Standing Law Still Broken

The U.S. law of standing basically states that even if the government or a government official is blatantly violating a law that benefits everyone, that unless someone can show how the violation of the law affects them in a way distinct from the way if affects taxpayers or voters or citizens, in general, that no one can enforce the law.

Most mainstream jurists manage to find a way to find standing in cases of clear violations of the law, but the ultraconservatives in the U.S. Supreme Court have used this doctrine to allow Trump to keep building the White House Ballroom in gross violation of the relevant law. The Chief Justice and the three liberal justices voted to prevent him from his clearly illegal actions, but were outvoted 5-4 on a standing argument.

No other sensible system of public law takes this approach. Standing was a rule invented for litigation between private parties that has never worked well in the public law setting.

Reflections On Six Months As A City Attorney

Six months and a week ago, I started a new job as a senior assistant city attorney at the City ad County of Denver in the civil litigation section. We handle lawsuits brought against the City and County of Denver, and against City employees where the lawsuit arises from the employee's official duties.

The job

Most people who work in my section have backgrounds either in criminal case litigation, or in private sector insurance defense of personal injury cases. I was one of the fairly uncommon applicants who had significant prior experience in civil litigation with government entities. One of my main responsibilities at my first job in Colorado, in Grand Junction, was defending county governments all over Western Colorado from lawsuits, which is more or less exactly what I do now defending the City and County of Denver. In my subsequent private private of law, I had a low volume, but steady trickle of cases where I represented private parties in lawsuits against the government, in addition to having broad civil litigation experience making up about half of my practice in a variety of other areas in both state courts and federal courts. This has allowed me to hit the ground running, compared to many of my peers.

Fortunately, our office operates with a very high level of professionalism, and my co-workers are good to work for.

My current case load (which varies from lawyer to lawyer in my section based upon the lawyer's experience and aptitudes) is about 60% civil rights litigation (mostly, but not entirely, involving actions of the police and jail guards), about 20% plain vanilla personal injury litigation like motor vehicle accidents that is similar to what private insurance defense lawyers do but with a governmental liability twist, and about 20% litigating subpoenas and public record requests where there are disputes that go beyond what can be resolved by records custodians out of court.

Different sections of the City attorney's office handle employee discipline and employment related litigation, enforcement of ordinance violations, child protective proceedings in cases where there are allegations of abuse and neglect, and transactional/corporate counsel type work for matters like negotiating and monitoring compliance with contracts between the City and its vendors, drafting ordinances, lobbying the state and federal governments, and managing conflicts that arise between different city agencies and officials.

There are also some governmental agencies which many people think are part of the City and County of Denver, but which are not: the Denver Public Schools, the Denver District Attorney, Denver Health (the county's public hospital), the Denver Housing Authority, the Regional Transportation District (RTD), the Downtown Development Authority, the Denver District Court, the Denver Probate Court, the Denver Juvenile Court, and probably a few others that I've failed to mention. 

The Denver County Court is a unique hybrid court that combined the roles of the limited jurisdiction state government's county court found in other Colorado counties, and the role of a municipal court for the City and County of Denver where municipal ordinance violations are prosecuted.

The biggest change for me has been transitioning from being self-employed for two decades to being a salaried W-2 employee. 

Mostly, this is for the better and was an important reason to take this job. Instead of having to invoice clients and pester them to pay their bills, or to wait until contingent fee cases are converted into money at the end of a case, money just magically appears in by bank account without me even asking for every two weeks. I get paid vacations and sick days! I get my health insurance through an employer plan, a switch I made shortly before big cuts to Affordable Care Act subsidies for self-employed people seeking health insurance took effect. If I continue to work for the City for five years, I get a defined benefit pension. I have a public sector defined contribution plan to which I can contribute about 20% of my income. I can pay for my parking expenses with pre-tax dollars. I don't have to pay anything out of pocket to get IT support. My tax returns will get a lot less complicated starting in 2027 (I had some residual self-employment work and income wrapping up my private practice in early 2026). I don't have to deal with fixing broken copying machines, building maintenance, hiring employees, tax withholding for employees, office security, arranging telephone and internet service, balancing an attorney's trust account, and so on. I don't have to spend large chunks of time marketing and deciding which clients to sign up. My work is mostly (not 100%) confined to 9-5 on business days.

I also get to work in a place with good systems in place, with adequate administrative support, with competent fellow attorneys who can cover for you while you are sick or on vacation, and top quality legal research and office related software packages.

We still have to pay close attention to potential conflicts of interest in new cases (and conflicts of interest that can emerge during cases), so we can send conflicted cases to outside counsel. But, unlike my fairly brief stint in a multi-state law firm with about a thousand lawyers, I don't have to spend half an hour to forty-five minutes every day (like every single other lawyer in that entire law firm) screening new cases brought into the firm for conflicts of interest.

Best of all, except for particular phases of the small share of cases where there is a prospect of receiving an attorneys' fee award, I don't have to track every tenth of an hour of every single working day, since all of the work we do is for the same client and is very unlikely to be the subject of attorneys' fee litigation.

Insights into law and policy and legal practice

Most people, most of the time, are outsiders to government, sometimes spinning conspiratorial narratives about what they think happens behind the scenes in the criminal justice system, and in government more generally. In my subpoena and records request practice, and in civil rights cases, I'm on the opposite side of the fence, with more or less complete access to the full "behind the scenes" story.

I almost always know more about what actually happened, sometimes legally relevant and sometimes not, than the other lawyers in the case and that the judge. It is a rare case where I don't know more or less exactly what happened in all legally relevant ways within a month or two of receiving it, and often within a couple of weeks.

I have nearly full access to all relevant records and a full ability to interview the government employees involved in a context where they are more quickly forthcoming about what I want to know, than in the formal discovery process.

The truth isn't nearly as nefarious as conspiracy theorists and a plurality of civil rights lawyers would have you believe.

This isn't to say that law enforcement officers or jail guards never make mistakes that hurt someone, sometimes in ways that give rise to legal liability, and sometimes in ways that don't.

A significant portion of my job is facilitating the payment of reasonable settlements to people who have been legitimately wronged by the government or government officials. Sometimes a city employee is clearly at fault in a motor vehicle accident. Sometimes a law enforcement officer does cross the line and is in the wrong. The City pays out millions of dollars a year in settlements and judgments as a result.

Most settlement payments err on the side of being generous, in order to avoid the risk that a jury won't correctly evaluate liability and damages in a case and will award an excessive amount. 

A significant minority of jury awards reach the wrong result on liability or damages (sometimes for the government and sometimes against it), often (as post-verdict juror interviews reveal) for reasons that shouldn't be legally relevant or reflect misunderstandings that neither side's lawyers even contemplated were possible. Most of the time, juries reach verdicts that are close to being right, but not all of the time by any means (even when the lawyers and judges are doing their jobs correctly).

My rule of thumb (based upon the available academic literature on the topic, and confirmed by my personal experience) is that in a best case scenario where the lawyers and judges in a case are doing their jobs right and the law dictates a clear answer, is that the likelihood that a jury will reach the wrong conclusion is about 10%. 

The odds that the jury will reach the wrong conclusion rockets up, of course, when one or the other side's lawyers engaged in misconduct, or the judge makes a significant mistake (not always appealable), or there is litigation misconduct by a party in the case such as destroying or fabricating evidence or lying under oath (often not known to the lawyers). The most common problems, however, are lawyer incompetence or a bad ruling from a trial judge or sincere but incorrect witness memories about what happened, and not outright litigation misconduct.

