Judicaturethe Scholarly Journal for Judges

ALSO: FEDERAL JUDGES & OPINION WRITING | THE RIGHT TO SELF-REPRESENTATION | OUT-OF-CONTROL POLICING?

VOLUME 101 NUMBER 3 AUTUMN 2017

JUDICATURETHE SCHOLARLY JOURNAL FOR JUDGES

Bold and persistent reform

Why pilot projects may be the surest – if not the fastest – way to ensure the success of civil rules amendments

Published by the Duke Law School Center for Judicial Studies Published by the Duke Law Center for Judicial Studies

DIRECTOR THE FEDERAL RULES OF CIVIL PROCEDURE SHOULD BE ABROGATED. I speak John K. Rabiej not of the criticisms of the rules as a failure to ensure the just, speedy, and inexpensive determination of litigation — though many distinguished lawyers and jurists have sadly moved in ACADEMIC DIRECTORS that direction. No, I direct my lament at those entrusted with the responsibility to ensure the Jack Knight vitality of the rules. Frederic Cleaveland Professor of Law and Political Science, Duke University Providing uniform procedures that are consistently followed throughout the country is the raison d'être of the federal civil rules. An individual in Texas should not be treated procedurally Mitu Gulati Professor of Law, Duke University differently than an individual in California with the same lawsuit. Over time, the rules have grudgingly accepted limited exceptions to address unique circumstances. But what was once a Margaret H. Lemos Robert G. Seaks LLB’34 Professor of Law, small pool of exceptions has now grown to a yawning chasm that is swallowing up the whole. Duke University More than 110,000 cases are pending in 20 mass-tort MDLs. That number represents 33 percent of the entire pending federal CENTER BOARD civil caseload. These cases implicate enormous financial stakes Carolyn Kuhl that affect the U.S. economy. Yet no civil rule provides uniform Judge, Superior Court of California, AS I SEE IT County of Los Angeles procedures that can be applied consistently to MDL litigation throughout the country. Instead, MDL transferee judges wield virtually total discretion under John W. Lungstrum Judge, U.S. District Court, District of Kansas the guise of pretrial management. Left largely to their own devices, transferee judges have been compelled to develop proce- Lee H. Rosenthal Chief Judge, U.S. District Court, dures out of whole cloth to manage complex problems that regularly arise. A hodgepodge set Southern District of Texas of practices has evolved that may have worked for some judges in certain cases but now are indiscriminately adopted by newly designated transferee judges, who most often are handling John R. Tunheim Chief Judge, U.S. District Court, their first MDL. Without rules or official guidance, these judges terminate nearly 90 percent District of Minnesota of the centralized cases, all done under a statute that was intended to centralize cases for pretrial purposes only, primarily discovery. The legal authority for much of their actions is not David F. Levi Dean and Professor of Law, self-evident. Duke University Laissez-faire advocates dismiss any need for new rules, contending that Rule 16(c)(2)(L) is all that is needed to establish legitimacy. That rule authorizes a judge to adopt “special procedures MANAGING EDITOR for managing potentially difficult or protracted actions that may involve complex issues, multi- Melinda Myers Vaughn ple parties, difficult legal questions, or unusual proof problems.” Based on this slender reed, they defend the status quo and MDL practices that: (1) establish CENTER COORDINATOR multi-million-dollar common-benefit funds, assessing hundreds of unwilling parties propor- Ann M. Yandian tionate costs, including parties in state-related litigation; (2) impose responsibilities on lead Editorial Assistants counsel that may conflict with fiduciary duties owed their clients; (3) recognize some judicial Leah Brenner, Glenn Chappell, responsibility to review the fairness of global settlements albeit without explicit authority to do Matt Eible, Lora Beth Farmer, so, unlike Rule 23 class action settlements; (4) create and amply compensate steering commit- Janse Haywood, Zachary Newkirk tees consisting of 10-20 lawyers who peremptorily manage the litigation on behalf of hundreds of other lawyers; (5) develop screening methods that filter out meritless complaints filed as tag-alongs; and (6) hold bellwether trials whose rulings pressure parties to settle with little fear of appellate review. All under the Rule 16 rubric. By this argument, we might as well dispense with the body of rules and have only a single rule that authorizes a judge to develop procedures JUDICATURE that are “just.” VOLUME 101, NUMBER 3 It is no surprise that experienced judges view the possibility of rules governing MDLs as obstacles, because they narrow that judge’s discretionary authority. Plaintiff lawyers are equally ISSN 0022-5800 satisfied with the existing MDL practices — though they, on occasion, are experiencing © 2017 Duke University School of Law. what defense lawyers have begun to experience, that is, a transferee judge bent on forcing an All rights reserved. This publication, or any part thereof, may not be reproduced without written permission unwanted settlement. These judges and lawyers join institutional forces, including the opposi- from Duke University. Views expressed herein do not tion of JPML members, which pose a formidable defensive array. necessarily reflect the views of Duke Law School Rather than cede the civil rules to certain irrelevance as the exceptions consume the whole, as an entity or of its faculty. better to end the downward spiral and start afresh. Requests for reprints may be sent to: Duke Law Center for Judicial Studies 210 Science Drive | Box 90362 Durham, NC 27708-0362 Phone: 919-613-7073 | Fax: 919-613-7158 Email: [email protected] John K. Rabiej, Director, Duke Law Center for Judicial Studies Online: judicialstudies.duke.edu JUDICATURE VOL. 101 NO. 3 IN THIS EDITION Departments 2 EDITOR’S NOTE, BRIEFS, HONORS 6 ON E-DISCOVERY WHAT WILL AI MEAN FOR YOU? George Socha

12 9 THE STORIED THIRD BRANCH GENTLEMAN JUDGE AND MAGNIFICENT MAN 64 Gene E.K. Pratter 75 REDLINES BULLET POINTS, YES. UNNECCESSARY DATES, NO. Features Joseph Kimble 76 BOOK REVIEW 12 OUT-OF-CONTROL POLICING – BOLD AND PERSISTENT REFORM ARE JUDGES TO BLAME? THE 2015 AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE Lee H. Rosenthal AND THE 2017 PILOT PROJECTS Jeffrey S. Sutton & Derek A. Webb 80 LASTLY KEEPING THE BALANCE THROUGH 22 CHANGING TIDES A CLASH OF CONSTITUTIONAL VALUES Stewart Walz WHEN SHOULD TRIAL JUDGES CONSIDER CONSTRAINING A DEFENDANT’S RIGHT TO SELF-REPRESENTATION? Stephen C. Leckar 32 NICE TRY WHEN CONTRACTS SEEK TO PREEMPT JUDICIAL DISCRETION J. Travis Laster & Kenneth A. Adams 40 WHETHER, WHEN, AND WHAT TO WRITE FEDERAL JUDGES AND OPINION WRITING (AN IMAGINED CONVERSATION) D. Brock Hornby 52 52 ROUNDTABLE: THE STATE OF THE JUDICIARY David F. Levi with Carolyn B. Kuhl, Margaret H. Lemos, H. Jefferson Powell, Don R. Willett & Ernest A. Young 9 64 32 CRUSHED SOCIAL SECURITY LITIGATION IN THE FEDERAL COURTS Jonah B. Gelbach & David Marcus JUDICATURE2 VOL. 101 NO. 3

“Everybody wants to rule the world.” — TEARS FOR FEARS SONG LYRIC (1985) EDITOR IN CHIEF “Why is judicial restraint so important? . . . [T]he simplest response is by all odds the best. Our system of JAMES GRIFFITH governance gives judges both life tenure and virtually the last word on a document that is at once supremely Oneida Family County Court – Rome, New York important and maddeningly inexact. Because the normal constraints on the exercise of power are lacking, America places a big bet that judges will restrain themselves. But this bet goes against eons of human BOARD OF EDITORS experience . . .” — J. HARVIE WILKINSON III, COSMIC CONSTITUTIONAL THEORY (2012), PAGE 7 DAVID JONES Chief Judge, U.S. Bankruptcy Court, IN A RECENT ARTICLE CONCERNING THE SUPREME COURT CONFIRMATION Southern District of Texas PROCESS, Justice Ruth Bader Ginsberg — my former law school professor — was recently quoted as saying she hoped that in her lifetime “we would DAVID NUFFER Chief Judge, U.S. District Court, District of Utah get back to the way it was.” The context was the observation that we had gone from the Senate having confirmed MEMBERS OF THE BOARD the superbly qualified (though polar opposites) Justice DINAH ARCHAMBEAULT Ginsberg nearly unanimously and Justice Antonin Scalia Judge, Twelfth Judicial Circuit Court, Illinois unanimously, to an essentially party line 54-45 vote to confirm the superbly qualified Justice Neil Gorsuch. As JENNIFER BAILEY Judge, 11th Judicial Circuit Court, Florida this trend has emerged, the commentariat regularly gnashes its collective teeth and rends its garments over the partisan CHERI BEASLEY Justice, Supreme Court of North Carolina nature of confirmation and resulting “politicization” of the Supreme Court (and other courts). FREDERIC BLOCKX What is often left undiscussed is the degree to which Judge, Commerical Court, Belgium this is a self-created problem for the judiciary as a govern- JOE BOATWRIGHT mental institution. Many (and perhaps most) of the cases Judge, Seventh Judicial District, Florida that reach the Supreme Court require the justices to decide, ROBERT BRUTINEL FROM THE at some level, whether to honor the decisions of the elected Justice, Arizona Supreme Court branches of government or instead to find some basis in the DAVID COLLINS EDITOR IN CHIEF Constitution not to. This brings to mind a remark from Justice, High Court of New Zealand another of my law school professors, Louis Lusky, who — MARK DAVIS despite being a law clerk to Justice Harlan Fisk Stone, a dedicated New Dealer, and a civil rights Judge, North Carolina Court of Appeals litigator —complained in his class that “the Warren Court seemed to think it should be running TIMOTHY DEGIUSTI the whole country.” Current complaints of supposed Supreme Court overreach come from both Judge, U.S. District Court, the left and the right (as in Citizens United and U.S. v. Windsor). Western District of Oklahoma On a moment’s reflection, it seems not only likely but inevitable that other governmental CHRIS DILLON branches will push back against appellate courts that increasingly intervene against legislative Judge, North Carolina Court of Appeals and executive action — that is, against the decisions of those branches that at least have the legit- BERNICE DONALD imacy of voter empowerment. The Supreme Court’s only democratic legitimacy comes from the Judge, U.S. Court of Appeals for the 6th Circuit elected branches’ appointment and confirmation of Court members — which, at the moment, is MYRON DUHART II precisely the commentariat’s complaint. Judge Wilkinson notes that no matter what judicial meth- Judge, Lucas County Court of Common Pleas, Ohio odology is currently in vogue on the left or right — living constitutionalism, originalism/textu- SPENCER LEVINE alism, political process theory, etc. — its judicial exponents tend to suffer from a lack of humility Judge, Fourth District Court of Appeal, Florida and an apparent willingness to clothe in (or, perhaps, disguise with) Constitutional garb their SARAH A.L. MERRIAM favored policy decisions. And the more judges of all ideologies feel unconstrained about running Magistrate Judge, U.S. District Court, the country (as Prof. Lusky might say), the more the political branches notice and understandably District of Connecticut strive to prevent judges on the “other team” from getting on courts. EMMANUEL ROBERTS Thus, one key to fulfilling Justice Ginsberg’s hope for a return to more consensus in the Justice, Supreme Court of Sierra Leone confirmation process would be more humility and a becoming institutional modesty on the part JENNIFER THURSTON of the Supreme Court. This would instantiate what Judge Wilkinson tellingly calls “the repub- Magistrate Judge, U.S. District Court, Eastern District of California lican virtue” of judicial restraint. This is not to say that the Supreme Court’s motto should be, “Don’t just do something; stand there!” Obviously, from time to time America needs principled ANN TIMMER Justice, Arizona Supreme Court brakes on the elected branches. But America also benefits from a Supreme Court that does not end up partisan, in appearance or reality. And jurisprudentially, there is no dishonor in a certain TRACIE TODD Judge, Circuit Court, Alabama deference to the decisions of other branches and levels of government that have the imprimatur of democratic enactment, especially if that restraint has the additional benefit of lessening the incentives for others to turn Supreme Court appointments into partisan brawls.

Subscribe online at judicialstudies.duke.edu/judicature James Griffith, Oneida Family Court Judge, Rome, New York JUDICATURE 3 BRIEFS from THE NATIONAL CENTER FOR STATE COURTS WE WANT TO HEAR FROM YOU!

ARTICLE SUBMISSIONS Judicature explores all aspects of the administration of justice and its improvement. We publish articles based on empirical research as well as articles based on fact and opinion from members of the bench, the bar, and the academy. Complete Securing Judges and Courts submission guidelines may be found Courthouse security is increasingly seen as a statewide, state-level issue on our website at judicialstudies. duke.edu/judicature. ften thought of as a local Scott Bales in 2015, the Court The committee’s recommenda- issue to be handled Security Standards Committee tions were adopted by the state’s LETTERS TO THE EDITOR Oexclusively by sheriffs was asked to survey existing court Judicial Council, and an attempt Email your letter, including your and law enforcement, court secu- security measures in the state and was made to create a statewide full name and title, with Attn: Editor rity is becoming more commonly to recommend statewide standards court security fund in Arizona’s in the subject line, to judicature@ viewed as a situation that requires for courthouse security, court- 2017 legislative session. The fund law.duke.edu. input and participation from local room security, and security officer was to have been financed via a 2 judicial leaders and state-level, training. Those recommendations percent increase on all court fees. JUDICIAL HONORS statewide plans and actions. Much included the development of state- Ultimately, however, the fund was We print select judicial honors, space of this change in attitude can be wide policies on a host of issues not adopted; it was replaced with permitting, and lists of active judges traced back to the 2005 shoot- ranging from entry screening prac- one-time appropriation in the celebrating milestone anniversaries ing incident in the Fulton County tices and equipment to requiring state’s budget for the year. of the date of their commission. Send submissions to judicature@ Courthouse in Atlanta, Georgia. the establishment of court security States appear to be divided on law.duke.edu; high-resolution Most recently this manifested in committees and a process by which the issue of how to pay for security (300 dpi) photos are welcome. two separate efforts in Arizona and all courts would have security at the state level. In some instances, Texas, both of which are examples assessments conducted on a regu- the debate is over whether a fund is THE STORIED THIRD BRANCH of how states are moving to address lar basis. Recognizing that court needed at all or if one-time appro- The Storied Third Branch invites these issues. security was no longer simply a priations from the state legislature judges to write a tribute to another local issue, the committee recom- would be sufficient. In other states judge who has, through example or Arizona: Statewide standards, but mended that a state court security the question has come down to mentorship, served as an inspiration a question of funding fund be created to assist local courts control: Indiana’s legislature in 2014 to colleagues on and off the bench. Created by an administrative order in purchasing security equipment and 2015, for example, debated the See details at judicialstudies.duke. edu/judicature. issued by Arizona Chief Justice and improving existing systems. creation of court security fund(s) using 4 BRIEFS4 VOL. 101 NO. 3

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proceeds from fees on civil and crim- Administration (OCA) and the Texas or rules issued by the state’s court Creation of a State-Level Judicial inal cases. The House’s version would Commission on Law Enforcement of last resort. The powers of these Security Division: Tasked with have placed money into a state- (TCOLE). The commission must then committees vary, with some serving providing guidance to state court wide court security fund controlled certify that a person has completed only in an advisory capacity while personnel on improving security for by the Indiana Supreme Court; the the course. The law is similar to one others are able to set courthouse each court, the Division is to be part Senate wanted county-based funds enacted in Arkansas in 2007, which practices and procedures. of the Office of Court Administration. controlled by county officials. gave the state’s Commission on Court Incident Reporting: A Now, most states have a similar The funding source has been Law Enforcement Standards and Texas law passed in 2007 required state-level office attached to either an issue elsewhere, too; when Training and Administrative Office that local administrative judges the administrative office of the the Maine Courthouse Security of the Courts responsibility for the provide written reports on court- courts or the supreme court/court of Fund was introduced in 2005, it court security curriculum. Kentucky’s house security incidents to the Office last resort itself. was to have been funded via a 7 2008 law goes further, specifying of Court Administration. The 2017 Public Release/Availability of percent tax on the sale of firearms that the state’s law shifts this respon- Personal Information: Texas law had and ammunition. That plan was Certified Court STATES sibility to the sheriff, already removed some of a judge’s scrapped in favor of appropria- Security Officers constable, or other law personal information (including tions from the legislature. Other Training Academy APPEAR TO enforcement agency home address, family information, states have opted for fee-based must include a BE DIVIDED providing security for etc.) from public records. The new law funding systems, such as $5 fees minimum of 29 ON THE the court. It also requires removes personal information from imposed on civil and criminal specific areas of ISSUE OF that the presiding judge an expanded list of agencies that are cases, sometimes coupled with training, ranging HOW TO of the court in which the covered to include entities such as state appropriations. from courtroom incident occurred receive local voting registrars. It also specifies protocol and PAY FOR a copy of the report. that “judge” includes local, limited Texas: Judge Julie Kocurek Judicial disturbances to SECURITY Tracking the number jurisdiction judicial officers such as and Courthouse Security Act protecting juries. AT THE of security incidents in justices of the peace and municipal In 2015, Texas District Court Judge Court Security STATE LEVEL. courthouses has been court judges as well as retired judges Julie Kocurek was the victim of an Committees: a challenge for years; and quasi-judicial officers such as attempted assassination in her Requires each trial court to create in many states, data is either not court-appointed magistrates. home driveway. In October 2016, a court security committee made collected on the number of inci- This question of who is and is the state’s Judicial Council released up of, at a minimum, the presiding dents or, if it is collected, it remains not a “judge” for purposes of laws a review of court security in the judge or local administrative district at the local level and is not reported that seek to protect this personal state, 10 years after an initial report judge, local law enforcement, and to a state entity. At present, there information was also being recommended statutory changes someone from the county commis- remains no national reporting or debated in Illinois. For example, to improve the situation. In 2017, sion or municipal government. For data collection system. Debate in 2012 Illinois enacted a Judicial the Texas legislature enacted the county-level courts and committees, over who should be responsible Privacy Act that addressed the Judge Julie Kocurek Judicial and seats are designated for additional for reporting and collecting such issue of protecting the information Courthouse Security Act, including judges as well as prosecutors. The data is also common, as seen in the of “judicial officers.” In 2017, the several provisions that have already committees are to adopt court secu- Texas case where the responsibility legislature amended the definition appeared in other states. rity policies and procedures and shifted from a judge to law enforce- of that phrase to specifically include Certified Court Security Officers make recommendations to local ment. Other states put the onus former and deceased judges. Requirement: Anyone assigned government for needed court secu- on court staff/employees to report to duties as a court security offi- rity expenditures and resources. incidents directly to their state court — WILLIAM E. RAFTERY blogs cer must take specialized training Several states have adopted simi- administrator through the use of about state legislation affecting developed by the Office of Court lar requirements either by statute judicial-branch reporting systems. the courts at gaveltogavel.us. JUDICATURE 5

JUDICIAL HONORS ANTHONY J. SCIRICA was ANDRE M. DAVIS, former Fourth outstanding contributions to the West Virginia Second Judicial awarded the American Inns of Court U.S. Circuit Court of Appeals judge, field of judicial administration. Circuit Judge DAVID HUMMEL Professionalism Award for the Third received the John Marshall Award was honored as the Judge of Circuit. He from the The Association of Black Judges the Year by the West Virginia served as American Bar of Michigan awarded Michigan Association for Justice. Hummel chief judge of Association Supreme Court Justice KURTIS has served as a circuit judge since the U.S. Court Judicial T. WILDER the Honorable Harold his 2008 election. of Appeals for Division Hood Award, which is granted to a the Third Circuit from 2003 to 2010 and the Standing Committee on judge who “exemplifies integrity Indiana Supreme Court Justice and took senior status in 2013. the American Judicial System. and dedication to equal justice.” ROBERT RUCKER received the Davis retired in August to become Sagamore of the Wabash, one of Associate Justice JOSEPH MALTESE Baltimore’s city solicitor. U.S. District Court Magistrate Judge Indiana’s highest civilian honors. He of New York’s Appellate Division, NANCY JOSEPH (Eastern District of retired after 18 years on the court. Second Judicial Department, 14th Judicial Circuit Judge Wisconsin) was named one of the received the Rapallo-Scalia Award CHRISTOPHER N. PATTERSON was Milwaukee The Hofstra Maurice A. Deane for outstanding achievements by honored by the Florida Bar as its Business School of Law honored Nassau Italian-American lawyers and jurists. Justice-Teaching Judge of the Year. Journal’s County New York Supreme Court The award recognizes dedication in “Women of Judge DENISE SHER, Suffolk The Mississippi Bar Foundation teaching Florida students about the Influence.” County Supreme Court Judge awarded the Law-Related Public government and judicial system. The award DENISE F. MOLIA, and U.S. District Education Award to Forrest County recognizes the city’s women who Court Judge JOANNA SEYBERT Court and Youth Court Judge The American Bar Association are making a positive difference. (Eastern District of New York) as MICHAEL W. MCPHAIL. McPhail awarded California’s Chief Joseph helps to expose middle and Outstanding Women in Law. has served as a youth court judge Administrative Law Judge KAREN high school students to legal and for 33 years. V. CLOPTON the Robert B. Yegge judicial careers. Award in recognition of her

DENNIS G. JACOBS years years years U.S. Court of Appeals 35 30 25 for the Second Circuit E. GRADY JOLLY JERRY EDWIN SMITH PAUL J. BARBADORO IRENE PATRICIA MURPHY KEELEY U.S. Court of Appeals U.S. Court of Appeals U.S. District Court for the U.S. District Court for the Northern for the Fifth Circuit for the Fifth Circuit District of New Hampshire District of West Virginia MICHAEL STEPHEN KANNE JOSEPH PETER STADTMUELLER EDWARD EARL CARNES PAUL JOSEPH KELLY, JR. U.S. Court of Appeals U.S. District Court for the U.S. Court of Appeals U.S. Court of Appeals for the Seventh Circuit Eastern District of Wisconsin for the Eleventh Circuit for the Tenth Circuit NATHANIEL M. GORTON LEE HYMAN ROSENTHAL U.S. District Court for the U.S. District Court for the District of Massachusetts Southern District of Texas CAROL E. JACKSON URSULA UNGARO Congratulations to these judges (active status) who are celebrating U.S. District Court for the U.S. District Court for the

milestones milestone anniversaries of their commission dates. Eastern District of Missouri Southern District of Florida 6 ON e -DISCOVERY VOL. 101 NO. 3

“ARTIFICIAL INTELLIGENCE In early 1956, two Carnegie IN THE LAW” should be the Mellon University researchers tagline for what’s next in legal constructed a working artifi- technology, if coverage in the cial-intelligence machine, which legal press is any guide. Lawyers one of them described as “a think- and vendors alike are extolling ing machine.”4 AI’s virtues and touting how That summer the Dartmouth the use of AI will revolutionize Artificial Intelligence Conference the practice of law — or they What will was held, launching the field of are warning that AI is going to artificial intelligence.5 At the usher in the end of lawyers, the AI mean same time, McCarthy began practice of law, and even the developing LISP, the first artifi- judiciary as we know them. cial intelligence programming All too often, missing from for you? language, and from 1958 to 1962 these proclamations and rumi- he implemented the language nations is any meaningful and began applying it to prob- description of what AI is, where lems of artificial intelligence.6 it came from, and what it is likely to mean to identify relevant authorities in briefs, In 1963, artificial intelligence research for bench and bar at a practical level in the create nondisclosure agreements, auto- got a financial boost as the Advanced short to medium term. mate the review and approval of contracts, Research Program Association (ARPA, The concept of artificial intelligence and facilitate real estate due diligence. now known as DARPA) began to fund a was introduced in 1955. The basic idea Artificial intelligence (depending on range of AI and computer science efforts. is that computers might be able to learn, one’s definition of AI) also is used for The first recipients of this funding included and that they might be able to do things, discovery, most notably as the technology MIT, Stanford, and Carnegie Mellon.7 make decisions, and exercise judgment behind “predictive coding” and “technol- Advances ensued, accompanied, of based on what they learn. That concept ogy assisted review.” AI helps to find the course, by failures and setbacks. Here are has morphed over time, jogged down story in the data and to evaluate ESI to just a few of the advances: some dead-end alleys along the way, and suggest key issues, confidentiality, and • 1961: Checkers program, capable of led to more consternation — as well as overall case relevance. learning its own evaluation function, more optimistic anticipation — than is beats Connecticut state checkers presently warranted by the reality of AI. A Brief History of Artificial champion. Examples of various nonlegal imple- Intelligence • 1965: Development began on mentations of artificial intelligence can be The first electronic computer was intro- DENDRAL, one of the first appli- found all around us. Well-known appli- duced in 1940, followed the next year cations of artificial intelligence to cations include Pandora’s suggestions by the first programmable computer and problems of scientific learning, for songs you might want to hear, where then in 1944 by the first programmable specifically helping organic chemists “every Pandora station evolves with your American computer. The first commer- identify unknown organic molecules. tastes”; the Nest Learning Thermostat, cial computer, UNIVAC, appeared on the • 1966-1972: Mobile robot Shakey, which “automatically adapts as your life market in 1950.2 using limited ability to perceive and and the seasons change”; and Tesla cars, In 1955, John McCarthy, an assistant model its environment, performed which, with the Model 3, now “have the professor of mathematics at Dartmouth tasks such as planning, finding hardware needed for full self-driving capa- College, and three other scientists proposed routes, and rearranging objects. bility at a safety level substantially greater a summer research project on a novel topic • 1979: The Stanford Cart — a cart than that of a human driver.” that they called “artificial intelligence”: with four small bicycle wheels, Artificial intelligence is beginning The study is to proceed on the basis of the electronic motors, and a television to penetrate the legal world, but it still conjecture that every aspect of learning or camera — successfully crossed a is at the “innovator” and “early adopter” any other feature of intelligence can in prin- chair-filled room without human stages, having not yet crossed the chasm ciple be so precisely described that a machine intervention. into “early majority.”1 An early entrant is can be made to simulate it. An attempt will • 1997: IBM’s Deep Blue beat world Canadian startup Ross Intelligence, which be made to find how to make machines use chess champion Garry Kasparov. offers a legal research tool built on top of language, form abstractions and concepts, • 2016: Google’s AlphaGo beat top IBM’s Watson and is being used by at solve kinds of problems now reserved for professional Go player. least 14 law firms. AI also is being used humans, and improve themselves.3 JUDICATURE 7

TABLE 1: Survey of AI knowledge ing natural language, form of AI devices and services. Thirty- powering expert sys- four percent of respondents said they have RESPONDENTS never interacted with AI technology, yet SAYING AI DOES tems, and organiz- AI CAPABILITY ACTUAL STATUS THIS TODAY ing information into when asked about particular AI devices Ability to learn 57% categories based on in- and services, 84 percent said they used one puts provided to the or more of the technologies listed (see Table Solve problems 50% artificial intelligence 2 at left). Interpret speech 37% AI capability today program.9 Ability to replicate 35% General definitions AI Today human interaction of artificial intelligence Clearly, AI’s tendrils reach far today. Think logically 51% are easy to find, such Additional examples of self-proclaimed Play games 19% as this one from artificial intelligence offerings include Technopedia: “an area the following (and this list is just a small Run surveillance 18% AI capabilities of computer science sampling): on people progressively increasing that emphasizes the • Entertainment recommendations: Pandora; Replace human jobs 31% creation of intelligent Netflix; Spotify. Feel emotion 14% machines that work and • Smart home devices: Nest thermostats; Control your mind 8% AI capabilities unlikely in react like humans . . . .”10 Lifx color-changing light bulbs; Take over the world 10% the near future What actually const- August’s Smart Lock. itutes artificial intelli- • Recommendations from retailers: Amazon; TABLE 2: Survey of AI technology usage gence turns out to be Target; Watson used by Macy’s; surprisingly difficult Under Armour; 1-800-Flowers.com; RESPONDENTS WHO to define, however. The North Face; Sears. ENCOUNTERED TECHNOLOGY In a 2016 New York • Smart home assistants: Amazon’s Echo; AI DEVICE/SERVICE IN THE LAST YEAR Times Magazine article, Mark Zuckerberg’s Jarvis; Google’s Email spam filters 51% Gideon Lewis-Krause Home. Predictive search terms 46% pointed out one of the • Automobiles: Tesla, with self-driving Siri virtual assistant 36% challenges: “Artificial hardware on all cars; Google’s Waymo Online virtual assistant 31% intelligence, we believe, self-driving car project; Toyota’s Yui Facebook-recommended news 28% must be something concept car. that distinguishes HAL • Customer service: Cogito for customer Online shopping recommendations 28% from whatever it is a service, sales centers, and managerial Home virtual assistant 11% loom or wheelbarrow support; DigitalGenius to propose Reverse image searching 9% can do. The minute answers to KLM agents; the WeChat None of the above 16% we can automate Messenger bot deployed by China

PEGASYSTEMS SURVEY, HTTPS://WWW.PEGA.COM/AI-SURVEY a task, we down- Merchant Bank. grade the relevant • AI-driven concierge services: John Paul’s What is Artificial Intelligence? skill involved to one of mere mechanism Digitally-Enhanced Concierge; Pega For an initial definition of artificial intel- . . . . The goal posts for ‘artificial intelli- Self-Service Advisor; Mezi’s human- ligence, let’s return to the researcher gence’ are thus constantly receding.”11 assisted travel agent bot. who coined the phrase, John McCarthy: The results of a recent survey conducted According to his 2007 definition, artifi- by Pegasystems highlight the confusion AI for Lawyers cial intelligence is: over what artificial intelligence encom- There is no small amount of tooth-gnash- the science and engineering of making intelli- passes.12 Of 6,000 survey respondents, 72 ing over the idea that AI will eliminate gent machines, especially intelligent computer percent said they understood what AI is, 17 or at least reduce the need for lawyers programs. It is related to the similar task of percent said they did not, and 11 percent (and judges). More measured articles using computers to understand human intel- were unsure. When asked to choose from a are appearing in well-regarded publica- ligence, but AI does not have to confine itself list of possible AI capabilities, however, the tions such as The Atlantic (“Rise of the to methods that are biologically observable.8 respondents greatly underestimated which Robolawyers – How legal representa- ones are available today or are becoming tion could come to resemble TurboTax”), Examples of artificial intelligence in increasingly available (see Table 1 above). The New York Times (“A.I. Is Doing Legal action include, said McCarthy, playing Respondents also underestimated the Work. But It Won’t Replace Lawyers, games, recognizing speech, understand- extent to which they already use some Yet.), and the ABA Journal (“How artifi- 4 8 VOL. 101 NO. 3 cial intelligence is transforming the legal Compliance ARTIFICIAL INTELLIGENCE IS profession”). More dire predictions are easy HR’s Navigator to find as well: “Lawyers could be the next Suite, a human BEGINNING TO PENETRATE THE profession to be replaced by computers” at resources app LEGAL WORLD, BUT IT STILL CNBC; “Artificial intelligence closes in on developed in the work of junior lawyers” in The Financial conjunction IS AT THE “INNOVATOR” AND Times; and “Why Artificial Intelligence with Littler “EARLY ADOPTER” STAGES. Might Replace Your Lawyer” at OZY. Mendelson. While it is unlikely that AI will replace LawGeex lawyers any time soon, artificial intelli- (www.lawgeex.com) has an “artificial NexLP integrates with kCura’s Relativity gence is being deployed to help lawyers intelligence solution [that] helps legal (www.kcura.com/relativity/) for, among become more effective. Some examples teams automate the review and approval other things, evaluating electronically follow (although some may use a rather of contracts.” stored information. flexible definition of AI). Reed Smith uses an AI platform from And then in June, DISCO (www. Canadian startup ROSS Intelligence RAVN System (www.ravn.co.uk/) for real csdisco.com) announced the general avail- (www.rossintelligence.com/), founded in estate due diligence. ability of DISCO AI. According to the 2014, touts itself as “the world’s first digi- company’s press release, DISCO AI presents tal attorney.” ROSS is a legal research tool AI as Discovery Tool lawyers “with predictions for suggested built on top of IBM’s Watson. According Artificial intelligence has entered the document classifications (or tags) relevant to the company, “ROSS understands natu- discovery arena as well. Many claim that to particular aspects of a case, such as key ral language legal questions and provides “predictive coding” and “technology issues, importance, confidential informa- expert answers instantly . . . .” Law firms assisted review” are forms of artificial intel- tion, and overall case relevance.” using ROSS include BakerHostetler; Bryan ligence. There is a credible argument for the There also are, of course, myriad exam- Cave; Dentons; Dickinson Wright; Fenne- proposition that both supervised machine ples of e-discovery providers who claim their more Craig; K&L Gates; Kobre & Kim; learning and unsupervised machine learn- systems are powered by artificial intelligence Latham & Watkins; Salazar Law; Sedgwick; ing (one, the other, or both of which form but who don’t seem to publish detailed Simpson Thacher; Van Horn Law Group; von TAR, depending on whom you side with) explanations of what they mean by that. Briesen & Roper; and Womble Carlyle. are forms of AI. For now, however, we These are only the early fits and starts. Casetext (casetext.com/) has an AI- will set those technologies aside and look In the months and years to come, we are driven offering called CARA (Case Analysis briefly at two other AI implementations likely to see the ever-morphing field of Research Suite), which evaluates submit- specifically for e-discovery. artificial intelligence alter how the bench ted briefs to identify relevant authorities. First is NexLP (www.nexlp.com/), and bar get their work done, not so much CARA is used at over 100 law firms. which says it “uses artificial intelligence displacing attorneys and judges as deliv- Artificial intelligence from Neota Logic and machine learning to derive actionable ering to them greater capabilities for (www.neotalogic.com) powers Perfect insight from unstructured and struc- handling ever-growing troves of data. NDA, a tool for creating nondisclosure tured data.” The company’s Story Engine agreements. The company’s tools power can “[s]earch, analyze, and investigate — GEORGE SOCHA is the cofounder of EDRM, the Foley & Lardner’s Global Risk Solutions complex datasets to tell a story” as well e-discovery standards organization housed at Duke (www.foley.com/grs/), a Foreign Corrupt as “[a]ctively monitor communications to Law School, and director of BDO Consulting’s forensic Practices Act compliance app, as well as turn disparate data into decisive decision.” technology services. Learn more at edrm.net.

1 For more on the technology adoption life cycle, 4 Knight, supra note 2. (Nov. 12, 2007), http://www-formal.stanford.edu/ from which these terms come, see Geoffrey 5 See The Dartmouth Artificial Intelligence jmc/whatisai/node3.html. Moore, Crossing the Chasm: Marketing and Conference: The Next Fifty Years, https:// 10 Artificial Intelligence (AI), Techopedia.com, https:// Selling High-Tech Products to Mainstream www.dartmouth.edu/~ai50/homepage.html (last www.techopedia.com/definition/190/artificial-intel- Customers (1991; 2d ed. 1999 & 3d ed. 2014). visited Aug. 12, 2017). ligence-ai (last visited Aug. 12, 2017). 2 Heather Knight, Early Artificial Intelligence Projects: 6 See John McCarthy, History of Lisp, Stanford (Feb. 11 Gideon Lewis-Kraus, The Great A.I. Awakening, A Student Perspective, MIT (Aug. 2006) (edited by 12, 1979), http://www-formal.stanford.edu/jmc/ The New York Times Magazine (Dec. 14, Thomas Greene, Dec. 2006), https://projects.csail. history/lisp/lisp.html. 2016), https://www.nytimes.com/2016/12/14/ mit.edu/films/aifilms/AIFilms.html. 7 See Knight, supra note 2. magazine/the-great-ai-awakening.html. 3 J. McCarthy, M. L. Minsky, N. Rochester & C.E. 12 8 John McCarthy, , See Pegasystems, What Consumers Really Think About Shannon, A Proposal for the Dartmouth Summer What is Artificial Intelligence? Stanford (Nov. 12, 2007), http://www-formal. AI: A Global Study, Pegasystems, Inc. (2017), Research Project on Artificial Intelligence, Dartmouth https://www.pega.com/ai-survey. (Aug. 31, 1955), http://www-formal.stanford.edu/ stanford.edu/jmc/whatisai/whatisai.html. jmc/history/dartmouth/dartmouth.html. 9 See John McCarthy, Applications of AI, Stanford JUDICATURE THE STORIED THIRD BRANCH 9

J. WILLIAM DITTER, JR. SENIOR JUDGE, U.S. DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

he Eastern District of Pennsylvania is a large, collegial trial court where quick humor and timely touches of Thumanity are as highly valued as intelligence and integrity. Even though this court is one where these characteristics abound, most of our 32 currently serving district judges would name J. William Ditter, Jr., as first among equals with the qualities that practitioners and the public place high on the list for exemplary judges and human beings. But there is another reason to shine a light on Bill Ditter. Too often we extol people only after they cannot readily receive our words of appreciation. With the fortuitous opportunity to showcase a deserving judge, I have selected someone who, albeit like so many others, ought to know in real time the very high regard

PORTRAIT BY GARTH HERRICK, 2006, 42X36 INCHES, OIL ON LINEN. his friends and acolytes have for him and some of the reasons why I, among many, wish I could claim to be his relative as well as friend and colleague. Gentleman Judge The basics are impressive. Public service is in Bill’s bones. Bill Ditter is the and son of a “country lawyer”-turned-Con- Magnificent Man gressman who served for a decade until his death in 1943, the year Bill graduated BY GENE E. K. PRATTER from Ursinus College. Having become a member of the U.S. Naval Reserve in 1942, Bill entered active duty during World War II. He served again in Korea. In between, he earned his law degree from the University of Pennsylvania in 1948. Thereafter, he clerked for the common pleas judges of Pennsylvania’s 4 10 VOL. 101 NO. 3

From Bill Ditter I have learned that a judge should work calmly, with integrity, treating every human being in the courtroom — parties, lawyers, victims, offenders — with dignity. Perhaps next to fairness, the most important thing Bill has brought to the job is the respectful and dignified treatment of each person before him.

