Matthew Shardlake is a fictional lawyer at Lincoln’s Inn in sixteenth-century London. He is also a first-rate detective who reluctantly attempts to unravel some of the most important mysteries of the time while navigating the treacherous political waters of Tudor England. Shardlake is the brainchild of British lawyer-turned-author C.J. Sansom. Through a series of five novels, readers have watched as Shardlake takes the qualities that make him a successful lawyer and employs them in the task of solving crimes.

The Shardlake series began with Dissolution, a murder mystery set against the backdrop of King Henry VIII’s dissolution of British monasteries in the first half of the sixteenth century.^[2] In each subsequent installment of the series, Shardlake reluctantly undertakes to solve a new mystery. The second novel, Dark Fire, was the first to feature any real insight into Shardlake’s law practice. There, readers got to see Shardlake do battle in court with Stephen Bealknap, “a false and greedy rogue.”^[3] The subsequent novels, including the most recent, Heartstone, have provided readers with greater insight into Shardlake’s practice of law. Sansom views his creation as a person of honesty and integrity.^[4] Indeed, as one reads the series, it becomes clear that Shardlake is meant to serve as the embodiment of many of the most cherished ideals of the legal profession. In other words, Sansom views Shardlake as a symbol of professionalism.

“Professionalism” has become a buzzword in the legal profession over the past few decades. However, there is considerable debate as to what exactly the concept entails and how it applies. There can be little doubt that Shardlake is fundamentally a decent and honest person and an outstanding lawyer. And at a time when the legal profession craves role models—real or fictional—it stands to reason that as the series gains popularity, more will point to the sixteenth-century Shardlake as a role model and symbol of professionalism for twenty-first-century lawyers.^[5]

Yet, we also live in a time when it is difficult to retain one’s status as a role model: Witness the numerous revisionist articles questioning the actions of beloved fictional hero Atticus Finch, an inspiration to many lawyers.^[6] If Shardlake is to serve as a symbol of the core values of the legal profession, he must withstand similar scrutiny.^[7] A close examination of Shardlake’s actions, however, produces mixed results in terms of his status as a role model for twenty-first-century lawyers. But more importantly, the series illustrates the dif­ficulties in crafting a coherent definition of professionalism. Ultimately, the dilemmas Shardlake faces and his responses to those dilemmas provide lawyers with the opportunity to reflect upon the ethical conundrums present in modern practice and the varying conceptions of professionalism within the legal field.

I. “I Present Master Matthew Shardlake, the Sharpest Hunchback in the Courts of England”^[8]

Longtime readers of the Shardlake series have had five novels to get to know Shardlake. They have seen Shardlake solve a murder in a monastery, seek out a sixteenth-century weapon of mass destruction, get thrown in the Tower of London, and track down a serial killer. However, readers new to the series are likely to find Shardlake accessible, particularly if they are lawyers themselves.

Shardlake is primarily a property lawyer. Originally a true believer in the Reformist cause that led to King Henry VIII’s schism with the Roman Catholic Church, Shardlake begins to lose his fervor by the end of the first novel, and he increasingly encounters questions of faith more generally as the series progresses. However, much of his success as a lawyer is due to his Reformist connections, a fact those in power sometimes exploit to pressure Shardlake into doing their bidding. By the beginning of the fourth novel in the series, Shardlake has advanced from barrister to serjeant, the highest rank of lawyers and the class from which judges are selected.^[9] By the end of the fourth novel, Shardlake has the patronage of none other than Queen Catherine Parr.

Many of the jokes Shardlake hears about lawyers are the same that modern lawyers are accustomed to, and his tolerance for such jokes is about as limited as that of many modern lawyers.^[10] Although he is sometimes mocked by others for being an idealist,^[11] Shardlake is more than a little cynical when it comes to the law and its practice. For example, he is not particularly fond of London during Reform because it is filled with “fanatics and cozeners . . . [a]nd my profession has enough of both.”^[12] In darker moments, his cynicism extends to the law itself. For example, when one of Shardlake’s assistants suggests that the truth will prevail in a matter, Shardlake responds, “[Y]ou have not spent a lifetime around His Majesty’s courts to say that.”^[13] However, despite his sometimes melancholy nature, Shardlake occasionally manages to profess a belief in the power of the law to bring about justice. He enjoys “using the law to right wrongs. Where one can.”^[14]

Among Shardlake’s other traits are his intelligence and doggedness. Other characters often remark on Shardlake’s cleverness and his ability to untan­gle com­plicated puzzles. However, Shardlake’s talents in this area are as often the result of hard work and determinedness as they are of innate intelligence. Shardlake is a bulldog. In Dissolution, for example, Shardlake tells the story of a former evidence teacher: He had a saying. “In any investigation, what are the most relevant circumstances? None,” he would bark in reply. “All the circums­tances are relevant, everything must be examined from every angle.”^[15] Shardlake’s investigative techniques are guided accordingly. This doggedness and attention to detail also characterizes Shardlake’s approach to the practice of law: “Lawyers must spend their time adumbrating details, however sordid,”^[16] Shardlake advises, and they must base their decisions on “detachment [and] reason,” not instinct.^[17]

Shardlake’s defining characteristic, however, is his kyphosis; Shardlake is, in his own words, a “hunchback.”^[18] Shardlake developed the condition at an early age and was subjected to taunts and abuse from other children. These taunts and abuse follow Shardlake into adulthood, and he is routinely subjected to insults about his physical impairment throughout the series.^[19] Indeed, in Sovereign, Shardlake is subject to public mockery for his impairment by none other than Henry VIII himself.^[20]

Sansom has stated that he wanted his protagonist to be “‘apart’ from his time,” so as to better serve as an interpreter of the sixteenth century for the modern reader.^[21] After a lifetime of abuse, Shardlake has low self-esteem and is highly conscious of his physical impairment. However, Shardlake’s disability has had other, more positive effects. Knowing “only too well what it was like to be a despised outsider,” Shardlake has a kind heart and a strong desire bor­dering on need to assist the less fortunate. This trait also helps define Shardlake as a lawyer. Throughout the series, Shardlake frequently devotes some of his practice to assisting poor or otherwise disadvantaged clients.^[22]

II. “England’s Law Is a Rack in a Cellar!”^[23]

Although Sansom has said he is unsure why he gave Shardlake a hunchback, he has speculated that “perhaps it symbolizes the weight he carries as a person of integrity in that grim time.”^[24] To fully appraise Shardlake’s professional integrity, one must put the practice of law during Shardlake’s time in context. Although the lawyers of Shardlake’s time were subject to a number of external regulations, the pressure to conform to the prevailing norms of the legal profession were at least as powerful. In this respect, modern lawyers should find a ready parallel. However, the series also depicts Shardlake and his colleagues facing the challenge of practicing law in an age when the rule of law had little meaning to many in power.

A. Formal Regulation of the Legal Profession

The lawyers of Shardlake’s time were subject to a number of forms of external regulation. By virtue of their inherent authority over the court system, judges could impose discipline upon lawyers for misconduct.^[25] In addition, Shardlake and his brethren were subject to a number of statutes regulating the legal profession.

The first significant regulation of the legal profession in England was the Statute of Westminster of 1275.^[26] The statute as a whole addressed a variety of litigation abuses by court officials and lawyers.^[27] Most notably, Chapter 29 prohibited a lawyer from engaging in “any manner of deceit or collusion” and made the offense punishable by imprisonment and prohibition from ever appearing again in the court in question.^[28] The term “deceit” was construed broadly to cover not simply common law fraud, but false statements to the court, overzealousness, conflicts of interest, and breaches of client confidentiality as well.^[29] According to Jonathan Rose’s exhaustive study, sanctions imposed under Chapter 29 “varied from disbarment and imprisonment for a year and a day, to imprisonment only, a shorter imprisonment, temporary suspensions of different lengths, or a fine.”^[30]

A lawyer practicing in London during Shardlake’s time may also have been subject to the London Ordinance of 1280. The Ordinance regulated the right of serjeants to appear in the London courts by excluding those who “do not reasonably understand their profession.”^[31] The Ordinance also contained spe­cific prohibitions on misconduct, including representing a client whose interests were adverse to a former client in the same matter^[32] and champerty and mainten­ance.^[33] Another statute, Statute 4 Henry IV, Chapter 18 (1402), applied to all royal courts.^[34] According to Rose, the statute “focused primarily on regu­lating attorney admission, although it also dealt with their misconduct.”^[35] Given the number of “falsifications, deceits and nullifications” by lawyers and the number of lawyers who had “learned little or nothing of the law,” the statute required that attorneys pass a judicial examination.^[36]

Attorneys also took the following oath under the 1402 Act:

You shall doe no Falsehood nor consent to any to be done in the Office of Pleas of this court wherein you are admitted an Attorney. And if you shall know of any to be done you shall give Knowledge thereof to the Lord Chief Baron or other his Brethren that it may be reformed you shall Delay no Man for lucre Gain or Malice you shall increase no fee but you shall be contented with the old Fee accustomed. And further you shall use your self in the Office of Attorney in the said office of Pleas in this Court according to your best learning and discretion. So help you God.^[37]

Especially noteworthy is the fact that, in addition to swearing to avoid falsehoods, a lawyer swore to make a report of another attorney’s falsehoods. Thus, lawyers of the time had a reporting obligation at least somewhat comparable to American Bar Association (ABA) Model Rule 8.3(a)’s requirement that a lawyer who knows of another lawyer’s serious misconduct inform the appropriate disciplinary authorities. Indeed, these positive expres­sions of a lawyer’s ethical obligations suggest that lawyers of Shardlake’s age were subject to duties that, at least on the surface, are similar to those of twenty-first-century lawyers.

B. The Inns of Court and the Legal Profession of the Time

In addition to formal regulation of the legal profession, lawyers in Shardlake’s time were subject to the prevailing norms and unwritten rules within the profession. For British lawyers in the sixteenth century, these norms were driven in large measure by the culture of the Inns of Court.^[38] The collegial nature of the present-day Inns has been described as “providing a ‘powerful deterrent’ against deviations from barristers’ standards of professionalism.”^[39] Given the more insular nature of the Inns and the legal profession during Shardlake’s time, one can only surmise that the Inns had an even greater deterrent effect on conduct deemed to be inconsistent with the then-prevailing norms of the legal profession.^[40]

The Inns served a number of functions, including qualifying their members to practice in court.^[41] Although aspiring lawyers certainly learned the law at the Inns,^[42] Wilfrid R. Prest has argued that the Inns were not “educa­tional institutions first and foremost.”^[43] Described by one author as part club, part college, and part trade union,^[44] the Inns shaped lawyers’ sense of professionalism—and hierarchy—in various ways. Members and students resided at the Inns^[45] and ate meals in a hall at tables ordered by rank: The benchers, the senior members who actually ruled the house,^[46] were served first, followed by the barristers, and finally the students.^[47]

The benchers were responsible for maintaining discipline.^[48] There were rules regulating numerous aspects of life in the Inn, including proper dress, the wearing of beards, and the appropriate length of hair.^[49] Although there was relatively little attempt by the benchers to regulate the personal lives of their subordinates during Shardlake’s time, the benchers did insist upon a proper showing of deference.^[50] One of the more frequently punished offenses was “insolence.”^[51] In Dark Fire, for example, one of Shardlake’s brethren faces the prospect of a heavy fine and disbarment for breaking “all the rules of courtesy” by engaging in a public disagreement with the Duke of Norfolk at a formal gathering at Lincoln’s Inn.^[52] Deference was also expected of a barrister in his professional life. According to Prest, “no barrister could appear in court against a bencher of his own inn” without permission.^[53]

As portrayed in the Shardlake series, this devotion to professional courtesies extended beyond mere politeness and illustrates what James Moliterno has referred to as the “‘take care of one another before all other interests’ [moral] understanding that naturally results from the sort of in-breeding that once dominated the profession.”^[54] For example, when Shardlake represents a client in a landlord–tenant dispute against his nemesis Bealknap, who has acted as the sixteenth-century equivalent of a slumlord, Bealknap expresses outrage at the idea that Shardlake would “take a fellow barrister to court!”^[55] Shardlake winds up being shunned by some of his fellow lawyers at Lincoln’s Inn for offending “professional solidarity” in bringing the action against Bealknap. Part of Bealknap’s incredulity at being sued stems from his belief that “professional solidarity” works to the interest of all lawyers: “The system works to all our advantage and there is much gold to be made with little effort if one chooses the easy path.”^[56]

Obviously, if helping a client sue a fellow lawyer amounted to a breach of professionalism in the eyes of some lawyers during Shardlake’s time, reporting a fellow lawyer’s professional misconduct is hard to imagine, despite the formal ethical obligation to do so. For instance, Bealknap has a paid “ring of com­purgators” who provide false declarations at Bealknap’s request. Bealknap’s “sideline was well known throughout Lincoln’s Inn, but no barrister would ever inform against another member of the profession.”^[57] Shardlake eventually threatens to report Bealknap’s sideline, despite the fact it would mean that his “name [would] stink in Lincoln’s Inn” since “[l]awyers aren’t supposed to report each other.”^[58]

Over time, the Inns developed their own disciplinary systems for dealing with professional misconduct.^[59] There is some suggestion in the Shardlake series that the benchers at Lincoln’s Inn responded to complaints of professional misconduct as well as transgressions of professional courtesies and codes of conduct within the houses. For example, in Dark Fire, Shardlake threatens to bring Bealknap “up before the secretary” at Lincoln’s Inn for maintaining his ring of compurgators.^[60] But the historical descriptions of the disciplinary system of the Inns during Shardlake’s time tend to focus almost exclusively on misconduct within the Inns themselves and other violations of professional courtesies.^[61] Thus, the evidence suggests that the benchers were more heavily focused on enforcing good behavior and the behavioral norms of the profession than they were on standards of professional conduct.^[62]

C. The Culture of the Time and Its Impact on the Law

Finally, one must also consider Shardlake’s actions within the climate of the reign of Henry VIII. Throughout the series, King Henry and his advisors show little regard for the truth or due process of law. Wives are dispensed with as the King desires, and political opponents are locked up and tortured under false pretenses. Shardlake is himself falsely imprisoned and tortured in the Tower of London based on a false oath procured by a politically powerful official.^[63] All the while, King Henry vacillates on the subject of religion while religious extremism prospers, causing much cynicism among the common people.^[64]

The Shardlake series depicts life during this period as exceedingly harsh. Therefore, it is hardly surprising that there is a general lack of respect for the law and its institutions in Shardlake’s world. Judicial corruption appears to simply be an unpleasant reality with which lawyers must contend.^[65] In Heartstone, for example, the systemic corruption of the Court of Wards is central to the plot. Shardlake is advised early on to be prepared to pay bribes in his dealings with the court, and the clerk of the court is actually bold enough to inform Shardlake as to the going rate for a particular form of assistance.^[66] In Dark Fire, Shardlake’s case against Bealknap is heard by Judge Heslop, “a lazy-minded fellow” with “a poor reputation for honesty,” who arguably has a conflict of interest in the matter and whom Shardlake suspects of having been bribed.^[67] Yet, Shardlake is left simply to curse his luck that he “had drawn a low card in the gamble of the law” after he loses.^[68]

There is a general cynicism concerning the legal system among lawyers and non-lawyers alike in the series. Shardlake’s primary adversary, Bealknap, at one point remarks, “The world is a battleground, predators and prey. The rules and conventions of the law only disguise the fact.”^[69] Less detestable characters—both lawyers and non-lawyers—express similar sentiments about the law and its ability to bring justice in such a world. Toward the end of Dissolution, one character accurately sums up the depressing state of the law as depicted in the Shardlake series: “England’s law is a rack in a cellar!”^[70]

Present-day lawyers are certainly familiar with this type of cynicism toward the law and its practice. Every lawyer knows a colleague with a view of the legal profession like that of Bealknap’s. But the level of cynicism and corruption that Shardlake confronts is also undoubtedly greater than that faced by present-day attorneys. Indeed, this is part of what makes Shardlake’s struggle throughout the series to remain an individual of personal and professional integrity so entertaining for lawyers in particular.

III. The Professionalism of the “Sharpest Hunchback
in the Courts of England”^[71]

There can be little doubt that C.J. Sansom views his fictional hero as a role model for twenty-first-century lawyers. Throughout the series, Shardlake is at odds with the prevailing norms of the legal profession, and it is clear that the reader is meant to take Shardlake’s side in the dispute. Shardlake is unques­tionably a person of integrity, and this fact undoubtedly makes the series as a whole more appealing to lawyers.

But what ultimately makes the Shardlake series so intriguing for lawyers is Sansom’s ability to use the sixteenth-century Shardlake as a mirror for the prac­tice of law in the twenty-first century. For example, for most modern American lawyers, the Tower of London holds little meaning. But the words “Guantanamo Bay” and “torture memos” can trigger heated debate about the role lawyers may properly play in assisting clients. Therefore, modern lawyers can hardly avoid the moral and ethical ambiguity present when, in Sovereign, Shardlake does the bidding of the King’s advisors and helps transport a political prisoner to the Tower of London to be tortured for information.

The Shardlake series deals with fundamental issues of what it means to be an ethical and professional lawyer that have bedeviled the legal profession for centuries. Shardlake’s ethical dilemmas invite modern lawyers to stand, however briefly, in his shoes and consider their own response. In the process, the series helps illustrate the considerable debate within the legal profession as to how these issues should be resolved given the ambiguity inherent in the term “professionalism” as applied to the legal profession.

A. Defining Professionalism

“Professionalism” is an elusive concept.^[72] The term is intended to convey something beyond mere compliance with the disciplinary rules to which all lawyers are subject. The professionalism movement gained prominence as part of a response to the perception that too many lawyers engage in a form of win-at-all-costs, overzealous lawyering, including the use of “Rambo-style litigation tactics” and general incivility.^[73] Thus, rather than offering a concrete meaning, the term is in some ways almost the anti-definition of a particular form of objectionable lawyering.

Supporters of the professionalism movement have attempted to provide at least some independent definition of the term, however. In the litigation context, for example, one author has suggested that to “conduct litigation ‘profes­sionally’ . . . means to abide by the rules and ideals of the adversarial system.”^[74] Synthesizing various statements of the principles of professionalism, another author defines professionalism, in part, as striving to realize “the core values and ideals of the legal profession.”^[75] Of course, this begs the question of what those ideals are and whether there is, in fact, agreement about them. At a broad level of generality, there is agreement as to the core values of the legal profes­sion, such as competence, loyalty to clients, maintaining client confidentiality, and serving the public good.^[76]

However, as discussed in greater detail in the following Subpart, critics have charged that the professionalism movement overlooks the reality that there are competing conceptions as to how these values should be applied.^[77] Critics have also argued that the professionalism movement’s focus on civility undermines the legitimate and fundamental value of zeal on behalf of a client.^[78] They further charge that the professionalism movement seeks a “return” to a fictitious and idealized era in the legal profession in which nearly all lawyers were principled, competent, and courteous.^[79]

B. Shardlake as a Model of Professionalism

Compliance with ethical standards is intertwined with the concept of professionalism. To at least some extent, however, the question of whether Shardlake is a model of ethical lawyering raises a question separate and apart from whether Shardlake embodies the values of the legal profession. An examination of the Shardlake series yields some uncertain answers, both as to Shardlake and as to what it means to be an ethical and professional lawyer.

1. Shardlake as an Ethical Role Model

Throughout the series, Shardlake engages in a number of ethically questionable courses of action. While this fact alone most likely precludes Shardlake from being offered as a model of an ethical lawyer for today’s time, one must put his actions in context. Unlike Atticus Finch, Shardlake is the hero of a mystery series, a genre that permits and sometimes requires its heroes to engage in limited forms of deceit. Thus, some of Shardlake’s ethical transgres­sions (such as breaking and entering during the course of an investigation^[80]) are of the type readers expect from their fictional detectives; without them, the plot could not develop. For another, for virtually every one of his possible ethi­cal trans­gressions, Shardlake makes a correct (and sometimes difficult) ethical choice, such as resisting the pressure of a powerful official to file a false report in a homicide investigation.^[81] Finally, Shardlake’s actions must be considered within the context of his time.^[82] For example, in Heartstone, Shardlake bribes the clerk of the Court of Wards in order to gain his help in the wardship matter. By modern standards, Shardlake’s actions would be considered outrageous. Yet the reality for Shardlake is that corruption in the court is not only widespread, but intertwined with procedures of the court. As depicted, a lawyer simply could not function if he were not willing to pay the occasional bribe.

Some of Shardlake’s ethical missteps, however, involve more complicated questions of professional conduct and force readers to examine their own views as to what it means to be an ethical person and lawyer. For example, in Heartstone, Shardlake lies to authorities about the discovery of evidence in order to reopen an investigation into a cold homicide. As his assistant Barak points out, Shardlake’s actions amount to perjury.^[83] Admittedly, Shardlake is moti­vated by a desire to assist an individual confined in Bedlam, the London mental hospital, and to see the truth come out concerning a murder that he suspects involves an elaborate conspiracy of silence. But does this excuse the clear ethical violation? There is considerable disagreement within the legal profession as to whether the use of deception is ever ethically permissible in the course of an investigation in order to gather evidence that would be difficult to uncover otherwise.^[84] Modern lawyers have faced professional discipline for engaging in rule violations in an attempt to bring about what is clearly a public good.^[85] And modern lawyers continue to argue about whether it should be ethically permissible for a lawyer to elicit perjured testimony while representing a criminal defendant.^[86] Ultimately, Shardlake serves not so much as an ethical role model, but as a device to force readers—and particularly readers who happen to be lawyers—to reflect on what it means to be an ethical lawyer and to consider that “ethics” is not always simply a matter of looking to the disciplinary rules governing lawyers.

2. Shardlake as a Model of Professionalism

More interesting than the question of whether Shardlake can serve as an ethical role model, however, is the question of whether Shardlake can be held up as a symbol of professionalism when judged by modern standards. Of course, ethics cannot be divorced from professionalism. But the concept of profes­sio­nalism involves more than compliance with the ethical standards of the profession. Shardlake certainly embodies some of the core values of the legal profes­sion: He is willing to represent those who cannot afford legal repre­sentation;^[87] he is willing to represent those who are the targets of public scorn;^[88] he is highly competent;^[89] and he is clever and (more importantly) diligent.^[90]

Like many supporters of the professionalism movement, Shardlake detests those lawyers who make their way “by bullying and bluff.”^[91] Through the first four novels, Shardlake’s frequent nemesis, Bealknap, serves to embody the type of overly combative lawyer that modern-day civility codes seek to address. In Heartstone, Shardlake’s courtroom opponent, Vincent Dyrick, serves that same role. Shardlake describes Dyrick as one “who knows no other way of being other than aggression.”^[92] Dyrick, the Rambo-type lawyer, views Shardlake’s sympathetic nature as a sign of weakness.^[93] Yet, readers of the series know that Dyrick is mistaken and that Sansom has created a character in Shardlake who, although he may have a soft heart, will not back down in the pursuit of his client’s interests.

Thus, supporters of the professionalism movement might be expected to embrace Shardlake and to hold him up as an example for present-day lawyers. However, a full portrait of Shardlake is somewhat more complicated. Ultimately, some of Shardlake’s actions and the dilemmas he confronts illustrate the tensions inherent in any definition of “professionalism.”

a. Zealous Advocacy

Shardlake’s core professional value is placing his clients’ interests above the interests of others. Shardlake notes that fighting for his clients is his “life’s work.”^[94] For Shardlake, loyalty to one’s clients equates to professional integrity, which he views as his “badge” and “identity” in “the often corrupt world of the law.”^[95] Historically, the legal profession has treated loyalty to clients as a fundamental value; thus, to some, the essence of professionalism is for a lawyer to “zealously and competently use all lawful means to protect and advance the client’s lawful interests as the client determines those interests to be.”^[96] Shardlake is a tireless advocate for his clients and is willing to endure great personal sacrifice—including torture in the Tower of London—on their behalf. Moreover, Shardlake adopts this client-centered approach to lawyering in the face of a legal profession that (in Shardlake’s semi-fictional world at least) is decidedly lawyer-centered and that looks after the interests of its own. Thus, Shardlake’s devotion to his clients is all the more impressive.

Yet, Shardlake’s devotion to zealous representation also illustrates some of the difficulties associated with the legal profession’s attempts to define the concept of professionalism. There is considerable debate as to whether a client-centered approach to lawyering should be the central component of professionalism.^[97] Critics have challenged the idea that a lawyer should use all lawful means to advance a client’s interests no matter how objectionable or counterproductive those interests might ultimately be. This conception of lawyering, critics argue, has led to overzealous representation and the tendency for lawyers to think of themselves solely in terms of hired guns, thereby avoiding any of the difficult moral questions that their actions raise.^[98] Commentators have raised concerns that the mantra of “zealous advocacy” has been used to justify dishonest and uncivil behavior in the litigation context and to justify lawyers’ dubious advice to their clients on questionable courses of conduct.^[99]

The Shardlake series reflects this tension as to the true meaning of professionalism. For example, in Sovereign, Shardlake refuses to drop a client’s appeal despite receiving tremendous pressure from powerful figures to do so. Yet Shardlake himself eventually wonders whether his refusal is based on a desire to further his client’s interests or a personal need to maintain his “badge” as an individual of integrity.^[100] A similar theme emerges in Heartstone when Shardlake refuses to abandon a matter, despite receiving instructions to do so from the party who enlisted him. The party in this instance is no less a figure than the Queen of England.^[101] As a result, the reader is left to wonder whether Shardlake’s personal need to see justice done has interfered with his inde­pendent professional judgment. While Shardlake is certainly diligent, the episode illu­strates the fine line between self-interest and devotion to one’s client. As discussed below, at least two other episodes in the series highlight the legal profession’s difficulties in settling on an acceptable formulation of “profes­sio­nalism” and the complications in relying on Shardlake as a symbol of professionalism.

b. The Bealknap Continuance Dilemma: Responding to a Request
for an Extension of Time

In Revelation, Shardlake is again set to face Bealknap in court, this time in an adverse possession matter in which Shardlake represents a squatter and Bealknap the landlord. Bealknap approaches Shardlake before court and confesses that he has not filed his client’s required proof of title to the land because he lost the deeds; he asks Shardlake to adjourn the case until Bealknap is able to find the papers. In doing so, Bealknap makes a direct plea to Shardlake’s sense of professional loyalty: “‘Assist me, Brother Shardlake,’ he whispered desperately. ‘Assist a fellow-lawyer.’” Shardlake responds by observing that “[m]any lawyers would have helped him for the sake of the fellowship of the bar; but I had always set my face against such arrangements at a client’s expense.”^[102] Thus, Shardlake refuses, citing his duty to his client. Bealknap, being Bealknap, lies to the judge about why the papers were not filed, gets caught in the lie, and has his case dismissed.

On one hand, faithful readers of the series have little sympathy for Bealknap to begin with, and even less after he attempts to lie to the judge. But Bealknap had also been seriously ill prior to the events, a fact of which Shardlake was aware; therefore, Bealknap’s failure to file may have been the result of excusable neglect. Moreover, by his own admission, Shardlake had only some “rather shadowy precedents” in support of his client’s position.^[103] There is no suggestion that Shardlake based his refusal on the fear that Bealknap might take the extra time to fabricate the deeds, nor does there appear to be any dispute that Bealknap’s client, in fact, possessed the deeds to the property. In light of these facts, should Shardlake have agreed to postpone the matter and let the case be decided on the merits?

The answer might depend on one’s view of professionalism. Shardlake’s client-centered conception of the term involves placing a client’s interest above “the fellowship of the bar.” Obviously, it is or should be a fundamental value of the legal profession that lawyers should generally place the interests of their clients above the interests of others.^[104] Yet some lawyers—perhaps not all even supporters of the professionalism movement—would argue that a lawyer in Shardlake’s situation should accommodate the request of the other lawyer. Numer­ous jurisdictions and professional associations have adopted lawyer civility codes, some of which deal with issues related to obtaining dismissals and default judgments.^[105] Many of these codes convey the idea that “[f]irst requests for rea­sonable extensions of time to respond to litigation deadlines . . . should ordinarily be granted as a matter of courtesy unless time is of the essence, or the client would be disadvantaged,” even if the other lawyer has refused to extend the same cour­tesy in the past.^[106] Thus, lawyers striving to live up to the core values of the profession, when confronted with Shardlake’s Bealknap dilemma, may find themselves receiving conflicting messages as to what those values are.

The Bealknap dilemma also raises the question of whether a lawyer in Shardlake’s situation has the authority to grant such a request. Shardlake made the decision to deny Bealknap’s request without consulting his client. This was in keeping with the practice and values of the legal profession at the time. According to one account, European lawyers of Shardlake’s era “arrogated to themselves total control over many—if not all—of their clients’ legal deci­sions.”^[107] Thus, Shardlake decided what was in the best interests of his client and acted accordingly in denying Bealknap’s request. Modern concep­tions of the attorney–client relationship, of course, place much greater emphasis on client decisionmaking. Indeed, it is not a stretch to say that promoting informed client decisionmaking is itself a fundamental value of the legal profession.^[108]

While clearly restating the value of client autonomy, ABA Model Rule 1.2(d) provides a somewhat ambiguous answer as to the appropriate course of action for a lawyer in Shardlake’s situation. Model Rule 1.2(d) explains that a lawyer “shall abide by a client’s decisions concerning the objectives of repre­sentation” and reasonably consult with the client concerning the means used to achieve those objectives.^[109] The ABA’s older Model Code of Professional Responsibility provided that while a lawyer “must seek the lawful objectives of [a] client,” a lawyer does not violate the duty of zealous representation by “acceding to reasonable requests of opposing counsel which do not prejudice the rights of [the] client” or “by treating with courtesy and consideration all persons involved in the legal process.”^[110] In that one passage, the Model Code emphasized three fundamental values of the legal profession: (1) zealous repre­sentation, (2) client autonomy, and (3) civility. But which value should prevail in the given situation? The Ethical Consideration (EC) accompanying the rule advises that:

In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer.^[111]

As an example of decisions that are exclusively for the client, the EC lists the question of whether the client “will waive his right to plead an affir­mative defense.”^[112]

Surely, if the decision whether to assert an affirmative defense is ultimately for the client to decide, then the decision to force the purported owner of property in a property dispute to prove that he actually possesses title to the land is for the client as well. But, again, there is no suggestion in Shardlake’s situation that this fact was in dispute. And Bealknap’s failure to file the title with the court was perhaps the result of a serious illness that nearly killed him—a fact of which Shardlake was aware. Is a lawyer in Shardlake’s situation being paternalistic by making the decision without consulting the client?^[113] Is this the kind of decision that is exclusively the client’s? If so, is that the outcome the legal profession wants? Ultimately, Shardlake’s dilemma illustrates the diffi­culty in reconciling some of the potentially conflicting core values of the legal profession and molding them into a coherent framework of “professionalism.”

c. The Bealknap Reporting Dilemma: Reporting the Misconduct
of Another Lawyer

Additionally, one must consider Shardlake’s attempt to use the threat of professional discipline against a fellow lawyer to his advantage. In Dark Fire, Shardlake threatens to inform the disciplinary authorities at Lincoln’s Inn of Bealknap’s ring of compurgators if Bealknap does not cooperate with his investigation into a threat to England’s security.^[114] Bealknap’s sideline is undoub­tedly a crime and one that reflects adversely on his fitness as a lawyer. Under modern standards, Shardlake would have a duty to report Bealknap’s misconduct to disciplinary authorities and would be subject to discipline for attempting to bargain away that duty.^[115] Likewise, under the 1402 Act regulat­ing the practice of law in the royal courts, Shardlake presumably swore an oath to give knowledge of another lawyer’s falsehood to the appropriate authority.^[116]

One facet of professionalism identified by numerous proponents is that lawyers must insist that other members of the profession comply with their own ethical obligations.^[117] While reporting Bealknap may have been ethically required by official policy, reporting the misconduct of another lawyer was discouraged as matter of professional norms in Shardlake’s fictional world.^[118] In light of the numerous Inns of Court rules designed to encourage collegiality among lawyers of the time, it seems entirely plausible that this was indeed the norm among non-fictional lawyers of the time as well.

In this respect, Shardlake’s willingness to risk his own professional standing by reporting a brother lawyer for serious misconduct seems particularly admirable. Yet, Shardlake’s justification for the threat is not to cleanse the profession of the likes of Bealknap, but to put pressure on Bealknap for use in a completely unrelated matter. Thus, Shardlake is willing to defy convention and report another lawyer’s serious professional misconduct (admirable), but only if the lawyer refuses to comply with Shardlake’s threat (not so admirable).

Aside from calling into question Shardlake’s status as a symbol of profes­sio­nalism, the episode also highlights the twenty-first-century legal profession’s somewhat ambiguous views on this facet of professionalism. The legal profession trumpets its commitment to self-regulation and memorializes that commitment in the form of ethical rules.^[119] Yet, as is the case in Shardlake’s world, the legal profession’s actual commitment to this ideal is suspect. The reporting requirement of Model Rule 8.3(a) is structured narrowly so as to limit a lawyer’s obligation to report a fellow lawyer, and lawyers routinely ignore the rule, even when applicable, for fear of being labeled a “rat.”^[120] Judges report a similar reluctance to refer lawyer misconduct to disciplinary authorities, despite being under a similar obligation.^[121] And despite numerous examples of lawyers being fired by their employers for fulfilling their ethical obligations under the rule by reporting misconduct, the legal profession has failed to adopt ethical rules specifically prohibiting such retaliation, and common law protec­tion for victims of such retaliation is spotty.^[122]

Thus, Shardlake’s response to Bealknap’s clear misconduct is repre­sentative of the legal profession’s difficulty in not only talking the talk of professionalism but actually walking the walk.

Conclusion

The character of Matthew Shardlake serves not only as an interpreter of the sixteenth century for modern readers, but as a mirror for the practice of law in the twenty-first century. C.J. Sansom has created a semi-fictional world in which lawyers face many of the same dilemmas they do today. The fact that Shardlake—a character defined by his sense of integrity—arrives at decisions that are subject to question, both under the prevailing professional standards of his own time and those of the twenty-first century, says at least as much about the legal profession’s conception of itself as it does the character of Shardlake. The series forces readers—and particularly lawyers—to confront their own conceptions of ethics and professionalism, while highlighting the moral and ethical ambiguity inherent in the decisions of its protagonist. While there is no doubt that Shardlake is a fictional character worthy of respect, the series stops short of presenting a one-dimensional role model. This is ultimately part of what makes the series so enjoyable and thought-provoking for lawyers.

First, in discrete but critical ways, the United States no longer represents the comparatively laissez-faire approach to federal business regulation. Rather, owing to its origins in the Progressive Era, U.S. federal law directs corporations toward noneconomic social goals, particularly combating corruption (for example, the Foreign Corrupt Practices Act) and promoting human rights (for example, the Alien Tort Statute or economic sanctions). By contrast, the alternative legal regime to which the United States is frequently compared—China—largely allows companies to pursue profits internationally without regard to their impact on corruption and human rights. Though it remains true that the U.S. regime and its principal alternative are distinguished by the extent to which the state restricts business conduct to achieve social goals, the roles are now reversed.

Second, the rise of an alternative model now substantially thwarts the goals of U.S. progressive regulation. Empirical research in political science and economics demonstrates that because the U.S. regime increases the costs of doing business in emerging markets, U.S. companies tend to invest less. The resulting void in capital is filled by companies from China and other countries that similarly lack prohibitions on bribery and human rights violations. Ironically, enforcement of U.S. progressivism creates the very conditions in which corruption and human rights violations occur.

In Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror,^[1] Gregory Fried and I argue that—unlike illegal surveillance, for example—torture is always wrong and cannot be condoned no matter how urgent the reason for resorting to it. Torture has been the subject of much reflective writing ever since our own territory was spectacularly shown on 9/11 to be vulnerable to terroristic attack by a well-organized and determined enemy. The interest was only heightened by the revelations that our government authorized and carried out torture in response. In this context, it is impossible to avoid mentioning the spur to such reflection provided by the popular television series, 24, with its now iconic protagonist, Jack Bauer. There is nothing unusual about condemning torture. What is less standard is refusing to allow even in theory any exceptions to the moral prohibition against torture: not for ticking bombs, not for child kidnappers, not for anything or anyone.

To be sure, many—perhaps most—commentators have ended up condemning torture in terms that leave little or no room for any justified use, though on reasoning that seems to leave some room for it after all. Henry Shue’s 1978 essay^[2] exemplifies the type. Having set out what is so morally awful about torture and also having distinguished it from killing in combat—distinguishing it in terms very like ours—Shue concludes by acknowledging that what he calls interrogational torture might in theory be justified, although terroristic torture could never be.^[3] But he locks this theoretical door with a practical key, one which many invoke in a strategy of confession and avoidance: Interrogational torture almost always has a terroristic element to it. We cannot have the requisite certainty that this is a ticking bomb case in the sense that the bomb will go off unless defused in time, that we do not have other means to defuse it, that we have the right person and that he was culpably involved in planting the bomb, that the torture will reliably produce the needed infor­ma­tion, and, most important of all, that the use of torture can be institutionally confined to just such a rare case—that it will not have institutional, social, and psychological metastatic effects. Jeremy Waldron expressed the last concern most powerfully in his article Torture and Positive Law: Jurisprudence for the White House.^[4] He argues that torture cannot be allowed by law because then law becomes corrupted in its essence.^[5] But in the end, even Waldron’s account is about law, leaving open the possibility that if one were willing to sacrifice—or risk sacrificing—law, there may be occasions when an individual or an official may be justified in torturing, perhaps even be morally obliged to torture.

Others are more forthright. Alan Dershowitz famously and with admirable rigor concludes that because there will be instances in which torture is justified—and more importantly, will be used whether it is allowed or not—the law and society are best protected against the metastatic effect of allowing torture by regularizing it in a judicial warrant procedure: his torture warrant proposal.^[6] It should be said that this is not so far off what actually hap­pened in the George W. Bush Administration. The highest levels of government—perhaps the President himself—gave explicit permission to use certain techniques in some very limited cases. Surely this was a higher bar than a magistrate’s warrant. And yet, we know that even then the metastasis took place, and quite virulently.^[7] Richard Posner, on the other hand, acknowledging the evil of torture but also its necessity on rare occasions, concluded that it would be best to ban it outright but to make unacknowledged exceptions in rare cases, because any regularized procedure would lead to routinization and overuse.^[8]

Implicated in this controversy is a line of argument that goes back at least to Machiavelli and has been restated and honed by Max Weber in his essay Politics as a Vocation,^[9] discussed further by Michael Walzer in his remarka­ble Political Action: The Problem of Dirty Hands,^[10] and definitively surveyed by János Kis in his Politics as a Moral Problem.^[11] Machiavelli, Weber, Walzer, and Kis all affirm that certain acts are morally wrong (none talk about torture; lying and killing innocent persons are the examples they use), but concede that political actors may be justified in committing them if done in the public interest.

The thesis of Because It Is Wrong and of this Essay is more radical: Torture is never morally permissible—not under any circumstances, and not by any person, private or official; not because allowing it sometimes might lead to other bad consequences, but because it is always wrong. Even if it led to nothing other than itself. Even if it led to very good consequences. Even if it averted disastrous consequences. In order to make the point as emphatically as possible, the book puts at the head of the introductory chapter Leon Golub’s painting, Interrogation I, by way of ostensive definition: You must never do that; you must never order that it be done—no matter what. In that painting, a naked man hangs from the ceiling by his feet, his hands tied behind his back. On either side of him stands a jackbooted soldier, one of whom holds a truncheon, poised to strike the body before him. The faces of the two soldiers are business-like, indifferent. The victim’s face is indistinct because his head is bent backward and his teeth clenched in pain.

Leon Golub, Interrogation 1 (1980–81), The Broad Art Foundation,

Santa Monica, http://broadartfoundation.org/artist_29.html

It is this absolute position against torture that has met with objections even from sober, thoughtful, humane individuals. Surely, it has been objected, if an atomic bomb on a delayed fuse were planted somewhere in Chicago and a terrorist who knew where it was had been captured, it cannot be that the President would not (and should not) authorize that the man be tortured if necessary to find and defuse the bomb. Particularly disturbing is the fact that, in 1978 in Right and Wrong, I wrote:

[W]e can imagine extreme cases where killing an innocent person may save a whole nation. In such cases it seems fanatical to maintain the absoluteness of the judgment, to do right even if the heavens will in fact fall. And so the catastrophic may cause the absoluteness of right and wrong to yield, but even then it would be a non sequitur to argue (as consequentialists are fond of doing) that this proves that judgments of right and wrong are always a matter of degree, depending on the relative goods to be attained and harms to be avoided. I believe, on the contrary, that the concept of the catastrophic is a distinct concept just because it identifies the extreme situations in which the usual categories of judgment (including the categories of right and wrong) no longer apply. At the other end of the spectrum, there is the concept of the trivial, the de minimis where the absolute categories do not yet apply. And the trivial also does not prove that right and wrong are really only a matter of degree. It is because of these complexities and because the term absolute is really only suggestive of a more complex structure, that I also refer to the norms of right and wrong not as absolute but as categorical.^[12]

I was wrong in 1978.^[13] I argue here and in Because It Is Wrong that torture is morally a clearer case than killing. Many think this is compounding the unrea­sonableness of our position. As Moshe Halbertal pointed out, when the torture is over, you are still alive. Who would not rather be tortured than killed?

Look again at Golub’s painting. “God created man in his own image, in the image of God he created him.”^[14] That is the image of God that hangs between the two jackbooted officers. Many find this line of argument dis­turbing, not because it substitutes evocation for argument but because it seems to make the argument depend on religious premises that many do not share, rather than on weaker—that is, more general—premises. The argument about the absolute prohibition of torture does not depend on such religious premises—premises that in any event I would be quite reluctant to affirm. Hence the title of this Essay. Is an absolute prohibition on torture plausible, apart from an appeal to a heaven in which everything comes out for the best after all? The appeal to heaven, it should be said, is a kind of supernatural utilitarianism after all, while the energy in the argument is to reject a universal, overriding consequentialism. More to the point is an appeal to the sacred, a value than which none is greater.

I.

