Like many first-year students, Potter is enamored with economic analysis. He appreciates the elegance with which it accounts for central features of tort law, and he finds the normative theory underpinning it attractive. But the more enchanted Potter becomes with the economic account of tort law, the more disenchanted he becomes with tort law itself. “Tort law is awfully expensive,” he thinks. “Surely, there must be a cheaper way to reduce the costs of accidents.” Then, remembering that he is the world’s most powerful wizard, he raises his wand. Potter casts a spell that works like this. Every time a person imposes a cost on another that would be compensable by the tort system (say, by flying carelessly and knocking someone off her broomstick), the spell transfers a sum of money equal to the cost from the bank account of the injurer to the account of the victim and dispatches a message informing the injurer of the debit to his account and the reason for it. Potter eliminates the administrative costs of the tort system with one swoop of his wand, and the results are impressive. The spell pushes accident costs nearer their optimal level than the tort system, because all and only those who are liable are made to pay, they are made to pay immediately, and they cannot avoid paying by investing in lawyers rather than safety.

Potter’s spell does just what economists tell us tort aims to do. It minimizes the sum of the costs of accidents and the costs of accident avoidance, and even better, it does so at no cost to us.  Yet, even if we are concerned only with welfare, the shift from tort to Potter’s spell is not an across-the-board win. This is because tort law generates benefits beyond those that its substantive rules aim at. For example, tort litigation allows plaintiffs to discover facts about their injuries. If you wake up from surgery partially paralyzed, and the doctor will not answer your questions, your only recourse may be to file a lawsuit alleging malpractice.  The answers plaintiffs get through discovery are a collateral benefit of tort law, which Potter’s spell, for all its virtues, would not replicate.

To know whether we should prefer Potter’s spell to tort, we would need an accounting of all of tort’s collateral benefits. However, even that would not be enough to allow us make an informed decision whether to take Potter up on his offer to cast his spell; we would also need to know what is on the other side of the equation. The spell eliminates administrative costs, but tort has other costs—call them collateral costs­—which the spell might mitigate too. Tort liability, for example, may discourage doctors from disclosing injuries they cause. Potter’s spell would not, as hiding medical errors would not be a way of avoiding liability.

One suspects that if we had a full accounting of tort’s collateral costs and benefits, we would prefer Potter’s spell to tort. The savings Potter promises are simply staggering.  But the point of this thought experiment is not to ask whether we’d be better off with Potter’s magic than we are muddling through on our own.  Thinking through the calculus necessary to evaluate Potter’s spell as an alternative to tort reveals a problem with the standard economic analysis of the institution.  The efficiency of any set of tort doctrines is a function of all of the costs and benefits it would generate if implemented. Yet economists focus their analyses almost exclusively on accident costs, costs of care, and administrative costs, overlooking tort’s collateral costs and benefits.

The failure of economists to grapple with tort’s collateral costs and benefits is not a small problem. Indeed, the oversight calls into question just about everything we think we know about the efficiency of tort doctrine. Consider tort damage awards. In many jurisdictions, plaintiffs may recover damages intended to compensate for lost enjoyment of life, sometimes known as hedonic damages. That makes sense, on the traditional view that “optimal ex ante deterrence is best served by requiring injurers who are held liable to pay the actual costs they have imposed.”¹ However, Sam Bagenstos and Margo Schlanger argue that “courts should not award hedonic damages for disabling injuries,”² because they reinforce the view that disability is a tragedy, and thereby make it harder to eliminate “the physical, social, and attitudinal barriers that make some physical and mental impairments disabling.”  If Bagenstos and Schlanger are right, hedonic damages have a collateral cost—they make the disabled worse off. It may, therefore, be optimal for the tort system to provide less deterrence than would have seemed optimal were those costs and benefits left out of the calculus.

