Friday, April 29, 2011

Eighth Circuit Issues Temporary Stay; Reinstates Lockout (UPDATED)

(Updated below.)

The Eighth Circuit Court of Appeals has issued a an "administrative stay" of Judge Nelson's decision lifting the lockout. This is a temporary measure, in place until the underlying motion for a stay can be decided, probably early next week. This was a 2-1 decision. The two judges in the majority were appointed by President George W. Bush; the dissenter is an appointee of President Bill Clinton. It is not clear if this is the same panel that will decide the underlying stay request on Monday.

Stay tuned for more details.

UPDATED: The majority -- Judges Steven Colloton and William Benton -- granted the NFL a temporary administrative stay with little discussion. They wrote, "The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for a stay pending appeal.", cited a few cases, and concluded, "The district court's order of April 25, 2011 is temporarily stayed." The majority framed this as an issue of basically putting things on hold while it considered the merits of the NFL's stay motion (which will get full briefed on Monday morning and considered shortly thereafter).

Judge Kermit Bye dissented. He argued that the stay should only be used for emergency situations, such as when an immigrant is about to be deported or when a prisoner is about to be executed. He wrote, "The NFL has not persuaded me this [an] emergency situation which justifies the grant of a temporary stay . . . . If we ultimately grant the motion for a stay, the NFL can easily re-establish its lockout. The NFL is certainly not in the same emergency position as an immigrant about to be removed, or an individual about to be executed".

Note that this decision puts the lockout back in place only for a few days, when the Court will decide whether the lockout should be reinstated for the entirety of the appeal (which will take weeks if not months). To win such a ruling, the NFL will have to show that it would suffer "irreparable harm". In this regard, it is telling that Judge Bye wrote, "the NFL has failed to satisfy me it will suffer any irreparable harm from allowing the district court's order to take effect."

We do not know who will be on the three-judge panel that ultimately decides the stay request, but Judge Bye's dissent suggests that, if he is on the panel, the NFL will have its work cut out to convince him of the harm it is suffering.

Note also that Judges Colloton and Benton did not discuss the merits of the case at all, so it is impossible to know what they think of the case itself.

Players File Opposition to Owners' Request for Stay (UPDATED)

Note: Update Two Three updates below.

The players have just filed their opposition to the owners' request for a stay in the Eighth Circuit Court of Appeals. Their brief is 30 pages long -- over the Eighth Circuit's page limit, so they had to file a motion earlier today asking for permission to go over -- but it makes the same arguments we've seen before. Most critically, they hit on the point that the NFL will suffer no harm in the absence of a stay. To get a stay of the injunction, the NFL has to show that it will suffer "irreparable harm". The players say that, because the teams reopened for business today, and intend to issue rules for player transactions soon ("likely tomorrow", the NFL said yesterday), the NFL is well equipped to resume business immediately. The fact that it can do so, in the players' view, demonstrates the lack of irreparable harm.

(The owners' argument, from their brief yesterday, is that there are legal impediments to lifting the lockout and that, if they (the owners) "produce their collective product", they face the risk of further antitrust liability.)

The new brief doesn't raise any points we weren't expecting. However, I was struck by the fact that it never mentions the word "contempt". (And, thus far, no contempt filings at the district court.) This suggests that the players are backing off of their hard line, especially in light of the fact that the Eighth Circuit has not (yet) issued a temporary stay, which means that League operations can (and in the players' view must) resume.

Check back later for some more analysis.

UPDATE: Some outlets are reporting that the stay has been granted. This is incorrect, as of 2:10 p.m. Eastern time. The Eighth Circuit granted the players' motion to file a brief in excess of the page limits. The Eighth Circuit has not granted a stay.

UPDATE #2 (4:15 p.m.): Still no stay. The earlier reports of a stay being granted have been retracted. The owners have asked for permission to file a 15-page reply (instead of the usual 10) on Monday morning, but no other substantive activity on the dockets, either at the Eighth Circuit or the District Court.

UPDATE #3 (6:00 p.m.): Still no stay (or contempt motions), although the owners' motion to file an overlength brief was allowed.