Some kinds of suspicions about what is happening behind the scenes are more often correct than others. For example, I know (from having access to what is in them in cases where I move to quash subpoenas) that the vast majority of internal affairs files sought by defense attorneys in criminal cases that are withheld from them, truly aren't material to the outcome of those cases, even at the margins on credibility issues. The kind of conduct that law enforcement agencies, and governments more generally, care about for purposes of internal employee discipline, are only vaguely similar to the kinds of conduct that give rise to legal liability, or would be relevant in a criminal case in which an officer was involved in some way and is a potential witness.

Timelines

Different kinds of cases have different timelines. Records request cases and subpoenas are typically litigated over a period a week to a few months. Ordinary personal injury cases in which a defendant just happens to be a governmental entity, tend to be fairly simple cases that are resolved in a year or two once a case if filed, and are often settled sooner than that. 

Civil rights cases, and personal injury cases which are really civil rights cases in disguise, take one of two typical courses. Many of them are resolved very early on in initial dispositive motion practice and are often dismissed within a few months to a year with complete dismissals on the merits (or for failure to prosecute by a pro se party, i.e. a Plaintiff bringing suit without a lawyer). The civil rights cases that aren't resolved that way can take much longer, in part because they are often prosecuted in federal court which is much slower than state court, in part because interlocutory appeals (i.e. appeals brought prior to a final trial and verdict) are common in civil rights cases, and in part because these cases are sometimes more complex and require lengthy pre-trial discovery and motion practice. I have one case that will probably go to trial soon about eight years after the underlying incident (that involved a handful of people over the course of less than two hours in one place)  took place.

If everyone knew what I know as a governmental defense attorney know within two or three months of a case being filed, these cases could be resolved in six months and would be resolved more accurately than they are in jury trials. But, of course, part of the reason that I can secure this information so quickly is because the people from whom I receive the information know that what they share with me won't be used against them in court. Still, this observation does suggest that there is plenty of room for improvement in the process.

Also, a lot of the delay in civil litigation is a function of simply not having enough judges to keep their case loads small enough to allow them to make prompt rulings, and an overall litigation system that has adapted to that reality.

The quality of plaintiff's litigation

Another thing that my job gives me is a broad overview of the quality of the legal work done by the people who sue the City.

About half the lawsuits brought against the City are brought by pro se parties, or by lawyers whose legal work falls below the standard of care that should be expected from a reasonable competent lawyer. 

Indeed, the best pro se parties (maybe the top 5-10% of them) are doing a better job of litigating their cases than the worst lawyers that we see (although no pro se parties do an excellent job). There are a few lawyers in the Plaintiff's bar who are so incompetent that I am amazed that they passed the bar exam, although even they have basic literacy and some understanding of the process. But there are plenty of pro se parties whose literacy and understanding of the process is below that of an average high school student, who would benefit from representation by even an only marginally competent lawyer.

One of the better arguments for a "civil Gideon" system in which indigent people would routinely be provided access to lawyers by the state, the way that indigent criminal defends are, is that it would make the delays and confusions caused by incompetent pro se litigants largely go away making the whole legal system work much more efficiently.

Cases brought by incompetent litigants overwhelming get dismissed early on, or settled for amounts far less than a competent lawyer could secure.

Incompetent litigants tend to be particularly weak at investigating a case and gathering facts to support it, and in understanding at a more than superficial level the relevant substantive and procedural legal requirements for proving a case of governmental liability. Now and then, they do the right thing despite themselves, however.

Of course, part of the failure rate among these litigants is an inability to accurately judge if they have a legally meritorious case. I have definitely seen cases that were winnable or could have secured a larger settlement, that don't because they are brought by incompetent litigants. But probably 80%-90% of the cases brought by incompetent litigants wouldn't have been brought at all by competent lawyers, who could have identified the weakness in those cases at the outset and not filed suit. 

When I was in private practice, I probably turned away two or three potential clients a week, often potential clients who had heart wrenching stories of misfortune. But those potential clients either didn't have cases for which the legal system had a remedy, or had cases where the likely outcome of  their cases with competent legal representation would provide them with less economic benefit than the cost of competent legal representation, and would have greatly disrupted their personal lives and eaten up huge amounts of their personal time.

And, by the way, incompetence by lawyers isn't restricted to sole practitioners with little experience. I've seen multiple cases of grossly incompetent litigation from medium to large plaintiff's law firms (some of which are household names due to their advertising or due to prominent cases that they have litigated) by lawyers with significant experience.

This isn't to say that all litigants against the City are incompetent. About half of lawsuits against the City are brought by lawyers whose work is at least up to the standard of a reasonable competent lawyer, and a minority but good share of litigants against the city are represented by lawyers whose work represents the best practices in this work, are highly competent, and have screened potential clients in such a manner that they have chosen to represent plaintiffs with meritorious cases.

At least one case that I have handled so far involved a plaintiff who was represented by two successive incompetent lawyers, only to have the case pass to a third, highly competent lawyer that salvaged the case with some smart litigation decisions and was able to secure a settlement much higher than what the previous incompetent lawyers came close to reaching.

Sadly, there is very little that a person thinking about bringing a lawsuit can do to determine if their lawyer is litigating competently or not. That's why we have a bar exam in an attempt to impose at least some minimum standards, but this gatekeeping isn't perfect.

Admission to the bar allows you as a lawyer to handle almost any kind of case (patent law is an exception, and some states set a higher standard to determine if a lawyer is allowed to represent defendants in death penalty cases), subject only to their own self-determination about their competence.

But while being admitted to the bar usually means that a lawyer meets basic standards of literacy and can find their way to the courthouse, with a vague understanding of how the process works, the vast majority of lawyers (I'm an extreme outlier in this regard), have a far more specialized legal practice and predominantly handle a fairly narrow kind of legal work.

Probably a majority of lawyers don't litigate any civil or criminal cases on a regular basis, and instead do transactional work, legal compliance work, or provide counsel to senior corporate officials in their day to day activities.

It is rare for a lawyer to represent both plaintiffs and defendants in personal injury work. It is rare for divorce lawyers or real estate lawyers to handle personal injury or civil rights cases. It is rare for commercial litigators to litigate personal injury cases. It is rare for probate lawyers to do personal injury or civil rights litigation. It happens. I'm an example of that. But it is rare.

Unlike physicians, whose regulators have imposed both a general threshold professional qualification to become an M.D., and an additional professional qualification to practice in a particular medical specialty, the legal profession has almost no secondary level of professional qualification to practice in a particular legal specialty, like personal injury litigation, or civil rights litigation.

Most specialist legal practitioners do develop special expertise in the area where they practice, from working as a junior lawyer in a firm that has that kind of practice, from taking continuing legal education classes in that field, from researching the law and procedure in their own cases, and from the school of hard knocks. But it isn't systemic or uniform among specialist legal practitioners who often have significant gaps in their knowledge of the best practices for handling cases in their specialty.

