Here, the concern is not over some deviation from the one-on-one lawsuit.  Rather, the basic suggestion is to circumscribe what an ostensible individual action may do, by way of litigation or settlement, in order to prevent that lawsuit from exerting some binding force upon nonparties who are broadly similar to the parties involved.  The idea, in other words, is to constrain what individual litigation may do, precisely because such a proceeding is not a de facto class action empowered to act upon nonparties.

In recent years, variations of this concern have surfaced across seemingly unrelated contexts:  in the Supreme Court’s 2008 decision in Taylor v. Sturgell,¹ concerning preclusion principles and the procedural doctrine of “virtual representation”; in the Court’s 2007 decision in Philip Morris USA v. Williams,² regarding the constitutional due-process limits on punitive damages; and with respect to the widely-reported $4.85 billion deal in 2007 to resolve mass tort litigation over the prescription pain reliever Vioxx.³  Each of these situations merits scholarly attention in its own right.  My suggestion is that something deeper is going on here, but that its nature and implications remain undertheorized.

Each instance involves a situation of “embedded aggregation.”  In each, a doctrinal feature of what is ostensibly individual litigation—the scope of the right of action the plaintiff asserts, the nature of the remedy that the plaintiff seeks, or the character of the alleged wrong—gives rise to demands for the suit to bind nonparties in some fashion, beyond the ordinary kind of stare decisis effect that any case might exert.  An aggregate dimension, in short, is embedded doctrinally within what appears to be an individual lawsuit; and that aggregate dimension, in turn, gives rise to demands for a binding effect of a commensurately aggregate scope.

Taylor v. Sturgell provides the perfect backdrop for this set of issues.  Taylor involved the Freedom of Information Act (FOIA), which confers an undifferentiated right upon “any person” to request the disclosure of “records” that the federal government holds.⁴  The difficulty that this undifferentiated right presents is that, as to any given record, the universe of potential claimants who might assert a right to disclosure is without legal limits.

The Taylor Court held that constitutional due process forbids the judgment in one FOIA requester’s losing effort to compel disclosure from exerting preclusive effect upon a subsequent requester of the identical record, at least absent agreement or collusion between the two requesters.⁵  To hold otherwise—as some lower courts had attempted to do by developing a doctrine of virtual representation—would be to enable courts to “create de facto class actions at will.”⁶

The concern over nonparties in individual actions, however, extends well beyond FOIA litigation.  Under current doctrine, the limits on punitive damages as a matter of federal constitutional due process bespeak a similar concern.  In Philip Morris USA v. Williams, the Supreme Court held that the “Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties.”⁷  To do so, the Court reasoned, would be to punish the defendant “for injuring a nonparty victim”—in Williams, the many other Oregon smokers of the defendant’s cigarettes—without an “opportunity to defend against the charge” based upon the particulars of those nonparties.⁸  The Oregon court had never certified Williams to proceed as a class action.

On its face, the discussion of nonparties in Williams seems to dwell on the inputs to a punitive damages award in individual litigation rather than on the outputs in terms of nonparty effects.  With respect to allegations of extreme market-wide misconduct, however, the two cannot be so cleanly separated.  Prior to Williams, serious concern had emerged that punitive damages awards in seriatim individual lawsuits over the same course of extreme market-wide misconduct might amount, in the aggregate, to multiple punishment, such as to warrant a clampdown on the availability or application of punitive damages for later plaintiffs.

Williams holds that punitive damages are, at least in theory, exclusively about punishment of the defendant for the extremity of its wrong as to the particular plaintiff at hand, not as to nonparties.⁹  The Court nonetheless added that the jury still may consider harm to nonparties to assess the reprehensibility of the defendant’s misconduct vis-à-vis the plaintiff.¹⁰  As a result, after Williams, an ostensible individual action for punitive damages as to market-wide misconduct will continue to have at least some nonparty dimension—again, even though nonparties have not been brought into the suit.  The important point remains that Williams, too, grapples with how to regulate a kind of embedded nonparty dimension in individual litigation—here, under the Court’s due-process jurisprudence for punitive damages.

The concern that the disposition of ostensibly individual cases might gravitate over to a kind of class action in disguise is not limited to adversarial litigation.  The Vioxx settlement took the form not of a class action settlement but, rather, of a contract between the defendant manufacturer Merck & Company, Inc., and the small number of law firms within the plaintiffs’ bar with large inventories of Vioxx clients.  The contract described a grid-like compensation framework, but Vioxx claimants themselves literally were nonparties to that contract.  The enforcement mechanism for the deal consisted not of preclusion but, rather, of contractual terms whereby each signatory law firm obligated itself to do two things:  to recommend the deal to each of its Vioxx clients and—to the extent permitted by applicable ethical strictures—to disengage from the representation of any client who might decline the firm’s advice to take the deal.  Absent a signatory law firm’s commitment of its entire Vioxx client inventory to the deal, Merck would have the discretion to reject the firm’s enrollment, meaning that none of the firm’s clients would be eligible to participate.

The Vioxx settlement garnered (by a comfortable margin) the overall rate of participation from Vioxx claimants that Merck had specified as a precondition for its funding obligations.  In a public speech, one of the key dealmakers on the plaintiffs’ side explicitly touted the arrangement as a form of “mass settlement without class actions.”¹¹  Along similar lines, the federal district judge who shepherded the Vioxx litigation toward settlement went on to describe the proceedings as a “quasi-class action.”¹²  The terminology here is revealing.  The reference to a “quasi-class action” is the counterpart in the Vioxx setting to the Taylor Court’s concern over the creation of a de facto class action.  This is precisely the problem for critics of the Vioxx deal.

Absent a judgment capable of yielding class-wide preclusion, the glue to hold the Vioxx deal together ultimately consisted of individualized consent from each Vioxx claimant when the time came to accept (or reject) her signatory lawyer’s advice to enroll in the deal.  For critics of the deal, this individualized client consent is illusory—a kind of consent obtained only through the leveraging of mass client representation against itself.  On this account, the deal effectively pitted the economic interest of the signatory firms against their obligation to render advice that they tailored to their individual clients’ particular situations.  Further, the deal threatened dissenting clients with the prospect of having to start anew with alternate counsel, if the client could find any.  For all its details, however, the central thrust of this criticism should sound curiously familiar.  The insistence upon individualized client consent, unburdened by the strictures of Vioxx settlement contracts, is the counterpart in the world of mass-tort settlements today to the insistence upon individualized procedure in Taylor and Williams.

The doctrine of virtual representation, the constitutional law of punitive damages, and the settlement of mass torts via contracts with plaintiffs’ law firms clearly are not the same thing.  Still, cohesive consideration of these situations brings into focus the notion of embedded aggregation as an underexplored category within our modern civil-justice landscape.  I seek to initiate such a conversation by understanding embedded aggregation in terms of the right of action that a plaintiff asserts, the remedy a plaintiff seeks, and the wrong on the merits that the litigation concerns.  A situation of embedded aggregation arises whenever any of these features extends beyond the plaintiff in an individual lawsuit.  If so, then demands will tend to arise to bind, in some fashion, nonparties who are similarly situated, so as to bring the scope of resolution into line with the doctrinal feature that has an aggregate dimension.

The most revealing aspect of the concern that individual litigation somehow is verging into a quasi or de facto class action is this:  The features of Taylor, Williams, and the Vioxx litigation that make them situations of embedded aggregation—ironically enough—also, in all likelihood, would defeat efforts to aggregate them overtly as class actions.  The result is to leave the law today in a kind of procedural Catch-22, whereby embedded aggregation seemingly invites class action treatment, but such treatment is unavailable due to the very features that make the situation one of embedded aggregation.

In decades past, much debate centered upon the aspiration for the class action more or less to occupy the field of aggregate procedure.  The elaboration of a distinctive body of procedural doctrine on what the class action realistically may and may not do in the decades since the adoption of Rule 23 in its modern form have brought the remaining gaps in the world of aggregation into sharper focus.  I contend that the constraints on class certification that courts have elaborated over decades of real-world experience with the device are not hypertechnical bugaboos.  Rather, they stem from a well-taken notion of preclusive symmetry—an insistence that the plaintiff class ought not to be positioned to wield the bargaining leverage of a class-wide trial without, at the same time, affording to the defendant the assurance of a commensurately binding victory, were the defendant, rather than the plaintiff class, to prevail on the merits.

Drawing on the FOIA, punitive damages, and Vioxx examples, the law may frame an emerging prescription for situations of embedded aggregation in a world in which the modern class action does not, and will not, realistically shoulder the entire regulatory load.  The way out of the procedural Catch-22 in which the law finds itself consists of hybridization—the combination of individual actions with some manner of centralizing mechanism, just not always or inevitably the unity of litigation that the class action device generates.

For FOIA, the law might make such a move to specify what one might call a unity of forum for litigation that involves an undifferentiated right of action.  The practical goal would be largely to disable seriatim lawsuits over the same government-held record in courts spread across the country by specifying a single forum for such actions.  For punitive damages, developments in tobacco litigation contemporaneous with Williams embody a nascent and underdeveloped aspiration toward what one might call a unity of party—the notion that situating as plaintiff the government itself (with the aid of private whistleblowers empowered to litigate on its behalf) might best accomplish supra-compensatory relief.

The Vioxx deal underscores that the drive to identify some manner of centralizing or unifying mechanism in situations of embedded aggregation is not just the stuff of academic pipedreams.  In seeking to deploy mass client representation in mass tort litigation as a mechanism for closure, the Vioxx deal effectively crafts a near-unity of representation—if not of all Vioxx claimants by a single law firm (ala class representation), then in substantial part, due to the concentration of large Vioxx client inventories in the hands of a small number of signatory firms.  Further reform in the ethical strictures for what are known as aggregate settlements can refine and better regulate the use of this approach.

In sum, moving outside the parameters of the class action—to quasi, de facto versions that one cannot realistically fold into the class action device—means shifting into new settings a similar need for a centralizing mechanism and, crucially, for legal regulation of the manner in which that mechanism may exercise coercive power.  By bringing into sharper view situations of embedded aggregation in which the class action cannot shoulder the regulatory load, I seek to break down the prevalent supposition of a neat division between the perceived need for legal regulation of class actions and the supposedly benighted world of autonomous individual lawsuits.

For situations of embedded aggregation, the answer does not lie in a roving, undifferentiated mandate for class actions.  But neither does the answer lie uniformly in undifferentiated insistence upon notions of individual autonomy from the ancestral past of one-on-one litigation.  The elaboration in decades past of what is now a distinctive law of class actions has opened up a welcome conceptual space for experimentation with hybrid forms of rights, remedies, and wrongs that call for a commensurately hybrid approach on the part of the civil justice system.  The time has come, in short, to move the conversation about aggregation beyond the class action device—to broaden the menu of approaches available for our modern world of mass civil claims.

Acknowledgments:

Richard A. Nagareda is a Professor of Law and Director of the Cecil D. Branstetter Litigation & Dispute Resolution Program at Vanderbilt University Law School.

This Legal Workshop Editorial is based on Mr. Nagareda’s Article: Richard A. Nagareda, Embedded Aggregation in Civil Litigation, 95 CORNELL L. REV. ___ (forthcoming 2010).

Copyright © 2010 Cornell Law Review.

Unlike political scientists and law professors who link Supreme Court decision making to public opinion, we argue that Supreme Court Justices care more about the views of academics, journalists, and other elites than they do about public opinion.  This is true of nearly all Justices and is especially true of swing Justices, who often cast the critical votes in the Court’s most visible decisions.

Our argument is grounded in social psychology. In particular, we argue that Supreme Court Justices are not single-minded maximizers of legal or policy preferences. Instead, Justices seek both to advance favored policies and to win approval from audiences they care about. These audiences may include the public but are more likely to include elites—individuals and groups that have high socioeconomic status and political influence. The primary reason is that Supreme Court Justices themselves are social and economic elites. As such, they are likely to care a great deal about their reputations among other elites, including academics, journalists, other judges, fellow lawyers, members of other interest groups, and their friends and neighbors.

This view leads us to a different conception of the forces that shape the Court from the one expressed by most political scientists as well as legal scholars such as Barry Friedman and Jeff Rosen.¹ As those scholars see it, the Justices are devoted to achiev­ing what they see as the best legal policies, and they deviate from their most preferred policies only for strategic reasons—that is, when doing so advances those policies in the long run. Thus, to take one important example, the Justices accede to public opinion in order to maintain the Court’s legitimacy and its ability to make legal policy effectively.

In our view, in contrast, the Justices have concerns other than maximizing the achievement of their preferred legal policies, and prominent among those concerns is their interest in the regard of other people who are important to them. When the Justices deviate from their preferred legal policies, it may be because of strategic considerations, and some of these considerations relate to public opinion. However, it is more often the case that Justices are influenced by the views of other elites who are important to them for personal rather than strategic reasons. Thus, we agree with the scholars who emphasize that the Justices are primarily motivated by what they regard as good law or good policy; we disagree on the reasons that Justices sometimes deviate from the positions that they prefer.

Our argument proceeds in three parts. Part I calls attention to the various ways in which the Supreme Court is shaped by social and political forces, including changing social norms, appointments to the Court, and backlash from elected officials. Part II sets forth the social psychology model that we employ and, in so doing, criticizes the dominant political science models for failing to take account of the fact that Supreme Court Justices may care a great deal about what people in their social and professional networks think of them.  Part III backs up this claim, calling attention both to the limited influence of the mass public and to evidence suggesting that the Court is more attentive to the views of elites. Part III will also provide empirical support for the so-called “Greenhouse effect”—the pattern in which some Supreme Court Justices have drifted away from the conservatism of their early votes and opinions towards the stated preferences of cultural elites, including left-leaning journalists and the what some people think of as the liberal legal establishment that dominates at elite law schools.