Thursday, April 28, 2011

Latest NFL Lockout News (UPDATED)

(Updated Two Three Four updates below)

The owners have filed a letter in the Eighth Circuit responding the players' letter from earlier this morning, and attaching a letter from the players' counsel (James Quinn of Weil Gotshal) indicating that it was the players' view that league operations must resume immediately and that the owners were in contempt if they did not. Check back shortly for more.

UPDATE: Earlier today, James Quinn, attorney for the players, sent a letter to Gregg Levy, attorney for the NFL, which concluded, "Please confirm that the League will commence 2011 league operations with immediate effect, including the opening of the free agent signing period and the provision of player access to team workout facilities and personnel. Failure by the NFL Defendants to comply with the Injunction Order is grounds for contempt, and the Plaintiffs will pursue appropriate remedies."

Fifteen minutes ago, the League wrote a letter to the Eighth Circuit, attaching Quinn's letter and reiterating their request for a temporary stay. In their letter this morning, the players wrote that they would like the Eighth Circuit to hold the owners request "in abeyance" -- saying, essentially, "Please don't rule on this until we can get out papers in tomorrow". The owners (rightly, I think) are saying that delaying a decision is like denying the request: if the Eighth Circuit does not issue a temporary stay, the players will argue that the League must resume business immediately, on pain of contempt, with the threat of "appropriate remedies".

Remember, a "temporary stay" means that the Eighth Circuit would temporarily put Judge Nelson's decision on hold -- preventing the start of the new League year -- until it makes a final decision about staying her decision while the actual appeal is pending. The owners write that a temporary stay would only last a few days, and in this regard they are probably right.

I suspect that the owners will get their temporary stay. The players will put in their opposition to the stay tomorrow afternoon, the owners will respond, and we will have an actual stay decision within a few days. Getting that stay -- to put the decision on hold for the pendency of the entire appeal, a process that could take months -- will probably be much harder to come by.

UPDATE TWO (1:20 pm): The Eighth Circuit just issued an order which reads,

The National Football League has filed a motion for stay pending appeal and to expedite the appeal. The Players are directed to file a response to this motion by Noon, CDST, on Friday, April 29, 2011. The League’s reply to the response is due by 9:00 a.m. CDST, on Monday, May 2, 2011.

The League’s motion for a temporary stay remains pending before the court.
I wonder why the temporary stay motion was not decided yet. Probably not great news for the owners, though it's always hard to predict these things.

UPDATE THREE (1:40 pm): The rumblings are that the players will write a letter to Judge Nelson to clarify that the League year must begin tomorrow. The NFL sent a memo to the owners indicating that facilities could open for business, but specifically not issuing any guidelines on free agency, trades, etc. Remember, in his letter earlier today, players' attorney James Quinn wanted the League to confirm that the "League will commence 2011 league operations with immediate effect, including the opening of the free agent signing period and the provision of player access to team workout facilities and personnel". The League only agreed to one of those two things, but it appears that the League's memo was sent just before the Eighth Circuit's order taking no action on the temporary stay. If no temporary stay issues, contempt proceedings become much more likely.

UPDATE FOUR (4:20 pm): This afternoon, the players filed yet another letter with the Eighth Circuit, seeking to make "one final point" regarding the owners' request for a temporary stay. In short, they contested the owners' factual assertions, arguing that the league would suffer no harm by immediately lifting the lockout. They attached NFL's post-injunction memo to teams, which had specific provisions regarding OTAs, workouts, etc. -- but specifically did not mention player transactions. The players have been insisting that free agency must open immediately, and this letter continues that theme and attacks the owners for not complying with Monday's order lifting the lockout. No word yet on when the Eighth Circuit will rule on the temporary stay request.

As a practical matter, this doesn't change much -- we have heard these arguments before -- but it does suggest that the players are not backing down from the position that the League year must begin immediately, and presumably that failure to do so constitutes contempt.

