Blogging from the Supreme Court: Oral Argument Comedy

I was able to attend oral arguments in Barber v. Thomas, 09-5201 (2010) yesterday. The question presented in that case was whether the "'term of imprisonment' in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. 3624(b), unambiguously require[s] the computation of good time credits on the basis of the sentence imposed?"

But an exchange between a few of the Justices and the Solicitor General's counsel during oral arguments provided more entertainment than the Court's endeavors to solve the mathematical puzzles in the case. Law.com provided a detailed account of the incident:

The issue before the Court in Barber v. Thomas is the interpretation of a "term of imprisonment" under the federal good-time credit statute. The petitioning federal inmates argue that they should be eligible for the statutory 54 days of good-time credit for each year of their entire sentence as originally imposed. The position of the Bureau of Prisons is that the calculation of good-time credit is based only on time actually served by the prisoner. . . .

Assistant to the Solicitor General Jeffrey B. Wall, arguing on behalf of the government, told the justices that the petitioners' method of calculating a year of imprisonment, subtracting the 54 days of credit, wrongly creates a 311-day cycle for good-time credit eligibility. "But what the statute says is you make the determination at the end of the year. And we don't read "year" to be a 311-day period. We read it to be a 365-day period," Wall said.

Ok, got that? Enter Justices Breyer and Stevens to comb through the arguments and the math:

Justice Stephen Breyer expressed concern about awarding good-time credit for what he at one point in the argument termed "phantom time" -- time sentenced but not actually served. A prisoner sentenced to 10 years, Breyer said, "is not actually in prison for 10 years. He is going to be released sometime late in year 8. And so why should we add 54 days? I mean maybe it would be a nice thing because sentences are awfully long, but -- but why would anybody want to add 54 days in respect to a year that's never going to be served?"

Breyer offered a somewhat lengthy and arithmetic-heavy reading of how the statute might apply to a prison term of 10 years: "At the end of the first year you write the number 54 on a piece of paper if [the prisoner] has done well. Suppose he comes in on Jan. 1, OK? So Jan. 2, after the first year, you write ... the number 54. And you do that each year. And by the time you get to the year eight, what you have done is you have got 432 days." . . . Breyer continued: "So then you subtract the 430 days from 10 years, and what you get is you are 67 days short of nine years. So now you look at the last sentence, and what you do is you take 67 days, subtract that from 365, and you've got 298, and you simply prorate for those 298. And you subtract that, too, so he gets another 10 days or so, or 15 days credit, and that's it.

Justice John Paul Stevens seemed concerned about the policy implications of the government's position, telling Wall: "You say there are 195,000 sentences affected by this rule. I don't know which way that cuts. If there are 195,000 people spending ... significantly more time in jail than they should, that's kind of troublesome." . . . "Justice Stevens, I think what I would say is the bureau has been doing it the same way since 1987. Congress has amended this statute five times in the last 20 years. It has never moved to alter the bureau's methods," Wall answered. . . .

"Probably they didn't understand it because it's an awfully hard statute to understand," Stevens offered.

"Justice Stevens, with all respect, Justice Breyer got it in the first five minutes," said Wall, to laughter from the audience in the courtroom.

"Well, he's a lot smarter than I am," Stevens quipped.

Justice Antonin Scalia jumped in with a mock-incredulous tone that ratcheted up the laughter: "Even Justice Breyer has got it! Whoa!"

Yes, even Justice Breyer got it.

---

On a related note, a few of my classmates and I got the opportunity to attend a small Q&A session with Justice Stevens after oral arguments. He talked with us about a few recent cases, his views on cameras in the Supreme Court and baseball. I'll be blogging more about this later.

The Next Major Product Liability Suit?

Drug product liability is an area of law that resembles a game of hot potato to decide who is at fault. The FDA, perhaps? Well of course not. You can't sue the FDA. That leaves you with the manufacturer. Hopefully, AstraZeneca isn't opening the door to its next major lawsuit.

10 Reasons to Fear the Health-Care Bill

The problems according to Richard Epstein. The Daily Beast

Pearson-Iqbal: A discussion about discretion

In my last post, I explored a few of the problems with the interaction between Pearson and Iqbal: that a civil rights plaintiff is caught between saying too much (and getting dismissed because of Pearson) or not saying enough (and getting dismissed because of Iqbal); that, as I explained with the example from DiStiso v. Wolcott, this interaction could not only deter plaintiffs from arguing constitutional theories but also from enforcing constitutional rights; and that changing the Rule 8(a)(2) standard has also implicitly modified the substantive inquiry at "Saucier step one", even though the Court did not frame it that way.

I also noted that the increased discretion that courts are given (to decide which step of the QI analysis to undertake first, and to use "common sense") makes it hard to predict how different courts will deal with identical facts. In this post, I want to expand on the problematic way these two cases handle courts' discretion.

