Legal Process

12 October

• Cleburne
  Plaintiffs here go and look at the law. In general, if you're attacking something at the federal level, and it doesn't fall under 1A or criminal procedure, you're probably looking at the Equal Protection clause. The law in that area contains the familiar levels of scrutiny:
  • If Suspect Category or Fundamental Right, then Strict Scrutiny
  • If quasi-Suspect Category, then Heightened Scrutiny
  • All other classes, then Minimal Scrutiny
  The class of the "mentally retarded" is not on the list of suspect categories or fundamental rights. Housing for them is very important, but it's not a fundamental right.

  So one temptation, as their lawyer, would be to say: hey, there's no point in litigating this-- the defendants know they're going to get minimal scrutiny. We had better not pin our hopes on the notion that this law is so bad as to fail rational basis scrutiny, because in reality, minimal scrutiny equals zero scrutiny.

  But articulations of the law are never true law (i.e., they're never complete representations of what will happen in future cases). A judge can say they're giving minimal scrutiny, but actually give some scrutiny. We're trying to get minimal scrutiny plus; we know it exists because gender got it in the olden days before it became a quasi-suspect category. And really, we don't care what the court is calling what they're doing-- what we want is the level of scrutiny we need to get the law invalidated.

  Comparative institutional analysis is the decision by the courts of whether or not to exercise judicial review. We want to show that there's a reason to distrust the political process: this is local zoning with an active majority, so we can do that.

  The various rationales trotted out to support the law are basically masks for NIMBY. Even if the probability of property values falling is small, if the majority doesn't have to worry about the cost of avoiding that risk, they will avoid it. And here we have what appears to be a safe target.

  They're pretty much discrete and insular and immutable, but at the same time, people with mental disabilities might show up in any family, so it's not as tightly focused as some. Still, they're a relatively safe target-- we have the conditions for imposing a disproportionate loss on the minority. And we need to make the court see that: show them a history of bad treatment by the government (of course, it's not 100% bad), show that they're politically powerless (and note that many of these people may be from outside the jurisdiction). That's a foot in the door.

  Next we need to identify the pros and (especially) the cons of judicial review. It's not enough merely to identify the bias: the court needs to figure out whether an unbiased process would do differently. The city argues that it's a relevant classification (and if that's the case, the court can't give a sweeping solution and just dispense with it), and it's used both positively and negatively (so if judicial review goes wrong, it might strike down laws that would have aided the group). The city is attacking the competence of the court: you don't know and won't know when you'll make costly mistakes. That's a watered-down version of the government's argument in Korematsu.

  Scale, also: any time you open up the list of categories, you get the floodgates argument-- next it will be the physically disabled, the elderly, the mentally ill, and so on.

  So the court says it's minimal scrutiny, but that's not what they do. And we know this because of the outcome. The government makes the honest argument that they're concerned about the strong negative reaction of the neighbors. And then safety, health, and protection. And that tactic always works on minimal scrutiny. Nevermind that the government is arguing about the purpose of the statute after the fact, and the legislative intent can't really be divined.

  The fact that the court bothers to hear the arguments that there are mentally challenged kids in the school or that the aged and invalids would be equally endangered by floods is indicative that there's more than minimal scrutiny. At the minimal scrutiny level, the government can solve problems in any order they choose, so those arguments would work. Likewise the the problem of legal responsibility: under real minimal scrutiny, the government is entitled to believe pretty much anything.

  Real minimal scrutiny is the court throwing up its hands and letting the government do what it wants. Here, the court is persuaded by the plaintiffs' arguments, so they want to take action. And they're creating a secret-quasi-suspect category in order to do it.

  Note that there were conferences between the parties early on: if you can show your opponent that there are factors here that might interest the court (and justify proceeding to trial), that's a powerful negotiating tool. Likewise, when you think your options are foreclosed in court, you need to advise your client where to head next. In this case, the state government (not the local one-- they're too much of a minority to prevail there). And they did; there was actually a law passed saying that small group homes had to be granted permits while this case was pending. So there are hints that this could have been solved in the political process (though not the local political process). Anyway, as lawyers, we need to know when to tell clients whether it's worth proceeding or not-- that's the best we can do.

  Note that lawyers and judges determine the meaning of the constitution: categories and levels of scrutiny aren't explicit in the Equal Protection clause-- those things got made in court.

  Once again: at the margin, whether or not something is a suspect category or a fundamental right is the product of whether or not judicial review makes sense. These are likely to be close calls (else we wouldn't be litigating).

• In lots of areas (other than constitutional law), these various factors are implicit, not explicit. We can infer their presence by the way things turn out, and knowing about them helps us organize what we see.
• Mount Laurel II
  So the plaintiffs in Mt. Laurel I won the battle, but lost the war. Litigation is dragging out, there are tons of experts and depositions and interlocutory appeals. The municipalities are doing little symbolic things: they re-zone bogs, e.g., then wait for the plaintiffs to catch them on it, and then when they're in court, they argue that it's a sensitive environmental area, or a historic district, or whatever. And plaintiffs see varying results-- courts vacillating on what's a "developing" area, and what is "fair share" and so on. And the named plaintiffs are running out of resources.

  So again, we can show there's plenty of reason to distrust the political process. And they can throw in the fact that the courts are not being respected-- defendants are violating the spirit of the law.

