Beyond The Adversarial Models For Mental Health And Incapacity

I'm litigating an adult guardianship case. It isn't the first time I've done one. As a general rule, there is, at least, a lawyer for the person asking for a guardianship, a court appointed visitor (social work who sees what's going on), a court appointed lawyer for the person upon whom a guardian is to be imposed, and a court appointed guardian ad litem for the person to have a guardian impose, in addition to a judge and a judge's division clerk involved. A physician's letter from none of those people is preferred. There is an emergency guardianship option, but the usual process takes about two months. Sometimes more lawyers are involved if there are disputes over who should be appointed. Sometimes, adult protective services is involved.

On one hand, the concern that the process not put an adult in a subordinated position with reduced autonomy rights without adequate due process is legitimate. On the other hand, the process puts a lot of barriers in the way of getting help and intervention to people who, by definition, aren't able to reasonably manage their own affairs and are highly vulnerable to manipulation in any formal process. We put a lot of highly paid professionals in place to check and balance each other, instead of placing greater trust into fewer people at a lower cost. I have to think that this isn't the optimal system. We should have a system that is more pro-active and doesn't pose quite such high barriers to intervention, perhaps with more pro-active follow up and supervision of fiduciaries that extends beyond a paper record.

The thing is that, whether or not they get it, lots of people, maybe half or more, are going to spend some time in their lives when they need, or would benefit from, transitioning to having someone who can make decisions for them. An adversarial model for securing this situation, and a placing a premium on autonomy, which makes sense for most of one's adult life, even in times of physical illness, isn't optimal for lots of people at the end of their lives.

Mental health care, likewise, really ought to be more pro-active. And, the assumptions of the physical health care system, which is oriented towards a "cure" of temporary illnesses and injuries, really isn't appropriate for a large share of mental health care conditions which are congenital or at least permanent. Symptom management is the concern, not a "cure". The push for mental and physical health care parity may have been a good transitional way to leverage more insurance coverage and access to mental health care, but the truth is that they are fairly disjoint and efficiently providing each involves different professionals. The privacy concerns are different. The kind of treatment setting that is needed is different. We should have systems in place to pro-actively intervene in the face of predictable crisis situations. 

A Clever Research Design Tracks Corruption In Italy

It is possible to identify lies about birth dates in public records statistically, even if you can't tell which particular birth dates are lies. This trick was used to track honesty by region in Italy, and shifts in the honest of different regions over time.

Using census data, we study false birth-date registrations in Italy, a phenomenon well known to demographers, in a setting that allows us to separate honesty from the benefits of cheating and deterrence. By comparing migrants leaving a locality with those who remain in it, we illustrate the tendency of Italians to sort themselves across geographic areas according to their honesty levels. Over time, this tendency has modified the average honesty level in each locality, with relevant consequences for the distribution across geographic areas of outcomes like human capital, productivity, earnings growth, and the quality of local politicians and government.

Massimo Anelli, Tommaso Colussi, and Andrea Ichino, "Rule Breaking, Honesty, and Migration" 66(2) Journal of Law and Economics (2023) (Supplemental Data here). This closed access paper is analyzed in the comments at Marginal Revolution and at another blog that it links to discussing the paper.

Common Misconceptions About Law

This is a list of common misconceptions people have about the law (to be clear, every statement below is false):

Sources of Law

* The law is mostly the same everywhere.

* The law is the mostly the same everywhere in the U.S.

* Legal terms almost always mean exactly one thing no matter where they are used.

* The law mostly fits a criminal law paradigm of statutes that prohibit you from doing something and impose a punishment if you do that.

* The constitution tells you everything you need to know about the law.

* Only the U.S. Supreme Court has jurisdiction to decide the constitutionality of something.

* Usually, a determination that something is unconstitutional involves finding that a treaty, statute, ordinance, or regulation is unconstitutional.

* The law is mostly contained in statutes.

* It is rarely necessary to look at case law or regulations to determine the meaning of a statute.

* The "common law" is the same in every state.

* Only one state or country's law applies to a business operating on the Internet. In a variant of this, the most important way to determine which law applies to a business on the Internet is where its servers are physically located.

* The law is static and has changed only a little over time.

* Modern U.S. law is very similar to modern English law.

* The Declaration of Independence creates enforceable U.S. law.

* The U.N. Universal Declaration of Human Rights creates enforceable U.S. law.

* International law consists mostly of legal rules that can be litigated in international courts producing judgments that matter.

Judges

* Judges are heavily influenced by their personal feelings about litigants and their personal relationships to litigants and are strongly biased against particular people.

* Judges can do whatever they want and the person who wins is mostly determined not by what the law says but by which side has the best lawyers which is mostly a function of much each side spends on their lawyers.

* Family court judges are intentionally or ideologically biased against men.

* Judges are basically umpires with no independent ability to interpret the law in different ways.

* A judge's political philosophy and judicial ideology have no impact on how a judge rules in a case.

* Judicial decisions are purely a matter of legislating from the bench.

* Judge are being dishonest when they utilize "legal fictions."

Dishonesty

* Criminal defense lawyers are bad people who unethically try to make it possible for people guilty of serious crimes to avoid responsibility for their actions by being acquitted at trial of all of the charges against them.

* It is unethical to represent someone you as a lawyer know is guilty or liable for wrongdoing.

* Pleading not guilty in a criminal case when you are guilty is perjury.

* Lawyers are allowed to lie.

* Prosecutors are routinely punished when a court determines that they withheld exculpatory evidence from a criminal defendant in a case.

* Negotiated compromises are dishonest.

* Cops are legally required to tell the truth to criminal suspects.

* Cops almost always tell the truth in court.

* Cops are routinely punished by their employers or a court when a court finds that they violated a criminal suspect's constitutional rights.

* Perjury in court is frequently prosecuted criminally.

* People are more likely to tell the truth when they are under oath or are making a statement under penalty of perjury.

* You can make an evidentiary objection to testimony presented in court on the grounds that the person giving the testimony is lying.

Certainty

* The law mostly involves general principles that can be stated at a high level of generality and logically applied to any new situation.

* If you know the facts of a case with perfect certainty you can know the legal consequences of those facts with certainty. Conceiving of the law as rules rather than standards.

* The law has a clear answer to every hypothetical situation one can imagine.

* Legal questions that don't have clear answers are rare.

* Traffic laws clearly establish that one person is at fault and another person is not at fault in a car accident most of the time.

* Jury trials are highly accurate at reaching outcomes consistent with the true facts and the law.

Arbitration

* Arbitrators have to follow the law based upon the facts presented to them the way that judges do.

