Archive for April, 2004

Just another manic Monday

Monday, April 26th, 2004

Sports fans, I am sorry to announce that BTQ will be quiet for the next day or two. Milbarge is out of town until Tuesday and I am under the gun at work. There will likely be no new posts until Wednesday. In the mean time, feel free to use the comments link on this post to let us know which topics you would most like to see discussed in future posts.

The Rule Regarding Unpublished Opinions Is A Wolf In Sheep’s Clothing

Monday, April 19th, 2004

I have been meaning to say a few more words about unpublished opinions, but have been way too busy lately. Once again, however, I have been rewarded for my laziness: someone else said it better than I could, so I can just link instead of blog!

I have previously discussed unpublished opinions and the proposed amendment to the Federal Rules of Appellate Procedure that would allow citation to them. You can go there for most of my thoughts on the matter, the primary one being that I am against citation to unpublished opinions because I write a lot of them. (Cue Dirty Harry: “A man’s got to know his limitations.”)

Howard Bashman noted here and here and here news that the Advisory Committee approved the rule, although there are still a few steps to go in the process. The recent item that spurred me to want to say a little more is Mr. Bashman’s latest monthly column, in which he discusses the proposed rule.

I don’t want this to seem like another example of Bashman-bashing. And I’m not sucking up to the guy, either. It just seems to me that Howard is a widely-read advocate in favor of the rule amendment, and I would like to add my sotto voce opposition.

Anyway, here is the portion of the column I’m interested in:

Because unpublished opinions will not miraculously transform into precedent simply by being cited in a brief filed in a federal appellate court, allowing such citations will not meaningfully increase any party’s cost of legal research. Lawyers are under no obligation to conduct research into authorities that may be persuasive to, but are not binding on, the court in which an appeal is pending. Because unpublished opinions will remain non-precedential even if the proposed new rule is adopted, attorneys will be free to conduct any amount (including no amount) of legal research into such rulings.

I have two responses to this. First, does Howard really think that attorneys will conduct no research into unpublished opinions, even assuming they aren’t “precedent”? How much does he look into them? My guess is some quantity above zero. I’m not quite ready to say that attorneys have a duty to investigate unpublished opinions now, but I would be much closer to arguing so if the circuit courts give parties free rein to cite them. Is it really impossible to imagine a malpractice or ineffective-assistance-of-counsel claim based on a lawyer’s failure to discover a citable opinion? Moreover, can anyone imagine a young associate at a big firm not toiling through all the unpublished opinions because they aren’t strictly precedent, perhaps altruistically to save the client from some padded bills? I will most certainly defer to Howard’s extensive experience as an appellate litigator, but I think that adoption of the proposed amendment would make most conscientious attorneys feel duty-bound to scour the unpublished opinions. After all, if they’re meaningless enough to ignore (as Howard suggests one can do), how important could it be that they be citable at all?

The second issue I take with Howard’s column is the notion that the proposed amendment does not make unpublished opinions “precedent,” magically or otherwise. Here is where I have been pre-empted by someone who says it better than my meager abilities would allow. Mr. Bashman’s latest interviewee in his “20 Questions” feature is Northern District of Illinois Judge Milton Shadur. Howard asks (question #15) the judge about the proposal, notes the judge’s opposition, and suggests “with respect, some of the reasons you offer are not persuasive.” Howard says that the rule “would not eliminate non-precedential opinions.” In response, Judge Shadur says that the rule “in the most meaningful sense targets the concept of nonprecedential opinions.” The judge goes on to say, “I tend to disfavor the real thrust of the change (though not its literal language) for both jurisprudential and practical reasons.” While acknowledging that “[m]ere citation as such obviously poses no concerns,” the judge sees “the true difficulty as stemming from the goal sought to be accomplished by those who cite such opinions and what that in turn would presage for the preparation of the opinions themselves.”

I know I couldn’t have said it better. I don’t think Judge Shadur is making a slippery slope argument. I think the concern is that the proposed rule would make unpublished opinions precedent in all but name. While that does give a court enough leeway to refuse to follow an unpublished opinion, it would make it more likely that a court would have to (a) write unpublished opinions that were more in-depth and reasoned, or more closely supervise staff attorneys who write them; and/or (b) discuss unpublished opinions cited by the parties and explain why the court isn’t following them in the present case.

