ASHCROFT AND REHNQUIST GO ON A SHOPPING SPREE:
The Problem With Choosing Jurisdictions and Judges Based on Predicted Results in the Sniper and Terrorism Cases

By MICHAEL C. DORF
Wednesday, Nov. 27, 2002

In both the D.C.-area sniper case and the war on terrorism, top government officials seem intent on shopping for law and judges that will be most favorable to their position.

The Eastern District of Virginia, the favorite forum for terrorism-related cases, is notoriously conservative, and the appellate court that reviews its decisions, the U.S. Court of Appeals for the Fourth Circuit, is perhaps even more so. Meanwhile, it has been well-publicized that the snipers will be tried in a death-penalty-friendly jurisdiction--Virginia--and not Maryland, despite the latter's greater number of victims.

Such forum-shopping by the government, though technically legal, violates the spirit of one of the basic principles of our legal system, embodied in the seminal 1938 Supreme Court decision in Erie Railroad Company v. Tompkins.

The Erie Decision: What It Means, and How It Is Relevant Here

Generations of first-year law students have struggled to understand the mysteries of Erie. But its core holding is easy to grasp: State courts, not the federal courts, are the final authority on the meaning of state law. One reason is respect for state sovereignty. However, the Erie opinion, authored by Justice Louis Brandeis, also invokes another principle: basic fairness.

Suppose state courts were to interpret state law one way, while federal courts--which have jurisdiction to hear some cases arising under state law--interpreted state law another way. Then identically situated litigants would receive different treatment based upon the fortuity of whether their case appeared before a state or federal judge. Worse still, because the jurisdictional rules give lawyers some latitude to choose whether their case is heard in state or federal court, lawyers could "shop" for the most favorable forum for their case.

The Erie decision was an attempt to ensure equal treatment. Regardless of whether a case was heard in state or federal court, the same body of law would apply.

After Erie, Opportunities for Forum-Shopping Remain

Of course, Erie did not eliminate forum-shopping from the American legal system. Different states' laws still differ, and often plaintiffs can choose in which of several states to sue. Naturally, they choose the one they hope will be best for them. (That is why so many of the nation's largest punitive damages awards have been issued by Alabama juries in counties selected for their anti-corporate sentiment.)

Similarly, within a state, the law often permits plaintiffs some choice about where to file, and lawyers again seek jury pools they expect to be sympathetic. Given the choice between bringing a claim in Manhattan or one of the other boroughs, a savvy attorney will heed the words of a character in Tom Wolfe's 1987 novel, "Bonfire of the Vanities," who wryly observed that a "Bronx jury is a vehicle for redistributing the wealth."

Judge-Shopping is Not Allowed

If the law routinely permits some measure of forum-shopping, it strongly disapproves of judge-shopping. In civil and criminal cases alike, the assignment of a case to one eligible judge rather than another is random. Typically names are taken from a wheel to ensure randomness.

To be sure, it is still unfair that two otherwise similarly-situated defendants will be treated differently because one ends up in "Hang-Him-High" Harry's courtroom, while the other appears before "Set-Him-Free" Lee. But at least we can attribute that unfairness to the luck of the draw.

It would be scandalous if the government (or the defendant) were to manipulate the assignment of judges to obtain a more favorable outcome than chance would dictate.

Indeed, earlier this year, Sixth Circuit Judge Danny Boggs created quite a stir by alleging similar misconduct by his colleagues.

Boggs dissented from the majority's ruling upholding the University of Michigan Law School's use of race in student admissions. In a "procedural appendix" to his dissent, he accused Chief Judge Boyce F. Martin, Jr., of departing from the Circuit's ordinary procedures for assigning judges, in order to engineer the outcome the Chief Judge favored. Judge Karen Nelson Moore--who joined the majority opinion--defended the procedure followed, and chastised Judge Boggs for airing the court's dirty laundry in public.

The U.S. Supreme Court will shortly decide whether to review the Sixth Circuit decision, although the charge that the procedures for selecting judges were manipulated is unlikely to have an impact on the high court's ultimate disposition of the substantive issue.

Whoever's right about what happened in the Sixth Circuit, however, all acknowledge that the selection of particular judges to hear cases should not be based upon how they are likely to rule.

The Government Goes Shopping for the Death Penalty

Attorney General John Ashcroft violated no rule of law when he announced that he would release sniper suspects John Muhammad and Lee Malvo to the custody of Virginia, rather than Maryland, authorities, so as to maximize the likelihood that they would receive the death penalty. (Maryland currently has a death penalty moratorium; Virginia not only has the penalty, but uses it frequently.) Nonetheless, there was something unseemly about Ashcroft's calculation.

There is nothing wrong, in principle, with choosing a forum based in part on the likely outcome. Suppose that a suspected war criminal faces the possibility of charges in his home country--with the likely result of a life sentence of house arrest in a palace--or outside his country--with the likely result of lifetime confinement under significantly harsher (but nonetheless minimally humane) conditions. Surely extradition to the outside country would be appropriate in such circumstances.

Yet in this example, the appropriateness of extradition stems from the fact that the home country appears uninterested in seeking meaningful justice. We suspect that trial on the suspect's native soil will be a sham.