This can be a particular problem in civil rights litigation where the law is more complicated than in many other areas of law, and where firm sizes tend to be small, so that many practitioners have never worked as junior lawyers under seasoned senior civil rights lawyers to learn the ropes. A fair number of lawyers with this kind of practice went to law school because of, and are driven by, a strong commitment to social justice, but couldn't find an employer in a field relevant to their objectives out of law school. So, they never received the kind of mentorship that they needed to become competent in their field as a result and are prone to making big picture conceptual mistakes and to bad legal judgment that hasn't been honed by more seasoned practitioners.

Musings On September 11

 * I was supposed to be in a trial out of town today for one of my clients. She's been hospitalized since Sunday (it is not life threatening at this time, although it sucks to be in the hospital, of course). So, the trial had to be continued to a future date to be determined. As a result, I have some found time today.

* I was in court 24 years ago, on September 11, 2001, when the attacks on the World Trade Center, the Pentagon took place, and Flight 93 crashed after passengers rose up and disrupted the efforts of the men who hijacked the plane. 2,996 people were directly killed in the attacks including 19 terrorists were killed in the attacks, predominantly passengers on the four hijacked flights, people in the World Trade Center, and World Trade Center first responders. 

I still lived in the same house and was married to the same wife. Back then, I was a junior associate attorney with a two year old and an infant. Now, my children have finished college, have apartments of their own, have good jobs, and have significant others with good jobs. My daughter is engaged to be married in less than a year. I'm a few days away from starting a new job as a senior city attorney for the City and County of Denver, after almost twenty years of self-employment as an attorney in the interim.

* In the U.S., the 9-11 attacks, after briefly completely shutting down commercial air travel in the U.S., resulted in the formation of the Transportation Security Administration, the reorganization of the federal government bureaucracy to create a Department of Homeland Security, the establishment of much more strict security checks and protocols for commercial air travel, the creation of memorials and compensation schemes for the victims of the attacks (several thousand people were killed), the rebuilding of the Pentagon, and the erection of a new skyscraper where the World Trade Center once stood. Islamic terrorism in the U.S. after 9-11 proved to be extremely rare and small in scale. Some of the measures imposed in the wake of that attack, like a requirement to remove one's shoes in a security line that was triggered by a single failed shoe bombing attack on December 22, 2001, are finally being rolled back now. The 9-11 attacks also spurred the passage of the controversial PATRIOT Act which strengthened the authority of U.S. intelligence agencies, the substance of which largely remains on the books with several modifications adopted since then.

* A U.S. Supreme Court ruling in the case of Ashcroft v. Iqbal, dismissing a lawsuit alleging the arbitrary detention without probable cause and mistreatment of American Muslims in the wake of the 9-11 by the federal government adopted a new standard for bringing federal lawsuits, that replaced "notice pleading" that allowed lawsuits to be brought upon information and belief to be substantiated in the discovery process with "plausibility pleading" that requires allegations of facts that were actually known to state a plausible claim for relief to bring a federal lawsuit, and many but not all U.S. states subsequently also adopted this standard. The case was dismissed because the plaintiffs didn't have actual knowledge of the insider discussions of top U.S. officials in adopting the policy. The case and a related one called Twombly, which involved an anti-trust lawsuit in which the plaintiffs did not have the "smoking gun" of actual knowledge of the deal reached by allegedly conspiring insiders who had allegedly reached an anti-competitive agreement with each other, made it much harder to bring lawsuits that involve misconduct that only actual insiders have actual knowledge of without court ordered discovery.

* The 9-11 attack was planned and orchestrated by Osama bin Laden and his al-Qaeda organization operating in Afghanistan, an organization that the Taliban, which controlled almost all of Afghanistan at the time. al-Qaeda was backed financially and intellectually mostly by factions of the Saudi Arabian royal family and allied wealthy elites were were not part of the ruling faction. The terrorist was Saudi Arabian and Egyptian and Lebanese nationals.

In response to the attacks, Congress promptly and almost unanimously passed the Authorization for Use of Military Force (AUMF) against this non-state actor. Starting on October 7, 2001, a small U.S. force using a combination of CIA operatives, U.S. Special Forces, and U.S. air power promptly crushed the Taliban (by December 7 of 2001), which had been on the verged of conquering the entire control over the opposition of a coalition of warlords, called the Northern Alliance, that was resisting them. 

A multinational coalition led by the U.S. then occupied Afghanistan in the resulting power vacuum, shepherded a constitutional assembly based upon local traditions which adopted a Western style government (but with Islamic law as the supreme law of the land) under which a democratically elected civilian government of Afghanistan was formed, with the multinational force supporting the newly formed Afghan government (whose take on Islamic law was far less extreme than that of the Taliban) in counterinsurgency actions against the Taliban. 

The Afghan government fell in 2021, just days after U.S. forces withdrew on August 30, 2021, under an executive agreement that previous U.S. President Trump had negotiated with the Taliban without Afghan government involvement. The Taliban government swiftly seized control of the entire country and has imposes a very strict Islamic law regime in the four years that have followed. 

The AUMF, however, continues to be in force to fight a larger "War on Terrorism" against Islamist terrorist groups and insurgencies related to al-Qaeda, especially the "Islamic State" group that briefly operated an ultra-extreme Islamic State in Iraq and Syria. U.S. military action under the AUMF, predominantly in the Middle East and Africa, has continued into 2025.

About 5.5 million members of the U.S. military served in the post-9-11 era and a large share of the soldiers in the Army and Marine Corps, as well as many members of the U.S. Air Force, and a modest number of U.S. Navy sailors, serve in Afghanistan and/or Iraq (where the Iraq War was conducted from March 10, 2003 to December 15, 2011 with some U.S. forces remaining on a residual basis afterwards). There was a steady, but small stream of casualties from that conflict: 2,420 U.S. soldiers were killed and 20,093 were wounded but not killed in the Afghan War over almost twenty years, usually from improvised explosive devices (IEDs) and ambushes from Taliban-linked insurgents. The peak strength of the multi-national force in Afghanistan, in October of 2019, was 17,178 soldiers (about two-thirds of whom were U.S. troops, with British and Canadian troops making up a little more than half of the rest), which was about 5% of the peak number of U.S. troops deployed in Iraq. The U.S. spent $2.3 trillion on the war in Afghanistan (about 90% for the conduct of the war and 10% for related care of Afghan war veterans). At least 243,000 people died as a direct result of this war (mostly Afghani civilians, contractors, and Afghan combatants on both sides). These figures do not include deaths caused by disease, loss of access to food, water, infrastructure, and/or other indirect consequences of the war. 

* Afghanistan has been immersed in civil wars and insurgencies, with only brief interruptions, since 1979 (just six years after the 18th century monarchy that unified the country was removed in a 1973 coup, with the Western style republic's government removed in a 1978 coup). As a result, on essentially ever element of human development is it the worse in the world outside Sub-Saharan Africa, with only Yemen and the Palestinian territories within Israel (especially post-October 7, 2023 Gaza) coming anywhere close.

Middle Ground On Arbitration

One of the biggest problems with arbitration is that there is nothing but the arbitrator's conscience to insure that arbitration decisions conform to the law and the facts, even though they are, in principal, supposed to conform to both. Arbitration clauses with expanded judicial review could address this flaw that discourages parties from utilizing this forum.

