An Immodest Proposal
Most of the Supreme Court's caseload is statutory interpretation. In many areas (I'm thinking specifically of ERISA and federal bankruptcy law, but there are probably others) the Court has screwed things up royally because, to be frank, its members don't actually know anything about the area of law they're interpreting. Their ignorance is understandable. They're generalists, chosen for their position largely because of their views on higher-order constitutional issues. Moreover, the statutory cases they get come from the federal circuits, which are themselves composed of generalists.
But why must that be so? I understand why you'd want the Supreme Court, the forum of last resort on the whole diverse host of legal/constitutional issues, to be composed of generalists. And I understand why one would want trial courts, whose principal function is presiding over the processes of civil and criminal litigation, to be able to handle any case that comes before them. But why do the intermediate courts, the circuits, have to be composed of generalists? Their function - deciding questions of law on appeal - seems perfectly tailored for a high degree of specialization.
So here's my humble suggestion: replace the current geographic circuits with subject matter-based circuits. Have a tax circuit, an ERISA circuit, a labor law circuit, and so on. Have a separate circuit dedicated just to hearing constitutional questions. The circuits would obviously vary in size depending on the caseload of their subject matter. If a case involved multiple questions of law that implicate different subject matters, each issue could be appealed separately to the different circuits. Judges who were (are aspired to be) polymaths could be appointed to multiple circuits at once (with obvious adjustments in pay - a judge dividing his time among three circuits shouldn't receive three salaries!).
I think my proposal, if adopted, would do a lot of good. Appeals to the Supreme Court would now be filtered through courts that had knowledge on the substance of the law being interpreted. If the Court then adopted a Chevron-like presumption of correctness to decisions coming out of the circuits, it would do a lot to regularize and rationalize whole areas of the law (not to mention reduce the power of the Supreme Court - always a hobbyhorse of us right wingers).
UPDATE: See, this is what I love about blogging. It's a world in which even my craziest ideas are met with reasoned counter-argument rather than dismissive eye-rolling.
Will Baude takes my idea for re-orienting the federal circuits behind the woodshed. I'll do my best to respond to his arguments point-by-point. I'll admit right now that I find what Will says persuasive on the "we shouldn't change" point, if not necessarily dispositive on the "the current system is better than my proposal" one.
1. Transition Costs: This is obviously a big real-world barrier. My proposal would send the entire federal appellate bench into early retirement, and probably tie up the better part of a Congressional term trying to re-staff the system (particularly in this era of judicial filibusters). That said, these costs aren't insurmountable, and if the new system would be substantially superior to the old one they may be worth bearing. Plus there's the psychic benefit of burning much of the federal judiciary to the ground (note to FBI: metaphorically! metaphorically!) which appeals to those of us of chaotic-evil alignment. (Mansfield Fox: come for the implausible legal proposals, stay for the Dungeons and Dragons jokes!)
2. Transaction Costs: Each of the circuits would indeed have to have national jurisdiction. I'm undecided on whether the circuits would each have a fixed seat or would "ride circuit" throughout the whole country. Each has potential upsides and downsides. Even if we go right away to the former, and stick the securities law circuit in Chicago, the labor law court in Denver, the Federal Tort Claims Act court in San Francisco, etc, I'm not sure how much more flying is going to be required of appellate litigators, who I imagine do a fair amount of business flying as it is.
3. The District Courts: I do think the district courts ought to remain in their current geographical alignment, for basically the reasons Will details. I'm not sure how this would just push the ignorance I'm concerned about down a level. At worst, district court judges will be at the same level of ignorance they are now. I suspect, however, that things will be better than that, since district courts, as they fumble around with novel legal claims, will now be taking their cues from and facing appeal to circuit courts that actually know what they're talking about. There are also, as Will suggests serious monitoring problems with having every circuit responsible (in part) for every district court (I'm reminded of Peter's complaint in Office Space that he has eight different bosses) but I think the professionalism of the district judges and the arch-litigiousness of American litigants can probably keep that mostly in check.
4. Multiple Claims: I do indeed pity such a pro se litigant. The best I can say for him is that under my proposal each of his claims can be appealed to a group of judges who are specialized in that area of the law, rather than being heard en masse by judges who may be largely ignorant regarding RLIUPA.
