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.


  1. Interesting take. I definitely think there's something to the notion of procedure insulating flaws in the decisionmaking process. Unfortunately, it often fails. As you say, appellate courts almost always affirm, and at least in the Circuit I practice, I think most cases get the short shrift. I suppose knowing the possibility of review and the mounds of procedure is prophylactic in a way...

  2. By prophylactic, do you mean that judges at the district level are less inclined to reach the "wrong" result because of the threat of appellate review?

  3. @1:40: I think that's one way to look at it. Let us suppose that society can articulate a set of "true preferences". An incorrect decision would be one that deviates from those preferences. Let us stipulate that all deviations are solely the product of judicial caprice.

    Judges concerned about their reputations might not, as you point out, want to be known as the one always getting things "wrong". But there is another sense in which procedure is prophylactic. Again, imagine some "true" medium. If we are concerned that different jurists will have different biases (in civil litgation, say, pro-plaintiff and pro-defendant), we might erect procedural safeguards to check against BOTH biases. Thus, we might counteract the pro-plaintiff jurist by letting the defendant dismiss the case on the pleadings. But we might warn the pro-defendant jurist that, faced with such a motion, he must take all well-pleaded allegations as true and draw inferences in favor of the plaintiff. The defendant's liability at trial is balanced by the plaintiff's burden of proof, and so on.

    In this sense, countervailing procedural rules keep us from straying too far in either direction, and help tamp down a given judge from moving too far from the middle.

  4. It may be an overstatement to say that standards of review for, say, judgment on the pleadings or other dispositive motions really cut the balance you describe. In practice, the actual standard is often paid lip service. Courts purport to view the facts in the plaintiff's most favorable light, but inject weight and credibility into the analysis when they see fit. I'm sure you'll agree; I've read your other scholarship, and you've more or less acknowledged the same.

  5. Obviously I agree that sometimes the relevant standards are paid lip service. But that proves too much and we are back at the defeatist position (everything is subjective; let's go have a beer). In fact, I think the procedural balancing is quite important. I noted in this post ( that one of the problems with Pearson and Iqbal is that there is no balancing; all of the "discretion" cuts in one direction. And I make the same balancing point in the Pearson-Iqbal article itself ( ; p.42 of the PDF).

    My analysis, as you imply, does not answer questions about judges who decide cases in bad faith or based on baldly political reasons. But in the vast middle, there are myriad subconscious forces at work. And if procedural institutional balancing is an explicit consideration, then I think it can in fact work as a restraint -- albeit an imperfect one -- on implicit substantive bias.

  6. I clerked for an appellate judge many years ago who was very much of the opinion that trial court judges should be affirmed if at all possible. He was a trial court judge for 20 years, and he thought that they knew what they were doing, that they saw the witnesses and they knew what the "right" outcome was, and we shouldn't interfere with that if at all possible. To draft an affirming opinion, you didn't need to discuss it with the judge. But there were occasions when the trial judge was unavoidably wrong on the law, and we had to draft a reversing opinion. In those circumstances, we had to discuss it with the judge and convince him. But there were definitely times -- admittedly rare -- when objective law overrode subjective gut feeling of right and wrong.

  7. --> Tracy,

    Out of curiosity, did you work for a federal appeals court?

  8. I think I might agree that judges feel out how they want to rule and then make sure they have the law to support than. The cannons of construction are just so fungible that you really can come to different results using those rules.

    But should we be surprised? Isn't this how we are trained in Law School Advocate and argue for a position, trying to use the law and fit it into you clients position? Then when you become a judge all of that training isn't just going to go away.



  9. Mike's point, to me, is well-taken. However, I believe that ethics is also something that we learn in law school. Better or not, judges have an obligation to neutrally apply the law, not advocate.

  10. I hope you have a nice day! Very good article, well written and very thought out. I am looking forward to reading more of your posts in the future.

  11. Great post. I’m a normal visitor of your site and appreciate you taking the time to maintain the excellent site. I’ll be a regular visitor for a long time.

  12. Hi there just wanted to give you a brief heads up and let you
    know a few of the pictures aren't loading correctly. I'm not
    sure why but I think its a linking issue. I've tried it in two different internet browsers and both show the same outcome.

