Constitutional Law I

16 September

• Judicial review question = how powerful should courts be (overturn legislation, effect policy, etc.)
• Back with Ferdon
  WI statute limits noneconomic medical malpractice damages, Ferdon's award gets reduced, Ferdon appeals, and the court says this kind of cap is unconstitutional. The right to a jury trial is unrestricted, and for every wrong there should be a remedy. Those would have been good arguments, but the court just bases its decision on Art I § 1 of WI Const.

  Basically this statute infringes on either due process or equal protection rights (take your pick). The court quotes the standard "rational basis" test. Note that every statute denies equal protection of the law (that's what a statute does: it specifies that one group will be treated differently than another). But that's not really what is meant. The Equal Protection clause applies where there are "suspect categories." In that case, the court applies a "strict scrutiny" test (requires a compelling state interest, and is narrowly tailored to meet that interest).

  So, the plaintiff thinks the rational basis test fails, and the defendant says it's just fine. The court introduces this "rational basis with teeth" notion, which is perhaps a higher level of scrutiny. Under traditional rational basis, the court says this would be just fine. So under normal conditions it would be fine, but the court says these are not normal conditions, and we have a new test to apply.

  The cap is artificial, they say: it affects those who get large awards (i.e., the most injured) disproportionately. So why is it unconstitutional to cap a plaintiff's award? The court cites some studies saying that medical malpractice pay-outs would almost be unaffected by the cap-- there are so few awards that large anyway. So the cap is merely arbitrary: it just singles out a few plaintiffs as being the only ones who don't get what the jury thinks they deserve. Note that all legal boundaries (c.f. Holmes) are arbitary, in a sense.

  Some mathematical sleight of hand: the court says the US medical bill is $2T, and medical malpractice is 2% of that. Then they say the cap has no effect. Well $40B is still a lot of money. Note also that the figuring of the plaintiff's award ($700K) as $10K/year for 70 years is funny too: the plaintiff gets the lump sum now: just put that in the bank and earn $5K/year. You still have $700K at the end of 70 years.

  Oh, and the dissent points out that the court's stats are bogus as well. There's a lot more malpractice than the court acknowledges, and it's a serious issue. Not rare, and not as low-level as the court alleges.

  But the battle of studies, after all, is a mask for the policy disagreement about judicial review. The dissent thinks the court should not be a super-legislature. Of course, that's what judicial review always is. But the court here is changing the rules of judicial review-- and doing so under a smokescreen of statistics. The dissent attacks the majority, but doesn't say why.

  Basically, the dissent says that the court should be modest and shy with judicial review: basically for all the resons that we might not want judicial review. None of the arguments are really made here, but the dissent doesn't like to see the magnitude of judicial review expanding. When courts take the power of judicial review too far (i.e., when they go up against institutions with actual power), they tend to find that they have less power.

  So the legislature more than doubles the cap. The acquiesce to the substantive policy decision by the court that $400K is too low. But they also challenge the court: the court said that caps are unconstitutional-- irrational because the incidence of giving awards beyond the cap is so small. So this is even less rational, on the stated reasoning of the decision.

  Also, this result got some funding for Gabelman, so that Butler would lose the election. You can't really lobby the court, but you can effect the campaign for re-election.

  If you're a judge and you want to maximize your power, you don't lay bare your policy views, because then you'll incur the wrath of interest groups. Instead, you retreat to the text, and cite a pile of precedent. Note of course that on the exam, we need to explain the reason, not the rationalization.

• Technical limits on judicial review of cases: standing, etc. The question here isn't whether the court should exercise its power, but whether the court should accept certain cases in the first place. These are called prudential doctrine (meaning, on principle). The court won't hear a case if it doesn't want to. These doctrines are all Machiavellian: the court applies then when it wants to. The best known is standing: does the plaintiff have standing to sue, or is the plaintiff trying to gain access to the judicial branch improperly.
• Frothingham
  Mrs. Frothingham was displeased with federal welfare legislation (she was wealthy). She can lobby for change, but that didn't work out. So she tried to go to court, alleging that her due process rights, as a taxpayer, were being violated.