 
I.
Social and Political Influences on Supreme Court Decision Making

Supreme Court decision making is very much a product of its times and, as such, there is little question that the American people play a significant role in the shaping of constitutional values. Elections, after all, determine who controls Congress, the White House, and much more. The American people, therefore, play an important role in shaping interactions between the judiciary and the other branches, including the determination of who is nominated and confirmed to the Supreme Court.  For example, Franklin Delano Roosevelt transformed Supreme Court decision making by appointing four pro-New Deal Justices from 1937 to 1939; likewise, the Rehnquist Court’s revitalization of federalism was tied to judicial appointments by Ronald Reagan and George H. Bush.

Furthermore, the Court is not immune from changing social norms and it is to be expected that the Justices’ opinions will eventually reflect changing social conditions.  Consider, for example, the nexus between the 1960s’ women’s movement and the Court’s increasing receptive­ness to constitutional attacks on gender classifications. Before 1971, the Court had never invalidated a gender classification under the Equal Protection Clause. By 1976 (with five Nixon and Ford appointees on the Court), the Court had deemed gender a problematic classification—a shift that matched profound change in gender roles, including the doubling, from 1940 to 1960, of the number of women working outside the home.

At the same time, we do not think that public opinion has a significant direct effect on Court decision making. The fact that a Court decision matches the majority view among the general public does not mean that the Court, in fact, took public opinion into account; likewise, Court decisions may diverge from public opinion even though they are shaped by social and political forces. More to the point, law professors and political scientists need to identify with some specificity whether majoritarian judicial review is tied to elected government pressures, changing norms over time (sometimes reflected in the appointments process), or public opinion. For this reason, although we agree with many of the specific claims (by Barry Friedman, Jeff Rosen, and others) about the majoritarian nature of judicial review, we disagree with the broader claim that modern Court decision making is directly influenced by public opinion to any substantial degree; rather, we believe that the effect of public opinion on the Court is primarily indirect. For example, the Democratic Senate’s rejection of Robert Bork’s Supreme Court nomination and Ronald Reagan’s subsequent nomination of Anthony Kennedy directly influenced judicial decision making; the voters who elected Ronald Reagan and Senate Democrats indirectly influenced Supreme Court decision making.

 
II.
The Social Psychology of the Justices

The belief that public opinion affects Supreme Court decisions rests heavily on the belief that Justices are solely interested in making good law, good policy, or some combination of the two. As many scholars see it, the Justices respond to public views because they are concerned with the Court’s efficacy as a maker of legal policy. According to this view, lacking concrete sources of power, the Court depends on its public legitimacy. Insufficient legitimacy will lead to negative consequences, including poor implementation of the Court’s decisions and attacks on the Court and its powers by the other branches of government. As a result, the Justices are hesitant to adopt lines of decisions that diverge sharply from public opinion or to engage in practices that conflict with public expectations of the Court.

The premise that Justices seek to advance policy and/or legal preferences is often accepted reflexively, without any consideration of the Justices’ potential interest in harmonious relationships with other Justices as well as power, prestige, reputation, self respect, and the other satisfactions that people seek in a job. For our purposes, however, it is more important to think about motivation at a deeper level.  Whatever goals the Justices seek to advance, there must be a motivational basis for that goal.

The social psychology model—which we embrace—emphasizes the basic human desire to be liked and respected. To what extent do Justices care about the esteem of the general public, and to what extent do they care about the esteem of groups that consist of people who are political and social elites? The answer seems self-evident. Like others, Supreme Court Justices want most to be liked and respected by people to whom they are personally close and people with whom they identify. For the Justices, those people are overwhelmingly part of elite groups. “Except for Justice Thomas,” as Judge Richard Posner observed, “the current Justices of the Supreme Court grew up in privileged circumstances and do not rub shoulders with hoi polloi.”² More to the point, because the Justices come from elite law schools, are overwhelmingly upper-middle-class or upper class, and travel in social and professional networks dominated by elites, the views of social and economic leaders are likely to matter more to the Court than to popularly elected lawmakers (who must appeal to popular sentiment in order to win elections).

None of this is to say that Supreme Court Justices will vote against sincerely held policy preferences in order to win favor with elite audiences.  It is to say that Supreme Court Justices are also interested in power and reputation and, for this reason, a Justice’s preferences and votes—consciously or unconsciously—are influenced by audiences they care about. Unlike political science models that argue that Justices will calibrate their decision making to stave off politically costly public disapproval, the social psychology model highlights the pivotal role that personal motivation plays in judicial decision making. Social psychology anticipates that the formation of legal policy preferences is driven by both ideological and personal motivations, so there is likely to be considerable agreement between Justices’ preferences and the preferences of the audiences that are most important to them. In contrast, any mechanisms that lead to agreement in preferences between the Justices and the general public are likely to be weaker.

 
III.
Analyzing the Empirical Evidence

What then of the empirical evidence?  Does it back up our claim that the Justices will respond more to elite groups in American society than to the general public?  We think so for three different reasons. 

First, contrary to the claims of many political scientists, the Court has little reason to moderate its decision making in order to preserve its effectiveness as a policy maker. Fundamental support for the Court—support that is captured by the concept of legitimacy—is strong and robust, and it is not fragile in the sense that negative reactions to the Court’s decisions threaten it. Not surprisingly, disagreement with the Court’s decisions may have negative effects on “specific support” for the Court, which focuses on the Court’s decisions or membership. However, these effects tend to fade over time.  More relevant to our concerns, even strong public opposition to decisions has little potential to erode the Court’s “diffuse support”—that is, its basic legitimacy. Consider, for example, the evidence we have on public reactions to Bush v. Gore.³  Rather than undermine the Court’s institutional status, Bush v. Gore had little impact on the Court’s legitimacy, even among members of the public who were unhappy with it.      

Second, there is little reason to think that the general public exerts much influence on the Justices.  This conclusion is supported by evidence on the agreement between the Court and the public and evidence on whether the Justices seek to align the Court more closely with public opinion.  Most significant, the Court and public disagree around 40 percent of the time, including some highly visible and salient issues, and on some issues in which the divergence is sharp. Examples include flag burning (on average, about three-quarters of the public disagreed with the Court in surveys in the two months after the decision), school prayer (in two surveys over the decade after the 1962 and 1963 rulings, about 70 percent disagreed), and eminent domain (a survey after the decision found 81 percent disagreement).

It is, of course, possible that the Justices do not know that their rulings are at odds with public opinion.  Yet, even after learning that their initial ruling was unpopular among the public, the Justices often adhere to that ruling.  Examples include school prayer, flag desecration, school bussing, and the use of the death penalty for a person convicted of the sexual assault of a child.   More than that, instances in which the Court shifts over to a popular position are often tied to lawmaker pressure or judicial appointments.  In other words, public opinion seems to play an indirect, not direct, role in explaining shifts in judicial decision making.

Another way in which the Justices might respond to public opinion is to adjust the overall ideological tenor of their decisions in response to shifts in public opinion. As the public becomes more liberal or more conservative, the Justices might move in the same direction in order to avoid endangering their public standing by creating the impression that they are out of step. Several studies have analyzed whether the Court is responsive to the public in this sense. Taken as a whole, these studies suggest that public opinion indirectly impacts judicial decision making.  For example, as noted earlier, shifts in Court doctrine on gender classifications reflected larger trends in society.  In this way, the Justices were not responding to public opinion; instead, their policy and legal preferences had changed in ways that matched larger social forces.

Third, opinion poll data and measures of the ideological shift of Justices over time both suggest that the Court is influenced by elites, especially left leaning journalists and academics. To start, people with high levels of education differ considerably in their opinions from people with less education. In the current era, the Court’s doctrines on controversial social issues are more consistent with the views of highly educated people than with the views of the populace as a whole. This is true of issues such as gender equality, sexual orientation, abortion, school prayer, flag burning, and affirmative action. On each of these issues, people with more education are more likely than other Americans to take positions that are typically identified as liberal. In each instance, by varying margins, the most highly educated group was more favorable to the Court’s position around the time of the ruling than was the remainder of the population. For example, 41.4 percent of individuals with education beyond an undergraduate degree supported the Court’s school prayer ruling; 14.9 percent of those with lower levels of education supported the decision.  On flag burning, the gap was 44.1 percent to 14.4 percent; on enemy combatants, 50 percent to 32.7 percent.

Evidence of Republican appointees to the Court veering left during their Court tenure is more striking, suggesting that the media, legal scholars, and leaders of the legal profession have helped influence some Justices.  On civil liberties cases that received front page coverage in The New York Times, changes in the Justices’ voting records are quite stark.  A comparison of the first two terms of a Justice’s tenure to the fifth through tenth terms reveals that the following Republican appointees have significantly increased their percentage of liberal voting: Warren (17%), Blackmun (15%), Powell (12%), O’Connor (14%), Kennedy (34%), Souter (20%).  And while other factors undoubtedly contribute to this pattern, these findings are consistent with psychological theory.

 
IV.
Conclusion

Supreme Court Justices enjoy a high level of independence from their political and social environment. Neither mass public opinion, the views of relevant elite groups, nor any other segment of the world outside the Court has control over the Justices’ choices. Because of that independence, the most powerful determinants of the Court’s decisions are the Justices’ own concep­tions of good law and good policy.

Even so, to a great extent the Court is a majoritarian institution, in that its policies tend to coincide with the preferences of policy makers in the other branches of government and those of the country as a whole. This tendency results from several different processes, including the appointments of Justices, pressures on the Court from Congress and the Executive Branch, and the effects of societal developments on the Justices’ thinking.

Scholars frequently identify another source of majoritarianism, the direct influence of the general public on the Justices. That influence is thought to derive primarily or solely from the Justices’ concern with their legitimacy. For reasons discussed above and in much greater detail in our published article, we think the legitimacy rationale is unpersuasive.  The Justices have little incentive to follow the will of the people and the Court as a whole has demonstrated considerable independence from public opinion.

In contrast, the Justices have strong incentives to maintain their standing with the elite audiences that are salient to them. Fundamentally, those incentives derive not from concern about support for the Court as an institution but from the human need for approval from individuals and groups that are important to them. Because the individuals and groups most salient to the Justices are overwhelmingly from elite segments of American society, it is the values and opinions of elites that have the greatest impact on the Justices. This is one important reason why Court decisions typically accord with the views of the most educated people better than they do with the views of the public as a whole. More to the point, the Justices advance their personal preferences by attending both to their preferred vision of legal policy and to the reference groups that matter most to them. Consequently, although the Justices will not diverge sharply from policy positions they strongly favor, the departures they do make are more likely to reflect their personal reference groups than the popular will.

Acknowledgments:

Copyright © 2010 The Georgetown Law Journal

Lawrence Baum is a Professor of Political Science, Ohio State University;
Neal Devins is the Goodrich Professor of Law and a Professor of Government, College of William and Mary.

Traditionally, this officer would face a dilemma. On the one hand, she could arrest the low-level targets based on the evidence she had already obtained, but in the course of prosecuting them she would be forced to reveal the existence of the wiretap to these low-level targets, who would likely inform the kingpin, which would likely prevent her from obtaining any additional evidence against her top target. Alternatively, she could sit idly by while known criminal activity occurred, perhaps at immediate risk to the safety of the community, in order to keep the wiretap secret and continue building her case against the kingpin.

The “hand off” is a law enforcement technique that seeks to resolve this dilemma by enabling what I call “midstream prosecutions.” A hand off occurs when information from an initial investigation such as a wiretap is “handed off” from one police unit to another. The receiving unit conducts a subsequent and so-called independent investigation, and the subsequent investigation becomes the basis of a criminal prosecution during which the initial investigation is never revealed to the defendant or to the court. The hand off therefore allows police to conduct midstream prosecutions during ongoing covert investigations without “blowing their cover.”

Although this technique appears to be commonplace, courts have seldom examined it because it is almost always kept secret from them. On the rare occasions when the procedure has been challenged in court, law enforcement officials have described it openly, apparently confident that it raises no constitutional or statutory problems, and that evidence produced after a hand off would be admissible under exceptions to the exclusionary rule even if the prior investigation were later found to be unconstitutional.

Despite this confidence, the hand off raises several legal and policy problems. In particular, although hand offs are defended by law enforcement authorities as a means of protecting legitimate ongoing investigations, the core elements of the hand off exist whenever a prior investigating authority provides a tip to another unit and then seeks to wall off the prior investigation from the subsequent one. The effect, whether or not there is a legitimate justification, is to shield a subset of police investigatory conduct that contributes to a current prosecution from both judicial and adversarial scrutiny. The reasons to be concerned about the procedure revolve around the fact that there is no judicial scrutiny to ensure that legitimate reasons for the hand off exist every time it is used. Because there is no judicial scrutiny, the hand off enables and perhaps encourages police to conduct prior investigations that overstep constitutional constraints on their power, secure in the knowledge that they can “wall off” the prior investigation and still prosecute any crime they may discover, so long as the information revealed by the prior investigation can be “rediscovered” by legitimate means in a subsequent operation.

Put aside for a moment the problem of the outright crooked cop. The hand off is not necessary to enable Fourth Amendment violations by a hypothetical police officer with no regard for the Constitution. It is conceivable that this officer could covertly break into your home, discover something incriminating, and then engineer rediscovery by means that would pass judicial muster without ever handing off a tip to another officer or serving up ill-gotten evidence to the agents of another sovereign. The hand off is unlikely to change this wanton malfeasant’s behavior.