5. Interrelated Law: This is the biggest problem for my idea. For cases like the one Will outlines, the best solution I can think of is to give the constitutional claims circuit the power to sit as a miny Supreme Court for constitutional issues, taking discretionary appeals from other circuits when their decisions arguably clash with the Constitution. Another problem would occur if two circuits reached conclusions on different issues of substantive law that were both constitutional but which nevertheless required opposite results when returned to the district court. You would have, in effect, a circuit split in a single case or controversy. And, like circuit splits today, the Supreme Court could resolve them. Except, since the district court, serving two circuit masters, would be unable to decide the case until the split was resolved, the Supreme Court would arguably have to take the case, which would trample underfoot the discretionary nature of the Court's appellate proceedings. That's probably a solid argument in principle against my proposal, and if those kinds of splits were sufficiently common, it would be a solid practical argument against it as well.
6. Capture: I knew there was something I'd meant to include in the original post and didn't. I agree that there's a possibility of capture, though I think the professionalism and virtue (stop snickering!) of judges, as well as the threat of impeachment if things really get bad, will probably keep things in check. A related threat that I think is more serious and likely is that a narrowness of views will set in in each circuit. (Indeed, the system I've outlined is designed to produce a great deal of view-narrowing. A rational, regular understanding of ERISA is necessarily one that doesn't entertain all possible views.) It's chaotic all out, but at least under our current geographical system all the various diverse circuits - from the moonbat Ninth to the knuckle-dragging Fourth, from the limousine-liberal Second to the heartless-libertarian Seventh (federal judges: I kid because I love!) - have at least the possibility to have their say on any given issue. I think that's worth losing for greater rationalization and regularity, but I ought to be honest about what I'm suggesting we give up.
Other problems Will didn't bring up (for the sake of completeness): What happens to non-federalized circuit precedent? Would we just return to precedental Year Zero? Would we nationalize the precedent of a given circuit? If so, which one (and wouldn't that be the mother of all battles over legal obscura)?
Would such a system be constitutional? I suspect so, in part because we already do it on a small scale, with separate courts for the military, patent law, tax, etc. But it's entirely possible that something in the "Judicial Power of the United States" or due process, requires that judges with plenary legal/equitable power be the norm and permits subject-matter courts only as exceptions. As I said, I'm skeptical and am pretty sure that Congress can organize the federal judiciary pretty much as it sees fit, but I'm open to the argument that my idea isn't constitutionally permissible.
FURTHER UPDATE: So Will and my back-and-forth seems to have inspired much assorted blogospheric commentary. Heidi Bond points out that the Federal Circuit already is a subject-matter circuit. Listless Lawyer thinks I'm essentializing the law. Inclination to Criticize makes a number of good points (that I'm being unHayekian, that my system may require advisory opinions). I'll try to respond as best I can:
Ms Bond is right, of course, about the Federal Circuit, but I think she's underestimating how radical my idea is. I'm not just suggesting we turn every circuit into a version of the Federal Circuit, hearing whole cases that implicate their area of specialization. I'm proposing a radical reorientation of the way we think about appeals on questions of law. I do, in fact, want to "split the case up". Under my system, a case would get broken up into its constituent legal parts at the appellate level, with each question going to a circuit that only hears, not cases, but questions of that kind. (Any confusion on this point is my fault; my initial post I think was insufficiently clear on this point.)
Regarding Listless Lawyer, I think he mistakes my meaning (again, the source of the confusion is almost certainly with me). My point is not that there's some abstract concept of "The Law" floating around in the Forms. (I actually do, in a sense, believe that, but that's a debate for another time.) Rather, my point is to follow the lead of men like Prof John Langbein, who's argued that, because the Supreme Court doesn't understand the inner workings of employee benefit law generally or ERISA specifically, they're forced to decide specific cases in isolation, without any overarching theory of how ERISA as a whole should function. So they give "equitable" a reading that's plausible in the abstract, but which, in practice, guts the whole ERISA system. (Note: I know nothing about ERISA, and am just relying on Langbein's say-so.) It's not that there's a Platonic "The Law" out there, but there is an ERISA statute, and there are more and less plausible readings of the text, and there are better and worse policy outcomes that can be produced from judicial interpretation. From a purely positivist, legal-realist perspective, of course ERISA is nothing more than what the Supreme Court interprets it to be, but that doesn't mean that there aren't any outside metrics against we can judge those interpretations, or that we wouldn't be better off if the judges who make the law have more than a sketchy understanding of the area in which they're interpreting.