This article argues that courts should enforce private contractual agreements for expanded judicial review in arbitration agreements. This article demonstrates that the court decisions enforcing such arbitral contractual provisions are consistent with the FAA’s purpose to ensure enforcement of parties’ arbitral agreements, whatever the form. Furthermore, this article argues that the FAA does not preclude courts from reviewing awards under expanded grounds where parties so agree, because the statutory structure provides default rather than mandatory grounds for award vacatur. Finally, this article concludes that permitting the parties to contract for expanded judicial review serves the public policy favoring arbitration, insofar as it encourages arbitration by giving parties who may be extraordinarily concerned with obtaining the legally correct outcome the ability to contract for expanded judicial review.

Richard A. Bales, Contracting Around the FAA: The Enforceability of Private Agreements to Expand Judicial Review of Arbitration Awards, SSRN (2025).

Sanctioning And Preventing Federal Government Corruption

Emoluments And Other Standing Problems

The law is very clear. And, it is the highest possible law - a part of the United States Constitution. But, enforcing it, particularly in the case of a President who violates it, by any means short of an impeachment, which can be circumvented by 34 Senators of the President's political party, is another thing.

The U.S. Supreme Court's rules on standing to sue takes the position that you can't have standing to sue as a taxpayer, as a U.S. citizen, or as a voter, on a wrong that affects everyone in the same way.

The U.S. Supreme Court recently held that the President is immune from criminal liability for his official acts, no matter how egregious (in a stark deviation from the widespread understanding at the time it ruled this way), in addition to being immune from lawsuits seeking money damages for his official acts.

Justice Department policy, and the structure of the Executive Branch also prevent federal prosecutors from prosecuting a sitting President, and the President's authority over the Justice Department, together with his pardon power, allows the President to shield anyone he favors from federal criminal prosecutions.

The U.S. Supreme Court hasn't directly ruled on the issue, but at least one lower court (in the criminal case against Trump involving his refusal to turn over documents with government nuclear secrets which he kept in his residence after he left office and refused to return upon demand) has held that special prosecutor statutes are unconstitutional, in an extension of the (until recently fringe) "unitary executive theory."

The same problem does not arise to nearly the same extent in state government. Almost every U.S. state has an independently elected state attorney general who can prosecute misconduct in other parts of the state government, and the federal government can also step in to prosecute state and local government corruption and violations of civil rights as a federal offense. The subject-matter jurisdiction of state courts is also not subject to the same level of strict limitations as the federal courts are by Article III of the U.S. Constitution.

This problem isn't unique to the Emoluments clause either. It comes up frequently in Establishment clause violations of the First Amendment. It can come up when one part of the federal government illegally shares confidential information with another part of the federal government. It comes up when the executive branch spends federal government money without a Congressional appropriation to support it. It comes up when a President orders a violation of the Posse Comitatus Act and then pardons anyone who was involved in it. And, there are many other contexts where serious violations of the law within the executive branch have no viable remedy.

In some cases, an entire house of Congress can, by majority vote, authorize a lawsuit against the Executive Branch in federal court, but this is cumbersome and rendered frequently ineffectual by partisan politics. In some cases, a federal government chartered corporation, like the Public Broadcasting Corporation, can have independent standing to sue and by sued under a statutory grant of federal authority.

But, there is no systemic solution to this problem in existing federal law. Mostly, we just have to trust the President to do the right thing, but not all Presidents have earned this trust, and certainly, our current President has not. This is a glaring flaw in American Public Law.

Solutions

There are plausible solutions which could be imagined that would set aside the usual rules of standing on the grounds of necessity. We could grant the federal courts the authority to deputize a special prosecutor to pursue these issues. We could grant standing to pursue these issues to state attorneys-general. We could allow Congress to create an independent agency (perhaps one located in the judicial or the legislative branch with no Presidentially appointed directors or board members from an organizational chart and constitutional perspective) to pursue these claims. We could vest this authority in former U.S. Presidents who are still living, or the candidate that was the runner up in the last Presidential election.

Possible Constitutional Amendments

Perhaps we need an "anti-corruption" constitutional amendment, although conceptually, maybe this could be broken into several components. Consider this package to six constitutional amendments (and to be clear, some of those could also be accomplished without constitutional amendments):

Anti-Corruption And Standing Amendment

* Create an agency that has standing to take criminal, and civil legal action with national effect), to enforce federal law, to render advisory ethics opinions, and to protect the rule of law within the federal government (perhaps with a director appointed by a governing board made up of federal judges chosen at random),

* Prohibit federal elected officials from having a role in, or knowledge of, the management of private businesses or investments while in office,

* Prohibit self-dealing and conflicts of interest by federal officials including the President,

* Prohibit felons from serving as President unless that disability is removed by the same means as an insurrection disability is removed,

* Prohibit members of Congress from serving while serving a sentence for a felony,

* Authorize removal of members of Congress without being formally expelled from office by the House where someone is a member by the courts for various grounds established by law constituting good cause,

* Expressly authorize the appointment of special prosecutors by a three U.S. District Court judge panel, where the Justice Department is conflicted, or where the federal government fails to prosecute a crime when a preponderance of evidence, beyond mere probable cause, shows that it was committed by the proposed defendant,

* Authorize facial challenges to the constitutionality of legislation and regulations by the anti-corruption agency and by state attorneys-general, even in the absence of a case or controversy or other proof of standing,

* Create standing to enforce the establishment clause by any person who resides in, or is detained by, the territory of a government that is alleged to have violated it,

* Expand the scope of grounds for impeachment to include a willful and persistent failure to faithfully execute the laws in violation of one's oath of office, or a willful defiance of a court order.

* Try impeachments before a panel of judges rather than by the U.S. Senate,

* Prohibit judges appointed by a President from serving as a judge in any court proceeding in which the appointing President is a party in a non-official capacity (including any criminal prosecution),

* Mandate that Congress pass appropriate legislation to thwart judge shopping,

* Create binding ethics rules for the U.S. Supreme Court and lower courts that can be enforced without utilizing the impeachment power by state attorneys-general, but some minority percentage of Senators, or by an anti-corruption agency, and

* Provide additional remedies for courts when federal government officials disobey court orders (including the permanent removal of an official from office, and the appointment of a special master to carry out the duties of the defiant official).

Immunity Amendment

* Overrule the U.S. Supreme Court's recent Presidential immunity ruling creating blanket immunity from criminal prosecution for a President's official acts,

* Forfeit immunity from civil lawsuits for money damages for acts that an official has been legally adjudicated to have committed in a criminal case or civil proceeding,

* Allow immunity from civil or criminal liability for federal government officials exclusively when Congress authorizes it by law, including, but not limited to Presidential immunity and qualified immunity for law enforcement,

* Prohibit stripping all courts of the authority to consider any matter,

* Narrow the political questions doctrine, and

* Make clear that there is no immunity from contempt of court liability.

