Veterans Law, Jon Stewart, and a Challenge for the Legal Academy

First, thanks to Dan and Al for having me here for a while. 

Let’s start off with the obvious question of what is “veterans law,” anyway?  You will be forgiven if you have no idea how to describe it off the top of your head.  Veterans law is not featured at most law schools for the simple reason that veterans benefits claims were immune to judicial review for the first 200 years of our history.  Since the Court of Appeals for Veterans Claims started operations in 1989, there have not been that many practitioners, nor much time for them to migrate to the academy. 

If you were looking on the categories listed to the left side here, you might place veterans law into “Stuff You Cannot Categorize.”  Michael Allen likes to refer to it as a platypus, and that analogy has a lot of power.  You can look at veterans law as a strange collection of parts that each evolved in isolation to solve familiar problems.  Somehow it manages to persist and function even though the sum can appear bizarre.  On closer inspection, though, it is not so strange.  In practice, it is a mixture of administrative law, torts, and evidence, with strong undercurrents of civil procedure and due process.  Whether its unique approaches to these areas can be justified as better serving veterans is something that independent legal thinkers could be tremendously helpful in determining.

This is why veterans law is an interesting and important challenge for the legal academy.  It is a legal system that is not functioning well, even though there are no ideological differences to frustrate the execution of the mission.  On the surface, it is composed of countless “veteran friendly” rules and procedures, yet the total is far less than the sum of its parts.  Despite the best of intentions, it suffers from severe system effects. 

Accordingly, it is a system that is in desperate need of experts in the underlying areas to examine how the system handles evidence, causation, pleading, discovery, separation of powers, and many other issues.  Jon Stewart nicely expressed the point I have been making for years:  The veterans benefits system is crucial to anyone who supports a substantial role for the administrative state, because if you cannot make this system work with all the political support and funding it has, then how can you expect anyone to believe that government can solve actual controversial problems?

The Daily Show with Jon Stewart
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While I am here for the next four weeks, I want to explore how the system works and what might be learned from related areas of law.  Before I dive into the current issues, I will provide some background, including a couple of days on the tumultuous historical path leading to today’s system, and then an outline of how the system presently works.  Finally, I will spend the majority of my time highlighting important aspects of the system and what issues could use more study by those with an outside perspective.

So this is it in a nutshell:  Veterans law is the litmus test of whether the modern administrative state is the solution or the problem.  Even if we did not owe our most sincere efforts to the men and women who have given so much in service, that challenge would be reason enough for anyone with an interest in legal theory to consider what can be done to make the system not just functional, but exceptional.

 Note:  These writings are made in my personal capacity, and are not to be construed as attributable to the Department of Veterans Affairs, the Court of Appeals for Veterans Claims, or other entities.

Comments

[Matt]

I'm looking forward to this, James. When I was clerking I worked on a few veterans affairs claims (while the judge for whom I was clerking was sitting by designation on the fed circuit.) I found them to be among the most confusing and difficult cases we worked on. The clip from John Stuart made it seem like the main problem is a lack of resources, and perhaps that is the most important problem. But, for the cases I worked on, it seemed like one of the big problems was that the lower-level proceedings were supposedly "non-adversarial", and so the people seeking benefits of some sort were not represented, but then, because of this, and the confusing nature of the process, they often had not done what they would need to do to make a successful claim later on. On top of that, it seemed as if the Fed circuit had tried to carve out a number of exceptions to the generally pretty strict rules in a way that was understandable, but made the law seem extremely ad hoc and unprincipled. (This was understandable because the underlying law was so unreasonable in many cases, it seemed.)

But, I only worked on a few cases, and haven't tried to look at the relevant law since, so I'll be very interested to see your analysis, and if it fits at all with how things seemed to me.

[Anon]

You might be interested in exploring how relevant legal clinics are part of the picture:

http://www.law.pitt.edu/alumnispotlight/veteranslegalclinic

[Adam Zimmerman]

I'm also looking forward to reading your posts, James.

[James Ridgway]

Matt: I'll have more to say about the resource issue later. However, having listened to all the veterans law arguments at the Fed. Cir. in the last eight years, I'm not surprised that you found the cases confusing. A central problem with the system is the disconnect between all the bodies of review. The Fed. Cir. has never had a veterans law practitioner appointed to it. The CAVC has never had a member of the Board of Veterans' Appeals appointed to it. Regional office staff essentially never move to the Board because the RO adjudicators are not attorneys but Board members and staff are. If I could snap my fingers and change one thing about the system, it would be to create a career path that allows folks to move around the system and spread institutional knowledge so each body understands the others much better. Despite the great intelligence and best intentions of all involved, a lot gets lost in translation when the system is essentially a giant game of telephone.

Anon: I am actually familiar with many of the (mostly new) clinics and I have met the directors of several of them. There was even a student from the Pitt clinic at the recent CAVC judicial conference. I won't have much to say about clinics here, but it will be interesting to what niches they carve for themselves.

[Matt]

Thanks, James. I've joked for some time that the Fed Circuit should be re-named the Court of Appeals for Esoteric Law, given its review of several unrelated but highly specialized areas of law. I'll look forward to more of your posts, and learning more about the system.

