by Neil Gorsuch
Where did the idea of three years of graduate education come from? It appears most states adopted the requirement at the behest of the ABA. In pushing states to adopt this requirement, the ABA emphasized that legal education must develop in students a mind attuned to the common law—an argument arguably not specific to three years as opposed, say, to two or four. The ABA also invoked the fact that the American Medical Association had proposed a four-year standard for physicians and reasoned that, because law, like medicine, is a complex field, legal studies should last for a comparable period—an argument that seems to have stemmed more from professional pride than empirical proof.
Even if these doubtful rationales once seemed sufficient to persuade states to mandate a monolithic three-year graduate course of study, do they really remain persuasive today? Competitive and consumer-friendly markets are usually characterized by a diversity of goods specialized to fit consumer needs and preferences—and markets with just one good of uniform character are often the product of a producer-friendly monopoly or some similar competitive failure. And while it would be wrong to suggest that all law school educations are identical, it might be worth asking whether three years (with a largely prescribed first year) is necessary for each and every law student. Recently, the ABA acknowledged the need for greater heterogeneity in legal education. And one starting place might be to permit students to sit for the bar after only two years of study, allowing students and employers alike to determine the value of an optional third year of law school. President Obama, himself a Harvard-trained lawyer, has promoted this concept.
Consider that in the United Kingdom the legal education market is a good deal more heterogeneous than ours. To qualify for practice, a student may either take a three-year undergraduate course or a one-year graduate conversion course. Meanwhile, further graduate educational options are available in a variety of fields (e.g., criminal justice, intellectual property, and human rights) for those seeking specialized skills. But none of this is essential. After the basic academic instruction, a student may decide to become a barrister or a solicitor. Depending on his or her choice, the student will then have to undertake additional training, often a one-year specialized educational course followed by a hands-on apprenticeship during which he or she will usually receive only modest compensation. But even the minimum wage presents a substantial swing from expending $50,000 or more on a year of formal legal education in the United States. This diversity of legal education options does not appear to be a threat to the rule of law in the United Kingdom—and it is difficult to see how it might be here.
Beyond that, we might also ask about the value of some of the more discrete accreditation requirements we impose on law schools today. In our zeal for high educational standards, we have developed a long list of requirements that every law school must satisfy to win ABA accreditation and it’s often unclear whether these many and various requirements can be justified on the basis of evidence of improved outcomes. Take just a few illustrations. Schools must extend extensive tenure guarantees to faculty, and full-time faculty must teach “substantially all” of a student’s first-year courses, even if adjuncts would prove just as good. If an American law school wants to offer something other than a traditional JD program, it must receive a special dispensation from the ABA council responsible for legal education. Then, too, there are the restrictions on the number of credits a student may take at any given time, and the rule that no more than a third of credit hours can be earned for study or activity outside the United States. And beyond even that don’t forget that while students usually may receive credit for unpaid internships, they generally may not earn credit for the very same internship if it offers pay and helps reduce their debt load.
Naturally, any revisions to our rules governing law schools would raise complicated cost-quality trade-offs. Some believe that the current American legal education regime is necessary to permit future lawyers to develop sufficient knowledge of legal doctrine and capacity for legal analysis. Justice Antonin Scalia, for example, once argued that “the law-school-in-two-years proposal rests on the premise that law school is—or ought to be—a trade school,” a premise he believed erroneous. Others defend the current system by citing familiar consumer-protection concerns. And others still point out that the third year offers opportunities to take elective courses in specialty areas of the law.
Admittedly, these seem good enough arguments to persuade a reasonable mind that at least some lawyers should undertake three years of graduate education. These also may be good enough arguments to justify imposing some significant restrictions on those who opt out of a third year (e.g., requiring on-the-job training for a period of years under the tutelage of a supervisor). But it’s far less clear whether these are sufficient grounds for concluding that everyone needs three years of graduate legal training, or legal training shaped by so many and such detailed accreditation requirements.
Commendably, a 2014 ABA white paper explored some of these questions and concluded that many current accreditation requirements do indeed increase cost without conferring commensurate educational benefits. As a result, the paper encouraged a shift from a regulatory scheme controlling so many detailed aspects of the educational process to a scheme focused more on outcomes and empirical cost-benefit analyses. And true to its word, the ABA’s section on legal education has begun relaxing at least some of its more extraordinary accreditation requirements. First steps, maybe, but steps in the right direction.
CONCLUSION
Lowering barriers to entry, ensuring judicial resolutions come more quickly and at less cost, and making legal education more affordable share the common aim of increasing the supply and lowering the price of legal services. All of these potential changes, too, are uniquely within our profession’s power to effect. Of course, meaningful change rarely comes easily, let alone when it requires a self-regulating profession to undertake self-sacrifice. But estimates suggest that inefficient policies and our professional regulations result in a roughly $10 billion annual “self-subsidy,” in the form of higher prices lawyers may charge their clients compared to what they could charge in a more competitive marketplace. Might not our willingness to confront candidly just how much of that self-subsidy is warranted prove a good test of our commitment to civil justice reform—and whether we as a profession wish to do good or merely do well?
