Monday, March 30, 2009

All aboard the disinformation train

I really hate to do this, but the disinformation in the state Supreme Court race comes from all sides. It's one thing for folks to disagree about the significance of particular cases and the interpretive philosophies of the candidates.
It's another thing to characterize those with whom one disagrees as liars or uninformed.

Tom Foley, the blogger sometimes known as Illusory Tenant, is someone that I like and who often has interesting things to say. Most recently he accused Charlie Sykes of cluelessness ("riding the disinformation choo choo") and dishonesty ("why do these people lie?) with respect to a case called Ferdon v. Patients Compensation Panel and its announcement of a standard called rational basis scrutiny "with teeth" that is not "toothless" and that "has bite." Ferdon struck down limits on noneconomic damages in medical malpractice cases. Some of my criticism of the case can be found here.

This is the Sykes statement with which Tom takes issue. Referring to the Ferdon decision, Charlie wrote:

[Wisconsin Supreme Court Chief Justice Shirley Abrahamson] changed the court's standard for reviewing legislation to something called "rational basis with teeth" which essentially allows the justices to second-guess laws they don’t like ...

Not true, says IT, rational basis scrutiny has never been toothless. There is nothing to see here. Sykes statement is, he says, nonsense.

Actually, it's spot on.

Let me put this as gently as I can. The point, as Tom surely knows, is not whether anyone else has ever used dental imagery to describe equal protection analysis, but what the Court actually did in Ferdon. If Tom is suggesting that it was not an extraordinary decision that is wholly irreconcilable with the way in which courts usually treat equal protection challenges to distinctions drawn on the basis of a nonsuspect class and not involving the exercise of a fundamental right (and both of those things are legal terms of art, so lay commenters ought to watch where they tread), then he is thoroughly and flagrantly wrong.

Now, we can argue about whether the Ferdon approach is a good idea or a bad idea. We can argue about whether it adopts a standard that leaves judges with no coherent guidance as how to apply Article I, section 1 of the Wisconsin Constitution (although I don't think we can argue long about that). We can even argue - as some have - about whether the courts' traditional formulation of three tier scrutiny in equal protection cases adequately explains what they do.

But the notion that the legislature did not have a "rational basis" for enacting the malpractice caps that it did - as that term is traditionally understood and applied -is nonsense. One can only conclude the caps were "irrational" by engaging in a close analysis of and making a series of contestable empirical and policy judgments about whether these caps serve their intended purpose. This is why the Ferdon decision is so long. It doesn't spend page after page discussing legal standards. It spends page after page discussing the intricacies of malpractice caps. As Judge Diane Sykes put, if a law were truly irrational, it would would be easier to explain why.

But this type of analysis is precisely what courts do not do when applying rational basis scrutiny. They do not substitute their own judgment about what constitutes good public policy for that of the legislature.


illusory tenant said...

First of all, I asked why people must lie within the context of describing Sykes's notorious characterization of State v. Knapp. The Knapp court quite obviously did not ignore either Patane or Seibert. That was a lie.

But the notion that the legislature did not have a "rational basis" for enacting the malpractice caps that it did - as that term is traditionally understood and applied - is nonsense.

You're tilting against a straw man.

Abrahamson didn't say that the rational basis was lacking in enacting the cap per se, but rather that the rational basis failure obtained in that particular figure's creation of the two classes of persons:

"No rational basis exists for forcing the most severely injured patients to provide monetary relief to health care providers and their insurers."

As you well know, the question isn't simply whether the legislature's action is in and of itself rational.

The issue is whether the attendant effects of the legislative means toward its legitimate objectives satisfy equal protection guarantees by maintaining a rational relationship between those means and those objectives (the majority never questioned the legitimacy of the objectives at all, nor did it question the legitimacy of some cap).

In this case, the court determined that they didn't, because the nature of the two classes of persons created by the effect of the government's means broke the rational connection between the statute and its legitimate objectives.