NFL Lockout Update: Owners seek expedited review; players respond

Just before midnight eastern time last night, the NFL filed a motion at the Eighth Circuit Court of Appeals asking for a stay of Judge Nelson's preliminary injunction motion. The NFL also sought a stay pending a decision on the stay motion itself. In response, the players filed a letter this morning that they will oppose the request for a stay by noon tomorrow, asking that the temporary stay not be decided until then. The letter also gives a preview of the argument they will make in their brief, which is that the Judge emphatically found for them on each point below.

One important thing to note: In the owners' motion last night, the "expedited" schedule they seek would complete all briefing by May 31 with the motion argued "as soon as possible" after then. So we are realistically looking at at least 5-6 weeks before a decision from the Eighth Circuit -- another month just for the papers to be submitted, and -- even if the case is argued immediately thereafter -- another week or two for a decision. This isn't going to be resolved anytime soon.

I was struck by the owners' proposed briefing schedule: their opening brief be due 5/10, the players' response by 5/24, and their reply by 5/31. This seems like a downright luxurious time frame under the circumstances. I am surprised they didn't seek to put in their opening brief on Monday (5/2), have the players respond by Friday (5/6) and reply by the following Monday (5/9). Lawyers brief matters on tight schedules all the time, and I'm sure the firms involved have teams of associates working on these briefs as we speak (type. read. whatever.).

I wonder if the decision regarding the briefing schedule is a tactical one, keyed to the fact that Judge Doty will be holding a hearing on damages in the TV revenue case on 5/12, and that the parties are scheduled to have a mediation session on 5/16. Under the proposed briefing schedule, the owners' brief would be in before those dates, but the players' brief would not. Perhaps the best time for a settlement is between 5/10 and 5/24.

Fun fact: David Boies and Ted Olson together took the case to trial last year that struck down Proposition 8, California's gay marriage ban. Now Boies is representing the owners and Olson is representing the players.

Side note: there has been some talk that the owners might be in contempt of Judge Nelson's order if free agency does not begin today. So far, no contempt motions have been filed, either at the Eighth Circuit or before Judge Nelson. Moreover, Judge Nelson held last night that no team is obligated to sign any given player. So even if free agency is "open", it may not mean anything if teams are nonetheless unwilling to sign players. (Of course, if they acted in concert to refuse to sign players, that may pose its own legal risk.)

Wednesday, April 27, 2011

Judge Nelson Denies Stay (or: What You Didn't Know About the NFL Lockout)

First, some preliminaries: On Wednesday evening, Judge Susan Nelson denied the NFL's motion for a stay of the preliminary injunction pending appeal. Although it was widely expected that Judge Nelson would not stay her decision, the reasons she would give for denying the stay were unclear. Now we know.

ESPN's Adam Schefter tweeted, "Judge's 20 page order takes her 89 page order from Mon and hits the major points even harder. Makes NFL's attempt to get overturned harder." I think Adam is exactly right here. When it decides whether or not to reverse Judge Nelson's order enjoining the lockout, the Eighth Circuit will be applying the same legal standards Judge Nelson did, and her opinion provides a roadmap for the appeals court's potential analysis.

In particular, Judge Nelson repeatedly notes that she is only enjoining the lockout. All of the other aspects of the plaintiffs' case -- challenges to player movement and the draft, for example -- are not the subject of the preliminary injunction order and have not been adjudicated. Why does this matter? Because although Judge Nelson is ordering the NFL to lift the lockout, she is not ordering them to put in place any particular set of rules. In her words:

With respect to the NFL’s alleged injuries, this Court finds the League’s claim of irreparable harm, absent a stay, misplaced. The League may choose to act in accordance with its expressed belief that the Players remain a union and that they have reached a state of impasse, or the League may choose to chart a different course, implementing a version of the 2010 player system, or something different altogether. This Court’s Order does not obligate the NFL to enter into contracts, nor does it proscribe the League’s non-lockout conduct in general. Like any defendant in any lawsuit, Defendants themselves must make a decision about how to proceed and accept the consequences of their decision.
I find this notable for two reasons. First, Judge Nelson is telling the league that, although it must open for business, it can choose what rules it will operate under. Second, and more interesting, she is giving the league no guidance on what rules might be illegal. Essentially, she is telling the NFL, "You have to open for business. You decide what the new rules will be, but the rules you implement might themselves be illegal. You have to make a decision 'and accept the consequences of [that] decision'".