  Of course hundreds of millions of people are taxpayers, and we can't have them all suing every time they don't like some policy. You have to have a greater interest than your "diluted" taxpayer interest.

  So how diluted is too diluted? Well, being a federal taxpayer gets you nowhere. Being a state taxpayer is a little better, but a local taxpayer can probably sue.

• Flast
  The Warren court was an era of expanded court power. They apply rational basis with bite all over the place. Here, they say that where the constitution specifically oulaws something (e.g., establishment of religion), and the issue is not regulation, but expenditures by candidates, the plaintiff has standing.

  Douglass (dissent) argues that this pretty much abolishes standing: these distinctions are artificial. He suggests that the willingness to pay for the suit should convey standing, and that should be all.

• Sierra Club
  So here we've got the standing issue, not in the context of religion, but environmental regulation.

  Way back in the 1940s, the forest service wants to develop this site. But the machinery grinds slowly and tons of parties are involved. Sierra Club opposes the Disney development plan from the get-go.

  The statutes empowering the forest service say that they need to manage the forests for two things: to preserve the forest and to use the forest. These are contradictory, but Sierra club says they've gone too far in favor of the latter, and not far enough in the former.

  SCOTUS says that Sierra Club lacks standing.

17 September

• Pridential doctrines, standing, and Sierra Club
  The court says that Sierra Club doesn't have corporate standing. In order to have standing, you yourself have to be injured. You can't claim someone else's injury as your own; if we let suits like this go forward, it will erode the protection of standing.

  And why would that be bad? Who cares about standing? Well, it's a useful dodge for the court, of course-- they can skip out of a case that they don't want. The court doesn't say why, really. So what is the court's holding with respect to standing? Is it tough in defense of standing, or relaxed?

  The rhetoric is that standing is real, we're serious about it; don't just think we'll ignore it. But, like Marbury, the result belies the bluster. The court says that we don't question that this type of harm might amount to an injury in fact sufficient for standing-- you don't have to show that your wallet got hurt-- you can show that your ecological/aesthetic standards have been upset. If they were really defending standing, you'd expect them to specify monetary injury of some substantial amount: that would cut way down on litigation, and we'd avoid automatic acceptance of environmental disputes. So, having said they were going to be tough, it seems as though standing is broadened, not restricted. They don't doubt that the Sierra Club could bring the suit if they could find a person who is injured.

  So even though Sierra Club doesn't get SCOTUS to stop the development (so they're sad because they lose), they are given an avenue for further litigation. All they need to do is go and find "Harry Hiker," who says he's injured, and then they've got another 10 years of litigation and attorneys' fees and terrible PR for Disney. Disney, even though they won every legal battle, every legislative decision, and so on, gives up. So this is actually brilliant manipulation of standing.

  Should standing be a real obstacle to litigation, or a paper tiger? Now really, the cost of litigation means that individuals who file suits are going to be ones who truly know they've got standing. The other entities that can file suits are big NGOs, lobbying organizations, etc. Should they be able to get to court? If so, then they get to use the court as an end-run around the agency they're dealing with or the law they don't like. How easy should it be to get judicial review?

  Let's consider arguments on both sides:

