From Ben Grunwald, Strategic Publication, 92 Tul. L. Rev. 745 (2018):
Under the standard account of judicial behavior, when a panel of appellate court judges cannot agree on the outcome of a case, the panel has two options. First, it can publish a divided decision with a majority opinion and a dissent. Panels usually do not take this route because a dissent dramatically increases the probability of reversal. The second and more common option is for the panel to bargain and compromise over the reasoning of the decision and then publish a unanimous opinion.
This Article argues that a divided panel has a third option: strategic publication. The panel can choose not to publish any opinion at all and thus sap its decision of precedential weight and insulate it from further scrutiny by higher courts. This Article also reports the results of a novel empirical analysis of case-level data on published and unpublished decisions in one federal circuit court. While it finds little empirical evidence that majority-Democrat panels in the sample engage in strategic publication, it finds evidence that majority-Republican panels do. The Article concludes by offering several policy proposals to diminish strategic publication by separating the publication decision from judicial negotiations over the merits.
From Clifford Carrubba et al., Who Controls the Content of Supreme Court Opinions? 56 American Journal of Political Science ___ (2012?):
Conventional arguments identify either the median justice or the opinion author as the most influential justices in shaping the content of Supreme Court opinions. We develop a model of judicial decision making that suggests that opinions are likely to reflect the views of the median justice in the majority coalition. This result derives from two features of judicial decision making that have received little attention in previous models. The first is that in deciding a case, justices must resolve a concrete dispute, and that they may have preferences over which party wins the specific case confronting them. The second is that justices who are dissatisfied with an opinion are free to write concurrences (and dissents). We demonstrate that both features undermine the bargaining power of the Court’s median and shift influence towards the coalition median. An empirical analysis of concurrence behavior provides significant support for the model.
From the abstract for A Rose by Any Other Name: Understanding Judicial Decisions that Do Not Cite Precedent, 15 Journal of Empirical Legal Studies 563 (2018) by Kawin Ethayarajh, Andrew James Green and Albert Yoon:
In common-law countries, legal precedent serves as a foundation of judicial opinions. Judges cite precedent to explain their decision, and it is this use of precedent that threads one decision to another. The Supreme Court in India stands in contrast to its counterparts in other countries in that it annually decides not dozens, but thousands, of cases. Perhaps unsurprisingly, nearly half the Court’s decisions do not cite any precedent at all. This article examines this phenomenon, specifically how it affects judges’ commitment to the common law, in substance if not in form. Examining every Court decision for the period 1950–2010, we textually analyze the opinions using machine learning to determine what connection, if any, exists between cases. We find that it is possible to accurately model how the Court cites to existing precedent and that even for decisions without any citations, there is almost always at least one prior decision the Court could have cited. Our finding suggest that time and resource demands are primarily responsible for the failure to cite relevant precedent, but that the Court acts efficiently, given the constraints placed on it, in deciding in which decisions to include precedent. This research, however, leaves unanswered whether the Court provides sufficient guidance to lower courts.
“Most analyses of this topic, including a lengthy opinion by the Justice Department’s Office of Legal Counsel in 2000, overlook a Supreme Court case in which five Justices apparently favored the idea that the President can be subject to criminal prosecution. (The other four Justices did not exactly disagree either.),” wrote Ryan Goodman in his analysis of Nixon v. Fitzgerald, 457 U.S. 731 (1982). For more, see Goodman’s analysis here. — Joe
From the abstract for Elizabeth Earle Beske’s Rethinking the Nonprecedential Opinion, UCLA Law Review, Vol. 65, 2018:
Nearly 90 percent of the opinions issued by the federal courts of appeal are unpublished and lack precedential effect, and where these cases lay out new legal rules, this phenomenon cannot be reconciled with the Supreme Court’s settled retroactivity jurisprudence. Harper v. Virginia Board of Taxation and Griffith v. Kentucky, both moored in Article III, require that any case’s new rule apply not only to future litigants but also to those whose cases are pending. A nonprecedential case by definition has no application beyond its litigants. This raises no problem where a case adds nothing new, as other litigants already have access to the precedents on which it relies. However, the majority of circuits allow nonprecedential opinions to break new ground, and these nonprecedential opinions frequently make law, command dissents, create or deepen circuit splits, and go up on certiorari to the Supreme Court.