To be honest, I find Inclination to Criticize's critiques the hardest to rebut. It is in fact the case that my system gives up the diversity of opinions our current circuit system provides in order to achieve specialization and expertise. Again, I think, net, this is a trade-off worth making, but I shouldn't hide the ball with regard to what I'm giving up. And, of course, I am being unHayekian (Will made the same point via email; he also accused me of being French, which struck me as a bridge too far). As a result, I sound just like those early 20th Century Progressives I despise so much, putting my trust in expertise and rationalization. The best I can say for myself is that there actually are some areas of life where expertise matters, and that understanding and interpreting complicated, intra-related thousand-plus-page federal statutes is probably one of those areas.
It's also true that under my system we'd have to have something like advisory opinions. A possible partial solution would be to bring the cases back together when they're heard in the Supreme Court. So, under the example Inclination gives, the Tax Circuit and the Constitutional Circuit would (more or less) hear the appeals simultaneously, decide the issues before them and produce opinions, and both would be appealed to the Supreme Court at the same time (assuming the Court takes cert on both). The Court would then decide the issues before it, even those that were made moot by the others. So, even if the constitutional issue rendered the whole trial unlawful, the Court would still resolve the tax issue for future cases. That would, in some sense, be an advisory opinion, but it would be one that was kosher with regard to the "case or controversy" requirement (except in the most hyper-formalist sense that the constitutional defect meant that there was no case). I suppose my question in response is: other than the "case or controversy" requirement, what's so wrong with advisory opinions?
(Also, I'm a "massive fraggle", not a "giant fraggle". All the poetry is lost if you mistranscribe it.)
STILL MORE UPDATES: I just wanted to add that I feel kind of like the squib-tossing defendant from Scott v. Shepherd. (That's a gag for lawyer-types only, but I figure if you've made it this far you must be at least somewhat into the law.)
But why must that be so? I understand why you'd want the Supreme Court, the forum of last resort on the whole diverse host of legal/constitutional issues, to be composed of generalists. And I understand why one would want trial courts, whose principal function is presiding over the processes of civil and criminal litigation, to be able to handle any case that comes before them. But why do the intermediate courts, the circuits, have to be composed of generalists? Their function - deciding questions of law on appeal - seems perfectly tailored for a high degree of specialization.
So here's my humble suggestion: replace the current geographic circuits with subject matter-based circuits. Have a tax circuit, an ERISA circuit, a labor law circuit, and so on. Have a separate circuit dedicated just to hearing constitutional questions. The circuits would obviously vary in size depending on the caseload of their subject matter. If a case involved multiple questions of law that implicate different subject matters, each issue could be appealed separately to the different circuits. Judges who were (are aspired to be) polymaths could be appointed to multiple circuits at once (with obvious adjustments in pay - a judge dividing his time among three circuits shouldn't receive three salaries!).
I think my proposal, if adopted, would do a lot of good. Appeals to the Supreme Court would now be filtered through courts that had knowledge on the substance of the law being interpreted. If the Court then adopted a Chevron-like presumption of correctness to decisions coming out of the circuits, it would do a lot to regularize and rationalize whole areas of the law (not to mention reduce the power of the Supreme Court - always a hobbyhorse of us right wingers).
UPDATE: See, this is what I love about blogging. It's a world in which even my craziest ideas are met with reasoned counter-argument rather than dismissive eye-rolling.
Will Baude takes my idea for re-orienting the federal circuits behind the woodshed. I'll do my best to respond to his arguments point-by-point. I'll admit right now that I find what Will says persuasive on the "we shouldn't change" point, if not necessarily dispositive on the "the current system is better than my proposal" one.
