Aug 11, 2023 Kristina NiedringhausLibrarianship and Legal Technology
Any law librarian who works with the public or teaches no- or low-cost legal research, or any attorney or law student using free resources to conduct research understands the wide gap in usability between fee-paid databases and most free, open-access legal resources. Focusing on statutory code research, Professor Darvil’s article, Increasing Access to Justice by Improving Usability of Statutory Code Websites, examines the need not just for access to statutory codes, but providing the information in a way that allows the user to find the law they need. Through the lens of website usability standards, Professor Darvil assesses state code websites and provides recommendations for how those websites can improve usability. Many states have created “Access to Justice” initiatives and commissions aiming to improve citizen access and experience with the legal system. Professor Darvil’s recommendations provide excellent guidance for those interested in improving the research experience and access to the law for everyone, including those without access to fee-based databases such as Lexis or Westlaw.
Inevitably, my legal research students are, at some point in the semester, treated to my soapbox speech about how equitable access to the legal system rests on the ability of any citizen, regardless of means, to access the law they are obligated to live under. If states care about access to justice issues, logically they must care about how they provide access to the law. Professor Darvil’s article provides an excellent discussion of the access to justice issues endemic in a legal system in which, particularly on the civil side, many litigants are self-represented and how those litigants are impacted, frequently negatively, by their inability to find the law.
The unique value of Professor Darvil’s article, however, is her assessment of the usability of state statutory websites and recommendations for improvement. Her evaluation of the state websites uses a standards-based approach. Nearly half the states and the District of Columbia have adopted the Uniform Electronic Legal Materials Act (UELMA), which seems a reasonable place to look for applicable standards. Unfortunately, as Professor Darvil notes, UELMA doesn’t address the usability of electronic legal materials. Lacking usability standards in UELMA, Professor Darvil turns instead to standards developed in the disciplines of human computer interaction (HCI) and user experience (UX). Experts in these fields explore how easily people can navigate a particular website interface and find what they are looking for. There are several sets of standards for assessing website usability and Professor Darvil uses the following standards from the U.S. Department of Health and Human Services (HHS).
Search Guidelines:
- Ensuring usable search results
- Designing search engines to search entire site or clearly communicate what part of the site is searched
- Making upper and lowercase search terms equivalent
- Designing search around user’s terms
Navigation Guidelines:
- Providing navigational options
- Differentiating and grouping navigation elements
- Offering a clickable list of contents
- Providing feedback on user’s location
(P. 133.)
Professor Darvil evaluates the statutory code websites of all 50 states and the District of Columbia hrough an exploration of the features available and some relatively simple searches for state laws and comparing the results to a 50-state survey. She then explains the results using multiple illustrative screenshots from a variety of state websites as well as appendices outlining the results for each guideline above in every jurisdiction.
Finally, Professor Darvil ends with recommendations for states seeking to improve their statutory code websites. These recommendations range from fairly basic to more complex. Suggestions for improving navigation include recommendations such as providing a table of contents, clickable search trails, and navigational buttons. Suggestions for improving searching are more complex and include items such as using a controlled vocabulary, providing context surrounding the search terms by indicating where the researcher is in the code, relevancy rankings, and instructions on how to best search. Professor Darvil points out that many of these recommendations are familiar to librarians and suggests that states should use librarians to help implement many of these suggestions.
This article provides a logical and thorough assessment of state statutory code websites, explains why usability matters for access to justice, and suggests ways that governments can improve usability. As she concludes, “Governments that are based on the rule of law have special duties to their citizens: transparency, accountability, and reasonable access to their laws. […] When state governments do so, they promote access to justice and the rule of law.” (P. 153.)
Jul 13, 2023 Bethany BergerNative Peoples Law
Debates over Founding Era constitutional understandings proliferate in scholarship and litigation. The understandings examined, however, are almost exclusively those of the white men who either drafted the constitution or could vote on its ratification. In We the (Native) People?, Professor Gregory Ablavsky and doctoral candidate Tanner Allread broaden this focus, uncovering what Indigenous people said and thought about the Constitution’s meaning. Like Mary Bilder’s recent article on the influence of Cherokee, Chickasaw, and Choctaw delegations’ visits to the constitutional convention in 1787, and earlier works by Robert Clinton, Maggie Blackhawk, and Ablavsky himself, the article confirms the influence of tribal actions on the Constitution and its interpretation. But in foregrounding Indigenous people’s perspectives, Ablavsky and Allread open a new window on those actions as well as on constitutional history and law.
The first contribution of the article is to identify pre-constitutional tribal-settler diplomacy as an important backdrop against which the Constitution was drafted and understood. As scholars like Robert Williams and Colin Calloway have shown, established rules, shaped by both Indigenous and English traditions, governed this diplomacy. These practices included both accepted rituals and norms of negotiation, reciprocity, and ongoing relationships that the English violated at their peril. Ablavsky and Allread dub this body of rules the “diplomatic constitution,” invoking the times’ definition of constitution as the practices, institutions, and discourses that disciplined governmental power. Influential founders, they show, like George Washington, Ben Franklin, James Madison, James Monroe, and Thomas Jefferson, would all have been familiar with this diplomatic constitution from their own experiences at negotiations with tribal nations.
Although the early documents of the fledgling United States seemed to continue these rules of diplomacy, white settlers, states, and loosely organized militias defied its precepts, refusing negotiation and clear channels of communication. In response, tribal leaders repeatedly invoked the diplomatic constitution and chided the federal government on its inability to control its subjects. As Chickasaw leaders informed Congress, “We are told that you are the head Chief of a grand Council which is above these Thirteen Councils…[I]f so, why have we not had talks from you? We are head Men and Chiefs and Warriors also, and I have always been accustomed to speak with great Chiefs and Warriors.” (P. 265.) At the time, federal officials were torn on whether to maintain the diplomatic constitution or to treat tribal nations as conquered peoples to whom no further concessions need be made. Tribal influence pushed these officials to restore existing norms.
Ablavsky and Allread also show that Native people were an important external audience for the U.S. Constitution. Federal actors had drafted the Constitution with tribal demands in mind, and “aggressively sold and promoted the new document to Native audiences as a restoration of the core principles of the diplomatic constitution.” (P. 269.) As officials informed the Muscogee, “Our Unions, which was a child, is grown up to manhood[]….One great council is established, with full powers to promote the public good,” and ensure “that justice shall be done to the nations of Indians….” Native leaders were congratulatory but pointed in their official responses. The Haudenosaunee observed that it had always been the custom of their confederacy to “have one Great Council fire kept Burning…and there to do all the public business which respected the five Nations in General,” while the Cherokee Nation complimented Congress on having “become strong,” but expressed its hope that “whatever is done hereafter by the great council will no more be destroyed and made small by any state.” (P. 273.)
