Within the Scope

Blogging on Administrative Law and the Public Sector

Sunday, August 31, 2008

If You Only Read a Handful of Articles This Year … Read These ….

In the latest issue of the Minnesota State Bar Association’s Public Law Newsletter, published on Friday, I included a summary of some important research coming out of the University of Chicago.

Relying upon a database of 4,500 Court of Appeals decisions that have been issued since 1995, Professor Cass Sunstein and his team argue that while the ideology of judges has an important effect on the outcome of decided cases, the ideology of a judge’s colleagues is a better predictor of a judge’s vote in a particular proceeding than the judge’s own views. Sunstein asserts that this is because dissenting opinions on a three-judge panel are likely to be both futile and burdensome to produce – what Sunstein calls “a difficult combination....” As he writes:
Dissenting opinions might also cause a degree of tension among judges, a particular problem in light of the fact that judges must work together for many years. According to informal lore, a kind of implicit bargain is struck within many courts of appeals, in the form of, “I won’t dissent from your opinions if you won’t dissent from mine, at least not unless the disagreement is very great.” All of these points help to account for the great power of “the ideology of one’s colleagues” in producing judicial votes.
Comparing actual panel votes against a stereotypically liberal position (and the numbers likewise work in reverse if you were to measure panel members against the stereotypical conservative position), Sunstein asserts that the greater the concentrations there are of particular types of appointees on an appellate panel (whether Republican or Democrat) the greater the movement there will be away from a neutral position. Thus, the more unified panels of Republican appointees there are, the more conservative results; the more unified panels of Democratic appointees there are, the more liberal the outcomes.

In fact, Sunstein and his authors make the claim that, if anything, the effects that they detail are understated. The authors claim that experienced appellate lawyers already have an informal version of their findings in their head; and that when advocates are facing unified panels of judges with an ideologically opposite point of view – those cases settle. The authors argue that if every appeal went all of the way through the process to a written decision, the effects that they document would be larger.

Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit – someone who certainly knows about the behavior of appellate court judges – apparently agrees. In his own study, Judge Posner writes about what he calls the “triple-whammy” that occurs when a conservative appointee replaces a more liberal judge. Judge Posner says:

There is thus a triple effect of a change in the ideological composition of a court when a member of the minority bloc on the court (say judges appointed by Democratic Presidents) is replaced by a member of the majority bloc: The majority becomes larger and therefore the court becomes more conservative irrespective of any group effects; the members of the majority become more conservative than they were when there were fewer of them; and the minority becomes more docile—more likely to go along with the majority than before.
While it may well be that the pressures of collegiality on appellate panels trump the personal ideology of the judges (and readers of these pages may well reasonably differ on whether that is a good thing or a bad thing), but these studies goes on to suggest that these pressures have genuinely substantive impact on the outcomes of cases. In Administrative Law, for example, Sunstein posits that there is a cohort of close cases – perhaps as many as 1 in every 6 – where a decision on whether the agency’s action is sustained or not, is a function of the composition of the appellate panel.

As someone who believes that it is “emphatically the province and duty of the judicial department to say what the law IS,” and that it should be a trifle who the appellate panel members ARE, I find these studies chilling. Are we really at the point where we say: “Tell me who has been assigned to the three-judge panel and I’ll tell you whether or not the agency acted lawfully?”

Whatever your view, this is a literature as to which every lawyer should be familiar.

A copy of my article for the Public Law Newsletter is accessible here. Professor Sunstein’s articles on his findings are accessible here and here. Judge Posner’s study, which points up some of the same findings, using data sets that span back to 1925, is accessible here.

If you only read a handful of scholarly articles this year; be sure to read these.

Thursday, August 21, 2008

Election Reporting, Yes.… Although Not for the Truth of the Matter Asserted

In an interesting opinion issued late last month, a unanimous panel of the U.S. Court of Appeals for the Eighth Circuit upheld a trial court’s exclusion, as inadmissible hearsay, certain election-related reports made by the Missouri Secretary of State’s office.

The U.S. Government had sued the State of Missouri, seeking orders that would compel the state to upgrade the processes by which it culls deceased and ineligible persons from Missouri's voter rolls.

Earlier, in 2005, as part of its preparation for a biennial report to Congress on election matters, the federal Election Assistance Commission sent survey forms to Missouri, requesting data regarding the performance of local election officials. When state officials sought an extension of the time to compile this data, the EAC “denied Missouri’s request for an extension of time and told Missouri to do the best it could.”

When the federal government later sought to introduce these reports as evidence of Missouri's failure to meet federal election standards, the district court received the survey responses to demonstrate that Missouri had notice of possible election-related problems, but did not admit the responses for the truth of the matters asserted in the reports. The district court found that the statements about the performance of local election officials were hearsay. In its appeal, the United States challenged this ruling.

Sustaining the trial court’s limited use of the reports, the panel held that the state’s responses to the EAC survey did not qualify for an introduction as an admission of a party opponent, an adoptive admission, a public record or as a “record of a regularly conducted activity” of the state.

The panel’s complete analysis – including a worthwhile discussion of the Elections Clause of the U.S. Constitution – is accessible here.

Minnesota …. Also the Land of Lincoln

Today, the Minneapolis-based Center of the American Experiment released its latest symposium of essays – Learning from Lincoln: Principle and Pragmatism, Getting the Balance Right.

Individually, and collectively, these essays touch upon President Lincoln’s special brand of statecraft and the methods that he used to overcome practical challenges.