Isn’t the very nature of precedent that a court fully explicates the reasons for its decisions, requiring later courts to explicitly agree or state the reasons the prior decision doesn’t apply here? If so, how is that different from what would take place if parties are allowed to cite unpublished opinions? They become functionally precedential, even if they aren’t formally precedential.

If the new rule passes, I find it hard to imagine a court saying that “We have said X in umpteen unpublished cases cited to us by counsel. However, today, in this published case, we say Not-X.” Even when the court says as much, surely the thorough judge would explain why the rule of the unpublished cases didn’t apply here or was wrong to begin with. To do otherwise would make it appear that the court was capricious, and that the outcome depended on little more than whim. To the extent the court feels bound, as a matter of intellectual or judicial integrity, to explain or distinguish or overrule or otherwise address its unpublished cases, they become, at a minimum, quasi-precedent.

Perhaps they are so now. I have written memos to the court advising that several unpublished decisions have said X or Y or whatever. Sometimes the rule in those cases is taken from other circuits, but this court hasn’t gotten around to issuing a published case on the matter. Sometimes they depend on the court’s procedural mechanisms, which we’re far more likely to see dozens of cases dealing with before the court is presented with one in an arguable posture. I can think of other reasons to discuss unpublished cases that I think fall short of the specter of of an invisible justice system, but often we mention them simply to say to the court that there isn’t a published case on the issue and we would appreciate having one to cite.

I have seen this analogy in a law review article I can’t recall now, but think of published opinions as a form of collateral estoppel. A party is essentially estopped from arguing that X is not the law once a published opinion comes down. That opinion is binding not just on the party before the court, but on all subsequent parties. Shouldn’t a court be careful when it forecloses a line of argument? Litigators don’t want a case with bad facts to come out before theirs, because they suspect it will bind their hands. That’s why test cases present the facts in the best possible light, with the most sympathetic parties. The result in those cases will bind others, and so they wait to bring a case in which they can get a good rule for future cases. I think something of the same mechanism takes place in a court. I think judges are conscientious and really try to get the right answer in every case. But before they issue an opinion that will bind not just the present parties but all parties, they want to be very, very sure.

Note that this is essentially what the Supreme Court does — it allows to stand plenty of cases whose result it would disagree with before taking a case as a vehicle for announcing that rule. I know the difference between appeals to the circuit courts and petitioning for a writ of certiorari from the Supreme Court is significant — the courts of appeals can’t wait for the best case. But they also have to handle more than 80 opinions each year. They can’t do that without unpublished, nonprecedential opinions.

Finally, if like Judge Richard Arnold on the Eighth Circuit you think that every opinion a court issues is precedential by its nature as a judicial pronouncement in a common law system, you won’t buy this. But you also shouldn’t buy the proposed rule as sufficient, either. I think Judge Shadur is right that the ultimate goal of most of the amendment’s backers is making all opinions, published or not, precedential. If that’s where they want to take us, they should say so, rather than making opponents of the amendment out to be Chicken Littles clucking that the sky is falling. If they don’t want full precedential value accorded to every opinion, and would be content with the proposed rule as the final word on the matter, they should say that too.

Congress Giveth, The Supreme Court Taketh Away, Congress Tries to Giveth Back

Monday, April 12th, 2004

I think I first saw this in the U.S. Law Week. Georgia Congressman John Lewis has a bill pending (with a bunch of co-sponsors) that would respond to recent Supreme Court jurisprudence on Title VII and the ADA. The bill explicitly states that Congress intended, for example, for state workers to receive the same discrimination protections afforded to private workers.