Discussions between Indigenous observers were less hopeful. The Mohican sachem Hendrick Aupaumut accepted a federal commission to convince a confederacy of tribal nations that the new government would honor its promises and restrain its citizens. His audience, already suffering under unrestrained settler incursions, doubted his claims. Some tribal nations responded to violations of the diplomatic constitution by warring against those expropriating their land. Others invoked it to secure favorable treaties for their people. The United States violated the faith of the latter, demanding new land concessions and removal instead of preventing illegal settlement.
Ablavsky and Allread present the landmark Cherokee cases as a continuation of Indigenous assertions that the U.S. Constitution incorporated the diplomatic constitution. Even before appealing to the U.S. Supreme Court in Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832), Cherokee and Choctaw delegations made constitutional arguments in response to southern states’ claimed authority over their lands. Their testimonials asserted that the Constitution did not control tribal sovereignty, but their “treaties of relationship are based on the principles of the federal constitution.” The Commerce Clause prohibited states from interfering with those relationships, and those treaties were the “supreme law of the land.” When Congress and the Executive proved unresponsive, the Cherokee Nation brought its arguments to the Supreme Court.
And in Worcester v. Georgia, they succeeded. Chief Justice Marshall’s opinion affirmed tribal sovereignty, federal exclusive authority, and that state actions in violation of these principles were “repugnant to the Constitution, laws, and treaties of the United States.” President Jackson, of course, failed to enforce the decision, and the United States later forcibly removed the Cherokee people under a false treaty. And although Worcester v. Georgia powerfully sustained legal recognition of tribal sovereignty, over time federal law forcibly absorbed tribal governments within the constitutional order.
So how should this history influence our understanding of the Constitution today? Ablavsky and Allread offer their history as a general call for founding histories to look beyond the exclusive (white, male, propertied) group who could formally assent to its ratification. Native peoples, they show, were both an important audience for the Constitution and had an meaningful influence on its implementation. Further, they argue, the diplomatic constitution should be understood, like the works of William Blackstone, as part of the common law backdrop that informs constitutional meaning.
What light might the understandings of enslaved people, free people of color, or white women shed on constitutional meaning? Recovering understanding or influence would not mitigate the original exclusion or manufacture metaphorical consent. As Ablavsky and Allread show, Native nations refused consent and yet were incorporated anyway. But it would broaden the search for understanding and influence beyond the few whose claimed the power to consent on behalf of the many, and allow formally excluded people to claim their role as co-creators of constitutional law. And the results may be as illuminating as those We the (Native) People provide.
Editor’s note: For another review of this article, also published today, see Allison Brownell Tirres, Constitutional History in the Middle Ground and Beyond: Indigenous Perspectives, JOTWELL (July 12, 2023).
Cite as: Bethany Berger,
Expanding the Constitutional Lens, JOTWELL
(July 13, 2023) (reviewing Gregory Ablavsky & W. Tanner Allread,
We the (Native) People?: How Indigenous Peoples Debated the Constitution, 123
Colum. L. Rev. 243 (2023)),
https://lex.jotwell.com/expanding-the-constitutional-lens/.
Jun 29, 2023 Ezra RosserPoverty Law
Michelle Wilde Anderson’s The Fight to Save the Town: Reimagining Discarded America is worth reading for its optimistic approach to the challenges facing poor communities. Governments in such communities are often beset by significant legal and structural limitations that make it hard for them to provide even basic services to poor residents. With government programs related to poverty largely forced into retreat since the War on Poverty, the Affordable Care Act being the notable exception, it is easy for those who care about how the government responds to poverty to fall into despair. Poverty law offers little solace. The promise of Goldberg v. Kelly having long since faded, poverty law scholars are left searching for reasons for hope. The Fight to Save the Town provides glimmers of hope despite the legal and structural limitations facing struggling communities.
Anderson explains in the introduction that she aligns herself with the “‘call in,’ rather than ‘call out,’ tradition of social change,” (P. 31) which captures the book’s tone and approach. Portraits of community leaders and community organizations fighting back against urban decay and government decline form the heart of the book. But for all the heroism depicted in The Fight to Save the Town, readers are left—as they arguably should be—simultaneously inspired by the many examples of communities coming together and horrified by the fact that anti-government and anti-poor sentiment has been so effective in gutting these same communities for so long.
While some readers of the book will likely accuse it of being too optimistic—being so celebratory of minor wins that can only do so much in the face of major structural barriers—Anderson begins each community profile by explaining the roots of today’s citywide poverty in the four towns profiled. Anderson is not the first author working on local communities to structure a book in this way. William Julius Wilson and Richard P. Taub’s excellent work, There Goes the Neighborhood: Racial, Ethnic, and Class Tensions in Four Chicago Neighborhoods and Their Meaning for America (2006), for example, has a similar structure. What makes Anderson’s book stand out is her ability to show the commonalities across four cities and areas that initially seem so distinct. On the surface, Stockton, California; Josephine County, Oregon; Lawrence, Massachusetts; and Detroit, Michigan are quite different in terms of scale, economics, racial composition, and politics. Such differences, Anderson shows, matter–and shape everything from what the community values to what sort of work is needed to make improvements. But The Fight to Save the Town is as much about the people working to help others find jobs, ensure the public library stays open, or make an area safe again, as it is about the distinct places. Anderson’s book is both a portrait of ground-up activism and a portrait of communities hoping for a better future.
The themes tackled by The Fight to Save the Town are not easy ones and, Anderson is careful to note, are not the issues that impact all communities. Because each town has its own history and own struggles, the book is not a how-to manual for community activists. But Stockton, Josephine County, Lawrence, and Detroit are going through things that many struggling places are going through. Hit hard by deindustrialization and tax rebellions that leave local governments unable to collect enough revenue to fund basic services, residents see their livelihoods collapse—even as they find themselves unable to rely upon government services that, in earlier periods, were taken for granted. Mistrust of government is a common feeling in such places, whether the politics in the area lean blue or red. Community activists are forced to do the best that they can to improve things, whether that means building up networks outside of government or finding ways to convince taxpayers to agree to be taxed in order for the government to rebuild.
Before tackling the most challenging part of the book, it is worth pausing to give Anderson credit for being a very talented writer. The Fight to Save the Town flows beautifully. The town histories and the portraits of community activists and politicians are written in such a way that they draw the reader in, making one care about these places and people. Like most breakout books on poverty, Anderson’s choice to write a people-centered book allows her to connect with readers in a way that cannot be achieved through wonky policy-centered approaches.
