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Some behavioral implications of legal reform

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Some behavioral implications of legal reform
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Chaires, Robert H
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xii, 265 leaves : ; 29 cm

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Includes bibliographical references (leaves 249-265).
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Submitted in partial fulfillment of the requirements for the degree, Doctor of Philosophy, Public Administration.
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by Robert H. Chaires.

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Full Text
SOME BEHAVIORAL IMPLICATIONS OF LEGAL REFORM
by
Robert H. Chaires
J.D., University of Denver, 1982
A dissertation submitted to the
Faculty of the Graduate School of the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Doctor of Philosophy
Public Administration
1995


This Thesis for the Doctor of Philosophy
degree by
Robert H. Chaires Jr.
has been approved for the
Graduate School of Public Affairs
Date


Chaires, Robert Herald, J.D. (Ph.D., Public Administration)
Some Behavioral Implications of Legal Reform
Thesis directed by Professor Mark Pogrebin
ABSTRACT
Legal reform in substantive and procedural law has occurred
throughout American history and has occurred in both the
civil and criminal dimensions of law. Depending on
political perspective, such reform can be considered
evolutionary, devolutionary or even revolutionary. In the
Kuhnian sense, some contemporary legal reforms in civil and
criminal procedure can be conceived of as substantially
contributing to a paradigmatic shift. That shift is in the
direction of a dominant perception that the American courts
cannot and should not be used as a forum for the
establishment and vindication of individual rights and
social values. In a behavior of law perspective two
contemporary legal reforms, "sanctions" and application of
the "cause and prejudice" test to abandonment in federal
habeas corpus, are analyzed in the context of civil rights
litigation and criminal justice. Various perspectives as
to why the express intent behind such legal reforms differ
from their behavioral impact are also presented and
discussed. Three conclusions are reached. The first is
that civil sanctions behavior operates to increase the
likelihood that civil rights attorneys advocating changes
in the status quo will be punitively sanctioned. The
second is that criminal procedure reform in general has
encouraged improprieties in law enforcement practices and
that reform in habeas corpus has made it more difficult.to
discover and remedy those practices. Finally, in
combination, certain legal reforms have had an adverse
impact on the ability of marginalized individuals and
groups to control discriminatory practices and policies in
criminal justice through the venue of the courts.
This abstract accurately represents the co:
candidate's thesis. I recommend its
of the
in


CONTENTS
CHAPTER
1. INTRODUCTION .............................. 1
Statement of Problem .................... 1
Methodology ............................. 2
Defining Civil Law Reform ............... 4
Contract Law .......................... 6
Tort Law .............................. 6
Damages ............................... 8
Civil Law and Civil Rights .............. 9
Nonmonetary Remedies
in Civil Rights ...................... 11
Types of Civil Law Reform ............ 12
Removal .............................. 13
Caps ................................. 20
Fee Shifting ....................... 23
The American Rule .................... 24
Negotiation and Litigation Under
The English Rule ..................... 25
The Impact of Loser Pays ............. 26
Enter Sanctions ........................ 27
Defining Criminal Procedure Reform .... 28
IV


The Context of Early Criminal
Procedure Reform ....................... 29
The New Reforms ........................ 30
Expansion of Federal Police Power ... 30
Lessening Burdens of Proof .......... 31
Limiting Habeas Corpus .............. 34
The Evolution ....................... 35
The Fall of Habeas Corpus .............. 3 8
Conclusion ............................. 3 8
Chapter 1 End Notes .................... 39
CHAPTER
2. DEFINING "BEHAVIORAL IMPLICATIONS" ....... 45
A Context for Paradigms ................ 47
The Meaning of "Paradigm"........... 49
The Paradigms of Social Science ..... 50
The Paradigms of Law ................... 51
Models and Paradigms of Law ......... 52
The Limits of Legal Theory........... 54
Figure 2.1: Matching
Paradigms and Models ................ 55
Why a Behavioral Perspective ........... 57
Explaining the Behavior of Law ......... 58
Downward Law is Greater than
Upward Law .......................... 58
v


Law Varies Directly With Culture .... 59
The Implications of the
Behavior of Law ....................... 61
Legal Reform as Legal Behavior ........ 62
Alternative Perspectives ............ 63
Coming Together: Paradigm Shifts,
Legal Reform and the Behavior of Law .. 65
A Framework for Change in Judicial
Decision Making ....................... 67
Social Considerations ............... 70
Rejecting the Pendulum .............. 72
Chapter 2 End Notes ................... 75
CHAPTER
3. THE MOTIVES OF REFORM .................... 77
Some Historical Perspectives ......... 77
Abuse of Process and Malicious
Prosecution as Early Torts .......... 78
Early Court Power to Sanction ....... 80
Early Statutory Authority to
Sanction ...................... 81
The Early Rule 11 ................... 82
"Bad Faith" as a Sanctioning
Requirement ......................... 83
The Due Process Perspective ......... 83
Distinguishing The Courts' Contempt
Power ............................... 84
vi


Federal Court Rule-Making ............. 85
Enabling Act of 1934 ................ 87
Limiting Federal Judicial Review ...... 88
Expanding and Contracting Federal
Judicial Review ..................... 91
Frivolous Claims and the
Rise of FRCP 11 ....................... 92
The Forces of Change .................. 97
Tort Reform Perspectives ............ 96
Judicial Control Perspectives .......101
Controlling Abusive Conduct ........ 104
Looking at the Numbers ............... 106
Federal Court Load Circa 1982 ....... 107
Federal Court Load .Circa 1993 .... 108.
Comparison ......................... 110
The Enactment of Amended Rule 11 ...... 112
Congressional Intent in Amended
Rule 11 .......................... 113
The Actual Construction of Amended
Rule 11 .............................. 115
Chapter 3 End Notes .................. 118
CHAPTER . .
4. THE BEHAVIOR OF REFORM................. 120
The Behavior of Rule 11 .............. 121
The Supreme Court and Sanctions ...... 124
vii


Satellite Litigation ............... 125
Measuring Actual Usage ............. 126
Conflict on the Utility of Sanctions 128
How Cold is Chilling? .............. 129
Rule 11 and Civil Rights Litigation .. 132
The Ambiguity of Civil Rights ........ 134
Symbolic Litigants in Civil Rights
Litigation ......................... 137
Attorney Involvement in
Civil Rights. Litigation ........... 13 8
The Courts and Civil Rights
Litigation ........................... 141
The Myth of Conservative v.
Liberal Judges ..................... 143
A Framework for Analyzing Judicial
Conservatism ......................... 145
Appealing Sanctions .................. 147
Sanctions and Civil Rights ........... 149
Criminal Justice and Sanctions ..... 150
Civil Rights Litigation
and Congress ......................... 152
Private Attorney Generals .......... 154
Expanding and Contracting
"Prevailing" ....................... 156
The Almost Reform of Rule 11 ......... 157
The Early Movement for Change ...... 158
viii


Chapter 4 End Notes ................... 164
CHAPTER
5. THE INTERSECTIONS OF REFORM ............. 166
Criminal Procedure 1786-1986 .......... 168
The "Due Process" Revolution .......... 170
Intersection ...................... 171
From Mapp to Katz ................... 171
The Symbolism of Katz ............... 174
Intersection ...................... 175
The Post-Modern Era .................. 176
The Current Status of Balancing ...... 178
Pretext .............................. 179
Expanding Pretext .................. 180
. Closing Other Doors ............... 181
Evolving the Not So Modern
Post-Modern Law .................... 182
Illusion ............................. 182
A Practical Redefinition of the
4th Amendment ...................... 184
Beyond Suspicion ................... 185
Sleight-of-Hand .............. .. 187
The Final Step ..................... 188
Intersection ..................... 190
The Question of Appeal ............... 190
IX


Limiting Appeals .................. 192
Criminal Conviction ............... 193
Direct Appeal ..................... 195
Post-Conviction Relief ............ 197
Intersection .................... 201
The Rise and Fall of Habeas Corpus... 202
Limiting Habeas ................... 203
Intersection .................... 206
Enter McClesky ...................... 206
Beginning the Merger ................ 209
Chapter 5 End Notes ................. 213
CHAPTER
6. REFORM IMPLICATIONS: A CONCLUSION ...... 222
Encouraging State Law Breaking
While Limiting Remedies .............. 223
The Politics of Crime
and Discretion ....................... 225
Who Suffers ........................ 226
Who Pays ........................... 228
Intersection ..................... 229
Reviewing Judicial Review ............ 230
Intersection ..................... 233
Let's Kill All the Lawyers ........... 233
A lawyer by Any Other Name ......... 234
x


Sanctions Behavior and Legal
Conflict ............................ 236
Expanding Sanctions ................. 237
Intersection ................... 238
Toward the Future ................... 239
Avoiding a Last Hurrah for Civil
Rights Litigation ................. 241
Limiting the Impact .'........... 243
Chapter 6 End Notes ................. 248
BIBLIOGRAPHY........................... 248
xi


DEDICATION
It is difficult to fairly dedicate a writing such as this.
Most assuredly little bits and pieces of all my professors
in law school and the Graduate School of Public Affairs are
in it. But I must give special recognition to three
faculty. To Mark Pogrebin who taught me how to avoid
cynicism in criminal justice, to E. Sam Overman who opened
my mind to the nature of theory and to Lloyd Burton who
rebirthed this writing and my scholarship--thanks. Finally,
I must express my gratitude to my wife Susan whose
tolerance, and not so gentle nudging, all these years has
finally born fruit.
xi 1


CHAPTER 1
INTRODUCTION
Statement of the Problem
Legal reform occurs in three major ways. The first is
through reform in procedure. The second is through reform
in statutes.1 The third is through changes in interpreta-
tions of procedural and statutory reform and/or reinterpre-
tations of existing procedure and statutes. This last can
also be called substantive reform. Reform can be specific
to one of the major divisions of the law, for example,
civil and criminal, or subdivisions, i.e., tort and
contract within civil law.
In some instances, individual legal reform(s) may have
unintended or unanticipated results in that another
subdivision of law is adversely affected. In other
circumstances reform in two distinct areas of the law may
combine to produce unanticipated impacts. This text argues
that such unintended and unanticipated results occurred,
individually and in combination, when two distinct reforms,
Federal Rule of Civil Procedure .11: Sanctions (Rule 11) and
limitations on federal habeas corpus access, developed and
1


evolved during the 1980's and 90's.
More specifically, this text argues that the
unintended or unanticipated results of these reforms have
been adverse, individually and in combination, in three
distinct ways. The first is that Rule 11 has had the
substantial effect of "chilling" the use of civil rights
litigation in federal courts to create new rights or to
vindicate existing ones. The second is that federal habeas,
corpus reform has adversely impacted the ability of state
criminal defendants to receive a "fair trial" and convicted
persons to obtain meaningful federal review of state
criminal convictions. Finally, such reform has in
combination had the substantial effect of c
reating a situation where the public, particularly
politically weak individuals and groups, has little
meaningful remedy for abuses of the criminal justice
system. As a result, the ability of the public to utilize
the courts in order to meaningfully control abuses of the
criminal justice system has been seriously impaired.
Methodology
The etiology of particular legal reforms is complex
and multivariant. The same applies to the reasons why
legal reform may "behave" in a particular manner. To
2


approach the complex issues involved in legal reform, a
historical-legal-behavioral approach is taken; that is,
first the express intent of such reform will be analyzed
and then an analysis of the actual performance of the
reform will be done. In analyzing actual performance,
particular emphasis is given to Black's (1976) "Behavior of
Law" approach to analyzing and predicting legal behavior.
In structure, this text will consist of six chapters.
This chapter gives a broad overview of civil and criminal
law and procedure and some examples of reforms. Chapter II
will present some theoretical and practical limitations of
this text and define the dimensions of a behavioral
perspective, of legal analysis. Chapters III and IV will
concentrate specifically on the evolution and practice of
one civil procedure reform, Sanctions. Chapter V. will
focuses on criminal procedure and federal habeas corpus
reform and practice. Chapter VI expands on the behavior of
law focus and by.casing intersections, displays how civil
and criminal reform can combine to produce adverse results.
Finally, chapter IV conludes this text with some predic-
tions about future reform and its behavior.
Caveat: In any writing about law addressed to a
general audience it is necessary to avoid the assumption
that everyone understands the "basics." For this reason.
3


parts of this text, particularly the beginnings of chapters
I and V are perhaps too descriptive and basic. For those
bored by the detail, an early apology is entered.
Defining Civil Law Reform
It is a common myth that civil law is primarily
concerned with the idea of compensation between private
parties. Civil law and procedure also encompasses the
majority of private/government relations; hence, a civil
rights suit against the government is part of civil law.
Even this broad definition of civil law does not truly
reflect its breadth and importance in American society as
a mechanism for dispute resolution. Further, because of
the wide variations in civil law resulting from state
domination in its origin and interpretation, the term civil
law does: not reflect many of the political dimensions of
law.
Some commentators like Tarr (1994:9-13) note that law
can be divided into two spheres, public (involving the
government) and private (involving only private parties).
Most commonly, American law is divided into four major
groupings:
Criminal Civil Administrative Constitutional
These groupings are, however, not really so distinct.
4


Constitutional issues are inherent in criminal law and
procedure and are quite common in civil and administrative
law and procedure matters. Criminal and civil procedure
are similar at the trial level but have critical
constitutional differences. Administrative law is
conceptually and procedurally different at the hearing
level but merges procedurally with the other eras of the.
law at the review and appeal level.
Within the civil law in .particular, there is an
incredible diversity of specialized areas of law such as
family law, labor law and corporate law. Some of these
areas, such as labor law, are hybrids of constitutional,
administrative and contract law which arguably deserve
separate classification. Most of these specialized areas,
however, are merely variations of the contract and tort law
developed through centuries of Anglo-American common law
tradition. American law is often confused and intertwined,
but perhaps more than any other nation, America depends on
its courts to resolve complex societal issues. Many of
those issues are criminal in nature, but most are civil. As
developed later in this text, though, civil issues in this
society can be vast and far reaching and intimately
intertwined with criminal issues.
One characteristic of civil law is its burden of
5


proof. Generally, a civil law plaintiff is required to
prove his or her, or in the case of an artificial person,
its claim, by a "preponderance of the evidence."2 In many
ways, then, when one talks about "civil law" what is really
meant is a distinct set of procedures applied to resolving
noncriminal disputes. However, even here the distinctions
become doubtful because "Constitutional Law" bridges both
civil and criminal law and may have different burdens of
proof at the trial level depending on the kind of action.
Thus, it must be proven "beyond a reasonable doubt" that a
law is unconstitutional. Further, criminal procedure at
the appellate level is procedurally "civil law."
Contract Law
Contract law involves the formation, interpretation
and enforcement of an agreement. Generally, issues may
include the existence and meaning of an agreement as well
as damages resulting from nonperformance by one party.
Compensation (damages) can be monetary as is the case of
lost profits or the cost of finding a replacement party to
perform. A contractual remedy can also be "specific
performance," i.e., to sell or deliver the item at issue to
the plaintiff at the agreed upon price or in the agreed
upon condition (see Calamari and Perillo, 1987).
6


Tort Law
Tort law involves a civil wrong by one entity against
another. Torts generally fall into one of three classifi-
cations: malfeasance, an intentional or malicious wrong;
misfeasance, a wrong committed as a result of negligence;
and nonfeasance, a failure to perform a duty. Torts may or
may not, require a special relationship to exist (such as,
doctor/patient). Most often they do not.
The same act, depending on the mental state of the
party which can be inferred from the circumstances, may be
malfeasance, misfeasance, or nonfeasance. Thus, if a
person drives a car in a reckless manner and strikes a
pedestrian, that is the tort of battery (wrongful touching)
and may be malfeasance. If the person drives the car and
inadvertently runs a stop sign and hits a pedestrian, then
that is the same tort of battery, but may be only
misfeasance.. Nonfeasance is more difficult to define. An
example would be allowing a nonlicensed minor to drive a
car. It could be argued that the party was negligent
(misfeasant) in allowing the minor to drive the car or
nonfeasant in failing to perform the duty of not' letting
the minor drive the car. .
In general, tort law involves initially establishing
the presence of a duty, i.e., not to commit an unlawful
7


touching, and then establishing whether the act or breach
of duty was malicious, negligent, etc., by a preponderance
of the evidence. The question then becomes one of damages.
Establishing "new duties" is, of course, part of the
evolution of American law. For example, 20 years ago most
nonunion employees were "employees at will" and could be
discharged for any or no reason. Now, some states (like
Colorado) recognize an "implied contract of employment" and
allow damages against a breaching employer. In still other
states there now exists a tort of "wrongful discharge."
Damages
Tort damages differ from contractual damages in
several ways. Generally, contractual litigation only
allows "actual damages". These are the actual costs
incurred as a result of the contractual breach. Tort law
allows besides actual damages monetary compensation for
more intangible harm such as pain and. suffering. These are
often referred to as "general damages." In addition,- in
certain circumstances, with an increased burden of proof
and a showing of malfeasance, tort law allows "punitive
damages." These damages, which can be substantial, are
intended to punish a defendant for outrageous conduct
and/or deter others from similar conduct.3
8


Civil Law and Civil Rights
Civil rights law and practice differs from civil law
and practice only in degree and defendant. Simply put, if
a private citizen strikes another private citizen, that may
be a tort or a criminal act. However, if a government
actor hits a citizen, this may be a "constitutional tort"
or a crime. Constitutional tort is another name for a kind
of civil rights violation; that is, the citizen was
deprived of a right to be free from unnecessary force.
This assumes, of course, there is no legally valid
justification for the act on the part of the government
actor.
In addition, it is important to appreciate that a
private party can also commit a "constitutional tort."
Ergo, 42 USC Section 1985 prohibits private persons .from
committing civil rights violations. For example, if a
private individual hits a person "because" that person was
black, a civil rights violation may stand. Hybrid
situations where there is both state tort and constitu
tional tort violations often occur. This frequently
happens when a private party is found to be a de facto
state actor as in the operation of a private prison (see,
for example, Chaires and Lentz, 1995; Robbins, 1988; NOTE,
1987) .
9


Civil rights violations may also occur in a contract
context. Thus, 42 USC Section 1981 prohibits private
parties from contractual discrimination on the basis of
race. In the same vein, legislation such as the Civil
Rights Act of 1964, the Civil Rights Act of 1991, The
Americans With Disabilities Act, and the Age Discrimination
in Employment Act apply in varying degrees to both
governmental and private entities (Chaires and Lentz,
1994). Where specific statutory language does not create
a right, the more generic prohibitions of the 14th
Amendment with its "equal protection" and "due process"
clauses create rights that a state may not violate absent
compelling circumstances.
In short, civil rights law and litigation arises from
a broad range of sources. Moreover, such litigation is
subject to the same set of civil procedure rules that
control a contract case or a tort case. There is, however,
a major difference between a civil tort case and a
constitutional tort case: in a "civil rights" case the
government actor(s) has absolute or qualified immunity from
suit depending on a variety of circumstances to be
described later (see for example, Nahmond, 1993:3-64) This
effectively places a greater burden of proof on the civil
rights plaintiff. Thus, a civil rights plaintiff is
10


subject to procedural rules that may not consider the
special circumstances and burdens in civil rights
litigation. This often makes it more difficult for the
civil rights plaintiff to achieve meaningful relief.
Nonmonetary Remedies in Civil Rights
To further distinguish civil rights litigation from
civil law litigation in general, it is important to note
that often theprimary purpose of a civil rights suit is
not to obtain money damages for a plaintiff but to obtain
injunctive and/or declaratory relief for a class (see
Nahmond, 1993:361-403).
This recognition,- that civil rights suits often do not
involve sums of monetary damages sufficient to justify the
involvement of private counsel (in the attorney's
perspective), was at least in part the reason for
Congressional passage of the Civil Rights Attorney's Fee
Awards Act of 1976 (codified in 42 U.S.C. Section 1988).
Congress recognized that litigating against the often
overwhelming resources and power of the government is
difficult and expensive, but often necessary if important
rights are to be vindicated. Indeed, the Act was passed in
1976 in response to the Supreme Court's ruling in Aleyska
Pipeline Serv. Co. v. Wilderness Society (421 US 240
11


[1975]) in which the Court held that under the "American
Rule" federal courts had no power to award attorney fees in
public interest cases (Nahmond, 1993:338).4
Arguably, the government can have no compelling,
legitimate interest in continuing an unconstitutional
practice. As such, there must exist a practical means to
test the legitimacy of particular state actions, i.e.,
civil rights litigation. It would be reasonable,
therefore, to recognize special exceptions (for civil
rights litigation) to certain limiting civil procedures.
These would not be exceptions that weight the litigation
process in favor of a plaintiff but exceptions that
maintain open access to neutral courts as a practical means
of testing governmental conduct. Exploring civil law
reform discloses, however, that many of these reforms
adversely impact on maintaining that open neutral court
perspective.
Types of Civil Law Reform
Not surprisingly, the vast majority of civil law
reforms at the federal and state levels have addressed the
:following:
(1) limiting the ability of individuals
to complain about such wrongs in the
12


venue of a civil jury trial (Removal);
(2) limiting the amount of damages
(Caps); and
(3) discouraging plaintiffs and attorneys
who represent plaintiffs from bringing
such cases (fee shifting).
Removal
Removal covers a wide variety of procedural reforms
designed to remove.legal and factual disputes from jury
review and resolution. Examples of removal are mediation,
arbitration and trials to a judge. .The rational behind
removal usually centers on the issues of economy and
simplicity.
Historical Perspectives. Historically,- it- should be
noted that mediation, arbitration and trials to a judge by
far predate, in idea and practice, the use of juries for
resolving legal and factual disputes.5 There are some
references to earlier jury-like activities. A 12 man-body
for-fact-finding was established in Wales by King Morgan of
Gla-Morgan in 725. In the 9th century Danish king Canute
enacted a law requiring "12 elders" in each village to
swear out accusations against wrongdoers (see Guinther,
1988:6-8).6
13


The establishment of the jury system in the American
colonies met with mixed success. Auerbach (1983) notes
that early Puritans and Pilgrims rejected the English trial
system in favor of binding arbitration by church eldersv
Later, as the colonies grew in complexity and size, they
adopted a traditional, if modified,, common law legal
system. Indeed, it is Auerbach's Observation that the vast
majority of immigrant groups coming to America initially
rejected the traditional legal system in favor of some form
of intragroup mediation or arbitration. Eventually,
though, folk custom integrated with the American legal
system as subsequent generations become more removed from
their dispute resolution traditions.
The American Jury. In the colonies, the idea of trial
by jury evolved into a political statement and a political
protection.7 Fearful of the power of "jury nullification"
and a free press, the Crown turned to the Admiralty Courts
where no juries were allowed. For example, the Stamp Act
of 1764, passed by Parliament ostensibly to supportthe
cost of maintaining a standing army in America, but
containing a tax on newspapers, was enforced through the
juryless Admiralty Court as were other laws including the
Navigation Acts. The effect of these efforts was to enrage
the public and contribute to the American Revolution.
14


Thomas Jefferson in the Declaration of Independence related
"depriving us, in many cases, of the benefits of trial by
jury" as one of the reasons for the revolution (Guinther,
1988:31).
The importance of jury trials in both civil and
criminal matters was clearly emphasized by our Founding
Fathers. Article III, Section 3, of the Constitution of
the United States enacted 17 September, 1787, guarantees
the right of trial by jury for high crimes and misdemean-
ors. There was, however, pressure for even stronger
individual rights and protections, so the first ten.
amendments to the Constitution, commonly referred to as
"The Bill of Rights," were enacted on December 15, 1791.
Of these, the Sixth Amendment further delineates rights in
criminal trials and the Seventh Amendment states:
In suits at common law, where the
value in controversy shall exceed
twenty dollars, the right of trial by
jury shall be preserved, and no fact
tried by jury shall be otherwise re-
examined in any court of the United
States other than according to the
rules of the common law.
The Founding Fathers in the Seventh Amendment
recognized that the jury system was critical to offset the
power of both government and the politically powerful.
Alexis DeTocqueville, in his famous Democracy in America
15


chronicling his 1830's tour of America, pictured the
American jury as more of a political than a judicial
institution. As DeTocqueville summarized over a 150 years
ago:
The jury may be an aristocratic or a
democratic institution, according to
the class from which the jurors are
selected; but there is always a
republican character in it, inasmuch
as it puts the real control of affairs
into the hands of the ruled, or some
of them, rather than into those of the
rulers (1966:272).
But, it is precisely the republican character of a jury
that brought about attempts to control it in post-revo-
lutionary America.8 .
Controlling the Jury. Horowitz (1989:377) observed
"merchants were not fond of juries." That is, commercial
interests saw a legal system based on conscience and/or
fair play rather than strict adherence to rules as a threat
to the legal stability and predictability needed to conduct
business. Hence, after about 1790 the power of the jury,
particularly in civil matters, rapidly began to wane.
Horowitz (1989) lists three major procedural devices
which were developed by the bench and the bar to protect
commercial interests:
The Special Case involved separating "fact issues"
from "legal issues" and. developing the practice of the
16


judge alone being able to decide legal issues.
Judgements Not Withstanding the Verdict developed in
criminal and civil cases. In criminal cases the trial
judge may reverse a "guilty" (but not a not guilty) verdict
on the grounds of insufficient evidence. In a civil case
the judge may either reverse a finding for the plaintiff
for a verdict "contrary to the weight of the evidence"
and/or award either party a new trial.
The Development of Jury Instructions has limited the
power of the jury to,make decisions based on its conscience
and operated to guide jury discretion in a direction
consistent with "established law."
By 1820 much of the power of the jury in civil matters
had been removed. The effect of these "reforms" was to
limit the power of the jurors to make decisions based on
their collective idea of justice. In civil matters,
however, judicial nullification of jury conscience has
evolved into the rule rather than the exception (see for
example, Schnapper, 1992).
Limitations on the 7th Amendment. It is helpful to
remember that the Seventh Amendment requirement of jury
trials does not apply to all civil matters. Proceedings in
equity which emphasize fairness more than formal compliance
with a law, such as requests for specific performance on a
17


contract, are not heard by a jury. Also, specific statutes
granting rights or entitlements may limit the forms of
redress to trials to the court or even non-judicial
resolution, such as arbitration (see, for example, Labriola
and Scolieri, 1992).
More importantly, the Seventh Amendment has .been held
not to set a mandatory requirement on the States. As Klein
(1992) relates, the idea that the'Founding Fathers desired
jury trials in all civil matters is a myth. For example,
in Galloway v. U.S. (319 U.S. 372 [1943]) the Supreme Court
rejected the traditional common law historical analysis of
Seventh Amendment right to jury trial. Further, the Court
has held that procedural barriers removing a case from jury
review do not violate the Seventh Amendment (Klein,
1992:1024-1025). Thus, whether one wishes to take an
incorporation approach or a sovereign immunity approach,
states do not have to provide civil jury trials. Indeed,
it was not until the 1960s that states were required to
provide jury trials in all serious criminal matters.
Most states, however; have chosen to provide similar
trial by jury guarantees in their state constitutions
(Abadinsky, 1991:266). However, even where a state civil
jury right exists, the legislature and the courts may
require the exhaustion of other remedies, such as
18


arbitration, before the civil trial right may be exercised
(see for example, Burton, Mclver and Stinson, 1991; Mclver
and Keilitz, 1991).
Summary Judgments. Another mechanism effectively
removing cases from jury review is the increased utiliza-
tion of motions for summary judgments. A summary judgment
motion is a request for' the court to summarily rule on the
case because (allegedly) no "material facts" are. in real
dispute and, thus, a jury trial is not needed. Summary
judgments have become popular because they allow courts -to
clear their, trial dockets.. Until the 1980s, however,
summary, judgments were discouraged in all. but the most
factually clear cases. Their increasingly successful use
suggests a change in judicial philosophy from one of
encouraging jury trials to resolve complex issues to one of
encouraging judges to resolve such issues (Klein,
1992:1028-1036). This even occurs when a1 jury is involved
and makes a judgment. Schnapper (1992) relates that
courts, trial and appeal, often "reinterpret" the facts and
therefore intrude on an area historically reserved to the
jury.9
Reform Today. Much of legal reform today, as in the
past, focuses on removing litigation from jury consider-
ation. There are several valid reasons for such a
19


direction, not the least of which is judicial economy.
Also, not unlike the situation in the late 18th century,
commercial interests claim that juries cannot rationally
decide complex questions of liability and damages and/or
that juries are swayed by their emotions to such an extent
that commercial defendants are subjected to uneven and
inconsistent application of the law. Kirst (1986:333), for
example, once predicted that "all disputes now heard on the
civil jury docket could be directed elswhere, leaving the
7th Amendment an empty shell."
The United States Supreme Court is due to decide an
important case in 1994. In Badie v. Bank of America
(944916) the court will decide if the Bank of America can
require its customers to submit disputes to binding
arbitration. As Donvovan (1994) relates, the case may have
strong implications for the expansion of the existing
practice of including mandatory arbitration clauses in
contracts. Perhaps the biggest impact could be on class
action litigation.
Caps
In.circumstances where legal reformers have not been
successful in removing cases from juries, they have often
been successful in limiting jury, awards. Numerous states
20


have implemented law imposing ceilings on awards. Such
ceilings may bear little relationship to the harm that may
have been suffered by a particular plaintiff.
Litigation and Damages. In theory, a civil case,
contract or tort, involves a plaintiff who alleges that a
defendant breached some duty and that some harm resulted to
the plaintiff. In a legal document called a "Complaint"
the plaintiff sets forth his or her perspective on the
facts of the case, the legal grounds on which the breach of
duty claims (there are usually more than one) are based and
the relief requested to compensate the plaintiff. In turn,
the defendant responds with a document called an "Answer"
in which s/he admits or denies each allegation of the
plaintiff and interposes "affirmative defenses" as -to why
s/he should not be liable for the alleged harms. The
plaintiff and defendant, called "parties," then engage in
"Discovery" to determine what "evidence" the other has to
support his or her case ending with a trial where the
facts, liability and damages are determined.10
As in criminal trials, the jury iis the wild card in a
civil trial. More than the expense of a trial, the
ostensibly unpredictable nature of the jury encourages both
sides in a controversy to settle the case. The clearer the
liability and the more outrageous the conduct of the
21


defendant, the greater will be the pressure to settle and
control the damages. This is particularly so in cases
where punitive damages are requested. Since punitive
damages require, at the least, an evidentiary showing of
reckless or malicious behavior on the part of the
defendant, it is likely that on a finding the defendant
liable the jury will simply award higher sums. Because
punitive damages are given to punish a defendant for
particularly outrageous conduct, or, to deter others from
similar conduct, punitive damages can be many times the
amount of actual and general damages.
Attorney Fees and Damages. It is from the damage award
that plaintiffs' attorneys usually receive their fees.
Thus, the existence of punitive damages is a major
motivator in an attorney taking a case. In many instances
a plaintiff, particularly a civil rights plaintiff, may
have suffered no damage in the traditional sense. There
may be no broken bones, no medical bills, no loss of
property. Awards to compensate the plaintiff may,
therefore, be nominal and, as such, insufficient to attract
an attorney to take the case. A large percentage of
plaintiffs' practice operates on a contingency fee basis
where plaintiff's counsel receives a percentage of any
award. There must be enough potential money in a case to
22


justify the attorney assuming the risk of undertaking the
case. After all, under the usual contingency fee
agreement, the attorney will receive nothing if s/he does
not prevail (Schmidt, 1987).
A delicate balancing problem occurs in most cases for
each side. Does a plaintiff spend $10,000 dollars to
recover $5,000 in damages? Does a defendant spend $10,000
to avoid paying $5,000 in damages. One reality of practice
is that it is not much less expensive to fight a $100,0000
case than it is a $1,000,000 case. A complex equation of
probabilities for loss and win occur which Ross (1980)
outlines in his classic work on negotiation. In the case
of the plaintiff's attorney, the equation is skewed by the
win or no pay scenario. That scenario does not exist for
defense counsel, who are usually paid whether they win or
lose.
Fee Shifting
The impact of fee s hifting (becoming responsible for
the opposing party's attorney fees) in any form is
dramatic, but often hard to measure. That is, how. does one
measure the "costs" of meritorious claims not filed or the
social price of limiting access to the legal system? A
brief comparison and contrast of the American and English
23


rules and an introduction to sanctions law will address
some of these issues.
The "American Rule"
Under the American rule, generally, a litigant can
only recoup his or her attorney fees from the other side
under three circumstances: The first occurs when there is
a specific statute. For example, some civil rights
statutes allow recovery under "private attorney general
acts." This will be covered more extensively in chapter
III. The second circumstance is the existence of .a
specific agreement, usually a contract, which states that
the prevailing party in litigation will pay the other
side's costs and attorney fees. Many loan agreements and
leases contain such clauses. The third arises when a court
finds that the actions of one side are so egregious that
attorney fees should be awarded as a matter of public
policy.
Historically. Anglo-American legal tradition has been
to reject the English Rule that the loser pays the opposing
party's attorney fees. In 1796 the U.S. Supreme Court in
Arcambel v. Wiseman (3 U.S [3 Dali] 306) held that "the
general practice of the United States is in opposition [to
the English Rule]" (Conlin and King, 1992:58j. The
24


American system has continued in that tradition. To date,
the American policy has generally been that it is better to
have a winning defendant be responsible for his or her own
attorney fees than to discourage access to the courts.11
Negotiation and Litigation
Under the English Rule
Negotiating under the English rule is substantially
different than under the American rule. Conlin and King
(1992) and Kritzer (1992) relate that extensive legal
services plans exist in England. These plans, primarily
funded by labor organizations, remove much of the onus of
having to pay if you lose a suit since the legal services
plan absorbs the cost. In addition, attorneys, both
solicitors and barristers, working under such plans are
paid their fees win or lose. However, Judge Patrick Devlin
of the English courts notes that "Everyone knows, every
lawyer particularly knows, that for the ordinary citizen
unqualified for Legal Aid a lawsuit is out of the question"
(cited, Kritzer, 1992:55). Kritzer relates that plain-
tiffs, to avoid the risk of fee shifting, may settle their
cases earlier and for less. As Judge Devlin states, the
unassisted litigant, "must take what is offered to him and
be glad that he has got something, (cited, Kritzer,
25


1992:56) ,12
Well-funded public interest law firms that will
undertake cases for those with- marginal or no resources do
exist in the United States. Groups like the American Civil
Liberties Union and various consumer groups have long
histories of playing David against Goliath sized economic
interests and the government. However, the resources and
support of such groups are really not available to
everyone. Public interest law firms pick and choose their
cases carefully to prove a particular point.13 The average
potential litigant must find an attorney to take the case
and then hope that their interests will be served.
With the existence of the contingency fee, there are
attorneys willing to undertake meritorious, if difficult,
claims. The client benefits by this availability and
American society benefits from at least the illusion, if
not the reality, of open access to the courts:
The Impact of Loser Pavs
The imposition of a loser pays rule, as advocated by
groups such as the President's Council on Competitiveness
(Kritzer, 1992; see also Chambers, 1992A), or as
introduced in Congress as part of the Access to. Justice
Bill in the 102nd Congress (S 2180,- H.R. 4155) for federal
26


diversity cases (Conlin and King, 1992), would dramatically
alter the status of litigation in America. It is likely
that fewer people would stand up and demand justice if they
had to face the possibility of paying the costs and fees of
the other side. It is also likely that many of the public
interest firms would have to change their decision making
models to include potentially severe losses to clients.14
Proponents of an English style rule argue that it
would increase access to the courts. By limiting
contingency fees and requiring the loser to pay "reasonable
fees," proponents hold that attorneys would be encouraged
to undertake smaller meritorious cases where the potential
recovery does not justify taking a case on a contingency
basis (Kitzer, 1992) This is a not inconsiderable point.15
To a substantial degree, however, the questions of American
v. English rules may have become moot. The advent of
Federal Rule 11 can be considered a de facto imposition of
the English rule.
Enter Sanctions
Another method of fee shifting is the use of
procedural rules or specific statutes intended to
"discourage" attorneys from filing frivolous claims or
interposing frivolous defenses. Amended Rule 11 of the
27


Federal rules of Civil Rules of Procedure is the classic
example of such civil law reform. Arguably, sanctions
operate as a de facto "English rule." However, reforms like
Rule 11 go a long step further. Under the English rule, it
is the losing client who would be responsible for the
payment of the other sides costs and fees. Under Rule 11
and its state-based progeny, it is the attorney who can
become personally responsible for such costs and fees.
Under the concept of sanctions, a court can order, among
other things, an attorney to pay the other side's attorney
fees if the court deems, that .the attorney(s) has violated
one of several sometimes ambiguous .standards for the
investigation, filing, and litigation of a claim. (This
will be covered extensively in chapter III.)
Perhaps more importantly,. Rule 11 type, sanctions can
be sought by a party at any time in litigation. Under the
English rule costs and fees do not come due until a party
has "lost" (unless there was a settlement). Thus, a party
at least has a chance to litigate a claim at trial. Under
Rule 11 type proceedings, a claim can be dismissed and
sanctions ordered at anytime after a claim is filed, prior
to, during, and after a trial (Gregory, 1990; 1988A; 1988B;
Chrein and Duffy,. 1985) More on point for this text, Rule
11 has had a disproportionate and adverse effect on civil
28


rights litigation. (Cochran, 1991; Taylor, 1991; Kuntzler,
1991; Tobias, 1988; Cochran and Vairo, 1988; LaFrance,
1988).
Defining Criminal Procedure Reform
American criminal procedure is in many ways unique in
its juxtaposition of federal and state powers, judicial
review and local political control of the vast majority of.
law enforcement practices. In those dimensions, criminal
procedure reform can be seen as the attempt to resolve
significant regional disparities in law enforcement
practices which reflect regional disparities in concepts of
civil rights.
The Context of Early Criminal Procedure Reform
It is critical to the thesis of this writing to
appreciate that criminal procedure reform did not and does
not occur in a vacuum. Criminal procedure reforms have
almost always occurred in the context of change in the
society as a whole. Civil rights in general came into
greater focus along with a recognition of disparate
treatment of minorities (see, for example, Burns, 1990;
Freeman, 1990). As will be discussed in Chapter IV, much
of this reform was predicated on a change of judicial
29


vision not only as to the role of the courts in general
institutional reform but also in shaping national values.
Ergo, the courts became concerned with reform in pretrial
and trial activities along with post-conviction activities
such as direct appeal and access to federal habeas corpus,
review of state actions. Visions come and go, however, and
the 1980's and 1990's saw criminal procedure reform in a
different direction, again predicated on a different view
of the role of federal courts.
The New Reforms
The new reforms in criminal procedure can be
categorized into three main areas: Expansions of federal
police power, lessening burdens of proof,, and restrictions
on federal review of state criminal procedure. ....
Expansion of Federal Police Power
In a purely technical sense there is no federal
police power. "Police Power," the inherent ability to
legislate for the protection of the health and safety of
the citizenry, is reserved to the States under the 10th
Amendment. Federal law enforcement power must come from
some specific constitutional grant of power such as the
"commerce clause" of Article I of the US Constitution. In
30


this vein, the expansion of federal police power is not
strictly "procedural reform" but rather an expansion of
federal jurisdiction to criminal activities which had been
the exclusive province of the states (see, for example,
Wallace, 1993). Further, this expansion through vehicles
such as RICO (Racketeer Influenced and Corrupt Organiza-
tion) and quasi-criminal penalties such as forfeiture has
resulted in the "criminalization" of conduct which had been
civil in nature.16 Finally, reforms in federal sentencing
grew out of the Comprehensive Crime Control Act of 1984 (18
U.S.C. Section 1 n.). These sentencing reforms were
intended to limit disparity in sentencing but have had the
opposite result. They have produced prosecution and
sentencing practices having -adverse impacts on minorities
(Shein, 1993) and women (Raeder, 1993A) while reducing the
ability of judges to fashion sentences which consider the
unique aspects of an individual case.
Lessening Burdens of Proof
RICO by itself has created a difficult burden of proof
for a defendant. RICO, which involves conspiracy theory
based on a "hub and spoke" approach, allows such anomalies
as attorneys being prosecuted for defending criminal
defendants when they "knew or should have known" that the
31


money paid to them was obtained from a criminal enterprise
(Axelrod, Price and Thornton, 1993) .17 Such a legal
approach menaces both the fundamental American criminal
procedure premise of "innocent until proven guilty" and the
Sixth Amendment "right to counsel." At a no less important
level, RICO practice damages the very concept and practice
of zealous advocacy as required by the Canons of Profes-
sional Responsibility for attorneys and the inherent
concepts of an adversarial system.
Civil forfeiture, at the federal and state levels,
allows the government to seize property "obtained through
or used in" a criminal enterprise. Since the seizure is
civil in nature the burden of proof is the civil law
preponderance of the evidence rather than the criminal law
"beyond a reasonable doubt.". Perhaps more importantly,
even if the government does not prevail in the criminal -
conviction, and it does not even have to proceed with a
criminal prosecution, it may pursue forfeiture indepen-
dently (for example, King, 1992:10-11). Further, it is not
clear to what extent a defendant in a civil forfeiture may
claim the benefits of the exclusionary rule or invoke Fifth
Amendment protection, although the courts are beginning'to
address those issues (Warner, 1994) In short, the
defendant in a civil forfeiture proceeding may be putting-
32


on the record things which may be used against him or her.
By no means is there any consensus on the use and/or
abuse of RICO and Civil forfeiture kinds of law and
procedure. Reske -(1994) ^ for example--relates that there
is substantial concern about expanding RICO law to limit
abortion protests. Quite legitimately, however, many law
enforcement interests point out that the complex, often
international,. webs of organized crime require specialized
tools (see, for example,.Wallace, 1994; Goldstock, 1992).
Some commentators have, however, questioned whether
organized crime is as "organized" as publicized. At a
lesser (in scale) level, other forms of reducing evidential
burdens for prosecutors are emerging.
In instances as diverse as proof of child molestation
(Raeder, 1993) and probable cause for stops and subsequent
search and seizure (Chaires, 1994) the burden of proof is
lessening. Thus, in child molestation prosecutions (a
state crime) it is not uncommon for a defendant to be
denied the right to direct confrontation and cross
examination at trial (Raeder, 1993). The rise of "totality
of circumstances" grounds in stop, search, and seizure law
has in many ways negated the ability of criminal. defendants
to successfully object to the introduction of evidence on
probable cause grounds (Chaires, 1994).
33


It is problematic whether the current "criminal
crisis" requires or justifies such trends. Many argue that
it does not (see, for example, Marks, 1993; Wallace, 1993;
King, 1992) The current willingness of a majority of the
U.S. Supreme Court to exclude some law enforcement search
and seizure practices from Fourth Amendment "reasonable
grounds" review and to overrule State Supreme Court
objections to such actions, indicates that criminal
defendants face greater procedural burdens at all phases of
criminal prosecution.18
Again, it is the right and obligation of the U.S.
Supreme Court to review state court criminal procedure
decisions. Yet, as discussed below and in more detail in
Chapters IV and V, an issue of philosophic consistency must
arise. This can be explained in the form of~ three
questions. If the Supreme Court desires to reverse
"activist" trends of previous Courts who reversed State
decisions on criminal procedure, should it then not now
give deference to state court decisions? If the Supreme
Court desires to take a legal positivist approach to
constitutional law, should it then ignore legal "realist"
positions of considering the "practical" problems of a war
on crime? Finally, are state deference and legal realism
incompatible approaches? A fourth question is implicit; if
34


meaningful access to the courts is denied, how will the
above three questions be answered? Arguably, the last is
a question habeas corpus was intended to answer.
Limiting Habeas Corpus
When the constitution was originally written,- Article
I, section 9 stated, inter alia, "The privilege of habeas
corpus shall not be suspended, unless in cases of rebellion
or invasion of public safety shall, require it." At the
time, the practice of direct criminal appeal was not.well
developed. 19 While the concept of habeas corpus review
dated back to the Magna Carta, the idea of an appeals
system to review procedural error in a trial as opposed to
substantive errors in criminal confinement did not really
exist. The writ of habeas corpus, literally "to produce
the body" before the court, historically involved
circumstances where a person was being1 held in a manner
contrary to the law. Thus, it was intended to defeat
practices of the Crown like arrests without charges or
punishment without trial.20
The Evolution. American criminal procedure has from
the very beginning been concerned with abuses of governmen-
tal authority. For example, in 1648 the Massachusetts Bay
Colony legislature enacted the Body of Liberties which gave
35


some limited recognition to individual due process rights
(Johnson, 1988:103-104) .21 Many of these ideas originated
with the "Leveller" movement in England. In part, that
movement was an outgroup religious effort to curtail the
use of criminal law for purposes of religious oppression
(Johnson, 1988:85-86). Later, many of these same due
process premises would be founded on emerging antireligious
Enlightenment premises. Finally, these due process ideas
would be incorporated into the United States Constitution
and gradually the courts grew to play an increasingly
importantrole in interpreting them.
As the concept of Judicial Review became more
established and the Supreme Court formally established its
legal dominance, first in constitutional matters (for
example, Marbury v. Madison, 1 Cranch 137 [1803]) and later
in review of state- civil matters (for example, Martin v.
Hunter's Lessee, 6 Wheaton 264 [1816]), the recognition of
the power of Article III courts to review state criminal
matters grew.22 It was, however, the recognition that state
criminal appeal procedures often failed to offer realistic
review of pre-trial and trial conduct that brought federal
habeas corpus into prominence.
As early as 1830, the Supreme Court clearly acknowl-
edged the power of the federal courts to issue writs of
36


habeas corpus in order to review state convictions {Ex
parte Watkins, 28 U.S. 193) In the Habeas Corpus Act of
1867 Congress gave impetus to the concept of federal review
of state criminal proceedings. Just over a half century
ago the Supreme Court recognized that even a confined,
convicted state prisoner had a constitutional right to
federal habeas corpus review {Ex Parte Hull (312 US 546
[1941]) A few years later in Coffin v. Reichard (143 F.2d
443 [1944]) the 6th Circuit recognized that habeas corpus
could be used by a prisoner to test not only the legality
of confinement but also the conditions of it (Palmer,
1992:210).
In most ways this right of review was meaningless for
the vast majority of indigent (of which most are) and/or
illiterate (of which many are) inmates until the advent of
Johnson v. Avery (393 US 483 [1969]) and Bounds v. Smith
(430 US 817 [1977]). These cases, and many others, gave
some guidance on how inmates might exercise this right
(see, for example, Musher, 1993; Palmer, 1992'. Bounds, in
particular, addressed the issue of how an inmate could gain
"meaningful access" to the courts to address Section 1983
civil rights claims.23
37