Montgomery County, where he later praise and honors that are bestowed upon he gave bribes, when he was in office he became an assistant district attorney and you in life.” took bribes . . . .” On the state court, Judge then first assistant D.A. while maintain- With his beloved wife of more than Ditter was similarly to-the-point in denying a busy private law practice with his 60 years, the late Verna B. Ditter, Bill ing custody to a mother who had treated “lawyer sister through the late 1950s and parented four sons who, in turn, have her children as inconvenient commod- early 1960s. He served six years as a state provided Bill with eight grandchildren ities. And he takes to task lawyers who court trial judge until his confirmation and several great-grandchildren. They habitually display insufficient care in their in October 1970 as a federal judge. He could not ask for a more devoted and lively professional work product. assumed senior status in 1986, and his 42 paterfamilias. His various hobbies have Of course, Judge Ditter has presided years of federal bench service continues included photography, writing poetry, over hundreds of other cases, mammoth unabated. Thank goodness it does. gardening, genealogy, softball, downhill or minor, all of which have received the Reminding us by example that service skiing, and beekeeping. More on that last talents of a judge who is an exemplar of takes many forms, in 1984 Judge Ditter one a bit later. ability, probity, temperament, and honor. helped incorporate the Historical Society Professionally, Bill Ditter loves the From Bill Ditter I have learned that a of our Court. From the Society’s incep- trial court — interacting with lawyers judge should work calmly, with integ- tion, Judge Ditter served on its board of and litigants, settling cases, presiding rity, treating every human being in the directors and as chairman of its import- over trials, writing opinions. Those priv- courtroom — parties, lawyers, victims, ant calendar committee, where he has ileged to watch Bill in action see clearly offenders — with dignity. Perhaps next taken special care to call to our collective that he believes trial judges have the to fairness, the most important thing Bill attention the many interesting commu- best job in the world. Certainly, no one has brought to the job is the respectful nities beyond our district’s population does it better, and those of us who try to and dignified treatment of each person centers. Judge Ditter served for many emulate Bill Ditter are better for it. He is before him. years on the Villanova School of Law revered by his many law clerks for whom He is a judge of uncommon courtesy Board of Consultors. Year in and year out, their service with him is a prized badge of and chivalry off the bench as well. Bill he has delivered guest lectures, received singular honor. never raises his voice or interrupts; he honorary degrees, and been selected for In Bill Ditter we have an enormously holds the door for others; always stands well-deserved public accolades from bar productive trial judge. Many of his cases and offers to pull out and hold the chair associations, educational institutions, and were tremendously significant, but Bill for any woman who chooses the seat next civic organizations. always acknowledges that every case is to him (and who wouldn’t so choose?) in Always a devout and humble partic- significant to the parties involved. He the judges’ lunchroom. Bill’s humor is dry, ipant in the work of his church, he has never describes the cases on his docket so witty, and very funny in a self-deprecat- taught Sunday School and been chosen that the listener will be impressed by the ing, never hurtful way. Bill’s manner is as often as a lay homilist for the congre- judge. Yet his work has been impressive. far from hubris as can be. The peerless “file gation. He charms as he teaches. Bill Early in his federal career, Judge Ditter clerk” in his memory pulls out a charm- has advised: “Three things of certainty masterfully engineered the Reading ing joke on any topic and on demand. His I learned from my late father: First, you Railroad bankruptcy. When he sentenced Christmas letters are legendary as diaries cannot climb a wall that’s leaning toward a prominent politician convicted of public of family and country life, recounting you. Second, you cannot kiss a girl who’s corruption, he minced no words: “Lying, an endless series of mild misadventures leaning away from you. And third, you cheating, and scheming were a way of marked by the foibles of human nature, cannot, with full grace due, accept the life for him . . . . When he was out of office all told with disarming detail. JUDICATURE 11

For most of us, however, the most “The remaining part of the farm income Judge Norma Shapiro (who never got memorable Ditter letters respond to judi- came from the sale of honey. Once again, these things wrong) that at the dinner cial bureaucratic inquiries. In one, Judge the bees [like the hog and the chickens] to mark his assumption of senior status, Ditter was reporting as the District’s that produced the honey did not live in our Judge Ditter reported that, on the day of Liaison Judge to the General Services actual place of residence. They had their his induction as a Common Pleas Court Administration for 1977, a year in the own quarters which we call beehives and judge, he and his wife Verna went to a still-early life of our “new” courthouse. while one or two from time to time may have country chapel to conclude the day with a Judge Ditter described it as a year of gotten into the house (a problem we did not prayer. The judge prayed that God would significant achievement with regard to have with either the hog or the chickens) we help make him a good judge and keep the struggles attendant to painting the did not make them feel welcome and tried him humble. Apparently, Verna quickly judges’ elevators doors, installing an to make reasonable efforts to exclude them. assured God it was only necessary to “art-sy” plaza water fountain as a way of Honey comes from nectar. I think that much make sure Bill was a good judge, because handling subterranean water that was of the nectar gathered by our bees was found she’d make sure he stayed humble. That causing building subsidence, balancing on other persons’ properties although I must indomitable pairing has had splendid the building HVAC by averaging (note admit I have made no real effort to trace it. success. Bill Ditter is a man who quietly the distinction from “balancing”) the In my judgment honey does not grow at all and effectively demonstrates every day temperatures in various unrelated parts nor is it manufactured. Therefore, it must that he understands and obeys the Biblical of the courthouse, and supporting the come under the heading ‘etc.’” admonition to do justice, love mercy, and structure from the top down in deference walk humbly with God. I, among many, to the location of Court of Appeals on The Chairman of the Committee thank all the powers-that-be for the priv- floors above the District Court chambers. sought no further explanation.1 What ilege of learning from our friend, Judge J. Periodically this letter is reissued on its better example of a judge’s craft could William Ditter, Jr. publication anniversary as a reminder of there be? the timelessness of many joys lurking in Though he rarely speaks of them, some GENE E.K. judges’ work environments. of his colleagues know how deeply felt and PRATTER has served The other classic for which Judge indelible certain painful personal experi- as a United States Ditter is honored by his appreciative ences have been for Bill. In each instance District judge for the colleagues is his priceless response to a he has borne, and still bears, them reso- Eastern District of follow-up inquiry from the Chairman of lutely and without complaint. His sacri- Pennsylvania since the Committee on Financial Disclosure fices are not worn as badges. He would 2003. seeking further explanation of $171.50 in shun martyrdom or anything that might “Farm Income” reported by the Judge on call attention to himself or impede his 1 The full letter is well worth reading and may his annual financial report. Specifically, service on the bench or at home. Rather, be read in toto in Mortals With Tremendous Judge Ditter was required to explain Bill’s life as a devoted husband, father, Responsibilities (St. Joseph University Press), recently published under the authorship of another whether one-half hog, a few dozen eggs, judge, friend, and community member of our Court’s superb jurists, our former Chief Judge and some honey were “grown, manu- serves as daily encouragement to the rest Harvey Bartle III. Alternatively, upon request, the factured, etc.,” at his place of residence. of us to strive to be better as we are glad author of this article will provide a copy of this corre- Judge Ditter adroitly disposed of the ham to greet each day. spondence gem. and eggs and then, zeroing in on the bees, Though I was not in attendance, responded: I understood from our late colleague 12 VOL. 101 NO. 3 BOLD AND PERSISTENT REFORM The 2015 Amendments to the Federal Rules of Civil Procedure and the 2017 Pilot Projects

BY JEFFREY S. SUTTON & DEREK A. WEBB JUDICATURE 13

AT 6 P.M. ON NEW YEAR’S EVE, intense devotion — while promising high The two pilot projects — an Expedited stress, solitary confinement, and guaran- Procedures Pilot and a Mandatory Initial 2016, AS MOST AMERICANS WERE teed criticism.”2 Discovery Pilot — propose additional SETTLING IN TO WATCH COLLEGE The job also is not static. New types of reforms designed to promote the goals of FOOTBALL GAMES OR PREPAR- cases, new ways of gathering and preserv- Civil Rule 1: “the just, speedy, and inex- ING TO GO TO A NEW YEAR’S ing evidence, and an ever-burgeoning pensive determination of every action and EVE PARTY, CHIEF JUSTICE JOHN caseload constantly add unanticipated proceeding.” And both confront the risk ROBERTS RELEASED HIS YEAR- stresses to the system. To keep up, district that, when courts fail to resolve cases in courts must be vigilant in updating the a speedy and inexpensive way, it’s fair to END REPORT ON THE FEDERAL way they handle their case load. Just as a question whether any such resolution can 1 JUDICIARY. THE THEME OF THE “lumberjack saves time when he takes the be just. 2016 REPORT WAS THE DISTRICT time to sharpen his ax,”3 district courts The two pilots take different paths. COURT JUDGE. must continually refine their approaches The Expedited Procedures Project The Chief Justice highlighted the to stay on top of a daunting docket. requires litigants and judges to handle distinct challenges district court judges The Chief Justice mentioned two the discovery phase of each case more face. Working mostly outside the public ax-sharpening devices in his report: the promptly through firm deadlines: a eye, they “stand alone and unassisted,” 2015 amendments to the Federal Rules of cap on the amount of time for discov- carrying out their “crucial role” as the Civil Procedure and the 2017 pilot proj- ery, a requirement that judges promptly principal trial judges, perhaps indeed ects authorized by the Judicial Conference resolve dispositive motions, and time the principal judges, of the federal court of the United States to test other initia- limits for the final dispositions of cases. system. Tasked with an enormous range tives designed to improve the efficiency The Mandatory Initial Discovery Project of responsibilities, an effective district and fairness of civil litigation.4 requires initial disclosure of information court judge must be a “jack of all trades.” The 2015 amendments include several helpful and harmful to the parties at the Inside the courtroom, they serve as a reforms intended to streamline discov- outset of the case and without prompting “calm central presence,” making eviden- ery and case resolution. They place a by formal discovery requests. tiary rulings and resolving motions proportionality limit on discovery. They Each pilot project has historical roots “without the luxury of calm consideration encourage district judges to meet promptly worth recalling. Complaints about discov- and research in the quiet of chambers.” with the lawyers once the complaint is filed ery are not new. And efforts to address Outside the courtroom, district court to confer about the needs of the case and those complaints have come in many judges confront a “daunting workload” to put together a case management plan. forms. The failures of two earlier reform of some 500 cases waiting in the wings They suggest ways to expedite the reso- efforts, in 1980 and 1993, offer helpful and must therefore be able administrators lution of pretrial discovery disputes. And lessons for today’s initiatives. Of special and astute and creative problem solv- they clarify the important issues relating to note are the dissenting statements of ers as well. On or off the bench, the job the preservation and loss of electronically Justices Lewis Powell and Antonin Scalia “requires long hours, exacting skill, and stored information.5 in response to those efforts. 4 14 VOL. 101 NO. 3

Before describing the dissents and their with abuse, whether through unreasonable a trolley car or horse and buggy to the relation to the 2015 Rules Amendments discovery demands or opposition to reason- Minnesota State Capitol to hear Pound’s and the 2017 Pilot Projects, a word (or two) able discovery demands. An exponential speech. But by 1976, the trolley car was is in order about the Rules Enabling Act growth in discoverable information did not gone and parking meters had replaced of 1934. The Act empowers the Supreme help. As the price of broad discovery grew hitching posts. “Perhaps what we need Court to “prescribe” rules of practice and in terms of time and money, it became now,” Burger added, “are some imagina- procedure for the federal courts. It delegates easy to question the cost-benefit tradeoff. tive Wright brothers of the law to invent responsibility for working out the details Rather than providing a preliminary X-ray and Henry Fords of the law to perfect of those rules to the Judicial Conference of of the merits of the parties’ claims, as orig- new machinery for resolving disputes.”19 the United States, which in turn delegates inally intended, discovery had become a Pound had worried that “we have been that responsibility to a standing committee “self-contained universe with a life of its tinkering where comprehensive reform and various advisory committees composed own.”10 If broad discovery had been the is needed.”20 Burger called upon the of experienced judges, lawyers, and law “Cinderella of changes” in the Rules of legal community to seek “fundamen- professors. After the rules committees Civil Procedure of 1938, warned Professor tal changes” and “major overhaul” rather complete their work, typically in two to Arthur Miller, the “carriage ha[d] turned than to settle for mere “tinkering.”21 three years’ time, the Supreme Court must into a pumpkin” by the 1970s, requiring Burger’s call for an overhaul set several approve the rules. After that, the Court “major changes” if the rules were ever “to wheels in motion. After the meeting, transmits the proposals to Congress. And be a carriage again.”11 the ABA Board of Governors made three if Congress does not reject or alter them To address these concerns, Chief Justice suggestions: (1) narrow the scope of discov- within the seven months provided under Warren Burger convened the Pound ery from material “relevant to the subject the Act, they become law.6 Conference on the Causes of Popular matter involved in the pending action” In addition to approving or rejecting Dissatisfaction with the Administration to material “relevant to the issues raised rules proposals as a group, individual of Justice in April of 1976.12 The three- by the claims or defenses of any party”; (2) justices from time to time have issued day conference commemorated the 70th provide for a prompt discovery conference dissents. But it does not happen often, anniversary of Roscoe Pound’s 1906 if requested by any party; and (3) limit making the Powell and Scalia dissents address entitled “Popular Dissatisfaction interrogatories to 30.22 President Jimmy noteworthy and worth revisiting. with the Administration of Justice,” Carter’s Attorney General, Griffin Bell, which had kick-started efforts to create approved all three suggestions,23 and Chief BEYOND TINKERING: JUSTICE the new federal rules of procedure, and Justice Burger urged the Rules Committee POWELL AND THE VIRTUES OF met in the same room in the Minnesota to hold hearings on “any proposals the legal THINKING BIG State Capitol in which Pound had deliv- profession considers appropriate.”24 In the three decades after the Federal ered the speech.13 Burger lamented the The Advisory Committee on Civil Rules of Civil Procedure were created in “sporting theory of justice,” first crit- Rules moved to implement the sugges- 1938, judges, practitioners, and scholars icized by Pound, in which lawyers tions and published the three amendments largely supported the expansive opportu- prioritized private advantage over justice for comment. They received considerable nities for discovery made possible by the in the pretrial writ system.14 Even though feedback — and criticism.25 Those criti- new federal rules. The Supreme Court the Federal Rules of Civil Procedure had cizing the change in the scope of discovery told lower courts and practitioners that eliminated many forms of pleading-stage from “subject matter” to “issues” or the discovery rules should be accorded thrusts and parries, it had shifted “exag- “claims and defenses” pointed out that the a “broad and liberal treatment.”7 “No gerated contentiousness” to discovery.15 Advisory Committee had no evidence that longer can the time-honored cry of ‘fishing “[W]idespread complaints” had emerged the phrase “subject matter” caused courts expedition’ serve to preclude a party from among lawyers about discovery procedures to permit overly broad discovery.26 inquiring into the facts underlying his that were “being misused and overused.”16 In response to the negative comments opponent’s case.”8 Broad discovery makes The problem fell hardest on “small liti- from nearly 40 individuals and five bar a trial “less a game of blind man’s buff and gants” who could not afford to wait out groups, the Advisory Committee with- more a fair contest with the basic issues parties with “long purses” that protracted drew two of the proposals (narrowing and facts disclosed to the fullest practica- the early stages of litigation.17 Burger discovery to issues and limiting interrog- ble extent.”9 If a trial is a search for the called for a reexamination of the discovery atories to 30) and left in place the third truth, broad discovery was perceived as its rules, urging the Judicial Conference and (holding a discovery conference).27 The indispensable handmaiden. the Standing and Advisory Committees to Committee Note mentioned the “wide- But the thinking of the bench and bar reconsider them “boldly, not timidly.”18 spread criticism of abuse of discovery” began to shift by the 1970s. Many came At the turn of the last century, Burger and said that the Committee had consid- to view the pretrial discovery phase as rife observed, many lawyers would have taken ered limiting the scope of discovery and JUDICATURE 15

limiting the number of interrogatories.28 than general pleas for adaptation. “[T]he age of all civil litigation.”37 And “as every But “abuse of discovery,” the Committee changes embodied in the amendments,” judge and litigator knows,” the culprit was believed, “is not so general as to require as he saw it, “fall short of those needed discovery procedures.38 “Lawyers devote an such basic changes in the rules that govern to accomplish reforms in civil litigation enormous number of ‘chargeable hours’ to discovery in all cases. . . . In the judg- that are long overdue.”35 Powell dissented the practice of discovery.”39 In simple cases, ment of the Committee abuse can best be not from what the new rules included but discovery could take weeks. In complex prevented by intervention by the court as from what they left out. He discussed cases, it could take years. And the length soon as abuse is threatened.”29 With that, the steps by which the Committee had and cost discovery now regularly added the Rules Committees and the Judicial taken up the suggestions of the ABA to litigation stacked the deck in favor of Conference transmitted the revised pack- and rejected two of them after the public wealthy litigants at the expense of the “average to the Court for its review. comment period. At the same time that age citizen” for whom access into federal The Supreme Court approved the he acknowledged the Committee’s diffi- court was becoming cost prohibitive: package in 1980. Justice Powell, joined cult task in trying to develop a consensus [A]ll too often discovery prac- by Justices Potter Stewart tices enable the party with and William Rehnquist, greater financial resources dissented, marking the first to prevail by exhausting the time that three justices AT THE TURN OF THE LAST resources of a weaker oppo- had dissented from a rule CENTURY, BURGER OBSERVED, nent. The mere threat of delay proposal.30 The issues were MANY LAWYERS WOULD HAVE or unbearable expense denies not new to Justice Powell. TAKEN A TROLLEY CAR OR justice to many actual or In delivering the inaugural HORSE AND BUGGY TO THE prospective litigants. Persons Orison S. Marden Memorial or businesses of comparatively Lecture before the New York MINNESOTA STATE CAPITOL TO limited means settle unjust City Bar Association in 1978, HEAR POUND’S SPEECH. BUT claims and relinquish just claims he had warned that “we have BY 1976, THE TROLLEY CAR WAS simply because they cannot no more pressing duty than GONE AND PARKING METERS afford to litigate. Litigation to fashion effective remedies HAD REPLACED HITCHING costs have become intolerable, for the twin evils of civil liti- POSTS. “PERHAPS WHAT WE and they cast a lengthening gation — delay and expense. NEED NOW,” BURGER ADDED, shadow over the basic fairness of Abuse of discovery is a prime “ARE SOME IMAGINATIVE our legal system.40 culprit.”31 In Court opinions, Modest and halting reforms, he had made similar points. WRIGHT BROTHERS OF THE in his view, stood little chance of In one, he targeted “the wide- LAW TO INVENT AND HENRY removing this shadow. Worse than spread abuse of discovery that FORDS OF THE LAW TO that, they might delay effective is a prime cause of delay and PERFECT NEW MACHINERY reform for another decade. Because expense in civil litigation” FOR RESOLVING DISPUTES.” any single reform of a rule takes and highlighted the work of a minimum of three to four years the Pound Conference and to pass and confronts many block- what he saw as promising rule ing possibilities along the way, changes proposed by the ABA.32 “As the for all of the changes, he could not refrain the approval of minor changes diminishes years have passed,” he added in another, from critiquing its final work product: the resolve needed to make major changes “discovery techniques and tactics have “[W]hatever considerations may have down the road. In Powell’s words: “The become a highly developed litigation art prompted the Committee’s final deci- process of change, as experience teaches, — one not infrequently exploited to the sion, I doubt that many judges or lawyers is tortuous and contentious. Favorable disadvantage of justice.”33 “The glacial pace familiar with the proposed amendments congressional action on these amendments of much litigation,” he added in a third, believe they will have an appreciable will create complacency and encourage “breeds frustration with the federal courts effect on the acute problems associated inertia. Meanwhile, the discovery Rules and, ultimately, disrespect for the law.”34 with discovery.”36 will continue to deny justice to those least Justice Powell’s dissent from the 1980 Although some discovery was essen- able to bear the burdens of delay, escalat- rule proposal gave him an opportunity to tial to litigation, he added, the scope and ing legal fees, and rising court costs.”41 express these concerns in the context of duration of discovery had spread beyond Echoing Pound and Burger, Justice the concrete as opposed to the abstract, in reasonable bounds. “Delay and excessive Powell warned that the 1980 reforms the context of specific rules reforms rather expense now characterize a large percent- amounted to “tinkering changes” when 4 16 VOL. 101 NO. 3

true reform demanded a “thorough re-ex- would help lawyers see themselves not the type, form and timing of required amination of discovery rules.” He did not only as partisan advocates of their clients disclosures not be adopted until some stand alone. Others shared Powell’s disap- but also as officers of the courts. And it experience has been gained under these pointment with the Rules Committees’ would help them appreciate that they not various local plans.”60 tiny steps. The ABA Section of Litigation only had obligations to the discovery of Six weeks later, however, the Advisory called the amendments “an insufficient truth but also to the integrity of the judi- Committee reversed course again and response to a serious problem.”42 Scholars cial system — cousins to, if not siblings voted to proceed with the reform without wrote articles faulting the Advisory of, government lawyers in criminal cases waiting for local experimentation.61 As Committee for not going further.43 Others under Brady.50 one judge put it, experimentation would wrote pieces exploring how district court Proponents of the plan thought that push “the whole of the national amend- judges could pick up the pieces and control laying obviously relevant cards on the table ment process back to 1996.”62 At the discovery abuse on their own.44 Five years up front would have other downstream same time that the Advisory Committee out from the modest reforms of 1980, one benefits as well. It would permit parties to moved forward with an initial discovery scholar remarked that “Justice Powell evaluate their cases more promptly, lead- requirement, it narrowed the scope of it. proved prophetic. The 1980 amendments ing to early settlements in some cases and The revised amendment did not require did little to stem the rising tide of discov- earlier trials in others.51 It would stream- disclosure of anything that bears on a ery abuse because they did not address the line and expedite any additional discovery, claim but only information “relevant to underlying causes.”45 decreasing depositions and interrogato- disputed facts alleged with particularity ries in the process.52 It would save costs in the pleadings.”63 LOOKING BEFORE LEAPING: and weed out cases that should never have The Court approved the reform on JUSTICE SCALIA AND THE VIRTUES been filed in the first place.53 And it would April 22, 1993, but with several asterisks. OF EXPERIMENTATION increase access to justice by reducing Chief Justice Rehnquist, in his transmit- If the 1980 reforms suffered from a fail- financial barriers to court.54 tal letter to Congress, noted that the Court ure of resolve, the 1993 amendments In 1991, the Advisory Committee on approved only the procedures by which suffered from an excess of ambition. Up to Civil Rules sought public comment on the reform had been promulgated, not then, parties typically initiated discovery a proposal that required plaintiffs and the substance of the reform itself.64 Justice through formal requests. In an effort to defendants to disclose information that White penned a concurring statement, “accelerate the exchange of basic informa- was “likely to bear significantly on any the first concurrence in the history of the tion about the case and to eliminate the claim or defense.”55 Comments on the federal rules, echoing Rehnquist’s agnosti- paper work involved in requesting such proposal were not favorable. Of the 264 cism and questioning the Rules Enabling information,” the Advisory Committee written comments submitted to the Rules Act’s requirement that the Supreme Court proposed altering Rule 26 to require Committee, 251 opposed it.56 Seventy approve the handiwork of the Advisory parties to turn over certain core pieces of people appeared at two public hearings Committee and the Judicial Conference.65 information “relevant to disputed facts to testify against the amendment on Justice Scalia, joined by Justices alleged with particularity in the plead- behalf of businesses, bar associations, and Clarence Thomas and David Souter, ings.”46 As proposed, the amendment public-interest groups.57 The American dissented.66 Scalia worried that requiring required litigants to disclose the infor- Bar Association, the American Corporate lawyers to turn over information poten- mation regardless of whether it helped or Counsel Association, Public Citizen tially harmful to their clients’ interests hurt their side. Litigation Group, the American Civil was at odds with the adversarial culture Since the late 1970s, judges and schol- Liberties Union, the American Institute of of the American legal system.67 And he ars had been considering the merits of Certified Public Accountants, American noted that the reform had met with near mandatory initial disclosure, hoping it Trial Attorneys, the NAACP Legal Defense “universal criticism” “from every conceiv- might prompt a cultural shift among Fund, the Defense Research Institute, and able sector of our judicial system,” a set lawyers.47 The “sporting theory of the Product Liability Advisory Council all of criticisms that initially prompted the justice,” thought Pound and Burger, had opposed the amendment.58 Advisory Committee to pull the reform permitted, perhaps facilitated, a legal At the close of the public comment back “in favor of limited pilot experi- culture that shortchanged the prompt and period, the Advisory Committee recon- ments” before they decided, six weeks later fair resolution of disputes.48 The result sidered the proposal and opted to remove and without further public comment, to was an approach to discovery that often the initial disclosure provision.59 The recommend a revised rule.68 imposed additional costs without benefit proposed Committee Note said that Justice Scalia focused his criticisms and undue process without gain.49 further local experimentation was needed on timing and experience. He main- Mandatory initial disclosure, it was before proceeding further: “It is appropri- tained that such a “novel” revision of hoped, might address these problems. It ate that any national standard prescribing the discovery rules should not be under- JUDICATURE 17

taken without testing through local pilot turn over all information at the outset of might have been in place by 1998 — a projects.69 In contending that the amend- the case “relevant to disputed facts alleged timeline that may have looked slow in ments were “premature,”70 he used the with particularity in the pleadings.” 1993 but looks positively swift today. reformers’ words against them. “It seems With that, the 1993 reforms came to me most imprudent to embrace such a to an end. By pushing for bold reform THE 2015 CIVIL RULES radical alteration that has not, as the advi- against widespread opposition, armed AMENDMENTS AND THE 2017 sory committee notes, been subjected to with anecdotes and testimonials but with- PILOT PROJECTS any significant testing on a local level.”71 out empirical data based on local testing, At first glance, the themes of Justice Instead of waiting for the results of a the Advisory Committee accomplished Powell’s 1980 dissent and Justice Scalia’s three-year pilot project, the Advisory little. Justice Scalia had no problem 1993 dissent point in opposite direc- Committee preferred “to subject the tions. A recommendation that the entire federal judicial system at once Rules Committees act boldly and to an extreme, costly, and essentially promptly to rectify problems with untested revision of a major compo- HAD THE ADVISORY civil discovery is difficult to square nent of civil litigation. That seems to COMMITTEE TAKEN THIS with a recommendation that the me unwise. Any major reform of the ROUTE, HAD IT TESTED Committees conduct local trials of discovery rules should await comple- THE NEW REGIME OF significant reforms before adopting tion of the pilot programs authorized MANDATORY INITIAL them. The former gets things done; by Congress, especially since courts DISCLOSURE LOCALLY the latter is a recipe for delay and runs already have substantial discretion to the risk of waiting too long to imple- control discovery.”72 FOR THREE YEARS FROM ment any reform at all. Justice Scalia was not the only one 1993 TO 1996, A MORE But the 2015 Civil Rules to criticize the rulemakers’ refusal to ENDURING REFORM, ONE Amendments and the 2017 Pilot rely on pilot projects. Professor Linda WAY OR ANOTHER, MIGHT Projects, when examined together, Mullenix observed that the Advisory HAVE BEEN IN PLACE BY embrace essential kernels of wisdom Committee had little empirical 1998 — A TIMELINE THAT reflected in both perspectives. Before data to draw upon in formulating MAY HAVE LOOKED SLOW describing these reforms in more its rule.73 And Professor Stephen IN 1993 BUT LOOKS detail, it’s worth remembering why Burbank criticized the rulemakers discovery reform remains as essential for showing a “studied indifference POSITIVELY SWIFT TODAY. today as it was in 1980 and 1993 — to empirical questions.”74 perhaps more essential today than it While Congress allowed the ever has been. amendment to go into effect on Dec. 1, with the idea that “[c]onstant reform Consider these observations and ques- 1993, just barely,75 the reform had a brief of the federal rules to correct emerging tions about American civil litigation life. It remained unpopular. Anticipating problems is essential.”78 But in carrying circa 2017: that some district courts might not appre- out that mission, Scalia emphasized the • Broad civil discovery may well have ciate the reform, the Advisory Committee importance of looking before leaping— made sense in 1938, permitting each included an opt-out provision. Within four that the Rules Committees and Judicial side to engage in a no-stone-unturned years, 45 out of the country’s 94 district Conference should experiment with ambi- search for the truth, all paid for by courts exercised this right of first refusal.76 tious rule reforms before adopting them the other side. But those rules were Of the remaining districts, many of them nationwide. Under the Rules Enabling designed for what was then a discrete made the disclosures voluntary. In view Act, the rulemakers have a duty to carry world of “paper” and “thing” discov- of the house-divided nature of the new on “a continuous study of the operation ery. With the creation of copying discovery regime and a growing prefer- and effect of the general rules of practice machines, the amount of paper discov- ence for a uniform set of rules on such an and procedure.”79 But the duty of careful ery increased significantly. And with important feature of federal trial practice, study, Scalia claimed, preceded the duty the development of the internet, the the Advisory Committee amended the rule of recommendation, and sometimes that amount of discoverable information again in 2000. The new rule retained a study required local experiments first. increased exponentially. There are a framework for mandatory initial disclosure, Had the Advisory Committee taken this lot more stones than there used to be. but limited it, critically, to information route, had it tested the new regime of • In the face of this transformation of that the party might “use to support its mandatory initial disclosure locally for information creation and preservation, claims or defenses.”77 That was a distant three years from 1993 to 1996, a more does our discovery system still honor call from the 1993 requirement that parties enduring reform, one way or another, the imperatives of Civil Rule 1: “the 4 18 VOL. 101 NO. 3

just, speedy, and inexpensive deter- than liberty? These questions deserve before jury trials. Our colleges and mination of every action”? In many consideration and answers. high schools have many mock trial cases, it’s doubtful that we can respect • One long-cherished value when it programs but no mock discovery a liberal model of fence-and-be-fenced comes to American dispute resolu- programs with mock depositions and discovery without slighting the goals tion has been the right to a jury trial, mock interrogatories. And yet the of “speedy” and “inexpensive” litiga- reflected in the Sixth and Seventh latter would be far more useful (if a lot tion. In a world of electronic discovery, Amendments to the United States less interesting) to students than the the kind of prolonged and costly search Constitution. But as many point former if they ever become lawyers, at for the truth associated with a “just” out, the number of civil jury trials least as things now stand. resolution of each action at some point is decreasing, if not disappearing • Just as the forces of creative destruc- ends up at cross-purposes with that in many courts.80 For example, the tion play out every day in American same goal. capitalism, with some businesses • The American judicial system is thriving and others exiting the the envy of the world. But what THE SLOW PLODDING stage, so the same may happen one country has adopted our system TORTOISE DID WIN IN day with American dispute reso- of civil discovery? Not one to AESOP’S FABLE. BUT THE lution. If the federal bench and our knowledge. Other countries SPEEDY AND IMPATIENT HARE bar do not reform civil litigation, seem to be doing everything HAS HIS ROLE TO PLAY AS American businesses and indi- they can to avoid importing viduals eventually will do it for American discovery practices WELL. IN THE CONTEXT OF them. The free market of dispute into their legal systems. Let’s THE 2017 PILOT PROJECTS, resolution will eventually punish hope that this is not what DESIGNED TO IMPROVE lawyers and judges who fail to pay people mean when they refer to THE SPEED, EFFICIENCY, attention to what is happening American exceptionalism. COST-EFFECTIVENESS, AND and adjust to it. • The ever-increasing global- OVERALL RESPONSIVENESS • One option will be the state ization of business will lead OF THE FEDERAL COURTS, IT courts, where plenty of innovation to a growth in international MAY YET BE POSSIBLE TO PUT is already taking place. Two surveys disputes. As matters now stand, show that civil litigators in Arizona isn’t it likely that international THE SLOW AND DELIBERATE prefer the state courts to the federal businesses will be wary about PACE OF THE TORTOISE IN courts.84 Arizona, by the way, has a litigation in American courts? THE SERVICE OF THE 25-year-old system of mandatory If a company is based in a FLEET-FOOTED HARE. voluntary disclosure much like the country that does not use our coming federal pilot. system of broad civil discov- • Another option is mediation ery — which is to say, all of them number of civil trials in all federal and arbitration, which minimizes — it’s easy to wonder whether such district courts dropped from 12,018 (and sometimes eliminates) discovery. companies will prefer dispute resolu- in 1984 to 3,555 in 2006.81 In 1962, Statistics show that this is a growth tion in American courts. juries resolved 5.5 percent of federal industry, here and abroad.85 That’s • It’s not just that there is a striking civil cases; since 2005, the rate has fine if it happens to be a better form of contrast between discovery in this been below 1 percent.82 And in the dispute resolution for a given conflict country and the rest of the world. 30-year period from 1970 to 1999, and a given set of parties. But that There is also a remarkable contrast while the total number of civil filings development is troubling if it merely in this country between the discov- in federal courts rose by 152 percent, reflects a frustration with the costs, ery practices used in civil cases and in the number of cases that were tried delays, and uncertainties of federal another set of cases devoted to a search by federal judges dropped by 20 civil litigation. for the truth: criminal cases. Try look- percent.83 At the same time, there is a • Increased arbitration and mediation ing for an analogue to Civil Rules 26 growing shortage of lawyers with the is not cost free. The American legal through 37 in the Federal Rules of skill and experience to try civil cases, system is still a precedent-driven one. Criminal Procedure. You will not find a development that should surprise no Arbitration and mediation generally do one. Why? Do our courts resolve crim- one. The skill set of most civil litiga- not create precedents, and certainly not inal cases less fairly, less justly, than tors now turns on managing discovery binding ones. If court resolution ever civil cases? Or do we just insist on more before motions for summary judg- becomes the “alternative” in alterna- process for disputes about money rather ment rather than managing evidence tive dispute resolution, one can fairly JUDICATURE 19

worry about the necessary creation of language that previously allowed the discovery prior to traditional party- precedents needed to guide lawyers and conference to occur “by telephone, mail, initiated discovery will decrease expenses parties. It’s not even clear that arbitra- or other means.”92 On top of all that, the and delay. The pilot increases the amount tion and mediation will work without amendments clarified the parties’ preser- of information parties must disclose at a wellspring of judicial precedents. vation responsibilities when it comes to the outset of the case. Under the pilot, As the above suggests, the concerns electronically stored information, limit- both parties must disclose information that animated the 1980 and 1993 Civil ing sanctions “to instances of intentional helpful and harmful to their position. In Rules amendments remain with us and, loss or destruction.”93 the language of the pilot’s standing order, if anything, are more salient today. All of The pilot projects offer the prospect the parties would turn over information which explains the impetus behind the of still more far-reaching reforms. The “relevant to any party’s claims or defenses” 2015 Civil Rules amendments and the Expedited Procedures Pilot draws upon as opposed to the current requirement 2017 pilot projects. And all of which takes practices already employed by some under Rule 26 that they turn over infor- us back to Justices Powell and Scalia. judges and turns on the intuition that the mation that the responding party “may Today’s reforms fuse both pieces of less time courts give litigants to conduct use to support its claims.”96 advice — by thinking and acting boldly discovery, the more they will focus on the Each pilot is slated to last three years.97 through the 2015 amendments and by test- reasonable discovery needs of each case. With the help of the data-collection capa- ing other reforms at the local level through The pilot has five features: (1) a sched- bilities of the Federal Judicial Center, the pilot projects before deciding to national- uling conference as soon as possible but pilots will gauge whether the reforms ize them. Taken together, the reforms seek no later than 90 days after any defendant increase the efficiency and fairness of the to steer a prudent course between tinkering is served or 60 days after any defendant trial process and perhaps even gain popu- changes and sweeping overhaul. appears; (2) a time limit on discovery of larity among lawyers and judges in the The 2015 amendments were not no more than 180 days, with the possi- trial-run districts. In this way, the pilot timid. For starters, the amendments fully bility of one extension for good cause; projects may realize the vision of Justice adopt one of the original 1980 propos- (3) the prompt resolution of discovery Powell and Justice Scalia by adopt- als and improve on it. As amended, Civil disputes through conferences and short ing reforms that are bold yet empirical, Rule 26 refers to discovery not of “any submissions rather than formal briefing; far-reaching yet experimental. matter relevant to the subject matter” of (4) the resolution of dispositive motions This will take time, no doubt. And it is the action but only to information rele- within 60 days of the filing of the reply perhaps ironic that pilot projects designed vant to the parties’ “claims or defenses.”86 brief; and (5) a firm trial date so that the to improve the speed and efficiency of It also eliminates language that referred to trial starts within 14 months of service federal litigation may delay reform. But the discovery of any information “reason- (for 90 percent of the cases) and within 18 that is the fair price of combining the ably calculated to lead to the discovery of months of service (for the remaining 10 virtues of thinking big and slow, of boldly admissible evidence.”87 Perhaps most crit- percent of the cases). attempting to transform judicial and legal ically, discoverable information not only By setting these time limits, the pilot culture surrounding the self-contained must be relevant to the parties’ claims or aims to “concentrate the mind” of lawyers world of pretrial discovery based squarely defenses, but it also must be “proportional and judges alike to resolve disputes in upon empirical data mined from local to the needs of the case.”88 as expeditious a manner as possible.94 It experimentation. And it’s a fair price for That’s not all. For the first time since may be difficult to draft rules thatrequire addressing the risk aversion and change 1938, Civil Rule 1 places a responsibil- reasonable behavior when it comes to aversion of lawyers. As Justice Powell ity upon the parties as well as the court discovery and other pretrial procedures. pointed out in his 1980 dissent, “it often to ensure the “just, speedy, and inexpen- But it may be possible to mandate reason- is said that the bar has a vested interest sive determination of every proceeding.”89 able behavior by setting fixed time periods in maintaining the status quo.”98 In order And the amendments shorten several to undertake these activities — requiring to increase the speed of litigation — one crucial early deadlines. Plaintiffs must lawyers and their clients to use weeks and of the chief goals of Rule 199 and a prob- serve their complaint within 90 days months rather than years to focus on the lem lamented in the ages of Shakespeare (down from 120) after filing it.90 And essentials of a case. and Dickens, a problem indeed dating courts must issue their scheduling orders The Mandatory Initial Discovery Pilot back to Magna Carta100 — one must first within 90 days (down from 120) after takes a different tack and is a refined be prepared to go slowly and sometimes any defendant has been served, or 60 days outgrowth of the 1993 discovery proposal. experimentally in the domain of rule (down from 90) after any defendant has Drawing upon court rules already used reform and judicial administration. appeared.91 To encourage active, in-person in several states and the Employment These promising reforms call to mind scheduling conferences between the court Law Protocols,95 the pilot tests whether another Year-End Report that Chief 101 and counsel, the Rules Committee deleted mandatory and immediate court-ordered Justice Roberts penned, in 2014. 4 20 VOL. 101 NO. 3

Closing out his discussion of the pace with the judiciary’s commitment to constant 24 Burger, supra note 14, at 33. which federal courts adopt technological but deliberate progress in the cause of 25 Marcus, supra note 22, at 758–59. change, he drew his readers’ attention to justice.”102 The slow plodding tortoise did 26 Id. at 758. the often-overlooked east pediment of the win in Aesop’s Fable. But the speedy and 27 Supreme Court facing Second Street. “It impatient hare has his role to play as well. Id. at 759. is flanked by imagery drawn from a well- In the context of the 2017 pilot projects, 28 Fed. R. Civ. P. 26(f), Advisory Committee’s Note to known fable: A hare on one side sprints in designed to improve the speed, efficiency, 1980 Amendment. full extension for the finish line, while a cost-effectiveness, and overall responsive- 29 Id. tortoise on the other slowly plods along. ness of the federal courts, it may yet be 30 Amendments to the Federal Rules of Civil Perhaps to remind us of which animal possible to put the slow and deliberate Procedure, 85 F.R.D. 521 (1980) (Powell, J., won that famous race, Cass Gilbert placed pace of the tortoise in the service of the dissenting) [hereinafter Powell dissent]. at the bases of the Court’s exterior lamp- fleet-footed hare. u 31 Justice Lewis Powell, Reforms – Long Overdue, Orison posts sturdy bronze tortoises, symbolizing S. Marden Memorial Lecture, 33 Rec. A.B. City N.Y. 458, 461 (1978). JEFFREY S. DEREK A. WEBB 32 ACF Indus., Inc. v. EEOC, 439 U.S. 1081, 1086–87 SUTTON is a is an associate at (1979). judge in the Sixth Sidley Austin LLP 33 Herbert v. Lando, 441 U.S. 153, 179 (1979). Circuit Court in Washington, 34 Roadway Express v. Piper, 447 U.S. 752, 757 n.4 of Appeals in D.C., where he (1980). Columbus, Ohio. focuses on 35 Powell dissent, supra note 30. He was a law clerk Supreme Court 36 Id. at 522. for Justices Lewis and Appellate 37 Powell (ret.) and Antonin Scalia on the litigation. He was a law clerk to Judge Id. United States Supreme Court. From 2012 Jeffrey S. Sutton on the Sixth Circuit 38 Id. at 522–23. to 2016, he served as the chair of the Court of Appeals and a Supreme Court 39 Id. at 523. Standing Committee on Rules of Practice Fellow in the Office of the Counselor to 40 Id. and Procedure. the Chief Justice. 41 Id. 42 Arthur Miller, Confidentiality, Protective Orders, and 1 Chief Justice John G. Roberts, 2016 Year- Experiment, 71 Wash. & Lee L. Rev. 2157, 2169 Public Access to the Courts, 105 Harv. L. Rev. 427, End Report on the Federal Judiciary (2016); (2014). 458 (1991). 43 https://www.supremecourt.gov/publicinfo/ 13 For background on the influence of Roscoe Pound’s Maurice Rosenberg & Warren King, Curbing year-end/2016year-endreport.pdf [hereinafter 2016 speech on the creation of the Federal Rules of Civil Discovery Abuse in Civil Litigation: Enough Is Enough, Year-End Report]. Procedure, see for example, Austin Scott, Pound’s 1981 BYU L. Rev. 579 (1981). 2 Id. at 3–8. Influence on Civil Procedure, 78 Harv. L. Rev. 1568 44 Wayne Brazil, Improving Judicial Controls over the (1965); Jay Tidmarsh, Pound’s Century, And Ours, 81 3 Id. at 7. Pretrial Development of Civil Actions: Model Rules for Notre Dame L. Rev. 513 (2006); Barry Friedman, Case Management and Sanctions, 1981 Am. B. Found. 4 Id. at 6–7. Popular Dissatisfaction with the Administration of Res. J. 873 (1981); Frank F. Flegal, Discovery Abuse: Justice: A Retrospective (and a Look Ahead), 82 Indiana Causes, Effects, and Reform, 3 Rev. Litig. 1 (1983); 5 Id. at 6; see also Ted Hirt, Important Amendments to the L. J. 1193 (2007). Arthur R. Miller, The Adversary System: Dinosaur or Federal Rules of Civil Procedure, Wash. Lawyer, Oct. 14 Phoenix, 69 Minn. L. Rev. 1 (1984). 2015. Chief Justice Warren Burger, Agenda for 2000 A.D. – Need for Systematic Anticipation, 15 Judges’ J. 27, 45 6 Cavanagh, supra note 10, at 780. 28 U.S.C. §§ 2072–2074 (1934). 29 (1976). 46 Fed. R. Civ. P. 26(a), Advisory Committee’s Note to 7 Hickman v. Taylor, 329 U.S. 495, 507 (1947). 15 Id. at 31. 1983 Amendment. 8 Id. 16 Id. at 33. 47 See, e.g., Wayne D. Brazil, The Adversary Character of 9 United States v. Procter & Gamble, 356 U.S. 677, 682 17 Id. at 32. Civil Discovery: A Critique and Proposals for Change, (1958). 31 Vand. L. Rev. 1295 (1978); William W. 18 Id. at 28. Schwarzer, Slaying the Monsters of Cost and Delay: 10 Edward D. Cavanagh, The August 1, 1983 Amendments 19 Would Disclosure Be More Effective than Discovery?, 74 to the Federal Rules of Civil Procedure: A Critical Id. Judicature 178 (1991). Evaluation and a Proposal for More Effective Discovery 20 Id. through Local Rules, 30 Villanova L. Rev. 767, 771 48 Brazil, supra note 47, at 1304. 21 (1985). Id. at 32. 49 Judge Ralph Winter, In Defense of Discovery Reform, 22 11 Charles Alan Wright, The Law of Federal Richard L. Marcus, Discovery Containment Redux, 39 58 Brook. L. Rev. 263, 263–64 (1992); see also Courts § 81, at 542 (4th ed. 1983). B.C. L. Rev. 747, 754 (1998). Schwarzer, supra note 47, at 178–79; Judge Frank 23 H. Easterbrook, Discovery as Abuse, 69 B.U. L. Rev. 12 Judge Paul V. Niemeyer, Revisiting the 1938 Rules Id. at 755. JUDICATURE 21

