The Faculty Lounge

Call for Papers on Community Libraries in the Atlantic World, 1650-1850

From the communitylibraries.net project: 

We are delighted to announce the launch of a new AHRC-funded international research network on Community Libraries, which aims to establish a dynamic, interdisciplinary research forum to investigate the role of libraries in shaping communities in the long eighteenth century. Developed by Dr Mark Towsey (University of Liverpool) together with partners at Loyola University Chicago, the Newberry Library, and Dr Williams’s Library (London), the Network will explain the emergence of libraries in the ‘public sphere’ between 1650 and 1850. We will assess the contribution made by libraries to the circulation and reception of print of all kinds, and to the forging of collective identities amongst local, national, and international communities of readers. In addition, the network aims to explore the emergence of libraries in comparative perspective, asking how far models of library provision and administration were disseminated, discussed, imitated, and challenged as they travelled between different social environments and political regimes.

The antebellum college library catalogs and also the college literary society borrowing records have a lot to contribute to the history of the book project.

The image is of Washington Hall on the Washington and Lee campus.  As I recall the Washington Literary Society's offices were on the upper floor of the building.  Their library records and debate minutes are a terrific source of information on what the students were reading and thinking, which should be used in conjunction with the addresses given to literary societies.  Together those will allow us to reconstruct the world of ideas of constitutionalism, utility, and slavery so central to the old South.

Cultural Property Repatriation, Civil War Flags Edition

Further to my occasional commentary on the display of captured ordnance... and how much I'm uneasy with the display of ordnance used against the United States during the Civil War....

Umm, why have I never heard of the "Joint Resolution to Return to the Proper Authorities Certain Union and Confederate Battle Flags" that was passed on February 5, 1905 and is recorded at 33 Statutes at Large 1284?  I know this will surprise you given the title of the joint resolution: it deals with "Union and Confederate Battle Flags."  Pretty interesting to see what happened to the flags in the possession of the War Department -- those of the United States that couldn't be matched to a state were sent to West Point; those of the South that couldn't be matched to a state were sent to the Confederate Memorial Literary Society in Richmond.  About which I knew absolutely nothing.  I now learn that it owns the Museum of the Confederacy.  I think Eric visited that place when he was in Richmond a while back.

Here's the text of the resolution, by the way:

Resolved ... That the Secretary of War be, and he is hereby, authorized to deliver to the proper authorities of the respective States in which the regiments which bore these colors were organized certain Union and Confederate battle flags now in the custody of the War Department, for such final disposition as the aforesaid proper authorities may determine.

That "now in the custody of the War Department" part makes the claim on Virginia's flag in the Minnesota Historical Society mighty rickety.   But leaving the flimsy claim aside, what really interests me is (1) why isn't this more a part of the literature on reconciliation and memory of the Civil War?  I mean, I get that historians of memory all too often ignore law --  despite Glory McLaughlin's efforts to the contrary.  But shouldn't this be part of the story?  And (2), holy cow.  This is another example of a claim for repatriation of cultural property.  It's just like NAGPRA, only it relates to Civil War flags.  Or, as I'm fond of saying, this is another example of a claim for reparations for the era of slavery, just not of the kind we usually think about today.  I rather suppose that this claim will go the way of other reparations claims -- when people realize there is no legal claim (which anyone reading the joint resolution surely will understand), that will be the end of the discussion.

The flag used here is in the collection of the Minnesota Historical Society.

Ken Randall Retiring From University of Alabama

I want to talk a little bit about the news that my friend and mentor Ken Randall is retiring from the University of Alabama at the end of the month.  I have a lot of things I want to say about Ken and all the great things he's done for the University of Alabama over his nearly two decades long tenure as dean.  Time is short this evening, so I will confine my thoughts to a couple of vignettes.  When Ken took over as dean Alabama was ranked in what US News then called the "second tier" -- schools 51 to 99 or thereabouts.  Back then U.S. News didn't rank provide a specific rank to schools beyond the top 50, so it's not possible to tell exactly where the law school ranked beyond somewhere outside of the top fifty and better than 100.  Through dint of extraordinary work on his part of fund raising and recruiting of students -- and of course hard work by the earnest and talented faculty and staff -- Alabama rose into the top 50 around 1999.  That's about where it was when I arrived in 2001.  And the climb's continued, to the astonishing and impressive level it is at now.  Perhaps most impressive is that he's been able to move the notoriously static peer assessment score up, from about 2.6 to whatever it is now, I guess 3.0 or thereabouts.