The Fall of Habeas Corpus
By the mid 1970's habeas corpus as a means to test the
legitimacy and conditions of state confinement had reached
its height. By 1979 and Bell v. Wolfish (441 U.S. 520),
judical intervention in prisons in general began to come
under more restraint. The Court severely limited the use
of habeas corpus to test the constitutionality of
conditions of confinement. By 1991 and McClesky v. Zant
(111 S.Ct. 1454), the writ of habeas corpus had been
severely limited as a practical means to seek review of
state convictions (Chaires, 1992).
Conclusion
American law and procedure is complex and prone to
ideological and political interpretive conflict.. In short,
law and its etiology and practice is much like any other
complex institution or process. More on this last point
will be presented in Chapter VI. It remains, however, to
define an approach to complex problems, to understanding
how law behaves and why legal reform may move in unintended
or unanticipated directions. That approach and its
limitations are presented in Chapter II.
38


CHAPTER 1 END NOTES
1. Changes in procedure may require statutory approval. In
this text .statutory reform is distinguished and defined as
that which may create or extinguish a particular enforce-
able right or interest which may be litigated in the
courts.
2. In administrative law a plaintiff may have to prove by
"clear and convincing evidence" that an agency abused its
discretion in order to overturn on judicial review.
3. In more detail: Actual damages are out of pocket kinds
of expenses. These would include, for example, medical
bills, lost wages, direct expenses, and the cost of repairs
or replacement. Generally these are the easiest to prove:
you just produce the bill. The major issue in such damages
usually revolves around what is reasonable, i.e.-, $10,000
to fix a 10 year old car. General damages reflect more
intangible kinds of injuries .or' losses, such as pain and
suffering or the loss of consortium with a loved one. These
are harder to prove because they can be highly subjective.
Punitive damages are intended to punish the defendant for
outrageous conduct and/or discourage others from engaging
in similar conduct. These damages are the hardest to
prove, often requiring, particularly in cases against
government defendants, proof beyond a reasonable doubt.
4. This is not to say that civil tort actions do not often
vindicate or establish important .interests. -They do', and
often in class actions of enormous proportions. But
arguably, attorneys successfully involved in such private
actions receive "adequate" compensation. Indeed, as will be
addressed in-.chapter II., the success of such attorneys in
private tort actions is a one of the major reasons for
civil law reform:
5. .There are some isolated historical examples of early
jury use in Western Civilization. For example, the
Athenians used large public juries called dicasts of-501 to
1501 male citizens in criminal trials and 201 in civil
trials in the fourth century B.C.. These early Athenian
juries decided cases based on their idea of "general
39


justice" rather than the "letter of the law" '(Guinther,
1988:2). Thus, the idea and practice of. "jury nullifica-
tion" (conscience of the jury) far predates the 17th
Century "Enlightenment" concepts with which traditionally
associated. Nonetheless, the practice of using juries in
criminal or civil matters virtually disappeared. In the
Anglo-American legal tradition criminal juries began to
reappear in the late 12th Century England in a form more
similar to a contemporary charging "grand jury" than to a
trial (petit) jury. In point, early Anglo-American jurors
were selected primarily because they knew the most about
the parties and what had happened (Abadinsky, 1991:235).
Yet, early English criminal juries were essentially
powerless and subject to being overruled, or, even
imprisoned, by a judge for bringing in the "wrong" verdict.
Civil jury trials never really caught on in England.
6. It was not until 1670 and the decision in Bushel's Case
that the English Courts ruled that a jury could not be
punished for defyingthe court's directions in bringing a
verdict consistent with its conscience-.
7. In 1734 John Peter Zenger, a printer and political
commentator, was arrested and prosecuted for seditious
liable against the.royal governor of New York and held on
a bail of 400 Pounds, an incredible amount in those days.
Lawyers for Zenger who argued against the enormous bail
were disbarred by Governor Crosby, a Crown appointee.
Crosby also arranged for the trial judge to exclude any
evidence which could prove Zenger's 'publications were
truthful political comments. However, Zenger's supporters
were able to get Andrew Hamilton, a famous -Philadelphia
lawyer, to take on the case. (Hence, the saying "get a
Philadelphia lawyer.") Hamilton argued to the jury that
one might violate the letter of the law in carrying out the
spirit of the law, in this case the freedom of the press
and the power of the jury to "nullify" bad law. The jury
acquitted Zenger despite the .overwhelming technical
evidence against him and the directions of the court to
convict. From that date forward there were no successful
British prosecutions for seditious liable, and the idea of
the right to a free press was established in America
(Guinther, 1988:28-31; see also, Scheflin, 1989).
40


8. It should be noted that there is by no means consensus
about what the Founding Fathers intended by the Seventh
Amendment. Klein (1992) strongly and compellingly argues
that the "original intent" was for a very limited right to
jury trials in civil matters.
9. It is not just in America that there is a movement to
remove the jury as a final decider of fact. Findley and
Dunn (1988) relate that in England the criminal jury system
(the British system does not use juries in civil trials) is
under attack for many of the same reasons that are
articulated by critics here. For example, the jury system
is cited as being ineffective and inefficient. More
significantly, however, vested interests are distrustful of
the jury's nullification power.
10. In practice, modern litigation seldom is concerned with
proving who did the harm or breached the duty (liability).
In much the same way that criminal cases are plea
bargained, civil cases are settled, and for similar
reasons. In most civil cases causation (A ran over B
causing injury) is clear. Disputes typically arise over
two issues: whether the act claimed by the plaintiff was
actually a legal wrong, and what the damages should.be. In
many cases, both parties are willing to stipulate to the
fact that A ran over B and submit only the issue of damages
to the judge or.more usually the jury. Indeed, in theory,
the discovery process in civil litigation is intended to
expose and clarify facts. However, the discovery process
often becomes a game of hide-and-seek as one side attempts
to hide a critical piece of information and the other side
attempts to find.it. In the usual litigation process, if
the plaintiffs find the hidden information, the defense
surrenders and then bargains the damages. At all times,
lingering, in the background is the specter of a jury
choosing to "nullify" the law or to be enraged by the
conduct of one of the parties and modifying an award up or
down to match their anger.
11. -This aspect of the American adversarial legal system
has.tended to level out the playing field by making each
side a "loser" as far as the costs of retaining counsel are
41


concerned. Arguably, the American Rule has advantaged
those with the most resources, often allowing the
wealthiest side to exhaust the resources of the other,
thereby avoiding the merits of the case. However, this
resource game also has had a constructive side. That is,
the costs of a suit, most particularly attorney fees, are
a very real consideration in litigation. If attorney fees
would be more than the recovery after full litigation, then
compromise and settlement chances are enhanced (Kritzer,
1992; see also, Ross, 1980).
12. In the United States publicly funded legal services
exist, but, the kinds of cases and cliental they handle are
extremely limited. Generally, only the poorest individuals
qualify for such services and their claims revolve around
the problems of the poor, landlord/tenant, unfair
collection practices, and denial of access to programs for
the poor. Legal programs for the middle class, usually
obtained through purchasing legal insurance of doubtful
value, or more rarely, as an employee benefit, are also
very limited in.the kinds of services they will provide.
Few, if any, of these programs are willing.to indemnify a
client in the case of fee shifting.
13. This writer serves on the Board of Directors of the
ACLU of. Northern Nevada and chairs the litigation
committee. Very seldom is there any consensus as to what
is a good or meritorious case. Further, .economic and
political constraints force the rejection of many "good"
cases.
14. It is one thing for an attorney to undertake a case on
a contingency basis and lose, for arguably the client will
be no worse off. It is another thing to undertake a case,
lose, and leave a client devastated by attorney fees due
and owing to the other side. Such results could lead to
even more litigation as clients are forced to sue their
attorneys, claiming that bad advice or legal malpractice
placed them in the predicament.
15. Some questions are implicit, however,. One is, in
smaller cases (less than $10,0.00), would courts be willing
to award attorney fees in excess of the contested sum?
42


Further, few cases are sure winners; if they were, they
would settle early and attorney fees would not be a major
issue.- Thus-,-there would still be the question of who pays
the attorney fees if the case is lost.
16. It is interesting to note that Wallace (1994) relates
that RICO, legislated into existence in 1970 as part of the
Organized Crime Control Act of 1970, was largely ignored by
federal law enforcement officials until 1979. During that
time Professor G. Robert Blakey (then of Cornell law
School) engaged in a crusade like effort to convince
federal law enforcement officials, particularly prosecu-
tors, of the Act's utility. The rest is history.
17. The expansion of RICO into the purely civil sphere has
.created what many call a federal "fraud" tort and
enormously complicated law. This has in turn led an
increased used of sanctions in this area.
18. For example, in Florida v. Bostick (111 S.Ct. 23 82
[1991]) the Court overuled the Florida Supreme. Court's
finding that the practice of drug enforcement agents
asking, without any articuable. suspicion, bus passengers
for consent to search baggage violated the Fourth
Amendment. In this instance, the Court ruled (not without
strong dissent) that since Eostick "consented" to the
search, Fourth Amendment protections were not triggered.
See also, Minnesota v. Dickerson (113 S.Ct 2130 [1993])
where the Court overuled the Minnesota Supreme Court and
adopted the "plain touch" rule.
19. Direct criminal review is the process of appeal. Post-
conviction relief is, in part, a means of bringing up new
grounds for appeal. More about this will be discussed in
Chapter V.
20. Habeas corpus today is generally considered to be a
form of post-conviction relief. Habeas corpus has been
used in other pursuits, for example, to retrieve a child
from a welfare agency. See, Alpert and Brodek, "Habeas
Corpus--A Better Remedy in Visitation Denial Cases," 41
Maine Law Review 239 (1989).
43


21. This legislation was first enacted in 1641 and revised
in 1648. It was biblically based and codified capital
punishment for numerous felonies including, idolatry,
blasphemy, witchcraft, sodomy, adultery and bearing false
witness. In that sense, it lacked an "Enlightenment"
theme.
22. While Marbury is often considered the first landmark
case of judicial review, it is not. Wolfe (1986) notes
that the Court made several important rulings prior to
1803. For example, in Calder v. Bull, 3 Dallas 387 [1798])
The court held that the ex post facto clause applied only
to criminal matters.
23. Again, the Supreme Court did not make its decisions in
a vacuum. A host of lower court decisions existed. See
for example, Smith v. Bennett, 365 U.S.-708 (1961) which
held that state filing fees for indigent prisoners violates
due process; Novak v. Beto, 453 F.2d 661 9 (5th Cir. 1971)
providing an adequate alternative to jailhouse lawyers
would allow an institution to prohibit "jailhouse lawyers;"
Procunier v. Martinez, 416 U.S. 396 (1974) which held,
inter alia, that the institution cannot arbitrarily deny
visitation from representatives of lawyers.
44


CHAPTER 2
DEFINING "BEHAVIORAL IMPLICATIONS"
In many if not most instances, attempts to explain law
are by nature theory. A particular judicial decision may be
a "fact," but its premises and ultimately its interpre-
tation are often theory. In that sense, law is subject to
the same paradigmatic shifts and limitations as science and
social science. More specifically, legal reform may have
as its premise a paradigmatically based concept that is
inconsistent or in actual conflict with the stated purpose
of a particular reform. This inconsistency may contribute
to wide discrepancies between legal intent and legal
practice (behavior).
Actual legal practice is easier in many ways to
analyze than legal intent. Simply put, to understand
intent requires an analysis of what was the stated intent
and what may be termed the "subjective motive." In
contrast, analyzing practice is more one dimensional; it
involves the study of actual occurrences. In this vein,
law can be said to "behave" in a fairly predictable manner.
Problems occur when attempts are made to explain "why" law
behaves in a certain manner. Quite obviously, there are
wide variances in explanations as to why law behaves in a
particular manner.
45


Herein is the quandary of a text such as this. To
understand legal reform it is critically important to
examine the intent behind such reform. That examination is
the province of legal actors and legal scholars who must
decide how to interpret a particular legal reform
initiative. The why and what of behavior tends more to be
the province of social scientists and the tools of social
science. An undertaking such as this text in attempting to
walk both approaches incurs the constant danger of "mixing
its metaphors" so to speak.
This point of mixing metaphors is not unimportant.
For example, Mensch (1990:13) in describing the history of
mainstream legal thought observes that "the Obvious Logic
of one period becomes superseded by the equally obvious,
though contradictory, logic of subsequent orthodoxy." At
one level, her statement is a classic summation of the
Kuhnian (1970) paradigm shift; thus, it is cloaked in the
conceptual language of science and social science. It is
clear, however, that the intent of her writing is a
historical analysis of changes in judicial philosophy and
nowhere within is. there reference to social science theory
or terminology. Except, that is, for her utilization of
the concept of "legal consciousness." Ergo, at another
level, her writing could be considered a sociological
46


treatise based on symbolic interactionalist perspectives of
definitional consensus. At still another level, the
examples given within her writing depend heavily on
conflict/power models of class and property.
Again, the point is that any writing is subject to the
disciplinary interpretation of the reader. Quite often,
different disciplines evolve quite similar concepts, but,
the concepts are seen to be dissimilar because of
separately evolved terminology. In short, often people are
saying the same thing, but the disciplinary language
barrier impedes communication and understanding.
Hopefully, the analysis of paradigmatic limitations and
conflict in the social sciences which follows will give
some context to the premises of this text regarding the
behavioral implications of legal reform-. Further, it is
hoped that understanding the paradigmatic nature of social
science analysis will have some carry-over into the
problems of presenting and analyzing the intent behind
legal reforms.
A Context for Paradigms
Kuhn (1962;1970) in his classic and controversial
Structure of Scientific Revolutions presents the idea that
the basic premises of knowledge (paradigms) change through
47


a process of conflict and accommodation. More precisely,
a conceptual explanation develops which is the generally
accepted "knowledge." However, anomalies that are
inconsistent with accepted knowledge appear, new
explanations that are at first resisted and then gain
dominance develop as the purveyors of the old "idea" die
away. Ritzer (1975:3) has diagrammed the process as:
PARADIGM I } NORMAL SCIENCE }
ANOMALIES } CRISIS } REVOLUTION }
PARADIGM II
One important aspect of Kuhn's work is his perspective
that there is seldom a shift from one paradigm to another
without resistance. There is seldom a major new idea'where
everyone suddenly says "yes, that's it" and abandons 'the
old. Rather, accepted knowledge changes gradually and
often opposing paradigms coexist. Within this perception
of Kuhn and explanation' of Ritzer, a methodology for
approaching legal reform begins to emerge. Ergo, concepts
of, and approaches to, law, such as legal positivism, legal
realism, law and economics, and critical-legal studies, are
paradigmatic perspectives. Legal reform then is the
process of paradigmatic shift. To better explain this, it
48


is necessary to delve more deeply into the concept of
paradigms.
The Meaning of "Paradigm"
The exact meaning of "paradigm" eludes precise
definition. Masterman (1970) recognized that there existed
some 22 different usages of the term in Kuhn's (1962) work.
In response, Masterman developed a typology of paradigms:
1. The metaphysical paradigm or "world view;" 2. The
sociological paradigm or "system behavior;" and 3. The
construct paradigm or "product base." Kuhn himself in his
expanded (1970:174-210) edition recognizes the somewhat
nebulous framework and inconsistent use of the term
paradigm. Nevertheless, the term and concept is useful in
approaching social science and philosophic perspectives on
the law. As Chaires and Stitt (1994:6-7) relate:
A concept may be quite valuable even
though it defies consistent defini-
tion. We do not have to agree upon
either the existence of the power of a
God to agree that the concept of God
has both theoretical and operational
dimensions. In the same way that
there may be minor gods and major
Gods, paradigmatic thought has several
contextual levels. These levels may
involve normal science assumptions or
they may not.
49


Nevertheless, for the purpose of this text, it is
necessary to define a meaning for "paradigm" which will be
used consistently herein. Thus, the metaphysical
definition put forth by Chaires and Stitt (1994:7) will be
used; that is, "a model which a science/discipline or
members thereof, believe represents reality, as it is
conceived by that science/discipline." As will be seen
later, this particular definition has an especially cogent
meaning in the context of the paradigms of law and legal
reform. But, before the paradigms of law are reached a few
more conceptual bridges must be built.
The Paradigms of Social Science
Ritzner (1975) develops a useful approach for
examining the paradigmatic roots of sociology and, by
implication, all social science including the study of law..
He relates that all sociological theory falls into one of
three paradigmatic perspectives:
Social Fact: This paradigm involves theory which
assumes the existence of an independent social fact. For
example, conflict/power theory and structural-functional
theory assume a collective force which has existence-
independent ly of people, i.e.., the whole is greater than
the parts.
50


Social Definition: This paradigm involves theory which
assumes that there is no "independent social fact," that
individuals collectively define "reality." Examples would
include action theory, symbolic interactionalism and
phenomenological sociology. Ergo, there is no "whole,"
only individuals that "create" an abstract whole.
Social Behavior: As a paradigm the social behavior
approach rejects both social fact and social definition as
too abstract, too metaphysical. A behavioral approach in
general rejects the assumption that one can understand
"why" something occurs. Thus, behavioral approaches
emphasize prediction and control rather than explanation.
Behavioral sociology and exchange theory are examples of
such an approach. Black's (1976) Behavior of Law is
another. As will be more fully explained later, it is a
behavior of law perspective that will dominate this text.
The Paradigms of Law
Law is both social science and philosophy. Arguably,
since social science is paradigmatically based, that is,
resting upon essentially unprovable core assumptions,
social science is philosophy. Stated another way, the very
concept of science, and particularly social science, is a
paradigm.' Social science is an approach to understanding
51


the human condition, characterized first by its methodology
and then by its theories. The methodology is often in
conflict with other approaches to understanding. Other
approaches to understanding range from those that have been
discredited, such as astrology, to. that which cannot be
proved or disproved, such as divine intervention.
Law is, then, first a paradigm characterized by its
methodology. All would agree that law exists, that it has
a source and that it is enforceable, i.e., that it has
certain behavioral characteristics. But, there is little
agreement as to what law is, where it comes from and what
it should do. Most specifically, there is a lack of a
dominant consensus on the. last. In a broad sense the
paradigms of law can be described utilizing the paradigms
of social science, social fact, social definition and
social behavior.:
Models and Paradigms of Law
Blumenthal- (1981) describes three major models-of law
which can be categorized as paradigms.1 These models are:
God Model: Law is absolute and unvarying and must be
strictly and consistently applied.
Philosopher King (Equity) Model: Law is not absolute.
It is relative and best dispensed by learned, compassionate
52


persons who consider the fairness of result in each
individual circumstance.
Due Process Model: Law is not absolute but also
rejects the existence of individuals with the-
sophistication to produce consistently fair results. As
such, the emphasis is not on the fairness of the result but
on the fairness of the process.
It is readily apparent that at different times in
history, the American legal system has stressed the
premises of one of'these models over the others. Thus,
Mensch's four stage history of legal thought discussed in
the introduction. to this chapter (Preclassical
Consciousness, 1776-1885; Classical Legal Consciousness,
1885-1935; The Realist Challenge, 1920-1939; and Modern
Reconstruction) can be seen as a movement from -legal
absolutes, to legal equity, to due process. Indeed, today
there is international conflict regarding legal models.
Arguably, at a less macro level, much of the conflict in
legal reform revolves around these models.
It must be added that there is usually no clear point
where one can say that a particular legal practice is part
of a particular model. Thus, legal reforms, such as
arbitration or mediation, can be seen as attempts to
institute an equitable resolution to a problem or as
53


attempts to make due process more efficient. What is
important to look at is the behavior of a reform and the
model direction that reform moves the law. It is here that
a behavior of law perspective becomes valuable.
The Limits of Legal Theory
Quite simply, legal reforms are usually premised on
three distinct but interrelated considerations:
The first concerns perspectives as to what the purpose
of the law is. This concern is, by its nature,
paradigmatic, or as perhaps a better term in this context
would be ideological, in that the perspective is. ultimately
unprovable.
The second concerns the perspective that there is in
fact a problem. This involves drawing a conclusion about
the first concern and then a conclusion about how^ the legal
system is somehow impaired in its ability to carry out that
concern.
The third concerns the ability to fashion a "fix" that
addresses the second concern. That is, the "techniques" of
reform are often premised on theories of administration and
law which may themselves be ultimately unprovable.
These three concerns can be summarized in the form of two
questions. If we don't know what it is supposed to do, how
54


can we fix it? And, if you're not sure what the important
parts are, how can you pick the right tool to repair it?
Implicit in these questions is the quandary of complex
theory--- trying to find a usable methodology to cope with
complex problems. For example, figure 2.1 displays, the
complexity of theory modeling.
Figure 2.1 Matching Paradigms and Models
A: SOCIAL FACT B: SOCIAL DEFINITI ON C: SOCIAL BEHAVIO R
1. ABSO- LUTE A&l B&l C&l
2. EQUI- TY A&2 B&2 C&2
3. DUE PROC. A&3 B&3 C&3
Figure 2.1 can be used to consider the complexity of
a "simple" problem. For example, consider docket over-
crowding. in a legal absolute model, docket overcrowding
55


would not usually be a problem. You hear the facts and
rule within clear mandatory standards. In theory at least,
even the number of disputes would be at a minimum since
expected behavior is well defined.
If the desired model is Equity, however, in order to
give individualized results, time must be taken to consider
all the facts and what is fair. To limit overcrowding, by
say, raising the cost of filing fees to the point that many
would not use the courts, would be inconsistent with the
model.
To attempt to "streamline" the court process by.
limiting time for hearings or excluding certain arguments
may work but may have the substantial effect of moving the
model toward a due process concept were the process becomes
more important than the result. Further, .systemic reforms'
;often are premised on a social fact perspective that the
legal system has an existence independent of the actors in
it. This may or may not be so, but experience indicates
that such reforms often produce more litigation, hence,
more overcrowding. Chapters III and IV present examples of
this. What is important to appreciate here is Ritzer's
(1975) point about paradigmatic conflict:, belief in one
paradigm (assumption) negates the assumptions, of other
paradigms.
56


Whv a Behavioral Perspective
In practice, it is doubtful that many legal reforms go
through such convoluted analysis before enactment. Figure
2.1 displays a simple (if such a word can be used) 3x3
factorial approach. The reality of any problem is often
much more complex. The nature of paradigmatic and legal
conflict is that people truly "believe" that their premises
are right, hence, they often do not question them or look
for unintended consequences. In one sense, it. can be
argued that the discipline of public administration grew up
around .the -understanding that "things do not work the way
they should."
This observation about people also points out the
weakness of legal behavior approaches. The law does not
"behave;" only people behave. As Lilly and Jeffrey
(1979:99) relate, ... .no legal rule is self-starting" (see
also, Lilly, 1987). As such, legal behavior is a reifi-'
cation of an abstraction like government or organization.
This does not, however, reduce the utility of a behavior of
law perspective on legal reform. As Chaires and Stitt
(1994:9) relate, "Arguably, social fact paradigms are
themselves reifications of abstractions (i.e., Do cultures
clash? Does.power corrupt?)."
The questions and answers surrounding why a particular
57


legal reform occurs are complex and problematic. One can
argue a conflict/power approach to a reform such as FRCP
11: that an economic elite is attempting to close the
courts as a vehicle for the average person to obtain
redress for economic harms caused through tortious conduct.
One could also quite legitimately argue that reforms in
habeas corpus express a redefinition of society's values
concerning "criminal rights." It could also be that no one
really thought things out, that the intentions were one
thing and the result something else entirely. It is in
examining the last that a behavior of law' approach is
admirably suited.
Explaining the Behavior of Law
The central thesis of Black's now classic-Behavior of
Law (1976) is that law increases in quantity as other forms
of social control decrease in quality. Black defines law
as "governmental social control" (1976:2). In line with
this Black makes several observations regarding how law
"behaves" as it increases in quantity. Particularly
germane to this text are Black's observations as to the
behavior of law in the dimensions of stratification
(1976:11-36) and .culture (1976 : 61-83.) .2
58


Downward Law is Greater Than Upward Law
Simply put, people (real or artificial) at the top of
the vertical aspect of law which Black calls stratification
are more likely to use the punitive or penal aspects of the
law against people at the lower end of the stratification
dimension. Perhaps more importantly, people at the lower
end are less able to use the law against those at the top.
Another aspect of the stratification dimension is that
the style of law (social control)-- penal, compensatory,
therapeutic, or conciliatory-- is related to a person's
location on the vertical dimension. For example, in the
civil aspect of law it is much more likely that individuals
at the bottom end of society will be subject- to
unconscionable contracts, high interest- rates and
marginally legal collection practices. As one moves up in
the vertical dimension,- it becomes more likely that
contracts will be fair(er), interest rates more reasonable
and that some, meaningful remedy for abusive collection
practices will be available. Indeed, it is more likely that
things will be "worked out."
In a criminal vein, the higher a person is on the
vertical scale the less likely it is that law enforcement
interests will intrude into his or her life, and when they
do, it is also less likely that harsher penal sanctions
59


like prison will be imposed. In this direction, it must
also be considered that the lower a person is in the
vertical dimension the less likely it is that they will be
able to mount an effective defense.
Law Varies Directly With Culture
Black (1976:61) defines culture as "the symbolic
aspect of social life, including expressions of what is
true, good and beautiful." This is, of course, a very broad
definition including, inter alia, the choice of which
scientific paradigm is correct (truth), what is right and
wrong (morality) and the more conventional idea of
aesthetics. Black's observation is that law increases as
culture increases and that the more "culture" a person has
the less subject they will be to the penal aspects of law.
Further, the less culture a person has the less able they
will be to meaningfully use the law.
Cultural Distance. Cultural distance involves among
other things the definition of deviance and remedy. Thus,
there may be broad differences in religion, education,
morality and aesthetics. Cultural distance "predicts and
explains the quantity of law" (Black, 1976:74) For
example, members of a close religious group are less likely
to pursue litigation against each other while groups seen
60


as culturally marginal, i.e., ethnic and racial minority
groups, may find themselves on the receiving end of both
civil and criminal sanctions for similar conduct against
the same people.3
The Implications of the Behavior of Law
It should be noted that the dynamics of the behavior
of law can be explained in the context of other theoretical
approaches. Thus, landlord-tenant relations or arrest can
be explained using conflict/power or symbolic
interactionalist perspectives. Black explains the premise
of a behavior of law approach as:
Theory of this kind predicts and
explains social life without regard to
the individual as such. It neither
assumes nor implies that he is, for
instance, rational goal directed,.,
pleasure seeking, or pain avoiding. It
has no concept of human nature. It has
nothing to do with how an individual
experiences reality. It has nothing
to say about the responsibility of an
individual for his own conduct or
about its causes (1976:7). 4
Legal reform is a particularly appropriate setting for
a behavior of law approach and analysis. Quite simply, as
noted above, the possible intermixes of theory are so
complex that clear explanations as to causality or
interpretation become extremely difficult and problematic.
61


Further, any text of this type which combines several
levels of abstractions, such as individual intent,
organizational behavior, and philosophy of law, is ripe for
becoming convoluted and meaningless.5
Legal Reform as Legal Behavior
The focus herein, then, is to examine legal reforms,
specifically Federal Rule of Civil Procedure 11 and habeas
corpus access, within the context of Black's stratification
and culture. To do so, it is necessary to look at the
intent behind such reform and how such reform ultimately
"behaves." It is posited here that the behavior of such
reform was predictable. .. For example,- it is argued within
that Rule 11 has become a device that disproportionately
affects those at the lower end of the vertical dimension of
law and those who are seen as being on the cultural
fringes.
In another approach, while there is conflict in the
bar among attorneys who primarily represent plaintiffsand
attorneys who primarily represent defendants, both groups
because they are somewhat' similar in their stratification
and cultural positions have successfully used sanctions
practice. Where, however, there is a real or perceived
disparity in the cultural level of the attorney or the
62


issues being litigated are particular to those existing at
the lower ends of the stratification and cultural
dimensions, disparate treatment in the use and abuse of
penal kinds of attorney sanctions occur. For example,
Axelrod, Price and Thornton (1993) relate that increasingly
criminal defense lawyers are being charged and prosecuted
under a variety of legal theories, such as aiding and
abetting, conspiracy and obstruction of justice.
Alternative Perspectives
Again, this disparate result can be explained
utilizing a number of theoretical or analytical approaches.
Cogan (1989.) for example sees the problem of sanctions as
one involving conflict between the court's obligation to
control its docket and the conduct of attorneys and. the
court's obligation to provide a forum for the resolution of
disputes. Tobias (1989) and LaFrance (1988) see the problem
of sanctions as a conceptual one, that many civil rights
and public interest cases are not easily framed and
litigated in the form of traditional law and litigation
practices. Kuntzler (1991) .and Taylor (1991) take a more
direct approach,, holding that Rule 11 is deliberately
manipulated by conservative interests for purposes of
oppression. The behavior of law approach offers a more
63


consistent method to analyze cause and effect.
The same kinds of considerations are involved where
the criminal process is at issue. Wallace (1993) for
example notes that the drive to federalize many crimes has
been rooted in the manipulation of racial conflict. Raeder
(1993) relates that federal sentencing reform, intended to
produce a "neutral" atmosphere for sentencing, has had
harsh, disparate impacts on women.
In addition, Shein (1993) describes similar, if even
more adverse, racial disparity in sentencing reform where
Blacks and drugs are concerned. Under 21 U.S.C. section
841(b), for example, the minimum sentence for possession of
500 grams of powder cocaine (implied intent to distribute)
is five years imprisonment. Possession of five grams of
"crack" cocaine, the "poor man's drug," carries the same
mandatory penalty. This is a 100 to 1 ratio (Shein,
1993:29)! As Shein (1993:30-31) further describes,
attempts to argue that such a result violates due process
(U.S. v. Galloway, 951 F.2d &4 [5th Cir. 1992]), equal
protection {U.S. v. Thomas, 900 F.2d 37 [4th Cir. 1990])
and Eighth Amendment proportionality {U.S. v. Pickett, 941
F.2d 411 [6th Cir. 1991]) have failed.
64


Coming Together:
Paradigm Shifts. Legal Reform and
the Behavior of Law
Implicit in the analysis given by the above
commentators (and within judicial decisions) is either'a
social definition or social fact analysis of a problem. In
other words, clearly there is a disparate result. The
question for the commentators is "why?" The usual answer
is a simplistic "bad law" or "bad enforcement." What is
being described, however, is "legal behavior." Quite
simply, commentators on the law usually do not use social
science terms, particularly esoteric terminology such as
paradigm shifts, in describing legal perceptions and
conflict. Nevertheless, it can legitimately be held that
what is occurring as a result of at least some legal
reforms is a paradigm shift.
An example of this shift can be seen by examining
Shein's observations. He notes that "equal protection"
demands that "all persons similarly circumstanced shall be
treated alike" (1993:31, citing Pyler v. Doe, 457 U.S.
202,216 [1982]). Equal protection is a "fundamental right"
where a suspect classification like race and gender is
involved. The usual test for state interference with a'
fundamental right is a showing that there exists a
"compelling necessity" and that the course taken is'the
65


"least restrictive alternative." As Shein relates,
however, the judicial analysis in the above cases speak in
terms of a disparate result being "rationally related to a
legitimate state interest." In short, societal interest in
the drug war has become so "compelling" that it is assumed
that extraordinary measures are needed and that these
extraordinary measures will have (unfortunate?) impacts on
protected classes. The result is that the. test of those
measures is only one of a "rational basis," a test usually
reserved for intruding on privileges, not rights. There
need be no showing that the particular action is the least
restrictive alternative. Gradually, such a view enlarges
to include other areas of civil rights (for similar
concerns and conclusions see Askin, 1993; Marks, 1993;
Schnapper, 1992; 1989; Olsen, 1992; Deford, 1992;. King,
1992; Chemerinsky, 1990; Schwartz, 1990; Rudovsky, 1989).
By its very nature this standard and burden of proof
is one of nearly unquestioning deference to governmental
actions where drugs are concerned. It is a "paradigmatic"
shift from a previous standard that intrusions into
"fundamental rights," i.e., equal protection of the law,
required both an-individualized "compelling state purpose"
and the provision of the "least restrictive alternative."
In short, gradually, an entire new dominant "constitutional
66


jurisprudence" evolves, one where the role of the courts in
a heterogeneous democracy is redefined--reconstructed. It
is irrelevant whether this change was intended or
incidental. The behavioral effect is the same.
A Framework for Change
in Judicial Decision-Making
To further explain this concept of paradigmatic shift
in the law it may be helpful to examine how some
commentators have described historical changes in judicial
decision making. Tarr, (1994), Mensch, (1990), Freeman,
(1990), Feinman and Gabel, (1990) and Gilmore (1977) are
but a few of the scholars who have attempted to present
discreet conceptual periods in American law. Mensch and
Gilmore present overviews. Freeman (civil rights), Feinman
and Gable (contracts) Tarr (torts) present periods of
conceptual change in particular areas of law. They all
have, however, some commonalities which may give some focus
to the concept of paradigmatic shift in the law.
GILMORE:
Age of Discovery Post Revolution to Civil War balancing
codification and precedent.
Age of Discovery -Post Civil War to World War I law is a
science attempting uniformity of doctrine.
Age of Anxiety post-WW I to 1970's law is created -
legal realism.
67


MENSCH:
Preclassical Consciousness 1776 to 1885 balancing
utility and "natural law" morality law divided into
public and private "spheres."
Classical Legal Consciousness 1885 to 1935 balancing
individual autonomy and government power judges decide
which property and contract right prevails.
Realist Challenge 1920 to 1939 deference to legislative
adjustment of competing claims to serve the "public
interest"
Modem Reconstruction 1940 to present attempts to shift
from the substance of the law to the process law is
policy.
FEINMAN and GABLE (contracts):
Eighteenth Century contract law concerned with the
transfer of property, no anticipatory character -
equitable nature of contract considered.
Nineteenth Century dissolution of traditional social
bonds "freedom of contract" forces enforcement of unequal
agreements and.maintains economic classes.
Twentieth Century Regulated economy forces new concepts
of fairness in bargaining- division in Uniform Commerical
Code and private contract.
TARR (torts):
First Regime to mid 19th Century one acts at one's own
peril so avoid risky enterprises fault not an issue.
Second Regime mid ,19th Century to 1950's increasing
industrialization and problem of encouraging risky but
"socially useful" enterprises "foreseeability,"
"proximate cause" and privity of contract" reduce
liability.
Third Regime 1950's to.present general reduction of
defenses to liability rise of "strict liability" -
movement for "tort reform."
FREEMAN (civil rights)
Era of Uncertainty- 1954 to 1965 "separate but equal
inherently unequal.
Era of Contradiction 1965 to 1974 issue is "victim v.
perpetrator" institutional concept brings statutory
involvement- Affirmative Action.
Era of Rationalization ^ 1974 to 1984- "proof" of
discriminatory intent reverse discrimination claims have
standing.
Era of Denial 1984 ?.?? fault is at issue and it is
68


not society that is at fault for discriminatory impacts -
compelling reason for preference must be shown.
What emerges in this temporo-linear presentation is
first that any attempt to categorize legal evolution, or
conceptual change, into distinct periods requires very
arbitrary lines. And second that, at least in the
perception of the above authors, the conceptual
underpinnings of law and the role of the courts changes.6
These conceptual changes are not, of course, abrupt
and dramatic. They are in the Kuhnian (1970) sense gradual
changes which often take place in the context of an
environment like a university department (or an appeals
court) where completely conflicting ideas exist. Gilmore
(1977:68-69), for example, states:
From the vantage point of the 1970s it
is clear enough that the great
Langdellian jurisprudence crumbled
during the period between the two
World Wars. It did not, of course,
come tumbling down like the walls of .
Jerico at Joshhua's trumpet-blast.
and the truth of the matter may be
that the spirit of Langdellianism
survived the apparent rout of the
Langdellian forces during the bitter
jurisdictional battles of the 1920s
and 1930s--just as the spirit of Rome
may be said to have survived the
collapse of empire to reappear in the
guise of the Catholic Church. But
even if, for sake of argument, we
concede the identity of the two Romes,
we may go on to observe that the style
and trappings of Catholic Rome were
69


quite different from the style and
trappings of Imperial Rome. We can be
sure that a revivified and resurgent
Langdellianism would bear little
outward resemblance to the original.
Hence, legal evolution (or revolution) reflects many of the
dynamics of paradigmatic shift reflected on by Kuhn.
Social Considerations
There is, though, another aspect to consider in-the
juxtaposition of the evolutionary trends reflected above.
In many instances the law, and hence judicial activity>
changed in response to changes in' the social or economic
order and often that change was very slow. There was for
example, a lapse of 58 years between "separate but equal"
(Plessy v. Ferguson, 163 U.S. 537 [1896]) and "separate is
inherently unequal" (Brown v. Board of Education, 347 U.S
483 [1954]) as judicial imperative. Hall, et al (1991:254-
255) relate that in 1855 the Massachusetts legislature
banned segregation in public schools and in 1881 the Kansas
Supreme Court held that state law did not allow
segregation. There is some perhaps not so subtle irony,
that Topeka, Kansas, would be the defendant in Brown 73
years later and Boston, Massachusetts, would be a
continuing defendant in school desegregation cases even
today. There was, however, only the passing of some 30
70


years before the Supreme Court entered Freeman's "Era of
Denial" and dramatically (not without precedent) diminished
the promise of Brown.
Tribe (1989) used this concept of paradigmatic shift
brought about by judicial decision making. He relates that
judges often look at decisions as having only particular
"legal" ramifications, that they perceive only one
dimension of reality and often fail to consider that they
may be "changing" a larger reality by their decision (see
also, Chaires and Stitt, 1994; Gilsinan, 1991; and in
general, Zukov, 1979). This concept and process can be
described as:
Dominant Legal Philosophy } Behavior of Law }
Anomalies } Legal Reform }
New .Dominant Legal Philosophy } Behavior of Law
Herein can be seen the crux of the issue. Legal
philosophy, which includes perceptions of the role of the
courts and the role of the law, are actually perceptions of
reality in the paradigmatic sense. The behavior of law is
a constant which does not respond to perceptions of reality
71


but only to overt actions and then in a consistent
(arguably predictable) manner. When the behavior of law
does not match the expectations of the dominant legal
philosophy and produces anomalies, there is impetus for
legal reform. Gradually that reform changes the dominant
legal philosophy; hence, for example, rights are treated
like privileges and eventually rights become privileges.
The result is a new dominant legal philosophy, a new
reality, where the primary purpose of the law is the
accommodation of government (not a new idea). Which again
because of the behavior of law forces consideration of new
anomalies and more reform, again with that new legal
philosophy as a base line.
Rejecting the Pendulum
It is important not to consider this as merely a
cyclic or pendulum kind of approach. The new reform is not
in the direction of the "old" legal philosophy. Its intent
is to refine the new one. Thus, as will be explained in
chapters III and IV, the newest legal reforms are often not
a recognition of.' the failure of the old reforms but
attempts to refine the new paradigm. An example of this
will be presented in chapter IV where it is noted that the
1993 revisions of the 1983 revisions of Federal Rule of
72


Civil Procedure 11: Sanctions, change the wording of the
rule, but most probably, not the behavior.
Again, the old ideas still coexist. Few would argue
that preservation of life, liberty and equality are not the
purpose of the law. What is redefined is the meaning of
those terms. Most importantly, as the proponents of the
old ideas, the old definitions, die away in the Kuhnian
sense, the new definitions, the new reality, may bear
little resemblance to the old. Whether this is good or bad
is problematic. There is, however, a substantial question
of whether the actual behavior follows stated intent. As
the following chapters relate, the behavior of reform often
does not match the intent of reform. In this aspect alone
it can be said: if legal reform changes a forest into an
open field while most were busy looking at single trees,
then something at least poetically sad has happened.
Therein, is the crux of paradigmatic shift in the law.
The children of the 40s and 50s, and perhaps the 60s, grew
up with an idea of the courts as a vehicle of social
change. Even if the access to the courts appeared to many
to assume the guise of Kaufka's Gatekeeper, there was still
a general symbol of access, of a place where a lone
individual or cause could prevail despite all the political
manueverings and inertia of the other branches of
73


government. So much energy and effort is expended to fix
the courts. If the result is that the courts become just
another branch of goverment, concerned with efficiency,
effectivness, and political accountability, then a
paradigmatic shift in the law will have occured. The law
will become just another tool to be used and discarded at
will. In a land that at least in theory prides itself in
being run by laws not men, that is a significant change.
74


CHAPTER 2 END NOTES
1. These categories came from lectures by Professor
Blumenthal at the University of Denver College of Law circa
1981. This writer does not know if these lectures ever
resulted in a publication. Professor Blumenthal did not
use the term "paradigm" in reference to his categories. He
used the term "models."
2. Some, including this writer, would hold that Black wrote
the same chapter five times. That is Black's point.
Whether the dimension is stratification, morphology (the
horizontal dimension), culture, organization or social
control, the behavior of law is the same. This writer
teaches a senior seminar in jurisprudence. Black's text is
one of the required readings. When a student finally
observes that all the chapters say essentially the same
thing, it is considered that they are beginning to
understand the "behavior of law."
3. For example, Robert Chaires, Matt Leone and Richard
Siegal are currently finalizing a study on disparity in
Nevada jailing. When the jail pretrial population rate for
Whites, Blacks, Native Americans, Hispanics and Asians is
compared to the county population for those groups there is
a difference at the .01 level for Blacks, Native Americans
and Hispanics, but not for Asians who were
underrepresented. It would seem that since Asians,
particularly the non-English speaking immigrants, are an
unpopular minority in Nevada that all other things being
considered (i.e., crime propensity) they should be
disproportionately represented in the jail population. The
writers hypothesize that culturally, Asians are seen as
hardworking family people, strong Nevada values, and thus,
left alone. It should be noted that ethnic and racial
minorities have been the targets of systematic
discrimination by law enforcement officials in Nevada.
Often minorities are arrested and jailed for offenses like
cracked windshields. There have been several successful
civil rights suits surrounding such conduct.
4. Bibliographic sources have been deleted in this quote.
75


5. Indeed, an earlier version of this text was heavily-
criticized for its mixing of methodology and overdependance
on conflict/ power theory.
6. In point, Mensch, Freeman, and Feinman and Gabel all
appear to agree with much of the evolutionary process and
critical comment of Gilmore, but do not cite him. Feinman
and Gabel do cite Gilmore's Death of Contract (1974),
Columbus: Ohio State.
76