* Arbitration awards can be reviewed on the merits in an appeal.

* Arbitration is usually less expensive than going to court.

* Arbitration is usually much faster than going to court.

* Arbitrators are not more biased in favor of one side over the other than judges are.

* You can only be compelled to arbitrate a dispute if you sign a contract agreeing to arbitrate the dispute.

* Only contract disputes are subject to arbitration.

Criminal Justice

* Criminal cases can be filed only if the victim files a complaint with a law enforcement officer.

* People who are released from prison after having their convictions overturned are automatically entitled to substantial compensation.

* People who are acquitted in criminal cases usually receive compensation for their legal fees and the disruption that their lives experienced.

* The police and prosecutors have an enforceable legal obligation to prevent, investigate, and prosecute crimes committed against you, if they can.

* People who commit crimes other than murder are usually caught and punished for their crimes.

* When a criminal law is repealed, people incarcerated for violating that law are routinely released from prison.

* The fact that a witness recants testimony provided in a criminal trial that gave rise to a criminal conviction makes it highly likely that the person convicted will have their conviction vacated and be released from prison.

* Prosecutors routinely cooperate in having wrongful convictions which they secured overturned.

Finality

* Mistaken findings of fact made in a trial can usually be corrected in an appeal.

* Mistakes made in hearings and trials can usually be corrected later, and information provided in hearings and trials can usually be supplemented after the fact. 

The Value Of Legal Training

* Lawyers are mostly charging people for the written documents that they produce.

* Any reasonably literate person can quickly learn what they need to know to effectively act as their own lawyer with a modest amount of self-study on the Internet.

* Doing legal work yourself saves money while also giving rise to few risks.

* Non-lawyers can learn to be competent judges with tens of hours to a couple hundred hours of training.

* When you have a dispute with someone, you can have a lawyer write the person you have a dispute with a letter for a minimal fee or no legal fee and the other person is likely to concede that you are right and cooperate.

* People who win legal disputes usually have their attorney fees awarded to them in the United States.

* A large share of losing lawsuits fit the law's description of a legally frivolous, groundless, or vexatious lawsuit.

The Effectiveness Of The Law And Justice

* The law is self-executing.

* People rarely get away with breaking the law.

* People almost always conform the behavior they would have taken otherwise to what the law requires. The law powerfully influences everyday behavior.

* The law almost always produces fair outcomes, unless someone incompetently makes a mistake in applying it.

* Every wrong has a legal remedy.

* All violations of constitutional rights and obligations have a legal remedy.

* There is always someone who is legally liable for the harm caused by an accident.

Contracts

* Economic pressure is enough to make a contract involuntary and invalidate it.

* Statements made by someone involved in a circumstance that gives rise to a legal case that aren't corroborated in writing aren't "proof."

* Contracts are never binding unless they are in writing.

* Contracts are only binding if you have read them and understood their terms.

Miscellaneous Other Specific Legal Issues

* Obligations to a child depend on the nature of the events that led to the child's conception and the relationship between the parents.

* Children must always take the surname of their father.

* In the United States, illegitimate children can't inherit from their fathers.

* You can't be an intellectual property infringer if you don't make a profit and give credit to the source of the work.

* Bank deposits are basically currency in a safe waiting for you to need to use it.

* Debts for fraud and other willful misconduct are automatically non-dischargeable in bankruptcy without any need for the creditor to take legal action to establish the nature of the debt in the bankruptcy case.

* Non-citizens don't have legal rights.

* The doctrine of "corporate personhood" usually hurts the average person in a legal dispute with a big business.

* People who engage in criminal conduct or civil wrongs in the course of their employment by a corporation are immune from liability for their actions.

* The U.S. Constitution, the Second Amendment to the U.S. Constitution, and the Declaration of Independence create a legal right to overthrow an unjust government.

* Texas has a right to secede from the United States.

We Need A Takings Jurisprudence For All Constitutional Rights

In the extremely conservative 11th Circuit, neither the individual law enforcement officers involved nor the government has any liability in this fact pattern:

Sosa has lived in Martin County, Florida, since 2014. Things did not start well for him there. In November of that year, a Martin County Sheriff’s deputy pulled Sosa over for a routine traffic stop. During the encounter, the deputy ran Sosa’s name through the Office’s computer system. 

The computer told the deputy of an outstanding 1992 warrant issued out of Harris County, Texas, for a “David Sosa” in connection with the wanted Sosa’s conviction for selling crack cocaine. The warrant described the wanted Sosa, including his date of birth, height, weight, tattoo information (he had at least one), and other details. When the deputy went to arrest Sosa on the warrant, Sosa pointed out that his own date of birth, height, and weight did not match the information for the wanted Sosa and that, unlike the wanted Sosa, he had no tattoos. The deputies arrested Sosa, anyway, and took him to the station. 

While detained at the station, Sosa told two Martin County jailers that he was not the wanted Sosa. And he explained that the wanted Sosa’s identifiers differed from his own. Then a deputy fingerprinted Sosa and determined that he was not the wanted Sosa. So roughly three hours after Sosa was initially detained, he was released. 

Three-and-a-half years passed. Then, the same thing happened again—only this time, Sosa was not lucky enough to be released within three hours. On April 20, 2018, a different deputy of the Martin County Sheriff’s Department, Deputy Killough, pulled Sosa over for a traffic stop. When Deputy Killough ran Sosa’s name, he discovered the same 1992 open warrant. Sosa explained that he was not the wanted Sosa and told Deputy Killough he had previously been incorrectly arrested on that warrant and released when deputies realized the error. Sosa again noted that he and the wanted Sosa did not share the same birthdate, Social Security number, tattooed status, or other identifying information. But once again, his explanation did not work; Deputy Killough arrested Sosa and impounded his truck anyway. 

When Deputy Killough took Sosa to the Martin County jail, Sosa “repeatedly explained to many Martin County employees . . . that his date of birth and other identifying information [were] different than the information on the warrant for the wanted . . . Sosa.” Among those Martin County employees were Deputy Sanchez and the other Martin County deputies in the booking area. They wrote down Sosa’s information and told him they would follow up on the matter. 

But Sosa spent the remainder of April 20 in jail. 

The next day, Sosa appeared by video before a magistrate judge. Though Sosa tried to explain the mistaken identity, “several Martin County jailers threatened him and told him not to talk to the judge during his hearing.” As a result, Sosa “thought it was a crime to talk to the judge.” 

Sosa spent the rest of that day in jail. 

And then he spent the next day in jail as well. 

