all attorneys or other representatives who appear in immigration cases have the necessary expertise.”). gress and the Executive broad authority in the immigration context. gress and the Executive broad authority supra abjured any significant role in policing under which “the courts have persistently context]”). political branch conduct in the [immigration rule of lenity in terized the application of the immigration from the representation-reinforce- clarity [that] should and does draw support long associated with Professor John ment theory of constitutional interpretation Hart Ely.” ubstantive Constitutional Review normative backdrop against which courts make decisions about def- normative backdrop against which legal norms counsel in favor erence to the BIA. Whereas traditional foreign policy is implicated, lenity of deference to the BIA when against deference in domestic and political process theory counsel 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE ter. 561 for determin- critical decision-making apparatus cerns because the liberties, is asylum, which directly affects personal ing removal and the BIA through off to immigration courts and effectively handed seriously the no- in the INA. If courts take open-ended provisions agencies justifies accountability of executive tion that the political Chevron counsels in favor of denying political process de novo judicial review. and providing for \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 59 28-OCT-14 9:36 tenuousness of the noncitizens living within the borders of the the borders within living noncitizens of the tenuousness vote, they cannot that since “noncitizens observing United States, to adverse legislation.” vulnerable are particularly vating this problem, noncitizens do not have the right to a court- have the right do not problem, noncitizens vating this immigra- before are often unrepresented attorney and appointed tion judges. 35568-nys_69-2 Sheet No. 107 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 107 35568-nys_69-2 35568-nys_69-2 Sheet No. 107 Side B 10/28/2014 12:36:12 279 step Chevron ] accounts Chevron Chevron and respect legis- step zero inquiry asks and the BIA has ap- note 249, at 346 (“Judicial to adopt ambiguity as to adopt ambiguity 283 Chevron Chevron supra Chevron III. framework should allocate interpretive framework should ’s rule requiring deference to an en- ’s rule requiring Unless the ambiguous statutory provi- Unless the ambiguous statutory 282 Part III of this Note argues that courts review- Part III of this Note Chevron Chevron 280 framework applies at all). , 555 U.S. at 530 (Stevens, J., concurring) (“[ , 555 U.S. at 530 (Stevens, J., concurring) Part I.A (explaining that the Part II.B (characterizing the BIA’s expertise in immigration- , Higgins v. Holder, 677 F.3d 97, 109 (2d Cir. 2012) (Katzmann, , Higgins v. Holder, 677 F.3d 97, 109 (2d , Kawashima v. Holder, 132 S. Ct. 1166, 1176 (2012) (noting that , Kawashima v. Holder, 132 S. Ct. 1166, EXPERTISE OF COURTS AND THE BIA EXPERTISE OF Chevron See Negusie See e.g. See supra See, e.g. See supra ’s goal. The threshold inquiry, whether the BIA exercised its expertise in threshold inquiry, whether the BIA GRANTING DEFERENCE BASED ON THE RELATIVE BASED ON THE DEFERENCE GRANTING As discussed in Part I, when interpreting the INA courts often I, when interpreting the INA As discussed in Part 281 280. 279. 281. 282. 283. enforcement of [the criminal rule of] lenity is notoriously sporadic and enforcement of [the criminal rule unpredictable.”). although “we have, in the past, construed ambiguities in deportation statutes in although “we have, in the past, construed present statute clear enough that resort the alien’s favor,” “the application of the Kahan, to the rule of lenity is not warranted”); questions between courts and the BIA based on relative institu- courts and the BIA based questions between tional competence. for the different institutional competencies of agencies and courts: Courts are ex- for the different institutional competencies agencies are expert at statutory pert at statutory construction, while implementation.”). mechanically apply mechanically apply 562 their own, on decisive are rarely norms these Though contexts. NYUintent. congressional concerning courts’ presumptions inform they ANNUAL SURVEY OF of the application favor of limiting counsel in These norms AMERICAN LAW agencies. of courts and relative expertise based on the to the INA [Vol. 69:503 statutory reasonable interpretation of ambiguous trusted agency’s if courts read provisions. However, \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 60 28-OCT-14 9:36 sion in question implicates BIA expertise sion in question implicates BIA ing BIA interpretations should consider, as part of the ing BIA interpretations should consider, zero interpreting the statute. the sole touchstone of deference and systematically defer to all BIA of deference and systematically the sole touchstone will fail to realize ambiguous INA provisions, they interpretations of Chevron plied its expertise to interpret that statutory provision, courts have plied its expertise to interpret that intended to implicitly delegate no reason to believe that Congress By deferring only to expert BIA interpretive authority to the BIA. all other questions of law interpretations of the INA and reviewing of de novo, courts effectuate the purposes whether the INA is “silent” on the provision in ques- J., concurring) (arguing that even if the it is tion, courts should only defer to the BIA’s interpretation “to the extent that as within the domain of the agency’s special expertise in immigration law, as long it is reasonable”). specific subject matter and the INA). 35568-nys_69-2 Sheet No. 107 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 107 35568-nys_69-2 35568-nys_69-2 Sheet No. 108 Side A 10/28/2014 12:36:12 289 ). Chevron Negusie v. This distinction Aguirre-Aguirre 284 Nonetheless, some circuits apply Nonetheless, some analysis and identifies types of INA provisions analysis and identifies types of 286 , 555 U.S. at 530 (Stevens, J., concurring). and has resolved many of the courts of appeals’ and has resolved Part II.A. Part III.C. note 18. 285 , Denis v. Att’y Gen., 633 F.3d 201, 209 n.11 (3d Cir. 2011) (deny- , Prudencio v. Holder, 669 F.3d 472, 482 (4th Cir. 2012) (denying , Prudencio v. Holder, 669 F.3d 472, 482 and the provision does not involve foreign policy, and the provision does not involve Chevron Courts faced with the issue can resolve circuit splits on the issue can resolve circuit Courts faced with 288 step zero. First, when courts have previously interpreted the step zero. First, when courts have See Negusie See supra See infra See supra See, e.g. See, e.g. 287 as “subtle” yet nevertheless “importan[t].” as “subtle” yet nevertheless The Supreme Court has not clearly drawn this distinction be- this distinction not clearly drawn Court has The Supreme Part III.A proposes a test for analyzing the BIA’s expertise at Part III.A proposes a test for analyzing 284. 285. 286. 287. 288. 289. deference to BIA interpretation of “moral turpitude” because “courts . . . have deference to BIA interpretation of “moral has been able to interpret this phrase for over a century, and a robust body of law developed”). ing deference in part because the interpretation of Section 1101(a)(43)(S) bore “none of the same [foreign policy] implications” present in the provision does not implicate BIA expertise. Second, when the the provision does not implicate reasoning or is otherwise devoid of BIA’s reasoning mirrors judicial BIA interpretation lacks exper- immigration-specific expertise, that Court precedent that supports the tise. Part III.B discusses Supreme that a step zero-based approach is proposed test. Part III.C argues rule because it cabins judicial dis- preferable to a blanket deference Additionally, a step zero- cretion and produces greater uniformity. a step two-based approach because based approach is preferable to between courts and the it better allocates interpretive authority current treatment of BIA ex- BIA. Part III.D discusses the circuits’ pertise in 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE in- when expertise comparative has the BIA Generally, intent. lative where or accountability by political guided must be terpretation 563 and courts factors, immigration-specific depends on interpretation terms of plain text, legal in interpreting expertise have comparative criminal in the mirror those contained provisions that art, and code. and the BIA, institutional competence of courts tween the relative in characterized in his concurrence which Justice Stevens Holder \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 61 28-OCT-14 9:36 immigration cases. of ambiguous INA to various BIA interpretations whether to defer as a prerequisite to the agency’s expertise provisions by considering deference. Chevron provision mechanically to defer to all BIA interpretations of ambiguous provi- defer to all BIA interpretations of mechanically to has applied its ex- considering whether the BIA sions rather than pertise. recurs throughout the Supreme Court’s administrative deference the Supreme Court’s administrative recurs throughout jurisprudence 35568-nys_69-2 Sheet No. 108 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 108 35568-nys_69-2 35568-nys_69-2 Sheet No. 108 Side B 10/28/2014 12:36:12 Hig- step Applies is triggered Chevron , as long as it is Chevron Chevron is based on the assump- Patel v. Ashcroft, 294 F.3d 465, See also Chevron 290 recommends such an approach, acknowledging recommends such an approach, This approach acknowledges statutory ambiguity, This approach acknowledges 291 292 at 108–09 (emphasis added). Id. Rather than accepting an overbroad rule that always grants the that always grants overbroad rule accepting an Rather than To determine whether the interpretation of a particular statu- To determine whether the interpretation In effectuating this reasoning, courts should take into account reasoning, courts should take In effectuating this A. Whether a Clear Test to Determine Stating 290. 8 U.S.C. § felony’ means 1101(a)(43)(S) (2012) (“The term ‘aggravated 291. 677 F.3d 97 (2d Cir. 2012). 292. 467 (3d Cir. 2002) (explaining that “legal issues that turn on a pure question of 467 (3d Cir. 2002) (explaining that “legal issues that turn on a pure question law not implicating the agency’s expertise” do not receive deference). . . . an offense relating to obstruction of justice . . . for which the term of imprison- . . . an offense relating to obstruction of ment is at least one year . . . .”). 564 to interpret. more competent BIA is relatively or the a court that NYU that conclude to approach the proposed applies III.E Section ANNUAL SURVEY OF 8 U.S.C. interpretation of to the BIA’s not defer courts should AMERICAN LAW§ 1101(a)(43)(S). [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 62 28-OCT-14 9:36 BIA deference, courts should adopt a more nuanced reading of Su- should adopt a more nuanced BIA deference, courts that acknowledges that preme Court precedent as interpreter but presence of an entrusted agency not only by the at at issue. Accordingly, the inquiry by the specific text but recognizes that the BIA should not receive deference for inter- but recognizes that the BIA should importation of definitions pretations that depend on the agency’s from other statutes. courts should look to (1) tory provision requires agency expertise, and (2) the form of the BIA’s the nature of the provision at issue, of the INA provision should reasoning. The inquiry into the nature focus on congressional intent, as intent to delegate. The tion that ambiguity indicates congressional reasoning should serve to deter- inquiry into the form of the BIA’s in question is susceptible to the mine whether the INA provision reasonable.” that even when an INA provision is ambiguous, courts should only that even when an INA provision “to the extent that it is within the defer to the BIA’s interpretation in immigration law domain of the agency’s special expertise zero should be whether Congress intended that the BIA be the pri- Congress intended that zero should be whether approach suggests of the specific text at issue. This mary interpreter every ambiguous not entrust the interpretation of that Congress did to the BIA. phrase in the INA INA, but addition- that the BIA administers the not merely the fact than a court to interpret ally whether the BIA is more competent actually applied its expertise in the statute and whether the BIA Katzmann’s concurrence in rendering its interpretation. Judge gins v. Holder 35568-nys_69-2 Sheet No. 108 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 108 35568-nys_69-2 35568-nys_69-2 Sheet No. 109 Side A 10/28/2014 12:36:12 296 to BIA but instead The BIA had 293 Chevron note 173 (“It is un- The Court rea- 298 299 supra Deference to Agencies’ , the Court denied defer- the Court denied 297 . Certainly, unlike the EPA, it did not Chevron Aguirre Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, Matter of Velazquez-Herrera, 24 I. & , Matter of Lok, 18 I. & N. Dec. 101, 105 (BIA 1981) , Matter of Lok, 18 I. & N. Dec. 101, deference was inappropriate because the BIA deference was inappropriate because INS v. Cardoza-Fonseca Bracamontes v. Holder, 675 F.3d 380, 386 (4th Cir. 2012) Bracamontes v. Holder, 675 F.3d 380, see also the Third Circuit expressly observed that “[a]lthough we do not the Third Circuit expressly observed that Cf. See, e.g. Immigration Law in the Supreme Court , Chevron there is little reason to presume that the BIA has any presume that the little reason to there is Denis at 448. at 448 n.31. than to the cross-disciplinary balancing contemplated in contemplated balancing the cross-disciplinary than to 295 See, e.g. Id. Id. , Expert Policymaking, Not Agencies’ Textual Interpretation Expert Policymaking, 294 The Supreme Court has implicitly considered the comparative has implicitly considered the The Supreme Court 294. In 295. 293. its interpretation implements The BIA has in other cases asserted that 296. that the BIA is better situated For example, there is no reason to suppose 297. 480 U.S. 421 (1987). 298. 299. B. Requires Supreme Court Precedent (“[W]e conclude that the policies of the Act would best be served by deeming the (“[W]e conclude that the policies of the to end with the entry of a final admin- lawful permanent resident status of an alien istrative order of deportation.”). approach to resolving the instant matter, defer to the BIA here, we will discuss its 633 F.3d at 210. as it bears some similarities to our own.” statute . . . . [T]he Board simply decided a fill in substance to the open texture of a Refugee Act and did not even mention case. It lent no new interpretation to the the Convention.”); executive policy. 508–09 BIA gap-filling as “seeking to identify . . . ‘fed- (BIA 2008) (characterizing eral policies’”). court, but the BIA’s process of poli- to discern congressional intent than a federal relies on BIA determinations of con- cymaking through interpretation nonetheless gressional intent. BIA interpretation of 8 U.S.C. (denying deference to a congressional intent-based § because “[r]egardless of the BIA’s speculation concerning con- 1101(a)(13)(A) gressional intent, however, the statute plainly says what is says.”). clear . . . exactly what the Board did in 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE not in- does judgment BIA’s If the expertise. agency of application exten- BIA’s on the based any insights or policy considerations voke 565 claims, immigration in adjudicating sive experience \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 63 28-OCT-14 9:36 Chevron particular advantage over courts in reaching its interpretation. over courts in reaching its particular advantage ence to the BIA’s interpretation of “well-founded fear” despite find- interpretation of “well-founded ence to the BIA’s contained “some ambiguity.” ing that the phrase expertise of courts and agencies in cases applying and agencies in cases applying expertise of courts interpretations. In interpretations. soned that read the “well-founded fear of persecution” standard as identical to read the “well-founded fear of persecution” standard. the “clear probability of persecution” draws inferences from prior judicial construction of similar provi- of similar judicial construction from prior draws inferences by the analysis undertaken resemblance to bears a closer sions and judges 35568-nys_69-2 Sheet No. 109 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 109 35568-nys_69-2 35568-nys_69-2 Sheet No. 109 Side B 10/28/2014 12:36:12 This was 301 by explaining deference need Stevens distin- In that case, the Instead, the ques- the Instead, 306 303 300 Chevron Aguirre-Aguirre and the Court addressed the BIA’s principles, as courts are more com- as courts are more principles, , Justice Stevens’s concurrence waxes on , Justice Stevens’s concurrence waxes the Court deferred to the BIA’s interpre- the Court deferred Chevron Matter of McMullen, 19 I. & N. Dec. 90, 97–98 (BIA 302 the Court determined that two statutory pro- the Court determined that two statutory 304 Aguirre-Aguirre Cardoza-Fonseca See also at 533. at 448 (explaining that courts must defer to agency interpretations at 448 (explaining that courts must defer at 422. at 446. at 424–25. Negusie v. Holder To Justice Stevens, “[t]he label is immaterial. What mat- To Justice Stevens, “[t]he label See id. Id. Id. Id. Id. See id. Justice Stevens also explained that “ Justice Stevens also explained that Cardoza-Fonseca 305 307 The precise contours of this functional distinction remain un- The precise contours of this functional 300. 301. 302. 526 U.S. 415 (1999). 303. 304. 305. Negusie v. Holder, 555 U.S. 511, 531 (2009) (Stevens, J., concurring). 306. 307. INS v. Aguirre-Aguirre that fill a gap left by Congress, but that the question at hand was “much that fill a gap left by Congress, but narrower”). 1984). clear. In 566Congress. left by gap an implicit not filled had NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 64 28-OCT-14 9:36 ters is the principle. . . . Statutory language may . . . admit of both ters is the principle. . . . Statutory exposition.” judicial construction and agency not be an all-or-nothing venture,” because a Court may determine not be an all-or-nothing venture,” petent than the BIA to perform pure statutory interpretation and interpretation perform pure statutory the BIA to petent than when expertise its immigration-specific did not rely on the BIA probability.” Alternatively, fear” with “clear “well-founded equating in tation of “serious nonpolitical crime,” concluding that the “judici- nonpolitical crime,” concluding tation of “serious responsibility” for positioned to shoulder primary ary [was] not well because such crimes committed abroad political deeming certain might affect foreign relations. determinations the distinction between “pure questions of statutory interpretation the distinction between “pure questions legal issues and interstitial ques- and policymaking” and “central tions.” guished between provision was susceptible to the application of the BIA’s expertise to the application of the provision was susceptible applied its exper- foreign affairs, and the BIA because it implicated crime[s]” test for identifying “serious nonpolitical tise to fashion a against its “com- “political aspect of the offense” that balanced the mon-law character.” tion of whether the two standards were identical was a “pure ques- a “pure was identical were two standards the of whether tion to decide.” for the courts construction tion of statutory a sensible application of a sensible that in visions were not identical—aquestion of statutory interpreta- pure tion—whereas in nonpolitical crime” to specific application of a definition of “serious facts. 35568-nys_69-2 Sheet No. 109 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 109 35568-nys_69-2 35568-nys_69-2 Sheet No. 110 Side A 10/28/2014 12:36:12 315 juris- Chevron Chevron Mead deference is cer- deference But it is less clear But it is 310 —and prior practice 312 Chevron Finally, the test proposed 309 314 .”) (emphasis added). Additionally, the more nuanced ap- Additionally, the more nuanced was not intended to revolutionize ad- was not intended 313 308 substantive policy Step Zero Provides the Best Solution Step Zero Provides Chevron note 44, at 188 (“Justice Stevens . . . had no broad ambi- note 44, at 188 (“Justice Stevens . . . had functions as a bright-line rule). in the absence of the application of agency in the absence supra notes 10–12 (explaining that the Court has rejected Scalia’s Part III.B. Part III.A. Part II.A. Part I.A (discussing problems that arise from inconsistent appli- Part I.A (discussing problems that arise Chevron ]; the Court did not mean to do anything dramatic.”). ]; the Court did not mean to do anything notes 336, 341, 361, 370. , Sandoval v. Reno, 166 F.3d 225, 239 (3d Cir. 1999) (“ , Sandoval v. Reno, 166 F.3d 225, 239 Chevron C. 311 Chevron Chevron Id. See supra See, e.g. See supra See supra See supra See supra See infra to all ambiguous statutory provisions. However, this should statutory provisions. However, to all ambiguous 316 This recognition calls for a distinction between the different a distinction calls for This recognition One concern with the proposed approach is that it places the proposed approach is One concern with 308. 309. 310. 311. 312. Sunstein, 313. 314. 315. 316. appears to speak to statutory interpretation in those instances where Congress del- appears to speak to statutory interpretation egated rule-making power to an agency and thereby sought to rely on agency ex- egated rule-making power to an agency pertise in the formulation of prudence, which undercuts Justice Scalia’s position that prudence, which undercuts Justice rule. ought to function as a bright-line this Note only seeks to clearly Rather than inventing a new test, of appeals have adopted in tack- organize the principles that courts questions arising from the ling more than a dozen interpretive INA. 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE of application specific the leaving while of a statute meaning the to the agency. statute that 567 BIA answers. questions that the types of \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 65 28-OCT-14 9:36 cation of immigration law). tions for [ proposal that by this Note should not be viewed as novel, as it stems from the by this Note should not be viewed appeals have already taken when approach that some courts of that do not entail expertise. faced with BIA interpretations proach favored by this Note comports with the Court’s proach favored by this Note comports greater discretion in courts’ hands than does a broad application of in courts’ hands than does a broad greater discretion Chevron not concern courts. ministrative law—even if it has in practice tainly appropriate for interpretations of provisions that establish provisions that of for interpretations tainly appropriate on expert reasoning. policies based substantive deny deference courts discretion to grant or appropriately gave based on agency expertise. that deference yields any benefits or accords with the rationales un- with the rationales benefits or accords yields any that deference derlying expertise. 