635 (1989); Angela R. Lang, Mandatory Disclosure 71 Id. at 511 (citation omitted). Procedure 12 (2010); see also, Andrew D. Hurwitz, Can Improve the Discovery System, 70 Ind. L. J. 657, Possible Responses to the ACTL/IAALS Report: The 72 661-67 (1995). Id. at 512. Congress had passed the Civil Justice Arizona Experience, 43 Ariz. St. L.J. 461 (2011). Reform Act (CJRA) in 1990 that required pilots in 50 85 Brazil, supra note 47, at 1311–15, 1332, 1349; the federal courts, and the civil rules changes became See, e.g., Thomas J. Stipanowich, ADR and the M. E. Frankel, The Search for Truth Continued: More those pilots. ‘Vanishing Trial’: The Growth and Impact of ‘Alternative Disclosure, Less Privilege, 54 U. Colo. L. Rev. 51, Dispute Resolution,’ 1 J. Empirical Legal Stud. 843 73 53–56 (1982); Wright & Miller, Federal Practice & Linda Mullenix, Hope over Experience: Mandatory (2004). Procedure § 2053 (3d ed. 2010) (drawing an analogy Informal Discovery and the Politics of Rulemaking, 69 86 Fed. R. Civ. P. 26(b)(1), Advisory Committee’s Note between disclosure requirements in criminal law and N.C. L. Rev. 795, 810 (1991). to 2015 Amendment. the civil discovery system). 74 Stephen B. Burbank, Ignorance and Procedural Law 87 Id. 51 Schwarzer, supra note 47, at 182; see also Brazil, supra Reform: A Call for a Moratorium, 59 Brook. L. Rev. note 47, at 1302; William Schwarzer, New Discoveries 841 (1993). 88 Id. 75 for the Discovery Process: The Thought of Voluntarily William J. Hughes, Congressional Reaction to the 1993 89 Exchanging Sensitive Documents with an Opposing Party Fed. R. Civ. P. 1, Advisory Committee’s Note to Amendments to the Federal Rules of Civil Procedure, 18 2015 Amendment. and Putting a Lid on Depositions and Interrogatories May Seton Hall Legis. J. 1 (1993); Paul D. Carrington, Sound Like Heresy to Many Litigators but They Could Learning from the Rule 26 Brouhaha: Our Courts Need 90 Fed. R. Civ. P. 4(m), Advisory Committee’s Note to Get Used to It – And the Trial Process Would Benefit, Real Friends, 156 F.R.D. 295, 309 (1994). 2015 Amendment. Legal Times, Nov. 25, 1991 [hereinafter Schwarzer, 76 91 New Discoveries]. Donna Stienstra, Fed. Judicial Ctr., Implementation Fed. R. Civ. P. 16, Advisory Committee’s Note to of Disclosure in United States District 2015 Amendment. 52 Schwarzer, supra note 47, at 183. Courts, With Specific Attention to Courts’ 92 Fed. R. Civ. P. 16, Advisory Committee’s Note to 53 Responses to Selected Amendments to Schwarzer, New Discoveries, supra note 51; Brazil, 2015 Amendment. supra note 47, at 1357–58. Federal Rule of Civil Procedure 26 (March 30, 1998). 93 Fed. R. Civ. P. 37(e), Advisory Committee’s Note to 54 Schwarzer, supra note 47, at 179. 2015 Amendment. 77 Fed. R. Civ. P. 26(a)(1)(A)(i) (emphasis added). 55 Lisa Trembly, Mandatory Disclosure: A Historical 94 Report of the Advisory Committee on Civil Rules 78 Scalia dissent, supra note 66, at 512-13. Review of the Adoption of Rule 26 and an Examination to the Standing Committee, Dec. 9, 2016, 13-14; of the Events that have Transpired Since its Adoption, 21 79 28 U.S.C. § 331. For a discussion of the singular role see also Attachment 4 to the Report, “Description Seton Hall Legis. J. 425, 438-39 (1997). Ed Cooper, the Reporter of the Civil Rules Advisory of the Expedited Procedures Pilot Project,” in the 56 Alfred W. Cortese & Kathleen L. Blaner, A Change in Committee since 1992, has played in encouraging Agenda Book of the Standing Committee on Rules the Rules Draws Fire: Litigators Fight to Stop Mandatory the committee to incorporate empirical analysis of Practice and Procedure, Jan. 3, 2017, 97-98. into its “continuous study” of the rules, see Mark Disclosure, National L. J., Oct. 18, 1993. 95 “Pilot Project Regarding Initial Discovery Protocols R. Kravitz, David F. Levi, Lee H. Rosenthal, and 57 for Employment Cases Alleging Adverse Action,” Id. Anthony J. Scirica, They Were Made for Each Other: Federal Judicial Center, Nov. 2011. 58 Professor Edward Cooper and the Rules Enabling Act, 46 Griffin B. Bell, Chilton Davis arner,V and Hugh Q. 96 Gottschalk, Automatic Disclosure in Discovery — The U. Mich. J. L. Reform 495, 513-17 (2013). Report of the Advisory Committee on Civil Rules to the Standing Committee, Dec. 9, 2016, 14-15; Rush to Reform, 27 Ga. L. Rev. 1, 28–29, n. 110 80 See Mark R. Kravitz, The Vanishing Trial: A Problem see also Attachment 5 to the Report, “Mandatory (1992). in Need of Solution?, 79 Conn B. J. 1 (2005); Patrick Initial Discovery Pilot Project Standing Order with 59 E. Higginbotham, So Why Do We Call Them Trial Ann Pelham, Judges Make Quite a Discovery; Litigators Introduction,” in the Agenda Book of the Standing Courts?, 55 SMU L. Rev. 1405 (2002); William Erupt, Kill Plan to Reform Federal Civil Rules, Legal Committee on Rules of Practice and Procedure, Jan. G. Young, An Open Letter to U.S. District Judges, 50 Times, March 16, 1992. 3, 2017, 101-06. Federal Lawyer 30 (July 2003); Marc Galanter, 60 Bell et al., supra note 58, at 35. The Vanishing Trial: An Examination of Trials and 97 Report of the Advisory Committee on Civil Rules to Related Matters in Federal and State Courts, 1 J. the Standing Committee, Dec. 9, 2016, 13-14. 61 Minutes of the Apr. 13-15, 1992 Meeting of the Empirical Legal Stud. 459 (Nov. 2004); Stephen Advisory Committee on Civil Rules, at 6–7. 98 Powell dissent, supra note 30, at 521. D. Susman, Disappearing Civil Trials, Address at the 62 Ann Pelham, Panel Flips, OKs Discovery Reform, 35th Annual Conference of American Society of Trial 99 Fed. R. Civ. P. 1 (stating that the rules “should Legal Times, Apr. 20, 1992. Consultants, (May 20, 2016). be construed, administered, and employed by the court and the parties to secure the just, speedy, 63 Id. 81 Michael Orey, The Vanishing Trial, Bloomberg and inexpensive determination of every action and Businessweek, April 30, 2017. 64 Carl Tobias, The Transmittal Letter Translated, 46 Fla. proceeding”). L. Rev. 127 (1994). 82 Civil Jury Project at NYU School of Law, available 100Magna Carta Art. 40 (1215) (“To none will we sell, at http://civiljuryproject.law.nyu.edu/about/ (last 65 Amendments to the Federal Rules of Civil Procedure, to none will we deny, to none will we delay justice.”); visited July 18, 2017). 146 F.R.D. 401, 501–506 (1993) (White, J., see also Niemeyer, Revisiting the 1938 Rules Experiment, concurring). 83 Higginbotham, supra note 80, at 1408. supra note 12, at 2177 (suggesting a comparison between the sealing of Magna Carta in Runnymede 66 Id. at 507 (Scalia, J., dissenting) [hereinafter Scalia 84 American College of Trial Lawyers & in 1215 and the creation of the Federal Rules of Civil dissent]. Institute for the Advancement of the Procedure in Washington, D.C. in 1938). American Legal System, Interim Report & 67 Id. at 511. 2008 Litigation Survey of the Fellows of The 101Chief Justice John G. Roberts, 2014 Year-End 68 Id. at 512. American College of Trial Lawyers (Sept. 9, Report on the Federal Judiciary (2014). 2008); Institute for the Advancement of the 69 102Id. at 11-12. Id. at 511–12. American Legal Sys., Survey of the Arizona 70 Id. at 510. Bench & Bar on the Arizona Rules of Civil 22 VOL. 101 NO. 3

A Clash of Constitutional Values JUDICATURE 23

When Should Trial Judges Consider Constraining a Defendant’s Right to Self-Representation?

BY STEPHEN C. LECKAR

The defendant is accused of serious Many contemporary readers may be sent oneself — the latter being this article’s thinking of Dylann Roof, accused of murder- focus. Even so, the numbers are illuminat- felony offenses but insists on exercising nine Charleston, S.C., church members, ing. The most recent reports show that ing the right of self-representation. The who insisted on defending himself and was magistrate judges conducted 510 mental convicted of 33 federal crimes.1 Following competency hearings nationally in the 12 defendant seems oriented as to time and an unorthodox defense before a jury, in months that ended on Sept. 30, 2016,3 a which he neither testified nor presented number higher than in the prior year, when place. Yet the charged offenses’ nature evidence, Mr. Roof was condemned to they presided over 439 such hearings.4 death by a jury.2 While his fate and the Forty years ago, the Supreme Court and the defendant’s in-court speech issue of whether he was competent to in Faretta v. California5 declared that the and conduct and written submissions represent himself may yet be adjudicated Sixth Amendment allows defendants to on appeal or in post-conviction proceed- knowingly and intelligently waive their suggest an ideation far removed from ings, the scenario presented here is hardly right to be represented by counsel and unusual. Although it is impossible to to instead defend themselves in crimi- the mainstream. Nor will the defendant quantify the number of defendants whose nal cases.6 Faretta derived this right from cooperate with court-appointed counsel, competency to self-represent is deter- history, the Sixth Amendment’s text, and mined, the empirical data suggests that “[the] respect for the individual which is an experienced and skilled practitioner. number is not modest. the lifeblood of the law.”7 The federal courts track the number of The Faretta majority concluded that For aught that appears, the proposed mental competency hearings conducted forcing a defendant to accept counsel defense theory and strategy seem annually by magistrate judges. To be sure, “can only lead him to believe that the law being competent to stand trial is a legal step contrives against him.”8 Speaking for the outlandish. removed from being competent to repre- Court majority, Justice Potter Stewart 4 24 VOL. 101 NO. 3

wrote that while “[i]t is undeniable that ing when the self-representation right may in most criminal prosecutions defendants IN LIGHT OF EDWARDS, be constrained. could better defend with counsel’s guid- JUDGES MAY “REQUIRE ance than by their own unskilled efforts[,] Background where the defendant will not voluntarily A HIGHER LEVEL OF In Edwards, the Supreme Court recog- accept representation by counsel, the nized that two of its cases had set forth potential advantage of a lawyer’s training COMPETENCE FOR a mental competency standard. The first and experience can be realized, if at all, case, Dusky v. United States,20 defines the only imperfectly. . . .”9 “Moreover,” Justice SELF-REPRESENTATION” competency standard as including “(1) Stewart stated, “it is not inconceivable that THAN WOULD BE THE whether the defendant has a rational in some rare instances, the defendant might as well as factual understanding of the in fact present his case more effectively by CASE IF THE ISSUE proceedings against him and (2) whether conducting his own defense. Personal liber- the defendant has sufficient present ability ties are not rooted in the law of averages.”10 SOLELY FOCUSED ON to consult with his lawyer with a reason- In 2008, the Supreme Court in Indiana able degree of rational understanding.”21 v. Edwards11 modifiedFaretta ’s expansive THE DEFENDANT’S The second case, Drope v. Missouri,22 right to self-representation. In an opin- COMPETENCY TO “repeats that standard,” for “it has long ion authored by Justice Stephen Breyer, been accepted that a person whose mental the Court held that if there is “reasonable STAND TRIAL. condition is such that he lacks the capac- cause” to believe that a defendant who ity to understand the nature and object seeks to represent himself suffers from a of the proceedings against him, to consult severe mental illness and cannot conduct with counsel, and to assist in preparing his the trial proceedings rationally, a trial governing competency in general: the defense may not be subjected to a trial.”23 judge may conduct a hearing to make right of the defendant to self-represent Ultimately Edwards disavowed “the use an informed judgment over whether to and the countervailing right of the state of a single mental competency standard permit or deny self-representation.12 to limit that freedom in those circum- for deciding both (1) whether a defendant How should a trial judge respond stances where a defendant’s competency who is represented by counsel can proceed when a defendant whose speech, deport- to self-represent is dubious. Afterwards, to trial and (2) whether a defendant who ment, or writings suggest seriously it suggests guidelines that can be used goes to trial must be permitted to repre- disturbed ideation requests to proceed by trial courts adjudicating these delicate sent himself.”24 In light of Edwards, judges pro se? To date, the Supreme Court has situations and by appellate courts review- may “require a higher level of competence not “prescribed any formula or script to ing trial judges’ decisions. for self-representation” than would be be read to a defendant who states that he the case if the issue solely focused on the elects to proceed without counsel.”13 PRECLUDING DEFENDANTS FROM defendant’s competency to stand trial.25 Federal trial courts frequently use the SELF-REPRESENTATION Benchbook for U.S. District Judges to caution Mental health issues present an inher- Upon a proper showing, the defendants about the pitfalls of self-rep- ent conflict between the Fifth and Sixth Constitution permits trial judges to resentation.14 Indeed, the Benchbook’s Amendments. The Fifth Amendment may limit the right of severely mentally warnings somewhat mirror the course give rise to a procedural due process claim ill defendants from representing followed in the Roof prosecution.15 (where a court failed to hold a competency themselves. However, the Benchbook lacks any proto- hearing despite a “bona fide doubt” about Edwards recognized that “[m]ental illness cols to help assess the competency of an the defendant’s competence) and a substan- itself is not a unitary concept. . . . In certain apparently severely troubled individual tive due process claim (where an “actually” instances an individual . . . will be able who demands to self-represent. incompetent defendant was convicted or to work with counsel at trial, yet at the A similar lack of clarity also is reflected sentenced).17 At the same time, Faretta same time he may be unable to carry out in the state courts. One commentator’s endorses the right to self-represent follow- the basic tasks needed to present his own exhaustive recent analysis of post-Edwards ing a “knowing, voluntary, and intelligent” defense without the help of counsel.”26 state decisions concluded that “vague” and waiver of the right to counsel.18 Absent The Court referenced this dichotomy “constitutionally suspect” standards were a serious mental condition, defendants as the defendant’s “ability to play the being used to assess whether to permit gray- possess the “right to represent themselves significantly expanded role required for area defendants to represent themselves.16 and go down in flames if they wish[], a self-representation even if he can play the This article first addresses the intersec- right the district court [is] required to lesser role of represented defendant.”27 tion between the constitutional principles respect.”19 The difficulty comes in identify- JUDICATURE 25

In characterizing the former bench- Thus understood, “‘Edwards does not Trial judges have a continuing duty mark as being “the higher standard at compel a trial court to deny a defendant to monitor gray-area defendants who issue here,” Edwards described Respondent the exercise of his or her right to self-rep- defend themselves. Ahmad Edwards, a schizophrenic, as a resentation; it simply permits a trial court When a “gray-area” defendant’s competence “gray-area defendant.” This term, Justice to require representation for a defendant to self-represent is not evaluated, or is done Stephen Breyer wrote, meant an indi- who lacks mental competency to conduct so in at best a perfunctory way, a potential vidual more or less mentally competent trial proceedings.’”34 issue will lurk of whether that defendant to stand trial, but seemingly lacking the In its ruling, the Edwards Court was constructively denied the assistance mental competence to self-represent.28 declined to adopt a “specific standard” of counsel. An invalid waiver of counsel is Edwards explained that society’s inter- for determining representational incom- tantamount to the denial of counsel, which est in a fair trial is two-fold: making petence.35 It left that to the discretion of is a structural error, i.e., an error that is sure that the trial is fair in fact, but also the “trial judge . . . who . . . will often presumptively prejudicial.42 Accordingly, making sure that the public will perceive prove best able to make more fine-tuned trial judges must carefully assess requests that the trial is fair. The Court pointed mental capacity decisions, tailored to the to self-represent at the outset and should out that “insofar as a defendant’s lack of individualized circumstances of a partic- continue monitoring such situations capacity threatens an improper conviction ular defendant.”36 Predictably the “states through sentencing.43 or sentence, self-representation in that have generated a patchwork of compe- A Ninth Circuit decision, United States exceptional context undercuts the most tency standards for self-representation,” v. Ferguson,44 is a representative Edwards basic of the Constitution’s criminal law yielding “an odd and uncomfortable issue that permeated a case. In addressing objectives, providing a fair trial.”29 Thus arrangement because state thresholds an Edwards claim raised on direct appeal, “the Constitution permits [courts] to for the exercise of federal constitutional the Ferguson court “note[d] that [d]efen- insist upon representation by counsel for rights typically should not vary.”37 dant’s behavior was decidedly bizarre;” he those [defendants] competent enough to had repeatedly made irresponsible demands stand trial . . . but who still suffer from FEW GUIDELINES AVAILABLE TO HELP of his counsel, including an “attempt[] severe mental illness to the point where TRIAL JUDGES to file a motion of ‘dishonor’ against his they are not competent to conduct trial The federal courts regularly confront lawyers,” and advanced highly unorthodox proceedings by themselves.”30 seemingly irrational defendants who wish legal theories — such as requesting the Continuing, the Court observed that to represent themselves.38 As would be judge to recognize a “‘public policy’ excep- while the Dusky standard for compe- expected, the same problem appears in the tion in the UCC and dismiss the case ‘for tence to stand trial could help in making state courts.39 value.’” Moreover, “once the jury convicted this determination, “given the differ- Nor are the severe mental illnesses [Ferguson], there was far less reason for ent capacities needed to proceed to trial foreseen by Edwards limited to those exhib- continuing his odd behavior at sentencing. without counsel, there is little reason to iting palpable indicia of impaired thought Yet Defendant continued his bizarre and believe that Dusky alone is sufficient.”31 — say, paranoid delusional expressions. wholly ineffective behavior.”45 Even then, In explaining the need for imposing “a A wide array of mental diseases can affect faced with the strong possibility of a statu- mental-illness-related limitation on the the ability to self-represent. Schizophrenia tory maximum sentence, and with “almost scope of the self-representation right,”32 and related disorders, depressive disorders, nothing to gain and everything to lose” the Court majority reasoned: anxiety disorders — even delirium and by aberrant behavior, Ferguson’s bizarre dementia, extreme phobia or panic, obses- actions continued.46 The Constitution permits judges to sive-compulsive disorders, or Asperger’s The confluence of three circumstances take realistic account of the particu- Syndrome may well affect a defendant’s led the Ferguson panel to remand the case lar defendant’s mental capacities by cognitive ability to self-represent.40 to the district court. First, “Defendant’s asking whether a defendant who seeks Since Edwards the law has developed actions suggest that he might have been to conduct his own defense at trial is on a case-by-case basis.41 Because the ‘unable to carry out the basic tasks needed mentally competent to do so. That is to concerns identified by Edwards likely will to present his own defense without the say, the Constitution permits States to continue to require large expenditures of help of counsel.’”47 Second, “Defendant’s insist upon representation by counsel for judicial resources, this article draws from complete failure to defend himself seri- those competent enough to stand trial the cases and suggests protocols to assist ously jeopardized the fairness of the trial under Dusky, but who still suffer from trial judges in exercising the discretion and sentencing hearing and, at the very severe mental illness to the point where granted by Edwards as well as appellate least, seriously jeopardized the appear- they are not competent to conduct trial courts in reviewing those decisions. ance of fairness.”48 Third, “[p]erhaps most proceedings by themselves.33 importantly, the record suggests that the district court might have forced counsel 4 26 VOL. 101 NO. 3

upon Defendant, had the court had the Appointing standby counsel invites Likewise the Court of Appeals for the benefit of readingEdwards .”49 Pointing out other concerns, for the law has not clearly Fourth Circuit upheld an unsuccessful that “[e] ven the government’s lawyer was defined the duties of standby counsel.59 request to self-represent where the defen- extremely keen to have Defendant repre- For example, standby counsel’s duty to dant, who was diagnosed as suffering sented, because he was concerned that question the defendant’s competence to from delusional disorder and personality self-representation in this case would be self-represent is murky.60 disorders, maintained that his cross-ex- error,”50 the panel remanded the case to the A line of appellate cases that have amination skills were superior to his trial court. considered the issue of competency counsel’s, leaving the trial judge “‘uncon- adapted the “meaningful adversarial test- vinced’ that Barefoot could ‘understand[] The views of counsel are helpful but ing” standard of United States v. Cronic, 61 a fully his role and duties at trial were he to not dispositive. seminal decision on evaluating ineffective represent himself.’”71 The perspective of defense counsel assistance of counsel claims, to require a Other courts have recognized the right normally “should be considered” in the similar obligation of standby counsel in to self-represent where the defendant context of competency issues.51 Indeed, the context of a competency hearing.”62 possessed a basic understanding of the during the appeals process following the Even then, “[i]t is not clear that standby necessary steps. In United States v. Stafford, conviction of the serial killer Theodore counsel has an obligation to address the district judge explored the defendant’s Bundy, the Court of Appeals for the limitations that may impair the defen- apparent understanding of jury selec- Eleventh Circuit opined that a defense dant’s ability to represent herself.”63 tion and trial procedures and considered lawyer who believes that the client is Seeking an alternative remedy, some psychological experts’ testimony.72 irrationally thwarting the presenta- courts have appointed “hybrid” counsel In the absence of nationally-promul- tion of potential grounds for reversible to “essentially function as ‘co-counsel.’”64 gated standards to assess requests to error “‘cannot blindly accept his client’s However, there is no constitutional right self-represent where Edwards concerns demand that competency not be chal- to hybrid representation.65 Also, it is may be present, unless a self-represen- lenged’” and may have a duty to seek the only permissible with the defendant’s tation competence standard is agreed court’s instructions.52 consent, whereas standby counsel may on through the appellate process, both While the law in this area is develop- be provided over the defendant’s objec- psychiatrists and trial courts likely will ing, the ethical implications identified by tion.66 Nor is hybrid representation use differing formulations. Trial judges’ Bundy cannot be passed by lightly.53 available in all jurisdictions; some disfa- decisions may in the mine-run of cases Nonetheless, the deference given to vor such arrangements.67 yield satisfactory results, although there is statements made — or not made — by reason to suspect otherwise.73 As appeals counsel is not dispositive of the sensitive Defining meaningful guidelinesfollow, the legal questions raised may ulti- question that must be answered. “[A] to assess the gray-area defendant’s mately be answered, but only after some, lawyer is not a trained mental health demand to self-represent. perhaps many, unnecessary reversals. professional capable of accurately assess- In the post-Edwards landscape, after setting In some jurisdictions, the courts of ing the effects of paranoid delusions [or aside cases where the defendant’s seem- appeals could use their “supervisory other conditions] on the client’s mental ingly nonsensical effort to self-represent power” to issue baseline procedures, as processes,”54 and counsel’s “failure to raise was rejected after being found a contriv- has been done in other situations.74 There petitioner’s competence does not establish ance intended to delay the trial,68 one can is precedent under Edwards for following that petitioner was competent.”55 The fact readily find decisions on both sides of the this step where the state’s highest court of the matter is that “[m]any lawyers are self-representation spectrum. For instance, has that authority.75 simply lost dealing with the issue. . . .”56 a court may justifiably deny self-representa- An analysis of Edwards, post-Ed- tion to a defendant whose personal history, wards cases, and related commentary Appointing a “standby” or a “hybrid” mental evaluation, communications with gives insight into what constitution- counsel is a limited step. the court, or demeanor reflects delusional ally acceptable standards might entail. Although “[t]here is no federal constitu- or irrational thoughts that appear likely to Edwards itself characterized representational right to appointment of standby impair the defendant’s cognitive function- tional competence as a function of one’s counsel where a defendant has knowingly ing. That occurred in United States v. Lewis, ability to demonstrate “powers of under- and voluntarily . . . elected to exercise his 69 which affirmed a trial judge’s insistence standing, reasoning, and appreciation.”76 right to self-representation,”57 judges on the defendant being represented by It looked to the joint amicus brief filed have frequently appointed standby coun- counsel, where the defendant’s “disordered by the American Psychiatric Association sel with the proviso that counsel will thinking prevented him from personally (APA) and the American Academy of not unduly impinge on the defendant’s managing the large amount of documen- Psychiatry and the Law, which exam- self-representation.58 tary evidence in this case.”70 ined the “decision-making and cognitive/ JUDICATURE 27

communication capabilities” needed by a ant to assess the clarity and firmness of the defendant representing himself.77 EDWARDS ITSELF defendant’s demand to self-represent, for The APA amicus urged that a pro se CHARACTERIZED a court may be justified in overruling a defendant must understand, among other request to self-represent where the defen- issues, “the exact elements of the crimes REPRESENTATIONAL dant is vacillating.88 charged,” how the prosecution’s evidence The Trial Judge should appoint a foren- relates to these elements, and “what is COMPETENCE AS A sic examiner. While a defendant’s bizarre important to highlight, throughout trial or seemingly irrational verbal commu- and in closing.”78 Further, the APA urged FUNCTION OF nications or written submissions may that the defendant must be able, in both ONE’S ABILITY TO not render the defendant incompetent to oral and written communications, to self-represent, such signals should cause a articulate essential points of his defense, DEMONSTRATE trial court to appoint a qualified forensic stay focused on relevant matters, and to examiner to conduct a thorough compe- communicate with multiple audiences “POWERS OF tency assessment of the defendant.89 Put (the judge, witnesses, jurors, and the simply “[a] determination that the defen- prosecutor), adding that “if a defendant UNDERSTANDING, dant is stricken with delusional or irrational lacks these decisional capacities — and, thoughts . . . should lead the court to some by implication, only such capacities — he REASONING, AND level of suspicion as to the defendant’s will be ‘unable to carry out the basic tasks APPRECIATION.” competency to represent himself.”90 needed to present his own defense without If the court opts to appoint a foren- the help of counsel.’”79 Using these as an sic examiner, it should explain why. The influential starting point, we can derive resulting process should include recog- from the cases a series of checkpoints. a sufficient understanding of court proce- nized testing, interviews of counsel and The Trial Judge should hold an on-the- dures to make at least rudimentary use of those who evaluated the defendant previ- record hearing. Above all else, an on-the- this understanding.”83 An appreciation of ously, and a review of the defendant’s pro record hearing should be held to assess the potential penalties upon a conviction se filings, if any.91 An examination report whether the defendant possesses “basic also should be ascertained.84 should include the examiner’s assessment rationality,” which will require that the And while the defendant’s literacy is of the foregoing information, with opin- court “inquire into whether the defendant not, strictly speaking, an issue addressed ions as to diagnosis and prognosis, and if has non-delusional reasons” to self-repre- in Edwards, it is at least a factor worth the defendant suffers from a severe mental sent.80 The views of the defendant and all considering in deciding whether to allow illness, an opinion as to whether he or she counsel should be solicited.81 self-representation: A judge fairly could can conduct trial proceedings rationally.92 (A) A rational defense strategy. The ask whether a mentally impaired person It also is important to obtain the exam- presiding judge should ensure that the with a limited education would encounter iner’s views as to whether the defendant is defendant understands his Faretta rights undue difficulty presenting a defense.85 malingering or seeking to manipulate the and is seeking to knowingly and intel- (B) The defendant’s deportment. criminal justice system.93 ligently waive them. The court should The defendant’s speech and affect are The Trial Judge should appoint counsel caution the defendant of the pitfalls important and in order to make an for the defendant and define the lawyer’s role. and potential adverse implications of informed decision, the trial judge should A court also should appoint counsel for defending a case by oneself, the need to be particularly alert to and address purposes of an Edwards proceeding and understand basic principles of courtroom whether the defendant’s speech was delineate the role to be played by coun- procedure and the rules of evidence, and disordered. “Given the established rela- sel: full representation, standby or hybrid. to recognize the trial judge cannot assist tionship between disorganized speech Militating in favor of appointing full-time the defendant in trying the case.82 and thought disorders, disorganized counsel for this purpose is the unassailable In addition the judge should deter- speech may be a strong indicator of logic that if competency is at issue, then mine whether the defendant can articulate cognitive impairment and, possibly, it stands to reason “that the court cannot “a rational defense strategy,” and confirm an impaired means of recognizing and predetermine that the same person is capa- that the defendant understands “at least advancing one’s best interests.”86 ble of representing himself in his own on a basic level, the legal elements of the At the same time, courts must be alert competency hearing. If the person truly charged offenses, means of defense if they to the possibility that some speech defects lacks competency, who would be there to exist, and the probative value of the pros- may be simple speech impediments, tics, voice the concern?”94 ecution evidence and whatever evidence or attributable to noncognitive causes such At the least, not merely for the defen- 87 may be available in defense, as well as have as Parkinson’s disease. It is also import- dant’s protection but to guard against 4 28 VOL. 101 NO. 3

ambiguity and subsequent appeals in an courts may maintain control of and clar- 3 Table M4, U.S. District Courts – Criminal Pretrial area already complicated by uncertainties, ify the legal principles, “unify precedent,” Matters Handled by U.S. Magistrate Judges Under a trial judge who chooses to appoint a and provide a defined set of rules.98 28 U.S.C. Section 636(b) During the 12-Month Period Ending September 30, 2016, United States standby counsel should provide standards Courts: Judicial Business, available at http:// to define counsel’s participation in the case. CONCLUSION www.uscourts.gov/sites/default/files/data_tables/jb_ These instructions should include actively In Wade v. Mayo, 99 a case decided 15 years m4_0930.2016.pdf (last accessed June 28, 2017). seeking and providing medical informa- before the Supreme Court recognized a The Administrative Office of the U.S. Courts does not track competency hearings administered by 100 tion to medical examiners, coupled with right to counsel in criminal cases and district court judges. counsel’s independent, candid and objec- 40 years before Edwards, the Court recog- 4 Id. tive observations, arranging meetings nized that mental condition can affect a 5 Faretta v. California, 422 U.S. 806 (1976). with knowledgeable witnesses, analyz- defendant’s capability of self-represen- 6 Id. at 819–20 (giving the Sixth Amendment’s literal ing the forensic report, deciding whether tation. Wade involved an 18-year-old terms “the right to self-representation—to make good faith reasons exist to contest it, and, burglary defendant who was forced to one’s own defense personally—is thus necessarily implied by the structure of the Amendment. The if appropriate, challenging the findings represent himself when his motion for right to defend is given directly to the accused; for — in short, duties that oblige standby counsel was denied. The Court found that it is he who suffers the consequences if the defense counsel to play a meaningful role in help- impermissible and held that: fails”). 7 ing the court make the right call.95 [T]hough not wholly a stranger to the Id. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350–51 (1970) (Brennan, J., concurring)). See also In all events a written decision should Court Room, having been convicted McKaskle v. Wiggins, 465 U.S. 168, 178 (1984). explain the trial judge’s reasoning. of prior offenses, [the defendant] was 8 Id. at 834. Three dissenting justices found no still an inexperienced youth unfamiliar independent constitutional basis for the right to Suggesting a standard of review with Court procedure, and not capable self-representation in a criminal trial. Id. at 836–46 (Burger, C.J., joined by Blackmun and Rehnquist, There remains the issue of ensuring an of adequately representing himself. JJ., dissenting), 846–52 (Blackmun, J, joined by effective review process. Some courts of . . . .There are some individuals who, Burger, C.J., and Rehnquist, J., dissenting). appeals have applied a deferential stan- by reason of age, ignorance or mental 9 Faretta, 422 U.S. at 834. dard of review to matters of competency to capacity, are incapable of representing 10 Id. See also McKaskle, 465 U.S. at 176–77 (explain- self-represent, namely asking whether the themselves adequately in a prosecu- ing that Faretta right “exists to affirm the dignity and autonomy of the accused and to allow the presen- decision was “clearly arbitrary or errone- tion of a relatively simple nature. This tation of what may, at least occasionally, be the 96 ous.” However, this situation also can be incapacity is purely personal and can accused’s best possible defense”). fairly analogized to one involving whether be determined only by an examina- 11 Indiana v. Edwards, 554 U.S. 164 (2008). Faretta rights were violated, which would tion and observation of the individual. 12 Id. at 173–78. See, e.g., Panetti v. Stephens, 727 F.3d call for a de novo standard of review.97 It Where such incapacity is present, the 398, 414 (5th Cir. 2013); United States v. Ferguson, refusal to appoint counsel is a denial of 560 F.3d 1060, 1070 n.6 (9th Cir. 2009); United may be said that decisions of this sensitive States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009); nature, which involve waivers of consti- due process of law under the Fourteenth United States v. DeShazer, 554 F.3d 1281, 1290 tutional rights, call for a nondeferential Amendment.101 (10th Cir. 2009). standard of review in order that appellate 13 Iowa v. Tovar, 541 U.S. 77, 88 (2004). Edwards flowed logically fromWade . 14 Benchbook for U.S. District Court Judges th STEPHEN C. Notwithstanding Faretta’s holding, there §§ 1.02C at 6–7, 1.12 at 51–57 (6 ed. 2013). See also United States v. O’Neal, 2016 U.S. App. LEXIS LECKAR (J.D. are some individuals who by reason of a 23273, *19–*21 (D.C. Cir. Dec. 29, 2016) (noting Duke ’73) is of lack of mental capacity are incapable of Bench Book’s use but stressing review on “the collo- counsel at Kalbian defending themselves in any case, simple quy conducted on the record”); United States v. Ross, Hagerty LLP, 703 F.3d 856, 867 (6th Cir. 2012) (requiring use of or complex. The task of the courts is “questions drawn from, or substantially similar to, the in Washington, to recognize when to say “no” to those model inquiry set forth in the Bench Book. . . .’”). D.C. He practices persons while recognizing that there 15 Memorandum Op. Under Seal at 7, United States commercial and appellate litigation in are others who must be accorded their v. Roof, Cr. 2:15-472-RMD (D.S.C., filed Nov. 30, the federal and state courts. He offers requests to exercise that right. This article 2016), available at https://mgtvwcbd.files.wordpress. com/2016/11/wcbd-competency-hearing-info.pdf special thanks to Robert A.W. Boraks, has sought to identify ways to bring struc- (last accessed January 17, 2017). James Lyons, Edward Sussman, Daniel ture to that process. u 16 E. Lea Johnston, Communication and Competence Prywes and Evan Lisull for their for Self-Representation, 84 Fordham L. Rev. 2121, 2122 (2016) (contending that “existing state insightful comments, to Duke Law 1 Alan Blinder & Kevin Sack, Dylann Roof Found competency standards are constitutionally suspect”) students Glenn Chappell and Zachary Guilty in Charleston Church Massacre, N.Y. Times, [hereinafter “Johnston”]. See also id. at 2124 (char- Dec. 15, 2016, at A1. Newkirk for their editorial assistance, acterizing Edwards’ language as “vague”). 2 Alan Blinder & Kevin Sack, Dylann Roof is Sentenced and to his wife, Bonnie Erbe for her 17 Pate v. Robinson, 383 U.S. 375, 385 (1966) (find- to Death in Charleston Church Massacre, N.Y. Times, ing error in failing to order competency hearing unwavering support. Jan. 10, 2017, at A1. despite petitioner’s self-inflicted wounds, medicated JUDICATURE 29

demeanor and monosyllabic responses); Davis v. Amendment is to ensure a fair trial,’ it ‘does not follow 45 Id. at 1068–69. Woodford, 384 F.3d 628, 646–47 (9th Cir. 2004) that the rights can be disregarded so long as the trial is, 46 Id. (holding that conviction of incompetent defendant on the whole, fair.’” Id. at 184–85 (Scalia, J., joined by 47 Id Edwards, violates due process); Williams v. Woodford, 384 F.3d Thomas, J., dissenting) (emphasis in original). . at 1069 (quoting 554 U.S. at 175–76). 48 34 Id Edwards, 567, 603–04, 608 (9th Cir. 2004); Smith v. Jones, United States v. Ferguson, 560 F.3d 1060, 1070 n.6 . (citing 554 U.S. at 177) (emphasis in 2015 U.S. Dist. LEXIS 15420, *17–*18 (N.D. Fla. (9th Cir. 2009) (quoting United States v. DeShazar, original). 49 Jan. 13, 2015). 554 F.3d 1281, 1290 (10th Cir. 2009) (emphasis in Id. 18 Tovar, 541 U.S. at 87–88 (citations and internal original)). 50 Id. quotation marks omitted). 35 Edwards, 554 U.S. at 178. 51 Drope, 420 U.S. at 178 n.13. See also United States 19 United States v. Johnson, 610 F.3d 1138, 1139 (9th 36 Id. at 177. v. Stafford,782 F.3d 786, 790, 791 (8th Cir. 2015); 37 United States v. VanHoesen Cir. 2010). Johnston, supra note 16, at 2127. , 450 Fed. Appx 57, 62 20 Dusky v. United States 38 (2d Cir. 2011) (counsel’s failure to alert the court , 362 U.S. 402 (1960). See, e.g., United States v. Duncan, 643 F.3d 1242, 21 Edwards, 554 U.S. at 170 (citing Dusky, 362 U.S. at to concerns regarding VanHoesen’s competence 148–49 (9th Cir. 2011) (competency to waive to self-represent “provides substantial evidence of 402). capital appeal); United States v. Arenburg, 605 F.3d 22 defendant’s competence”); United States v. Savage, Drope v. Missouri, 420 U.S. 162 (1975). 164, 168–69 (2d Cir. 2010) (defendant repeatedly 505 F.3d 754, 760 (7th Cir. 2007) (“Significant 23 Edwards, 554 U.S. at 170 (emphasis original). See referred to “a conspiracy involving MGM Studios weight given to counsel’s representations and fail- also Douglas v. Woodford, 316 F.3d 1079, 1094 (9th and the government with the object of publicly ure to raise the competency issue”); Boyde v. Brown, Cir. 2003) (holding that competence to stand trial broadcasting his thoughts”); United States v. Ruston, 404 F.3d 1159, 1167 (9th Cir. 2005); Klat, 213 F.3d requires defendant’s ability ‘to consult with his lawyer 565 F.3d 892, 901–03 (5th Cir. 2009) (defendant at 703; Lay v. Trammell, 2015 U.S. Dist. LEXIS with a reasonable degree of rational understanding’ asserted that “law enforcement organizations and 136793, *55 & n.7 (N.D. Okl. Oct. 7, 2015) (capi- and a ‘rational as well as factual understanding of the others,” including Katie Couric, were attempting tal case), aff’d,622 Fed. Appx. 772 (10th Cir. 2015). proceedings against him.’) (citation omitted). to murder him); United States v. Ghane, 490 F.3d Courts should also be alert to the prosecution signal- 24 Edwards, 554 U.S. at 175. 1036, 1040–41 (2d Cir. 2007) (defendant’s under- ing concerns with the defendant’s mental health. 25 standing “was not rational because it was premised E.g., Ross, 703 F.3d at 867–68. Id. at 176–77; United States v. Thompson,587 F.3d on his delusion of a government conspiracy working 52 Bundy v. Dugger, 1165, 1172 (9th Cir. 2009). against him”); United States v. Jones, 336 F.3d 245, 816 F.2d 564, 566 n.2 (11th 26 Thompson v. Wainwright Edwards, 554 U.S. at 175 (citing and quoting 255–60 (7th Cir. 2003) (sentencing); United States Cir. 1987) (quoting , 787 N. Poythress, R. Bonnie, J. Monahan, R. Otto, v. Boigegrain, 155 F.3d 1181, 1189–90 (10th Cir. F.2d 1447, 1451 (11th Cir. 1986) (counsel cannot & S. Hoge, Adjudicative Competence: The 1998) (defendant “believe[d] that his lawyer was “‘blindly follow’” defendant’s instructions . . . partic- MacArthur Studies 103 (2002) (“Within each participating in a conspiracy, along with the pros- ularly if counsel has reason to believe defendant’s domain of adjudicative competence (competence ecutor and the judge”); Nicks v. United States, 955 judgment impaired by “‘mental difficulties’”). 53 to assist counsel; decisional competence) the data F.2d 161, 166–69 (2d Cir. 1992) (granting coram See, e.g., Blakeney v. United States, 77 A.3d 328, indicate that understanding, reasoning, and appre- nobis); United States v. Auen, 846 F.2d 872, 874–78 344–49 (D.C. 2013) (“counsel should not lightly ciation [of the charges against a defendant] are (2d Cir. 1988) (severe paranoid delusional ideation). disregard credible medical opinion of incom- 39 An Attorney’s Dilemma: separable and somewhat independent aspects of See generally Johnston, supra note 16, at 2128–2139 petency”); Sarah Hur, Representing A Mentally Incompetent Client Who Does functional legal ability.”)). & nn. 44–125 (citing cases). 27 Edwards, 554 U.S. at 176 (citation omitted). 40 Not Wish To Raise Mental Illness Issues In Court, 27 Johnston at 2136 & nn. 91–99, 2140 & nn. 128–32 Geo. J. Legal Ethics 555 (2014); Christopher 28 Id. at 172–74. Edwards also referred to “mental (citations omitted); Ellesha Lecluyse, Note, The Slobogin & Amy Mashburn, The Criminal Defense derangement,” id. at 175, “borderline-competent,” Spectrum of Competency: Determining a Standard Lawyer’s Fiduciary Duty to Clients with Mental id. at 171, and “severe mental illness,” id. at 176, of Competence for Pro Se Representation, 65 Case Disability, 68 Fordham L. Rev. 1581, 1621–27 177. W. Res. L. Rev. 1239, 1253–54 (2015) [hereaf- 29 (2000) (contending that counsel must seek appro- Edwards, 554 U.S. at 173. In addition, Edwards ter “Lecluyse”]. Professor Johnston suggests that priate treatment where client believed to suffer observed that allowing borderline-competent defen- the impact of certain mental illnesses, “particularly from mental issues). An example of how judges dants to represent themselves would not be respectful those that do not carry symptoms of psychosis, is sitting on the same case may hold widely varying of their autonomy and could result in a “humiliat- uncertain” and argues that “it is unclear whether views of counsel’s duties in these delicate situations ing” spectacle. Id. at 176. As Blackstone observed, a personality disorders can ever qualify as severe is reflected in one of the “Unabomber” appeals. court could not try a defendant who became “mad” mental illnesses.” Johnston, supra note 16, at 2160. Compare United States v. Kaczynski, 239 F.3d 1108, 41 after pleading, “for how can he make his defense?” 4 See generally Johnston, supra note 16. 1118–19 (9th Cir. 2012) (majority) with id., 239 William Blackstone, Commentaries, at*24. 42 McKaskle, 465 U.S. at 177 n.8. See also United States F.3d at 1122–28 (Reinhardt, J., dissenting). 30 Id. at 178. Although Edwards arose in the state v. Davila, 133 S. Ct. 2139, 2149 (2013) and United 54 United States v. Salley, 246 F.Supp.2d 970, 976 courts, its holding extends to federal courts. United States v. Gonzalez-Lopez, 548 U.S. 140, 149 (2006). (N.D. Ill. 2003) (delusional onset disorder). States v. Berry, 565 F.3d 385, 392 (7th Cir. 2009). 43 A trial judge may “terminate self-representation 55 31 Odle v. Woodford, 238 F.3d 1084, 1088–89 (9th Edwards, 554 U.S. at 177. Edwards moved away by a defendant who deliberately engages in serious Cir. 2001) (reversing denial of habeas writ). See also from precedent which had “reject[ed] the notion and obstructionist misconduct.” Faretta, 422 U.S. United States v. Jones, 336 F.3d 245, 259 (3d Cir. that competence to plead guilty or to waive the right at 834 n.46 (citing Illinois v. Allen, 397 U.S. 337 2003) (“[W]e cannot afford appreciable weight to to counsel must be measured by a standard that is (1970)); see also United States v. Weast, 811 F.3d 743, defense counsel’s silence … [absent] any evidence in higher than (or even different from) theDusky stan- 749 (5th Cir. 2016). “Admittedly, neither [Faretta the record that might explain why he chose not to dard.” Godinez v. Moran, 509 U.S. 389, 398 (1993). nor Allen] involved someone with a mental illness. raise the issue.”). 32 Edwards, 554 U.S. at 171. Nevertheless, the same logic applies to situations 56 John Wesley Hall, Jr., Professional Responsibility 33 Id. at 177–78. A vigorous dissent in Edwards asserted involving a mentally ill defendant.” Conor Cleary, in Criminal Defense Practice 455, 457 (2005). Flouting Faretta: The Supreme Court’s Failure to Adopt that “[w]hile one constitutional requirement must yield 57 United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997). to another in case of conflict, nothing permits a State, a Coherent Communication Standard of Competency 58 See McKaskle, 465 U.S. at 176–79; Faretta, 422 U.S. because of its view of what is fair, to deny a constitu- and the Threat to Self-Representation After Indiana v. at 834 n.46; United States v. Anzaldi, 800 F.3d 872, tional protection” personal to the accused. Although Edwards, 63 Okla. L. Rev. 145, 165 (2010). 44 560 F.3d 1060 (9th Cir. 2009). 876 (7th Cir. 2015). ‘the purpose of the rights set forth in [the Sixth] 4 30 VOL. 101 NO. 3

