Noncitizens, Mental Health, and Immigration Adjudication

When a noncitizen commits a crime in the United States, they become vulnerable to the possibility of the government instigating removal proceedings against them. According to the Immigration and Nationality Act, the noncitizen can argue in their defense that the crime they committed was not particularly serious. In this “particularly serious crime” determination, immigration judges are allowed to consider a variety of factors to determine the danger of the noncitizen to the community of the United States. However, prior to May of 2022, immigration judges were categorically barred from considering mental health evidence in their analysis. In Matter of B-Z-R-, this changed. The new ruling by Attorney General Merrick Garland presents itself as a potential sea change in the consideration of mental health in immigration adjudications, ridding the complete bar on mental health evidence in deportation relief proceedings. This Essay argues, however, that the full effects of the ruling will only be realized if more guidance and resources are provided to immigration judges. The Board of Immigration Appeals should set clear guidelines pertaining to the consideration of mental health evidence, and the Executive Office for Immigration Review should provide funding for forensic mental health evaluations and psychiatric support in removal proceedings. The three proposed guidelines in this Essay will ensure that the mental health of noncitizens is being adequately and fairly considered by judges when respondents are seeking relief from deportation.

Introduction

Refugees are at a higher risk of developing mental health symptoms or already having undiagnosed mental health disorders. The American Psychological Association has pointed to factors—like migration-related stress, trauma suffered in their countries of origin, language barriers, fear of deportation and family separation, rising detention rates, barriers to healthcare access, financial instability, and a lack of work opportunities and education—that make it more likely for immigrants to suffer from a mental illness.1.See Virginia Barber-Rioja & Alexandra Garcia-Mansilla, Special Considerations When Conducting Forensic Psychological Evaluations for Immigration Court, 75 J. Clinical Psych. 2049, 2051 (2019) (canvassing the various circumstances resulting in greater mental health risks for immigrants).Show More These factors are linked to post-traumatic stress disorder, depression, anxiety, and emotional distress for migrants.2.See Irina Verhülsdonk, Mona Shahab & Marc Molendijk, Prevalence of Psychiatric Disorders Among Refugees and Migrants in Immigration Detention: Systematic Review with Meta-Analysis, 7 BJPsych Open 1, 1, 5 (2021) (reporting that among adult migrants, prevalence rates were 68% for depression, 54% for anxiety, and 42% for post-traumatic stress disorder).Show More The immigration system in our country addresses some of these factors while noncitizens are pushed through the system, such as providing procedural safeguards when respondents are deemed incompetent or providing mental health services while a noncitizen is in detention.3.See Matter of M-J-K-, 26 I. & N. Dec. 773, 773 (B.I.A. 2016); ICE Health Service Corps, U.S. Immigr. & Customs Enf’t (June 9, 2023), https://www.ice.gov/detain/ice-health-service-corps [https://perma.cc/2SJ3-MLJB].Show More But should the immigration courts be considering these factors when deciding whether to deport noncitizens with mental health disorders that arise from prior to the immigration process?

On May 9, 2022, Attorney General Merrick Garland decided “yes” in the context of a noncitizen having committed a crime leading to their deportation, resulting in the overruling of Matter of G-G-S-.4.Matter of B-Z-R-, 28 I. & N. Dec. 563, 563, 567 (A.G. 2022) (overruling the Board of Immigration Appeals’ holding in Matter of G-G-S-, 26 I. & N. Dec. 339 (B.I.A. 2014), that adjudicators may not consider the mental health of a respondent in determining whether a respondent was convicted of a particularly serious crime).Show More Immigration judges may now consider a respondent’s mental health in determining whether an individual, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.”5.Id. at 563 (quoting 8 U.S.C. § 1158(b)(2)(A)(ii)).Show More If so, withholding of removal relief will be denied, and the respondent will be removed to their country of origin.6.8 U.S.C. § 1158(c)(2)–(3).Show More