Here is a summary fact sheet on the bill, and here is a more detailed section-by-section breakdown. I count no fewer than nine Supreme Court cases the bill would attempt to overturn. Some of the more notable: Alexander v. Sandoval, holding there is no private right of action in a disparate-impact claim under Title VI; Circuit City Stores v. Adams, holding that employers may require employees to sign arbitration agreements that eliminate their ability to sue in federal court over discrimination; Buckhannon Board and Care Home v. West Virginia Dep’t of Health and Human Resources, which rejected the “catalyst” theory for recovery of attorney’s fees; Kimel v. Florida Board of Regents, which held that the Eleventh Amendment barred state workers from suing for ADEA violations; and Feddie’s favorite Justice Kennedy opinion, Alden v. Maine, which held that state workers cannot even sue in state courts for violations of federal law, thanks to the Eleventh Amendment. (I didn’t want to search forever for a cite wherein Feddie states that Alden is his favorite Kennedy opinion, although I know I’ve seen him say as much, and here he expresses “glee” at the holding. Picturing Feddie gleeful is not good medicine for a case of the Mondays, especially over an abomination like Alden.)

I have grave doubts that this bill on Capitol Hill will become law, especially not in an election year. And I’m really dubious that it can overturn some of the cases it purports to (especially Kimel and Alden). But it’s not unprecedented — the 1991 Civil Rights Act was a similar response to what Congress perceived as overly-restrictive Supreme Court interpretations of the civil rights laws. (No doubt Lewis had this in mind, as well as the 1964 Civil Rights Act, when he called his bill the Civil Rights Act of 2004.) Anyway, I thought I would pass this along for anyone who’s interested in this kind of thing. If you want to follow it, it’s H.R. 3809. I don’t have the Senate counterpart number handy, but I believe its sponsor is (the other) Kennedy.

Paul Hornung, Affirmative Action Spokesman?

Monday, April 5th, 2004

In response to item #3 in this post of mine, regarding Paul Hornung’s statement that Notre Dame should lower its academic standards so that it might better recruit black football players, a reader emails to ask:


Did Paul Hornung say anything different from people like John Thompson, etc. who opposed the NCAA requirement that a student-athlete score 800 on the college boards to qualify for an athletic scholarship? This was too tough a standard (according to them) for a black athlete to obtain.

The folks at Begging to Differ have been discussing the issue as well. Hei Lun asks:


[H]ow is what he said different from the rationale for affirmative action? According to Hornung, Notre Dame should lower its academic standards so that the school would be able to admit more black athletes. According to affirmative action proponents, colleges should lower their academic standards so that the schools would be able to admit more black students.

My response is this. I think there are good reasons to have affirmative action programs. Winning more football games isn’t one of them. Hornung never said that he was interested in anything black student-athletes would have to offer Notre Dame besides a supposedly better chance at winning. Simply put, I don’t think this is a valid reason for any university to lower its academic standards. I think this is what Tim Brown meant, too, when he said, “If Notre Dame doesn’t win games because they don’t lower their standards, I can live with that. But to lower your standards just to win football games is a wrong decision.”

As for former Georgetown basketball coach John Thompson’s longstanding criticism of the NCAA’s minimum score requirement, I think that’s different too. There, you’re not talking about admission standards, you’re talking about eligibility standards. I think it’s reasonable (even if no one believes it anymore) for the NCAA to call players “student-athletes” and insist that they demonstrate some ability to achieve academically as well as athletically. As a proxy, the NCAA instituted a sliding scale GPA/SAT requirement. According to this grid (which might be a year or two out of date but is probably still close enough for present purposes), the minimum SAT score one must have is now 820 (note that the SAT scores have been re-scaled since Thompson’s day) for full qualifiers and 720 for partial qualifiers.

But again, we’re not talking about overall university admissions standards, we’re talking about eligibility standards for athletics. (Some schools impose eligibility standards of their own that exceed the NCAA’s.) I took Thompson’s argument to be that if the NCAA is going to set a minimum cut-off for eligibility, it shouldn’t do so based so heavily on the SAT, which Thompson argued was biased against black students. Our reader may be correct that Thompson’s concern was that the minimum score was “too tough” for black students, but that isn’t precisely how I remember Thompson’s argument. Now, one can unpack that argument and disagree with various parts of it. And Thompson may have felt that the minimum score was “too tough” to attain because the test was biased. And my guess is that Thompson supported affirmative action programs, too. But I think there’s a distinction between lowering standards to get into the university and lowering standards to play sports once a student is there.