Ken presided over years of excellent hiring and improvement in student quality; and the University has seen a correlation in growth as well.  When I arrived the University's enrollment was about 19,000; and I guess it's now over 30,000.  How this happened was a combination of talent and energy.  Among Ken's many talents is his work ethic -- there were lots of weekends and evenings that I'd be leaving the parking lot for home and his car was still there.  He personally called all admitted students and ran a terrific recruitment team.  (I know this because the last few years I've been recruiting against Alabama.)  But lots of people have terrific work ethic -- Ken's able to identify talent -- in students and faculty -- and recruit both to Tuscaloosa.  He has a set of skills across a broad range, from planning to execution.

Back in 2006 another terrific law school tried to recruit him as dean -- and the University was able fend off that raid, with among other things promises for increased support for faculty hiring.  Ken negotiated on behalf of the entire law school and helped us all improve.  I remember commenting to my colleague Susan Lyons at that point how lucky we were that Ken was staying.  That caused us to talk about another school that had offered him the deanship back around the time Alabama made him dean.  I commented sort of matter-of-factly that if he'd gone there that school would be in the top fifty.  And she thought for a moment and then said with a smile and a bit of a laugh, "I think that's right."

I guess I'm not shocked that Ken's leaving for other mountains to climb.  And I hope I have the chance to spend time with him down the road, to learn more lessons about teaching and administration, and life in general from him.  The quotation from Emerson that comes to mind now is from "Self-Reliance": "an institution is the lengthened shadow of one man."  And without sounding too melodramatic, that is certainly the case of the University of Alabama School of Law and Ken Randall.

Ken has left the school in terrific shape and I'm 100% certain that there will be enormous competition for the permanent deanship.  There are a huge number of positives in place and I'd imagine this will be the most sought-after deanship in the country next year.

Too Much Complexity is Not “Veteran Friendly”

Thanks again to Dan and Al for letting me hang out here this month.  I hope that those of you who have stayed for the whole ride through the field of veterans law have found some food for thought. 

I want to end back where I began, with the big picture.  Just three years before the Veterans Judicial Review Act ended the veterans benefits system’s splendid isolation from judicial review, the Supreme Court, speaking through Chief Justice Rehnquist, observed:

It is scarcely open to doubt that, if claimants [in the veterans benefits system] were permitted to retain compensated attorneys, the day might come when it could be said that an attorney might indeed be necessary to present a claim properly in a system rendered more adversary and more complex by the very presence of lawyer representation. . . .  And this additional complexity will undoubtedly engender greater administrative costs . . . .

Walters v. Radiation Survivors, 473 U.S. 305, 326 (1985).  Twenty-five years after the passage of judicial review, this prediction of Walters has arguably come true. 

There are plenty of problems to attack in veterans law, but the defining problem is too much complexity.  As I recently argued to the House Veterans Affairs Committee, the most important project for VA, Congress, and the stakeholders to undertake is trying to find a way to combat the excess of complexity.  It will be a phenomenally hard task.

The first element of the problem is simply reducing the rate at which complexity is growing in the system.  The ever-growing complexity of medical knowledge already drives an increase in complexity for a system that is based upon determinations of medical causation.  On top of that, there are the additional problems of attorney incentives to increase complexity and the political habit of “solving” problems by adding more rules, steps, and reviewers to the process.  Merely combating these forces will be a challenge.

The harder part of the problem is actually moving the needle in the opposite direction.  As J.B. Ruhl and James Salzman brilliantly illustrated in Mozart and the Red Queen:  The Problem of Regulatory Accretion in the Administrative State, 91 Georgetown L.J. 757 (2003), it is very, very hard to remove rules when each individual one can be justified on its own terms and appears to have a de minimus effect by itself.  Nevertheless, a problem of burdensome system effects is created by the accumulation of countless little effects that each seem reasonable in isolation.

The obvious way to avoid 10,000 fights over removing 10,000 rules is to start with a blank sheet of paper and build something completely new.  However, the stars have to align just right before you can throw out thousands of pages of statutes and regulations that have accumulated over a century.  Nonetheless, there is some hope that we might identify pockets of the system that could be rewritten.  Veterans law is not particularly modular, but you could begin the process of reinventing it by chunking it into manageable pieces:  pieces small enough to handle, but large enough to make a difference.

Even with much smaller blank sheets of paper, you must first take a careful look at your baseline assumptions.  Is the operational budget of the adjudication machinery taken as a given or a variable?  What about the number of employees performing each type of work?  What about the qualification of those employees ‑‑ should we continue to try to handle everything with non-attorney adjudicators on the frontlines?  What are the targets for processing time, accuracy, and granularity of outcomes?  These are really big questions that you need to at least begin to wrap your arms around, or your aim may well be either too ambitious or too limited.