  Which brings us back to the pros and cons of judicial review:

  • Competence of the courts:
    • Parcels of land aren't fungible - courts are going to have to decide where development is suitable.
    • Need for consistency and the cultivation of expertise (so 1 judge per area of NJ-- total of 3 areas). This will cut down on variation between rulings, and also forum-shopping.
    • Court appointed experts, but also masters (on-site experts on the matter of land use)
    • A "trusty buddy" in the political process: the SDGP wasn't made in cooperation with the court, but it exists, and it defines regions, projected amounts of development, etc., so we might as well use it. But it's going to be out-dated, and it needs to be revised, but the revision will take place within the political process, and so it will be targeted. Maybe we can't rely on this in the long run, but we can use it to get started)
  • Scale: burden on the court.
  • The clearer the rules are, the less litigation there will be.
  • Raising the costs for non-compliant cities (by allocating the fees for experts to them, e.g.) will make litigation less appealing.
  • Decreasing the use of interlocutory appeals, controlling the amount of discovery.
  • Dynamics of litigation: who litigates, and how hard?
  • Builder's remedy to give builders incentive to litigate: if a builder challenges an ordinance, and is successful, There's a conflict of interest here-- the builders like higher density, but they want to build higher income housing. So there could be collaboration between jurisdictions and builders before litigation even begins.

  And remember the paradox: the more severe the political malfunction (and also the complexity of the area), the greater the taxation on the courts, and the more ability for litigants to introduce delay.

  This is an attempt by the courts to replace a broken regulatory process with a court-created regulatory process. It is very expensive, and it is prone to mistakes. The court knows this-- but it has decided that the in the race between a malfunctioning political process, and a malformed court-made process, they've got more confidence in what they've got control over.

  Not too much later, a state agency is created to handle the issue of problems spilling over between competing jurisdictions. Some housing did get created under Mt. Laurel II, but the courts got strained, and there were some perverse results. There actually was a Mt. Laurel II, and it more or less ratified the state agency as being constitutional. Why? We don't know for sure, but they may just have wanted to end the strain.

• VA Board of Pharmacy
  A great exam question. Great lawyering questions.

  The state of the law at the start of the case:

  • 1A: commercial speech is not protected (so therefore minimal scrutiny, because there's no basis for suspect classification or fundamental rights)
  • In cases where the courts have struck down controls on advertising, it has been in the service of fundamental rights or suspect categories: abortion, gender discrimination. So these happen to be speech, but the political malfunction in question is tied to other sensitive areas, not dealing with commercial speech qua commercial speech.

  Lee Optical: the sellers of glass fixing were not allowed to advertize. Because of "professionalism."

  So, is there political malfunction here? There's minoritarian bias. It's the government controlling a major instrument of competition: price is a very nice piece of information. The government is nursing a cartel here. So the fact that the pharmacists are "controlled" by this regulation is secondary to the fact that they're all in an implied conspiracy to operate as a monopoly.

  A cartel drives the price up: more profit is made on every item sold. The biggest fear is that someone outside the cartel will come to the market (attracted by the unusually high profit), or someone inside the cartel will cheat. So we enlist the government to control the cartel: they regulate against undermining the cartel. Classic minoritarian bias.

  Now look at Carolene Products or Stevens's concurrence in Cleburne: this is supposed to be stuff that the court rubber-stamps. But there is an impact on consumers, and it has a regressive effect-- it affects the poor and those on fixed incomes disproportionately.

  So as lawyers, we're looking for outbreaks of direct judicial review of minoritarian bias. Dukes. And another case from IL involving a law saying something like companies of a certain financial category can't be involved in check cashing, other than AMEX. That leads to a rush of anti-minoritarian-bias suits, because plaintiffs suddenly see a chance to attack special-interest legislation, but then the courts retreat, in order to preserve their resources to deal with other things.

  In this respect consitutional law is cyclic.

  Anyway, what are the pros and cons?

  Well, there's the scale problem that we just described. There's way more crappy legislation than we have court time.

  And there's competence. How much to courts want to meddle in commercial regulation? As plaintiffs, we need to show that this isn't about all commercial regulation-- it's just commercial regulation involving advertising.

  A standard 1A case is the government suppressing information that is embarrassing to the government. The 1A issue here is scoping how much regulation involving minoritarian bias the courts are going to have to review. Everybody knows that there's political malfunction here, but we need the courts to take it up. And the government argues that this doesn't have any of the trappings of the standard 1A issue.

  The political malfunction here is that a dormant majority is getting screwed. Pointing that out won't get you into court: taxpayers and consumers are always getting screwed. And speech isn't really the core issue here, it's the screweing. We just cast it as a speech issue in order to limit things so the court doesn't get slammed.

  Back to competence. There are times when the government is allowed to regulate price speech in the name of professionalism: doctors and lawyers. The court wants to take a bite at issues where the public is getting shafted, but it needs to do so cautiously.

  So if you're attacking a minoritarian bias law, you need to find a category to control what else will come in. We saw this in Fasano: the administrative/legislative distinction. EXAM TIP: be sure to offer the court a way to constrain the collateral suits that will spring up when they grant review to your issue.

• A bit of torts. Helling is the first case we'll read. There's a basic underlying substantive question in torts: safety. The Hand formula (Carroll Towing) : B < P * L. Is the cost less than the benefit, in other words. And for us, the question is who decides whether it's less or not.

  Helling is a "custom" question. That's like looking to see what the fox is doing as a measure of how to protect the chickens.

  Remember, the reason we have tort liability is that the public gets the benefits of safety measures, but doesn't bear the costs, and those who bear the costs don't get the benefits. So they have an incentive to minimize.

  Key questions:

  1. When is custom relevant (meaning that the jury gets to hear it)? (medical malpractice)
  2. When is custom determinative (i.e., it substitutes for the jury altogether)? (in medical malpractice, if the plaintiff can't show that what the physician did deviated from the custom in that area of specialization, the case is dismissed)

  Helling is a microcosm of comparative institutional analysis in tort law, but also comparative institutional analysis in general.