35568-nys_69-2 Sheet No. 110 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 110 35568-nys_69-2 35568-nys_69-2 Sheet No. 110 Side B 10/28/2014 12:36:12 should Chevron step two by taking a more ro- step two by taking Chevron However, resolving the interpretation of the However, resolving 318 is the appropriate judicial tool, not whether the is the appropriate judicial tool, Part I.C. The advantage of such an approach is that it does of such an approach is that it The advantage , Holder v. Martinez Gutierrez, 132 S. Ct. 2011, 2017 (2012) (ex- deference to a correct BIA interpretation if it is the deference to a correct BIA interpretation 317 Chevron See, e.g. See supra Chevron As an alternative to the proposed test, courts might resolve the to the proposed test, courts might As an alternative A second concern with the approach favored by this Note is Note by this favored approach the with concern A second 317. 318. plaining that the BIA’s position “prevails if it is a reasonable construction of the plaining that the BIA’s position “prevails if it is a reasonable construction of statute, whether or not it is the only possible interpretation or even the one a court might think best”). help align the circuits and bring about greater uniformity. Further- uniformity. bring about greater the circuits and help align currently of uniformity I, a staggering lack argued in Part more, as that even an incremental such immigration administration, exists in current state of af- would improve upon the increase in uniformity would allow case that only statutory amendment fairs. It may be the in interpretation to approach true uniformity courts and the BIA of the INA. and application the INA at interpretation of interpretation is determining whether the BIA’s bust approach to reasonable. 568 NYU of uniformity the goal discretion, greater courts by allowing that ANNUAL SURVEY OF courts the analysis that clarifying undermined. However, will be AMERICAN LAW to apply deciding whether when should undertake [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 66 28-OCT-14 9:36 not undercut the BIA’s authority to interpret the INA, but instead BIA’s authority to interpret the not undercut the results in remand. for the same reason. First, remand- INA at step two raises problems will create further delay in ing unreasonable BIA interpretations cases. The goal of judicial the process of adjudicating immigration not be to force the BIA to re- review of BIA interpretations should intent or to proffer its own peatedly hazard a guess at legislative to the immigration context. In- application of the criminal code make an interpretation, then it is stead, if courts are better suited to the issue rather than remanding more efficient for courts to resolve the same token, courts should not to the BIA for a second guess. By grant that interpretation. Second, the responsibility of the court to make entrust the BIA with too much step two approach may erroneously a principal question that arises for power. As this Note has argued, in the INA is not whether courts in interpreting many provisions interpretation but whether the text is susceptible to a particular for interpreting that text. courts or the BIA bear the responsibility by an inquiry that asks This question is most directly addressed whether the statute. BIA has reasonably interpreted 35568-nys_69-2 Sheet No. 110 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 110 35568-nys_69-2 35568-nys_69-2 Sheet No. 111 Side A 10/28/2014 12:36:12 Chevron Yet, in many instances, 320 INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“A INS v. Aguirre-Aguirre, 526 U.S. 415, 425 D. at Stake Provisions INA note 243, at 666–67 is not clear . . . that foreign affairs (“It It is also clear that the implications of interna- It is also clear that the implications See 319 supra 1. Implicating Foreign Policy Provisions Negusie v. Holder, 555 U.S. 511, 517 (2009) (“Judicial deference in Negusie v. Holder, 555 U.S. 511, 517 (2009) See The BIA does, in theory, possess one significant advantage over theory, possess one significant advantage The BIA does, in The BIA should receive deference for its interpretations of its interpretations deference for should receive The BIA 319. 320. Bradley, the immigration context is of special importance, for executive officials exercise the immigration context is of special importance, implicate questions of foreign relations. especially sensitive political functions that an alien who has participated in persecu- The Attorney General’s decision to bar native] country or its neighbors. The tion may affect our relations with [the alien’s primary responsibility for assessing the judiciary is not well positioned to shoulder repercussions.”) (internal citations likelihood and importance of such diplomatic and quotations omitted). law can be neatly divorced from foreign affairs policy. Interpretation of foreign law can be neatly divorced from foreign international conditions and relation- affairs law may require assessments of recognize international norms outside ships.”). Judgments in the asylum context the province of courts. the courts: As a politically accountable executive agency, the BIA is politically accountable executive the courts: As a with potential repercussions for better positioned to make decisions foreign relations. 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE 569 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 67 28-OCT-14 9:36 the presumption of a politically accountable BIA may be strictly a the presumption of a politically BIA operates independently of the legal fiction, as by regulation the tional relations demand policymaking responses requiring exper- tional relations demand policymaking courts. tise outside the province of the some types of INA provisions, but not all. The types of INA provi- The types of but not all. of INA provisions, some types cate- into three rough may be broken the BIA interprets sions that should receive does and the BIA generally gories. First, Second, foreign policy. that implicate for provisions deference to BIA interpre- but nevertheless should not, defer courts often do, as effective date provisions in the INA, such tations of procedural widely disagree of limitations. Third, courts provisions and statutes domestically and to INA provisions that apply on whether to defer should not de- law. In many cases, courts draw on non-immigration bring any expertise because the BIA does not fer to these provisions at stake. to bear on the issues decision by the Attorney General to deem certain violent offenses committed in decision by the Attorney General to deem to allow the perpetrators to remain in another country as political in nature, and with that country or its neighbors. The the United States, may affect our relations primary responsibility for assessing the judiciary is not well positioned to shoulder likelihood and importance of such diplomatic repercussions.”); Matter of McMul- len, 19 I. & N. Dec. 90, 90 (BIA 1984) (“The statutory exclusion from the defini- of tion of ‘refugee’ of those persons who have participated in the persecution others represents the view of the Congress that such persons are unworthy and undeserving of international protection.”). 35568-nys_69-2 Sheet No. 111 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 111 35568-nys_69-2 35568-nys_69-2 Sheet No. 111 Side B 10/28/2014 12:36:12 Cardoza- But as a But 321 deference to BIA , 99 F.3d at 561 (internal quo- Chevron Courts have framed this ar- note 161, at 1088 (“Lower courts 325 Bamidele supra Third, the BIA’s familiarity with Third, the BIA’s 323 , 19 I. & N. Dec. at 97–98 (“Whether crimes A politically accountable agency may accountable A politically , the court spoke directly to the relative compe- 322 Farbenblum, 2. Provisions Procedural Bamidele note 243, at 701 (“The Supreme Court has stated in a note 243, at 701 (“The Supreme Court but see supra Matter of McMullen Part II.C.3. , , Sandoval v. Reno, 166 F.3d 225, 239–40 (3d Cir. 1999) (denying In these situations, courts properly defer to BIA courts properly defer In these situations, See, e.g. See supra See, e.g. 324 when interpreting statutes that incorporate international treaties.”). when interpreting statutes that incorporate One strand of opinions has denied One strand of opinions Foreign policy expertise comes into play in three contexts. comes into play policy expertise Foreign 324. 321. 322. if “[t]here are serious reasons for A noncitizen is not eligible for asylum 323. Bradley, 325. believing that the alien has committed a serious nonpolitical crime outside the believing that the alien has committed alien in the United States,” 8 U.S.C. United States prior to the arrival of the § assisted, or otherwise 1158(b)(2)(A)(iii) (2012), or if the alien ordered, incited, on account of race, religion, nation- participated in the persecution of any person group, or political opinion.” 8 U.S.C. ality, membership in a particular social § 1158(b)(2)(A)(i) (2010). weight’ to the executive branch’s interpre- number of decisions that it gives ‘great tation of treaties.”); interpretations of particular procedural provisions in the INA that interpretations of particular procedural do not implicate the BIA’s expertise. question of fact. In evaluating the political are of a political character is primarily a that the political aspect of the offense nature of a crime, we consider it important would not be the case if the crime is outweigh its common-law character. This objective or if it involves acts of an atro- grossly out of proportion to the political cious nature.”) (internal citations omitted). date of a statute); Bamidele v. INS, deference to BIA interpretation of the effective deference to BIA interpretation of a 99 F.3d 557, 561 (3d Cir. 1996) (denying statute of limitations). In 570 superior. accountable politically its General, Attorney NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 68 28-OCT-14 9:36 be better suited to interpret foreign law than a court, since a court than a court, since foreign law suited to interpret be better the BIA may be in reading foreign law. Second, has no advantage relevant to to interpret the terms of treaties better positioned law. United States immigration interpretations. should be applying the same canons of statutory construction identified in should be applying the same canons of statutory Fonseca a tence of the BIA and courts, explaining that “[a] statute of limitations is not matter within the particular expertise of the INS,” but instead “a clearly legal issue that courts are better equipped to handle.” matter of administrative law, this principle that courts defer to the defer courts that this principle law, of administrative matter is well settled. policy matters branches on foreign political committed offenses the INA to predicate BIA must apply First, the the United States. outside the facts of political situations outside the borders of the United situations outside the borders the facts of political about asylum BIA to make informed judgments States enables the claims. tations omitted). 35568-nys_69-2 Sheet No. 111 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 111 35568-nys_69-2 35568-nys_69-2 Sheet No. 112 Side A 10/28/2014 12:36:12 , 86 supra Fatin v. Matasar, 327 Berry, with Compare , 68 F.3d 1540 (3d Cir. 1995) from these cases in which from these cases deference.”). Chevron Bamidele Procedural Common Law, Federal Jurisdictional Yang v. Maugans pointing to the agency’s relevant expertise. pointing to the , 166 F.3d at 239–40 (“An issue concerning a statute’s note 168, at 584 (arguing that agencies should not re- note 168, at 584 (arguing that agencies 329 The court cited other cases where the BIA had The court cited Butros v. INS, 990 F.2d 1142, 1144 (9th Cir. 1993) (finding supra 328 deference). See Sandoval , the Third Circuit declined deference to the BIA’s , the Third Circuit . , , 997 F.2d 1067, 1068 (3d Cir. 1993) (interpreting “lawfully admit- . 1291, 1356 (1986) (“[P]rocedural common lawmaking envisions . 1291, 1356 (1986) (“[P]rocedural common Berry, EV Katsis Chevron See, e.g. A better argument might be that the agency’s lack of ex- lack of be that the agency’s argument might A better See . L. R 326 Courts have drawn an important distinction between substan- distinction drawn an important Courts have note 326 (explaining that “[a]rguments that the Court’s procedural com- note 326 (explaining that “[a]rguments 327. 328. 99 F.3d at 561–62. 329. The cases cited were 326. Katsis v. INS , 12 F.3d 1233 (3d Cir. 1993) (interpreting “clear probability of persecution”), , 12 F.3d 1233 (3d Cir. 1993) (interpreting OLUM note 168, at 579 (“When formulating procedural laws, Congress recognizes [judi- note 168, at 579 (“When formulating procedural ted for permanent residence”). The Fifth Circuit split with the Third Circuit over the issue in the interpretation of “lawful permanent resident” a “purely legal question” not the interpretation of “lawful permanent resident” a “purely legal question” entitled to jurisdictional decisions as an evolutionary dialogue between the Court and Con- jurisdictional decisions as an evolutionary and frees a Congress, otherwise occupied gress: the Court fills gaps in enacted law jurisdictional fine tuning.”). by matters of substance, from constant INS and (granting deference to BIA interpretation of the burden of proving entry), (granting deference to BIA interpretation supra intent are based on a simplistic notion of mon law derogates from congressional and that in reality jurisdictional decisions how jurisdictional decisions are made” and the courts), are the product of a dialogue between Congress effective date is not one that implicates agency expertise in a meaningful way, and effective date is not one that implicates does not, therefore, appear to require of courts to interpret these laws and make cial] expertise and trusts the judgment necessary procedural decisions.”). ceive deference for interpretations of procedural provisions because “courts, ceive deference for interpretations of interpreters of procedural provi- rather than agencies, should be the primary frequently interpret procedural provisions sions.”). Also noteworthy, federal courts in other statutes. Richard A. Matasar, and Independent State Grounds Doctrine Policy, and Abandonment of the Adequate C 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE courts possess Because expertise: comparative of in terms gument pro- ambiguous involving questions to answer competence greater 571 statute de interpret the court should provisions, a reviewing cedural novo. this principle. In interpretations that illustrate tive and procedural Bamidele v. INS contained in the five-year statute of limitations interpretation of 8 U.S.C. § 1256. \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 69 28-OCT-14 9:36 received deference, distinguished The Third Circuit pertise to answer the question serves as evidence that Congress did that Congress serves as evidence answer the question pertise to to the agency. authority to delegate interpretive not intend courts appropriately granted deference on two grounds. First, these granted deference on two grounds. courts appropriately their complexity,” with issues “labyrinthine in other cases all dealt provide the court familiarity with the INA could such that the BIA’s 35568-nys_69-2 Sheet No. 112 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 112 35568-nys_69-2 35568-nys_69-2 Sheet No. 112 Side B 10/28/2014 12:36:12 The 332 deference abrogated by Asika v. Ashcroft, Chevron , 560 F.3d 833, 837 with inappropriate for review 334 Kim v. Holder Chevron In contrast, the statute of limi- the statute of In contrast, 331 deference.”) “evoke[d] none of th[ose] considera- none of th[ose] “evoke[d] rendering it ambiguous, the courts were rendering it ambiguous, court’s reasoning. Chevron 333 Second, two of the three cases involved the involved three cases of the two Second, Bamidele 330 at 557 (denying deference to BIA interpretation of § at 557 (denying deference to BIA interpretation 1256), Bamidele , 166 F.3d at 239 (“An issue concerning a statute’s effective date , 99 F.3d at 562 (“Each of these cases concerned matters labyrin- , 99 F.3d at 562 (“Each of these cases concerned , Bejjani v. INS, 271 F.3d 670, 679 (6th Cir. 2001), , Bejjani v. INS, 271 F.3d 670, 679 (6th does not apply to effective date provisions in the to effective date provisions in does not apply Alhuay v. Atty. Gen., 661 F.3d 534, 545 (11th Cir. 2011) (finding Alhuay v. Atty. Gen., 661 F.3d 534, 545 and expressing skepticism that Congress would dele- skepticism that Congress would and expressing 336 at 561. at 562 (“Moreover, the latter two cases addressed terminology which at 562 (“Moreover, the latter two cases court took a strong position against deference, finding against deference, a strong position court took Bamidele Id. Id. Id. Compare id. Sandoval See, e.g. See also In addition to relying on courts’ comparative expertise in relying on courts’ comparative expertise In addition to inappropriate for review of statutes of limitations). Chevron 335 Courts have also denied deference to the BIA’s interpretations Courts have also 330. 331. 332. 333. 334. 336. 335. Garcia v. Att’y Gen., 553 F.3d 724, 727 (3d Cir. 2009) (denying deference to Garcia v. Att’y Gen., 553 F.3d 724, 727 INA. of other procedural provisions of the INA. Courts have been clear provisions of the INA. Courts of other procedural that 572 guidance. valuable NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 70 28-OCT-14 9:36 nonetheless the appropriate interpreter. Not all circuits have appropriate interpreter. Not nonetheless the agreed with the procedure interpretation of substantive provisions of the INA that bore some bore INA that of the provisions of substantive interpretation relation to immigration. “unique” thine in their complexity in which our analysis would be bolstered by our reliance thine in their complexity in which our analysis on the expertise of the INS.”). 362 F.3d 264, 265 (4th Cir. 2004) (granting deference to BIA interpretation of 362 F.3d 264, 265 (4th Cir. 2004) (granting § 1256). tations at issue in tations at Bamidele guidance” on the “Congress has given us little that even though statute, meaning of the took on unique import and meaning informed by the INS’s interpretation of its took on unique import and meaning informed governing statute.”). and BIA interpretation of § 1256 after 1996 amendment to INA), § 1256 unambiguous and dismissing the appeal); 30, 126 (2006) (finding Fernandez-Vargas v. Gonzales, 548 U.S. provisions inappropriate); Sandoval v. to BIA interpretations of effective date (finding Reno, 166 F.3d 225, 239 (3d Cir. 1999) v. Greene, 190 F.3d 1135, 1148 (10th of statutes of limitations); Jurado-Gutierrez reach does not involve any special Cir. 1999) (“Determining the statute’s temporal the question of whether AEDPA §agency expertise. Rather, we consider 440(d) of statutory construction for the courts applies retroactively to be a ‘pure question to decide.’”); question Mayers v. INS, 175 F.3d 1289, 1302 (11th Cir. 1999) (“The to be a pure question of law for of a statute’s effective date is generally considered courts to decide.”); Goncalves v. Reno, 144 F.3d 110, 127 (1st Cir. 1998) (finding Chevron tions,” as it was “a general legal concept with which the judiciary with which the legal concept it was “a general tions,” as executive agency.” as can an at least as competently can deal is not one that implicates agency expertise in a meaningful way, and does not, therefore, appear to require (8th Cir.2009) (finding § deferring to the Attor- 1256 relatively unambiguous and ney General’s interpretation of provision). 35568-nys_69-2 Sheet No. 112 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 112 35568-nys_69-2 35568-nys_69-2 Sheet No. 113 Side A 10/28/2014 12:36:12 337 340 Acosta- in the and 339 , 18 I. & N. deference). Katsis v. INS, While pro- , 533 U.S. 289 341 and 338 Chevron ), Vargas v. INS, 938 Matter of Lok INS v. St. Cyr Chevron deference to BIA interpreta- are present here. When Congress deference because “[t]he BIA did Chevron Chevron Chevron Henry v. INS, 8 F.3d 426, 439 (7th Cir. 1993) Henry v. INS, 8 F.3d 426, 439 (7th Cir. with , 18 I. & N. Dec. at 105. , 144 F.3d at 127 (“We think it is a significant question whether , 144 F.3d at 127 (“We Nwolise v. INS, 4 F.3d 306, 311 (4th Cir. 1993) (granting defer- Nwolise v. INS, 4 F.3d 306, 311 (4th Cir. , 271 F.3d at 679 (finding Compare Bejjani Goncalves Matter of Lok In the 1990s, circuits split over whether to defer to the BIA’s to defer to the over whether circuits split In the 1990s, 339. 338. 337. 341. 340. 8 U.S.C. §admitted for perma- 1101(a)(20) (2012) (“The term ‘lawfully (2001), in which the Court applied the anti-retroactivity canon and the immigra- (2001), in which the Court applied the INA provision). tion rule of lenity to resolve an ambiguous not having changed”), ence to the BIA interpretation of “status wants an agency to determine whether to apply new rules, it usually delegates that wants an agency to determine whether discretion expressly.”). tions of effective date provisions inappropriate after tions of effective date provisions inappropriate the determination of the application of the effective date of a governing statute is the application of the effective date of the determination of to decide and thus which Congress intended the agency the sort of policy matter whether the doctrinal underpinnings of 997 F.2d 1067, 1069–70 (3d Cir. 1993) (finding an implicit delegation and defer- ring to BIA interpretation), 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE implicitly, provisions procedural over authority interpretive gate canon. to the anti-retroactivity pointed have courts 573 having changed” “status not of the phrase interpretation deter- status changed when a noncitizen’s cases, the time In those for to reopen a petition could move that noncitizen mined whether that “the of removal. The BIA concluded discretionary withholding to end with the resident status of an alien [came] lawful permanent order of deportation.” entry of a final administrative \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 71 28-OCT-14 9:36 (finding the BIA’s rule unreasonable at step two), Butros v. INS, 990 F.2d 1142, (finding the BIA’s rule unreasonable at the issue a “purely legal question” and 1144 (9th Cir. 1993) (en banc) (finding mentioning rejecting the BIA interpretation without INA’s definition of “lawfully admitted for permanent residence.” admitted for of “lawfully INA’s definition cedural in the sense that it effectively set a final date when a nonci- that it effectively set a final cedural in the sense implicated policy to reopen, the BIA’s rule also tizen could move against equita- balancing interests in finality considerations, namely F.2d 358, 363 (2d Cir. 1991) (denying not present its decision as an interpretation of statutory provisions”), not present its decision as an interpretation Dec. 101, 101 (BIA 1981), the BIA held that “[t]he lawful permanent resident Dec. 101, 101 (BIA 1981), the BIA held entry of a final administrative order of status of an alien terminates . . . with the its decision in the case upon appeal or deportation, i.e., when the Board renders Board is taken, when appeal is waived or certification or, where no appeal to the the the time allotted for appeal has expired.” The courts of appeals examined question of when a noncitizen’s “lawfully admitted for permanent residence” status for terminated in order to determine whether that noncitizen remained eligible 212(c) relief. Montero v. INS, 62 F.3d 1347, 1351 (11th Cir. 1995) (denying Montero v. INS, 62 F.3d 1347, 1351 (11th nent residence’ means the status of having been lawfully accorded the privilege of nent residence’ means the status of having as an immigrant in accordance with the residing permanently in the United States changed.”). In immigration laws, such status not having 35568-nys_69-2 Sheet No. 113 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 113 35568-nys_69-2 35568-nys_69-2 Sheet No. 113 Side B 10/28/2014 12:36:12 Yet, 349 .” and that the and that As the Third 344 348 appears to speak to appears to speak was viewed as entirely deference, however, ar- deference, substantive policy Interpretations of procedu- Interpretations Chevron Chevron 347 , “ Chevron to interpretations of substantive provisions but not to interpretations of substantive provisions , 62 F.3d at 1351 (asserting that “[w]e must hold the , 62 F.3d at 1351 (asserting that “[w]e Sandoval v. Reno note 168, at 587 (“The interpretation of procedural provi- Chevron Accepting the BIA’s interpretation as reasonable interpretation BIA’s the Accepting , 18 I. & N. Dec. at 106 (“We find the proposition that an alien , 18 I. & N. Dec. at 106 (“We find the proposition And in another case, And in another 346 342 , the Third Circuit concluded that an “unambiguous that an concluded Third Circuit , the supra , 997 F.2d at 1073. The BIA also sought to avoid what it viewed as , 997 F.2d at 1073. The BIA also sought to reopen contemplates , 8 F.3d at 438 (“Simply because a motion 345 Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 836, Chevron U.S.A., Inc. v. Natural Res. Def. Butros v. INS, 990 F.2d 1142, 1144 (9th Cir. 1993) (en banc) (“Inter- Butros v. INS, 990 F.2d 1142, 1144 (9th The circuits that denied that denied The circuits See Acosta-Montero Katsis Henry See See 343 Chevron Matter of Lok Courts should view deference’s purpose in such cases as the deference’s purpose in such Courts should view 344. 