The much more troubling problem is the impact the hand off might have on the behavior of the honest, enterprising police officer who vigorously fulfills her obligations of service to the community by investigating crime up to the very limits allowed under the Constitution. For this officer, the availability of the hand off threatens to alter fine judgments about what constitutes good, aggressive police work and what constitutes an unreasonable invasion of privacy. It does this in at least two ways. First, the hand off makes it easier to “get away with” marginally invasive behavior because that behavior is unlikely to be scrutinized by a judge. Even for the honest officer, this may subtly influence decisions about how much marginal activity to conduct, or how to conduct marginal activity. But perhaps more importantly, if the officer believes that the hand off legally cleanses evidence obtained in a prior investigation that may or may not have been unlawful, then the officer is given to believe that under the Fourth Amendment what a suspect doesn’t know doesn’t hurt him. In other words, an officer might conclude that the reasonableness of a search depends not only on whether there is probable cause to support it but also on whether, if the search is carried out, its target will know about the search and feel that her privacy has been invaded. I am not suggesting that this scrupulous officer, once equipped with the hand off, will go berserk and launch a series of patently unconstitutional covert searches, but I am suggesting that the hand off will blur this officer’s judgment about what is “reasonable” in covert searches. This blurring will expand government snooping at direct cost to societal interests in privacy.

* * *

In my view, the hand off is not per se illegal. My conclusion is contrary to Whitaker v. Garcetti,¹  the only case to directly address the merits of the hand-off procedure.That court held that the mere fact that the hand off conceals a search from a post-hand-off criminal defendant creates a constitutional violation because it deprives that defendant of his ability to challenge the pre-hand-off search in court. I disagree because I cannot find a reasonable basis for such a broad conclusion. At its root, the Whitaker holding relies on a blanket requirement that the government must provide people with the information they need to enforce their substantive rights. This extraordinarily broad principle would seem to require disclosure of any part of the long course of any investigation that might potentially implicate Fourth Amendment rights, so as to enable the defendant to scour that conduct for possible Fourth Amendment violations. Nor is there reason to think that Whitaker’s logic should be restricted to the Fourth Amendment context. Applying the same reasoning to the Fourteenth Amendment, would the government be obliged, for example, to analyze its “covert” employment practices (such as personnel evaluations that are not fully disclosed to employees) in order to look for actions that potentially violate the Equal Protection Clause, and then disclose those actions to all the affected employees? And who is to judge what conduct might potentially violate a constitutional right? On what standard? At what cost?

Because I cannot support Whitaker’s conclusion, I see no basis for holding the hand off per se illegal.  But nor do I believe that the hand off cleanses an unconstitutional pre-hand-off search of its taint.  In other words, contrary to the government’s litigating position in Whitaker and other cases, the hand off is not per se legal. In at least some hand offs, an illegality in the pre-hand-off search would render evidence obtained after the hand off inadmissible under the Fourth Amendment and the exclusionary rule, or the federal wiretap statute, or both. Moreover, even though many hand offs are probably not forbidden by current law, there is ample reason to conclude that the unconstrained hand-off procedure offends the social values expressed in the Fourth Amendment, the exclusionary rule, and the federal wiretap statute. In particular, it undermines the exclusionary rule by creating a path for otherwise excludable evidence to be introduced in post-hand-off prosecutions, which is especially problematic because there is reason to believe that pre-hand-off searches may regularly violate the Constitution, even if they do not always do so.

* * *

Because of the special risks that concealment of pre-hand-off searches creates to the values of privacy reflected in the Fourth Amendment, the exclusionary rule, and the federal wiretap statute, I argue that it makes sense to impose some kind of disclosure obligation. But as we consider possible policy responses to the hand-off procedure, it is important to keep in mind that, notwithstanding the risks it creates, the hand off also serves an important public interest by enabling law enforcement authorities to pursue midstream prosecutions without ruining long-term investigations. A blanket disclosure-to-defendants rule would eviscerate the valuable public purpose that the hand off serves because it would make it impossible to bring midstream prosecutions that arise from legitimate wiretaps without making the existence of pre-hand-off searches a matter of public record. Accordingly, I sketch out a couple of proposals that are designed to support a limited obligation of disclosure to courts. This limited disclosure obligation is intended to allow concealment of pre-hand-off searches from defendants when legitimate investigatory circumstances justify concealment, and to require disclosure of pre-hand-off searches to post-hand-off defendants in all other cases. These sketches are not intended to be complete or comprehensive, but rather to begin a dialogue on how courts and/or legislatures ought to address both the benefits and the risks of the hand-off procedure.

One possible solution would be to introduce a qualified disclosure obligation that applies to all hand offs and is similar to the notice and disclosure rules under the federal wiretap statute, Title III.  This obligation could require police to (1) notify the court that authorized a wiretap or search warrant whenever it leads to a prosecution, and (2) notify the court in which the prosecution occurs that the evidence derived from the pre-hand-off search. Either court would then have discretion to inform the relevant defendant of the existence of the pre-hand-off search, unless the police could show cause that the pre-hand-off search ought to remain secret in order to support a legitimate ongoing investigation (and satisfy the judge that there had been no impropriety with respect to the defendant being prosecuted). As compared to the ex ante permission-from-the-court solution proposed below, this ex post notice-to-the-court requirement would enable police to conduct hand offs more quickly and efficiently, on very short notice, because they would not be required to apply for and obtain prior authorization between learning about suspected criminal activity and conducting a post-hand-off investigation. Moreover, because this disclosure obligation would be triggered by a post-hand-off prosecution, and not by the hand off itself, it might avoid unnecessary bureaucratic burdens involving hand offs that never result in prosecutions. In such cases, there is less reason to suspect that police have impermissibly invaded anyone’s privacy, because they do not ultimately obtain a benefit (i.e. a prosecution/conviction) that might have motivated such an invasion. Put differently, the deterrent effect of the disclosure rule will not be diminished if judicial scrutiny is applied only to the cases in which the police seek a tangible benefit from the use of the procedure.

Alternatively, law enforcement authorities could be required to obtain the permission of a magistrate prior to conducting a hand off. This magistrate would review the circumstances leading to the hand off to ensure that the pre-hand-off investigation was not a pretext for investigating the proposed target of a post-hand-off investigation and to evaluate the need for maintaining the secrecy of the pre-hand-off investigation. This magistrate might also require periodic updates to ensure that the need for secrecy remained current and pressing, just as wiretaps must be regularly reapproved in order to stay active. Whenever the need for secrecy (either to protect the ongoing pre-hand-off investigation, or the pre-indictment post-hand-off investigation) lapsed, the authorizing magistrate would immediately inform the hand-off defendant of the existence of the pre-hand-off search and the hand off.

A warrant-like process would carry many of the same benefits and problems as the ex post notice-to-the-court requirement discussed above. It would enable legitimate midstream prosecutions without jeopardizing the larger ongoing investigation, and it would likely prevent abuses by requiring a judge to separately pass on both the legitimacy of the hand-off and the need for secrecy. Although it is possible that requiring prior authorization would hamper some investigations, this problem could perhaps be circumvented by allowing for ex post authorization under exigent circumstances and within a short period of time, say twenty-four hours.

Finally, simply educating criminal defense attorneys about the hand-off procedure, and encouraging them to ask police and prosecutors about prior investigations and hand offs as a matter of routine can address some portion of the threats to privacy and fairness that the hand off creates. Even if a disclosure obligation is not formally imposed, and even though police and prosecutors may not feel obliged by any of the legal provisions discussed above to volunteer information about a prior investigation to a hand-off defendant, they might well disclose it in response to direct questioning. And if a given investigation is revealed upon questioning to be the product of a prior investigation, defendants would presumably be entitled to discovery on the prior investigation to support a possible motion to suppress.

Conclusion

The hand-off procedure poses a serious threat to privacy. The policy rationale advanced by law enforcement in support of the procedure, namely enabling midstream prosecutions during ongoing covert investigations, is obviously an important and valuable end for society to pursue. But an unconstrained hand-off procedure gives police too much discretion because it enables them to unilaterally wall off entire swathes of investigatory activity not only from defendants but also from courts based on nothing more than a phone call from one cop to another.

Because the need for bringing midstream prosecutions is legitimate, an appropriate solution must balance that need against the public interest in protecting Fourth Amendment rights. Accordingly, I have sketched two tools that could be used to impose a qualified disclosure obligation, each of which seeks to get information to defendants themselves wherever practicable while enabling police to avoid full disclosure upon a showing of exigency to a judge. Although ex parte judicial scrutiny is a poor second-best to full adversarial scrutiny of police tactics, it would represent an enormous improvement over the current system, in which police with the hand off in their investigatory repertoire can theoretically conduct any kind of covert search they want to, secure in the knowledge that they can both use the information uncovered in criminal prosecutions (so long as it can be “rediscovered” by open and lawful means) and keep the investigation hidden from both courts and defendants indefinitely.

Acknowledgments:

The author thanks Dean Larry Kramer and Professors Joseph Bankman and Robert Weisberg for their immensely valuable comments and suggestions.  Thanks also to Professor Pamela Karlan for her mentorship and encouragement.  Finally, and most of all, the author thanks his wife, Jocelyn, for her unfailing support and patience, upon which he depends completely.

Copyright © 2010 Stanford Law Review.

Micah Block is a 2009 graduate of Stanford Law School. 

This Legal Workshop Editorial is based on the following Law Review Note: Micah G. Block, Note, The Hand-Off Procedure or the New Silver Platter: How Today’s Police Are Serving up Potentially Tainted Evidence Without Even Revealing the Search that Produced It to Defendants or to Courts, 62 STAN. L. REV. 863 (2010).

As a descriptive matter, I take Cuéllar to be identifying a paradox in both the modern and historical task of homeland security.  The need for security is perceived to involve strong and serious legislative delegations; a check on that security tends to come not from the courts, nor from the usual strictures of administrative process, but from Congress itself.  And so, he observes, a massive reorganization of the security bureaucracy tends to result in a massive increase in congressional oversight.  But the paradox lies not only in the strange balance between broad delegations and close supervision.  The problem, it seems to me, also involves questions of institutional competence.   Congress is not adept at the mundane task of agency supervision—at least not always so; proof of this lies in its willingness to delegate a great deal of day-to-day supervision to the courts and the public, through notice and comment and “fire alarm” notifications, as McNollgast has explained.² Even when Congress does get involved, the expansive legal powers granted to these security superagencies can give Congress less of an angle for the kind of close supervision it perceives as necessary (though this problem is less severe for Congress than it is for the courts, who must defer to broad legal delegations).

I also understand Cuéllar to be identifying a trap for an unwary Congress in broad delegations that Presidents go on to define—sometimes aggressively, as Franklin D. Roosevelt began to do with the FSA and as George W. Bush did with DHS.  Congress, in Cuéllar’s view, needs to think carefully about the decision to create a broad delegation, given that missions of such agencies have a way of evolving.

Second, Cuéllar is arguing that the technique of bureaucratic reorganization can, in fact, serve a purpose.  At least from Roosevelt’s perspective, the creation of FSA served policy goals; by combining the agencies, Cuéllar argues, the Roosevelt administration could better control them.   To this end, the FSA is an interesting data point, but the usefulness of central control is still not clear.  After all, following Hurricane Katrina, President Bush was criticized for having placed FEMA in DHS.³ In my view (and in the view of others), the reorganization distracted FEMA’s attention from national disaster preparation, making the agency’s response to the hurricane less effective.  Centralizing many bureaucratic functions in one agency can make the agency unwieldy and impossible to supervise, rather than docile and responsive to political oversight.  The example of an agency that did not groan under its own weight is some evidence to the contrary—but the FSA did not enjoy a long life.⁴  Rather than winning the day on this matter, then, I think that Cuéllar has opened an avenue for future research.

Third, Cuéllar observes that security can—and did—serve as an organizational principle for both the Department of Homeland Security and the old FSA.  Yet he notes that much of the political advantage of big security agencies lies in the malleability of the term “security.”

That “security” confers power is not new, but Cuéllar’s article usefully delves into some of the reasons why it is important.  Using the example of the FSA, he argues that claims of security can shape public perception and motivate legislators to support an administration’s priorities.

But I would like to spend the most time in this Essay worrying about Cuéllar’s final critical point.  That point involves the redefinition of security that comes with a reorganization.  As Cuéllar explains, the Roosevelt administration spent significant capital on the FSA because it believed that the agency could, by defining security expansively, contribute to health, education, and public welfare as well as to domestic and international security.  The modern-day DHS, by reaching so broadly into state, local, and national law enforcement and by integrating immigration, customs, counterterrorism, and drug enforcement, among many other things, also contains more than a whiff of the suggestion of total war.  And total wars are worth fighting only if absolutely necessary.  I think that actual domestic security almost always involves more bureaucratic slicing and dicing than it does consolidation.  And in the same vein, although security and social welfare are linked in grand theory, the best practice, endorsed by most modern bureaucracies under most conditions, is to keep social programs separated from the national defense.⁵

I think this separation is generally a good idea, and I think that it is an idea that was challenged by the FSA and continues to be challenged by DHS and the War on Terror, to little good end.  Today, considering the psychic space that terrorism occupies and the large budget appropriations available to agencies that can develop a War on Terror–based strategy, it is unsurprising that almost every agency has taken up the antiterrorism task.  None more so than DHS, of course, but the point here is that modern agencies are mimicking DHS rather than separating their goals from its goals.  In addition to creating a modern counterpart to Roosevelt’s security superagency, the Bush administration and Congress have reimagined existing agencies in terms of their roles in securing Americans against terror.  And so environmental protection has developed an antiterror component, as has the provision of housing services.  These new regulatory responsibilities have been difficult for agencies to handle, suggesting that a sober reevaluation of the involvement of civilian agencies in counterterrorism would be a good thing.