Finally, after detaining Sosa for three nights, deputies fingerprinted him on April 23 and released him in the late afternoon. In the meantime, Sosa missed work and had to pay to retrieve his truck from impoundment.

In a system based on the jurisprudence of 5th Amendment takings, the government whose law enforcement officers arrested Sosa would have liability to Sosa because he was deprived of his liberty and incurred funds to retrieve his truck from impoundment when he was an innocent man and gave the authorities every opportunity to confirm that fact immediately.

But, the law instead imposes liability not on the entity in most cases, but only on its employees, and only in cases where they intentionally violate a well-established constitutional right. So, if the system is broken that that means that someone is deprived of liberty without deserving it, they have no remedy. 

Even if their constitutional rights are intentionally violated, as a result of the court created doctrine of qualified immunity, the victim of this conduct has no remedy unless previous controlling case law had held in a factually similar case that the constitution doesn't permit this conduct. And, since qualified immunity can be invoked before the question of whether a constitutional right have been violated or not comes up, the system intrinsically prevents the scope of constitutional rights of developing naturally in the case law.

This rule of law is unjust and fails to adequately protect the people who most deserve the constitution's protections. It is very doubtful that the Founders would have approved of this approach had they foreseen it.

The dissent argues that even under existing law, Sosa is entitled to relief, stating (emphasis mine, citations omitted):

[T]he factual allegations in Sosa’s complaint must establish two things: (1) the deputies violated his constitutional rights by detaining him for three nights and days on a warrant for a different David Sosa when the deputies knew or should have known that he was not the wanted Sosa; and (2) those rights were “clearly established,” in that “every reasonable official would have understood that what he [wa]s doing violate[d] that right.”

As I explain below, Sosa’s complaint does both.

But, the hurdle was too high in the first place. It should be sufficient to show that Sosa was not the individual wanted in the warrant and that he was detained and forced to incur monetary charges. This ought to entitle him to full compensatory damages and an apology.

This strict liability standard might be high to impose personal liability upon law enforcement officers, but it shouldn't be to high to impose upon the government directing those officers and establishing the systems that led to his wrongful detention.

Should Bankruptcy Spite Exploitive Lenders To Consumers?

The notion that firms who lend more to consumers than they can reasonably repay should not have valid claims in bankruptcy has a certain charm and elegance to it.

Consumer financial protection law is dominated by ex-ante, contract-centered regulatory measures. But these measures largely fail to curb lenders' incentive to lend beyond consumers' ability to repay. 

The Article thus suggests an alternative approach: discouraging lenders from extending loans that cannot be repaid by dismissing the imprudent lender's claims in consumer bankruptcy. 

I argue that regulating underwriting decisions through bankruptcy is normatively desirable because it cuts through the artificial separation between consumer finance law and consumer bankruptcy law. By the same token, it not only overcomes the autonomy and effectiveness concerns attached to traditional consumer finance regulation, but may also enhance the internal coherence of consumer bankruptcy law.

Abigail Faust, Regulating Excessive Credit (Wisconsin Law Review, Forthcoming) on SSRN (December 2022).

Easy Legal Questions That Turns Out To Be Hard

There are some legal questions which sound like they should have easy answer which in fact are complicated and difficult question. Some examples:

1. The law related to trees on or near property lines that overhang the boundary line.

2. The tax and employment law related to remote work.

3. The question of that laws apply to business conducted over the Internet.

Where Did Originalism Come From?

The reality of the history of the originalist movement in legal history, and the myth about its origins are quite different.

Empirically, the paper shows that the realigning GOP’s originalism grew directly out of political resistance to Brown v. Board of Education by conservative governing elites, intellectuals, and activists in the 1950s and 1960s.

From here via Fully Myelinated. 

The Independent State Legislature Theory

It is stunning that this fringe theory has at least three backers on SCOTUS and could become law soon. The theory is also contrary to past SCOTUS precedents.

This Essay explores historical evidence from the Founding Era underlying Art. 1, Sec. 4 of the US Constitution (and related clauses) that delegate certain powers to state legislatures in making federal election laws. The article shows that far from empowering the state legislatures, the US Constitution was meant to curb state legislative supremacy and confirm the subordination of state legislatures to the checks and balances embedded in the individual state constitutions. It shows that the Independent State Legislature Theory is contrary to both the theory of constitutional government and the practices of state legislatures in making federal election laws.

Rosemarie Zagarri, The Historian's Case Against the Independent State Legislature Theory Boston College Law Review (March 2023) (Forthcoming).

Related:

The federal judiciary is increasingly fragmented into red courts and blue courts. Democratic presidents overwhelmingly appoint judges in blue states, while Republicans mostly appoint judges in red states.

This is a recent phenomenon; it was much less true even a decade ago.

It is accelerating. And it is likely to corrode both the rule of law and the public’s perception of it. In this Essay I document the phenomenon, explain why it is dangerous, and offer some thoughts on how to fix it.

Mark A. Lemley, Red Courts, Blue Courts on SSRN (2022).

From the body text of Leley's article:

Biden may be shying away from appointing judges in red states because of the strong historical norm that home-state senators get a quasi-veto (called a “blue slip”) over at least district court judge nominations. If a state has two Republican Senators, they may simply not be willing to allow a vote on a Biden nominee. And because all the votes today are so close, they depend on at least one judiciary committee Republican vote and generally one or two floor Republican votes. Losing a couple of Republican votes because the home state senators object might doom the nomination and will at the very least make it harder. 

Blue slips have less power over appellate nominations, which don’t come from a single state. That is one important reason appellate courts are less divided than district courts. (Another is that presidents care more about appellate judgeships and so may be willing to fight harder to appoint people to the appellate courts even in hostile jurisdictions).

The blue slip procedure needs to go. It’s not clear it was ever a good idea to give individual senators that much power. 

But at least in the past it was mostly used to object to particular individuals, or perhaps as a delaying tactic, rather than as a way to prevent appointments from the opposite party altogether.

Sexual Harassment As Theft From The Corporate Employer

This is a fascinating concept that superficially seems attractive, at least as an internal philosophy of the business regarding how to treat these cases. 

But this approach as a basis for rules of law does seem to undermine the theoretical basis for relief for victims of sexual harassment from the offender's employer, on the theory that the harasser is an agent of the company for which it is responsible. Normally, a principal does not have liability for an agent's conduct that is ultra vires. 

A model where the employer and offender are both responsible, and the offender then has a duty to indemnify the employer for the damages it suffered, would seem to better address that issue, even though it aligns the employer and offender against the victim in the first instance, even if the employer's defense of the offender's conduct is temporary. In the context of the article, it isn't clear that the third objection to this theory has really been overcome and accurately describes the likely corporate response.