  • Constitution: Art III § 2. "Cases and controversies." This implies that the court is not hearing political disputes or abstract debates or grumblings from the losers in the political contest. It should be real cases. It implies that there should be some threshold (i.e., a case) that you have to bring if you want the court to hear you. But it's not clear what that is. Meanwhile, Congress has acted with respect to standing, and has enacted laws saying you can get judicial review (usually over executive actions) under certain circumstances. See, for example, the Administrative Procedure Act (APA). This was first passed in 1946-- it's an effort to set forth in statute what the procedures will be for federal agencies. 5 U.S.C. § 553 (rule making) 554 (ajudication). Section 10 (5 U.S.C. § 702) says you can get judicial review if you have been adversely affected or aggrieved. And not just monetarily. So, then we have another issue: can Congress define constitutional standing? Is standing a legislative rule? Congress can set the jurisdiction of the federal courts. On the other hand, SCOTUS is the supreme interpreter of the constitution. This gets even more confused in Luhan, which says the constitution requires concrete injury. But Sierra Club says that the statute requires it.
  • Arguments favoring easy standing (Douglass's view: let's just let anyone who can pay sue; incidentally, he's the most famous environmentalist justice).
    • Well, courts are wise, so we want judicial review
    • We want judicial input and influence into legislatures and agencies because we distrust them: they are manipulated by lobbyists. Over time, agencies tend to be captivated by the groups that they regulate (i.e., forest service is in the pocket of lumber, skiing and entertainment), and we need someone outside the action to review them. So let's not erect a big barrier there.
    • And standing should be easy, because in the end it always is easy. You'll always be able to find someone who has standing. It isn't an insurmountable obstacle-- someone will always be happy to lend their name to the lawsuit, and this just makes things procedurally more complex and less efficient.
    • Standing is simply a device used by one interest group to harrass another. After all, Sierra was able to harrass Disney for another decade after ostensibly losing the case.
    • Disproportionate power rests with those who are disproportionately excited about an issue. Most people don't care about this site: there may be more skiers than hikers, but the hikers are more passionate about the development. So it makes sense to give them influence
    • And anyway, let's get rid of these barriers and litigate everything. It won't make the courts too domineering; all they have to do is favor the defendant (i.e. defer to legislatures and agencies). By taking the case and favoring the government, we remove a bunch of senseless obstacles
    • We want access to the courts: this is how lawyers earn money. It should be easy to get to court.
    • And, cynically, whether or not you think there should be standing depends on whether you like the decision below. If SCOTUS doesn't take the case, your side loses. So maybe the whole thing is a mask for substantive interests
  • Standing should be difficult because:
    • Courts are meddling everyplace. Democracy demands accountability-- we don't want to make all those democratic decisions (by legislatures, agencies, and executives) beholden to unaccountable lifetime appointees.
    • The genius of the American common law system is that it is intensely pragmatic: we look at each case on the merits, not at broad-based policy arguments. They decide whether A beats B, but not to make decisions about whether to preserve ecological wonderlands. (this echoes de Toqueville). The courts are not moralists-- they just decide who wins this case. If standing isn't a barrier, the courts will lose their pragmatic identity, and just become another political branch.
    • Interest groups will just manipulate standing in order to get to court to get their policy issue heard. So anyone who wants to can stagnate government, even though they lose the legislative or administrative battle, just by suing or threatening to sue. The courts shouldn't always be giving the loser another bite at the apple-- we need resolution to issues. We don't want to paralyze agencies from making decisions because of the threat of lawsuits. The anticipation of a lawsuit could be a source of power, entirely outside the legislative or administrative process.
    • If standing is easy, it'll be used, and all the interest groups will sue. This will clog the courts. They already have too many cases, and not many people think we should have a million federal judges. Agencies are swamped with lawsuits as well: the department of the interior is failing to list new endangered species because they've got so many cases pending that all their resources are devoted to defending lawsuits and we can't get our substantive work done. Some agencies have actually been shut down by litigation: at one point OSHA found that 96% of its decisions ended up in litigation. And 80% of EPA decisions. This means that the courts are replacing these agencies as decision-makers, so why have them in the first place?
    • Standing can be an artful mechanism for the court to refuse to hear a case, and to signal that something is coming. Cert granted, but no decision means that the court is thinking about an issue, but can't come to a decision yet. It invites scholarship and comment, so the court will be ready for the next suit. It also is a way to pull jurisdiction away from lower courts, and control them. So we want the court to be able to refuse standing.
    • And why should standing be available to undermine the will of the people? In a democracy, 2 million skiers beat 1 million hikers, and that's the end of it.
  • So, in the end, standing is hard to define, and remains a sneaky thing
• Lujan
  Congress passed the endangered species act. It basically promises to lobby groups that the government will never do anything to endanger a species. Of course, that's fatuous: we endanger species all day every day.