Pearson, as discussed earlier, gives courts the discretion to decide which step of the QI analysis to address first. (By the way, in response to Craig's earlier comment -- in FN 131 of the paper, I cite several cases where courts skipped to step two of the QI analysis and note that as of that writing (six months ago), courts had done so "dozens" of times; I suspect the number is higher now.) But while the case law now gives courts wider discretion to dismiss civil rights claims, they have no corresponding discretion to preserve such claims. In the article, I give an example where , at summary judgment, it is a close question whether a reasonable jury might conclude that there was a violation of a (clearly established) right. If a district court dismisses the claim, it will likely be protected by Pearson. But if it decides to let the case go to trial, it will probably have committed reversible error: although trial courts have various inherent powers, qualified immunity is an immunity from suit, not just liability, so the court will probably be held to have exceeded its discretion.

Moreover, litigants will not know which of the two steps a court will address first. Therefore, they will probably argue both. And, in responding to the arguments raised, a court may well address both arguments, even after disposing of the case on one prong or another. (The Tenth Circuit recently did this in a case I cite.) This in turn results in unnecessary dicta, which is the problem with Saucier sequencing that Pearson ostensibly fixes.

Iqbal also disrupts long-standing law regarding lower courts' discretion. As the Second Circuit explained in its Iqbal decision (Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007)), a trial court, “not only may, but ‘must exercise its discretion in a way that protects the substance of the qualified immunity defense.’” Id. at 149. This discussion quoted Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998). Crawford-El explained that district courts have a wide array of tools at their disposal to carefully manage litigation and ensure that defendants -- and particularly government officials -- are not exposed to vexatious discovery and other litigation demands.

As the Supreme Court explained in Crawford-El, a trial court has the power, inter alia, to order a reply to the defendant’s answer per Rule 7 or require a more definite statement of the
plaintiff’s claims per Rule 12. “Thus, the [district] court may insist that the plaintiff put forward specific, nonconclusory factual allegations that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment.” Id. at 598. In Iqbal, the Court instructed that conclusory allegations must be disregarded altogether. Yet in Crawford-El, the Court specifically explained how trial judges were to use their discretion to more fully elaborate on such allegations in the course of testing a plaintiff's complaint. Iqbal makes no mention of Crawford-El, and therefore litigants must assume it is still good law, but there is no reasonable way to square the two decisions.

And this sort of carefully managed discovery process is nothing new. For years, courts have permitted plaintiffs to take limited jurisdictional discovery when there was a question as to whether personal jurisdiction existed in a particular forum. And consider this: Rule 9(b) imposes a heightened pleading requirement in certain cases. But the circuits were uniformly agreed, pre-Iqbal, that Rule 9(b)’s requirements were relaxed when the facts material to a fraud claim were in the defendant’s exclusive possession and could be obtained only through discovery. But it cannot now be the case that Rule 8's general allegations have to meet a higher standard than those that, per Rule 9, must be pled with particularity. Again, Iqbal makes no mention of this problem.

So Iqbal effectively rachets back district courts’ discretion, instructing them to dismiss a complaint outright when a complaint’s well-pleaded factual allegations are deemed implausible. But it also expands district courts’ discretion in another, important direction: it instructs courts to make this decision based on their “judicial experience and common sense." The problem, of course, is that this kind of a determination is so open-ended as to be almost unreviewable.

So this is the second major problem with Pearson-Iqbal: all of the discretion cuts one way. Pearson’s rule that sequencing is now voluntary increases a court’s discretion to dismiss civil
rights claims; Iqbal’s conclusion that discovery management is an inadequate tool decreases a court’s ability to preserve civil rights claims; Iqbal’s directive to rely on common sense increases a court’s ability to dismiss such claims.

Of course, it is possible to devise a rule that would have balanced the interests of civil rights plaintiffs and defendants. For example, the Supreme Court could have (and I submit should have) announced the following rule, consistent with Twombly and pre-Twombly authority: (1) civil rights claims require no heightened pleading standard; (2) if the allegations regarding a particular defendant’s actions are “conclusory,” a court is to determine whether the claims against him are consistent with liability and, if so, whether the facts necessary to support such a claim are likely to be in the defendant’s possession. If so, the court could order limited discovery or use other procedural tools — as described in Crawford-El — to permit the plaintiff an opportunity to determine if he can make out a claim against the defendant. If so, the case would proceed in the normal course; if not, the case would be dismissed. Again, such a formulation preserves the defendant’s interest in avoiding discovery intended only to harass, while permitting the district court to operate with a scalpel rather than a mallet (and a rather one-dimensional mallet at that, since a court’s only option in such a context is dismissal).