It is also worth acknowledging that, for many readers, the hardest part of The Fight to Save the Town to deal with is likely Anderson’s relentless optimism. I suspect that all law faculties have colleagues whose modus operandi is to be positive. You see them in the hall, where every day is the best day ever, and in faculty meetings, where they think every idea is a great one, even if the issue really demands they take a stance. I cannot say that I hate such people, that is way too strong a claim. But, admittedly, they do annoy me. Let’s be realistic—some days suck and some choices are bad ones. Anderson can come off as too positive. Fortunately, she knows it and spends time in the introduction defending her choice to “celebrate and support a new generation of people-centered leadership.” (P. 32.) As Anderson observes, “eulogistic writing records memories of a place, as though it is already lost,” (P. 25) even though places that Anderson calls “discarded America” still are home to large numbers of poor people. And those poor people have agency, attachment to place, and hopes and dreams that should not be written off.
My view is that there is value in both the “call in” and the “call out” traditions of social change. There must be works such as Matthew Desmond’s Evicted: Poverty and Profit in the American City (2016) and Barbara Ehrenreich’s Nickel and Dimed: On (Not) Getting By in America (2001) that call out the gross inequalities that the country tolerates and the hardships that the poor endure. Such works speak to some readers and can force the upper and middle classes to recognize the humanity (and the suffering) of the poor. But, there is also a need for more optimistic takes. Works like this show readers that people living in poor places should be not only listened to, but that through their leadership and example are already providing a path forward for these struggling communities.
Jun 15, 2023 Juliet StumpfImmigration
Keeping secrets is so middle school.
When the secret is law, though, the problems mature and proliferate. Faiza Sayed’s The Immigration Shadow Docket uncovers a nest of secret law in the Board of Immigration Appeals (BIA)’s practice of deciding almost 100% of its cases as unpublished, nonprecedential decisions. These decisions are available to government lawyers but not to immigrants or their lawyers, and that makes steam come out of my head.
The BIA decides about 30,000 cases each year, but publishes only 30 of them. Those published decisions are authored either by three-member panels, or by the Board en banc, and they lay out the legal reasoning and findings of the Board. The few published decisions are accessible to the public and citable.
The remaining tens of thousands of decisions of immigration cases are issued by single members of the Board. Sayed calls this the “immigration shadow docket.” The vast majority are summary affirmances and orders, and they cannot be cited as precedent—at least, not by advocates for immigrants. In practice, however, government attorneys and immigration judges access them and cite them in briefs and decisions. Thus, the steam.
Sayed describes one gesture that the BIA has made towards public access to some unpublished decisions, which sounds like a law librarian’s nightmare. A sliver—less than 6%—of the unpublished decisions are publicly accessible. They’re accessible, that is, only to members of the public willing to travel to the room where they reside (in hard copy only) in Falls Church, Virginia. Once there, the visitor discovers that the decisions are organized solely by month and year. There is no index nor topical filing system. As Sayed notes, “The only way to find decisions on a particular topic was to leaf through them, one by one.” (P. 911.) One imagines her there, leafing metronomically, sharing a table with bleary-eyed immigration lawyers with beards down to their toes.
Electronic versions of unpublished decisions reside on the internal BIA case database and some other immigration court locations where government counsel and immigration judges can find them. Although FOIA litigation has resulted in a settlement allowing for staggered disclosure of certain past and future unpublished decisions, many categories remain undisclosed and individual FOIA requests are often denied. Because of the inequality in access to Board decisions, the government and the adjudicator can tap into the secret law while it remains hidden from the public. The unpublished decisions are not minor procedural issues or ministerial decisions. They are adjudications of whether an individual may stay or must go. They are determinations that impact the future of individuals and families. At that volume, they are decisions about who will compose our communities.
Other courts, most famously the Supreme Court, also have shadow dockets—categories of orders, affirmances, and denials that are non-precedential but impact a significant volume of cases. These shadow dockets have been the subject of critique and efforts at reform. Sayed describes these in the article and relies on some of them in her suggestions for BIA reform.
But the BIA’s practice takes the shadow docket to a new height. In contrast to publication practices of the Supreme Court and federal appellate courts, almost 100% of the BIA’s decisions are on the shadow docket. The difference between the federal courts’ shadow dockets and the BIA’s body of secret law is that nearly all of the Board’s decisions are unpublished, and the federal courts have responded to critique by enacting reforms.
Having a secret body of immigration law calls into question the legitimacy of the immigration adjudication system. The article brings to light the existence of inconsistent outcomes in cases that should have the same result, such as two cases that determined both that a specific organization was a terrorist group and that it was not, resulting in a removal determination for one non-citizen but not the other. Sayed also points out that the nature of the shadow docket encourages “low-quality opinions that are thinly reasoned or lack reasoning entirely” and “error-prone decision-making.” (P. 920.)
Sayed’s long list of concerns about the existence of the shadow docket is compelling. She notes the high stakes of BIA decisions when removal orders mean banishment from the United States. Because of the severe restrictions on federal court review and jurisdiction, the BIA is essentially the Supreme Court for most immigration cases. Lack of a right to appointed counsel, among other barriers, means that the odds are stacked against the indigent non-citizen in immigration court. Even with counsel, how well can an attorney represent a client when the law is inaccessible to her? How is the public to comply with the law, or advocate for changes in law, if the law itself is secret?
But her larger point is the takeaway here. Secret immigration law stunts the development of immigration law itself. The Board is tasked with providing guidance about the meaning of immigration law and effecting uniformity in immigration law nationally. This is an impossible task when only 30 of those 30,000 decisions are published. As Sayed concludes: “shadow docket decision-making defies important principles of administrative governance, including notice, justification, coherence, and procedural fairness, and undermines political accountability and judicial review.” (P. 898.)
May 16, 2023 Caprice RobertsRemedies
Katherine Mims Crocker,
Constitutional Rights, Remedies & Transsubstantivity, 110
Va. L. Rev. __(forthcoming 2024), available at
SSRN.
Faith in judicial decision-making is waning to say the least. Intense skepticism and criticism reign the day. Charges of unbridled power grabs abound, whether one decries the erosion of stare decisis or applauds perceived course corrections in constitutional law and remedies. All recognize victories may be fleeting as we increasingly unmoor from judicial norms and doctrines of restraint. Perceptions of more overt partisanship and consequential decision-making do not uplift the role of Article III judges or align with judicial independence. Is all hope lost? If one wishes to understand and improve the judiciary, Professor Katherine Mims Crocker’s article, Constitutional Rights, Remedies & Transsubstantivity, is for you.
Professor Crocker argues that federal courts should provide comparable options for securing remedies for discrete constitutional wrongs. The promotion of generality and neutrality to foster consistent application across distinct substantive areas is part of the transsubstantivity paradigm. The article’s focus is constitutional remedies—specifically, doctrines for preventing or punishing encroachments of constitutional rights or, when proper, remedies effectuating constitutional rights. And this moment in history poses an ideal opportunity to recenter on the transsubstantivity paradigm given its apolitical nature.