Beginning to answer the big questions leads you back to the issue at the heart of veterans law:  What does it mean for the system to be veteran friendly?  Most of us would agree that the current system that is mercilessly mocked by Jon Stewart is not living up to that ideal.  However, we need to get past the negatives and have a positive discussion about what it is we want in our veterans benefits system and how much we are willing to invest to obtain it.  This might be the hardest step.

If we are to come to a new understanding of veteran friendliness, which recognizes the limits imposed by complexity and system effects without a crisis forcing a breaking point, then we need to start a robust conversation about the system now before the tide rises any further.  I firmly believe that the challenges of veterans law are not really that different from many others facing the legal academy, and therefore the academy can help a great deal. 

CFP: Wills, Trusts, and Estates Meets Gender, Race, and Class

Carla Spivack of Oklahoma City University School of Law has posted a call for papers for the conference “Wills, Trusts and Estates Meets Gender, Race and Class,” which will be in Oklahoma City on September 27-28, 2013. Cribbing now from the CFP:

This conference seeks to bring the insights of progressive property theory to the area of inheritance and succession law and will address the many points of intersection between inheritance law, gender and race, social structure, wealth inequality, domestic violence, and indigenous people’s rights, among others. Recognizing that inheritance law is a society’s DNA, the conference will present theoretical, historical, and practical approaches to ways it has and continues to maintain social structure and ways it can change it.

The deadline for proposals is August 1. Send them to cspivack[@]okcu.edu

I'm very much looking forward to returning to Oklahoma for the conference and to hearing the latest on how issues of race, class, and gender are important to trusts and estates pedagogy, practice, and scholarship.  I'm going to be talking about the trust for slavery and freedom -- that is, how the technology of trusts was used to manage enslaved human beings, to keep them out of the hands of creditors, and on occasion to free them.

The image is Robinson Hall at Washington and Lee University, which was built using money left to Washington College.  It's one of the images in my mind's eye when I think of fortunes left in trust.  I talk a little more about the story of Robinson Hall here.

Other Options for Improving Veterans Law?

One potential place to search for better ways to structure the veterans benefits system is to look at other countries.  Comparative veterans law could be an interesting topic, but I am aware of only one published article that touches on the subject:  Jeffrey Lubbers & Michael Asimow, The Merits of “Merits” Review:  A Comparative Look at the Australian Administrative Appeals Tribunal, Windsor Yearbook of Access to Justice 28, No. 2 (2010).  They examined the Administrative Appeals Tribunal in Australia, and suggested that the United States consider adopting a similar federal benefits tribunal of generalized jurisdiction.  Although they touched upon veterans claims, the bulk of their analysis focused on the Social Security administrative law judge system and not the Board of Veterans’ Appeals (BVA).

For me, the most striking aspect of their article was the resource allocation described.  Asimow and Lubbers noted in passing that the Australian system spends over $30,000 per appeal (assuming the recent average conversion rate of nearly one U.S. dollar to one Australian dollar), and that Australian administrative law judges who handle disability claims decide approximately 100 to 150 cases a year (per full-time equivalent, depending upon the rate of production of part-time judges).  Compare that to the Board of Veterans’ Appeals, which decides 800 appeals per judge, while spending less than $1,700 per appeal.  I imagine that if we started spending $30,000 per appeal and slashed caseloads by 80% or more, delays would plummet and satisfaction with the work product would likely skyrocket.  Given the massive differential in investment, though, I doubt that importing Australian institutions or procedures alone would produce better outcomes.

However, are there other options?  My sense is the veterans benefits systems in Europe are much less elaborate, perhaps due either to the fact that countries were in such disarray at the end of WWII or to the broader scope of their general social programs.  However, Great Britain adopted a new veterans benefits system less than a decade ago that deserves careful scrutiny.  (In fact, some of the procedures used in our current system were adopted in the 1950s after an examination of the British system at the time.)  The new British system seems to be a hybrid of a workers compensation system and a traditional disability benefits system.  Benefits for mild and moderate injuries must be claimed promptly, and result in lump sum payments with no further administrative overhead.  Severe injuries still result in long-term payments, but reevaluations are more difficult than in our current system.  How is this working and how much overhead does this save?  Those are answers that are very much worth explaining.

I think there is a lot that might be learned through comparative veterans law.  However, this is an endeavor that is harder than it first appears.  Substance, procedure, and investment in administrative overhead are all important ingredients of any legal system.  A good comparative study must look at all three elements to fully assess the costs and benefits of different options.

Where Are the Liberal Justices on Gay Rights?

In re-reading the marriage cases this afternoon, something struck me: where are the liberals?

There are six opinions in the two cases.  Justices Kennedy wrote the majority opinion in Windsor, with Chief Justice Roberts and Justices Scalia and Alito writing dissents.  Chief Justice Roberts wrote the majority opinion in Perry with Justice Kennedy writing the dissent.

