Yet, for several reasons, the patent “underdevelopment” problem arguably applies to a large share of potentially valuable inventions. First, patent law encourages inventors to file for patents early in the innovation process. At this stage, especially for modern technologies, an invention is usually not in the form of a finished product ready for sale, and its commercial success is highly uncertain. Instead, the inventor must undertake costly and risky development and testing to transform the invention into a commercially viable product. This uncertainty encourages inventors to delay commercialization in the hopes of reducing risk—for example, by taking advantage of emerging complementary technologies that may lower production costs more than any forgone profits. Indeed, many of the twentieth century’s greatest inventions, including the television, radio, radar, and penicillin, were not commercialized until decades after they were invented. In some instances, the uncertainty is so great that the commercialization of a worthwhile invention never occurs.

Second, the Patent Office and courts tend to countenance expansive “claims”—namely, the inventor’s legal rights—which encompass far more than what the inventor actually discloses in a patent. Although broad claims can reduce commercialization costs by allowing the original patentee to coordinate development efforts among multiple firms, often this coordination fails to occur because of high bargaining costs or strategic behavior, which can stymie the independent commercialization efforts of more efficient firms. Because early patent grants reward the best inventor, but not necessarily the best commercializer, broad claims can impose unwarranted burdens on third-party commercializers. Rampant defects in patent examination, licensing, and litigation often make these undue costs quite large and diminish commercialization.

Third, patent law is primarily designed to induce invention; any protection it provides to commercialization is mostly an afterthought. The dominant “reward” theory of patenting, which undergirds much of today’s law, perceives minimal need to protect risky and costly post-invention development and commercialization efforts. Thus, reward theorists view the patent system as an unfortunate “second-best” compared with one in which all inventions are immediately placed in the public domain. The upshot is that patent law confers direct encouragement to inventors who create and disclose intangible specifications, but not necessarily tangible products.

Fourth, although there has been limited empirical study of the issue, in a 1998 survey of 133 companies worldwide conducted by the British Technology Group, approximately 40% of the patents held by the respondents were uncommercialized. Nonetheless, these companies reported that 32% of these patents were either commercially “very important” or “quite important.” For engineering companies, the figure increased to 40%, and for biosciences and pharmaceutical companies, to 34%. These results are consistent with a European Commission-funded survey that focused on “important” patents, which found that 38% of the patents were never commercialized.

Several scholars have suggested various reforms to improve patent law’s commercialization incentives. One approach, which follows Ed Kitch’s influential “prospect” theory of patents, proposes strengthening patent rights—by, for example, broadening patent scope or lengthening patent terms—so that patentees can “internalize” more of the positive “external” benefits generated by their inventions. Although this view is tempting, reward theorists have rightly criticized it and related proposals as dampening competition and impeding follow-on technological development. Moreover, contrary to one of prospect theory’s core claims, in many cases such a property-rights approach can retard commercialization—particularly when third parties are better commercializers than the inventor. Not only can broad and strong patents enable inventors to exploit defects in the litigation process to inefficiently “hold up” commercializers, but they can also prevent commercializers from “designing around” the original invention and engender “wasted” costs by inducing too many firms to enter the proverbial “patent race.”

Another proposed route to improving commercialization incentives is to modify the reward theory to encourage patenting later in the innovation process, such as by requiring patentees to build a prototype before filing. Although a modified reward theory would improve upon many wanting aspects of today’s patent system by forcing inventors to engage in at least some commercialization in exchange for a patent, it could significantly diminish ex ante incentives to invent and could lead to unnecessary duplicated development costs.

Neither prospect theory nor a modified reward theory can practically achieve an ideal balance because both attempt to “commercialize” traditional patents designed to spur the creation of new and non-obvious knowledge, rather than to prompt the manufacture and sale of new products. Therefore, instead of trying fine-tune patents not originally designed to promote commercial activity, society should adopt a novel policy lever—a “commercialization” patent—granted in exchange for a commitment to commercialize a product not available in the marketplace.

Clearly, the burden of proof for adopting a new type of intellectual property right is high. Patent scholars have generally been opposed to new rights, viewing them as unnecessarily diminishing competition, being too costly and difficult to implement, creating needless complexity, and encouraging legislative rent-seeking. With these hurdles in mind, I sketch a solution and briefly explain why it overcomes these concerns. (Of course, a detailed proposal is ensconced in the Stanford Law Review.)

Commercialization patents could be filed for the same types of product inventions as those within the scope of traditionally patentable subject matter. Only a product that is “substantially novel”—that is, substantially different from a product currently available in the marketplace would qualify for a patent. The commercialization patent would need to be practiced no later than three years after filing. Unlike a traditional patent, which can broadly claim many embodiments, a commercialization patent’s claims would be limited to the product specifically disclosed in the specification and its substantial equivalents.

In contrast to previous proposals for new forms of intellectual property rights, a commercialization patent would not only provide a negative right to exclude others from making and selling the same or equivalent products, but would also include an affirmative equitable and legal right to its holder to make and sell the product. First, the affirmative equitable right would give the commercializer absolute immunity from any injunctive remedies otherwise available in infringement suits by traditional patent holders. Second, any traditional patent holder would be limited to a low, but fairly reasonable, fixed royalty rate it could win at suit, e.g., 1-2%, and would be subject to damages apportionment for multi-component products.

In order to mitigate the potentially harsh consequences of affirmative rights, a commercialization patent could only be filed after a traditional patent covering the product goes uncommercialized for three years after issuance, extended for any regulatory or other unavoidable delays. This window would provide sufficient lead time and a strong incentive to a traditional patent holder to commercialize its invention. Finally, because commercialization cycles tend to be quick, commercialization patents would be of short duration—e.g., five to eight years from filing—though longer terms may be appropriate for a handful of industries.

Such a patent would substantially increase the commercialization of inventions without unduly decreasing competition or imposing dynamic inefficiencies in the system. Because commercialization patents would provide partial immunity from suits by traditional patentees, they would significantly weaken the rights of non-commercializing patentees, reducing transaction costs and pernicious “deadweight losses” from patent licensing and litigation. The administration of a commercialization patent system would not be costly and complex, could reduce the number of traditional patent filings, and could provide significant additional revenue to the Patent Office to improve traditional patent examination. In particular, a commercialization patent would be drafted in the same way as a traditional product patent and include the same kinds of claims. Review for subject matter, utility, enablement, written description, substantial novelty, best mode, and the like would be the same or similar to that for a traditional patent. For similar reasons, judicial oversight of commercialization patents would not be terribly costly. Although the assessment of whether a commercialization patentee sufficiently “worked” the patent may initially be difficult, a “sham sale” doctrine would quickly develop and root out this problem. Finally, because commercialization patents would apply in the same manner to all patentable subject matter, the incentives for industry-specific lobbying of Congress to specially tailor the commercialization patent statute would be minimal.

In sum, commercialization patents of the sort proposed here would fundamentally alter the patent system’s single-minded approach to a multi-faceted problem. Surely, elucidation of the details of commercialization patents requires testing, empirical study, and refinement. Yet, by decoupling the traditional patent into an invention patent, granted in exchange for the disclosure of new and non-obvious knowledge, and a commercialization patent, granted in exchange for the manufacture and sale of a substantially new product, the patent system could offer more optimal incentives for invention and commercialization alike.

Acknowledgments:

Copyright © 2010 New York University Law School.

A lengthy list of colleagues and students who provided invaluable comments and suggestions, as well as copious footnotes for the assertions made herein, can be found in the aforementioned article. This work was funded by a grant from the Ewing Marion Kauffman Foundation.

Ted Sichelman is an Assistant Professor of law at the University of San Diego.

This Legal Workshop Editorial is based on the following Law Review Article: Ted Sichelman, Commercializing Patents, 62 STAN. L. REV. 341 (2010).

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.

The present system made sense fifty years ago, but it no longer does. In the 1960s the Supreme Court employed two related strategies to force the states to bring their criminal justice systems into compliance with the fundamental ideals of equality and fairness guaranteed by the U.S. Constitution. First, it incorporated, one by one, most of the specific constitutional provisions from the Bill of Rights into the Due Process Clause of the Fourteenth Amendment, thus obligating states to honor those provisions in state criminal cases. State defendants could seek relief in the Supreme Court for violations of those incorporated federal rights by applying for a writ of certiorari from their state judgments. The second strategy was to expand the availability and scope of federal habeas review, enlisting the lower federal courts to supplement certiorari review in order to enforce these new constitutional rights.

The Court adopted this approach not because it was the best one but because, in the absence of federal legislative action, the Court had no choice. State judges were resisting enforcement of recently incorporated federal criminal procedure rights, and most states lacked effective postconviction review processes to address nonrecord constitutional violations such as jury selection error and prosecutorial misconduct. Expanding federal habeas review provided an incentive for the states to improve their own postconviction review processes and sent clear notice to defiant state judges that they could not deliberately ignore federal law.

Our current multilayered criminal justice system thus originated from a kind of historical accident, the result of institutional inactivity (by Congress) and institutional constraints (on the Court). Retaining that system might make sense today if the problems that gave rise to it persisted, but they do not. Retaining the current system might also make sense today if it represented an effective and efficient way of enforcing the Constitution’s commands in individual cases, but it does not.

The findings of an empirical study of federal habeas litigation completed in 2007 suggest habeas is an expensive but almost completely ineffectual remedy. For the vast majority of the more than two million people now incarcerated in America, the Great Writ is a pipe dream.

Most state defendants convicted of felony offenses have no practical access to federal habeas review, because habeas is limited to those “in custody” when they file, and prisoners must exhaust their state appeals and postconviction proceedings first. As a result, almost 30% of all noncapital habeas petitions were filed by inmates serving life sentences, even though only 1% of all prison sentences are for life, while only 12% of all noncapital habeas petitions were filed by those serving sentences of five years or less, even though that group represents the majority of those sent to prison.