This Essay argues that the new ruling by the Attorney General in Matter of B-Z-R- has presented itself as a potential sea change in the consideration of mental health in immigration adjudications, but the full effects of the ruling will only be realized if clear operative guidelines and resources are provided to immigration judges. For noncitizens seeking deportation relief, this decision presents a pivotal opportunity to explain why their past criminal conduct does not make them a danger to the community of the United States at present. For immigration judges, this decision provides just another factor of many that can be considered in the deportation determination. However, with a backlog of cases,7.Holly Straut-Eppsteiner, Cong. Rsch. Serv., R47077, U.S. Immigration Courts and the Pending Cases Backlog 1, 31 (2022) (noting that at the end of the first quarter of fiscal year (“FY”) 2022, the backlog reached an all-time high of 1.5 million cases, with 578 immigration judges on staff to adjudicate them).Show More a lack of expertise about mental health,8.See Amelia Wilson, Franco I Loved: Reconciling the Two Halves of the Nation’s Only Government-Funded Public Defender Program for Immigrants, 97 Wash. L. Rev. Online 21, 48–49 (2022) (discussing challenges in training immigration judges to evaluate mental health concerns).Show More and an insufficient amount of resources and guidance to aid in their determination,9.See id. at 50 (discussing shortfalls in funding and immigration judge training).Show More it is unlikely immigration judges will be motivated to adequately and fairly consider the noncitizen’s mental health at the time of the crime.

Noncitizens with mental illnesses are left vulnerable when navigating the immigration court system given the stigmatization and lack of understanding by those without expertise in mental health.10 10.Ayala Danzig & Marina Nakic, Appellate Court Clarifies That Immigration Judges Cannot Disregard Mental Health Professional Guidelines, 50 J. Am. Acad. Psychiatry & L. 158, 161 (2022).Show More To better ensure the consideration of mental health in the particularly serious crime analysis, the Board of Immigration Appeals (“BIA”) should set clear operative guidelines pertaining to the consideration of mental health evidence, and the Executive Office for Immigration Review should provide funding for forensic mental health evaluations and psychiatric support in removal proceedings.

Part I explains the “particularly serious crime” analysis in Section 241(b)(3) of the Immigration and Nationality Act. Part II discusses current issues that plague immigration adjudication when it comes to the consideration of mental health. Part III outlines three concrete guidelines the Board of Immigration Appeals should provide for immigration judges considering mental health in the particularly serious crime determination.

  1.  See Virginia Barber-Rioja & Alexandra Garcia-Mansilla, Special Considerations When Conducting Forensic Psychological Evaluations for Immigration Court, 75 J. Clinical Psych. 2049, 2051 (2019) (canvassing the various circumstances resulting in greater mental health risks for immigrants).
  2.  See Irina Verhülsdonk, Mona Shahab & Marc Molendijk, Prevalence of Psychiatric Disorders Among Refugees and Migrants in Immigration Detention: Systematic Review with Meta-Analysis, 7 BJPsych Open 1, 1, 5 (2021) (reporting that among adult migrants, prevalence rates were 68% for depression, 54% for anxiety, and 42% for post-traumatic stress disorder).
  3.  See Matter of M-J-K-, 26 I. & N. Dec. 773, 773 (B.I.A. 2016); ICE Health Service Corps, U.S. Immigr. & Customs Enf’t (June 9, 2023), https://www.ice.gov/detain/ice-health-service-corps [https://perma.cc/2SJ3-MLJB].
  4.  Matter of B-Z-R, 28 I. & N. Dec. 563, 563, 567 (A.G. 2022) (overruling the Board of Immigration Appeals’ holding in Matter of G-G-S-, 26 I. & N. Dec. 339 (B.I.A. 2014), that adjudicators may not consider the mental health of a respondent in determining whether a respondent was convicted of a particularly serious crime).
  5.  Id. at 563 (quoting 8 U.S.C. § 1158(b)(2)(A)(ii)).
  6.  8 U.S.C. § 1158(c)(2)–(3).
  7.  Holly Straut-Eppsteiner, Cong. Rsch. Serv., R47077, U.S. Immigration Courts and the Pending Cases Backlog 1, 31 (2022) (noting that at the end of the first quarter of fiscal year (“FY”) 2022, the backlog reached an all-time high of 1.5 million cases, with 578 immigration judges on staff to adjudicate them).
  8.  See Amelia Wilson, Franco I Loved: Reconciling the Two Halves of the Nation’s Only Government-Funded Public Defender Program for Immigrants, 97 Wash. L. Rev. Online 21, 48–49 (2022) (discussing challenges in training immigration judges to evaluate mental health concerns).
  9.  See id. at 50 (discussing shortfalls in funding and immigration judge training).
  10.  Ayala Danzig & Marina Nakic, Appellate Court Clarifies That Immigration Judges Cannot Disregard Mental Health Professional Guidelines, 50 J. Am. Acad. Psychiatry & L. 158, 161 (2022).