The four liberals joined Justice Kennedy in Windsor but each was silent about their own thoughts.  Three of the liberals joined Chief Justice Roberts in Perry (Breyer, Ginsburg, and Kagan).  Justice Sotomayor joined Justice Kennedy's dissent.  Each was silent about their own thoughts on this case as well.

Why does this matter?  Presumably, at least one of these four has some view of the Constitution that endorses a more robust view of gay rights than Justice Kennedy.  Kennedy has certainly been a proponent of gay rights, but not in a way that has changed the level of scrutiny and put discrimination based on sexual orientation on par with discrimination based on sex or race, a central cause in current-day LGBT advocacy.  In fact, Kennedy hasn't ever been really clear about how exactly he is analyzing discrimination against gays and lesbians.  His opinions are full of lifting rhetoric, but are short on clear analysis that helps future litigants and judges.

Without any of the liberals writing separately, we don't have any official statement in the Supreme Court Reporter from any Justice arguing that sexual orientation discrimination in all of its forms is odious to the Constitution.  We don't have any Justice with a ringing endorsement of equality for LGBT people.  We don't have any Justice making the strong case for marriage equality.

By remaining silent, not only are the liberal Justices depriving us from learning their particular views, but they are depriving future litigants the opportunity to use their strong reasoning to further their cause.  After all, the logic in today's concurring opinions often becomes the logic in tomorrow's majority opinion.

What's even more troubling about this is that this appears to be a trend.  In its history, the Court has issued four decisions advancing the cause of gay rights -- Windsor today striking down DOMA, Perry today rejecting the appeal of the decision finding Prop 8 unconstitutional (I'll give the Court the benefit of the doubt here by calling Perry a case advancing gay rights), Lawrence 10 years ago rejecting Texas's sodomy statute, and Romer 17 years ago finding Colorado's Amendment 2 unconstitutional.

Combined in those cases there have been 12 separate opinions.  Not a single one was written by anyone to the left of Justice Sandra Day O'Connor.  (Kennedy has written 4 times, Scalia 3 times, O'Connor 2 times, and Thomas, Alito, and Roberts each 1 time.)

Of course, when it comes down to it, the liberals on the Court owe the public nothing other than their votes.  In that regard, this current batch of liberal Justices has reliably voted for gay rights since 1996, and that should be celebrated.

But, it really would be wonderful if one of them had stepped up with a resounding call for gay equality in any one of these cases.  Instead, all we get from them is silence.

Making Gay Marriage Pay: Pondering Economic Effects of U.S. v. Windsor

One of the interesting questions coming out of the Supreme Court's decision today in United States v. Windsor is whether states allowing gay marriage will reap an economic benefit for their local economies.  That is, how much additional Federal money will flow to those states as a result of having more married people?

This issue is similar to the question of how state decisions to adopt Obamacare Medicaid expansion will affect state economies.  A state that extends Medicaid will get 100% Federal coverage of that expansion initially, with 90% Federal subsidy after several years.  As anyone with a 401(k) knows, you say yes to the 100% employer contribution and  you stand on your head to find a way to accept the 90% employer contribution that requires a 10% match.  For a huge state like Florida or Pennsylvania, loss of the Federal match will amount to billions of dollars in lost investment in the state's medical industry.

My question is whether a state's decision to prohibit gay marriage will mean revenue loss to the state.  The most obvious site for this would be lost Social Security dollars if, for example, a surviving spouse would have received additional money.  I don't know if states banning gay marriage might miss out on Federal money in other ways as well.  

I'm guessing  the decision will have an impact on the tax revenue side as well - the marriage tax and all that. 

My colleague Norman Stein indicates that this decision will have significant impact on ERISA-related pension and benefit issues...everything from death benefits to tax protection ERISA-covered health care plans.  And it's hardly just a prospective matter: the issue of retroactivity of the decision may end up being a huge, financially consequential battle.  What about a person who died last month while legally married to their same-sex spouse?  Does that spouse benefit from Windsor?

For activists, Windsor may be a civil rights decision.  For lawyers in the trenches, however, it's also a trove of important legal issues just waiting to be litigated.

Empirical Legal Studies Conference Extends Call For Papers

The organzicers of the 8th Annual CELS conference (which will be held in Philly this October) have extended the deadline for submission of papers.  It is now Friday July 12, 2013, at midnight.  Submit papers here.

Attorney Fees: What is Different Work?

When I discussed incentives, I addressed one important aspect of how the attorney fees drive the system toward more procedural complexity.  However, I omitted a second, key aspect of attorney fees in veterans law:  how the case law makes it financially difficult for lawyers to actually help veterans.