Moreover, except in capital cases, those inmates who do manage to obtain federal habeas review can expect to lose. At the current rate found by the study, only an estimated sixty-five of the more than 18,000 petitions filed each year by noncapital petitioners will eventually be granted by district courts.

The study cannot tell us whether the incredibly low rate of habeas grants reflects a comparably low frequency of meritorious claims or whether there are many more habeas petitioners who deserve relief but do not obtain it. Yet any theory that the threat of habeas is effectively deterring constitutional error is implausible: Most state criminal defendants are short-termers with no access to federal habeas, a point that cannot possibly be lost on police, lawyers, and judges. And even in those cases where the defendant is likely to be in custody long enough to file a habeas petition and has not waived his rights via a plea bargain, grants of habeas relief are so infrequent, and so delayed, that they will make little if any difference to state actors in noncapital cases. Even a rare grant for procedural error will require only that the state conduct the trial, plea, sentencing, or appeal over again. Finally, any police officer, attorney, or judge responsible for the error, even if not long gone, will suffer no personal consequence if a writ is granted. So if the low grant rate in federal habeas cases actually reflects a correspondingly low number of state constitutional errors that require correcting, it cannot be the result of any significant deterrence produced by federal habeas review. And if the state courts are doing a good job on their own, independent of any habeas deterrence, then habeas is a colossal waste of resources.

Consider now the alternative argument: that the low habeas grant rate reflects the current failure of habeas courts to provide needed relief to deserving state prisoners. The best way to fix habeas, many scholars argue, would be to remove procedural restrictions on habeas relief and provide counsel so that prisoners can more effectively litigate their federal claims in a federal forum. But increasing the amount and slowing the pace of habeas litigation even further would be a political nonstarter without some corresponding benefit to the states. More fundamentally, it would not address the inherent limitations discussed above—that habeas is largely inaccessible to most of those convicted of a crime in this country and that it has virtually no deterrent impact on the particular state actors who are to blame for the violations.

Relying on habeas to enforce the Constitution also ignores another problem inherent in federal habeas: There is no easy way to deter the filing of meritless habeas claims without also discouraging potentially valid claims. The danger that at least some deserving constitutional claims will be swept away by the overwhelming flood of meritless ones is substantial.

Not only is habeas futile, it is expensive for both federal and state taxpayers. One out of every fourteen civil cases filed in federal district court is a habeas challenge by a state prisoner. Most of these cases are not summarily dismissed. Instead, the study found that litigation on procedural issues was commonplace before disposition, and noncapital habeas cases averaged eighteen docket entries per case, representing more than a third of the average number of docket entries in the capital cases included in the study. In most cases the state must write a motion or answer in response to the petition, which the study found included four different claims on average, many of which were amended, requiring a second response from the state. Processing the handwritten pleadings of pro se prisoners is more costly than the efficient electronic filing now required in other cases. Furthermore, half the cases were referred to magistrates for disposition, adding a duplicate layer of opinions and briefing before the case was completed. With more than 18,000 habeas petitions filed each year, states can count on winning almost every one of these cases, but they can also count on a significant expenditure of state dollars to defend them.

***

Any system of justice that expends so much effort to produce so little benefit deserves reconsideration. There is a better approach. We propose first that Congress amend the federal habeas statute so that habeas courts retain jurisdiction over only three categories of constitutional claims raised by state prisoners in custody pursuant to a state criminal judgment.

The first category would provide review of constitutional claims that have been rejected or refused in state court but are accompanied by a compelling showing of innocence. Cases of wrongful conviction justify the expenditure needed to allow habeas courts to provide a last-chance remedy. This category would be limited to cases in which the petitioner is able to bring forward newly discovered evidence to rebut his conviction.

A second category would allow for the postconviction enforcement of new constitutional rules that have been held by the Court to apply retroactively to cases already final on direct appeal. Without access to federal habeas review in such cases, a defendant whose direct appeal had concluded by the time the new constitutional rule was declared would be unable to benefit from the rule if the state courts provided no forum for the claim.

The third category would preserve habeas review in capital cases, allowing for the adjudication of any constitutional objection to the petitioner’s capital sentence. The proper scope of habeas in capital cases should be resolved separately from noncapital cases, given the fundamental differences between the two types of cases. Because the Court is continually changing the Eighth Amendment law regulating state capital cases, parties continue to need access to the lower federal courts in order to to work out the implementation of those limits.

Our proposal would dramatically reduce the amount of noncapital habeas litigation by state prisoners. But the point of reducing wasteful federal habeas litigation is not simply to conserve scarce resources. The point is to enable the reallocation of those resources in support of more effective means of ensuring compliance with constitutional rules. Congress should devote whatever can be saved by cutting back on habeas review—as well as additional funds—to a new federal initiative aimed at helping the states prevent and correct constitutional violations in their own courts.

***

Providing defendants with an effective criminal defense at the trial and appellate levels is a far better means of guaranteeing constitutional rights in criminal cases than post hoc habeas litigation, but state criminal defense systems are in crisis. Case-by-case litigation has failed, and will continue to fail, as a means of ensuring the right to counsel in noncapital cases. As a chorus of commentators has observed, the scant postconviction reversals under Strickland v. Washington¹ have had little or no impact on the pervasive pressures on state and county legislative bodies to limit funding for defense services. Systematic underfunding of criminal defense representation in the state courts persists, resulting in repeated and widespread breakdowns in defense representation in many states. This is a problem that habeas is woefully inadequate to address.

We support the creation of a new Federal Center for Defense Services, along the lines of the one first proposed by the ABA in 1979, that could administer matching grants and other financial incentives for state and local governments to improve their efforts to provide defense representation. Similar federal incentives have been useful in encouraging states to take on other criminal justice reforms, and existing state-level commissions on defense representation have been successful in using matching grants and other financial incentives to encourage meaningful funding increases at the local level. This progress, along with recent successes in some jurisdictions in legislating standards for parity of resources for prosecution and defense attorneys, suggests that the effort can work on a larger scale.

The new federal center would also be well situated to conduct comprehensive empirical research to identify the characteristics of effective defense representation on both a systemic and an individual level and to encourage reform through dissemination of that research. Another goal could include drafting standards for defense representation based on “best practices” research.

To be sure, the proposed shift in the federal role will not succeed if Congress simply cuts the budget of the judicial branch by the amount that it projects to save by limiting federal court habeas jurisdiction and simultaneously offers those dollars to the states with few strings attached. The fiscal tradeoff is but one aspect of the more comprehensive political shift in focus that is required from the back end to the front end of the criminal justice system.

But two features of our proposal make it a realistic possibility. First, our proposal does not require Congress to mandate that every state change its defense representation systems overnight, nor does it mean that Congress should condition the curtailment of habeas review in noncapital cases on a particular state’s current compliance with federal standards for improvement of defense representation. Instead, we propose a voluntary renewable grant program that would allow compliance standards to evolve gradually, as “best practices” develop based on innovations in individual states. Lasting systemic changes in state criminal justice cannot be legislated into existence overnight. Model alternatives could be allowed to emerge in a few states, then evaluated and modified for varying local conditions. At least when it comes to noncapital cases, so little benefit would be lost by cutting back on habeas review, and so much more could be gained by any shift of those resources toward encouraging and supporting improvements in state defense representation, that we need not adopt a quid pro quo arrangement that could pose an unwarranted political barrier to state reform efforts.

Proposing such radical restrictions on federal habeas review could, however, lead a state to curtail its own system of appellate and postconviction review in response, leaving state prisoners with no avenue to pursue relief for constitutional claims. The Due Process Clause would not prevent this, but if this was the state’s response, the Suspension Clause should bar the implementation of the drastic habeas restrictions we propose in that state.

The Suspension Clause, ratified in 1789 as part of the original Constitution, provides, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”² Although the Court has never squarely held that the Clause limits the suspension of federal habeas for state prisoners convicted of a crime, the Fourteenth Amendment, which broadened both the definition of federal citizenship and the reach of federal law, arguably extended the protections of the Clause to those incarcerated after conviction by the states.

Substantive restrictions on the scope of habeas can survive a Suspension Clause challenge only so long as an “adequate substitute” is available. As interpreted in Boumediene v. Bush,³ the Clause requires that any adequate substitute for habeas review must provide the prisoner with, at a minimum, “a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law” and must provide the reviewing court with “the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy.”⁴ In Boumediene, the Court struck down the military tribunal system set up for “enemy combatants” but emphasized that where the original detention proceedings themselves are more rigorous—“e.g., in post-trial habeas cases where the prisoner already has had a full and fair opportunity to develop the factual predicate of his claims”⁵—substituting very limited federal review for broader access to habeas might be permissible.

Limiting federal review of noncapital state criminal cases as we propose—to certiorari review by the Supreme Court plus habeas review of claims held retroactive or accompanied by a showing of innocence—will not violate the Suspension Clause so long as the states continue to provide not only an initial Due Process–compliant adjudication of guilt but also reasonable levels of state appellate and postconviction review. Under Boumediene, state judicial proceedings cannot be an adequate substitute for habeas, but those proceedings can provide the necessary context in which even a severely limited federal judicial forum, such as the one we propose, can nevertheless suffice as an adequate substitute for habeas. Conversely, if a particular state were to curtail its own appellate and postconviction review processes substantially, this analysis would lead to the conclusion that our proposed restrictions on habeas would amount to an unconstitutional suspension of the writ.