[Dale Burnell]

Adam: You're absolutely right about the loss of institutional knowledge. During my career, the downward spiral started in the 90s with downsizing and the offer of early retirement to many of the most knowledgeable VA career professionals. During the first decade of the 21st century and continuing now, many Vietnam-era employees have qualified for full retirement and are taking their knowledge with them. VA has exacerbated the problem with its attempts to tackle the backlog. VA believes, perhaps rightly, that "specialization" by employees will streamline the process and move cases through the system faster. But one of the results is that the right hand doesn't know what the left hand is doing. This is why you have to make so many phone calls to find just the right person who can answer your question.

When I first started my VA career at the Washington Regional Office, I worked rating cases, education cases, burial claims, Voc Rehab, character of discharge, you name it. Now, VA has specialized regional offices and the employees within them. Trying to "learn the system" is nearly impossible. And most current managers in the field have no rating experience.

[Jeff Matthews]

The problem with the current approach (and it is the same in Civil Litigation as well) is the constant pressure to refine each element into sub-elements, layer - by layer - by layer. Take, for instance, Daubert as regards expert witnesses. That single case, together with its progeny, has made hiring, qualifying and preparing experts a tedious, detail-oriented process. The path is being laid for a new obstacle around every corner. The more you try to fix a problem with a new rule, the more new problems you get.

As regards administrative VA cases, there would be a lot to consider as potential positives if you just handled them like "Judge Judy" cases. Less bureaucrats, less money on the bureaucratic cost, and more of the budget on actual benefits where they are due. Scrap the layers. Provide one simple form. Hear the case within 60 days.

Disclaimer: I am unfamiliar with this body of law, so take my thoughts for what they are worth.

[James Ridgway]

Jeff: But where does that pressure to create rules come from? In part, it comes from pressure to make sure similarly situated claimants get the same outcome. How do you dramatically trim down the rules without leading to situations where the adjudicators who have lots of discretion end up treating similar veterans differently?

There was less discontent with inconsistent results decades ago when few knew what was going on outside their own claim, but in the internet age, people will quickly discover when different regional offices (or even different claims adjudicators) are producing inconsistent outcomes. I think the same is true for law in general.

How do you structure the system to be simple, produce consistent results, and provide benefits that are tailored to circumstances of the individual?

[Jeff Matthews]

James, that is a good question. It is my honest belief that consistency is not directly proportional to the number of rules. I believe that some amount of rules are necessary to try to formulate some common methodology to particular problems, but beyond that new rules generally come with marginal benefit.

Take, for example, divorce cases with child custody and support issues. Before the age of computers, a typical decree, complete with provisions for visitation, was maybe 3 pages. The language used was very broad and general. Then came the dawn of the computer era. In an effort to reduce the amount of litigation, all kinds of clauses were added, such as "Upon returning the child at the conclusion of each period of possession, Respondent shall surrender the child at Petitioner's residence, together with all the possessions which were on the person of the child or taken with the child when the period of visitation commenced." Rather than reduce litigation, as it was believed it would do, it fomented it. Now, we have 50-page divorce decrees and more litigation over them, rather than less."

My recommendation of the "Judge Judy" method did not mean "go lawless." It did imply to go with a far more simplified body of law. Any person not satisfied with "Judge Judy's" ruling could have the right to a de novo hearing before a panel of 3. The idea here is that most cases are probably ruled upon reasonably correctly (i.e., to the litigant's reasonable satisfaction or at least, understanding) with or without 10 volumes of statutes and case law. Let the bulk fly through the system quickly. The others which are suspect can be put on the slower track by way of the de novo process.

[Jeff Matthews]

Looks like my reply was eaten somehow.

James, I believe there is a point at which more rules produce a rapidly diminishing return as regards consistency. Just about every rule is laden with some sort of "soft" standard, such as "reasonably," "seasonably," "in good faith," etc.

But let's assume refinement can have some added value despite the issues which it creates. Another set of problems with too much detail is that it foments litigation. Before computers, a divorce decree, complete with provisions for child visitation and custody, was maybe 3 pages. Obviously, there was a lack of details which required some further litigation down the road from time to time. Then, came the computer. As a result, a 3-page decree quickly became a 50-page decree. All kinds of minutia were added, such as, "Upon returning the child at the conclusion of each period of possession, Respondent shall surrender the child at the residence of Petitioner, together with all possession which were on or taken with the child at the time Respondent's period of possession commence." This provided fuel to fan the flames of the fire. There is now a lot more litigation for failure to comply with minutia.

My suggestion to use the "Judge Judy" approach was to state that the rules not to be cut down to a very basic set. Then, there could be the right of a de novo hearing before a panel of 3 if the litigant is dissatisfied with the judge's ruling. In probably the overwhelming majority of cases, the litigant are going to be reasonably contented (or at least understanding) of the judge's ruling. There is no need to put all cases down the slow path. Let the majority zip through the system quickly, and reserve the slower track for the de novo hearings.

[Brad]

Jeff, James: VA law might provide an interesting petri dish for studying the rules-v-standards question, because issues that are highly rule-based sit alongside issues that are entirely standards-based. Medical evidence is highly rule-based, for example, while determining character of service has neither rules nor well-developed standards. VA claims might actually provide an interesting controlled experiment for evaluating claimants and outcomes in these different kinds of issues, if some law prof were so inclined...