I think there are three reasons why agencies often fail at dealing with national security when they have otherwise been tasked with handling other questions of economic security and personal well-being.  First, there is a problem of fit—that is, the problem of using civil rules to find and deter terrorists, perhaps the quintessential uncivil actors.  Agencies often deal with economic security by extending benefits, but on conditions, such as granting licenses to financial institutions in return for voluntary compliance with reporting requirements.  But this typical mode of action is ill suited to reach terrorists who can opt out of regimes that depend on voluntary participation and who comprise a tiny segment of the public as a whole.   In Cuéllar’s terms, agencies like financial regulators may be good at one type of security (financial), but bad at another (national).

Second, these security-based antiterrorist measures diminish administrative effectiveness by going to extraordinary lengths to privilege agency discretion, thereby reducing agency accountability and, predictably, resulting in increasingly arbitrary, unreviewable agency action—a problem of overdiscretion.  It is a maxim of administrative law that the authority delegated to administrative agencies should be paired with safeguards on the abuse of that authority.  Accordingly, administrative agencies have traditionally operated publicly and openly, and usually pursuant to a tested and established framework of rules.  Agency rulemaking is governed by requirements for public notice and comment,⁶ while agency adjudication is subject to judicial review or, at a minimum, supervision by senior executive branch officials.⁷ But the administrative initiatives against terror use security concerns to justify changes from what have traditionally been participatory, reviewable rulemaking or adjudicatory processes to singular acts of discretion that are often undertaken in secret and thus effectively insulated from public view and from judicial or even supervisory review.  Furthermore, these measures often place this decisionmaking authority in the hands of midlevel or even street-level bureaucrats, such as office directors in the Department of the Treasury in the case of the terrorist-financing programs.  The allocation of discretion down to bureaucrats all but insulated from oversight has, at least in the case of antiterrorism regulation, become a license for arbitrariness.

Third, security concerns have led to the expansion of agency powers to regulate beyond areas of agency expertise.  Since 9/11, our bureaucracy has folded new industries into its regulatory purview and has adopted new investigative and rulemaking responsibilities—often responsibilities that are difficult to distinguish from criminal law enforcement.  Max Weber posited that bureaucracies would develop rational and task-specific expertise.⁸ But the new antiterrorism responsibilities of agencies have ignored this Weberian maxim.  Instead, agencies have been tasked with uncharacteristic, noncivil responsibilities, and have been told to fulfill those responsibilities without supervision.  The result has been predictably inexpert.  Security concerns may give agencies more power, but they do not guarantee that an agency will be able to use this power effectively.

As a result of these problems of fit, overdiscretion, and inexpertise, civil agencies have produced initiatives that burden proxy groups—most often the industries they regulate, but not terrorists.  This proxy problem means that the administrative war on terror overwhelmingly burdens law abiders who willingly participate in civil administrative schemes.⁹ Agency experience with regulation justified by national security confirms Cuéllar’s fears about its possible abuse.   Arguments of security seem to make it easier for agencies and executives to justify overreach, but the end result may be both inefficient and undesirable.

At bottom, Cuéllar contends that there is an implication from this contingent use of the security term.  He argues that we need a definition of security in the modern nation-state.¹⁰ But, even if we should worry about repurposing civilian agencies as parts of the security apparatus, perhaps what we really need is not a definition, but recognition that we need to pay closer attention to the many definitions of security.  It may be that defining the term is impossible—agencies like the Committee for Foreign Investments in the United States have found it impossible to define terms like national or essential security with any precision.¹¹ We must be careful that legal ideas designed to apply to narrowly defined problems of security are not applied to legal problems using broader definitions—or applications—of the same term.

Acknowledgments:

Copyright © 2010 University of Chicago Law Review.

David Zaring is an Assistant Professor of Legal Studies at the University of Pennsylvania.

 
I.
Dueling Hired Guns

Still, in almost every case the factfinder sees a “battle of the experts”—but each expert is selected by, affiliated with, compensated by, and apparently biased toward a particular party. The current system of litigation allows lawyers for both sides in a case to handpick an expert that is likely to be favorable (selection bias), coach and prepare the expert to be the litigant’s champion (affiliation bias), and then pay the expert—just so long as her testimony remains favorable (compensation bias). An overwhelming body of psychological research shows how expert witnesses, who are chosen and prepared in this way, become biased towards their sponsors.

This system of dueling hired guns reduces both the perceived and actual accuracy of the factfinding process. Only one of the two hired-gun experts can be right, and judges or jurors cannot reliably determine which one.

Of course, the litigants can always try to use cross-examination to reveal the biases of their adversaries’ experts, and a factfinder may decide simply to ignore scientific evidence that it deems to be tainted by a litigant, just as the Supreme Court did in one recent case.¹ Yet, juries generally do not have that luxury, since all the expert evidence they hear appears to be tainted by litigant biases.  If they ignored all the tainted testimony, then there would be nothing left.

Thus, we have reason to worry that the litigation system is failing to give us the right outcomes reliably in cases that are heavily dependent on expert testimony, such as medical malpractice litigation. Without correct litigation outcomes, the law fails in its functions of deterring wrongdoing and compensating victims, while imposing gigantic transaction costs.

More profoundly, the way courts use experts contributes to public skepticism of science and claims of objective truth. If every serious legal dispute devolves into a battle of hired-gun experts, the public may come to believe that “there is no objectively correct scientific truth, only partisan witnesses and the lawyers who retain them.”² This brand of relativism, compounded by the mass media’s reflexive notion that there are two equally valid sides to every story, makes it difficult to make informed and intelligent policy choices about a wide variety of questions, from climate change and school curricula to vaccinations and stem cell research.

 
II.
Resolving the Dilemma Between Self-Interest and Objectivity

One might suppose that the hired-gun problem is a necessary consequence of—and a price to be paid for—the adversarial system, which is run by self-interested litigants. The alternative would appear to be the inquisitorial system used in much of the rest of the world, in which the judges are much more than umpires; instead, they get into the game, appointing their own experts to find the facts. But even in America there is the little-known but explicit Federal Rule of Evidence 706, which allows judges to appoint neutral experts. Still, judges almost never use Rule 706, since it pushes against the deeply ingrained norms, roles, and incentive structures of the adversarial status quo. Court appointment also raises real questions about accuracy and fairness, since the judges have no incentives to catch or correct errors made by their appointed experts. A jury may suppose that the court-appointed expert is infallible, giving her more credence than she is due. If there is such a singular expert view of the truth, why have juries at all?

The dilemma beteween self-interest and objectivity remains unresolved. To date, the litigation system has not yet found a way to provide factfinders with reliable and unbiased expert signals while still leaving the development of cases in the hands of the self-interested litigants who have incentives to root out errors in expert testimony.

 
III.
Blinding Experts

A method is available to resolve this dilemma—one inspired by the idea that “justice is blind,” by the “veil of ignorance” found in political theory, and by the gold standard of scientific research: the double-blind, randomized study. To blind expert witnesses in civil litigation, a litigant would request and pay for an expert evaluation of her case, and an accredited intermediary, interposed between the litigant and the expert, would apply two blinds:

1)The intermediary would blind the litigant by selecting a qualified expert in a way that prevents the litigant from handpicking a favorable expert. This could be done either by the intermediary randomly selecting one expert for each requesting litigant from a pool of prequalified experts or by an agent of the intermediary handpicking an expert without knowing the identity of the sponsor.

2)The intermediary would blind the expert so that the expert would render her initial opinions without knowledge of who is sponsoring the research or which outcome the sponsor prefers. The intermediary would assemble a dossier of the predicate facts of the case and send this dossier and the litigation question to the chosen expert. The intermediary would compensate the expert regardless of the substance of her opinions. The blind would be lifted only after expert rendered and recorded her initial opinions.

Though this procedure cannot guarantee that expert testimony will always be true, it does eliminate the litigant-induced selection, compensation, and affiliation biases that presently degrade the accuracy of litigation witnesses.

 
IV.
Exploiting the Adversaries’ Interests

Although it may take some upfront investment to create the blinding intermediary, this solution does not require litigants to be altruistic, nor does it require intervention from judges or regulators who may be indifferent to the quality of expert testiomny. Instead, the blind procedure is a tactic in the hands of litigants who have incentives to win. The incentive arises from the assumption that lay factfinders (whether judges or jurors) would find blind experts to be more credible and more persuasive than unblind experts, thus providing a litigant who procures a favorable blind expert with a greater likelihood of prevailing at trial. This advantage improves the settlement value of the case for the litigant and also increases the likelihood of settlement, thus saving transaction costs for the litigants and the courts.

Although blind experts will have a credibility advantage, litigants may worry that they will be less persuasive than hired guns in other respects. A litigant may be able to handpick a hired gun for her credentials or her personality on the witness stand, and perhaps even put words into her mouth, while a blind expert may be more bland, even if she is more objective. For this reason, litigants should be allowed to bring to trial both a blind expert and an unblind expert (just as Rule 706 allows a litigant to use a hired gun even when there is a court-appointed expert who happens to be favorable). Thus, since the litigant can have the best of both worlds, the blind expert can only help the litigant’s case.

Importantly, the procedure allows litigants to decide whether to disclose a blind expert’s opinion to the factfinder after the litigant learns of the substance of the expert’s opinion. If a blind opinion is unfavorable, the litigant would be permitted to hide it (and the fact that he used the blind procedure at all) as attorney work-product. If an opinion is favorable and a litigant chooses to designate the expert for testimony, then waiver doctrine would require him to disclose any other blind opinions he sought, thereby preventing an iterative selection bias. These outcomes are implied by the current rules of attorney work product protection and would require no changes to the Federal Rules of Evidence.

Thus, for a litigant, the worst-case scenario is that a litigant has paid for an expert evaluation of a case that turns out to be unfavorable, in which case the litigant sacrifices only the transaction cost of getting the initial opinion. The large potential gain and small potential loss sets up a “prisoner’s dilemma” in which both litigants will want to try the procedure.

 
V.
Enhancing Accuracy

Even with the disclosure discretion described above, blind experts that appear before a court would be more reliable than both hired guns and single court-appointed experts. Indeed, when a single blind expert testifies for one side at trial, he is more likely to be correct than if he had rendered the same opinion in his laboratory outside of litigation. This is because a second blind expert has effectively checked his work. When both litigants in a case try the procedure, two experts independently will render opinions on the same case and the procedure sends a signal (i.e. one expert) to factfinders only when the two blind experts agree. If, on the other hand, one of the the two blind experts errs, and they therefore disagree, the jury will see neither or both of them. This is the error-catching function that is inherent in the adversarial use of the blind procedure.

For example, suppose that hired-gun experts are only 50% accurate, but that court-appointed experts would be 95% accurate (if courts would only use them). On those same assumptions, due to the power of two independent assessments of the truth, a single blind expert appearing at trial would be 99.7% accurate. In this sense, the blind provides the factfinder with the objectivity of inquisitorialism without sacrificing the error-checking function of the adversarial system of litigation.

Blind expertise could have a profound and positive impact on the legal system. In the context of medical malpractice litigation, for example, researchers have compared medical malpractice trial outcomes with the opinions of independent experts and found that juries “get it right” only about 70% of the time.³ Thus, we should not be surprised to find lots of money wasted on needless defensive medicine, while some genuine medical malpractice proceeds undeterred. Simulations based on that same data suggest that, if used by the litigants, blind experts would tend to guide factfinders to the truth, increasing the accuracy of trial outcomes to perhaps 97%. Because the blind procedure promises to improve the accuracy of outcomes efficiently, it is a more attractive solution than other efforts for medical malpractice reform, such as arbitrary caps on damages or complicated alternative systems of adjudication.

~ ~ ~

Overall, the blind procedure requires little or no change to the law, but it does require some upfront investment to find or create a blinding intermediary. Blind expertise is likely to be an extremely efficient reform to civil litigation—one that dramatically changes litigation outcomes for the better.

Acknowledgments:

Copyright © 2010 NYU Law Review.

Christopher T. Robertson is a lecturer at Harvard Law School.

At first glance, Iqbal is different from Twombly in one obvious way: Justice Souter, the author of Twombly, penned the dissent in Iqbal, arguing that the majority misapplied Twombly’s articulation of the Rule 8 standard. But close examination of the opinions reveals that the opposite is true: Iqbal extends and codifies the rule and rationale of Twombly. In so doing, Iqbal, like Twombly, gives district court judges the most powerful case management tool of all—a broader authority to simply dismiss a case outright. And by taking the view that dismissal may well be the better part of prudence, both cases mark out a new era of pleading practice far less charitable to plaintiffs and rewrite several Court precedents on pleading and practice in the civil rights context.

I

The most controversial aspect of Twombly was the Court’s decision to “retire[]” Conley v. Gibson’s “no set of facts” language. Under Conley, courts at the 12(b)(6) stage merely took a quick look at the complaint to determine if the plaintiff could prove some set of facts entitling him to relief. But the Court viewed this standard as overly permissive, as it permitted a plaintiff to proceed to discovery on a frivolous claim so long as his pleadings did not foreclose the possibility of establishing some set of undisclosed facts to support recovery.

The Twombly Court replaced that standard with a new two-step method. Rather than merely taking a quick look at the complaint, district courts should first carefully examine the complaint to smoke out pure “legal conclusions” resting on the other “factual allegations.” After removing those legal conclusions, district courts should weigh the remaining facts and determine if they are sufficient to render the plaintiff’s claim plausible. Yet while that test sounds simple, it proved to be difficult to implement. Lower courts divided on two primary issues–what constituted a “legal conclusion,” and what level of factual specificity was needed to make a claim “plausible.” That confusion, in turn, led to Iqbal.

