Researchers trying to rate and rank judges have high aspirations. Some suggest that their measures of quality can be used to select judges for advancement, to determine what backgrounds produce the best judges, and to identify models to whom fellow judges can defer. This response to their efforts has three parts. Part I critiques some of the work to date. (The critique is brief because it was the principal subject of a prior Duke symposium.¹) It argues that ranking—and even rating—judges is unlikely to produce the promised benefits; that the measures thus far used by social scientists miss the mark; and that those measures, to the extent that they influence judges, could encourage bad practices. Part II, the heart of this Essay, lists desirable qualities in appellate judges. Perhaps social scientists can find methods to measure these qualities objectively and accurately. Part III concludes, however, that even if social scientists cannot find such methods, efforts to identify the qualities of a good judge can be beneficial if they spur intelligent, respectful dialogue to encourage conscientious judges to improve their work.

I.
Rating and Ranking Judges

Based on my observations and experience, some of the hopes expressed for rating and ranking judges are quixotic. For example, it would be remarkable if the electorate or an appointing authority made decisions any differently if candidates for judicial advancement were ranked by social scientists. Once a candidate passes the “qualified” hurdle, decisions are more likely to be made based on political and interpersonal skills. Likewise, studies of those judges who are ranked highly are unlikely to reveal what backgrounds produce the best judges; my personal experience is that excellent judges come from all sorts of backgrounds. And although law clerks may tend to refer their judges to opinions by highly ranked authors, the judges themselves are unlikely to pay obeisance. Most judges are independent sorts, with sufficient egos not to be dazzled by prestige. They do not adopt an idea just because it comes from a renowned person; they need to be persuaded on the merits.

In addition, I question whether the task of rating judges can be done well, and I worry that defective rating methods can have adverse consequences. Recent research has attempted to develop objective measures of judicial quality. As some participants in this Symposium have observed, however, the research appears to be driven by the availability of data. That is, social scientists have limited themselves to data that can be collected from available sources and then convinced themselves that certain subsets of that data reflect judicial quality, enabling them to rank judges accordingly. But although such measures can be precise, they may not measure what is useful and may encourage questionable conduct, as has happened in response to ratings of educational institutions. For example, I doubt that a judge’s independence can be captured by counting the number of dissents or disagreements with colleagues (either all colleagues or only those of the same political party). A judge who disagrees may simply be close-minded and unable to persuade colleagues. Worse, if a judge’s reputation turns on the frequency of disagreement, those seeking to improve their stature may try to find grounds on which to disagree, rather than making an effort to find common ground. Or if one measures a judge’s contribution to the law by how often the judge is cited, judges (who are well aware that the best way to get cited is to be the first to opine on a subject) may be tempted to produce more dicta and address issues not presented by the parties.

But replacing objective measures by subjective ones is not the answer. Reputation is a measure that feeds on itself, at times with very little of substance to support it. The compliment “highly underrated” can be as useful in describing judges as football players. Evelyn Waugh once observed that one can acquire a great reputation by being “dogmatic, plausible, and vain.”² Judicial reputations are hardly immune from questionable influences.³

II.
Judicial Quality

As the organizers of this Symposium have suggested, rather than starting with measures for which there are data and then deciding what those measures say about quality, perhaps one should reverse the process, deciding what constitutes judicial quality and then exploring how to measure those constituents. This Section responds to that suggestion with a list of what I believe to be desirable qualities in an appellate judge. Others may use rather different measures. Academics may be most concerned with whether the judge’s opinions are good teaching tools and raise interesting ideas. Attorneys may be most concerned with whether their clients win. Politicians may like judges whose opinions reach results that achieve wide popularity.

My perspective, of course, is that of an appellate judge. I will try to answer the question: “What do you look for in a fellow judge?” I am sure that to some extent my views are idiosyncratic. But I believe that each of my criteria would receive the support of a large fraction, perhaps a majority, of appellate judges.

Before I set forth my criteria, I would point out one possible criterion that is absent: to be a good appellate judge, a colleague does not have to agree with me. Any appellate judge with only a modest amount of experience would recognize that if “agrees with me” is a necessary criterion for a good judge, then only one judge would meet the standard. The simple truth is that no judge’s colleagues are as insightful and wise as the judge himself or herself. Criteria should be attainable in the real world.

I will group my criteria under four headings: Treatment of Colleagues, Treatment of Litigants, Treatment of the Law, and Treatment of the Institution. My order of discussion is not meant to suggest order of importance.

A.     Treatment of Colleagues

A good judge treats colleagues fairly. If it is true that ninety percent of life is just showing up, then treatment of colleagues belongs in the other ten percent. Just showing up won’t cut it. Colleagues should do their share of both the glamorous and the nitty-gritty work of the court. The part of a judge’s work to which the public pays most attention is the production of published opinions. But a judge who focuses only on producing published opinions is not a good colleague. To be sure, most judges would like to devote a greater percentage of their time to working on published opinions that raise challenging issues (although taking a break to resolve a routine case can often bring a welcome sense of accomplishing something). But writing a published opinion in a case that does not warrant it (because it says nothing new) wastes paper and the time of those who feel a need to read it. More importantly, if a judge shirks all duties except the preparation of published opinions, the other, less-interesting duties are shared disproportionately by the judge’s colleagues. These duties include participating in calendars of cases that are likely to result in unpublished opinions, disposing of motions, and serving on one of the many committees that handle court rules and administrative matters. Judges have different interests and may prefer some of these tasks to others. Which they select is immaterial; the important thing is to do one’s share.

B.     Treatment of Litigants

The first duty of appellate judges is to decide the cases before them. The process of decisionmaking must be fair, and appear to be fair, to the litigants. The fairness of treatment on appeal, unlike the fairness of treatment at trial, cannot be measured on the basis of face-to-face encounters. Appellate judges rarely are seen by the parties to a dispute; and most of the time they are not seen even by the parties’ attorneys (and then only for a few minutes, in the highly artificial setting of oral argument). Thus, fairness must be assessed by reading opinions. An opinion reflects fairness to the litigants when it has the following features:

1.   Takes Care with the Facts

The factual context of a case should be stated fairly (including “unfavorable” facts) and accurately. If a fact is worth incorporating in an opinion, it is worth setting forth correctly. Not all facts in an opinion are critical to the resolution of the dispute; but it is important to check the accuracy of even background facts, because an opinion that treats facts cavalierly will suggest that the court has been inattentive to the case. Perhaps the easiest way for a losing attorney to convince a client that the court did not give fair consideration to the client’s contentions is to point out that the court omitted important facts or did not get the facts straight.

2.   Sticks to the Record

An appellate court should decide the case on the record produced in the lower court. When the court goes outside the record, it relies on matters that the parties had no opportunity to contest and that the lower court had no opportunity to take into account. To go outside the record to resolve a dispute will thus offend the sense of justice of the party injured by the practice, and will also likely frustrate the trial court that is being reversed on grounds not presented to it.

3.   Addresses the Parties’ Contentions

A party will not feel that the court has acted fairly if the court does not address the party’s contentions on appeal. This is not to say that every contention must be resolved on the merits. Often a contention is mooted by the resolution of another issue. The court also may refuse to consider a contention because it was not preserved below or not properly presented on appeal. In addition, unfortunately, some briefs are so poorly prepared that the court must characterize the party’s contentions differently than the party did, and thus the issues addressed in the opinion may not match the party’s listed contentions. A good judge, however, will take care that the opinion recognizes all properly presented arguments. I can understand why a court may occasionally write something like, “We have reviewed appellant’s other arguments and none has merit”; but I am not fond of the practice. At the least, I would want to state that the appellate court substantially agrees with the lower court’s analysis of the issue.

4.   Is Evenhanded

A judge should be evenhanded, applying the same rule of law in a similar fashion to all parties. A judge may be either strict or lenient about what it takes to preserve an issue; but the judge should not be lenient when considering preservation by a personal-injury plaintiff and strict when considering preservation by a personal-injury defendant. Similarly, a judge may have lenient or restrictive views on when parties are entitled to standing; but the judge should not be lenient for those exploiting mineral resources and restrictive for those opposed to such exploitation. Of course, there are exceptions to the general rule. Pro se litigants should be granted some leeway, so long as the court does not become their counsel. And the government can be expected to toe the line more closely than others. But lack of evenhandedness can be the most telling indication of appellate bias against an individual litigant or category of litigants.

C.     Treatment of Law

Although an appellate court’s first duty is to decide the case before it, the legal doctrine set forth in the court’s opinion is almost always the most important consequence of the court’s decision to society as a whole. It matters little to the general reader of the opinion whether the court erred in its decision because it got the facts wrong, went outside the record, or failed to consider an argument by the losing party. A distinct set of considerations governs whether a judge does a good job in setting forth legal doctrine. A judge’s opinions should satisfy the following criteria:

1.   Describe the Case Law Honestly

Even when precedent does not determine the result in the case, prior case law is likely to impose significant constraints or be persuasive. The reader of an opinion should be able to assume that the author accurately describes the facts and holdings in cases cited in the opinion. Of course, progress (or at least development) in the law often occurs when precedents are re-examined and recharacterized, and a “better” explanation is then provided for the results in those cases.⁴ But there is no reason for a court today to be deceptive about what it is doing in that regard.

2.   Help Develop the Law

A good judge contributes to the development of the law. I do not mean that the good judge always “gets it right.” Early in my career I agonized about whether I was stating the law absolutely correctly. Then I realized that I simply do not have the experience and intelligence to come up with all the relevant considerations, much less wisely evaluate them, in deciding how to frame a rule of law. All I could expect from myself was to work as diligently and intelligently as I could on the matter. I can hardly expect more from others. But even if the judge does not get it right, the judge can make a contribution by sharing the product of his or her diligence and intelligence. Perhaps the most important component of this contribution is clarity. Rather than just pronouncing the result, the opinion should clearly explain how the court arrived at its conclusion. If the judge believes that there are three important considerations supporting the conclusion, the opinion should recite those considerations and explain how they interact to compel the result. Others may later show that there are really four important considerations, but the judge who came up with the first three has made the analysis easier for those who follow. I value judges who advance the law by sharing the product of their diligent, intelligent efforts, even when I disagree with their conclusions. One of the joys of appellate judging is the interchange of ideas that leads to a better opinion than any single judge on the panel could produce; this interchange can be among judges who agree on a result, but the best work often comes when there is a dissenting voice.

3.   Be Consistent

A judge should be consistent in the process of arriving at doctrine. For example, does the judge have a consistent practice in deciding whether to overturn a precedent or to apply stare decisis? A judge could consistently decide to overturn precedent whenever the judge believes the precedent to have been poorly reasoned; but then the judge is not entitled to rely on stare decisis doctrine to criticize fellow judges for overturning a precedent that they believe to have been poorly reasoned. If a judge bases a constitutional doctrine not on the specific language of the Constitution but on the structure created by the document, the judge cannot criticize others for using the same methodology to reach a result opposed by the judge. Likewise, judges should be consistent in applying canons of statutory construction and in using the results of research in the hard and soft sciences.

D.     Treatment of the Institution

The authority of courts in this country is founded on the reputation of the judiciary. An appellate judge has a duty to contribute positively to that reputation. The judge’s work may well advance the reputation of the judge, but it should not do so at the expense of the courts themselves. A few thoughts on what makes judges good in this respect:

1.   Persuasiveness

Courts may have the power to rule however they wish. But their legitimacy is based on the persuasiveness of their opinions. Accordingly, I value colleagues who write coherently, logically, and convincingly.

2.   Respect for the Courts and the Reader

Persuasiveness of opinions may be the most important factor in establishing the legitimacy of judicial decisions, but it is not the only one. The style and tone of an opinion can also advance or detract from the prestige of the deciding court and of the judicial system as a whole. Opinions that carp at or demean other judges or their work can only cause the public to adopt a similar attitude. And attempts at eloquence that degenerate into bloated prose can provide ammunition for the view that the courts have lost touch with the community.

3.   Modesty

The purpose of writing opinions is not to create a reputation for the author. Grand pronouncements, declarations of “new” legal principles, and treatise-like discussions that go beyond the needs of the case may well establish the author’s brilliance. But they are at least as likely to be examples of “writing more than one knows”⁵ and thus provide numerous opportunities for later judges to correct errors and cabin dicta. Such writing can also create an aura of judicial willfulness. Judicial craftsmanship often consists in explaining how the law expressed in an opinion follows naturally from prior case law. The more an author signals that the law expressed in the opinion is essentially the creation of the author’s brilliance, the less the reader will be convinced that the court’s work represents the rule of law rather than the rule of persons who happen to be judges.

III.
Measuring Quality

Now that I have listed what I believe to be attributes of a good appellate judge, one might ask what good the list does. Perhaps some of the listed attributes can be measured objectively. After all, experts have developed ways of determining how much time it takes trial judges to perform various tasks; and the time may come when someone believes it possible to measure whether an appellate judge is doing a fair share of the court’s work. Also, measures that are not totally objective may be developed to evaluate whether a judge treats litigants evenhandedly or develops legal doctrine in a consistent manner. I have my doubts. Yet even without such measures, a list of desirable qualities can serve a useful purpose. The most productive engine for improving judicial performance is the conscientiousness of those who wear robes. If judges and the consumers of their work can exchange views about desirable qualities for appellate judges, then judges who care about their craft (who comprise the great majority of the profession) can consider those views and conduct periodic self-evaluations. I frequently see my colleagues borrow good practices from one another, often without any discussion between them. I am confident that as judges engage in conversation and introspection regarding quality, we will continue to improve the way we do our jobs.

Acknowledgments:

Copyright © 2010 Duke University Law Journal.

Harris Hartz is a Judge on the U.S. Court of Appeals for the Tenth Circuit.