This demonstrates that what counts as optimal deterrence is a function of collateral costs and benefits, in addition to accident costs, costs of care, and administrative costs.  And we would find something similar with any tort doctrine we looked at.  The conclusions of any economic analysis that does not account for tort’s collateral costs and benefits are suspect, as the rules that seem efficient when the collateral effects are not factored in may be inefficient when they are.  The result is that economists have a lot of work to do. If they want to place the economic analysis of tort on firmer footing, they have to gather information about tort’s collateral consequences. That will be hard, but the difficulty is not sufficient reason to carry on ignoring them. Until economists do the necessary work, economic analysis has little more relevance to the real world than Harry Potter’s spell. It is a fun game, but it neither tells us whether the tort law we have is efficient, nor what an efficient tort law would look like.

*   *   *

That is bad news for economists, but they are not alone.

Imagine again that Harry Potter leaves Hogwarts and heads to law school. This time, Potter takes torts from a professor who has a corrective justice theorist’s view of the institution. She tells Potter that tort law enforces a moral requirement that those who infringe the rights of others repair the wrongful losses they cause. Once again, Potter is taken with his professor’s account of the institution, but he is struck by the thought that tort law is awfully expensive and slow. “Surely,” he muses, “there must be a cheaper, faster way of doing justice between wrongdoers and their victims.” Then, remembering that he is the world’s most powerful wizard, Potter raises his wand. He casts a spell that works like this: every time a person causes a loss compensable by the tort system (say, by carelessly cracking someone else’s crystal ball), the spell transfers the precise sum of money necessary to repair the loss from the bank account of the injurer to the account of the victim.

Potter’s spell does just what many philosophers tell us tort law aims at—it enforces duties of repair, and it is fast and free.  However, even if we are concerned only with justice, we should have reservations about Potter’s spell. Though it is an open question whether Potter’s spell would do more justice than tort, tort does justice in ways that Potter’s spell does not.

Think for a moment about the ways in which we expect one another to respond to wrongdoing apart from the law. Imagine that Smith and Jones have agreed to meet for breakfast. Smith forgets to set his alarm and sleeps straight through the appointment. When he wakes up well past the appointed hour, what ought Smith to do? Well, it is too late for Smith to do what he promised—have breakfast with Jones at the agreed upon time. And it is probably too late for Smith to have breakfast with Jones at all, at least that day. But that does not mean that Smith should simply roll over and go back to sleep. Even though he cannot keep his commitment to Jones, it still makes demands on him. Once Smith realizes what he has done, he ought to call Jones, explain that he overslept, and apologize for missing breakfast. Jones, for her part, would be within her rights to demand an explanation and apology should she reach Smith first.  It is also possible that Smith should compensate Jones, but there is little doubt that explanation and apology are in order whether or not compensation is.  Of course this is a trivial case, but it is representative; explanation and apology are common ways of making amends for serious transgressions too.

Given that we expect more than compensation from those who wrong us, it should not come as a surprise that tort does more to respond to wrongdoing than enforce duties of repair.  Through pleading and discovery, defendants are required to explain themselves to those who charge them with wrongdoing.  And though apologies are not a tort remedy, the litigation process offers a second-best substitute. A plaintiff’s verdict assigns responsibility to the defendant for the plaintiff’s injury, giving her what she has improperly refused to accept on her own.

Once again, the point of this thought experiment is not to decide whether Potter’s spell would do more justice than tort.  The point is to show that the philosopher’s account of tort is incomplete, just like the economist’s. Philosophers treat lawsuits as instruments for determining whether the defendant committed a wrong for which she must compensate the plaintiff. If Potter could enforce duties of repair with a wave of his wand, so much the better. But there is more in the way of justice at stake in a tort suit, and philosophers’ failure to appreciate that means that they have missed important contributions that tort makes to our lives.

*   *   *

The charm of Harry Potter’s spell is that it does tort law without lawsuits; but lawsuits, it turns out, are part of the charm of tort law. The failure of economists and philosophers to appreciate that has led both to offer theories of tort that are radically incomplete. Economists have ignored tort’s collateral costs and benefits, and because of the oversight we must approach every assertion they make about the efficiency of tort doctrine with a healthy skepticism. Philosophers have missed the fact that tort does more to respond to wrongdoing than enforce duties of repair, and as a consequence, they have given us an impoverished theory of tort. That is the bad news. The good news is that now that Potter has helped us see the trouble with tort theory, we can set about fixing it. 