343. 345. 346. 347. 348. Berry, 349. Sandoval v. Reno, 166 F.3d 225, 239 (3d Cir. 1999) (emphasis added). 342. highlights the difficulty of draw- The difficulty of drawing this distinction have a duty to respect legitimate policy choices made by those who do.”). under a final order of deportation may remain a lawful permanent resident inher- under a final order of deportation may ently incongruous.”). gued that the BIA’s interpretation was inconsistent with a procedu- with was inconsistent the BIA’s interpretation gued that General by the Attorney promulgated ral regulation to interpretations of procedural provisions. would rise if noncitizens who had re- an internal inconsistency in the INA that remained lawful permanent re- ceived a final order of deportation nonetheless sidents. and denying deference). Board to the regulations the INS has adopted” does not make it ‘a different application’ the consideration of additional evidence factual record.’”).that must be ‘adjudicated on a different having changed’, found in the definition pretation of the language ‘such status not purely legal question.”). of lawful permanent residence . . . is a construction of a statutory provision, 866 (1984) (“When a challenge to an agency the wisdom of the agency’s policy, rather fairly conceptualized, really centers on within a gap left open by Congress, the than whether it is a reasonable choice judges—whochallenge must fail. In such a case, federal have no constituency— sions should not be considered policymaking because it generally does not involve reconciling conflicting policies.”). ing a distinction between substance and procedure. This is one downside to an ing a distinction between substance and approach that applies irrelevant because the issue was a pure question of statutory the issue was a pure question irrelevant because interpretation. delegation of authority to agencies to make general substantive pol- to agencies to make general delegation of authority left by Congress. icy in statutory gaps 574ble principles. NYUunder ANNUAL SURVEY OF by its prolonged litigation unnecessary and discourages cut-off date AMERICAN LAW of stale adjudication finality, and avoids promotes very clarity, [Vol. 69:503 claims.” \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 72 28-OCT-14 9:36 ral provisions do not tend to involve policymaking. ral provisions do statutory interpretation in those instances where Congress dele- in those instances where statutory interpretation sought to rely power to an agency and thereby gated rule-making of on agency expertise in the formulation BIA unreasonably viewed motions to reopen as akin to completely viewed motions to reopen as BIA unreasonably new actions. in Circuit observed 35568-nys_69-2 Sheet No. 113 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 113 35568-nys_69-2 35568-nys_69-2 Sheet No. 114 Side A 10/28/2014 12:36:12 , In 354 353 Id. Drakes : The courts 352 , Judge Posner at 476. Skidmore In the case of Id. 350 deference for ques- Mei v. Ashcroft ] were not present in deference. predicate offenses, for “burglary” Chevron Chevron Drakes Aguirre-Aguirre and Patel 3. Policy: Gap-Filling Domestic , 669 F.3d 472 (4th Cir. 2012), the court held that “the moral , 669 F.3d 472 (4th Cir. 2012), the court , Patel v. Ashcroft, 294 F.3d 465, 468 (3d Cir. 2002) (“Those [for- , Patel v. Ashcroft, 294 F.3d 465, 468 (3d Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the See, e.g. See and “single scheme of criminal misconduct,” and “single scheme functions to insulate the BIA and the Attorney General functions to insulate the BIA 351 Although the appropriateness of Although the appropriateness the term “forgery” In one clear-cut case, the BIA interpreted 350. 351. 8 U.S.C. § 1227(a)(2)(A)(i)(I) (2012). In 352. 8 U.S.C. § (2012). 1227(a)(2)(A)(ii) 353. 354. 8 U.S.C. § (2012) (stating that “an offense relating to . . . 1101(a)(43)(R) and they are absent here.”). In and “forgery” respectively, were at stake. observes that the term “moral turpitude” bears the same meaning in immigration observes that the term “moral turpitude” the parties limited their briefing to law as in the criminal law, but that nonetheless 740 (7th Cir. 2004). Although Posner con- the immigration context. 393 F.3d 737, whether the BIA’s determination that “ag- cludes that the court need not decide he does go on to describe “the gravated fleeing” is a crime of moral turpitude, by reasoning through analogy. natural way” to perform the interpretation in 8 U.S.C. § to include conviction for forgery 1101(a)(43)(R) eign policy] considerations [cited in These provisions closely resemble legal language existing in crimi- closely resemble legal language These provisions courts to interpret. In these cases, nal statutes that are entrusted to Chevron of the Court’s jurisprudence from judicial review. A better reading to defer to the BIA only in cases on deference would require courts expertise to interpret the where the BIA exercised its particular INA. 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE dif- the highlights changed” not having “status of the interpretation pro- procedural between when distinguishing arise that may ficulty 575 of the application provisions requiring substantive visions and the opin- in these cases, as solution An intermediate agency policy. suggest, is implicitly the courts of appeals ions of BIA had that the BIA were all persuaded deferred to the courts that ability to noncitizens’ decision in limiting effective policy made an for withholding of removal. reopen petitions \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 73 28-OCT-14 9:36 Prudencio v. Holder ambiguous and do not contain any gap turpitude provisions of the INA are not requiring agency clarification” and denied tions with foreign policy implications is well established, many pro- policy implications is well established, tions with foreign do not implicate foreign policy. visions in the INA seem more competent “to say what the law is” than the BIA. “to say what the law is” seem more competent many ambiguous provisions, such as “crime involving moral turpi- provisions, such as “crime involving many ambiguous tude” province and duty of the judicial department to say what the law is.”). an forgery . . . for which the term of imprisonment is at least one year” qualifies as “aggravated felony”). 35568-nys_69-2 Sheet No. 114 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 114 35568-nys_69-2 35568-nys_69-2 Sheet No. 114 Side B 10/28/2014 12:36:12 , his Prudencio a fortiori deference.”), and Chevron The court proceeded to The court 356 As an afterthought, the court re- As an afterthought, 357 The Third Circuit recognized that the recognized Third Circuit The 358 355 , 240 F.3d at 250–51(“[N]ot only did the BIA not, at least Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1310 (11th Cir. Mei v. Ashcroft, 393 F.3d 737, 739 (7th Cir. 2004) (“The courts Mei v. Ashcroft, 393 F.3d 737, 739 (7th and Drakes on the grounds that the BIA had no expertise in that the BIA had no expertise on the grounds , was not an authorized exercise of the Attorney General’s authority .”), at 249. (“Where federal criminal statutes use words of established at 249. (“Where federal criminal statutes at 248. Taylor v. United States, 495 U.S. 575, 588 (1990). Taylor v. United States, 495 U.S. 575, 588 Courts have also split on granting deference to the BIA’s split on granting deference to Courts have also Id. Id. See, e.g. Compare See Chevron 359 Chevron In another example, courts have split on granting deference to courts have split on granting In another example, 355. BIA did not, at 240 F.3d 246, 250 (3d Cir. 2001) (“The Drakes v. Zimski, 356. 357. 358. 359. Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (9th Cir. 2009) (en banc) Marmolejo-Campos v. Holder, 558 F.3d Silva–Trevino least explicitly, engage in the exercise in which we have engaged to determine the in the exercise in which we have engaged least explicitly, engage for purposes of §meaning of forgery simply 1101(a)(43)(R). Rather, the BIA “relating to” forgery, (2) Drakes was found that (1) the section covers offenses convicted of forgery under § Code, (3) 861 of the Delaware Criminal offense was an offense relating to forgery under the Act.”). offense was an offense relating to forgery typically give those terms their com- meaning without further elaboration, courts common law yields several competing defi- mon law definition. If research into the the reading that best accords with the nitions, however, courts should look to is the minority view. Where the traditional overall purposes of the statute even if it meaning of a term, more generic, con- definition is out of step with the modern temporary definitions—such as those found in state statutes—may apply. Further- a law may prevail over this rule of more, Congress’ general purpose in enacting Supreme Court has set out the so-called statutory construction altogether.”). The predicate offenses that are considered in “categorical approach” for interpreting the INA. in reaching that determination, but explicitly, call upon any particular expertise as ‘forgery’ is what federal courts do all the defining under federal law a term such time.”). that the Board’s interpretation of the that have addressed the question . . . agree is entitled to meaning of ‘crime involving moral turpitude’ the BIA’s interpretation of the phrase “crime involving moral turpi- of the phrase “crime involving the BIA’s interpretation tude.” 576 law. state Delaware under NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 under \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 74 28-OCT-14 9:36 jected analyze the meaning of “forgery” across the federal corpus juris, the federal corpus “forgery” across the meaning of analyze criminal the federal but interpreting the term ambiguous finding meaning. law to give the term with to particularize” the meaning of “moral (concluding that the BIA has “fail[ed] definition, but noting that their turpitude” and applying their own generalized from the Board’s”), own understanding “does not differ materially v. Holder, 669 F.3d 472, 476 (4th Cir. 2012) (“Because we conclude that the moral gap turpitude provisions of the INA are not ambiguous and do not contain any requiring agency clarification, we hold that the procedural framework established in meaning of “forgery” for the purposes of § purposes for the “forgery” of meaning was not 1101(a)(43)(R) of a fed- “[t]he language because but of Congress, that of Delaware, by the meaning intended to have must be construed eral statute legislature.” not the Delaware Congress, interpreting federal criminal law whereas courts frequently inter- criminal law whereas courts interpreting federal law. preted federal criminal 35568-nys_69-2 Sheet No. 114 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 114 35568-nys_69-2 35568-nys_69-2 Sheet No. 115 Side A 10/28/2014 12:36:12 Knapik v. Ashcroft, whereas others do whereas others with 363 Smalley v. Ashcroft, 354 F.3d Yousefi v. INS, 260 F.3d 318, 326 Compare See also framework provides the appropriate method for framework provides the appropriate method deference.”). Some entries on the INA’s list of predicate Some entries on 362 Chevron whether the elements of a state or federal crime fit the whether the elements of a state or federal Chevron , Matter of G- G-, 7 I. & N. Dec. 161, 164 (BIA 1956) (“The term , Matter of G- G-, 7 I. & N. Dec. 161, 164 , 8 U.S.C. § (2012) (defining aggravated felonies 1101(a)(43)(B) de novo Prudencio v. Holder, 669 F.3d 472, 482 (4th Cir. 2012) (“[C]ourts Prudencio v. Holder, 669 F.3d 472, 482 , 393 F.3d at 739 (explaining that “the courts are divided over (explaining that “the courts are divided , 393 F.3d at 739 The existence of this longstanding judicial interpreta- judicial of this longstanding The existence 361 Mei See See, e.g. See, e.g. Courts’ unwillingness to defer stems in part from the fact from the in part stems to defer unwillingness Courts’ 360 The BIA often interprets statutory gaps by reference to federal statutory gaps by reference The BIA often interprets 360. 361. 362. 363. 2011) (“Congress unambiguously intended adjudicators to use the categorical and intended adjudicators to 2011) (“Congress unambiguously was convicted of a approach to determine whether a person modified categorical turpitude.”). crime involving moral as one involving moral decision to classify a particular crime whether the Board’s turpitude is entitled to such deference”). 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE turpi- moral as “involving” crime a particular classify to decision tude. 577 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 75 28-OCT-14 9:36 that the phrase “moral turpitude,” while on its face open-ended, turpitude,” while phrase “moral that the course of a over the meaning developed established has a judicially century. tion both provides evidence that Congress views courts as compe- views courts that Congress provides evidence tion both that Congress intended turpitude” and that “moral tent to interpret “moral turpitude.” courts interpret law. law or common 332, 335–36 2003) (“First, we accord ‘substantial deference to the BIA’s (5th Cir. of the phrase ‘moral turpitude.’ Sec- interpretation of the INA and its definition ond, we review citations omitted), BIA’s definition of a CIMT.”) (internal the majority position and conclude that 384 F.3d 84, 88 (3d Cir. 2004) (“We adopt crimes may involve moral tur- the BIA’s determination that reckless endangerment pitude is entitled to offenses expressly include parentheticals cross-referencing defini- include parentheticals cross-referencing offenses expressly elsewhere in federal statutes, tions contained (4th Cir. 2001) (“The analyzing the Board’s determination of what type of conduct involves moral turpi- analyzing the Board’s determination of v. INS, 72 F.3d 571, 578 (8th Cir. 1995) tude for purposes of the INA.”); Franklin split of authority). (Bennett, J., dissenting) (recognizing a [the] phrase [“crime involving moral tur- nevertheless have been able to interpret body of law has developed in this re- pitude”] for over a century, and a robust 462, 473 (3d Cir. 2009) (“The ambiguity gard.”); Jean-Louis v. Att’y Gen., 582 F.3d INA is an ambiguity of his own making, that the Attorney General perceives in the and certainly not grounded in the BIA’s not grounded in the text of the statute, courts of appeals going back for over a own rulings or the jurisprudence of century.”). and Nationality Act. We believe it should ‘fraud’ is not defined by the Immigration sense, that is, as consisting of false repre- be used in the commonly accepted legal knowledge of its falsity and with intent to sentations of a material fact made with must be believed and acted upon by deceive the other party. The representation the party deceived to his disadvantage.”). of to include “illicit trafficking in a controlled substance (as defined in section 802 Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)”). 35568-nys_69-2 Sheet No. 115 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 115 35568-nys_69-2 35568-nys_69-2 Sheet No. 115 Side B 10/28/2014 12:36:12 Id. In cases or else in- or else 369 Presumably, 366 However, this However, 370 365 would be inappropri- as the standard of review but Chevron Rodriguez-Rodriguez court went on to explain, “We believe it is court went on to explain, “We believe 368 , 617 F.3d at 798. Restrepo , 617 F.3d at 796 (“We conclude that the BIA’s defi- , 617 F.3d at 796 (“We conclude that the deference to In this situation, courts have split on whether In this situation, Restrepo the court cited 367 the provision at issue was “sexual abuse of a minor.” the provision at issue was “sexual abuse Chevron Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1157 (9th Cir. Estrada-Espinoza v. Mukasey, 546 F.3d Part III.D.2. with Restrepo at 208. , 8 U.S.C. § felonies 1101(a)(43)(A) (2012) (defining aggregated , Valansi v. Ashcroft, 278 F.3d 203, 209 (3d Cir. 2002) (stating the , Valansi v. Ashcroft, 278 F.3d 203, 209 (3d Valansi deference. Accordingly, we will define sexual abuse of a minor by deference. Accordingly, we will define Restrepo at 793. See id. See, e.g. Id. See, e.g. See supra Compare deference. Chevron The Third Circuit has observed that “[w]hen contrasted “[w]hen that has observed Circuit Third The It is telling that when deferring to BIA interpretations of provi- deferring to BIA interpretations It is telling that when 364 364. 365. 793 (3d Cir. 2010). Restrepo v. Att’y Gen., 617 F.3d 787, 366. In 367. 369. 370. 368. to include “murder, rape, or sexual abuse of a minor”). to include “murder, rape, or sexual abuse far more likely that Congress eschewed cross references for crimes identified only far more likely that Congress eschewed rape, sexual abuse of a minor, and theft by common parlance, such as murder, and cannot be clearly defined by a because these terms are not clearly defined simple cross-reference.” sions defined elsewhere in the federal corpus juris, courts find in the federal corpus sions defined elsewhere to what is reasonable by way of comparison these interpretations issue. own de novo judicial review of the essentially their 578not. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 one and that it is appropriate to nition of sexual abuse of a minor is a reasonable exercise reference to § 3509(a).”). The on to recite its own judicial definition of BIA’s definition of “fraud” and then going “fraud” based on precedent, the Restatement (Second) of Torts, and Black’s Law Dictionary). In neither directly applied it to the BIA’s definition of fraud nor rejected the BIA’s definition. \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 76 28-OCT-14 9:36 with the structure of the statute as a whole, [the] . . . omission [of a omission . . . whole, [the] as a the statute of the structure with that the understood for it is typically is instructive, parenthetical] language it inserts specific when proceeds purposefully legislature another.” but omits it in section in one statutory to grant deference to BIA interpretations importing definitions to BIA interpretations importing to grant deference statutes. from other federal 2008) (“According ate because the BIA did not construe the statute and provide a uniform definition ate because the BIA did not construe the in the decision.”) where the BIA draws directly on a particular federal statute or an directly on a particular federal where the BIA draws produce a defini- federal and state provisions to amalgamation of the competence it does not perform a task outside tion for a term, BIA frequently does not draw on of the courts. Furthermore, the fact, in many cases the BIA prima- any of its expertise in the INA. In federal statutes. rily analyzes a broad array of other federal courts are best positioned to interpret the relationship be- federal courts are best positioned system, whereas the BIA is tween multiple statutes in the federal tent that the BIA construe the statute independently and receive construe the statute independently tent that the BIA Chevron ambiguity could indicate either congressional intent that courts ap- intent that either congressional could indicate ambiguity offense of the predicate law definition ply a common 35568-nys_69-2 Sheet No. 115 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 115 35568-nys_69-2 35568-nys_69-2 Sheet No. 116 Side A 10/28/2014 12:36:12 Be- The 371 374 ). To resolve this per- The essential common 373 375 step one because Congress Denis v. Att’y Gen, 633 F.3d 201 (3d Espinoza-Gonzales with Chevron ) In that case, the BIA first found 372 . deference to framework is appropriate, courts should con- framework is appropriate, courts Espinoza-Gonzales Chevron Alwan v. Ashcroft, 388 F.3d 507, 514 (5th Cir. 2004) (granting Alwan v. Ashcroft, 388 F.3d 507, 514 (5th Courts Should Interpret that Phrase De Novo Courts Should Interpret at 893 (“Congress did not adopt a generic phrase such as ‘ob- Chevron at 892. at 891 (“The United States Code does not define the term ‘obstruc- at 891 (“The United States Code does Compare Id. See id. See id. deference to than the BIA to Interpret “Relating to Obstruction of Justice,” “Relating to Obstruction of than the BIA to Interpret Circuit courts are divided on the question of whether the BIA divided on the question of whether Circuit courts are The BIA promulgated its interpretation of §The BIA promulgated its interpretation 1101(a)(43)(S) 371. 372. 22 I. & N. Dec. 889 (BIA 1999). 373. 374. 375. E. Because Courts Possess Greater Competence Applying the Test: In re Espinoza-Gonzales 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE rea- the BIA’s Finally, itself. the INA interpret to positioned better to per- accountability demonstrate does not cases in these soning 579 BIA relies In fact, the of the Executive. policy objectives missible politi- that whatever intent, suggesting on congressional extensively restraint the same on the BIA is precisely is operating cal restraint with the agree if courts independently on courts. Even operating judicial in- and perform a should step up they BIA’s interpretation, than resolving provides judicial reasoning, rather terpretation that solely by de- core competencies of the judiciary an issue within the interpretation. ferring to an agency the phrase “relat- for its interpretation of should receive deference of justice” in 8 U.S.C. §ing to obstruction 1101(a)(43)(S). \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 77 28-OCT-14 9:36 § at 1101(a)(43)(S) ambiguous Chevron ceived ambiguity, the BIA looked to 18 U.S.C. §§ceived ambiguity, the BIA looked 1501–18, which of justice” offenses. enumerate federal criminal “obstruction cause this statutory provision implicates neither foreign policy nor cause this statutory provision implicates the face of the statute to deter- procedure, courts must look beyond BIA’s interpretation. To decide mine whether to defer to the whether the to the application of BIA sider whether the provision is susceptible on its immigration-specific ex- expertise and whether the BIA relied pertise to reach its interpretation. in elements in the enumerated federal offenses are “interference with elements in the enumerated federal BIA reasoned that Congress’ use of the term of art “obstruction of BIA reasoned that Congress’ use indicated an intent to import justice” in Section 1101(a)(43)(S) the INA. this list of criminal offenses into had not explicitly defined it in the statute. had not explicitly defined it in Cir. 2011) (denying tion of justice’ or ‘obstructing justice.’”). the structing justice’ or ‘obstruct justice,’ but chose instead a term of art utilized in United States Code to designate a specific list of crimes.”). 