CHAPTER 3
THE MOTIVES OF REFORM
This chapter examines the history and evolution of
sanctions with an emphasis on Amended Federal Rule of Civil
Procedure 11 (FRCP 11). While an overview of many of the
issues surrounding control of attorney conduct and access
to the courts will be presented, a major focus of this
chapter is on presenting the fact that prior to the advent
of Amended Rule 11, many means of sanctioning attorneys
already had long existed.
Central to the theme of this chapter is the
examination of possible discrepancies between the intent of
FRCP 11 and its actual practice. To accomplish this, some
interests of the various groups involved in legal reform
will be presented. Then the expressed intent behind the
Rule, as reflected in official records, will be examined
and compared. The actual behavior of Rule 11 and the
rule's eventual "re"reform will be presented in chapter IV.
Some Historical Perspectives
Federal and state courts have never been fully open as
a forum for the resolution of every grievance. There is a
77


long history in American law of allowing individuals
aggrieved by frivolous and vexatious law suits to recoup
their losses and damages by filing countersuits or original
actions for "abusing the process" of civil law suits
(Lentz, 1989) Further, the courts have long had the
inherent power to personally sanction attorneys for
facilitating the pursuit of frivolous and groundless law
suits. Along with this power, the court has always had the
power to sanction attorneys for engaging in conduct deemed
detrimental to the proper operation of the legal system
(Joseph, 1988A) .
ABUSE OF PROCESS AND MALICIOUS
PROSECUTION AS EARLY TORTS
Lentz (1989:227) relates that "Under certain factual
circumstances, the plaintiff may be able to plead and prove
claims for both abuse of process and malicious prosecution
or use of process." Lentz notes that the two claims,
which sound in tort, are distinct, occurring at different
points in the legal process. Malicious prosecution or use
of process involves the wrongful commencement of a legal
action or service of process. Abuse of process involves
the wrongful continuance of a suit.1
Conceptual Origins. Abuse of process and malicious
78


prosecution date back to pre-revolutionary common law. The
torts are, however still active and valid claims available
most commonly as a state action. Abuse of process and
malicious prosecution can, however, be the basis for a
constitutional tort under 42 U.S.C. Section 1983 (see,
Brown v. Johnston (675 F. Supp 287 [WD Pa 1987]) The
dominant modern policy concept behind abuse of process and
malicious prosecution is the "balancing of a litigant's
free and uninhibited access to the courts with the interest
of protecting individuals against egregious abuses of the
judicial system" (Lentz, 1989:228). As such, courts have
ruled that these torts' should be interpreted and enforced
in a manner that does not produce an unwarranted chilling
of the right of access to the courts (see, for example,
Jacobson v. Garazo, 149 Vt. 205, 542 A2d 265 [1988]). For
this reason courts have generally required a showing of
"bad faith" and or an "ulterior motive" on the part of the
defendant in such an action.
Attorney Liability. Of perhaps more relevance for this
text is the point that private attorneys, may be personally
liable under these causes of action. While not. common
because of the public policy issues stated directly above
and because of limited immunity issues, attorneys who
assist in the filing of vexatious or groundless law suits
79


may be personally liable to plaintiffs if the attorney
acted in bad faith or in violation of accepted legal
conduct (see, for example, Mines v. Kakle, 557 F. Supp.
1030 [WD Pa 1983]) In contrast, because of their absolute
immunity, prosecutors can not be personally liable for
monetary damages for malicious prosecution.
Early Court Power to Sanction
Cogan (1989) relates that there is a continuing
disagreement regarding both the source and the scope of
judicial power to sanction attorneys for perceived
misconduct in proceedings before the court. Such sanctions
could include anything from an oral reprimand through an
order to, pay costs and attorney fees to suspension and
disbarment. The "inherent powers" view holds that federal
courts, and by implication state courts, by virtue of their
status as a separate branch of government have a virtually
unrestricted power to control, and hence, sanction,
improper conduct before them. The court has additional
power to control and sanction attorneys by virtue of their
status as "officers of th6 court." In addition, a court
may refer attorneys to the bar for disciplinary conduct.
In this inherent powers perspective the court has
rather summary power to fashion a range of sanctions for
80


improper conduct by an attorney before the court. Under a
pure inherent powers perspective, the court would have to
give little or no presanctioning notice. On the other
hand, the "due process" model of controlling attorney
conduct not only recognizes the inherent power of the court
to control attorney conduct but also acknowledges the
problems of litigating in an adversarial system. The due
process perspective, therefore, limits the power of the
court to control certain kinds of attorney conduct absent
explicit statutory authorization. It also places an
obligation on the court to conduct "presanctioning"
hearings.
Early Statutory Authority to Sanction
Section 1927 of Title. 28 of the United States Code
states:
Any attorney or other person admitted
to conduct cases in any court of the
United States or any Territory thereof
who so multiplies the proceedings in
any case unreasonably and vexatiously
may be required by the court to
satisfy personally the excess costs,
expenses, and attorneys' fees
reasonably incurred because of such
conduct (as amended Sept 12, 1980,
Pub.L. 96-349, Section 3, 94 Stat.
1156).
Section 1927 was amended in 1940 to specifically add
81


personal liability for attorneys. However, the power of
judges to personally sanction attorneys had long been
recognized, if seldom used. For example, in Motion Picture
Patents Co. v. Steiner, et a I (201 F. 63 [1912] ) it was
specifically acknowledged that the courts had such power
and could personally sanction attorneys and award attorney
fees.
The Early Rule 11
FRCP 11, as a procedural device to provide for control
of attorney conduct, was first enacted- in 1938. It held
that federal judges had the discretionary power to sanction
attorneys for engaging in the conduct of filing frivolous
or vexatious matters. Thus, Rule 11 was merely a
codification in procedural form of an already existing
power, not the creation of new one. As Gregory (1988)
notes, however, such sanctioning was not common. Kritzer
and Zemans (1993:536), for example, relate that "between
1938 and 1976, Rule 11 sanctions were imposed in only 3
reported cases (out of 19 reported cases in which Rule 11
motions had been filed)." To appreciate the true scope of
the scarcity of sanctioning it should be considered that
both Section 1927 and early FRCP 11 allowed a litigant to
motion for an award of sanctions. That recorded cases
82


reflect so few requests indicates something about common
perceptions of sanctions in those times.
"Bad Faith" as a Sanctioning Requirement
A critical (for this text) point to consider is that
sanctions, under an inherent power perspective, under the
statutory authorization of Section 1927, or, under the
procedural guidelines of Rule 11, were discretionary.
Further, both existing case law (for that time) and
tradition strongly influenced a belief that sanctions
should only be applied where there was "bad faith" (Kemper,
1989). As will be seen later, this bad .faith requirement
for sanctioning declined with the advent of Amended Rule 11
as did the discretionary aspect of sanctioning.
The Due Process Perspective.
The 5th Amendment to the United States Constitution
which applies to federal actions provides, inter alia, that
citizens will not be deprived, by federal actions, of life,
liberty, or property without due process of law. There are
similar provisions in the 14th Amendment which apply to
state actions. As Cogan (1989) relates, one of the key
questions in sanctioning, besides the merits of the
sanctions, is what quality of due process should be
provided prior to imposition of a sanction that would
83


deprive an attorney of property. Generally, a pure
inherent powers perspective on sanctions requires minimal,
if any, prior notice before imposition. In contrast, a due
process perspective would require, at the least, notice of
an impending action and a factual determination by the
judge. A full adversarial hearing would not be required.
Notice and opportunity for a hearing on the record is
sufficient (Kemper, 1989:534-538).
Distinguishing The Courts' Contempt Power
It is important to distinguish the court's general
contempt power from its inherent power and statutory and
procedural power to sanction.attorneys. The imposition of
sanctions for violation of Section 1927 or Rule 11 is
materially different from a court's power of contempt.
Section 1927 and Rule 11 were early indications of concern
with a multiplication of proceedings' and the filing and
maintenance of vexatious suits. That arena is a legal
matter concerning the quality and quantity of litigation.
Contempt of court law involves actions which are an affront
to the dignity of the court, such as insulting behavior
and/or willful failure to obey an order of the court.
Indeed, it can be stated that contempt power is the
greatest power of the court since the ability to jail,
84


fine, and seize is the means by which the court enforces
its rulings.2
Contempt law is not particular to attorneys and
generally applies in civil and criminal proceedings. Such
law applies to any parties in a matter or parties subject
to an order of the court. It should be noted, though, that
an attorney may be monetarily sanctioned, held in contempt
and jailed, and disciplined by the bar, all for the same
action. This result can occur because of the curious
intermixture in American law of custom, statute and
procedure. It is clear, however, that long prior to the
advent of Amended Rule 11 in 1983 there existed several
powerful methods to deter litigants and attorneys from
filing and proceeding with frivolous, vexatious, and
groundless litigation. The question must occur, why then
were even harsher sanctioning powers implemented when the
current ones were not being fully utilized? In order to
address this question, it will first be helpful to review
the court rule-making process.
Federal Court Rule-Making
In 1922 the Conference of Senior Circuit Judges was
established. The Judicial Conference, chaired by the chief
justice of the Supreme Court, serves as the chief
85


administrative policymaker for the federal judiciary. This
group consists of the chief judges of the courts of
appeals, the chief judge of the Court of International
Trade and a district judge from each circuit except for
Washington, D.C. (Abadinsky, 1991:161-162). The conference
is charged with many tasks. Through a wide variety of
specialized committees, it, inter alia, establishes the
federal court budget, sets ethical standards for federal
judges and decides on the qualifications of nonjudicial
court, personnel, such as court clerks. Members of the bar
sit on the committees in an advisory capacity.
Perhaps the most important task of.the conference is
to review, amend and create new rules of federal procedure
and practice. The Judicial Conference's role in the rule-
making process is defined by 28 U.S.C Section 331. The
actual drafting of changes in the Federal Rules of Civil
Procedure is done by the Advisory Committee on Civil Rules.
That committee submits its recommendations to the Committee
on Rules of Practice and Procedure for their approval. If
that committee approves of the draft it is then submitted
to the Conference at large for a vote. Adoption by the
Conference results in the changes being submitted to the
Supreme Court for approval. From there the proposed
changes are submitted to Congress.
86


Enabling Act of 1934
In 1934 Congress enacted the Rules Enabling Act
(codified as 28 U.S.C. Section 2072) which provides that
the Supreme Court can propose new rules and amendments to
existing rules of "practice and procedure" by transmitting
them to Congress. Under the Act, such new rules and
amendments must be submitted to Congress after the start of
the session but no later than May 1. Unless Congress
enacts legislation to the contrary, the new rules and
amendments automatically take effect 90 days after
submission. While Congress usually approves of the changes
by default, it is not uncommon for Congress to hold
hearings and involve itself in the federal court rule-
making process.
The political manueverings in the Judicial
Conferences7s rule-making process are problematic in that
they most probably reflect the kinds of considerations
inherent in any committee process. That the rule-making
process becomes more overtly political when Congress
becomes involved, as Carrington (1991) relates, is clearer.
For example, in 1982 several amendments to the Federal
Rules of Civil Procedure and the Federal Rules of Criminal
Procedure were submitted to Congress on April 28. These
amendments would have taken effect on August 1, 1982. The
87


proposed changes in habeas corpus proceedings (under 28
U.S.C. Sections 2254 and 2255) produced little comment.3
Changes in Federal Rule of Civil Procedure 4, which has to
do with service of process, however, did provoke
substantial comment.4 The amendment to Rule 4 would have
allowed service by mail. The intent of the rule change was
to remove some of the burden on the U.S. Marshall Service
to serve process. Many members of the private bar and the
U.S. Attorney General objected to this change seeing it as
ambiguous and flawed (see, House Report No. 97-662, at 2-4
[1982]). Congress enacted Public law 97-227 postponing the
effective date of implementation until October 1, 1983. In
the interim a compromise was worked out that allowed mail
service in some kinds of private suits but still required
personal service in cases involving the government. The
amended rule finally was approved in 1983 (source,
Congressional Record-House, September 22, 1982, p. 25019-
25020; December 15, 1982, p. 30929-30937) .
Limiting Federal Judicial Review
There has always been conflict concerning federal
court jurisdiction and the subjects of its review. As
described in chapters III and IV the Supreme Court
gradually expanded the scope of judicial review in both the
88


Full Text

PAGE 1

SOME BEHAVIORAL IMPLICATIONS OF LEGAL REFORM by Robert H. Chaires J.D., University of Denver, 1982 A dissertation submitted to the Faculty of the Graduate School of the University of Colorado at Denver in partial fulfillment of the requirements for the degree of Doctor of Philosophy Public Administration 1995

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This Thesis for the Doctor of Philosophy degree by Robert H. Chaires Jr. has been approved for the Graduate School of Public Affairs q_ 2(-9J. Date

PAGE 3

Chaires, Robert Herald, J.D. (Ph.D., Public Administration) Some Behavioral Implications of Legal Reform Thesis directed by Professor Mark Pogrebin ABSTRACT Legal reform in substantive and procedural law has occurred throughout American history and has occurred in both the civil and criminal dimensions of law. Depending on political perspective, such reform. can be considered evolutionary, devolutionary or even revolutionary. In the Kuhnian sense, some contemporary legal reforms in civil and criminal procedure can be conceived of as substantially contributing to a paradigmatic shift. That shift is in the direction of a dominant perception that the American courts cannot and should not be used as a forum for the establishment and vindication of individual rights and social values. In a behavior of law perspective two contemporary legal reforms, 11sanctions11 and application of the 11cause and prejudice11 test to abandonment in federal habeas corpus, are analyzed in the context of civil rights litigation and criminal justice. Various perspectives as to why the express intent behind such legal reforms differ from their behavioral impact are also presented and discussed. Three conclusions are reached. The first is that civil sanctions behavior operates to increase the likelihood that civil rights attorneys advocating changes in the status quo will be punitively sanctioned. The second is that criminal procedure reform in general has encouraged improprieties in law enforcement practices and that reform in habeas corpus has made it more difficult. to discover and remedy those practices. Finally, in combination, certain legal reforms have had an adverse impact on the ability of marginalized individuals and groups to control discriminatory practices and policies in criminal justice through the venue of the courts. This abstract accurately represents candidate's thesis. I recommend it iii

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CONTENTS CHAPTER 1. INTRODUCTION 1 Statement of Problem .................. 1 Methodology . . . . . . 2 Defining Civil Law Reform ............. 4 Contract Law 6 Tort Law 6 Damages 8 Civil Law and Civil Rights 9 Nonmonetary Remedies in Civil Rights ..................... 11 Types of Civil Law Reform ............. 12 Removal . . . . . . . 13 Caps . . . . . . . . 20 Fee shifting . . . . . . 23 The American Rule ................... 24 Negotiation and Litigation Under The English Rule . . . . . 25 The Impact of Loser Pays . . . 26 Enter Sanctions ....................... 27 Defining Criminal Procedure Reform .... 28 iv

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The Context of Early Criminal Procedure Reform ." .................... 29 The New Reforms ....................... 30 Expansion of Federal Police Power ... 30 Lessening Burdens of Proof .......... 31 Limiting Habeas Corpus .............. 34 The Evolution . . . . . 35 The Fall of Habeas Corpus ............. 38 Conclusion ............................ 38 Chapter 1 End Notes ................... 39 CHAPTER 2. DEFINING "BEHAVIORAL IMPLICATIONS" ...... 45 A Context for Paradigms ............... 47 The Meaning of "Paradigm" ............ 49 The Paradigms of Social Science ..... 50 The Paradigms of Law .................. 51 Models and Paradigms of Law ......... 52 The Limits of Legal Theory .......... 54 Figure 2.1: Matching Paradigms and Models ................ 55 Why a Behavioral Perspective .......... 57 Explaining the Behavior of Law ........ 58 Downward Law is Greater than Upward Law .......................... 58 v

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Law Varies Directly With Culture .... 59 The Implications of the Behavior of Law . . . . . 61 Legal Reform as Legal Behavior ........ 62 Alternative Perspectives ............ 63 Coming Together: Paradigm Shifts, Legal Reform and the Behavior of Law .. 65 A Framework for Change in Judicial Decision Making ....................... 67 Social Considerations ............... 70 Rejecting the Pendulum .............. 72 Chapter 2 End Notes ................... 75 CHAPTER 3. THE MOTIVES OF REFORM ................... 77 Some Historical Perspectives .......... 77 Abuse of Process and Malicious Prosecution as Early Torts .......... 78 Early Court Power to Sanction ....... 80 Early Statutory Authority to Sanction ........ . . .. . 81 The Early Rule 11 . . . . 82 "Bad as a Sanctioning Requirement . . . . . . 83 The Due Process Perspective ......... 83 Distinguishing The Courts' Contempt Power ............................... 84 vi

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CHAPTER 4. Federal Court Rule-Making ............. 85 Enabling Act of 1934 ................ 87 Limiting Federal Judicial Review ...... 88 Expanding and Contracting Federal Judicial Review . . . . . 91 Frivolous Claims and the Rise of FRCP 11 . . . . . 92 The Forces of Change .................. 97 Tort Reform Perspectives ............ 96 Judicial Control Perspectives ....... 101 Controlling Abusive Conduct ........ 104 Looking at the Numbers ............... 106 Federal Court Load Circa 1982 107 Federal Court Load .Circa 1993 108. Comparison . . . . . . 110 The Enactment of Amended Rule 11 ..... 112 Congressional Intent in Amended Rule 11 ...................... ,. . 113 The Actual Construction of Amended Rule 11 ................................ 115 Chapter 3 End Notes .................. 118 THE BEHAVIOR OF REFORM 120 The Behavior of Rule 11 .............. 121 The Supreme Court and Sanctions ...... 124 vii

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Satellite Litigation ............... 125 Measuring Actual Usage ............. 126 Conflict on the Utility of Sanctions 128 How Cold is Chilling? Rule 11 and Civil Rights Litigation .. 132 The Ambiguity of Civil Rights 134 Symbolic Litigants in Civil Rights Litigation . . . . . . 13 7 Attorney Involvement in Civil Rights. Litigation The Courts and Civil Rights 138 Litigation . . . . . . 141 The Myth of Conservative v. Liberal Judges . . . . . 143 A Framework for Judicial Conservatism . . . . . . 145 Appealing Sanctions 147 Sanctions and Civil Rights ........... 149 Criminal Justice and Sanctions 150 Civil Rights Litigation and Congress ......................... 152 Private Attorney Generals 154 Expanding and Contracting "Prevailing" . . . . . 156 The Almost Reform of Rule 11 ......... 157 The Early Movement for Change 158 viii

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Chapter 4 End Notes .................. 164 CHAPTER 5. THE INTERSECTIONS OF REFORM ............ 166 Criminal Procedure 1786-1986 168 The "Due Process" Revolution 170 Intersection . . . . . 171 From Mapp to Katz .................. 171 The Symbolism of Katz .............. 174 Intersection 175 The Post-Modern Era ................. 176 The Current Status of Balancing ..... 178 Pretext . . . . . . . 17 9 Expanding Pretext ................. 180 Closing Other Doors 181 Evolving the Not So Modern Post-Modern Law ................... 182 Illusion . . . . . . . 182 A Practical Redefinition of the 4th Amendment ..................... 184 Beyond Suspicion .................. 185 Sleight-of-Hand ...................... 187 The Final.Step 188 Intersection 190 .The Question of Appeal 190 ix

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Limiting Appeals .................. 192 Criminal Conviction ............... 193 Direct Appeal . . . . . 195 Post-Conviction Relief ............ 197 Intersection . . . . . 201 The Rise and Fall of Habeas Corpus ... 202 Limiting Habeas 203 Intersection . . . . . 206 Enter McClesky ...................... 206 Beginning the Merger ................ 209 Chapter 5 End Notes ................. 213 CHAPTER 6. REFORM IMPLICATIONS: A CONCLUSION ...... 222 Encouraging State Law Breaking While Limiting Remedies .............. 223 The Politics of Crime and Discretion . . . . . 225 Who Suffers . . . . . . 226 Who Pays . . . . . . 228 Intersection ..................... 229 Reviewing Judicial Review ............ 230 Intersection ..................... 233 Let's Kill All the Lawyers ........... 233 A lawyer by Any Other Name ......... 234 X

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Sanctions Behavior and Legal Conflict ........................... 236 Expanding Sanctions ................ 237 Intersection . . . . 238 Toward the Future 239 Avoiding a Last Hurrah for Civil Rights Litigation ................ 241 Limiting the Impact .. . . . 243 Chapter 6 End Notes .......... .... 248 BIBLIOGRAPHY .... . . . . . 248 xi

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DEDICATION It is difficult to fairly dedicate a writing such as this. Most assuredly little bits and pieces of all my professors in law school and the Graduate School of Public Affairs are in it. But I must give special recognition to three faculty. To Mark Pogrebin who taught me how to avoid cynicism in criminal justice, to E. Sam Overman who opened my mind to the nature of theory and to Lloyd Burton who rebirthed this writing and my scholarship--thanks. Finally, I must express my gratitude to my wife Susan whose tolerance, and not so gentle nudging, all these years has finally born fruit. xii

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CHAPTER 1 INTRODUCTION Statement of the Problem Legal reform occurs in three major ways. The first is through reform in procedure. The second is -through reform in statutes.1 The third is through changes in interpretations of procedural and statutory reform and/or reinterpretations of existing procedure and statutes. This last can also be called substantive reform. Reform can be specific to one of the major divisions of the law, for example, civil and criminal, or subdivisions, i.e., tort and contract within civil law. In some instances, individual legal reform(s) may have unintended or unanticipated results .in that another subdivision of law is adversely affected. In other circumstances reform in two distinct areas of the law may combine to produce unanticipated impacts. This text argues that such unintended and unanticipated results occurred, individually and in combination, when two distinct reforms, Federal Rule of Civil Procedure .11: Sanctions (Rule 11) .and limitations on federal habeas corpus access, developed and 1

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evolved during the 1980's and 90's. More specifically, this text argues that the unintended or unanticipated results of these reforms have been adverse, distinct ways. individually and in combination, in three The first is that Rule 11 has had the substantial effect of "chilling11 the use of civil rights litigation in federal courts to create new rights or to vindicate existing ones. The second is that fede-ral habeas corpus reform has adversely impacted the ability of state criminal defendants to receive a "fair trial" and convicted persons to obtain meaningful federal review of state criminal convictions. Finally, such reform has in combination had the substantial effect of c reating a situation where the public, politically weak individuals .and groups, particularly has .little meaningful remedy for abuses of the criminal justice system. As a result, the ability of the public to utilize the courts in order tomeaningfully control abuses of the criminal justice system has been seriously impaired. Methodology The etiology of particular legal reforms is .complex and multi variant. The same applies to the reasons why legal reform may "behave" in a particular manner. To 2

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approach the complex issues involved in legal reform, a historical-legal-behavioral approach is taken; that is, first the express intent of such reform will be analyzed and then an analysis of the actual performance of the reform will be done. In analyzing actual performance, particular emphasis is given to Black's (1976) "Behavior of Law" approach to analyzing and predicting legal behavior. In structure, this text will consist of six chapters. This chapter gives a broad overview of civil and criminal law and procedure and some examples of reforms. Chapter II will present some theoretical and practical limitations of this text and define the dimensions of a behavioral perspective. of legal analysis. Chapters III and IV will concentrate specifically on the evolution and practice of one civil procedure reform, Sanctions. Chapter V will focuses on criminal procedure and federal habeas corpus reform and practice. Chapter VI expands on the behavior of law focus and displays how civil and criminal reform can combine t9 produce adverse results. Finally, chapter IV conludes this text with some predic-.tions about future reform and its behavior. Caveat: In any writing about law addressed to a general audience it is necessary to avoid the assumption that everyone understands the "basics. For this .reason. 3

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parts of this text, particularly the beginnings of chapters I and V are perhaps too descriptive and basic. For those bored by the detail, an early apology is entered. Defining Civil Law Reform It is a common myth that civil law is primarily concerned with the idea of compensation between private parties. Civil law and procedure :also encompasses the majority of private/government relations; hence, a civil rights suit against the government is part of civil law. Even this broad definition of civil law does not truly reflect its breadth and importance in American society as a mechanism for dispute resolution. Further, because of the wide variations in civil law resulting from state domination in its origin and interpretation, the term civil law does: not reflect many of the political dimensions of law. Some commentators like Tarr (1994:9-13) note that law can be divided into two spheres, public (involving the government) and private (involving only private parties) Most commonly, American law is divided into four major groupings: Criminal -Civil -Administrative -Constitutional These groupings are, however, not really so distinct. 4

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Constitutional issues are inherent in criminal law and procedure and are quite common in civil and administrative law and procedure matters. Criminal and civil procedure are similar at the trial level but have critical constitutional differences. Administrative law is conceptually and procedurally different at the hearing level but merges procedurally with the other eras of the law at the review and appeal level. Within the .civil law in .particular. there is an incredible diversity of specialized areas of law such as family law, labor law and corporate law. Some of these areas, such as labor law, are hybrids of constitutional, administrative and contract law which arguably deserve separate classification. Most of these specialized areas, however, are merely variations of the contract and tort law developed through of Anglo-American common law tradition. American law is often confused and intertwined, but perhaps more than any other nation, America depends on its courts to resolve complex societal issues. Many of those issues are criminal in nature, but most are civil. As developed later in this text, though, civil issues in this society can be vast and far reaching and intimately intertwined with criminal issues. One .characteristic of civil law is its burden of 5

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proof. Generally, a civil law plaintiff is required to prove his or her, or in the case of an artificial person, its claim, by a "preponderance of the evidence."2 In many ways, then, when one talks about "civil law" what is really meant is a distinct set of procedures applied to resolving noncriminal disputes. However, even here the distinctions become doubtful because "Constitutional Law" bridges both civil and criminal law and may have different burdens of proof at the trial level depending on the kind of action. Thus, it must be proven "beyond a reasonable doubt" that a law is unconstitutional. Further, criminal procedure at the appellate level is procedurally "civil law." Contract Law Contract law involves the .formation, interpretation and enforcement of an agreement. Generally, issues may include the existence and meaning. of an agreement as well as damages resulting from nonperformance by one party. Compensation (damages) can be monetary as is the case of lost profits or the cost of finding a replacement party to perform. A contractual remedy can also be "specific performance," i.e., to sell or deliver the item at issue to the plaintiff at the agreed upon price or in the agreed upon condition (see Calamari and Perillo, 1987) 6

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Tort Law Tort law involves a civil wrong by one entity against another. Torts generally fall into one of three classifications: malfeasance, an intentional or malicious wrong; misfeasance, a wrong committed as a result of negligence; and nonfeasance, a failure to perform a duty. Torts may or may not, require. a special relationship to exist (such as, doctor/patient). Most often they do not. The same act, depending on the mental stat. e of the party which can be inferred from the circumstances, may be malfeasance, misfeasance, or nonfeasance. Thus, if a person drives a car in a reckless manner and strikes a pedestrian, that is the tort of battery (wrongful touching) and may be malfeasance. If the person drives the car and inadvertently runs a stop sign and hits a pedestrian, then that is the same tort of battery, but may be only misfeasance.. Nonfeasance is more difficult to define. An example would be allowing a nonlicensed minor to drive a car. It could be argued that the party was negligent (misfeasant) in allowing the minor to drive the car or nonfeasant in failing to perform the duty of not letting the minor drive the car. In general, tort law involves initially establishing the presence of a duty, i.e., not to commit an unlawful 7

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touching, and then establishing whether the act or breach of duty was malicious, negligent, etc., by a preponderance of the evidence. The question then becomes one of damages. Establishing "new duties 11 is, of course, part of the evolution of American law. For example, 20 years ago most nonunion employees were "employees at will" and could be discharged for any or no reason. Now, some states (like Colorado) recognize an "implied contract of employment 11 and allow damages against a breaching employer. In still other states there now exists a tort of "wrongful discharge.11 Damages Tort damages differ several ways. Generally, allows "actual damages". from contractual damages in contractual litigation only These are the actual costs incurred as a result of the contractual breach. Tort law allows besides actual damages monetary compensation for more intangible harm such as.pain and. suffering. These are often referred to as "general damages." In addition, -in certain circumstances, with an increased burden of probf and a showing of malfeasance, tort law allows "punitive damages. These damages, which can be substantial, are intended to punish a defendant for outrageous conduct and/or deter others from similar conduct.3 8

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Civil Law and Civil Rights Civil rights law and practice differs from civil law and practice only in degree and defendant. Simply put, if a private citizen strikes another private citizen, that may be a tort or a criminal act. However, if a government actor hits a citizen, this maybe a "constitutional tort" or a crime. Constitutional tort is another name for a kind of civil rights violation; that is, the citizen was deprived of a right to be free from unnecessary force. This assumes, of course, there is no legally valid justification for the act on the part of the government actor. In addition, it is important to appreciate that a private party can also commit a "constitutional tort." Ergo, 42 USC Section 1985 prohibits private persons .from committing civil rights violations. For example, if a private individual hits a person "because" that person was black, a civil rights violation may stand. Hybrid situations where there is both state tort and constitu tional tort violations often occur. This frequently happens. when a private party is. found to be a de facto state actor as in the operation of a private prison (see, for example, Chaires and Lentz, 1995; Robbins, 1988; NOTE, 1987) 9

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Civil rights violations may also occur in a contract context. Thus, 42 USC Section 1981 prohibits private parties from contractual discrimination on the basis of race. In the same vein, legislation such as the Civil Rights Act of 1964, the Civil Rights Act of 1991, The Americans With Disabilities Act, and the Age Discrimination in Employment Act apply in varying degrees to both governmental and private entities (Chaires and Lentz, 1994) Where specific statutory language does not create a right, the more generic prohibitions of the 14th Amendment with its "equal protection" and "due process" clauses create rights that a state may not violate absent compelling circumstances. In short, civil rights law and litigation arises from a broad range of sources. Moreover,, such litigation is subject to the same set of civil procedure rules that control a contract case or a tort case. There is, however, a major difference between a civil tort case and a constitutional tort case: in a "civil rights" case the government actor(s) has absolute or qualified immunity from suit depending on a variety of circumstances to be described later (see for example, Nahmond, 1993:3-64). This effectively places a greater burden of proof on the civil rights plaintiff. Thus, a civil rights plaintiff is 10

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subject to procedural rules that may not consider the special circumstances and burdens in civil rights litigation. This often makes it more difficult for the civil rights plaintiff to achieve meaningful relief. Nonmonetary Remedies in Civil Rights To further distinguish civil rights litigation from civil law litigation in general, it is important to note that often the.primary purpose of a civil rights suit is not to obtain money damages for a plaintiff but to obtain injunctive and/or declaratory relief for a class (see Nahmond, 1993:361-403). This recognition,-. that civil rights suits often do not involve sums of monetary damages sufficient to justify the involvement of private counsel ('in the attorney's perspective), was at l-east in part the reason for Congressional passage of the Civil Rights Attorney's Fee Awards Act of 1976 (codified in 42 U.S.C. Section 1988). Congress recognized ... that litigating against the often overwhelming resources and power of the government is difficult and expensive, but often necessary if important rights are to be vindicated. Indeed, the Act was passed in 1976 in response to the Supreme Court's ruling in Aleyska Pipeline Serv. Co. v. Wilderness Society. (421 US 240 11

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[1975]) in which the Court held that under the "American Rule" federal courts had no power to award attorney fees in public interest cases (Nahmond, 1993:338) .4 Arguably, the government can have no compelling, legitimate interest in continuing an unconstitutional practice. As such, there must exist a practical means to test the legitimacy of particular state actions, i.e., civil .rights litigation. It would be reasonable, therefore, to recognize special exceptions (for civil rights litigation) to certain limiting civil procedures. These would not be exceptions that weight the litigation process in favor of a plaintiff but exceptions that maintain open access to neutral courts as a practical means of testing governmental conduct. Exploring civil law reform discloses, lwwever, that many of these reforms adversely impact on maintaining that open neutral court perspective. Types of Civil Law Reform Not surprisingly, the vast majoritT of civil law reforms at the federal and state levels have addressed the .following: (1) limiting the ability of individuals to complain about such wrongs in the 12

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Removal venue of a civil jury trial (Removal); (2) limiting the amount of damages (Caps) ; and (3) discouraging plaintiffs and attorneys who represent plaintiffs from bringing such cases (fee shifting) Removal covers a wide variety of procedural reforms designed to remove. legal and factual disputes from jury review and resolution. Examples of removal are mediation, arbitration and trials to a judge The rational removal usually centers on the issues of economy and simplicity. Historical Perspectives. Historically,. it. should be noted that mediation, arbitration and trials to a judge by farpredate, in idea and practice, the use of for resolving legal and factual disputes. 5 There are some references to earlier jury-like activities. A 12 man-body was established in Wales by King Morgan of Gla-Morgan in 725. In the 9th century Danish king Canute enacted a law requiring 11 12 elders 11 in each village to swear out accusations against wrongdoers (see Guinther, 1988: 6-8) 6 13

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The establishment of the jury system in the American colonies met with mixed success. Auerbach ( 19 8 3) notes that early Puritans and Pilgrims rejected the English trial system in favor of binding arbitration by church elders-: Later, as the colonies grew in complexity and size, they adopted a traditional, if modified, common law legal system. Indeed, it is Auerbach's observation that the vast majority of immigrant groups .coming to America initially rejected the traditional legal system in favor of some form of intragroup mediation or arbitration. Eventually, though, .folk custom integrated with the American legal system as subsequent generations become more removed from their dispute resolution traditions. The American Jury. In the colonies, the idea of trial by jury evolved into a political statement and a political protection.7 Fearful of the power of "jury nullification" and a free press, the Crown turned to the Admiralty Courts where no juries were allowed. For example, the Stamp Act of 1764, passed by Parliament ostensibly to supportthe cost of maintaining a standing army in America, but containing a tax on newspapers, was enforced through the juryless Admiralty Court as were other laws including the Navigation Acts. The effect of these efforts was to enrage the public and contribute to the American Revolution. 14

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Thomas Jefferson in the Declaration of Independence related "depriving us, in many cases, of the benefits of trial by jury" as one of the reasons for the revolution (Guinther, 1988: 31) The importance of jury t .rials in both civil and criminal matters was clearly emphasized by our Founding Fathers. Article III, Section 3, of the Constitution of the United States enacted 17 September, 1787, guarantees the right of trial by jury for high crimes and misdemean-ors. There was, however, pressure for. even stronger individual rights and protections, so the first ten amendments to the Constitution, commonly referred to as "The Bill qf Rights," were enac.ted on December 15, 1791. Of these, the Sixth Amendment further delineates rights in :criminal trials and the Seventh Amendment states: In suits at common law, where the value in controversy shall exceed twenEy dollars, the right of trial by jury shall be preserved, and no fact tried by jury shall be otherwise reexamined in any court of the United States other than according to the rules of the common law. The Founding Fathers in the Seventh Amendment recognized that the jury system was critical to offset the power of both government and the politically powerful. Alexis DeTocqueville, in his famous Democracy in America 15

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chronicling his 1830's tour of America, pictured the American jury as more of a political than a judicial institution. As DeTocqueville summari.zed over a 150 years ago: The jury may be an aristocratic or a democratic institution, according to the class from which the jurors are selected; but there is always a republican character in it, inasmuch as it puts the real control of affairs into the hands of the ruled, or some of them, rather than into those of the rulers (1966:272). But, it is precisely the republican character of a jury that brought about attempts .to control it in .post-revo-lutionary America.8 Controlling the Jury. Horowitz (1989: 377). observed "merchants were not fond of juries. rt That is, commercial interests saw a legal based on conscience and/or fair play rather than strict adherence to rules as a threat to the legal stability and predictability needed to conduct business. Hence, after about 1790 the power of the jury, particularly in civil matters, rapidly began to wane. (1989) lists t:Q.ree major procedural devices which were developed by the bench and the bar to protect commercial interests: The Special Case involved separating "fact issues" from "legal issues" and. developing the practice of the 16

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judge alone being able to decide legal issues. Judgements Not Withstanding the Verdict developed in criminal and civil cases. In criminal cases the trial judge may reverse a "guilty" (but not a not guilty) verdict on the grounds of insufficient evidence. In a civil case the judge may either reverse a finding for the plaintiff for a verdict "contrary to the weight of the evidence" and/or award either party a new trial. The Development of Jury Instructions has limited the power of the jury to.make decisions based on its conscience and operated to .guide jury discretion in a direction cons;istent with "established law." By 1820 much of the power.of the jury in civil matters had been removed. The effect of these "reforms" was to limit the power of the jurors to make decisions based on their collective idea of justice. In civil matters, however, judicial nullification of jury consc-ience has evolved into the rule rather than the exception (see for example, Schnapper, 1992). Limitations on the 7th Amendment. It is helpful to remember that the Seventh Amendment requirement of jury trials does not apply to all civil matters. Proceed-ings in equity which emphasize fairness more than formal compliance with a law, such as requests for specific performance on a 17

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contract, are not heard by a jury. Also, specific statutes granting rights or entitlements may limit the forms of redress to trials to the court or even non-judicial resolution, such as arbitration (see, for example, Labriola and Scolieri, 1992) More importantly, the Seventh Amendment has .been held not to set a mandatory requirement on the States. As Klein (1992) relates, the idea that theFounding Fathers desired jury trials in all civil matters is a myth. For example, in Galloway v. U.S. (319 U.S. 372 [1943]) the Court rejected the traditional common law. historical analysis of Seventh Amendment right to jury trial. Further, the Court has held that procedural. barriers removing a case from j .ury review do not violate the Seventh Amendment (Klein, 1992 :1024-1025). Thus, whether one wishes to take an incorporation approach or a .sovereign immunity approach, states do not have to provide civil jury trials. Indeed, it was not until the 1960s that states were required to provide jury trials in all serious criminal matters. Most states, however; have chosen to provide similar trial by jury guarantees in their state constitutions (Abadinsky, 1991:266). However, even where a state civil jury right exists; the legislature and the courts may require .. the exhaustion of other remedies, such as 18

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arbitration, before the civil trial right may be exercised (see for example, Burton, Mciver and Stinson, 1991; Mciver and Keilitz, 1991). Summary Judgments. Another mechanism effectively removing cases from jury review is the increased utilization of motions for summary judgments. A summary judgment motion is a request for-the court to summarily rule on the case because (allegedly) no "material facts" are. in real dispute and, thus, a jury trial is not needed. Summary judgments have become popular because they allow courts -to clear their trial dockets.. Until the 1980s, however, summary. judgments were discouraged in all .. but the most factually clear cases. increasingly successful use suggests a change in judicial philosophy from one of encouraging jury trials to resolve complex issues toone of encouraging judges to resolve such issues (Klein, 1992:1028-1036). This even occurs when a jury is involved and makes a judgment. Schnapper (1992) relates that courts, trial and appeal, often "reinterpret" the facts and therefore intrude on an area historically reserved to the jury.9 Reform Today.Much of legal reform today, as in the past, focuses on removing litigation from jury consideration. There are several valid reasons for such a 19

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direction, not the least of which is judicial economy. Also, not unlike the situation in the late 18th century, commercial interests claim that juries cannot rationally decide complex questions of liability and damages and/or that juries are swayed by their emotions to such an extent that commercial defendants are subjected to uneven and inconsistent application of the law. Kirs.t (1986: 333) for example, once predicted that "all disputes now heard on the civil jury docket could be directed elswhere, leaving the 7th Amendment an empty shell." The United States Supreme Court is due to decide an important case in 1994. In Badie v. Bank o America (944916) the court will decide if the Bank of America can require its customers to submit disputes to binding arbitration. As Donvovan (1994) relates, the. case may have strong implications for the expansion of the existing practice of including mandatory arbitration clauses in contracts. Perhaps the biggest impact could be on class action litigation. In.circumstances where legal reformers have not been successful in removing cases from juries, they have often been successful in limiting jury awards. Numerous states 20

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have implemented law imposing ceilings on awards. Such ceilings may bear little relationship to the harm that may have been suffered by a particular plaintiff. Litigation and Damages. In theory, a civil case, contract or tort, involves a plaintiff who alleges that a defendant breached some duty and that some harm resulted to the plaintiff. In a legal document called a "Complaint" the plaintiff sets forth his or her perspective on the facts of the case, the legal grounds on which the breach of duty claims (there are usually more than one) are based and the relief requested to compensate the plaintiff. In -turn, the defendant responds with a document called an "Answer" in which s/he admits or. denies each allegation of the plaintiff and interposes "affirmative defenses" as -to why s/he should not be liable. for the alleged harms. The plaintiff and defendant, called "parties," then engage in "Discovery" to determine what "evidence" the other has to support his or her case ending with a trial where the facts, liability and damages are determined.10 As in criminal trials, the jury is the wild card in a civil trial. More than the expense of a trial, the ostensibly unpredictable nature of the jury encourages both sides in a controversy to settle the case. liability and the more outrageous the 21 The clearer the conduct of the

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defendant, the greater will be the pressure to settle and control the damages. This is particularly so in cases where punitive damages are requested. Since punitive damages require, at the least, an evidentiary showing of reckless or malicious behavior on the par_ t of the defendant, it is likely that on a finding the defendant liable the jury will simply award higher sums. Because punitive damages are given to punish a defendant for particularly outrageous conduct, or, to deter others from similar conduct, punitive damages can be many times the amount of actual.and general damages. Attorney Fees and Damages. It .is from the damage award that plaintiffs' attorneys usually receive their fees. Thus, the existence of punitive damages is a major motivator in an attorney taking a case. In many instances a plaintiff, particularly a civil rights plaintiff, may have suffered no damage in the traditional sense. There may be no broken bones, no medical bills, no loss of property. Awards to compensate the plaintiff may, therefore, be nominal and, as such, insufficient to attract an attorney to take the case. A large percentage of plaintiffs' practice operates on a contingency fee basis where plaintiff's counsel receives a percentage of any award. There must be enough potential money in a case to 22

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justify the attorney assuming the risk of undertaking the case. After all, under the usual contingency fee agreement, the attorney will receive nothing if s/he does not prevail (Schmidt, 1987). A delicate balancing problem occurs in most cases for each side. Does a plaintiff spend $10, 000 dollars to recover $5,000 in damages? Does a defendant spend $10,000 to avoid paying $5,000 in damages. One reality of practice is that it is not much less expensive to fight a $100,0000 case than it is a $1,000,000 case. A complex equation of .probabilities for loss and win occur which Ross (1980) outlines in his classic work on negotiation. In the case of the plaintiff's attorney, .the equation is skewed by the win or no pay scenario. That scenario does not exist for defense counsel. who are usually paid whether they win or lose. Fee Shifting The impact of fee s hifting (becoming responsible for the opposing party's attorney fees) in any form is dramatic, but often hard to measure. That is, how does one measure the "costs" of meritorious claims not filed or the social price of limiting access to the legal system? A brief comparison and contrast of the American and English 23

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rules and an introduction to sanction s law will address some of these issues. The "American Rule" Under the American rule, generally, a litigant can only recoup his or her attorney fees from the other side under three circumstances: The first occurs when there is a specific statute. For example, some civil rights statutes allow recovery under "private attorney general acts." This will be covered more extensively in chapter III. The second circumstance is the existence of a specific agreement, usually a contract, which states that the prevailing party in litigation will pay the other side's costs and attorney fees. Many loan agreements and leases contain such clauses. The third arises when a court finds that the actions of one side are so egregious that attorney fees should be awarded as a matter of public policy. Historically. Anglo-American legal tradition has been to reject the English Rule that the loser pays the opposing party's attorney fees. In 1796 the U.S. Supreme Court in Arcambel v Wiseman (3 U.S [3 Dall] 306) held that "the general practice of the United States is in opposition [to the English Rule) (Conlin and King, 1992: s -a-). The 24

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American system has continued in that tradition. To date, the American policy has generally been that it is better to have a winning defendant be responsible for his or her own attorney fees than to discourage access to the courts.11 Negotiation and Litigation Under the English Rule Negotiating under the English rule is substantially different than under the American rule. Conlin and King (1992) and Kritzer (1992) relate that extensive legal services plans exist in England. These plans, primarily funded by labor organizations, remove much of the onus of having to pay if you lose a suit since the legal services plan absorbs the cost. In addition, attorneys, both solicitors and barristers, working under such plans are paid their fees win or lose. However, Judge Patrick Devlin of the English courts notes that "Everyone knows, every lawyer particularly knows, that for the ordinary citizen unqualified for Legal Aid a lawsuit is out of the question" (cited, Kritzer, 1992:55). Kritzer relates that plain-tiffs, to avoid the risk of fee shifting, may settle their cases earlier and for less. As Judge Devlin states, the unassisted litigant, "must take what is offered to him and be glad that he has got something," (cited, Kritzer, 25

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1992 :56) .12 Well-funded public interest law firms that will undertake cases for those with-marginal or no resources do exist in the United States. Groups like the American Civil Liberties Union and various consumer groups have long histories of playing David against Goliath sized economic interests and the government. However, the resources and support of such groups are really not available to everyone Public interest law firms pick and choose their cases carefully to prove a particular point.13 The average potential litigant must find an attorney to take the case and then hope that their interests will be served. With the existence of the contingency fee, there are attorneys willing to undertake meritorious, if difficult, claims. The client benefits by this availability and American society benefits from at leasb the illusion, if not the reality, of open access to the courts; The Impact of Loser Pays The imposition of a loser pays rule, as advocated by groups such as the President's Council on Competitiveness (Kritzer, 1992; see also Chambers, 1992A), or as introduced in Congress as part of the Access to. Justice Bill in the 102nd Congress (S 2180, H.R. 4155) for federal 26