Acknowledgments:

Copyright © 2011 Stanford Law Review.

About the Author: Scott Hershovitz is an Assistant Professor at the University of Michigan Law School.

Citation: Scott Hershovitz, Harry Potter and the Trouble with Tort Theory, LEGAL WORKSHOP, Aug. 12, 2011, http://legalworkshop.org/2011/08/12/harry-potter-and-the-trouble-with-tort-theory

Based on: Scott Hershovitz, Harry Potter and the Trouble with Tort Theory, 63 STAN. L. REV. 67 (2011).

Creating and applying a measure across such a large population of judges necessitated the collection of a large dataset. Data were gathered from published and unpublished 2008 opinions issued by the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals.  The analyzed dataset (Case Database) from those circuits included 30,726 judicial votes from panel decisions.  In addition to the Case Database, a separate database (Judge Database) was constructed which included biographical and other data about individual judges. The Judge Database included data for all federal appellate judges that served on panels included in the Case Database.

Based upon the results of this study using the new dataset, there was a strong correlation between the level of deferencein a standard of review and the rate of reversal. Figure 1, below, illustratesthe reversal rates with the three most commonly applied standards of review, based on all circuits in this study.  The only non-deferential standard in Figure 1 is de novo review.  The other two standards afford deference to the judgments of district courts.  If standards of review were functioning as expected, and not acting as mere window dressing on opinions, it would be expected that reversal rates when using non-deferential standards would be higher than reversal rates when using deferential standards. Indeed, the results described in Figure 1 support that hypothesis.

Given the significant difference in reversal rates between the non-deferential and deferential standards, there was good reason to think that studying reversal rates of different judges using deferential standards would provide a way to capture the elusive baseline associated with judicial activism.  By focusing on the situations in which a judge was expected to defer more frequently to other constitutional actors, a measure was created to determine a judge’s relative activism level in the aggregate.

However, such a measure by itself was incomplete. After all, if ideology is an important predictor of judicial decision-making, as previous studies have indicated, then merely counting instances when a particular judge failed to defer would be insufficient.  A reversal might indicate only an ideological disagreement with a lower court, rather than one based upon a judge’s activism. To address this problem, there was a need toremove the effects of cases decided only by ideology or other factors separate from the concept of activism.  Judicial decisions using non-deferential (de novo) standards provide a means to isolate aggregate activism because a judge is unfettered by the formalist rule of deference in such cases.  Thus, the raw measure of an “Activism Differential” for an individual judge adopted in this study was:

Activism Differential = Reversal rate using de novo standard – Reversal rate using deferential standards

For each judge, a raw Activism Differential was computed.  However, there were four adjustments made to the raw Activism Differentials in order to allow for valid inter-circuit comparisons between judges and comparisons between circuits:the case mixes of judges, panel effects, and circuit differences, and sought to provide a meaningful scale.

Although the Judge Database included data from over 1,400 judges who served on the United States Courts of Appeals, sat by designation on those courts, or had their decisions reviewed by those courts, many of these judges only issued votes in a limited number of cases.  Because the smaller sample sizes of votes for these judges might yield unacceptable error rates, the following analyses examined only the 177 judges who had at least 200 interactions with other judges.  Figure 2 illustrates the distribution of these Activism Scores.

Notably, as indicated in Figure 2, the mean Activism Score was 50.2 and one standard deviation was 21.3 points.

As noted at the opening of this piece, the concept of judicial activism has become so politicized that it has become part of virtually every major discussion concerning the judiciary and individual judges.  Among the various concerns about activism is whether individual Presidents or political parties have been responsible for appointing more activist judges to the United States Courts of Appeals.  Traditionally, judges appointed by Democratic Presidents have been labeled as “activists” who push social agendas on an unwilling public.  However, increasingly there are attacks on Republican appointees for “right-wing judicial activism.”

