Summary

• Objects (1 modified, 1 added, 0 removed)
  • Caselist.RoundClass[15]
  • Caselist.CitesClass[15]

Details

Caselist.RoundClass[15]

EntryDate

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1		-2016-11-06 01:05:27.526
	1	+2016-11-06 01:05:27.0

Caselist.CitesClass[15]

Cites

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	1	+Court Clog DA
	2	+Link
	3	+
	4	+Qualified immunity reduces the number of cases there will be in the courts because attorneys will be deterred from taking the cases, interlocutory appeal is permitted at every stage, federal judges defer federal agents, the inability to attain attorney’s fees, and individual agents don’t pay indemnification fees.
	5	+Reinert ’10 - Reinert, Alexander A. "Does Qualified Immunity Matter." U. St. Thomas LJ 8 (2010): 477.ZW
	6	+Nearly every respondent, regardless of the breadth of her experience, confirmed that concerns about the qualified immunity defense play a sub-stantial role at the screening stage.91 For some, qualified immunity was theprimary factor when evaluating a case for representation. Most of these re-spondents focused on the hostility to Bivens and other civil rights actions within our own circuits whgen explaining why qualified immunity was so significant a case-evaluation tool. For inctance, one advocate operating in the Fourth Circuit explained that the court’s approach forced him to take qualified immunity concerns into account at the outset of client screening. Similarly, a lawyer working in Illinois stated that because of the Seventh Circuit’s case law, he will not take a case if there is even the “slightest chance” the dismissal will be base on qualified immunity.∂ For those respondents who felt that qualified immunity was less signif-icant, the explanation often addressed other case-selection criteria. For in-stance, multiple respondents indicated that they only accepted the most egregious casa for representation, which made it unlikely that qualified immunity would play a role.94 While acceptance of egregious cases was not designed to avoid qualified immunity concerns, it had this incidental effect because it is unlikely that a defendant who committed an egregious viola-tion would also be protected by qualified immunity. For a few other respon-dents, qualified immunity did not play a role either because of self-professed hubris” or a unique mission. Respondents who worked at non-profit organizations or who had other law reform goals, for instance, ex-pressed concern about qualified immunity but stated that it was not disposi-tive because of their organization's mission.“∂ Only one respondent, with a small amount of experience litigating Biv-ens actions, the role of qualified immunity.” Instead, this re-spondent’s concerns about Riven: litigation had more to do with the “special factors” analysis than qualified immunity. Thus, my study suggests nearly overwhelming support for the proposition that qualified immunity considerations matter at the screening stage, and some attorneys consider them dispositive. 0n the substantive side, some respondents accounted for qualified immunity by not taking cases in which it could be raised, taking only the most egregious cases, or attempting to limit the impact of circuit precedent by litigating cases in state court (something that is a non-starter for Bivens claims).98∂ Qualified immunity also mattered to these attorneys on the procedural side. That is, the aspect of qualified immunity that permits interlocutory appeal at every stage of the proceeding, with stays of discovery routinely granted pending the resolution of a qualified immunity defense, also oper-ates as a substantial factor in case screening. Two respondents indepen-dently referred to the interlocutory appeal issue as a “killer,” because it slowa down the litigation.99 While an appeal is being resolved, evidence may become stale, witnesses may disappear, and a client may lose hope.100 For defendents in a case with political implications, the delays occasioned by the procedural aspect of qualified immunity may stretch litigation on so that it becomes the problem of a new administration.101∂ Finally, the attorneys offer some explanations regarding the relative scarcity of Bivens litigation and its perceived lack of success. Some respon-dents noted that one explanations for the difficulty bringing Bivens suits relates to the tendency of federal judges to defer to federal agents, particularly law enforcement agents.102 Others pointed to the related observation that federal agents are, as a matter of both perceptions and reality, more sophisti-cated, professional, and well-trained than their state counterparts.103 Finally, some respondents indicated that the inability to obtain attorneys’ fees for Bivens actions, as well as the formal position that the federal government takes regarding indemnification of individual employees, deters lawyers form bringing such claims. 104
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	8	+Qualified immunity is essential in preventing court clog.
	9	+Putnam ’92 - Charles T. Putnam Senior Assistant Attorney General, New Hampshire and Charles T. Ferris JD, Franklin Pierce Law Center, “Defending a Maligned Defense: The Policy Bases of the Qualified Immunity Defense in Actions Under 42 USC 1983,” Bridgeport Law Review, Vol. 12, 1992. MC