Many commentators have debated the practical and legal implications of nonprecedential opinions, but this Article is the first to identify the inconsistency between groundbreaking nonprecedential opinions and settled principles of adjudicative retroactivity. This Article concludes that permitting nonprecedential opinions as an exception to adjudicative retroactivity threatens to drain Harper and Griffith of all but symbolic significance. Although a handful of circuits have guidelines for when an opinion must have precedential effect, this Article proposes use of the “new rule” construct, already familiar and well-developed in the context of habeas corpus and official immunity, as a mechanism for differentiating those opinions that may be designated nonprecedential from those that—under settled doctrine—may not.
From the abstract of Nina Varsava’s The Citeable Opinion: A Quantitative Analysis of the Style and Impact of Judicial Decisions (July 22, 2018):
Many commentators surmise a relationship between the style of judicial opinions and their legal impact or precedential power. However, little empirical work has been done to explore this relationship quantitatively. If writing style matters legally we should expect elements of style to vary systematically with a given decision’s uptake in subsequent decisions. Studying the relationship between style and citations can put that hypothesis to the test, and can help illuminate how and to what extent style matters to the law. I employ methods of computational textual analysis and natural language processing to uncover patterns between legal impact and stylistic features such as certainty, informality, and suspense. I derived my stylistic features of interest from the literature on judicial writing and measured their frequency or density in a sample of federal appellate opinions. I then investigated the relationship between these features and the number of cases that cite the decision. My results, generated from a series of regression analyses, suggest that readily measurable elements of style have strong associations with a decision’s precedential power. Qualities such as deference, lengthiness, and hesitancy are all positively associated with citation counts, whereas qualities such as certainty, suspense, and informality are negatively associated with citations. In general, the more citeable opinions are those that are relatively dull and legalistic in terms of style.
H/T beSpacific. — Joe
The Essential Judge Brett M. Kavanaugh Reader: What Cases Should You Read? (LSB10177, July 25, 2018) highlights many of Judge Kavanaugh’s judicial opinions that have received the greatest degree of attention from legal observers. — Joe
Two excerpts from Judicial Opinions of Judge Brett M. Kavanaugh (R45269, July 23, 2018):
Arguably, Judge Kavanaugh’s authored opinions provide the greatest insight into the nominee’s judicial approach, as a judge’s vote or decision to join an opinion authored by a colleague may not necessarily represent full agreement with a colleague’s views. This report provides a tabular listing of 306 cases in which Judge Kavanaugh authored a majority, concurring, or dissenting opinion.
While this report identifies and briefly describes judicial opinions authored by Judge Kavanaugh during his time on the federal court, it does not analyze the implications of his judicial opinions or suggest how he might approach legal issues if appointed to the Supreme Court. Those matters will be discussed in a forthcoming CRS report.
H/T beSpacific. — Joe
Trump’s executive order ending the separation of refugee families detained in the US may run afoul of the Flores settlement because Flores requires the federal government to do two things: to place children with a close relative or family friend “without unnecessary delay,” rather than keeping them in custody; and to keep immigrant children who are in custody in the “least restrictive conditions” possible. Here’s the text of Flores v. Meese – Stipulated Settlement Agreement Plus Extension of Settlement.
Here’s links to two recent CRS reports:
Unaccompanied Alien Children: An Overview (R43599, Jan. 18, 2017)
Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions (R43623, Jan. 27, 2016)
“The data make clear that headnote assignments are far from scientific. In fact, they appear somewhat arbitrary, at least based on the discrepancies described in this article. Further study is warranted,” wrote Peter A. Hook and Kurt R. Mattson in Surprising Differences: An Empirical Analysis of LexisNexis and West Headnotes in the Written Opinions of the 2009 Supreme Court Term, 109 Law. Libr. J. 557 (2017). Here’s the abstract:
The number of headnotes assigned by LexisNexis and West are empirically examined for opinions of the 2009 Supreme Court Term. Additionally, Citizens United is examined in detail to determine the overlap of headnote-worthy language. Discrepancies in the number of headnotes assigned and disagreement as to headnote-worthy language call into question the rigor with which headnotes are created.