Anti-Tyranny Amendment

* Impose limitations on the prosecution of state and local government officials by federal officials while they are performing their official duties (perhaps limiting such prosecutions to the anti-corruption agency),

* Make the Posse Comitatus Act a matter of self-executing constitutional law and to allow its enforcement in civil actions as well as by criminal prosecutions,

* Provide a self-executing, federal, private cause of action for compensatory, economic and non-economic damages including litigation costs and attorneys fees and/or injunctive relief, for any deprivation of federal rights constitutional or statutory, under color of state or federal law, against the government under whose authority or actions or inactions the deprivation was made, on a strict liability basis without regard to the intent of the government or governmental agents or employees doing so, and with no form of immunity (in a matter akin to the takings clause),

* Provide an absolute right to have criminal convictions vacated upon a showing of actual innocence by a preponderance of the evidence,

* Create a right to counsel in deportation actions and to bring habeas corpus petitions,

* Remove the "subject to the jurisdiction thereof" (which applies only to a handful of children of diplomats anyway) and "Indians not taxed" provision (which was legislatively mooted in 1924) from the grant of birthright citizenship in the 14th Amendment,

* Prohibit criminal defamation laws,

* Prohibit laws barring travel from one state to another in order for the person doing so to avail themselves of another state's law,

* Prohibit laws barring interstate communications about a matter that is legal to communicate about in either state,

* Prohibit revocation of immigration status based upon speech which would be protected by the First Amendment for a U.S. citizen,

* Prohibit involuntary denaturalization under any circumstances (even in the naturalization was secured by fraud which could be prosecuted but could not result in loss of U.S. citizenship), and

* Expressly include the limitation on the suspension of habeas corpus to places where the federal courts are not open established by Ex Parte Milligan and to clarify that the writ of habeas corpus is available to person detained outside the territory of the United States by the federal government or its agents or contractors.

Election Law Amendment

* Make Section 3 of the 14th Amendment (the insurrection clause) self-executing in any local, state, or federal tribunal with jurisdiction over qualifications to hold public offices or elections for those offices,

* Create eligible voter standing to enforce election laws including campaign finance laws, and constitutional provisions related to elections in jurisdictions where the voter has a right to vote,

* Remove the authority of Congress to resolve disputes over the election or qualifications of their members or the validity of duly certified state elections for federal offices, vesting that authority, instead, in the courts,

* Invalidate all statutory confidentiality rights other than attorney-client privilege and religious confession privilege for anyone running for, or holding, a federal elective office,

* Remove the authority of state legislatures to appoint electors for the President by any means other than a vote of the people,

* Require federal elections be administered at the state and local level by officials who are not partisan elected officials or appointees of partisan elected officials,

* Authorize non-criminal remedies for false statements of presently existing facts, or false statements related to voting, made with actual malice, in connection with political speech, and

* Constitutionally overrule Citizens United which constitutionally prohibits any rigorous campaign finance regulation.

Pardon Power Amendment

* Expressly prohibit the President from pardoning himself, or members of his family, or a President who appointed the current President to the office that put him in the line of succession to be President,

* Prohibit pardons from contempt of court sanctions whether civil or criminal, 

* Invalidate pardons for criminal conduct taken in reliance on a promise from the President that it would be pardoned, or issued in exchange for any consideration,

* Require notice of all pardons and commutation (other than a stay of execution) to be transmitted to Congress to be effective, and to subject them to a legislative veto in the same way as a veto override that must be acted upon with a certain period of time (perhaps 35 days) after it is transmitted to Congress.

Congressional Supremacy Amendment

* Clarify that Congress has plenary authority over the operations and organization of the Executive branch, and over how the President exercises his discretion in any matter whatsoever of which the constitution or statutes grants him authority, which the President has no authority to contradict,

* Require all Executive Orders purporting to impact anyone outside of the Executive branch of the federal government to be transmitted to Congress and paused until ratified by both houses of Congress, or until three weeks have elapsed, before taking effect, and to allow either house of Congress alone, by majority vote, to repeal any Executive Order,

* Legalize legislative veto legislation (retroactively),

* Confirm the authority of Congress to pass anti-impoundment legislation,

* Confirm the validity of civil service protections for public servants,

* Confirm the validity of government contracting rules established by Congress,

* Constitutionally disavow the "unitary executive" theory by expressly allowing Congress to create independent agencies whose directors, boards, and staff cannot be dismissed or directed by the President,

* Validate the constitutionality of laws such as the Administrative Procedures Act which governs how executive branch discretion may be exercised,

* Provide that Congress has the authority to waive any claim of executive privilege made by the President, and

* Constitutionally ratify the authority of Congress to pass legislation like the War Powers Act.

An Act To Prevent Tyranny

I would suggest that Congress pass a "Prevent Tyranny Act". This would:

1. Repeal the Insurrection Act of 1807 (now codified at 10 U.S.C. §§ 251-255).

2. Repeal the Alien Enemies Act of 1798 (now codified at 50 U.S.C. § 21).

3. Repeal 8 U.S.C. § 1251(a)(4)(C)(i) (i.e. Section 241(a)(4)(C)(i) of the Immigration and Nationality Act ("INA") which provides that the U.S. may cancel the visa of and deport:

An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.

4. Repeal 8 U.S.C. § 1451 (authorizing the revocation of a grant of citizenship by naturalization in certain exceptional circumstances).

5. Pass legislation invoking Section 5 of the 14th Amendment to enforce Section 3 of the 14th Amendment, by authorizing a civil action to disqualify any person from holding public office on account of their involvement in an insurrection against the government of the United States in any federal district court, and also in any state court or tribunal granted jurisdiction to make such determinations by state law, if the disqualifying conduct is shown by a preponderance of the evidence.

6. Pass a statute authorizing a habeas corpus action related to any person detained by the United States government, and any other civil action related to such a detention, to be filed in the U.S. District Court with territorial jurisdiction over the place where that person was detained, or if outside the territorial jurisdiction of any U.S. District Court, in the U.S. District Court for the District of Columbia, in addition to continuing to authorizing the filing of such a civil action in any other U.S. District Court that has jurisdiction under existing U.S. law. Further, provide that a plaintiff in such an action shall have an absolute right, to compel the United States government to, at the expense of the United States government, as soon as logistically possible, return any person detained by the United States government to a place in the territorial jurisdiction of the U.S. District Court with with territorial jurisdiction over the place where that person was detained, or if outside the territorial jurisdiction of any U.S. District Court, to the District of Columbia.

7. Pass a statute prohibiting the United States government (or any other person acting under the color of state or federal law), from involuntarily removing a civilian United States citizen from the United States for any reason (other than a request to extradite that person, to another country with whom the United States has diplomatic relations, for prosecution for a suspected felony committed in that country, pursuant to existing extradition laws).

8. Amend 42 U.S.C. § 1983 which creates a private civil action against persons who deprive someone of fedreal rights under color of state law, to codify Bivens actions (named after the case of  Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), by making it also apply to anyone who deprives someone of a federal right under color of federal law.

9. Repeal the doctrine of qualified immunity to liability under 42 U.S.C. § 1983.

10. Authorize the additional discretionary remedy under 42 U.S.C. § 1983, of imposing a disqualification from holding public office similar to that of Section 3 of the 14th Amendment, under the authority of Section 5 of the 14th Amendment, to persons held liable under that statute, for good cause shown.

11. Prohibit the invocation of the State Secrets Privilege in any habeas corpus case, any proceeding related to immigration, and any criminal prosecution.

12. Prohibit deportation of a non-citizen from the United States, without their free and voluntary consent in open court while represented by counsel, to any country where that person is not a national or citizen.

Statutes Of Limitations By State For Ordinary Car Accidents

The U.S. has considerable variation in the statute of limitations that applies to lawsuits arising from ordinary car accidents involving competent adults and no government officials or claims against the government.

Two states (ME and ND) allow you to wait six years. One state gives you five years (MO). Four states (UT, WY, NE, and OH) allow four years.

Two states (TN and LA) limit you to one year. 