This article suggests how sexual harassment should be treated by companies as a civil misappropriation, embezzlement, conversion, or theft - as well as a civil rights violation. Additionally, some payments associated with sex-based harassment should be considered corporate waste. 

The misappropriation approach considers not only how sex-based harassment constitutes a civil misappropriation, embezzlement, conversion, or theft, but it also responds to three anticipated objections to sexual harassment as a civil misappropriation: (1) sexual harassment is a minor corporate expense; (2) identification of sexual harassment as civil misappropriation of corporate human assets commodifies targets; and (3) this new concept will change neither corporate responses nor corporate cultures. First in response, sexual harassment is not a minor expense but one that costs companies billions of dollars annually. It is, therefore, in a company’s financial interest to treat the problem as a theft of valuable assets. Second, only corporate failure to recognize the market value of female professional talent dehumanizes people. Almost all human beings engage in work and, men in particular, are valued for their work. Thus, the misappropriation solution puts targets on the same plane as privileged men, valued for their market productivity (as opposed to sexual or reproductive utility). Third, the identification of sexual harassment as a theft, conversion, embezzlement, or misappropriation, as well as a civil rights violation, encourages companies to modify and improve their remedial responses, corporate culture, profitability, and transparency. 

By making corporations and harassment targets potential allies, instead of adversaries, the reconception of sex-based harassment as a misappropriation of corporate human assets incentivizes new collaborations for social and economic justice.

Jennifer Ann Drobac, "The Misappropriation, Embezzlement, Theft, and Waste of Corporate Human and Financial Assets: Sexual Harassment Reconceived" —ABA J. LAB. & EMP. L.— (anticipated 2022).

State Action, State Inaction, Standing, And Individual Rights

The Legal and Political Theory Of Constitutional Rights

Protections From Government Misconduct

U.S constitutional rights, almost without exception, only provide protection against individualized personal harms caused by "state action", i.e. from wrongs fairly attributable to the government.

These protections are imperfect. See, e.g., the City of Greenwood Village case, qualified immunity, the lack of vicarious liability on the part of government employees for constitutional rights they violate in the course of their official duties, the availability of money damages only for intentional violations of constitutional rights (with remedies that are far more limited for rights not articulated in the constitution), undue deference to the testimony and legal stances of government officials, etc.

But, this does not mean that these protections are worthless. Governments pay billions of dollars a year in damages for violations of constitutional rights, and not infrequently change their unconstitutional policies and practices, either under a consent decree in litigation or by court order. Criminal charges are dismissed or reduced for violations of the constitutional rights by law enforcement officials every day that the courts are open, and convictions are reversed for violations of constitutional rights in the criminal justice process on a regular basis even if they don't make up a huge percentage of all convictions. 

While not all wrongs by government actors are remedied, the share of the most serious wrongful government actions that significantly harm particular individuals that are remedied is not negligible. Many people wrongfully convicted of crimes and sentenced to long prison terms or to death are eventually (often painfully slowly) exonerated.

The due process rights afforded to the people routinely prevent or remedy unfair or arbitrary government actions and regulations. Many instances of big dollar harm caused by wrongful government conduct produce economically significant monetary settlements paid by, or judgments against the government, and the government almost always eventually pays all of its legally determined obligations (and vast numbers of legal obligations that are never legally adjudicated as well). In some areas of law, like immigration, the quality of justice provided is lower. In other areas of law, like condemnation of private property for public use, the quality of justice provided (while rarely perfect) is comparatively consistent and adequate.

Protections From Private Misconduct

The theory is that Congress and state governments protect people from wrongs to their individual rights committed by non-state actors and that we rely on the political process to assure that elected officials make this happen, by having legislators pass laws necessary to do so, by having executive branch and judicial branch officials carry out those ordinary laws.

The constitution does not provide protections for you life, liberty, or property from non-governmental actors. It is an international outliner because it does not compel law enforcement to take action to enforce the criminal laws that are on the books for the benefit of any particular individual. See Castle Rock v. Gonzales. It does not guarantee due process when a private party wants to employ self-help to interfere with your property rights or your freedom of speech. 

In many cases, even when the authority of the state is invoked in litigation to enforce a right against a private individual in court, this is not considered "state action" for purposes of determining whether it abridges your constitutional rights in a manner that you have a legal right to enforce.

Most of the time, the system works. The circumstances under which non-constitutional law authorizes self-help without due process or interference with other private person's lives without your consent are few. Most of the time, law enforcement and prosecutors enforce the criminal law to the extent that they are able to do so. Most of the time, when the criminal justice system fails to act. 

When there is a fairly broad consensus on what private conduct should be regulated by law and what due process and other limitations should limit private law and criminal law regulation of that conduct, this isn't a problem and elected officials do the right thing. But as the United States is seeing its normative consensus break down before our eyes, and a willingness to use tactics that earlier generations would have disavowed has emerged, simply relying on the political process to protect private law rights has become increasingly problematic.

The Problem Of Unrestrained Abuses That Government Is Supposed To Prevent

But, the legal and political theory behind the U.S. constitution and the American political economy provides little backstop, apart from the Second Amendment right to bear arms, against individualized harms caused by means other than state action, or by the state's failure to enforce laws that it has a near monopoly right to enforce.

Under U.S. law, the state may, even with ill intention, deny a person the full protections that they are supposed to be afforded to protect their life, liberty and property from harm at the hands of non-state actors. 

The government may decline to provide private causes of action for private violations of an individual's rights that would be actionable deprivations of constitutional rights if the government were the party that deprived an individual of their rights. The government may, without violating the constitution, authorize or prohibit individual acts of self-help that the government could not take itself. 

The government may even, in many cases, allow its courts and the remedies available to enforce court judgments to be used to take actions violating individual constitutional rights that the government could not violate itself, without providing the individual whose rights are violated with a constitutional law remedy, or even, any remedy at all.

Increasingly, government actors are intentionally conspiring with private actors to use these methods to undermine their political opponents, and to carry out policies, in ways that they could not do alone as a result of the U.S. Constitution.

The Unavailability Of Redress For Illegal Governmental Operations 

Individual Constitutional Rights

The most of the litigation involving the United States Constitution involves individual rights that it establishes and regulates, primarily involving the First, Second, Fourth, Fifth, Sixth, Seventh, Eight, Eleventh, Thirteenth, and Fourteenth Amendments to the United States Constitution. The first ten amendments were added in 1791, with the 11th Amendment adopted not long afterwards and the 13th and 14th Amendment adopted not long after the U.S. Civil War.