We're getting to the end. Because this series has gone on for a while, I'll take a break in my next post and respond to some reader comments. I'll wrap up with a discussion of procedural judicial activism and why we should worry about it.

Country Roads

I love my home state of West Virginia. I love the beautiful hills, the wonderful people and, of course, the Sweet 16-bound Moutaineers. But I cannot ignore a troubling aspect that continues to plague the state's reputation: its economy and general business environment. A recent study ranked the Mountain State dead last in lawsuit environment:

A study conducted by the U.S. Chamber Institute for Legal Reform rates West Virginia as having the nation’s worst lawsuit climate in the United States. . . . The Lawsuit Climate 2010: Ranking the States survey measures how a state’s legal climate affects businesses. Survey respondents were made up of general counsels and senior attorneys or executives in companies with annual revenues of at least $100 million. According to the report, West Virginia was rated last in each of ten elements used to determine a state’s overall position.

So apart from being a lawyer's paradise, businesses tend to eschew locating within the state. And the large companies that have set up shop seem to experience stagnate growth relative to their peers. Various reasons have been advanced to explain why this is the case, including a lack of competitive pay for executives, a relatively antiquated corporate governance structure and now, as noted, the need for tort reform. In any case, it is tough to know how to enact sweeping and meaningful change.

Weekend in DC

For a bit of news that has nothing to do with Pearson, Iqbal, or (at least directly) the law--

I'm in Washington, DC this weekend at the annual "Legislative Weekend", part of the YMCA DC Youth & Government Program. The program brings together high schoolers from across the District to discuss and debate issues that are important to them, to play the role of Youth Mayor, Council Members, etc., and "pass" bills into law. Some of the bills introduced during the high schoolers' program have gone on to become law in Washington, DC. The youth leaders from the program contribute to community and civic life as well; most recently, students from the program testified before the DC City Council.

I helped start this program eight years ago and it's grown well beyond its humble origins. I'm proud to be part of such an impressive program and encourage you to read more about it and support it if you are so inclined.

Lady Gaga and Boys

I vaguely recall Lady GaGa once intimating that any new boyfriends who come into her life would be in for a bumpy ride. Well, apparently one fell off and is suing GaGa for $35 Million:

Lady GaGa's former songwriter, music producer and also ex-boyfriend . . . Rob Fusari says GaGa squeezed him out of her career after he co-wrote some of her songs, came up with her stage name and helped her get a record deal. Fusari acknowledges getting checks for more than $600,000 from . . . GaGa, but says that isn't his full share.

In any case, I take it that this amount of money is a drop in the bucket for her. Check this out for more.

Federalism Showdown

Idaho governor signs law requiring Idaho AG to sue the federal government if residents are forced to buy health insurance. AP

The Blackbook's Second Annual Top Law Prof. Competition

It's that time of the year again! The Blackbook Legal Blog is proud to announce that we're hosting our second annual top law professor competition. Last year's competition was a major success with hundreds of different voters from different schools casting their ballot. In the end, Professor Peter Smith of The George Washington University Law School emerged victorious. We hope this year's competition will be as spirited.

As a reminder, here's how it works: e-mail us or leave us a comment to this posting nominating a professor. Be sure to specify what school the professor teaches at.* In a week or two, we'll put everything together and create a poll. We'll pull the top five professors from that poll into another poll, and will determine--from there--who our readers think should be crowned "Blackbook's Top Law Prof."

*Note that winners from the past year are ineligible to participate. Thus, nominations for Professor Smith will not be accepted in this year's competition.

Pearson-Iqbal: What's the big deal?

In my previous posts (Part I and Part II), I explained why the Supreme Court's recent decisions in Pearson and Iqbal are problematic on their own terms. These are some fairly well-known criticisms. In this part, I want to explain why the interaction between these two cases is problematic -- a point that has not gotten any treatment, to my knowledge, in the academic literature (in print or online).

The biggest problem is that the Pearson-Iqbal interaction threatens to catch litigants -- civil rights plaintiffs in particular -- on the horns of a dilemma. In my article, I illustrate this problem with a case that was recently decided by the District of Connecticut. (The case then went to the Second Circuit, but its disposition there was on grounds unrelated to the issues I discuss here.)

In DiStiso v. Wolcott, 539 F. Supp. 2d 562 (D. Conn. 2008), Robin DiStiso sued various school officials on behalf of Nicholas, her minor son. Robin alleged inter alia that the other students at school harassed, taunted, and assaulted Nicholas because of his race. She further alleged that she complained to Nicholas’s first-grade teacher, Tammy Couture, and the principal, John Cook, and that they did nothing to respond to the complaints. Robin and her husband testified to this effect at their depositions. For their part, Couture and Cook stated in affidavits that they never observed such conduct and never received such complaints from the parents.