One kind of empirical study of judicial decisionmaking might be regarded as continuous with the broader goal of social science, which I take to be something like understanding human behavior in general. I see the ultimate aim of this sort of empirical inquiry as developing a theory that explains and predicts judicial decisionmaking in roughly the same way a psychological theory might seek to explain and predict other observed phenomena of human behavior, such as the tendency to obey authority. Just as a successful psychological theory of obedience might, among other things, identify the conditions that explain why and predict whether a given subject will obey an order given by an authority figure in a particular context (for example, personal characteristics of the subject, the subject’s relation to the authority figure, the nature of the order, and its expected consequences), one might likewise consider an empirical theory of judging in this vein successful if it allows particular conditions to be identified—for example, political ideology, characteristics of the litigants, particular features of a case’s history, or the provenance of relevant precedent—that explain and predict judicial outcomes.³

Within this broadly defined empirical project of explaining and predicting judicial decisionmaking as human social behavior—one might call it the project of “naturalizing jurisprudence”⁴—there are multiple theoretical perspectives that might be relevant. A single type of observed judicial decisionmaking might be understood simultaneously through the frameworks of sociology, political science, social psychology, cognitive psychology, and perhaps even neuropsychology. Whether or how all these empirical perspectives might be integrated remains unclear. Presumably, a grand unified theory of judicial decisionmaking is no more and no less likely than a grand unified theory of human behavior in general. All of these scientific perspectives may be viewed as having one common, general aim: they seek to provide causal explanations of judicial decisions—theories that identify the causal predicates of observed decisions and do so with predictive power.⁵

A second type of empirical study of judicial performance seems quite different in its basic aim from the project of naturalizing jurisprudence. The goal of this second type of study might broadly be described as identifying quantified measures of good judicial performance—for example, citation counts, dissent rates, and productivity—that can be used to assess and even rank the quality of sitting judges, judicial candidates, and courts. This type of undertaking can be seen as a way of compiling otherwise inaccessible information that would presumably be of significant value to public officials, the citizenry, and judges themselves in evaluating and monitoring judicial performance. Public ratings of judges and courts based on this information might have the added desirable effect of sussing out the opaque criteria that various political actors use to champion particular judges or candidates, insofar as those ratings would exert pressure on such actors to give public explanations supporting any low-rated candidates they seek to promote.⁶

What is the relationship between these two empirical projects of naturalizing jurisprudence and of measuring judicial performance? One possibility is that the need for objective measures of judicial performance is a function of the current infancy of the science of identifying the causes of judicial decisions. That is, objective measures that serve as proxies for judicial quality are only necessary because of the lack robust theories that would predict how a particular sort of judge would likely decide a particular sort of case. If such a theory existed, there would be no point in trying to develop any general measure of judicial quality.

An example may help draw out the intuitive appeal of this conjecture. Suppose one could prove that in any case possessing the set of features F, involving a party with characteristics P, a second party with characteristics D, and given additional specifiable conditions C, a judge with a set of characteristics J will always decide the case in a way that is favorable to the party with characteristics P, whereas a judge lacking J will always decide against that party. One might argue that this postulate, if true, would undermine the relevance of any generic notion of judicial quality—apart from whatever constitutes J characteristics—in the context of cases with features F. If one could predict how any particular judge would decide this type of case, there would be no need for further information about the judge’s qualities, at least in that limited context. And if analogous predictions could be made with respect to cases with features F1, F2, and so on, and judges with characteristics J1, J2, and so on, there would be no more reason to care about measuring judicial quality in the context of those cases. Thus, the more progress empiricists make in the project of reducing judicial decisionmaking to its natural causes, the less relevance any project of measuring judicial performance will have.

One might argue, in other words, that judicial quality matters because better judges presumably will make better decisions. But if it were possible to predict judicial decisions in the manner postulated, then no one would have reason to care about generic measures of judicial performance. There would be no reason to fret over proxy measures of good judicial decisionmaking if social science could deliver a theory that directly predicts how a particular judge or candidate would decide particular kinds of cases.

I believe that this argument should be rejected. This argument’s fallacy involves its reliance on the implicit assumption that empirical measures of judicial performance are, at their core, nothing more than an indirect attempt to accomplish one of the goals of the project of naturalizing jurisprudence—namely, developing a theory with the power to predict the outcome of judicial decisions on the basis of specifiable causal predicates. But the project of measuring judicial performance need not be assimilated to that of theorizing the causes of judicial decisions. Rather, the project is fundamentally normative and evaluative in character. The basic question is not about the causes of decisions, but about what makes a good judge, or what constitute the basic virtues of a good judge.⁷ Whereas the naturalizing project seeks to provide causal explanations for judicial behavior in a manner continuous with social science, the empirical study of judicial performance seeks to make explicit and then reduce to numbers our value judgments about the relative merits of selected characteristics of judicial performance. The ultimate test of a causal theory is its explanatory and predictive power. The test of a measure of judicial performance is ultimately the normative plausibility of its embedded value judgments about the core virtues of a judge and how well it captures those judgments.⁸ The two projects have incommensurable aims.

There are, however, some important caveats. I do not deny the potential relevance of the findings of naturalized jurisprudence to the project of measuring judicial performance. For example, some observers might think that any evaluation of judicial performance should incorporate criteria that capture something like political independence or capacity for “nonideological” decisionmaking.⁹ But what if there were empirical evidence that indisputably established that, as a matter of fact, political affiliation almost always predicts judicial outcomes in certain types of cases? I suspect that if that were the case, there would be reason to doubt whether criteria aimed at measuring political independence could possibly capture anything meaningful. Standards of judicial quality must be tempered by contemporary knowledge regarding the limits of human psychology. This is a consequence of the basic moral premise that “ought” at least in some sense implies “can.” To that extent, the study of the causes of judicial behavior is potentially relevant to the project of measuring judicial quality. My point is not to deny this possible point of congruence, but rather to emphasize that society’s concept of a good judge is not simply given by how most judges in fact tend to behave. Findings in the science of judicial behavior cannot themselves determine the normative standards by which judges should be measured and evaluated. This is a consequence of another basic moral premise, namely, that “is” does not imply “ought.”

The other caveat is that my remarks assume that it is possible to construct a model of a good judge that is at least to some degree independent of considered preferences relating to case outcomes. This assumption means, among other things, that a judgment about whether a particular individual would make a good judge is not simply reducible to a set of predictions about the outcomes of cases that would come before that individual. But what if one were to reject this assumption? What if the concept of a good judge that best reflected societal and legal norms did in fact turn out to be nothing more than a reflection of collective preferences about case outcomes?¹⁰ In that case, I do think that measures of judicial performance that captured the concept might be collapsible into predictions of judicial behavior. That is, if society’s notion of a good judge turns out to be nothing more than a set of predictions about the likelihood of a judge’s reaching particular outcomes in particular cases, then measures of judicial performance would be nothing more than proxy predictions about what judges would probably do in such cases. It might follow, then, that my claim—that the project of measuring judicial performance is fundamentally distinct from the project of determining the causes of judicial decisions—depends on the defensibility of a particular kind of concept of a good judge, namely, one that is not tied to the desirability of specific outcomes in particular cases.

I do not think that this conclusion does, in fact, follow. Even if this sort of cynicism about the concept of a good judge were warranted, I believe that the project of naturalizing jurisprudence would still remain fundamentally different from the project of quantifying judicial performance, because the latter is essentially a normative endeavor in a way that the former is not. Even if every theorized measure of judicial performance turned out to be nothing more than an elliptical predictor of a particular set of case outcomes, every theorist’s proposed measure of judicial performance would still be answerable to questions about its underlying normative conception of a good judge. Empirical theories about the causes of judicial decisions need not answer these questions.

Pretend, for example, that one could show that measures of judicial performance that depend on citation counts tend to highly rank judges who are more likely to invalidate legislation in federal constitutional cases. If that were true, then commentators might observe that these performance measures are empirically reducible to predictors of how judges will decide those kinds of constitutional cases. This finding would not, however, undermine my central argument, which is that the project of empirically measuring judicial performance, in contrast to the project of identifying the causes of judicial decisions, is fundamentally normative. The discovery of a sufficiently tight predictive correlation between citation counts and a disposition to invalidate legislation might support a claim that any interest in the former as a measure of judicial quality is really nothing more than an indicator of a preference for the latter outcome. But the question that this discovery would not and could not answer is whether anyone should therefore stop using the citation count measure as a benchmark for judicial performance. Arriving at an answer would require normative discussion about principles of judicial evaluation—principles that specify why certain considerations should count as legitimate reasons for or against appointing someone as a judge. Any given measure of performance may collapse into a prediction about substantive case outcomes. This possibility does not show, however, that the measurement project itself collapses into a predictive one. Whatever an empirical theory of judicial performance might in fact be measuring, it must always answer one normative question that a purely predictive one need not answer: should the measures in question form the basis for evaluating judges? For this reason, the project of measuring judicial performance is inescapably normative in a way that the goal of naturalizing jurisprudence is not.

Studies of judicial performance that seek to determine judicial quality by quantitative measures (such as citation count) will ultimately stand or fall on the strength of the normative reasons that can be marshaled for valuing as judges the kind of individuals who do well on those measures. Empirical measures of judicial performance ultimately depend on normative claims about what it means for someone to be a good judge, and the strength of any proposed empirical measure is necessarily a direct function of the strength of the justification of those normative claims. Theories about the causes of judicial performance do not depend on these justifications. And no purely empirical project can supply those justifications. That is a task for normative, not empirical, inquiry.

Acknowledgments:

Copyright © 2010 Duke University.

Patrick S. Shin is an Assistant Professor at Suffolk University Law School

Larry Alexander and I have written at some length about the function of rules in legal decisionmaking.¹ Briefly, we argue that, from the central perspective of someone designing a legal system, it is desirable that at least some range of legal disputes be governed by general, determinate rules, and that these rules be treated as authoritative. To treat a rule as authoritative is to follow it in all cases that fall within its terms, without further analysis of the underlying purpose or rationale that motivated the rulemaker to announce the rule. From a systemic perspective, authoritative rules are attractive for several reasons. Rules, if they are generally obeyed, can help their subjects avoid errors and biases that distort case-by-case judgment. Rules can also provide coordination if all or most subjects treat them as authoritative. Individuals can act more effectively if they know what others are likely to do, and an authoritative rule makes it possible to predict others’ conduct in situations governed by the rule.

At the same time, the generality of rules often leads to overinclusiveness in application. As a result, rules will sometimes prescribe outcomes that are wrong, judged by the rules’ own purpose or rationale. Yet the overinclusiveness of rules does not alter the conclusion that rules function most effectively when treated as authoritative. If a rule is well designed—that is, if the rule will prevent more errors overall than it will cause through overinclusiveness—then it is best, from the perspective of the system designer, that those who are subject to the rule follow it in every case to which it applies.²

The difficulty with authoritative rules is that it is not at all clear how rational subjects can treat rules as authoritative. If a rule appears to give the wrong answer in a particular case, the rational choice is to disobey. The subject may understand that rules prevent errors of judgment, but if the subject also understands that rules are overinclusive, the subject may nevertheless conclude that his judgment is correct. The subject may also understand the coordination value of rules, and yet conclude that the error that will result from following a rule in a particular case outweighs the loss of coordination that will result from a single act of disobedience. In each case, the subject may be wrong, but this does not make it subjectively rational to follow the rule.³ The consequence is an unbridgeable gap between the perspective of those who oversee the legal system and the perspective of those subject to the system’s rules.

Judges occupy two positions in this account of legal rules. First, they act as rulemakers. Judicial opinions often contain prescriptive statements that are determinative enough to count as rules and are intended to serve as decisional standards in future cases. Assuming the rules are well designed in the sense described above (assuming, that is, that the rules will prevent more errors than they generate over the long run), the legal system will benefit if future judges, as well as future actors, treat them as authoritative: judicial rules, no less than legislative rules, can reduce errors and provide coordination.

In addition to serving as rulemakers, judges also apply rules to the cases litigants bring to court. When judges apply rules, their perspective is similar to that of rule subjects. If a judge is persuaded that the governing rule provides the wrong answer (as indicated by the rule’s underlying rationale) in a particular case, applying the rule will seem both irrational and unfair. Moreover, the judge may find it difficult to give due recognition to the long-term advantages of the rule, because the judge’s attention is focused on the specific facts of the case.

This view of rules and the roles they play in judicial decisionmaking leads to a number of empirical questions about how judges respond to rules. The most basic question is whether judges treat rules as authoritative. Do judges apply rules only when they are persuaded that the outcome of the rule in the case at hand is consistent with the rule’s purpose or rationale (or is correct, all things considered)? If so, the answer to the basic question is no; rules have no real consequences for adjudication, and the various Legal Realist speculations about what drives judicial decisionmaking come into play.

Assuming that judges sometimes do follow rules simply because they are the rules of the system, the next question is how deeply judges are committed (or how thoroughly they are habituated) to following rules. Do judges follow rules without reflection only when the purpose or rationale of the rule has not been brought to their attention? Do they refuse to consult the rationale or purpose of an established rule if the terms of the rule apply uncontroversially to the case at hand? Do they also follow rules in conscious disregard of the rule’s purpose or rationale, when the rule’s purpose or rationale appears to conflict with the result it prescribes?

If the answer is that judges who follow rules do treat the rules as authoritative against their own best judgment about what outcome is best, subsidiary questions arise about the conditions under which judges are willing to suspend judgment and follow rules. For example, the rule in question may be defective, in the sense that it generates more errors than it prevents overall. Alternatively, the rule may be sound, in that it prevents more errors than it generates overall, and yet misfire in a particular case. Here, the question for investigation is whether differences in the overall quality of the rule affect the level of judicial obedience to the rule.

Another subsidiary question is whether differences in the vividness of the facts presented for adjudication affect judges’ responses to precedent rules. Here, the variable is not the quality of the rule, but the salience or affective impact of a seemingly wrong outcome required by the rule.⁴ The question for investigation is whether judges approach rules consistently in different factual settings, or, alternatively, whether their treatment of rules varies according to the exigencies of particular cases.

These questions are obviously hard to answer. Written opinions may provide some evidence of judges’ attitudes toward rules, but only when judges perceive the dilemma of rule-following and also have reason to discuss it in the course of explaining their decisions. This set of circumstances may be rare; in any event, opinions that directly address rule-following are not likely to yield a representative sample of judicial responses to rules.

A more promising approach might be to conduct controlled experimental studies on judicial subjects. The logistics of this form of research are daunting, but work by Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich suggests that it can be done.⁵ As an illustration, consider the following stylized example. (Many refinements would be needed to produce a workable test.) A group of judges is presented with a problem case. The defendant is a retired veterinarian who has just moved to a new neighborhood. In his backyard, he keeps a pet giraffe. The defendant treats the animal well and provides it with ample space. The giraffe is a quiet animal with no violent tendencies, and it has no negative sensory effects on neighbors. The defendant kept the giraffe for several years in another state without incident or complaint. Neighbors have sued, claiming the giraffe is a nuisance and requesting an order requiring the defendant to remove it from the neighborhood.