Now, ticking bombs and Jack Bauer notwithstanding, the absolute prohi­bition of torture is not so far-fetched as not to be worth reflecting on. After all, not only has such a prohibition been adopted in international treaties^[15] and a federal statute^[16] and proclaimed in the 1993 Papal Encyclical Veritatis Splendor^[17]—which, given the Catholic Church’s long association with torture, is a problematic authority—but, most compellingly, the prohibition was included in the 1863 Lieber Code, the first codification of the laws of war and promulgated on the orders and authority of Abraham Lincoln. In Article 15, the Code states quite realistically that “military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruc­tion is incidentally unavoidable in the armed contests of the war;” but in the next Article the Code states categorically that “military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.”^[18] And if this might be thought not to refer to torture for life-saving rather than judicial purposes, here is what Francis Lieber, author of the Code, said in his lectures on the law and usages of war at Columbia Law School:

[C]ruelty consists of inflicting pain for the sake of pain . . . . We mean by “cruelty” in the law of war unnecessary infliction of pain, pain for its own sake to satisfy the lust of revenge or a fiendish hatred; we even call cruel in modern law of war infliction of pain though it were considered necessary. No doubt the whole world would condemn it as cruel, if pain were inflicted upon an enemy to extract an important secret—e.g., by application of torture. Nay, we go further in modern times. Although the salutary fear of retaliation is one of the most efficient regulations and curbs in modern Law of War, yet would we not approve of cruelty by way of retaliation against savages or those who have sunk back into this state. The late proclamation of General Halleck, declaring himself ready for retaliation concerning destruction of property, where necessary, but distinctly telling his officers and soldiers not to retaliate cruelly, is in the true spirit. Can we roast Indians, though they may have roasted one of our own?

Simple infliction of death is not considered cruelty.^[19]

Nor is torture the only act that is absolutely wrong. I would include in such a list judicial killing of an innocent person (judicial murder),^[20] abuse of children, sexual violence and degradation, and more complexly the enslavement of innocent persons. But let torture be the stand-in for all of these. I want first to set out the logical structure of such absolute prohibitions. This is best introduced by a plausible, but incorrect, account of all such evils. Might it not be said, on this account, that they share the characteristic that they are all very bad? That is, the harms they do are exceptionally weighty.

This account is wrong for several reasons. First, I would not want to say that there is no good that can outweigh evils, as if outweighing were the issue. Take slavery: If it were a matter of outweighing, might not some enormous accomplishment—say, the construction of a road system that will serve millions for decades to come—outweigh the enslavement under mild conditions for a limited time of a not-large number of people? And as for torture, might not the waterboarding^[21] of a single individual to save a city present a balance of good and bad such that the former far outweighs the latter? But that is just the claim I deny. Nor can the outweighing be accomplished by giving a very large weight to the evil aspect of the equation.

All this seems a philosopher’s game about how to reformulate a puzzle so that it may seem to be made to disappear. But of course it does not disappear. The perfectly understandable response of reasonable people is to dismiss what Gregory Fried calls hypertheticals as so unrealistic that they are the equivalent of asking about the laws of physics in some alternative universe. Another way of dealing with such hypertheticals^[22] is the one I took in Right and Wrong: At the margins there are cases either so trivial or so extreme that our ordinary ethi­cal reflexes and premises do not apply.^[23] János Kis makes the point that deontolog­i­cal constraints (because that is what we are talking about) “admit of a threshold.”^[24]

To make an analogy to physics: Within the range of ordinary experience, Newtonian addition of velocities works very well; it is only when we pass certain thresholds that relativistic analyses must the invoked. And so also with quantum mechanical indeterminacy. But these analogies in fact should intensify, rather than assuage, our perplexities and unease. After all, relativistic and quantum mechanical physics cannot be and have not been relegated to the laboratory or the lecture hall: They are in daily use in practical applica­tions, applications on which we have come to rely. Similarly, there is a burgeoning literature on the analytics of very low probability, high value (positive or negative) events—for instance, an asteroid impact that would have an effect similar to the great Cretaceous extinction.^[25]

But less fantastically, the threshold thesis is vulnerable to probabil­is­tic probing. How certain must the threshold-crossing catastrophic threat (ticking bomb) be to authorize an otherwise morally forbidden act? As the certainty goes down—and the standard confession-and-avoidance responses depend on the uncertainty either of the event or of the efficacy of torture as a response—do we then re-cross the disaster threshold so that ordinary moral prohibitions obtain?

The threshold analysis is also vulnerable along another axis: Just how many persons must be threatened by the terrorist’s bomb? It has been suggested that saving even one innocent life might justify recourse to torture. The famous case is that of the German police officer who successfully threatened to torture a kidnapper in order to discover his young victim’s whereabouts.^[26] The officer was disciplined and the victim sadly was already dead. Did the officer really do the wrong thing? Would he have been wrong to carry out his threat? Would it have mattered if there had been not one but several victims? How many? Finally, there is another qualitative, not quantitative, axis: Even if it were justi­fiable to torture the terrorist himself, what if for some reason he were immune to torture—psychologically hardened to it or beyond reach? Would it then be justifiable to torture his young child, if that might work? And of course, this case too can then also be moved along the several quantitative axes.

II.

So neither the threshold analysis nor the confession-and-avoidance response truly avoid the confrontation between the strong moral intuition against torture and the permissibility, even the duty, to order torture in order to avert a severe harm to many. It is the confrontation between what Weber called Verantwortungsethik (the ethics of responsibility) and Gesinningsethik (the ethics of conscience). Nor should we try to avoid the confrontation because it displays some deep truths about our humanity—what Kant called our status as rational beings, albeit embodied beings.

III.

Our humanity is a conception. Like a Leibnizian monad, it has several separately articulable elements, but they only work and make sense as they make a coordinated whole. The elements are: the formal distinction between a constraint and an end, and how these two elements relate to each other; the related concepts of agency and responsibility—what Weber noted in the distinc­tion between Verantwortungsethik and Gesinnungsethik; and the articulation with each other of what Ronald Dworkin has recently usefully designated as ethics—the kind of life we make for ourselves, our responsibility for making the best life we can for ourselves—and morals—how we relate to others, our responsibility to others.^[27] Dworkin binds them together in the concept of dig­nity.^[28] This is a concept that embraces a certain aesthetic as well as an ethic and morality. Kant’s quite equivalent concept is respect, respect for humanity in one’s own person and the persons of all others.^[29]

Although one can break into this circle of concepts almost anywhere, I start with Weber’s contrast between Verantwortungsethik and Gesinnungsethik, the ethics of responsibility and the ethics of conscience. This is the familiar contrast between consequentialist and deontological ethics, although Weber’s account is both richer and less abstract. The responsible political leader weighs consequences and decides accordingly what will produce the best outcome for the people for whom he is responsible—what will assure safety and prosperity, what will avoid suffering and ruin. The person of conscience, described by Weber as a utopian prophet, is moved by ideals and pursues them no matter the cost to the people for whom he is responsible. This does not correspond exactly to the consequentialist/deontological distinction. Weber’s utopian may in fact be as ruthless as Pol Pot in the pursuit of his idea. What distinguishes him from the responsible leader is his refusal to accom­mo­date to reality, his ruthless willingness to see his project and his people end in ruin rather than compromise. But in that single-minded pursuit, the utopian may be ready to lie, cheat, steal, murder the innocent, or torture. It all depends, of course, on what his utopian vision might be, what his conscience demands of him. The contrast does not quite bring out what I and others in the dirty-hands line of discussion have in mind. The political leader who Walzer, Kis, Machiavelli (perhaps), and I have in mind is one who considers consequences but stops short at the use of certain means.

Weber’s two categories contrast an unworldly, unreasonable, perhaps fanatic prophet–leader with the practical, pragmatic, and hard-headed politician. The former may be inspiring but is likely to bring down ruin on his head and the heads of all around him. The latter may end up doing some fairly unsavory things, but he and his people will prosper in the long run or live to fight another day. As Weber writes, “[H]e who seeks the salvation of the soul, of his own or of others, should not seek it along the avenue of politics.”^[30] Machiavelli’s example is of Lorenzo de Medici, who preserved the independence of the people of Florence, but at the cost of his and their excommunication.^[31]

This contrast puts one in mind of the criticism of Kant’s moral philoso­phy, current from almost the moment that it was published: The demands and status of the categorical imperative are unreasonable, inhuman, and, worst of all, empty or circular. The criticism sees Kant as proclaiming that nothing is of intrinsic value except a good will; that is, the determination to have one’s conduct governed by a will to comply with the categorical imperative, with maxims that one can will as universal laws—laws governing one’s own and every rational being’s will. But, so goes the criticism, if only compliance with universal laws is of intrinsic value, then what are the universal laws supposed to be about—except themselves? And in that case, people have no material motives, no goals to pursue, such that the categorical imperative can judge them. And it must be said that some of Kant’s account lays him open to this criticism. But it is an ungenerous reading of the great man’s works, and like all ungener­ous readings it misses an opportunity to deepen understanding.^[32]

The better way to read Kant is to acknowledge, as he does in many places, that human beings have material needs and aspirations, whose fulfillment is a proper end of human striving. Indeed, without that premise, the many passages that condemn the unnecessary or improper frustration of that striving—like a person’s indolent or quietistic abandonment of his own such striving—is a violation of a duty to oneself and others. The correct way to understand Kant is to see the categorical imperative—in its three formulations—as impos­ing what in modern parlance are called constraints on the person’s human striving. That conception would not only allow, but would celebrate, those strivings and their satisfaction, so long as that striving does not transgress the moral law and the striving is carried forward in ways that are consistent with the striving—whatever their goal might be—of other human beings.

I would add the observation that neither Kant nor his followers, whether they be Ronald Dworkin or Robert Nozick or John Rawls, claim that all striving is morally equivalent: Some striving is acceptable, some humanly degraded, and some sublime.^[33] But whatever the judgment on humanity’s material ends, the categorical imperative requires that those ends be pursued subject to the constraints of the moral law. This is the old distinction between the right and the good, and the misunderstood claim that the right is prior to the good. The good refers to the ends of our striving, the right to the constraints on that striving, and the latter has priority over the former only in the sense that the urgency of the good cannot override the constraints. But in a real sense, the good has priority over the right because without some ends for our striving, there would be nothing to constrain. Indeed the two are coordinated and together make up a single moral monad. Weber, in his somewhat rambling but deep discourse on politics as a vocation, may be taken to see this point, for in his peroration he proclaims:

I am under the impression that in nine out of ten cases I deal with windbags who do not fully realize what they take upon themselves but who intoxicate themselves with romantic sensations. From a human point of view this is not very interesting to me, nor does it move me profoundly. However, it is immensely moving when a mature man—no matter whether old or young in years—is aware of a respon­si­bil­ity for the consequences of his conduct and really feels such responsibility with heart and soul. He then acts by following an ethic of responsibility and somewhere he reaches the point where he says: “Here I stand; I can do no other.” That is something genuinely human and moving. And every one of us who is not spiritually dead must realize the possibility of finding himself at some time in that position. In so far as this is true, an ethic of ultimate ends and an ethic of respon­sibility are not absolute contrasts but rather supplements) which only in unison constitute a genuine man—a man who can have the “calling for politics.”^[34]

But is this not just what Kant and the Kantians are saying? You must feel responsible for the consequences of your choices, but there are things you must refuse to do: “[The mature person] then acts by following an ethic of responsibility and somewhere he reaches the point where he says: ‘Here I stand; I can do no other.’” Is that not just the Kantian pursuit of the good, but subject to constraints? I shall come to a discussion of what those constraints might be and why they have the moral hold on us they do: “‘Here I stand; I can do no other.’” But here I continue to display the structure of this argument, its arti­culable and articulated parts.

IV.

A frequent objection to the constraints view goes this way: Some acts are so vile—for instance, torture and the killing of innocents—that they are categorically precluded. But if they are so vile, surely a virtuous political leader may, must, turn to these if he responsibly and reasonably concludes they are necessary to head off a regime in which such evils and worse will become the general rule applied to whole nations and continents. Our leaders in World War II must have believed that the reign of systematic, mechanized, pervasive, and unrestrained barbarism threatened by the Axis powers justified any such things in order that there not be vastly more of them and for decades to come. However compelling such reasoning may seem, it does not contradict—though it may undermine—the analysis I put forward. Such reasoning mistakes the terms of the analysis. A constraint is not an evil of the same sort as is calculated and weighed in casting the balance of good and evil in a course of action. The balance is cast within the frame of the constraints, and that frame is not part of the picture. Whether in the end you are convinced by this analysis, it is not vulnerable to this logical, this formal, objection. The categorical wrongs and the constraints are, to be sure, evils, but they are not weighed up with other evils to arrive at a balance of advantages. It misses the point of calling torture categorically wrong to argue that because torture is very, very evil therefore we should have as little as possible of it in the world. If that were the correct analysis, then it would be permissible—indeed required—on occasion to resort to torture in order to reduce the overall sum of torture in the world: for instance, to torture a single torturer into revealing where his henchmen in a torture ring are hiding.

This formal feature of the argument articulates with two other elements: human freedom and personal responsibility. If the categorical quality of the right applied as well to the good, then we should not cease—not for a moment, though perhaps only to rest so we could start up again with renewed energy—to act to minimize the instances of that evil in the whole world. And more, if the evil of torture or the killing of innocents is quantifiable and must be reduced by this calculation, then so must the corresponding good be weighed against it: the good of human delight, warm relationships, the glories of the arts and sciences, and the whole cast in one vast balance. Never mind how this calculation even theoretically, approximately, or locally, could be cast; think what this would do to our human freedom.^[35] For if there were a moral obligation to minimize evil and to maximize the good everywhere and for everyone, then no one would be allowed moral space or time for his own projects. However weighty a person’s project might be, it could not be that it was weighty enough to override the compound claims of all humanity. At best it would have just the weight of one project among many billions. Indeed, the entailment is more radical even than that—for if the greater well-being alone is the only overriding project of all, the very concept of an individual project disappears—for just as the greatest good of the greatest number must be my overriding project, so must it be the overriding project of everyone beside me and the notion of an individual project, or an individual good, disappears in an endless loop of utilitarian universal bene­volence. Nor is it any good to say that every individual is liable only to devote X percent of his energy to the well-being of others, the remainder being reserved to himself and his own projects—like disposable income after payment of all one’s taxes. Whatever that percentage might be, is it the same for all? Or is there perhaps progressive obligation, with the more fortunate bearing a larger obligation, as with a progressive income tax?

The objection might then be made that if our own projects have this transcendent weight, why should anyone stop at anything in pursuing them? From counting some things as so evil—wrong—that we must not do them no matter what, we seem to have come to a point where we might say that a person may do anything in pursuit of his individual project. And this is just the mirror image of the contention that a person may do nothing in pursuit of his individual project. If it is indeed the case that some things are so evil that we may not do them no matter what, how do we arrest the logical slide to an all-encompassing obligation to stop all such evils in the world: all torture, all killing of innocents, all suffering of children? It is only by marking a sharp distinction between what we do and what we allow to happen through the doing of others—or no one—that the value of particular personal projects can be rescued from being gobbled up by a kind of consequential absolutism. Attributing special significance to personal agency provides a coordinated solution to two problems we have been looking at: the cate­gor­ical prohibition of torture or killing of innocents, and the consuming obligation of universal good. While there is no obligation to devote every personal resource and every waking moment to minimizing the amount of torture in the world, there is an absolute prohibition on becoming the agent of torture (a torturer) oneself. The former leaves room most of the time for personal values and projects. The latter (the absolute prohibition) may sometimes entail great, even final, costs to oneself and others. One’s projects are in the realm of the good. The absolute prohibitions constitute the frame in which the good is pursued, the frame of the right.^[36]

Finally, it should be clear that the good need not on this view be seen as a matter of mere subjective preference leaving no ground for judging the relative value, as Jeremy Bentham put it, of push-pin or poetry.^[37] Rawls, in A Theory of Justice, offers a preliminary sketch of a theory of the good.^[38] His version of push-pin is counting blades of grass in well-trimmed lawns,^[39] and Dworkin’s is collecting matchbook covers^[40]—except, unlike Bentham, they view these as obvious refutations of Bentham’s thesis. I shall not try to offer a comprehensive theory of the good, nor how it articulates with the right. Kant, Rawls, and Dworkin all make proposals and the subject is of surpassing interest, difficulty, and importance. Instead, I want to come back to the dilemma with which we started: Can it really be required that we not torture one person in order to save a city; and does the answer differ depending on whether we act on our own or as political leaders responsible for the welfare of society?

V.

There is an appeal to the idea of the sacred and the violation of the image of God to account for and justify the absolute prohibition on torture. Account for it, it may, but how—in secular terms—does it justify the absolute prohibition? Is there a secular version of the sacred? For Kant, as I have said, it is the concept of respect—respect for humanity in one’s own person or the person of another—and for Dworkin, it is dignity. The articulated unity of the right and the good are the argument behind these formulations. We are striving, valuing, judging, thinking beings and not just—as a simplified Benthamite utilitarianism would have it—loci of pleasure and pain. It may be thought old hat, but it is worth remembering Rawls’s rejection of Benthamite utilitarianism as a principle of social justice in favor of his two principles of justice. I draw passages from § 6 of A Theory of Justice (“Some Related Contrasts [To Utilitarianism]”):

[W]e distinguish as a matter of principle between the claims of liberty and right on the one hand and the desirability of increasing aggregate social welfare on the other . . . Each member of society is thought to have an inviolability founded on justice or, as some would say, on natural right, which even the welfare of everyone else cannot override. . . .

. . . [I]f we assume that the correct regulative principle for anything depends on the nature of that thing, and that the plurality of distinct persons with separate systems of ends is an essential feature of human societies, we should not expect the principles of social choice to be utilitarian . . . To do this is not to take seriously the plurality and distinctness of individuals . . . . All ethical doctrines worth our attention take their consequences into account in judging rightness. One which did not would simply be irrational, crazy . . . The principles of right . . . put limits on which satisfactions have value. . . . A just social system defines the scope within which individuals must develop their aims . . . The priority of justice is accounted for, in part, by holding that the interests requiring the violation of justice have no value.^[41]

Although Rawls makes his argument in the cooler context of principles of justice, more specifically distributive justice, it extends naturally and inevitably to all aspects of the limits on how we may treat each other. If we must not accept the lower welfare of some as a price for the greater prosperity of the whole—if, for instance, the enslavement of a portion of the population cannot be justified by the greatly increased well-being, safety, or delight of the whole—then the same argument would forbid torturing a few—or even one—to procure that well-being and security. And don’t say, “But we are not talking about torturing the innocent, only the terrorist we have captured, who . . . ,” and so on. Remember the terrorist proof against pain but not against the suffering inflicted on his child, and watch your objection unravel.

This conception does not ignore or devalue the ends we pursue, or the pains and pleasures we experience—it is not, in Rawls’s word, “crazy”—but it does put them in a frame; it does constrain them, and sometimes the constraints bear down hard. It does not ignore our ends as human beings, but by putting them in the frame of right, it gives them a value they could never have in a global, undifferentiated aggregation of satisfaction. Rawls relates that framework conception to the distinctness of persons. I would gloss that with the Kantian notion of persons as judging, choosing, valuing entities—what Kant calls free, rational beings. The frame and its content are correlated, and the standard locution of the priority of the right over the good misleads. The right, the constraints, without the good—that is, the projects, affections, pains, and pleasures, the pursuit of which is constrained—is empty; the ends, the pursuits, without the framing constraints is formless and incoherent. Each alone is valueless. And what are those constraints? They are described variously by Rawls, Kant, Dworkin, and many others, but the conception, the argument on which these accounts converge, makes the very capacity to choose ends, to choose one’s good within the constraints of the right, as constituting a person’s distinctive humanity. It is that capacity that makes one’s projects valuable, makes the persons pursuing those projects valuable, and for that reason makes us all valuable in the same way and to the same degree. Finally, it is the congeries of frame and content that explains why our individual projects have value as our projects and not as infinitesimal contributions to some global soup of generalized value. All this is summed up in the Kantian conception of respect: respect for humanity whether in our own person or in the person of another.

To disrespect another is to disrespect oneself, to devalue one’s own projects, or to treat oneself merely as a goldfish one feeds rather than a human person with human ends. Rawls and Dworkin write of relatively civilized forms of disrespect, the kinds we meet with in an active democratic society. Torture, killing of innocents, and frank enslavement should be easier, but they stymie us for another reason. Injustices of the sort Rawls and Dworkin talk about are generally structural and institutional and admit of considerable nuance—after all, Rawls takes us down three steps of generalization before we get to an individual act (original position, constitution, legislation).^[42] My claim is that there are particular acts that are categorically wrong no matter what the constitutional or institutional setting: No legislature may authorize them; no higher level official may order them; no officer may inflict them. And no threat can justify them. That is not a kind of case my authorities put to themselves.

How do we explain—other than by what I have described as confession and avoidance—a result where the suffering visited on one (or 100,000) will avoid the suffering of many? Let us concede that we and many will survive, but we must go on to ask—what shall we survive as? This is a shorthand way of suggesting that, for instance, the physician who saves several young, vigorous patients by killing an older, infirm patient to allow the transplant of his organs is no longer a physician and decent man, but a murderer; and his patients survive, but survive as cannibals. The nation that survives by treachery and inhumanity in warfare survives and prospers, but survives no longer as a democracy constituted by principles of humanity and decency. Athens, on Thucydides’s account of the famous Melian Dialogue in the Peloponnesian War,^[43] prospered, but as a predator state, an historic paradigm of shame and lost honor. If survival were the ultimate criterion of choice, men and women would never risk, or indeed give, their lives in service of an ideal. Mortality as the frame for our choices means that all living (well or ill) is an expenditure of life and not its prolongation. All living is dying.

But evocative as that may be, it is not quite an argument. Casting the evocation in cooler terms, I come back to the frame analogy. If an action, a choice of pursuit of the good, has value only within a frame, and if an act of torture can be shown to be outside the frame—not just an evil to be endured but a wrong not to be committed—then the argument of the balance of advantage does not go through. So why is torture wrong? Compare torture to violence up to the point of killing in battle. In battle, the combatants seek nonlethal goals but are prepared to use force to the point of killing to attain them, and the opponent both defends against the attack and corres­pon­dingly seeks to attain his goal in battle. Both may entail killing, and in both to shrink from killing may be to abandon one’s goal in the face of resistance by an adversary. Section 15 of the Lieber Code—just before the one quoted at the outset—states:

Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is inci­den­tally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the Army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into dur­ing the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.^[44]

The Kantian point is that we cannot morally be required to give up our peaceful and moral goals because of the wrongful violence of an enemy, for to do so would make our moral right to pursue goals, to have a good we embrace, hostage to the unjust violence of an adversary. Pacifism may be a choice, a good we embrace, but it is not a moral requirement. The military concept that expresses this system of permissions and constraints goes by the archaic but still invoked concept of chivalry.^[45] Torture, by contrast, aims not simply to stop an enemy—even by killing him—but seeks to defeat him by causing his physical nature to overwhelm his mind with pain and to overwhelm his will so that he becomes inhabited by pain. The morally recognizable person is suspended, and he is turned into a mere physical entity, an animal constituted by pain who retains human faculties—of speech and choice—only as they are mastered by pain. The frame of right and wrong is the frame of our humanity, our moral anthropology. Torture seeks to destroy that humanity in a quite precise way: A moral being is one capable of choice, of moral deliberation. It is the point of torture not to destroy the person—as in killing—but to destroy him as an entity capable of choice. Making an offer the victim cannot refuse is to mobilize the capacity of choice; torture intends to overwhelm it.^[46] Thus, torture quite literally contravenes the injunction to respect humanity, whether in one’s own person or the person of another. The ugli­ness of the torture pic­tured in Interrogation I is quite dif­ferent from the ugli­ness of, say, Thomas Eakins’s The Gross Clinic, which shows the distin­guished surgeon oper­at­ing before an amphitheater of students and observers—with one squea­mish partici­pant off to the side shielding his gaze. But what Eakins portrays is not moral ugliness; it is not the moral destruction of a human being.

Thomas Eakins, The Gross Clinic (1875), Philadelphia Museum of Art, Philadelphia, http://www.philamuseum.org/collections/permanent/299524.html

Now back to heaven and the principal conundrum I present. Does not my reference to these depictions really make the point against me? Is not the public officer who will not use torture when it may save many not just displaying a moral squeamishness akin to that of the person at the left of the Eakins painting? And just as a surgeon who cannot stand the sight of blood is not fit to practice surgery, is not a statesman who will not—when necessary—order torture or the dropping of the atom bomb unfit to lead? Maybe such squeamishness will be rewarded in heaven and the innocents who suffer as a result will find solace there too, but one is entitled to insist that such hard results be explained here below. After all, it is a matter of survival. But surviving as a torturer, as a monster, is not to survive at all. But exactly what does that mean? Truman did drop the bomb; the allies did engage in terror bombing during World War II; and the Bush Administration did waterboard. And here we all still are. Is that not the analogy to Samuel Johnson’s famous response upon hearing Bishop Berkeley’s argument about the immateriality of material objects: “Johnson answered, striking his foot with mighty force against a large stone, till he rebounded from it—‘I refute it thus.’”^[47]

To argue that there are practical, factual sequelae to these moral transgressions—lost prestige or greater liability that torture will be used against our captured personnel—is to revert to a form of argument I have tried to eschew. But notice the “and here we all are” refutation is, strictly speaking, beside the point, or at any rate circular. It assumes the validity of the conse­quentialist thesis in offering a consequentialist response, or by demanding a conse­quentialist justification for the moral prohibition. Notice how strong the consequentialist thrust is: It causes us to seek desperately for consequences after all, somewhere, somehow for transgressions we know to be wrong, whether there are bad consequences or not. That is why I entitle this Essay Heaven, after that desperate urge. But heaven does not solve the dilemma; it spoils it.

I want to confront us at the end with the stark fact that the only certain consequence, the only necessary and morally sufficient consequence of a wrong act, is the condemnation of that act as wrong, and that is just the correlative of what Kant calls acting for the sake of the moral law alone. We may very well accomplish nothing more, nothing else than that we do right and avoid wrong in refraining from torturing a terrorist, in freeing a man unjustly accused whom it would be convenient to punish. Even to say that, in making those choices, we affirm our moral humanity almost misses the point—as if we made these decisions in order to affirm that humanity. It is better to say that in acting thus we are moral men and women. Max Weber’s essay is so moving not just because of the depth of his realization of the difficulties and moral heroism that politics as a vocation requires, but because he saw that, at the end of the line, calculation runs out:

[I]t is immensely moving when a mature man—no matter whether old or young in years—is aware of a responsibility for the consequences of his conduct and really feels such responsibility with heart and soul. He then acts by following an ethic of responsibility and somewhere he reaches the point where he says: “Here I stand; I can do no other.” That is something genuinely human and moving.^[48]

Torture is that point. Lincoln’s Code, as John Witt has recently called General Orders No. 100, the code drafted by Lieber,^[49] is a hard-headed and even violent code. It is a code for warriors, but like Weber’s mature man—and Lincoln and Lieber were mature men—it reaches a point where it says, in effect: “Here we stand; we can do no other.” Here again is Article 16:

Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.^[50]

VI.

Finally, by way of coda, let us reflect on whether those who ordered and made way for torture should be prosecuted and punished. One view is straightforward. They committed crimes, crimes more serious than most we do prosecute and condemn. To draw back is to deny the very thing that the whole argument proclaimed. This is a Burkean argument about national charac­ter and how devastating it can be to meddle with shared ethical instincts cultivated over generations. Torture is the habit of tyranny, not of free republics, and it cannot simply be switched off and on. But another view has it that the precedent of an administration prosecuting the high officers of its prede­cessor regime—the sordid history of the independent counsel law—is itself contrary to the practice of democracies; we do not have a revolutionary regime punishing the criminals of a tyranny it overthrew and replaced, but an orderly democratic succession that repudiated the previous one; and the crimes—though crimes they may have been—were committed not in a war of aggres­sion but in order to protect us against an enemy who did not hesitate to use torture and mass killing of innocents.^[51]

The first view, requiring punishment, appears to be a consequentialist, causal argument, but the causation is what many years ago I called “moral causation”: It follows into action the entailments of a moral argument.^[52] Indeed, Kant is more on that side than the second. In Rechstlehre, he famously proclaims:

[W]oe to him who creeps through the serpent-windings of utilita­rianism to discover some advantage that may discharge him from the justice of punishment, or even from the due measure of it, according to the Pharisaic maxim: “It is better that one man should die than that the whole people should perish.” For if justice and righteousness perish, human life would no longer have any value in the world.^[53]

Certainly the last clause affirms that no consideration of advantage (what I have called the good) can justify a violation of right. This is Kant’s answer to the ticking bomb hyperthetical—as it is mine. But this argument is embedded in a larger argument that urges that justice condemn even not punishing the guilty, rather than condemn only punishing, as the Pharisees might, the innocent. Kant is emphatic in finding justice in society’s response to injustice, for example, in the form of the execution of the murderer:

His death, however, must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abom­i­na­ble. Even if a civil society resolved to dissolve itself with the consent of all its members—as might be supposed in the case of a people inhabiting an island resolving to separate and scatter themselves throughout the whole world—the last murderer lying in the prison ought to be executed before the resolution was carried out. This ought to be done in order that every one may realize the desert of his deeds, and that blood-guiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of justice.”^[54]

The best I can make of this is: If you have a system of just punishment and condemnation as part of a system of justice in an organized society and that society assumes the right to use force against the unjust in order to maintain justice, then withholding of punishment so contradicts and undermines that system of justice—to which persons have willingly and rightly submitted—that it cannot absolve for any reason a wrongdoer from just punishment. Perhaps the victim, who may now be dead, may do that, but the society that undertook to protect him may not.

Any unease may be connected to a more general unease about Kant’s theory of punishment. I am of course convinced that personal culpability is a necessary condition of punishment. I am less sure that it is a sufficient condi­tion. Rather, culpability is the condition that justifies using force against the offender in certain ways: for deterrence or incapacitation. As to the death penalty, in the same section just quoted and in which Kant proclaims the retributive necessity of executing the last remaining convicted murderer in a disbanding society, Kant insists that “[h]is death . . . must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable.”^[55] Now, I believe there is no way that the state can put to death a prisoner wholly in its power that would not “make the humanity suffering in his person loathsome or abominable.” And execution by lethal injec­tion, a gruesome parody of medical treatment, is by no means the least offensive means of execution. But that is a topic for another day. Kant’s Mikado-like^[56] insistence that the punishment not only fit the crime, but mirror it, is a reversion to consequentialism, such that crime after all be answered by condign punishment—that here on earth there be consequences to right and wrong that mimic what Dante imagined would happen in heaven and hell. Here—I would say confidently only that society is morally obliged—we are morally obliged—to shame and condemn those who have tortured, those who have ordered torture, and those who have justified it. By treating as honored fellow citizens those who have dishonored themselves as human beings, we dishonor ourselves.

In The Long, Hot Summer,^[1] Paul Newman plays a tanned, physically fit drifter, Ben Quick, who shows up at the country spread of Will Varner, a wealthy Southern patriarch (Orson Welles), looking for work. A member of the household tries to brush him off, but Ben persists and the patriarch eventually intervenes. Ben’s direct style and obvious willingness to work strike a chord with the elderly gent—Ben reminds Will of himself in his own youth when, as a hungry young man out to make his mark, he took control of a small business and expanded it into the large empire he now runs.^[2]

When Ben does well on his first assignment—digging post holes for a fence—Will gives him increasingly challenging work. In time, the two become friends. When the rough-hewn Quick also shows a good mind for busi­ness, the patriarch takes him, first, into his confidence, then into his household, which includes the patriarch’s wife, his slack-jawed son, Jody (Anthony Franciosa), and beauteous, strong-willed daughter, Clara (Joanne Woodward).^[3]

With three young adults all around the same age, family dynamics soon heat up in predictable fashion. Clara becomes intrigued with Ben, with his rugged good looks and keen business sense. Jody takes an instant dislike of him, realiz­ing that his father has long been disgusted with the son’s idle ways and lack of character.^[4] Jody suspects that Will is thinking of grooming Quick as his succes­sor, cutting him out of his plans. The movie follows the twists and turns of the power struggle among the three men and the smoldering, slow-developing romance between Ben and Clara. Based on a tale by William Faulkner, The Hamlet,^[5] the film earned critical praise at the 1958 Cannes Film Festival, where Newman won the best actor award.^[6]

History is littered with similar tales.^[7] Wealthy, powerful individuals, usually men, want successors who will carry on the family line, rule the kingdom after the king is gone, or take over the family business when Dad is no longer capable of managing it.^[8] When the wife proves incapable of producing an heir, or Junior arrives but later disappoints, caring more for a life of leisure pursuits than expansion of the family empire, the plot thickens.

Social scientists call the desire to see oneself in the next generation “transcendence” and consider it a very common human motive, lying behind much art, literature (the books and articles will live on after us), and architecture (think: Christopher Wren).^[9] It, of course, lies behind our desire for progeny who will carry on our family name and, if possible, work.

In contemporary times, one finds evidence of a similar impulse underlying the vigorous opposition to social redistribution on the part of the country’s very rich.^[10] By “very rich” I do not mean those moderately wealthy individuals whom readers of this Article are likely to know, with total wealth in the low millions of dollars and enough money to get through life comfortably, take vacations, hire a servant or two, own nice homes and cars, and send their children to good colleges.^[11]

I am talking, instead, about the very rich, the top thousand or so of America’s citizens, people with a net wealth of half a billion dollars or more.^[12] These are individuals with great power and more money than anyone could easily spend in a lifetime. They either inherited large fortunes and had the good sense not to dissipate them, or else excelled in business and built up corporate empires by dint of genius, hard work, or, sometimes, simple luck.^[13]

Many—not all—of these people back conservative think tanks and foundations such as the Heritage Foundation or Pioneer Fund^[14] and strenuously oppose social redistribution.^[15] Even though it cannot possibly endanger their security or net worth, the super rich do not want the United States to move even slightly in the direction of Europe’s managed economies with amply funded schools, universal health insurance, long paid vacations and parental leaves for workers, and early, adequately funded retirement for those at the end of their working years.^[16]

Why not? Economists agree that a relatively modest investment in human capital—prenatal care, health insurance, public education, and housing for those who cannot afford it—pays dividends far exceeding its cost.^[17] A modern nation needs a well-trained, healthy workforce and citizenry. It does not need the crime, disease, and poverty that accompany the neglect of large numbers of its members.^[18]

If a welfare safety net benefits the economy as a whole, why do some super rich, almost all of them immersed in corporate or business life, oppose it? Not all do, to be sure.^[19] But the many who do are in a position to subsidize organiza­tions and causes that can stop redistributive measures in their tracks.

Large corporations, the Chamber of Commerce, and many similar organizations with a free-market orientation support public education, affirma­tive action, and similar measures essential to upward mobility for all, including children, immigrants, and the poor.^[20] The nation needs everyone’s talents, and these organizations know it.^[21]

But many of the super rich throw their weight in the opposite direction, opposing income, corporate, and estate taxation (even though they can easily afford to pay them), aid to education, unemployment insurance, national health insurance, and a host of similar measures.^[22]

In doing so, they are not expressing class interest—indeed, the interest of their class, the corporate–business sector, as mentioned, cuts in the opposite direction.^[23] My thesis is that their opposition is both irrational and deeply personal, and that to understand their motivation one needs to consider their children and the interplay between the wealthy parents and the next genera­tion—in short, the interest of the very rich in transcendence.^[24]

As with The Long Hot Summer, one needs to understand the kind of society the very wealthy want to leave behind after they have gone.

I. Transcendence and the Children of the Very Rich

And that kind of society, I posit, is one that they could—if they were able to return from the grave—recognize, identify with, and like. They or people very much like them, would be in charge. The new caretakers would understand their values and traditions and work hard to carry them on. And those values are conservative—they don’t contemplate change, at least not fast.

This is where transcendence enters the picture. It is also where frustration sets in. For the children of the very rich, like Jody—the weak, effete son of the Southern patriarch in The Long, Hot Summer—very often disappoint.^[25] They are not as hard working as Dad, not as driven.^[26] Their parents have been in a position to buy them expensive clothes, European travel and vacations, fancy toys, and cars, and to pay for private education.^[27] Unsurprisingly, the children have decided they like these creature comforts. Starting at the bottom of some business is unattractive. They would like comfortable jobs near the top right away—or, better yet, not to work at all.^[28]

Not only are they inclined, since childhood, to like luxury, they may be, compared to Dad, a little dim. Social scientists call this “regression toward the mean.”^[29] The children of exceptional parents tend to be good at things, but not as good as Mom or Dad. By the same token, the children of very tall parents tend to be taller than average but not so towering as their parents. And the same holds true with IQ, musical talent, or any other gene-linked trait or ability. The children do not quite measure up to their parents.^[30]

This is worrisome for the plantation owner or tycoon, who realizes that a son like Jody has, perhaps, just enough ability to make it through a good college—with the aid of a legacy admission purchased by a hefty check to Dad’s alma mater^[31]—and then step into Dad’s shoes in the company or firm. But the elder citizen knows that Junior, who makes clear his aversion to hard work, is apt to run the company into the ground in a few years. Nothing will be left—no transcendence.^[32]

To make matters worse, Junior may, in later years, write an exposé of life in Dad’s and Mom’s household.^[33] Many children of famous families have done so, and publishers seem eager to print books baring the personal foibles of famous and well-heeled parents. Many of the offspring, as authors, come across as distinctly ungrateful, depicting their parents in highly unflattering terms. Dad emerges as cold and distant, and Mom as more interested in clothing and parties than the precious psyches of her own children.^[34] Both of them drank too much and paid too little attention to the children’s struggles. How cruel! How sad the fate of a child of the super rich!

II. Social Distribution

Consider, now, where social distribution enters the picture of such a family. In the back of the patriarch’s mind is the realization that the country is full of Paul Newmans: young, strong, ambitious, eager to work and move up in the world, just biding their time and awaiting an opportunity—but, unlike Newman’s character Ben Quick, Latino or black. Maybe Appalachian white, but at any rate, of a radically different stripe from his own slack-jawed kids. The specter of a million or more such youth, moving up the ladder, hungrier than the patriarch’s own offspring and prepared to work eighteen hours a day, if necessary to surpass them, troubles the aging tycoon. Such a newcomer could easily eclipse a spoiled child with his soft ways and gentleman’s C’s.^[35] And, if so, the face of America in the near future could look quite different, with brown and black people, and maybe Appalachian whites from the lower classes, too, running the show.

That alarming development can be averted by keeping as much of America’s wealth as possible for Junior and his class and making sure that as little as possible reaches Gonzalo, Rashon, Billy Boy, and Lakeysha while they are growing up. This includes making sure the latter do not get into a top-flight college with the aid of affirmative action.^[36] It includes assuring that their parents’ household or neighborhood library lacks the books and computers that could enable a child raised there to rise very high or even imagine himself in a top office or position when he grows up.^[37] It includes defunding a host of other social supports like the ones mentioned earlier that can help poor children rise and compete against the well-born.

III. Assuring Transcendence Through Social Action

So far, I have made a case, based on the psychology of transcendence and a few observations about the child-raising experiences of the very rich, for some determined opposition from that sector to social redistribution. Now consider a few developments that suggest that the opposition I describe is not merely hypothetical but has actually set in—indeed, it has had a distinct impact on the nation’s recent history.

A. Shredding the Welfare Net

Beginning in the 1980s, wealthy Republicans began attacking welfare in a concerted fashion.^[38] Even before this time, culture-of-poverty notions^[39] and conser­v­ative books and position papers had advocated reducing welfare for the poor on the ground that it encouraged dependency, single motherhood, and excess childbirth.^[40] These efforts came to fruition during the Clinton presidency when welfare payments gave way to “workfare” and temporal limits on public assistance.^[41] With reduced support for public education,^[42] HeadStart, and simi­lar programs,^[43] the path to upward mobility for poor youth now became longer and rockier. The pool of competitors from the lower classes and minorities capable of competing with a wealthy person’s children now is consi­derably smaller than before. Wealthy conservatives, of course, were behind much of the effort to eliminate welfare.^[44]

B. Unlimited Corporate Political Contributions and the Demoralized Left

The richest one thousand Americans, predominantly conservative, com­mand, among them, a great deal of wealth. But the Left in the United States is not without resources. The entertainment industry, especially Hollywood, has a good deal of money and is reliably liberal,^[45] as is academia.^[46] A half-million academics, each with a modest estate, are capable of turning out quite a bit of support for causes they hold dear, such as scholarships for poor kids or programs such as the Peace Corps. Hollywood is even richer. Both sectors could, poten­tially, take up the slack from cutbacks in state spending.

A series of federal court decisions ensuring that wealthy and well-heeled donors are able to contribute virtually unlimited amounts to political cam­paigns^[47] did much to quell progressive energy and giving. After all, why should a liberal academic family making, perhaps, one hundred thousand dollars a year and with an estate totaling a million dollars stretch hard to make a one thousand dollar do­nation to the Obama campaign, Negro College Fund, or Southern Poverty Law Fund? A conservative organization or corporation can trump them by a dona­tion to a conservative cause that is many times larger.

If money is speech, why contribute to national discourse if the voices on the other side are able to speak more loudly and persistently?^[48] A demoralized Left is apt to speak much less insistently and forcefully than one that believes it is playing on a level field.

C. Financial Shocks and the Shrinking Liberal Wallet

Another means by which conservatives have demoralized their liberal coun­terparts is to trigger a series of dramatic downturns in the nation’s economy—followed by equally sudden rises.^[49] With an average liberal’s modest retirement portfolio under threat—indeed, it may have dropped, at one time, close to 50 percent^[50]—how could one consider giving a large contribution to a liberal organi­zation? The times are different, and harder. Perhaps it is time to tend to one’s own garden. As I write, the stock market stands close to where it stood shortly before the latest big crash. But everyone in my circle of friends (I am a liberal academic) is insecure. Giving to nonprofit organizations and philanth­ropies is lower than it has been in some time.^[51] Since these are the groups working to provide college scholarships, early childhood healthcare, and other social supports, the children of the working class will suffer a broad withdrawal of support. Young people of real talent, who might have posed competition for wealthy children like Jody, will be less likely to develop into serious rivals.

D. Why Now?

If transcendence anxiety seems to be gripping the nation’s wealthy and powerful more tightly today than it did in the days of King Lear or even Will Varner, we might ask why this might be so. A number of reasons come to mind. Brown v. Board of Education^[52] and the civil rights movement^[53] enabled many black students to move up the educational ladder in previously segregated public schools. Within a few years, they would soon be knocking at the doors of the nation’s colleges and universities.^[54] When these institutions introduced affirmative action programs and courts upheld them,^[55] it would have been even plainer that the days of plutocratic, wealth-based succession were numbered. The Jodys of the world would now have serious competition.

Moreover, a few years later, Latino immigration began to pick up.^[56] During the 1990s, it became a flood, with the new immigrants settling in regions of the country, such as the South, the Midwest, and New England, that formerly contained only small numbers of them. With an appetite for hard work, these newcomers, too, had the potential to create worries for the wealthy parents of indolent sons and daughters.^[57]

As though that were not troublesome enough, beginning a few years ago, liberal and libertarian writers began calling for affirmative action based on class.^[58] This approach would have given special consideration to Appalachian whites, recent Eastern European immigrants, and others with strong academic credentials but insufficient family wealth to afford a top school.^[59]

During the same period, colleges and universities began competing to see who could cater most successfully to leisure-loving students, building elaborate recreation centers (replete with climbing walls), student unions, and dormitories with amenities such as kitchenettes and computer terminals in each room.^[60] New self-designed curricula permitted students to devise courses of study unfocused enough that they must have given some successful and hard-driving parents nightmares.^[61] Meanwhile, Asian, Latino, black, and working-class white students were living in the old dorm on the other side of campus and taking no-nonsense courses in computer science, business, classics, or accounting.