A few provisions of the pre-amendment United States Constitution of 1789 also establish or regulate individual rights that give rise their utilization in litigation: the powers of Congress in Section 8, the powers denied to Congress in Section 9, and the powers denied to the states in Section 10 of Article I, he jurisdiction of the federal courts, the jury trial and venue requirements for federal crimes, and the definition of treason in Article III, the full faith and credit clause, the privileges and immunities clause, and the extradition process in Article IV, and the Supremacy Clause of Article VI.

There are a variety of ways that someone harmed by a violation of their individual constitutional rights can seek remedies, the most common of which are (1) a suit under 42 U.S.C. § 1983 for damages caused by an intentional violation of a constitutional right under color of state law, (2) a direct appeal of a criminal conviction on the grounds that it was obtained in violation in a constitutional right after that right was invoked by a convicted defendant in a trial court proceeding in a criminal case, (3) a writ of habeas corpus asserting that someone is detained under color of state law under a manner that is unconstitutional, and (4) an action for a writ of mandamus, an injunction, or declaratory judgment that clarifies that some sort of state action in unconstitutional and insisting the the government act properly. This list isn't exhaustive, but it covers the main remedies.

Other Aspects Of The Constitution

The remainder of the United States Constitution of 1789, and the remaining seventeenth amendments to the United States Constitution, relate to the political and electoral process, has been repealed, clarifies default principles of interpretation that are rarely expressly invoked (the Ninth and Tenth Amendments), or provide for situations (domestic quartering of soldiers in private property under the 3rd Amendment, and the Republican government clause) that almost never arise and are to some extent redundant. 

In most cases, however, the doctrine of "standing to sue" limits the extent to which these parts of the Constitution can be litigated in court because an ordinary citizen with no particularized harm from violations of these parts of the constitution other than as a citizen, a voter, or a taxpayer, similarly situated with everyone else, is prohibited from enforcing these legal requirements in court. 

The main enforceable protected individual right under this part of the constitution is the individual right to vote. But, because everyone is often equally harmed, for example, by improper government spending or misapplications of the political process, the end result is often that violations of these aspects of the law can be carried out with impunity.

Also, even when someone has standing to seek to redress misconduct in government operations, the violations are often considered to be non-justiciable, for example, because they are "political questions" or because the person engaging in misconduct has some sort of absolute or qualified immunity from liability for the conduct in question. 

Quote of the Day

Not a shocking conclusion, but it captures an insight I've never articulately quite like this author does, which rings true.

Judges frequently resort to three adjudicative tools to decide cases: precedent, principles, and presumptions. First, courts consider precedent and draw analogies between past decisions and the case before them. Second, judges evaluate legal principles. They employ multi-factor balancing tests and frameworks to reconcile competing principles. Third, judges create presumptions that ease evidentiary burdens and provide default ways to resolve disputes. . . .

Presumptions correct legal frameworks and multi-factor balancing tests that misfire, support principled asymmetries, promote access to justice, and shape choice architecture in adjudication.

- Terry Skolnik, Precedent, Principles, and Presumptions 54:3 UBC Law Review 935 (2021).

Women Scarce Among Most Cited Legal Scholars

I'm not surprised that women are very underrepresented among the most cited legal scholars, but I am surprised that it is so extreme.

Retired federal appellate judge and law professor Richard Posner is the most cited U.S. legal scholar on record, followed by Harvard University law professor Cass Sunstein, and the late New York University law professor Ronald Dworkin.

That’s according to Yale Law librarian Fred Shapiro, who analyzed the law review article and book citations of thousands of legal academics and jurists for a new list of the 50 most-cited legal scholars of all time, which appears in the latest edition of the University of Chicago Law Review.

Shapiro’s list, which includes citations through 2020, includes many familiar names, including Harvard law professor Laurence Tribe at No. 4; former U.S. Supreme Court Justices Oliver Wendell Holmes Jr and Antonin Scalia at Nos. 6 and 39, respectively; and former Yale law dean and federal appellate judge Guido Calabresi at No. 25.

But it’s also generating discussion among legal academics about who’s all but missing from the list: women. University of Michigan law professor Catharine MacKinnon is No. 40. Stanford law professor Deborah Rhode, who died earlier this year, is the only other women to make the cut, at No. 45.

From here.

Quote of the Day

[W]hile Van Buren won’t protect all computer users from extremely overzealous prosecutors, Barrett’s opinion does prevent some of the more absurd outcomes that Kerr and others warned about in their briefs.

Ideally, Congress would update the 35-year-old Computer Fraud and Abuse Act to make sure that minor transgressions — the sort that are best addressed by company human resources departments and not by federal prosecutors — do not lead to criminal charges. But the United States Congress isn’t exactly a fully functional body right now.

And so, in the absence of a working legislature, Barrett’s opinion provides some relief to anyone who is afraid they might be arrested for not being entirely honest on their Tinder profile.

From Ian Millhiser at Vox (June 4, 2021).

This quote perfectly captures one of the central issues of legislative interpretation: 

How should the courts deal with a badly drafted law that read naively makes unreasonable demands that weren't really intended by any drafters?

Like the author of the Vox article, I agree that preferring an interpretation that leads to be better result is a better approach that slavishly following the naive reading of the statutory text to an unreasonable conclusion.

This quote also succinctly explains why the federal courts are so much more powerful in the United States, than in other countries, even when they are not making rulings on constitutional issues. 

Passing federal legislation in the U.S. is more difficult than passing laws in almost any other modern democracy in the world. So, because it is so hard to change the status quo in the U.S., determining what the status quo means in statutory interpretation cases is more important.

In contrast, in most countries, if ill-drafted legislation is discovered, it is relatively easy for the legislature to promptly correct it, and the issue would frequently not even lead to much partisan disagreement.

Another Quirk of Arbitration

Arbitrators can administer oaths and issue subpoenas under the relevant section of the Uniform Arbitration Act (adopted in some form in 35 states and codified in Colorado at Colorado Revised Statues § 13-22-217(1)). 

The Act states in pertinent part: 

An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths. A subpoena issued under this section shall be served in the manner for service of subpoenas in a civil action and, upon motion to the court by a party to the arbitration proceeding or by the arbitrator, enforced in the manner for enforcement of subpoenas in a civil action.

Perjury in those cases could be prosecuted by a District Attorney or the state's Attorney General as a crime. 

As the Acts note, it takes a government appointed judge's order to enforce the subpoena. 

