Legal Process

5 October

• Constitutional law is obviously about institutional choice. Even if you view it as instructions from the text of the constitution, then what it's really saying is that the courts can invalidate laws (i.e., the courts, or the constitution itself will substitute for the political process).
• Remember that the there's a heck of a lot of zero-scrutiny, just because of the capacity of the courts. Either cases never get there (dynamics of litigation: not worth filing because of low stakes) or the court won't step in).
• Look at the passage from the NJ constitution that the NJ SC hangs Mt. Laurel I on (top of p. 55). If you can't find something in there that would allow you to review ANY piece of legislation in there, you're not looking hard enough. Of course, that's not going to get you cert granted: the courts know that if they get onto a path that gets them too many cases, they'll need to reverse themselves and go back.
• Relative limitations on decision makers:

  Political Process	Courts
  Minoritarian bias: requires a passive or dormant majority (e.g., high participation costs). Majoritarian bias: requires an active majority, and a discrete, insular, immutable minority (in order to have a reliable disproportionate impact) Outside bias: protectionism, basically	Dynamics of litigation (some people or types of claims are better represented than others) Scale is a major limiting factor Competence: ability and background of judges and juries, and the capabilities of the adversarial process

• So we looked at Carolene Products, Footnote 4. That foreshadows a large amount of constitutional law.

  ¶ 3: majoritarian bias (historically: religion, national origin, race). Note the citations to McCulloch v. Maryland and South Carolina v. Barnwell Bros.. That's another kind of bias: bias against outsiders (benefits are internal and the costs are external): a political subdivision like a state can't make decisions that affect the whole nation. That's the nature of the dormant commerce clause.

  One of the major reasons of moving from the articles of confederation to our current constitution was the existence of tarrif barriers between the states. In dormant commerce clause cases, the courts step in where congress hasn't acted.

  But this is slippery: trade protection laws can't really be classified as saying that they benefit everyone in the state and penalize outsiders. There are losers inside the "protected" state: the consumers. The laws only protect producers in the state-- this form of outsider bias is therefore really a kind of minoritarian bias.

• And we looked at Fasano. That and Mt. Laurel are both zoning cases. In Fasano the court sees minoritarian bias: developers are over-represented because they are high-stakes players, and therefore motivated to exercise their influence. In Mt. Laurel, it's the other way around: the developed properties are over-represented, and they're quashing other types of development.
• If you assume that a balancing of cost and benefits gets you to the right outcome, note that majoritarian or minoritarian bias might still get you to the same outcome some of the time (i.e., when the influential body is in the right). So just knowing that the there's a severe bias doesn't mean that you know the decision is wrong.
• Thus Korematsu
  This is an extraordinarily obvious case of majoritarian bias. There are enormous burdens in this case that are going to fall on a racial and national minority. And there's an active majority as well: they're well aware of amorphous threats, and they know that whatever benefits of this law there might be will accrue to them, and the costs will accrue to those of Japanese ancestry.

  Maybe other minorities might be uncomfortable with this, but they are still minorities, not the majority. So if there's any benefit at all, the majority will think it's worthwhile. Serious political malfunction.

  This case is the first announcement of an important equal protection test: suspect categories get strict scrutiny. And it's the only case in which the suspect category loses.

  So what's the problem? It's not scale: nothing announced here would bring in huge numbers of other cases. It's not the dynamics of litigation: there's motivation for the minority to litigate. It's the competence of the court-- they say they're employing strict scrutiny, but pretty much accept the government's word.

  Of course, looking back, the government appears to have been disingenuous about the threat. But the court could not penetrate what the government was putting forward.

  The dissents are interesting: Murphy points out that there were other ways to handle this. Jackson basically says that the court can't tell what's going on with issues of national security (they don't have the expertise, and can't obtain the information: the adversarial process operates by exposing information in open court, and that can't happen here-- the government just asserts that there's secret evidence). In general, if the government can come up with a national security argument on any issue, they will use it, because it drives the courts back from serious judicial review.

  The outcome in this case is a balancing of severe distrust of the political bias, and severe distrust of the court's ability to do better.

• If you can show the court that it's going to have to make extremely difficult decisions over and over on a case by case basis, that will tend to make them less attracted to being the decider in your case.
• Mount Laurel I
  The court has basically three avenues under which to review this:
  1. The US Constitution
  2. The State Constitution
  3. The "Enabling Act" of the legislature
  How do localities get the power to zone? The legislature passes an enabling act. The language of each of these is broad enough to support a claim. The court chooses the NJ Const, which is what the plaintiffs would want: it gives the NG SC the final say. This too is an instance of deciding who will control.

  Think of this in terms of inside and outside interests. Who is being harmed? People who don't get to live in cheaper Mt. Laurel housing, and jurisdictions who have to absorb those populations. Who represents them on the "inside" of this situation? Owners of undeveloped land: they are like the people harmed by a tarrif, although in this case they are relatively few-- this is an instance of majoritarian bias. Anyway, it's in their economic interests to sell denser housing.