To compound matters, Dad himself may well be feeling less appreciated than before. While society today continues to venerate the wealthy, self-made man, wealth alone is no longer enough. Our role models today are no longer automatically members of the Forbes list of the world’s wealthiest individuals, but those, like Bill Gates or George Soros, who put their money to work solving world hunger or endowing museums in the inner city.^[62] For all these reasons, the very wealthy today may easily feel less appreciated than in the past by society at large and more concerned over their children’s prospects in light of both the new competition and the less rigorous training a student like Jody is apt to receive at a good college.

Conclusion

I have suggested looking at recent events through the prism of transcen­dence, the desire to shape events after one is gone. With very rich conservatives, transcendence meets a stumbling block when their own children, as many do, show little interest in the hard work that led to their parents’ success. Many wealthy families try to compensate by buying their children educational opportunities at first-class schools.

But the children may still disappoint, raising the prospect that they could be overtaken by a hungry, hard-driving minority or poor white child. Even though human capital, upward mobility, and merit selection are good for democracy and the economy—and, indeed, receive support from many thoughtful members of the business class—they are not good for the Jodys of the world. Based on recent developments and the psychology of transcendence, I posit that this is what lies behind the stubborn resistance, on the part of some of the country’s richest citi­zens, to public education, higher taxes, and other forms of social redistribution.

This Article breaks new ground by arguing that, functionally, the Court has come to view race-conscious government action as a form of prohibited government speech. The Court’s colorblindness doctrine, which is premised on expressive harm, is fundamentally inconsistent with the rationales for the government speech doctrine under the First Amendment. As the government speech doctrine recognizes, disagreement with the message sent by government action is not alone sufficient to state a constitutional claim. Rather, such disagreement is best addressed through the political process. This Article argues that the Court should use government speech principles to inform its equal protection analysis in cases in which the alleged harm is primarily expressive in nature.

This Article argues that the preferential tax treatment of founders’ stock is not normatively justified. The economic efficiency case for a tax preference for founders’ stock is weak: Tax has a limited effect on entrepreneurial entry. Geographic, cultural, and business factors are far more important, as are nontax legal factors like bankruptcy, employment law, immigration policy, and securities law. Tax is a blunt policy instrument, and given the problems associated with direct government subsidies, the optimal level of government subsidy of entrepreneurship may be zero.

The case for reform is compelling. Taxing founders at a low rate is a conspicuous loophole in the fabric of our progressive income tax system, uniquely undermining our shared commitment to equal opportunity and distributive justice. Founders’ stock is often bequeathed to heirs who receive a step up in basis, leaving a legacy of dynastic wealth that is exempt from the income tax and subject only to the rather dodgy application of the estate tax.

While it would be normatively desirable to tax gains from founders’ stock at the same rate as labor income, fixing the problem is not administratively feasible within our current tax system. I offer solutions that policymakers might consider as part of a broader tax reform and deficit reduction effort.

As the law of arbitration has fallen behind arbitration practice, four negative externalities have developed. First, legally inaccurate arbitration awards, if left uncorrected, may allow for ongoing legal violations that harm third parties. Second, inaccurate awards undermine enforcement and may thereby reduce the law’s deterrent effect. Third, unreasoned or inaccurate awards create uncertainty about the legal rights and obligations of third parties. Finally, arbitration can elicit public controversy if outside observers believe victims are being denied their day in court.

Mitigating these externalities requires tailoring judicial review of arbitration awards based on the timing of the agreement to arbitrate, the types of claims involved, and the relative sophistication of the parties. Unequal bargaining power at the contracting stage must be addressed without unduly limiting parties’ freedom to avoid the costs of litigation. This Comment argues that the proper balance can be struck by drawing on federal securities law. Rule 144A of the Securities Act of 1933 classifies certain investors as qualified institutional buyers who may enter into transactions without the additional protections otherwise afforded by the law. This Comment explains how the principles behind Rule 144A can be extended to arbitration, allowing what I call qualified arbitration participants greater control over the level of substantive judicial review applicable to their arbitration awards without sacrificing safeguards for less sophisticated parties.

As more and more personal information is placed online, attorneys are increasingly turning to the internet to investigate and research jurors.^[1] In certain jurisdictions, the practice has become fairly commonplace.^[2] One prominent trial consultant has gone so far as to claim, “Anyone who doesn’t make use of [internet searches] is bordering on malpractice.”^[3] While this may somewhat overstate the importance of investigating jurors online, it nonetheless demonstrates just how routine the practice has become.^[4] Aside from increased acceptance among practitioners, courts have both approved of and encouraged online investigation of jurors.^[5]

While many view this practice as a benefit to the legal system because it helps identify dishonest and biased jurors and works to limit juror misconduct, it is not without critics.^[6] This Article examines the positive and negative aspects of legal professionals investigating jurors online and offers a proposal that, if implemented, should dull some of the criticism associated with the practice. Specifically, this Article proposes that the Advisory Committee on Criminal Rules of the Judicial Conference of the United States make certain juror infor­mation uncovered by attorneys in criminal trials subject to the rules of discovery.

I. Methods of Investigating Jurors

The practice of obtaining information about jurors outside of the tradi­tional voir dire process is not a new concept.^[7] Historically, criminal defense attorneys gathered information about potential jurors through private detectives, while prosecutors relied on law enforcement.^[8] These investigators, both private and public, were employed to learn basic background infor­mation on jurors such as age, religion, neighborhood, type of residence, employer, socioeconomic and ma­rital status, and political affiliation.^[9] Because criminal sta­tutes and ethi­cal rules prohibit direct contact with jurors, inves­tigators prac­ticed their craft by talking with the jurors’ neighbors or conducting drive-bys of the jurors’ residence.^[10]

As concerns about juror privacy started to capture the attention of judges, academics, and the public as a whole, it became increasingly difficult to inves­tigate jurors in certain jurisdictions. Courts were less willing to make juror information readily available. Some waited until the eve or day of trial to release the names of prospective jurors,^[11] while others stopped publicly publishing jury lists.^[12] Also, anonymous juries, in which juror names are sometimes even withheld from the attorneys trying the case, became more common.^[13] This in turn made it extremely difficult to conduct any type of pre–voir dire inves­ti­ga­tion into the backgrounds of jurors. However, with the technological advancements brought by the digital age, the practice has been resurrected, albeit in a mod­ified form.

Unlike in the past, when investigators canvassed the neighborhoods of prospective jurors, today’s investigations occur primarily online, as most jurors have at least one online reference, either placed there personally or by someone else.^[14] At present, the investigation process can take various forms. At the most basic level is a name search on an internet search engine.^[15] However, many attorneys employ far more sophisticated procedures to include extracting information from social networking sites and databases^[16] and monitoring jurors’ online activities.^[17]

Also, attorneys today no longer need juror names weeks or days in advance of trial because online investigation primarily takes place in the courtroom during voir dire.^[18] Because fewer resources are needed, the practice occurs even in routine cases.^[19] And jurors in the digital age are increasingly investigated throughout a trial, not just prior to jury selection.^[20]

The last major difference from the past is the amount of personal data now available. A juror’s digital trail—or internet footprint—affords attorneys a virtual treasure trove of information.^[21] With so much information available, sorting through it and finding something relevant is a challenge. But, as demonstrated by the attorneys defending José Padilla—the would-be “Dirty Bomber”—it is possible, even with a small window of time, to uncover sufficient information to have a potential juror dismissed.^[22] Besides the Padilla case,^[23] numerous examples exist of attorneys finding sufficient information to have a juror chal­lenged for cause both in the civil and criminal context.^[24]

In certain instances, attorneys investigating jurors learn things that would rarely, if ever, come up or be discussed during voir dire.^[25] This is because the attorney or judge never thought to pose the question, the topic was too personal in nature, or the information arose after jury selection. For example, judges generally prohibit attorneys from questioning a potential juror during voir dire about her political ideology or who she voted for in the last presidential election.^[26] By going online, however, the attorney may discover which political candidates the juror donated to in the most recent election and whether the juror belongs to any particular political organizations.^[27] Thus, in a way, online research provides an alternative route or “end run” by which attorneys learn additional information about jurors.

An attorney’s ability and desire to go online to learn a juror’s political views also demonstrates that the investigation of jurors, like voir dire itself, is not limited necessarily to ferreting out dishonesty or finding impartial jurors. Rather, attorneys use these opportunities to gather information on jurors for various purposes and for use at different stages of the trial.^[28] Depending on the infor­mation discovered, an attorney might format an opening statement or craft specific witness questions to fit the interests of a particular juror.^[29] For example, if an attorney discovers through his or her online investigation that one partic­ular juror follows sports closely, the attorney may use athletic references or metaphors in the courtroom in an attempt to better connect with that juror. Other attorneys, particularly those who at the end of the trial find themselves on the losing side, might research a juror online in an attempt to find some act of misconduct that could serve as grounds for appeal.^[30] For example, an attorney might search a juror’s blog or social networking site in an effort to discover an inappropriate remark or comment made to or by the juror during trial.^[31]

II. Positives of Investigating Jurors

Proponents of online juror investigation claim that the practice improves the legal system as a whole.^[32] These benefits can be found throughout a trial but primarily occur during jury selection. For example, attorneys are allowed a certain number of peremptory challenges to remove potential jurors during voir dire. Unlike challenges for cause, peremptories can be used to strike a juror even if that juror can be impartial and fair to both sides. In fact, attorneys need only to offer little to no reason for using peremptories.^[33] This in turn has led to one of the major criticisms of peremptory challenges: Attorneys exercise them based on outdated stereotypes and hunches premised on a juror’s physical appearance.^[34]

By allowing attorneys to gather more information about potential jurors, attorneys are less likely to strike a juror solely because of gender or race, which is unconstitutional,^[35] or because of physical size, which is illogical.^[36] This idea may best be summed up by Professor Stephen Saltzburg who has advocated for providing attorneys with more information about prospective jurors: “I think most lawyers resort to stereotypes not because they want to but because they have to. . . . I’ve never met a lawyer who would prefer a jury of a particular racial composition over one that will win a verdict for him.”^[37] With the addi­tional information gleaned from online investigations, attorneys can exercise peremptory challenges constitutionally and more intelligently.^[38] Peremptories exercised on facts rather than unproven stereotypes give defendants and society as a whole greater confidence that the legal system is functioning properly.

Besides improving peremptory strikes, online investigations also allow verification of juror answers, which in turn facilitates greater truth-telling during voir dire. Once jurors realize that many of their voir dire answers can be verified online, they will likely be more truthful or request dismissal from the case. At least one legal practitioner has noted that “[b]ecause judges are emphasizing [juror background] checks, . . . more jurors drop out before the jury is formally seated and thus ‘fewer and fewer people are coming up with a criminal record in contradiction of their jury questionnaire.’”^[39]

Greater honesty during voir dire also reduces the risk of empaneling a rogue juror.^[40] According to Professor Bennett Gershman, rogue or stealth jurors are those “who seek to inject themselves into the [trial] process for self-serving reasons.”^[41] This is an issue of heightened concern in high-profile cases.^[42] Tradi­tionally, attorneys and judges had little outside information to rely on, save for maybe a criminal records check, when determining the honesty or suitabil­ity of a juror. Today, the internet makes verification of juror responses much easier.

Online investigations also provide benefits beyond the initial jury selection process. For example, in the digital age, jurors are increasingly violating courts’ prohibitions against researching, blogging, posting, or emailing information about the case.^[43] Once jurors learn that their public online activities are subject to monitoring, they will be less inclined to violate court rules for fear of being caught. In light of the growing number of instances of juror misconduct associated with improper communications and research, this benefit should not be underestimated.^[44]

III. Negatives of Investigating Jurors

Obviously, a big concern with online juror research is the encroachment on juror privacy.^[45] According to Judge Richard Posner, “Most people dread jury duty—partly because of privacy concerns.”^[46] The following quotation reflects the view held by many on this issue: “The Internet in so many areas creates an extraordinary conflict between the desire for information and the desire for privacy.”^[47] Thus, as more citizens realize that jury duty now includes online background checks and monitoring, the national jury summons reply rate of 48 percent^[48] may fall even lower.^[49]

Juror concerns over privacy, however, are neither new nor unique to the digital age. The legal community has long struggled with where to draw the line between empaneling and maintaining an impartial jury and safeguarding the privacy of jurors.^[50] In the past, numerous jurors have complained that voir dire questions and court questionnaires delved too far into personal matters.^[51]

With respect to online juror investigation, worries over privacy may be lessened somewhat if jurors are told ahead of time that their backgrounds will be researched and why the search is being done. One district attorney claims that prospective jurors generally do not mind background checks on social networking sites if he informs them that the information will only be used to determine their disposition towards certain issues, will help streamline the judicial process, and will be disposed of after trial.^[52]

In addition, it should be remembered that the online information sought by attorneys is public information. Unlike in the past, attorneys are no longer relying on detectives or law enforcement to canvass neighborhoods for infor­ma­tion.^[53] Rather, attorneys are seeking information, which, for the most part, is in the public domain. Thus, those concerned with juror privacy may be better served by focusing their attention on the individuals who place the information online, rather than those who search for it.

Aside from the concerns surrounding privacy and the potential drop in jury participation rates, another issue—which is the focus of this Article—exists regarding an assumption many make about the information discovered. Most assume all disqualifying juror information is turned over to the court or released to the public. While this is probably true in cases where the media discover the information, the same cannot be said for those situations in which attorneys make the discovery.^[54] As discussed above, when attorneys investigate jurors, they are not doing it necessarily to seat an impartial jury or ensure a fair trial.^[55] Rather, attorneys want to remove an unfavorable juror, learn the interests and viewpoints of sitting jurors, or uncover grounds for an appeal.^[56]

An attorney who discovers improper conduct by a juror in voir dire or during trial may not relay such information to the court, especially if the conduct is neither criminal nor fraudulent and the attorney thinks that keeping the particular juror will prove advantageous to her case.^[57] This is because few rules exist today that require attorneys to reveal such information. For example, only a small number of states make information about jurors discoverable.^[58] Those states requiring disclosure of juror information place the burden on the prosecution to disclose it and generally require disclosure only after a request from defense counsel.^[59]

As for an attorney’s ethical obligation to reveal such information, the Model Rules of Professional Conduct have not kept pace with the technol­ogical advancements brought by the digital age. Furthermore, these rules, for the most part, are unclear as to when an attorney must report a juror to the court. The most relevant and applicable section of the Model Rules of Profes­sional Conduct, Rule 3.3 Comment 12, reads:

Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communi­cat­ing with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so.^[60]

Applying this comment to two real-life situations may help demonstrate the lack of ethical guidance in this area. The first is the case of José Padilla,^[61] which presents a traditional example of juror dishonesty. During voir dire in Padilla’s trial, several of his attorneys ran internet searches on prospective jurors as they were called to sit in the jury box.^[62] One attorney discovered that a prospective juror had lied on her juror questionnaire about her involvement with the criminal justice system.^[63] The attorney informed the court, and the prospective juror was subsequently removed from the jury pool entirely.^[64]

Applying Rule 3.3 Comment 12 to Padilla’s case, it appears that the defense team, upon learning of the juror’s dishonest statement, had an ethical duty to make the court aware of the information because it was fraudulent—the juror had lied on a questionnaire.^[65] Thus, the ulterior motives of the defense team, such as the desire to remove a guilty vote, were irrelevant because the defense was ethically required to report the juror’s misconduct.

The second scenario involves a juror who sat on a two-day criminal trial. After the first day of trial, the juror wrote the following on her Facebook page: “[A]ctually excited for jury duty tomorrow. It’s gonna be fun to tell the defendant they’re GUILTY. .”^[66]

Later, the defense counsel’s son discovered the Facebook post while running internet searches on the jurors, and the court promptly removed the juror from the case.^[67] Obviously, here, defense counsel had an interest in remov­ing this juror. But did counsel have an ethical duty to reveal the infor­mation discovered? What if the prosecutor had discovered the information?

In applying Rule 3.3 Comment 12 to this scenario, it does not appear that either the defense counsel or the prosecutor had an ethical duty to present this information to the court.^[68] The juror’s act was neither fraudulent nor criminal, but it was definitely improper, and the court found it sufficient to remove her.^[69] An argument could be made that the juror’s actions were in contempt of court and thus required the attorneys to report it. This argument, however, is very tenuous and requires several assumptions: first, that the juror was indeed told not to post her thoughts about the case online;^[70] second, that the instructions were clearly and accurately given to the juror; and third, that the juror understood the instructions and purposefully violated the court’s order.^[71] These assump­tions make it unlikely that the Model Rules would apply.

Padilla’s case and the Facebook juror scenario illustrate the disparate results that may occur under the current Model Rules. As the practice of inves­tigat­ing jurors online continues to grow, it is highly likely that similar issues will arise in the future. At present, the legal system lacks adequate safeguards to ensure that all disqualifying juror information is brought forward. Thus, this Article recommends subjecting certain juror information to the rules of discovery, as discussed below.^[72]

IV. Proposed Solution: Disclosing Juror Information
to the Opposing Party

The rule advocated by this Article is to subject any juror information discovered by an attorney to the rules of discovery if such information would result in a juror being either challenged for cause or disqualified from serving.^[73] Because attorneys research jurors throughout a trial, the rule would be open-ended and not limited to voir dire. In addition, the rule would apply equally to prosecutors and criminal defense attorneys.

The proposed rule might read as follows:

Any attorney who discovers or learns of information before, during, or after trial that would disqualify a juror from serving, or serve as sufficient grounds for challenging the juror for cause, shall turn over such information to the opposing party.

If enacted, this rule might lesson society’s concern about attorneys inves­tigating jurors because it demonstrates that the practice is not solely for the benefit of one side, but instead to ensure a fair and unbiased jury.^[74] Arguably, citizens will be less accepting of online investigations of jurors if done solely for the advantage of one attorney over the other and without any requirement to reveal such information.^[75]

In addition, this rule helps level the playing field, as some attorneys are still in the dark about investigating jurors and others lack the resources to perform such research.^[76] One of the reasons José Padilla’s legal team was able to go online and discover the untruthful juror during voir dire is that it had the staff to do it, which is not always the case in criminal trials.^[77] As for those attorneys who have the resources but decline to conduct such investigations, because they do not want to turn over what they find, they run the risk of claims of ineffective assistance of counsel or legal malpractice, especially in jurisdictions where this practice has been sanctioned by the court or is the norm among practitioners.^[78]

A common argument against making juror information discoverable is that such information is protected by the attorney work-product privilege.^[79] Gen­erally speaking, this privilege prevents the disclosure of an attorney’s opi­nions, theories, or conclusions of law to opposing counsel.^[80] To lessen the possible impact on this privilege, the new rule of discovery as written does not require the disclosure of all information about jurors. In fact, the vast majority of the information an attorney might learn about a juror, such as the juror’s profile, would not be discoverable. Rather, this rule would only require the turning over of information that may disqualify a juror or would serve as a challenge for cause, and not information that would merely lead opposing counsel to exercise a peremptory challenge.

Assuming the disqualifying information fell under the work-product privilege, it should be remembered that the privilege is qualified, not absolute. Thus, the court could still override the privilege.^[81] Also, the work-product privilege should not serve as justification for an attorney to withhold infor­mation crucial to empaneling and maintaining an impartial jury, just as it would not prevent the prosecution from disclosing exculpatory information to the defense.^[82]

Conclusion

At least for now, it appears society is willing to accept the online inves­tigation of jurors, as many believe such activity serves the greater good of empaneling a fair and unbiased jury. While some see this as an intrusion into jurors’ personal lives, others believe attorneys, like everyone else, should be able to use this information, especially when it is in the public domain. Propo­nents of juror research point to its tremendous upside, claiming that with the infor­mation uncovered, courts increase the likelihood of empaneling unbiased and honest jurors, and decrease the possibility of juror misconduct—or at least keep it from going undetected. This point of view incorrectly assumes all disqua­lifying information about jurors will be brought to light. Allowing such infor­mation to be obtained, but making it subject to the rules of discovery, will correct this misconception and should help to curb much of the criticism aimed at the inves­tigation of jurors.

[2]. See Beth Germano, Social Media Changing the Way Juries Are Picked, CBS Bos., Nov. 15, 2010, http://boston.cbslocal.com/2010/11/15/social-media-changing-the-way-juries-are-picked.

[3]. Carol J. Williams, Jury Duty? May Want to Edit Online Profile, L.A. Times, Sept. 29, 2008, http://articles.latimes.com/2008/sep/29/nation/na-jury29 (alteration in original).

[4]. Some trial consultants have gone so far as to offer “personality profiling” of jurors based on internet research. Julie Kay, Vetting Jurors via MySpace, Nat’l L.J., Aug. 11, 2008, at 1.

[5]. See Johnson v. McCullough, 306 S.W.3d 551, 558–59 (Mo. 2010) (en banc); Carino v. Muenzen, No. L-0028-07, 2010 WL 3448071, at *7–8 (N.J. Super. Ct. App. Div. Aug. 30, 2010).

[6]. See Jamilla Johnson, Voir Dire: To Google or Not to Google, King Cnty. B. Bull. (Aug. 2008).

[7]. Depending on the level of public interest in a specific trial, the media also researches jurors. See, e.g., Karen Flax, Why the Tribune—and Other News Outlets—Are Seeking the Names of Blagojevich Jurors, Chi. Trib., July 9, 2010, http://newsblogs.chicagotribune.com/tribnation/ 2010/07/why-the-tribune-and-other-news-outlets-are-seeking-the-names-of-blagojevich-jurors.html.

[8]. Joshua Okun, Investigation of Jurors by Counsel: Its Impact on the Decisional Process, 56 Geo. L.J. 839, 851–53 (1968).

[9]. Id. at 855 (citing Dow v. Carnegie-Ill. Steel Corp., 224 F.2d 414, 430 (3d Cir. 1955)).

[10]. Id.

[11]. Generally speaking, there is no right for a party to access the jury list. See Wagner v. United States, 264 F.2d 524, 528 (9th Cir. 1959); Hamer v. United States, 259 F.2d 274, 278–79 (9th Cir. 1958); Seth A. Fersko, Comment, United States v. Wecht: When Anonymous Juries, the Right of Access, and Judicial Discretion Collide, 40 Seton Hall L. Rev. 763, 771 (2010).

[12]. Mick Hinton, House Votes to Shut Lists of Jurors, Daily Oklahoman, Apr. 21, 1993, at N1.

[13]. Thaddeus Hoffmeister, Judges Posner and Easterbrook Disagree Over Anonymous Jury Issue,

Juries (July 16, 2010, 10:55 AM), http://juries.typepad.com/juries/2010/07/judges-posner-and-easterbrook-disagree-over-anonymous-jury-issue.html.

[14]. Potential Jurors Are an Open Book Online, L.A. Times, Oct. 26, 2008, http://beta2.tbo.com/news/

metro/2008/ oct/26/na-potential-jurors-are-an-open-book-online-ar-106400/.

[15]. Peter Vieth, Internet Juror Research Is Revealing, Trained P.I. Can Uncover Even More, Va.

Law. Wkly., Nov. 23, 2009, http://valawyersweekly.com/2009/11/23/internet-juror-research-is-revealing-trained-pi-can-uncover-even-more/.

[16]. Id.

[17]. Id.

[18]. See, e.g., Carino v. Muenzen, No. L-0028-07, 2010 WL 3448071, at *4 (N.J. Super. Ct. App. Div. Aug. 30, 2010).

[19]. See Internet Juror Research Can Be Revealing, Wis. L.J., Nov. 30, 2009, http://wislawjournal.com/ 2009/11/30/internet-juror-research-can-be-revealing.

[20]. See Kay, supra note 4, at 1, 18.

[21]. Id.

[22]. Id.

[23]. United States v. Hassoun, No.0:04cr60001 (S.D. Fla. Aug. 16, 2007).

[24]. See Ken Strutin, Juror Behavior in the Information Age, LLRX.com, Dec. 26, 2010,

http://www.llrx.com/features/jurorbehavior.htm.

[25]. Nancy S. Marder, The Jury Process 82–83 (2005) (“For example, lawyers have sometimes wanted to ask prospective jurors about their religion or sexual orientation during voir dire, but judges have usually denied such inquiries on the ground that it is an intrusion into the juror’s privacy and not necessary for the parties to know.”).

[26]. See, e.g., Connors v. United States, 158 U.S. 408, 412–13 (1895).

[27]. See, e.g., Campaign Donors: Fundrace 2010, Huffington Post, http://fundrace.huffingtonpost. com (last visited July 24, 2011).

[28]. See Sinclair v. United States, 279 U.S. 749, 765–66 (1929) (critiquing the practice of shadowing of jurors).

[29]. Kay, supra note 4, at 1, 18 (“Last year, Fort Lauderdale, Fla., jury consultant Amy Singer was doing Internet research on potential jurors for a products liability case involving a maintenance worker who was severely injured after being forced to get inside a machine to clean it. Singer—who was working for the plaintiff’s attorney—hit pay dirt when she found out that one of the jurors divulged on his MySpace page that he belonged to a support group for claustrophobics. Singer instantly knew this juror would be sympathetic to her client and advised her client to keep him on the panel. He wound up becoming the foreman. The plaintiff prevailed.”).

[30]. See Edwards v. Hyundai Motor Mfg. Ala., L.L.C., 701 F. Supp. 2d 1226, 1235 (M.D. Ala. 2010) (granting a motion for a new trial on grounds of juror misconduct when a juror was dishonest about previously being denied employment with the defendant company, resulting in potential bias).

[31]. See, e.g., Juror No. One v. Superior Court, No. C067309 (Cal. Ct. App. Feb. 10, 2011).

[32]. Molly McDonough, Rogue Jurors, A.B.A. J., Oct. 2006, at 39.

[33]. Albert Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 167–69 (1989).

[34]. Id. at 202.

[35]. J.E.B. v. Alabama, 511 U.S. 127, 145 (1994) (holding a peremptory strike based on gender unconstitutional); Batson v. Kentucky, 476 U.S. 79, 89 (1986) (holding that peremptory strikes may not be made on the basis of race).

[36]. See Dolphy v. Mantello, 552 F.3d 236, 237 (2d Cir. 2009). The prosecutor in Dolphy stated that he struck overweight potential jurors because, “based on [his] reading and past experience[,] . . . heavy-set people tend to be very sympathetic toward any defendant.” Id. (internal quotation marks omitted).

[37]. Stephanie B. Goldberg, Batson and the Straight-Face Test: Courts Split on Gender-Based Jury Picks, Permissible Stereotyping, A. B. A. J., Aug. 2002, at 82, 88 (quoting Professor Stephen A. Saltzburg of George Washington University National Law Center).

[38]. See Valerie P. Hans & Alayna Jehle, Avoid Bald Men and People With Green Socks? Other Ways to Improve the Voir Dire Process in Jury Selection, 78 Chi.-Kent L. Rev. 1179, 1190–91 (2003).

[39]. McDonough, supra note 32, at 43 (quoting District Attorney Daniel Conley).

[40]. See Jerry Markon, Jurors With Hidden Agendas—Lawyers See Rise in People Who Don’t Disclose Bias, Then Seek to Sway Peers, Wall St. J., July 31, 2001, at B1 (describing the growing phenomenon of jurors representing themselves as fair but hiding a bias or motivation).

[41]. Bennett L. Gershman, Contaminating the Verdict: The Problem of Juror Misconduct, 50 S.D. L. Rev. 322, 345 (2005).

[42]. Marcy Strauss, Juror Journalism, 12 Yale L. & Pol’y Rev. 389, 396–98 (1994) (discussing the potential problems caused by a self-interested juror working to profit from jury duty in high-profile cases).

[43]. See, e.g., Judicial Conference Comm. on Court Admin. & Case Mgmt., Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate About a Case (2009), available at http://www. uscourts. gov/uscourts/News/2010/docs/DIR10-018-Attachment.pdf.

[44]. See Denise Zamore, Can Social Media Be Banned From Playing a Role in Our Judicial System?, Minority Trial Law., Spring 2010, http://apps.americanbar.org/litigation/litigationnews/ practice_areas/minority-jury-social-media.html (noting that the use of social media creates problems that can escalate to mistrials); see also Thaddeus Hoffmeister, Google, Gadgets, and Guilt: The Digital Age’s Effect on Juries, 83 U. Colo. L. Rev. (forthcoming 2011).

[45]. Due to the nature and length of this Article, the topic of juror privacy, which is worthy of further discussion, is only briefly touched upon.

[46]. United States v. Blagojevich, 614 F.3d 287, 293 (7th Cir. 2010).

[47]. Kay, supra note 4, at 18 (quoting litigator and former prosecutor Dan Small) (internal quotation marks omitted).

[48]. Robert G. Boatright & Beth Murphy, How Judges Can Help Deliberating Juries: Using the Guide for Jury Deliberations, Ct. Rev., Summer 1999, at 38, 40, available at http://aja.ncsc.dni.us/ courtrv/cr36-2/CR36-2Boatright.pdf.

[49]. See John E. Nowak, Jury Trials and First Amendment Values in “Cyber World,” 34 U. Rich. L. Rev. 1213, 1247 (2000) (“[T]he thought that one’s entire life will be open to the government and public through jury service certainly may well deter most people from wanting to serve on a jury.”).

[50]. Brandborg v. Lucas, 891 F. Supp. 352, 356 (E.D. Tex. 1995).

[51]. See United States v. Barnes, 604 F.2d 121, 140 (2d Cir. 1979) (noting that people will “be less . . . willing to serve [on a jury] if they know that inquiry into their essentially private concerns will be pressed”); David Weinstein, Protecting a Juror’s Right to Privacy: Constitutional Constraints and Policy Options, 70 Temp. L. Rev. 1, 3 (1997).

[52]. See Laura B. Martinez, District Attorney to Use Facebook Profiles in Jury Selection, Brownsville Herald, Jan. 17, 2011, http://www.brownsvilleherald.com/articles/district-121729-attorney-use.html.

[53]. See Okun, supra note 8, at 851–53.

[54]. Like attorneys, the media have been quite adept at discovering juror misconduct.

[55]. See supra notes 24–27 and accompanying text. Just as voir dire is not necessarily conducted to seat an impartial juror, the same can be said for online research of jurors: “[V]oir dire examinations are theoretically designed to detect and eliminate bias, [but] they are almost universally employed for quite different objectives. Most counsel seek to employ any bias in favor of their client and eliminate only such bias as is directed against him.” Okun, supra note 8, at 841–42 (second alteration in original).

[56]. Kay, supra note 4, at 1 (“Some jury consultants and lawyers, however, still want to research their juries even after jury selection, for different reasons. For one thing, the information can be used to get a case overturned on appeal if it turns out a juror lied on a questionnaire. Additionally, some consultants and lawyers are beginning to use Internet information they’ve obtained about jurors to influence them during the trial, particularly during closing arguments.”).

[57]. See Nowak, supra note 49, at 1225 (“The attorney with information about cyber activities of potential jurors will be able to use jury challenges for cause, and use preemptive challenges, in a strategically wise manner.”).

[58]. See, e.g., State v. Bessenecker, 404 N.W.2d 134, 138–39 (Iowa 1987) (limiting access to juror information by county attorneys, and requiring county attorneys to disclose to the defense any juror information obtained); Commonwealth v. Smith, 215 N.E.2d 897, 901 (Mass. 1966) (allowing the defense access to juror information obtained by the government); Jeffrey F. Ghent, Annotation, Right of Defense in Criminal Prosecution to Disclosure of Prosecution Information Regarding Prospective Jurors, 86 A.L.R.3d 571, 574 (1978 & Supp. 2010).

[59]. See Ghent, supra note 58, at 574–75 (“Rule 421(a) of the Uniform Rules of Criminal Procedure makes it the duty of the prosecuting attorney, on the defendant’s written request . . . to allow access [to prospective juror reports].”). Some jurisdictions not requiring the release of such information by the prosecutor to defense counsel include Florida, Louisiana, and Texas. See Monahan v. State, 294 So. 2d 401, 402 (Fla. Dist. Ct. App. 1974); State v. Jackson, 450 So. 2d 621, 628 (La. 1984); Martin v. State, 577 S.W.2d 490, 491 (Tex. Crim. App. 1979).

[60]. Model Rules of Prof’l Conduct R. 3.3 cmt. 12 (2008). Tennessee is one of the few states that have a much more expansive rule. Tenn. Rules of Prof’l Conduct R. 3.3(i) (2011) (“A lawyer who, prior to conclusion of the proceeding, comes to know of improper conduct by or toward a juror or a member of the jury pool shall report the improper conduct to the tribunal, even if so doing requires the disclosure of information otherwise protected by RPC 1.6.”).

[61]. U.S. v. Hassoun, No. 0:04cr60001 (S.D. Fla. Aug. 16, 2007).

[62]. See Kay, supra note 4, at 1.

[63]. Id.

[64]. Id.

[65]. See Model Rules of Prof’l Conduct R. 3.3 cmt. 12 (requiring a lawyer “to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person . . . intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding”).

[66]. Jameson Cook, Facebook Post Is Trouble for Juror, Macomb Daily, Aug. 28, 2010, http://www.macombdaily.com/articles/2010/08/28/news/doc4c79c743c66e8112001724.txt.

[67]. Id.

[68]. See Model Rules of Prof’l Conduct R. 3.3 cmt. 12.

[69]. See Cook, supra note 66.

[70]. At present, many jurisdictions have not updated their jury instructions to keep up with technological changes. Hoffmeister, supra note 44.

[71]. In re Stoelting, 784 F. Supp. 886, 886 (S.D. Fla. 1992) (finding a juror who, contrary to the court’s instructions, “view[ed] story pertaining to case in news media and express[ed] her opinion concerning case to another member of jury panel” to be in contempt and fining the juror $250).

[72]. Due to the length of this Article, I do not have space to explain why changing the rules of discovery is superior to changing the Model Rules. However, for a general discussion of this topic, see Michael Cassidy, Plea Bargaining, Discovery and the Looming Battle Over Impeachment Evidence, 64 Vand. L. Rev. 5 (2011).

[73]. At least one other legal commentator has made a similar suggestion. See Nowak, supra note 49, at 1244 (“Statutes or court rules should be adopted at the state and federal level requiring any party to a litigation to provide to the opposing party all information in the party’s possession regarding cyber activities of potential jurors or witnesses.”).

[74]. See Karen Monsen, Privacy for Prospective Jurors at What Price? Distinguishing Privacy Rights From Privacy Interests; Rethinking Procedures to Protect Privacy in Civil and Criminal Cases, 21 Rev. Litig. 285, 286–88 (2002) (detailing the dilemma faced by jurors’ wish to protect their privacy, which must be balanced against society’s desire for this information “to ensure a fair trial for defendants”).

[75]. Jurors, like most people, do not relish the idea of attorneys researching their backgrounds. This displeasure would most likely increase if jurors knew that the information uncovered was used solely for the benefit of one attorney. See Sinclair v. United States, 279 U.S. 749, 765 (1929) (“If those fit for juries understand that they may be freely subjected to treatment like that . . . disclosed [through investigation by detectives], they will either shun the burdens of the service or perform it with disquiet and disgust.”).

[76]. Former University of Chicago law professor emeritus and jury research expert Hans Zeisel noted this potential problem with juror research many decades ago when he stated, “I hate things that benefit the richer side. . . . One side obtains an advantage over the other. . . . If this thing gets out of hand, the courts might begin to say that you have to disclose whatever you have learned to the other side.” Tamar Lewin, Business and the Law; Jury Research: Ethics Argued, N.Y. Times, Mar. 9, 1982, at D2 (quoting Hans Ziesel) (internal quotation marks omitted).

[77]. See, e.g., Ken Armstrong & Justin Mayo, Frustrated Attorney: ‘You Just Can’t Help People,’ Seattle Times, Apr. 6, 2004, http://seattletimes.nwsource.com/news/local/unequaldefense/

stories/three (detailing a public defender’s overwhelming caseload).

[78]. See Johnson v. McCullough, 306 S.W.3d 551, 554 (Mo. 2010) (en banc) (adopting a formal rule that, before the issue of a juror’s nondisclosure may be presented for appeal, the “party must use reasonable efforts to examine the litigation history on Case.net of those jurors selected but not empanelled”).

[79]. See, e.g., Reddicks v. State, 10 S.W.3d 360, 363 (Tex. Ct. App. 1999); Saur v. State, 918 S.W.2d 64, 66 (Tex. Ct. App. 1996); Salazar v. State, 795 S.W.2d 187, 192 (Tex. Crim. App. 1990).

[80]. See, e.g., People v. Martin, 225 N.W.2d 174, 175 (Mich. 1974).

[81]. Richard L. Moskitis, Note, The Constitutional Need for Discovery of Pre–Voir Dire Juror Studies, 49 S. Cal. L. Rev. 597, 632 (1976).

[82]. See Brady v. Maryland, 373 U.S. 83, 88 (1963). It should be noted that to date the U.S. Supreme Court has yet to determine whether Brady applies to attorney work product. Mincey v. Head, 206 F.3d 1106, 1133 n.63 (11th Cir. 2000).

As more and more personal information is placed online, attorneys are increasingly turning to the internet to investigate and research jurors.^[1] In certain jurisdictions, the practice has become fairly commonplace.^[2] One prominent trial consultant has gone so far as to claim, “Anyone who doesn’t make use of [internet searches] is bordering on malpractice.”^[3] While this may somewhat overstate the importance of investigating jurors online, it nonetheless demonstrates just how routine the practice has become.^[4] Aside from increased acceptance among practitioners, courts have both approved of and encouraged online investigation of jurors.^[5]

While many view this practice as a benefit to the legal system because it helps identify dishonest and biased jurors and works to limit juror misconduct, it is not without critics.^[6] This Article examines the positive and negative aspects of legal professionals investigating jurors online and offers a proposal that, if implemented, should dull some of the criticism associated with the practice. Specifically, this Article proposes that the Advisory Committee on Criminal Rules of the Judicial Conference of the United States make certain juror infor­mation uncovered by attorneys in criminal trials subject to the rules of discovery.

I. Methods of Investigating Jurors

The practice of obtaining information about jurors outside of the tradi­tional voir dire process is not a new concept.^[7] Historically, criminal defense attorneys gathered information about potential jurors through private detectives, while prosecutors relied on law enforcement.^[8] These investigators, both private and public, were employed to learn basic background infor­mation on jurors such as age, religion, neighborhood, type of residence, employer, socioeconomic and ma­rital status, and political affiliation.^[9] Because criminal sta­tutes and ethi­cal rules prohibit direct contact with jurors, inves­tigators prac­ticed their craft by talking with the jurors’ neighbors or conducting drive-bys of the jurors’ residence.^[10]

As concerns about juror privacy started to capture the attention of judges, academics, and the public as a whole, it became increasingly difficult to inves­tigate jurors in certain jurisdictions. Courts were less willing to make juror information readily available. Some waited until the eve or day of trial to release the names of prospective jurors,^[11] while others stopped publicly publishing jury lists.^[12] Also, anonymous juries, in which juror names are sometimes even withheld from the attorneys trying the case, became more common.^[13] This in turn made it extremely difficult to conduct any type of pre–voir dire inves­ti­ga­tion into the backgrounds of jurors. However, with the technological advancements brought by the digital age, the practice has been resurrected, albeit in a mod­ified form.

Unlike in the past, when investigators canvassed the neighborhoods of prospective jurors, today’s investigations occur primarily online, as most jurors have at least one online reference, either placed there personally or by someone else.^[14] At present, the investigation process can take various forms. At the most basic level is a name search on an internet search engine.^[15] However, many attorneys employ far more sophisticated procedures to include extracting information from social networking sites and databases^[16] and monitoring jurors’ online activities.^[17]

Also, attorneys today no longer need juror names weeks or days in advance of trial because online investigation primarily takes place in the courtroom during voir dire.^[18] Because fewer resources are needed, the practice occurs even in routine cases.^[19] And jurors in the digital age are increasingly investigated throughout a trial, not just prior to jury selection.^[20]

The last major difference from the past is the amount of personal data now available. A juror’s digital trail—or internet footprint—affords attorneys a virtual treasure trove of information.^[21] With so much information available, sorting through it and finding something relevant is a challenge. But, as demonstrated by the attorneys defending José Padilla—the would-be “Dirty Bomber”—it is possible, even with a small window of time, to uncover sufficient information to have a potential juror dismissed.^[22] Besides the Padilla case,^[23] numerous examples exist of attorneys finding sufficient information to have a juror chal­lenged for cause both in the civil and criminal context.^[24]

In certain instances, attorneys investigating jurors learn things that would rarely, if ever, come up or be discussed during voir dire.^[25] This is because the attorney or judge never thought to pose the question, the topic was too personal in nature, or the information arose after jury selection. For example, judges generally prohibit attorneys from questioning a potential juror during voir dire about her political ideology or who she voted for in the last presidential election.^[26] By going online, however, the attorney may discover which political candidates the juror donated to in the most recent election and whether the juror belongs to any particular political organizations.^[27] Thus, in a way, online research provides an alternative route or “end run” by which attorneys learn additional information about jurors.

An attorney’s ability and desire to go online to learn a juror’s political views also demonstrates that the investigation of jurors, like voir dire itself, is not limited necessarily to ferreting out dishonesty or finding impartial jurors. Rather, attorneys use these opportunities to gather information on jurors for various purposes and for use at different stages of the trial.^[28] Depending on the infor­mation discovered, an attorney might format an opening statement or craft specific witness questions to fit the interests of a particular juror.^[29] For example, if an attorney discovers through his or her online investigation that one partic­ular juror follows sports closely, the attorney may use athletic references or metaphors in the courtroom in an attempt to better connect with that juror. Other attorneys, particularly those who at the end of the trial find themselves on the losing side, might research a juror online in an attempt to find some act of misconduct that could serve as grounds for appeal.^[30] For example, an attorney might search a juror’s blog or social networking site in an effort to discover an inappropriate remark or comment made to or by the juror during trial.^[31]

II. Positives of Investigating Jurors

Proponents of online juror investigation claim that the practice improves the legal system as a whole.^[32] These benefits can be found throughout a trial but primarily occur during jury selection. For example, attorneys are allowed a certain number of peremptory challenges to remove potential jurors during voir dire. Unlike challenges for cause, peremptories can be used to strike a juror even if that juror can be impartial and fair to both sides. In fact, attorneys need only to offer little to no reason for using peremptories.^[33] This in turn has led to one of the major criticisms of peremptory challenges: Attorneys exercise them based on outdated stereotypes and hunches premised on a juror’s physical appearance.^[34]

By allowing attorneys to gather more information about potential jurors, attorneys are less likely to strike a juror solely because of gender or race, which is unconstitutional,^[35] or because of physical size, which is illogical.^[36] This idea may best be summed up by Professor Stephen Saltzburg who has advocated for providing attorneys with more information about prospective jurors: “I think most lawyers resort to stereotypes not because they want to but because they have to. . . . I’ve never met a lawyer who would prefer a jury of a particular racial composition over one that will win a verdict for him.”^[37] With the addi­tional information gleaned from online investigations, attorneys can exercise peremptory challenges constitutionally and more intelligently.^[38] Peremptories exercised on facts rather than unproven stereotypes give defendants and society as a whole greater confidence that the legal system is functioning properly.