The data did not support either hypothesis.  As demonstrated in Figure 3 below, for judges who issued opinions in 2008, the data did not indicate that the appointing President had a statistically significant correlation with a judge’s activism.

The Activism Scores of Presidents Carter, Reagan, George H.W. Bush, Clinton, and George W. Bush varied by a mere 6.2 points, which linear regression determined was not statistically significant.

Looking solely at the political party of the appointing President also did not yield results that would support either hypothesis.  Figure 4 below illustrates that Republican and Democrat appointees had similar Activism Scores in the aggregate.

Overall, the appointees of Democratic Presidents exhibited a slightly higher average Activism Score (52.3 versus 48.9), but this difference was not statistically significant based on a linear regression of the Activism Scores and the political party of the appointing President. As a result, the study results provided neither a reason to believe that particular Presidents appoint more or less activist judges nor one to suspect that the political party of the appointing President is related to the activism of judges.

An observer might contend that the limited difference in activism based on the party of the appointing President was due to the prevalence of an ideological split between the Senate and President during the time period when most of the 2008 judges were appointed.  As a corollary, one might expect a higher rate of activism among judges when the President and Senate were of the same party, since the President would be freer to appoint judges that would be more active in support of the President’s ideology.  Thus, the hypothesis would be that unity among the Senate and the President at the time of appointment would produce more activist judges.  However, as Figure 5 indicates, the data did not support this hypothesis.

The data indicated that the party alignment of the Senate and President did not cause a substantial change in the activism of the appointed judge. Again, a linear regression found that the data did not support a statistically significant correlation between a judge’s activism and whether the President and Senate were from the same party at the time of confirmation.

It might also have been possible, even likely, that the President took into account the composition of the Senate before nominating a judge for the Courts of Appeals.  A President might therefore have nominated judges that were closer to the partisan makeup of the Senate in order to ensure confirmation.  A hypothesis would thus contend that the political makeup of the Senate at the time of confirmation would be correlated with the Activism Scores of nominees.  Figure 6 below illustrates the distribution of Activism Scores based upon the number of Republican Senators at the time of the nomination.

As is exhibited in Figure 6, there was no apparent connection between the composition of the Senate at the time of appointment and the judge’s activism.  A linear regression confirmed that the data did not exhibit a statistically significant correlation between the political composition of the Senate at the time of confirmation and a judge’s activism.

Unlike with Supreme Court Justices, there have been very few measures of the ideology of individual judges on the Courts of Appeals.  Nonetheless, existing research has indicated that ideology is a factor in predicting judicial outcomes at the federal level.  A refinement on the appointing-President measure incorporated data about the Senators from the state of the nominated judge.  Lee Epstein, Andrew Martin, Jeffrey Segal, and Chad Westerland calculated, based upon the prior work of other scholars, “common space scores” for individual active judges to measure their ideology.  The common space scores mapped the ideology of judges on the Courts of Appeals on a continuum of the political spectrum, instead of using the binary construction required when looking to the party of the appointing President.  A hypothesis would hold that the ideology of the judge would correlate with activism.  However, as Figure 7 illustrates, there was no obvious connection between judicial ideology as measured by common space scores and activism.

Regression analysis did not reveal a statistically significant relationship between common space scores and activism.  Therefore, even when ideology was computed using the leading measure of the concept, there was no observed connection between judicial ideology and activism.

Judicial activism is a concept that has been used, abused, studied, and debated.  It has become an important and permanent fixture in discussions about American judges and the judiciary.  To give greater coherence and cogency to future debates about such subjects, it is helpful to have empirical data about the concepts of “judicial activism” and “restraint.”

Despite the beliefs of partisans on all sides, there is no evidence of any statistically significant connection between judicial activism and political party.  The results indicated no such evidence of a relationship for the appointing President, the appointing President’s party, or the commonality of party between the President and the majority of the Senate.  The similarities between the activism levels of appointees from different Presidents and political parties poignantly illustrates the degree to which partisan attacks using the activist label are unsupported by the data that have been studied.

