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Caselist.CitesClass[54]

Cites

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1		-Limiting QI clogs the courts – empirically confirmed – best study, Noll 8’
2		-Noll, David L. "Qualified Immunity in Limbo: Rights, Procedure, and the Social Costs of Damages Litigation Against Public Officials." NYUL Rev. 83 (2008): 911
3		-In the context of ordinary civil litigation between two private parties, the total (or “social”) cost of litigation is generally limited to the cost of litigating the claim, the cost to the public of providing a dispute resolution system, and the cost created by an incorrect decision.36 Damages litigation against public officers, however, implicates several additional costs.37 As the case law on qualified immunity suggests, these additional costs should be assessed when deciding how to adjudicate a claim against a government official for damages.38 Damages litigation gives rise to unique negative externalities. Consider a hypothetical, based loosely on Iqbal, in which a mid-level Justice Department lawyer, sued for her personal role in the development of an allegedly unconstitutional policy, is required to comply with discovery requests (depositions, responses to interrogatories, document productions, and so on). Discovery will produce several direct costs: The lawyer will not simultaneously be able to perform her primary responsibilities (a concern that assumes particular importance if she serves a critical public function);39 she will avail herself of government resources, such as legal and informal assistance from other government employees, that are unavailable to private litigants; 40 and, except in cases of clear illegal conduct, the government will most likely indemnify her for any eventual settlement or damages award.41 Beyond these direct costs, the case law recognizes four categories of indirect costs of damages litigation against public officials. In contrast to the opportunity costs of haling a government employee into court and indemnifying her against a judgment, these costs are far more difficult to measure. Moreover, they generally reflect the assumption on the part of the courts that negative systemic effects follow from allowing a “culture” of litigation against government officials to develop.42 The first indirect cost is the risk that the “fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.”43 A leading statement of the problem was delivered more than a half century ago by Judge Learned Hand.44 He argued that in the abstract, there is no legitimate reason that an official “guilty of using his powers to vent his spleen upon others” should escape liability.45 But Hand noted that denying recovery may nonetheless be in the public interest: The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.46 Characteristically, Hand recognized that for the purposes of determining whether a particular class of claims should be allowed, the aggregate costs and benefits are what matters, not the justice of the individual case. The second indirect cost is the deadweight loss of nonmeritorious litigation, is a problem exacerbated by the disproportionate number of nonmeritorious constitutional tort claims.48 In the most comprehensive study of § 1983 litigation yet conducted, Professors Theodore Eisenberg and Stewart Schwab concluded that “constitutional tort plaintiffs do significantly worse than non-civil rights litigants in every measurable way.”49 One article by a former Justice Department lawyer reported that of the more than 12,000 Bivens actions filed between 1971 and 1986, only thirty had resulted in judgments for plaintiffs, only four of those judgments had been paid, and settlements were rare.50 To be sure, there are meritorious damages claims against public officials, and they may have social benefits surpassing the value of individual claims. Yet the perception that constitutional tort cases “flood the federal courts with questionable claims that belong, if anywhere, in state court”51 is supported at least by anecdotal evidence and has undoubtedly affected the development of the modern qualified immunity doctrine.53
4		-Court clog leads to poor decisions and hurts the minorities the worst- turns case
5		-Brunt 15 Alexa Van Brunt, "Poor people rely on public defenders who are too overworked to defend them" Guardian, http://www.theguardian.com/commentisfree/2015/jun/17/poor-rely-public-defenders-too-overworked, June 17, 2015.
6		-Money can buy you a great defense team, but what if you can’t afford one? More than 80 of those charged with felonies are indigent. As a result, they are unable to hire an attorney and instead rely on representation by a public defender. Public defenders are, as a general matter, the hardest working sect of the legal bar. But our nation’s public defender systems have long been plagued by underfunding and excessive caseloads. In Florida in 2009, the annual felony caseload per attorney was over 500 felonies and 2,225 misdemeanors. According to the US Department of Justice, in 2007, about 73 of county public defender offices exceeded the maximum recommended limit of cases (150 felonies or 400 misdemeanors). Too often, those who are poor receive lower quality defense than those who have the means to pay. The on-going decimation of public defense prevents defense attorneys from conducting “core functions,” including factual investigation into the underlying charges. In a lawsuit brought in Washington State, it emerged that publicly appointed defense attorneys were working less than an hour per case, with caseloads of 1,000 misdemeanors per year. This state of affairs also leads to exorbitant trial delays. Consequently, roughly 500,000 pre-trial detainees sit in jail year after year before being adjudged guilty of any crime. This makes a mockery of the innocent-until-proven-guilty principle so sacred to our system of justice. Just two years ago, then-Attorney General Eric Holder acknowledged that the country’s indigent defense systems were “in a state of crisis.” Overworked and poorly prepared attorneys were unable to provide effective representation to those they counsel, in violation of their ethical obligations to provide competent and diligent representation and their clients’ rights under the Sixth Amendment. Holder’s words came on the 50th anniversary of Gideon v Wainwright, in which the Supreme Court held that states are constitutionally required to provide counsel to defendants unable to afford to hire their own. Four years later, the Supreme Court ensured the same right for juveniles. Gideon prompted the widespread creation of public defender systems on which so many rely. Yet, the conditions underlying Holder’s condemnation of public defense systems persist. Though funding for indigent defense systems vary by state, such systems are unified in being cash-strapped. Louisiana has had ongoing problems with the funding of its public defender systems since at least 1986 (controversially, Louisiana public defense is supported by the court costs and fines paid by public defenders’ own clients). Ten judicial districts in the state are slated to run out of funds to pay their public defenders as early as this month. Other parishes have already implemented “restricted services plans” – meaning public defenders are refusing to take on new cases. Indeed, in recent years public defenders in Missouri, Kentucky and Pennsylvania have also refused to represent new clients due to an overload of cases. The costs of relying on such overburdened attorneys to provide the primary assurance of a fair trial are significant. 95 of criminal cases end in plea bargaining. Excessive caseloads contribute to this trend, and result in a “meet ‘em and plead ‘em” system of justice, in which clients have little more than a brief conversation in the courtroom with a harried public defender before pleading guilty. In Chicago, where I practice as a civil rights litigator, people are spending longer stints in jail (an average of 56 days for those in on drug charges.) Part of the reason is the rampant use of continuances, a sign of an overworked public defender system. Consequently, pre-trial detainees incur a “trial tax” – those who decide to fight their case are forced to stay in jail longer than those who plead guilty. Rikers island survivor Kalief Browder faced this same dilemma. There are also clear racial implications to the poor health of public defender systems. Black people are disproportionately caught up in the criminal justice system. In 2011, black Americans – 12 of the US population – constituted 30 of persons arrested for a property offense and 38 of persons arrested for a violent offense. This group bears the brunt of our public defender systems’ underfunding and overwork.

EntryDate

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1		-2016-12-03 04:23:12.0

Judge

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1		-Kim Hsun

Opponent

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1		-Stony Point FB

ParentRound

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1		-29

Round

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1		-2

Team

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1		-Strake Jesuit Chen Neg

Title

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1		-ND - DA - Court Clog

Tournament

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1		-UT