Besides improving peremptory strikes, online investigations also allow verification of juror answers, which in turn facilitates greater truth-telling during voir dire. Once jurors realize that many of their voir dire answers can be verified online, they will likely be more truthful or request dismissal from the case. At least one legal practitioner has noted that “[b]ecause judges are emphasizing [juror background] checks, . . . more jurors drop out before the jury is formally seated and thus ‘fewer and fewer people are coming up with a criminal record in contradiction of their jury questionnaire.’”^[39]

Greater honesty during voir dire also reduces the risk of empaneling a rogue juror.^[40] According to Professor Bennett Gershman, rogue or stealth jurors are those “who seek to inject themselves into the [trial] process for self-serving reasons.”^[41] This is an issue of heightened concern in high-profile cases.^[42] Tradi­tionally, attorneys and judges had little outside information to rely on, save for maybe a criminal records check, when determining the honesty or suitabil­ity of a juror. Today, the internet makes verification of juror responses much easier.

Online investigations also provide benefits beyond the initial jury selection process. For example, in the digital age, jurors are increasingly violating courts’ prohibitions against researching, blogging, posting, or emailing information about the case.^[43] Once jurors learn that their public online activities are subject to monitoring, they will be less inclined to violate court rules for fear of being caught. In light of the growing number of instances of juror misconduct associated with improper communications and research, this benefit should not be underestimated.^[44]

III. Negatives of Investigating Jurors

Obviously, a big concern with online juror research is the encroachment on juror privacy.^[45] According to Judge Richard Posner, “Most people dread jury duty—partly because of privacy concerns.”^[46] The following quotation reflects the view held by many on this issue: “The Internet in so many areas creates an extraordinary conflict between the desire for information and the desire for privacy.”^[47] Thus, as more citizens realize that jury duty now includes online background checks and monitoring, the national jury summons reply rate of 48 percent^[48] may fall even lower.^[49]

Juror concerns over privacy, however, are neither new nor unique to the digital age. The legal community has long struggled with where to draw the line between empaneling and maintaining an impartial jury and safeguarding the privacy of jurors.^[50] In the past, numerous jurors have complained that voir dire questions and court questionnaires delved too far into personal matters.^[51]

With respect to online juror investigation, worries over privacy may be lessened somewhat if jurors are told ahead of time that their backgrounds will be researched and why the search is being done. One district attorney claims that prospective jurors generally do not mind background checks on social networking sites if he informs them that the information will only be used to determine their disposition towards certain issues, will help streamline the judicial process, and will be disposed of after trial.^[52]

In addition, it should be remembered that the online information sought by attorneys is public information. Unlike in the past, attorneys are no longer relying on detectives or law enforcement to canvass neighborhoods for infor­ma­tion.^[53] Rather, attorneys are seeking information, which, for the most part, is in the public domain. Thus, those concerned with juror privacy may be better served by focusing their attention on the individuals who place the information online, rather than those who search for it.

Aside from the concerns surrounding privacy and the potential drop in jury participation rates, another issue—which is the focus of this Article—exists regarding an assumption many make about the information discovered. Most assume all disqualifying juror information is turned over to the court or released to the public. While this is probably true in cases where the media discover the information, the same cannot be said for those situations in which attorneys make the discovery.^[54] As discussed above, when attorneys investigate jurors, they are not doing it necessarily to seat an impartial jury or ensure a fair trial.^[55] Rather, attorneys want to remove an unfavorable juror, learn the interests and viewpoints of sitting jurors, or uncover grounds for an appeal.^[56]

An attorney who discovers improper conduct by a juror in voir dire or during trial may not relay such information to the court, especially if the conduct is neither criminal nor fraudulent and the attorney thinks that keeping the particular juror will prove advantageous to her case.^[57] This is because few rules exist today that require attorneys to reveal such information. For example, only a small number of states make information about jurors discoverable.^[58] Those states requiring disclosure of juror information place the burden on the prosecution to disclose it and generally require disclosure only after a request from defense counsel.^[59]

As for an attorney’s ethical obligation to reveal such information, the Model Rules of Professional Conduct have not kept pace with the technol­ogical advancements brought by the digital age. Furthermore, these rules, for the most part, are unclear as to when an attorney must report a juror to the court. The most relevant and applicable section of the Model Rules of Profes­sional Conduct, Rule 3.3 Comment 12, reads:

Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communi­cat­ing with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so.^[60]

Applying this comment to two real-life situations may help demonstrate the lack of ethical guidance in this area. The first is the case of José Padilla,^[61] which presents a traditional example of juror dishonesty. During voir dire in Padilla’s trial, several of his attorneys ran internet searches on prospective jurors as they were called to sit in the jury box.^[62] One attorney discovered that a prospective juror had lied on her juror questionnaire about her involvement with the criminal justice system.^[63] The attorney informed the court, and the prospective juror was subsequently removed from the jury pool entirely.^[64]

Applying Rule 3.3 Comment 12 to Padilla’s case, it appears that the defense team, upon learning of the juror’s dishonest statement, had an ethical duty to make the court aware of the information because it was fraudulent—the juror had lied on a questionnaire.^[65] Thus, the ulterior motives of the defense team, such as the desire to remove a guilty vote, were irrelevant because the defense was ethically required to report the juror’s misconduct.

The second scenario involves a juror who sat on a two-day criminal trial. After the first day of trial, the juror wrote the following on her Facebook page: “[A]ctually excited for jury duty tomorrow. It’s gonna be fun to tell the defendant they’re GUILTY. .”^[66]

Later, the defense counsel’s son discovered the Facebook post while running internet searches on the jurors, and the court promptly removed the juror from the case.^[67] Obviously, here, defense counsel had an interest in remov­ing this juror. But did counsel have an ethical duty to reveal the infor­mation discovered? What if the prosecutor had discovered the information?

In applying Rule 3.3 Comment 12 to this scenario, it does not appear that either the defense counsel or the prosecutor had an ethical duty to present this information to the court.^[68] The juror’s act was neither fraudulent nor criminal, but it was definitely improper, and the court found it sufficient to remove her.^[69] An argument could be made that the juror’s actions were in contempt of court and thus required the attorneys to report it. This argument, however, is very tenuous and requires several assumptions: first, that the juror was indeed told not to post her thoughts about the case online;^[70] second, that the instructions were clearly and accurately given to the juror; and third, that the juror understood the instructions and purposefully violated the court’s order.^[71] These assump­tions make it unlikely that the Model Rules would apply.

Padilla’s case and the Facebook juror scenario illustrate the disparate results that may occur under the current Model Rules. As the practice of inves­tigat­ing jurors online continues to grow, it is highly likely that similar issues will arise in the future. At present, the legal system lacks adequate safeguards to ensure that all disqualifying juror information is brought forward. Thus, this Article recommends subjecting certain juror information to the rules of discovery, as discussed below.^[72]

IV. Proposed Solution: Disclosing Juror Information
to the Opposing Party

The rule advocated by this Article is to subject any juror information discovered by an attorney to the rules of discovery if such information would result in a juror being either challenged for cause or disqualified from serving.^[73] Because attorneys research jurors throughout a trial, the rule would be open-ended and not limited to voir dire. In addition, the rule would apply equally to prosecutors and criminal defense attorneys.

The proposed rule might read as follows:

Any attorney who discovers or learns of information before, during, or after trial that would disqualify a juror from serving, or serve as sufficient grounds for challenging the juror for cause, shall turn over such information to the opposing party.

If enacted, this rule might lesson society’s concern about attorneys inves­tigating jurors because it demonstrates that the practice is not solely for the benefit of one side, but instead to ensure a fair and unbiased jury.^[74] Arguably, citizens will be less accepting of online investigations of jurors if done solely for the advantage of one attorney over the other and without any requirement to reveal such information.^[75]

In addition, this rule helps level the playing field, as some attorneys are still in the dark about investigating jurors and others lack the resources to perform such research.^[76] One of the reasons José Padilla’s legal team was able to go online and discover the untruthful juror during voir dire is that it had the staff to do it, which is not always the case in criminal trials.^[77] As for those attorneys who have the resources but decline to conduct such investigations, because they do not want to turn over what they find, they run the risk of claims of ineffective assistance of counsel or legal malpractice, especially in jurisdictions where this practice has been sanctioned by the court or is the norm among practitioners.^[78]

A common argument against making juror information discoverable is that such information is protected by the attorney work-product privilege.^[79] Gen­erally speaking, this privilege prevents the disclosure of an attorney’s opi­nions, theories, or conclusions of law to opposing counsel.^[80] To lessen the possible impact on this privilege, the new rule of discovery as written does not require the disclosure of all information about jurors. In fact, the vast majority of the information an attorney might learn about a juror, such as the juror’s profile, would not be discoverable. Rather, this rule would only require the turning over of information that may disqualify a juror or would serve as a challenge for cause, and not information that would merely lead opposing counsel to exercise a peremptory challenge.

Assuming the disqualifying information fell under the work-product privilege, it should be remembered that the privilege is qualified, not absolute. Thus, the court could still override the privilege.^[81] Also, the work-product privilege should not serve as justification for an attorney to withhold infor­mation crucial to empaneling and maintaining an impartial jury, just as it would not prevent the prosecution from disclosing exculpatory information to the defense.^[82]

Conclusion

At least for now, it appears society is willing to accept the online inves­tigation of jurors, as many believe such activity serves the greater good of empaneling a fair and unbiased jury. While some see this as an intrusion into jurors’ personal lives, others believe attorneys, like everyone else, should be able to use this information, especially when it is in the public domain. Propo­nents of juror research point to its tremendous upside, claiming that with the infor­mation uncovered, courts increase the likelihood of empaneling unbiased and honest jurors, and decrease the possibility of juror misconduct—or at least keep it from going undetected. This point of view incorrectly assumes all disqua­lifying information about jurors will be brought to light. Allowing such infor­mation to be obtained, but making it subject to the rules of discovery, will correct this misconception and should help to curb much of the criticism aimed at the inves­tigation of jurors.

[2]. See Beth Germano, Social Media Changing the Way Juries Are Picked, CBS Bos., Nov. 15, 2010, http://boston.cbslocal.com/2010/11/15/social-media-changing-the-way-juries-are-picked.

[3]. Carol J. Williams, Jury Duty? May Want to Edit Online Profile, L.A. Times, Sept. 29, 2008, http://articles.latimes.com/2008/sep/29/nation/na-jury29 (alteration in original).

[4]. Some trial consultants have gone so far as to offer “personality profiling” of jurors based on internet research. Julie Kay, Vetting Jurors via MySpace, Nat’l L.J., Aug. 11, 2008, at 1.

[5]. See Johnson v. McCullough, 306 S.W.3d 551, 558–59 (Mo. 2010) (en banc); Carino v. Muenzen, No. L-0028-07, 2010 WL 3448071, at *7–8 (N.J. Super. Ct. App. Div. Aug. 30, 2010).

[6]. See Jamilla Johnson, Voir Dire: To Google or Not to Google, King Cnty. B. Bull. (Aug. 2008).

[7]. Depending on the level of public interest in a specific trial, the media also researches jurors. See, e.g., Karen Flax, Why the Tribune—and Other News Outlets—Are Seeking the Names of Blagojevich Jurors, Chi. Trib., July 9, 2010, http://newsblogs.chicagotribune.com/tribnation/ 2010/07/why-the-tribune-and-other-news-outlets-are-seeking-the-names-of-blagojevich-jurors.html.

[8]. Joshua Okun, Investigation of Jurors by Counsel: Its Impact on the Decisional Process, 56 Geo. L.J. 839, 851–53 (1968).

[9]. Id. at 855 (citing Dow v. Carnegie-Ill. Steel Corp., 224 F.2d 414, 430 (3d Cir. 1955)).

[10]. Id.

[11]. Generally speaking, there is no right for a party to access the jury list. See Wagner v. United States, 264 F.2d 524, 528 (9th Cir. 1959); Hamer v. United States, 259 F.2d 274, 278–79 (9th Cir. 1958); Seth A. Fersko, Comment, United States v. Wecht: When Anonymous Juries, the Right of Access, and Judicial Discretion Collide, 40 Seton Hall L. Rev. 763, 771 (2010).

[12]. Mick Hinton, House Votes to Shut Lists of Jurors, Daily Oklahoman, Apr. 21, 1993, at N1.

[13]. Thaddeus Hoffmeister, Judges Posner and Easterbrook Disagree Over Anonymous Jury Issue,

Juries (July 16, 2010, 10:55 AM), http://juries.typepad.com/juries/2010/07/judges-posner-and-easterbrook-disagree-over-anonymous-jury-issue.html.

[14]. Potential Jurors Are an Open Book Online, L.A. Times, Oct. 26, 2008, http://beta2.tbo.com/news/

metro/2008/ oct/26/na-potential-jurors-are-an-open-book-online-ar-106400/.

[15]. Peter Vieth, Internet Juror Research Is Revealing, Trained P.I. Can Uncover Even More, Va.

Law. Wkly., Nov. 23, 2009, http://valawyersweekly.com/2009/11/23/internet-juror-research-is-revealing-trained-pi-can-uncover-even-more/.

[16]. Id.

[17]. Id.

[18]. See, e.g., Carino v. Muenzen, No. L-0028-07, 2010 WL 3448071, at *4 (N.J. Super. Ct. App. Div. Aug. 30, 2010).

[19]. See Internet Juror Research Can Be Revealing, Wis. L.J., Nov. 30, 2009, http://wislawjournal.com/ 2009/11/30/internet-juror-research-can-be-revealing.

[20]. See Kay, supra note 4, at 1, 18.

[21]. Id.

[22]. Id.

[23]. United States v. Hassoun, No.0:04cr60001 (S.D. Fla. Aug. 16, 2007).

[24]. See Ken Strutin, Juror Behavior in the Information Age, LLRX.com, Dec. 26, 2010,

http://www.llrx.com/features/jurorbehavior.htm.

[25]. Nancy S. Marder, The Jury Process 82–83 (2005) (“For example, lawyers have sometimes wanted to ask prospective jurors about their religion or sexual orientation during voir dire, but judges have usually denied such inquiries on the ground that it is an intrusion into the juror’s privacy and not necessary for the parties to know.”).

[26]. See, e.g., Connors v. United States, 158 U.S. 408, 412–13 (1895).

[27]. See, e.g., Campaign Donors: Fundrace 2010, Huffington Post, http://fundrace.huffingtonpost. com (last visited July 24, 2011).

[28]. See Sinclair v. United States, 279 U.S. 749, 765–66 (1929) (critiquing the practice of shadowing of jurors).

[29]. Kay, supra note 4, at 1, 18 (“Last year, Fort Lauderdale, Fla., jury consultant Amy Singer was doing Internet research on potential jurors for a products liability case involving a maintenance worker who was severely injured after being forced to get inside a machine to clean it. Singer—who was working for the plaintiff’s attorney—hit pay dirt when she found out that one of the jurors divulged on his MySpace page that he belonged to a support group for claustrophobics. Singer instantly knew this juror would be sympathetic to her client and advised her client to keep him on the panel. He wound up becoming the foreman. The plaintiff prevailed.”).

[30]. See Edwards v. Hyundai Motor Mfg. Ala., L.L.C., 701 F. Supp. 2d 1226, 1235 (M.D. Ala. 2010) (granting a motion for a new trial on grounds of juror misconduct when a juror was dishonest about previously being denied employment with the defendant company, resulting in potential bias).

[31]. See, e.g., Juror No. One v. Superior Court, No. C067309 (Cal. Ct. App. Feb. 10, 2011).

[32]. Molly McDonough, Rogue Jurors, A.B.A. J., Oct. 2006, at 39.

[33]. Albert Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 167–69 (1989).

[34]. Id. at 202.

[35]. J.E.B. v. Alabama, 511 U.S. 127, 145 (1994) (holding a peremptory strike based on gender unconstitutional); Batson v. Kentucky, 476 U.S. 79, 89 (1986) (holding that peremptory strikes may not be made on the basis of race).

[36]. See Dolphy v. Mantello, 552 F.3d 236, 237 (2d Cir. 2009). The prosecutor in Dolphy stated that he struck overweight potential jurors because, “based on [his] reading and past experience[,] . . . heavy-set people tend to be very sympathetic toward any defendant.” Id. (internal quotation marks omitted).

[37]. Stephanie B. Goldberg, Batson and the Straight-Face Test: Courts Split on Gender-Based Jury Picks, Permissible Stereotyping, A. B. A. J., Aug. 2002, at 82, 88 (quoting Professor Stephen A. Saltzburg of George Washington University National Law Center).

[38]. See Valerie P. Hans & Alayna Jehle, Avoid Bald Men and People With Green Socks? Other Ways to Improve the Voir Dire Process in Jury Selection, 78 Chi.-Kent L. Rev. 1179, 1190–91 (2003).

[39]. McDonough, supra note 32, at 43 (quoting District Attorney Daniel Conley).

[40]. See Jerry Markon, Jurors With Hidden Agendas—Lawyers See Rise in People Who Don’t Disclose Bias, Then Seek to Sway Peers, Wall St. J., July 31, 2001, at B1 (describing the growing phenomenon of jurors representing themselves as fair but hiding a bias or motivation).

[41]. Bennett L. Gershman, Contaminating the Verdict: The Problem of Juror Misconduct, 50 S.D. L. Rev. 322, 345 (2005).

[42]. Marcy Strauss, Juror Journalism, 12 Yale L. & Pol’y Rev. 389, 396–98 (1994) (discussing the potential problems caused by a self-interested juror working to profit from jury duty in high-profile cases).

[43]. See, e.g., Judicial Conference Comm. on Court Admin. & Case Mgmt., Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate About a Case (2009), available at http://www. uscourts. gov/uscourts/News/2010/docs/DIR10-018-Attachment.pdf.

[44]. See Denise Zamore, Can Social Media Be Banned From Playing a Role in Our Judicial System?, Minority Trial Law., Spring 2010, http://apps.americanbar.org/litigation/litigationnews/ practice_areas/minority-jury-social-media.html (noting that the use of social media creates problems that can escalate to mistrials); see also Thaddeus Hoffmeister, Google, Gadgets, and Guilt: The Digital Age’s Effect on Juries, 83 U. Colo. L. Rev. (forthcoming 2011).

[45]. Due to the nature and length of this Article, the topic of juror privacy, which is worthy of further discussion, is only briefly touched upon.

[46]. United States v. Blagojevich, 614 F.3d 287, 293 (7th Cir. 2010).

[47]. Kay, supra note 4, at 18 (quoting litigator and former prosecutor Dan Small) (internal quotation marks omitted).

[48]. Robert G. Boatright & Beth Murphy, How Judges Can Help Deliberating Juries: Using the Guide for Jury Deliberations, Ct. Rev., Summer 1999, at 38, 40, available at http://aja.ncsc.dni.us/ courtrv/cr36-2/CR36-2Boatright.pdf.

[49]. See John E. Nowak, Jury Trials and First Amendment Values in “Cyber World,” 34 U. Rich. L. Rev. 1213, 1247 (2000) (“[T]he thought that one’s entire life will be open to the government and public through jury service certainly may well deter most people from wanting to serve on a jury.”).

[50]. Brandborg v. Lucas, 891 F. Supp. 352, 356 (E.D. Tex. 1995).

[51]. See United States v. Barnes, 604 F.2d 121, 140 (2d Cir. 1979) (noting that people will “be less . . . willing to serve [on a jury] if they know that inquiry into their essentially private concerns will be pressed”); David Weinstein, Protecting a Juror’s Right to Privacy: Constitutional Constraints and Policy Options, 70 Temp. L. Rev. 1, 3 (1997).

[52]. See Laura B. Martinez, District Attorney to Use Facebook Profiles in Jury Selection, Brownsville Herald, Jan. 17, 2011, http://www.brownsvilleherald.com/articles/district-121729-attorney-use.html.

[53]. See Okun, supra note 8, at 851–53.

[54]. Like attorneys, the media have been quite adept at discovering juror misconduct.

[55]. See supra notes 24–27 and accompanying text. Just as voir dire is not necessarily conducted to seat an impartial juror, the same can be said for online research of jurors: “[V]oir dire examinations are theoretically designed to detect and eliminate bias, [but] they are almost universally employed for quite different objectives. Most counsel seek to employ any bias in favor of their client and eliminate only such bias as is directed against him.” Okun, supra note 8, at 841–42 (second alteration in original).

[56]. Kay, supra note 4, at 1 (“Some jury consultants and lawyers, however, still want to research their juries even after jury selection, for different reasons. For one thing, the information can be used to get a case overturned on appeal if it turns out a juror lied on a questionnaire. Additionally, some consultants and lawyers are beginning to use Internet information they’ve obtained about jurors to influence them during the trial, particularly during closing arguments.”).

[57]. See Nowak, supra note 49, at 1225 (“The attorney with information about cyber activities of potential jurors will be able to use jury challenges for cause, and use preemptive challenges, in a strategically wise manner.”).

[58]. See, e.g., State v. Bessenecker, 404 N.W.2d 134, 138–39 (Iowa 1987) (limiting access to juror information by county attorneys, and requiring county attorneys to disclose to the defense any juror information obtained); Commonwealth v. Smith, 215 N.E.2d 897, 901 (Mass. 1966) (allowing the defense access to juror information obtained by the government); Jeffrey F. Ghent, Annotation, Right of Defense in Criminal Prosecution to Disclosure of Prosecution Information Regarding Prospective Jurors, 86 A.L.R.3d 571, 574 (1978 & Supp. 2010).

[59]. See Ghent, supra note 58, at 574–75 (“Rule 421(a) of the Uniform Rules of Criminal Procedure makes it the duty of the prosecuting attorney, on the defendant’s written request . . . to allow access [to prospective juror reports].”). Some jurisdictions not requiring the release of such information by the prosecutor to defense counsel include Florida, Louisiana, and Texas. See Monahan v. State, 294 So. 2d 401, 402 (Fla. Dist. Ct. App. 1974); State v. Jackson, 450 So. 2d 621, 628 (La. 1984); Martin v. State, 577 S.W.2d 490, 491 (Tex. Crim. App. 1979).

[60]. Model Rules of Prof’l Conduct R. 3.3 cmt. 12 (2008). Tennessee is one of the few states that have a much more expansive rule. Tenn. Rules of Prof’l Conduct R. 3.3(i) (2011) (“A lawyer who, prior to conclusion of the proceeding, comes to know of improper conduct by or toward a juror or a member of the jury pool shall report the improper conduct to the tribunal, even if so doing requires the disclosure of information otherwise protected by RPC 1.6.”).

[61]. U.S. v. Hassoun, No. 0:04cr60001 (S.D. Fla. Aug. 16, 2007).

[62]. See Kay, supra note 4, at 1.

[63]. Id.

[64]. Id.

[65]. See Model Rules of Prof’l Conduct R. 3.3 cmt. 12 (requiring a lawyer “to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person . . . intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding”).

[66]. Jameson Cook, Facebook Post Is Trouble for Juror, Macomb Daily, Aug. 28, 2010, http://www.macombdaily.com/articles/2010/08/28/news/doc4c79c743c66e8112001724.txt.

[67]. Id.

[68]. See Model Rules of Prof’l Conduct R. 3.3 cmt. 12.

[69]. See Cook, supra note 66.

[70]. At present, many jurisdictions have not updated their jury instructions to keep up with technological changes. Hoffmeister, supra note 44.

[71]. In re Stoelting, 784 F. Supp. 886, 886 (S.D. Fla. 1992) (finding a juror who, contrary to the court’s instructions, “view[ed] story pertaining to case in news media and express[ed] her opinion concerning case to another member of jury panel” to be in contempt and fining the juror $250).

[72]. Due to the length of this Article, I do not have space to explain why changing the rules of discovery is superior to changing the Model Rules. However, for a general discussion of this topic, see Michael Cassidy, Plea Bargaining, Discovery and the Looming Battle Over Impeachment Evidence, 64 Vand. L. Rev. 5 (2011).

[73]. At least one other legal commentator has made a similar suggestion. See Nowak, supra note 49, at 1244 (“Statutes or court rules should be adopted at the state and federal level requiring any party to a litigation to provide to the opposing party all information in the party’s possession regarding cyber activities of potential jurors or witnesses.”).

[74]. See Karen Monsen, Privacy for Prospective Jurors at What Price? Distinguishing Privacy Rights From Privacy Interests; Rethinking Procedures to Protect Privacy in Civil and Criminal Cases, 21 Rev. Litig. 285, 286–88 (2002) (detailing the dilemma faced by jurors’ wish to protect their privacy, which must be balanced against society’s desire for this information “to ensure a fair trial for defendants”).

[75]. Jurors, like most people, do not relish the idea of attorneys researching their backgrounds. This displeasure would most likely increase if jurors knew that the information uncovered was used solely for the benefit of one attorney. See Sinclair v. United States, 279 U.S. 749, 765 (1929) (“If those fit for juries understand that they may be freely subjected to treatment like that . . . disclosed [through investigation by detectives], they will either shun the burdens of the service or perform it with disquiet and disgust.”).

[76]. Former University of Chicago law professor emeritus and jury research expert Hans Zeisel noted this potential problem with juror research many decades ago when he stated, “I hate things that benefit the richer side. . . . One side obtains an advantage over the other. . . . If this thing gets out of hand, the courts might begin to say that you have to disclose whatever you have learned to the other side.” Tamar Lewin, Business and the Law; Jury Research: Ethics Argued, N.Y. Times, Mar. 9, 1982, at D2 (quoting Hans Ziesel) (internal quotation marks omitted).

[77]. See, e.g., Ken Armstrong & Justin Mayo, Frustrated Attorney: ‘You Just Can’t Help People,’ Seattle Times, Apr. 6, 2004, http://seattletimes.nwsource.com/news/local/unequaldefense/

stories/three (detailing a public defender’s overwhelming caseload).

[78]. See Johnson v. McCullough, 306 S.W.3d 551, 554 (Mo. 2010) (en banc) (adopting a formal rule that, before the issue of a juror’s nondisclosure may be presented for appeal, the “party must use reasonable efforts to examine the litigation history on Case.net of those jurors selected but not empanelled”).

[79]. See, e.g., Reddicks v. State, 10 S.W.3d 360, 363 (Tex. Ct. App. 1999); Saur v. State, 918 S.W.2d 64, 66 (Tex. Ct. App. 1996); Salazar v. State, 795 S.W.2d 187, 192 (Tex. Crim. App. 1990).

[80]. See, e.g., People v. Martin, 225 N.W.2d 174, 175 (Mich. 1974).

[81]. Richard L. Moskitis, Note, The Constitutional Need for Discovery of Pre–Voir Dire Juror Studies, 49 S. Cal. L. Rev. 597, 632 (1976).

[82]. See Brady v. Maryland, 373 U.S. 83, 88 (1963). It should be noted that to date the U.S. Supreme Court has yet to determine whether Brady applies to attorney work product. Mincey v. Head, 206 F.3d 1106, 1133 n.63 (11th Cir. 2000).

Amid the throes of the Civil War, the U.S. Congress passed the Captured and Abandoned Property Act of 1863, authorizing the federal government to confiscate private property in the seceding states in order to sell it to fund the Department of the Treasury.^[1] Owners of the confiscated property, which was mostly cotton, could claim restitution if they had not aided the rebellion.^[2]

Clever “cotton claimants,” as they became known, pursued two simul­taneous avenues to recovery: (1) suit in the Court of Claims against the United States; and (2) suit in state court against Treasury officials in perso­nam.^[3] The Civil War–era conception of claim preclusion was much more forma­listic than it is today.^[4] At the time, the doctrine only applied if the caption names of the defendants were identical.^[5] Thus, a claim against Secretary of the Treasury “Salmon Chase” would not have precluded the same claim against the “United States.” Congress responded to the scourge of double-filing cotton claimants by passing what is now 28 U.S.C. § 1500, “Pendency of claims in other courts,” by which it intended to impose a mutually exclusive election between the Court of Claims and other courts.^[6]

The U.S. Supreme Court recently issued United States v. Tohono O’odham Nation (Tohono O’odham III),^[7] which offered the Court its first meaningful opportunity to interpret 28 U.S.C. § 1500 in more than a decade.^[8] Tohono O’odham is important because the question of how to delineate between duplicative Bowen v. Massachusetts^[9] claimants (Bowen claimants) and ordinary regulatory takings plaintiffs who must double-file has embroiled the U.S. Court of Federal Claims (CFC) and the U.S. Court of Appeals for the Federal Circuit. Bowen allows for a plaintiff to recover specific (equitable) relief against the government that happens to be monetary, namely through an action in district court under the Administrative Procedure Act (APA).^[10] A Bowen clai­mant also can pursue money damages (legal relief) through an action in the CFC under the Tucker Act.^[11] This possibility has led to a marked increase in dual-forum litigation,^[12] raising complex § 1500 issues. Unless the Supreme Court overrules Bowen in a future case, the CFC must develop a framework to manage the frequent questions of duplicative litigation that will continue to arise so long as Bowen remains good law.^[13] This framework would dis­tin­guish between discretionary Bowen claimants and regulatory takings plaintiffs, who first must file their “necessarily sequential”^[14] claims in district court (challenging adverse agency action) to preserve a “substantial legal right.”^[15]

This Article argues first, that the CFC could and should allow for the stay and abeyance of regulatory takings claims, shielding them from both § 1500 and the CFC’s six-year statute of limitations.^[16] Second, much as Justice John Paul Stevens envisioned in his dissent in Keene Corp. v. United States,^[17] Congress should amend § 1500 to extend stay and abeyance to duplicative Bowen claims pending their disposition in the other courts. Modern preclusion doctrine would apply to the stayed claims. Finally, Congress, or the Supreme Court upon hearing a suitable case, should clarify the proper interpretation of “pending” for purposes of § 1500. The statute should apply in the same manner regardless of the order in which a claimant files in the CFC and the other court.

Part I of this Article examines § 1500’s purpose, while Part II assesses the impact of the Court’s recent Tohono O’odham decision and chronicles the sta­tute’s claim jurisprudence. Next, Part III explores past unsuccessful attempts to repeal the statute, which largely aimed to address the dilemma that § 1500 creates for regulatory takings plaintiffs, a “jurisdictional dance”^[18] known as the “Tucker Act Shuffle.”^[19] Finally, Part IV outlines the steps necessary for reform and concludes that the time finally is right to implement them.

I. The Purpose of Section 1500

A. The 1868 Enactment

In 1868, Vermont Senator George F. Edmunds proposed a bill to curtail duplicative cotton claimants,^[20] explaining:

The object of this [bill] is to put to their election that large class of persons having cotton claims particularly, who have sued the Secretary of the Treasury and the other agents of the Government in more than a hundred suits that are now pending, scattered over the country here and there, and who are here at the same time endeavoring to prosecute their claims, and have filed them in the Court of Claims, so that after they put the Government to the expense of beating them once in a court of law they can turn around and try the whole question in the Court of Claims. The object is to put that class of persons to their election either to leave the Court of Claims or to leave the other courts. I am sure everybody will agree to that.^[21]

Congress passed what is now 28 U.S.C. § 1500 later that year, directing:

That no person shall file or prosecute any claim or suit in the [C]ourt of [C]laims, or an appeal therefrom, for or in respect to which he or any assignee of his shall have commenced and has pending any suit or process in any court against any officer or person who, at the time of the cause of action alleged in such suit or process arose, was in respect thereto acting or professing to act, mediately or immediately, under the authority of the United States.^[22]

First and foremost, the purpose of the 1868 Act was to induce cotton clai­mants “either to leave the Court of Claims or to leave the other courts.”^[23] Congress was concerned with duplicative litigation but accepted that a plaintiff could have prosecuted a singular action in either the Court of Claims or the other courts at his or her election. Senator Edmunds’s “try the whole question [again]”^[24] language suggests that the plaintiff’s election of one venue would have been mutually exclusive of the other. By allowing plaintiffs only a mutually exclusive election, Congress acted to minimize jurisdictional conflict. Thus, the purpose of the 1868 Act was to force upon cotton claimants a mutually exclu­sive election between the Court of Claims and the other courts, so as to minimize jurisdictional conflict and to preclude duplicative claims.^[25]

B. The 1874 Modernization

In 1874, Congress embarked upon a broad statutory modernization effort, which included minimal updates to the text of the 1868 Act.^[26] Representative Benjamin Franklin Butler of Massachusetts, who led that effort, explained:^[27]

We have not attempted to change the law, in a single word or letter, so as to make a different reading or different sense. All that has been done is to strike out the obsolete parts and to condense and consolidate and bring together statutes in pari materia; so that you have here, except insofar as it is human to err, the laws of the United States under which we now live.^[28]

The purpose of what is now 28 U.S.C. § 1500 remained unaltered by the 1874 modernization: to force upon plaintiffs a mutually exclusive election between the Court of Claims and the other courts so as to minimize jurisdic­tional conflict and to preclude duplicative claims. In 1911, Congress codified the 1874 text without amendment,^[29] and the statute remained unchanged for another thirty-seven years.

C. The 1948 Codification

In 1948, Congress created 28 U.S.C. § 1500, deriving its text from a revision of § 154 of the Judicial Code of 1911:

The Court of Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.^[30]

Notably, Congress added the language “against the United States” to supersede a Supreme Court statutory interpretation, which had undermined the statute’s claim preclusion function.^[31] Congress also replaced the 1911 text’s specific “file or prosecute” language with a general reference to “jurisdiction.”^[32] However, according to the Court, that replacement did not indicate anything “more than a change ‘in phraseology.’”^[33] Other than making insubstantial revisions to account for the CFC’s two changes in name,^[34] Congress has not modified the text of § 1500 since 1948.

II. Section 1500 “Claim” Jurisprudence and the Implications
of United States v. Tohono O’odham Nation

Under current Supreme Court and Federal Circuit precedent, the CFC lacks jurisdiction under 28 U.S.C. § 1500 if the claim before the CFC arose from substantially the same operative facts as any earlier-filed claim pending in another court,^[35] regardless of relief sought. In other words, the statute applies if substantially the same claim (the claim prong) already is pending in another court (the pending prong). Tohono O’odham implicated the claim prong. However, as discussed in Part IV, complete § 1500 reform will require addressing the pending prong as well.

A. The Recent Tohono O’odham Controversy

The Tohono O’odham Nation is an Indian tribe (Tribe).^[36] In 1976, the United States paid the Tribe $26 million to settle a claim for takings and trespass.^[37] The government now holds that money in trust, in addition to income derived from the Tribe’s approximately three million acres of land.^[38]

On December 28, 2006, the Tribe brought suit against various federal offi­cials in district court, alleging a breach of fiduciary duty in the management of its trust assets.^[39] The Tribe primarily requested a decree for the government to provide an accounting of its trust assets and a restatement of its trust fund account balances in accordance with that accounting.^[40] The next day, on December 29, 2006, the Tribe brought suit against the “United States” in the CFC. Before the CFC, the Tribe primarily requested a determina­tion that the gov­ernment was liable to it for injuries and losses resulting from the gov­ernment’s alleged breach of fiduciary duty, as well as damages due to the Tribe.^[41] The government interposed § 1500 and moved to dismiss the claim before the CFC.^[42] At issue in Tohono O’odham was whether “a common fac­tual basis like the one apparent in the [Tribe’s] suits suffices to bar jurisdiction under § 1500.”^[43]

1. The Government’s Motion to Dismiss Before the CFC

Granting the government’s motion, CFC Judge Eric G. Bruggink interpreted the statute to apply where “there is meaningful overlap both in the underlying facts and in the relief sought.”^[44] Here, he found the underlying facts to be the same.^[45] His analysis in Tohono O’odham I therefore hinged on the relief sought.

To determine whether there was “meaningful overlap” in the relief sought, Judge Bruggink weighed two competing considerations.^[46] On the one hand, the Tribe prayed for an accounting^[47] and for money^[48] in both courts. On the other hand, the Tribe explicitly framed its requests before the district court as being for declaratory and other equitable relief, and its requests before the CFC as being for money damages (legal relief).^[49] Despite that distinction, Judge Bruggink found that there was “virtually 100 percent overlap” between the respective sets of requests.^[50] He added, “A perfect symmetry of demands for relief is not necessary [to implicate § 1500].”^[51]

2. The Tribe’s Appeal to the Federal Circuit

On appeal in Tohono O’odham II, a Federal Circuit panel reversed the CFC’s holding.^[52] The panel reasoned that the Tribe had requested an accounting only from the district court;^[53] whereas, from the CFC, the Tribe had requested solely damages.^[54] The panel stated, “it is the relief that the plaintiff requests that is relevant under § 1500,”^[55] and observed that the Tribe’s “prayer for relief in the Court of Federal Claims [did] not request an accounting.”^[56] It further noted that the presumed need for an accounting to determine the proper amount of damages “[did] not transform the Nation’s unambiguous request for damages into a request for an accounting.”^[57]

The panel similarly analyzed the Tribe’s dual prayers for money. It reasoned that the Tribe’s request for “a decree providing for the restatement of the Nation’s trust fund account balances” was for “old money,”^[58] that is, money already belonging to the Tribe, which erroneously was unaccounted for in the Tribe’s trust fund balances. In contrast, the panel reasoned that the Tribe’s request “[f]or a determination that the Defendant is liable to the Nation in damages for the injuries and losses caused as a result of Defendant’s breaches of fiduciary duty” was for “new money,”^[59] that is, money the Tribe would have earned, but for the alleged fiduciary mismanagement. The panel therefore concluded that there was no overlap in the relief the Tribe requested.^[60]

3. The Government’s Successful Appeal to the Supreme Court

Recently, in Tohono O’odham III, the Supreme Court reversed the Federal Circuit’s ruling.^[61] Writing for the majority, Justice Anthony M. Kennedy observed that the purpose of § 1500 is “to save the Government from burdens of redundant litigation,”^[62] including “[d]eveloping a factual record.”^[63] Effectively overruling Casman v. United States,^[64] the majority rejected a reading of the statute focused on the relief sought, which would transform § 1500 into “a mere pleading rule, to be circumvented by carving up a single transaction into overlapping pieces seeking different relief.”^[65] The majority held: “Two suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit.”^[66]

B. Preceding Claim Prong Jurisprudence

1. Keene Corp. v. United States

The Supreme Court’s last significant § 1500 ruling, Keene Corp. v. United States in 1993,^[67] also had concerned the statute’s claim prong. In Keene, the Court synthesized three holdings from the 1920s and 1930s. It ruled that the sta­tute deprives the CFC of jurisdiction when a plaintiff has a claim pending in another court predicated on “substantially the same operative facts,” irres­pective of the legal theory on which the claim was based.^[68] The Court reasoned that Congress was aware of settled judicial interpretations of § 154 of the 1911 text and therefore adopted those interpretations when it codified § 1500 in 1948.^[69]

2. Justice Stevens’s Keene Dissent

Justice Stevens dissented from the eight-to-one Keene majority.^[70] Focusing on the pending prong instead of the claim prong, he reasoned that it should not be necessary for the CFC to dismiss an action just because a plaintiff already has filed another action on the same claim before another court.^[71] Under Justice Stevens’s interpretation, the CFC would retain the case on its docket until the disposition of the action in the other court.^[72] The action before the CFC automatically would reinstate upon dismissal of the other action.^[73] In Tohono O’odham III, both Justice Sonia Sotomayor^[74] and Justice Ruth Bader Ginsburg^[75] agreed with Justice Stevens, in expressing their belief that stay and abeyance is possible without additional legislation.^[76]

3. Loveladies Harbor, Inc. v. United States

Keene left unresolved whether two actions based on the same operative facts but requesting different relief would implicate § 1500’s jurisdictional bar by constituting the same claim.^[77] The Federal Circuit addressed that question en banc in Loveladies Harbor, Inc. v. United States,^[78] one year after Keene. Loveladies Harbor involved an APA claim challenging a permit denial and a Fifth Amendment regulatory takings claim seeking compensation for the denial.^[79] The Federal Circuit asserted that overlap in legal theory does not necessarily mean overlap in relief.^[80] Reviving Casman,^[81] it held that § 1500 does not deprive the CFC of jurisdiction when a plaintiff has an action pending in another court based on the same operative facts but is seeking “distinctly dif­ferent” relief.^[82] By overruling Casman, the Tohono O’odham III majority effec­tively overruled the “distinctly different” test from Loveladies Harbor as well.^[83]

Additionally, the Loveladies Harbor court provided that § 1500 should not place claimants “in the position of having to give up a substantial legal right protected by the Takings Clause of the Constitution.”^[84] The court proceeded to cite approvingly to Aulston v. United States,^[85] in which the Federal Circuit directed the Claims Court to stay a takings claim pending an APA challenge to an adverse title determination in district court.^[86]

III. Past Unsuccessful Attempts to Repeal Section 1500

A. The 1992 Attempt at Repeal

In 1992, Senator Howell T. Heflin^[87] introduced the Court of Federal Claims Technical and Procedural Improvement Act,^[88] which sought to repeal 28 U.S.C. § 1500. Senator Heflin introduced his bill several weeks before the Federal Circuit was to address § 1500 en banc in UNR Industries, Inc. v. United States.^[89] He offered it as an amendment to the Federal Courts Administration Act of 1992,^[90] which ultimately became law in October 1992 without the amendment.^[91]

An April 1992 hearing held less than a week after the UNR Industries ruling sheds light on the ultimate failure of Senator Heflin’s bill. Loren A. Smith, then–Chief Judge of the Claims Court, presented a statement in favor of the bill:^[92]

Although, on its face, § 1500 may appear to prevent wasteful duplic­ative litigation, in practice it has had precisely the opposite effect. Elimina­tion of this jurisdictional bar to suits related to cases in other courts will save much wasteful litigation over non-merits issues and will leave the court free to deal with potential duplication through discre­tionary means. The Court can stay duplicative litigation, if the matter is being addressed in another forum, or proceed with the case, if the matter appears to be stalled in the other forum.^[93]

Stuart E. Schiffer, then–Deputy Assistant Attorney General, presented the prevailing counterargument.^[94] Mr. Schiffer asserted that “Section 1500 is a very straightforward provision which simply provides that the Claims Court shall not have jurisdiction over any claim where the same claim is pending in another court.”^[95] He proceeded to quote from that week’s UNR Industries deci­sion, which found the rationale behind “requiring a party to carefully assess his claims before filing and choose the forum best suited to the merits of the claim”^[96] to be “even more salutary in this day of excessive litigation” than at the time § 1500 was adopted.^[97] Thus, the 1992 attempt to repeal § 1500 stalled in the face of the Federal Circuit’s sweeping reinterpretation of the statute in UNR Industries. The Supreme Court only later limited that reinterpretation in Keene.^[98]

B. Subsequent Attempts at Repeal

By the mid-1990s, repeal of § 1500 had become a partisan issue. Increa­singly, the political parties disagreed over the appropriate ease of regulatory takings claims against the government.