59 McKaskle itself “logically implies that standby coun- petitioner’s “appropriate and logical conduct” in order to assess the defendant’s ‘reasoning capacity sel is not the equivalent of ‘counsel’ within the proceedings below); Williams v. United States, 137 or ability to employ logical thought processes to meaning of the Sixth Amendment. . . .” Robinson v. A.3d 154, 157–59, 160–62 (D.C. 2016) (“trial compare the risks and benefits’ of [the] different Ignacio, 360 F.3d 1044, 1060 n.10 (9th Cir. 2004). court noted that appellant had filed and argued option”); Ashley Beck, Indiana v. Edwards: The 60 Nicholas Smit, The Right to Counsel? A Heightened his pro se motions and was able to form his defense Prospect of a Heightened Competency Standard for Standard of Competence for Standby Counsel in theories . . . demonstrated appellant’s knowledge Pro Se Defendants, 84 U. Colo. L. Rev. 434, 458 Competency Hearings, 2014 Fed. Cts. L. Rev. 163 of the law and his ability to participate in the legal (2013) (defendants “who . . . suffer[] from delu- [hereinafter “Smit”] (noting “confusion surround- proceedings”); State v. Bird, 858 N.W.2d 642, sions and exhibit[] extreme and bizarre behavior ing the role of standby counsel” in competency 646–49 (N.D. 2015) (two competency examina- . . . would likely be incapable of adequately and proceedings). tions; defendant impeached witnesses at trial and competently executing their own defenses without 61 had coherent strategy). the assistance of counsel”). United States v. Cronic, 466 U.S. 648, 656 (1984) 73 84 (“The right to the effective assistance of counsel is See generally Johnston, supra note 16, at 2128–40. Klessig, 211 Wis. 2d at 206, 564 N.W.2d at 721–22. 74 85 thus the right of the accused to require the prose- See, e.g., United States v. McDowell, 814 F.2d 245, Jordan v. Hepp, 831 F.3d 837, 845–46 (7th Cir. cution’s case to survive the crucible of meaningful 249–50 (6th Cir. 1987). See also United States v. 2016). adversarial testing.”). Cicero, 22 F.3d 1156, 1160–61 & n.5 (D.C. Cir. 86 Johnston at 2140–41 & n. 134. See also Valdez v. 62 See, e.g., United States v. Kowalczyk, 805 F.3d 847, 1994) (citing McNabb v. United States, 318 U.S. State, 2015 WL 302272, at 3–4, 9–11, 2015 Ind. 858–59 (9th Cir. 2015) (quoting Ross, 703 F.3d at 332, 341 (1943)). See generally Sara Sun Beale, App. Unpub. LEXIS 52, *7–*8 (Ind. Ct. App. Jan. 872; Wise v. Bowersox, 136 F.3d 1197, 1203 (8th Reconsidering Supervisory Power in Criminal Cases: 22, 2015) [(paranoid delusional disorder; “The Cir. 1998); United States v. Purnett, 910 F.2d 51, Constitutional and Statutory Limits on the Federal Defendant’s . . . assertion that there is ‘totempole’ 55–56 (2d Cir. 1990)). Courts, 84 Colum. L. Rev. 1433 (1984); L. Douglas hearsay is incomprehensible.”)], aff’d, 28 N.E.3d Harris, Supervisory Power in the United States Courts of 63 Anne Bowen Poulin, Ethical Guidance for Standby 246 (Ind. 2015)). Appeals 87 , 63 Cornell L. Rev. 641 (1978). Johnston, supra note 16, at 2163 & nn. 295–96. Counsel In Criminal Cases: A Far Cry From Counsel, 75 State Competence Standards for Self- 88 50 Am. Crim. L. Rev. 211, 243–44 (2013). Jason Marks, See, e.g., Letell v. LeBlanc, 2016 U.S. Dist. LEXIS Representation in a Criminal Trial: Opportunity and 64 Hybrid Representation: Standing 81841, *31–*32, *43 (E.D. La. June 8, 2016) Joseph A. Colquitt, Danger for State Courts after Indiana v. Edwards, 44 the Two-Sided Coin on Its Edge, 38 Wake Forest L. (applying Edwards; record reflected that petitioner’s Univ. San Francisco L. Rev. 825, 841 n.72 (2010) requests to exercise Faretta right were equivocal). Rev. 55, 56–57 (2003) [hereinafter “Colquitt”]. [hereinafter “Marks”]. See, e.g., State v. Jackson, 363 65 Randolph v. Cain, 412 F. Appx 654, 658 (5th Cir. See also Miller v. Prelesnik, 2016 U.S. Dist. LEXIS Wis. 2d 484, 498–99, 503–04, 867 N.W.2d 814, 158476, *25–*27 W.D. Mich. Nov. 16, 2016) 2010); Wilson v. Hurt, 39 Fed. Appx 324, 327 (6th State v. Connor, 821 (2015); 292 Conn. 483, 973 (upholding state court determination that petition- Cir. 2002). A.2d 627, 650–51 (2009); In re Amendments to 66 er’s request was equivocal). Colquitt, supra note 64, at 70 & n.77 (citing Florida Rule of Criminal Procedure 3.111, 17 So. 3d 89 McKaskle, 465 U.S. at 183). 272, 275 (Fla. 2009). Berry, 565 F.3d at 387. Of course, federal courts can rely upon 18 U.S.C. § 4241 when a defen- 67 See Clemons v. Pfister 76 Johnston, supra note 16, at 2127 & n.29 (citing , 845 F.3d 816, 820 (7th Cir. dant’s competency to stand trial is at issue. That Edwards, 554 U.S. at 176) (internal citations 2017) (discussing Illinois’s rule disfavoring hybrid statute calls for a defendant who has been adjudged omitted). representation). incompetent to stand trial to be committed “to the 68 77 United States v. Weast, 811 F.3d 743, 749 (5th Cir. Edwards, 554 U.S. at 176 (citing Brief for Am. custody of the Attorney General” for hospitaliza- 2016)). Psychiatric Ass’n et al. as Amici Curiae Supporting tion and treatment. 18 U.S.C. § 4241(d) (2012). 69 612 Fed. Appx. 172 (4th Cir. 2015). Neither Party, Indiana v. Edwards, 128 S. Ct. 2379 Although hospitalization may be appropriate if a 70 (2008) (No. 07-208), available at http://www.amer- Id.,. at 176. See also United States v. Cox, 2015 U.S. defendant is obviously delusional or is unable to icanbar.org/content/dam/aba/publishing/preview/ Dist. LEXIS 137297, *2 (W.D. Ky. Oct. 8, 2015) demonstrate even basic competency to stand trial, publiced_preview_briefs_pdfs_07_08_07_208_ (“[D]efense theories . . . little more than gibberish”). such commitment is an extreme step that is often 71 NeutralAmCuAPAAAPL.authcheckdam.pdf inappropriate for defendants who present closer United States v. Barefoot, 754 F.3d 226, 231–32, (last accessed June 28, 2017)) [hereinafter “APA questions of competency. In those cases, appoint- 234–35 (4th Cir. 2014). See also Smith v. Warden, Amicus”]. See also United States v. Ross, 619 Fed. ment of an independent examiner would seem a 2016 U.S. Dist. LEXIS 34227, *28–*34 (C.D. Appx. 453, 456–57 (6th Cir. 2015) (referring to far more proportional and appropriate step to take Cal, Feb. 8, 2016) (“Petitioner’s mental illness, as APA Amicus). before ordering a defendant to be hospitalized in a well as his demonstrated behavioral and miscon- 78 APA Amicus, supra note 77 at 24. government-run clinic. duct issues when in court, would interfere with his 79 90 competency to represent himself and could result in Johnston, supra note 16, at 2155 & n.254 (quoting E. Lea Johnston, Representational Competence: trial disruption”); Shorthill v. State, 354 P.3d 1093, Edwards, 554 U.S. at 175–76). Defining the Limits of the Right to Self-Representation 1098, 1110–11 (Alaska Ct. App. 2015) (defendant 80 Christopher Slobogin, Mental Illness and Self- at Trial, 86 Notre Dame L. Rev. 523, 595 (2011) “was unable to organize his defense, he was unable Representation: Faretta, Godinez and Edwards, 7 (“A determination that the defendant is stricken to focus on meaningful motions or relevant points Ohio St. J. Crim. L. 391, 401–07 (2009). with delusional or irrational thoughts . . . should of law, and his questioning of witnesses and his 81 See Medina v. California, 505 U.S. 437, 450 (1992). lead the court to some level of suspicion as to the arguments to the court were largely ineffectual”); See also Lecluyse, supra note 40, at 1262. defendant’s competency to represent himself”). People v. Johnson, 82 Court appointment of forensic examiners to eval- 267 P.3d at 1135–36 (delusional Benchbook for U.S. District Court Judges, State uate competency is not novel. Courts have on thought disorder and conspiracy paranoia); at §§ 1.02C at 6–7, 1.12 at 51–57, provides useful v. Jason, 779 N.W.2d 66, 74 (Iowa Ct. App. 2009) occasion used forensic examiners to assess litigant questions on the Faretta issue but, again, does not competency in civil cases while considering guard- (Asperger’s syndrome). address Edwards. Available at http://www.fjc.gov/ 72 ian ad litem appointment pursuant to Rule 17(c) 782 F.3d at 789–90. See also VanHoesen, 450 Fed. public/pdf.nsf/lookup/Benchbook-US-District- (2). See, e.g., Scannavino v. Florida Dep’t of Corr., Appx at 62 (rejecting claim that pro se defense was Judges-6TH-FJC-MAR-2013-Public.pdf/$file/ 242 F.R.D. 662, 663 (M.D. Fla. 2007) (discussing a “travesty” reflecting “awful judgment;” trial judge Benchbook-US-District-Judges-6TH-FJC-MAR- the findings of a “Forensic Psychiatric Evaluation” considered competency evaluations); United States 2013-Public.pdf (last accessed June 28, 2017). of the plaintiff’s competency); see also Krain v. v. Saba, 837 F.Supp.2d 702, 702-11 (W.D. Mich. 83 Marks, supra note 75, at 846. See also LeCluyse, Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) 2011) (granting self-representation after extensive supra note 40, at 1251–67 (“defendant [must] show (“The preferred procedure when a substantial ques- analysis); Dixon v. Ryan, 2016 U.S. Dist. LEXIS the logic behind [the] decision-making process in tion exists regarding the mental competence of a 33999, *32-*33 (D. Ariz. Mar. 16, 2016) (citing JUDICATURE 31

party proceeding pro se is for the district court to ing forensic psychiatric evaluation, considering and the same time be convinced that the defendant conduct a hearing to determine whether or not the defendant’s prior diagnosis of delusional disorder has knowingly and intelligently waived his right to party is competent, so that a representative may and intense preoccupation with religion); Williams, counsel.”). be appointed if needed.”). This is possible because 137 A.3d at 157–161 (defendant’s competency eval- 95 See, e.g., Kowalczyk, 805 F.3d at 859 (amicus nothing in that Rule “prevents a district court from uated twice); APA Amicus, supra note 77, at 28–29 “advocated for the same incompetency position” exercising its discretion to consider sua sponte the (identifying forensic assessment instruments). See as defendant, filed a 69-page brief, cross-examined appropriateness of appointing a guardian ad litem also Wright v. Bowersox, 720 F.3d 979, 984–85 (8th government expert and called Kowalczyk’s parents for a litigant whose behavior raises a significant Cir. 2013) (four psychiatric experts had testified and another expert as friendly witnesses; district question regarding his or her mental competency.” in state proceedings and trial judge explained its court characterized service as “truly masterful”); Ferrelli v. River Manor Health Care Ctr., 323 F.3d observations). United States v. Ross, 619 Fed. Appx. 453 (6th Cir. 196, 203 (2d Cir. 2003). 92 Mabie, 2014 U.S. Dist. LEXIS 99863, at *4–*5 2015) (post-remand decision). 91 See, e.g., United States v. Hernandez-Vasquez, 2016 (specifying topics to be discussed); Saba, 837 F. 96 See, e.g., United States v. McKinney, 737 F.3d 773, U.S. Dist. LEXIS 125821,*6–*7 (S.D. Cal. Sept. Supp.2d at 706–07 (appointing board-certified 777 (D.C. Cir. 2013); United States v. Johnson, 610 24, 2016) (court ordered two psychiatric evalua- forensic psychiatrist); Ronald Roesch & Patricia F.3d 1138, 1145 (9th Cir. 2010); United States v. tions and concluded defendant could self-represent Zapf, Forensic Assessments in Criminal and Berry, 565 F.3d 385, 389–90 (7th Cir. 2009); notwithstanding “Defendants low average intellec- Civil Law: A Handbook for Lawyers 28 (2013). Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. tual functioning, anxiety and general fearfulness, 93 See, e.g., Kowalczyk, 805 F.3d at 852–56 (discussing App. 2010). United States v. Belion 97 poor reasoning and insight”); , extended proceedings); Williams, 137 A.3d at 161 See, e.g., United States v. Smith, 830 F.3d 803, 809 2016 U.S. Dist. LEXIS 110340, *2–*3 (N.D. Fla. & n.8 (no evidence of malingering). (8th Cir. 2016) (applying de novo standard); United Aug 16, 2016) (following two competency exam- 94 Smit, supra note 60, at 174 (footnotes and inter- States v. Gerritsen, 571 F.3d 1001, 1006 (9th Cir. inations, “nonsensical” pleadings and inability to nal citations omitted). As pointed out in Ross, it is 2009); United States v. Gewin, 471 F.3d 197, 199 answer “straightforward questions” court denied “contradictory to conclude that a defendant whose (D.C. Cir. 2006); State v. Bird, 858 N.W.2d at 646; Hughes v. Biter, self-representation); 2016 U.S. competency is reasonably in question could never- State v. Jackson, 63 Wis. 2d at 497–98, 867 N.W.2d Dist. LEXIS 83910, *50 (E.D. Cal. June 28, 2016) theless knowingly and intelligently waive her Sixth at 821. (“two of the experts opined that Petitioner was not Amendment right to counsel. Such a defendant may 98 Ornelas v. United States, 517 U.S. 690, 696–97 competent to represent himself, providing detailed not proceed pro se until the question of her compe- explanations for their conclusions”); United States (1996). tency to stand trial has been resolved.” Ross, 706 99 v. Mabie, 2014 U.S. Dist. LEXIS 99863, *3 (S.D. Wade v. Mayo, 334 U.S. 672 (1948). F.3d at 870 (citation omitted). See also United States 100 Ill., July 22, 2014) (appointing independent psychi- v. Purnett, 910 F.2d 51, 55 (2d Cir. 1990) (“[T]he Gideon v. Wainright, 372 U.S. 335 (1963). 101 atric/psychological examiner; setting forth topics to trial court cannot simultaneously question a defen- Wade, 334 U.S. at 683–84. Saba, address); 837 F. Supp.2d at 706–09 (describ- dant’s mental competence to stand trial and at one 32 VOL. 101 NO. 3

NICE TRY. JUDICATURE 33

WHEN CONTRACTS SEEK TO PREEMPT JUDICIAL DISCRETION

BY J. TRAVIS LASTER AND KENNETH A. ADAMS

ontracts can lead to litigation. desired conclusion. Imagine a rule of don’t propose them as models. They It’s standard for drafters to antic- judicial interpretation that “up means simply illustrate points we address. ipate litigation by including in down.” A contract could employ the first a contract rules for interpreting technique by saying “The up-means- STATING THAT A JUDICIAL RULE OF it. That’s why contracts usually specify down rule does not apply.” It could use INTERPRETATION DOESN’T APPLY Ca governing law.1 And a contract might the second technique by saying “Up In contract disputes, courts invoke rules replace default rules governing a claim means only up.” Or it could use the third of interpretation to attribute meaning to for breach, for example, by reducing the technique to say “Up is to be interpreted confusing or disputed contract language. period for bringing claims.2 to mean only up.” By contrast, the fourth Judicial rules of interpretation are gener- But drafters also use the following four technique characterizes a situation as the alized notions, pieced together by courts techniques to try to control how a court parties see fit, whether or not that’s justi- and commentators over time, about the interprets a contract: fied by the facts. most likely meaning that writers express, • stating that a judicial rule of inter- Commentators have paid little atten- and readers derive, in a given context. pretation doesn’t apply tion to these techniques. This article Courts use rules of interpretation as an • stating an internal rule of considers each technique and how courts alternative to the messy and often impos- interpretation have reacted or might react. sible task of determining what meaning • stating how a court is to act in a This article uses examples from the parties to a contract had actually given context contracts filed by public companies intended. In this sense, rules of interpre- • stating that a particular standard on the U.S. Securities and Exchange tation are arbitrary. That perhaps explains applies Commission’s EDGAR system. In this why they are also called, more grandly, article, those examples are highlighted “canons of construction.”3 Canon means a Each of these techniques seeks to in sans serif text and set off by horizon- rule that has been accepted as fundamen- preempt judicial discretion. The first tal lines. We didn’t select examples for the tal4 so presumably those who wield the three operate by steering a court to a quality of the drafting, and we certainly term “canons of construction” think it connotes that sort of solidity and not the expediency that actually underlies use of judicial rules of interpretation. Judicial rules of interpretation have their supporters, notably Antonin Scalia and Bryan Garner, coauthors of Reading Law: The Interpretation of Legal Texts.5 But judicial rules of interpretation also have their critics. For example, consider the shortcomings of one rule of interpreta- NICE TRY. tion, the rule of the last antecedent.6 4 34 VOL. 101 NO. 3

. . . if two businesses, each represented by counsel, enter into a contract, then arguably both sides should be considered responsible for how it’s worded.

Scalia and Garner identify 37 “canons” they are.10 That’s not surprising, in that ence directly how part of a contract is that they say apply to all texts, includ- the Delaware Court of Chancery has also interpreted. ing contracts.7 Contract drafters appear held that contra proferentem is best applied We haven’t found caselaw on whether wary of two in particular, as suggested by to standardized contracts and when the provisions that purport to neutralize contracts on EDGAR stating that one or drafting party has the stronger bargaining ejusdem generis are enforceable, but we the other, or both, don’t apply. position.11 It follows that courts shouldn’t suspect that some courts would be skep- object if contract parties who negotiate a tical. For one thing, courts are partial to Stating That Ambiguities Are Not to Be transaction from a position of compara- invoking ejusdem generis.15 For another, a Construed Against the Drafter tive equality elect to make it explicit that court might be confused about how far The first of the disfavored rules is known contra proferentem doesn’t apply. to go when applying such a provision: by the Latin name contra proferentem, mean- does it preclude ever limiting a general ing “against the offeror.”8 According to Stating ThatEjusdem Generis statement, or does it just preclude rote this rule, if a contract provision is ambig- Doesn’t Apply application of ejusdem generis? If the latter, uous, the preferred meaning should be the The second disfavored rule of interpretation a court could still limit a general state- one that works against the interests of the is known by the Latin name ejusdem generis. ment if the context suggests that’s what party that provided the wording. Here’s how Scalia and Garner express it: the parties intended. Here’s how the Restatement (Second) of Where general words follow an So as not to give a court an excuse to Contracts states it: enumeration of two or more things, apply ejusdem generis, and to avoid any In choosing among the reasonable they apply only to persons or things of risk involved in attempting to neutral- meanings of a promise or agreement or the same general kind or class.12 ize ejusdem generis, specify an appropriate a term thereof, that meaning is gener- general class and rely on it — don’t also ally preferred which operates against the In other words, in a reference to dogs, list members of the general class.16 party who supplies the words or from cats, horses, cattle, and other animals, this whom a writing otherwise proceeds.9 rule of interpretation “implies the addi- STATING AN INTERNAL RULE OF tion of similar after the word other,” so INTERPRETATION But if two businesses, each represented other animals doesn’t mean any animal, it In addition to or instead of seeking to by counsel, enter into a contract, then means other similar animals.13 exclude judicial rules of interpretation, arguably both sides should be considered Applying ejusdem generis is fraught drafters also include in contracts their own responsible for how it’s worded. That’s with uncertainty,14 so some drafters seek rules of interpretation — what we call presumably why some drafters include to neutralize it. Here’s an example of how “internal” rules of interpretation. You find in contracts a version of the following one contract attempts to accomplish that: them stated in separate sections or gath- provision: ered together in one section, often under [T]he rule of ejusdem generis shall not be the heading Interpretation. Some internal The rule of construction that provides that applicable to limit a general statement, rules of interpretation track judicial rules ambiguities in a contract shall be construed followed by or referable to an enumeration of interpretation, for example ejusdem generis against the drafter shall not apply to this of specific matters, to matters similar to those and contra proferentem, whereas others seek Settlement Agreement because each Party specifically mentioned . . . . to negate judicial rules of interpretation. drafted its terms, and all Parties waive applicability of such rule of construction in In contrast to provisions neutralizing Stating That Headings Don’t Affect Meaning interpreting this Settlement Agreement. the rule of contra proferentem, which oper- An example of an internal rule of interpre- ate indirectly by establishing a general tation that seeks to negate a judicial rule Are such provisions enforceable? The rule based on the sophisticated nature of of interpretation is the headings-for-con- Delaware Court of Chancery has held that the parties, this provision seeks to influ- venience provision. Here’s an example: JUDICATURE 35

First Mutual argued that the parenthet- internal rule reinforces the judicial rule of The headings in this Agreement are included ical “(UK AND BERMUDA INSURERS interpretation Scalia and Garner call the for convenience and will not affect the mean- ONLY)” was part of the endorsement’s “presumption of nonexclusive ‘including’” ing or interpretation of this Agreement. title, and by operation of the head- — “The verb to include introduces exam- ings-for-convenience provision, the title ples, not an exhaustive list.”24 Using the The utility of this statement, however did not limit the endorsement to insurers internal rule also allows you to “rigorously drafters word it, has been explained as of those countries. The court disagreed, avoid the cumbersome phrasing each time follows, using the word captions instead of calling it a “thin argument” and saying, you want to introduce examples.”25 headings: “The purpose of the Titles Clause is not to But elsewhere, Garner says that the [T]he content of the captions all too strip away an express indication as to the phrases including but not limited to, includ- often diverges from the substance of the context in which a particular provision is ing without limitation, and including without contract. In part, this is because captions operative, but to ensure that the text of a limiting the generality of the foregoing serve are an extremely truncated description provision is not discounted or altered by a different function: they’re “intended to of complex text. However, divergences the words of its heading.”21 defeat three canons of construction: expres- also may arise because captions are not If it’s clear that because of careless sio unius est exclusion alterius (‘to express drafted or reviewed with the same care drafting a heading doesn’t match what’s in one thing is to exclude the other’), nosci- and scrutiny as the text, or because time the related provision, a headings-for-con- tur a sociis (‘it is known by its associates’), pressures do not afford the opportu- venience provision would accomplish only and ejusdem generis (‘of the same class or nity to conform captions to last-minute what a court would likely do anyway. If nature’).”26 changes to the text.17 it’s arguable that a unique component of Without considering whether, and a heading reflects the intended scope of how, each of those three judicial rules of Incorporating a headings-for-conve- the related provision, then a court might interpretation relates to this issue, it’s nience provision counters what Scalia and ignore a headings-for-convenience provi- clear that Garner has in mind avoiding, for Garner call the “title-and-headings canon,” sion, just as the Second Circuit did. That example, having the phrase fruit, including which holds that “[t]he title and headings makes headings-for-convenience provi- oranges, lemons, and grapefruit interpreted are permissible indicators of meaning.”18 sions of questionable use to drafters. so that fruit means only fruit similar to A 2016 Second Circuit opinion those listed, namely citrus fruit. addressed a headings-for-convenience pro- Stating That Examples Introduced by It’s easy to reconcile Garner’s conflict- vision.19 The parties to a reinsurance Including Don’t Limit the General Class ing rationales: the internal rule of contract disagreed over which arbitration Consider the following example of an interpretation could logically be intended provision governed their dispute, one in internal rule: to preclude attributing any limiting effect the reinsurance certification or another to items following including, whether that in an endorsement. First Mutual sought As used in this Loan Agreement, the term limiting effect consists of interpreting to compel its reinsurer, Infrassure, to “including” means “including, but not those items to be an exhaustive list or submit to arbitration governed by the limited to” or “including, without limitation,” requiring the class in question to consist endorsement, but that arbitration provi- and is for example only and not a limitation. only of items similar to the listed items. sion contained the heading “LONDON Regarding whether courts would ARBITRATION AND GOVERNING Adding this rule, however it’s respect his proposed internal rule, Garner LAW (UK AND BERMUDA INSURERS expressed, is a more concise alternative says, “Will judges take such a definition ONLY).” Because Infrassure, a Swiss to always using including but not limited seriously? Generally, yes. I defy anyone company, wasn’t a United Kingdom to, including without limitation, or including to produce a case in which this definition or Bermuda insurer, it argued that the without limiting the generality of the foregoing hasn’t worked, so that including defined endorsement provision didn’t apply. In instead of just including. in this way has nevertheless been held to response, First Mutual pointed to the On Twitter22 and on his blog,23 Bryan introduce an exhaustive listing.”27 following headings-for-convenience provi- Garner has recommended that to ensure We won’t take Garner up on his chal- sion in the endorsement, which the court that including isn’t interpreted as introduc- lenge, as it seems unlikely that a court referred to as the “Titles Clause”: “The ing an exhaustive list, including should would deem a list exhaustive even if it’s several titles of the various paragraphs be defined to mean including but not limited introduced as not being limited. More rele- of this Certificate (and endorsements . . . to. In other words, the definition would vant are those cases in which courts endorse attached hereto) are inserted solely for preclude the phrase fruit, including oranges, the notion that a group followed by a list of convenience of reference and will not be lemons, and grapefruit from being inter- items introduced by including but not limited deemed in any way to limit or affect the preted so that fruit means only oranges, to is limited to items similar to the listed 20 28 provisions to which they relate.” lemons, and grapefruit. As such, this items. That interpretation is less limiting 4 36 VOL. 101 NO. 3

than holding that a list is exhaustive, but that otherwise might not fall within its To show that the above list is incomplete, it’s nevertheless limiting, and in a way that scope — fruit, including tomatoes. (Are toma- here’s an example that uses a different verb drafters might not expect. So because it toes a fruit or a vegetable? Your answer structure to say that a court has the author- ignores the real threat, Garner’s challenge might depend on whether you’re a botanist ity to rule on the law and facts of a lawsuit: is too narrow to be meaningful. or a cook.) Doing so leaves little possibility That some courts disregard but not for mischief. Because tomatoes lurks at the Each party hereby agrees that any such court limited to shouldn’t come as a surprise. A margins of fruit, a court couldn’t reason- shall have in personam jurisdiction over it and court handling a contract dispute will ably conclude that fruit in fact means only consents to service of process in any manner want to determine the meaning intended tomatoes or tomato-like produce. authorized by Nevada law. by the drafter. In the process, it might If a client’s needs in a transaction leave elect to disregard any language unre- you no choice but to include a list of obvi- Similarly, various verb structures aim lated to that. Given that it’s routine for ous members of a class, put the general class to prohibit a court from doing something: drafters to add without limitation or but not after the list and modify the general class • the court shall/may not construe limited to to each instance of including (and to block any implication that the items in • no court shall/may construe without limitation or but is not limited to to the list limit the general class — oranges, • X shall/may not be construed as each instance of includes), a court could lemons, grapefruit, and other fruit, whether or • neither X nor Y is to be construed as conclude that such phrases are essentially not citrus. As a way to make it clear that the • X is not to be construed as meaningless. It could equally conclude examples cited aren’t the whole story, that’s • nothing in this agreement is to be that an internal rule of interpretation that more effective than using including but not construed as has the same effect is irrelevant too. limited to and its variants. After all, drafters sometimes misuse And there are other ways to say that including to mean “namely,” which would STATING HOW A COURT IS TO CONDUCT ITSELF a court is prohibited from doing some- make the list of examples exhaustive.29 Drafters also seek to preempt judicial thing. Here are two examples, with the Or drafters might use an overbroad noun discretion by specifying in a contract what latter having the same effect as an internal before includes or including, so that the a court may do, is not authorized to do, or rule of interpretation meant to neutralize narrow list that follows including better must do. ejusdem generis:32 expresses the intended meaning (as in, Various verb structures are used to conceivably, fruit, including oranges, lemons, ostensibly grant a court discretion. Here’s No prior drafts of this Agreement or any and grapefruit). If a court believes that an incomplete list, with interpret used as negotiations regarding the terms contained either of those circumstances applies to a placeholder for different verbs, interpret in those drafts shall be admissible in any the contract language at issue in a dispute, and construe being the most common: court to vary or interpret the terms of this the court might be disinclined to reach • the court may interpret Agreement. a different interpretation based on an • the court will/shall have the right to across-the-board gloss on including that • the court will/shall be entitled to interpret drafters apply by rote. • the court will/shall be allowed to interpret The principle of ejusdem generis shall not Another problem with relying on an • the court will/shall have the power to be used to limit the scope of the category of internal rule of interpretation that includ- interpret things illustrated by the items mentioned in ing means including but not limited to is that a clause introduced by the word “including.” it’s an awkward fix for the potential confu- That drafters have so many different ways sion that results from following a general of saying the same thing is due to the A range of verb structures aim to say word with a list of obvious examples. By chaotic state of verb structures in tradi- that a court must do something: saying fruit, including oranges, lemons, and tional contract drafting.31 • the court shall construe grapefruit, you invite a court to conclude Here’s an example that uses one of • the court will be required to construe that fruit consists of only citrus fruit, and these structures: • X is to be construed not apples or bananas. Eliminating such • X shall be construed lists shouldn’t pose a problem — everyone The courts shall be entitled to modify knows that oranges, lemons, and grape- the duration and scope of any restriction That list, too, is incomplete. Here’s an fruit are fruit. (This recommendation is contained herein to the extent such restric- example of a different structure used to consistent with our advice for not falling tion would otherwise be unenforceable, say that a court must act a certain way: afoul of ejusdem generis.)30 and such restriction as modified shall be Instead, drafters should use includes or enforceable. The Service Provider agrees that in the event including only to make it clear that the of such violation Kelso will, in addition to any general class in fact includes something other rights and remedies, be entitled to equi- JUDICATURE 37

table relief by way of temporary or permanent Drafters can aim for the same result particularly in a dispute between the injunction and to such other remedy as any without appearing to boss the court sophisticated parties. court of competent jurisdiction may deem around. For example, instead of saying One could argue that if a company just and proper. in a severability provision that a court isn’t penalized for inaccurately character- must interpret the contract in a certain izing in a contract its relationship with Upon encountering this sort of provision, way if it holds that part of the contract a contractor, then the company might a judge is likely to think, “Says who!” is unenforceable, you could introduce the as well retain the inaccurate statement, Contract parties have no basis for telling severability provision as follows: particularly if it leaves the consultant a court how to act, and a court might well The parties acknowledge that in a thinking that the consultant is unques- ignore or explicitly reject anything that dispute between the parties arising out tionably an independent contractor. But suggests as much. A 2016 case before the of this agreement or the subject matter as a general matter, it’s best for contracts Delaware Court of Chancery33 provides of this agreement, they would want the to reflect reality, so the parties understand an example of a court doing just that. A court to interpret this agreement as what they’re getting into. In particular, party to a contract sought a preliminary follows: companies so routinely mischaracterize injunction, basing its claim in part on the employees that there’s a benefit to using following provision: This approach has the benefit of putting contract language to signal to all The parties hereto agree that any party the focus on the parties, not on the court. concerned that simply declaring that a by whom this Agreement is enforceable consultant is an independent contractor shall be entitled to specific performance STATING THAT A GIVEN STANDARD APPLIES doesn’t make it so. in addition to any other appropriate A contract might state that a particular This approach could conceivably be relief or remedy. Such party may . . . legal standard applies. We consider three applied in other contexts. For example, apply to a court of competent jurisdic- examples. a court might decide that the choice of tion for . . . injunctive or such other relief governing law in a contract is unenforce- as such court may deem just and proper Stating That a Consultant Is an Independent able.35 Drafters could acknowledge as in order to enforce this Agreement or Contractor much by having governing-law provi- prevent any violation hereof and, to the Consulting agreements typically state sions state that the parties intend that the extent permitted by applicable law, each that the consultant is an independent agreement is governed by the law in ques- party waives any objection to the impo- contractor. But saying that doesn’t make tion. But it would seem pedantic to insist sition of such relief. it so. If a consultant’s status as an inde- on that — it’s not often that courts decline pendent contractor were challenged by, to enforce the governing-law provision in This in effect requires that a court for example, a government agency that a contract. But if the alternative outcomes grant specific performance. The Delaware thinks it’s owed payroll taxes, a court are more subtle than whether a provision Court of Chancery denied the motion for might well ignore what the contract says is enforceable or unenforceable, or if the summary judgment, offering the follow- and determine whether the consultant risk of an alternative outcome is signifi- ing explanation: was an independent contractor based on cant, it makes more sense to acknowledge Parties, however, cannot in advance the nature of the relationship after the the role of courts. agree to assure themselves (and thereby contract was signed. impair the Court’s exercise of its well-es- A contract would reflect more accur- Stating That a Power of Attorney Is Coupled tablished discretionary role in the ately the relationship between a com- with an Interest context of assessing the reasonableness pany and a consultant if it were to say A power of attorney — which is a kind of of interim injunctive relief) the benefit that the parties intend that the consul- contract — might use the phrase coupled of expedited judicial review through the tant will be an independent contractor. with an interest to describe the nature of use of a simple contractual stipulation And such a statement would serve a the power. It’s likely that many drafters that a breach of that contract would purpose — in a close case, a court might who use this phrase don’t know what it constitute irreparable harm.34 find relevant what the parties had means, having copied it unthinkingly intended at the outset of the relationship, from a form or precedent. 4

Upon encountering this sort of provision, a judge is likely to think, “Says who!” 38 VOL. 101 NO. 3

The phrase coupled with an interest means 2-316(2) of the Uniform Commercial • Like judicial rules of interpretation, that the power of attorney is not revoca- Code (UCC) states that a disclaimer of the internal rules of interpretation are ble by act or death of the principal before implied warranty of merchantability must arbitrary, so a court is likely to ignore the interest expires. But for a power to be be “conspicuous.” Section 1-201(10) of an internal rule of interpretation irrevocable because it’s coupled with an the UCC says that “conspicuous” means if the context suggests a meaning interest, the interest must be in the subject “so written, displayed, or presented that different from one arrived by apply- matter of the power and not in proceeds a reasonable person against which it is ing the internal rule. arising from exercise of the power. In many to operate ought to have noticed it,” and • Telling a court how to act doesn’t powers of attorney, the drafter might well it includes examples of the attributes of make sense, because contract parties have given no thought as to whether the conspicuous terms. Because this is a vague have no power to determine how agent had an interest in the subject matter. standard, fights over what constitutes a court handles a particular issue. In other words, use of the phrase might be conspicuous text have given rise to caselaw Instead, drafters should have the inconsistent with the facts.36 on the subject.38 parties acknowledge that a particular Recognizing this, courts don’t take the The lack of specific guidelines has outcome is appropriate or that they phrase coupled with an interest at face value. resulted in drafters trying to establish would want the court to interpret the Instead, they determine whether a power by contract that certain text is in fact contract in a specified way. is irrevocable by looking at the parties’ conspicuous: • If a contract provision stating that a entire agreement and the circumstances of given legal standard applies doesn’t their relationship. OPCO AND FINANCECO ACKNOWLEDGE match the facts, a court might The best way to ensure that the phrase THAT THIS STATEMENT CONSTITUTES well hold that the provision is is used in a way that makes sense would be CONSPICUOUS NOTICE. unenforceable. to explain in the contract what the phrase means and what the parties hope to achieve. Such statements might appear unobjec- But relying on these general observa- Here’s how we would accomplish that: tionable — if a party subject to a contract tions is less helpful than being alert to the [The principal] acknowledges that provision acknowledges that it’s conspic- ways that drafters seek to preempt court this power of attorney is coupled with uous, that might reassure a court that the discretion and considering in a partic- an interest, because [the agent] has an party had in fact noticed that provision. ular context the best way to achieve the interest in [refer to the subject of the But invariably such acknowledgments desired goal. u power]. It follows that in addition to are found in the provision at issue. If that any other consequences under law, this provision is in fact inconspicuous, the power is irrevocable and will survive acknowledgement would be inconspicuous J. TRAVIS LASTER [the principal’s] death or incompetence. too. So as a matter of logic, the acknowl- is a vice chancellor edgement would be of value only if the of the Court of This formulation violates a basic rule provision is conspicuous. That defeats the Chancery of the of contract drafting, in that it says the purpose of the acknowledgment. State of Delaware. same thing twice37 — first using a term of art, then more simply. But it’s the least CONCLUSION bad alternative. Because the term of art This brief exploration of how contracts seek KENNETH A. coupled with an interest is so entrenched, to preempt judicial discretion suggests ADAMS is president many would likely find disconcerting use the following general observations: of Adams Contracts of just the simpler version. • A court might be less likely to accept Consulting LLC and a statement that a judicial rule of author of A Manual of Stating That Text Is Conspicuous interpretation doesn’t apply if that Style for Contract Draft- Some statutes say that certain statements statement could be seen as interfering ing (4th ed. 2017). must be “conspicuous.” For example, section with the natural reading of a contract.