Judicial vacillation on constitutional rights and remedies is destabilizing. It is anxiety- inducing. Crucial remedies are no longer available. Inconsistency exists on whether and the extent remedies are available for gun rights, abortion rights, and religious rights. The public’s constitutional priorities show deep division across the country, and recent Supreme Court rulings deepen the divide. Though the modern Court trend is relatively consistent in narrowing access to and the extent of remedies for most constitutional rights (except Free Exercise claims), the Court is inconsistent in treatment of remedial doctrines in constitutional rights cases. Professor Crocker’s article is necessary because it provides systematic scholarly criticism and recommendations for enhanced consideration of transsubstantivity for constitutional remedies.
To improve performance and perception of the federal judiciary, Professor Crocker provides a descriptive framework and normative lessons for enhancing the judiciary’s approach to remedial transsubstantivity. The article offers rich definitional aids as well as a novel framework to classify various instances of non-transsubstantivity. As a fresh descriptive analysis, for example, Professor Crocker shows that existing judicial reasoning on remedies principles is sometimes transparent, but other times, “translucent” only shedding partial light without details or “opaque” only providing cloudy and questionable rationales. (Pp. 22 & 29.) Whether translucent or opaque, courts are failing to sufficiently acknowledge and explain doctrinal inconsistencies in constitutional remedies. Normatively, the article shows how increased transparency of judicial reasons for departure in all constitutional-remedies cases will improve judicial craft and enhance accountability. Assessing judicial analysis occurs both at the time of the opinion and to future applications. Courts and critics will evaluate the soundness of the justifications for departure. Professor Crocker also contributes value with concrete examples throughout the work. Notably, this article does not promote one interpretive methodology over any other. Rather, according to Professor Crocker all conventional methods allow for “generality and neutrality” in constitutional remedies doctrines where reasonable minds may disagree on the best interpretative method to resolve questions not clearly answered by existing law. (P. 39.) Consistency, with room for reasoned deviation, is the name of the game. Specifically, the article advances consistency in the approach and availability of remedies in constitutional cases.
The emphasis on consistency is not intended as a rigid stricture. Here, Professor Crocker maintains that we are wise to examine the extent to which federal courts do and should offer similar opportunities for securing relief for violations of constitutional rights. The article provides examples showing how the Supreme Court has departed from the transsubstantivity paradigm in constitutional remedies cases. For example, Professor Crocker analyzes indeterminate remedial standards including the political question doctrine for justiciability and the plan-of-the Convention doctrine in state sovereign immunity cases. From Baker v. Carr to Rucho v. Common Cause and from Hans v. Louisiana to Central Virginia Community College v. Katz and many more cases, Professor Crocker shows the Court’s missteps in using indeterminate tests. Overall, Professor Crocker delivers in-depth analysis of inconsistencies and faulty logic. The article’s insightful commentary advances the scholarly dialogue. And deeper theoretical and doctrinal treatments of remedies law like Professor Crocker’s work warrant serious attention.
A key justification for the transsubstantivity paradigm is that greater overarching principles across remedies issues would reduce politics and the perception of playing favorites in constitutional decisions. Even where variation of doctrines is preferable or necessary, greater transparency in judicial reasons for any departure will aid judicial, public, and scholarly debate on the validity of judicial approaches and reasoning. In a more normative stance, Professor Crocker presents recommendations with the goal of a providing increased ability to debate and assess judicial legitimacy. All proposals include emphasis on viewing transsubstantivity in constitutional remedies decision-making as vital, though not absolute.
Professor Crocker offers four specific suggestions for how courts could improve their approach to constitutional remedies, with special focus on the Supreme Court: (1) enhance attention to “transsubstantivity in the constitutional-remedies context by spotlighting occasions for adherence and emphasizing the importance of explaining departures,” (2) increasing transparency where lacking by having judges explain any disconnect between a doctrine’s rationale and the method of application (the “range”), (3) decreasing overdetermination, which is where judges provide multiple lines of reasoning that are sometimes unnecessary and unjustified, and (4) reconsidering foundations where the Supreme Court makes context-specific distinctions and exceptions. (Pp. 39, 42, 45, 48.) Each of the four improvements is worth serious dialogue and, at least the first two, worth immediate adoption.
For the first point, enhancing attention to transsubstantivity in the constitutional-remedies context, Professor Crocker showcases instances for adherence to remedial doctrines, but also defends certain instance of deviation. Variation may make sense where warranted and well-explained. Professor Crocker explains that, in the wake of cases like Dobbs v. Jackson Women’s Health Organization, now is an ideal moment for increased attention on transsubstantivity given its apolitical nature. Further, Professor Crocker compares Professor Zach Price’s article advancing a theory of symmetric constitutionalism to show how the transsubstantivity doctrine for constitutional remedies can align with the ends sought with symmetrically constitutional rights, but not the preferred means. For example, if indeterminacy remains, Professor Price suggests consideration of partisan consequences whereas Professor Crocker prefers inclusion of political considerations only as an output rather than an input of the presumption of remedial transsubstantivity.
The second point aims to enhance judicial candor and democratic accountability. Here, Professor Crocker identifies Miranda v. Arizona, as an example of helpful transparency about non-transsubstantive decision-making. The justiciability analysis in Los Angeles v. Lyons, is illustrative of insufficient clarity of analysis as it failed to adequately distinguish relevant doctrines. Two specific failings, for example, are that the Court never mentioned the plaintiff was Black or that most who had died from police chokeholds were Black. With more complete explanation, courts could better grapple with application of these remedial doctrines in future cases.
For her third normative recommendation, Professor Crocker critiques the judicial method of giving multiple rationales, which places transsubstantivity at risk. To be sure, a court providing several reasons can be a good thing. It is transparent, which is good. Providing multiple reasons may show the court took litigants’ arguments seriously and may also help on appeal as alternative bases for upholding the ruling where one justification fails. Accordingly, Professor Crocker focuses on negative consequences that can occur where overdetermination includes unnecessary reasons. As a quintessential example, the article provides the special-solicitude rationale in Massachusetts v. EPA, because the rationale is unclear and unnecessary. In fact, three other doctrines justify the opinion: proprietary standing, sovereign standing, and quasi-sovereign standing. Another example provided is the unnecessary ticking-time bomb language in Grutter v. Bollinger, in which the Court indicated that in 25 years, racial preferences shouldn’t be necessary. If the Court’s statement amounts an expiration date, then the doctrine at issue is non-transsubstantive rather than a principle that should endure.
Last, the article suggests reconsidering, though not necessarily rejecting, foundational doctrines that become less transsubstantive due to excessive exceptions and debatable distinctions. This subsection focuses on cases like Seminole Tribe of Florida v. Florida, where the Court triggered a revolution in sovereign immunity jurisprudence by concluding that Congress cannot abrogate state sovereign immunity via Article I authority. The reasoning was opaque yet repeated by the Court as canonical until recently when the Court began whittling away at it. This pattern may make Seminole Tribe ripe for reconsideration.