If you are trying to build a veterans law practice, then you have two potential sources of income.  The first is Equal Access to Justice Act (EAJA) fees available at the U.S. Court of Appeals for Veterans Claims (CAVC), and the second is contingency fees available if a claim is granted by the agency.  The problem is that you cannot keep both in the same case.  A majority of the CAVC held in Carpenter v. Principi, 15 Vet. App. 64 (2001) (en banc), that work at the court and work at agency level are part of the same ball of wax, so that if you are an attorney, you have to offset your EAJA award against any contingency fee that you might earn.  In fact, the court cited the Gardner presumption of veteran-friendly interpretation to conclude that it would be unreasonable to allow attorneys to keep EAJA awards that rightfully belong to veterans.

Although the holding in Carpenter was meant to be veteran friendly, in actual practice it is not.  I go through the math in some detail elswewhere, but the basic problem is that if an offset is always required, then a great many veterans claims are not worth enough for an attorney to continue representation after collecting an EAJA fee because the attorney is essentially working for free or peanuts from that point onward.  Of course, such representation is noble work, but you cannot eat nobility nor pay your staff with it.  Through my work with the CAVC Bar Association, I know a great many attorneys who handle veterans claims.  They are uniformly great people, but most of the work they do has to generate income to pay the bills.  The effect of Carpenter has been to create a dramatic decline in the percentage of veterans who have attorney representation at the agency level.  This is terrible because that is the point at which an attorney is most needed. 

Having a skilled attorney obtain a procedural remand from the CAVC just prolongs the agony if a veteran with a difficult claim does not have assistance at the Board of Veterans’ Appeals level in developing the evidence needed to prevail on the claim.  A rule that strongly discourages attorneys from continuing representation until the claim is resolved is not veteran friendly.  Accordingly, Carpenter should be overruled or abrogated, and replaced with a rule that says that if a lawyer stays with a case on remand to where the record is open again and assists him or her in submitting new evidence that leads to benefits, then that is different work and the contingency fee will not be offset by any EAJA award. 

However, creating a fee system that is tailored to the veterans benefits system is a much bigger project than just fixing Carpenter.  EAJA is not a comfortable fit for the system.  In most courts of general jurisdiction, it is construed narrowly to limit the incentives of third parties to attempt to run agencies through litigation.  At the CAVC, the statute is interpreted very broadly to encourage attorneys to represent veterans.  In fact, almost every single decision by the CAVC that is not an affirmance leads to an award of fees.  Although the court has artfully cherry-picked from binding Supreme Court case law, I suspect that a thorough analysis would show that “prevailing party” and “substantially justified” are interpreted very differently in veterans law cases than they are anywhere else.

I am certainly not advocating reconciling EAJA case law by making fees dramatically harder to obtain in veterans cases.  I do not think there is any question that Congress wants to encourage such representation and that attorney appearances would dry up without the fees provided by EAJA.  Instead, I am suggesting removing the veterans benefits system from EAJA altogether, and replacing it with a system tailored to the types of activity that we want to encourage.

The number one activity we want to encourage is making it financially attractive for attorneys to help veterans develop the evidence needed to bring resolution to their claims, instead of fostering a system of procedure whack-a-mole.  I am not sure exactly what such a system would look like, but I have taken a first crack at the problem in my prior work.  Still, there is a lot that could be written in this area about EAJA, veterans law, and using fees to align the incentives of attorneys and veterans.

Justice Alito And The 3/256

In today's decision, Adoptive Couple v. Baby Girl, the Supreme Court held that the Indian Child Welfare Act did not apply to the particular facts of a case where a biological father sought to block adoption of his daughter.  The dad is a member of the Cherokee Nation and there was no dispute that the child he had with a non-Indian mother was nonetheless subject to the the ICWA.  But I sensed that it  irked Justice Alito that the child was  subject to a law designed to protect the Native American community because on two occasions in the opinion he noted that the little girl was  3/256th Cherokee - notwithstanding the fact that this detailed fact added nothing to the opinion.

(Justice Sotomayor, in her dissent, noted these mentions, saying  "the majority’s repeated, analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee by ancestry do nothing to elucidate its intima­tion that the statute may violate the Equal Protection Clause as applied here.")

Perhaps Alito was being strategic, thinking references to fractional human identity would trigger bad memories of the Three Fifths Compromise.  Or maybe it was just him being churlish, in the same way he apparently behaves when certain liberal Justices read their decisions or dissents in open court.

Let It Be Noted ...

... that in his opinion in the Fisher affirmative action case today, Justice Thomas cited Korematsu v. United States approvingly (or at least without hinting disapproval).

Back in 2004, in the Hamdi case, Justice Thomas cited Hirabayashi v. United States approvingly.