  It covers things both in the US and abroad. And if any government act might endanger a species, the secretary of the interior has to sign off on it (so all other agencies, then, are subject to the department of interior, and that's not a big hit with folks like pentagon and dept of state). SecDef and SecState want to do things like giving Egypt money to improve the Aswan dam, or decide some military issue, and they don't want to be subject to oversight in these matters.

  Years grind by before this gets heard. So Egypt comes looking for aid to improve their dam: well, this might lure them away from the Soviets, and prevent a mideast war. And those are nice goals. But putting that dam up affects the flow of the Nile (obviously). And the Nile Crockodile will find its habitat endangered, even though there are a lot of crockodiles.

  So the defenders of wildlife sue, because State has not gotten permission from Dept of Interior. If they get standing, the project can't go forward, so it can be stalled or killed.

  So Scalia writes the decision, taking the (at least rhetorical position) that standing is a serious barrier. Both of the "injured" folks here (Harry Hikers) are basically tourists. They saw some crockodiles, and wish to see them again.

  Scalia also says that standing is a constitutional doctrine, not a legal doctrine. But again the opinion preserves the opening: if you were a real zoologist, and not someone with just a tourist interest, you could get standing. So once again, we go on a hunt, this time for a zoologist. And once again, the holding is self-undermining.

18 September

• DeFunis
  This is a per curiam decision (means it is issued by the court as a whole, without disclosing who wrote it.

  DeFunis is caucasian, it seems, and is worried about the racially-based affirmative action program. The trial court agrees that the university is violating the Equal Protection clause, but the university appeals. Appellate court reverses, affirmed on appeal to the WA SC.

  Petitioning for cert asking SCOTUS to review a state supreme court's decision, incidentally, is a common way of getting to that venue.

  The law school may have been a little disingenuous on the mootness issue; likely they wanted the case to be heard. Law schools would generally just let a guy finish at that point, not make him re-apply.

  The mootness doctrine: the court should not hear a case unless it will make a pragmatic difference in the world. I.e., avoid abstract or ideological opinions: just give opinions on the facts of a case.

  Mootness, like other prudential doctrines, is two faced. It's a thing that the court can use when it pleases to get out of hearing a case. If they want to hear a case, on the other hand, they'll find a way to do it.

  So, is this case over? On the one hand, obviously yes. Whether he wins or not, he's likely to graduate. He's suing to be allowed to enter and (if he passes) graduate, and that's the way it is.

  On the other hand, there are reasons to think that the case isn't objectively over. After all, people still think it's important enough to keep spending money on it. What if DeFunis gets sick on his final exams and can't take them, and then has to come back again? The court never considers this. It's unlikely, of course. Or what if he fails, and goes before their retention committee? And DeFunis himself has his self-image at stake. If he doesn't deserve a spot in the class (vs. he has no right to be there, but just bullied his way in), his reputation is sort of at stake.

  And there will be other cases in the future, too, and these could be settled now.

  There's a WI case (from Property, perhaps Brown v. Southall Realty) regarding court costs surrounding an eviction: the court found the case not moot to cover court costs (about $5.70 in that particular case).

  So we need to look beyond the objective debate-- why should (or should not) the court address the issue in this case? The issue is affirmative action and admission to higher education. That is a big and controversial issue. The real question, then, is whether the court, in 1974, should say its answer to this matter now, or should it wait?

  Of course, it's a no-win situation: voting either way will alienate a lot of people, and politicize the court, because interest groups one way or another will clobber them. So they apt for putting it off.