Even so, it was Justice Crooks concurring who noted the per se arbitrariness of the amount of the cap itself (i.e., its irrationality) by tracing the legislative history, wherein caps had ranged from zero, to a $500k conditional cap, to $1m, to zero again, and then to $350k.

Abrahamson did not join Crooks's opinion.

As for the "dental imagery," its application is explained in considerable detail not only in the majority's opinion but in the copious literature and precedent cited in the footnotes.

I understand that the expression "rational basis with teeth" has been the impetus for a considerable amount of mockery on the part of Sykes and his fellow travelers, but the Wisconsin Supreme Court was hardly the first to either discuss or apply it.

All it means is that not all legislation will be presumed to survive rational basis scrutiny because, as the conservatives on the U.S. Supreme Court put it, it's not a toothless analysis (and even the strict constructionist is permitted to infer that "not toothless" is just another way of saying "having teeth").


Rick Esenberg said...


The type of withering scrtutiny of the fit between the means and the ends that the Court employed in Ferdon is completely inconsistent with traditional rational basis scrutiny. You passed Con Law. You should know that.

It's not just conservatives who think this. If you don't want to hear it from me, ask Peter Rofes.

Any cap will distinguish between those who can collect higher and lower damages. It is the purpose of the cap. That the legislature changed the cap from time to time reflects legislative disagreements but not irrationality.

I think I am probably the source of the mocking of the dental imagery. (I think I referred to carniverous review.) But the joke has a point. Telling judges that they ought to conduct rational review with teeth is not different that the deferential review employed in Matthews which was also "not toothless." Metaphors can be useful rhetorical tools, but, as I think Justice Reed said, they are not rules of law.

Sykes is right about Ferdon. Whether Ferdon is right is something we can debate but his description of is neither nonsense nor lying.

illusory tenant said...

Sykes is right about Ferdon.

You agree with Sykes about Ferdon, you mean. I get that.

And I also get that Justice Prosser was suspicious of the majority's introductory discussion of how other courts and commentators have portrayed rational basis scrutiny and its function.

He produced his authority (Laurence Tribe, of all people, although it isn't revealed precisely which authoritative sources Prof. Tribe is criticizing), and the majority produced its.

Sykes says Ferdon "changed the court's standard for reviewing legislation to something called 'rational basis with teeth.'"

That is, from rational basis to rational basis with teeth. Did it really? If anything, it simply appropriated from a number of other sources of authority an alternate descriptive label to the existing standard in the course of that introductory discussion.

Rational basis scrutiny already had teeth, the United States Supreme Court had previously instructed us; the Ferdon court wasn't performing the dental implant, which is what Sykes is evidently claiming.

See Justice Prosser's citation to Sambs v. City of Brookfield, the particular articulation of rational basis he says he would have preferred the court to rely upon: "The basic test is not whether some inequality results from the classification, but whether there exists any reasonable basis to justify the classification."

Which is exactly the inquiry the court performed, in finding no reasonable justification for the classifications produced by that particular cap amount.

Justice Prosser complains about obfuscation. But what would have been obfuscatory is for the court to have conducted some inquiry beyond that described in Sambs — to use Prosser's own example — but without explaining the broader context according to which the court was engaging in its analysis.

Perhaps the majority was too revealing of its hand. Had it not appropriated the "dental imagery," then its detractors would have been forced to adopt a different tack, I suppose.

Or else the same old tired one, of bellowing "liberal activist!" (at even Justice Crooks, in this case who, as noted above, surpassed the Chief Justice in terms of "liberal activism").

Sykes goes on (and he does go on, doesn't he): "[Something called 'rational basis with teeth'] essentially allows the justices to second-guess laws they don’t like."

This is an assertion of pure opinion, and there is no support to be found in Ferdon for the proposition that the $350k cap fell simply because somebody didn't "like" it.

The objective reasons for its failure are well documented and they can't simply be ignored in favor of Sykes's political premise/conclusion (as the latter are indistinguishable, their connexion unargued).