1. Transition Costs: This is obviously a big real-world barrier. My proposal would send the entire federal appellate bench into early retirement, and probably tie up the better part of a Congressional term trying to re-staff the system (particularly in this era of judicial filibusters). That said, these costs aren't insurmountable, and if the new system would be substantially superior to the old one they may be worth bearing. Plus there's the psychic benefit of burning much of the federal judiciary to the ground (note to FBI: metaphorically! metaphorically!) which appeals to those of us of chaotic-evil alignment. (Mansfield Fox: come for the implausible legal proposals, stay for the Dungeons and Dragons jokes!)
2. Transaction Costs: Each of the circuits would indeed have to have national jurisdiction. I'm undecided on whether the circuits would each have a fixed seat or would "ride circuit" throughout the whole country. Each has potential upsides and downsides. Even if we go right away to the former, and stick the securities law circuit in Chicago, the labor law court in Denver, the Federal Tort Claims Act court in San Francisco, etc, I'm not sure how much more flying is going to be required of appellate litigators, who I imagine do a fair amount of business flying as it is.
3. The District Courts: I do think the district courts ought to remain in their current geographical alignment, for basically the reasons Will details. I'm not sure how this would just push the ignorance I'm concerned about down a level. At worst, district court judges will be at the same level of ignorance they are now. I suspect, however, that things will be better than that, since district courts, as they fumble around with novel legal claims, will now be taking their cues from and facing appeal to circuit courts that actually know what they're talking about. There are also, as Will suggests serious monitoring problems with having every circuit responsible (in part) for every district court (I'm reminded of Peter's complaint in Office Space that he has eight different bosses) but I think the professionalism of the district judges and the arch-litigiousness of American litigants can probably keep that mostly in check.
4. Multiple Claims: I do indeed pity such a pro se litigant. The best I can say for him is that under my proposal each of his claims can be appealed to a group of judges who are specialized in that area of the law, rather than being heard en masse by judges who may be largely ignorant regarding RLIUPA.
5. Interrelated Law: This is the biggest problem for my idea. For cases like the one Will outlines, the best solution I can think of is to give the constitutional claims circuit the power to sit as a miny Supreme Court for constitutional issues, taking discretionary appeals from other circuits when their decisions arguably clash with the Constitution. Another problem would occur if two circuits reached conclusions on different issues of substantive law that were both constitutional but which nevertheless required opposite results when returned to the district court. You would have, in effect, a circuit split in a single case or controversy. And, like circuit splits today, the Supreme Court could resolve them. Except, since the district court, serving two circuit masters, would be unable to decide the case until the split was resolved, the Supreme Court would arguably have to take the case, which would trample underfoot the discretionary nature of the Court's appellate proceedings. That's probably a solid argument in principle against my proposal, and if those kinds of splits were sufficiently common, it would be a solid practical argument against it as well.
6. Capture: I knew there was something I'd meant to include in the original post and didn't. I agree that there's a possibility of capture, though I think the professionalism and virtue (stop snickering!) of judges, as well as the threat of impeachment if things really get bad, will probably keep things in check. A related threat that I think is more serious and likely is that a narrowness of views will set in in each circuit. (Indeed, the system I've outlined is designed to produce a great deal of view-narrowing. A rational, regular understanding of ERISA is necessarily one that doesn't entertain all possible views.) It's chaotic all out, but at least under our current geographical system all the various diverse circuits - from the moonbat Ninth to the knuckle-dragging Fourth, from the limousine-liberal Second to the heartless-libertarian Seventh (federal judges: I kid because I love!) - have at least the possibility to have their say on any given issue. I think that's worth losing for greater rationalization and regularity, but I ought to be honest about what I'm suggesting we give up.
Other problems Will didn't bring up (for the sake of completeness): What happens to non-federalized circuit precedent? Would we just return to precedental Year Zero? Would we nationalize the precedent of a given circuit? If so, which one (and wouldn't that be the mother of all battles over legal obscura)?
Would such a system be constitutional? I suspect so, in part because we already do it on a small scale, with separate courts for the military, patent law, tax, etc. But it's entirely possible that something in the "Judicial Power of the United States" or due process, requires that judges with plenary legal/equitable power be the norm and permits subject-matter courts only as exceptions. As I said, I'm skeptical and am pretty sure that Congress can organize the federal judiciary pretty much as it sees fit, but I'm open to the argument that my idea isn't constitutionally permissible.