	10	+National resources are obviously scarce, yet increasing numbers of section 1983 actions are being filed in overburdened federal courts. Reducing the load of these cases on the court system is a third essential policy consideration. Some courts have questioned whether the abundance of section 1983 cases in fed-eral courts is an efficient use of judicial resources in light of the perception that many such actions are of questionable merit."6¶ The Supreme Court has thus encouraged the use of summary judgment where courts are faced with such cases. For instance, in Butz v. Economou,7 the Court held: Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading. Unless the complaint states a compensable claim for relief under the Federal Constitution, it should not survive a motion to dismiss. Moreover, the Court recognized in Scheuer that damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based on the defense of immunity.... In responding to such a motion, plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits.18 The courts' use of summary judgment and other procedural devices is thus an important safety measure for both the courts and defendants facing suit.
	11	+
	12	+Impacts
	13	+T/ Makes Civil Litigation Harder
	14	+Court clog increases the cost of civil litigation and the amount of time it takes for civil cases to get to trial, which turns case.
	15	+Thanawala ’15 - Thanawala, Sudhin Legal affairs expert and reporter for US News and Associated Press “Overloaded federal courts lead to delays in civil, criminal cases as judges try to keep up,” US News, September 27, 2015. http://www.usnews.com/news/us/articles/2015/09/27/wheels-of-justice-slow-at-overloaded-federal-courts. LG
	16	+Across the country, federal district courts have seen a rise in recent years in the time it takes to get civil cases to trial and resolve felony criminal cases as judges' workloads have increased, according to statistics from the Administrative Office of the U.S. Courts.∂ The problem is particularly acute in some federal courts such as California's and Texas's Eastern Districts. Judges there have workloads about twice the national average and say they are struggling to keep up.∂ The result, the judges and attorneys say, is longer wait times in prison for defendants awaiting trial, higher costs for civil lawsuits and delays that can render those suits moot.∂ "I think it's fair to say that things are quite bad," said Matt Menendez, a lawyer with the Brennan Center for Justice at New York University School of Law who has studied judicial caseloads.∂ Legal scholars say Congress needs to fill judicial vacancies more quickly but also increase the number of judges in some districts — both issues that get bogged down in partisan political fights over judicial nominees.∂ California's Eastern District, which covers a large swath of the state that includes Sacramento and Fresno, has had an unfilled judicial vacancy for nearly three years, and it has the same number of judicial positions — six — it had in 1978, according to the Administrative Office of the U.S. Courts.∂ The Judicial Conference of the United States, the national policy-making body for the federal courts, has recommended Congress double the number of judicial positions in the district.∂ In the late 1990s, the median time for civil cases to go to trial in the district averaged 2 years and four months. From 2009 to 2014, that number jumped by more than a year. The median time to resolve criminal cases nearly doubled to an average of 13 months.∂ "You're never out from under it," said Morrison England, the court's chief judge. "You're constantly trying to do what you can to get these cases resolved, and we just can't do it."∂ The weighted caseload per judge has climbed from an average of nearly 600 in the late 1990s to over a 1,000.∂ The Eastern District of Texas has seen similar increases.
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	18	+Court clog decreases the quality of judgments, which turns case.
	19	+Oakley ’96 - Oakley, John B. “The Myth of Cost-Free Jurisdictional Reallocation.” The Annals of the American Academy of Political and Social Science, vol. 543, 1996, pp. 52–63. www.jstor.org/stable/1048447.ZW
	20	+Personal effects: The hidden costs of greater workloads. The hallmark of federal justice traditionally has been the searching analysis and thought-ful opinion of a highly competent judge, endowed with the time as well as the intelligence to grasp and re-solve the most nuanced issues of fact and law. Swollen dockets create assembly-line conditions, which threaten the ability of the modern federal judge to meet this high standard of quality in federal adjudication. ∂ No one expects a federal judge to function without an adequate level of available tangible resources: suffi-cient courtroom and chambers space, competent administrative and re-search staff, a good library, and a comfortable salary that relieves the judge from personal financial pres-sure. Although salary levels have leased—encouraging judges to engage in the limited teaching and publica-tion activities that are the sole means of meeting such newly pressing fi- nancial obligations as the historically high