This language of the Uniform Arbitration Act is interesting because usually oaths can only be administered by government officials who take oaths of office themselves, or by a notary public who takes an oath of office upon receiving a government approved commission. 

The power to issue subpoenas is likewise usually limited to government appointed court clerks who swear an oath of office, to state licensed attorneys who swear an oath of office and sometimes to certain other sworn government appointed enforcement officers of regulatory agencies. 

But being an arbitrator isn't a regulated profession under the Uniform Arbitration Act, or under the laws of the vast majority of states. The parties to the contract decide who serves in that capacity. 

A nineteen year old high school dropout with felony sedition and perjury convictions who is an undocumented immigrant and is incarcerated at the time of the arbitration is still legally eligible to serve as an arbitrator. One can't be "disbarred" from serving as an arbitrator either.

This significance of this is somewhat diminished by the fact that both of these powers require the intervention of a judge in a court proceeding to be enforced, however (as does enforcement of an arbitration award involuntarily).

But, the Uniform Arbitration Act didn't have to make this unique exception. Other options could easily have been chosen instead.

Offering unsworn false testimony in an arbitration hearing would still usually constitute the crime of fraud. And, the perjury act could similarly have been amended to provide that unsworn testimony in an arbitration proceeding was punishable as perjury if an unsworn affirmation to that effect was made in the proceeding.

The Uniform Arbitration Act could have provided that arbitration subpoenas are issued by the clerk of the court of general jurisdiction where the arbitration is being held, or by a licensed attorney for a party in the case, just as it would be in a regular court case. 

Indeed, there is much to be said for imposing such a restriction, because how is an average person receiving a subpoena issued by an arbitrator supposed to know that this person, who outside of a contract written by private individuals is nobody special, has the power to exert this authority over them.

Alternately, the Uniform Arbitration Act could have required arbitrators acting under the Act to be commissioned by the state in a manner similar to that of a notary public or an attorney, subject to some sort of minimum standard to be appointed and subject to having the commission revoked for misconduct.

As a practical matter, it isn't a big problem. 

Almost no one is ever prosecuted for perjury for testimony in a judicial or quasi-judicial proceeding anyway, and perjury prosecutions for lying in arbitration proceedings are vanishing rare, so the administration of oaths or affirmations under penalty of perjury has little practical effect.

Likewise, while arbitrators could just be anybody, and this provision of law could be used to manipulate arbitration proceedings for improper purposes, for example, to gain access to otherwise confidential information in connection with a bogus arbitration which is really just a pretense to gain subpoena power, for whatever reason, this is very rarely done. 

The vast majority of arbitrators are attorneys, or if they are not attorneys, are distinguished professionals who are familiar with the Uniform Arbitration Act and Federal Arbitration Act and their roles within it.

Few arbitrators actually issue subpoenas on a regular basis, even though they can, and many don't bother to swear in witnesses, especially if they are not attorneys. And, there are reasons to have non-attorney arbitrators, especially in employment or construction or accounting or appraisal or marital dispute arbitrations with a narrow scope where the technical or religious expertise of the arbitrator is more important than general legal expertise.

But these anomalies are nonetheless notable.

Judging When You're Not Sure Which Outcome Is Best

The Legal Theory Blog highlights a law review article on a fascinating issue about which little has been written:

Much has been said in legal discourse about the challenge of empirical uncertainty—uncertainty about what has transpired or what the consequences of certain decisions might be. And the legal system has long developed methods for minimizing error in the face of uncertainty, such as the law of evidence or the use of expected utility theory. But much less has been said about a different sort of uncertainty: normative uncertainty, or the problem of how to decide when you don’t know how you ought to go about deciding.

Consider a judge who follows the debate between originalism and common law constitutionalism. She may think that one theory or the other is more likely to be the correct approach for resolving constitutional challenges. But she harbors a lingering doubt that the other side may in fact have the better approach. Our judge is uncertain, not merely as to which decision to make, but as to how to make it. Her uncertainty is normative: it is not merely about what she has most reason to do (as with empirical uncertainty), but about how to figure out what she has most reason to do.

This Article argues that normative uncertainty in the law creates a genuine practical problem for judges. It responds to theoretical skepticism about the existence of the problem, offering empirical evidence that the problem exists. And drawing on lessons from a related problem in moral philosophy, the Article illustrates that the answer to the problem is not as straightforward as might be assumed. Judges ought not simply to muddle through, or follow whichever theory they find most plausible. In exploring possible methods for minimizing normative error (on analogy to evidence or decision theory), the Article concludes by arguing that the process of reflective equilibrium, far from allowing judges to “cherry-pick,” may be justified as a way of coping with normative uncertainty.

Courtney M. Cox (Fordham University School of Law) has posted Confronting Normative Uncertainty: Deciding Cases When You Don’t Know How to Decide on SSRN. 

Harm Avoider Constitutionalism

This is basically a law and economics approach with a humane and sensible twist.

How does the Supreme Court actually decide difficult questions of constitutional law? Standard accounts point to a range of interpretive approaches such as originalism, common law constitutionalism, political process theory, interest-balancing, and constitutional pluralism. And once the list of commonly used interpretive approaches is set, normative debates often follow over which is best.

In this Article, I argue that another theory belongs on the list. In a surprising number of cases spanning a range of doctrinal areas such as Congress’s Article I power, equal protection, substantive due process, presidential immunity, and the dormant commerce clause, the Court has decided hard constitutional questions using a kind of argument that has evaded scholarly attention thus far. Rather than relying on original meaning, precedent, or other common tools for discerning the Constitution’s proper application, the Court has decided these cases on the basis of a raw, second-order consideration: which group, if the Court rules against it, would be better able to avoid the harm it would suffer? And in each case, the Supreme Court has consciously ruled against the best harm-avoider, trusting in that group’s superior ability to protect its interests outside the courts. I call this approach “harm-avoider constitutionalism.”

This Article uncovers harm-avoider constitutionalism as a distinct—and powerful—theory by which the Supreme Court decides hard cases. To be sure, the theory does not help in every case. But where it does, harm-avoider constitutionalism furthers significant virtues. It curbs judicial partisanship. It bolsters the Court’s legitimacy by ensuring that losing groups have more effective responses to their defeats than attacking the Court. It encourages litigants to identify solutions rather than belittle their opponents. And it enables the Court to pursue an important, yet under-looked objective in hard cases: to do the least harm possible.

Tang, Aaron, "Harm-Avoider Constitutionalism" (September 8, 2020). California Law Review, Forthcoming

A Second Best System To Secure Justice

Any tribunal that needs to buy new furniture to conduct a trial is probably not the optimal one in terms of impartiality, predictability, and accurate and just results.