This is big. The NFL argued in its papers that it would be harmed if the decision was not stayed, because it would be forced to implement rules that might be illegal (i.e., violate antitrust laws). Judge Nelson was not swayed by that argument.

Now to the burning question: what does this mean as a practical matter? Well, teams will probably open their facilities and let players work out, get access to trainers, use practice facilities, etc. But what about trades? It is unlikely that we'll see any player movement in the near future. The NFL will say that it needs some time to figure out how player movement might occur. Judge Nelson notes in her decision denying the stay that the NFL has been proceeding under 2010's rules in some instances (for example with regard to franchise and transition player tags). The league may well extend those rules while the litigation plays out.

No one can predict when the Eighth Circuit will rule, let alone how. But let's assume that the Eighth Circuit affirms. (Most district court decisions are affirmed, and this one will be reviewed using a standard that is quite deferential to the district court.) How will this entire mess be resolved? This brings me to the "what you didn't know" portion of the analysis.

The latest reports before negotiations fell apart were that the two sides were separated by several hundred million dollars. Although this is a lot of money, in the scheme of things, it is not an insurmountable sum. But there is a bigger issue lurking (thanks to my friend Jason Reimer for talking through some of these issues with me). Remember, the union "decertified" -- meaning it disbanded as the collective bargaining representative of the players -- before the players' lawsuit. This is because a union cannot file an antitrust suit against an employer; only the individual employees can. Apart from the money issue, the owners are likely to insist that the NFL Players Association reconstitute itself as the players' union (not just a "trade association") as a condition of settlement. The owners would likely feel -- as Commissioner Roger Goodell noted in his recent Wall Street Journal op-ed -- that the threat of litigation would hang over their every decision. To allay that very real fear, they would insist on the players forming a union.

This is not new. The last time there was a work stoppage, the owners insisted that the players' union reconstitute itself (even though it did not want to); the players agreed to this only because the owners also agreed not to challenge any subsequent decertification. (This is at pages 10-11 of Monday's opinion.)

Well we know how that worked out: the players did decertify, and the owners did challenge it. Judge Nelson has rejected those arguments for now. But if a few years from now the NFLPA plays the same trick a third time -- decertify in order to bring a lawsuit -- the owners may finally succeed on their claim that decertification reflects nothing more than a negotiating (and litigation) tactic, that decertification is in fact a sham. The players know this too, and they might fight much harder not to reconstitute the union. But their refusal to do so could jeopardize any settlement -- even if the two sides agree on dollars and cents (and concussions and preseason games) -- because the owners don't want the brooding omnipresence of litigation in the background, and the players don't want to limit their legal options in the event of a future labor dispute.

And there is yet another moving part. On March 1, Judge David Doty ruled that the NFL breached its obligation to negotiate in good faith and maximize total revenue for the league when it guaranteed revenue for itself from television contracts even in the event of a work stoppage. (Essentially, the league gave TV stations a 'discount' for 2009 and 2010, so long as they agreed to pay about $4 billion for 2011, even if there was a lockout.) The players successfully challenged this agreement, saying that the owners had a duty to maximize total revenue for each year (because that pie is what is shared between owners and players), which they breached by guaranteeing themselves, but not the players, money in a locked out 2011.

But while Judge Doty has ruled for the players, he has not said what they are entitled to in terms of damages. This number could run well into the millions. If the figure is sizable, the players will have even more leverage: they would essentially be negotiating with the owners' money! (For example, they might "give up" the TV money -- which they don't have -- in exchange for concessions in the new labor agreement.) Obviously, opportunity costs are real costs, but as a psychological matter, it is much easier to give something up when you've never had it in the first place (endowment effect).