As Loveladies Harbor^[99] illustrates, a potential regulatory takings plaintiff faces a dilemma.^[100] If the plaintiff prefers to challenge an adverse agency action rather than merely recover compensation for any taking that action effectuates, he or she would file first in district court under the APA. However, by the time the plaintiff exhausts all appeals challenging the agency, it is possible the CFC’s six-year statute of limitations^[101] would have run, barring suit in that court. Once the plaintiff proceeds in the CFC, he or she might recover compensation for a taking but could not further challenge the agency action. This dilemma attracted congressional attention^[102] and the moniker, the “Tucker Act Shuffle.”^[103]

Besides Senator Heflin’s bill, Congress considered six other bills to repeal § 1500 throughout the 1990s.^[104] In each bill, support for or opposition to repeal fell largely along party lines, with Republicans generally in support and Democrats generally in opposition.^[105] No member of Congress has introduced a bill to repeal or amend § 1500 since May 1999.^[106]

IV. The Necessary Steps to Reform Section 1500

This Part details the necessary steps to reform 28 U.S.C. § 1500 and argues that the time is finally right to implement them. As a practical matter, it remains uncertain whether the present Supreme Court would overrule Bowen v. Massachusetts.^[107] Nevertheless, the proceeding three-step reform, which would distinguish between discretionary Bowen and “necessarily sequential” regulatory takings plaintiffs, would be an effective alternative to overrule.

First, going forward, the CFC should interpret the “substantial legal right” test from Loveladies Harbor, Inc. v. United States^[108] to allow for the stay and abeyance of “necessarily sequential” regulatory takings claims before the CFC, pending their disposition in district court. This interpretation would remain true to § 1500’s jurisdictional conflict-prevention purpose, yet would be predictable for litigants and administrable for lower courts. Second, Congress should amend the statute to allow for the stay and abeyance of duplicative Bowen claims as well. Modern preclusion doctrine would apply to the stayed claims. Finally, § 1500 should apply in the same manner regardless of the order in which a plaintiff files in the CFC and the other court. Either the Supreme Court should reconsider contrary Federal Circuit pending prong precedent in a future case or Congress should supersede that precedent.

A. Preserving the “Substantial Legal Rights” of Regulatory Takings Claimants in Light of Tohono O’odham

In UNR Industries, Inc. v. United States,^[109] decided in April 1992, the en banc Federal Circuit repudiated Casman v. United States,^[110] which distinguished between claims that requested different relief.^[111] While the Supreme Court ulti­mately ruled that addressing Casman was unnecessary to decide Keene,^[112] the Court did not express either support for or opposition to its overrule.^[113] By May 1994, in Loveladies Harbor, the en banc Federal Circuit had rehabili­tated Casman.^[114]

United States v. Tohono O’odham Nation^[115] raised the question of whether the Loveladies Harbor court was correct to spare duplicative claims from § 1500, on the basis of the relief each claim sought. The Supreme Court correctly overruled the Federal Circuit’s means (sparing “distinctly different” claims) but not its end (sparing duplicative claims where double-filing was required to preserve a “substantial legal right”).^[116] Such claims do not create jurisdictional conflict. To be sure, filing sequential claims is necessary for any private property owner who desires both to challenge adverse agency action and to receive just compensation for his or her loss.^[117] To test whether a duplicative claim preserves a “substantial legal right,” and therefore is appropriate for stay and abeyance, the CFC should employ a “necessarily sequential” standard.^[118]

1. The Supreme Court Was Correct to Reject the Federal Circuit’s “Distinctly Different” Test

In Tohono O’odham III, the Supreme Court was correct to reverse the Federal Circuit’s “technical law-equity distinction.”^[119] The Tohono O’odham II panel’s hairsplitting between “old money” and “new money” provided only minimal protection for the unwary and would have led to inconsistent judicial outcomes.^[120] At the CFC level, it is likely that many of the same plaintiffs who already were unaware of the pending prong’s order-of-filing rule^[121] would have been equally oblivious to the linguistic parsing necessary to avert § 1500’s appli­cation under the panel’s approach.^[122] The “distinctly different” test, as applied in Tohono O’odham II to distinguish between express requests for “old money” and “new money,” would not have saved their claims. Additionally, under the panel’s approach, future Federal Circuit judges engaged in fact-sensitive parsing might have reached inconsistent and unpredictable outcomes when reviewing dismissals from the CFC.^[123]

Moreover, if a law-equity distinction between claims were pertinent to § 1500, the statute would not have applied in Keene.^[124] After all, Keene involved a third-party action in district court for indemnification or contribution, and a damages action in the CFC for breach of implied warranties.^[125]

By comparison, a “necessarily sequential” standard would protect regula­tory takings plaintiffs, who must file sequentially, without sacrificing ease of judicial administration or contradicting the purpose of § 1500. While sympa­thetic Bowen claimants, like the Tribe in Tohono O’odham, would not benefit from this interpretation,^[126] such ineligible double-filers would be better served by pursuing congressional references^[127] or, where justified, professional malpractice suits against their attorneys. Under Tohono O’odham III, Bowen claimants who overlook the order-of-filing loophole will be unable to survive a motion to dismiss in the CFC regardless. Their salvation lies with Congress.^[128]

2. The CFC Should Employ a “Necessarily Sequential” Test Instead

A “necessarily sequential” test would build on the logic of Pennsylvania Railroad Co. v. United States,^[129] Loveladies Harbor, and Aulston v. United States^[130] without opening the floodgates to every Bowen claimant. It gives those claimants who have no choice but to file multiple claims in multiple courts in a specific order the flexibility to do so without fearing an arbitrary statute of limitations bar. At the same time, its application would be relatively predictable and administrable without reading § 1500 out of existence. By providing a workable standard to identify duplicative claims required to preserve a “substan­tial legal right,” a “necessarily sequential” test would eliminate § 1500’s “traps for the unwary”^[131] without accelerating the wasteful “litigation about where to litigate”^[132] that Justice Antonin Scalia predicted in his Bowen dissent.

B. Reform Legislation for Bowen Claimants

1. Congress Should Amend Section 1500 to Extend Stay and Abeyance
to Duplicative Bowen Claims

Congress should extend stay and abeyance to Bowen claimants by amending § 1500 to adopt the procedure that Justice Stevens first outlined in his Keene dissent.^[133] Stay and abeyance (rather than repeal) would allay past concerns about constitutional overreach by the CFC^[134] and about unbounded regulatory takings litigation.^[135] In addition, stay and abeyance would minimize jurisdictional conflict without frustrating the otherwise legitimate claims of vulnerable Bowen claimants. As Judge Bruggink observed in Tohono O’odham I,^[136] modern preclusion doctrine would act as a backstop to foreclose those claims against the government that truly are duplicative.^[137] And, as then–Chief Judge Loren Smith noted in 1992, today’s computerized dockets would allow the Justice Department, the CFC, and the other courts to identify and manage those preclusion issues with relative ease.^[138] Rather than attempt repeal again, Congress instead should amend § 1500 to extend stay and abeyance to Bowen claimants^[139] and to codify it for regulatory takings plaintiffs.

2. The Time Is Finally Right for Reform Legislation

The time is right to amend § 1500. In 1995, the Judicial Conference expressed its willingness not to oppose repeal of the statute if “accompanied by a provision for stay or transfer of duplicative claims.”^[140] More recently, the Administrative Conference of the United States^[141] has labeled § 1500 a “purposeless procedural trap.”^[142] Additionally, the CFC has taken to warning pro se filers of the statute’s existence.^[143] The legal system no longer can tolerate the status quo.

Congressional Democrats should be more receptive to reform as well. In 1992, Bowen was not yet five years old and the implications of the decision’s interaction with § 1500 were not fully understandable. Today, it is apparent that unwary Bowen claimants regularly will double-file. Unlike regulatory takings plaintiffs who want to challenge agency action, these claimants gain little from double-filing and often do so more out of inexperience than strategic design. In practice, the statute acts to trap sympathetic litigants like the Tribe and to provoke complex litigation about where to litigate that might even trump the government’s expense of defending against double-filing claimants.

Although the Keene majority broke with Justice Stevens by an 8–1 margin, the majority’s position was not a rejection of his approach. Rather, the majority recognized that stay and abeyance for non–“necessarily sequential” claimants (like the litigants in Keene) called for legislative revision rather than legal rule.^[144] Congress should take its cue from Justice Stevens’s Keene dissent and amend § 1500 to extend stay and abeyance to Bowen claims.

C. Congress or the Supreme Court Should Eliminate the Pending Prong’s Order-of-Filing Loophole

Congress, or the Supreme Court upon hearing a suitable case, should close the judicially created order-of-filing loophole that allows a claimant to bypass § 1500 merely by filing in the CFC before filing in another court.^[145] This interpretation of the statute’s pending prong is entirely at odds with its intended purpose. The order-of-filing rule destroys the exclusivity of any election between the CFC and the other courts, creating jurisdictional conflict. Perversely, it encourages plaintiffs to double-file in order to preserve access to the CFC.^[146]

As with § 1500 jurisprudence as a whole, pending prong judicial development has been “erratic.”^[147] The Federal Circuit had overruled the order-of-filing rule in UNR Industries,^[148] but the Supreme Court revived it on appeal in Keene.^[149] As with the recently repudiated rule from Casman,^[150] which distin­guished between claims requesting different remedies, the Supreme Court merely found that the facts of Keene did not implicate the order-of-filing rule. The Court did not take a position on the rule’s desirability. In 1995,^[151] the Federal Circuit completed its retreat from UNR Industries by reaffirming the order-of-filing rule.

Pending prong jurisprudence recently reached a crossroads. In Tohono O’odham II,^[152] the Federal Circuit panel cited the order-of-filing rule to justify reading § 1500 nearly out of existence. The panel asserted, “In practice, § 1500 does not actually prevent a plaintiff from filing two actions seeking the same relief for the same claims. It merely requires that the plaintiff file its action in the Court of Federal Claims before it files its district court com­plaint.”^[153] The panel concluded, “Because a party can simply file its Court of Federal Claims action first and avoid § 1500 entirely, it functions as nothing more than a ‘jurisdictional dance.’”^[154]

In Tohono O’odham III, the Supreme Court found that reasoning to be circular.^[155] After all, it is the order-of-filing rule that serves no purpose if it renders § 1500 nothing more than the jurisdictional dance known as the “Tucker Act Shuffle.”^[156] Thus, Congress or the Supreme Court should elimi­nate the pending prong’s order-of-filing rule to conform with § 1500’s intended purpose: to prevent jurisdictional conflict and to preclude duplica­tive claims.

Conclusion

After United States v. Tohono O’odham Nation,^[157] both the text of 28 U.S.C. § 1500 and the jurisprudence interpreting it are in need of reform. The Supreme Court’s Bowen v. Massachusetts^[158] decision has allowed into district court many claimants seeking specific monetary relief from the government. These claimants also can seek money damages in the CFC. At the same time, reg­ulatory takings and other “necessarily sequential” plaintiffs regularly double-file out of necessity. Thorny § 1500 questions have become plentiful in this environment, creating the need for reform.

Going forward, the CFC should allow for the stay and abeyance of those claims that are duplicative simply to preserve a “substantial legal right,”^[159] by testing whether or not the claims are “necessarily sequential.” This interpreta­tion would remain true to § 1500’s jurisdictional conflict-prevention purpose, yet would be predictable for litigants and administrable for lower courts. It would allow for necessary regulatory takings claims in both courts without opening the floodgates to duplicative litigation in contravention of the statute.

Additionally, Congress should amend § 1500 to extend stay and abeyance to duplicative Bowen claims before the CFC pending their disposition in the other courts. Modern preclusion doctrine would apply to the stayed claims. Finally, the Supreme Court should overrule the pending prong’s order-of-filing rule upon a suitable case or Congress should supersede it by statute. The order in which a plaintiff files in the CFC and another court should have no bearing on the applicability of § 1500.

In recent years, various permutations of § 1500 issues have come before the CFC, turning words and phrases like “claim,” “pending,” and “distinctly different” into terms of art. It is time for Congress and the courts to relieve “footloose” litigants from Tucker Act Shuffle fatigue.

[1]. See Act of Mar. 3, 1863, ch. 120, 12 Stat. 820; Payson R. Peabody et al., A Confederate Ghost That Haunts the Federal Courts: The Case for Repeal of 28 U.S.C. § 1500, 4 Fed. Cir. B.J. 95, 98 (1994).

[2]. See § 3, 12 Stat. at 820; Peabody et al., supra note 1, at 98–99.

[3]. Peabody et al., supra note 1, at 99 n.13, 100. See generally David Schwartz, Symposium, The United States Court of Claims: Section 1500 of the Judicial Code and Duplicate Suits Against the Government and Its Agents, 55 Geo. L.J. 573, 574–80 (1967) (providing greater detail on the cotton claimants’ maneuverings). Under the second approach, the claimants would evade the bar of sovereign immunity by alleging the common law torts of conversion and trespass against the officials in their personal capacities. See United States v. Lee, 106 U.S. 196 (1882) (upholding this strategy decades later in another Civil War–era dispute). Inevitably, the officials would seek removal to federal court pursuant to an 1833 statute mandating federal jurisdiction over suits against Treasury officials. See, e.g., Dennistoun v. Draper, 7 F. Cas. 488, 488–89 (C.C.S.D.N.Y. 1866) (No. 3804) (applying Act of Mar. 2, 1833, ch. 57, § 3, 4 Stat. 633).

[4]. See Keene Corp. v. United States, 508 U.S. 200, 214 n.8 (1993); Nevada v. United States, 463 U.S. 110, 130–31 (1983).

[5]. See Keene, 508 U.S. at 214 n.8.

[6]. See Cong. Globe, 40th Cong., 2d Sess. 2769 (1868) (“The object is to put . . . to their election either to leave the Court of Claims or to leave the other courts.”).

[7]. 131 S. Ct. 1723 (2011) (Tohono O’odham III), rev’g Tohono O’odham Nation v. United States (Tohono O’odham II), 559 F.3d 1284 (Fed. Cir. 2009).

[8]. See Keene, 508 U.S. 200.

[9]. 487 U.S. 879 (1988).

[10]. Act of June 11, 1946, ch. 324, 60 Stat. 237 (codified as amended in scattered sections of 5 U.S.C.).

[11]. 28 U.S.C. § 1346(a)(2) (2006).

[12]. See generally Brief of Professor Gregory C. Sisk as Amicus Curiae in Support of Neither Party, Tohono O’odham III, 131 S. Ct. 1723 (No. 09-846), 2010 WL 3198843 (arguing for the Court to use Tohono O’odham to overrule Bowen).

[13]. At Oral Argument on November 1, 2010, Justice Antonin Scalia indicated a willingness to limit the ambit of Bowen: “Your argument assumes that there is available in the district courts injunctive relief under the Administrative Procedure Act (APA), and that is far from clear, even after Bowen, it’s far from clear if you had any business being in the district court anyway.” Oral Argument at 27:05, Tohono O’odham III, 131 S. Ct. 1723 (No. 09-846), available at http:// www.oyez.org/print/66580. Justice Scalia had dissented in Bowen. 487 U.S. at 913–30 (Scalia, J., dissenting). However, neither party argued to overrule Bowen in its brief, and neither lower court raised the prospect of doing so. The Court did not use Tohono O’odham III to overrule Bowen. It remains unclear whether the Court would consider overruling if confronted with the issue more directly. Writing for the Tohono O’odham III majority, Justice Anthony M. Kennedy noted that the Bowen claimant party to the litigation “could have filed in the CFC alone and if successful obtained monetary relief to compensate for any losses.” 131 S. Ct. at 1730. On the other hand, in her separate concurrence, Justice Sonia M. Sotomayor seemingly reaffirmed Bowen by writing, in a sentence immediately proceeding a citation to Bowen, “A plaintiff seeking both money damages and injunctive relief to remedy distinct harms arising from the same set of facts may be forced to file actions in both the CFC and federal district court.” Id. at 1734 (Sotomayor, J., concurring).

[14]. A necessarily sequential test differentiates between claims that could be filed in either order, like the average Bowen claim for specific relief and Tucker Act claim for money damages, and claims that must be filed in sequence, like an APA challenge followed by an inverse condemnation claim.

[15]. Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1555 (Fed. Cir. 1994) (en banc) (8–3 decision) (discussing Pa. R.R. Co. v. United States, 363 U.S. 202, 205–06 (1960); Aulston v. United States, 823 F.2d 510 (Fed. Cir. 1987)); see also Creppel v. United States, 41 F.3d 627, 633 (1994) (applying Pa. R.R. Co., 363 U.S. 202; Loveladies Harbor, 27 F.3d 1545; Aulston, 823 F.2d 510). In Pennsylvania Railroad Co., the Supreme Court ruled that the Court of Claims had “a duty to stay its proceedings” pending the review of an agency’s order for which only a district court had jurisdiction. 363 U.S. at 205–06. And, in Aulston, the Federal Circuit held that in order to pursue a takings claim before the U.S. Claims Court, a claimant first had to obtain a proper reversal, in district court under the APA, of adverse agency action concerning title. 823 F.2d at 51. The court added, “[J]ustice requires that the Claims Court action should be stayed pending resolution of the issues in a district court proceeding.” Id. at 514. It directed the Claims Court to hold the litigants’ takings claim “on its docket in suspension for such time as is reasonably necessary for [litigants] to challenge the [agency] decision in a district court and, if successful there, to return promptly to the Claims Court.” Id. This Article proposes a “necessarily sequential” test as the proper means of identifying a duplicative claim whose preceding claim was required to preserve a substantial legal right.

[16]. 28 U.S.C. § 2501.

[17]. 508 U.S. 200, 219–20 (1993) (Stevens, J., dissenting) (citing Hossein v. United States, 218 Ct. Cl. 727 (1978) (per curiam); Brown v. United States, 175 Ct. Cl. 343 (1966) (per curiam), both of which the majority in Keene overruled, 508 U.S. at 217 n.12).

[18]. Loveladies Harbor, 27 F.3d at 1549.

[19]. See, e.g., H.R. Rep. No. 105-424, at 2 (1998) (“H.R. 992 is intended to end the ‘Tucker Act Shuffles’ that currently can bounce property owners between U.S. District Courts and the Court of Federal Claims when seeking redress against the federal government for the taking of their property.”).

[20]. See supra Introduction and notes 1–6.

[21]. Cong. Globe, 40th Cong., 2d Sess. 2769 (1868) (emphasis added).

[22]. Act of June 25, 1868, ch. 71, § 8, 15 Stat. 77 (the 1868 Act) (emphasis omitted).

[23]. Cong. Globe 2769.

[24]. Id.

[25]. While this Article argues that the 1868 Act forced a mutually exclusive election, the courts regularly have reinterpreted this aspect of the statute’s purpose throughout its history. See Griffin v. United States, 85 Fed. Cl. 179, 191–92 (2008), aff’d, 590 F.3d 1291 (Fed. Cir. 2009), reh’g en banc denied, 621 F.3d 1363 (Fed. Cir. 2010) (“[T]he jurisprudence in this area appears to undergo a sea change every generation or so.”). Admittedly, the 1868 Act was poorly written, which has led to lingering disputes about the intent behind the original language and the significance of any updates to it. Compare Tohono O’odham III, 131 S. Ct. 1723, 1730 (2011) (“[T]he statute’s purpose is clear from its origins with the cotton claimants—the need to save the government from burdens of redundant litigation—and that purpose is no less significant today.”), with id. at 1736 n.7 (Sotomayor, J., concurring) (“Because § 1500’s jurisdictional bar applies only when the other suit is pending, ‘there is a good argument that, even when first enacted, the statute did not actually perform the preclusion function emphasized by its sponsor.’” (quoting Keene Corp. v. United States, 508 U.S. 200, 217 (1993))).

[26]. See Revised Statutes of the United States, Act Effective Dec. 1, 1873, ch. 21, § 1067, 18 Stat. 197.

[27]. Representative Butler chaired the Committee on the Revision of the Laws in the forty-second Congress (March 4, 1871–March 4, 1873). See H.R. Misc. Doc. No. 3, at 7 (1872). He subsequently chaired the Committee on the Judiciary in the forty-third Congress (March 4, 1873–March 4, 1875). See H.R. Misc. Doc. No. 2, at 5 (1875).

[28]. 2 Cong. Rec. 129 (1873).

[29]. See Act of March 3, 1911, ch. 231, § 154, 36 Stat. 1138 (codified at 28 U.S.C. § 260 (1940)).

[30]. Act of June 25, 1948, ch. 646, § 1500, 62 Stat. 942 (codified as amended at 28 U.S.C. § 1500 (2006)). Put more simply, today, the CFC “has no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending against the United States or its agents.” Tohono O’odham III, 131 S. Ct. at 1727.

[31]. See Tohono O’odham III, 131 S. Ct. at 1730; Keene Corp. v. United States, 508 U.S. 200, 211 n.5 (1993) (discussing Matson Navigation Co. v. United States, 284 U.S. 352, 355–56 (1932) (restricting the ambit of the 1911 text to suits against “agent[s] of the government” but not suits against “the United States”), superseded by statute, § 1500, 62 Stat. at 942). The Court’s Matson Navigation interpretation aligned with the 19th Century conception of sovereign immunity. See, e.g., United States v. Lee, 106 U.S. 196 (1882) (allowing only for suits against agents of the government); see also supra note 3. However, by 1948, Congress already had enacted two limited waivers to suits against the United States. See Federal Tort Claims Act of Aug. 2, 1946, ch. 753, 60 Stat. 842 (repealed and reenacted 1948); Tucker Act of Mar. 3, 1887, ch. 359, 24 Stat. 505; see also Tohono O’odham III, 131 S. Ct. at 1733–34 (Sotomayor, J., concurring) (“Since the enactment of § 1500 in 1868, Congress has expanded the avenues by which persons with legitimate claims against the United States may obtain relief.”). These waivers of sovereign immunity necessitated a broadening of § 1500 for the statute to remain effective.

[32]. Compare § 154, 36 Stat. at 1138, with § 1500, 62 Stat. at 942.

[33]. Keene, 508 U.S. at 209 (quoting H.R. Rep. No. 80-308, at A140 (1947)).

[34]. See Federal Courts Administration Act of 1992, Pub. L. No. 102-572, § 902, 106 Stat. 4516 (renaming the “United States Claims Court” the “United States Court of Federal Claims”); Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, § 133(e)(1), 96 Stat. 40 (renaming the trial division of the “Court of Claims” the “United States Claims Court”).

[35]. Tohono O’odham III, 131 S. Ct. at 1731.

[36]. Tohono O’odham II, 559 F.3d 1284, 1285 (Fed. Cir. 2009).

[37]. Id.

[38]. Id.

[39]. Id. This pattern of allegations by an Indian tribe against the government for mismanagement of trust assets is relatively common. See, e.g., Cobell v. Salazar, 573 F.3d 808 (D.C. Cir. 2009). The tribes often file first in district court for relief framed as an accounting and then in the CFC for relief framed as damages (as the Tohono O’odham did). However, unlike for other Bowen claimants, the statute of limitations for Indian claims in the CFC does not begin running until the filing tribe has received an appropriate accounting. Tohono O’odham III, 131 S. Ct. at 1731 (citing to 123 Stat. 2922 and 104 Stat. 1930 as examples). But see id. at 1735 n.5 (Sotomayor, J., concurring) (cautioning that the statute of limitations does not toll for claims concerning tangible assets, such as mineral estates).

[40]. Tohono O’odham II, 559 F.3d at 1285–86 (quoting District Court Complaint at 18–19, Tohono O’odham Nation v. United States (Tohono O’odham I), 79 Fed. Cl. 645 (2007) (No. 1:06-CV02236)).

[41]. Id. at 1286 (quoting CFC Complaint at 13, Tohono O’odham I, 79 Fed. Cl. 645 (No. 06-CV-944)).

[42]. Tohono O’odham I, 79 Fed. Cl. at 646, rev’d, 559 F.3d 1284 (Fed. Cir. 2009).

[43]. Tohono O’odham III, 131 S. Ct. at 1727.

[44]. Tohono O’odham I, 79 Fed. Cl. at 656.

[45]. Id.

[46]. See id.

[47]. Id. Compare Tohono O’odham II, 559 F.3d 1284, 1286 (Fed. Cir. 2009) (“[A] decree directing the defendants . . . to provide a complete, accurate, and adequate accounting of the Nation’s trust assets . . . and . . . to comply with all other fiduciary duties . . . .”), with Tohono O’odham I, 79 Fed. Cl. at 656 (“[A] determination of the amount of damages due . . . .”).

[48]. Tohono O’odham I, 79 Fed. Cl. at 656. Compare Tohono O’odham II, 559 F.3d at 1286 (“[A] decree providing for the restatement of the Nation’s trust fund account balances in conformity with this accounting, as well as any additional equitable relief that may be appropriate . . . .”), with Tohono O’odham I, 79 Fed. Cl. at 651 (“[A] determination that the Defendant is liable to the Nation in damages for the injuries and losses caused as a result of Defendant’s breaches of fiduciary duty.”).

[49]. See Tohono O’odham I, 79 Fed. Cl. at 656.

[50]. Id. at 656–57 (emphasis added).

[51]. Id. at 656.

[52]. Tohono O’odham II, 559 F.3d 1284.

[53]. See id. at 1291.

[54]. See id.

[55]. Id. (emphasis omitted).

[56]. Id.

[57]. Tohono O’odham II, 559 F.3d at 1291.

[58]. Id. at 1286, 1290.

[59]. Id. at 1291.

[60]. See id. at 1289–91.

[61]. Tohono O’odham III, 131 S. Ct. 1723 (2011).

[62]. Id. at 1730.

[63]. Id.

[64]. 135 Ct. Cl. 647 (1956). Casman distinguished between claims requesting different relief. See id. at 649–50. The en banc Federal Circuit repudiated Casman in April of 1992. UNR Indus., Inc. v. United States, 962 F.2d 1013 (Fed. Cir. 1992) (en banc) (9–1 decision), aff’d in part sub nom. Keene Corp. v. United States, 508 U.S. 200 (1993). As clarified infra in Part IV.A, the Supreme Court ultimately ruled that addressing Casman was unnecessary. Keene, 508 U.S. at 216. By May 1994, in Loveladies Harbor v. United States, 27 F.3d 1545, 1551 (Fed Cir. 1994), the Federal Circuit had rehabilitated Casman.

[65]. Tohono O’odham III, 131 S. Ct. at 1730.

[66]. Id. at 1731.

[67]. 508 U.S. 200.

[68]. Id. at 211–12 (“[T]he comparison of the two cases . . . would turn on whether the plaintiff’s other suit was based on substantially the same operative facts as the Court of Claims action. . . . That the two actions were based on different legal theories did not matter.” (discussing Ex parte Skinner & Eddy Corp., 265 U.S. 86, 96 (1924); Corona Coal Co. v. United States, 263 U.S. 537, 539–40 (1924); British Am. Tobacco Co. v. United States, 89 Ct. Cl. 438 (1939) (per curiam))).

[69]. Id. at 212–13. Furthermore, the Court noted, “While the [1948] language does not set the limits of claim identity with any precision, it does make it clear that Congress did not intend the statute to be rendered useless by a narrow concept of identity . . . .” Id. at 213.

[70]. See id. at 218–22 (Stevens, J., dissenting).

[71]. Id. at 218.

[72]. Id. at 219–20 (citing Hossein v. United States, 218 Ct. Cl. 727 (1978) (per curiam); Brown v. United States, 175 Ct. Cl. 343 (1966), both of which the majority in Keene overruled, 508 U.S. at 217 n.12).

[73]. Id. at 222 n.5 (citing Nat’l Steel & Shipbuilding Co. v. United States, 8 Cl. Ct. 274, 275–76 (1985)).

[74]. Tohono O’odham III, 131 S. Ct. 1723, 1737 (2011) (Sotomayor, J., concurring) (“To the extent the majority is concerned about the burdens of parallel discovery, federal courts have ample tools at their disposal, such as stays, to prevent such burdens.”). Justice Stephen G. Breyer joined Justice Sotomayor in her concurrence.

[75]. Id. at 1739–40 (Ginsburg, J., dissenting) (“To avoid both duplication and the running of the statute of limitations, the CFC suit could be stayed while the companion District Court action proceeds . . . . I see no impediment . . . in § 1500 or any other law or rule.”).

[76]. This Article argues that stay and abeyance is possible without additional legislation only for duplicative claims whose preceding claims were required to preserve a substantial legal right, that is, for “necessarily sequential” claims. See infra Part IV.A.2.

[77]. Keene, 508 U.S. at 212 n.6, 214 n.9, 216; see also Casman v. United States, 135 Ct. Cl. 647 (1956). Keene involved two sets of duplicate filings: (1) claims for contribution or indemnification (in district court) and for alleged breach of implied warranties (in the CFC); and (2) a Bowen claim and a claim in tort (in district court) and a takings claim (in the CFC). See Keene, 508 U.S. at 203–05; see also Tohono O’odham III, 131 S. Ct. at 1737 (Sotomayor, J., concurring). Casman involved claims for restoration of position (injunction) and for back pay. See Casman, 135 Ct. Cl. at 648. At the time of Casman, the Court of Claims did not yet have ancillary injunctive power. See Remand Act of Aug. 29, 1972, § 1, 86 Stat. 652 (codified at 28 U.S.C. § 1491(a)(2) (1982)).

[78]. 27 F.3d 1545 (Fed. Cir. 1994).

[79]. See id. at 1546–47.

[80]. Id. at 1554 n.23. To illustrate, a plaintiff’s APA challenge to enjoin an agency action that diminished his or her land value and inverse condemnation claim for money damages equal to the diminishment in value both would rely on the theory that the agency action caused the diminishment in value.

[81]. 135 Ct. Cl. 647; see supra note 64.

[82]. Loveladies Harbor, 27 F.3d at 1551 (citing Casman, 135 Ct. Cl. 647; British Am. Tobacco Co. v. United States, 89 Ct. Cl. 438 (1939)). As discussed infra in Parts III and IV, the “distinctly different” test may have reflected one effort by the Loveladies Harbor majority to relax the CFC’s statute of limitations for “necessarily sequential” claims without opening the floodgates to duplicative Bowen claims.

[83]. Tohono O’odham III, 131 S. Ct. 1723, 1730 (2011); see supra Part II.A.3.

[84]. 27 F.3d at 1555 (discussing Pa. R.R. Co. v. United States, 363 U.S. 202, 205–06 (1960)); see supra note 15.

[85]. 823 F.2d 510 (Fed. Cir. 1987).

[86]. Id. While Tohono O’odham III implicitly overrules the Loveladies Harbor “distinctly different” test by overruling Casman, the “substantial legal right” test retains vitality. It provides an alternative means for preserving “necessarily sequential” claims through stay and abeyance. See infra Part IV.A.2.

[87]. Senator Heflin was a Democrat from Alabama.

[88]. S. 2521, 102d Cong. (as introduced by Sen. Howell T. Heflin, Apr. 2, 1992).

[89]. 962 F.2d 1013 (Fed. Cir. 1992) (en banc) (9–1 decision) (overruling Bos. Five Cents Sav. Bank, FSB v. United States, 864 F.2d 137 (Fed. Cir. 1988); Hossein v. United States, 218 Ct. Cl. 727 (1978); Brown v. United States, 358 F.2d 1002 (1966); Tecon Eng’rs, Inc. v. United States, 343 F.2d 943 (Ct. Cl. 1965)), aff’d in part sub nom. Keene Corp. v. United States, 508 U.S. 200 (1992) (overruling only Hossein, 218 Ct. Cl. 727; Brown, 358 F.2d 1002). The Federal Circuit issued UNR Industries on April 23, 1992.

[90]. As previously discussed, the Federal Courts Administration Act of 1992 renamed the “United States Claims Court” the “United States Court of Federal Claims.” See supra note 34.

[91]. See Newport News Shipbuilding & Dry Dock Co. v. Garrett, 6 F.3d 1547, 1569–70 (Fed. Cir. 1993) (Bennett, J., dissenting). The Federal Courts Study Committee Implementation Act of 1992 incorporated provisions of the Claims Court Technical and Procedural Improvements Act of 1991, which the U.S. Claims Court had submitted to Congress as proposed legislation. Id. at 1569. As originally submitted to Congress, § 12 of the proposed legislation also would have repealed 28 U.S.C. § 1500. Judicial Conf. of the U.S., Report of the Proceedings, Mar. 16, 1992, at 22, available at http://www.uscourts.gov/uscourts/FederalCourts/judconf/ proceedings/1992-03.pdf. The on-again, off-again inclusion of the § 1500 repeal may have reflected resistance from the Judicial Conference of the United States (Judicial Conference) to other expansions of the Article I Claims Court’s jurisdiction. See id. at 22–23. Besides repealing 28 U.S.C. § 1500, the Claims Court had proposed an extension of its declaratory judgment power and a grant of jurisdiction to hear ancillary Federal Tort Claims Act claims. Id. at 22. The Judicial Conference is “[t]he policy-making body of the federal judiciary, responsible for surveying the business of the federal courts, making recommendations to Congress on matters affecting the judiciary, and supervising the work of the Administrative Office of the United States Courts.” Black’s Law Dictionary 923 (9th ed. 2009); see also 28 U.S.C. § 331 (2006).

[92]. See Court of Federal Claims Technical and Procedural Improvements Act: Hearing Before the Subcomm. on Courts and Admin. Practice of the S. Comm. on the Judiciary, 102d Cong. 2–15 (1992) [hereinafter Senate Hearing] (statement of C.J. Loren A. Smith).

[93]. Id. at 10–11 (statement of C.J. Loren A. Smith) (emphasis added).

[94]. See id. at 16–33 (statement of Stuart E. Schiffer, Deputy Assistant Att’y Gen. of the U.S.).

[95]. Id. at 18 (statement of Stuart E. Schiffer, Deputy Assistant Att’y Gen. of the U.S.).

[96]. Id. (statement of Stuart E. Schiffer, Deputy Assistant Att’y Gen. of the U.S.) (quoting UNR Indus., Inc. v. United States, 962 F.2d 1013, 1021 (Fed. Cir. 1992)).

[97]. Id. (statement of Stuart E. Schiffer, Deputy Assistant Att’y Gen. of the U.S.).

[98]. Keene Corp. v. United States, 508 U.S. 200 (1993). While Tohono O’odham III moves the jurisprudence back towards UNR Industries, the implications of § 1500’s interaction with Bowen were not yet apparent in 1992. The case for legislative reform remains strong despite Tohono O’odham III. See infra Part IV.

[99]. 27 F.3d 1545 (Fed. Cir. 1994).

[100]. See supra Part II.B.3.

[101]. 28 U.S.C. § 2501 (2006).

[102]. See, e.g., H.R. Rep. No. 105-424, at 5 (1998) (“[I]f a property owner wishes to both challenge the appropriateness of a taking of property and pursue monetary damages arising from the taking, the owner must choose to pursue one claim before the other—both claims may not be pursued at the same time.”).

[103]. See supra note 19.

[104]. Utah Senator Orrin G. Hatch, a Republican who chaired the Senate Committee on the Judiciary throughout the second half of the 1990s, played a leading role in five of the six repeal efforts: the (1) Tucker Act Shuffle Relief Act of 1997, H.R. 992, 105th Cong. § 3(a) (1998) (as passed by House of Representatives and referred to S. Comm. on the Judiciary, Mar. 12, 1998); H.R. 992, 105th Cong. § 2(c)(2)(A) (as introduced by Rep. Lamar S. Smith, Mar. 6, 1997); (2) Citizens Access to Justice Act of 1998, compare H.R. 1534, 105th Cong. § 6(a)(2)(A) (as amended by Sen. Orrin G. Hatch, Feb. 26, 1998) (providing for repeal of 28 U.S.C. § 1500), with Private Property Rights Implementation Act of 1997, H.R. 1534, 105th Cong. (as passed by House of Representatives, Oct. 22, 1997, and referred to S. Comm. on the Judiciary, Nov. 13, 1997) (not providing for repeal of § 1500); (3) Omnibus Property Rights Act of 1997, S. 781, 105th Cong. § 205(d)(2)(A) (as introduced by Sen. Orrin G. Hatch, May 22, 1997); (4) Citizens Access to Justice Act of 1997, S. 1256, 105th Cong. § 8(a)(2)(A) (as introduced by Sen. Orrin G. Hatch, Oct. 6, 1997); (5) Property Rights Implementation Act of 1998, S. 2271, 105th Cong. § 6(a)(2)(A) (as introduced on behalf of Sen. Orrin G. Hatch, July 7, 1998); and (6) Citizens Access to Justice Act of 1999, S. 1028, 106th Cong. § 6(a)(2)(A) (as introduced by Sen. Orrin G. Hatch, May 13, 1999).

[105]. See, e.g., Tucker Act Shuffle Relief Act of 1997, H.R. 992, 105th Cong. (as passed by House of Representatives, Mar. 12, 1998) (passing with 184 Republican votes and 46 Democratic votes, while garnering opposition from 36 Republicans, 143 Democrats, and Independent Bernard Sanders of Vermont).

[106]. S. 1028, § 6(a)(2)(A).

[107]. 487 U.S. 879 (1988); see supra note 13.

[108]. 27 F.3d 1545, 1555 (Fed. Cir. 1994); see supra notes 84–86 and accompanying text.

[109]. 962 F.2d 1013 (Fed. Cir. 1992), aff’d in part sub nom. Keene Corp. v. United States, 508 U.S. 200 (1993).

[110]. 135 Ct. Cl. 647 (1956).

[111]. UNR Indus., 962 F.2d at 1025 (“[A]s of today, Casman and its progeny are no longer valid.”).

[112]. 508 U.S. at 216.

[113]. See id. (“In applying § 1500 to the facts of this case, we find it unnecessary to consider, much less repudiate, the ‘judicially created exceptions’ to § 1500 found in Tecon Engineers, Casman, and Boston Five.”). Boston Five Cents Savings Bank, FSB v. United States, 864 F.2d 137 (Fed. Cir. 1988), was an application of Casman and Hossein. See UNR Indus., 962 F.2d at 1020–21.

[114]. See Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1551 (Fed. Cir. 1994) (“The description of the Casman rule as an ‘exception’ to § 1500 is inapt . . . . Casman and its progeny reflect a carefully considered interpretation of the statutory term ‘claims,’ a term undefined in the statute and subject to conflicting views as to its meaning.”).

[115]. 131 S. Ct. 1723 (2011).

[116]. Justice Kennedy’s majority opinion implicitly repudiated Casman and, thereby, the “distinctly different” test from Loveladies Harbor that relied on it; however, only Justice Sotomayor’s concurrence expressly characterized Casman as overruled. Compare id. at 1730 (“An interpretation of § 1500 focused on the facts rather than the relief a party seeks preserves the provision as it was meant to function.” (citing Casman v. United States, 135 Ct. Cl. 647 (1956), counterfactually)), with id. at 1734 (Sotomayor, J., concurring) (“The consequence of today’s decision is clear: The Casman rule is no longer good law.”). Neither opinion repudiated Loveladies Harbor. Indeed, Justice Kennedy did not even cite directly to the case. The “substantial legal right” language from Loveladies Harbor remains good law.

[117]. A plaintiff who prefers to challenge agency action rather than merely recover compensation for the diminishment in property value that agency action causes must pursue an APA claim in district court first. Once compensated in the CFC, the plaintiff has sold the taken property (the diminishment in property value) and no longer would have grounds to enjoin the agency action. However, by the time a plaintiff has exhausted all appeals on the APA claim, the CFC’s statute of limitations might have run. See supra Part III.B. This peculiar dilemma that regulatory takings plaintiffs face might explain the shift from the 9–1 UNR Industries majority (a Bowen claim) to the 8–3 Loveladies Harbor majority (a regulatory takings claim) in little more than two years.

[118]. Note that a “necessary sequential” test to identify and preserve only those sequential claims necessary to preserve a “substantial legal right” would not implicate Brown v. United States, 358 F.2d 1002 (1966), or Hossein v. United States, 218 Ct. Cl. 727 (1978), which the Supreme Court expressly overruled in Keene. See 508 U.S. 200, 217 n.12 (1993). Brown and Hossein preserved duplicative claims before the CFC, which earlier had failed in district court due to lack of subject matter jurisdiction. Id. at 216–17. Unlike the Brown/Hossein rule, which incentivized duplicative litigation by saving litigants who mistakenly filed the same claim in the wrong court, a “necessarily sequential” rule merely would incentivize litigants to exhaust their APA injunctive remedies before pursuing distinct takings claims in the CFC.

[119]. Petition for Writ of Certiorari, Tohono O’odham Nation III, 131 S. Ct. 1723 (2011) (No. 09-846), 2010 WL 169506, at *21.

[120]. Tohono O’odham II, 559 F.3d 1284, 1290 (Fed. Cir. 2009), rev’d, 131 S. Ct. 1723.

[121]. See infra Part IV.C.

[122]. Similarly, it is not clear that the average Bowen claimant before the CFC gains much advantage by also pursuing specific relief in district court. While Congress should amend § 1500 to extend stay and abeyance to duplicative Bowen claims, it is important to note that many Bowen claimants miscalculated by filing in district court in the first place. Having already exhibited a lack of strategic litigation foresight, it is probable that the average Bowen double-filer also would have failed to distinguish properly between “old money” and “new money” in his or her pleadings.

[123]. See Petition for Writ of Certiorari, supra note 119, at *25.

[124]. Id. at *22–23; see Keene Corp. v. United States, 508 U.S. 200, 207, 217–18 (1993) (applying § 1500 to affirm the dismissal of Keene Corp.’s suit before the CFC).

[125]. See Keene, 508 U.S. at 203–05. In other words, Keene involved a suit in district court for equitable relief and a suit in the CFC for legal relief.

[126]. However, as previously discussed, federal law provides for the tolling of the statute of limitations for many claims by Indian tribes against the government. See supra note 39.

[127]. A congressional-reference case is “[a] request by Congress for the United States Court of [Federal] Claims to give an advisory opinion on the merits of a nonpension claim against the United States.” Black’s Law Dictionary (9th ed. 2009); see also 28 U.S.C. §§ 1492, 2509 (2006).

[128]. See infra Part IV.B.

[129]. 363 U.S. 202 (1960).

[130]. 823 F.2d 510 (Fed. Cir. 1987).

[131]. Vaizburd v. United States, 46 Fed. Cl. 309, 310 (2000). Indeed, § 1500 only traps unwary Bowen claimants. A wary claimant merely would file in the CFC first to avoid § 1500’s interposition. See infra Part IV.C (discussing the pending prong’s order-of-filing rule). In contrast, a regulatory takings plaintiff must pursue an APA claim first if he or she intends to pursue an APA claim at all.