No big deal.  This doesn't portend a rehabilitation of these discredited opinions.  The sky isn't falling.

It's just ugly, that's all.  Ugly.

Article I Appellate Review, Waiver, and Evidence Outside the Record

How different can an Article I appellate court be from a traditional appellate court?  One way to look at it is to question when such a court can have unique doctrines that bend the traditional rules of appellate review to fit its own circumstances.

One of the aspects that makes the United States Court of Appeals for Veterans Claims (CAVC) unique is that it has never had a judge who was previously a member of the body it reviews, the Board of Veterans’ Appeals (BVA).  This means that the two bodies do not have any common frame of reference.  Unlike most appellate courts, where there are usually several former trial judges who can read between the lines of a transcript and know what happened off the record, the CAVC has never had a judge who could place BVA decisions in their native context.  This creates an unusual information gap that sometimes makes it difficult for the two bodies to effectively communicate with each other through their written decisions.

This lack of a common frame of reference is exacerbated by the fact that most appellants that the court sees were not represented below and therefore did not have expert assistance in properly developing their arguments.  This problem was particularly acute during the first decade of the CAVC’s existence.  The court’s first chief judge once described it in his “State of the Court” address by comparing the review of a pro se appeal to watching “a good tennis player who’s pitted against a novice.  Can’t play worth a damn.”  Accordingly, the CAVC has been forced to turn to other sources of information about agency operations to assist in review.

Even when there is a lawyer, a typical CAVC appeal involves a veteran who has attorney representation with the claim for the first time at the court level.  As I have discussed earlier, in most cases, the attorney has no choice except to argue that a procedural remand requires an error.  How exactly can the attorney (or the court) know which procedures were applied within the agency?  Major procedures are defined by regulation.  However, many smaller bits of procedure are not so clearly defined.  Some are documented in VA’s procedure manuals, but what about procedures that are not, or that are particular to one facility?

Historically, it has been common for VA to use affidavits from employees to explain to the courts procedures that are not documented in easily accessible regulations or manuals.  However, the Federal Circuit very recently held in Kyhn v. Shinseki, ___ F.3d. ___, 2013 WL 1846562 (Fed. Cir. May 3, 2013), that the CAVC cannot consider such evidence because it is not properly part of the record.

What is unstated in Kyhn is that the reason that the CAVC has historically allowed such evidence is that it rarely finds issues to be waived by pro se appellants.  In most courts, the burden is on the appellant to make a record below so that the court has something to review.  However, such a rule simply does not make much sense at the CAVC, due to the fact that its appellants have historically not had attorney assistance below.  In order to entertain issues that would have been waived in any other system, the court has also permitted the Secretary to explain the applicable procedures by affidavit when necessary.  Perhaps not by coincidence, the Federal Circuit decided Parks v. Shinseki, ___ F.3d. ___, 2013 WL 1846570 (Fed. Cir. May 3, 2013), on the same day as Kyhn.  In Parks, the court held that the veteran had waived a procedural challenge by not developing it at the agency. 

Together, Parks and Kyhn would make sense for a regular court.  They represent the typical system in which issues must be raised and developed so that an appellate court has a proper record.  Unfortunately, the veterans benefits system is not a typical system.  It was clearly the intent of Congress that the CAVC should be scrutinizing VA’s procedures and its fidelity to them.  However, the practical realities of a system in which attorney involvement is rare prior to a court appeal make it difficult to see how the court will be able to fulfill this role if it cannot consider procedural issues that were not fully developed below. 

Perhaps the problem is strictly statutory.  It is up to Congress to recognize when an Article I court needs special rules to accommodate its unique mission.  As Michael Allen has suggested, maybe it is time for Congress to reconsider the whole structure of judicial review now that we have twenty years of experience upon which to reflect.  However, reconsidering the structure of judicial review in veterans law begs a larger question:  What exactly is the role of the courts, and can they fulfill that role based upon the characteristics of the cases that are actually appealed to them?  There are a lot of hard philosophical and empirical issues packed into that question, but they are ones that are well worth investigating.

Aric Short Named Interim Dean Of Texas Wesleyan Law

Texas A&M is working furiously to finalize its acquisition of Texas Wesleyan University School of Law.  Among other things, it is seeking a speedy accreditation approval fom the ABA.  Meanwhile, Texas Wesleyan has named its associate dean, Aric Short, to the position of interim dean of the law school.  Short holds a JD from the University of Texas.