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diversity cases (Conlin and King, 1992), would dramatically alter the status of litigation in America. It is likely that fewer people would stand up and demand justice if they had to face the possibility of paying the costs and fees of the other side. It is also likely that many of the public interest firms would have to change their decision making models to include potentially severe losses to Proponents of an English style rule argue that it would increase access to the courts. By limiting contingency fees and requiring the loser to pay "reasonable fees," proponents hold that attorneys would be encouraged to undertake smaller meritorious cases where the potential recovery does not justify taking a case on a contingency basis (Kitzer, 1992) This is a not inconsiderable point. 15 To a substantial degree, however, the questions of American v. English rules may have become moot. The advent of Federal Rule can be considered a de facto imposition of the English rule. Enter Sanctions Another method of fee shifting is the use of procedural rules or specific statutes intended to "discourage" attorneys from filing frivolous claims or interposing frivolous defenses. Amended Rule 11 of the 27

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Federal rules of Civil Rules of Procedure is the classic example of such civil law reform. Arguably, sanctions operate as a de facto "English rule." However, reforms like Rule 11 go a long step further. Under the English rule, it is the losing client who would be responsible for the payment of the other sides costs and fees. Under Rule 11 and its state-based progeny, it is the attorney who can become personally responsible for such costs and fees. Under the concept of sanctions, a court can order, among other things, an attorney to pay the other side's attorney fees if the court deems. that .the attorney (s) has violated one of several sometimes ambiguous .standards for the investigation, filing, and litigation of a claim. (This will be covered extensively in chapter III.) Perhaps more impqrtantly Rule 11 type sanctions can be sought by a party at any time in litigation. Under the English rule costs and fees do not come due until a party has "lost" (unless there was a settlement). Thus, a party at least has a chance to litigate a claim at trial. Under Rule 11 type proceedings, a claim can be dismissed and sanctions ordered at anytime after a claim is filed, prior to, during, and after a trial (Gregory, 1990; 1988A; 1988B; Chrein and Duffy, 1985) More on point for this text, Rule 11 has had a disproportionate and adverse effect on civil 28

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rights litigation. (Cochran, 1991; Taylor, 1991; Kuntzler, 1991; Tobias, 1988; Cochran and Vairo, 1988; LaFrance, 1988) Defining Criminal Procedure Reform American criminal procedure is in many ways unique in its juxtaposition of federal and state powers, judicial review and local political control of the vast majority of. law enforcement practices. In those dimensions, criminal procedure reform can be seen as the attempt to resolve significant regional disparities in law enforcement practices which reflect regional disparities in concepts of civil rights. The Context of Early Criminal Procedure Reform It is critical to the thesis of this writing to appreciate that criminal procedure reform qid not and does not occur in a vacuum. Criminal procedure reforms have almost always occurred in the context of change in the society as a whole. Civil rights in general carne into greater focus along with a recognition of disparate treatment of minorities (see, for example, Burns, 1990; Freeman, 1990). As will be discussed in Chapter IV, much of this reform was. predicated on a change of judicial 29

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vision not only as to the role of the courts in general institutional reform but also in shaping national values. Ergo, the courts became concerned with reform in pretrial and trial activities along with post-conviction activities such as direct appeal and access to federal habeas corpus. review of state actions. Visions come and go, however, and the 1980's and 1990's saw criminal procedure reform in a different direction, again predicated on a different view .of the role of federal courts. The New Reforms The new reforms in criminal procedure can be categorized into three main areas: Expansions of federal police power, lessening burdens of proof and restrictions on federal review of state criminal procedure. Expansion of Federal Police Power In a purely technical sense there is no federal police power. "Police Power," the inherent ability to legislate for the protection of the health and safety of the citizenry, is reserved to the States under the lOth Amendment. Federal law enforcement power must come from some specific constitutional grant of power such as the "commerce clausen of Article I of the US Constitution. In 30

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this vein, the expansion of federal police power is not strictly "procedural reform11 but rather an expansion of federal jurisdiction to criminal activities which had been the exclusive province of the states (see, for example, Wallace, 1993). Further, this expansion through vehicles such as RICO (Racketeer Influenced and Corrupt Organization) and quasi-criminal penalties such as forfeiture has resulted in the 11criminalization" of conduct which haq been civil in nature.16 Finally, reforms in federal sentencing grew out of the Comprehensive Crime Control Act of 1984 (18 U.S. C. Section 1 n. ) These sentencing reforms were intended to limit disparity in sentencing but have h.ad t.he opposite result. They have produced .prosecution and sentencing practices having-adverse impacts on minorities (Shein, 1993) and women (Raeder, 1993A) whilereducing the ability of judges to fashion sentences which consider the unique aspects of an individual case. Lessening Burdens of Proof RICO by itself has created a difficult burden .of proof for a defendant. RICO, which involves conspiracy theory based on a 11hub and spoke11 approach, allows such anomalies as attorneys being prosecuted for defending criminal defendants when they 11knew or should have known11 that the 31

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money paid to them was obtained from a criminal enterprise (Axelrod, Price and Thornton, 1993) 17 Such a legal approach menaces both the fundamental American criminal procedure premise of 11 innocent until proven guilty" and the Sixth Amendment "right to counsel." At a no less important level, RICO practice damages the very concept and practice of zealous advocacy as required by the Canons of Professional Responsibility for attorneys and the inherent concepts of an adversarial system. Civil forfeiture, at the federal and state levels, allows the government to seize property "obtained through or used in" a criminal enterprise. Since the seizure is civil in nature the .burden of proof is the civil law preponderance of the evidence rather than the criminal law "beyond a reasonable doubt.". Perhaps more importantly, even if the government does not prevail in the criminalconviction, and it does not even have to proceed with a criminal prosecution, it may pursue forfeiture independently (for example, King, 1992:10-11). Further, it is not clear to what extent a defendant in a civil forfeiture may claim the benefits of the exclusionary rule or invoke Fifth Amendment protection, although the courts are beginning to address those issues (Warner, 1994') In short, the defendant in a civil forfeiture proceeding may be putting 32

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on the record things which may be used against him or her. By no means is there any consensus on the use and/or abuse of RICO and Civil forfeiture kinds of law and procedure. Reske -(19.94},.:: for examplei .. relates that there is substantial concern about expanding RICO law to limit abortion protests. Quite legitimately, however, many law enforcement interests point out that the complex, often international,.webs of organized crime require specialized tools (see, for example, .Wallace, 1994; Goldstock, 1992). Some commentators have, however, questioned whether organized crime is as "organized" as publicized. At a lesser (in scale) level, other forms of reducing evidential burdens for prosecutors are emerging. Ininstances as diverse as proof of child molestation (Raeder, 1993) and probable cause for stops and subsequent search and seizure {Chaires, -1994) the burden of proof is lessening. Thus, in child molestation prosecutions (a state crime} it is not uncommon for a defendant to be denied the right to direct confrontation and cross examination at trial (Raeder, 1993} The rise of "totality of circumstances" grounds in stop, search, and seizure law has in many ways negated the. ability of criminal. defendants to successfully object to the introduction of evidence on probable caus e grounds (Chaires, 1994) 33

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It is problematic whether the current "criminal crisis" requires or justifies such trends. Many argue that it does not (see, for example, Marks, 1993; Wallace, 1993; King, 1992). The current willingness of a majority of the U.S. Supreme Court to exclude some law enforcement search and seizure practices from Fourth Amendment "reasonable grounds" review and to overruleState Supreme Court objections to such actions, indicates that criminal defendants face greater procedural burdens at all phases of criminal prosecution. 18 Again, it is the right and obligation of the U.S. Supreme Court to review state court criminal procedure decisions. Yet, as discussed below and in more detail in Chapters IV and V, an issue of philosophic consistency must arise. This can be explained in the form ofthree questions. If the Supreme Court desires to reverse "activist" trends of previous Courts who reversed State decisions on criminal procedure, should it then not now give deference to state court decisions? If the -supreme Court desires to take a legal positivist approach to constitutional law, should it then ignore legal "realist" positions of considering the "practical" problems of a war on crime? Finally, are state deference and legal realism incompatible approaches? A fourth question is implicit; if 34

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meaningful access to the courts is denied, how will the above three questions be answered? Arguably, the last is a question habeas corpus was intended to Limiting Habeas Corpus When the constitution was originally written,. Article I, section stated, inter alia, "The privilege of habeas corpus shall not be suspended, unless in cases of rebellion or invasion of public safety shall. require it." At the time, the practice of direct criminal appeal was not.well developed. 19 While the concept of habeas corpus review dated back to the Magna Carta, the idea of an appeals system to review procedural error in a trial as opposed to substantive errors in criminal confinement did not really exist. The writ of habeas <:::orpus, literally "to produce the body" before the court, historically involved circumstances where a person was being held in a manner contrary to the law. Thus, it was intended to defeat practices of the Crown like arrests without charges or punishment without trial. 20 The Evolution. American criminal procedure ha s from the very beginning been concerned with abuses of governmental authority. For example, in 1648 the Massachusetts Bay Colony legislature enacted the Body of Liberties which gave 35

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some limited recognition to individual due process rights (Johnson, 1988:103-104) .21 Many of these ideas originated with the "Leveller" movement in England. In part, that movement was an outgroup religious-effort to curtail the use of criminal law for purposes of religious oppression (Johnson, 1988: 85-86) Later, many of these same due process premises would be founded on emerging antireligious Enlightenment premises. Finally, these due process ideas would be incorporated into the United States Constitution and gradually the courts grew to play an increasingly important-role in interpreting them. As the concept of Judicial Review became more established and the Supreme Court formally established its legal dominance, first in constitutional matters (for example, Marbury v. Madison, 1 Cranch 137 [1803]) and later -_; in review of state-civil matters (for example, Martin v. Hunter's Lessee, 6 Wheaton 264 [1816]), the recognition of the power of Article III courts to review. state criminal matters grew.22 It was, however, the recognition that state criminal appeal procedures often failed to offer realistic review of pre-trial and trial conduct that brought federal habeas corpus into prominence. As early as 1830, the Supreme Court clearly acknowledged the power of the federal courts to issue writs of 36

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habeas. corpus in order to review state convictions (Ex parte Watkins, 28 U.S. 193). In the Habeas Corpus Act of 1867 Congress gave impetus to the concept of federal review of state criminal proceedings. Just over a half century ago the Supreme Court recognized that even a confined, convicted state prisoner had a constitutional right to federal habeas corpus review (Ex Parte Hull (312 US 546 [1941]). A few years later in Coffin v. Reichard (143 F.2d 443 [1944]) the 6th Circuit recognized that habeas corpus could be used by a prisoner to test not only the legality of confinement but also the conditions of it (Palmer, -1992: 210) Tn most ways this right of review was meaningless for the vast majority of indigent (of which most are) and/or illiterate (of which many are) inmates until theadvent of Johnson v. Avery (393 US 483 [1969]) and Bounds v. Smith (430 US 817 [1977]). These cases, and many others, gave some guidance on how inmates might exercise this right (see, for example, Musher, 1993; Palmer, 1992: Bounds, in particular, addressed the issue of how an inmate-could gain "meaningful access" to the courts to address Section 1983 civil rights claims. 23 37

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The Fall of Habeas Corpus By the mid 1970's habeas corpus as a means to test the legitimacy and conditions of state confinement had reached its height. By 1979 and Bell v. Wolfish (441. U.S. 520), judical intervention in prisons in general began to come under more restraint. The Court severely limited the use of habeas corpus to test the constitutionality of conditions of confinement. By 1991 and McClesky v. Zant (111 S. Ct. 1454), the writ of habeas corpus had been severely limited as a practical means to seek review of state convictions (Chaires, 1992). Conclusion American law and procedure is complex and prone to ideological and political interpretive conflict. In short, law and its etiology and practice is much like any other complex institution or process. More on this last point will be presented in Chapter VI. It remains, however, to define an approach to complex problems to understanding how law behaves and why legal reform may move in unintended or unanticipated directions. That approach and its limitations are presented in Chapter II. 38

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CHAPTER 1 END NOTES 1. Changes in procedure may require statutory approval. In this text .statutory reform is distinguished and defined as that which may create or extinguish a particular enforceable right or interest which may be litigated in the courts. 2. In administrative law a plaintiff may have to prove by "clear and convincing evidence" that an agency abused its discretion in order to overturn on judicial review 3. In more detail: Actual damages are out of pocket kinds of expenses. These would include, for example, medical bills, lost wages, direct expenses, and the cost of repairs or replacement. Generally these are the easiest .to prove: you just produce the bill. The major issue in such damages usually revolves around what is reasonable, i.e., $10, 000 to fix a 10 year old car. General damages reflect more intangible kinds of injuries .or losses, such as pain and suffering or the loss of consortium with a loved one. These are harder to prove because they can be highly subjective. Punitive damages are intended to punish the defendant for outrageous conduct and/or discourage others from engaging in similar These damages are the hardest to prove, often requiring, particularly in cases against government defendants, proof beyond a reasonavle doubt. 4. This is not to say that civil tort actions do not often vindicate or establish important .interests. They dd, and often in class actions of enormous proportions. But arguably, attorneys successfully involved in such private actions receive "adequate" compensation. Indeed, as will be addressed in -chapter. II, the success .of such attorneys in private tortactibns is a one of themajor reasons for civil law reform. 5 .. There are some isolated historical examples of early jury use in Western Civilization. For example, the Athenians used large public juries called dicasts of-501 to 1501 male citizens in criminal trials and 201 in civil trials in the fourth century B.C .. These early Athenian juries decided cases based on their idea of "general 39

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justice" rather than the "letter of the law" (Guinther, 1988:2) .. Thus, the idea and practice of "jury nullification" (conscience of the jury) far predates the 17th Century "Enlightenment" concepts with which traditionally associated. Nonetheless, the practice of using juries in criminal or civil matters virtually disappeared. In the Anglo-American legal tradition criminal juries began to reappear in the late 12th Century England in a form more similar to a contemporary charging "grand jury" than to a trial (petit) jury. In point, early Anglo-American jurors were selected primarily becausethey knew the most about the parties andwhat had happened (Abadinsky, 1991:235). Yet, .early English criminal juries were essentially powerless and subject to being overruled, or, even imprisoned, by a judge for bringing in the "wrong" verdict. Civil jury trials never really caught on in England. 6. It was not until 1670 and the decision in Bushel's Case that the English Courts ruled that a jury could not be punished for defying-the court's directions in bringing a verdictconsistent with its conscience 7. In 1734 John Peter Zenger, a printer and political commentator, was arrested and prosecuted for seditious liable against the. royal governor of Ne. w York and. held on a bail of 400 Pounds, an incredible amount in those days. Lawyers for Zenger who argued against the enormous bail were disbarred by Governor Crosby, a Crown appointee. Crosby also arranged for the trial judge to exclude any evidence which could prove Zenger's publications were truthful political comments. However, Zenger's supporters were able to get Andrew .Hamilton, a famous Philadelphia lawyer, to take on the case. (Hence, the saying. "get a Philadelphia lawyer.") Hamilton argued to the jury that one might violate the letter of the law in carrying out the spirit of the law, in this case the freedom of the press and the power of the jury to "nullify" bad law. The jury acquitted Zenger despite the overwhelming technical evidence against him and the directions of the court to convict. From that date forward there were no successful British prosecutions for seditious liable, and the idea of the right to a free press was established in America (Guinther, 1988:28-31; see also, Scheflin, 1989). 40 -

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8. It should be noted that there is by no means consensus about what the Founding Fathers intended by the Seventh Amendment. Klein (1992) strongly and compellingly argues thatthe "original intent" wasfor a very limited right to jury trials in civil matters. 9. It is not just in America that there is a movement to remove the jury as a final decider of fact Findley and Dunn (1988) relate that in England the criminal jury system (the British system does not use juries in civil trials) is under attack for many of the same reasons that are articulated by critics here. For example, the jury system is cited as being ineffective and inefficient. More significantly, however, vested interests are distrustful of the jury's nullification power. -' 10. In practice, modern litigation seldom is concerned with proving who did the harm or breached the duty (liability) In much the same way that criminal cases are plea bargained, civil cases are settled, and for similar reasons. In most civil cases causation (A ran over B causing injury) is clear. Disputes typically arise over two issues: whether the act claimed by the plaintiff was actually a legal wrong, and what the damages should be. In many cases, both parties are willing to stipulate to the fact that A ran over B and submit only the issue of damages to the judge or.more usually the jury. Indeed, in theory, the discovery process in civil litigation isintended to. expose and clarify facts. However, the discovery process often becomes a game of hide-and-seek as one side attempts to hide a critical .piece of information and the other side attempts to find.it In the usual litigation process, if the plaintiffs find the hidden information, the defense surrenders and then bargains the damages. At all times, lingering in the background is the specter of a jury choosing to "nullify" the law or to be enraged by the -conduct of one of the parties and modifying an award up or down to match their anger. 11. -This aspect of the American adversarial legal system has. tended to level outthe playing fieldby making each side a "loser" as far as the costs of .retaining counsel are 41

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concerned. Arguably, the American Rule has advantaged those with the most resources, often allowing the wealthiest side to exhaust the resources of the other, thereby avoiding the merits of the case. However, this resource game also has had a constructive side. That is, the costs of a suit, most particularly attorney fees, are a very real consideration in litigation. If attorney fees would be more than the recovery after full litigation, then compromise and settlement chances are enhanced (Kritzer, 1992; see also, Ross, 1980). 12. In the United States publicly funded legal services. exist, but, the kinds of cases and cliental they handle are extremely limited. Generally, only the poorest individuals qualify for such services and their claims revolve around the problems of the poor, landlord/tenant, unfair collection practices, and denial of access to programs for the poor. Legal programs for the middle class, usually obtained through purchasing legal insurance of doubtful value, or more rarely, as an employee benefit, are also very limited in.the kinds of services they will provide. Few, if any, of these programs are willing.to indemnify a client in the case of fee shifting. 13. This writer serves on the Board of Directors of the ACLU of. Northern Nevada and chairs the litigation committee. Ver.y seldom is there any consensus as to what is a good or meritorious case. Further, .economic and political constraints force the rejection of many "good" cases. 14. It is one thing for an attorney to undertake a case on a contingency basis and lose, for arguably the client will be no worse off. It is another thing to undertake a case, lose, and leave a client devastated by attorney fees due and owing to the other side. Such results could lead to even more litigation as clients are forced to sue their attorneys, claiming that bad advice or legal malpractice placed them in the predicament. 15. Some questions are implicit, however. One is, in smaller cases (less than $10, 0 .00) would courts be willing to award attorney fees in excess of the contested sum? 42

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Further, few cases are sure winners; if they were, they would-settle early and attorney fees would not be a major issue.Thus -there would still be the question of who pays the attorney fees if the case is lost. 16. It is interesting to note that Wallace (1994) relates that RICO, legislated into existence in 1970 as part of the Organized Crime Control Act of 1970, was largely ignored by federal lawenforcement officials until 1979. During that time Professor G. Robert Blakey (then of Cornell law School) engaged in a crusade like effort to convince federal law enforcement officials, particularly prosecutors, of the Act's utility. The rest is history. 17. The expansion of RICO into the purely civil sphere has .created what many call a federal "fraud" tort and enormously complicated law. This has in turn led an increased used of sanctions in this area. 18. For example, in Florida v. Bostick (111 S. Ct. 2382 [1991]) the Court overuled the Florida Supreme Court's finding that the practice of drug enforcement agents asking, without any articuable. suspicion, bus passengers for consent to search baggage violated the Fourth Amendment. In this instance, the Court ruled (not without strong dissent) that since Bostick "consented" to t he search, Fourth Amendment protections were not triggered. See also, Minnesota v. Dickerson (113 S. Ct 2130 [1993]) where the Court overuled the Minnesota Supreme Court and adopted the "plain touch" rule. 19. Direct criminal review is the process of appeal. Postconviction relief is, in part, a means of bringing up new grounds for appeal. More about this will be discussed in Chapter V. 20. Habeas corpus today is generally considered to be a form of post-conviction relief. Habeas corpus has been used in other pursuits, for example, to retrieve a child from a welfare agency. See, Alpert and Brodek, "Habeas Corpus--A Better Remedy in Visitation Denial Cases," 41 Maine Law Review 239 (1989) 43

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21. This legislation was first enacted in 1641 and revised in 1648. It was biblically based and codified capital punishment for numerous felonies including, idolatry, blasphemy, witchcraft, sodomy, adultery and bearing false witness. In that sense, it lacked an "Enlightenment" theme. 22. While is often considered the first landmark case of judicial review, it is not. Wolfe (1986) notes that the Court made several important rulings prior to 1803. For example, in Calder v. Bull, 3 Dallas 387 [1798]) The court held that the ex post facto clause applied only to criminal matters. 23. Again, the Supreme Court did not make its decisions in a vacuum. A host of lower court decisions existed. See for example, Smith v. Bennett, 3 .65 U.S. 708 (1961) which held that state filing fees for indigent prisoners violates due process; Novak v. Beto, 453 F.2d 661 9 (StP. Cir. 1971) providing an adequate alternative to jailhouse lawyers would an institution to prohibit "jailhouse lawyers;" Procunier v. Martinez, 416 U.S. 396 (1974) which held, inter alia, that the institution cannot arbitrarily deny. visitation from representatives of lawyers. 44

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CHAPTER 2 DEFINING "BEHAVIORAL IMPLICATIONS" In many if not most instances, attempts to explain law are by nature theory. A particular judicial decision may be a "fact," but its premises and ultimately its interpretation are often theory. In that sense, law is subject to the same paradigmatic shifts and l.imitations as science and social science. More specifically, legal reform may have as its premise a paradigmatically based concept that is inconsistent or in actual conflict with the stated purpose of a particular reform. to wide discrepancies practice (behavior) This inconsistency may contribute between legal intent and legal is easier in Actual legal practice analyze than legal intent. Simply put, many ways to to understand intent requires an analysis of what was the stated intent and what may be termed the "subjective motive. In contrast, analyzing practice is more one dimensional; it involves the study of actual occurrences. In this vein, law can be said to "behave" in a fairly predictable manner. Problems occur when attempts a.re made to explain "why" law behaves in a certain manner. Quite obviously, there are wide variances in explanations as to why law behaves in a particular manner. 45

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Herein is the quandary of a text such as this. To understand legal reform it is critically important to examine the intent behind such reform. That examination is the province of legal actors and legal scholars who must decide how to interpret a particular legal reform initiative. The why and what of behavior tends more to be the province of social scientists and the tools of social science. An undertaking such as this text in attempting to walk both approaches incurs the constant danger of "mixing its metaphors" so to speak. This point of mixing metaphors is not unimportant. For example, Mensch (1990:13) in describing the history of mainstream legal thought observes that "the Obvious Logic of one period becomes superseded by the equally obvious, though contradictory, logic of subsequent orthodoxy." At : one level, her statement is a classic summation of the Kuhnian (1970) paradigm shift; thus, it is cloaked in the conceptual language of science and social science. It is clear, however, that the intent of her writing is a historical analysis of changes in judicial philosophy and nowhere within is. there reference to social science theory or terminology. Except, that is, for her utilization of the concept of "legal consciousness." Ergo; at another level, her writing could be considered a sociological 46

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treatise based on symbolic interactionalist perspectives of definitional consensus. At still another level, the examples given within her writing depend heavily on conflict/power models of class and property. Again, the point is that any writing is subject to the disciplinary interpretation of the reader. Quite often, different disciplines evolve quite similar concepts, but, the concepts are seen to be dissimilar because of separately evolved terminology. In short, often people are saying the same thing, but the disciplinary language barrier impedes .communication and understanding. Hopef_ully, the analysis of limitations and conflict in the social sciences which follows will give some context to the premises of this .text regarding the behavioral implications of legal reform Further, it is hoped that understanding the paradigmatic nature of social science analysis will have some carry-over into the problems of presenting and analyzing the intent behind legal reforms. A Context for Paradigms Kuhn (1962;1970) in his classic and controversial Structure of Scientific Revolutions presents the idea that the basic premises of knowledge (paradigms) change through 47

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a process of conflict and accommodation. More precisely, a conceptual explanation develops which is the generally accepted "knowledge." However, anomalies that are inconsistent with accepted knowledge appear, new. explanations that are at first resisted and then gain dominance develop as the purveyors of the old "idea" die away. Ritzer (1975:3) has diagrammed the process as: PARADIGM I } NORMAL SCIENCE } ANOMALIES } CRISIS } REVOLUTION } PARADIGM II One important. aspect of Kuhn's work is his perspective that there is seldom a shift from one paradigm to another without resistance. There is seldom a major new idea where everyone suddenly says "yes, that's it" and abandons the old. Rather, accepted knowledge changes gradually and often opposing paradigms coexist. Within this perception of Kuhn and explanation of Ritzer, a methodology for approaching legal reform begins to emerge. Ergo, concepts of, and approaches to, law, such as legal positivism, legal realism, law and economics, and criticallegal studies, are paradigmatic perspectives. Legal reform then is the process of paradigmatic shift. To better explain this, it 48

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is necessary to delve more deeply into the concept of paradigms. The Meaning of "Paradigm" The exact meaning of "paradigm" eludes precise definition. Masterman (1970) recognized that there existed some 22 different usages of the term in Kuhn's (1962) work. In response, Masterman developed a typology of paradigms: 1. The metaphysical paradigm or "world view;" 2. The sociological paradigm or "system behavior; and 3 The construct paradigm or "product base." Kuhn himself inhis expanded (1970: 174-210) edition recognizes the somewhat nebulous framework .and inconsistent use of the term paradigm. Nevertheless, the term and concept is useful in approaching social science and philosophic perspectives on the law. As Chaires and Stitt (1994:6-7) relate: A concept may be quite valuable even though it defies consistent definition. We do not have to agree upon either the existence of the power of a God to agree that the concept of God has both theoretical and operational dimensions. In the same way that there may be minor gods and major Gods, paradigmatic thought has several contextual levels. These levels may involve normal science assumptions or they may not. 49

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Nevertheless, for the purpose of this it is necessary to define a meaning for "paradigm" which will be used consistently herein. Thus, the metaphysical definition put forth by Chaires and Stitt (1994:7) will be used; that is, "a model which a science/discipline or members thereof, believe represents reality, as it is conceived by that science/ discipline. As will be seen later, this particular definition has an especially cogent meaning in the context of the paradigms of law and legal reform. But, before the paradigms of law are reached a few more conceptual bridges must be built. The Paradigms of Social Science Ritzner (1975) develops a useful approach for examining the paradigmatic roots of sociology and, by implication, all social science including the study of. law. He relates that all sociological theory falls into one of three paradigmatic perspectives: Social Fact: This paradigm involves theory which assumes the existence of an independent social fact. For example, conflict/power theory and structural-functional theory assume a collective force which has existence. independently of people, i.e .. the whole is greater than the 50

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Social Definition: This paradigm involves theory which assumes that there is no "independent social fact," that individuals collectively define "reality." Examples would include action theory, symbolic interactionalism and phenomenological sociology. Ergo, there is no "whole, only individuals that "create" an abstract whole. Social Behavior: As a paradigm the social behavior approach rejects both social fact and social definition as too abstract, too metaphysical. A behavioral approach in general rejects the assumption that one can understand "why" something occurs. Thus, behavioral approaches emphasize prediction and control rather than explanation. Behavioral sociology and exchange theory are examples of such an approach. Black's (1976) Behavior of Law is another. As will be more fully explained later, it is a behavior of law perspective that will dominate this text. The Paradigms of Law Law is both social science and philosophy. Arguably, since social science is paradigmatically based, that is, resting upon essentially unprovable core assumptions, social science is.philosophy. Stated another way, the very concept of science, and particularly social science, is a paradigm: Social science is an approach to understanding 51

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the human condition, characterized first by its methodology and then by its theories. The methodology is often in conflict with other approaches to understanding. Other approaches to understanding range from those that have been discredited, such as astrology, to. that which cannot be proved or disproved, such as divine intervention. Law is, then, first a paradigm characterized by its methodology. All would agree that law exists, that it has a source and that it is enforceable, i.e.; that it has certain behavioral characteristics. But, there islittle agreement as to what law is, where it comes from and what it should do. Most specifically; there is a lack of a dominant consensus on the. last. In a broad sense the paradigms of law can be described utilizing the paradigms of social science, social fact, social definition and social behavior.: Models and Paradigms of Law Blumenthal {1981) describes three major models-of law which can be categorized as paradigms.1 These models are: God Model: Law is absolute and unvarying and must be strictly and consistently applied. Philosopher King {Equity) Model: Law is not absolute. It is relative and best dispensed by learned, compassionate 52

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persons who consider the fairness of result in each individual circumstance. Due Process Model : rejects the existence Law is not absolute but also of individuals with the sophistication to produce consistently fair results. As such,.the emphasis is not on the fairness of the result but on the fairness of the process. It is readily apparent that at different t.:Lmes in history, the American legal system has stressed the premises of one ofthese models over the others. Thus, Mensch's four stage history of legal thought discussed in the introduction. to this chapter (Preclassical Consciousness, 1776-1885; Classical Legal Consciousness, 1885-1935; The Realist Challenge, 1920-1939; and Modern Reconstruction) can be seen as a movement from legal absolutes, to legal equity, to due process. Indeed, today there is international conflict regarding legal models. Arguably, at a less macro level, much of the conflict in legal reform revolves around these models. It must be added that there is usually no clear point where one can say that a particular legal practice is .part of a particular model. Thus, legal reforms, such as arbitration or mediation, can be seen as attempts to institute an equitable resolution .to a problem or as 53

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attempts to make due process more efficient. What is important to look at is the behavior of a reform and the model-direction that reform moves the law. It is here that a behavior of law perspective becomes valuable. The Limits of Legal Theory Quite simply, legal reforms are usually premised on three distinct but interrelated considerations: The first concerns perspectives as to.what the purpose of the law is. This concern is, by its nature, paradigmatic, or as perhaps a better term in this context would be ideological, in that the perspective is. ultimately unprovable. The second concerns the perspective that there is in fact a problem. This involves drawing a conclusion about the first concern and then a conclusion about how ,the legal systemis somehow impaired in its ability to carry out that concern. The third concerns the ability to fashion a "fix" that the second_concern. is, the "techniques" of reform are often premised on theories of administration and law which may themselves be ultimately unprovable. These three concerns can be summarized in the form of two questions. If we don't know what it is supposed to do, how 54

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can we fix it? And, if you're not. sure what the important parts are, how can you pick the right tool to repair it? Implicit in these questions is the quandary of complex theory---trying to find a usable methodology to cope with complex problems. For example, figure 2 .1 displays the complexity of theory modeling. Figure 2.1 Matching Paradigms and Models A: B: C: SOCIAL SOCIAL SOCIAL FACT DEFINITI BEHAVIO ON R 1. A&.1 B&.1 C&:1 ABSOLUTE 2. A&.2 B&:2 C&.2 EQUI-TY 3. A&.3 B&.3 C&.3 DUE PROC. Figure 2.1 can be used to consider the complexity of a "simple" problem. For example, consider docket overcrowding. In a legal absolute model, docket overcrowding 55

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would not usually be a problem. You hear the facts and rule within clear mandatory standards. In theory at least, even the number of disputes would be at a minimum since expected behavior is well defined. If the desired model is Equity, however, in order to give individualized results, time must be taken to consider all the facts and what is fair. To limit overcrowding, -by say, raising the cost of filing fees to the point that many would not use the courts, would be inconsistent with the model. To attempt to "streamline" the court process by. limiting time for hearings or excluding certain arguments may work but may have the substantial effect of moving the model toward a due process concept were the process becomes more important than .the result. Further, .systemic reforms ,often are premised on a social fact perspective that the legal system has an existence independent of the actors in it. This may or may not be so, but experience indicates that such reforms often produce more litigation, hence, more overcrowding. Chapters III and IV present examples of this. What is important to appreciate here is Ritzer's (1975) point about paradigmatic conflict:. belief in one paradigm (assumption) negates the assumptions. of other paradigms. 56

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Why a Behavioral Perspective In practice, it is doubtful that many legal reforms go through such convoluted analysis before enactment. Figure 2 .1 displays a simple (if such a word can be used) 3 x 3 factorial approach. The reality of any problem isoften much more complex. The nature of paradigmatic and legal conflict is that people truly "believe" that their premises are right, hence, they often do not question them or look for unintended consequences. In one sense, it. can be argued that the discipline of public administration grew up around.the .understanding that "things do not work the way they should. This observation about people also points out the weakness of legal behavior approaches. The law does not "behave;" only people behave. As Lilly and Jeffrey (1979:99) relate, ... no legal rule is self-,starting" (see also, Lilly, 1987). As such, legal behavior is a reification of an abstraction like government or organization. This does not, however, reduce the utility of a behavior of law perspective on legal reform. As Chaires and Stitt (1994:9) relate, "Arguably, social fact paradigms are themselves reifications of abstractions (i.e., Do cultures clash? Does.power corrupt?)." The questions and answers surrounding why a particular 57

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lBgal reform occurs are complex and problematic. One can argue a conflict/power approach to a reform such as FRCP 1.1.: that an economic elite is attempting to close the courts as a vehicle for the average person to obtain redress for economic harms caused through tortious conduct. One could also quite legitimately argue that reforms in habeas corpus express a redefinition of society's values concerning "criminal rights." It could also be that no one really thought things out, that the intentions were one thing and the result something else entirely. It is in examining the last that a behavior of law approach is admirably suited. Explaining the Behavior of Law The central thesis of Black's now classic Bebavior of Law (1.976) is that law increases .in quantity as other forms of social control decrease in Black defines law as "governmental social control" (1.976 :2). In line with this Black makes several observations regarding how law "behaves" as it increases in quantity. Particularly germane to this text are Black's observations as to the behavior of law in the dimensions of stratification (1.976:1.1.-36) and .culture (1.976:61.-83) .2 58

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Downward Law is Greater Than Upward Law Simply put, people (real or artificial) at the top of the vertical aspect of law which Black calls stratification are more likely to use the punitive or penal aspects of the law against people at the lower end of the stratification dimension. Perhaps more importantly, people at the lower end are less able to use the law against those at the top. Another aspect of the stratification dimension is that the style of law (social control)--penal, compensatory, therapeutic, or conciliatory--is related to a person's location on the.vertical dimension. For example, in the .civil aspect of law it is much more likely that individuals at the bottom end of society will be subject to unconscionable contracts, high interest rates and marginally legal collection practices. As one moves up in the vertical it becomes more likely that contracts will be fair(er), interest rates more reasonable and that som.e.. meaningful remedy for abusive collection practices will be available. Indeed, it is more likely that things will be "worked out." In a criminal vein, the higher a person is on the vertical scale the less likely it is that law enforcement interests will intrude into his orher life, and when they do, it is also. less likely that harsher penal sanctions 59

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like prison will be imposed. In this direction, it must also be considered that the lower a person is in the vertical dimension the less likely it is that they will be able to mount an effective defense. Law Varies Directly With Culture Black (1976: 61) defines culture as "the symbolic aspect of social life, including expressions of what is true, good and beautiful." This is, of course, a very broad definition including, inter alia, the choice of which scientific paradigm is correct (truth), what is right and wrong (morality) and the more conventional idea of aesthetics. Black's observation isthat law increases as culture increases and that themore "culture" a person has the less subject they will be to the penal aspects of law. Further, theless culture a person has the less able they will be to meaningfully use the law. Cultural Distance. Cultural distance involves among other things the definition of deviance and remedy. Thus, there may be broad differences in religion, education, morality and aesthetics. Cultural distance "predicts and explains the quantity of law" (Black, 1976: 74) For example, members of a close religious group are less likely to pursue litigation against each other while groups seen 60

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as culturally marginal, i.e., ethnic and racial minority groups, may find themselves on the receiving end of both civil and criminal sanctions for similar conduct against the same people.3 The Implications of the Behavior of Law It should be noted that the dynamics of the behavior of law can be explained in the context of other theoretical approaches. Thus, landlord-tenant. relations or arrest can be explained using conflict/power or symbolic interactionalist perspectives. Black explains the premise of a behavior of law approach as: Theory of this kind predicts and explains social life without regard to the individual as. such. It neither assumes nor implies that he is, for instance, rational goal directed, .. pleasure seeking, or pain avoiding. It has no concept of human nature. It has nothing to do with how an individual experiences reality. It has nothing to say about the responsibility of an individual for his own conduct or about its causes (1976:7). 4 Legal reform is a particularly appropriate setting for a behavior of law approach and analysis. Quite simply, as noted above, the possible intermixes of theory are so complex that clear explanations as to causality or interpretation become extremely difficult and problematic. 61

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Further, any text of this type which combines several levels of abstractions, such as individual intent, organizational behavior, and philosophy of law, is ripe for becoming convoluted and meaningless.5 Legal Reform as Legal Behavior The focus herein, then, is to examine legal reforms, specifically Federal Rule of Civil Procedure 11 and habeas corpus access, within the context of Black's stratification and culture. To do so, it is necessary to look at the intent .behind such reform and how such reform ultimately "behaves." It is posited here that the behavior of such reform was predictable .. For example, it is argued within that Rule 11 has become a device that disproportionately affects those at the lower end of. the vertical dimension .of law and those who are seen as being on the cultural fringes. In another approach, while there is conflict in the bar among attorneys who primarily represent plaintiffsand attorneys who primarily represent defendants, both groups because they are somewhat similar in their stratification and cultural positions have succe.ssfully used sanctions practice. Where, .however, there is a real or perceived disparity in the cultural level of the atto.rney or the 62

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issues being litigated are particular to those existing at the lower ends of the stratification and cultural dimensions, disparate treatment in the use and abuse of penal kinds of attorney .sanctions occur. For example, Axelrod, Price and Thornton (1993) relate that increasingly. criminal defense lawyers are being charged and prosecuted under a variety of legal theories, such as aiding and abetting, conspiracy and obstruction of justice. Alternative Perspectives Again, this disparate result can be explained utilizing a number of theoretical or analytical approaches. Cogan (1989.) for example sees the problem of sanctions as one involving conflict between the court's obligation to control its docket and the conduct of attorneys and the court's obligation to provide a forum for the resolution of disputes. Tobias (1989) and LaFrance (1988) see the problem of sanctions as a conceptual one, that many civil rights and public interest cases are not easily framed and litigated in the form of traditional law and litigation practices. Kuntz.ler (1991) .and Taylor (1991) take a more direct !Elpproach,. holding that Rule 11 is deliberately manipulated by conservative interests for purposes of oppression. The behavior of law approach offers a more 63

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consistent method to analyze cause and effect. The same kinds of considerations are involved where the criminal process is at issue. Wallace (1993) for example notes that the drive to federalize many crimes has been rooted in the manipulation of racial conflict. Raeder (1993) relates that federal sentencing reform, intended to produce a "neutral11 atmosphere for sentencing, has had harsh, disparate impacts on women. In addition, Shein (1993) describes similar, if even more adverse, racial disparity in sentencing reform where Blacks and drugs are concerned. Under 21 U.S.C. section 841 (b), for example, the minimum sentence for possession of 500 grams of powder cocaine (implied intent to distribute) is five years imprisonment. Possession of five grams of 11Crack" cocaine, the 11poor man's drug," carries the same mandatory penalty. This is a 100 to 1 (Shein, 1993: 29) As Shein (1993: 30-31) further describes, attempts to argue that such a result violates due process (U.S. v. Galloway, 951 F.2d 6-4 [5th Cir. 1992]), equal protection (U.S. v. Thomas, 900 F.2d 37 [4th Cir. 1990]) and Eighth Amendment proportionality (U.S. v. Pickett, 941 F.2d 411 [6th Cir. 1991]) have failed. 64

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Coming Together: Paradigm Shifts, Legal Reform and the Behavior of Law Implicit in the analysis given by the .above commentators (and within judicial decisions) is either a social definition or social fact analysis of a problem. In other words, clearly there is a disparate result. The question for the commentators is "why?" The usual answer is a simplistic "bad law" or "bad enforcement." What is being described, however, is "legal behavior." Quite simply, commentators on the law usually do not use social science terms, particularly esoteric terminology such as paradigm shifts, in describing legal perceptions and conflict. Nevertheless, it can legitimately be held that what is occurring as a result of at least some legal reforms is a paradigm shift. An example of this shift can be seen by examining Shein's observations. He notes that "equal protection" demands that "all persons similarly circumstanced shall be treated alike" (1993:31, citing Pyler v. Doe, 457 U.S. 202,216 [1982]) Equal protection is a "fundamental right n where a suspect classification like race and gender is involved. The usual test for state interference with a fundamental right is a showing that there exists a "compelling necessity" and that the course taken is the 65

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"least restrictive alternative." As Shein relates, however, the judicial analysis in the above cases speak in terms of a disparate result being "rationally related to a legitimate state interest." In short, societal interest in the drug war has become so "compelling" that it is assumed that extraordinary measures are needed and that these extraordinary measures will have (unfortunate?) impacts on protected classes. The result is that the. test of those measures is only one of a "rational basis," a test usually reserved for intruding on privileges, not rights. There need be no showing that the particular action is the least restrictive alternative. Gradually, such a view enlarges to include other areas of civil rights (for similar concerns and conclusions see Askin, 1993; Marks, 1993; Schnapper, 1992; 1989; Olsen, 1992; Deford, 1992 ; King, 1:992; Chemerinsky, 1990; Schwartz, 1990; Rudovsky, 1989). By its very nature this standard and burden of proof is one of nearly unquestioning deference to governmental actions where drugs are concerned. It is a "paradigmatic" shift from a previous standard that intrusions into "fundamental rights," i.e., equal protection of the law, required both an-individualized "compelling state purpose" and the provision of the "least restrictive alternative." In short, gradually, an entire new dominant "constitutional 66

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jurisprudence11 evolves, one where the role of the courts in a heterogeneous democracy is redefined--reconstructed. It is irrelevant whether this change was intended or incidental. The behavioral effect is the same A Framework for Change in Judicial Decision-Making To further explain this concept of paradigmatic shift in the law it may be helpful to examine how some commentators have described historical changes in judicial decision making. Tarr, (1994), Mensch, (1990), Freeman, (1990), Feinman and Gabel; (1990) and Gilmore (1977) are but a few of the scholars who have attempted to present discreet conceptual periods in American law. Mensch and Gilmore present overviews. Freeman (civil rights) Feinman and Gable (contracts) Tarr (torts) present periods of conceptual change in particular areas of law. They all have, however, some commonalities which may give some focus to the concept of paradigmatic shift in the law. GILMORE: Age of Dia;Jcovery Post Revo-lution to Civil War b&lancing codification and precedent Age of Discovery -Post Civil Wa. r to World War I -law iS! a science -attempting uniformity of doctrine. Age of Anxiety -post-WW I to 1970's -law is created -legal realism. 67

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MENSCH: Preclassical Consciousness 1776 to 1885 baiancing utility and 11natural law11 morality -law divided into public and private 11spheres.11 Classical Legal Consciousness -1885 to 1935 -balancing individual autonomy and government power -judges decide which property and contract right prevails. Realist Challenge 1920 to 1939 -deference to legislative adjustment of competing claims to serve the 11public interest11 ModernReconstrll.ction-1940 to present-attempts to shift from the substance of the law to the process -law is policy. FEINMAN and GABLE (.contracts) : Eighteenth Century contract law concerned with the transfer of property, no anticipatory character -equitable nature of contract considered. Nineteenth Century -dissolution of traditional social bonds 11 freedom of contract 11 forces enforcement of unequal agreements and.maintains economic classes. Twentieth Century -Regulated economy forces new concepts of fairness in bargaining-division in Uniform Commerical Code and private contract. TARR (torts) : First Regime -to mid 19th Century peril so avoid risky enterprises Second Regime -mid 19th Century industrialization and problem of .. socially useful11 enterprises -one acts at one's own fault not an.issue. to 1950's -increasing encouraging risky but 11proximate cause11 and privity of "foreseeability, .. contract11 reduce liability Third Regime -1950's to. present -general reduction defenses to liability -rise of "strict liability" -movement for 11tort reform.11 FREEMAN (civil rights) of Era of Uncertainty1954 to 1965 11 separate but equal inherently unequal. Era of Contradiction -1965 to 1974 -issue is "victim v. perpetrator11 institutional concept brings statutory involvement-Affirmative Action. Era of Rationalization 1974 to 198411proof" of discriminatory intent -reverse discrimination claims have standing. Era of Denial-1984is at issue and it is 68