At the time of Robin's suit, it was clear that, per Second Circuit case law, a claim like this one -- alleging deliberate indifference to racial harassment -- had to make out at least three elements: (1) harassment by other students; (2) awareness, on the part of school officials, of such harassment; and (3) a “clearly unreasonable" response by those officials. However, it was not clear whether the parents also had to allege (and later demonstrate) a racially hostile educational environment. Years before, the Supreme Court had held that such a showing was necessary in the context of student-on-student sexual harassment. But neither the Supreme Court nor the Second Circuit had so held in the context of racial harassment.

Now we see the Pearson-Iqbal interaction problem. Robin could plead the violation a specific constitutional right: the right to be free from student-on-student racial harassment, premised on a theory of deliberate indifference. But this claim could easily get dismissed: on the basis of Pearson, the District Court could, correctly, hold that (because no court has held whether a hostile educational environment is a necessary element of the claim) the right in question is not "clearly established."

To avoid this problem, Robin could plead the violation of a general constitutional right: the right to be free from racial discrimination. But in this case, Robin and Nicholas would almost certainly lose because of Iqbal. Any allegations regarding intentional, active discrimination by Cook
or Couture would be conclusory, because the real nub of the claim against them (on this count) was not that they did discriminatory things to Nicholas; it was that they willfully ignored others’ discriminatory treatment. In such a context, any allegation that Cook or Couture actively engaged in discriminatory conduct would be seen as “conclusory” as the allegations discarded by the Supreme Court in Iqbal.

And so, in a Pearson-Iqbal world, Robin and Nicholas would be stuck. They could plead the violation of a specific constitutional right -- indeed, the one that is most directly applicable to the fact pattern -- and risk getting tossed by Pearson. Or they could plead the violation of a more general constitutional right, and risk getting thrown out by Iqbal.

There are several important implications:

1) Pearson-Iqbal puts civil rights litigants in a position where their claims, even if they are meritorious, are at risk of dismissal whether they say "too much" (Pearson) or "too little" (Iqbal).

2) The interaction not only threatens the development of novel constitutional theories but also the enforcement of existing constitutional rights. The Second Circuit has held for at least ten years (since Gant v. Wallingford) that schools officials might be liable in this kind of context. But the fact that the applicability of one element has not been squarely decided puts the plaintiffs at risk of immediate dismissal per Pearson.

3) There is no guarantee that the problems I outlined would actually come about (if the DiStisos' case were litigated in post-Pearson/Iqbal world). But this exacerbates the problem. The increased discretion courts have (to use their "common sense" to decide if there was discrimination; to decide how to approach the qualified immunity analysis) makes it that much harder to predict how different courts will rule given identical facts. Such unpredictability undermines the rule of law.

4) When deciding a motion to dismiss on the grounds of qualified immunity, a court had to first decide if the allegations, assumed to be true, make out the violation of a constitutional right (Saucier step one). But as several civil procedure professors pointed out in the Iqbal amicus brief, "what is now described as the first step is, in fact, only a reflection of the plaintiff ’s standard obligation to show her entitlement to relief under Rule 8(a)(2). As a matter of trans-substantive procedural law, a failure to make such a showing in any case would trigger a Rule 12(b)(6) motion to dismiss for failure to state a claim. No different rule applies to constitutional claims . . . ." But by raising the bar for a "regular" Rule 12(b)(6) motion, Iqbal has, perhaps inadvertently, altered the standard for Saucier step one. Now, when faced with a 12(b)(6) motion based on qualified immunity, a court will have to import Iqbal's plausibility standard -- or, if it does not, it will have to explain why plausibility applies in some contexts but not others.

This post has run a bit long, so I'll cut short here. In my next post, I'll elaborate on a point I mentioned in passing above -- the role of lower courts' discretion. Then I'll respond to some of the comments I've received thus far.

Pearson-Iqbal, Part II

In this post I'll continue with an overview of my forthcoming article, Pearson, Iqbal, and Procedural Judicial Activism. In Part I, I explained why the Supreme Court's decision in Pearson v. Callahan was problematic: by permitting courts to skip to the second step of the qualified immunity analysis, Pearson will, over time, reduce the universe of claims available to civil rights plaintiffs.

The story is more straightforward with Ashcroft v. Iqbal. Although that case was, at least on one level, a qualified immunity case, the ultimate disposition turned on pleading standards. Iqbal, a Pakistani national living in the U.S., was picked up by federal authorities shortly after September 11 on certain fraud charges. He alleged that, while in prison, he was abused by low-level guards, at the direction of, and with the knowledge of, high-level government officials. The question the Supreme Court addressed was "whether conclusory allegations that high-level government officials had knowledge of alleged wrongdoing by subordinate officials are sufficient to survive a motion to dismiss in an action brought under Bivens."

