Before I kick this up to the next level, the “global” level, I should probably say a few words about my previous post, for those of you who didn’t go to law school.
I try to make a case for the word “develop” over the word “interpret” for what it is that judges and lawyers do. A law professor would dismiss this immediately for my lack of academic standing and structures: there’s not a case citation to be seen in that post. Since gathering case citations is what I do for a living, one might even ask me why I didn’t bother. There are several reasons, some peculiar to me but others common to everyone reasonably well-informed about the law.
Legal citations ultimately go to “cases”, opinions by appellate judges. Cases have a lot to recommend them as sources, but they aren’t science. There was a movement in the 19th century to make law into a science by using “cases” as the empirical data. That was stunningly naïve but it had an effect on the way law is taught which still carries forward today: the casebook method pioneered by Christopher Columbus Langdell when he was dean of the Harvard Law School from 1870-1895. Using the casebook method, law students read specific cases, discuss them, and make inferences about the general state of the law. It is now very widespread, but often side-by-side with what I call the “outline” method: memorizing outlines of important points of law to be regurgitated on law school exams and ultimately on the bar exam.
The advantages of casebooks appear mostly from the disadvantages of outlines. In an effort to remain general, outlines tend to abstract from, and become irrelevant to, the messy reality of real local law. Take, for example, the criminal law. What the criminal law “really” is at any given moment in any particular place depends entirely on what the legislature in that jurisdiction says it is. What law students study for the bar exam, however, is something called the “common law of crimes” which is a distilled version of British criminal law from the 1700s. This is no longer the criminal law in any part of the world, not even Britain, but it has influenced law throughout the English-speaking world. Most part of the English-speaking legal world, for example, maintain the distinction between “felony” and “misdemeanor”, but have rejected the original meaning: a felony was a capital crime for which the sentence was death by hanging. (Now, in the United States, a “felony” is usually defined as a crime for which the maximum sentence is a year or longer in prison).
The common law of crimes is an excellent teaching tool, because it teaches students to break down crimes into “elements”. The “elements” of burglary were “breaking into a dwelling place at night”. If the facts involve walking into (not breaking into) a commercial establishment (not a dwelling) during the day (not a night), then its not “burglary”, it has to be called something else (probably “larceny”). If, on the other hand, the facts did involve breaking into a dwelling at night, but nothing was stolen, it’s still burglary.
This is not the law where I live. New Mexico has revised by statute the common law elements: “burglary” any unauthorized entry (not just “breaking”) any structure (not just dwelling, and also entry into vehicles) and any time, day or night. What makes it “burglary” under current statutory law is not the common law elements but the intent to commit a felony or theft therein. Thus if someone reaches into your open car window and steals your camera, that’s an auto burglary, though it wouldn’t be a burglary at all under the common law.
(Why not just call it “larceny” then? Because “burglary” suggests not only taking your stuff but also a violation of your personal space, an additional affront to the public peace, which should entail some additional punishment.)
Thus, given a description of the facts of an alleged “burglary”, law students studying for the bar exam and real lawyers in the criminal system would be looking for entirely different things. The students would be looking for a “breaking”, “dwelling” and “night”, while the real lawyers ignore all that and focus on evidence of unauthorized entry and felonious intent, much more broadly defined.
The reason we stick with the “common law of crimes” rather than test on real law is to make legal education portable from state-to-state: I can go to law school in New York or New Mexico and still hope to pass the bar exam in either state. But it has the rather obvious flaw of being divorced from the reality of actual practice. Dean Langdell at Harvard came up with the ingenious solution of having students discuss the opinions of judges applying real law to real cases. This tends to be much more like what lawyers actually do.
The problem with the casebook method from an intellectual perspective, however, is that judges write these opinions. Judges are only human and have human biases and their opinions are just that: not evidence, let alone empirically established fact. My law professors exposed me to an excellent book on this topic: John T. Noonan, Jr.’s Persons and Masks of the Law. Every law student forced to endure reading the Palsgraf opinions in their first year Torts class should also read this book, which exposes how the famous judges writing in the Palsgraf case abstracted from and (inadvertently) falsified the real facts of that case.