I wrote earlier that I'm confident that we'll have football in 2011, but after giving these last two points some more thought, I'm a little less confident. In particular, I think we will see a big sticking point as to whether the union has to re-form in order for any settlement to take place. And the owners might face a multi-million dollar judgment in a few weeks, after Judge Doty rules.

I suspect that in the next few days, the league will announce that it will resume operations under 2010's rules (no salary cap; franchise and transition tags in place; etc.) Free agents may try to market themselves to teams, but even Judge Nelson's second order notes that no team is obligated to actually sign any given player. In the meantime, the Eighth Circuit will set a briefing schedule and Judge Doty will take up the damages issue in the TV revenue case. All of these goings-on in mid/late May suggest that the best time for a settlement might be in the next couple of weeks -- and if we don't see a deal by mid-May, we may have much longer to wait.

Tuesday, April 26, 2011

The NFL's Worst Case Scenario

In my earlier post, I discussed several possible outcomes in the antitrust suit between the NFL and the players ("Tom Brady et al.") Earlier today, ESPN's Adam Schefter talked to NFL Commissioner Roger Goodell about some of the issues facing the League in view of the judge's latest ruling. As I noted in my last post, there are lots of moving parts here, and potentially, this dispute could be far from over.

On the other hand, there is a way that this could go downhill, very quickly, for the league.

On Monday evening, Judge Susan Nelson granted the players' motion for a preliminary injunction. She also held that the "'lockout' is enjoined". Shortly thereafter, the players sent a letter to the court asking for "clarification of the quoted language". The owners have until 5 pm today to respond. So what is the NFL's worst-case scenario?

The initial order said that the lockout was "enjoined". Judge Nelson could clarify that this means that the lockout must end -- immediately. If she issues this ruling Thursday night, there could be very serious consequences for tomorrow's NFL Draft. Remember, while the case was under consideration by the judge, conventional wisdom was that the draft would happen as usual, except that trades involving players would not be allowed (pick-for-pick trades would still be allowed).

If Judge Nelson holds that the lockout must end immediately -- but does not specify that the NFL's operations resume under the now-expired collective bargaining agreement -- then we would have a free-for-all on the eve of the draft. The league would be forced to reopen for business, but with no CBA in place, there would be literally no rules to govern player movement. You could see the Carolina Panthers trading their #1 pick to Indianapolis in exchange for Peyton Manning to play on an eight-game, $100 million contract. As an Eagles fan, I wonder what would happen to Kevin Kolb -- would he get snatched up by a team desperate for a new QB? (And what would the Eagles get in return?)

The league believes, as it wrote in its motion for a stay, that it is impossible to unscramble these eggs if and when the Eighth Circuit reverses the district court. But Judge Nelson has one more arrow in her quiver. She could emphasize that the lockout must end immediately, on pain of contempt. Generally, a party that does not comply with a court order would be in contempt of court. (In this case, that probably means a substantial monetary fine for each day the league does not lift the lockout.) As a practical matter, it is hard to get one's adversary fined immediately: If he does not comply with the order, you will have to go to court, ask for an order of contempt, he will have some time to respond to your request, etc. But if Judge Nelson says in her order that noncompliance will be punished by a specific penalty (say, a fine of $100,000 per day that the lockout is not lifted) , then the league will be on notice that a penalty will attach if the lockout was not lifted immediately.

So that's the NFL's worst case scenario: an order tomorrow evening clarifying that the lockout must be lifted immediately, with an explicit proviso that failure to do so will result in a finding of contempt.

By the way, this worst case scenario might be the NFL's saving grace. Imagine that the lockout was lifted (with "no rules") Thursday night. The crazy shenanigans that might occur (Tom Brady to the Bills for $1 billion!) are precisely why the league says, in their application for a stay, that the owners would suffer irreparable harm without a stay -- imagine trying to, in their words, "unscramble the eggs" if the Eighth Circuit were to reverse. But between Judge Nelson's clarification order and a ruling from the appeals court, which could easily take weeks, Judge Nelson's order will be the law. And the potential fallout for the owners is grave indeed.