“Dust Off the Impeachment Tables, a Senate Trial Is Underway; To make way for a historic impeachment trial, the Senate is undergoing a physical makeover, with custom tables for the prosecutors, cubbies for senators’ phones and quarters for the chief justice”: Michael D. Shear has this article in today’s edition of The New York Times.

Via How Appealing. 

Most importantly, of course, is that the procedures up for grabs at the same time that the merits are being contested, with few strong or binding precedents.

Musings On "Fruits Basket"

"Fruits Basket" is one of the most charming Japanese manga series ever written, was made into a very well done anime series in 2001 and another in 2019 which is available in an English dubbed version on Hulu. I've read the manga and watched the 2001 series and I'm now watching the 2019 series, which is considerably longer, omitting less from the original magna series.

Our heroine, Tohru Honda is a classic sweet and pure ingénue, and, of course, also an orphan, like a disproportionate share of young protagonists in fiction.

What really distinguishes the series is the very counterintuitive (to American eyes) way that Tohru and those around her deal with the interpersonal issues within the Soma family in which Tohru becomes ensconced, some of which are counterintuitive to anyone, and others of which reflect distinctly Japanese values rooted to some extent in Confucianism, about the appropriate ways for people of unequal status to interact with each other.

Even deeper than that, however, is the very sophisticated level of psychological analysis rooted in very deep empathy (rather than explicit social science  theories) employed by Tohru and several of the more mature characters in dealing with these interpersonal conflicts. This is more obvious in  the longer retelling of the story in the 2019 version makes it possible to focus on the meaty interpersonal relationship analysis in the underlying material relative to the 2001 version. It seems even stronger in the 2019 anime, to some extent, relative to the manga itself which is a bit more subtle on some of these points (although perhaps I just wasn't as attuned to them when reading it as one of the early full manga series that I read). Some of this may come with the passage of time too. The 2019 anime, for example, has a somewhat less tone deaf recounting of the travails of a transgender member of the family, although, as it is bound by the original material, not one that fully fits today's sensibilities about how to talk about and deal with transgender individuals respectfully.

The depth of understanding, empathy and sensitivity on display in the series itself has an internal irony to it. Despite the very sophisticated understanding of others that some in the Soma clan hold, the clan as a whole does a horrible job of recognizing the importance of love or the feelings of its members and is full of interpersonal misery. In part, this is a consequence of apparently unenlightened leadership of the mysterious Akito Soma at the top that everyone is powerless to address, a classic problem in any Confucian hierarchy. In part, this is a consequence of an epic, multigenerational curse that it is hubris to think that anyone can actually really overcome.

This in turn is rooted in a moral axiom and ideal rooted very deeply in modern Japanese culture that is absent in Western culture to anything approaching the same degree. This axiom is that everyone, no matter how deplorable their conduct, is capable of being persuaded and won over to acting more appropriately is you can only get to understand them and what is making them act the way that they do much completely.

As an empirical proposition, I have my doubts that this moral ideal accurately describes the world. It bears a lot of similarity to the almost ubiquitous tendency to overestimate the relevance of Nurture, relative to Nature, in understanding people's propensities and abilities. 

The reality is that behavior arises from complex Nature x Nurture interactions, and also depends a lot on immediate social context. But, the reality is also that some uncommon but not terribly rare people, perhaps one to four percent of the overall population, are just irredeemable, for example, due to a congenital condition that deprives them of the ability to have empathy, or due to a traumatic brain injury, or due to a life time of bad experiences that it are impossible to undo at some point.

Still, it is also true that there is something very positive to be said for routinely putting more effort than is common into trying to see things from someone else's perspective in an effort to understand why they are acting the way that the do. There is value in recognizing that behavior often does have roots that are understandable when known, that may not be immediately obvious without further intense investigation. And, it is likewise true that a myopic view of social interactions that looks just at an isolated incident of interaction in isolation (as most Western rules of law do) can obscure more fruitful ways to prevent bad behavior from continuing that approaches roots in imposing brute consequences often long deferred from the misconduct in question as a response to anti-social or inappropriate interactions and behavior. 

The snotty, spoiled and immature, but smart young family member Hiro Soma, routinely abuses his authority and tries to manipulate situations and rules to his favor. He exemplifies and demonstrates the perceived flaws in Eastern legal and political thinking of a narrow Western style system of "rule of law" that can be manipulated in so many ways and ignores the pervasive inequalities found in so many socially and legally important interactions. These are flaws relative to an Eastern legal and political philosophy oriented system focused on putting in place moral and wise people to administer society at every level and clear understandings about the appropriate ways to act interpersonally towards others who are in unequal relationships with each other, in which the focus is on nurturing well socialized people for leadership positions in which their own innate morality rather than formal rules of law are the primary guiding force in their actions. In Western legal and political thinking, the natural response to something that isn't working well is to adopt better laws and policies. In Eastern legal and political thinking, the natural response to something that isn't working well is to put in place more virtuous leaders.

It isn't wrong to observe that the Western narrow incident oriented approach does have flaws. Punishing someone for hitting, even when they do so only after extreme and inappropriate anti-social provocation, doesn't do complete justice or solve the problem entirely. Treating a girl who kills a man that has been keeping her as a sex slave and repeatedly raping her when she gets a chance because legally authorized self-defense in the moment is futile, isn't culpable to the same extent as a pre-meditated killing of a weak stranger. Many bullies start out as victims of other bullies until a vicious cycle builds up that treating each incident in isolation as an act to be punished with stiff consequences can't break. 

Sometimes someone gives someone else the cold shoulder out of misplaced love, trying to protect the person that they love from the woes that the person giving the cold shoulder is afflicted with, rather than hate or actual disdain.

Looking at acts narrowly and imposing consequences in isolation may be better than anarchy and easier for marginally competent people charged with enforcing peace and order to carry out without making serious mistakes. But, this is also crude and misses many opportunities in which more enlightened, empathetic and wise actions by those in authority and those involved without authority could have treated a situation differently and secured a better result. 

It brings to mind the truth that teachers and school administrators (who are better educated and who are specifically trained to deal with the issues of developing children) often do a better job of balancing consequences with empathy and understanding to get good results in dealing with discipline issues of students in school, than "school resource" officers who think crudely like the cops that they are and systemically lead to a school to prison pipeline.

Even If You Prevail In Litigation It Is Sometimes Slow And Expensive

The Decision

A published opinion of the Colorado Court of Appeals was released today in a lawsuit that I have been part of the team litigating actively for eight and a half years (I didn't participate in the briefing of this particular appeal, and I wasn't involved in the earliest parts of the litigation.) 