The type of person who would read about these factual distortions in a famous case and throw up their hands in despair and exclaim “It’s all a pack of lies, lies, lies!” tends to get weeded out before law school. Even the worst law students and lawyers see something like that as a challenge: to sort out the true from the false. On the other hand, people do that with religion all the time. They find contradictions in the Bible (not hard to do, really) and then declare that God does not exist and reject the entire edifice of Judeo-Christian morality.
There came a moment for me, however, when I had a “lies, lies, lies” epiphany which has colored how I view jurisprudence ever since. Please excuse the “war story” here, but I think it helps.
My client was a volunteer firefighter who had been denied State-provided retirement benefits because he was “too old” when he began his firefighting career: 46. State law at the time simply denied retirement benefits for anyone over 45 when they were first certified as a firefighter. Both my client and I knew vaguely that we have in this country laws against age discrimination, so we figured this was wrong. A little bit of research confirmed that. Federal law allowed some “age discrimination” in retirement benefits, but only on the basis of cost (providing retirement benefits to older workers is more expensive because they contribute less over the course of their shorter careers). A flat-out ban based on age, which is what we had here in New Mexico at the time (it’s since been repealed) violated federal law.
Now let me take a page from Noonan and talk about my client. Generally speaking, volunteer firefighters are an exemplary bunch. They need just as much training and bravery to fight fires as the professional firefighters, but they do it for no pay and somehow fit it into their lives when they aren’t working. James Gill was not the kind of guy who just joins up to hang out at the fire station and chew tobacco and talk politics: he was very active in his department in Hondo, New Mexico, and served as its chief for many years. While I never met the man in person, I talked with him over the phone for many an hour and I became firmly convinced that I should fight to get him his $100 a month benefit, because he deserved it, just as much as any man who volunteers at age 20, 30 or 40. I was also intuitively certain that, given the amount of money involved and the rather well-funded plan created by the Legislature, that no one would ever come forward with the evidence of cost-differential which under federal law would justify denying my client this meagre benefit.
So I had a clear case of State law violating federal law, the question became what to do about it. In contemplating the options available, I ran smack into this thing called “sovereign immunity” which bars lawsuits for money damages against States. At this point I will jump over years of litigation and appeals and go straight to the final decision by my Supreme Court: “sovereign immunity” prevented me from suing the State of New Mexico for the past benefits lost, but not from seeking future benefits.
You can find this decision by searching for “Gill” and “PERA” on the internet, but what you won’t find there is the stuff I just told you about James Gill (i.e. the real person involved in this real life case) nor will it tell you the upshot of the case: how did it turn out? It turned out like this: the State paid me about $40,000 in attorneys fees (which was a bargain for them, let me tell you) and agreed to start paying Mr. Gill his benefits. Now a sharp law student might immediately ask: if you can’t collect money from the State because of “sovereign immunity”, how did they end up paying you $40,000? This is why I said earlier that the common law of crimes was an excellent teaching tool. Attorney’s fees aren’t “damages”, and neither is an injunction ordering the State to start paying Mr. Gill’s benefits, just like breaking into a dwelling during the day wasn’t “burglary”.
Still, I found it somewhat distressing, throughout the many years of litigation over “sovereign immunity”, that this doctrine allowed the State to get away with not paying Mr. Gill’s retirement benefits. I could not punish them for their intransigence by hitting them with a bill for past, lost benefits. And even though it wasn’t much of a benefit, they fought me so long and so hard (even tried petitioning the United States Supreme Court for review) so it amounted to something substantial by the end.