  Serious judicial review needs to look at both the ends and the means of the decision that it's replacing.

  Here, the plaintiffs allege that the zoning legislation excludes people on the basis of race. To figure this out, they look at the fact of the impact (in US constitutional law, Washington v. Davis says that the measure of a violation of equal protection is the intent of the legislation; under the civil rights laws, the measure is impact). Anyway, the court says that there is a disproportionate impact on race and poverty.

  First, we get a fiscal argument. Now, generally, tax revenue will increas if you take restrictions off of land, rather than on. But here, the concern is demand for services: sure, we'll be lowering total tax revenue, but the main worry here is that the cost of schools will skyrocket (because we'd get a sudden increase in the density of children). Of course, the majority always trots out ecological concerns (sewerage and water), but that's standard in any zoning case.

  Most zoning is "cumulative" (i.e., you can build the most objectionable thing the law allows, and anything less objectionable). Here we see zoning for industry only. And, of course, zoning for relatively large-lot single-family homes. There are the Planned Unit Developments that allow condos, but those are single-bedroom only, and no children under 18 in apartments for seniors, etc.

  So the court says that gaming the zoning system to minimize tax burdens and maximize benefits is not a valid reason. The Fasano court tailored its review based on whether the zoning was administrative or legislative. And administrative determinations have do give at least minimal procedural due process.

  Procedural due process is a device that's good for combating minoritarian bias. It can wake the dormant majority by giving notice and holding hearings. It's not so much help with majoritarian bias: the process isn't going to change the majority's mind, and the vote will be the same.

• To get a court to review a law, you want to convince the court that there's something seriously wrong in the political process, and the court would be able to handle the problem.
• What determines whether we'll have minoritarian bias or majoritarian bias?

  An active majority always beats an active minority. You only get minoritarian bias when you have a dormant majority. The dynamics of participation determine this (i.e., when will people participate? when will they represent themselves). This is a function of the costs and benefits of participating.

  The more difficult it is to understand the issue, and the process for effectuating your position (even just knowing how to vote can be hard, and voting is easy), the less likely you will be to participate. Those are costs of participation: getting that information.

  What are the benefits of participation? Well, if you're in the majority, you're tempted to free-ride (participation isn't by the group, it's by individuals). Low per-capita gains fail to justify much participation. Generally, those with low stakes in the game pay less attention to what is going on.

  In local zoning, the majority has relatively high stakes: it's the value of their house that's at issue, and their property taxes. And at the local level, more information is available (you know your property taxes, and the fact that they're tied to local schools), the process is more accessible and comprehensible (you can go to local government meetings).

  The federalists (i.e., those who favored ratification of the constitution) were more worried about majoritarian bias than minoritarian (hence empowering the federal government as a decision-maker). Anti-federalists were just the opposite (and thus opposed a concentration of power in the government).

  In this light, Fasano might have it wrong, by the way: there might not be any good reason to think that the majority is dormant or overwhelmed. In fact, there's reason to think it's the other way around: the majority has much at stake, and this is a local issue.

• Be able to:
  1. Spot the bias in a situation
  2. Figure out how to persuade a court they can handle it better
• Cleburne
  Local zoning again, but this is under the federal constitution, not the state one.

  The formula:

  If Suspect Class or Fundamental Right, then Strict Scrutiny (is there a compelling state interest, and a closely tailored means)

  If there's a Quasi-Suspect Class, then Heightened Scrutiny (gender, illegitimacy)

  Otherwise, minimal scrutiny (legitimate state goal, rational relation)

  At trial, the law was found to be valid. The classification ("feebleminded") was common in zoning law-- goes all the way back to Euclid, the first zoning case, by the way.

  Anyway, this isn't on the list of suspect categories. But lawyering is about adding things to lists like that. This also isn't a fundamental right, even though the court says it's really crucial. Fundamental rights are not things like personal safety, housing, food, education, health; fundamental rights are things like right to travel, appellate transcript, privacy (well, reproductive privacy anyway; in a way all laws impinge on privacy). How come those things are fundamental rights, and not the others? Because if they are fundamental rights, then they become the job of the court.

  OK, well that explains why some stuff is off the list, but why is other stuff on it? Probably the balance of political malfunction and the competence of the courts.

  Anyway, phrases like "fundamental rights" are amorphous. That means work the formula backwards: if we want strict scrutiny, these must be fundamental.

  OK, so the circuit court reverses, saying that mental retardation is a quasi-suspect category.

  SCOTUS affirms the reversal, but says it's not quasi-suspect. This gets minimal scrutiny and it's still invalid. That's odd; they say they're using minimal scrutiny, but they're not really.

  So look at the decision: where is political malfunction discussed, and where is the court's capability discussed?

  • Next week: Cleburne and Mount Laurel II. In the latter, what were the problems facing the implementation of the ruling, and how did the remedies offered work against them?