1 See Negotiating and Drafting Contract provision limiting the time for bringing an action 5 Antonin Scalia & Bryan A. Garner, Reading Boilerplate § 6.02 (Tina L. Stark ed. 2003) [here- thereon is valid if the stipulated period of time is Law: The Interpretation of Legal Texts inafter Stark]. reasonable”). (2012). 2 See B.H. Glenn, Annotation, Validity of Contractual 3 See Black’s Law Dictionary (10th ed. 2014) 6 Joseph Kimble, The Doctrine of the Last Antecedent, the Time Period, Shorter than Statute of Limitations, (defining canon of construction as “A rule used in Example in Barnhart, Why Both Are Weak, and How for Bringing Action, 6 A.L.R.3d 1197 (originally construing legal instruments, esp. contracts and Textualism Postures, 16 Scribes J. Legal Writing published in 1966) (noting “the general rule that statutes; a rule that guides the interpreter of a text”). 5 (2015); Kenneth A. Adams, Bamboozled by a in the absence of a controlling statute a contract 4 Id. Comma: The Second Circuit’s Misdiagnosis of Ambiguity JUDICATURE 39

in American International Group, Inc. v. Bank of 14 Joseph Kimble, Ejusdem Generis: What Is It Good 1198, 1200 (N.H. 2006), Holy Angels Academy America Corp., 16 Scribes J. Legal Writing 45 For?, 100 Judicature, Summer 2016, at 48. v. Hartford Ins. Group, 127 Misc. 2d 1024, 487 (2015) (discussing the judicial rule of interpretation 15 See id. at 50. N.Y.S.2d 1005 (Sup. Ct. 1985); Horse Cave State — a variant of the rule of the last antecedent — that Bank v. Nolin Production Credit Ass’n, 672 S.W.2d 66 16 whether a closing modifier is preceded by a comma See id. at 55. (Ky. Ct. App. 1984). 17 Stark, note 1, at 599. determines what that modifier applies to). supra 29 Garner, supra note 26, at 439–40. 7 18 Scalia & Garner, note 5, at 221. See Scalia & Garner, supra note 5, at xi–xvi. supra 30 See supra text accompanying note 16. 8 19 ., 842 Black’s Law Dictionary (10th ed. 2014). Infrassure, Ltd. v. First Mut. Transp. Assurance Co 31 See Kenneth A. Adams, A Manual of Style for 9 Restatement (Second) of Contracts § 206 F.3d 174 (2d Cir. 2016). Contract Drafting ch. 3 (4th ed. 2017). 20 at 176. (1981). Id. 32 See supra text accompany note 14. 10 21 See Senior Hous. Capital, LLC v. SHP Senior Hous. Fund, Id. 33 AM Gen. Holdings LLC v. Renco Grp., Inc., No. CV LLC, No. CIV.A. 4586-CS, 2013 WL 1955012, at 22 Bryan A. Garner (@BryanAGarner), Twitter (Aug. 7639-VCN, 2015 WL 9487922, at *3 (Del. Ch. *26 (Del. Ch. May 13, 2013) (“The doctrine of the 20, 2015), https://twitter.com/bryanagarner/status/ Dec. 29, 2015), reargument denied sub nom. AM construction of a contract against the drafter would 634425867372879872 (“Every contract should Gen. Holdings LLC v. The Renco Grp., Inc., No. CV typically preclude the interpretation that CalPERS define ‘including’ as meaning ‘including but not 7639-VCN, 2016 WL 787929 (Del. Ch. Feb. 19, now adopts. . . . But, CalPERS’ form drafters were limited to.’ Then never use longer phr.”). 2016). canny, and the LLC Agreement contains a provi- 23 Bryan A. Garner, LawProse Lesson #226: 34 sion waiving ‘any rule of law . . . that would require Id. “including but not limited to”, LawProse Blog interpretation of any ambiguities in this Agreement 35 Stark, supra note 1, at 114–16. (Sept. 2, 2015), http://www.lawprose.org/ against the party that has drafted it.’”). 36 lawprose-lesson-226-including-but-not-limited-to/. See Adams, supra note 31, ¶¶ 13.199–.209. 11 See, e.g., Zimmerman v. Crothall, 62 A.3d 676, 698 37 24 Scalia & Garner, supra note 5, at 132. See id. ¶ 1.62. (Del. Ch. 2013) (stating that contra proferentem “is 38 25 See, e.g., American General Finance, Inc. v. Bassett less likely to be appropriate where knowledgeable Id. (In re Bassett), 285 F.3d 882, 887 (9th Cir. 2002) and experienced parties to a contract engaged in a 26 Bryan A. Garner, Garner’s Dictionary of (using the Uniform Commercial Code’s definition series of negotiations”). Legal Usage 439–40 (3d ed. 2011). of “conspicuous” to construe a Bankruptcy Code 12 Scalia & Garner, supra note 5, at 199. 27 Garner, supra note 23. requirement that a contract contain a “clear and 13 Id. 28 See Shelby County State Bank v. Van Diest Supply Co., conspicuous” statement). 303 F.3d 832 (7th Cir. 2002); In re Clark, 910 A.2d

4 40 VOL. 101 NO. 3 JUDICATURE 41

[ an imagined conversation ]

whether, when, and what to write Federal Judges and Opinion Writing

BY D. BROCK HORNBY*

This is the third in a series of imagined conversations about federal courts among friends who once were law school classmates and now are well along in their legal careers.

[ the cast ]

Federal courts law professor LANG FELL Federal circuit judge COAR DAPPEL Federal district judge NIELSEN PRIUS Federal bankruptcy judge CHIP TERLEVEN Federal magistrate judge MADGE STRAIT Federal trial lawyer TALAGUD STOREY Federal practitioner LINDA GATE Transactional lawyer WARD SMITH Smith’s law firm’s new associate BELLA BILOWR General counsel MANNY G. RISK

[ the scene ]

This third conversation occurs at lunchtime in the chambers of United States Circuit Judge Coar Dappel. All but Dappel are seated around a conference table. Judge Dappel, having just heard oral argument, enters chambers from the corridor, doffs her black robe, and hangs it in a closet.

. . . 4 . 42 VOL. 101 NO. 3

COAR DAPPEL: Welcome. Our first in reaching their decisions; to tell the editors. Circuit judges didn’t even have two conversations didn’t solve anything, parties and their lawyers in that particu- law clerks until 1930. Now, circuit judges but I certainly learned a lot about the lar dispute the outcome and the reasoning can hire five staff people, and a number dynamics of federal trials, dispute reso- (although that could be done orally in the of us fill most or all of the positions with lution, and judges going public. I hope courtroom); and to announce the law to law clerks. Let’s face it: Case volumes have today’s conversation about opinion writ- other judges, the bar, law professors, and become so high and federal case complex- ing will be equally engaging. Just like the interested citizenry. ity so intense that unless we are polymaths our first two conversations, we’ll discuss like Judge Posner, we have to rely on law the federal trial courts and circuit courts, WARD SMITH: Well, if the written clerks for much of the writing. not the Supreme Court. As the only decision-making process is so import- appellate judge among us, I know I will ant, that suggests judges should have the FELL: And Manny, the assertion that be challenged! primary role in drafting. Bella, you clerked writing disciplines how outcomes are for a circuit judge before you joined our reached is hardly free from controversy. LANG FELL: Alright then, Coar, here’s law firm. Did your circuit judge write all Llewellyn was skeptical over 50 years ago. the most basic question of all. Why do her own opinions? Cognitive research and empirical data cast circuit judges write opinions? It wasn’t serious doubt on whether the reasons a the custom in England when our federal BELLA BILOWR: I don’t want to person gives for a decision are what really judicial system got underway. reveal confidential workings of cham- generated the outcome or that we can bers practices, so I’ll speak in generalities even know. What judges or academics call DAPPEL: Written opinions aren’t based on the writings of circuit judges like reasoning that explains a decision, psychol- required by the Constitution, statute, Beverly Martin, Richard Posner, Patricia ogists call “motivated reasoning.” Instead, or rules, but they have become a well- Wald, and the late Frank Coffin. In many in my view, it is the need to explain the entrenched tradition. A single opinion for chambers, once the tentative decision has law and justify the outcome that demands a panel of circuit judges helps build the been reached at the judges’ conference written opinions. Professor Schauer has stature of the court as an institution. To after oral argument, law clerks do the said that the written opinion has the “task be sure that everyone on the panel agrees initial drafting and the judges exercise of guiding — the setting forth of standards with what’s said, that opinion pretty much more of an editorial function. to help those who are expected to follow has to be in writing. Three other reasons the law.” The late Justice Antonin Scalia conventionally are given: to impose an MANNY G. RISK: Look, if it’s the writ- told his co-author Bryan Garner, “[I]f you intellectual discipline on the judges ing that disciplines the decision-maker, haven’t made clear what your holding is, then judges should be writing their instead of reducing litigation, instead of own decisions. We all know that edit- making life simpler for courts and lawyers *AUTHOR’S NOTE: Since federal ing doesn’t impose the same discipline below you, you’ve complicated it.” judges sometimes don’t read law on analysis as writing does. That leads reviews or academic literature, I have me to a more general complaint about SMITH: I agree wholeheartedly with chosen this casual, footnote-free, all opinions, trial and appellate. They those statements. As a transactional format — the third in a series — often demonstrate a limited appreciation lawyer, I often don’t care how appellate to canvass a variety of views on a of how the real world works, and little judges determine which side should win. topic that pertains to us all. I hope understanding of the practical effects of I understand the Legal Realists’ angst and busy judges can browse through the the rules or precepts they lay down. They cognitive studies’ interest in this topic, piece without excessive effort and be appear to be written by people without and appellate lawyers who want to win provoked to think more consciously practical experience. And they belabor the their case may care, but it’s frequently about their opinion-writing habits. obvious. I think judges rely too heavily on not relevant to me. What matters to me The words are mine, but the ideas are law clerks for opinion drafting. is the justification for the decision. Most not. They come from a broad litera- disputes don’t go to court; we lawyers ture on appellate opinions (there is DAPPEL: Manny, you’re not alone in use the opinion’s explanations and justi- much less on trial court opinions) and your criticism. Judge Posner has lodged fications to deduce the rules that govern conversations with colleagues and the same complaint. He distinguishes us and avoid court. Clarity of the rules is lawyers over the years. On bankruptcy the “writer” model of appellate judging, where circuit judges should focus their opinions, I have benefited from the which he endorses, from the “manager” energies, and I agree with Manny that, particular insights of United States model. Some believe it was the great case although it may be unrealistic, we’d all be Bankruptcy Judges James Haines (ret.) explosion during the 1980s that led to better off if judges did more of that writ- and Jeffery Hopkins. appellate judges becoming managers and ing rather than law clerks. JUDICATURE 43

FELL: Let’s move on. What should a LINDA GATE: And save us from the written circuit opinion cover? Written opinions multipart tests. Those tests cost time and aren’t required money because in future cases the lawyers DAPPEL: Books and manuals have and trial judges must address each factor, been written on that topic, Lang. First, by the Constitution, yet they seldom contribute to a predict- the contents depend upon the type of statute, or rules, able outcome. decision. Generally there are three types: summary orders; memorandum opin- but they have STOREY: Why are so many circuit ions; and full-dress opinions. In the days opinions long and verbose? of print, only full-dress opinions were become a well- published in the West Reports, and there entrenched DAPPEL: Lawyers have been complain- was academic and judicial debate about ing about opinion length for well over what opinions should be published. tradition. A single 100 years, Talagud. The truth is, we Circuits typically had local rules severely opinion for a panel federal judges deal with very complex limiting the weight of an “unpublished” statutes and regulations. Sometimes opinion or even prohibiting its citation.“ of circuit judges length is unavoidable. For a time, judges — famously the late helps build the Judge Richard Arnold and Judge Alex FELL: Sometimes, Coar. But as a regular Kozinski — debated the legitimacy stature of the court reader of circuit opinions, I think length of limiting the precedential impact of also comes from unnecessary boilerplate a case. Now all decisions are available as an institution. about standards of review, standards for digitally, and the Appellate Rules allow To be sure that summary judgment, treatment of a jury all decisions to be cited. The nomencla- verdict — things you repeat in every case. ture of “published” and “unpublished” everyone on the Plus circuit judges could greatly abbre- remains, but the controversy seems to viate some of their analysis; it looks like have diminished. panel agrees with the efforts of a young law clerk for whom But back to the three types of opinions. what’s said, that every issue, no matter how straight- Little need be said about summary orders. forward, is a “federal case.” If you were They summarily grant or deny procedural opinion pretty writing the opinions yourselves, I’ll bet motions or dismiss an appeal for failure much has to be in you wouldn’t even address some of those to do something. Memorandum opinions issues. You need to do more ruthless edit- should explain succinctly to the parties and writing.” ing of what your law clerks draft. Judge their lawyers, already knowledgeable about Posner said recently: “The cost of lawyer the case, why the court reached the decision time caused by the excessive length and it did. For full-dress opinions, the manuals people would be skeptical that it even unnecessary complexity of judicial opin- recommend a brief introduction describing charts accurately how that judge reached ions is a social waste.” the holding; a statement of facts and proce- her decision. There’s a literature that dural history; and then analysis of the legal discusses and distinguishes the “search DAPPEL: By the way, Chip, it occurs to issues. The FJC’s Judicial Writing Manual and discovery” portion of the process— me that as a bankruptcy judge you sit on says that “the writing should reflect only where a judge looks for input and decides a bankruptcy appellate panel from time to the final decision and the reasons for it. what the outcome should be — from the time. Please speak up when you disagree If the decision is a close one, the opinion “rationalization” portion of the process with my appellate perspective. should say so, but it should not record where she justifies the decision. And even every step and misstep the writer took that distinction’s controversial, subject to CHIP TERLEVEN: Well, the bank- along the way.” Circuit judges differ on ongoing learning in cognitive studies. ruptcy appellate panels are somewhat this point, however. I recall one judge different. As Bankruptcy Judge Jeffery who described the difficulty of the deci- TALAGUD STOREY: I like an opin- Hopkins has reminded me, BAP judges sion so graphically that you could not tell ion that tells me in the first paragraph are in a sense volunteers — they have until the last line how she would come what it’s about, and therefore whether I full caseloads as trial judges and do their out. That type of opinion has limited should bother reading it. I don’t read judi- appellate work in addition. And the vast utility as a guide to trial lawyers or trans- cial opinions for pleasure, and I want to majority of the BAP cases arise under actional lawyers for future cases. And as read no more than I need to. Chapters 7, 13, and occasionally Chapter Lang mentioned, the cognitive studies 12, involving consumers, family farms, 4 44 VOL. 101 NO. 3

and fishermen. As he says, “[e]conomy people simply do not read judicial opin- to disagree with that assertion. In fact, it’s of words and speedy resolutions of those ions.” And that’s okay. Maybe the actual critical for appellate opinions to focus first appeals are the hallmark.” But sometimes text of some Supreme Court opinions on persuasion. I have to persuade the other BAP judges do confront issues of first will reach a lay audience — Chief Justice two members of the three-judge panel that impression or of significant precedential Warren hoped that Brown v. Board of my opinion draft has reached the proper value, and then they write for the circuit, Education would — but seldom will that conclusion; I need to persuade the entire the Supreme Court, or scholars in a fash- happen for a circuit opinion. Instead, the circuit court if the case goes en banc; I ion similar to the circuit courts. audience is the parties, judges, lawyers, need to persuade the Supreme Court if it and law professors. agrees to hear an appeal. When the issue GATE: Do you judges worry about style is the constitutionality of a municipal as you write? RISK: Lang, you’re overlooking judges ordinance that regulates demonstrations who want their opinions to be noticed. next to an abortion clinic, or the legal- DAPPEL: Many do. Some urge appellate Both Judges Benjamin Cardozo and ity of a school policy concerning access judges to write opinions of greater literary Posner have recognized that the majority to bathrooms for transgender students, quality, treating Oliver Wendell Holmes, of cases on appeal have only one possible the opinion must try to persuade the law Learned Hand, and Robert Jackson as outcome. They aren’t particularly inter- professors and media who comment. A examples. Some judges now cultivate a ested in those, but instead in what Posner technical writer’s approach just won’t do very colloquial style. Others like arcane calls “the most important and most inter- the job of persuasion. If lessons from liter- language. On the other hand, Professors esting” cases, those that Cardozo said “will ature or opinion-writing gurus will help Paul Carrington, Daniel Meador, and count for the future,” where “the creative me be more persuasive in such cases, I’m Maurice Rosenberg have pointed out that element in the judicial process finds its all for them. some judges “polish and refine the literary opportunity and power.” For judges with style at considerable cost in time and with that agenda, using lessons learned from FELL: Maybe there should be different insignificant gain for the judicial function.” literature can make their opinions more approaches for different types of opinions. readable and attract the attention those For civil rights opinions, a judge should GATE: Don’t forget the judges who use judges want in those cases. And speaking be aware that her language may be quoted opinions for their own brand of humor, or of what “counts,” some academics measure in the media. But for business or patent- to apply an extended metaphor or pun, or judges’ quality by how often their opin- type decisions, clear rules may be the most to chastise lawyers and parties. I think those ions are cited. Judge Posner does very well important focus. types of appellate opinions are self-indul- on that metric. gent, not good tools for trial judges, trial DAPPEL: Good point. I’ll alert my law lawyers, or transactional lawyers. STOREY: I think treating the opinion clerks. as a literary product is a conceit that drives DAPPEL: Perhaps. But writing opinions appellate judges astray. I don’t go home in RISK AND SMITH: [groaning in day after day can become tedious, Linda. the evening saying, “I’ll read a few judicial unison] Not your law clerks, Coar, you! We’re human and sometimes need a little opinions tonight instead of a good book, levity. In some instances our frustration and I hope their opening lines or zingers RISK: I endorse attorney Jonathan with lawyer behavior boils over. But I agree will draw me in.” As far as I’m concerned, Mermin’s arguments in favor of stream- we should try to avoid that style. judicial opinions are merely tools for lining opinions. He disagrees with Judge understanding what the legal rules are Posner’s request to get rid of headings and FELL: Some modern handbooks and and predicting how they’ll be applied in subheadings, pointing out that lawyers advocates of opinion writing urge judges another situation. Appellate judges would generally don’t read judicial opinions in to increase audience interest by following be better seeing themselves as technical their entirety, but instead look for rele- popular marketing or media techniques writers, like those who write instructions vant segments with the help of headings such as “teaser openers,” “trailer open- on how to assemble a piece of equipment. and subheadings. Mermin says, “A judi- ers,” or “zingers.” Zingers make me think They should write simple explanations that cial opinion without headings is like a of presidential tweets! But a couple of are accurate and convey the information newspaper without headlines: You can decades ago Professor Frederick Schauer effectively to the intended audience. Forget still find what you’re looking for, but you pointed out that we’re not surprised when the teasers, trailers, and zingers. spend more time searching for it.” statutes or regulations are uninteresting, complex, or inaccessible to nonspecialists, DAPPEL: I was silent earlier when GATE: Mermin also argued that the and we shouldn’t hold judicial opinions to Ward said clarity of the rules for future “context-free recitation of facts” at the literary standards. He said that “ordinary cases should be our only focus, but I have outset of an opinion is less than helpful, JUDICATURE 45

and that most lawyers jump over that rulings were delivered primarily to the section and proceed straight to the anal- Maybe there should parties and their lawyers, usually orally ysis section where generally the material be different in open court, structured in the same way facts are repeated anyway. I confess that’s the lawyers structured their arguments. what I do. Moreover, as Judge Kozinski approaches for said, “including inconsequential facts can different types FELL: Interesting, Nielsen. Along those provide a spurious basis for distinguishing lines, linguistic anthropologist Susan the case in the future.” of opinions. Philips studied the actual speech of state For civil rights trial judges in taking guilty pleas, looking NIELSEN PRIUS: Linda, that may at variations in their spoken courtroom be a good point for appellate opinions, opinions, a judge language, and discovered what she thinks but in the trial court we have to find the were ideological differences. She thought facts first, from “the raw source material” should be aware it was more important to focus on what as Professor Jeffrey Van Detta has said, that her language trial judges actually said in open court before we can go on to assess and apply than what she called the “written resi- the law. It’s important that we give“ a may be quoted dues of actual behavior.” And Circuit full presentation of the facts, because the Judge Beverly Martin, formerly a district circuit court may disagree with what we in the media. judge, has written about the impact of the think’s important or unimportant. But for business federal trial judge speaking “in the courtroom as a representative of the courts and STOREY: I agree with Mermin’s other or patent-type our government.” criticism that repeating the parties’ argu- decisions, clear ments in an opinion — a style that goes GATE: Judge Wald has applauded the back at least a couple hundred years to when rules may be the practice of some trial judges saying “I” written briefs were the exception, regular rather than “the court” when giving reporting of opinions was in its infancy, and most important their opinions. She thinks it humanizes the advocates’ view of the law was almost as focus.” the process. I do find there’s something important as the judges’ — is a waste. Now archaic and mystifying to the parties in that I can find the briefs and sometimes oral the courtroom when the individual trial arguments online, I don’t need the lawyers’ “Good point. I’ll judge says “the court has decided,” almost arguments repeated in the court’s opinion. as if someone other than the speaking What I want is the court’s reasoning that alert my law judge decided. justifies its decision and articulates how it clerks.” will affect future cases. PRIUS: I disagree. I want to emphasize the institution, not the person under the RISK: Nielsen, I notice that district robes, and so I say “the court.” But I do judges have been writing far more opin- the record after the close of the evidence,” agree that for trial judges, what we say ions in recent years than when you first and the Advisory Committee Note said in open court is crucial. It’s still the case took the bench. Why is that? that it “should reduce the number of that most of the decisions we trial judges published district court opinions that make in the course of a day in court are PRIUS: Probably several reasons, Manny. embrace written findings.” Would that it oral and not in writing unless someone I’m aware of only one explicit require- were so! But the academics, rules draft- orders a transcript — for example, accept- ment for writing — a departure provision ers, and circuit courts demand explicit ing a guilty plea; sentencing; ruling on of the Sentencing Guidelines — although reasoning from us trial judges in compli- juror challenges at voir dire; admitting or on occasion a local rule will add a writ- cated matters such as class certification, excluding evidence; appointing a lawyer. ing requirement, as the Northern District patent construction, and summary judg- But as the number of trials has declined of California has done for habeas corpus ment issues like qualified immunity and and the number of complex motions has cases. Actually, the Rules of Civil and employment discrimination, which many grown, there’s both more demand for and Criminal Procedure go out of their way of us finding safer to do in writing. This more time for trial judges to write opin- to permit oral rulings from the bench. A trend has changed the dynamic of being a ions that would’ve been bench rulings 20 1983 amendment to Rule 52 on bench trial judge. We used to spend most of our years ago. We’ve also been criticized for trials explicitly permits findings of fact time in trials and sentencings, our writ- not writing enough opinions — notably and conclusions of law to be “stated on ings were short and less frequent, and our by former District Judge Nancy Gertner 4 46 VOL. 101 NO. 3

— for not writing enough sentencing those factors that are easier to verbal- opinions to develop the law of sentenc- . . . We trial judges ize — what psychologists call “verbal ing, and for not writing enough opinions should go back overshadowing” — at the expense of inar- when we deny summary judgment. She ticulable, context-based judgments. says that skews the development of the to more bench law in areas like employment discrimina- rulings when PRIUS: I experience that tension when tion because we give all the reasons why I go through the list of section 3553(a) summary judgment should be granted, there is no novel statutory sentencing factors in trying to but do not elaborate on the reasons why explain, even orally, the sentence I impose, summary judgment should be denied. legal question, or in going through the list of factors the and save the Civil Rules Committee and the circuit say STRAIT: I don’t buy the argument I should consider in deciding whether to that there aren’t enough written decisions lawyers and our approve a class action settlement. I say or explaining the denial of summary judg- peers from all the write the words, but frankly they don’t ment. As a magistrate judge, I write a lot produce the result I reach. It’s much more of opinions explaining why summary judg“- published verbiage. an intuitive judgment. ment should be denied in employment discrimination cases because my opinions FELL: Professor Oldfather suggests that are recommended decisions and I need to courts have the final say on the law except in such contexts, appellate judges like Coar explain the reasons to the reviewing Article for those few cases — now fewer than are actually looking to review the process of III judge. In fact, we magistrate judges 100 per year — that the Supreme Court decision-making more than the substance. may be one of the reasons for the growth takes. There’s a need to ensure uniformity of written opinions at the trial court level. of the law, assess the larger consequences DAPPEL: Well, it does give us comfort The increase in the number of magistrate of the decision as precedent, and demon- that the trial judge’s decision was not judges has far outpaced that of district strate legitimacy. As I said earlier, written capricious. I hadn’t considered that it judges, and district judges delegate a lot opinions lend legitimacy to circuit courts; might be false comfort or might over- of work to us. Whenever a district judge circuit judges are virtually invisible except emphasize some factors. It also gives us refers a dispositive motion to us, we have for their writings. But the legitimacy factor something to review; we appellate judges to write. After conducting a suppression doesn’t apply to all courts — for example, are not accustomed to deciding issues in hearing in a criminal case, we write; after small claims courts certainly don’t need the first instance. hearing a motion to certify a class, we written opinions to support their legiti- write; after hearing a motion to dismiss macy, and perhaps even federal trial courts FELL: Talagud, how do you as a trial an indictment or to dismiss a civil case for don’t either. Trial courts derive their legit- lawyer feel about the growing volume of lack of personal or subject matter jurisdic- imacy from trials, sentencings, and other trial court opinions? tion, we write. If the district judge had the events in open court. time to hear the motion to suppress, he But Nielsen, Madge, and Chip, I find STOREY: I’m torn, Lang. On the one or she could rule from the bench, and on that when you trial judges do provide a hand, I’m overwhelmed by the torrent of a summary judgment motion the district written decision, it gives me important words pouring out of our courts on every judge could deny it virtually without opin- information as to why you reached that imaginable issue, opinions usually verbose ion. We’re also writing more opinions in decision and helps us circuit judges decide and redundant of what’s already been said. general because the complexity of e-discov- whether your decision should be affirmed. Even Sir Francis Bacon and Lord Edward ery and the new rules require explication Coke warned against reporting too many that the lawyers can understand and apply, FELL: Coar, you might want to think decisions. On the other hand, I and my and discovery disputes seldom reach an twice before you reflexively urge trial associates love to find a decision on point appellate court for a ruling. And a statute judges to provide more written expla- for whatever proposition we’re advancing, requires us to issue a written explana- nations. There’s some suggestion in and if there’s no appellate decision, we’re tory order whenever we release or detain a cognitive research that written explana- happy to cite a trial court decision. Plus, defendant pretrial. tions can distort decisions that should be if I’m the lawyer in the case, I like to be discretionary or should depend on eval- able to show my client a written opinion; DAPPEL: Nevertheless, I think the argu- uating a number of factors, the kinds it helps justify my fees. ment for written opinions is stronger in of things that trial judges often do. the case of circuit judges than trial judges According to Professor Chad Oldfather, FELL: What about you, Ward, as a because, in the federal system, the circuit the process of writing can over-emphasize transactional lawyer? JUDICATURE 47

SMITH: I share Talagud’s diffidence for not believe the greatest district judges to there, and the whole notion of what is a slightly different reasons. I like circuit be those who stew for months and then “published” opinion in the trial court has court and state supreme court opinions write a long opinion on a novel point of law changed. That’s another reason why we — if they’re not too long — because concerning which they are almost certain trial judges should go back to more bench they’re generally authoritative. It may not to have the last word.” I learned it was rulings when there is no novel legal ques- be risky to advise my clients to base for circuit judges to make the law, and for tion, and save the lawyers and our peers their conduct on trial court opinions, on us district judges to apply it. I think that from all the published verbiage. the other hand, because they can be so now more attention is given to teaching easily overturned. Traditionally the trial trial judges how to write. Computers have STRAIT: But often there’s no clear law court was concerned primarily with fact- made it easier than when judges dictated or on an issue, and even a trial court opinion finding, not developing the law and creat- wrote longhand. There are some occasions can be useful then, Nielsen. ing precedent. I guess I don’t see the reason where complexity compels us to write, but for all the written opinions at the federal I think we’re writing too often. And the DAPPEL: Do you trial judges use law trial court level. I don’t see Nielsen’s state less a judge rules from the bench, the more clerks in writing your opinions the same trial judge colleagues writing as many insecure she becomes in doing so. However, way we circuit judges do? opinions as federal district judges do. some, like District Judge Mark Bennett, believe that a written opinion shows the PRIUS: There are a lot of similarities. FELL: Nielsen, what about that? losing party that the judge considered seri- We can hire three staff people, and some ously every argument the party made and judges no longer engage a judicial assis- PRIUS: As far back as 1964, the Judicial therefore provides legitimacy. Chief Justice tant, making all three law-trained. My Conference recognized that the number John Marshall said in 1835: “Though the own personal goal is to do a rough first of published opinions at both district and hope of deciding causes to the mutual satis- draft for every opinion because I can circuit levels was “rapidly growing,” and faction of parties would be chimerical, that then structure the opinion, focusing on adopted a policy that both district and of convincing them that the case has been only the important issues. Many of my circuit judges should publish “only those fully and fairly considered, that due atten- colleagues let their law clerks write the opinions which are of general preceden- tion has been given to the arguments of first draft. With the decline of trials, law tial value and that opinions authorized counsel, and that the best judgment of the clerks have more time available outside to be published be succinct.” Part of court has been exercised on the case, may the courtroom, and it’s tempting to keep the concern then was physical library be sometimes indulged.” But, he quickly them busy by having them write first resources, no longer an issue in this digi- added: “Even this is not always attainable.” drafts on difficult motions. Sometimes my tal age. But later, a 1977 FJC district docket is such that I have to let a law clerk court case management study developed BILOWR: Perhaps some of the appar- do it. I confess that when I’m then in the data showing that in highly productive ent increase in trial court opinions is an role of editor, I don’t do as good a job. or speedy district courts, “[r]elatively few artifact of the digital revolution. I can written opinions are prepared for publica- now find on Bloomberg, Westlaw, Lexis, TERLEVEN: We bankruptcy judges tion.” Recent data also show that busier Pacer, the district courts’ websites, or the can hire two staff people. I’m like Nielsen: courts generate fewer written opinions Government Publications Office’s FDsys I try to do my own first drafts and often than low case-volume districts. virtually every writing a district, magis- even final drafts that I issue orally from So when I went to “baby judge school,” trate, or bankruptcy judge has issued in the bench. My law clerks are well educated we were encouraged to avoid writing too a case, regardless of whether she thought but they don’t have the business acumen a many opinions and to rule from the bench it was an important ruling to publish. bankruptcy opinion often needs, and they while the case or issue was fresh in our Maybe trial judge writings have simply generally lack litigation or transactional minds, because a trial or a multitude of become more widely available. experience. Bankruptcy is highly special- sentencings would prevent us from getting ized, and a basic bankruptcy course at back to a dispute where we’d promised PRIUS: That’s an excellent point, Bella. law school cannot really address the more a written opinion. The parties wanted Back in the day, we district judges told nuanced aspects. a prompt decision so they could move West Publishing Company what we on. The late Judge Henry Friendly said thought qualified for publication in STRAIT: As a magistrate judge, I have in 1972: “The district courts know what Federal Supplement or Federal Rules two staff people; some of my colleagues their business is — disposing of cases by Decisions. I was very stingy in what I use both positions for law clerks. Plus trial or settlement with fairness and with submitted because I didn’t want to cut some magistrate judges with a steady diet the optimum blend of prompt decision down trees to say something already said of pro se prisoner cases have access to a staff and rightness of result.” He added: “I do elsewhere. Now, everything I write is out law clerk. My law clerks do first drafts of4 48 VOL. 101 NO. 3

summary judgment and social security even use numbered findings to that end. decisions, and staff law clerks often do . . . As everything we We should leave law development to the first drafts in pro se prisoner cases. write gets published circuit courts. But recalling one of Bella’s digitally, we’ve earlier observations, I fear the digital revo- FELL: Our earlier discussion about lution has changed the audience as some content and style focused on the circuit begun to write for trial judges now perceive it, and that has courts. Ironically, while Learned Hand is changed the nature of our opinions. often held up as an example for appellate a wider audience, judges to emulate, Professor Van Detta has realizing we may GATE: How so? examined Hand’s earlier performance in have influence writing trial court opinions and found it PRIUS: The perceived audience for trial wanting. What about trial court opinions? on how the law judges used to be just the parties and What should be their content and style? the lawyers in the case, and we seldom develops if our spoke to or wrote for a larger audience. PRIUS: Well, some of what district opinions are We simply told the lawyers in open court judges do is like circuit judges — for“ how we ruled on the issues they’d raised. example, reviewing an administrative law picked up by legal But as everything we write gets published judge’s social security disability decision bloggers, the media, digitally, we‘ve begun to write for a wider or a bankruptcy court decision. I suppose audience, realizing we may have influence in those cases the same considerations or our trial court on how the law develops if our opinions apply. But in general, while appellate colleagues. are picked up by legal bloggers, the media, judges are focused on developing the law, or our trial court colleagues. I suppose in we trial judges are focused on developing that context we face the same concerns a what are often complex, if not messy, facts more on that challenge now. Cognitive circuit judge has for the content and style and then applying the law as our superiors studies have reduced our confidence in the of an opinion. have announced it. In sentencing, we find ability of judges and jurors to even evalu- facts. On motions to suppress, we find ate witnesses’ testimony. The evidence for FELL: Chip, what about you bankruptcy facts. In class-action certifications, class implicit or unconscious biases in humans judges? settlements, and motions for attorney’s seems irrefutable. Biases are not just fees, we find facts. In bench trials, we find racial, ethnic, or gender, but also consist TERLEVEN: Lang, I think the trial facts. On summary judgment motions, of confirmation bias, hindsight bias, court issues on the table affect us as we don’t find facts but we do sift them omission bias, coherence-based reason- well, with some adjustments. First, fact- carefully, deciding what facts are mate- ing, anchoring, framing, prior beliefs finding is critical in many bankruptcy rial and what facts truly are disputed. On — the list goes on. Chris Guthrie, Jeffrey decisions, both contested matters — for discovery motions, magistrate judges like Rachlinski, and Andrew Wistrich have example, estimating and valuing claims, Madge find facts; on recommended deci- done important research and writing on ruling on claims objections, preferences, sions, they recommend to the Article III these issues. We trial judges have to learn and plan confirmation — and adversary judge what facts to find. Even on motions about these hazards and try to overcome proceedings — for example, determining to dismiss, we have to focus on what are them to the extent possible. nondischargeability and fraudulent trans- the important facts plausibly alleged. fers. Because district and circuit judges Famously, Judge Jerome Frank criticized RISK: So Nielsen, are you suggesting generally aren’t bankruptcy specialists, Judge Cardozo for overlooking the impor- that when you write, you federal trial we also need to explain fully what we’re tance of fact-finding in writing “The judges of all varieties should focus your doing, and to persuade, in the event of an Nature of the Judicial Process.” opinions on facts? appeal. It can also be important to write when there’s a need to educate the local FELL: Fact-finding and sentencing PRIUS: If we write, Manny. But yes, bankruptcy bar on best procedural prac- are areas where a number of implicit or that’s exactly what I’m saying. And by tices or common pitfalls. But because unconscious biases can have a major effect, the way, the goal of judicial fact-finding time is money, and that’s what the bank- maybe even more for you trial judges than at the trial level is not to create a compel- ruptcy process is all about, we try to use for circuit judges. ling narrative with teasers, trailers, or oral rulings from the bench to avoid the zingers; instead, it is to lay out dispas- delay that writing an opinion causes. PRIUS: That’s true, and judicial educa- sionately all the facts that are pertinent to There’s also little need to write opinions, tion and academic literature are focusing the legal principles at stake. Some judges let alone lengthy ones, when the ruling is JUDICATURE 49

important only to the parties, as so many the standard of review we apply really is affect the standard by which you affirm or of our rulings are. I think we should leave important. Retired Circuit Judge Deanell reverse trial court decisions. longer opinions to Bankruptcy Appellate Tacha once said that “to the normal reader Panels and the circuit courts. Former [standard of review] is legalese. To the DAPPEL: Well, when we use those Bankruptcy Judge James Haines used to judge, it is everything.” For one reason, it terms, other factors are coming into play. I teach new bankruptcy judges saying: “I distinguishes our role as appellate judges suspect you and your trial judge colleagues write as little as I can. And when I do, from the role of trial judges like Nielsen. don’t like us to reverse you for something I write as little as I can.” A bankruptcy The Supreme Court occasionally repri- that was never brought to your attention, court decision is not the time to show how mands us for not giving enough deference Nielsen. So we say if the error was not erudite we are. to trial courts, so we’re careful to describe “plain error,” then a party forfeits it by what we’re doing. As Nielsen pointed out, not objecting. A federal procedural rule SMITH: I want to shift our attention. It trial judges and juries decide the facts; we imposes that standard in the case of jury was fascinating, Coar, to watch the argu- appellate judges do not, and so we don’t instructions, and an evidence rule uses it ment before your appellate panel a few reject their factual determinations unless for evidentiary rulings. “Harmless error” minutes ago before we assembled here they’re clearly erroneous. We actually use is the term we use when we find error but in your conference room. As a transac- that term as a standard of review. conclude it’s not bad enough to upset the tional lawyer, I almost never go to court. I trial outcome. A federal statute requires thought the appellant’s lawyer presented STOREY: Then why not just say you harmless error review in appeals. A crim- the merits of his case persuasively, but the accept the facts as the trial court found inal procedure rule defines the difference panel seemed to give him a pretty hard them? Why do you need the double nega- between plain error and harmless error in time on what you call the standards of tive, that they were “not clearly erroneous?” a criminal trial. The Supreme Court uses review, something Lang Fell mentioned the term “significant procedural error” for earlier. I assume that will play a role in DAPPEL: Custom, I suppose. And sentencing review. “Structural error” is a the eventual opinion. Why are the stan- sometimes the term comes from a Rule or constitutional error that goes to the very dards of review important? Why not just statute. And maybe in some cases to signal framework of the trial and is so fundamen- focus on whether Nielsen’s trial judge that we don’t really like the trial court’s tally unfair that we don’t bother to inquire colleague got it right or wrong? That’s findings, but we’re bound by them. whether it was harmless to the particular what I wanted to know, and I expect On the other hand, we circuit judges outcome before reversing. So we’re using that’s what the parties and the lawyers make the final decisions about what the those terms to signal to the appellate bar care about most. law is, except for the few cases the Supreme the hurdles they must surmount for certain Court hears. Since that’s our responsibility of their arguments to succeed. PRIUS: Great question, Ward. As a and binding on all the federal trial judges district judge, I try to read every opin- and lawyers in the circuit, we give no PRIUS: I guess that’s why those stan- ion the circuit writes, and I confess I get deference to what trial judges say about dards annoy the rest of us, Coar. They’re pretty tired of reading about the stan- the law. We say we review the legal issues designed for the appellate guild, the dard of review — or more likely, several “de novo,” anew. Then there are instances secret handshake. As a trial judge, I find different standards of review — at the where trial judges have to make judgment it unhelpful to read an opinion that says beginning of every opinion. It seems like calls — rules of evidence are an exam- merely that something is not plain error. so much law clerk boilerplate. ple, where the trial judge has to decide That doesn’t tell me whether it’s right or whether to exclude evidence because it’s wrong. I want to know, so as to get it right FELL: Looking at courts systemically as cumulative or unfairly prejudicial — next time. Same thing for harmless error. a law professor, I always thought appel- and in those instances we review only Of course I’m grateful not to have to do late courts had two main functions: first, for “abuse of discretion.” Sometimes that the case over, but if you say “any error to correct error; second, to clarify the law. applies to agency review as well. was harmless” without deciding whether It seems to me, Coar, that standards of it was error in the first place, the trial review don’t contribute much to either of PRIUS: Gee, I wish there were only three lawyers and I don’t know how to govern those objectives. standards, Coar, and then you probably our behavior next time around. wouldn’t have to talk about them in every DAPPEL: Well for starters, certain stat- case. But in the circuit opinions I read, I FELL: What about that, Coar? Shouldn’t utes, Rules of Procedure, and Supreme find references to obvious error, clear error, you circuit judges always decide first Court cases actually require us to use plain error, significant error, harmless error, whether there was any error at all, before particular standards of review, so the issue’s structural error — it’s like Baskin-Robbins you get to whether it was plain, clear, not solely one of our creation. Moreover, ice cream flavors. Those terms also seem to harmless, or whatever? 4 50 VOL. 101 NO. 3