In a 5-4 opinion authored by Justice Kennedy, the Supreme Court elucidated the Twombly standard. The Court defined “legal conclusions” as “formulaic recitation[s] of the elements” of the plaintiff’s legal claim, and urged district courts to discard those allegations as conclusory. For example, in Iqbal, the Court dismissed Iqbal’s allegations that Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed” to subject Iqbal to harsh conditions of confinement on account of his race, religious, and national origin; that Ashcroft had served as the “principal architect” of the policy, and that Mueller was “instrumental in adopting and executing” the policy. According to the Court, these allegations did little more than parrot back the elements of Iqbal’s case. And once they were removed from Iqbal’s complaint, the remaining allegations were as consistent with legal as with illegal conduct, meaning that Iqbal’s claims were not legally plausible.

In a moderately surprising twist, Justice Souter–the author of Twombly–dissented in Iqbal. In his view, the allegations dismissed by the majority as conclusory were anything but. Instead, viewed in light of the “subsidiary allegations” made elsewhere in the complaint, the allegations singled out as conclusory “are no such thing.” (In essence, Justice Souter echoed Justice Stevens’ dissent in Twombly, arguing that it was improper to view the allegations in the complaint severally rather than jointly.) Nevertheless, at the end of the day, Iqbal decisively rejected Justice Souter’s perspective. Now, pleading cases will no longer turn on the nature of the complaint as a whole. Instead, the key dispute going forward will be over which allegations to excise as “conclusory.”

II

On a practical level, Twombly and Iqbal establish a clear practice and procedure for evaluating a complaint. First, district judges must pore through the complaint for any allegations that appear “conclusory”—allegations that are “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” In other words, judges should keep an eye out for allegations containing little more than elements of the legal claim at issue. Then, judges should weigh the remaining facts against the prevailing legal standard and determine if the claim crosses over the still-somewhat-muddy threshold of “plausibility.”

Phrased this way, the Twombly-Iqbal standard begins to look suspiciously like a heightened pleading standard–something the Court has formally rejected time and time again. Of course, in both Twombly and Iqbal, the Court disavowed heightened pleading standards–explicitly in the former, and implicitly in the latter. And in one sense, it is true that the Court has always rejected heightened pleading standards; after all, every time defendants have asked for a more detailed level of pleading in a specific category of cases, the Court has rejected their request, often unanimously.

In another sense, however, both Twombly and Iqbal do—and if their language is to be respected, must—impose a heightened pleading standard. While neither case raises the pleading requirement for one group of cases relative to others, both raise the pleading requirement across the board, at least relative to the Conley standard. Compared to Form 11 (an embodiment of Conley) both Twombly’s and Iqbal’s complaints state a claim. And while the Court labels those complaints as legally, rather than factually, deficient, the fact remains that more facts would have saved them both. Put differently, if Iqbal had evidence of discrete instances where Ashcroft and Mueller displayed an improper motive, and Twombly had more specific evidence of an actual agreement, both cases would have proceeded to discovery.

To be sure, the Court may well be right to adopt a heightened Rule 12(b)(6) standard; scholars both on and off the bench have explored the problems of class action and discovery abuse and called for such reform. To the extent there is a problem, it lies instead in the Court’s approach. As seen from the lower courts’ reaction to Twombly, the way in which pleading reform occurs makes a large difference in how clear and lasting it will be. Single-decision explications of a new pleading standard are necessarily confusing and incomplete, especially when the new standard is disguised as a mere extension of the old. And there are distinct advantages to legislative or administrative rulemaking versus judicial rulemaking, most importantly the ability to answer simultaneously many questions about the new rule rather than wait for individual cases to come forward and present new wrinkles–something the Court itself recently recognized in Mohawk v. Carpenter. In that sense, one can view the Court’s decision to ramp up the 12(b)(6) standard as a “legislative” act dressed up in “judicial” clothing.

III

It seems undeniable, if the flurry of recent proposed congressional “Iqbal reform legislation” means anything, that Iqbal has important ramifications for the future of Rule 8. Yet without saying so explicitly, Iqbal also dramatically shifts the Court’s jurisprudence on pleading in civil rights cases. In particular, Iqbal undermines at least two prominent civil rights precedents and makes it significantly harder for plaintiffs adequately to allege motive-based constitutional torts.      

First, it is hard to read Iqbal as doing anything other than calling into question, if not overruling, Crawford-El v. Britton. In Crawford-El, the Court declined to adopt a heightened pleading standard for motive-based constitutional torts, concluding that such sweeping changes should be made through the rulemaking process. While the Iqbal Court did not even mention Crawford-El, the result of the latter opinion seems squarely in the former’s sights. The labels are different—in Crawford-El, the Court rejected a “heightened pleading standard,” whereas in Iqbal, the Court rested on the language of “plausibility.” But the effects of those two approaches are precisely the same. For while it is easy to allege motive in a pleading, it is difficult if not impossible to prove it before discovery.

Similarly, Iqbal undermines the Court’s ruling in Pullman-Standard v. Swint, which held that the existence of discriminatory intent in civil rights cases is fundamentally a question of fact. After Swint, appellate courts had few tools at hand to set aside findings of discriminatory intent; mere disagreement with the findings would not suffice, and to the extent the district court failed to consider evidence, remand was the only viable option. So at bottom, Swint is a boon for plaintiffs who uncover strong evidence of discriminatory intent post-discovery, because it ensures that favorable district court findings of fact cannot be set aside lightly.

Prior to discovery, however, only the luckiest (which may, of course, make them the least fortunate) plaintiffs can amass any meaningful evidence of discriminatory intent. By imposing a fact-intensive standard at the 12(b)(6) stage, Iqbal threatens to prevent plaintiffs from accessing discovery in the first place, and thus threatens to render Swint a nullity. While Swint’s holding that discriminatory purpose is ultimately a factual finding may still stand, the number of cases that will get to the fact-finding process is undoubtedly now much smaller. For the plaintiff who, post-discovery, would have smoking-gun or solidly circumstantial evidence of discriminatory purpose, Swint is cold comfort—and Iqbal a lock on the courthouse door.

This “discovery paradox” is perhaps the most sweeping consequence of Twombly and Iqbal. Together, those two cases drop the bar to getting a motive-based tort suit dismissed much lower than it has ever been. And there is good reason to think that such dismissals will be anything but rare. Just as with agreements in the antitrust context, information about a defendant’s mental state is notoriously hard to come by, even with discovery. But, post-Iqbal, plaintiffs will not be able to get access to discovery at all. Civil rights plaintiffs alleging motive-based torts thus face a classic Catch-22: they cannot state a claim because they do not have access to documents or witnesses they believe exist; and they cannot get access to those documents or witnesses without stating a claim.

This result is especially striking since motive-based torts are often considered to be the worst kind of constitutional tort, and the kind most in need of deterrence. And it is in those cases where Twombly and Iqbal will have most heft. In situations where the plaintiff is in command of all the relevant information to make out a claim—for example, a constitutional tort alleging excessive force—Iqbal has little effect. The plaintiff will allege where she was, what she was doing, what the officer did, and that will likely be enough. But in motive-based cases, the plaintiff will not have—indeed cannot have—all the necessary information to file suit, because some of that information rests between the defendant’s ears. In these cases, Iqbal will likely often result in dismissal, because there will be little more backing up the plaintiff’s allegations of improper motive than his or her own suspicion or belief.

This result is not altogether surprising in the civil rights context. The Court has often preferred to throw out meritorious claims to scrub dockets of frivolous ones, rather than permit more claims to proceed in the hopes that all meritorious ones will make their way to judgment. But the Court’s efforts here have been particularly clandestine; in addition to its subtle creation of a discovery Catch-22, the Court has overruled or undermined precedents like Crawford-El and Swint in function without so much as the “eulogy” that Justice Stevens penned for Conley.

IV

As law students learn early in their legal education, there is no such thing as a “pure civil procedure case.” Every civil procedure case arises out of some body of substantive law, be it antitrust, constitutional tort, or something else entirely. Every civil procedure case, then, brings with it a temptation to cabin the case as “belonging” to the relevant area of substantive law. For example, in the aftermath of Twombly, some scholars argued that the decision only applied to antitrust cases, or to complex, “big” suits. And the same temptation may exist with Iqbal: the temptation to view it as a Bivens case, a civil rights case, or a case involving high-level officials—and as limited to that context.

Read fairly, though, Iqbal, like Twombly, is fundamentally a Rule 8 decision, meaning that its effects reach beyond the factual confines of the case. As a result, all of Twombly and Iqbal’s innovations—from the embrace of heightened pleading, to the new two-step plausibility process, to the crucial distinction between issues of fact and law—are transsubstantive. And while this piece has argued that those innovations have great weight in the civil rights context, it would be naïve to argue that they are limited to that—or any—context. In just a few short months, Twombly became a darling of the defense bar, and one of the most frequently cited cases in U.S. courts. There is little reason to think Iqbal will be any different.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Rakesh Kilaru is a J.D. Candidate at Stanford Law School in the Class of 2010.

This Legal Workshop Editorial is based on the following Law Review Note: Rakesh Kilaru, Note, The New Rule 12(b)(6):  Twombly, Iqbal, and the Paradox of Pleading, 62 STAN L. REV. 905 (2010).

These changes in law have generated a significant shift in trust investment practices.  Equities represent a larger share of trust portfolios—just as modern portfolio theory would suggest they should.  Widespread belief in the investment community that equities always outperform fixed-income investments undoubtedly exacerbated the shift to equities.  This shift has not generated tangible benefits for trust beneficiaries.  The 2008–09 stock market decline has been dramatic.  But, even over a longer time horizon—ten years rather than one—equity investments have performed poorly; both the Dow Jones Industrial Average and the Standard & Poor’s 500 Index stand at lower levels in June 2009 than they did ten years earlier.  In other words, trust law’s implementation of modern portfolio theory has apparently left many trust beneficiaries worse off than if the law had retained more traditional principles of trust investing. That fact suggests that it is time for a re-assessment of the recent “revolution” in trust law doctrine.

The Trust Reform Movement

Trust law traditionally mandated conservative investment strategies for trustees, prohibiting all investment in “speculative” enterprises and focusing on “safe” investments in real estate mortgages, government securities, and high-grade corporate bonds.  A trustee who invested in equities generated no personal gain if the equities increased in value, but the trustee risked liability for imprudence if the trust portfolio declined in value.  Dissatisfaction with the traditional approach became intense during the 1960s and 1970s, when it became painfully apparent to many trust beneficiaries that conservative, “safe” investments bore a significant risk of their own—the risk that high inflation rates would erode the real value of trust principal.

At roughly the same time that inflation risk was eroding the real value of traditional trust investments, academic theory began to challenge the notion that prudent investing required avoidance of all risky investing.  Modern portfolio theory emphasized that diversifying among firms and industries could minimize firm-specific and industry-specific risk.  Moreover, the strongest form of the efficient capital markets hypothesis leads to the conclusion that no investment is a bad investment, because the risk associated with the investment has already been factored into the investment’s price.

Trust law reformers implemented these insights into trust law doctrine.  Although the Second Restatement⁴, which the American Law Institute promulgated in 1959, had recognized a duty to diversify, that duty plays a far more critical role in the Third Restatement and the Uniform Prudent Investor Act (UPIA).  Under prior law, the duty to diversify was superimposed on a “prudent person rule” that also required a trustee to evaluate the prudence of each individual investment in a diversified portfolio.  By contrast, the Third Restatement and the UPIA permitted trustees to avoid liability for even the riskiest investments—investments that would previously have been deemed imprudent—so long as the trustee adequately diversified those investments.  Moreover, because modern portfolio theory required more sophisticated investment decisions, the likelihood that an individual trustee, or even a corporate trustee, would be able to assemble an ideal portfolio without relying on persons with investment expertise diminished.  As a result, reformers freed trustees from the shackles of the common law rule that prohibited delegation of trustee obligations.

Taken together, these doctrinal changes were designed to afford trust beneficiaries the benefits associated with modern portfolio theory.  But, the changes operated primarily by relieving trustees from liability for actions inconsistent with modern portfolio theory.  They did not impose liability on trustees for failure to take affirmative steps to implement modern portfolio theory.  Of the three major “reforms,” only one imposed liability on trustees, and that one—the duty to diversify—had largely been established before promulgation of the UPIA and the Restatement (Third).  Significantly, neither the Restatement nor the UPIA developed liability rules that would constrain trustees from assuming too much market risk, despite modern portfolio theory’s clear recognition that diversification alone would do nothing to protect investors against market risk.

Re-Examining Modern Portfolio Theory as a Basis for Trust Investing

Market reverses over the past decade have left intact some of the basic premises of modern portfolio theory.  First, the premise that diversification of investments can reduce risk without compromising expected return has emerged largely unscathed.  The jury may still be out on whether a select number of savvy investors can reduce risk and increase return more effectively by careful study of the “fundamentals” associated with a small number of investments.  The empirical evidence, however, suggests that it will be a rare investor who can consistently “beat the market,” and it certainly appears unlikely that trust beneficiaries as a whole would be better off if trust law doctrine relieved trustees of the duty to diversify.

Second, market reverses have not undermined modern portfolio theory’s conclusion that an investment portfolio, including a trust portfolio, can optimally deal with non-diversifiable market risk by adjusting the portfolio’s percentage of high-risk, high-return investments.  Recent market reverses cast doubt on the proposition that, over the long term, equities will always outperform bonds and treasury bills.  But,  ignoring the historical returns of equities would be imprudent, just as it would be imprudent to ignore more recent events.  What recent events have emphasized is the standard caveat that past performance is no guarantee of future results.  In the face of uncertainty, hedging one’s bets remains a sensible strategy.