A NOTE ON JURY TRIALS
The Sixth and Seventh Amendments guarantee the right to a jury trial, yet we have almost no trials anymore. Today, not even 2 percent of civil cases see a jury. Plenty of factors have contributed to this development. But one may lie in our own self-imposed rules. Today, for example, if people neglect to assert their right to a jury trial at the outset of a case, they are deemed to have waived it. This rule struck me and Judge Susan Graber, a former colleague on the standing committee that reviews federal rules of procedure, as odd. Our rules should encourage people to exercise their constitutional rights, not create barriers to their doing so. So when Judge Graber asked me to join her in sending the following note asking an advisory committee on the rules of civil procedure to consider a change, I was happy to say yes.
We write to suggest that the Advisory Committee on the Rules of Civil Procedure consider a significant revision to the rules concerning demands for a jury trial.
The idea is simple: As is true for criminal cases, a jury trial would be the default in civil cases. That is, if a party is entitled to a jury trial on a claim (whether under the Seventh Amendment, a statute, or otherwise), that claim will be tried by a jury unless the party waives a jury, in writing, as to that claim or any subsidiary issue.
Several reasons animate our proposal. First, we should be encouraging jury trials, and we think that this change would result in more jury trials. Second, simplicity is a virtue. The present system, especially with regard to removed cases, can be a trap for the unwary. Third, such a rule would produce greater certainty. Four
th, a jury-trial default honors the Seventh Amendment more fully. Finally, many states do not require a specific demand. Although we have not looked for empirical studies, we do not know of negative experiences in those jurisdictions.
We recognize that this would be a huge change, and we also recognize that problems could result, especially in pro se cases. Nevertheless, we encourage the advisory committee to discuss our idea. Thank you.
Alejandre-Gallegos v. Holder
This Tenth Circuit case illustrates the sadly familiar problems that arise when lawyers fail to provide even basic assistance for their clients. In this case, the government sought to deport Mr. Alejandre-Gallegos on the ground that he had committed a crime of “moral turpitude.” Mr. Alejandre-Gallegos went to the expense of hiring a lawyer to argue that he wasn’t guilty of such a crime. But the lawyer failed to provide anything approaching competent legal representation. Too often people get only as much justice as they can afford; sometimes they don’t even get that much.
Worried that he could be deported for his unlawful presence in this country, Santiago Alejandre-Gallegos sought discretionary relief under a statute that allows the Attorney General to “cancel” a deportation that would result in “unusual hardship” to an alien’s U.S. citizen family members. An Immigration Judge denied the request and so did the Board of Immigration Appeals. No matter how hard the hardship, the Board noted, an applicant can’t win cancellation of removal if he has been convicted of a crime involving moral turpitude. And, the Board observed, Mr. Alejandre-Gallegos has pleaded guilty to at least one such offense.
Now before us, Mr. Alejandre-Gallegos seeks to undo this decision but his attorney fails to give us any grounds on which we might. Counsel suggests the Board relied on improper evidence but doesn’t supply any citations to the record where it went wrong on the facts. He suggests that the Board applied the wrong legal standards but doesn’t cite any legal authority that might remotely support his claim. He even spends pages discussing another criminal charge against his client irrelevant to the one on which the Board relied. Neither are counsel’s shortcomings confined to such important things. His statement of related cases includes argument. He does not “cite the precise reference in the record where [each of his issues] was raised and ruled on” and his statement of the case includes no record citations at all. His brief contains no “summary of the argument.” He hasn’t even bothered to “alphabetically arrange[]” his table of authorities. We could go on.
Essentially, counsel pronounces that the Board mistook the facts and acted in defiance of law and leaves it to the court to go fish for facts and law that might possibly support his claim. This, of course, the court has no obligation and is poorly positioned to do. In our adversarial system, neutral and busy courts rely on lawyers to develop and present in an intelligible format the facts and law to support their arguments and “[t]he adversarial process cannot properly function when one party ignores its obligations under the rules.” For that reason it’s within the court’s power “to dismiss an appeal when the appellant has failed to abide by the rules of appellate procedure.” That’s the course we find ourselves forced to take in this case.
We confess reluctance about having to proceed so summarily and about having to chastise a professional colleague in this way. Everyone makes mistakes, and surely judges no less than lawyers. But the shortcomings here don’t just suggest a mistake, a few, or even a thoroughgoing disinterest in the rules of procedure. They suggest a lack of competent representation. For all we know from counsel’s garbled submission before us, his client may have a good claim or at least an arguable one: we just cannot tell. That worry occupied us so much that we decided to review counsel’s past filings in this court to see if his conduct here was (hopefully) anomalous. But the results proved even more disquieting. They revealed that for at least a decade counsel has represented in this court immigrants seeking relief from removal—and that for at least that long his filings in this court have consistently suffered from the sort of shortcomings present in this one. It turns out that this court has noted the problem time and again. It has reminded counsel of his professional obligations. It has admonished him. All to no effect.