The court held that a plaintiff's complaint was to be tested in accordance with a two-step process. First, the court was to disregard all "conclusory" allegations. Second, the court was to determine whether the non-conclusory allegations, assumed to be true, gave rise to a "plausible" entitlement to relief.

This two-step process is fraught with problems. The relevant passage in Iqbal reads, “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. [Twombly, 550 U.S.] at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we 'are not bound to accept as true a legal conclusion couched as a factual allegation' (internal quotation marks omitted))."

But this paragraph is sloppy; it equates "conclusory statements" with "legal conclusion[s]", even though these are two different concepts. But certain conclusory statements, even under a properly-applied Iqbal standard, are entitled to the assumption of truth. For example, the statement that "X was walking down the street," though conclusory -- it provides no facts to suggest that X actually was walking down the street -- is entitled to the assumption of truth. "X was negligent," on the other hand, is not. Of course, the two statements are equally "conclusory"; the former is a factual conclusion and the latter is a legal conclusion.

So perhaps Iqbal meant to say that legal conclusions are not assumed to be true? But this cannot be: as Justice Souter wrote in his dissent, there are factual conclusions that are also not entitled to the assumption of truth: "that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel." And the majority's did not limit its plausibility standard this (or any) way. Instead, a court is to rely on its “judicial experience and common sense” in determining whether a claim is plausible, after disregarding “conclusory” allegations. Thus, in its attempt to discard improperly pled (factual? legal?) allegations, a court must necessarily draw on its own views as to what the facts are, or should be.

Iqbal also elevates form over substance. "X discriminated against me because of my race" is conclusory and would be disregarded. But "X discriminated against me; I am an Arab Muslim; non-Arab, non-Muslims were not discriminated against" probably would pass muster, even under Iqbal. But the second formulation adds nothing, as a practical matter, to the first.

There are a variety of other criticisms of Iqbal that I summarize briefly in my article. My only point here is to highlight the fact that Iqbal does not even necessarily hold water on its own terms. (Professor Arthur Miller, in Congressional testimony, has expounded some other criticisms, including the idea that Iqbal is the culmination of a line of cases steadily eroding our commitment to civil litigants' day in court.) I do not intend to be exhaustive here about all of these criticisms. I just want to point out that, by raising pleading standards, Iqbal raises the bar on plaintiffs, making it harder for civil plaintiffs to prevail on their claims.

In my next post(s), I will explain how the interaction between Pearson and Iqbal harms civil rights plaintiffs, and how this exemplifies what I call "procedural judicial activism." I'll also respond to the comments -- look forward to hearing more.

Pearson, Iqbal and Procedural Judicial Activism

Thanks again to the staff at Blackbook and the commenters for the welcome.

I want to start off by summarizing, in a few parts, my latest article, Pearson, Iqbal, and Procedural Judicial Activism. The paper takes aim at two cases the Supreme Court recently decided -- Pearson v. Callahan and Ashcroft v. Iqbal -- and concludes that the cases are problematic, not just on their own terms but also in terms of their potential interaction.

Pearson was a qualified immunity case. By way of background, qualified immunity is a doctrine that generally shields government officials from liability for their actions. In a nutshell, the rule that the Supreme Court formulated, which found its most famous expression in 2001's Saucier v. Katz, was this: a state official would not be liable unless his actions (1) violated a constitutional right and (2) that right was "clearly established" at the time of the relevant conduct. These two questions were to be addressed in sequence. As the Court explained, "This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry."

To see how this works in practice, consider the Court's recent decision in Safford v. Redding. Savana Redding was strip searched at school and subsequently sued, claiming that the search violated her constitutional rights. The Court held (at step one) that the search did in fact violate Redding's rights. But it went on to hold (at step two) that the right was not "clearly established" at the time of the search. Note the salutory effect of this sequencing: in the future, school officials will know the permissible limits of a search, and students will have a clearer understanding of their rights.

In Pearson v. Callahan, the Supreme Court made Saucier's sequencing optional. Now, courts are free to skip ahead to step two and grant an official immunity based on the fact that the asserted right was not clearly established. Note the problem: if a court skips to step two on the basis that the right in question was not clear, then the court does not pass on the nature of the right at issue. That means that, the next time a similar case comes up, the relevant right still has not been clearly established. Over time, the "voluntary sequencing" regime will have a detrimental effect. Courts will never need to address the constitutional question, the right will never become established, and the universe of claims available to civil rights plaintiffs is smaller than it otherwise would be. (Obviously, in some cases -- like Redding, which was post-Pearson -- a court will pass on the first question by choice; it is not inevitable that all cases get kicked out by a court moving directly to step two. But these will generally be the exception.)

This is why Perason is problematic on its own terms: by permitting courts to bypass the first step of the immunity analysis, it will limit the range of claims that civil rights plaintiffs can bring.