[132]. Bowen v. Massachusetts, 487 U.S. 879, 930 (Scalia, J., dissenting).

[133]. See Keene Corp. v. United States, 508 U.S. 200, 219–20 (1993) (Stevens, J., dissenting) (suggesting that, when a case is pending in another court, the CFC “may retain the case on its docket pending disposition of the other action”); see also supra Part II.B.2.

[134]. See supra note 91.

[135]. See supra Part III.B. As previously discussed, regulatory takings claims already are suitable for stay and abeyance under the surviving “substantial legal right” language from Loveladies Harbor. See supra note 116.

[136]. 79 Fed. Cl. 645 (2007), rev’d, 559 F.3d 1284 (Fed. Cir. 2009).

[137]. Id. at 659 n.16 (“[I]f the filing dates of the complaints had been reversed, [S]ection 1500 would not be a problem and the two courts would use traditional principles of comity, collateral estoppel, and res judicata to sort out any duplication.”).

[138]. Senate Hearing, supra note 92, at 11.

[139]. Upon outright repeal, the courts might adopt stay and abeyance over time, in line with modern docket management conceptions. However, the lack of a formal statutory scheme or legal test like “necessarily sequential” to identify and manage preclusion issues might elicit Judicial Conference opposition or spur avoidable litigation, for example, motions to dismiss Bowen claims that likely would be stayed.

[140]. Judicial Conf. of the U.S., Report of the Proceedings, Sept. 19, 1995, at 83, available at http://www.uscourts.gov/uscourts/FederalCourts/judconf/proceedings/1995-09.pdf. The Judicial Conference’s 1992 and 1995 comments constitute the only references to § 1500 in the entirety of the Reports of the Proceedings of the Judicial Conference between March 1990 and March 2011.

[141]. The Administrative Conference of the United States is an “independent federal agency that provide[s] a forum where agency heads, private attorneys, university professors, and others stud[y] ways to improve the procedures that agencies use in administering federal programs.” Black’s Law Dictionary (9th ed. 2009). It had been abolished in 1995. Id. However, it was reestablished in 2010. See Admin. Conf. of the U.S., Revived Administrative Conference Publishes First Recommendation in Fifteen Years, Jan. 4, 2011, http://www.acus.gov/revived-administrative-conference-publishes-first-recommendation-in-fifteen-years.

[142]. Admin. Conf. of the U.S., A Procedural Trap: 28 U.S.C. § 1500, http://www.acus.gov/ research/the-conference-current-projects/weeding-out-purposeless-procedural-traps/section1500 (last visited July 9, 2011).

[143]. See Pro Se Information, U.S. Court of Fed. Claims, http://www.uscfc.uscourts.gov/pro-se-information (last visited July 9, 2011) (discussing § 1500 within a subsection headed, “Some of the Statutes that may be helpful in learning if your claim belongs in this court”).

[144]. See Keene Corp. v. United States, 508 U.S. 200, 217 (1993) (“[T]he ‘proper theatre’ for such arguments . . . ‘is the halls of Congress.’” (quoting In re Smoot, 82 U.S. (15 Wall.) 36, 45 (1873))); see also Tohono O’odham III, 131 S. Ct. 1723, 1731 (2011) (“If indeed the statute leads to incomplete relief, and if plaintiffs like the Nation are unsatisfied, they are free to direct their complaints to Congress.”).

[145]. See Hardwick Bros. Co. II v. United States, 72 F.3d 883 (Fed. Cir. 1995), aff’g Tecon Eng’rs, Inc. v. United States, 343 F.2d 943, 949 (Ct. Cl. 1965) (“[T]he only reasonable interpretation of the statute is that it serves to deprive this court of jurisdiction . . . only when the suit shall have been commenced in the other court before the claim was filed in this court.” (emphasis added)). The jurisprudence takes another twist in the event that a district court transfers part of a single-filed claim to the CFC under 28 U.S.C. § 1631. In that scenario, the CFC then would have to dismiss the partial claim for lack of jurisdiction due to § 1500. Harbuck v. United States, 378 F.3d 1324, 1328 (2004), aff’g United States v. Cnty. of Cook, 170 F.3d 1084, 1091 (1999); see also Griffin v. United States, 85 Fed. Cl. 179, 184–86 (2008) (applying Harbuck, 378 F.3d 1324; Cnty. of Cook, 170 F.3d 1084).

[146]. See Griffin, 85 Fed. Cl. at 193. A plaintiff often would be foolish not to double-file (in the proper order) because there is little cost in doing so under Hardwick Bros. II/Tecon Engineers but potentially great cost in not doing so under Harbuck/County of Cook. As CFC Judge Francis M. Allegra observed in Griffin, the rules of County of Cook and Tecon Engineers arguably are mutually inconsistent. See id. at 184 (“Under Tecon, the simultaneous filing of claims in the district court and [the CFC] seemingly would not trigger section 1500 as the former would not be ‘before’ the latter. The Federal Circuit, however, . . . reached the opposite conclusion . . . in County of Cook . . . .”).

[147]. Id. at 192 (quoting UNR Indus., Inc. v. United States, 962 F.2d 1013, 1019 (Fed. Cir. 1992)).

[148]. 962 F.2d at 1023 (“Tecon is overruled.”).

[149]. 508 U.S. at 216.

[150]. 135 Ct. Cl. 647 (1956). See supra notes 64, 116.

[151]. Hardwick Bros. Co. II v. United States, 72 F.3d 883, 886 (Fed. Cir. 1995) (“Tecon Engineers remains good law and binding on this court.”).

[152]. 559 F.3d 1284 (Fed. Cir. 2009), rev’d, 131 S. Ct. 1723 (2011).

[153]. Id. at 1291 (emphasis omitted).

[154]. Id. at 1292 (quoting Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549 (Fed. Cir. 1994)).

[155]. See 131 S. Ct. at 1729 (“The panel . . . could not identify any ‘purpose that § 1500 serves today,’ in large part because it was bound by . . . precedent that left the statute without meaningful force.” (citation omitted)); see also id. at 1730 (“Courts should not render statutes nugatory through construction.”). Nevertheless, the Court again deferred the order-of-filing issue to a future case. Id. at 1729–30 (“The Tecon holding is not presented in this case because the CFC action here was filed after the District Court suit.”); see also id. at 1735 n.5 (Sotomayor, J., concurring) (“The validity of the . . . holding in Tecon Engineers is not presented in this case.” (citation omitted)).

[156]. See supra note 19.

[157]. 131 S. Ct. 1723.

[158]. 487 U.S. 879 (1988).

[159]. Loveladies Harbor, 27 F.3d 1545.

Amid the throes of the Civil War, the U.S. Congress passed the Captured and Abandoned Property Act of 1863, authorizing the federal government to confiscate private property in the seceding states in order to sell it to fund the Department of the Treasury.^[1] Owners of the confiscated property, which was mostly cotton, could claim restitution if they had not aided the rebellion.^[2]

Clever “cotton claimants,” as they became known, pursued two simul­taneous avenues to recovery: (1) suit in the Court of Claims against the United States; and (2) suit in state court against Treasury officials in perso­nam.^[3] The Civil War–era conception of claim preclusion was much more forma­listic than it is today.^[4] At the time, the doctrine only applied if the caption names of the defendants were identical.^[5] Thus, a claim against Secretary of the Treasury “Salmon Chase” would not have precluded the same claim against the “United States.” Congress responded to the scourge of double-filing cotton claimants by passing what is now 28 U.S.C. § 1500, “Pendency of claims in other courts,” by which it intended to impose a mutually exclusive election between the Court of Claims and other courts.^[6]

The U.S. Supreme Court recently issued United States v. Tohono O’odham Nation (Tohono O’odham III),^[7] which offered the Court its first meaningful opportunity to interpret 28 U.S.C. § 1500 in more than a decade.^[8] Tohono O’odham is important because the question of how to delineate between duplicative Bowen v. Massachusetts^[9] claimants (Bowen claimants) and ordinary regulatory takings plaintiffs who must double-file has embroiled the U.S. Court of Federal Claims (CFC) and the U.S. Court of Appeals for the Federal Circuit. Bowen allows for a plaintiff to recover specific (equitable) relief against the government that happens to be monetary, namely through an action in district court under the Administrative Procedure Act (APA).^[10] A Bowen clai­mant also can pursue money damages (legal relief) through an action in the CFC under the Tucker Act.^[11] This possibility has led to a marked increase in dual-forum litigation,^[12] raising complex § 1500 issues. Unless the Supreme Court overrules Bowen in a future case, the CFC must develop a framework to manage the frequent questions of duplicative litigation that will continue to arise so long as Bowen remains good law.^[13] This framework would dis­tin­guish between discretionary Bowen claimants and regulatory takings plaintiffs, who first must file their “necessarily sequential”^[14] claims in district court (challenging adverse agency action) to preserve a “substantial legal right.”^[15]

This Article argues first, that the CFC could and should allow for the stay and abeyance of regulatory takings claims, shielding them from both § 1500 and the CFC’s six-year statute of limitations.^[16] Second, much as Justice John Paul Stevens envisioned in his dissent in Keene Corp. v. United States,^[17] Congress should amend § 1500 to extend stay and abeyance to duplicative Bowen claims pending their disposition in the other courts. Modern preclusion doctrine would apply to the stayed claims. Finally, Congress, or the Supreme Court upon hearing a suitable case, should clarify the proper interpretation of “pending” for purposes of § 1500. The statute should apply in the same manner regardless of the order in which a claimant files in the CFC and the other court.

Part I of this Article examines § 1500’s purpose, while Part II assesses the impact of the Court’s recent Tohono O’odham decision and chronicles the sta­tute’s claim jurisprudence. Next, Part III explores past unsuccessful attempts to repeal the statute, which largely aimed to address the dilemma that § 1500 creates for regulatory takings plaintiffs, a “jurisdictional dance”^[18] known as the “Tucker Act Shuffle.”^[19] Finally, Part IV outlines the steps necessary for reform and concludes that the time finally is right to implement them.

I. The Purpose of Section 1500

A. The 1868 Enactment

In 1868, Vermont Senator George F. Edmunds proposed a bill to curtail duplicative cotton claimants,^[20] explaining:

The object of this [bill] is to put to their election that large class of persons having cotton claims particularly, who have sued the Secretary of the Treasury and the other agents of the Government in more than a hundred suits that are now pending, scattered over the country here and there, and who are here at the same time endeavoring to prosecute their claims, and have filed them in the Court of Claims, so that after they put the Government to the expense of beating them once in a court of law they can turn around and try the whole question in the Court of Claims. The object is to put that class of persons to their election either to leave the Court of Claims or to leave the other courts. I am sure everybody will agree to that.^[21]

Congress passed what is now 28 U.S.C. § 1500 later that year, directing:

That no person shall file or prosecute any claim or suit in the [C]ourt of [C]laims, or an appeal therefrom, for or in respect to which he or any assignee of his shall have commenced and has pending any suit or process in any court against any officer or person who, at the time of the cause of action alleged in such suit or process arose, was in respect thereto acting or professing to act, mediately or immediately, under the authority of the United States.^[22]

First and foremost, the purpose of the 1868 Act was to induce cotton clai­mants “either to leave the Court of Claims or to leave the other courts.”^[23] Congress was concerned with duplicative litigation but accepted that a plaintiff could have prosecuted a singular action in either the Court of Claims or the other courts at his or her election. Senator Edmunds’s “try the whole question [again]”^[24] language suggests that the plaintiff’s election of one venue would have been mutually exclusive of the other. By allowing plaintiffs only a mutually exclusive election, Congress acted to minimize jurisdictional conflict. Thus, the purpose of the 1868 Act was to force upon cotton claimants a mutually exclu­sive election between the Court of Claims and the other courts, so as to minimize jurisdictional conflict and to preclude duplicative claims.^[25]

B. The 1874 Modernization

In 1874, Congress embarked upon a broad statutory modernization effort, which included minimal updates to the text of the 1868 Act.^[26] Representative Benjamin Franklin Butler of Massachusetts, who led that effort, explained:^[27]

We have not attempted to change the law, in a single word or letter, so as to make a different reading or different sense. All that has been done is to strike out the obsolete parts and to condense and consolidate and bring together statutes in pari materia; so that you have here, except insofar as it is human to err, the laws of the United States under which we now live.^[28]

The purpose of what is now 28 U.S.C. § 1500 remained unaltered by the 1874 modernization: to force upon plaintiffs a mutually exclusive election between the Court of Claims and the other courts so as to minimize jurisdic­tional conflict and to preclude duplicative claims. In 1911, Congress codified the 1874 text without amendment,^[29] and the statute remained unchanged for another thirty-seven years.

C. The 1948 Codification

In 1948, Congress created 28 U.S.C. § 1500, deriving its text from a revision of § 154 of the Judicial Code of 1911:

The Court of Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.^[30]

Notably, Congress added the language “against the United States” to supersede a Supreme Court statutory interpretation, which had undermined the statute’s claim preclusion function.^[31] Congress also replaced the 1911 text’s specific “file or prosecute” language with a general reference to “jurisdiction.”^[32] However, according to the Court, that replacement did not indicate anything “more than a change ‘in phraseology.’”^[33] Other than making insubstantial revisions to account for the CFC’s two changes in name,^[34] Congress has not modified the text of § 1500 since 1948.

II. Section 1500 “Claim” Jurisprudence and the Implications
of United States v. Tohono O’odham Nation

Under current Supreme Court and Federal Circuit precedent, the CFC lacks jurisdiction under 28 U.S.C. § 1500 if the claim before the CFC arose from substantially the same operative facts as any earlier-filed claim pending in another court,^[35] regardless of relief sought. In other words, the statute applies if substantially the same claim (the claim prong) already is pending in another court (the pending prong). Tohono O’odham implicated the claim prong. However, as discussed in Part IV, complete § 1500 reform will require addressing the pending prong as well.

A. The Recent Tohono O’odham Controversy

The Tohono O’odham Nation is an Indian tribe (Tribe).^[36] In 1976, the United States paid the Tribe $26 million to settle a claim for takings and trespass.^[37] The government now holds that money in trust, in addition to income derived from the Tribe’s approximately three million acres of land.^[38]

On December 28, 2006, the Tribe brought suit against various federal offi­cials in district court, alleging a breach of fiduciary duty in the management of its trust assets.^[39] The Tribe primarily requested a decree for the government to provide an accounting of its trust assets and a restatement of its trust fund account balances in accordance with that accounting.^[40] The next day, on December 29, 2006, the Tribe brought suit against the “United States” in the CFC. Before the CFC, the Tribe primarily requested a determina­tion that the gov­ernment was liable to it for injuries and losses resulting from the gov­ernment’s alleged breach of fiduciary duty, as well as damages due to the Tribe.^[41] The government interposed § 1500 and moved to dismiss the claim before the CFC.^[42] At issue in Tohono O’odham was whether “a common fac­tual basis like the one apparent in the [Tribe’s] suits suffices to bar jurisdiction under § 1500.”^[43]

1. The Government’s Motion to Dismiss Before the CFC

Granting the government’s motion, CFC Judge Eric G. Bruggink interpreted the statute to apply where “there is meaningful overlap both in the underlying facts and in the relief sought.”^[44] Here, he found the underlying facts to be the same.^[45] His analysis in Tohono O’odham I therefore hinged on the relief sought.

To determine whether there was “meaningful overlap” in the relief sought, Judge Bruggink weighed two competing considerations.^[46] On the one hand, the Tribe prayed for an accounting^[47] and for money^[48] in both courts. On the other hand, the Tribe explicitly framed its requests before the district court as being for declaratory and other equitable relief, and its requests before the CFC as being for money damages (legal relief).^[49] Despite that distinction, Judge Bruggink found that there was “virtually 100 percent overlap” between the respective sets of requests.^[50] He added, “A perfect symmetry of demands for relief is not necessary [to implicate § 1500].”^[51]

2. The Tribe’s Appeal to the Federal Circuit

On appeal in Tohono O’odham II, a Federal Circuit panel reversed the CFC’s holding.^[52] The panel reasoned that the Tribe had requested an accounting only from the district court;^[53] whereas, from the CFC, the Tribe had requested solely damages.^[54] The panel stated, “it is the relief that the plaintiff requests that is relevant under § 1500,”^[55] and observed that the Tribe’s “prayer for relief in the Court of Federal Claims [did] not request an accounting.”^[56] It further noted that the presumed need for an accounting to determine the proper amount of damages “[did] not transform the Nation’s unambiguous request for damages into a request for an accounting.”^[57]

The panel similarly analyzed the Tribe’s dual prayers for money. It reasoned that the Tribe’s request for “a decree providing for the restatement of the Nation’s trust fund account balances” was for “old money,”^[58] that is, money already belonging to the Tribe, which erroneously was unaccounted for in the Tribe’s trust fund balances. In contrast, the panel reasoned that the Tribe’s request “[f]or a determination that the Defendant is liable to the Nation in damages for the injuries and losses caused as a result of Defendant’s breaches of fiduciary duty” was for “new money,”^[59] that is, money the Tribe would have earned, but for the alleged fiduciary mismanagement. The panel therefore concluded that there was no overlap in the relief the Tribe requested.^[60]

3. The Government’s Successful Appeal to the Supreme Court

Recently, in Tohono O’odham III, the Supreme Court reversed the Federal Circuit’s ruling.^[61] Writing for the majority, Justice Anthony M. Kennedy observed that the purpose of § 1500 is “to save the Government from burdens of redundant litigation,”^[62] including “[d]eveloping a factual record.”^[63] Effectively overruling Casman v. United States,^[64] the majority rejected a reading of the statute focused on the relief sought, which would transform § 1500 into “a mere pleading rule, to be circumvented by carving up a single transaction into overlapping pieces seeking different relief.”^[65] The majority held: “Two suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit.”^[66]

B. Preceding Claim Prong Jurisprudence

1. Keene Corp. v. United States

The Supreme Court’s last significant § 1500 ruling, Keene Corp. v. United States in 1993,^[67] also had concerned the statute’s claim prong. In Keene, the Court synthesized three holdings from the 1920s and 1930s. It ruled that the sta­tute deprives the CFC of jurisdiction when a plaintiff has a claim pending in another court predicated on “substantially the same operative facts,” irres­pective of the legal theory on which the claim was based.^[68] The Court reasoned that Congress was aware of settled judicial interpretations of § 154 of the 1911 text and therefore adopted those interpretations when it codified § 1500 in 1948.^[69]

2. Justice Stevens’s Keene Dissent

Justice Stevens dissented from the eight-to-one Keene majority.^[70] Focusing on the pending prong instead of the claim prong, he reasoned that it should not be necessary for the CFC to dismiss an action just because a plaintiff already has filed another action on the same claim before another court.^[71] Under Justice Stevens’s interpretation, the CFC would retain the case on its docket until the disposition of the action in the other court.^[72] The action before the CFC automatically would reinstate upon dismissal of the other action.^[73] In Tohono O’odham III, both Justice Sonia Sotomayor^[74] and Justice Ruth Bader Ginsburg^[75] agreed with Justice Stevens, in expressing their belief that stay and abeyance is possible without additional legislation.^[76]

3. Loveladies Harbor, Inc. v. United States

Keene left unresolved whether two actions based on the same operative facts but requesting different relief would implicate § 1500’s jurisdictional bar by constituting the same claim.^[77] The Federal Circuit addressed that question en banc in Loveladies Harbor, Inc. v. United States,^[78] one year after Keene. Loveladies Harbor involved an APA claim challenging a permit denial and a Fifth Amendment regulatory takings claim seeking compensation for the denial.^[79] The Federal Circuit asserted that overlap in legal theory does not necessarily mean overlap in relief.^[80] Reviving Casman,^[81] it held that § 1500 does not deprive the CFC of jurisdiction when a plaintiff has an action pending in another court based on the same operative facts but is seeking “distinctly dif­ferent” relief.^[82] By overruling Casman, the Tohono O’odham III majority effec­tively overruled the “distinctly different” test from Loveladies Harbor as well.^[83]

Additionally, the Loveladies Harbor court provided that § 1500 should not place claimants “in the position of having to give up a substantial legal right protected by the Takings Clause of the Constitution.”^[84] The court proceeded to cite approvingly to Aulston v. United States,^[85] in which the Federal Circuit directed the Claims Court to stay a takings claim pending an APA challenge to an adverse title determination in district court.^[86]

III. Past Unsuccessful Attempts to Repeal Section 1500

A. The 1992 Attempt at Repeal

In 1992, Senator Howell T. Heflin^[87] introduced the Court of Federal Claims Technical and Procedural Improvement Act,^[88] which sought to repeal 28 U.S.C. § 1500. Senator Heflin introduced his bill several weeks before the Federal Circuit was to address § 1500 en banc in UNR Industries, Inc. v. United States.^[89] He offered it as an amendment to the Federal Courts Administration Act of 1992,^[90] which ultimately became law in October 1992 without the amendment.^[91]

An April 1992 hearing held less than a week after the UNR Industries ruling sheds light on the ultimate failure of Senator Heflin’s bill. Loren A. Smith, then–Chief Judge of the Claims Court, presented a statement in favor of the bill:^[92]

Although, on its face, § 1500 may appear to prevent wasteful duplic­ative litigation, in practice it has had precisely the opposite effect. Elimina­tion of this jurisdictional bar to suits related to cases in other courts will save much wasteful litigation over non-merits issues and will leave the court free to deal with potential duplication through discre­tionary means. The Court can stay duplicative litigation, if the matter is being addressed in another forum, or proceed with the case, if the matter appears to be stalled in the other forum.^[93]

Stuart E. Schiffer, then–Deputy Assistant Attorney General, presented the prevailing counterargument.^[94] Mr. Schiffer asserted that “Section 1500 is a very straightforward provision which simply provides that the Claims Court shall not have jurisdiction over any claim where the same claim is pending in another court.”^[95] He proceeded to quote from that week’s UNR Industries deci­sion, which found the rationale behind “requiring a party to carefully assess his claims before filing and choose the forum best suited to the merits of the claim”^[96] to be “even more salutary in this day of excessive litigation” than at the time § 1500 was adopted.^[97] Thus, the 1992 attempt to repeal § 1500 stalled in the face of the Federal Circuit’s sweeping reinterpretation of the statute in UNR Industries. The Supreme Court only later limited that reinterpretation in Keene.^[98]

B. Subsequent Attempts at Repeal

By the mid-1990s, repeal of § 1500 had become a partisan issue. Increa­singly, the political parties disagreed over the appropriate ease of regulatory takings claims against the government.

As Loveladies Harbor^[99] illustrates, a potential regulatory takings plaintiff faces a dilemma.^[100] If the plaintiff prefers to challenge an adverse agency action rather than merely recover compensation for any taking that action effectuates, he or she would file first in district court under the APA. However, by the time the plaintiff exhausts all appeals challenging the agency, it is possible the CFC’s six-year statute of limitations^[101] would have run, barring suit in that court. Once the plaintiff proceeds in the CFC, he or she might recover compensation for a taking but could not further challenge the agency action. This dilemma attracted congressional attention^[102] and the moniker, the “Tucker Act Shuffle.”^[103]

Besides Senator Heflin’s bill, Congress considered six other bills to repeal § 1500 throughout the 1990s.^[104] In each bill, support for or opposition to repeal fell largely along party lines, with Republicans generally in support and Democrats generally in opposition.^[105] No member of Congress has introduced a bill to repeal or amend § 1500 since May 1999.^[106]

IV. The Necessary Steps to Reform Section 1500

This Part details the necessary steps to reform 28 U.S.C. § 1500 and argues that the time is finally right to implement them. As a practical matter, it remains uncertain whether the present Supreme Court would overrule Bowen v. Massachusetts.^[107] Nevertheless, the proceeding three-step reform, which would distinguish between discretionary Bowen and “necessarily sequential” regulatory takings plaintiffs, would be an effective alternative to overrule.

First, going forward, the CFC should interpret the “substantial legal right” test from Loveladies Harbor, Inc. v. United States^[108] to allow for the stay and abeyance of “necessarily sequential” regulatory takings claims before the CFC, pending their disposition in district court. This interpretation would remain true to § 1500’s jurisdictional conflict-prevention purpose, yet would be predictable for litigants and administrable for lower courts. Second, Congress should amend the statute to allow for the stay and abeyance of duplicative Bowen claims as well. Modern preclusion doctrine would apply to the stayed claims. Finally, § 1500 should apply in the same manner regardless of the order in which a plaintiff files in the CFC and the other court. Either the Supreme Court should reconsider contrary Federal Circuit pending prong precedent in a future case or Congress should supersede that precedent.

A. Preserving the “Substantial Legal Rights” of Regulatory Takings Claimants in Light of Tohono O’odham

In UNR Industries, Inc. v. United States,^[109] decided in April 1992, the en banc Federal Circuit repudiated Casman v. United States,^[110] which distinguished between claims that requested different relief.^[111] While the Supreme Court ulti­mately ruled that addressing Casman was unnecessary to decide Keene,^[112] the Court did not express either support for or opposition to its overrule.^[113] By May 1994, in Loveladies Harbor, the en banc Federal Circuit had rehabili­tated Casman.^[114]

United States v. Tohono O’odham Nation^[115] raised the question of whether the Loveladies Harbor court was correct to spare duplicative claims from § 1500, on the basis of the relief each claim sought. The Supreme Court correctly overruled the Federal Circuit’s means (sparing “distinctly different” claims) but not its end (sparing duplicative claims where double-filing was required to preserve a “substantial legal right”).^[116] Such claims do not create jurisdictional conflict. To be sure, filing sequential claims is necessary for any private property owner who desires both to challenge adverse agency action and to receive just compensation for his or her loss.^[117] To test whether a duplicative claim preserves a “substantial legal right,” and therefore is appropriate for stay and abeyance, the CFC should employ a “necessarily sequential” standard.^[118]

1. The Supreme Court Was Correct to Reject the Federal Circuit’s “Distinctly Different” Test

In Tohono O’odham III, the Supreme Court was correct to reverse the Federal Circuit’s “technical law-equity distinction.”^[119] The Tohono O’odham II panel’s hairsplitting between “old money” and “new money” provided only minimal protection for the unwary and would have led to inconsistent judicial outcomes.^[120] At the CFC level, it is likely that many of the same plaintiffs who already were unaware of the pending prong’s order-of-filing rule^[121] would have been equally oblivious to the linguistic parsing necessary to avert § 1500’s appli­cation under the panel’s approach.^[122] The “distinctly different” test, as applied in Tohono O’odham II to distinguish between express requests for “old money” and “new money,” would not have saved their claims. Additionally, under the panel’s approach, future Federal Circuit judges engaged in fact-sensitive parsing might have reached inconsistent and unpredictable outcomes when reviewing dismissals from the CFC.^[123]

Moreover, if a law-equity distinction between claims were pertinent to § 1500, the statute would not have applied in Keene.^[124] After all, Keene involved a third-party action in district court for indemnification or contribution, and a damages action in the CFC for breach of implied warranties.^[125]

By comparison, a “necessarily sequential” standard would protect regula­tory takings plaintiffs, who must file sequentially, without sacrificing ease of judicial administration or contradicting the purpose of § 1500. While sympa­thetic Bowen claimants, like the Tribe in Tohono O’odham, would not benefit from this interpretation,^[126] such ineligible double-filers would be better served by pursuing congressional references^[127] or, where justified, professional malpractice suits against their attorneys. Under Tohono O’odham III, Bowen claimants who overlook the order-of-filing loophole will be unable to survive a motion to dismiss in the CFC regardless. Their salvation lies with Congress.^[128]

2. The CFC Should Employ a “Necessarily Sequential” Test Instead

A “necessarily sequential” test would build on the logic of Pennsylvania Railroad Co. v. United States,^[129] Loveladies Harbor, and Aulston v. United States^[130] without opening the floodgates to every Bowen claimant. It gives those claimants who have no choice but to file multiple claims in multiple courts in a specific order the flexibility to do so without fearing an arbitrary statute of limitations bar. At the same time, its application would be relatively predictable and administrable without reading § 1500 out of existence. By providing a workable standard to identify duplicative claims required to preserve a “substan­tial legal right,” a “necessarily sequential” test would eliminate § 1500’s “traps for the unwary”^[131] without accelerating the wasteful “litigation about where to litigate”^[132] that Justice Antonin Scalia predicted in his Bowen dissent.

B. Reform Legislation for Bowen Claimants

1. Congress Should Amend Section 1500 to Extend Stay and Abeyance
to Duplicative Bowen Claims

Congress should extend stay and abeyance to Bowen claimants by amending § 1500 to adopt the procedure that Justice Stevens first outlined in his Keene dissent.^[133] Stay and abeyance (rather than repeal) would allay past concerns about constitutional overreach by the CFC^[134] and about unbounded regulatory takings litigation.^[135] In addition, stay and abeyance would minimize jurisdictional conflict without frustrating the otherwise legitimate claims of vulnerable Bowen claimants. As Judge Bruggink observed in Tohono O’odham I,^[136] modern preclusion doctrine would act as a backstop to foreclose those claims against the government that truly are duplicative.^[137] And, as then–Chief Judge Loren Smith noted in 1992, today’s computerized dockets would allow the Justice Department, the CFC, and the other courts to identify and manage those preclusion issues with relative ease.^[138] Rather than attempt repeal again, Congress instead should amend § 1500 to extend stay and abeyance to Bowen claimants^[139] and to codify it for regulatory takings plaintiffs.

2. The Time Is Finally Right for Reform Legislation

The time is right to amend § 1500. In 1995, the Judicial Conference expressed its willingness not to oppose repeal of the statute if “accompanied by a provision for stay or transfer of duplicative claims.”^[140] More recently, the Administrative Conference of the United States^[141] has labeled § 1500 a “purposeless procedural trap.”^[142] Additionally, the CFC has taken to warning pro se filers of the statute’s existence.^[143] The legal system no longer can tolerate the status quo.

Congressional Democrats should be more receptive to reform as well. In 1992, Bowen was not yet five years old and the implications of the decision’s interaction with § 1500 were not fully understandable. Today, it is apparent that unwary Bowen claimants regularly will double-file. Unlike regulatory takings plaintiffs who want to challenge agency action, these claimants gain little from double-filing and often do so more out of inexperience than strategic design. In practice, the statute acts to trap sympathetic litigants like the Tribe and to provoke complex litigation about where to litigate that might even trump the government’s expense of defending against double-filing claimants.

Although the Keene majority broke with Justice Stevens by an 8–1 margin, the majority’s position was not a rejection of his approach. Rather, the majority recognized that stay and abeyance for non–“necessarily sequential” claimants (like the litigants in Keene) called for legislative revision rather than legal rule.^[144] Congress should take its cue from Justice Stevens’s Keene dissent and amend § 1500 to extend stay and abeyance to Bowen claims.

C. Congress or the Supreme Court Should Eliminate the Pending Prong’s Order-of-Filing Loophole

Congress, or the Supreme Court upon hearing a suitable case, should close the judicially created order-of-filing loophole that allows a claimant to bypass § 1500 merely by filing in the CFC before filing in another court.^[145] This interpretation of the statute’s pending prong is entirely at odds with its intended purpose. The order-of-filing rule destroys the exclusivity of any election between the CFC and the other courts, creating jurisdictional conflict. Perversely, it encourages plaintiffs to double-file in order to preserve access to the CFC.^[146]

As with § 1500 jurisprudence as a whole, pending prong judicial development has been “erratic.”^[147] The Federal Circuit had overruled the order-of-filing rule in UNR Industries,^[148] but the Supreme Court revived it on appeal in Keene.^[149] As with the recently repudiated rule from Casman,^[150] which distin­guished between claims requesting different remedies, the Supreme Court merely found that the facts of Keene did not implicate the order-of-filing rule. The Court did not take a position on the rule’s desirability. In 1995,^[151] the Federal Circuit completed its retreat from UNR Industries by reaffirming the order-of-filing rule.

Pending prong jurisprudence recently reached a crossroads. In Tohono O’odham II,^[152] the Federal Circuit panel cited the order-of-filing rule to justify reading § 1500 nearly out of existence. The panel asserted, “In practice, § 1500 does not actually prevent a plaintiff from filing two actions seeking the same relief for the same claims. It merely requires that the plaintiff file its action in the Court of Federal Claims before it files its district court com­plaint.”^[153] The panel concluded, “Because a party can simply file its Court of Federal Claims action first and avoid § 1500 entirely, it functions as nothing more than a ‘jurisdictional dance.’”^[154]

In Tohono O’odham III, the Supreme Court found that reasoning to be circular.^[155] After all, it is the order-of-filing rule that serves no purpose if it renders § 1500 nothing more than the jurisdictional dance known as the “Tucker Act Shuffle.”^[156] Thus, Congress or the Supreme Court should elimi­nate the pending prong’s order-of-filing rule to conform with § 1500’s intended purpose: to prevent jurisdictional conflict and to preclude duplica­tive claims.

Conclusion

After United States v. Tohono O’odham Nation,^[157] both the text of 28 U.S.C. § 1500 and the jurisprudence interpreting it are in need of reform. The Supreme Court’s Bowen v. Massachusetts^[158] decision has allowed into district court many claimants seeking specific monetary relief from the government. These claimants also can seek money damages in the CFC. At the same time, reg­ulatory takings and other “necessarily sequential” plaintiffs regularly double-file out of necessity. Thorny § 1500 questions have become plentiful in this environment, creating the need for reform.

Going forward, the CFC should allow for the stay and abeyance of those claims that are duplicative simply to preserve a “substantial legal right,”^[159] by testing whether or not the claims are “necessarily sequential.” This interpreta­tion would remain true to § 1500’s jurisdictional conflict-prevention purpose, yet would be predictable for litigants and administrable for lower courts. It would allow for necessary regulatory takings claims in both courts without opening the floodgates to duplicative litigation in contravention of the statute.

Additionally, Congress should amend § 1500 to extend stay and abeyance to duplicative Bowen claims before the CFC pending their disposition in the other courts. Modern preclusion doctrine would apply to the stayed claims. Finally, the Supreme Court should overrule the pending prong’s order-of-filing rule upon a suitable case or Congress should supersede it by statute. The order in which a plaintiff files in the CFC and another court should have no bearing on the applicability of § 1500.

In recent years, various permutations of § 1500 issues have come before the CFC, turning words and phrases like “claim,” “pending,” and “distinctly different” into terms of art. It is time for Congress and the courts to relieve “footloose” litigants from Tucker Act Shuffle fatigue.

[2]. See § 3, 12 Stat. at 820; Peabody et al., supra note 1, at 98–99.

[3]. Peabody et al., supra note 1, at 99 n.13, 100. See generally David Schwartz, Symposium, The United States Court of Claims: Section 1500 of the Judicial Code and Duplicate Suits Against the Government and Its Agents, 55 Geo. L.J. 573, 574–80 (1967) (providing greater detail on the cotton claimants’ maneuverings). Under the second approach, the claimants would evade the bar of sovereign immunity by alleging the common law torts of conversion and trespass against the officials in their personal capacities. See United States v. Lee, 106 U.S. 196 (1882) (upholding this strategy decades later in another Civil War–era dispute). Inevitably, the officials would seek removal to federal court pursuant to an 1833 statute mandating federal jurisdiction over suits against Treasury officials. See, e.g., Dennistoun v. Draper, 7 F. Cas. 488, 488–89 (C.C.S.D.N.Y. 1866) (No. 3804) (applying Act of Mar. 2, 1833, ch. 57, § 3, 4 Stat. 633).

[4]. See Keene Corp. v. United States, 508 U.S. 200, 214 n.8 (1993); Nevada v. United States, 463 U.S. 110, 130–31 (1983).

[5]. See Keene, 508 U.S. at 214 n.8.

[6]. See Cong. Globe, 40th Cong., 2d Sess. 2769 (1868) (“The object is to put . . . to their election either to leave the Court of Claims or to leave the other courts.”).

[7]. 131 S. Ct. 1723 (2011) (Tohono O’odham III), rev’g Tohono O’odham Nation v. United States (Tohono O’odham II), 559 F.3d 1284 (Fed. Cir. 2009).

[8]. See Keene, 508 U.S. 200.

[9]. 487 U.S. 879 (1988).

[10]. Act of June 11, 1946, ch. 324, 60 Stat. 237 (codified as amended in scattered sections of 5 U.S.C.).

[11]. 28 U.S.C. § 1346(a)(2) (2006).

[12]. See generally Brief of Professor Gregory C. Sisk as Amicus Curiae in Support of Neither Party, Tohono O’odham III, 131 S. Ct. 1723 (No. 09-846), 2010 WL 3198843 (arguing for the Court to use Tohono O’odham to overrule Bowen).

[13]. At Oral Argument on November 1, 2010, Justice Antonin Scalia indicated a willingness to limit the ambit of Bowen: “Your argument assumes that there is available in the district courts injunctive relief under the Administrative Procedure Act (APA), and that is far from clear, even after Bowen, it’s far from clear if you had any business being in the district court anyway.” Oral Argument at 27:05, Tohono O’odham III, 131 S. Ct. 1723 (No. 09-846), available at http:// www.oyez.org/print/66580. Justice Scalia had dissented in Bowen. 487 U.S. at 913–30 (Scalia, J., dissenting). However, neither party argued to overrule Bowen in its brief, and neither lower court raised the prospect of doing so. The Court did not use Tohono O’odham III to overrule Bowen. It remains unclear whether the Court would consider overruling if confronted with the issue more directly. Writing for the Tohono O’odham III majority, Justice Anthony M. Kennedy noted that the Bowen claimant party to the litigation “could have filed in the CFC alone and if successful obtained monetary relief to compensate for any losses.” 131 S. Ct. at 1730. On the other hand, in her separate concurrence, Justice Sonia M. Sotomayor seemingly reaffirmed Bowen by writing, in a sentence immediately proceeding a citation to Bowen, “A plaintiff seeking both money damages and injunctive relief to remedy distinct harms arising from the same set of facts may be forced to file actions in both the CFC and federal district court.” Id. at 1734 (Sotomayor, J., concurring).

[14]. A necessarily sequential test differentiates between claims that could be filed in either order, like the average Bowen claim for specific relief and Tucker Act claim for money damages, and claims that must be filed in sequence, like an APA challenge followed by an inverse condemnation claim.

[15]. Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1555 (Fed. Cir. 1994) (en banc) (8–3 decision) (discussing Pa. R.R. Co. v. United States, 363 U.S. 202, 205–06 (1960); Aulston v. United States, 823 F.2d 510 (Fed. Cir. 1987)); see also Creppel v. United States, 41 F.3d 627, 633 (1994) (applying Pa. R.R. Co., 363 U.S. 202; Loveladies Harbor, 27 F.3d 1545; Aulston, 823 F.2d 510). In Pennsylvania Railroad Co., the Supreme Court ruled that the Court of Claims had “a duty to stay its proceedings” pending the review of an agency’s order for which only a district court had jurisdiction. 363 U.S. at 205–06. And, in Aulston, the Federal Circuit held that in order to pursue a takings claim before the U.S. Claims Court, a claimant first had to obtain a proper reversal, in district court under the APA, of adverse agency action concerning title. 823 F.2d at 51. The court added, “[J]ustice requires that the Claims Court action should be stayed pending resolution of the issues in a district court proceeding.” Id. at 514. It directed the Claims Court to hold the litigants’ takings claim “on its docket in suspension for such time as is reasonably necessary for [litigants] to challenge the [agency] decision in a district court and, if successful there, to return promptly to the Claims Court.” Id. This Article proposes a “necessarily sequential” test as the proper means of identifying a duplicative claim whose preceding claim was required to preserve a substantial legal right.

[16]. 28 U.S.C. § 2501.

[17]. 508 U.S. 200, 219–20 (1993) (Stevens, J., dissenting) (citing Hossein v. United States, 218 Ct. Cl. 727 (1978) (per curiam); Brown v. United States, 175 Ct. Cl. 343 (1966) (per curiam), both of which the majority in Keene overruled, 508 U.S. at 217 n.12).

[18]. Loveladies Harbor, 27 F.3d at 1549.

[19]. See, e.g., H.R. Rep. No. 105-424, at 2 (1998) (“H.R. 992 is intended to end the ‘Tucker Act Shuffles’ that currently can bounce property owners between U.S. District Courts and the Court of Federal Claims when seeking redress against the federal government for the taking of their property.”).

[20]. See supra Introduction and notes 1–6.

[21]. Cong. Globe, 40th Cong., 2d Sess. 2769 (1868) (emphasis added).

[22]. Act of June 25, 1868, ch. 71, § 8, 15 Stat. 77 (the 1868 Act) (emphasis omitted).

[23]. Cong. Globe 2769.

[24]. Id.

[25]. While this Article argues that the 1868 Act forced a mutually exclusive election, the courts regularly have reinterpreted this aspect of the statute’s purpose throughout its history. See Griffin v. United States, 85 Fed. Cl. 179, 191–92 (2008), aff’d, 590 F.3d 1291 (Fed. Cir. 2009), reh’g en banc denied, 621 F.3d 1363 (Fed. Cir. 2010) (“[T]he jurisprudence in this area appears to undergo a sea change every generation or so.”). Admittedly, the 1868 Act was poorly written, which has led to lingering disputes about the intent behind the original language and the significance of any updates to it. Compare Tohono O’odham III, 131 S. Ct. 1723, 1730 (2011) (“[T]he statute’s purpose is clear from its origins with the cotton claimants—the need to save the government from burdens of redundant litigation—and that purpose is no less significant today.”), with id. at 1736 n.7 (Sotomayor, J., concurring) (“Because § 1500’s jurisdictional bar applies only when the other suit is pending, ‘there is a good argument that, even when first enacted, the statute did not actually perform the preclusion function emphasized by its sponsor.’” (quoting Keene Corp. v. United States, 508 U.S. 200, 217 (1993))).

[26]. See Revised Statutes of the United States, Act Effective Dec. 1, 1873, ch. 21, § 1067, 18 Stat. 197.

[27]. Representative Butler chaired the Committee on the Revision of the Laws in the forty-second Congress (March 4, 1871–March 4, 1873). See H.R. Misc. Doc. No. 3, at 7 (1872). He subsequently chaired the Committee on the Judiciary in the forty-third Congress (March 4, 1873–March 4, 1875). See H.R. Misc. Doc. No. 2, at 5 (1875).

[28]. 2 Cong. Rec. 129 (1873).

[29]. See Act of March 3, 1911, ch. 231, § 154, 36 Stat. 1138 (codified at 28 U.S.C. § 260 (1940)).

[30]. Act of June 25, 1948, ch. 646, § 1500, 62 Stat. 942 (codified as amended at 28 U.S.C. § 1500 (2006)). Put more simply, today, the CFC “has no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending against the United States or its agents.” Tohono O’odham III, 131 S. Ct. at 1727.