For this I had to become somewhat of an expert on sovereign immunity, a very strange doctrine which goes back to the chaos in Europe during the Dark Ages. In those days you could raise an army and conquer a chunk of territory, like William did in 1066, and thereafter you owned it, and everything and everyone in it, as William ended up owning some of England and France. You could then parcel out pieces of it to your best buddies. They became “earls” or whatnot and they then owned their chunk of land and everything and everyone in it, provided only that if some other asshat decided to take the land from William, your king, or the people there decided they didn’t like being owned by William you had to raise an army and help him fight them off or put them down. This was called “feudalism” and while many of the more extreme aspects of monarchical “ownership” of the people had been whittled away by often bloody assertions of “rights”, one thing remained: you couldn’t sue the King. This made some sense because the whole court system had been instituted by kings to resolve disputes between subjects, and King made the law and ultimately decided what was right and wrong (or delegated that to courts or parliaments). Lawyers, being the idiots they are, coined the phrase “the King can do no wrong” which, while reflecting the reality that whoever makes the law can just change it to suit himself, goes against mountains of evidence that Kings wrong people all the time.
Fast forward 700 years to America where William’s not-very-direct descendant George the Third had just been chased out of his former colonies by the people, with the help of another of William’s not-very-direct descendants, the King of France. The question then became (for the new States had a lot of war debts to pay) whether we would continue to maintain the fiction that “the King can do no wrong”. Here we had just fought a war because of the wrongs the King and his delegates had inflicted upon the colonists: were we going to keep saying “the King can do no wrong”?
The first judges to take a crack at the question said “No.” That was the Supreme Court in 1793 in the case of Chisolm v. Georgia. Sovereign immunity was inconsistent with the republican values of our new nation. This horrified politicians up and down the coast, who could foresee getting sued for a lot of war debt they simply could not afford to pay. No sooner was the ink dry on the first ten Amendments to the Constitution (the Bill of Rights) when they ratified another, the Eleventh, which reflected a compromise: States could not be sued for money damages in the federal courts when they had jurisdiction based solely on “diversity of citizenship” (the plaintiff was not a citizen of the State being sued). So, a banker from New York could not walk into federal court in Georgia and sue that State: he had to file his lawsuit in the Georgia state courts which, presumably, would be more sympathetic to Georgia’s claim that it had no money to pay the debt.
This compromise was eroded and destroyed in two increments, approximately 100 years apart. First there was the 1890s-era decision that the Eleventh Amendment, despite what its text explicitly says, applied to all kinds of jurisdiction in federal courts, not just “diversity”. Then in 1999 the Supreme Court essentially abolished the Eleventh Amendment entirely and re-instituted the full version of “sovereign immunity”, where you couldn’t sue a State in any court, State or federal. The name of that case is Alden v. Maine.
I can’t really argue that Alden v. Maine is a travesty on the level of, say, Citizens United, for two reasons. First, sovereign immunity is an obscure branch of the law effecting only a few people in narrow cases. It’s the kind of thing only lawyers care about. And as noted above, it involves a compromise in which the people who care about it are “bought off”: I got my attorney’s fees and my client at least got his future benefits, and what he really wanted, the satisfaction of proving that the State was wrong, that it was violating federal age discrimination law.
On the level of principal, though, it’s a disaster. From now on, any time anyone spouts off about “interpreting” the law (or worse, “interpreting” the law according to its “original intent”) I will remember Alden v. Maine and how they “interpreted” the simple, express and unambiguous text of the Eleventh Amendment right off the face of the planet. Antonin Scalia, who likes to call himself an originalist and has even written a book where he takes up the originalist cause for the sake of argument (A Matter of Interpretation) was in the majority in Alden v. Maine.
To be sure, I think the argument can be made, and Justice Kennedy did in fact make it in the Alden v. Maine decision, that sometimes bits and pieces of the Constitution (like the Eleventh Amendment’s bits about “diversity” jurisdiction and federal court) should not be interpreted to contradict the overall structure of the thing (in this case, “federalism”, a system of government in which “sovereignty” is divided and shared between the various States and the federal government) and whatever “intent” can be implied from that structure.
In making that argument, though, one abandons the text, or at least principles of textual construction like the rule of exclusion. For 200 years, courts have applied that rule to the Eleventh Amendment. By barring lawsuits in federal court and saying nothing about state courts, the Eleventh Amendment seemed to allow suits against States in state courts, “by exclusion”. The Supreme Court in Alden v. Maine chucked that 200 years of precedent in favor of a “structural” argument from federalism which, abstractly and generally, is indistinguishable from the “emanations” and “penumbra” arguments of Roe v. Wade, much derided by Justice Scalia and his ilk.
