Today in the Community: November 1, 2011

Adam Liptak –

There is no question that Supreme Court clinics can play a role in a legal education. But I do have questions about signals, opportunity costs, and conflicts. It may be that we spend too much time, and encourage students to spend too much time, focusing on the Supreme Court at the expense of the balance of the American justice system. Supreme Court clinics reinforce that message. They also (therefore) probably draw some of the best students away from more traditional clinical programs. That would be fine as a pedagogical matter if the skills they taught were similar. But I suspect that the legal research and writing that make up the bulk of Supreme Court clinics’ work merely reinforces skills taught in law school. Other clinics probably actually add skills to students’ portfolios, like appearing in a local court on behalf of a battered woman, or at a removal proceeding for an alien, or in a habeas proceeding for a wrongfully convicted prisoner. The clients I just described, moreover, often have a hard time getting a good lawyer. That is not true of most parties with Supreme Court cases. Finally, for reasons I’m not sure I can articulate, there seems something a little off to me when I see elite law schools endorsing given law firms by choosing to affiliate with them through these programs, which them deliver reputational and recruiting benefits to the firms.

Alex Aronson –

I’m a student in Stanford’s Supreme Court litigation clinic, and I’ve also participated extensively in Stanford’s Community Law Clinic, a more traditional direct services clinic. Both experiences have been invaluable.

It’s fair to raise questions about opportunity costs, as most students who participate in a Supreme Court clinic probably don’t get the chance to work in another one. But I would push back against the idea that Supreme Court clinics merely reinforce skills we learn elsewhere in law school, or don’t add new skills to our portfolios. On the contrary, we’re learning a host of new skills: how to write and edit collaboratively; how to advocate, rather than just analyze; how to actually produce a brief for a court, from early-stage drafting through cite checking and printing. Through our participation in moot courts and by watching our instructors argue before the Court, we also get a great education in oral argument.

Sure, we don’t appear before judges, or work intimately with our clients. But the skills we do learn strike me just as useful to our careers (most of which, incidentally, will not involve Supreme Court litigation) as anything learned in a traditional clinic. In fact, I don’t think they are all that dissimilar.

Chuck Roth –

Defining bad law doesn’t seem very difficult in this context. If the clinic is considering representing X client, “bad law” is that which would be contrary to that X’s interests. Now, for X herself, good law might be of no use if, e.g., Ms. Ledbetter has already lost her $2 million verdict and won’t be able to get it back. But we still know what “bad law” is; it is that which would make it difficult for X to prevail on her claim – and thus, for others similar to X to prevail on their claims. It’s not a value judgment; it’s a prediction grounded in experience.

If one cares about making bad law, whether to consult outside groups depends on one’s own expertise. I would consult more about 2255 than 2241 habeas, because I know the latter and not the former.

The question is not whether clinics should “not take cases where there is significant risk of making bad law.” There is always a chance of making bad law. The question is whether the petition should go forward if the likely benefits to the client are slim (factoring in the chances of cert, the chances of prevailing at the SupCt, and the value to the client of winning) while the likely cost to others are high.

I might suggest that this question be posed in the converse. If outside groups would share their expertise at no cost, under what circumstances ought a clinic (assuming that the client has authorized the communications) maintain secrecy about a cert petition in production phase? Are there considerations (like being the first to file) which should categorically not be permitted to intrude? Should clients be asked at time of retention for consent to collaborate? Should clinics categorically refuse to represent clients who would prohibit such collaboration (as they do to lawyers who want to maintain control over the briefs)?

PS – Prof. Fisher’s article notes that cases rarely settle after a cert grant; but he does not ask why this should be. Ms. Ledbetter’s $2M was very important to her; presumably the company was very unhappy about paying it. Once cert was granted, both parties knew that they had a ~50% chance of losing, settlement ought to have been possible. Yet settlement rarely happens. Are we attorneys sufficiently investigating settlement opportunities for our clients? Are there unique forces which work against settlement at the SupCt (other than perhaps the desire to collect quills)?

Gene Magidenko –

The choice facing a Supreme Court clinic in taking a case is probably not too different from that facing a law firm with a significant Supreme Court practice or a public interest group. That is, there is a constant struggle between two potentially disparate goals. And ethical rules are not always clear in mediating this conflict.

On the one hand, attorneys are officers of the court. That role requires a broad commitment to our system of justice. Accordingly, attorneys have a general obligation to maintain the health and vitality of the legal system. Taking on a case that has a high probability of making “bad law” can lead to significant structural harm. Moreover, a poorly-argued case can easily create bad law, so the stakes are very high in Supreme Court litigation to get everything right, and not just from an individual – but a systemic – standpoint.

On the other hand, attorneys also have duties to their specific clients. A lawyer must zealously represent his client’s interests. Notwithstanding the principle of stare decisis, every case is individual in the sense that the attorney should be arguing for the client, and not with the sole goal of creating or changing legal doctrine. Therefore, if a client has a compelling case, but can get no other representation than that offered by a Supreme Court clinic, why should he be denied the opportunity to present his case to the Court?

Balancing these two interests is a delicate act, especially when an attorney is arguing before the ultimate appellate court. In many cases, the interests are probably not in conflict. But clinics may well end up taking those cases that are most on the edge, since no other lawyer wants to take them. Unless the claim is not colorable and arguments frivolous, I have a hard time saying that a clinic – or anyone for that matter – should not bring a case just because it might lead to bad law. Indeed, in many situations there may not even be a clear consensus regarding what “bad law” actually means. And if there is such a consensus, I doubt that the Supreme Court would ignore all those considerations and allow bad law to be created anyway.