The main holding of the decision pertains to what documents must be attached to an application for attorneys' fees in a case whether a statutory fee shifting provision favors your client, which will be an important precedent on a nuts and bolts issue faced by lawyers in thousands of cases a year in Colorado. 

Litigation Can Be Slow and Expensive

But, the matter of more general interest to the public is that it provides an illustration of how long it can take to get justice in the civil court system and what it costs just one side in that dispute to do so. The Court of Appeals summarized the situation at the outset:

This case arose out of a property dispute between petitioner, Rita A. Nesbitt, trustee of the Rita A. Nesbitt Trust (Nesbitt), and respondents, Kathryn Y. Scott, Rodney A. Scott, and Vicki K. Scott (collectively the Scotts). The dispute led to protracted litigation, including an action in trespass and private condemnation proceedings, that lasted nearly a decade and involved two reversals by divisions of this court. Ultimately, the trial court awarded the Scotts $400,431.85 in attorney fees and $35,066.25 in costs. Nesbitt mounts two challenges to this award of attorney fees and costs. 

The term "costs" in this context means filing fees, service of process fees, fees to have transcripts made of depositions and hearings, charges for copying, printing and mailing documents (honestly, there isn't much mailing these days although postage used to be a pretty significant item in many cases), mediator charges, and much more than everything else combined, fees paid to expert witnesses such as, in a property dispute/easement/access dispute, surveyors, real estate appraisers, and road construction cost experts. 

The other side incurred costs that may or may not have been recoverable if they had prevailed, for flying the judge and representatives for both parties in a helicopter over the mostly roadless land in Pueblo County that was the subject matter of the dispute to aid the judge in independently and personally evaluating against the filter of dueling experts testifying for each party, whether it was practicable for the land owner that sought access to do so over an alternative access route that was preferred legally.

The Court of Appeals went on to affirm the award of fees to our client in this case (the award does not include fees and costs incurred by the respective parties in the prior trespass litigation) in the amount noted. The judgment in favor of our clients (following a third appeal that affirmed the trial court's final ruling) had come earlier. (There was also a fourth appeal earlier on in the case regarding attorneys' fees that was mutually dismissed as moot along the way when a decision on the merits in favor of our clients was reversed.) The other side also incurred fees of the same order of magnitude, although, of course, not an identical amount.

So, in the end, it took a decade and many hundreds of thousands of dollars spent by the parties, in addition to a much more modest but not entirely insignificant investment of public resources (certainly well in excess of the filing fees paid) by the court system, and some time and inconvenience for third-party witnesses in the case, to get it resolved once and for all. Litigation to collect the fee award is ongoing, and it isn't impossible that the opposing party could try to appeal this favorable Colorado Court of Appeals decision on the fee award to the Colorado Supreme Court. If you consider both side's litigation costs in this case and also in the previous case that led up to it, and also the public sector and third-party witness costs at some reasonable valuation and assign some modest dollar amount per hour to the time that the parties on both sides devoted to managing this litigation, the total societal cost of resolving this property dispute was roughly one million dollars, and that costs continues to accrue.

One of the reasons that civil procedure and litigation process reforms are so attractive from a policy perspective is that solutions don't have to be that wonderful to be a significant improvement. If a proposed reform could have caused this case to be resolved the same way with five years of litigation instead of almost ten, with a combined societal cost of $500,000, instead of something on their order of twice that much, and also had similar benefits in the significant minority of long, expensive civil disputes like it, to be consistently resolved more quickly at less expense, this would be a huge policy win that doesn't seem like it should be outside the realm of possibility.

It is also worth understanding that the fee award in this case was quite moderate compared to what some large law firms in Colorado charge their client. There are firms in Denver that have charged more than this amount to their client for prevailing on a single motion to dismiss in the trial court with no evidentiary hearings, followed by an appeal to the Colorado Court of Appeals, and then another appeal from that decision in the Colorado Supreme Court.

Better funding of the court system, especially at the appellate court level, could make the process move much more quickly and could have trimmed many years off the length of this litigation, but would have only moderately reduced the cost of this litigation.

Were Either Side's Lawyers Stupid?

This also raises another issue for lawyers generally, and it isn't a simple issue of either side's lawyers being stupid or incompetent. The litigation decisions each side had to make at some key junctures of the case were not easy ones with clear answers.

The other side lost their case every early on in the trial court, in 2012, when neither side had incurred even a tiny fraction of the attorneys' fees and costs ultimately incurred. They appealed the decision, and I would be the first to agree that they had every right to do so, and in the short run, they were right, they won on that appeal. 

But, as a result, their client spent seven more years in litigation only to produce exactly the same outcome on the merits, but with a far larger attorneys' fee obligation for their client. If the money had not been spent on litigation, it could have been used to secure non-legal solutions to their underlying problem which was getting access to a parcel of land that they owned. In 20/20 hindsight, the opposing party would have been much better off giving up their legal fight at that point and accepting the trial court's initial ruling against them.

It isn't uncommon that continuing to fight in litigation after an initial setback is ultimately a bad decision, especially when you win on "technical" grounds that don't really go to the merits of your claim. But, it is very easy for even good lawyers and well intentioned clients acting in good faith to underestimate the possibility that a short term win will backfire. 

Moreover, in cases like this one, with a fee shifting statute that applies to the case, the decision making process in evaluating the possibility that a short term win will end up being more costly in the long term tends to get worse rather than better, because each side has a stronger incentive to win on the merits without regard to what is actually at stake on the merits, and this clouds their judgment and makes the right choice harder to determine.

Conversely, sometimes you get get a quick win on the merits for your client that increases the risk that a decision will be overturned by a higher court relative to a slower win (indeed, this is true of almost all quick wins in litigation that don't involve a settlement). If the quick win is later overturned by a higher court, this is usually less desirable for your client in the long run. But, it is very hard to pass up an opportunity for a quick win, because saving time (that has great value apart from the litigation cost related aspect of this) is valuable and this usually reduces litigation cost and expense. Also, appellate outcomes are hard to predict in practice, and most trial court wins are not overturned on appeal, either because they are not appealed or because they are affirmed on appeal.

Finding a way to reform civil procedure and substantive private law to discourage this kind of decision making is a non-obvious matter, which is an important reason that this system is still around after literally hundreds of years of experience with the same basic grounds rules, and many decades of experience with the most pertinent of the very specific civil procedure rules in question.

It would be possible to significantly reduce the time and expense related to collateral fee award disputes, but that is a subject for another day.