A Clash of Constitutional Covenants: Reconciling State Sovereign Immunity and Just Compensation

When two bedrock constitutional guarantees come in conflict, which one prevails? This Note explores the clash between state sovereign immunity and the right to just compensation in inverse condemnation actions. When a state physically invades private property without providing remuneration, plaintiffs rightly take to federal court, asserting their entitlement to just compensation. Yet, state sovereign immunity shields the state from liability—permitting a work-around of the Fifth Amendment. Recognizing this conflict, the federal circuit courts have devised a clever, albeit faulty, solution. Relying on a law review article and dicta, the circuit courts have held that state sovereign immunity can bar inverse condemnation suits in federal courts so long as the state courts theoretically remain open to adjudicate the claims. Yet, as this Note will demonstrate, such an approach is unmoored from precedent and practicability. A proper solution is called for. This Note will discuss alternate ways out of the clash and will ultimately recommend a novel approach: private officer suits with a relaxed qualified immunity bar. As real-world people continue to face permanent damage to their property at the hands of the state, while being deprived of a constitutional guarantee to just compensation, this Note seeks to solve a timely and pressing dilemma.

Introduction: The Clash

Two concepts abound in Anglo-American jurisprudence that shape the contours of sovereign power: state sovereign immunity and the right to just compensation. The first recognizes a supreme authority; the other imposes a limitation on authority. Both are deeply entrenched in the common law.1.Alden v. Maine, 527 U.S. 706, 715 (1999) (“When the Constitution was ratified, it was well established . . . that the Crown could not be sued without consent in its own courts.”); Sinnickson v. Johnson, 17 N.J.L. 129, 145 (N.J. 1839) (“[I]t seems to have been considered a settled principle of universal law, that the right to compensation, is an incident to the exercise of [the eminent domain] power: that the one is so inseparably connected with the other, that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle.”).Show More Yet, while other seemingly contradictory constitutional provisions leave room for “play in the joints”2.Locke v. Davey, 540 U.S. 712, 712 (2004).Show More between them, ensuring both principles are upheld, in many situations state sovereign immunity and the right to just compensation present a zero-sum game. Either the state must consent (or be forced to consent) to liability, or the person whose property has been taken must forego a constitutionally guaranteed remedy of just compensation.3.U.S. Const. amend. V; Chi., Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241 (1897) (incorporating the Amendment against the states).Show More

This circumstance is limited to when a taking is disputed—that is, when the state acts in such a way that deprives the plaintiff of her property or destroys her property, but that is not a formal exercise of the eminent domain power.4.Eric Berger, The Collision of the Takings and State Sovereign Immunity Doctrines, 63 Wash. & Lee L. Rev. 493, 501 (2006).Show More Even though the plaintiff can try to enjoin the government to stop the activity, she at least will suffer a temporary taking for which she is entitled to compensation.5.First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 306–08 (1987).Show More And often, the government activity will result in permanent damage. Yet, state sovereign immunity will likely bar any action for damages in federal court, and the plaintiff will be deprived of just compensation.6.Berger, supranote 4, at 502.Show More She will find herself completely without a federal remedy.