This is not a time to surrender on core principles such as expecting judges to provide clear rationales for departures from doctrines and precedent. It’s a time to double down on meaningful principles. A time to refocus, reexamine, and reassert ideals. No doubt, “transsubstantive decision-making about constitutional remedies seems less and less common but more and more crucial.” (P. 50.) We must continue to debate proper judicial decision-making and reach for ideals that will enhance judicial reasoning. If the federal judiciary listens to Professor Crocker, it will do a better job of applying consistent approaches to constitutional remedies across types of constitutional rights. As Professor Crocker notes, “Courts, and especially the Supreme Court, can do better.” (P. 4.) Then perception and reality will align to bolster the legitimacy of the federal judiciary and, vitally, restore faith in the Supreme Court.
Apr 12, 2023 Jaya Ramji-NogalesImmigration
Scholarly examinations of sanctuary for immigrants tend to focus on destination states in the Global North, where the concept implicates support for the immediate needs of immigrants in a specific location—such as a church, or throughout a city—and in some cases policy advocacy efforts. Few scholars writing in the Global North have explored how this concept translates to the Global South, where most migration and transit occurs, and where a substantial amount of work is happening to support migrants despite the more profound costs to those residing in countries with more limited resources. Alexandra Délano Alonso offers the reader a shift in the epistemology of migration, taking us to locations in the Global South where this work is taking place. In Sanctuary in Countries of Origin: A Transnational Perspectives, she investigates the concept of sanctuary through a case study of her home country of Mexico, determining that the term is an uneasy fit and that the practice of sanctuary is more transformative in the Mexican context.
Délano begins with an examination of historical sanctuary practices in Mexico, noting that, much like in the United States, the main actors have been migrant shelters, churches, and community organizations, but that Mexicans are more likely to use the terms hospitality, shelter, and welcome to describe the support offered to migrants. Given that the Spanish definition of sanctuary tends to focus narrowly on religious spaces, she questions its political power in popular discourse. Délano also asks the key question about sanctuary that Mexicans raised in response to the Central American caravans in 2018, namely, whether sanctuary can exist in a location that is unsafe and under-resourced even for locals. She also explores the complexity and contradiction in the political discourse around these caravans, noting an about-face between governments, from a discourse of hospitality for asylum seekers to the assertion just a few months later that Mexico is not a sanctuary or a “country of open doors” by the administration of Andrés Manuel López Obrador.
The article offers three case studies to explore the discourse and practice of the sanctuary in Mexico. It begins with a description of Mexico City’s efforts, in conjunction with cities such as Chicago and Los Angeles, to respond to returning citizens and resist the anti-immigrant actions of the Trump administration by labeling itself a sanctuary city. Délano explains that the term sanctuary was not politically effective in this setting and that Mexico City eventually relabeled itself, becoming instead a city of hospitality and human mobility.
The article next explores the richest of the three case studies, namely the migrant shelters in Mexico that seek to offer hospitality with dignity. This approach, which includes basic needs such as food and shelter, is distinguishable from sanctuary as practiced in the Global North in that it views “integration as a process of liberation and mutual recognition.” (P. 91.) In other words, dialogue around the structural discrimination, violence, and poverty that affect both locals and migrants is baked into the hospitality process. The goal of this practice is to create political consciousness, enabling migrants to leave behind the status of victim and instead become “protagonists of their own liberation.” (P. 91.) Sanctuary thus becomes encounter and solidarity leading to mutual transformation rather than a practice of citizens bestowing charity upon migrants.
The final case study examines post-deportation sanctuary. Like the first case study, this is an interesting application of the concept to citizens who require assistance to successfully reintegrate into their native country. Délano describes the stigma that attaches to deportees and explains the role that community organizations play in offering support for their immediate as well as medium and long-term needs. She labels these practices “holistic accompaniment”; in addition to food and clothing upon arrival, the groups help to find employment, offer mental and emotional health care, and create community spaces. This is a much longer-term approach than government services that are provided only at arrival. Similar to the migrant shelters described in the prior case study, groups such as Otros Dreams en Acción engage in the praxis of mutual aid, solidarity, and advocacy to dismantle a range of inequalities–economic, social, and political inequality–that harm not only returnees but also their communities. The actors in this final case study were more comfortable deploying the concept of sanctuary, likely because of the time they had spent in the United States.
This thoughtful article looks to the Global South to offer a “more dynamic, self-critical, expansive, and transformative practice of sanctuary.” (P. 95.) In Mexico, we can see practices of hospitality and solidarity that aim to create new forms of community that can alter systems in ways that improve the well-being of migrants and locals alike. Stepping away from the framework of sanctuary in the United States (in which citizens offer aid and non-citizens are victims and recipients of assistance) a turn to the Global South as a site of knowledge production enables a more radical approach that offers the promise of emancipating all of us, citizens and non-citizens alike.
Mar 5, 2023 Steve GoldEnvironmental Law
“It’s obvious” is one of the all-time putdowns of a paper at a workshop. But like many putdowns, this one comes with a ready-made riposte: “If it’s so obvious,” the author might ask, “why hasn’t anyone said it before?”
Dave Owen willingly invites this exchange in the opening of The Negotiable Implementation of Environmental Law. The article begins with a hypothetical factory-siting scenario that to “many practicing environmental lawyers…would sound routine.” (P. 3.) What makes this familiar scenario interesting? The fact that negotiation helps define at least some of the legal obligations imposed by each of numerous implicated facets of environmental law. That fact, Owen persuasively argues, is under-appreciated in environmental law teaching, scholarship–and reform proposals.
In a broad yet specific survey of canonical environmental statutes, Owen describes the central role negotiation plays. He identifies statutory provisions that permit or encourage negotiation (such as CERCLA’s detailed provisions for Superfund remedial action agreements) as well as statutory gaps that might be filled by regulatory edict but leave room for possible negotiation (such as the Endangered Species Act’s requirement that an acceptable habitat conservation plan be included in incidental take permits). But he goes beyond the letter of the law to explain how negotiation affects environmental law in practice. For this, Owen relies heavily on snippets taken from 42 interviews with a range of environmental law practitioners. The interview methodology adds considerable credence to Owen’s description. Because the interviews are so important to his thesis, it is a bit frustrating, though understandable, that they are anonymous and labeled only with generic descriptions of the interviewees’ jobs. Nevertheless, the quotes from the interviews ring true, at least to this former government attorney.
The central role of negotiation, Owen argues, is absent from or misunderstood by two opposing critiques of the main body of federal environmental law. He labels these the “command and control” critique and the “slippage” critique.
Owen’s piece is at its zestful best when he uses the centrality of negotiation to take down major portions of the “command and control” critique–the familiar argument that environmental law is excessively rigid, directive and (therefore) inefficient. The pervasiveness of negotiation in implementing environmental law, Owen shows, provides opportunities for much of the flexibility and tailoring that are touted advantages of replacing existing federal regulatory frameworks with privately-operated, market-driven, or less-centralized ones.