mortgage expenses and college tuitions of the present decade—in the main, federal judges have received a generous allocation of tangible re- sources. It is unlikely that there is any further significant gain to be re-alized in the productivity of individ-ual federal judges through increased levels of tangible resources, other than by redressing the pressure to earn supplemental income. ∂ On a personal level, the most im-portant resource available to the federal judge is time.” Caseload pressures secondary to the indisr-criminate federalization of state law are stealing time from federal judges, shrinking the increments available for each case. Federal judges have been forced to compensate by operat-ing more like executives and less like judges. They cannot read their briefs as carefully as they would like, and they are driven to rely unduly on law clerks for research and writing that they would prefer to do themselves."∂ If federal judges need more time to hear and decide each case, an obvious and easy solution is to spread the work by the appointment of more and more federal judges. Congress has been generous in the recent creation of new judgeships," and enlargement of the federal judiciary is likely to continue to be the default response, albeit a more grudging one, to judi-cial concern over the caseload consequences of jurisdictional reallocation.∂ Systemic effects: The hidden costs of adding more judges. Increasing the size of the federal judiciary creates institutional strains that reduce and most ultimately rule out its contin-ued acceptability as a countermea-sure to caseload growth. While the dilution of workload through the ad-dition of judges is always incremen-tally attractive, in the long run it will cause the present system to collapse.
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	22	+Economic Impacts – T/Hurt the Poor
	23	+Court clog hurts small businesses:
	24	+Ashley Post Managing Editor, “Frivolous lawsuits clogging U.S. courts, stalling economic growth,” Inside Counsel (Web). July 22, 2011. Accessed November 5, 2016. http://www.insidecounsel.com/2011/07/22/frivolous-lawsuits-clogging-us-courts-stalling-eco?slreturn=1478366454 AT
	25	+The entrepreneurial system that we’ve developed for litigation in this country has always been an impetus to bringing cases that are close to the line or even over the line,” says Dechert Partner Sean Wajert. “When you have that kind of encouragement, you have a slippery slope, which sometimes people will slide down and get into questionable and even abusive and frivolous claims along the way.”¶ The result is clogged courts and corporate funds that finance defense costs instead of economic investment. Small businesses and startups with less than $20 million in revenue suffer the most because they pay a higher percentage of their revenues toward tort costs than larger companies do, and therefore they become less able to invest in research and development, create new jobs, and give raises and benefits to employees.
	26	+Job loss and financial hardship exacts a tremendous human cost.
	27	+Dao and Loungani ’10 - Dao, Mai, and Loungani, Prakash. “The Human Cost of Recessions: Assessing It, Reducing It.” November 11, 2010. IMF Staff Position Note, IMF Research Department. MO.
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	29	+The human and social costs of unemployment are more far-reaching than the immediate temporary loss of income. They include loss of lifetime earnings, loss of human capital, worker discouragement, adverse health outcomes, and loss of social cohesion. Moreover, parents’ unemployment can even affect the health and education outcomes of their children. The costs can be particularly high for certain groups, such as youth and the long-term unemployed (see Katz, 2010; von Wachter, 2010a, 2010b; Holzer, 2010). A. Cost to Individuals and Families Loss of earnings: Layoffs are associated with substantial loss of earnings both over the short and long run. That is, even when workers are re-employed shortly after displacement, they suffer a decline in wages compared to the pre-displacement job and compared to similar workers that were not displaced. The decline in earnings is on average observed for job losers in any period, but is most pronounced for job losers during a recession (see Farber, 2005). Studies for the United States show that these earnings losses persist even in the long run: 15–20 years after a job loss in a recession, the earnings loss amounts on average to 20 (see e.g. Jacobson et al., 1993; von Wachter et al., 2009). An illustration of an average earnings path before and after job separation during the recession in the 1980s using U.S. administrative data is taken from von Wachter et al. (2009) and reproduced in Figure 4. These sustained earnings losses stem from the decline in value of certain occupation- or industry-specific skills that become obsolete, from the time-intensive process of finding an appropriate job, in particular for a mature worker, but also from so called “cyclical downgrading”— when workers take up worse jobs than they otherwise would have had in the absence of a recession. There is also evidence that the adverse effects on lifetime earnings are most pronounced for unemployment spells