Copyright (c) 2009 All rights reserved. http://works.bepress.com/lloyd_anderson Recent documents in Lloyd C. Anderson en-us Sun, 31 May 2009 08:36:33 PDT 3600 http://works.bepress.com/lloyd_anderson/15 http://works.bepress.com/lloyd_anderson/15 Wed, 23 Jan 2008 10:51:28 PST The quest for social justice in America requires creative approaches to the enforcement of basic legal rights. As the Supreme Court continues to diminish the role of the federal courts as a catalyst for reform, the need for innovative solutions has become increasingly urgent. The consent decree, a written settlement formulated by the parties and approved by the judge, is one such innovative alternative. The parties themselves are the primary catalysts for change in this process. Lloyd C. Anderson Consent Decrees http://works.bepress.com/lloyd_anderson/14 http://works.bepress.com/lloyd_anderson/14 Wed, 23 Jan 2008 10:37:40 PST Persons seeking structural reform of powerful institutions have increasingly used public law litigation' in their continuing and multi-faceted struggle to realize the ideal of human dignity in the administration of justice. Such complex civil litigation is invariably emotional and can polarize whole communities: the plaintiffs raise grievances essential to their economic and spiritual welfare, while the defendants see such suits as affronts to their carefully-considered, even-handed professional and administrative judgments. In the ensuing all-out legal warfare, the parties may expend extravagant amounts of money and time before the issues are finally decided. Lloyd C. Anderson Consent Decrees http://works.bepress.com/lloyd_anderson/13 http://works.bepress.com/lloyd_anderson/13 Wed, 23 Jan 2008 10:34:44 PST Law students ought to graduate from law school with at least a minimum degree of professional competence. They should be able to begin the practice of law with a rudimentary knowledge of what a civil litigator must do to represent a client competently.8 Traditional legal education teaches by providing a vicarious experience: the students read judicial opinions and analyze the legal rules and principles upon which a decision is based. Properly done, this method does an admirable job of teaching legal concepts and developing essential analytical skills. All too often, however, law students armed with these concepts and skills enter the practice of law and find it an alien world in which they feel ill-equipped to represent a client competently in civil litigation. Lloyd C. Anderson Legal Education http://works.bepress.com/lloyd_anderson/12 http://works.bepress.com/lloyd_anderson/12 Wed, 23 Jan 2008 10:14:25 PST Courts in the United States wield enormous power over other American institutions. In recent years, federal judges have used this power to decree, often with the consent of the parties, extensive structural reform in such diverse areas as employment practices, prison conditions, environmental cleanup, and the treatment of mentally ill or retarded persons. These court orders often affect the daily lives of ordinary citizens, provoking heated debate and passionate rhetoric within the community, ranging from claims that federal courts carry the moral mandate of the Almighty to angry cries that unelected federal judges are ruining local institutions. Critics and advocates of such consent decrees agree, however, on one point: Judges are powerful. Lloyd C. Anderson Consent Decrees http://works.bepress.com/lloyd_anderson/11 http://works.bepress.com/lloyd_anderson/11 Wed, 23 Jan 2008 10:10:50 PST This article explores the arguments concerning the propriety of the district court's role in Microsoft and proposes a new and more appropriate role for courts confronted with similar problems. Part II reviews the history of abuse in antitrust consent decrees that prompted Congress to enact the Tunney Act and discusses the Act's provisions for judicial review of such decrees. Part III discusses the cases construing the scope of judicial review under the Act and the courts' role in approving proposed decrees, focusing especially on the breakup of the AT&T monopoly. Part IV analyzes the Microsoft case in detail and argues that while Judge Sporkin clearly exceeded the proper scope of judicial review, the court of appeals has formulated an excessively narrow standard of judicial review. Part V addresses the broader policy questions presented by cases like Microsoft, such as whether the Tunney Act procedure is working well in achieving its goals and what the proper scope of judicial review should be. The article argues that judicial review should be flexible, based upon factors such as the extent to which the decree achieves the relief sought in the complaint, the size of the defendant and complexity of the case, history of abuse, the extent of litigation prior to settlement, evidence of undue political