The Supreme Court has yet to use its powers under the Suspension Clause in precisely this way. But a speech by Justice Brennan in 1961 foreshadowed this line of reasoning. Justice Brennan articulated two different reasons for expanding federal habeas review for those serving state sentences: (1) defiance by state judges in the face of what they considered an unjustifiable incursion of federal law into the traditional domain of the states and (2) the lack of state postconviction proceedings and remedies adequate to adjudicate defendants’ constitutional claims. If either of these conditions were to recur in a particular state as a consequence of our proposal, the Court should find our proposed habeas restrictions to be a violation of the Suspension Clause as applied to criminal cases from that particular state. This would effectively restore full habeas review in that state.

The initial burden of constitutional challenges to a more restrictive statutory scheme should diminish quickly as the Supreme Court decides whether the review processes in various states provide sufficient judicial review to allow our proposed new habeas restrictions to satisfy the Suspension Clause. After all, the Court expeditiously resolved the Suspension Clause challenges to AEDPA,⁶ allowing the lower federal courts to dispose of such claims summarily. The analysis we propose also comports with the Court’s longstanding practice of exercising control over the scope of the writ, including its frequent adjustments of that scope in response to changing conditions.

Relying upon the Supreme Court as the ultimate authority to decide whether criminal defendants have a reasonable opportunity to litigate the constitutionality of their custody avoids the pitfalls of making statutory restrictions of habeas contingent on the states’ meeting new federal standards for judicial review. If Congress tried to write minimum standards for state appellate and postconviction review, it might overshoot what the Court would mandate under the Clause. Moreover, rather than dealing only with the constitutionality of the habeas statute as applied, courts would also have to determine the meaning of the statutory standards.

Suspension Clause jurisprudence is not well developed. The Supreme Court may not interpret the Clause as suggested here. The Court may conclude that the limits of the Clause do not depend upon variations in state judicial review processes. Or the Court might decide that the Suspension Clause only bars suspensions of the writ for those in federal custody, or that it protects only the post–Civil War statutory version of habeas, but not the expansions that originated with the Warren Court. Should the Court limit its own habeas powers in these ways, Congress should enact the same scaled-back version of habeas but should make the application of the habeas restrictions expressly contingent on a state’s willingness to provide adequate levels of appellate and postconviction review of criminal cases.

***

This Editorial addresses two problems: the federal government’s failure to develop an alternative to wasteful federal habeas review as a way to enforce constitutional criminal procedure rights in state criminal cases and the political and fiscal challenges facing elected state officials in providing adequate defense representation to their citizens. Our proposal goes to the root of each problem, eliminating ineffectual habeas review and presenting a new federal approach that directly addresses both of the challenges that have discouraged state and local efforts to comply with constitutional guarantees.

The proposal also addresses the political realities that make these two problems—the broken remedy and the unfulfilled right—so intractable. Many liberals do not trust state courts to protect individual rights adequately without robust habeas review. Many conservatives view any effort to improve defense representation as “soft on crime,” essentially electoral suicide. Reform stalls; as a result, neither the wastefulness of habeas nor defense underfunding gets addressed.

Our proposal offers a solution that responds to concerns from both sides of the political spectrum. For those who would reject our proposed habeas restriction as a withdrawal of the only hope for state prisoners to escape the oversights and misdeeds of state courts, we cite empirical evidence of the utter futility of habeas review today. For those who would prefer to enhance federal court oversight of state noncapital cases through the Great Writ, we explain why that vision will never be more than a fairy tale. For those who would argue that cutting back habeas would lead to the erosion of state judicial review as well, we map out a Suspension Clause analysis that would ensure that state prisoners continue to receive adequate judicial review of their constitutional claims. For those wary of being associated with any effort to improve indigent defense, we offer a win-win for the states. The proposal allows states to better utilize the funds they would otherwise spend defending noncapital habeas cases in federal court, while providing incentive grants to help them improve defense delivery. The new federal center will identify and promote best practices in indigent defense nationwide but will leave to each state the autonomy to take or leave what the federal center has to offer.

In the end, we envision a transformed three-tiered system of state criminal justice in which (1) the states provide higher-quality trial-level proceedings by improving the quality of defense counsel through the support, encouragement, and financial incentives of the proposed new federal center; (2) the state courts, both on direct appeal and in state postconviction proceedings, continue to fulfill their obligation to provide reasonable levels of review of claims of constitutional error in individual state criminal cases; and (3) the federal courts undertake two subsidiary and supporting roles: (a) the lower habeas courts entertain only the special categories of habeas claims identified above, in which case-by-case federal review would be most valuable; and (b) the Supreme Court, using its authority under the Suspension Clause, ensures that the states do not abdicate their responsibility to provide reasonable levels of judicial review.

What is the best way—the most effective and most efficient way—for the federal government to ensure that federal constitutional rights are observed in state criminal proceedings? In our view, the current system cannot possibly be the right answer. Instead, it is time for a new paradigm, one that relies on state courts to do the heavy lifting of case-by-case judicial review but uses the leadership and financial strength of the federal government to bring about a sea change in state systems of defense representation.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Joseph L. Hoffman is a Professor of Law at Indiana University School of Law.

Nancy J. King is a Professor of Law at Vanderbilt University Law School.

A full-length version of this Editorial was published in the New York University Law Review as Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791 (2009).

This Legal Workshop Editorial is based on the following Law Review Article: Joseph L. Hoffmann   Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. REV. 791 (2009).

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 Associate Professor at Suffolk University Law School

You are a juror sitting in a courtroom (a place you’ve never visited), hearing an opening statement by a loud-mouthed lawyer you barely know.  After an hour, a first witness walks into the courtroom and sits by himself on the witness stand.  The lawyer’s cross-examination of the witness implies, “Be careful of that guy.  He is an illegal alien.”  A few minutes later, a second witness enters the courtroom; he also sits alone on the stand.  The lawyer’s cross-examination of the witness implies, “Be careful of that guy.  He cheats on his wife.”  Which of these two people do you trust less?

According to the recent opinion of one federal appellate court, the illegal alien is the answer, and the second line of interrogation is prohibited.  In United States v. Almeida-Perez,¹ the Eighth Circuit found that an extensive interrogation into the immigration statuses of defense witnesses was not plain error.  The court relied upon First and Second Circuit opinions that found that the way individuals enter this country is relevant to their character for truthfulness. In reaching its conclusion, the Eighth Circuit also acknowledged—but was ultimately unpersuaded by—an analogous Eleventh Circuit decision.  The Eleventh Circuit found that a district court erred when it allowed the State to question three defense witnesses about a letter written by the defendant/appellant, which proposed an adulterous liaison, because the letter did “not directly relate to the Appellant’s truthfulness and honesty.”  The Eleventh Circuit’s opinion was in line with precedent from across the country, which generally holds that witnesses cannot be impeached through acts of misconduct unless such acts bear directly on their truth-telling capacity; evidence that a witness has engaged in unlawful trespass, the act most similar to entering this country illegally, cannot be used to impeach the witness under such cases.

This Essay argues that courts err when finding that witnesses can have their character for honesty impeached through cross-examination regarding their immigration statuses.  First, immigration status, in and of itself, does not directly bear upon (dis)honesty.  Second, even if immigration status does have sufficient bearing on witness honesty, the probative value of immigration interrogation is substantially outweighed by the danger of unfair prejudice that it introduces.  Finally, if an attorney seeks to impeach a witness based upon his immigration status or his alleged commission of some immigration-related crime, such as fraudulently obtaining documentation, the witness should be able to invoke his Fifth Amendment privilege against self-incrimination.

 
I.
Impeachment’s Reach

Unless a witness has been convicted of a certain category of crime, his character for honesty generally may only be impeached through opinion and reputation testimony and not through testimony concerning specific instances of (mis)conduct.  For instance, after a defendant testifies in his trial for a crime such as arson or assault, the State could call a witness to testify that he has been the defendant’s neighbor for ten years and that (1) in his opinion, the defendant is a liar and/or that (2) the defendant has a reputation in the neighborhood for being a liar.  The prosecution witness could not, however, testify about those acts that constitute the basis for his opinion.  In other words, if this prosecution witness thinks the defendant is a liar because he believes or has knowledge that the defendant committed embezzlement, the witness is nevertheless prohibited from testifying concerning this specific instance of misconduct.

Federal Rules of Evidence 608(a) and (b) explain this dichotomy.  In relevant part, Rule 608(a) states that “[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation . . . .”² Conversely, Rule 608(b) begins by stating that in “attacking or supporting the witness’s character for truthfulness [specific instances of a witness’s conduct], other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence.”³

But Rule 608(b) goes on to state that:

In other words, if defense counsel responded to the prosecution witness by calling its own witness to testify that, in his opinion, the embezzling defendant is honest, the State could ask that witness on cross-examination whether he knew or had heard that the defendant committed embezzlement.  Pursuant to the Rule, however, the State remains unable to prove the act in question through extrinsic evidence (in other words, with evidence from another witness or document); it is bound by the witness’s response.

Moreover, once the defendant’s character is at issue, the State may ask the defendant directly whether he committed embezzlement.  The problem with this tactic is that Rule 608(b) ends by cautioning: “[t]he giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.” Assuming, therefore, that he is not on trial for the embezzlement alleged, the defendant could invoke his Fifth Amendment privilege if questioned about the matter. The defense witness, by contrast, cannot “plead the Fifth” because his testimony about the defendant’s embezzlement would not tend to incriminate him.

 
II.
Immigration Interrogation

In United States v. Almeida-Perez, the Eighth Circuit case referenced above, José and Porfirio Almeida-Perez appealed their convictions for being illegal aliens in possession of firearms transported in interstate commerce.  They alleged, among other things, that the judge (rather than the prosecutor) improperly badgered defense witnesses concerning the defendants’ immigration statuses.  The Eighth Circuit denied their appeal, relying upon “two cases in which unlawful entry into the country or other violation of immigration laws was considered admissible because relevant to truthfulness.”