35568-nys_69-2 Sheet No. 116 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 116 35568-nys_69-2 35568-nys_69-2 Sheet No. 116 Side B 10/28/2014 12:36:12 378 and Chev- , the defer- 382 the court deference). question en- Chevron Alwan In Rentiera-Morales Chevron 384 Alwan v. Ashcroft In United States v. Aguilar 385 379 The BIA then construed the then construed The BIA Espinoza-Gonzales Chevron 377 decision. respectively, granted 383 From these common elements, the BIA de- the BIA common elements, From these 376 381 Espinoza-Gonzales rule should receive deference and apply “uni- rule should receive Espinoza-Gonzales, 22 I. & N. Dec. 889, 894 (BIA 1999). The Espinoza-Gonzales, 22 I. & N. Dec. 889, note 35. at 893. Higgins v. Holder, 677 F.3d 97, 103 (2d Cir. 2012) (observing that In response to this split, the BIA has reasserted that the split, the BIA has reasserted In response to this at 892. test plainly as whether the at 894. The BIA later characterized the Id. Id. See supra See See In re 380 See id. It remains unclear whether future reviewing courts should whether future reviewing It remains unclear in First, the Fifth and Ninth Circuits, 385. 388 F.3d at 510, 514. 376. 377. 380. 381. Matter of Valenzuela Gallardo, 25 I. & N. Dec. 838, 844 (BIA 2012). 382. 388 F.3d 507 (5th Cir. 2004). 383. 551 F.3d 1076 (9th Cir. 2008). 384. 378. 515 U.S. 593 (1995). 379. to the BIA’s interpretation of “relating to obstruction of interpretation of “relating to to the BIA’s the Fifth and Ninth Circuits have accorded tirely because reviewing courts have split on the application of courts have split on the application tirely because reviewing ron justice.” grant deference, deny deference, or avoid the grant deference, 580 or retaliate to harm “intent and a tribunal” of proceeding the NYU oth- or might of justice process in the who cooperate others against ANNUAL SURVEY OF cooperate.” erwise so AMERICAN LAW [Vol. 69:503 broadly stated “ob- that courts should interpret for the proposition offenses narrowly. struction of justice” \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 78 28-OCT-14 9:36 Espinoza-Gonzales formly nationwide.” rived the rule that for an offense to “relat[e] to obstruction of to obstruction an offense to “relat[e] rule that for rived the and “an affirmative must contain the crime of conviction justice” that the process of justice” interfere with attempt . . . to intentional intent.” by a specific was “motivated phrase “relating to” narrowly, relying on phrase “relating ence to the BIA’s offense in question “lacked the essential elements that were included in the fed- offense in question “lacked the essential in 18 U.S.C. §§eral obstruction of justice crimes enumerated 1501–1518.” Matter 176–177of Martinez-Recinos, 23 I. & N. Dec. 175, (BIA 2001). not an offense relating to the obstruction BIA held that misprision of a felony was active interference with the proceedings of of justice because it does not require as intent to interfere with the process of a tribunal or an active attempt with specific justice. court appeared to skip over finding ambiguity to conclude that court appeared to skip over finding merely because § was “part of” the INA, which the 1101(a)(43)(S) defer if the BIA acted reasona- BIA administers, the court must Rentiera-Morales v. Mukasey found § ambiguous and deferred to the BIA, sum- 1101(a)(43)(S) on the fact of ambiguity that the marily concluding based solely by Congress as a matter to interpretation had “not been designated courts.” be ultimately resolved by the 35568-nys_69-2 Sheet No. 116 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 116 35568-nys_69-2 35568-nys_69-2 Sheet No. 117 Side A 10/28/2014 12:36:12 392 Armenta-Lagunas 393 the Third Cir- 388 , see also question); the Second Circuit confronted the Second Circuit 390 , Chevron These decisions typify the mechanical, typify the These decisions provides the appropriate tool to review provides the appropriate tool Denis v. Attorney General Denis v. Attorney 387 However, because the conviction for wit- However, because 391 Chevron Higgins v. Holder at 104, 107 (adopting the BIA’s interpretation of Section at 209 (“the phrase ‘relating to obstruction of justice’ . . . includes at 209 (“the phrase ‘relating to obstruction at 1086 (“[T]he BIA acted reasonably in deriving the definition of at 1086 (“[T]he BIA acted reasonably in In Renteria-Morales v. Mukasey, 551 F.3d 1076, 1081 (9th Cir. 2008). Renteria-Morales v. Mukasey, 551 F.3d at 104. See See id. See id. Id. See id. See id. 389 question when interpreting Section 1101(a)(43)(S) because the state stat- The court then found that deriving the definition of “ob- the definition deriving that then found court The Neither the approach taken by the Fifth and Ninth Circuits nor Neither the approach taken by the Other courts have taken approaches that focus on the particu- taken approaches that focus on Other courts have 386. 387. 388. 633 F.3d 201 (3d Cir. 2011). 389. 390. 677 F.3d 97 (2d Cir. 2012). 391. 392. 393. 386 the approach taken by the Third Circuit is wholly satisfying. To de- the approach taken by the Third termine whether For the purposes of resolving that case, the Second Circuit applied For the purposes of resolving that the BIA decision. the BIA’s narrower test to uphold §‘obstruction of justice’ for purposes of from the body of federal 1101(a)(43)(S) obstruction-of-justice offenses.”). statutes imposing criminal penalties in two discrete phrases—’relating to’ and ‘obstruction of justice’—both of which are capable of definition”). 1101(a)(43)(S) without deciding the 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE bly. 581 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 79 28-OCT-14 9:36 the v. Holder, 724 F.3d. 1019, 1022 (8th Cir. 2013) (finding it unnecessary to reach Chevron ness tampering at issue qualified as a crime relating to obstruction ness tampering at issue qualified BIA test and the broader Third of justice under both the narrower to reach that question. Circuit test, the court was not required lockstep approach to deference favored by Justice Scalia. The Fifth by Justice Scalia. favored approach to deference lockstep as the and the BIA’s status on ambiguity Circuits focused and Ninth than generally, rather the statute to administer agency entrusted the that the BIA interpret intended whether Congress considering provision at issue. particular statutory issue. In lar provision at struction of justice” from the federal criminal statute was statute criminal the federal from justice” of struction and deferred. reasonable the BIA’s interpretation of an ambiguous provision, courts should the BIA’s interpretation of an ambiguous fact that the BIA administers the take into account not merely the BIA is more competent than a INA, but additionally whether the the Third Circuit’s split from the Ninth and Fifth Circuits and spe- split from the Ninth and Fifth the Third Circuit’s when the BIA’s deference was appropriate cifically asked whether of fed- “itself based on the agency’s construction interpretation was eral criminal statutes.” cuit found § because “relating to 1101(a)(43)(S) unambiguous definition because was capable of judicial obstruction of justice” “obstruction of construed “relating to” and courts had separately justice.” ute falls under the narrower BIA definition). 35568-nys_69-2 Sheet No. 117 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 117 35568-nys_69-2 35568-nys_69-2 Sheet No. 117 Side B 10/28/2014 12:36:12 the See also Thus, Aguirre- 399 Denis Patel v. Ashcroft, 294 F.3d 465, This approach acknowledges This approach court observed that the phrase See also 395 is based on the assumption that is based on the recommends such an approach, ac- such an approach, recommends , 269 F.3d 162, 168 (3d Cir. 2001)). Denis 394 Chevron domain of the agency’s special expertise in immigra- the agency’s special domain of Francis v. Reno , which the Fifth and Ninth Circuits relied on). First, “obstruction of justice” was definable by First, “obstruction of justice” Second, the , 633 F.3d at 210 (analyzing cases where courts had construed 396 398 Higgins v. Holder Higgins v. Denis v. Att’y Gen., 633 F.3d 201, 209 (“the phrase ‘relating to ob- Denis v. Att’y Gen., 633 F.3d 201, 209 (quoting at 108–09 added). (emphasis at 209 n.11 (explaining that the interpretation of “offense relating to Additionally, courts had previously independently con- Additionally, courts had previously Id. See Id. See Denis Id. , as long as it is reasonable.” , as long 397 , because it shared none of the same “especially sensitive po- , because it shared none of the same Aguirre-Aguirre The inquiry into the nature of the INA provision should focus the nature of the INA provision The inquiry into 394. 677 F.3d 97 (Katzmann, J., concurring). 395. 396. 397. 398. 399. 467 (3d Cir. 2002) (explaining that “legal issues that turn on a pure question of 467 (3d Cir. 2002) (explaining that “legal do not receive deference). law not implicating the agency’s expertise” phrases—’relatingstruction of justice’ . . . includes two discrete to’ and ‘obstruc- tion of justice’—both of which are capable of definition”). Mugalli v. Ashcroft, 258 F.3d 52, 56 (2d Cir. 2001) (holding that the BIA’s “analysis Mugalli v. Ashcroft, 258 F.3d 52, 56 (2d to deference because such subject mat- of a federal criminal statute” is not entitled responsibility and expertise”). ter is “beyond the BIA’s administrative reference to Title 18, an authority that was not immigration-specific reference to Title 18, an authority competence and congressional and was “outside the BIA’s special a part of th[e] Court’s compe- delegation, while . . . very much tence.” 582 applied BIA actually the and whether statute the to interpret court NYU con- Judge Katzmann’s interpretation. its in rendering its expertise ANNUAL SURVEY OF in currence AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 80 28-OCT-14 9:36 Aguirre foreign affairs context. litical implications” entailed by the “relating to obstruction of justice” differed dramatically from “seri- “relating to obstruction of justice” phrase at issue in ous nonpolitical crime,” the ambiguous strued “relating to,” which has no immigration-specific strued “relating to,” which implications. knowledging that, even though § that, even knowledging is ambiguous, 1101(a)(43)(S) the extent “to to the BIA’s interpretation only defer courts should within the that it is tion law should not receive but recognizes that the BIA statutory ambiguity, own reading of based on the agency’s deference for interpretations the interpretation statutes. To determine whether federal criminal expertise, courts provision requires agency of a particular statutory and to the form nature of the provision at issue should look to the of the BIA’s reasoning. intent, as on congressional In congressional intent to delegate. ambiguity indicates that §Third Circuit observed was on its face suscep- 1101(a)(43)(S) and prior judi- by reference to other statutes tible to interpretation cial opinions. “relating to”). obstruction of justice” bore “none of the same [foreign policy] implications” pre- sent in 35568-nys_69-2 Sheet No. 117 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 117 35568-nys_69-2 35568-nys_69-2 Sheet No. 118 Side A 10/28/2014 12:36:12 Al- Espinoza-Gon- note 173 (“It is un- supra , Thus there is little reason to . Certainly, unlike the EPA, it did not 403 . Aguirre Velazquez-Herrera, 24 I. & N. Dec. 503, 508–09 Chevron presumed congressional delegation based congressional presumed , Matter of Lok, 18 I. & N. Dec. 101, 105 (BIA 1981) , Matter of Lok, 18 I. & N. Dec. 101, concludes that deference was inappropriate concludes that but instead drew inferences from the “obstruction but instead drew inferences from The BIA did not invoke policy considerations or The BIA did not invoke policy , 677 F.3d at 108 (Katzmann, J., concurring) (indicating that , 677 F.3d at 108 (Katzmann, J., concurring) see also Matter of the Third Circuit expressly observed that “[a]lthough we do not the Third Circuit expressly observed that See, e.g. 401 400 Immigration Law in the Supreme Court , Higgins Denis Rentiera-Morales than to the cross-disciplinary balancing that the EPA per- than to the cross-disciplinary balancing See, e.g. See Higgins 402 The inquiry into the form of the BIA’s reasoning should also the form of the BIA’s reasoning The inquiry into bears a closer resemblance to the analysis undertaken by bears a closer resemblance to and 402. In 403. 400. 401. that its interpretation implements The BIA has in other cases asserted (“[W]e conclude that the policies of the Act would best be served by deeming the (“[W]e conclude that the policies of the to end with the entry of a final admin- lawful permanent resident status of an alien istrative order of deportation.”). approach to resolving the instant matter, defer to the BIA here, we will discuss its 633 F.3d at 210. as it bears some similarities to our own.” fill in substance to the open texture of a statute . . . . [T]he Board simply decided a fill in substance to the open texture of a statute . . . . [T]he Board simply decided case. It lent no new interpretation to the Refugee Act and did not even mention the Convention.”); (BIA 2008) (characterizing BIA gap-filling as “seeking to identify . . . ‘federal policies’”). the BIA’s “analysis of a federal criminal statute” should not receive deference) (in- the BIA’s “analysis of a federal criminal ternal citation omitted). executive policy. clear . . . exactly what the Board did in any insights based on its extensive experience in adjudicating immi- any insights based on its extensive gration claims, 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE determination on a based deference denying merely than rather the negative drew on court the unambiguous, was the statute that 583 branches the political norm that of the longstanding implication ambiguity, Apart from policy. in foreign are supreme § that Congress characteristics indicating bore no 1101(a)(43)(S) in Whereas the courts its meaning. the BIA to resolve intended wan this Note requires the approach favored by solely on ambiguity, intended courts to some evidence that Congress courts to identify fully com- when courts are otherwise defer to a BIA interpretation the particular provision at issue. petent to interpret question is suscep- whether the INA provision in serve to determine Katzmann’s con- of agency expertise. Judge tible to the application currence in \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 81 28-OCT-14 9:36 of the federal reasoning was based on its reading because the BIA’s immigration-spe- than the application of its criminal code rather cific expertise. formed to make policy in of justice” offenses in Title 18. The BIA’s reasoning in of justice” offenses in Title 18. The zales judges presume that the BIA has any particular advantage over courts in presume that the BIA has any particular 35568-nys_69-2 Sheet No. 118 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 118 35568-nys_69-2 35568-nys_69-2 Sheet No. 118 Side B 10/28/2014 12:36:12 the Espinoza- 406 doctrine Chevron , 545 U.S. 967, 982 (2005) framework should not framework should the Fifth Circuit appears to inde- Espinoza-Gonzalez, 22 I. & N. Dec. Chevron In re it may not have a substantial impact it may not have , the Additionally, the BIA did not observe did not the BIA Additionally, 407 404 Alwan v. Ashcroft CONCLUSION when arguing that the BIA’s “unexplained interpre- when arguing that the BIA’s “unexplained Chevron Bracamontes v. Holder, 675 F.3d 380, 386 (4th Cir. 2012) Bracamontes v. Holder, 675 F.3d 380, Cf. Espinoza-Gonzales However, the proposed approach would provide pro- However, the proposed approach was applicable to its interpretation, suggesting that the suggesting interpretation, to its applicable was Holder v. Martinez Gutierrez, 132 S. Ct. 2011, 2021 (2012) (explain- Holder v. Martinez Gutierrez, 132 S. Ct. 408 See dissent cited rather than as a gap-filling policymaker. Because courts, not Because courts, policymaker. as a gap-filling rather than Chevron Because the particular provision at issue, §Because the particular 1101(a)(43)(S), is If the circuits expressly adopt the application of agency exper- adopt the application of If the circuits expressly 404. that the BIA is better situated For example, there is no reason to suppose 405. 406. the determination of ambiguity. Courts have the ultimate authority over 407. This Note leaves open the question of whether agency expertise should 408. Though the courts have differed in their approaches to deference in the 405 to discern congressional intent than a federal court, but the BIA’s process of poli- to discern congressional intent than a federal relies on BIA determinations of con- cymaking through interpretation nonetheless gressional intent. BIA interpretation of 8 U.S.C. (denying deference to a congressional intent-based § concerning con- 1101(a)(13)(A) because “[r]egardless of the BIA’s speculation says what is says”). gressional intent, however, the statute plainly if it “thought its hand tied, or that it ing that the BIA does not receive deference if assured it could do so”). The might have reached a different result Gonzales agency saw its role as construing the one true meaning of the stat- true meaning the one its role as construing agency saw ute 584interpretation. its reaching NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 82 28-OCT-14 9:36 on the substantive outcomes of immigration adjudications, as on the substantive outcomes at the same interpretation as the courts may independently arrive as the BIA under different BIA or may reach the same judgment reasoning. that of ambiguity, determination make the ultimate agencies, 889, 900 (BIA 1999) (Rosenberg, Board Member, concurring and dissenting). 889, 900 (BIA 1999) (Rosenberg, Board X Internet Servs. See Nat’l Cable & Telecomms. Ass’n v. Brand is unambiguous “trumps” the agency (holding that a court’s finding that a statute “follows from the unambiguous terms of construction if the judicial construction the statute”). be adopted as a threshold factor outside of the immigration context. Section 1101(a)(43)(S) context, the end results for noncitizen petitioners have been the same. For example, in pendently reach the same result as the BIA under the guise of step two reasonable- tation of ‘obstruction of justice’ . . . does not constitute a permissible interpreta- tation of ‘obstruction of justice’ . . . does tion of the statute and is unreasonable.” BIA’s view of the one true meaning of the statute is not due of the statute is true meaning of the one BIA’s view deference. the application of the BIA’s immigration-specific not susceptible to the BIA did not apply immigration-specific expertise and because expertise in in the immigration context, in the immigration apply. factor for the application of the tise as a threshold 35568-nys_69-2 Sheet No. 118 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 118 35568-nys_69-2 35568-nys_69-2 Sheet No. 119 Side A 10/28/2014 12:36:12 ’s presumption Chevron By limiting deference solely By limiting 409 , Martin v. OSHRC, 499 U.S. 144, 154 (1991) (“Because historical , Martin v. OSHRC, 499 U.S. 144, 154 (1991) 388 F.3d 507, 514–15 (5th Cir. 2004) (explaining that “we have— See See, e.g. the Third Circuit agreed with the BIA that petitioner’s crime related to the Third Circuit agreed with the BIA First, the proposed approach would be more faithful to con- more faithful to would be proposed approach First, the 409. Denis for all intents and purposes—reviewed the merits of Alwan’s petition”). Similarly, obstruction of justice, but arrived at this conclusion without deferring. Denis v. obstruction of justice, but arrived at this 2011) (agreeing that petitioner’s crime of Att’y Gen., 633 F.3d 201, 213 (3d Cir. conviction relates to obstruction of justice). familiarity and policymaking expertise account in the first instance for the pre- sumption that Congress delegates interpretive lawmaking power to the agency to rather than to the reviewing court, we presume here that Congress intended invest interpretive power in the administrative actor in the best position to develop these attributes.”) (internal citations omitted). ness analysis. 2013] ADMINISTRATION IMMIGRATION AND EXPERTISE on intent legislative reflect appropriately and benefits cess-based courts. and the BIA between of power division the 585 approaches. intent than current gressional \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 83 28-OCT-14 9:36 to contexts where agencies apply expertise, courts can better effec- agencies apply expertise, courts to contexts where the proposed ap- will of Congress. Second, tuate this presumed opinions and BIA better reasoned judicial proach would ensure courts would INA provisions de novo, opinions. By interpreting and sum- analysis rather than mechanically generate independent guidance for an agency interpretation, providing marily adopting the BIA legislators, and the BIA. Additionally, future litigants, with immigra- incentives to justify its decisions would have greater than address- or statements of policy rather tion-specific rationales approach a court would. As a result, the proposed ing ambiguity as the functions they agencies and courts perform would ensure that to perform. are respectively more competent in that Congress intended to delegate interpretive authority to agen- authority to delegate interpretive intended that Congress apply ex- agencies that specialized from the premise cies extends will. execute congressional pertise to 35568-nys_69-2 Sheet No. 119 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 119 35568-nys_69-2 35568-nys_69-2 Sheet No. 119 Side B 10/28/2014 12:36:12 586 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:503 \\jciprod01\productn\N\NYS\69-2\NYS204.txt unknown Seq: 84 28-OCT-14 9:36 35568-nys_69-2 Sheet No. 119 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 119 35568-nys_69-2 35568-nys_69-2 Sheet No. 120 Side A 10/28/2014 12:36:12 R R R R R R R R R R R R R R ...... 598 and countless other ...... 611 ...... 592 3 ...... 607 * ...... 589 ...... 590 ...... 607 ...... 610 deviantART, 587 ...... 598 2 ...... 602 ...... 595 JOSEPH M. ENO JOSEPH INTRODUCTION Tumblr, 1 ...... 608 , http://www.youtube.com (last visited Oct. 21, 2013)...... 588 , http://www.tumblr.com (last visited Oct. 21, 2013)...... 