An illustration will ground the point. Recently, confronting a history of heavy rainfall that impeded evacuation efforts during severe weather events, the Texas Department of Transportation installed an impenetrable concrete median in the middle of Interstate 10.7.Devillier v. Texas, No. 20-cv-00223, 2021 WL 1200893, at *1 (S.D. Tex. Feb. 22, 2021).Show More The barrier “effectively created a dam” by “barricading all rainfall on the northside” of the Interstate, so as to allow future travelers to use the southernmost lanes for evacuation.8.Id.Show More When heavy rainfall occurred again, the State’s plan was successful: a significant quantity of water accumulated against the northernmost side of the dam.9.Id.Show More But, then, with nowhere to drain, the water flooded and destroyed private property to the north of the Interstate.10 10.Id.Show More When the owners brought suit, acknowledging the public benefit of the dam but asserting their constitutional guarantee to just compensation, the State of Texas raised its hands, claiming sovereign immunity.11 11.Id.at *6. Although the magistrate judge found Texas waived its immunity by removing the suit to federal court, this issue is disputed and will not always arise in a proceeding where a state is more careful.Show More The matter is on appeal, but, under current understandings of state sovereign immunity, whether or not the plaintiffs will be able to recover is far from clear.12 12.The U.S Court of Appeals for the Fifth Circuit’s subsequent denial of rehearing en banc inspired a fascinating dissent by Judge Oldham highlighting many of the dangers discussed in this Note, as well as tangential dangers beyond the scope of this Note. See Devillier v. State, 63 F.4th 416, 426–41 (5th Cir. 2023) (Oldham, J., dissenting from the denial of rehearing en banc).Show More

This Note will focus on similar plights—claims of a right to just compensation after an “inverse condemnation” by the state.13 13.SeeUnited States v. Clarke, 445 U.S. 253, 255 (1980) (explaining the difference between inverse condemnation and formal eminent domain).Show More This Note limits its understanding of “inverse condemnation” to situations where private property is physically harmed or physically invaded. This Note will not focus on “regulatory takings,” where a government ordinance so diminishes the value of property that it can be called a “taking.”14 14.See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992).Show More

The Supreme Court has yet to issue a holding on which age-old provision must yield in these cases: state sovereign immunity or the right to just compensation.15 15.But seeFirst Eng.Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (acknowledging the clash between sovereign immunity and just compensation and noting that “the Constitution . . . dictates the remedy for interference with property rights amounting to a taking”); infraSection III.A.Show More In fact, the Court has expressly ducked resolving the clash.16 16.The Court in Palazzolo v. RhodeIsland, 533 U.S. 606 (2001), neglected to address an argument presented in an amicus brief that sovereign immunity always trumps the just compensation guarantee. See Amicus Brief of the Board of County Commissioners of the County of La Plata, Colorado in Support of the Respondents State of Rhode Island, et al., Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047), 2001 WL 15620, at *20–21.Show More In the Court’s October 2020 Term, it did hold that states surrendered their sovereign immunity in the “plan of the Convention” when the federal eminent domain power is being used against a state.17 17.PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2263 (2021).Show More But the Supreme Court has not decided whether state sovereign immunity gives way in a case where a private plaintiff brings suit against a state. In addressing this conflict, the federal circuit courts have adopted a Solomonic approach. Relying on a due process analogy18 18.Reich v. Collins, 513 U.S. 106 (1994).Show More and a law review article,19 19.Richard H. Seamon, The Asymmetry of State Sovereign Immunity, 76 Wash. L. Rev. 1067 (2001).Show More these courts have held that state sovereign immunity bars a claim for inverse condemnation in federal court, so long as the state courts theoretically remain open to adjudicate federal takings claims.20 20.DLX, Inc. v. Kentucky, 381 F.3d 511, 527 (6th Cir. 2004) (citing Reich, 513 U.S. at 110); Jachetta v. United States, 653 F.3d 898, 909 (9th Cir. 2011); Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 956 (9th Cir. 2008); Hutto v. S.C. Ret. Sys., 773 F.3d 536, 552 (4th Cir. 2014); Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1213 (10th Cir. 2019); Frein v. Pa. State Police, 47 F.4th 247, 257 (3d Cir. 2022).Show More Yet, for reasons outlined below, this approach is unmoored from reason, history, and Supreme Court precedent. This Note will offer potential ways out of the thicket that are superior to the current approach of the lower federal courts. In so doing, this Note makes a few novel contributions. It is the first to point out the fallibilities with the circuit courts’ approach to just compensation suits against states. It is also the first to examine a range of new potential solutions to a clash that continues to evolve. Finally, it is the first to recommend a relaxation of qualified immunity’s “clearly established” bar in order to allow inverse condemnation plaintiffs to recover from public officials.