In addition to the two courts issuing the opinions relied upon by the Eighth Circuit, many other courts, both state and federal, would have reached the same conclusion.  The Supreme Court of Wyoming in Marquez v. State,⁵provides one example.  In Marquez, Oscar Rodriguez Marquez appealed from first-degree assault and assault and battery convictions, claiming, inter alia, that the trial court improperly allowed him to be impeached based upon illegal alien status. The court denied his appeal, curtly concluding that Marquez’s status as an illegal alien was probative of his character for truthfulness and that Marquez had “not directed us to any legal authority which would persuade us otherwise.”

The Second Circuit in United States v. Cambindo Valencia,⁶ provides another example.  In Cambindo Valencia, the defendant appealed from his convictions, which related to a conspiracy to commit narcotics offenses, claiming, inter alia, that the district court erred by allowing the prosecutor to cross-examine him about whether he had a green card. The district court permitted such interrogation, finding that it bore upon the defendant’s credibility; the Second Circuit affirmed, simply concluding that the questioning was proper.

Conversely, other courts, such as the United States District Court for the Eastern District of New York, have precluded the impeachment of witnesses based upon their immigration statuses because of the lack of an established link between such status and credibility. According to these courts, individuals enter the United States for a variety of reasons and under a variety of circumstances.  Thus, “[a]n individual’s status as an alien, legal or otherwise, . . . does not entitle [the government] to brand him a liar.”⁷ Still other courts have held that a witness cannot be impeached solely based upon his status as an illegal alien, but may be impeached if the witness has committed some immigration-related crime, such as falsifying his identity.

 
III.
The Truth of the Matter

To determine which courts are acting correctly, we must consider the types of conduct typically covered by Rule 608(b).  As the text of the Rule reveals, attorneys may cross-examine witnesses only regarding acts that are probative of (un)truthfulness.  Although courts vary somewhat in enumerating what those acts are, many courts, including the Second and Eighth Circuits, hold that Rule 608(b) only permits inquiry into specific acts “related to crimen falsi, e.g., perjury, subornation of perjury, false statement, embezzlement, [or] false pretenses” that could lead to arrest.  Most illegal immigrants enter the country without inspection, meaning that the act of illegal entry is usually not an act relating to crimen falsi because it does not involve deceit of or false statements to government officials or bodies.  It follows that the opinions in Almeida-Perez and Cambindo Valencia, which made no reference to the impeached witnesses’ use of lies or deceit to enter this country, were wrongly rendered because the courts issuing those opinions otherwise only allow impeachment based upon acts of deception.

Some courts have held that Rule 608(b) permits inquiry into a broader range of acts, such as property crimes.  For instance, in State v. Williams, the Court of Criminal Appeals of Tennessee reversed an appellant’s armed robbery conviction after concluding that the trial judge erred when he precluded the appellant from impeaching a prosecution witness by inquiring into an act of larceny the witness had allegedly committed.  The court simply found that “[l]arceny is a bad act constituting dishonesty.”⁸

Even the courts that read Rule 608 broadly, however, find that trespass, the act most similar to entering the country illegally, is not an act involving dishonesty or false statement.  Accordingly, they hold such activity is beyond the scope of Rule 608(b).  To wit, in State v. Philpott, a Tennessee trial court found that “[c]riminal trespass is not a crime involving dishonesty or false statement.”⁹ Later, recognizing the similarity between illegally entering this country and trespassing, the same Tennessee appellate court that found larceny to be a crime of dishonesty relied upon Philpott in finding that a trial court properly precluded a defendant from interrogating a witness regarding his illegal work status. Conversely, no court has explained how immigration status is a proper subject for impeachment while trespassing is not, nor has any court provided anything more than a cursory comment “to support the conclusion that the status of being an illegal alien impugns one’s credibility.” This lack of sound reasoning is particularly disturbing given that there are reasons even beyond the plain language of Rule 608(b) for excluding inquires into a witness’s illegal alien status.

 
IV.
Divide and Prejudice

Even if cross-examination regarding a witness’s immigration status was sufficiently relevant on the issue of (un)truthfulness under Rule 608(b), a court would still have to foreclose such inquiry if: (1) its probative value were substantially outweighed by its prejudicial effect under Rule 403, and/or (2) it were necessary to protect the witness from harassment or undue embarrassment under Rule 611(a). Indeed, in Almeida-Perez, the Eighth Circuit acknowledged on the one hand that “the relevance of an immigration violation to character for truthfulness is at the least debatable,” and on the other that “the use of such evidence is fraught with the danger of prejudice to a defendant by introducing the possibility of invidious discrimination on the basis of alienage.” Although the Eighth Circuit ultimately found that the immigration interrogation in the case before it navigated the Rule 403 tightrope, it should not have done so based upon the tendency of such questioning to divide and prejudice jurors against the illegal alien.

In making its decision that immigration interrogation is not reversible error, the Eighth Circuit relied on precedent from the First and Second Circuits.  The First Circuit case, United States v. Cardales, is a 1999 opinion in which the appellate court found that the district court did not err by allowing the prosecution to impeach the defendant’s character based on its interrogation into his unlawful entry into Puerto Rico.¹⁰ That opinion failed to reference Rule 403.  The Eighth Circuit thus would have been better served relying upon the First Circuit’s 2004 opinion in United States v. Amaya-Manzanares because, unlike Cardales, Amaya-Manzanares actually addressed the prejudicial effect of immigration interrogation.

Amaya-Manzanares illustrates the unfair prejudicial effect of immigration interrogation.  The Amaya-Manzanares court reversed a defendant’s conviction for false use of a green card, finding that the district court erred by failing to consider such effect under the Rule 403 balancing test before allowing the prosecution to cross-examine him regarding his unlawful entry into the United States. In reversing, the First Circuit acknowledged that Amaya’s unlawful entry was relevant to the question of whether the green card was false because such entry would make “it more likely that the card is false than it would be without evidence of such entry; after all, an unlawful entrant would have use for a false green card, while a lawful entrant would have a far better chance of qualifying for a valid card.” Nonetheless, the court found that “[n]o sensible judge would be likely to let in the unlawful entry evidence to show falsity” because, among other things:

Some courts also have found that immigration interrogation violates Rule 403 and/or Rule 611(a) when the party impeached is a civil plaintiff.  For example, one case in the United States District Court for the Southern District of New York proscribed a defendant-employer from inquiring into the immigration status of a former employee who sued the company for employment discrimination.  In so doing, the court affirmed the findings of a magistrate judge who had concluded that the probative value of such interrogation would be substantially outweighed by the harm it would cause by “discouraging illegal alien workers from litigating unlawful discrimination and other employment-related claims for fear that [being forced to] publicly disclos[e] their unlawful presence in this country would subject them to deportation proceedings . . . .”¹¹

Other opinions illustrate the divisive nature of immigration interrogation.  For instance, in Salas v. Hi-Tech Erectors, an undocumented immigrant brought a personal injury action against a scaffolding contractor, and the trial court allowed the defendant to question the plaintiff and his brother regarding the plaintiff’s immigration status at length.  The Court of Appeals of Washington deemed this decision to be erroneous, concluding that “[t]he issue of immigration status is divisive and prejudicial.”¹² Because immigration interrogation is lacking in probative value and has this tendency to divide and prejudice jurors, courts should preclude it, even if it is warranted under Rule 608(a).

 
V.
Immigration Incrimination

Although most illegal immigrants enter this country without engaging in acts that might be construed as constituting crimen falsi, in some cases, immigrants do illegally enter this country through the use of some type of deceit or false statement; in other cases, immigrants not only enter this country illegally, but also commit some further immigration-related crime that has direct bearing upon their honesty.  For instance, in the previously mentioned Marquez opinion, the defendant not only entered the country illegally but also used a false Social Security number. Although in one sense such acts of crimen falsi present a stronger argument for impeachment than the bare act of entering the country illegally under Rule 608(b), the interrogator faces a common obstacle under the Rule in any of the above-mentioned scenarios: the Fifth Amendment.  If an attorney or judge seeks to impeach a witness based upon his immigration status or his alleged commission of an immigration-related crime of dishonesty (and that witness is not the subject of a deportation proceeding or a criminal defendant facing charges for one of those alleged crimes), the witness should be able to invoke his Fifth Amendment privilege against self-incrimination.  Rule 608(b) ends by cautioning that “the giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.”

When asked about his immigration status or one of these honesty-related crimes, an illegal alien should be able to invoke his Fifth Amendment privilege against self-incrimination because his response would create a “real and appreciable” hazard of incrimination and prosecution that is not “so improbable that no reasonable man would suffer it to influence his conduct.” Indeed, in an Advisory Opinion issued on January 30, 2009, the Maryland Judicial Ethics Committee instructed judges not to inquire into a defendant’s immigration status at either a bail or sentencing hearing because a defendant who entered the country illegally can be subject to criminal penalties, triggering the Fifth Amendment privilege.

 
Conclusion

As the Maryland Judicial Ethics Committee noted in its recent Advisory Opinion, “[i]t is public knowledge that there are millions of illegal aliens in the United States and that the issues arising from that fact are controversial, high-profile, and perceived by members of the public as involving national origin, race, and socioeconomic status.” ¹³ This Essay opened by asking whether a prospective juror should trust an illegal alien less than an adulterer.  According to courts allowing for immigration interrogation, the illegal alien is less deserving of a juror’s trust.  But are these decisions based on the fact that immigration is a hot-button issue, or are they based upon illegal immigrants actually being less trustworthy than those who have committed adultery, trespass, and other acts held to be non-deceitful?