614 WHAT MOTIVATES ILLEGAL MOTIVATES WHAT Battleground THEORETICAL APPROACHES THEORETICAL UBE T FILE SHARING? EMPIRICAL AND EMPIRICAL FILE SHARING? UMBLR A. of BitTorrent The Advent B. Enforcement Methods Copyright C. of the Modern File Sharing The Contours A. Theory Production B.Theory Demand C. of Demand Cross-Price Elasticity A. Data B. Results and Analysis OU In the age of cloud computing, how can the state enforce intel- In the age of cloud computing, how I. Political Background Legal and * Oren Bar- J.D. 2013, N.Y.U. School of Law. I thank my advisors, Professor 1. Y 2. T II. the Market for Illegal File Sharing Modeling IV. Consequences Motivations and Policy III. A Novel Empirical Study lectual property rights against persistent, widespread violation? lectual property rights against that give the Internet its immense Should it even try? The factors appeal—the instantaneously between ability to transfer information the collaborative power of online geographically disparate users, of computing capital and communities, and the scaled integration human labor—are factors that make intellectual the very same and difficult to track. Yet property theft inexpensive, widespread, a new generation of content cre- these factors have also launched ators using YouTube, Gill and Professor Barton Beebe, for their excellent guidance; Professor Jennifer Gill and Professor Barton Beebe, for their in the Lederman/Milbank Fellowship Arlen, Professor Ryan Bubb, and my peers & for their feedback; and Lawrence Lederman and Milbank, Tweed, Hadley to McCloy for their generous support of scholarship at NYU. Finally, I would like thank my wife Kelly for her thoughtful comments and constant support. Conclusion \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 1 10-OCT-14 9:19 Introduction 35568-nys_69-2 Sheet No. 120 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 120 35568-nys_69-2 35568-nys_69-2 Sheet No. 120 Side B 10/28/2014 12:36:12 5 The 4 , Aug. 5, 2012, at IMES , N.Y. T I. § 1 (2001). Proof of Facts D Internet Pirates Will Always Win . 3 UR http://www.nytimes.com/2012/08/05/sunday-review/internet- . J M ART, http://www.deviantart.com (last visited Oct. 21, 2013). ART, http://www.deviantart.com (last visited LEGAL AND POLITICAL BACKGROUND 63 A Nick Bilton, See DEVIANT See available at File sharing in violation of copyright law has likely been prac- File sharing in violation of copyright Assuming, however, that the state does wish to enforce tradi- that the state does wish to Assuming, however, the legal and in five parts. Section I reviews This Note proceeds 3. 4. 5. ticed for as long as people have owned personal computers. ticed for as long as people have 588 intellec- professional and amateur between the line that blur sites NYUfor in- rationale traditional the Turning originators. property tual ANNUAL SURVEY OFportion of a substantial on its head, property protection tellectual AMERICAN LAW routine depends on the new generation created by this the work [Vol. 69:587 mash-ups, create remixes, rights to of intellectual property violation these vio- utility created by effect on social The net and cross-overs. impossible to measure. lations is copyrights, in the property rights, particularly tional intellectual it is essential to sharing, this Note argues that face of illegal file potential of file sharers when examining consider the motivation policy measures—motivations than previ- that are more complex measure the cross- a novel empirical study to ously thought. Using legal distribution demand between illegal and price elasticity of the persistence will help reveal what motivates methods, this Note various enforce- compare the effectiveness of of file sharing and ment strategies. Next, Section II presents two political issues related to file sharing. relevant economic models—one and one novel—and traditional for legal and illegal file sharing. their consequences on the markets contribution: an estimate Section III presents the note’s empirical demand between legal and illegal for the cross-price elasticity of the policy consequences of downloading. Section IV will examine Finally, the Conclusion will the empirical and theoretical models. provide some concluding thoughts. \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 2 10-OCT-14 9:19 advent of the Internet, increases in computing efficiency, and wide- advent of the Internet, increases only compounded the practice. spread computer ownership have SR5, pirates-will-always-win.html?_r=0 (“The way people download unauthorized con- pirates-will-always-win.html?_r=0 (“The to tent is changing. In the early days of music piracy, people transferred songs their home or work computers. Now, with cloud-based sites, like Wuala, uTorrent and Tribler, people stream movies and music from third-party storage facilities, be often to mobile devices and TV’s. . . . It’s like piracy-on-demand. And it will much harder to trace and to stop.”). 35568-nys_69-2 Sheet No. 120 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 120 35568-nys_69-2 35568-nys_69-2 Sheet No. 121 Side A 10/28/2014 12:36:12 ., http://www.riaa. Video game de- M 12 A With the download With the 7 Capitalizing on the Capitalizing on 9 NOF ’ SS (Apr. 22, 2012), http://torrent- . A REAK F NDUS I (Nov. 4, 2007), http://www.youtube.com/ ORRENT UBE T , T Napster revealed the power of peer-to- Napster revealed Although the RIAA does not estimate Although the RIAA does not 8 OU ECORDING 11 , Y , R A Brave New Step: Why the Music Industry Should Follow the Hulu 10 . The History of File Sharing Unlike previous venues for file sharing, Napster focused Napster file sharing, for venues previous Unlike 6 See id. Scope of the Problem See id See id. How Did Napster Work? , Jessica Wang, , 51 IDEA 511, 523 (2011) (“Even from a business perspective, record indus- Napster’s programming seems outdated by comparison to seems outdated by comparison Napster’s programming 6. of the history of file sharing, see An- For a more comprehensive discussion 12. the recording industry’s slow Other commentators have also emphasized 9. 10. 11. 7. 8. method, see James Allen-Rob- For a brief overview of Napster’s file sharing drew Lee, more modern file sharing technology, but it marked an important sharing technology, but it marked more modern file sharing. By one the historical development of file tipping point in estimate, Association of America (“RIAA”) Recording Industry site Napster emerged in 1999, “Since peer-to-peer (p2p) file-sharing 53 percent, from $14.6 billion music sales in the U.S. have dropped to $7.0 billion in 2011.” 2013]public the into file sharing of the problem thrust first Napster FILE SHARING? ILLEGAL MOTIVATES WHAT sphere. 589 \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 3 10-OCT-14 9:19 exclusively on music and provided a global, well-recognized forum well-recognized provided a global, on music and exclusively interface. with a user-friendly for downloaders peer file sharing networks: by centralizing users, not files, Napster networks: by centralizing users, peer file sharing without having with access to millions of songs could provide users of the songs itself. to maintain a database what percent of these lost sales are due to alternative legal distribu- what percent of these lost sales are and Spotify, there is little tion methods like YouTube, Pandora, to these losses. doubt that piracy has contributed and installation of Napster software, computer users with an In- users with software, computer of Napster and installation listed that other users search for any song could ternet connection the fast- into download, compressed available for and made format. downloading MP3 shared directly resources of users, the files were home-computing indexing the peer, with Napster tracking and from peer to downloads. velopers face similarly alarming statistics; industry titan Ubisoft esti- velopers face similarly alarming statistics; mates that as many as 93–95% the downloads of its games of com/physicalpiracy.php?content_selector=piracy-online-scope-of-the-problem (last com/physicalpiracy.php?content_selector=piracy-online-scope-of-the-problem visited Oct. 21, 2013). the decline in traditional music sales. adoption of new technology in explaining See, e.g. Model in tries are failing to combat illegal piracy because they have been unsuccessful offering an attractive alternative to illegal piracy. Not only is its current business model outdated, but it is also unresponsive to changing consumer desires.”). watch?v=7AF18DUIH1Y. freak.com/the-history-of-filesharing-120422. ertson, 35568-nys_69-2 Sheet No. 121 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 121 35568-nys_69-2 35568-nys_69-2 Sheet No. 121 Side B 10/28/2014 12:36:12 , , OF . Bit- NIV 18 (Oct. 26, SE OF THE , U U REAK F BitTorrent cli- 20 NFRINGING ORRENT I , T But during the legal But during Created and released 14 17 Implications of the End-to-End STIMATE OF E Additionally, because of tech- because Additionally, N 13 : A , and Vuze. Position on Peer-to-Peer File Sharing ., http://www.umkc.edu/is/security/p2p_ 16 , Comment to EPORT ERVS R . S http://documents.envisional.com/docs/Envisional- NFO , http://www.bittorrent.com (last visited Oct. 21, 2013). , http://www.bittorrent.com (last visited (July 2, 2001), http://finance.groups.yahoo.com/group , uTorrent A. of BitTorrent The Advent I ECHNICAL 15 Ubisoft CEO Yves Guillemot: PC Gaming Piracy Levels Up at 95% Ubisoft CEO Yves Guillemot: PC Gaming Piracy COM . ITY , T ROUPS , http://www.utorrent.com (last visited Oct. 21, 2013). , http://www.utorrent.com (last visited available at C 19 ! G , Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, , Metro-Goldwyn-Mayer Studios Inc. v. Grokster, , http://www.vuze.com (last visited Oct. 21, 2013). , http://www.vuze.com (last visited Oct. ORRENT See also LimeWire, Napster, The Pirate Bay: A Brief History of File Sharing See also LimeWire, Napster, The Pirate Bay: T ORRENT ANSAS AHOO (2011), IT UZE NVISIONAL T -K See, e.g. μ BitTorrent—A App New P2P , Y (Aug. 22, 2012), http://www.forbes.com/sites/davidthier/2012/08/22/ BitTorrent clients provide greater efficiency than traditional BitTorrent clients provide greater One by one, Napster and its successors were shut down, often were shut down, its successors one, Napster and One by (Oct. 27, 2012, 5:18 PM), http://www.geek.com/articles/gadgets/limewire- 13. David Thier, 14. 18.message from 2001 in which Bram Interestingly, the original forum 17. V 19. E 16. 20. For a graphical overview, see 15. B ISSOURI EEK ORBES NTERNET I M F peer-to-peer networks. Traditional networks like Napster match one peer-to-peer networks. Traditional the desired file is obtained by a uploader with one downloader, and to the latter. sequential transfer from the former 590infringement. copyright represent NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:587 \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 4 10-OCT-14 9:19 napster-the-pirate-bay-a-brief-history-of-file-sharing-20101027; Ernesto Van Der Sar, napster-the-pirate-bay-a-brief-history-of-file-sharing-20101027; with the RIAA LimeWire Shuts Down After Losing Court Battle ubisoft-ceo-yves-guillemot-pc-gaming-piracy-levels-up-at-95. still accessible at the time of writing. Bram Cohen releases his BitTorrent client is Cohen, Principle battles over the traditional peer-to-peer network providers, a new traditional peer-to-peer network battles over the by programs was born: BitTorrent, utilized file sharing protocol such as BitTorrent /decentralization/message/3160. explanation.asp (last visited Oct. 21, 2013). by Bram Cohen in 2001, the BitTorrent file sharing protocol fur- in 2001, the BitTorrent file sharing by Bram Cohen process. and streamlines the file sharing ther decentralizes ents are capable of downloading many pieces of a desired file at ents are capable of downloading nological changes and increased worldwide Internet access, the access, Internet worldwide increased and changes nological measure. more difficult to becoming file sharing is likely scope of or civil judgments. of injunctions as a result Torrent has become wildly popular for both legal and illegal file wildly popular for both legal Torrent has become to constitute BitTorrent file sharing is estimated sharing. Currently, of that traffic (or traffic, and at least 63.7% 17.9% of all Internet include copyright traffic) is estimated to 11.4% of all Internet infringement. Internet_Usage-Jan2011.pdf. G 930 (2005). 2010), http://torrentfreak.com/limewire-loses-court-battle-with-riaa-shuts-down- 101026. 35568-nys_69-2 Sheet No. 121 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 121 35568-nys_69-2 35568-nys_69-2 Sheet No. 122 Side A 10/28/2014 12:36:12 note 5. When 21 supra downloads a 22 . 263 (2002). EV The BitTorrent Protocol Speci- . L. R note 21; Bilton, , http://en.wikipedia.org/w/ HI obtains the remainder of obtains the remainder a supra , IKIPEDIA So, as soon as user So, as soon as user W 25 , 69 U. C 23 The Creative Destruction of Copyright: Napster 26 Those who download more than they upload Those who download more than (Jan. 10, 2008), http://www.bittorrent.org/beps/bep_ 24 , even before user , even before user b ORG B. Copyright Enforcement Methods . , Raymond Shih Ray Ku, ORRENT T IT See id. See id. See Glossary of BitTorrent Terms, Id. See The BitTorrent Protocol Specification , B Because file sharing is so widespread and difficult to track, Because file sharing is so widespread See, e.g. The unique characteristics of the BitTorrent file sharing The unique characteristics of To compound the complexity and efficiency of the system, as complexity and efficiency of To compound the Generally, file sharing is illegal insofar as it violates copyright Generally, file sharing is illegal 27 21. see For a more detailed, technical explanation, 22. 23. 24. 27. Currently, digital works are entitled to full copyright protection, but some 25. 26. and the New Economics of Digital Technology method make it particularly difficult to track. Torrent clients en- method make it particularly difficult method of file sharing marked by able an extraordinarily efficient transfer speeds, and decentraliza- coordination across borders, fast tion of identifying data. 2013]peers. many different from order, sequential out of once, FILE SHARING? ILLEGAL MOTIVATES WHAT 591 user becomes an a file is downloaded, the torrent soon as a piece of piece of the file. uploader for that \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 5 10-OCT-14 9:19 are called, pejoratively, “leechers.” law. 0003..html. scholars argue that intellectual property law should deal with digital works differ- ently. the end credits to a movie, this portion of the file is available for to a movie, this portion of the the end credits download by user downloading a movie, for example, a traditional client would seek would client a traditional for example, a movie, downloading the begin to download the movie and user who owned out one ending and finish with the to the action, credits, proceed opening simultane- hand, might on the other A BitTorrent client, credits. the action one user, part of credits from the ending ously download a third. credits from and the opening from another, fication index.php?title=Glossary_of_BitTorrent_terms&oldid=586442705 (last visited Dec. index.php?title=Glossary_of_BitTorrent_terms&oldid=586442705 29, 2013). the movie. Some torrent clients require a certain amount of torrent clients require a certain the movie. Some by restricting others incentivize the behavior uploading, while downloaders to for non-uploaders. By encouraging download speed that files re- as well, BitTorrent clients ensure become uploaders download—allmain available for incentivized to downloaders are are known as uploaders. Colloquially, uploaders carry their weight and active client par- as “seeders,” downloaders are “downloaders,” ticipants are “peers.” 35568-nys_69-2 Sheet No. 122 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 122 35568-nys_69-2 35568-nys_69-2 Sheet No. 122 Side B 10/28/2014 12:36:12 , 32 EUTERS , http:// , R Capitol v. PPLE , A 37 . (Sept. 30, 2008), https:/ Having shared twenty- 33 OUND F The Copyright Act autho- The Copyright 31 Music Industry to Abandon Mass Suits High damage suits like High damage suits RONTIER , for example, the Eighth Circuit , for example, the 35 . F LEC After initiating 35,000 such suits, the After initiating 35,000 such suits, , E 36 Additionally, governments sometimes en- sometimes governments Additionally, 29 30 TIMELINE-Kim Dotcom’s Year, from Megaupload to Mega TIMELINE-Kim Dotcom’s Year, from Megaupload , , Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899, 907 (8th , Capitol Records, Inc. v. Thomas-Rasset, , Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, , Metro-Goldwyn-Mayer Studios Inc. v. Grokster, and suits against file sharing clients relying on theories clients relying against file sharing and suits Sarah McBride & Ethan Smith, However, the statute authorizes an upward adjustment to a maximum However, the statute authorizes an upward 28 , while designed to strike fear in the hearts of illegal file to strike fear in the hearts of , while designed See, e.g. Id. Id. Questions (FAQ) See iTunes Store: iTunes Plus Frequently Asked See See, e.g. See, e.g. . J. (Dec. 19, 2008, 12:01 AM), http://online.wsj.com/article/SB1229660 The market value for twenty-four songs on iTunes at the for twenty-four songs on iTunes The market value T 34 Because individual file sharers are numerous and dispersed, Because individual file sharers Under the Copyright Act of 1976, copyright holders pursuing a holders pursuing of 1976, copyright Copyright Act Under the S 28. 31. 17 U.S.C. § 504(c)(1) (2006). 32. 33. 692 F.3d 899, 907 (8th Cir. 2012). Capitol Records, Inc. v. Thomas-Rasset, 34. 35. 37. 29. 36. For a look back on the RIAA’s litigation strategy and its consequences, see 30. Capitol Records v. Thomas-Rasset Capitol Records v. ALL (Jan. 19, 2013, 2:36 AM), http://www.reuters.com/article/2013/01/19/new zealand-dotcom-idUSL6N0AL02Y20130119. and a downward adjustment to a mini- of $150,000 per work for willful violations violations. §mum of $200 per work for unknowing (2006). 504(c)(2) In song shared by the damage award of $9,250 per upheld a statutory a due process challenge. defendant against be a far more effective way of targeting a file sharing client can to achieve this, copyright hold- preventing copyright infringement; copyright infringement. ers have turned to theories of secondary 592 of two one through rights their enforce typically holders copyright NYUhigh statutory with sharers file individual against suits methods: ANNUAL SURVEY OFdamages, AMERICAN LAW [Vol. 69:587 award of statutory an infringer may opt for the private suit against than actual damages. damages rather \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 6 10-OCT-14 9:19 38836021137.html. RIAA decided in 2008 to discontinue its practice of suing individual RIAA decided in 2008 to discontinue relations concerns. file sharers, largely due to public time of publication is about $24. time of publication of secondary liability. of secondary for high- especially criminal prosecution, through force copyrights profile offenders. Thomas and were to stem the tide of illegal downloading sharers, did little extraordinarily unpopular. /www.eff.org/wp/riaa-v-people-five-years-later. four songs, the defendant was liable for $222,000 in statutory dam- was liable for $222,000 four songs, the defendant ages. rizes damage awards ranging from $750 to $30,000 per violation. ranging from $750 to $30,000 rizes damage awards Cir. 2012). support.apple.com/kb/ht1711 (last visited Dec. 29, 2013). support.apple.com/kb/ht1711 (last visited RIAA v. The People: Five Years Later W 929–30 (2005). 35568-nys_69-2 Sheet No. 122 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 122 35568-nys_69-2 35568-nys_69-2 Sheet No. 123 Side A 10/28/2014 12:36:12 , IMES , the , N.Y. T both are The Court Grokster 42 40 , is currently 45 Although this 41 While relatively rare, 44 Unfortunately, in Unfortunately, 39 Copyright, Trademark and Secondary Liability 445, 465–66 (2009). RTS U.S. Charges Popular Site with Piracy and vicarious liability, which holds par- liability, which and vicarious http://www.nytimes.com/2012/01/20/technology 38 . J.L. & A available at , Ben Sisario, OLUM at 939–40. at 936–37. , see Mark Bartholomew, that at least some file sharing clients may be held liable for that at least some file sharing clients Despite the muddled doctrine, it is clear in the wake of doctrine, it is clear in the Despite the muddled Id. See id. Id. See id. See generally 43 Grokster In addition to private enforcement, copyright protection may In addition to private enforcement, Grokster, 32 C 38. Grokster, Ltd., 545 U.S. 913, 929–30 Metro-Goldwyn-Mayer Studios Inc. v. 39. 40. 41. 42. 43. a new type of contributory liabil- For an argument that the Court defined 44. 17 U.S.C. § (2006). 506(a)(1) 45. (2005). ity in 2013] liability, contributory such theories: are two there Traditionally, FILE SHARING? ILLEGAL MOTIVATES WHAT or encourag- inducing “intentionally liable for parties holds which infringement,” ing direct 593 \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 7 10-OCT-14 9:19 Grokster and either sued for damages or secondary copyright infringement enjoined from operation. prosecution. The Copyright Act also be enforced through criminal for willful copyright infringers who authorizes criminal prosecution make available works with a retail violate copyright laws for profit, make available an unreleased work value of greater than $1,000, or being prepared for commercial distribution. ties liable for “profiting from direct infringement while declining to while declining direct infringement for “profiting from ties liable limit it.” a right to stop or exercise only case in which the Supreme Court has considered secondary has considered Supreme Court in which the only case ser- file sharing liability for peer-to-peer infringement copyright which theory it was was less than clear in specifying vices, the Court liable. the file sharing service Grokster applying to find held that “one who distributes a device with the object of promot- distributes a device with the held that “one who expression or copyright, as shown by clear ing its use to infringe is liable for the steps taken to foster infringement, other affirmative infringement by third parties.” resulting acts of highly visible. Kim Dotcom, the these criminal prosecutions are Megaupload, a site commonly flamboyant tech icon who created content used for hosting and sharing copyrighted New Zealand on charges of copy- awaiting an extradition trial in sounds like an adoption of contributory liability, the Court consid- of contributory liability, sounds like an adoption of advertising prof- of intent Grokster’s collection ered as evidence works; to filter for copyrighted its and its failure behaviors traditionally associated with the vicarious liability frame- associated with the vicarious behaviors traditionally work. After Jan. 20, 2012, at B1, /indictment-charges-megaupload-site-with-piracy.html. 35568-nys_69-2 Sheet No. 123 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 123 35568-nys_69-2 35568-nys_69-2 Sheet No. 123 Side B 10/28/2014 12:36:12 Metro- note 30. and many supra 53 , (Dec. 7, 2006), REAK F Despite the pending the Despite 46 , http://en.wikipedia.org/w/ ORRENT ). , https://en.wikipedia.org/w/ , T IKIPEDIA Grokster 47 IKIPEDIA Torrent , W μ , W , did little to bridge the gap between copy- Many popular BitTorrent clients Many popular This is a marked change from the This is a marked change from 50 . 55 and any combination of client and site and any combination of client and note 43, at 446–49 Supreme Court’s last (“The 54 note 19. Grokster supra . (finding the popular torrent listing site IsoHunt liable supra id , , BitTorrent Inc Buys There are many BitTorrent clients There are many 52 See, e.g. at 940–41. NVISIONAL Additionally, most BitTorrent clients avoid the kind of BitTorrent clients avoid the Additionally, most And as a procedural matter, there is no one “BitTorrent” And as a procedural E Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 940 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Bartholomew, 49 The peculiar characteristics of BitTorrent clients make of BitTorrent clients The peculiar characteristics 51 Torrent, purchased by BitTorrent Inc. in 2006, is a notable exception. Torrent, purchased by BitTorrent Inc. See TIMELINE-Kim Dotcom’s Year, from Megaupload to Mega See TIMELINE-Kim Dotcom’s Year, from Megaupload Id. See See See Comparison of BitTorrent Sites See See id. μ See Comparison of BitTorrent Clients 48 All of these methods of enforcement can be seen as solutions enforcement can methods of All of these 46. 