Saturday, April 07, 2007

Massachusetts v. EPA

On Monday, the Supreme Court issued a much-awaited decision in Massachusetts v. EPA (05-1120), holding that the EPA does, in fact, have statutory authority to regulate greenhouse (the EPA has been denying that it could regulate carbon dioxide, even if it wanted to – which it doesn’t). The Court also ordered the EPA either to promulgate meaningful regulations, or offer some sophisticated scientific basis for not doing so.

I must agree with Gary Feinerman, the Solicitor General for Illinois, that Mass v. EPA foreshadows a “more active role for States in attempting to drive the regulatory agenda at the national level." More specifically, it enhances the role of a state Attorney General to include intense involvement in national policy and federal administrative agencies. These cases came from the AG offices, not by public referendum in each petitioning state.

Disclosure: I worked on this case during its nascent stage, very briefly, during my stint at the Connecticut Attorney General’s Office, so I have both a bias in favor of the majority’s holding, and a (limited) insider’s view on what goes on in the AG offices when these types of cases are hatching. I agree with the Court’s decision because I think it marks a new era where federal administrative agencies will have more accountability to the citizenry. In a sense, the indirect consequences of Mass v. EPA - in making regulatory law more democratic - may supersede the immediate consequences for greenhouse gas regulations.

Mass v. EPA highlights the growing political importance – and hence higher stakes – of the state AG position. In forty-three states, the AG is an elected official. The elections will be more controversial; the office will have a higher profile; and the position may attract a different kind of candidate, more political and policy-oriented.

As a result, Mass v. EPA also heralds a new era with both more collaboration and more competition between the state AG’s. The semi-national stature of the position can pit one AG against another in vying for more of the national limelight – competition to see which one can bring more federal cases, which one can be the “lead state” on these multistate-consortium cases, etc.

Finally, as the role of the state AG rises in importance, the stature of citizen activist groups diminishes. Admittedly, citizen groups collaborated with the AG’s in this present case. Yet as the AG becomes “the People’s lawyer” instead of general counsel for the state’s executive branch, the people will turn to the AG instead of groups like the Sierra Club to litigate for tangible changes in regulatory policy. The Supreme Court’s emphasis on the “special role” for states (on the issue of standing) will intensify this effect. For future cases, it would clearly be more strategic for concerned citizens to have their AG sue than to go through an activist group (like the NRDC or Sierra Club), because the Court has already announced a rule that the AG is more likely to have standing. In this sense, one could say that this is anti-SCRAP, not the new SCRAP. It shifts standing away from citizen groups, and tilts the standing scale toward the AG’s office instead.

Thursday, April 05, 2007

How We Learn the Law

When I was a 1L, I remember wondering why we needed to plod through endless, outdated cases in order to learn the law. At the time, it seemed to me that it would have been more efficient for us to use a commercial outline - or at least a Hornbook- to master a subject like Contracts or Criminal Law...

My pesky inquiries about this usually elicited one of two answers. First, the most common answer was that the professor thought all the commercial outlines were riddled with errors, completely worthless, and contradictory to what the professor believed about the subject. I found this answer troubling. Did the professors really know what was contained in every commercial study aid? They always cited one or two anecdotes where oblivious-and-scared students challenged prof's knowledge of her area of specialty with Steven Emmanuel's definitive holding on the issue. It was appropriate to be dismissive in such a case. Even so, what about the study aids written by professors at other law schools? Higher-ranked law schools? Also, wouldn't there be a huge market, in that case, for my professor to author the only correct version? Wouldn't somebody, somewhere, foil the great Conspiracy of Erroneous Study Aids simply by publishing the truth at some point? Was the truth about law supposed to be a secret?

This brought me to the more troubling question. If ten hornbooks, treatises, and study aids, all authored by professors at respectable law schools, took a different position than my singular professor, it would take a leap of faith to believe my professor was right - the only one in the world who knew the right answer - and all other professors were wrong. My 1L mind would cloud with doubt. It reminded me of fundamentalist meetings I had attended, where speakers were convinced that the King James Version of the Bible was infinitely superior to all other translations - none of which the speaker had ever read, of course, and some of which the speaker did not know existed. How could they be so sure?

Third, given that some of the study aids I used (as a student) were really BarBri materials - the very materials that 30,000 students use every year to prepare for the bar exam - why was there no outcry from the professors about the serious errors of law pervading the universal bar prep course? Why didn't it bother anyone that the last word graduates heard on Contracts - before entering the legal profession - was something completely unreliable, mostly incorrect, or irrelevant to the "real" subject matter? This seemed bizarre. Or, if the BarBri outlines and audio recordings were good enough for every new lawyer in the country to recap what they had learned in law school, how could they be so anathema for me three years earlier in the pipeline?