In my next post, I'll summarize the problems with Iqbal, and in a third, I'll explain how the interaction between these cases harms civil rights plaintiffs. The article is still forthcoming, so if anyone has comments, I'd love to hear them and, to the extent feasible, will work them into future drafts.

The Power of Oral Dissents

The New York Times reports that dissenting from the bench is on the rise. With Justice Ginsburg holding the record for most oral dissents, other justices have stepped up to add a little more sarcastic flavor to their written dissents. Is this just a way to stick it to the majority, or is it because justices feel so passionately against the court's holding that they must outwardly express their displeasure?

The article mentions that some of the more prominent oral dissents were in cases such as Ledbetter v. Goodyear Tire and Rubber Co. and Stenberg v. Carhart, which, in Ledbetter's case, led to Congress passing the Lilly Ledbetter Fair Pay Act essentially overturning the original ruling. Maybe these oral dissents are a call to other sources to help overturn majority decisions when the justices themselves cannot get the votes. Then again, maybe it really is the political minority on the bench staking its claim and fighting back as aggressively as it can.

A Response from UT Law and a Clarification

A few days ago, we posted a story about the relative shortage of practical legal education opportunities at many U.S. law schools, as well as the according need for change. In that article, I cited an op-ed in the Daily Texan written by three University of Texas Law students on how UT Law does not currently offer a mandatory brief writing course for first years. A few other outlets--including the Legal Writing Prof Blog--picked up the story. Well, UT Law has chosen to respond to the articles. Specifically, Wayne Schiess, director of the Legal Writing program at UT Law, said in a statement to the Legal Writing Prof Blog:

It is true that the University of Texas School of Law has a first-year legal-writing curriculum without brief writing. When the law school administration removed credits from the required course five years ago, brief writing was lost. Needless to say, the legal-writing faculty thought it was a mistake. So we’ve been teaching a brief-writing elective that only some 1Ls can get into. We're optimistic that brief writing will return to the required first-year curriculum. Indeed, a proposal to do that comes before the faculty this week.

We applaud the changes the school is making. However, I want to emphasize that the article was not meant to single UT Law out. It is obviously a fine institution that provides its students with fantastic opportunities (so, Hook 'em Horns!). And thus, despite the intimations of numerous posters on message boards around the internet, I do not have a problem with UT Law as an academic institution; I do have a problem, however, with the law school system as a whole. If one takes a full glance at the article I wrote, as well as the February 2009 article it cited, one will see that many of us on this blog believe that we need substantial reform in the current law school model because it is simply failing students.

2009/2010/2011 BigLaw Class Years: The Gilded Ones?

Look around your law school campus and you will see the carnage left behind by the financial crisis. Classes of 2009/2010/2011 are left jobless and debt ridden. Among the detritus scattered around campus, however, there are the lucky few who have successfully secured gainful employment at some of the nation’s premier firms. It is my belief that these “survivors” of sorts are poised to have the most market (and hence financial) leverage in the medium- and long-term. There are two phenomena that support my assertion: 1) the seemingly unmovable law firm profit model; and 2) demographic destiny.

First, to quote Mark Twain, the reports of the BigLaw model’s death are greatly exaggerated. While some firms have moved away from traditional lock-step compensation systems and have outsourced the more mundane portions of their work, the fundamental premise of their business depends on starting large classes of associates at the bottom of the pyramid and slowly winnowing them out either via voluntary or forced attrition before they reach the top layers. Many of the survivors of this process who end up at the top of this pyramid are compensated with a consecrated slice of the partnership pie. So how does this ancient and seemingly indestructible profit model help the lucky few who landed summer associate positions? Simple. Supply and demand.

These lucky few will ultimately succumb to the same pressures experienced by any other BigLaw class year. Some will leave for government, some for mid-size/small law, and some will just leave the law period. This inevitable thinning of the 2009/2010/2011 class years will create an abnormally small layer in the BigLaw pyramid relative to the size of the firms’ respective partnerships. Ultimately, when the economy turns around (yes, one day it will be better; even the Great Depression came to an end after all), BigLaw will have more work than mid-level associates to do it. The result of this excess work and limited supply of experienced attorneys means that there could very well be a financial war between firms for mid-level attorneys. BigLaw firms will be unable to fill these voids in their ranks with attorneys from small/mid-sized law firms and the government because they will simply not have the requisite experience to do the work.

Second, viewing the future with more of a long-term lens, old partners, particularly baby boomers, have to retire at some point. Whether by “age-out” clauses in partnership agreements or simply by partners deciding that they have hit the end of the line, there is a large generation of law firm partners who will be heading for greener pastures in the next decade or so. The generations immediately behind them, particularly Generation X and the Millennials, are quite a bit smaller than their baby boomer predecessors. Come time for partnership promotions, there might very well be a shortfall in available talent to take up the reins of the firm; particularly, a shortfall in talent around the time the 2009/2010/2011 classes are up for partner. Those who make through the eight to ten years of hoops stand (I think) a much improved chance for partner compared to their boomer and Generation X peers.