To capture variations in legal rules, some judges might be told that prior cases establish that keeping a wild animal in a residential neighborhood is a nuisance per se. This is, presumably, a sound rule—over the long run, it will tend to prevent harm and offense, though it may sometimes result in the elimination of unobjectionable pets, such as the defendant’s giraffe. Other judges might be told that prior cases establish that keeping a large animal in a residential neighborhood is a nuisance per se. This rule looks too broad: it may do more harm than good over the range of cases to which it applies. Judicial subjects would be asked to decide the case and possibly to comment on the outcome. A significant number of decisions in the plaintiffs’ favor might suggest that rules influenced the judges’ decisions, particularly if the judges signified discomfort with the outcome of the case. If results were roughly the same for both versions of the problem, the inclination to follow rules would seem impervious to the quality of the rule. If, however, outcomes varied according to the version of the precedent rule presented to  judges, this would suggest that judges deciding whether to follow rules are likely to discriminate according to the quality of the precedent rule.

The facts of the experimental problem could also be varied to detect the influence of vivid facts. For example, some judges might not be given any personal information about the defendant; others might be told that the defendant rescued the giraffe from sordid conditions in a private zoo. In this case, variation in decisions would indicate that judges deciding whether to follow rules discriminate according to the salience of the factual consequences of applying the rule.

A second set of questions relates to the role of judges as rulemakers. Frederick Schauer has suggested, very plausibly, that the quality of judicial rules may suffer as a result of the adjudicatory context in which judges work.⁶ In particular, a judge focused on the salient features of a litigated case may adopt a rule that responds to those features, without adequately considering the effects of the rule in other cases that fall within its terms. The judge may assume, in other words, that the present case is more typical than it is—more representative, as a cognitive psychologist might say—of cases governed by the rule. A tame and odorless giraffe, for example, might not typify wild animals kept as pets.  If so, the rule is likely to prove unsatisfactory over time.

The initial question is whether Professor Schauer’s suggestion—that judicial rules may be adversely affected by the adjudicatory setting from which they emerge—is correct. If so, a further question is whether certain features of the judicial process can help avoid or decrease the distorting effects of vivid facts. For example, are judges less likely to err in their choice of rules when the parties present them with an array of purportedly analogous cases that might arise under a proposed rule?⁷

It is surely possible to find examples of this pattern in decided cases, but decided cases are unlikely to provide a systematic overview of the problem. Again, the most promising alternative is probably experimental. Judges might be given the facts of a case together with a selection of proposed decisional rules, the overall quality of which varies inversely with the attractiveness of their outcomes in the case at hand.

Empirical information about judicial responses to rules would be of great utility in studying the judicial process. Obtaining reliable information would, of course, require tremendous empirical ingenuity: designing effective problems is a challenge. Eliciting a serious but candid response from judges is an even greater challenge: judges must somehow be enticed to do what they ordinarily do, without too much reflection on the nature of the exercise. Fortunately, the objective of this short Essay is only to identify the types of information that would be most helpful to theorists interested in decisionmaking in a regime of legal rules.

Acknowledgments:

Copyright © 2010 Duke Law Journal.

Emily Sherwin is a professor at Cornell Law School.

Some of the discussions at the Symposium highlighted an area where academics’ perceptions of judging conflict with judges’ actual experiences. Judges and academics view the significance of judicial dissents quite differently. Whereas many of the judges believe that dissents primarily reflect the level of cohesiveness and collegiality of the court, academics typically place much more significance on the meaning of judicial dissents. For example, recent academic studies have asserted that judicial dissents often reveal the influence of judges’ retention concerns,¹ the level of judges’ independence,² or certain judges’ higher propensity for risk taking.³

In contrast, many judges at the Symposium considered academics’ emphasis on judicial dissents to be misguided. The judges maintained that dissents reveal less about judges’ retention concerns, impartiality, or risk preferences, and more about the culture of collegiality on the court. Many of the judges believe that dissents primarily reflect the level of cohesiveness among judges, and that various factors and institutions influence this cohesiveness. For example, they explained that the personal relationships, amount of professional and social interaction, and diversity among judges on a court might influence the level of dissent. Many of the judges hypothesized that courts that are more collegial, either because the judges are better friends or share more common values or backgrounds, should have lower dissent rates. Judges on these courts should be less likely to openly criticize the opinions of their colleagues by dissenting.

Although academics have long recognized that institutions such as opinion-assignment procedures and voting order might influence the propensity to dissent,⁴ empirical studies have failed to consider the impact of collegiality and personal relationships on dissent rates. Thus, in this short Essay, I empirically test whether some of the judges’ assertions are consistent with the data. I test whether various measures of diversity are associated with dissent rates in state supreme courts. I find that diversity in many areas—gender, race, age, religion, home state, and political affiliation—is associated with higher levels of dissent. In contrast, diversity in the jobs that judges had before taking the bench is associated with lower dissent rates.⁵

I also test whether the length of time judges have served on the court is associated with dissent rates. Presumably, judges that have served on a court together for many years would have stronger friendships than newer judges, and thus may be more collegial and less likely to dissent. However, my empirical analysis finds the opposite: the greater the number of judges with lengthy tenures on the court, the higher the dissent rate.

Empirical Analysis

To test the influence of diversity and tenure on judges’ propensity to dissent, I use data from the State Supreme Court Data Archive. This data includes an almost universal sample of state supreme court cases in all fifty states from 1995 to 1998. The data include more than twenty-eight thousand decisions involving more than 470 individual state supreme court justices.⁶ The data include variables that reflect case histories, case participants, legal issues, case outcomes, and individual justices’ behavior. I supplemented these data with institutional variables that describe aspects of each state’s judicial system, and with detailed information about each judge’s personal characteristics, background, and career.

Thus, my data consist of individual judge-level votes in each case before the state supreme courts. I use an ordinary probit model to test whether diversity and tenure on a court influence judges’ likelihood of dissenting. The dependent variable in my estimation is an indicator variable for whether an individual judge casts a dissenting vote in each case.

My estimation includes several measures of the diversity of judges’ personal characteristics and backgrounds on each court. I measure the diversity of each personal characteristic on each court with an index that is essentially one minus a Herfindahl index of each characteristic:⁷

Diversity of personal characteristic = 1 − _j (# of judges of each type j / total # of judges)².

For example, diversity along the racial dimension would be measured with:

Diversity of race = 1 − _j (# of judges of each race j / total # of judges)², where j = [White, African American, Asian, Hispanic, and other].

The diversity measure ranges from zero, when the court is composed of judges of only one “type” (that is, race), to one, when each type is represented equally on the court. Thus, increases in this measure indicate an increase in diversity on the court.⁸

I include variables that measure diversity along several different dimensions: gender, race (White, African American, Asian, Hispanic, and other), age (under 45, 46 to 55, 56 to 65, and over 65), religion (Protestant, Catholic, Jewish, Greek Orthodox, Mormon, and other), home state (from the state where the court is located or from another state), political party affiliation (Republican, Democrat, or Independent), and job held before taking the bench (prosecutor, attorney general, elected official, lower-court judge, or nonelected official).

I also include two variables that represent judges’ tenure on the court. I include the percentage of judges on each court that have served for one year or less; presumably, these judges have not served long enough to develop strong personal relationships with other judges. I also include the percentage of judges on each court that have served for six years or more; if these judges have developed stronger friendships, they may be more collegial and less likely to dissent.

In addition to the diversity and tenure variables, the estimations include a series of judge-level, case-level, and state-level variables that might be related to judges’ propensity to cast dissenting votes. The judge-level variables include an indicator for whether a particular judge is the chief justice on the court, and a variable indicating the number of years until the judge’s next retention.⁹ These variables control for voting changes throughout a judge’s career and term.

All estimations also include various case-level variables that may be related to dissenting votes. First, I include indicator variables for whether a case is a criminal case, a juvenile case, a civil case involving the state government, or a civil case involving private individuals. Thus, the base category is nonadversarial cases, such as cases involving certification and advisory opinions. Finally, I include indicator variables for whether at least one litigant is a business, a person, or a representative of the state government.  These indicator variables control for any relationship between dissent rates and the litigants or legal issues in a case.

Next, I include various state-level characteristics that have been found to be related to dissenting votes. First, I include an indicator variable for whether judges in the state face reelection by the voters. In a previous study, I found empirical results suggesting that judges’ reelection concerns are important influences on their propensity to cast dissenting votes.¹⁰

I also include a variable that indicates whether the state has a lower appellate court, and thus, whether the court has discretionary review to hear cases. Numerous studies report that the presence of an intermediate appellate court increases dissent rates, suggesting that discretionary dockets facilitate the expression of dissent.¹¹

The state-level variables also include indicator variables for whether a court utilizes a random opinion-assignment procedure instead of a discretionary procedure, and whether voting takes place in the order of seniority. Random or rotating opinion-assignment procedures prevent judges from being rewarded or sanctioned for their opposition votes, and thus reduce the incentives for consensus.¹² In contrast, when opinions are assigned by the chief justice, opportunities for rewards and sanctions emerge. Similarly, when voting takes place in order of seniority, the most senior judges may influence junior judges, reducing the likelihood of their disagreement.¹³

Moreover, all estimations include year indicators to capture trends in the likelihood of dissent. In the probit estimations, the t-statistics are computed from standard errors clustered by case.

Table 1 reports the primary probit results. In this table, the top number in each cell is the regression coefficient, which indicates the magnitude and direction of the relationship of each variable with judges’ votes. A negative coefficient indicates that a variable reduces the probability that a judge will cast a dissenting vote; a positive coefficient indicates that a variable increases the probability that a judge will dissent. Under each coefficient is the corresponding t-statistic. Coefficients with t-statistics equal to or greater than 1.96 are considered statistically significant at the 5 percent level, meaning that there is 95 percent certainty that the coefficient is different from zero. A t-statistic equal to or greater than 1.96 is typically required to draw conclusions in hypothesis testing.

The results indicate that diversity among the judges hearing a case is significantly related to the propensity to dissent. The positive and statistically significant coefficients on the diversity variables for gender, race, age, religion, home state, and political affiliation indicate that diversity along these dimensions is associated with higher levels of dissent. These results are consistent with the Symposium judges’ belief that dissent reflects lack of cohesiveness on a court; greater diversity probably implies that the judges have fewer common values and experiences, reducing the incentives for collegiality.

In contrast, diversity in the jobs that judges held before taking the bench is negatively associated with dissent. This suggests that more diversity in professional backgrounds is associated with a reduction in the propensity to dissent. Thus, different backgrounds, at least in terms of the judges’ professional lives, do not appear to reduce collegiality on a court.

Moreover, the results indicate that the more judges with very short tenure on the court (one year or less), the less likely judges are to dissent. Similarly, the more judges with lengthy tenures on the court (six years or more), the more likely judges are to dissent. If lengthy tenure is a good proxy for strong personal relationships among judges, then these results are inconsistent with the experiences of some of the judges participating in the Symposium. Instead of lengthy tenures reducing the propensity to dissent because judges are better friends, my results indicate that lengthy tenures increase the propensity to dissent. Nevertheless, the results are consistent with studies that assert that junior judges feel pressure to not dissent against more experienced senior judges.¹⁴ Thus, even if judges build stronger personal relationships during their time on the court, their inclinations to agree with friends may be outweighed by the confidence and experience that comes with longer tenure on the court.

Several other variables also have statistically significant relationships with the propensity to dissent. Judicial elections, discretionary dockets, random opinion assignment, and seniority voting are associated with increases in dissent rates. In contrast, an approaching retention and chief justice status appear to reduce the propensity to dissent.

Conclusion

In this short Essay, I tested whether the empirical evidence is consistent with the experiences of some of the judges participating in the Duke Law Journal’s Symposium on Evaluating Judging, Judges, and Judicial Institutions. Although my results confirmed that institutional and political factors are important influences on dissent rates, I also found that the levels of cohesiveness and collegiality among judges are important. These results indicate that academic studies of judging can greatly benefit if academics consider the real-world experiences of judges.

Table 1

Notes: The table reports coefficients from a probit model. For brevity, the indicator variables for years, case types, and litigant types are not reported here. T-statistics are reported in parentheses. An asterisk represents significance at the 5 percent level.

Acknowledgments:

Copyright © 2010 Duke Law Journal.

Joanna Shepherd is an Associate Professor at Emory Law School.

The ethical questions start with whether or not a lawyer can represent an undocumented worker in employment-related litigation. In light of prohibitions on lawyers assisting in conduct that is criminal or fraudulent, the answer to the question is not necessarily evident. Model Rules of Professional Conduct Rule 1.2(d) states, “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . .”¹ In analyzing whether representation of an undocumented worker in employment related litigation assists the client in criminal or fraudulent action, it is helpful to think along a continuum. At one end of the continuum are instances in which the lawyer directly advises a client to commit a crime or fraud or directly participates in the client’s crime or fraud. For example, Rule 1.2(d) would bar representation if a lawyer advised a client to make a fraudulent conveyance or prepared documents knowing they would be used for fraudulent purposes.  On the other end of the spectrum are instances in which the client commits a crime or fraud that is so wholly unrelated to the representation that it is obvious Rule 1.2(d) would not prohibit the attorney’s representation. For example, assume a client seeks compensation under the Fair Labor Standards Act, and the state counterpart, for wages owed for completed work. In the course of representation, the client discloses to his attorney that he was previously violent toward his wife. Even assuming that his actions constituted an assault, nothing prohibits his representation in the claim for unpaid wages because Rule 1.2(d) recognizes a distinction between assisting the client in the commission of a crime or fraud and merely being aware that the client previously committed a crime or fraud.

A gray area exists in between these extremes—instances in which a lawyer’s actions can be construed as “passively assisting” the client in the commission of a crime or fraud. Consider the following factual scenarios and how they implicate the underlying policies of Rule 1.2(d).