experienced at youth, especially upon college graduation, making the rising youth unemployment rate a particularly serious concern (see Oreopoulos et al., 2008; Kondo, 2008; Kahn, 2010). Using similar data and empirical methodology as the U.S. studies above, Schmieder et al. (2009) also find that workers who lost their stable jobs in 1982 in Germany suffered earnings losses of 10–15 that lasted at least 15 years. Thus even in countries with more generous welfare systems and lower earnings inequalities, workers are not shielded from long lasting and large income losses caused by job displacement. Impact on health: The hardship of job loss also has serious negative impacts on health. In the short run, layoffs are associated with higher risk of heart attacks and other stress-related illnesses (Burgard et al., 2007). But even in the long term, the mortality rate of workers that have been laid off is on average higher than that of comparable workers that did not lose their jobs, controlling for other relevant individual and aggregate characteristics. Based on social security data for the United States, Sullivan and von Wachter (2009) estimate that increased mortality rate due to unemployment can persist up to 20 years after the job loss and lead to an average loss of life expectancy from 1 to 1.5 years (see Figure 5). Moreover, displaced workers’ loss in earnings is associated with the increase in mortality odds: workers that are displaced but are lucky enough not to suffer a loss in subsequent earnings are not found to have a higher rate of mortality (Figure 6). This suggests that financial resources serve as an important determinant of individual health by influencing the ability to invest in good health care (and access to health insurance) and a healthy lifestyle, while a shortage of resources leads to poor lifestyle choices and can also be the reason for stress and depression.
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	31	+Causes Rollback in constitutional Rights
	32	+Courts limit constitutional rights to counter court clog, Fallon 11 Richard H. Fallon, Jr., (Professor of Law @ Harvard). “Asking the Right Questions About Officer Immunity.” 80 Fordham L. Rev. 479 (2011). http://ir.lawnet.fordham.edu/flr/vol80/iss2/3
	33	+ As another possible response to a world without official immunity, the Supreme Court might diminish the scope of at least some substantive constitutional rights. Indeed, I think I can identify cases in which the Court has already trimmed the scope of constitutional rights for the purpose of stemming what it has regarded as an undue flood of suits for damages into federal court. ∂ Expressing concerns that the Due Process Clause should not become a font of tort law, the Court held in Paul v. Davis 48 that a plaintiff whose name and photograph had been included in a police flyer identifying active shoplifters had not alleged an actionable due process violation because mere harm to reputation does not count as a deprivation of constitutionally protected “liberty.” 49 Paul’s narrow interpretation of the due process right, which found little support in prior decisions, 50 was almost certainly “motivated by concerns about the section 1983 remedy” and the social costs of “the wholesale federalization of tort claims against state and local government officials and the corresponding prospect of massive damages liability.” 51∂ The Court further narrowed its interpretation of constitutionally protected due process rights, apparently in response to the same concern, in Parratt v. Taylor, 52 which held that random and unauthorized deprivations of liberty and property do not violate the Due Process Clause unless and until a state has failed to provide post-deprivation corrective process. 53 Again voicing concerns about the social costs of permitting § 1983 and the Due Process Clause to become fonts of tort law, the Court pared back the scope of previously recognized due process rights once more in Daniels v. Williams, 54 which held that merely negligent deprivations of liberty and property do not violate the Fourteenth Amendment. 55∂ With the Court having shrunk the scope of the due process guarantee in Paul, Parratt, and Daniels, it is easy to imagine the Justices similarly circumscribing other rights if, in the absence of official immunity, they regarded the social costs of damages actions as too high. For example, the Court could plausibly respond to a flood of suits seeking damages for unreasonable searches and seizures by holding that if any reasonable person could think a search reasonable, it is not unreasonable. 56

EntryDate

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	1	+2016-11-06 01:05:30.244

Judge

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	1	+Thomas Angus

Opponent

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	1	+Flintridge Sacred Heart ER

ParentRound

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	1	+15

Round

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	1	+2

Team

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	1	+Marlborough Coates Neg

Title

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	1	+Nov-Dec-Court Clog DA

Tournament

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	1	+Harvard Westlake