The other answer I received was much better, but not entirely satisfactory: students learn best (in any area of study) if there is a strong element of self-led discovery. We read cases to "discover" the law for ourselves. This made more sense than the idea that study aids were part of a Great Conspiracy to deceive; I recognized that I often remembered things longer if I figured them out myself somehow. Even so, there was so much to learn - it was hard to imagine that it wasn't - at least - a tradeoff between self-discovery and learning more quickly (and thus more law) from others who already made all these discoveries. Why not stand on the shoulders of giants?

My confusion about the value of cases deepened when all the 2Ls and 3Ls admonished us newbies about the absolute necessity of “outlining” at the end of the semester. I couldn’t imagine that my “outline” after three months of law school would be much better than Joshua Dressler’s outline, on sale for $40 in the campus bookstore. Again, the refrain was something about discovering it for myself, which seemed terribly inefficient, even it kept things lodged in my brain longer.

Worse, the more radical (or mischievous) 3Ls would tell me that reading cases was a waste of time, useless for obtaining a good grade on the exam. I needed to know “the black letter law,” the kind that would magically emanate from my personal “outline.” This led me back to the Great Conspiracy question: why did every professor compel us to read cases all the time? How could these 3L’s understand “learning the law” better than virtually all professors everywhere?

Eventually, I understood. Reading the cases is the only way, at least for most subjects, for the average student to appreciate the richness and subtleties of the individual legal rules. Preparing outlines for the exam is no substitute.

Outlining is valuable for "tying it all together," seeing the logical coherence of a body of law, and (perhaps most valuable for students) surveying what parts of the course the outliner has mastered and what parts are still unclear. At the same time, if outlining is the exclusive approach to exam preparation, there is a danger that the student will have a superficial grasp of how the rules operate in different factual scenarios, as each rule appears to be merely a bullet point on an outline. This "black letter law" approach is wrong; it is simply inconsistent with the real world, where judges apply the rules differently in different cases, jurisdictions disagree about the parameters or exceptions to the rules, and procedural or technical differences can cause the "same" rule to yield different outcomes. Every word of a legal rule (for example, the "irresistible impulse" defense in Criminal Law) contains ambiguity, particularly at the margins. There is, therefore, always some uncertainty about how the rule will apply to a particular fact pattern (especially examination fact patterns!). When the legal rule appears as a single-sentence (or phrase) bullet-point on a student's "outline," this inherent uncertainty and ambiguity is masked; it looks like a simple rule that the student can memorize and regurgitate on the exam. It is an illusion that inheres in legal outlines.

Students who rely too much on their outlines, as opposed to reading cases and participating actively in class discussions, often go into the exam with a simpleminded, "black-letter" concept of the law. Not only do they have a misconceived notion of legal rules, but many have a false sense of security. Some apparently think they mastered the course because they mastered their outline, which ultimately is little different than the Table of Contents that was in the preface to their casebook all along. Worse still, some scrape by and enter the legal profession with the same shallow, superficial ideas about the rules, which is a disservice - a handicap - to their clients. (On the other hand, as a practitioner I was sometimes thankful there were lawyers like this – when they were opposing counsel).

Reading and discussing the cases - even hearing students suggest mistaken or erroneous ideas in class, being corrected by the professor - provides the balance to the "black letter" syndrome. The cases illustrate how confusing and uncertain the rules really are; how reasonable minds can differ about how to apply the rules to various facts; and how courts struggle to resolve the seemingly endless ambiguities in the statutory words themselves. This rigorous mental exercise is difficult for most people (so difficult that it makes memorizing and reciting the rules seem blissfully easy by comparison). We acquire it through much practice.

"Outlining" cannot provide such practice. Reading and pondering cases (and maybe professors' hypotheticals) is the only way to practice and hone this skill. I recognize that law school would be less stressful, and less difficult, if the professors tested only on outline-type knowledge and "black letter law." It would also produce lousy, simpleton lawyers. A child can read a rule and memorize it; clients need someone who can "handle" the legal rules, anticipate the arguments and counterarguments for both sides of a question, and work out a theory of the case. Outlining is valuable for most students, as I said at the outset, but it does not give the students the complete picture.

Wednesday, March 14, 2007

Reverse Bifurcation Article

I previously blogged about my interest in Reverse Bifurfaction (in civil trials) and solicited comments and suggestions. The article is now in print from the University of Cincinnati Law Review. The original draft version is still available for free download on the Social Science Research Network site, at