In the sniper case, however, nobody doubts that Maryland--which also sought the first opportunity to try Muhammad and Malvo--sought justice on behalf of the snipers' victims.

An Analogy to the Legal Doctrine of Choice of Law

An analogy to the somewhat arcane "choice of law," or "conflicts of law," rules governing conflicts between different jurisdictions' laws is illuminating.

In the modern world, frequently a product is designed in one state, its parts are manufactured and assembled in several foreign countries, it is sold in a second state, and it causes injury in a third state. In the resulting products liability case, which jurisdiction's body of law should apply?

In a system of federalism like our own, different jurisdictions have different substantive rules of conduct. One state may hold manufacturers liable for any injury their products cause. But another may only impose liability for negligently designed or manufactured products.

Moreover, not all states follow the same choice-of-law principles--making the situation even more complex. Some may give primacy to the law of the place where the injury occurred. Others may ask which state, on balance, has the greatest interest in the dispute.

That's all legitimate. States are entitled to have not only their own laws, but their own choice-of-law rules, which judges can properly apply. What judges cannot do, however, is manipulate choice-of-law doctrines so as to select the body of law that favors the outcome they prefer. A judge cannot, for example, follow a choice-of-law principle that says "apply the body of law that makes it most likely that the plaintiff will win."

Attorney General Ashcroft's decision where to send the sniper defendants was not legally governed by choice-of-law rules. Yet perhaps he should have applied an approach rooted in the same principle of fairness that underlies choice-of-law analysis.

Under such an approach, the Attorney General might have asked which state has the greatest interest in the case. The answer would almost certainly have been Maryland, the state in which the most victims succumbed to the snipers.

Forum-Shopping in the War on Terrorism

The Justice Department appears to have been even more aggressive in shopping for favorable fora in the war on terrorism. For example, when the government discovered that Guantanamo Bay detainee Yaser Hamdi was a U.S. citizen, it transferred him to the brig at the Naval Station in Norfolk, Virginia. It appears that this location was chosen in part so that any habeas corpus petition Hamdi filed would be heard by the largely conservative federal judges of Virginia and the Fourth Circuit Court of Appeals.

As I explained in an earlier column, that strategy backfired at least temporarily when the case drew Judge Robert Doumar, who has resisted the government's sweeping view of its power to detain persons labeled enemy combatants. But in the end, the case will go to the quite conservative Fourth Circuit Court of Appeals. And over time, continuing to refer terrorism-related cases to these courts will very likely be favorable to the government.

Moreover, even if the Fourth Circuit or the U.S. Supreme Court denies the Bush Administration the powers it seeks in the Hamdi case, its strategy of forum shopping is likely to pay dividends with respect to most of the other detainees. By holding the captured Taliban and al Qaeda fighters in Cuba rather than on U.S. soil, the government is banking on the applicability of the Supreme Court's 1950 ruling in Johnson v. Eisentrager, which held that enemy aliens who have not entered the United States are not entitled to access to American courts.

The government breaks no law by seeking to have cases adjudicated (or not adjudicated at all) in places that will yield favorable outcomes. But there's a deeper sense in which the government is not playing fair.

Judge Shopping by the Chief Justice?

Last week, the three-member United States Foreign Intelligence Surveillance Court of Review, meeting for the first time since its nominal creation in 1978, reversed a crucial decision of the Foreign Intelligence Surveillance Act (FISA) Court.

The decision had insisted on the continued separation of surveillance for national security purposes and domestic law enforcement purposes. The appeals court ruled that FISA had never required such a separation, and that, in any event, the USA Patriot Act did away with any distinction between foreign and domestic surveillance.

The appeals court's decision has important implications for the balance we strike between national security and individual privacy. My focus here, though, is the court's composition. It consisted of three respected jurists: Sixth Circuit Judge Ralph Guy; Ninth Circuit Judge Edward Leavy; and D.C. Circuit Judge Laurence Hirsch Silberman. Pursuant to FISA, these three judges were chosen for this special assignment by Chief Justice Rehnquist. Is it an accident that he chose three highly conservative appointees of President Reagan?

To be clear, the Chief Justice did not violate any law if he selected these judges because he thought they would strike a balance that favored security over privacy. FISA vested discretion in him, and he chose to exercise that discretion in the manner he thought would best serve the national interest.

Nonetheless, just as the law generally treats some forum-shopping as inevitable while condemning judge-shopping, so in this instance, the Chief Justice's apparent decision to stack the FISA appeals court with conservatives seems dubious.

When the Attorney General seeks fora that will advance his agenda, we can console ourselves that fairness is achieved by the fact that defendants will also take advantage of the opportunity for forum shopping. (Defendants may be able to seek a change of venue, for instance). In other words, we can rely on the adversary system for some measure of evenhandedness. However, when tactical advantage is sought from within the judiciary, there is no counter-balance.

We expect the prosecutorial arm of the government to favor the claims of security and order over liberty and privacy. We expect the judiciary to play it straight. Lately, the former expectation has been confirmed to an arresting degree, while the latter appears to have been sorely disappointed.


Michael C. Dorf is Professor of Law at Columbia University.

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