DAPPEL: In a perfect world, probably PRIUS: [silence] FELL: Can’t we boil the standards we should. But circuit judges are very busy, down to just those two? Judge Wald says and sometimes it’s quicker and easier to get FELL: Pardon me for saying so, but many appellate judges have a “tendency to trans- agreement that something was harmless or of the instances where circuit judges avoid mogrify the rhetoric of review standards,” not plain error, without getting into the deciding whether something is actually and that the choice of standard “basically more difficult and significant analysis of error have nothing to do with inter-branch does the court’s work for it” without a whether it actually was error at all. relations or democratic values. I don’t see genuine analysis of the underlying issue. that these standard-of-review rules are In the administrative law context in the STOREY: Well, I’m just a trial lawyer, really guided by what’s useful for the 1970s, Professors Ernest Gellhorn and but I know that what I look for from the parties to a dispute, the trial judges who Glen O. Robinson denigrated the stan- circuit is clear guidance. I want to know will judge future disputes, or the lawyers dards as basically “liturgical” with “no what’s permitted and what’s not, and be who must conduct themselves in court more substance at the core than a seedless able to predict what the court will say the based upon these opinions. grape.” Around the same time Professor next time. No offense, but I don’t think Rosenberg said the abuse-of-discretion you should avoid the question for efficien- GATE: In fairness to Coar, I have to say it’s standard “has no meaning or idea content cy’s sake. Getting an authoritative ruling is not just circuit judges who use standards that I have ever been able to discern.” one of the reasons we have appellate courts. of review. I’ve read a lot of social security Judge Posner recently said we should disability decisions by you, Nielsen, or by “simplify — indeed largely . . . discard STRAIT: I agree with Talagud. The Madge Strait, that say you’re reviewing — the standards of appellate review” and lawyers spent their time and their clients’ the Social Security Commissioner’s deci- argued really there are only two, plenary money arguing the error issue to you, sion denying disability benefits to see if and deferential, because all but plenary and the trial judges and lawyers in future the decision is supported by substantial are practically synonymous. If there are cases would have better guidance if you evidence on the administrative record. You minor differences among the others, are determined something was either error or even use harmless error analysis. Those are the differences worth preserving? Or are correct. standards of review. we talking about how many angels can dance on the head of a pin? The two-level DAPPEL: There’s an ancient and vener- STRAIT: Linda, you’re correct that standard for review of magistrate and able tradition among American judges district courts do use standards of review bankruptcy judges seems to work pretty not to decide something unless it’s neces- on account of statutes and Supreme Court well. I’m not aware of any empirical sary in order to resolve the dispute. and circuit rulings. And we haven’t even evidence that the multitude of standards mentioned Chevron deference to agency serves a useful purpose. FELL: But circuit judges are not the decisions or the arbitrary and capricious Supreme Court, which may have insti- standard. When Nielsen reviews my GATE: I like Lang Fell’s suggestion for tutional reasons for pursuing what Alex magistrate judge decisions, he applies a simplification. But Coar, even if we can’t Bickel called the passive virtues, so as to standard of review — clearly erroneous or persuade you to consolidate and reduce avoid prematurely deciding at that level contrary to law for some, and for others, the number of standard-of-review formu- difficult issues that involve relations with he gives them de novo review. Those lations, I suggest you put them in a local the democratically elected branches. standards of review are required by the rule or standing order. Then you won’t governing statute concerning magistrate have to recount them in every opinion. DAPPEL: There are other reasons for judges’ decisions and the Federal Rules of Better yet, the Advisory Committee on our reticence to decide. Even below the Civil and Criminal Procedure. the Rules of Appellate Procedure could do Supreme Court level, judicial decisions are that for the entire country. You don’t have not democratic, and there’s good reason TERLEVEN: Two standards govern to tell us each time that you’re using the therefore to restrict judges’ influence. review of bankruptcy court decisions by correct standard. If a dissenter concludes Decisions take emotional and cognitive district or circuit courts as well — de the panel majority has applied the wrong capital. I notice trial judges often avoid novo review for facts and law in non-core standard, only then would you need to making decisions they don’t have to. proceedings; for core proceedings, clearly repeat the verbiage. Nielsen, I’ll bet you’ve avoided your share erroneous review of the facts and de novo of difficult decisions as a district judge. In review of the law. These are quite similar FELL: Classmates, we’re at the end of fact, my colleagues and I are often frustrated to the standards for district court review our allotted time, so let me try to sum up when we read a trial record to see objec- of magistrate judge decisions. this conversation. So much has changed in tions the trial judge never has ruled on. the practice of law, the nature of lawsuits, and technology, that we should not expect JUDICATURE 51

the judicial opinion to be exempt. Maybe DAPPEL: Maybe. Or maybe there will what we do for the Article III judges who after a couple of hundred years it’s time always be a certain amount of unavoid- review us. to reexamine its role and its most appro- able grumbling among lawyers, judges, priate components and structure at all and law professors. Maybe things are GATE: And I like getting all the trial levels of the federal judiciary. At the trial moving as well as can be expected, given court opinions, so that I have a case to cite level, federal judges may be writing more the work load and complexity of the issues as authority. often and at greater length than neces- we all confront. I think federal trial and sary. At all levels we could decrease the circuit courts are still well regarded here FELL: Well, I tried! And we didn’t repetition of well-established law. Judges and abroad. The kinds of opinions we even get to the role of concurrences and should approach opinion-writing with a write now come from a long tradition of dissents, or whether judges should do conscious awareness of current practices, academic-style opinion writing. It will their own internet research in writing such as how lawyers and other judges not easily be displaced. an opinion. Perhaps that’s for another actually read and use opinions; the effects conversation. u of digitization; the fact that every writ- PRIUS: I don’t think you’ll get my ten decision is available whether or not district judge colleagues to reduce the D. BROCK labeled as “unpublished” and regardless of amount of their writing; many of them HORNBY has been whether it’s from a circuit, district, bank- have come to enjoy it. And, in some cases, a federal trial judge in ruptcy, or magistrate judge; and the fact district judges have a unique perspective Maine since 1990 and that lawyers’ arguments in the cases are that deserves to be published. has presided at trials in independently available online. We should other districts within recognize that some current practices seem TERLEVEN: Ditto for bankruptcy the First Circuit. He to have developed almost unconsciously judges. has also been a federal magistrate judge, law and may no longer be appropriate. professor, state supreme court justice, and STRAIT: We magistrate judges can’t private practitioner in general practice. reduce our writings; we have to explain

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The State of the Judiciary

THESE ARE INTERESTING TIMES FOR THE JUDICIARY. TACKLING QUESTIONS OF JUDICIAL INDEPENDENCE, THE BALANCE OF POWERS, JUDICIAL SELECTION METHODS AND MORE, A PANEL OF DUKE LAW FACULTY AND ALUMNI JUDGES JOINED DEAN DAVID F. LEVI AT DUKE LAW SCHOOL RECENTLY TO DISCUSS THE STATE OF THE JUDICIARY. HERE’S WHAT THEY HAD TO SAY.

ur topic is “the state of the judiciary,” which could encompass a huge amount of territory. The topic is not self-defining. A time for OWe can look at the judiciary from many points of view — its independence, selection process, efficacy, quality, institutional support, reputation, and so forth. There are also many judiciaries, wisdom federal and state, and also local and administrative judges who are sometimes members of the executive branch of government. How should we think about the topic, and in what respects should we be concerned about the health of our judiciary, so critical to what we conceive of as the rule of law? Here we have a terrific panel of Duke faculty and alumni who are thinking about these issues every day. Each of their short discussions briefly and cogently expresses deep thoughtfulness, the result of years of study and practice. Professor Maggie Lemos discusses judicial independence and introduces us to the concepts of decisional independence and institutional independence. She then asks the provocative questions: How can we measure judicial independence, and how would we know when it is threatened? JUDICATURE 53

The State of the Judiciary

Professor H. Jefferson Powell looks at the state of the Finally, Professor Ernest Young takes us right into the heart of judiciary from the point of view of an executive branch lawyer. current controversies involving the federal courts and the some- This perspective yields rich insights into the functioning of the times harsh criticism of the courts and individual judges from the courts, particularly the United States Courts of Appeals. two political branches. He discusses three questions: Whether Judge Carolyn Kuhl offers reflections from the point of view this level of criticism of the federal courts is unusual, historically of a distinguished trial judge in California, much admired for her speaking? Is it a bad thing to have criticism of the federal courts? handling of complex civil cases. Judge Kuhl notes that judges And what is the role of judges themselves, and of the academy, in are accustomed to criticism and do not cower before it. However, creating the climate in which criticism is flourishing? in a moving plea, she discusses the institutional threat posed There is a story about an English judge who is said to have when law enforcement officials conduct arrests and dragnet-type expressed frustration at the close of an oral argument: “Counsel, operations within state courthouses. you have been going on at some great length, and I am no wiser Justice Don Willett of the Texas Supreme Court gives us now than when you began.” And in that great English tradition a lively review of the state election and selection processes for of wit and defiance, counsel replied: “No wiser, my lord, but judges, noting that the perfect system has not yet been imple- better informed, perhaps.” And so while our discussants agree it mented, let alone conceived. He also reviews the wide variation is not possible to sum up the “state of the judiciary” in a single in resources among the state courts. Our different systems are so grade or measurement, our thinking is much enriched. We are varied that it is hard to generalize about our judiciaries. both wiser and better informed. — DAVID F. LEVI, Dean and Professor of Law, Duke Law School 4 54 VOL. 101 NO. 3

he legal literature on judicial independence tends to draw a courts and into administrative tribunals, facilitating or encour- distinction between two kinds of judicial independence. One aging private arbitration as an alternative to litigation in court, T is decisional independence, and the other is institutional.1 changing court procedures so that it’s difficult for certain types of Another way of describing this distinction is to think about the claimants to make use of the courts, failing to nominate judges so difference between the independence of an individual judge and that the courts don’t have the people they need to do their jobs, the independence of the judiciary as a whole. When most people being stingy with budgets, or half-hearted enforcement of judi- talk about judicial independence they mean the first kind — the cial orders. Those kinds of measures tend to fly below the radar, decisional independence kind. And they mean something like the and any one on its own might not seem like a critical threat to idea that judges should be able to decide cases impartially, “with- the independence of the judiciary. It’s only by looking at the out fear or favor”2 based on the particular facts presented in the combined effect that one might start to get worried. case and the judge’s own best understanding of the law. But that then brings me to the last question that I want to flag, Justice Sandra Day O’Connor had this to say about judicial which is probably the hardest one: How would we know if we independence recently, referring to decisional independence: should be worried? How can we measure judicial independence (of “Judicial independence either variety), or identify actions that could be real threats? is the vital mechanism There are a number of different approaches to this last ques- that empowers judges tion in the literature on judicial independence, none entirely A time for to make decisions that satisfactory. One approach, which is common in comparative may be unpopular but assessments of judicial independence across nations, is just not less correct. In so to focus on formal structural rules that govern the interaction concern? doing, the judiciary between the judiciary and the political branches. If we took that vindicates the princi- approach within the United States, we’d look at constitutional ple that no person or provisions and probably would conclude that federal judges are group, however powerful, is above the law, and it gives life to quite independent, at least in the sense of decisional indepen- the promise that the rule of law safeguards the minority from the dence, given the protections that I mentioned earlier. We might tyranny of the majority.”3 For most observers, this kind of inde- worry a lot about state judges, most of whom are elected and, pendence is indispensable in a constitutional democracy. At the maybe more importantly, almost all of whom face some sort of federal level, of course, it’s secured by constitutional provisions retention moment, whether it’s reconfirmation by the governor that give Article III judges life tenure during good behavior, and or legislature, or reelection or retention election. If we were just a guaranteed salary. looking at formal provisions, we might conclude that that federal But even if we keep our focus on the federal government, where judges are terribly independent and state judges not at all. judicial independence seems so strong, if we look at institutional But that’s not very satisfying. We know that state judges can independence we will find quite quickly that the judiciary as in fact be quite independent, and that we might have reason to a whole is hugely dependent on the political branches. The worry about the independence of federal judges, notwithstand- Constitution gives Congress the power to create lower federal ing these formal provisions. So a second approach is to look at courts or to decline to create them, to fund those courts, to regu- what the political branches are doing vis-à-vis the courts, to try late their jurisdiction, to make and adjust rules of procedure that to identify actions that appear to be threats. In one sense that’s govern what happens in those courts, to create alternate court pretty easy to do, because the acts or omissions that we’re inter- systems under Articles I and IV, to impeach judges, to override ested in are things we can observe. We can read the President’s nonconstitutional decisions. The President, for his part, has the tweets; we can see what sort of legislation is being proposed or power to appoint judges, and to enforce — or maybe not fully passed in Congress. What we can’t know, though, is how that’s enforce — judicial orders. And political actors also can play an affecting the judiciary, or affecting individual judges — and at important role in shaping public opinion about the courts in the end of the day that might be what we really want to know. terms of mobilizing support from the courts or mobilizing oppo- Part of the challenge here is that, particularly if we’re talking sition to the courts. about institutional independence, we run quickly into a really One question that we might ask about judicial independence is difficult baseline question. Institutional dependence of the which kind is more important — decisional or institutional? Or, courts is not necessarily a four-letter word. It is just a fact in which is the bigger threat — attacks on individual judges or more our system that the courts need the political branches in order general efforts to weaken the power of the judiciary as a whole? to do their jobs effectively. In order to assess whether, for exam- The former tends to get more attention; attacks on individ- ple, particular regulations coming from Congress constitute a ual judges get a lot of press, and they certainly are cause for permissible or impermissible effort to regulate the courts, we concern. But it may be the case that the larger threat to judi- would have to get some sense of magnitude, a sense of how much cial independence is the slow chipping away of judicial power is too much. Or, maybe we would need to get a sense of moti- and institutional capacity: things like shunting cases out of the vation; we might want to distinguish between actions that are JUDICATURE 55

THERE IS STILL A motivated by some sort of good-governance norm as opposed to What this suggests, REASON TO WORRY, actions that are motivated by a desire to change how judges are other than pessimism deciding individual cases. None of those questions is going to be about our ability to THOUGH, THAT easy to answer. measure independence and OUR RATHER A final approach to measuring judicial independence is to threats to independence, is TOXIC POLITICAL look at what judges themselves are doing and to try to iden- that we probably need to tify indicia of independent decision-making or its absence. But put together all of these ENVIRONMENT that, too, is no easy task. Suppose we look at the Supreme Court different kinds of measures MIGHT SPILL over five years, and we find that the Court has ruled against the and look at formal provi- OVER TO HOW government in some significant proportion of cases in which the sions alongside actions by THE PUBLIC government was a party. Could we conclude that judicial inde- political officials and insti- pendence is thriving and that the Court is in no way cowed by tutions, as well as what we FEELS ABOUT threats from the political branches? No, of course not. The Court see happening with judges. THE COURTS. may be ruling against the government only in cases that it knows We’d probably also want to aren’t very important. Or the Court may simply be declining to include some sense of public take cases that would prove to be controversial. At the extreme, opinion or public support in a system with a really weak judiciary, litigants may not even for the courts, because bother bringing cases that would involve a clash between the political reprisals are not judiciary and the government. going to carry nearly as On the other side, suppose we see what appears to be a clear much heft if they’re not threat to an individual judge and then we see that judge back backed by the public. down. What can we deduce from that? One semi-recent example If we look at public involves Judge Harold Baer of the Southern District of New York, opinion, we find ourselves who in 1996 decided a case called United States v. Bayless,4 which in a good news/bad news proved to be very controversial. It was a criminal case involving situation: Efforts to the apparent trafficking of a great deal of heroin. Judge Baer measure the public’s confi- ruled against the government on a suppression motion, exclud- dence in the courts, or the ing almost all of the drug evidence on the ground that the police Supreme Court specifically, suggest that the public has a fairly hadn’t had reasonable suspicion to make the stop that led to the high level of confidence in the Court as compared to Congress. The arrest and the search that revealed the drugs. In the course of number of respondents reporting a high level of confidence in the his opinion he also included some pointed language about possi- Supreme Court has hovered around 30 percent since the 1970s. ble corruption by the NYPD and the public’s perception of the That number has sunk in the last decade, going down from 35 police. He then faced a firestorm of criticism in the press and percent to a low of 23 percent in 2014, although it’s now coming from political actors. Republican members of Congress wrote back up. Even with the decline, though, it’s still a lot higher than President-elect Clinton a letter calling for Judge Baer to be confidence levels in Congress and the President, which are about impeached or to step down. It was an election year, and both six and ten percent now, respectively. So that might feel like good President Clinton and Senator Bob Dole, who was his opponent, news for the courts. made statements in the press implying that maybe Judge Baer There is still a reason to worry, though, that our rather toxic should change his mind or resign, or that maybe impeachment political environment might spill over to how the public feels should be on the table. When Clinton’s press secretary was asked about the courts. Studies of state court systems, which have differ- whether the President would ask for Judge Baer’s resignation, he ent methods of selecting judges, suggest that the more political told reporters that the White House was “interested in seeing the judicial-selection system, the lower the public’s sense of the how [Baer] rules” on reconsideration.5 Maybe not surprisingly, legitimacy of the courts. Public confidence in the courts tends to that was interpreted in the media as a thinly veiled threat to be lower in states with partisan judicial elections than in other Judge Baer. And, indeed, Judge Baer granted the government’s kinds of selection systems.6 When the public hears about judges motion for reconsideration, heard new evidence on the suppres- accepting campaign contributions or being subjected to or using sion motion, and ended up reversing himself. The defendant attack ads, public support for and confidence in the courts dimin- eventually was convicted and went to jail for a long time. ishes.7 That gives us some reason to worry, I think, that what’s So, is that evidence of a judge caving in the face of political going on elsewhere in our political system may have negative pressure? Or did Judge Baer sincerely change his mind in the consequences for how the public thinks about other government face of new evidence? It’s almost impossible to answer that ques- officials and institutions, including judges and courts. tion from the outside. It might even be impossible for Judge — MARGARET H. LEMOS, Robert G. Seaks LL.B. ’34 Baer to answer that question if we could ask him. Professor of Law, Duke University 4 56 VOL. 101 NO. 3

want to talk about the state of the judiciary, and specifically Circuit was badly divided; in fact there was not just a dissent, the state of the federal courts, from a different perspective: but four opinions. Each of these opinions was a model of inde- Ithe perspective of an executive branch legal advisor, a role I’ve pendent, rigorous, and admirable judicial thinking. The basic had the privilege of serving in for two administrations. But I first underlying issue, even broader than the important one that was need to say a word about what that role is. officially before the court, is: What are sound methods of statutory When I was working on my first book on the matter, I gave construction? Each of the four opinions gave a clear and princi- part of it to a friend to read and when he came back to me he pled statement of the judge’s views on that important issue, and said, “Well, it’s sort of interesting, but none of this is law,” by then did an admirable job of applying that particular judge’s views which he meant — being a little bit too polite to say it bluntly to the question before the court. Hively is a wonderful example — “What legal ‘advisors’ really do is write the rough draft of the of a court handling a very difficult question that has a big meta- propaganda that is going to be put out in defense of whatever the question underneath it, and doing both in ways that I admire. administration’s policymakers decide, isn’t it?” A second example, more briefly: Chevron deference, for decades Although of course a central feature of judicial review of administrative interpreta- sometimes people don’t tion of statutes, is a matter about which I think it’s fair to say do their jobs properly, the federal judges have begun a lively debate. That seems to me A time for the answer is no. The to be a great example of an important issue on which people answer is also no to disagree, and it’s a debate in which the federal courts of appeals an equal and opposite and district judges are playing a valuable role. clarity mistake, which is the The reason this positive observation about the state of the picture of the executive judiciary leaps out to me, wearing my executive branch lawyer branch legal advisor as hat, is that in the role of a legal advisor to executive branch poli- the little naysaying judge inside the executive. The policymaker cymakers, what I want most of all from the courts is not that they wants to do something, and the executive branch lawyer’s job is to agree with my personal views, or even that they take the posi- say “no you can’t.” tion that is most favorable to the executive’s own institutional Neither one of these describes, in principle or in practice, interests, but that the judiciary give statements of the law that the role of the executive branch legal advisor. There is an inter- are clear, carefully reasoned, and free of inappropriate political or nal executive branch legal process, but it is not the same as the ideological coloration. judicial process. To oversimplify, when the courts decide cases, Why do I need that in particular as an executive branch they are doing things within the central responsibility of the lawyer? Because in that role of giving advice to policymakers, I judiciary. That’s what courts do; they sit to “do law.” And when am giving advice that should be principled, in a context that by a court has done so, it has discharged its central function. The definition is political and ideological. The executive is a political executive’s central function is not to “do law.” It is to execute branch, that’s what it’s supposed to be. But the more that the the acts of Congress and to carry out the president’s independent judges do their job in ways that are independent of politics and constitutional responsibilities within the bounds of law. And ideology, the more able I am to do my different lawyer’s job in a what that means is that when the executive branch legal advisor political and ideological context. gives her advice, that’s not the end of the story. That’s not the My second observation, wearing my executive branch lawyer point at which the executive has done its job. That’s just one of hat, is that I think the federal courts make far too much use the factors that goes into the ultimate decision. of their tools for avoiding decisions on the merits. Standing is So I want to put on my executive branch lawyer hat and probably the most common means, but there are others I have look at the functioning of the federal judiciary as I see it at the in mind as well. When the courts avoid reaching the merits and moment. I have three observations. First, on the substance of the making a substantive decision on an issue that affects the exec- law, I think the federal courts, other than the Supreme Court, are utive branch, the immediate effects for policymakers are almost doing, generally speaking, an extremely good job in ways that always good. The long-term effects on the executive branch’s merit public trust, because their decisions and their opinions decision-making process, which includes law, are almost always explaining their decisions generally display clarity in judgment bad. That is in part because policymakers, like nonlawyers, often and professional rigor in their reasoning, and on important and find it very hard to distinguish a decision like “Well, the plaintiff contested issues, the judges are displaying that kind of commit- didn’t have standing,” from a decision like “There’s just no law ment to independent judgment that is a crucial component of there; the law is irrelevant.” That’s quite different from where judicial independence. the court reaches the merits and gives a decision, even if the Here are a couple of examples. Just this past Tuesday [April 4, court defers very substantially to the executive’s decision and 2017], the Seventh Circuit, sitting en banc, decided a case titled rules for the executive. Hively v. Ivy Tech Community College, on the application of Title In that second context, it’s clear there is law, and when I as an VII to a claim of sexual orientation discrimination. The Seventh executive branch legal advisor am trying to provide sound legal JUDICATURE 57

WHEN THE JUDICIARY advice to my clients, to the policymakers AVOIDS DECISIONS, I ily serves the writer’s personal interest in that I’m advising — when the courts have AM LEFT WITH WHAT telling us what he or she thinks, I think reached the merits and said something, I the judge should think twice before filing have something to work with from the judi- MAY WELL SEEM TO it. At the moment, I think the Supreme ciary. When the judiciary avoids decisions, MY POLICYMAKING Court is a lost cause, but if Court of I am left with what may well seem to my SUPERIORS TO BE Appeals judges model good opinion writ- policymaking superiors to be just my view. ing behavior, perhaps even the justices My third observation, wearing my exec- JUST MY VIEW. could be brought around in time. utive branch legal advisor hat, is that in a Why does this particularly strike me number of recent decisions, federal courts from the standpoint of an executive branch of appeals judges are showing that they are lawyer? It’s because executive lawyers never being influenced, understandably but unfor- have the luxury of just expressing their tunately, by the bad example of the Supreme opinion when they’re doing their job right. Court with respect to writing opinions. They don’t always do that, of course; there The Supreme Court’s members have, for are unfortunate and well-known exam- many decades, been under the unfortunate, ples of them failing to do so. But when mistaken impression that a judicial opinion executive branch legal advisors, in formal should be a personal opinion: “It’s what I advice-giving capacities, render advice, think. And since I think what I think, I’m they are always giving advice as an expres- going to go ahead and tell you.” That’s not sion of institutional rather than personal the proper role of a judicial opinion. It is — or should be — an insti- opinion. And when the judges suggest that, well, our opinions tutional statement, even if it is a separate opinion. are just opinions, this in fact models bad behavior for executive The result of thinking “well, an opinion is just my opinion branch lawyers, suggesting to an executive branch lawyer with a and therefore I will tell you” is a proliferation of unnecessary particular bee in the bonnet that “just like the judges I can use this and unhelpful separate opinions. I’m not saying that dissents and opportunity to advance my particular personal views, too.” There concurrences are illegitimate. When they advance the institu- are some unfortunate examples of this happening in recent years. tion’s and the entire profession’s understanding of the legal issue, So from the particular perspective I’ve taken, I think that they are profoundly beneficial. All four of the opinions in this there are good things to be said about how the federal courts are recent Seventh Circuit case do that. They are useful; I admire doing and some unfortunate things as well. the judges not just for the craftsmanship, but for the decision to — H. JEFFERSON POWELL, Professor of Law, Duke University write and file the opinions. But when a separate opinion primar-

alifornia’s Chief Justice Tani Cantil-Sakauye, in her State of proceeding or in a subsequent case, and often it’s not hard to the Judiciary speech to the California Legislature, spoke about detect their attitudes. Cwhat she called unprecedented polarization in our national You may not have noticed this — I don’t think the event dialogue about politics and about the courts. She was referring, in received much press outside California — but one of the most part, to decisional independence, as described by Professor Lemos. remarkable political challenges to a judicial decision occurred in the I would like to last election. I’m not referring to anything that happened in the pres- suggest we should be idential race. Last November, California voters were asked to vote slow to conclude that on the propriety of a United States Supreme Court constitutional A time for criticism of the judi- decision. (We always have such interesting ideas in California. I ciary and criticism of think the rest of the country is better for it because the other states judicial decisionmak- can watch what we do and decide whether it was a good or a bad justice ing is a significant experiment.) The California Legislature voted to put on the ballot threat to the Third a referendum on a United States Supreme Court decision. Branch. Judges for The first thing that happened, of course, was a challenge to the most part understand that enduring criticism is part of the ballot initiative, arguing it was not a proper subject to be put their job. Trial judges often say that whenever we decide a case to the voters. That issue went all the way up to the California we make 50 percent of the people before us unhappy because, Supreme Court. The California Supreme Court, including the after all, someone loses in just about every case we decide. Trial Chief Justice, ruled that, yes, a referendum on a United States judges are especially aware of the reactions of a losing party or Supreme Court decision was a proper subject for a ballot initia- attorney. We often see them again in our court for a subsequent tive in the State of California. 4 58 VOL. 101 NO. 3

THE STATE COURTS The text of the initiative asked voters HAVE TO BE A FORUM center to seek an order to protect them- the following: “Shall California’s elected WHERE THE PEOPLE selves from domestic violence, or violence officials use all of their constitutional in their communities or from their neigh- authority to overturn Citizens United v. WHO LIVE IN OUR bors, or violence in their workplace, or Federal Election Commission” — and the COMMUNITY CAN from elder abuse. They wait in the hallway voters even were provided the case cita- COME INTO OUR outside the courtroom where we do that tion, 558 U.S. 310 (2010). The voters work. You can see people on that same answered “yes,” overwhelmingly. So that COURTROOMS. floor who are old, who sometimes are in was it. The voters said they wanted their wheelchairs. They look confused, and they Legislature to take up all constitutionally are in the courthouse for a conservatorship available arms and lead them into battle proceeding because their family is arguing against the United States Supreme Court’s about who will take care of them now that Citizens United case. In the national debate, they no longer can take care of themselves. for the most part, no one noticed. Perhaps And on that same floor of the courthouse nobody noticed because nobody cares what you also can see people who are waiting California thinks. But certainly there was for child custody evaluations, because they not a flurry of op eds or scholarly articles are in conflict about who is going to take saying that separation of powers or the rule care of the kids and who will make deci- of law was threatened. sions about the kids in the circumstances I think there’s a serious point here: of a broken family. Elsewhere in our court Perception of the potency of a threat to we have unlawful detainer courts, which judicial independence based on criticism are eviction courts, and we have depen- of a judicial decision can depend on the extent to which the dency courts, which adjudicate what happens to children who observer agrees or disagrees with a decision. We have to be care- are living in families where they are being abused, either physi- ful to check our perception of what actually is a threat to the cally or otherwise, and judges are trying to see to the protection independence of judicial decision-making. We need to consider of those children. whether we are reflecting our own bias as to the correctness of There are an estimated one million undocumented persons in a decision when we worry about politicization of the judiciary Los Angeles and Orange Counties. There are ten million persons in based on criticism of judicial decisions. Los Angeles County. Close to one-tenth of our Southern California Turning to institutional independence, in her State of the population arguably is undocumented. The federal government California Judiciary address, our Chief Justice made a very specific has exclusive authority under the Constitution for enforcement of point about what she perceived as a threat to the work of the state the immigration laws. Without pointing fingers about what has courts based on immigration enforcement in state courthouses. As happened with immigration enforcement over the last ten or 20 she put it, we should step back and look at why we have checks years, at the local level we have been left to try to shape a commu- and balances and recognize what the justice system stands for and nity that incorporates these individuals. We strive for a society what it promises. Our Chief Justice wrote to the Attorney General where everyone is protected from criminal violence and where and to the Secretary of the Department of Homeland Security and children are protected and where we have remedies for sex traffick- asked them to refrain from seizing undocumented individuals ing and domestic violence and abuse in the workplace. within the walls of our state courthouses. The Attorney General The state courts have to be a forum where the people who wrote back and communicated an unqualified “no” to that request, live in our community can come into our courtrooms. We need and, indeed, schooled the Chief Justice on what the Attorney witnesses to appear for criminal cases. We need a forum for General said was her misuse of the word “stalking.” marital disputes and community disputes. We need to protect I don’t want to get into the political rhetoric about sanctuary children from abuse and sex trafficking. If employer sanctions are states and sanctuary counties and sanctuary cities and sanctuary not being vigorously enforced, then we need to address abuses of campuses. But I do want to talk about our state courthouses. They people in the workplace. don’t look like federal court. They perform functions that federal So in my judgment, this issue concerns the institutional courts do not need to perform. State courthouses are places where independence of our state courts. I think our Chief Justice was real people with real problems that can’t be solved anywhere else absolutely correct in saying that the federal government should come to seek justice under law. not act to deter any person from coming into our state court- If you can envision this in your mind, there is one floor of houses. We must back away from an absolutist approach that our largest state courthouse in Los Angeles that to me embodies could decrease rather than increase the safety of our communities. the needs of the people who come into state courts. On that one — CAROLYN B. KUHL, judge (and former presiding judge), floor you can see people waiting outside of our restraining order Superior Court of California, County of Los Angeles JUDICATURE 59

n the late 19th century, the 19th governor of A time a second list or maybe a third list if they’re Texas, Sul Ross, said the loss of public confi- dissatisfied with the prospects. They want I dence in the judiciary is the greatest curse that for wide-open autonomy. Legislatures are pressing can ever befall a nation. Governor Ross oversaw for a confirmation role. It’s not just enough that the dedication of the majestic Texas Capitol and the governor picks from a list; the lawmak- is also the only Texas governor to call a special reform ers want a voice as well. And in those states session of the Legislature to deal with budget where the appointed judge has a retention elec- surplus. Good times. And he was right about the tion after they’re named, there are proposed distinctive role of the judiciary in our constitutional architecture. reforms to alter the threshold vote required to retain your seat. Dean Levi asked me to discuss judicial selection and reform In every state but two it’s a simple majority: You get 50 percent, efforts currently percolating around the country. Judicature you survive. In Illinois, it’s 60 percent. In New Mexico, it is, recently published a helpful article that I’m sure you’ve all of course, 57 percent. Some states are considering boosting the scoured and dog-eared. And I’m going to draw a lot of my mate- percentage required to keep your seat. rial from that terrific overview of current state-level reforms. Two states have scrapped their merit-commission system Judicial selection is certainly an issue that implicates judicial altogether. Kansas did it for the Court of Appeals in 2013; independence and public confidence, but it’s fair to say the Tennessee did it in 2014, scrapping their commission in favor of perfect system has proven elusive. I think there are just vary- a straight-up governor-appoint-and-senate-confirm system. But ing degrees of imperfection — and, I confess, I have not cracked while some states are repealing their merit-commission system, the code. I’m intimately acquainted with all the downsides to other states like Minnesota and Pennsylvania are considering my state’s partisan-election system. I’ve gotten very up close and adopting such a system. personal with all the drawbacks in the Lone Star State. Moreover, states that elect judges seem split on the question People are sharply divided — first, about how judges do their of partisan versus nonpartisan. West Virginia ended partisan job, but also about how judges get their jobs. In Texas, again, we elections for all courts in 2015. North Carolina, which had elect on a partisan ballot, and if you were to ask voters — because nonpartisan elections, has now adopted partisan elections for as Professor Lemos mentioned, partisan elections inspire the least appellate courts, and just recently the legislature passed, over confidence among people — but if you were to ask my fellow the governor’s veto, a return to partisan trial court elections. Texans, ‘Hey, do you suspect that donations drive decisions? Do There is also a lot of activity on how judicial campaigns are you suspect that politics seeps in?’ they might reply, ‘Yeah, I bet being funded around the country and how that impacts recusal. it probably does.’ And if you were then to follow up, ‘So, are you In West Virginia, they’ve moved to public financing of appel- willing to give up your right to elect your judges?’ they would late court races. On the other hand, some states that had public probably say, ‘Over my dead body.’ financing, like Wisconsin and North Carolina, are repealing it. There’s been substantial activity around the country lately There are four states that now have mandatory recusal for a set around judicial-selection reform. Historically, reform efforts wax amount of donations; some of these rules are by statute and some and wane and ebb and flow, but in the last half-decade, there’s really are by court rule. In California, they require disqualification if a been a definite uptick, a lot of proposals and a lot of recent activity. judge received campaign contributions from a party or an attorney But, strangely, there’s no prevailing mood or direction. And again, over a certain amount. In Alabama, there’s sort of a sliding-scale giving credit where it’s due, I’m drawing heavily here from the rebuttable presumption for recusal or disqualification based on the recent Judicature article [William Raftery, Trends in Judicial Selection percentage that a judge received. The Wisconsin Supreme Court is Methods, Judicature, Vol. 100 No. 1, Spring 2016]. States are debating a rule to create set-amount limits on recusal and disqual- both adopting and repealing the very same reforms. State A may ification. In Texas, there are some bills pending to reform judicial adopt X as the greatest idea, and State B may rescind or repeal X selection. Am I hopeful? Absolutely. Am I optimistic? Absolutely because they’ve tried it and don’t like it, so they’re going to scrap not. Every time lawmakers gather, bills are filed to reform judicial it for something new. Most of the reform activity is occurring in selection, but most never make it out of committee or even ever states that use a judicial nomination commission for judge pick- get a committee hearing. ing, which is roughly half the states. There’s interest in amending There are two states today that elect judges on a partisan ballot that system, and there’s also interest in ending that system. There with straight-ticket voting. About nine states have a partisan are a lot of contentious political fights and tugs of war over who ballot, but only two of those nine couple that with straight- picks the pickers. Who gets to name the members of the judicial ticket voting — Alabama and Texas, though Texas lawmakers nominating commission? How are those members chosen? How are poised to scrap straight-ticket voting for all races. And there’s many are chosen? What sorts of hard-wired biases are baked into a powerful tendency for party-line voting and for high-profile, such entities? There are turf battles galore. executive-branch, top-of-the-ballot races to drive outcomes, to Governors are pressing legislatures for more discretion; they determine victors and victims in down-ballot judicial races. The want more names on the list, they want a deeper pool, they want overwhelming majority of judges in my state are elected, frankly, 4 60 VOL. 101 NO. 3

THE RECESSION FROM not so much on their legal qualifications, not so much on their where County A ALMOST A DECADE AGO judicial philosophy, not so much on how awesome or awful of a might have a robust campaign they run, but rather on how their party performs at the e-filing system, but IS OVER, BUT THERE top of the ballot. Judges are swept in and out of office because of County B next door IS AN OVERALL SENSE these partisan tidal waves. They’re just along for the ride, carried might have nothing. THAT MANY STATE along by the grander political current. If their party’s having an up There is a big ongo- COURTS ARE STILL year, good for them. If they’re having a down year, bad for them. ing debate about the As I mentioned, Texas has a pending bill to eliminate straight- impact that access to FEELING THE IMPACT. ticket voting, meaning to cast a vote in judicial races voters would online court records physically have to take the time, make the effort, break the sweat, might have on indi- go down their ballot line by line, and vote for judges individually. viduals. In criminal You could no longer click the straight-ticket icon on the voting cases, for example, machine and be done with it. should a defendant’s There is another piece of interesting judicial-selection news case or docket infor- in Texas: Last summer, 2016, a Voting Rights Act lawsuit was mation be put online filed challenging the at-large, statewide method, of electing at the time of arrest, Texas high-court judges. In Texas, we run statewide, border to or at the time of border, 254 counties and a couple of time zones. The claim in the docketing as it is in lawsuit is that because judges are elected statewide, minorities most jurisdictions? don’t have a fair shot at electing candidates of their choice, and Or maybe only upon the plaintiffs are proposing that we move to a system where high conviction — which is how it is in New Jersey? If a person is court jurists are elected by districts, as in some other states. found not guilty, should the info be pulled from the court’s That’s the lay of the land in terms of judicial selection reform. online system? Alaska passed a law last year requiring that, and In terms of resources and how courts are funded, here, too, I a lot of other states have debated it. What about family cases? will draw heavily from a recent article in Judicature [Roundtable What about cases involving minors? discussion, Money or Justice? How Fees and Fines Have Contributed There’s also the tension between having a uniform border- to Deep Distrust of the Courts — And What Chief Judges Are Doing to-border statewide system versus lots of little bitty discrete About It, Judicature, Vol. 100 No. 4, Winter 2016.]. In Texas, county-level systems, similar to the localized e-filing and e-dock- the judiciary gets a whopping one-third of one percent of the state eting systems. States are debating whether to end the practice of budget. The judicial branch of government gets roughly one-third of one individual county case management and other e-systems in favor percent of the state budget. I’m told we’re still flush compared with of a statewide system that serves all courts. And then how is it all judiciaries in other states like California and North Carolina. The going to be paid for? By a court technology fee on all cases? Or recession from almost a decade ago is over, but there is an overall more kind of pay-per-view model, like PACER, where you view a sense that many state courts are still feeling the impact. There document and you pay a fee? are still court closures and furloughs taking place or planned for As you can see, debates over judicial selection and judicial the next fiscal year in states like Alaska, Iowa, and New Mexico. resources are ongoing and dynamic. The Connecticut judiciary has endured some large-scale layoffs. In — DON R. WILLETT, Justice, Texas Supreme Court Kansas, many trial court employees have reported needing to take a second job in order to make ends meet. As noted in Judicature, people perceive the courts as being flush with cash, maybe because courts take in fees and fines and costs, which I think skyrocketed during the financial downturn as courts A time to reflect became looked upon as a revenue-generating center by state and local governments. But the public doesn’t really grasp how little ’m going to take us back to the more general questions raised of that money stays within the judiciary. I by public criticism of the decisions, role, and authority of the Technology is helping a bit, but technology often requires a federal courts. President Trump has been quite critical of certain big outlay on the front end. You have savings down the road over judicial decisions, particularly those involving his controversial time, but the big up-front cost is often too daunting for lawmak- travel bans. I want to ask three things about this current round of ers to swallow. But people want court technology. There was a public actors criticizing federal courts: One, is this level of criti- survey last year that said only 39 percent of Americans view courts cism of the federal courts unusual, historically speaking? Second, as innovative — 39 percent! That was down about six points is it a bad thing to have criticism of the federal courts? And then from just one year before. Many states are moving to e-filing and third, what is the role of judges themselves, and of the academy, e-docketing systems, but for the most part, those are local options, in creating the climate in which criticism is flourishing? JUDICATURE 61

My Con Law students always seem to think that the sky is fall- with President Trump. In the modern era, Professor Lemos has ing, and that this is the most contentious and polarized and awful already mentioned President Clinton’s criticism of federal district age that we’ve ever lived in. So I love telling them about the early judge Harold Baer for being soft on crime.16 Certainly President Republic, because if you think things are bad now, just imagine Obama criticized the Court over its Citizens United decision with what the people in the early Republic had to go through. When the justices sitting right in front of him at the State of the Union.17 the Jeffersonian party came in after the election of 1800 and the More importantly, there was a lot of pretty ominous talk out of the Federalists retreated into the judiciary — which they’d appointed White House about why the Court should not dare to strike down all of, mind you — the Jeffersonians did a little more than criti- the Affordable Care Act that may have actually had some influence cize. They refused to honor certain appointments that hadn’t been on what happened in that case.18 finalized, like Mr. Marbury’s.8 They eliminated a lot of judicial So I think what we’re seeing now under the present adminis- positions that the Federalists had created and therefore threw those tration is really a big deal in the media and the academy mostly judges out of office, notwithstanding Article III’s quaint idea of because Trump is doing it, and whatever he is doing is outrageous life tenure.9 They stripped the jurisdiction of the federal courts almost by definition. My point is not simply that the current by eliminating federal question jurisdiction, which wouldn’t come criticism is not unusual in historical context. Fundamentally, back until 1875. They cancelled the entire term of the Supreme I do think that the present period is unusual. What is unusual, Court, so the Supreme Court couldn’t pass judgment on what they however, is the astounding level of deference that the federal courts had done, and then the Jeffersonians started impeaching federal get from the political process in the contemporary era, and the judges — not because the judges in question were drunks or remarkably low level of public criticism of their decisions. What is crooks but pretty clearly because the dominant party in Congress remarkable, historically speaking, is the very high level of judicial disagreed with those judges’ decisions.10 independence that we see at the present moment. That was a little worse than now. I don’t think that the reasons for that are hard to find. Consider If you fast forward to the Civil War and Reconstruction, the sorts of things that the federal courts were deciding in the old Congress packed and unpacked the Court. Congressional days when the level of conflict was so much higher: They were Republicans expanded the Court to ten justices so that President deciding cases about slavery; they were assessing the validity of Lincoln could appoint new justices to out-vote the people that a vast bureaucratic regulatory state; they were considering chal- brought you Dred Scott; then when Andrew Johnson became pres- lenges to segregation in the South and upending the South’s entire ident and Congress didn’t like him, they decreased the number way of life. Those were big questions. Those were truly polarized of justices to seven so that Johnson wouldn’t have any appoint- times. There is a technical sense in which our politics now are ments.11 Then there was Lincoln himself, who — in response to more polarized than ever, and that is the sense in which for the first Justice Taney’s ruling on circuit in Ex parte Merryman12 that the time in American history, ideology, and party affiliation largely president did not have unilateral authority to suspend the writ of dovetail.19 That is a new situation, to be sure, and it has important habeas corpus — not only defied the ruling and criticized it in a implications for law. But at bottom, this is a technical meaning speech to Congress, but also seriously considered locking Justice of polarization. I think the more natural meaning of polarization Taney up.13 And when, during Reconstruction itself, the Supreme would be about the size of the gap that divides the people on one Court was preparing to consider the legality of continuing mili- side of the debate from the people on the other, and the size of tary government over the South, Congress simply eliminated the the stakes involved in political and legal disputes. We don’t have Court’s jurisdiction to do so.14 fights anymore about whether you can legitimately own human That was also a little worse than “attacks” on the judiciary today. beings. We don’t have fights anymore about whether there should Then there’s the New Deal. After the Supreme Court struck be a significant federal regulatory state. We don’t have fights about down a couple of key New Deal programs, President Roosevelt segregation and whether it is fundamentally legal or not. And so devoted an entire “fireside chat” to telling the nation — at it’s not surprising, given that the Supreme Court is not intervening length and in detail — that the Supremes were not doing on levels of that magnitude anymore, that judges get high levels their job, not behaving like justices, and standing in the way of deference and the general temperature of criticism of the Court of economic recovery. FDR also made a huge effort to pack the is historically low. We should remember this before we wring our court, of course. And there are also lesser-known examples. Most hands overmuch about the President’s latest anti-judicial Tweet. significantly, when FDR worried that the Supreme Court might Now is criticism bad? I would say no. I think criticism is the invalidate his abrogation of the “gold clauses” in government primary check, for all practical purposes, on judicial power. My Con contracts and Treasury bonds, the President prepared a speech Law casebook, for example, includes FDR’s Fireside Chat criticiz- announcing that he would defy the Court’s order. (Ultimately, the ing the judiciary in its entirety. It’s a remarkable document. It’s Court ruled FDR’s way and the speech stayed in the drawer.)15 the President of the United States sitting down with the American We do not see, in the contemporary era, any comparable people and talking about the Constitution. How great is that? He’s proposals to alter the federal courts’ structure, strip their jurisdic- trying to have a serious discussion about whether the Supreme Court tion, or defy their orders. Nor is simple criticism of the courts new is getting it right or getting it wrong and why. I think that is an 4 62 VOL. 101 NO. 3