influence, and the impact of the decree on third parties, the economy, and the public at large. Lloyd C. Anderson Consent Decrees http://works.bepress.com/lloyd_anderson/10 http://works.bepress.com/lloyd_anderson/10 Wed, 23 Jan 2008 09:52:03 PST In 1949, the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp. created the collateral order doctrine of federal appellate jurisdiction. Congress has established the statutory requirement that a litigant has the right to appeal only a "final decision," which the Court has defined generally as a final judgment that "ends the litigation on the merits." Over the years, however, the Court has crafted a number of exceptions to the final judgment rule by way of artful construction of the statutory term "final decision." The Court in Cohen construed "final decision" to permit immediate appeal of decisions that did not end the litigation but that conclusively determined claimed rights that were separate from the merits and that were effectively unreviewable after final judgment. The Court described this new doctrine as applying only to a "small class" of decisions. For some years this was an accurate description; the collateral order doctrine was confined to very narrow circumstances in relatively few cases.Beginning in the early 1960s, however, the Court began the process of expanding the collateral order doctrine, culminating in the 1985 decision of Mitchell v. Forsyth. This doctrinal expansion has been replete with inconsistent opinions causing unacceptable confusion over which nonfinal rulings are appealable. This results in delay and disruption of ordinary trial processes and the expenditure of appellate resources. One Justice finally was led to complain that "our finality jurisprudence is sorely in need of limiting principles." The judges of the federal circuits joined the outcry, charging that the newly expanded, but inconsistent, collateral order doctrine had caused a "litigation explosion," fostered "regrettable expense and delay," and led judges into a "maze" of confused and contradictory doctrinal minutiae. In 1988, amid mounting concern over congestion, delay, and expense in the federal court system, including dissatisfaction with the collateral order doctrine, Congress created a Federal Courts Study Committee composed of judges, attorneys, and members of Congress. The committee submitted its report to Congress in 1990. One of its many recommendations was to authorize the Supreme Court to promulgate rules clarifying which decisions should be characterized as final for purposes of appellate jurisdiction. Congress promptly passed legislation authorizing the Court to do so. Seven years have since passed and no rules for clarifying which decisions should be characterized as final have yet been proposed, much less adopted. A proposal to address the problems created by the final judgment rule, including the collateral order doctrine, is not even on the agenda of the Advisory Committee for the Federal Rules of Appellate Procedure. Why has this rulemaking authority remained dormant for so long, with no activity in sight, and what, if anything, should be done?Part I of this Article gives a brief overview of the statutory basis for federal appellate jurisdiction and describes the early formulation of the collateral order doctrine from its genesis in Cohen through the narrow and infrequent applications of Cohen in the decades immediately thereafter. Part II provides a detailed narrative of the expansion of the collateral order doctrine, from its roots in a 1963 decision, Construction Laborers v. Curry, to its culmination in 1985 in Mitchell, followed by calls for reform in the late 1980s. Part III describes the problems, particularly associated with the collateral order doctrine, that led Congress to grant the Supreme Court rulemaking authority to clarify which decisions are sufficiently final to confer appellate jurisdiction. Part IV evaluates the Court's recent collateral order jurisprudence and contends that the problems-explosion of purely procedural litigation over what orders are appealable-have only gotten worse, particularly in the area of qualified immunity. Part V proposes four alternative remedies: the Court should either return to the narrow collateral order doctrine of Cohen; candidly recognize that its current doctrine is best described as a flexible, multifactor test closely resembling a doctrine of discretionary interlocutory appeal; overrule the Forsyth decision that has spawned the most procedural litigation; or promulgate a new rule permitting only one qualified immunity appeal per case. Lloyd C. Anderson Jurisprudence http://works.bepress.com/lloyd_anderson/9 http://works.bepress.com/lloyd_anderson/9 Wed, 23 Jan 2008 09:32:38 PST In this Article, Professor Lloyd Anderson examines the recent decision M.L.B. v. S.L.J., in which the