Suppose the client enters lawfully but thereafter uses false immigration documents to obtain employment and still possesses the documents. The client seeks the lawyer’s advice and representation to recover damages and pursue reinstatement for a discriminatory termination. In this hypothetical, there are several steps the lawyer might take to comply with Rule 1.2(d). First, since it could be considered an ongoing crime to possess false immigration documents, the ethically prudent lawyer should advise the client that possession of such documents is illegal and recommend that the client no longer retain possession of them. The lawyer could then explain to the client that the ethical rules would not permit her to bring a claim seeking reinstatement based on the false immigration documents. If the client had since obtained lawful immigration status, then the lawyer could proceed with the representation, including a claim for reinstatement. If not, then she could proceed with only the claim for damages based on the discriminatory firing on the grounds that representation in a claim for damages would not further the crime of possession of false immigration documents.

In another example, assume the client enters the U.S. lawfully, but uses a fraudulent Social Security number to obtain employment and the employer thereafter fails to pay him for hours worked. Does a lawyer’s representation of the client in a wage and hour claim in this context assist him in criminal or fraudulent conduct? It is a crime to use a false Social Security number to obtain benefits but courts have found that the crime is completed when the false representation is made. Thus, representation of the client to obtain wages he is due does not directly assist him in that completed crime. There are arguments however that the representation indirectly assists the client to remain unlawfully in the United States by providing financial assistance. And, while unlawful presence in the United States is not currently a crime, it may amount to fraud. Is this type of indirect assistance that Rule 1.2(d) was designed to prohibit?

The question is best analyzed by focusing on the nexus between the lawyer’s actions and the client’s criminal or fraudulent activity. While the lawyer in this example has not directly caused the client to remain in the United States, there still exists a potential causal link between the representation and the presence. If the lawyer’s actions permit the worker to recover wages, that money may allow the worker to remain in the U.S. unlawfully or make it more attractive to do so. However, the connection between the lawyer’s actions and the client’s crime in this context is somewhat removed and in light of established legal and public policy principles should not be construed to bar representation of undocumented workers.

Our legal system is premised on the notion that the law should be knowable and that law is, by nature, public information. One of the lawyer’s roles is to provide clients access to the law so long as providing access is done within the bounds of the law. In fact, the preamble to the Model Rules of Professional Conduct talks about the lawyer’s obligation to assure access to the legal system. If Rule 1.2(d) were interpreted so broadly as to prohibit a lawyer from representing an undocumented worker in employment-related civil litigation, undocumented workers might be legally entitled to relief but unable to access the legal system.

While the legal system does recognize the integral relationship between rights and remedies, having a substantive right without the ability to enforce it is not unprecedented. Immunity from suit, standing limitations, narrower standards for private enforcement of civil rights, and legislation prohibiting access to federal courts are all examples where remedies have been restricted by the courts or Congress. However, each of these limitations, whether created by the courts or Congress, has independent rationales underlying it that do not relate to the attorney-client relationship. Rule 1.2(d), on the other hand, is a rule of professional responsibility designed to keep the provision of legal services within proper bounds. As such, the examples from other areas of law should not be determinative of the rights without a remedy argument in this context.

It could also be argued that because an undocumented worker intentionally ignores legal obligations, other remedies afforded by the legal system should be foreclosed to that individual. Like with the equitable doctrine of unclean hands, wrongdoers should not be able to avail themselves of legal protections when they have otherwise disregarded the law. On the other hand, however, the legal system is full of rights and protections, particularly procedural protections, that apply regardless of whether the litigant broke the law. For example, prisoners are entitled to challenge the conditions of their confinements as well as access the courts for general civil matters, such as divorce, and criminal defendants are entitled to a whole host of procedural protections designed to preserve their rights. Thus, a concern about clean hands would be addressed better by Congressional action that defines or limits the substantive rights of undocumented immigrants rather than through rules of professional responsibility.

Thus, while lawyers representing undocumented workers in employment-related civil litigation should be mindful of 1.2(d) prohibitions, it is unlikely that the rule would bar a lawyer’s representation of such clients.

If the ethical rules do not prohibit representation of undocumented workers in employment-related civil litigation, lawyers then confront the question of whether to protect or disclose a client’s immigration status. The lawyer’s decision to protect or disclose the information is, in the first instance, dependent upon whether or not immigration status is relevant to the underlying lawsuit. In deciding questions of relevance, courts are forced to address the interplay between immigration and labor and employment statutes and their respective policy rationales. Prior to 2002, courts confronting these issues developed a body of law that harmonized these two distinct areas of jurisprudence, finding, in many contexts, that undocumented workers were entitled to statutory protections in the workplace. This body of law shifted in 2002 when the United States Supreme Court decided Hoffman Plastic Compounds, Inc. v. National Labor Relations Board and found that back-pay for undocumented workers under the National Labor Relations Act (NLRA) was foreclosed by federal immigration policy. Since the Hoffman decision, lower courts have struggled to define the parameters of the case, and, while the jurisprudence is still evolving, many courts have limited Hoffman’s reach and found undocumented workers entitled to seek legal remedies for workplace violations under a variety of statutes.

If immigration status is relevant to the underlying litigation, the information will be discoverable unless the client is entitled to claim a privilege. Assuming immigration status is relevant, the most likely claim of privilege would be a client’s claim of privilege against self-incrimination. Both the employer and employee in an employment-related civil case brought by an undocumented worker might have reason to claim the Fifth Amendment privilege. It is unlawful to enter the country without inspection, to present false documents upon entry, or to use false documents to obtain employment. Thus, information sought from the employee through discovery or questions asked at trial could lead to criminal liability. Under the Immigration Reform and Control Act (IRCA), employers can be criminally liable for knowingly hiring undocumented workers. An employee could ask questions in discovery regarding the employer’s general practice of employee verification and the specifics of other employee immigrant workers, the answers to which could lead to criminal liability.

In light of the courts’ discretion to determine the impact that claiming privilege will have on the litigation, it is difficult to predict the precise consequences for an undocumented worker. However, lawyers should advise clients that pleading the Fifth Amendment privilege against self-incrimination might result in certain claims or evidence being barred or the action being dismissed in its entirety. Lawyers should also advise clients of the potential consequences disclosure of immigration status could have on the client outside of the pending litigation, including potential deportation, criminal charges and bars upon reentry into the U.S. Ultimately, once informed of the potential consequences, this is a decision for the client to make.

If, on the other hand, immigration status is determined not relevant to the underlying litigation, the client’s immigration status would constitute confidential information and lawyers would be obligated to protect this information unless they were permitted or mandated to disclose it. The Model Rules of Professional Conduct contain a strong obligation to keep client information confidential as well as rules designed to prohibit lawyers from counseling or assisting a client in fraudulent or criminal activities. Proposed and existing legislation that characterizes an undocumented worker’s entry, presence or work in this country as criminal or fraudulent, thus, creates a tension between the lawyer’s confidentiality obligations and the potential for permissive or mandatory disclosure.

Pursuant to Rule 1.6, all information relating to the representation,² whether it comes from the client or another source, is confidential. In the absence of implied authorization or informed consent to disclose, Rule 1.6 mandates that the information be kept confidential unless one of six express exceptions apply. In the absence of a court order, which constitutes one of the exceptions, none of the other exceptions permits the disclosure of immigration status and related client actions. There is no potential for death or substantial bodily harm; the issues do not involve the lawyer’s compliance with the rules of professional conduct; and there is no dispute between the lawyer and the client related to the representation. The remaining two exceptions involve disclosure to prevent a client from committing a crime or fraud resulting in substantial injury to the financial interests of a third party, or to mitigate damages that flow from such crime or fraud. These exceptions appear inapplicable to the undocumented worker dilemma because there is no substantial injury to the financial interests of a third party. Additionally, in order for this exception to apply, the lawyer has to be involved in the client’s crime or fraud. It is unlikely that mere representation of an undocumented worker in a civil employment matter would rise to the level of involvement contemplated by this exception.

Assuming Rule 1.6 requires lawyers to keep immigration status confidential, are there other rules that mandate or permit disclosure? Two rules address the lawyer’s obligation to disclose if a client is engaged in criminal or fraudulent acts. First, Rule 3.3(b) requires lawyers representing clients they know are intending to engage or are engaging in criminal or fraudulent conduct to take reasonable remedial measures, including disclosure of such information to the tribunal. Pursuant to that rule, only information “related to the proceedings” must be disclosed to the tribunal. The comments to Rule 3.3(b) help to define “related to the proceedings” by specifically identifying “criminal or fraudulent conduct that undermines the integrity of the adjudicative process.”³ The comments further define the term by identifying the following as conduct that would be implicated by Rule 3.3(b): “bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so.”⁴ Rule 3.3(b) is concerned with the rules of the game and the mechanics of trial, as opposed to the substance of the underlying claims.

The other relevant provision, Rule 4.1(b), requires lawyers to disclose material facts in order to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. Given that the application of these rules arises in instances where immigration status has been determined not to be relevant to the underlying proceedings, it is extremely likely that the disclosure provisions of 4.1(b) do not apply. On the other hand, the term “material” arguably could be construed more broadly than “relevant.” If this were the case, then the lawyer would have to proceed to analyze the additional limitations imposed by 4.1(b). One limitation set forth in Rule 4.1(b) is that a lawyer shall disclose otherwise confidential information only when “necessary to avoid assisting” a crime or fraud. As analyzed above, it is unlikely that mere representation of an undocumented worker in an employment-related civil matter would amount to assisting in the commission or furtherance of a crime or fraud. Further, even if the lawyer’s actions were construed as assisting the client in a crime or fraud, Rule 4.1(b) states that the lawyer may resist disclosure of material if it is otherwise protected by Rule 1.6.

To understand the contours of a lawyer’s ethical obligations, it is helpful to apply these rules to a hypothetical. Assume the client is committing an ongoing crime that is related to the employment situation. The client enters lawfully, but thereafter uses false immigration documents to obtain employment and still possesses the documents. The employee seeks the lawyer’s assistance for a discriminatory termination. The lawyer agrees to represent the client after advising the client that possession of false immigration documents is unlawful and explaining to the client that she will not seek reinstatement or back-pay in the claim. Does the lawyer have an obligation to disclose the information about false work papers to a third party under Rule 4.1(b) or to the tribunal under Rule 3.3(b)?

Possession of false immigration documents to obtain work is likely to be considered a continuing crime. Since these are cases in which immigration status has been determined not to be relevant to the underlying proceedings, the lawyer would be barred from disclosing it to third parties under Rule 4.1(b) because it is not a “material” fact. Even if it were determined that status was related or material to the proceeding, Rule 4.1 still requires there to be a relationship between the crime or fraud and the lawyer’s actions. Specifically, the lawyer shall disclose confidential information only when necessary to avoid assisting in the commission or furtherance of the client’s crime or fraud. So long as the lawyer advises the client that possession of such documents is illegal, does not seek reinstatement or back-pay, and seeks only compensatory damages, it is difficult to construe the lawyer’s representation of the client in a claim for discriminatory termination as furthering the client’s use of false papers to obtain employment. Further, disclosure to third parties under Rule 4.1(b) would be barred because the related information is confidential under Rule 1.6 and no exceptions apply.

Pursuant to Rule 3.3(b), is the use of false immigration documents to obtain work “related to the proceedings”? While the use of false immigration documents to obtain work might subject the client to criminal and civil liability, it does not, by itself, relate to the proceedings or undermine the integrity of the adjudicative process as those terms are defined in Rule 3.3(b). If the client decided to make false statements under oath or present false evidence, and the lawyer was unable to dissuade the client, the lawyer would be required to comply with the disclosure requirements set forth in 3.3(b).

Thus, in general, Rule 4.1(b) does not appear to mandate disclosure to third parties because of the Rule 1.6 limitations. Disclosure to a tribunal under Rule 3.3(b) would only be mandated if status were determined to be “related to the proceedings.” Given the meaning of “related to the proceedings” and the fact that these issues will arise only where status is found not relevant to the underlying claim, a mandated disclosure to the tribunal pursuant to Rule 3.3(b) would seem to be required only if the client took some subsequent action in the context of the proceedings that affected the integrity of the adjudicative process, such as lying on the stand or presenting false evidence. However, if the lawyer counsels the client appropriately, disclosure to the tribunal under Rule 3.3(b) should not be necessary.

Lawyers representing employers will also be affected by the immigration status of opposing parties. For a lawyer representing an employer, ethical issues are most likely to arise when the lawyer inquires about the employee’s immigration status in an attempt to intimidate the employee, either during discovery or at trial. In order to evaluate any ethical limitations, the lawyer first needs to assess whether immigration status is relevant to the underlying litigation. If the question of relevance has not been decided by a court, or if a court has decided that status is relevant, inquiry into the opposing party’s immigration status would likely be permissible and ethical. If, however, immigration status is not relevant to the underlying litigation, several ethical rules might limit inquiry by the employer’s attorney.

The first limitation stems from Rule 4.4(a) which states that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.”⁵ Where immigration status is not relevant, the question is whether the employer has a “substantial purpose” to inquire. Given the information’s lack of substantive consequence to the litigation, the inquiry likely lacks “substantial purpose” and instead is likely being used to gain unfair advantage in the litigation. Further, Rule 8.4(d) states that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.”⁶ The comments help define the parameters of this rule and state that “[a] lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice.”⁷ When immigration status is not relevant, intentional inquiry into such information may reflect bias or prejudice based upon national origin. And, if the inquiry deters the employee from proceeding with her claims, it could be construed as prejudicial to the administration of justice.

A second, but somewhat related, limitation can be found in Rule 3.4(d), which states that a lawyer shall not, “in pretrial procedure, make a frivolous discovery request.”⁸ Again, if a court has determined that immigration status is not relevant to the underlying litigation, inquiry by the employer’s attorney as to the employee’s immigration status could be viewed as a frivolous discovery request under Rule 3.4(d).

A third limitation involves the use of threats of criminal prosecution as a way to gain advantage in a civil action. This could happen expressly if the employer threatens to report the worker to police or immigration officials. It could also arise implicitly through questions about immigration status in the civil case. Under the Model Rules of Professional Conduct, a threat to bring criminal charges to advance a civil claim would violate the Model Rules if the criminal wrongdoing was unrelated to the client’s civil claim, if the lawyer did not believe both the civil claim and the potential criminal charges to be well-founded, or if the threat constituted an attempt to exert or suggest improper influence over the criminal process.⁹

In this context, since it has already been determined that immigration status is not relevant to the underlying litigation, immigration status may not be sufficiently related to the claim to insulate the lawyer from improper ethical conduct. Further, in the absence of a relationship between the threat and the underlying claim, the actions of the employer’s lawyer might be construed as extortion, which is a disciplinary offense under Rule 8.4. The Model Penal Code defines extortion as obtaining the property of another through threats, including threats to accuse another of a criminal offense. However, if the employer has an honest belief that the charges were well founded, the actions would not constitute extortion.