The other 41 states and the District of Columbia have statutes of limitations that are two or three years. (Incidentally, while Colorado allows three years for car accidents, it allows only two years for most all other personal injury lawsuits.)

There isn't a clear partisan pattern to the state by state differences. I'm interested in finding research, if there is any, on what practical impact the different rules have on tort liability for car accidents. 

WARNING: THIS POST IS NOT LEGAL ADVICE. IF YOU NEED TO KNOW, TALK TO A LAWYER RETAINED TO ANALYZE YOUR INDIVIDUAL CASE.

This particular statute of limitations is a decent bellwether, because it is the single most common type of tort lawsuit, and because the date upon which it begins to run is usually very clear.

According to data from the Bureau of Justice Statistics, around 60% of tort lawsuits are related to car accidents.

What other data on tort lawsuits is available from the same study (using 1991-1992 data)?

* The majority of cases disposed were auto torts (complaints charging damage caused by a motor vehicle). 

* Complex cases involving medical malpractice, product liability or toxic substance together made up about 10% of all tort cases. 

* About three-quarters of the cases were disposed through an agreed settlement or voluntary dismissal; 3% by a trial verdict. 

* Twenty-eight percent of the approximately 378,000 tort cases were uncontested, (the defendant did not file an answer to the complaint). 

* Half the tort cases were disposed within 14 months. 

* Auto tort cases were settled in a shorter period than all other cases. 

* Tort cases involved primarily individuals suing other individuals. 

* Half of the all tort cases involved three or more litigants. 

During a 1-year period ending in 1992, State courts of general jurisdiction in the Nation's 75 largest counties disposed of an estimated 378,000 tort cases involving 1.4 million plaintiffs and defendants. Individuals suing businesses accounted for a third of all cases. The average time courts took to dispose of a tort case was just over 11/2 years. Trial verdicts accounted for 3% of all tort cases disposed. 

These are some of the results from a study of tort cases in State courts. The basis is a representative sample of the 75 courts where nearly half of all tort cases nationwide are handled, making this the closest that exists to a tort study national in scope. 

These survey data establish a benchmark against which future tort reforms can be evaluated. Moreover, survey results provide a baseline that individual courts can use for comparison. 

The sample 

The estimated 378,000 tort cases were disposed from July 1, 1991 to June 30, 1992, in State general jurisdiction courts. A representative sample of 18,000 tort cases was drawn from court files in 45 of the Nation's 75 largest counties. The 45 are located in 21 States. The sample excluded Federal courts, which account for about 4% of all tort cases, and State courts outside the 75 largest counties. (Federal tort case jurisdiction is limited to claims that involve more than $50,000 in damages and in which plaintiffs and defendants are from different States. About a third of tort cases disposed in Federal court in 1992 involved product liability.) Also excluded were tort cases disposed in States' limited jurisdiction court. (Limited jurisdiction courts have jurisdiction over cases where the amount at stake is below a certain threshold (typically $500 to $25,000.) 

Types of tort cases 

In tort cases, plaintiffs allege injury, loss, or damage from negligent or intentional acts of the defendants. Types of cases vary. Over the 1-year period, the two most frequent kinds disposed were from automobile accidents (60%) and premises liability cases alleging harm from inadequately maintained or dangerous property (17%). Other types of cases included those that are a primary focus of current tort reform activity: product liability (3%), toxic substance (2%), and medical malpractice cases (5%). In 92% of tort cases, the plaintiff cited personal injury as the type of harm involved. Property damage was cited in 5%, and financial loss or injury to reputation was claimed in the remaining 3%. 

The majority of tort cases involving personal injury (64%) or property damage (60%) were auto torts. 

Types of tort case dispositions 

The most common method of tort case disposition was an agreed settlement (73%) About 10% of the cases were dismissed for a lack of prosecution or failure to serve a complaint on the defendant. In the vast majority of tort cases, litigants settled the complaint without going to trial. Therefore, details of tort settlements are unknown. Little systematic data are available regarding why cases are settled or the cost of settlement for either party. 

A jury (2%) or bench (1%) trial verdict disposed relatively few cases. Medical malpractice claims (7%) were more likely than product or premises liability, auto, or toxic substance cases to be disposed by a jury or bench trial.  

Uncontested tort cases 

Most tort litigants had an attorney represent them; 3% of the involved a pro se litigant who represented himself or herself. In 28% of tort cases, the defendant failed to file an answer to the complaint. Failure to answer in a timely manner (usually within 30 to 45 days) gives the plaintiff the right to file a motion for a default judgment. Such uncontested tort cases comprised 81% of all cases disposed by default judgments. Most uncontested cases were disposed by agreed settlement (65%) or dismissed for lack of prosecution or failure to serve the complaint on the defendant (23%).

Reforming Rules On The Survival Of Lawsuits

One fairly technical issue in the law is under what circumstances a legal case based upon something that arises during someone's life (or as a consequence of their death) can be brought after death, and under what circumstances a pending legal case can continue after someone's death.

Most of the rules are fine and work well, but a few should be reformed.

The majority rules on these issue in U.S. law are as follows:

1. Criminal cases. Pending criminal cases against a criminal defendant are dismissed upon the death of a criminal defendant. A criminal case is pending until all direct appeals of the conviction are exhausted. Notably, even restitution awards made in a trial court for the benefit of crime victims are vacated if the criminal defendant dies while a direct appeal of the criminal case is pending. 

While this is harsh for crime victims entitled to restitution, often restitution beneficiaries can commence a new civil action for money damages from the crime against the criminal defendant's estate using evidence presented originally in a criminal restitution hearing, however. The simplicity of the rule is also desirable.

2. Most civil actions survive. Most rights to bring a civil lawsuit and most pending civil lawsuits, survive the death of the person bringing them, often with a short extension of a statute of limitations which would have expired shortly after the death of the person. In these cases, the probate estate of the person with a right to bring the lawsuit or who is the party bringing the lawsuit is substituted for the person who died.

3. Personal civil actions lapse. The right to bring a civil lawsuit and pending civil lawsuits for personal injuries and defamation and certain other "personal actions" terminates at the death of the person bringing them. But, if a money judgment is obtained in such a lawsuit, that money judgment survives the death of the person bringing the claim and belongs to their probate estate. The status of a "personal action" in which a judgment has been entered but is subject to appeal is not necessarily consistent from state to state.

This is a bad rule and a better rule would be to allow all civil claims of a deceased person for money damages to survive their death. People who physically injure you or harm your non-economic interests in reputation or dignity or civil rights should not get a windfall when the person whom they wronged dies.

4. Divorces and legal separation. A divorce or legal separation action is dismissed if a final trial court property division/financial decree has not yet been entered in the case, but survives if a final trial court property division/financial decree has been entered. 

Whether this rule really makes sense or not is a close call. Allowing divorces and legal separations which had been filed already to continue after death and to be handled by the deceased spouse's probate estate, would not necessarily be worse, and there is good reason to say that it would be better (and it would be closer to the universal general rule). In reality, most divorce cases that are commenced after not abandoned due to a reconciliation mid-case, although it does happen. This rule was devised in the days of fault based divorce when filing for a divorce did not guarantee that it would be granted, something that is no longer the case in the no-fault divorce era. The economic incentive the current rule creates for a divorcing spouse to kill their soon to be ex-spouse if they think that they won't be caught is not a good one. But, this incentive is weaker in community property states where the property division upon death and the property division upon divorce are very similar.