CRITICISM [IS] A CRUCIAL incredibly healthy activity for the body CHECK ON JUDICIAL ERROR prefer that most Americans not be politic to be involved in. able to pick him out of a lineup. This Criticism has to be the primary AND OVERREACH. is a man who doesn’t go on trips, who check on courts because most of the doesn’t give speeches. When he finally other checks that Congress and the was talked into giving that address at President have on the federal courts Harvard after he retired, I accused are effectively “nuclear options.” They him of having become a publicity are very, very difficult to employ in hound, and I think that’s probably the practice. Consider the tools the polit- meanest thing I could possibly have ical branches have: said to him. So I start from a baseline Stripping the jurisdiction of the that judges should shut up and judge, Supreme Court. That is a very serious and not give interviews, and not talk thing to do, and it has hardly ever to the media. But it does seem like happened in practice despite numer- the judges are out there a lot, they’re ous proposals meant to limit judicial giving a lot of speeches, they’re giving power in particular areas. a lot of interviews, and I think that encourages the rest of us to Impeachment. We haven’t had a serious attempt at impeachment think of them as part of the political process. on the grounds that Congress disagrees with what the Court is Lately their participation has taken a more overtly political up to since the early Republic. And thank goodness for that, as it tone. Ruth Bader Ginsburg has given multiple political inter- would seriously undermine the rule of law. views, stating “I can’t imagine what this place [the Court] would Constitutional amendment to override Supreme Court decisions. We be — I can’t imagine what the country would be — with Donald have had a few of these but generally on decisions that, while Trump as our president.”21 She has suggested in interviews that controversial, did not involve basic social controversies. Most particular decisions — like District of Columbia v. Heller — would recently, the 26th Amendment “overruled” the Supreme Court’s be ripe for overruling with a new liberal appointee to the Court.22 decision that Congress could not require states to let 18-year- This sort of thing encourages people to think about judges polit- olds vote without amending the Constitution.20 When that ically. Likewise, when Richard Posner gives interviews and decision was overruled, it wasn’t so much an expression that the talks about his colleagues at the court as stupid or ridiculous or Supreme Court was out of touch and had gotten it wrong, it was completely political,23 when he writes that in the Foreword to simply a general consensus that the Constitution in fact needed the Harvard Law Review and then popularizes it at every chance to be changed on that question. But basic social controversies he gets,24 that’s not great for the perception that judges are doing like abortion or same-sex marriage are, by definition, too contro- something different from politics. versial to permit resolution by constitutional amendment. What about the academy? What’s happened in the academy is In any event, I think these institutional checks on the courts that we’ve got a fad, if you will, about political science analysis of are unlikely to be used often or effectively. That leaves criticism judicial decisions. It’s called the attitudinal model. The thesis is as a crucial check on judicial error and overreach. that courts decide based on their political attitudes and not based Now, I do want to underscore Professor Lemos’ point that there on the law.25 And I think this has become popular in the press, is a whole different set of issues that go to the role of the courts in too. For instance when Linda Greenhouse retired at the New York dispute resolution throughout the society, the increasing use of arbi- Times and was replaced by Adam Liptak, his first columns in his tration, the increasing difficulty of bringing class actions and other new capacity as Supreme Court reporter were all about this atti- forms of getting things into court. Change in what you have to show tudinal work in political science and how the Supreme Court is to survive a motion to dismiss, in how expensive litigation is, and driven largely by ideology.26 the general level of access to justice are all terribly important issues. I think that’s dangerous because I think much of it is very, very And when the political branches intervene on these issues, they can bad work, frankly. The most fatal problem is that if you’re going to certainly affect the weight and independence of the courts in society. have a scientific analysis of judicial behavior, you need to be able to But I think that’s a separate set of questions from the phenomenon define what you’re testing against.27 So what is a political decision? of politicians criticizing specific judicial decisions. What is a legal decision? What is the difference? That is something The third point is, what do the judges and the professors have that jurisprudes have struggled with for centuries, and it’s some- to do with all this? I would suggest that part of the impetus for thing the political scientists have really no answer for. But how can criticism of the Court is self-inflicted. And I would suggest that you say the “attitudinal model” triumphs over the “legal model” if to the extent that there is an increasing cynicism about whether you can’t define the difference? Moreover, there are hopeless coding the Court is political, that might be partly the academy’s fault. So problems in trying to figure out what counts as a conservative let’s talk about the judges first. Now keep in mind, I clerked for decision or a liberal decision; the coding criteria are completely Justice David Souter. So I clerked for a justice who would vastly indeterminate and contradictory.28 And you can’t code for relative JUDICATURE 63

effect: For instance, if you decide a case points in a conservative 5 Alison Mitchell, Clinton Pressing Judge to Relent, NY Times, March 22, 1996. direction, there’s no way to code for the possibility that a court 6 See, e.g., Sara C. Benesh, Understanding Public Confidence in American Courts, 68 J. could have gone a lot further but it didn’t, so maybe it wasn’t such a Pol. 697 (2006); Damon M. Cann & Jeff Yates, Homegrown Institutional Legitimacy: Assessing Citizens’ Diffuse Support for State Courts, 36 Am. Pol. Res. 297, 316 (2008). conservative decision after all. So it’s just not very good work. And 7 See, e.g., James L. Gibson, “New-Style” Judicial Campaigns and the Legitimacy of State High yet it’s become the focus of the media’s reporting on the Court and Courts, 71 J. Pol. 1285 (2009); James L. Gibson, Challenges to the Impartiality of State has also become the focus of a lot of law professor commentary on Supreme Courts: Legitimacy Theory and ‘New-Style’ Judicial Campaigns, 102 Am. Pol. Sci. the Court — from people who really ought to know better.29 Rev. 59 (2008); James L. Gibson et al., The Effects of Judicial Campaign Activity on the Legitimacy of Courts: A Survey-Based Experiment, 64 Pol. R. Q. 545 (2011). Finally, I think the judges have also contributed to an ideology- 8 See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). based view of the courts by behaving in certain ways that make 9 See Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803) (upholding Congress’s action). the attitudinal model seem intuitively plausible. I’ll just focus 10 See generally Robert G. McCloskey, The American Supreme Court 23-30 (4th on two. One is the tendency to vote as blocks on the Supreme ed. 2005). Court. I think Justice Ginsburg commented a couple of years ago 11 See Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional Conventions, and that “[w]e [on the Court’s left] have made a concerted effort to the Judicial Separation of Powers, 105 Geo. L. J. 255, 271-72 (2017). speak with one voice in important cases.”30 I thought that was 12 17 F. Cas. 144 (C.C.D. Md. 1861). a shocking thing to say. When you have very different justices 13 See generally William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime 11-39 (2000). — for instance, justices who have as different a judicial philoso- 14 See Ex parte McCardle, 74 U.S. 506 (1869) (upholding the jurisdiction strip). phy as Steven Breyer, a highly-sophisticated consequentialist, and 15 See generally Gerard N. Magliocca, The Gold Clause Cases and Constitutional Necessity, David Souter, the historian and the lover of complicated doctrines, 64 Fla. L. Rev. 1243 (2012). the more complicated the better — who always vote together and 16 See Margaret Lemos comments, p. 10-11 of this article; see also Alison Mitchell, join common opinions, it’s hardly surprising that some observers Clinton Pressing Judge to Relent, N.Y. Times, March 22, 1996, available at http:// conclude something else besides the law must be going on. www.nytimes.com/1996/03/22/nyregion/clinton-pressing-judge-to-relent.html. 17 The other practice I would say would be persistent dissent. By See Greg Jaffe, Why does President Obama criticize the Supreme Court so much? Wash. Post, June 20, 2015, available at https://www.washingtonpost.com/politics/ this I mean that a judge, after losing on an issue in a particular why-does-president-obama-criticize-the-supreme-court-so-much/2015/06/20/ case, continues to dissent from future applications of that principle b41667b4-1518-11e5-9ddc-e3353542100c_story.html?utm_term=.7976941d0ee1. because he just refuses to accept the prior decision as settled law.31 18 See id. This has occurred most prominently in the Court’s state sover- 19 See, e.g., Thomas Mann, Foreword, in American Gridlock: The Sources, eign immunity cases, but it also seems to characterize the Court’s Character, and Impact of Political Polarization, xxii-xxiv (James A. Thurber & Antoine Yoshinaka, eds. 2015). jurisprudence on affirmative action, campaign finance, and other 20 See Oregon v. Mitchell, 400 U.S. 112 (1970). crucial issues. When Justices continue to treat their own view of 21 Pete Williams, Anna Merod & Aliyah Frumin, Ruth Bader Ginsburg the law as equally valid despite having seen it rejected in prior Doubles Down on Donald Trump Criticism, NBC News, July 13, 2016, decisions, the cost is to encourage the view that law is simply poli- available at http://www.nbcnews.com/politics/2016-election/ruth-bader-ginsburg- tics. Everything, as Justice Ginsburg said of Heller, can be fixed doubles-down-trump-criticism-n608006. 22 if we get one more vote. Better, I think, to reject the notion that See Adam Liptak, Ruth Bader Ginsburg, No Fan of Donald Trump, Critiques Latest Term, N.Y. Times, July 10, 2016, available at https://www.nytimes. the content of the law can be changed through a few new appoint- com/2016/07/11/us/politics/ruth-bader-ginsburg-no-fan-of-donald-trump-cri- ments, as the Court did in Planned Parenthood v. Casey.32 Say what tiques-latest-term.html. you will of that opinion’s result or its reasoning, it demonstrated 23 See, e.g., Casey C. Sullivan, Posner’s War on the Supreme Court Continues, FindLaw, the continued existence of a practical gap between law and politics. Dec. 5, 2016, available at http://blogs.findlaw.com/supreme_court/2016/12/ posners-war-on-the-supreme-court-continues.html; see also Debra Cassens Weiss, I think judges and professors have to be really careful if we want Posner says Supreme Court is ‘awful,’ top two justices are OK but not great, ABA to maintain that vital separation. The federal courts surely enjoy Journal, Oct. 25, 2016, available at http://www.abajournal.com/news/article/ more deference and independence today than they have at virtually posner_says_supreme_court_is_awful_top_two_justices_are_okay_but_not_great. any point in our history. The greatest threat to that autonomy is 24 See Richard A. Posner, Foreword: A Political Court, 119 Harv. L. Rev. 32 (2005); see not bombastic presidents, but rather the gradual erosion of faith also sources in note 16, supra. 25 See, e.g., Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the that judges are doing something other than politics. Attitudinal Model Revisited (2002). — ERNEST A. YOUNG, Alston & Bird Professor of Law, 26 See, e.g., Adam Liptak, Court Under Roberts is Most Conservative in Decades, N.Y. Times, Duke University July 24, 2010, available at http://www.nytimes.com/2010/07/25/us/25roberts.html. 27 See, e.g., Ernest A. Young, Just Blowing Smoke? Politics, Doctrine, and the Federalist Revival after Gonzales v. Raich, 2005 Sup. Ct. Rev. 1, 14-15. 1 For a terrific overview, from which much of the following discussion is drawn, see 28 See id. at 9-13. John Ferejohn, , Independent Judges, Dependent Judiciary: Explaining Judicial Independence 29 See, e.g., Posner, Foreword, supra note 17. 72 S. Cal. L. Rev. 353 (1999). 30 2 Jess Bravin, For Now, Justice Ginsburg’s ‘Pathmarking’ Doesn’t Include Retirement, Wall Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1666 (2015). St. J., May 2, 2014, available at https://www.wsj.com/articles/for-now-justice-gins- 3 Sandra Day O’Connor, Judicial Accountability Must Safeguard, Not Threaten, Judicial burgs-pathmarking-doesnt-include-retirement-1399026261?tesla=y. Independence: An Introduction, 86 Denv. U. L. Rev. 1, 1 (2008). 31 See generally Allison Orr Larsen, Perpetual Dissents, 15 Geo. Mason L. Rev. 447 (2008). 4 913 F. Supp. 232 (S.D.N.Y. 1996). 32 505 U.S. 833 (1992). 64 VOL. 101 NO. 3 JUDICATURE 65

CRUSHED

Social security disability litigation poses big challenges for federal courts. Inconsistent procedures and high remand rates are just some of the difficulties. A new study offers perspective on what’s wrong and how it can be fixed.

JONAH B. GELBACH & DAVID MARCUS

person who has sought and to the next, even though appeals emerge from that has attracted a fraction of the scrutiny failed to obtain disabil- an agency attempting to administer a single that disability claims adjudication within the ity benefits from the Social national program consistently. agency has weathered.1 We understood our Security Administration If a claimant files suit in Brooklyn, charge to involve three main questions: (“SSA” or “the agency”) N.Y., for example, a particular set of proce- • What factors explain why claimants can appeal the agency’s decision to a federal dural rules will apply, and she will have a prevail so often when they appeal to Adistrict court. In 2016, nearly 18,000 people 70-percent chance of convincing a district the federal courts, even after multiple did just this. Even though claims pass judge to remand her case to the agency. If layers of review within the agency? through multiple layers of internal agency she files suit in Little Rock, Ark., she will • What factors explain variations in review, many of them — about 9,000 in encounter a different set of procedures, a the rates at which various federal 2016 — return from the federal courts for magistrate judge will most likely decide her districts remand claims to the even more adjudication. This litigation case, and her case will be heard in a district agency? composes about 7 percent of the federal where claimants win much less often — • How does the litigation of disability district courts’ civil docket and is worthy of only about 20 percent of the time. appeals vary from district to district? study for that reason alone. But also signifi- In late 2014, the Administrative Con- cant are dramatic differences in the handling ference of the United States asked us to study We combined traditional legal research of social security litigation from one district social security disability litigation, a subject with quantitative analysis to find answers. 4 66 VOL. 101 NO. 3

The agency supplied us with a substan- eration before they can seek a hearing tial amount of data, which we added to before an ALJ.7 Ultimately, 746,300 docket report information drawn from TO FORESTALL claimants in FY2015 took their cases to PACER and publicly available data. To hearing offices.8 Presumably, this docket supplement and guide our quantitative AN INTOLERABLE represents the 25 percent or so hardest inquiry, we interviewed about 150 people BACKLOG, THE claims. A claimant with a strong case involved in the disability claims adjudi- SOCIAL SECURITY for benefits should prevail at the initial cation process, including federal judges or request-for-reconsideration level, and and their law clerks, administrative law ADMINISTRATION a claimant with a weak case, if rational, judges (“ALJs”), agency officials and staff, EXPECTS should not pursue her claim any further. and claimant representatives.2 We also ADMINISTRATIVE Second, any judgment about the discussed our research with Department success of the SSA’s disability claims adju- of Justice personnel. LAW JUDGES dication process must grapple with the In July 2016 the Administrative TO RENDER AN sobering reality that claimants annually Conference released the result, a 180-page add about 750,000 cases to the national report discussing all aspects of disabil- AVERAGE OF 500 hearing office docket for ALJs to decide. ity claims litigation.3 This article TO 700 “LEGALLY To forestall an intolerable backlog, the summarizes some of the findings that SUFFICIENT” agency expects ALJs to render an average we believe should particularly interest of 500 to 700 “legally sufficient” deci- federal judges.4 These include informa- DECISIONS EACH sions each year. In FY2013, the pace of tion, perhaps unknown to federal judges, YEAR. IN FY2013, ALJ decision-making peaked at 48 cases about how the agency adjudicates claims; THE PACE OF decided per ALJ per month. To handle a perspective on the national remand rate these crushing dockets, the ALJs we inter- of about 50 percent and what it signifies ALJ DECISION- viewed reported that they spent about two about agency and judicial performance; MAKING PEAKED and a half hours per case on average. This explanations for differences in the remand AT 48 CASES time includes all tasks, from beginning rate from one district to the next; and an initial review of documents to holding commentary on the needless complex- DECIDED PER a hearing to signing the final draft of an ities created by the dizzying array of ALJ PER MONTH. order deciding the claim. district-specific procedural rules and Caseloads render what was once contro- practices that govern this litigation. We versial among ALJs — decision writing also briefly discuss suggested reforms. by staff attorneys and paralegal specialists The Administrative Conference recently — indispensable. Decision writers, virtu- adopted one of our recommendations, a our report. Because federal judges typically ally unknown to the federal judges whom proposal that the Judicial Conference of review ALJ decisions and the records they we interviewed, draft decisions based the United States promulgate specialized compile, our treatment focuses in particu- on instructions ALJs typically provide procedural rules for social security litiga- lar on what happens in the hearing offices immediately after a hearing. The SSA has tion.5 This proposal was forwarded to the where ALJs work. The following summary pushed ALJs to give more than a simple Chief Justice of the United States and has touches upon just some of the details we thumbs up/thumbs down in their instruc- now gone to the Advisory Committee on believe a federal judge should know. tions; at a minimum, an adequate set of Civil Rules.6 In addition, we understand instructions should include information that the agency is studying our other Hearing Offices reflecting the ALJs determination for each recommendations. We hope that the An appreciation for at least two institu- step of the five-step sequential process for federal judiciary will do the same. tional facts is essential to understanding evaluating a claim. But instructions vary ALJs and the work they do. First, the significantly in style and quality. Several THE PATH OF A DISABILITY CLAIM majority of disability claims never go to decision writers we interviewed reported Many of the federal judges we interviewed ALJs. In FY2015, for example, claimants that they routinely receive extremely acknowledged that they know little about filed 2,756,319 applications for benefits cursory instructions that can omit basic the process that generates the nearly at the initial level, where state Disability information (i.e., the ALJ’s basis for her 20,000 social security cases they see each Determination Services, working with credibility determination).9 year. For this reason, we provide a detailed the agency, decided them. In most parts Like ALJs, decision writers labor under description of the disability claims adjudi- of the country, claimants whose claims heavy workloads. Until recently, decision cation process in the first main chapter of are denied file requests for reconsid- writers were instructed to spend up to four JUDICATURE 67

hours on a decision favorable to a claimant five to 12 cases per day. Unlike the Board important for one key reason. The Appeals and eight hours on an unfavorable deci- of Immigration Appeals, another agency Council will not agree to an RVR unless sion. To save time and to ensure consistent, appellate body handling a large volume the OGC lawyer can couch the ALJ’s error policy-compliant draft decisions, decision of cases, the Appeals Council rarely issues in terms of existing agency policy. The writers insert language particularized for opinions or otherwise steers the elabora- fact that an ALJ’s decision might conflict a specific case into boilerplate generated tion of governing law through precedent. with circuit precedent or a line of district by the “Findings Integrated Template” Its personnel do, however, rely on their court decisions is not enough. (“FIT”), a tool the SSA began to use in review of cases to identify issues for poli- When a federal judge remands a case, 2006. FIT generates templates for various cymaking through other vehicles. it goes back to the Appeals Council, disability decisions. Upon completion, where a specialized division receives it and the draft goes to the ALJ to review. While The Federal Courts issues the actual remand order to the ALJ. ALJs remain responsible for everything The SSA lacks independent litigating Typically, a remand will return to the that goes out under their names, the SSA authority, so the U.S. attorney is nomi- ALJ who rendered the decision in the first expects decision writers to provide drafts nally the government’s lawyer when a case instance. Rarely would the same decision that require little or no editing. moves to federal court. Most of the time, writer also work on the remanded case. lawyers from the SSA’s Office of General In fact, feedback from the federal courts The Appeals Council Counsel (“OGC”) do the heavy lifting on to hearing offices is irregular. The agency If an ALJ denies a claim, a claimant can the merits brief. In many districts, OGC discourages ALJs and decision writers appeal to the Appeals Council, an office in lawyers litigate as “special assistant U.S. from citing or relying upon case law, in an Falls Church, Va., that reviews ALJ deci- attorneys,” or “SAUSAs,” a designation effort to ensure policy-compliant decisions sions from across the country. Upon arrival, that enables them to appear with minimal that are consistent across the country. In a case receives its first and principal merits involvement from the U.S. attorney. OGC some instances, however, the agency will workup from an “analyst,” who is either a lawyers are organized into ten regions, “acquiesce” to a circuit-level decision on staff attorney or a paralegal specialist. The with each region covering litigation in all an aspect of social security law or policy. Appeals Council’s organization is compli- districts within no more than two circuits. An acquiescence ruling, once issued, will cated, but in general and mostly accurate Practices vary within these regions. Some oblige agency personnel who adjudicate terms, each analyst reviews appeals from OGC lawyers specialize in particular claims within the circuit’s boundaries to hearing offices located within two judicial districts, while others litigate in a number follow the precedent.10 circuits. Sometimes aided by a short brief of them. Claimant representation is simi- The agency can but almost never appeals from the claimant, an analyst uses some- larly varied. Some claimant lawyers work a district court decision. Somewhere in thing called the “Appeals Case Analysis in multiple districts and a few nationwide. the neighborhood of 650 social security Tool,” or ACAT, to deconstruct the ALJ’s In larger urban areas, claimant lawyers are appeals make their way to the circuits decision and determine if it is policy more likely to specialize. each year. But the agency files very, very compliant. ACAT asks analysts a series Among the OGC lawyers we inter- few — only one in FY 2014, for exam- of questions about each of the sequential viewed, workload estimates ranged from ple. This reticence stems, at least in part, steps to determine if the Appeals Council four briefs to a dozen briefs due per from the fact that at least seven SSA and should grant review of the ALJ’s decision. month, added to a slate of other duties Department of Justice lawyers, including ACAT also helps analysts prepare short these lawyers handle for the agency. The the Solicitor General of the United States, (half-page to page-and-a-half) “action burden OGC lawyers shoulder keeps many must sign off on any appeal the SSA might documents” that include recommended from working on a case in earnest until want to take. No district judge we inter- dispositions along with supporting anal- several days before the brief’s deadline. viewed could ever recall an appeal from ysis. If an analyst recommends that the This timing may explain the prevalence of a remand or reversal order. Claimants Appeals Council deny review, the case will last-minute extension requests. control the composition of the courts of go either to an Appeals Officer (“AO”) Sometimes OGC lawyers determine appeals’ dockets almost entirely. or to an Administrative Appeals Judge that the ALJ issued an indefensible deci- (“AAJ”) for a final decision. A recommen- sion that eluded an Appeals Council THE NATIONAL REMAND RATE AND dation that the Appeals Council grant remand. In such instances — about 15 WHAT IT MEANS review and remand will go to two AAJs. percent of all cases — the OGC lawyer will The second chapter of our report attempts If hearing office workloads are crushing, file a request for a voluntary remand, or to answer an important question: over- the Appeals Council’s docket is arguably “RVR.” The Appeals Council has to sign all, do the federal courts review agency even more so. Analysts try to prepare off on an RVR, which it does 95 percent decisions too harshly or too leniently? action documents for two cases each day, of the time. While Appeals Council Over the past five years, the federal courts and AOs and AAJs decide anywhere from consideration may seem perfunctory, it is have remanded between 40 percent and 4 68 VOL. 101 NO. 3

50 percent of all cases appealed to them. courts’ social security docket. Since 2010, simply, the substantial evidence standard, To some, this remand rate makes little the national ALJ grant rate has dropped aptly described as a “seedless grape,” gives sense in light of the deferential substan- from 70 percent to about 45 percent. This little guidance to judges as they struggle to tial evidence standard of review that dramatic decline may reflect more policy determine exactly how much leeway they governs disability appeals.11 Also, several compliant decision-making, as the agency have when reviewing ALJ decision-mak- officials argued to us, it remains stub- insists, and not some new and unduly harsh ing.16 As two scholars have rightly noted, bornly high even though the agency has threshold for granting disability benefits. “it is difficult to ‘consider’ the evidence undertaken various initiatives to improve Even so, decisions federal judges review contrary to the agency’s finding, which the quality of ALJ decision-making over may not reflect this improved ALJ perfor- is required, without reweighing the the last decade. On the flip side, some mance, because the steep decline in ALJ evidence, which the reviewing court is federal judges believe that SSA adjudica- grant rates means that the size of the pool forbidden from doing.”17 tion malfunctions at a systemic level.12 Is of potentially appealable ALJ decisions has Also, for issues that often trigger a nearly 50 percent national remand rate, increased substantially. Suppose that ALJs remands, a lot of disagreement exists over which significantly exceeds the overall now correctly deny four of every five claims whether they involve alleged errors of fact loss rate for agencies in the federal courts, they would have granted before. Given or law. The difference matters, because a symptom of fundamental agency failure? the total number of cases ALJs must hear, a federal judge owes no deference to the We do not believe that one may reason- the mistaken one-in-five would still cause ALJ’s legal determinations. The Chenery ably draw either lesson from the national the pool of erroneous decisions to expand Doctrine and its relevance to social remand rate. The differences between the by thousands. If the private social security security litigation offers an important agency and the federal courts as institu- bar cannot expand its capacity as quickly illustration. The agency frequently argues tions complicate any effort to judge one as the number of erroneous denials rises, that anything in the record that arguably based on its interactions with the other. and if claimant representatives are able to supports the ALJ’s decision, not just the identify cases’ strength with some accuracy, evidence the ALJ actually marshaled to Quality Assurance and Case Selection then the set of cases appealed now can be support her findings, should count in the In 2007, the agency’s Chief Administrative expected to be stronger, on average, than substantial evidence calculus.18 But the Law Judge blamed “most” of the agency’s the set appealed before. Chenery Doctrine limits a court’s review losses in federal court on ALJ decisions that Claimant representatives’ incentives to the rationale the agency actually gave “did not comply with our own policy.”13 can, in fact, be expected to steer them to when it acted. Representing the majority Since then, the agency has implemented the strongest appeals, adding to the like- view,19 the Seventh Circuit has rejected the a number of quality assurance initiatives, lihood that cases that make their way to SSA’s argument and insists that Chenery some of which are quite cutting edge.14 district courts would not reflect improve- precludes reliance on post-hoc rational- It has hired hundreds of new ALJs and ment in ALJ performance. A complicated izations to support an ALJ’s decision.20 overhauled ALJ training; it has developed set of rules regulating attorneys’ fees boils In contrast, some courts, suggesting that various electronic tools, such as FIT and down to a simple relevant point: claim- Chenery does not apply in social security ACAT, to ensure consistent, policy compliant representatives get paid if they win. cases,21 ask “whether the ALJ’s decision is ant decisions; and it has identified ALJs The numbers suggest that this fact does supported by substantial evidence based with aberrational decision patterns for indeed discipline lawyers when they select upon the record taken as a whole,” regard- focused reviews designed to correct their cases. Only about 3 percent of potentially less of what the ALJ actually discusses.22 individualized flaws. Overall ALJ perfor- appealable ALJ decisions — about a half- A nearly 50 percent national remand mance has improved considerably, agency dozen per ALJ per year — ultimately rate can conceivably indicate widespread officials told us, citing a recent 25 percent reach the federal courts, and 85 percent of disregard of the substantial evidence decline in the rate at which the Appeals claimants who lose at the Appeals Council standard only if the claimant-friendly Council remands cases to ALJs, as well as seek no further review. characterizations of these issues are pretex- increased decisional consistency among tual — that is, courts describe flaws as ALJs nationwide. The fact that the court Substantial Evidence Standard of Review legal errors to cloak a searching review of remand rate has remained fairly steady Agency officials also believe the national factual findings — or manifestly wrong. despite all of this, they asserted, confirms remand rate of nearly 50 percent is Some probably are.23 But other issues, that judges review cases too strictly. inconsistent with the supposedly very such as the Chenery Doctrine’s application, We did not have access to data that deferential standard of review and the are complicated and contestable. might have allowed us to determine whether “extremely limited” role it assigns district ALJ performance has in fact improved. But courts reviewing ALJ decisions.15 For a Different Institutions even if it has, this change would not neces- number of reasons, we doubt any such If the nearly 50 percent national remand sarily affect the composition of the federal necessary connection. First, and most rate does not necessarily suggest that JUDICATURE 69

federal judges exceed their authority a wider array of types of impairments, with when deciding appeals, does it confirm more easy cases. These should get weeded that agency adjudication is fundamentally BEFORE MAKING out well before they reach a district court. and deeply flawed? We do not think so. As An ALJ may therefore have a different institutions, federal courts and the agency ANY JUDGMENT “cutpoint” for what she believes qualifies differ considerably, in terms of their goals ABOUT THE as a disability25 — roughly, the line the and resources, their legal commitments, ALJ would draw along a given dimen- and their perspectives. However well or QUALITY OF ALJ sion between disability and no disability poorly the agency adjudicates claims, an DECISION-MAKING, — than a federal judge.26 These different attempt to measure its performance by the A FEDERAL JUDGE cutpoints will give ALJs and federal judges national remand rate is misplaced. institutionally determined understand- On one level, the agency and the NEEDS TO ings of disability that differ. One ALJ who federal courts share the same goal: the ACCOUNT FOR had previously served as an OGC lawyer accurate and efficient implementation described this phenomenon aptly to us. of social security disability policy. But THE VAST GULF What seemed like a “slam dunk” case for their goals diverge on another level. ALJs BETWEEN THE a remand in district court changed when should strive for quality decision-making, she became an ALJ. “If federal judges saw but they also must meet quantity goals. RESOURCES SHE more of what ALJs grant,” this ALJ told us, The agency is rightly concerned with AND THE ALJ “they would appreciate why a case seems adjudication unjustly delayed, and it has more borderline to an ALJ.” endured constant scrutiny for its claims CAN INVEST IN A Other institutional differences also backlog. The importance of production SINGLE DECISION. matter and confound any attempt to judge targets gets underscored by “How MI ALJ competence based on the national Doing,” a website that tells each ALJ how remand rate. The government lacks repre- her rate of decision-making compares to sentation at the hearing office level, for other ALJs in the same hearing office, tation. For this reason, and because of the example. ALJs must probe for weaknesses the same region, and nationally. For the administrative complexity of accounting in the claimant’s case, and may therefore most part, federal judges face much more for district court nuances when drafting develop a skeptical eye that federal judges, modest pressures to generate social secu- and revising decisions, the agency instructs benefiting from OGC lawyers’ defense of rity decisions quickly, and the sort of peer ALJs and decision writers “not to consider ALJ decisions, may not have. Factors like comparison that How MI Doing gives any district court decisions” as sources of these may produce a high national remand ALJs is unheard of. legal guidance.24 The agency may acqui- rate that has as much to do with contrasts A resource imbalance deepens this esce in a circuit decision, but most circuit between two different institutions as it institutional difference. A claim that gets decisions do not trigger the acquiescence does with deficits in agency performance. denied at the hearing office level will process, and it takes time when it does go Unless one could say with confidence that likely command no more than 11 hours of forward. In contrast, district courts must one institution’s commitments, goals, and ALJ and decision writer time from start to follow circuit precedent, and district- perspectives are normatively inferior to finish. Federal judges we interviewed esti- level case law will often have persuasive the other’s, judgments about the remand mated that they and their clerks spent a force. These different commitments surely rate, viewed statically, are hard to draw. good deal more time on each case. As one generate remands, but not ones necessarily ALJ explained to us, an ALJ adjudicating due to dysfunction in agency adjudica- VARIATIONS IN DISTRICT COURT 40 to 50 cases per month and a district tion. An ALJ could protect a decision from REMAND RATES judge and her clerk “picking apart a case remand if she carefully followed trends in While the national remand rate yields for a week” have fundamentally different district-level case law, but doing so would little useful information about the strin- jobs. Before making any judgment about thwart her institutional commitment to gency of judicial review or the success of the quality of ALJ decision-making, a the agency’s consistent administration of a agency adjudication, the stark disparities federal judge needs to account for the vast national program. among district-level remand rates have gulf between the resources she and the Finally, their different vantage points more instructional value. Institutional ALJ can invest in a single decision. give ALJs and federal judges very different factors that might be expected to produce Another institutional difference perspectives on claims. ALJs handle a much an irreducible core of court remands do involves legal commitments. The agency larger sample of cases than federal judges, not vary from one district to the next. Yet has to administer a national program and and ALJs get their cases earlier in the adju- outcomes in social security appeals differ is committed to its consistent implemen- dication process. Presumably the ALJ sees strikingly. From 2010-2013, for example, 4 70 VOL. 101 NO. 3

the Eastern District of Arkansas remanded to a striking degree, we found that Regional Differences in the Quality of Agency 20.8 percent of all appeals, while the judges within a district tend to march Decision-Making? Southern District of New York remanded in step with one another in social Our labor market findings prompted 76.0 percent.27 Why do claimants in security cases. There were only 21 another hypothesis. In theory, regional Albany (53.1 percent remand rate) win judges — out of the 1,300 in our data differences in labor market conditions much less often than claimants in Brooklyn — who single-handedly moved their should not alter the makeup of district (71.9 percent)? Should Pasadena claimants districts’ remand rates by five percent- courts’ social security dockets. Claims pass (50.6 percent) prevail more often than their age points or more. And 81 percent through four layers of review within the counterparts in Fresno (37.6 percent)? of all judges had remand rates within agency. At each step, the agency’s policy Outcome consistency, or the notion one percentage point of the average is to measure claims against a single that like cases ought to be treated alike, for other judges in their district. national standard, with some variation is an important value that any system here and there prompted by the agency’s of adjudication ought to serve. ALJs • We did not find any relationship acquiescence to circuit case law. If this and others have attracted criticism for between the quantity of decisions a review worked perfectly nationwide, it perceived failures to honor this value.28 hearing office generates and the like- should eliminate regional differences in Do federal judges deserve similar criti- lihood of a remand from the district claim quality generated by labor market cism? Our report’s third major chapter to which that hearing office’s deci- variation by the time the Appeals Council tackles this question. sions are likely appealed. finished its review of claims. Labor market variation would have no impact on the Explanations for District-Level Variations • In some districts, district judges quality composition of cases left for claim- Using administrative data provided by the handle all social security cases. In ants to file with the federal courts. agency and additional information from others, magistrate judges shoulder Our intuition, however, is that inter- federal court docket reports, we tested a the task. In still others both types nal agency review of claims is unlikely number of hypotheses that might explain of judges work on these cases. Such to be uniform across the country. Some why district-level remand rates vary as sig- differences do not explain district- hearing offices probably generate better nificantly as they do. Our findings include level variations. decisions than others. Analysts in one the following, among others: division of the Appeals Council might • We hypothesized that, in districts review appeals slightly differently than • Not surprisingly, circuit boundar- with strong labor markets, fewer others. If we are right, regional differ- ies explain a good deal — about 45 people who could work opt to pursue ences in the quality of inputs for district percent — of district-level variation benefits instead. If so, their self-se- court decision-making could exist and in remand rates. Contrasting prece- lection out of the pool of claimants contribute to district-wide impressions dent that districts must follow, as well might improve the general strength federal judges share of ALJ decisions. as “softer” influences like the tone a of claims that do get filed. The agency If Pasadena ALJs happen to generate circuit sets,29 apparently matter quite would be able to decide such claims weaker decisions on average than their a lot to outcomes in district courts. more easily, leaving fewer weak colleagues in San Jose, for instance, and agency decisions for federal courts if the Appeals Council remands decisions • Districts with unusually high social to vacate. Our data supported this from the two hearing offices at about security caseloads do not appear to supposition. Increases in the employ- the same rate, then a potential appeal to manage their dockets by remanding ment-to-population ratio within a the Central District of California from a cases at notably low or notably high district four years before the year of Pasadena ALJ will be stronger on average rates. Likewise, overall caseloads do the district court’s decision are associ- than an appeal to the Northern District not have much of an association with ated with a substantial decline in the of California from a San Jose ALJ. decision patterns in social security remand rate. (This estimate is statis- If pools of appeals from various cases. A move from 350 cases pending tically significant at conventional hearing offices differ in composition per judgeship to roughly 550 is asso- levels, but it is imprecise. Estimates across districts, then federal judges ciated with an increase in the remand for the employment-to-population in one district would review a differ- rate of only 0.5 percentage points. ratio in other years — three, two, and ent body of ALJ decisions than federal one year before the decision — were judges in a second district, even if the • Several agency officials we inter- statistically insignificant but sizable districts are within the same circuit. viewed faulted individual judges with in magnitude, with mixed signs.) This phenomenon could help determine idiosyncratic views for a district’s district-specific judicial attitudes toward particularly high remand rate. But the quality of agency adjudication. This JUDICATURE 71

story could at least partially explain why sion-making from problematic hearing variation in remand rates does not seem offices, and federal judges in high remand to be driven by individual judges’ idio- DISTRICT COURTS districts may in fact be reviewing poorer syncratic approaches to social security quality decisions on average. Second, our appeals, but does vary in a manner not FUNCTION AS finding that judges within a district tend totally explained by circuit boundaries. COURTS OF APPEALS to march in lockstep gestures at the exis- We could not thoroughly test this idea tence of district-wide attitudes toward with the data available to us. An extensive FOR SOCIAL SECURITY social security cases. A common experi- qualitative investigation of three districts, CLAIMANTS. THE ence judges within a district have with however, strengthened our conviction that FEDERAL RULES OF ALJ opinions of routinely high or low this hypothesis about uneven agency deci- quality may explain, at least partially, why sion-making merits further investigation. CIVIL PROCEDURE, these attitudes exist and why they vary. It We selected three districts — one with an DESIGNED FOR also might explain why a district’s remand unusually high remand rate and one with rate remains consistent over time, as we an unusually low one, as well as a district LITIGATION IN THE also determined. Once an attitude forms, with a rate close to the median — and FIRST INSTANCE, it may resist change, and it may exagger- conducted an extensive array of interviews ate or amplify actual differences in the with federal judges in those districts and DO NOT WORK strength of appeals. Federal judges used to OGC lawyers who litigate there. We also WELL FOR THESE uneven ALJ decisions might well search interviewed ALJs and decision writers in all the more for errors that confirm their hearing offices that generate many of the CASES. DISTRICTS background impressions. Conversely, a appeals to each district. AND EVEN INDI- judge used to high-quality decisions may These conversations revealed obvious VIDUAL JUDGES give a weaker one the benefit of the doubt. differences. ALJs and decision writers in the hearing office within the low remand HAVE THEREFORE PROCEDURAL RULES district described their work environ- FORGED THEIR OWN Much of what ails disability benefits adju- ment very favorably. They reported good dication and litigation resists an obvious morale, stable leadership, and a construc- IDIOSYNCRATIC cure. But one problem is readily avoid- tive relationship with federal judges. ALJs WORKAROUNDS. able. The procedural governance of social used an organized process to derive feed- security litigation in the federal courts is back from district court decision-making. chaotic. District courts function as courts The federal judges in the low-remand of appeals for social security claimants. The district gave the agency mixed reviews, Federal Rules of Civil Procedure, designed but only one strongly criticized the qual- Common sense dictates that the for litigation in the first instance, do not ity of ALJ decisions. health of a working environment can have work well for these cases. Districts and even The average remand district came off an important impact on the quality of individual judges have therefore forged as just that — average in every respect. work performed. If this is so, and if we did their own idiosyncratic workarounds. A In contrast, a deep, palpable strain of not by coincidence stumble upon the only kaleidoscopic proliferation of procedures discontent ran through our interviews hearing offices that contrast sharply, then is the result, even though social security with high remand district personnel. the average strength of an appeal might litigation involves claims governed by a ALJs described unstable, volatile hear- differ from one hearing office to the next. national body of law and emerges from a ing office management and poor-quality Interviews are no substitute for quan- national administrative process. decision writing. They expressed nega- titative analysis. Our sense that agency Although we could not quantify the tive attitudes toward judicial review; as decision-making of uneven quality costs of these procedural differences, our one ALJ insisted, the district court was produces inputs of uneven quality for interviews left us convinced that they an “anti-ALJ bench.” The hearing offices judicial review needs further study. But create needless complexities. Lawyers with within the district lack a structured at least two empirical findings point in a regional or national practice constantly process for learning from district court the hypothesis’s direction. First, recent have to change how they litigate other- decisions. Most of the federal judges we research suggests that the Appeals Council wise identical claims based on a district’s interviewed described what one called an does not adjust its review to account or even an individual judge’s particular attitude of “significant distrust” toward for differences in ALJ decision-mak- procedural preferences. The differences agency decision-making. ALJs have “very ing.30 If so, the Appeals Council may not are often picayune — one district allows little credibility,” a federal judge told us. successfully filter out poor quality deci- 20-page briefs, another 18 — and thus 4 72 VOL. 101 NO. 3