Data shows that most illegal immigrants come to this country to work and to reunify their families. You are a juror.  The lawyer’s cross-examination of a first witness implies, “Be careful of that guy.  He is an illegal alien.  He is trying to provide for and pull together his family.”  The lawyer’s cross-examination of a second witness implies, “Be careful of that guy.  He cheats on his wife.  He is tearing his family apart.”  Which of these two people do you trust less?

Acknowledgments:

Copyright © 2010 Northwestern University Law Review.

The author would like to thank Daniel Garramone for his diligent research assistance.

Colin Miller is a Professor at the John Marshall University School of Law.

This Legal Workshop Editorial is based on the following Law Review Article: Colin Miller, Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes 140 NW. L. Rev. 290.

I.
Theory of Financial Institution Failure

In recent years, it has become apparent that the failure of large, interconnected nonbank financial institutions, such as hedge funds and investment banks, can create substantial systemic risk and thereby impose external costs on the financial markets and economy.² Because no financial institution has the incentive to limit its own systemic risk,³ and because collective action by market participants to prevent systemic risk is unlikely,⁴ some regulation is needed to minimize the external costs produced by the failure of “too big to fail” (TBTF) institutions. Any remedial regulation should (1) prevent overly risky behavior by a TBTF institution that could cause it to fail and create contagion,⁵ and (2) prevent the panic among investors that can precipitate an institutional failure.

Regulation to avert systemic risk, however, can also create moral hazard and uncertainty. One way of reducing systemic risk is by “bailing out” TBTF institutions—guaranteeing their agreements with creditors and counterparties—which reduces the chances of their failure by preventing runs on the institutions. The problem with this approach, however, is that while loss-fearing counterparties and creditors normally exert market discipline to prevent institutions from taking on excessive risk, parties that come to expect future bailouts reduce their discipline accordingly. A policy of “constructive ambiguity”—only bailing out some creditors and counterparties so that none can count on a bailout ex ante—reduces this moral hazard. But constructive ambiguity also creates uncertainty in financial markets, leading panicked investors to withdraw their funds en masse from other financial institutions, which can increase systemic risk. The benefits of constructive ambiguity in reducing moral hazard will be produced most effectively through a discretionary and transparent process that retains uncertainty over the outcome of regulatory decision-making with regard to bailouts, but involves less ambiguity over the rules and process informing such decision-making. Creating clear procedures but preserving uncertainty over the outcome of a regulatory decision produces a better balance between uncertainty and moral hazard: Clear procedures will calm panicky investors, while uncertain outcomes will curb moral hazard.

II.
Evaluating Our Current Regulatory System

Our current regulatory system is suboptimal in both its ex ante and ex post regulation of systemic risk. Ex ante, the system fails to reduce the external costs caused by the overly risky behavior of nonbank financial institutions. Prudential regulations to curb such behavior are either insufficient, as with the Securities and Exchange Commission’s regulation of investment banks through the Consolidated Supervised Entities program, or nonexistent with respect to certain financial institutions, such as hedge funds. Ex post, the system does not sufficiently reduce the systemic risk caused by the failure of nonbank financial institutions and does an inadequate job of limiting the moral hazard and uncertainty that regulation creates. Under our current regulatory framework, when a large nonbank financial institution is on the verge of failure, regulators have two options: either undertake last minute, ad hoc actions to rescue the institution or permit the institution to file for bankruptcy. The problem is that this ad hoc approach can result in (1) bankruptcy filings by TBTF institutions that will likely cause contagion, as exemplified by the failure of Lehman Brothers, and (2) uncertainty in regulators’ decision-making processes that can create panic and worsen an ongoing financial crisis, also apparent during the aftermath of Lehman Brothers’ bankruptcy filing.

III.
The Obama Administration’s Framework for Regulatory Reform

The Obama administration’s proposed legislation would establish rules by which the Federal Reserve would designate certain financial institutions as TBTF—or Tier 1 financial holding companies (Tier 1 FHCs)—which would become subject to more stringent ex ante prudential regulations. The determination of whether an institution should be deemed a Tier 1 FHC would not depend upon the legal status of the institution, such as whether it is legally a bank, a hedge fund, or an investment bank, but rather on the extent to which a failure would be likely to impose external costs on financial markets and the economy. The Obama administration’s proposal retains the current bankruptcy process but adds a resolution regime that governs the failure of Tier 1 FHCs in some circumstances in order “to efficiently and equitably resolve the claims of creditors and other stakeholders”⁶ through a legal process similar to bankruptcy. Although the Federal Reserve and the Federal Deposit Insurance Corporation (FDIC) must approve a decision to invoke the resolution regime by a two-thirds vote, the Treasury would ultimately decide whether to invoke the regime upon consultation with the President.

The Obama administration’s proposal improves upon our current regulatory system, but it could do more to avert the systemic risk that could result from the failure of a Tier 1 FHC. Although the proposed framework instructs the regulatory agencies to consider “serious adverse effects” on the financial system and economy when deciding whether to invoke the resolution authority, the procedures for reaching such a determination are so stringent—requiring near consensus among numerous regulatory agencies—that it seems likely that at least some financial institutions whose failure will cause systemic risk will not be bailed out. The proposed legislation also leaves open the possibility that regulators, at the eleventh hour, might elevate moral hazard concerns above concerns about systemic risk. Furthermore, giving the Treasury—an agency firmly within the Executive branch—the ultimate authority to invoke the resolution regime overly politicizes what should be a technical decision based on an assessment of the expected systemic cost.

I also contend that the proposal fails to sufficiently reduce uncertainty in policymaking decisions, which could trigger panic and contribute to an environment where short-term creditors are likely to run a Tier 1 FHC. First, because the proposal leaves open the possibility of bankruptcy, creditors and counterparties of the institution now must worry about their ability to recover if the institution fails under both bankruptcy law and resolution rules. Second, the legislation does not require regulators to disclose the basis for the decision of whether an institution’s failure creates “serious adverse effects.” Without transparency in this crucial determination, ambiguity over the decision-making process remains, creating additional uncertainty for investors.

IV.
An Alternative Regulatory Reform Framework

While the Obama administration’s proposal has clear benefits, I suggest modifying the proposal’s ex post process for resolving the failure of TBTF financial institutions in order to prevent systemic risk more effectively and to reduce uncertainty. I propose that the Federal Reserve be given unilateral power to authorize the FDIC to seize a failing institution and place a value on the expected cost to the financial system and the economy of the institution’s failure. A cost-benefit provision in the new statute would then require the FDIC to provide the institution with financing only up to the cost of the systemic risk created by that institution’s failure.⁷ This will ensure that the expected cost of any bailout is less than the expected cost of systemic effects. Under my proposal, institutions deemed to be Tier 1 FHCs would not be subject to the bankruptcy process.

This alternative regulatory framework will improve upon the administration’s proposal in three ways. First, it will prevent systemic risk more reliably without worsening moral hazard. The cost-benefit provision of the resolution process ensures that systemic risk is properly considered and prioritized ex post in resolving a Tier 1 FHC failure. Under my proposal, regulators would not be permitted to elevate concern about creating moral hazard above the problem of systemic risk when deciding whether to allow a failed institution to liquidate. Furthermore, even though it is more likely under my proposal than under the administration’s proposal that Tier 1 FHCs will be rescued to some extent, any moral hazard will be limited because only short-term creditors with high-priority claims against an institution, not long-term subordinated creditors, are likely to recover fully in a resolution process.

Second, the Federal Reserve, as a regulatory agency with substantial prior experience regulating large, complex financial institutions and as the agency that would be responsible for monitoring and regulating Tier 1 FHCs ex ante, would have the most expertise and independence to make sound technical determinations about whether the systemic risk exception should be invoked.

Third, this framework reduces the additional harm and contagion caused by uncertainty in regulatory behavior without losing the benefit of reduced moral hazard. By removing the possibility of bankruptcy, the framework I propose eliminates a layer of legal uncertainty that could contribute to panic and trigger a run on financial institutions. Requiring transparency in the Federal Reserve’s methodology for making a systemic risk determination also reduces the ambiguity in decision-making procedures that can exacerbate a financial crisis.

Acknowledgments:

Copyright © 2010 New York University Law Review.

Alison M. Hashmall is a J.D. Candidate at New York University School of Law.

This Editorial introduces and is an abbreviated version of Alison M. Hashmall, Note, After the Fall: A New Framework To Regulate “Too Big to Fail” Nonbank Financial Institutions, 85 N.Y.U. L. Rev. (forthcoming June 2010).

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.

Parties’ choice of a seat of arbitration has especially important ramifications with respect to the law to be applied in disputes that may arise.  As the New York Convention reflects,² the jurisdiction in which the seat of arbitration lies determines the lex arbitri to be applied, meaning that the chosen jurisdiction’s courts will determine the existence, validity, and scope of the parties’ arbitration agreement.  Thus, the choice of a seat of arbitration, in addition to determining the choice of substantive law and the law to be applied to the arbitration agreement, will determine the tools available to a party to enforce an arbitration agreement and the costs associated with dispute resolution.

When used to enforce an arbitration agreement, an antisuit injunction usually arises under the following scenario: Parties A and B enter into a contract that includes an agreement to settle any disputes in arbitration to be held in Country 1, which is often a neutral country.  Party B, either ignoring the arbitration agreement or contesting its validity, brings or threatens to bring a parallel proceeding in Country 2, which is likely to be Party B’s home jurisdiction.  In response, Party A petitions a court of Country 1 to enjoin Party B from continuing with its action in Country 2 on the basis of their arbitration agreement.  Country 1’s court may issue an antisuit injunction against Party B, meaning that the court will hold Party B in contempt if Party B continues its Country 2 action.  If Party B ignores the injunction, it puts any assets or future business prospects that it may have in Country 1 at risk.