    Look into my weblog; air max 2012
    My site - cheap air max 2012

  13. Every weekend i used to go to see this website, as i wish for enjoyment, as this this
    website conations really fastidious funny information

    Feel free to surf to my weblog; ray ban outlet

  14. Admiring the dedication you put into your blog and detailed information you
    offer. It's awesome to come across a blog every once in a while that isn't the same old rehashed material.
    Fantastic read! I've bookmarked your site and I'm adding your
    RSS feeds to my Google account.

    Also visit my site - CHI Flat Iron Official Website

  15. Admiring the dedication you put into your blog and
    detailed information you offer. It's awesome to come across a blog every once in a while that isn't the same old rehashed material.
    Fantastic read! I've bookmarked your site and I'm adding your RSS feeds to my
    Google account.

    Also visit my web page :: CHI Flat Iron Official Website

  16. As the admin of this web site is working, no doubt very rapidly
    it will be renowned, due to its feature contents.

    My web-site - Ray Ban Outlet

  17. Historically, you understand several such cases attributable to Nike.
    in addition, it properties a mid bottom shank as extremely as a
    fill out time-span phylon midsole. Tweets RSVP is would
    prefer to help manage method launches at nike Stores.
    The growth from this new vogue market is are described by your in the
    know as explosive.

  18. Not adverse when we become shopping for golf shoes,
    still classy though. Price tag products does not equal
    to down quality. One of these shops stationed on the vast is Nike Storm.
    Believe it or not, these selfsame item can come off the internet for just $8.

    my web-site ... womens nike air max

  19. Nevertheless a family feud, led these at least two brothers to ripped up, and Puma was born.
    Innovative designs, trusted brand, good, sound manufacturing.
    However, those most popular a specific is the nike shoes.

    As the use we want find out the best items
    available on industry industry. http://www.

  20. Color-Diamonds are crystal unobstructed or come near champagne or black hues.
    It may help you stand out on the golf coaching course. US Tour player Becky Morgan
    and European Look golfer, Jackie Kebbell wear Moose Golf Clothing.

    To whom doesn utilize a brand new couple nike comfortable

    My blog - nike air max 1

  21. I drank everything and put generally empty bottle home.
    It communicates instead, in a remarkable language that feel
    the need to be interpreted. Abdominal muscles high income but negative cash stream.
    The Special sequence products feature diverse items from one of the
    most popular designers in addition , guests. http://tonbook.

  22. It has a high-resolution multi-touch inch screen
    with a wide viewing angle. Above all, pick a good solid shoe that can your feet satisfied.
    Very low priced products does not equal to very low quality.

    Its insular nature safety measures us in public places with
    a collection of our favorite melody! http://www.

    my homepage :: nike air max

  23. But Adidas sneakers are also not very much behind in the race.
    Picture used in stylish logos should talk to each other the style of just a brand.
    Their choices of to be able to wear are in addition , expanding.
    Troubling about what can happen will not help you deal with what's at hand.

  24. 通常を着用してくださいは暗いとさらに洗練された色生地あなた典型的なカットに係るアメリカ人適合広いですで肩と同様、少しのため、まっすぐカバーに沿って、側面最初があった、コンポーネントの非定型の美しさの

    Also visit my web-site ... ヴィトン モノグラム

  25. Excellent site you have here.. It's hard to find high quality writing like yours nowadays. I honestly appreciate individuals like you! Take care!!

    Feel free to visit my blog post; Ralph Lauren

  26. It is not my first time to visit this web site, i am visiting this site dailly and get pleasant data from
    here every day.

    Here is my weblog ... Ralph Lauren

  27. Today, I went to the beach with my kids. I found a sea shell and gave
    it to my 4 year old daughter and said "You can hear the ocean if you put this to your ear." She put the shell to her ear and screamed.

    There was a hermit crab inside and it pinched her
    ear. She never wants to go back! LoL I know this is
    completely off topic but I had to tell someone!

    Here is my webpage :: Oakley


Note: Only a member of this blog may post a comment.