This Note proceeds as follows. Part I will discuss the histories of state sovereign immunity and just compensation provisions. Part II will discuss the recent approach of the circuit courts in inverse condemnation suits against states and point out why this approach is in error. Part III will offer novel potential answers. Part IV will conclude.

  1.  Alden v. Maine, 527 U.S. 706, 715 (1999) (“When the Constitution was ratified, it was well established . . . that the Crown could not be sued without consent in its own courts.”); Sinnickson v. Johnson, 17 N.J.L. 129, 145 (N.J. 1839) (“[I]t seems to have been considered a settled principle of universal law, that the right to compensation, is an incident to the exercise of [the eminent domain] power: that the one is so inseparably connected with the other, that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle.”).
  2.  Locke v. Davey, 540 U.S. 712, 712 (2004).
  3.  U.S. Const. amend. V; Chi., Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241 (1897) (incorporating the Amendment against the states).
  4.  Eric Berger, The Collision of the Takings and State Sovereign Immunity Doctrines, 63 Wash. & Lee L. Rev. 493, 501 (2006).
  5.  First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 306–08 (1987).
  6.  Berger, supra note 4, at 502.
  7.  Devillier v. Texas, No. 20-cv-00223, 2021 WL 1200893, at *1 (S.D. Tex. Feb. 22, 2021).
  8.  Id.
  9.  Id.
  10.  Id.
  11.  Id. at *6. Although the magistrate judge found Texas waived its immunity by removing the suit to federal court, this issue is disputed and will not always arise in a proceeding where a state is more careful.
  12.  The U.S Court of Appeals for the Fifth Circuit’s subsequent denial of rehearing en banc inspired a fascinating dissent by Judge Oldham highlighting many of the dangers discussed in this Note, as well as tangential dangers beyond the scope of this Note. See Devillier v. State, 63 F.4th 416, 426–41 (5th Cir. 2023) (Oldham, J., dissenting from the denial of rehearing en banc).
  13.  See United States v. Clarke, 445 U.S. 253, 255 (1980) (explaining the difference between inverse condemnation and formal eminent domain).
  14.  See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992).
  15.  But see First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (acknowledging the clash between sovereign immunity and just compensation and noting that “the Constitution . . . dictates the remedy for interference with property rights amounting to a taking”); infra Section III.A.
  16.  The Court in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), neglected to address an argument presented in an amicus brief that sovereign immunity always trumps the just compensation guarantee. See Amicus Brief of the Board of County Commissioners of the County of La Plata, Colorado in Support of the Respondents State of Rhode Island, et al., Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047), 2001 WL 15620, at *20–21.
  17.  PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2263 (2021).
  18.  Reich v. Collins, 513 U.S. 106 (1994).
  19.  Richard H. Seamon, The Asymmetry of State Sovereign Immunity, 76 Wash. L. Rev. 1067 (2001).
  20.  DLX, Inc. v. Kentucky, 381 F.3d 511, 527 (6th Cir. 2004) (citing Reich, 513 U.S. at 110); Jachetta v. United States, 653 F.3d 898, 909 (9th Cir. 2011); Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 956 (9th Cir. 2008); Hutto v. S.C. Ret. Sys., 773 F.3d 536, 552 (4th Cir. 2014); Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1213 (10th Cir. 2019); Frein v. Pa. State Police, 47 F.4th 247, 257 (3d Cir. 2022).