Technically, a court does not direct an antisuit injunction to a foreign court.  The effect of an antisuit injunction to enforce an arbitration agreement is to encourage the party that brings a parallel action in violation of the arbitration agreement to submit to arbitration and to save the party seeking the injunction the costs of litigating that parallel action.  The availability of an antisuit injunction can reassure parties whose agreement contains an arbitration clause that their disputes will likely stay in arbitration and not devolve into a multijurisdictional litigation nightmare.  If a party can bring a parallel action in violation of an arbitration agreement with impunity, the most frequently cited advantages of arbitration—namely confidentiality, neutrality of the arbitral tribunal, choice of procedure, and the ability to enforce an arbitral award worldwide—suddenly evaporate.

Civil-law jurisdictions have historically viewed antisuit injunctions as a violation of international comity and interference with a foreign court’s jurisdiction.  Common-law jurisdictions typically consider antisuit injunctions to be acceptable if certain criteria are met.  Following the common-law tradition, U.S. federal courts are willing, to varying degrees depending on the circuit, to issue antisuit injunctions to enforce arbitration agreements.  In this Editorial, after a brief discussion of West Tankers, I point to recent U.S. case law that demonstrates the lamentable lack of clear criteria by which a court can determine whether to grant such an injunction.  I then argue that it may be wise for a discernable group of parties, in light of the West Tankers decision, to choose a U.S. location as the seat of arbitration in the event of a dispute.

I.
West Tankers

A.     The House of Lords’ Defense of Antisuit Relief to Enforce Arbitration Agreements

Confronting the question of the compatibility of antisuit injunctions to enforce arbitration agreements with the Brussels Regulation,³ the House of Lords, rather than deciding the issue itself, referred the question to the ECJ.  In the House of Lords’ opinion, after acknowledging the ECJ’s demonstrated scorn for any measure taken by a court of a member state that has the effect of limiting the jurisdiction of another member state, Lord Leonard Hoffmann attempted to use the ECJ’s own jurisprudence to carve out an exception for antisuit injunctions to enforce arbitration agreements.  He drew upon the doctrine of Kompetenz-Kompetenz, arguing that member states should trust arbitrators and the court exercising supervisory jurisdiction to determine whether an arbitration agreement is binding and, if so, whether a given dispute falls under that arbitration agreement.  He also noted that the Brussels Regulation specifically excludes arbitration from its sphere of application.

Perhaps more interesting than the legal aspects of his argument, however, was Lord Hoffmann’s practical appeal regarding the utility of antisuit relief in the realm of arbitration.  In his view, such injunctions serve “as an important and valuable weapon . . .[,] promot[ing] legal certainty and reduc[ing] the possibility of conflict between the arbitration award and the judgment of a national court.”⁴ London—and by extension, Europe—could lose its attractiveness as a seat for international commercial arbitration if the ECJ lost sight of the fact that “[t]he courts are there to serve the business community rather than the other way round.”⁵ Specifically, Lord Hoffmann pointed to New York, Bermuda, and Singapore as jurisdictions willing to issue antisuit injunctions in support of arbitration agreements and worried that Europe would “handicap itself by denying its courts the right to exercise the same jurisdiction.”⁶

B.     The ECJ Decision

As is typical of ECJ jurisprudence, the Advocate General’s opinion, although it does not have the force of law, provides a clearer picture of the ECJ’s rationale than the ECJ decision itself.  The Advocate General stressed the importance of the concept of mutual trust among the courts of EU member states and insisted that member states’ courts be entitled to determine for themselves whether the Brussels Regulation’s arbitration exclusion is applicable.  This is in line with the civilian view that the fundamental subject matter of a dispute, rather than the existence of an arbitration agreement, determines the competence of a court.

In the final portion of the Advocate General’s opinion, she dismissed in a single sentence Lord Hoffmann’s concerns that Europe could lose a competitive edge if the ECJ were to prohibit antisuit injunctions to enforce arbitration agreements: “To begin with it must be stated that aims of a purely economic nature cannot justify infringements of Community law.”⁷ Attempting to lessen the harshness of the opinion, the Advocate General insisted that parallel litigation in a forum other than the seat of arbitration would only ensue if the parties disagreed as to the validity and scope of their arbitration agreement.  This makes light of the very real possibility that a party with superior resources to pay for a protracted legal battle in multiple forums might be inclined to bring parallel litigation simply to delay arbitration proceedings or obstruct a future enforcement attempt by the other party.  In the end, mutual trust and effet utile (effective judicial protection) won out over such worries.  The Advocate General did leave some consoling words for parties considering arbitration in an EU member state who now find themselves without recourse to an antisuit injunction to enforce an arbitration agreement: “If an arbitration clause is clearly formulated and not open to any doubt as to its validity, the national courts have no reason not to refer the parties to the arbitral body appointed in accordance with the New York Convention.”⁸ As any student of international commercial arbitration knows, this is easier said than done.

II.
The Availability of Antisuit Relief to Enforce Arbitration Agreements in U.S. Courts

In 2004, the Second Circuit decided the most recent significant appellate cases influencing the availability of antisuit injunctions to enforce arbitration agreements.  Judge Dennis Jacobs penned the opinions of both Paramedics Electromedicina Comercial, Ltda. v. GE Medical Systems Information Technologies, Inc.⁹ and LAIF X SPRL v. Axtel, S.A. de C.V.¹⁰ At first glance, the court appears to have employed differing standards in determining whether to issue an antisuit injunction to enforce an arbitration agreement.  In Paramedics, the Second Circuit, relying heavily on the federal policy in favor of arbitration, enjoined a party from continuing its parallel action in a Brazilian court.  In LAIF X, the same court gave much greater deference to comity concerns and rejected a party’s request for an antisuit injunction to stop a Mexican action from proceeding.  An examination of these cases and their progeny reveals that antisuit injunctions are certainly available as a remedy to enforce an arbitration agreement.  Unfortunately, parties interested in ensuring the availability of such relief may have trouble deciphering the formula required to do so.

Identifying some common threads in recent case law, however, creates a clearer picture of the current availability of antisuit relief to enforce an arbitration agreement.  The first is the vexatiousness of the parallel litigation that a party seeks to enjoin.  U.S. courts have shown little tolerance for parties that bring a parallel proceeding in violation of an arbitration agreement with the aim of delaying adjudication of a dispute or seeking preferential treatment in their home jurisdiction.  Another factor that enters into U.S. courts’ calculus in determining whether to issue an antisuit injunction to enforce an arbitration agreement is the substantive law of the parties’ agreement.  For example, if parties choose the law of New York State to govern their agreement and New York City as their seat of arbitration, a U.S. court is less likely to hesitate before issuing an antisuit injunction against a party that brings a parallel action in a foreign jurisdiction.  Comity concerns in this scenario are minimal, as the foreign court could hardly complain that a U.S. court was improperly applying U.S. law.

III.
Potential Beneficiaries of Antisuit Relief from U.S. Courts and How Parties Can Ensure Its Availability

A.     Potentially Interested Parties

As a result of the ECJ’s decision in West Tankers, a discernable class of parties would benefit from choosing a U.S. location rather than a European location as a seat of arbitration.  As a threshold matter, the contract in question must be commercial in nature and must not implicate any serious public policy.  Additionally, the parties must be in a financial position to participate in arbitration and litigation in either the United States or Europe.  Quite obviously, regional European parties with little or no experience in the United States will be loath to participate in arbitration or seek enforcement of an arbitral award in a U.S. city because options such as Geneva, London, or Paris are far more convenient.  The cost of participating in arbitration in the United States may well be prohibitive for such parties.  For multinational corporations with greater resources and experience hiring counsel on both sides of the Atlantic, such a problem would not be present.

For an antisuit injunction to have its intended effect, both parties must also have somewhat substantial and nonfungible assets in both the United States and Europe.  An antisuit injunction from a U.S. court will not necessarily persuade a party with no assets in the United States and no interest in developing business there to cease a parallel action in an EU member state.  Again, multinational corporations with significant operations in the United States and Europe will easily fulfill this requirement.

Parties that satisfy these threshold criteria would do well to consider the United States as a seat for arbitration largely for the same reasons that parties choose arbitration over public litigation in the first place.  Parties see the neutrality of arbitral tribunals as one of the main advantages of arbitration as compared to public litigation.  If parallel proceedings are brought in violation of an arbitration agreement in one party’s home jurisdiction, suddenly the other party faces exactly the risk that it sought to avoid by agreeing to arbitrate: the risk of bias.  A U.S. party engaged in arbitration with a non-U.S. party might conceivably benefit from such bias in seeking an antisuit injunction from a U.S. court, but this concern evaporates if neither of the parties involved is American.  In that situation, both the arbitral tribunal and the U.S. court entertaining a petition for antisuit relief would presumably be neutral.

B.     Maximizing the Availability of Antisuit Relief

After parties have determined that the availability of antisuit relief is important enough a factor to choose a U.S. city as the seat of their potential arbitration, what can they do to increase the likelihood that, should a dispute arise, a U.S. court will enjoin any attempt to bring parallel proceedings in violation of the arbitration agreement?  Unfortunately, as described in Part II, given the current state of the law regarding antisuit injunctions to enforce arbitration agreements, there is no guaranteed way to have access to antisuit injunctions.  Taking a lesson from the recent antisuit-relief jurisprudence in U.S. courts, however, parties are able to take some steps to increase the likelihood of access to antisuit relief.

Drafting an arbitration agreement is no simple task.  To ensure that arbitration takes place as the parties envision, parties must give serious consideration to drafting as airtight a clause as possible.  Under the New York Convention, the law of the seat of arbitration serves as the lex arbitri and partially governs the enforceability of an arbitral award.  Thus, if parties are explicit in choosing a location within the United States as their seat of arbitration, U.S. courts will not hesitate to apply U.S. lex arbitri and will entertain the possibility of antisuit relief.