If the employer threatens criminal prosecution without any actual intent to proceed with such a claim, the lawyer’s actions could violate Rule 4.1, which imposes upon lawyers a duty to be truthful when dealing with others. And, even if the lawyer’s actions do not amount to extortion because they are based upon an honest belief that the charges are well founded, if his purpose in making the threat is merely to harass a third person, his actions could constitute a violation of Rule 4.4(a).

This piece identifies some of the issues that arise in the context of litigating employment-related disputes involving undocumented workers and attempts to apply the rules of professional conduct to help resolve these issues. Though at times the analysis of these issues requires an application of the professional rules that borders on the hyper-technical, a thorough and precise application of the rules ultimately results in a set of guidelines that are simple enough to be useful to practitioners. The correct application of these guidelines, and of the rules of professional conduct, will guide lawyers in the appropriate handling of information related to the employee’s immigration status.

Acknowledgments:

Copyright © 2009 Stanford Law Review.

Christine N. Cimini is Associate Professor of Law at University of Denver, Sturm School of Law.

This Legal Workshop Editorial is based on the following full-length Article:   Christine N. Cimini, Ask, Don’t Tell: Ethical Issues Surrounding Undocumented Workers’ Status in Employment Litigation, 61 STAN. L. REV. 355 (2008).

When federal appellate judges decide a case, we focus on the relevant legal materials, including the record from the trial court or agency; the challenged judgment, decision, or verdict; the precise issues raised and preserved by the litigants; the parties’ arguments raised in their written briefs and oral arguments; the applicable constitutional, treaty, statutory, regulatory, or contractual provisions; relevant case precedent; and the applicable standards of review. And, because we typically sit in panels of three, we do not act alone in considering the outcome counseled by these materials; rather, we deliberate as a group with the goal of reaching a consensus on the appropriate result.

There is no doubt that, in what I call “hard” and “very hard” cases, judges sometimes exercise discretion in order to reach an outcome that best fits with existing law. Given this reality, some commentators hypothesize that judges’ decisionmaking is significantly determined by their personal political or ideological predilections. Legal empiricists have tried to test this hypothesis through the application of statistical analysis to case outcomes. Rather than considering the reasoning contained in opinions, these scholars treat case outcomes as raw data and attempt to statistically correlate those outcomes to a judge’s presumed personal ideological and political views. These views are often identified by reference to the party of the President who appointed the judge. I find these studies seriously flawed due to conceptual and methodological problems, and I have concluded that they tell us very little about how appellate judges decide cases.¹

This past year, I examined the judgments of the D.C. Circuit reviewing administrative agency actions between 2000 and 2008. I selected this eight-year period because a Republican President was in the White House, Congress was controlled by Republicans for a majority of the eight years, and a clear majority of the judges on the D.C. Circuit were appointed by Republican Presidents. I selected administrative agency actions both because the article was prepared in conjunction with a symposium focused on administrative law and also because it is well understood that this large category of cases includes some of the most difficult and controversial appeals heard by my court. If judges’ personal political and ideological predilections played a significant role in their decisions during this period, a prime place to look for this effect would be the court’s decisions on agency actions. One might also expect to find sharp divisions among judges along political lines. That is not what our case dispositions indicate.

Rather, our case dispositions demonstrate: (1) most of the decisions involving administrative agency actions were issued without dissent; (2) judges routinely crossed over presumed political lines in the few cases in which dissents were issued; (3) “mixed panels” of the court (meaning panels consisting of judges appointed by both Republican and Democratic Presidents) routinely issued unanimous decisions resolving complex, difficult, and important administrative law cases; and (4) the full court rarely reheard a case en banc.

Some legal empiricists argue that unanimous decisions prove little, since, in their view, judges may join a decision even though they disagree with the reasoning supporting it. In other words, some empiricists claim that, due to “ideological dampening,” a judge sitting on a “mixed panel” will be less likely to vote according to his or her own ideological preferences. The problem with this claim regarding alleged “panel effects” is that it is based on rank speculation—no empiricist can prove it. Indeed, my colleague, Dean Richard Revesz, who has written extensively on empirical legal studies, has pointed out that “panel effects” can be explained by a “deliberation hypothesis,” pursuant to which judges modify their views because they are persuaded by their colleagues on the appropriate application of the law.

The low rate of dissents in appellate decisions shows that judges appointed by both Democrats and Republicans routinely agree on what the law requires, regardless of their personal political and ideological leanings. Studies indicate that about 90% of all published appellate decisions are unanimous. However, unpublished decisions constitute over 80% of the cases decided by federal appellate courts, and judges rarely issue dissents in unpublished decisions. If both published and unpublished decisions are counted, the rate of dissent in federal appellate courts would border on negligible.

Quite apart from the low level of dissents—which empirical ideologists cannot explain—it is also important to focus on the conceptual and methodological problems inherent in the empirical studies that claim to measure appellate decisionmaking.

Empirical studies often are overly informed by the attitudinal model of judicial behavior. The attitudinal model is premised on the assumption that judicial decisions are determined principally by the personal political and ideological preferences or attitudes of judges, and that judges’ written opinions are merely “smoke screens” designed to hide this reality. The attitudinal model thus fails to take account of the effect of law, precedent, and deliberations on judicial decisionmaking. Consequently, at least in its starkest forms, the attitudinal model speaks about judicial opinions solely in terms of case outcomes. The attitudinal model also assumes that individual judges’ personal views are immutable and can be accurately characterized pursuant to a simplistic liberal/conservative dichotomy. These are patently unrealistic assumptions.

Even those legal empiricists who recognize the problems inherent in the attitudinal model face unsolved methodological difficulties that render suspect all but the most modest empirical conclusions about appellate decisionmaking. Empiricists normally draw on a defined data set of cases and look at “dependent” and “independent” variables. Dependent variables concern the object of study, while independent variables are those that are hypothesized to affect the dependent variable. In studies of judicial decisionmaking, the dependent variables relate to judicial decisions, typically case “outcomes.” And in defining case outcomes, a number of empiricists rely on the “U.S. Courts of Appeals Database.”

Although this database was created to facilitate empirical analysis, it is seriously flawed in that it does not include appellate cases resolved by unpublished decisions. Over 80% of all federal appellate decisions are unpublished. Unpublished decisions typically are unanimous and involve the most straightforward applications of the law. Importantly, then, unpublished decisions offer valuable information regarding appellate judges’ adherence to precedent. For legal empiricists whose stated concern is whether judges follow the law or personal preferences, every judgment must count if the basis of appellate decisionmaking is to be accurately characterized.

The second major methodological obstacle faced by empiricists involves coding difficulties that can distort the dependent case outcome variable. There are many possible dispositions of appellate cases. However, empiricists routinely collapse these dispositions into simple binary outcomes, such as “liberal/conservative.” These characterizations necessarily simplify and distort a court’s holding, reducing to a simple often uninformative label what may be a complex and nuanced decision. For example, the court’s disposition in an administrative law case might include a judgment on standing that appears to be “conservative,” a judgment on “arbitrary and capricious” review that appears to be “liberal,” and a judgment under Chevronthat is neither. All of these nuances are lost in a binary outcome characterization.

Another problem is that only the outcomes of decisions are coded, not the content. A disposition on procedural grounds against an environmental group is treated exactly the same as a decision on the merits, although the consequences can be quite different. Whether an opinion hews closely to precedent, or decides a case on first principles, is usually ignored. Coding only for outcome treats as identical opinions that are, in many ways, quite different.

Difficulties in the coding of independent variables also cause problems for empiricists. Legal empiricists are most interested in studying the personal political and ideological preferences of judges, which are not easily quantified. Scholars consequently seek to describe these preferences through reference to proxies. The proxy typically employed is the party of the appointing President or “PAP.” Relying on this proxy, researchers assume that judges appointed by Republican Presidents are “conservative,” and judges appointed by Democratic Presidents are “liberal.”

Assuming we could agree on the meanings of “conservative” and “liberal,” it is not the case that all Republican Presidents are conservative and all Democratic Presidents are liberal. Moreover, Presidents are not solely motivated to appoint judges who reflect their politics. Commentators have noted alternative motivations for presidential appointments, including personal relationships and party building.

The link between the party of the appointing President and judicial “ideology” is even more attenuated. As Professor Gregory Sisk has explained:

The International Encyclopedia of the Social Sciences defines ideology as “one variant form of those comprehensive patterns of cognitive and moral beliefs about man, society, and the universe in relation to man and society, which flourish in human societies.” Nothing nearly so sophisticated is in operation in most empirical research conducted on the courts, whether undertaken by political scientists or law professors.²

The critically important legal influences on appellate decisionmaking, including case records, the applicable law, precedent, and judicial deliberations, pose even more difficult coding challenges for empiricists and consequently have been largely ignored. To code precedent, for example, formalized and repeatable procedures would have to be developed for identifying and numerically describing the legal issues present in a case, the scope of authoritative and persuasive law, and the effect of that law on the outcome of the case. Legal empiricists have yet to figure out how to reliably code “precedent” as an independent variable. The coding of deliberations presents an even more insurmountable task, for judges’ deliberations are confidential. What is said as judges deliberate over how best to resolve the issues before them is critical to the decisionmaking process, but is not public and therefore cannot be coded.

Persons who read about empirical studies often do not understand the coding problems underlying the use of proxies for political beliefs and ideology. Nor may they appreciate the consequences of empiricists’ failure to account for unpublished decisions, case records, the applicable law, the effect of precedent, and the impact of judicial deliberations. The problem is compounded when some empirical scholars fail to fully reveal the limitations of their studies, and instead suggest that a finding of a “significant correlation” is dispositive. In his thoughtful and measured book, Decision Making in the U.S. Courts of Appeals, Professor Frank Cross usefully explains that

[a] reader [of empirical studies] should not place undue importance on a finding of statistical significance, because such a finding shows a correlation between variables but by itself does not prove the substantive significance of that correlation. One must also consider the magnitude of the association.³

In other words, even when a regression study indicates a strong relationship, the meaning of that relationship may still be unclear. Uninformed readers do not understand this.

There are two areas of disagreement that might arise with respect to my critique of empirical legal studies. First, empiricists might point out that it is often the case in studies involving correlational analyses that researchers do not have direct access to the phenomena they want to measure and must resort to proxies. So long as there is a general correlation between the proxy and the underlying phenomenon (and so long as the proxy is not correlated significantly with the absence of that phenomenon), the imperfections merely burden the estimates with a degree of randomness. Some empiricists might also argue that a significant relationship between PAP and case outcomes is telling because any such relationship is unconnected to anything intrinsic to legal reasoning.

These claims do not hold up under close scrutiny. The hypothesis that judicial decisionmaking is influenced by the ideology of judges is remarkable only if and to the extent that this ideology is extrinsic to law. It is well understood, however, that legal reasoning partakes of political and moral judgments in a number of cases in which judges must exercise delegated or common-lawmaking authority. If one accepts that such reasoning is legal reasoning, then any statistical model that uses a measure of ideology that potentially captures this reasoning cannot tell us much about appellate decisionmaking beyond the bland assertion that judicial disagreement explains variation in outcomes. Ideology may inappropriately affect variation in legal outcomes only if (a) ideology or politics takes on an impermissible, extralegal characteristic—something that empirical scholarship has not shown—or (b) we are wrong in our view that some political and ideological questions are intrinsic to law itself.

Second, empiricists might point out that where there is no correlation between independent variables, the omission of one independent variable should have no measurable impact on the estimated effect of another on the dependent variable. There are at least two problems with this argument. First, we have good reason to believe that the quality of judicial deliberations affects appellate decisionmaking. Therefore, if an empirical model omits the deliberations variable, it will falsely suggest that the influence of personal ideology is immutable and endemic to judicial decisionmaking rather than the source of a correctable pathology that is likely concentrated in relatively discrete segments of the federal circuit courts. Second, it is wrong to assume that as ideological correlations go up, precedent correlations invariably go down. Higher correlations between ideological and political preferences and case outcomes tell us nothing about the relationship between precedent and case outcomes.

The simple truth is that, even accepting these empirical studies on their own terms—that is, with all of their inherent flaws—they predict very little about the effects of extralegal factors on appellate decisionmaking. In his book, Professor Cross concluded that, while appointment variables had measurable effects, they had “very limited explanatory power,” especially when compared to legal variables for which “there was consistently a statistically significant association that was robust to different samples and control variables.”⁴ Unsurprisingly, none of the studies refutes the claim that case records, the applicable law, precedent, and judicial deliberations are the critically important determinants of appellate decisionmaking.

Finally, I want to be clear that I do not mean to dispute the reality that Presidents often appoint judges whose views are consistent with their own. Indeed, when a court is composed of judges who come from a variety of personal, professional, and political backgrounds, this can make for better informed deliberations. My principal point is that it does not follow from the political reality of partisan appointments that judges act in a partisan way in deciding cases once on the bench. Rather, what I believe is that, on an appellate court that adheres to collegial practices, the applicable law, precedent, and the deliberative process are the primary determinants of case outcomes. Certainly, no empirical study has shown otherwise.

Acknowledgments:

Copyright © 2009 Duke University School of Law.

Harry T. Edwards is Senior Circuit Judge & Chief Judge Emeritus, U.S. Court of Appeals for the D.C. Circuit; Visiting Professor of Law, New York University School of Law.

Michael A. Livermore, who co-authored the full-length Article, is Executive Director, Institute for Policy Integrity at New York University School of Law.

This Editorial is based on the following full-length Article:  Harry T. Edwards & Michael A. Livermore, Pitfalls of Empirical Studies That Attempt to Understand the Factors Affecting Appellate Decisionmaking, 58 DUKE L.J. 101 (2009).