United States Supreme Court held that due process and equal protection converge to require that states cannot require indigent parents who seek to appeal decisions terminating their parental rights to pay court costs they cannot afford. Noting that this decision expands the constitutional right of cost-free appeal from criminal to civil cases for the first time, Professor Anderson discusses the characteristics a civil case should have in order to qualify for such a right. Professor Anderson proposes a number of other civil cases, primarily those in which a fundamental right is at stake, in which poor people should also have a constitutional right to appeal without payment of court costs. Lloyd C. Anderson Jurisprudence http://works.bepress.com/lloyd_anderson/8 http://works.bepress.com/lloyd_anderson/8 Wed, 23 Jan 2008 07:50:13 PST People negotiate agreements "in the shadow of the law," whether in the private ordering of affairs such as drafting contracts or in the public forum of settling lawsuits. A reverse phenomenon, however, has gone largely unnoticed: judges occasionally declare law in the shadow of negotiated settlements. In interpreting the terms of a consent decree when the parties themselves cannot agree on what obligations such terms impose, the judge may determine that both the words and the parties' own intentions are so ambiguous that the words must be interpreted in light of the substantive law that gave rise to the plaintiffs' claim. This writer has previously contended that the meaning of an ambiguous term should be determined, in part, "by reference to the constitutional or statutory rights sought to be vindicated in the litigation." Even if the law is somewhat uncertain, part of the judge's interpretive effort should be to determine which interpretation "will best serve the policies of the relevant law." It appears that the federal courts, at least, have adopted this position.This article explores the history of federal judicial interpretation of consent decrees and advocates a restrained approach to interpreting ambiguous settlement terms in light of the underlying substantive law. The proposed approach does not eliminate such a method of interpretation, but avoids the misguided effort of the D.C. Circuit in Microsoft I. Part I reviews the standards for interpretation of consent decrees that have emerged in the federal courts over the past three decades and sets forth a model of interpretation that is consistent with the emergent caselaw. Part II examines the problem of interpretation that arose in Microsoft I and analyzes the difficulties posed by the D.C. Circuit's declaration of substantive antitrust law in that case. Part III discusses the policy considerations that should be weighed in determining the extent to which judges should declare law "in the shadow of" negotiation. The Conclusion argues that it is appropriate for courts to interpret ambiguous terms in consent decrees in light of underlying substantive law if other extrinsic evidence of the parties' intent surrounding the negotiation of the terms does not clearly resolve the issue. If the issue of law is not properly before the court, however, or if the law is not reasonably clear, courts should not decide what the law is, but instead should interpret ambiguous terms based solely on other extrinsic evidence of the parties' intent. Furthermore, if the law is clear, the court should follow it rather than decide what it thinks the law should be. Lloyd C. Anderson Consent Decrees http://works.bepress.com/lloyd_anderson/7 http://works.bepress.com/lloyd_anderson/7 Wed, 23 Jan 2008 07:37:18 PST Lloyd C. Anderson Prison Reform http://works.bepress.com/lloyd_anderson/6 http://works.bepress.com/lloyd_anderson/6 Wed, 23 Jan 2008 07:13:57 PST A series of decisions by the U.S. Supreme Court in the past decade concerning Congress's power to regulate the jurisdiction of the federal courts requires a fresh look at the extent to which the Constitution limits congressional authority to strip the federal courts of jurisdiction and to direct the exercise of existing jurisdiction. Nearly half a century ago, Professor Henry Hart raised the question whether conferring upon Congress unlimited control of judicial jurisdiction is consistent with the rule of law and government under a written constitution. With respect to legislation eliminating jurisdiction, Hart expressed the view that legislative exceptions to the Supreme Court's Article III appellate jurisdiction "must not be such as will destroy the essential role of the Supreme Court in the constitutional plan," whereas Congress has plenary, unlimited power to wrest jurisdiction from the inferior federal courts. On the distinct issue of Congress's power to direct judges to exercise existing jurisdiction in a particular manner, Hart proposed that Congress cannot eliminate all