47. 48. 49. 51. 52. 50. 54. 55. Columbia Pictures Indus. v. Fung, 710 F.3d 1020, 1027 n.4 (9th Cir. 53. 594 government. the U.S. by infringement right NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:587 and numerous, dispersed, sharers are problem: file to a central Court has the Supreme to track. Notably, is difficult their behavior BitTorrent suits against infringement any copyright not addressed clients. \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 8 10-OCT-14 9:19 for inducing copyright infringement under may be used by downloaders. entity to sue—whereas companies that Napster and Grokster were community is software products, the BitTorrent offered eponymous less centralized. overt solicitation of copyright infringing activity that the Court of copyright infringing activity overt solicitation in found problematic their legal status somewhat murky. Unlike Grokster, the BitTorrent somewhat murky. Unlike Grokster, their legal status more than 10% of for legitimate file distribution protocol is used the time. do not run ads, so the Court’s “for profit” analysis will also be inap- so the Court’s “for profit” analysis do not run ads, plicable. trial, Dotcom has already launched a more heavily encrypted suc- encrypted heavily a more launched has already Dotcom trial, Mega. Megaupload, called cessor to infringement, its 2005 decision in pronouncement on the issue of secondary Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. right and trademark in this area.”). (2005) (requiring “intent to bring about infringement” for an inducement theory (2005) (requiring “intent to bring about of liability). Ernesto Van Der Sar, index.php?title=Comparison_of_BitTorrent_clients&oldid=587460256 (last visited index.php?title=Comparison_of_BitTorrent_clients&oldid=587460256 Dec. 29, 2013). (last visited index.php?title=Comparison_of_BitTorrent_sites&oldid=588201334 Dec. 29, 2013). 2013). Because of their more conspicuous role in facilitating peer-to-peer sharing of copyrighted content, the torrent listing sites are arguably more likely to be sued successfully than the torrent clients, which often offer a number of legal download- ing applications. BitTorrent indexing sites, http://torrentfreak.com/BitTorrent-inc-buys-%C2%B5torrent. 35568-nys_69-2 Sheet No. 123 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 123 35568-nys_69-2 35568-nys_69-2 Sheet No. 124 Side A 10/28/2014 12:36:12 R 56 61 Ac- 58 SSEMBLY . A M A HE (Harvard Bus. Sch., , T The overlap be- 60 http://www.hbs.edu/faculty/ available at File-Sharing and Copyright Pirate Bay Moves to Decentralized DHT Protocol, Kills Pirate Bay Moves to Decentralized DHT Protocol, Where do Music Collections Come From? (Nov. 17, 2009, 1:40 PM), http://arstechnica.com/tech-pol- note 27, at 279–84. , Nate Anderson, ECHNICA supra As their report put it, “[t]he biggest music pirates are As their report put it, “[t]he biggest T 59 RS Id. Id. See, e.g. C. Modern File Sharing Battleground The Contours of the , A Stricter penalties against infringers may incentivize consum- against infringers may incentivize Stricter penalties There is little consensus about how to deal with the issues of about how to deal with There is little consensus 58. Joe Karaganis, 59. 60. 61. For a 2009 summary of empirical studies on file sharing, see Felix 56. 57. for expanding copyright protec- For a summary of the major arguments 57 copyright law in the digital age. Some scholars argue that the best the digital age. Some scholars argue copyright law in by granting is to ratchet up protection way to enforce copyrights to target file shar- and private actors more tools the government ers. (Oct. 15, 2012), http://piracy.americanassembly.org/where-do-music-collections- come-from/. Oberholzer-Gee & Koleman Strumpf, Publication%20Files/09-132.pdf. Working Paper No. 09-132, 2009), 2013]and download engine search the era, where Grokster and Napster FILE SHARING? ILLEGAL MOTIVATES WHAT are developers BitTorrent program. software of one were part client by new easily replaceable to find, and be dispersed, difficult likely to dependent face legal issues when courts is often the case coders. As 595 steps is several the current jurisprudence technology, on emerging and sharing continues, meantime, file the times. In the behind services. sharing client decentralized file for even more users push \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 9 10-OCT-14 9:19 ers to seek legal sources for their content, thus protecting the sources for their content, thus ers to seek legal data, however, holders and distributors. Some interests of copyright as a supplement file sharing is used primarily tend to show that market transactions. rather than a replacement for traditional music.” also the biggest spenders on recorded icy/2009/11/pirate-bay-kills-its-own-BitTorrent-tracker (recounting The Pirate icy/2009/11/pirate-bay-kills-its-own-BitTorrent-tracker system, obviating the need for a single en- Bay’s move to a decentralized tracking more difficult to enjoin file sharing activity tity to track torrents and thus making it of liability). through vicarious or contributory theories tion, see Ku, Tracker cording to one study by the non-partisan American Assembly, con- cording to one study by the non-partisan file sharing purchased sumers who engaged in illegal peer-to-peer who did not engage in file 30% more songs legally than consumers sharing. makes it difficult to predict tween legal and illegal downloaders law will affect the market how increased enforcement of copyright property goods. Scholarly for legally-distributed digital intellectual results: some claim that file empirical studies have found mixed some find the opposite effect. sharing reduces legal sales, while 35568-nys_69-2 Sheet No. 124 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 124 35568-nys_69-2 35568-nys_69-2 Sheet No. 124 Side B 10/28/2014 12:36:12 R , . 125 EV Grokster available at Jacqueline HRIVE IN THE See T , 90 N.C. L. R The Case Against Patents OMMERCE C RT AND To encourage artistic crea- To encourage A 63 http://archive.org/details/Lawrence- It is difficult to imagine the It is difficult to . 111, 112 (2005). 64 Justice Souter wrote in AKING Aggressive enforcement of copy- 68 ECH 66 : M available at EMIX . J.L. & T , R Fair Use as a Collective User Right ARV ESSIG . art. I, § 8, cl. 8. L , Michele Boldrin & David K. Levine, note 27. Cariou v. Prince, 714 F.3d 694, 706 (2d. Cir. 2013). Cariou v. Prince, 714 F.3d 694, 706 (2d. , 19 H Nonetheless, Ku correctly recognizes the tension Nonetheless, Ku ONST 65 11–15 (2008), supra See, e.g. at 294–306. at 311–23. See also AWRENCE Haochen Sun, L Ku, Solving the Digital Piracy Puzzle: Disaggregating Fair Use from the DMCA’s U.S. C CONOMY See See id. See id. See See See Fair use law provides some protection for artists, but fair use Fair use law provides some protection As a result, copyright law is no longer needed to incentivize is no longer needed copyright law As a result, E 67 Not all scholars agree that file sharing is a problem; some be- is a problem; sharing that file agree all scholars Not Additionally, appropriation from copyrighted subjects is a well- from copyrighted subjects Additionally, appropriation 62 67. 62. 63. 64. 65.sweeping changes to intellectual Yet Ku is not alone in suggesting that 66. 68. YBRID H LessigRemix. property law are necessary to avoid the inefficiencies caused by the grant of mo- property law are necessary to avoid the nopoly power. Paper No. 2012-035A, 2012), (Fed. Reserve Bank of St. Louis, Working (arguing that there is little http://research.stlouisfed.org/wp/2012/2012-035.pdf patents and strong evidence that patents empirical evidence for the benefits of have negative effects on innovation). 596 NYU Raymond to the times. yield should law that copyright that it is lieve ANNUAL SURVEY OF have in digital technology that changes example, argues Ku, for AMERICAN LAW distribu- and content of content creators the interests decoupled [Vol. 69:587 tors. \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 10 10-OCT-14 9:19 right law in such an environment can frustrate the stated purpose right law in such an environment of copyright law—encouragingcreation of valuable artistic con- the tent. between traditional copyright enforcement and the digital distribu- copyright enforcement and between traditional owned by most consumers. tion technology including tradition, practiced by luminaries established artistic artists like Roy Lichtenstein, and contemporary Andy Warhol and Girl Talk and Richard Prince. itself might be overly restrictive. the distribution of content, and digital works should, therefore, not should, therefore, and digital works of content, the distribution protection. for copyright be eligible “[t]he more artistic protection is favored, the more technological “[t]he more artistic protection the administration of copyright law innovation may be discouraged; sweeping political changes necessary for the implementation of changes necessary for the implementation sweeping political Ku’s proposal. tion, Ku proposes a compensation system for content creators, a compensation system for tion, Ku proposes components, and supported by a tax on computer which would be based on a mea- content creators proportionally distributed to the popularity. sure of their internet D. Lipton, Anti-Device Provisions (2011) (arguing that the fair use doctrine is underproductive when it is conceptu- alized as an individual rather than a collective right). Provisions of the Digital Mil- lenium Copyright Enforcement Act may be particularly problematic. 35568-nys_69-2 Sheet No. 124 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 124 35568-nys_69-2 35568-nys_69-2 Sheet No. 125 Side A 10/28/2014 12:36:12 — 71 Grokster Nine years after years after Nine Policymakers and courts Policymakers 69 70 II. FILE SHARING note 66 at 1–5, 254–60. . art. I, § 8, cl. 8. supra ONST , MODELING THE MARKET FOR ILLEGAL MODELING THE MARKET FOR ESSIG U.S. C L See See Courts and lawmakers will continue to be challenged by new will continue to be challenged Courts and lawmakers From a theoretical standpoint, understanding the motivations From a theoretical standpoint, understanding 69. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 928 70. 71. when weighing the costs and benefits of new developments in copy- costs and benefits of new developments when weighing the (2005). 2013] tradeoff.” the in managing exercise is an FILE SHARING? ILLEGAL MOTIVATES WHAT 597 \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 11 10-OCT-14 9:19 was decided, it is no longer clear that artistic protection and tech- and protection artistic clear that longer it is no decided, was logos, Songs, videos, dichotomous goals. innovation are nological for a as the digital canvas are used copyrighted content and other on work is showcased creators whose of content new generation sharing is and file and deviantART, as YouTube, Tumblr, such sites process. part of this creative an integral should take note of these content creators and remember the fun- of these content creators and remember should take note of copyright—thedamental purpose of the arts promotion right enforcement. legal and illegal, emerges and markets, both issues as technology for resolving the of the normative prescription adapt. Regardless emerging technol- traditional copyright law and tension between central concern of of file sharers should be a ogy, the motivations these motivations: Note proceeds to examine policymakers. This through a novel frameworks, and next, first, through theoretical empirical study. of file sharers requires elements of both classical and behavioral of file sharers requires elements theory reveals how intellec- economic theory. Classical production markets for tangible goods and tual property markets differ from for content creators, espe- how these differences create difficulties Although governments are cially in the age of cloud computing. intellectual property rights, attempting various measures to enforce why these measures are needed production theory helps explain Most promisingly, production and, perhaps, why they are failing. the file sharing market should theory accurately predicts where price its goods—at cost. Additionally, this Note ar- essentially zero are essential to expanding gues that behavioral theory principles intellectual property. Demand the theory of demand for digital on the totality of costs to the should be understood to be based price. Including access costs, legal consumer, not just the nominal 35568-nys_69-2 Sheet No. 125 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 125 35568-nys_69-2 35568-nys_69-2 Sheet No. 125 Side B 10/28/2014 12:36:12 . FF NANT . A ARIETY UB , V (June 10, ANUFACTUR- . & P M , presents a , presents HIL UARDIAN infra EHICLE G , 18 P V HE , T For example, blockbus- 72 ULTIPLIERS FOR 74 M OST Unlike the electronic transmission C 75 Justifying Intellectual Property Filmmakers Lament Extinction of Film Prints Anatomy of a Blockbuster NDIRECT A. Production Theory I http://www.transportation.anl.gov/pdfs/TA/57.pdf. The available at OMPARISON OF Once the movie is made, however, there is typically a very Once the movie is made, however, Edwin C. Hettinger, Archie Thomas, David S. Cohen, ., C 73 ING See See See . When compared to intellectual property, tangible goods are When compared to intellectual Production of intellectual property goods differs in important property goods differs Production of intellectual Id 75. One study found that manufacturing costs (including material and labor 72. 73. 74. 2 (2000), YAS ET AL low cost to make copies of the film for distribution, especially if a low cost to make copies of the film digital copy of the film is available. (Apr. 17, 2013, 3:00 PM), http://variety.com/2013/film/news/film-jobs-decline- as-digital-distribution-gains-foothold-1200375732. but not depreciation) accounted for about 50% of the retail cost of cars. A V characterized by relatively smaller development costs and relatively characterized by relatively smaller aside intellectual property issues larger production costs. Putting the automobile is an example of a such as trademarks and patents, of the expense of producing vehi- typical tangible good. The bulk variable costs required by vehi- cles comes from the large fixed and cle manufacturing processes. 598II.B, Section in defined costs, and moral costs, NYUdigital intellec- of consumers of motivations of the picture clearer ANNUAL SURVEY OF of cross- the concept section presents Finally, this tual property. AMERICAN LAWcross-price to estimate Data collected of demand. price elasticity [Vol. 69:587 demand the expanded within of demand, examined elasticity are most of file sharers motivations can reveal which framework, activity. of file sharing determinative of production of tangible goods. The process ways from production costs, which in- into two phases: (1) development can be divided required to make design, and creative processes clude the research, which include a good; and (2) production costs, the first model of copies of that and distributing additional the cost of manufacturing by high develop- property is often characterized good. Intellectual costs. ment costs and very low production \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 12 10-OCT-14 9:19 research and design budget, according to the study, was less than 7% of the retail cost. ter movies require a high expenditure to hire actors, film, and edit ter movies require a high expenditure a movie. 2004), http://www.theguardian.com/film/2004/jun/11/3. 31, 34, 47–51 (discussing the extent to which intellectual property institu- (1989) and competition). tions provide necessary incentives for innovation 35568-nys_69-2 Sheet No. 125 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 125 35568-nys_69-2 35568-nys_69-2 Sheet No. 126 Side A 10/28/2014 12:36:12 78 See (Feb. 16, , Sept. 14, LATE As Video Game IMES , S Star Wars: The Old , N.Y. T (Jan. 20, 2012, 5:32 AM), Chris Morris, IMES 76 see also , L.A. T , CNBC (Mar. 18, 2010, 1:22 PM), http://www. MMOs (massively multiplayer online (massively multiplayer MMOs 77 What’s Killing the Video-Game Business? http://www.nytimes.com/2010/09/14/technology/14 3-D Printing Spurs a Manufacturing Revolution available at Interestingly, the increasing availability of three-dimensional print- Interestingly, the increasing availability 79 N. Van Zelfden, A user of average skill with basic computer hardware and a skill with basic computer hardware A user of average See id. See id. See 80 In contrast to these monumental production costs, the cost of monumental production costs, In contrast to these Video games are typical digital intellectual property goods. Re- property goods. digital intellectual are typical Video games 76. 80. intellectual property would take A true calculation of the cost of sharing 79. 78. Old Republic, for example, were The production costs for Star Wars: The 77. Ashlee Vance, distributing video games is quite small; in fact, in the age of wide- games is quite small; in fact, distributing video the cost of ownership and high-speed Internet, spread computer is essentially negli- digital intellectual property distribution for most gible. between intellectual property and tangi- ing devices may challenge the distinction available in the average home. ble goods by making factory-like processes 2013] of creating the cost to another, user computer one movie from of a FILE SHARING? ILLEGAL MOTIVATES WHAT very high. is automobile an additional hovered in games have for marquee video budgets cent production 599 the $40–100costs of production rivaling the million range, blockbusters. Hollywood across multiple years of work by developers Many games take continents. \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 13 10-OCT-14 9:19 connection to the Internet can reproduce practically any song, tele- Internet can reproduce practically connection to the game currently or news article, book, or video vision show, movie, from traditional retail previously available for consumption into account the cost of the computer, the cost of Internet, the cost of electricity, into account the cost of the computer, The cost of the computer, Internet, and and the cost of human labor expended. sunk costs (if we consider these as neces- electricity can alternatively be considered sities for the average citizen in the industrialized world), or be depreciated against every use of the computer (which likely makes each transaction of intellectual property cost very little). The cost of human labor will vary with the opportunity cost (wage), computer skill, and method of file sharing. For experienced file shar- ers using torrent clients, the cost of human labor is very small. games), whose production costs can be recouped through monthly through costs can be recouped whose production games), greater budgets. may pave the way for even subscription fees, http://herocomplex.latimes.com/2012/01/20/star-wars-the-old-republic-the- story-behind-a-galactic-gamble/?utm_source=dlvr.it&utm_medium=twitter&dlvrit= 63378#/0. 2010, at A1, 2009, 3:27 PM), http://www.slate.com/articles/technology/gaming/2009/02/ whats_killing_the_videogame_business.html; Development Costs Rise, So Do Risks cnbc.com/id/35932496/As_Video_Game_Development_Costs_Rise_So_Do_Risks. Fritz & Alex Pham, reported to be almost $200 million. Ben Republic—The A Galactic Gamble Story Behind print.html?pagewanted=all&_r=0. 35568-nys_69-2 Sheet No. 126 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 126 35568-nys_69-2 35568-nys_69-2 Sheet No. 126 Side B 10/28/2014 12:36:12 , and 83 With the , CNET (Feb. 86 Additionally, Netflix, 85 82 Moore’s Law to Roll On for Another Decade , http://www.google.com/nexus/5 (last visited Dec. 31, 2013). , http://www.apple.com/iphone-5s (last visited Dec. 31, 2013); , http://www.netflix.com (last visited Dec. 31, 2013). , http://www.netflix.com (last visited Dec. , http://www.itunes.com (last visited Dec. 31, 2013). , http://www.itunes.com (last visited Dec. , http://store.steampowered.com (last visited Dec. 31, 2013). , http://store.steampowered.com (last note 19. To verify availability, the reader is encouraged to search (but note 19. To verify availability, the reader PPLE Like movies and music, video games have been customa- have been games video and music, movies Like Michael Kanellos, UNES OOGLE ETFLIX (Apr. 11, 2013, 3:00 AM), http://www.pcworld.com/article/2033671/ TEAM 81 now allow intellectual property distributors and customers distributors intellectual property now allow T , A I See , G 84 supra Changes in home computing have also decreased the produc- computing have also decreased Changes in home In economic parlance, the nature of intellectual property pro- In economic parlance, the nature ORLD 82. 81. available for download, see Envi- For an overview of the types of media 86.e.g., For a nonexclusive look at the capabilities of smartphones, see, 83. N 85. 84. S not download from) ThePirateBay.se and other popular torrent indexes, or simply not download from) ThePirateBay.se and to search for content using a search engine. sional, 600sources. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:587 \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 14 10-OCT-14 9:19 breaking-moores-law-how-chipmakers-are-pushing-pcs-to-blistering-new-levels.html. iPhone 5s Nexus 5 to engage in transactions without physical goods ever changing goods ever without physical in transactions to engage a book, of handing over the formality dispensing with hands, thus CD, or DVD. memory, and intellectual property. Processor, tion cost of digital of developing continue their torrid pace storage manufacturers cheaper computer components. more efficient and rily distributed through the sale of physical discs, which the user the discs, which physical sale of the through distributed rily con- copyrighted content to use the along with a license purchases iTunes, retailers like the disc. Online tained on 10, 2003, 2:27 PM), http://news.cnet.com/2100-1001-984051.html; Brad Chacos, 10, 2003, 2:27 PM), http://news.cnet.com/2100-1001-984051.html; Are Pushing PCs to Blistering New Levels Breaking Moore’s Law: How Chipmakers PCW capability to summon data from a wide repository of movies, T.V. capability to summon data from property’s equivalent of a shows, music, and games, intellectual neatly into one’s pocket. Ford manufacturing plant now fits of computing technology duction and the widespread availability in a zero marginal cost of and high speed Internet have resulted home computing has shaped the way people view media. Whereas has shaped the way people view home computing running software once had different devices for many consumers a single, porta- movies, and playing music, now programs, watching tasks. Our time is of accomplishing these ble laptop is capable instruments: of the lines between computing marked by a blurring tethered to the home is now port- the phone, once a fixed machine mathematical calculations, able and powerful enough to perform email, provide GPS navigation record pictures and video, access high quality videos from the (with a backup compass app), stream occasional phone call. internet, and, of course, take the Steam 35568-nys_69-2 Sheet No. 126 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 126 35568-nys_69-2 35568-nys_69-2 Sheet No. 127 Side A 10/28/2014 12:36:12 That is, That 87 (David R. Hen- IBERTY The grant of mo- 91 . & L (7th ed. 2008). CON E OF . EHAVIOR IBR L In copyright, the monopoly pe- In copyright, the B 89 in , http://www.econlib.org/library/Enc/Intellectual ICROECONOMICS AND available at Intellectual Property 88 , M RANK 17 U.S.C. § (2006). 