Fisher v. Texas: How a 4-4 Opinion Becomes a 7-1 Landslide

A 7-1 opinion in an affirmative action begs explanation beyond the holding itself.  The best I can do is offer reasoned speculation.  As I noted earlier today at Education Law Prof Blog, the Court neither upheld nor struck down the Texas higher education admissions policy in Fisher v. Texas.  Instead, the Court said the lower court was too deferential in reviewing Texas' admission policy and must take another more rigorous review of the plan.  Because the Court did not affirm the lower court and uphold the plan, the result in Fisher suggests hostility to affirmative action.  Yet most affirmative action advocates expected a much worse result, particularly if Justice Kennedy was to write the majority opinion.  With Justice Kagan on the sidelines, there was no way to 5 votes to uphold the plan in its entirety, even if the three liberals could convince Justice Kennedy. So the only way Justice Kennedy writes a majority is if he is dancing on affirmative action's grave.  Wrong.

The final opinion was not even close, and Justices Sotomayor and Breyer join the majority in overturning the court of appeals and sending it back.  The fact that they joined the majority, and only Justice Ginsberg dissented, belies an unexpected message: the Fisher majority written by Justice Kennedy is not the end of affirmative action in higher education.  Justices Breyer and Sotomayor would have never signed onto to the end of affirmative action, but they signed onto this opinion.  So how did they get there?  Presumably with a lot of jockeying to save affirmative action in higher education through indirection.

My best guess is that the initial vote as to whether to gut Grutter entirely was 4-4, with Kennedy refusing to go that far.  A 4-4 split was my best case scenario for Texas heading into the case.  This 4-4 initial vote is a relatively solid thesis now.  In the case of a 4-4 tie, the lower court would have been upheld and nothing at all would have changed.  This clearly would have incensed the 4 most conservative members of the Court.  And even though Justice Kennedy may not have been prepared to completely end affirmative action, maintaining the status quo was not his desire either.  My hope and intuition before the case was that he might hate the end of affirmative action in admissions more than the continuation of the status quo.  But, of course, he is smarter than me and the final opinion and vote in Fisher suggests a compromised third position for Justice Kennedy: join the majority and bring two dissenting liberals with him, so that he would be in a position to write the majority.  This had the effect of putting Scalia and Thomas in the disgruntled concurring camp, rather than more squarely in control of the majority.

And that is how sausage and Supreme Court opinions are made--I assume, since I know nothing directly of either.  And like much leglisative sausage, this may be an opinion strong on symbolism and weak on effect.

Transparent vs. Black Box Decisions

The U.S. Court of Appeals for Veterans Claims (CAVC) fully affirms only about 25 to 30% of the Board of Veterans’ Appeals' (BVA) decisions that it reviews.  That is not a new phenomenon; it has been true for at least a decade, if not the entire existence of the court.  If it sounds abysmal, it is.  Appellate courts typically affirm 60 to 70% of the decisions that they review.  Even Social Security decisions are affirmed almost 50% of the time.  Why is the rate of affirmance by the CAVC so low?

A lot of it has to do with the transparency requirement for BVA decisions.  The BVA is not a jury.  It cannot simply announce a verdict and be done.  It must provide adequate “reasons or bases” for it decisions.  As I have explained in more detail elsewhere, this is a very demanding requirement that was established during the early days of the CAVC for unique, historical reasons.  In application, this transparency requirement means that the BVA must address every single issue raised by the claimant or reasonably raised by the record.

What does that mean in practice?  I have already noted the complexity of the law.  Let us take a look at the application.  If you are a member of the BVA, then you will probably sign about 800 decisions a year, or about four every business day (given that many days are spent holding hearings and doing all the ancillary tasks that come with any job).  That means each day, you have to make sure you address not only every argument raised by the veteran, but also every issue reasonably raised by a stack of files that often looks something like the one pictured here to the side.  Two volumes is a fairly typical size for a claim seeking a single benefit, and three or more is quite common.  That is a lot of pages to get through in two hours or less.  Moreover, the typical decision does not address only one disability, but two or three (or eight or twenty).  Not only must the file be reviewed, but every relevant piece of evidence must be thoroughly addressed in terms of the weight being assigned to it for each of the benefits at issue.  As the CAVC has repeatedly stressed, merely listing the evidence and announcing a decision is not a proper analysis.

So what are the odds that a veteran’s attorney who spends a day or more with the file will find a relevant nugget in the file that was not clearly addressed in the BVA decision?  Judging by the remand rate from the CAVC, the answer is pretty high.  Moreover, in many cases, the basis of the remand is not a piece of evidence that was entirely overlooked, but rather one that was not discussed to the satisfaction of the court.  In other words, a main driver of the remand rate is not outcome-determinative errors, but insufficient-transparency errors.