Parties desiring the availability of antisuit injunctions from U.S. courts may also want to specify that U.S. law governs the arbitration agreement itself.  This precision will lessen the likelihood that U.S. courts will defer to other jurisdictions in determining the validity of an arbitration clause.  If parties choose another country’s law to govern their contract and choose a seat of arbitration within the United States without specifying that U.S. law shall govern the arbitration agreement, a court will likely apply the law governing the container contract to decide whether the arbitration clause is valid.  Moreover, a clause identifying the law governing the arbitration agreement will permit a court to regard an arbitration agreement purely as a contractual term and potentially reduce comity concerns.  Parties could go even further and specify in their arbitration agreement that any proceedings contesting the existence, validity, or scope of the arbitration agreement shall be held in the courts of the chosen seat of arbitration.  This language would render courts of other forums incapable of complaining that their jurisdiction had been usurped, unless a significant public policy issue was at stake.

Finally, if parties choose the law of a U.S. jurisdiction as the substantive law governing their contract, a U.S. court will be less likely to tolerate parallel proceedings brought in violation of an arbitration agreement.  With the law of a U.S. jurisdiction governing the agreement, the diminished relevance of a foreign jurisdiction’s input lessens comity concerns.  Obviously, many considerations enter into the fray when parties choose the substantive law that will govern performance of a contract.  However, parties identified in Part III.A with commercial contracts that do not implicate a specialized domain of law in which the United States is not as highly developed as another jurisdiction may not hesitate to choose, for example, New York law over the commercial law of a European jurisdiction.

Conclusion

Considering the attention that West Tankers has received, the bark of the ECJ decision may end up having more impact than its bite.  It is possible that the reputational costs that London may suffer as an arbitration venue will be larger than they should be.  Paradoxically, Lord Hoffmann’s plea to the ECJ to preserve the availability of antisuit injunctions to enforce arbitration agreements could actually do more harm than good to London’s status as an arbitration venue.  Lord Hoffman’s opinion gives arbitration counsel who argue that such equitable relief is important for parties wishing to avoid parallel litigation ammunition to convince their clients that the result of West Tankers makes London a less arbitration-friendly venue.  Thus, in the manner of a self-fulfilling prophecy, parties may choose jurisdictions that do offer antisuit relief not for substantive reasons, but simply because of Lord Hoffmann’s prediction that parties would do so if the ECJ disallowed such relief.

Despite the lack of a clear standard in U.S. courts for the issuance of an antisuit injunction to enforce an arbitration agreement, parties can expend the resources necessary at the outset of their contractual relationship to ensure that antisuit relief will be available by drafting their arbitration agreements carefully.  Presumably, if more parties choose to seat their arbitration in the United States as a result of West Tankers, U.S. courts will consider more petitions for antisuit relief.  Perhaps this will push courts, in the interest of judicial expediency, to adopt a clearer standard to which parties can refer when crafting their arbitration agreements.

Acknowledgments:

Copyright © 2010 Cornell Law Review.

Daniel Rainer is a 2011 J.D. candidate at Cornell Law School and a 2011 Master en Droit candidate at Université Paris 1 Panthéon-Sorbonne.

This Legal Workshop Editorial is based on the following Student Note: Daniel Rainer, The Impact of West Tankers on Parties’ Choice of a Seat of Arbitration, 95 CORNELL L. REV. 431 (2010).

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.

Early women’s rights advocates relied on formal citizenship status as a basis for demanding the substantive rights that full citizens enjoy—a broad spectrum of political, personal, and civil rights from suffrage to child custody to property ownership.  Out of the Seneca Falls convention in 1848 came the Declaration of Sentiments, a wish list that would serve as the blueprint for a century of women’s rights advocacy.  The civil and political rights emphasized by those early advocates were essential components of equal citizenship, a substantive concept popularized in the 1950s by British social theorist T.H. Marshall.  But Marshall also identified an important third dimension—social citizenship—which, in the United States, involves access to paid work and economic security.

Pregnancy, with physical effects that often, if only temporarily, impede a woman’s working capacity, is increasingly an obstacle to women’s equal social citizenship.  Conflicts between pregnancy and work escalated in number and degree as women expanded their labor force participation in many respects, including working more and longer while pregnant and holding hazardous and physically strenuous (but often well-paying) jobs traditionally reserved for men.

The Pregnancy Discrimination Act of 1978 (PDA) was part of a broad social movement designed to guarantee equal employment opportunities for women, but was specifically designed to dismantle a system in which states and employers freely, though inconsistently, excluded pregnant women from the workplace or restricted the conditions under which they could work based on false assumptions about their capacity.   Unquestionably, the PDA successfully opened workplace doors for pregnant women, invalidating these laws and policies and giving women a weapon against employment decisions motivated by harmful pregnancy bias.  But women’s equal participation in the workforce requires more than just open doors.

The plight of pregnant workers today rests not primarily in false assumptions about their incapacity but in the failure of current law to account for the physical, medical, and social realities of pregnancy. Pregnancy discrimination law provides absolute protection for women only if they retain full work capacity during the period of pregnancy and childbirth.  In cases of partial incapacity, it provides only a comparative right to accommodations that can be limited in nature and difficult to enforce.

My Article argues that equal citizenship requires not only legal protection from unjustified exclusion from the workforce, but also protection for a pregnant woman’s right to work despite the potential temporary physical limitations of pregnancy.  This protection, in turn, means that employers must be required to provide reasonable workplace accommodations to counter the physical effects of pregnancy.

I.
The Realities Faced by Pregnant Working Women

Perhaps the most important fact about pregnant working women today is the dramatic increase in their numbers.  A general influx of women into the workforce beginning in the 1950s (so substantial that they are now poised to outnumber male workers) set the stage for the eventual increase in labor force participation by pregnant women and mothers.  This, combined with a change in attitudes about the proper role of women, fostered greater workforce participation by pregnant women and mothers.  Today, a majority of pregnant women work outside the home, and the vast majority of working women will become pregnant at some point during their working lives.  And women who do work while pregnant stay longer and return sooner than women from earlier eras.

Despite their numbers, however, pregnant women continue to face bias in the workplace. Pregnancy discrimination claims have surged in the past decade, and major companies have found themselves on the receiving end of high-profile lawsuits.  Recent cases show the persistence of stereotyped decision making about pregnant workers, a finding supported by social science evidence.  However, pregnant women may be harmed more by the law’s commitment to pregnancy-blindness than by these residual instances of bias.

There is no inherent conflict between pregnancy and paid work. The workplace has long been plagued by false assumptions about the pregnant woman’s ability to work, but with little attention to relevant scientific data or the advice of individual doctors.  The first science-based guidelines on pregnancy and work, formulated in the 1970s and 1980s, concluded that a woman with an uncomplicated pregnancy can normally work until she gives birth and safely resume work several weeks later.  Since those initial guidelines were published, researchers have undertaken to study further the concrete effects of work on maternal and fetal health.  Despite advances in scientific research, there is still much more to be learned about the effects of work on pregnancy.  We know enough, however, to be concerned about a legal framework that fails to account for the physical effects of pregnancy.

Conflicts between pregnancy and work run both ways—pregnancy can interfere with job performance and job performance can interfere with healthy pregnancy.  These conflicts stem from the inevitable physical changes that accompany a woman’s pregnancy.  Many pregnant women will have difficulty, at various points during pregnancy, performing tasks like heavy lifting, prolonged standing, or rapid movement or complying with inflexible policies about start time, bathroom breaks, or eating on the job.  At the same time, women may encounter hazardous conditions at work even when their own capacity is not impaired.  Pregnant women face three types of potential danger at work: hazardous environmental conditions (contagions, chemicals, etc.), contraindicated physical movements (heavy lifting, for example), and adverse working conditions (night shift work, for example).

II.
Women’s Equal Citizenship

Pregnancy discrimination law, like most contemporary women’s rights issues, has developed under the framework of equality.  The equality model has been enormously helpful in breaking down barriers to the workplace, among other institutions.  But “equality” is hard to define and thus hard to measure, and disagreements over its proper definition have led to significant shortcomings in legal protection for pregnant workers.

This Article thus turns to full or equal “citizenship” as a standard by which to evaluate pregnancy discrimination law.  “Citizenship,” in the words of T.H. Marshall, “is a status bestowed on those who are full members of a community.  All who possess the status are equal with respect to the rights and duties with which the status is endowed.”¹ A “second-class citizen” is someone who is deprived of some essential component of citizenship, despite having an equal formal status.  “Citizenship,” though a contested concept, provides a substantive framework to measure women’s progress towards equality generally, as well as to critique current law’s treatment of pregnant women at work.

The citizenship framework has been criticized for its exclusionary effects, as well as for its focus on rights without an attendant focus on obligations.  This Article acknowledges those criticisms, but defends “equal citizenship” as a useful tool with a long and venerable history in the women’s rights movement.  The exclusionary effects can be addressed both through form—by replacing “citizenship” with terms like “standing” or “belonging,” as many scholars have done—and substance—by committing to the equal “citizenship” of all residents regardless of formal citizenship status.

Despite concerns about its exclusionary effects, the concept of equal citizenship continues to resonate with voters, advocates, legislatures, and judges.  Justice Ruth Bader Ginsburg invoked it in her opinion in United States v. Virginia,² which held that VMI’s all-male admissions policy was unconstitutional: “neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature—equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”³ It is this conception of equal citizenship that fuels this Article’s evaluation of current pregnancy discrimination law.