Yet, Owen notes, the same view that environmental law mandates are fundamentally inflexible underlies the “slippage” critique, which sees rigidity and directiveness as features, not bugs. “Slippage” argues that when environmental regulators negotiate, they have only one direction to go: down from the strict requirements of the letter of the law. But this misses what Owen calls the “constitutive role” of negotiation in defining “what compliance is” rather than allowing deviation from compliance obligations. (Pp. 4-5.) Sometimes, Owen contends, negotiation produces better environmental protection than…whatever the alternative is.
Owen is careful not to over-claim. He does not contend that exponents of the command and control critique or the slippage critique entirely ignore the existence of negotiation in implementing environmental law. Rather, he convincingly argues that both critiques underestimate the role of, and undercount the benefits of, negotiation in environmental law.
Nor does Owen contend that these critiques are entirely wrong; he merely insists that they should engage with the implementation of environmental law as it exists rather than as it is modeled (or caricatured). By failing to do so, the command and control critique overstates the flaws of existing environmental law and the benefits of reform proposals the critics support. The slippage critique, for its part, understates the beneficial role of negotiation and consequently misses opportunities for improving environmental law implementation by enhancing regulators’ performance in negotiation.
Owen’s sympathy for the slippage critics’ goals, if not their prescriptions, shines through his suggestions for improvements negotiating implementation of environmental law. These suggestions aim primarily at making the government or “pro-environment” side of negotiations work better. Owen suggests that the role of negotiation in regulatory decision-making should be made more transparent; that the responsible government staff should be trained to be more effective negotiators; and that the negotiation process should be made more equitable for interested parties with fewer resources, such as community groups and smaller regulated entities. These ideas are not developed in any detail, but they raise many implementation questions.
For example, it is understandable, that Owen would argue that regulators should be clear with the public and the regulated community about “what they are willing to negotiate, what they are not willing to negotiate, [and] what general goals the agency seeks to achieve in its negotiations.” (Pp. 49-50.) Transparency is a generally accepted norm for government action. But an elementary principle of effective negotiating is that in a negotiation, information is power. To be transparent in a way that is more than uselessly generic but less than strategically destructive is no easy feat. Owen acknowledges that confidentiality may be important in negotiations, but he only begins to suggest how agencies can walk that tightrope.
Similarly, it is easy to suggest that resources be allocated to making government negotiators more effective and to bolster the equitable participation of disadvantaged communities and small businesses in the negotiation process. No doubt, as Owen suggests, formal training in negotiation would help some government officials achieve better outcomes (even while reducing frustration among others at the negotiating table). But this proposal hardly would alleviate the general lack of resources in environmental agencies that Owen also documents, or the policy- and politics- driven directions and limits imposed from above on many government negotiators. As to increasing equity in environmental law negotiations, resources surely are necessary, but it is hard to know if they will be sufficient. Technical Assistance Grants and Community Advisory Groups in Superfund are perhaps the best-known efforts to provide such resources. The literature is full of laudatory references to them, but includes little analysis of how well they have worked or how scalable they may be.
To say that we need to know more about Owen’s proposals for improvement, however, is not to criticize his article but to praise it for one of its great strengths: identifying future research needs. Owen’s compelling demonstration of the centrality of negotiation to environmental law invites study of how, and how well, those negotiations work. Consider CERCLA, the statute Owen holds up as exceptionally explicit about negotiation. The statute, the National Contingency Plan, and reams of guidance documents seem to say what is not negotiable, what is, and to what ends. But in nearly two decades working on Superfund cases, I saw things negotiated that were not negotiable and negotiable things that were not. Perhaps idiosyncratic, site-specific considerations drove those results. But perhaps there are patterns that could be uncovered through systematic assessment. The same is true of every piece of environmental law in Owen’s opening hypothetical.
As Owen himself stresses, a deeper dive into any aspect of the negotiable implementation of environmental law will be hard. He shows that negotiation’s role is often evanescent; it is the epigenetic factors that control the expression of statutory and regulatory DNA code. Sequencing DNA is much easier than figuring out how gene expression is controlled, but we really can’t understand biology without doing both. Owen reminds us that to understand environmental law, we have to understand how it is negotiated.
“This Article should not be novel,” Dave Owen wrote. (P. 49.) But it is, it is.
Feb 2, 2023 Eli NachmanyLegislation
A couple of decades ago, Oakland Athletics general manager Billy Beane revolutionized baseball. In constructing the Athletics’ roster of players, Beane employed analytics and data to exploit market gaps in the Major League Baseball labor economy—an innovative strategy. It worked. In 2002, Beane’s Athletics won over 63% of their games and easily made the playoffs on a shoestring budget. Michael Lewis’s book Moneyball—which later became a movie—chronicles the 2002 Oakland Athletics season as a triumph of empirical analysis in baseball. But when other teams jumped into the fray, attempting to reorient their rosters entirely through analytics, many found limited success. The key insight to be gleaned from Moneyball is that analytics has a place in roster construction; at the same time, the last twenty years of baseball show that analytics are not everything.
In Testing Textualism’s “Ordinary Meaning”, Professor Tara Leigh Grove resists the empiricists’ takeover of a wholly different sport: interpretation of statutory text. Professor Grove begins her piece by noting that “[s]cholarship on statutory interpretation has taken an empirical turn.” In particular, scholars have employed empirical methods—e.g., surveys—to ascertain “ordinary meaning.” For these commentators, “ordinary meaning” is an empirical fact, “thereby justifying efforts to test textualism.” (Textualism is a theory of statutory interpretation, popularized by Justice Antonin Scalia, by which jurists interpret statutes according to the statutes’ “ordinary meaning.”) But in Professor Grove’s telling, “ordinary meaning” is also a legal concept that raises normative questions about law interpretation.
Amid a rush of empirical scholarship on textualism, Professor Grove takes up the mantle of law. The initial introduction of empirics into the practice of textualism was like Billy Beane’s initial success with the Moneyball-driven Athletics: a revolutionary innovation that changed the way we think about the enterprise of statutory interpretation. But a singular focus on empirical analysis obscures the true nature of the search for ordinary meaning, as Professor Grove ably demonstrates in her excellent Foreword to the George Washington Law Review’s Annual Review of Administrative Law. Without a recognition that “ordinary meaning” is a legal concept, one cannot properly ascertain what a law’s “ordinary meaning” actually is.