Paternity can be established after either the child, or the parent, has died, if legally necessary for some purpose. Child support obligations generally survive death, although this can sometimes be adjusted prospectively. Alimony payments arising after the death of either the alimony beneficiary or the alimony payor die, although there are exceptions. 

Court orders awarding parenting time and parental responsibilities to a person who die are mostly moot after that person dies, although sometimes their right to appoint a guardian by a will or other document may be honored after their death.

5. Wrongful death plaintiffs. In most states, the right to bring a civil lawsuit for wrongful death belongs to statutorily designated next of kin of the person who was killed, rather than to the estate of the person who was killed.

This is an unduly complicated rule that can lead to problems. A better rule would be to give the right to sue for wrongful death to the probate estate, even though this means that the wrongful death lawsuit proceeds would then be available to the dead person's creditors.

6. Guardianships and conservatorships. When someone subject to a guardianship or conservatorship dies, there is a short post-death period in which the guardianship or conservatorship is finally settled and then converted to a probate case.

7. Deceased defendants. In almost every case, any civil liability for money damages that someone who died had under any legal theory survives their death, with their probate estate substituted for the person who died, sometimes with minor adjustments to the statute of limitations for suing. 

If the lawsuit was commenced before the person died, usually, their probate estate is substituted as a defendant in the case. 

If the lawsuit was not commenced before the person died, usually, a claim must be filed in the probate estate of the person who died (which can be opened by a creditor if the next of kin fail to do so), if the probate estate is solvent, by both the deadline of a statute of limitations and the deadline for filing probate claims.

If the lawsuit was not commenced before the person died, and there is no probate estate or the probate estate is insolvent, but that person was covered by liability insurance, a "direct action" can be filed against the insurance company, bypassing the probate estate, by the statute of limitations. 

One notable exception to this general rule is that federally guaranteed student loans are generally forgiven, as a matter of contract upon death.

8. In rem claims. If someone has obtained an interest in specific property, such as a judgment lien or a mortgage or a car loan or a co-ownership interest in the property, that right in the property survives the death of the owner of that property (and the death of the owner of the right in the property), even if a deadline for filing a claim in the probate estate is missed by the claimant. But, this "in rem" claim is limited to the specific pieces of property affected by the claimant's rights in that property.

Also, notably, a death is often an event of default under contracts to which the deceased person is a party, and collection efforts of in rem creditors like mortgage lenders, can't be delayed by having a probate estate file for bankruptcy.

The inability of probate estates to obtain temporary protection from collection actions by in rem creditors of the deceased person is a bad rule. The ability to declare a default under a contract such as a mortgage that is being fully performed is also sometimes problematic.

9. Limited Liability Companies and Partnerships In most U.S. states, owners of limited liability companies and partnerships that die or otherwise transfer their rights in the company or partnership have greatly diminished rights at that point, in contrast to owners of corporations whose estates generally receive all of the rights of the deceased corporation shareholder.

This is a bad rule for both lifetime transfers of ownership interests and at death. The corporate form rule is a much better rule.

10. Bankruptcy. I honestly don't know from memory what rules apply when someone in the midst of a bankruptcy proceeding dies. I suspect that the bankruptcy lapses, but I'm not sure that this is the case and any rule raised lots of tricky subsidiary issues related to how the loose ends of the pending bankruptcy case are wound up. I may supplement this post if I have occasion to look into this issue.

Federal Court Reforms Worth Considering

1. Reduce The Scope Of Federal Court Jurisdiction

In terms of major top line categories, federal criminal cases break down as follows:

* Violent Crimes 2.4%

* Property Offenses 11.3%

* Drug Offenses 27.8%

* Firearms and Explosives Offenses 13.9%

* Sex Offenses 3.6%

* Justice System Offenses 0.9%

* Immigration Offenses 33.5%

* General Offenses 1.9%

* Regulatory Offenses 1.5%

* Traffic Offenses 2.2%

The single most commonly charged offense is illegal reentry by an alien which accounts for 27.5% of all federal criminal defendants. Like all immigration offenses, it has no state law equivalent, but there is no really compelling reason to make this offense a crime, rather than simply making it an administrative immigration matter that is a grounds for deportation and for denial of future immigration benefits. Improper entry by an alien accounts for just 0.6% of all federal criminal defendants but is another unnecessary federal immigration crime.

many federal crimes . . . are easily repealed and left to state and local authorities (with the estimated impact on the federal docket): Most federal homicides (0.1%), bank robbery (0.6%), kidnapping (0.2%), most racketeering offenses (0.6%), theft and embezzlement from banks and financial institutions (0.1%), many federal fraud offenses (0.7%), pornography offenses (1.7%), and all intrastate drug offenses (25.5%), for example, could be repealed.

Combined, repealing the crime of illegal re-entry by an aliens, and the other crimes suggested would reduce the federal criminal docket by 57.5% and probably a little more than that . . . This would also greatly shrink the federal prison system, although not proportionately, since the immigration offenses decriminalized typically involve short, often mere "time served" sentences.

Combined with a significant (roughly 51.9%) reduction in federal civil dockets by simply repealing 28 U.S.C. §§ 1331 (general federal question jurisdiction) which accounts for about 18.4% of cases that don't have an additional specific jurisdictional basis, and 1332 (diversity jurisdiction) which accounts for 32.9% of civil cases filed in federal court), these straight forward reforms could greatly reduce the importance of the federal courts . . . , thereby decreasing the stakes in federal judicial appointments below the U.S. Supreme Court level.

From here. 

2. Increase the Size Of The U.S. Supreme Court

Add 6 new justices to the U.S. Supreme Court, bringing the total number of justices to 15, initially 3 ultraconservatives, 3 conservatives, and 9 liberals.

The U.S. Supreme Court quorum should be reduced from six of nine justices now, to eight of fifteen justices, to prevent a boycott that undermines a majority decision.

The number of justices in an expanded Supreme Court needed to grant certiorari would be six or seven as determined by the court.

The U.S. Supreme Court should elect its own Chief Justice rather than having that post designated by the President and the U.S. Senate, in furtherance of the separation of powers.

A larger court might also have a greater capacity to handle more cases per term since there would be fewer lead opinions to write per justice.

3. Transfer Indian Country felonies from U.S. District Courts to a new court.

Tribal courts handle misdemeanors committed by Native Americans on Indian Reservations and civil cases. Generally, felonies committed on Indian Reservations, by both Native Americans and non-Native Americans, are tried in U.S. District Court by federal prosecutors. 

I would favor creating a new federal trial court system and corps of federal prosecutors and investigators who would handle felonies committed by Native Americans on Indian Reservations, which make up a large share of the "blue collar crime" docket in the federal courts, with appeals from these courts going to a new federal circuit court.

4. Discouraging Judge Shopping and National Injunctions

* Require cases in a U.S. District Court to be randomly allocated to the judges in the district.

* Require cases challenging the constitutionality or validity of a federal law or regulation to be heard by a three U.S. District Court judge panel. There would be a direct appeal of right to the U.S. Supreme Court in cases where the law or regulation is invalidated, except as provided below.

* Limit facial challenges of federal laws and federal regulations to a three U.S. District Court judge panel of the U.S. District Court for the District of Columbia (with appeals to the U.S. Court of Appeals for the District of Columbia Circuit). 