Acknowledgments

Corey Rayburg Yung is an Associate Professor of Law at John Marshall Law School, Visiting Professor of Law at University of Kansas School of Law, and Visiting Professor of Law at University of Iowa College at Law.

Copyright © 2011 Northwestern University School of Law.

This Legal Workshop Piece is based on the following: Corey Rayburn Yung, Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the Federal Courts,
105 NW. U. L. REV. 1 (2011).

This appropriation of the concept of culture by disciplines beyond anthropology has not passed over the law.  Legal scholarship contains at least twelve approaches that connect the concepts of law and culture.  Some of these approaches may be dated to the first half of the nineteenth century and some to the first half of the twentieth century.  This article discusses three of the major approaches that connect culture to law. 

The first approach is that of the historical school, which arose in German jurisprudence in the first half of the nineteenth century.  The historical school views law as a product of the national culture, embedded in the daily practices of a people; law begins as culture and ends up as the law of the state.  According to the historical school, statutes are not supposed to create law; rather, the function of statutes is to reflect already existing social practices.  And, just as each people has its own language, expressing its unique national spirit, so also it has its own distinctive law.

The second approach, the constitutive approach, developed in American jurisprudence in the 1980s.  It views law as participating in the constitution of culture and thereby in the constitution of people’s minds, practices, and social relations.  This approach thus takes the influence between law and culture to work in the opposite direction to that assumed by the historical approach; in both, however, law is an inseparable dimension of social relations.

Since the 1980s, a rich scholarship has grown in the United States.  This scholarship perceives law as playing an important role in constituting individuals’ minds and, through that, the practices and social relations in which individuals are involved.

Legal realists of the 1920s normatively argued that, in dealing with legal problems, one needs to openly expose and discuss the normative meaning of possible legal solutions and the social implications of possible solutions.  This argument gave birth to an instrumental conception of law, which reached its peak in American law in the 1960s and 1970s, following the landmark 1954 case of Brown v. Board of Education.¹  Following Brown, many legal scholars in the United States adopted the view that law may serve as an important instrument for effecting social change, particularly the attainment of higher levels of distributive justice and equality.  

The constitutive approach gained ascendance in American law in the 1980s, challenging the dominance of the instrumental approach in thinking about law among scholars dealing with the interrelationship between law and society.  The constitutive approach sees law as constitutive of culture, and consequently as creating meaning in the minds of individuals and constituting the practices and social relations in which they are involved.  Put differently, the constitutive approach holds that law, by its participation in the constitution of culture, also participates in the creation of the mental categories through which individuals perceive the social relations in which they take part, i.e., their status vis-à-vis other individuals, what others are entitled to do to them, what they are entitled to do to others, and the self-perceived identities of individuals and groups.

The constitutive approach, therefore, sees law as acting upon society in a much more profound way than does the instrumental approach.  According to the constitutive approach, law is not an entity distinct from society; it is embedded in the social relations that it constitutes, making the two inseparable. 

The third approach, which is present in twentieth-century Anglo-American jurisprudence, views the law created and applied by the courts as a distinct cultural system in its own right.  Practitioners of the law internalize this culture in the course of their studies and professional activity so that it comes to constitute, direct, and delimit the way they think, argue, resolve cases, and provide justifications.  

Four authors share a (not necessarily explicit) perception of the law created and applied by the courts as a distinct cultural system: Karl Llewellyn, James Boyd White, Pierre Bourdieu and Stanley Fish.  

The legal realists descriptively argued that legal formalism fails to accurately portray legal decision-making processes, even within the context of a legal system that adheres to the essentials of a formalist conception of law.  The realists demonstrated that, in many cases, adjudication is not premised on the application of a procedure but is, rather, an activity at whose core lie discretion and choice within the context of rich contents that are open to multiple conflicting interpretations.  

The descriptive argument of legal realism forced the realists to face “the devil of subjectivism”—the fear that, if formalism fails to accurately portray legal decision-making processes, then the true picture is that judges are not constrained in any way in resolving legal disputes and every judge may resolve a case any way he or she wishes.