Although the Duke Law Journal’s article, Milberg’s Monopoly: Restoring Honesty and Competition to the Plaintiffs’ Bar,¹ reflects a lot of effort by student author James McDonald, it is a very disappointing article in terms of analysis and reliability of information. Mr. McDonald and the Duke Law Journal are entitled to express their opinions on the important issues raised by class actions, but the article misapprehends many of the realities of class action law and practice, and repeats highly pejorative rumors and speculation about class actions as though they were fact.

By way of introduction and disclaimer, I was a partner in the Milberg Weiss firm for several years, and was an editor of the Duke Law Journal many years before that. I now practice and teach law.

The following are my principal concerns with the article:

1. Milberg Weiss did not suffer an “Enron-like collapse,” (p. 506), and is alive and well.

2. The federal prosecutors never charged, nor could they ever prove, that class members were harmed by the wrongdoing (p. 506). The best they could do when the trial judge asked them whether this was a “victimless crime” was to suggest that competing class action firms might have lost business to Milberg Weiss. The underlying cases were real fraud cases, prosecuted to judgments or court-approved settlements, yielding court-awarded attorneys fees. No client or defendant was disadvantaged by the wrongdoing, which affected only internal issues among class counsel as to leadership of the cases.

3. For the reasons stated in the prior paragraph, it is a gross overstatement to say that the tactics at Milberg Weiss were “as fraudulent and unethical as any action taken at Enron, WorldCom or Tyco.” (p. 507). Stockholders lost billions in those frauds, and the wrongdoing was central to the issuers’ businesses and was widespread. The vast majority of Milberg Weiss’s lawyers were uninvolved in the wrongdoing, and continue to represent investors and others, with court approval. Indeed, the Coughlin Stoia Robbins Geller & Rudman firm, partial successor to Milberg, was appointed to represent the investors in Enron despite ad hominem attacks like those in this article made by competing class action firms seeking competitive advantage from the indictment.

4. The term “strike suit,” (p. 507), is both pejorative and highly ambiguous in meaning. Contrary to the Note’s suggestion, it is most often used to refer to cases that have little merit but are filed to obtain a quick “cost of defense” settlement. That does not seem to be what the author means because few (if any) of the cases the author refers to were settled at that low level. It does not advance understanding of class actions to use such undefined (but highly charged) terms.

5. At page 508, Mr. McDonald says that Milberg Weiss breached its fiduciary duty to clients, but again, the Note provides no backup for that statement, and the prosecutors declined to state a theory for proving it.

6. Securities fraud cases do not pit stockholders against their own company. (p. 511). Rather, they pit stock purchasers during a period of alleged fraud (often far less than all stockholders, and including many ex-stockholders) against those who made false statements (officers, directors, accounting firms, investment bankers, et cetera, plus the company). The fact that business interests attack class actions by misdescribing them this way is not a good reason for the author to parrot this language. (Derivative cases do meet the author’s description, but derivative cases and class actions are different, and a serious legal journal should be able to keep them straight.)

7. To say that “many suits settled quickly for only a fraction of their potential worth” (p. 512) is the kind of vague attack we often hear on Capitol Hill. Nearly every civil case settles for a “fraction of its worth,” the only question being whether the fraction is three-fourths, or one-hundredth. Again, the author is repeating pejorative and empty phraseology employed by those unhappy with the fact that investors can band together and try to recover their fraud losses. Professor Janet Cooper Alexander’s article suggesting that all cases settle for the same fraction of their worth reached that conclusion by extrapolating from a grand total of three cases! It is rebutted in a piece I coauthored in the San Diego Law Review. Possibly the author’s research did not find it.

8. Mr. McDonald says that Mr. Lerach and his colleagues in California (I guess that would include me) “dreamed up” new types of claims and defendants, and went so far as to sue accountants, lawyers and bankers! There is nothing exotic about suing accountants for securities fraud, and lawyers (White & Case) were defendants in the first securities case I ever worked on, years before I joined Milberg Weiss. Bankers paid most of the billions recovered in Enron, so if we dreamed it up, it was a good thing.

9. The Note says that unidentified sources with whom the author has not spoken call Mr. Lerach a “Godfather-like . . . ruthless don” who demanded “tribute” from other law firms. (p. 514 n.60). This seems like a rather reckless statement to make without sources, and seems more appropriate to the pages of People Magazine than of the Duke Law Journal.

10. As the author points out, the 1995 Private Securities Litigation Reform Act (written by people who didn’t like class actions) placed large investors in a favored position as class action plaintiffs on the theory that large investors would know whom to sue, whom to hire as counsel, and when to settle. Thereafter, Milberg Weiss was retained by many large investors—public and union pension funds. Unable to accept a positive point that does not fit into his thesis, the author adds that “rumor suggests that Milberg Weiss paid a share of its attorneys’ fees to labor pension funds it represented.” (p. 532). I do not believe this to be true, nor have I ever read it anywhere else, and in any event, this type of rumor-mongering is really quite outrageous for an academic publication.

11. Mr. McDonald concludes, based on who knows what, that even after the 1995 Act, and separate and apart from the Milberg Weiss wrongdoing, “law firms continue to be chosen [for class actions] using suboptimal criteria such as personal relationships, as opposed to quality of representation.” (p. 533). How did he conclude this? Institutional plaintiffs choose law firms the same way corporate defendants do—location, reputation, prior relationships, price, et cetera. If institutional plaintiffs are choosing the largest, best funded, best staffed plaintiffs’ firms, and often using the same firm more than once, (p. 535) what exactly is wrong with that?

12. Even when the author trips over useful information, he misapprehends it. The reason securities lawyers were puzzled over the Milberg Weiss investigation and dubious about serious charges resulting therefrom (p. 533 n.188) is that they understood that what was being investigated was basically beside the point to securities litigators focused on the merits of their cases. (See next point.)

13. More generally, defense lawyers and other sophisticated players in this field (including judges) understand that the individual plaintiff does not run a class action, his lawyer does (with court oversight), and class action law recognizes this in many ways, for example, permitting counsel to settle a case even if the class representative does not support the settlement. Picayune disputes over who the plaintiff is, and whether he will “supervise” counsel bore serious litigators to death, because they are phony issues entirely collateral to the merits.

14. The author bemoans the lack of small firms obtaining lead counsel status (p. 535), but small firms do not get the defense side of class actions either, probably because these are not small cases.

15. Why should a pension fund that litigates one class action successfully be presumed less qualified to litigate another one (p. 541)? The author believes that constantly changing plaintiffs and constantly changing plaintiffs’ counsel somehow provides a public benefit, but it would appear more of a detriment to investors. Experience counts, and certainly is not a negative.

16. The author suggests that the class action market is dominated by “a few large firms seeking fast settlements.” There is no support cited for the latter half of this assertion, and it is simply wrong. The largest and best firms in this business settle some cases fast, settle some cases on the courthouse steps, and take some cases to trial. It is the smaller firms, and the neophytes, the very firms the author wishes to elevate, who often settle fast before they bankrupt their small law firms with a case that is more challenging than they suspected when they read breezy articles about the riches of class action lawyers.

I am sorry to sound so harsh toward a student piece, but Mr. McDonald chose a controversial topic, and having waded into deep water, he should have known how to swim better than this. I have spent thirty-five years in this field defending, prosecuting, and teaching class actions, and it is sad to read some of these misunderstood points, inaccurate allegations, and outlandish rumors in a publication I once served on, which is published at an institution I care about very much.

Acknowledgments:

Copyright © 2009 Duke Law Journal.

Len Simon is a former Partner at Milberg Weiss and a former Editor of the Duke Law Journal.

This Editorial is a response to the following full-length Note:  James McDonald, Milberg’s Monopoly: Restoring Honesty and Competition to the Plaintiffs’ Bar, 58 DUKE L. J. 505 (2008). Click here for the full version.

This Article dissents from the consensus in favor of proportionality rules, but not for the same reasons as those criticizing proportionality as too strong or too weak a limitation on discovery cost. Many who criticize proportionality rules as ineffective place the blame on bad rulemaking or judicial decisionmaking;² even if those critiques are correct, this Article diagnoses the problem as a more fundamental one that better rules and decisions cannot fully fix. This Article sees proportionality limits as impossible to implement effectively: sometimes they fail to curb discovery excess or allow costly discovery on meritless claims; other times they disallow discovery that meritorious cases need.

The problem with proportionality rules is that they ask the impossible: judges must decide when discovery cost is proportional to some measure of “value” that includes both evidence value to jury deliberation and case value to the parties and society. This yields a fundamental information-timing problem: discovery disputes occur before parties marshal all the evidence, so how can courts measure the value of particular evidence, much less case merits? Further, discovery has more probative value in close-call cases than in the strongest and weakest cases (in which more evidence is less likely to affect case outcome)—an observation paralleling Professor Robert Cover’s classic 1975 argument that litigation-procedure rulings cannot truly be independent of case merits, contrary to the conventionally assumed “transsubstantive” nature of the federal rules. Case merits, though critical to discovery decisions, typically remain hidden in a cloud of uncertainty during discovery because the court is not yet able to sift fully through the evidence and arguments.

Due to the information costs (including time) of assessing case merit during discovery, courts often cannot tell which litigants’ braggadocio is cheap talk and which reflects real case merit. As a result, courts must ignore parties’ merits arguments and adjudicate discovery disputes as if all cases of a similar type in the pool (that is, cases arising under the same statute that are neither facially frivolous nor obvious winners) warrant similar discovery. Courts’ discovery rulings should be based on the merit of the claims, but merit cannot be communicated effectively; as a result, those rulings must be based on the average value of all cases in the pool. In this pooling equilibrium, the best available strategy for courts is to rule the same on all cases in a pool regardless of case merit—even though these rulings are suboptimal in the sense of yielding too much discovery in low-merit cases and too little discovery in high-merit cases. Other scholars and commentators have noted that discovery featuring pooling equilibria requires making rulings based on rough averages; this Article depicts the problem as pervasive and intractable because the rules require proportionality inquiries that demand of judges an unrealistic level of knowledge not only of the disputed evidence, but also of the case merits.

Under this analysis, the quest for better discovery limits has disappointed not because of bad decisionmaking or bad rulemaking, but because courts and parties are stuck in a pooling equilibrium. This is a fundamental information-timing problem inherent in the discovery stage of litigation: optimal evidence-gathering decisions require more merits analysis, but merits analyses require more evidence gathering.

Deferring close decisions on potentially useful but costly evidence until case merit is clearer—until meritorious cases distinguish themselves, turning a pooling equilibrium into a separating equilibrium—is one possible solution to the pooling equilibrium. Fortunately, litigation reaches just such a point—after summary judgment. In deciding summary judgment, courts allow to proceed to trial only claims a reasonable jury could decide in favor of either party, weeding out both claims with the lowest probability of merit (summary judgment grants to defendants) and claims with the highest probability (grants to plaintiffs). A case reaching trial, having survived summary judgment, has a reasonable probability of merit. Even without adopting the old theory that cases reaching trial likely have fifty-fifty odds, cases reaching trial are more likely than others to be close calls, and they certainly have higher average merit than the pool of all filed complaints. More evidence, like costly electronic data, has more value to the jury in close-call cases than in very weak or strong cases.  

Accordingly, much of the scholarly debate on discovery misses the mark by focusing on how much to limit costly discovery, such as with proportionality rules and numerical caps. Rather, the debate should focus on when in litigation to allow costly discovery. Specifically, decisions regarding costly discovery should be postponed until after summary judgment to ensure that costly discovery is imposed only in cases with a greater probability of merit. Although this proposal might enable judges to deny or postpone more discovery, any discovery denied or postponed under this proposal would probably already be denied based on judges’ proportionality discretion. Thus, the main utility of this proposal would be to explain how courts could allow more discovery—only after summary judgment—of helpful but costly evidence that courts often disallow and declare nondiscoverable. 

Nobody previously has suggested solving the dilemma of costly discovery with post–summary judgment discovery, which might seem to be a counterintuitive idea; under Federal Rule 56(f) and the case law applying that rule, summary judgment typically comes only after all discovery is completed. But there is no requirement that all discovery must precede summary judgment, which is why courts sometimes allow summary judgment motions limited to threshold questions (like a defendant’s immunity from suit Unusually costly evidence should be another exception to the rule of summary judgment coming after all discovery. Surviving summary judgment means a case is likely the sort of close call warranting more fact gathering, so courts should allow truly costly discovery, like the heavy e-discovery that they commonly disallow, only once a case survives summary judgment. No rule change is required to implement this Article’s proposal that courts revisit denials of burdensome discovery if a case survives summary judgment: existing rules give courts broad case management authority, including authority over the timing of discovery (Rule 16(c)(2)(F)), the timing of summary judgment motions (Rule 16(c)(2)(E)), and the sequencing of discovery (as the Rule 16 Advisory Committee’s note elaborates). Thus, this proposal could not only improve litigation discovery, but it could also provide a welcome answer to courts’ riddle of how to rule on proportionality without circular, premature case-merit evaluations. A new rule would be advisable, though, to minimize the risk of courts misusing the proposal to deny discovery excessively.

This Article’s analysis and proposal illustrate a broader point about economic analysis. Fitting into a line of scholarship analyzing litigation as a series of points in time when information emerges,³ this Article indicates that for economic analysis of litigation to provide accurate diagnoses and useful recommendations, it must do more than just prescribe cost-benefit comparisons; it must consider the timing-and-stages nature of litigation, such as by delving into the details of discovery, prelitigation settlement, and other events short of trials and dispositive motions.

Acknowledgments:

Copyright © 2009 Duke Law Journal.

Scott A. Moss is Associate Professor, University of Colorado Law School.

Scott A. Moss can be reached by e-mail at scott.moss@colorado.edu

This Editorial is based on the following full-length Article:  Scott A. Moss, Litigation Discovery Cannot be Optimal but Could be Better, 58 DUKE L.J. 889 (2009). Click Here for the Full Article

Partway through the route rap, tuning in and out, the cyclists remember why they came.  Details accrete, making the journey more vivid.  A catalogue or recommendation might have enumerated for them the attractions of the ride, but the experiential sequence laid out—first this, then that, watch for the other thing—gives destinations their texture.  Heralded difficulties, even for riders who think of glasses as half empty, become opportunities in the mind’s eye.  Any nasty uphill slope almost certainly brings a breezy reward.  Why are those dogs chained?  Must be something to see, a story to hear.  The big pothole, or the bad road surface?  Better to know about it now.  We’re all here voluntarily, after all; we signed up for the ride.