involve little conceivable benefit. For able end, so that a brief will not exceed 18 lawyers with a high-volume practice, a pages instead of 20, or so that an argument category that includes all OGC lawyers THE fits in a joint submission instead of an ordi- and many claimant representatives, the nary merits brief. costs of procedural differences, in terms ADMINISTRATIVE of redundant effort and unintended errors, CONFERENCE SUGGESTED REFORMS can mount quickly. We concluded our report with a number This crazy quilt of procedures is knit- HAS ADOPTED of suggested reforms, offered to make ted together from a dizzying array of local ONE OF OUR social security litigation more efficient, rules, district-wide scheduling orders, SUGGESTIONS, to improve agency-court communication, and individual case-management orders. and to help the agency improve its stand- What the parties file to litigate the merits A PROPOSAL THAT ing in the federal courts. What follows are of an appeal illustrates the problem. Some THE JUDICIAL our suggestions premised on an assump- magistrate judges in the Central District tion that Congress will not dramatically of California require a single “joint stip- CONFERENCE OF increase the agency’s budget for hearing ulation,” filed by the parties together, in THE UNITED STATES offices and ALJs. lieu of dueling merits briefs. Scheduling PROMULGATE A SET orders for these judges prescribe in Specialized Procedural Rules detail the content of these joint stipula- OF SPECIALIZED After extensive review and input from a tions, designed to ensure that the parties PROCEDURAL variety of stakeholders, the Administrative respond directly to each other’s conten- Conference has adopted one of our tions. Other Central District of California RULES FOR suggestions, a proposal that the Judicial judges follow other districts’ lead and SOCIAL SECURITY Conference of the United States promul- require motions for summary judgment. gate a set of specialized procedural rules In still other districts, local rules make LITIGATION. for social security litigation.35 The Rules a motion for summary judgment “not Enabling Act delegates authority to the appropriate.”31 Some districts eschew the U.S. Supreme Court, acting through the Federal Rules altogether and, in general Judicial Conference, to promulgate rules orders, simply require the parties to file districts or before different judges within of practice and procedure. Although merits briefs as if they were litigating in the same district may constantly have these rules are typically trans-substan- courts of appeals.32 The District of New to toggle back and forth among various tive, the Rules Enabling Act permits a set Hampshire has devised a bespoke filing for requirements for the same task. of rules developed for a particular category social security cases — a “motion for order This procedural clutter is more than of litigation when that litigation’s unique reversing decision of the Commissioner or a mere annoyance, as an example illus- procedural needs warrant them.36 The for other relief.”33 trates. Cases routinely raise the same sheer number of social security cases in Rules and orders conflict over a host issues, so rather than reinvent the wheel, the federal courts, their awkward fit with of other issues as well, including page lawyers often borrow text from one brief for the Federal Rules of Civil Procedure, limits for briefs, the agency’s obligation another. By testing arguments in a number and the needless inefficiencies that the to file an answer, the order in which the of cases and redeploying them, lawyers can proliferation of different procedural parties file their merits briefs, and so on. raise the quality of their representation. workarounds create justify this special- This sort of balkanized regulation by local Moreover, these practices lower the cost of ized regime of procedural governance. rule, district-wide general order, and case social security litigation, both for claim- As of this writing, the Administrative management order has attracted criti- ants and the government. OGC lawyers Conference’s recommendation has gone cism from some of the most prominent rarely spend more than three days writing before the Advisory Committee on Civil of procedural commentators.34 This arti- a merits brief, and claimant representatives Rules for consideration. cle’s length does not permit a complete must work on a tight budget. Shortcuts rehearsal of their many objections, but one save invaluable time. But procedural vari- Consistency in Social Security Law and Policy finds particular purchase for social security ation makes economizing difficult, forcing Other reforms would also improve social litigation. Local rules and the like create lawyers to refashion even a successful argu- security litigation considerably. The “legal clutter,” or “background noise” of ment to fit a judge’s procedural parameters. agency could make better use of tools at procedural variation that consumes time Not only does such redundant drafting its disposal to reduce inter-circuit incon- and distracts lawyers from focusing on the take time, it also may compromise the sistencies in approaches to various issues merits. A lawyer practicing in different quality of advocacy. And all to a question- of social security law, and to reduce diver- JUDICATURE 73

gence between its view of governing law Improving Communication use of feedback from district courts. The and policy and what prevails in the federal Another suggested reform responds to our low remand rate district we studied had courts. For instance, the agency could sense that federal judges know little about formalized a process whereby it mined appeal more district court decisions. An internal agency practices, and to a concern district court decisions for useful guid- idiosyncratic treatment of an issue of social that ALJs receive too little feedback from ance. The agency could try a version of security law might persist in a particular district courts. A lack of information flow this process at more hearing offices. The district. The agency discourages ALJs and might cause unnecessary confusion. Several agency could also assign the decision others from looking to district court case federal judges we interviewed deprecated writer who drafted the erroneous deci- law, so the gap between the district’s view the boilerplate text they see in ALJ decision the first time around the same case on of the issue and agency policy will remain. sions, for example, without an apparent remand, to enable the decision writer to An appeal to the circuit could correct the understanding that the agency devised learn from federal court review. district’s approach to the issue, or it might this FIT-generated text to encourage more Each of these changes would be help- result in an acquiescence ruling requiring consistent decision-making. Conversely, ful. But we believe that only a dramatic relevant agency personnel to follow the a number of ALJs dismissed the instruc- reduction in ALJ caseloads could permit circuit’s precedent. tional value of court remands, and decision significant, across-the-board improvements The agency almost never appeals writers rarely learn from them. in decision-making quality sufficient from a district court decision, however, We propose that each district form to cause the federal court remand rate to due in large measure to the gauntlet the a social security standing committee plummet. To avoid a spike in the backlog agency must run that ultimately requires to ensure a better flow of information of claims, the size of the ALJ corps would Solicitor General approval before it can between the courts and the agency. Federal have to increase. Ultimately, this may be pursue an appeal. We thus recommend judges could explain their concerns about the most important reform of all. u that Congress give the agency indepen- recurring issues, such as the use of prob- dent litigating authority. Not only would lematic boilerplate. Agency lawyers could this statute relieve U.S. Attorney’s offices explain why the boilerplate remains or JONAH B. of their tangential but confusing role in what steps have been taken to improve it. GELBACH is a social security litigation, but it also would ALJs could explain why record develop- professor of law at remove significant roadblocks that have ment is challenging, and federal judges the University of discouraged the agency from seeking clar- could suggest what might improve the Pennsylvania. His ification in the courts of appeals. situation. Claimant representatives and interests in law teach- Another tool would require a change OGC lawyers could get feedback on ing and scholarship to Appeals Council practice. The Appeals briefing and procedural concerns. OGC include civil proce- Council could select a small number of lawyers could explain the RVR process dure, evidence, statutory interpretation cases out of its voluminous docket for to judges and thereby make sense of last and legislation, law and economics, decision by full-dress opinion, issued minute extension requests that may other- event study methodology, applied statis- after consideration by a panel of adjudi- wise prove confounding. All could discuss tical methodology and econometrics, and cators. These cases would involve issues what local rules and standing orders work applied microeconomics. With Professor that have created inconsistent decisions in and which ones cause problems. Marcus, he has served as a consultant for the federal courts, or ones where prevail- the Administrative Conference of the ing case law conflicts with the agency’s Suggestions for the Agency United States related to Social Security preferred understanding of policy. Such We directed our last several suggestions disability appeals to the federal courts. decisions would receive Chevron deference to the agency itself. Most importantly, DAVID MARCUS from the federal courts, a doctrine designed we suggest that the agency follow up on is a professor of law in part to produce greater uniformity in our hypothesis that some district-level at the University of the judicial interpretation of federal stat- variation in remand rates results from Arizona James E. utes. Were the Appeals Council to act on uneven decision-making by ALJs that the Rogers College of this recommendation, one urged previ- Appeals Council does not smooth out. Law. His teaching ously by the Administrative Conference,37 If our hypothesis proved right, it could and research interests it should craft a process that would give prompt significant changes to Appeals include civil proce- claimant representatives and concerned Council review that could drain some dure and administrative law. He has organizations ample opportunity to of the most flawed ALJ decisions from written extensively on complex litigation participate in any case that might produce the pool of potential court appeals. We and agency adjudication, among other a precedential decision. also suggest that the agency experiment topics. with initiatives designed to make better 74 VOL. 101 NO. 3

1 For previous studies of social security disability liti- 10 More than four dozen acquiescence rulings have been 25 Jonathan Masur, Patent Inflation, 121 Yale L.J. 470, gation in the federal courts, see Harold J. Krent issued. Nine are in effect in the Ninth Circuit. No 483 (2011). & Scott Morris, Inconsistency and Angst in District other circuit has generated more than six. See generally 26 We appreciate that most ALJs and federal judges Court Resolution of Social Security Disability Appeals, https://www.ssa.gov/OP_Home/rulings/ar-toc.html. make their decisions based on a good-faith effort 57 Hastings L.J. 367 (2016); Jerry L. Mashaw 11 E.g., Paul R. Verkuil, An Outcomes Analysis of Scope of to apply the law to their best understandings of the et al., Social Security Hearings and Appeals Review Standards, 44 Wm. & Mary L. Rev. 679, 689 facts. Within the legal regime for disability determi- (1978). Scrutiny of disability claims adjudica- (2002). nations, however, there is room for judgment calls, tion has come from a variety of sources, including 12 E.g., Richard A. Posner, Divergent Paths: The and impressions of claimants and their needs likely Congress, government inspectors general, academic Academy and the Judiciary 152–53 (2016). influence decision-making. commentators, and others. An excellent recent study 13 Letter from Frank A. Cristaudo, Chief Administrative 27 The Middle District of Florida was the median is Harold J. Krent & Scott Morris, Achieving district, with a remand rate of 41.4 percent. Greater Consistency in Social Security Judge, to Colleagues, Dec. 9, 2007, at 3. 28 Disability Adjudication: An Empirical Study 14 E.g., Gerald K. Ray & Jeffrey S. Lubbers, A Harold J. Krent & Scott Morris, Achieving and Suggested Reforms (Apr. 2013). Government Success Story: How Data Analysis by the Greater Consistency in Social Security Disability Adjudication: An Empirical Study 2 Social Security Appeals Council (with a Push from “Claimant representative” is a term used to refer and Suggested Reforms, April 2013, at 1; Jaya to those who represent social security claimants. A the Administrative Conference of the United States) is Ramji-Nogales et al., Refugee Roulette: Disparities in claimant representative does not have to be an attor- Transforming Social Security Disability Adjudication, 83 Geo. Wash. L. Rev. 1575 (2015). Asylum Adjudication, 60 Stan. L. Rev. 295, 296 ney to represent someone in agency proceedings. See (2007). 20 C.F.R. §§ 404.1705 and 416.1505. All of the 15 Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). 29 Krent & Morris, note 1 claimant representatives we interviewed, however, 16 Ernest Gellhorn & Glen O. Robinson, Perspectives on Inconsistency and Angst, supra at 396. litigate in the federal courts and are attorneys. Administrative Law, 75 Colum. L. Rev. 771, 780 30 3 Jonah Gelbach & David Marcus, A Study of (1975). David Hausman, Consistency and Administrative July 21, 2016, at 48 (Draft, on file with Social Security Litigation in the Federal 17 Richard E. Levy & Robert L. Glicksman, Agency- Review, authors). Courts, Final Report (July 28, 2016). Specific Precedents, 89 Tex. L. Rev. 499, 544 (2011). 31 S.D. Iowa Local R. 56(i); E.D. Mo. Local R. 4 To remain brief, this article does not include exten- 18 E.g., Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. see also sive citations or all of the support we marshal in our 2010). 56-9.02. 32 Gen. Order No. 18, In the Matter of: Northern report. The report contains this information and 19 Bryan C. Bond, Note, Taking it on the Chenery: Should E.g., District Order Directing Filing of Answer, much more detail. the Principles of Chenery I Apply in Social Security Administrative Record, Briefs, and Providing 5 Special Procedural Rules for Social Security Litigation in Disability Cases?, 86 Notre Dame L. Rev. 2157, for Oral Hearing on Appeal From Social Security District Court, 81 Fed. Reg. 94,312 (Dec. 23, 2016). 2159 & n.11 (2011). Benefits Decision, N.D.N.Y., Sept. 12, 2003, at 1-2. 6 The proposal has been docketed and is also posted 20 Hanson v. Colvin, 760 F.3d 759, 761 (7th Cir. 2014). 33 D.N.H. Local R. 9.1 under the uscourts.gov website’s Federal Rules of 21 E.g., Calvin v. Astrue, Civ. No. 05-0109, 2010 WL 34 Charles Alan Wright, Practice & Procedure, under Docket No. 17-CV-D. 55452, at *14 (M.D. Tenn. Jan. 7, 2010); Rector v. E.g., Foreword, The Malaise 14 Rev. Litig. 1, 11 (1994); We understand that the proposal will be considered Colvin, Civ. No. 14-5017, 2015 WL 1925368, at of Federal Rulemaking, in the future by the Civil Rules Committee. *3-*4 (W.D. Ark. Apr. 28, 2015). Geoffrey Hazard, Undemocratic Legislation, 87 Yale L.J. 1284, 1285 (1978); John P. Frank, Local Rules, 7 In several so-called “prototype” states, claimants 22 Brasseur v. Commissioner of Social Security, Civ. No. 137 U. Pa. L. Rev. 2059, 2060 (1989). cannot request consideration and instead take their 10-1260, 2012 WL 991621, at *6 (W.D. Mich. Feb. 35 claims directly to ALJs. 3, 2012). Special Procedural Rules for Social Security Litigation in District Court, 81 Fed. Reg. 94,312 (Dec. 23, 2016). 8 Social Security Administration, FY2017 Budget 23 Compare Henningsen v. Comm’r of Social Security, 111 F. 36 394 U.S. 286, 300 n.7 (1969). Justification, Table 3.34, available at www.ssa.gov/ Supp. 3d 250, 269 (E.D.N.Y. 2015), with Chichoki E.g., Harris v. Nelson, budget/FY17Files/2017LAE.pdf. v. Astrue, 534 Fed. App’x. 71, 76 (2d Cir. 2013). 37 ACUS Recommendation 87-7, A New Role for the 9 The SSA now uses the term “symptom evaluation” in 24 Memorandum to All Administrative Law Judges Social Security Appeals Council, 1 C.F.R. § 305.87- lieu of “credibility.” Soc. Sec. Ruling 16-3p. and All Senior Attorneys from Debra Rice, Chief 7(1) (1993). Administrative Law Judge, (Jan. 11, 2013), at 2.

DUKE LAW CENTER FOR JUDICIAL STUDIES JOIN US THIS FALL! THE DUKE CONFERENCE AppellateSPECIAL-FOCUS Judges MEETING Technology-Assisted Review Bench-Bar Experiences with the 2015 Discovery Best Practices A2017JE SummitI EducationProportionality Institute Amendments Appellate Judges Education Institute SEPT. 7-8, 2017 cohosted by Duke Law Center for Judicial DECEMBER 8, 2017 ARLINGTON, VA. Studies and the ABA Judicial Division 2017 2–5, NOV. SAN FRANCISCO, CA LONG BEACH, CALIF. BEACH, LONG Visit our new website at judicialstudies.duke.edu for information on these conferences and all our programs! JUDICATURE REDLINES 75 Bullet points, yes. Unnecessary dates, no. Our writing guru, Joseph Kimble, simplifies and adds punch with some fairly quick fixes. He notes: The opinion deals with Defendant’s motion to quash Plaintiff’s notice of deposition. Before the excerpt below, the opinion had already set out the date of Plaintiff’s medical treatment, May 31, 2016, and explained that she alleged unlawful billing practices by Mercy Hospitals and its billing company, MRA. The judge ultimately limited discovery to matters that occurred after Mercy hired MRA. The various items on the left — four of which are omitted to save space — cry out for a list. Bullets work nicely when the items have no rank order. As for the dates, they seriously distract. Original Better Plaintiff served her Rule 30(b)(6) notice on April 24, 2017. . . . Hoops served her Rule 30(b)(6) notice a month ago. It lists 30 The 30 topics listed in the notice relate to: Mercy’s policies and topics related to the following: procedures for billing auto insurance medical payments cover- • Mercy’s policies and procedures — both before and after age, asserting medical liens, and obtaining patient consent December 2013, when Mercy hired MRA — for billing (known as “Consent and Agreement” forms) for patients with auto-insurance medical-payments coverage, asserting health insurance during the periods of December 13, 2013 medical liens, and obtaining patient consent for patients (the date on which Mercy hired MRA) to the present, and for with health insurance; the three-year period prior to December 17, 2013; Mercy’s • Mercy’s billing for Hoops’s medical treatment; billing for Plaintiff’s medical treatment on May 31, 2016; • negotiations between Mercy and MRA before MRA was negotiations between MRA and Mercy prior to December 13, hired; . . . and 2013; . . . [four items omitted]; and complaints received by • complaints that Mercy received after it hired MRA Mercy during the period of December 17, 2013 to May 31, and before Hoops’s treatment date about the billing 2016 regarding the billing practices described above. practices described above. Redlined 1 Hoops 2 a month ago Plaintiff served her Rule 30(b)(6) notice on April 24, 2017. . . . 1. Generally prefer names. The opinion would have said earlier, “The > 3 the following > plaintiff, Cynthia Hoops.” The 30 topics listed in the notice relate to: Mercy’s policies and 2. The date doesn’t matter. 4 > 4 procedures for billing auto-insurance medical-payments cover- 3. Better to set up the list with introductory words. > > 4. Use a hyphen with a phrasal (compound) adjective. age, asserting medical liens, and obtaining patient consent 5. Unnecessary detail. The form is never mentioned again. 5 (known as “Consent and Agreement” forms) for patients with 6. A multiword preposition. These gremlins abound in legal writing. 6 from 7 They can usually be replaced with a one-word preposition. health insurance during the periods of December 13, 2013 (the 7. The opinion seemed inconsistent on the exact day. But it’s proba- when > date on which Mercy hired MRA) to the present, and for the bly not needed at this point anyway.

> 8 before the hiring 8. Another multiword preposition — and one of the most common. three-year period prior to December 17, 2013; Mercy’s billing Always use before. > 1 Hoops’s > 9 for Plaintiff’s medical treatment on May 31, 2016; negotia- 9. Again, the opinion had already identified the treatment date.

> 8 before MRA was hired 10. There are ten dates in the full list. After the one in the first bullet, tions between MRA and Mercy prior to December 13, 2013; I think most of them — and probably all of them — can go. The

> that > received trouble, of course, is that the reader has to keep going back and . . . [four items omitted]; and complaints received by Mercy tying dates to events. > 6 after it hired MRA and before Hoops’s> treatment date during the period of December 17, 2013 to May 31, 2016 11. Strongly prefer on or about to regarding. Imagine a play called Much Ado Regarding Nothing. > > > 11 about > 9 10 regarding the billing practices described above. >

JOSEPH KIMBLE is an emeritus professor at WMU–Cooley Law School. He is senior editor of The Scribes Journal of Legal Writing, the editor of the Plain Language column in the Michigan Bar Journal, and the author of two books and many articles on legal writing. He served as drafting consultant on the projects to restyle the Federal Rules of Civil Procedure and Federal Rules of Evidence. 4 76 BOOK REVIEW VOL. 101 NO. 3 OUT-OF-

“UNWARRANTED.” Few words CONTROL rately and sensibly and without mean as many things to hard- repeatedly making bad law even working judges. “Unwarranted” worse, and can become forces for can mean that an action is “unau- POLICING positive change. thorized,” as in “not permitted” The book is the product or affirmatively “forbidden.” It can Are judges to blame? of a practical scholar’s decades mean that an action is “unjustified,” spent studying policing, the as in inadequately or not explained. Constitution, and the courts, and Or it can be a polite way of saying BY LEE H. ROSENTHAL how they intersect and interact. that an action is just plain dumb. The Jacob D. Fuchsberg Professor Which takes us to Barry Friedman’s of Law and Affiliated Professor of important book about policing, Politics at New York University Unwarranted: Policing Without Permission. with case law, data, and argument. The Law School, Friedman is a recognized The book raises a lot of questions. But judiciary, he says, has done a “perfectly authority on constitutional law, policing, here’s the good news. The book also gives appalling job of one of the chief tasks we criminal procedure, and the federal courts. some concrete and clear answers to those have given them: protecting our basic He is the founding director of NYU Law’s questions and lays out a better framework liberties. . . .” (p. xiii.) The “judiciary Policing Project and the reporter for the going forward. And it is fun to read. Did should be ashamed,” because when “[c] American Law Institute’s Principles of Law: you get that? A book on policing that is so onfronted with situations in which the Policing. He publishes regularly in the well and clearly written that it is enjoyable police have done the most inappropriate nation’s leading academic journals and in to read. Our friends in the academy will and untoward things, too many judges the popular press. forgive a judge for finding it hard to believe simply cannot bring themselves to call In Unwarranted, Friedman lays out a that this book came from an academic. It is foul.” (p. xiv.) Fortunately, Friedman path to revise our framework for think- that approachable, that practical, and that also has specific ideas on how judges can ing about the two universal questions of relevant to what judges do. clarify and simplify the legal issues to be policing. Those questions arise from the Friedman clearly means to emphasize decided, can decide hard cases more accu- government’s monopoly on the use of “unwarranted” in the sense of “unautho- force and surveillance for law enforcement. rized,” as in police searches or seizures What force, and what surveillance, are done without the express advance permis- “warranted,” and when? What amounts sion of a judge’s order based on probable of force, what invasions of privacy, are cause. But he also means to ask us whether permitted, are properly authorized and the various police actions he describes, explained, and are efficacious and wise? usually by recounting actual events He uses the revised frameworks to exam- ranging from the merely stupid to the ine the twin questions in the context of tragic, are affirmatively prohibited, not modern policing’s focus on technology merely unauthorized; unexplained, badly and terrorism. In the process, he unpacks explained, or even hidden; or so ineffec- a series of answers to the two questions. tive as to be, well, stupid. Unwarranted These answers are important to the work was not written just for judges. Far from we all know we need to do. But we have it. It’s meant for judges, to be sure, but collectively shirked the work because it also for all types and levels of legislators is difficult, it can be unpopular, it lacks a and law-enforcement policymakers. It natural constituency, and that all adds up is also meant for anyone involved in or to a lack of political and judicial will. affected by law enforcement. That, as the Unwarranted: Friedman has a clear idea of what needs book makes clear, is everyone. Policing Without Permission to be done. We need to bring the demo- Friedman has specific and trenchant cratic governance that we insist on in criticisms of judges’ failures to help BARRY FRIEDMAN so many other aspects of our lives to the control “unwarranted” police actions. Farrar, Straus and regulation of policing. The problem of Giroux, 2017 He’s blunt, but he backs up his criticisms “policing without permission,” he states at JUDICATURE 77

. . . [N]either reactive policing nor predictive the beginning of the book, is out-of-con- policing has been adequately regulated or made trol policing caused by the failure of the accountable. We have not made meaningful steps executive, legislative, and judicial branches to achieve the proper amount of transparency at all levels to provide clear advance “guidance to policing agencies as to what they and the right mix of guidance and autonomy. are to do (or refrain from doing).” (p. 16.) We have detailed regulations that provide sheriffs, constables, and night watchmen,” cism about whether it was so amorphous clear advance rules for many areas of our who “often lacked the most basic tools to and so all-encompassing as to include lives. As Friedman points out, Florida has do their job. . . .” (p. 35.) Urban police forces everything, including a lot that had little an administrative code that specifies in came from a mid-1800 spike in perceived to do with policing. Community policing detail the classifications for different kinds civic disorder, but these early forces were also had a bleaker side called “order main- of tangerines. California has a code of regu- only loosely modeled on Sir Robert Peel’s tenance policing,” (p. 44.) which tried lation for barbers and barbers’ colleges, and London “bobbies.” The American version to avoid the disorder-breeding-disorder precise rules for the sites of newspaper-dis- of the urban police force was made up of syndrome by cracking down on nuisance- pensing machines in roadside rest areas. “ill-paid” men “given a uniform, club, type offenders, like turnstile jumpers and “So ask yourself,” he challenges us, “which handcuffs, and a whistle, and sent out to squeegee men, and by frequently using is more important: regulating vaginal and patrol for crime.” (p. 36.) The temptations stops-and-frisks. (p. 44.) The lack of anal searches of citizens by the side of the to corruption were large and the incentives trust between the police and the policed road, or specifying the size of newsstands to resist small. Things became so bad that, remained and even worsened. and classifying Sunburst Tangerines?” (p. finally, a group of “do-good New York citi- Two more sets of events increased 16.) The question answers itself. zens appalled by sprawling vice” pressed the seemingly inconsistent lack of trust The goal of “[d]emocratic policing for an investigation that uncovered a “level in the police, and the increased reliance is the idea that the people should take of violence and graft that was breathtak- on the police. One set was the events responsibility for policing, as they do for ing.” (p. 37.) Incompetence and brutality of Sept. 11, 2001. Those events led to the rest of their government, and that were compounded by widespread electoral the focus on trying to predict and deter policing agencies should be responsive to fraud facilitated by the police, who were potential terrorists in advance, to prevent the people’s will. . . . [W]hat democratic beholden to New York City’s infamous them from acting in the first place. That policing requires, at bottom, is that rules Tammany Hall political machine. The focus led to a proliferation of new polic- are in place before policing officials take solution was to separate the police from ing agencies and increases in intrusions, action, that the public has an opportunity the politicians by creating a professional, surveillance, and secrecy. The depth and to participate in the formulation of those autonomous, quasi-military, civil-ser- breadth of the policing-agency sprawl was rules, and that the rules are available for vice-protected, bureaucratic police force. fueled by the exponential growth in new all to see.” (p. 27.) But this independence, a laudable reform technologies that could collect and search Why is this important? “Really in some ways, is one reason that we are information on a scale unimaginable a few protecting our liberty — our security reluctant and unaccustomed to govern or short years ago. The fear of terrorism led from overreaching by the government — restrain the police. It is, Friedman explains, some to shrug in resignation at the seem- means having rules in place that guide “one of the reasons we don’t have demo- ingly inevitable loss of privacy and liberty (and, yes, limit) government, so that it cratic policing.” (p. 38.) in the interests of security and safety. does not react badly, or overreact, when Then came the 1960s, when “it all The second set of events is best things are going wrong.” (p. 25.) Having went south.” In the chaotic times after seen in the series of sad headlines that rules in advance is essential not only to Martin Luther King’s assassination, the appear with each fatally violent encoun- security and liberty, but also to efficacy, 1968 Democratic Convention in Chicago, ter between police and members of the by which Friedman means that policing is the Viet Nam War protests, and campus public, often minorities. Both civilian and done in an effective and efficient way “. . . unrest, “the facade of professional policing police deaths have attracted headlines and most calculated to keep us safe and secure crumbled.” (p. 41.) A rise in crime rates passionate responses. while intruding into our liberty no more and violent protests and demonstrations Given these events, finding better than necessary.” (p. 26.) sparked fear; overzealous police responses answers to the twin questions of force and So how did we get to this state of sparked revulsion. One attempt at reform surveillance, answers not mired in legal largely unregulated, out-of-control polic- that lasted only a short time was an exper- doctrines formulated before policing and its ing? Friedman takes us to the early days iment in “community policing” intended technology tools fundamentally changed, of policing, starting with the American to “restore a lack of trust brought about has taken on a new urgency. Friedman Revolution and the 18th century law-en- by police misconduct.” (p. 41.) That wryly observes that when he first began to forcement model of a “loose collection of experiment folded in the face of skepti- write the book in 2012, no one cared much 4 78 VOL. 101 NO. 3

about policing. (p. 325.) There was little And what about the police them- and the police “got the bad guy.” Judges public discussion. Today, in 2017, it is the selves? Why don’t they follow the common do not see the many cases in which viola- frequent stuff of headlines, newscasts, and model of executive agency rule-making, tions of the exclusionary rule occurred and public outcries, if not debates. Events have by publishing for public comment rules to proved ineffective. (p. 82.) The effect of given the work a spotlight and a momen- govern policy choices? Friedman explains this “biased sample” is that judges often tum that may be cause for optimism. that while most police forces do have allow what the police did in order to avoid But before we get carried away, some internal rules, they are enacted with- releasing a guilty defendant. This in effect Friedman reminds us how badly we have out public input or awareness. And these permits the police to keep using the same failed in the past. We don’t have an encour- internal rules are “haphazard” in covering tactic in subsequent cases, without any aging track record. The shift from reactive many of the most important and difficult information about whether the tactic even policing — finding and punishing those areas, such as the use of informants, consent works in the vast majority of cases. The who have committed crimes — to predic- searches, SWAT teams, or drones. (p. 66.) result is to remove the exclusionary rule as tive policing to prevent the crimes, has in It’s not mainly because drafting rules would a meaningful limit to police action. turn shifted the emphasis to surveillance impose a difficult burden on the many What about money damages against and information-gathering. But neither small police forces among the 15,000-plus police forces? No prettier story. Judicial reactive policing nor predictive policing forces around the country. Some police distaste for punishing police is expressed has been adequately regulated or made forces have rules on different subjects through the immunity doctrines, which accountable. We have not made meaning- that can be used as models, tailored to the are applied to avoid holding police liable. ful steps to achieve the proper amount of specific place. Repeated reinvention of the For example, cases abound in which judges transparency and the right mix of guid- wheel is not required. What is required is refuse to find police officers liable for money ance and autonomy. effective, consistent pressure or incentives damages because there was not a decision So who’s to blame? First up: “legisla- to enact rules that the public has a role in dealing with virtually the exact same facts tures that won’t legislate.” (p. 51.) Why shaping, to address the most intrusive and from an appellate court in the same juris- don’t our democratically elected repre- harmful uses of force and surveillance for diction providing fair notice. (p. 85.) sentatives enact statutes or ordinances and by law enforcement. That’s what has The case law also has developed to or regulations that go beyond broad and been, and still is, lacking. dilute the search-warrant and probable- unhelpful directives to go out and enforce Finally, and most at fault, are the cause requirements. Judges don’t insist the law? Why don’t legislatures enact rules “courts that can’t judge.” (p. 73.) He’s on search warrants even when they could that would help by “telling police officers talking about us. What makes us so bad be obtained. (pp. 117–138.) Friedman and agents how to exercise their incredibly at something so important? First, we exposes significant concerns about the broad discretion,” while recognizing that have a role that is inherently limited. We Supreme Court’s movement away from wide discretion is both “important and decide after the fact whether a partic- requiring warrants and probable cause as bad history, bad law, and really bad policy. (pp. 125–139; 147–154.) We Courts can ask, in every case, whether a particular judges have forgiven police failures to get police action was authorized by an existing rule. warrants and we’ve forgiven the absence of probable cause by substituting a “reason- unavoidable” to policing? (p. 60.) First, the ular set of facts and acts is consistent ableness” standard. (p. 149; Terry v. Ohio, police are powerful and effective lobbyists with the Constitution. But even within 392 U.S. 1 (1968)). You may disagree for resisting regulation. Their “close cous- this limited role, we get a resounding D with how Friedman reads the case law, but ins, prosecutors,” (p. 61.) lend them great minus. D at best. The best evidence of you should hear him out. support. Their shared goal is to let the judicial deficiency? The decisions we’ve Now, to a happier side of the street. police do their jobs with less regulation reached and the results we’ve allowed to There are solutions to be had, solutions and more power. Second, the people most stand and reoccur.Friedman describes how that can help judges. Briefly, here are some. adversely affected by policing are often the direction of court decisions since the First, we’ve been thinking about minorities, less affluent, and usually less 1970s has been to leave the police free to searches and seizures in ways that have capable of effective counter-lobbying. And do what they did and want to do. obscured the purpose of the warrant and finally, the most powerful political pres- The book carefully explicates the case probable-cause requirements and have sure comes from the voting public’s fear law that diluted the exclusionary rule both complicated and diluted their appli- of becoming a crime victim, not a polic- prohibiting the use of illegally obtained cation. Back to first and basic principles. ing victim. The result: Elected officials and evidence in trial; judges often and under- Cause is nothing more than a good reason legislators don’t have incentives to super- standably dislike the rule because they see before the intrusion of a search or a seizure. vise the police. To the contrary. only instances in which the tactics worked Probable cause provides the reason for a JUDICATURE 79

particular search and ensures that an offi- may help make deciding cases both more ifying approach that sounds like it could cer is not arbitrarily or discriminatorily predictable and more accurate. work better than the approaches we use now. singling someone out. A warrant ensures Friedman brings this framework to In addition to bringing a clearer and that the officer’s judgment as to cause is the vexing problem of racial profiling in cleaner framework to how judges can not biased. A warrant is nothing more than stops, searches, and seizures. He does not analyze the constitutionality of police getting approval from, after giving good take an aggressive or hardline position approaches to stops, searches, surveil- reasons to, a neutral third party, a judge. that the Constitution prohibits singling lance, and seizures, there is one more thing These are commonsense ways of thinking out groups for more frequent searches judges can do. Courts can ask, in every about words that get tossed around with or seizures. He does insist, persuasively, case, whether a particular police action little thought about what they in fact mean that the Constitution requires courts to was authorized by an existing rule. If the and why they are important. require that the groups singled out in answer is yes, courts must move to the Friedman continues this common- this fashion deserve that treatment. This constitutional question. But courts usually sense and simpler approach by dividing in turn requires courts to require the skip this first step. If there is only a broad searches into two categories, suspicion-based government to produce evidence that the grant of authority, Friedman urges courts and suspicion-less. The first kind of search problem it is addressing is pervasive in to ask if that is enough to cover what the occurs when the police believe that a that group, as opposed to others. That has police did. If invasive new technologies are particular person, known or unknown, is not been a part of the judiciary’s analysis involved, like drones, that were simply not about to or has committed a specific crime, of profiling issues. Instead, the analysis in existence when a broad grant of legis- and the police are trying to learn the facts has been unsatisfactory and complicated, lative authority was drafted, courts can needed to put the perpetrator away. That and difficult to apply. Again, you may plausibly require the government to get kind of search is largely reactive. When not be persuaded, but the arguments that specific legislative authorization before the police search in reaction to informa- deserve consideration. allowing the police action. In this fashion, tion that makes them suspect a person of a The last section of the book applies courts at least invite, and at best insist on, particular crime, the Fourth Amendment these frameworks, this back-to-first-prin- specific legislative authorization for intru- tells us what is needed: probable cause and ciples approach, to modern policing and sive police actions. To make this work, a warrant. Here, technology is on the side its focus on preventing terrorist acts. The Friedman pleads with judges to narrowly of requiring warrants more often, because focus here is on technology, on surveil- construe existing legislative authority if it electronic transmission of information has lance, on huge government databases, and does not speak clearly and directly to the made it much easier and faster for police on privacy intrusions. There is a wealth type of police action at issue. By taking officers in the field to get a warrant. of information about the “new” technol- this approach, courts can facilitate what When, as is increasingly the case, the ogies that are out there and what they’ve Friedman believes is critical: bringing search is suspicion-less, a different set of done, and hints about what artificial-intel- democratic governance to policing. protections kick in. We’ve been subjected ligence innovations might bring us in the This book cannot, and does not, do to suspicion-less searches if we’ve gone near and far futures. Friedman takes on the justice to much of what judges must deal through an airport recently, or been profound disconnect between the modern with. There’s relatively little on the use of stopped at a roadblock or checkpoint. internet information age and the doctrine force as opposed to searches and surveil- These searches are intended to prevent that disclosing information to a third party lance. The run-of-the-mill cases many criminal activity from occurring in the waives any privacy right in that informa- of us handle are the swearing-match first place, by making it harder for terror- tion. When all our information — all of excessive-force claims, often brought by ists to endanger airplanes, or for human or it — is stored in a cloud that is not ours, unrepresented plaintiffs. Friedman doesn’t drug smugglers to carry or deliver their the third-party waiver doctrine becomes offer much here. But he does offer a lot that contraband. These searches also require nonsensical. But there it stands. all of us — judges, lawyers, and all people protections and rules to ensure that they Here, too, Friedman sets out the living in this country — need to think are not arbitrary or discriminatory. What beginnings of possible solutions. When about more, and better. At bottom, not are those protections? A suspicion-less the government collects data in bulk in a reading this book is unwarranted. u search must be governed by rules that suspicion-less search, that is fine, as long make it universal (think TSA screen- as it is authorized in advance by law and LEE H. ing) or truly random (think of the times everyone’s data is collected in a nondiscrim- ROSENTHAL is the you’ve been subjected to a more intensive inatory way. If the government accesses Chief Judge of the TSA search because the random-selection specific data it has collected because of a United States District buzzer buzzed for you). These two catego- suspicion that a particular crime has been Court for the Southern ries are a helpful way of thinking about or is about to be committed, that requires District of Texas. the Fourth Amendment. The framework probable cause and a warrant. Again, a clar- 80 LASTLY VOL. 101 NO. 3 Keeping the balance through changing tides ATTORNEY GENERAL JEFF SESSIONS charging decision did recently directed federal prosecutors to little more than set the “charge and pursue the most serious, read- maximum sentence a ily provable offense” against a defendant. judge could impose. Under This directive is largely consistent with the guidelines, a charging the charging policy under former Attorney decision determined the General John Ashcroft, but represents a mandatory guideline range. significant departure from the charging The SRA shifted the policy articulated by former Attorney balance of power. Judges General Eric Holder, which allowed for had much less authority and much greater flexibility at the U.S. Attorney Congress and prosecutors had AWARENESS OF EACH level in charging and plea bargaining. much more. When the guide- BRANCH’S ROLE IN THE The Sessions directive caused some lines became discretionary, SYSTEM WILL HELP US ALL furrowed brows in the defense and judi- the balance of power shifted PRODUCE JUST RESULTS. cial communities. How will the new again, with judges regaining policy affect the administration of justice more discretion in sentencing. However, client, irrespective of the interests of other in federal courts? How will it affect mandatory minimum sentences and clients. The Sessions Memo emphasizes justice systemically? enhancements — really mandatory guide- consistency, a hallmark of fairness. But, Many things contribute to a just lines on steroids — remain. In applicable it may give a prosecutor pause when a system, but I believe one major compo- cases, they affect the system’s balance more charging decision triggers a minimum nent is when each branch of government than the guidelines did. And the Sessions sentence. The prosecutor is an advocate, exercises its role while acknowledging it Memo now directs they be charged and not an impartial referee. The executive’s is part of a tripartite system and respect- pursued unless the prosecutor provides role changes dramatically when a mini- ing the roles of the other two branches. reasons for not doing so that are docu- mum mandatory crime is charged. The Sentencing Reform Act of 1984 mented and approved by a supervisor. Justice is like beauty: It is desirable, but (SRA) created a mandatory guidelines Congress passed the mandatory mini- in the eye of the beholder. Justice to one sentencing system, replacing a system mum statutes in order to combat violent may be injustice to another, often because in which judges had virtually absolute and drug crimes — a policy decision of position in the system and political sentencing discretion. The guidelines within its purview. But, in passing those philosophy. If each branch of government system was designed in part to eliminate laws, Congress assumed some of the judge’s considers its place in the system relative “unwarranted disparity.” Too often, a defen- role in choosing how to sentence an indi- to the other two, the system will be more dant’s sentence was determined by which vidual, provided the executive charges just. Congress should realize that justice judge’s courtroom he was in. Inconsistent under a mandatory minimum statute. is individual to a degree, and a neutral charging and plea bargaining policies Justice should not depend on which judge is best positioned to apply that. among U.S. Attorneys Offices also contrib- prosecutor draws a case. Neither should Judges should acknowledge they are part uted to this “unwarranted disparity.” it depend on which judge sentences a of a system, and discretion does not begin Opponents of the SRA thought defendant. In the 1960s and 1970s in and end at a particular courtroom door. Congress overstepped its role in the tripar- the Northern District of California, every Prosecutors in our system are advocates, tite system by prejudging how a defen- judge but one gave draft-card burners and as advocates must realize that we dant — yet to be identified, much less probation; one judge gave the maximum are in a conflicted position mandating a convicted — should be sentenced and by sentence every time. No matter how you sentence. Thoughtful awareness of each limiting a judge’s discretion to consider define justice, that is unjust, unless you branch’s role in the system will help us the defendant’s individual characteristics think judicial independence trumps fair- all produce just results, no matter what in sentencing. Proponents thought that a ness. I do not. policy is in force. more rigid system would help restrain a Prosecutorial decisions should be influ- judiciary that had too frequently exalted enced to some degree by prior decisions as judicial independence over the judge’s well as future decisions. Consistency is a — STEWART WALZ is an assistant U.S. role in the system. major component of justice. Prosecutors do Attorney for the District of Utah. The views The role of prosecutor also changed not represent a private litigant with a duty expressed here do not represent the views of the under the SRA. Before the guidelines, a only to the best interests of the current U.S. Attorney Office or the Department of Justice. Thank you TO OUR GENEROUS SPONSORS

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