Later today, I'll write about what the worst-case scenario for the players might be. Spoiler alert: it's that they lose on appeal.

EDIT: Corrected the day of the draft -- it's tomorrow, not Friday.

NFL Lockout Lifted; What's next?

As is pretty well known by this point, U.S. District Judge Susan Nelson ruled for the plaintiffs in Brady v. NFL, the antitrust lawsuit brought by current and prospective NFL players against the National Football League. What is clear is that the ruling granted the relief sought by the plaintiffs, namely, a preliminary injunction. What is less clear is what this means as a practical matter, particularly because the NFL has asked for a stay (meaning that Judge Nelson's decision would not go into effect pending expedited review by the appeals court). Judge Nelson has ordered the plaintiffs to respond to the request by Wednesday, which means that we will have to wait at least 24 hours to get some clarity on the situation.

Legal commentary on the decision is quickly proliferating through the blogosphere. Michael McCann has a great post up on Sports Illustrated breaking down the key practical and legal issues. (Disclosure: he has also blogged at The Situationist, where I have blogged in the past).

As McCann alludes to in his post (and as my friend Jason Reimer pointed out on twitter), the owners are in a bit of a bind. If the owners get together and decide how to respond to the ruling -- for example, by not engaging in any trades until the Eighth Circuit rules, a process that could take weeks -- they might face the risk of further antitrust violations (for colluding to restrict player movement, for example). On the other hand, the NFL raises a valid point in its motion for a stay, arguing that the league will suffer irreparable harm if it opens for business today, only to have Judge Nelson (or the Eighth Circuit) stay her decision a few days (or weeks) later.

One hurdle for the owners is that preliminary injunctions are reviewed very deferentially. Just a few months ago, the Eighth Circuit wrote,

“We review the district court's grant of a preliminary injunction for abuse of discretion, giving deference to the discretion of the district court.” . . . "An abuse of discretion occurs if the district court rests its conclusion on clearly erroneous factual findings or if its decision relies on erroneous legal conclusions.”
Rogers Group, Inc. v. City of Fayetteville, 629 F.3d 784, 787 (8th Cir. 2010) (citation omitted).

What does this mean as a practical matter? "Abuse of discretion" is a very hard standard to meet. To be reversed, Judge Nelson's decision would have to be so obviously wrong ("clearly erroneous") that it is implausible. Generally, appeals courts do not like to tell district courts that they have blatantly screwed up. This makes the climb that much steeper for the owners.

I continue to be optimistic that we'll have a football season this fall. Indeed, I never really thought we wouldn't have football this fall. The real question is, when a deal gets done that brings us the 2011-12 season, what will that deal look like? Last night's decision tilts the scales in favor of the plaintiffs, so that they have a little more leverage in the negotiations. About 20 years ago, in the context of divorce law, Robert Mnookin and Lewis Kornhauser wrote that parties "bargain in the shadow of the law". That is, the law does not "impos[e] from above, but rather . . . provid[es] a framework within which [parties] can themselves determine their . . . rights and responsibilities.”

Something similar is happening here. Last night's decision ended the owners' lockout, at least temporarily. But more important, it changed the negotiating context for owners and players. A reversal from the Court of Appeals would change that context once more.

Notably, Judge Nelson's decision was made at the preliminary injunction stage. In theory, this is a temporary decision -- in place only until the underlying lawsuit is finally resolved. That means, even if the Eighth Circuit does not immediately reverse the decision, Judge Nelson herself could ultimately rule in the owners' favor at some later stage in the case. By its terms, this decision is "preliminary".

In practice, the case will probably resolve itself long before any major further proceedings. But because the case has so many moving parts -- the owners' appeal, potential further proceedings before Judge Nelson, the owners' NLRB complaint against the players, the players complaint against the owners regarding TV revenue, and (lest we forget!) the actual terms of a future collective bargaining agreement -- the dispute is far from over.