Second-Order Decisions in Rights Conflicts

Introduction

How should judges decide hard cases involving rights conflicts? Standard debates about how to answer this question are usually framed in jurisprudential terms. Legal positivists claim that the law is sufficiently “open textured” that it will not provide judges with guidance in some range of cases.1.See H.L.A. Hart, The Concept of Law 127–29 (2d ed. 1994).Show More The law is said to “run out” or to be incomplete.2.Id. at 272 (“[I]n any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete.”).Show More In such cases, legal sources—constitutions, statutes, executive orders, agency regulations, and so on—do not provide reasons that determine the legal question at issue. When the law runs out in this way, judges have no choice but to exercise discretion. They cannot reason within the limits of the law. They must reach beyond it by relying on policy considerations or judgments drawn from political morality. How often this happens is a matter of dispute among legal positivists and theorists who take a more critical stance toward the law.3.See Brian Leiter, Legal Indeterminacy, 1 Legal Theory 481, 487–88 (1995) (distinguishing “global” from “local” indeterminacy and rejecting the former); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 470 (1987) (criticizing the “strong” indeterminacy thesis that all cases are “hard” cases).Show More But whether the law runs out only in some cases, or, more radically, in all of them, judges will face the question of how to adjudicate conflicts when they lack sufficient legal reasons.

The traditional competitor to both positivist and critical legal theories has been an anti-positivist view that rejects the possibility of judicial discretion in hard cases. Most famously, Ronald Dworkin defended a single-right-answer thesis, according to which every conflict of rights has a unique or determinate outcome.4.See Ronald Dworkin, Taking Rights Seriously 81–130, 279–90 (1977) [hereinafter Dworkin, Taking Rights Seriously]; Ronald Dworkin, No Right Answer?, 53 N.Y.U. L. Rev. 1, 32 (1978).Show More That is because, on his view, the law never (or almost never) runs out. At least in complex and well-developed legal systems, there are always legal sources, as well as moral values and principles embedded within the law, that provide judges with reasons to favor one outcome over another.5.See Dworkin, Taking Rights Seriously, supra note 4, at 286.Show More Judges never have to reach beyond the law to adjudicate rights conflicts. The law, in this view, is a complete system. It will contain sufficient reasons for making legal decisions, and the job of judges, however difficult, is to discern them.

Attempting to sidestep this long-standing debate over whether—or to what extent—there are hard cases, some legal scholars have recently taken up the question of how to decide such cases if, or when, they do indeed exist. In a leading account offered by Charles Barzun and Michael Gilbert, when ordinary considerations of law and justice leave judges uncertain about how to adjudicate rights disputes, those judges should adopt a second-order decision-making procedure to determine the outcome.6.On the distinction between first- and second-order decisions, see Cass R. Sunstein & Edna Ullmann-Margalit, Second-Order Decisions, 110 Ethics 5, 6–7 (1999) [hereinafter Sunstein & Ullmann-Margalit, Second-Order Decisions]; Edna Ullmann-Margalit, Difficult Choices: To Agonize or Not to Agonize?, 74 Soc. Rsch. 51, 70–71 (2007) [hereinafter Ullmann-Margalit, Difficult Choices]; Edna Ullmann-Margalit & Sidney Morgenbesser, Picking and Choosing, 44 Soc. Rsch. 757, 775 (1977) [hereinafter Ullmann-Margalit & Morgenbesser, Picking and Choosing].Show More More specifically, and by analogy to the idea of “least cost avoidance” familiar from the economic analysis of private law,7.See Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 140 (1970) (discussing the “cheapest cost avoider”).Show More they argue for a conflict-avoidance principle, which holds that “courts should decide hard cases against the party who could have more easily avoided the constitutional conflict in the first place.”8.Charles L. Barzun & Michael D. Gilbert, Conflict Avoidance in Constitutional Law, 107 Va. L. Rev. 1, 3 (2021) (emphasis omitted).Show More The promise of this principle is that, by following it, judges would resolve hard cases in a way that encourages the parties to avoid rights conflicts. If successful, this decision-making strategy would, in turn, reduce the incidence of hard cases. Judges would face fewer conflicts in which they are uncertain about how to apply the relevant first-order considerations of law and political morality.