At some point, this court has a duty to do more than observe, record, and warn. It has a duty to act. After reviewing the record before us, we are confident that time has more than come. Because we believe sanctions—including suspension from this court’s bar and restitution—may be appropriate, we direct the Clerk to initiate a disciplinary proceeding.
Mathis v. Shulkin
Access to justice problems sometimes come in more disguised form. Sometimes it’s not just the obvious cost or the difficulty of obtaining a good lawyer. Take this case. Under the laws passed by Congress, our veterans are supposed to receive affirmative assistance from the Department of Veterans Affairs when they apply for disability benefits. But in this case, the agency developed a presumption against veterans that seemingly appears nowhere in the law—all apparently for its own administrative convenience. This piece was the first dissent I wrote from the denial of certiorari (refusal to hear a case) after joining the Supreme Court.
Lower courts often presume that Department of Veterans Affairs medical examiners are competent to render expert opinions against veterans seeking compensation for disabilities they have suffered during military service. The VA appears to apply the same presumption in its own administrative proceedings.
But where does this presumption come from? It enjoys no apparent provenance in the relevant statutes. There Congress imposed on the VA an affirmative duty to assist—not impair—veterans seeking evidence for their disability claims. And consider how the presumption works in practice. The VA usually refuses to supply information that might allow a veteran to challenge the presumption without an order from the Board of Veterans’ Appeals. And that Board often won’t issue an order unless the veteran can first supply a specific reason for thinking the examiner incompetent. No doubt this arrangement makes the VA’s job easier. But how is it that an administrative agency may manufacture for itself or win from the courts a regime that has no basis in the relevant statutes and does nothing to assist, and much to impair, the interests of those the law says the agency is supposed to serve?
Now, you might wonder if our intervention is needed to remedy the problem. After all, a number of thoughtful colleagues on the Federal Circuit have begun to question the presumption’s propriety. And this may well mean the presumption’s days are numbered. But I would not wait in hope. The issue is of much significance to many today and, respectfully, it is worthy of this Court’s attention.
Hester v. United States
The Sixth Amendment guarantees that a jury will find all the facts necessary to support any prison sentence you receive. But today courts often issue massive financial restitution orders rather than mandate prison time. Can the government avoid the demands of the Sixth Amendment by seeking financial penalties rather than prison time? This excerpt, from a dissent from denial of certiorari, discusses that question.
If you’re charged with a crime, the Sixth Amendment guarantees you the right to a jury trial. From this, it follows that the prosecutor must prove to a jury all of the facts legally necessary to support your term of incarceration. Neither is this rule limited to prison time. If a court orders you to pay a fine to the government, a jury must also find all the facts necessary to justify that punishment too.
But what if instead the court orders you to pay restitution to victims? Must a jury find all the facts needed to justify a restitution order as well? That’s the question presented in this case. After the defendants pleaded guilty to certain financial crimes, the district court held a hearing to determine their victims’ losses. In the end and based on its own factual findings, the court ordered the defendants to pay $329,767 in restitution. The Ninth Circuit affirmed, agreeing with the government that the facts supporting a restitution order can be f
ound by a judge rather than a jury.
Respectfully, I believe this case is worthy of our review. Restitution plays an increasing role in federal criminal sentencing today. Before the passage of the Victim and Witness Protection Act of 1982, restitution orders were comparatively rare. But from 2014 to 2016 alone, federal courts sentenced 33,158 defendants to pay $33.9 billion in restitution. And between 1996 and 2016, the amount of unpaid federal criminal restitution rose from less than $6 billion to more than $110 billion. The effects of restitution orders, too, can be profound. Failure or inability to pay restitution can result in suspension of the right to vote, continued court supervision, or even reincarceration.
The ruling before us is not only important, it seems doubtful. The Ninth Circuit itself has conceded that allowing judges, rather than juries, to decide the facts necessary to support restitution orders isn’t “well-harmonized” with this Court’s Sixth Amendment decisions. Judges in other circuits have made the same point in similar cases. Nor does the government’s defense of the judgment below dispel these concerns. This Court has held that the Sixth Amendment requires a jury to find any fact that triggers an increase in a defendant’s “statutory maximum” sentence. Seizing on this language, the government argues that the Sixth Amendment doesn’t apply to restitution orders because the amount of restitution is dictated only by the extent of the victim’s loss and thus has no “statutory maximum.” But the government’s argument misunderstands the teaching of our cases. We’ve used the term “statutory maximum” to refer to the harshest sentence the law allows a court to impose based on facts a jury has found or the defendant has admitted. In that sense, the statutory maximum for restitution is usually zero, because a court can’t award any restitution without finding additional facts about the victim’s loss. And just as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would seem to follow that a jury must find any facts necessary to support a (nonzero) restitution order.