Other premises of portfolio theory seem less inevitable than they once did.  Consider first the premise that to compensate for the risk an investor takes the expected return on common stocks and other more volatile investments must be higher than the expected return on more stable investments .  That premise assumes that investors are risk averse rather than risk neutral or even risk preferring—a premise that appears not to be universally true.  Moreover, even if investors were risk averse, the investments that would command a risk premium would be those that present the greatest perceived risk to investors.  Over the last several decades, however, modern portfolio theory has conditioned many investors to believe that the risk associated with equity investments is low (because stocks always outperform fixed-income investments in the long run), and that fixed-income investments generate significant inflation risk.  If the investing public internalizes these messages, there is little reason to expect that equity investments must pay a “risk premium” to entice investors; instead, in periods of steady rise in stock prices, investors are more likely to underestimate the risks associated with market decline.

Second, insights from behavioral economics challenge the premise that every investment is, in appropriate proportion, a suitable trust investment.  That premise derives from the strong form of the efficient capital markets hypothesis, which holds that because the market price reflects all available information about a security’s risk and return, every investment is a suitable investment at its current price.  Behavioral economics suggests, however, that the pricing of individual securities reflects investor psychology as much as it reflects economic fundamentals.  A “herd” mentality causes many investors to bid up the price of securities (or to sell them off) without any economic foundation for the investment decisions.  The problem is especially serious with new issues, where the investor has no significant basis for determining expected return or covariance.  But, if an investor has no sound basis for determining expected return, the investor has no basis for assuming that adding the stock to a portfolio will preserve expected return or reduce risk—the objectives of diversification.

Putting Theory Into Practice:  Re-examining Doctrinal Implementation of New Learning About Investment Practice

Even if one were to accept all of the modern portfolio theory principles endorsed in the UPIA and the Restatement, the doctrinal structure those enactments established provides an inadequate framework for assuring that trustees apply those insights.  And, to the extent that modern portfolio theory underestimates particular investment risks, the doctrinal structure magnifies the risk to trust beneficiaries.

Unlike individual investors, trustees do not reap the benefits or suffer the losses that result from their investment decisions.  As a result, the trust relationship generates agency costs, raising questions about the role legal doctrine can and should play in addressing any mismatch between the interests of the beneficiaries and those of the agent (the trustee).

So long as preservation of trust principal is treated as the trust’s primary objective, aligning the trustee’s interests with those of the trust beneficiaries is not difficult.  Imposing liability on a trustee who makes investments that place trust principal at risk creates the right incentives; because the trustee receives no personal benefit from the higher returns the trust will generate from investments that do place trust principal at risk, but does bear the downside loss associated with such investments, the trustee who is at all sensitive to financial incentives will avoid risking trust principal—the hypothesized goal of the trust settlor.

Rejection of traditional theory complicated the agency-cost problem.  The “prudent” trustee could no longer look to any single talisman in making investment decisions; an investment strategy that balanced risk and return would best serve beneficiaries.  How, then, should the legal system encourage trustees to take the appropriate risks?  Traditional doctrine discouraged all investment in equities, particularly equities in companies not regarded as “blue chips.”  As a result, the drafters of the Third Restatement and the UPIA focused their efforts on eliminating any inference that a trustee could be held liable for imprudence merely because the trustee had invested part of a trust portfolio in high-risk, high-expected-return securities.

Once the drafters of the Restatement and the UPIA rejected categorical restrictions on types of investment, they were largely content to make marginal changes to the traditional standard-based prudent-person rule.  The standard-based approach provides little protection to beneficiaries against a trustee’s assumption of excess market risk.  The drafters, however, provided no black-letter substitute for the old regime’s protection against market risk.  Instead, they exhorted trustees to consider the risk tolerance of the trust in assessing how much market risk to take.  But neither the Restatement nor the UPIA indicates what standard of review to apply to the decisions trustees make in response to that exhortation.

The Restatement and the UPIA admit two possible interpretations.  First, courts might construe the Restatement and UPIA to confer broad discretion on trustees, with limited judicial review of a trustee’s investment judgment, so long as the trustee adequately diversifies firm-specific risk.  That interpretation imposes little discipline on trustees.  Second, courts might construe the Restatement and UPIA as imposing on courts a responsibility to provide more substantive oversight of the prudence of a trustee’s decisions.  That interpretation imposes on the trustee a liability risk that the trustee cannot reasonably avoid, which is likely to raise trustee fees and price some settlors out of the trust market.  Neither alternative is attractive.

How can trust law induce trustees to be more responsive to the investment objectives of the trust settlor and to the financial needs of the trust beneficiaries?  One answer is to develop a set of rule-like safe harbors that provide trustees with significantly more guidance than current law while simultaneously providing incentives for the settlor and the trustee to discuss and agree upon trust investment strategy at the time the settlor creates the trust.

Suppose, however, that the UPIA and the Restatement were amended to include, either in black letter or in a comment, something like the following language: “No trustee shall be liable for exposing the trust or its beneficiaries to excessive market risk if the trustee limits the trust’s investment in equities to 60% of the aggregate trust portfolio.” The addition of this language would not expose trustees to additional liability, but would instead create a “safe harbor” for them.

The safe harbor would provide a blueprint for trustees seeking to avoid liability.  A trustee who takes advantage of the safe harbor avoids both the expense of legal advice and the threat of liability of a de novo review regime, under which a court would substantively examine the prudence of the trustee’s investment decisions.  Because these costs would otherwise be passed on to the trust settlor and/or beneficiaries, the safe harbor approach would make trusts more affordable than would a regime that imposed more risk on the trustee.

At the same time, superimposing a safe-harbor provision on a regime that otherwise carefully scrutinizes investment decisions mitigates agency costs far better than a regime in which courts defer to trustee decisions.  If the primary concern in a regime regulated only by the market is that trustees will be inclined to pursue high expected return even when the risk associated with that return is not in the interest of trust beneficiaries, a safe-harbor regime addresses that concern by providing an incentive to limit equity investments to the amounts encompassed by the safe harbor.

Consider now the principal objections to such a safe-harbor regime (or one like it).   One potential objection is that rulemakers—legislators, with the aid of experts and lobbyists—do not have enough information about optimal investment strategy to craft sensible rules.  Were it not for the inadequacy of market discipline, the absence of reliable information about investment strategy might be a plausible argument for deference to the decisions of trustees.  This, however, is not an argument that a standard-based regime would be preferable to the safe-harbor approach.  In a standard-based regime, legal decision-makers will ultimately have to evaluate the prudence of particular investment strategies, but they will do so ex post, generating the potential for hindsight bias—a problem mitigated by a legal regime that provides trustees with ex ante safe harbors.

A second objection focuses on the inadequacy of one-size-fits-all safe harbors to account for the disparate needs and risk tolerances of trusts established for a multitude of different purposes.  A trustee, however, can protect itself against liability for departing from the safe harbor regime by ensuring that language in the trust instrument authorizes trust investment practices that differ from those that qualify for safe harbors. Alternatively, the trustee can protect itself by obtaining consent from the trust beneficiaries.

None of this is to suggest that a rule-based safe-harbor approach would have avoided all losses to beneficiaries during recent bear markets or to suggest that it will prevent future losses.  A safe harbor approach, however, does have greater potential for reducing agency costs than does the current version of the prudent-investor rule.

Acknowledgments:

Stewart E. Sterk is the Mack Professor of Law at Benjamin N. Cardozo Law School.

This Legal Workshop Editorial is based on Mr. Sterk’s Article: Stewart E. Sterk, Rethinking Trust Law Reform: How Prudent is Modern Prudent Investor Doctrine?, 95 CORNELL L. REV. 851 (2010), available at http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Sterk-final.pdf

First, we ought to look to the relevant values that collective action problems implicate. I argue that there is an economic and moral imperative to overcome collective action problems. Collective action problems stem from externalities—situations where market participants fail to incur the full cost or benefit of their activities. The canonical example is a factory where air currents export its pollution away to neighboring areas. Another example is vaccinations, where those who opt not to get vaccinated free ride off the benefit of the vaccinated person not getting sick. Externalities misalign people’s incentives, leading to either too much of a bad activity or not enough of a good activity. From an economic perspective, this market failure is an inefficient outcome. From a consequentialist perspective, this outcome is undesirable because it fails to maximize aggregate welfare.

The usual response to collective action problems is government intervention, which implicates the competing moral value of autonomy. Governments can force people to internalize their externalities through the state’s power of the sword and purse, realigning individuals’ incentives to produce the efficient market outcome. And higher level governments can force lower level governments to do the same. But the mere existence of different levels of government implicitly suggests that certain polities are better equipped to handle certain problems. And the notion that government intervention is not always the best response suggests that in some cases there may be better ways to solve collective action problems.

Therefore, second, we ought to consider the question of institutional choice. As Ronald Coase famously observed,¹ free market participants can sometimes overcome collective action problems on their own through bargaining. The underlying predicate to efficient Coasian bargaining, however, is low transaction costs. Some externalities such as air pollution are widespread, making it costly to identify the affected parties and thus leading to high transaction costs. As externalities grow in scale, individuals might organize and form neighborhood organizations, labor unions, or other private institutions to overcome the mounting costs of bilateral contracting. But when the number and complexity of resource users and affected parties reach a certain threshold, government regulation may become the most efficient, and possibly only, means of overcoming a collective action problem. Given the possibility of both public and private forms of collective action, we should look for a guiding principle to discern when each is best.

We should consider the European Union’s principle of subsidiarity as this guiding principle for institutional choice. Subsidiarity is a constitutional principle that establishes a presumption in favor of local regulation, either public or private.²That presumption is rebuttable, however, when collective action problems render local regulation ineffective. In such situations, subsidiarity not only admits but demands the intervention of a higher level polity. This principle ideally balances our relevant moral values: The presumption in favor of local regulation encourages efficiency and preserves autonomy, while the imperative for higher governmental intervention to address collective action problems maximizes social welfare.

Finally, we should apply subsidiarity to the global arena. In the face of global collective action problems, nation states are ill-equipped to optimize social welfare individually. Moreover, existing international institutions—­such as the United Nations, World Trade Organization, and International Monetary Fund—­are unable to achieve the necessary level of cooperation because they are underinclusive and fundamentally lack the coercive force of a true world government. This balkanized state of the world morally compels global governance to coordinate and enforce collective action and optimize social welfare. While demanding global governance, however, subsidiarity would also cabin that power. Its presumption in favor of local regulation would protect sovereignty to a reasonable extent by recognizing sovereignty as intrinsically valuable as a matter of autonomy and instrumentally valuable as a matter of efficiency. Thus subsidiarity can alleviate the concern that global governance would entail global despotism.

The world needs a world government. Existing political and private institutions cannot solve global collective action problems like climate change or systemic risk in the world financial system by themselves. And the argument that a world government would erode national sovereignty is no longer compelling enough to dismiss the idea out-of-hand. Subsidiarity as an organic, legitimizing principle for global governance would both compel and limit a world government. Its ability to account for diverse forms of public and private collective action make it an ideal guide to global institutional choice that optimizes social welfare while preserving national sovereignty, a balance that is economically efficient and morally desirable.

Acknowledgments:

Copyright © 2010 NYU Law Review.

Frederick J. Lee received his JD from New York University School of Law in 2010.

—Miami Mayor Manuel Diaz,
President, U.S. Conference of Mayors, July 2008¹

This editorial looks at the role that the smallest jurisdictions—cities, counties, and other local governments—can play in the United States’ efforts to reduce its greenhouse gas emissions. Contrary to conventional wisdom among environmental law scholars that local efforts are insignificant, and challenging claims that they could impede a national cap-and-trade program, this editorial argues that local efforts are collectively substantial and complementary to effective national climate change policy.

I. The Place of Local Climate Regulation in Environmental Law: Theory and Practice

As of November 2009, over one thousand mayors representing more than eighty-six million Americans had signed the U.S. Conference of Mayors Climate Protection Agreement. Signatories pledge to meet or beat the Kyoto Protocol’s emissions reduction targets in their communities, lobby the state and federal governments to set emissions reduction targets, and lobby Congress for a national cap-and-trade system. Meanwhile, 569 U.S. cities participate in the Cities for Climate Protection Campaign (CCP) under the auspices of the International Council for Local Environmental Initiatives (ICLEI). Members pledge to reduce greenhouse gas emissions from governmental and community activities. In addition, Chicago, Houston, Los Angeles, New York, and Philadelphia have joined the C40, a group of the largest world cities collaborating on climate change mitigation projects.

Dozens of these cities have inventoried emissions and adopted climate action plans. Critically, the largest U.S. cities are among the most engaged. Local policymakers have participated in summits, exhorted their citizens and the private sector to reduce emissions, and improved the energy efficiency of their own operations. Mayors have lobbied and sued the federal government and berated individual members of Congress for failing to adopt meaningful climate change policies. They have developed green fleet and green power purchasing policies, improved the energy efficiency in their operations, enacted sustainable building programs, improved recycling dramatically, and developed smart growth plans.

Despite their efforts, local governments’ attempts to reduce greenhouse gas emissions have not figured prominently in scholarly assessments of potential strategies to reduce U.S. emissions. To the extent scholars consider local actions, most have evaluated the potential impact under the rubric of “subnational” actions that conflates state and local efforts. While acknowledging the potential to indirectly influence adoption of federal climate change legislation, most dismiss the direct effect of local emissions reduction plans as trivial, inconsequential, or mere posturing.

Theoretical literature on environmental law supports this dismissive view. No state’s actions individually—and certainly no city’s individual actions—can reduce greenhouse gases to a degree sufficient to prevent adverse global warming. Climate change appears to present a classic tragedy of the commons: rational actors should be incentivized to overuse the atmosphere because the costs of reducing emissions are localized while the benefits are widespread, indeed, worldwide. Scholars generally presume that only two strategies can prevent over-exploitation of shared resources—privatization or coercion by a sovereign with a jurisdiction greater than the scale of the harmed resource. Thus, any effective response will require intervention from the highest level. In a similar vein, a prominent approach to dividing regulatory power in the environmental federalism literature asserts that the level of governance should “match” the geographic scale of the harm, also suggesting the irrelevance of local governments.