The conflict-avoidance approach to adjudicating hard cases is both novel and ingenious. To our knowledge, and perhaps surprisingly, no one has previously proposed resolving legal indeterminacies by aiming to reduce cases that produce such indeterminacies. Of course, others have argued that their theories of adjudication would ameliorate trenchant political, social, and cultural controversies, including those involving constitutional rights.9.See generally, e.g., Jamal Greene, How Rights Went Wrong (2021) (arguing that rights balancing can reduce social and political conflict); Robert L. Tsai, Practical Equality: Forging Justice in a Divided Nation (2019) (defending a pragmatic approach to achieving equality).Show More But Barzun and Gilbert’s proposal is distinctive in that it only applies in hard cases. Theirs is a “meta-principle”10 10.Barzun & Gilbert, supra note 8, at 7 n.18.Show More of adjudication, rather than a general approach applicable to all cases involving rights conflicts. In conflict avoidance, hard cases are resolved recursively for the purpose of preventing more hard cases.11 11.In recent work, Aaron Tang has proposed a “harm avoider” approach to constitutional adjudication. See Aaron Tang, Harm-Avoider Constitutionalism, 109 Calif. L. Rev. 1847, 1849 (2021). His theory bears some resemblance to Barzun and Gilbert’s, but, for our purposes, there is a crucial difference. Barzun and Gilbert’s theory of conflict avoidance adopts an ex ante perspective, which is focused on what parties to a conflict could have done in advance to avoid it. See Barzun & Gilbert, supra note 8, at 10, 28. Tang’s theory considers both what measures parties could have taken “retrospectively” and what measures they might take “prospectively” to avoid the adverse consequences of a court decision. See Tang, supra, at 1885 n.265. But as Barzun and Gilbert point out, Tang’s approach foregrounds the least cost bearer rather than the least cost avoider. See Barzun & Gilbert, supra note 8, at 16 n.46. His theory also raises the question of how courts should make decisions when the least cost avoider and the least cost bearer are different parties. The party that is best positioned to avoid harms ex ante might not be the party that is best positioned to bear those costs ex post. Here we focus mainly on the pure ex ante theory offered by Barzun and Gilbert to justify their conflict-avoidance principle, although we return briefly to Tang’s view infra Subsection II.D.2 at note 135 to mark its possible distinctiveness from other proportionality or interest-balancing views.Show More

Despite its originality and prima facie appeal, we argue that there are several reasons to avoid adoption of the conflict-avoidance principle. The argument for that principle draws on an analogy to accidents in tort law. Both accidents and hard cases involve significant costs. Just as car accidents lead to physical injuries—as well as to the administrative costs of insurance, adjudication, and compensation—hard cases produce costs for the parties to litigation and for the courts that decide them. But this analogy is one-sided and potentially misleading. Whereas accidents only produce costs, hard cases may generate important epistemic and moral benefits by serving as vehicles for deliberation, social contestation, and political or legal reform. Thinking of hard cases as if they were accidents also contributes to a pessimistic conception of rights adjudication, one with a neoliberal or libertarian tilt that favors private ordering over public and democratic decision-making.

The case for conflict avoidance is also incomplete. Courts faced with hard cases have available to them a variety of second-order decision procedures, including deference to other (or future) decision-makers, defaults favoring political values of liberty or equality, interest balancing (including theories of proportionality review and harm avoidance), and the use of lotteries or other chance devices. Selecting among these second-order strategies requires justification. If judges adopt conflict avoidance, they must have reasons to reject the others. Surveying alternatives can help clarify the values that support cost-avoidance as well as those that recommend against it.