H/T to Legal Skills Prof Blog. Interesting. — Joe
From the US District Court for the Southern District of New York’s holding in Knight First Amendment Institute v. Trump, 17-Civ-5205, May 23, 2018:
Turning to the merits of plaintiffs’ First Amendment claim, we hold that the speech in which they seek to engage is protected by the First Amendment and that the President and Scavino exert governmental control over certain aspects of the @realDonaldTrump account, including the interactive space of the tweets sent from the account. That interactive space is susceptible to analysis under the Supreme Court’s forum doctrines, and is properly characterized as a designated public forum. The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President’s personal First Amendment interests.
The Seventh Circuit issued its decision in City of Chicago v. Sessions. The court upheld a nationwide injunction blocking the Trump administration from imposing restrictions on recipients of federal public safety grants. Here’s the text of the decision. — Joe
On March 31, 2018, Judge Huvelle, DDC, ruled that the Judicial Conference overcharged Pacer users. Here’s the text of the opinion. For a critique of the ruling, see Stephen Schultze, Judge Declares Some PACER Fees Illegal but Does Not Go Far Enough, Freedom to Tinker, April 1, 2018. Recommended. — Joe
According to the press release, “More than 225 years of Supreme Court decisions acquired by the Library of Congress are now publicly available online – free to access in a page image format for the first time. The Library has made available more than 35,000 cases that were published in the printed bound editions of United States Reports. … The digital versions of the U.S. Reports in the new collection were acquired by the Law Library of Congress through a purchase agreement with William S. Hein & Co. Inc. The acquisition is part of the Law Library’s transition to a digital future and in support of its efforts to make historical U.S. public domain legal materials freely and easily available to Congress and the world.” You can access the collection here. — Joe
Here’s the abstract for Adam Steinman’s Non-Majority Opinions and Biconditional Rules, Yale Law Journal Forum, Vol. 128 (Forthcoming):
In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court’s holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an if-then proposition (If A, then B) with its inverse (If Not-A, then Not-B).
Appellate courts on both sides of the circuit split that prompted the grant of certiorari in Hughes have overlooked the special features of biconditional rules. If the Supreme Court makes the same mistake, it could adopt a misguided approach that would unjustifiably create binding law without a sufficient consensus among the Justices involved in the precedent-setting case. This Essay identifies these concerns and proposes ways to coherently apply Marks to non-majority opinions that endorse biconditional rules.
Here’s the abstract for Katherine Shaw’s Beyond the Bully Pulpit: Presidential Speech in the Courts, 96 Texas Law Review ___ (2017):
The president’s words play a unique role in American public life. No other figure speaks with the reach, range, or authority of the president. The president speaks to the entire population; about the full range of domestic and international issues we collectively confront; and on behalf of the country to the rest of the world. Speech is also a key tool of presidential governance: for at least a century, presidents have used the bully pulpit to augment their existing constitutional and statutory authorities.
But what sort of impact, if any, should presidential speech have in court, if that speech is plausibly related to the subject matter of a pending case? Curiously, neither judges nor scholars have grappled with that question in any sustained way, though citations to presidential speech appear with some frequency in judicial opinions. Some of the time, these citations are no more than passing references. Other times, presidential statements play a significant role in judicial assessments of the meaning, lawfulness, or constitutionality of either legislation or executive action.
This Article is the first systematic examination of presidential speech in the courts. Drawing on a number of cases in both the Supreme Court and the lower federal courts, I first identify the primary modes of judicial reliance on presidential speech. I next ask what light the law of evidence, principles of deference, and internal executive-branch dynamics can shed on judicial treatment of presidential speech. I then turn to the normative, arguing that for a number of institutional reasons, it is for the most part inappropriate for a court to give legal effect to presidential statements whose goals are political storytelling, civic interpretation, persuasion, and mobilization—not the articulation of considered legal positions. That general principle, however, is not absolute. Rather, in a subset of cases, a degree of judicial reliance on presidential speech is entirely appropriate. That subset includes: cases in which presidential speech reflects a clear manifestation of intent to enter the legal arena; cases touching on foreign relations or national security; and cases in which government purpose constitutes an element of a legal test. In light of the rhetorical strategies of President Donald Trump, the question of the impact of presidential statements in the courts is quickly becoming a critical one.