As shown in the accompanying photograph, which was taken from inside the chamber of the Minnesota House of Representatives, Lincoln’s work, presidency and example still forms an important backdrop to policy discussions in Saint Paul. Indeed, Lincoln, who himself was a prairie legislator for four terms, remains something of a patron saint to all of those who struggle with difficult questions at the State Capitol. In part, this is because any Minnesota Representative who vies for recognition from the Speaker of the House, first meets Lincoln’s eyes, as the President gazes back from the portrait above the presiding officer. I am certain that over the years, recalling how Lincoln remained decorous and calm in times of bitter conflict, has helped his successors here to choose better and softer words in floor debates. Lincoln reminds us of our best hopes and our better natures. He certainly did for me.

You can see how each of the symposium authors addressed Lincoln’s continuing leadership legacy – including my submission on page 28 – from this link here.

Friday, August 15, 2008

"Making Your Case": The Gift for a Lawyer You Love

This past weekend I had the occasion to fly home to Minnesota from the East Coast, by way of a discount airline carrier. With this particular carrier, comparatively low fares were combined with a bewilderingly long layover in Atlanta before passengers and crew could depart for the prairie.

Thankfully, however, someone who loves me sent me on this trip with a copy of Justice Antonin Scalia and Bryan Garner’s new book: Making Your Case: The Art of Persuading Judges. My layover flew by in an instant.

This is a profoundly useful book – and my great wish was that I could have had such a volume when I was starting out in the practice of law two decades ago.

The book is useful because the authors practice precisely what they preach to every other lawyer: It is crispy written, with vivid language that moves directly to the points the two hope to make.

Moreover, the recommendations that the authors make on style and tone for professional advocacy ring very true. Early on in my career, I learned some of these same lessons the hard way – by doing the opposite and failing to persuade the tribunal.

For the junior lawyer who is just starting out on his or her career, the book’s recommendations could represent an end run around 10 years or more of searing education in the School of Hard Knocks. Indeed, for every professional who cares about advocacy, Making Your Case is a volume that is worth reading and studying closely.

Mindful that some readers of these pages would rather eat nails than remit a dime in royalties to Justice Scalia, I recommending that these readers do themselves a favor and borrow the book from their favorite library.

Or ask to borrow my copy. Although not for long….. This is a book that is worth reading again and again.

Wednesday, August 13, 2008

Damn, This Traffic Jam. It Hurts My Car to Go So Slow.

The City of St. Paul has released its Traffic Management Plan for the downtown area during the upcoming Republican National Convention. The plan will begin after the evening rush hour on Friday, August 29, and will end by Saturday, September 6.

Current information on Capitol-area road closures during the Convention includes the exit from Route 94-East to 5th Street and the exit from Route 35E to Kellogg Boulevard.

A map of the security perimeter around the convention site is accessible here and some additional specifics on the City's Traffic Management Plan are accessible here.

Construing Statutes and the Art of the Possible

In an interesting opinion issued yesterday, a panel of the U.S. Court of Appeals for the Eighth Circuit turned away the challenge of an Iowa landowner to her exclusion from certain farm payment programs administered by the U.S. Department of Agriculture.

In order to deter the conversion of wetlands, federal law excludes from participation in farm program payments those persons who have been determined by the USDA to have converted wetlands to areas for crop production – penalizing those manipulations of designated wetlands “for the purpose or to have the effect of making the production of an agricultural commodity possible if-- (i) such production would not have been possible but for such action . . . .”

Focusing upon the “possibility” of growing items on her land, the landowner argued that because the areas that the USDA designated as wetlands could have sustained some planting, however small, before she filled them in to support broader production, her actions did not amount to prohibited manipulation of wetlands.

Disagreeing, the panel sustained the agency’s interpretation of the exclusion statute, construing the term “possible” “in a practical sense, treating as conversion those actions that make a wetland more suitable for growing agricultural commodities.” Concluded the panel: “As aptly noted by the district court, Clark’s position, if accepted, would exclude from protection all wetlands that were in any measure farmable prior to manipulation. The USDA described Clark’s position as follows, ‘[Clark’s] construction would mean that, if the land could have occasionally produced one stunted ear of corn or pod of soybeans prior to being filled, there could be no conversion of a wetland triggering the [16 U.S.C.] § 3821 bar on participation in federal farm programs.’ We agree that such a result would be absurd as it would remove from protection vast areas of wetlands.”

The Panel’s complete analysis, including an interesting discussion of Chevron and Skidmore deference for agency interpretations of statutes, is accessible here.

Tuesday, August 12, 2008

Our Neighbors and Friends: District Court Seeks Comment on Pro Hac Vice Rules

The United States District Court for the District of Minnesota has circulated for public comment proposed changes to Local Rule 83.5. Under the proposed rules, the District Court would jettison the requirement that “local counsel” be a resident of Minnesota – presumably making appearances by attorneys who reside in Wisconsin or the Dakotas, but who are licensed to practice law in Minnesota, to serve in this capacity.

Comments on the proposed revisions should be provided in writing to the Clerk of Court, or by e-mail to MnFedRules@mnd.uscourts.gov, on or before September 8, 2008. The rules will be adopted by the full Court following consideration of any comments or suggestions received by the Clerk during the public notice period.

The text of the proposed revisions is accessible here.

Hello…. Are You Still There?

To the regular readers of these pages, please accept my apologies for the drop off in posts recently.

As always, work comes first before blogging – and in recent weeks I had some important writings to complete for my day job.

Also, I was away from my writing desk on a bit of extended travel that I will describe in more detail in subsequent posts. I have some good stories from the road to share with you.

So, if you are still there, please stay tuned … And thanks for checking in.