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More on Roberts and Legal Scholarship:
Following up on yesterday's post about Chief Justice Roberts and legal authority, I did a quick check of the opinions John Roberts filed as a circuit court judge. I found a bunch of cases in which Roberts discussed or cited scholarly commentary. In every case, the commentary cited or discussed was a leading treatise.

  First, there was U.S. ex rel. Totten v. Bombardier Corp, 380 F.3d 488 (D.C. Cir. 2004), a case about the False Claims Act. In response to a reading of the Act offered by Judge Garland in dissent, Roberts wrote the following:
The proposition that subsection (a)(2) harkens back to (a)(1), and that the latter requires presentment, is supported in scholarly commentary on the False Claims Act. A leading treatise on the False Claims Act states that "[t]he three requirements of Section [3729](a)(1)" — including the requirement "that a claim be presented to the United States" — are "still applicable" to Section 3729(a)(2). 1 JOHN T. BOESE, CIVIL FALSE CLAIMS AND QUI TAM ACTIONS § 2.01[B], at 2-21 (2d ed. Supp. 2004-1). The dissent's contrary conclusion — that subsection (a)(2) does not require any presentment that may be required under subsection (a)(1) — has tellingly little support.
  Second, from Koszola v. F.D.I.C., 393 F.3d 1294 (D.C. Cir. 2005), a First Amendment case:
Nothing in the text of 5 U.S.C. § 1221, however, requires the district court to undertake the "clear and convincing" inquiry in terms of any particular legal "test," multi-factor or otherwise. "Clear and convincing evidence" is a common legal standard. See generally 9 WIGMORE ON EVIDENCE § 2498, at 424 (Chadbourn rev.1981) (standard of clear and convincing proof "commonly applied"); id. at 424-31 (cataloging instances in which standard is applied). Given the familiarity trial judges have with this standard, we do not think it grounds for reversal that the district court did not explicate its ruling according to a particular gloss.
Third, from In re Tennant, 359 F.3d 523 (D.C. Cir. 2004):
Mandamus jurisdiction over agency action lies, if anywhere, in the court that would have authority to review the agency's final decision. See FCC v. ITT World Communications, Inc., 466 U.S. 463, 468-69, 104 S.Ct. 1936, 1939, 80 L.Ed.2d 480 (1984); TRAC, 750 F.2d at 77-79; 16 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3942, at 796 & n.70 (1996).
  It's hard to make very much of this, of course. But assuming Roberts maintains the same practices on the Supreme Court, this evidence from his years on the D.C. Circuit makes it seem a bit less likely that Roberts will differ from the other Justices in his willingness to note or engage with scholarly commentary.

  UPDATE: I rewrote the post after finding a few more examples.

Related Posts (on one page):

  1. More on Roberts and Legal Scholarship:
  2. Chief Justice Roberts and Legal Authority:
Steve:
My Note, which I never completed, was on the False Claims Act. This post depresses me. I coulda been a contender!
3.8.2006 1:39pm
WB:
I love that first one. "I have a treatise. What do you have?"
3.8.2006 2:00pm
Eh Nonymous (mail) (www):
I love that WB loves the first one.
3.8.2006 2:13pm
Steve:
I'll give you the first one as a useful example. Cites to Wingmore and Wright &Miller are extremely vanilla, though, particularly in these two cases where the opinion could have easily been written without the treatise cites. The first example, though, quite clearly relies on the treatise as persuasive authority. Thank God Justice Kennedy didn't write it.
3.8.2006 2:21pm
Mark S (mail):
Unfortunately, what constitutes a "leading treatise" lies in the eye of the beholder. Take Roberts's cite to John Boese's "Civil False Claims and Qui Tam Actions", for example. Far from being an impartial commentator, Boese is a practicing attorney who makes his living exclusively representing defendants in qui tam actions. So, naturally, his "treatise" is extremely slanted towards the defense position on controversial issues. Every time a significant case comes out dealing with the False Claims Act, Boese immediately puts out a "FraudMail Alert" which provides a pro-defense spin on the case. Before relying on "leading treatises" on the Supreme Court, I hope Roberts takes the time to make sure that the treatise is more than just a brief for one side. (Interestingly, during his confirmation hearings, Roberts indicated that he might have gotten Totten wrong, and that the dissent was very persuasive).
3.8.2006 2:50pm
JLR (mail):
I think Chief Justice Roberts's recent unanimous opinions for the Court in Vegetal and Rumsfeld v. FAIR have potentially led to some overreading of tea leaves.