So what’s the conclusion? Those in the Classes of 2009/2010/2011 who are/were able to obtain a BigLaw position may have some serious market power behind them in the medium- and long-term. So long as these individuals can wade through the next two to three years of economic waters, they stand an excellent chance to develop a skill set that will be in high demand during the medium term (i.e., during their mid-level years) due to limited supply. Further, any members of these Classes who manage to survive eight to ten years in their firms also stand an excellent chance of making partner due to demographic pressures on the boomers.

Obviously this is all just speculation. Should the overall size of BigLaw shrink my predictions will not hold. However, given the ever increasing levels of regulation coming out of Washington, I believe that there may just be an enormous opportunity for these lucky few.

Informational Asymmetries, the Emperor's New Clothes and More Cries For Value

Early in 2009, we noted that the recession has exposed numerous deficiencies in the current legal education system. Accordingly, we argued for a systematic change in curriculum and focus. It appears that law students elsewhere are yearning for the same at their institutions. From The Daily Texan:

[C]riticisms [of the University of Texas Law School] are well-founded. In a survey of accredited law schools, Texas was the only school without a mandatory brief-writing course. In fact, only about half of first-year students surveyed reported being able to get into a brief-writing course. As a result, they will not be trained how to present arguments to a court — one of the most basic legal skills.

Instead of rectifying the problem by meeting national practical skills standards, UT Law instead chooses to steer law students away from taking practical courses by offering grossly grade-inflated first-year electives on such totally impractical topics as Race and Gender in the Constitution.

The first-year curve in all courses is set at 3.3; the average in these “electives” is a 3.8. A student in Race and Gender in the Constitution commented, “The class is a complete joke and a waste of time, but the professor gives almost everyone A’s.” Since law students’ employment is determined by their first-year GPA, creating such an exception to the curve is unfair to other students and misleading to employers relying on the veracity of student transcripts. . . .

So law students can game the system and come out Order of the Coif, while not knowing a single thing about the basic exceptions to the hearsay rule? I can vouch for the fact that this is an absolutely accurate characterization of the system as it is constituted both at my institution, and as the authors noted, at others.

But more pertinently, law school seems (oddly enough) to present a sort of transparent information asymmetry cogently illustrated by the student in this article: in many respects, law schools fail to meet the demands and expectations students have upon entering and that employers have when hiring. Yet, it seems like we all know a little bit of what we are getting at the outset; the sales pitch is just all too compelling. In this sense, law school is more like an experience good that shouldn't demand any sort of warranty. But the problems are still exceedingly pervasive. As the authors noted with respect to their institution:

[There is a] deeper problem at UT Law that has drawn criticism from all corners of the legal industry: Lax institutional standards have marginalized the law school’s role in society of preparing its students to be competent, ethical lawyers.

I hate to say it, but this problem is not confined to UT Law. We need major reforms soon, because permitting students to become engulfed in massive amounts of debt with little to no guidance on how to be competent lawyers will (inevitably, I think) continue to dilute the profession's quality, and worse yet, harm students' lives. Law students ought to be more vocal in their cries for change like the authors in the noted article.

BREAKING: Chief Justice Will Not Resign!

From Radar Online:

John Roberts, Chief Justice of the United States Supreme Court, is seriously considering stepping down from the nation’s highest court for personal reasons, RadarOnline.com has learned exclusively.

Clearly big news (or rumors). This would give President Obama the ability to establish a firm liberal legacy on the Court.

Perhaps this rumor/news is related to the Chief Justice's health. As you may recall, Chief Justice Roberts suffered from a seizure while on the Court. He suffered from a similar seizure in 1993 as well.

UPDATE: Radar Online has retracted their statement and now notes that the Chief Justice will NOT be resigning. See what happens when you read the tabloids?

Joinder and Dispositive Motions

Though I have never blogged about it here, dispositive motions are currently my main legal interest. I recently published a student comment, for example, arguing that summary judgment has the capacity to be granted inappropriately in factually driven inquiries and that such decisions violate the Seventh Amendment. (Yes, I posted my comment on SSRN.)

I write today to float around an idea along these lines that I am considering addressing in some form:  whether increased use of party and claim joinder by plaintiffs, under Rules 13, 18 and 20 have led to an appreciable increase in granting 12(b)(6) motions and summary judgment. My (currently baseless) suspicion is that increased use of party and claim joinder may have played a contextual role in informing the Supreme Court's decisions in Celotex and its 12(b)(6) analogue in Twombly. While it is commonly understood that both decisions make it easier for defendants to prevail without going to trial, I wonder to what extent--if any--the decisions were designed as (or have been used as) tools for lower federal courts to simplify cases with multiple defendants and claims.