[31]. See Tohono O’odham III, 131 S. Ct. at 1730; Keene Corp. v. United States, 508 U.S. 200, 211 n.5 (1993) (discussing Matson Navigation Co. v. United States, 284 U.S. 352, 355–56 (1932) (restricting the ambit of the 1911 text to suits against “agent[s] of the government” but not suits against “the United States”), superseded by statute, § 1500, 62 Stat. at 942). The Court’s Matson Navigation interpretation aligned with the 19th Century conception of sovereign immunity. See, e.g., United States v. Lee, 106 U.S. 196 (1882) (allowing only for suits against agents of the government); see also supra note 3. However, by 1948, Congress already had enacted two limited waivers to suits against the United States. See Federal Tort Claims Act of Aug. 2, 1946, ch. 753, 60 Stat. 842 (repealed and reenacted 1948); Tucker Act of Mar. 3, 1887, ch. 359, 24 Stat. 505; see also Tohono O’odham III, 131 S. Ct. at 1733–34 (Sotomayor, J., concurring) (“Since the enactment of § 1500 in 1868, Congress has expanded the avenues by which persons with legitimate claims against the United States may obtain relief.”). These waivers of sovereign immunity necessitated a broadening of § 1500 for the statute to remain effective.

[32]. Compare § 154, 36 Stat. at 1138, with § 1500, 62 Stat. at 942.

[33]. Keene, 508 U.S. at 209 (quoting H.R. Rep. No. 80-308, at A140 (1947)).

[34]. See Federal Courts Administration Act of 1992, Pub. L. No. 102-572, § 902, 106 Stat. 4516 (renaming the “United States Claims Court” the “United States Court of Federal Claims”); Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, § 133(e)(1), 96 Stat. 40 (renaming the trial division of the “Court of Claims” the “United States Claims Court”).

[35]. Tohono O’odham III, 131 S. Ct. at 1731.

[36]. Tohono O’odham II, 559 F.3d 1284, 1285 (Fed. Cir. 2009).

[37]. Id.

[38]. Id.

[39]. Id. This pattern of allegations by an Indian tribe against the government for mismanagement of trust assets is relatively common. See, e.g., Cobell v. Salazar, 573 F.3d 808 (D.C. Cir. 2009). The tribes often file first in district court for relief framed as an accounting and then in the CFC for relief framed as damages (as the Tohono O’odham did). However, unlike for other Bowen claimants, the statute of limitations for Indian claims in the CFC does not begin running until the filing tribe has received an appropriate accounting. Tohono O’odham III, 131 S. Ct. at 1731 (citing to 123 Stat. 2922 and 104 Stat. 1930 as examples). But see id. at 1735 n.5 (Sotomayor, J., concurring) (cautioning that the statute of limitations does not toll for claims concerning tangible assets, such as mineral estates).

[40]. Tohono O’odham II, 559 F.3d at 1285–86 (quoting District Court Complaint at 18–19, Tohono O’odham Nation v. United States (Tohono O’odham I), 79 Fed. Cl. 645 (2007) (No. 1:06-CV02236)).

[41]. Id. at 1286 (quoting CFC Complaint at 13, Tohono O’odham I, 79 Fed. Cl. 645 (No. 06-CV-944)).

[42]. Tohono O’odham I, 79 Fed. Cl. at 646, rev’d, 559 F.3d 1284 (Fed. Cir. 2009).

[43]. Tohono O’odham III, 131 S. Ct. at 1727.

[44]. Tohono O’odham I, 79 Fed. Cl. at 656.

[45]. Id.

[46]. See id.

[47]. Id. Compare Tohono O’odham II, 559 F.3d 1284, 1286 (Fed. Cir. 2009) (“[A] decree directing the defendants . . . to provide a complete, accurate, and adequate accounting of the Nation’s trust assets . . . and . . . to comply with all other fiduciary duties . . . .”), with Tohono O’odham I, 79 Fed. Cl. at 656 (“[A] determination of the amount of damages due . . . .”).

[48]. Tohono O’odham I, 79 Fed. Cl. at 656. Compare Tohono O’odham II, 559 F.3d at 1286 (“[A] decree providing for the restatement of the Nation’s trust fund account balances in conformity with this accounting, as well as any additional equitable relief that may be appropriate . . . .”), with Tohono O’odham I, 79 Fed. Cl. at 651 (“[A] determination that the Defendant is liable to the Nation in damages for the injuries and losses caused as a result of Defendant’s breaches of fiduciary duty.”).

[49]. See Tohono O’odham I, 79 Fed. Cl. at 656.

[50]. Id. at 656–57 (emphasis added).

[51]. Id. at 656.

[52]. Tohono O’odham II, 559 F.3d 1284.

[53]. See id. at 1291.

[54]. See id.

[55]. Id. (emphasis omitted).

[56]. Id.

[57]. Tohono O’odham II, 559 F.3d at 1291.

[58]. Id. at 1286, 1290.

[59]. Id. at 1291.

[60]. See id. at 1289–91.

[61]. Tohono O’odham III, 131 S. Ct. 1723 (2011).

[62]. Id. at 1730.

[63]. Id.

[64]. 135 Ct. Cl. 647 (1956). Casman distinguished between claims requesting different relief. See id. at 649–50. The en banc Federal Circuit repudiated Casman in April of 1992. UNR Indus., Inc. v. United States, 962 F.2d 1013 (Fed. Cir. 1992) (en banc) (9–1 decision), aff’d in part sub nom. Keene Corp. v. United States, 508 U.S. 200 (1993). As clarified infra in Part IV.A, the Supreme Court ultimately ruled that addressing Casman was unnecessary. Keene, 508 U.S. at 216. By May 1994, in Loveladies Harbor v. United States, 27 F.3d 1545, 1551 (Fed Cir. 1994), the Federal Circuit had rehabilitated Casman.

[65]. Tohono O’odham III, 131 S. Ct. at 1730.

[66]. Id. at 1731.

[67]. 508 U.S. 200.

[68]. Id. at 211–12 (“[T]he comparison of the two cases . . . would turn on whether the plaintiff’s other suit was based on substantially the same operative facts as the Court of Claims action. . . . That the two actions were based on different legal theories did not matter.” (discussing Ex parte Skinner & Eddy Corp., 265 U.S. 86, 96 (1924); Corona Coal Co. v. United States, 263 U.S. 537, 539–40 (1924); British Am. Tobacco Co. v. United States, 89 Ct. Cl. 438 (1939) (per curiam))).

[69]. Id. at 212–13. Furthermore, the Court noted, “While the [1948] language does not set the limits of claim identity with any precision, it does make it clear that Congress did not intend the statute to be rendered useless by a narrow concept of identity . . . .” Id. at 213.

[70]. See id. at 218–22 (Stevens, J., dissenting).

[71]. Id. at 218.

[72]. Id. at 219–20 (citing Hossein v. United States, 218 Ct. Cl. 727 (1978) (per curiam); Brown v. United States, 175 Ct. Cl. 343 (1966), both of which the majority in Keene overruled, 508 U.S. at 217 n.12).

[73]. Id. at 222 n.5 (citing Nat’l Steel & Shipbuilding Co. v. United States, 8 Cl. Ct. 274, 275–76 (1985)).

[74]. Tohono O’odham III, 131 S. Ct. 1723, 1737 (2011) (Sotomayor, J., concurring) (“To the extent the majority is concerned about the burdens of parallel discovery, federal courts have ample tools at their disposal, such as stays, to prevent such burdens.”). Justice Stephen G. Breyer joined Justice Sotomayor in her concurrence.

[75]. Id. at 1739–40 (Ginsburg, J., dissenting) (“To avoid both duplication and the running of the statute of limitations, the CFC suit could be stayed while the companion District Court action proceeds . . . . I see no impediment . . . in § 1500 or any other law or rule.”).

[76]. This Article argues that stay and abeyance is possible without additional legislation only for duplicative claims whose preceding claims were required to preserve a substantial legal right, that is, for “necessarily sequential” claims. See infra Part IV.A.2.

[77]. Keene, 508 U.S. at 212 n.6, 214 n.9, 216; see also Casman v. United States, 135 Ct. Cl. 647 (1956). Keene involved two sets of duplicate filings: (1) claims for contribution or indemnification (in district court) and for alleged breach of implied warranties (in the CFC); and (2) a Bowen claim and a claim in tort (in district court) and a takings claim (in the CFC). See Keene, 508 U.S. at 203–05; see also Tohono O’odham III, 131 S. Ct. at 1737 (Sotomayor, J., concurring). Casman involved claims for restoration of position (injunction) and for back pay. See Casman, 135 Ct. Cl. at 648. At the time of Casman, the Court of Claims did not yet have ancillary injunctive power. See Remand Act of Aug. 29, 1972, § 1, 86 Stat. 652 (codified at 28 U.S.C. § 1491(a)(2) (1982)).

[78]. 27 F.3d 1545 (Fed. Cir. 1994).

[79]. See id. at 1546–47.

[80]. Id. at 1554 n.23. To illustrate, a plaintiff’s APA challenge to enjoin an agency action that diminished his or her land value and inverse condemnation claim for money damages equal to the diminishment in value both would rely on the theory that the agency action caused the diminishment in value.

[81]. 135 Ct. Cl. 647; see supra note 64.

[82]. Loveladies Harbor, 27 F.3d at 1551 (citing Casman, 135 Ct. Cl. 647; British Am. Tobacco Co. v. United States, 89 Ct. Cl. 438 (1939)). As discussed infra in Parts III and IV, the “distinctly different” test may have reflected one effort by the Loveladies Harbor majority to relax the CFC’s statute of limitations for “necessarily sequential” claims without opening the floodgates to duplicative Bowen claims.

[83]. Tohono O’odham III, 131 S. Ct. 1723, 1730 (2011); see supra Part II.A.3.

[84]. 27 F.3d at 1555 (discussing Pa. R.R. Co. v. United States, 363 U.S. 202, 205–06 (1960)); see supra note 15.

[85]. 823 F.2d 510 (Fed. Cir. 1987).

[86]. Id. While Tohono O’odham III implicitly overrules the Loveladies Harbor “distinctly different” test by overruling Casman, the “substantial legal right” test retains vitality. It provides an alternative means for preserving “necessarily sequential” claims through stay and abeyance. See infra Part IV.A.2.

[87]. Senator Heflin was a Democrat from Alabama.

[88]. S. 2521, 102d Cong. (as introduced by Sen. Howell T. Heflin, Apr. 2, 1992).

[89]. 962 F.2d 1013 (Fed. Cir. 1992) (en banc) (9–1 decision) (overruling Bos. Five Cents Sav. Bank, FSB v. United States, 864 F.2d 137 (Fed. Cir. 1988); Hossein v. United States, 218 Ct. Cl. 727 (1978); Brown v. United States, 358 F.2d 1002 (1966); Tecon Eng’rs, Inc. v. United States, 343 F.2d 943 (Ct. Cl. 1965)), aff’d in part sub nom. Keene Corp. v. United States, 508 U.S. 200 (1992) (overruling only Hossein, 218 Ct. Cl. 727; Brown, 358 F.2d 1002). The Federal Circuit issued UNR Industries on April 23, 1992.

[90]. As previously discussed, the Federal Courts Administration Act of 1992 renamed the “United States Claims Court” the “United States Court of Federal Claims.” See supra note 34.

[91]. See Newport News Shipbuilding & Dry Dock Co. v. Garrett, 6 F.3d 1547, 1569–70 (Fed. Cir. 1993) (Bennett, J., dissenting). The Federal Courts Study Committee Implementation Act of 1992 incorporated provisions of the Claims Court Technical and Procedural Improvements Act of 1991, which the U.S. Claims Court had submitted to Congress as proposed legislation. Id. at 1569. As originally submitted to Congress, § 12 of the proposed legislation also would have repealed 28 U.S.C. § 1500. Judicial Conf. of the U.S., Report of the Proceedings, Mar. 16, 1992, at 22, available at http://www.uscourts.gov/uscourts/FederalCourts/judconf/ proceedings/1992-03.pdf. The on-again, off-again inclusion of the § 1500 repeal may have reflected resistance from the Judicial Conference of the United States (Judicial Conference) to other expansions of the Article I Claims Court’s jurisdiction. See id. at 22–23. Besides repealing 28 U.S.C. § 1500, the Claims Court had proposed an extension of its declaratory judgment power and a grant of jurisdiction to hear ancillary Federal Tort Claims Act claims. Id. at 22. The Judicial Conference is “[t]he policy-making body of the federal judiciary, responsible for surveying the business of the federal courts, making recommendations to Congress on matters affecting the judiciary, and supervising the work of the Administrative Office of the United States Courts.” Black’s Law Dictionary 923 (9th ed. 2009); see also 28 U.S.C. § 331 (2006).

[92]. See Court of Federal Claims Technical and Procedural Improvements Act: Hearing Before the Subcomm. on Courts and Admin. Practice of the S. Comm. on the Judiciary, 102d Cong. 2–15 (1992) [hereinafter Senate Hearing] (statement of C.J. Loren A. Smith).

[93]. Id. at 10–11 (statement of C.J. Loren A. Smith) (emphasis added).

[94]. See id. at 16–33 (statement of Stuart E. Schiffer, Deputy Assistant Att’y Gen. of the U.S.).

[95]. Id. at 18 (statement of Stuart E. Schiffer, Deputy Assistant Att’y Gen. of the U.S.).

[96]. Id. (statement of Stuart E. Schiffer, Deputy Assistant Att’y Gen. of the U.S.) (quoting UNR Indus., Inc. v. United States, 962 F.2d 1013, 1021 (Fed. Cir. 1992)).

[97]. Id. (statement of Stuart E. Schiffer, Deputy Assistant Att’y Gen. of the U.S.).

[98]. Keene Corp. v. United States, 508 U.S. 200 (1993). While Tohono O’odham III moves the jurisprudence back towards UNR Industries, the implications of § 1500’s interaction with Bowen were not yet apparent in 1992. The case for legislative reform remains strong despite Tohono O’odham III. See infra Part IV.

[99]. 27 F.3d 1545 (Fed. Cir. 1994).

[100]. See supra Part II.B.3.

[101]. 28 U.S.C. § 2501 (2006).

[102]. See, e.g., H.R. Rep. No. 105-424, at 5 (1998) (“[I]f a property owner wishes to both challenge the appropriateness of a taking of property and pursue monetary damages arising from the taking, the owner must choose to pursue one claim before the other—both claims may not be pursued at the same time.”).

[103]. See supra note 19.

[104]. Utah Senator Orrin G. Hatch, a Republican who chaired the Senate Committee on the Judiciary throughout the second half of the 1990s, played a leading role in five of the six repeal efforts: the (1) Tucker Act Shuffle Relief Act of 1997, H.R. 992, 105th Cong. § 3(a) (1998) (as passed by House of Representatives and referred to S. Comm. on the Judiciary, Mar. 12, 1998); H.R. 992, 105th Cong. § 2(c)(2)(A) (as introduced by Rep. Lamar S. Smith, Mar. 6, 1997); (2) Citizens Access to Justice Act of 1998, compare H.R. 1534, 105th Cong. § 6(a)(2)(A) (as amended by Sen. Orrin G. Hatch, Feb. 26, 1998) (providing for repeal of 28 U.S.C. § 1500), with Private Property Rights Implementation Act of 1997, H.R. 1534, 105th Cong. (as passed by House of Representatives, Oct. 22, 1997, and referred to S. Comm. on the Judiciary, Nov. 13, 1997) (not providing for repeal of § 1500); (3) Omnibus Property Rights Act of 1997, S. 781, 105th Cong. § 205(d)(2)(A) (as introduced by Sen. Orrin G. Hatch, May 22, 1997); (4) Citizens Access to Justice Act of 1997, S. 1256, 105th Cong. § 8(a)(2)(A) (as introduced by Sen. Orrin G. Hatch, Oct. 6, 1997); (5) Property Rights Implementation Act of 1998, S. 2271, 105th Cong. § 6(a)(2)(A) (as introduced on behalf of Sen. Orrin G. Hatch, July 7, 1998); and (6) Citizens Access to Justice Act of 1999, S. 1028, 106th Cong. § 6(a)(2)(A) (as introduced by Sen. Orrin G. Hatch, May 13, 1999).

[105]. See, e.g., Tucker Act Shuffle Relief Act of 1997, H.R. 992, 105th Cong. (as passed by House of Representatives, Mar. 12, 1998) (passing with 184 Republican votes and 46 Democratic votes, while garnering opposition from 36 Republicans, 143 Democrats, and Independent Bernard Sanders of Vermont).

[106]. S. 1028, § 6(a)(2)(A).

[107]. 487 U.S. 879 (1988); see supra note 13.

[108]. 27 F.3d 1545, 1555 (Fed. Cir. 1994); see supra notes 84–86 and accompanying text.

[109]. 962 F.2d 1013 (Fed. Cir. 1992), aff’d in part sub nom. Keene Corp. v. United States, 508 U.S. 200 (1993).

[110]. 135 Ct. Cl. 647 (1956).

[111]. UNR Indus., 962 F.2d at 1025 (“[A]s of today, Casman and its progeny are no longer valid.”).

[112]. 508 U.S. at 216.

[113]. See id. (“In applying § 1500 to the facts of this case, we find it unnecessary to consider, much less repudiate, the ‘judicially created exceptions’ to § 1500 found in Tecon Engineers, Casman, and Boston Five.”). Boston Five Cents Savings Bank, FSB v. United States, 864 F.2d 137 (Fed. Cir. 1988), was an application of Casman and Hossein. See UNR Indus., 962 F.2d at 1020–21.

[114]. See Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1551 (Fed. Cir. 1994) (“The description of the Casman rule as an ‘exception’ to § 1500 is inapt . . . . Casman and its progeny reflect a carefully considered interpretation of the statutory term ‘claims,’ a term undefined in the statute and subject to conflicting views as to its meaning.”).

[115]. 131 S. Ct. 1723 (2011).

[116]. Justice Kennedy’s majority opinion implicitly repudiated Casman and, thereby, the “distinctly different” test from Loveladies Harbor that relied on it; however, only Justice Sotomayor’s concurrence expressly characterized Casman as overruled. Compare id. at 1730 (“An interpretation of § 1500 focused on the facts rather than the relief a party seeks preserves the provision as it was meant to function.” (citing Casman v. United States, 135 Ct. Cl. 647 (1956), counterfactually)), with id. at 1734 (Sotomayor, J., concurring) (“The consequence of today’s decision is clear: The Casman rule is no longer good law.”). Neither opinion repudiated Loveladies Harbor. Indeed, Justice Kennedy did not even cite directly to the case. The “substantial legal right” language from Loveladies Harbor remains good law.

[117]. A plaintiff who prefers to challenge agency action rather than merely recover compensation for the diminishment in property value that agency action causes must pursue an APA claim in district court first. Once compensated in the CFC, the plaintiff has sold the taken property (the diminishment in property value) and no longer would have grounds to enjoin the agency action. However, by the time a plaintiff has exhausted all appeals on the APA claim, the CFC’s statute of limitations might have run. See supra Part III.B. This peculiar dilemma that regulatory takings plaintiffs face might explain the shift from the 9–1 UNR Industries majority (a Bowen claim) to the 8–3 Loveladies Harbor majority (a regulatory takings claim) in little more than two years.

[118]. Note that a “necessary sequential” test to identify and preserve only those sequential claims necessary to preserve a “substantial legal right” would not implicate Brown v. United States, 358 F.2d 1002 (1966), or Hossein v. United States, 218 Ct. Cl. 727 (1978), which the Supreme Court expressly overruled in Keene. See 508 U.S. 200, 217 n.12 (1993). Brown and Hossein preserved duplicative claims before the CFC, which earlier had failed in district court due to lack of subject matter jurisdiction. Id. at 216–17. Unlike the Brown/Hossein rule, which incentivized duplicative litigation by saving litigants who mistakenly filed the same claim in the wrong court, a “necessarily sequential” rule merely would incentivize litigants to exhaust their APA injunctive remedies before pursuing distinct takings claims in the CFC.

[119]. Petition for Writ of Certiorari, Tohono O’odham Nation III, 131 S. Ct. 1723 (2011) (No. 09-846), 2010 WL 169506, at *21.

[120]. Tohono O’odham II, 559 F.3d 1284, 1290 (Fed. Cir. 2009), rev’d, 131 S. Ct. 1723.

[121]. See infra Part IV.C.

[122]. Similarly, it is not clear that the average Bowen claimant before the CFC gains much advantage by also pursuing specific relief in district court. While Congress should amend § 1500 to extend stay and abeyance to duplicative Bowen claims, it is important to note that many Bowen claimants miscalculated by filing in district court in the first place. Having already exhibited a lack of strategic litigation foresight, it is probable that the average Bowen double-filer also would have failed to distinguish properly between “old money” and “new money” in his or her pleadings.

[123]. See Petition for Writ of Certiorari, supra note 119, at *25.

[124]. Id. at *22–23; see Keene Corp. v. United States, 508 U.S. 200, 207, 217–18 (1993) (applying § 1500 to affirm the dismissal of Keene Corp.’s suit before the CFC).

[125]. See Keene, 508 U.S. at 203–05. In other words, Keene involved a suit in district court for equitable relief and a suit in the CFC for legal relief.

[126]. However, as previously discussed, federal law provides for the tolling of the statute of limitations for many claims by Indian tribes against the government. See supra note 39.

[127]. A congressional-reference case is “[a] request by Congress for the United States Court of [Federal] Claims to give an advisory opinion on the merits of a nonpension claim against the United States.” Black’s Law Dictionary (9th ed. 2009); see also 28 U.S.C. §§ 1492, 2509 (2006).

[128]. See infra Part IV.B.

[129]. 363 U.S. 202 (1960).

[130]. 823 F.2d 510 (Fed. Cir. 1987).

[131]. Vaizburd v. United States, 46 Fed. Cl. 309, 310 (2000). Indeed, § 1500 only traps unwary Bowen claimants. A wary claimant merely would file in the CFC first to avoid § 1500’s interposition. See infra Part IV.C (discussing the pending prong’s order-of-filing rule). In contrast, a regulatory takings plaintiff must pursue an APA claim first if he or she intends to pursue an APA claim at all.

[132]. Bowen v. Massachusetts, 487 U.S. 879, 930 (Scalia, J., dissenting).

[133]. See Keene Corp. v. United States, 508 U.S. 200, 219–20 (1993) (Stevens, J., dissenting) (suggesting that, when a case is pending in another court, the CFC “may retain the case on its docket pending disposition of the other action”); see also supra Part II.B.2.

[134]. See supra note 91.

[135]. See supra Part III.B. As previously discussed, regulatory takings claims already are suitable for stay and abeyance under the surviving “substantial legal right” language from Loveladies Harbor. See supra note 116.

[136]. 79 Fed. Cl. 645 (2007), rev’d, 559 F.3d 1284 (Fed. Cir. 2009).

[137]. Id. at 659 n.16 (“[I]f the filing dates of the complaints had been reversed, [S]ection 1500 would not be a problem and the two courts would use traditional principles of comity, collateral estoppel, and res judicata to sort out any duplication.”).

[138]. Senate Hearing, supra note 92, at 11.

[139]. Upon outright repeal, the courts might adopt stay and abeyance over time, in line with modern docket management conceptions. However, the lack of a formal statutory scheme or legal test like “necessarily sequential” to identify and manage preclusion issues might elicit Judicial Conference opposition or spur avoidable litigation, for example, motions to dismiss Bowen claims that likely would be stayed.

[140]. Judicial Conf. of the U.S., Report of the Proceedings, Sept. 19, 1995, at 83, available at http://www.uscourts.gov/uscourts/FederalCourts/judconf/proceedings/1995-09.pdf. The Judicial Conference’s 1992 and 1995 comments constitute the only references to § 1500 in the entirety of the Reports of the Proceedings of the Judicial Conference between March 1990 and March 2011.

[141]. The Administrative Conference of the United States is an “independent federal agency that provide[s] a forum where agency heads, private attorneys, university professors, and others stud[y] ways to improve the procedures that agencies use in administering federal programs.” Black’s Law Dictionary (9th ed. 2009). It had been abolished in 1995. Id. However, it was reestablished in 2010. See Admin. Conf. of the U.S., Revived Administrative Conference Publishes First Recommendation in Fifteen Years, Jan. 4, 2011, http://www.acus.gov/revived-administrative-conference-publishes-first-recommendation-in-fifteen-years.

[142]. Admin. Conf. of the U.S., A Procedural Trap: 28 U.S.C. § 1500, http://www.acus.gov/ research/the-conference-current-projects/weeding-out-purposeless-procedural-traps/section1500 (last visited July 9, 2011).

[143]. See Pro Se Information, U.S. Court of Fed. Claims, http://www.uscfc.uscourts.gov/pro-se-information (last visited July 9, 2011) (discussing § 1500 within a subsection headed, “Some of the Statutes that may be helpful in learning if your claim belongs in this court”).

[144]. See Keene Corp. v. United States, 508 U.S. 200, 217 (1993) (“[T]he ‘proper theatre’ for such arguments . . . ‘is the halls of Congress.’” (quoting In re Smoot, 82 U.S. (15 Wall.) 36, 45 (1873))); see also Tohono O’odham III, 131 S. Ct. 1723, 1731 (2011) (“If indeed the statute leads to incomplete relief, and if plaintiffs like the Nation are unsatisfied, they are free to direct their complaints to Congress.”).

[145]. See Hardwick Bros. Co. II v. United States, 72 F.3d 883 (Fed. Cir. 1995), aff’g Tecon Eng’rs, Inc. v. United States, 343 F.2d 943, 949 (Ct. Cl. 1965) (“[T]he only reasonable interpretation of the statute is that it serves to deprive this court of jurisdiction . . . only when the suit shall have been commenced in the other court before the claim was filed in this court.” (emphasis added)). The jurisprudence takes another twist in the event that a district court transfers part of a single-filed claim to the CFC under 28 U.S.C. § 1631. In that scenario, the CFC then would have to dismiss the partial claim for lack of jurisdiction due to § 1500. Harbuck v. United States, 378 F.3d 1324, 1328 (2004), aff’g United States v. Cnty. of Cook, 170 F.3d 1084, 1091 (1999); see also Griffin v. United States, 85 Fed. Cl. 179, 184–86 (2008) (applying Harbuck, 378 F.3d 1324; Cnty. of Cook, 170 F.3d 1084).

[146]. See Griffin, 85 Fed. Cl. at 193. A plaintiff often would be foolish not to double-file (in the proper order) because there is little cost in doing so under Hardwick Bros. II/Tecon Engineers but potentially great cost in not doing so under Harbuck/County of Cook. As CFC Judge Francis M. Allegra observed in Griffin, the rules of County of Cook and Tecon Engineers arguably are mutually inconsistent. See id. at 184 (“Under Tecon, the simultaneous filing of claims in the district court and [the CFC] seemingly would not trigger section 1500 as the former would not be ‘before’ the latter. The Federal Circuit, however, . . . reached the opposite conclusion . . . in County of Cook . . . .”).

[147]. Id. at 192 (quoting UNR Indus., Inc. v. United States, 962 F.2d 1013, 1019 (Fed. Cir. 1992)).

[148]. 962 F.2d at 1023 (“Tecon is overruled.”).

[149]. 508 U.S. at 216.

[150]. 135 Ct. Cl. 647 (1956). See supra notes 64, 116.

[151]. Hardwick Bros. Co. II v. United States, 72 F.3d 883, 886 (Fed. Cir. 1995) (“Tecon Engineers remains good law and binding on this court.”).

[152]. 559 F.3d 1284 (Fed. Cir. 2009), rev’d, 131 S. Ct. 1723 (2011).

[153]. Id. at 1291 (emphasis omitted).

[154]. Id. at 1292 (quoting Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549 (Fed. Cir. 1994)).

[155]. See 131 S. Ct. at 1729 (“The panel . . . could not identify any ‘purpose that § 1500 serves today,’ in large part because it was bound by . . . precedent that left the statute without meaningful force.” (citation omitted)); see also id. at 1730 (“Courts should not render statutes nugatory through construction.”). Nevertheless, the Court again deferred the order-of-filing issue to a future case. Id. at 1729–30 (“The Tecon holding is not presented in this case because the CFC action here was filed after the District Court suit.”); see also id. at 1735 n.5 (Sotomayor, J., concurring) (“The validity of the . . . holding in Tecon Engineers is not presented in this case.” (citation omitted)).

[156]. See supra note 19.

[157]. 131 S. Ct. 1723.

[158]. 487 U.S. 879 (1988).

[159]. Loveladies Harbor, 27 F.3d 1545.

This Article critiques crimmigration law’s uniquely cabined approach to the temporal aspects of decisions about membership. It explores how crimmigration law wastes the potential for time to usefully evaluate a noncitizen’s connection to the community, the advisability of expulsion, and the potential for inclusion. By establishing permanent expulsion as the default consequence, crimmigration law ignores the potential for reintroduction into the community that criminal sentencing and relief from deportation contemplate. Instead, it combines and heightens the exclusionary power of criminal and immigration law. Focus on that moment has the effect of flattening the hierarchy of immigration status—from permanent resident to unauthorized migrant—that has traditionally informed the level of constitutional and statutory rights granted to individual noncitizens. The Article explores solutions to this temporal stasis, examining the benefits and costs of resurrecting a statute of limitations for crimmigration law.

Public defender organizations already experiment with various methods for delivering the best service to clients with potential immigration issues mixed in with their criminal law issues. Some of those methods involve contracting out the immigration work to specialists outside the organization; others entail bringing the immigration expertise inside the organization.

The Padilla holding gives some impetus to the insider strategy. It increases the costs to a defender organization if one of its lawyers fails to recognize a straightforward immigration issue. As a result, in close cases, defender organizations will now become somewhat more likely to bring this function in-house, where it will be easier to monitor the quality of the work. In this way, Padilla tilts the field toward larger defender organizations with greater specialization of function and more coordination of effort among attorneys—in short, toward a more bureaucratic criminal defense.

This Article examines the position of noncitizens in the United States. For some noncitizens, particularly those without legal status, courts treat unlawful entry or removability as a quasi-crime, negatively affecting the case in ways similar to the effect of a prior criminal conviction. For other noncitizens, particularly but not exclusively those with legal status, the possibility of deportation is treated as a quasi-punishment, which sometimes mitigates other punishments or affects charging decisions if deportation or the overall package of sanctions would be too harsh. This Article proposes that it is consistent both with fairness to all individuals in the United States and with widely accepted principles of criminal justice to consider—carefully— immigration status in the criminal process.

Thank you very much. I am incredibly grateful, flattered, and thrilled to win this award. I love teaching so much, and to have that love reciprocated is simply awesome. Thank you to Mr. William Rutter and the Rutter family for establishing this award. Your commitment to legal education and to assisting practicing lawyers is as impressive as it is inspiring. It’s an honor to receive an award from you. Thank you to the Rutter Award Committee for selecting me and to Dean Yeazell for his very kind comments.^[1]

As many of you know, the speeches given at this ceremony have tended to discuss teaching and one’s views on what makes a good teacher. I will speak to that, and, without making this too long, I hope to share some of what I believe makes good teaching. But, initially, I want to talk about a journey of my soul: a quest for professional happiness that, despite some initial fits and starts, has ultimately been thoroughly rewarded.

Let’s start at the beginning, my childhood. Even as a child, I loved learning, and I loved reading. When I wasn’t playing baseball or football in my yard, I was reading. Books on presidential history. Books on baseball history. Books on almost anything. And here, I want to thank my parents. In addition to loving me, they always encouraged and nurtured my love of learning. I’m incredibly grateful for that. So, high school came, and I was still the person who loved reading and learning. I also loved basketball, so much so that I would have enjoyed becoming a professional basketball player. Sadly, despite a genuine love for the game and a great work ethic, my talent level didn’t permit anything beyond a college basketball career.

Thus, the career of basketball coach and high school teacher came into focus for me. But, when I went to college, I chose a school without a teaching degree program. For some reason, I got it in my head that I wanted to pursue a pre-med course of study. I had minimal interest in science, I don’t like blood, and I’m uncomfortable with human suffering, but somehow being a doctor seemed like a good choice.

But the goal of teaching was still lurking—especially after I was inspired by several tremendous professors during college. I decided that after college I would go to graduate school to pursue a master’s degree in education. I knew I wanted to be a teacher for many reasons. First, I love being in a school envi­ronment. Second, as I mentioned earlier, I love learning. I enjoy having my mind opened to new ideas. Finally, I love connecting with others, and just being around other smart people. I thought that teaching would be a great way to continue doing this.

Right after graduation, however, to prepare for my future career, I taught in a summer honors program for incoming high school seniors who planned to attend college. I was awful. Simply, truly awful. Not Tom Holm self-deprecating, self-effacing awful. But truly, genuinely, objectively awful.

So I forsook the dream. But all was not lost. I knew I loved to think; I knew I liked to argue. And I knew I wanted to make my small corner of the world just a little bit better. So, law school it was. I hoped to perhaps someday work in an attorney general’s office and maybe become a judge. But then, after law school and a judicial clerkship, I lost my way. I went to a large law firm. It was an excellent firm, and I was treated very well. The people who I worked with were great, but the job itself just didn’t inspire my soul.^[2]

So, I began to think of what else I could do. What was I, a young, unhappy man at a professional crossroads, going to do? After much soul-searching, it came to me: I had to have faith. Faith in what I always knew I wanted to do—teach.

Thus, my evolution into a career of teaching has been a story of faith. Similarly, my career as a teacher has been a story of faith. I’d like to share a few significant things I have faith in as a teacher.

I. Faith in the Analytical Process

First, I have faith in the analytical process, what others would perhaps call the process of lawyering. If you know process, you know everything. There is great comfort in knowing you can always make yourself an expert, even if you’re initially unfamiliar with the law involved in your client’s problem.

That faith in process informs my teaching. It’s not surprising given the classes I teach, but I’ve always viewed law school as an opportunity to acquire tools for learning. In the best tradition of liberal arts, you take classes you enjoy, knowing that what you’re learning in those classes is an approach to legal analysis that will carry you through those times when you lack expertise.^[3]

My commitment to secondary sources is symbolic of my faith in the analytical process. As my students know from my passionate, persistent, and consistent reminders, they should always begin their analysis of a legal prob­lem with a secondary source. Reviewing a secondary source or two provides students with an initial foundation for understanding the nature of their client’s problem.^[4] This basic foundation allows students to pursue their research more efficiently and to become more of an expert regarding their client’s prob­lem in a shorter period of time than they would have without the sec­ondary source.

I believe that, in the end, any law professor’s job is not to teach expertise. It’s our job to help students develop tools with which they can acquire their own expertise. Laws change. Rules change. Clients change. Facts change. The only thing that is constant is how one approaches the craft of legal analysis. We give our students many valuable lessons, but, beyond a foundational knowledge of black letter law, students should leave law school with an approach to legal problems that they can use to adapt to all the myriad situations they will confront as a lawyer.

II. Faith in Lawyering Skills

Because I have faith in process, I have faith in Lawyering Skills. I am so very proud of what I teach. Lawyering Skills provides a strong foundation and context for almost everything that students learn later in law school, as well as in their careers.

How does Lawyering Skills accomplish this important feat? It is a class that externalizes process. It is a class that explains how to get to a satisfactory answer, or if—as is usually the case—an answer is not available, to get to a compelling argument after a thorough and complete analysis of the issues. Students get to work with an experienced lawyer and teacher who models good legal analysis and articulates the questions that a good lawyer has to ask herself when she is practicing.

It’s not a writing class, nor is it a research class. It’s a process class. The underly­ing goal of the class is not to teach what to do, but to teach how to do it, and, most importantly, to teach why the suggested approaches to problem-solving are effective. For example, let’s talk about teaching research. You could easily take a bibliographic approach, simply informing students about what sources are out there and perhaps illustrating what information each source contains. But that is unhelpful, as it only teaches the “what,” rather than the “how” or the “why.”

Instead, you focus first on the “how?” How does one use the myriad research tools available? How does one synthesize a uniform approach that applies to several research tools?^[5] How does one integrate all of these tools into a comprehensive research plan, especially when even very efficient legal research involves some trial and error and different sources may be more effective in different circumstances?^[6]

The question of “how?” leads to the even more important question of “why?” Why does one use a secondary source?^[7] Why does one perform a West Key Number search?^[8] Real learning especially occurs at this level. If you get students to see the “why?” in something, they are much more likely to accept what you’re suggesting as legitimate and principled. They are also much more likely to internalize what you’ve taught them and apply what they know in their practice. They will embrace process and ultimately become more effective lawyers.

I use a similar approach when teaching “legal writing.” Not once have I thought I’m teaching a writing class. This is good because I’m not teaching a writing class. If I were teaching a class where I focused primarily on teaching or illustrating legal writing formulas like CRAC, CREAC, and CRRPAP,^[9] I would shoot myself.^[10] Similarly, if I were teaching a class where I was focused primarily on sentence structure and grammar, I would defenestrate myself.

Instead, I’m teaching a pure thinking class, which is a pure delight. Lawyering Skills is a class in which instructors need to externalize process by focusing on the analytical process itself, divorced from any particular doctrinal subject. For that reason, Lawyering Skills is an incredibly challenging class to teach: You’re out there on your own. You have no theory or doctrine to back you up. You’ve got nothing to support your teaching points but the knowledge that you can justify every statement you make to your students with a principled reason as to why your approach to the problem is effective and can work in other related situations in which the issue might also arise.

Thus, I am forced to consistently ask the question “why?” Why is a partic­ular statement the holding of the case? Why is a particular fact central to the court’s holding? Why does a particular fact support a principled argument?

I persistently engage in this process because writing cannot be divorced from thought. At times, we tend to simplify bad legal analysis as bad writing. After working with so many talented and bright students, my experience is that most bad writing isn’t because a student is a bad writer, it’s because a student is an inexperienced thinker.

Clarity of thought is expressed through clarity of writing. Most good technical writers will still write poorly if they don’t have clear ideas to express. If students don’t fully understand their authority, or if they don’t understand why their facts are relevant to their authority, they will not analyze the problem clearly or completely, which means that their writing will not be clear and concise.^[11]

In the end, I’m teaching that one of the best signs of intelligence is the ability to communicate clearly. I always tell my students: Not once should you try to show that you’re smart. You are smart. You don’t need to show it off. Instead, let your intelligence shine through by clearly communicating what you know. Take your expertise and make it easily accessible to others. Take dif­fi­cult ideas and be smart enough to conceptualize them in a simple, effective way that makes it easy for novices and people less expert than you to understand your argument. Because that’s what lawyers do. They communicate to clients, colleagues, and judges, all of whom know less about an issue than a lawyer does after she has analyzed it fully.

So, how do you get students to do this? You embrace Lawyering Skills’ approach to teaching the lawyering process: repetition and critique, in and out of class. It’s why we work through multiple in-class exercises that are designed to illu­strate an approach to legal analysis and its written expression before we ever give students an out-of-class written analysis assignment. Moreover, it’s why we give students five substantial written analysis exercises each aca­demic year. Students can only learn the process of written analysis by doing written analysis.^[12]

Implicit in this approach is the idea that the analytical process can and should be taught. The analytical process is not a mystical thing. It is not something that only a few particularly gifted people grasp. Instead, the analytical process is something that can be learned. Students can learn this process by working through problems, where their teachers model the analyti­cal process by identifying the questions a student should be asking herself whenever she analyzes a problem.^[13]

This takes a painstaking willingness to work through a problem. Rather than simply pointing out that something doesn’t work, you must identify why it doesn’t work, and, most importantly, tie why it doesn’t work to a broader analytical principle that students can then use when they approach their next problem. Students need some innate ability, and a handful of students are “naturals.” But learning to be a lawyer is an analytical craft. And, like any craft, you’re not only relying on native intelligence. You’re relying on expe­rience. You’re relying on practice. You’re relying on process. It’s from this practice with performing analytical tasks that students become better at analyzing legal problems.

It’s what I always tell my students early in the fall semester when they’re struggling: “You’re smart, but you’re untrained. You’re inexperienced.”^[14] It’s true—my students in April are no smarter than they were the previous August. However, they are much, much better at thinking like lawyers. It’s because they’re trained. It’s because they’re more experienced. It’s a labor-intensive process for both teacher and student, but it’s this labor that gives students the opportunity for a rewarding career.

“Yea, though I walk through the valley of the shadow of death, I will fear no evil: for thou art with me; thy rod and thy staff, they comfort me.”^[15]

This is perhaps the purest expression of Lawyering Skills. I am a constant thorn in my students’ sides. They get eight research assignments over the year. They also get five substantial writing assignments, three of which formally entail multiple drafts.

For our students, the analytical process is their rod; it’s their staff. What allows students to persist through all of this work, as well as through their legal careers, is the comfort that they carry one thing with them, always: a coherent and consistent approach to analyzing legal problems. They can know absolutely nothing about an issue—and that will happen a lot early in their careers and still will happen much later in their careers—but they still know everything if they just know how to approach the process of analyzing legal problems.

And how do you teach process? You give students questions to ask themselves, not answers.

III. Faith in the Socratic Method

And thus . . . I have faith in Socrates. More specifically, I have faith in the Socratic method. You can’t lecture on a mode of thought. Instead, you have to enable students to do the work themselves. They do the work by answering your questions, and thus, through practice and experience, learn how to ask themselves the questions necessary to fully analyze a problem.

To have faith in the Socratic method, you have to have faith in your students and their capacity to engage in the enterprise of lawyering—to be active, not passive, learners.

The Socratic method is hard for a teacher. It requires you to give up control. You become dependent on your students’ answers, rather than on your statements.^[16] And it challenges you to identify follow-up questions to whatever answer a student happens to give you. And it’s scary, because you don’t know what the answer is going to be—especially early in the first year when students are inexperienced. It also requires patience, because it takes longer to analyze a problem if you’re not analyzing the issue yourself.

It’s a painstaking process, and you work through less material than by lecture. But, by doing less, you achieve more.^[17] You give students the tools to analyze rules on their own, rather than teaching them to depend on others to analyze those rules for them.

And, there is a joy to seeing a student work through an issue on his own, even when it appeared at first that he couldn’t do it. To accomplish this, you need to master the skill of first asking a student broad questions to see if he can work through an issue on his own, and then move to narrower, more focused questions if the student is struggling. After focusing the student, you then slowly move him back to the broader question that he can now answer, because you took him down the path.

There’s also a joy to the simple question of “why?” My experience is that many “bad” answers have the genesis of a good idea in them. For example, I remember one year when I was teaching the very first class in our law school’s summer program. The goal of the class was to help students understand how to read a case and how to use a case to formulate arguments. So, I gave a short lec­ture on a process one can use to analyze a case, emphasizing such fundamen­tal things as identifying the issue, identifying the holding, identifying the relevant facts, and identifying the court’s reasoning. I then moved on to a discussion of the case we were working with, and I asked a student an open question along the lines of: “How are you going to begin analyzing this case?” The student immediately said, “I want to look at the year of the decision.” Espe­cially in the context of what I was trying to achieve in this part of the class, the answer was truly dreadful. But, I asked the simple question, “Why do you care about the year?” I received a fabulous answer. She said, “The case is old, so maybe there is some change in the law or change in policy that has happened since the case was decided that could be used to undermine the court’s decision.” Within twenty minutes of her first-ever law school class, she was thinking about advocacy, even though the nature of her actual response suggested she was clueless. And, by asking “why,” I now had a teaching opportunity to tie her concern into the broader process of lawyering.