Work is an important component of equal citizenship, and the central feature of so-called “social citizenship.”  Work facilitates political participation, but also has tangible benefits for the individual, including, importantly, the potential for economic security. Women’s quest for social citizenship began in earnest in the 1960s, when advocates targeted a wide range of exclusionary policies and practices that hampered women’s employment opportunities.  Key legislative successes like the Equal Pay Act, Title VII, and Title IX, and significant litigation victories establishing a broad scope for these laws, were dovetailed by the Supreme Court’s embrace of a constitutional right of sex equality.  These developments were fueled by a stark change in social attitudes about women’s proper place and gave rise to a dramatic opening of workplace doors to women.

Despite the intense (and often successful) efforts feminists have deployed to increase women’s access to the workplace, it would be misleading to suggest that there is no disagreement among them about the importance of paid work or its centrality to social citizenship.  While many academics and popular press authors have urged women to embrace paid work as a pathway to independence, others have cautioned that the tendency to valorize work narrowly reflects the perspective of white or upper/middle class women and that the emphasis on work neglects the disproportionate amount of family and care work performed by women.

Regardless of whether one thinks we should push for equal valuation of unpaid work, equal access to meaningful paid work remains an essential, minimum component of equal citizenship.  Yet pregnancy presents a challenge: it often renders women temporarily less capable of performing their jobs, but not necessarily interested in converting their efforts to unpaid labor during or after pregnancy, even if society equally valued that work.

III.
Pregnancy Discrimination Law: From Exclusion to Access

Legal protection against pregnancy discrimination at work was a 1970s invention that brought about a stark turnabout in the treatment of pregnant working women.  An era of exclusion gave way to an era of access, as a legal regime that once permitted employers to bar pregnant women from the workplace with impunity was replaced with one that mandated pregnancy-blindness.

Traditionally women worked at the whim of employers, many of whom excluded pregnant or fertile women.  In 1908, the Supreme Court gave its imprimatur to exclusionary policies designed to protect women’s reproductive function in Muller v. Oregon,⁴ an opinion that led to decades of state protectionist legislation and exclusionary employer policies.  Even after Title VII was adopted, and heightened scrutiny for sex-based classifications was established, the Supreme Court twice gave its approval to laws and policies that discriminated against pregnant women.⁵

Federal pregnancy discrimination law comes from three sources.  First, despite ruling against an equality-based right for pregnant workers, the Supreme Court granted a limited due process right against presumptions of incapacity due to pregnancy.  Second, Congress adopted the PDA in 1978, which, in a first clause, adds pregnancy to the definition of prohibited sex discrimination and, in a second clause, requires that employers treat employees with pregnancy-based disability the same as those “not so affected, but similar in their ability or inability to work.”  Finally, Congress adopted the Family and Medical Leave Act of 1993 (FMLA), which grants a gender-neutral right to limited unpaid leave for illness or family care, which can be used, as needed, for disabilities associated with pregnancy and childbirth.

Feminists split over the proper interpretation of the second clause of the PDA.  The “equal treatment” feminists urged formal equality—pregnant women should receive only what other temporarily disabled workers receive—in order to promote better conditions for all workers and to avoid promoting harmful gender stereotypes.   An opposing coalition, in contrast, urged a substantive equality model, advocating for accommodation of pregnancy and childbirth when necessary to ensure equal outcomes for men and women in workplaces, whether other forms of temporary disability were accommodated or not.  The latter view won out, as the Supreme Court interpreted the second clause, in California Federal Savings & Loan Ass’n v. Guerra,⁶ as a floor, rather than a ceiling, on the benefits that could be made available to pregnant workers.

This ruling, in effect, leaves pregnant workers at the whim of their employers in many cases.  If they provide leave, accommodations, or benefits to temporarily disabled workers generally, they must also provide them to pregnant workers.  Employers can favor the needs of pregnant workers over those of other temporarily disabled workers.  But, if employers are stingy across the board, pregnant workers have little to support a demand for better treatment regardless of necessity.  A “no leave” policy, for example, could be upheld, subject only to the minimal protections of disparate impact law, even if it effectively means that all pregnant employees lose their jobs when it comes time to give birth.

Through these various legal components, pregnant workers have a right to an individualized assessment of their capacity (as opposed to the traditional stereotyped assessments that presumed them incapable by the mere fact of pregnancy).  They also have a right to work if fully capable and their “capacity” cannot be defined by potential risk to fetal health.  This is, in effect, a right of pregnancy blindness—employers must look past the pregnancy and treat them solely based on what they can or cannot do.  When fully incapacitated by pregnancy or childbirth, employees may have the right to leave—a comparative right to leave under the PDA and an absolute right, if eligible, under the FMLA.

IV.
Workplace Accommodations and the Failure of Social Citizenship

Together, these constitutional and statutory developments spelled the end of a number of traditional policies, practices, and stereotypes that had kept pregnant women from entering the workforce or continuing in their jobs during or after pregnancy.  The pregnancy discrimination framework, however, is as notable for its gaps as its coverage.  When only partially incapacitated by pregnancy, a worker’s rights are much more tenuous, and the legal regime often produces unsatisfactory results.  The Americans with Disabilities Act (ADA) generally does not apply to disability arising from normal pregnancy or childbirth.  Likewise, the Due Process Clause, while it has been read to prohibit pregnancy-based stereotyping, does not support any right to workplace accommodations for pregnant workers.  The PDA does not provide pregnant employees with the absolute right to reasonable or necessary accommodations.  An employer cannot deny accommodations because of pregnancy, but nor must it make even minor accommodations, even if the consequence is that the pregnant woman must leave her job.

The pregnant woman’s right to workplace accommodations is comparative, based on the treatment of other temporarily disabled workers.  This right, however, has proven quite limited in practice.  The search for a comparator can be elusive.  Recent cases challenging “light-duty” policies reveal another limit on the comparative right of accommodation.  Many employers reserve light-duty assignments (for example, desk duty for a police officer) for employees injured on the job.  All but one court has upheld such policies, even though this ensures that pregnant workers are always excluded.

In theory, disparate impact law should compensate for some of the shortcomings of the PDA’s comparative right of accommodation by invalidating some of the harsh employment policies that make it difficult for women to work through pregnancy.  But, again, in practice, it has not proven helpful.  Although courts acknowledge the existence of disparate impact liability, many refuse to apply it in its true form to pregnancy cases.  They reject its use to the extent it might result in a pregnant worker being exempted from a general workplace policy or gaining access to an accommodation not otherwise available.  Even when courts are willing to consider disparate impact claims in true form, plaintiffs in pregnancy cases almost always lose because they lack sufficient statistical evidence or are unable to identify an employment “practice” that produced the impact.

The limits on the comparative right of accommodation and disparate impact protection mean, in effect, that pregnant women in many cases do not have the right to continue working if pregnancy has even minimally impaired their capacity.  For those without available leave, the failure to provide reasonable accommodations is tantamount to termination.  Even for those with leave, pregnancy can bring dire economic consequences (especially if the leave is unpaid) and lost opportunities for advancement.  The lack of accommodation means that women will continue to lose ground in the occupations in which they need to gain it most—those traditionally dominated by men.  Studies show that women are less likely to continue working through pregnancy when they hold jobs that require physical exertion.  Moreover, because pregnancy typically comes early in women’s careers, the repercussions of lost training, wages, seniority, or opportunities for advancement can be felt for decades. Pregnancy simply exacerbates the tendency of predesigned and inflexible workplaces and jobs to exclude women as they seek to integrate across the occupational spectrum.

These scenarios bring us back to the initial question posed—whether the pregnancy discrimination framework precludes women from attaining equal social citizenship.  This Article argues that accommodation is the link between pregnant working women and equal social citizenship.  The failure of current law to acknowledge a pregnant woman’s right to work despite temporary, partial impairments or risks systematically undermines the ability of women to attain workplace equality.  It shortcuts the careers of individual women, exacerbates the glass ceiling many women already face, and, perhaps even worse, reinforces a long history of occupational segregation.  This, in turn, is a failure of equal social citizenship because it renders women less able than men to capitalize on their innate talents and capacities because of a unique biological function.  It breathes continued life into a pattern, noted by Justice Ginsburg in her recent dissent in AT&T v. Hulteen, that “[c]ertain attitudes about pregnancy and childbirth, throughout human history, have sustained pervasive, often law-sanctioned, restrictions on a woman’s place among paid workers and active citizens.” ⁷

Accommodation mandates come with risks—resentment, cost, and a deterrent to hiring women, to name just a few.   However, we can learn from mandates in other contexts.  The ADA also provides a natural model for providing workplace accommodations, although judicial interpretations have undermined its intended effects.   Some states have taken a more targeted approach, imposing narrow, but important, pregnancy accommodation requirements on employers.  These mandates demonstrate that we can craft an accommodation right that serves the needs of pregnant workers while minimizing adverse consequences.

Conclusion

The story of pregnant women and work in the United States is an unfinished one.  The current pregnancy discrimination framework has been tremendously important in opening up the American workplace to women, most of whom will both work and become pregnant at some point.  But the same emphasis on individual capacity that was crucial to dismantling the long-held stereotypes about the limitations and incapacities of pregnant women now serves as a stumbling block to future progress towards workplace equality.  The lack of a basic right to reasonable accommodation of pregnancy-related disability overlooks the real physical effects of pregnancy and childbirth on women and their employment opportunities.  Doors have been opened, but not enough has been done to ensure pregnant women can make full use of their innate talents and capacities once inside.  A genuine commitment to equal social citizenship can be carried out only by a legal framework that accounts for both the capacity and the potential incapacity of pregnant women.

Acknowledgments:

Copyright © 2010 Georgetown University Law Center.

Joanna L. Grossman is Professor and John DeWitt Gregory Research Scholar at Hofstra University School of Law.