Second-order decision-making strategies may have an important place in deciding hard cases. But in adopting them, we urge caution. The use of hypothetical examples as toy cases—to demonstrate how a theory works, rather than to recommend a particular application—may suggest that hard cases are far more prevalent in the legal system than in fact they are. Many cases that are described as “hard” may turn out to involve reasonable disagreements, rather than more intractable forms of legal incompleteness, such as indeterminacy or radical uncertainty about what the law or justice requires. And in those cases, judges may be able to proceed based on first-order reasons, without having to ascend to second-order theories of adjudication. Indeed, facing the prospect of applying second-order procedures may lead judges to conclude that law and morality do, after all, provide the right answers.

  1.  See H.L.A. Hart, The Concept of Law 127–29 (2d ed. 1994).
  2.  Id. at 272 (“[I]n any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete.”).
  3.  See Brian Leiter, Legal Indeterminacy, 1 Legal Theory 481, 487–88 (1995) (distinguishing “global” from “local” indeterminacy and rejecting the former); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 470 (1987) (criticizing the “strong” indeterminacy thesis that all cases are “hard” cases).
  4.  See Ronald Dworkin, Taking Rights Seriously 81–130, 279–90 (1977) [hereinafter Dworkin, Taking Rights Seriously]; Ronald Dworkin, No Right Answer?, 53 N.Y.U. L. Rev. 1, 32 (1978).
  5.  See Dworkin, Taking Rights Seriously, supra note 4, at 286.
  6.  On the distinction between first- and second-order decisions, see Cass R. Sunstein & Edna Ullmann-Margalit, Second-Order Decisions, 110 Ethics 5, 6–7 (1999) [hereinafter Sunstein & Ullmann-Margalit, Second-Order Decisions]; Edna Ullmann-Margalit, Difficult Choices: To Agonize or Not to Agonize?, 74 Soc. Rsch. 51, 70–71 (2007) [hereinafter Ullmann-Margalit, Difficult Choices]; Edna Ullmann-Margalit & Sidney Morgenbesser, Picking and Choosing, 44 Soc. Rsch. 757, 775 (1977) [hereinafter Ullmann-Margalit & Morgenbesser, Picking and Choosing].
  7.  See Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 140 (1970) (discussing the “cheapest cost avoider”).
  8.  Charles L. Barzun & Michael D. Gilbert, Conflict Avoidance in Constitutional Law, 107 Va. L. Rev. 1, 3 (2021) (emphasis omitted).
  9.  See generally, e.g., Jamal Greene, How Rights Went Wrong (2021) (arguing that rights balancing can reduce social and political conflict); Robert L. Tsai, Practical Equality: Forging Justice in a Divided Nation (2019) (defending a pragmatic approach to achieving equality).
  10.  Barzun & Gilbert, supra note 8, at 7 n.18.
  11.  In recent work, Aaron Tang has proposed a “harm avoider” approach to constitutional adjudication. See Aaron Tang, Harm-Avoider Constitutionalism, 109 Calif. L. Rev. 1847, 1849 (2021). His theory bears some resemblance to Barzun and Gilbert’s, but, for our purposes, there is a crucial difference. Barzun and Gilbert’s theory of conflict avoidance adopts an ex ante perspective, which is focused on what parties to a conflict could have done in advance to avoid it. See Barzun & Gilbert, supra note 8, at 10, 28. Tang’s theory considers both what measures parties could have taken “retrospectively” and what measures they might take “prospectively” to avoid the adverse consequences of a court decision. See Tang, supra, at 1885 n.265. But as Barzun and Gilbert point out, Tang’s approach foregrounds the least cost bearer rather than the least cost avoider. See Barzun & Gilbert, supra note 8, at 16 n.46. His theory also raises the question of how courts should make decisions when the least cost avoider and the least cost bearer are different parties. The party that is best positioned to avoid harms ex ante might not be the party that is best positioned to bear those costs ex post. Here we focus mainly on the pure ex ante theory offered by Barzun and Gilbert to justify their conflict-avoidance principle, although we return briefly to Tang’s view infra Subsection II.D.2 at note 135 to mark its possible distinctiveness from other proportionality or interest-balancing views.