Tuesday, July 19, 2011

Roberts' Ill-Informed Attack on Legal Scholarship

      Richard Nagareda was a well loved professor at Vanderbilt University Law School, a nationally recognized expert on class action lawsuits, and a thoughtful and highly accessible source for journalists until his untimely death last October at age 47.
      Nagareda achieved a measure of posthumous influence, however, in the Supreme Court’s decision this past term to kill the giant sex discrimination class action against Wal-Mart. In his opinion for the 5-4 majority in Wal-Mart Stores, Inc. v. Dukes, Justice Antonin Scalia cited one of Nagareda’s final publications to deliver the fatal blow.
      “Any competently crafted class complaint literally raises ‘common’ questions,” Nagareda wrote in “Class Certification in the Age of Aggregate Proof,” 84 N.Y.U. L.Rev. 97 (2009). “What matters to class certification,” he continued, “is not the raising of common ‘questions’ . . . but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.”
      Scalia used Nagareda’s point to show that the potential class members in the Wal-Mart suit had too many “dissimilarities” to bundle their claims into a single class action. Nagareda’s scholarship was important enough for Justice Ruth Bader Ginsburg, in her dissenting opinion, to mine one of his earlier articles to argue for allowing the suit.
      As former law professors, Scalia and Ginsburg naturally appreciate legal scholarship. Both wrote a few law review articles themselves in earlier days, and both cited law review articles in other opinions during the past term. So did the other former law professors on the court — Anthony M. Kennedy, Stephen G. Breyer, and Elena Kagan — as well as the non-scholars Clarence Thomas and Samuel A. Alito Jr.
      But not Chief Justice John G. Roberts Jr. In his eight majority opinions and three dissents, I spotted not a single citation to a law review article. The omission is apparently not coincidental. Roberts, it seems, has a low opinion of legal scholarship.
      The normally circumspect Roberts unloaded on law professors in answering a question at the recent conference of federal judges in the Fourth Circuit. “Pick up a copy of any law review that you see,” Roberts said, “and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
      Roberts’ comment at the June 25 session stirred a vigorous on-line debate. Sherrilyn Ifill, a law professor at the University of Maryland, took strong exception in a July 1 post on the legal blog Concurring Opinions. “More often than not,” Ifill wrote, “law scholars today are deeply engaged with helping legal decisionmakers grapple with difficult legal issues. Our scholarship – if read – can be very helpful to judges and their clerks as they navigate the shoals of complex legal decisionmaking.”
      Ifill made her point with specifics. She cited recent law review articles on such questions as the applicability of the Fourth Amendment to GPS surveillance, the reliability of eyewitness identification, and the increased use of alternative dispute resolution. She noted that the D.C. Circuit cited the GPS article in its decision requiring a search warrant for GPS tracking. The Supreme Court has agreed to decide the issue in a separate case next term.
      Among more than a dozen commenters, some agreed with Roberts and some with Ifill. Commenters had the same range of opinion after a July 8 post on the Adjunct Law Prof Blog. But several commenters on both blogs suggested that both Roberts and Ifill were misunderstanding the role of scholarship. “I've never heard anyone criticize [Stephen] Hawking's work because it doesn't help them when they want to fix their car,” one commenter said.
      Jonathan Adler, a conservative professor a Case Western Reserve University Law School, agrees. “There’s some truth in what Chief Justice Robert says,” Adler remarks, “but it’s a mistake to say that the only legitimate purpose of legal scholarship is to inform courts on decisions.”
      Lurking in some of the comments is an additional, political controversy: the view of legal academia as dominated by liberal, socially activist professors more interested in causes than in law. “I just wish the law schools would return to teaching the basics of reading the law,” an 80-year-old retired lawyer commented.
      Whether or not Roberts holds that view, Ifill matches the conservatives’ stereotype of an activist academic: an alumna of the NAACP Legal Defense Fund whose courses include a seminar on “Reparations, Reconciliation and Restorative Justice.” Conservatives might also dismiss the articles she cites as ideologically liberal. But the authors explored in concrete situations how to give effect to provisions of the Bill of Rights that are honored by conservatives and liberals alike. The growing number of conservative legal academics do the same.
      So did Nagareda. When I interviewed him in 2008 for my report “High-Impact Litigation,” he was admirably evenhanded in describing the importance of and the problems with the present-day civil litigation system. Roberts, on the other hand, was neither evenhanded nor even well informed in his comments. After blithely dissing legal scholarship, the chief justice acknowledged that he would be hard pressed to recall the title of the last law review article he read.
      Postscript: An empirical study by two professors, Lee Petherbridge of Loyola Law School in Los Angeles and David L. Schwartz of Chicago-Kent College of Law, finds that the Court has cited law review articles in roughly one-third of its decisions over the past 60 years. The study, "An Empirical Assessment of the Supreme Court's Use of Legal Scholarship," currently in draft, can be found here.