Through interpretations of both his judicial opinions and various comments he made in other fora (such as the NewsHour interview that Prof Kerr cites), it is at least fairly clear (and fairly safe to predict) that the Chief Justice is unwilling to write at the vanguard of voguish law-review theories.

As a result, if Chief Justice Roberts had been on the Court for, say, McCleskey v. Kemp back in 1987, it is highly likely that he would have voted with Justice Powell in the majority on shared jurisprudential grounds. The statistical information at issue in McCleskey is appropriate for legislative bodies to use to craft laws, rather than for judges to use to base constitutional interpretation upon. Individial racial bias needs to be shown for courts to reverse individual death penalty convictions.

I do not know off-hand (and have not attempted to do any substantive research) regarding what Chief Justice Roberts has said or written about McCleskey v. Kemp or about statistical showings of racial bias in death penalty cases. (Chief Justice Roberts did say some naturally and deliberately anodyne comments on other death penalty issues during his confirmation hearings. For example, Chief Justice Roberts told Senator Russ Feingold that he is not against eliminating all federal habeas corpus review; that is an innocuously soothing remark perfectly calibrated for the Senate hearings, and is a testament to the Chief Justice's immense talents that he exhibited when he went through the Senate confirmation process.)

But based on Chief Justice Roberts's methods of constitutional interpretation, it is likely that his desire to not work at the vanguard of law-review theories would likely influence cases that are like McCleskey, wherein the case hangs in the balance over said law-review theories.

Thanks.
3.8.2006 3:08pm
JLR (mail):
Let me rephrase a point I made in my above 3.8.06 3:08 pm comment in the form of a question:

Does anyone know if Chief Justice Roberts has said or written anything about McCleskey v. Kemp and/or statistical showings of racial bias in death penalty cases?

As I wrote in my above comment, Chief Justice Roberts did say some naturally and deliberately anodyne comments on other death penalty issues during his confirmation hearings. For example, Chief Justice Roberts told Senator Russ Feingold that he is not against eliminating all federal habeas corpus review; that is an innocuously soothing remark perfectly calibrated for the Senate hearings, and is a testament to the Chief Justice's immense talents that he exhibited when he went through the Senate confirmation process.

Thanks again.
3.8.2006 3:13pm
Tocqueville:
So are we still operating on the assumption that Justice Roberts (and former Judge Roberts), and not his law clerks, drafts his opinions?
3.8.2006 3:15pm
JLR (mail):
Whoops! With my desire to preserve the judicious double negative, I twice repeated the exact opposite of what I wished to say.

Chief Justice Roberts told Senator Russ Feingold that he is NOT IN FAVOR OF eliminating all federal habeas corpus review in death penalty cases.

The implication, therefore, is that he is against eliminating all federal habeas corpus review in death penalty cases.

Of course, "not being in favor of" something is not always the same as "being against" something.

But it's all about conveying the personality of a "lawyer's lawyer," and being such a "lawyer's lawyer" is why Senator Russ Feingold was one of three Democrats on the Judiciary Committee to vote for John Roberts.

Thanks again; my apologies for the error printed twice above.
3.8.2006 3:17pm
KMAJ (mail):
I have to wonder if the fact 'that he cites' versus 'what and how he cites' is a more predictive factor in trying to crystal ball the Roberts Court. I would love to hear an audio tape of the justices deliberations after the case presentation is finished. My own subjective opinion is that it is in this realm where Roberts may have the most effect. I was very impressed with his demeanor and ability to handle the aggressive tactics of some senators during his confirmation hearings. His debate and argumentation style are directly related to the ability to persuade the other justices to his opinion.