Planned, scripted bicycle outings have led me to reflect on how law students go through the J.D. curriculum in general, and how they receive training about their professional responsibility in particular.  On my bicycle, I am a consumer and recipient of route raps that others recite.  In the professional-responsibility classroom, it’s I who dole out the rapping.  Bicycle recitations, for me, generate what may seem an unlikely effect: even when—or is it just when, without the “even”?—a route rap warns us riders about negative contingencies like potholes, it gives us riders a boost of vigor and optimism. 

Teachers of professional responsibility who ride bikes and get route-rapped have to wonder whether the pedagogy transfers.  I think it does.  The survey class that most law schools impose as a graduation requirement can prepare students for entry into the legal profession by delving into occupational trouble.

Our line of work sure could use more vigor and optimism.  Anyone reading this far will recognize what I enumerate in the essay version of this editorial—with half a dozen footnotes duly appended—as a blight pervading American legal education, which writers describe variously as “demoralization, depression, dissatisfaction at work and in school, alienation, cynicism, heartlessness.”  These conditions stem at least in part from inside the school; self-selection does not explain all of them.  Careful regressions show that although gloomy individuals may feel lured by a J.D. program, law school environments make depression and other pathologies more intense. 

Now, if misery were necessary to the effective training of lawyers, just as boot camp is thought necessary to the making of soldiers, then we instructors (and students) would have to live with it.  Misery in law school may be traditional or familiar.  But necessary?  Route rap again: We’re tipped off about the rutted road surface at the sixteenth mile.  We nod.  We’re informed, ready to maneuver.  If someone knowledgeable had said, “You’ll be miserable, it’s awful out there,” we wouldn’t feel stronger.  It’s particulars that deliver us from malaise.

I call them pitfalls.  The term oversimplifies a bit for the sake of compactness.  What law schools should teach includes opportunities and invitations as well as metaphorical traps that can make ground give way below one’s feet.  But a focus on perils fits the rest of the curriculum and makes a class on professional responsibility comport with the standard mix of pessimism and preparation.  Just as Criminal Law tells you what you can get punished for, Corporate Finance and other business courses warn you what can happen if your client’s enterprise runs short of money, and Evidence tells you why a judge might not let you put on the testimony you want to use, Professional Responsibility or Legal Profession ought to advise you of your occupational hazards. 

Classes that emphasize the American Bar Association’s (ABA) Model Rules of Professional Conduct instead typically hew to disciplinary law.  Students learn of behaviors that can cost lawyers their licenses or otherwise provoke condemnation from bar authorities.  Because disciplinary rules are under-enforced, however, this classroom emphasis does not align with reality for most lawyers.  Several proscribed behaviors are almost universally flouted yet receive no sanction.  The clearest illustration is Model Rule 8.3, which obliges lawyers to report misconduct.  Other blackletter duties are also honored in the breach. 

A focus on pitfalls, by contrast, uses disciplinary law as only the beginning of forewarning new lawyers.  You could be sued for malpractice.  Your zealous advocacy might fulfill the elements of a crime like obstruction of justice; it might violate Sarbanes-Oxley.  Your work could be deemed ineffective—so unhelpful that your criminal-defendant client might be entitled to a new trial or the return of a plea because of its egregious badness.  If you’ve crossed some line before your case comes to trial, your assigned judge could disqualify you.  Maybe you could disqualify her: do you want to try?  Remember what Emerson said about shooting a king.  Free speech?  Welcome to a profession where your First Amendment rights are now lower with respect to the things you may say and the associations you might choose.  You have your own occupational common law of contracts, torts, crimes, property, agency, bailments, and fiduciary duty—and most of it doesn’t favor you.  Look out.

And yet, just as the nasty uphill promises a breezy downhill for the cyclist who listens to a route rap, the account of pitfalls for lawyers necessarily recites opportunities.  Every risk of loss for one lawyer presents a chance for gain for another.  You could prosecute a successful claim of malpractice.  If you are literally a prosecutor, you may charge an attorney with obstruction of justice.  Effective assistance of counsel, the Sixth Amendment right held by persons accused of crimes, could be the path your client takes to get out of prison or recover from professional humiliation.¹  Disqualification of counsel and judges can make clients and lawyers better off.  Judges’ vast “inherent powers” to control their courtrooms could be yours, should you ascend to the bench.  Maybe you’re another kind of neutral in relation to partisan disputes: you could be an expert witness, a CLE authority, a mediator, a bar disciplinarian or rule-writer . . . or a law professor, perhaps.  Pitfalls are openings to power.  Seize them.

In my view, pitfalls is the only sensible way to understand the ABA rule that all accredited law schools must instruct students in professional responsibility, or “the history, goals, structure, values, rules and responsibilities of the legal profession and its members.”²  What other pedagogical point could this requirement advance?  Bear in mind that the ABA does not like to dictate curricular content.  It does not require law schools to teach contracts, property, torts, criminal law, or any other substantive topic regarded as central to training.  It does not compel what many advocates deem central to work as a lawyer: hands-on experience in a clinic, pro bono service, instruction in public speaking, or the completion of a writing project. 

When the ABA does issue a mandate, then, it has something fundamental in mind.  People like me, deputized to carry out the mandate in a classroom, must investigate what the rule seeks to achieve.  The most fundamental goal of any professional school is preparation.  What “history, goals, structure, values, rules” and so on all have in common, for purposes of training, is the guidance they can give newcomers on how to navigate the shoals ahead. 

Thus attention to pitfalls—particularly in a professional responsibility class, but elsewhere in the J.D. curriculum too—advances what might be understood as two separate goals.  It discharges the accreditation-standard obligation to prepare students for the practice of law, and it helps to combat tendencies toward malaise and discontent that obstruct legal education.  Any pedagogy that fosters two separate goals can indicate what the two have in common and how they reinforce each other.  I suspect that malaise and discontent within law schools arise at least in part from students’ suspicions that they are not being adequately prepared, and that students miss out on stimulating, career-preparing opportunities that arise for them in law schools when they are distracted by their own unhappiness or alienation. 

Perhaps needless to add, attention to pitfalls is not a tonic that will cure every ill in the building.  Some categories of law school disaffection seem relatively impervious to the charms of a detailed route rap.  Here are three examples.  A fraction of students wish they were elsewhere: recitations and warnings about the path ahead will not alleviate much pain when an individual thinks the entire journey is a mistake.  For other students, the journey is fine but the monetary price tag is not: even when they feel engaged by the content of their classrooms, they worry about repaying their loans.  Finally pitfalls, like any other pedagogy, can be misapplied or misunderstood.  The Scout model, Be Prepared, is after all a bit risible.  Sloppy teaching or listening might misconstrue training in pitfalls as a lesson of Don’t Get Caught, a pedagogy of cynicism. 

A few words on these resistances.

The first resistance to pitfalls-teaching stems from distaste for legal education or the legal profession.  We can all think of hypothetical reasons to regard lawyers and law with revulsion.  My own experience with law-student disaffection—anecdata, if you like—suggests that the phenomenon is ambivalent and complicated.  I have never met a law student who detested without nuance the thought of enrolling for a law degree and completing the work.  It behooves an instructor to consider how to leverage and turn around discontents.

Facing up to pitfalls of this profession can feel bracing for any law student, but it gives the disaffected a particular dash.  If in students’ minds the legal profession has become a looming menace, forcing postulants into a vocation they find unattractive, then the recitation of dangers and comeuppances reveals their enemy’s vulnerability.  Maneuvers covered in the pitfalls playbook—professional discipline, malpractice actions, other kinds of civil liability, criminal proceedings, disqualifications, judge-initiated sanctions—present accounts of how a lawyer can defeat another lawyer.  Pitfalls remind students that the power they are fighting is, in part, themselves.

Pitfalls-pedagogy has a similar, though weaker, relation to students’ anxiety about their financial future.  It cannot persuade all law students that the law degree that they are pursuing makes economic sense.  No pedagogy can; the calculations that underlie opportunity cost vary too much among individuals. 

Feeling modest in relation to the size of a tuition bill, I would make only a couple of small claims about the added value of pitfalls instruction.  First, disclosure.  Students embarking on an expensive course of study have a right to know about the vulnerabilities their occupation faces.  Disclosure necessarily communicates optimistic information too: if, as I try to emphasize in class, every pitfall is an opportunity for a lawyer, then in the aggregate pitfalls build advantages: government jobs for the disciplinarians, occasional windfalls for lawyers who initiate civil actions, and non-pecuniary wealth like the satisfaction of seeing one’s client, the victim of constitutionally inadequate legal assistance, released from prison. 

Second, comparative advantage: that is, pitfalls beats the alternative in a required course.  When money is tight and an often unloved course is required, students should not have to sit through homilies.  Anyone feeling the pinch of tuition would want to receive utility in each classroom hour.  Specific factual information about occupational trouble is in my view more valuable—it is certainly scarcer—than sermonettes about legal ethics that talk about “professionalism” or the superiority of truth to partisanship.

But what about legal ethics?  Isn’t the subject of professional responsibility more exalted, more transcendent and noble, than Be Prepared or Don’t Get Caught?  Indeed it is.  Yet individuals, no matter how intellectually inclined or fond of abstraction they may be, need particulars to work through problems of professional ethics.  At least I do.  Strictures like “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest” and “[a] lawyer shall not reveal information relating to the representation of a client” (from the Model Rules) and “Act only according to that maxim whereby you can at the same time will that it should become a universal law” (from Kant) fascinate me, but when I try to think about them as guideposts for a lawyer dealing with a client or prospective client, I need more content about the stakes. 

The pitfalls pedagogy supports discussion about legal ethics as both foundation and rooftop.  An instructor can use it to open colloquy: What could happen to you if you do that?  Now, is the opposite path any better?  Once perils have emerged in sufficient detail, emphasis can shift from Is to Ought.  Tougher, I think, to maneuver from Ought to Is, in the more familiar homily mode, where the discussion lacks a damned-if-you-do pair of dilemma horns that impale our classroom protagonist.  The pitfalls technique also can wrap up discussions when they start to gather wool: You may be right to value X, but the risk-management people who sell malpractice insurance insist on not-X.  Let’s take a look at what they require.

Ethical theory and blackletter law alike commend attention to pitfalls as a mode of fulfilling the accreditation mandate regarding instruction on professional responsibility.  On this occupational road, forewarned really does mean forearmed—and, if one is lucky, exhilarated.  Lawyers with a command of occupational dangers can defend themselves against onslaughts they might face, first in the corridors of law school and then when they venture into practice.  And pitfalls-preparation enables lawyers to pursue what is good for their clients, the profession, and the public.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Anita Bernstein is Anita and Stuart Subotnick Professor of Law, Brooklyn Law School.

My thanks to faculty participants at a workshop at the University of Hawaii School of Law, especially Randall Roth, for their insights, and to my Brooklyn colleagues Joan Wexler, Ed Cheng, and Nelson Tebbe for helpful comments on a draft. My thanks also to the Brooklyn Law School faculty research program for its support. This Editorial is indebted to the foresight and creative thinking of Judge Hugh Lawson of the United States District Court for the Middle District of Georgia, who established an endowment to create and support my post as the Sam Nunn Professor of Law at Emory University (2000-07), as well as training for lawyers and law students.

This Editorial is based on the following Essay:   Anita Bernstein, Pitfalls Ahead: A Manifesto for the Training of Lawyers, 94 CORNELL L. REV. 479 (2008). Click Here for the Full Version

My Article exploring the unconscionability game aims to make three contributions.  To begin with, it can help us understand arbitration law better.  I define arbitration law as the set of rules governing when arbitration agreements are enforceable, as well as the rules allocating decisional authority between courts and arbitrators, federal courts and state courts, and federal law and state law.  In particular, the strategic framework can help us make sense of some otherwise puzzling recent trends in the evolution of allocation rules.  As I will explain, these allocation rules can be understood as tools employed by pro-arbitration courts for indirectly combating what they perceive as overly aggressive use of state-law contract defenses such as unconscionability.

Somewhat more broadly, a second objective of the Article is to increase the visibility of the FAA among those who study federal courts law.  The conflict over the FAA implicates some of the recurring themes in the field, in particular the debates over judicial federalism and parity.  Traditionally, these clashes have been most conspicuous in politically charged domains like habeas corpus and civil rights litigation.²  Certainly these old debates retain vitality there, but today the real frontline may be civil litigation that pits consumers, tort claimants, employees, and other individuals against business interests.  Dissatisfaction in some quarters with how state courts and state law handle these cases has manifested itself through federal legislation such as the Class Action Fairness Act, judicial endorsements of broad readings of federal jurisdiction, Supreme Court review of state courts’ punitive damages awards, and, as we explore here, tensions over the scope of the FAA.  Indeed, the FAA provides a particularly fertile ground for the study of judicial federalism because, as explained further below, it imposes on all courts a federal duty of fidelity to general state contract law, a complex rule of decision that almost invites trouble.

Finally, the Article aims to provide a concrete illustration of certain strategic approaches to judicial decisionmaking.  Increasingly, sophisticated models of judicial behavior are moving beyond claims that judicial ideology and preferences matter.  Those claims may be true, yet doctrine is still relevant.  In fact, doctrine can itself be a strategic tool.  Lower courts can make doctrinal choices that accomplish their policy aims while simultaneously shielding their decisions from review.  In response, higher courts can fashion a new, less pliable doctrine in order to improve monitoring and reduce the opportunity for evasion.  The system is not static but reactive—a game.

With those goals in mind, let us see how the unconscionability game has developed and how it is played.

 
I.
Resistance to the Supreme Court’s Program

The Supreme Court has interpreted the FAA expansively, such that it applies to almost all economic transactions and almost every kind of claim, from common law fraud to employment discrimination.  Its principal provisions apply in both federal and state courts to the exclusion of conflicting state law.³ Regardless of whether the Court’s interpretations were correct, they have served to transform the FAA’s reach.