It’s tempting once again to throw up one’s hands and say “it’s all lies, lies, lies” and to a certain extent, I’ve done that. Since precedent has little force in Constitutional law, I don’t think it’s absolutely necessary to be citing it with academic precision (unless you are an academic of course). If I abandon my fixation on precedent and the exact words of the text of the Eleventh Amendment (going against all my training in that way), and get off the high horse of abstract principal (“republican values”, as expressed eloquently by the authors of the first Supreme Court to address the matter in Chislom) and pay attention to how the law of sovereign immunity has developed, it turns out to be not quite so bad.
What has developed is an institutional compromise in which I can sue the State to enforce federal law, get paid, and get injunctive relief for my clients. This “development” has components like the distinction between “damages” and “injunctive relief” and attorney’s fees.
There is also, I should mention a legal fiction involved, called the Ex Parte Young doctrine, which anyone who is not a lawyer had best not pay any attention to, lest their brain explode. (Under this fiction I didn’t sue the State of New Mexico at all for Mr. Gill, I sued the retirement board in its individual capacity. Does this really make any difference? No. Is it absolutely essential for a successful lawsuit of this kind? Yes. Is this the kind of silliness we lawyers invent to protect our monopoly and make sure we get paid the big bucks? Absolutely.) You can’t have Alden v. Maine (“the King can do no wrong’) and have it work without the existence of an established vehicle for addressing “wrongs” by “the King”.
In this case, there was a case once in which some lawyer had the bright idea of pretending he wasn’t suing the State, he was suing a State official who was breaking the law, and he wasn’t asking for money, just a court order telling the official to stop breaking the law. (We call that an “injunction”.) The case is called Ex parte Young, and the weird Latin name itself should suggest to you that something funny is going on. Amazingly enough, a judge went along with it, was upheld on appeal, and even more judges have been conspiring to keep this absurdity alive because it serves a valuable function: making State officials comply with federal law. In its own way, it’s less absurd than the fiction that laws are “enforced” (indirectly) by entering judgments for money damages for the harm caused by noncompliance. Now we just skip that whole rigamarole and the federal judge directly states: you’ve been doing it wrong, do it this way from now on.
So 200 years has “developed” this system whereby the States have the flexibility to pay their debts as the money is available, including the option to simply blow off creditors with no legal consequences (though there may very well be financial consequences in terms of the State’s future creditworthiness) but not the option to simply violate federal law with impunity. Rather than use the somewhat arbitrary distinctions of federal jurisdiction as the formality for deciding when States are subject to court orders (as the Eleventh Amendment) we now use the much-more developed law of “injunctive relief” which has a myriad of cases and rules for judges to rely on to decide whether and how they are going to enter legally-binding orders telling States to do this or that. This is an improvement over “damages” for wrongs done by “the King” because injunctions are forward-looking rather than relying on past wrongs. This means that, instead of having a judge tell State officials “you’ve been doing this all wrong, whether you understood that or not, and now you’re going to pay” the judge says: “what you have been doing is wrong and in the future you will conduct yourself according to the rules I’m going to tell you now.” People hate that, but at least they have fair warning and an opportunity to correct things.
In conclusion: what development is not: unwrapping a text by taking apart the meanings of the words (for example, in the case of the Eleventh Amendment, the meanings of the words “federal” and “diversity” which now have no legal effect). Sometimes we unwrap a text by negating the words themselves in favor of “developments” which are extra-textual (though they may themselves be texts, other texts, as in this case the word “damages” has been parsed very narrowly). In the process we may find that complete absurdities (like the Ex parte Young fiction) have a role to play in context and practice, though standing by themselves they are ridiculous. Assumed throughout are existing institutions with built-in attention to real problems involving real people, institutions which keep records and make those records open to people who care about them (nominally “the public”, but that’s another fiction for another day).