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not society that is at fault for discriminatory impacts -compelling reason for preference must be shown. What emerges in this tempore-linear presentation is first that any attempt to categorize legal evolution, or conceptual change, into distinct periods requires very arbitrary lines. And second that, at least in the perception of the above authors, the conceptual underpinnings of law and the role of the courts changes.6 These conceptual changes are not, of course, abrupt and dramatic. They are in the Kuhnian (1970) sense gradual changes which often take place in the context of an environment like a university department (or an appeals court) where completely conflicting ideas exist. Gilmore (1977:68-69), for example, states: From the vantage point of the 1970s it is clear enough that the great Langdellian jurisprudence crumbled during the period between the two World Wars. It did not, of course, come tumbling down like the walls of Jerico at Joshhua's trumpet-blast. and the truth of the matter may be that the spirit of Langdellianism survived the apparent rout of the Langdellian forces during the bitter jurisdictional battles of the 1920s and 1930s--just as the spirit of Rome may be said to have survived the collapse of empire to reappear in the guise of the Catholic Church. But even if, for sake of argument, we concede the identity of the two Romes, we may go on to observe that the style and trappings of Catholic Rome were 69

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quite different from the style and trappings of Imperial Rome. We can be sure that a revivified and resurgent Langdellianism would bear little outward resemblance to the original. Hence, legal evolution (or revolution) reflects many of the dynamics of paradigmatic shift reflected on by Kuhn. Social Considerations There is, though, another aspect to consider in-the juxtaposition of the evolutionary trends reflected above. In many instances the law, and hence judicial activity; changed in response to changes inthe social or economic order and often that change was very slow. There was for example, a lapse of 58 years between 11separate but equal11 (Plessy v. Ferguson, 163 U.S. 537 [1896]) and 11Separate is inherently unequal11 (Brown v. Board o:f Education, 347 U.S 483 [1954]) as judicial imperative Hall, et al (1991: 254-255) relate that in 1855 the Massachusetts legislature banned segregation in. schools and in 1881 the Kansas Supreme Court held that state law did not allow segregation. There is some perhaps not so subtle irony, that Topeka, Kansas, would be the defendant inBrown 73 years later and Boston, Massachusetts, would be a continuing defendant in school desegregation cases even today. There was, however, only the passing. of some 30 70

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years before the Supreme Court entered Freeman's "Era of Denial" and dramatically (not without precedent) diminished the promise of Brow.n. Tribe (1989) used this concept of paradigmatic shift brought about by judicial decision making. He relates that judges often look at decisions as having only particular "legal" ramifications, that they perceive only one dimension of reality and often fail to consider that they .. may be "changing" a larger reality by their decision (see also, Chaires and Stitt, 1994; Gilsinan, 1991; and in general, .Zukov, 1979). This concept and process can be described as: Legal Philosophy } Behavior of Law } Anomalies } Legal Refor.m } New .Dominant Legal_ Philosophy } .Behavior of Law Herein can be seen the .crux of the issue Legal philosophy, which includes percept;ions of the role of the courts and the role of the law, are actually perceptions of reality in the paradigmatic sense. The behavior of law is a constant which does not respond to perceptions of reality 71

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but only to overt actions and then in a consistent (arguably predictable) manner. When the behavior of law does not match the expectations of the dominant legal philosophy and produces anomalies, there is impetus for legal reform. Gradually that reform changes the dominant legal philosophy; hence, for example, rights are treated like privileges and eventually rights become privileges. The result is a new dominant legal philosophy, a new reality, where the primary purpose of the law is the accommodation of government (not a new idea) Which again because of the behavior of law forces consideration of new anomalies and more reform, again with that new legal philosophy as a base line. Rejecting the Pendulum It is important not to consider this as merely a cyclic or pendulum kind of approach. The new reform is not in the direction of the "old" legal philosophy. Its intent is to refine the new one. Thus, as will be explained in chapters III and IV, the newest legal reforms are often not a recognition of. the failure of the old reforms but attempts to refine the new paradigm. An example of this will be presented in chapter IV where it is noted that the 1993 revisions of the 1983 revisions of Federal Rule of 72

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Civil Procedure 11: Sanctions, change the wording of the rule, but most probably, not the behavior. Again, the old ideas still coexist. Few would argue that preserVation of life, liberty and equality are not the purpose of the law. What is redefined is the meaning of those terms. Most importantly, as the proponents of the old ideas, the old definitions, die away in the Kuhnian sense, the new definitions, the new reality, may bear little resemblance to the old. Whether this is good or bad z is problematic. There is, however, a substantial question of whether the actual behavior follows stated intent. As the following chapters relate, the behavior of reform often does not match the intent of reform. In this aspect alone it can be said: if legal reform changes a forest into an open field while most were busy looking at single trees, then something at least poetically sad has happened. Therein, is the crux of paradigmatic shift in the law. The children of the 40s and 50s, and perhaps the 60s, grew up with an idea of the courts as a vehicle of social change. Even if the access to the courts appeared to many to assume the guise of Kaufka's Gatekeeper, there was still a general symbol of access, of a place where a lone individual or cause could prevail despite all the political manueverings and inertia of the other branches of 73

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government. So much energy and effort is expended to fix the courts. If the result is that the courts become just another branch of goverment, concerned with efficiency, effectivness, and political accountability, then a paradigmatic shift in the law will have occured. The law will become just another tool to be used and discarded at will. In a land that at least in theory prides itself in being run by laws not men, that is a significant change. 74

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CHAPTER 2 END NOTES 1. These categories came from lectures by Professor Blumenthal at the University of Denver College of Law circa 1981. This writer does not know if these lectures ever resulted in a publication. Professor Blumenthal did not use the term "paradigm" in reference to his categories. He used the term "models." 2. Some, including this writer, would hold that Black wrote the same chapter five times. That is Black's point. Whether the dimension is stratification, morphology (the horizontal dimension), culture, organization or social control, the behavior of law is the same. This writer teaches a senior seminar in jurisprudence. Black's text is one of the required readings. When a student finally observes that all the chapters say essentially the same thing, it is considered that they are beginning to understand the "behavior of law." 3. For example, Robert Chaires, Matt Leone and Richard Siegal are currently finalizing a study on disparity in Nevada jailing. When the jail pretrial population rate for Whites, Blacks, Native Americans, Hispanics and Asians is compared to the county population for those groups there is a difference at the .01 level for Blacks, Native Americans and Hispanics, but not for Asians who were underrepresented. It would seem that since Asians, particularly the non-English speaking immigrants, are an unpopular minority in Nevada that all other things being considered (i.e., crime propensity) they should be disproportionately represented in the jail population. The writers hypothesize that culturally, Asians are seen as hardworking family people, strong Nevada values, and thus, left alone. It should be noted that ethnic and racial minorities have been the targets of systematic discrimination by law enforcement officials in Nevada. Often minorities are arrested and jailed for offenses like cracked windshields. There have been several successful civil rights suits surrounding such conduct. 4. Bibliographic sources have been deleted in this quote. 75

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5. Indeed, an earlier version of this text was heavily criticized for its mixing of methodology and overdependance on conflict/ power theory. 6. In point, Mensch, Freeman, and Feinman and Gabel all appear to agree with much of the evolutionary process and critical comment of Gilmore, but do not cite him. Feinman and Gabel do cite Gilmore's Death of Contract (1974), Columbus: Ohio State. 76

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CHAPTER 3 THE MOTIVES OF REFORM This chapter examines the history and evolution of sanctions with an emphasis on Amended Federal Rule of Civil Procedure 11 (FRCP 11) While an overview of many of the issues surrounding control of attorney conduct and access to the courts will be presented, a major focus of this chapter is on presenting the fact that prior to the advent of Amended Rule 11, many means of sanctioning attorneys already had long existed. Central to the theme of this chapter is the examination of possible discrepancies between the intent of FRCP 11 and its actual practice To accomplish this, some interests of the various groups involved in legal reform will be presented. Then the expressed intent behind the Rule, as reflected in official records, will be examined and compared. The actual behavior of Rule 11 and the rule' s eventual 11 re 11 reform will be presented in chapter IV. Some Historical Perspectives Federal and state courts have never been fully open as a forum for the resoiution of every grievance. There is a 77

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long history in American law of allowing individuals aggrieved by frivolous and vexatious law suits to recoup their losses and damages by filing countersuits or original actions for "abusing the process" of civil law suits (Lentz, 1989) Further, the courts have long had the inherent power to personally sanction attorneys for facilitating the pursuit of frivolous and groundless law suits. Along with this power, the court has always had the power to sanction attorneys for engaging in conduct deemed detrimental to the proper operation of the legal system (Joseph, 1988A) ABUSE OF PROCESS AND MALICIOUS PROSECUTION AS EARLY TORTS Lentz (1989:227) relates that "Under certain factual circumstances, the plaintiff may be able to plead and prove claims for both abuse of process and malicious prosecution or use of process. Lentz notes that the two claims, which sound in tort, are distinct, occurring at different points in the legal process. Malicious prosecution or use of process involves the wrongful commencement of a legal action or service of process. Abuse of process involves the wrongful continuance of a suit.1 Conceptual Origins. Abuse of process and malicious 78

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prosecution date back to pre-revolutionary common law. The torts are, however still active and valid claims available most commonly as a state action. Abuse of process and malicious prosecution can, however, be. the basis for a constitutional tort under 42 U.S.C. Section 1983 (see, Brown v. Johnston (675 F. Supp 287 [WD Pa 1987]) The dominant modern policy concept behind abuse of process and malicio"Us prosecution is the "balancing of a litigant's free and uninhibited access to the courts with the interest of protecting individuals against egregious abuses of the judicial system" (Lentz, As such, courts have ruled that these torts should be interpreted and enforced in a manner that does not produce an unwarranted chilling of the right of access to the courts (see, for example, Jacobson v. Garazo, 149 Vt. 205, 542 A2d 265 [1988]). For this reason courts have generally required a showing of "bad faith" and or an "ulterior motive" on the part of the defendant in such an action. Attorney Liability. Of perhaps more relevance for this text is the point that private attorneys may be personally liable under these causes of action. While not. common because of the public policy ipsues stated directly above and because of limited immunity issues, attorneys who assist in the filing of vexatious or groundless law suits 79

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may be personally liable to plaintiffs if the attorney acted in bad faith or in violation of accepted legal conduct (see, for example, Mines v. Kakle, 557 F. Supp. 1030 [WD Pa 1983]). In contrast, because of their absolute immunity, prosecutors can not be personally liable for monetary damages for malicious prosecution. Early Court Power to Sanction Cogan (1989) relates that there disagreement regarding both the source is a continuing and the scope of judicial power to sanction attorneys for perceived misconduct in proceedings before the court. Such sanctions could include anything from an oral reprimand through an order to. pay costs and attorney fees to suspension and disbarment. The "inhe-rent powers" view holds that federal courts, and by implication state courts, by virtue of their status as a separate branch of government have a virtually unrestricted power to control, and hence, sanction, improper conduct before them. The court has additional power to control and sanction attorneys by virtue of their status as "officers of the court." In addition, a court may refer attorneys to the bar for disciplinary conduct. In this inherent powers perspective the court has rather summary power to fashion a range of sanctions for 80

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improper conduct by an attorney before the court. Under a pure inherent powers perspective, the court would have to give little or no presanctioning notice. On the other hand, the "due process" model of controlling attorney conduct not only recognizes the inherent power of the court to control attorney conduct but also acknowledges the problems of litigating in an adversarial system. The due process perspective, therefore, limits the power of the court to control certain kinds of attorney conduct absent explicit statutory authorization. It also places an .obligation on the court to conduct "presanctioning" hearings. Early Statutory Authority to Sanction Section 1927 of Title. 28 of the United States Code states: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct (as amended Sept 12, 1980, Pub.L. 96-349, Section 3, 94 Stat. 1156}. Section 1927 was amended in 1940 to specifically add 81

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personal liability for attorneys. However, the power of judges to personally sanction attorneys had long been recognized, if seldom used. For example, in Motion Picture Patents Co. v. Steiner, et al (201 F. 63 [1912]) it was specifically acknowledged that the courts had such power and could personally sanction attorneys and award attorney fees. The Early Rule 11 FRCP 11, as a procedural device to provide for control of attorney conduct, -was first enacted in 1938. It held that federal judges had the discretionary power to sanction attorneys for engaging in the conduct of filing frivolous or vexatious matters. Thus, Rule 11 was merely a codification in procedural form of an already existing power, not the creation of new one. As Gregory (1988) notes, however, such sanctioning was not common. Kritzer and Zemans (1993 :536) for example, relate that "between 1938 and 1976, Rule 11 sanctions were imposed in only 3 reported cases (out of 19 reported cases in which Rule 11 motions had been filed) .11 To appreciate the true scope of the scarcity of sanctioning it shotild be considered that both Section 1927 and early FRCP 11 allowed a litigant to motion for an award of sanctions. That recorded cases 82

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reflect so few requests indicates something about common perceptions of sanctions in those times. "Bad Faith" as a Sanctioning Requirement A critical (for this text) point to consider is that sanctions, under an inherent power perspective, under the statutory authorization of Section 1927, or, under the procedural guidelines of Rule 11, were discretionary. Further, both existing case law (for that time) and tradition strongly influenced a belief that sanctions should only be applied where there was "bad faith" (Kemper, 1989). As will be seen later, this bad .faith requirement for sanctioning declined with the advent of Amended Rule 11 as did the discretionary aspect of sanctioning. The Due Process Perspective The 5th Amendment to the United States Constitution which applies to federal actions provides, inter alia, that citizens will not be deprived, byfederal actions, of life, liberty, or property without due process of law. There are similar provisions in the 14th Amendment which apply to state actions. As Cogan ( 1989) relates, one of the questions in sanctioning, besides the merits of the sanctions, is what quality of due process should be provided prior to imposition of a sanction that would 83

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deprive an attorney of property. Generally, a pure inherent powers perspective on sanctions requires minimal, if any, prior notice before imposition. In contrast, a due process perspective would require, at the least, notice of an impending action and a factual determination by the judge. A full adversarial hearing would not be required. Notice and opportunity for a hearing on the record is sufficient (Kemper, 1989:534-538). Distinguishing The Courts' Contempt Power It is important to distinguish the court' s general contempt power from its inherent power and statutory and procedural power to sanction.attorneys. The imposition of sanctions for violation of Section 1927 or Rule 11 is materially different from a court's power of contempt. Section 1927 and Rule 11 were early indications of concern with a multiplication of proceedingsand the filing and maintenance of vexatious suits. That arena is a legal matter concerning the quality and quantity of litigation. Contempt of court law involves actions which are an affront to the dignity of the court, such as insulting behavior and/or willful failure to obey an order of the court, Indeed, it can be stated that contempt power is the greatest power of the court since the ability to jail, 84

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fine, and seize is the means by which the court enforces its rulings. 2 Contempt law is not particular to attorneys generally applies in civil and criminal proceedings. and Such law applies to any parties in a matter or parties subject to an order of the court. It should be noted, though, that an attorney may be monetarily sanctioned, held in contempt and jailed, and disciplined by the bar, all for the same action. This result can occur because of the curious intermixture in American. law of custom, statute and procedure. It is clear, however, that long prior to the advent of Amended Rule 11 in 1983 there existed several powerful methods to deter litigants and attorneys from filing and proceeding with frivolous, vexatious, and groundless litigation. The question must occur, why then were even harsher sanctioning powers implemented when the current ones were not being fully utilized? In order to address this question, it will first be helpful to review the court rule-making process. Federal Court Rule-Making In 1922 the Conference of Senior Circuit Judges was .established. The Judicial Conference, chaired by the chief justice of the Supreme Court, serves as the chief 85

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administrative policymaker for the federal judiciary. This group consists of the chief judges of the courts of appeals, the chief judge of the Court of International Trade and a district judge from each circuit except for Washington, D.C. (Abadinsky, 1991:161-162). The conference is charged with many tasks. Through a wide variety of specialized committees, it, inter alia, establishes the federal court budget, sets ethical standards for federal judges and decides on the qualifications of nonjudicial court.personnel, such as court clerks. Members of the bar sit on the committees in an advisory capacity. Perhaps the most important task of.the conference is to review, amend and create new rules of federal procedure and practice. The Judicial Conference's role in the rulemaking process is defined by 28 U.S.C Section 331. The actual drafting of changes in the Federal Rules of Civil Procedure is done by the Advisory Committee on Civil Rules. That committee submits its recommendations to the Committee on Rules of Practice and Procedure for their approval. If that committee approves of the draft it is then submitted to the Conference at large for a vote. Adoption by the Conference results in the changes being submitted to the Supreme Court for approval. From there the proposed changes are submitted to Congress. 86

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Enabling Act of 1934 In 1934 Congress enacted the Rules Enabling Act (codified as 28 U.S.C. Section 2072) which provides that the Supreme Court can propose new rules and amendments to existing rules of "practice and procedure" by transmitting them to Congress. Under the Act, such new rules and amendments must be submitted to Congress after the start of the session but no later than May 1. Unless Congress enacts legislation to the contrary, the new rules and amendments automatically take effect 90 days after submission. While Congress usually approves of the changes by default, it is not uncommon for Congress to hold hearings and involve itself in the federal court rulemaking process. The political manueverings in the Judicial Conferences7s rule-making process are problematic in that they most probably reflect the .kinds of considerations inherent in any committee process. That the rule-making process becomes more overtly political when Congress becomes involv.ed, as Carrington (1991) relates, is clearer. For example, in 1982 several amendments to the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure were submitted to Congress on April 28. These amendments would have taken effect on August 1, 1982. The 87

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proposed changes in habeas corpus proceedings (under 28 U.S.C. Sections 2254 and 2255) produced little comment.3 Changes in Federal Rule of Civil Procedure 4, which has to do with service of process, however, did provoke substantial comment.4 The amendment to Rule 4 would have allowed service by mail. The intent of the rule change was to remove some of the burden on the U.S. Marshall Service to serve process. Many members of the private bar and the U.S. Attorney General objected to this change seeing it as ambiguous and flawed (see, House Report No. 97-662, at 2-4 [1982]). Congress enacted Public law 97-227 postponing the effective date of implementation until October 1, 1983. In the interim a compromise was worked out that allowed mail service in some kinds of private suits but still required personal service in cases involving the government. The amended rule finally was approved in 1983 (source, Congressional Record-House, September 22, 1982, p. 2501925020; December 15, 1982, p. 30929-30937). Limiting Federal Judicial Review There has always been conflict concerning federal court jurisdiction and the subjects of its review. As described in chapters III and IV the Supreme Court gradually expanded the scope of judicial review in both the 88

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civil and criminal arenas (see, Wolfe, 1986). Clearly, as the scope of judicial review increased, the quantity of cases entering the federal court system increased. It was not, however, just judicially derived jurisdictional expansion that increased the burdens of federal courts. Congress continually enacted legislation that required judicial interpretation or increased the jurisdiction of the federal courts. Examples of the latter are part1.cularly prevalent in post-Civil War times. For example, the passage of the 14th Amendment in 1868 and the Civil Rights Act of 1866 operated to expand the importance of the federal courts.5 It is interesting to note that when a Congressional 'bill was introduced that would have drastically limited federal court review burden, the members of the Judicial Conference unanimously voted to resist it. In 1983 a bill to reform the Federal judiciary and promote separation of powers was introduced in Congress (8. 3018). Part A of Title I of the bill would have withdrawn jurisdiction (from all federal courts) to consider allegations of state violations of the first eight amendments to the Constitution. The Judicial Conference members felt the bill was "seriously tainted" (source, Annual report of the Director of the Administrative Office of the United States 89

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Courts, 1983, p.7-8) .6 As discussed herein, often the courts were loath to exercise their power of review, and gradually a variety of methods by which the courts could decline to hear cases grew into prominence. Some, like ripeness and mootness, grew out of the "case and controversy" clause of Article III of the Constitution and the long standing concept that federal courts do not issue "advisory opinions." Others, like standing, were more purely judicial constructs. Ripeness and mootness can be considered the opposing sides of the same coin. A case is not ripe for judicial review until there is an actual controversy. Thus, a court may decline to review a matter because the injury or issue has not yet occurred. In contrast, mootness arises when the subject matter of the dispute is already over. A classic example of this is the abortion cases prior to Roe v. Wade (410 U.S. 113 [1973]). Prior to Roe many individuals desired to test the constitutional legitimacy of state laws prohibiting abortion. However, to bring the issue before the courts, one had to be pregnant. If the plaintiff was not pregnant, then the case was not If one was pregnant, however, then the long periods involved in litigation and appeal would inevitably result in the baby being born before a final appeal and ruling 90

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could be had. Thus, the case would be moot because abortion was no longer an issue in that case. Standing can also be analogized from the facts of the same case. .Quite simply, one must be a directly involved party to appear before the court. Thus, arguably, a man would have no standing to argue the abortion law (see, Hall, Wiecek and Finkleman, 1993:521-526 for discussion on Roe) Roe v. Wade also represents a classic example of evolution and change in the law. Faced with the mootness problem the Supreme Court (Justice Blackmun giving the Court's decision) developed the "issue capable of repetition standard." This standard basically holds that if a case is likely to reoccur then it may be heard and a decision made. The rest of Roe is of course past history, current controversy, and future conflict. Expanding and Contracting Federal Judicial Review It should not be surprising that most of the cases where issues of ripeness, mootness and standing arise are cases concerning civil rights and public interest law. Indeed, much of the conflict surrounding sanctions can be attributed to sometimes conflicting views as to what kinds 91

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of issues should be resolved in federal court and what kinds of cases should be heard in federal courts. In this vein, a substantial part of the increased utilization of federal courts as a vehicle of social adjustment can be viewed not so much as the result of across-the-board judicial creation of new rights but as changes in access to the courts. As Askin (1993:65) explains: What few recognize is that the constitutional revolution created by the Warren Court was founded not so much on the expansion of substantive constitutional rights as on the creation of constitutional remedies. Even Justice William Brennan's landmark opinion in Baker v. Carr, which led to implementing the 11 one person, one.vote11 principle, involved a question of standing--that is, who qualified to bring suits. For years, federal courts had refused to entertain legal challenges to malapportioned legislative bodies on the ground that the courts had no authority to hear these claims. Baker rejected that notion and held that voters had standing to complain Once that procedural issue was settled, the outcome was obvious. No court was going to rule that it was all right to weigh one person's vote more heavily than another's. Thus, the expansion of judicial review was more a revolution in procedure than of substative law. The courts gradually went from a very narrow interpretation of what they would or should hear to a broader one. Of course, 92

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there was and is by no means any consensus as to the propriety and legality of that directional change. In this vein, access to the courts can be conceived of as the operationalization of the idea that the courts are a remedy, more than the means to a remedy, for social wrongs. Such a perception of the courts being a remedy would, arguably, lead to increased utilization of the courts as a vehicle of social reform. Change of that perception, as commented at the end of chapter II, perhaps would have the effect of changing existing societal perceptions of the role of the courts in a heterogeneous democracy. Many would argue, of course, that this increased utilization has "overloaded 11 the courts and that the perception of the courts as a vehicle of social change should be changed. In part, this text argues that the 11overload11 of social change litigation is doubtful at best. There is little doubt, however, that the courts in general and federal courts in particular often face crushing case loads, although, it is questionable whether the often portrayed "court crisis11 exists. The question is what causes those burdens, and what is the appropriate 11cure,11 if indeed there can be a viable cure. The nexi section addresses some of the factors, real and imagined, leading to 11court crisis11 perceptions and then focusses on 93

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how sanctions emerged as a major method to curb particular perceptions of court litigation overload. Frivolous Claims and the Rise of FRCP 11 Noted civil rights attorney William Kuntzler of the Center for Constitutional Rights and Constitutional Law Professor Barrey Nakel of the University of North Carolina are each personally fined $10,000. Their clients, Native Americans who filed a 42 USC Section 1983 civil rights action against a North Carolina Sheriff's Department alleging a long standing pattern of racial discrimination and brutality, are ordered to pay the Defendant Sheriff's Department $92,000 in attorney fees, despite the fact that Plaintiffs dismissed the suit three months after filing and prior to any significant litigation (In re Kuntzler, 914 F.2d 505 [4th Cir. 1990]; Taylor, 1991; Kuntzler, 1991). A group of public school teachers allegedly transferred among schools to comply with a desegregation order bring action against the school district. The teachers claim that the transfers are in bad faith and for political and personal reasons rather than to comply with the intent of the desegregation decree. The teachers and their counsel are ordered to pay $67,000 in school district legal fees when their claim is dismissed (Davis v. Carl, 94

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906 F2d 533 [11th Cir. 1990]) A Louisiana inmate proceeding without counsel files a Federal habeas corpus petition and is fined for a "frivolous" filing. The court rules that sanctions can be awarded, including fines and attorney fees, against private attorneys and pro se petitioners in habeas corpus actions contesting the constitutionality of confinement (Anderson v. Butler, 886 F2d 111 [1989]; Chaires, 1992; NOTE, 1988). The United States Supreme Court refuses to review a 1.2 million dollar Rule 11 sanction against the Christie Institute, a Washington D.C. public interest group. The award which had been upheld by the 11th Circuit Court of Appeals grew out of the summary dismissal of two journalist's claims that the CIA attempted to kill dissident Contra leader Eden Pastora and in the process injured the journalists. The judge dismissed the claims and awarded sanctions holding the suit was groundless for lack of supporting evidence. The CIA had denied the incident and refused to respond to discovery on the grounds of national security (Avirgan v. Hull, 89-5515) At this time the CIA defendants are seeking an additional $400,000 in sanctions alleging that the Christie Institute's appeal was frivolous. What the above and thousands of similar cases have in 95

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common is that plaintiffs' attorneys were held personally liable for actions done in pursuit of their clients' cases. In each instance, Federal Rules of Civil Procedure, Amended Rule 11 (FRCP, 1983) was used by a defendant government agency to sidetrack the issues and to have sanctions imposed for even bringing the case. And, in the above cases, except for Avirgan, the sanctions imposed were reversed or substantially reduced on appeal, but only after considerable time had elapsed and at a significant economic cost to the citizen plaintiffs and their counsel. FRCP 11 and other similar enactments were in large part intended to reduce frivolous tort litigation in the private sector and reduce abusive or discourteous attorney conduct, to cut-back on the so-called "litigation explosion" (Burbank, 1989; Carter and Cannon, 1985; Weiss, 1985). In the hands of government attorneys, FRCP 11 and similar state rules and statutes have become a major tool to silence criticism of government and to impede attempts at institutional reform (Chaires, 1992; Taylor, 1991; Joseph, 1990; Tobias, 1989; LaFrance, 1988; NOTE, 1987). In civil rights litigation in particular, Rule 11 is being disproportionately applied against plaintiffs (Burbank, 1989; Cogan, 1989; Cochran and Vairo, 1988). Rule 11, however, as indicated in chapter I does not 96

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stand alone as legal reform which may have behavioral implications that are adverse to individuals and groups that are attempting to establish or vindicate rights and interests. Rule 11 is merely symbolic of the legal reforms taking place in a broader social context, reforms which according to Black's (1976) behavior of law perspective presented in chapter II, often operate to disenfranchise people from equal access and use of the legal system. To better appreciate the full impact of some legal reforms and particularly Rule 11 it will be helpful to more fully examine the mul.ti variant forces behind the enactment of Amended Rule 11 in 1983. The Forces of Change As has briefly described above, the federal courts, and the vast majority of state courts which follow the federal rules and practices, have long had the inherent power and legal authority to exercise substantial control over caseload and attorney conduct. At the very least, frivolous and groundless claims have always been subject to early dismissal, if not actionable as torts of abuse of process or malicious prosecution. A question must emerge concerning why the 1980's saw such enormous political and economic expenditures in legal reform in the commercial 97

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arena. Three distinct approaches (but admittedly not all inclusive) to this question are readily apparent: that of tort reform to foster economic competitiveness; that of judicial efficiency; and that of judicial control of abusive attorney conduct. Tort Reform Perspectives Tort reform was the legal crusade of the 1980s and the impetus for reform, while waning, continues into the 1990s (Weisberg, 1992;. Jost, 1992; Phillips, 1992; Huber, 1992; 1988; Blum, 1990; Teschner, 1988; Wade 1986) The 1992 presidential debates saw the incumbent President Bush argue that dramatic legal (tort) reform was needed to reduce frivolous litigation which was driving up medical costs and making American manufacturing uncompetitive. Indeed, Vice President Quayle in his capacity as chair of the President's Council on Competitiveness addressed the 1991 American Bar Association with a "50 point proposal for reform" of the American legal system so that America could be relieved of the crushing burden of litigation (Chambers, 1992; D'Alemberte, 1992; Gillers, 1992; Goldberg, 1992; Gibbens, 1991). The plaintiff's bar (lawyers who generally represent individuals against medical insurers and manufacturers) have not been silent or meek in response. 98

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Spencer (1992) relates that about 40% of the contributions to President Clinton's campaign came from attorneys. Peter Huber in Liability (1988:3) describes the American system of tort law as a disaster, as "one of the most ubiquitous taxes we pay, now levied on virtually everything we buy, sell, and use." Huber, a Ph.D. engineer and lawyer, has become the spokesman of industry, writing about how current tort law (even after years of reform) encourages litigation and frivolous claims and makes America uncompetitive (Huber, 1992). This view is shared by Walter Olson (1991) who relates that Americans have become lawsuit crazy and that greedy, immoral lawyers have forced every dispute, from child care to medical care, into a litigation battle where only the lawyers benefit. Thus, he says, the "litigation explosion." In contrast, others such as Phillips ( 1992) Jost (if not most) (1992) and Gibbons (1991) relate that many of the grounds fabrication. Jost justifying describes tort three reform "myths" are sheer that many American industries and former President Bush's Council on Competitiveness foster as reasons for tort reform: The Avalanche of Claims; The Liability Tax; and The Unlevel Playing Field (1992:45). New York Governor Mario Cuomo's Commission on Trade and Competitiveness would seem to 99

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agree. In its multivariant analysis on the competitiveness problem, the litigation explosion is not mentioned. The theme of a "litigation explosion" clogging the courts and driving businesses into bankruptcy has been a popular one which insurance companies and other vested interests have been quick to promote (Cox, 1992, Huber, 1992). Juries and civil jury verdicts have been another arena of contention. The mythology of litigation abuse abounds with stories of multi-million dollar verdicts for "slip and falls" and minor product defects. The myth, however, does not fit the reality as the defendant prevails in about eight out of ten civil tort cases, and in the very few cases where juries do award outlandishly disproportionate sums to the plaintiff, the judgments are quite often reversed or reduced on appeal (Schnapper, 1992; Guinther, 1988). It is unlikely that these opposing views about the use and abuse of tort law can ever be resolved. They reflect economic considerations of production and consumption that have been the subject of legal (let alone social) disputes since the rise of the industrial age. Further, they reflect ideological differences about the of court involvement in political issues of economic distribution and cost sharing inherent in tort practice (see, for 100

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example, Abel, 1990) It is clear, though, that while other legal "reforms" such as limiting inmate access to federal habeas corpus review may have engaged more media attention, particularly in the mythology surrounding death row appeals, tort reform most assuredly has significantly contributed to the transformation of the legal landscape of the 1990s. As chapter 1 indicated, much of tort reform has the impetus of removing litigation from jury consideration. This in itself can be considered a conceptual shift as described in chapter 2 from at least the ideological imagery of the Constitution's 7th Amendment as expressed in De Tocqueville's expression of the political function of the jury. Judicial Control Perspectives It is too easy to see tort reform rhetoric as the major causal behind such legal reforms as Amended Rule 11. It must not be forgotten, however, that the courts do have increased demands for their services, usually without proportionately increased resources to handle those demands. Besides general civil rights statutes such as 42 U.S.C. Section 1983, there are a plethora of more specialized civil rights statutes that generate substantial 101

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litigation in federal courts. 5 The Civil Rights Act of 1964, the Vietnam Veterans Readjustment Act, the Age Discrimination in Employment Act, and the Pregnancy Discrimination Act are but a few of the laws in effect in just the employment arena as the American legal system entered the 1980's. In addition, federal courts were and remain responsible for de novo and appellate review of an incredible diversity of issues. The appeals function of the federal courts ranges from appeals of the actions of administrative agencies like the Interstate Commerce Commission (ICC) through appeals of benefit denials such as Social Security to the review of similar activities done by the various states. The original jurisdiction of federal courts is no less broad. Where federal actors are involved, federal trial courts operate much like the trial courts of any state (see, for example, Tarr, 1994:147-185). Federal courts, however, tend tq be much more formal in the actual conduct of proceedings. Under diversity jurisdiction, federal district courts hear trials of private individuals from different states and who seek the 11neutrality11 of a federal court. 6 Further, a particular state case may involve a 11substantial federal question11 which may move one or more of the parties to desire that a federal court exercise 102

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original jurisdiction. Not the least of the pressures on the federal bench at both the trial and appellate levels are criminal and quasicriminal (fines and compliance orders) litigation. Besides exercising original jurisdiction in federal crimes, the federal courts expend substantial resources fulfilling their appellate mission of reviewing state criminal convictions. Habeas corpus pursuant to 28 U.S.C. Section 2254 (federal review of state convictions) engages a substantial amount of federal court time. Further, increased criminal prosecution activity at the state level has in many instances involved federal courts in extensive prison litigation as more prisons and entire prison systems become overcrowded (see, for example, Dilulio, 1990) Given the federal court workload, and as noted earlier, Congress's propensity to enact broadly worded legislation that requires judicial interpretation or to "federalize" increasing amounts of commercial, economic, and criminal activities, it is not surprising that.federal courts may respond with concerted efforts to improve the efficiency and effectiveness of the federal judicial system. Such responses can be direct as in reducing diversity jurisdiction to indirect as in heightening pleading requirements. In line with the latter, changes in 103

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procedure like Rule 11 can be considered attempts by the federal courts to reduce their review reSJ;?Onsibilities, limit access to trial and remove cases which are considered frivolous or groundless. To many, these activities of the court may be seen as insensitive and elitist. An equally legitimate view is that such conduct, particularly in the arena of sanctions, reflects pragmatic efforts to maintain a quality federal legal system in the face of expanding demand and (proportionately) diminishing resources. Quite simply, the rise of sanctions can be considered as a recognition that other forms of restraint were not effective. Only making attorneys personally responsible for "over litigation" in federal courts would quell the "mobs at the gate" so to speak. Controlling Abusive Conduct Both the tort reform/economic competition and the judicial control/efficiency perspective merge in the last major reason underpinning substantive and procedural legal reform. Sanctions hit at the heart of attorney choice in undertaking a civil case and at the actual conduct, pretrial, during trial, and posttrial, of that case. Here the grounds for legal reform, particularly sanctions, 104

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become much more problematic and cloudy, and the adverse behavioral impacts of legal reform become much clearer. As related above, early sanctioning practice focused on an attorney's subjective bad faith in filing and conducting a particular legal action. It is clear that many members of the bench and bar did not believe that this focus on subjective intent was adequate to deter abusive attorney conduct. Carter and Cannon (1985), early commentators on Amended Rule 11 relate, that along with concerns about frivolous and groundless filings and pleadings, many federal judges and attorneys who practiced in federal court were concerned with the 11unprofessional11 conduct of some attorneys. This unprofessional conduct fell into two major categories: simple discourtesy and being unprepared. Simple discourtesy in federal court vis-a-vis attorney-judge has never (at least in the last SO years) been a real problem. Federal courts in general are known for their strict adherence to decorum and formality. The discourtesy the judges and attorneys were concerned with was inter-attorney, what was perceived as a decline in the conduct of the ngentlemen of the bar. 11 Judges were increasingly being called upon to formally resolve disputes which heretofore had been resolved informally. Thus, items 105

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like stipulations to facts and agreements to continuances were seen as increasingly becoming the subject of fractious and time-consuming litigation. Being unprepared could be as simple as not having the proper support for a document to not being able to argue a recent case to being perceived (by the court) as not having the litigation skills needed to appear in federal court. Thus, what constituted being prepared was often based on a subjective evaluation of the judge (see for example, Cochran, 1991:139-140). Related to the change in litigation conduct was, as described above, an increase in the sheer variety of matters coming before the court. Federal courts were being called on to decide increasingly complex and value laden issues. In some instances "creative litigation," attempts to establish new rights or theories of law, stretched the legal tolerance of members of the bench, let alone opposing counsel Wide variances in judicial responses to such conduct led to strong pressure for some unifying rule to control such conduct. Hence, Amended Rule 11 and its mandatory sanction provisions. Looking at the Numbers The above reasons for the rise of sanctions are 106

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normative. They are the ones which are expressed by rulemakers and proponents of sanctions. No one is going to publically state for the record that the reason for an enactment like Amended Rule 11 is to limit access to the courts as a venue for social change or to deprive litigants of a meaningful individual remedy for injury. In the same vein, no one is going to formally state that they oppose such reform because they desire to be free to file and advocate any claim no matter how tenuous. Nor is it likely in the case of tort reform that either side will articulate purely profit motives for their stance. In point, it is probable that the various interests involved on both sides of legal reform reflected a range of motives and intentions, some truly believing in their cause, others only rendering lip service. As such, it is appropriate to take a pre-and post-Rule 11 look at federal case loads and let the reader make his or her own determination as to the viability of the various arguments. Federal Court Load Circa 1982 A breakdown of filings in federal district courts in 1982 (the year before major sanctions revisions) discloses a far different picture than the "myth" of overwhelming private individual litigation often used to justify reform. 107

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In 1982, plaintiffs filed 206,198 civil suits (about 80 filings per 100,000 persons) and 31,623 criminal cases were filed by federal prosecutors. Of the civil cases, 67,276 were diversity contract actions, 29,303 suits, 17,038 were civil rights actions were prisoner (exclusive of prisoner suits which were primarily habeas corpus actions under 28 USC Section 2255 for federal prisoners and Section 2254 for state prisoners), and 12,812 were Social Security cases. Only 36,134 were defined as personal injury (tort) suits (Council On The Role of Courts, 1984). Of perhaps more importance, in all civil actions the government was itself plaintiff in 48,868 cases and defendant in 26,905 (Council On The Role of Courts, 1984:28-71). To put this in another perspective, during the same time period there were 367,866 bankruptcy petitions (federal courts handle bankruptcies) involving 527,342 estates.7 In short, on the eve of federal and state Rule 11 type reform, most of the increases in court filings were the result of family law and business litigation in state courts and bankruptcy, social security appeals, and diversity issues in federal courts, not private tort cases. Federal Court Case Load Circa 1993 In the year ending March 31, 1993, there were 228,162 108

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civil filings in the U.S. District Courts. This was an increase of 2% from the previous year which had an increase of 8% from the year preceding it. Prisoner petitions were up 16%, civil rights filings were up 14%, personal product liability filings were up 34% and social security appeals (made initially in district court) were up 22%. The federal government was a party in 57,332 cases. This was a decrease of 9% from the previous year. There were 47,850 criminal filings in this period, with a pending caseload of 46,358. Drug cases accounted for 12,725 of the criminal cases. Again, to put this in perspective, there were 939,935 bankruptcy filings in this period under Chapters 7, 11, 12, and 13 (source, Federal Judicial Workload Statistics: March 1, 1993) .8 Again, the federal government played a substantial part in federal court civil litigation. The U.S. was the plaintiff in 27,666 cases and the defendant in 29,666 of the cases in which it was party. Worthy of note is that the March 1, 1993 Federal Judicical Workload Satistics report relates that federal government plaintiff action was down by 25% in 1993 from 1992. The report attributes this to several policy changes. For example, the Department of Veterans Affairs (VA) stopped using the federal district courts to collect overpayments of "less than $500" thereby 109

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reducing its filings by 58% to 2,983. Student loan filings (for defaulted student loans) was reduced by the Department of Education (DOE) by 36% to 4,035 cases (1993:3) .9 Comparison What is apparent is that the number of filings in federal courts remains about the same, 206,198 in 1982 vs. 228,162 in the year period ending March 31, 1993. What has changed is who is using the federal court and for what. Another consideration is the use of federal courts by the government to collect what could be considered "frivolous matters." Private plaintiffs in non-civil rights matters must meet a threshold requirement of a sum of $50,000. Since 1983, as Galanter and Rogers (1990) report, interbusiness law-suits, including contracts and intellectual property, are the fastest growing part of the federal litigation load. According to these law professors, business litigation, not private individual litigation, is now the major consumer of litigation legal services. Increasingly, large business interests are utilizing jury trials to litigate their claims and many of these claims are in the megamillions. Finally, the numbers indicate that, understandedly, the government is probably the major user of the federal court system. 110

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In line with the idea of who uses the federal courts, it is useful to consider, also, how often. Two decades ago Galanter (1974) developed a useful perspective on examining court utilization. He suggests that examining the parties and how often they use the courts would be valuable in understanding why certain individuals and groups are more successful in using the civil courts. The typology Galanter presents divides the parties in civil suits into one-shotters (OS) and repeat-players (RP) OSs are litigants, plaintiffs or defendants, who rarely use the courts. Examples of OSs are litigants in family law, bankruptcy petitioners, and tort plaintiffs. RPs are entities, plaintiffs and defendants, who are routinely involved in litigation of a similar type. Examples of RPs are debt collection agencies, some manufacturers, and, of course, the government. As Galanter relates, RPs have a distinct advantage in their litigation with OSs. For one, RPs often have greater resources and attorneys with specialized training and experience in the subject area. Also, RP's often can structure the law to their advantage. It is with the various perceptions of court overload, explosive tort litigation and attorney misconduct, juxtaposed against a view of who the real players are in litigation, that the rise of Amended Rule is approached. 111

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The Enactment of Amended Rule 11 It has been noted that prior to 1983, the year of the enactment of Amended Rule 11, several long-existing means of sanctioning abusive litigants, and attorneys, existed. The question must arise, "why was Rule 11 amended in the light of these existing remedies?" Willging (1988) in an official publication of the Federal Judicial Center, The Rule 11 Sanctioning Process, relates that the Judicial Conference's Advisory Committee on Civil Rules stated several reasons. Among the major reasons related in the advisory committee's notes were that "The new language is intended to reduce the reluctance of the courts to impose sanctions" (cited by Willging, 1988:20) and that: [g] reater attention by the district court to pleadings and motion abuses and the imposition of sanctions when appropriate, should discourage dilatory or abusive tactics and help to streamline the litigation process by frivolous claims or defenses (cited by Willging, 1988:20). Thus, it would seem, the articulated reasons for amending Rule 11 were consistent with both a judicial efficiency motive and a control of abusive attorney conduct motive. Tort reform is not officially mentioned as a motive. Willning's perceives of the motivation(s) behind the amendment as: 112

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An overarching view of Rule 11 sanctions is that they are part of a package of case management tools that are designed to enable judges to separate cases that warrant full judicial attention from those that are frivolous or meritless (1988:21). Congressional Intent in Amended Rule 11 As related above the 1934 Enabling Act allowed the federal courts to create and amend their own rules of practice and procedure, subject to congressional debate and approval. Given the substantial Congressional comment and controversy that occurred in 1982 when an amendment to FRCP 4, Process, was involved, it is curious that Amended Rule 11 produced no comment or controversy in the halls of Congress, at least none that is disclosed in the Congressional Record. It appears from the record (or lack of it) that Amended Rule 11 was allowed to pass into law by the automatic procedures outlined in the Enabling Act. This is more curious because in 1982 Congress enacted the Judicial Refor.m Act of 1982 which, inter alia, established a new national 11Federal Court of Appeals11 in recognition of the substantial increase in case load. The stated express purpose of the Act is: to resolve some of the myramid structural administrative and procedural problems that have impaired 113

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the ability of our Federal courts to deal with the vast range of controversies among our citizens and to respond promptly and meaningfully to their demands for justice (source, Congressional News and Reports, p.11, et seq. That Act was accompanied by several congressional comments as to increases in litigation and includes a letter to Senator Robert Dole explaining how important the Act was to patent law (p.46-47). It may be that amendments to Rule 11 were seen as minor, given existing law in the sanctions area. It may be that it slipped through without comment as an oversight. Or, it may be that the rule amendment was purposefully obscured to avoid any comment. There is, though, a perhaps dispositive comment in the 1983 records of the September 21-22, Judicial Conference. Judge Hunter of the Subcommittee on Judicial Improvements related that it was exploring (at the request of Judge Alfred T. Goodwin) "ways and means to reduce frivolous or meritless litigation in the courts." The judges of the various courts had been canvassed for ideas and suggestions. The conclusion of the Subcommittee was that "existing tools are sufficient, but perhaps underutilized" (source, Reports of the Proceedings of the Judicial Conference of the United States, 1993:12). 114