In any event, Sykes can feel free to explain how the Ferdon majority not only appended to the description of rational basis scrutiny but altered its substantive content to any meaningful extent.

Until then, I see no reason why anybody should accept his claim.


Rick Esenberg said...

Under traditional rational basis review, a court would not engage in an analysis covering dozens of pages to conclude that the legislature either picked the wrong strategy (caps) or the wrong amount for the cap and that this rendered the statute irrational.

The reason is rather obvious. Almost all legislation creates classifications. It distinguishes one group from another and to permit courts to engage in an exacting examination of the ends or the fit between means and ends will render all such classifications susceptible to invalidation. It will, in effect, reduce equal protection analysis to whether the courts "like" the line that the legislature had drawn.

Courts are uniquely ill positioned to decide whether there should be caps or whether the cap ought to be $350k or some higher or lower amount. Unlike stricter scrutiny of classifications drawn on the basis of fundamental rights or on the basis of a suspect class (i.e., one thought to be the object of invidious and irrational discrimination that somehow impairs its participation in the political process), the rational basis scrutiny that is traditionally regarded as appropriate would not have engaged in the exacting and polemical examination of the majority in Ferdon.

As far as Knapp goes, we went back and forth on that last year. Knapp is irreconcileable with Patane which is why the court shifted from federal grounds in Knapp I to state grounds in Knapp II.

Terrence Berres said...

Mr. Foley wrote "Perhaps the majority was too revealing of its hand."

Perhaps that leaves Mr. Sykes thinking he caught a glimpse of an agenda.

illusory tenant said...

"Knapp is irreconcilable with Patane"

A remarkable claim indeed, given the Court's division in Patane, where dissenters outnumbered the plurality.

By the way, here's your friend Sykes on Knapp II:

"Despite its reversal [sic], however, the State Supreme Court’s new majority -- with Butler writing the decision -- chose to ignore the high court’s ruling [in Patane]."

Still think the charge of dishonesty is unwarranted?

Rick Esenberg said...

Yes, I would. I have explained several times on this blog that given the expressed views of the plurality and the concurring justices, there seems to be no way that the current Court would recognize an intentional violation exception to the rule that Miranda violations don't require the suppression of physical evidence.

I think the Knapp II majority saw it the same way. That's why (I can think of no other reason) they shifted to independent state grounds.

You keep repeating the same talking points and they are just wrong.

George Mitchell said...

Well, at least we know (directly for her ads) that the Chief is tough on crime.

As for the dialogue between Rick and illusory tenant, Rick's conclusion is persuasive, i.e., "You keep repeating the same talking points and they are just wrong."

Brett said...

Let's not forget that the Fifth Amendment can exclude evidence stemming from confessions. Even Patane recognized that physical evidence obtained from an INVOLUNTARY confession is o.u.t.--why? because of the abhorrence of police beating confessions out of people and the need for deterrence. That need for deterrence is equally strong (if not stronger) for those who intentionally violate the law to obtain evidence (like Miranda). Kennedy would probably agree, and there's yer majority.

illusory tenant said...

It certainly would be helpful to actually have identified whatever "talking points" are under consideration prior to reaching the conclusion that they've been dismissed.

In the meantime, I join the wistful pronouncement expressed earlier by Prof. Esenberg: "Perhaps I expect too much."

Scot1and said...

With Ferdon, I believe that a point raised in Justice Crooks' concurrence merits some discussion. As he pointed out (par. 192), the Wisconsin constitution provides that:

"The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy."

"Every person is entitled to a certain remedy in the laws for all injuries, or wrongs . . ."

These are rights, afforded by Wisconsin's constitution that are placed within the scope of the judiciary. Frankly, I don't see how the legislative branch can impose any caps on any common law claim without offending the constitution. Thus, in my opinion, the claims of judicial activism in Ferdon, are unwarranted and are better termed judiciary protectionism as the legislature was the body of government attempting to exceed its authority.

Clutch said...

Apparently, the thesis that 'ignored' means ignored is a "talking point".

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