Karl Llewellyn was a great admirer of the common law and of the Aristotelian practical-wisdom decision-making model on which the common law is premised.  Llewellyn was, therefore, very much disturbed by the claim that a post-formalist law is subjectivist law.  Early on in his career, he set himself the task of rehabilitating the credibility of the common law, a project that would demonstrate that common law decision-making processes meet a reasonable standard of objectivity, even within the context of a post-formalist conception of law that recognizes the important role played by judges in legal decision-making. Llewellyn accomplished that by presenting the law of the courts as a cultural system.

Llewellyn’s argument was premised on two pillars that to some extent overlap.  The first is the contents of the law and the modes of thought prevalent in the law.  Llewellyn argues that, in the course of their professional lives, lawyers internalize the contents of the law and the modes of thinking and argumentation prevalent in the law, and, therefore, these contents and modes not only pervasively and profoundly structure the way lawyers function in the law but also severely constrain the options available to them.  Thus, lawyers that operate in the same legal system will act in similar fashion, and no far-reaching variety will be present in their conduct when they handle similar legal problems.

The second pillar on which Llewellyn’s argument is premised is the professional culture within which lawyers and judges operate.  Llewellyn writes about law in terms of “craft”, i.e., a profession that employs a repertoire of “do and don’t” rules internalized by those operating in the field in the course of their professional training and functioning.  Llewellyn argues that the customary conduct of courts and the modes of justification prevalent in legal opinions embody such craft rules, and they channel judges into non-subjectivist conduct.  

A perception of the law of the courts as a distinct cultural system is present in the writings of James Boyd White, the founding father of the “law and literature” movement in American law and a prominent thinker on the relationship between law and culture.  White sees adjudication as a discursive process in which various normative options are raised, clarified and discussed; eventually, one of them is chosen.  According to White, the operation of law by courts is, therefore, “a continual process . . . [in which] [t]he community makes and remakes itself . . . over time.”

White also sees the law created and applied by the courts as a distinct cultural system, i.e., as a distinct system for assigning meaning to events that take place in the daily lives of individuals.  For White, lawyers are people who operate using the contents of the legal culture and who are capable of developing, in the context of that culture, arguments that suggest normative solutions to the problems brought to the resolution of the courts.  Therefore, law is the collection of resources a culture makes available to lawyers for the sake of thinking, arguing, and persuading.  The activity of lawyers is, first and foremost, argumentative, according to White, and a central trait of the legal culture is that it is argumentative—continuously developing and reshaping itself by presenting arguments in the context of the options available as part of the legal culture, which lawyers constantly make and remake.

Pierre Bourdieu, one of the greatest sociologists of culture in recent decades, argues that lawyers, the actors who function in the legal field, share a common habitus, so that what distinguishes them from non-lawyers is their abidance by the legal habitus.  This argument connects to another of Bourdieu’s arguments, that lawyers make their decisions not by following rules but rather by following the dictates of the legal habitus.

Stanley Fish views law as a practice taking place in the context of an interpretive community.  The similarity between Fish’s and Bourdieu’s perception of law is clear.  Bourdieu argues that a distinct habitus that distinguishes lawyers from non-lawyers activates legal actors.  Lawyers’ activity is characterized by a low level of consciousness; it takes place in accordance with a feel for the game, as opposed to rule-following, calculation, weighing, and deliberation.  Likewise, Fish argues that rules do not govern lawyers’ actions, but that professional conventions that prevail in their field of activity, which they usually internalize in the course of their professional socialization, do.  The similarity between this understanding of the nature of activity in the legal field and Karl Llewellyn’s understanding of law as craft is also obvious.