Meanwhile, some legal scholars and economists have argued that the most efficient way to reduce greenhouse gas emissions to targeted levels is to constrain greenhouse gas emissions from the top down through a comprehensive cap-and-trade system. Robert Stavins, for example, argues that an upstream (i.e., targeted at fossil fuel suppliers) and economy-wide regime “provides the greatest certainty that national emission targets will be achieved.”² Jonathan Wiener has long advocated a similar comprehensive cap-and-trade system.³ Referring to the “perils of incremental responses to climate change,”⁴ advocates of these models suspect that subnational efforts could create inefficiencies, entrench counterproductive polices, and cause emissions to “leak” (or shift) to unregulated areas.

Yet the failure to clearly disaggregate state and local efforts causes these and other scholars to overlook the unique nature of local actions. Unlike states, local governments have not been establishing greenhouse gas trading regimes, attempting to directly regulate the utility industry, or adopting vehicle emissions standards. Unlike states, there is less obvious overlap with federal law. Instead, local governments have focused predominantly on reducing fossil fuel demand by changing the built environment, reducing the generation of greenhouse gases from waste (an area unrelated to fossil fuel combustion), and capturing efficiencies in governmental operations. They are largely targeting the farthest downstream actors, consumers, and multiple small-scale activities.

Collectively, these efforts stand to be substantial because of the types of activities under local control and the size of the population within climate active jurisdictions. Moreover, local efforts may play an important role in easing transition to a future cap-and-trade regime by reducing the need for fossil fuels in buildings and transportation systems. And to the extent a future federal regime is ill-designed and does not provide expected emissions reductions, local efforts can help to compensate for these regulatory failures. Even presuming federal adoption of an effective cap-and-trade regime, local demand reduction programs will lower the price of the required emission allowances, helping to sustain political will and preventing the need to employ cost containment measures that could undermine the cap.

Federal climate change policy will be most successful if its architects recognize this potential local contribution and facilitate the reductions local governments have begun to implement. Dismissing local efforts as trivial may obscure effective means of reducing greenhouse gas emissions that rely on well-studied, mature, and available technologies that can be locally regulated within existing institutions. Examining both the potential and current local efforts provides a broader picture of the potential regulatory landscape, in terms of both regulatory targets and potential regulators. Indeed, multiple levels of government can play complementary roles under a model of bidirectional climate change policy-making and regulation.

II. Local Potential to Reduce Greenhouse Gas Emissions: Demographics and Relevant Powers

A. Viewing Local Efforts Collectively

While the total emissions within the ambit of any single local government are only a fraction of U.S. emissions, local efforts are best evaluated collectively for several reasons. First, local governments collaborate to reduce greenhouse gas emissions. They participate in networks, work as allies, share information and techniques, encourage other local governments to join their efforts, and generally appear to be part of a blossoming social movement. Second, the longstanding demographic trend toward urbanization suggest why cities’ policies are collectively substantial. By 2002, 62% of the U.S. population (174 million people) lived within the jurisdiction of a city government and the ten largest cities in the U.S. produce 10% of U.S. greenhouse gas emissions. The growing movement of cities stands to influence an increasingly large share of the population (and a concomitantly large share of emissions). Finally, ignoring local governments’ collective capacity to reduce emissions may obscure the value of proven and sometimes quick reductions that can be accomplished with existing technology and established local bureaucracies.

B. Relevant Areas of Local Power

The following provides a brief overview of the potential contribution of local efforts in several areas of traditional local power.

1. Buildings and energy efficiency

Building codes are generally understood to be a function of the police power, squarely within state and local jurisdiction. Although over the last few decades states have begun to displace local governments’ historical role as the sole purveyors of building codes, local governments retain significant power because some states have no codes, few states entirely preempt local codes, and most leave substantial gaps for local regulation. The power to adopt and enforce building codes is critical to emissions reductions because residential and commercial structures consume 68% of the electricity used in the United States and create 38% of the country’s carbon dioxide emissions.

Mature, available technology has existed for some time that can cut this demand dramatically. While buildings’ energy requirements can be reduced by one-third to one-half at a cost savings,, efficiency improvements are impeded by numerous barriers: lack of information, inertia, highly inflated cost estimates, inadequate institutional development, and split incentives that prevent landlords and developers from making improvements when the energy savings will be realized by others.

Local governments are currently targeting improved building energy efficiency as a means of reducing their emissions. Studies by the American Institute of Architects (AIA) and others show a dramatic upsurge in green building program adoption over the last decade among geographically, politically, and demographically diverse local governments. By 2008, well over seventy-one million Americans lived in a jurisdiction with some form of green building program adopted by their city or county government.

While initial efforts focused on improving energy efficiency in municipally owned or funded buildings, increasingly cities are creating incentives, mandates, or both for commercial as well as residential projects. Boston, Dallas, Houston, Los Angeles, Chicago, and numerous other large and small cities have revised building codes to mandate improved energy efficiency standards for commercial and residential building. Diverse locales have also created a broad range of financial, zoning, and publicity incentives for green building.

2. Zoning and land use power: reducing vehicle use

Local governments’ traditional power over land use makes them critical players in the effort to reduce transportation emissions.The transportation sector produces over a third of U.S. CO2 emissions, and motor vehicle usage accounts for roughly 80% of transportation emissions. While a number of state and federal policies aim to increase vehicle fuel-efficiency and promote low-carbon fuels, projected increases in the average daily driving of Americans, or their “vehicle miles traveled” (VMT), threaten to undermine these efforts. Reducing VMT will therefore be essential to shrinking transportation emissions.

Sprawling residential and commercial development combined with decades of infrastructure developed to facilitate car travel have been key drivers of the upward trajectory in VMT. Low-density land use patterns based on conventional zoning increase VMT by requiring most Americans to drive to work and amenities. Local governments can promote compact development patterns that reduce VMT through a combination of smart growth zoning measures. Because “two-thirds of the development on the ground in 2050 will be built between now and then,”⁵ smart growth policies that promote infill, provide a mix of uses, and create pedestrian and transit-oriented development provide a low-cost strategy for reducing greenhouse gas emissions.

The potential impact is substantial. A comprehensive study by Reid Ewing and colleagues finds that people drive 20-40% less when living in compact urban environments. Thus, simply directing 60% of new growth to compact forms will reduce GHG emissions by 85 MMT annually by 2030. Meanwhile, the Center for Clean Air Policy demonstrates that combining smart growth policies with expanded transportation choices and targeted transportation pricing could reduce emissions sufficiently to eliminate 145 MMTCO2 per annum, the equivalent of thirty-five large coal plants.

Since 2000, many cities have adopted or begun developing zoning and land use codes based on smart growth principles. As with green building policies, these efforts have included geographically, politically, and demographically diverse locales.

3. Waste and garbage

The traditional and well-accepted local power over waste management can be targeted to reduce emissions through increased recycling rates and methane-to-energy programs. Many local governments’ climate action plans include diversion of solid waste from landfills and incinerators to recycling facilities, employing a range of carrots and sticks to raise recycling rates. Cities have also tackled construction waste, which produces between 25-40% of the U.S. waste stream. Several cities report substantial increases in recycling rates, with important climate change implications: the EPA estimates that raising the average municipal solid waste recycling rate from 30.6% to 35% would reduce greenhouse gas emissions as much as removing twenty-seven million cars from the roadway each year.

Local governments also own and operate a large number of landfills and sewage treatment plants. Methane from these waste processes comprises approximately 2% of U.S. emissions of greenhouse gases. Methane-to-energy systems can both eliminate this source of greenhouse gases while creating substitutes for carbon-intensive fossil fuels. A number of local governments have initiated methane-to-energy systems (although much untapped potential still remains).

4. Proprietary functions of local governments

Potential reductions from proprietary activities alone may be substantial given the sheer number of local governments, the size of their operations, and the types of property that they own and operate. In 2002, the United States had nearly 40,000 general-purpose local governments (and nearly 88,000 total entities if school districts and special use districts are included). These local governments employ nearly 12 million full-time equivalent workers, as compared to the federal government’s 2.5 million and the collective 4.25 million of all fifty states. In addition to buildings, vehicles, lighting structures, and schools, local governments own utilities, airports, landfills, and ports, among many other facilities.

Local governments can and have targeted a long list of energy-consuming activities by changing procurement and operations policies in a broad range of areas including lighting, fleets, energy purchase, and even simple management efforts to reduce resource consumption. Survey data from 2007 shows that nearly 90% of a large majority of cities participating in the Mayors Agreement required or planned to require within the next year that new or rehabilitated city buildings meet improved energy efficiency standards.

The Survey also showed that a large majority of cities have upgraded to more energy efficient lighting in public buildings, streetlights, parks, and traffic signals. Because more than one-fifth of U.S. electricity powers lighting in some form or other, highly efficient lighting technology can reduce emissions significantly. The U.S. Department of Energy estimates that rapid adoption of LED lighting nationwide over the next twenty years could reduce electricity demand by a full 33%, eliminating the need for forty new power plants. Because they own and operate streetlights, traffic lights, and park and athletic field lighting while illuminating their own buildings, local governments are critical to this effort.

Most responding cities also already used or planned to soon use renewable energy to meet some portion of their operating needs. Cities that own the local utility can leverage their proprietary actions to reduce not only their own emissions but also those of their residents. For example, in the last few years, Cleveland, Austin, and Los Angeles have set aggressive targets for renewable power in their energy mix. And, in 2005, Seattle City Light, a publicly owned utility, achieved net-zero emissions.

Some cities report substantial overall emissions reductions in governmental operations. Salt Lake City, for example, has reduced its corporate energy consumption by 31% since 2001. By 2007, Seattle had reduced its greenhouse gas emissions by 60% compared to 1990 levels through changes in its proprietary activities.

C. Collective Efforts Revisited

Overall, the potential collective impact of local governments’ climate change activities in the areas described above is unlikely to be either trivial or counterproductive.

Local adoption of green building programs addresses barriers to cost-effective action and targets a substantial source of U.S. emissions. Similarly, smart growth plans can reduce demand for fossil fuels from transportation to complement other policies. Both build efficiencies into the environment that will ease transition to a future carbon-constrained economy. Recycling programs stand to further reduce emissions. Methane capture relies on mature technology with proven potential to generate known amounts of power while simultaneously eliminating methane emissions. In addition to compensating for regulatory failures at the federal level and easing transition to a carbon-constrained economy under any future cap-and-trade scheme, demand reduction from local policies will also help stabilize allowance prices.

III. Coordinating Levels of Government: Towards a Model of Bidirectional Climate Change Regulation

Focusing exclusively on the size of the resource being harmed (here, the global atmosphere)—as the commonly employed matching principle and the tragedy of the commons model direct us to do—obscures the potential collective contribution of local actions to a comprehensive regime. Instead of presuming that the scale of the harm determines the possibilities for a regulatory response, looking empirically at the various causes of greenhouse gas emissions and various means of targeting these sources provides a much broader vision of the regulatory landscape. In this sense, local governments have provided a service simply by raising the profile of a set of effective measures, which nonetheless could be overlooked because of their failure to fit into common frameworks for resolving environmental problems.

Many of the local governments’ potential reductions rely on established and available technologies. The relationship between potential policies and activities that cause emissions is often well studied, and a number of these emissions reductions can be captured in a short time frame. Existing bureaucracies such as planning, waste management, and building and safety departments can implement the programs. In addition, because some local programs provide fiscal benefits, they may face fewer political hurdles than federal and state efforts to reduce emissions. Local governments can additionally provide unique regulatory tools to alter emissions patterns. They can directly reduce their own emissions while structuring the local environment to influence residents to recycle, live in efficient buildings, and get around without their cars.

Local efforts are not only bidirectional because this smallest governmental level is regulating from the bottom up, but also because their focus on reducing emissions by targeting small-scale downstream actions trickles up by reducing demand. Attacking climate change through multiple levels of government and aiming to affect the stream of greenhouse gas creation and demand bidirectionally can provide important regulatory overlap because it is unlikely that the necessary reductions will be achieved perfectly on either end. Even assuming an effective national program, local efforts will provide a complement.

To the extent the state or federal governments recognize the importance of these efforts and indeed aim to more directly regulate in areas of traditional local powers, their efforts will be most effective if they recognize several things. First, even if higher levels of government set regulatory standards in areas of traditional local power, it is very likely that local governments will remain the locus of implementation because of their existing administrative apparatus and the scale of necessary operations for distributing building and development permits, collecting waste, and performing similar functions. Top-down mandates should recognize local experience and unique regulatory tools, and therefore give local agencies substantial flexibility in the development of implementation and enforcement plans. . . Second, any standards set by higher levels of government should be floors, not ceilings, to enable nimble local governments to advance regulatory paradigms by setting more stringent targets wherever it is practically and politically feasible. Third, empirical evaluation of local powers and efforts, rather than generalizations about scale, should guide any decision to usurp local regulatory efforts. Federal policy architects will do best to recognize the benefits and empirical reality of multilevel governance.

IV. Conclusion

Because of the myriad of sources and activities that interact to produce greenhouse gases, a multilevel and bidirectional approach likely will be essential to accomplish the depth of emissions cuts necessary. The broad range of economic, political, and social activities that must be altered to sufficiently reduce greenhouse gas production will require the complementary and overlapping skills, competencies, and unique regulatory approaches that each level of government can provide. Thus, to accomplish our climate change goals we will need “all hands on deck.”