302(a) The temporary monopoly control over the intellectual monopoly control over the The temporary See id. See id. See H. F 90 How then can creators be compensated for the effort ex- creators be compensated for How then can According to classical microeconomic theory, however, mo- According to classical microeconomic 87. property issues in economics, For an excellent introduction to intellectual 88. 89. 90. 91. For an overview of classical microeconomic theory and terminology, see OBERT see Stan Liebowitz, 2013]video games. and music, TV shows, movies, of production FILE SHARING? ILLEGAL MOTIVATES WHAT 601 solution is for a digital good? The traditional pended in producing distribute and li- the creator exclusive rights to the state to grant property. cense the intellectual \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 15 10-OCT-14 9:19 property compensates the creator for the effort and resources ex- the creator for the effort property compensates property creation of the good. Thus, intellectual pended in the to incentivize creativity. rights are designed inefficiencies. nopolies present certain market riod typically runs until the death of the creator plus seventy until the death of the creator riod typically runs years. nopoly power in this instance has the same effect as a price floor: nopoly power in this instance has able to keep the price artificially the creator of a digital good is production because of the grant of higher than the marginal cost of to the artificially high price, con- intellectual property rights. Due the good at a competitive price sumers who would have purchased inability to engage in mutu- abstain from consumption. The parties’ than the monopoly price leads to ally beneficial exchanges at less transactions forgone, a sure deadweight loss, mutually beneficial markets often occur in precisely sign of market inefficiency. Grey and consumers attempt to recover these circumstances, as suppliers engaging in illegal exchanges at some of the deadweight loss by price. For example, cigarettes prices lower than the monopoly it is essentially costless once a movie is filmed or song recorded to recorded or song is filmed a movie once costless essentially it is the perfect good. Under copies of that perfect create innumerable to con- of a good tends the price model of markets, competition classical of the good. So, of production the marginal cost verge on the no state intervention, that, with theory predicts microeconomic goods in a competitive property typical digital intellectual price for market is zero. derson, ed., 2008), Property.html. R 35568-nys_69-2 Sheet No. 127 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 127 35568-nys_69-2 35568-nys_69-2 Sheet No. 127 Side B 10/28/2014 12:36:12 93 CONOMIX , E = price. i 92 note 91. Cigarette Taxes vs. Cigarette Smuggling B. Demand Theory supra , refers to the dollar amount paid for the digital refers to the dollar amount paid 94 RANK F = quantity demanded, and P i ), i Catherine Rampell, See See generally In conclusion, the above production analysis reveals a central production analysis the above In conclusion, supply side theory is useful in describing the While production Access costs capture the opportunity costs associated with ob- Access costs capture the opportunity Although this theory is a good fit for many traditional markets, Although this theory is a good fit for digital intellectual prop- This Note proposes that demand Nominal price = f(P i 92. 93. 94. “Nominal price” is not used here to distinguish the dollar cost from the Q where Q (Jan. 10, 2013, 5:31 PM), http://economix.blogs.nytimes.com/2013/01/10/ cigarette-taxes-vs-cigarette-smuggling. Thus, 602 from in smuggled are often New York rate in high at a very taxed NYU Jersey. as New states, such lower-taxing ANNUAL SURVEY OF AMERICAN LAW theory, microeconomic under traditional of file sharers: motivation [Vol. 69:587 artifi- response to prices as a grey market can be seen file sharing there are While cost of production. above the marginal cially kept of pro- the marginal cost digital content, to developing real costs zero—preciselyduction is essentially price their where file sharers goods. demand theory property good transactions, of digital intellectual of con- treatment of the motivations allows a more comprehensive rational consumer demand theory posits a sumers. Traditional prices of goods. choices are based on the whose consumption \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 16 10-OCT-14 9:19 real cost in terms of inflation. Instead, this Note argues that “real cost” in the real cost in terms of inflation. Instead, this Note argues that “real cost” in context of file sharing should take into account factors other than the dollar amount paid for a good. content. Nominal price operates on demand in essentially the same content. Nominal price operates theory. way price does in traditional demand format and in a timely fashion. taining digital content in a usable through downloading, the ease The time it takes to obtain content presence of digital rights manage- of access and transferability, the format of the digital content can ment (“DRM”) software, and the other words, an access cost is an all contribute to access costs. In this note argues that it is essential to expand the theory of demand this note argues that it is essential understand the market for file using behavioral principles to better sharing. factors: nominal price, access costs, erty is best explained using four legal costs, and moral costs. 35568-nys_69-2 Sheet No. 127 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 127 35568-nys_69-2 35568-nys_69-2 Sheet No. 128 Side A 10/28/2014 12:36:12 = access i = nominal price, A i Similar to legal costs, moral costs Similar to legal 95 = moral costs. i IncreaseIncreaseIncreaseIncrease Decrease Decrease Decrease Decrease Changed Demanded Independent Variable Change in Quantity ) , i , M i , L i = quantity demanded, P i , A i = legal costs, and M i Access costs play a central role in the expanded theory of de- Access costs play a central role in Legal costs include the expected costs of enforcement actions costs of include the expected Legal costs a consumer are comprised of the disutility Finally, moral costs Together, these four factors give a more comprehensive under- four factors give a more comprehensive Together, these = f(P i 95. In rare cases, moral costs may confer positive utility on a consumer who Q where Q costs, L Nominal Price Access Costs Legal Costs Moral Costs feels that downloading illegally is a way of expressing political dissent or a form of feels that downloading illegally is a way of expressing political dissent or a form civil disobedience aimed at forcing the government to confront the issue of copy- right reform. mand. In the electronic age, access costs are becoming more and mand. In the electronic age, access regarding digital intellec- more important in consumers’ decisions may include the time lost by tual property goods. Access costs of access and transferability of file downloading the good, the ease provided by DRM software. formats, and the level of protection and authenticate software li- DRM software, designed to protect One recent controversy was censes, may be particularly intrusive. 2013] their use of and the consumers between that stands inconvenience FILE SHARING? ILLEGAL MOTIVATES WHAT content. digital litigating costs incurred in such as consumer activity, arising from 603 For illegal transactions, claims. copyright infringement and settling the aver- incurred in the amount of liability should equal legal costs perceived by the action multiplied enforcement age copyright legal sales, legal involved in such an action. For probability of being negligible. costs should be copyright law. feels for violating \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 17 10-OCT-14 9:19 should be negligible for a consumer engaging in a transaction that for a consumer engaging in should be negligible copyright law. does not infringe property goods. demand for digital intellectual standing of the Thus, The following table summarizes the effects of the independent vari- The following table summarizes ables on quantity demanded: 35568-nys_69-2 Sheet No. 128 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 128 35568-nys_69-2 35568-nys_69-2 Sheet No. 128 Side B 10/28/2014 12:36:12 , , http://www. This DRM This 96 , Jason Evangelho, In an era where 98 available at See, e.g. Diablo III Offline Play Crack Released in Beta Form Diablo III Offline Play Crack Released in 97 Nonetheless, many consumers, especially in the Nonetheless, many consumers, 99 Id. (Sept. 16, 2013, 2:41 PM), http://www.forbes.com/sites/jasonevangelho/ As in the Diablo III example, the legal method of distribution the legal method Diablo III example, As in the This expanded theory of demand helps explain certain con- This expanded theory of demand (July 2, 2012, 10:29 AM), http://www.geek.com/articles/games/diablo-iii-off 96. Matthew Humphries, 97. 98. of the BitTorrent protocol, see For a technical analysis of the efficiencies 99. must own and be able to operate a At the very least, PC game consumers EEK ORBES Build a Powerful ‘Battlefield 4’ Gaming PC for $750—SSD Windows 8 Included and F 604 con- Internet active an to require decision Blizzard’s studio game NYU III. game Diablo in its play single player for nection ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:587 license costs as copyright greater access be associated with will often consumers will ex- against piracy, but not all holders try to protect cut against ille- some consumers, access costs may perience this. For comfortable These users may feel most gal downloading. or from a fa- digital content at a physical retailer purchasing their of learning how they will perceive the process miliar online source; obtaining illegally as a high access cost to to use torrent downloads explore their op- Rational consumers who downloaded content. illegal file sharing that goods obtained through tions will often find to access than their legal counterparts—BitTor-are much less costly efficient ways to particularly are one of the most rent downloads download speeds users while conventional transfer data between remain limited. from online retailers, in contrast, \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 18 10-OCT-14 9:19 line-play-crack-released-in-beta-form-2012072. How Efficient is BitTorrent? (unpublished generally Gang Wu & Tzi-cker Chiueh, Stony Brook), article, State University of New York at ecsl.cs.sunysb.edu/tr/TR185.pdf. Additionally, there are many resources PC with sufficient skill to run PC games. designed to enable PC gamers to create their own PCs. 2013/09/16/build-a-powerful-battlefield-4-gaming-pc-for-less-than-750-ssd-and- windows-8-included. markets for movies, music, and TV shows, will be incentivized to- markets for movies, music, and of what they perceive to be a high ward legal downloading because learning curve to illegal downloading. digital intellectual property that sumption habits in the market for in the context of traditional de- seem counterintuitive when viewed consumers place high value on the speed of data transfer and abil- consumers place high value on the variety of devices with a variety of ity to utilize digital content on a strong motivators, espe- formats, these access costs are particularly tend to be sophisticated com- cially for PC game consumers, who puter users. G protection was extremely unpopular because it limited consumers’ unpopular because was extremely protection and a workaround on server availability, the game based access to created. was soon 35568-nys_69-2 Sheet No. 128 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 128 35568-nys_69-2 35568-nys_69-2 Sheet No. 129 Side A 10/28/2014 12:36:12 103 101 is being Game of Thrones a popular website that pro- a popular 102 note 13. , Season 3, priced at $29.99. , Season supra , http://www.amazon.com/movies-tv-dvd-bluray/ Thier, See MAZON , http://thepiratebay.se (last visited Dec. 31, 2013). , http://thepiratebay.se (last visited Dec. , http://thepiratebay.se (search for “Game of Thrones”; AY Game of Thrones Game of AY B B IRATE IRATE P P HE HE At the time of writing, the most popular TV show on DVD most popular of writing, the At the time 100 This expanded theory of demand also helps explain activity This expanded theory of demand 100. traditional demand theory assumes It may be argued, persuasively, that 103. T 102. T 101. Movies & TV, A the total number of downloaders worldwide is likely several orders of magnitude that the great majority of transactions occur legally, with criminal activity being the that the great majority of transactions occur the theory of demand must be expanded exception. This is yet another reason that where as much as 93–95%to understand the current state of file sharing, of trans- actions may occur illegally. This behavior is irrational under traditional demand theory—why irrational under traditional demand This behavior is in easily-accessi- pay $29.99 when the same good, would consumers the expanded is available for free? Under ble electronic format, quite explainable. however, this phenomenon is theory of demand, Pirate Bay, the reduced nominal price at The Despite the greatly the show are access costs of illegally downloading legal, moral, and consumers worry about illegal too great for some consumers. These downloading—either fear legal sanction or they feel because they bad about violating copyright law—and thus choose to pay for a Access costs may also help explain good they could obtain for free. consumers who continue to use le- these consumers’ behavior. The the kind who are unsophisticated gal methods of purchase may be and thus they perceive illegal with respect to illegal downloading, downloading to be more costly. have little to say about, including that the traditional theory would are similarly priced. At Comedy consumers’ actions when goods with Jon Stewart, dated February Central’s website, the Daily Show 2013] consummate who consumers example, for Consider, theory. mand FILE SHARING? ILLEGAL MOTIVATES WHAT de- traditional Under are cheaper. goods illegal sales when legal a good for to obtain with the capability no consumer mand theory, solely by is motivated because demand pay for it, free should 605 price. Pirate Bay, Internet is The Across the \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 19 10-OCT-14 9:19 distributed by 950 seeders and downloaded by 158 peers for free. seeders and downloaded by 158 distributed by 950 vides links to torrents. These links can be used by downloaders to These links can be used vides links to torrents. Using the tor- torrents on a BitTorrent client. find and download Pirate Bay, Season 3 of rent link from The at Amazon.com is at Amazon.com then click on “SE” to sort by number of seeders) (last accessed Feb. 14, 2014, 5:45 PM). Note that this number includes only active downloaders in the local swarm— larger. b/ref=topnav_storetab_mov?ie=UTF8&node=2625373011 (follow “Best Sellers” b/ref=topnav_storetab_mov?ie=UTF8&node=2625373011 5:35 PM). hyperlink) (last accessed Feb. 14, 2014, 35568-nys_69-2 Sheet No. 129 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 129 35568-nys_69-2 35568-nys_69-2 Sheet No. 129 Side B 10/28/2014 12:36:12 Thus, 106 = price of b , and P a Despite this, at the Pirate this, Despite 104 note 91, at 125. , http://thepiratebay.se (search for “The Daily Show”; , , (Comedy Central television broadcast Feb. 12, 2013), , (Comedy Central television broadcast b AY P Under traditional demand theory, users should theory, users traditional demand Under B D supra C. Cross-Price Elasticity of Demand , 105 /% a IRATE RANK = quantity demanded of good Q P a F D http://www.thedailyshow.com (click on “Full Episodes”) (last accessed http://www.thedailyshow.com (click on HE . b The Daily Show See = % The concept of cross-price elasticity of demand is helpful for The concept of cross-price elasticity As the above examples demonstrate, this expanded demand demonstrate, this expanded As the above examples Positive cross-price elasticity is associated with substitute Positive cross-price elasticity is 104. 105. T 106. a,b where Q good E available at on Feb. 14, 2014, 5:45 PM). 606 for free. to stream is available 12, 2014, NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:587 \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 20 10-OCT-14 9:19 examining to what degree nominal price is a factor in motivating examining to what degree nominal Cross-price elasticity of demand demand for illegal file sharing. quantity demanded of one good in measures the percent change in price of another good. response to a percent change in Bay, 1,605 users are seeding the same episode and 116 peers are 116 peers and episode the same seeding are 1,605 users Bay, it. downloading The ex- of watching. these two methods between be indifferent Moral and more insight. however, gives theory of demand, panded Pirate Bay; show from the the cut against downloading legal costs illegal file for the the primary motivator then, must be access costs, copy of the Central’s stream, a downloaded sharers. Unlike Comedy connection on any to watch without Internet show will be available and altered devices, can be ripped, converted, of the user’s media as higher resolu- available in higher quality, such with ease, may be free of advertisements. tion, and will be the conduct of more tools with which to evaluate theory provides average consumer intellectual property. As the consumers of digital of accessing con- with respect to methods becomes sophisticated Increasingly, become relatively more important. tent, access costs morality, but also not only about price, legality, and consumers care access their content. about how conveniently they can then click on “SE” to sort by number of seeders) (last accessed Feb. 14, 2014, 5:45 PM). goods—as demand for that good increases the price of a good falls, Conversely, negative cross- and demand for its substitute decreases. complementary goods. Goods with price elasticity is associated with considered independent. To mea- a cross-price elasticity of zero are illegal and legal download- sure the cross-price elasticity between in quantity of illegal downloads ing, this note estimates the change 35568-nys_69-2 Sheet No. 129 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 129 35568-nys_69-2 35568-nys_69-2 Sheet No. 130 Side A 10/28/2014 12:36:12 R a promi- 107 note 61. supra Finally, most studies have focused III. 109 A NOVEL EMPIRICAL STUDY A NOVEL EMPIRICAL , http://store.steampowered.com (last visited Dec. 31, 2013). ) using price changes from an online video game video an online from changes price ) using b TEAM S Oberholzer-Gee & Strumpf, Since then, however, the advent of cheap, high-speed In- Since then, however, the advent See See id. See 108 Examining data on cross-price elasticity within the expanded elasticity data on cross-price Examining This Note proposes to update some of the scholarship by focus- This Note proposes to update some Empirical studies on illegal file sharing age quickly and poorly. on illegal file sharing age quickly Empirical studies 107. 109. 108. ) using BitTorrent downloads and the change in price of legal in price change and the downloads BitTorrent ) using a 2013](Q FILE SHARING? ILLEGAL MOTIVATES WHAT (P downloads 607 \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 21 10-OCT-14 9:19 retailer. Cross- revealing. will be particularly demand framework theory of price effect of nominal isolation of the enables the price elasticity sale on Steam, games go on downloads. When on illegal ternet, the rising popularity of the BitTorrent sharing protocol, and ternet, the rising popularity of the computing devices, espe- the proliferation of internet-accessible changed the way consumers cially mobile devices, have profoundly there has been little consensus access digital media. Furthermore, on the effects of file sharing. shows, and movies, while ignor- on the downloading of music, TV ing a large component of file sharing—PC games. technology and, particularly, the ing on BitTorrent file sharing Note will also take a different downloading of video games. This work. Rather than examin- approach than most previous empirical on legal sales, this Note looks for ing the effect of illegal downloads the opposite—changes during price changes in in illegal downloads a hand-collected data set of Bit- legal distribution methods. Using drops of video games from the on- Torrent downloads during price the cross-price elasticity of line retailer Steam, this note estimates downloads. The result can eluci- demand between legal and illegal and inform policy designed to date the motivations of file sharers deal with illegal downloading. nent online video game retailer, the nominal price drops, but the game retailer, the nominal price nent online video costs between access costs, legal costs, and moral relative mix of cross-price elas- downloads does not change. Thus, legal and illegal is relative to the how important nominal price ticity can reveal other demand factors. Carefully crafted empirical studies focusing on traditional peer-to- Carefully crafted empirical studies about file sharing activity in the peer clients might reveal much 2000s. 35568-nys_69-2 Sheet No. 130 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 130 35568-nys_69-2 35568-nys_69-2 Sheet No. 130 Side B 10/28/2014 12:36:12 117 note (Jan. 6, When supra 111 REAK F (Feb. 9, 2011, Additionally, Chiang, 116 ORBES ORRENT See , F , T 115 Data on sales were hand-col- Data on sales were note 19. 114 , video games are fairly typical digi- , http://store.steampowered.com (last vis- , http://store.steampowered.com (last supra A. Data TEAM supra note 99 and accompanying text. For an estimate of The Master of Online Mayhem Additionally, Steam regularly has deals Additionally, Steam 113 supra Top 10 Most Popular Torrent Sites of 2013 Oliver Chiang, Evangelho, See See 112 The number of peers currently downloading the torrent was the torrent downloading of peers currently The number The results should be generalizable to other digital goods. As The results should be generalizable Price change data were obtained by tracking sales on Steam, a were obtained by tracking sales Price change data goods, PC games are a par- Of all digital intellectual property The quantity of illegal downloads was calculated using uTor- using was calculated of illegal downloads The quantity 110 110. is downloaded, the “update To avoid legal liability, once the torrent 111. to Alexa’s site rankings. Er- It is the most-visited torrent site, according 115. For more information, contact the author at: [email protected]. 116. Recently, PC games crossed the milestone of having 50% of total sales 114. For current sales, see S 117. 