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Since Amended Rule 11 had already been enacted (April, 28, 1983) it would seem that either "one hand did not know what the other was doing or did," or, that Amended Rule 11 was not enough. One potential problem with the then existing rulemaking process was that much of the process occurred in obscure privacy. In 1988 Congress amended the 1934 Enabling Act to provide for more openness and comment on new rules and amendments. Under the 1988 amendment the advisory committee recommendations cannot be given until a six month notice and comment period has passed. The practical effect of this is to make the rule construction process take well over a year, and as Carrington (1991) relates, more political. The Actual Construction of Amended Rule 11 The 1983 amendments to Rule 11 were actually more than just amendments. They were the creation of an entirely new rule; a new rule that arguably, reflected an emerging new (or perhaps reemerging old) conception of the purpose of the courts. That conception was that the courts are for the vindication of well-established and recognized claims. The new view of Rule 11 can be seen in just the changing of the Rule's title. Prior to the amendments the Rule was 115

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entitled "Signing of Pleading." The title was amended to, "Signing of Pleading, Motions, and Other Papers: Sanctions." The new rule was substantially more complex and direct. ("Was" is used since it was again modified in 1993, part of the subject of chapter IV) Amended Rule 11 reads: Every pleading, motion and other paper of party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the party's pleading, motion, or other paper and state the party's address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The rule in equity that averments of an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances is abolished. The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief for.med after reasonable inquiry it is well grounded in fact and is warranted by existing law or good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or 116

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other paper is not signed, it shall be stricken unless signed promptly after the omission is called to the attention of the pleader or movant. If a pleading motion, or other paper is signed in violation of this rule, the court shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred be cause of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. (As amended April 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987). Emphasis by author.10 Amended Rule 11 may seem innocuous, even desirable. Few would argue that there are not abuses in the legal system, and few would not argue that frivolous claims can be vexatious and expensive. Amended Rule 11, however, is the codification in the form of procedural law of nearly all existing substantive and procedural methods and grounds for sanctions. Most importantly, Rule 11 is mandatory. It is the mandatory nature of Amended Rule 11, along with its sheer breadth, that produces many of the adverse behavioral implications of the Rule. Those will be examined in chapter 4. 117

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CHAPTER 3 END NOTES 1. Susan Lentz, J.D., Ph.D., a former deputy attorney general for Nevada and currently a faculty member in the Department of Criminal Justice at the University of Nevada, has been of inestimable help in reviewing and commenting on this entire text. 2. In instances where failure to obey an order of the court is at issue, procedure usually requires that a "show cause" order be issued by the court. Such and order requires a party to come before the court and show cause why they should not be held in contempt (see, for example, FRCP 70). 3. The amendment to habeas corpus procedure was minor. The amendment eliminated the requirement that habeas corpus petitions be sworn to, substituting a notice that the petitions were signed under "penalty of perjury" (source, The Third Branch, August, 1982, p.6.) 4. Rule 4: Process, describes the procedure for notifying a potential defendant of a claim. It invokes the jurisdiction of the court in the controversy. It is a critical since failure to respond can result in the plaintiff obtaining a default judgment. Generally, it is required that a summons and complaint be served personally by a disinterested party. In federal actions service can be by the United States Marshall Service or a private process server (see, for example, FRCP 4 (c) (1)). 5. The Civil Rights Act of 1866 was vetoed by the President and the veto was overcome, bringing about "the first Congressional protection of individual liberty in American history" (Hall, Wiecek and Finkelman, 1991:234). The Act was "reenacted" in 1870 with Congress feeling that the 14th Amendment gave the Act greater legitimacy. 6. Inter alia, the bill would also have amended 42 USC Section 1983 so that 1983 could be used to vindicate constitutional rights but not statutorily created rights unless that statute specifically provided for Section 1983 jurisdiction. Immunity from 1983 actions for local 118

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governments would also have been restored. 7. Bankruptcy judges operate in separate courts under their own rules. They are not considered Article III judges. 8. Workload statistics are published by the Administrative Office of the United States Courts, Washington, D.C., 20544, on an annual basis. 9. In the case of the VA an agreement was worked out with the IRS to collect benefit overpayments from tax returns. In the case of the DOE, a pilot plan was established to garnish wages. It would seem further study of this would be a fruitful area for scholarly comment. 10. There was a minor technical change to the Rule in 1987. 119

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CHAPTER 4 THE BEHAVIOR OF REFORM Chapter 3 presented the history and evolution of attorney sanctions along with a set of suggestions (by no means all inclusive) as to why Amended Federal Rule of Civil Procedure 11 evolved into its current (pre-1994) form. In conclusion, chapter 3 suggested that Amended Rule 11 encapsulated in one procedural rule all of the existing discretionary means and grounds to personally sanction attorneys for engaging in frivolous or groundless litigation. This chapter more specifically addresses the behavioral implications of Amended Rule 11 and discusses how some of those behavioral implications may be adverse to congressional intent in litigating civil right claims and to the general ability of impoverished or effectively disenfranchised individuals to litigate their claims of abusive and/or illegal governmental conduct. Particular emphasis is given to the impact of Rule 11 on litigating claims against state criminal justice agencies in federal courts. Finally, this chapter will address the general 120

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recognition of some of the adverse impacts of Rule 11 which led to other amendments of the rule in 1993. This section concludes with observations that these remedial amendments will have little impact on changing the adverse behavior of sanctions. The Behavior of Rule 11 The behavior of Amended Rule 11, hereinafter referred to as Rule 11, in many ways was predictable. Quite simply, as a legal reform it was and is subject to the same lack of consensus as other legal reforms. As pointed out earlier in this text, it is difficult to fix something if you do not know what it is supposed do. As Joseph (1988A:62) notes, Rule 11 may seem not unreasonable, even desirable, but the actual practice and impact is far different than the ideal in that "it inaugurated the era of mandatory sanctions and introduced a new, objective standard that is indifferent to the subjective mental state of an alleged offender." As Joseph went on to explain, the use of Rule 11 by federal district courts has been vigorous but uneven. In many instances the idea of sanctioning attorneys so caught on that judges began to "dust off" and use other means to sanction attorneys when they could not use Rule 11 (Joseph, 121

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1988B) However, the most heavy sanction, awarding the opposing party's attorney fees, has become the norm rather then the a practice that violates the long standing "American Rule" against "fee shifting" (Cochran and Vairo, 1988; Wade, 1986). Many states where quick to follow with similar civil rule changes litigation. or statutes that covered state level civil Colorado's "Frivolous, Groundless, and Vexatious Claims Act" in 1983 (CRS 13-17-101 et seq) was legislated into existence soon after the implementation of Federal Rule 11. Within weeks, articles and practice notes began to appear in bar journals about how to use Rule 11 as a "litigation tool" (Figa, 1983). Iowa R. Civ. P. 80(a); Massachusettes R. Civ. P. 11(a); Idaho R. Civ. P. 11; California Code of Civ. P. Section 1038; Texas R. Civ. P. 13; Illinois Civ. Prac. L. Section 2-611; Michigan Court Rule 2.114; Arkansas R. Civ. P. 11; Mississippi R. Civ. P. 11 (b); Indiana Code 34-1-32-1(b) (1); Washington Civ. R. 11; Montana R. Civ. P. 11; and North Dakota R. Civ. P. 11. are other examples of rules or laws nearly identical to Federal Rule 11 that were amended or enacted during the same time period. As can be seen, in some instances states enacted "frivolous and groundless" claims statutes. In others, the state's rules of civil procedure were amended 122

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I to match Federal! Rule 11. Some states did both. i Rulr 11 has been a dramatic change in American I Civil Procedure that it: I I 1. Mandates' judicial sanctions including orders I I for one to pay the other's attorney fees and costs : if a frivolous, I groundless, or I vexatious pleading or motion is filed. I 2. claims "not well grounded in current I law" as sanctionable conduct. 3. Makes th: e attorney personally responsible for I I such fees and costs as may be awarded. I I 4. Has i mqved from a subjective "Bad Faith" I standard fGr determining what is frivolous, I :vexatious, or not well grounded in current lawlto an "objective, should have known" I I standard. I Individually, each of the four listed points can be perceived of as a! significant conceptual change in American law. In the level of conceptual shift becomes more apparent. I To bett.er e!xplain this point it will be helpful to review how the u;s. Supreme Court has handled lower court arid practice concerning Rule 11. 123

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:The Supreme Court and Sanctions In one of its earlier reviews of sanctions under Rule 11 the Supreme Court took the view that the purpose of Rule 11 "is not but sanction." The Court further described sanctions as "retribution" for failure to obey the rules (Pavelic v. Marvel Entertaimnent, 110 S. Ct. 456:460 [1989]. A year later the court related in Cooter & Gell v. Hartmarx Corp (110 S.Ct. 2447:2454 [1990]) that "it is now clear that the central purpose of Rule 11 is to deter baseless filings in district court." This movement by the Court from punitive to deterrence policy perspectives is indicative of the long range problems with sanctions practice. In one year the Supreme Court, admit-tedly rhetorically, spoke of sanctions in the context of retribution .1 In the next year the purpose of sanctions became deterrence. However, the harshness of the sanctions has not changed. What has changed is a baseline, punishment becomes deterrence and the deterrence idea of proportiona-' li ty becomes; lost. Perhaps: more importantly, the Supreme Court has refused to grant certiori (discretionary review) to most sanctions appeals. The general trend has been to support the factual findings of the trial courts as to the why and I I how much I This trend has evolved, at least in 124

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part, because of the substantial satellite litigation generated by sanctions practice. Satellite Litigation One point about Rule 11 that must not be overlooked is how well it has performed on the expectation of lessening court docket overload. It appears that the rule itself has generated substantial formal and informal satellite litigation. Although, some circuits have generated much more litigation than others (see for example, Cochrane, 1991) In line with this it appears that usage varies dramatically from jurisdiction to jurisdiction and that informal dispositions of Rule 11 vary greatly by region. The study of Rule 11 in several different jurisdictions done by Kritzer and Zemans (1993) supports a "local legal culture" perspective on sanctions prevalance. Nelken (1990), for example, relates that a survey of judges and lawyers in the Northern District of California (9th Federal Circuit) disclosed substantial differences from the results of an earlier study done by the Third Circuit Task Force on Federal Rule of Civil Procedure 11 (see, Burbank, 1989). The same survey questions were used by Nelken as in the Third Circuit study; however, the Northern District of California is considered to be much more active in 125

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sanctioning practice than the Third Circuit. This high/low sanction perspective is the same taken by Wilging (1988) Nelken relates that the most important aspect of her study is the confirmation that 11Rule 11 has been far more widely used than the number of published opinions in the Northern District might suggest11 (1990:148). Nelken's observation underlines a key aspect of studying and analyzing Rule 11 practice, that is; much of it occurs outside channels open to the usual public access. Measuring Actual Usage Olson (1992) comments on the problems of studying federal district courts by using published opinions. Federal district courts operate both in an original trial and an appellate capacity as in habeas corpus pursuant to 28 U.S.C. Section 2254. In either instance, except of course, for criminal trial cases, the Rules of Civil Procedure apply. Hence, Rule 11 applies. Federal district court opinions are published in the Federal Supplement (F.Supp.) reporter system and decisions of federal district courts as well as other federal courts concerning the interpretation and practice of the federal procedural rules (civil and criminal) are published in the Federal Rules Decisions (FRD) All decisions, however, are 126

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not published. Quite clearly, for an opinion or decision to be published there must, in fact, be one. Most federal cases, like their state brethren, are settled prior to formal adjudication. Further, the opinion or decision must be one that is put forth in a formal writing. The mere fact that a decision by the court is "formal" in that it terminates a controversy, or is appealable, does not mean that it will be "published" (Olson, 1992) In point, Olson (1992:786) relates that in 1983 FRCP 52(a) was amended from a requirement that in bench trials judges make a formal written finding of facts and conclusions of law to a guideline that "oral findings of fact and conclusions of law 'recorded in open court' are sufficient." Rule 52(a) has long stated that in deciding motions, except for involuntary dismissals of cases, the court is not required to make findings of fact and conclusions of law, period.1 According to the notes of the Advisory committee on rules, this amendment was adopted to "lighten the burden on the trial court in preparing findings in nonjury cases" and to reduce the number of opinions published by the federal district courts (Olson, 1992: 786) The sum of the above is that the true prevalence of sanctions practice is difficult to determine. Empirical or 127

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quasi-empirical studies like Kritzer and Zeman's (1993), Nelken's (1990), The Third Circuit's (Burbank, 1989) and Willging's (1988) tend to indicate that Rule 11 sanctions practice is much broader than the published cases would indicate. Quite simply, it is impractical to measure how many cases were never filed or voluntarily terminated because of the threat, express or implied, of sanctions. Thus, sanctions practice has a quantifiable dimension (actual usage), a qualitative dimension (anecdotal information) and a symbolic dimension (should FRCP 11 exist). Given this, it is not surprising that Kritzer and Zemans (1993:535) point out "By 1990 these changes (mandatory sanctions) had produced an acrimonious debate among federal litigators, legal academics, and federal judges 11 Conflict onthe Utility of Sanctions One interesting aspect of the debate over sanctions is that, in general, empirical studies of Rule 11 have indicated support for the rule while scholarly comment has been in general highly critical of the rule. It may be, in fact, that support and criticism for Rule 11, often based on the same data, is the product of symbolic conflicts of interpretation of the rule and the practices surrounding 128

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it. This symbolic conflict can be explained in the context of the studies done by Nelken (1990), the Third Circuit (Burbank, 1989) and Willging (1988) .2 Nelken and the Third Circuit used a written survey device, Willning a personal interview format. The intent of their studies was to measure attitudes about, and behavioral changes resulting from, Rule 11. The descriptive statistical analysis of the results of those surveys indicated strong support for the Rule and its usage. Strong support,.however, is a relative term. Willning (1988:3), for example, relates that 11more than one-third of the lawyers expressed concern about potential chilling effects on lawyers' collective willingness to advocate novel theories or to represent unpopular clients. 11 Burbank (1989) relates about the same one-third percentage of concern on the same points (26%) as does Nelken (31%) How Cold is Chilling? In contrast to the empirical studies that indicate strong support for the rule, published academic and practitioner comment on the substance and impact of the rule has been almost uniformly and overwhelmingly critical (for example, Chaires, 1992; Cochran, 1991; Givens, 1991; 129

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Kuntzler, 1991; Taylor, 1991; Tobias, 1989; Cochran and Vario, 1988; Joseph, 1988A; Joseph, 1988B; and LaFrance, 1988). Even academic and practitioner comment that is supportive of the rule and its practice expresses strong reservations about its potential "chilling" effect on civil rights litigation and the creation of new causes of action (for example, Wade, 1986; Chrein and Duffy, 1985; Weiss, 1985) Support and criticism of sanctions practice as expressed by the published studies and commentary can be compressed into six distinct areas: Support Improves litigation practices Two way street, can be used against the "big guys" Criticism Disproportionate use in civil rights cases Uneven application Over dependence on 11fee shifting" 11Chilling" creative litigation Thus, it can be seen that support for sanctions is often premised on its effect on the 11process11 of litigation, whereas criticism is more frequently based on perceptions of the 11result11 of sanctions. More often, it seems, surveys emphasize practitioner concerns of cost and efficiency. Hence, one explanation for the differences in empirical result and critical comment is that the empirical 130

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studies have concentrated on a generic review of sanctions practice and the critical comment has been on the effect of the rule on a specialized area of practice, civil rights and public interest litigation. Another possible explanation is that the sampling techniques utilized in the empirical studies have not captured that portion of the bar involved in civil rights and public interest litigation. For example, Nelken (1990) notes that only ten percent of her sample group had practiced civil rights law. Still another explanation is that a majority of the bar has adapted to the rule and see it as merely another tactical or strategic tool.3 This last view would seem to be in-line with a perspective that sanctions have become normal, that the legal landscape has been changed. This change is in the direction of a conceptual view that indeed there are many frivolous and groundless claims and motions filings and that the appropriate remedy is a personal sanction of the attorney, usually in the form of an order to pay the other side's attorney fees. How chilling this is to litigation is Cold is often a subjective matter. One problematic. may joyfully anticipate the cold because snow arrives and it is the only way to ski. Others may tolerate the cold and cover 131

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themselves with more clothing in order to endure the inevitable and uncontrollable. Others, however, may huddle in doorways wondering why the door to the warmth of the law is locked. As will be explained below, past and current controversy on the utility of sanctions was predictable. From a behavior of law perspective, that sanctions would have a disproportionate impact on civil rights litigation, and hence on the disenfranchised or the marginal, was almost a foregone conclusion. Rule 11 and Civil Rights Litigation Rule 11 and its progeny have become defense law in that they have increased the costs of bringing suit and reduced the profits. In some jurisdictions it has become almost routine to file for sanctions at every step of litigation. The court by the nature of the Rule is forced to hold a hearing. Even if the request for sanctions is denied, the defense is able to find out valuable information about the case by prematurely forcing the disclosure of tactics and strategy. And the cost of litigation in time and money has increased. Further, as Cochran and Vairo (1988) point out, there seems to be very little litigation surrounding the filing of frivolous or groundless sanctions claims.4 132

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The moving party in a request for sanctions generally does not have to prove the request is not frivolous, so s/he has nothing to lose and everything to gain. Indeed, the nature of legal practice is such that defense attorneys are almost obligated to bring 11every defense.11 Failure to claim that a plaintiff's case is frivolous or groundless could be construed as an admission of validity. As Cochran and Vario note: 11In 57.8 percent of cases in which a Rule 11 violation has been found, 46.9 percent have resulted in sanctions against the plaintiff as compared to 10.9 percent against defendants11 (1988:344). Again, there are problems with using only published cases as a basis for study (Olson, 1992) As noted, for example, in Nelken's (1990) study, the actual use of Rule 11 is far greater than is indicated by published cases. Whether those unreported instances reflect the same kind of defense bias is unknown. It is, however, strongly indicated by the critical commentary listed above that such a defense bias exists in the use of sanctions in civil rights cases simply because (1) the government is usually acting in the role of defendant in such cases, and (2) civil rights claims by their very nature often violate the precepts of Rule 11. As Black (1976:13-36) would predict, individuals and 133

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groups that are lower on the stratification dimension of law (distribution of resources, including access to the law) are both less likely to use the law and less able to use the law. He summarizes in part this point with his observation that "Law varies directly with rank" (1976: 17) Further, as Black relates in the dimension of organization, "Law is greater in a direction toward less organization than toward more organization" (1976: 92). What is emerging here is a perspective that when the social rank and organizational identity of one litigant is low and that of the other litigant is high, the likelihood of being sanctioned increases. That situation is, of course, a usual one where a civil rights litigant brings an action against an organized entity. As the next sections explains, civil rights actions often involve persons of low status. The Ambiguity of Civil Rights The problem is that "civil rights I that amorphous collection of constitutional and statutory entitlements accorded all citizens, have become confused with other kinds of civil litigation, such as torts. Consequently, the same kinds of Removals, Caps, and Sanctions, that apply to, for example, an automobile accident claim are applied 134

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to civil rights claims. Civil rights litigation involves the vindication or establishing of a "right." That right can be constitutional in origin such as the Bill of Rights, statutorily created such as a Title VII sexual harassment claim, or judicially created such as the right of privacy. Public interest litigation often involves competing interests, for instance, whether a river should be dammed or how resources should be distributed. In some instances, civil rights and public interest litigation goals are at odds. Because of conflicts that may occur between "individual rights" and the "public interest, the line where one stops and the other starts is seldom, if ever, clear. In other terms this problem (issue?) can be explained as the question of "who is the public?" Quite clearly, in a heterogeneous society there are many interests. politics is often explained as the process of Indeed, getting something done in the face of a diversity of interests and pressures. If the political process is so complex, at least partially because of the difficulty of determining the public interest, then it follows that a major difficulty would be even being recognized as a group representing a legitimate public interest. Thus, for example, environmental groups like the Sierra Club and 135

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consumer protection groups like "Nader's Raiders" took decades to become "legitimate. It was a long road to achieve as pointed out in chapter III, the standing to represent the public interest. Even still such groups are only "players" in a complex game.5 Civil rights are by definition, more individual. They are the rights that accrue to people and to a lesser degree, even artificial people. Thus, for example, the 14th Amendment and 42 U.S.C. Section 1983 use the term "person." While many civil rights actions are filed as "class actions, actions on the behalf of a group of "similarly situated individuals," they still require a named "person" as a plaintiff (see, for example, FRCP 23). In this vein, while public interest litigation implies some recognizable common interest that is also recognized as legitimate, albeit perhaps not a dominantly popular one. Arguably, if the interest was the dominate one it would not be in the position of being plaintiff. Civil rights litigation often does not directly involve such popularly legitimate interests. Directly is the operational word here, because obviously there is a legitimate interest in the vindication of a right even for an unpopular group, although even that idea is a relatively recent one. 136

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SYMBOLIC LITIGANTS IN CIVIL RIGHTS LITIGATION An example of the difference between direct and what will be called "symbolic" interests can be seen in the litigation surrounding inmate conditions of confinement. Few would argue that convicted and confined criminals are a popular group. At the least, there is public indifference. In many instances there is active hostility that condones severe neglect if not abuse. The latter is particularly so where individuals convicted of crimes generally accepted as repugnant, i.e., child molesting and abuse, are concerned. Diiulio (1990:3-11) describes the change (his term is metamorphoses) of judicial involvement in corrections from a "slave of the state doctrine" (not a judicial concern) to a "hands off" doctrine (the most egregious violations would be checked) to active judicial involvement in "conditions of confinement" which violate the Eighth Amendment prohibition on "cruel and unusual punishment. Those changes were not so much a recognition of the direct rights of those inmates as a recognition of the old maxim "that as the rights of the least are protected, so are the rights of the many." One predictable result of this is that often civil rights litigation is associated with enforcing the 137

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rights of the "undeserving." Black's (1976:69) observation that "Law is greater in a direction toward less conventionality than toward more conventionality" is apparent here. As Black defines it, culture is the "symbolic aspect of social life, including expressions of what is true, good and beautiful" ( 1976: 61) Culture also includes "conceptions of what is right and wrong, proper and improper" (1976: 61) Hence, civil rights litigants who are "unconventional," i.e., the poor, minorities and criminals, may also be perceived as undeserving of the benefits of the law and subject to sanctions for attempting to utilize the law for what may be seen as improper purposes, i.e., changing the status quo. It follows then, that the attorneys of such plaintiffs may be perceived as assuming unconventionality. ATTORNEY INVOLVEMENT IN CIVIL RIGHTS LITIGATION the mantle of such What Rule 11 and similar state reform has done is to make the filing of civil actions an expensive and potentially dangerous enterprise. As noted, civil rights actions are treated just like tort actions as far as requirements for filing and pleading. The attorney has to 138

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"investigate" the facts, not just rely on the client's veracity. Investigation of facts is frequently difficult in civil rights actions because the defendant often has all the evidence, and won't release it without a court order which cannot be obtained without filing a suit. Further, a question of what is "sufficient investigation" arises, and as far as the defense is concerned, there is never enough as far as sufficient grounds for a suit and always too much when discovery is being attempted (see, for example, Albright v. Upjohn Co., 788 F.2d 1217 [6th Cir. 1986]). One can imagine what a "Rodney King" could prove without a video tape. The problem is compounded because attorneys are ethically obligated to represent their clients "zealously within the bounds of the law" (see, ABA Model Code of Professional Responsibility: Canon 7). In general tort litigation, for example, one of the preeminent (and wealthiest) civil tort and public interest attorneys, James Butler (1994:84) relates "A plaintiffs' attorney may get caught up in a discovery nuclear war. Key documents may be withheld or hidden or destroyed; top executives will lie or dissemble on depositions; every piece of information will be hard won." The point here is not so much that people lie. It is that people protect their interests and often 139

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have different ideas about what 11really occurred. 11 To find the 11facts11 that can support a judicial or jury fact decision is often a long, expensive, and convoluted path. If it were not, there might be less need for litigation. On a more pertinent point, there is little reason to believe that public officials who may have as much at stake will act differently. If that were not so, much of the rational for the existence of the discipline of public administration would not exist. It must be said at this point that the public interest, in general, is more sympathetic to the image of average people destroyed by corporate malfeasance than the plight of obnoxious homeless being arrested for begging or minorities demanding affirmative action.6 Hence, again Black observations about the cultural and stratification status being related to the ability to use the law. It would be easy to blame attorneys and their over-zealous these problems defense of on the unworthy corporations and indifferent government. But in substance, that argument would be that only righteous causes deserve zealous representation and that unrighteous defendants deserve only nominal, if any, defense. That, of course, is the same kind of argument that produced much of the need for zealous and often controversial civil rights 140

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litigation. No one can really definitively, and forever, state what is in the public interest. Arguably, the best that can be done is to "argue" what is in the public interest -what should be a right or what rights in individual circumstances should be vindicated. This, of course, requires a forum. An important aspect of argument is where it will be heard and how. Perhaps an even more important aspect of argument is the power inherent in that forum to resolve a dispute, enforce that resolution, and in a timely manner. It is the courts, particularly the federal courts, that often, because of tradition, statute, or the lack of any other viable remedy, are most often called upon to decide these complex, value-laden, issues. Not surprisingly, the courts often show little more consensus on what is in the public interest or in what should be a right than the rest of a heterogeneous society. They are, however, forced to decide, or --avoid deciding. The Courts and Civil Rights Litigation Because judges are the individuals who ultimately make the decisions concerning sanctions, more time will be spent discussing them. It is, however, far beyond the scope of this text to attempt to define "why" courts decide issues 141

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in a particular manner. Indeed, as noted in chapter II a major reason for taking a behavioral approach to legal reform is the sheer complexity of poss.ible theoretical explanations. In point, the commentary in the arena of judicial decision making is so vast as to be almost beyond compression into even a series of works. continuing controversy in this century question of whether judges "discover" the For example, surrounds the law a legal science perspective, or "make" the law, a legal realist perspective (see in general, Fisher, Horowitz and Reed, 1993; Hall, Wiecek and Finkleman, 1993) Each of these has generated "submovements." "Critical Legal Studies," for example,. grew in part out of legal realism and in part out of Marxian economics (Ungar, 1986). A particular brand of positivism, "original intent theory," has generated much controversy in the last two decades. Often, perhaps wrongfully, this conceptual approach to constitutional interpretation has been categorized as "right wing conservative" (see, for example, Kelman, 1991) Under this somewhat literal approach, the court should consider what the "founding fathers" intended when they created the constitution using the context of the {then) existing social/economic structure {see, for example, Bork, 1990) Still other legal movements like 142

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"law and economics" have stressed the importance of utilitarian kinds of decision making (see, for example, Posner, 1989) Much of the rhetoric and analysis in this direction falls within the rubric of long existing debates concerning "loose constructionists" v. "strict constructionists," "judicial activism" v. "judicial restraint" and the relative roles of state and federal government in federalism. Indeed many, if not all of these terms are interchangeable. Thus, the debates could also be framed in terms of loose constructionists v. judicial restraint or state's rights v. judicial activists. Although much of the controversy surrounds the role and political perceptions of the Supreme Court (for example, O'Brian, 1993; Kairys, 1993; Savage, 1992), implicit in all of these arguments is that all courts, even the lowliest municipal court, exercise some degree of judicial review authority, and hence, policy making power. Carp and Roland (1983), for example, describe the policy making power of federal district courts. The Myth of Conservative v. Liberal Judges Again, as with lawyers, it is easy to put the onus of 143

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abusing sanctions on the shoulders of judges termed "conservative." In the law, however, such terms often have little real utility. For example, Walker (1990) relates in his exhaustive history of the American Civil Liberties Union (ACLU) that "conservative lawyers" comprised a significant portion of the early 1920s ACLU (then the Civil Liberties Bureau) These lawyers joined, and led the Civil Liberties Bureau, because of their "conservative" views of the constitution, in particular of the First Amendment, and in response to repressive government actions during world War I and after (1990:21-22). Conservative and liberal are labels often applied to people or groups who follow, or don't follow, a given socio/economic agenda. Most often people, including judges, elude such categorization in reference to all issues. Further, the term is relative in that its usual intimation is "radical left" or "radical right." Although much comment, scholarly and otherwise, attempts to define the current Rehnquist Court as "radically conservative" (see, for example, Savage, 1992; Kairys, 1993) others hold it is too liberal (Bork, 1990) Still others like Marshall (1992) hold that the modern Supreme courts have, in general, done a fairly good job of representing major interests in society. Chapter V in its review of criminal 144

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procedure will point out that many court decisions defy simple assignment to conservative and liberal camps. Further, appeal court decisions, including those of the Supreme Court, are often not unanimous. A Framework for Analyzing Judicial Conservatism For this text, the term conservative and liberal has a specific meaning, that of views concerning how open access to the courts should be. Directly tied to this are views concerning what role the court should play in social change. This view of conservative and liberal can be diagrammed in a continuum as follows: Liberal -----------------------------------Conservative All cases and disputes Agent of social change Court Openness Court Role Cases well established in law Handle property and contract disputes Herein can be seen an operational point for sanctions practice. As related earlier, there are numerous and often conflicting perceptions about the origin and purpose of the law and the role of the courts. It is the dominate one in a particular judge that influences the decision as to what 145

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is frivolous and groundless, and hence, to grant sanctions and the kind of sanctions. Even though Rule 11 has a provision for creating new causes of action and changing existing law, the same kinds of dynamics would apply. Thus, this text defines (or at least attempts to) the conservative-liberal debate within a behavioral context. Does a particular decision or action operate to open or close the courts to hearing a wide range of matters. Again, the question of 11why11 a judge may be at a particular point on the continuum on a particular issue is problematic. All of science and philosophy has not been able to definitively answer the question of 11why11 for people in general. There is no reason why it can be answered for judges. For example, Carp and Rowland (1983), relate in their study of 27,772 federal district court opinions by 1,000 judges over a 40 year period, when the law is not clear judges fall back on their personal values. Segal and Spaeth (1993) in a similar study of the Supreme Court suggest that when justices make conservative opinions they are just expressing their conservative nature, not interpreting the law. These are not, however, real answers to the why of sanctions. Under such a perspective, judges with liberal values would make liberal decisions. The end product, a 146

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too easy cause and effect, the law becomes a product of nature and/or nurture rather than reasoned discourse. There is, nevertheless, a behavioral dimension to this judicial discretion. At the trial level, there may be a "luck factor" involved in the award of sanctions. Simply, a litigant and lawyer may draw a judge with adverse attitudes toward a particular case. Or, as Kritzer and Zemans (1993) point out, there may be a "local legal culture" which influences the prevalence and severity of sanctions practice (see also, Nelken, 1990) Here, Black's (1976:48) observation that "Law varies directly with integration" would seem to apply. Attorneys not well known or integrated into the local legal culture, or representing clients or causes outside the accepted parameters, would seem to receive the harsher sanctions. One can appeal, but additional problems may arise when an appeal of a sanction is attempted. Appealing Sanctions The problem of differences in judicial perspectives is compounded by the nature of the appeal process. If a trial judge awards a sanction, the award can be appealed. The appellant must show that the judge committed an "abuse of discretion" in making the award. Proving abuse of 147

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discretion is, however, a very difficult burden, usually requiring "clear and convincing evidence." In any event, the appeals process works on a majority basis. Therefore, on a five person appeals panel three could uphold the trial judge and two could strongly support the losing litigant --and even though two appeals court judges think the matter is not frivolous, it becomes legally so. This same scenario works in the case of the denial of sanctions. The denial is appealed and if a simple majority of the court believes sanctions should have been awarded, the case gets remanded back to the trial court for a mandatory sanction. This type of process benefits those with the most resources. In most cases then, the defendant gets two bites at the sanction apple. The absurdity of this situation is one reason why the Task Force on Simplification of the Law of the New York Bar Association recommends that: Appeals from all sanctions should be permitted and sanctions applied only if unanimously affir.med by the appellate tribunal. If any judge believes a position is not improperly advanced, by definition it should be deemed not frivolous" (Givens, 1991:31). The kinds of political and appeals problems outlined above have led Judge Ripple of the United States Court of Appeals for the Seventh Circuit to advocate a "Constitu-148

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tional Exception" for Rule 11. It is his belief that constitutional issues are so complex that they cannot be reviewed in the context of Rule 11. The exception is needed so that the "bench and bar can prevent turning Rule 11 into something it was never intended to be ---a burden on the legitimate vindication of constitutional rights through the judicial process" (Ripple and Saalman, 1988: 790). Teschner (1988:26) is more blunt in his evaluation of judicial behavior in the use of Rule 11. He argues that "under the due process clause, judges have no power, in asserting their rule-making authority, to close their courts to 'frivolous' cases." Further, he observes, "efficiency (referring to docketing consideration) is not a value with constitutional dimensions; indeed, totalitarian governments are the most efficient of all" (Teschner, 1988 :27). Sanctions and Civil Rights It should be clear by now that by its very nature, civil rights litigation is often not well founded in current law, is usually frivolous and groundless to a defendant and not susceptible to prefiling investigation. In short, civil rights and public interest litigation 149

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frequently involves all kinds of activities that legal reform was intended to eliminate (Tobias, 1989; LaFrance, 1988). In that context, many of the problems of civil rights litigation may hinge on the simple point that American law, with its roots in property and contract, does not and can not easily adapt to the problems of deciding ideological differences. Conceptually, some legal reform, particularly the increased focus on sanctions, can be seen as a paradigmatic shift. It can be seen as a movement toward (backward?) a time when the courts are not bothered by problems of values and conflicting ideologies, where a judge can simply look in some great book and say 11 I find no grounds for a complaint here, case dismissed. 11 Yet, unfortunately, a bottom line reality about government is that often, only the force of a judicial order can incite meaningful change (see, for example, Dale and Sannitee, 1993) Criminal Justice and Sanctions The use and abuse of Rule 11 type actions is particularly dangerous in the arena of criminal justice where, inter alia, the intermixture of social control, morality, poverty, hysteria about crime, prison overcrowding, the death penalty, racial and ethnic 150

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discrimination combine in a reflection of the larger society's ills and fears. Taylor (1991) describes how Rule 11 is being abused by government attorneys in politically significant civil rights cases where criminal justice agencies are the defendant. Litigation against criminal justice agencies is difficult enough without attorneys becoming personally responsible for the government's attorney fees should they make a real or alleged error. Going after the attorney is often strategy then litigating a case on an easier litigation its merits. If you claim each and everything that the plaintiff's counsel does violates Rule 11, then you can delay a case for years. That your actions may in fact violate the spirit of the Rule is unimportant because judges have been extremely reluctant to award sanctions against government counsel (Cochran and Vairo, 1988). As Chambers (1992B) relates, government lawyers have even pursued rule sanctions against civil rights plaintiffs after the plaintiff has prevailed against the government. It is not surprising then that civil rights plaintiffs and lawyers have found themselves to be the target of efforts to limit their recoveries and sanction their conduct. In particular, attorneys who undertake civil rights representation for indigent plaintiffs against 151

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government agencies are increasingly finding themselves sanctioned, even driven into personal bankruptcy, by the application of procedural rules originally intended to discourage frivolous tort suits (see for example, Kuntsler, 1991) The behavioral effect of the numerous rulings on sanctions is that civil rights cases are to be treated as no more than a grocery store slip and fall case and that the most dedicated civil rights attorneys are no different than any ambulance chaser. This perception and practice which relegates many civil rights plaintiffs and attorneys to the bottom of stratification and cultural dimensions of law is inconsistent with the express intent of Congress. Civil Rights Litigation and Congress Congress recognized the problem of litigating against the government early on. At the same time that the public was being besieged with the rhetoric of a litigation explosion, Congress was becoming concerned with the government's abuse of litigation. On October 21, 1980 Congress passed Public Law 96-481, the "Equal Access to Justice Act" (EAJA, codified in part as, 5 USC Section 504), which provides for the recovery of attorney fees for indi victuals or small companies forced to defend against 152

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government claims or to litigate against the government in order to enforce rights. In its "Findings and Purpose" the Act states that: Sec. 202. (a) The Congress finds that certain individuals, partnerships, corporations, and labor and other organizations may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights in civil actions and in administrative proceedings. (b) The Congress further finds that because of the greater resources and expertise of the United States the standard for an award of fees against the United States should be different from the standard governing an award against a private litigant, in certain situations. The Act proceeds to specifically state that the U. S. government may not seek attorney fees under the Act from the other party if the government prevails in the action. Such coverage extends to both agency adjudications and court actions (Geer and Reingold, 1988; Hill, 1987; Sullivan v. Hudson, 109 S. Ct 2249 [1989]) More recently, conflicting decisions by the U.S. Supreme Court have clouded the meaning of the EAJA, and in many situations courts seem reluctant to make awards under the Act (Deford, 1992). 153

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Private Attorney Generals Even earlier, in 1976, Congress passed the "Civil Rights Attorney's Fees Awards Act," later codified as 42 USC Section 1988. The Act provides that: In an action or proceeding to enforce a provision of sections 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes, title IX of Public Law 92-318, or any civil action or proceeding, by or on behalf of the United States Internal Revenue Code, of title IV of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs (e mphasis added) Malson (1977) comments that Congress passed the Attorney's Fees Awards Act in response to the Supreme Court's ruling in Alyeska Pipeline Service Co. v. Wilder-ness Society (421 U.S. 240 [1975] ) in which the Court refused to recognize the "common benefit" exception to the American Rule in fee shifting. This common benefit exception revolves around the idea of a "private attorney general," an individual or group which litigates for the general benefit of society or a segment of society and receives attorney fees as an incentive for such litigation. The Congressional Record regarding Titles II and VIII of the Civil Rights Act of 1964 (42 USC Section 2000a-3(b) and 2000e-5 (k)) explains the importance of private attorney 154

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general approaches to civil rights enforcement as follows: In many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in the court (cited by Malson, 1977:433; see also, Derfner 1977, for a review of the Act) Congress has in general been concerned about the cost of litigation where the government is defendant. That concern has been, however, to protect the citizen from the often overwhelming power and resources of government. Civil rights actions under 42 USC Section 1983 are the best examples of litigation to deter government abuse. While many civil rights acts, such as Title VII governing equal employment opportunities, provide a broad range of protection in the private and public sectors, Section 1983 prohibits the violation of any civil right by government entities 11acting under the color of authority.11 This broad law, probably the most utilized civil rights law in the United States, is backed up by 42 USC Section 1988 (ex-plained above) providing for attorneys fees when the plaintiff 11substantially prevails11 on a claim. Defining 155

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the meaning of "prevailing" has generated substantial satellite litigation (Julian, 1992) Expanding and Contracting "Prevailing" Courts originally interpreted the meaning of "prevailing" under Section 1988 and similar fee shifting enactments liberally. They held that plaintiffs are "considered to have prevailed when they vindicate rights" (Maher v. Gagne, 448 U.S. 122, 1980), or "succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit" (Nadeau v. Helgemoe, 581 F.2d 275, 1st Cir. 1978). This liberal interpretation has significantly narrowed as legal reform's impact on civil rights litigation increases. Courts have increasingly restricted the usage of Section 1983 (Burnham and Fayz, 1990; Chen and Fujisaki, 1990; Schwartz, 1990; Schnapper, 1989), expanded the immunity of government agents (Deford, 1992; Olson, 1992; Rudovsky, 1990), allowed state and local governments to collect attorney fees from plaintiffs who file allegedly frivolous actions, and encouraged civil rights defendants to sue civil rights plaintiffs (Chen and Fujisaki, 1990; Olson, 1990; Larsen, 1988) As noted above, awarding attorney fees to the govern-156

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ment is inconsistent with the express intent of Congress as stated in the Equal Access to Justice Act and the Civil Rights Attorney's Fees Act of 1976. The stated purpose of such enactments is to protect the citizen from the power of the Executive and to encourage the vindication of rights. Rule 11 allows the executive and the judicial branches of government to circumvent the intent of Congress. The problems of sanctions did not elude review. Eventually, realization of some of the inequitable effects of the Rule 11 became too apparent to ignore. As a result, a movement to amend Amended Rule 11 eventually gained enough force for change. The Almost Reform of Rule 11 It is problematic whether increased sanctions practice has resulted in a better legal system. As is usual in such questions, the answers must be framed in the context of for whom and for what. It is clear that sanctions practice has had more adverse impacts on civil rights practice than beneficial ones. The arguments surrounding Rule 11 and civil rights litigation can be summarized as follows: Civil rights litigation by its very nature often violates the precepts of Rule 11. There is no real consensus among attorneys, judges, scholars and the general public as to the 157

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role the courts should play in social change. There is uneven application and overdependence on fee shifting. Civil rights statutes and constitutional rights are often ambiguous and must be interpreted. Rule 11 exacerbates conflicts between Congress and the Courts. The behavioral aspect of Rule 11 was pre'dictable; those most unable to suffer the adverse impacts more often did. The Early Movement for Change In July of 1990 the Advisory Committee on Civil Rules with the authorization of the Committee on Rule of Practice and Procedure issued a call for written comments on Rule 11.7 The Advisory's Committee's report disclosed that over a 100 different parties responded with comments and suggestions on Rule 11. At a meeting of the Advisory Committee held on Febuary 22-23, 1991 in New Orleans there was brief commentary on Rule 11. Much of that comment concerned recommendations that more time be given for a "shake down period" on Rule 11. The committee concluded that "in light of the intensity of criticism, the process of possible revision should not be delayed, beyond that which the provisions governing rule changes already dictate" (source, Advisory Committee Interim Report on Rule 158

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11 submitted to the Committee on Rules and Practice, April 91 1991) The amendments to Rule 11 that grew out of the Advisory Committee's research and were extensive and hit at the core of the mandatory nature of Rule 11 and to some of the rule's requirements developed in case interpretation. Inter alia, the proposed amendments: Qualified the inquiry, investigation of facts and change of existing law standards, by making them subject to an "inquiry reasonable under existing circumstances" (section [b)). Requiring a party moving for sanctions to certify that they had noticed the other party of their (Rule 11) concerns and that the other party had failed to voluntarily withdraw and to give reasons why the moving party was unsuccessful (section [c)) Limiting sanctions to that which is "sufficient to deter comparable conduct by someone similarly situated to the person to be sanctioned" (section (c) ) Requiring the court "to recite the conduct or circumstances justifying a sanction" (section [c) ) Requiring a "show cause" hearing for sanctions if the sanction is monetary and further requiring that a show cause order be issued before a voluntary dismissal or settlement of the issue. Limited the power of the court to award sanctions against the actual parties or unrepresented parties. law It is perhaps significant that the Committee(s) retained the mandatory nature of Rule 11 while significantly 159

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describing ethical and procedural limitations on sanctions (source, Notes, Advisory Committee on Civil Rules, Commit tee on Rules of practice and Procedure, 1991). The final proposed Rule 11 changes as published in the June, 1993 edition of the Congressional & Administrative News (June, 1993, No. 4: G157-G158) was quite similar in wording but substantially different in content. Limits the time for an attorney to correct an allegation of Rule 11 violation to 21 days ( [c] [1] [A] [b] ) Changes the mandatory "shall" language to a permissive "may" ( [c] [1] [A] [b] ) Makes a law firm, its partners, associates and employees jointly responsible for violations of Rule 11. Essentially removes represented parties from liability for Rule 11 violations. Removes Discovery violations from Rule 11 sanctions. The proposed Rule was effective December 1, 1993 absent change by Congress of which there was none. These changes may seem laudatory. In point, they seem to address many of the problems inherent in the 1983 version of Rule 11. Upon consideration, however, it appears that the changes will have little effect on the behavior of Rule 11. Simply stated, Rule 11 has always been discretionary. Although the awarding of sanctions was mandatory, the kind 160

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of sanctions was discretionary. 11warn11 an attorney. This Thus, a judge could simply arguably accounts for a substantial portion of the 11unrecorded11 Rule 11 activities (see, Nelken, 1990) Within the context of the Liberal -Conservative conti nuum presented earlier, judges can and will continue to award sanctions of the same type and at the same frequency as they did prior to the 1993 amendments. The Rule does not forbid them to do so! That the now current rule requires them to state reasons for doing so does not nor will not change the 11beliefs11 of judges as to what is frivolous, groundless, or not well grounded in current law. More specifically, there is no reason that judges should change their beliefs as to what is a wellfounded reason for changing existing law. Thus, the downward and punitive behavior of sanctions as described by Black (1976) will not change in civil rights litigation. In pqint, there was only brief note of the possibility of an exception for civil rights cases in the 1990 Advisory Committee record. Cochrane, a professor of law at the University of Mississippi and current director of the Rule 11 Project of the Center for Constitutional Rights, was an early supporter of the 1983 version of Rule 11. He became one of the Rule's strongest critics. He comments that: 161