* Clarify that the statute of limitations for challenges to the process by which a regulation is adopted runs from the date that the regulation was adopted (overturning a recent U.S. Supreme Court precedent). 

* Limit the authority to enter a national injunction that binds the United States vis-a-vis anyone other than the parties to the case to a three U.S. District Court judge panel of the U.S. District Court for the District of Columbia (with appeals to the U.S. Court of Appeals for the District of Columbia Circuit).

5. Splitting The 9th Circuit, And A Merger

Form a new 12th Circuit consisting of California, Nevada, and Arizona, leaving the remaining courts in the 9th Circuit in Alaska, Guam, Hawaii, Idaho, the Northern Marina Islands, Montana, Oregon, and Washington.

As much as anything, this pre-empts less desirable splits. There would be no pressure based upon the number of judges or docket load to split up the rump 9th Circuit with its six states and two territories, and it would have a balanced red-blue mix. The new 12th Circuit with three states would still be very large in terms of its number of judges and docket size, and it would be even more dominated by California than the existing 9th Circuit, although it would also have a red-blue mix.

Splitting California up would lead to chaos, and moving Arizona from the 9th to 10th Circuits would also lead to complicated issues of which circuit's precedents applied to it. Circuits have also always had at least three states, which this plan would maintain. California, Nevada, and Arizona have strong economic ties and would benefit from having only a single circuit's precedents to govern them, which would not happen, for example, in a plan where California, Hawaii, Alaska, and the two territories were part of a new 12th Circuit.

The D.C. Circuit could be merged into the Federal Circuit.

A mentioned above, there would also be a new U.S. Court of Appeals For Indian Country.

The split would also leave 15 U.S. Courts of Appeal (twelve numbered circuits, the newly merged Federal Circuit, the Indian Country Circuit, and the U.S. Court of Appeals For the Armed Forces), one of which could be allocated to each justice in an expanded U.S. Supreme Court, as a circuit justice for that court.

6. Circuit splits.

One way to mitigate the harm caused by circuit splits, albeit at the cost of certainty in any particular circuit, would be to downgrade the effect of a precedent, even in the circuit in which it was decided, from binding precedent to persuasive authority, on any point of law with regard to which there is a live circuit split that has not been resolved by U.S. Supreme Court ruling, statutory change in the law, or a later en banc decision in the same case that the panel decided.

This would bring more judges into the process of considering the issue decided by the initial panel on the policy and precedent merits as a case of first impression, rather than pursuant to a precedent which has been seriously questioned.

If the panel decision downgraded to persuasive authority is well argued, it will still be followed. But, if it was poorly reasoned, other judges considering the issue will decline to follow it.

This rule would also put more pressure on the U.S. Supreme Court and Congress to resolve legal issues upon which circuit splits arise. This pressure should be present because many firms and organizations and even individuals need to take an action which will ultimately be subject to legal review in more than one circuit and a circuit split cements the inability of these people to predict the legal outcome of that issue since they don't know where it will arise.

 From here.

7. Habeas corpus and prisoner's litigation

In 2004, there were about 19,000 non-capital federal habeas corpus petitions filed and there were about 210 capital federal habeas corpus petitions filed in U.S. District Court. There are about 60 habeas corpus cases filed in the U.S. Supreme Court's original jurisdiction each year. The U.S. Courts of Appeal do not have original jurisdiction over habeas corpus petitions. . . . As of 2004, the percentage of federal habeas corpus petitions involving state death sentences was still about 1% of the total. . . . About 63% of issues raised in habeas corpus petitions by state court prisoners are dismissed on procedural grounds and about 35% of those issues are dismissed on the merits, while about 2% are either resolved favorable to the prisoner on the merits or remanded to a state court for further proceedings at the U.S. District Court level. . . . [A]study found that when habeas corpus petitions in death penalty cases were traced from conviction to completition of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995." . . . [Another study] puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47% of the habeas petitions filed by death row inmates were granted." . . . about 20% of successful habeas corpus petitions involve death penalty cases. . . . As of 1991, the average number of federal habeas corpus petitions filed in the United States was 14 per 1,000 people in state prison, but this ranged greatly from state to state from a low a 4 per 1,000 in Rhode Island to a high of 37 per 1,000 in Missouri. 

The number of non-death penalty convictions reversed in federal habeas corpus proceedings is about 3 per 10,000.

From here.

These cases, and prisoner's litigation, are very numerous but often futile, in part due to harsh restrictions in the 1996 Prisoner Litigation Reform Act and the 1996 Anti-Terrorism and Effective Death Penalty Acts.

There were 9,690 prisoner's petitions, including habeas corpus petitions, out of 293,539 civil cases in U.S. District Court in the fiscal year ending September 30, 2023 (about half of the number filed twenty years ago in 2004), and about 3.3% of the civil docket. 

In the U.S. Courts of Appeal there are 9,089 prisoner's petitions out of 39,987 total appeals, in the same time period, and about 22.7% of all federal appeals.

Prisoner petitions constituted 69 percent of the civil pro se caseload. Civil rights actions accounted for 14 percent of the civil pro se caseload. The majority of prisoner petitions are filed pro se. . . . from 2000 to 2019, in 91 percent of prisoner petition filings, the plaintiffs were self-represented. In contrast, only 11 percent of non-prisoner civil case filings involved plaintiffs and/or defendants who were self-represented.

From here. 

A large share of filings in the U.S. Supreme Court are in forma pauperis (IFP) filings. In its 2022 annual report, the U.S. Supreme Court statistics were as follows:

The total number of cases filed in the Supreme Court decreased eight percent from 5,307 filings in the 2020 Term to 4,900 filings in the 2021 Term. 

The number of cases filed in the Court’s in forma pauperis docket decreased five percent from 3,477 filings in the 2020 Term to 3,288 filings in the 2021 Term. 

The number of cases filed in the Court’s paid docket decreased 12 percent from 1,830 filings in the 2020 Term to 1,612 filings in the 2021 Term. 

During the 2021 Term, 70 cases were argued and 63 were disposed of in 58 signed opinions, compared to 72 cases argued and 69 disposed of in 55 signed opinions in the 2020 Term. The Court also issued seven per curiam decisions in argued cases during the 2021 Term.

From here. 

About one in 470 IFP petitions are granted each term, while about one in 26 paid petitioners are granted each term. The IFP petitions are mostly, but not entirely, prisoner's petitions. 

This system isn't very functional either at providing relief for prisoners who have legitimate cases, or at managing cases without merit well. Access to the courts without counsel, particularly in the contexts of claims of wrongful convictions and prison conditions, is virtually meaningless. There are wrongs to be righted, amidst legions of bored prisoners with no downside in trying, but the current process does a poor job of sorting them.

At a minimum, this issue should be re-examined in good faith in search of a better solution.

8. Judicial ethics.

I would suggest two judicial ethics reforms:

* A rule that federal judges must recuse themselves from cases where the President or former President who appointed that judge is a party in a non-official capacity.

* A binding ethics code for the U.S. Supreme Court with the power to order a judge to recuse or impose other sanctions similar to those for other judges. Some violations would be criminal offenses.

9. Jurisdiction Over Corporations.

The recently overturned rule that a corporation may be sued, in general jurisdiction, any state in which it has an office for the conduct of business or an employee, should be reinstated by statute.