judicial authority to afford any remedy for particular rights; so long as it leaves open some remedy, however, the Constitution imposes no barrier to Congress's freedom to prohibit those remedies it deems undesirable. Hart also asserted that Congress does not have unlimited power to order a court how to decide a case, indicating that Congress cannot direct a result contrary to judicial interpretation of the Constitution. Hart's theses gained new prominence in the 1980s when opponents of controversial Supreme Court decisions on school prayer, abortion, school desegregation, and the military draft introduced bills either stripping the federal courts of jurisdiction over such cases, or prohibiting the use of certain remedies. Such proposed legislation sparked a fierce academic debate over congressional power to regulate jurisdiction. Professor Lawrence Sager, for example, argued that such legislation was unconstitutional because it prevented the vindication of substantive constitutional rights. While all of these bills died in Congress, the academic debate continued to rage for a decade. Some eventually expressed frustration with the "unending" nature of the debate, characterizing it as lacking any practical value once the jurisdiction-stripping bills expired, 10 and "choking on redundancy." The critics of the debate, however, were soon proven wrongby the Supreme Court. In Felker v. Turpin and Reno v. American-Arab Anti-Discrimination Committee, the Court wrestled with the age-old question of Congress's power to eliminate federal court jurisdiction of certain types of cases. In Felker, the Court upheld a provision depriving it of appellate jurisdiction over the dismissal of a "second or successive" habeas corpus petition, on the ground that Congress had not deprived it of all jurisdiction because the Court retained original jurisdiction over such cases. In Reno, the Court held that legislation severely restricting judicial review of alien deportation proceedings was constitutional because Congress had not eliminated all such judicial review. The Court in both cases left unresolved the overriding question presented by the jurisdiction-stripping bills of the early 1980s-whether Congress has the power to completely obliterate all jurisdiction over certain types of cases. In three other cases, there arose the recurring issue of Congress's power to direct the manner in which federal courts exercise their existing jurisdiction. In Robertson v. Seattle Audubon Society and Miller v. French, the Court ruled that Congress has the power to dictate decisions in pending cases so long as it alters the underlying substantive law. In Plaut v. Spendthrift Farm, however, the Court imposed a new limitation on the power to regulate jurisdiction, ruling that a congressional attempt to direct the reopening of final judgments violates the doctrine of separation of powers. The debate is thus not academic at all. Congressional hostility to some federal court decisions appears to be a fact of American political life. Since Congress cannot directly overrule a judicial decision interpreting the Constitution, members of Congress engage in periodic attempts to restrict judicial jurisdiction as a means of reversing the effects of disfavored constitutional decisions. The provisions of Article III, Section 1 conferring appellate jurisdiction on the Supreme Court, subject to "Exceptions and Regulations" created by Congress, and granting power to Congress to "ordain and establish" lower federal courts represent a compromise at the Constitutional Convention engineered by James Madison. It was designed to strike a proper balance between the need for an independent federal judiciary to enforce supreme federal law and the competing need to ensure political control over the judiciary. These recent decisions call into question whether the Court has maintained a proper balance between the competing needs for political control over an unelected judiciary and for the rule of law by an independent judiciary.Part I of this article will discuss the history of congressional control of jurisdiction and the theses of Professor Hart. Part II will analyze the academic debate that arose from the jurisdiction-stripping proposals of the early 1980s. Part III will evaluate the quintet of cases decided in the past decade. The article concludes that, while Felker, Reno, Plaut and Robertson were correctly decided and reflect a proper compromise between majoritarian rule and judicial independence, the decision in Miller-upholding the automatic stay provision of the Prison Litigation Reform Act (PLRA)-is wrong and constitutes a severe danger to the long-established and healthy compromise between the competing values of political control of the judicial branch and judicial guarantees of the supremacy of federal law. Lloyd C. Anderson Jurisprudence