There are certainly different personalities at play on this court, of all of them, Roberts seems to be the most affable and strongest presenter, with Breyer following in second place. Scalia can be abrasive, rather than persuasive, when he disagrees, Ginsberg and Souter don't seem to carry a commanding presence and must rely more on supporting evidence, Powell, by weight of his longevity and seniority, probably is given due respect, though he does not seem very outspoken, Thomas seems more pensive and introspective, which lends to his consistency, but that silence leaves him isolated on some decisions, Alito does not seem to be one to take the lead, but if his appeals court decisions are any indication, he will dissent if he feels strongly (it is early yet to set a firm opinion of his SCOTUS effect). Kennedy is the hardest one to get a feel for, he is not the silent type, and seems to have an independent streak, but how his role plays out in deliberations, other than his penchant for international law, seems fuzzy. Let me add my disclaimer, the above is not a negative on the intellect of any justices compared to another, but more of a subjective observation of the force of their personalities in deliberations.
3.8.2006 3:19pm
Mark S (mail):
Two often overlooked reasons why Powell doesn't seem very outspoken are that he's retired and dead. Of course, that makes the respect he's given on this court all the more impressive.
3.8.2006 3:34pm
Hoosier:
powell is still participating in oral argument? Weird.
3.8.2006 3:39pm
Justice Fuller:
Admit it, people: KMAJ is right. If Powell spoke at conference, the other Justices would really pay attention.

(Damn liberals, they just don't get it, do they?)
3.8.2006 3:42pm
KMAJ (mail):
Ooops, y'all knew I meant Stevens. *smackin' self upside the head for not proofreading before hitting submit*. Mea culpa.

I would be interested in others perceptions of the roles, argumentation styles and force of personality in deliberations.
3.8.2006 4:50pm
RHD (mail):
A lawprof blog is probably a bad place to make an issue about whether Roberts cites academic articles in his opinions. Why should a busy judge, or an attorney writing an appellate brief to submit to a busy judge, cite some article that is typically far too long, and always insanely footnoted, just because it has been published by clueless law students in a review. Even if it makes some relevant point, the judge -- particularly if he is the CJ on the SCOTUS -- does not need the "authority" of some article to make a point, nor would citing an article provide any. I can see why those same clueless law students, recently escaped from their former lives as law review editors and newly incarnated as judicial clerks, might want to cite that stuff (perhaps even their own or another clerk's note!) in a draft, and also how a judge might let it remain in the ultimate opinion (on the grounds that it is, at worst, harmless, and besides, it amuses the kids to keep it in). But for the judge to go out of his way to cite it in the first instance? Why, for a judge to do it on his own, he might have to read such junk, and his day is already taken up with reading far too much bad prose as it is.

The talk about whether Roberts cites academic articles as authority is of importance only to those who have some personal interest in having articles cited. A lawprof is about the only person that fits that bill. For example, a lawprof friend of mine who writes one of the statutory commentaries published in McKinney's keeps a tally, more or less daily when the NY Court of Appeals is in session, about the number of times his commentaries are cited by the Court. Who else would care (other than his publisher, and they for obvious commercial reasons)?

So, three cheers for CJ Roberts, and may he continue for years writing short, plain and clear opinions that cite only what is needed leaving out all the fluff, even if that means that a few lawprofs may question the value of writing that next 100-pager that no one really wants to plow through anyway (but if it were 10 pages, it might be different).
3.8.2006 5:45pm
JLR (mail):
Here is a deliberately controversial thesis that I am not sure that even I agree with, but I want to throw it out into the comment thread and see what happens:

Only law professors and people who write and edit for law reviews care if the Supreme Court cites law review articles in its opinions.

This is, as I said, a proposition that is deliberately provocative in its phrasing, and deliberately absolutist in its use of the quantifier "only."

I merely am trying to ascertain to what extent practicing appellate lawyers and practicing judges really care if law review articles are cited in Supreme Court opinions. I am not talking about whether Supreme Court Justices read law review articles; obviously, it would be desirable for the Justices to keep up with the current literature in the fields of legal and constitutional studies. But in terms of actually incorporating such articles into Supreme Court decisions, is it really that important beyond the way in which such citations may then shape the contours of the scholarly literature on the given topic?

Thanks.
3.8.2006 5:52pm
Kovarsky (mail):
(1) I'm almost positive Roberts ultimately wrote all his own stuff on the circuit court. I do not believe he has changed that in his transition.

(2) Only law professors and people who write and edit for law reviews care if the Supreme Court cites law review articles in its opinions.

Not true. In fact, if you maintain that legal academia has a political slant, that proposition is incompatible with the one above. If you believe relying on LR articles as opposed to other sources of authority changes substantive outcomes, then many people would in fact care about that reliance. CAVEAT: if you really mean "citation" rather than "consideration" - i.e. you mean only the people that write the articles care who is given credit for the ideas they convey, then yes, probably nobody else gives a shit.
3.8.2006 7:48pm
Justice Fuller:
JLR writes:

Only law professors and people who write and edit for law reviews care if the Supreme Court cites law review articles in its opinions.