Monday, July 4, 2011

Roberts Court's Topsy-Turvy Disconnect With Real World

      It takes three years of law school to think like a lawyer, but one can grow out of it. The Supreme Court’s conservative majority, however, seems stuck in a law school mode of elevating legal form over practical substance, rules over logic. The results, in several decisions in the court’s just-concluded term, may make sense in a law school classroom, but not in the real world.
      No decision better illustrates the conservatives’ disconnect with the real world than the ruling that ended the term by striking down a critical provision in Arizona’s public campaign financing system. The Citizens Clean Elections Act, approved by voters in 1998 in the wake of rampant bribe-taking among state legislators, sought to minimize the corrupting effect of money on politics by providing public funds for candidates in state races.
      Authors of the ballot measure understood that candidates had to choose to participate in public financing — and accept the limits on overall spending — but might not if they feared being outspent by a privately funded opponent. To avoid that result, the law gave the publicly financed candidate additional matching funds — up to double the original grant — based on the opponent’s spending.
      The Supreme Court, in 1976, had upheld public campaign financing as part of the post-Watergate reform act. But the Roberts Court, in its June 27 ruling, Arizona Free Enterprise Club v. Bennett, decided that Arizona’s matching-grant provision could not stand because it violated the First Amendment rights of privately financed candidates.
      Writing for the bloc of five conservatives, Chief Justice John G. Roberts Jr. reasoned that the Arizona law penalized privately financed candidates for exercising their right to spend and raise funds for their candidacies. The law also violated the rights of independent groups, Roberts said, because independent spending in support of the privately funded candidate counted in triggering the matching grant for publicly financed contenders.
      Roberts had a plausible point in regard to independent groups, and it would have been possible to hold only that part of the law unconstitutional. But he is unrealistic in thinking that privately financed candidates might hold back on spending or fund-raising to cap the publicly funded opponent’s spending is unrealistic.
      In the real world, candidates raise and spend all the money they can get. Roberts pointed to isolated testimony in the record that some privately funded candidates in Arizona had held back on spending over the past decade. But, as Justice Elena Kagan noted in her dissent, the lower courts that looked at the same testimony were unpersuaded.
      Roberts was also divorced from reality in assessing the overall effect of the law. The measure had to be struck down, the chief justice wrote, because it “inhibit[ed] robust and wide-open political debate.” Kagan countered by noting that the law actually “subsidizes and so produces more political speech.” “Except in a world gone topsy-turvy,” she wrote, “additional campaign speech and electoral competition is not a First Amendment injury.”
      The court went topsy-turvy in other decisions in its final weeks. In PLIVA, Inc. v. Mensing, the same conservative-liberal split produced a 5-4 decision [June 23] holding that generic drug manufacturers are exempt from state law requiring adequate warning labels. Two years earlier, the court had held that federal law does not preempt state consumer protection laws in suits against brand-name drug makers. But Justice Clarence Thomas said that state law had to give way in generic drug cases because the Food and Drug Administration requires labels on generic drugs to be identical to those on brand-name equivalents.
      Thomas acknowledged that the ruling “makes little sense” to the plaintiffs who developed a serious neurological disorder from unwarned prolonged use of the drug at issue. But he said that generic drug manufacturers had no choice: it was “impossible” to comply with both state and federal requirements. In fact, as Justice Sonia Sotomayor pointed out in dissent, the drug-makers could have asked the FDA for permission to revise their warnings based on new information about dangerous side effects. They did not try.
      Earlier, the court had also defied real-world experience in rejecting a suit by out-of-luck investors against one of the Janus family of mutual funds. In Janus Capital Group, Inc. v. First Derivative Traders [June 13], the court said the investors could not sue Janus Capital Management, the mutual fund’s investment adviser, for misleading statements in the fund’s prospectus that it helped prepare.
      For the majority, Thomas said the misleading statements were “made” by the mutual fund, not by the investment adviser. In the real world, investors in a mutual fund rely in part on the fund’s investment adviser. And, as Justice Stephen G. Breyer said for the four liberal dissenters, nothing in logic or language prevented the court from holding that both the fund and the investment adviser were involved in making the misleading statements.
      As the justices left for their summer recess, several observers noted that the term’s decisions reflected a seeming agenda by the Roberts Court to tear down campaign finance regulations and cut back on civil litigation. To reach those results in these cases, however, the court had to look at the law in the abstract instead of in its real-world application. “The life of the law,” Justice Oliver Wendell Holmes Jr. famously wrote, “has not been logic; it has been experience.” The court’s conservatives could do well to take Holmes’ wisdom to heart.