Professor Grove’s piece begins by explaining what she means when stating that “ordinary meaning” is a legal concept. In the first section, she contrasts “ordinary” and “technical” meaning. For example, although the “ordinary meaning” of the term “standing” to a lay reader might be the opposite of “sitting,” a well-trained lawyer will recognize that the term refers “to one requirement for launching a suit in federal court.” In some cases, courts will take the words of a statute in their ordinary sense; in others, they will read words in their technical sense. To make this determination, a court must “address certain legal questions,” including (1) which sources are relevant to determining the meaning of the text and (2) how the structure of the surrounding statute informs the inquiry.
Here, Professor Grove allows that the search for ordinary meaning has an empirical component. Ignoring this reality would be like signing a free agent baseball player without even glancing at his prior statistics. But as Professor Grove explains, “when legal disputes arise, a good deal of the search for ‘ordinary meaning’ will depend on legal considerations.” For this reason, textualists “adopt legal rules to choose which ordinary meaning is preferable,” with many prominent scholars and jurists emphasizing “the understanding of the objectively reasonable person.” Professor Grove notes the divides within the textualist movement about the content of these legal rules (a subject she has explored in other scholarship). Notwithstanding these divides, Professor Grove points out that textualists generally all treat “ordinary meaning” as a legal, normative—not empirical—inquiry.
Part II of Professor Grove’s piece lays out how some scholars have called this approach into question. These scholars’ method of determining “ordinary meaning” is to “identify empirically the use of a term or phrase that is the most common or popular.” One way to accomplish this task is a survey of the broader public. Professor Grove contends that such reliance on empirical methods is misguided for at least two reasons.
First, the “[s]cholarship that relies on survey methods appears to assume that the ‘ordinary meaning’ of a statutory provision depends on the views of the general public.” But when it comes to highly technical statutes that are aimed at federal agencies and regulated parties, that assumption may not hold true. Rather, Professor Grove submits that when one treats “ordinary meaning” as a legal concept, “the hypothetical reasonable reader can be adjusted to comport with the statute at issue.”
Second, the shift to empiricism risks conflating the modern era with the relevant interpretive timeframe. As Professor Grove asks: “how can one determine by surveying the public in 2022 the meaning of a statute enacted in, say, 1871, 1920, or 1964?” The nature of empirical work introduces what Professor Grove calls a “temporal complication” into the method’s workability when searching for “ordinary meaning.”
In Part III, Professor Grove notes the implications of her thesis. To start, textualists have some serious disputes to resolve about which legal tools should be used to discern ordinary meaning. Moreover, “[i]f ordinary meaning is a legal concept,” jurists may need to be more cautious when using “homey examples” (like Justice Scalia’s analogy of “using a cane” to “using a firearm” in his Smith v. United States dissent)—a frequent practice. Furthermore, Professor Grove acknowledges that her work raises some questions about “fair notice”—“itself a legal concept,” as she points out.
Without question, the empiricist turn in the statutory interpretation scholarship has deepened our understanding of how to ascertain “ordinary meaning.” Professor Grove merely warns against overreliance on empiricism in statutory interpretation, just as any modern baseball executive would caution against an overreliance on analytics in building a baseball roster. In describing “ordinary meaning” as a legal concept, Professor Grove refocuses statutory interpretation on the legal and normative issues it necessarily raises. Her piece is worth a read.
Dec 15, 2022 Jill FamilyImmigration
An immigration lawyer’s work is rarely easy. The outcomes are high stakes, and the statutes are complex and harsh. The law is unstable because immigration law relies heavily on shifting agency memos. Backlogs and case completion times seem only to multiply. Clients understandably are on edge, and lawyers try to help them comprehend a maddening system. Immigration law is a challenging practice area, no matter who occupies the White House. During the Trump administration, however, the executive branch made things especially difficult as it focused its power on grinding the system to a halt.
In the midst of the Trump administration, asylum lawyers participated in a survey administered by Professors Lindsay Harris and Hillary Mellinger. Harris and Mellinger’s main finding is high levels of burnout and secondary traumatic stress among the asylum attorneys who responded to the survey. These attorneys scored higher, meaning more burnout, than social workers, hospital doctors, nurses, prison wardens, and immigration judges. In Asylum Attorney Burnout and Secondary Trauma, Harris and Mellinger report their methods and findings, and make recommendations for alleviating the status quo.
Harris and Mellinger used two established tools. They administered the Copenhagen Burnout Inventory and the Secondary Traumatic Stress Scale to survey participants. Additionally, they asked their own demographic questions and a free response question (“Is there anything else you would like to share about the challenges of your job as an immigration/asylum attorney?”). Since Harris and Mellinger’s study relied on self-selected, volunteer participants—and is not based on a random sample—it shares the same potential for selection bias as any similar survey. The authors are careful to remind us that their results reflect the responses of those who participated and cannot be generalized to all asylum attorneys. Nevertheless, over 700 respondents to the survey were included in the authors’ analysis, which signals that these asylum lawyers were struggling and is an indication that others might be struggling as well.
The mean personal burnout score for the asylum lawyers in the survey was 65.12. The closer the score is to 100, the higher the level of burnout. Personal burnout measures physical and psychological fatigue and exhaustion. For social workers, it was 38.8 and for prison wardens, it was 33 (in previous applications of the same survey not conducted by Harris and Mellinger). The mean work burnout score for the asylum attorneys was 63.6, which is higher than social workers (35.8) and prison wardens (32.6). Work burnout measures physical and psychological fatigue and exhaustion as related to work. The mean client burnout score was 44.75, which also is higher than other groups, but not as dramatically. Client burnout measures physical and psychological fatigue and exhaustion as related to work with clients.
The mean secondary traumatic stress score for the asylum attorneys was 2.95. The closer the score is to 5, the higher the level of secondary traumatic stress. The stress scale asks questions about intrusive thoughts (e.g., thinking about clients outside of work involuntarily), avoidance (i.e., procrastination), and arousal (e.g., being short-tempered).
In addition to discovering burnout and stress scores, Harris and Mellinger collected demographic data. The respondents’ self-reports indicated that they are overwhelming female and white. The authors’ regression findings show that female respondents were associated with higher levels of burnout and stress. Regarding race, the authors’ findings are uncertain, given the small number of respondents of color. However, the authors found that of the survey participants of color, there were higher levels of burnout. The authors recommend further research here. The authors also found that solo practitioners were associated with higher levels of burnout and stress, and that having support staff and lower caseloads are associated with lower levels of burnout and stress. There are also findings in the article related to age, hours worked, geographic location of practice, and timing of survey completion (pre or post-pandemic).
As Harris and Mellinger explain, asylum practice is difficult because it inherently involves trauma. Lawyers must shepherd trauma victims through a bureaucratic system that requires asylum applicants to retell their trauma multiple times. There is pressure to relate to trauma perfectly. Because asylum applications usually are not well documented, due to the nature of the claim—the applicant usually was on the run to seek safety—the law tells adjudicators to base their decision on the applicant’s credibility. Adjudicators make credibility determinations based on the consistency of the applicant’s retelling (even if research shows that this is difficult for trauma victims). Lawyers are exposed multiple times to each client’s trauma. This exposure occurs within a system that is stingy with success. Lawyers are constantly pushing the boulder up the hill, fighting to help their clients in a system poised to say no. The system is designed to make pursuit of a case difficult, seems never to work as it should, and, at times, views immigration lawyers as distasteful because they advocate for their clients.