Friday, April 22, 2011

New Design

We're trying a new design. Let us know if you like it, or prefer the old

Thursday, April 21, 2011

The Stress

It begins for those in our profession the moment you decide to attend law school. We stress about the LSAT, getting into the best school, beating 1L, getting onto law review, setting up a job, getting a clerkship, publishing our student notes and comments, passing the bar, and so on. Are lawyers just creatures of stress due to the overwhelming amount of type-A’s in our midst? Or, does the work in this field simply facilitate anxiety? Whatever the reason, excessive stress is problematic, and can lead to other mental and physical health issues, including depression. In fact, I recently observed a thread in an online forum where prospective bar exam takers were utilizing hypnosis to counter the extremely high level of anxiety they were experiencing in preparing for the bar exam--there has to be a better way.

To that end, Damien Carrick, of ABC Radio National (Australia), discussed this issue in depth on the April 6th edition of his radio program, the Law Report. In particular, he spoke with various attorneys and medical professionals who offer advice on various measures you might consider taking if you’re a lawyer suffering from high levels of stress.

This is an issue that I believe is not taken seriously enough by most legal professionals, so check out the transcript.

Monday, April 4, 2011

Procedure, Substance, and Why Are We All Here?

Over at The Situationist (where I have blogged in the past), the staff has posted an essay considering the intersection of two topics: the tension between preferences and principle, as explicated by Knowles and Ditto, and statutory construction. Knowles and Ditto argue that people's preferences override their principles, that is to say, individuals' preferred outcome trumps whatever principles they claim to adhere to. The Situationist post draws a parallel between this and Llewellyn's famous critique of canons of construction. Llewellyn argued that each given canon had a "counter-canon", which was equally legitimate and could thus be used to reach the opposite result. Rather than using the principle to reach a conclusion, Llewellyn suggested that the judge decided on a result and chose the appropriate cannon. The Situationist post makes connections between Llewellyn's work and the more recent Knowles and Ditto piece. That post concludes:
Does this insight lead to the inescapable conclusion that the use of canons in statutory interpretation is inherently invalid? Not exactly. First, abolishing the use of canons would do nothing to solve the “problem” of results-based reasoning—judges could simply rely on other tools, such as legislative history, to provide post hoc rationalizations of their preference-based decisions. Legislative history is subject to the same critiques as the canons of construction; namely, that there is often legislative history support both sides of a debate, allowing judges to, as Justice Scalia put it,“look over the heads of the crowd and pick out your friends.” This argument is somewhat defeatist in that it seems to concede that the human decision-making process is inherently flawed. However, decision-making on the basis of intuition is not inherently invalid, and may actually “reflect adaptive insights accumulated over the course of human evolution.”

Further, our system requires judges to do more than simply declare “yes” or “no.” Federal Rule of Civil Procedure 52(a) requires judges to explicitly state their findings of fact and conclusions of law; this rule has three important ramifications to our topic. First, the very act of committing their reasoning to paper may reveal a judge’s logical inconsistency or suboptimal use of a canon to him or herself. Second, writing an opinion allows dissenting judges to file their own opinions in response; these dissents may reveal stronger arguments to judges in the majority. Finally, our appellate system allows incorrect legal conclusions made at the lower levels of the court system to be corrected by the high courts. This doesn’t entirely overcome the defeatist position, as having many biased decision-makers arguing about differing biased decisions solves very little in a search for an objective truth, but that stance presupposes the very existence of an “objective truth” – a topic far beyond the scope of this post. For now, we can take solace in the fact that even if Knowles and Ditto are correct in that the individual decision-making process isn’t quite as objective as we’d like, any judge’s individual decision must survive several rounds of checks and balances before becoming law.
I want to pick on this conclusion. First, the "several rounds of checks and balances" really provide that much "solace"? Dissenting opinions only come about (if at all) at the appellate level. Trial-court decisions are typically decided by a single judge (rare exceptions notwithstanding) and are not subject to dissent. Most decisions are not appealed, and most appeals are affirmed. The Supreme Court, as it reminds us many times, is not a court of errors and declines to hear the vast majority of cases presented to it. Even at the Supreme Court and the Courts of Appeals, the most common dispositions are unanimous decisions. (I have not dug up the citations for this post, but I make these points in my recent article on stare decisis.) I wonder if this does not give lower court judges a tremendous first-mover advantage, particularly in state courts where the volume of cases is much higher (thus leading to the risk of less robust processes of error-correction, such that they are). More broadly, this raises the question of procedural checks on substantive errors. That is, we believe that imposing certain procedural hurdles (written decisions, appellate review, published dissents) will work out substantive mistakes. But it is not at all clear or intuitive that this should be the way to work out problems in the law