Beyond these three approaches to the relation between law and culture, at least nine additional approaches are identifiable in legal scholarship.  The first, “law and anthropology,” applies anthropological research methods to the study of law.  Second is the “legal culture” approach, which deals with how people view the legal system and people’s beliefs about the feasibility of taking legal action in order to promote their interests.  The third, the “legal consciousness” approach, deals with the legal knowledge invoked by people in the course of their daily social interactions.  The fourth, the “law and popular culture” approach, deals with law’s representations in popular culture, its influence over popular culture, and the influence of popular culture on law.  The fifth approach deals with the connection between law and the production of cultural artifacts, such as books, music, etc., and naturally focuses on intellectual property law.  The sixth approach, “law and multiculturalism,” is part of the voluminous literature published in the last four decades on multiculturalism and discusses the functions that law plays and the normative solutions it should adopt in culturally diversified countries.  The seventh approach looks at the connection between law and culture from the perspective of particular legal branches or doctrines.  The eighth approach, “law and culture in law and development,” discusses the role of cultural change in legal and economic development processes taking place in developing countries.  The ninth approach, law as an auto-poeitic system, views law as an autonomous system whose contents and communications affect social reality in a unique manner, mutually influencing each other and creating law’s contents from within.

This mapping is tentative and does not purport to be entirely inclusive; other schemes could perhaps be suggested.  I do hope, however, that it gives some preliminary idea of the widespread use of the concept of culture in the law, and that it invites further reflection on other possible ways of employing the concept of culture in legal scholarship to gain a richer understanding of the legal phenomenon.

Acknowledgments:

Menachem Mautner is the Danielle Rubinstein Professor of Comparative Civil Law and Jurisprudence at the Tel Aviv University, Faculty of Law.

This editorial is based on the article, Menachem Mautner, Three Approaches to Law and Culture, 96 CORNELL L. REV. __ (forthcoming 2011).

Copyright © 2011 Cornell Law Review.

A lawyer may be given, or learn the location of, an item that implicates a client in crime. The source may be the client or the client’s friend or relative. A lawyer may have a good reason for taking the item. She may need to inspect, read, or test it in order to advise the client. It may pose a danger to others, a weapon for example. Or a lawyer may want to safeguard stolen property for eventual return. Where the item is neither dangerous nor stolen, the lawyer, though willing, may be unable to return it because the source is in jail, has disappeared, or refuses to accept it.

Each of these variations appears in cases, which uniformly hold that a lawyer who takes but cannot or does not return an item must turn it over to the authorities without being asked. Failure to do so will risk discipline or prosecution for obstruction of justice. What’s more, she must do this even if the item will incriminate her client through fingerprints, ballistics tests, handwriting or otherwise.

Courts also hold that a lawyer must provide the authorities with proof of her source if it was not the client directly, even if it was a location revealed by a client. Evidence of source – for example, a client’s relative or his home – may tie the item to the client and help convict him.

A mandatory turnover rule can harm more than just clients. When faced with a choice between protecting the interests of others and avoiding a duty that will harm their clients, lawyers will do the second. So they may leave stolen property with the thief or in a location where others may find it. They may leave clients or others in possession of dangerous weapons, perhaps the very weapons used in the crime under investigation.

Another remarkable fact is that all the turnover cases involve violent crimes. In some cases, the item was a weapon, in others the fruits of the crime. In a few cases, the item was a writing or document that incriminated the client. But I found no decision holding that lawyers who receive a writing or document implicating a client in a white collar crime – tax evasion or securities fraud, for example – must turn it over.

The current rule can clash with a client’s right to the advice of counsel, embedded both in common law and in the Sixth Amendment if adversarial proceedings have started. A lawyer may refuse to accept an item she might need to inspect or read in order to give a client advice. The current rule may also undermine a client’s Fifth Amendment privilege against self-incrimination. The Supreme Court has told us that a lawyer may refuse to produce subpoenaed items she received from a client in order to advise him if the act of production doctrine would have allowed the client to refuse. That doctrine permits a person to cite the privilege against self-incrimination if the very act of producing a subpoenaed item will be testimonial. It may be testimonial if production confirms the item’s existence, that the target of the subpoena possesses it, or that it is authentic; or if production reveals a crime of which the government is unaware. By circumventing the need for a subpoena, the turnover duty eliminates the client’s opportunity to assert attorney-client privilege or Fifth and Sixth Amendment rights.

Except for an occasional dissent, courts have largely failed to identify, much less reconcile, the competing interests at play when lawyers receive physical evidence of a client’s criminal conduct. Nor have courts explained why the rule appears to differ for white collar clients.