The fact that the remand rate has been so high for so long suggests that there is a deep structural issue about the transparency requirement that needs to be faced.  But what is it?  It is not easy to tell.  In an ideal world, it would be possible to try different solutions and see what happens.  The ultimate metrics are time and outcomes.  You could try different options, see if the outcomes of the claims changed, how long the decisions took, and what the comparative costs are.  Of course, we do not live in an ideal world, so it is really hard to figure out the cost/benefit curve for the all the different options we could try.  Given that reality, what options should we try to improve the BVA’s performance and how should we measure success?  This is a ripe field for discussion.

New Statistical Evidence Shows Ancient Book May Have Meaning

The BBC has an fascinating story today about the Voynich Book, a book dating from the early 1400s written in an unknown language.  Since no one has yet been able to decipher the language in which the book is written, controversy has been raging for years about whether the book is a hoax or was written in an unidentified language.  Another possibility is that it has meaning but has been encrypted.  New statistical evidence suggests that the words appear in patterns that are similar to those in other languages.  One of the authors of the new study, physicist Marcelo Montemurro, believes this evidence all but rules out the possibility that the book is a hoax, although other scientists disagree. 

It does seem like a lot of trouble to go to create a hoax, and for some reason I have a preconceived idea that elaborate hoaxes are a more recent phenomenon.  At any rate it's an interesting read and makes me hunger to learn more about statistics for yet another reason. 

Thinking About Slavery At William and Mary

I'm delighted to report that Terry Meyers' article, "Thinking About Slavery at William and Mary" is now out in the William and Mary Bill of Rights Law Journal.  

While there's been a lot of talk about W&M in the years leading into Civil War and their faculty's writing about the virtues of slavery, Terry goes back to the eighteenth century and shows that the story was much different then.  He discusses the anti-slavery ideas in circulation in Williamsburg in the eighteenth century.  Every time I look at this history I am reminded of how much things changed from the 1760s to the 1850s, and not for the better.

Terry's article shows once again how important the history of higher education is, how it's all too frequently ignored, and how it can help us understand a lot of what happened beyond the walls of the academy.

You can read all of the articles in the most recent issue of the William and Mary Bill of Rights Law Journal here.

The Chicagoan: An Amazing Knock-Off Of The New Yorker

Once in a while you discover a nugget of culture that makes you double-take.  So it is with the publication, The Chicagoan - a spittin' image knock-off of the New Yorker that published in the 1920's and 1930's.  The University of Chicago library has digitized the entire collection - God bless 'em - and you can view issues here.

Thanks are apparently due to Emeritus Professor Neil Harris who discovered old issues in the U of C library stacks back in the 1980's and subsequently published the book The Chicagoa: A Lost Magazine of the Jazz Age.

The New Yorker carttons and columns, and the slightly altered Topics of the Town - you just don't see the appropriation of another magazine's entire guts every day.  It makes Us and People look like different genres!

For people who like looking through old stuff, and especially people with ties to Chicago or a passion for that era, I present to you hours and hours of entertainment.  

The Latest on the New Constitutional History

Risa Goluboff's essay review of Ken Mack's Representing the Race, "Lawyers, Law, and the New Civil Rights History,"  has just appeared in the June 2013 Harvard Law Review.  While much of the essay is about Ken's book, Risa links Representing the Race to a series of works over the past decade or so that deal with civil rights history and constitutional law broadly conceived.

In the new civil rights history, lawyers — many and diverse lawyers — serve as intermediaries. The new field thus responds to a call Professor Hendrik Hartog made over twenty-five years ago to wed social and legal history by exploring the lived constitutional experiences of laypeople. Recent civil rights historians have heeded that call, and they pick up specifically on a minor strain in Hartog’s article that linked lay legal experience with formal legal processes. Constitutional history, Hartog wrote, “requires a perspective wide enough to incorporate the relations between official producers of constitutional law, and those who at particular times and in particular circumstances resisted or reinterpreted constitutional law.” Hartog suggested that “[l]awyers’ categories, formal legalistic language, [are] important subjects of study, but as translations and as mediations of aspirations and claims, not as the ends of inquiry.”

This is where the new field has gone. It practices a history that emphasizes connections between laypeople and formal law — one that understands lawyers as mediators, facilitators, and gatekeepers. Lawyers have their own interests and constraints, but they also interact with myriad other actors in the process of creating legal change. That is not to say that the new literature treats lawyers as ciphers, merely offering courts whatever claims clients press. They choose, reject, shape, and transform those clients and their claims just as those clients and their claims transform and interrupt lawyers’ ideas about law and legal doctrine. ...

Read the rest of this important and useful essay here.  I'd add that the expanded scope of constitutional law -- that looks to the ideas of people outside of the courts and even outside of the legal system -- is rippling through all of American thistory, especially the years leading into Civil War, the War itself, and of course the era of Reconstruction.

The image is of the monument to African Americans at the South Carolina capitol grounds in Columbia.