The Trump administration introduced new elements that made representing asylum applicants even more challenging. For example, the Trump administration restricted access to asylum adjudication by forcing asylum applicants to remain in dangerous conditions in Mexico until their hearing date. Additionally, the Trump administration used its power over the immigration agencies to change agency interpretations of asylum law to narrow its availability. Due to these efforts, Harris and Mellinger explain that asylum attorneys not only represent clients but also must take “regular action to try to protect the very institution of asylum.”
The authors present suggestions for improvement. Recognizing that asylum applicants with legal representation have a higher chance for success, the authors make their case that the fairness of the system depends on keeping asylum attorneys practicing and healthy. The authors not only recommend tools to help attorneys exist within the system, but also recommend a major change to the system itself.
For attorneys, the authors argue that self-care and “responsible trauma stewardship” is ethically required. According to the authors, law schools must teach this and provide future lawyers with the tools necessary to be attuned to mental health. Employers must continue these educational efforts, as well as experiment with reducing and diversifying caseloads and providing access to mental health counseling. As far as systemic change, the authors recommend the creation of a more independent adjudication system. The authors would move immigration adjudicators out from under the political control of the Executive Branch.
The authors recognize that their work is the beginning of a conversation and that their research does not answer all questions about the mental well-being of asylum attorneys. Because this study is the first of its kind, it does not measure whether attorneys were worse off under the Trump administration. It does, however, provide us with information about how these 700 asylum attorneys fared during the Trump administration, and the attorneys are not “alright.” The responses to the survey’s free-form question included this one:
I have decided to quit law altogether. It’s impossible to deal with the financial crush of serving a low-income population AND cope with the secondary trauma. I’ve lost my appetite for the law altogether after this shit show area of law. I have no faith in justice or the law anymore.
Harris and Mellinger deserve kudos for identifying a problem and starting the conversation on how to turn things around.
Nov 21, 2022 Marco JimenezRemedies
In a recent essay, Preliminary Damages, Professor Gideon Parchomovsky and Justice Alex Stein have not only come up with a creative way to help indigent and/or poorly-financed plaintiffs finance their lawsuits against intransigent and deep-pocketed defendants, but in the process, they have plugged an important philosophical gap in the remedies literature by proposing the novel remedy of “preliminary damages,” a legal remedy mirroring its equitable counterpart “preliminary injunctions.” There is a lot in this essay that should be of particular interest to Remedies scholars. This Jot cannot do justice to their piece in so short a space, but I hope to offer the reader at least a small taste of this delicious article, which may entice some readers to sit down and enjoy the full course.
In short, their argument is as follows: it is a mere historical accident that courts of equity, whose primary form of relief was the injunction, and courts of law, whose primary form of relief was money damages, grew up independently. However, as these two courts have long since been merged in most states, there is no good reason for a court today to offer one type of remedy (i.e., preliminary injunctions) that happens to have developed in a court of equity while failing to offer its legal counterpart (i.e., preliminary damages). Or, as the authors ask in their article, “If courts can award plaintiffs preliminary injunctions before the conclusion of a trial, why can’t they award preliminary damages? Or, contrariwise, if no damages can be awarded until liability is found, how is it that preliminary injunctions can be granted?” (P. 242.) The answer, to be sure, is purely historical, and by bringing this new form of damages to the attention of judges and scholars, they hope to not only correct this historical anomaly, but to make it easier for indigent plaintiffs to overcome the sometimes nefarious tactics of sophisticated defendants whose deep pockets, intransigence, and policy of “deny, delay, defend,” (P. 256) rather than the strength of their defense, keeps many legal wrongs from being righted by our courts.
Another strength of their article is that, rather than confining their proposal to the purely theoretical, they offer several real-world examples where courts have, in fact, awarded something akin to preliminary damages, as with interim payments for personal injuries for tort victims in the United Kingdom (P. 243) or preliminary money awards in divorce cases in the United States. (P. 244.) Although these examples admittedly make up a small portion of a court’s remedial offerings, they at least illustrate that preliminary damages are possible, and that judges ought to at least consider awarding them in appropriate circumstances.
Which brings us to the following question: what, exactly, are the circumstances in which an indigent or poorly financed plaintiff should get preliminary damages? According to the authors, preliminary damages should be awarded to help poor plaintiffs finance legitimate lawsuits against much better funded defendants. Preliminary damages should be awarded whenever the plaintiff is able to show (1) likelihood of success on the merits, (2) irreparable harm (if such damages are denied), (3) a balance of equities tipping in their favor, and (4) that such an award is consistent with the public interest. (P. 262.) Remedies scholars will immediately recognize that these are the same four factors that the Supreme Court requires a plaintiff to prove to obtain a preliminary injunction, but one wonders whether preliminary damages aren’t sufficiently different from preliminary injunctions so as to justify their own test.
For instance, one of the risks courts will face should they award preliminary damages to indigent plaintiffs is that, as with preliminary injunctions, the court might get it wrong and erroneously grant preliminary damages to a plaintiff that subsequently loses its case on the merits. If plaintiffs only need demonstrate a “likelihood of success on the merits,” or a greater than 50% chance of prevailing on their underlying claim against defendant, there will be many false positives (i.e., erroneously awarded preliminary damages). Because the plaintiffs are indigent, those wrongly-awarded preliminary damages will, in all probability, never be repaid to the defendant, even though the court has found the defendant free of liability. An equitable court easily solves this problem by requiring the plaintiff to post an injunction bond making it liable for any irreparable damages caused to defendants via a court’s erroneous grant. However, the authors do not require such a bond in cases of preliminary damages and, in any case, requiring one would prevent many indigent plaintiffs from bringing their suits in the first place, which would defeat the goal of the authors’ proposal. Similarly, at another point, the authors “propose that preliminary damages be capped at forty percent of the total damages sought by the plaintiff,” (P. 267) but this number seems arbitrary and is nowhere supported in their otherwise excellent essay. Finally, the authors are primarily concerned with, and therefore seem to confine their proposal to, indigent plaintiffs seeking preliminary damages, but the authors’ own theoretical justification for preliminary damages suggests that these damages should be available whenever awarding them makes sense (i.e., wherever doing so could prevent irreparable harm to the plaintiff).
But these are minor quibbles. Professor Parchomovsky and Justice Stein have made an important contribution to the literature that should be of interest not only to Remedies scholars, but to judges and litigants alike. I will surely find ways of working the contributions of this article into my own Remedies course and cannot recommend their essay highly enough.