The response might come, "Well what is the alternative? Substantive checks on substantive errors? That simply encourages the second decision-maker substitute his (biased and subjective) judgment for that of the first decision-maker." But this position is, in the terminology of the post, "defeatist". If we are all looking out at the crowd and picking friends, then we may as well call the whole enterprise off. I'll only agree with my friends, you with yours, and we cannot reconcile our positions.

That counter-argument actually has quite a bit of purchase. The political system is constructed essentially on that premise, deferring almost entirely substantive questions, and insisting instead that meticulous procedural arrangements are met (two senators per state, two houses of Congress, judicial review, presidential vetoes, the Electoral College, etc.). It is as if the founders were aware of Aristotle's three forms of government (he called them six, but Machiavelli later explained, there are really only three; each can be either good or bad) and created each of the three branches in the image of one of those three forms (rule of the one, executive; of the few, judicial; the many, legislative).

Substantive ideals are also advanced by procedural means. Consider our criminal justice system's pro-defendant tilt. You can imagine a conversation that runs something like this: "We do not want individuals wrongfully convicted of crimes. Therefore, we will presume innocence and not require testimony from defendants. Those defendants who are convicted will have the ability to appeal, though as a rule, the government may not appeal an acquittal. Even after meaningful judicial review, some cases may slip through the cracks. Therefore, we will allow post-conviction collateral attack on convictions by means of the writ of habeas corpus or an adequate substitute for the writ. Finally, we will even allow private actions against individual government employees means of 42 U.S.C. § 1983."

All of these elements exist in our system, but one must ask if these rights are robust or hollow. Although defendants are not required to testify, police officers routinely seek waivers of Miranda rights. Criminal appeals are often summarily affirmed. The right to habeas corpus is limited at best; petitioners -- who are often proceeding pro se -- must comply with labyrinthine procedural requirements or risk immediate and often-irreversible default. Although § 1983 actions are a theoretical remedy, they cannot be used to challenge the fact of confinement; any monetary awards are limited by the Prison Litigation Reform Act; and in any case government agents enjoy absolute or qualified immunity in many cases.

One could draw two conclusions from this landscape. First, we might despair that court decisions have eroded our commitment to criminal defendants' rights (this is similar to the point about procedural judicial activism I make in this piece). But second, we might take some comfort in the fact that various procedural protections exist. Though they may be less robust than they could be, they are certainly more robust than the alternative (no protections at all!). If we as a society will be psychologically predisposed against criminal defendants, then a pro-defendant "systemic bias" may serve as an adequate thumb on the scale to correct that bias.

Wechsler's and Llewellyn's heirs will carry the debate on for years hence. Going forward, we might ask that these debates be informed by empirical data about how we humans actually think (and how we think we think). I am reminded of Robert Maynard Hutchins's lecture in the 1930s where he noted that the law had devoted an entire subject, the rules of evidence, to how jurors will react to different types of evidence (expert testimony, lay testimony, hearsay, etc.) -- yet no one bothered to consult psychologists and other social scientists about whether the law's assumptions had any basis in reality or not, and the psychologists had not given any study to the behaviors of juries! In a very real sense we are still only a few steps down the journey that Hutchins sought to set us on almost a century ago.

Perhaps the legal system will never perfectly embody "neutral principles" or "realism" (whatever those terms mean in a vacuum). But if the system aggressively seeks, identifies, and counteracts cognitive bias, then we may be closer to a framework that more accurately reflects society's "true", behind-the-veil preferences about how justice is best served.