My current thinking is that this examination would be best conducted with an empirical analysis tracking the use of joinder over the last 30-40 years. I would be interested to hear our readers thoughts on the methodology, and the idea generally.

A Curious Framing of First Amendment Rights

From the Seattle Times:

A Clackamas [Oregon] man has filed a federal lawsuit over what he says is his First Amendment right to express himself by giving the finger to sheriff's deputies.

Robert Ekas tells The Oregonian that he flipped off Clackamas County sheriff's deputies because he has a constitutional right to do it. Ekas also says he is protesting police violence.

In his lawsuit, Ekas says that in July 2007 he flipped off a Clackamas deputy while driving, and the deputy gave him tickets for illegal lane change and improper display of license plates. He was acquitted on the citations. A month later, he gave the finger to another deputy, who detained him but wrote no tickets.

Hmm. . . . I wonder whether this constitutes "protected" speech.

Introduction and Thanks

Hi Everyone,

First of all, thanks to Craig for the nice introduction. As he mentioned, I'm a recent law school graduate currently living in New York, where I am an associate at a law firm. Over the past few years, I've published law review articles on a range of subjects, from gay marriage to civic engagement to the takings clause. My most recent article was on stare decisis and was discussed on this blog last year. I've got a couple of other pieces in the pipeline, which I'll blog about soon. I'll also share my thoughts on other issues as they come up. Sometimes I'll be discussing works that are still unpublished, so I'd appreciate any feedback or comments you might have.

Incidentally, the views in my articles and my blog posts are my own, not those of my firm, Blackbook, other editors on this blog, or any other individual or entity. And, although I'd like to blog about interesting legal issues in the news, I won't be blogging about anything work-related, even if news about those matters is already public, just to steer well clear of any confidentiality concerns.

I'm looking forward to blogging here and engaging in discussions with all of you. Feel free to contact me with any questions, comments, criticisms, or funny jokes. Thanks to Craig, Nima, and everyone else on the Blackbook team for inviting me to blog with them. This should be fun!

New Contributing Editor--Blackbook Legal Welcomes Goutam Jois

The Blackbook Legal Blog is delighted to announce that Goutam Jois will be joining our ranks as a contributing editor. Goutam is currently an associate at a large New York City law firm. Prior to joining the firm, Goutam clerked for Judge Wolf on the District of Massachusetts and Judge Straub on the Second Circuit. Goutam graduated cum laude from Harvard Law School in 2007, and also holds a Masters and Public Policy from Georgetown where he also earned his A.B. magna cum laude.

Goutam is widely published, and--in fact--we've featured his scholarship on these pages in the past. We welcome Goutam, and look forward to an abundance of substantive legal posts on the legal issues of the day.

Space Junk Getting Worse

Space Junk. . . . the old rocket clunkers, metal scraps, and dilapidated satellites littering the final frontier. It's an illustration of a tragedy of the commons on a massive scale, and there seemingly has been little done to remedy it. An MSNBC article written last week notes how the problem is getting worse:

The already untidy mass of orbital debris that litters low Earth orbit nearly got nastier last month. A head-on collision was averted between a spent upper stage from a Chinese rocket and the European Space Agency's huge Envisat Earth remote-sensing spacecraft. Space junk tracking information supplied by the U.S. military, as well as confirming German radar data, showed that the two space objects would speed by each other at a nail-biting distance of roughly 160 feet (50 meters).

This problem is quite substantial because such items flying around the earth's orbit act as virtual bullets that can penetrate satellites and spacecraft, potentially causing considerable and costly damage. While the science is fascinating, at BBL we are (as always) interested in the legal issues presented by this problem.

There are two related issues that I have been involved in researching recently. First, the problem seems to be partially attributed to a lack of effective regulation on a global basis. It is true that agencies such as NASA have implemented certain guidelines to deal with the issue, and the U.N. has also attempted to solve the problem--i.e., United Nations Committee on the Peaceful Uses of Outer Space. But space debris nonetheless seems to continue causing problems. The image in this post alone illustrates just how pervasively such "junk" permeates earth's orbit.

I want to pose a question regarding further regulations' potential effectiveness. The problem of space junk, I think, can be partly attributed to the fact that governments, in essence, are the entities that need to be regulated. Thus, are self-imposed guidelines, for example, largely ineffective in an area such as space regulation because of the biases countries may have toward the domestic advancement of space exploration? International dispute resolution bodies--such as the World Trade Organization--have shown success in adjudicating disputes between member-bodies over alleged anticompetitive trade actions. But can similar schemes be implemented to deal with the space debris problem?