  For the next 25 years, they pretty much say "cert denied" to affirmative action cases. Then they granted cert to a case where a white teacher was fired (equally qualified with a non-white teacher). So interested parties got scared: it looked like an easy case with a predictable outcome. They went to the teacher and asked what she'd take to go away and settle. $100,000. Done. SCOTUS then says "looks like it's moot, and we can't hear it." So, the tactic works.

  There are a few conflicting opinions from the court, suggesting that affirmative action is OK some of the time, and not other times. And in another 25 years, the court suggests it will no longer be needed. So perhaps it will be continues shadow-boxing until then.

  Definition of a prudential doctrine: the court can exercise discretion based on the individual case.

• Arizona English
  Lots of ingredients here.

  Suit in federal court. There were other suits in state court, but the state courts just dodged the issue, saying they'd wait until the feds made their decision. The Attorney General for AZ said this was a very mild measure. The governor opposed it and said it would not be enforced.

  Then the 9th circuit says "we want to hear this." The fact that nobody appeals it, etc., is fine. We'll just grant the interest group standing. So this is a strong judicial review moment, and seems to contradict the Sierra Club holding that you need an actual injured party. Then on top of that, the employee who originally filed the case quit. It seems moot, but there were $1 in nominal damages. So the court says that's not moot.

  Ripeness: there has to be an actual controversy. 9th Circuit is not interested in any doctrines that would keep them from hearing the case.

  SCOTUS takes cert. It doesn't say anything about the merits of the case-- it just says that this case shouldn't have been heard. We get ripeness, mootness, standing, and one other that I missed because he's talking fast today.

• There are other prudential doctrines that we're not dealing with:
  • Courts do not give advisory opinions. They only deal with actual cases. No abstract clarification of the law. Well in the Steel Seizure case, they do, and it turns out to be bad advice.
  • The court will not hear a political question. That's a constitutional limitation, says Sierra Club. This is slippery: every case is political in some way. What it really means is that if we don't want to hear a case for some reason, we can call it a political question and refuse to hear it. In 1962, the Warren court (expanding jurisdiction of SCOTUS overall) rules that districting laws are a political question; 2 years later they rule that all districts have to have the same population. Warren felt that his most important decision was that election law was not a political question.
  • The courts do not entertain friendly/collusive suits. If two folks create a suit just to get a constitutional matter clarified, they'll refuse to hear it.
• If a court doesn't want to give its opinion (modesty, caution, restraint, uncertainty), it has lots of options. It can defer to the legislature, for example, by following the plain meaning rule. It can hear the case, and declare the statutes constitutional (this happens 99.9% of the time). The same tactic works with administrative agencies: find that their procedures are fine. Under the common law, courts have the power to make law on their own (they are superceded by legislation, but they don't have to wait for the legislature). When they assert common law principles, they are duty bound to follow precedent. And, if it's a court with discretionary jurisdiction, you can deny cert without comment (this also happens in 99% of the cases).
• Why so many ways for courts to be modest? Because judicial review is controversial. There are lots of good things about it, but there are lots of ways for courts to resist the temptation.
• McCulloch
  A national bank today is a bank chartered by the federal government (vs. a state bank). There are lots of them; they're federally regulated (OCC); state banks by state banking commissions. They're privately owned, run, managed.

  The national bank in this case is owned (20%) by the federal government, and the other shares were widely dispersed. It was an attempt to regulate the economy by having a congress-controlled bank (we don't want a private person cornering the bank market).

  But McCulloch had a pretty crafty scheme: loaning people money from the bank in order to buy shares in the bank, in exchange for them signing over voting rights to their shares. And so a small cabal controlled the bank, and they loaned out tons of money and inflated the economy, and then the bubble burst. And there was embezzlement, but that wasn't its own crime then. He was indicted basically for being evil, but the jury said that wasn't a real crime.

  So this opinion is really very strong, considering how much McCulloch was hated.