Interesting. — Joe
Lawfare’s Litigation Documents & Resources Related to Trump Executive Order on Immigration is an archive of court filings and related resources surrounding Trump’s three travel ban executive orders. — Joe
According to Stephen Gardbaum and Richard H. Pildes in Populism and Democratic Institutional Design: Methods of Selecting Candidates for Chief Executive in the United States and Other Democracies, New York University Law Review, 2018, Forthcoming, Donald Trump would most likely not be President but for the institutional change made in the 1970s in the nature of the presidential nomination process. From the article’s conclusion:
This Article should be read against the rise of the populist forces, including illiberal and authoritarian ones, that are currently roiling numerous long-established democracies. Populist alienation, anger, and hostility toward government and political elites are not unexpected in the aftermath of the financial crisis that began in 2007; as economic historians have shown in studies of democracies going back to 1870, financial recessions—which endure much longer and are therefore more painful than ordinary economic recessions—regularly spawn a rise in populist politics and parties, in left and right variations. Add to these economic dislocations the cultural challenges posed in many countries by the dramatic rates of increase of immigration (legal and illegal) in recent years, as well as the opportunities created by the rise of social media, and the challenge to traditional politics and parties is even less surprising.
Here’s the abstract:
In the 1970s, the United States shifted almost overnight from the methods that had been used for nearly 200 years to select party nominees, in which official representatives of the political parties played the major role in deciding the parties’ candidates for President, to a purely populist mode (primaries and caucuses) for selecting presidential nominees. This article explores the contrast between nomination processes that entail a central role for “peer review” – in which party leaders have a central voice in the selection of their parties’ nominees – and purely populist selection methods, such as currently used in the United States, in which ordinary voters completely control the selection of nominees and party figures have no special role.
The first half of the article is historical and focuses on the United States. The second half is comparative and explores how other major democracies structure the process of choosing party leaders and candidates for chief executive. In the historical sections, we seek to show both how radical the change was that was made in the 1970s and yet how accidental, contingent, and inadvertent this transformation was. The “framers” of these changes did not actually intend to create the system with which we ended up, in which the primaries and caucuses completely determine the parties’ nominees. The comparative sections show that the U.S. system is an extreme outlier among major democracies: in no other democracy is the selection completely controlled by the mass of ordinary voters. Most other democracies use systems of pure peer review to select candidates for chief executive; or use systems that mix elements of peer review with popular participation; and in other ways continue to give official representatives of the parties much greater say than in the United States over the selection of the parties’ nominees for Chief Executive.
The institutional design through which democracies choose nominees who compete to become a nation’s Chief Executive is among the most consequential features in the design of democratic elections. Yet there is surprisingly little scholarship that explores this issue in detail. This article also contributes to the general analysis of the rise of populist politics in many democracies today by showing how the institutional design for how party nominees are chosen can enable or constrain how easily and quickly populist political forces are able to capture control of government.
Interesting. — Joe
Here’s the abstract for Adam Steinman’s very interesting article simply titled Case Law, Boston University Law Review, Vol. 97, No. 1947, 2017:
Although case law plays a crucial role in the American legal system, surprisingly little consensus exists on how to determine the “law” that any given “case” generates. Lawyers, judges, and scholars regularly note the difference between holdings and dicta and between necessary and unnecessary parts of a precedent-setting decision, but such concepts have eluded coherent application in practice. There remains considerable uncertainty about which aspects of a judicial decision impose prospective legal obligations as a matter of stare decisis and to what extent.
This Article develops a counterintuitive, but productive, way to conceptualize case law: the lawmaking content of a judicial decision should be only those decisional rules that the court states explicitly and that can be framed in the form (If P, then Q). Future courts would not, however, be required to reconcile their decisions with other findings, conclusions, or reasons that the precedent-setting court offers. Although these other elements of a judicial decision could remain influential, they would not impose binding obligations as a matter of hierarchical stare decisis.
This rule-centered approach would allow judicial decisions to clarify the law when such clarifying rules are justified and desirable, but otherwise leave the slate clean for courts to confront unresolved questions in future cases with the full participation of future litigants. As to the concern that judicially announced rules may sweep too broadly, this Article’s approach would leave future courts free to develop distinguishing rules in a way that serves many of the same purposes as the conventional understanding of how cases may be distinguished, but that reduces the risk of disingenuous distinctions, enhances rather than muddies case law’s clarifying benefits, and avoids conceptual and definitional problems inherent in the current approach. This Article’s framework also helps to resolve a host of other difficult puzzles relating to judicial decision-making, including the controversy surrounding unpublished opinions, the stare decisis effect of decisions that lack a majority opinion, and how to identify and resolve tensions within case law.