Paradoxically, an opposite rule – one that permitted lawyers to retain real evidence of criminal conduct in a safe place and unaltered – would be beneficial across the board. Stolen property would more likely be returned to their owners. Weapons would be off the street, as would drugs. Lawyers would be free to accept and inspect or read an item in order to give competent advice, without acquiring a duty then to give the item to law enforcement if return was not possible. The state would also benefit because by preserving real evidence, a lawyer assures its availability for trial. Consider the question in the opening paragraph. Under a different rule, the inquiring lawyer could place the gun, the burglar’s tools, and the Picasso in the firm’s safe rather than let the client depart with them.

So why haven’t the courts adopted the opposite rule? Why have they insisted on a turnover duty without examining the perverse incentives it creates? The answer may be short-term thinking. Courts seem to assume that allowing lawyers to retain real evidence will reduce the likelihood that the evidence will ever become available to the state. They also predict that an opposite rule will make law offices the repositories of weapons, contraband, and stolen goods, leading to searches of law offices, which no one relishes.

As it happens, a rule that allows lawyers to receive and hold real evidence that they cannot or should not return to the source need not have these consequences. The state would in fact be in a better position with such a rule than under the current rule because lawyers will be able (even if not required) to preserve evidence, which may otherwise be lost.

How can we avoid harm to the state under a rule that allows a lawyer who cannot return an item of real evidence to the source (because the source has disappeared, is in jail, or will not accept it) or should not do so (because the item is stolen or dangerous) to hold the item unaltered in his or her office? Building on the work of Professor Kevin Reitz, but granting lawyers broader authority than he does to receive and hold physical evidence, I propose that the state can be fully protected if it can subpoena items from the lawyer, leaving her to assert whatever arguments are available to resist the subpoena, or if the state can conduct a non-physical “search” of the lawyer’s office. A non-physical search can take the form of service of a traditional search warrant that requires the lawyer to produce the items identified in it, with the same ability to move to suppress as she would have for a traditional search.

This scheme has a gap which I propose to close. The gap arises if the state does not know the identity of the lawyer representing (or who has represented) a person who becomes the target of the state’s subpoena or search. Subpoenas to or searches of that person will be fruitless if he has given the evidence to his lawyer. The solution is to require lawyers who retain physical evidence, and whose identity is unknown to the state, to record the name of their client or source in a registry created for this purpose. So, for example, if the lawyer in the opening paragraph disarms her client and secures the Picasso, but the authorities do not know that she is the lawyer for the client, she must record that fact in the registry.

The registry can be under the control of the court, a disciplinary committee, or a state bar group. If and when the state has reason to subpoena or search the client, it can ask the registry for the identity of any lawyer who has registered as representing the client. It can then subpoena or “search” her as well and the lawyer can resist the subpoena or move to suppress the fruits of the search. The registry can be similarly used when a third party, say a friend or relative of the client, is the lawyer’s source or if a lawyer delivers non-incriminating evidence (e.g., stolen property that cannot be traced to the client) to the state anonymously.  In this way, in the unusual circumstance where the state does not know the identity of a lawyer who may be holding evidence it aims to get from the lawyer’s source through search or subpoena, it can learn her identity and pursue any rights it may have to the item or proof of the lawyer’s source.

The Article explains in greater detail how the registry would work, using the facts of more than a dozen cases and multiple variables. Its animating purpose is to remove the misguided incentives that the current rule encourages and to safeguard the client’s recognized legal, sometimes constitutional, interests while at the same time protecting (and even enhancing protection for) the legitimate interests of the state.

Acknowledgments:

Copyright © 2011 Stanford Law Review.

About the Author: Stephen Gillers is the Crystal Eastman Professor of Law at the New York University School of Law.

Citation: Stephen Gillers, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, LEGAL WORKSHOP, July 27, 2011, http://legalworkshop.org/2011/07/17/guns-fruits-drugs-and-documents.

Based on: Stephen Gillers, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, 63 STAN. L. REV. 813 (2011).