That's like saying only foreigners care if the Supreme Court cites foreign law in its opinions. Not true -- the issue has serious political legs.
3.8.2006 9:11pm
JLR (mail):
Mr. Kovarsky, thanks for your response. I agree with you completely.

I am inferring from your response that I should (for clarity's sake) reiterate a sentence that I wrote in the 3.8.06 5:52 pm comment that you are responding to: "I am not talking about whether Supreme Court Justices read law review articles; obviously, it would be desirable for the Justices to keep up with the current literature in the fields of legal and constitutional studies."

To use your terminology, I was indeed talking about "citation" rather than "consideration."

In other words, I was asking about (to use a hypothetical example) Professor John Q. Hornbook's concerns that a federal judge didn't cite his article on promissory estoppel law when the judge wrote a decision in a case pertaining to the intersection of freedom of the press with a state promissory estoppel law that covers anonymity of journalistic sources.

I agree with you Mr. Kovarsky. We should be aware of the ways in which the use of law review articles changes jurisprudential methods (as well as outcomes) of constitutional and statutory interpretation.

-----
Justice Fuller:

Let me make it clear:

I attempted to make it as clear as possible that the proposition I floated was not necessarily one I subscribed to. As I indicated in my 3.8.06 5:52 pm comment [link here], I constructed the proposition to be deliberately absolutist and deliberately provocative in order to receive responses that would serve as clarifications and amplifications on the issue at hand.

And Mr. Kovarsky's response pinpoints the distinction between "citation" and "consideration" -- one that helps elucidate the issues that are really at play here. We're not talking about pure "citation"; rather, we are talking about how the use of law review articles changes the methods and outcomes of constitutional and statutory interpretation.

Thanks again.
3.8.2006 9:39pm
Kovarsky (mail):
JLR,

Yeah I read the passage you're using as clarification - it struck me that you were talking about whether justices read articles; it wasn't clear that you were talking about scenarious where they relied on them but just didn't endorse them.

I think this is pretty simple - judges like roberts and scalia are seeking deterministic rules. the two part ways on what law is most deterministic. scalia seems to think that original understnading is most deterministic (say what? - it might be the most objectivfely verifiable for experts, but that's not the same thing), wheras it seems clear that roberts looks thinks precedent is, particularly since precedent takes original understanding as input.

if one has to resort to the most "deterministic" secondary sources, then of course those sources are going to be treatises, which tend to be the least editorialised compliations of secondary material. afterall, citing to a treatise section is similar to a string cite by incorporation.

also, re: the issue of whether treatises are biased. i'm not sure that just because a treatise author litigates a particular isssue that its necessary in his interest to write the treatise favorable to a defense. on the one hand, it makes his defense easier. on the other hand, it makes suits in which he would be eligible to defend less likely. particularly in a specialized area like qui tam suits, he's likely to absorb a not insignificant fraction of the diminished demand. the upshot is that its hard to tell which effect will dominate.
3.8.2006 10:49pm
Lev:
"Because of their relative inexperience and lack of knowledge, law review editors seem to have difficulty accurately determining quality directly."
3.9.2006 12:45am
Lev:
Following up on that

On the other hand, it might also suggest a vision of constitutional decision making that is awfully cramped and technical, in which the only guideposts are past cases, and statutory and regulatory texts stripped of their context, animating purposes or ideas. Lost in this approach is any sense of the broader legal culture that produces authoritative legal statements or the way in which such statements in turn shape the culture.



1. How does Barron know that Roberts et al. do not refer to The Holy Law Reviews in discussing the cases and drafting their opinions? Since when is a law review article Holy Scriptural Authority, especially to the Supreme Court?

2. What is the relevance of "the broader legal culture" and its then current fads and hysterias, to interpreting the Constitution?
3.9.2006 12:48am
Ted Frank (www):
The Roberts Court certainly relied on academic authority in its recent unanimous antitrust opinions, which goes to show that meritorious academic work in the Chicago School mode continues to have value.
3.9.2006 8:15am
CJColucci (mail):
Would it be too much to await a meaningful sample of opinions before getting obsessive about this?
3.9.2006 12:34pm