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The long term consequence of breaking a two-hundred year unwritten compact of respect between the bench and the bar are omnimous. The fact that the Rule turns lawyers against lawyers is enough to warrant condemnation. That it is now used to turn judges against lawyers and lawyers against judges makes it all the more unpalatable ... It is also of no small moment that those 11whose research (or resources) are not unlimited or whose skills in argumentation fall short of the most finely honed are especially vulnerable. These are the single and small firm practitioners, the only available source of representation for those without substantial means. The consequences to millions of Americans and small businesses whose lawyers are on notice that they may not be 11 smart enough11 or not have enough books or computer research facilities in their offices to represent them in federal court are tragic. Statements like 11the generalist acts at his peril, reflects an elitist arrogance which refuses to accept the fact that this segment of the bar know wrongs when it sees it and that history proves it is more than competent to prevail in significant litigation (1991:140). This comment is dispositive of the problem of lowly civil rights litigants attempting to vindicate or establish their rights. Cochran's comment is even more relevant in the context of what the 1993 amendments present as reform. The 21 day 11grace period11 may seem a gift. If a litigant withdraws their contested pleading or other writing than no sanction 162

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can be had. Also changed, however, was the Rule's coverage of discovery abuse. As related earlier, discovery is a major way by which a case is proved. Also amended in 1983 was FRCP 26 which controls civil discovery. The new Rule 26 severely limits the form and scope of discovery --and provides Rule 11 type sanctions for abuse. The standards for determining abuse sound suspiciously like the pre-1993 Rule 11 standards. In more pertinent point, generally a responding party has 30 days to comply with a discovery request. This is longer than the 21 days in which a party has to produce evidence to contest a Rule 11 sanction request. Chapter 5 will present how the behavior of sanctions is reflected in the conduct of criminal procedure. 163

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CHAPTER 4 END NOTES 1. Rule 52. Findings by the Court--states in pertinent part: (a) Effect, In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule. 58; It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in the opinion or memorandum of decision filed by the court. Findings of fact and conclusions of law are unneccessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in subdivision (c) of this rule. Effect, Dec., 1, 1991. 2. The study done by Kritizer and Zemans (1993), the largest to date encompassing 11 federal judicial districts, 4,496 practitioners (3,358 respondents), was not to measure attitudes about Rule 11, but to measure the effect of "local legal culture" on sanctions practice. 3. An as yet unpublished study done by this writer tends to support this view. A survey of 400 members (192 respondents) of the Association of Trial Lawyers of America, a strong pro-plaintiffs group, produced an unexpected result. In general, the respondents saw sanctions in positive terms. Comments from the respondents indicate that many of the practitioners saw sanctions as a way to deter frivolous defenses, as just another litigation tool. There was again strong comment about some possible chilling effects of the rule. 4. Even in the rare case where a government lawyer is found guilty of a Rule 11 violation, it is likely that the sanction will be minimal and far less than that received by a private lawyer for the same conduct. This disparity is evident when two cases are compared. In Nasco Inc o v o Calcasieu Television, (894 F.2d 696 [5th Cir. 1990]), pursuant to Rule 11, plaintiffs were ordered to pay $996,644.45 in attorney fees and $66,286.65 in appellate sanctions. The district court further reprimanded one attorney, ordered the six month suspension of one attorney, 164

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a three year suspension for another, and declared another attorney ineligible for practice in the district for five years. In the same Circuit, in Henderson v. Department of Public Safety and Corrections, (901 F.2d 1288 [5th Cir. 1990]), a Louisiana Assistant Attorney General representing the defendant state in a civil rights action was ordered to pay $250.00 in Rule 11 sanctions for filing numerous motions to delay proceedings and harass the civil rights plaintiff. 5. This entire area of representing the "public interest" is confusing. Often it takes an accountant and a lawyer to trace the actual funding of a particular group to get an idea of whose interests are actually being represented. The May, 1994 edition of Consumer Reports, for example, describes how many "grass roots" campaigns entitled under Citizens-for-this and Committees-for-that are in fact slick public relations campaigns. See "Public-Interest Pretenders, p. 316-320. 6. Butler (1994) describes his suit against General Motors Corporation as a discovery nightmare in which only obsessive perseverance combined with filling in the gaps apparent from "missing documents" led to a successful result. In this case (Mosely v. General Motors, 90V6276 [State Ct., Fulton Ga.] Butler asked for 100 million in punitive damages for GMC's designing light trucks with fuel tanks on the side outside the frame. The jury awarded $105 million. Contrast this with Freeman's (1990) observations about litigating antidiscrimination law. 7. As observed in chapter III, Congress amended the 1934 Rules Enabling Act to require a period of open public comment on rule creation and amendment. 165

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CHAPTER 5 THE INTERSECTIONS OF REFORM Chapter 3 presented the rise of Federal Rule of Civil Procedure 11 (Rule 11) and several reasons for that rise. Chapter 4 related some of the adverse impacts of that rule on a particular area of litigation, civil rights. Chapter 4 concluded with some observations about further amendments to Rule 11 that were recently enacted and a suggestion that those amendments, intended to ease some of the harsher impacts of the previous amendments; would be inadequate because of the behavioral aspects of the law, particularly in the dimensions of Black's (1976) stratification and culture. This chapter develops the thesis that reforms in criminal procedure have paralleled reforms in civil procedure. Of particular note, the reforms in criminal procedure have had an even more (but predictable) impact on marginalized individuals and groups than the reforms in civil procedure. In a more important dimension, civil and criminal reforms meet and combine to produce an even more disparate impact. After a fairly brief description of the evolution of American criminal procedure 166

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to the period of the Rehnquist Court this chapter concentrates on federal habeas corpus and the rhetoric surrounding attempts by the three branches of the federal government to limit such review. It concludes with observations concerning the utilization of sanctions by government actors to discourage both criminal appeals (via habeas corpus) and attempts to remedy state law breaking. While this chapter is lengthy and inclusive the past and current history of the case law presented will aid in understanding the ebb and flow of American criminal procedure. Throughout this chapter and the concluding chapter Intersections will be inserted. These intersections are intended as an aid to understanding how various themes of this text, civil sanctions, limitations on habeas corpus and the behavior of law merge to become conceptual and behavioral shifts, intended or otherwise, in the American legal system. These intersections will also summarize and describe how conceptual and behavioral shifts in ostensively unrelated areas of law and procedure merge to produce disproportionately adverse impacts on the disadvantaged. 167

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Criminal Procedure 1786-1986 As related in chapter 1, criminal procedure is unique juxtaposition of its elements. the American system of largely because of the Perhaps the most unique behavioral aspect of American criminal procedure arises from its predominately local flavor. Criminal justice activities take place primarily at the state and local level. 1 This local and regional flavor in American criminal justice policy and practice lends itself to wide differences of opinion (and practice) as to what are legitimate enforcement, prosecution and penological objectives. For the first 170 odd years of this nation, perhaps the most critical aspect of Federal intervention into American criminal procedure was that there was so little. Federal judicial review of state criminal actions was dominated by a policy of deference to state power in that arena. Indeed, as related in chapter 4, there was, in general, a deference to state power in employment and economic matters until the 1930's (for example, Mensch, 1990, Feinman and Gabel, 1990) and until the 1950's in civil rights (for example, Freeman, 1990). While there were well developed procedural guidelines applied to the federal enforcement of federal crimes by the 168

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1920s, these restrictions, such as the exclusionary rule, did not apply to the states (see, for example, Weeks v. U.S., 232 U.S. 383 [1914]; Silverthorne Lumber Co. v. U.S .. 277 U.S. 438 [1928]). In the few instances where the Supreme Court did intervene in state criminal activities, the facts were so egregious as to literally demand federal action. Thus, in Powell v. Alabama (287 U.S. 45 [1932]) the Supreme Court set a standard of "Fundamental Fairness" in criminal procedure. But there the court limited itself to circumstances which violated "fundamental principles of liberty and justice" (at 49) Fundamental fairness appears to be a somewhat nebulous standard to guide law enforcement policy and practice as well as state actions. In Brown v. Mississippi (297 U.S. 278 [1936]) the Supreme Court went a step further and ruled that "coerced (tortured) confessions" were "inherently unreliable." It is important to note that the issue of cruelty was not the key to this finding.2 Finally, in Rochin v. California (342 U.S. 165 (1952]) the Court recognized that some police behavior "shocked the conscience" and, as intimated in Brown, also a violated "due process." There were, of course, numerous other Supreme Court decisions on criminal procedure in the interim. But, again in general, those rulings deferred to state courts and 169

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state law in the criminal arena. There was, however, a continuing theme of dissent in those cases, perhaps anticipating the due process revolution (for a history of this period and comment in general see Maclin, 1993) .3 The "Due Process" Revolution Mapp v. Ohio (367 U.S. 643 (1961]) is often seen as the seminal case in the "due process revolution." The revolution had, however, as most do, much longer and deeper roots than are commonly appreciated. In Wolf v. Colorado (338 U.S. 25 (1949]), for example, the Supreme Court gave strong warning to the states that a remedy for law enforcement "law breaking" must be fashioned. While the Court in Wolf specifically stated that the exclusionary rule was not binding on the states, the Court further explained that some remedy for "unreasonable" searches and seizures by state officers in violation of the 4th Amendment must be provided. This remedy could take the form of exclusion, some kind of discipline against officers, or even a law suit against an agency. Thus, 11 years before Mapp a majority of the Court was already making a conceptual shift towards a more total integration of the Bill of Rights into the 14th Amendment. This conceptual shift is more than just a positivist 170

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"rediscovery" of the law. It is indicative of a paradigmatic shift in the role of the courts in a complex society. In this sense, "legal realism" which had reared its head in the 1930s in the civil arena of law was beginning to find expression in the criminal arena. Simply put, the Court was finding that persuasion was not enough. Intersection: Wolf can be construed as much more than a criminal procedure case. It can be seen as a general warning to the states that the extreme inter and intrastate variances in citizen rights were inconsistent with the 14th Amendment and that if state remedial action was not taken, the Supreme Court would become more involved. Hence 1949 Wolf and 1952 Rochin predicted the 1954 Brown v. Board of Education cases Brown in turn can be seen as a direct conduit to the criminal due process revolution. From Mapp to Katz The facts of Mapp are classic in their example. Officers looking for a "bomber" entered a home against the protest of the owner (a supposed warrant mysteriously disappeared) and in searching through a trunk in an attic find material deemed to be "pornographic." The Ohio Supreme Court affirmed a subsequent conviction of the resident for possession of pornography. The U.S. Supreme Court reversed and ruled that the exclusionary rule, 171

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requiring valid warrant or a valid exception now applied to the states. 4 The road to and through the rest of the due process revolution was a short and quick one and too well known to expend much time upon in this kind of text. Malloy v. Hogan, 1964 (317 U.S. 1 -5th Amendment right against selfincrimination, Gideon v. Wainright, 1963 (372 U.S. 335 -6th Amendment right to counsel), Pointer v. Texas 1965 (380 U.S. 400 -6th Amendment right to confront witnesses), Washington v. Texas 1967 (388 U.S. 14 -6th Amendment right to compulsory process for witnesses), Klop:fer v. North Carolina, 1967 (386 U.S. 213 6th Amendment right to speedy trial), Duncan v. Louisiana 1968 (391 U.S. 145 -6th amendment right to jury trial) are but a few of the landmark examples of cases decided by the U.S. Supreme Court applying the criminal procedure protection of the Bill of Rights to state criminal defendants directly or via the vehicle of the 14th Amendment due process clause (see, in general, Samaha, 1993:42-96). It is important to note here that many of these landmark cases occurred not through the process of direct appeal but through habeas corpus. At the same time, while the Court was dealing with the issues involved in selectively incorporating the Bill of Rights for application in state cases, the Court was 172

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involved in interpreting and enforcing its own .decisions. Probably no decision of the Court, other than the abortion decision in Roe v. Wade, has had more media play and controversy surrounding it than Miranda v. Arizona (384 U.S. 436 [1966]). That decision, however, is problematic in both its impact and importance. All Miranda did was require that suspects be advised of the rights that had been determined to apply to them. It should be remembered that prior to the "landmark" decisions like Malloy and Gideon (as well as the others) many states had already afforded such protection either through statute, common practice, or their own Supreme Courts interpreting the United States or individual state constitutions. A much more important interpretive (as opposed to rulemaking in the "do not go beyond" sense) case is the 1967 Katz v. U.S (389 U.S. 347) decision. While the previous "due process revolution" cases were certainly indicative of the paradigmatic shift in federalism, Katz went a long step further. Katz was symbolic of a paradigmatic redefinition of the relationship between people and state. In Katz, a bookmaker (taker of gambling wagers) was using a public telephone booth to carry out his business. The booth had been "bugged" without a warrant and the information obtained from that bug was used to 173

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obtain a federal gambling conviction. The Court ruled that the 4th Amendment protected "reasonable expectations of privacy, not just places, and reversed the conviction. 5 Within Katz is the classic example of the Court "creating" a civil right in one arena and then applying it in another. In the 1965 decision of Griswald v. Connec ticut (381 U.S. 479) the Court struck down a penal statute which banned the use of contraceptives and the giving of any advice, such devices. including advice by medical doctors, to use There the Court noted that while the Bill of Rights did not specifically mention the "right of privacy," such a right was inherent in a "penumbra" necessary to carry out the rest of the Constitution. Further, the Ninth Amendment which provides that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" gives specific impetus to such a right.6 The Symbolism of Katz The ruling in Katz represents the height of the due process revolution. This is not so much because of its practical criminal procedure implications but because of its symbolic representation. Almost all criminal procedure texts spend a substantial portion of time 174

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discussing judicial "balancing." That balancing of the law of criminal procedure is inevitably discussed in terms of an equation of individual rights v. government power. Lost, particularly these days, is the old equation of federalism in criminal justice (more will be discussed on this later) That would seem to represent a significant paradigmatic shift. More specifically, the idea that the federal courts can "discover" in the positivistic sense, or "create" in the legal realism sense, "new" interpretations of that balance between individual and governmental rights brings about (not new) problems in determining what influences those interpretations. Black (1976:86-87) states "During a war the state tends to centralize, and this is true of democratic as well as autocratic regimes ... And during war law increases." Black seems to have predicted the very fast decline of the due process revolution. Intersection: The real revolution in law was not so much in substance but in process; a process that allowed more access to the courts. As federal courts expanded review by reducing barriers such as ripeness, standing, mootness and deference, it was inevitable that the most obvious and egregious abuses of government would come to light and be rejected as violative of 14th Amendment incorporation standards. 175

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The Post-Modern Era There is no clear point where it can be said that the due process revolution stopped and the post-modern era started. In the context of this writing the post-modern era is described as the cumulative effect of a series of Supreme Court decisions which resulted in a shift from the symbolic to the pragmatic. The pragmatic can be defined as the perspective that individual rights must succumb to organizational interests, group rights and the majoritarian political process. As related above, most criminal procedure texts dedicate a substantial portion of their writing to discussing and analyzing the concept of "balancing of interests." In the most symbolic dimension, these interests are the classic ones of individual liberty v. the power of the state. In point, the classic case book method of legal study and analysis lends itself well to at least the form if not the substance of the balancing of powers and interests. 7 A problem occurs when the competing interests being analyzed shift from the symbolic individual and government to more particularized and pragmatic specific individual and specific governmental policy. There, many more interests come into play and deference to government 176

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actions becomes more likely. Judicial decision making becomes more micro-choosing than macro-balancing. The result is an emphasis on the immediate, pragmatic, and operational rather than the long term and symbolic. Of course, that is what many legal realists have argued that judges did all along. At this more pragmatic and operational level the interests being balanced in criminal procedure can be described as follows: 1. process, Efficiency particularly Interests: Providing correct due in ensuring that the proper fact foundation exists for governmental intrusions, is often more difficult and takes more time than ignoring rules. 2. Value Interests: It is often perceived that there is innerent conflict in the value of public safety and the value of due process. 3. Organizational Interests: Criminal justice organizations and individual actors, from enforcement through corrections, have their own organizational and personal interests. 4. Political Interests: Any truly heterogeneous society has a complex weave of competing economic and social interests which are susceptible to distortion and manipulation. 177

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The Current Status of Balancing The dominant characteristic of criminal procedure in the post-modern era is judicial decision making that emphasizes expediency and deference to criminal justice organizational interests. This post-modern law of criminal procedure, often guised in the rhetoric of the expediencies of the "war on crime and drugs," appears to overwhelmingly balance the scales in favor of what is politically popular. It supports, and even encourages, a perception that criminal procedure involves only a series of ritualistic steps which can be surmounted with a series of simple, almost meaningless incantations. As will be more fully explained later, these ritualistic incantations involve: PRETEXT (I don't have a legal reason for what I did, but how does this sound?) ILLUSION (Really, I just asked him if I could search and he said yes, he was free to say no); SLEIGHT OF HAND (I was looking for one thing when I happened to find another) Herein lays the quandary of post-modern criminal procedure. Current law appears to encourage deceit if not outright lying about the true facts of a situation. To understand this point it will be helpful to examine the evolution of current criminal procedure law. This will be 178

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done in the context of the above allusion to 11incantatiOnS. 118 Pretext In U.S. v. Robinson (414 U.S. 218 [1973]) Justice Rehnquist writing for the Court (with strong dissent by Justices Marshall, Douglas and pretextual arrest and search. Brennan) legitimized Officer Jenks of the Washington, D.C. police suspected that Robinson was a drug dealer but could find no legal reason to search him. Investigation by officer Jenks did disclose that Robinson's drivers license was revoked. Jenks then waited until he observed Robinson driving and stopped and arrested him for traffic charges. At that time Jenks performed a 11Search incident to arrest 11 and found heroin inside a 11 crumpled cigarette package. 11 Reversing the Court of Appeals which had overturned Robinson's conviction for a drug offense, the Court held that a search of a person in custodial arrest is on its face reasonable. This is so, even when the officer had no fear that he was in any danger and the jail officials would have done a more detailed strip search. The dissenting justices' objections to 11pretextual arrests11 were not even considered in the majority opinion. 179

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Expanding Pretext Arguably, when there is a specific individual under investigation, searching records to find "probable cause" for an arrest could be considered good "creative" police work. In Schneckloth v. Bustamante (412 U.S. 218 [1973]), however, the Court displayed its willingness to expand from legitimizing pretextual arrests to legitimizing pretextual stops and pretextual searches. Bustamante involved a stop of a vehicle "because it had a broken headlamp and no license plate lamp." Little was said as to what influence the presence of six males, some being obvious minorities, had on the decision to stop. From the point of the stop to the arrest of Bustamante grows a convoluted path. The driver, a Joe Gonzales, had no driver's license. A Joe Alcala had a driver's license and explained that the car was his brother's. At that point the police had several options. Issue a ticket to Gonzales for driving without a license or even take him into custodial arrest because he had no identification while operating a motor vehicle. Or, they could have ticketed Alcala for allowing an unlicensed driver to operate a vehicle that he had (arguably) legal control over. The officers (several more had arrived) chose to ask if they could search the vehicle. Without 180

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saying what they were searching for, the officers searched even the locked trunk and the glove compartment with the "assistance" of Alcala. Beneath the rear seat were found three crumpled checks which had been stolen from a car wash and which ultimately were tied to Bustamante and subsequently led to his conviction. The Court simply found that the search was reasonable because it was voluntary, that there was no coercion and that a failure to advise anyone that they could object to the search was unimportant as there was no coercion. Closing Other Doors Arguably, Bustamante could not have objected anyway because he would have had no standing to object since he did not have a possessory interest in the vehicle. Justice Rehnquist writing for the Court resolved this issue five years later in Rakas v. Illinois (439 U.S. 128 [1978]) finding that to make objections about illegal searches one had to have a protected interest. Thus, when officers stopped and searched a vehicle suspected to be involved in an armed robbery, the passengers in that vehicle had no legal grounds to object to that search. 181

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Evolving the Not So Modern Post-Modern Law By the late 1970s then, the balance of criminal procedure law was already heavily weighted in favor of the state. Even the most outlandish explanations for a particular act would be accepted. Hence, in U.S. v. Portillo (633 F. 2d 1313 [1980]) a case predicting the future law of the nation, the 9th Circuit failed to question an officer's explanation that he was inside the trunk of a car because he was going to "fix" a broken taillamp. The officer stated he had accidentally "touched" a bag and from that touch felt a gun. The seizure of the gun was legitimate. The officer was legally in the trunk and his "plain touch" was legally analogous to "plain view." Thus, by 1980, virtually any reason would suffice to stop someone. If an overtly illegal search was done, the evidence could still be used as long as the person with the privacy interest was not prosecuted.9 Illusion As noted above, over 30 years ago in Bustamante, the Court found a standard for search consent based on a lack of coercion. Quite simply, consent was voluntary if circumstances did not exist indicating the person felt 182

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compelled to consent. There was no obligation to advise the person that they had a right to refuse. In U.S. v. Mendenhall (446 U.S. 554 (1980]) the Supreme Court went a step further. Mendenhall was stopped (in 1976) at the Detroit Metropolitan Airport by Drug Enforcement Administration (DEA) agents because she was engaging in 11conduct11 which they felt was 11characteristic11 of drug couriers. The agents identified themselves as federal officers. Ms. Mendenhall produced a driver's license to identify herself. Her ticket did not match the name. When asked why, her response was, 11she just felt like using that name." The agents related that they then identified themselves as 11federal narcotics agents," at which time Ms. Mendenhall became virtually incoherent. The agents then related that they 11requested11 that she come to their office. At the office Ms. Mendenhall reportedly was asked for permission to be searched, yet advised that she could refuse. Reportedly she responded in the affirmative. She was then asked to remove her clothing (by a female officer) She reportedly consented, removing some clothing and then took two bags containing drugs from her clothing, handing them to the officers. She was then arrested. The Court found that there was no indication of coercion, ergo, the consent was voluntary. 183

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A Practical Redefinition of the 4th Amendment The Court in Florida v. Royer (460 U.S. 491 [1983]) held that under similar stop circumstances, keeping hold of the subject' s baggage, accusing the person of carrying narcotics, and confining him in a "large storage closet" transformed a contact into an arrest because a person could reasonably believe that they were not free to leave. There was, however, a fairly rapid retreat from this position which was deemed by law enforcement interests to be unduly burdensome given the realities of massive drug smuggling via commercial air transport. In U.S. v. Sokolow (109 s. Ct. i581 [1989]) officers, following a "drug courier profile," physically restrained Sokolow from leaving the airport. The officers then took Sokolow and his companion to their office where they had a dog "sniff" the luggage. The dog indicated drugs in one bag and Sokolow was arrested. He refused to consent to a search of the bag so a warrant was obtained. No drugs were found in the bag, but items indicating drug activity were. The dog then "resniffed" the luggage and indicated drugs in another bag. It was too late (9:30PM) to obtain a warrant so Sokolow was released but his luggage was held. A later warrant to search the bag resulted in finding drugs and a 184

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subsequent conviction. In reversing the Circuit Courts exclusion of the evidence, Justice Rehnquist explained that the investigative "stop" was justified under the "totality of circumstances" test set out by the court in Illinois v. Gates (462 U.S. 213 [1983]). That test rejects "mechanistic" formulas; hence, the mere fact that the initial contact with, and subsequent physical seizure of, Sokolow was based on a drug courier profile does not reduce its reasonableness as long as a "trained" agent makes the decision and can articulate the facts. Beyond Suspicion However, such profiles create a burden. An officer must spend substantial time watching people and even in getting ticket agents to "report" who pays for tickets in cash and fail to check-in luggage. This all takes time and severely limits the number of people that officers can "stop and investigate." The Court recognized this burden on law enforcement and the exigencies of the war on drugs with its ruling in Florida v. Bostick (111 S. Ct. 2382 [1991] ) Here the Florida Supreme Court found that the practice of plainclothes drug agents wearing insignia jackets and visible weapons approaching people on buses (called "working the buses") without any articulable 185

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suspicion and asking to search them was "per se" unreasonable and violated the 4th Amendment. The Florida Supreme Court stated that it had a problem with the facts. Bostick stated he never gave consent. However, since the trial court had made a "fact finding" that Bostick had consented, the Florida Supreme Court could not reverse on that point. The same held true for the decision to search Bostick after his ticket and identification all matched. What the Court did have a problem with was the vision of armed agents of government stopping and searching at random. The U.S. Supreme Court showed more restraint if less eloquence in reversing the Florida Supreme Court. As the Court stated: This Court, as the dissent correctly observes, is not empowered to suspend constitutional guarantees so that the Government may more effectively wage a "war on drugs." If that war is to be fought, those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime. By this same token, this Court is not empowered to forbid law enforcement practices simply because it considers them distasteful (at 2387) With this clear statement of its stance, the Court ruled that since the officers had no suspicions, the suspicions could not be unreasonable, ergo, the contact was outside the 4th Amendment and not protected. Further, 186

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since Bostick consented to the search and was free to ignore the officers, he could not object later after drugs were found. 10 Sleight-of-Hand Cases like Bostick and Sokolow presented a true dilemma for law enforcement. The Court allowed suspicionless and profile stops and investigatory detainment but still required a warrant if there was a refusal to allow a search. In addition, a further frustrating requirement remained. If a frisk disclosed something that might be drugs, or there was a locked container involved, it could not just be searched and seized. In California v. Acevedo (111 S.Ct. 1982 [1991]) it was recognized that the Court's previous line of cases requiring a search warrant for a locked container in a vehicle were out-of-line with a mobile society. Ergo, if there was probable cause to obtain a search warrant for a vehicle or a locked container in a vehicle, then one should not be forced to waste time obtaining a warrant to search that vehicle or locked container in the vehicle. Of course, the definition of a motor vehicle is quite broad. As the Court noted some years before in California 187

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v. Carney (471 U.S. 386 [1985]) the issue is one of mobility, not of a reasonable expectation of privacy. Thus, Carney's motorhome was not a home; it was a vehicle and the DEA could treat it as such for the purposes of a warrantless search. That the California Supreme Court felt that a self-contained motorhome should be treated as a home for warrant purposes was irrelevant. Justices Stevens, Brennan and Marshall in their Carney dissent wondered what had happened to the idea expressed in Katz v. U.S. (389 U.S. 347 [1967]) that the 4th Amendment protected people and their "reasonable expectation of privacy" not just the standing walls of a home. The Final Step There was still the problem of the people who carried contraband with impunity. They did so because they knew they were protected by a host of legal technicalities that kept an officer first from stopping them and secondly from searching for anything more than a weapon. The Court rose to the level of this challenge in Minnesota v. Dickerson (113 S.Ct. 2130 [1993]). The Minnesota Supreme Court had disallowed evidence as the fruit of an illegal search when an officer who "patted down" Dickerson for a weapon found instead rock cocaine. Dickerson had left a place known for 188

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cocaine traffic. The officer for his own safety was checking for a weapon. He found no weapons but felt a small lump in a front pocket and suspected it was rock cocaine. The officer retrieved it and arrested the suspect. The U.S. Supreme Court sustained the Minnessota Court but managed to expand the "plain touch doctrine." The U.S. Supreme Court noted that when the officer "manipulated11 the rock cocaine by moving it around and squeezing it, that went further than a search for weapons or an obviously contraband item. The Court, however, went on to note that if the officer had merely felt (not manipulated) the item and then based on the "totality of circumstances" of location, behavior and reason for stop "detained11 the person while a warrant was obtained there would have been adequate probable cause. As such, the Court reasoned, since there was enough evidence for a warrant, no purpose would be served by requiring the officer to obtain one. There is a 11plain view" exception to the 4th Amendment, surely a 11plain touch" exception is also warranted. This was, after all, not without precedent. Thirteen years earlier, the Ninth Circuit had recognized such an exception in u.s. Portillo (633 F.2d 1313 [1980)). There, when an officer fixing a car's taillamp happened to touch a gun it was 189

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found to be in "plain touch. Most assuredly officers would not abuse this authority since the Court had so well defined the limits of an officer's authority in u.s. v. Sokolow and Florida v. Bostick.11 There Intersection: In many instances criminal procedure rulings appear to be "recipes" for how to fabricate passible probable cause. Once these fabrications are accepted as truth in a criminal cases, it becomes much more difficult to bring a criminal appeal and even a civil action to constrain such behavior in the future. The Question of Appeal is a purpose for the somewhat cynical presentation of post -modern criminal procedure given above. Quite simply, such case law breeds cynicism in those individuals charged with law enforcement. Mensch (1990:13) states that "(t)he most corrosive message of legal history is the message of contingency. Within current criminal procedure the message being sent is that "facts" are subjective, that contingency justifies the creation and acceptance of any reasonable (or not so reasonable) explanation as to why something was done or not done. This, at the least, is a significant divergence from the previous court standard for scrutinizing governmental 190

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conduct which impinges on fundamental rights. It is not that there are no judicial voices raised in protest. There are. But, in the long process of ultimate appeal, those voices may be effectively silenced. Thus, a trial judge excludes evidence or dismisses a case because of 11 shocking police conduct 11 only to be overturned on appeal. Even when the highest court of a state finds some law enforcement activity to violate some right, justices may find their attempt (as described above) to protect or expand individual interests reversed in the name of federal contingency. That this, as mentioned in chapter II, does damage to the concept of deference to state actions and rhetoric of reducing judicial activism in the Supreme Court is often lost. There is, as Kairys (1993:167) states, 11conventional wisdom (that) constitutional protection of the rights of criminal defendants began and went too far in the 1960s.11 Kairy, however, further relates 11But now these rights are more often seen as a source of danger than protection" (1993:167). In this vein, one cannot criticize the current courts for attempting to undue what may be seen as dangerous precedents began by judicial activists in the 60s. It would seem, though, that the current courts could be more candid about what is and is not judicial activism 191

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where they are concerned. The law changes, and often whether that change is good or bad is problematic. But the behavior of the law does not change. Quite simply, the effect of post-modern criminal procedure, as Gordon (1990) relates, is to accentuate and legitimize a criminal justice policy of "capture, confine and observe." That effect, like the policies and practices of the past, has a disproportionate, adverse impact on the urban poor, and hence, people of color, people that, as Black notes, are at the bottom of the stratification and culture dimensions of law. Limiting Appeals A perhaps more important side effect of post-modern criminal procedure is that it is more difficult to obtain meaningful criminal appeals. The "totality of circumstances test" utilized by contemporary courts in almost all criminal procedure determinations is so vague that it is rare for a particular set of "facts" not to survive the test. Once evidence, physical or testimonial, has been admitted, then often the crimi,nal conviction becomes a foregone conclusion. There is then little ground for an appeal. That the evidence may have been obtained under doubtful circumstances, circumstances which may have been 192

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discriminatory in origin, is now for the criminal case usually irrelevant. That a particular defendant may in fact have grounds for a civil rights action stemming from violations that occurred in the obtaining of that evidence is, of course, still there. But, as will be discussed later in this chapter, it is often not practical to pursue such actions from inside a prison. Criminal Conviction Criminal conviction occurs by trial or by guilty plea. The latter is by far the most common, accounting for the vast majority of convictions. In most jurisdictions, including federal, guilty pleas account for over 90% and as much as 98% of convictions (Stitt and Chaires, 1993). There has been substantial litigation and scholarly comment surrounding guilty pleas, usually about the "plea bargaining" involved in such pleas (for example, Worden, 1990; Green, 1988; Kipnis, 1976; Rosett and Cressey, 1976; for historical context see, Alschuler, 1979). An extensive discussion of the debate surrounding such pleas would serve no useful purpose in this text. It is sufficient to say that the arguments center around the following: Criticism that plea negotiation allows criminals to escape full punishment. 193

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* Criticism that plea bargaining is unevenly applied and has a disparate impact on minorities. Support for a utilitarian perspective that negotiated pleas are the only practical way to handle the vast number of criminal cases. Support from a fairness perspective that holds that since guilt or innocence is seldom the real issue in criminal cases, negotiating the punishment in each individual cases operates to "serve justice." In any entering of a plea of guilty usually operates as a waiver of any claims that a defendant may have as to the legitimacy of the government's case, i.e., a suppression claim. "Usualiy" is the operational .word because a defendant may plead guilty and reserve the right to appeal a previous ruling of the court. Such a circumstance might occur if the court made an evidentiary ruling that the defendant knew would operate to ensure a jury conviction and the defendant also thought that the chances of winning that point on appeal after trial were marginal. It is the obligation of the court to ensure that all guilty pleas are "knowing, voluntary and intelligent" (see, for example, Federal Rule of Criminal Procedure 11) The 194

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Supreme Court has, however, ruled that it is not coercive to threaten a defendant with the seeking of a mandatory life sentence if no plea is made (Bordenkircher v. Hayes, 434 U.S. 357 [1978]) and that defendants, in order to avoid the possibility of a harsher sentence, may plead guilty even though they maintain their innocence (North Carolina v. Alford, 400 U.S. 25 [1970]). The point here is that a plea means there is no trial and if there is no trial there is no direct appeal. Direct Appeal For a direct appeal to exist there must be a controversy that has been decided in court. Direct appeal involves asking an appeals court to rule on the legality of a particular judicial decision occurring at the trial level, or maintaining that somehow the pretrial or trial process violated some fundamental right, such as Sixth Amendment effective assistance of counsel (see for example, Spangenberg, 1989) or prosecutorial misconduct which resulted in a due process violation (see for example, Steinglass, 1993). It is important to note that objections to these kinds of occurances must generally have been made during the trial and a ruling of the trial court must have been entered before an appeal can be made, otherwise a 195

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defendant will have to first seek post-conviction relief. The Supreme Court held in Ross v. Moffit (417 U.S. 600 [1974]) that there is no constitutional right to a criminal appeal. When, however, a state provides a right to appeal (as all do, including the federal government) the state must provide indigent defendants counsel for state level appeals. In states with intermediate appeals courts, the right usually stops at that intermediate court. There is generally no right, absent a state appeal to the state Supreme Court. created one, for an Of course, even if there is a state created right to an appeal to a state Supreme Court, usually such courts are not compelled to hear that appeal. They may simply deny certiorari (review).. It follows then that if there is no legal obligation for a state to fund an appeal for an indigent defendant beyond the intermediate state court of appeals, there is no obligation for a state to fund an appeal into the federal courts. It should be noted that in many instances, separate rules apply for those sentenced to life imprisonment without possibility of parole or death.12 A final decision of the state's highest court, denial of certiorari being considered a final review, can then be appealed directly to the U.S. Supreme Court, assuming there are constitutional issues. That Court can choose to deny 196

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certiorari, as it does in the majority of cases. Post-Conviction Relief That an individual has pled guilty does not necessarily end the process of criminal app-eal. There is an entire set of procedures that operate under the general title of "post-conviction relief" which come into play. In the first place, there is a "critical stage" of sentencing in which the defendant is entitled to effective assistance of counsel. If the defendant is dissatisfied with the sentence, for example, claiming it violates a plea bargain, a direct appeal may be available (see, Santobello v. New York, 404 U.S. 257 [1971]). Most often, the defendant will attempt to withdraw the plea in a post-conviction motion. In most instances, the plea will be denied and the sentence will be carried out. 13 Attempts at post-conviction relief occur under three distinct sets of circumstances. Where there has been a direct appeal and the defendant wishes to bring up new issues for appeal. Where there is a claim that the sentence is illegal, for example, beyond statutory limits. Where changes in the law or newly discovered 197

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evidence may give grounds for a new trial or a new sentence. In theory, post-conviction relief is simple. Federal law and the law of most states provide that an inmate may motion the trial court for hearing under post-conviction criminal procedure rules based on one or more of the above grounds.14 The court hears the motion, makes a ruling and that ruling is appealable. Upon exhausting state appeals, the defendant can proceed into the federal courts. In practice, post-conviction relief is complex and discretionary. Courts do not have to provide full hearings on such motions and often summarily deny them. In the vast majority of instances, there is no provision for assistance of counsel in post-conviction relief or appeal from a denial. Thus, such motions and appeals are usually filed on a pro se basis by inmates with limited or virtually nonexistent legal skills. Indeed, it was the recognition of these difficulties that began the line of cases establishing a right to inmate mutual legal help and access to the courts (see, for example, Johnson v. Avery, 393 U.S. 4 8 3 [ 19 6 9] ) 15 The difficulties and complexities of both direct appeal and obtaining post-conviction relief are compounded by wide variations in the ability and resources of defense 198

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counsel. In point, public defenders, who carry the vast bulk of indigent criminal defense, are .usually very experienced and dedicated. Their case load, however, often is so heavy that they cannot give adequate, let alone zealous, attention to every case which is deserving of it. Dolby (1992) notes that case overload for public defenders creates serious ethical problems. As she states, "a public defender should not accept a case if he or she cannot provide quality representation" (1992:43). Refusal, however, can result in being fired or in a judge refusing to appoint that counsel to cases. In instances where public funds are inadequate or overwhelmed, draconian restrictions have been placed on public defender access. For example, Arango (1992) relates that when the salaried public defenders in Tennessee were overwhelmed, General Sessions (misdemeanor) judges ordered private counsel to take-up representation. The assumption was that appointed counsel would be paid from that state's Indigent Defense System fund ((5.8 million) which came out of the Supreme Court budget. That fund was already near exhaustion and the Tennessee Supreme Court ordered all indigent defender fees cut from $30.00 per hour for incourt work and $20.00 for out of court work to $7.50 and $5.00 respectively. This resulted in an uproar and the 199

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restoration of the original fee rate. The lack of money forced some courts to order members of the private bar to represent indigent defendants for no fee. These kinds of horror stories are not. uncommon and the federal system of public defenders is not in any better shape. Clarke and Stroup (1992:26) relate that "(O)n June 17, 1992 the federal government ran out of money to pay attorneys appointed under the Criminal Justice Act (CJA) "16 Over 10,000 attorneys who represented indigent federal defendants were faced with the prospect of working for no pay for many months. As Clarke and Stroup describe, the average CJA attorney is a solo or small firm practitioner who is paid $60.00 for in-court work and $40.00 for other work. It is estimated that it costs an attorney about $50.00 an hour to maintain office overhead in a criminal case. It took five weeks for unappropriated funds to be released and some attorneys were owed as much as $40,000 from a system that was never that fast to pay in the first place. For a small practitioner that kind of payment backlog can be devastating. The point here is that even with the best of intentions the quality of criminal defense for indigent defendants is problematic. A criminal case often demands more than just an attorney. Expert witnesses and 200

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investigators may be needed, travel costs for critical witnesses may be involved. These are things, the lack of, which may adversely impact on a fair trial and influence the decision to plead guilty, even if innocent. Perhaps most importantly, case overload and inadequate resources may cause some critical point to be overlooked, evidence of police or prosecutorial misconduct unfound, an important objection unmade, or affirmative defense unstated. One or all of these may at some later stage be critical. All of this is occurring at a time when there is more and more pressure to arrest, prosecute and imprison. As is discussed next, all of the previous may dramatically influence the outcome of a defendant's one federal habeas corpus petition.17 Intersection: Scarce defense resources increases the probability of substantial error at the pretrial and trial stages of prosecution along with the possibility of unmade arguments and undiscovered evidence. Even scarcer defense appellate resources contribute to appeals backlogs and the narrowing of claims in appeals. This contributes to more usage of the postconviction relief process and more state appeals. Ultimately, the entire process depends evermore on federal habeas corpus review. 201

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The Rise and Fall of Habeas Corpus As related in chapter 1 habeas corpus, the "great writ, dates back centuries into English common law. 18 The writ was deemed so important that it is protected in the Constitution.19 Originally only available to federal prisoners, Congress codified the petition in the Habeas Corpus Act of 1867. That Act gave federal courts jurisdiction to grant habeas review for "any person" claiming to be held "in violation of the Constitution or laws or treaties of the United States. 20 That grant of power grew to be a major vehicle for redressing constitutional grievances.21 Federal habeas corpus relief for state prisoners has never enjoyed wide acclaim. Various state and federal courts have taken inconsistent and often conflicting approaches to the principle of comity (deference to a state's actions), the intent of Congress in passing the Habeas Corpus Act, and the need for federal habeas corpus review to ameliorate disparate state treatment. There have been several attempts by Congress, none successful as of yet, to severely limit habeas corpus review of state actions (for example, Sallet and Goodman, 1983). Habeas corpus petitions generally occur under two sets of circumstances: 202

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* When a prisoner's direct appeal from a criminal conviction has been denied by a state's highest court and, for various reasons, direct appeal to the federal courts is unavailable.22 When direct appeal, sometimes including appeal to the United States Supreme Court, has been exhausted and the prisoner desires review of new issues not heard on the initial direct appeal. As related earlier, it is important to note that many of the landmark decisions that underpinned the due process revolution grew not out of direct appeal but out of habeas corpus review. A habeas corpus case can be distinguished from a direct appeal case by the title. Thus, Mapp v. Ohio indicates a case settled on direct review with Mapp being the appellant in a direct appeal to the U.S. Supreme Court from the Supreme Court of Ohio. Gideon v. Wainright in contrast, grew from a federal habeas corpus petition from a Florida Supreme Court ruling. Gideon being the petitioner and Wainright the warden allegedly holding Gideon in unconstitutional custody. An important aspect of federal habeas corpus review is that there is no right to be represented by counsel. Hence, many habeas corpus petitions start off with inmates representing themselves (pro se) 23 Limiting Habeas Three major doctrines to limit federal habeas review 203

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of state convictions have emerged. procedural bar, and abandonment. They are exhaustion, Exhaustion doctrine requires that a state prisoner give the state courts a chance to fully decide a claim before that claim is submitted for federal habeas review (see Blocker, 1983). As related earlier, both direct appeal and appeals from denials of post-conviction motions must be exhausted prior to seeking federal review. Inmates who have had a direct appeal in federal court must return to state court and fully litigate any new claims before returning to federal direct appeal.24 Under this doctrine, U.S. District Courts must dismiss petitions containing both exhausted and unexhausted claims (Rose v. Lundy, 455 U.S. 509 [1982]). The fact that such exhaustion would be futile does not normally remove the exhaustion requirement. Procedural bar entails the concept that default on an "independent and adequate" state rule of procedure will bar federal relief except in exceptional circumstances. The independent and adequate state ground doctrine applies in situations where a state court decision appears to rest on federal and state law. If the decision of the state law question would support the judgement independent of the decision of the question of federal law, then the federal court is barred from hearing the case (Sullivan, 1990). 204

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Hence, failure to file a timely state appeal may result in refusal to hear that appeal and a consequent inability to "exhaust" the claim. In Fay v. Noia (372 U.S. 391 [1963], the Supreme Court held that procedural defaults of constitutional claims did not bar federal habeas review as long as the failure to comply with the state rule was not a deliberate attempt to "by-pass" state procedures. An important aspect of Fay was that prejudice only attached when the by-pass was the "considered choice of the petitioner," not just when counsel made a tactical decision or error (372 U.S. at 439). The Court drastically modified the Fay standard in Wainright v. Sykes (433 U.S. 72 [1977]) where it held that a state prisoner must show both "cause and prejudice" to overcome the procedural bar (Kent, 1984; Rurka, 1983). While the meaning of "cause" was not at first clear, in Engle v. Issac (102 S. Ct. 1588 [1982]) the Court set standards which amount to de facto strict liability. It is no easier for a state prisoner to show the prejudice prong of the test. The Court in a series of cases, Murray v. Carrier (106. S.Ct. 2639 [1986]); Smith v. Murray (106 S.Ct. 2661 [1986]); and Kuhlman v. Wilson (106 S.Ct. 2616 [1986]0, developed an "actual innocence" standard for prejudice. By that standard a prisoner can only show 205

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prejudice if the error would result in a "fundamental injustice," the conviction of an innocent man. The standard applies even in death penalty cases (Ledwitz, 1988) 25 Abandonment as a doctrine is codified in 2 8 U.s. c. Section 2244 as an abuse of writ. 26 Abandonment occurs when a petitioner deliberately fails to bring a claim on a first petition in order to later obtain a second habeas petition. In Sanders v. U.S. (373 U.S. 1 [1963]), the Supreme Court set a subjective "good faith" standard for determining if a particular claim was an abuse of writ and thus abandoned. 27 11Bad Faith" as developed in Sanders involves circumstances where the petitioner (or his counsel) have in their possession information which would give a factual and legal basis to a claim but intentionally do not bring that claim in order to pursue an end inconsistent with the orderly process of justice, to abuse the writ.28 Intersection: Habeas review expanded as other kinds of civil rights litigation did. It declined as the due process revolution declined and paralleled the developing antiplaintiff bias in civil rights litigation. Enter McClesky While federal habeas corpus review had gradually been eroding for over a decade, the doctrine of abandonment had 206

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never been seriously enforced. Most courts recognized that that it was impractical to plead every claim on a first direct appeal or set of post-conviction claims. Quite simply because taking such a 11Shotgun11 approach is not only stategically and tactically unsound but sure to bring the wrath of the appeals court down on the attorney. In point, most appeals courts limit the pages of briefs coming before them. Twenty pages is not uncommon. To exceed that amount permission of the court must be obtained. Arguably, a request to exceed page limits based on the grounds that 11I want to plead everything11 will not be looked on with favor. What McClesky v. Zant (111 S.Ct. 1454 [1991]) did was apply the strict liability 11cause and prejudice11 test of Wainright procedural bar to abandonment and reject the Sanders good faith test. McClesky effectively limits the petitioner to one petition in which 11all potential11 claims must be presented--even claims which may not be well founded in law or fact at the time. However, Federal Rule of Civil Procedure 11 prohibits the bringing of claims that are not well grounded in law or fact and mandates the sanctioning of petitioners, including attorneys, for doing so--and as the 5th Circuit stated in Anderson v. Butler (886 F.2d 111 [1989]), federal habeas corpus actions are civil actions subject to FRCP 11. 207