112.author at: [email protected]. For more information, contact the 113. mentioned in Section II.A, copyrighted file are downloaded. tracker” function is used. No parts of the nesto Van Der Sar, popular online retailer. Steam has been estimated to have a retailer. Steam has been estimated popular online 50–70%far outpacing its of the online game market, market share closest competitors. empirical study because data are ticularly promising subject of video games, which traditionally widely available. Unlike console a cartridge or CD), PC games have required physical media (like electronically. are now often distributed completely 608 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:587 \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 22 10-OCT-14 9:19 rent’s trackers, with torrent files downloaded from The Pirate from The files downloaded with torrent rent’s trackers, Bay. lected and are on file with the author. where the price of a game is dropped substantially, sometimes by as of a game is dropped substantially, where the price the original price. much as 90% of used as a proxy for quantity of downloads demanded. While com- demanded. While of downloads a proxy for quantity used as Bay is The Pirate data is not available, downloading prehensive engine. most popular torrent search likely the world’s the average PC gamer is likely to be computer-sophisticated and the average PC gamer is likely and illegal sources for games. aware of both legal retail providers multiple torrents of a game were available on The Pirate Bay, the of a game were available on The multiple torrents peers) was se- (by number of seeders and most popular torrent on file with the were hand-collected and are lected. The data author. 6:00 PM), http://www.forbes.com/forbes/2011/0228/technology-gabe-newell- videogames-valve-online-mayhem.html. ited Dec. 31, 2013). occur electronically, with no exchange of physical media. 113. PC game downloads, see Envisional, 2013), http://torrentfreak.com/top-10-most-popular-torrent-sites-of-2013-130106. 35568-nys_69-2 Sheet No. 130 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 130 35568-nys_69-2 35568-nys_69-2 Sheet No. 131 Side A 10/28/2014 12:36:12 B. Results and Analysis The games in the data set are hand-picked and thus subject to data set are hand-picked and thus The games in the Several days’ are averaged and time-shifted. Finally, the data of demand calculations The results for the cross-price elasticity only fluctuations in nominal Because this calculation captures 2013] costs high production by marked goods, property tal intellectual FILE SHARING? ILLEGAL MOTIVATES WHAT war- the data of several aspects costs. However, low distribution and a Pirate Bay constitutes Steam nor The First, neither rant caution. and illegal downloaders. market for legal share of the complete 609 elec- for legal and illegal popular options as the most Nonetheless, por- a substantial data represents the collected tronic distribution, on are often cross-listed torrents market. Furthermore, tion of the Bay’s torrents in- that tracking the Pirate popular sites, meaning a different site. who sought their torrents from cludes downloaders by what Game selection was mostly determined sampling bias. not undergo- to reduce in price. Thus, games games Steam picked not marketed like recent marquee titles and games ing Steam sales, survey of the The result is not a perfect on Steam, are excluded. one. market, but it is a fairly comprehensive illegal downloading each torrent were on the number of peers for worth of observations sale and during a five day win- collected and averaged during the effect in illegal downloads dur- dow after the sale. There was little In fact, a slightly positive ing the days that sales were announced. however, there was generally a pe- effect was measured. After this, illegal downloads were depressed, riod of five days during which downloading rate. Thus, the followed by a return to the original the five day period is matched change in illegal downloads during just before this period. with the price change occurring was estimated at 0.16. This indi- are shown in Appendix A. Elasticity price of legal digital games should cates that a 1% decrease in the in the number of illegal correspond with a 0.16% decrease to be significant at the 95% confi- downloads. This result was found dence level, using a one-tailed t-test. suggests that nominal price is not price, the low elasticity estimate file sharing—access,the only factor motivating illegal legal, and le- moral costs are also important for consumers choosing between gal and illegal downloading methods. Additionally, the outcome suggests that significant price discounts, even to the extent of pro- viding digital goods for free, will not completely curb illegal file sharing. This is consistent with the anecdotal observation that ille- \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 23 10-OCT-14 9:19 35568-nys_69-2 Sheet No. 131 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 131 35568-nys_69-2 35568-nys_69-2 Sheet No. 131 Side B 10/28/2014 12:36:12 USTRA- access A HE 119 , T Game of Thrones 118 As long as content 120 IV. Foxtel Triple Play of ‘Great Appeal’: Thomson Section II.B. notes 99, 117, and accompanying text. Section II.B. Additionally, by one recent industry estimate, 20% Section II.B. Additionally, by one recent MOTIVATIONS AND POLICY CONSEQUENCES See supra See supra See supra LIAN These results also speak to the role of access, legal, and moral legal, and to the role of access, also speak These results The preceding empirical and theoretical analysis has revealed The preceding empirical and theoretical that nominal price is not Although the empirical results reveal 118. 119. 120. (Sept. 25, 2013, 12:31 PM), http://www.theaustralian.com.au/media/foxtel- 610 pro- that are goods for digital even exist markets sharing gal file NYU cost. at no services distribution legal through vided ANNUAL SURVEY OF AMERICAN LAW for some of the demand able to explain price is only costs. Nominal [Vol. 69:587 combi- made up by some must be the difference illegal downloads; As argued earlier, moral costs. access, legal, and nation of \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 24 10-OCT-14 9:19 triple-play-of-great-appeal-thomson/story-e6frg996-1226726884826. three major motivations for the persistence of file sharing: the pric- three major motivations for the persistence cost of production, the high access ing of goods above the marginal and the relatively small effect costs associated with legal downloads, will examine these motiva- of moral and legal costs. This section shape the market for digital intel- tions and discuss how they might lectual property. it remains an important the only motivator for illegal downloads, average skill can reproduce most consideration. A computer user of at no cost. digital intellectual property goods costs tend to be higher for legal downloads, largely due to copyright largely due to legal downloads, to be higher for costs tend download speed. format restrictions, and protection measures, Moral tend to incentivize illegal downloading. Thus, access costs for legal on the other hand, tend to be negligible and legal costs, illegal moral and legal costs disincentive downloads. Thus, access costs are of conclusion, then, must be that downloading. The illegal file sharing. to the users who continue primary importance by access costs for and legal costs are outweighed Perceived moral to be less as a result, find illegal downloading many users, who, the hassle of access purchases. Thus, it appears that costly than legal the primary moti- nominal price or moral costs, is costs, rather than illegal downloaders. vation for many above the marginal cost of pro- creators continue to charge prices the goods for free will exist. duction, the incentive to reproduce may help curb the incentives Stricter legal penalties for file sharing of Australian consumers with digital access to HBO’s popular show of Australian consumers with digital access instead of or in addition to their legal downloaded the show illegally, either downloads. Nick Tabakoff, 35568-nys_69-2 Sheet No. 131 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 131 35568-nys_69-2 35568-nys_69-2 Sheet No. 132 Side A 10/28/2014 12:36:12 ET- ORBES Still , F Other 127 126 124 The proposed policy would have The proposed policy 122 (Feb. 25, 2013, 1:01 PM), http://www.forbes. The Problem with Apple’s Closed Apps Universe How Shedding Check-In DRM in the Xbox One Benefits How Shedding Check-In DRM in the Xbox ORBES You Can’t Build A PS4: Why Sony’s Next Console Is Truly You Can’t Build A PS4: Why Sony’s Next Console , http://www.hulu.com (last visited Jan. 2, 2014); N , F Users in these ecosystems will face much Users in these ecosystems will ULU 125 (June 19, 2013, 5:42 PM), http://www.forbes.com/sites/carol , Erik Kain, , Tim Worstall, Carol Pinchefsky, After a strongly negative reaction from prospective con- negative reaction from prospective After a strongly ORBES FLIX See id. See, e.g. See id. See id. See, e.g. See it is relatively more costly in terms of time and effort to ille- costly in terms of time and effort it is relatively more , F 123 Similarly, some software developers create closed ecosystems, Similarly, some software developers 121 126. 127. For current examples, see, e.g., HBO GO, http://www.hbogo.com (last 121. 123. 124. 125. 122. , http://www.netflix.com (last visited Dec. 31, 2013). (Aug. 31, 2012, 12:44 PM), http://www.forbes.com/sites/timworstall/2012/08/ 31/the-problem-with-apples-closed-apps-universe. visited Jan. 2, 2014); H Next-Gen and Your PC Isn’t particularly with the use of mobile devices like smartphones and particularly with the use of mobile tablet computers. 2013] But costs. legal perceived by raising reproduction for unlicensed FILE SHARING? ILLEGAL MOTIVATES WHAT to enforce. difficult and unpopular are often legal penalties these goods to their already be redesigning companies may Production ac- focus on limiting Some companies reproduction. disincentive 611 market for platforms. The of closed the requirement cess through because subject to piracy example, is less video games, for console of than the architecture more closed architecture is much console PCs; \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 25 10-OCT-14 9:19 pinchefsky/2013/06/19/how-shedding-drm-in-the-xbox-one-benefits-microsoft. required users to maintain internet connectivity at least once every maintain internet connectivity required users to even single-player to authorize the user to play twenty-four hours games. its policy and no announced that it would change sumers, Microsoft internet connectivity. longer require regular gally download and use a console game. Console developers have use a console game. Console gally download and stop the use of pi- closed architecture to help capitalized on this these measures. but many consumers resist rated and used games, DRM policy for backed off from an aggressive Recently, Microsoft Xbox One. its new console the higher access costs in accessing illegal downloads than the user of a higher access costs in accessing illegal These devices may direct users to- traditional personal computer. store and may even refuse to run ward a centralized application through the store. applications that are not authorized com/sites/erikkain/2013/02/25/you-cant-build-a-ps4-why-sonys-next-console-is- truly-next-gen-and-your-pc-isnt. Microsoft content creators have altered their delivery methods to provide free content creators have altered their on-demand TV services. distribution through websites or the products themselves to de- other content creators have altered 35568-nys_69-2 Sheet No. 132 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 132 35568-nys_69-2 35568-nys_69-2 Sheet No. 132 Side B 10/28/2014 12:36:12 128 ORK Yet Y , http:/ 133 EW , N PPLE Josh Lowen- , A See Ironically, this 130 How to Get DRM-Free PC , CNET (Apr. 21, 2010, 7:29 Anathema No More, ‘Breaking Bad’ Is Rede- Josh Lowensohn, (Sept. 25, 2013, 2:03 PM), http://www. See Netflix requires an active internet (2010), http://www.steamgames.com/steam What Tina Fey Would Do for a SoyJoy Many of the successful legal retailers Many of the successful ORBES 134 note 96. 132 , F http://nymag.com/news/features/51014. note 122. supra supra available at , Emily Nussbaum, , Jonathan Salem Baskin, , CNET (Mar. 16, 2010, 4:00 AM), http://news.cnet.com/8301- Humphries, This problem is especially acute in the market for PC especially acute in the market This problem is Pinchefsky, See 129 131 See Steamworks Brochure 2010 See iTunes Store: iTunes Plus Frequently Asked Questions (FAQ) See, e.g. See See, e.g. Ubisoft’s Controversial ‘Always On’ PC DRM Hacked Ubisoft’s Controversial ‘Always On’ PC DRM In addition to production-side concerns, access costs to con- access costs to concerns, to production-side In addition 133. 132. shipping all its games with a Game developer Ubisoft famously began 134. 128. 131. an active Internet connection to Blizzard’s Diablo III, which required 130. 129. ., Oct. 5, 2008, AG sohn, PM), http://news.cnet.com/8301-27076_3-20003120-248.html. Games: Just Wait was cracked a month later. 27076_3-20000506-248.html. The DRM newly developed DRM system in 2010. works/SteamworksBrochure2010.pdf. M 612 placement. product form of in the from advertising revenue rive NYU even for advertisers views positive generates placement Product ANNUAL SURVEY OF consum- all creators and obtained, but not is illegally when content AMERICAN LAW underly- modifies the product placement with the way ers are happy [Vol. 69:587 ing work. illegal in motivating importance to be of paramount sumers appear obtaining mate- the access costs of illegally file sharing. To increase requiring illegal provide strong DRM software, rial, some retailers work around these protections. downloaders to \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 26 10-OCT-14 9:19 authenticate the game every time a consumer played it, is an example of both authenticate the game every time a consumer of such software to arouse the ire of effective DRM software and the capability consumers. gamers, in which most consumers are sophisticated computer most consumers are sophisticated gamers, in which users—capable as a com- around most DRM protections of working munity, if not individually. of digital intellectual property have taken steps to reduce access property have taken steps of digital intellectual music track users with the ability to purchase costs: iTunes provides Netflix lets users stream television by track rather than as an album; devices at the user’s convenience; shows and movies on a variety of game information on a cloud and, Steam allows users to store between computers. server, allowing for seamless transition forbes.com/sites/jonathansalembaskin/2013/09/25/anathema-no-more-breaking -bad-is-redefining-rules-for-product-placement. these services still fall short of the convenience of illegal downloads: these services still fall short of the obscure format which restricts iTunes songs are provided in an their use on many devices; software can often make it much more difficult to enjoy the legal make it much more difficult software can often DRM-free leading some users to seek alternative, copy of a good, versions. fining Rules for Product Placement /support.apple.com/kb/ht1711 (last visited Dec. 29, 2013). 35568-nys_69-2 Sheet No. 132 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 132 35568-nys_69-2 35568-nys_69-2 Sheet No. 133 Side A 10/28/2014 12:36:12 , CNET (2011), IMEO , V A second strategy Such a strategy has 136 Metro-Goldwyn-Mayer Stu- 138 See with BitTorrent, Explained , http://en.wikipedia.org/w/index.php? (May 4, 2006), http://www.youtube.com/ UBE How to Boost Your Steam Download Speed IKIPEDIA T OU , W , Y , https://www.humblebundle.com (last visited Oct. 18, Until these services are as fast, convenient, and fast, convenient, services are as Until these 135 Such campaigns seek to disincentivize download- Such campaigns UNDLE B Nicole Cozma, 137 UMBLE Compare Piracy: It’s a Crime Finally, legal and moral costs appear to be weak motivators to- be weak motivators costs appear to and moral Finally, legal 135. 137. 138. H 136.specifically as a successor to Napster. Grokster, for example, was created (Oct. 8, 2012, 4:10 PM), http://howto.cnet.com/8301-11310_39-57528252-285/ how-to-boost-your-steam-download-speed, 2013] con- through to download users requires and, Steam connection; FILE SHARING? ILLEGAL MOTIVATES WHAT Bit- efficient more the much through than rather servers ventional protocol. Torrent 613 \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 27 10-OCT-14 9:19 ing by increasing the disutility felt by users who violate copyright the disutility felt by users who ing by increasing have created stronger moral in- law. Finally, some content creators offering discounted products bun- centives to download legally by Humble Bundle project is one dled with charitable donations. The to pay what they wish (relieving example: it offers users the chance obtain DRM-free games and pressure caused by nominal price), (substantially decreasing soundtracks through a torrent download of the price paid to charity (cre- access costs), and donate a portion legally). ating moral incentives to download flexible as using torrents, illegal file sharing will likely persist. illegal file sharing as using torrents, flexible change measures could but some policy downloading, ward legal their effectiveness. illegal penalty for the legal Increasing or increased crimi- larger statutory damages downloading through download- could strongly disincentive nal copyright enforcement to prove, however, in such proceedings are costly ing. Allegations Enforcement nature of BitTorrent clients. given the decentralized are more effective, websites and clients actions against centralized clients are created every day. but new sites and 2013). The Humble Bundle project uses a slider to let the consumer set several re- price levels, including how much of the sale price goes to the developer, the can tailer, and the charity. While it suggests a default level of spending, the user thus far only worked with lower-budget independent games, but its thus far only worked with lower-budget title=Comparison_of_BitTorrent_clients&oldid=587460256 (last visited Dec. 29, title=Comparison_of_BitTorrent_clients&oldid=587460256 2013). aims to increase the moral costs of illegal downloading. One adver- the moral costs of illegal downloading. aims to increase of America, for by the Motion Picture Association tising campaign infringement with viewers to equate copyright example, challenged stealing a car. watch?feature=player_embedded&v=K_vHwfDNGdg. http://vimeo.com/19545251. of litigation before the Supreme Court Despite its similarities, it took several years Court and Ninth Circuit and decided overturned the decisions by the District Grokster could be liable for copyright infringement. dios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). For a list of BitTorrent clients, see dios Inc. v. Grokster, Ltd., 545 U.S. 913 Comparison of BitTorrent Clients 35568-nys_69-2 Sheet No. 133 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 133 35568-nys_69-2 35568-nys_69-2 Sheet No. 133 Side B 10/28/2014 12:36:12 CONCLUSION The conclusions of this Note are inextricably linked with the linked with Note are inextricably of this The conclusions video game examining the market for Nonetheless, in pay as little as $0.00. Selecting an amount less than one dollar will reveal to the pay as little as $0.00. Selecting an amount less than one dollar will reveal to consumer a sad image of a starving independent game developer. 614as an example serve could downloads legal at encouraging success NYU distributors. content for major ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:587 previously, em- in which it is written. As stated age and technology quickly as comput- this area are obsolete nearly as pirical studies in will only The development of cloud computing ing technology. internet connec- In an age where faster hasten this obsolescence. allows consum- file sharing infrastructure tions and corresponding the traditional quality video and other large files, ers to stream high cease to be much of digital content will notion of “possession” use—copyrighted attempts to pro- will be in the cloud, and content to building castles in the air. tect it will be akin Note has endeav- the BitTorrent protocol, this downloading using to the scholarly discourse re- ored to make several contributions should continue to be relevant in garding illegal file sharing that of file sharing supply under the the near future. First, the analysis under the expanded demand the- production theory and demand evaluating the motivations of file ory will continue to be useful in the central role of access sharers. Additionally, the data indicating be relevant to policymakers de- costs to consumer decisions should copyright laws in the context of ciding how to shape and enforce Finally, this Note has attempted digital intellectual property goods. of markets governed by dis- to reveal some unique characteristics law, peer-to-peer file shar- crete, but overlapping regimes: copyright Understanding the motivations ing norms, and artistic creation. is essential to explaining how behind the actors in these regimes function, and how they may these markets formed, how they should keep these moti- change. Future scholars and policymakers how to regulate these regimes. vations in mind when determining \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 28 10-OCT-14 9:19 35568-nys_69-2 Sheet No. 133 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 133 35568-nys_69-2 35568-nys_69-2 Sheet No. 134 Side A 10/28/2014 12:36:12 0.16 (2.42)* Avg. Avg. Peers Peers Percent Percent APPENDIX A APPENDIX Retail Sale During After Change Change Cross $54.99 $27.50 86.00 66.75 0.22$39.99 $13.59 0.50 415.00 388.00 0.45 0.07 0.66 0.10 $39.99 $9.99 40.50$59.99 36.00 $39.99 814.10 0.11 880.85 0.75 -0.08 0.15 0.33 -0.25 $19.99 $4.99 95.00 103.50 -0.09 0.75 -0.12 Cross-Price Elasticity of Demand Data Elasticity of Demand Cross-Price Game Title Price Price Sale Sale Quantity Price Elasticity Total Average significance above the 95% confidence level. *One tailed t-test score, indicating statistical Darksiders IIMax Payne 3I am Alive $49.99From Dust $16.99 $39.99Rayman Origins 254.00 $13.59 1390.83Train Simulator 206.67 1400.50 $14.992013 $19.99 $5.09 $14.99 0.19 -0.01Assassin’s Creed $6.79 101.00 $3.74Assassin’s Creed II 0.66 87.00 0.66 50.67 40.00 $19.99Assassin’s Creed III $19.99 54.00 0.28 -0.01 $4.99 16.67 0.50Saint’s Row the $49.99 $4.99 $24.99Third 0.38 92.00 0.58 63.00 0.66 411.00 88.33 0.66 390.67 62.67 0.75 0.75 0.04 0.57 0.05 0.01 0.78 0.75 0.50 0.75 0.05 0.10 0.01 The Elder Scrolls V: BioshockGrant Theft Auto IV $29.99Dead Island $14.99Dead Space 2 754.20 $19.99Fallout: New Vegas 684.15 $9.99 $19.99Orcs Must Die 2 $19.99 0.09 102.10 $19.99 $9.99Bioshock 2 $9.99 100.20 $4.99 391.00 0.50 $14.99 137.50Amnesia: The Dark 143.50 367.50 0.02 $7.99 135.50 145.50 0.19 Darksiders 48.00 0.06 0.01 0.50 $19.99 -0.01 46.50 $4.99 0.50 0.50 0.04 0.75 111.00 0.03 0.12 100.00 0.03 -0.02 $19.99 0.47 $4.99 0.10 207.00 0.07 0.75 226.44 -0.09 0.13 0.75 -0.13 Men of War: Condemned Heroes L.A. NoireSkyrim $19.99 $4.99 458.00 368.00 0.20 0.75 0.26 Descent 2013] FILE SHARING? ILLEGAL MOTIVATES WHAT 615 \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 29 10-OCT-14 9:19 35568-nys_69-2 Sheet No. 134 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 134 35568-nys_69-2 35568-nys_69-2 Sheet No. 134 Side B 10/28/2014 12:36:12 616 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:587 \\jciprod01\productn\N\NYS\69-2\NYS205.txt unknown Seq: 30 10-OCT-14 9:19 35568-nys_69-2 Sheet No. 134 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 134 35568-nys_69-2 35568-nys_69-2 Sheet No. 135 Side A 10/28/2014 12:36:12 35568-nys_69-2 Sheet No. 135 Side A 10/28/2014 12:36:12 Side A 10/28/2014 Sheet No. 135 35568-nys_69-2 35568-nys_69-2 Sheet No. 135 Side B 10/28/2014 12:36:12 35568-nys_69-2 Sheet No. 135 Side B 10/28/2014 12:36:12 Side B 10/28/2014 Sheet No. 135 35568-nys_69-2 35568-nys_69-2 Sheet No. 136 Side A 10/28/2014 12:36:12 35568-nys_69-2 Sheet No. 136 Side A 10/28/2014 12:36:12 35568-nys_69-2 Sheet No. 136 Side B 10/28/2014 12:36:12 VALUE QUALITY SERVICE

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