In the end, the Socratic method is what allows you to externalize process. You can guide them, but students can only get to where you want them to be with their own effort.

Rather than lecture about rules, you must choose to engage students in legal analysis. Students will only learn to be agile with rules if you ask them to work with rules. Make them justify their answers—always—even when their answer is a good one. That justification depends always on authority, and that answer is dependent upon the nature of a client’s situation.

In the end, lawyering is a craft. You can learn part of the craft through reading, and you can get a basic foundation by listening to another person tell you what to do. But in the end, you can’t be told how to do a craft. For example, you can’t tell people how to be a doctor. They have to practice to become a good doctor. It’s why there are cadavers and why there are medi­cal resi­dencies. Hypos and questions are our cadavers, as our students who struggle with those questions and hypos can easily attest.

But, sadly, for most students, process divorced from doctrine is not immediately engaging. It’s thinking about thinking, which is hard to do. It’s not as inherently interesting as the balancing of constitutional privacy rights against protecting citizens from harm, or even debates about the scope of the Commerce Clause. (As a student, I loved the Commerce Clause. To me it was fascinating.) Thus, you need to get your students excited about the analytic skills they’re learning.

IV. Faith in Passion

How, then, can you get students excited about the process of lawyering?

You have faith in passion. I try to bring passion into every class I teach, simply because I believe that what I am teaching is so important to my students’ futures. To get students to care about process divorced from doctrine, you have to have passion for the students, and you have to have passion that what you’re teaching matters.

I’ve found that, simply by letting students know that you care that they learn and that you believe in what you’re communicating, they are much more willing to embrace what you’re offering. This means bringing energy to every class, as if you’re having a mortal battle with inexperience that you have to win.

As some people know, I love music. And part of that love is a penchant for R&B music. Most of the time my taste is reasonably good. But, especially in high school, it wasn’t always so good. That’s what led me to an Ashford and Simpson concert. They wrote some great songs for some Motown stars, but on their own, they were not overly impressive. Fortunately, only one thing stands out from that concert. It was a short speech by Nicholas Ashford, delivered near the end of the concert before singing another mildly good song. He said to the crowd, “Whenever I sing, I sweat. And my fans always ask, ‘Nicholas, why do you always sweat so much?’ Wanna hear why I sweat so much?” [Crowd begs for an answer].

He said simply, “Because I’m giving you all I got.” [Crowd goes wild]. Teaching is fun, and when you have passion for what you do, you give it all you got.^[18]

Besides my passion for teaching, I am passionate about my colleagues and friends. So many people have had such an influence on me; I can’t possibly thank them all. And, similarly, I’d like to acknowledge all the good people in this school—my faculty colleagues and my staff colleagues—who have been so fun and so nice to work with.^[19]

I also want to thank my past^[20] and present Lawyering Skills colleagues, some of whom were excellent mentors and some of whom have become dear friends. I’m told I get a lot of credit for how strong our Lawyering Skills Clinical Program is—and I’m proud of what a great class we’ve developed—but that credit should be shared with my past and current colleagues. Every class I teach, I impart something contributed by my past and current colleagues. Similarly, I pool the collective wisdom of Lawyering Skills instructors when I work with a new instructor in the Program.

And, of course, I’ve gotten so much advice and wisdom from so many of my colleagues. There are many stories to choose from, but I’d like to share one of my favorites. I remember the summer just before my first year of teaching. Clyde Spillenger asked me and the other two newbies, Dana Gardner and Janet Dickson, out to lunch. One thing he said struck me and transformed how I thought about the classroom dynamic. He said simply, “All students want to do is to look up to you.”

I’m not sure if he’s right about this. It frequently seems that all my students want to do is laugh at me. But his statement remained a touchstone for me. The beauty of this statement for me was the following: If you start with this precept, you can set a positive tone for the class. I didn’t need to worry about establishing authority. I already had it. Instead, I could work side by side with my students, with a foundation of trust that our roles were immediately and readily understood, so our roles could evolve comfortably and easily as we devel­oped increasingly positive rapport. We could have a partnership in learning.

V. Faith in Love

Thus, I was able to put my faith in love. I love students. Students are the best thing about teaching, and I’m incredibly fortunate I have a profes­sion and a class that give me so much contact with students. You offer them love, you offer them compassion, and the rewards are great. You can trust them, and you ben­efit from your experiences with them.

As a teacher, you put your trust in students all the time. During our first year of teaching, I remember Dana Gardner saying the following after a bad class: “Being a teacher is like being an actor, except when you stink one day, you have to perform in front of the same audience the next day.” But the good thing is that students, in my view, are very forgiving. If they see that you’re trying, if they see that you genuinely care about their progress, they will forgive any number of teaching mistakes.

I’ve found that if you give love to students, they will give love in return. I remem­ber the first class I taught in law school. I was terrified of public speaking, and I can assure you that my first class began poorly. I stammered. I paused in awkward places. I said very little of substance.

I was dying up there, but I found comfort in the smile and undivided attention of a student—a student who was smiling and being attentive simply because she was a nice person who saw that I was struggling on my first day. This student exemplifies how kind so many of our students are. I received very good evaluations at the end of my first year. However, upon reflection, I was at best a mediocre teacher back then.

Despite my shortcomings, my students gave me love. They wanted me to succeed, so they offered love and forbearance. The comfort that my students wanted to learn, and wanted themselves and me to succeed, gave me the time I needed to evolve into a good teacher.

I feel that love every year. While not all of my students have it, many of my students do. I see it in their eyes. I see it in their smiles. And, I see it in their engagement in the enterprise of learning. In my view, when you teach, you don’t really need to worry about occasionally showing weakness or about occasionally being self-deprecating. You can show your humanity. If students see that you care, if they see that you love, they will respond in kind.

So, I would like to end by offering students, past and present, my love. Lawyering Skills on its face is the worst class in the world to teach. I have to critique over two hundred papers a year. Add to that reviewing over two hundred research assignments and grading two sets of papers and an exam, and it appears to be a job that only few could love.

But yea, though I walk through the valley of the shadow of death, I shall fear no evil, for students are with me. They are my rod, my staff. They comfort me. My job is to work closely and consistently with smart, talented, well-meaning individuals. And in turn I receive small and large acts of kindness, as well as endless amusement. Students make all the work worthwhile. It’s a daily delight and a yearly joy.

It’s just warm love

It’s just warm love

And it’s ever-present everywhere

And it’s ever-present everywhere

That warm love.^[21]

Thank you all so much for coming. This is really a thrill for me, and I am grateful you could share this day with me. Thank you.

In 1984, the Supreme Court loosened a thread in the protective fabric of the Fourth Amendment exclusionary rule. United States v. Leon^[3] announced a “good-faith” exception for “reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate.”^[4] Later cases unraveled the rule a bit more. In 1987, Illinois v. Krull^[5] applied Leon’s exception to a police officer’s reliance on an unconstitutional state statute that authorized the warrantless seizure of evidence from an automobile wrecking yard. In 1995, Arizona v. Evans^[6] applied the exception to a police officer’s arrest of a driver based on a false report of an outstanding arrest warrant transmitted from a court database. Most recently, in 2009, Herring v. United States^[7] stretched the exception slightly more to reach reliance on a false report of an outstanding warrant from a police clerk in a separate county. And more ominously for the integrity of the rule, the Court defined Leon’s “reasonable reliance”^[8] to amount to anything short of systematic and recurring negligence.^[9] In sum, Leon and its progeny stand for the proposition that police acting in “good faith”^[10]—broadly construed—may rely on information or apparent authority supplied by courts, legislatures, and other police agencies without triggering the exclusionary rule for Fourth Amendment violations.

In the wake of Herring, the California Supreme Court tugged—unanimously and sharply—at this weakened structure. When California’s DNA and Forensic Identification Data Base and Data Bank Act of 1998^[11] went into effect, Paul Eugene Robinson “was in custody at [a detention center] for two misdemeanor convictions and awaiting transfer to state prison based on a parole revocation [for a] burglary.”^[12] Although Robinson’s crimes did not qualify him for inclusion in the new database for convicted offenders, “an unknown person in the Center’s records department . . . mistakenly identified [him] as a prisoner with a qualifying offense . . . . As a result of that mistake, a [blood] sample . . . was drawn . . . .”^[13] The California Department of Justice laboratory analyzed the sample, uploaded the DNA profile, and got a cold hit to the man wanted on a “John Doe” DNA warrant for “five felony sexual offenses, all perpetrated against Deborah L. on August 25, 1994.”^[14] A jury convicted Robinson of these offenses.^[15] The California Court of Appeal affirmed, and the state supreme court granted review.^[16]

The California Supreme Court held that the arrest warrant was valid and thus tolled the statute of limitations on rape prosecutions.^[17] It held that the erroneous extraction of blood violated state law but not the Fourth Amendment.^[18] For good measure, it added that even if there had been a constitutional violation, it would not have mattered under the good-faith exception.^[19]

This last dictum is my target here. As indicated above, in the Leon line of cases the U.S. Supreme Court did not go so far as to approve the admission of evidence seized in violation of the Fourth Amendment by a police agency relying on its own, mistaken information—and for good reason. When the police department conducting the unreasonable search or seizure is itself the source of the mistake that appears to justify the search, it can hardly be said, as the Leon Court did, that “there is no police illegality and thus nothing to deter.”^[20] Rather, one must make the more troubling argument, embraced in Herring, that even though the exclusionary rule can deter negligent and unconstitutional conduct, the cost of doing so is too high to pay.

Thus, the Robinson court made no direct mention of Leon, instead relying largely on the controversial Herring decision.^[21] In Herring, police officers arrested and searched Herring and his vehicle, uncovering contraband and an illegally possessed weapon.^[22] The officers lacked probable cause to detain or search Herring until a police clerk in a neighboring county advised them that a current warrant called for his arrest.^[23] However, the police database that the clerk had relied on reported a warrant when in fact it had been recalled.^[24] Regarding the false report as a single act of “nonrecurring and attenuated negligence,”^[25] a bare majority of the Court held that the application of the exclusionary rule was not warranted.^[26] Four justices objected that acts of distinct but cooperating police agencies supplied “no occasion to further erode the exclusionary rule.”^[27]

Despite the Court’s division in Herring, one thing is clear. In every Supreme Court case that has treated an officer’s reliance on erroneous information as grounds for suspending the exclusionary rule, the information has come from an unrelated and apparently reliable governmental source—a judicial officer (Leon), a legislature whose enactments enjoy a presumption of constitutionality (Krull), judicial staff (Evans), and a records clerk at another police department (Herring).^[28] In these circumstances, courts may balance “the culpability of the police [against] the potential of exclusion to deter wrongful police conduct.”^[29] Within these boundaries, ordinary and “isolated negligence” normally is not enough to warrant exclusion.^[30]

These boundaries should not be expanded. To apply this balancing test more widely would open every Fourth Amendment violation case arising from inaccurate information supplied by fellow police officials to litigation over how the balance should be struck in light of the facts of each case. Courts would need to draw a difficult line between simple negligence and “deliberate, reckless, or grossly negligent conduct,”^[31] or between “isolated” negligence and “recurring or systematic negligence.”^[32] Police officers could be tempted to avoid the dictates of the Amendment by dividing up investigations so that each officer can rely on a negligent report from a colleague rather than pursuing the investigations in a more direct fashion. Even without a conscious strategy of avoidance, coworkers would have less incentive to avoid supplying mistaken information that would trigger unconstitutional arrests or searches.^[33] The resulting regime would benefit neither the public, nor the police, nor the courts.

Robinson’s theory that a police agency may rely on its own negligence to avoid the exclusionary rule thus deviates from Herring’s suggestion that the negligence be not merely “isolated” (itself a contested proposition in Robinson) but “attenuated.”^[34] As I have emphasized, in Herring and in every other Supreme Court case applying Leon to admit evidence, the negligent misstatement was attenuated in the sense that a police officer reasonably relied on plausible information from an independent government agency.^[35] In Robinson, however, the correctional facility misinformed itself. To allow such unattenuated official misconduct to escape the exclusionary rule would open the courthouse door to widespread, negligent police misconduct in violation of the Fourth Amendment.

Indeed, Robinson is not the only sign of the general unraveling of the exclusionary rule that is occurring under Herring. In United States v. Song Ja Cha,^[36] for instance, the Court of Appeals for the Ninth Circuit assumed that Herring applies to an unreasonably long, warrantless seizure of a residence to allow officers time to obtain a warrant.^[37] The circuits also are divided over whether the good-faith exception extends to reliance on Supreme Court case law that later is modified or overruled.^[38]

At least four corrections for this confused state of affairs are possible. The first is overruling Herring. As Justices Breyer and Souter emphasized in a separate dissent in Herring, this would reinstate the easily administered rule that only good-faith reliance by police officers on the erroneous action of other branches of government can suspend the exclusionary rule.^[39] However, it seems improbable that a majority of the Supreme Court would embrace this position, which it so recently rejected and to which only the two justices subscribed.

Short of this unlikely step, a second solution would be to keep the Leon exception within its current confines of reliance by the police on generally accurate information or judgments from unrelated government officials. When a group of police officers in the same unit (or units who are working together as part of a combined investigation or common task) negligently produce inaccurate information, they should not be able to claim good-faith reliance—because they did not rely on any outside information and because they have the ability to control their own conduct. This different-department rule might seem like a fine point, but it is a reasonable construction of the references to the undefined “attenuation” in Herring.^[40]

Although this second strategy of confining a destabilizing case to its facts, or something close to them, is hardly a novel maneuver, more minor surgery still could be helpful. The third course of treatment would allow mistaken information or judgments within the same department to justify the admission of evidence seized in violation of the Fourth Amendment, but it would block Herring’s tolerance of negligent mistakes as a ground for admission. In same- or related-department situations, “good faith” should mean that the police took reasonable care to avoid infringing Fourth Amendment rights. Only if the government shows that it acted prudently rather than carelessly (or worse) should the exclusionary rule be blunted. The Herring Court rejected this demand, but it did so in the context of an interagency mistake.^[41] As applied to mistakes within a single agency, the good-faith standard should not be so toothless.

Finally, the fourth solution to fortify the good-faith standard could extend the previous suggestion to apply not merely to misinformation within the same agency, but to all cases of Fourth Amendment violations. Some judges and commentators have little sympathy for the exclusionary rule and would prefer to enable good-faith violations of the Constitution without incurring its costs. Even from this perspective, however, merely discarding the attenuation requirement and applying Herring’s expansive definition of good faith to every type of case may not be appropriate. Doing so “would leave most violations of the Fourth Amendment without a remedy [and] would create a regime in which courts would make most of their Fourth Amendment rulings in dictum if they decided Fourth Amendment questions at all.”^[42] A less drastic outcome would follow from reexamining Herring’s emphasis on police culpability. The good faith recognized in Leon as warranting an exception to the exclusionary rule should mean more than the absence of bad faith. If the exception is to be applied to all unreasonable searches or seizures, the state should have to demonstrate that the false information on which an officer relied was not the product of negligence or other culpable conduct.

Under any of these approaches, and in contrast to Robinson, a police agency should not be permitted to escape the century-old rule^[43] that “forbids the use of improperly obtained evidence at trial”^[44] by relying on its own, negligent mistakes. In Robinson, not a single justice of the California Supreme Court seemed to perceive that the court was crossing a line rather than routinely applying settled doctrine. This is not a step that should have been taken blindly or lightly. Exempting ordinary negligence within a single police agency from the exclusionary rule goes well beyond the good faith reliance on a judicial warrant that swayed the Court in Leon, and it moves the law dangerously close to a total unraveling of the exclusionary rule.

Claim and issue preclusion, however, evolve from valuable policy concerns as well, such as finality, efficiency, and fairness. Limiting the application of these doctrines in fair use cases has the potential to stifle the creativity of secondary authors—those individuals utilizing existing works in their creations under the fair use doctrine. Because such creations are valuable to the public, copyright law aims to preserve incentives among these secondary authors as well. This Comment proposes a modified application of claim and issue preclusion in cases of fair use, which balances the importance of incentivizing all creative authors while simultaneously preserving the important doctrinal goals of claim and issue preclusion.

The primary roadblock to recognizing independent meaning in the Press Clause is the definitional problem—who or what is the “press” in the First Amendment? Others have attempted to define the press, but the ubiquitous instinct toward constitutional overprotection tends to invite overly broad definitions that include potentially everyone. Proponents of these overinclusive definitions attempt to transfer our constitutionally overprotective approach from the Speech Clause to the Press Clause. The net result has been, ironically, fewer constitutional press rights rather than more.

This Article endeavors to break that cycle by arguing that the way to give long-overdue meaning to this important piece of constitutional text is to embrace press exceptionalism and a narrow definition of the press. By adopting an overly protective approach to the Press Clause, we have been sucked into a constitutional feedback loop: An expansive definition of the press means virtually complete overlap between press and speech and thus no meaningful way to interpret the Press Clause. Awakening the Press Clause, therefore, requires embracing a definition of the press that is sufficiently narrow. This Article furthermore submits that the definitional problem is manageable because line-drawing perfectionism is not required thanks to the fallback protections of the Speech Clause.

Consequently, the validity of an excluded applicant’s employment discrimination claim regrettably depends on a single factor or variable: the protected characteristic at issue. The “favored” characteristic (a Title VII characteristic) yields a viable claim, but the “disfavored” characteristic (an ADA disability) produces a losing claim.

This Article proposes a new approach—termed “informational paternalism”— that brings needed uniformity and consistency of legal protection in the area of applicant-specific paternalism. This middle-ground approach has two features: a blanket prohibition of applicant-specific paternalism, and a job-related risk notification requirement. Together, these two features are justified because they: (a) reflect a longstanding philosophy of both Congress and the Supreme Court that rejects an employer’s applicant-specific protective purpose as an unacceptable basis for excluding an applicant; (b) serve to fully advance federal antidiscrimination policy; and (c) embrace a philosophy shared by Congress and the Occupational Safety and Health Administration that seeks to protect workers by providing them with information relevant to their employment-related decisions (rather than by seizing their decisionmaking power).

The Need for a Research Culture in the Forensic Sciences by Jennifer Mnookin et al. is one of the first publications to minimize the blame game that has become so pervasive in evaluating forensic science. This article successfully provides a root cause assessment of the salient issues we face today and contains solutions that those who care about forensic science should consider.

In such situations, this Article argues, Rule 19 functions almost as an abstention doctrine, permitting courts to avoid decisions in cases that may raise sensitive intergovernmental or foreign-relations issues. This use of the rule is problematic for several reasons. It is not authorized by (or even discussed in) Rule 19’s text, and it appears at odds with the original purpose of Rule 19: to promote consolidated litigation of disputes, not to dispose of them entirely. Further, it permits the interests of the plaintiff—and the public interest in resolution of disputes—to be systematically slighted. Thus, although there may be situations in which an absent party’s sovereign immunity should be taken into account, courts have gone too far in their solicitude for absent sovereigns. This Article explores how this phenomenon has evolved and suggests ways in which courts’ analysis of Rule 19 factors should be modified to take account of the rule’s fundamental purposes.

Three common responses to evasion have serious deficits. Foregoing control of evasion is a mistake if large portions of an activity warranting regulation occur along (and move towards) the margins of a legal rule. Regulating through frequent iteration of narrow rules is costly and may leave law a step behind moving targets. Using broad standards inevitably leads to overbreadth, creating space for mischief in the form of excess enforcement discretion and undeserved sanctions. A fourth approach holds more promise and has eluded treatment in scholarship. Law can proceed more directly by using doctrine designed to identify the evasive actor. I argue that mental- state inquiry is the best way to do this; demonstrate that the law has long engaged in a version of this approach in its use of good faith doctrines; and conclude that a form of good faith doctrine could be further exploited to respond to evasion in criminal and corporate law.

Like Jonathan Zasloff, I support states’ efforts to use common law tort actions to address the effect that U.S. sources of greenhouse gases have on global climate change.^[1] Also like Zasloff, I believe such litigation constitutes a reasonable alternative to Congress’s failure to address this problem. Tort law provides the concepts necessary^[2] to address the liability of greenhouse gas contributors. In addition, litigation may trigger a political response^[3] to the cli­mate crisis. To paraphrase Zasloff, litigation is no more imperfect than the other proposed imperfect alternatives.^[4] But while we both belong to a minority of legal commentators who support common law climate litigation, Zasloff and I part company on a critical aspect of the litigation: the requested relief.

Zasloff argues that U.S. plaintiffs in climate tort cases should request dam­ages rather than the abatement of the defendant’s greenhouse gas emissions.^[5] He has criticized my suggestion that courts allow defendants to comply with such abatement orders through the use of emissions offsets procured from third parties.^[6] Zasloff further argues that the proper measure of the climate plaintiff’s damages from a given defendant is the carbon tax associated with the defen­dant’s total emissions. For example, Zasloff argues that the proper measure of California’s damages from a given coal-fired power plant’s history of greenhouse gas emissions is the portion of the plant’s total carbon tax represented by California’s portion of the total U.S. population.^[7]

The basic problem with Zasloff’s suggestion is that a carbon tax is a meas­ure of global damages from the emission of a ton of carbon dioxide and not a measure of a given plaintiff’s climate change–related losses. An optimal carbon tax reflects, on an average per ton basis, the price upon carbon emis­sions which ensures that the global damages resulting from such emissions do not exceed the economic benefits resulting from the same emissions.^[8] Applied to a given climate defendant, a carbon tax indicates the average global dam­ages attributable to each ton of the defendant’s emissions. Thus, a carbon tax fails to satisfy the threshold criteria for tort damages—compensating the plaintiff for its losses—and, more importantly, any tax collected by a U.S. climate plaintiff should be shared with all persons in the world.

Even if reduced to reflect the plaintiff’s fraction of the U.S. population when the plaintiff is a state, U.S. climate plaintiffs’ recovery of the total carbon tax associated with every ton of a defendant’s historic carbon emis­sions would vastly overcompensate U.S. plaintiffs. Considering that a defendant’s emissions contribute to the global buildup of greenhouse gas concentrations that causes anthropogenic climate change, persons residing in other parts of the world are just as entitled as U.S. plaintiffs to any carbon tax collected. To award the entire tax to a U.S. plaintiff threatens to “cash out” these other persons’ claim to compensation for the harm that they will continue to sustain from the historic emissions of greenhouse gases from U.S. sources.^[9]

The international justice implications of using a global carbon tax as a meas­ure of damages are an important reason for U.S. courts to limit themselves to awarding abatement relief in climate nuisance cases. While precedent would allow a court to require the total abatement of the defendant’s emissions,^[10] Zasloff’s idea of a carbon tax is an excellent metric for determining the defen­dant’s globally fair abatement level. The level of abatement corresponding to the level at which the defendant’s marginal abatement cost equals the optimal global carbon tax constitutes a reasonable approximation of the defendant’s fair share of the carbon reductions that will be required to avoid global cli­mate change damages. Thus, imposing abatement at the level of a carbon tax harmonizes the remedy in national climate change litigation with the global abatement that is needed without unfairly allocating the tax solely to U.S. plaintiffs. This remedy could be flexible so that a given defendant need not com­ply by actually abating its emissions but could instead satisfy the judgment by proffering third-party emissions-offset credits.

The debate over damages versus abatement relief has important ramifi­cations for the future viability of climate tort litigation. At the heart of the debate is the concern about what subglobal adjudication can realistically and fairly accomplish with respect to climate change. In our zeal to use the power of the courts and the common law to address climate change, especially in the wake of Congress’s inaction,^[11] it is important that we not lose sight of the global aspects of the climate change problem, especially when these global aspects have international justice implications.

As a final introductory note, climate litigation is likely to continue in the United States, at least so long as Congress fails to enact comprehensive climate legislation. This is true despite the legal uncertainty that has resulted from the U.S. Supreme Court’s decision to hear the industry’s appeal of the Second Circuit’s ruling in the flagship climate nuisance case Connecticut v. American Electric Power.^[12] Even the success of the industry respondents’ effort to dismiss the plaintiffs’ federal common law nuisance claim may only shift the litigation to state nuisance claims.^[13]

I. The Scope of Our Knowledge of the Climate Change Damages Attributable to a Given Defendant

Anthropogenic climate change is the alteration of the global climate system beyond natural variability, which scientists attribute to the unprece­dented buildup in global greenhouse gas emissions over the past century.^[14] The effects of climate change that damage human societies, such as rising sea levels and higher average surface land temperatures, flow from this global buildup.^[15] Greenhouse gas emissions from a given source—a coal-fired utility plant or an automobile—contribute to these aggregate global levels. Emis­sions of greenhouse gases mix well in the atmosphere.^[16] An array of models that integrate climate with economic systems can now project total global dam­ages attributable to various levels of world greenhouse gas emissions and their corresponding temperature increases. Although uncertain in many respects, such models can roughly correlate the amount of global damages resulting from temperature increases, plotting the approximate slope of the upward-trending global temperature–damages curve.^[17]

But while economists can estimate the global damages that result from aggregate world emissions of greenhouse gases, they have much trouble doing so for the damages sustained by a single plaintiff at the hands of one or even many individual sources of greenhouse gas emissions. This is not because the greenhouse gas emissions from an individual source cause no damage. This is true, but the connotation—that the proportionately small amount of greenhouse gases emitted by a single source causes no damages—is incorrect. Because the marginal damage curve slopes upward from zero damages, each ton of greenhouse gas emitted imposes some measure of damages. Indeed, we know that the world aggregate greenhouse gas emissions impose consid­erable damages and that each ton emitted contributes to this global total. More accurately, then, the difficulty in estimating the amount of a given plaintiff’s climate damages that are attributable to a given defendant’s greenhouse gas emissions is two-fold: (1) the indeterminacy of the marginal global damage attributable to the defendant’s emissions, and (2) the further difficulty of deter­mining the plaintiff’s proper allocation of global damages.

First, the upward slope of the marginal damage curve means that the dam­ages associated with the emission of any given ton of greenhouse gas will differ depending upon the concentration of greenhouse gases already in the atmos­phere. As shown in Figure 1, at a given point in time, the first ton of a greenhouse gas from anthropogenic sources added to natural background con­cen­trations of greenhouse gases, imposing the smallest amount of mar­ginal damages, while the last such ton added imposed the greatest measure of mar­ginal damages.^[18] We have no way of knowing, however, when the given emis­sions source emitted the greenhouse gases, and hence we cannot know whether the marginal damages attributable to a given defendant’s emissions are relatively small or large.

Figure 1. Marginal Costs of GHG Reductions and Marginal Damage From GHG Emissions^[19]

Thus, the more accurate characterization of the damages attributable to a single source of greenhouse gas emissions is not that the damages are zero but that their size is indeterminate.

Second, the climate damages attributable to any given source of green­house gas emissions are global in nature. These emissions contribute to a global buildup of greenhouse gas concentrations that is responsible for changes in weather patterns and climatic events, which in turn impose damages on persons and localities throughout the world. For example, greenhouse gas emissions from a West Virginia coal-fired utility plant owned by a defendant corpora­tion in a U.S. climate nuisance lawsuit contribute to global concentrations of greenhouse gases that increase mean surface temperatures; this increase causes the thermal expansion of the world’s oceans. This thermal expansion leads not only to the rise of the Atlantic Ocean, which damages the coast of Connecticut, the lead plaintiff in American Electric Power, but also to the rise of the Pacific Ocean, which threatens to submerge the small island nation of Tuvalu. The second problem inherent in a climate nuisance damages remedy, then, lies in properly determining what proportion of the global damages attributable to a given source’s greenhouse gas emissions to allocate to a single plaintiff, even one the size of a U.S. state that represents millions of persons.

A. Legal and Methodological Hurdles to a Damages Remedy in Climate Nuisance Lawsuits

As Zasloff recognizes, a plaintiff seeking damages in a common law climate lawsuit confronts an array of hurdles, both legal and methodological.^[20] Unfor­tunately, a carbon tax affords little help in overcoming these hurdles.

Assuming that the plaintiff can sue for damages and is not limited to a suit for abatement,^[21] the first hurdle is that courts usually calculate damages by reference to the plaintiff’s loss or harm, as opposed to the defendant’s con­duct.^[22] Accordingly, the plaintiffs that are seeking or have sought damages attributable to climate change can claim compensation for personal injuries or property losses attributable to weather or climatic events that they claim are caused by climate change. Hence, in Comer v. Murphy Oil USA,^[23] Mississippi Gulf Coast property owners claimed personal and property damages from Hurricane Katrina, which they allege was made more ferocious by the defen­dants’ emission of greenhouse gases.^[24] Similarly, the plaintiffs in Native Village of Kivalina v. Exxon Mobil Corp.^[25] are seeking to recoup the costs of relocating their village to higher land, a cost they claim they will have to incur in the future as a result of the defendants’ contributions to global warming, which is causing sea level rise.^[26] In seeking damages, these plaintiffs confront the prob­lem that scientists cannot say with any degree of certainty that a particular weather or climatic event was caused by the buildup of greenhouse gases resulting from anthropogenic emissions, as opposed to natural variability.^[27] The most that scientists can tell us is the likelihood that a given climatic trend, such as an increase in global average temperature or a given amount of sea level rise, is caused by human-generated emissions.^[28]

Unfortunately, as a measure of the harm imposed by the defendant, as opposed to the injury experienced by the plaintiff, a carbon tax does not fit the mold of a compensatory damage measure and hence does little to help the plaintiff establish a claim to damages. Zasloff nevertheless insists that a carbon tax can be used as a measure of the plaintiff’s losses if it is properly reduced.^[29] Zasloff suggests that a carbon tax be discounted twice, once to reflect the fact that the defendant’s greenhouse gas emissions represent a small propor­tion of the world’s total greenhouse gas emissions and a second time to reflect the pos­sibility that the plaintiff’s loss was caused by weather or climatic events driven by natural variability rather than anthropogenic climate change.^[30]

However reduced, a carbon tax is still a measure of the harm imposed by the defendant, as opposed to the loss sustained by the plaintiff. Additionally, this proposal suffers from the very defect Zasloff (rightfully) identified in an abatement remedy: the lack of a substantive metric by which to determine the ultimate level of such a tax. By how much should the carbon tax be dis­counted? How big is the risk that a particular hurricane, for example, increased in strength or that a particular wildfire began as a result of warmer tempera­tures attributable to a buildup of greenhouse gases? Scientists are beginning to estimate the amount of risk attributable to the sum total of human-caused greenhouse gas emissions within a given climatic event. However, this devel­opment is very new, and scientists are still far from being able to estimate the increased risk attributable to a single emissions source.^[31]

Finally, used as a measure of past damages, a carbon tax raises tricky meth­odological issues related to the correlation between rising marginal damages and rising greenhouse gas concentrations. A plaintiff’s total damages award will clearly increase as it goes further back in time in requesting damages for the defendant’s historic emissions.^[32] Yet the earlier the year for which damages are sought, the smaller the size of the per-ton carbon tax since the marginal cost of climate change damages is increasing over time because of increasing greenhouse gas concentrations.^[33] Thus, according to the very logic of a carbon tax, the size of a plaintiff’s past damages award based on such a tax will be a function not only of the size of the defendant’s emissions and the length of time for which the defendant can be held liable for its emissions, but also of the steepness of the slope of the global damages curve—a matter that is hotly debated.^[34]

Granted, damages awarded in common law cases do not always reflect the actual amount of harm sustained by the plaintiff. In many cases, the damages award simply reflects a legal convention.^[35] One could argue that, in a similar fashion, a court could develop a convention that uses the defendant’s historic emissions to measure a climate plaintiff’s damages. Based on its implica­tions for climate justice, however, I argue against such an approach in the next Subpart.

B. Who Should Receive the Carbon Tax? Considerations
of International Justice and Selfishness

Even if a court accepted a carbon tax applied to a defendant’s historic carbon emissions as an appropriate measure of a U.S. plaintiff’s losses attrib­utable to global climate change, the plaintiff may not be entitled to the whole tax. This is because a carbon tax reflects the sum total of the damages sustained from a ton of carbon by the world as a whole, not just the damages sus­tained solely by the plaintiff, even a plaintiff the size of a U.S. state. Assuming a carbon tax of thirty dollars per ton, for example, California is arguably not entitled to the full amount since it sustains only a fraction of the worldwide damages attributable to the ton of carbon that is reflected in this thirty-dollar figure. As a result, Zasloff cannot be correct when he states:

The initial damages/tax calculation would be the prorated per capita popu­lation share by state. If we say that the U.S. carbon tax should be $25 a ton, then we would take a source’s emissions, multiply them by the population percentage of a state, and arrive at the damages product. California’s population of a little more than thirty-nine million is about 12.2 percent of the total U.S. count.^[36]

For California’s share to equal 12.2 percent of the total tax collected, the defendant’s emissions must have only harmed the United States, which is of course not correct. The emissions from the defendants’ coal-fired electric plants in Connecticut v. American Electric Power,^[37] for example, contribute to global concentrations of greenhouse gases that are changing the earth’s climate, which in turn increases the likelihood of droughts in Africa, flooding in Asia, and rising sea levels on the California coast.^[38] To claim the whole tax for the United States (or for California to claim a proportion equivalent to its portion of the U.S. popu­lation) clearly overstates the United States’ (or California’s) true share of the damages. The damages endured by California from a ton of carbon dioxide emitted by a West Virginia power plant, for example, must be shared not just with the population residing in the other forty-nine states, but with the remaining 6.836 billion persons in the world.^[39]

One might argue that allowing the United States to collect the whole tax (and hence a proportional fraction of the total for a U.S. state) is fair in the sense that the United States has sustained damages from sources of greenhouse gas emissions in other countries for which it has not received compensa­tion. For example, coal-fired power plants in China contribute just as much to climate change as similar U.S. plants, and yet Americans are not col­lecting a carbon tax from these Chinese counterparts. Hence, one could argue that in lieu of each jurisdiction collecting the fraction of its damages attrib­utable to all sources of carbon emissions worldwide, allowing each country to collect the full measure of the damages imposed by the emissions sources within its borders is a satisfactory solution. If all countries had equal per capita emissions, then a country’s collection of a pro rata share of damages from every source in the world and the collection of the whole of the damages imposed by one’s domes­tic emis­sions sources would be the same. Under this scenario, there would be nothing wrong with the United States collecting all of the damages attributable to its own carbon emission sources. However, countries have vastly different per capita emis­sions.^[40] Because the United States has one of the largest per capita emis­sions,^[41] a country-by-country approach works to the advantage of U.S. plaintiffs and to the detriment of residents of most other nations, espe­cially devel­oping countries.

The potential for such lopsided climate damages recovery should be of concern to the United States for two reasons. First, the United States should be concerned about the fundamental unfairness of allowing U.S. plaintiffs to recover the whole of the damages shared by the world that are attributable to U.S. sources’ past emissions. This is especially the case when the benefits of these emissions flowed most directly to U.S. residents—in the form of eco­nomic prosperity—and only indirectly to the residents of developing countries.^[42] While residents of developing countries may not have a realistic basis for recovering payments for their share of the damages in a court of law, their damages claim has viability in the form of adaptation funding from devel­oped countries within the context of international climate negotiations. Indeed, the damages claim for the historic emissions from developed countries is a primary basis for lesser developed countries’ claim for adaptation funding from developed nations.^[43] For some commentators, this equitable claim is the basis for transferring money from developed to developing countries under several international legal instruments, among them the Least Developed Countries Fund, the Special Climate Change Fund, and the Adaptation Fund under the Kyoto Protocol.^[44] To allow U.S. plaintiffs to recover all of these historic dam­ages by collecting 100 percent of the carbon tax associated with past emissions threatens to cash out developing countries’ claims.^[45]

Second, the United States should also be concerned about the country-by-country approach for purely self-interested reasons as well. The United States is responsible for a large fraction of the damages attributable to current emis­sions of greenhouse gases as a result of the disproportionate size of its emissions vis-à-vis other countries.^[46] But this is changing as the relative size of the United States’ share of global greenhouse gas emissions dwindles.^[47] In the future, the United States will have the greater claim to damages from climate change because its emissions will constitute only a small fraction of total global emissions given the growth of rapidly industrializing countries such as China and India.^[48] Hence, today’s precedent under the country-by-country approach, which allows U.S. plaintiffs to recover more than their fair share of past climate damages by per­mitting them to reap 100 percent of the global damages attributable to U.S. emissions sources, will only work against U.S. plaintiffs in the future when the total climate damages sustained by U.S. plaintiffs will exceed what they can collect in lawsuits filed solely against U.S. emitters.

II. A Better Idea: Use a Carbon Tax to Determine the Level of Abatement Required

One might assume that injunctive relief faces the same legal and justice barriers as a damages remedy: the inability to link the particular harms sus­tained by a climate plaintiff to a particular defendant’s greenhouse gas emissions. In this Part, I argue that such is not the case. Under a capacious understanding of their equitable powers, courts have imposed injunctions in the analogous situation in which the defendant is clearly contributing to an aggregate harm, but the exact scope of that contribution is unknown. Furthermore, because abate­ment is prospective, it does not result in overcompensating U.S. climate plaintiffs to the potential detriment of foreign climate plaintiffs. In this context, Zasloff’s reference to a carbon tax is extremely helpful as it supplies a reasonable metric for determining the level of abatement that a court might require.

In terms of doctrine, U.S. courts have applied the English common law’s com­bined effects rule to order abatement of conduct contributing to a nui­sance despite the unavailability of damages.^[49] The combined effects rule holds that each individual is liable for the combined effect of all when the combined effect of many persons’ actions constitutes a nuisance but the effect of any individual’s actions would not constitute a nuisance.^[50] Thus, in the Maryland case of Woodyear v. Schaeffer,^[51] the plaintiff-owner of a large flour mill sued a slaugh­terhouse in nuisance, seeking relief for the defendant’s contribution of approximately fifteen buckets of blood per week discharged to the stream above the plaintiff’s mill.^[52] Given the large number of other establishments, including other slaughterhouses, that used the same waterway to dispose of their sewerage, the court found that, although collectively the pollution sources imposed substantial harm, each contributor “standing alone, might amount to little or nothing.”^[53] As a result, “it would be difficult to apportion the damage, or say how far any one may have contributed to the result, and so damages would likely be but nominal.”^[54] Nevertheless, the court imposed a total injunction on the defendant, holding that equity should prevent a nuisance when damages are inadequate compensation.^[55]

As Woodyear and other cases demonstrate,^[56] precedent exists for a court to order the total abatement of the defendant’s contribution to a public nui­sance. In these cases, the court enjoined the defendant from contributing even a proportionately miniscule fraction of a much larger harm resulting from the combination of many persons’ actions.

If an order for the total abatement of a small contribution to a much larger pub­lic nuisance can be justified, something less than total abatement can be jus­ti­fied as well. In the context of climate change, it is reasonable that the “something less” be the abatement level corresponding to the defendant’s pay­ment of an optimal international carbon tax. Although Zasloff’s carbon tax suggestion is problematic when used as the basis for U.S. plaintiffs’ recovery of climate damages, it offers a reasonable level for the defendant’s prospective abatement obligation. The point at which a defendant’s marginal costs equal the optimal carbon tax represents a fair per source allocation of the global burden to reduce greenhouse gas emissions. Zasloff criticizes my earlier support for an abatement remedy based in part on my failure to suggest a substantive metric that a court might use to determine the level of reductions necessary for a given source.^[57] Interestingly enough, Zasloff’s idea of a carbon tax is an excellent candidate for this metric.

The implementation of the carbon-tax-as-abatement level could also afford the defendant-emitter maximum flexibility for compliance. Zasloff contends that injunctive relief represents specific deterrence,^[58] which hamstrings the defen­dant by dictating exactly what it must do to comply with a court order. In contrast, he argues that damages represent general deterrence,^[59] which gives the defendant flexibility in complying with the court’s order.^[60] For instance, Zasloff mentions that defendants subject to a damages judgment need simply “write a check,” while defendants subject to orders for injunctive relief must perform particular tasks.^[61] But this need not be the case. As I have suggested pre­vi­ously, judges could allow defendants to comply with an abatement order through the proffer of third-party offset credits. Such credits, or guarantees of emissions reduc­tions, could substitute for emissions reductions at the defen­dant’s own facili­ties.^[62] Under this scenario, the defendant might comply with an injunction by simply writing a check.

Used merely as a measure for the level of abatement, a carbon tax would not result in a U.S. court’s overcompensation of a few lucky plaintiffs or the overcompensation of anyone. Instead, an institution that more fairly represents the interest of all persons in the world subject to climate damages could allocate compensation claims. Whether such an institution is the framework for future international climate negotiations or, as others have suggested, an interna­tional climate compensation tribunal,^[63] it is important that the chosen institution reflect the interests of all damaged parties, both past and future.

Not only is there precedent for using abatement to address the real but unknow­able harm imposed by a small contributor to a much larger aggregate harm, but abatement relief avoids the international justice problems caused by using a carbon tax to compute a U.S. plaintiff’s damages from the historic greenhouse gas emissions of U.S. sources. Quite simply, abatement achieves the same reduction in the defendant’s emissions without paying the plaintiff for past emissions that exceed its fair share of the global damages attributable to such emissions. In terms of the actual level of emissions achieved, the rational regulator seeking to achieve efficient emissions levels obtains the same result whether she regulates a firm’s emissions via a Pigouvian tax^[64] or by specifying a particular level of abatement. The rational emitter will reduce emissions up to the point that the marginal price of further abatement exceeds the marginal damage cost.^[65]

Conclusion

As Zasloff recognizes, one of the benefits of U.S. climate tort litigation is its potential to get the political process to respond to the climate crisis. Damages might be the remedy of choice in such litigation, given the poten­tially greater deterrence value of damages vis-à-vis injunctive relief. Large greenhouse gas emitters that must pay damages to U.S. plaintiffs for past emis­sions in the amount of an optimal carbon tax might support comprehensive climate change regulation, perhaps in exchange for congressional preemption of liability for damages. Such deterrence must be weighed against the possibility that the award could unfairly enrich U.S. plaintiffs at the expense of persons living in other parts of the world who also sustained injuries from the defen­dant’s emissions. To avoid such a result, U.S. courts should limit their relief to prospective injunctive relief. In that regard, the level of abatement that a defendant would adopt if it were compelled to pay an optimal carbon tax consti­tutes a globally fair measure of the defendant’s abatement obligation. Climate damages are then best left to an international institution that can more fairly adjudicate the competing claims of the world’s population to the damages attrib­utable to a given source’s greenhouse gas emissions.^[66]