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McClesky is a long, complex, and convoluted case. 29 Its legal problems are stated quite well by Justice Marshall in the summation of his twelve page dissent: Ironically, the majority seeks to defend its doctrinal innovation on the ground that it will promote respect for the "rule of law." Ante, at 1469. Obviously, respect for the rule of law must start with those who are responsible for pronouncing the law. The majority's invocation of, "the orderly administration of justice," ante, at 1471, rings hollow when the majority itself tosses aside established precedents without explanation, disregards the will of congress, fashions rules that defy the reasonable expectations of the persons who must conform their conduct to the law's dictates and applies those rules in a way that rewards state misconduct and deceit. Whatever "abuse of the writ" today's decision is designed to avert pales in comparison with the majority's own abuse of the norms that inform the proper judicial function. id at 1489. For all its complexity, the case of Warren McClesky is not atypical of a contemporary death row case. Indeed, the unusual aspects of McClesky are that ( 1) McClesky prevailed, twice, at the federal district court level only to have that victory overturned on appeal, and (2) he had effective counsel in the first place.30 Many inmates have had their name appear before the U.S. Supreme Court more times for far less substantial issues. What is of 208

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particular importance about McClesky for this text is the deliberately withheld evidence that was material to McClesky's death sentence. As related in an earlier section of this chapter, one possible effect of post-modern criminal procedure is that it encourages law enforcement officials, police and prosecutors, to lie. With the advent of McClesky there is further encouragement to do so. If the withheld evidence is not discovered until after a first federal habeas petition, then it is likely that it can never be used because second petitions are barred. In McClesky's case it is clear that he would have had a substantial Section 1983 suit against the Atlanta Police Department for their actions in planting a Massiab informant and denying they did so. It is, however, difficult to file a suit from the grave. Beginning the Merger While it is severely stretching the existing law, arguably, the family of McClesky (if he had any) could file a derivative Section 1983 suit. Such a suit could be based on a theory that "but for" the actions of the Atlanta Police Department, McClesky would still be alive, albeit in prison. Section 1983 suits claiming that police actions 209

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that result in death can be an "illegal seizure" and giving standing to the family to sue have been upheld (see, for example, Tennessee v. Garner, 471 U.S. 1 [1985]). It would be difficult for the hypothetical family to show they lost anything in the way of actual or general damages. But a jury could find the actions of the Atlanta Police Department warranted punitive damages to deter similar future conduct. Realistically, this is an instance were it is unlikely that a "sympathetic" civil jury could be found to enter an award. That, however, is not the point. The point is that current sanctions and criminal appeal practice, combined with the reality that many civil rights plaintiffs and their claims are unlikely to arouse sympathy, allow cases to be diverted from full review under a procedural finding that the claim is "frivolous, groundless, not well founded in current law", or as in the case of habeas review, not filed at the right time. It also must be considered that Rule 11 type actions have expanded, and continue to expand, beyond the traditional arena of the civil trial courtroom. In a student authored Texas Law Review article, it is noted that the Fifth Federal Circuit held that Rule 11 applied to habeas corpus petitions since habeas corpus actions are civil in nature. The court further held that pro se (on their own 210

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behalf) litigants could be sanctioned for Rule 11 violations. While it is a maxim of the law that pro se litigants cannot benefit from their ignorance of substantive or procedural law, it did not seem that maxim would apply to non-lawyers where sanctions were concerned. Rule 11 only mentions attorneys as being subject to the rule. The law student authors related their substantial concern about the affect of this ruling on pro se prisoner litigation and appeals (NOTE, 1988). Chaires (1992) observed that attorneys involved in criminal appeals could find themselves being sanctioned for putting forth "frivolous" grounds for appeals when at the same time current habeas corpus law requires that every possible ground for federal habeas review be put forth or be lost. In line with Chaires's (1992) behavioral predictions, a September 20, 1993 article in the National Law Journal (p. 5) relates that the federal Fifth Circuit Court of Appeals intends to begin sanctioning lawyers who represent death row inmates for filing "last minute appeals." It remains to be seen how much further this trend will go. Already, it has become common in Nevada for inmates to be sanctioned under Rule 11 for filing Section 1983 actions deemed to be "frivolous." It is routine for the attorney general to ask for Rule 11 sanctions when inmates file any 211

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pro se claim.31 Clearly, the merger is increasing, to the extreme disadvantage of already disadvantaged interests. That is the subject of the concluding chapter. 212

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CHAPTER 5 END NOTES 1. While there have always been federal crimes, the vast majority of law enforcement occurs at the state and local levels. From traffic tickets to public order crimes to crimes against property and persons, local enforcement is the rule. 2. It should be noted that in Powell and Brown the Court made reference to its increasing perception that the "Bill of Rights" may in fact apply to the states in criminal matters through the 14th Amendment. In Powell the Court specifically addressed its earlier ruling in Hurtado v. California, 110 U.S. 516 (1884) in which it held that the 5th Amendment grand jury indictment clause did not apply to the states and in dicta severely limited the applicability of the criminal procedure guarantees in their state application. 3. It must be stated that what is perhaps so exceptional about cases like Powell, Brown, and Rochin is not the facts, but that the cases made it to the Supreme court in the first place. They respectively involved the alleged rape of a white woman by blacks, a murder by a black, and drugs. In Powell in particular, a lynch mob tried to extract the "Scottsburough Boys" from jail. That they were not hung outright without any kind of trial was the miracle. 4. In a somewhat bizarre replication of this incident the home of an ACLU attorney in Las Vegas was invaded in 1993. A named defendant police officer in a civil rights brutality suit appeared at the door of the attorney who filed the suit, in uniform with gun drawn. Stating he was searching for a "dangerous person11 the officer proceeded to search the house, including drawers. Finding nothing the officer left. The department first denied the incident and then later retracted that denial saying "they had been looking for someone." As in Mapp, there was no official record of. who they had been looking for. 5. Opinion by Justice Stewart, concurrences by Justices 213

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Douglas and Brennan, separate opinion by Justice Harlan, dissent by Justice Black. Justice Marshall did not participate. The case was even more interesting because the Court went beyond the pleadings in the case which emphasized protected places to find that "the Fourth Amendment protects people not places. What a person knowingly exposes to the public, even in his own home or office, is not the subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public; may be constitutionally protected (at 353). 6. It is interesting to note that Justice Stewart wrote a strong dissent in Griswald but later wrote the majority opinion in Katz. 7. First implemented by Christopher Columbus Langdell at Harvard law School in the 1870's, the case book method of reducing fact issues to a discreet series of legal rules became the dominant method of legal instruction in America (Abadinsky, 1991:82-87). Thus, when dealing with complex value laden issues such as balances of power, the tendency is to separate the issues into legally cognizable ones, i.e., individual rights granted under the constitution and government power, look at the constitution and then, depending on philosophic bent, either "discover" or "create" a new rule. At all times, of course, the analysis of the facts and arguments in support of the conclusion must be framed in the traditional "case" form. 8. A side point to this is that criminal procedure instructors are forced into a quandary. The instructor must either continue the bizarre ritual of legal cause and effect, or, attempt to analyze the case in a balancing approach. Either, ultimately undermines the credibility of the court, and hence the law. Contributing to the problem is that many of the stories told by officers are stories that if told by an eight year old would not be believed. 9. There is another teaching problem here. Does one explain to the students that officers do not usually, if ever, fix taillights? Does one explain that it unlikely that the court believed that a car was stopped because it had a 214 /

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headlamp out? If you do explain these things, how do you explain that it is unethical to engage in such pretextual conduct (which may involve lying under oath) even though the courts seem to implicitly authorize it? 10. The Court made particular point of the fact that even though one officer was holding a clearly visible gun inside a pouch there was no evidence that the gun was actually pointed at Bostick. There is again a teaching problem in this. In his Bostick dissent Justice Marshall noted that these "drug sweeps" are often based on racial characteristics. Further he relates that in another Florida case, Florida v. Kerwick (Fla.App., 1987) an officer stated he had made over 3,000 baggage searches in 9 months. A sweep of 100 buses resulted in 7 arrests. How much time should be given to the dissent which tends to indicate, despite official protests to the contrary, that racial bias is tacitly approved of by the Supreme Court? How does one explain the actions of the DEA in Fall of 1993 when agents spotting a "obvious drug courier" at LAX International Airport surrounded at gunpoint the limousine carrying an expensively dressed Black man and woman and were not apologetic upon finding out it was multimillionaire/singer Whitney Houston and her husband. How can criminal justice instructors teach students to respect human rights, ignore the pressures to engage in marginal conduct and to obey the law when the Supreme Court continually recognizes the need for quasilegal conduct to fight the war on crime and continually enlarges on law enforcement power and discretion? 11. There is, of course, another teaching problem here. How does one explain that a maxim of constitutional law is that a state is free to give its citizens more rights than the minimal ones guaranteed by the federal constitution, especially when it grounds those rights on the state constitution, but when this is done the Supreme Court reverses? How does one explain that the impact of the death of Justice Marshal, the retirement of Justice Brennan and the pending retirement of Justice Blackmun on the future of criminal procedure in America? Finally, how does one explain to a student that one is no longer really free to be outside their home without random police 215

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interference? 12. In sentences of life without parole there is a limited right to a "proportionality review." In sentences of death the defendant has a right to a review of the sentence by the state's highest court. 13. This writer, while working as a Legal Access Attorney in the Colorado Department of Corrections, personally interviewed and advised over 1,500 inmates over a three year period. The vast majority of issues inmates sought advice on concerned post-conviction relief. With rare exception the inmates indicated they had either been coerced into a plea bargain or not fully advised of the consequences. While inmate dissatisfaction is understandable and often exaggerated by the inmate, only a few of the inmates expressed any satisfaction with their defense attorney who was in nearly all cases a public defender or court appointed counsel. Investigation almost invariably disclosed that there were substantial between the inmate's version and the official record. Because motions to withdraw pleas must be based on the record and a showing that the plea was not knowing, intelligent or voluntary and/or that counsel was ineffective in advising the defendant, such motions were very seldom successful. 14. For example, Colorado Rule of Criminal Procedure 35, which follows like most states the federal rules, has three distinct parts: 35 (a) is a motion covering a claim of an illegal sentence; 35 (b) is a motion covering a request for the judge to reconsider the sentence 35 (c) is a motion claiming an unconstitutional conviction or plea, or a request for the judge to rule on something, such as the retroactive application of a new sentencing law, in the interests of justice. A 35 (c) motion is similar to a state habeas corpus motion. The difference is that a state habeas corpus motion is heard in the jurisdiction were the petitioner is being held, not the original trial court. 15. Inmate "writ-writing" for profit is a major problem in prisons. Often doubtful legal help is sold to unsophisticated inmates at extortion prices. Again, as a 216

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legal access attorney, a major portion of this writers work involved undoing the harm caused by writ-writers. In many cases it could not be undone. Several of the 20 odd inmate law clerks that worked for this writer had to be fired because they were extorting money for legal work. It was suspected that more were doing it but being more sophisticated in their methods did not get caught. It should be noted that there are some excellent inmate writwriters with skills that rival that of any attorney. 16. There is a federal public defender office but most indigent federal defendants are appointed private counsel under the CJA. 17. It must be mentioned that sometimes the attorneys who are willing to work for such low sums are not motivated by altruism or representative of the best the bar has to offer. In Washoe County, Nevada (Reno area) court appointed counsel are paid a flat fee of $400 for representing a felony defendant. They are paid the same $400 whether they plead the client guilty at a first appearance or go through a trial. It is for the reader to consider the consequences of this. 18. Portions of this section have been adapted from a previous article by the author (Chaires, 1992) That article was written with this larger text in mind and to "test" the waters so to speak about the viability of writing about Rule 11's impact on a variety of civil rights kinds of actions. 19. Article I, Section 9 of the United States Constitution states, inter alia, "The privilege of the writ of habeas corpus shall not be suspended, unless in cases of rebellion or invasion the public safety shall require it." 20. Act of Feb. 5, 1867, ch. 28, sec. I 14 Stat.385 (codified at 28 U.S.C. Sections, 2242-2255. For a historical review and analysis see Peller, "In Defense of Federal Habeas Corpus Review Relitigation (1982). 21. Habeas corpus today is considered a form of postconviction relief. The writ is, however, much broader in 217

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form and power. It has been used, as noted in chapter I, to test conditions of confinement and in the noncriminal sector as a means to compel certain kinds of government conduct, such as, ordering social services to return a child. 22. As related above, many states limit appointment of counsel for indigent inmates to state level appeals. Thus, a prisoner's only viable remedy for further review is pro se habeas corpus which is procedurally simpler than direct federal appeal. 23. Recognizing the problems of pro se litigation the federal district courts have developed simplified forms specifically for inmate use. 24. An example of this would be a prisoner who was convicted of murder. After trial, direct state appeal of seven errors is denied by the intermediate and state supreme court. Certiorari is denied by the U.S. Supreme Court. The inmate now wants to claim ineffective assistance of counsel at the trial, a claim not alleged on first direct appeal, or litigated in a post-trial motion. The prisoner must return to state trial court on a postconviction motion and have a hearing .on that claim. If the claim is denied the prisoner must appeal that denial through the state appellate court (s) prior to seeking federal habeas review. 25. Ledewitz (1988) argues that the innocence question should be two-tiered: (1) whether a person is factually innocent, and ( 2) whether a person factually should be executed. Thus, there should be a bar to claims that would prove "legal" (but not factual) innocence to a conviction, but no bar to claims which would factually or legally impact on the death sentence. 26. Section 2244. Finality of Determination. (b) a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges.and is predicated on a factual or other ground not adjudicated on the hearing of 218

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the earlier application for the writ and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ. 27. "Good faith" in this context has long been a standard. In Wong do v. U.S., 265 U.S. 239 (1924), the Court ruled that an alien had acted in bad faith by being in possession of evidence supporting his claim but not pressing that claim so as to obtain a second review and postpone his deportation. 28. Abuse of writ can occur in circumstances other than successive unwarranted petitions. Filing petitions to vex, harass, or to delay constitute abuse of writ. 29. In 1978 McClesky was sentenced to death for two counts of armed robbery and the murder of a police officer. The conviction and sentence was affirmed by the Georgia Supreme Court, McClesky v. State, 263 S.E. 2d 146 (1980), which denied McClesky's six claims of error. The United States Supreme Court denied certiorari, 449 U.S. 891 (1980). McClesky then pursued state habeas corpus alleging 23 challenges including a Massiah, 377 U.S. 201 (1964), (placing an informant in violation of 6th amendment rights) claim. The state trial court denied the writ and the Georgia Supreme Court upheld the denial. The U.S. Supreme Court denied certiorari, McClesky v. Zant, 454 U.S. 1093 (1981). At the end of 1981 McClesky filed his first Section 2254 petition asserting 18 grounds for relief. That petition contained Giglio, 405 U.S. 150 (1972), (state failure to advise that a witness had been made a promise effecting sentence in return for testimony), and Brady, 373 U.S. 83 (1963) (failure to disclose exculpatory evidence) claims but no Massiah claim. The crux of McClesky' s arguments centered around the rebuttal testimony of Evans, an inmate in the cell next to McClesky prior to trial. McClesky claimed an alibi defense. Evans swore that McClesky had bragged about killing the police officer. In discovery the prosecution had not mentioned Evans overhearing McClesky or that a promise of favorable treatment (intervention in sentencing) in return for testimony had been made to Evans. At this time McClesky 219

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had no evidence to support a Massiah claim. The District Court granted relief ruling that failure to disclose a promise of favorable treatment to an inmate witness violated Giglio. The Court of Appeals reversed, holding that no Giglio promise had been made and even had there been it would have been harmless, McClesky v. Kemp, 753 F.2d 877 (11th Cir. 1985). The U.S. Supreme Court granted limited certiorari for the purpose of a ruling on whether Georgia's capital sentencing procedure was constitutional. The court said it was. McClesky v. Kemp, 481 U.S. 279 (1987) A second state habeas was filed in 1987 with five claims for relief. The petition was denied and the Georgia Supreme Court upheld the denial. McClesky then commenced his second federal habeas action asserting seven claims including a Massiah claim. To support his Massiah claim McClesky offered a 21 page statement made by Evans to the Atlanta police department two weeks before trial (August 15, 1978) but only given to McClesky a month before filing the second section 2254 petition, despite discovery requests by defense counsel prior to trial. Evan's statement included that he had posed as the uncle of McClesky's codefendant to elicit statements. The State of Georgia responded inter alia with a claim that attempting to use the Massiah claim for the first time in a second 2254 was an "abuse of writ" under the meaning of 28 U.S.C. 2244 (b) The court held extensive hearings centering around whether Evans had been intentionally moved next to McClesky at the behest of Atlanta detectives. The District Court granted relief making factual findings that Evans had been placed next to McClesky "for the purpose of gathering incriminating information"; and that "Evans was probably coached in how to approach McClesky and given critical facts unknown to the general public." (id at 83) The District Court rejected the State's abuse of writ claim, McClesky v. Kemp, No. C87-1517A (N.D. Ga 1987), specifically ruling that McClesky had not reserved his proof or deliberately withheld his claim to obtain a second petition and that McClesky had not committed inexcusable neglect in failing to plead the claim earlier. The Eleventh Circuit reversed holding that the trial court had abused its discretion by failing to dismiss the Massiah claim as an abuse of writ, McClesky v. Zant, 890 F.2d 342 (11th Cir. 1989). The U.S. Supreme Court granted 220

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certiorari. The case was decided in April of 1991 and McClesky was executed in September. 30. Mello (1989) notes that the Supreme Court has still failed to rule on whether death row inmates (let alone other inmates) have a right to appointed counsel. In any event, the demand for counsel far exceeds the supply, see also, Spandenberg, 1989. 31. The federal judges in Nevada have recognized that it is useless to order inmates to pay attorney fees. They have, however, ordered inmates to pay sums as large as $200, several months pay for an inmate. In some instances, the power of sanctions has been used to initiate prison discipline or bar inmates from filing other claims. Again, many inmate claims are frivolous, but often inmates do not have the legal sophistication to distinguish issues of fact and law or the concept of jurisdiction. 221

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CHAPTER VI REFORM IMPLICATIONS: A CONCLUSION In any writing of this type it is likely that some things have been covered too much and others not enough. With this in mind, this summary and conclusion follows the format of chapter five in using Intersections. These intersections attempt in brief form to explain how legal reforms in their contact with the behavior of law may have produced paradigmatic shifts in the understanding, processing, and ultimate treatment of complex issues by the various actors in this system of justice. This chapter concludes with some suggestions on how to "reform" the reforms. Most if not all of these suggestions are not new. They are the summary of collective past experience with racial and economic bias in the legal system. Within this vein this chapter will refer extensively to the proceedings of the First National Conference on Eliminating Racial and Ethnic Bias in the Courts which was held in Albuquerque, New Mexico in March of 1995 by the National Center for State Courts. Perhaps ironically, the National Center for the State Courts has been a leader in recognizing and studying racial and ethnic 222

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bias in the courts at the same time that efforts to reduce access to the courts in general are in progress (see, for example, Roberts, 1993) Encouraging State Law Breaking While Limiting Remedies McClesky' s story, described in chapter five, is a metaphor for the problems of legal reform as applied to the poor and substantially disenfranchised. There is little doubt that McClesky killed a police officer and was individually a person oflittle value to society; however, the rage of that officer's peers seems little justification for the actions of the police department.1 In McClesky's first habeas corpus appeal (McClesky v. Kemp, 481 U.S. 279 [1987]) the sole issue reviewed by the Supreme Court on certiorari was that of disproportionality in the death sentence. When a black person killed a white person they were, at a statistically significant rate, more likely to be sentenced to death than when the reverse occurred, a result that Black would have predicted long before the study was done that produced the statistical evidence. The Supreme Court rejected that statistical argument. No right had been violated and statistics prove little. McClesky on his second habeas was just in the wrong place at the wrong 223

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time. For a few months after the decision of the federal district court he was free from the death penalty. The testimony of the informant about McClesky bragging about killing the police officer, testimony which arguably would have influenced the jury decision of death, would not be admissible. The conviction itself would not have been reversed; there was sufficient independent evidence for that. McClesky would just have been spared the results of the death penalty phase.2 But, the political rhetoric and political pressure was to end the endless criminal appeals via habeas corpus and the Court did so. The vast, vast majority of criminal defendants do not face the death penalty. They are the endless, faceless burglars, stick-ups, thieves and bad check passers that inhabit a society of more than a quarter billion people. They are the losers whose crimes have no distinction, except to the victim. Because their crimes are not the substance of front page news or so heinous as to outrage, their zealous prosecution, or defense, has no political or career weight. In the overload of cases of prosecution, defense and the court they are shuffled through the system with only passing nods from the courtroom actors. Their fate is decided in quick huddled conferences in which they 224

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play no real role. But are they so faceless? the street what a criminal Ask the average citizen on looks like and likely a stereotype will emerge. A suspicious stereotype with a darker color to it's skin and perhaps a strange cut to the clothing. The question that must emerge is "why?" A possible answer to that question may be in the intersection of the past and future behavior of legal reform and the behavior of law. The Politics of Crime and Discretion Atkins and Pogrebin (1978) first coined the term "the myths and legends of criminal justice." Their collection of readings on discretion and the law pointed out that discretion in criminal justice was inevitable, necessary, and in many cases even in the best interests of an equitable concept of justice. A central theme throughout that work was that discretion must be guided and controlled, not eliminated. Perhaps, to paraphrase a former President, that was a kinder and gentler day. Controlling and guiding criminal justice discretion has not worked well (perhaps because no one has seriously tried to) for people of color, or possibly for anyone, except as Black predicts, white collar criminals. That the exercise 225

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of discretion in the criminal justice system has not benefited the poor and people of color is too obvious. While some like Wilbanks (1987) describe the "Myth of Racist Criminal Justice System," others such as Kappeler, Blumberg and Potter (1993) relate that the myths of criminal justice are alive and well. Their myths, however, do not have such a positive perspective as those of Atkins and Pogrebin. Sixteen years after the "myths of criminal justice and discretion," the dominant myths of contemporary crime are, inter alia, of rampant serial killings, burned out cops fighting a valiant but losing war against drugs (hampered of course by legal technicalities) and an overly lenient criminal justice system. Given that the United States has the highest per capita incarceration rate in the world, 426 per 100,000 population (Mauer, 1992) and that almost one in four Black males age 20-29 were under some form of penal control (prison, jail, probation or parole (Muer, 1990), such myths seem absurd. Who Suffers It must be stated that who suffers is exactly whom Black (1976) predicts would suffer the most punitive and penal sanctions of the law. Law varies directly with rank (1976: 17) and the poor, especially poor people of color 226

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have the least rank. Tafia (1994) citing a U.S. Sentencing Committee study of 1992 convictions relates that 91.3% of the federal convictions for crack cocaine offenses were Black while only three percent were white. Yet the same study indicated that 64% (2.4 million) of crack cocaine users were White while only 26.6% (990,000) were Black.3 Taifa further relates that there is a movement in Congress to make a felony drug conviction one of the "strikes" in proposed "three strikes your out" legislation that would require a mandatory life sentence without parole for violent criminals. There is little reason to believe that the states that are jumping on the three strikes political bandwagon will not eventually produce such a racially disparate result. Chapter 1 related that the federal sentencing guidelines, intended to reduce sentence disparity, had already developed an adverse racial (Shein, 1993) and even gender (Raeder, 1993) bias. Gordon (1990) brings a more chilling dimension to who suffers. She notes that the Anti-Drug Abuse Act of 1988 carried provisions for "civil penalties" for drug convictions including minor possession charges. These penalties include "cancelling FHA mortgages, suspending drivers' licenses, student loans and .public housing" (1990:4). 227 and denying While nothing

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(yet) appears in the case law or literature about the enforcement of these provisions, there exists a chilling potential for producing a permanent "underclass" of color deprived of all hope by a singular mistake or a perception of having made a mistake. Who Pays Implicit in the question of who suffers" is that they who suffer are also paying. But there are also more tangible and intangible costs than the suffering of the "others." There are costs that accrue to this society as a whole. As in the determination of damages in a civil suit, tangible or "actual" costs of the politics of crime can be measured in the price of prison cells and insurance rates. The "general damages", the costs of pain and suffering, are more difficult to measure. The worth of broken lives and shattered dreams, or worse no dreams at all, are not easily fit into some jury consideration guided by rhetoric, pie charts and graphs. Finally, "punitive damages", the most speculative and potentially most costly of all, will not be paid by the "baby boomers," the movers and shakers of this decade. The costs will be paid by their children. Gordon in her conclusion to "The Justice Juggernaut" relates that: 228

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Our commitment to a planned society is weaker on the cusp of the 1990s than it was going into the 1970s. One of the reasons for this is that street crime--the justice juggernaut highlights it--has legitimized inequality by suggesting that the principle beneficiaries of a set of more progressive economic ahd social welfare policies are, at the bottom, undeserving and would not contribute to a more productive society. The urban minority male has been socially cons true ted as a 11 universal threat, 11 a symbol of disorder likely to induce rigidity in public response (1990:242, author's emphasis). As to who pays, we all do. As to Gordon's presentation of the "urban minority male," the fragmentation and violence inherent in that may be the highest cost of all. Not strangely, the behavior of law predicts this result. Intersection: Reforms in civil law such as sanctions reduce the ability of those most affected by defacto or dejure discrimination to challenge, via civil rights litigation, the legitimacy of criminal justice policy and practices which result in disparate, enforcement, processing, and incarceration and the secondary impacts of same. Reforms in criminal procedure such as those of the postmodern era and in habeas corpus encourage the continuance of discrimination and severely reduce the ability of individuals to obtain a meaningful remedy for such violations. Thus, minority influence into the intake and exit aspects of the government's most powerful function has been adversely impacted. 229

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Reviewing Judicial Review Saxe (1980:175) related a major problem in attempting to combine law and social science: to understand the relationship between social science data and law we must understand and carefully distinguish among the various functions that the law serves. In particular, it is crucial to understand the tension between the social policy function of and the legitimation function of law. Since this tension is implicit in the multifarious purposes law serves, we should not expect an easy relationship between social science and the courts. While Saxe's observation is about the trouble that courts often have with using social science data as evidence, in substance it also applies to a theme of this text, that is, if we do not agree on the purpose of law, how can we measure its reform? Arguably, if any of the studies presented in this text had produced a result that attorneys were over-whelmingly opposed to Rule 11, at the federal or state level, the court response could validly be 11so what?11 The same 11SO what11 response could also be validly put forth if social science research indicated that indeed sanctions practice had dramatically chilled civil rights litigation. As has been argued several times in several ways within this writing, Rule 11 is symbolic of the conflict that exists 230

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about the function of courts in a pluralistic democracy with a federalistic, tripartite system. There is by no means any kind of dominate consensus on the role of the courts---or the role of law. Wolfe (1986) gives some perspective to the conflicts inherent in defining the role of the courts in his history of modern judicial review. He argues that in a period beginning roughly with the constitutional revolution of 1937 the Supreme Court gradually moved from defining its judicial review power in the context of "enforcing the constitution" to that of "adapting the constitution to new purposes." While Wolfe is critical of many of the outcomes of this development, particularly the expansion of "fundamental rights," he does recognize the critical importance of the courts in shaping needed changes in social policy when other governmental entities will not. Civil and criminal legal reform often operates as a procedural device that has the substantial effect of removing the courts as a means to remedy social wrongs and government misconduct. Clearly, the availability of sanctions allows the courts at all levels another tool to redefine the role of the courts in a less accessible direction. As Chemerinsky (1990) holds, the Rehnquist Court majority has consistently engaged in setting up 231

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artificial stifled as barriers and constitutional a result. Many judges at growth has been the trial and intermediate appeal levels have been no less willing to travel in this direction. Because judicial philosophy is in many ways irrelevant to the "behavior of law," arguments about original intent and judicial activism, or the lack of it, often miss the point. That point is, unless cases get into court their merits, legal, social, or otherwise cannot be resolved in a venue which is perceived, despite all the rhetoric, to be legitimate. Who prevails in a particular case may not even be that important. What is important is that the arguments be made and recorded. It is axiomatic that the law changes. Often that change is based on the recorded dissent in a case. Barth (1974), for example, describes six early landmark cases in which the voice of a lone dissenter later became the law of the land. 4 While changing social conditions and values may have brought about the actual change, it can be strongly argued that the existence of those judicial rulings, and the dissent, served as a focal point for change. In this same vein, it can be argued that the strong dissents in the criminal due process revolution cases gave focus to post-modern law. Under current sanctions and criminal procedure 232

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practice it is, arguably, much more difficult for small issues to become great ones and reach the highest court. A lone judge in a trial court now has greater power to summarily divert a case from full review. Intersection: One possible impact of legal reform that has been suggested in this text is that a paradigmatic shift is (has) occurring. At the end of that shift is a dominant view (not just the political rhetoric and academic analysis) that the courts are just another political branch of government, perhaps no better and perhaps no worse. But still in the common more cynical perception of politics, it is for sale to the highest bidder and responsive to the latest crisis. This is perhaps the highest potential punitive damage of much of the current legal reform, a society that does not believe the law to be common to all. Let's Kill All the Lawyers Shakespeare's line from Henry VI, 11The first thing we do, let's kill all the lawyers (Act 4, scene 2, 1592) 11 has oft been quoted, usually not in a context favorable to lawyers. However, the character actually speaking the line is 11Dick the Butcher, 11 a notorious highwayman. Dick desires to overthrow the government and the comment about the lawyers expresses his understanding that lawyers stood for law, order and justice and as such must be removed 233

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before anarchy could prevail. Therefore Shakespeare's line actually expresses the value of lawyers to society. In popular culture lawyers are a convenient scapegoat for many of society's ills. That lawyer jokes enjoy such widespread popularity bespeaks of the ambivalence with which they are viewed. Historically, lawyers have never been a popular group. Yet positive lawyer images, the lone champion taking on impossible odds to secure justice for a client, are a staple of the various mass media. Americans idealize a contemporary myth of "David and Goliath." The question of lawyer popularity obscures the real issue of the public (and judicial) perception of lawyers and the legal system. Black (1976:18) states "In modern societies, contact with lawyers varies directly with rank." This observation has a direct bearing on perceptions about who really has access to the law. A Lawyer by Any Other Name A poll done in 1993 by the American Bar Association (ABA) indicates, inter alia, that "The public perception seems based on strongly rooted dissatisfaction with some aspects of the way the system works and how lawyers practice their skills," (Hengstler, 1993:60). A separate 1993 poll done by the National Law Journal and West 234

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Publishing Co. (NLJ/West) gives another dimension to public dissatisfaction with lawyers. While the NLJ/West poll described a growing cynicism toward lawyers and a deepening image crisis, there were some strong differences of opinions based on race and wealth. A simple majority of blacks (51%) had a "good" opinion about lawyers as opposed to only 26 percent of whites. People at the lower income levels appeared to have more positive perceptions of lawyers than people at the higher income levels (Samborn, 1993) Marc Galanter of the University of Wisconsin law School describes the results of the NLJ/West poll as exhibiting two "distinct streams of animosity toward lawyers." The first he describes as the rather normal anti-lawyer bias generated by things like unreturned phones calls and high fees. The second stream is more troubling. Galanter relates that it represents a "backlash against the use of the legal system to expand the rights of society's less privileged11 (cited by Samborn, 1993:21). This observation by Galanter is at the core of the legal reform issue. The adversarial legal system, for all its weaknesses, was acceptable when it served the interests of the rich and powerful. When that system became a vehicle for social 235

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change, when the weak and had access to the courts, lawyers, at least the lawyers of lesser groups, became troublesome entities advocating strange and frivolous legal ideas. One result was sanctions practice and increasing conflict in the legal community. Sanctions Behavior and Legal Conflict At the very least, if sanctions practice has not "chilled out" attorney creativity and willingness to undertake marginal cases it has definitely made the climate much colder. A not-so-obvious behavioral impact of sanctions practice is that it has the potential, if not already the reality, to exacerbate any preexisting, real or imagined, discord among attorneys. That is, if there is a generational gap, or a gender gap, or a race gap among counsel, the seeking or threatening of sanctions will serve to increase antagonism. Black (1976: 105-121) presents another dimension of this in his observations about law as social control, among which is that "law varies inversely with other social control" (1976:107). Hence, when one attorney does not subscribe to what another attorney, or judge, believes is proper conduct or a proper argument, the law in the form of sanctions is available. At a more cynical level, it can be argued that 236

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sanctions practice can be used when an attorney does not look, quite literally, like what the other side or the judge deems an attorney should. That possible aspect of sanctioning would seem to be one that deserves further study. Forgotten in the high stakes arena of litigation is another line from Shakespeare: 11 And do as adversaries do in law, strive mightily but eat and drink as friends 11 (The Taming of the Shrew, Act 1, scene 2, 1594) This more hostile, and even elitist, trend in litigation clearly is inconsistent with equal access to the courts for all. Expanding Sanctions As related in chapter five Rule 11 applies to federal habeas corpus petitions. The concept of sanctions has, predictably, expanded far beyond the civil tort courtroom. At the same time as sanctions practice is being harshly criticized for its abuse in the civil trial courts, Rule 11 type procedural devices are being implemented and expanded in other venues. The Immigration and Naturalization Service (INS) has implemented sanctions for making frivolous or groundless claims at hearings. The Internal Revenue Service routinely argues for sanctions in tax court. Federal Rule of Appellate Procedure 3 8 requires sanctions for frivolous appeals. Many states now allow 237

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sanctions for any "frivolous" appeal of any civil ruling. Federal Rule of Civil Procedure 26 which deals with discovery has been expanded to require sanctions if a party "unreasonably" attempts to discover evidence from the other party using depositions, interrogatories or requests for production of documents (source, Congressional & Administrative News, June, 1993, No.4 p.G169-G180, effective date, Dec. 1, 1993). At a more prosaic level, sanctions are being advertised. For example, in Nevada, every attorney advertisement must also carry a warning that the person pursuing legal action may become responsible for the attorney fees and costs of the other side. Given that most attorney ads involve an offer to represent plaintiffs, the direction of this warning is clear. Intersection: Almost every civil action of any kind is sanctionable. Bizarre results can occur. If you file a case without evidence in hand you may be sanctioned for filing a "groundless" claim. However, often hard evidence is only obtainable by utilizing discovery. Discovery can only be obtained after a suit is filed. If you attempt to discover material to support your case, you can be sanctioned. If you attempt to appeal any sanction, or even any ruling in a case, you can be sanctioned. These kinds of "kafkaesque" scenarios cannot help but further chill zealous civil and 238

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criminal advocacy, while marginalizing attorneys by whom they represent. Toward the Future It is perhaps significant that the first national conference on racial and ethnic bias in the courts was not dedicated to the study of bias but to the elimination of that bias (First National Conference on Eliminating Racial and Ethnic Bias in The Courts, 1995) Hence, there is widespread recognition of bias in the courts. As Black would note it is not surprising that bias in the courts has racial and economic implications since the two characteristics are so intertwined. In point, several of the state task forces and commissions that were formed to study racial and ethnic bias chose to simultaneously study economic bias. For example, in 1992 the Supreme Court of Nevada established by judicial order the Supreme Court of Nevada Task Force for the Study of Racial and Economic Bias in the Justice System.5 The stated objectives of the national conference were: To change the attitudes of judicial leaders toward the existence of bias in the judicial branch. To present an analytical framework for understanding how personal, institutional, and systematic racial and ethnic biases operate in the judicial environment. 239

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* To provide a forum to assess the policy and management implications of both the existence and elimination of bias. To inform the conference participants about successful measures taken to eliminate bias from the courts. To inspire representatives from each jurisdiction to develop and implement a strategy for eliminating racial and ethnic bias from their systems (source, conference handbook, introductory pages.)6 The stated objectives of the 1995 conference were, in sum, the recognition of many of the concerns with the interactions among legal reform and behavioral impact that have been discussed in this text. Perhaps the most telling objective of the conference was "To change the attitude of judicial leaders to the existence of bias in the judicial branch." This objective speaks volumes. In one dimension it recognizes the historical division in the courts about therole of law. In another dimension it is a pragmatic effort in a realist tradition to act on the judicial organization rather than the law. In still another dimension it is a recognition that all the best efforts may have already substantially failed or may fail in the future in reaching the cover goal of the conference, "Justice For All.11 240

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Avoiding a Last Hurrah For Civil Rights Litigation That legal reform will continue is beyond doubt. Continuing reform is a necessary part of any society that survives and grows. The trick is not 11to throw the baby out with the bathwater.11 As stated several times in this text, the utility of civil law reform is problematic. Usually there will be some interest group that sees a particular reform as critical to the health of the law, or even the society. Usually there will be some interest group that will resist the reform, seeing it as destructive to the law or society. Who and what prevails, as has been noted herein, is often more a matter of raw political power than reasoned consideration of cause and effect. An example of this can be seen in the current tort reform combat in Congress---and elsewhere. On April 24, 1995 the American Bar Association's (ABA) Governmental Affairs Office mailed to the ABA membership a plea for aid in stopping Senate passage of 11 federal product liability legislation11 and 11broad federalization of the tort liability laws.11 The multipage letter noted, inter alia, that pending or passed legislation includes: S. 565 would cap punitive damages at $250,000 or three times economic losses whichever is greater and establish a standard of proof for punitive damages of 11a conscious, flagrant 241

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indifference to the safety of others. The Senate Bill applies these limits only to product liability cases. H.R. 956 passed March 10, 1995 caps punitive damages in all state and federal civil cases at $250, 000 or three times economic damages, imposes a 11conduct specifically intended to cause harm11 standard for proof of such damages, and abolishes joint liability for non-economic losses in all civil cases brought in any State or Federal Court. S. 454 introduced on February 16, 1995 would preempt state medical malpractice laws, cap punitive damages at $250,000, end the collateral source rule, and mandate that any awards be paid in periodic payment rather than in lump sums. H.R. 988 passed the House on March 7, 1995. It applies a modified 11loser pays11 rule in federal diversity cases. In the Senate four bill with "loser pays provisions have been introduced, s. 243, the Civil Justice Refor.m Act, S. 300, the Lawsuit Refor.m Act, S. 672, the Civil Justice Fairness Act and S. 240, the Refor.m of Private Securities Litigation Act. S. 300 in particular would apply to all civil litigation in state courts, substantially preempting state law. H.R. 988 also contains provisions which circumvent the Rules Enabling Act by legislating changes in the Federal Rules of Civil Procedure concerning expert witnesses and reversing the 1993 amendments to Rule 11 and reinstituting mandatory sanctions. Most probably (hopefully?) what finally emerges from the legislative process will not be as draconian as some of the proposals. For one, it is unlikely that the current climate of "less federalization" is amenable to the passage of legislation that would essentially "federalize" current 242

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civil litigation. And, of course, President Clinton still has the veto power. He has threatened to use this power if any "loser pays" legislation crosses his desk. There are, however, powerful interests at work for this federalization. The American Medical Association (AMA) manufacturing groups and the insurance industry have all invested substantial resources in pushing this legislation. There is, though, a unsurprising irony here. Those interests which have argued most strongly for deregulation and less federal intervention must support regulation and intervention in this arena. Part of the Republican "Contract With America" was "legal reform" as well as less federal government. To get that legal reform requires more federal government. In the context of this text the important question is "how much will civil rights litigation get caught-up, intentionally or otherwise, in the furor?" Limiting the Impact In Chapter 4 it was related that problems surrounding the interpretation, application and appeal of Rule 11 led the Task Force on Simplification.of the Law of the New York Bar to recommend that where sanctions were appealed, "If any (appeals) judge believes a position is not improperly 243

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advanced, by definition it should be deemed not frivolous" (Givens, 1991:31). A similar problem identified in that chapter was the nebulousness of much of civil rights litigation. In recognition of the difficulty of applying "frivolous and groundless" and "not well founded in current law" standards of Rule 11 to civil rights litigation, Judge Ripple of the United States Court of Appeals for the 7th Circuit proposed a "constitutional exception" for Rule 11 (Ripple and Saalman, 1988). As a policy it is proposed herein that a general rule of law or civil procedure be developed holding that: Unless specifically addressed or included, changes or amendments of civil procedure that will have the substantial effect of limiting access to the courts of civil rights issues will not apply to such issues. In instances were there is substantial debate as to whether a particular rule of civil procedure applies to civil rights litigation or whether a particular claim is protected, a general appeal rule similar to that proposed by the New York Task-force would apply. An example would be: Where on appeal the question is one of whether a rule of civil procedure limits access to the courts for civil rights claims or whether a particular claim is a civil rights claim, the finding of one judge in favor is adequate to remand the case for treatment with protection of the rule. 244

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Of course, these kinds of exceptions would cause controversy and arguments of bias against defendants. Many would argue that what would happen is that two sets of civil procedure would develop, one for civil rights, the other for everything else. While unlikely, this is possible. But, it must be argued that this "worst case" scenario would be positive. Civil rights claims should not and cannot be treated just like any other civil claim, like grocery store "slip and fall" or even a medical malpractice suits. Evolution in the law, like evolution in a society, is largely dependent on changes competing interests. in values and the recognition of The decision(s) as to which of those interests should prevail is invariably the product of a multi variant process. The legal system is only one of those processes, but it is an extremely important one in terms of lending legitimacy to the decision. A separate procedure for civil rights litigation would recognize the critical role of the law in ensuring the legitimate balancing of civil rights interests in the light of the public forum of litigation. More likely, though, is that a separate civil rights track would not develop. Practical problems in implementation and control would tend to sidetrack such a 245

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development. For example, there might be a tendency to frame (or attempt to) many more actions as civil rights claims and consequent cries of creating too much satellite litigation. The most important aspect of implementing such policies might be to create an atmosphere were, before changes are made, more thought is given to possibly unintended consequences---to the behavior of law. This result, paying more attention to how legal reform might adversely impact on the disenfranchised, is a reachable goal. The First National Conference on Eliminating Racial and Ethnic Bias in the Courts was a substantial step toward a dominate recognition that seemingly remote areas of law and procedure may interact to produce an unintended or unwanted result. The pressures in the current Congress to again reform the law, to enact reforms like the Civil Justice Fairness Act and the Lawsuit Reform Act, and even bring back old discredited reforms like the amended Rule 11 only lately---reamended, serve as a counter to the philosophic impetus of the "justice for all" movement. Titles may be part of the problem. No one claims that their "reform" is intended to do injustice. No one is going to entitle their movement or their law "The More For Me And Less For You Act." Sometimes, perhaps too often, 246

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we get caught up in the rhetoric of reform, in the rhetoric of justice. This text has proposed that we look behind the face of the law for "Some Behavioral Implications of Legal Reform." It is submitted that what has been seen there does not bode well for those least able to use or claim the protection of the law. 247

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CHAPTER 6 END NOTES 1. Several times during the writer's 12 year tenure. as a Denver Police officer he was at the death scene of murdered officers. It is difficult to express the rage and futility that courses through one's being watching the mist of chilling blood rising from the bullet ruptured chest of a fallen friend. As trite as it may seem at the time, there is, however, the law and the oath to obey it. The point here is that those charged with the duty of enforcing the law should not be allowed to hide behind a shield of personal and p6pular disgust with criminal behavior and justify their acts in catching the "bad guy" with a claim of "necessary illegality." 2. In most jurisdictions death penalty trials are bifurcated into two phases. The first is the actual trial and the determination of guilt. In the second phase the same jury decides if the sentence should be death. In the latter phase, evidence that might not be admissible at trial can be used. 3. An interesting aspect of this study was that Hispanics were found (thought?) to comprise 9.2% (348,000) of crack cocaine users yet were only a small part of the convictions. 4. Plessy v. Feguson, 163 U S 437 (1896); Olmstead v. U.S., 277 U.S. 438 (1928); Betts v. Brady, 316 U.S. 455 (1942); Minerville School Dist. v. Gobitts, 310 U.S. 586 (1940); Colegrove v. Green, 328 U.S. 549 (1946) and Dennis v. u.s., 341 u.s. 494 (1951). 5. This task force was authorized in 1992 but was not actually organized until late 1993. This writer serves on the task force and chairs a subcommittee. 6. The conference had 438 participants listed. They represented 43 states and territories as well as related task forces from 21 states. The participants were primarily practitioners, including state judges and justices and judges from federal district and circuit courts (source, conference handbook) 248

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