The Court’s fairly rapid embrace of arbitration was a shock to the legal system, or at least portions of it.  All courts and jurisdictions were suddenly required to enforce predispute arbitration clauses in almost every kind of contract, notwithstanding any state common law or statutory law to the contrary.  But while the Supreme Court can change the law, it cannot necessarily change other courts’ preferences.  Some courts, especially certain state courts, continue to view arbitration with skepticism, most often when it comes to cases involving consumers or employees who have signed nonnegotiated arbitration agreements embedded in standard form contracts.  (Their concerns may or may not be justified, but my aims here are simply explanatory and positive.  I do not here engage with the large literature debating whether arbitration is beneficial for consumers and employees.)

Because Supreme Court doctrine has moved so much faster and further to embrace arbitration than have some other parts of the judicial system, there is a sort of hydraulic pressure in the system that will seek release through whatever channels still exist for invalidating, or at least limiting, arbitration agreements.  The main channel that remains open to courts wary of the increasingly pervasive use of arbitration is the proviso in section 2 of the FAA stating that arbitration agreements must be enforced except “upon such grounds as exist at law or in equity for the revocation of any contract.”⁴  A state or federal court can invalidate an arbitration agreement under generally applicable state contract principles, such as unconscionability, but only if it uses those principles evenhandedly, treating arbitration agreements like any other contract; discrimination against arbitration is prohibited.⁵

Demonstrating the potential of the section 2 proviso, the last several years have witnessed a surprising burst of rulings invalidating arbitration clauses as unconscionable, especially in state courts.⁶  These rulings are surprising because unconscionability is usually regarded as an improbable defense that, despite some venerable precedents that appear in casebooks, rarely succeeds.⁷ These rulings typically do not attack arbitration per se—after all, arbitration is now favored as a matter of federal policy—but rather focus on details of contract formation or particular aspects of an arbitration clause, such as restrictions on relief, disadvantageous arbitral procedures, or bans on class-wide proceedings.  California was in the vanguard in employing unconscionability and related doctrines to invalidate arbitration clauses, but one can now find such cases in many places.

The newfound popularity of unconscionability is in part explainable by the simple fact that it is one of the few tools still available to courts that wish to limit the impact of arbitration.  But there is more to it than that.  Another of unconscionability’s virtues is that it provides at least the opportunity for furtive manipulation.  After all, unconscionability is a slippery doctrine; it is extremely difficult to tell if a decision invalidating an arbitration agreement on unconscionability grounds obeys the FAA’s rule of impartial treatment.  This difficulty creates room for courts to misapply, or perhaps even manipulate, state contract doctrines so as to nullify arbitration agreements while simultaneously insulating their decisions from effective scrutiny.

To express matters in somewhat more formal terms, a court wishing to strike down an arbitration agreement has a choice of various instruments.  The chosen basis for the decision can affect the likelihood of review and reversal by a higher court, even when holding the decision’s bottom line constant.  Lower court judges realize this, and so they can manipulate their grounds of decision both to advance their preferred outcomes and to make review of their decisions more costly.  This is the essence of the “strategic instruments” approach to judicial behavior.⁸

In the FAA/unconscionability context, we can posit two competing “decision instruments” for invalidating arbitration agreements.  The first instrument, which is really a collection of slightly different possible rationales, would be a decision of a broad or categorical nature.  Examples include rulings that arbitration agreements abridge the state constitutional right to jury trial, are per se (or presumptively) unconscionable in certain contexts (such as employment), or are inapplicable to certain types of statutory actions (such as consumer protection claims).  The second instrument would be a more contextual ruling to the effect that the particular arbitration agreement at hand is unconscionable (or is adhesive or contravened the nondrafting party’s reasonable expectations, etc.) and so need not be enforced as a matter of generally applicable state contract law.

Although a decision that holds an arbitration clause unconscionable based on a particularized examination of the contract and the circumstances of its formation will have somewhat less precedential impact than would a categorical rule, it has countervailing advantages.  For one, its fact-intensive character makes it opaque to a reviewing court.  When the reviewing court is a federal court, there is the additional difficulty that scrutinizing the ruling may require intimate knowledge of state law.⁹

Beyond opacity, there is another problem that complicates review, one that springs from the substantive law of the FAA.  Recall that the FAA allows courts to invalidate arbitration agreements on the basis of unconscionability, but only if they use unconscionability evenhandedly rather than discriminating against arbitration.  We are accustomed to seeing federal courts conclude that a state court has erred on some matter of federal law; but suppose a state court quotes the proper federal standards and claims to generate an evenhanded application of unconscionability law that strikes down an arbitration clause.  Rejecting the state court’s holding is tantamount to impugning the state court’s honesty, an act that contravenes the etiquette of judicial federalism.  Thus, review of an unconscionability ruling, particularly one from state court, is expressively difficult in addition to technically difficult.

The fact that unconscionability rulings are relatively insulated from review creates an incentive to use them to evade the FAA’s strictures, but are courts taking advantage of that opportunity?  There is reason to think that some are.  To begin with what we might call circumstantial evidence, there is motive.  As discussed above, some courts are not nearly as enthralled with arbitration as is the Supreme Court.  Whether because they seek to honor state statutes, to follow their constituents’ wishes, or simply because they believe arbitration is bad policy, these courts have cause to oppose it.  Further, some judges have basically admitted that they try to circumvent the FAA, and other judges have accused their colleagues of the same.¹⁰  While opportunity, motive, and anecdote might not add up to a conviction, there is also some more systematic evidence that, while limited in several ways, is highly suggestive.  At least two researchers have found that unconscionability challenges to arbitration agreements succeed at abnormally high rates, and they conclude that the reason is that courts apply unconscionability analysis differently in this context.¹¹

In the end, though, producing empirical proof of discrimination, which is extremely difficult, is almost beside the point.  Pro-arbitration courts will evolve doctrine in response to what they believe they are seeing, so the suspicion of manipulation is enough.  And there are at least reasonable grounds for suspicion.

 
II.
Responsive Strategies

I am certainly not the first person to notice the rise of unconscionability challenges to arbitration agreements.  The new popularity of unconscionability and allied doctrines has been aptly described as an attempt, using one of the few tools remaining, to put the brakes on the pro-arbitration trend and to restore some sort of balance.¹² There is much truth in that view, but I believe it is incomplete.  Any balance or equilibrium may be only temporary, for pro-arbitration courts will respond to the new tools being used to limit arbitration.  Sophisticated resistance to arbitration is just one side of the story—one move, but not the last.

What responsive moves are available to pro-arbitration courts like the United States Supreme Court?  There is, of course, the direct approach.  The Supreme Court could grant one of the many petitions for certiorari charging discrimination against arbitration and deem the decision below a manipulation of state law that violates the FAA.  No doubt the Supreme Court has the power to do so:  Although it ordinarily does not review questions of state law, here federal law mandates a duty of evenhandedness in applying state law.  But that is why review of such cases is so expressively taxing, for it is tantamount to impugning the lower court’s integrity.  Indeed, to a significant degree the target courts themselves control whether the reviewing court can assume the pose of the polite corrector of good-faith error.  A sophisticated state court—one that sets forth the governing law correctly, expresses the appropriate pro-arbitration sentiments, and the like—can make things very uncomfortable.

Admittedly, such an attack on a state court’s integrity would not be completely unprecedented.  Although we treat state courts as supreme and unreviewable on matters of state law, we also understand that a misapplication or distortion of state law can in some cases defeat federal rights.  So the federal courts can in certain cases test the bona fides of a state law ruling.  But this is the exception, the rare exception, and it has tended to occur during periods—such as the civil rights era—when there was much reason to suspect the integrity of certain courts.  Thus, when Chief Justice Rehnquist cited some of those extraordinary cases in his Bush v. Gore concurrence—in which he concluded that the Florida Supreme Court’s interpretation of its state election laws “distorted them beyond what a fair reading required”¹³—Justice Ginsburg pointed out the expressive stakes involved:

THE CHIEF JUSTICE’s casual citation of these cases might lead one to believe they are part of a larger collection of cases in which we said that the Constitution impelled us to train a skeptical eye on a state court’s portrayal of state law. . . . [T]his case involves nothing close to the kind of recalcitrance by a state high court that warrants extraordinary action by this Court.  The Florida Supreme Court . . . surely should not be bracketed with state high courts of the Jim Crow South.¹⁴

Given the historical connotations, one can see that a Supreme Court decision rejecting a state unconscionability holding as a discriminatory manipulation of state law would find itself in a rather remarkable category.  Issuing such a ruling would arguably reveal something about the Court’s values, and it would not be flattering:  namely, that it thinks state discrimination against arbitration merits the same extraordinary response, in terms of judicial federalism, as discrimination in the Jim Crow South.

The technical and expressive difficulty of attacking perceived manipulation of unconscionability head-on may explain why the Supreme Court—never shy about enforcing its pro-arbitration preferences—has been surprisingly hesitant to take such a case, letting dozens of petitions for certiorari go by, despite the pleas of prominent Supreme Court litigators and pro-business amici demanding action.  The direct approach to policing compliance with the FAA is not the only approach, however.  Another course is to develop new rules about the allocation of decisional authority between various courts or between courts and arbitrators.  Here I will describe just one allocation strategy.

Consider the question of who—court or arbitrator—decides certain types of challenges to arbitration agreements.  There have long been rules about this subject, including the so-called “separability doctrine” associated with the Prima Paint case.¹⁵  In that case, one party to a contract dispute claimed that the contract had been formed through fraudulent inducement and thus that the entire contract, including its arbitration clause, was unenforceable.  The Supreme Court decided that the challenge to the contract should be resolved by the arbitrator.  This has come to be known as the separability doctrine because an arbitration clause is regarded as separate from, and not necessarily infected by defects in, the container contract.

For a pro-arbitration court suspecting that judicial manipulation of contract defenses is afoot, one could see why aggressive use of separability and other rules shifting authority to arbitrators would be attractive.  There is no need to question hard-to-scrutinize state-law rulings if one takes away, as a matter of federal law, the authority to issue them in the first place.  The allocation rule is relatively easy to monitor.

There are signs that pro-arbitration courts are following just this strategy.  The Supreme Court has not decided an unconscionability case, but a few of its recent decisions have shifted more decisionmaking authority to arbitrators.  A 2006 case, Buckeye Check Cashing, Inc. v. Cardegna, involved a dispute arising from a payday loan agreement that was allegedly void and even criminally usurious under state law.¹⁶  The Florida high court refused to enforce the arbitration clause in the parties’ contract, concluding that the entire contract was a nullity, but the United States Supreme Court reversed and sent the dispute to arbitration.  The Court concluded that it was of no moment that the contract was deemed, as a matter of state law, void ab initio.  The Court’s decision to send the matter to arbitration is quite strange to many people, inasmuch as the decision finds a valid agreement to arbitrate disputes in a null and criminal contract.  But regardless of what one thinks of the outcome, the important point for our purposes is that the Buckeye rule makes these types of cases easy for a federal court to decide in the sense that they only require the application of the federal rule of separability.  No foray into slippery state-law distinctions between voidness, voidability, and other categories is required, for such distinctions are henceforth irrelevant.

The lower federal courts, which lack the luxury of simply denying certiorari, have been forced to deal with unconscionability more directly.  Although the case law on who decides unconscionability challenges is conflicting and continues to develop, there are signs of a trend toward shifting more authority to arbitrators.  The basic point of such cases is simple but powerful:  It is irrelevant that state law deems some limitation on arbitral relief unconscionable if, as a matter of federal law, the arbitrator is supposed to rule on that argument.  Such doctrinal changes are bizarre in some ways, but they do make sense as a way for pro-arbitration courts to ease monitoring of compliance with federal law.

 
III.
A Role for Congress?

My analysis would not be complete without mentioning the potential role of one other player:  Congress.  Congress has the power to rewrite the rules.  Legislation exempting consumer and employment disputes from arbitration would largely eliminate the tensions that generate the unconscionability game, as there is little opposition today to arbitration between sophisticated commercial parties.  Such legislation has been proposed but, in the face of strong opposition from business interests, has not yet progressed far.¹⁷

It is unclear whether Congress will ever come off the sidelines, but even if it does not do so, it can still exert an influence.  Just as inferior courts shape their behavior with an eye toward the anticipated responses of superior courts, the Supreme Court might shape its behavior with an eye toward the anticipated responses of its superior.  Sophisticated Justices would want to avoid provoking Congress into amending the FAA in a way that would harm the Court’s long-term pro-arbitration program.  Unconscionability might operate as a sort of safety valve that makes arbitration politically sustainable.  It permits courts, on a case by case basis, to respond to the most compelling inequities.  At the same time, the mere risk of an unconscionability challenge may prevent drafters of arbitration clauses from overreaching too much.  A sophisticated Supreme Court would tend to be careful about closing off this safety valve.

 
IV.
Conclusion

I have attempted to explain recent and ongoing developments in FAA case law as the result of a strategic interaction between various players with divergent preferences regarding arbitration.  As the Supreme Court has shut off most means of resisting arbitration, courts skeptical of arbitration have increasingly turned to unconscionability doctrine.  The flexibility of unconscionability analysis creates the potential for courts that disfavor arbitration to manipulate state law to limit the FAA’s reach.  This potential noncompliance then drives further responses by pro-arbitration courts like the Supreme Court, including development of new doctrines and allocation rules that ease monitoring by shifting authority from state courts to federal courts and from courts to arbitrators.

Although I believe that arbitration law is an increasingly important topic—and, in particular, that it provides a fertile field for the study of many of the problems that have long interested federal courts scholars—my aims in the Article go beyond the FAA in particular.  Few people today deny that judges’ policy preferences affect at least some of their decisions, but doctrine is not irrelevant.  Indeed, preferences and doctrine need not be forces that pull in opposite directions.  Some of the most interesting recent work in the political science of the courts attempts to accommodate sophisticated understandings of doctrine, casting it as not merely a potential constraint on preferences but also a tool for implementing them.  I have hoped to provide a concrete illustration and contextualized elaboration of such a model of judicial behavior, in which emerging doctrinal changes do not reflect only legal considerations, nor just preferences, but rather respond to the ongoing problem of monitoring lower courts.  Further work at this intersection of legal and political analysis should prove fruitful.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Aaron-Andrew P. Bruhl is Assistant Professor, University of Houston Law Center.

This Editorial is based on the following full-length Article:  Aaron-Andrew P. Bruhl, The Unconscionability Game: Strategic Judging and the Evolution of Federal Arbitration Law, 83 N.Y.U. L. REV. 1420 (2008).
Click Here for the Full Article