Acknowledgments:

The article that serves as the basis for this editorial benefited tremendously from several individuals’ thoughts and feedback. The full article offers a proper thank you and also provides detailed footnotes for the above claims.

Copyright © 2010 Stanford Law Review.

Katherine A. Trisolini is an Associate Professor of Law at Loyola Law School, Los Angeles and a Fellow at the UCLA School of Public Affairs Program on Local Government Climate Action Policies. She received her J.D. from Stanford Law School, an M.A. in Political Science from the University of California at Berkeley, and her B.A. from Oberlin College.

This Legal Workshop Editorial is based on the following Law Review Article: Katherine A. Trisolini, All Hands on Deck: Local Governments and the Potential for Bidirectional Climate Change Regulation, 62 STAN. L. REV. 669 (2010).

I.  Hasen’s Case for the Democracy Canon

Hasen defends the Democracy Canon chiefly on the theory that it protects constitutional norms which the judiciary cannot or will not fully enforce in constitutional cases.³

Underenforcement arguments for canons of statutory interpretation conventionally rest on what Mitch Berman has helpfully labeled the “two output thesis” about the nature of constitutional adjudication.⁴  This thesis holds that in making constitutional law, judges first determine the meaning of the relevant constitutional “operative proposition,” and then translate that operative proposition into a workable “decision rule” for courts to follow in deciding cases.⁵  If the considerations that weigh in favor of an underenforcing decision rule with respect to a particular issue of constitutional law do not apply with equal force when judges are interpreting statutes, then the fact that the operative proposition is underenforced in constitutional cases may weigh in favor of a substantive canon of statutory interpretation that helps to give effect to the proposition.

Hasen’s “underenforcement” argument for the Democracy Canon does not follow this script.⁶  As best I can tell, it rests on the curious notion that when the U.S. Supreme Court errs in interpreting the Constitution, that error should be corrected or counterbalanced through constitutionally informed statutory interpretations which rest on a different understanding of the relevant operative proposition or its proper application (given a fully enforcing decision rule).  His is an argument premised on constitutional misinterpretation, not underenforcement. 

This is apparent from Hasen’s two examples of putative underenforcement.  He points, first, to the Supreme Court’s failure to treat the right to vote as “per se” a constitutionally protected right.⁷  Here, Hasen is clearly objecting to the Court’s understanding of operative propositions associated with the individual right to vote—specifically, that the Equal Protection Clause does not require any offices to be made elective—rather than to decision rules that the Court has prescribed for adjudicating alleged deprivations of the right. 

Hasen next turns his attention to Bush v. Gore’s maxim that, “[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over another’s.”⁸  Until recently, a strong basis existed for believing this proposition to be underenforced.  Governing doctrine held that “severe” burdens on the right to vote resulting from the mechanics of the electoral process were subject to strict scrutiny, whereas “lesser” burdens received much more deferential review⁹—a standard that some lower courts deemed equivalent to the “anything passes” rational basis test applied to ordinary social and economic legislation.¹⁰  The rational basis test is a canonically underenforcing judicial decision rule.

 In the 2008 case of Crawford v. Marion County Election Board,¹¹ however, the Supreme Court took a major step toward full enforcement of the individual’s right to vote on equal terms with other citizens.  Though Crawford yielded no majority opinion, six Justices agreed that assertedly unequal burdens on voter participation are subject to a kind of open-ended reasonableness review with bite.¹²  There is no rational-basis free pass for non-severe burdens.  After Crawford, judges hearing Equal Protection challenges to election procedures must satisfy themselves that the procedure at issue does not unreasonably value one person’s vote over another’s, all things considered.  Like any other observer, Hasen will disagree with many judicial applications of this standard.  But, a de jure gap between operative proposition and decision rule no longer exists.

The notion that canons of statutory interpretation may be used to correct the Supreme Court’s constitutional errors seems to me neither useful nor legitimate.  For purposes of cases before the Supreme Court, the argument is incongruous: why would the Justices accept, for purposes of a statutory case, a reading of the Constitution that they have just rejected in a constitutional case?  And for cases in the lower federal and state courts, the argument seems insubordinate, as these courts have a duty to abide by the Supreme Court’s reading of the Constitution. 

II.  A Pragmatic Case for the Democracy Canon?

Setting aside the niceties of legal theory, one might think that Hasen’s Democracy Canon is attractive because of its propensity for generating good results.  But there are large difficulties with a results-based argument for the Canon. 

For starters, the values that the Canon privileges often conflict with other democratic values, making it very hard to say whether the Democracy Canon in fact supports the “good result.”  Political scientists have shown, for example, that reforms which make voting easier—a Democracy Canon value—sometimes exacerbate the demographic skew of the voting public, i.e., the demographic unrepresentativeness of the population that does vote, relative to the population that is eligible to vote.¹³ Should this be considered a good result?  Likewise, enabling more candidates to get on the ballot—a Democracy Canon value—may usefully expose voters to new ideas, but it also increases the cognitive burden on voters and the likelihood that the Condorcet winner (a candidate who would prevail in a head-to-head contest with every other candidate who is seeking the office), if any, will end up losing the election.  In post-election disputes, legal interpretations that classify more ballots as eligible to be counted—a Democracy Canon value—may be satisfying to voters who feared that their ballots would otherwise go uncounted, but the same interpretations may well prolong the dispute, gumming up political transitions or leaving citizens temporarily without representation.  Good result? 

A further reason for pragmatists to worry about the Democracy Canon is that it arms one side (the Democrats) in the ongoing conflict between Democrats and Republicans about whether “barriers to voter participation” or “risks of voter fraud” represent the greater threat to American democracy.¹⁴ 

The Democracy Canon, in Hasen’s formulation, enables voters “not morally at fault” to participate and have their ballot counted.¹⁵  Yet, what qualifies a voter as innocent depends on one’s normative judgment about what the state may reasonably demand from citizens as a prerequisite to voting.  This question divides Democrats and Republicans in the current “access vs. integrity” debate, echoing earlier divides between liberals and conservatives in clashes over literacy, tax-paying, and property qualifications for voting.  Given this intellectual schism and its apparent correspondence with narrow partisan interests, it would be quite surprising if Democratic and Republican judges were able to converge on shared understandings about when the Canon is properly triggered (that is, whether a voter is “innocent”) and how heavily the Canon weighs in the run of cases. 

More likely, recognition of the Democracy Canon would increase both the partisan gap in federal judicial decision-making and the media drumbeat concerning judicial partisanship in election cases.  The judiciary’s capacity for issuing authoritative decisions in disputed-election cases, itself a function of public confidence in the courts’ neutrality, could suffer accordingly. 

A pragmatist should also worry about the dynamic consequences of Hasen’s Democracy Canon for enacting electoral legislation.  In the wake of Bush v. Gore, Congress adopted the Help America Vote Act (HAVA)¹⁶ on a bipartisan basis.  HAVA strikes a delicate balance between Democrats’ desire to make voting systems more accessible and Republicans’ stated wish to make the mechanics of voting less pervious to fraud.  Since Congress adopted HAVA, voting-rights advocates have brought repeated legal challenges seeking, in effect, to expand the “Democratic” parts of the law and curtail its “Republican” components.  For the most part, the federal courts have respected the gist of the legislative deal.  But, if the federal courts were to adopt the Democracy Canon, left-leaning judges would have a respectable doctrinal basis for unraveling HAVA’s bipartisan compromise. 

Imagine how Republican Senators and Representatives would behave if they knew that liberal judges could trot out a special “pro voter” canon of interpretation to construe the inevitable imperfections of legislative drafting in a manner that undermines the legislative deal.  They would fight tooth and nail against bills that even modestly liberalize the terms of voter participation, insofar as such liberalization might be thought to benefit traditional Democratic constituencies.

The harder it is to enact electoral legislation under conditions of divided government, the more justification there will be—due to the accumulation of unaddressed issues—for enacting reforms when the planets align and one party finds itself in control of the House, the Senate, and the Presidency.  Controversial electoral reforms that a unified government enacts are likely to be seen by supporters of the out-of-power party as measures designed to secure partisan advantage, even if the reforms have plausible neutral rationales.  If the minority party then loses the next election or elections, its supporters’ consent to the legitimacy of the winners’ rule will be that much harder to secure.  Over time, a two-party system in which the rules of electoral competition are regularly updated in a generally bipartisan fashion seems likely to be more stable than a system in which the rules remain static for long periods and are updated in partisan bursts whenever one party controls the legislative and executive branches.

In summary, there is little for pragmatists to find attractive in Hasen’s Democracy Canon.

III.  A Better Alternative: The Effective Accountability Canon

Though the federal courts nowadays fully enforce citizens’ equal protection right to vote on equal terms with others and candidates’ and political parties’ First Amendment rights of ballot access, other constitutional norms concerning the democratic process are unquestionably underenforced.  The most important of these is the effective accountability norm, which, I contend, is embodied in the Guarantee Clause of Article IV, Section 2 of Article I,¹⁷ and the Seventeenth Amendment.¹⁸  Article I, for example, specifies that members of the House of Representatives are to be “chosen . . . by the People” of the respective states, and that the electors who participate in this choice are to have the requisite qualifications to vote for the most numerous branch of their state’s legislature.¹⁹  This implies, first, that the qualifications for voting in elections for that state legislative body must be liberal enough to give the persons qualified to vote a fair claim to speak on behalf of the entire citizenry. 

It further implies—if “choice” is not to be an empty formality—that the electoral process must be structured so as to facilitate a meaningful expression of the qualified electors’ will.  Of particular concern in this regard is how election law affects (1) the degree to which the persons who turn out to vote are representative of the normative electorate (qualified voters) as a whole; (2) the aggregate competence of the voting public in apportioning blame retrospectively and identifying those candidates who are most likely to act as the voters—if fully informed—would wish for them to act; and (3) the ease of coordination among like-minded voters.  These are the constituent parts of democratic accountability.  A democratic constitution ought to establish an effective accountability norm, something to this effect: “An election law, or suite of election laws, is unconstitutional if there are practicable alternatives that would result in substantially more effective accountability to the normative electorate at reasonable cost.” 

Today, courts do not enforce this norm as a matter of positive constitutional doctrine.  The Guarantee Clause²⁰ has long been treated as nonjusticiable, and, though the Supreme Court once flirted with the idea of enforcing an effective accountability norm under the guise of voters’ equal protection rights and candidates and political parties’ associational rights, the Court has backed away from this.²¹ 

The Court may well have feared that direct enforcement of the effective accountability norm would make virtually every aspect of the electoral process a potential target of constitutional attack by plaintiffs arguing that some other (radically new?) mechanism would result in a better informed electorate or more representative voter participation.  In resolving these constitutional challenges, the courts would have to wade through disputes among political scientists about the actual or likely effects of alternative institutional arrangements.  The Court has repeatedly signaled that it is uncomfortable with social scientific approaches to constitutional political rights²²—perhaps because it fears making embarrassing mistakes, or because it does not want constitutional requirements to vacillate with the latest research findings and counter-findings.   

A canon-based approach to the effective accountability norm would not expose the courts to these perils, or at least not to the same degree.  Judges would not have to worry about finding limiting principles to defeat constitutional arguments for radical reform, because implementation of the effective accountability norm would occur only through the interpretive tweaking of legislative enactments.  The courts would be building on the legislature’s handiwork rather than displacing it. 

The “empiricism problem” would also be less acute.  Judicial mistakes would be subject to correction by the legislature or an implementing agency.  Additionally, the norm of super-strong statutory stare decisis would excuse the courts from the potentially embarrassing task of revisiting past decisions that allegedly were premised on misreadings of the social scientific literature.

Finally, liberal and conservative judges would probably find it easier to converge on a shared approach to the proposed Effective Accountability Canon than to Hasen’s Democracy Canon.  Judicial recourse to the effective accountability norm would neither require nor encourage courts to pass judgment on the “moral fault” of affected voters.  Also, the Effective Accountability Canon would have little purchase in post-election ballot-counting disputes.  Hasen notes that the large plurality of Democracy Canon applications involve ballot-counting disputes.²³  From an accountability perspective, who wins a razor-thin election is unimportant; the leading vote-getters have proven themselves more or less equally satisfactory to the electorate.  Because post-election litigation tends to be high visibility, with clear partisan stakes, anyone worried about the courts’ reputation for political neutrality should treat the fact that the Effective Accountability Canon would not license strained statutory readings in this context as a benefit.    

I do not doubt that liberal judges would be inclined to emphasize the “representative participation” side of the effective accountability coin, while their conservative counterparts would be comparatively alert to voter-competence issues.  That the canon legitimizes both concerns, however, provides some basis for hoping that an equilibrium would emerge in which liberal and conservative judges honor one another’s concerns in cases that implicate the canon.

Conclusion

Professor Hasen dubs the Democracy Canon the “Rodney Dangerfield” of canons, complaining that it gets no respect.²⁴  His terrific Article shows that the Canon deserves attention as well as respect.  Though he does not succeed in making the normative case for adoption of the Canon in jurisdictions that do not presently recognize it (most prominently, the federal courts), Hasen has performed a great service in bringing the Canon to the attention of legal academics and election-law practitioners.  My article and this editorial advance the ball a little further by explaining the limitations of Hasen’s normative defense of the Canon and by outlining some alternative models for a democracy canon.  My preferred alternative, the Effective Accountability Canon, would partially enforce Article IV’s guarantee of republican government, which is at once the Constitution’s most significant democratic commitment and one which the courts have long treated as nonjusticiable in constitutional cases.       

Acknowledgments:

Copyright © 2010 Cornell Law Review.

Christopher S. Elmendorf is a Professor of Law at U.C. Davis School of Law.