Hiro Aragaki –

The lynchpin of Justice Scalia’s opinion in AT&T Mobility LLC v. Concepcion was that it is impossible to distinguish the Discover Bank standard from any number of hypothetical state laws that are plainly inimical to the FAA. Scalia offered three principal examples: A rule finding unconscionable any consumer arbitration agreement that (1) “fails to provide for judicially monitored discovery”; (2) “fails to abide by the Federal Rules of Evidence (FRE)”; or (3) “disallow[s] an ultimate disposition by a jury (perhaps termed ‘a panel of twelve lay arbitrators’ to help avoid preemption).” Like the Discover Bank standard, all of these imagined laws treat arbitration and litigation exactly the same. Nonetheless, they seem to have a disproportionately negative effect on arbitration and thus cannot possibly be consistent with the FAA.

One of the central difficulties presented by Concepcion is how to distinguish the Discover Bank standard from this “parade of horribles.” The Concepcions’ attorney, Deepak Gupta, was asked this question several times during oral argument. But other than to restate the conclusion that the hypothetical laws all “destroy” arbitration while the Discover Bank standard does not, he failed to provide a satisfactory explanation. I’d now like to suggest a possible answer.
Distinguishing Discover Bank from Scalia’s “parade” requires coming to grips with what I have described as the antidiscrimination model of FAA preemption, a model on which both parties explicitly relied throughout their briefing and during oral argument. The paradigmatic example of discrimination is a law that treat things differently—for example, a law that grants only White persons the right to sit the bar exam. Similarly, in the arbitration context the Court has not hesitated to preempt state laws that “single out arbitration agreements for suspect status,” such as a Montana law that required only arbitration clauses to be printed in underlined capital letters.
But discrimination can also be accomplished by facially neutral laws that tend to affect one group more than either, either by design or in application. An example of the former is a zoning decision that relies on neutral zoning criteria but that has the effect of denying a request to build low-income, racially integrated housing. An example of the latter is the practice of denying laundry permits to Chinese-owned businesses while granting them to almost all non-Chinese businesses. Both are examples of pretextual discrimination: purposeful discrimination hiding behind ostensibly evenhanded zoning or business permit rules.
Likewise, Justice Scalia’s hypothetical laws are all examples of pretextual discrimination. Even though they purport to apply the same procedures to arbitration and litigation, the procedures themselves (judge-supervised discovery, juries, and the FRE) are litigation-specific. Holding arbitration to those procedures raises a strong presumption of anti-arbitration hostility because it betrays a kind of litigation “chauvinism”—the idea that only litigation-like discovery, factfinding, and evidentiary rules are adequate. Scalia’s hypothetical laws are difficult to explain other than through lingering yet outmoded presumptions about arbitration’s inferiority as a dispute resolution forum.
The same is not, however, the case for Discover Bank. Discover Bank does not dictate the particular form that the class mechanism must take in arbitration. It does not necessarily require the wholesale importation of judicial class action procedures such as Rule 23 of the Federal Rules of Civil Procedure (FRCP) and therefore does not betray the same anti-arbitration hostility evident in Scalia’s parade. The most that can be said about the Discover Bank standard is that it mandates the availability of some type of class mechanism suitable to the arbitration context. A more relevant parade of horribles, therefore, would consist of hypothetical laws that declared unconscionable agreements that prohibit any type of discovery (not just judicially-monitored discovery) or evidentiary rules (not just the FRE) in arbitration—even those tailored, like the AAA’s class arbitration rules, specifically to the arbitral context. But it is difficult to appreciate how such laws discriminate against arbitration at all, especially if—like Discover Bank—they impose the same restriction on waivers of the corresponding discovery and evidence rules in courtroom proceedings.
Another way to state the point is to say that the Court improperly focused on Discover Bank’s effect on arbitration rather than on its purpose. This is a common mistake committed by lower courts when presented with the question of whether the FAA preempts a state law that neither singles out arbitration nor is completely general. Discover Bank may have a greater adverse impact on arbitration than on litigation, but that does not mean it was intended to discriminate against arbitration. Most laws also produce uneven effects on the practices they regulate. True, there is significant disagreement about whether disproportionate effects alone constitute sufficient evidence of discrimination. But as I have elsewhere argued, the FAA’s antidiscrimination regime is (and should be) directed at purposeful discrimination only—at reversing the old common law hostility toward arbitration.
The basic error of Scalia’s “parade,” and the Concepcions’ inability to expose that error, reflect a larger problem with FAA preemption law that I have attempted to underscore in my own work. The problem is that courts have uncritically deployed a rhetoric of antidiscrimination to justify FAA preemption without understanding and scrutinizing the theoretical framework it presupposes. Concepcion challenged that framework because it was the first case before the Court that involved pretextual discrimination against arbitration (in all of the Court’s prior cases, the state law at issue “singled out” arbitration). But existing FAA preemption law provided little in the way of conceptual tools to meet that challenge. Lacking a robust vocabulary or theoretical model even to name the type of discrimination against arbitration that the FAA forbids, the Court and counsel were left to struggle with the complex question of pretext using only the most rudimentary of concepts (such as the thoroughly unhelpful maxim that arbitration agreements must be “placed upon the same footing as all other contracts”). Given the hopelessly under-theorized state of FAA preemption law, the disappointing outcome in Concepcion should hardly come as a surprise.