FURTHER UPDATE: So Will and my back-and-forth seems to have inspired much assorted blogospheric commentary. Heidi Bond points out that the Federal Circuit already is a subject-matter circuit. Listless Lawyer thinks I'm essentializing the law. Inclination to Criticize makes a number of good points (that I'm being unHayekian, that my system may require advisory opinions). I'll try to respond as best I can:
Ms Bond is right, of course, about the Federal Circuit, but I think she's underestimating how radical my idea is. I'm not just suggesting we turn every circuit into a version of the Federal Circuit, hearing whole cases that implicate their area of specialization. I'm proposing a radical reorientation of the way we think about appeals on questions of law. I do, in fact, want to "split the case up". Under my system, a case would get broken up into its constituent legal parts at the appellate level, with each question going to a circuit that only hears, not cases, but questions of that kind. (Any confusion on this point is my fault; my initial post I think was insufficiently clear on this point.)
Regarding Listless Lawyer, I think he mistakes my meaning (again, the source of the confusion is almost certainly with me). My point is not that there's some abstract concept of "The Law" floating around in the Forms. (I actually do, in a sense, believe that, but that's a debate for another time.) Rather, my point is to follow the lead of men like Prof John Langbein, who's argued that, because the Supreme Court doesn't understand the inner workings of employee benefit law generally or ERISA specifically, they're forced to decide specific cases in isolation, without any overarching theory of how ERISA as a whole should function. So they give "equitable" a reading that's plausible in the abstract, but which, in practice, guts the whole ERISA system. (Note: I know nothing about ERISA, and am just relying on Langbein's say-so.) It's not that there's a Platonic "The Law" out there, but there is an ERISA statute, and there are more and less plausible readings of the text, and there are better and worse policy outcomes that can be produced from judicial interpretation. From a purely positivist, legal-realist perspective, of course ERISA is nothing more than what the Supreme Court interprets it to be, but that doesn't mean that there aren't any outside metrics against we can judge those interpretations, or that we wouldn't be better off if the judges who make the law have more than a sketchy understanding of the area in which they're interpreting.
To be honest, I find Inclination to Criticize's critiques the hardest to rebut. It is in fact the case that my system gives up the diversity of opinions our current circuit system provides in order to achieve specialization and expertise. Again, I think, net, this is a trade-off worth making, but I shouldn't hide the ball with regard to what I'm giving up. And, of course, I am being unHayekian (Will made the same point via email; he also accused me of being French, which struck me as a bridge too far). As a result, I sound just like those early 20th Century Progressives I despise so much, putting my trust in expertise and rationalization. The best I can say for myself is that there actually are some areas of life where expertise matters, and that understanding and interpreting complicated, intra-related thousand-plus-page federal statutes is probably one of those areas.
It's also true that under my system we'd have to have something like advisory opinions. A possible partial solution would be to bring the cases back together when they're heard in the Supreme Court. So, under the example Inclination gives, the Tax Circuit and the Constitutional Circuit would (more or less) hear the appeals simultaneously, decide the issues before them and produce opinions, and both would be appealed to the Supreme Court at the same time (assuming the Court takes cert on both). The Court would then decide the issues before it, even those that were made moot by the others. So, even if the constitutional issue rendered the whole trial unlawful, the Court would still resolve the tax issue for future cases. That would, in some sense, be an advisory opinion, but it would be one that was kosher with regard to the "case or controversy" requirement (except in the most hyper-formalist sense that the constitutional defect meant that there was no case). I suppose my question in response is: other than the "case or controversy" requirement, what's so wrong with advisory opinions?
(Also, I'm a "massive fraggle", not a "giant fraggle". All the poetry is lost if you mistranscribe it.)
STILL MORE UPDATES: I just wanted to add that I feel kind of like the squib-tossing defendant from Scott v. Shepherd. (That's a gag for lawyer-types only, but I figure if you've made it this far you must be at least somewhat into the law.)
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